Rwanda

Governments have tried to offset the international failure to help victims of Rwandas ethnic war with the creation of a criminal tribunal. David Griffiths reports


Were all painfully aware thatthegenocide in Rwanda should never have happened.Neither the Security Council, the UN Secretariat, governments in general, nor the international media paid enough attention to the gathering signs of disaster. At least 800,000 men, women and children were abandoned to the most brutal of deaths, as neighbour killed neighbour. The international community failed Rwanda. That must leave us all and me personally with an abiding sense of bitter regret and sorrow.

This stark condemnation was delivered in a speech by UN Secretary General Kofi Annan in Rwanda on 7 April this year, marking 10 years since the beginning of the swiftest genocide in modern history.

Genocide the background

On the evening of 6 April 1994, a plane carrying presidents Juvenal Habyarimana of Rwanda and Cyprien Ntaryamira of Burundi was shot down over the Rwandan capital Kigali as they were returning from a summit of regional leaders in Tanzania. Both men, along with their senior aides and the French crew, were killed in the attack.

Following the death of the Rwandan president, the Presidential Guard was immediately deployed on the streets of Kigali to set up roadblocks. These elite forces, along with the Hutu-dominated ruling partys youth militias, then set in motion a campaign to find and attack moderate members of the Rwandan opposition as well as Tutsi civilians.

As Lieutenant General Dallaire, the United Nations Assistance Mission for Rwanda (Unamir) commander in Rwanda, recalls: In just a few hours, the Presidential Guard had conducted an obviously well-organised and well-executed plan. By noon on 7 April, the moderate political leadership of Rwanda was dead or in hiding, and the potential for a future moderate government utterly lost.

Prior to the genocide, the Tutsi ethnic group made up approximately 15 per cent of Rwandas population, but, despite being in the minority, they were given control of the country by Belgian colonial authorities. Following independence in 1962, the Hutu-dominated Rwanda and a violent struggle for power between the two ethnic groups ensued, reaching its climax in 1994. Fighting between the armed forces of the mainly Hutu government of Rwanda and the Tutsi-led Rwandese Patriotic Front (RPF) first broke out in October 1990 across the border between Rwanda and its northern neighbour Uganda. A number of ceasefire agreements followed, including one negotiated at Arusha, a town in northern Tanzania, later chosen for its symbolism as the headquarters of the International Criminal Tribunal for Rwanda (ICTR). It was here that an agreement between the Rwandan Government Forces (RGF) and the RPF, known as the Arusha Accords, was signed to end the bloodshed and to create a transitional government.

Following the Arusha Accords, the UN Security Council approved (with reference to Resolution 872/1993, an international force under Chapter VI of the UN Charter) Unamir. Force was deployed on 1 November 2003 to help implement the agreement to form a transitional government.

Although Unamir made many attempts to facilitate the formation of a transitional government, this objective was never completed. Further attempts by Unamir to arrange a ceasefire were also unsuccessful, and following the withdrawal of some of its contingents Unamir was reduced to a skeleton force by Resolution 912/1994.

Although Unamir did manage to protect thousands of Rwandese sheltering at sites under its control, it had neither the mandate nor the capability to prevent the genocide. Unamirs mission was later complemented by Operation Turquoise, a French-led multinational humanitarian force operating under Chapter VII of the UN Charter, which created humanitarian protection zones in southwestern Rwanda.

In July 1994, RPF forces took control of Rwanda, ending the civil war and establishing a government which reaffirmed its commitment to the 1993 peace agreement.

The tribunal

Recognising the serious violations of humanitarian law committed in Rwanda, the UN Security Council created the ICTR by Resolution 955 on 8 November 1994, with the aim of prosecuting those responsible for the atrocities.

The ICTR is divided into three organs: the Registry provides support services for the work of the judges trial chambers and prosecutors and is responsible for administration and management; the Office of the Prosecutor (OTP) investigates crimes within the tribunals jurisdiction, prepare charges and prosecute the accused; and judges and their legal assistants belong to the trial chambers.

Since its inauguration, the ICTR has suffered much criticism in the media, some of it justified. To date, of the 21 accused that have been tried, 18 have been convicted, including Jean Kambanda, who was Prime Minister of Rwanda during the genocide. Other convictionsincludegovernment ministers and members of local government, the military, the clergy and the media.

Seven trials are currently in progress, involving 21 accused.

For 2002-03, the UN General Assembly has granted the ICTR a total budget of just over $177.7m (100.3m) and 872 posts. More than 80 nationalities are represented at the tribunals offices in Arusha, Kigali and the Hague.

In July 2003, the ICTR submitted its Completion Strategy to the UN. The Completion Strategy took into account Security Council Resolution 1503, adopted on 28 August 2003, which urged the ICTR and the International Criminal Tribunal for the former Yugoslavia (ICTY) to complete all investigations by 2004, all trials by 2008 and all appeals by 2010.

Initial indictment

Trials at the ICTR are among the most complex to take place in the worldwide legal community.

If the prosecutor is convinced there is sufficient evidence against a suspect, an indictment is forwarded to the registrar of the ICTR for confirmation by a judge. The accused must then be tracked down and arrested.

Those indicted by the tribunal have been apprehended in 23 different countries. Once an indictment has been confirmed and an arrest warrant and order of transfer to the ICTR obtained, the accused are taken into provisional custody. They are immediately informed of the charges against them and transferred to the ICTR Detention Centre in Arusha. Shortly after transfer, a tribunal judge must be satisfied that the rights of the accused have been and are being respected.

The initial appearance

At the initial appearance of the accused, the judge must confirm that the accused understands the charges against them and instruct them to enter a plea of guilty or not guilty. After the plea, a date is set for trial.

Appointment of counsel

Under the General Provisions for the Assignment of Defence Counsel at the ICTR, every accused has the right to choose and to be assisted by counsel.

The Lawyers and Detentions Facility Management Section (LDFM) retains a list of counsel from which the defendant can make their selection. An accused may waive the right to appoint counsel, in which case the registrar can in the interests of justice decide to select counsel for the defendant. The ICTR requires defence counsel to have 10 years legal experience before accepting their registration. The ICTY and the International Criminal Court (ICC) have no such requirement.

Pre-trial proceedings

Within30daysoftheinitial appearance by the accused, the prosecutor must disclose to the defence all supporting material accompanying the indictment. The prosecutor must also produce, no later than 60 days before the trial date is set, copies of all statements by witnesses of those called to testify.

Prior to the trial, both sides have to identify to each other the names of their witnesses for establishing either the guilt or the alibi of the accused. Preliminary motions by either party have to be brought within 60 days following these disclosures by the prosecutor and defence. Preliminary motions by the accused include objections based on lack of jurisdiction, defects in the form of the indictment or the denial of request for assignment of counsel.

Decisions on preliminary motions are without interlocutory appeals except in the case of dismissal of an objection based on lack of jurisdiction. This notice of appeal has to be filed within seven days of the impugned decision.

Two or more crimes may be joined in one indictment if the acts committed together form the same transaction and were allegedly committed by the same accused.
Persons accused of the same or different crimes committed within the same act can be charged and tried jointly.

The trial

The hearings against a suspect are public unless the trial chamber decides to close the proceedings.

A judge may order appropriate measures to safeguard the privacy and security of victims and witnesses, provided that the measures are consistent with the rights of the accused. A trial chamber may also exclude the media and public for reasons of public order or morality, or in the wider protection of the interests of justice. Any such order has to be made public by the trial chamber.

Each party is entitled to call witnesses and present evidence. Unless otherwise directed, the presentation of evidence for the prosecution is followed by the presentation of the defence, and if appropriate this will be done in closed session. Before the prosecutor presents evidence, each party makes an opening statement. The defence may, however, elect to make its statement after the prosecution has concluded its presentation of evidence and before the defence begins its own presentation of evidence.

After the presentation of evidence by each party, the prosecution and defence present their closing arguments. The prosecution may develop a rebuttal argument, to which the defence can present a rejoinder. The judgment by the chamber is pronounced in public. A finding of guilt is reached only when a majority of the trial chamber is satisfied that guilt has been proved beyondreasonabledoubt.Full judgment and sentence are delivered in both English and French.

Appeal proceedings

Any party seeking to appeal a judgment or sentence should, not more than 30 days from the date they are delivered, file a written notice of appeal, setting out grounds for objection.

The presiding judge of the appeals chamber may designate from among its members a judge responsible for pre-hearing proceedings.

The pre-hearing judge records points of agreement and disagreement between the parties on matters of law and fact. The judge may order the parties to file further written submissions with the pre-hearing judge or the appeals chamber. A brief by the appellant, containing all arguments and authorities, must be filed with the registrar within 30 days of the initial filing. The same applies to the registrars brief, to which an appellant may file a brief in reply within a period of 15 days. The appeals chamber can rule on appeals based solely on the briefs of the parties, unless it decides to hear the appeal in open court. A party may present additional evidence under the condition that it has been filed with the registrar not less than 15 days before the date of the hearing.

The appeals chamber will pronounce judgment based on the record of appeal and any other additional evidence presented to it. The judgment is delivered by a majority of judges. In appropriate circumstances, the appeals chamber can order that the accused be retried before the trial chamber.

Conduct of the witness

Any witness who refuses or fails continuously to answer a question considered by the chamber as relevant to the trial may be found in contempt of the tribunal. The same applies to any person who attempts to interfere with, or intimidate, a witness. The chamber can, however, decide to relieve a witness of their duty to answer for reasons it may consider adequate. It is also obliged to control the manner of questioning to avoid harassment or intimidation in court. This applies particularly to protected witnesses. Unlike expert witnesses, who provide the court with information in their relevant field of expertise, protected witnesses are factual witnesses and/or genocide survivors, whose protection has been ordered in a decision rendered by the trial chamber and whose identity is subject to non-disclosure.

The maximum penalty for false testimony under solemn declaration is $10,000 (5,600) or a term of imprisonment of 12 months, or both.

David Griffiths is working as a press officer with the ICTR in Tanzania and next year commences his training contract with Weil Gotshal & Manges in London

Case study: the media case

The International Criminal Tribunal for Rwanda (ICTR) media case is the first judgment since the conviction of Julius Streicher at Nuremberg in which the role of the media in the context of international criminal justice has been examined.

In this case, the chamber recalled important protections under international law on the right to freedom of expression, and noted that some of the communications cited by the prosecution were protected by this right. An example was an interview with Jean-Bosco Barayagwiza that was broadcast on RTLM, which the tribunal described as a moving personal account of his experience of discrimination as a Hutu. The tribunal held that it was critical to distinguish between the discussion of ethnic consciousness and the promotion of ethnic hatred.

In a radio interview broadcast at the height of the genocide on 25 April 1994, Ferdinand Nahimana talked of the war of media, words, newspapers and radio stations, which he described as a complement to bullets. In sentencing him, the chamber told Nahimana: You were fully aware of the power of words, and you used the radio the medium of communication with the widest public reach to disseminate hatred and violence Without a firearm, machete or any physical weapon, you caused the death of thousands of innocent civilians. Called Radio Machete by some, RTLM told listeners on 4 June 1994 that the Tutsi would be exterminated: Look at the persons height and his physical appearance, RTLM journalist Kantano Habimana said. Just look at his small nose and then break it.

The ICTR Internship Programme

The International Criminal Tribunal for Rwanda (ICTR) runs a year-round internship programme. The programme is geared towards providing the ICTR with assistance from students and professionals specialising in fields relevant to the work of the tribunal, such as international relations, law, economics, political science, philosophy, journalism and translation. Internships last between two and six months in one of the organs of the tribunal. More information on the ICTR Internship Programme can be found on www.ictr.or.

After a three-month internship programme at the tribunal, David Griffiths was hired as a press officer. He will commence his training contract with US firm Weil Gotshal & Manges in 2005.