Richard Karegyesa leads the prosecutions at the International Criminal Tribunal for Rwanda (ICTR), which is finalising its mandate.

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By Thijs Bouwknegt, Arusha

What is the ICTR’s biggest success?
In the context of the resolution that established the tribunal, it is deterrence and accountability. In that regard we have scored major successes in bringing to justice key perpetrators of the genocide. Largely the planners at the top of the pyramid who were responsible for the architecture and their acting in the execution of the genocide. We are the first court to try a genocide case since the convention. We managed to have rape defined as genocide.

On the Rwandan front our mandate also talks of contributing to peace and reconciliation. The jury is still out on that but we can contribute by taking out key perpetrators – we indicted 93 and have arrested 83. They would have, unindicted, unpursued, probably been in the Congo and posing a threat. But by taking them out, we have shown that you can run but you can’t hide.

What is the biggest challenge at the your office?
The big cases where you have multiple defendants are always a big challenge. They take forever. You saw the Butare judgement after 10 years and 12 days from trial commencement, six accused, almost 200 witnesses, 12 defense lawyers. Once a trial starts it generates its own dynamic and very many external extraneous factors that cause delays. This has posed a challenge to the prosecutor’s office.

The other challenge, of course, is that we were targeting largely the leadership behind the architecture of the genocide. The planning is very often quite difficult to prove if the accused himself hass not physically participated in an attack. They operate behind the scenes and outsource the actual execution. So in terms of investigation and marshalling evidence, that is a very big challenge, unless of course there are insiders who can link them either to the planning, instigation or ordering of the crimes.

What will happen with the cases of the 9 people on the run?
Take the case of Felicien Kabuga. The investigation was complete but with the threat of witnesses dying off, memory lapses, unavailability, it was thought prudent to preserve the evidence in a format that would be admissible in a trial later on. Because the accused is still at large there is a threat that we will lose this evidence, so we preserve it. It is evidence given under oath, tested by cross-examination and it will only be used if the accused is arrested and a witness is dead. If the witness is still alive the witness will have to come and testify orally. This isn’t a trial in absentia, it is not proceedings against Kabuga as such, it proceedings to preserve the evidence to use at a later date.

Does the criticism that only one party has been prosecuted leave a bitter legacy for the tribunal?
We are not politicians here and there are no ethnic considerations in the exercise of our prosecutorial discretion. The decision to indict is first and foremost based on the evidence available and the prospects of a reasonable success at trial. You just don’t go out saying: “I’ll indict 50% Hutu and 50% Tutsi.” No, you investigate. We had a list in excess of 500 perpetrators, all at the senior level, but we have a finite mandate and resources, and how to prioritize? In the end we have only indicted 93, we have transferred some files containing evidence to Rwanda to prosecute and pursue and to other countries in Europe and elsewhere.

With regard to allegations against the RPF, they too were investigated, but the evidence did not guarantee reasonable prospects of success at trial and in this were vindicated by some of the witnesses appearing before the French and Spanish inquiries who have since recounted their testimony alleging that they were either compromised or had ill motives of seeking asylum in Europe. That is the same evidence that we have, which has collapsed and which suggests that we were prudent not to proceed on such flimsy evidence, which we had doubts about. You do not go out on a fishing expedition to politicize an indictment regime with ethnic considerations. It is crime-based, we had a million dead from the genocide, there were clearly more than a 100.000 perpetrators, we initially looked at about 500, and our mandate didn’t permit us to pursue everybody. So yes if national jurisdictions can pursue prosecutions they should go ahead.

How important is working with prosecutors elsewhere?
It is very important because the ICTR and the ICTY are ad hoc tribunals; they are on their way out. They had primacy or they could assert primacy over national courts, but we have concurrent jurisdiction under our rules of procedure and evidence, and the trend now best captured by the ICC complementarity regime is that national jurisdictions should be the first to prosecute these cases with the ICC truly being a court of last resort.

The architecture of these international courts is such that they can’t handle all the prosecutions arising out of mass crime. They can only target a handful, the most senior and the most responsible, but that doesn’t mean the foot soldiers or physical perpetrators at middle and junior level should go scot free. So ultimately the responsibility to prosecute rests with national jurisdictions either where the crimes are committed or using universal jurisdictions where the perpetrators are resident or domiciled. Basically therein lies the future of international criminal justice, it’s a national responsibility only shared at the international level if there is an unwillingness of unability.

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