(Nairobi) – The formal closure of the International Criminal Tribunal for Rwanda on December 31, 2015, makes it especially important for governments around the world to intensify efforts to bring remaining suspects to justice.
On December 14, the International Criminal Tribunal for Rwanda (ICTR) delivered its final judgment on appeal in the case against former Minister of Family and Women’s Development Pauline Nyiramasuhuko and five co-accused. Nyiramasuhuko was the first woman convicted of genocide by an international court. The court found her guilty of rape, among other crimes. The Appeals Chamber upheld convictions for most of the charges against Nyiramasuhuko, her son Arsène Ntahobali, and four local government officials, but lowered the prison sentences for all six defendants.
“The creation of the ICTR was an extraordinary evolution in the international response to serious and widespread human rights violations,” said Geraldine Mattioli-Zeltner, international justice advocacy director at Human Rights Watch. “It signalled that all serious crimes, whoever commits them and wherever they are committed, should be prosecuted and tried.”
In another significant development in December, Congolese officials arrested Ladislas Ntaganzwa in the Democratic Republic of Congo. The ICTR indicted Ntaganzwa – the former mayor of Nyakizu, in southern Rwanda – for genocide, incitement to commit genocide, and crimes against humanity, and transferred his case in 2012 to Rwanda for trial. He is currently detained in the Congolese capital, Kinshasa.
Human Rights Watch documented the Rwandan genocide in detail and has closely monitored the functioning of the ICTR since its creation. Alison Des Forges, senior adviser to the Human Rights Watch Africa division for almost two decades, published the authoritative account of the Rwandan genocide, “Leave None to Tell the Story,” and appeared as an expert witness in eleven ICTR trials.
The ICTR was created by the United Nations Security Council in 1994 in response to the genocide in Rwanda. Its mission was to prosecute those responsible for genocide and other serious violations of international humanitarian law committed in Rwanda or by Rwandan citizens in neighboring countries between January 1, 1994 and December 31, 1994. It was expected to try mostly high-level suspects and those who played a leading role in the genocide.
The ICTR has tried and convicted several prominent figures, including former Prime Minister Jean Kambanda; the former army chief of staff, General Augustin Bizimungu; and the former Defense Ministry chief of staff, Colonel Théoneste Bagosora. It indicted 93 people, sentenced 61, and acquitted 14, contributing in an unprecedented way to establishing the truth on the organization of the genocide in Rwanda and providing justice to victims.
The ICTR also established important jurisprudence in international criminal law and served as a precedent for the creation of the International Criminal Court, whose founding treaty was adopted in Rome in 1998.
However, the tribunal has had inherent limitations and attracted criticism, particularly from Rwandans. At the tribunal’s closing event, on December 1, the Rwandan justice minister, Johnston Busingye, reiterated the government’s criticisms of the lack of reparation for victims and the tribunal’s location outside Rwanda, and complained that genocide convicts were allowed to speak to the media. Others have criticized the relatively small number of cases the tribunal has handled and its high operating cost, as well as its bureaucratic processes and the length of time trials have taken.
Perhaps the ICTR’s most significant failure, Human Rights Watch said, has been its unwillingness to prosecute war crimes and crimes against humanity committed in 1994 by the Rwandan Patriotic Front (RPF), the rebel group that ended the genocide and has been Rwanda’s ruling party ever since. As they took over the country in 1994, RPF troops killed thousands of predominantly Hutu civilians. Though the scale and nature of these killings were not equivalent or comparable to the genocide, the victims and their families also have the right to justice. Although the ICTR had a clear mandate to prosecute these crimes, not a single RPF case has been brought before the ICTR for prosecution.
Parallel with the work of the ICTR, the Rwandan justice system tried an impressive number of genocide suspects, both in conventional domestic courts and in local, community-based gacaca courts. The standards of these trials have varied enormously. Instances of political interference and pressure resulted in a number of unfair trials. Other cases have shown greater respect for due process.
Trials of Rwandan genocide suspects have also taken place in the domestic courts of several other countries, including Belgium, Switzerland, Germany, Canada, Finland, Norway, Sweden, the Netherlands, and France.
In some of these countries, such as France – which had backed the former government of Rwanda and supported some of the forces that went on to commit genocide – many years elapsed before trials began. The first trial in France – of Pascal Simbikangwa, a former member of the Rwandan intelligence services – took place in 2014, following the creation of a national war crimes unit.
The ICTR referred two cases to France. One was for Laurent Bucyiabaruta, who was arrested and released in 2000 by the French authorities, and rearrested in 2007 under an international arrest warrant issued by the ICTR. He is currently detained in Paris. The other, against Wenceslas Munyeshyaka, a priest accused of genocide and crimes against humanity, was dismissed on October 2, 2015, by a French court, citing a lack of sufficient evidence.
The ICTR has referred other cases to Rwanda, including those of Jean-Bosco Uwinkindi, in 2011, and of Bernard Munyagishari, in 2012. Their trials in Rwanda have not yet concluded. The ICTR also referred to Rwanda the cases of six fugitives: Ladislas Ntaganzwa, three other local officials, a military officer, and a businessman.
To obtain the transfer of cases from the ICTR, the Rwandan government undertook legislative reforms aimed at meeting international fair trial standards. Some of these have been important and positive – for example, the abolition of the death penalty in 2007. The ICTR agreed to transfer cases to Rwanda for domestic prosecution in 2011 after further reforms.
“Human Rights Watch has documented major legal reforms in Rwanda in the last few years, but believes that the Rwandan justice system still lacks sufficient independence and that fair trials cannot be guaranteed in all cases,” Mattioli-Zeltner said. “The Rwandan authorities should ensure that judicial officials can make decisions without government interference, especially in politically sensitive cases.”
The ICTR is handing over three other cases to the Mechanism for International Criminal Tribunals. This residual mechanism takes over a number of essential functions of the ICTR and the ICTY – the International Criminal Tribunal for the former Yugoslavia – including appeals, retrials and review proceedings, protection of victims and witnesses, supervision of enforcement of sentences, and assistance to local jurisdictions.
Its top priority is to secure the arrest, transfer, and prosecution of eight remaining fugitives, five of whom are to be tried by Rwanda and three by the mechanism itself: former Defense Minister Augustin Bizimana, the former commander of the Presidential Guard Protais Mpiranya, and Félicien Kabuga, a businessman.
The execution of international arrest warrants has posed a major problem. Neither the ICTR nor the residual mechanism have their own police to carry out arrests and depend entirely on the cooperation of states where suspects are living.
At the ICTR’s closing event, Rwandan Justice Minister Johnston Busingye called “upon states where indicted genocide suspects are sheltering to understand that they owe a duty to humanity, and to the Rwanda victims, to ensure that those suspects are brought to justice.”
Countries should do everything in their capacity to bring remaining suspects to justice, Human Rights Watch said. The residual mechanism should continue actively searching for the eight ICTR fugitives, and countries should provide the necessary assistance and cooperation.
“Diplomatic pressure on countries where Rwandan genocide suspects are living to step up efforts to apprehend and prosecute them is of primary importance,” Mattioli-Zeltner said. “The UN Security Council should make clear that they will be held to account, wherever they may be, and that justice for the Rwandan genocide does not end with the closure of the ICTR.”