On 30th April, the new Amnesty International report on the ICTR was published. The main themes covered by the human rights organisation (citing the demanding yardstick of international law) are : delays in trials and procedures, respect of the Tribunal's mandate and rules, protection of and access to witnesses, detention and rights of the accused. In search of lost rights

Must we put up with outraged (if not trivial) responses from the ICTR, condemning some plot hatched by dark and evil unknown forces, every time a report is published on its work ? A report whose, dare we say 'constructive' justification, is obviously that of highlighting the Tribunal's deficiencies and dysfunctional aspects. « It is fashionable in some quarters to denigrate and distort the efforts of the International Criminal Tribunal for Rwanda, to wilfully suppress the achievements it has recorded in the most challenging conditions and under new senior management through the hard work of dedicated staff, and to draw invidious comparisons with national domestic machineries of justice and the Yugoslavia Tribunal in The Hague, which is operating in a different environment that dictates its own approach to various aspects of its mandate. To the extent that Amnesty International has joined this bandwagon, the Tribunal finds it a matter of regret ». Thus did the Tribunal defend itself against the critical remarks made by Amnesty International in a voluminous new report published on April 30th. The tone was much the same as that of ICTR's written answers when the second « Paschke report » was published - betraying the siege mentality of an organisation ill at ease with itself. Let's return to the facts, however complicated or controversial they may sometimes appear.

In the service of the law

The principle put forward by Amnesty International is clear : « A court created by the UN must be expected to abide strictly by all the highest standards laid down by the UN itself ». It is by this yardstick that the international human rights organisation has striven to observe the ICTR in its recent report. Amnesty International notes that « while the Tribunal has overcome a difficult beginning and the first trials have commenced, there are still many shortcomings which are of serious concern. (...) Notwithstanding the objective difficulties faced by the Tribunal, Amnesty International was astonished at the poor management of aspects of the Tribunal's judicial process. A court is not like any other UN bureaucracy or operation - it requires rich experience of administering criminal trials. The lack of experience in running a court have led to inefficiency and confusion, unacceptable delays and in at least one case breach of confidential information. Amnesty International is also concerned about the apparent disregard in some instances by the OTP [Office of the Prosecutor], Registry and even judges, of the Tribunal's own Rules of procedure and UN standards on the rights of detainees and accused ».

Reducing pre-trial detention time

First, the delays. The report stresses that some defendants have been imprisoned for more than 30 months, if their detention before transferral to Arusha is counted. « While there may not be any simple solutions to these delays, they are certainly exacerbated by the Tribunal being in recess for more than three months during 1997. » Amnesty deems this simply « inexcusable », and wonders whether, at this rate, « trials of accused detained in Arusha may not commence for several years ». To support this observation, the Londonbased human rights group recalls a statement from the UN Human Rights Committee, regarding a murder trial in Panama, which revealed that the delay between the indictment and the trial « cannot be explained exclusively by a complex factual situation and protracted investigations ». In his reply, the Registrar preferred to lean on the context within which the ICTR is working, to support his assertion that : « It is necessary, given the magnitude of the crimes under the Tribunal's juridiction - genocide, crimes against humanity and violations of Article 3 common to the Geneva Conventions - to weigh the need to apprehend the accused persons at the earliest opportunity and comence the legal/judicial processes (which often has several initial steps before the commencement of the trial proper), against the possibility of the accused individual eluding justice completely ».

Immediate court appearance

Regarding procedure and the respect for defendant's rights, Amnesty International identifies long delays between the defendants' transfer to Arusha and their initial appearance before a judge. Usually, this procedure, considered as a « basic safeguard against illtreatment », must be carried out « without delay ». Amnesty International recalls that the UN Human Rights Committee has laid down that this delay « must not exceed a few days ». The report notes, however, that the actual delay has been several weeks, in many cases. The example of Alfred Musema is one of the most problematic in this respect (see Ubutabera n°29). The former director of the Tea factory in Gisovu waited six
months before his initial appearance, which had been postponed twice because there was no defence counsel. Amnesty notes the financial quarrel between the counsel and the Tribunal, but adds that « the appearance of Musema before the Trial Chamber should not have been delayed pending the settlement of such a dispute ». Especially as the accused finally appeared in court without a lawyer : « In this case, not only has there been a violation of the Rules of Procedure in regard to appearance without delay, but also a violation of the right of the accused to counsel ». Amnesty points out that the Registrar had explained that delays were often due to the time required to assign a defence counsel and then for the lawyer to arrive in Arusha. This did not satisfy the human right organisation, which proposes the establishment of a « duty counsel » system, in which a lawyer is appointed temporarily to defend a defendant's rights while another is being assigned. Thus the « accused who are transferred to Arusha should make their first appearance before a judge no later than a few days after their transfer and should not be required to wait until their 'initial appearance' when they are required to plead to the charges ».

Hearing of motions : « inexcusable » delays

Delays again, but this time in connection with the hearings of motions. Two cases are especially highlighted by Amnesty International to censure the deadlines within which motions are heard. One of them is well-known : the abortive hearing of the defence witnesses at the Tingi-Tingi camp (in the former Zaire) in the Rutaganda case. Heard almost three weeks after it was filed, this motion became obsolete as the refugee camp in question was destroyed and the defence thus lost the opportunity to hear 16 identified witnesses. Since then the judges and the Registry have been accusing each other of being responsible for this fiasco, with its very serious consequences. The story of Jean-Bosco Barayagwiza and Laurent Semanza's detention in Cameroon is less notorious. These men, arrested in March 1996 but held on the basis of an ICTR order since March 3rd 1997, filed motions through their then lawyer, on 29th September of the same year, demanding their immediate release. Indicted on 23rd October and transferred to Arusha on 20th November, the accused saw their motions become moot, but according to Amnesty, the motions should have been heard immediately after they had been filed. Again, the registrar told Amnesty that the judges had failed in their duty. « A judge of Trial Chamber 1 indicated that they were not sure whether the Tribunal had jurisdiction to hear the motions. This uncertainty seemed to be the reason for the delay. It is unacceptable for judges only to discuss the issue of jurisdiction in the corridors of the Tribunal instead of hearing the motion as a matter of urgency. The issue of jurisdiction could have been resolved during the hearing. In national courts such applications are heard urgently, often in the middle of the night or during weekends if necessary ». The report judges the delay « inexcusable ». The gist of the recommendations made on the subject can be found in the recently-finalised « court management » directive.

Impartial investigations

Moreover, Amnesty inspected the work of the Office of the Prosecutor. The prosecutor's strategy of organising joint trials is welcomed. However, the report does note that « experience in national courts shows that it is often notoriously difficult to prove that many accused in a large trial acted together in a conspiracy or joint entreprise ». It happens, in this case, that the ICTR judges  rulings have already shown up this difficulty. On this point, Amnesty considers that « vigilance by the judges is necessary ». However, the subject that the report highlights with more intensity is the investigations into the violations committed by the RPF (Rwandan Patriotic Front) now in power in Kigali. Although it notes that the appointment of Bernard Muna « seems to have resulted in improvements in the OTP's relationship with the government », the report feels that « the real test for the relationship between the Tribunal and the Rwandese government will come when the OTP begins prosecuting abuses committed by the RPF during 1994 ». Pointing to the ICTR's mandate, Amnesty stresses that the obligation is to investigate into, and begin legal proceedings regarding both the violations committed by the RPF and the former government. « Given the scale of the genocide, it is appropriate for the OTP to accord a high priority to investigating crimes committed by the former government of Rwanda and its associates. (...) Nevertheless justice must be impartial ; it must be done and seen to be done for all, regardless of who the victims or perpetrators are ». According to Amnesty, « the failure of the OTP to initiate cases against members of the RPF has had at least two major consequences » : an increasing difficulty in gathering evidence and the « impression given that the Tribunal is only interested in judging one group of perpetrators ».

Improving witness protection

The issue of witness protection is inevitably raised in the report. Aligning itself directly behind the « Paschke 2 » report, Amnesty recommends the recruitment of staff experienced in the field, pointing out that « while the process of protecting witnesses at the Tribunal is different from protection of witnesses at national level, much can be learnt from national witness protection programs in various countries », like the USA, Italy and Australia. In a clearly more practical way, Amnesty notes that « the procedure demanded by the Rwandese government to enable witnesses to travel to Arusha from Rwanda makes it impossible to protect the identity of witnesses and to prevent possible repercussions on their return. They are required to register at different administrative levels, cellule, secteur, commune, préfecture and national, within Rwanda and to complete departure forms providing details of their names, residential addresses, destination and reason for travelling, at the airport. These procedures expose witnesses to serious and unnecessary risks. Witnesses are also required to apply for temporary travel documents from the Rwandese authorities. Thus the details of the witnesses, their reason for travelling and their destination becomes known to several officials and civil servants and could possibly be acquired by other individuals ». On this issue, Amnesty reveals that the Registrar has explored the possibility of having the witnesses issued with UN laissez-passer. « Unfortunately, UN officials have rejected such proposals ». Similarly, the report states that « the Tanzanian authorities have insisted that such documents reflect the ethnicity of the witness, although the Rwandese authorities have removed all references to ethnicity in their travel documents ». Henceforth, Amnesty recommends that negotiations with the Rwandan government be opened to modify existing procedures. The report adds that Kigali has asked that witnesses who go to Arusha return to the country. « Most witnesses choose to return to Rwanda. There may, however, be some witnesses who will not want to return to Rwanda as they risk being targeted. It would seem almost impossible in the current climate in Rwanda for defence witnesses to return without risk to their safety », it is explained, before the conclusion is given : « Some witnesses should be relocated to other countries ». A tightening up of safety measures in Arusha, the fitting of courtrooms with devices for scrambling voices and pictures and the organisation of a workshop on witness protection are the other recommendations made in this area.

The detention of Jean Kambanda...

The Amnesty International report came out the day before Jean Kambanda's initial appearance, and it condemns his long detention in a secret location. « All the documents at the Tribunal create the picture that Kambanda was transferred after his arrest to the Detention unit of the Tribunal in Arusha and that he is currently held there. However, since his arrest, he has been detained, except for a few days, outside the Detention unit of the Tribunal. Amnesty International is concerned that the holding of Kambanda in an unrecognized place of detention contravenes public court orders, the Rules of Procedure and international standards ». The report states that « it is an accepted principle of international law that detainees should be held only in officially recognized places of detention ». As this is « a basic safeguard against arbitrary detention, 'disappearance', ill-treatment and being compelled to confess ». From now on, regarding what it calls a « dangerous precedent », Amnesty adds : « It is clear that violating such a safeguard cannot be justified in individual cases by a faith in the sense of responsability of the prosecution and guards, that no harm will come to the detainee. The rule applies at all times ». Defending itself against accusations of having ignored the rules of
international law, the Tribunal gives no further arguments which would convince that the regulations had been respected, but it says that the International Red Cross did visit the prisoner.
...and Esdras Twagirimana's
A second detention problem is covered by Amnesty International, very much on home ground on this issue. This is the case of Esdras Twagirimana, who was arrested instead of Shalom Ntahobali and held in the ICTR prison for two months. The length of this detention after the mistake had been acknowledged, allied to the fact that this Rwandan had been refused the help of a lawyer, are the reasons why Twagirimana's detention is deemed unlawfull. The question of compensation is subsequently raised. As this is not provided for by the Rules of Procedure, Amnesty asks for the latter to be amended. The Tribunal's stance on this case is well-known. In his reply, the Registrar argues from the following basis : « Amnesty's account of this case misses the fundamental point that, contrary to Amnesty's allegations, Esdras Twagirimana was not detained by the Tribunal ». Pointing out the hesitations and requests of the « false-Shalom » and the procedures he undertook with the Tanzanian and Kenyan authorities and the UNHCR, the Registrar considers that « by requesting the Tribunal's assistance to work for the regularization of his immigration status, Mr Twagirimana was no longer detained under the authority of the Tribunal. The category of persons who are detained under the authority of the Tribunal - and thus fall within the Tribunal's rules and regulations - is not expandable at will. In comprises accused, suspects and witnesses, and no others ». Regarding compensation, the Tribunal refers to a ICTY precedent, in which the UN had replied « unequivocally that compensation by the United Nations was in these circumstances out of the question ».

Access to information

While warmly welcoming « improvements in the system established to assign defense counsel », Amnesty is nevertheless concerned by the repeated changes in the procedure applied and the « arbitrary aspects » seemingly still present in it. The indigent accused must now choose a lawyer from a list of six names drawn up by the Registrar according to « no clear » criteria. Amnesty International recommends that an accused should be able to choose from all the counsels registered on the ICTR list. Regarding public information, which it labels « confused and uninformed », the report criticises both the difficulty of getting access to public documents, and an inadequate system of protection of the confidential information contained in the Tribunal's documents. In reply, the Tribunal emphasises that « the quality, quantity and diversity of the products of the Press and Public Affairs Unit have been significantly improved », and announces the opening of the Tribunal's website in May.

State cooperation

Finally, Amnesty International calls for the States cooperation on the relocation of witnesses and the clarification of the status of defence witnesses, (who are often without valid papers and travel documents), so that they can give evidence to the ICTR. It also calls on the goodwill of African states, to receive people sentenced by the Tribunal for the duration of their prison term.