A Report on the International Criminal Tribunal for Rwanda
BY Shardul Singh
Rwanda is small hilly and densely populated African country surrounded by rivers and lakes. It is said that god comes to rest every night in this beautiful country.
In Rwanda three ethnic communities live, Hutu,Tutsi and the Twa. Rwanda was a colony of Belgium. They severally segregated the population of Rwanda into three ethnic communities. Belg regarded Tutsis to be more educated, taller and having a lighter skin colour. Hutus are the majority tribe. Twa constituted a very small minority.
The International Criminal Tribunal for Rwanda was established at Arusha, Tanzania in November 1994 by the Security Council acting under Chapter Seven of the UN Charter. Genocide in Rwanda took place between 6th April 1994 and 17th July 1994 after the plane of the former President of Rwanda was shot down. Military effectively took control of the country and committed mass scale murders. One estimate says that 500,000 people were massacred in three months
Apart from being beautiful Rwanda is also a country with the most well organized administrative setup in comparison to the rest of the African countries. It has Prefectures (Provinces), Districts which are divided into Secteurs. Each Secteur is further divided into Cellules. Cellule is the smallest administrative unit in the country which implements governmental policies at the grassroot level.
Since I have been working with the OTP (Prosecution) and coming from a legal background, I would keep my article on the legal side rather than on the political, however there are areas where International Politics does have its impact on the working of the Tribunal. I would discuss Political factors as briefly as possible.
Principal Organs of the UN ICTR
1. The Registry- It assists the judges. It is also the place where all the filling of documents and signing and sealing of the documents is done, much like in India, it also performs certain administrative functions.
2. The OTP-Short for Office of the Prosecution. Office of the Prosecution decides which perpetrator is to be indicted. Since OTP selects the targets, it becomes a very important organ of the UNICTR
3. The Chambers and the Appeals chambers
A) OTP (office of the Prosecution)
The Head Prosecutor is Mr.Justice Hassan B Jallow , from the African nation of Gambia. He is the headmaster for all the other Senior/Assistant Trial Prosecutors. He represents the prosecution and reports its progress to the Security Council and the General Assembly
The OTP is divided into small trial teams headed by a Senior Trial Prosecutor which has an investigator. Translators are provided to translate documents from Kinyarwanda to English and French.
Prosecution has good resources at its disposal when compared to Defense. Prosecution has investigators in Kigali which interview witnesses. Their task may also extend to collecting relevant documents from the Gacaca courts in Rwanda and other normal Rwandan courts. Based on the decision of the office of the Prosecutor, investigators focus their attention on obtaining evidence and witnesses against the accused.
My observation has been that some times investigators snub the witness from giving evidence against many other people purely because they were told to concentrate against a certain accused. This leads to huge chunks of information missing from the chain of evens, making the courts task very difficult.
B).Defense
I have been fortunate to come across Lawyers working for the Defense who have impeccable careers in their municipal jurisdictions and they are masters of criminal law to say the least.
Defense has its own investigators which are not on the pay roll of UN-ICTR; these investigators are on the look out to collect evidence to contradict the prosecutions case.
Defense is also paid by the UN-ICTR depending upon the number of hours put in by them, but they are not a part of UN-ICTR. They do not have an access to the huge collection of documents in the data bases provided to the Prosecution.
There are times when the defense depends on the Prosecution’s office to provide them with certain documents. I humbly submit that, if the defense is also allowed to reach these archives it would better serve the cause of Justice
C).Court Practices
i) The trial in the court rooms remain much like the way trials are conducted in India. Exchanges have to be much slower since the court is working in three different languages simultaneously. The rules of Procedure and Evidence are very similar, if not exact, to the Code of Criminal Procedure in India.
The interesting aspect of the trial is the blend of both Civil law and Common law practices. Some Civil law Judges will aggressively takeover the role of the Prosecution or the Defense during Examination in chief or Cross Examination. Common law Judges act like umpires whereas the Judges from Civil law countries will be active players along with being a referee.
At the UN-ICTR elements of both Civil Law and Common Law systems find themselves in the court room since Judges from both these system constitute a bench.
ii) Quick disposal of Cases- The Tribunal has been extremely good when it comes to disposal of cases inspite of the fact that in a single accused case, there may be more than 25 witness on the either side of the court room. The reason for that is that the same bench sits for the entirety of case’s duration, without breaking. This means courts hears and records evidence without frequent adjournments.
After the prosecutions case is over six weeks are given to the defense to prepare its case.
Criticism of the Tribunal
a). I was deeply privileged to exchange views with Prof. Lennox Hings , the Lead Defense council for Colonel Ephrem Setako
According to him, Justice was not done by the Trial court in the Media case where Barayagwiza was detained for a long period of time without any specific charges being brought against him.
It is a human right violation since he could not defend himself. He was not told the grounds for his detention, making his detention illegal. The Appeals Chamber acknowledged that fact and held that under such circumstances no fair trial can take place and Barayagwiza should me released. Before Barayagwiza could be released the Rwandan Government threatened the Tribunal by saying that it would if Barayagwiza is released we will shut down the Prosecutor’s office in Kigali and we will not allow any witness to appear before the Tribunal. The Appeals Chamber took a complete U-Turn and decided to try Barayagwiza. They would adjust the number of days illegally spent in the prison with the total sentence, if found guilty .
This clearly shows how Political considerations play a large role on International Criminal Tribunals
Prof. Hings gives another reason why Judges cannot remain independent. Judge have been sitting for a long duration of time and have various cases. Judges have made findings of fact for e.g. was the genocide actually committed etc; same question may crop up successive trials. Judges, in short, are unable to put on the blinders.
What is more troublesome is that the Judges have heard same witnesses in successive trials. It becomes very difficult for them to start afresh when it comes to attaching weight or ruling on the credibility of the same witness.
b). Effect of Gacaca courts-Gacaca has contributed in a major way to the court room confusion at the Tribunal. Gacaca is a system of courts in Rwanda which convicts people for Genocide at the Cellule level; there is Gacaca court at the sector; and one for appeal at the level of each remaining sector . Popular Judges are elected by the people who are often illiterate and lack legal education .These courts sit weekly. They don’t have any specialized procedure .It will not be wrong to say that it is an informalized way of sentencing.
There were tens of thousands of suspects who were awaiting trial in the prisons, and so Gacaca was seen to be cheap and effective to deal with the volume of cases. There may be over 1,000,000 cases to try .
Gacaca doesn’t recognize suspect’s right to defend himself or the right to prompt trial . Gacaca has enormous sentencing power as well. It can award life imprisonment without testing the veracity of the accusation . I remember a witness being sentenced to 30 years in 30 minutes by Gacaca, for merely lying.
What is most surprising is that no judgment is handed down to the convicted person nor are any reasons given for convictions. I have come across a witness who was sentenced by Gacaca in his absence! Appeal is allowed but the suspect doesn’t even know the grounds of his appeal!
How does it affect The Tribunal?
Often the witness’s credibility is impeached by confronting him with his Gacaca proceedings. It is the usual practice followed during the Cross-Examination of the witness. The idea is to confront the witness with the finding of the Gacaca but if the Gacaca proceedings are faulty in the first place then, wood for the trees is lost. Tribunal cannot effectively dispense justice.
Conclusion
There is inherent weakness with these International Courts. They are far from reality and depend on the states for co-operation. UN-ICTR and UN-ICTY alone cost about 20 percent of the total budget of the United Nations and so there is an added pressure on these Ad-Hoc Tribunals to complete their mandates.
Hybrid courts have lesser problems and function more smoothly. They are Municipal Courts with international participation for example Special Court for Sierra Leon.
UN-ICTR has convicted over 35 high profile suspects of Genocide. It is the only International Tribunal which has convicted Head of a State and continues to try high ranking officials and ministers who planned and perpetrated the killings of innocent people.
UN-ICTR has undoubtedly contributed richly to International Criminal Law. Jurisprudence evolved by the Tribunal will form the foundations of International Criminal Court.
