The Statute of the ICTR grants the Tribunal the right to try persons accused of genocide (art. 2), crimes against humanity (art. 3), and certain war crimes applicable to internal armed conflicts (art. 4). Like the Yugoslav Statute, the Rwanda Statute also considers criminal responsibility as individuals and as superiors (art. 6(1) and 6(3)). Owing to differences in events on the ground (Rwanda being primarily an internal conflict characterized by genocide) the language of the ICTY and ICTR Statutes varies somewhat as to what may be prosecuted within each respective court.

The ICTY and ICTR are separate institutions, each having its own Statute and Rules of Procedure and Evidence. Neither Tribunal is bound by the jurisprudence of the other, although they tend to rely upon and agree substantively with the legal conclusions in prior decisions of the Tribunals. However, the ICTY and ICTR do share a common Appeals Chamber, which has adopted the following position on precedent: "[I]n the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice." (Aleksovski Appeals Chamber Judgment (ICTY) of 24 March 2000, adopted by the Semanza Decision, Separate Opinion of Judge Shahabuddeen (ICTR) of 31 May 2000).

Thus far, the ICTR has tried approximately ten cases, with about dozen accused. Approximately four cases are in various stages of the appeals process. Below are summaries of the most notable precedents to date.

Prosecutor v. Akayesu

The Akayesu case was the first international genocide trial in history, and its findings have been relied upon quite extensively by subsequent ICTR decisions. Jean-Paul Akayesu was the bourgmestre (mayor) of Taba commune in Rwanda. In this position he had significant authority or influence over military, political, and civil activities in Taba. As a result of mass crimes committed in his territory by Hutus against Tutsis and Hutu moderates, Akayesu was charged with genocide, crimes against humanity, and war crimes for crimes including extermination, murder, rape, torture, and other inhumane acts.

The Trial Chamber considered the scope and elements of genocide. In its Judgment (Sept. 2, 1998), the Trial Chamber held that to incur responsibility for genocide, any one of an enumerated list of acts must be committed against an individual specifically because the individual belonged to a racial, ethnic, religious, or national group. The "victim is chosen not because of his individual identity, but rather on account of his membership" in the protected group. It thus concluded that a victim of genocide "is the group itself and not only the individual." The Trial Chamber defined each protected group: in general, an ethnic group is one "whose members share a common language or culture"; members of a religious group "share the same religion, denomination or mode of worship"; a national group constitutes "a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties"; and a racial group "is based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors." In considering whether groups protected by the Genocide Convention should be limited to these four groups, the Chamber opined that protection should extend to "any stable and permanent group," markedly extending the reach of the Convention.

The Trial Chamber held that direct and public incitement to commit genocide is punishable even if the accused is not successful in achieving the result desired; contrarily, for complicity in genocide to be punishable, it must be proven that genocide has indeed been committed.

Considering the scope of crimes against humanity, the Trial Chamber noted that certain inhumane acts must be committed as part of a widespread or systematic attack against a civilian population. It defined a civilian population broadly, as comprising "people who are not taking any active part in the hostilities, including members of the armed forces who laid down their arms and those persons placed hors de combat by sickness, wounds, detention or any other cause." Notably, it would appear that crimes against humanity – historically associated with civilians – can be committed against prisoners of war.

The ICTR defined rape and sexual violence for the first time in international law. Rape was found to constitute "a physical invasion of a sexual nature committed on a person under circumstances which are coercive." Sexual violence, which includes and is broader than rape, is "any act of a sexual nature which is committed on a person under circumstances which are coercive."

The Trial Chamber convicted Akayesu of genocide and crimes against humanity for a number of crimes, including historic convictions of rape as a crime against humanity and as an instrument of genocide.

Prosecutor v. Kambanda

This case represents the first time that a former head of government has been convicted of genocide or crimes against humanity by an international tribunal, and confirms that heads of states do not have immunity from criminal responsibility for certain international crimes.

The accused, Jean Kambanda, was the Prime Minister of Rwanda during the 1994 genocide. Charged with six counts of genocide and crimes against humanity for extermination and murder, Kambanda pleaded guilty. The Trial Chamber accepted his guilty plea as valid, and in its Judgment (Sept. 4, 1998) sentenced Kambanda to life imprisonment. Kambanda appealed both the sentence and the judgment, challenging the validity of the guilty plea and seeking a new trial. The Appeals Chamber Judgment (Oct. 19, 2000) upheld the judgment and sentence.

Prosecutor v. Barayagwiza

This case, in which the rights of the accused were central, exploded in controversy well before it went to trial. Jean Bosco Barayagwiza was charged with genocide and crimes against humanity. However, after alleging that his due process rights had been violated (including that there was a substantial delay in transferring him to the Tribunal after his arrest; that he was not promptly informed of the charges against him; and that his writ of habeas corpus petition had been ignored), and consequently that his arrest and detention were illegal, he filed an extremely urgent motion to review and nullify the arrest. The Appeals Chamber (Nov. 3, 1999) agreed with the accused that his due process rights had been repeatedly violated by the prosecution. As a remedy, it dismissed the indictment against him, with prejudice (meaning that no other court could prosecute him), and ordered his immediate release.

Outraged, the government of Rwanda announced it would no longer cooperate with the Tribunal, thus crippling the ability of the Tribunal to function. The Prosecutor immediately filed a request for review or reconsideration, asserting that new facts had come to light which showed that the due process violations were not as extensive as they had appeared, and that any violations were not attributable to the prosecution. In its review of the Decision, the Appeals Chamber (March 31, 2000) concurred largely with the prosecution. It found that the new information showed that the defendant’s rights had still been violated, but the violations were not nearly as egregious as previously appeared, and most were not the fault of the prosecution or the Tribunal. Holding that all violations require a remedy, but that the remedy should be proportionate to the harm, the Appeals Chamber altered its previous ruling. Although it now declined to release Barayagwiza, the Chamber decided that after the trial on the merits, if the appellant is found not guilty, he will be entitled to financial compensation; if he is found guilty, "his sentence shall be reduced to take account of the violation of his rights."

Note on ICTR Precedent:

Of particular interest is what the Appeals Chamber will hold in regards to war crimes. In the ICTR, no defendant has yet been convicted of a war crime, although there have been findings of guilt of genocide and crimes against humanity. The standard adopted in Akayesu and followed by subsequent ICTR judgments — that an accused must be acting in "furtherance of the war effort" to be found guilty under Article 4 of the Statute — is up on appeal and will hopefully be reversed. In applying this standard, the Trial Chambers appear to be concluding that there was genocide in Rwanda and an armed conflict in Rwanda, running parallel to each other, and each of the crimes committed by the accused were committed during the course of the genocide, not as part of the armed conflict, even when military leaders are the defendants. All ICTR defendants have thus far been acquitted of the war crime charges. This serves as devastating precedent for prosecuting war crimes in other internal armed conflicts.