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INTERNATIONAL WAR CRIMES TRIBUNAL BILL 1994 [1995]
INTERNATIONAL WAR CRIMES TRIBUNAL (CONSEQUENTIAL AMENDMENTS) BILL 1994
[1995]

Order of the day read for the further consideration of messages nos 350

and 351 from the House of Representatives in committee of the whole (see

entry no. 27, 1 February 1995).

In the committee

Consideration resumed of the messages--and of the further amendments

moved by the Minister for Immigration and Ethnic Affairs (Senator

Bolkus) to the International War Crimes Tribunal Bill 1994 [1995]:

Clause 1, page 1, line 4, omit "Tribunal", substitute "Tribunals".

Clause 3, page 2, line 6, omit "the Tribunal", substitute "a Tribunal".

Clause 4, page 3, definition of "forfeiture order", paragraph (a), line

2, omit "the Tribunal" (first occurring), substitute "a Tribunal".

Clause 4, page 3, definition of "forfeiture order", paragraph (b), line

5, omit "the Tribunal" (first occurring), substitute "a Tribunal".

Clause 4, page 3, after definition of "forfeiture order", insert the

following definition:

""Former Yugoslavia Tribunal':

(a) means the International Tribunal for the Prosecution of Persons

Responsible for Serious Violations of International Humanitarian

Law Committed in the Territory of the Former Yugoslavia since

1991, established by Resolution 827 (1993) of the Security

Council of the United Nations, a copy of the English text of

which is set out in Schedule 1; and

(b) includes any of the organs referred to in Article 11 of the

Statute of the Tribunal;".

Clause 4, page 4, after definition of "recently used conveyance", insert

the following definition:

""Rwanda Tribunal':

(a) means the International Criminal Tribunal for the Prosecutionof

Persons Responsible for Genocide and other Serious Violations of

International Humanitarian Law Committed in the Territory of

Rwanda and Rwandan citizens responsible for genocide and other

such violations committed in the territory of neighbouring

States, between 1 January 1994 and 31 December 1994,

establishedby Resolution 955 (1994) of the Security Council of

the United Nations, a copy of the English text of which is set

out in Schedule 3; and

(b) includes any of the organs referred to in Article 10 of the

Statute of the Tribunal;".

Clause 4, page 4, definition of "Statute of the Tribunal", lines 26 to

29, omit the definition, substitute the following definition:

""Statute of the Tribunal' means:

(a) in the case of the Former Yugoslavia Tribunal -- the Statute of

the Tribunal (a copy of the English text of which is set out in

Schedule 2) adopted by Resolution 827 (1993) of the Security

Council of the United Nations (a copy of the English text of

which is set out in Schedule 1); and

(b) in the case of the Rwanda Tribunal -- the Statute of the

Tribunal (a copy of the English text of which is set out in

Schedule 4) adopted by Resolution 955 (1994) of the Security

Council of the United Nations (a copy of the English text of

which is set out in Schedule 3);".

Clause 4, page 5, definition of "Tribunal", lines 1 to 9, omit the

definition, substitute the following definition:

""Tribunal' means:

(a) the Former Yugoslavia Tribunal; or

(b) the Rwanda Tribunal;".

Clause 4, page 5, definition of "Tribunal offence", lines 10 and 11,

omit the definition, substitute the following definition:

""Tribunal offence' means:

(a) an offence for which the Former Yugoslavia Tribunal has the

power to prosecute persons under Article 2, 3, 4 or 5 of the

Statute of the Tribunal; or

(b) an offence for which the Rwanda Tribunal has the power to

prosecute persons under Article 2, 3 or 4 of the Statute of the

Tribunal;".

Part 2, page 5, heading, line 20, omit "THE TRIBUNAL", substitute "A

TRIBUNAL''.

Clause 7, page 5, subclause (1), line 22, omit "the Tribunal",

substitute "a Tribunal".

Clause 7, page 6, subclause (3), line 1, omit "the Tribunal", substitute

"a Tribunal".

Part 3, page 6, heading, line 20, omit "THE TRIBUNAL", substitute "A

TRIBUNAL".

Clause 9, page 6, paragraph (a), line 24, omit "the Tribunal",

substitute "a Tribunal".

Clause 10, page 7, paragraph (2)(a), lines 3 and 4, omit "the Tribunal",

substitute "a Tribunal".

Clause 11, page 7, paragraph (a), lines 18 to 20, omit the paragraph,

substitute the following paragraph:

"(a) the Attorney-General is satisfied that a request from a

Tribunal that would oblige the Attorney-General to issue a

notice under section 9 in relation to the person will not be

received; or".

Clause 13, page 8, paragraph (a), lines 9 to 11, omit the paragraph,

substitute the following paragraph:

"(a) the Attorney-General is satisfied that a request from a

Tribunal that would oblige the Attorney-General to issue a

notice under section 9 in relation to the person will not be

received; or".

Clause 16, page 9, at end of subclause (1), add "that sought the arrest

of the person under that Division".

Clause 16, page 9, paragraph (3)(a), line 36, omit "exceptional",

substitute "special".

Clause 21, page 11, subclause (1), line 2, omit "a person", substitute

"the person".

Clause 24, page 12, subclause (1), line 2, omit "the Tribunal",

substitute "a Tribunal".

Clause 25, page 12, paragraph (a), line 15, omit "the Tribunal",

substitute "a Tribunal".

Part 4, page 12, heading, line 24, omit "THE TRIBUNAL", substitute "A

TRIBUNAL".

Clause 26, page 12, subclause (1), line 27, omit "the Tribunal",

substitute "a Tribunal".

Clause 26, page 13, paragraph (3)(b), line 5, omit "exceptional",

substitute "special".

Clause 31, page 14, paragraph (3)(a), line 25, omit "the Tribunal",

substitute "a Tribunal".

Clause 32, page 14, subclause (2), definition of "Tribunal immunity

certificate", paragraph (a), line 37, omit "the Tribunal" (first

occurring), substitute "a Tribunal".

Clause 33, page 15, paragraph (1)(a), line 11, omit "the Tribunal",

substitute "a Tribunal".

Clause 33, page 15, paragraph (2)(b), line 23, omit "exceptional",

substitute "special".

Clause 35, page 16, paragraph (1)(a), line 18, omit "the Tribunal",

substitute "a Tribunal".

Clause 35, page 16, paragraph (2)(b), line 38, omit "exceptional",

substitute "special".

Clause 36, page 17, paragraph (1)(a), line 3, omit "the Tribunal",

substitute "a Tribunal".

Clause 36, page 18, paragraph (4)(b), line 15, omit "exceptional",

substitute "special".

Clause 37, page 18, subclause (1), line 21, omit "The Tribunal",

substitute "A Tribunal".

Clause 38, page 19, paragraph (a), line 6, omit "the Tribunal",

substitute "a Tribunal".

Clause 39, page 19, paragraph (1)(a), line 14, omit "the Tribunal",

substitute "a Tribunal".

Clause 39, page 19, paragraph (1)(b), line 16, omit "the Tribunal",

substitute "a Tribunal".

Clause 39, page 19, paragraph (1)(c), line 17, omit "the Tribunal",

substitute "a Tribunal".

Clause 40, page 19, subclause (1), line 33, omit "the Tribunal",

substitute "a Tribunal".

Clause 40, page 20, paragraph (2)(b), line 5, omit "exceptional",

substitute "special".

Part 5, page 20, heading, line 6, omit "THE TRIBUNAL", substitute "A

TRIBUNAL".

Clause 41, page 20, subclause (1), line 8, omit "The Tribunal",

substitute "A Tribunal".

Clause 41, page 20, subclause (2), line 10, omit "the Tribunal",

substitute "a Tribunal".

Clause 42, page 20, subclause (1), line 16, omit "the Tribunal",

substitute "a Tribunal".

Clause 42, page 20, at end of subclause (1), add "in respect of the

Tribunal".

Clause 42, page 20, subclause (3), lines 24 and 25, omit "adopted under

Article 15 of the Statute of the Tribunal", substitute the following

words and paragraphs:

"adopted under:

(a) in the case of the Former Yugoslavia Tribunal -- Article 15 of

the Statute of the Tribunal; or

(b) in the case of the Rwanda Tribunal -- Article 14 of the Statute

of the Tribunal.".

Clause 43, page 20, paragraph (a), line 28, omit "the Tribunal",

substitute "a Tribunal".

Clause 43, page 20, paragraph (b), line 30, omit "the Tribunal",

substitute "a Tribunal".

Clause 44, page 21, paragraph (1)(a), line 5, omit "the Tribunal",

substitute "a Tribunal".

Clause 44, page 21, paragraph (3)(b), line 20, omit "exceptional",

substitute "special".

Clause 48, page 23, paragraph (1)(a), line 20, omit "the Tribunal's

proceeding or investigation relates", substitute "the application for

the warrant relates".

Clause 72, page 36, at end of paragraph (1)(h), add "to which the

person's custody relates".

Clause 72, page 36, at end of paragraph (1)(i), add "to which the

person's custody relates".

Clause 77, page 38, subclause (4), line 33, omit "the Tribunal",

substitute "a Tribunal".

Clause 77, page 38, paragraph (5)(b), line 37, omit "the Tribunal",

substitute "a Tribunal".

Clause 82, page 40, paragraph (b), line 13, omit "the Tribunal",

substitute "a Tribunal".

Clause 83, page 40, line 15, omit "the Tribunal", substitute "a

Tribunal".

Schedule 2, page 43, heading, omit the heading, substitute the following

heading:

"STATUTE OF THE FORMER YUGOSLAVIA TRIBUNAL".

At end of bill, page 55, add the following Schedules:

"SCHEDULE 3Section 4

RESOLUTION 955 (1994)

Adopted by the Security Council at its 3453rd meeting on 8 November 1994

The Security Council,

Reaffirming all its previous resolutions on the situation in Rwanda,

Having considered the reports of the Secretary-General pursuant to

paragraph 3 of resolution 935 (1994) of 1 July 1994 (S/1994/879 and

S/1994/906), and having taken note of the reports of the Special

Rapporteur for Rwanda of the United Nations Commission on Human Rights

(S/1994/1157, annex I and annex II),

Expressing appreciation for the work of the Commission of Experts

established pursuant to resolution 935 (1994), in particular its

preliminary report on violations of international humanitarian law in

Rwanda transmitted by the Secretary-General's letter of 1 October 1994

(S/1994/1125),

Expressing once again its grave concern at the reports indicating that

genocide and other systematic, widespread and flagrant violations of

international humanitarian law have been committed in Rwanda,

Determining that this situation continues to constitute a threat to

international peace and security,

Determined to put an end to such crimes and to take effective measures

to bring to justice the persons who are responsible for them,

Convinced that in the particular circumstances of Rwanda, the

prosecution of persons responsible for serious violations of

international humanitarian law would enable this aim to be achieved and

would contribute to the process of national reconciliation and to the

restoration and maintenanceof peace,

Believing that the establishment of an international tribunal for the

prosecution of persons responsible for genocide and the other

above-mentioned violations of international humanitarian law will

contribute to ensuring that such violations are halted and effectively

redressed,

Stressing also the need for international cooperation to strengthen the

courts and judicial system of Rwanda, having regard in particular to the

necessity for those courts to deal with large numbers of suspects,

Considering that the Commission of Experts established pursuant to

resolution 935 (1994) should continue on an urgent basis the collection

of information relating to evidence of grave violations of international

humanitarian law committed in the territory of Rwanda and should submit

its final report to the Secretary-General by 30 November 1994,

Acting under Chapter VII of the Charter of the United Nations,

1. Decides hereby, having received the request of the Government of

Rwanda (S/1994/1115), to establish an international tribunal for the

sole purpose of prosecuting persons responsible for genocide and other

serious violations of international humanitarian law committed in the

territory of Rwanda and Rwandan citizens responsible for genocide and

other such violations committed in the territory of neighbouring States,

between 1 January 1994 and 31 December 1994 and to this end to adopt the

Statute of the International Criminal Tribunal for Rwanda annexed

hereto;

2. Decides that all States shall cooperate fully with the International

Tribunal and its organs in accordance with the present resolution and

the Statute of the International Tribunal and that consequently all

States shall take any measures necessary under their domestic law to

implement the provisions of the present resolution and the Statute,

including the obligation of States to comply with requests for

assistance or orders issued by a Trial Chamber under Article 28 of the

Statute, and requests States to keep the Secretary-General informed of

such measures;

3. Considers that the Government of Rwanda should be notified prior to

the taking of decisions under articles 26 and 27 of the Statute;

4. Urges States and intergovernmental and non-governmental

organizationsto contribute funds, equipment and services to the

International Tribunal, including the offer of expert personnel;

5. Requests the Secretary-General to implement this resolution urgently

and in particular to make practical arrangements for the effective

functioning of the International Tribunal, including recommendations to

the Council as to possible locations for the seat of the International

Tribunal at the earliest time and to report periodically to the Council;

6. Decides that the seat of the International Tribunal shall be

determined by the Council having regard to considerations of justice and

fairness as well as administrative efficiency, including access to

witnesses, and economy, and subject to the conclusion of appropriate

arrangements between the United Nations and the State of the seat,

acceptable to the Council, having regard to the fact that the

International Tribunal may meet away from its seat when it considers it

necessary for the efficient exercise of its functions; and decides that

an office will be established and proceedings will be conducted in

Rwanda, where feasible and appropriate, subject to the conclusion of

similar appropriate arrangements;

7. Decides to consider increasing the number of judges and Trial

Chambers of the International Tribunal if it becomes necessary;

8. Decides to remain actively seized of the matter.

"SCHEDULE 4Section 4

STATUTE OF THE RWANDA TRIBUNAL

Having been established by the Security Council acting under Chapter VII

of the Charter of the United Nations, the International Criminal

Tribunal for the Prosecution of Persons Responsible for Genocide and

Other Serious Violations of International Humanitarian Law Committed in

the Territory of Rwanda and Rwandan citizens responsible for genocide

and other such violations committed in the territory of neighbouring

States, between 1 January 1994 and 31 December 1994 (hereinafter

referred to as "the International Tribunal for Rwanda") shall function

in accordance with the provisions of the present Statute.

Article 1

Competence of the International Tribunal for Rwanda

The International Tribunal for Rwanda shall have the power to prosecute

persons responsible for serious violations of international humanitarian

law committed in the territory of Rwanda and Rwandan citizens

responsible for such violations committed in the territory of

neighbouring States, between 1 January 1994 and 31 December 1994, in

accordance with the provisions of the present Statute.

Article 2

Genocide

1. The International Tribunal for Rwanda shall have the power to

prosecute persons committing genocide as defined in paragraph 2 of this

article or of committing any of the other acts enumerated in paragraph 3

of this article.

2. Genocide means any of the following acts committed with intent to

destroy, in whole or in part, a national, ethnical, racial or religious

group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated

to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

3. The following acts shall be punishable:

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.

Article 3

Crimes against humanity

The International Tribunal for Rwanda shall have the power to prosecute

persons responsible for the following crimes when committed as part of a

widespread or systematic attack against any civilian population on

national, political, ethnic, racial or religious grounds:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation;

(e) Imprisonment;

(f) Torture;

(g) Rape;

(h) Persecutions on political, racial and religious grounds;

(i) Other inhumane acts.

Article 4

Violations of Article 3 common to the Geneva Conventions and of

Additional Protocol II

The International Tribunal for Rwanda shall have the power to prosecute

persons committing or ordering to be committed serious violations of

Article 3 common to the Geneva Conventions of 12 August 1949 for the

Protection of War Victims, and of Additional Protocol II thereto of 8

June 1977. These violations shall include, but shall not be limited to:

(a) Violence to life, health and physical or mental well-being of

persons, in particular murder as well as cruel treatment such as

torture, mutilation or any form of corporal punishment;

(b) Collective punishments;

(c) Taking of hostages;

(d) Acts of terrorism;

(e) Outrages upon personal dignity, in particular humiliating and

degrading treatment, rape, enforced prostitution and any form of

indecent assault;

(f) Pillage;

(g) The passing of sentences and the carrying out of executions

without previous judgement pronounced by a regularly constituted

court, affording all the judicial guarantees which are recognized

as indispensable by civilized peoples;

(h) Threats to commit any of the foregoing acts.

Article 5

Personal jurisdiction

The International Tribunal for Rwanda shall have jurisdiction over

natural persons pursuant to the provisions of the present Statute.

Article 6

Individual criminal responsibility

1. A person who planned, instigated, ordered, committed or otherwise

aided and abetted in the planning, preparation or execution of a crime

referred to in articles 2 to 4 of the present Statute, shall be

individually responsible for the crime.

2. The official position of any accused person, whether as Head of State

or Government or as a responsible Government official, shall not relieve

such person of criminal responsibility nor mitigate punishment.

3. The fact that any of the acts referred to in articles 2 to 4 of the

present Statute was committed by a subordinate does not relieve his or

her superior of criminal responsibility if he or she knew or had reason

to know that the subordinate was about to commit such acts or had done

so and the superior failed to take the necessary and reasonable measures

to prevent such acts or to punish the perpetrators thereof.

4. The fact that an accused person acted pursuant to an order of a

Government or of a superior shall not relieve him or her of criminal

responsibility, but may be considered in mitigation of punishment if the

International Tribunal for Rwanda determines that justice so requires.

Article 7

Territorial and temporal jurisdiction

The territorial jurisdiction of the International Tribunal for Rwanda

shall extend to the territory of Rwanda including its land surface and

airspace as well as to the territory of neighbouring States in respect

of serious violations of international humanitarian law committed by

Rwandan citizens. The temporal jurisdiction of the International

Tribunal for Rwanda shall extend to a period beginning on 1 January 1994

and ending on 31 December 1994.

Article 8

Concurrent jurisdiction

1. The International Tribunal for Rwanda and national courts shall have

concurrent jurisdiction to prosecute persons for serious violations of

international humanitarian law committed in the territory of Rwanda and

Rwandan citizens for such violations committed in the territory of

neighbouring States, between 1 January 1994 and 31 December 1994.

2. The International Tribunal for Rwanda shall have primacy over the

national courts of all States. At any stage of the procedure, the

International Tribunal for Rwanda may formally request national courts

to defer to its competence in accordance with the present Statute and

the Rules of Procedure and Evidence of the International Tribunal for

Rwanda.

Article 9

Non bis in idem

1. No person shall be tried before a national court for acts

constituting serious violations of international humanitarian law under

the present Statute, for which he or she has already been tried by the

International Tribunal for Rwanda.

2. A person who has been tried by a national court for acts

constitutingserious violations of international humanitarian law may be

subsequently tried by the International Tribunal for Rwanda only if:

(a) The act for which he or she was tried was characterized as an

ordinary crime; or

(b) The national court proceedings were not impartial or

independent,were designed to shield the accused from international

criminal responsibility,or the case was not diligently prosecuted.

3. In considering the penalty to be imposed on a person convicted of a

crime under the present Statute, the International Tribunal for Rwanda

shall take into account the extent to which any penalty imposed by a

national court on the same person for the same act has already been

served.

Article 10

Organization of the International Tribunal for Rwanda

The International Tribunal for Rwanda shall consist of the following

organs:

(a) The Chambers, comprising two Trial Chambers and an Appeals

Chamber;

(b) The Prosecutor; and

(c) A Registry.

Article 11

Composition of the Chambers

The Chambers shall be composed of eleven independent judges, no two of

whom may be nationals of the same State, who shall serve as follows:

(a) Three judges shall serve in each of the Trial Chambers;

(b) Five judges shall serve in the Appeals Chamber.

Article 12

Qualification and election of judges

1. The judges shall be persons of high moral character, impartiality and

integrity who possess the qualifications required in their respective

countries for appointment to the highest judicial offices. In the

overall composition of the Chambers due account shall be taken of the

experience of the judges in criminal law, international law, including

international humanitarian law and human rights law.

2. The members of the Appeals Chamber of the International Tribunal for

the Prosecution of Persons Responsible for Serious Violations of

International Law Committed in the Territory of the Former Yugoslavia

since 1991 (hereinafter referred to as "the International Tribunal for

the Former Yugoslavia") shall also serve as the members of the Appeals

Chamber of the International Tribunal for Rwanda.

3. The judges of the Trial Chambers of the International Tribunal for

Rwanda shall be elected by the General Assembly from a list submitted by

the Security Council, in the following manner:

(a) The Secretary-General shall invite nominations for judges of the

Trial Chambers from States Members of the United Nations and

non-member States maintaining permanent observer missions at

United Nations Headquarters;

(b) Within thirty days of the date of the invitation of the

Secretary-General, each State may nominate up to two candidates

meeting the qualifications set out in paragraph 1 above, no two of

whom shall be of the same nationality and neither of whom shall be

of the same nationality as any judge on the Appeals Chamber;

(c) The Secretary-General shall forward the nominations received to

the Security Council. From the nominations received the Security

Council shall establish a list of not less than twelve and not

more that eighteen candidates, taking due account of adequate

representation on the International Tribunal for Rwanda of the

principal legal systems of the world;

(d) The President of the Security Council shall transmit the list of

candidates to the President of the General Assembly. From that

list the General Assembly shall elect the six judges of the Trial

Chambers. The candidates who receive an absolute majority of the

votes of the States Members of the United Nations and of the

non-Member States maintaining permanent observer missions at

United Nations Headquarters, shall be declared elected. Should two

candidates of the same nationality obtain the required majority

vote, the one who received the higher number of votes shall be

considered elected.

4. In the event of a vacancy in the Trial Chambers, after consultation

with the Presidents of the Security Council and of the General Assembly,

the Secretary-General shall appoint a person meeting the qualifications

of paragraph 1 above, for the remainder of the term of office concerned.

5. The judges of the Trial Chambers shall be elected for a term of four

years. The terms and conditions of service shall be those of the judges

of the International Tribunal for the Former Yugoslavia. They shall be

eligible for re-election.

Article 13

Officers and members of the Chambers

1. The judges of the International Tribunal for Rwanda shall elect a

President.

2. After consultation with the judges of the International Tribunal for

Rwanda, the President shall assign the judges to the Trial Chambers. A

judge shall serve only in the Chamber to which he or she was assigned.

3. The judges of each Trial Chamber shall elect a Presiding Judge, who

shall conduct all of the proceedings of that Trial Chamber as a whole.

Article 14

Rules of procedure and evidence

The judges of the International Tribunal for Rwanda shall adopt, for the

purpose of proceedings before the International Tribunal for Rwanda, the

rules of procedure and evidence for the conduct of the pre-trial phase

of the proceedings, trials and appeals, the admission of evidence, the

protection of victims and witnesses and other appropriate matters of the

International Tribunal for the Former Yugoslavia with such changes as

they deem necessary.

Article 15

The Prosecutor

1. The Prosecutor shall be responsible for the investigation and

prosecution of persons responsible for serious violations of

international humanitarian law committed in the territory of Rwanda and

Rwandan citizens responsible for such violations committed in the

territory of neighbouring States, between 1 January 1994 and 31 December

1994.

2. The Prosecutor shall act independently as a separate organ of the

International Tribunal for Rwanda. He or she shall not seek or receive

instructions from any Government or from any other source.

3. The Prosecutor of the International Tribunal for the Former

Yugoslavia shall also serve as the Prosecutor of the International

Tribunal for Rwanda. He or she shall have additional staff, including an

additional Deputy Prosecutor, to assist with the prosecutions before the

International Tribunal for Rwanda. Such staff shall be appointed by the

Secretary-General on the recommendation of the Prosecutor.

Article 16

The Registry

1. The Registry shall be responsible for the administration and

servicing of the International Tribunal for Rwanda.

2. The Registry shall consist of a Registrar and such other staff as may

be required.

3. The Registrar shall be appointed by the Secretary-General after

consultation with the President of the International Tribunal for

Rwanda. He or she shall serve for a four-year term and be eligible for

reappointment. The terms and conditions of service of the Registrar

shall be those of an Assistant Secretary-General of the United Nations.

4. The staff of the Registry shall be appointed by the

Secretary-Generalon the recommendation of the Registrar.

Article 17

Investigation and preparation of indictment

1. The Prosecutor shall initiate investigations ex-officio or on the

basis of information obtained from any source, particularly from

Governments, United Nations organs, intergovernmental and

non-governmental organizations. The Prosecutor shall assess the

information received or obtained and decide whether there is sufficient

basis to proceed.

2. The Prosecutor shall have the power to question suspects, victims and

witnesses, to collect evidence and to conduct on-site investigations. In

carrying out these tasks, the Prosecutor may, as appropriate, seek the

assistance of the State authorities concerned.

3. If questioned, the suspect shall be entitled to be assisted by

counsel of his or her own choice, including the right to have legal

assistance assigned to the suspect without payment by him or her in any

such case if he or she does not have sufficient means to pay for it, as

well as to necessary translation into and from a language he or she

speaks and understands.

4. Upon a determination that a prima facie case exists, the Prosecutor

shall prepare an indictment containing a concise statement of the facts

and the crime or crimes with which the accused is charged under the

Statute. The indictment shall be transmitted to a judge of the Trial

Chamber.

Article 18

Review of the indictment

1. The judge of the Trial Chamber to whom the indictment has been

transmitted shall review it. If satisfied that a prima facie case has

been established by the Prosecutor, he or she shall confirm the

indictment. If not so satisfied, the indictment shall be dismissed.

2. Upon confirmation of an indictment, the judge may, at the request of

the Prosecutor, issue such orders and warrants for the arrest,

detention, surrender or transfer of persons, and any other orders as may

be required for the conduct of the trial.

Article 19

Commencement and conduct of trial proceedings

1. The Trial Chambers shall ensure that a trial is fair and expeditious

and that proceedings are conducted in accordance with the rules of

procedure and evidence, with full respect for the rights of the accused

and due regard for the protection of victims and witnesses.

2. A person against whom an indictment has been confirmed shall,

pursuant to an order or an arrest warrant of the International Tribunal

for Rwanda, be taken into custody, immediately informed of the charges

against him or her and transferred to the International Tribunal for

Rwanda.

3. The Trial Chamber shall read the indictment, satisfy itself that the

rights of the accused are respected, confirm that the accused

understands the indictment, and instruct the accused to enter a plea.

The Trial Chamber shall then set the date for trial.

4. The hearings shall be public unless the Trial Chamber decides to

close the proceedings in accordance with its rules of procedure and

evidence.

Article 20

Rights of the accused

1. All persons shall be equal before the International Tribunal for

Rwanda.

2. In the determination of charges against him or her, the accused shall

be entitled to a fair and public hearing, subject to article 21 of the

Statute.

3. The accused shall be presumed innocent until proved guilty according

to the provisions of the present Statute.

4. In the determination of any charge against the accused pursuant to

the present Statute, the accused shall be entitled to the following

minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he or

she understands of the nature and cause of the charge against him

or her;

(b) To have adequate time and facilities for the preparation of his or

her defence and to communicate with counsel of his or her own

choosing;

(c) To be tried without undue delay;

(d) To be tried in his or her presence, and to defend himself or

herself in person or through legal assistance of his or her own

choosing; to be informed, if he or she does not have legal

assistance, of this right; and to have legal assistance assigned

to him or her, in any case where the interests of justice so

require, and without payment by him or her in any such case if he

or she does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him or her and

to obtain the attendance and examination of witnesses on his or

her behalf under the same conditions as witnesses against him or

her;

(f) To have the free assistance of an interpreter if he or she cannot

understand or speak the language used in the International

Tribunal for Rwanda;

(g) Not to be compelled to testify against himself or herself or to

confess guilt.

Article 21

Protection of victims and witnesses

The International Tribunal for Rwanda shall provide in its rules of

procedure and evidence for the protection of victims and witnesses. Such

protection measures shall include, but shall not be limited to, the

conduct of in camera proceedings and the protection of the victim's

identity.

Article 22

Judgement

1. The Trial Chambers shall pronounce judgements and impose sentences

and penalties on persons convicted of serious violations of

international humanitarian law.

2. The judgement shall be rendered by a majority of the judges of the

Trial Chamber, and shall be delivered by the Trial Chamber in public. It

shall be accompanied by a reasoned opinion in writing, to which separate

or dissenting opinions may be appended.

Article 23

Penalties

1. The penalty imposed by the Trial Chamber shall be limited to

imprisonment. In determining the terms of imprisonment, the Trial

Chambers shall have recourse to the general practice regarding prison

sentences in the courts of Rwanda.

2. In imposing the sentences, the Trial Chambers should take into

account such factors as the gravity of the offence and the individual

circumstances of the convicted person.

3. In addition to imprisonment, the Trial Chambers may order the return

of any property and proceeds acquired by criminal conduct, including by

means of duress, to their rightful owners.

Article 24

Appellate proceedings

1. The Appeals Chamber shall hear appeals from persons convicted by the

Trial Chambers or from the Prosecutor on the following grounds:

(a) An error on a question of law invalidating the decision; or

(b) An error of fact which has occasioned a miscarriage of justice.

2. The Appeals Chamber may affirm, reverse or revise the decisions taken

by the Trial Chambers.

Article 25

Review proceedings

Where a new fact has been discovered which was not known at the time of

the proceedings before the Trial Chambers or the Appeals Chamber and

which could have been a decisive factor in reaching the decision, the

convicted person or the Prosecutor may submit to the International

Tribunal for Rwanda an application for review of the judgement.

Article 26

Enforcement of sentences

Imprisonment shall be served in Rwanda or any of the States on a list of

States which have indicated to the Security Council their willingness to

accept convicted persons, as designated by the International Tribunal

for Rwanda. Such imprisonment shall be in accordance with the applicable

law of the State concerned, subject to the supervision of the

International Tribunal for Rwanda.

Article 27

Pardon or commutation of sentences

If, pursuant to the applicable law of the State in which the convicted

person is imprisoned, he or she is eligible for pardon or commutation of

sentence, the State concerned shall notify the International Tribunal

for Rwanda accordingly. There shall only be pardon or commutation of

sentence if the President of the International Tribunal for Rwanda, in

consultation with the judges, so decides on the basis of the interests

of justice and the general principles of law.

Article 28

Cooperation and judicial assistance

1. States shall cooperate with the International Tribunal for Rwanda in

the investigation and prosecution of persons accused of committing

serious violations of international humanitarian law.

2. States shall comply without undue delay with any request for

assistance or an order issued by a Trial Chamber, including, but not

limited to:

(a) The identification and location of persons;

(b) The taking of testimony and the production of evidence;

(c) The service of documents;

(d) The arrest or detention of persons;

(e) The surrender or the transfer of the accused to the

InternationalTribunal for Rwanda.

Article 29

The status, privileges and immunities of the International Tribunal

for Rwanda

1. The Convention on the Privileges and Immunities of the United Nations

of 13 February 1946 shall apply to the International Tribunal for

Rwanda, the judges, the Prosecutor and his or her staff, and the

Registrar and his or her staff.

2. The judges, the Prosecutor and the Registrar shall enjoy the

privileges and immunities, exemptions and facilities accorded to

diplomatic envoys, in accordance with international law.

3. The staff of the Prosecutor and of the Registrar shall enjoy the

privileges and immunities accorded to officials of the United Nations

under articles V and VII of the Convention referred to in paragraph 1 of

this article.

4. Other persons, including the accused, required at the seat or meeting

place of the International Tribunal for Rwanda shall be accorded such

treatment as is necessary for the proper functioning of the

International Tribunal for Rwanda.

Article 30

Expenses of the International Tribunal for Rwanda

The expenses of the International Tribunal for Rwanda shall be expenses

of the Organization in accordance with Article 17 of the Charter of the

United Nations.

Article 31

Working languages

The working languages of the International Tribunal shall be English and

French.

Article 32

Annual report

The President of the International Tribunal for Rwanda shall submit an

annual report of the International Tribunal for Rwanda to the Security

Council and to the General Assembly.

".

Title, page 1, omit "Tribunal perform its", substitute "Tribunals

perform their".

Debate resumed.

Question--That the further amendments be agreed to--put and passed.

INTERNATIONAL WAR CRIMES TRIBUNAL (CONSEQUENTIAL AMENDMENTS)BILL 1994

[1995]--

SCHEDULE OF THE AMENDMENT MADE BY

THE HOUSE OF REPRESENTATIVES

Schedule, page 3, amendment of the Administrative Decisions (Judicial

Review) Act 1977, omit the amendment.

The Minister for Primary Industries and Energy (Senator Collins)

moved--That the committee agrees to the amendment made by the House of

Representatives in the bill.

Question put and passed.

On the motion of Senator Collins the following further amendments were

agreed to:

Clause 1, page 1, line 3, omit "Tribunal", substitute "Tribunals".

Schedule, pages 3 to 5, omit "Tribunal" (wherever occurring), substitute

"Tribunals".

Title, page 1, omit "Tribunal ", substitute "Tribunals ".

Resolutions to be reported.

The Acting Deputy President (Senator Colston) resumed the Chair and the

Chairman of Committees (Senator Crichton-Browne) reported that the

committee had considered message no. 350 from the House of

Representatives, relating to the International War Crimes Tribunal Bill

1994 [1995], had agreed to amendments 1-23 and 25-27 made by the House

of Representatives, had disagreed to amendment no. 24 and made an

amendment in place thereof, had made further amendments to the bill and

had made an amendment to the title of the bill; and had also considered

message no. 351 from the House of Representatives, relating to the

International War Crimes Tribunal (Consequential Amendments) Bill 1994

[1995], had agreed to the amendment made by the House of

Representatives, had made further amendments to the bill, and had made

an amendment to the title of the bill.

On the motion of Senator Collins the report from the committee was

adopted.