May 26, 2009

Justice Hassan B. Jallow
Office of the Prosecutor
International Criminal Tribunal for Rwanda
Arusha, Tanzania

Dear Mr. Prosecutor,

As you prepare to brief the Security Council on June 4 on the progress of the Tribunal, we write to urge you once more to prosecute crimes committed by the Rwandan Patriotic Front (RPF) in 1994. With the ICTR scheduled to complete all trials by the end of this year, we ask that you immediately announce your intention to pursue these cases so as not to leave the Security Council with the false impression that the Tribunal's core work at the indictment level is completed.

The Tribunal has achieved considerable success in bringing to justice those most responsible for the Rwandan genocide. However, a failure also to address the RPF's killing of tens of thousands of civilians will result in serious impunity for grave crimes committed in 1994 and would leave many with a sense of one-sided, or victor's, justice. Such a result would seriously undermine the Tribunal's legacy.

As you know, a UN Commission of Experts in 1994 documented crimes committed by the RPF and concluded that the RPF had "perpetrated serious breaches of international humanitarian law and crimes against humanity." The Commission's report, which was instrumental in establishing the ICTR, "strongly recommend[ed]" that the Security Council ensure that the persons responsible for these crimes be brought to justice before an independent and impartial tribunal. The UN High Commission for Refugees estimated the number of victims to be between 25,000 and 45,000 from April to August 1994. While not of the same nature or scale as the genocide, these serious crimes fall within the ICTR's jurisdiction and should now be prosecuted.

We understand why the Office of the Prosecutor has waited to prosecute the RPF cases until other cases have been completed. Prioritizing cases against the masterminds of the genocide involved gathering evidence inside Rwanda and having witnesses travel from Rwanda to Tanzania to testify at the Tribunal, all of which required the cooperation of the Rwandan government. When your predecessor, Carla Del Ponte, announced in 2002 that the ICTR would investigate RPF crimes, Rwandan officials prevented witnesses from traveling to the Tribunal, forcing the suspension of several trials for months.

Now that most of the genocide trials have been completed or are drawing to a close, concerns about Rwandan obstruction are not as pressing. Given that your office has investigated RPF crimes for more than ten years now, and based on our own investigations, including with witnesses who have spoken to ICTR investigators, we believe your office has sufficient evidence to request that indictments be issued. Even if Rwanda once again prevented the travel of witnesses from Rwanda to Tanzania to testify at the Tribunal, your office could rely on witnesses from outside Rwanda who are willing to testify.  We are aware that some of them have written to you personally, seeking justice for relatives lost at the hands of the RPF in 1994.

We were extremely disappointed by your June 2008 decision to transfer files of RPF suspects from the ICTR to Rwanda for domestic prosecution. We fear the reason was your concern that cases involving RPF crimes are too politically difficult for the Tribunal to adjudicate because of the likely need to indict senior figures in Rwanda's military or current government.

At the time of your decision, the Tribunal had just denied two requests to transfer indicted génocidaires to Rwandan courts because they would face unfair trials. The Tribunal concluded, among other things, that defense witnesses might be unavailable, thereby jeopardizing suspects' fair-trial rights. In one of the cases, the Tribunal concluded that the Rwandan judiciary was not independent of political interference.

Since that time, the Tribunal has denied three additional requests for genocide suspects to be transferred to Rwanda. Of the total five cases, three have already been confirmed on appeal. All decisions have emphasized the fear that potential witnesses face, ranging from intimidation and accusations of genocide ideology (a criminal offense in Rwanda involving any act deemed to espouse hatred or lead to violence) to actual violence and death.  Foreign jurisdictions, including the United Kingdom, France, and Germany, have dismissed requests for extradition on similar grounds in the past year.

Despite these decisions by both the ICTR and foreign courts making clear that genocide-related cases would face political interference and unfair adjudication in the Rwandan courts, your office  decided to hand over to Rwanda the even more politically sensitive RPF files for domestic prosecution in June 2008. When answering questions by the Security Council on this decision at the time, you stated that your office would monitor the proceedings closely and would recall the case to the ICTR if the trial did not meet international standards.

Within weeks of your decision to transfer the RPF files, a Rwandan military court charged and tried four RPF officers with war crimes for the 1994 killing of 15 civilians, 13 of them clergy. The trial proved to be a political whitewash and a miscarriage of justice, betraying the rights of victims' families to obtain justice for their loved ones. Both the prosecution and the defense presented the killings as spontaneous reactions by soldiers overcome with grief for their fellow RPF officers who had lost relatives in the genocide. The court heard testimony only from witnesses supporting this version of events, despite evidence you transmitted to Rwanda's prosecution service indicating that the killings were part of a planned military operation involving more senior officials. Two of the officers confessed to the killings and were sentenced to eight years in prison, reduced to five years on appeal. Two more senior officers were acquitted after a very brief trial.

Despite your commitment to the Security Council to ensure close monitoring of the trial, you sent an observer for only two preliminary detention hearings, one trial day, closing arguments, and the verdict. That cursory presence did not constitute diligent monitoring. Human Rights Watch and several Rwandan nongovernmental organizations and journalists monitored the proceedings.

Since the verdict of the Rwandan trial on October 24, 2008, Human Rights Watch has repeatedly asked for your official assessment of the trial and has urged you to recall the case and try it in accordance with the available evidence. Our most recent discussion was in your office on March 23, 2009.  On each occasion, you told Human Rights Watch you were still looking at the file and would provide a final assessment in due course. You have not offered an assessment, and it is now more than seven months since the verdict and three months since the appellate decision.

We call on you to include in your June 4 briefing to the Security Council an assessment of whether the Rwandan trial complied with international fair trial standards and, if you find such standards were not met, to recall the case to the Tribunal. We understand that you have discretion in deciding which cases to pursue, but we call on you to seek indictments against more senior RPF officers in relation to whom we believe your office has gathered substantial evidence and to pursue such cases vigorously. If necessary, we ask that you request the Security Council to extend the Tribunal's mandate beyond December 31, 2009, to ensure adequate time to prosecute these cases.

We strongly believe that your mandate as Chief Prosecutor will not be fulfilled until you prosecute alleged RPF crimes. Failure to do so will undoubtedly taint perceptions of the Tribunal's impartiality and undermine its legitimacy in the eyes of future generations. Seeking justice for the victims of these RPF crimes neither denies the genocide nor equates these crimes with genocide. It simply asserts that all victims, regardless of the identity of the alleged perpetrator, have the right to seek redress for the wrongs done to them.

We thank you in advance for your attention to this pressing matter.

Kenneth Roth
Executive Director