New Article on Litigating Human Rights: Fair Trial and International Criminal Justice

My article, “Litigating Human Rights:  Fair Trial and International Criminal Justice, the Appellate Acquittals of Major F.X. Nzuwonemeye in the Ndindiliyimana (“Military II”) Case at the International Criminal Tribunal for Rwanda  (‘ICTR’)” was just published in the Spring 2015 Edition of Africa Law Today, the ABA-SIL’s Africa Committee Newsletter.   The article can be accessed here.

Chief Charles A. Taku and I represented Major Nzuwonemeye at trial, and on appeal.

In February 2014, the ICTR Appeals Chamber acquitted Major Nzuwonemeye.

The article discusses the reversals by the ICTR Appeals Chamber of Major Nzuwonemeye’s convictions for modes of liability, based on fair trial (right to notice) grounds and failure to provide a reasoned opinion.   The Appeal Judgment, where it holds that there were fair trial violations, is a significant contribution toward strengthening the jurisprudence in support, and defense, of fair trial as an international human right.

CORRECTIONS:  The title should read “. . . International Criminal Tribunal for Rwanda” and the opening sentence of the article (under Background) should read, “On 1 October 1990. . .”

I welcome comments.

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2 thoughts on “New Article on Litigating Human Rights: Fair Trial and International Criminal Justice

  1. Dear Beth

    A really interesting and thought-provoking paper. I have a question which is not directly related to the issues you raise, but which concerns a short assertion made in the paper. On page 4, you state as follows:

    “at trial all four co-Accused [in the Military II case] were acquitted of conspiracy to commit genocide, legally refuting the Rwandan government’s theory that the 1994 genocide was planned”

    I’m currently examining this issue and have been reviewing the various judgments of the ICTR Trial Chambers, which have consistently acquitted defendants on the charge of conspiracy to commit genocide in advance of its commencement in April 1994.

    Yet, what has struck me is the language used by Trial Chambers in acquitting defendants of the conspiracy charge. In particular, in the Military II judgment of the Trial Chamber, the following paragraphs stand out:

    –> Para. 2066: “There is no doubt that some of the killings required a certain level of coordination, planning and sophistication. For this reason, the Chamber cannot rule out the possibility of the existence of plans to commit genocide”

    –> Para. 2068: “The Chamber finds that while certain elements proved by the Prosecution could collectively be suggestive of a conspiracy to commit genocide, they are also consistent with reasonable alternative explanations. For example, in the context of an ongoing war with the RPF, the “visible components” are arguably consistent with a political and military power struggle against the RPF”

    The Trial Chamber in Military I also made similar remarks:

    –> Para. 2092: “At the outset, the Chamber emphasises that the question under consideration is not whether there was a plan or conspiracy to commit genocide in Rwanda. Rather, it is whether the Prosecution has proven beyond reasonable doubt based on the evidence in this case that the four Accused committed the crime of conspiracy”

    –> Para. 2107 and 2110: “the Chamber cannot exclude that there were in fact plans prior to 6 April to commit genocide in Rwanda. […] However, they are also consistent with preparations for a political or military power struggle.”

    With these statements in mind, is it not fairer to conclude that the ICTR Trial Chambers have consistently left undecided the question of whether the genocide in Rwanda was planned? By leaving the question undecided in this way, the tribunal appears to have shifted from earlier judgments where it appeared to be more confident that the genocide was planned e.g. Akayesu TC judgment (para. 126) and Kayishema TC judgment (para. 528). Moreover, clearly it is significant that the accused individuals have been acquitted of the charge of conspiracy to commit genocide. However, is it not reading too much into the judgments to claim that the Rwandan government’s theory of the genocide has thereby been refuted? My reading is that the Trial Chambers have tried to dodge this question, acquitting the accused on trial whilst at the same time expressly refraining from affirming anyone’s theory on the issue, whether it be the Prosecution’s or the Defence’s. On my reading, the only conclusion to draw from the judgments is that there are “reasonable alternative explanations” and the audience is left to continue the conversation beyond the courtroom regarding which explanations are more reasonable than others.

    I’m currently preparing a post for Justice in Conflict on this issue but am keen to hear your thoughts.

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