ICTR: 11 years, 3 months and 19 days

Four senior officers of the Rwandan army were convicted by the International Criminal Tribunal for Rwanda (ICTR) on 17 May for crimes committed during the genocide in 1994. But in the case of the former chief of staff of the Gendarmerie Augustin Ndindiliyimana, the sentencing clearly exposed the damage done by one of the tribunal’s worst failings: a preventive detention that went out of control.

By Thierry Cruvellier and Franck Petit, Paris

General Ndindiliyimana was found guilty of genocide even though the judgment acknowledged “his consistent support for the Arusha [Peace] Accords and a peaceful resolution of the conflict between the Rwandan government forces and the [Rwandan Patriotic Front] RPF and his opposition to the massacres in Rwanda.” He was then sentenced to “time served since he was arrested in Belgium, on 29 January 2000.” As a result, Ndindiliyimana’s sentence was 11 years, 3 months and 19 days.

Unprecedented and shocking

“This is unprecedented and this is shocking,” said Rwanda’s historian and Antwerp-based law professor Filip Reyntjens, who has often been called as an expert witness before the ICTR. “He is not given a sentence but the length of his preventive detention. This is not serious. This is an acquittal in disguise. Had he been acquitted, Ndindiliyimana would have spent the same time in jail.” Based on the available summary of the judgement, Reyntjens found it difficult to understand if the former general was actually found guilty or innocent. “The terms of the judgement seem very vague. It talks about ‘limited command’ [over the gendarmerie], not even of ‘command responsibility’. This is pushing it a bit far: he is convicted not because of his responsibility but for having failed to punish his subordinates. If what Ndindiliyimana is blamed for applies, we should convict thousands of sergeants and public officials in Rwanda.”

The reason why the case of Ndindiliyimana triggered reactions such as Reyntjens’ could already be heard at the time of the general’s arrest. The former senior officer was not in hiding in Belgium. Unlike well-known supporters of the Hutu Power ideology, he was granted political asylum and he was called as a witness before all major commissions of inquiry set up after the 1994 genocide, including in Belgium and France. “He was a professional military man, chosen because he was apolitical and because he supported the Arusha peace process,” explained Reyntjens. “The RPF itself considered it could associate with him and established contact with him” after the genocide, and “his arrest seemed to be a sanction for refusing to join the RPF.”

“He is not a hero. He only tried damage control. He didn’t oppose the genocide militia. But can refraining from sacrificing oneself be considered as guilt?”

Absurd
It took two years after the end of the trial for the ICTR judges to decide on the case. And on May 17, 2011, the parties were told to wait for another three weeks to get the details of their long-awaited reasoning. “We do not know yet the reasons of the judges,” said Ndindiliyimana’s lawyer Christopher Black. “He was found guilty of not disciplining young guys in two separate incidents. Judges said he had limited command, that he opposed massacres, and that he supported the peace process. It doesn’t make any sense to us. That’s why I say this decision is absurd.”

Upon conviction, Ndindiliyimana was immediately released. He was guilty and free. Thus, the court did not have to justify the long detention without judgement that the Rwandan officer had gone through. However, judges were suspiciously prompt to put an instant end to the general’s imprisonment. (His co-accused General Augustin Bizimungu was sentenced to 30 years, while commanders François-Xavier Nzuwonemeye and Innocent Sagahutu were sentenced to 20 years.)

Against this background, the case of Ndindiliyimana may prove to be the worst example to date of what the abuse of preventive detention at the ICTR can mechanically lead to: the impossibility to claim a fair trial and the temptation for the court to justify or cover up for its embarrassing record by deciding on convictions that subsequently justify the detention. The record is as follows: twenty accused before the ICTR have spent ten years or more before judgement by a Trial Chamber. And the worst case is yet to come. Next month, two accused in the Butare trial will begin their seventeenth year in jail without being found guilty of the alleged crimes against them. The four other accused in the case will have spent thirteen or fourteen years in prison by the time they may finally receive a judgement. Despite such a dire situation, trial judges have sat on their decision for two and a half years. And as result, these have become the “international standards” by which accused persons before UN tribunals can be tried.

International standards
“Of course, such length is intolerable from a legal point of view,” said Antoine Garapon, director of the Paris-based Institute of Higher Studies on Justice. “It is obviously contrary to international standards. The question is: why such delays? The problem is how to adapt ordinary judicial instruments to a crime of this scale. But delays should be analyzed with more scrutiny. We didn’t pay attention to the ICTR. We are all responsible for letting the situation go mouldy. Something that was unacceptable was eventually accepted. Why does everything deteriorate? Are these trials under control?” the former judge asked.

After it was condemned by the European Court of Human Rights for undue delay in putting an accused on trial, France ruled that four years was the maximum preventive detention for the worst crimes. But this of course, has no bearing on international tribunals. The concern at this stage, is how to guarantee that the trial was fair when the court has to justify the detention for up to sixteen years of individuals who are “presumed innocent.” “The issue of being tried within a reasonable amount of time should be asked,” says Garapon. It puts the tribunal in a position where it cannot disavow itself. This is one of the criteria for a fair trial. Does it invalidate the trial? Such consequence is not automatic. One can argue both ways. But it raises the question of remedy.”

No remedy, however, is considered before UN tribunals. For years, sponsors of international tribunals and human rights lobbies have consistently refrained from exposing such flaws. Sidiki Kaba, a Senegalese lawyer and honorary president of the International Federation for Human Rights is now ringing the alarm: “Regarding the military trial, given the length of the procedure and the sentencing, we can say that the trial was not fair. In the case of the former head of the Gendarmerie, we are dealing with an obvious case of dysfunctioning. Justice was done, admittedly, but the rights of the accused were not respected. We can be very grateful for the existence of international justice – this is progress. But it must not refelect the failings of domestic systems. For it to function, victims as well as the accused must feel that this was justice.”

Principles of justice
Kaba maintains, “there should not be a situation where international justice is not only said to be expensive and remote but also that it violates the rights of the defence.” Sixteen years after the creation of the ICTR and almost ten years into the workings of the International Criminal Court, he thinks “it is time now to have an audit that would lead to a number of recommendations for efficient jurisdictions. The UN could set up a panel of high-level jurists to assess if these tribunals have really satisfied the principles of justice.”

On May 20, according to Black, ICTR judges rejected a request by the Prosecutor to keep Ndindiliyimana under strictly controlled freedom in Arusha. The released convict is now said to share a house with three other accused who have been acquitted by the ICTR. All three men have never been able to find a country of asylum. One of them was acquitted seven years ago. Ndindiliyimana makes no secret about wishing to go back to Belgium where he was living at the time of his arrest, as a political refugee, and where his family lives today. However, he no longer has a passport.

“The question today is whether he takes the risk of appealing in the hope of being found innocent because he could also risk receiving a harsher sentence,” said Reyntjens. “We haven’t decided on the appeal,” said Black. “We have to wait for the judgement. Some people say: you should just accept what you’ve got. But I think the conviction was very weak. My sense tells me there should be an appeal. That would be my recommendation. But it will be his decision.”

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