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

Ashgate Companion Symposium: DiBella on Equality of Arms in International Criminal Law

SCHABAS JKT(250X172)pathWe are delighted to welcome Amy DiBella for this guest post. Amy is a defence lawyer based in Pittsburgh, Pennsylvania. She wrote her chapter in the Ashgate Research Companion to International Criminal Law: Critical Perspectives with Charles C. Jalloh, Assistant Professor at the University of Pittsburgh. 

In our chapter, “Equality of Arms in International Criminal Law: Continuing Challenges”, we considered the meaning of equality of arms and how is it implemented in international criminal law.

The analysis reveals the disparity between the theory and practice. Although the principle evokes a broad evaluation of fairness, in practice, it is “a lofty goal … applied feebly”. The chapter offers multiple examples of courts shying away from equality and instead embracing a more conservative interpretation of the principle. Rather than require equal resources, the legal principle has been interpreted to require no substantial disadvantage, an adequate opportunity or sufficient time.  Following a brief discussion of the link between equality of arms and the public trial guarantee, the chapter considers how equality of arms is more than a trial right; it is an expansive institutional entitlement which relates to the structural independence of the defence offices. Continue reading

Prosecutorial conduct in question (again) at the International Criminal Court

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Uhuru Kenyatta (photo credit: Wikipedia)

Readers of this blog will probably be aware that the Prosecutor of the International Criminal Court spectacularly dropped the charges against Francis Muthaura, co-accused to Kenyan President Uhuru Kenyatta, last month. This occurred after it was revealed that a key prosecution witness (known as Witness 4) had admitted to lying in earlier testimony and had recanted his testimony. This important piece of exculpatory evidence was not disclosed to the defence until after the confirmation of the charges hearing in January 2012, even though the admission had been made in 2010.

On the basis of the Muthaura acquittal and the fact of the non-disclosure, Kenyatta asked for the charges against him to also be dropped. The Kenyatta defence team further pointed to the fact that large swathes of prosecution evidence (including an estimated 24 of the 31 fact witnesses for the prosecution) had been gathered after the confirmation of charges hearing. In the alternative, Kenyatta submitted, the matter should be referred back to the Pre-Trial Chamber for reconsideration of the confirmation of the charges decision.

Last Friday, Kenyatta’s request was denied. Trial Chamber V held that a stay or termination of proceedings would be a disproportionate response. It also held that to refer the case back to the Pre-Trial Chamber on the basis of changes in evidence would exceed the Chamber’s statutory powers, insofar as it would essentially be exercising appellate functions over the original confirmation decision. Nonetheless, the Office of the Prosecutor did not escape censure in the decision. The majority noted its concern at:

the considerable volume of evidence collected by the Prosecution post-confirmation and the delays in disclosing all relevant evidence to the Defence.

Judge van den Wyngaert put her criticisms in even stronger terms, referring to the Prosecution’s ‘negligent attitude’. In a very strong separate opinion, Judge van den Wyngaert pointed out that the prosecution had failed to give any proper justification for the large amount of evidence collected post-confirmation, besides vaguely referring to the security situation in Kenya.

This incident is not the first time the Office of the Prosecutor has been criticised for its investigative conduct, of course. But this decision calls into question the appropriateness and effectiveness of reprimands as remedies, and whether reprimands are sufficiently punitive to deter carelessness when it comes to prosecutorial obligations.  A number of alternative sanctions may serve a greater deterrent function. For example, Caianiello has suggested that repeated violations of the disclosure obligation should, in exceptional cases, lead to a permanent stay of proceedings. But, as pointed out in the present decision, this remedy will often be disproportionate to the harm suffered. So what are the alternatives? Continue reading