It has almost been a decade since Chief Charles A. Taku’s and my client, Major F.X. Nzuwonemeye, was acquitted on appeal at the International Criminal Tribunal for Rwanda (ICTR). (See my previous posts here, here, here)
Yet, in 2022, he has now served two years more than the full twenty year sentence imposed by the Trial Chamber in 2011 – for crimes for which he was acquitted by the Appeals Chamber in 2014.
Major Nzuwonemeye, along with other ICTR persons who were acquitted or completed their sentences, was living in a “safe-house” in Arusha, under the care and custody of the U.N. (see, “Treatment of the Acquitted….” ). Then, everything changed. He was transferred to a “safe house” in Niamey, Niger in early December 2021.
But Major Nzuwonemeye is still not free.
He, and seven other acquitted or released ICTR persons, are currently living under house arrest and without any papers in Niger. A 9th person, the acquitted Minister Jerome Bicamumpaka, refused to go to Niger, and sought medical care in Kenya; unfortunately, he has recently died.
How does such a a travesty of justice continue, and become more egregious (if that is even possible!) as the time passes?
The eight persons in Niger (four of whom were acquitted; four of whom were released having served their sentences) have been waiting between almost ten and eighteen or so years for a country to accept them. Some persons who were acquitted or released succeeded in seeking asylum in other countries. However, from the very beginning, the only country that expressed willingness at each UN Security Council meeting to accept these men was Rwanda. Relocation to Rwanda was and continues to be a death sentence, since the ICTR men were part of the former government or its military, and President Kagame is still waging the war which resulted in the events of 1994.
Timeline for Niger
On 15 November 2021, a Relocation or Resettlement Agreement was signed between the Government of Niger (GON, by the Minister of State and of Foreign Affairs and Cooperation) and the Mechanism for International Criminal Tribunals (MICT), by the Registrar, who is an Assistant Secretary-General of the UN) (see “Agreement” here).
On 5 December 2021, the 8 ICTR persons were deported to Niger, as per the Agreement.
Three weeks later, on 27 December 2021, the GON issued an Expulsion Order, to take effect in 7 days, which was 3 January 2022. No reasons or specifics were given in the order. It simply said: pour les raisons diplomatiques.
But, the men still sit – in a legal limbo – in Niamey, Niger. They have no information about their fate. Their papers have not been returned, they have no passports, and they are under Niger guards.
Lawyers for the men, in Niamey and other countries, won a thirty day extension of the initial Expulsion Order. However, efforts to remove the men to safety have been unsuccessful. Tanzania refused to take the men back, and efforts to find a country where the men can live freely have produced no results.
In addition, Defence attorneys (Major Nzuwonemeye is represented by Peter Robinson) have sought other post-acquittal or post-release remedies. These include, for example, that Niger be reported to the Security Council for non-compliance with the Relocation Agreement; that an oral hearing be held at one of the seats of the MICT, either Arusha or the Hague on the non-compliance complaint; and that Article 28 of the ICTR Statute on cooperation be invoked re relocation of acquitted persons and those who completed their sentence.
Save Our Parents, an organization of the men’s children and other family members and supporters, demonstrated in the Hague in March 2022, to end the Explusion Order and for reunification of the men with their families.
It is now the beginning of June and the situation remains unchanged, but the violations of human rights continue to worsen as the situation becomes more bleak. The expulsion deadlines have been extended and not enforced, but the men live in Niamey without papers, without liberty and under house arrest. And, the fundamental concern is that the men will be transferred to Rwanda.
Niger’s Non-compliance with the Agreement makes the deportation of the eight men to Rwanda a real possibility
Niger never spelled out the “diplomatic reasons” for which it unilaterally broke the UN/MICT Relocation Agreement. But, many of us suspect that it had to do with pressure from Rwanda. Rwanda has a continuing interest in the fate of the eight men, who it considers as enemies of the state. Rwanda has made repeated (and unsuccessful) efforts over the years to get the men into its custody.
In addition, Rwanda is now assuming France’s security tasks in Niger and the Sahel region. France is using Rwandan troops as its “proxy” in the region. This suggests that the Expulsion Order came at Rwanda’s request (here, here). The presence of the eight ICTR persons is another football in France-Niger-Rwanda relations.
As reported in Jeune Afrique, 30 December 2021 (here), Kigali claimed ignorance of the initial Agreement and negotiations between the UN and Niger. Rwanda’s Ambassador to the UN, Valentine Rugwabiza, states that it was not notified by the MICT or Niger about the transfer of the men from Arusha to Niamey, Niger. The article also reported that the UN gave assurances to Niger that Rwanda would not make the re-location of the men a problem. A Nigerian official is quoted as saying that the UN misled Niger as to Rwanda, and now the UN has to find a place for these men to stay.
The threat of deportation to Rwanda is alive and well
The signed Agreement included a provision that ICTR persons could remain in Niger for one year (Articles 4.4 & 4.6) and a non-deportation clause to Rwanda (Article 7). Given Niger’s conduct, it has to be assumed that these clauses are now moot, and unenforceable. Without the protections of the Agreement, there is no obstacle to stop Rwanda from simply removing the men to its territory, if it chooses to do so.
The UN should take action to punish Niger for non-compliance with the Relocation Agreement
Niger’s action rendered the Agreement worthless, but its conduct also challenged the authority and legitimacy of the UN. The Agreement was between the Government of Niger, and the Registrar of the MICT, an Assistant Secretary-General of the UN. To add insult to injury, Niger was the rotating Security Council Chairperson for the month of December 2021 when it unilaterally breached the Agreement with the UN, and issued its Expulsion Order.
Although the MICT rejected Defence counsels’ request to report Niger to the Security Council, the Security Council itself should be seized of this matter because its own place in the international justice order has been attacked and undermined.
The MICT should muster its judicial courage and find a way to resolve the continuing grave injustices – which are a result of the UN/ICTR’s own making
Let there be no confusion….the ICTR (predecessor to the MICT) never envisioned acquittals and had no plan to address this possibility.
In 2009, a spokesman for the ICTR, then ICTR Deputy Registrar Everard O’Donnell, explained to a Symposium in Geneva:
The simple fact is—and there is some truth in this particular fact—that no proper provision was made for acquittal at the beginning of the setting up of the Tribunal. That much is a fact, and it’s one that we have been struggling with in the registry ever since. There was no budget for dealing with acquitted persons.
Anyone familiar with the workings of the UN knows that no budget means that nothing happens.
The eight men are considered pariahs by much of the world, but what is worse is: the very international institution (ICTR/MICT) which prosecuted them, and eventually acquitted or released them, has washed its hands of any responsibility for their welfare and safety and human rights.
Granted, some of the MICT’s judicial decisions and orders on the Niger crisis acknowledge the magnitude of the human rights violations, portend a worsening of the situation, and affirm the MICT’s duty to ensure the welfare of the eight men.
However, the decisions and orders fall far short of practically implementing and protecting the human rights of the men in Niger. In its recent 27 May 2022 decision, the Appeals Chamber affirmed the position that the Niger situation could not be resolved through judicial avenues, and places the onus on the Office of the Registrar to find relocation through political, diplomatic and administrative efforts. The MICT interprets its Statute as limiting its judicial authority and the demands it can make on Member States to co-operate in respect to re-location.
This narrow and rigid analysis repeats the errors of the past: if no acquittals were envisioned, this presumes that everyone prosecuted would be found guilty, and then there would not be any need for re-location of an acquitted person. Underlying the MICT’s approach is the presumption of guilt, which resulted in the initial failure of the UN/ICTR to envision and budget for acquittals
The struggle to find a safe State to accept these ICTR men is an uphill battle — and international judges must find a way to resolve the severe violations of international human rights. They must summon the courage to fight for the fundamental values embodied in human rights law.
But, the MICT appears to have washed its hands of any duty to find a State (other than Rwanda) to accept these men. Leaving the task to the Registrar simply “passes the legal buck.”
Eight acquitted and released men, most of whom are elderly, continue to be stateless, without papers, separated from their families and communities and with no prospect of any State in the world willing to accept them, except Rwanda.
The ICTR/MICT as an international justice institution should be more than ashamed or embarrassed by this situation. It should be held accountable and take whatever measures are required to re-locate the ICTR men in Niger to a safe country and to safeguard their human rights.
If international judges in a UN judicial entity cannot ensure that the liberty and other human rights of the eight men are restored, then we have to ask: where is international justice today, and does it have a future?
 See, Philpot, Robin, “International criminal justice bares its colonial fangs: Why are the acquitted and freed Rwandans sitting in modern-day penal colonies, in Canadian Dimension, 21 February 2022, here.
 International Symposium, Geneva, ‘International Criminal Tribunal for Rwanda: Model or Counter Model for International Criminal Justice? The Perspectives of the Stakeholders’, Session 4, Geneva, 10July 2009, p 12. Available at www.ictr.org.
 For example, the recent 27 May 2022 Appeals Chamber decision affirms the MICT’s duty of care to the relocated persons where the Relocation Agreement is not carried out (para 24), and indicates that the Duty Judge informed the UNSC in a January 2022 letter that the persons were under house arrest and had their identity documents confiscated (para 25), but it also held that Article 28 of the ICTR Statute was not a mandate for Tanzania as the Host State to cooperate re re-location.
See 27 May 2022 Appeals Chamber decision, para 37 (noting the “potentially severe impact of Niger’s actions on fundamental human rights of the Relocated Persons, as well as on the rule of law more generally”).