On the eve of a long-anticipated ruling in the Bagosora "Military I" genocide trial, JURIST Special Guest Columnist Roland Amoussouga, Spokesperson and Senior Legal Adviser at the International Criminal Tribunal for Rwanda (ICTR), reviews the Tribunal's challenges and achievements as it moves towards completion of its mandate…

Two judgements are scheduled for this week at the International Criminal Tribunal for Rwanda (ICTR). One them is the famous ‘Military I’ Trial, jointly trying Col. Theoneste Bagosora, former Director de Cabinet in the Ministry of Defence, Lt- Col Anatole Nsengiyumva, former Commander of the FAR in Gisenyi prefecture, Major Aloys Ntabakuze, former Commander of the elite Para-Commando Battalion in FAR, and Brigedier-General Gratien Kabiligi, former Chief of Military Operations in FAR. The trial began on 2 April 2002. The other judgement is in the case of Protais Zigiranyirazo, who was brother-in-law of former President Habyarimana and a powerful businessman as well as an alleged member of the powerful ‘Akazu’ group. His trial opened on 3 October 2005.

The ICTR Judicial Calendar for 2009 is indicative and represents the work plan which it aims to follow. The Tribunal has already established a judicially verified record of the crime of genocide and its causes which can support the reconciliation and peace process. Attention will now be given to limiting the scope of the trials to what is relevant to the crimes in the indictments.

The Tribunal is also in the process of establishing improved pre-trial management mechanisms to further shorten the delays to the extent this is compatible with the requirements of a fair trial. No dates are fixed for delivery of judgements, as the length of the judgement drafting process is difficult to predict in particular in the complex multi-accused trials. However, the Tribunal is developing additional mechanisms for shortening delays in this phase of the trial.

The ICTR is in the process of submitting additional documents on the work load of judges and on their planned date of resignation, which clearly stress an urgent need for additional (four) ad litem judges to be appointed by the Secretary-General. Those judges are essential to cover the up to ten new cases which will be before the Tribunal in 2009, as seven of the current permanent and ad litem judges will have resigned or are not available to take on new cases.

Summary of Sentences Imposed as of 2 December 2008

The ICTR's convicts have been sentenced to prison for terms ranging from a minimum of 9 months (for a witness who gave a false testimony) and from 6 years to life imprisonment for grave violations of international humanitarian law. Thirteen convicts have been sentenced to life imprisonment (1 was reduced to 35 years for violation of the convict’s rights and another was reduced to 45 years on appeal).

Transfer of Prisoners

Acting on decisions rendered on 3 November 2008 and 5 December 2008 on the enforcement of sentences by the President of the ICTR, in accordance with Article 26 of the Statute and Rule 103 (A) of the Rules of Procedure and Evidence, the ICTR has recently transferred on Wednesday 3 December 2008 and Sunday 7 December 2008 to the Republic of Mali, nine (9) convicted persons namely, Mr. Laurent Semanza, Mr. Jean de Dieu Kamuhanda, Mr. Samuel Imanishimwe, Mr. Mikaeli (MIKA) Muhimana, Mr. Hassan Ngeze, Mr. Ferdinand Nahimana, Mr. Sylvestre Gacumbitsi, Mr. Paul Bisengimana and Mr. Eliezer Niyitegeka. At present, 15 ICTR convicted persons are serving their sentences in Mali. Additional convicted persons are expected to also be soon transferred to the designated State (s) of the enforcement of their sentences. They are currently nine more convicted persons awaiting transfer.

Relocating Acquitted and Released Prisoners

The ICTR’s experience over the last fourteen years has shown that international criminal justice dispensation can only be successful if there is political will and a clear demonstration of cooperation from member States in addressing challenges. From its inception until today, the ICTR still encounters several obstacles in the relocation of acquitted persons and released prisoners. Indeed, those challenges are made critical by the absence of any specific provisions in the ICTR Statute that could have directly placed an express obligation on the shoulders of member States to assist the Tribunal in the relocation of the protected acquitted persons and the released prisoners.

The situation of acquitted persons before the Tribunal is one of the most critical challenges that ought to be absolutely addressed. It is worth noting that since its inception up to date, five persons have been acquitted by the ICTR:

a) Mr. Ignace Bagilishema, acquitted by the Trial Chamber on 7 June 2001 and his acquittal was confirmed by the Appeals Chamber on 3 July 2002;
b) Mr. Emmanuel Bagambiki, acquitted by the Trial Chamber on 25 February 2004 and his acquittal was confirmed by the Appeals Chamber on 8 February 2006;
c) Mr. André Ntagerura, acquitted by the Trial Chamber on 25 February 2004 and his acquittal was confirmed by the Appeals Chamber on 8 February 2006;
d) Mr. Jean Mpambara, acquitted on 12 September 2006; No appeal was lodged; and
e) Mr. André Rwamakuba acquitted on 20 September 2006 and no appeal was filed.

The ICTR Registrar held extensive bilateral negotiations with the French authorities with the support of their Defence counsel, which have enabled both Mr. Bagilishema and Mr. Mpambara to be relocated to France where they were reunited with their respective families. After a protracted process involving bilateral negotiations and court proceedings initiated by the Counsel for Mr. Bagambiki in Belgium, Mr. Rwamakuba and Mr. Bagambiki have finally been relocated to Switzerland and Belgium respectively, where they also joined their families.

Despite some lengthy and arduous bilateral negotiations with some member States and the UNHCR, the Registrar has not yet been able to find a country for Mr. Ntagerura. As a result, Mr. Ntagerura is still under the care of the ICTR. The situation of Mr. Ntagerura is a vivid illustration of the complexity of the challenges that are facing the Registry in complying with the directions given by the ICTR Judges.

On 26 February 2004, Trial Chamber III of the ICTR ordered the immediate release of Mr. André Ntagerura following his acquittal on 25 February 2004. Paragraph IV of the pronouncement of the Trial Chamber’s decision reads, inter alia, as follows:

DIRECTS the Registrar to release immediately André Ntagerura ….when satisfied that …, the necessary practical arrangements have been made including required consultations with the relevant national and international authorities as well as any other organization deemed relevant for such practical arrangements to be made, in the interim, the Registrar is requested to ensure that André…[is] place in a safe house’.

The Trial Chamber further subjected the immediate release of Mr. André Ntagerura to the fulfillment of other conditions including the provision of an address where he will reside. The Defence Counsel of Mr. Ntagerura, on his own, actively endeavored to find a place for his client and moved to request the Registrar, in view of the precariousness of the security situation of his client, that an asylum be gra
nted to him in Tanzania pending his transfer to the country in which he will choose to reside.

Finally, the ICTR Registry managed to get the support and cooperation of the Tanzanian Government which agreed in May 2004 to grant temporary asylum in the country to Mr. Ntagerura pending his relocation to a third country. The Government asked to be kept informed of any subsequent developments with regard to any re-settlement formalities as soon as they are completed. It is therefore under those special conditions that Mr. Ntagerura has been living temporarily in Tanzania under the care of the ICTR. Mr. Ntagerura proceeded to petition the Tribunal to compel Canada to receive him. The Appeal Chamber recently disposed of the matter on 18 November 2008, and requested the Registrar to seize the UNHCR in order to seek its cooperation.

The case of Ntagerura clearly illustrates the challenges facing the ICTR as well as any accused person who is acquitted of any violations of international humanitarian law for which the ICTR is competent. These challenges are critical in the event that the acquitted person does not wish to return to Rwanda or to the country of his arrest. Neither the ICTR Statute nor its Rules of Procedure and Evidence deal with such situations, except to place a heavy burden on the shoulders of the Registry, which bears the responsibility for the safety and security of accused persons and acquitted persons while they are before the Tribunal, under its custody, or protective care. It is gainsaying that, at this point in time, the ICTR acquitted persons are not immune from being subjected to the application of the ”exclusion clauses” by the UNHCR, which requires careful and assiduous examination. This situation gives rise to legitimate questions as to the actual consideration and legal weight that are given to ICTR acquittal decisions by all external stakeholders including member States and UN Agencies. The lack of political willingness and the absence of positive obligations on the member States in the ICTR statutory provisions render the challenges quite daunting.

In order to enforce the sentences handed down by the ICTR, the United Nations, up to date, has concluded seven separate Agreements with the following States:

a) The Republic of Mali on 12 February 1999;
b) The Republic of Benin on 18 August 1999;
c) The Kingdom of Swaziland on 30 August 2000;
d) The Republic of France on 14 March 2003;
e) The Republic of Italy on 17 March 2004;
f) The Republic of Sweden on 27 April 2004; and
g) The Republic of Rwanda on 4 March 2008.

Termination of enforcement of the ICTR as per those Agreements should occur in the following circumstances:

a) When the sentence has been completed;
b) Upon pardon of the convicted person or upon completion of the sentence as commuted in accordance with the provision of those Agreements;
c) Following a decision of the Tribunal, as provided for in the provision of the Agreements;
d) Upon the demise of the convicted person.

The Tribunal also may, at any time, decide to request the termination of the enforcement of the sentence in a given State and transfer the convicted person to another State or to the Tribunal for the remaining of the sentence.

So far, two ICTR prisoners have been released in Arusha after having served heir sentences at the United Nations Detention Facility. They were not transferred to other states for the enforcement of their sentences. They are as follows:

– Elizephan Ntakirutimana, (sentenced to 10 years of imprisonment); and
– Mr. Vincent Rutaganira (sentenced to 6 years of imprisonment).

Three more prisoners are expected to be released in December 2008, July and August 2009. One of them has already been transferred to Italy where he is serving his sentence while the other two are still in Arusha awaiting their transfer to the States of enforcement of their sentences.

For the prisoner who is in Italy, it is expected that his/her relocation after release will not be an issue for the ICTR. However, the experience so far gathered by the ICTR, has shown that upon release of the first prisoners in Arusha, they both requested the ICTR to assist them to relocate to third countries.

Until now, the ICTR has yet to be successful in negotiating with member States for their relocation to third countries. It is worth mentioning that the member States that have been approached by the ICTR responded negatively to its request. The ICTR has, however, provided accommodation to the released prisoners pending their relocation.

In accordance with the Agreements concluded with the various States, unless the parties agree otherwise, the Tribunal is to bear the expenses related to the repatriation or return of the convicted person upon completion of his/her sentence to Rwanda or another country where he/she is lawfully resident. The current policy of the ICTR does impose an obligation on the Registry to find a State for a released prisoner, who is free of his movement. The Registry may only assist financially and administratively the released prisoner in getting travel documents and securing fund for his transportation to the relocation State of his own choosing, if and when necessary.

There is an expectation that the individual member States of the United Nations will enforce orders and judgements of the ICTR. Thus, under the Host Country Agreement that ICTR has concluded with the Government of the United Republic of Tanzania, it is expressly provided that on conviction the person shall be sent out of Tanzania as soon as practicable.

Article 26 of the ICTR Statute provides as follows:

Imprisonment shall be served in Rwanda or any of the States on a list of States which have indicated to the Security Council of their willingness to accept convicted persons, as designated by the International Criminal 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.

The important point to be noted in this Article is that the imprisonment is served in accordance with the applicable law of the State concerned. This means that the nature of imprisonment for persons convicted of the same offence and sentenced to imprisonment for the same period will vary in accordance with the laws of imprisonment of the State where such imprisonment will be served.

The second point to observe is that the overall supervision of the convicted person serving sentence will remain with the Tribunal or a body designated by it or by the Security Council (after the closure of the ICTR). At present, one acquitted person is still under the care and protection of the Tribunal in Tanzania for an unforeseeable future while awaiting transfer to a state willing to receive it. The ICTR continues its best efforts to find suitable countries for the relocation of protected witnesses and released prisoners.

The current situation and the similar foreseeable situation of future acquitted persons and released prisoners who have or would have completed their sentences are important challenges that must be urgently addressed as the Tribunal moves forward to the closure of its operations.

The ICTR: Key Achievements

Whatever system is employed to measure the success of the venture, there can be no doubt that peace has been restored and maintained in Rwanda, that there is a credible and ongoing process of national reconciliation, that many of the violations have been addressed and that some have been effectively redressed. Of course work remains to be done, and circumstances have given the Tribunal new tasks. But there can be no doubt that the Tribunal has been a central and stabilising instrument that has made major and lasting contributions to the establishment of international justice, peace and reconciliation that currently prevai
l in the region.

Among the most basic and most important of the Tribunal’s achievements has been the accumulation of an indisputable historical record, including testimony of witnesses, testimony of victims, testimony of accused, documentary evidence, video recordings and audio recordings.

This record was invaluable to the Appeals Chamber when it discredited and rejected the theory that genocide and widespread or systematic attacks against civil population had not actually occurred in Rwanda in 1994. In a nutshell, the Tribunal has established an important judicially verified factual record of these atrocities. The importance and value of that record and the archival collections of the Tribunal to national, regional and international history should not be underestimated. They have and will continue to contribute to the peace and reconciliation process in Rwanda and in Great Lakes region and offer a guide for addressing similar violations of international humanitarian law in other areas of the world.

The Tribunal, and its twin sister ICTY, have been the modern pioneers of a credible international criminal justice system. They have contributed greatly to the development of substantive international criminal law and procedure. The 14 years of our activity have produced a substantial body of jurisprudence, including the definitions of the elements of the crime of genocide, crimes against humanity, war crimes, as well as forms of responsibility, such as superior responsibility. Other international tribunals and courts will have a well established foundation on which to build. The work of the Tribunal has transformed the resolutions, treaties and conventions emanating from the United Nations, into practical and effective tools to be used by the international criminal justice system in its efforts to end to mass atrocities,

The Tribunal had also fostered national compliance with international obligations in the human rights sphere. For example, Rwanda has already abolished death penalty in order to facilitate the transfer of cases to its jurisdiction. The Trial Chamber’s decision not to transfer the Munyakazi case to Rwanda was recently upheld by the Appeals Chamber. The reasons given in the appellate judgment could lead to even further reforms, including a clarification of the applicable punishment for those transferred to Rwanda, the exclusion of life imprisonment in solitary confinement and strengthening the witness protection program. The referral proceedings have also put the spotlight on other countries that need to adopt domestic legislation implementing the human rights treaties and conventions to which they are parties. The Tribunal’s influence, therefore, extends well beyond the Great Lakes region, spreading what are arguably the highest ideals of this body—its international standards of human rights—transforming them from noble aspirations into enforceable legislation and impartial judicial processes.

It is equally worth noting that in spite of all the challenges the Tribunal went through; it has however managed to apprehend 79 persons out of 92 persons who were indicted by its Prosecutor. 15 former Ministers (including the former Prime Minister) of the 19 member-Rwandan Interim Government during the period of the genocide have been arrested. The ICTR notably gained custody of numerous top political and military, religious, business, youth, militia and civil society leaders. These include the former foreign and defence ministers, the former Chief of Staff of the Rwandan Army and Mr. Jean Kambanda, the former Prime Minister, who became the first former head of government to be convicted for Genocide and crimes against humanity. The success of the ICTR in gaining custody of most of the indicted persons of these calibres, including those in highest positions of responsibility throughout the national administrative provinces, goes well beyond the level of failure expected by Tribunal’s sceptics.

The impressive ICTR case law includes, inter alia, the following:

Through its first judgment rendered on 2 September 1998 in the case of Prosecutor v. Jean-Paul Akayesu (Case No. ICTR-96-4-T), the ICTR became the first International Tribunal to interpret the definition of genocide set forth in the 1948 Geneva Conventions. The Akayesu jurisprudence is a particularly important source for both the definition and application of the legal ingredients for the criminal offence of genocide. This case also set out very important legal doctrines and tests for assessing components of genocide crimes. The Akayesu judgment was also groundbreaking for its finding that rape may comprise an act of genocide. Since that decision, the Tribunal has convicted at least three other accused of rape.

The ICTR was also the first International Tribunal since the International Military Tribunal in Nuremberg (1946) to hand down a judgment against a head of government. The Former Prime Minister of Rwanda, Jean Kambanda, was convicted for genocide and sentenced to life in prison, thus reaffirming the principle that no individual enjoys impunity for such crimes on account of their official position. The case, Prosecutor v. Kambanda, was decided by Trial Chamber I, on 4 September 1998. The Kambanda case was also the first judgment where a head of government pleaded guilty to genocide.

In the “Media Case”, the Tribunal set the principle that those who use the media for inciting the public to commit genocide can be punished for their communication which amounts to hate speech and persecution as a crime against humanity. This is the first contemporary judgment to examine the role of the media in the context of inciting the public to commit crimes. This important case addresses the boundary between the rights guaranteed under international law to freedom of expression and incitement to genocide. The Media Case also set legal precedence for determining conspiracy to commit genocide. The Tribunal established that through personal collaboration as well as interaction among institutions within their control, the convicts were guilty of conspiracy to commit genocide.

The ICTR Appeals Chamber on 16 June 2006 issued a decision that the Trial Chambers must take judicial notice that between 6 April 1994 and 17 July 1994 there was genocide in Rwanda against the Tutsi ethnic group. The decision was delivered by the Appeals Chamber on the Prosecutor's Appeal on Judicial Notice in the trial of Prosecutor v. Karemera, Ngirumpatse and Nzirorera, ICTR-98-44-AR73 (C). Judicial notice of the genocide means that the fact of the 1994 genocide in Rwanda is to be taken as established beyond any dispute and do not require any further proof. The Prosecutor no longer has to provide evidence and prove the occurrence of the genocide in each case. Prosecutions can now focus on the personal involvement of the accused persons in the genocide.

One of the ICTR's major judicial achievements is also found in the body of its case law, which has endorsed the application of the doctrine of command responsibility to the civilian leadership. Through the application of this doctrine, military commanders and civilian leaders are equally held personally responsible for human rights violations and other international crimes committed by their subordinates, if as superiors they knew, or should have known about commission of those violations and did not prevent them or punish the perpetrators after commission of the crimes.

The ICTR's Legacy

The ICTR and its sister Tribunal the ICTY have made significant progress towards the completion of their work. Their legacies and contributions to the respective societies in which they function, must be preserved. In this perspective, it is clear that the legal foundations of the ad hoc Tribunals, their Statutes and Rules of procedure and evidence, and some of their functions cannot terminate immediately upon the conclusion of all trials and appeals. Both Tribunals have been
working very closely in developing a joint strategic proposal, to address issues relating to residual functions.

This will be soon considered by the Security Council. Failure to ensure that these essential functions are carried out once the Tribunals’ peak activity is winding down may result in violations of the rights of victims, witnesses, accused and convicted persons. It is also important to preserve the long-term legacy of the Tribunals, bearing in mind that these courts contribute to international peace, reconciliation and the development of the rule of law, as well as the credibility of the nascent international criminal justice system.

For the time being some of the essential functions to be considered as far as the residual mechanism is concerned, deal with, review of earlier judgments; referrals of cases to national jurisdictions; supervision of prison sentences, early release, pardon and commutation; contempt or perjury proceedings; prevention of double jeopardy in national courts; witness protection; issues relating to defense counsel and legal aid; claims for compensation; archives; public information, capacity building and outreach; and human resources. It is even possible that the residual mechanism deal with trial of fugitives belatedly arrested.

The United Nations Security Council attaches a lot of importance to the establishment of residual mechanisms for both Tribunals. A Security Council Informal Working Group on the Tribunals (SCIWGT) has already been put in place. Members of the working group, composed of representatives of Belgium, Burkina Faso, China, Croatia, France, Panama, Russian Federation, South Africa, United Kingdom and United States of America visited the Tribunal from the 29 to 30 September 2008.

The SCWIGT held extensive exchanges with the President, the Prosecutor, the Registrar and other Senior Officers on ongoing strategic process on matters related to the completion strategy. They were also briefed on the achievements of the ICTR and its challenges as it nears the end of its mandate. The Delegation expressed its satisfaction On 30 September 2008, the Delegation left for The Hague to hold a similar exercise with the ICTY.

Conclusion

The effectiveness of an ad hoc international Tribunal such as the ICTR will remain seriously challenged until member States show a firm commitment to support the ICTR. This can be achieved through the enhanced cooperation and assistance of all United Nations member States including UN Agencies in those challenging areas.

Although the ICTR can be proud of itself because of its honorable track record, it goes without saying that in order to successfully complete its work within the timeframe that has been prescribed by the Security Council as part of its completion strategy, the ICTR must receive full support in meeting its critical challenges. Failure to support the ICTR in that respect might seriously hamper the foundation of its effort to ensure a lasting contribution to national reconciliation in Rwanda, restoration and maintenance of peace and security in Rwanda, the Great Lakes Region and to the development of a very effective international criminal justice system.

The ICTR legacy in those key areas must be enhanced and supported by a residual mechanism that shall guarantee the availability of willing countries, which would accept the relocation of protected witnesses, acquitted persons and released persons after the closure of the ICTR. The Tribunal has also continued to deploy vigorous and commendable diplomatic efforts in the relocation of acquitted persons. As a result, and thanks to the cooperation of Member States, one acquitted person has been relocated. Now only one acquitted person awaits relocation, and efforts are ongoing to find a suitable resolution.

Establishing peace, justice, security and reconciliation in the region remains a central activity of the Tribunal. As a key component of its mandate, the Tribunal provides support in Rwanda to the judiciary, to civil society and to academic institutions through its comprehensive capacity building and outreach programmes. The Registry in particular has continued to promote the Tribunal’s work by carrying out a diverse range of public relations activities including training sessions and the production of documentaries and other publications, notably in Rwanda and Great Lakes Region.

The Tribunal is working assiduously in compliance with the completion strategy. The task has been daunting. Yet, the ICTR has tackled the challenge with confidence and determination. However, there have been developments which added to the workload on which the time estimates were initially based. Because of the recent arrest of the three fugitives who have to be tried at the Tribunal, the ICTR is now planning trials for which provision had not previously been made. It is important to seize this opportunity to call again on Member States to take more active steps in apprehending the remaining fugitives because the value of our achievements will be diminished unless all these arrests are secured.

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