JURIST Guest Columnist Roland Amoussouga, Spokesperson and Senior Legal Adviser at the International Criminal Tribunal for Rwanda (ICTR), says that the recent United Nations agreement with Rwanda over the detention in Rwanda of convicted ICTR prisoners is simply an agreement with the country's lawful government on any sentences that may be served in Rwanda, and does not, as contended by ICTR defense counsel Peter Erlinder in a previous JURIST Forum op-ed, constitute an agreement by the United Nations to hand over UN prisoners to indicted war criminals…

As Spokesperson of the United Nations International Criminal Tribunal for Rwanda, to whom your guest columnist Peter Erlinder of William Mitchell College of Law, Lead Counsel in the Military 1 Trial at the ICTR, refers to in his recent JURIST op-ed entitled Different Justice at the UN Rwanda War Crimes Court, as having officially designated President Kagame’s Rwanda as one of the UN member states to which UN prisoners might be sent, I wish to exercise my right to respond to some of the factual inaccuracies contained in Professor Erlinder's commentary

Prof. Erlinder informed your readers that last week the United Nations agreed to hand over UN prisoners to indicted war criminals. The United Nations did no such thing. What the United Nations did is sign an agreement with the lawful government of Rwanda that will govern any sentences that may be served in Rwanda. As a result of his Commentary, your readers may not be so well informed. Furthermore, allowing falsehoods to be propagated about ICTR without immediate vigorous response would certainly harm the historical accuracy of information that ought to be disseminated in academia and throughout the world.

As far as the signing of the agreement between the United Nations and the Government of Rwanda for the enforcement of the ICTR sentences is concerned, I would like to state the following:

• The negotiation process which led to the signing of the said Agreement was initiated more than three years ago;
• The final text of the Agreement was duly cleared by the UN Secretariat in accordance with the statutory provisions of the ICTR;
• It may appear paradoxical that finalizing the said Agreement took much longer than for the other six countries (Mali, Benin, Swaziland, France, Sweden and Italy) that have signed similar Agreements with the United Nations. More so when one reads Article 26 of the ICTR Statute, it seems to suggest that Rwanda is the primary destination for the execution of sentences of all persons convicted by ICTR;
• The signing of the Agreement marks a milestone in the cooperation between the ICTR and Rwanda. Rwanda has made significant progress in terms of standard of prisons to accommodate ICTR’s convicts. This Agreement appears as the last brick completing the legal framework which designates Rwanda as one of the countries that may be deemed suitable for the enforcement of sentences handed down by ICTR;
• Many people including Rwandans have claimed that Rwanda should be the exclusive destination of ICTR’s convicts, if one wants to give meaning to the maxim according to which “…justice must be seen to be done”;
• The Security Council decided that in respect of the former Yugoslavia, no convict would serve his/her sentence in his/her country of origin. So was it;
• As for Rwanda, the United Nations’ position was very clear. The Council under Article 26 of the ICTR Statute decided that “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”. This of course, does not mean that Rwanda is forbidden to make its case as the priority place of service of sentence for ICTR convicts;
• In any event, it will be up to the judges of ICTR, and particularly the President, based on the merits of each case, to decide where the sentences will be served;
• The parameters to be taken into account when deciding the country for the enforcement of sentences are now known. They are set forth in a directive issued since May 2000 by the then President of ICTR. The satisfaction of the victims is important but it is not the only factor determinative of the choice of the place of service of sentence. The whereabouts of the family of the convict are also a factor, as well as many others, designed to protect competing interests;
• The bottom line is that imprisonment, as a sanction meted out by criminal justice, is not meant to entail any other punishment than the deprivation of the right to move about freely. All other rights of the convict should be left untouched, insofar as they are compatible with the regime of detention. The United Nations Organization is bound to uphold this understanding.

The Agreement in question is similar to those signed with several other states. Let me tell you what it says. The Agreement governs any request that may be made in the future to the Rwandan government to enforce a sentence. The procedure set out is that the Registrar with the approval of the President [presently Sir Dennis Byron, former Chief Justice of the Eastern Caribbean Supreme Court] has to first make a request to the Government of Rwanda to enforce a sentence. Then the Government of Rwanda has to agree.

If this process occurs — the Agreement says nothing about whether it will — then the Agreement binds Rwanda in a number of ways. The Agreement binds the Rwandan government as to the duration of sentence, the exact place where it is served, the conditions of imprisonment — they must be in accordance with international standards — regular inspection by the Red Cross. The Red Cross reports its findings to the President of the Tribunal. The Tribunal can decide at any time to terminate the service of the sentence in Rwanda and transfer the prisoner to another state or back to the Tribunal.

At the end of the sentence the Agreement provides for the prisoner to be transferred at United Nations expense to a country other than Rwanda where he or she is lawfully resident. Any repudiation of the Agreement by the country is delayed by the Agreement for enough time to allow the prisoner to be transferred to another state or the Tribunal.

With respect to the assertion of Professor Erlinder as regards the fact that (and I quote) ”To date, not one UN-ICTR prisoner has been sent to a European prison and all have ended up in a remote desert prison in Mali for life-or the UN Detention Center connected to the Tribunal for shorter sentences”, it is my submission that such a statement is grossly inaccurate and misleading. The facts of the matter could be summarized as follows:

• Out of the six convicted persons who are currently serving their sentences in Mali since 9 December 2001, 4 of them were sentenced to life imprisonment, one to 25 years of imprisonment and one to 15 years of imprisonment. It is worth noting that the Koulikoro and Bamako Central prisons in Mali are not located in desert areas as Prof Erlinder has unfortunately claimed. Prof. Erlinder’s assertion that ICTR convicts suffer poor conditions in a desert prison in Mali is unsupported by the reports of neutral international observers. The conditions of imprisonment there are subject to inspections by the Red Cross. The United Nations specifically spent a great deal of money bringing the African facilities up to international standards;
• Another convicted person
  has started since 28 February 2008 serving his sentence in the prison of Voghera (Pavia, Italy), which is by the way in Europe.

Moreover, the “indicted war criminals” referred to by Prof. Erlinder is the lawful Government of Rwanda, fully recognized as such by member States of the United Nations including Prof. Erlinder’s own government.

Finally, it is worth recalling that the UN Security Council, in setting up the Tribunal, mandated that sentences would be served in Rwanda or in a State that had indicated to the Security Council willingness to accept convicts. Such imprisonment is expressly made subject to supervision by the Tribunal, a subordinate organ of the Security Council.

Roland Amoussouga is Spokesperson and Senior Legal Adviser for the International Criminal Tribunal for Rwanda in Arusha, Tanzania
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