EXECUTIVE SUMMARY AND RECOMMENDATIONS
There are just
over five years left for the International Criminal Tribunal for Rwanda (ICTR)
to complete the mission conferred upon it by the United Nations Security
Council in November 1994. The Tribunal is halfway through its mandate, and in
the past eighteen months, a number of new trials have begun. However, despite
significant improvement and a marked increase in activity, the Arusha Tribunal
has not established the judicial priorities that will enable it to fulfil its
mandate before 2008. Just over a year ago, ICG published its first report on
the activities of the ICTR, The Rwanda
Tribunal: Justice Delayed. Unfortunately, the essential situation remains.
Five cases of
utmost importance have been waiting a long time to be heard – one dealing with
the media, two involving the military, and two involving former ministers and
political party leaders. These trials are crucial to revealing important truths
about the preparation, launch and execution of the Rwandan genocide in 1994.
The media case is the only one that is actually underway. The first military
case, that of Colonel Theoneste Bagosora, who is suspected of being one of the
masterminds and organisers of the genocide, opened in a strictly symbolic
fashion on 2 April 2002 but will not properly start until September. None of
the other three cases are on the tribunal calendar, and they seem unlikely to
be heard for a year.
While the debate
on the future of the institution goes on, the tribunal cannot ignore the
ticking of the clock. Using current systems, the ICTR will not be able to
complete its work in the given time. There are two internal obstacles to this.
The first is the overly ambitious prosecution plan drawn up by the office of
the Chief Prosecutor, Carla Del Ponte, as well as the lack of preparation by
the same office in certain cases. The second is the lack of effective reform
that is necessary to speed up proceedings.
The Chief
Prosecutor and the judges must address these issues as a matter of priority if
they want to fulfil the mandate given to them by the international community
and for which they are responsible. The ICTR should redouble its efforts and
relaunch initiatives for a rapprochement
with Rwandan society. It should produce a realistic judicial calendar, which
meets its mandate and is sensitive to the political environment. Unless this is
done, confusion and obstruction will threaten the Tribunal’s mission and reduce
its impact on the political reconstruction of Rwanda and the region to zero.
At the same
time, not one case has been brought after eight years against members of the
Rwandan Patriotic Army for grave violations of human rights allegedly committed
on the territory of Rwanda in 1994. There has been no cooperation at all from
the Rwandan authorities on these matters. The reluctance and refusal of the
current government in Kigali in relation to these cases is the reason for the
unprecedented crisis that has existed since June 2002 between the ICTR and
Rwanda. The Rwandan government must honour its obligations to cooperate with
the Tribunal and stop all forms of obstruction – such as the restriction of
access to witnesses living in Rwanda.
In future, the
tension between the Tribunal’s need for cooperation with the government of
Rwanda and the independence that is essential to its mandate is likely to
worsen. Passive, defensive or short-sighted responses, as have been made
recently, will only weaken the Tribunal and make it a prisoner of its own
contradictions and of the interests of the Rwandan government.
The ICTR should
not face alone the upcoming period, which will be highly sensitive politically.
It is crucial that the international community, and the members of the UN Security
Council in particular, give strong and unambiguous support if they want to
ensure its credibility and independence. More than ever, they must show their
determination not to allow the Arusha Tribunal to be the poor cousin of
international justice. In this context it is unfortunate that the UNSC
delegation did not visit the ICTR in its annual trips to Central Africa in 2001
and 2002. This sent a dangerous signal of disinterest about the mission of the
UN Tribunal and its role in ending the crises in Congo and in Burundi.
The Tribunal
must give absolute priority to its core task, punishment for genocide, but it
should not ignore the rest of its mission and become an instrument of victors’
justice. The current Rwandan government cannot claim to support reconciliation
and an end to impunity while blocking cases involving its own troops. Whatever
its domestic electoral agenda and the uncertainty of its political base, to
respond in this way to crimes allegedly committed by its own soldiers is not in
the long term interests of the government and the country.
In terms of
attempts to resolve the crisis in the Congo, in which the Rwandan government
has demanded the arrest of génocidaires
on Congolese territory for the past four years, it is paradoxical that just as
the DRC government agreed to open an office to assist ICTR investigations in
Kinshasa in response to international pressure, the Rwandan government decided
to paralyse the work of the Tribunal. In the Congo war, it is clear that the
two states have toyed with international justice: the Democratic Republic of
Congo has supported armed groups led by criminals and scoffed at its
international legal obligations, while Rwanda has used punishment of genocide
to legitimise its military actions. The only way to end the politicisation of
justice is to require of both states respect for their international
obligations and cooperation with a reformed and credible Tribunal.
RECOMMENDATIONS
To the Office of the Prosecutor of the ICTR:
1. Review
the prosecution schedule and drastically reduce the number of trials for
genocide to around 100 in order to enable the Tribunal to meet the 2008
deadline for completion of its work.
2. Concentrate
efforts on preparations for priority cases against the military and political
figures.
3. Immediately
fill the posts of deputy prosecutor and chief of prosecutions.
4. Finalise
indictments against elements of the Rwandan Patriotic Army.
To the Judges of the ICTR:
5. Set a date for the political and military cases and give clear and strict schedules
to the parties.
6. Increase
control of the preparatory phase of the cases and of the proceedings, and use
available mechanisms to reduce the length of trials.
7. Organise judicial field trips to Rwanda in respect of ongoing trails.
To the Registrar of the ICTR:
8. Ensure
the rapid training of simultaneous translators in kinyarwanda and make them
available in all the courts.
9. Revive
initiatives to reconcile Rwandan society with the judicial process, including
by promoting the permanent presence in Arusha of representatives of Rwandan
survivors and human rights groups, visits by Rwandan law students and
judiciary, and the production of information programs for radio and television.
10. Inform
and explain fully the nature of and limits to the system of witness protection
and the conditions for witnesses before the Tribunal at Arusha.
To the Government of Rwanda:
11. Respect
legal obligations to cooperate with the ICTR, especially in relation to
investigations of crimes allegedly committed by members of the Rwandan
Patriotic Army, and end all efforts to obstruct the Tribunal, such as by
blocking the appearance of witnesses, without whom justice cannot be delivered
to the victims of genocide.
To countries
harbouring suspects wanted by the ICTR, in particular the Democratic Republic
of Congo, Congo-Brazzaville, Gabon, Kenya, France and Belgium:
12. Immediately
and unconditionally cooperate with the ICTR to support the arrest of indictees
and suspects on their territory.
To the United Nations Security Council:
13. Pass an urgent resolution demanding that the Democratic Republic of Congo and
Congo-Brazzaville, on the one hand, and Rwanda, on the other, cooperate with
the ICTR, and vote without delay to provide ad
litem judges for the Tribunal.
14. Affirm
strong political support for the Tribunal that the UN Security Council
established so that it can carry out its mission totally independently, and
include the Tribunal in the next UNSC tour of the Great Lakes.
To the member states of the UN, donors to the ICTR and the
government of Rwanda:
15. Give financial support to the ICTR
through voluntary contributions for the development of reconciliation and
information programs between the Tribunal and Rwandan society.
16. Include the arrest of suspects on their
territory as one of the conditions that must be fulfilled by the DRC and
Congo-Brazzaville in order to receive international aid.
17. Press the Rwandan government to cooperate
with the ICTR over investigations into the alleged crimes of the RPA in 1994.
18. Find, promote and put forward candidates
for judges who have clear, solid and recognised experience in criminal matters.
19. Promote and accelerate investigations and
trials against Rwandan genocide suspects
on their territory.
Nairobi/Brussels 1 August 2002
