Despite periods of pre-trial detention that are three times longer than at the ICTY, the ICTR has never resorted to provisional release. On 8 April 2002, six days after the highly theoretical start of his trial, Colonel Théoneste Bagosora asked to be granted provisional release. Two weeks earlier, General Augustin Ndindiliyimana lodged a similar request before the same International Tribunal for Rwanda. Although the form, context and arguments of each motion were different, they are both part of a common and unequivocal legal precedent: the ICTR has never granted provisional release to any defendant awaiting trial.

The Contrast Between the Two Tribunals
The Arusha tribunal hates being compared to its sister institution, the International Tribunal for the Former Yugoslavia. Clearly, over the years, such a comparison has become less and less favourable. The difference in approach taken by the two courts regarding pre-trial detention and provisional release has increased significantly in the past two years.
The longest period of pre-trial custody recorded at the ICTY is that of Radoslav Brdanin, whose trial began on 24 January 2002, after two and a half years\' imprisonment. At the ICTR, four accused - Théoneste Bagosora, Anatole Nsengiyumva, Joseph Kanyabashi and Elie Ndayambaje - spent nearly six years or more in jail before their trial opened. More than fifteen other defendants have been, or will have been behind bars for at least four years before going to trial. Most people agree that the situation is caused by slow procedures and malfunctioning at the tribunal. But it can also be observed that the two courts take a radically different approach to the question of pretrial detention and its corollary, provisional release.

Over the last few years, the Hague tribunal has increasingly resorted to the provisional release, subject to conditions, of accused awaiting trial. Since the creation of the ICTY, twelve detainees have been granted provisional release, including ten since April 2000. This pendulum swing was helped by the reform of the ICTY rules of procedure in November 1999, when the judges modified an article granting provisional release only in « exceptional circumstances ». The change was in line with recent legal progress; in the same month, the European Court of Human Rights found France guilty of excessive pre-trial custody (since then, in June 2000, France set a maximum four-year limit).

Bagosora\'s Record
At the ICTR, Article 65 of the rules of procedure has never been revised. Its position was made even clearer in February 2001 when a trial chamber ruled, in the case of Joseph Kanyabashi, that five years and eight months of pre-trial detention « is within acceptable limits » and « is in conformity with the interests of justice », the magic words used by lawyers when they have run out of arguments. Should we be talking about a « culture of detention » in Arusha, as denounced in October 2001 at The Hague by Judge Robinson, who found himself in the minority over a request for the release of Momcilo Krajisnik? The recent motions by Théoneste Bagosora and Augustin Ndindiliyimana have thrown the issue back up for discussion. Despite their differences, the cases have become symbolic.

The lawyer for Colonel Bagosora, Raphael Constant, is basing his argument on the principles of law governing « civilised countries ». That is to say, the right to be tried within a reasonable period and the fact that « detention is the exception, freedom the rule ». He argues that, after over six years in prison and, in his view, an eight-year investigation, the prosecutor is still not ready to try his client, as demonstrated when the trial, which opened in highly symbolic fashion on 2 April, was adjourned until September. Constant is « certain that Mr Bagosora will not know his legal fate in less than eight years after his imprisonment, » and concludes that « justice has never taken so long to give a ruling on a trial ». To wit, « we only need to mention the trial of the perpetrators of Nazi Germany in Nuremberg, the Japanese perpetrators at the Tokyo trial or what is happening before the ICTY. » The « complexity of the Rwandan affair, » he maintains, does not justify such delays. Nor does the behaviour of his client, who has never been opposed his trial.

Discrimination?
The Martinique lawyer castigates the UN court\'s rules that allow provisional release « only in exceptional circumstances, after hearing the host country and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person. » For Raphaël Constant, such a restrictive framework constitutes « legal regression ». He questions why there should there be such a stark difference on the issue between the two courts, adding: « It is surprising that in such closely-linked matters, trying crimes against humanity, such unfavourable discrimination against Rwandan citizens should exist. »

However, provisional release requires offering certain guarantees and a country of residence. All the ICTY accused that were granted this shared a common characteristic: they gave themselves up. But above all, their respective countries - Serbia, Croatia or Bosnia-Herzegovina - were all willing take them in and to be responsible for them and to comply with the strict conditions laid down by the judges. Who would agree to take responsibility - both financial and with regard to security - of a Rwandan accused of genocide, whom the host country was able to rid itself of by handing him over to Arusha? Counsel Constant implicitly admits to the limitations on what he can offer, which is why he stipulated that the court should hear the host country of choice of his client - The Netherlands - where Théoneste Bagosora\'s close family reside.

The Black Method
The case of Augustin Ndindiliyimana might appear simpler. Imprisoned for over two years, the General was granted the status of political refugee in Belgium, after a long battle, and the start of his trial has not even been set. Despite this, his lawyer decided to plead his motion in a provocative manner, denouncing the lack of evidence to support the accusations made by the office of the prosecutor. Christopher Black\'s motion is in stark contrast to the sober and legalistic approach taken by Raphäel Constant, or to that filed a year ago by lawyers representing Joseph Kanyabashi, which remains the most detailed to date. The Canadian lawyer, who is also a member of the international committee for the defence of Slobodan Milosevic, went beyond a simple request for provisional release. He called for the total withdrawal of charges against his client and demanded compensation for damages suffered - no less than 5 million dollars. He has even asked for an enquiry into the reasons that led to the « false accusations » and to the « unfair detention ». On such a political and polemical basis, it is unlikely that the case will allow the court to take a fresh look at the serious issues of detention on remand and provisional release.

A Dependent and Forgotten Court
However, other factors doubtless explain the reticence of ICTR judges and their reluctance to seriously address these issues. « The main problem is that the ICTR is very dependent on the goodwill of the Rwandan government. It is clear that it would not be happy if the detainees were released before their trial. The ICTR should adopt a more independent attitude vis-à-vis *the government+. But the issue goes beyond that; it relates to the relations between Rwanda and the *UN+ Security Council. And unfortunately, the Security Council has shown a desire not to bother them, » analyses a prosaic Richard Haadvisto, representative of Amnesty International in Kampala.

For his part, François-Xavier Nsanzuwera, secretary general of the International Federation of Human Rights (FIDH) and expert witness before the ICTR, points out that the Arusha tribunal, unlike the Hague court, has never been subjected to the scrutiny of international public opinion, and in particular, of human rights organisations. « The FIDH has no position on the matter. I have been trying to set up a mission on the ICTR for a year now, but it has always been postponed. Arusha is very far from Paris and doesn\'t interest many people - much less than the ICTY, » he openly admits. He added, just as honestly, « I don\'t see which defendant could actually be granted provisional release at the moment. » Seen from this angle, it appears unlikely that officers Bagosora and Ndindiliyimana will share the same fate as the three Bosnian generals - Alagic, Hadzihasanovic and Kubura, who were granted provisional release by the ICTY in December 2001, less than six months after their arrest.