Synthesis: prosecutors at the ICTR

By Hirondelle News Agency

The new prosecutor of the International criminal Tribunal for Rwanda (ICTR), Bubacar Hassan Jallow from Gambia, on October 9, 2003, presented the United Nations Security Council with his intended plan of action as far as prosecuting the remaining cases before the tribunal’s mandate ends in 2008 is concerned.

Jallow is the fourth prosecutor of the ICTR ever since it was established in November 1994. He was appointed on September 15, this year. His predecessors were South African Richard Goldstone (end of 1994-September 1996) Louse Arbour from Canada (October 1, 1996-September 14, 1999) and Carla Del Ponte from Switzerland (September 15 to September 14, 2003).

The first three combined their job with that of the International Criminal Tribunal for the former Yugoslavia (ICTY) before the controversial separation of the two posts by the UN Security Council last August 28.

Carla Del Ponte’s mandate

Born in Lugano, the Italian side of Switzerland, Carla del Ponte first worked as a magistrate and prosecutor general before turning her focus to organized crime, especially on arms trafficking, terrorism and money laundering and targeting mostly drug barons.

As soon as she started work in the ICTR, she began by reorganizing her office and fired seven members of her team; six trial attorneys and a Jordanian, citing "incompetence". The victims regarded it as an act of "racism" which she energetically denied, maintaining that it was necessary in order to make her office more efficient. She went on to explain that the first to be fired was a "white American".

Her arrival at the ICTR also coincided with a time when relations between the ICTR and Rwanda were tense. This state of tension continued for a better part of her mandate, which, according to Del Ponte, was one of the main reasons why it was not renewed.

It all started with the "Barayagwiza affair". On November 3, 1999, the appeals chamber of the ICTR released Jean Bosco Barayagwiza, former political advisor in the Rwandan ministry of foreign affairs and a member of the steering committee of the Radio-télévision libre des Mille collines (RTLM). He is one of the three accused in one of the major trials, that of the so-called "hate media".

Following that decision, Kigali suspended its relationship with the tribunal and del Ponte was even refused a visa to Rwanda. The situation normalized in December 1999, though during Del Ponte’s first visit to Rwanda, she was received by demonstrations organised by members of genocide survivors’ associations, which, according to observers, had the tacit blessings of the government.

Although she had no part in the appeals chamber’s decision, which she contested and was eventually revised, her announcement in December 2000 of the opening of "special investigations" into war crimes and crimes against humanity allegedly committed by soldiers of the current government in 1994 had heavy consequences. From then onwards, the Rwandan government accused Carla del Ponte of "politicising her office".

Del Ponte was unmoved. "Any crime within my competence is a crime, regardless the identity, ethnic or political ideas of whoever committed it. Justice does not accommodate political opportunism," she stated in response.

The tug-of-war that followed led to the "witness crisis" in 2002. For several months, many trials were paralysed because of the lack of witnesses from Rwanda. Kigali never publicly acknowledged any link between the "crisis" and the "special investigations". It was Del Ponte who finally spilled the beans: during a meeting with British members of Parliament, she publicly declared for the first time that the origins of the non-cooperation could be found on the side of the "special investigations".

Kigali’s position on that subject has always been very clear: Soldiers implicated in such crimes were tried by Rwandan military jurisdictions, therefore, the ICTR should not get involved. In four years, Del Ponte arrested 28 people out of the 65 held today in detention by the ICTR. She notably conducted simultaneous arrests across Europe (Belgium, Switzerland, Netherlands) or cause the arrests of suspects in African countries traditionally considered to be hostile to her actions, such as both Congos.

She caused the arrests of two former ministers, Jean de Dieu Kamuhanda (Higher Education) and Emmanuel Ndindabahizi (Finance), two generals Augustin Ndindiliyimana and Augustin Bizimungu, chiefs of staff of the gendarmerie and army respectively during the genocide, two colonels;

Tharcisse Renzaho (prefet of Kigali city in 1994) and Tharcisse Muvunyi (commander of the non-commissioned officers academy in Butare), Protais Zigiranyirazo, one of president Habyarimana’s brother-in-law and a member of the "Akazu" (the president’s inner circle), a musician, Simon Bikindi, considered to be the regime’s propaganda machine, as well as Major François-Xavier Nzuwonemeye, commander of the elite reconnaissance battalion of the Rwandan army.

But the arrest of General Leonidas Rusatira, former commandant of the Rwandan military academy had a different ending. Following mass protests from human rights organisations, according to whom Rusatira is the only high ranking member of the former regime to have publicly opposed the genocide in 1994, he was released. Del Ponte finally acknowledged that she did not have enough evidence to indict him.

Despite her successes, the International Crisis Group (ICG), a Brussels-based pressure group, accused her of two major failures in their latest report on the ICTR: The internal workings of the office of the prosecutor and the general strategy laid down for completing the trials.The ICG pointed out in "Time for pragmatism", published in September this year, that in two years and a half, three chiefs of prosecution succeeded each other, while the post of deputy prosecutor remained vacant for twenty months, apart from a temporary replacement for four months at the end of 2002, which "further tore apart the office".

On the prosecution strategy, ICG criticised the fact that in 2001, Del Ponte announced that she would be carrying out 136 new arrests "ignorant of the difficulties facing the tribunal and the limits of its mandate, thereby provoking the anger of donor states and causing the tribunal to ‘eat more than it could swallow’".

At the end of August 2003, the secretary General of the UN, with the support of both the United States and Britain, recommended that the positions of prosecutor at the ICTR and the ICTY be separate "for reasons of efficiency".

Rwanda had expressed that point of view on numerous occasions, coupled with repeated criticism of del Ponte. She fought against that decision, but eventually lost that battle. She would remain at the ICTY but Jallow would take over the ICTR. Shortly after, the Swiss prosecutor confided in an interview to Hirondelle News Agency, a few days before her final departure form Arusha, that had she been given the choice, she would have chosen to stay at the ICTR. "I personally requested whether I could choose. I believe I would have opted for the ICTR because I still remained with one challenge: the special investigations. Unfortunately, I was not given the luxury of choosing. I was very attached to this tribunal".

Louise Arbour

Carla Del Ponte’s "predecessor" was also a woman. Born in Montréal in 1947, Louise Arbour began her career at the Quebec Bar before entering in 1977 into the Ontario Bar. Gradually, she climbed up the judicial ladder in this province where she was named judge in the Supreme Court in 1987, and three years later, in the Court of Appeal. She was named prosecutor to the International Criminal Tribunal in 1996.

When she left the post in 1999, she was convinced that she had left behind two independent "mature" institutions and real instruments for peace and justice. This was a far cry from the situation she found at the tribunal on her arrival. A few months after her nomination to the post, the Office of Internal Oversight released a report by Karl Paschke from Germany who concluded that there was a serious dysfunction in the administration of the ICTR. It pointed out that "some staff members occupying key positions in the Registry and the Office of the Prosecutor did not perform their tasks as expected from them".

The deputy prosecutor, Honoré Rakotomanana from Madagascar who was singled out in the report, was forced to resign. According to the Centre for Human Rights, Rakotomanana ignored instructions from his superior, Richard Goldstone to "only target the big fish". He was replaced by Bernard Muna from Cameroon.

Louise Arbour and her new deputy tried to revive this strategy, focusing mainly on political figures, members of the government, military and media personalities.While riticism of the slow pace of the tribunal, especially from Rwanda, started surfacing (only one trial had already begun), Louise Arbour launched in July 1997 "operation NAKI" (Nairobi-Kigali) one of her major initiatives. Nine suspects were arrested in Nairobi and Mombasa. Some "big fish" were caught in the net, including the former Prime minister in the interim government, Jean Kambanda, the former minister of gender, Pauline Nyiramasuhuko, who became the first woman to be indicted by an international jurisdiction for genocide and crimes against humanity, Brigadier Gratien Kabiligi, a former journalist Hassan Ngeze, the former prefect of Butare Sylvain Nsabimana, and a Belgian of Italian descent, Georges Ruggiu, former radio presenter and the only non-Rwandan to be indicted by the ICTR.

Some important suspects, including Colonel Renzaho, escaped the dragnet. The prosecution also committed a major blunder. They arrested one Esdras Twagirimana on false information, thinking that they had arrested Shalom Ntahobali, the son of Pauline Nyiramasuhuko. Twagirimana was released two months later. Ntahobali was arrested one week after the mistake.

In 1998, Louise Arbour struck in West Africa. Operation "Kiwest" targeted some former ministers in the interim government and high-ranking members of

the former ruling party, the MRND, who had taken refuge in Mali, Benin and Togo. Most of them are now in the so-called "Government I" trial set to begin November 3. Joseph Karemera, the former minister of interior, Joseph Nzirorera, former president of the interim National Assembly and minister of public works, and Matthieu Ngirumpatse, former minister of justice. The three occupied the posts of vice-president, secretary general and president of the MRND respectively.

In April the following year, it was in Cameroon that more former ministers were arrested: Jerome Bicamumpaka (foreign affairs), Justin Mugenzi (commerce) and Prosper Mugiraneza (public service). Along with the former minister of health, Dr. Casimir Bizimungu, who was arrested in Kenya, they have been grouped in the "Government II" trial, also set to begin on November 3. In total, Louise Arbour made 23 arrests.

In her overall strategy in indicting the accused, Arbour preferred to pursue criminal intent, that is conspiracy to commit genocide. In that logic, she sought to hold a giant trial in March 1998 that would include 29 accused, with colonel Theoneste Bagosora, considered to be the "mastermind" of the genocide, in the lead so as to prove that there was a countrywide conspiracy.

That joint indictment, inspired by the Nuremberg trials, was however rejected by Judge Tafazzal Hussein Khan (Bangladesh), who considered that such a trial would not respect the rights of the accused, adding that some of them had their cases at different stages of advancement, while others had not yet even been arrested.

When her case was also rejected in the appeals chamber, the Canadian prosecutor resorted to having joint trials with a small number of accused. That is how joint trials with the same themes (military, media, Cyangugu, Butare) came to be which, today are either still going on (Butare, Military I) or awaiting judgement (Media and Cyangugu).It was also under her mandate that the first sentencings took place, mainly that of the former prime minister Jean Kambanda and that of former mayor Jean Paul Akayesu.

During the Akayesu case, Louise Arbour managed to modify the indictment to include rape. The modification of the indictment was made a few days only after a seminar on sexual violence was held in Arusha. Representatives from women’s organisations, both regional and international participated, including the former US First Lady, Hillary Clinton. The accused and his defence counsels would claim a short while later that the prosecutor had succumbed to pressure.

According to a Canadian journalist, Carol Off, author of a book entitled, "The lion, the fox and the eagle, a story of generals and justice in Rwanda and Yugoslavia", who was quoted by "Diplomatie Judiciare", Louise Arbour had her own "method" While her predecessor had a habit of making a show of his indictments by publishing "details of the alleged crimes on the tribunal’s website", Louise Arbour "played her cards close to the chest and only a handful of her collaborators working on a particular case were privy to the details".

One of those kept secret was the investigation into the shooting down of the plane carrying president Habyarimana. Two years after Arbour had left, a Canadian newspaper, the "National Post", talked of a document put under seal by the prosecutor that incriminated the Rwandese Patriotic Front and the current president, Paul Kagame in the attack. Officials of the ICR responded that the author of the report, Michael Hourigan from Australia, had not been mandated by his superiors to produce that document.Regarding those investigations, Off attributed the following remarks to

Arbour: "the government of Rwanda used to read my mail. They knew what I was doing. Had I sent someone to investigate the RPF, he would have been killed. I did not do it".Richard Goldstone The first prosecutor of both tribunals, Richard Goldstone was born on October 26, 1938. During his mandate, 14 people were arrested. Some of them are on the first collective indictment drawn up in 1995 by the ICTR that groups eight accused from Kibuye (western Rwanda) and includes the former prefect, Clement Kayishema, sentenced to life in prison for genocide.It was also Goldstone who carried out the first arrests in 1995 in Zambia,

Among those arrested then were the former prefect Kayishema, the former mayor Jean Paul Akayesu and a former leader of the Interahamwe, Georges Rutaganda. Other arrests were carried out in Belgium (former mayors Elie Ndayambaje and Joseph Kanyabashi), and in Switzerland (former director of a tea factory, Alfred Musema).

More arrests were made the following year in Cameroon. Those arrested were transferred to Arusha during Arbour’s mandate. Some of them are considered to be key suspects, like the two directors of RTLM, Ferdinand Nahimana and Jean Bosco Barayagwiza, the former director of cabinet in the Rwandan ministry of defence Colonel Theoneste Bagosora and lieutenant colonel Anatole Nsengiyumva, former head of army intelligence military commander of Gisenyi military region.

A few months before he left his post, Richard Goldstone granted an interview to an independent French journalist, Joël Donnet. He declared that his biggest satisfaction had been "to work with remarkable people from 33 different countries. Seeing how such an international group can work together with the same objectives, same norms, it is an extremely satisfying experience".

Asked as to what frustrated him most, Goldstone said that it was the "time it takes to do a job that can be significant to victims. If justice is to mean anything to the victims, it must seem to be done. But the fact that investigations have to be carried out, the time it takes the UN to be operational and problems with bureaucracy, are neither significant nor comforting to victims who want to see results".

Effectively, no trial took place during the South African’s mandate. It was in January 1997 that the first case opened, that of Jean Paul Akayesu.That criticism is shared by all prosecutors of the ICTR who have occupied the post. To Carla Del Ponte, it was also her biggest disappointment.

The new prosecutor of the ICTR nevertheless expressed the necessity to speed up the trials. " I have already put into place mechanisms in view of examining the cases waiting to be tried, that of the 16 still at large, 26 people still being investigated and about 40 cases that could be transferred to national jurisdictions", declared Jallow on October 9. Thirty people, about half the total detainees, are still waiting to stand trial at the ICTR, some for five years.

Last modified: October 30, 2003.
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