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Comment on the Completion Strategy Question: “What might be some elements of an ICC completion strategy for situations under investigation?”

Completion Strategy: Is the Referral Process Effective?

I. Introduction

One of the major issues which has been faced by almost all the international tribunals, including the International Criminal Tribunal for former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), has been the question of when to stop an investigation. The nature of the crimes under the preview of international tribunals is such that they involve a lot of victims and perpetrators. And given the sheer volume, tribunals generally tend to focus on prosecuting the most responsible. In order to accomplish this goal both the ICTY and the ICTR devised their completion strategies. An important part of the completion strategy was the provision for referring cases to national jurisdictions and the provision was incorporated in the respective Rules of Procedure and Evidence of the ICTY and the ICTR via an amendment—Rule 11 bis for both the tribunals.1 This amendment incorporated in the rules, with regards to referral process, is similar but the practical experience of both the tribunals are in contrast.

The International Criminal Court (ICC), too, has been grappling with the issue of completion of investigations and they are looking to develop a clear completion strategy for situations under investigation.2 In this comment, I will review the experience of the ICTR in referring the cases to domestic jurisdictions as part of the completion strategy and try to come up with lessons that the ICC can learn from the ICTR’s completion strategy.

II. Why ICTR?

Although both the ICTY and the ICTR have worked on completion strategies, I review only the ICTR’s experience here because I believe that the lack of interference of foreign powers in the resolution of Rwanda’s conflict led to a rise in far greater challenges in the implementation of the referral process of the ICTR. Rwanda’s conflict was resolved after victory of one of the parties in the conflict and therefore the sentiment, and more importantly the willingness, to ensure justice to the victims was very much alive in the internal political structure of Rwanda. Rwanda’s sentiment and resolve to ensure justice can be understood from the below quote:

The 1994 genocide affected the entire world, but the scars are borne by the people of Rwanda alone. The crimes were perpetrated by Rwandans on Rwandan soil. The vast majority of victims were Rwandans. And those Rwandans who survived have suffered and will continue to suffer the pain of loss from now until the end of their lives.3

Rwanda’s willingness proved crucial for them and motivated them to reform their judicial structure and overcome the barriers to referral of cases from the ICTR. I am considering the ICTR’s experience also because of the fact that majority of the conflicts are resolved without international presence and, therefore, the ICC would be in a better position to deal with them if their completion strategy is based more on the ICTR and less on the ICTY.

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III. Challenges Faced by ICTR

After the conflict ended, Rwanda was in a state of disarray with law enforcement and judicial structure had been reduced to a fraction of its former self. To put things into perspective, it has been reported that in 1994, the number of judges decreased from 600 to 237 between April and August. Further, out of these 237, only 53 judges were posted to courts with jurisdiction over serious crimes.4

Given this state of disarray, Rwanda called upon the international community to aid it in prosecuting the persons responsible, and the international community responded by setting up the ICTR.5

[The ICTR was set up] for the sole purpose of prosecuting persons responsible for genocide and other serious violations of International Humanitarian Law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighboring states, between 1 January 1994 and 31 December 1994.6

However, the purpose of the ICTR was not to prosecute each and every individual accused of these crimes and accordingly the UN Security Council started pressuring the ICTR to transfer the cases of intermediate and lower-level accused to competent national courts. Given this mandate, the Office of the Prosecutor (OTP) of the ICTR started to scour for and then negotiate with states that are “willing and able”7 to accept and prosecute cases in accordance with Rule 11 bis of the ICTR. According to Rule 11 bis, the chamber has to be first satisfied that the “accused will receive a fair trial in the courts of the states concerned and that the death penalty will not be imposed or carried out”8 if the prosecutor is seeking to refer an indicted case to a “willing and adequately prepared”9 state.

In the prosecutor’s hunt for national jurisdictions to refer cases, only four countries (France, Norway, the Netherlands, and Rwanda) agreed to accept cases referred by the ICTR. However, different jurisdictions posed different challenges and, at the end, the prosecutor was able to transfer cases only to France and Rwanda. These challenges are briefly discussed below.

A. Norway

The prosecutor first attempted to transfer the Bagaragaza case10 to Norway but Norway’s domestic law did not have specific provisions to prosecute the crime of genocide and it suggested that the case be prosecuted as a homicide.11 The referral application of this case was subsequently rejected by the chamber as it held that “Norway did not have jurisdiction ratione materiae over the crimes charged in the indictment.”12

B. The Netherlands

The Prosecutor then attempted to refer Bagaragaza to the Netherlands and it was able to secure a referral order from the ICTR chamber. However, the prosecutor had to cancel this referral for two reasons. The first was a judgment by the Dutch court which held that “[t]he Netherlands lacked jurisdiction over the crime of genocide for acts committed in Rwanda in 1994.”13 The second was the inability to satisfy the plus-factor as the accused were not voluntarily present in the Netherlands when the case was initiated.14 Many courts require the accused to satisfy the criteria of “plus-factor” which basically translates into the voluntary presence of the accused in the country before the initiation of the proceedings.15

C. Rwanda

Given that crimes under the ICTR’s purview were mainly committed in Rwanda, it was an obvious choice for referral of cases. However, Rwanda’s legal framework did not satisfy the conditions for fairness of the trial laid out in Article 20 of the ICTR Statute. In order to rectify this, Rwanda enacted a series of legal reforms which also included abolition of death penalty.16

The OTP of the ICTR, being satisfied that the legal reforms enacted by Rwanda were enough to fulfill the conditions of Article 20 of the ICTR Statute, attempted to refer five indicted cases to Rwanda for trial. However, this attempt failed in the face of defense arguments questioning the effectiveness of the legal reforms in order provide free and fair trial.17 In the hearing of these applications, it became apparent that the judges were interested in evaluating the practical aspects of trial in Rwanda as many questions were raised relating to witness protection, independence of judiciary, legal aid, and so forth.18 Accordingly, all five applications were rejected on similar grounds.19

D. France

Two cases were referred to France after the accused persons, Laurent Bucyibaruta and Wenceslas Munyeshyaka, were detained in France. The application to refer these cases were approved by the referral chambers relying on the legal framework and willingness of France to prosecute the accused persons.

There was very little challenge in terms of referring the cases to France, but even after more than a decade past the referral of these cases, there has been very little progress in the trial.20 This is due to the fact that there have been a lot of practical difficulties in gathering evidence, getting witnesses, etc. Any foreign nations trying to prosecute cases of some distant state will encounter these difficulties and this is what it makes it impractical.

IV. Overcoming the Challenges

After rejection of all the five referral applications to Rwanda, the ICTR’s OTP had to reconsider its strategy and it entered into a series of consultations with the Rwandan administration.21 The goal was to strengthen the Rwanda’s justice sector.22 The Reforms that came about due to the ICTR’s partnership with Rwanda are described below.

A. Legislative Reform

The first step towards improving the justice system of Rwanda, and making it on par with that of the ICTR’s, started with legislative reforms in the criminal structure. The process had already started by abolishing the death penalty and now moved on to abolish solitary confinement.

This was necessary because when the death penalty was abolished, as per the Abolition of Death Penalty Law,23 Article 4 of the same law provided for imprisonment with special conditions including solitary confinement. As per the international law norms, solitary confinement is only permitted for very limited time, and in very exceptional and rare circumstances. Accordingly, Rwanda adopted new legislation clarifying that the special conditions to imprisonment, including solitary confinement, would not be applicable to cases transferred by the ICTR.24

Rwanda also made changes to its Penal Code and Code of Criminal Procedure to modernize its “provisions and substantially reduce the range of criminal sentences.”25 Changes were further made to the Genocide Ideology Law because the existing law covered a very broad scope of acts under genocide. The changes resulted in:

  1. establishment of a more direct nexus between the law’s legitimate purposes and its scope,

  2. clarification of vague or overboard terminology,

  3. specifically identify prohibited conduct and impose an intent element and

  4. reformulate the sentencing structure.26

In countries like Rwanda, where the memory of genocide is still fresh in people’s mind, it has often been observed that very few people would want to defend the accused due to threat of their own prosecution or threats from victims and their families. Neither would anyone want to volunteer themselves as defense witness. Therefore, it became imperative to have some sort of protection to the defense teams and defense witnesses. Rwanda addressed such protection via Article 14 of the Transfer Law which states that “without prejudice to the relevant laws of contempt of court and perjury, no person shall be criminally liable for anything said or done in the course of a trial.”27

Last, but not least, Rwanda’s legislative reforms included providing witnesses, residing outside the country who do not want to be physically present in court, an alternative to live testimony. As per Article 16 of the Transfer Law, three alternatives were provided to live testimony. These are:

  1. by deposition in Rwanda or in foreign jurisdiction before a presiding officer, magistrate or other judicial officer,

  2. by video link hearing taken by judge at trial and

  3. by Rwandan judge sitting in a foreign jurisdiction.28

B. Infrastructure Improvements

Infrastructure improvements were necessary for proper functions of the judicial mechanism as the Rwandan infrastructure was tattered after genocide. These improvements included construction of an internationally compliant detention center in Kigali and a prison in Mpanga,29 establishment of a Witness Protection Unit within the judiciary, and setting up better video link capacity.30

C. Knowledge and Experience Sharing

The ICTR Prosecutor and other officials started conducting workshops in order to train the Rwandan officials and many Rwandans also worked at the ICTR in order to get better experience of the judicial structure. An information center and ten regional centers were also set up, with support from European Union, in order to share information regarding major developments at the ICTR.31

V. Effects of Reforms.

In addition to the obvious effect of successful transfer of cases from the ICTR to domestic Rwandan courts, it was also observed that some reforms, such as abolition of death penalty, also provided renewed vigor towards reconciliation among the different communities of Rwanda who were at odds after the civil war and genocide. Horovitz, in her paper, notes that around 1300 prisoners had received death penalty and approximately 12,000 who were awaiting trial were eligible for death penalty by 2007 for crimes related to genocide.32 After the abolition of the death penalty, all those already sentenced were commuted to life. This obviously provided a certain relief to the prisoners and their relatives.

Horovitz conducted interviews with the prisoners, their relatives, survivors of genocide, and certain elite members of Rwanda. In her interviews with prisoners whose death sentences had been commuted and their families, she notes that mostly all of them were overjoyed, relieved, and believed that this step would bring reconciliation amongst the communities. She further notes that these people were so gratified that it would definitely help in forgetting the past and letting go of bitterness. One of the prisoners was so relieved that he confessed to his crimes and apologized in the hope of being released from prison someday.33

In her interviews with survivors, she notes that it was unexpected that survivors would accept and support the abolition of the death penalty. The summary for this unexpected result can be found in excerpts from one of the survivor’s interview mentioned below.

We were backing up this idea of death penalty but our government abolished it…In the first place we were angry, very sad with a lot of sorrow, and we wanted these people to die. But as life goes on, as we get healed, then we can accept and live with what happened to us, and we realized that death [penalty] is not the solution34.

The change in views of the public regarding the abolition of death penalty has largely been attributed to Tharcisse Karugarama’s public campaign.35 Karugarama was Rwanda’s Justice Minister and he led a public campaign to educate the masses about the virtues of forgiveness and garner support for abolition of death penalty.36

VI. Conclusion

In conclusion, I would only like to point out the fact that the main purpose of the ICC or any such criminal tribunal should not be limited to prosecution of cases. Rather, such tribunals should be used as a tool for the development of the criminal justice system in countries affected by conflict. Countries which are already going through or have recently gone through major conflict will most probably be on the path to restructure and regrow. The ICC should act as a catalyst in this process and should be part of the reconstruction process of the judicial system.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Navanethem Pillay, President of ICTR, Seventh Annual Report of the ICTR for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States between 1 January and 31 December 1994, UN Doc. A/57/163—S/2002/733, ¶ 10 (Jul. 2, 2002), available online. ↩

  2. 2.

    Office of the Prosecutor, ICC, Strategic Plan 2019–2021 (Jul. 17, 2019), available online. ↩

  3. 3.

    Office of the Prosecutor, ICTR, Complementarity in Action: Lessons Learned from the ICTR Prosecutor’s Referral of International Criminal Cases to National Jurisdictions for Trial ¶ 38 (Feb. 2015) [hereinafter Complementarity in Action], available online. ↩

  4. 4.

    Id. ¶ 13. ↩

  5. 5.

    Manzi Bakuramutsa, Permanent Representative of Rwanda to United Nations, Statement on the Question of Refugees and Security in Rwanda, UN Doc. S/1994/1115 Annex, 4 (Sep. 29, 1994), available online, archived. ↩

  6. 6.

    Statute for the International Tribunal for Rwanda, S.C. Res. 955 Annex, UN Doc. S/RES/955, Art. 20 (Nov. 8, 1994) [hereinafter ICTR Statute], available online. ↩

  7. 7.

    Complementarity in Action, supra note 3, ¶ 17. ↩

  8. 8.

    ICTR Statute, supra note 6, at Art. 11 bis. ↩

  9. 9.

    Id. ↩

  10. 10.

    The Prosecutor v. Michel Bagaragaza, ICTR-05-86-S, Sentencing Judgement, ¶ 4 (ICTR TC III, Nov. 17, 2009), available online. ↩

  11. 11.

    Complementarity in Action, supra note 3, ¶ 25. ↩

  12. 12.

    Id. ¶ 30. ↩

  13. 13.

    Id. ¶ 33. ↩

  14. 14.

    Id. ¶ 34. ↩

  15. 15.

    Id. ¶ 31. ↩

  16. 16.

    Id. ¶ 43. ↩

  17. 17.

    Id. ¶ 48. ↩

  18. 18.

    Id. ¶ 49. ↩

  19. 19.

    Id. ¶ 43. ↩

  20. 20.

    The Collectif des Parties Civiles pour le Rwanda, CPCR’s Submission to the UN Human Rights Council, 29th Session of the Working Group on the Universal Periodic Review, ¶ II(B)(7) (Jun. 28, 2017), available online. ↩

  21. 21.

    Id. ¶ 46. ↩

  22. 22.

    Id. ¶ 47. ↩

  23. 23.

    Organic Law n° 31/2007 Relating to the Abolition of the Death Penalty (Rwanda) (Jul. 25, 2007), available online. ↩

  24. 24.

    Id. ↩

  25. 25.

    Complementarity in Action, supra note 3, ¶ 60. ↩

  26. 26.

    Id. ¶ 65. ↩

  27. 27.

    Organic Law n° 47/2013 Relating to Transfer of Cases to Republic of Rwanda (Jun. 16, 2013), available online. ↩

  28. 28.

    Id. ↩

  29. 29.

    Complementarity in Action, supra note 3, ¶ 65. ↩

  30. 30.

    Id. ¶ 64. ↩

  31. 31.

    Id. ¶ 71. ↩

  32. 32.

    See Sigall Horovitz, International Criminal Courts in Action: The ICTR’s Effect on Death Penalty and Reconciliation in Rwanda, 48 Geo. Wash. Int’l L. Rev. 505, 513 (2016), available online, paywall, doi. ↩

  33. 33.

    Id. ¶ 531. ↩

  34. 34.

    Id. ¶ 535. ↩

  35. 35.

    Id. ¶ 524. ↩

  36. 36.

    Id. ↩

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