Global Policy Forum

By Stephanie Nieuwoudt*

International court trying Rwandan genocide cases is racing against time to wrap up its trials before a United Nations deadline expires.

With a deadline of 2008 looming for the International Criminal Tribunal for Rwanda to wrap up its trials, it has become imperative that the court look at countries to which some of the outstanding cases could be transferred.

Hassan Bubacar Jallow, the prosecutor at the International Criminal Tribunal for Rwanda, ICTR, based in Arusha, northern Tanzania, told the United Nations Security Council last December that the cases of 12 fugitives wanted by the tribunal have been earmarked for transfer to the Rwandan judicial system. Five detainees currently in custody in Arusha have also been marked down for transfer to Rwanda.

Jallow said these measures would allow the tribunal to clear a backlog of cases that threatens the ability of the court to finish all its scheduled trials, which, under UN Security Council Resolution 1503, have to be completed by the end of next year. The announcement by Jallow, a former Gambian justice minister and judge, prompted an immediate response from the human rights body Amnesty International, expressing concern about Rwanda's capacity to try the accused. Amnesty said the Rwandan government is unable to ensure the security of suspects "before, during and after their prison term". "Rwandan justice cannot guarantee suspects the right to a fair trial by complying with legislations and international conventions," the group said.

Rwanda has always maintained that genocide crimes should be tried on its own soil as a way of healing the wounds left by the 100 days of mass killings in 1994. But the international community has argued that the country lacks the capacity and resources necessary to conduct genocide trials. Of paramount concern for Amnesty is the fact that Rwanda still imposes the death penalty. Some 600 convicts are currently on death row, most of them facing execution in relation to crimes committed in 1994.

But on January 19 this year, Rwandan justice minister Tharcisse Karugarama said his government had approved plans to scrap the death penalty. The legislation, which will have to be formally agreed by parliament, was approved at a cabinet meeting after a lengthy period of public consultation. The minister said parliamentary approval should be a formality, given that President Paul Kagame's Rwandan Patriotic Front, RPF, has large majorities in both houses. Karugarama added, "If parliament adopts the law, death row convicts will have their sentences commuted to life imprisonment."

The ICTR, established by the UN to prosecute those deemed to be most responsible for the 1994 genocide during which hundreds of thousands of Tutsis and moderate Hutus were murdered, only has powers to impose life imprisonment. Anticipating Rwanda's proposed reform, Jallow told the Security Council, "The indications are that the death penalty, a major obstacle to the transfer of any case to Rwanda, will be abolished not just in relation to the ICTR accused, but across the board. As soon as that is accomplished, I shall be requesting the transfer of the 17 indictees."

Rwanda's UN representative Joseph Nsengimana told the Security Council that although there was still a lack of capacity in the national judicial system, he thought it was time for Rwanda to "regain full national ownership of the process of administration of justice for crimes committed during the genocide". Nsengimana added that the Rwandan government has been working with the tribunal to prepare for the transfers.

Nevertheless, analysts remain sceptical about Rwanda's ability to try high-profile cases. "At present, there are legitimate concerns about whether the Rwandan authorities, including the judiciary, have the capacity to ensure that such complex trials are conducted fairly and properly," said Gabriel Oosthuizen, executive director of International Criminal Law Services, a Hague-based group specialising in international criminal law. "Efforts to address the serious capacity constraints are ongoing and, depending on their outcome and the circumstances at the relevant time, former ICTR accused may well receive fair trails in future."

Asked by IWPR whether he thought the impending abolition of capital punishment in Rwanda will reassure the international community, Oosthuizen said, "The short answer is no. It is one of a number of relevant factors, but the passing of such a law will remove a significant hurdle. "It is too early to say whether the ICTR will transfer all, or none, of the cases earmarked for transfer to Rwanda to that country."

Other analysts are concerned about reports of human rights abuses under the Kagame government. One example of this is the allegation that Rwandans are being forced to attend "gacaca" court hearings. "Gacaca" hearings are the traditional system of justice in Rwanda. Courts are held outdoors – the word "Gacaca" loosely translates as "justice on the grass" – with household heads serving as judges in the resolution of community disputes. The system is based on voluntary confessions, apologies and pleas for forgiveness by wrongdoers.

There have been reports that people are being pressured to turn up to "gacaca" proceedings, and that attendance is marked down in their social service documents. If they fail to attend without good reason, they may find themselves turned away when seeking medical help at hospitals and clinics.

"There are indeed indications that human rights infringements do take place under the current government," said Frans Viljoen, professor of law at the Centre for Human Rights at the University of Pretoria in South Africa. "But these abuses are not really openly spoken about by western leaders. It might be that Kagame's government is generally regarded as effective and stable and at least officially opposes and fights ethnicity. Other stable and effective yet autocratic regimes, like that of Yoweri Museveni of Uganda, are often given the same treatment.

"The silence of the international community might also be attributed to an implicit feeling of guilt that the mostly Tutsi victims were not protected during the genocide. It means that Kagame – whose regime essentially represents the Tutsi victims – is given more leeway."

So far, the ICTR has prosecuted 34 individuals, of whom 29 have been convicted and five acquitted. Of the convicted, 18 persons were given life sentences. At the Security Council meeting, Jallow said that the trials of 25 accused are in progress at the ICTR. "While those cases present a major challenge, they are nevertheless all expected to conclude at various times during 2007 and 2008," Jallow said. "None of them is projected to go beyond 2008."

Any decision to transfer cases ultimately lies with the ICTR's Trial and Appeals Chambers. Jallow last year asked for the case of Michel Bagaragaza, former head of the tea trade in Rwanda, to be transferred to Norway. The transfer request – the first by the ICTR – was turned down on the grounds that Norway did not have adequate genocide laws. Bagaragaza is alleged to have sanctioned the supply of weapons vehicles held by government tea factories to the Interahamwe, the extremist Hutu militias that carried out the 1994 massacres along with the then government and military. Bagaragaza surrendered to the ICTR in 2004 when he signed a cooperation deal with Jallow. He has subsequently testified in many cases before the ICTR and is currently in custody in The Hague. In December last year, Jallow filed another request to transfer Bagaragaza – this time to a national court in the Netherlands.

Top of the list of fugitives who will not be transferred to Rwanda is Felicien Kabuga, a wealthy businessman who is accused of bankrolling those who committed the genocide. He was also part-owner of Radio Television Libre de Milles Collines, RTLMC, a radio station that openly incited hatred against Tutsis. Although the United States government – through its Rewards for Justice programme – has placed a reward of five million US dollars on his head, Kabuga has evaded detention since 1998 when the ICTR issued a warrant for his arrest.

Bongani Majola, assistant prosecutor at the ICTR, told IWPR that the Kabuga file will not be transferred to Rwanda because he is too big a fish. "If he is arrested after 2008, we will take further directions from the Security Council," said Majola. The ICTR mandate may be extended to allow Kabuga and other top fugitives to be tried in Arusha.

Other fugitives who will not be transferred to Rwanda include Augustin Bizimana, Protais Mpiranya alias Yahya Muhamed and Augustin Ngirabatware alias Mbio Mbio. Bizimana is a former defence minister; Mpiranya was commander of military and intelligence operations in the elite Presidential Guard; and Ngirabatware was one of the founders of RTLMC, whose daily broadcasts urged Hutus to kill the Tutsi "inyenzi" or "cockroaches".

The ICTR has asked South Africa, Botswana and Senegal whether they would be willing to take on ICTR cases. So far Rwanda has been the only African country to have made it clear that it would gladly accept such cases. Oosthuizen observed, "The ICTR will not transfer cases to jurisdictions that cannot ensure that trials are conducted in accordance with international human rights standards. Largely due to capacity constraints, it is unlikely that the ICTR cases will be transferred to African countries other than possibly Rwanda.

"Although it is not ideal to hold the trials far from Rwanda, some European countries, including Norway, have thus far responded positively to the ICTR prosecutor's request to conduct transferred ICTR trials." However, Oosthuizen said the question of whether to transfer ICTR cases to Rwanda or any other national jurisdiction goes beyond the critical issue of whether the trials will be conducted in accordance with international human rights standards.

"Such trials are terribly complex and expensive," he said. "To ensure the passing of relevant legislation, the attendance, safety and support of witnesses, the proper detention of accused and their later imprisonment where relevant, the hiring of specialists, including interpreters and legal advisers etc, is no simple feat. "Few national court systems have spare capacity to take on such trials. So there is the issue of fairness and the issue of capacity. A lack of capacity may result in an unfair trial."

Some analysts argue that, aside from the cost issue, it is unwise to try these cases in European countries, far from where the genocide occurred. "It could be a case of Africa not wanting its dirty laundry to be washed in Europe," said Viljoen. Oosthuizen said there is a misperception in some circles, often wilfully spread and strengthened by dictators everywhere, that international criminal justice is somehow a western or foreign fad. "Putting ICTR accused on trial in Europe does not help to counter such misperceptions. But holding such trials in the country where grave atrocities were committed offers no automatic guarantee either," he said.

The Rwandan government, with funding from the EU, two years ago completed the building of new court facilities in which to hear ICTR cases. But there is as yet no clarity on what will happen to the ICTR's outstanding cases when the court winds up its trials at the end of next year, and all appeals two years later.

About the Author: Stephanie Nieuwoudt is a South African journalist based in Nairobi who regularly reports from Rwanda and Arusha.