Global Policy Forum

By Stephanie Nieuwoudt*

Analysts say other international courts may find themselves facing claims after the Rwandan tribunal decided to pay compensation to an acquitted defendant who was denied legal representation early in his trial.

The decision of the Rwandan war crimes tribunal to pay compensation to an acquitted defendant could have serious implications for other international courts. Following a January 31 ruling, the International Criminal Tribunal for Rwanda, ICTR, is to pay Andre Rwamakuba, a former minister of primary and secondary education in Rwanda, 2,000 US dollars for failing to provide him with legal representation from the time he arrived at the tribunal in October 1998 until March 1999. Rwamakuba was found not guilty last September of all the charges brought against him in a trial at the ICTR, the court set up by the United Nations to try those accused of being involved at a high level in the Rwandan genocide of 1994. He was tried for genocide or complicity in genocide, and extermination and murder as crimes against humanity.

According to ICTR spokesperson Everard O'Donnell, Rwamakuba's lawyer filed two compensation requests, relating to miscarriage of justice and the court's initial failure to provide counsel. The ICTR's Trial Chamber dismissed the wider claim of compensation for a miscarriage of justice, on the grounds that this was not supported by customary international law.

Ntombizozuko Dyani, a law lecturer at the Law School of the University of the Witwatersrand in Johannesburg, who previously served as an intern at the ICTR, believes this award will have repercussions for other international courts. "The chamber's decision could likely have implications on other tribunals such as the ICTY [International Criminal Tribunal for the former Yugoslavia] and others, as the trial chamber has set an important precedent for adjudication of these matters in international law," said Dyani.

"Two things are clear: the decision could be binding in a scenario which factually resembles that of Rwamakuba. The chamber's decision conclusively explains that the practice of granting orders to financially compensate those whose rights have been violated has attained the status of customary international law, which means this practice is binding on all international states and organisations. Therefore, there are definitely going to be some long term implications as a result of the chamber's decision." Mtendeweka Mhango, who works at the same law school as Dyani, added that the decision showed that human rights violations would not be tolerated "even if they are committed against an alleged perpetrator."

The award raised questions about where the money should come from - the ICTR's registry said there was no provision for paying compensation to indicted persons. The implication is that such provision will need to be made for the future. While the Trial Chamber acknowledged that it did not have explicit powers to grant financial compensation, it said that authority was implicitly conferred on it. Mhango said that individuals indicted by international courts enjoyed international human rights that must be respected. These rights include redress, including financial compensation, when the system failed.

Very few compensation claims have been filed at the ICTR. In 2000, Ignace Bagilishema filed a claim for Euros 233,000 as compensation for being held in custody, including a 128-day period after his acquittal in which he was allegedly confined in a guarded house in Arusha. The claim was rejected. Also in 2000, the UN Security Council indicated that it would introduce a system of compensation for individuals who had been wrongly convicted. But it has yet to do so.

O'Donnell told IWPR that while there have been no further claims against the ICTR since the ruling on the Rwamakuba case, "I am sure there will be lots of applications coming. I am always suspicious of 'floodgates' reasoning, but I would expect everyone to jump on this one, and not just here [at the ICTR]. I am sure that in other tribunals, and other UN organs, the decision will become the favourite citation."

Although, as O'Donnell indicated, there is a strong possibility that others will follow suit, Dyani pointed out that each case will be judged on its own merits. "This will be done on a case-by-case basis, depending on its own circumstances, taking into account the subject-matter as well as the nature of the right allegedly violated," she said. "It should also be noted that it is one thing to bring a complaint, and quite another for a complaint to succeed." Dyani added that since it requires "enormous resources" to bring a complaint against an international tribunal, this is likely to deter many potential claimants.

According to the ICTR press release on Rwamakuba's acquittal, the Trial Chamber was "convinced that the testimony of prosecution witnesses was mainly indirect and hearsay evidence, and undermined by significant credibility and reliability issues." The chamber heard testimony from defence witnesses, including Tutsi survivors, that the accused was not present at the scene of the events in question and was not involved in the killings he was accused of participating in.

In acquitting Rwamakuba, the Trial Chamber also found that the prosecution had not properly pleaded the charge that Rwamakuba failed to dissociate himself from the government of which he was a member or to denounce its crimes. After the 1994 genocide, Rwamakuba fled to Namibia, where he was arrested in October 1998. At the ICTR trial, he was far from a willing participant, boycotting proceedings from the day it started and refusing to appear in court, saying that the indictment against him was unjust. O'Donnell said a host country is now being sought where Rwamabuka can live in political asylum, but that so far no country has agreed to take him.

"He is still under the protection of the ICTR, as long as he conforms to the requirements made by the ICTR that he live in secure accommodation," he added. "There are UN personnel and Tanzanian personnel protecting him and other acquitted persons." O'Donnell said that Rwamakuba remains under ICTR protection because he has no formal status in Tanzania pending his relocation, and because "the Tanzanian authorities expect us to exert some control over the acquitted persons so that their presence here does not become a problem for the Tanzanian authorities".

He added, "There is a security threat to some acquitted persons and some of them have realised it and asked us to protect them. We have put in place a security plan for them, and what is good for one is good for all." Individuals acquitted by the ICTR may have reason to fear they would be at risk if they return to Rwanda. In February 2004, for example, thousands of enraged protesters took to the streets of the capital Kigali and in Cyangugu, in southwest Rwanda, after news broke that Andre Ntagerura and Emmanuel Bagambiki had been acquitted by the ICTR. Both were natives of Cyangugu.

The Hirondelle News Agency reported that civil leaders as well as genocide survivors made speeches during the demonstrations denouncing both the ICTR and the acquitted men. The ministry of justice sent out a communiqué "categorically denouncing" the acquittals. Observers noted that there was still a huge divide between the Tutsi and Hutu communities in spite of efforts to heal the wounds of the genocide.

In a report published in January 2007 by Human Rights Watch, the New York based organisation expressed concern about continuing animosity between Hutus and Tutsis. In two violent incidents at the end of last year, a number of people were killed. It is clear that in spite of the official line that all is well in this beautiful hilly country, ethnic tensions in Rwanda are simmering just below the surface. It is therefore understandable that acquitted persons may be reluctant to return to their homeland.

About the Author: Stephanie Nieuwoudt is a South African freelance journalist based in Nairobi who reports for IWPR Africa on the ICTR trials in Arusha.