Human Rights Brief

Volume 19 | Issue 1 Article 7

2011 Updates from the International and Internationalized Criminal Courts Claire Grandison American University Washington College of Law

Benjamin Watson American University Washington College of Law

Brynn Weinstein American University Washington College of Law

Adam Dembling American University Washington College of Law

Yaritza Velez American University Washington College of Law

See next page for additional authors

Follow this and additional works at: http://digitalcommons.wcl.american.edu/hrbrief Part of the Criminal Law Commons, Human Rights Law Commons, and the International Law Commons

Recommended Citation Grandison, Claire, Benjamin Watson, Brynn Weinstein, Adam Dembling, Yaritza Velez, and Michelle Flash. "Updates from the International and Internationalized Criminal Courts." Human Rights Brief 19, no. 1 (2011): 36-43.

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This column is available in Human Rights Brief: http://digitalcommons.wcl.american.edu/hrbrief/vol19/iss1/7 Grandison et al.: Updates from the International and Internationalized Criminal Cou

UPDATES FROM THE INTERNATIONAL AND INTERNATIONALIZED CRIMINAL TRIBUNALS

INTERNATIONAL CRIMINAL COURT tigative strategy within the Office of the evidence, witnesses, and affected com- Prosecutor (OTP) threatened its indepen- munities. Implicated officials might also ICC AUTHORIZES PROSECUTOR’S dence and impartiality during the course threaten the safety of victims who wish to REQUEST TO OPEN INVESTIGATION IN of investigations in the past. In these prior participate as witnesses. situations, the OTP failed to investigate all CÔTE D’IVOIRE The investigation in Côte d’Ivoire sides of a conflict or issued inconsistent On October 3, 2011, Pre-Trial Chamber demands an independent and impartial charges for similar crimes. In other cases, III of the International Criminal Court approach to ensure not only that affected it failed to trace responsibility for crimes to (ICC) authorized Prosecutor Luis Moreno- communities experience meaningful jus- the higher levels of government. Together, Ocampo’s request to open an investiga- tice, but also that the ICC avoids costly these discrepancies foster perceptions that tion in Côte d’Ivoire. In his request, the perceptions of bias and maintains sup- the ICC is not independent from govern- Prosecutor sought authority to investigate port from the international community in ment control or that it favors one group crimes within the Court’s jurisdiction com- its efforts to confront impunity in future over another. The failure to move forward mitted during Côte d’Ivoire’s post-election situations. The OTP can foster coopera- with investigations of certain subjects cre- violence in 2010-2011 between forces tion by strictly adhering to core values ates an impression that they are inno- loyal to incumbent President Alassane of justice and fairness, which will attract cent, severely damaging the restorative Ouattara and those loyal to now-ousted allies within Côte d’Ivoire who are willing efforts of affected communities who know former President Laurent Gbagbo. Three to collaborate. The OTP might also openly these individuals to be responsible and had thousand people were killed, 72 disap- denounce non-cooperation to encourage expected the Court to expose the truth. peared, 520 were arbitrarily detained, and the international community to exert pres- 100 cases of rape were reported. The In fulfilling its investigative mandate, sure on the state to fulfill its obligation to authorization is based on a finding that the the OTP must identify patterns of crimes cooperate with the Court. In all, Prosecutor Prosecutor established a reasonable basis and trace the chain of responsibility to indi- Ocampo must seize this opportunity, as the to believe that crimes within the jurisdic- viduals most responsible for the crimes. future of the Court may depend on it. tion of the ICC had been committed by The principles of independence and impar- both pro-Ouattara and pro-Gbagbo forces. tiality require the OTP to investigate alleged ICC APPEALS CHAMBER CONFIRMS Though Côte d’Ivoire is not a State Party perpetrators on all sides, which in the situ- THE ADMISSIBILITY OF CASES IN THE to the ICC, President Ouattara confirmed ation in Côte d’Ivoire includes agents and SITUATION OF KENYA its acceptance of ICC jurisdiction, most forces loyal to President Ouattara, many recently in May 2011. Article 12(3) of of whom now occupy key government On August 30, 2011, the ICC Appeals the Rome Statute—the ICC’s founding positions. Yet the OTP is highly dependent Chamber confirmed the admissibility of treaty—allows non-States Parties to accept on government cooperation while inside a The Prosecutor v. William Samoei Ruto, ICC jurisdiction on an ad hoc basis. country to fulfill its document collection Henry Kiprono Kosgey and Joshua Arap and witness interview obligations, which Sang and The Prosecutor v. Francis Kirimi With elections for the next Chief makes it difficult to effectively investigate Muthaura, Uhuru Muigai Kenyatta and Prosecutor approaching in December, the and prosecute such upper-level individuals. Mohammed Hussein Ali. These decisions investigation presents one of Prosecutor underscore the ICC’s commitment to the Ocampo’s final opportunities to bolster Prosecutor Ocampo must therefore principle of complementarity as outlined the legitimacy of his office, strengthen its demonstrate in his final months that he can in Article 17(1)(a) of the Rome Statute, the legacy, and provide a positive starting point strike a delicate balance in Côte d’Ivoire — founding document of the Court. Under for his successor. To do so, the Prosecutor one that achieves the goals of impartiality Article 17, the Court may hear a case only must develop a coherent and well-executed and independence while maintaining the after finding that a State with domestic investigation strategy that communicates degree of state cooperation that is critical jurisdiction is unwilling or unable to inves- the ICC’s mandate to victims and affected for a complete and thorough investiga- tigate or prosecute. communities who seek justice, and sets tion. On one hand, the failure to carry out the tone for the prosecution of perpetra- an impartial investigation of those most On March 31, 2010, Pre-Trial Chamber tors throughout Côte d’Ivoire. In light of a responsible from all parties to the conflict II granted the Office of the Prosecutor’s recent report by Human Rights Watch, the risks delivering the kind of “victor’s jus- (OTP) request to open an investigation investigation in Côte d’Ivoire has implica- tice” that neglects victims and fails to deter propio motu (“by its own volition”) into tions for the credibility of the ICC and those who might view crimes as a means alleged crimes against humanity in Kenya, presents an opportunity to improve on past to victory. On the other hand, the OTP committed during the post-election vio- techniques. must remain unbiased without alienating lence that left approximately 1,100 people state officials; otherwise, those implicated dead, 35,000 injured, and up to 600,000 The report found that the absence of may frustrate the investigation process forcibly displaced in 2007-2008. On March a well-communicated and coherent inves- out of self-interest, restricting access to 8, 2011, Pre-Trial Chamber II issued sum-

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84823_AU_HRB.indd 36 12/7/11 2:16 PM Human Rights Brief, Vol. 19, Iss. 1 [2011], Art. 7 monses to appear for six Kenyan nationals fair trial rights, the creation of new offices to align its judicial system to international accused of crimes against humanity under and procedures to ensure judicial indepen- standards, and will be a litmus test for Article 7(1) of the Rome Statute. dence, and the inclusion of Rome Statute future referrals, which could ease the case- crimes in national jurisdiction. The govern- load of the ICTR in compliance with the On March 31, 2011, the government of ment also laid out plans for a bottom-up goals of its Completion Strategy. Kenya, a State Party to the Rome Statute investigative process that would focus first since 2005, filed applications challenging The ICTR modeled its referral process on suspects at a lower level, and then work the admissibility of both cases. On May 30, after the International Criminal Tribunal its way up to the individuals charged before 2011, Pre-Trial Chamber II issued rejec- for the former Yugoslavia (ICTY), which the ICC. Though the Pre-Trial Chamber II tions to these applications, and on June has successfully referred thirteen cases to and the Appeals Chamber welcomed these 6, 2011, the Kenyan government filed an national jurisdictions. As set forth in UN measures, they stated that neither reforms appeal, citing Article 17(1)(a) of the Rome Resolution 1503 (2003), a culminating ele- nor plans for future investigations met Statute. In filing its appeal, the Kenyan ment of the ICTR’s Completion Strategy the requirements to prove actual ongoing government argued that the Court had is empowering national judicial systems investigations of the same individuals and applied the incorrect standard to determine to promote the rule of law. When a state for the same conduct. whether Kenya was fulfilling its duty to maintains a level of juridical competence investigate the case under Article 17(1)(a), The Court’s decision confirming the that protects the rights of the accused, per and that the Court had ignored or misin- admissibility of both cases in the situation Article 20 of the ICTR Statute, the ICTR terpreted evidence that investigations were in Kenya furthers the Court’s goal of pro- may facilitate the transfer the cases of ongoing in Kenya. viding an impartial forum for prosecution intermediate and lower-rank individuals. when national courts are found unwilling Article 20 requires that the accused have On August 30, 2011, the Appeals or unable to do so. To effectively fill this equality before the court, a fair and public Chamber rejected the appeal and con- role, the Court’s responsibility extends hearing, a presumption of innocence, and firmed the ruling of Pre-Trial Chamber beyond the proceedings to ensuring that minimum guarantees of fairness during II. In clarifying Article 17(1)(a), the Court the restorative effects of justice reach geo- trial. The referral process then falls under ruled that the standard used to determine graphically distant victims and affected Rule 11 bis of the Rules of Procedure and whether a case is being genuinely investi- communities.With Kenya’s 2012 elections Evidence for the ICTR, which requires gated depends on the stage of the proceed- approaching, the proceedings send a strong that a specially designated Trial Chamber ings. After issuing an arrest warrant or message to potential perpetrators of vio- assess the state’s compliance with Article summons to appear, the Court applies the lence and to the international community 20. The state must have a penal code “same person/same conduct” test, which at large that the ICC is standing by to and penalty structure in line with ICTR ascertains whether the state has itself taken investigate and, if necessary, prosecute standards, which includes prohibiting the concrete steps to determine whether the should Kenya again experience violence. death penalty for all referred cases, pro- same individual is responsible for substan- The principle of complementarity allows tecting witnesses, and providing adequate tially the same conduct as alleged in the for the truth behind alleged crimes to be detention facilities. After granting a refer- case before the ICC. In the present case, revealed, one way or another. ral order, the ICTR transfers prosecution the Court found that the Kenyan govern- materials and the accused to the state, and ment had failed to demonstrate that it had Claire Grandison, a J.D. candidate at the may order observers to monitor and report taken specific and concrete steps to investi- American University Washington College on the proceedings and facilities, revoking gate the same individual and the same con- of Law, covers the International Criminal the referral at any time prior to judgment duct, adding: “It is not sufficient merely to Court for the Human Rights Brief. if necessary. assert that investigations are ongoing.” To aid in the Uwinkindi referral deci- The Appeals Chamber’s decision is thus AD HOC TRIBUNALS sion, the ICTR Trial Chamber accepted an affirmation of the principle of comple- amicus curiae briefs from the Rwandan mentarity and a clear declaration that both REPUBLIC OF RWANDA RECEIVES FIRST Government and several non-governmental cases will proceed within the jurisdic- REFERRAL CASE FROM ICTR organizations. The organizations expressed tion of the ICC. The Kenyan Section of On June 28, 2011, the United Nations concerns that Rwandan practices do not the International Commission of Jurists International Criminal Tribunal for Rwanda always respect written law. For example, has always supported ICC control of pro- (ICTR) announced its referral of the in a radio interview after Uwinkindi’s ceedings, arguing that Kenya needs to first war crimes case, that of Jean-Bosco arrest, Rwanda’s Minister of Justice vio- address issues such as poor political lead- Uwinkindi, to the Republic of Rwanda. lated Uwinkindi’s right to presumption ership, judicial and police reforms, and the This comes after many years of determined of innocence, saying he “would be a big need for a more robust witness protection efforts by the Rwandan government to catch” since he was “high up in the hierar- program before local justice mechanisms create an impartial court system that is chy” for planning and executing genocide. would be capable of trying these cases. capable of detaining, representing, and try- Further, the briefs noted that the public In its admissibility challenge, the ing indicted persons under internationally announcement of Uwinkindi’s conviction Kenyan government addressed many of recognized standards. While the referral in absentia by a Rwandan Gacaca Court these issues by referencing reforms codi- is not a carte blanche endorsement of the in 2009 would make witnesses reluctant fied in the new Constitution, among them Rwandan judicial system, it indicates cau- to testify, even though the conviction was a Bill of Rights designed to strengthen tious approval of Rwanda’s efforts thus far vacated. These concerns are particularly http://digitalcommons.wcl.american.edu/hrbrief/vol19/iss1/7 37 2

84823_AU_HRB.indd 37 12/7/11 2:16 PM Grandison et al.: Updates from the International and Internationalized Criminal Cou relevant, as five prior ICTR referral appli- demonstrated judicial competence of the tailored to each legal system, training cations were denied for similar concerns, countries that emerged from the former instructors to continue the WCJP’s work including capital punishment, detention Yugoslavia, the ICTY began to implement autonomously. Ultimately, the WCJP will conditions, and witness protection. its Completion Strategy in 2003, no longer make a compilation of legal precedent adding cases to its docket after 2004. The available for war crimes trials in the for- However, the amicus briefs also illus- Completion Strategy, as adopted by the mer Yugoslavia, and provide the tools and trate Rwanda’s significant leaps forward. UN Security Council, requires that the expertise necessary for local professionals In 2007, Rwanda abolished the death pen- ICTY focus its efforts on the formidable to use it effectively. alty, and has since adopted and amended task of building in-country judicial capac- Transfer Laws for accepting cases from Transferring the work of the ICTY both ity, working with and dependent on the the ICTR, according the accused a pre- demands and enables a competent national national judiciaries. sumption of innocence, bringing deten- judiciary. Several specialized chambers for tion facilities in line with UN General Passing the torch of the ICTY to coun- war crimes prosecution within the former Assembly Resolution 43/173, and estab- tries in the former Yugoslavia is a two- Yugoslavia now provide direct counter- lishing witness protection standards. Two pronged effort. First, as outlined in UN parts with which the ICTY can work. The witness protection programs now provide Resolution 1534 (2004), the ICTY and Court of Bosnia and Herzegovina, with the immunity for testimony. Some witnesses the international community must work cooperation of the ICTY, formed a War still express fear of being targeted should to build the capacity of national courts to Crimes Chamber that has successfully tried they testify, but they now have the option to try war crimes cases fairly and effectively. and convicted war criminals under its own testify via video link, deposition, or before Intricately bound with this task is the sec- criminal code. Ten indicted individuals a judge in another state. ond: the transfer of the vast amount of legal have been transferred to this court from the documentation, evidence, rules of evidence ICTY. Croatia is still undergoing massive These new witness protection measures and procedure, and specialized experience judicial reform, but has made considerable reflect a reinforced standard of judicial from the ICTY to the countries of the for- progress, establishing war crimes cham- fairness, providing for valuable testimony mer Yugoslavia. bers in county courts. In 2003, Croatia that might otherwise be unavailable for adopted new witness protection laws, fear of reprisal. Moreover, Rwanda can As set forth in UN Resolution 1503 and in 2005 it added a department in its now draw from its own experience with (2003), a culminating element of the Ministry of Justice to work with witnesses genocide trials in its local Gacaca courts ICTR’s Completion Strategy is empower- of war crimes. To date, Croatia has tried and its High Court. ing national judicial systems to promote one transferred case from the ICTY, and the rule of law. The principal effort in this While Rwanda must continue to address it is working with the ICTY to prosecute regard is the War Crimes Justice Project the concerns of the amicus briefs, the others locally. Serbia has also made sig- (WCJP). A joint effort of the ICTY, the ICTR is satisfied that the new measures nificant progress, setting up a War Crimes Office for Democratic Institutions and will ensure Uwinkindi has a fair trial. Chamber, and working with the ICTY on Human Rights at the Organization for The African Commission on Human and transfer cases. Through the Office of the Security and Co-operation in Europe Peoples’ Rights, an independent organiza- War Crimes Prosecutor, Serbia now issues (OSCE/ODIHR), and the United Nations tion affirmed by the Trial Chambers, will its own indictments and convictions, suc- Interregional Crime and Justice Research monitor the effectiveness of the new mea- cessfully prosecuting 383 persons to date. Institute (UNICRI), with 4 million of sures throughout the trial, ideally mitigat- funding from the European Union (EU), The greatest substantive contribution ing the risk of an unfair trial. In their own the WCJP formed in late 2010 after a nine- of the ICTY to the former Yugoslavia and amicus brief, the Rwandan Government month needs assessment to facilitate the the rest of the world is the vast amount states that until the Transfer Laws have transfer of the ICTY’s skills and resources. of precedent for international war crimes been tested by cases from the ICTR, they To meet the identified needs, the WCJP adjudication. The international commu- deserve a presumption of good faith, and performs several functions. First, it trans- nity, and in particular the International this is exactly what the ICTR has given lates key proceedings from the ICTY into Criminal Court and other ad hoc tribunals, them. Bosnian, Croatian, and Serbian. In total, will continue to interpret and build on this 60,000 pages will be translated by the precedent. However, the separate proce- FINAL ICTY FUGITIVE CAPTURED: end of 2011. Second, the WCJP has coor- dural contribution of the ICTY exempli- WHAT’S NEXT? dinated thirty-one professional develop- fied in these capacity building efforts is a The July 20, 2011 announcement of ment sessions in the former Yugoslavia for success in its own right. It will ultimately the arrest of Goran Hadži , the last of legal professionals, judges, and prosecu- increase trust in the competence of national 161 persons indicted by the International tors on various jurisprudential principles judiciaries to try war criminals under the Criminal Tribunal for the Former embraced by the Tribunal, while acquaint- same standards of fairness and impartiality Yugoslavia (ICTY), marks a turning point ing the countries with the Tribunal’s legal promoted by the ICTY. research tools. The ICTY has also hosted in the Tribunal’s mission. The Tribunal Benjamin Watson, a J.D. candidate at the local forums for judges to exchange exper- was established as an ad hoc judiciary, American University Washington College tise on legal challenges and procedural contingent upon the restoration of peace of Law, covers the Ad Hoc Tribunals for the tools. Finally, the WCJP is working with in the region in accordance with United Human Rights Brief. Nations (UN) Security Council Resolution the OSCE to develop country-specific cur- 803 (1993). Accordingly, in response to the ricula on international humanitarian law Published by Digital Commons @ American University Washington College38 of Law, 2011 3

84823_AU_HRB.indd 38 12/7/11 2:16 PM Human Rights Brief, Vol. 19, Iss. 1 [2011], Art. 7 JUDGMENT SUMMARIES: INTERNATIONAL lasting ten years and involving the creation the view that the Prosecution had made CRIMINAL TRIBUNAL FOR RWANDA of more than 125,000 transcript pages, a “serious omission” by failing to charge the production of approximately 13,000 her with both direct and superior respon- THE PROSECUTOR V. NYIRAMASUHUKO, pages of documents into evidence, and sibility for rape. By contrast, Ntahobali ET AL., TRIAL JUDGMENT, CASE NO. the testimony of 189 witnesses. Due to the was convicted of rape as a crime against ICTR-98-42-T lengthy nature of the trial, several of the humanity and as the war crime of outrages accused either filed separate motions with upon personal dignity not only as a supe- On June 24, 2011, Trial Chamber II the Chamber arguing that their rights to be rior, but also for his role as a principal of the International Criminal Tribunal for tried without undue delay had been vio- perpetrator of rapes against several women, Rwanda issued its approximately 1500 lated, or raised this claim in their closing and for ordering and aiding and abetting page judgment in the case commonly arguments to the Chamber. However, the the rape and gang rapes of Tutsi women. known as the “Butare Trial,” against six Chamber dismissed these claims, explain- The Chamber also repeatedly admonished Rwandans who held positions of authority ing that what constitutes “undue” delay is the Prosecution for its failure to ade- in the préfecture of Butare in Rwanda dur- determined on case-by-case basis by look- quately plead rape as genocide, noting ing the 1994 genocide. The six accused— ing at the length of delay, the complexity that while rape featured prominently in the Pauline Nyiramasuhuko, Arsène Shalom of proceedings, the conduct of parties, Prosecution’s Indictment, it was pled only Ntahobali, Sylvain Nsabimana, Alphonse the conduct of legal authorities, and any as a crime against humanity and the war Nteziryayo, Joseph Kanyabashi, and Elie prejudice which accrued to the accused crime of outrages upon personal dignity. Ndayambaje—was each convicted of geno- as a result. Referencing its decisions in Furthermore, the Chamber found that the cide based on his or her role in helping to Nahimana, et al. and Bagosara, et al., in Prosecution failed to cure the defective formulate and implement a government which the Chamber had found that deten- pleading through its Pre-Trial Brief and plan to massacre the Tutsis in Butare, tion of more than seven-and-a-half years Opening Statement. Thus, although the one of the most populated préfectures in and eleven years, respectively, were not Chamber found that the evidence estab- Rwanda, and the area with the highest “undue” because of the complexity of lished that the bodily and mental harm percentage of Tutsis. Among the other the cases, the Chamber reached a similar inflicted by the rapes perpetrated or sup- charges on which the accused were con- conclusion with respect to the Butare Trial, ported by the accused was “of such a seri- victed were conspiracy to commit genocide stressing not only the large number of wit- ous nature as to threaten the destruction in (Nyiramasuhuko), direct and public incite- nesses, but also the fact that six different whole or in part of the Tutsi ethnic group,” ment to commit genocide (Nteziryayo, defense teams had to cross-examine each it could not consider the acts of rape in sup- Kanyabashi, and Ndayambaje), exter- witness and present its own case. port of the charges of genocide. Notably, mination as a crime against humanity the Chamber did discuss the evidence (Nyiramasuhuko, Ntahobali, Kanyabashi, Another notable feature of the Butare presented at trial regarding acts of rape in and Ndayambaje), rape as a crime against Trial and judgment is that Pauline the course of its findings on genocide in humanity (Nyiramasuhuko and Ntahobali), Nyiramasuhuko, the former Minister of order to convey the entire set of facts in a persecution as a crime against humanity Family and Women’s Development in coherent fashion, but noted each time that (Nyiramasuhuko, Ntahobali, Nsabimana, Rwanda, was the first female accused to be the rapes were not taken into account when Kanyabashi, and Ndayambaje), vio- brought before any international criminal assessing genocide. lence to life, health, and the physical or tribunal, as well as the first woman to be mental well-being of persons as a war convicted of genocide and rape—both as Ye t another interesting facet of crime (Nyiramasuhuko, Nsabimana, a crime against humanity and as the war the Butare Trial judgment is the Trial Kanyabashi, and Ndayambaje), and out- crime of outrages upon personal dignity— Chamber’s finding that Nsabimana, who rages upon personal dignity as a war crime in any international criminal tribunal. In was préfet of Butare during the relevant (Nyiramasuhuko and Ntahobali). Each was regard to the charges of rape, the Trial events, aided and abetted crimes commit- acquitted of other inhumane acts as a Chamber convicted both Nyiramasuhuko ted at the Butare Préfecture Office through crime against humanity, either because the and her son, Ntahobali, who was a student his failure to fulfill his legal duty to pre- underlying acts forming the basis for the and part-time manager of Hotel Ihuliro vent the crimes. Specifically, the Chamber charge fell “squarely within other crimes during the 1994 genocide, of bearing supe- convicted Nsabimana of aiding and abet- against humanity” for which the accused rior responsibility for the rapes of a num- ting genocide, extermination and persecu- was convicted, or did not rise to the level ber of Tutsi refugees who had taken shelter tion as crimes against humanity, and the of crimes against humanity. The Chamber at the Butare Préfecture Office (BPO). war crime of violence to life, health, and sentenced Nyiramasuhuko, Ntahobali, Specifically, the Chamber found that the physical or mental well-being of per- and Ndayambaje to life imprisonment, Nyiramasuhuko brought Interhamwe sol- sons based on its finding that he had a legal Nsabimana to twenty-five years’ imprison- diers who were under her effective control duty to prevent the killing of Tutsis taking ment, Nteziryayo to thirty years’ imprison- to the BPO and, in many cases, ordered the refuge at the BPO. The Chamber began its ment, and Kanyabashi to thirty-five years’ soldiers to rape Tutsi women before load- analysis of Nsabimana’s liability by stat- imprisonment. ing them onto trucks and taking them to ing that an accused may be responsible for various places in Butare to be killed. Given aiding and abetting in two different ways: The Butare Trial and judgment are the fact that the Chamber found that the (i) by positive acts, including providing notable for a number of reasons. First, the evidence established Nyiramasuhuko had tacit approval and encouragement; or (ii) trial was particularly lengthy and complex, ordered the rapes, the Chamber expressed by omission, namely failing to discharge

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84823_AU_HRB.indd 39 12/7/11 2:16 PM Grandison et al.: Updates from the International and Internationalized Criminal Cou a legal duty to act. While the first form Anne Cleary, Assistant Director of the War accused...” The Chamber weighs these fac- of aiding and abetting liability seems to Crimes Research Office, edited this sum- tors on a case-by-case basis, and considers require the presence of the accused at or mary for the Human Rights Brief. the totality of circumstances surrounding near the scene of the crime, the Chamber the undue delay. Turning to the case before explained, the latter only requires that the it, the Chamber first recognized that the THE PROSECUTOR V. JEAN-BAPTISTE accused had the ability to fulfill his or her pre-trial delay of over seven years was sub- GATETE, TRIAL JUDGMENT, CASE NO. duty; that the failure of the accused to do so stantial. However, the Chamber balanced ICTR-2000-61-T assisted, encouraged, or lent moral support the length of the delay with the other fac- to the perpetration of a crime; and that the Trial Chamber III of the International tors mentioned above. Regarding the com- failure to act had a substantial impact on Criminal Tribunal for Rwanda issued plexity of the proceedings, the Chamber the realization of that crime. Thus, the fact its judgment in the case against Jean- considered multiple sub-factors including that Nsabimana was not present at the BPO Baptiste Gatete on March 31, 2011. Gatete, “the number of accused, the number of when the attacks that formed the basis for who was a prominent member of the witnesses, the quantity of the evidence, and the charges against him were committed Hutu-dominated National Revolutionary the complexity of the facts and of the law.” did not preclude the Chamber from find- Movement for Development of Rwanda While the case involved only one accused, ing him responsible as an aider and abettor. and served as the director of the Ministry the Chamber stressed that, together, the In terms of his legal obligation to prevent of Women and Family Affairs during the Prosecution and Defense called forty-nine the attacks at the BPO, the Chamber first country’s 1994 genocide, was found guilty witnesses before the Chamber and pre- explained that the Rwandan Penal Code of genocide and extermination as a crime sented 146 exhibits. There was also an evi- imposes a general obligation on every against humanity, resulting in a single sen- dentiary on-site visit to Rwanda. Moreover, citizen to provide assistance to persons in tence of life imprisonment. The Chamber the Chamber noted that the allegations of danger and provides that failure to do so is ruled that he was responsible for the genocide, complicity in genocide, con- a criminal offense. While recognizing that deaths of hundreds—if not thousands—of spiracy to commit genocide, and the crimes the Code also provides that a risk to oneself Rwanda’s Tutsis based on his role organiz- against humanity of extermination, murder, may serve as justification for a failure to ing and coordinating mass killings by dis- and rape involved complex issues of law act, the Chamber held that the danger to tributing weapons and ordering members and fact. Moreover, while the Chamber did any one person in a position of authority of the Interahamawe, a civilian militia, cite to “instances of delay on the part of the does not outweigh the violence suffered to carry out extensive assaults on Tutsis. Prosecution” for which the Chamber found by thousands of people that “affects… [h] Although the Prosecution also charged no justification, it also determined that the umanity as a whole.” The Chamber also Gatete with rape as a crime against human- accused suffered no prejudice as a result found that Rwandan domestic law required ity based on a number of alleged incidents of these delays. Indeed, in the opinion of Nsabimana, as préfet, to ensure the security in which the accused ordered members of the Chamber, the Defense’s failure to chal- of people within the Butare préfecture. the Interahamwe to rape Tutsis, the Trial lenge the length of proceedings until its Lastly, the Chamber noted that the laws Chamber determined with respect to each Closing Brief demonstrated that there was and customs of war imposed a legal duty of these incidents that the Prosecution had minimal—if any—prejudice as a conse- to protect civilians against acts or threats of failed to establish Gatete’s responsibility quence of the delay. Finally, the Chamber violence, citing in particular to provisions for the rapes beyond a reasonable doubt stressed that, once the trial commenced, it of Additional Protocol II to the Geneva and thus Gatete was acquitted of rape as a was conducted extremely expeditiously. In Conventions. With respect to Nsabimana’s crime against humanity. sum, the Chamber ruled that, after consid- assistance to, and substantial effect on, Along with challenging the Prosecution’s ering the above factors, Gatete’s right to the perpetration of crimes at the BPO, the evidence relating to the charges against trial without undue delay was not violated. Chamber noted that many people took him, Gatete’s Defense team raised a num- The Defense also argued that the dis- refuge at the BPO precisely because they ber of challenges relating to the fairness closure of the identities of a number of pro- believed that the préfet would help them, of proceedings. First, the Defense argued tected witnesses only thirty days prior to but in reality, Nsabimana not only failed to that Gatete’s right to trial without undue the start of trial adversely affected Gatete’s intervene, but directly declined requests for delay had been violated, given that he was ability to prepare his defence pursuant to assistance. The Chamber also stressed that, arrested on September 11, 2002 and over Article 20(4)(b) of the ICTR Statute. In when Nsabimana did eventually requisition seven years lapsed before his trial com- response, the Trial Chamber noted not only forces to stand guard at the BPO in early- menced on October 20, 2009. In address- that it had a statutory duty to “provide for to mid-June 1994, further attacks were ing this challenge, the Chamber noted that the protection of victims and witnesses,” prevented. Had he taken such action earlier the right to be tried without undue delay but also that the Pre-Trial Chamber had in time, the Chamber concluded, he could is established by Article 20 (4)(c) of the determined that the Prosecution had pre- have prevented, at least in part, crimes that statute of the ICTR and that a number of sented “persuasive evidence of the vola- the Chamber characterized as “among the factors are relevant in determining whether tile security situation in Rwanda and of worst” recounted before the ICTR. a delay was undue, including: “(a) the potential threats against Rwandans living Brynn Weinstein, a J.D. candidate at the length of the delay; (b) the complexity of in other countries, which could give rise American University Washington College the proceedings…; (c) the conduct of the to a justified and real fear that disclosure of Law, wrote this judgment summary parties; (d) the conduct of the authori- of their participation in the Tribunal’s pro- for the Human Rights Brief. Katherine ties involved; and (e) the prejudice to the ceedings would threaten their safety and

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84823_AU_HRB.indd 40 12/7/11 2:16 PM Human Rights Brief, Vol. 19, Iss. 1 [2011], Art. 7 security.” The Chamber also stressed that gating circumstances, and decided upon a Prosecution’s Pre-Trial Brief. In review- the Defense was not alleging that the deci- single sentence of thirty years. ing these claims, the Appeals Chamber sion to grant protective measures was an began by recalling that, because Renzaho Adam Dembling, a J.D. candidate at the abuse of the Pre-Trial Chamber’s discre- was charged as a superior under Article American University Washington College tion. Finally, the Chamber noted that the 6(3) of the Statute of the Tribunal, four of Law, wrote this judgment summary Defense had failed to demonstrate how the categories of the material facts must have for the Human Rights Brief. Katherine fact that the identities were not disclosed been pleaded in the Indictment: (i) facts Anne Cleary, Assistant Director of the War until thirty days before the start of trial establishing that Renzaho was the superior Crimes Research Office, edited this sum- harmed its preparation. As a result, the of sufficiently identified subordinates over mary for the Human Rights Brief. Chamber dismissed the claim. whom he had effective control and for whose acts he was alleged to be respon- Lastly, the Defense argued that Gatete’s THARCISSE RENZAHO V. THE sible; (ii) facts describing the criminal acts right to a fair trial was prejudiced by the PROSECUTOR, APPEALS JUDGMENT, committed by those for whom Renzaho fact that eight out of the thirty days of CASE NO. ICTR-97-31-A was alleged to be responsible; (iii) facts trial proceedings were conducted in the establishing that the accused knew or had absence of one of the three Trial Chamber On April 1, 2011, the Appeals Chamber reason to know of the criminal acts; and judges. While recognizing that Rule 15bis of the International Criminal Tribunal for (iv) facts establishing that Renzaho failed of the ICTR’s Rules of Procedure and Rwanda issued its judgment in the case to take necessary and reasonable measures Evidence permits the Trial Chamber to against Tharcisse Renzaho, préfect of to prevent the criminal acts or to punish the hold proceedings in the absence of a judge Kigali-Ville préfecture and a colonel in the persons who committed them. Ultimately, where the interests of justice require, the Rwandan army during the 1994 genocide. the Appeals Chamber determined that the Defense argued that Gatete suffered preju- The Trial Chamber had convicted Renzaho Indictment was defective because it failed dice because: (i) the testimony of twelve of genocide, murder and rape as crimes to plead the facts establishing that Renzaho witnesses had to be viewed by the absent against humanity, and murder and rape as knew or had reason to know of the rapes judge by way of video-recording, which serious violations of Article 3 common to forming the basis for the charges. It also does not allow for the same assessment of a the Geneva Conventions and of Additional found that the Prosecution’s Pre-Trial Brief witness’s credibility as live testimony; and Protocol II, sentencing him to life impris- failed to cure the defect because it did not (ii) the absence of one judge “has an impact onment. Although the Appeals Chamber clearly indicate that Renzaho’s encourage- on the level of questioning from the Bench granted two of Renzaho’s thirteen grounds ment of the rapes was the key fact that during trial.” The Trial Chamber rejected of appeal, it affirmed the Trial Chamber’s formed the basis for his criminal liability the claim of prejudice, however, noting that life sentence. as a superior. Finally, the Appeals Chamber the Defense had not demonstrated that the The first of Renzaho’s two success- concluded that the defective pleading remaining judges of the Chamber abused ful grounds of appeal related to the Trial constituted a prejudice against Renzaho their discretion under Rule 15bis in deter- Chamber’s decision to convict him of geno- because his ability to prepare his defense mining that the interests of justice required cide, crimes against humanity, and war was materially impaired. During the trial, a continuation of the trial. Furthermore, crimes on the basis of his superior respon- Renzaho’s defense did not understand that the Chamber noted that, while the prefer- sibility for repeated acts of rape commit- the encouragement of the rapes was a key ence is for each judge to hear live testi- ted against three women by Interahamwe, element to the Prosecution’s case and, thus, mony from witnesses, there is no absolute policemen, and soldiers in the Rugenge did not appropriately object to a witness’s requirement that testimony be presented sector of Kigali-Ville. Specifically, testimony stating that Renzaho encour- in such a manner, and in any event, a wit- Renzaho argued that the Trial Chamber aged the rapes. Therefore, the Appeals ness’s in-court demeanor is not the sole convicted him of on the basis of facts not Chamber held that the Trial Chamber erred factor relevant to determining credibility. properly pleaded in the Indictment, which, in convicting Renzaho and reversed his Finally, the Chamber highlighted the fact according to Renzaho, lacked detailed convictions for genocide, crimes against that the Defense had not raised objections information regarding the dates, locations, humanity, and war crimes to the extent the to the continuation of proceedings pursuant and names of the victims and perpetrators convictions were based on these rapes. to Rule 15bis at the time and that it did not underlying the Prosecution’s rape charges. move to recall any witnesses following the The Prosecution contended that although The Appeals Chamber, by majority, return of the absent judge. the Rugenge sector was not expressly men- also partially granted Renzaho’s fifth ground of appeal, which raised several Having dismissed the Defense’s claims tioned in the Indictment, the Indictment challenges to the Trial Chamber’s finding regarding Gatete’s fair trial rights, the alleged that between April and July 1994, that Renzaho was guilty of genocide based Chamber went on to evaluate the charges Renzaho’s subordinates raped Tutsi women on killings that occurred at roadblocks against Gatete and determined, as men- and girls throughout Kigali-Ville and set up throughout Kigali-Ville. In par- tioned above, that he bore responsibility for forced them to perform sexual acts in ticular, a majority of the Appeals Chamber the crimes of genocide and extermination exchange for their safety. Additionally, was persuaded by Renzaho’s challenge to as a crime against humanity. In sentenc- the Prosecution argued that Renzaho the Trial Chamber’s finding, by way of ing Gatete, the Chamber considered the received clear, consistent, and timely infor- inference, that he ordered the killing of gravity of the offenses with which he was mation detailing the factual basis of the Tutsis at roadblocks. The Trial Chamber convicted, as well as aggravating and miti- rape charges against him by way of the had reached this conclusion, despite the

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84823_AU_HRB.indd 41 12/7/11 2:16 PM Grandison et al.: Updates from the International and Internationalized Criminal Cou fact that there was no explicit evidence Trial Chamber’s conviction of Renzaho of the genocidal intent of the assailants at that Renzaho had ordered the killings, by of genocide based on aiding and abetting roadblocks, an intent Renzaho also shared, noting that the evidence established that the killings at the roadblocks, the majority and had not erred in its conviction of Renzaho had ordered the establishment of reversed the lower court’s conviction for Renzaho based on his role in ordering the the roadblocks, facilitated the acquisition genocide based on ordering these same killings of Tutsis at roadblocks. of weapons for distribution to the civilian killings. In terms of sentencing, the Appeals population, and sanctioned the killings at Judge Güney and Judge Pocar dis- Chamber noted that its reversals of the the roadblocks. Based on this evidence, sented on this point. Judge Güney stated Trial Chamber’s convictions for genocide, the Trial Chamber concluded that Renzaho that although he agreed that the conviction crimes against humanity, and war crimes “must have equally” ordered the killings was not secured for reasons put forth by based on acts of rape and for genocide at roadblocks. In reviewing this finding, the majority, he believed that other factual based on the ordering of killings of Tutsis the Appeals Chamber first recalled that, findings in the Trial Judgment supported at roadblocks “concern[ed] very seri- while ordering, as a mode of responsibil- the conviction of genocide for ordering the ous crimes” and that, in some cases, the ity, can be inferred from circumstantial killing at roadblocks. He argued that the Appeals Chamber has “considered rever- evidence, it must be the only reasonable Trial Chamber found “beyond reasonable sals as reason to review and reduce the inference available. Here, the majority held doubt” that Renzaho ordered the establish- sentence.” However, noting that it had that the Trial Chamber failed to explain ment of roadblocks during April 1994, was affirmed Renzaho’s convictions for geno- how the conclusion that Renzaho gave an aware of the likelihood that killings would cide, murder as a crime against humanity, order to kill Tutsis at roadblocks was the be committed there, and shared the “geno- and murder as a war crime based on other only reasonable inference to draw from cidal intent of the assailants at roadblocks.” acts, the Appeals Chamber concluded that the evidence. Furthermore, the majority For his part, Judge Pocar disagreed with its reversals did not impact the sentence noted, the conclusion that Renzaho gave both the reasoning and the conclusion imposed by the Trial Chamber. an order to kill at the roadblocks would of the majority opinion. He believed the be an insufficient basis on which to base Yaritza Ve l e z , a J.D. candidate at the majority ignored the fact that Renzaho a conviction for ordering, as the Trial American University Washington College ordered the establishment of roadblocks Chamber made no findings “concerning of Law, wrote this judgment summary and made other public statements knowing when or where Renzaho gave the order, to for the Human Rights Brief. Katherine that the continued killing of Tutsis was a whom or to what category of perpetrators Anne Cleary, Assistant Director of the War likely outcome. Based on these facts, Judge he gave the order, and whether Renzaho Crimes Research Office, edited this sum- Pocar stated that the Trial Chamber deter- was in a position of authority vis-à-vis mary for the Human Rights Brief. mined that Renzaho acted with knowledge the recipient.” Hence, while upholding the

INTERNATIONALIZED TRIBUNALS limited by Lebanese case law as it applies Convention, to which Lebanon is a State the Lebanese Criminal Code related to ter- Party, as well as customary international THE SPECIAL TRIBUNAL FOR LEBANON rorism. This is the first internationalized law. The Convention does not specify the DEFINES TERRORISM tribunal to try crimes of terrorism. Thus, means of a terrorist act, but does assert the decisions regarding what constitutes a that the act must be violent in nature. The On May 30, 2007, the United Nations, crime of terrorism could impact how other STL then turns to other international law by U.N. Security Council Resolution 1757, countries prosecute individuals accused of to articulate a customary definition of convened the Special Tribunal for Lebanon committing acts of terrorism. terrorism by looking to state practice and (STL) to prosecute individuals accused of international treaties. The STL states that, committing the attacks on February 14, Article 314 of the Lebanese Criminal through the lens of customary international 2005 that killed former Lebanese Prime Code defines terrorist acts as “acts intended law, an act is considered terrorism if, in Minister Rafiq Hariri and others. Article to cause a state of terror and committed by times of peace, the actor creates a public 2 of Resolution 1757 specified that the means liable to create a public danger danger with the intent to spread fear, and tribunal must apply the Lebanese Criminal such as explosive devices, inflammable the act has a transnational element or Code for crimes of terrorism. Although the materials, toxic or corrosive products and effect. By bringing the Lebanese and inter- STL is mandated to apply Lebanese law in infectious or microbial agents.” Thus, the national definitions of terrorism together, its proceedings, the Appeals Chamber of Lebanese code narrowly defines a terror- and by regarding the list of means enumer- the STL issued an interlocutory decision ist act as one requiring use of some means ated in the Lebanese Criminal Code as in which it held that the STL could apply likely to create a public danger. For exam- non-inclusive, the court broadly interprets international law related to the defini- ple, a murder committed with the inten- Lebanon’s means requirement. Lebanon’s tion of terrorism to which Lebanon is tion to terrorize the population may not requirement of a danger to the public is bound. The Appeals Chamber referenced meet the statute’s requirements if the court still part of the definition of a terrorist act the Arab Convention for the Suppression decides that the means used did not create that the STL will apply, but the danger cre- of Terrorism (Convention), articulated a a public danger. ated need not arise from the specific means customary international definition of ter- In articulating international definitions used to commit the terrorist act. Rather, the rorism, and explained how the STL is not of terrorism, the STL looks to the Arab danger can be the violence that the act has

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84823_AU_HRB.indd 42 12/7/11 2:16 PM Human Rights Brief, Vol. 19, Iss. 1 [2011], Art. 7 the potential to encourage and create. Thus, which requires in Article 14 that defendants she undergo further psychiatric testing to the STL will interpret an act of terrorism to be able to participate in their own trial. A determine if she is fit to stand trial. He require an intentional commission of an act defendant who is mentally or physically does not think she is currently fit to stand through any means likely to create a public incapable cannot stand trial. The ECCC trial, and he believes she is unlikely to danger, and the intent to create and cause a has ruled that a defendant may request improve. Once affirmed by the Supreme state of fear and terror. a health evaluation, as per Prosecutor v. Court Chamber, a decision that a defendant Strugar, a decision of the Trial Chamber of is unfit to stand trial is final and terminates While the STL has yet to hear a case, the International Criminal Tribunal for the proceedings against the defendant. Thus, its interlocutory decision defining terror- former Yugoslavia (ICTY). In Strugar, the there is a substantial likelihood that Ieng ism and subsequent cases applying this ICTY held that a certain level of mental Thirith’s trial will never progress past the definition could have a lasting impact cognizance is required for a defendant to pre-trial stage. both in Lebanon and the greater interna- “effectively exercise” his procedural rights. tional community. As this will be the first If Ieng Thirith is declared permanently Thus, the purpose of these fitness hearings instance in which an act of terrorism is unfit, the ECCC will face a unique deci- is to determine if a defendant can stand tried in an internationalized venue, the sion, with jurisprudential repercussions trial. If the court finds the defendant unfit, future opinions issued by the STL could not merely for the ECCC itself, but for the decisions of the ICTY can help guide become important persuasive authority for the entire international criminal justice the court in determining how to handle other Lebanese courts, and for other inter- landscape. Unlike in Strugar, where the permanently unfit defendants. national and domestic courts, prosecuting defendant declared unfit died three months acts of terrorism. The international com- Concerns regarding the defendants’ later from terminal cancer, Ieng Thirith’s munity has struggled to clearly define health were first raised in March 2008 Alzheimer’s is permanent, but not ter- terrorism, and has instead relied on various when Noun Chea requested the appoint- minal; she could survive for years rather anti-terrorism conventions. The definition ment of an expert to gauge his fitness to than months. If unfit, the court is likely of terrorism articulated by the STL could stand trial. The court denied this motion on to release her to a health facility or to her serve as a “gap filler” for other interna- the grounds that the defense did not present family, with restrictions placed on her tional bodies as they also wrestle with the enough evidence to warrant the appoint- movement. However, it is possible she will challenge of defining terrorism and the ment of an expert. Internal Rule 32 of the outlive the mandate of the ECCC, in which legal consequences of such a definition. ECCC states that the court may appoint case it is unclear if any potential restric- As trials commence, the application of an expert to determine if a defendant is tions placed on her would continue to have the STL’s definition will further clarify the “physically and mentally fit to stand trial” a legal effect. legal requirements of terrorism, and the because the defendant has a procedural The trial against all four defendants ramifications for both the prosecution and right to be capable of understanding and will start in late November. However, if defense. present for the litigation. proceedings against Ieng Thirith are halted, In 2011, Noun Chea, joined with Ieng there may be no redress for the victims PROCEEDINGS IN THE ECCC: FITNESS Thirith and Ieng Sary, again requested the of Khmer Rouge’s brutal regime, many TO STAND TRIAL DELAYS CASE 002 appointment of an expert to evaluate their of whom continue to suffer from health The Extraordinary Chambers in the fitness to stand trial. The order was granted issues. Many victims of the Khmer Rouge Courts of Cambodia (ECCC) is currently and Dr. John Campbell, a geriatrician from are in a similar physical and mental condi- conducting a series of hearings regarding New Zealand, evaluated the health and fit- tion as Ieng Thirith but do not have access the fitness to stand trial of some of the ness of both Ieng Thirith and Noun Chea, to the same standard of health care. While defendants in Case 002. Case 002 involves while Ieng Sary was denied an evaluation. it is important to balance the rights of the four leaders from the Khmer Rouge regime Dr. John Campbell examined Noun Chea defendant, it is important not to lose sight of 1975 to 1979, Noun Chea, Ieng Sary, and Ieng Thirith and appeared before the of the fact that these defendants allegedly Khieu Samphan, and Ieng Thirith. They court from August 29 – August 31, 2011 led a brutal, genocidal regime whose vic- have been indicted on multiple charges, to answer questions. While the court has tims are still suffering ill consequences. including crimes against humanity and yet to make a final decision on both defen- While the ECCC strives to respect the genocide. The court’s review of Noun dants, Dr. Campbell’s findings will likely rights of the defendants, justice for the Chea, Ieng Sary, and Ieng Thirith’s fitness weigh heavily in the decision because of victims should not be forgotten. the ECCC’s inability to conduct its own to stand trial has significantly delayed the Michelle Flash, a J.D. candidate at the thorough health assessment with a full start of the trial. While a defendant has a American University Washington College understanding of the medical issues. right to be able to competently participate of Law, covers the Internationalized in his or her trial, the inability to try viola- Dr. Campbell’s report found Noun Chea Tribunals for the Human Rights Brief. tors of human rights due to health concerns fit to stand trial. However, it is likely that may undermine victims’ access to justice. the defense will continue to raise health Rule 81 of the ECCC states that the concerns regarding his mental and physi- defendant has a right to be present at his cal ability. Dr. Campbell’s report on Ieng or her trial. Furthermore, the Cambodian Thirith states that she is likely suffer- Constitution embraces the UN International ing from Alzheimer’s disease and short- Covenant on Civil and Political Rights, term memory loss, and recommends that

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