Rwanda and the Security Council: Changing the International Tribunal

Your Excellency:

As the Security Council considers proposed changes in the post of prosecutor of the International Criminal Tribunal for Rwanda (ICTR), its deliberations provide an important opportunity to review the current status and future needs of the ICTR. Human Rights Watch would like to offer some observations and recommendations to help guide that assessment. We are making similar recommendations in separate letters to the Office of the Prosecutor (OTP), Chambers and Registry.

After years of unsatisfactory performance, the ICTR has improved its functioning in recent months. The appointment of the deputy prosecutor and chief of prosecutions brought much needed stability to the OTP and encouraged staff to focus on moving ahead more efficiently with prosecutions. The arrival of new judges and the election of ad litem judges promises to speed up trials, and the establishment of a coordination council and a management committee under the newly elected president promise better use of resources and coordination among the three organs.

Fundamental problems, however, remain to be addressed. These problems concern management of the ICTR on the one hand and its ability to fulfill its mandate completely and impartially by prosecuting war crimes and crimes against humanity charged against members of the Rwandan Patriotic Front (RPF) and its army, the Rwandan Patriotic Army (RPA), on the other hand.

Important management problems exist in all three organs of the ICTR. Several of these require integrated solutions involving OTP, Chambers and Registry. Several require action from the Security Council, which should play an important role in supporting improvements at the ICTR. However, an ICTR, no matter how well run, that ends its operation by prosecuting only cases of genocide and ignoring RPA war crimes and crimes against humanity will lack credibility, even for its prosecutions of the genocide.

The Security Council must determine whether the proposal to split the post of prosecutor of the two tribunals will improve their efficiency. At the same time it must ensure that any change does not hinder the delivery of impartial justice and the complete fulfillment of the Tribunal's mandate.

Problem 1: Improving the speed and quality of trials
Problem 2: Implementing an effective completion strategy
Problem 3: Fulfilling the mandate of the ICTR completely and impartially
Problem 4: Increasing attention to crimes of sexual violence
Problem 5: Improving relations of the ICTR with the Rwandan people
Problem 6: Compensating persons wrongfully detained by the ICTR and ICTY

Problem 1: Improving the speed and quality of trials

The OTP has suffered from inconsistent leadership, in part because two key posts were long vacant, in part because the current prosecutor spends a substantial part of her time in the Hague (although less than did her predecessors). The appointment of the deputy prosecutor and the chief of prosecutions has brought much needed stability to the OTP, allowing for the development of longer-term planning.

At times OTP prosecutors have not been ready to present cases efficiently and effectively in court, necessitating trial adjournments or wasting the time of the court. In some instances these failures reflect poor investigations, conducted discontinuously, by different teams, over a period of years. Poor coordination between investigators and the trial team also contributes to unsatisfactory courtroom performance.

Important posts in the prosecutor's office have sometimes been left vacant for excessively long periods of time. In some cases OTP officials and registry officials evaluate candidates differently, leading to unproductive and protracted conflict over hiring decisions. Efforts by the OTP to transfer staff from Kigali to Arusha have encountered undue bureaucratic delays.

The OTP has begun trials of the four most important military officers accused of genocide and will soon begin trials of other military and civilian authorities of major importance. Instead of concentrating resources on these major trials, the OTP is simultaneously preparing trials of other persons accused of lesser roles and it is investigating the cases of suspects yet to be arrested.

The OTP tried to speed prosecutions by grouping defendants for trials but this practice has not measurably improved the pace and may in fact have slowed it. Obtaining plea agreements would lighten the load on the OTP, but it has not obtained many such agreements

The pace of trials is also the responsibility of the judges, some of whom lack experience in managing a courtroom. Judges sometimes permit lengthy and irrelevant examination of witnesses. Judges have generally sat only half a day on Friday. They have taken month-long vacations simultaneously, leaving courtrooms empty during both summer and winter recesses.

Judges have permitted parties to submit extensive amounts of written documentation and have allowed parties to develop the practice of submitting written briefs at the conclusion of a case, some of which run to hundreds of pages.

The inability of registry staff to keep up with the demand for translations of these thousands of pages of documents slows the work of all parties and of the judges. In some cases, the lack of translations of needed documents has resulted in postponement of trials.

The addition of ad litem judges promises to speed the pace of trials, but as the Statute now stands, those judges cannot be used to maximum effectiveness. They cannot themselves form three-judges benches; they must sit in combination with permanent judges. In addition, ad litem judges may not review indictments or adjudicate pretrial proceedings.

Recommended Action from the OTP

Concentrate resources on the major trials instead of attempting to advance simultaneously on cases of persons accused of lesser roles in the genocide.
Require better job performance from staff and coordinate work more effectively within trial teams, between trial teams, and between trial teams and investigators.
Continue efforts to recruit the highest quality staff.
Redouble efforts to encourage plea arrangements.
Reconsider the use of group trials and sever cases if this will speed trials.

Recommended Action from the Chambers

Hold full day sessions five days a week and arrange judicial vacations so that courtrooms are always in use.
Adopt a uniform practice concerning the admissibility of evidence so as to limit the time needed in court to decide such questions.
Exercise tighter control over the relevance of examination of witnesses and over the time taken by all parties in presenting their cases.
Decide as many issues as possible on oral motion.
Encourage the submission of evidence in sworn written testimony for background matters rather than orally in the courtroom.

Recommended Action from the Registry

Facilitate the recruitment and hiring of staff, including for the OTP, with competence and relevant job experience being the most important criteria.
Improve the efficiency of clerical services, including particularly that of staff responsible for translations.

Recommended Action from the Security Council

Amend the ICTR Statute to permit ad litem judges to constitute three-judge benches without the obligatory participation of permanent judges.
Amend the ICTR Statute to permit ad litem judges to adjudicate pretrial proceedings and to review indictments.

Problem 2: Implementing an effective completion strategy

From the start, the ICTR took custody of suspects accused of roles of varying importance, some delivered by national jurisdictions, some arrested by ICTR officials without regard for the number of cases that could be prosecuted. The OTP originally proposed an unrealistic program of new arrests. It has since revised these plans and now undertakes to bring twenty-four new indictments. Adding even that number to the existing load will make it difficult if not impossible to complete trials by 2008.

To meet the 2008 deadline, the OTP proposes to transfer some forty cases to national jurisdictions pursuant to Rule 11 bis adopted in July 2002. There is a risk that prosecutions in some national jurisdictions, including that of Rwanda, may not be conducted according to internationally accepted human rights and due process standards. The Rwandan judicial system itself has been overwhelmed and unable to bring to trial more than a small part of the persons detained. The number of cases to be transferred can be reduced by speeding up the current pace of ICTR trials so that more suspects can be tried before the tribunal ends its operations; by encouraging plea arrangements where appropriate; and by withdrawing indictments that are too weak for prosecution.

If any cases are to be transferred, there are several issues to address. One is the legality of Rule 11 bis, which may be ultra vires. Another is the lack of safeguards for confidential witnesses or testimony should the prosecutor transmit information to national jurisdictions as is now permitted by Rule 11 bis.

The president of the ICTR is negotiating a memorandum of understanding with the Government of Rwanda to provide for transfers of some cases to its jurisdiction and to resolve some of the practical difficulties involved.

Recommended Action from the OTP

The OTP should concentrate its efforts on the arrest and prosecution of those suspects who allegedly played roles of greatest importance in leading the genocide or cases that can substantially advance the prosecution of such persons.
The OTP should encourage plea agreements where appropriate.
The OTP should promptly withdraw any indictments where ample evidence for conviction is lacking or will not be obtained before the trial begins.
The OTP should minimize the number of cases referred to national jurisdictions and urge jurisdictions of nations other than Rwanda to prosecute such cases.

Recommended Action from Chambers

The president of the ICTR should complete the memorandum of understanding with the Rwandan government and with any other national jurisdictions to which cases might be transferred, ensuring that sentencing would comport with the prohibition of capital and corporal punishment. The ICTR should retain ultimate jurisdiction over such cases and should be prepared to reassert jurisdiction if monitoring shows that trials are not being conducted in good faith and in accord with internationally accepted human rights and due process norms.
Judges should amend rule 11 bis to protect the identity of and information from confidential witnesses. The OTP should be permitted to share such information with national jurisdictions only if the witness has given his or her consent.

Recommended Action from the Security Council

The Security Council should amend Article 8 of the Statute of the ICTR to authorize referral of ICTR cases to national jurisdictions. Having clear authorization from the Security Council for the transfer would make legal appeals and related delays less likely.

Problem 3: Fulfilling the mandate of the ICTR completely and impartially

The genocide in Rwanda was perpetrated during a war between the Rwandan government and the RPF. In defeating the Rwandan government, some RPA soldiers killed thousands of civilians in violation of international humanitarian law.

Rwandan government officials, including President Paul Kagame, acknowledge that some RPA soldiers committed violations of international humanitarian law in 1994. These same officials, including President Kagame, originally agreed to assist the ICTR in prosecuting these crimes, but after the prosecutor stated publicly that she was investigating several such cases, the Rwandan government began obstructing the work of her office. To pressure the prosecutor to halt these investigations, the Rwandan government imposed new restrictions on the travel of witnesses needed by the prosecutor for testimony against persons accused of genocide. As a result, the ICTR was forced to suspend three genocide trials in 2002.

In July 2002 the prosecutor notified the Security Council of the noncooperation of the Rwandan government. The Council took until December to act and then delivered only a mild reminder to the Rwandan government that it must cooperate with the ICTR.

Each time that the prosecutor announced that investigations of the RPA were under way, she was forced to suspend work on these cases, in part because of the lack of strong Security Council backing, in part because of the persistent and effective Rwandan opposition. Investigation of crimes by RPA soldiers have been stalled for the last year.

As public attention focused on the lack of justice for RPA crimes in 1994, the Rwandan government claimed that it had prosecuted or would prosecute soldiers accused of such crimes. In nine years in power, the Rwandan government has brought only a few dozen suspects to trial on charges of 1994 crimes that violate international humanitarian law. Those convicted have served only brief terms in jail.

Rwandan government officials have tried to make arrangements with the prosecutor's office to end or at least to minimize prosecutions of RPA soldiers in return for providing greater cooperation in prosecuting cases of genocide. The last such attempt took place in Washington, D.C. in mid-May 2003, facilitated by U.S. government officials. The effort failed and the Rwandan government stepped up its campaign to remove the current prosecutor.

Recommended Action from the OTP

Pursue investigations and prosecutions of members of the RPF and RPA for whom there is evidence of serious war crimes or crimes against humanity.

Recommended Action from the Security Council

Support the prosecutor promptly, publicly, and firmly in efforts to execute the ICTR mandate completely. In a resolution or presidential statement, inform the Rwandan government that its cooperation with the ICTR, for cases involving genocide as well as for those involving other violations of international humanitarian law, is obligatory under Chapter VII of the UN Charter. Be prepared to take the necessary steps to ensure that the Rwandan Government lives up to is obligations.
Grant the prosecutor an extension of the 2004 deadline on investigations if necessary to gather evidence of RPA and RPF crimes.

Problem 4: Increasing attention to crimes of sexual violence

The OTP often fails to include charges of sexual violence in cases where such violence is part of the crime under investigation. The number of new indictments for crimes of sexual violence has declined in the last four years and adequate evidence has not been developed for cases in which such charges are made.

Recommended Action from the OTP

Provide adequate resources to the newly re-established team for investigating charges of sexual violence and ensure that its findings are fully and appropriately used by trial teams.
Ensure that necessary staff are adequately trained to gather proof of these crimes and to deal appropriately with victims and witnesses on these issues.
Focus new investigations on documenting charges of sexual violence in cases of major importance.

Problem 5: Improving relations of the ICTR with the Rwandan people

The ICTR is supposed to exist in part to satisfy the need of the Rwandan people for justice, but few Rwandans outside of the urban elite and a limited number of survivors of the genocide know about it. The computerized information center in the national capital serves only a tiny minority of this largely rural society where many are illiterate.

Some of the Rwandans acquainted with the court are witnesses, some of whom were badly treated or believe that they were badly treated by the ICTR. In some cases, staff failed to treat them with respect, and in one unfortunate incident, judges laughed during the testimony of a rape victim. Although there is no evidence that witnesses have suffered physical harm as a result of their testimony, some have been harassed and intimidated. ICTR personnel have not systematically monitored the situations of former witnesses.

Rwandans in general do not follow ICTR proceedings and even witnesses sometimes do not know the outcome of cases in which they testified.

The ICTR provides medical assistance to witnesses during their stay in Arusha but assumes no responsibility after that time. The Registrar has begun efforts to create a trust fund to aid genocide survivors who are ill or otherwise in need.

Recommended Action from the OTP

Ensure that investigators and trial teams deal with witnesses respectfully and with minimum disruption of their lives. If a witness is to be called in more than one trial, make one person responsible for handling all contacts with the witness.

Recommended Action from the Registry

Designate staff to ensure continued contact with witnesses after they have testified so that any harassment or threats are promptly dealt with.
Increase efforts to make the ICTR known among ordinary Rwandans, particularly those who live outside the urban centers. Should the Rwandan government permit the establishment of private radio stations, arrange for the broadcast of portions of the trials in Kinyarwanda.
Continue efforts to organize a trust fund for the benefit of needy genocide survivors.

Recommended Action from Chambers

Ensure a courtroom environment that enables genocide survivors, and particularly victims of sexual violence, to testify with due regard to their humanity and dignity.

Problem 6: Compensating persons wrongfully detained by the ICTR and ICTY

In September 2000, the presidents of the ICTR and the ICTY formally requested the Security Council to amend the Statutes of their courts to allow them to award compensation to persons who had been wrongfully detained, prosecuted, or convicted by the Tribunals in accordance with Article 9(5) of the ICCPR.[1] Compensation is particularly appropriate given the lengthy pretrial detention at the ICTR.

Recommended Action from the Security Council