Litigating for Compensation for the Acquitted

When Major F. X. Nzuwonemeye, one of the Co-Accused in the “Military II” case at the ICTR, was acquitted by the Appeals Chamber in February 2014, he had already served 2/3rds of the 20-year sentence which had been imposed by the Trial Chamber. [1]  In most jurisdictions, the completion of 2/3rds of the sentence makes the person eligible for release. The legal grounds for acquittal included a fair trial violation of notice, as well as evidentiary errors by the Trial Chamber. Major Nzuwonemeye is now living in a “safe house” in Arusha, Tanzania, because no country where he can safely live has accepted him. See my posting at https://ilg2.org/2014/05/19/acquitted-but-still-not-free/ .

At the time of his acquittal, the client had already served the punishment for the crimes for which he was acquitted. On its face, this is a grave and manifest miscarriage of justice. It should be a given that an international tribunal would remedy this violation of human rights.

 But this did not happen. In August 2015, the MICT (which replaced the ICTR and ICTY) dismissed our Motion for Compensation and Damages for lack of jurisdiction. The complete pleadings are available on the MICT website at www.unmict.org.  They include the Defence Motion and Additional Submissions, the Prosecution’s Response and Additional Submissions and Decisions, between February and August 2015.

Unfortunately, the denial of compensation to Major Nzuwonemeye and other acquitted persons was not unexpected. No compensation has been granted except in one ICTR case: Rwamakuba was awarded $2000 for a breach of his right to counsel. This pittance effectively ridicules the violation of his rights.

Although there is no legal right to compensation in the Tribunal’s Statute, appellate jurisprudence unequivocally holds that there is an obligation to provide effective remedies for human rights violations. Therefore, if the Tribunal decided to provide compensation as a remedy to those who were acquitted, it would figure out a way.

In fact, in 2000, the Presidents of the ICTY and ICTR, Judge Jorda and Judge Pillay, requested that the Statutes for the ad hoc tribunals be amended to include the competency for compensation in three situations: a) when a person has been acquitted; b) when there has been a violation resulting from wrongful arrest, prosecution or conviction; c) unlawful detention. This never happened.

The failure to provide a financial remedy to the acquitted cements the well-known notion that the possibility of acquittal was never envisioned by the Tribunal. A spokesman for the ICTR, then ICTR Deputy Registrar Everard O’Donnell explained:

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.[2]

I do not think that the absence of compensation in the ICTR or ICTY Statutes was an oversight, or an act of negligence. Rather, it objectively illustrates that the presumption of guilt is alive and well in international justice.

Will the presumption of guilt be allowed to continue to smother the right to be presumed innocent?   Will violations of human rights principles of fair trial be remedied?   The successful survival of international justice depends on the answers.

[1] Major Nzuwonemeye was represented at trial and on appeal by Lead Counsel Chief Charles A. Taku and Co-Counsel Beth S. Lyons.

[2] International Symposium, Geneva, ‘International Criminal Tribunal for Rwanda: Model or Counter Model for International Criminal Justice? The Perspectives of the Stakeholders’, Session 4, Geneva, 10 July 2009, p 12. Available at www.ictr.org.

 

INTERNATIONAL WOMEN’S CONFERENCE – 28-29 NOVEMBER 2015 – LONDON

On 28-29 November 2015, an International Conference entitled “Women Fighting Back:  International and Legal Perspectives” will be held at London South Bank University in London, England.

It is organized by the Haldane Society of Socialist Lawyers, the European Association of Lawyers for Democracy and World Human Rights (ELDH) and the International Association of Democratic Lawyers (IADL).

Some of the speakers include Prof. Emerita Angela Davis, Prof. Rashida Manjoo, Wafa Kafarna, Frances Webber, Barbara Spinelli, Mara Clarke.  Please see the full listing at http://www.haldane.org.

Additional information about workshops, registration and other logistics is available at http://www.haldane.org.

Thanks.

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.

The Intermediary Industry and the ICC

It is well-known that the ICC cannot function without intermediaries.  This is especially true for units which directly interact with intermediaries on a regular basis, such as the Office of the Prosecutor (OTP), the Victims Participation and Reparations Section (VPRS), the Public Information and Documentation Section (PIDS) and the Trust Fund for Victims (TFV).   But other units dealing with victims and witnesses (such as the Victims Witness Unit [VWU], or the Office of Public Counsel for Victims [OPCV]) may also use intermediaries.   Intermediaries  are a permanent fixture within the ICC.

Intermediaries – in the broadest sense –  are “go betweens” and play critical roles in all sorts of transactions in different societies and cultures.   They can be individuals, or organizations.   Even if intermediaries operate sometimes as a “cottage industry,” the ICC/OTP’s reliance on them has encouraged  their use to evolve into a more complex, multi-faceted industry.

In March 2014, the ICC adopted Guidelines, a Code of Conduct and a Model Contract for Intermediaries http://www.icc-cpi.int/en_menus/icc/legal%20texts%20and%20tools/strategies-and-guidelines/Pages/default.aspx,  With these steps, the efforts to institutionalize and regulate intermediaries have reached a new level.   They include a provision for a Working Group on Intermediaries to monitor the Guidelines for the first two years (through March 2016), and monitoring by a permanent observation mechanism (which is not described in the Guidelines).   A detailed review of the Guidelines is scheduled eighteen months after their adoption (September 2015).  Perhaps these are preliminary stages toward an eventual Convention on Intermediaries.   These provisions recognize that the intermediary controversy is not yet settled, but continues as a “live” issue within the international justice community.

The Guidelines are not legally binding or enforceable, and apply differently to the three categories of intermediaries identified in Section 3:  intermediaries under contract;  intermediaries approved by the Court (through an affidavit), and unapproved intermediaries (described as those who are “self-appointed” or are “one-off”).  The terms and conditions for each category are detailed, including selection criteria and accountability, possible forms of remuneration, compensation or reimbursements, etc.  The intermediaries’ current and envisioned tasks and functions are detailed in “Annex I.”

It is easy to get “lost” in these suggested guidelines and general principles and to lose sight of the fundamental question:  Why are intermediaries needed at all by the ICC, and, particularly, by  the Prosecution?

The answer is simple:  Intermediaries do the work “on the ground” that the ICC/OTP cannot do.  But, why can’t the OTP investigators and legal assistants do the work necessary for investigations and with potential witnesses?  First, does the OTP choose as investigators and legal assistants individuals who have worked “on the ground” in countries and struggles in which the ICC is interested (aka “situations” and “affected communities”)?  Second, what is the ICC’s reputation in a particular region?  Is the ICC an entity which is trusted “on the ground?”  Is it perceived as delivering justice in a fair manner?  Is it likely that a person would provide information to the ICC?

Where negative perceptions and practices exist in respect to the ICC, I do not think that the use of intermediaries solves these underlying problems.  Guidelines, contracts and codes of conduct for intermediaries do not alter how the ICC is perceived.  If anything,  reliance on  intermediaries for the functioning of the ICC “in the field” invites even more problems.   Continue reading

Acquitted But Still Not Free

ICTRIn February 2014, Lead Counsel Chief Charles A. Taku and I (with our defence team) won the acquittal of our client, Major F.X. Nzuwonemeye, former Commander of the Reconnaissance Battalion, Rwandan Army in April 1994, in the Ndindiliyimana et al. (“Military II”) case at the International Criminal Tribunal for Rwanda (ICTR).  The Appeals Chamber reversed the Trial Chamber’s convictions for crimes against humanity and violations of common article 3, for the murders of the Belgian peacekeepers and former Prime Minister Agathe Uwilingiyimana.

Major Nzuwonemeye joined the other ICTR acquitted persons and those who have completed their sentences (about ten in total), who live under U.N. auspices in a “safe house” in Arusha, Tanzania.  One person, Dr. Andre Ntagerura, has lived in a “safe house” since his acquittal at trial in 2004.   The reason is that no country where these men can live in safety and without fear will accept them.   They are separated from their families.   Many of their families live in Europe, in countries where these men were initially arrested, prior to transfer to the ICTR.

These men are former members of the Rwandan government and military in 1994 – the very enemy against whom the Rwandan Patriotic Front, led by Rwanda’s current President Paul Kagame, waged war.   A year or so ago, Rwanda expressed its willingness to accept these persons.  Based on the government’s past and current practices and attitudes towards its opponents (both inside and outside the country), the men fear for their safety if they were to set foot on Rwandan soil.

Their fears are unequivocally justified.  The environment in Rwanda under the current government is unsafe for anyone or any party perceived to be in opposition to the regime.  As The Economist’s editorial on the Parliamentary elections in September 2013 stated, “Political opposition has been allowed only where it does not question the RPF’s role as the country’s saviour.”

The opponents of the RPF – whether political candidates, or journalists or other individuals – are imprisoned or found dead.  In the last Presidential election in 2010, the First Vice-President of the Democratic Green Party [one of the three opposition parties excluded from the ballot], Andre Rwisereka, was found dead a few weeks prior to the elections.  Leaders (as well as members) of other opposition parties, such as Me. Bernard Ntaganda, Deogratias Mushayidi, Dr. Theoneste Niyitegeka, and Victoire Umuhoza Ingabire remain incarcerated.   Journalists have been killed inside and outside the country.  In fact, Rwanda ranks 162nd out of 180 countries in the 2014 Reporters Without Borders press freedom index.

Victoire Ingabire, President of the Unified Demcratic Forces (FDU-Inkingi), a coalition of Rwandan opposition parties, returned to her home country after 16 years in exile in the Netherlands to challenge President Kagame in the last Presidential election.  Instead, she was arrested and prosecuted for “genocide ideology,” “divisionism” and other charges related to terrorism and is now serving a sentence of fifteen years (see, Amnesty International’s  2013 publication, Rwanda in Jeopardy:  The First Instance Trial of Victoire Ingabire).   In a Resolution (23 May 2013), the European Parliament stated that it “strongly condemns the politically motivated nature of the trial” and noted that “respect for fundamental human rights, including political pluralism and freedom of expression and association, are severely restricted in Rwanda, making it difficult for opposition parties to operate and for journalists to express critical views.”   Continue reading