The Rwanda Tribunal: Justice
Delayed
(Original Version in French)
EXECUTIVE SUMMARY AND RECOMMENDATIONS
Seven years after its
establishment immediately following the genocide in Rwanda, and more than four
years since the beginning of the first trial, the International Criminal
Tribunal for Rwanda (ICTR), based at Arusha, Tanzania, has to date handed down
verdicts on only nine individuals. Of sixty-nine indicted suspects, forty-five
have been arrested. Not one of the alleged masterminds of the genocide has been
brought to trial – including Colonel Theoneste Bagosora who has been in prison
for five years. Most of the masterminds of the genocide, whether officially
indicted by ICTR or not (due to lack of evidence), are able to live freely in
many countries, including the DRC, Gabon, Kenya, and also France and Belgium.
With more than 800 employees,
three trial chambers presided over by nine judges, and a budget of around 90
million US dollars, the performance of the ICTR is lamentable. Between July
1999 and October 2000, the only substantial case heard
was the trial of a single accused, Ignace Bagilishema, the former mayor of the
village of Mabanza, which has just concluded. Five judges out of nine have
spent more than a year and a half without hearing a substantial case and one of
them had managed by last March to attain a record 28 months without hearing a
substantial matter.
There are some points in the
ICTR’s favour. It has provided indisputable recognition of the Rwandan genocide
and has politically neutralised the “Hutu Power” movement’s agenda of Tutsi
extermination. However, seven years on, it has still not been able to shed
light on the design, mechanisms, chronology, organisation and financing of the
genocide, nor has it answered the key question: who committed the genocide?
Compared to the International Criminal Tribunal for the former Yugoslavia
(ICTY), the ICTR has suffered from international disinterest and a shocking
lack of media attention. That is in part because the jurisdiction of the ICTR
is limited to the trial of crimes committed in 1994, while the ICTY’s
jurisdiction is not subject to any time limit.
The symbolic existence of the
tribunal has also not discouraged the ongoing protection in certain capitals
(Kinshasa, Brazzaville, Nairobi among others) of more than a dozen powerful
Rwandan Hutus who are among the principal genocide suspects. Neither does it
appear to have dissuaded the perpetrators of the 1994 genocide and the war
between the former Rwandan government of Habyarimana and the Rwandan Patriotic
Front (RPF). The perpetrators of the genocide have rearmed with complete
impunity in the refugee camps of eastern Congo, leading to the resumption of
the war by the RPF in 1996 and again 1998 on the territory of the Democratic
Republic of Congo, where war crimes and crimes against humanity continue to be
committed by both sides.
It is certainly not the
responsibility of the judges of the ICTR to write history. But their failure to
complete the central tasks of delivering justice and establishing a record of
events also prevents them from contributing to another mandate set by the
Security Council: national reconciliation between the Hutu and Tutsi
communities. The fact is that the political relevance of that mandate has been
rapidly overtaken by the continuation and regional spread of the conflict.
For the majority of Rwandans, the
ICTR is a useless institution, an expedient mechanism for the international
community to absolve itself of its responsibilities for the genocide and its
tolerance of the crimes of the RPF. The Rwandan government complains of the
squandering of money and resources while 130 000 prisoners fill its jails and
its courts have tried more than 4000 suspects; the survivors of the genocide find
the tribunal distant and indifferent to their lot, and the victims of the
crimes of the RPF denounce it as an instrument of the Kigali regime, seeing the
ICTR as a symbol of victor’s justice.
The
important task of the ICTR seems to have been lost in daily dysfunction and
internal bureaucratic conflict. The geographic split of the office of the
Prosecutor between Arusha, Kigali and The Hague has seriously impeded
investigations, and the long absences of judges and defence lawyers has not
assisted trial proceedings. There is now a grave risk that those in custody
will be released because of the failure to bring them to trial after a period
of years. The ICTR must immediately focus on meeting its mandate, while the UN
Security Council must ask the prosecutor to set a deadline for investigations,
and ask the judges to publish a trial schedule. Every day the mission of the
ICTR becomes more of an historic exercise, with less and less chance of having
an impact on events of the present. To tolerate such a situation, and support
it for too long, would be a second betrayal of the people of Rwanda.
Above
all, in the short term, it is imperative to establish priorities among pending
cases, and bring to trial those who are already in custody. Three of the key
groups that were used by Hutu extremists in the former Rwandan leadership were
the army, the interim government and the media. The trial of key media figures
is underway. The trial of military figures, many of whom are already in prison,
should also begin as a matter of urgency. This is extremely important in order
to show how the genocide was planned and carried out. The cases against former
ministers of the interim government should also begin as soon as possible.
Once the major genocide trials
are complete, the ICTR must undertake investigations of crimes committed in
1994 by the RPF. Despite public
announcements at the beginning of the proceedings and the promise of
co-operation by the government of Rwanda, it’s likely that this inquiry will be
seriously limited. It is hard to imagine that those in power will, in effect,
lift immunity on the military, especially those who are continuing the war in
the DRC. It is nevertheless crucial to insist that the regime in Kigali deliver
criminals into the hands of international prosecutors, and so give a strong
political signal that no crime, past or present, will go unpunished.
If the international community
really wants to deliver justice and combat impunity it must urgently reform the
operations of the ICTR. The recruitment of judges must be reviewed to ensure
that they have real professional experience in criminal justice. They must be made accountable for their
activities and performance. The independence of the prosecutor’s office must be
strengthened and incompetent employees of the prosecutor’s office and
registrar’s office should be dismissed. At the same time, international
co-operation between states and the ICTR must be improved in relation to the
arrest and prompt transfer of suspects.
UN member states should extend
their legal jurisdictions to help the cause of justice in Rwanda. The best
example so far has been that of Belgium, which has just tried four Rwandans
under a 1993 law that gives its national courts the power to try suspects for
genocide, no matter where the crimes were committed.
In the current situation and in
the face of such a large task, it is illusory to think of enlarging the mandate
of the ICTR to include crimes committed in the DRC in 1996-97, or in Burundi,
as some have proposed. Until the permanent International Criminal Court is
established, international law must immediately be applied in national
jurisdictions to prosecute crimes committed in Burundi since 1993 and in the
DRC since 1995. It may also be envisaged that a special court of mixed
jurisdiction be created along the lines of those proposed for Sierra Leone and
Cambodia. The question of the enlargement of the ICTR may be reconsidered in
future, but only if it quickly manages to fulfil its mandate.
In the end, the international
tribunal must deliver justice to the victims of the genocide. Certain trials
should for example be transferred to Kigali to reach certain audiences and to
increase the impact on the Rwandan population. The question of compensation for
victims by the creation of an international fund is equally important.
RECOMMENDATIONS
To the United Nations Security Council and Secretariat
1.
Ask the Prosecutor to set a deadline for investigations and
ensure that the arrest of the masterminds of the genocide is made a priority.
Require the judges to provide a court schedule establishing priorities, and
initiate without delay the trials of members of the interim government, former
senior officers of the armed forces, and political leaders who are already in
custody. Ensure that the prosecution strategy of the Tribunal conforms to
stated objectives and that efficient methods are implemented.
2.
Pass a resolution obliging all states who have tolerated the
presence of 17 known fugitives on their territory to make a serious effort to
arrest and transfer these persons to Arusha, under threat of sanctions. The
names of the states concerned should be cited in the resolution.
3.
Provide half-yearly reports on the activities of the ICTR and
judges.
4.
Give the office of the prosecutor both autonomy of action and
financial autonomy to carry out investigations and issue indictments.
5.
Create a commission to study the question of compensation for
victims of the genocide, taking into account initiatives already put in place
by Registrar of the Tribunal and by the government of Rwanda. This complex
issue should not be solely in the hands of the Tribunal. The commission may
consider the creation of an international fund, run by a board of eminent
persons.
To member states of the United Nations
On the search for and arrest of suspects
6.
Make the arrest of suspects a political and financial priority
for national police. Strengthen assistance to the ICTR in the investigation and
seizure of suspects, and put diplomatic pressure on those who are suspected of
providing refuge or protection to suspects on their territory, such as Kenya
(in the case of Kabuga), Congo-Brazzaville and DRC (Bizimungu, Ntiwiragabo,
Mpiranya and Renzaho) and Cameroon (Mpiranya).
On the transfer of suspects
7.
Transfer those indicted by the Tribunal as quickly as possible
and with respect to the law, in the absence of any special procedure.
On the protection of witnesses
8.
Increase the protection options available to the Tribunal so
that it can, if necessary, offer to relocate witnesses summoned to appear
before it or informers who have assisted the Prosecutor.
On the trial of alleged “genocidaires”
9.
Encourage states to adapt national laws, as Belgium has, that
give them the universal right to try architects and perpetrators of genocide.
On carrying out sentencing
10. Use
diplomatic pressure to encourage African states to respond favourably to
requests for co-operation with the ICTR on the issue of sentencing and provide
financial support to judicial co-operation programs concerned with receiving
prisoners convicted by the Tribunal.
To states providing financial support to the Tribunal
11. Demand a full public audit of the accounts of
the Tribunal.
To the governments of France and Belgium
12. Open investigations into suspects known to be
living in France and Belgium, whether on the official list of indictments or
not, such as the family of former
President Habyarimana. In cases already underway, such as that of the priest
Wenceslas Munyeshaka, speed up proceedings.
To the government of the United States of America
13. Establish
an office alongside the office of the prosecutor to administer funds for a
program of rewards for information about suspects wanted by the ICTR.
To the Prosecutor and the President of the ICTR
14. Clarify
and simplify the issuing of arrest warrants and if necessary, inform the UN
Security Council of non-co-operation of certain states if they are shown to
knowingly house suspects wanted by the Tribunal.
15. Set a
final date for investigations and prosecutions and present a schedule for the
trial of those who are already in custody.
16. Urgently
resolve the problems observed between the registrar of the court and the
prosecutor’s office in relation to the allocation of funds, notably by giving
the prosecutor’s office financial autonomy.
On judicial co-operation with Rwanda
17. Strengthen
legal co-operation initiatives with national courts in Rwanda. The “young
jurists mission” and the representation of Rwandan judicial officers at Arusha
should be developed. The exchange of information between the two legal systems
should be encouraged.
On the Outreach program
18. Seek
supplementary funds and support existing Year 2000 “outreach programs” which
aim to improve knowledge about the work of the ICTR in Rwanda.
On the holding of trials in Kigali
19. Arrange,
as soon as possible, to conduct certain trials of the ICTR in Kigali to
increase the impact of the proceedings on the people of Rwanda. If transferring
the trial is too costly, or is inconsistent with the rights of the defence,
then at least some hearings should be held in Kigali.
On court delays and the operation of the Tribunal
20. Stop
the unjustifiable delays, which have characterised the activities of the
Tribunal in the past two years and fulfil the mandate promptly, obliging all
chambers of the Tribunal to begin hearing substantial cases immediately and
compelling the appeals chamber to speed up proceedings.
21. Ensure
the recruitment of competent and efficient investigators and lawyers to the
office of the prosecutor.
22. Examine
the possibility of insisting that defence lawyers establish residence in Arusha
once they are appointed, except with the permission of the President of the
Tribunal.
To the government of Rwanda
23. Assist
the work of the Tribunal as much as possible in Rwanda and give guarantees of
co-operation especially in relation to crimes committed by elements of the RPF
in 1994, immediately suspending suspects from official functions, demobilising
them and handing them over to international legal authorities.
24. Modernise
the legal system, especially in carrying out sentencing, to encourage other
countries in the region to extradite genocide suspects to Rwanda.
Nairobi/Arusha/Brussels
7 June 2001