It is fashionable in some quarters to denigrate and distort the efforts of the International Criminal Tribunal for Rwanda, to wilfully suppress the achievements it has recorded in the most challenging conditions and under new senior management through the hard work of dedicated staff, and to draw invidious comparisons with national domestic machineries of justice and the Yugoslavia Tribunal in The Hague, which is operating in a different environment that dictates its own approach to various aspects of its mandate. To the extent that Amnesty International has joined this bandwagon, the Tribunal finds it a matter of regret. To the extent that Amnesty International wishes to assist the ICTR in its task of dispensing justice for the victims of the genocide, and in that spirit is prepared to offer constructive remarks and suggestions, then the Tribunal welcomes its contribution.
The ICTR's comments and clarifications on some significant issues contained in Amnesty International's report are as follows.
Jean Kambanda (former Prime Minister of Rwanda)
Amnesty International criticises Mr. Kambanda's detention in a safe house, but ignores the fact that a safe house can genuinely be for the accused's own protection and comfort. Tihomir Blaskic, indicted by the International Criminal Tribunal for the former Yugoslavia, was for a long time detained at the ICTY in a safe house which was greatly more commodious than the cells of the Detention Unit. Paragraph 41 of the ICTY's Fourth Annual Report states: “41. The conditions of Blaskic's detention were again modified this year in a Decision of the President of the Tribunal rendered on 9 January 1997, which increased the exercise and fresh air periods enjoyed by the detainee, as well as permitting him more familial visits than he had been previously allowed". ICTR does not recall Amnesty criticising this arrangement.
Amnesty International seems to suggest that it is never-permissible for a detainee to be detained in any place other than the United Nations Detention Unit. This is certainly not the position under the Statute or Rules of Procedure of the ICTR, by which the Tribunal is governed. Rule 64 provides:-
Upon his transfer to the seat of the Tribunal, the accused shall be detained in facilities provided by the host country or by another country.. The President may, on the application of a party, request modification of the conditions of detention of an accused. (Emphasis added}.
The wording of this Rule shows that Amnesty's comments and suggestions have no basis and is ill-founded. What is important is that all the Rules and Regulations of the Tribunal and international standards concerning detention are fully respected. The ICTR has ensured this. In that connection the Tribunal has facilitated visitation to Mr. Kambanda by the International Committee of the Red Cross (ICRC) the body with the most recognised mandate to monitor respect for international human rights standards in conditions of detention.
Amnesty International states in its report that it is "concerned that a dangerous precedent has been set for national authorities to agree that they can overlook these international standards in some cases". First, as shown above, no precedent has been set by this Tribunal for overlooking international standards. On the contrary , we have ensured the application of those standards. Second, the precedent of using a "safe house" was in fact set in The Hague with the detention of Tihomir Blaskic in a "safe house".
Froduald Karamira (former vice-president of the MDR political party)
Amnesty International alleges that the ICTR did not "strenuously pursue" its "request" to the Government of Ethiopia for Karamira's transfer to Arusha as a "concession" to the Rwandan Government. This is another example of armchair allegations that have no basis in fact. The ICTR did not file a request for the surrender of Mr. Karamira with the Ethiopian authorities, let alone fail to "strenuously pursue" it as alleged by Amnesty.
The Tribunal recalls that it has concurrent jurisdiction with national Governments, including the Government of Rwanda, to prosecute individuals responsible for the Rwanda genocide. While the Tribunal has primacy of jurisdiction, it does not have exclusive jurisdiction. As a practical matter, given the Tribunal's limited life span, it will not be able to prosecute the thousands of individuals implicated in the genocide. This necessarily means that the bulk of these individuals will be prosecuted in Rwanda.
Alleged unlawful detention of Esdras Twagirimana
Mr. Esdras Twagirimana was mistakenly arrested during the Tribunal's Operation NAKI on 17 July 1997, during which several high-ranking individuals in the former Rwandan Government suspected or charged with genocide were arrested in Nairobi, Kenya. Amnesty's account of this case misses the fundamental point that, contrary to Amnesty's allegations, Esdras Twagirimana was not detained by this Tribunal. The facts:
a) After the discovery that Mr. Twagirimana was arrested by virtue of having been mistaken for another suspect, he was briefed accordingly. In particular, he was informed that he was going to be transferred to Nairobi where he was living;
b) Mr. Twagirimana then informed the Tribunal authorities that he was residing illegally in Kenya and that he would probably be arrested and transferred to Kigali if he were to be returned immediately to Nairobi. Naturally fearing this prospect, he requested the ICTR's assistance to assist with the regularization of his immigration status so that he could reside either in Kenya or in Tanzania, and he signed a waiver to that effect;
c) High-Ievel contacts were then initiated by the Registrar with the Kenyan and Tanzanian authorities and with the UNHCR in Nairobi and Dar es Salaam;
d) The Tanzartian authorities offered refugee status to Mr. Twagirimana and his family if the latter accepted to live in a refugee camp. This offer was rejected by Mr. Twagirimana. The UNHCR initially accepted to grant legal status to Mr. Twagirimana if no criminal charges were outstanding against him by the Government of Kenya;
e) Negotiations were still underway when Mr. Twagirimana began insistently to request that he be released. There was no choice but to return him to Nairobi where he was arrested, since he had no ties with Tanzania nor any regular status vis-à-vis the Tanzanian immigration authorities.
On the basis of previous discussions, it was agreed that Mr. Twagirimana would be transferred to the Kenyan authorities (where he was in fact arrested and handed over to the Tribunal) with the understanding that UNHCR would take the necessary steps to grant him refugee status.
f) It should therefore be clear that:
(I) the stay of Mr. Twagirimana in Arusha was made at his request and was consensual;
(ii) the Tribunal did its very best to cope with a humanitarian situation, the final resolution of which was neither in the Tribunal's hands nor its province;
(iii) from the day Mr. Twagirimana expressed the wish to go back to Kenya, arrangements were made accordingly, with the added precaution of requesting UNHCR closely to follow his treatment by the Kenyan authorities.
By requesting the Tribunal's assistance to work for the regularization of his immigration status Mr. Twagirimana was no longer detained under the authority of the Tribunal. The category of persons who are detained under the authority of the Tribunal - and thus fall within the Tribunal's rules and regulations - is not expandable at will. It comprises accused, suspects and witnesses, and no others.
A few further clarifications: The Kenyan authorities made it very clear to the Tribunal that they were not willing to grant any special treatment to Mr. Twagirimana. Mr. Twagirimana was briefed accordingly. That is why contacts were made with UNHCR in Dar es Salaam and Nairobi to provide him either with refugee status prior to his arrival at Nairobi, or to make the necessary arrangements for his case to be followed-up with special emphasis after his arrival in Nairobi.
On the basis of previous contacts with UNHCR, the transfer of Mr. Esdras Twagirimana was scheduled for 20 September 1997. At the last minute UNHCR informed the Tribunal of its inability to secure, as agreed earlier, "special treatment" for Mr. Esdras Twagirimana.
As regards compensation, it may be helpful to look at an ICTY precedent. At the ICTY, one Goran Lajic was arrested, having been mistaken for the accused Goran Lajic, indicted by the ICTY in the Keraterm camp case (IT-95-8-T). When the error was discovered, he was released (see Order for the Withdrawal of the Charges Against the Person Named Goran lajic and for His Release, 17 June 1996). His counsel, Toma Fila, requested compensation. This request was referred to the Under-Secretary-General for Legal Affairs and Legal Counsel of the UN who quite unequivocally replied that compensation by the United Nations was in these circumstances quite out of the question.
The Tribunal is committed to avoiding lengthy pre-trial custody of accused persons, and welcomes constructive suggestions in that regard. The Tribunal cannot be held responsible for the length of pre-trial detention of accused persons detained under the domestic law of any country prior to their physical surrender to the Tribunal. Once suspects or accused are under the custody of the Tribunal, however, the Tribunal has consistently acted within the provisions of its Statute and Rules of Procedure. In this context, it is necessary , given the magnitude of the crimes under the Tribunal's jurisdiction - genocide, crimes against humanity, and violations of Article 3 common to the Geneva Conventions - to weigh the need to apprehend the accused persons at the earliest opportunity and commence the legal/judicial processes (which often has several initial steps before the commencement of the trial proper) against the possibility of the accused individual eluding justice completely.
Prosecution of Alleged Abuses by the Rwandan Patriotic Front (RPF)
Genocide and other violations of international humanitarian law occurred in Rwanda in 1994. The Tribunal's mandate is to prosecute persons responsible for these gross violations, and that is exactly what it has been doing and will continue to do. The ICTR prosecutes accused individuals on the basis of concrete evidence, not on the basis of political considerations.
The ICTR's Witness and Victims Support Section (WVSS) has successfully brought to and returned from Arusha more than 100 protected witnesses who have testified in trials in the Tribunal. Of these witnesses, a total of 10 witnesses considered to be particularly at risk have been permanently relocated. No potential or actual witness before the Tribunal has lost his or her life on account of such witnesses' actual or potential testimony or the Tribunal. The reality of the effectiveness of the Tribunal's work in this crucial area is therefore vastly different from that depicted by Amnesty International's report.
The track record of this section is all the more significant given the cultural dynamics and specific environment of the Great Lakes region where a culture of witness protection is not deeply rooted, as well as the current security situation in parts of Rwanda, all of which pose a daunting challenge to the Tribunal and the international community.
In view of the above, the expertise and experience required for effective work in witness support is a combination of legal academic qualification and relevant field experience and knowledge of the operating environment coupled with a police or military/ security background, socio-psychological training, and a great sense of discretion, tact, and dedication. All staff of the WVSS have these qualifications. Additional staff with relevant qualifications have been recruited to work in this area in recent months, and further recruitment is ongoing. A sub-unit of the section has been established and staffed in Kigali. Furthermore, the section has benefited from the assistance of experts and consultants seconded to the Tribunal by UN Member States such as the United States and the United Kingdom. Thus, Amnesty's statement in its report, that "In October 1997 the Victims and Witnesses Unit did not have any person who had expertise and experience of witness protection at a national level and Amnesty International understands that this had not changed" can only be described as wilfully misinformed at the least.
ICTR agrees that "the Tribunal will only attract political and financial support of [S]tates if it is able to publicize its activities effectively". To this end the Registry has overhauled and reinvigorated the Tribunal's public information and communication strategy. This new strategy is proactive. It is directed simultaneously at the media, Governments, specialized professional groups, academia, and the general public, with the strategic aim of cultivating, enhancing and sustaining their support for the Tribunal's work. In this connection, the Registrar and other designated officials of the Tribunal have in the past year given interviews and published articles in a wide range of international media, and representatives of several of these media have visited the Tribunal and observed its work firsthand. These media are too numerous for comprehensive listing here, but include CNN, BBC, Asahi Shimbun, The New York Times, Le Monde, The London Guardian, Radio France Internationale, and the African media.
The quality, quantity and diversity of the products of the Press and Public Affairs Unit have been significantly improved. In addition to its general press releases and the periodical lCTR Bulletin, the unit now publishes an ICTR Update which provides more detailed information about the Tribunal's legal/judicial processes and is aimed at lawyers, academics, institutes, Governments and nongovernmental organizations who are interested in a more in-depth analysis of the work of the Tribunal.
At the same time, the Tribunal has been actively and systematically disseminating its work on the electronic information superhighway through an arrangement with Africa News Service, a respected non-profit news service in the United States whose web site is the most popular Africa-related resource on the Internet (receiving more than a million hits each month). This organization also publishes the Tribunal's press releases, updates and other material on Africa News Online, a daily news service distributed to major online services such as Lexis/Nexis, Comtex, CompuServe, Data Times, and Financial Times Information. Furthermore, the ICTR's own website is scheduled to become operational in May 1998, and will feature the Tribunal's basic documents, decisions, judgements, directives, manual for practitioners, and other material. ICTR has commenced a systematic liaison with law schools and other relevant academic institutions around the world, whereby the work of the Tribunal has been given center stage in their international law, human rights and criminal justice curriculum. The mailing list maintained by the Press and Public Affairs Unit has been radically expanded and is continuously updated.
The feedback the Tribunal has received from its target audiences clearly indicates that the image of the ICTR has changed fundamentally in a positive direction. At the same time, the Tribunal continues to receive a steady stream of visiting delegations from Member States, including recently a U.S. Congressional delegation, the Minister of Justice of Belgium and the Minister of State for Foreign and Commonwealth Affairs of the United Kingdom.
It is curious indeed that all these improvements are due to a public information set-up that is, as the Amnesty International's report condescendingly put it, "confused and uninformed." It is obvious from the foregoing that the Tribunal has a public communication strategy that has proven successful and progressively effective over the past several months. Furthermore, Amnesty International wades into administrative matters in the ICTR that are beyond its human rights role when it addresses the question of the vacant position of a "Chief of Information". Nevertheless, as part of implemented and continuing internal administrative reforms, the senior management of the Tribunal initiated action - well before the Amnesty report - to fill this position.