Prosecuting
Genocide in Rwanda:
A Lawyers Committee report on the
ICTR and National Trials
July 1997
Prosecuting
Genocide in Rwanda:
A Lawyers Committee report on the
ICTR and National Trials
July 1997
A genocide that killed at least 500,000 people was perpetrated in the spring of 1994 in the small central African country of Rwanda. Thousands more were raped, tortured and beaten. The international community failed to stop the crimes. Rwanda was simply too far away and did not rate highly in the "national interest" calculation of any of the states capable of intervening. The UN Security Council failed to reinforce the small and lightly armed UN blue helmets already in Rwanda; they acted bravely but their restricted mandate meant they could do little to stop the killing.
Months after the genocide ended, the UN Security Council created an international criminal tribunal to prosecute those responsible. The UN, building on the recently established International Criminal Tribunal for the former Yugoslavia, decided that the genocide in Rwanda required a similar effort to insure prosecution for the most serious crimes, such as genocide and crimes against humanity. National prosecutions seemed impossible since the Rwandese justice system had been destroyed.
Ever since its creation, the tribunal for Rwanda has received scant attention from international policymakers and the press. More damaging, the tribunal has not received adequate support from the international community and the UN. Located in Arusha, Tanzania, with the prosecutor's office in Kigali, Rwanda, both far from the usual travel itineraries of policymakers and the press, the tribunal's work languished for almost two years. Key staff positions were empty, basic resources were lacking and collaboration with the chief prosecutor's office in the Hague was inadequate. Most states failed to adopt legislation requiring cooperation with tribunal investigators, including the transfer to Arusha of anyone indicted or wanted for questioning by the tribunal.
Meanwhile, Rwanda slowly built its justice system, recruiting and hastily training a new corps of police investigators, prosecutors and judges. Prisons and detention centers overflow with tens of thousands, most suspected of participating in the genocide but in many cases with little or no evidence supporting this charge.
In December 1996 Rwanda began holding trials for those accused of genocide. Weeks later, in January 1997, the tribunal in Arusha started its first genocide trial. By mid-1997, trials were proceeding at both the national and international levels simultaneously for the same crimes committed in 1994.
The purpose of this paper is to describe and analyze this dual approach to prosecuting genocide and crimes against humanity. It explores the relationship between international and national prosecutions and demonstrates that, without support from the international community, neither national nor international prosecutions will succeed. Its aim is to show how developments in the international tribunal's work can have a profound impact on prosecutions in Rwanda. An additional goal is to emphasize how prosecution will affect human rights and the reconciliation process in Rwanda if trials in the national courts are fair and there is a serious effort to ascribe guilt to individuals and not to a particular group.
The International Criminal Tribunal for Rwanda now has more suspects in detention than does the tribunal for the former Yugoslavia. Those in detention in Arusha include some of the most senior figures implicated in the genocide. This is not the case for suspects detained in the Hague, who tend to be low-level figures without command responsibility. Moreover, those still at large who are suspected of planning and ordering the genocide depend on their current hosts to shield them from the tribunal and do not have nearly the political power or protection enjoyed by the main alleged perpetrators of serious war crimes in the former Yugoslavia. Thus the International Criminal Tribunal for Rwanda has a greater possibility of prosecuting senior officials than does the tribunal for the former Yugoslavia. This only underscores the obligation on the United Nations and its member states to insure that the tribunal succeeds.
Three trials are underway in Arusha and several more could start soon. Despite its slow start and well publicized problems, the tribunal for Rwanda has recently made important advances in obtaining custody of persons indicted. With increased support and cooperation from the UN and its member states, additional resources—including skilled investigators and prosecutors—and more information about the tribunal's work disseminated in the press, its chances for success will increase. The Lawyers Committee for Human Rights hopes that this paper will help garner support for the tribunal. We also hope that the analysis of national trials will help the government of Rwanda identify ways to improve the administration of justice and assist donors in shaping their legal reform projects based on the needs identified in this report.
II. ESTABLISHING THE TRIBUNAL: SECURITY COUNCIL RESOLUTION 955
In the wake of the genocide in Rwanda, the UN Security Council established the International Criminal Tribunal for Rwanda (ICTR).(1) The Security Council passed the resolution creating the ICTR on November 8, 1994. Acting under Chapter VII of the UN Charter, and building on its recent precedent in establishing the International Tribunal on War Crimes in the Former Yugoslavia (ICTFY), the Security Council decided that "all states shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution." Thus the full force of Chapter VII underlies the tribunal's authority; compliance with its decisions is mandatory.
The Security Council also recognized some of the unique aspects of the genocide in Rwanda, stressing in the preamble to the resolution 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."(2)
The killing started on April 6, 1994 when the plane carrying the presidents of Rwanda and Burundi was shot down as it neared Kigali airport, and did not end until the Rwandese Patriotic Front (RPF) victory in September.(3) In November 1994, just several months after the end of the civil war which saw the RPF defeat the former government and its army, the Forces Armées, (Armed Forces of Rwanda: FAR), Rwandan prisons were overflowing with people suspected of having participated in the genocide.
The FAR and the Interahamwe ("those who stand together" in Kinyarwanda) and Impuzamugambi ("those who fight together") militias targeted Tutsis and moderate Hutus. Most reliable commentators estimate that anywhere from 500,000 to 1,000,000 people were killed in barely four months, arguably the swiftest genocide in history.(4) Rwanda was anything but a failed state and had a highly organized authoritarian structure down to the level where a government agent was responsible for monitoring the activities of every 10 families. The genocide was planned and implemented with meticulous care. Working from prepared lists, an unknown and unknowable number of people, often armed with machetes, nail-studded clubs or grenades, methodically murdered those named on the lists. Virtually every segment of society participated: doctors, nurses, teachers, priests, nuns, businessmen, government officials of every rank, even children. Identity cards, which noted someone's "ethnic" identity, became death certificates for Tutsis caught at the numerous roadblocks that were erected within 45 minutes after the president's plane was shot down.(5) In addition, Hutu extremists on Radio-Television Libre des Milles Collines (RTMC) had spewed violent, racist propaganda daily for months, urging its listeners to "get to work" and exterminate all the "inyenzi" (cockroaches in Kinyarwanda and a derogatory term used to describe Tutsis). Since approximately 80% of Rwandese are illiterate, the role of radio in inciting hatred and acts of genocide cannot be underestimated.
The genesis of the ICTR followed a pattern established by the UN with regard to the tribunal for the Former Yugoslavia.(6) Following an earlier Security Council resolution, then- Secretary General Boutros Boutros-Ghali named a commission of experts to go to Rwanda to investigate and assess evidence of grave violations of international humanitarian law "including possible acts of genocide."(7) This commission of three African human rights experts found that genocide and violations of international humanitarian law had occurred.(8) In addition, the UN Commission on Human Rights convened an emergency session in May 1994 and appointed a Special Rapporteur who was also charged with investigating and verifying claims of massive human rights violations including genocide.(9) The Special Rapporteur, Ivoirian lawyer René Degni-Ségui, submitted two reports to the commission in June and August 1994, both of which found that grave violations of humanitarian law and genocide had been committed in Rwanda.(10)
The tribunal shares many characteristics with its immediate predecessor, the ICTFY. The tribunal was established with the aim of bringing to justice individuals suspected of serious violations of international humanitarian law, albeit in what was clearly an internal and not an international conflict. Along with the ongoing deliberations to create a permanent International Criminal Court, the ICTR offers the potential, as the Security Council resolution states, "to contribute to the process of national reconciliation and to the restoration and maintenance of peace. . .and [to] contribute to ensuring that such violations are halted and effectively redressed." (11) Unlike the Nuremberg and Tokyo tribunals created after World War II, the tribunal is not imposing "victor's justice." Its judges are elected by the UN General Assembly; they and the prosecutors, investigators and administrators come from all over the world. There is no death penalty, a source of much controversy with the Rwandese authorities because Rwanda has retained the death penalty. Trials in absentia are prohibited.
III. STATUTE OF THE INTERNATIONAL TRIBUNAL FOR RWANDA
The statute of the ICTR establishes its jurisdiction, the types of crimes to be investigated and prosecuted, the tribunal's relationship with national courts, the organization of the tribunal and its prosecutor's and registrar's offices, the conduct of investigations, rights of the accused, witness protection, rules of procedure, appeals and enforcement of sentences. While largely patterned after the ICTFY, there are a few important differences.(12)
The statute defines the meaning of "serious violations of international humanitarian law" over which the ICTR has jurisdiction in three separate articles. Article 2 provides that the tribunal may prosecute persons suspected of having committed genocide.
Genocide is defined in accordance with the 1948 Genocide Convention to include various acts committed "with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such."(13) The statute lists acts of genocide, which are:
(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 to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
The statute then follows the Genocide Convention by further specifying that genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide are all punishable.
Article 3 of the statute gives the tribunal the power to prosecute "crimes against humanity" which are:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation;
(e) Imprisonment;
(f) Torture;
(g) Rape;
(h) Persecutions on political, racial and religious grounds;
(i) Other inhuman acts.
The statute imposes the requirement that these crimes must be "committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds."(14) This standard is meant to distinguish crimes against humanity from criminal acts or human rights violations that do not rise to the level of a "widespread or systematic attack."
The statute breaks new ground in specifically providing that the tribunal "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" [relating to the protection of victims of non-international armed conflicts].(15)
Common Article 3 prohibits certain acts in cases of non-international armed conflicts, even though the four Conventions are geared to cover international armed conflicts. The violations of Common Article 3 are specified in Article 4 of the tribunal's statute:
(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 judgment 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.
While prohibited, violations of Common Article 3 had not been considered "grave breaches" and many commentators had not regarded violations of Common Article 3 or Protocol II as "crimes" under international humanitarian law. One commentator has asserted that the criminalizing of violations of Common Article 3 is a major development with "enormous normative importance" and the tribunal statute "thus enhances the prospects for treating egregious violations of human rights law—not only of international humanitarian law—as offenses under international law."(16)
Another commentator has noted that the October 1995 decision by the ICTFY Appeals Chamber in the Tadic case reinforces the emerging norm that violations of Common Article 3 and of Protocol II entail individual criminal liability .(17) The tribunal held that:
[C]ustomary international law imposes criminal liability for serious violations of Common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife. . .[T]he International Tribunal has jurisdiction over the alleged acts in the indictment, regardless whether they occurred within an internal or international armed conflict.(18)
The Tadic decision and the ensuing jurisprudence incorporating violations of Common Article 3 into the pantheon of crimes which give rise to individual criminal responsibility, regardless of the nature of the conflict, is a tremendous advance in international law and for prosecutions in the ICTR.
The tribunal's temporal jurisdiction covers the period January 1 to December 31 1994. This timespan includes the central period of the Rwandese genocide and the war that followed. The statute thus excludes acts and incitement to genocide that occurred during 1990 to 1993 and this was one of the reasons why the Rwandese government opposed the establishment of the tribunal. For example, the mass killings of Tutsi-Hima in Mutara in October 1990, of the Bagogwe Tutsi sub-group in January-February 1991 and the killings in the Bugesera region on March 4-5,1992, are outside the tribunal's jurisdiction, as are the early broadcasts on Radio- Television Libre des Milles Collines inciting hatred of the Tutsis. These campaigns were forerunners to the 1994 genocide; lists of names were prepared, militias did the killing and the attacks were swift and carefully planned.(19) Also outside the tribunal's purview are serious violations of humanitarian law by the Rwandese Patriotic Front (RPF) during its various military campaigns in 1990-93 against the then-Rwandese government.
B. Summary of ICTR's Subject Matter Jurisdiction
While there is much overlap in the three core articles governing the tribunal's subject- matter jurisdiction, there are important differences. As mentioned above, the statute, in Article 2, defines genocide using the language of the Genocide Convention of 1948. Here the major challenge is to prove intent, that the acts are motivated by the desire to destroy, in whole or in part a national, ethnic, racial or religious group.
Article 3 prohibits crimes against humanity. While some specified crimes (murder, extermination, deportation, torture, rape) could also come under the genocide provisions, there is no need to prove the intent to eliminate a group entirely or in part. The only qualifier is that such acts must be part of a "widespread or systematic attack" on civilians based on the four grounds already mentioned (national, ethnic, racial or religious). It is important to note that the definition includes a fifth broad category, "political" grounds. This is relevant in the Rwanda context since the former Rwandese government systematically targeted Hutu moderates for death in addition to Tutsis. Hutus who showed any openness to power-sharing with the RPF were at great risk from Hutu extremists.(20) Thus the widespread killings of Hutus by the Hutu-dominated former government and military could not constitute genocide but could come under prohibition of widespread and systematic attacks and persecutions based on political grounds, provided for in Article 3. Similarly, the Tutsi-dominated RPF's attacks on Hutu civilians, while not amounting to genocide, could come within the Article 3 definition of crimes against humanity(21).
Finally, the Article 4 definition of violations of Common Article 3 to the Geneva Conventions and its specific reference to Protocol II significantly expands the grounds of individual criminal liability. There is no need to show either the specific intent to commit genocide or establish that attacks on civilians were "widespread and systematic," or that the crimes occurred as part of an international conflict. Rather, any of the defined acts in Article 4, regardless of intent or extent, are grounds for indictment and prosecution. This article also adds pillage, terrorism, any form of corporal punishment, outrages to personal dignity, and even threats to commit the enumerated acts to the list of prosecutable offenses.
Any individual who "planned, instigated, ordered, committed or otherwise aided or abetted" at any stage of the enumerated crimes in Articles 2-4 may be held criminally responsible.(22) The tribunal has the power to prosecute individuals, not states or other legal entities such as armies or corporations. The statute does not recognize any form of official immunity, even that normally granted to heads-of-state, and occupying an official position cannot serve to mitigate punishment.(23) The statute also provides for criminal responsibility of superiors for the acts of their subordinates that fall within Articles 2-4 if the superior "knew or had reason to know" of such acts and had failed to "take necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof."(24) A subordinate cannot use the defense of superior orders to avoid criminal liability, but this may be considered by the tribunal when weighing the punishment to be assigned if "justice so requires."(25)
The ICTR and national courts have concurrent jurisdiction to prosecute individuals for serious violations of international humanitarian law as defined in Articles 2-4 of the statute.(26) The statute also provides that the ICTR shall have "primacy" over the national courts of all states, including Rwanda. The tribunal may at any stage of the procedure request that a national court defer to the ICTR. Combined with the Security Council Resolution's provision that "all states shall cooperate fully with the International Tribunal . . .and that consequently all states shall take any measures. . .to comply with requests for assistance or orders issued by a Trial Chamber. . .,"(27) the ICTR's primary jurisdiction over cases within its competence is absolute.
Those responsible for serious violations of international humanitarian law committed in Rwanda in 1994 may be prosecuted either at the international or national levels. While not wishing to discourage national prosecutions, the complete devastation of the perennially weak and dependent Rwandese justice system, combined with the flight from Rwanda of many of those responsible for planning, ordering and implementing the genocide, militated in favor of this dual international/national approach to prosecutions. But this means that the ICTR will depend on the willingness of other states to turn over indicted persons, making state cooperation essential to the tribunal's ultimate success.
The ICTR's Rules of Procedure and Evidence(28) track the procedures of the ICTFY for seeking information and deferral from national courts. Rule 8 provides:
Where it appears to the prosecutor that a crime within the jurisdiction of the tribunal is or has been the subject of investigations or criminal proceedings instituted in the courts of any state, he may request the state to forward to him all relevant information in that respect, and the state shall transmit to him such information forthwith in accordance with Article 28 of the statute.
Once the prosecutor has obtained the necessary information from a national court [or even without it], he or she may seek deferral to the ICTR's competence. The prosecution may request deferral when:
(i) the act being investigated or which is the subject of those proceedings is characterized as an ordinary crime;
(ii) there is a lack of impartiality or independence , or the investigations or proceedings are designed to shield the accused from international criminal responsibility, or the case is not diligently prosecuted;
(iii) what is in issue is closely related to, or otherwise involves, significant factual or legal questions which may have implications for investigations or prosecutions before the tribunal
Rule 9 is closely related to Article 9 of the tribunal's statute which establishes the principle of non bis in idem or the prohibition of "double jeopardy." Article 9 states that anyone tried before the ICTR for serious violations of international humanitarian law cannot be tried in a national court for those same acts. The complication arises when a national court begins a trial before the ICTR. Seeking to strike a delicate balance, the statute provides that a person may be subsequently tried before the ICTR after a national trial only if: the act was characterized as an ordinary crime, the national proceedings were not impartial or independent or "were designed to shield the accused" from criminal responsibility or the case was not diligently prosecuted.
The reasons for prohibiting a national trial following a trial before the ICTR are obvious. Re-trials would undermine the credibility of the ICTR and raise doubts about its utility. Retrials would also be blatant violations of the rule against double jeopardy.
When the ICTR seeks a deferral from national courts, it can do so either before, during or after a trial. The major problem comes when the ICTR seeks deferral once a trial has begun or ended. It is here that the Rules of Procedure and Evidence and the statute's provision on Non bis idem intersect. As noted in the Lawyers Committee's previous report on the ICTFY, "[O]ne issue arising from the concurrent jurisdiction of the tribunal and national courts is the tribunal's ability to determine when the conditions for deferral have been met, or when a person already sentenced by a national court should be retried before the tribunal."(29) Neither the statute nor the Rules of Procedure and Evidence offer any guidance on what criteria should determine whether a national trial is "impartial" or "independent," or how to judge if a trial is shielding someone or is not diligently prosecuting the accused. Who will make this decision remains unclear.
This is not an abstract or academic concern for the ICTR.(30) In Rwanda, the immediate challenge is assessing whether the national trials have been impartial and independent. Rwandese national trials may have been "all too diligently" prosecuted, undermining fundamental due process and fair trial guarantees.(31)
D. Selected Rules of Procedure and Evidence
Article 20 of the tribunal's statute contains international fair trial standards found in Article 14 of the International Covenant on Civil and Political Rights (ICCPR), such as the presumption of innocence, the right to counsel, the right to remain silent and the right to confront and call witnesses. The tribunal adopted its Rules of Procedure and Evidence on June 29, 1995. These rules develop the fundamental fair trial guarantees specified in Article 20.
The ICTR's working languages are English and French.(32) The accused has the right to use his/her own language; also, anyone else appearing before the tribunal, other than as counsel, may use his/her own language. The tribunal may bear the costs of interpreting. This is important since most witnesses are unlikely to speak English or French and interpreting from and into Kinyarwanda, the language of all Rwandese, will be necessary.
Like the ICTFY, the ICTR prohibits in absentia trials. Various rules cover the pre-trial phase of investigation, the questioning of suspects, the issuance of warrants and the arresting of individuals indicted by the ICTR.
Rule 42 establishes the core rights of suspects during questioning:
Questioning of a suspect may not proceed without the presence of counsel unless the suspect has voluntarily waived this right. This waiver may be revoked by the suspect at any time, in which case questioning cannot continue without counsel present.
Rule 43 provides for the audio- and video-taping of all interviews with the suspect. The suspect has the opportunity at the end of the session to add or clarify anything said and shall receive a copy of the transcript of the session.
Once the prosecutor concludes that sufficient evidence exists to indict the suspect, an indictment with supporting materials is sent to the registrar, who in turn forwards the indictment to a judge for review. If confirmed, the indictment is made public, unless it is decided to wait until the indictment is served on the accused and the accused can be detained, to protect confidential information or the "interests of justice."(33)
The registrar transmits the arrest warrant to the state where the accused resides or was last present. Article 28 of the ICTR statute requires the state to execute the warrant and arrest and surrender the accused to the tribunal. This obligation supersedes any national laws or treaty obligations on extradition.(34) If the state receiving the warrant cannot execute it, the ICTR must be informed immediately and any failure to report is deemed a failure to execute, in which case the president of the tribunal may notify the Security Council.(35)
When an arrest warrant has not been executed after all the steps outlined, the judge who confirmed the indictment may order that the indictment be submitted by the prosecutor in open court. This has become known as a rule 61 proceeding. The prosecutor may present all the evidence accumulated thus far and even call witnesses before the Trial Chamber. If it concludes on the basis of the evidence that "there are reasonable grounds for believing that the accused has committed all or any of the crimes charged in the indictment" it may issue an international arrest warrant for transmittal to all states.(36) The ICTR has amended rule 61 to allow the Trial Chamber to order states to freeze the accused's assets.
The underlying principle of the ICTR's Rules of Procedure and Evidence is "equality of arms": the effort to put the prosecution and defense on equal footing as much as possible and to remove any inherent advantages one side may enjoy over the other. This principle is nowhere more apparent than in rule 66, which requires the prosecutor to turn over to the defense, as soon as practicable after the initial appearance of the accused, "copies of supporting materials which supported the indictment." If the defense requests, and subject to some restrictions, the prosecutor must also allow the defense to inspect "any books, documents, photographs, and tangible objects in his custody or control, which are material to the preparation of the defense" or that the prosecutor intends to introduce into evidence or were obtained from the accused. The only exception is if such disclosure would prejudice further investigations or the security interests of any state. This exception could be important since the intelligence services of several states may have key information about the genocide, its architects and implementers.
Rules 67 and 68 reinforce the effort to create "equality of arms" by requiring the prosecutor to notify the defense as early as possible of the names of the prosecution witnesses to be called. The prosecutor must, in addition, disclose any evidence that may exculpate the accused, mitigate the guilt or undermine the credibility of the prosecution's evidence.(37) The defense, in turn, must notify the prosecutor of any defenses it intends to offer. These include:
The ICTR faces a dilemma common to all criminal courts: how to balance the need for an open, public trial where witnesses testify and can be confronted in cross-examination by the accused's counsel with the equally pressing concern for protecting witnesses whose lives may be at risk precisely because they are providing evidence that may lead to convictions.
Article 21 of the statute requires that the tribunal's Rules of Procedure and Evidence provide for measures to protect witnesses. Rule 75 attempts to strike a balance between these competing interests. The ICTR may "order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused." The rule provides that a trial chamber may hold in camera proceedings to decide which protection measures would best meet the needs of both the prosecution and the defense. rule 75(B) lists the choices:
(i) measures to prevent the disclosure to the public or the media of the identity or whereabouts of a victim or witness, or of persons related to or associated with him by such means as:
(a) expunging names and identifying information from the Chamber's public records;
(b) non-disclosure to the public of any records identifying the victim;
(c) giving of testimony through image- or voice-altering devices or closed circuit television; and
(d) assignment of a pseudonym;
(ii) closed sessions, in accordance with rule 79(38);
(iii) appropriate measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television.
Rule 34 requires the tribunal's registrar to establish a Victims and Witnesses Unit to recommend appropriate measures of protection for victims and witnesses and to provide counseling and support, especially in cases of rape and sexual assault. The rule also urges the appointment of qualified women to posts in this unit.
Rule 69 allows the prosecutor to seek to keep confidential the identity of victims or witnesses who may be at risk until the tribunal can secure their protection. Once they are in the tribunal's protection, following consultations with the Victims and Witnesses Unit, their identities must be disclosed to the defense, consistent with any measures adopted under rule 75 cited above, sufficiently in advance of the trial to allow for preparing an adequate defense
Witness and victim protection has already emerged as a major problem for the tribunal. This is especially true for prosecution witnesses. The ongoing violence in Rwanda has already claimed many genocide survivors who were both potential victims and witnesses. In the first nine months of 1996, raids from camps in Zaire (now the Democratic Republic of Congo) by members of the former Rwandese army, the FAR, and the Interahamwe militia, often targeted genocide survivors. After the war began in eastern Zaire in early October 1996 between the Zairian Tutsis and the Zairian army, hundreds of thousands of Rwandese Hutus returned from their camps in Zaire and Tanzania to Rwanda. Among them were members of the FAR and Interahamwe who continued their attacks on genocide survivors, this time from within Rwanda. The United Nations Human Rights Field Operation in Rwanda (HRFOR) has investigated these attacks and uncovered chilling accounts of targeted killings to eliminate potential witnesses who could testify about the 1994 genocide in either Rwandese courts or the ICTR.
HRFOR received reports during 1996 of "more than 64 separate incidents throughout the country in which an estimated 227 genocide survivors and their associates were killed and 56 were injured."(39) By "associates" HRFOR means family members of genocide survivors, persons helping to bring perpetrators to justice and persons who are perceived as helping the survivors. In one attack investigated by HRFOR, on December 23, 1996 five to nine unidentified armed individuals, some wearing FAR uniforms, killed 11 people in a shop in Taba Commune, Gitarama prefecture. The victims included four genocide survivors. The principal target of the attack appears to have been a shop owner who had given testimony to Rwandese justice officials and to investigators to the ICTR about persons suspected of participating in the genocide.(40) Emanuel Rudasingwa, 42, had been scheduled to testify at the tribunal in January 1997, in the trial of Jean-Paul Akayesu, the former mayor of Taba.(41) He was to provide information on Akayesu's role in holding meetings during the genocide to plan the killing of Tutsis. According to Rudasingwa's widow, Godelieve Mukasarasi, tribunal investigators, in marked UN vehicles, came to Rudasingwa's store numerous times to interview him. She maintains that Hutus who returned from exile in Tanzania and Zaire in December and who had participated in the genocide saw the UN vehicles. "So they said, 'Let's kill him too.'"(42)
In another case documented by the HRFOR, another genocide witness, also in Taba Commune, Gitarama prefecture, received repeated death threats throughout June 1996 from neighbors who threatened to kill her if she went to testify at the ICTR; she had already provided information to tribunal investigators. She has left her home as a result.
Attacks have intensified in early 1997. From January to mid-February, HRFOR says it:
received reports of eight separate incidents in the country in which an estimated 54 genocide survivors and persons associated with them were killed and 22 were injured. This represents a significant increase in killings and other attacks against genocide survivors and their associates, compared to previous months. . . .To date, HRFOR has received reports of the killing of 14 persons because of their presumed Tutsi origin in one incident on 9 February.(43)
In addition to these killings, HRFOR reported that threats and other acts of intimidation had been directed against witnesses in Gisenyi and Kigali who had appeared before the ICTR.(44)
The tribunal's evidentiary rules are flexible and seek to allow all relevant evidence.(45) However, evidence that is obtained using methods that undermine its reliability or would damage the "integrity of the proceedings" is not admissible.(46) Thus confessions are admissible, provided that rules governing questioning of suspects/accused have been followed; confessions are deemed to be voluntary unless shown otherwise by the defense.(47)
Rule 96 includes enlightened provisions concerning evidence in cases of sexual assault. The victim's testimony does not have to be corroborated, and consent is not allowed as a defense if the victim:
(a) has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression; or
(b) reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear.
Before any evidence on consent is allowed, the accused must satisfy the Trial Chamber, sitting in closed session, that the evidence of consent is "relevant and credible." Finally, the prior sexual conduct of the victim is not admissible. Rape was systematic during the 1994 genocide(48) and was part of the strategy to destroy the Tutsis. This rule should increase the tribunal's capacity to document the extent of rape and sexual assault and to prosecute those responsible.
Rule 90 recognizes a limited form of immunity; the Trial Chamber may compel a witness to answer a question even if the witness objects that answering would incriminate him/her. Any such compelled testimony cannot be used as evidence in subsequent prosecution against the witness other than for perjury.
In exceptional circumstances, either party may ask the Trial Chamber to take a deposition of a witness; reasonable notice must be provided to the other party who also has the right to be present and to cross-examine the person being deposed. Video-conferencing may also be used to take a deposition.(49)
The maximum sentence the ICTR can impose is life imprisonment. The tribunal cannot impose the death penalty. This is a striking difference with the Rwandese national courts which may impose the death penalty.
The tribunal shall consider several factors in determining a sentence, including aggravating and mitigating circumstances, the "general practice regarding prison sentences in the courts of Rwanda,"(50) time already served—either in another state or in pre-trail detention.(51) The tribunal and the International Committee of the Red Cross (ICRC) have agreed that the ICRC has complete and free access to inspect the tribunal's detention facility.(52)
The convicted person shall serve his/her sentence either in Rwanda or any other state that has indicated its willingness to accept convicted persons.(53) Imprisonment in Rwanda would be highly problematic given the cruel, inhuman and degrading conditions currently prevailing in all Rwandese prisons and detention centers.(54)
Each side has 30 days to appeal a judgment or sentence from the date on which the judgment or sentence was pronounced. New evidence not available at trial may be introduced.(55)
The ICTR has three principal organs: the Chambers consisting of two Trial Chambers and one Appeals Chamber, the prosecutor and the registry.
1. The Chambers
The two Trial Chambers of the ICTR are based in Arusha, Tanzania. There are 11 judges, three in each of the Trial Chambers and five in the Appeals Chamber. The judges in the Trial Chambers are elected for four-year terms. To insure legal consistency between the two tribunals, the members of the Appeals Chamber of the ICTFY also serve as the Appeals Chamber for the ICTR. For this reason they sit in The Hague rather than in Arusha. (56)
On May 24 and 25, 1995 the UN General Assembly elected six judges to serve in the ICTR's Trial Chambers: Lennart Aspergren (Sweden), Laity Kama (Senegal), Tafazzal Hossain Khan (Bangladesh), Yakov Ostrovsky (Russia), Navaethem Pillay (South Africa) and William Hussein Sekule (Tanzania).
Article 15 of the ICTR's statute provides that the prosecutor of the ICTFY also serve as the prosecutor of the ICTR; this was done to encourage consistency in prosecutorial strategy/approach. Louise Arbour, who succeeded Richard Goldstone in October 1996, is the ICTR's prosecutor. A deputy prosecutor is based in Kigali, Rwanda and is responsible for day-to-day operations. A Cameroonian lawyer, Bernard Acho Muna, was named deputy prosecutor on April 30, 1997, replacing a judge from Madagascar, Honore Rakotomanana, who had served since March 1995.(57)
The prosecutor's office has four sections: Investigations, Prosecution, Legal Services and Administration and Records. The Investigations Section is the largest and interviews witnesses and conducts field investigations. For example, with assistance from Physicians for Human Rights, the Investigations Section studied and plotted the location of cadavers, buildings and roads at mass grave sites in Kibuye prefecture in October and December 1995.(58) The Prosecution Section is responsible for drafting indictments and appearing in the Trial Chambers. The Special Advisory Section advises the Investigation and Prosecution sections on international and comparative law. It advises both the ICTR and the ICTFY and seeks to harmonize approaches and avoid duplication. The Administration and Records Section is responsible for computer systems, and the handling of all materials generated by the prosecutor's office.
3. The Registry
The registry is responsible for administering and servicing the tribunal. It handles all public information and external relations. It is also responsible for running the Witnesses and Victims Unit, providing defense counsel and all procedures in connection with confirming, amending or withdrawing indictments, issuing arrest warrants and the procedures related to cases where warrants have not been executed. It also oversees amicus curiae briefs, record- keeping, summonses for witnesses and experts, and appellate and review procedures. The registry is also responsible for the myriad logistical and administrative issues between the ICTR and Tanzania, the host country.
IV.STATUS OF THE ICTR'S RELATIONS WITH STATES
The tribunal cannot function without the support and cooperation of states. As an international tribunal, the ICTR has no capacity to arrest; it has no police force. The tribunal occupies a paradoxical position: its creation under the authority of Chapter VII of the UN Charter creates binding obligations on all UN member states, yet the tribunal has no power to compel cooperation and enforcement of its orders. As tribunal president Antonio Cassesse has said:
Our tribunal is like a giant who has no arms and no legs. To walk and work, he needs artificial limbs. These artificial limbs are the state authorities; without their help the tribunal cannot operate.(59)
As noted above, Article 28 of the tribunal's statute requires state cooperation in all matters relating to investigating and prosecuting individuals accused of committing serious violations of humanitarian law. States must comply with the tribunal's requests for assistance and for orders issued by Trial Chambers. Since the tribunal has no police powers, its warrants are enforceable only if the states take action to enforce them. States must cooperate in locating and identifying witnesses, victims and suspects, taking testimony, preserving and producing evidence, serving documents and arresting, detaining, surrendering or transferring the accused to the tribunal's seat in Arusha. UN member-states must also inform the tribunal when a suspect or an indicted person is arrested in their territory or when they are not able to execute an arrest warrant. The transfer or surrender to the tribunal of persons arrested should be swift and not subject to delays often encountered in extradition proceedings. The states must also comply with the tribunal's rules covering the rights of the detainee, such as the right to be informed of the charges and the right to counsel. States must also help in providing security to witnesses, share information with the tribunal on the criminal activity of the suspect or the accused and furnish transport to bring the person to Arusha.
The Security Council reiterated the need for states to adopt requisite measures to support the tribunal in February 1995. Resolution 978 urges all states:
to arrest and detain, in accordance with their national law and relevant standards of international law, pending prosecution by the International Tribunal for Rwanda or by the appropriate national authorities, persons found within their territory against whom there is sufficient evidence that they were responsible for acts within the jurisdiction of the International Tribunal for Rwanda.(60)
Despite these Security Council exhortations, the record of state cooperation with the tribunal so far is mixed. All 185 member-states of the UN are required to cooperate with the tribunal to gather and preserve evidence, arrest, surrender or transfer indictees and to pass laws that allow such cooperation. Some states have enacted legislation implementing the tribunal's statute and Rules of Procedure and Evidence and have designated a body in their domestic legal system to be responsible for responding to requests from the tribunal. The vast majority has done neither. As of June 1997, nearly three years after the ICTR was established, "only 11 states were known to have enacted such legislation for that tribunal. Four states have informed the tribunal that no legislation was needed for their authorities to cooperate fully..."(61)
There was great initial hostility to the tribunal in parts of Africa shortly after its inception. President Daniel arap Moi of Kenya threatened to arrest anyone from the tribunal who came to Kenya; at that time Kenya was sheltering several well-known leaders of the former Rwandese government.(62) Former President Mobutu of Zaire, another close ally of the former regime in Kigali and host to many FAR senior officers, militia leaders and former government officials, also expressed contempt for the tribunal. Reacting to the hostility, Justice Pillay, who is from South Africa and sits on one of the tribunal's Trial Chambers, appealed to other African states in late 1995 to help and to accelerate arrests and transfers of genocide suspects who had found temporary refuge in various African states.(63)
While absolute rejection of the tribunal has subsided, limited progress has occurred, especially during 1996 and the early part of 1997. Of the 21 persons indicted by the ICTR, as of June 1997, 12 are in custody in Arusha and one in the U.S. This percentage is much higher than that for the ICTFY, which has custody over only nine of the 75 persons indicted thus far.
Zambia, Belgium, Switzerland, Kenya and Cameroon have all provisionally arrested and transferred individuals indicted by the ICTR to Arusha. Zambia transferred three suspects (Georges A. Rutaganda, Jean-Paul Akayesu and Clement Kayishema) on May 26, 1996 and holds several more while the tribunal continues its investigations. For example, Zambia is believed to be holding Jean de Dieu Habineza, a former government minister, and the former mayor of Kigali, Como Bizimungu,(64) who is believed to have played a significant role in the genocide.
Belgium deferred proceedings in its own courts pending further investigations by the tribunal of persons held in detention in Belgium. Belgium transferred Eli Ndayamaje, a former mayor of Muganza commune, and Joseph Kanyabashi, former mayor of Ngoma commune, to Arusha on November 9, 1996.(65) Belgium also agreed to suspend extradition proceedings it had begun in Cameroon concerning four persons in detention there who Belgium believed were responsible for the killing of 10 Belgian peacekeepers in April 1994.
The Cameroonian cases are significant since Cameroon has not adopted legislation authorizing cooperation on detaining and transferring suspects to the tribunal. Twelve members of the former Rwandese government were arrested in Cameroon in March 1996. These included Theoneste Bagosora, a senior FAR official, and Ferdinand Nahimana, another of the alleged "architects" of the genocide. Belgium wanted to seek Bagosora's extradition for his alleged role in the murder of 10 Belgian peacekeepers, but dropped this claim following a decision by the Belgian Supreme Court. Rwanda also requested the extradition of all 12 for trial in Rwanda. On May 31, 1996 a court in Cameroon found that the tribunal had primary jurisdiction over national courts and that the 12 detainees should be transferred to Arusha on receipt of a formal request from the tribunal. In June 1996 the tribunal requested the transfer of four of the 12, Bagosora, Nahimana, Anatole Nsengiyuma and Andre Tagerura. After much delay, the Cameroonian government transferred the four to Arusha in January 1997.
A Swiss court rejected Alfred Musema's appeal of a decision ordering his transfer to the tribunal.(66) Musema had been held in a Swiss prison since February 1995; he was a tea factory manager in Kibuye prefecture and is accused of organizing and participating in the killing of Tutsis and moderate Hutus. The court ruled that it was complying with a "transfer" request by the ICTR which is different from a state request for extradition. Extradition laws and treaties can be complex, time-consuming and contain provisions prohibiting the extradition of a state's citizen, thus the Swiss decision establishes an important precedent. The Swiss court also rejected Musema's claim that he could not receive a fair trial and said he would receive a proper hearing in spite of the tribunal's well-publicized administrative failings. The Swiss transferred Musema to the tribunal's detention center in Arusha on May 21, 1997.(67)
The United States has arrested and detained Elizaphan Ntakirutimana, a Rwandese national who was residing with family members in Laredo, Texas; the ICTR has indicted him for genocide and crimes against humanity. The U.S. is seeking to transfer Nkakirutimana but he is contesting this action and the case is currently before the U.S. District Court in the Southern District of Texas. The U.S. has signed a Surrender Agreement with the tribunal and Congress has passed legislation implementing this agreement.(68) The agreement's introductory language is clear and compelling:
The United States agrees to surrender to the tribunal, pursuant to the provisions of this Agreement and the [Rwanda tribunal] statute, persons, including United States citizens, found in its territory whom the tribunal has charged with or found guilty of a violation or violations within the competence of the tribunal as defined in the statute.
The ICTR has also sought state cooperation through secondment of nationals to work in the tribunal's various sections. UN recruitment procedures are notoriously slow and cumbersome and by sending national experts member-states can accelerate the tribunal's capacity to work. Some six states have sent nationals to work for the tribunal, including Canada, the Netherlands, Norway, Switzerland and the United Kingdom (all primarily investigators) and the United States (prosecutors, investigators and information specialists).(69) The United States has contributed valuable computers, database programs, including a database with more than 5,500 documents, along with basic office equipment, legal texts and furniture. Denmark hired an airplane to transport staff between Kigali and Arusha for three months and Belgium has since picked up the costs for another year.
As noted above, both the statute and the Rules of Procedure and Evidence provide that after sentencing the convicted person shall serve the sentence either in Rwanda or in "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."(70) To date, only six states (Austria, Belgium, Denmark, Norway, Sweden and Switzerland) have enacted legislation providing prison facilities for individuals convicted by the ICTR.(71)
V. ANALYSIS OF THE PROCEEDINGS IN THE ICTR
The prosecutor submitted his first indictment for the ICTR on November 22, 1995, a little more than one year after its creation. The first trial began in January 1997, 14 months later and just weeks after the first genocide trial in the Rwandese national courts.
This slow pace results from inadequate staffing and funding, limited cooperation from states, and the understandable care investigators and prosecutors are showing in building the strongest case possible where the most serious crimes are alleged.
To date, the tribunal has issued 14 indictments naming 21 persons suspected of genocide.(72) At least nine more indictments are expected.(73) 21 arrest warrants have also been issued. The tribunal has set trial dates for more than a half-dozen accused. As of June 1997, three trials have begun.
A. Clement Kayishema
The former prefect (governor) of the prefecture of Kibuye, Clement Kayishema was the most powerful government official in this western section of Rwanda, a region that saw some of the most horrific and massive killing in the 1994 genocide. The ICTR has brought 25 charges against him, among the most serious being:
1) The massacres committed in the Catholic Church and in Saint Jean home in the town of Kibuye, where thousands of men, women and children were killed and many people were injured, on 17 April 1994;
2) The massacres committed at the sports ground in Kibuye, where thousands of men, women and children were killed and many others were injured, on April 18 and 19, 1994;
3) The massacres committed in the church in Mubuga, where thousands of men, women and children were killed and many others persons were beaten up, between April 14 and 17, 1994;
4) The massacres committed in Bisesero region, in which thousands of men, women and children were killed and many other persons were injured on June 18 and 30, 1994.(74)
When arraigned before the tribunal on May 31, 1996, Kayishema pleaded not guilty to all 25 charges. In early April 1997, the tribunal announced that it would try Kayishema and Obed Ruzindana jointly. Ruzindana, 38, was a businessman and is also accused of organizing massacres in western Rwanda. Kenyan police had arrested Ruzindana in September 1996; it was Kenya's first arrest of a genocide suspect. Ruzindana was later transferred to Arusha.
The prosecution applied for a delay to allow consolidating the indictments while the defense said they were ready for trial. The Trial Chamber ordered the prosecution to revise the indictments and be ready by April 11. Then on May 8, the Trial Chamber inexplicably adjourned the trial after a closed session. The trial will resume on a date agreed to by the defense and the prosecution. Before adjourning, the tribunal heard testimony from a witness named "L" who stated that Kayishema visited the Kibuye stadium where many Tutsis had gathered and ordered "a white man to stop giving them food."(75) The witness then testified that Kayishema ordered the military police to shoot the Tutsis. Fourteen witnesses have testified against Kayishema so far and none against Ruzindana.
On Thursday, May 30, 1996, Georges Rutaganda, 38 years old, appeared before the ICTR and pleaded not guilty to eight counts accusing him of genocide, crimes against humanity and violations of Common Article 3 of the Geneva Conventions. Rutaganda is from Gitarama, the scene of much killing and was transferred from Zambia on May 21, 1996. The indictment charges that he was a senior official in the party of assassinated president Juvenal Habyarimana and, as vice-president of the Interahamwe militia, helped arm the militia in Kigali, placing militia members at roadblocks and ordered them to round up and kill Tutsis. The indictment also alleges that he was a shareholder in Radio Télévision Libre des Milles Collines which regularly broadcast incitements to commit genocide. Rutaganda was represented at this hearing by Belgian lawyer Luc de Temmerman who said he was retained by the Rally for Defense of Democracy, a Hutu refugee group based in Kenya.(76)
Rutaganda was accused of directing men under his control to take 10 Tutsi detainees to a deep hole and then ordering them to be killed. The 10 Tutsis were killed with machetes and their bodies then thrown into the hole.
Rutaganda's trial began on March 18, 1997. Two lawyers, Tiphaine Dickson of Canada and de Temmerman of Belgium, represent Rutaganda. The prosecution initially planned on calling 35 witnesses. His lawyers maintain that he was an ordinary businessman and that his position as a senior officer of the Interahamwe was a mere formality.
Another defense offered on Rutaganda's behalf underscores the importance of the tribunal's role in establishing not only individual guilt but also the historical record. De Temmerman stated in his opening argument that he will show that no genocide took place but rather the Hutus were simply defending themselves from Tutsi attacks. "We must examine the role of the Interahamwe and examine whether the massacres were planned or not."(77) "It will come out clearly that it is not Hutus who are guilty. . . .There was no genocide. It was a situation of mass killings in a state of war where everyone was killing their enemies."(78)
The RPF undoubtedly committed serious violations of international humanitarian law, yet this must not obscure the 1994 genocide. The tribunal's investigators have already compiled evidence to refute the myth of an ethnic war. Forensic scientists found mass graves in Kibuye showing that 45% of the dead were under 18 and two-thirds were women and children. Most died from blows from blunt instruments or machetes. There were few wounds to the hands or arms meaning that most offered little or no resistance. One investigator noted "The kind of evidence we are collecting will disallow this revisionist idea that there was no genocide, that it was war. . .If this was a war, then the infants were vicious infants."(79) The challenge for the tribunal is to link specific individuals with this evidence.
The Trial Chamber had twice adjourned Rutaganda's trial and it finally began in early
June 1997. For the first time, the tribunal heard testimony from a witness in closed session since the court determined that part of the testimony may compromise his safety.(80) Another witness, identified as "B", testified that French soldiers had taught Hutu extremist militias how to kill.(81) This is a frequent allegation which the tribunal's investigations and hearings may help clarify.
Jean-Paul Akayesu, the 43 year-old former mayor of Taba, a commune near Gitarama, has been charged on 12 counts, including genocide and crimes against humanity. The indictment alleges that he tortured people who hid Tutsis, that he ordered the killing of eight Tutsis and that he oversaw the killing of five schoolteachers.(82) He was arraigned on May 31, 1996. His trial was supposed to have begun on September 27, but his lawyer requested a postponement because he had not had the time or resources to prepare a defense; on two other occasions Akayesu fired his lawyers just before the trial date. In what can only be described as delaying tactics, Akayesu, on October 31, fired his Belgian attorney, Johan Scheers, and named an American to replace him. The tribunal once again postponed his trial to January 1997. Akayesu once again tried to fire his lawyers but the presiding trial judge refused any further delay and allowed Akayesu to cross-examine witnesses himself while the court considered his request.(83)
While the prosecution and the Rwandese government were understandably frustrated by the delay, the tribunal clearly needed more time and resources to mount an effective witness protection program before beginning the Akayesu trial. The murder of a witness, her husband, their four children and three other children on January 5, 1997, just days before she was to fly to Arusha to testify for the prosecution, underscored the need for drastic action. The tribunal still had no means to scramble voices, hide faces or otherwise protect witnesses's identity.
As an interim measure, the tribunal did not reveal the names of witnesses in open court but identified them by letters of the alphabet. Also, the court forbade anyone from filming, sketching or photographing witnesses while they were at the ICTR. Finally, in mid-January, Akayesu's trial began, the first for the ICTR. The court decided to allow him to represent himself temporarily. Akayesu directly cross-examined the first few prosecution witnesses, who included one 70 year-old woman who testified that he had beaten and tortured her. Akayesu inspected in court the wounds of another witness, a fellow Hutu and coffee farmer, who said that Akayesu had attacked him.(84) The confrontation of accused and accuser was quite emotional at times; the 70 year-old at one point screamed at Akayesu: "did you not want to crush me with that car? You told me to lie on the ground and you were going to drive over me to crush me."(85) She charged that Akayesu attacked her, a Hutu, because she would not tell him where Tutsi were hiding.
Akayesu subsequently agreed to accept Nicolas Tiangaye from the Central African Republic as his counsel and Tiangaye cross-examined prosecution witnesses. They provided vivid, at times emotional testimony about Akayesu's role. Witness "D" described how he watched from a hiding place as Akayesu gave the order to kill "D's" three brothers. Witness "V", a Tutsi teacher, told of how Akayesu boasted of having a list of people who should be killed.
As the trial entered its third week, Akayesu requested an adjournment because of "headaches." A doctor examined him for possible malaria. The final prosecution witness, "H", was a 26 year-old Tutsi woman, told how Interahamwe militia had raped her and how "the militiamen told passing men to come and pick young girls from where we were, register their names and then the men could take them away, after which they were all killed. . .If Akayesu wanted he could have prevented these events from taking place because he was the mayor of the commune but by not protecting us from all these events he participated in them."(86) The prosecution called 22 witnesses.
In early March 1997, the tribunal postponed the trial until May to allow Akayesu time to prepare a defense following completion of the prosecution's case. When his lawyers missed their flight to Arusha for the May 21 proceedings, the trial was delayed again. Finally, the trial was postponed until Sept. 29; Akayesu's lawyer announced that he had been unable to find any defense witnesses who would testify on his behalf.(87)
D. Colonel Theoneste Bagosora
The most senior official captured, arrested, indicted and transferred to the tribunal so far, Col. Theoneste Bagosora, 56 years old, arrived in Arusha along with three others surrendered by Cameroon to the tribunal on January 23, 1997 in the midst of the Akayesu proceedings. Indicted by the tribunal on August 16, 1996, Bagosora finally appeared before the ICTR on March 7 and pleaded not guilty to genocide, crimes against humanity and two counts of violations of Common Article 3 of the Geneva Conventions. The court had set his original hearing for February 21 but had to postpone it until March when his lawyer failed to appear. Before hearing the charges against him, Bagosora's lawyer requested the tribunal to provide information on the April 6, 1994 plane crash. He was represented by defense lawyer Benjamin Ondingui of Cameroon but Bagosora requested that de Temmerman represent him.
Bagosora is undisputedly the "biggest fish" that the tribunal has managed to apprehend so far. He is among the core group of a dozen or so people who allegedly planned the genocide. Bagosora was known for his ferocious opposition to any settlement with the RPF, and especially the power-sharing arrangement embodied in the 1993 Arusha Accords. (88) According to the research conducted by Filip Reyntjens as described in his study Rwanda: Trois Jours Qui Ont Fait Basculer l'Histoire,(89) a reception two days before the plane carrying Presidents Habyarimana of Rwanda and Cyprien Ntaryamira of Burundi was shot down as they returned from a negotiating session in Dar-es-Salaam with the RPF, Bagosora was reported to have said that the Arusha Accords offered no solution and it was necessary to exterminate all Tutsis. He was reputed to be one of the chief organizers of death squads that started operations in 1991, shortly after the initial RPF incursion into northeastern Rwanda.
A member of the "akazu" or the inner circle of Habyarimana's in-laws and advisors from the Hutu stronghold of Ruhengeri/Gisenyi in northwestern Rwanda, Bagosora occupied the key post of "chef de cabinet" in the Ministry of Defense. Told at 9:00 p.m. on April 6, 1994 that the president's plane had been shot down, he went immediately to a meeting of senior military officers which he chaired.(90) The Army Chief of Staff was killed in the plane crash and the Minister of Defense was out of the country. Jumping over the heads of several actively serving FAR officers, Bagosora took charge of a "Crisis Committee" and refused any contact with the Prime Minister, the Hutu moderate Agathe Uwilingiyimana, who, under the Arusha Accords, should have become interim head of state. The meeting broke up at about 2:00, and as Reyntjens notes: "from 2:00 to 7:00, this leaves a large gap in accounting for Colonel Bagosora's activities. What was he doing those five hours, during which the veritable 'killing machine' took off?"(91) Reyntjens also cites witnesses who heard Bagosora order several army officers on the morning of April 7: "Muhere aruhande" ("begin on one side") which was immediately understood to mean to begin a systematic killing operation.(92)
The tribunal has not yet set a date for Bagosora's trial. His trial should illuminate the planning, structure and implementation of the genocide, and provide more details on the murder of the Prime Minister and the Belgian peacekeepers, as well as possibly revealing the roles of the other senior "intellectual authors" of the genocide. Two of the others transferred with him from Cameroon, Lt. Col. Anatole Nsengiyunva, former military head in the northeastern city of Gisenyi, and Ferdindand Nahimana, former director of Radio Télévision Libre des Milles Collines, pleaded not guilty to charges on Febrary 20, 1997 that they had presided over meetings ordering the killing of Tutsis and had control over broadcasts designed to "achieve inter-ethnic hatred and encourage the population to kill and commit other acts of violence," respectively.(93) Judge Laity Koma recently ruled that defense lawyers would not be told the names immediately of witnesses testifying against Nahimana and Nsengiyunva. Lawyers would learn their identities later but still in time to prepare a defense.(94)
VI. THE ICTR'S FIRST TWO YEARS:
Although originally in favor of establishing an international tribunal, the Rwandese ambassador to the UN, who also sat on the Security Council, voted against the resolution creating the ICTR. The ambassador cited the failure to include within the tribunal's competence events from 1990 to 1994 that were integral in planning and executing the genocide, the failure to create a separate appeals panel and a separate chief prosecutor for the ICTR, the refusal to include the death penalty and the location of the tribunal outside Rwanda.(95) The Rwandese cite the anomalous result of lower-ranking officials being executed after trials in Rwanda while the more culpable planners of the genocide receive medium-term prison sentences, possibly serving such sentences in relatively comfortable prisons in Europe.
Relations between the ICTR and Rwanda have steadily deteriorated. In March 1996 RPA soldiers stopped a clearly marked UN vehicle in downtown Kigali and beat three tribunal investigators. More recently, a letter from the government to the Security Council included unwarranted and personal attacks on the new prosecutor, Louise Arbour and street demonstrators protested her presence in Kigali during a working visit in May 1997. Unfortunately, the tribunal's management and administrative failings in 1995-96 provided much genuine grounds for criticism.
Creating an institution from scratch is never easy. Building a team of investigators, prosecutors, administrators and support personnel in Kigali and Arusha, which have limited infrastructure and where communications and travel are difficult and expensive, only compounded the challenge. But the management and administrative problems of the ICTR were allowed to fester for far too long.
A. Recruiting Personnel
Finding qualified people who would work in Kigali or Arusha was difficult enough but UN hiring rules compounded the problem. Key posts in the deputy prosecutor's office and in the investigative division were unfilled for months. For 1996, nearly half of the professional posts budgeted for the ICTR were vacant.(96) One major hold-up was that unlike
the ICTFY, the ICTR did not have the authority to appoint international staff and that two personnel officers in New York dealt with personnel matters. The UN Budgetary Committee had previously recommended granting the ICTR the necessary authority, but as of April 1996 no action had been taken.
Several states have generously loaned specialists to the tribunal. Seconding nationals is faster than going through normal UN recruiting but even this has taken too long and many more investigators, lawyers and interpreters are needed. Prosecutor Arbour found that 64 out of 160 investigator positions were vacant when she took over in October 1996.(97) No wonder it has taken more than two years for the tribunal to start the first trials.
B. Funding
The tribunal's funding has been inadequate and unpredictable since its inception. Dependent on voluntary contributions and interim budgets, the tribunal operated with funds appropriated by the General Assembly that were at levels significantly below what the Secretary-General recommended for 1995-96.(98)
The Secretary-General recommended that the tribunal receive $46,732,700 for 1997, an increase of $10,238,000 over 1996 spending from the UN budget.(99) While this amount is a bare minimum, the real concern about the ICTR is whether the money previously allocated was well spent.
C. Mismanagement
The tribunal's most serious problem has been mismanagement. Reports started to emerge in late 1995 and early 1996 of serious waste, inefficiency, patronage and corruption, especially in the registry in Arusha.
As early as February 1996, tribunal staff in Arusha complained that they lacked vehicles necessary to carry out investigations and communications equipment. A Witness Protection Unit had still not been created and some tribunal investigators rightly feared that their work was endangering people's lives. Despite a $36 million budget for 1996, basic office materials such as pens and paper were lacking while security officers lacked guns.(100) The press office had one working telephone. In May 1996, a tribunal investigator complained of favoritism in the registrar's office amounting to fraud; hiring and contracts were awarded to friends, relatives or lovers. Essential work such as forensic investigations at mass graves were put on hold through lack of funds and necessary equipment.
Long and inexplicable delays in purchasing vital equipment postponed the core work of the tribunal further undermining its credibility, especially with its most important audience, the Rwandese. For example, when Jean-Paul Akayesu's trial was supposed to start in October 1996, there was no way to videotape or film the proceedings even though money to purchase the equipment had been available for four months.(101)
Most criticism centered on the near absolute control of former registrar Andronico Adede. Virtually every decision had to pass through him and he was frequently on the road in 1996; while away matters requiring his approval remained frozen. In one internal document, a former chief transport officer wrote, "If ICTR intends to have its vehicles running on a daily basis in order to fulfill its mandate, then I implore the administration to bring the appropriate staff on board."(102) Such complaints and in-fighting increased while morale plummeted. Relations with the prosecutor's office in Kigali worsened.
Deputy Prosecutor Rakotomana was criticized for his less than aggressive approach to investigations; his own staff accused him of lacking any overall prosecutorial strategy and their work seemed to be driven more by who had happened to be arrested and transferred to the tribunal rather than by any concerted attempt to identify and arrest the real planners of the genocide. Even Chief Prosecutor Goldstone was criticized by staffers in Kigali for neglecting the ICTR and spending much more time on the Former Yugoslavia. Staff in Kigali felt slighted and demoralized. "We're isolated. . .This is no way to run an international tribunal," said Trial Chamber Judge Yakov Ostrovsky.(103)
All this public criticism gave the Rwandese authorities even more reason to denounce the tribunal, suggest that international assistance could be better spent rebuilding the Rwandese justice system and encourage non-compliance with the ICTR. Foreign Minister Anastase Gasana said that the government would not hand over the suspects held in Cameroon to the tribunal if they were extradited to Rwanda and that he was disgusted with the lack of progress. "Of course we'll refuse to hand them over to the tribunal. These men committed genocide here and were arrested because of our own efforts, not the tribunal's.(104)
D. The UN Office of Internal Oversight Services Report
On February 12, 1997, the UN Office of Internal Oversight Services (OIOS ) released a 33-page report criticizing the administration and management of the ICTR. Largely confirming the allegations that had been swirling for close to two years, the report offered the tribunal its best chance of radically changing the way it has operated and in so doing regaining the trust and cooperation of the Rwandese government, the people of Rwanda and the international community.
In frank, hard-hitting language rarely seen in UN documents, the OIOS found that "not a single administrative area of the registry in Arusha "functioned effectively."(105) It found there were no accounting or property management systems in place, line of authority were poorly defined, unqualified personnel occupied key positions, UN procurement rules were flouted and internal controls ineffective.
The OIOS also had harsh words for the prosecutor's office in Kigali. Serious leadership, administrative, personnel and operational weaknesses sapped morale and undermined effectiveness. The office lacked all types of material essential to investigating cases: vehicles, computers, phones, faxes, even the proverbial pens and paper. In citing the enduring absence of experienced senior criminal trial lawyers, the report observes: "It would seem axiomatic that the most important criminal trials since the Nuremberg trials would require a high level of expertise in criminal law and procedures and significant relevant experience."(106) The report lambastes the deputy prosecutor's lack of a prosecution strategy, reiterating earlier criticisms that investigations seem to be triggered by arrests of suspects outside Rwanda. The report quotes one staff lawyer who concluded: "We have a leadership void."
E. Reactions to the UN Report
In his first major management challenge, Secretary-General Kofi Annan asked for and received the resignation of both the registrar and the deputy prosecutor. Replacements were appointed and Judge Arbour continued to dedicate substantially more time than had her predecessor to the ICTR. The tribunal now has three trials underway and a fourth to start soon. It has a second chance to earn the trust and credibility it needs to fulfill its mission.
VII. SUMMARY OF THE TRIBUNAL'S WORK
The ICTR, after a slow start, has held numerous hearings in the first half of 1997. These have included confirming indictments, initial hearings for the accused to enter a plea, and actual trials with witnesses.
The ICTR's indictments clearly describe the charges and are provided to the accused and defense counsel promptly. The accused have had adequate time to prepare for trial. In fact, in some cases the tribunal has agreed to lengthy adjournments for medical reasons or to allow the accused to find or change lawyers. Lawyers have ready access to their clients.
Interpreters have assured that the accused and the witnesses are able to understand the proceedings at all times; all have been able to express themselves in the language of their choice. The tribunal has assured the decorum required in a court.
All of the accused have lawyers, although for part of his trial the court allowed Jean- Paul Akayesu to represent himself. These lawyers are either paid directly by the accused or are paid by the tribunal consistent with rules on appointment of counsel adopted in 1996.(107)
The tribunal has been slow to create an effective witness protection program, and its Witness Protection Unit did not function until early 1997. Belatedly, the tribunal adopted some measures to conceal the identity of witnesses and investigators in Rwanda took precautions such as not traveling to rural communes in easily identifiable tribunal vehicles. The security situation in Rwanda has deteriorated after the sudden and massive return in late 1996 of Rwandese who had fled to Zaire and Tanzania. This has hindered the tribunal's work, according to Prosecutor Louise Arbour, because it "creates enormous concerns in our office in respect to the security of our witnesses, to whom we no longer have the free access that we had before the return of the refugees."(108) The UN Human Rights Field Operation reported in late February 1997 that 54 genocide survivors or people linked to them had been killed in the first month and a half of the year. (109) An international conference of western donors to the tribunal held in Geneva in late May 1997 stressed the need for "beefing up witness protection."(110)
Another concern is the ability of the prosecution to continue investigations in Rwanda and for defense counsel to identify possible defense witnesses there. The tribunal's ultimate ability to guarantee fair trials partly depends on security conditions in Rwanda and close cooperation with the Rwandese authorities. Rwanda started its own genocide trials in national courts in December 1996, and the tribunal's work cannot be understood or assessed without considering these national trials.
VIII. RWANDA'S JUSTICE SYSTEM AND NATIONAL GENOCIDE TRIALS
The justice system in pre-genocide Rwanda—weak, dependent and corrupt—was virtually destroyed by the 1994 killings and the ensuing war.(111) Most judges, prosecutors and criminal investigators (inspecteurs de police judiciaire or IPJ) fled the country or were killed. Courts, records, all type of equipment and supplies were destroyed or stolen. The Ministry of Justice building had blown-out windows and smoldering case files, while telephones had been ripped out and typewriters and computers carried off. The devastation, both in personnel and property, was nearly total. The UN Human Rights Mission, in a June 1996 assessment of the justice system in Rwanda, noted that:
The 1994 genocide and ensuing destruction devastated the legal system and present a challenging array of problems. The Government of Rwanda needs to end impunity, compensate victims of the genocide, insure fair trials, provide humane conditions for detainees, and train and equip virtually an entire corps of judges, prosecutors, criminal investigators and prison guards and administrators.(112)
A. Overview of the Rwandese Justice System
Rwanda's justice system reflects its colonial history; it is based on the Belgian system, which in turn is largely based on the French Civil Law and the Napoleonic Codes. The lowest level courts are the 145 Cantonal Courts; next up the chain are the 12 First Instance Courts; finally there are four Courts of Appeal. Because of the overwhelming demands created by the genocide, the National Assembly passed a law in August 1996 creating special chambers within the First Instance Courts to try people accused of genocide. The Arusha Accords called for a reconfigured Supreme Court which now has five sections, including the Cour de Cassation and the Constitutional Court. The Constitutional Court has already struck down a law for failing to comply with the constitution.
Both prosecutors and judges are considered magistrats and were under the control of the Minister of Justice. This created great scope for executive interference. While the Minister of Justice retains overall responsibility for the justice system, the Arusha Accords required the creation of a High Judicial Council to oversee the nomination, appointment and work of sitting judges. This would presumably increase judicial independence. The High Judicial Council , comprised of 20 jurists, did not begin work until April 1996. Prosecutors, the court clerks and the judicial police inspectors continue to work directly under the ministry's supervision.
There are also military courts which have competence to try soldiers and, as a result of recent legislation, civilians and soldiers jointly in certain cases. A traditional system of justice known as gacaca covers land disputes, family matters and small commercial disagreements; its purpose is to resolve problems while promoting reconciliation.
B. Rehabilitating the Justice System
The Government of Rwanda faced a dire situation in the fall of 1994: everything was needed at once, the justice system was in tatters, the number of prisoners was growing, the genocide survivors were crying for justice, and the former government had destroyed what it could not carry away. The authorities, with important assistance from the international donor community, have over the last two and one-half years implemented numerous projects aimed at building a legal system.
1. Material assistance
The government started to refurbish courts, prosecutors' offices and the Ministry of Justice itself. "Holes in roofs were plugged, walls and floors repaired and painted, windows installed, water, electricity and telephone lines restored."(113) The Irish NGO Trocaire provided $10,000 to a "justice working group" in each prefecture. These groups, comprised of representatives of the First Instance Court, the prosecutor, the national police, the head of the prefecture and HRFOR, decided on how to spend the money to meet local needs.
Prosecutors and IPJ's needed transport to investigate crimes and interview witnesses. The Ministry of Justice did not have a single vehicle after the genocide. A variety of states, including Finland, the Netherlands, Spain, Switzerland and the U.K. provided funding for pick-up trucks and motorcycles and fuel, although vehicle maintenance has become a problem.
Law books had also been destroyed or stolen. The few remaining judges and prosecutors lacked copies of the penal code and code of criminal procedure. Even paper, pens, legal forms and chairs and desks were rare. Donors have since provided typewriters, copiers, office furniture, file folders, cameras, pens and paper. Legal forms for warrants and other proceedings have been printed and distributed. The Belgian NGO Citizens' Network, working closely with Rwandese lawyers, compiled basic domestic laws on arrest and detention which they distributed during training programs in thousands of tri-lingual copies (Kinyarwanda, French and English). Another tri-lingual handbook called "Prosecutions for the Crime of Genocide and Crimes Against Humanity" which covers international and Rwandese law was also distributed.
By the end of 1996, while still short of some necessities, the government had managed to provide most of its legal officers with a decent place to work and the bare minimum of the requisite equipment and furnishings. This is an enormous achievement given the extent of the destruction. An even bigger challenge lay in addressing the shortage of trained legal officers.
2. Recruiting and training legal personnel
The government has tried to harmonize rebuilding the judicial infrastructure with revitalizing the personnel who work within it. Here too the needs were overwhelming. A small fraction of judges, prosecutors and IPJ's remained after the genocide.
The government began an intensive recruiting drive in 1995. Since few people have had prior legal training, the government soon realized that it would have to appoint "non- jurists" to many posts that normally require legal training. During 1995 and 1996, approximately 700 people received training that varied from several weeks to several months to become prosecutors, judges, court clerks and secretaries. For example, the UN found that as of May 1996, only a small minority of the 258 judges and prosecutors then working had legal training.(114) Those selected to be judges and prosecutors have typically received four months training and the German government has funded the rehabilitation of the Ecole de la Magistrature.
Over 300 IPJ's have received three months training. Some were selected to become assistant prosecutors because of their excellent performance in the training session. Roughly one-half have been assigned to communes and one-half to work directly out of prosecutors' offices. Low salaries and poor working conditions have led to many IPJ resignations. Several IPJ's have been attacked and killed; others have gone into the private sector where salaries are substantially higher. This led HRFOR to conclude that "staffing levels for the justice system remained generally low, particularly with regard to parquets, or prosecution departments and inspectuers de police judiciaire (IPJ's) deployed in the communes."(115)
While there has been important progress in strengthening the justice system's human resources, the shortfall in quantity and quality remains great. The ministry estimates that it needs 694 judges, yet only 448 are in place; this is still many fewer than the 800 judges who worked before 1994 and the caseload is now astonishingly high.(116) Moreover, few of the new judges are jurists. "Only 20 or so, or less than one fourth, had received adequate legal training; over 75% of the judges were trained on the job."(117) Many grew up outside Rwanda and returned following the RPF's victory, while others are genocide survivors. And the first order of business for these hastily recruited and trained judges is trying one of humanity's most serious crimes, one with tremendously complicated facts and legal issues: the 1994 genocide.
C. The Law on Prosecuting Genocide and Crimes Against Humanity
The summer of 1996 saw an emotional debate in the Rwandese Transitional National Assembly on a draft law on prosecuting genocide and crimes against humanity.(118) Rwanda's penal code did not expressly punish genocide or crimes against humanity, although Rwanda had ratified the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide. The law's preamble states that "as a consequence, the prosecutions must be based on the Penal Code" and that this creates an "exceptional situation in the country [which] requires the adoption of specially adapted measures to satisfy the need for justice of the people of Rwanda."(119)
The most controversial "specially adapted measure" in the law allows for a limited form of plea-bargaining. As in most civil law legal systems, plea-bargaining until very recently has been seen as a uniquely Anglo-Saxon, common law invention. Most traditional civil law systems did not allow plea-bargaining and some viewed is as distasteful if not immoral. For many genocide survivors and their representatives in the National Assembly, any form of marchandage (the French term unfortunately chosen as a translation of "plea- bargaining") with people guilty of genocide was not acceptable. Finally, on August 9, 1996, the Transitional National Assembly passed the law; the Constitutional Court approved it and it took effect on September 1.
The debate over the genocide law reflects a fundamental dilemma facing the Rwandese authorities. Even if Rwanda had the most efficient, well-equipped justice system in the world with highly trained and skilled judges, prosecutors and hundreds of defense lawyers, the sheer magnitude of the genocide and violence of 1994 would overwhelm the system. As HRFOR noted, "the genocide has confronted Rwanda with the fact that the number of its citizens who committed murder and criminal acts of the greatest gravity is without parallel in the experience of other countries."(120) A legal system as weak as Rwanda's cannot hope to cope with the staggering number of people who participated in the genocide.
The genocide law attempts to face this reality head on. The law establishes degrees of culpability based on several factors and then offers graduated sentences which can be reduced, in many cases, if the accused admits guilt. The government's goals are three-fold: (1) to reduce the number of trials; (2) to encourage people to provide incriminating information to facilitate other prosecutions or encourage others to admit guilt; and (3) to enhance the reconciliation process through public admissions of guilt.
Article 2 of the law establishes four categories based on the accused's acts during the period covered. Category 1 encompasses those deemed most culpable. They are defined as the planners, organizers, instigators, supervisors and leaders of the genocide; people in positions of authority at levels from the national to the cell (lowest administrative unit), or in political parties, the army, religious groups or in a militia; "notorious murderers"; and persons who committed sexual torture. This category seeks to demarcate those who planned, instigated, ordered and incited genocide from positions of authority and trust. Category 1 offenders cannot have their sentence reduced even if they admit guilt before trial. Category 1 offenders receive the death penalty.
Category 2 is comprised of persons who are "the perpetrators or accomplices of intentional homicide" or serious assaults resulting in death. This category covers a potentially huge number, the "foot soldiers" of the genocide. Articles 15 and 16 of the law state that if a category 2 offender confesses and pleads guilty before prosecution(121), the sentence will be between seven and 11 years in prison. If the confession and plea come after the prosecution, the sentence will be between 12 and 15 years. If the category 2 offender refuses to confess or plea bargain and is found guilty, the sentence is life imprisonment instead of the death penalty which might otherwise apply.
Category 3 comprises persons who committed serious assaults. If they confess and enter a plea before prosecution, the sentence is one-third of what would normally be given and if the prosecution has already started, one-half of the normal sentence.
Category 4 covers crimes against property. Penalties shall only be civil damages reached by agreement between the parties.
Article 6 describes the confession procedure and requires a detailed description of the offenses covered by the law (date, time, location, names of victims and witnesses, information on accomplices, conspirators, an apology and an offer to plead guilty).
The Rwandese government, pursuant to Article 9 of the Genocide Law, published a list of category 1 offenders in November 1996 that included 1,946 names. People confessing to acts after the list's publication, even if the acts would place them in category 1, will be placed in category 2.
The Genocide Law also created Specialized Chambers with exclusive jurisdiction over genocide and crimes against humanity. These Chambers are part of the First Instance Courts and the military courts. As with almost all Rwandese trial courts, each panel in a Specialized Chamber has three judges; a Chamber may have more than one panel sitting simultaneously.
Article 36 provides that the accused have the same right to defense as others facing criminal charges but not at government expense. If convicted, the accused has 15 days to appeal; an initial judgment can be overturned only on questions of law or "flagrant errors of fact" (Art. 24)
The government unleashed a broad public education campaign at the time the Genocide Law was adopted to explain how the law would work. Audiences include government officials, the general public, judicial and prison personnel and the detainees. Yet as of June 1997, it appears that few defendants have used the law and there is great misunderstanding within the judiciary about how the law should be applied.(122)
Several cogent criticisms of the Genocide Law may be made.(123) First, limiting the scope of review to questions of law and flagrant errors of fact creates only a limited review which violates Article 14(5) of the ICCPR which states that "Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law."(124) The mandatory death sentence for category 1 defendants robs them of any chance to have mitigating factors considered in their sentencing. This mechanical application of the law violates Article 14 and is inconsistent with the practice of both tribunals which allow mitigating factors to be considered.
Also, a defendant may not seek appellate review to determine whether confessions were not obtained by torture or other forms of duress. As confessions play an integral role in the law's plea-bargaining scheme, the potential for abuse is great. If the trial court refuses to investigate such claims, which has already happened in several cases, the Court of Appeal will not take up the matter.
Finally, criminal liability must be determined by an individual defendant's acts, not on his or her membership in a defined class. Thus the effort to distinguish between degrees of culpability for the genocide by the defendant's position in government or society must never obscure the necessity of proving that the defendant actually committed crimes punishable by the law.
D. The Law on Arrest and Pre-Trial Detention
Law 9/96, adopted on September 8, 1996, retroactively legalizes arrests and extensive pre-trial detention periods starting on April 6, 1994, the day the genocide began. The law extends the time allowed for every stage of arrest and pre-trial detention from the period prescribed in the Code of Criminal Procedure. For example, the Code sets time limits for drawing up an arrest report, issuing an arrest warrant and a pre-trial detention order. The law also bans appeals from adverse decisions, taking away a right that otherwise exists in Rwandese Criminal Procedure.
The new law extends the periods based on three categories. First, for those already in detention when the law was enacted (about 80,000 people in September 1996), the authorities have 18 months (until the end of 1997) to compile an arrest report and issue an arrest warrant. The validity of a pre-trial detention order is extended from 30 days to six months and the right to appeal is abolished.
For people in the second category, those arrested between the publication of the law and the end of 1997 (currently about 30,000 people and virtually sure to increase), the arrest report must be written in one month (extended from 48 hours); the prosecutor has four months to issue an arrest warrant; pre-trial detention is valid for six months (the code provides for 30 days). After January 1998 all deadlines will be shortened, but will still not be as short as the Code of Criminal Procedure requires and the accused's right to appeal any adverse decision at any stage will also continue to be eliminated.
The government relies on the derogation provision in the ICCPR to justify this curtailment of rights guaranteed elsewhere in the Covenant, especially the provisions of Article 9, under which: "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer. . .and shall be entitled to trial within a reasonable time or to release."
Article 4 of the Covenant states that: "In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed" a state may suspend some of the rights found in the Covenant, including Article 9. Any suspensions must "be strictly required by the exigencies of the situation" and not "inconsistent with their other obligations under international law."
The government's reliance on Article 4 is misplaced in the current situation. While such a suspension of fundamental liberties may have been warranted for a period in 1994, 1995 or even up to early 1996, when the law was passed in September 1996 Rwanda was not "experiencing a public emergency which threatens the life of the nation." Rwanda's judiciary was hardly functioning and the prisons and detention centers were overflowing right after the war ended, but this does not justify extending the time now for pre-trial detentions and retroactively legalizing arrests that occurred more than two years ago. This response to an "emergency" is not strictly tailored. The law justifies the deprivation of liberty and suspends the right to a hearing on the legality of the detention without delay, the right to a trial without undue delay and the state's obligation not to treat people differently who are charged with the same acts. The "emergency' stems from the horrendous prison overcrowding which must be resolved in a way that does not exacerbate human rights violations in Rwanda.
E. Prisons
No criminal justice issue has generated more controversy than the state of Rwanda's prisons and detention centers. Newspapers all over the world have carried pictures of people crammed into cells, some with three tiers of sleeping mats jerryrigged right up to the ceiling. The overcrowding and resulting inhumane conditions are one of Rwanda's most pressing human rights problems.
The overcrowding stems from the nature of the 1994 genocide and the attendant destruction of the judicial system and criminal investigative capacity. The quick and massive killing of so many people depended on the participation, active and passive, of a huge number of Rwandese. With the disappearance of police investigators and prosecutors following the RPF's victory in the fall of 1994, the military assumed the role of policing. The soldiers, who had no training or knowledge of the law or how to investigate crimes, arrested people, sometimes on the basis of a single denunciation. The prisons started to fill up rapidly.
Before the genocide, Rwanda had 20 prisons and several "Centers of Reeducation and Production." The official estimate of capacity in these prisons was between 13,000 and 15,000. In addition to prisons, there are approximately 182 communal detention centers similar to a police lock-up called a cachot; even smaller detention centers, called amigos exist in many communes. Detainees are sometimes kept in Gendarmerie brigade centers and on military bases; no international organization has access to these detention centers. Cachots and amigos are often merely rooms with a door that can be locked; they are small and were never intended to hold people for very long. Conditions are horrendous and there is no regular provision of food, water or medicine. While reports of torture and beatings have declined for the central prisons, mistreatment is still frequent in the communal detention centers. Few prisons or cachots emerged unscathed from the genocide and war in a state to hold prisoners, yet the numbers of prisoners grew steadily during 1995-96 and keep increasing.
Women are usually detained in separate sections from men; some have nursing infants. Minors are often detained with adults. The Gitigata Reeducation and Production Center holds 197 minors (all boys) between the ages of 7-17, who were initially arrested for participating in the genocide. In August 1996 the government recognized that they were not criminally responsible for genocide because of their age. The Centre was transferred from the Ministry of Justice to the Ministry of Labor and Social Affairs, which is responsible for educating and training the 197 minors.
The combination of an increase in detainees with the inability of the prisons to provide minimally acceptable conditions led to a shockingly high prison mortality rate in 1995. In the worst prison, Gitarama, there were eight to nine deaths per day between February and May 1995 and a total of 867 prisoners died in Gitarama from December 1994 to June 1995.(125) Most died from dysentery, tuberculosis, malaria and other infectious diseases. Others had to have lower limbs amputated because of edema.
The government created an inter-ministerial commission on prisons in May 1995 to identify new sites for prisons and to build additions to existing prisons. The ICRC participated in the commission's early stage to help recommend ways to relieve prison overcrowding. Warehouses were converted into prisons in several cities, extensions built to existing prisons in Nyanza, Kigali, Butare, Gitarama and Cyangugu and a new prison built at Nsinda.(126) Yet the rate of arrests has held steady with substantial upward spikes in the summer of 1996 during a census and more recently with the return of people from the camps in Zaire and Tanzania. As fast as new prisons were built or extensions completed, they quickly filled. While the increased prison capacity has reduced the extreme overcrowding and high mortality rates in central prisons, the "overcrowding remains by any standards acute."(127) The UN Special Rapporteur on Rwanda noted that "Rwandan prisons and detention centers are all more or less equally overcrowded. The difference lies not in the type, but in the degree, of overcrowding."(128)
The situation in the cachots remains dire. No official figures exist for the capacity of detention centers. Observers from the HRFOR regularly visit and consistently report gross overcrowding and inhumane conditions. In May 1996, the observers found that 42 communes held more than 200 detainees each and that one commune in Kigali Rurale prefecture held 700; it is no surprise that also in May, 79 detainees died from malaria, diarrhea and respiratory diseases, while 23 died in a detention center in Kibuye prefecture, six from suffocation and 17 who panicked and fought over lack of air.(129) A similar incident occurred in October 1996, when 16 detainees died after a night of panic from extreme overcrowding in the cachot in Gitesi commune, Kibuye prefecture. At least 120 detainees were held in a cell measuring 20 square meters (six people per square meter) that had three small windows and a corrugated iron roof; panic erupted around 11:00 p.m. and survivors stated that there was insufficient fresh air.(130)
The rapid influx of returnees from Zaire and Tanzania complicated an already grave situation. As of January 15, 1997, the UN human rights mission reported that over 7,600 returnees had been arrested, greatly exacerbating problems of overcrowding in certain local detention centers; most arrests had been made by authorities with no legal competence to make an arrest.(131) In some areas local officials have reacted by releasing detainees without case files or ordering that only people who fall into category 1 of the Genocide Law should be arrested.(132) Releases of people charged with common crime have also become more common.
Recent figures indicate that as of May 1997 at least 108,000 detainees are held in central prisons and cachots with an unknown number in military custody. Of the total, about 42,000 are held in communal detention centers. Surveys conducted by the UN human rights field officers during 1996-97 indicate that most detainees have no case files. In many prefectures unauthorized government officials make arrests. Arrest warrants are rare, supporting documents and investigation reports rarer; many detainees in some communes do not know the reason for their arrest.(133) Prison directors in Ruhengeri, Gisenyi and Byumba started to demand arrest warrants before admitting new detainees from the communal detention centers.(134) This has alleviated overcrowding in these prisons and has encouraged prosecutors and IPJ's to conduct investigations but has also meant continued overcrowding in communal detention centers as arrests continue.
RPA soldiers guard prisons and detention centers. They have received little or no training to perform this work. Soldiers usually kill anyone who tries to escape; the legality of using deadly force in such cases is dubious. Five detainees were killed attempting to escape in August 1996 and 13 in July. The government apparently took no action against the soldiers in these cases. In contrast, an army guard who shot and killed 10 people attempting to escape from a detention center in Maraba, Butare Prefecture on May 9, 1997 was arrested.(135)
The government created Commissions de Triage (screening commissions) in March 1995 for each prefecture in response to the prison overcrowding and the absence of a functioning legal system. These commissions were supposed to review detainee case files rapidly and identify individuals eligible for provisional release. Representatives from the prosecutor's office, the military, the Gendarmerie and the Prime Minister's intelligence service comprised the commission. Later, commissions were formed at the communal level and some "technical" sub-commissions also were named.
The screening commissions were entirely extra-legal; Rwandese law has no provisions to establish such commissions. Their working methods and the criteria used to assess eligibility for release were unclear. Few commissions worked in 1995-96; the number of releases was minuscule compared to new arrests. Their overall impact has been minimal; the Director General of the Ministry of Justice recently admitted that the commissions will be abolished.(136)
The quandary facing the Rwandese authorities is how to distinguish between cases where incriminating evidence exists justifying ongoing detention and those cases lacking such evidence among the more than 100,000 in detention. To end impunity, those responsible must be held accountable, yet to avoid laying the groundwork for another round of violence, the process to apportion guilt and innocence must be fair and not seen as retributive or "victors' justice." Holding trials for 100,000 is clearly impossible. Gerard Gahima, Deputy Justice Minister, admits that "If we had to try all the suspects, it would take thousands of years."(137) But Rwanda must insure that the trials it does hold are fair, and promote justice. This is as important for the genocide survivors as it is for the innocent.
F. Genocide Trials in Rwanda's Courts
1. Overview of Some of the Early Trials
On December 27, 1996, two and one-half years after the start of the 1994 genocide, a court in Kibungo opened the first trial for genocide and crimes against humanity committed in Rwanda. Deogratias Bizimana, a former medical assistant at Kibungo Hospital, and Egide Gatanzani, a former local bureaucrat, faced charges under the Genocide Law in the Special Chamber of the Kibungo First Instance Court. The accused had no lawyers, nor did it appear that they had been informed of their right to counsel. They also did not have copies of their case files at the hearing and had to remember their contents based on a brief reading during the short time they had access to the files. Bizimana stated that he had only seen the file the day before the trial.(138) Bizamana's request for an adjournment so that he could study the charges more carefully was denied while his co-defendant said he could not follow the proceedings.
Neither accused presented defense witnesses and again it is not clear if they knew they could have done so.(139) The prosecution witnesses did not provide oral testimony so cross- examination was impossible, although the defendants could respond to allegations and questions from the trial panel.
The defendants claimed that they had been tortured during interrogation and had been forced to sign their statements. The judges put the burden of proof on the defendants to show that they had been tortured and did not seriously attempt to determine whether their allegations of torture were true. The trial lasted only four hours. Bizimana asked to speak in French but the court refused—even though French is one of Rwanda's three official languages. There were also reports that courtroom decorum was lacking; those attending reportedly booed the defendants and cheered the prosecution.(140) The court found both Bizimana and Gatanazi guilty on January 3, 1997 and sentenced them to death. They appealed the judgment within the 15 days allowed by the Genocide Law.
The next trial began on December 31 in Byumba, where a former teacher, François Bizumutima, who was also the Byumba president of the Hutu extremist group Comité de la Défence de la République (Committee for the Defense of the Republic), was charged with genocide. It was alleged that he had incited participation in massacres. Bizumutima appears on the November 30, 1996 government list of category 1 offenders. He did not have a lawyer and the court granted his request for an adjournment so that he could find one. The trial resumed on January 9. Bizumutima still had no lawyer but stated he was prepared to proceed without counsel. He had submitted a request in writing that several witnesses appear on his behalf but the court did not fulfill his request and no defense witnesses appeared. The court convicted him and sentenced Bizumutima to death on January 17.(141)
The trial of Froduald Karamira, a category 1 defendant and widely believed to have played a leading role in the genocide, began in Kigali on January 14. Karamira was represented by a lawyer from Benin provided by a Belgian NGO Avocats sans Frontieres. The court granted his lawyer's request for an adjournment to study the case file and prepare a defense. Although the judges ordered those jammed into the courtroom not to jeer, clap or laugh, those attending ignored the order.(142) The trial lasted three days and on February 14, 1997, Karamira was sentenced to death. He was also ordered to pay 1.1 billion Rwandan francs in civil damages. He appealed the sentence. Of all the cases held so far, Karamira's provided the most substantive due process protections.
Other cases proceeded from January-March in various cities, including Gitarama, Gikongoro, Butare, Kigali and Byumba. As of April 30 1997, judgments have been entered for 56 defendants in 22 trials. Courts have convicted and sentenced to death 35 people and two people have had their death sentences upheld on appeal. 14 people have been sentenced to life imprisonment, three received prison sentences from one to five years and four have been acquitted.(143) In May, the government announced it had adopted an order governing the details of executions; these will not be public and may be neither filmed nor photographed.(144) One woman, Virginie Mukankusi, was convicted and sentenced to death in Gitarama on February 28.(145) Jérémie Gatorano attempted to use the plea-bargaining feature of the Genocide Law to obtain a reduced sentence, but the court found that he had not identified accomplices to the murder of two children and he received a life sentence.(146)
2. Flaws in the Trials
Given the utter devastation of Rwanda's justice system, the scale of the crimes committed and the slow pace early on of international assistance, it is a significant achievement that trials are taking place. The government of Rwanda should be commended for its effort to end impunity and to hold accountable those responsible for genocide and crimes against humanity. Yet the very gravity of the crimes requires proceedings that rigorously uphold international and national guarantees of fair trial. It is a disservice to the victims and survivors to do less. The trials held so far contain shortcomings that undermine the effort to render justice, but some improvements have occurred recently, including more prosecution witnesses appearing in court to testify, greater access to and improved conditions for the accused to study their case files, greater access to lawyers and more frequent allowances for reasonable requests for adjournments.(147) This shows that even with enormous logistical weaknesses and shortages of trained personnel, Rwanda can provide trials that meet or approach minimum guarantees of fairness and due process.
a. Defense counsel
The biggest obstacle to fair trials so far is the lack of defense counsel. Rwanda has only 16 practicing lawyers, who mostly refuse to represent defendants in genocide trials.(148) The government anticipated this problem and in early 1996 created a working group comprised of representatives from the Ministry of Justice, the international donors and UN agencies (including the UN human rights mission) to identify solutions. The working group met regularly and suggested several possibilities, including bringing in foreign lawyers and training recent graduates of the law faculty at the National University in Butare in criminal defense. Providing pamphlets to the accused on the rights of a defendant and how to conduct a defense in the absence of a lawyer also was raised. Lawyers are also needed to represent civil claimants who seek damages from the defendant; under Rwandese law civil claimants may participate in criminal proceedings. The government was open to various suggestions as long as it did not have to pay for legal defense.
Some government officials argue that in pre-genocide Rwanda criminal defendants rarely had lawyers and that the fair trial standards demanded now by the international community are themselves unfair given the current situation in Rwanda. This argument simply does not hold water. Cases involving charges of genocide and crimes against humanity demand a higher standard and the government cannot use the lax standard of its predecessors as an excuse. To their credit, the current Rwandese authorities would never accept being held to the standards of the previous regime in any other sphere and should not do so when it comes to providing fair trials.
Where defendants face the death penalty, the court must guarantee the highest standards of fairness. Rwandese law (Article 14 of the Constitution), Article 14 of the ICCPR and the UN Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty (Article 4) all guarantee the right to defense. As Amnesty International noted: "In cases where the accused have been allowed a defense lawyer and where sufficient time has been allowed for the lawyer to prepare the defense, trials were characterized by greater respect for proper procedures."(149)
In most of the trials to date the accused were not represented by lawyers. Some requested lawyers but were refused; others may not have been aware they had the right to legal representation. Having a lawyer and adequate time to consult the case file and prepare meant that the other elements of a fair trial are more likely to be observed. This includes effective responses to the charges, more thorough cross-examination of witnesses and compiling exculpatory evidence. The UN Human Rights Mission has urged the government to implement quickly a proposal by the Rwandan and Foreign Lawyers Initiative to train Rwandan and foreign legal counsel to represent defendants in every prefecture.(150) This proposal, with an estimated cost of $1,750,000, would train recent law graduates and Rwandese lawyers to represent both criminal defendants and civil claimants. An effort to train Rwandese defense lawyers must begin soon. Rwanda cannot depend on the international community, acting through NGO's such as Avocats sans Frontières, to continue to provide defense counsel, even for the nearly 2,000 category 1 defendants let alone even a small portion of the more than 100,000 people in detention, should the government decide to try them.
The government can improve the quality of the trials by adopting several measures that are easy and inexpensive to implement. Reasonable requests for adjournments should be granted. Defendants and their lawyers should have early access to case files to provide adequate time to prepare a defense.(151) Requests to use one of Rwanda's three national languages should automatically be granted. Judges should strictly monitor courtroom behavior and quickly expel anyone who violates basic rules of decorum. Information should be provided to all detainees about their rights to a fair trial; judges should take time at the beginning of a trial to explain carefully to the defendant that s/he has a right to counsel, to call witnesses, to cross-examine prosecution witnesses and to introduce exculpatory evidence. Judges should order immediate investigations into allegations made by any defendant of torture or mistreatment, especially if any confessions or statements by the defendant used as evidence by the prosecution were allegedly coerced. Statements or confessions made under duress or coercion should not be admitted into evidence by the court.
Given the justifiable anger following the genocide, the population at large may not understand why it is so important that people accused of such grave crimes merit certain protections like legal representation. A massive public education campaign, explaining the importance of fair and open trials is essential. One of the best campaigns has already happened. The trial of Froduald Karimara was broadcast live on Radio Rwanda. Huge crowds gathered outside the courtroom. His lawyer conducted a strong defense. Karimara's trial could prove pivotal in helping Rwandese understand that the presumption of innocence, the right to confront witnesses and the right to have a lawyer are integral to finding the truth, ending impunity and thus enhancing reconciliation. Another reason for optimism is the population's reaction to the trials where the defendants were found not guilty. To date, the judges, defendants or others participating in these trials have not suffered any reprisals, which shows that the population will accept acquittals as long as the trial is fair.
b. Threats and intimidation of jurists
Some jurists who have attempted to apply the law fairly have suffered from threats, arrest and worse. Two prosecutors have been arrested and charged with genocide. Former Kigali deputy prosecutor Silas Munyiagishali was arrested in February 1996. He had previously been cleared of allegations of participating in the genocide.(152) He had criticized the screening commission shortly before his arrest. The original reason given for his arrest was mismanagement and corruption; some suspect that the real reason may have been his refusal to arrest people on genocide charges when there was little or no supporting evidence.(153)
Célestin Kayinbanda was arrested on May 2, 1996 in Butare, where he was the acting prosecutor.(154) Charged with genocide and crimes against humanity, Kayibanda had publicly criticized interference by the military, the local mayors (bourgmestres) and other local officials in the administration of justice. In particular, mayors, their counselors and others with no legal competence to make arrests were in fact making many arrests in the district, often on the merest denunciation and without any investigation. Mr. Kayibanda and several Judicial Police Inspectors also had disagreements with the prefecture and several communal mayors over their respective responsibilities and the functioning of the screening commission.
Prosecutor Fidèle Makombe, the chief prosecutor in Kibuye, was dismissed from his post, beaten by an army officer and forced to flee to Kigali in May 1996.(155) The prosecutor had a series of disagreements with the Préfet, the senior representative of the executive branch in the prefecture. The prosecutor charged that the Préfet wanted him to arrest certain people for having participated in the genocide but the prosecutor refused to make any arrests until his office could investigate. Mr. Makombe then gave an interview to Radio France Internationale, describing his differences with the Préfet and the beating. He was suspended from his post on May 10, 1996.
Innocent Murengezi, one of the few Rwandese lawyers willing to represent the accused and civil claimants in genocide trials, disappeared on January 30; there were reports that he had been arrested but his whereabouts remain unknown.(156)
c. Military trials
In a trial largely overlooked by the international media, Lt. Col. Fred Ibingira of the RPA was charged with failing to prevent the massacre of Hutu refugees in the displaced persons camp in Kibeho in April 1995. His court-martial began in December 1996, just days before the first genocide trial. Represented by a military lawyer, who requested more time to prepare a defense, Ibingira was found guilty as charged in February and sentenced to 18 months in prison with credit for time already served. Several other soldiers have been tried for killing civilians and there have been reports that some were executed following trials in the military courts.(157)
HRFOR observers report that members of the RPA have executed civilians following a form of public "hearing" since the return of Rwandese from the camps in Zaire and Tanzania. For example, a returnee from Zaire who was accused of killing a genocide survivor was executed by RPA soldiers following a "public meeting" on December 21, 1996 in Gikongoro prefecture, organized by senior army officers and civilian officials.(158) The government should prosecute soldiers and civilian officials for these violations of the right to life and the right to a fair trial.
d. Summary
Rwandese authorities have characterized criticisms of their trials as "biased and uninformed" and have stated that more progress could have been made in building an independent judiciary if international resources had not been "squandered" on the tribunal.(159) While criticism of the tribunal's slow start and inefficient management during its first two years is warranted, Rwanda's attempt to use the tribunal as a scapegoat for its own slow pace of judicial reform is not. Yet such criticism underscores the complex relationship between trials in Rwanda and the tribunal and the necessity of improving the administration and management of the tribunal if it is to be seen as a legitimate complement to national prosecutions, and if it is to establish the good working relations with the government of Rwanda which are important to its prospects of success.
Many countries emerging from conflict and oppression struggle to achieve reconciliation and justice. In Rwanda, as in most cases, reconciliation is impossible without justice. The people of Rwanda have two fora to seek justice and they are mutually dependent. But the ICTR carries a special burden for two reasons. First, the UN and the international community failed Rwanda at its moment of greatest crisis. The ICTR, as a creation of the UN and its member-states, can never repair the damage of the earlier failing, but it can help to insure that by ending impunity it can help prevent another genocide. Second, the ICTR has the potential to try those believed to have been the "intellectual authors" of the genocide because they are precisely the people who had the means and the contacts to escape from Rwanda.
Fair and public trials of those deemed to have been the most guilty could have a liberating effect inside Rwanda. If there are fair trials that lead to convictions, the authorities in Rwanda might become more flexible, the people more convinced that the most responsible will pay a price, and this in turn might lead to measured releases from the horrendous overcrowding in Rwandese detention centers. As matters stand now, the 108,000 detainees are virtual hostages to the ICTR's failure to deliver justice.
The government of Rwanda must dignify the gravity of the charges and the incomprehensible suffering of the genocide survivors by assuring that its trials meet national and international standards of due process. Political will and strong leadership are required because difficult choices loom. The government simply cannot try more than 100,000 people and will have to distinguish between those who must be tried, those who should be provisionally released, and those to be unconditionally released.
The worst-case scenario would be if the ICTR and the trials in Rwanda failed. As Rony Brauman, the former head of Médecins sans Frontières wrote: "Could anyone imagine the situation where the criminals who fled enjoy impunity while the others receive expedited justice? A parody of a trial or the absence of any process will only revive hatred and fear in a country where every family has a militia member, a soldier or a victim."(160)
The ICTR and the government of Rwanda must insure that the opposite happens: that the most culpable outside Rwanda are brought to justice and those inside Rwanda, whose
government must continue to receive substantial international assistance to build its justice system, also are brought to justice in trials that are fair. Otherwise, the international community will once again have failed the people of Rwanda with consequences that no one can say were unforeseen.
In creating the ICTR, the UN assumed responsibility for its effective operation. Thus all member states are responsible for insuring that the tribunal has the resources and political support necessary to bring to justice those responsible for international crimes with the tribunal's jurisdiction.
Based on obligations under both Rwandese law and international human rights law ratified by Rwanda, the government should insure that the follow measures are implemented:
Since 1978, the Lawyers Committee for Human Rights has worked to protect and promote fundamental human rights. Its work is impartial, holding each government to the standards affirmed in the International Bill of Human Rights, including
The Committee conducts fact-finding missions and publishes reports which serve as a starting point for sustained follow-up work within three areas: with locally-based human rights lawyers and activists; with policymakers involved in formulating U.S. foreign policy; and with intergovernmental organizations such as the United Nations, the Organization of American States, the Organization of African Unity and the World Bank.
The Committee's Refugee Project seeks to provide legal protection for refugees including the right to dignified treatment and a permanent home. It provides legal representation, without charge, to indigent refugees in the United States in flight from political persecution. With the assistance of hundreds of volunteer attorneys, the Project's staff also undertakes broader efforts — including participation in lawsuits of potential national significance — to protect the right to seek political asylum as guaranteed by U.S. and international law.
Endnotes
(1)Security Council Resolution 955 (1994), S/RES/955 (1994), (November 8,
1994). The official name is 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 Neighboring States between 1 January 1994 and 31 December 1994.
(2)Id.
(3)This paper will not attempt to describe in full the 1994
genocide. There are many excellent studies already available. This account
draws heavily on two of them: Gerard Prunier, The Rwanda Crisis: History of
a Genocide (Columbia Univ. Press: 1995); and Fergal Keane's Season of
Blood: A Rwandan Journal (Viking: 1995).
(4)Philip Gourevitch, "Letter
from Rwanda: After the Genocide,"
The New Yorker , 18 December, 1995 at 78-94.
(5)Some historians and
anthropologists specializing in the Great Lakes region dispute the notion that
Hutus and Tutsis constitute separate ethnic groups; this question lies outside
the purview of this paper, however, no discussion of Rwanda can ignore the
reality that divisions between the Hutus and Tutsis, however spurious the basis,
have helped to cause genocide and continue to undermine peace and stability in
the entire region.
(6)For a comprehensive analysis of the tribunal for
the Former Yugoslavia,
see Lawyers Committee for Human Rights, "Prosecuting War Crimes in
the Former Yugoslavia," (New York: May 1995), [hereinafter Prosecuting
War Crimes in the Former Yugoslavia]
(7)Letter Dated 29 July, 1994 from
the Secretary-General Addressed to the President of the Security Council,
S/1994/906, (29 July 1994) at para.4.
(8)See Letter Dated 1 October
1994 from the Secretary-General Addressed to the President of the Security
Council, S/1994/1125, transmitting the Commission of Experts' Preliminary Report
(1 October, 1994).
(9)Commission on Human Rights, resolution S-3/1 (May 25,
1994).
(10)"Report on the situation of human rights in Rwanda,"
UN Doc. E/CN.4/1995/7 (28 June 1994); and "Report on the situation of human
rights in Rwanda," UN Doc. E/CN.4/1995/12 (12 Aug. 1994).
(11)See
UN Security Council Res. 955 , supra note 1, at 1-2.
(12)See LCHR, "Prosecuting War Crimes in the former Yugoslavia"
and "The International Criminal Tribunal for the Former Yugoslavia,"
(New York: May, 1995)
(13)Statute of the ICTR, Article 2.
(14)The
definition in the statute for the ICTFY is different; instead of the "widespread
and systematic attack" language it states: "when committed in armed
conflict, whether international or internal in character and directed against
any civilian population." "Report of the Secretary General Pursuant
to Paragraph 2 of Security Council Resolution 808," U.N. Doc
S/25704/(1993).
(15)Commentary to the statute of the tribunal for the Former
Yugoslavia omitted mentioning Protocol II. Under the ICTFY statute, persons may
be held individually responsible for grave breaches of the Geneva Conventions,
violations of the laws or customs of war, genocide and crimes against humanity.
(16)T. Meron, "The International Criminalization of Internal
Atrocities," 89 American Journal of International Law 554 at 559,
568 (July 1995).
(17)Luc Reydams, "Universal Jurisdiction over
Atrocities in Rwanda: Theory and Practice," European Journal of Crime,
Criminal Law and Criminal Justice at 26-30 (2:1996).
(18)The
Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72 of the International
Tribunal for the Former Yugoslavia, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, October 2, 1995, at 70-1, paras. 134 and
137.
(19)Filip Reyntjens, L'Afrique des Grands Lacs en Crise,
at 95, 184, 291 (Karthala: 1994). Reyntjens uses the term "massacres téléguides"
(remote-controlled massacres) to describe these events.
(20)For example,
despite erroneous initial press reports, Prime Minister Agathe Uwilingiyimana,
who was assassinated along with 10 Belgian peacekeepers on 7 April 1994, was a
Hutu. For a detailed description of the early days of the genocide, see
F. Reytjens, Rwanda: Trois Jours Qui Ont fait Basculer l'Histoire
(L'Harmattan, Paris :1995) at 65-69.
(21)For example, in the Remera section
of Kigali, not far from where the RPF soldiers were quartered, dozens of Hutu
intellectuals and their families were killed on April 7, the day after the
presidential plane was shot down. These killings seemed to be planned and
targetted, and one expert says that there were probably pre- existing lists
naming those to be killed. Id. at 62.
(22)Statute, Art. 6(1).
(23)Statute,
Art. 6(2).
(24)Statute, Art. 6(3).
(25)Statute, Art. 6(4).
(26)Statute,
Art. 8.
(27)See UN Security Council Res. 955, supra note 1.
(28)Rules
of Procedure and Evidence, International Criminal Tribunal for Rwanda,
ITR/3/Rev.1, (29 June 1995) [hereinafter Rules of Procedure and Evidence].
(29)See
"Prosecuting War Crimes in the Former Yugoslavia,"
supra note 6, at ix.
(30)It is also a problem for the ICTFY although
there it takes a different form. The tribunal in the Hague will most likely
have to assess whether national proceedings in the former Yugoslavia may try to
shield the accused or not be prosecuted vigorously.
(31)See infra
text at 59-66.
(32)Rule 3.
(33)Rule 53. It is sometimes necessary to
avoid publicizing an indictment otherwise the accused might flee or go into
hiding.
(34)Rule 58.
(35)Rule 59.
(36)Rule 61.
(37)Rule 68.
(38)Rule
79 provides for closed session, where the press and public may be excluded, for
reasons of "public order or morality," "safety, security or
non-disclosure of the identity of a victim or witness," and for "the
protection of the interests of justice."
(39)HRFOR, Status
Report/33/1/24 January, 1997, "Killings and other attacks against genocide
survivors and persons associated with them, January to December 1996", at
1.
(40)Id. at 5.
(41)See infra text at 34-36.
(42)Buckley,
"Witnesses of Genocide Targeted,", The Washington Post,
January 20, 1997 at A24.
(43)HRFOR, Status Report, "Killings and other
attacks against genocide survivors and persons associated with them from the
beginning of January to mid February 1997," (February 27 1997) at 2,
Http://193.135.156.15/html/menu2/5/rwanda/rwa_srep.htm.
(44)Id.
(45)Rule
89.
(46)Rule 95.
(47)Rule 92.
(48)Human Rights Watch, "Shattered
Lives: Sexual Violence During the Rwandan Genocide and its Aftermath," (New
York: September 1996).
(49)Rule 71.
(50)Except for the death penalty.
(51)Rule
101.
(52)Report of the Secretary-General, "Financing of the
International Criminal Tribunal for Rwanda," A/C.5/51/29, (15 Nov. 1996),
[hereinafter
Financing Report], at 7, para. 12.
(53)Rule 103.
(54)See
infra text at 55-59 for details on prison conditions in Rwanda.
(55)Rule
115.
(56)Statute, Art. 12(2).
(57)Judge Rakotomanana resigned from his
post, along with the former registrar, Andronico O. Adede, in late February 1997
following the publication of harshly critical report on the operations of the
prosecutor's office and the registry by the UN Office on Internal Oversight
Services earlier that month.
See infra text at 40-43
(58)Report of the International
Criminal Tribunal for Rwanda, A/51/399;S/1996/778, at 7, para.16.[hereinafter
First Annual Report].
(59)Address of Antonio Cassese, President of
the ICTFY, to the UN General Assembly, (Nov. 7, 1995).
(60)UN Security
Council Res. 978, S/RES/978, (27 February, 1995), para. 1.
(61)Amnesty International, "International Criminal Tribunals: Handbook
for Government Cooperation," AI Index IOR 40/07/96, Aug. 1996 [hereinafter
AI Handbook], at 1-2. The eleven countries are: Australia, Austria,
Belgium, Denmark, France, New Zealand, Norway, Sweden, Switzerland, the United
Kingdom and the United States. The four not needing to adopt legislation are
Republic of Korea, Russian Federation, Singapore and Venezuela. Id. at
42, fn.74 and 75.
(62)AP wire story, October 5, 1995. Moi also insisted
that it was essential to find out who was responsible for shooting down the
presidents' plane before beginning investigations on subsequent events.
(63)Crossette,
"Judge Urges World to Heed Rwanda Crisis," New York Times, 31
December, 1995 at A4.
(64)McKinley, "Rwanda War Crimes Tribunal
Indicts 2 Men in Jail in Zambia," The New York Times, February 20,
1996 at A9.
(65)"Around the World," The Washington Post,
November 12, 1996 at A14.
(66)UN Dept. of Humanitarian Affairs, IRIN
Emergency Update No. 162 on the Great Lakes, (May 1, 1997) at 3.
(67)AP
Wirestory, May 21, 1997.
(68)Agreement on Surrender of Persons,U.S. Int'l
Trib. Rwanda; National Defense Authorization Act Pub. L. No. 104-106, s. 1342,
110 Stat. 486 (January 24, 1995).
(69)See AI Handbook, supra
note 61, at 26-27.
(70)Statute, Art. 26
(71)See AI Handbook,
supra note 61, at 36.
(72)By contrast, only five of the 74 persons
indicted so far by the ICTFY have been charged with genocide. See Diane
Orentlicher, "Sexual Assault Issues Before the War Crimes Tribunal,"
Human Rights Brief, Center for Human Rights and Humanitarian Law,
American University, Washington College of Law, v.4, no. 2 (Winter 1997) at 9.
(73)See Financing Report, supra note 52, at 12, para. 26.
(74)The
prosecutor of the Tribunal v. Clement Kayishema, Case No. ICTR-95-11, as
quoted in Report on the situation of Human Rights in Rwanda, René
Degni-Ségui, UN Doc. E/CN.4/1997/61, January 20, 1997 [hereinafter Special
Rapporteur's Report on the Situation of Human Rights in Rwanda],at 13, para.
49.
(75)AP wire service, May 8, 1997.
(76)Reuter wire service, May 30,
1996.
(77)Reuter wire service, March 15, 1997.
(78)McGreal, "Blood-Filled
Eyes See Only Pain," The Manchester Guardian Weekly, October 6,
1996 at 5.
(79)AP wire service, February 17, 1996.
(80)UN Dept. of
Humanitarian Affairs, IRIN Emergency Update No. 191 on the Great Lakes, (June
10, 1997), at 3.
(81)AP, US & World, June 11, 1997.
(82)McKinley,
Jr., "Ex-Mayor on Trial, a Rwanda Town Remembers,"
The New York Times, September 27, 1996.
(83)Slosser, "Rwanda
Tribunal Turns the Corner," Tribunal, No. 8, May/June 1997, at 7.
(84)Reuter
wire service, January 19, 1997.
(85)Id.
(86)Reuter wire service, March 7, 1997.
(87)UN Dept. of Humanitarian Affairs, IRIN Emergency Update No. 182 on the Great Lakes, (May 27, 1997), at 2.
(88)The Arusha Accords, signed in Arusha, Tanzania on August 4, 1993, by the government and warring factions in Rwanda, carried a ceasefire agreement, precise provisions for the future transitional government in Rwanda and a protocol on the repatriation of refugees.
(89)See Reyntjens, supra note 19, at 22.
(90)Id. at 52-92.
(91)Id. at 57 (translated from French by LCHR).
(92)Id. at 58.
(93)UN Dept. of Humanitarian Affairs, IRIN Report on the Great Lakes, No. 105, (February 20, 1997).
(94)UN Dept. of Humanitarian Affairs, IRIN Report on the Great Lakes, No. 202, (June 27, 1997) at 2.
(95)Record of the Security Council 3453rd Meeting, (November 8, 1994), UN Doc. S/PV.3453, at 13-16.
(96)Financing of the International Criminal Tribunal for Rwanda, Report of the Advisory Committee on Administrative and Budgetary Questions, UN Doc. A/50/923, (April 9, 1996), at 2, para. 5.
(97)LCHR interview with Louise Arbour, New York, April 14, 1996.
(98)See AI Handbook, supra note 61, at 38, for a detailed analysis of ICTR funding.
(99)Financing for the International Criminal Tribunal, Report of the Secretary-General, UN Doc. A/C.5/51/29, (November 15, 1996), at para. 70.
(100)Neuffer, "Mismanagement and Red Tape Impede Tribunal, " The Boston Globe, December 11, 1996 at A1.
(101)Crossette, "U.N. Investigates War Crimes Tribunal Officials, " The New York Times, October 30, 1996.
(102)See Neuffer, supra note 100.
(103)AP wire story, January 19, 1997.
(104)Reuter wire service, April 11, 1996.
(105)Financing of the International Criminal Tribunal, Report of the Secretary-General on the Activities of the Office of Internal Oversight Services, UN Doc. A/51/789, (February 6, 1997) at 4.
(106)Id. at 23, para. 52.
(107)Financing the International Criminal Tribunal, UN Doc. A/C.5/51/29, (November 15, 1996) at 15, para. 38. "The registry implemented the Directive on the Assignment of Defense Counsel by establishing an official list of lawyers who could be assigned as counsel for the suspects or the accused. It has appointed an Advisory Panel and set the fees to be paid for the defense."
(108)AP wire story, February 22, 1997.
(109)See HRFOR Status Report, supra note 42.
(110)UN Dept. of Humanitarian Affairs, IRIN Emergency Update on the Great Lakes, No. 185, (May 30, 1997), at 2.
(111)For a concise summary of the weakness of the pre-1994 genocide justice system in Rwanda, see Bacre Waly Ndiaye, "Question of the Violation of Human Rights and Fundamental Freedoms in Any Part of the World, Extrajudicial, Summary or Arbitrary Executions", UN Doc. E/CN.4/1994/7/Add.1 (addendum "Report on Mission to Rwanda from April 8 to 17, 1993), (August 11, 1993), at 15, paras. 47-55.
(112)HRFOR Status Report, "The Administration of Justice in Post-Genocide Rwanda," June 1996, [hereinafter The Administration of Justice in Post-Genocide Rwanda] at 1, para. 1. This section relies heavily on this UN report.
(113)Id. At 4, para. 21.
(114)Id. at 5, para. 30. For statistics showing how many people have been trained, see Annex 2 of the UN report.
(115)HRFOR Status Report, "Update on the Human Rights Situation during 1996," HRFOR/ UPD/10/August 1996/E, at 2, para. 7.
(116)See Special Rapporteur's Report on the Situation of Human Rights in Rwanda, supra note 74, at 16, para. 69.
(117)Id. at 17, para. 70.
(118)The law's formal title is Organic Law 8/96 of Augus 30, 1996 on the Organization of Prosecutions for Offences Constituting the Crime of Genocide or Crimes Against Humanity Committee Since October 1, 1990.
(119)Id.
(120)See The Administration of Justice in Post-Genocide Rwanda, supra note 112, at 3, para.14.
(121)While the statutory language is not clear in either English or French, it appears that the guilty plea must be made before trial if the defendant is to benefit from the reduced sentence.
(122)For a description of the difficulties in convincing detainees to come forward and confess under the Genocide Law, see Alan Zarembo, "Judgment Day", Harper's Magazine, April 1997, at 68-80. See discussion of Gatorano case described infra at 49.
(123)Amnesty International, "Rwanda: Unfair Trials, Justice Denied," AI Index AFR 47/08/97, April 8, 1997 [hereinafter AI Rwanda Trials Report]. This report provides an excellent analysis of the national trials.
(124)ICCPR, Article 14(5).
(125)See The Administration of Justice in Post-Genocide Rwanda, supra note 112, at 7, para. 43.
(126)Id. at 8, para. 45.
(127)Id. at 8, para. 48.
(128)See Special Rapporteur's Report on the Situation of Human Rights in Rwanda, supra note 74, at 29, para. 123.
(129)HRFOR Status Report as at May 14, 1996, "Deaths of Detainees in Local Detention Centers, Kivumu Commune, Kibuye Prefecture," HRFOR/STRPT/14/1/14 May 1996/E.
(130)HRFOR Status Report as at October 30, 1996, "Deaths of 16 Detainees in a Local Detention Centre, Gitesi Commune, Kibuye Prefecture on October 22-23, 1996," HRFOR/STRPT/31/30 October 1996/E.
(131)HRFOR Status Report as at January 28, 1997, "Human Rights Incidents Involving Recent Returnees from Zaire and Tanzania," HRFOR/STRPT/39/2/28 January 1997/E, at 2.
(132)HRFOR Status Report as of January 6, 1997, "Arrival and Reception of Rwanda Returnees from Tanzania during December 1996", Http://193.135.156.15/html/menu2/5 /rwanda /rwa_srep.htm.
(133)HRFOR Status Report, "Update on Human Rights Situation in August 1996," HRFOR/UPD/10/August 1996/E, at 9, para. 42.
(134)HRFOR Status Report, "Update on Human Rights Situation in June 1996," HFROR/UPD/8/June 1996/E, at 2 para. 9.
(135)AP Online, May 9, 1997.
(136)Statement of Gerard Ntashamaje, Director General, Ministry of Justice, before the Committee on the Elimination of Racial Discrimination, UN Doc. HR/CERD/97/29, (March 20, 1997).
(137)"Rwanda After the UN," The Economist, March 23, 1996, at 37.
(138)HRFOR Status Report as at January 6, 1997, "First Genocide Proceedings in Kibungo, Kigali and Byumba," UN human rights observers from HRFOR attended the trials held so far and this section relies on their findings, Http://193.135.156.15/html/menu2/5/rwanda/rwa_srep.htm.
(139)Defense witnesses have rarely appeared in the trials in Rwanda; this is also a problem for the tribunal in Arusha.
(140)McGreal, "Inside Rwanda's Death Row," The Mail and Guardian,January 31, 1997.
(141)Both international law (ICCPR, art. 14(3)(e) and Rwandese law (Code of Criminal Procedure, art. 18- 19 and 76(10) stipulate that the accused has the right to have witnesses appear on his/her behalf.
(142)UN Dept. Of Humanitarian Affairs, IRIN Report on the Great Lakes, Special Feature, "The Rwandan Genocide Trials: Building Peace Through Justice," (19 February, 1997).
(143)HRFOR Status Report, "Summary Report on the Human Rights Situation in Rwanda and the Activities of HRFOR, March-Mid-May 1997," [hereinafter March-May 1997 Report], at 2, para. 13.
(144)Australian Broadcasting Corp., May 16, 1997.
(145)Xinhua News Service wire story, March 1, 1997.
(146)See AI Rwanda Trials Report, supra note 123, at 6.
(147)See March-May 1997 Report, supra note 143, at 2-3.
(148)See HRFOR Status Report as at Jan. 8-20, 1997, "The Administration of Justice in Post-Genocide Rwanda," supra note 112, at 16, para. 103. No Bar Association exist in the country.
(149)See AI Rwanda Trials Report, supra note 123, at 7.
(150)HRFOR Status Report, "Genocide Proceedings in Byumba, Butare, Gisenyi and Kigali ville prefectures at January 8-20, 1997, Http://193.135.156.15/html/menu2/5/rwanda/rwa_srep.htm, at 5.
(151)Article 14(3)(b) of the ICCPR does not define what constitutes "adequate time and facilities" to prepare a defense. The UN Human Rights Committee has declared that, "What is 'adequate time' depends on the circumstances of each case, but the facilities must include access to documents and other evidence which the accused requires to prepare his case, as well as the opportunity to engage and communicate with counsel." General Comment 13 on Article 14, adopted at the 21st session of the Human Rights Committee, CCPR/C/21/Add.3.
(152)HRFOR Status Report as at March 8, 1996, "Suspension and Arrest of Silas Munyiagishali, Assistant Prosecutor, Parquet of Kigali," HRFOR/STRPT/11/1/8 March 1996.
(153)Id. and see AI Rwanda Trials Report, supra note 123, at 14.
(154)HRFOR Status Report as at May 6, 1996, "Arrest of Célestin Kayibanda, Acting Prosecutor of Kibuye," HRFOR/STRPT/15/1/6 May 1996.
(155)HRFOR Status Report as at June 1, 1996, "Suspension of Fidèle Makombe, Prosecutor, Parquet of Kibuye," HRFOR/STRPT/17/1/1 June 1996.
(156)See AI Rwanda Trials Report, supra note 123, at 15.
(157)The Economist, January 6, 1996, at 32-33.
(158)HRFOR Status Report, "Human Rights Incidents Involving Recent Returnees from Zaire and Tanzania: 15 November 15- January 15, 1997," HRFOR/STRPT/39/2/28 January 1997/E, at 3. The UN observers have also documented public executions of four murder suspects by the RPA in Gisenyi prefecture and in Gikongoro.
(159)UN Dept. of Humanitarian Affairs, IRIN Emergency Update, No. 169, on the Great Lakes, (12 May, 1997), at 3.
(160)Rony Brauman, Devant le Mal, Rwanda: Un Génocide en Direct, (Arlea: 1994) at 88, (translated by the Lawyers Committee).
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