Promoting Accountability Under International Law for Gross Human Rights Violations in Africa

Promoting Accountability under International Law for Gross Human Rights Violations in Africa

Essays in Honour of Prosecutor Hassan Bubacar Jallow

Edited by

Charles Chernor Jalloh Alhagi B. M. Marong

LEIDEN | BOSTON Library of Congress Cataloging-in-Publication Data

Promoting accountability under international law for gross human rights violations in Africa : essays in honour of prosecutor Hassan Bubacar Jallow / edited by Charles Chernor Jalloh, Alhagi B. M. Marong. pages cm Includes bibliographical references and index. ISBN 978-90-04-27174-6 (hardback : alk. paper) — ISBN 978-90-04-27175-3 (e-book) 1. International crimes—Africa, Sub-Saharan 2. International criminal courts—Africa, Sub-Saharan 3. Prosecution (International law)—Africa, Sub-Saharan 4. Jallow, Hassan B. 5. Judges—Africa, Sub-Saharan—Biography. I. Jalloh, Charles, editor. II. Marong, Alhagi B. M., editor. III. Jallow, Hassan B., honouree.

KQC982.I57.P755 2015 341.4’80967—dc23 2015020181

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This book is printed on acid-free paper. Contents

Foreword by Sir Dawda Kairaba Jawara ix Foreword by Judge Navi Pillay xii Preface and Acknowledgments xix Hassan Bubacar Jallow: A Biographical Summary xxvIi Abbreviations xxviIi Notes on Contributors xxxI

part 1 Hassan Bubacar Jallow – The Man

1 Hassan Bubacar Jallow: The Man on a Journey for Justice 3 Cherno S. Jallow, QC

2 Hassan Bubacar Jallow: The Man behind the Action 7 Murtaza Jaffer

3 Justice Hassan Bubacar Jallow’s Contribution to the Development of Law in The Gambia: The Supreme Court Years 14 Ousman A. S. Jammeh

4 Towards Reviving Legal Professionalism and the Need for Ethical Leadership 35 Aboubacar Abdullah Senghore

Part 2 The Role of the International Prosecutor

5 The Role of the International Prosecutor as a Custodian of Global Morality 47 Bankole Thompson

6 Selecting Cases at the International Criminal Tribunal for Rwanda 58 William A. Schabas vi contents

7 The Experience of the Office of the Prosecutor of the International Criminal Tribunal for Rwanda Concerning Arrest Strategies and Lessons Learnt for the Office of the Prosecutor of the International Criminal Court 71 Phakiso Mochochoko

Part 3 Institutional Dimensions of International Criminal Justice

8 The ICC’s Twelfth Anniversary Crisis: Growing Pains or Institutional Deficiency? 93 M. Cherif Bassiouni

9 Protection of Populations against Atrocity Crimes: The Role of Regional Organizations 103 Adama Dieng

10 The Contribution of the ICTR to the Rule of Law 118 Leila Nadya Sadat

11 The Legacy of International and Hybrid Courts – Are Human Rights More Respected? A Tribute to Justice Hassan B. Jallow 130 David Tolbert and Laura A. Smith

Part 4 Substance and Process in International Criminal Justice

12 An Unbreakable Thread? The Presumption of Innocence in International Law 157 Karim A. A. Khan QC and Dato’ Shyamala Alagendra

13 Cumulative Charges under International Criminal Law Issues and Perspectives 201 Bongani C. Majola contents vii

14 Permissibility of Convictions for Genocide and Conspiracy to Commit Genocide in Respect of the Same Events 222 Roman Boed

15 The Taylor Case Aiding and Abetting, “Specific Direction” and the Possibility of Negligence Liability for Remote Offenders 237 Frédéric Mégret and Siena Anstis

16 The Law and Politics of the Charles Taylor Case 270 Charles Chernor Jalloh

Part 5 Gender-Based Crimes under International Criminal Law

17 The Sexual and Gender-Based Crimes Policy Paper of the Office of the Prosecutor of the International Criminal Court 327 Fatou Bensouda

18 Challenging Impunity for Crimes of Sexual Violence The Efforts of Prosecutor Jallow to Set the Record Straight 355 Linda Bianchi

19 Justice Hassan Bubacar Jallow and Gender Justice in International Criminal Prosecutions 375 George William Mugwanya

Part 6 Concurrent Jurisdiction between National and International Courts

20 Transfer of Cases under the Jurisprudence of the ICTR and Lessons Learnt for the ICC 409 Alhagi B. M. Marong and Charles Chernor Jalloh viii contents

21 Justice Hassan Bubacar Jallow’s Contribution to International Criminal Justice An OTP Perspective 440 Alex Obote-Odora

22 Monitoring and the Referral of Criminal Cases between Jurisdictions An ICTR Contribution to Best Practice 478 Joanna Harrington

Part 7 International Law, Human Rights and Governance

23 Justice for the United Nations: A Quiet Revolution? 501 Geoffrey Robertson

24 Borrowing International Human Rights Law Some Examples from the Doctrine of the Margin of Appreciation in the African Charter on Human and Peoples’ Rights 517 Rachel Murray

25 From Coup Reaction to Coup Prevention 533 Christopher Waters

26 International Criminal Law and Refugee Law: Lessons Learned 548 Joseph Rikhof

27 African Languages in International Criminal Justice The International Criminal Tribunal for Rwanda and Beyond 578 Leigh Swigart

Index 613 Foreword Alhaji Sir Dawda Kairaba Jawara Former President of the Republic of The Gambia

I am greatly honoured to write this Foreword to the Collection of Essays dedicated to Justice Alhaji Hassan Bubacar Jallow, currently Chief Prosecutor of the United Nations International Criminal Tribunal for Rwanda and the Mechanism for the International Criminal Tribunals. I take this opportunity to congratu- late the editors of the volume for their initiative. Hassan’s long-standing dedication to domestic and international public service deserves nothing less. I have known Hassan for many years. In 1983, in my capacity as President of the Republic of The Gambia, I had the honour of appointing him as Acting Solicitor-General and Legal Secretary of The Gambia, a position in which he was substantively confirmed the following year. It was the first in many important appointments to follow over the next ten years, both in the Government of the Republic of The Gambia and the ruling People’s Progressive Party (PPP). On Monday 9th July 1984 I again had the honour to invite Hassan to assume the post of Attorney-General and Minister of Justice for The Gambia. At barely 33 years old, I knew he was young compared to the rest of his cabinet colleagues. However, I also knew he was eminently qualified and ready to assume that function, having distinguished himself over the seven-year period for which he had served at the Ministry of Justice in the capacities of State Counsel, Senior State Counsel, Principal State Counsel, Registrar General and Solicitor-General & Legal Secretary. I was certain that the Government needed an infusion of both young talent and fresh ideas to manage our program of economic recovery and societal progress under a private-sector led model of economic governance. The government also needed a firm and steady hand at Justice to continue to guarantee fairness and accountability in dealing with the aftermath of the tragic events of July 1981. Over the next ten years, ending in 1994 – for I had the privilege of renewing Hassan’s appointment as Attorney General and Minister of Justice in 1987 and again in 1992 – Hassan served his country and indeed the African continent and the international community with great distinction. On several occasions during this period, I also had the privilege to designate him to oversee the government whilst I was out of the country. That was an indication of my confidence in his ability and commitment. The majority of the chapters in this volume reflect on his contributions at the international level. Let me, however, also dwell on the many important legal and institutional reforms that he spearheaded in his native country, x foreword

The Gambia. These strengthened our credentials as a Government which operated on the basis of respect for the rule of law, human rights and good governance. Hassan’s work, in line with the policies of my government on the drafting of the African Charter on Human and Peoples’ Rights, the establishment of the African Centre for Democracy and Human Rights studies in Banjul as well as other initiatives within the Commonwealth, contributed immensely to making The Gambia the hub for human rights advocacy, research and policy development in Africa. His support for my initiative to abolish the death penalty in The Gambia was immensely valuable in seeing its abolition in 1993. I now look back over the ten-year period from 1984 to 1994 as perhaps the period during which The Gambia took some of its most important steps towards solidifying the legal foundations for sound macro-economic development anchored upon the rule of law and good governance. Under my leadership and with the steadfast support of an able Attorney-General and with the close collaboration of our development partners and friends in the region, some remarkable achievements were registered in improving the machinery of justice. Amongst them, the construction of an ultra-modern court complex in the capital Banjul, the decentralisation of the judiciary with the commencement of construction of provincial courts, expediting litigation through the establishment of a permanent full time rather than sessional Court of Appeal, the creation of the Office of Ombudsman to curb maladministration, enactment of a Legal Practitioners Act to provide a framework for the regulation of the legal profession, reform and improvement of the district tribunal system for the administration of customary laws, reforms of law and practice to reduce avoidable delays in the legal system. In 1984, my Government launched the Economic Recovery Programme (ERP) which was followed by the Programme for Sustained Development (PSD). For these programmes to succeed, it was important to create a strong regulatory environment. The Attorney-General’s Chambers, under Hassan’s leadership, initiated a successful programme of law revision and codification which led to the publication of the revised edition of the Laws of The Gambia in 1991. In 1993, with a view to establishing a registry of Offshore Companies in The Gambia, and driven by the Government’s desire to spur economic growth and create jobs, Parliament passed the Offshore Banking Act, the Trustee Companies Act, the Registration of Shipping (Amendment) Act, the Offshore Trusts Act and the Offshore Companies Act. Earlier, in 1990, the legal framework for public enterprises was revised, with a view to its harmonisation and to make such enterprises more efficient and accountable. foreword xi

Significant law reform was also undertaken by government during this period spearheaded by the Ministry of Justice under Hassan’s tenure. As a result, major legislation was adopted in relation to the environment, the pro- fessions, the public service, land administration, commercial law, business enterprises, personal and social welfare law including a Wills Act, an Adoption Act, and Maintenance of Children Act. Above all, Hassan, as First Law officer, made a very valuable contribution to ensuring that my government’s commitment to make The Gambia a society based on justice, respect for the rule of law and human rights, was given reality in these and other concrete measures. Due to these regulatory and institutional reforms and other policy measures, The Gambia had by 1994 acquired the endorsement of its major development partners and the wider international community. The country was viewed as a model of sustained democratic governance based on the rule of law, respect for human rights and independence of the judiciary. The World Bank and the African Development Bank had respectively named The Gambia as a “model” or “particularly good performer” in economic terms. The slogan by which the country was referred to as the potential “Singapore of West Africa” was neither mere political sloganeering nor a pipe dream – it was borne out of a deep conviction and determination to stay on the course of sustained macro-economic development led by the private sector, anchored upon a democratic system of governance, adherence to the rule of law and respect for fundamental human rights. We dared to dream that The Gambia could become the Singapore of West Africa because I had people such as Hassan and others on my team. In the intervening two decades since he left office in The Gambia, Hassan has gone on to contribute immensely to promoting international accountability for serious violations of human rights and humanitarian law. That much is evident from reviewing the excellent chapters from the highly distinguished contributors to this volume. Hassan’s work is a journey for justice that had commenced from his very early days in The Gambia. I am pleased that his contributions have been documented for posterity in the chapters of this important book. Foreword Judge Navi Pillay former United Nations High Commissioner for Human Rights

The subject of accountability for serious violations of international law, including genocide, war crimes and crimes against humanity, continues to challenge contemporary international society. At the end of the Second World War, the victorious powers made a solemn promise that the systematic and gross violations of individual human rights that were perpetrated by Nazi Germany would not be allowed to repeat themselves in the post-war global order. This sentiment was initially expressed in the collective security architecture set out in the Charter of the United Nations, subsequently elaborated in the Universal Declaration of Human Rights, and given concrete expression in several international instruments such as the Convention on the Prevention and Punishment of the Crime of Genocide and the International Bill of Rights. Preservation of the right to life, and protections against systematic and gross violations of human rights and human dignity were henceforth to remain cor- nerstones of the international normative system built after the defeat of Nazi ideology and fascism. More significantly, all States were expected to integrate these norms into their domestic legal frameworks, and take measures to hold accountable those individuals found to have been in violation. Following a half century hiatus after the Nuremberg war crimes trials and the International Military Tribunal for the Far East, the issue of individual accountability for gross violations of human rights and humanitarian law resurfaced on the international agenda in the 1990s when the UN Security Council established the ad-hoc international criminal tribunals for the former Yugoslavia and Rwanda to prosecute persons for serious international crimes committed in the course of the 1990s Balkan war and in Rwanda in 1994. The accountability train continued with the establishment of the Special Court for Sierra Leone, as well as the Special Chambers in the Courts of Bosnia-Herzegovina and Cambodia. Although each of these courts/tribunals had limited temporal and geographic jurisdiction, the principles, practice and jurisprudence that emerged from their work served as building blocks for the establishment of a permanent International Criminal Court at The Hague. In addition to the emergence of these courts and tribunals, the 1990s also marked an important era in the development of a robust international institution for the promotion and protection of human rights, and for monitoring and reporting violations by States. In 1993, the Vienna Declaration established the Office of the High Commissioner for Human Rights as an institutional mechanism for human rights promotion and protection, and the monitoring of foreword xiii human rights violations. The Universal Periodic Review has since then served as a means of assessing States’ compliance with their human rights treaty obligations. Similarly, the Human Rights Council has appointed 52 independent experts who make recommendations to the Council on ways to improve human rights across the world. As I have stated elsewhere, it is clear that the fundamentals for protecting and promoting human rights are largely in place; these include a strong and growing body of international human rights law and standards, as well as institutions to interpret the laws, monitor compliance and apply them to new and emerging human rights issues. However, over half a century since protection of individual human rights and prohibitions against mass atrocity crimes acquired the status of binding international norms, some of which are jus cogens in nature, the world continues to witness horrendous human suffering and systematic violence. Indeed, even as I sit down to write this foreword, news came through that the Pakistani Taliban had slaughtered more than 140 innocent students in a school in Peshawar, Pakistan on 16 December 2014. On the same day, 15 school girls were killed when the bus they were travelling in, was hit by a car bomb in the Yemeni province of Al Bayda. A day earlier, an apparently deranged ideologue held up hostages in a café in central Sydney, Australia for 16 hours, leading to the loss of two innocent lives; and on 11 December 2014, a suicide bomber attacked a school in the Afghan capital, Kabul, leading to the loss of several innocent lives. I have not even mentioned the abduction of over 200 school girls by Boko Haram in northern Nigeria in April 2014, and only as misguided extremists would, the reign of terror that they continue to unleash on communities in various parts of Africa’s most populous country. Nothing can justify such attacks on ordinary civilians going about their normal lives; it is much worse when such senseless violence is directed at innocent children. Of all the human rights issues that I had to deal with over the past forty years, nothing bothers me more than the killing and/or maiming of young innocent children in war. As UNICEF recently pointed out, each child killed in these types of incidents is a future destroyed forever. Unfortunately, more than any other region, Africa continues to bear the brunt of violent conflict with dire consequences for its citizens. Ongoing conflicts in the Central African Republic, Democratic Republic of Congo, Mali, Nigeria, the Darfur region of Sudan and South Sudan are stark reminders of the continent’s precarious human rights record. A record that is characterized by gross human rights violations, untold suffering of women and children, and loss of lives. Sadly, it is as if we have not learnt from the lessons of Rwanda twenty years ago. In 1998, while serving as a Judge of the United Nations International Criminal Tribunal for Rwanda, my colleagues and I rendered judgment in the case of The Prosecutor v. Jean Paul Akayesu. In addition to its historical significance as xiv foreword the first-ever genocide conviction following a full trial, the Akayesu Judgment held that sexual violence in war could qualify as an act of genocide where it is perpetrated with the intent to destroy particular ethnic groups in whole or in part. In that case, the Tribunal received evidence of widespread sexual violence directed at Tutsi women, as part of the wider pattern of genocidal attacks targeted at members of the Tutsi ethnic group. Sexual violence was used as an instrument of war aimed at the systematic destruction of members of the Tutsi community in Rwanda. A few years later, the Special Court for Sierra Leone was called upon to pronounce itself on alleged crimes of systematic sexual violence directed against abducted women and girls during the internal armed conflict in that country from 1996–1999. The Appeals Chamber determined that the abduction and sexual enslavement of these women, constituted the crime against humanity of “forced marriage.” More recently, the same court upheld the conviction of Charles Taylor, former President of Liberia, for planning and aiding and abetting the commission of crimes against humanity in neighboring Sierra Leone. This constituted an historic conviction, the first of a former African Head of State for serious international crimes committed while in office. Similar progress has been made at the International Criminal Court (ICC) which entered its first conviction against the Congolese warlord, Thomas Lubanga Dyilo, for the crime of forcible recruitment and use of child soldiers in 2012 – a decision upheld by my former colleagues in the ICC Appeals Chamber in December 2014. The ongoing trials of the former Ivorian President Laurent Gbagbo and the serving Deputy President of Kenya, William Ruto, at the ICC, show the potential reach of international criminal justice. Hopefully these trials send out a clear message that those who commit such crimes would be held accountable, irrespective of their political power or official position. While the jurisprudence of these Courts and Tribunals show that significant advances have been made in promoting accountability for serious violations of international law, there is no doubt that the fight against impunity in Africa still has some way to go. Indeed almost a decade after the UN-ICTR convicted media practitioners in Rwanda of direct and public incitement to commit genocide through the use of radio broadcasts and newspaper publications, in the so-called Media Case involving the vitriolic hate speech spewed by Radio Télévision Libre des Mille Collines and in the Kangura newspaper, it is disheartening to note that instruments of mass communication including radio, were allegedly used to incite inter-ethnic violence during the post-election crisis in Kenya in 2007– 2008, and more recently, in South Sudan. Similarly, the use of sexual violence as an instrument of war against women and girls continues in several conflict foreword xv situations including Nigeria, Darfur, South Sudan, and the Democratic Republic of Congo. It should be apparent that while international accountability processes have immensely contributed to challenging impunity for serious violations of international law, and engendered increased global awareness of such crimes, such mechanisms cannot operate in a vacuum. Nor are they sufficient, by themselves, to stop the cycle of violations. The biggest stumbling block has been the lack of political will on the part of governments. It is for this reason, among others, that I have recently called for more proactive measures on the part of states and the international community for early warning, preventive diplomacy and conflict prevention, in addition to measures to deal with the consequences of conflict. As I have often emphasized, peace, development and security cannot be addressed in isolation of human rights. They are inter- twined and must be treated as such. The United Nations Charter, Chapter VI, contains several conflict-prevention tools which, unfortunately, have not been utilized to their full effect. Negotiation, enquiry, mediation, conciliation, good offices of the Secretary-General and of regional organizations, can and should all be given fresh impetus as conflict prevention tools at the earliest signs of tension before conflict breaks out. However, where internal political tensions, ethnic strife or competition over natural resources actually lead to conflict, as they often do, the international community must be prepared to protect the most vulnerable members of society – civilians, especially women, children and the elderly. In this regard, it is heartening to observe the recent actions of the United Nations Mission in South Sudan which opened its doors in December 2013 to provide refuge to tens of thousands of civilians fleeing violence between the Government and opposition forces. In April 2014 while serving as High Commissioner for Human Rights, I visited South Sudan and reminded the leaders of both warring parties of their obligation to respect human rights and humanitarian law, and to protect civilians. I warned that the international community would not hesitate to hold accountable those who violate human rights or commit crimes against their own people. The African Union has since established, for the first time in its history, a commission of inquiry in the early stages of an active conflict even as it seeks to help resolve peacefully the problems of South Sudan. It is hoped that the outcome of that process, even before the publication of its key findings, will help chart a way forward for the benefit of South Sudan’s belea- guered population. Accountability for the perpetration of crimes against civilians must be part of its recommendations as that is the only way, in the long term, by which stability can be restored. xvi foreword

I have also recently called for a broader conception of national interest to guide the work of the Security Council, given its Charter mandate as the guardian of international peace and security. Preventing human rights violations is not only a moral obligation, it is in the collective interest of nation-states and people everywhere. During my tenure as High Commissioner for Human Rights, I have often lamented the failure of certain states to place the collective interest above short-term geopolitical considerations and narrow definitions of national interest leading to persistent failures to take action in situations where, for example, action was necessary to ensure accountability for gross violations of international law. This was recently exemplified by the Security Council’s failure to refer the situation in Syria to the ICC; and the consistent exercise of the veto power to block action over the Israeli-Palestine conflict, especially over alleged war crimes committed during the war in Gaza. In this regard, I am pleased to observe the Secretary-General’s recent initiative, “Rights Up Front”, which aims to integrate and place human rights protection at the heart of UN strategies and operational activities of the Secretariat, Agencies, Funds and Programs. Considering that human rights violations are often early warning signals for mass atrocity crimes, the initiative seeks, inter alia, to provide UN Member States with information regarding peoples at risk of, or subject to serious violations of human rights and humanitarian law, and developing a common UN system for information management on such serious violations. Equally important and complementary to the “Rights Up Front” Initiative is the Security Council’s adoption of Resolution 2171 on 21 August 2014 relating to conflict prevention. The resolution stresses the primary responsibility of states for prevention of conflict, and notes that United Nations action in this regard, should complement the efforts of national governments. It further recognizes that some of the measures for pacific settlement of disputes under Chapter VI of the UN Charter have not been fully utilized and calls for greater and more effective use of conflict prevention mechanisms including mediation, negotiation, resort to regional arrangements, and use of the Secretary-General’s good offices. Finally, the resolution recognizes that women and civil society groups, including informal community leaders, can play a positive role in preventing conflict by exerting influence over the parties to armed conflict, and through information exchange and analyses on the prevention of armed conflict. The work of the international tribunals such as the ICTR and its sister courts as well as the permanent ICC is important and needs our collective support now and well into the future. However, it is also true that individual accountability mechanisms must operate alongside other measures in order to be most effective. States and the international community must not lose foreword xvii sight of their responsibility to prevent conflict, and to protect civilians where conflict actually breaks out. The fight against impunity must not be limited to the courts and tribunals; it can and should commence much earlier by engaging inter alia, in early warning, preventive diplomacy, and the use of good offices. The neglect of human rights leads to conflict and destabilization, and for that reason, States and the UN should devote more financial and human resources to them instead of waiting for conflict to break out and then deploy- ing peacekeepers. I am pleased to offer the foreword to this impressive tome. Most of the essays in this work, by some of the leading scholars and practitioners of international criminal law, address individual accountability for serious violations of international law. It is particularly appropriate that, given Hassan Bubacar Jallow’s unstinting performance as the chief prosecutor of the UN-ICTR, many of the papers focus on the jurisprudence and impact of the Rwanda Tribunal. Of course, the Secretary-General had appointed him to that position in September 2003. He proved to be an excellent choice, bringing to the position his extensive legal and judicial experience from the national and international levels. He deployed that expertise, which included his service as an Attorney- General of The Gambia and his 1998 independent judicial evaluation of both the ICTY and the ICTR at the request of the UN, to the benefit of his office. He became Prosecutor at a critical juncture for the ICTR, which was weath- ering criticisms from various quarters. He quickly adopted a new prosecution strategy both to carry out his investigations and prosecutorial mandates in a more efficient manner, including shifting from large multi-accused trials with numerous counts in the indictments to single accused cases that were more streamlined. He took seriously his mandate to also be the voice of victims of heinous acts of sexual violence, especially the women. He also sought, and succeeded, in improving cooperation with the government and people of Rwanda as well as with the other states that have been strong supporters of the Tribunal from the continent of Africa and around the world. Against many odds, including lack of resources and limited staff and the completion strategy imposed by the Security Council, Justice Jallow brought the prosecutorial work of ICTR to a successful conclusion. It is an expression of confidence in his important achievements and contributions to the fight against impunity that the Secretary-General appointed him in March 2012 as first prosecutor of the Mechanism for the International Criminal Tribunals. The editors of this volume, both of whom also served the ICTR working as legal officers in its chambers, have done a marvelous job assembling such an eminent group of academics, jurists, practitioners and researchers to write the various chapters that follow in honour of Justice Jallow. Quite a few are xviii foreword renowned scholars in the field of international criminal law and international human rights law, or both. Others come to the issues from the tried and tested background of practitioners who have had many years of experience working on the frontline of the fight for justice in respect of atrocity crimes and their roles as attorneys in several international courts and tribunals. The rigorous analysis and expertise that is shown in chapter after chapter of the book, speaks to its promise as a major contribution to the field of international criminal law and justice for many years to come. There cannot be a better testament to Justice Jallow’s decades of hard work and commitment to the cause of human rights and international justice.

Navi Pillay Durban, South Africa, December 2014 Preface and Acknowledgments

The idea to dedicate a collection of essays in honour of Justice Hassan Bubacar Jallow, chief prosecutor of the United Nations International Criminal Tribunal for Rwanda (UN-ICTR), was first mooted in April 2012 at the International Conference Assessing the Legacy and Contributions of the Special Court for Sierra Leone that was held at the University of Pittsburgh School of Law, Pennsylvania, USA. As editors, and leaving aside for a moment our friendship over the years, we were motivated by our collective respect for and admiration of Justice Jallow’s stellar contribution to the cause of human rights, humanitarian law, and challenging impunity for serious violations of international law, especially in Africa. Having previously worked in the UN-ICTR, we had witnessed first-hand his exceptional legal abilities, leadership style, and management qualities. We also knew him by reputation, which of course, precedes him. Everyone we interacted with, including members of his staff many of whom were close friends and associates, had common appreciation for his accomplishments. He was not just a great lawyer, but also one who led by example. He was often described as humble and unassuming, a breath of fresh air in a world of outsized egos and a continent reputed, perhaps unfairly, for leaders with a “big man” complex. We believed then, and still do now, that a combination of knowledge and understanding of the law and its application to the socio-political context that emerged from the 1994 Rwandan genocide – as well as his temperament and long view – is what enabled Justice Jallow to lead the UN-ICTR Prosecutor’s office to attain the objectives of the Completion Strategy. Now that the Tribunal has effectively met most of the milestones required by that draw down document, to the extent that it and the sister tribunal for the former Yugoslavia (the UN-ICTY) are being transitioned into the Mechanism for the International Criminal Tribunals (MICT) for which Justice Jallow has been appointed as first chief prosecutor, it is an opportune time to reflect on his significant role and important contributions and, by extension, the work and achievements of the UN-ICTR. As you would see, a good number of the essays in this volume are written by people who have had direct experience working at the Tribunal as Prosecutors or Legal Officers, as well as academics and practitioners with recognized expertise in international criminal and human rights law and/or the work of the Tribunal. However, this volume is much more than a reflection on the work of the UN-ICTR. Rather, our intention, broadly speaking, is to highlight the challenge Africa continues to face, half a century after Nuremberg and two decades xx preface and acknowledgments following Rwanda, in promoting accountability for serious violations of human rights and international humanitarian law committed on the continent. While the events of April 1994 in Rwanda probably marked the very epitome of human suffering given the chilling efficacy and brutality with which close to an estimated one million ethnic Tutsis and moderate Hutus were killed in the space of one hundred days, Africa has unfortunately witnessed many other internal conflicts since then. At a macro level, these conflicts have had devastating consequences for civilian populations and stunted prospects for socio-economic development. They have resulted in the killing or maiming of hundreds of thousands of innocent civilians, including unarmed women and children, as well as the internal and external displacement of many millions. A number of reasons can be advanced for the proliferation of conflicts on the continent, including poor leadership, weak institutional governance, ethnic competition and rivalry, economic marginalization, and competition over natural resources. Conflicts in the Democratic Republic of Congo (which in one sense remains an offshoot of the Rwandan conflict), Sierra Leone, the Ivory Coast, the Darfur region of Sudan, Central African Republic, Mali, Uganda and the new nation-state of South Sudan, among others, can all be explained on the basis of one or more of these factors. An increasing number of perpetrators of serious international crimes committed in Africa have been brought to justice (as evidenced in the trials at the UN-ICTR and the Special Court for Sierra Leone), or are being prosecuted or pursued by the ICC. The recent arrest of Dominic Ongwen, a top commander of the Ugandan rebel group, the Lord’s Resistance Army, shows the promise of international criminal justice and the work of the ICC. Indeed Ongwen’s surrender to the Hague-based court was effected despite Uganda’s domestication of the Rome Statute of the ICC, and its establishment of a Special Division of the High Court to prosecute serious international crimes. Another positive development was the January 2015 demobilization of approximately three thousand child soldiers aged between 11 and 17 years, by a South Sudanese rebel group. Despite these advances, which ought not to be overlooked nor replaced with cynicism, there remain ongoing serious concerns about continuing internal armed conflicts involving non-state armed groups in many other parts of the continent. New methods of low intensity warfare, sometimes driven by extremist ideologies, seem to have taken hold. In Nigeria, to take but one example from Africa’s most populous country and regional super power, Boko Haram continues to wreak havoc on innocent civilians in the north eastern part of the country, including what appears to be a new strategy of abducting young women and boys and using them as suicide bombers and child soldiers. It is unclear whether the response of the central authorities in Abuja to date is adequate or effective. Similarly the Al-Shabab Islamist group, while based in preface and acknowledgments xxi

Somalia, continues to launch deadly cross-border attacks into Kenya, including the 2013 assault on the Westgate mall in Nairobi, as well as the atrocious dawn raid on Garissa University College in April 2015, which led to the death of approximately 150 students. These and other examples show that while the continent has taken many important steps towards promoting accountability and challenging impunity, these efforts are by themselves hardly sufficient to end the cycle of violence. As Judge Navi Pillay, formerly ICTR president and a distinguished ICC appeals chamber judge and most recently UN high commissioner for Human Rights rightly notes in her foreword to this volume, Africa needs to recalibrate its efforts towards the development of conflict prevention strategies, as a complement to the extant post-conflict justice mechanisms at the domestic and international levels. It appears that conflict prevention, an end to the cycle of violence, as well as enhanced quality of governance and leadership, are sine qua non to the continent’s quest for socio-economic development. This volume, which is intended to acknowledge and celebrate the tremendous contributions of Justice Jallow to the fight against impunity as chief ICTR prosecutor, contains twenty-seven invited essays from leading practitioners, judges, academics and researchers in the field of international criminal justice. Some of them have enjoyed long-standing personal and professional associations with Justice Jallow. Others are noted scholars and practitioners of international criminal law who have had professional interactions with him or even observed his work from a distance through the work of the Rwanda Tribunal. In approaching this particular group, as opposed to putting out a general call for papers which would have undoubtedly led to an even larger and perhaps less thematically coherent volume, we explained the general goal of the project as an essay collection in honour of Justice Jallow. We shared information on the topics that people planned to write on. But we left it to the individual authors to write on a topic of their choice that would be broadly relevant to the theme of promoting accountability for gross violations of human rights in Africa and the UN-ICTR. In this way, the work reflects their interest, and also of course, those of Justice Jallow. The opening of the book contains two important forewords which set the tone for and contextualize the subsequent essays in the remainder of the volume. In this regard, first, we are privileged to acknowledge the contribution of His Excellency Alhaji Sir Dawda Kairaba Jawara, former President of the Republic of The Gambia (1965–1994) who, despite his advanced age, has taken the time to put together personal reflections on his relationship with Justice Jallow over the decade for which the latter served as Attorney-General and Minister of Justice in The Gambia from 1984 to 1994. President Jawara remains one of the rare breed of African leaders with an exemplary record of respect xxii preface and acknowledgments for human rights, good governance and adherence to the rule of law. During his tenure and Justice Jallow’s stewardship at the Ministry of Justice, the Gambia became the hub of human rights policy planning, research and advocacy in Africa. It was the period during which the African Charter on Human and Peoples’ Rights was adopted, and the African Commission on Human and Peoples’ Rights set up its headquarters in Banjul, the capital of The Gambia. It is the centrality of that role which explains why, in addition to its official title, that important regional human rights treaty is today often referred to as the Banjul Charter. Similarly, we are grateful to Judge Navi Pillay for her eloquent contribution, which emphasized some of Prosecutor Jallow’s role as an international public servant at the United Nations level especially as the chief prosecutor of the Rwanda Tribunal. In her remarks, she discusses the tremendous progress that Africa and the international community have made to tackle gross human rights violations. But, equally so that we do not rest on our laurels, she points out the contemporary challenges facing the international community in its efforts to ensure accountability for gross violations of human rights and humanitarian law. We are reminded that while these efforts for justice are important and must be encouraged, they should be complemented by other action steps, including greater political will on the part of Member States of the United Nations, especially the permanent members of the United Nations Security Council. It is, as we have come to expect of Judge Pillay, a passionate call to action, not reaction; for honesty, not hypocrisy; for peace, not war – a loud clarion call to States, the United Nations and anyone who, like Justice Jallow, cares about the ongoing struggle to secure an international rule of law and justice for all those vulnerable who have been denied their most basic of human rights. As a former president of the UN-ICTR, who also played a vital role in the success of that experiment, we could not imagine a better person to write this foreword and thank her for supporting this project. In the interests of coherence and to some extent convenience, we have divided the essays into seven different but interlinked thematic clusters. These themes, though not intended to be exhaustive, reflect Justice Jallow’s wide range of interests and impact. Part 1 deals with Hassan Bubacar Jallow, the person. The four essays in this part are contributed by people who have known Justice Jallow for decades and worked with him in several capacities at the domestic and international levels. Cherno Jallow is a former Parliamentary Counsel and Legal Draftsman at the Ministry of Justice in The Gambia where he worked with Justice Jallow for many years. Murtaza Jaffer has worked in the Prosecutor’s Office at the ICTR for over a decade and served as Policy Adviser and Special Assistant to Justice Jallow. Ousman Jammeh is a former Master preface and acknowledgments xxiii of the Supreme Court of The Gambia, and former Trial Attorney at the ICTR. Aboubacar Abdullah Senghore, currently a minister of higher education in The Gambia but formerly the dean of the law school in Banjul, discusses Hassan Jallow’s role in advancing legal education in his native country, and through it, highlights his truly wide ranging impact on the law which can hardly be captured in a volume of this limited scope. Together, their four essays – written independently by four separate authors – depict a picture of a personable family man of great wisdom, devotion and humility, as well as an admired lawyer, judge, manager and firm but fair decision-maker committed to the best values of a “noble” profession. In part 2, Bankole Thompson, William Schabas and Phakiso Mochochoko, all well-known figures in contemporary discussions about international criminal law, discuss the role of the international prosecutor as a custodian of international morality, the always controversial topic of case selection, and the experiences of the ICTR in devising strategies to arrest fugitives from justice and possible lessons that the ICC could mine in that regard especially with regard to enhancing cooperation to improve the effectiveness and deterrent value of the permanent court. The contributors to Part 3, M. Cherif Bassiouni, Leila Sadat, David Tolbert and Laura Smith, address the institutional dimensions of international criminal justice from the perspective of either growing pains for a new permanent court still struggling to find its feet in the world or others that are near completion of their work and thinking about their long-term impact and legacy. In this part, Adama Dieng, who had a notably long association with the ICTR as its Registrar, broadens our view point by examining the role of regional organizations in protecting civilians from atrocity crimes. In part 4, the essays by Karim A. A. Khan and Dato’ Shyamala Alagendra, Roman Boed, Bongani Majola and a joint essay by Frédéric Mégret and Siena Anstis, discuss issues of substance and process in international criminal justice including cumulative charging and convictions, as well as the aiding and abetting debate over “specific direction” that has been at the forefront of the academic discourse since the Judgement of the Special Court for Sierra Leone Trial and Appeals Chambers in the seminal Taylor case and the ICTY Appeals Chamber in Perišić and Šainović. In his chapter, Charles Chernor Jalloh comprehensively analyzes the law and politics of the high profile trial of former Liberian President Charles Taylor in the United Nations-backed Special Court for Sierra Leone, where Justice Jallow (before departing for the ICTR) served in the Appeals Chamber. Fatou Bensouda, Linda Bianchi and George Mugwanya, all former ICTR prosecutors, discuss in Part 5 several elements of gender justice in international xxiv preface and acknowledgments criminal law. Prosecutor Bensouda, as the ICC’s Chief Prosecutor and one who for many years worked with Justice Jallow in The Gambia and later on at the ICTR, highlights her office’s recently released policy paper on sexual and gender-based crimes and the efforts she is undertaking to address a traditional blind spot of international criminal law. Bianchi and Mugwanya, who as former ICTR prosecuting attorneys also occupied a front row in the same struggle for gender justice at the Rwanda Tribunal, focus on Prosecutor Jallow’s efforts to ensure more effective charging and prosecution of sexual and gender-based crimes at the ICTR. As may be widely known, this was partly a response to the criticism of the Tribunal for failing to initially prioritize the investigation and prosecution of gruesome sexual acts that had a disproportionate but not exclusive effect on Tutsi women. Yet, reading the conclusions of all three authors, one is struck at how a policy change led by Prosecutor Jallow and his team made all the difference. They all did not shy away from taking up the challenge of a difficult and multi-pronged problem, with a particularly significant impact on women. And although the solutions devised may not have been perfect, their unwavering commitment and those of many others within and outside the Tribunal appear to have resulted in a source of strength in discussions of the legacy of the ICTR, but more importantly, some measure of justice for some of the victims of rape and other horrific acts of sexual violence which characterized the tragic 1994 Rwandan Genocide. We can already see the impact of this legacy on other tribunals, including the permanent International Criminal Court. In part 6, Alhagi Marong and Charles Chernor Jalloh, Alex Obote-Odora, and Joanna Harrington discuss the relationship between national and international criminal jurisdictions with specific reference to the law and jurisprudence on referral of cases from the Tribunal to national courts under Rule 11 bis of the ICTR Rules of Procedure and Evidence. It is noteworthy that Obote- Odora’s contribution also addresses additional aspects of Prosecutor Jallow’s contributions to international criminal justice, including his leadership on addressing prosecution of sexual violence (which theme was extensively discussed by the authors in Part 5) as well as internal policy reforms. Taken as a whole, these papers highlight the important role that the Office of the Prosecutor, with Justice Jallow at the helm, played in what could be considered as part of the indirect and perhaps more lasting effects that the ICTR had on the Rwandan legal system. By steadfastly working with national prosecutors, to bring about the changes required by the judges in denial of one referral application after another, Prosecutor Jallow helped chaperone a process that saw the return of the cases to the natural forum where justice is best served – in the long term – for the trial and punishment of those suspected of genocide. The suggestion was made that, even though the ICC model is predicated preface and acknowledgments xxv on concurrent jurisdiction with complementarity instead of concurrent jurisdiction with primacy which obtained at the ICTR, there are some lessons in the interactions between an international tribunal and national courts that the permanent Hague-based court could learn. The final part of the volume introduces an eclectic paradigm, which brings together essays from Geoffrey Robertson on unprecedented internal justice reforms within the United Nations that helped fill an impunity gap for the world’s leading bureaucrats; Rachel Murray’s discussion of the margin of appreciation in the jurisprudence of the African Commission on Human and Peoples’ Rights; Christopher Waters’s reflections on unconstitutional changes of government in Africa; Joseph Rikhof on linkages between international criminal law and refugee law; and finally, Leigh Swigart’s essay on the use of African languages in international criminal justice. We might note here that, in this part of the collection, Murray’s piece brings us full circle in terms of Justice Jallow’s interests, given his early contributions to the drafting and elaboration of the Banjul Charter and in the establishment of the Commission. We are excited to share all these thoughtful scholarly contributions with you, our readers, as well as with Justice Jallow in whose honour the authors kindly prepared them. It is our hope that he and everyone will find the range of topics covered in this volume both informative and valuable. We also aspire for this book to serve as a useful reference to all persons interested in issues of international law, especially the ICTR, not only in Africa but also around the world. Before concluding, it would be appropriate to express our heartfelt appreciation to many people, each of whom contributed to the successful realization of this project in some way. First and foremost, we thank the authors and contributors who have sacrificed valuable time and effort to put their essays together. Without willing and dedicated contributors, you can never have a festschrift, let alone one of substantial depth and quality. We are also collectively grateful to our personal assistants, Patty Blake of University of Pittsburgh School of Law, and Koshan Ahmed Jelani of the Legal Affairs Unit at the United Nations Assistance Mission in Afghanistan (UNAMA), both of whom worked tirelessly at the start of the project to make sure that our correspondence with the contributors was ably and effectively managed. We also wish to express appreciation to the following students at Florida International University, College of Law, who volunteered time, sometimes in close proximity with end of semester exams or term papers, to help with essay footnote checks and conversions. In this regard, our sincere thanks go out to Kristina M. Bado, Ingrid Cepero, Sara Garcia, Bartholomew Stoddard, Arvind Singh and Erik Zorilla and the Research Fellows Program coordinated xxvi preface and acknowledgments by Joëlle Moreno, Professor of Law and Associate Dean for Faculty Research and Development at FIU Law. The following people at Brill/Martinus Nijhoff Publishers, in particular Lindy Melman and Bea Timmer and Pieter te Velde, our assigned editor, all of whom deserve our appreciation for their support throughout the process from the proposal review through to the contracting stages and the publication of this work. Finally, but by no means least, we wish to thank our spouses, Janewa and Tida, as well as our children, Lamin, Sal, Sheriff, Chay, Binta, Kannin, and Musa for their support and understanding throughout the period for which we worked on this project. They all know “Uncle Hassan” and as members of one large African and human family, also admire and celebrate his dedication, friendship and achievements. We all sincerely hope that this volume will be a worthy tribute to his extraordinary contributions to the work of the ICTR and the fight against impunity in Africa and internationally. Hassan Bubacar Jallow: A Biographical Summary

Justice Hassan Bubacar Jallow, a Gambian lawyer and jurist, was appointed the Prosecutor of the Mechanism for the International Criminal Tribunals by the UN Security Council on 1 March 2012 for a term of four years. Prosecutor Jallow also continues as the Prosecutor of the International Criminal Tribunal for Rwanda (UN-ICTR), a position he has held since 2003. Born in 1951, Prosecutor Jallow began his legal career in 1976 as a State Attorney in The Gambia until his appointment as the Solicitor-General of The Gambia in 1982. He also served as a legal expert for the Organization of African Unity, and participated in drafting and concluding the African Charter on Human and Peoples’ Rights, which was adopted in 1981. From 1984 to 1994, he served as The Gambia’s Attorney-General and Minister of Justice. He subsequently worked as a Judge of the Supreme Court of The Gambia from 1998–2002. In 1998 Prosecutor Jallow was appointed by the United Nations Secretary- General to carry out a judicial evaluation of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for Yugoslavia. He has also served the Commonwealth in various respects including chairing the Governmental Working Group of Experts in Human Rights and as member of the Commonwealth Arbitral Tribunal. Prior to becoming the Prosecutor of the International Criminal Tribunal for Rwanda, he was a Judge of the Appeals Chamber of the Special Court for Sierra Leone on the appointment of the UN Secretary-General in 2002. Justice Jallow was also elected by the UN General Assembly as a judge ad litem of the International Criminal Tribunal for the former Yugoslavia. Prosecutor Jallow studied law at the University of Dar es Salaam, Tanzania (1973), the Nigerian Law School (1976) and the University College, London (1978). He is bilingual in English and French and author of a series of publications, notably on issues relating to international criminal law, public international law, international human rights law as well as on international peace and justice. Prosecutor Jallow is the recipient of the honour of Commander of the National Order of the Republic of The Gambia, the country’s highest award. He is married to Aja Fatou Jaye Jallow, with five children. Abbreviations

ACHPR African Charter of Human and Peoples’ Rights alad Appeals and Legal Advisory Division AFRC Armed Forces Revolutionary Council ANCs Accountability Now Clubs APC All People’s Congress ASP Assembly of States Parties of the International Criminal Court AU African Union AZAPO Azanian Peoples Organization CCP Commission for the Consolidation of Peace CDF Civil Defense Forces CEDAW Convention on the Elimination of All Forms of Discrimination Against Women CoJA Coalition for Justice and Accountability CoP Chief of Prosecutions CRC Convention on the Rights of the Child CSOs Civil Society Organizations DAC Directive on the Assignment of Counsel DSS ECCC’s Defence Support Section ECCC Extraordinary Chambers in the Courts of Cambodia ECHR European Convention on Human Rights ECOMOG Economic Community of West African States Monitoring Group ECOWAS Economic Community of West African States EIDHR European Instrument for Democracy and Human Rights EU European Union FRY Federal Republic of Yugoslavia GNU Government of National Unity GoSL Government of Sierra Leone HRW Human Rights Watch ICC International Criminal Court ICC&Ts International Criminal Courts and Tribunals ICcPR International Covenant on Civil and Political Rights ICG International Crisis Group ICJ International Court of Justice ICRC International Committee of the Red Cross ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia IHL International Humanitarian Law abbreviations xxix

Ijc Internal Justice Council IMT International Military Tribunal at Nuremberg IMTFE International Military Tribunal for the Far East IOs International Organizations jab Joint Appeals Board JCE Joint Criminal Enterprise JDC Joint Disciplinary Committee MICT Mechanism for International Criminal Tribunals NCDDR National Commission for Disarmament, Demobilization and Reintegration NCDHR National Commission for Democracy and Human Rights NPFL National Patriotic Front of Liberia NPRC National Provisional Ruling Council NPWJ No Peace Without Justice OAU Organization of African Unity OHCHR Office of the High Commissioner for Human Rights ois Office of Internal Oversight Services (UN) OPCD Office of Public Counsel for the Defense OPD Office of the Principal Defender osla Office for Staff Legal Assistance OTP Office of the Prosecutor OTP WMU Office of the Prosecutor Witness Management Unit pdb Prosecutor’s Daily Briefing (ICTR) POW Prisoner of War PTC Pre-Trial Chamber of the International Criminal Court raf Rwandan Armed Forces rpa Rwandan Patriotic Army RPE Rules of Procedure and Evidence rpf Rwandan Patriotic Front RUF Revolutionary United Front Rules Rules of Procedure and Evidence sac Senior Appeals Counsel (sometimes interchanged with Senior Trial Attorneys, STA) SCSL Special Court for Sierra Leone SLPP Sierra Leone People’s Party STL Special Tribunal for Lebanon TRC Truth and Reconciliation Commission UDHR Universal Declaration of Human Rights U.K. United Kingdom U.N. United Nations xxx abbreviations

UNAMID United Nations Assistance Mission in Darfur UNAMir United Nations Assistance Mission in Rwanda unat United Nations Appeals Tribunal undf United Nations Detention Facility undt United Nations Disputes Tribunal UNICEF United Nations Children’s Fund UNMIL United Nations Mission in Liberia UNOMSIL United Nations Observer Mission in Sierra Leone U.N.S.C. United Nations Security Council UNSG United Nations Secretary-General UNTAET UN Transitional Administration in East Timor U.S. United States WVS Witness and Victims Section WVSS Witness and Victims Support Section Notes on Contributors

Dato’ Shyamala Alagendra is a member of the Bar of Malaysia and, for several years, worked as international Prosecutor in the Special Panels for Serious Crimes in East Timor. She then worked as a Trial Attorney in the Special Court for Sierra Leone prosecuting in the AFRC, RUF and Taylor cases. Between 2008 and 2011 she was a Trial Lawyer in the Office of the Prosecutor of the ICC. She has now returned to private practice, including as defence counsel before the ICC in the Muthaura et al. and Ruto et al. cases, before the EULEX Courts in Kosovo, and before the STL representing Al Jadeed S. A. L. and Karma Khayat.

Siena Anstis has a B.C.L./LL.B. from McGill University and a B.A. in Journalism and Anthropology from Concordia University. She is a former legal intern in the Appeals Division of the Office of the Prosecutor at the ICTY and summer litigation associate with Morrison & Foerster in New York City. She has worked in human rights law, international development, and freelance journalism in Cambodia, Kenya, Uganda, Syria and Kosovo. Currently, she is a law clerk at the Court of Appeal for Ontario and will be clerking for Justice Cromwell at the Supreme Court of Canada in 2015.

M. Cherif Bassiouni is Emeritus Professor of Law, DePaul University College of Law, President, International Institute for Higher Studies in Criminal Sciences and Honorary President, Association Internationale de Droit Pénal.

Fatou Bensouda was elected by consensus as Prosecutor of the International Criminal Court by the Assembly of States Parties on 12 December 2011. She was sworn in on 15 June 2012. Mrs. Bensouda had previously held the position of ICC Deputy Prosecutor (Prosecutions), having been elected with an overwhelming majority by the Assembly of States Parties on 8 August 2004 and serving as such until May 2012. Prior to her work at the ICC, she worked as Legal Adviser and Trial Attorney at the International Criminal Tribunal for Rwanda in Arusha, Tanzania, rising to the position of Senior Legal Advisor and Head of The Legal Advisory Unit. Before joining the ICTR, she held several positions in her native country, The Gambia, including service as Attorney General and Minister of Justice. xxxii notes on contributors

Linda Bianchi is a Crown Counsel for the Public Prosecution Service of Canada in Ottawa. From 2003 to 2010, she worked at the International Criminal Tribunal for Rwanda in the Office of the Prosecutor (OTP), and as Senior Appeals Counsel in the Appeals and Legal Advisory Division. She was a founding member and Chairperson of the Committee for the Review of the Investigation and Prosecution of Sexual Violence at the OTP.

Roman Boed is Senior Legal Officer and Chief of the Appeals Chamber Support Section at the UN International Criminal Tribunal for Rwanda. He sits on the editorial board of the International Criminal Law Review and has published articles and chapters on various topics of public international law, human rights law, and international criminal law. He holds Master of Law degrees (LLM) from Cambridge University (1998) and Columbia University (1999), Juris Doctor degree (JD) from DePaul University (1994), and a Bachelor of Arts (BA) from Lawrence University (1987).

Adama Dieng was appointed by the United Nations Secretary General Ban Ki-Moon as the United Nations Under Secretary General and Special Adviser on the Prevention of Genocide in July 2012. He previously served as the Assistant Secretary General and Registrar of the International Criminal Tribunal for Rwanda from 2001 to 2012.

Joanna Harrington is a Professor in the Faculty of Law and an Associate Dean in the Faculty of Graduate Studies and Research at the University of Alberta in Canada. She has combined an academic career, specializing in constitutional law and international law, with experience as a legal adviser, serving from 2006–2008 as the Scholar-in-Residence with the Legal Affairs Bureau of the Canadian Department of Foreign Affairs and International Trade. She has represented Canada at international negotiations at the United Nations, the Organization of American States, and the Assembly of States Parties of the International Criminal Court. She qualified as a lawyer in 1995 and earned her Ph.D. in Law from the University of Cambridge.

Murtaza Jaffer is the Special Assistant to the Prosecutor, UN-ICTR & UN-MICT. He holds a law degree from the University of Dar-es-Salaam, Tanzania and is presently notes on contributors xxxiii completing an M.P.A. at the Hertie School of Governance, Berlin. Jaffer was a judge of the Industrial Court bench in Kenya prior to joining the ICTR in 2006 as the OTP Policy Coordinator. Jaffer has previously held positions in government and the nonprofit sector in Kenya. He has extensive experience in legal and human rights and organizational capacity building work in several African countries including Kenya, Somalia and Southern Sudan.

Charles Chernor Jalloh B.A. (Guelph) LL.B. (McGill) B.C.L. (McGill) M.St. (Oxon) and Chevening Scholar. He is an Associate Professor at Florida International University College of Law, Miami, USA, where he was honored by the President and Provost of the University as an FIU Top Scholar for 2015. He has practiced law in the Canadian Department of Justice, the Special Court for Sierra Leone, the International Criminal Tribunal for Rwanda and served, as a Visiting Professional, in the International Criminal Court. A United States-Branch nominated member of the International Law Association’s first ever Committee on Complementarity in International Criminal Law, he has published and lectured widely on issues of international criminal justice including most recently (as editor) The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law (Cambridge, 2014). He is the founding editor in chief of the African Journal of International Criminal Justice and the African Journal of Legal Studies.

Cherno S. Jallow, QC is Director of Policy, Research and Statistics at the British Virgin Islands (BVI) Financial Services Commission. Prior to his appointment with the Commission, he served as Attorney General of the BVI from 1999 to 2007, and as Parliamentary Counsel in the Attorney General’s Chambers of The Gambia from 1995 to 1999.

Ousman A. S. Jammeh serves as Counsel at the African Development Bank. Before joining the Bank, he served at the Prosecutor’s Office of the UNICTR from 2005 to 2011; as Master and Registrar of the High Court of The Gambia from 1997–2001; and as a private legal practitioner in The Gambia from 2002 to 2005.

Sir Dawda Kairaba Jawara is a Gambian politician and veterinarian who was the country’s first prime minister from 1962 to 1970 and its president from 1970 until 1994. xxxiv notes on contributors

Karim A. A. Khan, QC is a Barrister at Temple Garden Chambers, London and specialises in international criminal and human rights law. He has been engaged in leading cases at the ICC, ICTY, SCSL, ICTR, ECCC and STL. He was a lawyer in the Office of the Prosecutor in the ICTY and ICTR between 1997 and 2000.

Bongani Majola is an Assistant Secretary-General of the United Nations and Registrar of the International Criminal Tribunal for Rwanda (ICTR). He was also the Deputy Chief Prosecutor of the ICTR for almost ten years, from January 2003 to December 2012, where he provided support to the Chief Prosecutor in executing his mandate to prosecute those who bore the highest responsibility in the commission of genocide and other serious violations of international humanitarian law in Rwanda in 1994. His education includes an LL.M. from Harvard Law School.

Alhagi B. M. Marong LL.B. Hons (University of Sierra Leone) LL.M. (McGill) DCL (McGill). He is Legal Affairs Officer at the United Nations Mission in South Sudan (UNMISS). Before joining UNMISS, he worked as a Legal Officer at the UN Mission in Afghanistan, and prior to that, in the Chambers Support Section of the UN International Criminal Tribunal for Rwanda as well as a Senior Legal Officer at the Appeals Chamber of the Special Court for Sierra Leone. He also taught international law at the American University of Armenia, served as Staff Attorney and Africa co-Director at the Environmental Law Institute in Washington DC., and as State Counsel at the Ministry of Justice in The Gambia.

Frédéric Mégret is an Associate Professor of Law at McGill University, and the Canada Research Chair on the Law of Human Rights and Legal Pluralism.

Phakiso Mochochoko is the Director, Jurisdiction, Complementarity, and Cooperation Division, Office of the Prosecutor, International Criminal Court. Formerly Legal Counsellor to the Permanent Mission of Lesotho to the United Nations, in which capacity he served, inter alia, as Vice-Chair of the Committee of the Whole and the Chairman of the Working Group on International Judicial Cooperation during the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. notes on contributors xxxv

George Mugwanya is Senior Attorney at the International Criminal Court, Office of the Prosecutor. Prior to that he served as Senior Appeals Counsel, UN Tribunal for Rwanda; Advocate, Uganda’s Courts of Judicature; formerly Senior Lecturer, Faculty of Law Makerere University; LL.D (Notre Dame; LL.M. (Birmingham); LL.M. (Pretoria) LL.B. (Makerere); Post-graduate Diploma in Legal Practice (Law Development Centre).

Rachel Murray is Professor of International Human Rights Law, University of Bristol; Director of Human Rights Implementation Centre, University of Bristol Law School. She has had a long-standing interest in the work of the African human rights system, publishing books and articles in this area. She is editor of the African Journal of International and Comparative Law.

Alex Obote-Odora is currently Advocate and Legal Consultant in Sweden. He previously served as Legal Advisor, Senior Legal Adviser/Special Assistant to the Prosecutor, Chief of Appeals and Legal Advisory Division (ALAD), Office of the Prosecutor, United Nations International Criminal Tribunal for Rwanda (ICTR)(2000– 2010); Lectured in Basic criminal law and international criminal law at Universities of Stockholm and Swaziland (1994–1999); Executive Director of Humanitarian Organization of Ugandans in Sweden (HOURS)(1989–1993); Practising Advocate in Zambia and Uganda (1977–1987). Obote-Odora holds LLB (Hons.) degree (Makerere); Post-Graduate Diploma in Legal Practice (Law Development Centre); LLM and LLD degrees (Stockholm). He was enrolled to the Uganda Bar in 1977.

Navi Pillay was the United Nations High Commissioner for Human Rights between 2008 and 2014. Ms. Pillay, a South African national, was the first woman to start a law practice in her home province of Natal in 1967. Over the next few years, she acted as a defence attorney for anti-apartheid activists, exposing torture, and helping establish key rights for prisoners on Robben Island. In 1995, after the end of apartheid, she was appointed as acting judge on the South African High Court, and in the same year was elected by the UN General Assembly to be a judge on the International Criminal Tribunal for Rwanda, where she served a total of eight years, the last four (1999–2003) as President. She played a critical role in the ICTR’s ground breaking jurisprudence on rape as genocide, as well as on issues of freedom of speech and hate propaganda. In 2003, she was xxxvi notes on contributors appointed as a judge on the International Criminal Court in The Hague, where she served on the Appeals Chamber until August 2008.

Joseph Rikhof has received a BCL, University of Nijmegen, The Netherlands; an LL.B, McGill University; a Diploma in Air and Space Law, McGill University and a PhD, Irish Center for Human Rights. He teaches International Criminal Law at the University of Ottawa. He is Senior Counsel, Manager of the Law with the Crimes against Humanity and War Crimes Section of the Department of Justice, Canada. He was a visiting professional with the International Criminal Court in 2005 while also serving as Special Counsel and Policy Advisor to the Modern War Crimes Section of the Department of Citizenship & Immigration between 1998 and 2002. His area of expertise lies with the law related to organized crime, terrorism, genocide, war crimes and crimes against humanity, especially in the context of immigration and refugee law.

Geoffrey Robertson is founder and head of Doughty Street Chambers, Europe’s largest human rights practice. He served as first President of the Special Court for Sierra Leone and sat as a ‘distinguished jurist’ member of the UN’s Internal Justice Council, 2008–12. His books include “Crimes Against Humanity – The Struggle for Global Justice” (Penguin, and New Press, 4th edn, 2012); “The Tyrannicide Brief” (Random House, 2005) and a best-selling memoir, “The Justice Game” (Vintage, 1998). He is a Master of the Middle Temple and a Visiting Professor in Human Rights at London University. In 2011 he was awarded the New York Bar Association prize for Achievement in International Law.

Leila Nadya Sadat is Henry H. Oberschelp Professor of Law, Director of the Whitney R. Harris World Law Institute, Washington University in St. Louis and Special Adviser on Crimes Against Humanity to ICC Prosecutor Fatou Bensouda.

William A. Schabas is professor of international law at Middlesex University in London and professor of international criminal law and human rights at Leiden University. He is also emeritus professor at the National University of Ireland Galway and a distinguished visiting professor at the Paris School of International Affairs (Sciences-Po). The author of books and articles on the abolition of capital punishment, genocide and the international criminal tribunals, he was a member notes on contributors xxxvii of the Sierra Leone Truth and Reconciliation Commission. He is an Officer of the Order of Canada, a member of the Royal Irish Academy and holds several honorary doctorates.

Aboubacar Abdullah Senghore is former Dean of the Faculty of Law at The University of The Gambia. He is currently Minister of Higher Education and Technology in the Republic of The Gambia, and has previously served as Minister of Foreign Affairs. He holds a Ph.D. in International Human Rights Law from the International Islamic University in Malaysia.

Laura A. Smith is Chief of Staff of the International Center for Transitional Justice (ICTJ). She joined ICTJ in 2010 as Legal Advisor. Ms. Smith also served as an Adjunct Professor of Law for the Walter Leitner International Human Rights Clinic of Fordham University School of Law.

Leigh Swigart is Director of Programs in International Justice and Society, International Center for Ethics, Justice and Public Life, Brandeis University, Waltham MA, USA. Swigart has a Ph.D. in cultural anthropology with a focus on African soci- olinguistics. Since 2002 she has overseen the Brandeis Institute for International Judges (BIIJ) and other programs for judges and international law practitioners worldwide.

Bankole Thompson MA, LLB, PhD (University of Cambridge). He was from 2002–2009 a Judge of the Special Court for Sierra Leone. During that period, he was on leave from Eastern Kentucky University where he was Professor of Criminal Justice Studies and Dean of the Graduate School. He also taught at Kent State University and Akron School of Law where he held the David Brennan Endowed Chair of Comparative Constitutional Law. In Sierra Leone, Judge Thompson served variously as State Counsel and High Court Judge. He was also Interim Dean of the Sierra Leone Law School. He is also currently a member of the West African Commission on Drug Trafficking and other Transnational Crimes, sponsored by the Kofi Annan Foundation. Dr. Thompson has published extensively including books on the constitutional law and criminal law of Sierra Leone. Presently, he is Professor Emeritus at Eastern Kentucky University and a Judge of the Residual Special Court for Sierra Leone. xxxviii notes on contributors

David Tolbert is President of the International Center for Transitional Justice; formerly, Deputy Chief Prosecutor, Deputy Registrar, Chef de Cabinet to the President, International Criminal Tribunal for the Former Yugoslavia (ICTY); Special Expert to the Secretary-General on the United Nations Assistance to the Khmer Rouge Trials; Registrar, Special Tribunal for Lebanon; Executive Director, American Bar Association Central European and Eurasian Law Initiative.

Christopher Waters is Professor at the Faculty of Law, University of Windsor, where he teaches public international law courses. Prof. Waters is a member of the Ontario Bar and holds a doctorate in law from McGill University. He has extensive human rights field experience in the Balkans and Caucasus, including with the OSCE and NGOs. Prof. Waters has published in law journals including the American Journal of International Law and the Canadian Yearbook of International Law and is the author/editor of several books, including A Guide to International Law Careers, published by the British Institute of International and Compara tive Law. Part 1 Hassan Bubacar Jallow – The Man

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Chapter 1 Hassan Bubacar Jallow: The Man on a Journey for Justice

Cherno S. Jallow, QC

My first encounter with Alhaji Hassan was in July 1988 in the Attorney General’s Chambers in Banjul. It was a chance encounter. I had just returned to The Gambia after four years of absence pursuing a programme of study in law at the International Islamic University in Malaysia. I visited the Chambers to see a friend, Hussein (Lucien Jack) Thomasi, who was already employed as a State Counsel. While chatting with Thomasi in his office, Alhaji Hassan walked in. I had no clue who the man was, although I had heard about him being the Attorney-General and Minister of Justice at the time. Thomasi introduced us and we had a little chat. Alhaji Hassan then invited me to see him in his office before I left which I did. He later invited me to join his Chambers. I served under his leadership as Attorney-General and Minister of Justice until that fateful day of 22nd July, 1994 when the military interrupted democratic governance in The Gambia. What struck me the most on my initial encounter with Alhaji Hassan was his humility. I found a rare trait in him that was not present in many other persons in positions of high authority – the ability to interact with the common man without making the common man feel awkward or out of place. The ensuing years working under him had taught me a lot not only about the man’s humble approach to human relations, but also about his beliefs and convictions in the true administration of justice. He was just as approachable as he was passionate about debating legal and social issues, including issues concerning government. I found him to be a good listener and he was never the one to dismiss anybody out of hand. He was alright if you disagreed with him on any matter and you could leave with the confidence that a counter opinion you had rendered would never be used against you. During my formative years in the Chambers as a young lawyer, I worked very closely with Alhaji Hassan. He essentially had an open-door policy and his lawyers could stream in and out of his office as was necessary to discuss work-related matters so long as he was free and available. He had time for his staff generally and would occasionally take a walk within the Chambers to visit each office briefly to find out how the staff were doing and to discuss specific

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_002 4 Jallow concerns or issues (if any were raised). I drew inspiration from those attributes and they were to serve me well many years later during my tenure as Attorney- General of the British Virgin Islands from 1999 to 2007. From those formative years in the Chambers, I came to realize that Alhaji Hassan was on a journey – a journey that was two-dimensional. He was on a journey to contribute his one hundred per cent quota to the development of his country the best way he could. He performed his duties as Attorney- General and Minister of Justice with honesty, integrity and fairness and set an example for many to follow. He was at many times involved in matters that had nothing to do with the law. He was somewhat of an emissary to whom people narrated their problems so he could provide them with necessary advice. This was Alhaji Hassan the social being, the man who realized and demonstrated that, in its truest form, knowledge is acquired to serve community and make a positive difference in other people’s lives. The other dimension of his journey was the quest for justice (or “journey for justice” as reflected in the title of his latest book). The one fundamental attribute I know he shares with President Sir Dawda Kairaba Jawara is his understanding of and love for the rule of law. As a lawyer and as Attorney- General and Minister of Justice, Alhaji Hassan understood the value of respect for the rule of law; he saw it as the foundation for a stable society, not as a fig- ment of anybody’s imagination or as an ideology of any person, authority or institution. He saw and believed in it as an embodiment of God’s given right to mankind, rather than as a concept. He believed that every human being is entitled to be treated fairly and to be accorded the due process of law without let or hindrance. He believed in just and fair laws that were applied evenly and not according to one’s status in life. These beliefs extended to ensuring that people who held positions of trust, whether in the public service or otherwise, were held accountable in accordance with the law. He was not the one to be moved into making hasty decisions. For him, every adverse decision against a person required careful consideration to ensure that ultimately the fundamental tenets of the rule of law were upheld on all fronts. As young lawyers at the time, there were some of us who felt that certain persons against whom accusing fingers were pointed should have been immediately arrested and prosecuted. Sometimes we felt that the laws needed to be more stringent without considering the long term ramifications on society. With growth and maturity we now realize the wisdom of upholding the rule of law even in the most adverse circumstances. When citizens are accused by the State of committing offences without evidence (or on the flimsiest of evidence), or unfairly arrested and detained (or kept incommunicado), or unjustly prosecuted, or convicted on questionable (and sometimes untenable) evidence, the The Man on a Journey for Justice 5 result is normally widespread frustration and harbouring of ill feelings that could ultimately mature into negative consequences that destabilize society. These are the things that undermine the rule of law. Alhaji Hassan instilled in his lawyers in the Chambers the value of understanding and appreciating these issues and admonished us to do the right thing in the performance of our duties as State law officers. So much was our conviction on human rights and rule of law issues that when the military bulldozed their way to power in July 1994 and sought to revoke the 1970 Constitution in its entirety, we argued and convinced them to retain the Chapter on Fundamental Rights and Freedoms.1 Alhaji Hassan was (and still is) a strong advocate of respect for the rights and freedoms of all Gambians. That did not come as a surprise to his staff in the Chambers, considering his solid stance on the issue of respect for the rule of law – well, in reality, the two go together. As a society, we recognised the importance of according citizens their rights to assemble and associate freely, move about freely, express opinions freely, profess and practice their faith freely and be protected by the State against any abuse or inhumane treatment, slavery and forced labour, discrimination, or unjust interference with their property. Alhaji Hassan guided his Chambers on these fundamental principles guaranteed by the Constitution and thus effectively solidified respect for human rights in The Gambia. In addition, I recognised and admired the distance Alhaji Hassan had maintained between the Chambers as an executive portfolio of the Government and the judiciary, while at the same time ensuring a good working relationship between the two institutions. He made sure that whenever he or the Chief Justice needed to discuss any matter he would be the one to call on the Chief Justice in the latter’s office. For him, it was about ensuring the continued integrity of the judiciary and judicial independence and keeping at bay what might be perceived as interference – matters that others take for granted, but which experienced persons understand and respect as a fundamental aspect of the rule of law. But then one does not necessarily have to have any particular experience to understand the value and benefit of the rule of law. Alhaji Hassan administered his Chambers on these principles insofar as the application of the law was concerned and in our official dealings with people. He made us realize that law is not simply about legal interpretations or about what is right and wrong on the surface. Rather, he made us realize that when it

1 Unfortunately this Chapter was subsequently revoked after a few months when a team of Ghanaian lawyers and judges, brought in temporarily to assist with the workload of the Chambers and the judiciary at the time, advised that human rights had no place in a revolution. We disagreed, but lost the argument. 6 Jallow came to dealing with people, law is, above all else, about what is fair and just. In other words, he understood and respected the real language of the rule of law. He continues to live and breathe this language as evidenced in his assessment of The Gambia’s 1970 and 1997 constitutions in his book Journey for Justice.2 He remarks that at the end of the day the essential issue in assessing any “constitution is to determine whether it has in reality enabled good government to flourish, based on respect for the rule of law, human rights, the independence of the judiciary, the freely expressed consent of the people and with governmental power dedicated to improving the quality of life of the people in all respects”.3 Those of us who had the privilege of working with Alhaji Hassan and under his sterling leadership marvel at his brilliance, tact, humility, respect for human rights and the rule of law, sense of fairness and justice, tenacity for hard work and his unselfish and conscientious approach to dealing with people and national issues. His journey for justice is a noble one and one we must all emulate and join in to make a marked difference in the lives of fellow men and women.

2 Published by AuthorHouse, 2012. 3 Op. cit. at pages 338–339. Chapter 2 Hassan Bubacar Jallow: The Man behind the Action

Murtaza Jaffer

I’ve learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel. – Maya Angelou

There are many articles on United Nations International Criminal Tribunal for Rwanda (UN-ICTR) and the Mechanism for International Criminal Tribunals (MICT), Prosecutor Justice Hassan Bubacar Jallow’s achievements in the field of law, governance and human rights. His work with the African Charter on Human and Peoples’ Rights and generally with the United Nations, the African Union and in his home country, The Gambia, is also well documented. Having worked closely with Prosecutor Jallow as the Policy Coordinator in the Office of the Prosecutor (OTP) and later as his Special Assistant (2009–2014), my focus in this essay is on the person behind the action. As a principal driver of the UN-ICTR, and more recently the MICT agenda, the Prosecutor has always had a large presence in the organization. The impact of Prosecutor Jallow’s personality on the UN-ICTR has been remarkable. He is an able and experienced administrator. He has served as a former Attorney-General and Minister for Justice in The Gambia, consultant to the United Nations and the Commonwealth as well as a Judge of various national and international Courts. His grasp of policy needs, sound administrative management and focus on the core mandate has been a major stabiliz- ing influence on the work of the UN-ICTR. With experience in national civil service at the highest levels and a good understanding of the UN diplomatic maze, he has negotiated the OTP’s agenda in a remarkable manner. One sees substantial relevant experience at play when Prosecutor Jallow is dealing with national or international cooperation for the arrest of fugitives, witness protection, witness support or national capacity building in Rwanda. Despite this experience, my personal belief, having seen Prosecutor Jallow ‘in action’ over the years, is that it is the force of his personality that is often responsible for the positive results. He instinctively understands power dynamics and personally carries power and authority with great humility and steely firmness; yet never losing the ever present smile, soft

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_003 8 Jaffer spoken delivery and magnanimity in dealing with his peers or subordinates. For me the beauty is that it is genuine and uncontrived. At one of the International Prosecutor’s Colloquium a few years ago, a senior member of the OTP from one of the other tribunals asked me, “Who is this man?” Thinking that he does not know him, I introduced Prosecutor Jallow and the quick response was “Yes, I know, but how has he acquired this calm spiritual presence?” On meeting him one is struck with his approach to people and issues. He immediately comes across as a quiet, thoughtful person who appreciates the other, is careful in his demeanour and humble. A soft smile plays on his lips throughout the conversation, with him often repeating to himself what you have said in order to better understand your point of view. The son and spiritual heir of a prominent Sufi Sheikh, the late Alhaji Bubacar Zaidi Jallow, Imam of Bansang, The Gambia, his upbringing is steeped in the values of the Islamic Sufi tradition. At work he is always the first to greet others, asking after their health and of their families; going on a weekly ‘walk-about’ down the office corridors, stopping at each door for a chat with the staff member, asking about their work, their health and that of their families. He knows most of the staff by first name, and often their spouses and children as well. An ‘open door’ policy in the office allows staff members to see him on work related or personal issues. At times it can get frustrating but his response is always that “one does not keep away from the people”. He does not get carried away by the enthusiasm of others or negatively comment on remarks made about others. It is wonderful to work with someone who does not discuss people but focuses on issues; looking for ways to validate the opinions and feelings of others whilst taking time to reflect and make up his mind. With time I realized that his deep spiritual background perhaps provides him with a sense of balance and distance from the immediate events and that this world view allows a bird’s eye perspective into the context of the long term and potential impact. I have watched Prosecutor Jallow deal with tense situations ranging from agitated staff members, defence counsel all the way to UN officials. Never once did I see him get sucked into the agitation of the moment. Despite giving a patient hearing, he remains alert and aware. If the situation allows for it, he would invite one to his office for a quieter chat and give you a full hearing. Positions of authority bring with it power to take action and affect situations. He does not use this power reactively. There is always a reflective pause before he gives an opinion or directive. It can often be lonely at the top. I believe that Prosecutor Jallow uses the vantage point to make others comfortable. The Man Behind the Action 9

Justice Jallow has a phenomenal memory. At meetings he maintains his attention on the agenda, always insisting on a formal agenda so that the discussion remains focused and time-bound. He personally takes few notes. Yet at the end of even a long meeting, we would receive individual memos from the Prosecutor, setting out the decisions taken at the meeting and our responsibility for time-bound action. Similarly he would remind me weeks after an event that a particular action was to be completed by a certain date and I should check on the progress. I was often taken aback as to how he would remember a minor detail in the midst of so much else happening around his office. Staff who make reports to him or attend management meetings respect his method of censure; if one slips up s/he will never be reprimanded in the presence of others. It will always be a quiet one-on-one chat in private. Many have tried to test Prosecutor Jallow to react out of turn. There was much ado about the lack of prosecution of sexual offences committed in Rwanda. Whilst accepting that the Tribunal could do more, he quietly re- established the sexual offences task force within OTP to review all cases and ensure that such cases were not neglected. To ensure that sexual offences were investigated and prosecuted properly, he mandated training for investigators, appointment of female investigators and engagement of experienced female counsel to work with investigators. The work on sexual violence offences became part of the OTP’s legacy work as well and has recently culminated in the launch of an international manual on the investigation and prosecution of sexual violence in situations of armed conflict.1 Similarly calls for prosecution of alleged Rwandese Patriotic Front atrocities also led to methodical investigations and transfer of one case found to merit prosecution to Rwanda. This move, though much criticized in some quarters, paved the way for the prosecution of high level Rwandese suspects in Rwanda and subsequently the transfer and prosecution of UN-ICTR indictees in Rwanda. The initial failure to transfer cases to Rwanda also led to quiet but consistent institutional capacity building and legal reform efforts with the Rwandan Prosecutor-General’s office. Prosecutor Jallow’s deeper understanding of the UN-ICTR’s mandate, the international fatigue over the work of the ad hoc international tribunals and

1 Office of the Prosecutor of the Int’l Criminal Tribunal for Rwanda, Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Post-Conflict Regions: Lessons Learned from the Office of the Prosecutor for the International Criminal Tribunal for Rwanda (Jul. 20, 2014), http://www.unictr.org/sites/unictr.org/files/publications/ICTR-Prosecution- of-Sexual-Violence.pdf. 10 Jaffer his respectful approach to Rwanda’s post-genocide realities led to an eventually successful transfer of cases to Rwanda. In well-organized cooperation with Rwanda, quick constitutional, legal and judicial reforms led to successful prosecution in Rwanda of the transferred cases. A deeper analysis of this process will reveal Prosecutor Jallow’s successful efforts at building concrete anti-impunity bridges between the UN system and member states, especially in the context of the current realities of mass atrocity crimes in the African Great Lakes regions. A quiet, persistent and focused set of efforts has paid greater dividends. The end of the Prosecutor Moreno-Ocampo’s tenure at the ICC also led to much speculation and calls for Prosecutor Jallow to join the fray for an ‘African Prosecutor’. Whilst he had both continental and international legitimacy, he remained non-committal. Within the OTP one could see that the Prosecutor remained focused on the completion of his UN-ICTR mandate and the fight against impunity on the continent. He was not allowing side shows to distract the OTP and himself from the fundamental task at hand. The Security Council decision to establish a residual mechanism pending the closure of the UN-ICTR (Arusha) and the UN-ICTY (The Hague) raised concerns amongst some staff members who saw no value in creating a duplicate organization. They could also foresee a threat to their employment as the residual mechanism was going to be ‘lean and mean’. Others saw the establishment of the residual mechanism as an imposition and a vote of censure upon the tribunals for not completing their respective workloads quickly enough. The Prosecutor, on the other hand, had seen ahead and quickly mobilized OTP staff to focus on the task at hand and to start thinking about what the establishment of a residual mechanism would entail in law and practice. His concern was on how to position the OTP to best ensure that its work and progress is not disrupted. His leadership immediately got the OTP management behind the project. A colleague at the time remarked to me that he supported the Prosecutor because he was convinced that “when the time for downsizing of staff arrives, the Prosecutor will treat us fairly”. With his experience and regular contact at the continental level, Prosecutor Jallow saw the need for sensitization of national jurisdictions on the importance of international humanitarian law and the adoption of requisite jurisdiction as well as legal structures for implementation. He quite early identified the need for a UN-ICTR legacy in Africa as being important. He hosted the first International Prosecutors’ Colloquium in 2004, bringing together the Prosecutors of the UN tribunals for Rwanda and the former Yugoslavia, the Special Court for Sierra Leone, the Special Tribunal for Lebanon, the Extra ordinary Chambers in the Courts of Cambodia and later the ICC to discuss The Man Behind the Action 11 the challenges and opportunities in international criminal prosecution. With time national prosecutors from Africa and the Balkans were also invited to the colloquium. This annual tradition culminated with the 10th colloquium held in Arusha, Tanzania in 2014. The OTP core mandate revolved around fugitive tracking, investigations of cases, witness protection and the prosecution of cases. As the cases were many and complex, the Prosecutor, upon taking office in 2004, established a strategic planning process involving all OTP staff. This tradition of a clear overall strategy followed up with regular monitoring and recognition of individual staff who excel in performance maintained a strong momentum at the OTP. One key output of the strategic planning process was the restarting of the investigations into sexual violence offences committed in Rwanda during the genocide. The tracking of fugitive indictees has been one of the more challenging tasks of the OTP. Most of the fugitives spread out into the East and Central African region, some taking up arms and leading militias in local wars or against Rwanda. Most were operating out of inaccessible pockets in the forest. Several continued to enjoy political patronage of national politicians. The UN-ICTR, without a mandate to arrest, was largely reduced to tracking and then seeking the support of local police force to make the arrest. Often the fugitives were tipped off before the arrest and disappeared, nullifying months of painstaking legwork by the UN-ICTR tracking team. Prosecutor Jallow’s continuous and personal outreach to governments and the diplomatic community over time substantially improved the situation and cooperation was more easily forthcoming. There are still nine (9) fugitives at large. Whilst Prosecutor Jallow believes that the UN-ICTR’s successful completion depends on the arrest and trial of all indictees at large, his successful efforts at transfer of 6 fugitives to Rwanda is also a personal diplomatic and legal triumph in the face of several refusals by the UN-ICTR Bench to transfer these cases to Rwanda for trial. Undeterred by opposition and negative court decisions, he continued to work with the Rwandan Prosecutor-General to improve the situation of criminal justice in Rwanda until all conditions set by the UN-ICTR judges had been met and the transfers to Rwanda approved. Subsequently a host of other transfers to Rwanda from several countries followed. This is an important milestone for Rwanda and for the cause of international justice when breaches of international humanitarian law are prosecuted at home. I remember the Prosecutor’s calm and tenacious efforts at improving the situation for successful transfer of cases to Rwanda as several of my OTP colleagues complained of the perceived bias and ‘edge’ against transfer to Rwanda. 12 Jaffer

He did not let the frustrations of the moment derail the larger effort of ensuring completion of the OTP’s mandate. In the same spirit he lobbied many other African states to accept the transfer of a case from the Tribunal for trial within the national jurisdiction. Prosecutor Jallow has always been conscious that the fight against impunity on the continent would engender greater awareness and acceptance of international humanitarian law when the principles of subsidiarity and complementarity are respected on the ground. To promote this process, he always ensured that young lawyers and law students from African countries also got an opportunity for internship at the tribunal. He personally or through senior OTP staff members reached out to universities and bar associations on the continent and beyond, always accepting speaking engagements despite a hec- tic schedule. I have met many young law professors who were energized by his presence at their law school and saw him as a role model for young African human rights lawyers. Researchers and the media were also always graciously received at the OTP and facilitated, despite the often heavy demands for time made on himself and OTP staff. It was part of a larger appreciation that the UN-ICTR’s work was important especially for Africa but did not receive adequate attention outside a small circle of experts. In selecting the Prosecutor’s monitors for cases transferred to Rwanda, he also reached out to African legal institutions and experienced legal personnel to shoulder the responsibility. Domestication of IHL in Africa continues to be an important factor in his strategy. An early riser and a family man, Prosecutor Jallow spends his weekends at home, working on policy issues, reading draft pleadings, articles and reviews brought to his attention and generally keeping abreast. He takes daily evening walks and uses the time to reflect. On Sunday afternoons he is often seen walking around the housing estate in Arusha where he resides, stopping by and greeting staff, chatting with youngsters playing football on the streets. At work, the Tuesday morning management briefing session would also start with an ice-breaker, an informal few minutes of what’s going on around the world, especially in relation to international events and legal issues and one could see that he was well informed. A colleague once remarked to me that the Prosecutor made him “feel good”. As a new member of the OTP staff then, he saw the Prosecutor walking alone one Sunday afternoon and picked up the courage to join him. The Prosecutor walked with him, inquired after his health, family and work and actively lis- tened to his views on a particular case the colleague was dealing with. Many a member of staff and several in the diplomatic and legal and human rights community have similar fond memories of their encounters with The Man Behind the Action 13

Prosecutor Hassan Bubacar Jallow. His humanity comes through despite the challenges of life and work. Whilst Prosecutor Jallow quickly admits that the credit for OTP successes belong to the entire OTP staff, one does see that his humane approach to the UN-ICTR mandate, his dignified treatment of staff and encouragement of their efforts and his broader understanding of the challenges at hand in fighting impunity is a key factor. This approach emanates, in my view, from a deeply spiritual appreciation of life and its limitations. Chapter 3 Justice Hassan Bubacar Jallow’s Contribution to the Development of Law in The Gambia: The Supreme Court Years

Ousman A. S. Jammeh

Introduction

This chapter aims to discuss the contributions of Justice Hassan B. Jallow, as one of the pioneer Justices of the first Supreme Court of The Gambia, which was also the country’s first and final appellate court. That court replaced the Judicial Committee of the Privy Council, based in London, England, in 1998.1 It will also analyse the legal and constitutional context in which this court existed. I will argue that despite the best efforts of its outstanding justices, the question remains as to whether that court has fulfilled its broader constitutional mandate despite some initial but notable achievements. I hope that the discussion will enrich ongoing analysis of the past, present and likely challenges that other final, appellate and superior courts may encounter in similar developing jurisdictions. Overall, my goal will be to demonstrate the important contributions of Justice Jallow to this Court in its formative years between 1998 and 2002. Generally, whether by providence or by default, there may be events in the life of a nation, an individual or indeed a society that are momentous but not necessarily profound. Similarly, there are rare opportunities which may present themselves to a society that may impact more profoundly on present and future generations, based on the convictions of an individual or a group of individuals. These could provide an epoch making opportunity largely from the ideals for which a person stood, and ultimately the legacy which he bequeaths to his calling. It is against this background that I will seek to assess Justice Hassan B. Jallow’s contributions to the development of law, justice and

1 Justice Jallow was the only Gambian Justice on this bench, while the rest were two incumbents from the Supreme Court of Nigeria; one retired Justice of the Supreme Court of Ghana, and a Ghanaian Chief Justice of The Gambia, Hon. Justice Felix M. Lartey, who was replaced by a retired Justice of the Supreme Court of Pakistan in 2002.

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_004 Jallow’s Contribution to Development of Law in The Gambia 15 human rights in The Gambia.2 I will limit my discussion to “the Supreme Court years” 1998–2002, despite other possible themes. This is because of the significant contributions and leadership that he provided in that new constitutional court. In so doing, my goal is not to minimize his equally worthy contributions to other causes in the service of humanity, including but not limited to legal, governance, social, spiritual and academic pursuits.3 On the one hand, given the rare opportunity Justice Jallow had in the legal and judicial evolution of The Gambia, during the First Republic, much hope and exemplary leadership was expected from him and his respectable colleagues who did not enjoy the same familiarity with The Gambia’s political and constitutional developments at the time.4 More significantly, he brought that experience from his stewardship of the reform of Gambian laws at the time to better address new challenges of our Second Republican constitutional experiment.5 On the other hand, he did not take undue advantage of this unique position as it were, but, instead he simply provided important legal footprints which resonate with a homegrown jurisprudence that could withstand scrutiny for judicial integrity. Indeed, the normative ideals espoused in his decisions were proven and tested attributes that provided the foundation for a new

2 Other eminent contributors to this publication have extensively discussed other aspects of Justice Jallow’s life and service to the law and society in various capacities. However, it is crucial to revisit the local stage from which his judicial career began noting in particular, that despite the brevity of that career on the national Bench, he has nevertheless left another important legacy that is worth reviewing. 3 In a recent book review of Jallow’s latest book “Journey for Justice” AuthorHouse, Bloomington, Indiana (2012); Professor Abdoulaye Saine, of Miami University, Oxford, Ohio, observed that Jallow omitted to write about his Supreme Court years 1998–2004. Perhaps this paper will fill this gap until such a time that Jallow takes up Saine’s challenge in a future publication. Journey for Justice was Jallow’s fourth book in addition to several articles and speeches. The Law of Evidence in The Gambia, Government Printer, Banjul, 1997; Selected Speeches, Excaf, Dakar, 1998; The Law of The African (Banjul) Charter on Human and Peoples Rights, Bloomington, 2007. 4 His familiar common law background resonates with that of Judges from the Common law tradition, who were willing to discharge their functions as they saw fit but consistent with the juridical principles suited to the interpretation and enforcement of a Constitution. 5 As Attorney General and Minister of Justice for ten years, we saw robust reforms of Gambian law and much statutory reforms which were designed to accommodate what was ostensibly outdated English Legal principles and laws so as to bring them into consonance with the reality of Gambian society. For example, he pioneered the reforms of The Laws of England Application Act, the Wills Act, the Mohammedan Laws Application Ordinance, as well as the Sale of Goods, Companies and Partnerships laws among others between 1984 and 1994. 16 Jammeh constitutional era in which fundamental rights and institutional autonomy were guaranteed and respected. All these were in pursuit of a higher goal of an inclusive democratic culture based on tolerance and judicial restraint of constitutional actors. Evidently, a homegrown Constitution is sui-generis and calls for its own interpretation.6 It is nevertheless consistent with what is regarded as general principles of law within similar legal systems, while underscoring the need for consistency, clarity and acceptable norms and standards of constitutional behavior. Thus, Chief Justice Marshal, reputedly a foremost realist and a pioneer on the US Supreme Court, rightly reminds us about the lurking dangers of unre- strained executive and legislative power, more than two hundred years ago in Marbury v Madison.7 Similarly, he articulated what became an immortal principle on which judicial independence was founded under written constitutions.8 These restatements remain a lasting legacy upon which the American constitutional edifice is anchored, and with it, the role of the Supreme Court as the final arbiter about what is or is not constitutional. Likewise, Professor Akhil Reed Amar offers an analogy that fits this narrative of background principles that should inform the interpretation of written constitutions.

Wherever the written constitution is susceptible to different interpretations, interpreters should hesitate, and do in fact hesitate, to embrace any reading that would violate the clear letter and spirit of these other canoni- cal texts. In short, these texts are constitutional in the sense that they are constitutive – adherence to these texts helps constitute [Americans] as a distinct people among all other peoples of the earth. . . . But, often the written constitution is not crystal clear. Often, different interpretations are plausible, and faithful interpreters must go beyond the text to reach specific conclusions. In doing so, they must remember that they are construing America’s Constitution, and that America stands for certain things – things set forth in other texts that we, the people, hold dear.9

6 It is the consensus that a liberal, broad, purposive and generous construction is called for in interpreting and construing constitutions in order to advance the important remedy of appeal which they are obviously intended to provide. See also: Central Bank of The Gambia v Continent Bank Ltd. [1960–93] GR 335, citing the dictum of Lord Diplock in Jobe v AG Gambia, [1985] LRC (Const. 556). 7 [1803] 1 Cranch 137 US 2L Ed. 8 Remains the basic principle upon which the resilience of modern written constitutions has endowed people through institutional separation of powers the protection of the rule of law and its desired supremacy in constitutional action. 9 A. Reed Amar, America’s Unwritten Constitution, The Precedents and Principles We Live by, New York, Basic Books, 2012, pg. 247–248. Jallow’s Contribution to Development of Law in The Gambia 17

Granted that The Gambian Constitution should be informed by things which Gambians hold dear, it being so characterized as a Presidential system, will require meaningful inter-branch checks even if only to underscore the desired objective of avoiding tyranny and protecting the collective liberty of a sovereign people. In this regard, we are reminded in Marbury that; “it was emphati- cally the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”10 As such, when faced with a similar challenge as foretold in Marbury more than two centuries ago, the Gambian Supreme Court had to be emphatic in order to fulfill the expectations of Gambians, and of what they hold dear in their written Constitution. Otherwise, it stood to be condemned for inaction or otherwise to discharge its role as expected. Therefore, strong intuitive wisdom is required of a Supreme Court that seeks to build and nurture institutions based on principles founded on delegated and divided powers, with inbuilt checks of a legal and political significance for all citizens. It further shows that judges bound by their judicial oaths to uphold the Constitution are best placed to provide that confidence and assurance to ordinary citizens that are aggrieved by the conduct or omissions of state actors, especially where restraint as a constitutional norm is perpetually ignored or at best minimal.11 Fortunately, this was a truly epoch making era in retrospect, given the resolve of a few public spirited citizens who petitioned the Supreme Court; either to enforce the rule of law or to defend the Constitution. Therefore, the outcomes of their individual and collective actions led to decisions based on sound legal reasoning, analogy and a contextual analysis of the Constitution, with consistent and plausible legal interpretations of other laws. Early decisions of the Supreme Court ensured the protection of fundamental rights of citizens including access to justice, unlawful deprivation of acquired rights, and uncon- ventional attempts to amend the Constitution without public participation.12 Whether the hopes and expectations of Gambians were fulfilled or not, is relevant to this discourse. Invariably, the role of the Supreme Court in protecting the rule of law in a constrained democratic space requires a strong and

10 [1803] 1 Cranch 137 US 2L Ed. page 178. 11 Alhaji B. S. O. Jeng, Kemesseng Jammeh, Fasaikou Jabbi, Sait Boye, Hamat Bah, Ousman Sabally are The Gambian equivalents of Marbury, Plessey, Brown, Dred Scott, Miranda, Rowe, Whitney, of the USA, who were pacesetters in the annals of history; and through their able pleaders O. M. E. Sillah, ANMO Darbo, H. K. Sisay-Sabally, Ida D. Drameh, among others, they did not accept the acts or omissions of the Executive and National Assembly as the last word on our Constitution. 12 Constitution of the Gambia Amendment Act 2000, Act No. 5. 18 Jammeh committed judiciary. This is necessary to ensure respect for the conventional values and norms of judicial independence as the foundation of democratic accountability and restraint. Whichever way we wish to characterize the stewardship of the first Supreme Court bench, there is a valid consensus that its vigilance was justified in large measure, even if it was not ultra-activist. But, more than any of its successors, it demonstrated an open but liberal approach in shaping important aspects of Gambian public law at a time when unprecedented levels of intolerance began to emerge. Despite these challenges, the Supreme Court strove to ensure consistency and coherence in its appellate, interpretive and review jurisdictions.13 Unfortunately, its pragmatic and informed decisions gave rise to a new momentum that was all but short lived. What apparently followed these developments saw the early departure of not only Justice Jallow, from this bench, but other peers who shared his convictions about the rule of law and justice.14 But, more significantly, they rose to the task, and to their credit, have set the bar high enough to earn them deserved credibility.15

1 On Locus

As we begin to discuss decisions made by Justice Jallow, it is important to put them in relevant context because courts entrusted with the power to render final and binding decisions must be an exemplar for the lower courts in order to provide guidance, inspiration, and to build trust. In this regard, one can assert that Justice Jallow’s convictions about justice and human rights were articulated and propounded with ease in the lead judgments he wrote or has concurred with during his tenure.16 Therefore, in seeking to lay this important

13 With a few exceptions, the trend in the Court’s powers were relatively consistent with its role as the final appellate court notably in demarche of Kemesseng (No. 1) et al. v AG, Jeng v AMRC, Sabally and Jabbi, among others. 14 Justice Jallow’s trend of rendering decisions which resonate with conventional norms of constitutional interpretation led to his early exit apparently due to executive displeasure. 15 Among others were highly respected Judges like the late Hon. Justice Amoasekyi from Ghana; Hon. Justices Ugweagbu and Abubakar Wali, of the Supreme Court of Nigeria, Justice F. M. Lartey CJ, all of whom demonstrated unprecedented sense of justice and independent thought. 16 Section 127: (1) The Supreme Court shall have an exclusive original jurisdiction – a) for the interpretation and enforcement of any provision of this Constitution other than any provision of section 18 to 33 or section 36(5) (which relate to fundamental rights and freedoms). Jallow’s Contribution to Development of Law in The Gambia 19 foundation, he seamlessly construed, analysed and clarified several legal principles and propositions to give meaning to the 1997 Constitution of The Gambia. As often, with clarity and simplicity he took time to expound on what should inform the rationale for certain acts or omissions and who should bring forth those pleas to the apex court. This approach to the interpretation and enforcement of the basic tenets of a new constitution was informed by the need to consolidate and deepen respect for its supremacy, and more importantly, to fulfill the expectations of citizens for whom all powers are exercised. It is from this vantage point that this new Court began its journey amidst noted uncertainties.17 Thus, in discussing cases below, I will attempt to benchmark the performance of this Court with peers elsewhere. First, one can discern much deference to conventional wisdom and thought, in Kemesseng Jammeh v AG, where Justice Jallow re-echoed the words of Lord Diplock in the Privy Council case of AG (Gambia) v Jobe.18 In construing section 6(2) of the Constitution in Jammeh v AG, Justice Jallow observed:

What is alleged in this case, is a contravention of the 1997 Constitution, not merely a breach of a general public duty or violation of a public right falling outside the four corners of the Constitution. In my view, this is a relevant factor to be borne in mind in dealing with the issue of locus standi. Access to a court of competent jurisdiction, free from the restrictive technicalities associated with the rule of locus standi is a sine qua non for the exercise of a right and a duty to monitor and ensure that [the Constitution] is being complied with; that it is not contravened and that all public acts are consistent with its provisions.19 It is evident that section 6(2) of the Constitution creates legal rights and obligations for the citizens in the maintenance of the constitutional order of the State. The right, and with it the duty, to defend the Constitution is imposed on every citizen. The exercise of such a right or duty must necessarily include the exercise of a civic right and responsibility to seek judicial redress for what the citizen -rightly or erroneously-perceives to be acts of contravention or violation of the Constitution, in the Supreme

17 The transitional claim that severance of ties with the UK Privy Council was overdue, had to be tempered with the caveat that what is expected from a local Supreme Court was a demonstrated courage and willingness to feel that void as with much higher standards as a domestic court. 18 Privy Council Appeal, No. 64 of 1979. 19 United Democratic Party (No. 1) v Attorney General (No. 1) [1997–2001] GR 789. 20 Jammeh

law of the land. The exercise of such a right or the discharge of such a duty is not subjected by the Constitution to any requirement of special interest or injury beyond that of the ordinary citizen interested in upholding the integrity of the Constitution.20

True to character, this court defined and articulated that “the right,” and with it “the duty,” to defend the Constitution is imposed on every citizen. Furthermore, it observed that such a right or duty requires no special interest or injury beyond the intent or desire of the pleader to uphold the integrity of the Constitution. Secondly, in lucid but simple terms, it recalled that this case was “not merely a breach of a general public duty or a violation of public right” per se, but an alleged “contravention of the 1997 Constitution.” This places the analysis in an appropriate context in which respect for the supreme law must be situated. However, despite these observations, the Court declined the injunction and declaratory reliefs sought by the Applicants. That notwithstanding, and just like in Marbury, Jallow’s Judgement in Jammeh v AG nonetheless, provided an indispensable roadmap for effective constitutional adjudication in future cases.21 Similarly, in Kemesseng Jammeh v The Independent Electoral Commission & Attorney-General of The Gambia, the Supreme Court confronted another unprecedented petition by a public spirited citizen for judicial redress of executive and legislative actions especially when the legal consequences of important provisions of the Constitution were being ignored.22 As such, we were reminded that while the amendment powers of the legislative and executive branch are not in contention, they will and could be subject to judicial review provided in the Constitution as its binding authority. To that end, Jallow, JSC, recalls:

20 Ibid., page 703. 21 This is reminiscent of Courts that have laid down principles, which they are willing to accept as the basic standards in subsequent and similar cases. 22 There has been an old syndrome of no legal challenge to public power no matter how perverse or prejudicial it may be to private or public good. The absolutism attributed to a King (Mansa) or (Burr) as a passive trait of power politics was in sync with colonially entrenched practices, gradually giving way to activists’ challenges especially of executive actions and omissions. Among others were Jobe v AG, (1979); Kemesseng Jammeh v AG, (1998); Momodou K. Sanneh v AG, (2004) Jabbi v Koma & AG & Others, (2003); Jeng v AMRC & AG (1999). Jallow’s Contribution to Development of Law in The Gambia 21

Every citizen of The Gambia is competent, subject only to express restrictions and limitations, to seek redress in the courts against alleged violations of the Constitutional order. That competence is vested in the general citizenry is not diminished by one’s status as a legislator. The situation would have been different if the Plaintiff had voted in favour of the measure; for he cannot then be allowed to mount a legal challenge to what he had expressly supported or approved as a legislator.23

2 On Limiting the Right of Appeal to the Highest and Final Court of the Land

In Jeng v AMRC & AG, Jallow, JSC, had a unique opportunity to deal with a petition against a legislation which he was familiar with as a former Attorney General and Minister of Justice in the First Republic.24 At a policy level, the AMRC Act was the subject of legal and constitutional challenges, with different decisions in favour of, or against the State, in both trial and appellate courts.25 Therefore, Jeng v AMRC & AG offers a notable departure from the judicial position adopted by the Gambia Court of Appeal regarding the 1970 Constitution. In the Jeng case, the Supreme Court including Justice Jallow, ruled that Section 23 of the AMRC Act, by seeking to limit an unfettered right of appeal to the Supreme Court of The Gambia, was inconsistent with the 1997 Constitution. Once again, we saw demonstrated judicial creativity and flexibility in dealing with the difficult task of interpretation and construing a legislation, which sought to limit a superior constitutional provision.26 Hence, an important public policy consideration that weighed in favour of abridgment, was reversed by the new Supreme Court. This could be summed up by the willingness of

23 Jammeh v Attorney General, [1997–2001] GR 839 at page 852. 24 Assets Management and Recovery Corporation Act (AMRC), Act, No. 2, 1992 Section 23 was the impugned provision, which was successfully challenged by the Applicant, while the rest of the provisions in the legislation were saved. 25 See also; Alhaji Ousainou Jeng (Trading as ELH.B.O.M.Jeng and Sons) v Gambia Commercial and Development Bank S.C./Civil Appeal. No. 4/1999 where the Supreme Court ruled that Section 23 of the AMRC Act (Act No. 23 of 1992) was not ultra vires section 128 (1)(a) of the 1997 Constitution. 26 It must be stated that Saihou Ceesay and Saidou Sowe challenged other aspects of this legislation but failed under the First Republican Constitution 1970; whilst Jeng chose to attack its original provision limiting the right of appeal to the GCA and not the Privy Council as the highest Court at the time. 22 Jammeh the Court to accept that even if its decisions were “final”, it is not infallible.27 Thus, at the risk of being held to ransom by dogma, pragmatism overrode ideology to give effect to the supremacy of the Constitutional right of access to the Supreme Court. Furthermore, this decision has reaffirmed that an earlier interpretation or construction of an important provision of the Act, which limits the right of appeal to the Court of Appeal, was ultra vires the Constitution of The Gambia 1997.28 All said, this decision is consistent with the warning sounded by the predecessor court, the Judicial Committee of the Privy Council in Jobe29 and Fisher,30 about the need to construe a constitution and more so its fundamental rights provisions, generously and purposefully, and not narrowly and pedantically. On the other hand, the wisdom of this decision obviously runs counter to the earlier policy objective of the AMRC Act i.e. the need for speedy recovery in public debt cases before the courts, especially where the liability of most borrowers was undisputed.31 Nevertheless, although this pyrrhic victory in Jeng did not prevent recovery, its significance lies in the assurance it gave to litigants

27 Just as in Jobe, the Supreme Court recapitulated the same principles of severance in granting the declaratory relief striking out the impugned provision of the controversial legislation. 28 It was the case that the initial right of appeal to the Privy Council was curtailed in the AMRC Act, 1992. This departure shows the liberal approach the new apex court was willing to take in order to give a purposive meaning to the new Constitution’s vested right of appeal to the final Court in any matter affecting the rights of a Gambian citizen. 29 AG (Gambia) v Jobe (1985) LRC (Const. 556). 30 In AG Gambia v Jobe, [PC App.No.64/79] the Privy Council echoed the need to interpret constitutions generously and purposively. Similarly in Minister of Home Affairs v Fisher; it recalled: “A constitution is sui generis, calling for its own principles of interpretation, suitable to its character, but without necessarily accepting the ordinary rules and presumptions of statutory interpretation. A constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language, which has been used, and the traditions and usages, which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take a point of departure for the process of interpretation of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms.” [1979] 3 All ER, p. 26. 31 The former Gambia Commercial and Development Bank, was the precursor institution that gave birth to the AMRC as a quasi-government body for the recovery of non-performing and bad debts of that Bank. The GCDB was the sole development finance bank in The Gambia. Jallow’s Contribution to Development of Law in The Gambia 23 that exhausting the entire appellate jurisdiction of the Courts will resonate with their sense of fairness and justice. Therefore, the inseparability of the impugned provision of that legislation is nonetheless subject to debate. But, giving effect to the Constitution over this legislation on this narrow ground is understandable given the purpose and object of the statute in general. Moreover, it proved that a textualist approach arguably demonstrates a clear attempt not to defeat the superior status of the Constitution that created the appellate courts, and hence, the potential pitfall and absurdity that may arise if interpreted differently.32

3 On Unconstitutional Removal of Constitutionally Protected Office

While the period after July 1994 witnessed a rapid decline in respect for human rights generally, The Gambia also took a tangential deviation from the established norms of the rule of law as witnessed in many post-military states in Africa.33 Invariably, this challenge remains even when the erstwhile soldiers morphed themselves into constitutional regimes. For many observers of the country’s legal and governance transition, the only residue of optimism after the military takeover, remained the statue and calibre of Justices who formed that initial bench of the new Supreme Court in 1998.34 On the other hand, there was the usual apprehension that any effort to assert the conventional standard of independence in that Court may attract disapproval from certain quarters. These fears were confirmed as subsequent decisions dramatically began to turn the status quo from one of a strong and promising beginning, to one which became highly constricted.35 Furthermore, this legacy should be contextualized as it was rooted within a strong, but innate personal, legal and philosophical ideal of justice, freedom

32 As stated elsewhere, the AMRC Act was meant to address a malaise in terms of private sector attitudes to commercial banking which was pervasive and abusive of the extreme forbearance of the defunct GCDB. See also Jammeh, O. The Constitutional Law of The Gambia, 1965–2010, AuthorHouse, Bloomington, 2011, at pages 61–62. 33 Examples such as, Central African Republic, Niger, Republic of Congo, DRC, Togo, Uganda and Sudan offer examples of intolerance and the failure to give opportunity for oversight of public and constitutional bodies. 34 Judges from the Federal Supreme Court of Nigeria, the Supreme Courts of Ghana and The Gambia, were readily suitable to adapt and interpret the new Gambian Constitution based on acceptable principles of interpretation that were liberal, flexible and broad. 35 We saw with much apathy the changes in the reaction of the executive branch to the decisions of this nascent Court especially those considered to be politically contentious. 24 Jammeh and the rule of law, which informed decisions of that bench. Evidently, some rare, if not, unexpected developments emerged in our effort to re-establish a continuum of a fragile democracy from the First Republic.36 Therefore, whether by design or by co-incidence, this transition also offered the Supreme Court an opportunity to respond to the challenges of addressing the efficacy of the new dispensation to the aspirations of sovereign citizens of The Gambia. As will be demonstrated, a constitution that fails to meet these expectations is bound to elicit critical views or legal challenges. In this regard, the Supreme Court also had occasion to pronounce on the issue of executive removals of individuals from protected constitutional offices. Archbishop Solomon Tilewa Johnson, and Imam Saja Fatty, were members of the Independent Elections Commission of The Gambia, and their purported dismissals from that office led to a constitutional challenge before the Supreme Court. In that case, the Supreme Court took a different approach in that it rejected the applicants’ right to contest the removal of the two officials and their request to set aside the impugn decision as an unconstitutional act. Among other reasons, the Court noted that the applicants were not the aggrieved parties and the new appointments were validated by the legal presumption of regularity. However, by acting contrary to procedural provisions in the Constitution, the purported removal of the two officials from the Electoral Commission by the executive, justified this important challenge by Hon. Kemesseng Jammeh before the Court.37 Evidently, this case offers another plausible context that despite being pragmatic and liberal, this bench was not activist by orientation. Essentially, this case textual approach could have ended differently if the two dismissed officials directly petitioned the Supreme Court. Indeed, the lurking dangers that flow from this decision have seemingly opened a floodgate through which the executive branch continues to exercise its power of removal from protected Constitutional offices, and more so, in the judiciary and other constitutional bodies in disregard of constitutional procedures.38

36 Challenges, which ultimately undermined judicial independence and security of tenure on the higher bench, were indeed a source of much concern and trepidation. Events that continue to undermine the independence of the judiciary reached a level that earned The Gambia less favourable democratic credentials, with the conviction of a former Acting Chief Justice, in 2014 and a former Attorney General who was also a High Court Judge. 37 Little or no regard is paid to the due process requirements and the procedure for removals from these constitutional offices, which have become the norm with no new legal challenges being mounted perhaps owing to the only decision of the Supreme Court thus far. 38 The danger that a declaratory judgment may have averted may be academic now, but the real consequence, is a repeat spate of removals from constitutional offices without recourse to the Constitutionally-prescribed procedures and other acceptable practices, Jallow’s Contribution to Development of Law in The Gambia 25

4 On Retrospective Denial of Vested or Acquired Rights

In yet another important ruling, the issue of judicial protection of acquired rights from legislative intrusion was dealt with by the Jallow bench. In Ousman Sabally v IGP & Attorney General of The Gambia,39 the Supreme Court reminded us about its jurisdictional competence in the protection of fundamental rights provisions of the constitution, against legislative and executive onslaught via the Indemnity (Amendment) Act.40 In resolving a preliminary objection by the Inspector General of Police, and the Attorney General, for lack of jurisdiction of the High Court to entertain this suit, the Supreme Court acting in its interpretive and referral jurisdictions, had to settle an issue of fundamental constitutional significance, namely, the retrospective deprivation of an acquired right.41 This arose from the effect of a purported retrospective amendment of the Indemnity legislation by nullifying all suits commenced before the High Court arising from the events of April 10 and 11, 2001, as well as any subsequent suits from being filed against the State.42 Over those two days, security forces reportedly killed a journalist and about fourteen unarmed school children who held demonstrations over the fatal torture of one of their colleagues in state custody. With deep intuition, the Court navigated through a difficult situation but unanimously upheld this submission under its interpretation and referral

thus weakening the efficacy of other complementary branches of Government. These include office of Judge, Members of the Judicial Service Commission (JSC) and Public Service Commission (PSC) the IEC, Auditor General and the Speaker among others. Holders of all these various offices have been repeatedly subjected to summary dismissal by the executive branch without regard to their normative constitutional protection. 39 Civil Ref. No. 2, [2001] SC. See also: [1997–2001] GR, SC page 878. The High Court had to defer to the Supreme Court to determine if indeed it could proceed with the suit in the face of the preliminary objection raised by the State. 40 Indemnity (Amendment) Act, [2001] (Chapter 23.01) Revised Laws of the Gambia. [2012] 41 It was implicitly the intention of the legislature to deprive the Applicant of an acquired right. This runs counter to both domestic and international human rights law especially the ICCPR and the African Charter on Human and Peoples Rights (Banjul Charter). Section 127(2) of the Constitution confers the referral jurisdiction on the Supreme Court which is also governed by Rule 61(3) of the RSC, 1999. Sabally, the applicant was a senior school teacher, who was allegedly assaulted by members of the security forces, for which he brought an action for redress. 42 The end intended was achieved because the Indemnity (Amendment) Act, succeeded in part in preventing new suits from being instituted in the High Court against the State by victims or any affected persons as a result of the killings or injuries sustained in the events of April 10–11, 2000. 26 Jammeh jurisdiction under section 127(1)(b) of the Constitution. Justice Jallow JSC reaffirmed that:

Access to an independent and impartial court for the determination of one’s rights and obligations constituted a fundamental human right lying at the heart of enforcing other rights. Where, as in the instant case, a party had exercised the right and instituted legal proceedings, he had a vested right to continue with such proceedings. Any retroactive legislative measure purporting to nullify his right to do so, would be a contravention of the prohibition against retroactive deprivation of vested rights as provided in section 100(2)(c) of the 1997 Constitution. Consequently, the application of the Indemnity (Amendment) Act, 2001 (No 5. of 2001), to terminate the legal proceedings instituted by the plaintiff and pending at the time of the enactment, would constitute a contravention of section 100(2)(c) of the 1997 Constitution and exceed the competence of the legislative authority to the extent that the plaintiff would be deprived of his vested right to continue with such proceedings.43

Again, he reminded us about the importance of “access” to a court of law, which is “independent” and “impartial” as central to the preservation of fundamental rights. Hence, a person that seizes a court with these attributes acquires a “vested right”. The underlying principle here is that no judicial norm of constitutional interpretation can validate an assumption to the contrary i.e. that vested rights can be taken away by subsequent legislation; especially where the state is the alleged tortfeasor. To state otherwise, could provide the state a licence to change the rules in the middle of the game as it were, to suit its partial interests. On the other hand, it strengthens the confidence of the ordinary litigant in the impartiality of this Court as the final arbiter against the encroachment of a more powerful contender, the state.44 However, while the new legislation’s prohibition of prospective legal suits was upheld, it was adjudged unconstitutional to the extent that the same legislation sought to nullify a case that was filed before the amendment was presented to parliament.45 Invariably, the consequences of such an action

43 Civil Reference No. 2/2001 SC. See also: [1997–2001] GR, SC page 886. 44 In this case it was both the Executive and Legislative Branch which sought to enact a law ex-post facto, with the objective of nullifying the case out of existence because of the apparent inconvenience of its factual background. 45 This was a pragmatic application of the Constitutional principles, which are consistent with the important human rights norms regarding the treatment of aggrieved citizens. For example, Article 7 of ACHPR. Jallow’s Contribution to Development of Law in The Gambia 27 would be far reaching in terms of executive and legislative accountability if that aspect of the law had stood. Admittedly, while the Supreme Court cannot prevent the legislative branch from exercising its power of amending the law, it has nevertheless interpreted and construed the amending Act restrictively and purposefully in the light of a case that had to be saved.46 Sadly, it took nearly a decade to hear the main suit on the merits by the High Court despite an early intervention of the Supreme Court.

5 Disregarding the Amendment Provisions of the Constitution

Admittedly, the opportunity that Justice Jallow had during the early years of his momentous legal career, and the manner in which he acquitted himself in a more tolerant democratic environment before 1994, offers a striking contrast with the challenges of a more restricted one in which he served as a judge of the country’s highest court.47 Indeed, before 1994, his different roles as state legal advisor, prosecutor, policy maker, and political actor, equally contrast with the role he assumed later as a Justice of the Supreme Court. It is remarkable because for the first time since the introduction of the English legal system in The Gambia more than a century ago and indeed, in the country’s post-independence history, the powers of a final appellate court were localized.48 By all accounts, weaning the Gambian judiciary from the Judicial Committee of the Privy Council was both a profound and certainly important constitutional decision. Whatever the motivation, there is still much trepidation

46 The haste, with which the President of the Republic tabled such amending bills before the National Assembly with a “Certificate of Urgency” signed, bore testimony of the intent with which the promoters seek to realize their objectives at the detriment of the aggrieved citizens. 47 The raging debate between the textual and purposive interpretive Judges, i.e. the literal and activists’ schools, continues to date and as such, we saw in Justice Jallow’s Supreme Court bench the demonstrated willingness to do both. They have risen to the occasion when necessary to ensure justice is done and that the message is clear, concise and fair to the parties and litigants who are determined to protect the Constitution and the rule of law. 48 The Constitution of The Republic of The Gambia, 1997 section 120 created a Supreme Court that replaced the old trans-national and pan-Commonwealth Appellate Court, The Judicial Committee of the Privy Council, quintessentially a British Court composed of largely Lords of Appeal in Ordinary and members of the British House of Lords. (A few judges from the Commonwealth or outside the UK, are co-opted to the Privy Council from time to time.) 28 Jammeh about the rule of law and independence of the judiciary.49 In other words, the challenge of maintaining and building upon the legacy of the Privy Council for judicial independence, became a justifiable cause for concern and for an enduring culture of maintaining human and people’s rights in the home of the Banjul Charter.50 Consequently, in another seminal decision, this bench reaffirmed faithful- ness to the supremacy of a written constitution when Parliament acted in disregard of its provisions in pursuit of a lawful amendment of the Constitution. Thus, in Kemesseng Jammeh v Attorney General (No. 2), the Plaintiff successfully challenged the constitutionality of an amendment to section 1(1) of the 1997 Constitution and paragraph 13(1) of the second schedule thereto.51 The amendment which sought to declare the Republic of The Gambia, a ‘secular State’ in contravention of the procedure set out in section 226(4) relative to ‘entrenched clauses’ was nullified by this Court. The main contention of the Applicant was that the amendment process was in contravention of section 226(4) of the Constitution, which provides for a referendum to effect any changes to that provision. As an entrenched provision, a proposed amendment would be incomplete without a public referendum to validate the National Assembly’s enactment. Once again, the Jallow bench demonstrated judicial leadership when it struck down the impugned amendment. However, in what marked the onset of executive intolerance and indifference to judicial decisions in the country, the amendment was incorporated and became an integral provision of a new reprint of the Constitution of the Republic of The Gambia.52 Unfortunately,

49 The Privy Council has exhibited an unrivalled sense of independence from the political and often turbulent environment in much of Africa, Commonwealth Caribbean, New Zealand and South East Asia, where it exercised a final appellate jurisdiction for many decades during and after political independence from Britain. These include Singapore, Malaysia, Brunei, Fiji, Mauritius, Seychelles and The Gambia, which was incidentally the last jurisdiction in mainland Africa to sever ties with the Privy Council. 50 The Supreme Court was vested with the powers of a final appeals court in addition to other powers of interpretation and enforcement of the new constitution. See: Sections 127 and 128 of the 1997 Constitution for details. 51 Supreme Court, Civil Suit No. 4/2001, pages 7–19. Section 1 of the Constitution reads:”The Gambia is a sovereign secular republic. Section 226 (4) reads: “A Bill for an act of the National Assembly altering any provisions referred to in subsection (7) shall not be passed by the National Assembly or presented to the President for assent unless: . . . (c) The Bill has been referred by the Speaker to the Independent Electoral Commission and the Commission has, within six months of such reference, held a referendum on the Bill. 52 The 2002 “Reprint of the Constitution of the Republic of The Gambia” contains this impugned provision declaring The Gambia a secular State and further restating a preamble Jallow’s Contribution to Development of Law in The Gambia 29 this trend of indifference to decisions of the Supreme Court as a vital oversight body of the legislative and executive branches, marked the beginning of yet another phase in constitutional accountability.53 Logically, this case mirrors Kemesseng v IEC & AG, because even assuming the Court had granted the relief against the decision that removed the new chair of the Electoral Commission by a declaratory judgment in favour of the Applicant, compliance with the decision is not assured. Invariably, it was imperative then and now, for the consolidation of democracy and constitutional accountability in The Gambia, to have a Supreme Court that can rule on non-compliance and other advertent infractions by the other branches of Government. To that end, this policy and attitudinal shift has paradoxically navigated The Gambia into unchartered waters, wherein the executive branch continues to not only routinely ignore judicial decisions, but even interfere with the tenure of Judges and Magistrates without adherence to constitutional norms. This situation has significantly weakened the constitutional protection of judicial tenure of all superior court judges; and the required independence of the apex court.54

6 On Non-compliance with the Constitution

In Jabbi v Koma & 2 Others, the Gambian Supreme Court took another significant decision by granting a declaratory relief to a petitioner who alleged that the incumbent of a Constitutional chieftaincy office in a local government, albeit in “an acting’’ capacity, was holding office unconstitutionally.55 Indeed, while this decision had the effect of unseating the acting appointee, the elected replacement, was subsequently dismissed by the same executive that acquiesced to the Supreme Court’s judgment. In the lead judgment, Jallow JSC reaffirmed the need to respect and comply with imperative constitutional obligations by the executive branch.56

that states the military takeover of July 22 1994 was welcomed and endorsed by the Gambian people among others. 53 Ibid. 54 Amendments to the 1997 Constitution and in particular the mutually inconsistent provisions contained in section 141(2)(c) and 141(4) read together with section 120(3) appears to reinforce the powers of the executive to resort to removal of superior court judges without following due process, but often by executive fiat. 55 Civil Application, No. 4/2003 [Supreme Court]. 56 Civil Suit. No. 4/2001(SC). Lead judgment of Jallow, JSC, at pp. 1–7, pp. 7–9. 30 Jammeh

Consequently, in Jabbi, the Court sought to delimit the scope of disregarding clear constitutional provisions by executive fiat. The reaction of the executive branch to this decision, among others, shows the growing reluctance of the former to take the Supreme Court’s decisions as the last word on the interpretation of the Constitution. Following closely, in Sait Boye v AG & IEC, the same bench of Supreme Court57 rejected the applicant’s requests for declaratory and other reliefs in terms of Jabbi’s case. However, the immediate reaction of the executive and legislative branch to these landmark decisions was a swift Constitutional amendment, which permanently denies this important chieftaincy office of elective choice among others.58

Conclusion

From the foregoing, it is evident that the opportunity provided by this unique momentum was that the new Supreme Court has demonstrated that they could maintain the standards, if not raise them to new heights. It thus fell upon Jallow and his colleagues to set the standards for a truly resilient homegrown and autochthonous jurisprudence that could give desired meaning to that momentum.59 In this regard, there was a reasonable ground for comparison with the US Supreme Court which had judges of different persuasions and ideological orientation from its early days and continue to do so today. Yet, this diversity of orientation provided a resilient norm upon which timeless values and principles are preserved to ensure the protection of the superiority of that Constitution by the US Supreme Court.60 Among its pioneer judges were ideologues that were described as realist, positivist, liberal or activist.61 Yet, notwithstanding these differences, their individual and

57 Coram: Lartey, CJ, Jallow, Amoasekyi, Wali, Ogwuegbu, JJSC. All other Justices were from Ghana and Nigeria with Justice Jallow as the sole Gambian in this Court. 58 Constitution of the Republic of The Gambia (Amendment) Act. No. 6 of 2001. 59 This is an important task because the court must fulfill certain expectations especially in its mission to truly respond to the peoples aspirations for freedom, liberty, and accountable, consultative and participatory governance; all in pursuit of their legitimate interests as citizens. 60 Marbury v Madison, 5 U.S. 137 (1803); Cohens v Virginia 19 U.S. – 264 (1821) Plessy v Ferguson, 163 U.S. 537 – 1896; Brown v Board of Education, 347 U.S. 483 (1954), Miranda v Arizona, 384 U.S. 436 (1966), Whitney v California, 274 U.S. 357 (1927); Abrams v United States, 250 U.S. 616 (1919), New York Times Co. v Sullivan, 376 U.S. 254 (1964) Roe v Wade, 410 U.S. 113 (1973). 61 Among its notable ideologues were Justice John Marshal, Oliver Wendell-Holmes, Louis Brandies, Benjamin Cardoso, Joseph Story, Hugo Black, and Earl Warren. Although the Jallow’s Contribution to Development of Law in The Gambia 31 collective legacies have proven resilient in protecting and preserving the core values and principles of the US Constitution over the last two centuries.62 To the credit of such Judges, it has been demonstrated that the rule of law can be an all-time defence against tyranny; and because the US Constitution bears testimony to the fact that law, justice and freedom are inseparable values upon which intolerance as a human trait can be tempered or subdued. Arguably, the standard and quality of decisions of this pioneer Court were unassailable. Whether the ratio decidendi or the obiter dicta expounded or propounded, will be adopted by subsequent benches of the Supreme Court, is a matter for debate. Significantly, the visible checks and restraints that the Supreme Court provided within this short period, were followed by a notice- able shift in policy focus by succeeding benches with mixed, if not subdued judicial orientations.63 One outcome of these developments was at best a strict

Declaration of Independence stated that “All men are created equal,” but due to the institution of slavery, this statement was only grounded and given meaning in laws of the United States after the Civil War in 1865, when the Thirteenth Amendment was ratified to finally put an end to slavery. Moreover, the Fourteenth Amendment (1868) strengthened the legal rights of newly freed slaves, that no state shall deprive anyone of either “due process of law” or of the “equal protection of the law.” Finally, the Fifteenth Amendment (1870) strengthened the legal rights of freed slaves by prohibiting states from denying anyone the right to vote on account of race. Despite these Amendments, African Americans were often treated differently than whites or Caucasians in many parts of the country, especially in the South. In fact, many states enacted segregation laws based on race, “separate but equal” also known as Jim Crow laws. Sadly, it was not until 1892, when an African- American named Homer Plessy, refused to give up his seat to a white man on a train in New Orleans, as required by Louisiana State law. For this action, he was arrested. Plessy, contending that the Louisiana law separating blacks from whites on trains violated the “equal protection clause” of the Fourteenth Amendment to the U.S. Constitution, decided to fight his arrest in court and all the way to the United States Supreme Court in 1896. By a vote of 8-1, the Supreme Court ruled against Plessy. In the case of Plessy v Ferguson, Justice Henry Billings Brown wrote the majority opinion. However, African-American Civil rights defiance finally won with Rosa Parks refusing to give up her seat on a Montgomery bus on 1 December 1955. 62 India offers a similar example with judges who have shown strong commitments in evolving a relevant homegrown jurisprudence consistent with the socio-cultural diversity of India since the birth of the Union in 1947. 63 In cases that reached the Supreme Court subsequent to 2002, notably UDP, NRP, Hon. Momodou K. Sanneh v AG, [SCC Civil Suit No. 1/2007] a suit challenging an amendment of section 194 of the Constitution, we saw serious setbacks in the initial phase of this case and the apparent delay in considering its merits. However, when it was in fact considered, the Applicant’s Counsel drew much criticisms from the bench of the Supreme Court for lack of due diligence notwithstanding the former Chief Justice’s own contribution in 32 Jammeh constructionist bench in the apex court, or indeed one whose judicial orientation is best characterised as positivist.64 Furthermore, these initial setbacks unfortunately earned the country much unfavorable headlines on judicial independence and the rule of law as democratic norms, upon which our adopted system of government is grounded. By so doing, they ignore the historical and domestic contexts on which the independence of the Gambian judiciary was rated both regionally and globally before 1994.65 Judging by decisions with constitutional and human rights undercurrents, however, it became evident that the resolve of this pioneer bench to render justice consistent with the highest standards of constitutional accountability and oversight in an emerging democracy was undented. Furthermore, our reflections on the performance of this court cannot be divorced from principles which attracted its favorable disposition in its interpretation, enforcement and construction of the Constitution of The Gambia “broadly and purposively.” Indeed, in Jobe v AG Gambia, the predecessor Court, the Privy Council, adopted this principle with much ease.66 Again, support for this approach is found in decisions of several Commonwealth Courts.67 Moreover, that resolve was built on the conviction that a constitutional democracy should be underwritten by sound and settled legal principles if the rule of law is to have any significance for a largely alienated citizenry.

avoiding the issues for determination when the suit was first filed. This was not the case in Sallah & 3 Others v Clerk of the National Assembly & AG, [SCC No.1/2005 which was considered with much dispatch by the same bench. 64 Although the decisions rendered were generally respected as the best outcomes, yet this court left open the issue of the executive branch’s disregard of the clear constitutional provisions for removal of the members of the Independent Electoral Commission, which became the harbinger of repeated actions in disregard of the stipulated constitutional provisions in respect of judicial officers and other protected offices. 65 IBA (International Bar Association) UK report entitled “Under Pressure” a report on the Rule of Law in The Gambia, 2006. At www.ibanet.org/Document/Default.aspx. See also: EU 17 point plans for good governance as a conditional blueprint for bi-lateral dialogue with the European Union in 2013. 66 The Gambia Court of Appeal earlier endorsed this principled position in Central Bank of The Gambia v Continent Bank Ltd, (1960–93) GR 335 at page 345. 67 The Jobe decision has received judicial approval in many Commonwealth jurisdictions as a yardstick for construction and interpretation of Statues, as well as in judicial review of fundamental rights of Constitutional acts and omissions. See: AG Hong Kong v Lee Kwong- Kut [1993] A.C. 951, 9666; DPP, Ex Parte Kebeline and Others [1999] UKHL 43; [2000] AC 326; King v AG of Barbados (1994) 30 Barbados L. R. 189; Shelley Bryan v AG of Guyana & Commissioner of Police, (C.A. No. 88/2000). Jallow’s Contribution to Development of Law in The Gambia 33

In addition to offering us the desired narrative, this bench has also succeeded in stirring unprecedented reactions through spontaneous and often large-scale amendments of the new Constitution due to the rising trend of successful challenges of executive acts and omissions. Although this trend has significantly abated, it is safe to say that the journey of consolidating democracy through inter branch checks and the efficacy of an independent judiciary remains a daunting challenge. Subsequent events have sadly continued to cause major setbacks for the enforcement of human rights norms in The Gambia. Thus, the words of Lord Wilberforce in Fisher and Lord Diplock in Jobe bear eloquent testimony about the manner of construction and interpretation of our written Constitution. All said, a court that shirks its responsibility as a final appellate tribunal can hardly earn the respect of the legal profession or its judicial peers, in defending the values of human rights.68 In this regard, we are reminded by Lord Wilberforce:

These antecedents . . . call for a generous interpretation avoiding what has been called the austerity of tabulated legalism, suitable to give to individuals the full measure of the fundamental rights and freedoms referred to . . . Respect must be paid to the language, which has been used, and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origins of the instrument, and to be guided by the principles of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences.69

Evidently, Justice Jallow and his very eminent judicial colleagues provided relevant visibility to the new Supreme Court; they also developed a roadmap for a co-evolving local and conventional jurisprudence that seeks to uphold liberty,

68 The finality of the decisions of the Supreme Court of The Gambia, as regards issues touch- ing on fundamental rights and upholding the Constitution are inextricably linked to regional and international instruments such as the ICCPR, the Universal Declaration on Human Rights and the African Charter on Human and Peoples Rights in particular Article 7 of the latter. 69 This was the rationale that underpinned the subsequent trends of interpreting Commonwealth Constitutions, which by consensus do not admit of narrow and restrictive interpretation. See for example; New Patriotic Party v AG Ghana, {1993–94} 2 GLR, 35 at page 168. Kuffour v AG Ghana, [1980] GLR 637, SC. 34 Jammeh freedom, and emancipation from indignity as values which sovereign people hold dear. Together, they strove to shape a written Constitution that is in sync with the collective aspirations of Gambians for a new beginning, if not, a continuum in the consolidation of the rule of law.70 However, as Sir Mathew Hale, a respected English Judge, described an essential attribute of judicial office in words that are now immortalized and even as mortality beckons for some members of this pioneer bench of Gambia’s Supreme Court, we can state that it has left us a proud and respected legacy:

That popular or court applause, or distaste, have no influence upon anything that I do in point of distribution of justice. That I not be solicitous of what men will say or think, so long as I keep my self exactly according to the rules of justice.71

70 Resort to the quick fix removal procedures under section 141 of the Constitution of The Gambia, of Judges and Chief Justices became a norm, which ultimately signaled to judges of all the superior courts that is no longer business as usual. The provision contrasts sharply with section 120 of the Constitution, which guaranteed the tenure of judges from interference or control from any person or authority. 71 J. P. Stevens, A Supreme Court Memoir, Five Chiefs, Little Brown and Company, New York, 2001, page 125. The author is a retired Justice of the United States, Supreme Court, quoting Sir Mathew Hale. Justice Amoasekyi of Ghana, a member of this bench of the Supreme Court of The Gambia, died a few years ago. chapter 4 Towards Reviving Legal Professionalism and the Need for Ethical Leadership

Aboubacar Abdullah Senghore

1 Introduction

The career and achievements of Hassan Bubacar Jallow provide a template for what the public role and responsibility of the legal practitioner ought to be in modern day Africa. Certainly there is a need for sound legal education and training; however, this must be combined with a commitment to public service whether in Government, academia or civil society, as well as unflinching devotion to defend the legal values and promote and protect legal professionalism. The role of legal science and modern African legal educational institutions in comprehensively addressing the continent’s emerging problem of the decline in legal professionalism and ethical leadership is of vital importance. This is particularly so given the call for universal respect for human rights, fundamental freedoms and human dignity both from African civil society and the international community. While these ideals have been taught in legal professional courses over the decades since independence, the pervasive view of corrupt African judiciaries, the use of judges and lawyers as instruments of political repression and violation of human rights, question the effectiveness of, if not the very essence of legal science and practice. This essay seeks to argue that one possible explanation for the current state of affairs in some African judiciaries, is the lack of adherence to norms of legal professionalism and good ethical behaviour. These twin principles are not only sine qua non to the administration of justice, but are also vital to the successful discharge of a broader public service role for lawyers, whether as state officials or in civil society. Similarly, ethical values are important to core activities such as teaching, research and scholarship within academic institutions. In the following pages, I will discuss the role of ethics and professionalism in the discharge of lawyers’ functions and how these values should form a core part of legal training in law faculties across the continent. In doing so, I will seek to highlight the role that Hassan Bubacar Jallow has played in the establishment of the Law Faculty at the University of The Gambia and the development of the legal profession in his home country.

2 Legal Education and the Legal Profession in The Gambia

Despite attaining political independence from Britain on 18 February 1965, the Gambia maintained many important links with its former colonial master. One such link has been the application of the English common law system and various statutes of general application that were in force in England on 1 November 1888, as part of the Laws of The Gambia, together with customary law and aspects of Muslim Islamic law to govern certain personal matters including marriage, divorce and inheritance. In addition, from independence in 1965 to adoption of the Second Republican Constitution in 1997, the Privy Council in London served as the highest court of appeal for the Gambia. For most of its post-independence history, the Gambia has maintained these links not only with Britain, as the former colonial power, but also with other countries in West Africa who shared with it, the common-law legal tradition. The most important manifestation of this was that the country continued to recruit Judges and Magistrates from sister countries such as Ghana, Nigeria and Sierra Leone to serve in its courts. To many observers, the composition of The Gambia’s appellate courts since independence, with judges drawn from these various West African jurisdictions, closely mirrored the erstwhile West African Court of Appeal that heard civil and criminal appeals from The Gambia, Ghana, Nigeria and Sierra Leone in the late 1960s and early 1970s. For the Gambia, the recruitment of foreign judges was due to the limited number of qualified Gambian lawyers who were willing to accept judicial appointment or other careers in the public service, whether as state counsel, magistrates or judges. However, the representation of these various nationalities at various levels of judicial service in the country also had the effect of enriching the local jurisprudence with insights from the judges’ home countries. As already discussed elsewhere in this volume, Hassan Bubacar Jallow served as Attorney-General and Minister of Justice in The Gambia from 1984–1994, a period during which he advocated for and led many initiatives to promote legal education, increase indigenous capacity in law, and develop the legal profession in the country. These initiatives seemed to have been borne out of a firm belief that by increasing opportunities for Gambians to receive legal training at home, there would develop a critical mass of qualified Gambians who could assume functions in the public sector legal and judicial services. In this regard, during his tenure as Attorney-General, Hassan advocated for a shift in Government policy by which legal training was included among the list of priority areas for Government-sponsored training. By this policy, The Gambia Government awarded scholarships to qualified young Gambians to study law at Universities in West Africa, especially Sierra Leone and Nigeria. Legal Professionalism and the Need for Ethical Leadership 37

The sponsored candidates each signed a bond to serve in the public sector for a specified number of years, upon their qualification. Through this policy, the Government was, by 1994, able to substantially increase the size of the Bar, as well as the number of Gambian judicial officers at both the Magistrate and High Court Benches. In the early 1990s, there was a strong commitment on the part of the Government to not only increase the number of trained and qualified Gambians in the legal profession, but also to enhance access to justice and the effectiveness of the justice delivery machinery. In this regard, a number of initiatives were introduced by the Government, through the Ministry of Justice. For example, lawyers from the Ministry of Justice provided training in basic criminal law, criminal procedure and evidence to members of the internal security force, the Gendarmerie. This was important because in addition to the power of the Inspector General of Police to initiate prosecutions for minor traffic and criminal violations, the Commander of the National Gendarmerie also enjoyed prosecutorial powers over minor infractions including drug offences, larceny, various types of assault etc. Given the limited number of lawyers at the public bar, the training in criminal law and procedure offered to these law enforcement officers, and their ability to prosecute minor offences before the subordinate courts, relieved much pressure from an otherwise understaffed and overworked state law office. While the training of law enforcement officers provided initial building blocks for in-country training in law, the first structured legal training program for civilians was also launched under Hassan’s leadership. The Gambia Technical Training Institute (GTTI), in collaboration with the Ministry of Justice, and the Gambia Bar Association, provided training for qualification towards the United Kingdom Institute of Legal Executives programme (ILEX). Under this initiative, staff of the Ministry of Justice, members of the private Bar, and judges, volunteered to teach courses in constitutional law, the law of evidence, criminal law, and company law. Success of the ILEX programme, and the level of interest it generated among various segments of Gambian society, led to the inauguration in 1993, of the national diploma in law programme, also run out of the GTTI. A good number of candidates, including civil servants, teachers, politicians, and bright young secondary school graduates who were aspiring to study law, registered for both the ILEX programme and the Diploma in Law. Clearly, by the mid-1990s, a foundation had been laid for further development of indigenous legal training in The Gambia. In view of the success of the above short-term training programmes, the level of interest that people had shown in receiving legal education, and the obvious need to increase qualified manpower in the public law sector, the Ministry of 38 Senghore

Justice requested the Personnel Management Office to seek funding from the Commonwealth Fund for Technical Cooperation (CFTC) for a consultancy to examine the need and the possible institutional framework for legal education in The Gambia as well as identify the resource requirements for such an undertaking.1 In its report, the consultant recommended that the Government set up a non-residential Law School to provide training towards both the academic degree in law and a professional qualification within a four-year curriculum. The consultant further suggested, considering that the country did not have a university at the time, that the law school should be affiliated to a foreign university. As plans for the establishment of a law school were underway, the Gambia Government also requested the Commonwealth Secretariat to review and advise more generally on the feasibility of higher education in The Gambia, especially with regards to the establishment of a university. These initiatives laid the groundwork for the establishment of both the University of The Gambia in 1999 and the Faculty of Law, of which I had the honour and privilege of serving as first Gambian Dean. I have no doubt that establishment of both the University and the Faculty of Law would hardly have materialised but for the leadership and vision of people such as Hassan Bubacar Jallow. I am therefore pleased to offer this essay in honour of his contribution to the development of legal education and the legal profession in The Gambia. In the remainder of this chapter, I seek to show that while it is important and inevitable to instruct aspiring lawyers in legal doctrine so as to enable them discharge their duties to clients, an often neglected but equally important aspect should be the provision of training in legal ethics and the promotion of legal professionalism. I further argue that legal ethics and legal professionalism must be integrated into every law school curriculum, as Law Faculties seek to produce professionals imbued not only with knowledge and skills to discharge everyday lawyers’ functions, but the professional and ethical compass required to perform leadership roles in the wider context of national and international society. In making this suggestion, I challenge the extant paradigm by which training in ethics and professional skills for lawyers, is left to the professional (Bar or Solicitors’) stage of training, rather than being incorporated into the main degree programmes.

3 The Curriculum of the Modern African Law Faculty

The modern law faculty must strive under challenging circumstances to graduate a critical mass of legal scholars and practitioners who would appreciate

1 Hassan B. Jallow, Journey for Justice 275 (AuthorHouse, 2012). Legal Professionalism and the Need for Ethical Leadership 39 and respect their public role and responsibility, which include upholding legal values and professionalism. According to Professor Kim Economides, a comprehensive and useful education in Law must include sound grounding in the basic legal doctrine. Thus, in his opinion, the curriculum of the faculty of law regardless of geographical location and ethical background, must cover the following areas:

public law, both constitutional and criminal; private law, concerning obligations, persons and property and at least some elements of commercial law; also preferably through special courses dedicated to some, elements of legal history and of the philosophy and sociology of law. More important than the detail of any particular analysis of the texts of the law; understanding of texts in the light of underlying problematic aspects of law; and a readiness to enquire into the contexts in which law operates. Also, there should be a firm awareness of law’s character as a practical discipline; this includes an awareness of legal practice and its requirements, but is not exhausted by that. In the broadest sense it requires a grasp of law as a domain of practical reason.2

In addition to the need to inculcate in students the basic legal doctrine, there is an equal need to go beyond the basic legal doctrine. In this respect, there is a need to create professional awareness and commitment at the elementary level of legal education. African law faculties must therefore accept some responsibilities that reach beyond transmitting technical competence and promote awareness of public and community interests that transcend servicing the legal needs of fee-paying private clients. This can be achieved not only through traditional lectures based in the classroom, but also through working outside the formal environment such as running special programmes including clinical legal education, pro bono and community legal services outside the physical boundaries of the law school. The point is that a new understanding of the role and responsibilities of the modern law faculty is emerging and it emphasises that much more can and should be done to raise awareness among individual lawyers of the need for commitment to the ideals of professionalism and high ethical standards, as well as their social responsibility to the community they live in. Consequently, law faculties are an important locale for moulding lawyers’ outlook not only towards legal doctrine, but also their professional and ethical roles in society. According to Professor Economides, “professionalism is

2 Kim Economides, The Role of Law Schools in Founding and Reviving Legal Professionalism – The Need for Ethical Leadership, Paper presented at The University of The Gambia (2010). 40 Senghore an important value to be nurtured regardless of its significance to the legal profession and civil society. Ethical perspectives also matter when it comes to core academic activities of legal scholarship such as teaching and research.”3 This implies that a course on legal ethics should be made mandatory in the undergraduate law curriculum. The expected outcome of this process is the strengthening of the professionalism and integrity of future lawyers and judges so as to enable them better connect with the fundamental values and wider civic responsibilities of legal scholars and practitioners.4

4 The Nature of Legal Ethics and Professionalism

Professional ethics has been defined in various ways albeit the message contained in those definitions remains the same. One such definition is as follows:

Professional ethics may be defined as a code of conduct written or unwritten for regulating the behavior of a practicing lawyer towards himself, his client, his adversary in law and towards the court. Thus, ethics of legal profession means the body of rules and practice, which determine the professional conduct of the members of a bar. When a person becomes an advocate, his relation with men in general is governed by the general rules of law but his conduct as advocate is governed by the special rules of professional ethics of the Bar. The main object of the ethics of the legal profession is to maintain the dignity of the legal profession and the friendly relation between the Bench and the Bar.5

According to Chief Justice Marshall of the United States, “the fundamental aim of legal ethics is to maintain the honour and dignity of the law profession, to secure a spirit of friendly co-operation between the Bench and the Bar in the promotion of highest standards of justice, to establish honourable and fair dealings of the counsel with his client, opponent and witnesses; to establish a spirit of brotherhood in the Bar itself; and to secure that lawyers discharge their responsibilities to the community generally.”6

3 Id. 4 Id. 5 S. Khan, Ethics of the Legal Profession (2009) Unpublished Research Paper (On file with the Author.). 6 Id., citing Chief Justice Marshall. Legal Professionalism and the Need for Ethical Leadership 41

The legal profession is therefore an honourable one, and as such, its members are expected to act in an honest and upright manner. Any deviation from these elementary principles could have disastrous consequences and those responsible for such a deviation must be severely dealt with. Based on the above definitions of legal ethics, the following broad categories of obligations can be discerned.

4.1 The Triple Obligations A legal professional whether from the Bar, the Bench, or from academia is under a triple obligation.

1. An obligation to the clients i.e. to be faithful to them till the end of their relationship; 2. An obligation to the profession itself. In other words, the legal professional is under an obligation not to tarnish the image and credibility of the profession in the eyes of the general public; and 3. An obligation to the court and the process of justice delivery. A legal professional owes an obligation to the court and the justice delivery system. He must remain loyal to the process, and be a reliable and dependable participant in the machinery of justice delivery. In the view of one legal expert, the law itself is a fraternity and therefore the legal profession is entitled to loyal support of its members and absolute honesty to all concerned parties for the maintenance of this tradition. One of the implications of this ethical perspective on the legal profession is that lawyers must maintain certain ethical and intellectual standards for the dignity of their profession; and they ought to subordinate pecuniary interests to the ethical discharge of their professional responsibilities.7

5 The Need for Ethical Leadership in Professional Life

Beyond the strict confines of legal practice and the legal academe, in many societies, members of the legal profession have occupied leadership positions both in government and civil society. Lawyers therefore have been privileged and entrusted with formal directing authority in the functions of many governments with the result that they have been able to influence the direction of both Government policy and socio-economic development in many societies. This position of leadership, authority and influence in society requires that legal

7 Id. 42 Senghore professionals of all categories demonstrate ethical leadership in the discharge of their functions. Governments of the modern state have entrusted substantial authority in governance to members of the legal profession. In modern systems, legal professionals exercise significant authority in all the three arms of government; they occupy all the directing positions in the judiciary, and a significant influence in the executive and the legislative branches. Given their public roles in modern governance, it is important that lawyers constantly remind themselves of the standard rule of professional conduct in the law that every member of the legal fraternity should be a representative not only of the interests of his/her clients, but also of the public interest at large.

6 Strategies for Instilling Professional Awareness and Commitment and for Promoting Ethical Leadership

Having noted the need for training in ethics and professionalism, and argued that such training should be integrated into the core curriculum of law schools, I will now share the experience of the Faculty of Law at the University of The Gambia in its effort to promote instruction in ethics and professionalism at the earliest stages of legal training. As discussed below, the Law Faculty of the University of The Gambia has been experimenting with the idea of integrating ethics and professional training at the early stages of legal studies through four different strategies.

6.1 Legal Ethics as a Course in the Under-Graduate Law Degree Programme This course introduces students to ethical analysis, including the examination of various theories of ethics, the nature and operation of the adversarial legal system and the role of lawyers in it, the wider responsibilities of lawyers in the community, and the ethical and professional duties of practitioners, legal academics and advisors. The aim is to canvass a range of contemporary ethical issues, explore personal perceptions of ethical behaviour, improve the ability of students to critically reflect on various ethical questions, and through this process get them thinking about the ethical boundaries of their future profession. As already alluded to, this approach represents a departure from the current practice, at least in the common-law tradition, by which legal ethics as a field of study is preserved for the professional part of legal training, whether as Legal Professionalism and the Need for Ethical Leadership 43 barristers or solicitors. It is argued that by integrating ethics training into the core law curriculum, future lawyers would be exposed to the ideals and principles of professionalism and ethics of the legal profession at their most formative stages.

6.2 Clinical Legal Education, pro bono Work and Community Legal Services While the first strategy described above is based on classroom instruction, the second strategy seeks to expose learners to the external environment through the provision of pro bono and community legal services to members of the public. By working under the guidance and mentorship of Faculty members and senior legal practitioners, these learners have their first opportunity of gaining practical experience participating in the provision of legal advisory services to ‘clients’. Even at this very early stages of their training, our students are offered an opportunity to see the “law in action”, thus providing a bridge to the doctrinal knowledge acquired from the “law on the books.” Perhaps more significantly, the Faculty of Law’s legal clinic and pro bono services have increased access to professional legal services and by extension, access to justice, for an increasing number of citizens, who could otherwise not afford to pay for the services of private counsel. Finally, as argued above, it is our firm belief that the sort of experiential learning law students acquire from these pro bono programmes even at this early stage of their career, has the potential to inculcate in them a public service ethos that could serve them well in their future roles in Government, civil society or academia. In other words, these sort of programmes help to form learners’ attitudes towards the moral qualities of sacrifice, generosity, altruism and public service in the interests of the community. It is our hope that the faculty of law’s clinical legal education and pro bono legal services programme will continue to serve as vehicles to trans- mit the principles, norms and values of professionalism and ethical leadership in our students.

6.3 Periodic Public Lectures on Ethics and Professionalism The Faculty of Law has, over the years, also attempted to provide opportunities for public and private sector lawyers to share their real life experiences with law students, especially on matters of ethics and professionalism. Some of these efforts have taken place through public lectures at which senior practitioners are invited to the faculty to speak about practical issues of professional ethics they have encountered in their work. These lectures have provided another opportunity to link the theoretical knowledge that students acquire in the classroom with real life experiences of practitioners in the field. 44 Senghore

7 Conclusion

Hassan Bubacar Jallow exemplifies what the ideal public sector lawyer ought to be in contemporary African and international society. He combines a solid knowledge of the positive law, with a sophisticated and nuanced understanding of its practical application in various domestic and international contexts. But more than that, he is capable of applying the law with a sound ethical and moral compass in a manner that shows fidelity to the core values of the legal profession. That is why I have dedicated this essay to his years of public service at home and abroad. But it is also my hope that this and other essays in this volume that speak to Hassan’s many contributions, would inspire future generations of lawyers to serve both as good legal technicians, and morally courageous and upright citizens committed to selfless public service. As I have tried to show, due to their unique training and the leadership roles that society has come to expect of lawyers in contemporary governance systems at the domestic and international level, legal training ought to go beyond the acquisition of doctrinal knowledge in the form of rules, principles, and precedent; it ought to include the ethical and professional dimensions of training. Even more significantly, I have suggested that this more holistic approach to legal training ought to commence at the very early stages of law school, and should be integrated throughout the law faculty curriculum. In this regard, I shared the experience of the Faculty of the Law at the University of The Gambia, which, despite its recent creation, has attempted to integrate the study of ethics and professionalism into core curricula training. Considering the negative perception that has surrounded a good number of African legal and judicial systems as inefficient, inept or even corrupt, and the potential impact that the failure of this third branch of government could have on governance, it is my view that holistic legal training by which the study of rules, principles and precedent is combined with courses in legal ethics and legal professionalism, could be one way of better preparing future lawyers to perform the larger roles that society expects of them. Finally, let me conclude by saying that the office of the legal professional in contemporary domestic and international society is a public trust which demands the office holder to act with selfless dedication to fulfilling the purpose of the trust in the interests of society, and out of fidelity to values of the legal profession. Part 2 The Role of the International Prosecutor

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Chapter 5 The Role of the International Prosecutor as a Custodian of Global Morality

Bankole Thompson

1.1 Introduction There is arguably no office more challenging and demanding in the domain of international criminal justice today than that of the prosecutor. This is so because the prosecutorial role is that of a custodian of global morality. In effect, the responsibility of the prosecutor in the international domain is not only a legal one; it also has a moral dimension. Hence, the aim of this short essay is to offer, in recognition of the services of Hon. Justice Hassan Jallow, former prosecutor of the International Criminal Tribunal for Rwanda, some general insights – that some might still find controversial – on the continuing controversy about the legal enforcement of morals. It delineates and explores some of the moral complexities and dimensions of the prosecutorial function and responsibilities in the international sphere. It begins with the postulate that the prosecutorial role in the global context is a perennial struggle for the preservation of the moral values of society which are the enduring ligaments that bind all civilized nations together through the application of the rule of law, utilizing the variety of concepts, doctrines, principles and rules available in the legal arsenal of international criminal tribunals.

1.2 The Conceptual Thrust of the Essay The specific thesis advanced here is that, by the regulatory device of international criminal law, the global community acts out of moral imperatives to combat, through the principal agency of the prosecutorial office, the culture of impunity manifested by the widespread and systematic commission of atrocity crimes in various parts of the world. These crimes are not simply illegal acts in a technical legalistic sense. They are intrinsically moral wrongs according to civilized traditions of moral theory and understanding. More specifically, they are, as Cassese reminds us, ‘particularly odious offences in that they constitute a serious attack on human dignity or a grave humiliation or degradation of one

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_006 48 Thompson or more persons’.1 Conceptually speaking, the principle of individual criminal liability which lies at the core of international criminal law, a constantly evolving and sophisticated formal penal global mechanism, is grounded upon the recognition of certain absolute, universal and immutable moral values. Accordingly, culpability generally for crimes against humanity, war crimes, and other grave violations of international humanitarian law is not simply mental culpability in the legalistic sense of mens rea. It is also moral culpability inherent in a ‘rationally determined and essentially determinate’2 normative regime grounded on respect for human dignity as a universal moral genotypic ideal. This reasoning is amply underscored by the letter and spirit of the Nuremberg Principles whose formulation was motivated by the intense moral outrage and revulsion felt by the international community for the crimes perpetrated by the Nazis against the Jewish people. They continue to be an unequivocal and emphatic moral denunciation by the international community of those horrendous acts. They constitute the moral architecture for contemporary international criminal law. International crimes are, therefore, in essence acts which strike at the very foundations of humanitarian and moral values. Explaining the motif behind the drafting and adoption of the Universal Declaration of Human Rights, Morsink noted that ‘The moral outrage thus created gave them a common platform from which to operate and do the drafting.’3 Consistent with this motif, it is such moral values that prosecutors of international criminal tribunals are empowered to protect and enforce under the global mandate to investigate and prosecute atrocity crimes. Historical records show that these crimes were compendiously characterized by the Allied Powers during the deliberations on the original plan for the creation of an international court to try Kaiser Wilhelm II as ‘crimes against international morality’, the preference for a neutral terminology notwithstanding.4 Evidently, this was an acknowl- edgment of the moral values which underpin modern civilized societies, individually and collectively. The prosecutor of an international criminal tribunal, therefore, becomes a key global figure entrusted with the complex and delicate task of dispensing

1 See Antonio Cassese, International Criminal Law (2nd ed. Oxford: Oxford University Press, 2008) at 98. 2 See Robert P. George, ‘Natural Law and Legal Reasoning in Robert P. George (ed.), Natural Law Theory, (Oxford: Clarendon Press, 1992) at 148. 3 See Johannes Morsink, The Universal Declaration of Human Rights, Origins, Drafting and Intent, (Pennsylvania: University of Pennsylvania Press, 1999) at 37. 4 See Geoffrey Robertson, Crimes Against Humanity (Revised ed., New York: The New Press, 2000) at 17. the International Prosecutor – Custodian of Global Morality 49 justice in the trial of criminal cases involving acts which, from a moral perspective, are heinous and despicable in nature regardless of their technical legal characterizations. In this regard, the prosecutor becomes a principal actor of the international war crimes tribunal courtroom workgroup. In the discharge of this mandate, the prosecutor, as it were, operates a universal moral radar screen which enables him or her to monitor and identify gross infractions of human rights and freedoms, investigate and prosecute them before international criminal courts in a bid to restore the moral equilibrium and cohesion of society. Despite the complexity of this task, it is implausible to maintain that there may arise a conflict between the professional values of the prosecutor and his or her moral obligations in the performance of the investigative and prosecutorial functions. In the domain of international criminal justice where the charges involved are those which shock humanity’s conscience, there will be more consonance than dissonance between professional values and moral commitment. Admittedly, this kind of reasoning does trigger off the contraposition between legal orthodoxy and moral orthodoxy, reviving the enduring controversy as to the precise boundary line between law and morals. In his classic work on the enforcement of morals, Lord Devlin offered some profound insights on the subject. He began with the major premise that the criminal law in carrying out its functions will undoubtedly overlap with the moral law. The learned judge then proceeded to advance three key propositions on the specific issue of the presumed tension between the criminal law and the moral law. The first is that the criminal law is based upon a moral principle, and that in a number of crimes its function is simply to enforce a moral principle and nothing else. The second is that society means a community of ideas, and that without shared ideas on politics, morals and ethics no society can exist. The third is that society is bound together not physically but by a common bond of morality. Based on these propositions, the learned judge concluded that the dividing line between criminal law and moral law ‘is not determinable by the application of any clear-cut principle’, and opined that it is ‘like a line that divides land and sea, a coastline of irregularities and indentations.’5 Lord Atkin took much the same position when he reasoned in the celebrated English case of Donoghue v. Stevenson that the idea which provides a moral base for much of the law, criminal or civil, is that of ‘a general public sentiment of moral wrong doing for which the offender must pay.’6 Sir John Barry,

5 See Patrick Devlin, The Enforcement of Morals (London: Oxford University Press, 1965) at 21–22. 6 (1932) AC. 562 at 580. 50 Thompson an Australian judge, once characterized the retributive purpose of the criminal law as a reinforcement of the ‘moral sentiments of the community that favor promotion of virtue and discourage the pursuit of evil doing.’7 For the sake of clarity, it should be emphasized that the term ‘moral law’ is used in this essay to denote “the law of conscience and the aggregation of those rules and principles which relate to right and wrong conduct and prescribe the standards to which the actions of man should conform in their dealings with one another.”8 Evidently, such a definition is premised upon the complex notion that right and wrong are moral absolutes. Adopting the reasoning of Lord Devlin, it may be postulated that the moti- vating force behind the international criminal justice system is a general moral sentiment of wrongdoing manifested in diverse forms of international criminality. It seems evident that in the sphere of international criminal law the degree of overlap between legal values and moral values underlying cri- mogenic proscriptions is quite significant, if not considerable. Accordingly, atrocity crimes must not simply be conceptualized as acts which produce a calculated assessment of collective harm to the international community for which the perpetrator must pay consistent with the doctrine of retribution, but as acts which are inherently morally reprehensible, a conviction for which should be perceived as the moral condemnation of the global community. Furthermore, the moral dimension of the prosecutor’s role in the international domain is that the pursuit of justice entails not only the reinforcement of the principle of legality but equally, directly or indirectly, the preservation of the global moral order. This perception accords with the orthodox thinking of Aquinas that justice is itself a supreme moral virtue.9

2.1 The Prosecutorial Role: International and Comparative Perspectives Consistent with the foregoing elaboration of this chapter’s conceptual thrust, the powers, functions and responsibilities of the prosecutor in modern criminal justice systems will now be briefly examined. Understood in their technical legalistic sense from the international and comparative perspectives, the prosecutorial authority, functions and responsibilities have been variously

7 Norval Morris and Colin Howard, Studies in Criminal Law, (Oxford: Clarendon Press, 1964) at p. xxv.; see also Bankole Thompson, The Criminal Law of Sierra Leone, (Maryland: University Press of America Inc. 1999), at 17. 8 See Joseph R. Nolan (ed.) Black’s Law Dictionary (6th ed. St. Paul, Minnesota: West Publishing Co., 1979), at 106. 9 Charles P. Nemeth, Aquinas in the Courtroom, Lawyers, Judges, and Judicial Conduct (Connecticut: Greenwood Press 2001), at 65. the International Prosecutor – Custodian of Global Morality 51 articulated. First, the prosecutor is the principal official assigned the task of promoting and encouraging respect for human rights and freedoms. From the international perspective, the prosecutorial function is depicted as crucial and pivotal in the administration of justice. In this context, the holder of the office is obliged (a) to act in accordance with the law, fairly, consistently and expeditiously, and to protect and uphold human rights as enshrined in the Universal Declaration of Human Rights aptly characterized as the ‘universal moral code’ evidencing a consensus among peoples ‘of all sorts of different backgrounds into a circle of moral agreement’;10 (b) to refrain from using illegally obtained evidence or evidence of a grossly prejudicial nature against defendants; and (c) to act fairly and impartially throughout both the trial and sentencing phases of a criminal case. Second, as a matter of comparative interest, the prosecutor’s role in common law criminal justice systems, notably, Britain, the United States, as well as former British-colonial African, Asian and Caribbean countries is one of considerable authority and pre-eminence. It is, likewise, challenging and demanding. Historically, the American profile of the prosecutorial role has a close ances- tral linkage with its British counterpart. Hence, their juridical affinity. Despite significant differences between the common law prosecutorial profile and that of the civil law systems, for example, Germany, France, Italy and The Netherlands, they share a common attribute. It is the enormous discretionary power enjoyed by the prosecutor during the pretrial, trial and sentencing phases of a criminal case.

2.2 The Prosecutorial Authority: Global Statutory Perspective Understood from the perspective of that of a minister of international justice, the prosecutor has certain specific powers, functions and responsibilities now codified in the Rome Statute, 1998 establishing the International Criminal Court. By virtue of Art. 42 of the Statute, the prosecutor is the principal head of the office of the prosecutor vested with certain specific powers. First, it is independent and separate from the Court.11 Second, it has responsibility for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and conducting investigations and prosecutions before the Court.12 Third, the office or any member thereof shall not seek or act on instructions from any external source.13 The cumulative

10 See Morsink, supra note 3 at 37. 11 See Art. 42(1). 12 Ibid. 13 Ibid. 52 Thompson effect of these provisions is that the prosecutor enjoys considerable functional autonomy and independence in the performance of his or her duties. In addition, the prosecutor is administratively and fiscally independent of the other organs of the Court.14 These are quite substantial powers and responsibilities. Technically speaking, based on the letter and spirit of the Rome Statute, the prosecutor is the primary representative of the international community by virtue of the belief that violations of international criminal law are an affront to the international community. The same is true of the other international criminal tribunals. By parity of reasoning, it is noteworthy that each of the Statutes of the contemporary ad hoc international criminal tribunals preceding the ICC (the only permanent international criminal court) vests the prosecutor of each such tribunal with similar substantial powers and responsibilities coupled with enormous discretionary authority and functional autonomy. By virtue of Art. 15(1) of the Statute of the International Criminal Tribunal for Rwanda, the prosecutor is responsible for the investigation and prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and neighbouring States, between 1 January 1994 and 31 December 1994. Art. 15(2) vests the prosecutor with the functional independence as a separate organ of the tribunal and statutorily enjoined not to seek or receive instructions from any Government or from any other source. In like manner, Art. 16(1) of the Statute of the International Criminal Tribunal for the Former Yugoslavia grants the prosecutor similar prosecutorial authority in respect of serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991. Art. 16(2) also guarantees the prosecutor functional independence and autonomy.The same holds true of the United Nations- backed Special Court for Sierra Leone which, under Art. 15(1) of the Court’s Statute, empowers the prosecutor with authority for the investigation and prosecution of persons who bear the greatest responsibility for serious violations of international humanitarian law and crimes under Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996. Again, like the other tribunals, the prosecutor of the Special Court for Sierra Leone is guaranteed functional independence and autonomy.

3.1 The International Prosecutor: ‘A Person of High Moral Character’ Intrinsically, it is the prosecutor’s responsibility to apply the standards of what is right and what is wrong, and what is good and what is bad, the conceptual bedrocks of modern civilization as a reflection of society’s enduring humanitarian and moral values. This is reinforced by Art. 42(3) of the Rome Statute

14 See Art. 42(2). the International Prosecutor – Custodian of Global Morality 53 and similar provisions in the statutes of the other tribunals which stipulate, as an overriding criterion for appointment to the office, that the prosecutor shall be a person of ‘high moral character’, a phrase which can reasonably be interpreted literally, or restrictively, or broadly consistent with the necessary implication that eligibility for the office requires personal and professional commitment and a demonstrated record of capability to determine what is right and what is wrong, rationally grounded. Inferentially, it is statutorily required that the office holder should be an individual of ‘character incompa- rable, reputation unsullied, a high standard of professional ethics and sound judgment of no mean order’.15 In sum, he or she should be a highly principled individual. As an organ of justice, a description aptly given to the office in the statutes, the prosecutorial authority in the domain of international criminal justice entails the protection and enforcement of those absolute, universal, and immutable norms, the observance of which is vital in every society for the preservation of, in Blackstone’s terminology, the ‘trichotomy of life, liberty, and property’,16 and in contemporary terminology ‘the trilogy of freedom, equality, and dignity’ as enshrined in Art. 1 of the Universal Declaration of Human Rights. Hence, the observation of Cassese that acts in breach of such norms offend ‘universal values, that is, values recognized by the whole world community, which ‘do not only run counter to moral and legal values prevailing in the local community directly affected by them’.17 Therefore, the view that international criminal justice is merely legalistic justice where the boundary line between legality and morality are distinct and well-defined to the point of mutual exclusivity flies in the face of both logic and reality. The uniqueness of the international criminal law system derives from its synthesization of the moral principle and the principle of legality as a basis for prosecutorial action in contrast to national criminal law systems where the principle of legality and the principle of expediency alternate.

3.2 Obligations of the Prosecutor in the International Domain: Moral Sensitivity and Vigilance Pursuing the analysis a stage further, the moral dimension of the prosecutor’s role in the international domain may be summed up in these terms: whenever and wherever there have occurred egregious and massive violations of human

15 See Attorney-General v. Tufts 239 Mass. 488 (1921). 16 See Daniel J. Boorstin, The Mysterious Science of Law, An Essay on Blackstone’s Commentaries (Chicago: The University Press of Chicago 1941), at 140. 17 See Cassese, supra note 1 at 49. 54 Thompson rights and freedoms, in exercise of the prosecutorial mandate, whether on the motion of the prosecutor or that of a state or the United Nations Security Council, in responding to such situations and guided by legal criteria, it is an underlying assumption of this essay, albeit controversial, that the prosecutor in the global context cannot be morally insensitive and indifferent to the moral and humanitarian values underpinning the international criminal justice system. Put differently, it is being contended that moral sensitivity and vigilance are part of the complex prosecutorial actions in such cases. It is not simply a matter, as it were, of pressing the right legal buttons coming up with the right legalistic answers. Logically, there is no incompatibility between the moral dimension of the prosecutorial role and the obligation to restore the moral and social equilibrium of the global community through the utilization of the orthodox legal techniques of investigation and prosecution. Distinctions of this nature in a highly complex contemporary world, where the thinking of the international community on issues of human rights violations is dominated by the collective awareness that acts that ‘shock the conscience of humanity’ are patently morally reprehensible and evil are, evidently artificial, if not, in a pragmatic sense, fictitious. It is in this context that some of the major challenges to the prosecutorial role become manifest. What are these challenges? This issue will be addressed in the next Part.

4 Challenges to the Global Prosecutorial Role

Challenges to the global role of the international prosecutor are enormous, inescapable and formidable. Two such challenges deserve brief consideration here because they strike at the core of the prosecutorial role. The first relates to the exercise of the prosecutorial discretion to indict or not to indict a person suspected of the commission of an international crime. This discretionary power carries with it a high potential of the possibility of abuse. Robert H. Jackson, the renowned American prosecutor at Nuremberg, captures its tremendous practical impact with the succinct assertion that no other public official has ‘more control over life, liberty, and reputation than any other person in America’ as the prosecutor.18 A major vulnerability of the exercise of prosecutorial discretion to charge a criminal suspect is the phenomenon often described as unfair, selective, or vindictive prosecution. Whether an allegation of unfair, selective or vindictive prosecution in any particular instance has

18 See Kenneth Culp Davis, Discretionary Justice (Baton Rouge, Louisiana State University Press 1969), at 190. the International Prosecutor – Custodian of Global Morality 55 merit or not is always problematic due to the fact that the exercise of prosecutorial discretion is not, as a general rule, amenable to judicial review due to the qualified immunity which attaches to the prosecutorial office. Exceptionally (and this is trite law), where it is alleged that the exercise of prosecutorial discretion in a particular instance amounts to a violation of the prosecutor’s ethical obligations or an infringement of the law in that the exercise of the discretion was influenced or tainted by such impermissible factors as discrimination or vindictiveness, there would be a presumption of bad faith on the part of the prosecutor leading to a finding of prosecutorial misconduct. There are case-law authorities in both the municipal law systems and the international law system to support this reasoning. A detailed survey of these authorities is beyond the scope of this essay. Suffice it, however, to note that one experience of the United Nations-backed Special Court for Sierra Leone provides some practical context for this challenge. In this regard, it is worth recalling that it was alleged in some quarters in the country during the trial of the Civil Defence Forces case that the Chief Prosecutor of the Court had acted in bad faith in prosecuting Samuel Hinga Norman, the first accused. Interestingly, the issue never came before the Court for determination even as part of the jurisdictional question raised by Norman’s counsel. In a broader sense, this challenge has appeared in the context of the International Criminal Court in the form of an allegation emanating from the regional perception of the African Union alluded to by David Crane, former prosecutor of the United Nations- backed Special Court for Sierra Leone, ‘that international justice and international law have remained white man’s justice’, and that, ‘stemming from the hubris of the colonial era, the modern paradigm of international criminal law laid out in Rome in 1998, has just become more of the same: punishing Africans for infractions by former colonial powers’.19 Admittedly, this is a very controversial issue given the belief that perception sometimes defines reality. It is, however, of interest to note that the incumbent prosecutor of the International Criminal Court, Fatou Bensouda, is on record as distancing herself professionally from such a perception and calling upon the political authorities to support ‘the independent course of justice’.20

19 See David M. Crane, ‘An Age of Extremes: International Law in Crisis: Eight Challenges’, Vol. 44 nos. 1 and 2 Case Western Reserve Journal of International Law (2011) 47–92 at 50. 20 Fatou Bensouda, ‘Update from the Current Prosecutors’ in Elizabeth Anderson and David M. Crane (eds.) Proceedings of the 6th International Humanitarian Law Dialogs no. 45 Studies in Transnational Legal Policy, Washington D.C.: American Society of International Law (2012) 271–316 at 314. 56 Thompson

An examination of the merits or otherwise of the positions reflected in the opposing views on the issue is beyond the scope of this chapter. Independence is an indispensable attribute of the prosecutorial office. The challenge here can manifest itself in diverse and insidious forms. One such is the vulnerability to succumb to external pressures. It can be taken as axiomatic, whether in the context of national criminal justice or the domain of international criminal justice, that the overall interests of justice demand an unflinching and unyielding commitment to, and practice of, a prosecutorial philosophy or policy firmly grounded on functional independence to the exclusion of extraneous factors, notably of a personal, political, regional, national, global, or geo-political nature or the nebulous notion of realpolitik. There is a global community interest involved there. It is in the interest of the global community that a prosecutor in the international domain should be at liberty to exercise his or her functions without fear of consequences. In effect, the greater interest of the international community in the uninhibited investigation and prosecution of international crimes must override other competing interests. Where a prosecutor yields to extraneous factors or external pressures in the discharge of his or her mandate, the legitimacy, credibility and efficacy of the criminal law will inevitably be jeopardized resulting in the gradual erosion of public confidence in the rule of law. Without yielding to the temptation of transforming the rest of this Essay into a festschrift (that not being the original intent), I think it is a fair judgment that Justice Hassan Jallow did, during his tenure as prosecutor of the International Criminal Tribunal for Rwanda, fulfil his prosecutorial functions and responsibilities in consonance with the high expectations of the office. History will record him as one of the faithful custodians of global morality in contemporary times, given the magnitude and intractability of the problems posed to humanitarian values by the genocidal activities in that part of the world.

5 Conclusion

Finally, the inference is irresistible that the moral dimension of the prosecutorial role in the domain of international criminal justice involves a realization on the part of those who aspire to, or hold, such a high office that the supreme mission of international criminal justice is the preservation of humanity’s moral strength and a rediscovery and reassertion of its moral values and standards, taking into account that the evolution of all societies, ancient and modern, has always been primarily influenced and shaped by a communal or collective the International Prosecutor – Custodian of Global Morality 57 sentiment that conduct that is permissible or impermissible is grounded on certain moral values that remain absolute, universal, and immutable. Hence, the international prosecutor should constantly keep in mind that in the contemporary global normative order, the international community accords primacy to inborn human dignity as the core moral attribute of personhood, and that what are embodied in the Universal Declaration of Human Rights are, unquestionably, moral truths formulated in legal language. chapter 6 Selecting Cases at the International Criminal Tribunal for Rwanda

William A. Schabas

The International Criminal Tribunal for Rwanda has jurisdiction over ‘persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994’.1 The ‘serious violations’ are defined in detail under the rubrics of genocide, crimes against humanity and violations of Article 3 common to the Geneva Conventions and of Additional Protocol II.2 That hundreds of thousands of persons fall within the jurisdiction of the Tribunal in accordance with these provisions requires no particular demonstration. Rwanda’s gacaca trials have furnished ample evidence of the involvement, as perpetrators or accomplices, of huge numbers of individuals in the atrocities that devastated the country in 1994.3 As the Appeals Chamber said, referring to the International Criminal Tribunal for the former Yugoslavia but in words equally applicable to Rwanda, ‘[i]t is axiomatic under Article 9 of the Statute that it was never the intention of those who drafted the Statute that the Tribunal try all those accused of committing war crimes or crimes against humanity in the Region’.4 Nevertheless, the Statute of the International Criminal Tribunal for Rwanda provided no particular guidance or instruction as to the criteria by which the tiny sub-category of perpetrators who might be suitable for prosecution by the Tribunal was to be identified. This task was left to the Prosecutor, appointed pursuant to article 17 of the Statute. The Prosecutor was to investigate charges and then, ‘[u]pon a determination that a prima facie case exists’, he or she was to ‘prepare an indictment’. There was a modest degree of judicial oversight in

1 UN Doc. S/RES/955 (1994), Annex, art. 1. 2 UN Doc. S/RES/955 (1994), Annex, arts. 2–4. 3 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda (Cambridge University Press, 2011). 4 Prosecutor v. Stanković (Case No. IT-96-23/2-AR11bis.1), Decision on Rule 11 bis Referral, 1 September 2005, para. 14.

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_007 Selecting Cases at the ICTR 59 that a judge of the Trial Chamber was to review the indictment. The judge was to grant the indictment ‘[i]f satisfied that a prima facie case has been established by the Prosecutor’.5 In the early months of its activity there had been some dispute about prosecutorial strategy at the International Criminal Tribunal for the former Yugoslavia. President Antonio Cassese had objected that Prosecutor Richard Goldstone was dealing with low-level perpetrators, some of them very incon- sequential personalities, individuals of no importance and without any leadership role.6 But with the wars in the former Yugoslavia still ongoing, it was not a simple matter to apprehend the leaders, many of whom were still in power or were being protected by friendly regimes. The first meals served by the Tribunal involved very small fish. The Rwanda Tribunal had a different starting point. The conflict had ended by the time the Tribunal began its operations. Many suspects, including those in leadership positions, were in detention within Rwanda. Others had fled the country but could be identified and apprehended without great difficulty. Larger fish were on the menu. Despite the absence of any formal requirement within the applicable legal instruments, from the outset the Prosecutor of the International Criminal Tribunal for Rwanda seemed to understand the importance of focusing on senior leaders. Moreover, the Prosecutor possessed the powers and resources to make this a reality, something that was not as obvious in the former Yugoslavia. What better evidence can there be than the first individual to be convicted and sentenced by the Tribunal, in 1998: Jean Kambanda, who had been Prime Minister of Rwanda for much of the period of the genocide.7 By comparison, the first persons found guilty at the Yugoslavia Tribunal were insignificant thugs. It was not until 2001, with the arrest of Slobodan Milošević, that the Yugoslavia Tribunal was able even to start prosecution of someone of comparable stature to Kambanda. Indeed, two decades after it began its work, the International Criminal Tribunal for the former Yugoslavia had still not managed to convict a head of State or Government. The first Annual Report of the Tribunal to the United Nations provided some indication of the approach that the Prosecutor would adopt. It said that the Office of the Prosecutor ‘would give priority to investigating and prosecuting individuals who had held important responsibilities in the events which occurred in Rwanda in 1994’. The Report explained that ‘[g]iven the limited

5 UN Doc. S/RES/955 (1994), Annex, art. 18(1). 6 Heikelina Berrijn Stuart and Marlise Simons, The Prosecutor and the Judge: Benjamin Ferencz and Antonio Cassese, Interviews and Writings (Pallas Publications, 2009). 7 Prosecutor v. Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998. 60 Schabas financial and human resources available to it, the Office of the Prosecutor had no choice but to concentrate its efforts on individuals who had been in positions of responsibility’.8 The second Annual Report said that ‘after stocktaking, the Prosecutor decided to reinforce and refocus the investigations on people who were in positions of authority at the national level during the genocide’.9 A subsequent report said the prosecutorial strategy, developed in May 1997, targeted investigations ‘exclusively on persons who occupied positions of authority at the time of the genocide, more specifically, those who conspired to commit genocide’.10 Still later, prosecutorial policy was described as focusing on ‘investigations of persons wielding authority of State during the genocide – more precisely, targeting political and military officials at the highest levels and attempting to elicit proof that they conspired among themselves to organize and execute the genocide’.11 The emphasis was on ‘suspects who are alleged to have been in the highest positions of leadership and authority and on those who are alleged to have taken the most prominent roles in the events. These persons are alleged to be former political leaders, high-ranking military officers, media leaders, senior government administrators, prominent businessmen and public figures.’12 The sixth Annual Report also said that

8 Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law committed in the territory of Rwanda and Rwandan citizens responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States Between 1 January 1994 and 31 December 1994, para. 42, UN Doc. A/51/399-S/1996/778. 9 Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law committed in the territory of Rwanda and Rwandan citizens responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States Between 1 January 1994 and 31 December 1994, para. 52, UN Doc. A/52/582-S/1997/868. 10 Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law committed in the territory of Rwanda and Rwandan citizens responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States Between 1 January 1994 and 31 December 1994, para. 47, UN Doc. A/54/315-S/1999/943. 11 Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law committed in the territory of Rwanda and Rwandan citizens responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States Between 1 January 1994 and 31 December 1994, para. 120, UN Doc. A/55/435-S/2000/927. 12 Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law commit- Selecting Cases at the ICTR 61

‘[s]pecial attention is given to crimes of sexual violence’,13 although such a claim is probably an overstatement. Several years later, the Tribunal’s Prosecutor wrote that although ‘there was some ground-breaking effort in the Akayesu case which made rape punishable as genocide, prosecutorial policy did not thereafter place much emphasis on prosecution for sexual violence’.14 By 2002, the Prosecutor had begun implementing a completion strategy.15 It meant there would be only a handful of new indictments. The completion strategy also involved transfer of cases to national jurisdictions, either within Rwanda or in other states prepared to exercise universal jurisdiction. In effect, the Prosecutor’s main task was to determine those cases that she would not take to trial. She would ‘de-select’, so to speak, by transferring them to national courts. The first draft of the Tribunal’s Completion Strategy was presented in July 2003.16 It said that henceforth the Prosecutor would only consider charging persons ‘bearing the highest responsibility for the crimes committed in Rwanda in 1994’.17 Within days of taking office as Prosecutor of the Tribunal, in October 2003, Hassan Jallow addressed the United Nations Security Council. He spoke of ‘the selection for prosecution of those persons who bear the greatest responsibility

ted in the territory of Rwanda and Rwandan citizens responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States Between 1 January 1994 and 31 December 1994, para. 42; also, para. 213, UN Doc. A/56/351-S/2001/863. 13 Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law committed in the territory of Rwanda and Rwandan citizens responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States Between 1 January 1994 and 31 December 1994, para. 119, UN Doc. A/56/351-S/2001/863. 14 Hassan B. Jallow, ‘Prosecutorial Discretion and International Criminal Justice’, (2005) 3 Journal of International Criminal Justice 145, at p. 153. 15 Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law committed in the territory of Rwanda and Rwandan citizens responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States Between 1 January 1994 and 31 December 1994, paras. 9–10, UN Doc. A/57/163-S/2002/733. 16 Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law committed in the territory of Rwanda and Rwandan citizens responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States Between 1 January 1994 and 31 December 1994, para. 2, UN Doc. A/58/140-S/2003/707. 17 Completion Strategy of the International Criminal Tribunal for Rwanda, para. 6, UN Doc. S/2003/946, Enclosure. 62 Schabas for the tragedy which occurred in Rwanda’18 and of ‘the prosecution and trial of the most senior leaders suspected of being most responsible for crimes falling within the ICTR’s jurisdiction’, indicating that those who did not meet the standard would be considered for transfer to national jurisdictions.19 The reference to ‘persons who bear the greatest responsibility’ may have been inspired by the Statute of the Special Court for Sierra Leone.20 Hassan Jallow was a member of the Appeals Chamber of that institution before moving to the International Criminal Tribunal for Rwanda. In 2004, the President of the Tribunal told the Security Council that prosecutions ‘will concentrate on those bearing the greatest responsibility and transfer cases involving intermediate- and lower-rank accused to national jurisdictions, in conformity with resolution 1534 (2004)’.21 Both tribunals amended their Rules of Procedure and Evidence in order to facilitate the transfer of cases to national jurisdictions. At the International Criminal Tribunal for the former Yugoslavia, there was a requirement that a three-judge chamber ‘consider the gravity of the crimes charged and the level of responsibility of the accused’ in determining whether to refer the case.22 In addition, the Bureau of the Tribunal, composed of the President, the Vice- President and the presidents of the Chambers, was required to determine ‘whether the indictment, prima facie, concentrates on one or more of the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the Tribunal’.23 The Prosecutor did not agree with these amendments, considering that they encroached upon her discretion.24 No comparable provisions were added to the Rules of the International Criminal Tribunal for Rwanda. An amendment to the Rules governing transfer decisions required only that ‘it is appropriate in the circumstances for the courts of the arresting or receiving State, as the case may be, to exercise jurisdiction over the

18 UN Doc. S/PV.4838 (2003), p. 12. 19 UN Doc. S/PV.4838 (2003), p. 14. 20 See, for more on how that standard was applied by the SCSL, see Charles C. Jalloh, ‘Prosecuting Those Bearing “Greatest Responsibility”: The Lessons of the Special Court for Sierra Leone’, (2013) 96 Marquette Law Review 863. 21 UN Doc. S/PV.4999 (2004), p. 12. 22 UN Doc. IT/32/Rev. 26, Rule 11 bis (C). Subsequently amended: UN Doc. IT/32/Rev. 32, Rule 11 bis (D). 23 UN Doc. IT/32/Rev. 30, Rule 28 (A). 24 Daryl A. Mundis, ‘The Judicial Effects of the “Completion Strategies” on the Ad Hoc International Criminal Tribunals’, (2005) 99 American Journal of International Law 148. Selecting Cases at the ICTR 63 accused’.25 Those words were repealed even before the first transfer applications were made.26 In one of its periodic reports to the Security Council on implementation of the completion strategy, the Tribunal confirmed that in determining which individuals should be tried in Arusha, ‘the Prosecutor will be guided by the need to focus on those who are alleged to have been in positions of leadership and those who allegedly bear the greatest responsibility for the genocide’. It listed five criteria to be considered in making such determinations: the alleged status and extent of participation of the individual during the genocide; the alleged connection an individual may have with other cases; the need to cover the major geographical areas of Rwanda in which the crimes were allegedly committed; the availability of evidence with regard to the individual concerned; the concrete possibility of arresting the individual concerned; the availability of investigative material for transmission to a State for national prosecution.27 However, because the Rules did not require a transfer decision to take into account the gravity of the crime and the status of the accused, these matters were not addressed in the applications for transfer and in the resulting decisions. The most controversial issue involving selection of cases at the International Criminal Tribunal for Rwanda concerned possible indictments of perpetrators associated with the Rwandese Patriotic Front. Allegations of atrocities attributable to the victorious Tutsi-led army have circulated since the time when the Tribunal was established in 1994. There is no doubt that serious violations of international humanitarian law were perpetrated by individuals associated with the Rwandese Patriotic Front after it had taken power in July 1994. This is confirmed by many sources, including a number of prosecutions that have taken place before the Rwandan courts.28 Nevertheless, there is no serious debate about the fact that ‘[t]hese crimes cannot be equated with the 1994 genocide’.29 In its resolution on the completion strategy, the Security Council

25 Amendments adopted at the Plenary Session of the Judges, 5–6 July 2002, Rule 11 bis (A) (iii); Amendments, fourteenth Plenary Session of the Judges, 23–24 April 2004, Rule 11 bis (C)(iii). 26 Amendments adopted at the Plenary Session of the Judges, 21 May 2005. 27 Completion Strategy of the International Criminal Tribunal for Rwanda, para. 14, UN Doc. S/2006/951. 28 Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda (New York, 2008) pp. 80-90. 29 Scott Straus and Lars Waldorf, Introduction: Seeing Like a Post-Conflict State, in Scott Straus and Lars Waldorf, eds., Remaking Rwanda: State Building and Human Rights after Mass Violence (U of Wisconsin Press, 2011). 64 Schabas offered a rather oblique reference to the subject, calling on various governments including Rwanda to cooperate with the Tribunal ‘including on investigations of the Rwandan Patriotic Army’.30 Prosecutor Carla del Ponte wrote at length about the subject in her memoir La Caccia. She alleged that the Security Council’s decision in 2003 to end the position of joint Prosecutor of the two ad hoc tribunals, with the consequence that del Ponte’s term at the Rwanda Tribunal was not renewed, is connected to her interest in prosecuting such cases.31 However, prosecutorial policy at the International Criminal Tribunal for Rwanda is not the only explanation for opposition to renewal of her mandate within the Security Council. A confidential cable of the United States Department of State reports that President Meron requested that her term as prosecutor of both Tribunals not be renewed.32 It seems highly unlikely that his reasons had anything to do with threatened prosecutions of Rwandan leaders. When the new Prosecutor, Hassan Jallow, reported to the Security Council on his completion strategy, the issue was addressed quite specifically. The Prosecutor said that his Office was evaluating evidence concerning allegations against members of the Rwandan Patriotic Front ‘with a view to determining whether there is a sufficient basis for prosecution, against whom and for what offences’. He said he had been engaged in discussions with the Rwandan Government about this, including the options available for dealing with cases that might arise from such an evaluation. Prosecutor Jallow was referring to concurrent jurisdiction, given that the Rwandan courts would themselves be in a position to deal with any such cases. He said he would report back to the Security Council on the matter.33 In the ensuing Security Council debate, France welcomed the information about investigations involving the Rwandan Patriotic Front, saying that it understood such investigations ‘are not among the ones to be thrown out’ and that they would be part of a specific assessment that was excluded from the more general deadline by which investigations were to be concluded at the end of 2004.34

30 UN Doc. S/RES/1534 (2004), OP 2. The phrase was repeated in UN Doc. S/PRST/2004/28. 31 Carla Del Ponte, Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity. A Memoir (Other Press, 2009) 231–239. Also: Victor Peskin, International Justice in Rwanda and the Balkans, (Cambridge University Press, 2008) 220–222. 32 United States Department of State, Diplomatic Cable, ICTY: President Meron urges USG to oppose Del Ponte renewal, 17 July 2003, 03THEHAGUE1827_a. 33 UN Doc. S/PV.4999 (2004), p. 17. 34 UN Doc. S/PV.4999 (2004), p. 22. Selecting Cases at the ICTR 65

Reporting to the Security Council in December 2006, Prosecutor Jallow recalled his previous statements about further inquiries into alleged violations by the Rwandan Patriotic Front. He said he expected to conclude this in 2007 ‘enabling us to decide which way to proceed’.35 The following June he said that investigation of the allegations ‘which we had hoped to conclude by now, need to be continued until we are in a position to finish that aspect of our mandate’.36 In December 2007 he said that ‘[s]ince my last report to the Security Council, my office has also made progress in the investigation of the allegations against members of the Rwandese Patriotic Front. We look forward to concluding this matter early next year.’37 Finally, in June 2008, he declared to the Council:

In my last report to the Council, I indicated that there had been some progress in the investigation of allegations against the members of the Rwandan Patriotic Front (RPF). Rwanda has cooperated with my Office in that process, as requested by the Council. Together, we have been able to establish a prima facie case that, on 5 June 1994, RPF soldiers killed 13 clergymen, including five Roman Catholic bishops and two other civilians, at the Kabgayi Parish in Gitarama. Some of the perpetrators of that crime are reported to have died, but others are now serving within the Rwandan Army. Following inquiries, the Rwanda Prosecutor General communicated to me his decision to shortly indict and prosecute four serving senior military officers in the Rwandan Army for murder and complicity to murder as war crimes in connection with that incident. As the Council knows, Rwanda shares concurrent jurisdiction with the ICTR over such offences. I have therefore decided to hold in abeyance further action on my part, on the clear understanding that any such prosecutions in and by Rwanda should be effective, expeditious, fair and open to the public. My Office will also monitor those proceedings. The prosecutions in Rwanda will of course be without prejudice to the primacy of the ICTR’s jurisdiction over those crimes. I hope that the prosecutions will be conducted by Rwanda in a manner that will effectively contribute to reconciliation in that country.38

35 UN Doc. S/PV.5594 (2006), p. 14. 36 UN Doc. S/PV.5697 (2007), p. 15. 37 UN Doc. S/PV.5796 (2007), p. 13. 38 UN Doc. S/PV.5904 (2008), p. 11. 66 Schabas

The Prosecutor was criticised by the non-governmental organization Human Rights Watch, as well as by some academics.39 In a letter to Prosecutor Jallow, Human Rights Watch said: ‘It would be a failure of justice – not merely victor’s justice – if you do not vigorously investigate and prosecute senior RPF officials because they are currently senior officials or military leaders in Rwanda.’40 Prosecutor Jallow answered the charge of ‘victors’ justice’ explaining that the Tribunal has ‘understandably focused for many years on the genocide as this is the main crime base of its mandate’. He added that it was his ‘strong belief that the prosecution of cases of crimes committed by the members of the RPF, where amply supported by concrete evidence, have a potentially greater impact on national reconciliation if conducted effectively and in accordance with fair trial procedures by the Rwandan authorities themselves’.41 He said that ‘[t]he decision whether to indict will be based solely on the availability of credible evidence and on the law and not on extraneous considerations or feelings of maintaining “balancing acts” by indicting “all sides” to the Rwandan armed conflict’.42 The complaints about ‘victors’ justice’ at the International Criminal Tribunal for Rwanda constitute one of the more acute manifestations of this debate since international justice revived in the early 1990s. But there are other examples, including the refusal of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia to proceed against NATO countries with respect to the 1999 bombing campaign, and more generally there have been charges from all quarters that the Tribunal has failed to get the correct ethnic mix of defendants. Nor is it absent at the International Criminal Court, where there have also been allegations that only one party to a conflict was being confronted.43

39 Victor Peskin, Victor’s Justice revisited: Rwandan Patriotic Front Crimes and the Prosecutorial Endgame at the ICTR, in Scott Straus and Lars Waldorf, eds., Remaking Rwanda: State Building and Human Rights after Mass Violence, (U. Wisconsin Press, 2011) 173–183; Filip Reyntjens, Political Governance in Post-Genocide Rwanda, (Cambridge University Press, 2013) at 244; Luc Côté, ‘The Exercise of Prosecutorial Discretion in International Criminal Law’, (2005) 3 Journal of International Criminal Justice 162, pp. 176–177. 40 Kenneth Roth to Hassan Jallow, 14 August 2009. See also: Human Rights Watch, ‘Rwanda: Tribunal Risks Supporting “Victor’s Justice”: Tribunal Should Vigorously Pursue Crimes of Rwandan Patriotic Front’, 1 June 2009. 41 Hassan B. Jallow to Kenneth Roth, 22 June 2009. 42 Hassan B. Jallow to Kenneth Roth, 22 June 2009. 43 See, for example: Amnesty International, ‘Uganda: First ever arrest warrants by International Criminal Court – a first step towards addressing impunity’, 14 October 2005, AI Index: AFR 59/008/2005; Human Rights Watch, ‘ICC Takes Decisive Step for Justice in Uganda’, 14 October 2005. Selecting Cases at the ICTR 67

However, the accusation that international justice is lop-sided dates back to its beginnings, at Nuremberg and Tokyo, where the tribunals were designed by their creators to deal with one party to the conflict and not the other. This was ensured in two ways: a jurisdictional description that limited the Court to ‘the major war criminals of the European axis’ and entrusting of decisions about the choice of the accused to prosecutors who were not independent of the governments that appointed them. The modern-day international criminal tribunals address part of this challenge by formal provision for the independence of the Prosecutor. The International Criminal Court does this better than the ad hoc tribunals because in addition to a perfunctory recognition of the independence of the office, it also provides concrete guarantees of prosecutorial independence in the form of a rather lengthy term of office that is not renewable and a detailed mechanism governing discipline and removal from office in the case of gross misconduct. To a large extent the ad hoc international criminal tribunals, through a jurisdictional limit on the situation they may address, identify the targets of prosecution in much the same way as was done by those who established the Nuremberg and Tokyo tribunals. By comparison, the International Criminal Court grants the Prosecutor unprecedented discretion in the selection of situations as well as cases. Not only may she launch an investigation into a situation on her own initiative, subject to authorisation from a Pre-Trial Chamber, but she may also refuse to investigate situations that are referred to the Court by States Parties or by the Security Council. It is beyond real debate that the International Criminal Tribunal for Rwanda was established as a consequence of the genocide that took place from April to July 1994. Specific reference was made in the Security Council to article 6 of the 1948 Genocide Convention as authority for the establishment of the Tribunal.44 It was also acknowledged during the Security Council debate that ‘the focus of the jurisdiction of the Tribunal is not on war crimes, but on genocide, as Rwanda had requested’.45 On the other hand, the Security Council acted in response to an expert report it had commissioned that concluded ‘individuals from both sides to the armed conflict’ were responsible for war crimes and crimes against humanity.46 The representative of France said that ‘[i]ndividuals, regardless of the community to which they belong, must be brought to trial and judged if they have violated

44 UN Doc. S/PV.3453 (1994), p. 4 (Keating). 45 UN Doc. S/PV.3453 (1994), p. 5 (Keating). 46 Preliminary report of the Independent Commission of Experts established in accordance with Security Council resolution 935 (1994), UN Doc. S/1994/1125, Annex, paras. 146–147. 68 Schabas the most fundamental rules of war, if they have committed crimes against humanity’.47 However, there was never any suggestion in the Security Council debate that prosecution of ‘both sides’ was necessary in order to promote reconciliation. The Tribunal was given temporal jurisdiction until the end of 1994, well after the end of genocide. It has been suggested that the purpose was to enable the Tribunal to deal with atrocities perpetrated by the Rwandan Patriotic Front after it had taken power in mid-July 1994. The Security Council debate does not bear this out. In the Council, the French delegate pointed to the temporal jurisdiction of the Tribunal, noting that it ‘makes it possible for the Tribunal to hear cases involving serious infractions which continued to be committed after July 1994 on the territory of Rwanda and on the territory of neighbouring States – first and foremost in the refugee camps’.48 However, the debate also indicates that the concern in the refugee camps was that they remained under the control of those who had been responsible for genocide and who had then fled Rwanda.49 Early in the work of the Tribunal, Prosecutor Louise Arbour chose to withdraw a case after a judge of the Tribunal refused to confirm a genocide charge against an accused who had murdered the Prime Minister and several Belgian soldiers. He would only authorise counts of war crimes and crimes against humanity. It seemed that the Prosecutor considered that charges other than genocide were a distraction from the Tribunal’s mission. Her application to withdraw said ‘the judicial proceedings instituted by the Prosecutor should be within the framework of a global policy aimed at shedding light on the events that occurred in Rwanda in 1994 and highlighting the complete landscape of the criminal acts perpetrated at the time, and that such objective would not be achieved through the prosecution of a single count indictment the factual elements of which relate solely to the murders of the former Prime Minister and ten UNAMIR Belgian soldiers’.50 Her decision does not seem unreasonable although a different prosecutor might well have chosen to continue with the case.

47 UN Doc. S/PV.3453 (1994), p. 3 (Merimée). 48 UN Doc. S/PV.3453 (1994), p. 3 (Merimée). See also: Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955(1994), UN Doc. S/1995/134, para. 13. 49 UN Doc. S/PV.3453 (1994), p. 7 (Kovanda). 50 Prosecutor v. Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutor’s Motion to Withdraw the Indictment, 18 March 1999. Selecting Cases at the ICTR 69

None of the Prosecutors of the International Criminal Tribunal for Rwanda ever took the view that atrocities perpetrated by individuals associated with the Rwandan Patriotic Front should be excluded from the work of the institution. The difficult issue was determining the extent to which what some have called the ‘flip side’ crimes should attract the Tribunal’s attention. One view might be that given the existence of two sides in the armed conflict, as the report to the Security Council explained, there should be the same number of defendants from both camps. Most observers would find that to be an absurd suggestion because it would inevitably tend to trivialise the significance of genocide as ‘the crime of crimes’. As a message, it does not seem far removed from a favorite slogan of neo-Nazi skinheads: ‘Dresden – Auschwitz = 0.’ Less objectionable is the idea that somewhere among the cases undertaken by the Tribunal would be what would amount to a small number of symbolic prosecutions aimed at answering the charge that the institution was not totally one-sided. At a conference the author attended in Florence in 2008 hosted by the late Antonio Cassese, a single trial involving three or four defendants was proposed by one participant. No particular justification for this figure was provided. But it was uncannily proportionate to statistics on number of victims. If the Tribunal prosecuted 75 Hutu extremists for a genocide that had 800,000 victims, a banal calculation dictated trials of 3 or 4 Tutsis for crimes against humanity with 30,000 or 40,000 victims. When it criticised the Prosecutor for failing to take a single case before the Tribunal involving the Rwandan Patriotic Front, Human Rights Watch warned that this ‘will undoubtedly taint perceptions of the Tribunal’s impartiality and undermine its legitimacy in the eyes of future generations’.51 Other critics have said that without such prosecutions, the Tribunal cannot meet the objective of contributing to reconciliation.52 Such observations are based upon speculation or intuition, however, and do not seem to rest upon any empirical evidence. The Nuremberg trial punished only one side in the conflict. Can it be said that its legacy has been diminished in the eyes of future generations or that reconciliation in Germany is a failure? The Nuremberg courtroom is an important historical site and museum in Germany, visited by schoolchildren, tourists and pilgrims. The last living prosecutor of the post-war trials at Nuremberg, Benjamin Ferencz, has been decorated with Germany’s highest civilian honour. There can be no serious claim that modern Germany has not adequately

51 Letter [from Kenneth Roth] to the Prosecutor of the International Criminal Tribunal for Rwanda Regarding the Prosecution of RPF Crimes, 26 May 2009. 52 Filip Reyntjens, Political Governance in Post-Genocide Rwanda, (Cambridge University Press, 2013) at 244. 70 Schabas addressed its past. But was reconciliation achieved despite the one-sidedness of Nuremberg? Or did the singular message of the International Military Tribunal actually promote a reconciliation that was based upon a shared narrative about Nazi evil. Possibly the more ‘balanced’ approach to conflicts that some suggest is fundamental to reconciliation would actually have presented a very distorted portrait, at least as far as the Second World War is concerned. The proposition that both sides in a conflict must be prosecuted in order to ensure that justice is delivered effectively is as unsustainable as the search for a formula to determine how many accused from different groups, factions or ethnic groups should be prosecuted. Can it really be a matter of comparing the number of victims by ethnicity and then dividing by the number of defendants, as those participating in the Florence conference seemed to imply? But if not that approach, then how is the right number obtained? Suppose, for the sake of argument, that the Nuremberg trials were really deficient because they did not prosecute leaders of the Allies as well as major Nazis. What would it have taken to correct the situation? A second trial, of 24 Allied defendants? Or perhaps four trials of 24, one trial for each Allied power? What is the magic number needed to balance the equation ‘Auschwitz – Dresden = x’? Perhaps Richard Goldstone, Louise Arbour or Carla del Ponte would have proceeded differently than Hassan Jallow. But the critics are wrong to contend that his approach was unreasonable or improper. With the growth in activity of the International Criminal Court, it has become quite evident that the challenge of case selection that confronted Robert Jackson at Nuremberg and Hassan Jallow at Arusha remains a feature of international justice. It is likely that most situations to be addressed by the International Criminal Court will involve at least two sides. It is also highly probable that although there may be wrongdoing in all quarters, an approach premised on some moral equivalence will distort the search for truth and not enhance it. Many complex factors will dictate the selection of cases, some of them entirely pragmatic while others will be related to major policy issues. In the final analysis, the simplistic proposition that justice requires that both sides in a conflict should be prosecuted, be it out of a concern for fairness to those already accused or an unproven belief that this furthers the objective of reconciliation, does not provide a very helpful guide in this difficult task. chapter 7 The Experience of the Office of the Prosecutor of the International Criminal Tribunal for Rwanda Concerning Arrest Strategies and Lessons Learnt for the Office of the Prosecutor of the International Criminal Court

Phakiso Mochochoko

The arrest and transfer of suspected criminals to a judicial body represent the cornerstone of criminal justice. This truth is especially relevant to international courts and tribunals. Arguably, there can be no justice without the willingness and ability of States to comply with and implement court-issued warrants of arrest. The International Criminal Tribunal for Rwanda (ICTR or “the Tribunal”) and the International Criminal Court (ICC or “the Court”) reflect the critical importance of gaining custody of the suspects and the accused. Given that the statutes of the ICTR1 and the ICC2 prohibit trials in absentia, trial proceedings cannot commence without the presence of the suspects and the accused. Consequently, these judicial bodies cannot provide justice to victims nor establish a historical record of accountability that can serve as a deterrent for would-be perpetrators. More than just a problem of compliance with warrants of arrest, the apprehension of suspects is inherently linked to a court’s ability to fulfil its mandate.3 Despite the irrefutable importance of gaining custody over suspects, the ICTR and the ICC are not endowed with direct powers of arrest. The late Judge Antonio Cassese, former President of the International Criminal Tribunal for the Former Yugoslavia (ICTY), aptly described the inherent difficulty of implementing international criminal justice without direct enforcement

1 Article 20(4)(d) of the ICTR Statute provides that the accused shall “be tried in his or her presence.” 2 Article 63(1) of the Rome Statute provides, “The accused shall be present during the trial.” Article 67(1)(d) also states that the accused, “subject to article 63, paragraph 2, [shall] be present at the trial.” 3 The Special Tribunal of Lebanon (STL) being a notable exception, as it can conduct trial proceedings in the absence of the accused, pursuant to Article 22(1) of its statute.

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_008 72 Mochochoko mechanisms. In his now-famous words, he compared the Tribunals to “a giant who has no arms and no legs. To walk and work, he needs artificial limbs.”4 Per Cassese’s metaphor, the ‘artificial limbs’ are State authorities. His analogy remains equally relevant to other international judicial bodies and illustrates the large extent to which the ICTR and the ICC depend upon State cooperation for the arrest of suspects. Unlike their national counterparts, international judicial mechanisms do not have at their disposal the automatic agency of an international police force with arrest powers. This reality creates an enforcement paradox, whereby the ICTR and the ICC are charged with the important task of investigating and adjudicating persons allegedly bearing the greatest responsibility for mass atrocities, yet these institutions are not directly empowered with the law enforcement tools necessary to complete this task. Instead, States carry out these functions on their behalf, which serve as the proximate source of compliance.5 Thus, although the creation of the ICTR and the ICC responded to a need to combat the most egregious crimes of concern to the international community, States chose to retain the power of enforcement, as the enforcement of international law, including the decisions of international criminal courts and tribunals, require State cooperation. Moreover, whilst non-cooperation with an order by Judges for the surrender or transfer of persons constitutes a violation of a State’s international obligations, the statutes of the ICTR and the ICC do not provide a remedy to enforce compliance. As with arrest, the sanction for non-cooperation is, again, referred to the international community of States, namely the U.N. Security Council or the ICC Assembly of States Parties. As ICC Pre-Trial Chamber II, dealing with the case arising from the situation in Darfur, has repeatedly stressed, “The ICC has no enforcement mechanism and thus relies on the States’ cooperation, without which it cannot fulfil its mandate and contribute to ending impunity.”6 Without the cooperation of States, these institutions risk becoming limbless giants.

4 Antonio Cassese, President, Int’l Crim. Trib. for the Former Yugoslavia, Address at the General Assembly of the United Nations (Nov. 7, 1995). 5 Rod Rastan, “The Responsibility to Enforce: Connecting Justice with Unity,” in Emerging Practice of the International Criminal Court 164 (Carsten Stahn & Göran Sluiter eds., 2009). 6 See e.g., The Prosecutor v. Al Bashir, Case No. ICC-02/05-01/09, Decision of the Pre-Trial Chamber II Regarding Omar Al Balshir’s Potential Travel to the United States of America (Sept. 18, 2013); id., at Decision of the Pre-Trial Chamber Regarding Omar Al-Bashir’s Potential Travel to the Federal Republic of Ethiopia and the Kingdom of Saudi Arabia (Oct. 10, 2013); id., at Decision of the Trial Chamber II on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court (Apr. 9, 2014). Experience of the Office of the Prosecutor of the ICTR 73

In such a system, the possibilities available to these institutions to secure arrests are limited. The Office of the Prosecutor (OTP), the Judges, or the Registry can inform the international community where suspects are located, request their arrest and surrender, and report instances of non-cooperation with the hope and expectation that relevant international bodies will take steps to secure compliance.7 Compliance, therefore, depends on a combination of timely notification, political will, and ability. In some situations, State officials may be ambivalent or even hostile to the issue of arrests. Even where a State is willing to comply, circumstances within the country might constrain its ability to cooperate. The result is that arrests might often be conducted selectively and vary according to the internal processes within each State. The importance of the timely arrest and transfer of suspects cannot be overstated. The damaging impact of non-compliance reaches beyond the prosecutorial mandate of these courts, and a selective record of compliance contaminates the universal justice these institutions are designed to administer. As such, States’ non-compliance with requests to apprehend suspects not only undermines the credibility and effectiveness of the judicial bodies making the request, but also weakens the integrity of the entire Rome Statute System. It is a sad indictment on the international community’s willingness and ability that persons against whom warrants of arrest have been issued by the ICC, allegedly continue to commit crimes in the Central African Republic, Darfur, and the Democratic Republic of the Congo. Joseph Kony and his Lord’s Resistance Army continue to wreak havoc in Central African Republic and the Democratic Republic of the Congo, whilst Ahmed Harun is allegedly responsible for the continuing violence in Darfur. This chapter focuses on the respective experiences of the ICTR-OTP and the ICC-OTP on arrest strategies. What follows provides a reflection on the numerous and varied challenges that the two institutions have faced. The chapter will first identify the particular experiences and challenges faced by the ICTR-OTP, and then will highlight the differences and similarities with the experience of the ICC-OTP. It will argue that a case-specific approach to gaining custody of suspects is essential. Recognising that the international community of States is the sine qua non partner of these judicial bodies, strategies must be tailored to the particularities of the State from which international bodies are trying to secure compliance.

7 Cedric Ryngaert, Arrest and Detention 649–50 (2012). 74 Mochochoko

Experiences of the Office of the Prosecutor of the International Criminal Tribunal of Rwanda

In November 1994, in response to the genocide and mass atrocity in Rwanda, the Security Council established the ICTR “to prosecute persons responsible for serious violations of international humanitarian law” within the territory of Rwanda and neighbouring countries, that occurred between January 1, 1994 and December 31, 1994.8 Pursuant to its Chapter VII powers, the Security Council required Member States to cooperate fully with the Tribunal including by taking “any measures necessary under their domestic law” to meet their obligations towards the Tribunal.9 Article 28 of the ICTR Statute obligates States to “cooperate with the Tribunal . . . in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.” States, therefore, must “comply without undue delay” with any request for assistance or Trial Chamber order in the areas of: a. the identification and location of persons, b. the taking of testimony and the production of evidence, c. the service of documents, d. the arrest or detention of persons, and e. the surrender or the transfer of the accused to the Tribunal.10

A State’s obligation to comply with requests from the Tribunal stems from its membership to the U.N. All members of the U.N. are bound by the principles of the U.N. Charter and are required to “give the United Nations every assistance in any action it takes in accordance with the [U.N.] Charter.”11 Additionally, under Article 25 of the U.N. Charter, Member States agree to accept and carry out the decisions of the Security Council. Under Article 49, Member States are required to “join in affording mutual assistance in carrying out the measures decided upon by the Security Council.”12 By virtue of being established under Chapter VII of the UN Charter, the ICTR came into being as a subsidiary organ of the Security Council, whereby its

8 S.C. Res. 955, annex ICTR Statute, art. 1 (1994) [hereinafter Resolution 955]. 9 Resolution 955, ¶ 2. The cooperation of Member States in the tracking and arrest of fugitives has been reiterated in subsequent U.N. Security Council Resolutions, notably S/RES/978 (1998), S/RES/1503 (2003), and S/RES/1534 (2004). 10 ICTR Statute, art. 28, (1998). 11 U.N. Charter art. 2(5). 12 Id. at arts. 48–49. Experience of the Office of the Prosecutor of the ICTR 75 decisions or requests for assistance were tantamount to decisions or requests by the Security Council itself. Consequently, ICTR judges or its Trial Chamber may “issue such orders, summonses, subpoenas, warrants, and transfer orders as may be necessary for the purpose of an investigation or the preparation or conduct of trial,”13 which represents an authority that is evoked to secure States’ compliance with Article 28 obligations. In a situation where a State does not comply with its Article 28 obligations, the Prosecutor, a Judge, or a Chamber of the ICTR may request that the President of the Tribunal report such non- compliance to the Security Council for further enforcement measures.14 The apprehension and transfer of the suspects to the Tribunal represent a critical area of cooperation between the Tribunal and States. The Office of the Prosecutor of the ICTR engaged with State partners to track, locate, apprehend, and transfer fugitives. It also devoted resources to diplomatic missions to strengthen bilateral ties with States with the objective of securing cooperation that will result in an arrest.15 Since its establishment in 1994, the ICTR has completed its work at trial level with respect to ninety of the ninety-three accused, including fifty-five first-instance judgements involving seventy-five accused, two withdrawn indictments, three indictees who died prior to or in the course of trial, and ten referrals to national jurisdictions.16 Only nine accused remain at-large.17 The Tribunal’s diplomatic efforts have been to some avail, as cooperation by national governments with the ICTR has progressively increased since the Tribunal’s establishment. Over the course of its existence, the ICTR has secured the arrest of indicted persons in Tanzania, Cameroon, Kenya, Benin, Côte d’Ivoire, Namibia, Togo, Zambia, Burkina Faso, Mali, the Democratic Republic of the Congo, South Africa, Belgium, Switzerland, the Netherlands, and the United States.18 According to Prosecutor Hassan Jallow of the ICTR, “State obligations under Article 28 to arrest, detain, and transfer the accused to the Tribunal prevail

13 ICTR R. P. Evid. 54 (2008), at 51. 14 ICTR R. P. Evid. 7bis (2008), at p. 5. 15 See Letter from President of the ICTR to President of the Security Council, S/2008/322, ¶ 43 (May 12, 2008), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/338/64/ PDF/N0833864.pdf?OpenElement. 16 See ICTR Detainees and Convicted Persons – Status 10 July 2014, Int’l Trib. for Rwanda (Jul. 10, 2014), http://www.unictr.org/Cases/StatusofDetainees/tabid/202/Default.aspx. 17 See Cases, U.N. Mechanism for Int’l Crim. Trib. (Oct. 10, 2014), http://unmict.org/en/cases. 18 See About ICTR, Int’l Trib. for Rwanda (Oct. 10, 2014), http://www.unictr.org/AboutICTR/ FactSheets/InternationalCooperationwiththeTribunal/tabid/113/Default.aspx. 76 Mochochoko over any legal impediments under national laws or extradition treaties.”19 A State that is unable to execute an arrest warrant must report its inability and the reasons for it to the Tribunal’s Registrar; the President of the Tribunal may then relay this report to the Security Council.20 In urgent situations, States must immediately comply with requests to arrest a suspect or prevent his or her flight. According to the rules of the Tribunal, States must respond promptly and with due diligence to warrants for the arrest and transfer of the accused.21 The arrest and transfer of suspects is a complicated process, sometimes requiring substantial diplomatic pressure from the Tribunal and the international community, as well as intricate legal battles in national courts. The interaction between the Tribunal and national courts is arguably one of the most important, albeit less visible, aspects of international criminal justice. The transfer of Elizaphan Ntakirutimana by the United States to Arusha for prosecution at the ICTR, illustrates some of the main hurdles relating to transfer requests. Although American authorities ultimately surrendered Ntakirutimana, the U.S. judicial review process reflected a “deficient awareness of the scope of [S]tates’ obligations to comply with request[s?] for cooperation.”22 In this case, difficulties arose when American courts applied domestic standards of proof in the context of an international genocide prosecution. In his remarks on the status and future of State cooperation with the ICTR, Prosecutor Jallow maintained that when a judge in a national system has the discretion to make a probable cause determination, “judges with no understanding of the particularities of international criminal law and the prosecution of genocide may come to misguided conclusions,” which, in turn, may obstruct compliance with arrest and transfer requests.23 Whilst there were judicial proceedings in national courts that resulted in final compliance with arrests and transfer requests,24 time was a serious con- straint for the Tribunal, given its temporary mandate. Proceedings in national systems and diplomatic attempts to persuade recalcitrant States to respect their international obligations under the U.N. Charter also proved time-

19 Hassan Jallow, Remarks on the Status and Future of State Cooperation with the ICTR, OTP Presentation to the NPA Forum, Arusha, 26–28 November, at 6, available at http://www .unictr.org/Portals/0/English/News/events/Nov2008/EN/Future-of-State-Cooperation .pdf. 20 ICTR R. P. Evid. 58, 59, 61 (2008), at 53, 55. 21 ICTR R. P. Evid. 40, 40 bis, 55, 55 bis, 57 (2008), at 31, 33, 51, 53. 22 Jallow, supra note 20, at 7. 23 Id. at 8. 24 See Ntawukuriryayo and Ngirabatware cases, which were transferred from France and Germany, respectively. Experience of the Office of the Prosecutor of the ICTR 77 consuming. Now that the Mechanism for International Criminal Tribunals (MICT or “the Mechanism”) has inherited a number of essential functions previously carried out by the ICTR, securing the arrest, transfer, and prosecution of the nine remaining fugitives still wanted by the ICTR will be a key challenge for the Mechanism.25 This function will rely on the Mechanism’s ability to exert sufficient force to compel States to mobilise their political, administrative, and judicial bodies in order to comply with their international commitments. The ICTR has reported a positive record of cooperation from States. U.N. Member States have assisted the Tribunal in arresting suspects and accused persons and transferring them to the Tribunal’s custody. By contrast, the Rwandan government was less forthcoming on the issue of cooperation with the ICTR, particularly with regard to Rwanda Patriotic Army (RPA) suspects. On July 23, 2002, ICTR Prosecutor Carla del Ponte reported to the U.N. Security Council that the government of Rwanda was refusing to cooperate with the Tribunal, despite its legal obligation to do so established by the Security Council resolution and the Statute of the Tribunal. According to the Prosecutor, problems of non-cooperation emerged shortly after she announced that the Tribunal would indict several members of the RPA for atrocities committed in 1994.26 Under Resolution 955 (1994), the Security Council empowered the Tribunal to investigate such crimes. Although the Rwandan government agreed that crimes were committed, it said that it was or would conduct its own prosecutions.27 In order to understand why the Rwandan government was reticent with its cooperation, it is necessary to understand the legal interplay between the Tribunal and Rwandan courts. Resolution 955 stressed the need to strengthen the judicial system of Rwanda. To this end, it mandated that national proceedings occur where possible, thus encouraging that proceedings in relation to different cases by the Rwanda Tribunal and national courts occur concurrently.28

25 Preamble to Statute of the International Residual Mechanism for Criminal Tribunals, Resolution 1966 ¶ 10, Dec. 22, 2010, S/RES/1966. 26 Letter from Kenneth Roth, Exec. Dir., and Joanna Weschler, U.N. Rep, Human Rights Watch to Security Council Members, Action urged regarding non-cooperation with ICTR and ICTY (Oct. 26, 2002), available at http://www.hrw.org/news/2002/10/25/ action-urged-regarding-non-cooperation-ictr-and-icty. 27 Id. 28 Article 8(1) of the ICTR Statute provides that, “The International Tribunal for Rwanda and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens for such violations committed in the territory of the neighbouring States, between 1 January 1994 and 31 December 1994”. See also Neil J. Kirtz, Bernard Muna, 78 Mochochoko

However, even though the two jurisdictions operated concurrently, the Statute granted primacy to the Tribunal’s jurisdiction in relation to specific cases that were the subject of proceedings before the ICTR.29 The hurdles in cooperation between Rwandan courts and the ICTR appear, thus, to have resulted from at least two factors: first, that the ICTR Statute privileged the Tribunal’s jurisdiction above the national courts; and, second, Rwandan authorities sought to have ownership over the prosecution of their own nationals.

Challenges Faced by the Office of the Prosecutor of the International Criminal Court

The ICC was established as a permanent, international institution to investigate and prosecute the “most serious crimes of international concern,” with the hope that adjudicating mass atrocity crimes – such as crimes of genocide, war crimes, and crimes against humanity – would help close the impunity gaps that allow these crimes to occur in the first place, and, thus, contribute to preventing their reoccurrence in the future. The ICC can either issue a warrant of arrest or, if the suspect’s appearance can be secured without arrest, a summons to appear.30 As of end April 2014, the ICC-OTP has publicly obtained thirty-nine decisions requiring the appearance of suspects (comprising twenty-seven arrest warrants and nine summonses to appear) for thirty-six persons allegedly involved in the commission of international crimes and the obstruction of justice in the eight situations currently under investigation.31 Article 89 allows the Court to request cooperation in the arrest and surrender of a suspected criminal from any State party on the territory of which the person may be found. The issue of arrest is one of the most pressing challenges facing the Court, and lies at the heart of the legitimacy and

Navanethem Pillay, & Theogene Rudasingwa, “The Rwanda Tribunal and its Relationship to National Trials in Rwanda”, 13 Am. U. Int’l L. Rev. 1469, 1471 (1998). 29 Id. at 1474. 30 Under Article 58 of the Rome Statute, an arrest warrant is issued publicly or under seal when the arrest of the person appears necessary to ensure the person’s appearance in trial, to ensure the person does not obstruct the investigation or court proceedings, or to prevent the person from continuing with the commission of crimes. Under Article 58(7), in the alternative, the Chamber may issue a summons to appear “if the Pre-Trial Chamber is satisfied that there are reasonable grounds to believe that the person committed the crime alleged and that a summons is sufficient to ensure the person’s appearance”. 31 Some persons face two separate warrants of arrest issued sequentially for different charges. Experience of the Office of the Prosecutor of the ICTR 79 credibility of the institution. Only fourteen of the twenty-seven arrest warrants have been implemented, and eight persons are in custody. Nine summonses to appear were also issued, all of which have been implemented. Ten of the ICC suspects remain at-large;32 two have been arrested by the relevant State, but have not yet been transferred to the custody of the Court pending admissibility determinations by the Court;33 and three persons have died before being arrested.34 The ICC faces many challenges with regard to the execution of its arrest warrants. First, the Rome Statute limits the power of the Court to take enforcement action independently without the cooperation of the relevant State. Accordingly, the Rome Statute places the obligation of the execution of arrest warrants on “any State.”35 As the former president of the ICC Philippe Kirsch noted in his 2006 address to the Assembly of States Parties (ASP), the Rome Statute created a system consisting of two pillars: a judicial pillar, embodied by the Court itself, and an enforcement pillar, relying on States.36 Given the absence of an international enforcement agency, the Court’s requests must be implemented by States, which, thus, makes the ICC depend on States for the execution of arrest warrants and the surrender of suspects or accused persons. Second, in the absence of an ad hoc arrangement, agreement, or other basis (such as a Security Council resolution adopted under Chapter VII), non-States Parties and international institutions have no obligation to cooperate with the Court regarding its requests for arrest and surrender, although they may be requested to do so.37

32 These are: Joseph Kony, Okot Odhiambo (situation in Uganda); Sylvestre Mudacumura (situation in the Democratic Republic of the Congo); Ahmad Muhammad Harun, Abdel Raheem Muhammad Hussein, Omar Hassan Ahmad Al Bashir and Ali Muhammad Ali Abd-Al-Rahman (situation in Darfur, Sudan); Walter Osapiri Barasa (situation in the Republic of Kenya); Saif Al-Islam Gaddafi (situation in Libya); Simone Gbagbo (situation in Côte d’Ivoire). 33 These are: Saif Al-Islam Gaddafi (situation in Libya), and Simone Gbagbo (situation in Côte d’Ivoire). 34 These are: Raska Lukwiya (situation in Uganda), Vincent Otti (situation in Uganda), and Muammar Gaddafi (situation in Libya). 35 ICC Stat. art. 89. 36 Philippe Kirsch, President, ICC, Address at the Assembly of States Parties (2006) (transcript available at http://www.icc-cpi.int/library/organs/presidency/PK_20061123_ en.pdf). See also Rod Rastan, “Testing Co-operation: The International Criminal Court and National Authorities”, 21 Leiden J. Int’l L. 431 (2008) (citing President Kirsch’s speech). 37 ICC Stat. art. 87(5). 80 Mochochoko

Third, States may be reluctant to cooperate with the Court, particularly when the person concerned is a senior State official or powerful non-State actor, even though such States may be under a legal obligation to do so. This observation has been especially visible in the Sudanese situation. Fourth, the only remedy available to the Court in cases of non-compliance is Article 87, which provides for the ICC judges to make a finding of non- cooperation and refer the matter to the ASP and/or the Security Council, as appropriate. This power has been exercised in the past;38 however, to-date it

38 In the Prosecutor v. Al Bashir case, the Pre–Trial Chamber Judges made several findings on non-cooperation. These include, in reverse chronological order: one regarding the Republic of Congo (Al-Bashir, Case No. 02/05-01/09, Decision of the Pre-Trial Chamber on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court (noting that “Since the DRC has failed to cooperate with the Court with regard to the arrest and surrender of Omar Al Bashir, thus preventing the institution from exercising its functions and powers under the Statute, the Court cannot but refer the matter to the Assembly of States Parties and the Security Council”)). Three regarding the Republic of Chad (Al-Bashir, Case No. 02/05-01/09, Decision of the Pre-Trial Chamber on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir (Mar. 26, 2013) (noting that “Since the Republic of Chad has failed to cooperate with the Court with regard to the arrest and surrender of Omar Al-Bashir, thus preventing the institution from exercising its functions and powers under the Statute, the Court cannot but refer the matter to the Assembly of States Parties and the Security Council”); id., Decision of the Pre-Trial Chamber pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir (Dec. 13, 2011) (noting that “the Republic of Chad has failed to comply with the Cooperation Requests contrary to the provisions of the Statute and has thereby prevented the Court from exercising its functions and powers under the Statute. The Chamber decides to refer the matter both to the United Nations Security Council and to the Assembly of States Parties”); id., Decision of the Pre-Trial Chamber informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad (Aug. 27 2010) (“consider[ing] it appropriate to inform the Security Council of the United Nations as well as the Assembly of States Parties to the Rome Statute about the recent visit of Omar Al-Bashir to the Republic of Chad, in order for them to take any action they may deem appropriate”)). One regarding the Republic of Malawi (Al-Bashir, Case No. ICC-02/05-01/09, Decision of the Pre-Trial Chamber Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (Dec. 12, 2011) (noting that “the Republic of Malawi has failed to comply with the Cooperation Requests contrary to the provisions of the Statute and has thereby prevented the Court Experience of the Office of the Prosecutor of the ICTR 81 has triggered only limited action by the ASP or the Security Council, and it has failed to result in collective action by the international community to ensure cooperation from the relevant State. In this regard, it is notable that the ASP and its previous President, Ambassador Tiina Intelmann, regarding non-cooperation, attempted various efforts. These included, in particular, the development of procedures to deal with non-cooperation at the tenth and eleventh sessions of the ASP; the appointment of regional focal points on the issue; as well as public and diplomatic actions taken by the ASP President in recent instances, notably with Chad and the Democratic Republic of the Congo in 2014, to “enhance the implementation of the Court’s decisions.”39 The Court has also provided timely information to the ASP President regarding potential and averred instances of non-cooperation.

from exercising its functions and powers under this Statute. The Chamber decides to refer the matter both to the United Nations Security Council and to the Assembly of States Parties”). One regarding the Republic of Djibouti (Al-Bashir, Case No. ICC-02/05-01/09, Decision of the Pre-Trial Chamber informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti (May 12, 2011) (“consider[ing] it appropriate to inform the Security Council of the United Nations as well as the Assembly of States Parties to the Rome Statute about the recent visit of Omar Al-Bashir to Djibouti, in order for them to take any action they may deem appropriate”). One regarding the republic of Kenya (Al-Bashir, Case No. ICC-02/05-01/09, Decision of the Pre-Trial Chamber informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the Republic of Kenya (Aug. 27, 2010) (“consider[ing] it appropriate to inform the Security Council of the United Nations as well as the Assembly of States Parties to the Rome Statute about the expected attendance of Omar Al-Bashir at the celebration scheduled for Friday 27 August in order for them to take any action they may deem appropriate, should such attendance be confirmed”). Lastly, in the Prosecutor v. Harun & Abd-Al-Rahman case, Pre-Trial Judges made one finding on non-cooperation. This was regarding the Republic of Sudan. (Prosecutor v. Harun & Abd-Al-Rahman, Case No. ICC-02/05-01/07, Decision of the Pre-Trial Chamber informing the United Nations Security Council about the lack of cooperation by the Republic of the Sudan (May 25, 2010) (“consider[ing] that by virtue of Security Council Resolution 1593 (2005), when the Republic of the Sudan fails to cooperate with the Court, thereby preventing the Court from executing the task entrusted to it by the Security Council, the Court has the inherent power to inform the Security Council of such a failure”). 39 ICC Assembly procedures relating to non-cooperation, ICC-ASP/10/Res.5, annex., available at http://www.icc-cpi.int/iccdocs/asp_docs/Non-coop/ICC-ASP-10-Res.5-extract- annex-ENG.pdf. 82 Mochochoko

Differences in the temporal and territorial jurisdictions of the Tribunal and the Court are also important considerations when evaluating experiences with arrest strategies. The ICTR judges those most responsible for the Rwandan genocide and other serious violations of international law in Rwanda, or by Rwandan citizens in nearby States, between January 1 and December 31, 1994. The ICC’s jurisdiction, by contrast, is not limited to one country, citizenship, or fixed period of time. The Court can exercise its jurisdiction under the following circumstances: where the person accused of committing a crime is a national of a State party (or where the person’s State has accepted the jurisdiction of the Court); where the alleged crime was committed on the territory of a State party (or where the State on whose territory the crime was committed has accepted the jurisdiction of the Court); or where the U.N. Security Council refers a situation to the Court pursuant to its Chapter VII rights.40 Given that there are 122 member States, that any State can refer a situation to the Court, and that the U.N. Security Council may pass a resolution regarding a situation in any State, the territorial jurisdiction of the ICC is far wider than that of the ICTR, which means that the ICC must engage with several national authorities and interact with multiple national jurisdictions in order to secure its arrest warrants. Additionally, unlike the ICTR, the ICC does not have a planned termination date at which point its jurisdiction will expire. The ICC’s temporal jurisdiction applies to crimes committed on or after July 1, 2002, and extends perpetually into the future. Where a State becomes party to the Rome Statute after that date, the Court can exercise jurisdiction automatically with respect to crimes committed after the Statute enters into force for that State.41 The ICTR dealt with only one situation and after crimes had been committed. As such, the Tribunal investigated and prosecuted high-level as well as middle-level perpetrators, several of whom fled and had to be tracked. By contrast, given the ICC’s more expansive territorial and temporal jurisdiction, the Court deals with fewer perpetrators per situation, typically targeting the most responsible for crimes that have happened or are on-going. Consequently, of the twelve currently outstanding arrest warrants, at least six individuals can be easily located.

40 The Rome Statute arts. 12–14. 41 Id. at art. 11. Experience of the Office of the Prosecutor of the ICTR 83

Current Status of Arrests Strategies at the International Criminal Court and the Role of States Parties

The arrest and surrender of persons against whom arrest warrants have been issued by the ICC is one of the key elements of States Parties’ cooperation with the Court. Indeed, provisions relating to arrest and surrender are a core element of Part 9 regarding “International Cooperation and Judicial Assistance” of the Rome Statute. In its 2013 Report on Cooperation for the twelfth session of the Assembly of States Parties, the Court noted, “Failure to arrest [perpetrators of mass crimes] emboldens them and potential future perpetrators, and fuels the perception that they can remain beyond the reach of the Court and perpetrators can continue to commit crimes with impunity.”42 In addition to highlighting the damage done by unexecuted arrest warrants on the ICC itself and the global commitment to ensuring accountability for the worst international crimes, the Court noted in the same report, “[T]here are costs related to preserving evidence, maintaining contact with witnesses, monitoring security and mitigating threats [to victims and witnesses]. These costs will continue to run for as long as the relevant cases cannot be presented to the Judges.”43 States Parties themselves have recognised the importance of arrests in various documents. In the Bureau Report on Cooperation, dated October 19, 2007, States Parties recognise that “[a]rrest and surrender of persons wanted by the Court remains a crucial issue. The Court cannot fulfil its mandate without it, as there can be no trials without arrest. The Rome Statute is a two-pillar system, and the Court depends on States parties for the implementation of arrest warrants.”44 The 2013 Report on Cooperation continues to say that the Court, too, systematically and consistently highlights the challenges it faces with regard to arrest and surrender, emphasising that cooperation with States in this regard “continues to be a missing component for the effective implementation of the Court’s mandate.”45 Importantly, the Cooperation Report identified arrest strategies as one of the four thematic priority areas. Investigations are carried out at substantial cost, under difficult circumstances, and often in on-going conflict situations, entailing great sacrifices to

42 Rep. of the Ct. on Cooperation, Assembly of States Parties, Oct. 2011–Sept. 2013, ICC- ASP/12/35, ¶ 14 (Oct. 9, 2013). 43 Id. at ¶ 64. 44 Rep. of the Bureau on Cooperation, Assembly of States Parties, Feb 1, 2006, ICC-ASP/6/21 (Oct. 19, 2007). 45 Rep. of the Ct. on Cooperation, Assembly of States Parties, ICC-ASP/10/40 (Oct. 9, 2013). 84 Mochochoko witnesses, victims, and staff of the Court. Judges of the Court carefully assess and analyse all evidence presented to them by the Office of the Prosecutor in order to decide whether to issue warrants of arrest against certain individuals. Failure to arrest these individuals emboldens them and other potential perpetrators, and encourages the perception that they can remain beyond the reach of the Court and can, thus, continue to commit crimes with impunity. This risks weakening the Rome Statute system in general and the Court in particular, tarnishing its image and credibility. LRA crimes reportedly continue to be committed under the same leadership in the Central African Republic and the Democratic Republic of the Congo; and in the Ituri and Darfur regions of the DRC and Sudan, respectively, crimes reportedly linked to persons against whom arrest warrants have been issued by the Court also continue. The lack of arrests allows killings and rapes to multiply with no end in sight to the suffering of victims.46 As such, beyond recognising the importance of arrests, it is vital that States consider tangible and concrete measures to make such arrests a reality. In this regard, the need for States Parties to work together to develop further efforts made so far and to make meaningful steps to ensure arrests is clear.47

Lessons Learnt and Best Practices for the Office of the Prosecutor of the International Criminal Court

Cooperation from States Parties with regard to arrest falls into two general categories: operational and technical assistance on the one hand, and general political support on the other.48 It is recognised that the issue of arrest and surrender is not simple and the challenges involved will vary from situation to situation. Situations where suspects are protected by militias present essentially a practical operational challenge, whereas situations where the whereabouts of suspects is well known, but a State lacks the political will to fulfil its legal obligation to cooperate with the Court, present a challenge where high-level political commitment and diplomatic coordination between many States, for example to achieve initial marginalisation and political isolation, will be required. Approaches need to be tailored to fit the particular circumstances of each situation. This is borne out by experiences elsewhere, as Charles Jalloh’s chapter on the travails of arresting former Liberian President Charles Taylor by the Sierra Leone Special Court amply demonstrates (in Chapter 16 of this volume).

46 Rep. of the Ct. on Cooperation, Assembly of States Parties, supra note 45, at ¶ 14. 47 Id., at ¶ 15. 48 Rep. of the Bureau on Cooperation, Assembly of States Parties, supra note 45, at ¶ 39. Experience of the Office of the Prosecutor of the ICTR 85

The ICC Office of the Prosecutor presented arrest guidelines to States, as published in its Prosecutorial Strategy for 2009–201249 and in the 2009 Report of the Court on International Cooperation and Assistance. Given the centrality of arrest warrants to the Court’s success, the ASP in a consensus resolution on cooperation “acknowledge[d] that concrete steps and measures to securing arrests needed to be considered in a structured and systematic manner, based on the experience developed in national systems, the international ad hoc and mixed tribunals, as well as by the Court.”50 States Parties can exchange views on how they can effectively contribute to generating political support and momentum for the timely arrest and surrender of suspects through bilateral contacts and activities in regional and international organisations.51 States parties can also explore possibilities for the provision of technical assistance and support to a State on whose territory suspects are located, such as through information-sharing and specialised training of law enforcement personnel.52 Discussions could also focus on additional concrete suggestions, such as sharing experiences and lessons learnt on issues relating to arrest and transfer.53 Building on experiences with securing arrests at the ad hoc tribunals, States Parties could also seek to identify and use effective leverage points, such as economic avenues, to foster cooperation and promote arrests. The inclusion of commitment to take steps towards Rome Statute ratification and implementation in the E.U.’s Cotonou agreement54 with ACP States could serve as a positive and instructive model for consideration.55 Given the nature of the crimes the Court deals with, as well as the often prominent role of the individuals facing outstanding arrest warrants, these individuals tend to cross borders around the area(s) where they are believed to have committed crimes. The Court has thus stressed the need for enhanced discussions and coordination at the political and technical levels between States in the context of regional and sub-regional organisations, in order to improve prospects of arrest. The Court has regularly interacted and enhanced its

49 The Office of the Prosecutor, OTP Prosecutorial Strategy 2009–2012 (2010), available at http://www.icc-cpi.int/NR/rdonlyres/66A8DCDC-3650-4514-AA62-D229D1128F65/281 506/OTPProsecutorialStrategy20092013.pdf 50 ICC Res. ICC-ASP/12/Res.3, Res. of the Assembly of States Parties on Cooperation, ¶ 4. 51 Rep. of the Bureau on Cooperation, ICC-ASP/6/21, Recommendation 17. 52 Id. at Recommendation 20. 53 Id. at Recommendation 21. 54 Cotonou Agreement art. 11(6), Jun. 23, 2000, available at http://europa.eu/legislation_ summaries/development/african_caribbean_pacific_states/r12101_en.htm. 55 Rep. of the Ct. on Cooperation, Assembly of States Parties, supra note 43, at ¶ 24. 86 Mochochoko dialogue with relevant regional groups and organisations in order to strengthen cooperation and ensure better understanding for its mandate and needs.56 Opportunities for improving chances of arrest also exist through action by States in the United Nations context, in particular through the activities of the Security Council, which has the potential to play an active and positive role in ensuring the execution of arrest warrants, as was made clear during the Open Debate of the October 17, 2012 U.N. Security Council on Peace and Justice, focusing on the role of the ICC. For example, U.N. Security Council resolutions articulating the mandate of U.N. peacekeeping forces in the DRC (first MONUC, now MONUSCO) have “reiterat[ed] the urgent need for the swift prosecution of all perpetrators of human rights abuses and international humanitarian law violations”,57 thereby linking criminal justice and the ICC directly with the coordinated activities aimed at addressing the security situation in the DRC and providing assistance to victims. A similar approach should also be taken in the context of peacekeeping missions in other areas where the Court is active, for example in Mali, where the U.N. Security Council included in the resolution authorizing a peace enforcement operation58 a request for support (in the event that an ICC investigation is opened), by this international military force to both the national authorities as well as the ICC.59 Over the course of 2013–2014, the Assembly of States Parties considered the Arrest Strategy Roadmap60 with the intention of developing an action plan at the thirteenth session of the ASP in December 2014. The ASP has established a Rapporteur for this issue in the context of The Hague Working Group facilitation on cooperation during its twelfth session in November 2013. The purpose of the Roadmap was to produce ‘an operational tool to enhance the prospect that requests of the Court for arrest and surrender are expeditiously executed’.61 The outcome of this process was to be based on the knowledge and practice gathered throughout the past decade of the Court’s existence,

56 Id. at ¶ 25. 57 S.C. Res. 2053, U.N. Doc. S/RES/2053 (June 27, 2012). 58 S.C. Res. 2100, U.N. Doc. S/RES/2100 (Apr. 25, 2013). 59 See page 8 of the Resolution: “To support, as feasible and appropriate, the efforts of the transitional authorities of Mali, without prejudice to their responsibilities, to bring to justice those responsible for war crimes and crimes against humanity in Mali, taking into account the referral by the transitional authorities of Mali of the situation in their country since January 2012 to the International Criminal Court”. 60 Rep, of the Bureau on Cooperation, Assembly of States Parties, ICC/ASP/12/36 (Nov. 21, 2013). 61 Assembly of States Parties, Annex IV, ICC-ASP/12/36. Experience of the Office of the Prosecutor of the ICTR 87 relying on the “experience of relevant actors [to] drive the identification of concrete measures to facilitate the enforcement of the Court’s request for cooperation.”62 The Roadmap anticipated two phases, one covering the period before June 2014 and the other extending until the Thirteenth Session of the ASP in December. The first phase mainly concerned collecting and analysing the practices, both positive and negative, of States, international tribunals, and other international and intergovernmental organisations. The elements of analysis are location (i.e., the presence of the person and the obligation of the State in which he or she is located); the capacity of the State where the person is located, including control of the territory and technical capacity; and the status of the person being sought by the Court (i.e. whether the person holds an official position in the State government or whether he or she is already detained by local authorities).63 The efforts of the Rapporteur in researching and analyzing these practices resulted in a comprehensive Report on Arrest Strategies, providing for recommendations to establish a comprehensive arrest strategy for the ICC.64 The second phase of the Roadmap entailed an Action Plan, based on and annexed to the Report of the Rapporteur, containing measures States Parties and other cooperating actors might pledge to undertake. These measures include, for example, incentives to States and/or persons with the goal of promoting voluntary, positive approaches for the arrest and surrender of suspected criminals. Such incentives would include conditionality policies for political, economic, security, or social benefit, as well as individualised assurances and arrangements, like assistance during proceedings and facilitation of family visits. Additionally, the Action Plan prescribes actions aimed at isolat- ing, tracking, and arresting the indicted person, or exerting pressure on States. During 2015, the States Parties are still discussing the draft Action Plan in The Hague Working Group of the Assembly of States Parties, with a view to finding consensus, and, if possible, adoption of the Action Plan at the 14th Session of the Assembly of States Parties. The means for fostering such support are varied: they can be political, diplomatic, police-related, or technical.65 Political means include public statements at the U.N. and other multilateral bodies as well as bilateral and multilateral meetings, public statements, resolutions, and peacekeeping resolutions that proactively express support for the enforcement of the Court’s decisions and

62 Id. 63 Id. 64 ICC-ASP/13/29/Add.1, 21 November 2014. 65 Id. 88 Mochochoko stress the need for cooperation with the Court. States are encouraged to promote clear, strong mandates to assist with the arrest of any individual subject to ICC arrest warrants. Diplomatic support should include intensified and coordinated efforts to isolate suspects by curtailing all non-essential contacts with them. Ensuring a coordinated approach with other actors on the ground, including all relevant States and international and regional organisations, is essential. When a State Party expects to receive a person against whom an arrest warrant has been issued, the Court and other cooperative actors can engage proactively with them and relevant third parties in an effort to discourage such contact and remind the receiving State of its obligations under the Rome Statute to observe and implement ICC arrest warrants. Furthermore, diplomatic efforts could extend to efforts to include the issue of arrests and surrender on the agendas of bilateral and multilateral meetings. Police support entails training local law enforcement personnel and providing special programmes to enhance State capacity to implement arrest warrants. Technical assistance suggested in the Action Plan include embedding staff members in national police forces or gratis personnel provided to the Court, mixed teams, or the contribution of qualified staff by a State or through a catalyst entity, such as Justice Rapid Response or regional organisations. Additionally, information exchanges and communication with relevant actors such as national decision-makers and diplomats are essential to enhance coordination and to maximise the potential for implementing arrest warrants.66

Conclusion

Like the ICTR before it, the ICC relies on the full cooperation of States, not least in implementing arrest warrants, in order to fulfil its mandate. Although the ICTR and the ICC differ in terms of their respective territorial and temporal jurisdictions, in addition to the legal framework under which they operate, what is common to both is that neither institution is endowed with an enforcement mechanism to ensure compliance with its requests. Admittedly, the record of State cooperation, particularly with warrants for the arrest and surrender of suspects and the accused, is punctuated with instances of political unwillingness on the part of States to comply with their international obligations as well as challenges inherent in identifying and locating those against whom arrest warrants have been issued.

66 Id. Experience of the Office of the Prosecutor of the ICTR 89

It is important to underscore once again the critical need for the active cooperation and participation of the Member States of the United Nations and States Parties to the Rome Statute. Indeed, it would be a miscarriage of justice if such known perpetrators were to evade justice because of lack of arrest. As the Court operates in several countries with varying situational constraints, a case-specific approach that recognises these variations is to be preferred over rigid strategies of one-size-fits-all. The ICC, States Parties, the U.N. Security Council, the international community, and civil society must work together to harmonise the toolbox of coercive measures at the disposal of the Rome Statute system and, simultaneously, appeal to national self-interests, reputational costs, and issue-linkage strategies to enhance compliance.67 The ICC and the enterprise of international justice require States to enforce arrest warrants. This is the only way to realize the ICC’s potential to contribute to ending impunity and enhancing its deterrent impact.

67 The latter may include; the conclusion of bilateral agreements on specific issues, provision of financial aid, or joining of a sub-regional, regional or an international institution.

Part 3

Institutional Dimensions of International Criminal Justice

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chapter 8 The ICC’s Twelfth Anniversary Crisis: Growing Pains or Institutional Deficiency?

M. Cherif Bassiouni*

Introduction

All judicial institutions go through an initial growth phase during which they face different challenges.1 The ICC is in its twelfth year of existence (2002–2014), and it faces challenges arising out of the ordinary course of business and others as a crisis of confidence. Institutionally, it faces both of these challenges. However, no matter what the challenges and issues are, the ICC, through its institutional leaders, needs to overcome in a way that eliminates doubts, because, by end of 2014, only the ICC will remain as an international institution administering international criminal justice. The “Cascade of Justice” as one author referred to it,2 has come to an end. By the end of 2014, the ICTY and ICTR will be winding down their activities.3 Some of the mixed-model tribunals have already ended their activities, and others will also be winding down their activities by the end of 2014.4 They include: Regulation 64 Panels in the Courts of Kosovo (closed), the Special Panels of the Dili District Court, also called the East Timor Tribunal (closed), the Special Court for Sierra Leone (closing in 2014), the Extraordinary Chamber in the Courts of Cambodia (closing in 2014), and the Special Tribunal for Lebanon (for all practical purposes has not started and is likely to end soon as well).5

* This chapter reflects developments up to December 2013. 1 See, e.g., Henry Wigmore, A Panorama of World Legal Systems (West Publishing Co., 1928); Jacques Ellul, Histoire des Institutions et des Faits Sociaux (Presse Universaitaires de France 1955); Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750: The Movement for Reform, 1750–1833, Vol. 1 (Macmillan Company, 1948). 2 Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions are Changing World Politics (W. W. Norton & Co., 2011). 3 S.C. Res. 2080, U.N. SCOR, 6885th mtg., U.N. Doc S/Res/2080 (2012) (regarding the completion of ICTR activities); S.C. Res. 2081, U.N. SCOR, 6889th mtg., U.N. Doc. S/Res/2081 (2012) (regarding the completion of ICTY activities). 4 See supra note 2. 5 Id. at 721–84.

The objective record of the ICC is subject to scrutiny, and friend and foe alike are assessing its achievements and its operations and costs. Such an assessment is necessary and desirable, as it is with respect to any judicial institution be it national or international. State parties are concerned about the effectiveness and efficiency of the ICC and in particular, its high costs and large staff. The ICC’s budget for 2013 was 112,039,600 Euros (approximately 151,712,822 USD), operating with a staff of 690 persons, 151 persons on General Temporary Assistance, 65 consultants or contractors and 118 interns or visiting professionals.6 In 2012, its budget was 108,800,000 Euros (approximately 147,326,080 USD), operating with 696 persons on staff, 169 persons on General Temporary Assistance, 33 consultants or contractors, and 77 interns or visiting professionals.7 The cumulative budget of the ICC in its 14 years existence is around 830 million Euros (approximately 1.12 billion USD).8 The average approximate cost per indictment at the ICC is 29.5 million Euros (approximately 39,945,950 USD).9 The ICTY and ICTR have averaged a cost of nearly 11 million Euros (14,895,100 USD) per defendant.10 Indeed, there are good reasons to be concerned about the high costs of international criminal justice. State parties are also skeptical about the ICC’s prosecutorial policies and practices, the competencies and judicial experience of the Judges, and the effectiveness of the Registrar’s operations. The first of these concerns focuses on regional prosecutorial selectivity, which raises questions not only about fairness and even-handedness, but also whether the ICC is capable of exercising its functions as an international judicial institution without regard to countries’ positions of power. The ICC’s record speaks for itself. Between 2002 and December 2013, the ICC has opened 21 cases with 26 defendants; all of them, however, have involved African states and African defendants.11 This includes the two referrals by the Security Council, namely with respect to the Sudan12 and Libya.13 Geographically, Libya is in Africa, but

6 Int’l Crim. Ct., Figures from Registry as of 30 April 2013, http://www.icc-cpi.int/iccdocs/db/ Registry-Figures-30-April-2013.pdf (last visited Jan. 18, 2014). 7 Int’l Crim. Ct., Figures from Registry as of 31 August 2012, http://www.icc-cpi.int/en_menus/ icc/reports%20on%20activities/court%20reports%20and%20statements/Documents/ RegistryFigures31August2014.pdf (last visited Jan. 18, 2014). 8 M. Cherif Bassiouni, Introduction to International Criminal Law 1031 (2d ed. 2013). 9 Id. 10 Id. 11 Int’l Crim. Ct., Situations and Cases, http://www.icc-cpi.int/en_menus/icc/situations%20 and%20cases/Pages/situations%20and%20cases.aspx (last visited Jan. 18, 2014). 12 S.C. Res. 1593, U.N. SCOR, 5158th mtg., U.N. Doc S/Res/1593 (2005). 13 S.C. Res. 1970, U.N. SCOR, 6491st mtg., U.N. Doc S/Res/1970 (2011). The ICC’s Twelfth Anniversary Crisis 95 it is not part of sub-Saharan Africa, although it is part of the African Union. In Libya, the referral has resulted in two indictments for Saif al-Islam Gaddafi and Abdullah al-Senussi.14 For Darfur, there are five pending indictments for Ahmad Harun, Ali Kushayb, Omar Al Bashir, Bahar Idriss Abu Garda, Abdallah Banda Abakaer Nourain and Abdel Raheem Muhammad Hussein. Another indictment had been issued for Saleh Mohammed Jerbo, but proceedings against him were terminated in October of 2013 after receiving evidence that Mr. Jerbo had been killed.15 Of the cases pending before the Court, two of them involve sitting heads of states: Uhuru Kenyatta of Kenya and Omar Al Bashir of the Sudan. There have been investigations in other regions, but none of them have resulted in the issuing of any indictments.16 With respect to these two referrals, the vote in the Security Council was telling. For the Darfur referral, it was eleven for, zero against, and four abstentions.17 For Libya, the Security Council voted unanimously to refer the situation to the ICC prosecutor.18 Another issue of international concern arises with respect to what is deemed “the most serious crimes of international concern.” The Darfur situation, which was referred to the Court by Security Council Resolution 1593,19 falls within the meaning of “the most serious crimes of international concern” (Article 1) in that during the war between the north and west between 2003– 2005, 1.65 million people were internally displaced, and over 200,000 refugees were forced to flee to the neighboring country of Chad.20 While the number of deaths resulting from the 2003–2005 conflict is unknown, it is estimated to surpass 100,000.21 However, the situation with respect to Kenya, which was self- referred, is different in that the estimated number of victims is 1,200 persons

14 Libya: From Repression to Revolution, A Record of Armed Conflict and International Law Violations, 2011–13 (M. Cherif Bassiouni, ed., 2013). 15 Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Case No. ICC-02/05-03/09, Decision Terminating the Proceedings Against Mr Jerbo, pp. 10–12 (Oct. 4, 2013). 16 See supra note 10. 17 See supra note 12. 18 See supra note 13. 19 See supra note 12. 20 Int’l Comm’n of Inquiry on Darfur, Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General: Pursuant to Security Council Resolution 1564 of 18 September 2004, para. 226 (Jan. 25, 2005), available at http://www.unrol.org/files/ com_inq_darfur.pdf. 21 Human Rights Watch, Targeting the Fur: Mass Killings in Darfur 2 (2005), available at http://www.hrw.org/legacy/backgrounder/africa/darfur0105/darfur0105.pdf. 96 Bassiouni dead with 118,000 persons displaced.22 Both referrals resulted from inter-tribal violence that occurred some seven years ago. Does this qualify for “the most serious crimes of international concern”? The Kenyan situation does not, especially in comparison to the Darfur situation and especially in light of the Security Council’s failure to refer the Syria situation to the ICC despite the fact that the estimated number of victims ranges from 100,000–200,000 and the number of internally displaced and refugees ranges from 2 to 3 million.23 The Kenya case may well have been an improvident action by the ICC Prosecutor, Luis Moreno-Ocampo, but it was also the drop that made the glass overflow. Indeed, every case brought to trial since 2002 is about an African situation to the exclusion of all other situations arising in other geopolitical contexts. Suffice it to mention Iraq, Afghanistan, Georgia, and Chechnya, where a large number of crimes have been reported, but no investigations, let alone prosecutions, took place. But one cannot help but observe that the first two conflicts involved the U.S. and the latter two involved Russia.24 But crimes that do not involve superpowers have also been reported in Sri Lanka and Burma. This led the African Union (AU) on 12 October 2013 to ask the Security Council to stop the proceedings against sitting heads of state of Africa stating: “[t]hat to safeguard the constitutional order, stability and, integrity of Member States, no charges shall be commenced or continued before any International Court or Tribunal against any serving AU Head of State or Government or anybody acting or entitled to act in such capacity during their term of office.”25 On 15 November 2013, the Security Council elected by omission not to suspend the proceedings.

22 “Cases & Situations: Kenya,” Coalition for Int’l Crim. Ct., http://www.iccnow.org/?mod= Kenya (last visited Jan. 18, 2014). 23 “Syria Regional Refugee Response,” U.N. High Comm’r for Refugees, http://data.unhcr.org/ syrianrefugees/regional.php (last visited Jan. 18, 2014). 24 See generally Stephen Hopgood, The Endtimes of Human Rights (Cornell U. Press, 2013); M. Cherif Bassiouni, “Challenges Facing a Rule-of-Law-Oriented World Order,” 8 Santa Clara J. Int’l L. 1 (2010); M. Cherif Bassiouni, “The Perennial Conflict Between International Criminal Justice and Realpolitik,” 22 Ga. St. U. L. Rev. 541 (2006); M. Cherif Bassiouni, “Victim Rights and Participation in ICC Proceedings and in Emerging Customary International Law,” Int’l Crim. Ct. Forum, http://uclaforum.com/reparations (last visited Jan. 18, 2014). 25 African Union, Decision on Africa’s Relationship with the International Criminal Court (ICC), available at http://www.au.int/en/sites/default/files/Ext%20Assembly%20AU%20 Dec%20&%20Decl%20_E.pdf (adopted by the Extraordinary Session of the Assembly of the African Union in Addis Ababa, Ethiopia, on Oct. 12, 2013). The ICC’s Twelfth Anniversary Crisis 97

On its face, the request by the AU goes against the spirit of Article 27 of the Statute,26 which states:

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.27

But this action by the AU essentially reflects the negative feelings of several AU Member States who are also ICC State Parties. And it has led some of those states to urge an amendment to Article 27 by having it conform to the status of customary international law as reflected in the ICJ’s opinion in Democratic Republic of the Congo v. Belgium.28 In that case, the ICJ affirmed the non- applicability of substantive heads of state immunity, but allowed for temporal immunity while the head of state is in office. This is not, however, the case with respect to the ICC’s Article 27, which is more progressive than customary international law.29 The Rome Statute took this approach, because it reflected the hopes of many that such a provision would have a deterrent effect on heads of state and ultimately that it would lead the way to a change in customary international law.30

26 Rome Statute of the International Criminal Court art. 27, July 17, 1988, 2187 U.N.T.S. 90 (entered into force July 1, 2002) [hereinafter Rome Statute]. 27 Security Council: Bid to Defer International Criminal Court Cases of Kenyan Leaders Fails (Nov. 15, 2013), http://www.un.org/apps/news/story.asp/www.iaea.org/story.asp? NewsID=46499&Cr=criminal+court&Cr1=#.Utq20RZ6gy5; see generally William Schabbas, An Introduction to the International Criminal Court (Cambridge U. Press 4th ed. 2011); M. Cherif Bassiouni, The Legislative History of the International Criminal Court, Vols. 1–3 (Transnational Publishers 2005). 28 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2002 I.C.J. 25–26 (Feb. 14). 29 See supra note 7; see also Bassiouni, supra note 8, at 73–96 (discussing the criminal responsibility of heads of state); id. at Introduction. 30 See Bassiouni, supra note 27, vol. 1, at 126 (discussing Article 27 nonexemption for state officials). 98 Bassiouni

The possibility of African state parties withdrawing from the Rome Statute would be a serious blow to the ICC, with implications for its future. With no other international criminal justice mechanism in place after 2014, the international community cannot afford a blow to the ICC’s credibility and high standing among state parties and in world public opinion. Fortunately, there is a strong core of State Parties whose support for the ICC is unwavering and influential in civil society organizations. Thus, notwithstanding this crisis, the ICC will survive, and those supporting it hope that it will learn from lessons past and be strengthened by experience in order to better serve the criminal justice needs of the international community. But, some remedies are needed, and the Assembly of State Parties (ASP) at its Twelfth Session in The Hague 20–28 November 2013 decided to include an additional agenda item entitled “Special Segment as Requested by the African Union on Indictment of Sitting Heads of State and Government and its Consequences on Peace and Stability and Reconciliation.”31 That session was moderated by the Permanent Representative of Jordan to the United Nations and former Chair of the ASP, HRH Prince Zeid Ra’ad Zeid al-Hussein, and had the participation of the Attorney General of Kenya Githu Muigai; the legal advisor of the African Union, Djeneba Diarra; Professor M. Cherif Bassiouni, former Chair of the Drafting Committee, United Nations Diplomatic Conference on the Establishment of an International Criminal Court (1998) and Professor Emeritus at DePaul University College of Law; Ambassador Rolf Einar Fife, legal advisor of the Ministry of Foreign Affairs of Norway and former head of Norway’s delegation at the Rome Diplomatic Conference; and Professor Charles Jalloh, University of Pittsburgh School of Law.32 At issue before the ICC judges just before the ASP convened had been whether President Kenyatta, the sitting head of state of Kenya, must appear

31 Int’l Crim. Ct., Assembly of States Parties, 12th Sess., The Hague, Nov. 20–28, 2013, Recommendation by the Bureau for the Inclusion of an Additional Item in the Agenda of the Twelfth Session of the Assembly of States Parties of the International Criminal Court, ICC-ASP/12/1/Add.2, available at http://www.icc-cpi.int/iccdocs/asp_docs/ASP12/ ICC-ASP-1-Add.2-ENG.pdf. 32 International Criminal Court, Assembly of States Parties, ICC-ASP/12/6/1, Twelfth Session, 27 Nov. 2013, Special segment as requested by the African Union: “Indictment of sitting Heads of State and Government and its consequences on peace and stability and reconciliation”, 28 November 2013. See, in this regard the comments by the other academic participant, Charles Chernor Jalloh, “Reflections on the Indictment of Sitting Heads of State and Government and Its Consequences for Peace and Stability and Reconciliation in Africa”, 7 African Journal of Legal Studies 43–59 (2014). The ICC’s Twelfth Anniversary Crisis 99 in person at The Hague to face the charges brought by the Prosecutor against him and confirmed by the pretrial judge. Thus, contrary to what some people claimed, it was not about changing Article 27 or making an exception to it. It was about practicality and good judgment – both of which will necessarily vary in their applications from case to case. The question that arose in this case was weather a sitting head of state has to appear in person before the Court in The Hague as opposed to appearing from another location virtually through video conferencing.33 The Appeals Chamber held that such an option would be possible,34 though it is uncertain whether this would require a change in the Rules of Procedure,35 but if that is the case the ASP can easily do that. It should also be noted that the Office of the Prosecutor (OTP) has an office in Kenya and the indicted person could appear at that office and be virtually present before the Court by electronic connection and thus be deemed present at the legal proceedings in question. It is therefore surprising that such a practical solution has not been implemented and that this situation has been left to escalate to the point where the AU had to make the serious decision of requesting the Security Council to defer the proceedings, putting the Security Council in the difficult position of having to vote against it, in a vote that did in fact split the Council.36 The absence of a more practical solution as described above may well have left the AU without any choice but to escalate the crisis, leading African State Parties to threaten possible withdrawal from the ICC. The panel discussion at the ASP mentioned above resulted, however, in a number of practical

33 See, e.g., Article 63 which states: “If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as strictly required.” Rome Statute, supra note 26, at art. 63. 34 Prosecutor v. William Samoei Ruto & Joshua Arap Sang, Case No. ICC-01/09-01/11-777, Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial, pp. 43–53 (June 18, 2013). 35 See generally Int’l Crim. Ct., Rules of Procedure and Evidence, R. 67, U.N. Doc. PCNICC/ 2000/1/Add.1 (Nov. 2, 2000) available at http://www.icc-cpi.int/en_menus/icc/legal%20 texts%20and%20tools/official%20journal/Documents/RulesProcedureEvidenceEng.pdf. 36 Press Release, Security Council, Security Council Resolution Seeking Deferral of Kenyan Leaders’ Trial Fails to Win Adoption, With 7 Voting in Favour, 8 Abstaining, U.N. Press Release SC/11176 (Nov. 15, 2013). 100 Bassiouni suggestions, which hopefully will be adopted by the OTP, thus avoiding the prospective crisis mentioned above. The Kenya situation also raises the question of the appropriateness of the Prosecutor’s decision to indict Uhuru Kenyatta, who at the time was Kenya’s deputy prime minister and widely expected to become the next sitting head of state.37 The then-Prosecutor, Luis Moreno Ocampo, should have considered whether it was appropriate under Article 53(c),38 particularly as to whether the crime charged is among “the most serious crimes of international concern,” and whether an indictment, even though based on “probable cause” was wisely pursued since Kenya has consistently cooperated with the ICC and had initially self-referred the situation to the ICC. Prosecutor Ocampo proceeded to thereafter seek a judicial authorization for permission to investigate the situation, following which he sought charges against six individuals. In any event, these two questions in turn raise a concern about the appropriateness of rushing to trial in a case that could very well not have warranted going to trial without additional investigation. Admittedly, the evidentiary threshold for the confirmation of an indictment is a relatively low one,39 it is precisely because of that low standard that rushing to bring to trial a high level government official (then the deputy prime minister and minister of finance) who was fully cooperating with the OTP in a case which did not fall within the category of “the most serious crimes of international concern” raises questions about the judiciousness of that decision. This in no way questions the integrity

37 Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta & Mohammed Hussein Ali, ICC-01/09-02/11, Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Mar. 8, 2011). 38 “Taking into account the gravity of the crime and the interests of the victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.” Rome Statute, supra note 26, at art. 53(c). 39 The Rome Statute sets forth the following rules: [T]he Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court. Rome Statute, supra note 26, at art. 17. The ICC’s Twelfth Anniversary Crisis 101 of the Prosecutor or the Pretrial Chamber which approved the indictment, but it does raise the question as to the good judgment of the Prosecutor in pushing for confirmation, particularly in a case which required the exercise of discretion under Article 53(c). This is the situation that the present-Prosecutor, Fatou Bensouda, has inherited from her predecessor, and she has only hard choices ahead of her. But, such hard choices characterize persons of moral fortitude.40 Another important consideration is that the eventual trial of President Kenyatta has raised high expectations among the victims and their survivors, which would support re-opening the investigations and commencing trial proceedings. And, it has also raised expectations among the minority tribe in Kenya with respect to abuses committed against them by the majority tribe and those in power representing them. One can only imagine the degree of disappointment experienced by the victims, survivors, and the minority tribe if the indicted person who is from the majority tribe and the head of state would be acquitted because the evidence presented at trial would be found by the trial court to be insufficient to convict. That would truly be a tragedy for the victims and their survivors in Kenya, and it would also be a blow to victims everywhere in the world. The ICC would, as a result, suffer a blow to its credibility worldwide. Speculations will then abound about how and why such an outcome could have been possible, and there would be no way to convince the many supporters of the ICC, and surely its detractors, that the decision was not politically motivated. Would it not therefore be wiser if the Prosecutor would move to suspend the trial proceeding following a re-opening of the investigation should additional evidence be found that would rise above the level of probable cause? Then, the Prosecutor’s case would be stronger, and a conviction would be more likely. But, if evidence does not move in that direction, then a dismissal of the case would be wiser than to proceed with the trial with a higher prospect of acquittal for lack of sufficient evidence, let alone for complete innocence. These and other ideas were discussed at the ASP session of 21 November 2013 which lasted for six hours from 15.00hrs to 21.00hrs. At the end, everyone left hopeful that issues such as those involved in this case, essentially relating to good judgment, reasonableness, and common sense, would be resolved and that the OTP, ASP, and other branches of the Court (and Judges and the Registrar) should find a mechanism to resolve such issues in the future. This may be another positive outcome likely to result from this special panel discussion, which was conducted with transparency, forthrightness, and integrity.

40 Putting her in a difficult position, being an African former Prosecutor from The Gambia, and because she has to uphold the decision of her predecessor. 102 Bassiouni

This was not about political compromise. It was about reinforcing the ICC as an institution by making it work better and avoiding the development of crises that could be avoided with practical solutions, good judgment, and common sense, without compromising justice.

Conclusion

Like any judicial institution in the world the ICC history is reflected in its life experiences and how it addresses the problems that inevitably arise in the course of that life. Those judicial institutions that have historically survived best are those that have addressed their problems with good judgment, reasonableness, and common sense without compromising justice. Hopefully, this will be the case of the ICC, and hopefully this experience will be the beginning of a new approach for the Court’s dealing with inevitable growing pains as it becomes an established institution of justice for the international community as a whole. chapter 9 Protection of Populations against Atrocity Crimes: The Role of Regional Organizations

Adama Dieng

1 Introduction

It gives me great pleasure to contribute this chapter in the mélanges on behalf of my good friend Hassan. I have known Hassan for more than three decades since we were both young men working for the cause of rule of law and human rights in our own countries. While we later took different trajectories in our respective professional endeavours, we always kept in touch and we knew what each of us was doing. What I came to admire most about my friend Hassan, is his unwavering commitment to the rule of law and belief in the equality and worth of all persons. It is these qualities that propelled him to the pinnacle of justice both in his native Gambia and on the international plane, serving as a Justice of the Supreme Court in his country and as the Chief Prosecutor of the International Criminal Tribunal for Rwanda. While serving as the Registrar of the ICTR myself, I was privileged to work with Hassan for more than a decade where we both made our respective contribution to the fight against impunity and reaffirmation of the rule of law, ideals that have occupied most of our professional lives. The choice of the title for this contribution can therefore be partly attributed to the work and commitment of Hassan to seek justice for the victims of atrocity crimes. His enormous and indeed distinguished career at the ICTR and now with the MICT, is a further testimony to his tireless efforts to seek a better future for the victims of atrocities and reaffirm the rule of law for all. This belief is grounded in the reality that justice is part and parcel of conflict prevention and protection of the vulnerable in our societies. As a Special Adviser of the Secretary General on the Prevention of Genocide, I can only hope that the partnership between my Office and his will be enhanced to realize the commitment made by the international community in the World Summit Outcome Document (“WSOD”) of preventing and protecting populations against atrocities. With the adoption of Articles 138–140 of the WSOD in 2005, international leaders reaffirmed their primary role to protect their populations against

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_010 104 Dieng atrocity crimes.1 This consensus can be partly attributed to the challenges that have confronted the international community especially its failure to prevent atrocity crimes in Rwanda and Bosnia a decade earlier.2 The World Summit Outcome Document recognizes the individual and collective duty of states to protect populations from genocide, war crimes, crimes against humanity and ethnic cleansing as well as their incitement. While this recognition is laudable, it raises some fundamental questions that need to be addressed if the principle of prevention and protection of populations from atrocity crimes is to be realized. While the United Nations Charter remains the legitimate international legal framework to address international peace and security issues, the question of how to operationalize this framework remains a subject of contention. For example, while the Charter recognizes the role of the Security Council to determine threats to international peace and security, it also recognizes individual self-defence.3 The question arising therefore is how precisely can the Security Council invoke its powers for the common good? In other words, how can the Council ensure that the powerful on one hand and the most vulnerable and poorest in conflict riddled spots enjoy the same protection of the Charter? As the current Syrian situation demonstrates, when the Council fails to unite with one voice, it is evident that it is civilians who pay the highest cost of conflict often with their dignity and lives.4 In this essay, I examine the duty of the international community to prevent atrocity crimes as reflected in the World Summit Outcome Document. It is argued that considering the challenges and near impossibility of securing consensus among the veto-wielding members of the Council in some cases that require the Council’s intervention, it is essential that regional institutions assume a greater role in preventing and protecting populations against atrocities. The importance of this role emanates from the reality that regional institutions are not only geographically closer to most of these conflicts, but they are

1 UN General Assembly, “World Summit Outcome” Final document of the High-level Plenary Meeting of the General Assembly, UN doc. A/60/L. vol. 1, 2005. Nicholas Wheeler, “Victory for Common Humanity – The Responsibility to Protect after the 2005 World Summit” American Journal of International Law and International Relations, vol. 2, 2005, 95. 2 Report of the Secretary General on the Establishment of an International Panel of Eminent Personalities to Investigate the Genocide in Rwanda and the Surrounding Events, OAU, Doc CM/2048 (LXVII). The panel’s report was released on 7 July 2000. See also, David Rieff, Slaughterhouse: Bosnia and the Failure of the West, Simon and Schuster Inc.: New York, 1996. 3 David Kretzmer, “The Inherent Right to Self Defence and Proportionality in Jus Ad Bellum”, European Journal of International Law, vol. 24, 1, 2013, 235–282. 4 See the Report of the Secretary General to the Security Council on the Implementation of the Security Council Resolution 2139 (2014). Protection of populations against Atrocity Crimes 105 the ‘first victims’ to suffer from them.5 For example their member states are usually the first to receive the influx of refugees, as well as the upsurge of transnational crimes among other consequences. Yet, despite this reality, some of the institutions in regions where atrocities are committed, are either weak or lack adequate resources to address these challenges. It is therefore the recognition of this reality that, I argue for a renewed approach to international efforts to provide requisite support to these institutions to ensure that they assume a proactive role in protecting populations from atrocities. It is further contended that, it was in recognition of the fact that the United Nations cannot adequately address all global peace and security challenges on its own, that the Charter makes provision for the role of regional organizations to complement the efforts of the Security Council in the maintenance of international peace and security.6 By having strong regional institutions capable of preserving peace and security within their respective areas, the United Nations could focus its resources and energy on equally pressing issues such as conflict prevention, peace building and general improvement of the social and economic conditions of the majority of the global population still mired in abject poverty.

2 The United Nations and Prevention of Atrocity Crimes

The role of the United Nations in the maintenance of international peace and security is grounded in its Charter. Indeed, the founding of the UN Charter is itself premised on the ‘need to rid the world of the scourge of war’.7 As such it can be argued that the United Nations Charter designates the protection of populations against atrocity crimes as its primary role. Within the Charter framework, the role of maintaining international peace and security is bestowed upon the UN Security Council. The Security Council’s primary role as custodian of international peace and security is underpinned by article 39 of the Charter, which empowers the Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression and . . . make

5 Herbert Howe, “Lessons of Liberia: ECOMOG and regional Peacekeeping”, International Security, vol. 21, 3, 1996–1997, 145–176. 6 Michael Barnett, “Partners in peace? The UN, regional organizations, and peace-keeping”, Review of International Studies, vol. 21, 1995, 411–433. 7 The Charter of the United Nations, 26 June 1945. The preamble. 106 Dieng

recommendations, or decide what measures shall be taken . . ., to maintain or restore international peace and security.”8 Reading this provision, it is clear that the Council has authority to characterize any situation as constituting a threat to international peace and security – whether in a particular region of the world or within individual states. Interestingly, the Charter neither provides criteria for such determinations nor compels the Security Council to intervene in any particular situation; rather, it leaves decisions as to whether and on what basis to intervene within the prerogative of the Council. Nor does article 39 specify the mechanisms to be used by the Security Council when intervening; rather, this is also left to the discretion of the Council (subject, however, to the broad but non-exhaustive parameters set out in articles 41 and 42). The role of the Council in preventing atrocity crimes is not limited to military intervention; rather, it can take other measures within the framework of the Charter to address any question of peace and security. For example the Council can resort to mediation between warring parties, support the Good Offices of the Secretary General or establish judicial mechanisms in the form of referrals to the International Criminal Court or establish international or hybrid criminal tribunals. The latter is undertaken to serve as a deterrence mechanism for future crimes. For example, the Council has supported the establishment of criminal tribunals in The Former Yugoslavia,9 Rwanda,10 Cambodia11 and Sierra Leone.12 The latter cases, while not directly accountable to the Council, were negotiated by the Secretary General with strong support of the Council. Similarly, the Security Council has supported the establishment of peacekeeping missions to protect civilians and referred cases to the International Criminal Court when it deemed such referral to serve the interests of international peace and security.13 The General Assembly has also made efforts to prevent and protect populations against atrocity crimes. The adoption and endorsement of the World

8 Ibid. Article 39. 9 See S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993). 10 See S.C. Res. 955, U.N. Doc S/RES/955 (8 November 1994). 11 See generally, Daniel Donovan, “Joint UN-Cambodia Efforts to Establish a Khmer Rouge Tribunal”, Harvard International Law Journal, vol. 44, 2, 2003, 551–576. 12 Charles Jalloh, ed., Consolidated Legal Texts for the Special Court for Sierra Leone, Martinus Nijhoff Publishers: Leiden and Boston, 2007. 13 See the UNSC Resolution 1590 on referral of the situation in Darfur to the International Criminal Court. See alsoProsecutor v. Omar Hassan Ahmad Al Bashir (Omar Al Bashir), ICC-02/05-01/09, Warrant of Arrest for Omar Hassan Ahmad Al Bashir (Public) (4 March 2009). Protection of populations against Atrocity Crimes 107

Summit Outcome Document in 2005, is one step in such direction. This Decision which calls for individual and collective action to prevent mass atrocities can be considered a positive step in the action of the General Assembly and the Council to address the challenge of protecting populations from atrocity crimes. It can however be argued that while the General Assembly has endorsed the WSOD which calls for the responsibility of the international community to protect populations against mass crimes, it is for the Security Council to take measures within the Charter framework to address these challenges. It is therefore no surprise that since the adoption of the WSOD, the Council has taken various measures such as the authorization of the use of force in the territory of the member states to protect populations against atrocity crimes.14 The Council has also referred and in some cases supported referral of cases to the International Criminal Court, if doing so advances the objective of protecting populations against mass crimes. The UN Secretary General has played and indeed continues to play a key role in operationalizing the principle of the responsibility to protect agreed in the WSOD. Since the adoption of the Document, the Secretary General has taken measures to ensure that the principle moves from an ideal to a concrete reality capable of affording requisite protection to those in whose name it was adopted.15 It is worth noting that earlier in 2004, the Secretary General established the Office of the Special Adviser on the Prevention of Genocide. These efforts of the Secretary General can be seen as an acknowledgement of past failures and an attempt to create a better institutional framework within the organization to better prevent and respond to the protection needs of populations against mass atrocities. The chief objectives underpinning these efforts of the Secretary-General are to ensure that the international community is well positioned to prevent and respond to atrocity crimes through an effective institutional framework. As the third mandate holder, the role of the Special Adviser on the Prevention of Genocide is that of a catalyst to alert, advocate and mobilize the United Nations system and international community in general for an effective and timely response to crimes of genocide. In particular, the Special Adviser acts as a mechanism of early warning to the Secretary-General and, through him, to the Security Council and the United Nations system as a whole on situations

14 See Charles Majinge, the Use of Force in International Law and the UN Security Council Resolution 1970 and 1973 on Libya, The Hague Yearbook of International Law, 2011, 153–192. 15 In July 2012, the UN Secretary General appointed Mr. Adama Dieng as his Special Adviser on the prevention of Genocide and in July 2013, The Secretary General appointed Prof. Jennifer Welsh as his Special Adviser on Responsibility to Protect. 108 Dieng where there is a risk of atrocity crimes. I also make specific recommendations and liaise with the United Nations system to enhance its collective capability to prevent the commission of such crimes. In his 2009 Report, on implementing the Responsibility to Protect (R2P), the Secretary General advanced three pillars within which the R2P principle can be advanced to achieve its objectives of protecting populations from mass atrocities.16 The first pillar recognizes the inherent duty of states to protect their populations from mass atrocities. The second pillar recognizes the commitment of the international community to provide support to member states to meet their obligations under pillar one. In other words, when states require assistance to fulfil the protection responsibility towards their own people, the international community must be ready to assist. The third pillar recognizes that there may be instances when states manifestly fail to protect their populations from atrocity crimes. Under such circumstances, the international community must be ready to intervene collectively, within the framework of the United Nations Charter, to protect populations and save lives. The role of the Secretary General can therefore be seen in two folds. The first role is to ensure that the principle is placed within the framework envis- aged under the WSOD to strictly protect populations against atrocity crimes. Another role of the Secretary General has been to engage in preventive diplomacy within the framework of Responsibility to Protect. The Secretary General has used his Good Offices to ensure that potential sources of conflicts are addressed before they erupt into full blown conflict. Indeed, it is the Special Adviser’s duty to advise the Secretary General on an appropriate approach in addressing these challenges.

3 Regional Arrangements and the Responsibility to Protect Populations from Atrocity Crimes

As already stated in the introductory part of this chapter, the role of protecting populations from atrocity crimes cannot be adequately fulfilled by the United Nations alone. It is this reality which calls for the greater involvement of regional institutions in the role of protecting populations from atrocity crimes. The role of regional institutions in the maintenance of international peace and security is provided for under chapter VIII of the Charter. While Chapter VIII authorizes the UN Security Council to delegate peace enforce-

16 See the Secretary General Report on Implementing the Responsibility to Protect A/63/67, 2009. Protection of populations against Atrocity Crimes 109 ment action to regional arrangements, it is important to note that Chapter VIII does not in and of itself delegate such power to regional arrangements. Rather, context-specific delegation by the Security Council is needed. Article 53(1) of the UN Charter in particular provides that “[t]he Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council. . . .”17 The WSOD recognizes the key role of regional institutions to protect populations from mass crimes. While this recognition is not explicit, paragraph 139 of the Document requires the international community ‘to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapter VIII to protect populations’. And collective action under Chapter VII was to be considered on a case-by-case basis and in cooperation with relevant regional organizations. It can therefore be argued that this paragraph fully recognizes the role of regional institutions precisely because this Chapter covers the relationship between the United Nations and regional agencies. In 2011, the Secretary General, in his report to the General Assembly provided a detailed role of regional and sub-regional arrangements in implementing the responsibility to protect populations from atrocity crimes.18 From the Secretary General’s perspective, the Charter recognizes that regional institutions have an indispensable role to play in addressing challenges relating to international peace and security. Indeed, it is because of this recognition of the role of the regional institutions in the Charter, that regional and sub-regional institutions have undertaken measures to protect populations from mass atrocities. These measures have ranged from participating in peacekeeping operations, supporting peace negotiations, and where necessary and authorised, through military intervention. It is worth noting that some of these measures have been undertaken within and outside the framework of the Charter.19 Despite this state of affairs, it can be argued that the capability of some regional institutions remain far below their potential. While most of them recognize their role to protect populations from atrocities, few of them can mount effective operations to fulfil this task

17 UN Charter, supra note 7, Article 53(1). 18 See the Secretary General Report on “the Role of Regional and Sub-regional Arrangements in Implementing the Responsibility to Protect” A/65/877-S2011/393. 19 For example while the intervention in Libya was sanctioned by the UN Security Council the intervention in Kosovo was not. For the latter conflict see, Christine Chinkin, “Kosovo: a ‘Good’ or ‘Bad’ War?” American Journal of International Law, vol. 93, 4, 1999, 841–847. 110 Dieng without international technical and financial assistance, especially from members of the Security Council. In the next discussion, we consider a few examples of measures that have been undertaken by regional institutions to protect civilians populations from atrocity crimes.

3.1 North Atlantic Treaty Organization-NATO The North Atlantic Treaty Organization (NATO) was established during the cold war to guarantee defence and security to its members.20 The practice of the UN Security Council has not been to delegate its Chapter VII powers to NATO in specific terms; rather, it has delegated these powers more generally to UN member states, with provision for the exercise of these powers through regional arrangements.21 This has been so notwithstanding the fact that NATO had previously not been regarded as a regional arrangement for the purpose of Chapter VIII of the UN Charter, but rather as a collective self-defence pact.22 Yet, from the practice of the UN it is clear that the Security Council has effectively taken to delegating enforcement authority to NATO under the regional arrangement mechanism.23 Unlike other regional arrangements, NATO is the most powerful organization given the unrivalled military superiority of its members. It has intervened in areas where it felt it was crucial to protect populations from atrocities. For example, in 2011, France and Britain acting under the umbrella of NATO intervened in Libya.24 In accordance with Chapter VIII of the UN Charter, this intervention was authorized by the Security Council under Resolution 1973. One thing can be noted under this intervention, Resolution 1973 was adopted as a response by the Council to the need to protect populations from the Libyan government itself that was clearly unwilling to protect them. It is also important to note that, most of the countries that intervened in Libya under NATO were permanent members of the Security Council.25 These members were

20 Francis Heller and John R. Gillingham, (Eds.), NATO: The Founding of the Atlantic Alliance, Macmillan, 1992. 21 Danesh Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of Its Chapter VII Powers, Oxford University Press: Oxford, 2000, at 253. 22 Ibid. at 251. Indeed this view was reaffirmed by the German Constitutional Court in its decision that NATO can be classified as a type of collective security system: Deployment of the Federal Armed Forces [Bundeswehr] in International Operations (1994), BVerfGE 90, 286 (Constitutional Court of Germany). 23 Sarooshi, supra note 21 at 251–52. 24 Majinge, supra note, 14. 25 Ibid. Protection of populations against Atrocity Crimes 111 able to mobilize requisite resources required for the successful intervention without relying on the Council to provide them resources. Closely related to the above, when NATO took the lead to intervene in the Balkans in the late 1990s, it did so without the Security Council’s authorization but also without asking for resources from the Council.26 Indeed, during the Balkan conflict, NATO provided all the required resources for its mission within the region. The role of the UN Security Council was limited to legitimis- ing NATO’s acts. However, it is worth noting that intervention to protect populations undertaken by regional institutions is often premised on geo-political interests of member states. This is because, members of particular regional blocks are likely to suffer the consequences of inaction such as refugee flows or increased transnational crime from countries that experience political instability. It is therefore in their interests to intervene and protect populations and also avert the ensuing consequences of conflict. Despite this reality, any successful intervention to protect populations depends on the capability of member states to mobilize requisite resources for the task.

3.2 African Union The regional institution that is most often called upon to intervene to protect populations is the African Union. This is precisely due to the reality that there are multiple ongoing conflicts in Africa with a need for population protection. 27 Perhaps it was in recognition of this reality that the African Union treaty reaffirmed the role and duty of the organization to protect populations when their governments are unable or unwilling to do so. Article 4(h) of the Constitutive Act of the African Union, provides that the AU has a right to intervene in the internal affairs of its member states pursuant to the Decision of the Assembly of Heads of State in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity. The significance of the decision to include this provision within the AU Constitutive Act is self-evident when one considers the historical context of the AU’s predecessor the Organization of African Unity (OAU), which essentially operated on the basis of non-interference in the internal affairs of member states.28 African people have, since the mid-1990s

26 Chinkin supra note 19. 27 See Paul D. Williams, War and Conflicts in Africa, Polity Press: Cambridge, 2011. 28 Ben Kioko, “The Right of Intervention under the African Union’s Constitutive Act: From Non-Interference to Non-Intervention” International Review of the Red Cross, vol. 85, 2003, at 821. See also Edward Ansah Akuffo, “Cooperating for Peace and Security or Competing for Legitimacy in Africa? The Case of the African Union in Darfur” African Security Review, vol. 19, 2, 2010, 74. 112 Dieng shouldered the burden of atrocity crimes, in most cases without external intervention. This failure is reflected in the large number of conflicts which have claimed thousands of lives without international support or indeed support from other African states.29 Although article 53(1) of the UN Charter foresees that peace enforcement powers may be delegated to a regional arrangement, state practice shows that such powers are often in fact exercised by individual states acting within the regional arrangement framework rather than by the regional arrangement itself. For example, during the civil wars in Liberia and Sierra Leone, the UN Security Council delegated its powers to maintain and restore peace and security in these countries to the Economic Community of West African States Monitoring Group (ECOMOG); however, those powers were exercised by Nigeria and a handful of other regional states acting under and within the framework of that regional arrangement.30 However, increasingly within the AU practice, protection of populations against atrocities is carried out by member states willing and able to contribute troops for peacekeeping operations in different missions where the organization is involved. Yet, it must be pointed out that even this willingness to contribute troops is fundamentally dependent on the existing realities on the ground where most countries lack adequate resources to fully fund their troops to undertake such crucial assignments. In this connection, the distinction between regional and sub-regional organizations is significant. In UN practice, the AU is classified as a regional arrangement within the meaning of Chapter VIII of the UN Charter, while regional mechanisms such as the Economic Community of West African States (ECOWAS) and the Southern African Development Community (SADC) are recognized as sub-regional arrangements. Sub-regional arrangements in Africa have undertaken responsibility to maintain peace and security at times more successfully than regional arrangements such as the OAU and its successor the AU. For example, when comparing ECOWAS initiatives in Sierra Leone and Liberia on the one hand with OAU intervention in Chad or Rwanda on the other, it is clear that the former performed much better. Similarly, the SADC interventions in Lesotho and Burundi were significantly more successful than the AU’s efforts in Somalia.31

29 See generally, Rachel Murray, Human Rights in Africa: From the OAU to the African Union, Cambridge University Press: Cambridge, 2004. 30 See John M. Kabia, Humanitarian Intervention and Conflict Resolution in West Africa From ECOMOG to ECOMIL, Ashgate: Surrey, 2009. 31 Devon Curtis & Gilbert Nibigirwe, “Complementary Approaches to Peacekeeping? The African Union and the United Nations in Burundi” in Hany Besada, (Ed.), Crafting an Protection of populations against Atrocity Crimes 113

This contrast in the success of regional and sub-regional organizations may be attributable to a number of factors, but chief among them is that sub- regional arrangements have often been able to rely on the capabilities of sub- regionally dominant member states that consider themselves vulnerable to the threats posed by local conflicts. Thus, in ECOWAS, Nigeria has often taken the lead to address peace and security challenges within the region partly for fear of the destabilizing effects on its economy that might result from regional instability.32 The same can be said of South Africa and its dominant role within the SADC.33 The question is whether the UN Security Council provides or ought to provide adequate resources to these arrangements so that they can exercise their mandates successfully. The competence of the UN Security Council to delegate its Chapter VII powers to a regional arrangement does not in itself mean that the regional arrangement has the institutional capacity or resources to exercise those powers.34 This has been and continues to be a major challenge for the use of regional arrangements to address threats to peace and security in Africa and to protect populations, as the UN Security Council has from time to time authorized regional entities to undertake collective efforts to maintain peace and security without providing resources for such undertakings.35 Yet, while regional arrangements exercise powers delegated to them by the UN Security Council, the Council still retains primary responsibility under the UN Charter to maintain global peace and security. In 2004, the AU established a peacekeeping mission in Sudan to protect populations from mass crimes in Darfur. The establishment of this mission can be considered as a willingness of the organization to protect populations in danger. The AU authorized the mission with the understanding that African states would most likely have to meet the costs associated with the mission. However, as the operation of the mission demonstrated, the peacekeeping mission struggled until it was hybridized to include both UN and AU forces. The hybridization of the mission once again demonstrates the key role fac-

African Security Architecture: Addressing Regional Peace and Conflict in the 21st Century, Ashgate: Surrey, 2010, at 109–25. 32 Adekeye Adebajo & Christopher Landsberg, “South Africa and Nigeria as Regional Hegemons” in Mwesiga Baregu & Christopher Landsberg, (Eds.), From Cape to Congo: Southern Africa’s Evolving Security Challenges, Lynne Rienner: Boulder, 2003, 171. 33 Ibid. 34 See, e.g., Sarooshi, Development of Collective Security, supra note 21 at 246. 35 Jane Boulden, “United Nations Security Council Policy on Africa” in Jane Boulden, (Ed.), Dealing with Conflicts in Africa: The United Nations and Regional Organizations, Palgrave Macmillan: New York, 2003 at 11–23. 114 Dieng ing regional organizations to adequately fulfil the mandate bestowed on them by the Security Council to protect populations against atrocities in countries experiencing conflicts. In 2007 the AU decided to send troops to Somalia to secure peace and stability there by supporting the Transitional Federal Government.36 While the UN Security Council had adopted Resolution 1744, reaffirming its support for establishment of the mission by the AU and asking the Secretary General to send a technical assessment mission to look into the possibility of a UN peacekeeping operation to follow the AU deployment,37 the AU mission, which is essentially fulfilling the UN Security Council’s responsibilities, has faced continuing challenges of inadequate and sometimes unavailable resources for the discharge of its functions. Despite these deployments in Sudan and Somalia, the events in Libya, Mali and Central African Republic have exposed the serious challenges facing the organization whenever it is called upon to protect populations in armed conflicts. It is this reality which reinforces the understanding that, some regional arrangements like the African Union can only perform their protection functions if and when they are adequately supported by the international community, especially the Security Council, with a direct political mandate to maintain international peace and security and protect populations against atrocity crimes.

4 Enhancing the Role of Regional Institutions to Protect Civilians

Based on the foregoing discussion, it is arguable that, while the AU’s capacity to protect populations against atrocities is highly constrained, it has managed in its short existence to have a positive impact on efforts to resolve conflicts in Africa. These limited successes have been achieved partly through the AU’s reliance on mediators; and partly due to the ability and willingness of sub- regional mechanisms such as ECOWAS, the SADC, and Inter-Governmental Authority on Development38 to address security challenges under the overall authority of the African Union. Most notably, when one examines the AU’s efforts in Sudan and Somalia, and most recently its positive role in Central African Republic, one can fairly conclude that the measures undertaken by

36 Communiqué of the 69th Meeting of the Peace and Security Council, AU-PSC, 69th Meeting, AU Doc PSC/PR/Comm (LXIX) (2007). 37 Security Council Resolution 1744, UNSC, 5633rd Meeting, UN Doc S/Res/1744 (2007). 38 IGAD was established in 1996. www.igad.int. Protection of populations against Atrocity Crimes 115 the organization have helped defuse the escalation of those conflicts by fostering an atmosphere of dialogue among the various factions involved and in the process protecting the population. It is therefore argued that, if the African Union is to make an effective contribution in protecting populations against atrocity crimes in the ongoing conflicts on the continent, the UN and in particular the Security Council, must fulfil its responsibility as the primary guarantor of international peace and security. This means that there should be a division of labour between the UN and regional arrangements such as the AU. If the AU can provide troops to venture into hostile spots like Bangui, Bamako, Mogadishu or Darfur, to protect populations, the UN Security Council should be willing to play its role as a reliable partner. If the UN Security Council is not willing to send troops to the most hostile regions consistent with its political and legal duty in the Charter, it should at least be prepared to provide adequate resources to allow those regional organizations financially challenged like the AU to do so to discharge such functions on its behalf. It is further argued that, the UN Security Council’s role should not be limited to extending financial assistance to AU’s authorized missions. An undue focus on funding individual missions could eclipse required assistance in other crucial areas such as the training of peacekeepers; the provision of equipment, such as aircraft, armoured vehicles and medical facilities; and expert support to the AU itself in order to enhance its capacity to deploy and manage missions. Such “in-kind” support can be crucial given the hostile nature of missions in such places as Somalia, where some inexperienced and under-equipped troops have had to battle Al Shaabab militias on a regular basis.39 It is encouraging to note that increasingly the Council has recognized the imperative nature of protecting populations against atrocities in armed conflicts as evidenced by the Security Council Resolution 2155 adopted in May 2014 on South Sudan which makes protection of populations a priority. However, this recognition must be fully reflected in the resources the members of the Council extend to these missions both those authorized by the Council and regional bodies like the AU to undertake protective functions. It is further argued that this recognition by the Council to make protection of populations a priority is a welcome development bearing in mind the reality that the dynamics of armed

39 For example, in February and March 2011, more than fifty peacekeepers from Burundi were killed in Mogadishu while trying to secure the city from Al Shaabab: Katherine Houreld, “53 African Union Peacekeepers killed in Somalia offensive”, Associated Press (5 March 2011), online: The Independent http://www.independent.co.uk/news/world/ africa/53-african-union-peacekeepers-killed-in-somalia-offensive-2233169.html. 116 Dieng conflicts globally have changed tremendously. Today, it is no longer men and women in uniform who bear the brunt of these conflicts; rather, it is the innocent and vulnerable populations who pay the price more often with their lives and dignity. As the preceding discussion shows, the UN Charter recognizes the pivotal role of regional arrangements in the maintenance of international peace and security. The UN Security Council, however powerful it might be, cannot effectively take measures to maintain international peace and security and protect populations against atrocities in all corners of the world. This reality compels the Council to rely upon regional arrangements to carry out elements of its mandate on its behalf. Yet, as its practice in the African context demonstrates, the UN Security Council has tended to do so without providing adequate resources for the task, despite the differing capabilities of regional arrangements to fulfil such mandates. For the AU, the question of adequate resources is perhaps more crucial than for any other organization in the world. Unlike the EU or NATO, the AU’s members are among the world’s most economically challenged and politically unstable states. Indeed, a significant number of AU members are either embroiled in or emerging from conflicts that require the intervention of the AU or are outright poor and hence unable to contribute meaningfully to the cause of international peace and security. It is highly unrealistic to expect countries embroiled in conflicts to contribute meaningfully to protect populations when these same countries, apart from being poor, are also incapable of even securing their own boarders.

5 Conclusion

This chapter has argued that there is a need for the UN Security Council to re-examine its engagement with regional bodies that carry out its mandate of protecting populations from atrocity crimes, in circumstances where it is unwilling or unable to do so. The Council should adopt a policy to the effect that, when it authorizes a regional body to undertake enforcement action in accordance with the UN Charter, it will require UN member states to provide sufficient accompanying resources to permit the regional authority to perform its protective functions effectively. While it is laudable that the Council is increasingly recognizing the imperative nature of protection of populations against atrocities in conflicts, this recognition must correspond with resources required to fulfil this task. There is therefore a profound need for a permanent mechanism, supported by both the UN and the AU, to fund peace and Protection of populations against Atrocity Crimes 117 security initiatives on the African continent. Such a mechanism would have to acknowledge that it is the primary responsibility of the UN Security Council to maintain international peace and security, and that whatever is done by regional arrangements such as the AU in that regard is undertaken on behalf of the former. Without this, any other progress, whether political or economic, cannot be achieved. The paper has further argued that, protection of populations against atrocity crimes is a collective duty of the international community as reaffirmed in the World Summit Outcome Document of 2005. While the UN Secretary General and his Special Advisers can alert and bring to the attention of the Council and other relevant organs of the United Nations what is required to protect populations, it remains a primary duty of the Council to take necessary measures to respond to these challenges. As the situation in Syria or Central African Republic have constantly reminded us, protecting populations requires the Council and indeed the international community to act with one voice and take necessary decisions to address these challenges. I am proud to have worked with Hassan tirelessly for the cause of international justice in Arusha and beyond. As he prepares to preside over the closure of the ICTR, an institution he has been privileged to serve for the past decade, I strongly believe that his contribution to the cause of international justice will always occupy a special place in the annals of history. Further, his new role as the Chief Prosecutor of the MICT, a successor to the ICTR and ICTY, provide us an encouragement that the international community will continue to benefit from his vast expertise and experience in international justice in the foreseeable future. I strongly believe that justice for atrocity crimes is a prerequisite for an enduring peace and stability of any community. I can wish him nothing but the very best in his current and future endeavours. chapter 10 The Contribution of the ICTR to the Rule of Law

Leila Nadya Sadat

1 Introduction

It is a privilege to contribute to this festschrift in honor of Hassan Bubacar Jallow, Chief Prosecutor of the International Criminal Tribunal for Rwanda. Prosecutor Jallow’s career has been dedicated to strengthening the rule of law, fighting impunity and promoting capacity building in the area of judicial and democratic institutions. It is also an opportunity to reflect upon the work accomplished by him and by the Tribunal that he served for so many years, and is particularly apt given the recent commemorative events held in remembrance of the twentieth anniversary of the Rwandan genocide. This is a crucial juncture in the ICTR’s history, as well as a moment charged with mixed emotions: Pride at nearly completing the work the Tribunal was charged with doing; but pride mixed with sadness at seeing so many staff leave after their long investment in the common undertaking that has been the ICTR – including Prosecutor Jallow – and pride mixed with concern about the future legacy of the Tribunal. I cannot, in this short essay, thoroughly cover the seventeen-year history of the ICTR, nor would I presume to do so. Nor can I comment, except tangentially, upon the work of the ICTR as viewed by the Rwandan government and the Rwandan people, leaving a discussion of that important subject for another time and place. Yet what perhaps I can offer is an outsider’s perspective on the work of the ICTR, situate it in historical context, and offer some suggestions about future actions that may help consolidate the legacy of this Tribunal and the great and recent experiment of international criminal justice more generally. In my view, the ICTR has had a profound short- and medium-term effect locally, regionally and internationally. This effect has been felt in local, regional and international politics, it has flowed through the thousands of people whose lives have been touched by the work done here, and it has resulted in the establishment of new institutions of international criminal justice that will succeed the ICTR. A more difficult question is what long-term impact the Tribunal’s work will have, and I will turn to that issue in closing.

2 From Nuremberg to Arusha

The idea which surfaced after the First World War – that individuals controlling the apparatus of a State used that power to commit genocide, crimes against humanity or war crimes1 – was not realized until the establishment of the Nuremberg Tribunal in 1945. While it is not always useful to recall the Nuremberg precedent in modern times and the conditions of that tribunal’s work were very different than those extant today, I believe there are useful par- allels to be drawn from that first experiment with international justice. That tribunal was established quickly, in a matter of months, as an international occupation court whose judges and prosecutorial staff were from the four allied powers only. Germany and Europe lay in ruins, and Germany had uncon- ditionally surrendered to the Allies. The IMT tried twenty-two defendants and acquitted three; twelve were sentenced to death by hanging, the others to varying terms of imprisonment.2 Its establishment and judgment was an important watershed event in international law by finding that those who troubled the peace and security of the world and attacked their own people – as well as their neighbors – could be made to answer for their actions before an international tribunal. International crimes, the tribunal wrote, are “committed by men, not by abstract entities,” who may be held criminally responsible for transgressing international law.3 Thus was born – as a practical matter – the field of international criminal law. The inverse of the Nuremberg accountability principle – that all human beings not only have duties but rights under international law – spawned the modern era of international human rights. As is well known, the promise to build upon the Nuremberg trial and judgment remained unfulfilled for nearly fifty years, and the international criminal tribunal promised in Article VI of the 1948 Genocide Convention4 was never established. Indeed, the Nuremberg precedent notwithstanding, it is worth recalling that in 1994, as genocide was engulfing Rwanda, there was no

1 See, e.g., Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, Report Presented to the Preliminary Peace Conference 14 Am. J. Int’l L. 95 (1920). 2 United States et al. v. Göring et al., International Military Tribunal (Nuremberg), Judgment and Sentences, Oct. 1, 1946, reprinted in 41 Am. J. Int’l L. 172, 333 (1947). See also Robert Cryer, Håkan Friman, Darryl Robinson, & Elizabeth Wilmshurst, An Introduction to International Criminal Law and Procedure 94 (2007). 3 Göring et al., supra note 2, at 221 (1947). 4 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277. 120 Sadat functioning international criminal tribunal or court anywhere in the world. The Security Council had adopted a resolution to establish the ICTY on May 25, 1993,5 but the Yugoslavia Tribunal struggled to establish its credibility and begin its operations, making the establishment of a second tribunal for Rwanda difficult for many to envisage.6 Moreover, the future of the ICTR seemed precarious indeed when the Rwandan Unity government voted against the Tribunal upon its establishment by the Security Council, objecting, among other things, that it would not administer the death penalty.7 This difficult relationship with the Rwandan government continued, ebbing and flowing, but always politically sensitive, and it has certainly not helped the ICTR to carry out its mandate to foster peace and reconciliation in Rwanda.8 Indeed, although the United Nations commission investigating the 1994 genocide concluded that the RPF had committed war crimes during 1994,9 it has seemingly been impossible for the ICTR to indict RPF members for a variety of political and legal obstacles, a point I will return to later. The ICTR was initially a tiny organization, often neglected by the international community given its great distance from The Hague and New York.10 Underfunded, and permitted only one small courtroom and two trial chambers to address possible crimes involving the murder of hundreds of thousands of human beings, the first hearing of the Tribunal, presided over by Senegalese Judge Laïty Kama, took place in a small room with a leaky ceiling with “a couple of tables, a few dozen chairs, one or two interpreters, and a squad of security guards.”11 The ICTR also suffered from allegations of corruption and several

5 Resolution 827 on the International Criminal Tribunal for the former Yugoslavia, U.N. Doc. S/RES/827 (25 May 1993). 6 ICTY Office of the Prosecutor, The Early Years: 1993–1997, available at http://www.icty.org/ sid/95#earlyyears (accessed July 9, 2012). 7 U.N. SCOR, 49th Sess., 3453d mtg., at 13–17, U.N. Doc. S/PV.3453 (Nov. 8, 1994). 8 See, e.g., Leila Nadya Sadat, “Transjudicial Dialogue and the Rwandan Genocide: Aspects of Antagonism and Complementarity,” 22 Leiden J. Int’l L. 543 (2009); Luc Reydams, “The ICTR Ten Years On: Back to the Nuremberg Paradigm?,” 3 J. Int’l Criminal Justice 977 (2005); Peter Uvin & Charles Mironko, “Western and Local Approaches to Justice in Rwanda,” 9 Global Governance 219, 220–21 (2003). 9 Final report of the Commission of Experts established pursuant to Security Council resolution 935 (1994), paras. 93–100, U.N. Doc. S/1994/1405 (Dec. 9, 1994). See also Reydams, supra note 8. 10 Leila Nadya Sadat, Some Recent Developments at the ICTY and the ICTR, AIDP Instant Analysis (Nov. 10, 2003), http://law.case.edu/war-crimes-research-portal/instant_analysis. asp?id=2. 11 Thierry Cruvellier, Court of Remorse: Inside the International Criminal Tribunal for Rwanda 5 (2010). The Contribution of the ICTR to the Rule of Law 121 prominent staff were forced to resign in 1996;12 it would take another five years for the tribunal to really find its footing. This inauspicious beginning notwithstanding, slowly but surely the ICTR established itself as a functioning, important and indeed vital institution, growing to peak capacity with more than a thousand staff members, four modern courtrooms, and an annual budget of US $140 million.13 Although the initial appointment of a sole prosecutor for both the ICTR and ICTY sometimes made the workload impossibly difficult and was objected to by the Rwandan government, it may also have ensured that the two tribunals had equal pres- tige in the early days of their operations. This could also be said of the decision to establish a common appeals chamber for both the ICTR and the ICTR. The ICTR managed to acquire custody of key accused so that it could begin its work sooner than the ICTY did, and its first trials were of extraordinary historic significance. Akayesu,14 decided in 1998, just after the judgment in the Tadić case from the ICTY, was the first conviction for genocide since the convention’s adoption in 1948, and Kambanda was the first head of state convicted under that treaty.15 Since its initial rocky start, the ICTR has rendered hundreds of decisions and 53 judgments, indicted 93 persons, completed trials of 72 persons, heard more than 3,500 witnesses,16 and, along with its sister tribunal, the ICTY, created a jurisprudence that has both transformed international law and directly affected State behavior.17 Recall how ICTR/ICTY prosecutor Louise Arbour told NATO that it was within her jurisdiction as it was conducting its air

12 Barbara Crossette, U.N. Investigating Rwanda War Crimes Tribunal Officials, N.Y. Times at 3 (Oct. 30, 1996), available at http://www.nytimes.com/1996/10/30/world/un-investigating- rwanda-war-crimes-tribunal-officials.html?pagewanted=all&src=pm. 13 Data acquired and compiled by author through interviews with ICTR staff in Arusha, as well as by author’s office from the annual Reports of the International Criminal Tribunal for Rwanda, available at http://www.unictr.org/tabid/117/default.aspx. 14 The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR 96-4-T, Judgment (Sept. 2, 1998). 15 The Prosecutor v. Jean Kambanda, Case No. ICTR 97-23-S, Judgment and Sentence (Sept. 4, 1998). 16 The ICTY had heard roughly 4,300 witnesses as of 2012. ICTY Registry, Witness Statistics, available at http://www.icty.org/sid/10175 (accessed 1 July 2012). The ICTR heard approximately 3,868 witnesses. Data compiled from the annual Reports of the International Criminal Tribunal for Rwanda, available at http://www.unictr.org/tabid/117/default.aspx (accessed and compiled June 2012) and from Case Minutes, Judgments, and Summaries of Judgments, available at http://www.unictr.org/Cases/tabid/204/Default.aspx (accessed and compiled June 2012). 17 See, e.g., Catharine A. MacKinnon, “The ICTR’s Legacy on Sexual Violence,” 14 New. Eng. J. Int’l. & Comp. L. 211 (2008). 122 Sadat campaign against the Federal Republic of Yugoslavia.18 There is no doubt that NATO member states understood that they were obliged to comply with the laws of war, and the number of civilian casualties from their action are extra ordinarily low when compared to air campaigns that have not been within the jurisdiction of a war crimes tribunal. It is unfortunate that the temporal jurisdiction of the Rwanda Tribunal was not equally extensive. The ad hoc international criminal tribunals have provided specific deterrence by incarcerating individuals convicted of international crimes, acquitted those against whom charges could not be sufficiently proven, and have profoundly affected the political landscape in the countries they were established to address. The danger of continued violence and even renewed genocidal attacks was very real in 1994, and the Hutu Power movement, which had not only targeted Tutsis for extermination but taken aim at moderate Hutu oppo- nents, remained a real threat. Rwanda has abolished the death penalty and undertaken other reforms in order to promote the transfer of cases from the ICTR to Rwandan courts, and relations between the tribunal and the Rwandan government have gradually improved over time. The ICTR has employed thousands of professional staff from more than a hundred countries, and more than a thousand interns have worked here.19 One cannot ignore this human element of the work of the Tribunal; thousands of African staff members have been engaged in this project known as international justice for the past seventeen years, and they, their families, and their communities have been associated with its inner workings, its modes of operation, and its human rights orientation. The African Court for Human and Peoples’ Rights has been located in Arusha, Tanzania, not far from the ICTR building, and the ICTR has directly assisted the aspirations of the East African Community of nations to be known for their commitment to international peace and justice, rather than for their periods of instability and ethnic and political violence.20 As Adama Dieng recently wrote, this capacity-building legacy of the ICTR, which has included workshops, trainings, and the dissemination of public information:

18 See David Scheffer, All the Missing Souls 279–80 (2011); see also Statement of Prosecutor Louise Arbour to the Press, March 31, 1999, available at http://www.icty.org/sid/7778/en; ICTY Weekly Press Briefing of May 5, 1999, available at http://www.icty.org/sid/3397/en. 19 Data compiled from the annual Reports of the International Criminal Tribunal for Rwanda, available at http://www.unictr.org/tabid/117/default.aspx (accessed and compiled June 2012). 20 Arusha – sometimes called the “Geneva of Africa” – is also home to the headquarters of the East African Community, the regional intergovernmental organization of Kenya, Uganda, Tanzania, Rwanda, and Burundi. About EAC, East African Community, http:// www.eac.int/index.php/about-eac.html. The Contribution of the ICTR to the Rule of Law 123

has had an impact on the daily lives of many people: the Rwandans who follow the Tribunal’s proceedings on the screens of the ICTR information centers, the prisoners in Benin who today receive two meals per day instead of one, and the witnesses who may be called to testify before the Supreme Court of Rwanda and who will soon be able to do so without any fear for their security . . .21

Likewise, the work of the ICTR brought thousands of non-Africans to Africa who probably would not otherwise come.22 They have grappled with the complexities of the Rwandan genocide, and have, one hopes, come away with a deeper appreciation for the peoples and nations of Africa than they had before they arrived. More than a dozen of my students have interned at the ICTR, learned about international justice, experienced African hospitality, and come away changed for the better. As they complete their studies and become successful practicing attorneys, their experience with and understanding of East Africa will stay with them for the rest of their lives. Multiply these and so many other stories by hundreds or thousands, and one sees that the work done here has been like a stone cast into a pond – sending ripples extending all the way to far off and as yet unknown shores. Fatou Bensouda, who was just sworn in as ICC Chief Prosecutor, began her international criminal law career at the ICTR, from 2000 to 2004 as Legal Advisor and Trial Attorney, then Senior Legal Advisor and Head of the Legal Advisory Unit;23 U.S. Ambassador-at-Large and head of the Office of Global Criminal Justice Stephen Rapp worked at the ICTR as well from 2001–2007, as Senior Trial Attorney and Chief of Prosecutions;24 and Robert Petit, now with the Canadian war crimes division, was at the ICTR from 1996 to 1999 as a legal officer, and subsequently became Co-Prosecutor of

21 Adama Dieng, “Capacity-Building Efforts of the ICTR – A Different Kind of Legacy,” 9 Northwestern J. Int’l. Hum. Rts. 403, 405 (2011). See also Symposium on the Legacy of International Criminal Courts and Tribunals for Africa, International Center for Ethics, Justice, and Public Life (2011). 22 Data compiled from the annual Reports of the International Criminal Tribunal for Rwanda, available at http://www.unictr.org/tabid/117/default.aspx (accessed and compiled June 2012). See also Dieng, supra note 21, at 410. 23 Office of the Prosecutor of the International Criminal Court, The Deputy Prosecutor (Prosecutions), available at http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/ Office+of+the+Prosecutor/Biographies/The+Deputy+Prosecutor+_Prosecutions_.htm (accessed 1 July 2012). 24 U.S. Department of State, Biography of Stephen J. Rapp, available at http://www.state. gov/r/pa/ei/biog/129455.htm (accessed 11 July 2012). 124 Sadat the Khmer rouge tribunal.25 These are just a few of the prominent individuals who have spent time at the ICTR, and then proceeded to take that experience with them as they pursue justice and accountability elsewhere.

3 From Arusha to The Hague

The ad hoc Tribunals for the former Yugoslavia and Rwanda paved the way for the establishment of the International Criminal Court, a permanent institution which has succeeded them. Indeed, it is fair to say that without the establishment of the two ad hoc tribunals, there might never have been a successful conclusion to the negotiations in Rome. Although the ICTR and ICTY continued to experience growing pains during the period from 1995–98 when the Rome Statute was being negotiated, their establishment, the enthusiasm of international lawyers and NGOs for their operations, and their ability to overcome both technical and practical difficulties proved that international justice could be successfully undertaken. I was fortunate to have been present during the negotiation of the ICC Statute; it is clear that its negotiation took place against the backdrop of an international justice “movement” that the establishment of the ICTY and ICTR had unleashed, and which later came to include not only those two tribunals, but the Khmer Rouge Court in Cambodia, the East Timor Special Panels, and the Special Tribunal for Lebanon.

4 An Uncertain Long-Term Legacy?

As the ad hoc tribunals wind down, it is appropriate to ask whether they fulfilled their mandates, and what their legacies are or may be in the future. In an earlier essay, I wrote about the potential difficulties that may flow from the failure of the ICTR to fully investigate or indict any members of the RPF, and the accusation of “victor’s justice” that may flow from that decision.26 This is a difference between the ICTR and the ICTY and the Special Court for Sierra Leone; prosecutors at the ICTY and the SCSL indicted individuals from all sides of the conflicts they were established to address. Although the Prosecutor of the Special Court for Sierra Leone was heavily criticized in some quarters

25 Extraordinary Chambers in the Courts of Cambodia, Mr. Robert Petit, available at http:// www.eccc.gov.kh/en/judicial-person/mr-robert-petit (accessed 1 July 2012). 26 Sadat, Transjudicial Dialogue, supra note 8, at 546. The Contribution of the ICTR to the Rule of Law 125 for indicting the Civil Defense Forces,27 most observers have suggested that indicting – without necessarily creating a moral equivalence between them – individuals from each side to a conflict, assuming that a prima facie case exists that they have committed crimes within the jurisdiction of the court or tribunal, is preferable to indicting one side only. The ICTY managed to indict individuals from all sides in the conflict, and has generally been praised for doing so.28 Conversely, criticisms of the first ICC Prosecutor have often centered upon his failure to do so in certain of the situations within his jurisdiction.29 Will this fatally damage the ICTR’s legacy? It depends. First, tu quoque is not a defense. Indeed, the Nuremberg tribunal faced the same issue – the allies sat in judgment of the defeated German accused. The firebombing of Dresden? No jurisdiction. The Katyn massacre? Responsibility wrongly assigned.30 Had the prosecution made mistakes? Indeed, it had, by indicting the wrong Krupp, for example.31 Was the judgment perfect? Certainly not. Yet what allowed that judgment and that trial to have the legacy it did was that the trial was undertaken with great seriousness, and the men and women working on it committed themselves to doing their best. As Justice Robert Jackson admitted in his opening statement, the case was not perfect. Yet he was confident – and history later agreed – that it met the fundamental due process standards of the time. As he said in his opening statement, “The recoil of the Nazi aggression has left Germany in ruins. . . . The German, no less than the non-German world, has accounts to settle with these defendants.”32 Second, the allies recognized that trials alone could not bring about peace and reconciliation in Europe. The IMT’s work was accompanied by an extraordinary educational effort aimed at Germany by the United States, in particular, by the entry of Germany into the European communities and by the Marshall Plan, which poured billions of dollars into European countries that had been devastated by the war, including Germany.33 The decision to focus upon

27 See, e.g., Charles Chernor Jalloh, “Special Court for Sierra Leone: Achieving Justice?,” 32 Mich. J. Int’l L. 395, 425 (2011). 28 See, e.g., Adam Jones, Genocide: A Comprehensive Introduction 536 (2011). 29 See, e.g., Phil Clark, “State Impunity in Central Africa,” N.Y. Times (Apr. 1, 2012), http://www .nytimes.com/2012/04/02/opinion/02iht-edclark.html. 30 Soviet officials eventually admitted responsibility for the Katyn massacre. See Masha Hamilton, Gorbachev Documents Soviet Guilt at Katyn, L.A. Times, Apr. 14, 1990, at A1. 31 Telford Taylor, The Anatomy of the Nuremberg Trials 115 (1992). 32 United States et al. v. Göring et al., Justice Jackson’s Opening Statement for the Prosecution, Nuremberg International Military Tribunal (Nov. 21, 1945), available at http://law2.umkc .edu/faculty/projects/ftrials/nuremberg/jackson.html. 33 Foreign Assistance Act of 1948, Pub. L. No. 80-472, 62 Stat. 137. 126 Sadat economic redevelopment and institution building was critical, and public opinion polls taken during the post-war period show that although initially there was great German resistance to the Nuremberg trials, ultimately, Germany came to embrace them as its own legacy.34 Germany is now one of the most stalwart supporters of the International Criminal Court and the ad hoc tribunals. What this historic lesson suggests is that having almost completed its trial work, the ICTR – and now the Residual Mechanism – must undertake its legacy work, work that is equally important if the lessons of peace, justice and reconciliation are to take hold permanently in Rwanda. Moreover, it suggests very much that a key element of the ICTR’s success lies in economic development, educational programs and capacity building tasks that are largely outside the purview of either the ICTR or MICT’s specific mandate, but which they can encourage others to pursue. One of the critical tasks of the Residual Mechanism, in addition to technical tasks devoted to the archives, solving the problems involving the relocation of acquitted persons, monitoring proceedings in Rwanda and, hopefully, trying fugitives, will be to insist upon development assistance and promote capacity building and educational programs to ensure that the legacy of accountability and peace takes hold.35

5 Building New Justice Capacity

Looking to the future, it may be useful to ask how the international community will fill the gap left by the winding up of the ad hoc tribunals given the limited capacity and restrictive jurisdictional provisions of the ICC. As of this writing, several judges have just left the ICTR; many more have been winding up their work here, at the ICTY, and at the Special Court for Sierra Leone over the past few years. The ICC will presumably not have the capacity to try as many accused from a situation country as the ICTR and ICTY did; today it has eighteen judges and eight situations; whereas the ICTY has twenty-six judges and until recently the ICTR had eighteen judges. It therefore seems that shor- ing up domestic capacity will be essential, as will, perhaps, the establishment of international criminal courts or tribunals with either a regional focus or a different subject matter jurisdiction than exists presently at the ICC. Proposals have been advanced to develop regional international criminal tribunals that can sit closer to situation countries than the ICC and give countries more

34 See Michael Scharf, Balkan Justice 13, 97 (1997). 35 This work has already begun. See, e.g., Dieng, supra note 21. The Contribution of the ICTR to the Rule of Law 127

“ownership” of international justice mechanisms;36 to consider tribunals covering non-ICC crimes such as terrorism or piracy; and to continue to promote positive complementarity at the ICC so that national systems can develop war crimes sections within their ministries of justice and give them the legal tools they need to start prosecuting cases on their own, including, as I have written about elsewhere, a comprehensive international convention on crimes against humanity.37

6 Conclusion

Rwanda remains one of the poorest countries in the world, with a human development index that ranks it 166 of 187 countries that were measured last year.38 Although it has also experienced tremendous economic growth in the past decade, it has a long way to go in climbing out of the poverty that helped fuel the violence in 1994. International assistance following the genocide, including the work of the ICTR, has helped, but not enough. Resolution 955 adopted in 1994 stated that one purpose of the ICTR would be to contribute to national reconciliation and the restoration and maintenance of peace, and external indicators certainly suggest that Rwanda is internally more stable than before.39 Yet just recently, the United Nations released a report suggesting that the Kagame government may be involved in supporting armed groups in eastern Congo, allegations which the government has vehemently denied.40 The fact that the ICTR was unable to undertake cases involving RPF accused may fuel a sense of impunity among members of the current government and lead to continued instability in the region, as well as contribute to a feeling of persecution among Hutus. It will be important for the ICTR’s legacy to

36 Aryeh Neier, “An Arab War-Crimes Court for Syria,” N.Y. Times, April 5, 2012, at A23. 37 See Forging a Convention for Crimes Against Humanity (Leila Nadya Sadat ed., 2011). 38 United Nations Development Programme, Human Development Index 2011 Rankings, available at http://hdr.undp.org/en/statistics/ (accessed 2 July 2012). 39 S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994) (“the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the process of national reconciliation and to the restoration and maintenance of peace”). 40 United Nations Group of Experts on the DRC, Addendum to the Interim report of the Group of Experts on the DRC submitted in accordance with paragraph 4 of Security Council resolution 2021 (2011), U.N. Doc. S/2012/348/Add.1 (27 June 2012); see also East DR Congo faces ‘catastrophic humanitarian crisis,’ BBC News, http://www.bbc.co.uk/news/world- africa-19158901 (Aug. 7, 2012). 128 Sadat emphasize the individual criminal accountability of the accused, who killed moderate Hutus such as the former Prime Minister as well as participated in the genocide, rather than speak in terms of collective responsibility. Unlike the Nuremberg Tribunal, which was located in Germany itself and benefited from Germany’s unconditional surrender occupation by allied forces, the seat of the ICTR was located far from the situation country, and the tribunal needed the cooperation of both the Rwandan government and the Security Council to do its work. This required concessions as to the temporal jurisdiction of the ICTR and eliminated the possibility of continued or ongoing jurisdiction. The establishment of the Residual Mechanism suggests that the international community remains cognizant of the need to promote the legacy of the ICTR, but it remains to be seen whether the level of funding and commitment necessary to complete the ICTR’s work will be forthcoming. As an aside, it is disap- pointing that Rwanda has not ratified the Rome Statute for the International Criminal Court, suggesting that it may not have entirely embraced the lessons of the past. Finally, what of healing and national reconciliation? Alas, that is not a job that can be undertaken by an international court or tribunal – for healing and national reconciliation cannot come into being with the stroke of a pen. Healing and forgiveness are profoundly personal acts that involve the decision of each individual affected to forgive – or at least to accept what happened – or to reject forgiveness as an option. In Jean Hatzfeld’s stories of survivors, there are those for whom the genocide never ended. They hear screams every night when they go to bed and believe they can never forgive the killers. There are others who are ready to move on, to forgive, to be at peace.41 For both groups, life may be a waking nightmare. This is true for the survivors and even, sometimes, for killers haunted by the horror of what they have done. The healing of a community in the wake of such a cataclysmic event cannot happen quickly, in accordance with the Security Council’s need for an orderly and economics- driven process. It takes decades, time during which the international community can try to create a safe space within which those traumatized by their experiences may overcome them. Consider the case of Elie Wiesel, who, nearly 70 years after his incarceration in Auschwitz, still burns with the fire of anger, shame, and despair. One of the most searing and shameful images in the film footage taken during the genocide was of Western workers fleeing their embas- sies and taking their pets with them, while leaving behind their stricken and faithful Rwandan staff who were about to be butchered. One worries whether, with the winding up of the ICTR and the transition to the Residual Mechanism,

41 Jean Hatzfeld, Into the Quick of Life: The Rwandan Genocide, the Survivors Speak (2008). The Contribution of the ICTR to the Rule of Law 129 we have, once again, left Rwanda too soon, with too little. Can the Residual Mechanism continue to hold space for survivors, and work to ensure the success of the ICTR’s legacy? It is too early to know. Much was achieved at the ICTR in the past nearly two decades, and, as President Meron observed in his speech on the occasion of the transition to the Residual Mechanism, to continue the positive elements of that legacy, the international community must renew its commitment to the principles that were first articulated at Nuremberg, and reinforced in these courtrooms: That no one is above the law, that individuals have human rights to life and dignity, that international justice is possible and can work, and that all human beings are united in a common endeavor to promote peace and justice. The principles found in the judgments of the ICTR must also be made to apply not only to Africans who may have transgressed them, or who may do so in the future, but to individuals living in rich and powerful states. As the work of the ICTR winds down, those committed to international peace and justice see that there remains a long road ahead. Even the longest journey, however, begins with the first step, and the work of the ICTR has helped Rwanda, Africa, and the world take a significant step forward. As Chief Prosecutor of the ICTR, Hassan Bubacar Jallow contributed extensively to the Tribunal’s legacy. It is an honor to have contributed to this festschrift in his honor. chapter 11 The Legacy of International and Hybrid Courts – Are Human Rights More Respected? A Tribute to Justice Hassan B. Jallow

David Tolbert and Laura A. Smith

1 Introduction

1.1 A Personal Reflection I have known and or worked with all of the modern day international chief prosecutors as well as a few prosecutors from the Nuremberg era. Justice Hassan B. Jallow stands out as a lawyer with not just an excellent legal mind but also for his outstanding judicial temperament and judicious consideration of all sides of every issue. I had the good fortune to cross paths often with Justice Jallow when I was Deputy Chief Prosecutor at the International Criminal Tribunal for the former Yugoslavia (ICTY) and he was Chief Prosecutor at the International Criminal Tribunal for Rwanda (ICTR), as well as earlier when he served on a group of experts appointed by the United Nations (UN) Security Council to look at the practices of the ad hoc tribunals. I was always struck by Hassan’s close study of the issues and the fairness and consideration that he applied to every situation. I saw this as we discussed some of the mutual issues facing our respective tribunals and the legacies that we hoped our institutions would have. I was also able to witness first-hand his calm and considered approach to making decisions, large and small, when he invited me to participate in an interview panel for a senior position he was recruiting for the Office of the Prosecutor at the ICTR. His judicious and fair approach to the hiring process and his careful consideration of his colleagues’ views confirmed the traits of character I had observed on much larger stages. One would never know from Hassan’s quiet and considered manner that he plays a significant role as a leader across a wide swath of West Africa. When I stayed in a room next to Hassan’s in a New York hotel during a conference we were both attending, he was kind enough to invite me into his quarters where several men from his home area were visiting him. They were living in New York and working, apparently in laboring jobs, but it was clear that they revered him, and he treated them with courtesy and respect. They allowed me

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_012 The Legacy of International and Hybrid Courts 131 to engage in their conversation and to be present during their prayers. The dignity that Hassan showed that day was very moving to me indeed. I later learned that when he went home, people from far and wide came to visit him to pay him their respects as a great religious and community leader. Thus, the respect for Hassan goes well beyond the international legal community and has deep roots in his country, region and beyond.1

1.2 Matters of Legacy On the twentieth anniversary of the Rwandan Genocide, Justice Jallow poi- gnantly reflected on the state of the international human rights field:

Our ultimate goal must however be to give concrete realisation to the deep seated yearning for ‘Never again’. The implementation of effective international and national preventive strategies for the avoidance of mass atrocity must rank as a global priority. The international community needs to live up to its obligation to protect communities in danger of such mass atrocity. Above all we must create within each of our national communities an environment of good government based on respect for the rule of law, justice, democracy and human rights without discrimination, respecting the equality and equal rights of all persons. We must build communities of peace and reconciliation based on continuous dialogue. Such an environment is the strongest bulwark against the strife and conflict which often is the setting for the great tragedy that the world witnessed in Rwanda in 1994.2

Such reflection and guidance are characteristic of Justice Jallow who, through his work as Chief Prosecutor of the ICTR and the Mechanism for International Criminal Tribunals (MICT or Mechanism), has emphasized the importance of the fight against impunity and proposed concrete steps to ensure the legacies of the ICTR and ICTY. In this chapter we explore the concept of legacy in the context of internationalized courts and tribunals, focusing on the ad hoc tribunals, i.e., the ICTY and ICTR, and the hybrid courts, specifically the Special Court for Sierra Leone (SCSL). At the outset, we would note that the idea of the legacy

1 The personal reflections contained in this article are by David Tolbert. 2 Hassan B. Jallow, Statement by Justice Hassan B. Jallow, Chief Prosecutor, ICTR & MICT on the Commemoration of the 20th Anniversary of the Rwandan Genocide, (April 10, 2014) available at http://www.unmict.org/ictr-remembers/docs/statements/140410-prosecutor- jallow-arusha_en.pdf. 132 Tolbert and Smith of a court is, in most instances, an odd one. In common law countries and to some extent in regional courts, such as the European Court of Human Rights, one does speak of the legacies of certain legal doctrines, decisions or lines of decisions that affect or establish a body of law, such as human rights principles. However, this is simply a shorthand description of the impact of a specific case or group of cases. The ad hoc and hybrid courts face a very different arc of development and impact, as they have both limited jurisdictions and a limited lifespan. They are established to serve in extraordinary times, e.g., times of atrocity and breakdown of law and institutions, so they are by their nature temporary and, therefore, the term legacy has taken on a different dimension in these international courts that did not exist on the national level. Thus, how these courts think about and deal with the long-term impact or legacy of their efforts is an important consideration in carrying out their work, in contrast to national systems. In examining the question of legacy, we first look at how the international community, particularly the UN, has turned to the use of courts and tribunals to respond to the horrific atrocities and armed conflicts that occurred towards the close of the twentieth century, before the International Criminal Court (ICC) was established and prior to the time when some fatigue with judicial approaches began to set in. In the twenty years after the establishment of the first international tribunals since Nuremberg, we have witnessed the solidifica- tion of a robust corpus of international law and an extension of international tribunals and courts in a number of contexts across the globe. As the ad hoc tribunals now wind down, the question of how these courts will attempt to have a longer term impact, and thus questions of legacy, inevitably come to the fore. In light of Justice Jallow’s extensive professional experience in the area of international criminal justice, we seek to examine how the international and hybrid courts have defined their legacy, and discuss certain conceptions of what legacy should mean and how it should be evaluated. Ultimately, given the international courts’ underlying purpose of combat- ting impunity and bringing momentum to the vindication of the rights of victims,3 we would posit that the legacy of the ad hoc tribunals and hybrid courts is best defined in terms of whether the work of these courts has contributed towards societies where human rights are more respected. Obviously, at this early date, any findings are tentative, but on the long-term this seems

3 See S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/827 (May 25, 1993) [hereinafter ICTY Statute]; S.C. Res. 955, U.N. SCOR, 49th Sess., 3453rd mtg., U.N. Doc. S/RES/955 (Nov. 8, 1994) [hereinafter ICTR Statute]; S.C. Res. 827, U.N. SCOR, 4186th mtg., U.N. Doc. S/RES/1315 (August 14, 2000) [hereinafter SCSL Res. 1315]. The Legacy of International and Hybrid Courts 133 the appropriate frame to examine the legacy of these courts, as in some form this is what appears to be at the heart of the founders’ expectations for all of the tribunals as well as those of the relevant victim communities.4

2 Approaches to Legacy

And it is essential that, from the moment any future international or hybrid tribunal is established, consideration be given, as a priority, to the ultimate exit strategy and intended legacy in the country concerned.5 – UN Secretary General Kofi Annan

As those who work in the field of international criminal justice are keenly aware, the discourse on legacy has proliferated in recent years. There are various conceptions of how best to define a court’s legacy, some broad and some narrow in view. The UN has defined legacy as the ‘lasting impact on bolstering the rule of law in a particular society, by conducting effective trials to contribute to ending impunity, while also strengthening domestic capacity.’6 This approach also points to the extent to which a court has had a ‘demonstration effect’ by conducting fair trials independent of political considerations and compiling a historical record of the conflict.7 Additionally, legacy may be cast as an attempt to prevent a recurrence of crimes through precedents for legal reform, building trust in judicial processes, and promoting greater civic engagement on issues of accountability and justice.8 Finally, legacy, as posited in this chapter, is best measured in terms of a court’s impact on the development of human rights and the rule of law in local communities. The UN approach obviously comes with some authority and, in the authors’ view, rightly follows from the purpose and objectives outlined in the founding documents of the various international tribunals.9 Some may argue that these aspirations set the bar too high. While there is some strength in that argument,

4 See id. 5 U.N. Secretary-General, Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, ¶ 46, U.N. Doc. S/2004/616 (Aug. 23, 2004). 6 Office of the U.N. High Comm’r for Human Rights [OHCHR], Rule-of-Law Tools for Post- Conflict States: Maximizing the Legacy of Hybrid Courts, 4–5, U.N. Doc. HR/PUB/08/2 (2008). 7 See Caitlin Reiger, Int’l Ctr. for Transitional Justice [ICTJ], Where to From Here for International Tribunals? Considering Legacy and Residual Issues, 1 (2009), available at https://ictj.org/sites/ default/files/ICTJ-Global-Legacy-Tribunal-2009-English.pdf. 8 Id. 9 See ICTY Statute, ICTR Statute, SCSL Res. 1315, supra note 3. 134 Tolbert and Smith if one takes a teleological approach in interpreting the courts’ founding documents, we would posit that they provide a rough guide to establishing the key elements of a court’s legacy, including its impact on developing the rule of law and greater respect for human rights. Before turning to the modern iterations of international tribunals and courts, it is worth noting the first attempts to address atrocities through international justice were by the Nuremberg and Tokyo Tribunals following World War II. While subject to on-going and justified criticism for being one-sided or ‘victors’ justice’, as none of the victorious powers faced any charges in these tribunals, they did establish important precedents. For instance, both the Nuremberg and Tokyo Tribunal Charters provided for individual responsibility for crimes against peace, war crimes and crimes against humanity.10 Moreover, these tribunals were premised on a rejection of the historical defense of state sovereignty and, at least with respect to the defeated powers, held that no head of state or military leader can hide behind their title in order to commit crimes.11 The Nuremberg Principles12 further established that some crimes are so grave as to affect and endanger all of humankind, and therefore it is in the interests of all countries to ensure that those responsible are punished.13 This concept of crimes against humanity has since been a bedrock principle of modern international criminal law. While Nuremberg created a marker against impunity on an international or universal level, the efforts in some ways only ‘scratched the surface’ as most perpetrators did not face justice. This gradually changed over time in post-war Germany, and a number of important trials occurred in the 1960’s and beyond.14 In any event, despite considerable and legitimate criticism, the

10 United Nations, Charter of the International Military Tribunal – Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 [hereinafter Nuremberg Charter]; Charter of the International Military Tribunal for the Far East, 19 January 1946, amended April 26, 1946, TIAS 1589, 4 Bevans 20 [hereinafter Tokyo Charter]. 11 See, e.g., Nuremberg Charter, supra note 10 at art. 8; Principle III, Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, U.N. GAOR, 5th Sess., Supp. No. 12, at 11–14, U.N. Doc. A/1316 (1950) [hereinafter Nuremberg Principles]; Amnesty Int’l, The Legacy of Nuremberg, http://www.amnestyusa.org/our- work/issues/international-justice/international-and-internationalized-tribunals/the- legacy-of-nuremberg (last visited January 11, 2015). 12 Nuremberg Principles, supra note 11. 13 See Amnesty Int’l, supra note 11. 14 See, e.g., Frankfurt Auschwitz trials, a series of trials running from December 20, 1963 to August 19, 1965 charging 22 defendants under German law for their roles in the Holocaust The Legacy of International and Hybrid Courts 135

Nuremberg and Tokyo Tribunals nevertheless laid the groundwork for modern international criminal law and struck a blow at the deep pattern of impunity that existed across human history.

2.1 Ad Hoc Tribunals With the creation of the ad hoc tribunals some forty years after Nuremberg, so-named for their limited subject matter, temporal and territorial jurisdictions,15 a new chapter in the history of international justice began. In 1993, the ICTY was created with the mandate of bringing to justice those responsible for serious violations of international humanitarian law committed in the former Yugoslavia since 1991.16 In 1994, the ICTR was established to prosecute those responsible for the Rwandan genocide and other serious violations of international humanitarian law committed in the territory of Rwanda, and by Rwandan citizens in neighboring states, between January 1 and December 31, 1994.17 While the ICTY and ICTR mandates include references to their role in contributing to peace and reconciliation in their respective regions, the mechanisms for the implementation of such goals were not built into the Tribunals’ structures and legal frameworks.18 These Tribunals, though designed as temporary judicial bodies but now in operation for over twenty years, admittedly initially failed to envision their legacy or plan for the day when they would close their doors. This is hardly surprising given the turbulent conditions under which the Tribunals began their work and the challenging road that lay ahead. It was, however, in the formulation of their completion strategies19 that the ICTY and ICTR turned to addressing issues of legacy. Senior representatives of the ICTY have conceptualized court legacy as ‘that which the Tribunal will hand down to successors and others.’20 To this very general formulation, the Tribunal has also recognized that its legacy is not limited to judicial findings, records and archives, but also includes its contribution

as mid- to lower-level officials in the Auschwitz-Birkenau death and concentration camp complex. 15 See ICTY Statute, ICTR Statute, supra note 3. 16 ICTY Statute, supra note 3. 17 ICTR Statute, supra note 3. 18 See ICTY Statute, ICTR Statute, supra note 3. 19 In S/RES/1503 (2003) and S/RES/1534 (2004) the U.N. Security Council endorsed a three- phase plan or ‘completion strategy’ for the ICTY and ICTR, which envisioned completion of investigations by the end of 2004, completion of all first instance trials by the end of 2008, and completion of all work in 2010 (later amended). 20 ICTY, Assessing the Legacy of the ICTY – Background Paper (February 23–24, 2010), http:// www.icty.org/sid/10292 [hereinafter ICTY Legacy Background Paper]. 136 Tolbert and Smith to the rule of law in the former Yugoslavia, the development of international law, and its advancement of international justice.21 In 2010, in anticipation of the Tribunal completing its primary activities, the ICTY convened a conference in The Hague to provide a platform for ICTY principals, judges and staff, jointly with key stakeholders, to assess the legacy efforts of the court to date and share information, experiences and views on how best to develop a strategy that would ensure the legacy of the Tribunal.22 Given that the Tribunal’s concep- tualization of its legacy was still in its infancy stage, views on the necessary breadth and depth of the Tribunal’s legacy varied, but the need for a comprehensive legacy strategy stood as an accepted proposition.23 In the years leading up to the conference, the Tribunal had begun to amplify its legacy efforts by focusing on two major components: First, assisting domestic judicial systems in building their capacity to take responsibility for war crimes prosecutions after the Tribunal closes; and second, ensuring that courts and interested parties in the region have access to relevant materials from the Tribunal in a useable form.24 This strategy was developed on the principle that the Tribunal has a responsibility to the international community and the states of the former Yugoslavia to ensure the continuation of its work at the national level consistent with its mandate and objectives of its establishment.25 As part of these efforts, the ICTY put forth a comprehensive view of the various components it considers to form its legacy. These include:

– The factual findings on the crimes that occurred and the responsibility of the accused for those crimes. – The legal legacy of the Tribunal, including its rules of procedure and evidence; practices of the Tribunal, the Office of the Prosecutor, and the Registrar; and – perhaps most significantly – its judgements and decisions, which define the legal elements of crimes that must be established beyond reasonable doubt to establish the responsibility of the accused. These judgements, decisions and practices represent a contribution to the development

21 ICTY, Assessing the Legacy of the ICTY – 2010 Conference (February 23–24, 2010), http:// www.icty.org/sid/10293 [hereinafter ICTY Legacy Conference]. 22 See id.; Richard H. Steinberg, “Constructing the Legacy of the ICTY,” in Assessing the Legacy of the ICTY 4 (2011). 23 See ICTY Legacy Conference, supra note 21. 24 Id. 25 See ICTY Legacy Background Paper, supra note 20, at II.A. The Legacy of International and Hybrid Courts 137

of substantive and procedural international humanitarian law and international criminal law. – The records of the Tribunal, including audiovisual recordings of the proceedings, transcripts and the evidence admitted into its cases, and collec- tions of material gathered in the course of investigations. Combined, this material, some of it confidential, will constitute the archive of the Tribunal’s work. – The institutional legacy of the Tribunal, including its contribution to the creation of other international and hybrid criminal courts, particularly the development of the local judiciaries in the former Yugoslavia and their capacity to hold fair and effective war crimes proceedings. – The Tribunal’s regional legacy, promoting the rule of law in the former Yugoslavia and contributing to peace and stability in that region. Coupled with this impact is the Tribunal’s contribution to the national prosecution process and generally to providing a sense of justice to victims of the crimes committed during the wars in the former Yugoslavia, as well as to the local communities and the society at large. – The international community’s normative legacy, expressed through its support for creation and operation of the Tribunal, staking humanity’s claim to justice and increasing awareness of the struggle against impunity for serious crimes under international law.26

The ICTR, like its sister tribunal, extended the Tribunal’s concept of legacy beyond its judicial record and jurisprudence to contemplate capacity-building measures as well. While UN Security Council Resolution 955, which established the ICTR in 1994, did not provide for capacity-building in the mandate of the Tribunal, subsequent UN Security Council resolutions laid the groundwork for recognizing capacity-building as an important element of the ICTR’s legacy.27 The expansion of the Tribunal’s mandate to include capacity- building was not without troubles, however, as such initiatives relied wholly on voluntary contributions and the court faced funding constraints in realizing these activities.28

26 ICTY Legacy Background Paper, supra note 20; Steinberg, supra note 22, at 5–6. 27 See ICTR Statute, supra note 3; Adama Dieng, “Capacity-Building Efforts of the ICTR: A Different Kind of Legacy,” 9 Nw. J. Int’l Hum. Rts. 403, 406 (2011). 28 See Dieng, supra note 27, at 406–407. 138 Tolbert and Smith

The ICTR recognized early on that in order to achieve its mandate the Tribunal’s message of challenging impunity must extend beyond the courtrooms in Arusha, Tanzania, where the Tribunal is located, and reach the people of Rwanda, their political leaders, civil society, and the media.29 To this end, the Tribunal designed an outreach program which targeted all areas of Rwanda as its audience and strived not only to disseminate information but also promote capacity-building through a variety of initiatives.30 Such outreach efforts were attempted through mass media, workshops and trainings for jurists, advocates, and human rights activists from Rwanda on various topics and skills.31 Though these initiatives have a mixed record, their overall effect was positive, fostering a better understanding by Rwandan society of the genocide and facilitating better relations with the Tribunal.32 As the ad hoc tribunals drew closer to completion of their respective mandates, the need for a means or mechanism to continue select functions of the courts became clear. Thus, in 2010 the UN Security Council established the MICT for the purpose of carrying out a number of essential functions of the ICTY and ICTR after the respective closures of the courts. A key step in their completion strategies, the MICT is a temporary body tasked with continuing the ‘jurisdiction, rights and obligations and essential functions’33 of the ICTR and the ICTY, as well as maintaining the legacy of both institutions.34 In 2012, the UN Security Council appointed Justice Jallow to serve as Prosecutor of the Mechanism.35 In this role, and as the Mechanism gradually takes over the functions of the ICTY and ICTR, Justice Jallow will continue to play an integral part in the mandate of preserving the Tribunals’ legacy. In 2014 the ICTR commemorated the twentieth anniversary of the Rwandan genocide and the international justice community stood in solidarity with the people of Rwanda in remembrance of this grave tragedy.36 The anniversary served as a point of reflection for many of those working in the fields of human rights, accountability and rule of law and provoked critical evaluation of where

29 See id. at 407. 30 See id. 31 Id. at 407–411. 32 See id. at 411. 33 S.C. Res. 1966, U.N. SCOR, 6463rd mtg., U.N. Doc. S/RES/1966 (Dec. 22, 2010). 34 U.N. Mechanism for International Criminal Tribunals [MICT], http://www.unmict.org/ en/about (last visited January 11, 2015). 35 Press Release, Security Council, Security Council Appoints Hassan Bubacar Jallow Prosecutor of International Residual Mechanism for Criminal Tribunals, U.N. Press Release SC/10561 (February 29, 2012). 36 See Jallow, supra note 2 at 5. The Legacy of International and Hybrid Courts 139 we stand today in the fight against impunity. Those in the international justice field and beyond were reminded of the continuing need for international efforts to prevent mass atrocities and many took a hard look at the contributions of international courts to this struggle for human rights.

2.2 Hybrid Court: SCSL Drawing upon the lessons learned from the ad hoc tribunals, at the turn of the twentieth century the international community elaborated on its commitment to ending impunity for serious international crimes with the establishment of a new model of international court: the ‘hybrid court.’ Hybrid courts are defined as courts of mixed composition and jurisdiction, encompassing both national and international aspects, usually operating within the jurisdiction where the crimes occurred.37 Examples of hybrid courts include the SCSL, the Special Panels and Serious Crimes Unit in East-Timor, the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the Special Tribunal for Lebanon (STL).38 In the evolution of international and hybrid courts, the SCSL stands as the prominent example that can be examined in terms of deliberate legacy planning during the lifespan of the Court as well as continuation of legacy efforts after the Court’s closure. The SCSL, established in 2002, was charged with the mandate of bringing to justice those who bore the greatest responsibility for war crimes, crimes against humanity, other serious violations of international humanitarian law, and certain violations of Sierra Leonean law committed during the country’s decade-long civil war.39 In addition to its specific mandate,

37 OHCHR, supra note 6 at 1. 38 In addition to the SCSL (see infra), examples of hybrid courts include the Special Panels for Serious Crimes in East Timor, the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the Special Tribunal for Lebanon (STL). The Special Panels for Serious Crimes in East Timor were established in 2000 by the UN, acting as the transitional authority between the end of the Indonesian occupation in 1999 and the independence of East Timor in 2002. In 2001 the Cambodian National Assembly passed a law to create the ECCC to try serious crimes committed during the Khmer Rouge regime 1975–1979. In 2005, the Government of the Lebanese Republic requested the UN to establish a tribunal of an international character to try all those who are alleged responsible for the attack of February 14, 2005 in Beirut that killed the former Lebanese Prime Minister Rafiq Hariri and 22 others. 39 Statute of the Special Court for Sierra Leone, U.N. Doc. S/2002/246, Appendix II (Mar. 8, 2002) [hereinafter SCSL Statute]. 140 Tolbert and Smith the SCSL also had a broad mandate to contribute to the consolidation of peace and to foster the rule of law.40 While the Court’s founding documents do not explicitly reference the term ‘legacy’, they do refer to such broader aims as dealing with impunity and developing respect for the rule of law;41 consequently the Court has come to consider legacy as a core commitment in support of its mandate. However, the lack of explicit reference to legacy in the Court’s mandate resulted in legacy projects falling outside of the Court’s core budget, which in contrast to its predecessor ad hoc tribunals was fully dependent on voluntary contributions from interested states. During its lifespan, the Court struggled with the inability to raise sufficient funds for its core mandate, thereby placing legacy initiatives in an even more precarious position. The SCSL, without putting forth its own definition of the term, developed a working concept of legacy. The Open Society Justice Initiative (OSJI) reported that a court white paper affirmed the SCSL’s commitment to ‘engage in activities that go beyond the boundaries of the courtroom and to contribute to efforts being made to address the root causes of the conflict, causes which continue to impede the administration of justice in Sierra Leone and which led to the creation of the Court in the first place.’42 One such initiative was the National Victims Commemoration Conference, which the Court held in collaboration with Sierra Leonean civil society groups and the government in 2005. Further, the SCSL engaged in deliberate legacy planning and established a Legacy Working Group. The group was tasked with focusing on five key areas: (1) developing the capacity of the national legal profession; (2) promoting the rule of law and accountability in Sierra Leone; (3) promoting human rights

40 International Criminal Tribunal for Rwanda [ICTR] & Int’l Ctr. for Ethics, Justice and Public Life, Brandeis Univ., Symposium on the Legacy of International Criminal Courts and Tribunals in Africa, 35, available at http://www.brandeis.edu/ethics/pdfs/international justice/Legacy_of_ICTR_in_Africa_ICEJPL.pdf [hereinafter ICTR Legacy Symposium]. 41 See SCSL Res. 1315, supra note 3 at ¶ 7 (‘Recognizing that, in the particular circumstances of Sierra Leone, a credible system of justice and accountability for the very serious crimes committed there would end impunity and would contribute to the process of national reconciliation and to the restoration and maintenance of peace’); see also Viviane E. Dittrich, “Legacies in the Making: Assessing the Institutionalized Legacy Endeavor of the Special Court for Sierra Leone,” in The Sierra Leone Special Court and its Legacy: The Impact for Africa and International Criminal Law, 685 (Charles Jallow ed. 2013). 42 Open Society Justice Initiative [OSJI], Legacy: Completing the Work of the Special Court for Sierra Leone, 5 (2011) available at http://www.opensocietyfoundations.org/sites/default/ files/legacy-scsl-20111101.pdf (citing Special Court for Sierra Leone Legacy White Paper, 2 (Sept. 26, 2005) on file with OSJI). The Legacy of International and Hybrid Courts 141 and international humanitarian law; (4) promoting the role of civil society in the justice sector; and (5) assisting the government of Sierra Leone in assessing possible uses for the site of the court beyond the lifespan of the trials.43 Though the Legacy Working Group was well-intentioned, funding constraints and internal coordination issues hampered its effectiveness. Notably, as part of the legacy phase of the SCSL’s completion strategy, the Court addressed some of the concerns raised by Sierra Leoneans who felt that the restoration of the national judiciary, civil society, and the rule of law were critical to extending the long-term impact of the Court beyond those convicted.44 In that sense, it has been said the legacy phase of the SCSL’s completion strategy reflected the popular will of Sierra Leoneans.45 In 2013 the SCSL closed its doors, thus becoming the first international court since Nuremberg to complete its mandate. The remaining work of the Court transitioned to the Residual Special Court for Sierra Leone (RSCSL), which was established to manage the SCSL’s continuing legal obligations, including witness protection, supervision of prison sentences, and management of the SCSL archives among others.46 It remains to be seen whether the RSCSL will succeed in advancing the Court’s legacy, or even further the achievements of the Court. In any event, the SCSL’s engagement in deliberate legacy planning served as an important institutional innovation, which maximized its potential to benefit the people of Sierra Leone as well as the international community.47

3 Are Human Rights More Respected as a Result of the International and Hybrid Courts?

It is clear from the above examples that international courts and tribunals have conceptualized legacy in various ways. In our view, the legacy of the ad hoc tribunals and hybrid courts is best defined in terms of actual cases investigated and tried, and the impact of those cases on the local community. The question of whether human rights are more respected as a result of the international and hybrid courts is a challenging but necessary one. With few studies, little

43 Id.; see also Vincent O. Nmehielle & Charles Chernor Jalloh, The Legacy of the Special Court for Sierra Leone, 30 Fletcher F. World Aff. 107, 113 (2006). 44 Nmehielle & Jalloh, supra note 43 at 111. 45 Id. 46 Special Court for Sierra Leone, Residual Special Court for Sierra Leone, http://www.rscsl .org/ (last visited January 11, 2015). 47 Nmehielle & Jalloh, supra note 43 at 122. 142 Tolbert and Smith empirical data, and the inherent difficulties in measuring such impact, it is not surprising that such claims are difficult to support. A more widely accepted proposition is that international and hybrid courts have the ability to contribute to a shift in culture where rights are more respected, with demands for increased accountability through increased rights awareness and the advancement of a global system of ending impunity for serious crimes.48 The extent to which this has been achieved, though recognizably too soon to tell in many cases, can be tentatively evaluated through an examination of the achievements and legacy efforts of the international and hybrid courts to date.

3.1 Legacy of Ad Hoc Tribunals An obvious starting point for assessing the achievements of the ad hoc tribunals is their legal legacy, that is their judgments, decisions and legal practices, as well as the substantive and procedural contributions of these judgments and practices to the development of international criminal and international humanitarian law. The records of the ICTY and ICTR show rich jurisprudence that helped to develop the field of international criminal law. Both the ICTY and ICTR have set landmark precedents, with trials of some of the most senior perpetrators of serious crimes and human rights abuses in their respective mandates, including former heads of state, government officials, and military commanders. Further, ICTY and ICTR jurisprudence has contributed to the normative advancement of individual criminal responsibility at the international level, and seeded judicial recognition of the concepts of joint criminal enterprise and command responsibility. Of note, their judicial interpretation elaborated on, inter alia, the elements of the crimes of genocide, crimes against humanity and war crimes. ICTY and ICTR jurisprudence holds great precedential value and has informed the work of national and international courts. Notably, the ICTR rendered the first conviction by an international court for genocide in Akayesu,49 and for genocide against a head of state in Kambanda.50 The groundbreaking precedent established by Akayesu, finding that rape may constitute an act of genocide and/or a crime against humanity, paved the way for prosecution of sexual crimes committed during armed conflict. At the ICTY, the milestone judgments on the Srebrenica massacre of 1995, the single most horrific event of the Balkan wars where some 8,000 Bosniak men and boys were slaughtered over the course of two days, maintain historical and legal importance. Of

48 See OHCHR supra note 6 at 17; Reiger, supra note 7 at 5. 49 Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment (2 September 1998). 50 Prosecutor v. Kambanda, Case No. ICTR 97-23-S, Judgment (4 September 1998). The Legacy of International and Hybrid Courts 143 significance, the ICTY upheld the charge of genocide in Krstić and in other cases for the bloody events that took place in Srebrenica.51 Furthermore, the ICTY’s verdict in Kunarac,52 examining the crimes of sexual violence that took place in the Foca ‘rape camps’ against Muslim women and girls, found rape as a crime against humanity and marked the first time an international tribunal convicted an individual exclusively on the basis of sexual violence. The ICTY and ICTR also contributed to procedural international criminal and international humanitarian law with the establishment of fair trial standards for domestic and international trials, and through judgments and decisions defining the scope of disclosure obligations and evidentiary requirements.53 For example, the ICTR was the first tribunal to convict a witness on the crime of perjury, thereby strengthening the bar against false testimony in international proceedings.54 As former ICTR President Byron once observed ‘the ICTR has strengthened the fight against impunity by not only prosecuting perpetrators of heinous crimes, but also by prosecuting those who aim to obstruct the court’s ability to do so.’55 Such actions proved instructive for the functioning of national and international courts. The wealth of experiences drawn from the ICTY and ICTR by the international community points to their strong institutional legacy, which is typically defined by a court’s contribution to other international and hybrid courts as well as their development of the local judiciary.56 Valuable lessons were learned, both positive and negative, from the experiences of the ad hoc tribunals, which in turn influenced the design of future international courts, notably the hybrid court model. Drawing from the lessons of the ad hoc tribunals, hybrid courts were thus designed to be more cost-effective and closer to affected communities by being located in the country where the conflict or violations occurred. Also, there was a capacity-building aspect in the hybrid courts as nationals and internationals worked side by side, which was not an established feature of the ad hoc tribunals. Despite these differences, the ad

51 Prosecutor v. Krstić, Case No. IT-98-33-T, Judgement (2 August 2001). 52 Prosecutor v. Kunarac et al., Case No. IT-96-23&23/1 (22 February 2001). 53 Gert-Jan Knoops, An Introduction to the Law of International Criminal Tribunals: A Comparative Study 9 (2014). 54 See Dennis C. Byron, Looking at Legacy and Looking Back on the Legacy Symposium, 14 New Eng. J. Of Int’l & Comp. L. 319, 321 (2008); ICTR Legacy Symposium, supra note 40 at 48. 55 Id. 56 Steinberg, supra note 22, at 6. 144 Tolbert and Smith hoc tribunals notably established the legal standards and case law that have been the foundation of international criminal law, including the ICC. The ICTY, in particular, has been recognized for its regional legacy and the strengthening of national judicial systems through direct contributions to national war crimes prosecutions in Bosnia and Herzegovina and throughout the region. While the ICTY’s early engagement in the former Yugoslavia was limited, the adoption of the Tribunal’s completion strategy provided for the transfer of cases to national courts in the region for trial.57 National judges trying war crimes in Bosnia and Herzegovina courts have highlighted that as a result of ICTY jurisprudence domestic courts started to apply the concept of joint criminal enterprise, which was novel to their legislation.58 The ICTY’s elaboration on command responsibility was further valued by domestic judges as instrumental to determining the factors to be taken into account when assessing this type of liability.59 Additionally, ICTY rules held procedural significance to national courts in the protection of victims and witnesses.60 Despite their achievements, rendered under difficult circumstances, the ad hoc tribunals do have their critics. Many claim that the Tribunals are too slow and costly.61 Over twenty years after their establishment and with price tags reaching the billions, there is indeed some merit to such claims.62 Victims often call for making the proceedings more expeditious. Such demands are reasonable, however, the slow pace and high expense stems in part from the difficulties of establishing institutions situated outside the subject country, the costs associated with travel, UN bureaucracy, translation requirements,

57 David Tolbert and Aleksandar Kontic, “The ICTY: Transitional Justice, the Transfer of Cases and Lessons for the ICC,” in The Emerging Practice of the International Criminal Court 145 (eds. Carsten Stahn & Mohamed M. El Zeidy 2011). 58 ICTY, The Legacy of the ICTY in the former Yugoslavia, 23, 45–46 (Nov. 6, 2012) (citing Judge Hilmo Vučinić, Court of Bosnia and Herzegovina (BiH) and Ibro Bulić, Prosecutor of the Office of the Prosecutor, BiH) available at http://www.icty.org/x/file/Outreach/ conferences_pub/naslijedje_mksj_sa-zg_en.pdf. 59 See id. at 45–46. 60 See id. at 24. 61 David Tolbert & Andrew Solomon, United Nations Reform and Supporting the Rule of Law in Post-Conflict Societies, 19 Harv. Hum. Rts. J. 29, 37 (2006) (citing Ralph Zacklin, The Failures of the Ad Hoc Tribunals, 2 J. Int’l Crim. Just. 541 (2004). 62 See Gordon N. Bardos, “Trials and Tribulations: Politics as Justice at the ICTY,” World Affairs (Sept./Oct. 2013) available at http://www.worldaffairsjournal.org/article/trials-and-tribu lations-politics-justice-icty; see generally Marieke Wierda & Anthony Triolo, “Resources,” in International Prosecutors (ed. by Luc Reydams, Jan Wouters & Cedric Ryngaert 2012). The Legacy of International and Hybrid Courts 145 and the complexities of the cases over which they preside.63 A more telling criticism, stemming from the Tribunals’ extraterritorial location, with the ICTY in The Hague and the ICTR in Arusha, Tanzania, points to the difficulties the Tribunals experienced in explaining their records to the people in the former Yugoslavia and Rwanda.64 While there were legitimate reasons for placing the Tribunals outside of the area where the crimes occurred – for instance it would have been impossible to establish the ICTY in war-torn Yugoslavia – none theless the physical separation has resulted in a lack of connection with the countries over which they exercise jurisdiction.65

3.2 Contributions to Accountability and Reconciliation What began as ad hoc responses to the atrocities committed during the conflicts of the former Yugoslavia and Rwanda set a precedent marking the beginning of a new era of international justice. The records of the ICTY and ICTR demonstrate clear contributions to the development of international justice and, to some extent, to national institutions addressing war crimes in the countries under their jurisdiction.66 Through the prosecutions of high-ranking officials at the ICTY and ICTR, impunity is no longer monolithic. Genocide denial in both the former Yugoslavia and Rwanda has been stymied in large part because of the work of the courts. However, while the ICTY and ICTR made important contributions to bringing justice to affected populations, the false supposition that trials in The Hague and Arusha would, ipso facto, produce reconciliation amongst the local communities was naive and has led to much criticism. Thus, the Tribunals have been ‘hoisted on its own petard’ by the claim that they could fulfill the goal of ‘achieving accountability and promoting reconciliation,’ as referenced in their respective mandates.

63 Tolbert & Solomon, supra note 61 at 37. 64 See id. 65 Id. 66 See Impact of the Yugoslav and Rwanda Tribunals: Lessons for the International Criminal Court (November 29, 2011) available at http://www.ictj.org/news/impact-yugoslav-and- rwanda-tribunals-lessons-international-criminal-court-0 [hereinafter ICTJ Legacy Panel]. In 2011 ICTJ and the Center for Global Affairs of New York University (NYU) co-hosted a panel discussion on the impact of international ad hoc tribunals in the former Yugoslavia and Rwanda, and the possible lessons these courts’ experiences hold for the ICC. In a discussion moderated by Jennifer Trahan of NYU Global Affairs, panelists Richard Goldstone, David Tolbert, Hassan Jallow, and Diane Orentlicher explored these issues from the perspective of actors and experts with rich experience working for international tribunals and extensively writing on related topics. 146 Tolbert and Smith

The omission of ‘legacy’ in the ICTY and ICTR mandates has resulted in variations in the interpretation – within the institutions themselves, in poli- cymaking circles, and in affected communities – of what these courts can and should achieve to enable the desired transformation of values in the societies under their jurisdiction.67 Further, tensions exist between the pressure to maximize efficiency and the Tribunals’ ability to focus on areas outside of their core mandates.68 A major dimension of protecting the positive legacy of these institutions, and the vehicle with the most potential for achieving accountability and promoting reconciliation, is ongoing outreach with affected communities. Outreach efforts by the Tribunals are seen as a way to bridge the gap between the courts and the communities they were intended to serve.69 Public opinion polls in the former Yugoslavia and Rwanda have shown differences between trial outcomes and their public perception, with vast numbers indicating they were uninformed about the trials’ goals and judgments.70 Oftentimes, impressions of trials were divided along ethnic lines.71 Despite the importance that outreach holds for achieving court objectives, the Tribunals have struggled to make the kinds of investments and commitments necessary to make outreach truly effective. In response to the pervasive denial of the facts established in its judgments, in 1999 the ICTY initiated the first outreach program in an international justice setting. The Tribunal perceived a clear need to have the rendering of justice both seen and accepted by the communities in which the crimes occurred. To this end, the ICTY later implemented the ‘bridging the gap’ program, which enabled Tribunal members to visit local communities to inform them about the trial proceedings and answer questions. Notwithstanding such initiatives, outreach was not universally accepted as an integral part of the core mandate of international courts; a proposition that is still contested by some policy- makers and practitioners. Even today, outreach programs are often viewed as a nonessential component of tribunal work, and the lack of prioritization has resulted in severe funding issues.72 The impending closure of the Tribunals will not diminish the continuing need for outreach to affected communities. The Tribunals’ contribution to the

67 Id. 68 Reiger, supra note 7 at 4. 69 ICTJ Legacy Panel, supra note 66. 70 Id. 71 Id. 72 Id. The Legacy of International and Hybrid Courts 147 creation of space for public debate about the past and accountability should not be undervalued.73 If accountability is to be achieved, however, responsibility for ongoing work, such as the bolstering of national justice systems, cannot rest solely with the Tribunals or their residual mechanism. While the Tribunals have provided an opening to accountability, they cannot complete the process alone. Ultimately, the preservation and promotion of the legacy of the ICTY and ICTR will depend on a broad range of stakeholders, including national governments, civil society, the UN and other international agencies, in addition to the Tribunals themselves. An important stage of establishing the Tribunals’ legacy is beginning now. For the legacy effort to continue to be credible, the ICTY and ICTR must maintain the quality of their respective judicial work throughout the completion of the last proceedings, and ensure the credible transfer of its cases and ongoing work to the MICT.74 National governments must partner with civil society to perform necessary outreach and capacity-building activities in order to support national ownership and the empowerment of local structures. Domestic authorities in the former Yugoslavia and Rwanda must continue to be encouraged to assume responsibility for suppressing impunity for war crimes, crimes against humanity and genocide, and for the process of achieving national reconciliation.75 Without these steps, the goal of accountability will not be achieved. Thus, the legacy of the Tribunals hangs in the balance.

3.3 Legacy of the Hybrid Courts As previously noted, hybrid and international courts have the ability to contribute to a culture shift through increased rights awareness and calls for accountability. Through the ‘demonstration effect’, internationalized courts and tribunals can impart norms and values on domestic systems by leading by example. The physical situation of most hybrid courts in the territory where the conflict took place enhances their potential for achieving such a culture shift. Therefore, it is imperative for a court to act independently from political considerations, and aspire to the highest standards of independence, impartiality, and the application of norms of due process and international human rights.76

73 Reiger, supra note 7 at 4. 74 See ICTY, Report of the President on the Conference Assessing the Legacy of the ICTY, 4 (April 27, 2010). 75 See Id. 76 See OHCHR, supra note 6 at 17. 148 Tolbert and Smith

The Office of the United Nations High Commissioner for Human Rights (OHCHR), in its Rule-of-Law Tools for Post-Conflict States: Maximizing the Legacy of Hybrid Courts (ROL Toolkit), examined the impact of hybrid courts on domestic justice systems of post-conflict states, noting that with the establishment of hybrid courts the concept of legacy gained prominence.77 This, in turn, may have the positive effect of ensuring a lasting legacy for the rule of law and respect for human rights.78 In the ROL Toolkit, OHCHR explored the potential for hybrid courts to contribute to a shift in culture where human rights may be more respected. Recognizing the lack of close analysis of this indirect form of impact, OHCHR nevertheless highlighted certain areas where such impact may be expected; the examples include fair trial standards, prosecutorial standards, transparency of public institutions and levels of professionalism, standards for detention and imprisonment, gender issues, fostering a human rights dialogue, and non-discrimination and equal employment.79 While a full exploration of these potential impact areas is beyond the scope of this chapter, there are a number of instructive points worth highlighting in brief. First, for hybrid courts to succeed in shifting a local culture towards respecting human rights and the rule of law, it is essential that they adhere to principles of due process, and uphold fair trial and prosecutorial standards. By adopting strong approaches to fair trial standards that, for example, recognize the importance of the role the defense plays and resource it accordingly, hybrid courts may have the effect of mobilizing domestic judicial systems and civil society towards demanding and upholding these norms as well. A tangible result might be improved legal assistance for indigent defendants in domestic courts. Additionally, by adhering to fair prosecutorial standards, including acting in an impartial manner, disclosing exculpatory evidence, not pursuing cases with insufficient evidence, and ensuring victims know their rights, hybrid courts encourage the broader application of fair trial standards by the national judiciary.80 Further, in order to achieve the desired culture shift, hybrid courts must be perceived as accessible and transparent. Access to court officials and information has a positive effect on public perceptions of a court, as do upholding standards of professional ethics and codes of conduct. OHCHR provided the example of hybrid courts giving rise to opportunities to demonstrate inter-

77 See OHCHR, supra note 6 at Foreword. 78 Id. 79 Id. at 17–18. The examples contained in the following two paragraphs draw primarily from the OHCHR ROL Toolkit. 80 Id. The Legacy of International and Hybrid Courts 149 national standards of detention units and prisons, which remain a highly neglected area in the rebuilding of criminal systems in post-conflict settings.81 Additionally, hybrid courts may play a vital role in promoting the rights of women in societies where women enjoy a lower social status, through strong policies on prosecuting gender crimes and on gender equality in employment. Finally, hybrid courts can promote the principles of non-discrimination and equal employment by leading by example and hiring persons with disabilities.82 While this list is not exhaustive, it exemplifies certain key areas where one may expect a hybrid court to have a positive impact on the respect for human rights in the local community.

3.4 Case Study: Impact of SCSL The experience of the SCSL provides instructive guidance to the international justice community and future courts, both in terms of legacy and impact. The SCSL built on the efforts of previous international tribunals to form a new hybrid model of international criminal justice, which provided great potential for future trials. With the Court rested the hope that the flaws of past international tribunals could be corrected, thus advancing the state of international criminal justice while strengthening Sierra Leone’s domestic legal system and encouraging Sierra Leoneans to have faith in their justice system. In addition to its important judicial record and the measure of justice it brought for victims and affected communities, a number of commentators have argued the Court has had a broad impact on Sierra Leone as a post- conflict society.83 While legacy goals were not expressly stated in the SCSL’s mandate, the hopes of leaving an enduring and lasting legacy were high among Sierra Leoneans. The Court, above all, helped to establish an authoritative record of the nature of the crimes that took place during the civil war – who was responsible for them, what groups were targeted, and why. The Court’s outreach program raised awareness about the trials and ongoing investigations. From the early days of the Court’s operations, there was a sense of priority for court officials to raise awareness, explain, and get support for their work. The outreach program was expected not only to educate the public

81 Id. 82 Id. at 17. 83 See generally Special Court for Sierra Leone [SCSL] and No Peace Without Justice [NPWJ], Making Justice Count Assessing the Impact and Legacy of the Special Court for Sierra Leone in Sierra Leone and Liberia (2012), available at http://www.npwj.org/content/Making- Justice-Count-Assessing-impact-and-legacy-Special-Court-Sierra-Leone-Sierra-Leone- and [hereinafter NPWJ Study]. 150 Tolbert and Smith about the existence and operation of the Court, but also to explain efforts to rebuild the national judiciary and promote the value of building the rule of law, the absence of which was an underlying cause of the war. The Court also engaged local communities and civil society groups in a constructive debate about the work and activities of the Court. The SCSL’s innovative outreach program, through its focus on improving domestic understanding of the Court’s activities, served as a model for future tribunals. During its lifespan, the Court undertook several capacity-building projects through its professional development program, helping to train and build the expertise of dozens of Sierra Leonean investigators, lawyers, and judges. Other programs included a juvenile justice training program and an archival management training program. Trainings were also conducted to improve detention standards. Among its accomplishments, the Court initiated steps to create the first national witness protection unit in Sierra Leone, one of only a few witness protection systems in Africa. The impact of the Special Court extends beyond the borders of Sierra Leone. Its judgments have reaffirmed important international legal norms, such as the prohibition on the conscription of child soldiers, the condemnation of the crime of forced marriage, and the denial of immunity to sitting heads of state.84 While empirical studies remain few, there are a few key studies that provide valuable insight into the impact of internationalized courts on local communities. One such study of the SCSL, conducted by No Peace Without Justice, an international non-profit organization, with the aim of establishing the impact of the SCSL on Sierra Leone and Liberia through its judicial proceedings, legacy work and outreach program, found that the overall feeling towards the Court and its work was positive.85 According to the survey findings, the majority of respondents in both Sierra Leone and Liberia felt the SCSL was successful in fulfilling its core mandate of carrying out prosecutions and bringing those who bore the greatest responsibility for committing crimes to justice. Court sentences were generally considered to be fair.86 However, there was a resound- ing feeling that not all those who committed crimes were brought to justice.87

84 The preceding paragraphs in this section were drawn primarily from earlier statements by David Tolbert, ICTJ: SCSL Holds Valuable Lessons for International Justice, available at http://scsl-legacy.ictj.org/ictj-scsl-holds-valuable-lessons-international-justice. 85 NPWJ Study, supra note 83. The survey was administered to 2,841 people across Sierra Leone and Liberia, of varying demographics, over the course of two-month period in 2012. 86 Id. at 29. 87 Id. The Legacy of International and Hybrid Courts 151

The survey results further showed a majority of people in Sierra Leone, and in Liberia to a lesser extent due to the court’s location in Freetown, Sierra Leone, felt positively about the SCSL’s contribution towards stability, peace and the development of the rule of law in their countries.88 When asked about whether the SCSL has contributed towards containing the culture of impunity, a slight majority indicated that the SCSL had succeeded in this respect and that it did so mainly through prosecutions. A greater majority accredited the SCSL with making a positive contribution to peace, which Sierra Leoneans attributed to the physical presence of the SCSL in their country. Notably, however, there was a recurring negative feeling among Liberian respondents about the impact of the SCSL on the development of law and judicial mechanisms in Liberia, which they frequently cited was due to the Court not being located in their home country.89 On the specific question of whether the SCSL has contributed to greater respect for human rights and the rule of law over 80 percent responded affir- matively, with attribution mainly to the Court’s achievements in bringing perpetrators to justice.90 The impact of the Court’s deterrence effect, setting of benchmarks and outreach work, on contributing to respect for human rights was cited to a much lesser extent.91 The survey also showed that the Court was recognized in Sierra Leone and Liberia for playing a critical role in keeping the public informed and engaged in the work of the SCSL.92 Awareness of the Court and its work was high in both countries, especially in Sierra Leone, which illustrates the importance of prioritizing outreach from the outset and including it in the mandates of international courts and tribunals.93 Though general impressions of the Court may be positive, the Court has been met by a number of significant criticisms as well. Sierra Leoneans and the international community held the SCSL to a high standard with wide- ranging expectations on the role it was to play in influencing positive reform of the national legal system.94 Some Sierra Leoneans have criticized the great expense of the trials and argued that the funds expended on the Court would

88 Id. 89 Id. 90 Id. at 30. 91 See id. 92 Id. at 14. 93 Id. 94 Nmehielle & Jalloh, supra note 43 at at 109. 152 Tolbert and Smith have been better used in assisting efforts to rebuild the shattered lives of the victims, instead of focusing on the punishment of the perpetrators of the war.95 Such criticisms raise the valid point of examining the Court’s overall expense in relation to the impact it has had on the local community. If accountability and reconciliation are in fact an overall goal of international or hybrid courts, then contributions to legacy and on-the-ground impact should not be left as afterthoughts. In the wake of the SCSL’s closure in 2013, only time will tell whether the legacy of the Court will be able to be measured in terms of lasting impact on the Sierra Leonean and Liberian communities.

4 Conclusion

4.1 Final Thoughts Future international courts can learn from the experiences of the ad hoc tribunals and hybrid courts to determine the best way to plan for a legacy that continues to contribute towards greater respect for human rights and the rule of law. In reflecting on the ad hoc tribunals and hybrid courts, future courts should evaluate how the judgments they hand down impact local communities. Will these judgments lead to greater respect of human rights, by state actors and the general populace alike? Do they promote adherence to the principles of international criminal, humanitarian and human rights law? How will the court contribute to the processes of re-establishing civic trust, the rule of law, or democratic order between the local community and the state? What role will the court play in establishing or strengthening such key judicial mechanisms as court management systems, witness protections systems, investigative capacities, and judicial capacities including concepts such as judicial independence? These considerations are essential to any international court seeking to maximize its impact, and thus its legacy.

4.2 Concluding Remarks In closing, it appears obvious that there were good reasons for international tribunals and courts to be concerned about their respective legacies following their closures. In view of the great effort and expense that went toward their creation and operation, legacy clearly provided a means to both justify that expense and, more importantly, show the value of their work. Indeed, given the missions of these courts and their great cost, one can argue a moral

95 Id. The Legacy of International and Hybrid Courts 153

obligation arises on the courts and the relevant officials to ensure the legacy of these courts. It is clear from the above discussion that the efforts towards taking steps to ensure that the courts established legacy are of great value. To be sure, the work of the ICTY with national prosecutors and courts continues and has led to a number of trials on important incidents not covered by the ICTY. The historical record set by the ICTY and ICTR established an important bulwark against revisionism that has already raised its head in both Rwanda and the former Yugoslavia. In Sierra Leone, the work of that court’s outreach program has resonated far and wide. There appears to have been progress in the society toward greater respect for the rule of law and greater understanding of the causes of the conflict. On other fronts, the legacies of these courts are much more contested. There is a continuing debate about the costs of the courts, their slow processes and the lack of connections between the courts and the countries they worked in. In that sense, this part of the legacy of the tribunals and courts is not a success. They did not adequately conceive of the uncharted role they would play and the impact that their decisions would have on affected populations. By limiting their interventions and not establishing a more comprehensive strategy of legacy, there were many missed opportunities for these tribunals to lead a deeper impact – and thus establish a greater legacy – than they might have. Nonetheless, these shortcomings must be seen in the context of the difficult circumstances that they were established. Thus, their records on long-term impact are mixed, and the question of whether respect for human rights has improved in the countries in question is also mixed. However, what has been learned through the experiences of these courts is that they began to understand the importance of legacy, that they took steps to ensure that they left a legacy and, to the extent that they did so, the people of these countries benefited. Thus, their successors have models to build on for the future, which at the end of the day is a kind of legacy in and of itself.

Part 4

Substance and Process in International Criminal Justice

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chapter 12 An Unbreakable Thread? The Presumption of Innocence in International Law

Karim A. A. Khan QC and Dato’ Shyamala Alagendra*

Hassan Jallow is one of those rare breed of lawyer who defies compartmentali- sation. Prosecutor of the International Criminal Tribunal for Rwanda (ICTR) since 2003 and the first Prosecutor of the International Residual Mechanism for both the ICTY and ICTR (MICT), he has also been a Judge of the Appeals Chamber of the Special Court for Sierra Leone (SCSL), as well as a Supreme Court Justice as well as Attorney-General and Minister of Justice of The Gambia. He sees no conflict between the rights of victims for redress and for the rule of law to be enhanced, with the imperative that the rights of all individuals (including accused persons) be safeguarded and protected. It is noteworthy that Hassan Jallow played an important role in the drafting of the African Charter on Human and Peoples’ Rights, which represents an important milestone in its own right. In his speech marking the occasion of the swearing-in of another eminent Gambian, H. E. Fatou Bensouda to the position of Deputy Prosecutor of the International Criminal Court (ICC), he stated that:

The ad hoc Tribunals have made a great contribution in filling the jurisprudential vacuum, in developing and enriching the jurisprudence of international criminal law, without which no system of international criminal justice can function effectively. The rules of international criminal procedure, international rules of evidence and the international standards of fair trial have been considerably elaborated and enhanced by the work of the tribunals. . . . The international prosecution of crime is ‘do-able’. It is not, of course, a perfect system. We must remember that no national legal system can claim to be so. However, we must in the international context strive for greater efficiency and enhancing expeditious delivery of justice in conformity with the international standards of due process and fair trial.1

* The authors wish to record their thanks to research and assistance provided by Anand Shah Esq., Defence Legal Assistant ICC, in the preparation of the chapter. 1 Statement by Justice Hassan B. Jallow, Prosecutor of the ICTR on the Occasion of the Swearing in of Fatou Bensouda, Deputy Prosecutor of the ICC, 1 November 2004.

One of the foundations of due process and a fair trial is, without doubt, the presumption of innocence. That all suspects or accused persons are presumed innocent unless proven guilty beyond reasonable doubt is one of the few legal concepts widely known beyond the confines of the law. Indeed, it represents a value that has taken root and developed over centuries along with other key human rights. It is therefore appropriate to include a discussion of the presumption of innocence in this work marking the contribution to the law of this greatly respected jurist.

1 Introduction

Today, the presumption of innocence is an ‘undisputed general principle of law’2 and the ‘golden thread’3 of criminal law recognized in ‘every known human rights document’4 as a fundamental component of fair criminal proceedings.5 Indeed, the right to be presumed innocent has been described as a norm of customary international law from which no derogation is permitted, even in times of war or other emergency.6 This has not always been the case. It is well known that after the end of the Second World War there was a sizeable body of thought that considered that the best way of proceeding would be to summarily execute the leading members of the Nazi Party. Winston Churchill, that redoubtable war-time leader of the United Kingdom, was certainly of

2 W. A. Schabas, ‘Article 66: Presumption of Innocence’, in O. Triffterer (ed.), Commentary of the Rome Statute of the International Criminal Court (Munich: Verlag, 2008) 1233, at 1233 (citations omitted). 3 Woolmington v. Director of Public Prosecutions [1935] AC 462 at 481. 4 A. Ashworth, ‘Four threats to the presumption of innocence’, 10 International Journal of Evidence & Proof (2006) 241, at 243. See in particular the following international and regional instruments: Universal Declaration of Human Rights (10 December 1948), Article 11(1); International Covenant on Civil and Political Rights (16 December 1966), Article 14(2); Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950), Article 6(2); American Convention on Human Rights (22 November 1969), Article 8(2); African Charter on Human and People’s Rights (27 June 1981), Article 7(1)(b). 5 The principle of the presumption of innocence finds form in numerous legal systems. For example, in the leading Malaysian case, Yau Heng Fang v. PP [1985] 2 MLJ 335, the Chief Justice giving the judgement of the Supreme Court held that: ‘In all criminal trials the accused is deemed to be innocent until proven guilty by the prosecution. There is no burden placed on the accused to prove his innocence.’ (Counsel for Appellant, Puan Sri (then Datin) Saraswathy Devi, Counsel for the Respondent, DPP). 6 HRC, General Comment 24, para. 8; General Comment 29, para. 11; General Comment 32, para. 6; ICRC Study on Customary International Law, Vol. 1, Rule 100, pp. 357–358. An unbreakable thread 159 this opinion at the outset. He was not alone. The Former Chief Prosecutor of Nuremberg, Robert H. Jackson, recounted an editorial, in a leading periodical, at the time the establishment of an International Military Tribunal was being discussed. It stated, “[i]n our opinion the proper procedure for this body would have been to identify the prisoners, read off their names with as much supporting data as seemed useful, pass judgement upon them quickly, and carry out the judgement without any delay whatsoever.”7 The views of one professor of political science at the time were markedly similar: “What, in my opinion, they should have done is set up summary courts martial. Then they should have placed these criminals on trial before them within twenty-four hours after they were caught, sentenced them to death, and hanged them in the morning”.8 The Soviet Union, having suffered almost unimaginable losses at the hands of the Third Reich, also considered the issue settled. As the Soviet delegate, General T. Nikitchenko put it:

We are dealing here with the chief war criminals who have already been convicted and whose conviction has already been announced by both the Moscow and Crimea declarations by the heads of the governments. . . . The fact that the Nazi leaders are criminals has already been established. The task of the Tribunal is only to determine the measure of guilt of each particular person and mete out the necessary punishment – and sentence.9

Telford Taylor, in his excellent piece “The Nuremberg Trials”, observes that Jackson responded that, in the view of the United States, the Moscow and Yalta declarations amounted to accusations, rather than convictions. Jackson was adamant that the United States could not be party “to setting up a mere formal judicial body to ratify a political decision to convict”. The United States had resolutely set its face against ‘political executions’ and ‘if we are going to have a trial, then it must be an actual trial’. 10 The various options open to the allies were considered in advance of the establishment of the International Military Tribunal. All such options encompassing summary execution or proceedings that would have been tantamount

7 Nuremberg in Retrospect: Legal Answer to International Lawlessness, 35 American Bar Association Journal, 813 (1949). 8 Ibid. 9 Int’l Conference 72 at 105–105, 303. 10 Telford Taylor, The Nuremberg Trials, 55(4) Columbia Law Review, 448 (April 1955). 160 Khan and Alagendra to sham trials were ultimately rejected. As Jackson, with his customary ele- gance and insight stated:

To free them without trial would be to mock the dead and make cynics of the living. . . . But, undiscriminating executions or punishments without definite findings of guilt, fairly arrived at, would violate pledges repeatedly given, and would not sit easily on the American conscience or be remembered by our children with pride. The only other course is to determine the innocence or guilt of the accused after a hearing as dis- passionate as the times and horrors we deal with will permit, and upon a record that will leave our reasons and motives clear.11

Notwithstanding Jackson’s clarity of view,12 many remained unconvinced. Even as the Nuremberg proceedings were ongoing, various detractors continued raising their concerns. The American jurist Judge Charles E. Wyzanski wrote that: “No one anticipates that the defence . . . will be given as long a time to present its evidence as the prosecution takes”, adding that there would be no presumption of innocence as “[t]he basic approach is that these men should not have a chance to go free”. To avoid the charade he feared, Judge Wyzanski opined that it would be far better to have an “executive determination” which by its “naked and unassumed character . . . confesses itself to be not legal justice but political”. Whereas Nuremberg, by purporting to be a trial, presented a “deceptive appearance, big with evil consequences for law everywhere. . .”.13 The London Agreement and Charter of August 8, 1945, and the presumption of innocence guaranteed thereby, bore the indelible stamp of Justice Jackson’s resolute advocacy for real, meaningful trials that were intended to stand the test of time. That the Soviet Judge, Nikitchenko, subsequently dissented from

11 Int’l Conference 46. 12 Even before his appointment as chief prosecutor, Jackson was resolute that the trial of any Nazis apprehended must be fair: “The world yields no respect for courts that are organized to convict.” He said, “You don’t put man on trial unless you are willing to set him free if he is not proven guilty beyond a reasonable doubt “Reflections of the Nuremberg Trial” speech by Norbert Ehrenfreund, Judge (retd) of the Superior Court of California, 13 June 2005, see http://www.roberthjackson.org/the-man/speeches-articles/speeches/ speeches-related-to-robert-h-jackson/reflections-on-nuremberg-trial/. 13 See Wyzanski, Nuremberg – a Fair Trial? Dangerous Precedent, Atlantic Monthly, April 1946, p. 66. This is cited in Telford Taylor, The Nuremberg Trials, 55(4) Columbia Law Review, 448 (April 1955). Also see http://www.theatlantic.com/magazine/archive/1946/04/ nuremberg-a-fair-trial-a-dangerous-precedent/306492/. An unbreakable thread 161 every acquittal entered does not dilute the principle that had thereby been established. Trials were to be real and meaningful, rather than mere theatre with pre-determined results. Three individuals did in fact go free after acquittals were entered. This led some erstwhile detractors, like Judge Wyzanski, to reappraise their earlier views in favour of summary execution by executive fiat, and the disparagement of the Nuremberg trial process. Judge Wyzanski explained this change of position clearly:

Before the Nuremberg trial began, those who, like myself, originally opposed a judicial proceeding stressed the following points, among others. There was a grave danger that the trial itself could not be conducted in an orderly way. . . . There seemed no likelihood that the trial would be so arranged that the defendants would be given adequate opportunity to produce evidence and to examine and cross-examine witnesses. There was scepticism as to whether any defendant had a chance to be acquitted, particularly since it appeared that the tribunal might start with a presumption of guilt rather than a presumption of innocence. And it was feared that the tribunal would focus on the propaganda aspects of the trial and would be unduly concerned with the effect of the trial upon the public opinion of the outside world. Cumulatively, these considerations made many commentators doubtful whether the court could act as a court should act. And – though this was less important – it made commentators fear that the trial instead of persuading the Germans of today or tomorrow that our side was just, would persuade them that we were hyp- ocrites disguising vengeance under the facade of legality. To avoid such dangers, these critics suggested that victorious powers should frankly state that for reasons which would be announced to the world, and which would include a recital of the wrongs the defendants had perpetrated and the menace they still presented, the powers proposed to deny them further liberty and, if necessary, to take their lives. Before such announcement was put into effect, the persons named for punishment would have an adequate opportunity to present any evidence demonstrating that they had been erroneously named or charged with wrongdoing. It was believed that a course so drastic and so plainly premised on an exceptional situation would never be thought, as a trial might be thought, suitable for incorporation in the permanent fabric of domestic systems of justice. Now that the trial has been held, many of these forebodings are shown to have been wide of the mark. Judged as a court trial, the Nuremberg proceedings were a model of forensic fairness. Lord Justice Lawrence 162 Khan and Alagendra

and his associates acted with dignity and firmness and with eyes directed only to such matters as judges ought to consider. . . . But the outstanding accomplishment of the trial which could never have been achieved by any more summary executive action, is that it has crystallized the concept that there already is inherent in the international community a machinery both for the expression of international criminal law and for its enforcement. The great powers of the world have agreed that it is in accordance with justice for a group of nations to establish on an ad hoc basis a tribunal, first, to review the state of world opinion on conduct, in order to determine whether that conduct, when it occurred, was so universally condemned as an international wrong that it can be called a “crime”; and second, to apply that determination to individuals. No doubt such an ad hoc method is not satisfactory as a covenant made by all the powers in advance of wrongful conduct – a covenant describing such conduct, fixing the tribunal which shall try offenders and fixing the penalty which shall be imposed. But until the world is prepared to follow the more satisfactory method, it has every reason to be profoundly grateful to Mr. Justice Jackson and his associates, who, in the face of enormous practical difficulties and widespread theoretical criticisms, persisted until they demonstrated the justice of the ad hoc method adopted at Nuremberg. 14

The interests protected by the presumption of innocence are, certainly, sometimes difficult to achieve in practice. It is especially difficult in the field of international crimes, when the targets are, for the most part, those viewed as being “the most responsible”. The nettle of this reality must be grasped if the concept of this right is not to be relegated to a mere incantation, devoid of substance or meaning. In a world of 24-hour news coverage, with the prevalence of social media and the internet, many individuals are – rightly or wrongly – cast as monsters and as “guilty in the court of public opinion” well before an indictment is drafted, never mind a trial commenced. This is, perhaps, inevitable. What is certain, however, is that discipline, detachment and vigilance by all who are engaged in such a trial process is necessary to ensure there is a fair trial that will dispense justice in a manner that withstands the test of time. As Jackson stated in his landmark opening speech at Nuremberg:

14 Wyzanski, Nuremberg in retrospect, Atlantic Monthly, Dec. 1946, p. 56. Available online at http://www.theatlantic.com/magazine/archive/1946/12/nuremberg-in-retrospect/306493/3/ (emphasis added). An unbreakable thread 163

The former high station of these defendants, the notoriety of their acts, and the adaptability of their conduct to provoke retaliation make it hard to distinguish between the demand for a just and measured retribution, and the unthinking cry for vengeance which arises from the anguish of war. It is our task, as far as humanely possible, to draw the line between the two. We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.15

In this context, it is therefore not surprising that the ad hoc international and hybrid tribunals, such as the ICTR, as well as the permanent International Criminal Court (ICC), recognize the presumption of innocence as a central tenet in their adjudication of criminal justice. As noted by Judge Wolfgang Schomburg,16 with respect to the International Criminal Tribunal for the Former Yugoslavia (ICTY), ‘[t]he importance of this principle [the presumption of innocence] cannot be emphasized enough in a Tribunal which has to face the criticism of being a political court set up by victorious NATO Member States.’17 Given that international and hybrid tribunals are either wholly or in part established, funded and managed (at least indirectly through appointment of key personnel) by international actors (states and international organizations), and given the largely identity-based crimes investigated, the ICTR, SCSL, Special Panel for Serious Crimes (SPSC), Special Tribunal for Lebanon (STL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) are likewise subject to criticisms of political prosecution and ‘victor’s justice’.18 Even the ICC, with 123 states19 voluntarily acceding to its jurisdiction, has been

15 International Military Tribunal, Trial of the Major War Criminals, 98–99 (1947) at 101. 16 Former judge on the ICTY and ICTR Appeals Chambers. 17 W. Schomburg and T. Wild, ‘The Defence Rights in the Practice of the International Criminal Tribunals’, 5:4 ERA-Forum (2004) 533, at 539. 18 C. Aptel, ‘International and Hybrid Criminal Jurisdictions: Stigmatizing or Reconciling?’, (International Center for Transitional Justice) available online at https://www.ictj.org/ publication/international-and-hybrid-criminal-jurisdictions-stigmatizing-or-reconciling (noting that the identity based crimes that international and hybrid tribunals primarily address require the tribunal, and the prosecutor in particular, to make choices that ‘may be perceived publicly as politically motivated and biased’ by particular groups). 19 ‘The States Parties to the Rome Statute’, (International Criminal Court) available online at http://www.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties %20to%20the%20rome%20statute.aspx. 164 Khan and Alagendra accused by certain African governments and officials of unfairly ‘targeting’ African states.20 Accordingly, at the international and hybrid courts and tribunals, adherence to the principle of the presumption of innocence is necessary not only to preserve the fairness of individual criminal proceedings, but also as a bulwark against claims that these institutions are devoid of legitimacy. While the status of the presumption of innocence as a core principle in the conduct of criminal proceedings is in little dispute at both the national and international levels, ‘[i]t’s scope and meaning are . . . eminently contestable’.21 Scholars divide the presumption of innocence principle into narrow and broad precepts.22 The narrow presumption is the more widely known (and primarily common law) principle – namely that the prosecution has the burden of proving an accused’s guilt at trial to the applicable standard of proof.23 The broad presumption entails conducting criminal proceedings in a manner compatible with an accused’s innocence, and is manifested through rights such as provisional release and the right to remain silent.24 Part 2 of this paper examines the narrow presumption of innocence, briefly addressing its contours in the common and civil law traditions before analyzing how the narrow presumption is interpreted and implemented at the international and hybrid courts and tribunals. Part 3 seeks to identify the specific rights that encompass the broad presumption, and then evaluates the manner in which the broad presumption is respected at the international and hybrid courts and tribunals.

20 See e.g., ‘AU criticizes ICC ruling on Bashir genocide charges’, Sudan Tribune (4 February 2010), available online at http://www.sudantribune.com/spip.php?article34022. The ICC Prosecutor is currently investigating and/or conducting prosecutions in nine situations: Democratic Republic of the Congo, Central African Republic (two independent situations), Uganda, Darfur (Sudan), Republic of Kenya, Libyan Arab Jamahiriya, Ivory Coast, and Mali. For careful scholarly assessments of these concerns, see Charles Jalloh, Regionalizing International Criminal Law?, 9 International Criminal Law Review (2009) 445 and Charles Jalloh, Dapo Akande and Max du Plessis, Assessing the African Union Concern about Article 16 of the Rome Statute of the International Criminal Court, 4 African Journal of Legal Studies (2011) 5. 21 Ashworth, supra note 6, at 243. 22 See e.g., Ashworth, supra note 6, at 243–44; A. Stumer, The Presumption of Innocence: Evidential and Human Rights Perspectives (1st edition, Oxford: Hart Publishing, 2010), at xxxviii. 23 Stumer notes that this aspect of the presumption of innocence ‘is sometimes treated as exhaustive of its content’. A. Stumer, The Presumption of Innocence: Evidential and Human Rights Perspectives (1st edition, Oxford: Hart Publishing, 2010), at xxxviii. 24 Ibid. An unbreakable thread 165

2 The Narrow Presumption at the International and Hybrid Tribunals and Courts

Viscount Sankey’s formulation, in Woolmington v. Director of Public Prosecu- tions, is perhaps the most regularly cited precedent for the fundamental nature of the narrow presumption of innocence in criminal proceedings. As Lord Chancellor of England & Wales he explained that:

Throughout the web of the English Criminal Law one golden thread is always seen, that it is the duty of the Prosecution to prove the prisoner’s guilt . . . subject to . . . the defence of insanity and subject also to any statutory exception. If, at the end and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, . . . the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.25

While the standard of proof required for a criminal conviction was well established in the common law before Woolmington, ‘the precise allocation of the burden of proof remained unclear’.26 Other common law jurisdictions, including the United States, Canada, South Africa and Australia, adhere to the narrow presumption of innocence principle that it is the prosecution’s burden to prove beyond a reasonable doubt the guilt of an accused in criminal proceedings.27 However, as noted by former United States Supreme Court Justice Sandra Day O’Connor: ‘Although this standard is an ancient and honored aspect of our criminal justice system, it defies easy application.’28 What can be said with certainty is that the standard of proof for

25 [1935] AC 462 at 481–82 (emphasis added). 26 P. J. Schwikkard, Presumption of Innocence (1st edition, South Africa: Juta & Co., 1999), at 4. 27 Ibid. 28 C. Rowan, ‘Reasonable Doubt Standard of Proof in International Criminal Trials’, in K. Khan, C. Buisman and C. Gosnell (eds), Principles of Evidence in International Criminal Justice (Oxford: Oxford University Press, 2010) 650, at 651, quoting Victor v. Nebraska, 511 U. S. 1 (1994), at 5. 166 Khan and Alagendra the narrow presumption of innocence is the highest one applicable under the common law,29 and that it is wholly the prosecution’s burden to meet it. Separate and cumulative elements comprise the prosecution’s burden of proof under the common law: a persuasive burden and an evidential one.30 The former refers to the prosecution’s duty to put forward a case that, in toto, convinces the finder of fact that the requisite standard of proof has been met for each critical fact; the latter refers to a minimum quantity of evidence that the prosecutor must submit to the court in order to sustain a finding of guilt.31 Similar to its status in common law jurisdictions, the narrow presumption of innocence has a prominent pedigree in the civil law tradition – Article 9 of the French Declaration of the Rights of Man (1789) states that ‘all persons are held innocent until they shall have been declared guilty’.32 However, the standard of proof for criminal convictions in civil law jurisdictions entails a more subjective approach in comparison with the common law, and the burden of proof is not wholly upon the prosecutor. Under the ‘intime conviction’ standard of proof applicable in jurisdictions such as France and Belgium, judges ‘[e]valuate the available evidence in complete freedom and render their verdict in accordance with their own conscience’.33 Hence, the intime conviction standard of proof is not based on an evaluation of probabilities,34 as are common law standards of proof, but rather the personal beliefs of the finder of fact as to an accused’s guilt after reviewing the evidence. Article 353 of the French Code of Criminal Procedure is often cited as the ‘classic’35 distillation of this standard:

The law does not ask the judges to account for the means by which they convinced themselves; it does not charge them with any rule from which they shall specifically derive the fullness and adequacy of evidence. It

29 Ibid., at 655 (commenting that international jurisprudence sets the proof beyond a reasonable doubt standard higher than ‘clear and convincing evidence’). 30 Stumer, supra note 25, at 9–19. 31 P. Murphy, Murphy on Evidence (Oxford: Oxford University Press, 2008), at 72–73. 32 English translation available online at http://avalon.law.yale.edu/18th_century/rightsof .asp. 33 C. Buisman, M. Bouazdi and M. Costi, ‘Principles of Civil Law’, in K. Khan, C. Buisman and C. Gosnell (eds), Principles of Evidence in International Criminal Justice (Oxford: Oxford University Press, 2010) 7, at 36. 34 C. Engel, ‘Preponderance of the Evidence versus Intime Conviction: A Behavioral Perspective on a Conflict between American and Continental European Law’, 33 Vermont Law Review (2009) 435, at 440. 35 Ibid. An unbreakable thread 167

requires them to question themselves in silence and reflection and to seek in the sincerity of their conscience what impression has been made on their reason by the evidence brought against the accused and the arguments of his defence. The law asks them but this single question, which encloses the full scope of their duties: are you inwardly convinced?36

With respect to the burden of proof, no distinction between a persuasive and evidential burden exists in the civil law tradition, and the prosecution bears no explicit duty of proving the essential elements of an accused’s guilt.37 Instead, with its truth-seeking objective, the civil law tradition divides responsibility for the investigation and building of the case ‘dossier’ between the prosecution and the judges. Any alleged failings in the evidence or in the theory and arguments of the prosecution need not be an absolute bar to conviction. A civil law judge’s authority (perhaps duty) to order the collection of evidence, ask questions of witnesses and the parties, and subjectively evaluate the information before him or her38 may provide a sufficient basis to render a finding of guilt even if the prosecutor’s actions appear lacking in certain material respects. In other words, the judge is not a passive bystander and may call for evidence – even if not obtained or led by the prosecutor – if that judge considers such evidence necessary in order to arrive at an informed decision. If not a ‘golden thread’, at least a common strand runs between the civil and common law traditions with respect to the narrow presumption of innocence. Both legal traditions accept that it is a fundamental principle that until a person is convicted of an alleged crime in accordance with the law, he or she shall be considered innocent. Further, the accused shall not bear the burden of proving his or her innocence. It is out of these two systems – one adversarial and one inquisitorial – that the international and hybrid courts and tribunals have developed their own concept of the narrow presumption of innocence in criminal proceedings.

2.1 The Narrow Presumption of Innocence in International Criminal Proceedings The narrow presumption of innocence was first recognized as a fundamental precept in modern international criminal proceedings at the International Military Tribunal for Germany (IMT). As noted in United States v. Flick, a war

36 English translation available online at http://www.legislationline.org/download/action/ download/id/1674/file/848f4569851e2ea7eabfb2ffcd70.htm/preview. 37 Buisman, Bouazdi and Costi, supra note 3, at 38–39. 38 Ibid., at 40. 168 Khan and Alagendra crimes case before an American military tribunal in Germany held after the close of the IMT:

Some safeguards written in the Constitution and statutes of the United States as to persons charged with crime, among others such as the presumption of innocence, the rule that conviction is dependent upon proof of the crime charged beyond a reasonable doubt, and the right of the accused to be advised and defended by counsel, are recognized as binding on [this] Tribunal as they were recognized by the International Military Tribunal.39

The Flick judgment then went on to list specific principles that were applicable at the IMT, inter alia: ‘guilt must be proved beyond a reasonable doubt’; ‘[t]he presumption of innocence follows each defendant throughout the trial’; and ‘[t]he burden of proof is at all times upon the Prosecution’.40 As will be evidenced below, the international and hybrid criminal courts and tribunals have adopted the common law conception of the narrow presumption of innocence applied at the IMT, though the civil law tradition also exerts its influence in certain respects.

2.1.1 ICTY and ICTR Article 21(3)(a) ICTY Statute provides that an ‘accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.’ The Trial and Appeals chambers of the ICTY have upheld this general provision on several occasions.41 As to the manner in which an accused may be found guilty, Rule 87(A) of the ICTY RPE specifies that a verdict of guilt is lawful only where the ‘majority of the Trial Chamber is satisfied that guilt has been proven beyond a reasonable doubt’. In considering the ‘beyond a reasonable doubt’ standard, the Delalić Trial Chamber held that ‘[i]t need not reach certainty

39 R. May and M. Wierda, ‘Trends in International Criminal Evidence: Nuremburg, Tokyo, The Hague, Arusha’, 37 Columbia Journal of Transnational Law (1998–99) 725, at 753, quoting United States v. Flick, 6 Trials of War Criminals before the Nuremburg Military Tribunals under Control Council Law No. 10 (1946–1949) (NMT) (1949), at 1188 (emphasis added). 40 Ibid., at 754, quoting United States v. Flick, 6 NMT, at 1189. 41 See, e.g., Judgment, Kordić and Čerkez (IT-95-14/2-A), Appeals Chamber, 17 December 2004, § 834 (‘[T]he accused enjoys the benefit of the presumption of innocence.’); Judgement, Halilović (IT-01-48-T), Trial Chamber I, 16 November 2005, § 12 (‘Article 21(3) of the Statute provides that the Accused shall be presumed innocent until proven guilty.’); Judgment, Strugar (IT-01-42-T), Trial Chamber I, 31 January 2005, § 5 (‘Article 21(3) of the Statute enshrines the presumption of innocence to which each accused is entitled.’). An unbreakable thread 169 but it must carry a high degree of probability’;42 this interpretation has been adhered to in subsequent ICTY rulings examining the content of the standard of proof for a conviction.43 While the narrow presumption’s standard of proof is explicitly articulated in Rule 87 ICTY RPE, the allocation of the burden for proving the standard is not. Nonetheless, the ICTY Appeals and Trial chambers have been unequivocal in holding that the burden is wholly upon the prosecution to convince a chamber that all essential factual averments for a conviction have been proven ‘beyond a reasonable doubt’.44 The language of Article 20(3) ICTR Statute is materially identical to Article 21(3)(a) ICTY Statute. The fundamental nature of the presumption of innocence, as enshrined within Article 20(3), finds form throughout the jurisprudence of the ICTR.45 Rule 87(A) ICTR RPE duplicates the language of Rules 87(A) ICTY RPE. Both the standard of proof (‘beyond a reasonable doubt’) and the prosecution’s sole burden in satisfying it, has been underlined in ICTR Trial and Appeals chamber judgments.46

42 Judgment, Delalić (IT-96-21-T), Trial Chamber II, 16 November 1998, § 599. 43 Rowan, supra note 30, at 655. 44 Judgment, Kordić and Čerkez (IT-95-14/2-A), Appeals Chamber, 17 December 2004, § 834 (‘[T]he standard of proof to be applied from the point of view of a trier of fact is beyond a reasonable doubt, and the burden of proof lies on the Prosecution’); Judgment, Limaj et al. (IT-03-66-T), Trial Chamber II, 30 November 2005, § 10 (‘This presumption [of innocence] places on the Prosecution the burden of establishing the guilt of the Accused, a burden which remains on the Prosecution throughout the entire trial.’); Judgment, Halilović (IT-01-48-T), Trial Chamber I, 16 November 2005, § 12 (‘The Prosecution . . . bears the burden of establishing the guilt of the Accused, and, in accordance with Rule 87(A) of the Rules, the Prosecution must do so beyond reasonable doubt.’) (citations omitted). 45 Judgment, Bikindi (ICTR-01-72-T), Trial Chamber III, 2 December 2008, § 30 (‘Pursuant to Article 20(3) of the Statute, an accused shall be presumed innocent until proven guilty.’); Judgment, Kayishema and Ruzindana (ICTR-95-1-T), Trial Chamber II, 21 May 1999, § 234 (‘[T]he accused is presumed innocent until the Prosecution has proved his guilt under Article 20(3) of the Statute.’). 46 Judgment, Rutaganda (ICTR-96-3-A), Appeals Chamber, 26 May 2003, § 172 (‘[T]he burden of proof lies on the Prosecution, insofar as the Accused enjoys the benefit of the presumption of innocence.’) (citation omitted); Judgment, Rwamakuba (ICTR-98-44C-T), Trial Chamber III, 20 September 2006, § 98 (‘[T]he Accused is presumed innocent and does not have to prove anything. If the evidence adduced by the Defence raises reasonable doubt, the Prosecution has failed to establish the guilt of the Accused.’); Judgment, Muhimana, (ICTR-95-1B-T), Trial Chamber III, 28 April 2005, § 15 (‘[T]he Prosecution alone bears the burden of proving beyond reasonable doubt the allegations made against the Accused.’). 170 Khan and Alagendra

The ad hoc tribunals have emphasised the extent to which the protection of the narrow presumption of innocence operates with respect to the defence of alibi and through application of the principle of in dubio pro reo. Though the language of Rule 67(B)(i)(a) ICTY RPE and Rule 67(A)(ii)(a) of the ICTR RPE47 appear to set out a particular standard that the Defence must satisfy to assert the defence of alibi,48 the Appeals Chambers of the ICTY and ICTR have made clear that this is not the case. There is no reversal of burden to an accused who puts forward the defence. For example, in its Judgment in the Prosecutor v. Delalić, the Appeals Chamber held:

If a defendant raises an alibi, he is merely denying that he was in a position to commit the crime with which he is charged. That is not a defence in its true sense at all. By raising that issue, the defendant does no more than require the Prosecution to eliminate the reasonable possibility that the alibi is true.49

The presumption of innocence resonates through in dubio pro reo principle. This requires that any ambiguity or uncertainty with respect to the evidence before the court must be settled to the benefit of the accused.50 The jurispru-

47 The language of both rules is as follows: ‘[T]he defence shall notify the Prosecutor of its intent to offer: . . . the defence of alibi; in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi . . .’ 48 W. Schomburg, ‘The Role of International Criminal Tribunals in Promoting Respect for Fair Trial Rights’, 8 Northwestern University Journal of International Human Rights (2009) 1, at 8 (explaining that such a view is not supported by the jurisprudence of the ICTY Appeals Chamber). 49 (IT-96-21-A), Appeals Chamber, 20 February 2001, § 581 (emphasis in original); See also Judgment, Nahimana, Barayagwiza and Ngeze (ICTR-99-52-A), Appeals Chamber, 28 November 2007, § 417 (‘The only purpose of an alibi is to cast reasonable doubt on the Prosecutor’s allegations, which must be proven beyond reasonable doubt. In alleging an alibi, the accused merely obliges the Prosecution to demonstrate that there is no reasonable likelihood that the alibi is true. In other words, the Prosecution must establish beyond a reasonable doubt that, “despite the alibi, the facts alleged are nevertheless true.” ’) (citation omitted). 50 Judgment, Halilović (IT-01-48-T), Trial Chamber I, 16 November 2005, § 12 (‘Any ambiguity or doubt [must be] resolved in favour of the Accused in accordance with the principle of in dubio pro reo.’), citing Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, Tadic (IT-94-1-A), Appeals Chamber, 15 October 1998, § 73 (‘[A]ny doubt should be resolved in favour of the Appellant in An unbreakable thread 171 dence of the ICTY and ICTR has made it clear that the ‘burden never shifts to the accused’51 to prove his or her own innocence. As detailed previously, the principle of the narrow presumption of innocence, as interpreted by the chambers of the ICTY and ICTR, follows the common law interpretation of the principle set out in the Woolmington case. The presumption applies throughout trial proceedings, and consists of a standard of proof (‘beyond a reasonable doubt’) that the prosecutor has the burden of proving in every respect. Article 19 of the Statute of the Mechanism for the International Criminal Tribunals (MICT) – the body slated to take over the mandate and functions of the ICTR and ICTY in 2012 and 2013, respectively52 – employs the same language as Article 21(3)(a) ICTY Statute and Article 20(3) ICTR Statute concerning the presumption of innocence. While Article 13 of the MICT Statute empowers the judges of that body to adopt rules of procedure and evidence, it is highly likely that the MICT will approach the principle of the narrow presumption of innocence in the same manner as its predecessor institutions.

2.1.2 SCSL Article 17 of the SCSL Statute mirrors the language of the statutes of the ICTY and ICTR: ‘The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.’ Rule 87(A) of the SCSL RPE likewise follows the language of Rule 87(A) of the ICTY and ICTR RPE: ‘A finding of guilty may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt.’ As with the ICTY and ICTR, neither the Statute nor the RPE of the SCSL explains how the standard of proof is to be discharged; it is therefore necessary to look to the jurisprudence of the SCSL to sketch the contours of the narrow presumption of innocence as employed by that court. The Presiding Judge in the Civil Defence Forces ‘(CDF) trial’ at the SCSL, Judge Benjamin Itoe, pledged the Chamber’s ‘total commitment’ to the doctrine during the opening day of trial:

We . . . would like to reiterate our total commitment to the doctrine of presumption of innocence of all the indictees as enshrined in Article 17(iii)

accordance with the principle in dubio pro reo’); Judgment, Akayesu (ICTR-96-4-T), Trial Chamber I, 2 September 1998, § 319 (‘[T]he general principles of law stipulate that, in criminal matters, the version favourable to the Accused should be selected.’). 51 Rowan, supra note 30, at 662 (emphasis in original). 52 SC Res. 1996 (2010), § 1. 172 Khan and Alagendra

of the Statute until they are proved guilty, according to the provisions of the Statute and of established, accepted and acceptable principles of law. The burden of establishing this guilt, as is universally recognised – and I would like to add, beyond reasonable doubt – lies squarely on the shoul- ders of the Prosecution.53

At the pre-trial stage of the same case, the then Presiding Judge, Judge Bankole Thompson, examined the scope of the presumption of innocence in the context of a request by the Sierra Leone Truth and Reconciliation Commission (TRC), pursuant to a practice direction of the SCSL, to hold a public hearing with Samuel Hinga Norman, an accused who was then in the custody of the SCSL. In rejecting the request of the TRC, the Presiding Judge held, inter alia, that allowing such a hearing would ‘fundamentally’ conflict with, and ‘has grave ramifications for, the cardinal principle of criminal law that a person accused of a crime is presumed innocent until convicted’.54 Presiding Judge Thompson further explained that ‘the presumption of innocence . . . enjoys primacy within the Special Court’s adversarial normative framework for the adjudication of crimes . . .’55 In making such a claim the Presiding Judge explicitly recognised two components of the principle of the presumption of innocence:

Firstly it refers to the treatment of suspects and accused persons before and during the trial that, in the expectation of society, such persons be accorded respect for their innocence and human dignity. Secondly, it refers to the logistics of proof in criminal cases as to which party bears the burden of proof. The general operative principle in domestic and international criminal tribunals alike is that the Prosecution bears the burden of proving the guilt of the accused ‘beyond a reasonable doubt’.

The President of the SCSL, Judge Robertson, did not accept the dichotomy in the presumption of innocence identified by Judge Thompson: ‘The

53 N. H. B. Jorgensen, ‘The Early Jurisprudence of the Special Court for Sierra Leone from the Perspective of the Rights of the Accused’, 5:4 ERA-Forum (December 2004) 545, at 545, quoting Transcript, Norman, Fofana and Kondewa (‘CDF’) (SCSL-04-14-T), Trial Chamber I, 3 June 2004, at 4. 54 Decision on the Request by the Truth and Reconciliation Commission of Sierra Leone to Conduct a Public Heating with Samuel Hinga Norman, Norman (‘CDF’) (SCSL-2003-08-PT), Trial Chamber I, 29 October 2003, § 10. 55 Ibid. An unbreakable thread 173 presumption of innocence, to which the Judge attached much weight, is really a rule which places the burden of proof on the Prosecution at trial; it is not a straitjacket which insulates an indictee, against his wishes, from all forms of questioning prior to his trial.’56 However, the Judge’s decision primarily focused on the risks posed by a publicly televised hearing of the TRC57 to the integrity of the Court’s proceedings and its potential impact on the testimony of witnesses and the rights of other indictees.58 The Judge held that only a written affidavit or confidential meeting between the accused and the TRC would appropriately balance these concerns with the free speech claims of the accused and the TRC.59 As will be examined below, Judge Robertson’s views on the presumption of innocence – namely that it encompasses only the narrow presumption – reflects the approach later taken by the Appeals Chamber of the SCSL.

2.1.3 SPSC The SPSC (or ‘Panel’), created within the District Court of Dili in East Timor by the United Nations Transitional Administration in East Timor (UNTAET) in 2000 – and operating until 2005 – had exclusive jurisdiction over, inter alia, the crimes of genocide, crimes against humanity and war crimes allegedly committed in East Timor in 1999. Section 2.2 of UNTAET/REG/2000/30 on Transitional Rules of Criminal Procedure (‘Transitional Rules’) sets out that ‘[e]very person shall be presumed innocent of a criminal offense until guilt is established by the final decision of a court.’ Section 6.1 of the Transitional Rules – concerning the rights of the accused – reiterates that ‘[a]ll persons accused of a crime shall be presumed innocent until proven guilty in accordance with the law, the provisions of this and other UNTAET regulations.’ Section 34.1 of the Constitution of East Timor (2002) further establishes the fundamental nature of the presumption of innocence in criminal proceedings.60 However, the Transitional Rules and Constitution, which were generally applicable to all courts in East Timor, did not detail the standard and burden

56 Decision on Appeal by the Truth and Reconciliation Commission for Sierra Leone (‘TRC’ or ‘The Commission’) and Chief Samuel Hinga Norman JP against the Decision of his Lordship, Mr Justice Bankole Thompson delivered on 30 October 2003 to deny the TRC’s Request to hold a Public Hearing with Chief Samuel Hinga Norman JP (hereinafter ‘TRC Appeal Decision’), Norman (SCSL-2003-08-PT), Presidency, 28 November 2003, § 10. 57 Jorgensen, supra note 55, at 558. 58 TRC Appeal Decision, § 41. 59 Ibid., §§ 40–41. 60 Section 34.1 ones reads: ‘Anyone charged with an offence is presumed innocent until convicted.’ 174 Khan and Alagendra of proof at trial to be applied at the SPSC; it was left to the judges of the SPSC to address the two fundamental components of the narrow presumption of innocence. In one of the Panel’s early judgments – Joni Marques et al., the judges explained that they had ‘applied to the accused the presumption of innocence stated in Sect. 6.1 of UR-2000/30, which is accepted as a general principle of law, so that the Prosecution bears the onus of establishing the guilt of the accused, and the Prosecution must do so beyond reasonable doubt.’61 Hence, in this judgment, the SPSC made clear that its interpretation of the presumption of innocence would not depart from that of the ICTY and ICTR.62 Later judgments of the SPSC confirmed the holding in Joni Marques et al. with respect to the narrow presumption of innocence.63 In the Jose Cardoso case, the Panel further stated that ‘the burden of proof on the prosecution means that the prosecution is required to prove every element of the offence beyond reasonable doubt and that the accused is required to prove nothing in order to establish his innocence.’64

2.1.4 ECCC and STL The ECCC, established in 2006, and the STL, established in 2007, are the newest of the hybrid and international criminal institutions. Building on the experiences of the ICTY, ICTR, SCSL and the ICC (discussed below), the founding documents and procedural rules of these institutions more directly and fully set out the elements of the narrow presumption of innocence than those of the other ad hoc international and hybrid courts and tribunals. Article 35 of the ECCC’s Law on the Establishment of the Extraordinary Chambers states that an ‘accused shall be presumed innocent as long as the court has not given its definitive judgment’. Rule 21(1)(d) of the ECCC’s Internal

61 Judgment, Joni Marques et al. (9/2000), 11 December 2001, § 671. 62 In a 2005 ruling, the Panel specifically noted the inclusion of the presumption of innocence principle in the statues of the ICTY, ICTR and ICC (Findings and order on defendant Nahak’s competence to stand trial, Josep Nahak (1a/2004), 1 March 2005, § 62). 63 See e.g., Judgment, Jose Cardoso (04/2001), 5 April 2003, § 278–79 (quoting paragraph 671 of the the Joni Marques case and also citing to the Joseph Leki (05-2000), Julio Fernandes (02-2000) and Carlos Carmone (03-2000) cases). 64 Judgment, Jose Cardoso (04/2001), 5 April 2003, § 279–80. However, it should be noted that in a 2002 judgment the SPSC established an exception with respect to the defence of consent in rape cases: ‘. . . the law does not require, at any time, that the victim needs to voice objection, to shout or object. The accused has to establish that the victim consented, and before evidence of the victim’s consent is admitted, the accused shall satisfy the Court that the evidence is relevant and credible . . .’ (Judgment, Francisco Soares (14/2001), 12 September 2002, § 33). An unbreakable thread 175

Orders65 (‘Internal Orders’) clarifies that each suspect or accused ‘shall be presumed innocent as long as his/her guilt has not been established’. Rule 87(1) Internal Orders sets out the remaining elements of the narrow presumption of innocence: ‘The onus is on the Co-Prosecutors to prove the guilt of the accused. In order to convict the accused, the Chamber must be convinced of the guilt of the accused beyond reasonable doubt.’ The STL Statute places all three elements of the presumption of innocence within the same article and subsection,66 entitled ‘Rights of the accused’:

(a) The accused shall be presumed innocent until proved guilty according to the provisions of this Statute; (b) The onus is on the Prosecutor to prove the guilt of the accused; (c) In order to convict the accused, the relevant Chamber must be convinced of the guilt of the accused beyond reasonable doubt.

Rule 148(A) STL RPE further specifies that the Trial Chamber may only convict an accused on a charge alleged when a majority of the Chamber ‘is satisfied that guilt has been proved beyond reasonable doubt.’ In the first judgment issued by the Trial Chamber of the ECCC,67 the Chamber addresses the narrow presumption of innocence as it is to be applied at that court. The Chamber held that the presumption of innocence, as established in Rule 21(d) of the Internal Orders, places the burden of proving an accused’s guilt on the Co-Prosecutors, and that Rule 87(1)(d) additionally sets out that a conviction requires a Chamber to ‘be convinced of the guilt of the accused beyond reasonable doubt.’68 However, given the hybrid nature of the ECCC, the Trial Chamber also noted that under the Cambodian civil law system the standard of proof is a judge’s intime conviction of an accused’s guilt or innocence. While the English and Khmer language versions of Rule 87(1) Internal Orders use the term ‘reasonable doubt’, the equally authoritative French language version uses the phrase ‘intime conviction’.69 Faced with ‘these conceptual differences, the Chamber . . . adopted a common approach that . . . evaluated, in all circumstances, the sufficiency of the evidence. Upon a reasoned assessment of

65 Version of 16 January 2015. 66 Art. 16(3) STLSt. 67 Judgment, 001/18-07-2007/ECCC/TC Kaing (Guek Eav alias Duch), 26 July 2010. 68 Ibid., § 44. 69 Ibid., § 45. 176 Khan and Alagendra evidence, any doubt as to guilt was accordingly interpreted in the Accused’s favour.’70 The Trial Chamber’s ‘common approach’ will be familiar to lawyers well acquainted with the common law system. First, the Chamber will evaluate the ‘sufficiency’ of the evidence presented. As noted previously, the prosecution’s burden of proof in a criminal case in the common law tradition is composed of both an evidential (i.e. ‘sufficiency’) and a persuasive burden, a dichotomy that does not exist under the civil law’s intime conviction tradition. Second, the Trial Chamber held that, after a ‘reasoned’ appraisal of the evidence, ‘any doubt’ regarding the accused’s guilt would be resolved in his favour. Such a result presumably requires the Trial Chamber to find for the element of the crime in question that the prosecution had not met its burden of proof. Accordingly, the Chamber appears to simply be re-stating the ‘beyond a reasonable doubt’ standard. In any event, on appeal of the judgment, the Supreme Court Chamber of the ECCC made clear that “the guilt of an accused at trial must be established beyond reasonable doubt”.71 The STL Prosecutor has stated that the presumption of innocence requires the prosecution to prove beyond a reasonable doubt the guilt of an accused.72 The ECCC and STL accordingly recognize the fundamental nature of the narrow presumption of innocence and view its elements in a manner similar to that of the other ad hoc international and hybrid tribunals.

2.1.5 ICC The Rome Statue of the permanent ICC, in contrast to the statutes of its ad hoc brethren, provides the presumption of innocence its own article – Article 66:

1. Everyone shall be presumed innocent until proven guilty before the Court in accordance with the applicable law. 2. The onus is on the Prosecutor to prove the guilt of the accused. 3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.

70 Ibid. 71 Appeal Judgment, 001/18-07-2007/ECCC/SC Kaing (Guek Eav alias Duch), 3 February 2012, para. 18. 72 STL Press Release, ‘Prosecutor Informs Pre-Trial Judge He Does Not Oppose Release of Four Detainees in the Hariri Case’, 29 April 2009, available online at http://www.stl-tsl .org/en/media/press-releases/prosecutor-informs-pre-trial-judge-he-does-not-oppose- release-of-four-detainees-in-the-hariri-case. An unbreakable thread 177

Unlike the statutory instruments governing most of the other international and hybrid tribunals, which refer to the presumption applying to an ‘accused’,73 Article 66(1) of the Rome Statute refers to ‘everyone’ being presumed innocent until proven guilty. Schabas suggests that the drafting history of Article 66(1) leaves uncertainty as to whether the drafters of the statute intended, by use of the term ‘everyone’, to extend the presumption of innocence to the investigation and, in certain circumstances the appeals stages of a case.74 The fact that the United Nations Preparatory Committee on the Establish- ment of the ICC (‘Preparatory Committee’) changed the phrase ‘an accused’ in the presumption of innocence section of the International Law Commission’s draft ICC statute to ‘everyone’, seems a strong indication that the presumption applies prior to and in certain circumstances beyond the trial stage of a case.75 However, an opposite finding is intimated by the Preparatory Committee’s placement of Article 66 just before the article concerning the rights of the accused and within Part VI of the Rome Statute, which deals with the trial stage;76 the Preparatory Committee had also considered placing the presumption of innocence provision in the part of the Rome Statute addressing general principles.77 Pre-Trial Chamber I of the ICC has ruled in favour of the application of the presumption of innocence to both accused persons and suspects.78 The Chamber held that the use of ‘everyone’ in Article 66(1) extends the presumption of innocence ‘to those with respect to whom a warrant of arrest or a summons to appear has been issued, before their surrender to the Court.’79 The Pre-Trial Chamber therefore recognized that the principle of the presumption of innocence before the ICC is not limited to the standard and burden of proof for conviction at trial – the narrow component of the presumption. With respect to the elements of the narrow presumption of innocence before the ICC, Article 66(2) ICC Statute places the burden of proof on the prosecutor to prove an accused’s guilt. To erase any doubt that this burden cannot be reversed, Article 67(1)(i) ICC Statute establishes that it is an accused’s

73 It should be noted that Sections 2.2 and 6.1 of the Transitional Rules – applicable at the SPSC – speak of the presumption of innocence applying to ‘every person’ and ‘all persons’, respectively. 74 Schabas, supra note 4, at 1236–37. 75 Ibid. 76 Ibid., at 1237. 77 Ibid., at 1234. 78 Decision on the Defence Request for an Order to Preserve the Impartiality of the Proceedings, Mbarushimana (ICC-01/04-01/10-51), Pre-Trial Chamber I, 31 January 2011. 79 Ibid., § 8. 178 Khan and Alagendra right ‘[n]ot to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.’ Subsection 3 of Article 66 Rome Statute sets out the familiar standard of proof required for a conviction at international and hybrid tribunals – ‘beyond a reasonable doubt’, which, pursuant to Article 74(3) ICC Statute, a majority of the trial chamber must be convinced of to find an accused guilty. In its Judgment80 on the prosecutor’s appeal against the Pre-Trial Chamber’s decision not to issue an arrest warrant against Sudanese President Omar Al Bashir for the alleged crime of genocide, the Appeals Chamber held that the Pre-Trial Chamber

requiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt. If the only reasonable conclusion based on the evidence is the existence of genocidal intent, then it cannot be said that such a finding establishes merely ‘reasonable grounds to believe’ [the standard for issuing an arrest warrant or summons to appear]. Rather, it establishes genocidal intent ‘beyond reasonable doubt’.81

The Appeals Chamber defined the ‘beyond a reasonable doubt’ standard through its corollary – that a finding of guilt must be the ‘only reasonable conclusion based on the evidence’. These findings were subsequently followed in the first judgements of the ICC in the Lubanga, Katanga and Ngudjolo judgments.82 The narrow presumption of innocence at the ICC, with respect to

80 Judgment on the appeal of the Prosecutor against the ‘Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’, Al Bashir (ICC-02/05-01/09-73), Pre-Trial Chamber I, 3 February 2010. 81 Ibid., § 33. 82 Judgment pursuant to Article 74 of the Statute, Lubanga (ICC-01/04-01/06-2842), Trial Chamber I, 14 March 2012, para. 92 (“For a conviction, each element of the particular offence charged must be established ‘beyond reasonable doubt’ ”); Jugement rendu en application de l’article 74 du Statut, Katanga (ICC-01/04-01/07-3436), 7 March 2014, para. 68 (“Aux termes de l’article 66 du Statut, l’accusé est présumé innocent jusqu’à ce que le Procureur ait prouvé sa culpabilité. Pour qu’il soit déclaré coupable, il faut que chacun des éléments de l’infraction reprochée ait été établi ‘au-delà de tout doute rai- sonnable’); Judgment pursuant to article 74 of the Statute, Ngudjolo (ICC-01/04-02/12-3- tENG), 18 December 2012, paras. 34–35 (“Under article 66 of the Statute, the accused is presumed to be innocent until the Prosecutor has proven his guilt. For a conviction, each element of the particular offence charged must be established ‘beyond reasonable doubt’. An unbreakable thread 179 both the standard and burden of proof, is thus in line with the understanding of the narrow presumption held by the ad hoc international and hybrid courts and tribunals. Further, as argued above, the narrow presumption as applied at the international and hybrid criminal institutions is largely a creature of the common law system.

2.2 Civil Law Influences on the Narrow Presumption of Innocence As has already been explained, the international and hybrid courts and tribunals seem to have adopted the common law approach to the narrow presumption of innocence – namely, that the prosecution bears the burden of proving beyond a reasonable doubt that an accused is guilty of the crimes alleged. However, as the procedural principles and rules of the international and hybrid criminal institutions are generally a blend of the common and civil law systems, it is to be expected that the civil law system has influenced the application of the narrow presumption of innocence to some degree. While the narrow presumption of innocence within the common law tradition places the burden squarely on the prosecution of convincing a passive finder of fact (whether judge or jury) of an accused’s guilt, the civil law system, with its truth-seeking ethos, views trial judges and sometimes even victims, as active entities in the fact finding process. Accordingly, the civil law system provides judges and victims with varying mandates and rights to, inter alia: order the production of evidence, present evidence, call witnesses not called by the prosecution or defence, and question witnesses. Therefore, in the civil law system, evidentiary lacunae or weaknesses in the prosecution’s case may be enquired into and addressed by the judges and/or victims themselves. Although all of the international and hybrid courts and tribunals place the burden of proof squarely on the prosecution, these institutions also allow trial judges to question witnesses called by the prosecution or defence.83 In addition, the trial chambers of the ICTY, ICTR and STL have the authority to

The Chamber emphasises that the standard of proof ‘beyond reasonable doubt’ must be applied to establish the facts forming the elements of the crime or the mode of liability alleged against the accused, as well as with respect to the facts which are indispensable for entering a conviction.”). 83 Rule 85(B) of the ICTY, ICTR and SCSL RPE provide that ‘a Judge may at any stage put any question to the witness’. SPSC Transitional Rule 36.6 states: ‘Unless otherwise determined by the court, witnesses shall be examined first by the court . . . The Presiding Judge shall allow other judges of the panel to pose additional questions to the witness.’ Rules 90(1) and 91(2) ECCC Internal Orders establish the trial judges’ authority to question the accused or any other witness testifying before the ECCC. Article 20 of the STL Statute, and Rule 145 of the STL RPE set out the power of the trial chamber to ask questions of 180 Khan and Alagendra summon witnesses propio motu and to order the production of additional evidence.84 Further, the ECCC, STL and ICC permit victims to participate in the proceedings to varying degrees,85 with the STL86 and ICC87 providing the possibility, within certain limits, for victims to submit evidence, challenge evidence tendered by the prosecution or defence, and to question witnesses before the court. Accordingly, as criminal proceedings before the international and hybrid courts and tribunals are not purely adversarial in nature, any gaps in the prosecution’s case may be identified and filled by the active intervention of a Trial Chamber and or victims in a bid to establish the ‘truth’. It is only fair to note that the same powers may assist a suspect whose Defence team have failed or been unable to present evidence that the Trial Chamber, or in some circumstances the victims consider to be relevant to the determination of charges and the establishment of the ‘truth’. Experience establishes that certain witnesses who may be prepared to testify if requested by a Trial Chamber would be unwilling (for political and other reasons) to testify on the very same issues, if requested by the defence. Accordingly, the power to summon and question witnesses and call for other evidence is, undeniably, a useful one in the truth seeking arsenal of the Bench.

2.3 The Application of the Narrow Presumption of Innocence in International Criminal Proceedings While the participation of victims and judges in international criminal proceedings – in the manner described above – may be cause for concern to the defence, if overdone or exercised improperly (for example, if the nature, content and manner of questioning amounts to the defence having to face and counter two or more accusers), a more fundamental issue with respect to the narrow presumption of innocence is the application of the ‘beyond a reasonable doubt’ standard by trial chambers. As detailed previously, the statute and or rules of procedure and evidence of the ICTY, ICTR, SPSC, SCSL, ECCC, STL

witnesses before it. Rule 140(2) ICC RPE likewise grants the trial chamber the right to question testifying witnesses. 84 Rule 98 ICTY and ICTR RPE; Article 20(3) STLSt. 85 Rule 23 ECCC Internal Orders, Art. 17 STLSt., and Art. 68(3) ICCSt. 86 Rule 87(B) STL RPE. 87 Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, Lubanga (ICC-01/04-01/06-1432 OA 9 OA 10), Appeals Chamber, 11 July 2008, §§ 97–102. An unbreakable thread 181 and ICC requires a trial chamber to be convinced of an accused’s guilt ‘beyond a reasonable doubt’ before a finding of guilt may be rendered. However, a study88 conducted by Professor Nancy Combs of William and Mary Law School raises interesting questions about the rigour with which the trial chambers of the ICTR, SCSL and now defunct SPSC have honored and upheld this fundamental component of the narrow presumption of innocence. While Professor Combs’s research is preliminary, her detailed review and comparison of trial chamber transcripts and judgments at these three institutions with respect to the evaluation of witness testimony is the first of its kind and well-worth considering. She concludes that ‘international criminal trials confront severe impediments to accurate fact-finding [. . .] that should give rise to serious doubts about the accuracy of the Trial Chamber’s factual determinations.’89 In particular, Combs asserts that ‘much eyewitness testimony at the international tribunals is of highly questionable reliability’90 due to: an absence of the education and life experience necessary for many witnesses to use maps or comprehend and answer basic questions regarding dates, distances and times; witnesses asserting a lack of knowledge regarding the information sought; interpretation91 and other communication difficulties between the witness and those questioning him or her including the effect of ‘[c]ultural norms and taboos’; witness unfamiliarity with the primarily adversarial system of criminal proceedings; discrepancies between the prior statement(s) of witnesses and their testimony at trial; and the impact of ‘group-based loyalty and ethnic divisions . . . [which] can create powerful incentives to put enemies in prison, whether they belong there or not . . .’92 Professor Combs’s findings led her to the conclusion that trial chambers of the ICTR, SCSL and SPSC by and large dealt with deficiencies and contradictions in witness evidence arising out of the above identified fact-finding impediments by excluding mention of these deficiencies and or contradictions in their judgments, and for those that they do note the chambers ‘reflexively attributed to innocent causes that do not impact the witnesses’ credibility.’93

88 N. Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of Inter national Criminal Convictions (1st edition, New York: Cambridge University Press, 2010), at 4. 89 Ibid. 90 Ibid. 91 For example, at the SPSC, witnesses primarily spoke one of three languages: Bahasa Indonesian, Tetum and Bunak. 92 Ibid., at 4–5. 93 Ibid., at 7–8. 182 Khan and Alagendra

There are, of course, exceptions to Combs’s posited general finding. For example, in the Jose Cardoso case before the SPSC, the Panel noted that it

took into consideration the fact that some witnesses were not educated persons and therefore impossible [sic] for them to respond directly to some questions. Example [sic] the witness Benedito Da Costa was asked, do you know the difference between soldiers and militia? But he could not understand and the Court had to ask the question in another way: What is soldier? What is militia?94

In Combs’s estimation, the general approach employed by the ICTR, SCSL and SPSC chambers constituted a ‘lackadaisical attitude’ of evidentiary evaluation that has resulted in these three institutions ‘convict[ing] the vast majority of defendants who come before them of at least one of the crimes for which they are charged.’95 Professor Combs proposes two reasons for the trial chambers’ contended lack of concern for these underlying impediments to accurate fact-finding. The first – minor factor – is that political considerations may ‘operate indirectly to bias the Trial Chambers in favour of conviction.’96 These subtle influences include the very political process by which these bodies are created97 and their judges selected (many of whom, she contends, come from academic and government backgrounds with little or no courtroom experience), the substantial costs – borne by the international community – of setting up and running these institutions and concomitant expectation that convictions will be rendered,98 and the outcry and criticism from victim communities and even

94 Judgment, Jose Cardoso (04/2001), 5 April 2003, § 277. 95 Ibid., at 8. 96 Ibid. 97 See supra 1–2. 98 Indeed, the full official titles of the ICTY and ICTR are, respectively: ‘International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991’ and ‘the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994’. It would have been better if the Security Council had named these judicial institutions the “International Criminal Tribunal for the Prosecution of Persons allegedly responsible . . .”. The optics that those charged are responsible, as intimated by the An unbreakable thread 183 governments upon the acquittal of persons whom they deem responsible for the horrific acts in question. The second, and more fundamental factor at work, according to Combs,

is that while Trial Chambers appear to be convicting defendants on the basis of the acts charged in the indictments and basing their factual findings about those acts solely on the testimony that has been presented to them, . . . the Trial Chambers in fact supplement that testimony with inferences that they draw from the defendants’ official position or institutional affiliation in the context of the international crimes that have been committed.99

Combs asserts that there is a direct correlation between the strength of the ‘inferences that can reasonably be drawn from official position’ and the willingness of a trial chamber to effectively lower the ‘beyond a reasonable doubt’ standard of proof by overlooking or otherwise mitigating deficiencies in the testimony of witnesses.100 While Combs then proceeds to evaluate the legitimacy and legal soundness of basing international criminal convictions on what is essentially a form of organizational liability,101 this is beyond the scope of the chapter, which is focused on the presumption of innocence as it is actually defined at the international and hybrid courts and tribunals. Accordingly, the following points can be distilled from Professor Combs’s research and findings. First, with respect to the three institutions (ICTR, SCSL and SPSC) that were the basis of her study, the arguable pervasiveness of the various fact-finding impediments identified by Combs as present in witness testimony upon which convictions were based suggests a systematic failure by the trial chambers to strictly apply the ‘beyond a reasonable doubt’ standard set out in their own statutes, rules of procedure and jurisprudence with regard to the evaluation of witness evidence. However, Combs cautions that she

name of the ad hoc Tribunals, is not without significance and sits rather uncomfortably with the presumption of innocence. 99 Combs, supra note 92, at 8–9. 100 Ibid., at 9. 101 Combs asserts that the ostensibly discredited organizational liability principle of the Nuremburg Charter in fact ‘inform legal doctrines, such as joint criminal enterprise, [and] also exert a continued and powerful influence over the way in which current international tribunals select their defendants, conduct their investigations, and, most relevantly, find facts at trial’ (Ibid., at 239). 184 Khan and Alagendra cannot answer the ultimate question of whether a defendant’s guilt was proven beyond a reasonable doubt in any particular case.102 Second, the fact-finding impediments identified by Professor Combs will not necessarily be present to the same degree at the international and hybrid courts and tribunals, or even among cases before the same entity. With respect to the ICTY, Combs submits that because it ‘prosecutes crimes that took place in Europe, the educational, cultural, and linguistic divergences between witnesses and courtroom staff that so impair communication at the ICTR, the SCSL and the [SPSC] do not prove as distortive.’103 Of course, as Combs only conducted a ‘cursory review’104 of ICTY trial transcripts, it is certainly possible that fact-finding impediments unique to the situation of the ICTY might have come to light upon a thorough review of ICTY transcripts. In any event, the potential educational, cultural and linguistic differences between, for example, an American or French judge at the ICTY, on the one hand, and a Serb, Bosnian or Croat witness on the other, may well have had an equivalent distortive effect on the evaluation of evidence – at least in the early days of the ICTY when institutional knowledge of Yugoslav history, culture, language and the conflict itself was still being acquired – as that Combs asserts was present at the ICTR, SCSL and SPSC. It should also be noted that one Timorese national, out of a three judge panel, sat on each case at the SPSC, and that in the Revolutionary United Front (‘RUF’) case at the SCSL, Judge Bankole Thompson hailed from Sierra Leone. Presumably the presence of these judges would mitigate in some respect cultural and perhaps linguistic difficulties faced by the trial chambers they sat on. Regardless of the accuracy of Professor Comb’s research and any assumptions made therein, in cases where such fact-finding impediments are believed to be prevalent, the defence may wish to consider calling expert witnesses who can testify on issues such as the understanding and perception of time and dates within the group(s) in question. In addition, when cross-examining (or perhaps even examining) fact witnesses counsel may find it helpful to ask a series of seemingly straightforward questions designed to elicit responses that demonstrate the existence of particular fact-finding impediments. The impact, if any, of these can then be addressed by all parties in submissions at the appropriate stage of proceedings, which will help ensure that such issues are properly evaluated by the Trial Chamber in rendering final judgment. With respect to the ICC, Combs suggests that with all of its cases to date having

102 Ibid., p. 7. 103 Ibid., p. 5. 104 Ibid. An unbreakable thread 185 arisen out of situations on the African continent, it has and will continue to face the types of fact finding impediments she identified with regard to the ICTR, SCSL and SPSC. Third, defence counsel should acknowledge the political realities within which the international and hybrid courts and tribunals operate and take these into account when making strategic case-related decisions or even with respect to the wording of filings. Finally, Professor Combs’s assertion that an accused’s official position or institutional affiliation is in fact the unseen pillar supporting convictions that are otherwise based on witness testimony riddled by fact-finding impediments is both controversial and compelling. However, the defence would be hard pressed to respond to inferences that are neither asserted by the prosecution nor referenced anywhere in a trial chamber judgment. Instead, as suggested above, an accused is likely best served by raising the issue of fact-finding impediments at the level of individual witnesses as well as at a more systematic level through expert testimony.

3 The Broad Presumption at the International and Hybrid Tribunals and Courts

As exemplified by Judge Robertson’s statement in dicta in the Prosecutor v. Norman,105 discussed above, the common law tradition generally equates the presumption of innocence with its narrow precept – namely, that in order to sustain a criminal conviction the prosecution has the burden of convincing the trier of fact of the accused’s guilt to the requisite standard of proof. In contrast, the broad presumption, arising out of European human rights law, seeks to structure criminal proceedings in a manner that treats an individual as if he or she is innocent prior to a finding of guilt.106 The more amorphous nature of the broad presumption, as well as the relatively detailed manner in which the rights of the accused are set forth in the statutes and rules of procedure and evidence of the international and hybrid tribunals and courts, have arguably

105 Decision on Appeal by the Truth and Reconciliation Commission for Sierra Leone (‘TRC’ or ‘The Commission’) and Chief Samuel Hinga Norman JP against the Decision of his Lordship, Mr Justice Bankole Thompson delivered on 30 October 2003 to deny the TRC’s Request to hold a Public Hearing with Chief Samuel Hinga Norman JP, Norman (SCSL- 2003-08-PT), Presidency, 28 November 2003, § 10 (‘The presumption of innocence . . . is really a rule which places the burden of proof on the Prosecution at trial . . .’). 106 Ashworth, supra note 6, at 243. 186 Khan and Alagendra provided less occasion for the judges of these institutions to address the broad presumption. Given its mandate, it is not surprising that the European Court of Human Rights (ECtHR) and the now defunct European Commission of Human Rights (‘Commission’) have addressed the broad presumption at some length when discussing Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms107 (ECHR). Subsection 1 of Article 6 establishes that the resolution of a criminal matter requires ‘a fair and public hearing . . . by an independent and impartial tribunal established by law’, while subsection 2 sets out that ‘[e]veryone charged with a criminal offence shall be presumed innocent until proved guilty according to law’. As noted by the Commission, the presumption of innocence principle contained in Article 6 is more than just a procedural edict – it is ‘a fundamental principle . . . which protects everybody against being treated by public officials as being guilty of an offence before this is established according to law by a competent court’.108 Among the rights and protections the ECtHR and Commission have deemed as originating in, or closely connected to the broad presumption of innocence are: the interlinked right to remain silent and privilege against self- incrimination,109 the right to request provisional release prior to trial,110 and the prohibition of decisions or actions by public bodies (not just courts111) that indicate a person is guilty prior to the determination of charges in a criminal case or a verdict being rendered.112 While the ICTY, ICTR, SPSC, SCSL, ECCC,

107 4 November 1950. 108 Krause v. Switzerland (1978), Application 7986/77, at 75. 109 See, e.g., Saunders v. United Kingdom, ECtHR (1996), Application 19187/91, § 68 (‘The right not to incriminate oneself . . . presupposes that the prosecution in a criminal case seek to prove their case . . . without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence . . .’); Heaney & McGuinness v. Ireland, ECtHR (2000), Application 34720/97, § 40. 110 Letellier v. France, ECtHR (1991), Application 12369/86, § 35 (in considering a request for pre-trial release, a court must ‘examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty . . .’). 111 Allenet de Ribemont v. France, ECtHR (1995), Application 15175/89, § 36 (‘[T]he presumption of innocence may be infringed not only by a judge or court but also by other public authorities.’). 112 See e.g., X. v. The Netherlands (1981), Application 8361/78, at 43 (cautioning governmental bodies that their statements on criminal investigations and persons related thereto ‘could be misinterpreted by the public and possibly lead to [an accused’s] innocence being called into question even before being tried’); Minelli v. Switzerland, ECtHR (1983), An unbreakable thread 187

STL and ICC have approached the interpretation of the narrow presumption of innocence in largely the same manner, differences emerge between these institutions with respect to the broad presumption of innocence.

3.1 Right to Remain Silent / Privilege against Self-incrimination The right to remain silent and the privilege against self-incrimination are, arguably, implicit in the broadly construed principle of the presumption of innocence.113 All of the international and hybrid tribunals and courts explicitly recognize the right to silence in their rules of procedure or statutes.114 Additionally, the ICC Statute establishes the concomitant principle that an accused’s decision to remain silent cannot be ‘consider[ed] in the determination of guilt or innocence’.115 The ICTY Appeals Chamber, following the lead of the Rome Statute, has also recognized this rule as implied by the ICTY Statute and RPE.116 In addition, the SPSC Transitional Rules Section 6.2(a) sets out that an accused’s silence ‘will not be interpreted as an admission’. The jurisprudence of the Panel clarified that this prohibition entailed the judges not drawing any ‘unfavorable inference’ from an accused’s exercise of his or her right to remain silent.117 In recognizing this counterpart maxim, the ICC, ICTY and SPSC implicitly acknowledge that the right to remain silent is based in, or at least closely related to, the broad presumption of innocence.118

Application 8660/79, § 37 (holding that the decision of a judicial body indicating its impression that an accused is guilty prior to such a finding violates the presumption); Fatullayev v. Azerbaijan, ECtHR (2010), Application 40984/07, § 160 (‘T]he presumption of innocence will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law.’). 113 M. Fedorova, S. Verhoeven and J. Wouters, ‘Safeguarding the Rights of Suspects and Accused Persons in International Criminal Proceedings’, Working Paper No. 27 (Institute for International Law) (June 2009) available online at http://www.law.kuleuven.be/iir/nl/ onderzoek/wp/wp137e.pdf, at 6. 114 Rule 42(A)(iii) ICTY RPE; Rule 42(A)(iii) ICTR RPE; Rule 42(A)(iii) SCSL RPE; Section 6.2(a) SPSC Transitional Rules; Rule 21(1)(d) ECCC Internal Orders; Art. 17(4)(g) STLSt. and Rule 65(A)(iv) STL RPE; Art. 55(2)(b) and Art. 67(1)(g) ICCSt. 115 Art. 55(2)(b) and 67(1)(g) ICCSt. 116 See e.g., Judgment, Delalić (IT-96-21-A), Appeals Chamber, 20 February 2001, § 783 (‘[A]n absolute prohibition against consideration of silence in the determination of guilt or innocence is guaranteed within the Statute and the Rules, reflecting what is now expressly stated in the Rome Statute.’) (emphasis in original). 117 Judgment, Joni Marques et al. (9/2000), 11 December 2001, § 672. 118 G. J. Knoops, Theory and practice of international and internationalized criminal proceedings, (First edition, The Hague: Kluwer, 2005), at 29 (asserting that articles 66 and 67(1)(g) 188 Khan and Alagendra

The case law of the ICTR and SCSL, as well as that of the more recently established ECCC and STL, however, does not specifically concede this counterpart maxim. It is therefore unclear whether these institutions deem the right to remain silent and the privilege against self-incrimination as arising from the broad presumption of innocence.

3.2 Provisional Release Judge Wolfgang Schomburg explains that while ‘the presumption of innocence implies that an accused party should not be kept in pre-trial detention save for certain exceptions, such as . . . flight risk, . . . risk of intimidating victims and witnesses, or if there are no more lenient measures available’, the circumstances of cases before the ad hoc international tribunals are unlike those before domestic criminal courts.119 Instead, the accused are charged with ‘extremely serious’ crimes, the ad hoc tribunals are completely dependent upon states to implement and monitor a provisional release, and the host state of the tribunal may itself refuse an accused granted provisional release the freedom to move on its territory.120 These additional considerations identified by Judge Schomburg are also applicable, to varying degrees, at the SCSL, SPSC, STL, ECCC and ICC,121 all of which, in addition to the ICTY and ICTR, provide for the possibility of provisional release.122 However, these institutions differ with respect to the extent

of the ICC Statute, when read together, extend the presumption of innocence to include both the right to remain silent and the corresponding principle that such silence cannot be considered in determining the guilt or innocence of the accused). 119 Schomburg, supra note 50, at 8. 120 Ibid. 121 As hybrid institutions, the SCSL and ECCC are located in the states where the crimes over which these judicial institutions have jurisdiction were allegedly committed. Provisional release into the community or even region may therefore present additional concerns such as the reaction of alleged victims and witnesses, and perhaps the safety of the accused. For example, the SCSL decided that the trial of former Liberian President Charles Taylor would be held in The Hague, not at the normal seat of the Court in Freetown, ‘[d]ue to concerns about regional security’. See ‘Prosecutor vs. Charles Taylor’, (Special Court for Sierra Leone) available online at http://www.sc-sl.org/CASES/ ProsecutorvsCharlesTaylor/tabid/107/Default.aspx. Concerns regarding the provisional release of accused persons back into the local community have also been expressed with respect to the ICTR. See D. Rearick, ‘Innocent Until Alleged Guilty: Provisional Release at the ICTR’, 44 Harvard International Law Journal (2003) 594, at 579–80. 122 See Rule 65 RPE of the ICTY, ICTR and SCSL; SPSC Transitional Rules Sections 19 to 21; Rule 65 ECCC Internal Orders; Rule 102 STL RPE; Art. 59 and 60 ICCSt. and Rules 118 and 119 ICC RPE. An unbreakable thread 189 to which the right to provisional release is linked to the presumption of innocence. Decisions of the ICTY Trial and Appeals chambers have explicitly stated that this is the case. For example, Judge Patrick Robinson noted that it is a customary norm, based on the presumption of innocence, that ‘pre-trial detention [is] an exception, . . . only permissible in special circumstances’,123 and therefore:

[w]hile the Tribunal’s lack of a police force, its inability to execute its arrest warrants in States and its corresponding reliance on States for such execution may be relevant in considering an application for provisional release, on no account can that feature of the Tribunal’s regime justify . . . warranting a detention of the accused for a period longer than would be justified having regard to the requirement of public interest, the presumption of innocence and the rule of respect for individual liberty.124

However, the Appeals Chamber cautioned that the ICTY’s ‘consistent jurisprudence does not treat the presumption of innocence as determinative in assessing whether provisional release should be granted. Rather, to the extent that this Tribunal has identified determinative factors, it has pointed to those specified in Rule 65(B)’ RPE.125 Rule 65(B) of both the ICTY and ICTR RPE originally included the requirement that provisional release be permitted only if an accused could show ‘exceptional circumstances’ in favour of release. Rule 65(B) was amended in 1999 to remove this requirement from the ICTY RPE, and in 2003 for the ICTR RPE. However, as noted above, while the jurisprudence of the ICTY established that pre-trial custody is, in principle, an exception not the rule in line with the presumption of innocence, the consistent jurisprudence of the ICTR was that the exceptional circumstances requirement was not contrary to international

123 Dissenting Opinion of Judge Patrick Robinson, Decision on Momcilo Krajisnik’s Notice of Motion for Provisional Release, Krajišnik (IT-00-39 & 40-PT), Trial Chamber I, 8 October 2001, § 6. 124 Ibid., § 11. See also Order on Motion for Provisional Release, Ademi (IT-99-37-PT), 20 February 2002, § 21 (‘[A]s a general rule, a decision to release an accused should be based on an assessment of whether public interest requirements, notwithstanding the presumption of innocence, outweigh the need to ensure, for an accused, respect for the right to liberty of person.’). 125 Decision on interlocutory appeal of denial of provisional release during the winter recess Prosecutor v. Milutinović et al. (IT-05-87-AR65.2), Appeals Chamber, 14 December 2006, § 12 (internal citations omitted). 190 Khan and Alagendra law.126 The ICTR’s jurisprudence justifies the Court’s robust defence of the propriety and normalcy of pre-trial detention – and therefore its seeming diminishment of the importance of the broad presumption of innocence with respect to provisional release – by pointing to the special distinguishing factors identified by Judge Schomburg, namely the nature of the crimes and the reliance on state cooperation.127 In contrast to the practice of the ICTY, the Appeals Chamber of the SCSL has disavowed any relevance of the broad presumption of innocence to provisional release:

The ‘presumption of innocence’ is no more (but no less) than the principle that the Prosecution must prove beyond reasonable doubt the guilt of the defendant. It is a fundamental right directed to serving the overriding end that the trial itself is fair. . . . But for all its resonance at criminal trials and appeals to put the Prosecution to proof of the elements of the offence charged, it has no application or relevance to the preconditions for bail which must be established under Rule 65(B).128

In support of its position the Appeals Chamber cited a holding of the United States Supreme Court that ‘the presumption of innocence is a doctrine that allocates the burden of proof in criminal trials . . . but it has no application to a determination of the rights of a pre-trial detainee during confinement before his trial has even begun.’129 In so ruling, the Appeals Chamber of the SCSL, unlike that of the ICTY, rejects the applicability of any broad presumption of innocence before the SCSL. The SPSC Transitional Rules, while not explicitly linking the right to pre- trial release to the presumption of innocence, indicates that the detention of a suspect is the exception to the general rule and is permissible only when certain criteria are met. In particular, SPSC Transitional Rules Section 20.1 required the Investigating judge to hold a hearing with 72 hours of a suspect’s

126 See e.g., Decision on the Defence’s motion on the release or alternatively provisional release of Ferdinand Nahimana, Nahimana (ICTR-99-52-T), Trial Chamber I, 5 September 2002, §§ 9–11. 127 A. Klip, Annotated leading cases of international criminal tribunals, (Oxford: Intersentia, 2005), at 96, citing V. Morris, The International Criminal Tribunal for Rwanda (New York: Transnational Publishers, 1998), at 531. 128 Appeal against decision refusing bail, Norman et al. (SCSL-04-14-AR65), Appeals Chamber, 11 March 2005, § 37. 129 Bell v. Wolfish, 441 U. S. 520 (1979), at 533. An unbreakable thread 191 arrest to review the legality of the arrest and the suspect’s detention. Pursuant to SPSC Transitional Rule 20.7(c), an Investigating Judge could only order the continued detention of a suspect when there were ‘reasonable grounds to believe that such detention is necessary’ based on one of the elements set out in SPSC Transitional Rule 20.8.130 Further, Transitional Rule 20.9 required the Investigating Judge to ‘review the detention of a suspect every thirty days’. In practice however, the detention regime at the SPSC was similar to that of the ICTR in that it was characterized by long periods of detention of suspects awaiting trial, many of whom had already been in custody prior to the establishment of the SPSC.131 With respect to the 30 day review of detention, the SPSC clarified that ‘where pre-trial detention has been ordered it can only be reviewed if new grounds for release are brought before the panel.’132 The Pre-Trial Chamber of the ECCC has also had occasion to consider the relevance of the broad presumption of innocence with respect to provisional detention under Rule 63 Internal Rules, and has acknowledged the pertinence of the principle in this context:133

. . . a decision not to release a charged person should be based on an assessment of whether public interest requirements as set out in Internal Rule 63(3)(b),134 notwithstanding the presumption of innocence, outweigh the need to ensure respect of a charged person’s right to liberty.

130 These are: (a) there are reasons to believe that the suspect will flee to avoid criminal proceedings; or (b) there is the risk that evidence may be tainted, lost, destroyed or falsified; or (c) there are reasons to believe that witnesses or victims may be pressured, manipu- lated or their safety endangered; or (d) there are reasons to believe that the suspect will continue to commit offences or poses a danger to public safety or security. 131 See S. Linton, ‘Cambodia, East Timor and Sierra Leone: Experiments in Justice’, 12 Criminal Law Forum (2001) 185, at 212 and 214; Report of the Secretary-General on the Transitional Administration in East Timor (UN Doc. S/2002/432), 17 April 2002, § 18. 132 Decision on the Application for the release of the Accused Benjamin Sarmento, Benjamin Sarmento (18/2001), 7 February 2003, §§ 15, 19–20. 133 Decision on Appeal Against Provisional Detention Order of Ieng Thirth, 002/19-09-2007- ECCC/OCIJ (Ieng Thirith), 9 July 2008, § 42 (‘The Pre-Trial Chamber further observes that any concern expressed by the Co-Lawyers as to whether the Co-Investigating Judges dis- regarded the presumption of innocence is resolved by the analysis that this Chamber has undertaken.’). 134 These are: (i) protection of victims and witnesses; (ii) preservation of evidence; (iii) ensuring the presence of the detained person at proceedings; (iv) the security of the detained person; (v) preservation of public order. 192 Khan and Alagendra

To balance these competing interests, proportionality must be taken into account.135

Two of the three additional provisional release considerations identified by Judge Schomburg – dependence on third states and the refusal of the host state to allow an accused who is released freedom of movement – are not relevant in the case of the ECCC.136 However, the third consideration – the seriousness of the crime – is recognized under the fourth and fifth criteria of Internal Rule 63(3)(b): respectively, the security of the charged person and the preservation of public order. These two considerations, along with risk of flight, the protection of victims and witnesses, and the preservation of evidence, have thus far prevailed over the presumption of innocence in the ECCC’s jurisprudential balancing act with respect to pre-trial detention. Though the STL does not presently have any suspects in custody, in his submissions to the Pre-Trial Judge regarding the four generals detained by Lebanese authorities in connection with the investigation into the attack against Prime Minister Rafiq Hariri, the Prosecutor of the STL determined that because the ‘information currently available to him was insufficiently credible to warrant indictment of the persons detained’ and ‘[i]n light . . . of the principle of presumption of innocence, . . . there was no cause . . . to hold [the generals] in detention’.137 At the ICC, the Pre-Trial, Trial and Appeals chambers have largely avoided discussion of the presumption of innocence, instead focusing on whether the conditions necessary for an order for pre-trial detention, set out under Article 58(1)(b) ICC Statute,138 have been met. However, Judge Pikas of the Appeals Chamber has expounded: ‘Ensuring that the person stands trial is the only cause that may legitimise pre-trial detention. Detention for any other

135 Decision on Khieu Samphan’s Appeals Against Order Refusing Request for Release and Extension of Provisional Detention Order, 002/19-09-2007-ECCC/OCIJ (Khieu Samphan), 3 July 2009, § 91. 136 All accused persons before the ECCC are Cambodian nationals. This is not the case with the SCSL. 137 Order regarding the detention of persons detained in Lebanon in connection with the case of the attack against Prime Minister Rafiq Hariri and others, CH/PTJ/2009/06, 29 April 2009, § 12 (summarising the Prosecutor’s submissions) (emphasis added). 138 These are: (i) ensuring a person’s appearance at trial; (ii) ensuring the person does not obstruct or endanger the investigation or the court proceedings; or preventing the person from continuing with the commission of the crime(s) he or she is alleged to have committed or a related crime within the jurisdiction of the Court and which arises out of the same factual basis. An unbreakable thread 193 purpose is incompatible with the presumption of innocence . . .’139 Further, in a decision granting Jean-Pierre Bemba Gombo interim release (reversed by the Appeals Chamber),140 Single Judge Trendafilova held that the potentially lengthy sentence the accused may face in the event of a conviction was not determinative of whether he posed a high risk of flight, also noting that the accused ‘still benefits from the presumption of innocence in accordance with article 66 of the Statute’. The chambers of the ICC have therefore not deemed it necessary to call upon the broad presumption of innocence as a core principle in determining the pre-trial detention of suspects. That being said, the above cited decisions of the Appeals Chamber and Single Judge strongly suggests that the ICC would caucus with the ICTY and ECCC with respect to the question of the relationship between the broad presumption of innocence and provisional release. The jurisprudence of the SCSL stands alone in explicitly denying such a connection, while the approach of the ICTR appears to straddle the two camps. The practice of the SPSC suggests that whatever respect the wording and substance of the Transitional Rules accorded the principle of the presumption of innocence with regard to pre-trial detention, the judges of the SPSC readily and regularly found the reasonable grounds necessary to warrant pre-trial detention.

3.3 Statements and Actions by Tribunal and Court Officials As summarized above,141 the ECtHR and the Commission have reiterated in a number of cases that actions or statements by a public official that indicate a belief that a person is guilty prior to a finding of guilt being issued in accordance with the law violates the presumption of innocence. The presumption

139 Dissenting Opinion of Judge Georghios M. Pikis, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled ‘Decision on the release of Thomas Lubanga Dyilo’, Lubanga (ICC-01/04-01/06-1487 OA 12), Appeals Chamber, 21 October 2008, § 12. 140 Judgment on the appeal of the Prosecutor against Pre-Trial Chamber II’s ‘Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa’, Bemba (ICC-01/05- 01/08 OA 2), Appeals Chamber, 2 December 2009 (holding, inter alia, that interim release may not be granted prior to a Chamber setting out the conditions that would make such release possible, specifying the state where the accused would be released, and evaluating whether said state is capable of implementing the conditions specified by the Chamber). 141 See supra note 117. 194 Khan and Alagendra of innocence requires that judges refrain from prejudging any case.142 It also means that authorities, including prosecutors, police and government officials must not make statements indicating an opinion about the guilt of an accused before a trial is concluded. It also means that the authorities have a duty to discourage the media from undermining the fairness of a criminal trial by prejudging or influencing its outcome, in a manner consistent with the right of freedom of expression and the public’s right to information about court proceedings:143

There is perhaps a great deal of good sense in the SCSL Code of Conduct, which applies equally to prosecution counsel, requiring that “Prosecution Counsel shall respect the presumption of innocence of all suspects and accused, and in particular, shall refrain from expressing a public opinion on the guilt or innocence of a suspect or an accused in public or outside the context of proceedings.”144 Such restraint is a corollary to the presumption of innocence.

Informing the public that a criminal investigation is taking place, and doing so naming a suspect, or stating that a suspect has been arrested, is not considered a violation of the presumption of innocence so long as there is no declaration that the person is guilty. The European Court explained that a clear distinction must be made between stating that someone is suspected of having committed a criminal offence, which is permissible, and declaring that a person has committed a crime which, in the absence of a final conviction, violates the presumption of innocence.145

142 Telfner v. Austria (33501/96) European Court (2001), at 15, 19 and 20. 143 HRC General Comment 32, p. 30; Gridin v. Russian Federation, UN Doc CCPR/ C/69/D/770/1997(2000) at 3.5, 8.3; Engo v. Cameroon, UN Doc CCPR/C/96/D/1397/2005 (2009) at 7.6; Law Office of Ghazi Sulemain v. Sudan, Un Doc (222/98 and 229/99). African Commission (2003) at 54, 56; Lori Berenson-Meja v. Peru, Inter American Court, (2004) at paras. 158–161; European Court of Human Rights, G. C. R. v. Romania (20899/03), (2011) at 54061and 46; CERD General recommendation XXXI at para. 29; Papon v. France (No. 2) (54210/00), ECHR (2001) at para. 6(d). Generally see “Amnesty International, Fair Trials Manual”, Ch 15.3, (“Protecting the Presumption of Innocence in Practice”). 144 Art 24(a), SCSL Code of Conduct. 145 Krause v. Switzerland (7986/77) (European Commission Decision), (1978), para. 3; Fatullayev v. Azerbaijan (40984/07), (2010), para. 160–163; Khuzhin and Others v. Russia (13470/02) (2008), paras. 93–97. An unbreakable thread 195

The ICTR Referral Chambers, when ordering that the case against Bernard Munyagishari be referred to the authorities of the Republic of Rwanda for trial, warned that “should actions or statements of authorities, including the judiciary, undermine legal framework that ensures the presumption of innocence of the Accused, the case is subject to revocation in accordance with Rule 11 bis (F)”.146 Likewise, a decision from Pre-Trial Chamber I of the ICC,147 similarly establishes that the principle of the presumption of innocence guaranteed a suspect or accused under Article 66 ICC Statute may be impinged by the public statements of Court officials.148 The Decision stemmed from a request for relief149 filed by the defence of Mr. Callixte Mbarushimana in response to a press release that had been issued by the ICC Prosecutor shortly after Mr. Mbarushimana’s arrest by French authorities acting under an ICC arrest warrant. The press release stated, inter alia, that the FDLR – the group Mr. Mbarushimana was alleged to be a senior leader of – ‘was involved in the commission of more than 300 rapes in [the Democratic Republic of the Congo]’, and that it ‘continue[s] to commit horrific crimes against the civilian population’.150 The Chamber expressed disquiet at the above portions of the Prosecutor’s press release, saying they ‘were formulated without due care and may lead to misinterpretation’. The Chamber suggested that it would have been better if the press release had instead indicated there were ‘reasonable grounds to believe’ such facts and that the arrested person was ‘alleged’ to be criminally responsible.151 However, in the Chamber’s view, the potential negative impact

146 Decision on the prosecutor’s request for referral of the case to the Republic of Rwanda Prosecutor v. Bernard Munyagishari (Case No. ICTR-2005-89-R11bis), Referral Chambers Designated Under Rule 11 bis, 6 June 2012, § 55. 147 Decision on the Defence Request for an Order to Preserve the Impartiality of the Proceedings, Mbarushimana (ICC-01/04-01/10-51), Pre-Trial Chamber I, 31 January 2011. 148 See Ibid., § 7. 149 Defence Request for an Order to Preserve the Impartiality of the Proceedings, Mbaru shimana (ICC-01/04-01/10-14), Pre-Trial Chamber I, 18 October 2010. 150 ICC Press Release, ‘New ICC Arrest: Leader of Movement involved in massive rapes in the DRC is apprehended in Paris’, 11 October 2010, available online at http://www.icc- cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%20 0104/related%20cases/icc01040110/press%20releases/Pages/new%20icc%20arrest_%20 leader%20of%20movement%20involved%20in%20massive%20rapes%20in%20the%20 drc%20is%20.aspx. 151 Decision on the Defence Request for an Order to Preserve the Impartiality of the Proceedings, Mbarushimana (ICC-01/04-01/10-51), Pre-Trial Chamber I, 31 January 2011, § 17. 196 Khan and Alagendra of the impugned wording on the public’s perception of Mbarushimana’s guilt was mitigated by other information in the press release. Specifically, the press release made ‘clear the proceedings are at an early stage and attributes the perpetration of crimes to an armed group, [which] reduces the risk of misunderstanding of the alleged responsibility of Mr Mbarushimana’.152 While the Prosecutor was reprimanded by the Chamber – not sanctioned as the defence in that case had requested – the Chamber firmly instructed the then Prosecutor that ‘when making his future public statements, [he] should be mindful of the suspects’ right to be presumed innocent until proved guilty’.153 Pre-Trial Chamber II of the ICC was faced with two similar applications by the defence of Ambassador Francis Kirimi Muthaura in the Muthaura et al. case. The defence’s first application arose out of a press conference held by the ICC Prosecutor in which he stated that Ambassador Muthaura had control over the police in Kenya – a key assertion that was disputed by the defence.154 The defence requested the Chamber to issue an order precluding the Prosecutor from making public comments that go to the merits of the case or, if such comments were deemed necessary to carry out his function, mandate that the Prosecutor ‘make clear that his assertions are mere allegations [. . .], the veracity of which are to be determined by the ICC.’155 The defence submitted that the Chamber’s intervention was necessary to preserve the fair trial rights of the Ambassador, including preventing prejudice to defence investigative efforts. The Chamber denied the application, finding that the Prosecutor’s statement was made in relation to the Ambassador’s current position and with respect to witness protection issues. However, the Chamber held that the issues raised by the defence are of ‘legitimate concern’ and emphasised that the safeguarding of the proper administration of justice and the integrity of the judicial proceedings requires the parties, participants and any person involved in the proceedings, to refrain from making public statements or engage in any other activity which could have an impact on the evidence or the merits of the case or could be perceived as showing a predetermination of the cause pending before the Court.156

152 Ibid., § 13. 153 Ibid., § 17. 154 Application for Order to the Prosecutor regarding extra-judicial comments to the press, Muthaura et al. (ICC-01/09-02/11-20), 30 March 2011, § 9. 155 Ibid., § 26(b). 156 Decision on the Defence ‘Application for Order to the Prosecutor Regarding Extra-judicial Comments to the Press’, Muthaura et al. (ICC-01/09-02/11-83), Pre-Trial Chamber II, 5 May 2011, § 6 (emphasis added). An unbreakable thread 197

The Muthaura defence’s second application157 concerned an interview given by the Prosecutor to a Kenyan television station the day following the close of the confirmation hearing in the Muthaura et al. case. The defence submitted that the Prosecutor had blatantly mischaracterised key portions of a witness’s testimony related to their client, thereby undermining the integrity of the proceedings and the rights of the suspect. The Chamber rejected the application, holding that the Prosecutor was relating his own opinion on the evidence presented and the conduct of the proceedings in a manner that ‘does not provide for a conclusion that the Prosecutor made a pre-determination of the pending case or interfered with the integrity of the proceedings . . .’158 Pre-Trial Chamber I’s recognition that the presumption of innocence applies to protect the rights of a suspect or accused in this context is likely to be well received at those international and hybrid courts and tribunals that appear to embrace the applicability of a broad presumption of innocence, such as the ICTY and ECCC. Similarly, while Pre-Trial Chamber II did not explicitly reference the presumption of innocence, the Chamber’s holding that Court officials, participants or indeed any individual involved in the proceedings must not make statements that could be interpreted as showing the predetermination of a case is central to the broad presumption of innocence. There is a further area that will need clarification in due course. Is the Prosecutor entitled to allege that person X was involved in criminal conduct for the purposes of establishing a case against person Y, notwithstanding the fact that the case against person X, on the same facts, has previously been withdrawn by the Prosecutor or not confirmed by the PTC? Whilst it is accepted that individuals not charged may be included in the prosecution’s theory of its case (for example, unindicted co-conspirators) the situation may be different where a person is charged and a Chamber finds that there is insufficient evidence to confirm that case, or for that case to continue to trial.159

157 Application by the Defence of Ambassador Francis K. Muthaura in relation to public statement of the Prosecutor, Muthaura et al. (ICC-01/09-02/11-359), 24 October 2011. 158 Decision on the ‘Application by the Defence of Ambassador Francis K. Muthaura in Relation to Public Statement of the Prosecutor’, Muthaura et al. (ICC-01/09-02/11-370), Pre-Trial Chamber II, 16 November 2011, § 9 (emphasis added). 159 It would perhaps be a somewhat pyrrhic victory for an accused to have his case not confirmed or withdrawn, only to see allegations against him continue unabated in circumstances where he is deprived a right to answer those very allegations because of the withdrawal or non-confirmation of charges. Yet this is apparently what lay in store for Ambassador Muthaura in the ICC Kenya II case. The case against Ambassador Francis Muthaura was withdrawn by the Prosecutor, after defence submissions, on the basis that there was insufficient evidence to continue with the confirmed charges. Despite this the 198 Khan and Alagendra

The question appears settled in the case of a person acquitted by a final judgement of court (including on procedural grounds). In that case, the final judgement is binding on all state authorities. Accordingly, in these circumstances, the police, prosecutors or the courts should refrain from implying that the person may have been guilty, so not as to undermine the presumption of innocence, respect for court judgements and the rule of law.160 In this context the European Court has held that the presumption of innocence was violated when, after the accused was acquitted or proceedings were terminated, courts voiced suspicions against the individual’s innocence when explaining a decision to refuse compensation for pre-trial detention.161

4 Conclusion

While the presumption of innocence is upheld as a fundamental precept of criminal justice before the various international and hybrid courts and tribunals, the content and application of the presumption before the ICTY, ICTR, SPSC, SCSL, ECCC, STL and ICC is not a wholly settled matter. The statutes, rules of procedure and evidence and jurisprudence of these institutions accept that the ‘narrow’ presumption of innocence mandates that it is solely the prosecution’s burden to convince a majority of the trial chamber of the accused’s guilt beyond a reasonable doubt. That being said, the influence of the civil law tradition has also provided for the participation, to varying degrees, of judges and sometimes victims in the fact-finding process. Whilst this does not amount to a lessening of the prosecution’s burden of proof in any formal sense, it may significantly assist the prosecution discharge its burden of proof, or assist the defence establish doubt, depending upon the facts of a particular case. It is the intervention of victims, perhaps, where this is brought into especially stark relief. There may be occasions where victims’ lawyers find it hard to resist the temptation to trespass into a role more akin to that of second prosecutor as

Prosecution maintained the same allegations against Ambassador Muthaura in the Pre- Trial Brief subsequently filed in support of case against his erstwhile co-accused, Uhuru Kenyatta. 160 See Allen v. United Kingdom, (25404/09) ECtHR, Grand Chamber (2013), para. 103. (Also see Amnesty International Fair Trial Manual, Ch. 15.4). 161 Sekanina v. Austria, (13126/78) (1993) paras. 30–32; Minelli v. Switzerland (8660/79) (1983); Hammem v. Norway, (30287/96) (2003) paras. 47–48. An unbreakable thread 199 opposed to solely focusing on the interests of the victims or how they have been affected.162 Of greater concern is the application of the ‘beyond a reasonable doubt’ standard by the trial chambers of these institutions. In particular, the various fact-finding impediments identified by Professor Nancy Combs in her in-depth study of the trial transcripts and judgments of the ICTR, SCSL and SPSC suggests that the trial chambers of these institutions effectively lowered the standard of proof below that of ‘beyond a reasonable doubt’ with respect to the evaluation of witness testimony upon which convictions were (at least in part) based. While Professor Combs’s findings are preliminary, Defence counsel – particularly those practicing before the ICC, where the same types of fact-finding challenges identified by Combs are likely to be encountered – may wish to consider addressing this fundamental evidentiary issue at the level of individual witnesses as well as on a systematic basis through expert testimony. With respect to the ‘broad’ presumption of innocence, the Appeals Chamber of the SCSL appears to deny any relevance to this principle, which arose out of European human rights law. To varying degrees, the jurisprudence of the ICC, ICTY, SPSC and ECCC does recognize the importance of the broad presumption in anchoring certain core rights of an accused, such as the right to remain silent, the right against self-incrimination and the right to request provisional release. Further, one pre-trial Chamber of the ICC has acknowledged that the broad presumption of innocence may preclude Court officials from making public statements that carry the innuendo that a suspect or accused person is guilty of a crime prior to such a decision having been rendered. The jurisprudence of the ICTR, while not explicitly rejecting the broad presumption of innocence, has not embraced it in quite the same manner as its ad hoc sibling. The STL’s dearth of jurisprudence does not allow for a proper evaluation of its approach to the broad presumption at this stage. It will be interesting to see how that Tribunal deals with this most basic of rights.

162 For example, during the confirmation of charges hearing in the Mutharua et al. case before Pre-Trial Chamber II of the ICC, Defence counsel objected to the substance of the Legal Representative of Victims’ questioning of a Defence witness, submitting that the Legal Representative was simply repeating the line of questioning of the Prosecution instead of asking questions relevant to the interests of victims. Two days later, on the next occasion that the Legal Representative sought the Chamber’s permission to question a witness, the Presiding Judge admonished: ‘You are going to ask questions regarding the interests of victims being affected? . . . [O]f course you have the floor, but with the request of the Chamber that we see the direct link to the victims . . .’ (Transcript of the Confirmation of Charges Hearing, Muthaura et al. (ICC-01/09-02/11-T-11-Red-ENG WT), Pre-Trial Chamber II, 29 September 2007, at 70). 200 Khan and Alagendra

As a final point, it is perhaps worth returning to the precedent set by Nuremburg trials – both with regard to its procedural respect for the presumption of innocence and the fact that three accused were actually acquitted and set free out of the twenty-one persons who stood trial (an acquittal rate of fourteen percent). The ICTR, established five decades after the IMT, and over the course of twenty years of operation, has registered fourteen acquittals out of the seventy-five persons against whom verdicts were issued (an acquittal rate of over eighteen percent).163 One must of course be cautious to draw broad conclusions from this comparison – the oft repeated saying that some persons use statistics as a drunken man uses lamp-posts – for support rather than for illumination – comes to mind. In a well-known dissent, Judge Hunt, sitting in the Appeals Chamber of the ICTY once stated that “[t]his Tribunal will not be judged by the number of convictions which it enters, or by the speed with which it concludes the Completion Strategy which the Security Council has endorsed, but by the fairness of its trials”. 164 In the same way, the number of acquittals rendered by a judicial institution is not, per se, dispositive as to the fairness of the trials conducted. That is quite different from saying, however, that, such acquittals are entirely irrelevant in assessing fairness of the institution under consideration. That acquittals have been rendered by several international criminal courts and tribunals constitutes, perhaps, some tangible evidence that Justice Jackson’s insistence that such trials must be real – not predetermined political theatre – has been well heeded. The principle of effective and meaningful trials has taken indelible root within the international legal order. A variety of international courts or tribunals have been established in the years after Nuremberg – commencing with the establishment of the ICTY and then ICTR. Several notable prosecutors have been appointed to these international or hybrid courts and tribunals. Hassan Jallow is one of a select group of prosecutors that has sincerely attempted to follow the enlightened path paved by that great lawyer, prosecutor and jurist, Mr. Justice Robert Jackson. Hassan Jallow is a man whose professional career has at its core a concept that is simple to express and yet so very difficult to honour – to see that justice is done in every sense of the word and for every actor connected to international criminal proceedings. The system of international criminal justice has immea- surably benefited from Hassan Jallow’s many contributions, and we as practitioners in the field owe to him a debt of gratitude.

163 See ‘The ICTR in brief’ at: http://www.unictr.org/en/tribunal. 164 Dissenting Opinion of Judge David Hunt on admissibility of evidence in chief in the form of written statement, Prosecutor v. Slobodan Milosevic (IT-02-54-AR73.4), Appeals Chamber, 21 October 2003, §22. chapter 13 Cumulative Charges under International Criminal Law Issues and Perspectives

Bongani C. Majola

1 Introduction

Cumulative charges, or cumulative charging, is a process “by which an accused can be charged with a number of different crimes on the same underlying acts, with the charges being expressed cumulatively rather than alternatively.”1 Practically, the issue of cumulative charging implies that an accused may be charged with many different crimes for the same act. Instead of charging alternatively, the prosecution prefers to charge them cumulatively as different crimes even though they are based on the same single act. For example, for the same single act of killing of one person during an armed conflict, an accused may be cumulatively charged with crimes against humanity, war crimes and genocide, if the evidence is sufficient and all the requirements of such crimes are met in that single act of killing. Cumulative charges must be distinguished from the concept of cumulative convictions, which means that an accused is convicted of multiple offenses under different legal headings for the same conduct.2 Though they tend to the same point and are often used to mean the same thing, the difference between both concepts is that “cumulative charges may result in multiple convictions or a single conviction, but are not determinative”3 of each other.

1 Fiona O’Regan, “Prosecutor v. Jean-Pierre Bemba Gombo: The Cumulative Charging Principle, Gender-Based Violence, and Expressivism,” 43 Geo. J. Int’l L. 1323 (2012). 2 Ildiko Erdei, “Cumulative Convictions in International Criminal Law: Reconsideration of a Seemingly Settled Issue,” 34 Suffolk Transnat’l L. Rev. 317 (2011); Attila Bogdan, “Cumulative Charges, Convictions and Sentencing at the ad hoc International Tribunals for the former Yugoslavia and Rwanda,” Melbourne Journal of Int’l L. (2002). 3 Ildiko Erdei, “Cumulative Convictions in International Criminal Law: Reconsideration of a Seemingly Settled Issue,” 34 Suffolk Transnat’l L. Rev. 317 (2011).

Nonetheless, cumulative charging must be distinguished from other related concepts such as cumulative sentences and alternative charges. Cumulative sentences is a mode of sentencing by which the judge imposes separate consecutive sentences upon an accused who has been found guilty of two or more distinct offenses. This means that the judge may sentence the accused to serve successive terms for each offense and the result will be an accumulation of years of imprisonment. For example, if the accused has been found guilty of robbery, rape and murder, the final sentence will be the sum of the sentence of each offence and the accused will serve the years of imprisonment for robbery, in addition to serving the years of imprisonment for rape, as well as the years of imprisonment for murder. Alternative charging is quite different as it occurs when the prosecution or the judge decides to charge the same acts by using a different set of crimes alternatively. In other words, for the same single act of killing only one person during an armed conflict, the prosecution will decide to charge it alternatively either as crime against humanity or as a war crime or as a genocide, while in cumulative charging he or she will charge it as crime against humanity, war crime and genocide. Cumulative charging is a practice that is used both in common law and civil law systems. However, the matter is approached differently in both systems. Under the former, it is possible to charge the defendant with multiple crimes, leaving the Judge to decide in respect of which crime the accused should be found guilty. Under the latter, the prosecution charges the offender with the crime that has been committed under the law, thus precluding cumulative charging as part of prosecutorial strategy. In its trial Judgement, the International Criminal Tribunal for Rwanda (ICTR) recalled that civil law systems allow multiple charges under the principle known as concours d’infractions.4 On this basis the ICTR concluded that “it is acceptable to convict [an] accused of two offences in relation to the same set of facts.”5 The Special Tribunal for Lebanon (STL) has also stressed that Lebanese law, which is influenced by French law, also permits the practice of cumulative charging.6 It is also imperative to note that while the Statute establishing the Special Court for Sierra Leone does not contain a provision on cumulative charging, in the course of its functions, the Court has addressed the matter as well.7

4 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Judgment, ¶ 467 (Sept. 2, 1998). 5 Id. at ¶ 468. 6 Prosecutor v. Ayyash et al., STL-11/I, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging; Appeals Chamber, ¶¶ 270–271 (Feb. 16, 2011). 7 See Taylor’s case, FN 98 and Brima’s case FN 32 below. Cumulative Charges under International Criminal Law 203

At the domestic level, cumulative charging is also approached differently when it comes to civil law and common law systems. Common law systems allow cumulative and alternative charging with multiple crimes against an accused but leave it “to the judge or jury to decide of which crime the accused should be found guilty.”8 In civil law systems, the principle of legality requires that “the prosecutor charges the offender with the crime that has been committed under law, thus precluding cumulative charging or charging in the alternative as part of prosecutorial strategy.”9 However, civil law systems have other related concepts known as ‘apparent concurrence’ and ‘real concurrence.’ Apparent concurrence usually occurs “when the perpetrator performs an act that may appear to simultaneously breach several criminal provisions, whilst in reality it only violates one.”10 Real concurrence, on the other hand, implies that the perpetrator has committed several crimes in one act, and has violated “the same criminal provision against more than one person, or a number of distinct criminal provisions through disparate acts.”11 The practice of cumulative charging was echoed in international criminal procedure but not without practical problems. Amongst many procedural issues, it has particularly raised “fundamental questions regarding fairness to the accused, to the victims of atrocities and to the Tribunal’s objectives.”12 The purpose of this paper is to explore the different problems arising from the practice of cumulative charging before international criminal jurisdictions, and also to present a prospective outlook of the practice of cumulative charging in international criminal law. The aim of this inquiry is also to contribute to the development of the jurisprudence on cumulative charging in international law to ensure that while fundamental rights of the accused are respected and the right to a fair trial is guaranteed, the prosecutor has broad powers to charge all relevant offences, thus ensuring that the full extent of an offender’s criminality is reflected in the indictment. Part I and II respectively present the practice and elements of cumulative charging under international criminal law. Part III and IV analyze the different issues which arise from such practice, while Part V

8 Attila Bogdan, “Cumulative Charges, Convictions and Sentencing at the ad hoc Inter- national Tribunals for the former Yugoslavia and Rwanda,” Melbourne Journal of Int’l L., (2002). 9 Id. 10 Olaoluwa Olusanya, Double Jeopardy Without Parameters: Re-characterisation in Inter national Criminal Law 129 (2004). 11 Id. 12 Nisha Valabhji, “Cumulative Convictions Based on the Same Acts Under the Statute of the I.C.T.Y,” 10 Tul. J. Int’l & Comp. L. 186 (2002). 204 Majola pays a particular attention to the perspectives of cumulative charges after the ICC Bemba case.

2 Cumulative Charges before the International Criminal Courts and Tribunals

Cumulative charging under international criminal law is a pure creation of the practice of the international criminal bodies. From Nuremberg and Tokyo to the ad hoc tribunals and other hybrid and internationalized courts, statutes do not contain any provision on cumulative charging. The International Criminal Court (ICC) Statute does not expressly contain such specific provision on cumulative charges, though “it merely presumes, in Article 78(3), the obvious possibility of a person being found guilty of more than one crime.”13 The Article provides that “when a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with article 77, paragraph 1 (b).” International criminal bodies had, thus, come to deal “prag- matically with the issue”14 of cumulative charging and convictions. The result is that “in the earlier years of the international criminal tribunals, there was a lack of uniformity in the law with respect to cumulative charging.”15 Indeed, the question of cumulative charging came up for the first time before the International Military Tribunals of Nuremberg (IMTN or Nuremberg Tribunal) and the Far East (IMTFE or Tokyo Tribunal). Case law of both Military Tribunals has influenced and guided the ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR), which have followed the above reasoning to allow cumulative charging. As for the ICTR for instance, a Trial Chamber referred to the Nuremberg precedents and stressed that “the indictment against the major German War Criminals presented to the International Military Tribunal stated that ‘the prosecution will rely upon the facts pleaded under Count Three (violations of the laws and customs of war) as also constituting crimes against humanity (Count Four)’. . . Pohl, Heinz Karl

13 Antonio Cassese, The Oxford Companion to International Criminal Justice (2009). 14 Id. 15 Prosecutor v. Ayyash et al., STL-11/I, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging; Appeals Chamber, ¶ 287 (Feb. 16, 2011). Cumulative Charges under International Criminal Law 205

Franslau, Hans Loerner, and Erwin Tschentscher were all found to have committed war crimes and crimes against humanity [for the same set of acts].”16 The international criminal bodies continuously allowed the prosecution to bring cumulative charges “whenever [the prosecution] contends that the facts charged violate simultaneously two or more provisions of the Statute.”17 In dealing with the issue, international criminal tribunals have adopted either an extensive or a restrictive approach.

2.1 Extensive Approach The International Military Tribunals were the first international criminal bodies to try individuals who committed international crimes, but also the first international tribunals that addressed the issue of cumulative charging in international criminal proceedings. The Military Tribunals extensively used the concept of cumulative charges to convict the accused of different crimes on the basis of the same acts. During the Nuremberg Trials, for instance, the prosecution largely used the same single set of acts to charge two or more counts, and such practice was accepted by the judges. In the Justice case, the prosecutors stated that they will use the same facts pleaded under the count of violations of the laws and customs of war to also support the crimes against humanity charge.18 In one of the cases, the Tribunal endorsed this approach by concluding that “war crimes were committed on a vast scale, which were also crimes against humanity [and] it is clear that war crimes may also constitute crimes against humanity; the same offences may amount to both types of crimes.”19 In several decisions, the Nuremberg Tribunal has approved cumulative charging and convicted many accused with war crimes and crimes against humanity based on the same acts.20 Before the Tokyo Tribunal, cumulative charging was largely accepted and even considered as a common practice.

16 Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T ¶ 290 (Jan. 27, 2000). 17 Prosecutor v. Kupreskic, Case No. ICTY IT-95-16-T, Trial Judgment ¶ 727 (Jan. 14, 2000). 18 Alex Obote-Odora, “Conspiracy to Commit Genocide: Prosecutor v. Jean Kambanda and Prosecutor v. Alfred Musema,” Murdoch University Electronic Journal of Law ¶¶ 67–69 (2001). 19 Trial of the Major War Criminals, Nuremberg, 1947, Volume I, 253–55. 20 SaCouto Susana and Cleary Katherine, The Practice of Cumulative Charging before International Criminal Bodies; (Amicus Curiae submitted before the Appeal Chamber of the Special Tribunal for Lebanon,) (Feb. 10, 2011) citing United States v. Karl Brandt, et al., reprinted in I Trials of War Criminals Before the Nuremberg Military Tribunals 11, 16 and United States v. Oswald Pohl, et al., reprinted in V Trials of War Criminals Before the Nuremberg Military Tribunals 204, 207, available at: http://avalon.law.yale.edu/ subject_menus/imt.asp (last visited January 2014). 206 Majola

The IMTFE concluded that it is the situation that “springs from the adoption by the Prosecution of the common practice of charging all matters upon which guilt is indicated by the evidence it proposes to adduce even though some of the charges are cumulative or alternative (. . .).”21 In one of the cases, the Prosecution cumulatively and alternatively brought 756 separate charges regarding to the same crime, the crime against peace.22 In some of their decisions, both the ICTR and the ICTY have also approached the problem of cumulative charges extensively. Either they considered the issue as “only a theoretical matter without any practical relevance and that cumulative charging “[was] a matter that [would] only be at all relevant insofar as it might affect penalty, it can best be dealt with if and when matters of penalty fall for consideration” and “penalty cannot be made to depend upon whether offences arising from the same conduct are alleged cumulatively or in the alternative” because “what is to be punished by penalty is proven criminal conduct and that will not depend upon technicalities of pleading.”23 The International Criminal Tribunal for Rwanda (ICTR) started to deal with the issue since its first decision, the Akayesu case. The Akayesu indictment cumulatively charged the accused with different offences, including genocide, crimes against humanity and violations of common article 3 of the Geneva Conventions, on the basis of the same set of acts.24 On the question of whether it is suitable to charge an accused with two or more cumulative counts on the same act, the Trial Chamber held that:

[I]t is acceptable to convict the accused of two offences in relation to the same set of facts in the following circumstances: (1) where the offences have different elements; or (2) where the provisions creating the offences protect different interests; or (3) where it is necessary to record a conviction for both offences in order fully to describe what the accused did. However, the Chamber finds that it is not justifiable to convict an accused of two offences in relation to the same set of facts where (a) one offence is a lesser included offence of the other, [. . .] or (b) where one offence charges accomplice liability and the other offence charges liability as a principal.25

21 John Pritchard and Sonia M. Zaide, The Tokyo War Crimes Trial 450 (2015). 22 Id. 23 Prosecutor v. Tadic, Case No. ICTY-IT-94-1-T, ¶ 17 (Nov. 14, 1995). 24 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, “Indictment” ¶¶ 12–23. 25 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Judgment ¶ 468 (Sept. 2, 1998). Cumulative Charges under International Criminal Law 207

On the question of whether it is possible to convict an accused cumulatively for genocide and of conspiracy to commit genocide, the Trial Chamber has extensively admitted such possibility and held that the “offences covered under the Statute – genocide, crimes against humanity and violations of Article 3 common to the Geneva Conventions and of Additional Protocol II – have disparate ingredients and (. . .) as a result, multiple offences may be charged on the basis of the same acts, in order to capture the full extent of the crimes committed by an accused.”26 The ICTY extended the practice of cumulative charging in its historical Celebici case.27 In effect, the Appeals Chambers ruled that “cumulative charging is to be allowed in light of the fact that prior to all of the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proven”,28 and that the Tribunal “is better poised, after the parties’ presentation of the evidence, to evaluate which of the charges may be retained.”29 To justify the relevance of the practice, an ICTY Trial Chamber further emphasized that “the crimes over which [it] has jurisdiction are frequently broad and yet to be clarified in the jurisprudence.”30 In Delalic, the Appeals Chamber also adopted a large approach on the practice concluding that cumulative charges should be accepted because “(i) before the presentation of all the evidence, it was impossible for the Prosecutor to evaluate and determine which of the charges will be proved and (ii) the Chamber was better positioned to evaluate the sufficiency of the evidence and decide which charges would be retained.”31 The ad hoc tribunals approaches became the reference test of the cumulative charges under international criminal law and was echoed by various decisions of other hybrid courts such as the Special Court for Sierra Leone (SCSL or Special Court) and the Extraordinary Chambers in the Courts of Cambodia (ECCC).32

26 Prosecutor v. Musema, Case No. ICTR-96-13-T ¶ 297 (Jan. 27, 2000). 27 Prosecutor v. Delialic et al., Case No. IT-96-21-A, Appeals Judgment (Feb. 20, 2001). 28 Id. at ¶ 400. 29 Id. 30 Prosecutor v. Naletilic and Martinovic, Case No. IT-98-34-PT, “Decision on Vinko Martinovic’s Objection to the Amended Indictment and Mladen Naletilic’s Preliminary motion to the Amended Indictment,” (Feb. 14, 2001). 31 Prosecutor v. Delalic et al., Case No. IT-96-21-A, Appeals Judgment, ¶ 400 (Feb. 20, 2011), Separate and Dissenting Opinion of Judges Hunt and Bennouna, ¶ 12. 32 See for instance, amongst others, Prosecutor v. Brima, SCSL Case No. 2004-16-A, Appeals Judgment, ¶ 212 (Feb. 22 2008); Prosecutor v. Kaing Guek Eav, ECCC Case No. 001/18-07- 2007-ECCC/OCIJ, Decision on Appeal Against Closing Order Indicting Kaing Guek Eav alias “Duch” ¶ 85. 208 Majola

Following the ad hoc tribunals’ case law, SCSL Appeals Chamber declared that “cumulative charging is necessary because prior to presentation of all the evidence, it is not possible to establish to a certainty which of the charges brought against an accused will be proven, if any.”33 According to the Special Court, the practice of cumulative charging serves to describe the full culpability of a particular accused, or to provide a full picture of his criminal conduct.34 Like the other international courts and tribunals, the Special Tribunal for Lebanon (STL or Special Tribunal) Statute does not contain any provision that addresses the issue of cumulative charging, but it has nonetheless dealt with it. Indeed, the Special Tribunal was asked to determine under what circumstances the same act could be defined in several different ways, and, if any, whether the classifications could be used cumulatively or alternatively. The STL’s response holds great importance in international criminal law since, particularly in this case, “the question was raised in relation to the offenses of terrorist conspiracy, terrorist acts, and intentional homicide with premeditation or attempted intentional homicide with premeditation.”35 In addressing the issue, the STL replied that cumulative charging should be carefully allowed only when separate elements of the charged offenses make these offenses “truly” distinct.36 The Special Tribunal stressed that under Lebanese law, for instance, the crimes of terrorist conspiracy, terrorism, and intentional homicide do not entail incompatible legal characterizations. As long as the purpose of criminalizing such conduct is the protection of substantially different values – preventing extremely dangerous but inchoate offences, widespread fear in the population, and death, respectively – it is appropriate to charge those crimes cumulatively rather than alternatively.37 The Special Tribunal emphasized, however, that the practice of cumulative charging should “be guided by the goal of providing the greatest clarity possible to the defense.”38

33 Prosecutor v. Brima et al., Case No. SCSL 2004-16, Appeals Judgment, ¶ 212 (Feb. 22, 2008). 34 Id. at ¶ 215. 35 Kelsey Green & Michael Novak, “STL in the Year 2011: Atrocity Crime Litigation Review for the Year 2011,” Northwestern Journal of International Human Rights, 275–76 (2013). 36 Prosecutor v. Ayyash et al., STL-11-01/I, Appeals Chamber Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, ¶¶ 270–271, 280, 290 (Feb. 16, 2011). 37 Kelsey Green & Michael Novak, “STL in the Year 2011: Atrocity Crime Litigation Review for the Year 2011,” Northwestern Journal of International Human Rights, 275–76 (2013). 38 Prosecutor v. Ayyash et al., STL-11-01/I, Appeals Chamber Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, ¶¶ 248–49 (Feb. 16, 2011). Cumulative Charges under International Criminal Law 209

2.2 Narrow Approach In some cases, international criminal tribunals have adopted a narrow approach in dealing with the issue of cumulative charges. For instance, an ICTR Trial Chamber once held that “cumulative charges were legally improper and untenable.”39 Following the same reasoning, the ICTR also declared that “it is not justifiable to convict an accused of two offences in relation to the same set of facts where (a) one offence is a lesser included offence of the other, [. . .] or (b) where one offence charges accomplice liability and the other offence charges liability as a principal.”40 In some cases, the ICTY has also adopted a narrow approach to cumulative charging. According to an ICTY Trial Chamber, cumulative charges should be narrowed when seeking to charge individuals on the basis of the same facts.41 The ICTY considered that, if in a single act or omission the accused has perpetrated two offences under two distinct provisions of the Statute, and the offences contain elements uniquely required by each provision, then the accused should be found guilty on two separate counts; but if in that single act or omission the accused has not perpetrated two offences under two distinct provisions, but rather only one offence, it should be decided an appropriate conviction for that offence only.42 The ECCC echoed a restrictive admissibility of cumulative charges. In practice, the ECCC allowed the prosecution to bring cumulative charges as long as “each charge contains a materially distinct element, and in spite of the fact that the same underlying evidence is used to support each charge.”43 By putting such limitations, the ECCC has adopted a restrictive and narrow approach to cumulative charging, as experimented in the Duch case. At the trial stage, the ECCC had held that “the same acts could not be used for more than one charge”.44 The ECCC Trial Chamber has recalled that whether the same conduct violates two distinct statutory provisions is a question of law and the legal elements of each crime may be the subject of a cumulative conviction rather than the underlying conduct of the Accused.45 Following this reasoning, the ECCC Trial Chamber subsumed different acts, which fell under the qualification of crimes against humanity, and convicted the accused for only

39 Prosecutor v. Kayishema et al., ICTR-95-1-T, Trial Judgment, ¶¶ 645, 646, 650 (May 21, 1999). 40 Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Trial Judgment, ¶ 468 (Sept. 2, 1998). 41 Prosecutor v. Kupreskic, Case No. IT-95-16, Trial Judgment, ¶ 727(b) (Jan. 20, 2000). 42 Id. at ¶¶ 718–719. 43 Goran Sluiter, International Criminal Procedure: Principles and Rules 395 (2012). 44 Goran Sluiter, International Criminal Procedure: Principles and Rules 395 (2012; citing Co-Prosecutor v. Kaing Guek Eav, OCIJ, ECCC, 8 August 2008, ¶ 55). 45 Co-Prosecutors v. Kaing Guek Eav “Duch”, Case 001, Trial Judgement, ¶ 561 (Jul. 26, 2010). 210 Majola

persecution,46 deciding that the same acts could not be used to satisfy more than one charge.47 This holding has been overturned by the ECCC Appeals Chamber, though the appeal decision did not extend the scope of applicability of cumulative charging before the Extraordinary Chambers. Indeed, the Appeals Chamber’s overturning of the decision was based on the fact that the domestic crimes and international crimes contained distinct material elements and then “the domestic crimes of premeditated murder and torture were not subsumed by the international crimes.”48 Addressing the issue of cumulative charges in its first decision, the International Criminal Court (ICC) adopted a narrow approach. The ICC recalled that cumulative charging is allowed and “practiced by both national courts and international tribunals”, but, it determined that “such an approach is unwarranted at the ICC because, in the Chamber’s opinion, in this context it is for the Chambers to determine the most appropriate legal characterization of facts presented by the Prosecutor.”49 In the Bemba case, the Prosecutor’s indictment cumulatively charged the accused for rape and torture both as crimes against humanity. In its decision on the confirmation of charges, the ICC Pre-Trial Chamber found that “there was sufficient evidence to establish substantial grounds to believe that acts of rape constituting crimes against humanity were committed, [but] it dismissed the charge of torture as a crime against humanity to the extent that charge was based on the same acts of rape, based on a finding that the torture charge was inappropriately cumulative.”50 This interpretation is restrictive regarding the elements of crimes defined by the ICC Statute. Indeed, the definition of the crime against humanity of rape requires that the “perpetrator invaded the body of a person by conduct resulting in penetration (. . .)” and that the “invasion was committed by force, or by threat of force or coercion”;51 and the definition of the crime against of humanity of torture requires that the “perpetrator inflicted severe physical or mental pain or suffering upon one or more persons

46 Co-Prosecutors v. Kaing Guek Eav “Duch”, Case 001, Trial Judgement, ¶¶ 567–68 (Jul 26, 2010) (“Persecution as a crime against humanity subsuming the crimes against humanity of extermination (encompassing murder), enslavement, imprisonment, torture (including one instance of rape), and other inhumane acts”). 47 Co-Prosecutors v. Kaing Guek Eav “Duch”, Case 001, Trial Judgement, ¶ 55 (Jul. 26, 2010). 48 Co-Prosecutors v. Kaing Guek Eav “Duch”, Case no. 001, Appeal Judgment, ¶ 336 (Feb. 2, 2012). 49 The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, Pre-Trial Chamber II, ¶ 200 (Jun. 15, 2009). 50 Id. at 204–06. 51 Id. at 207–09. Cumulative Charges under International Criminal Law 211

(. . .) in the custody or under control of the perpetrator.”52 These definitions show that there are clear and distinct material elements between the crime against humanity of torture and the crime against humanity of rape, but the Pre-Trial-Chamber preferred a restrictive definition of the material elements. The ICC also declared that “the prosecutorial practice of cumulative charging is detrimental to the rights of the defense since it places an undue burden on the defense”53 and “as a matter of fairness and expeditiousness of the proceedings, only distinct crimes may justify a cumulative charging approach and, ultimately, be confirmed as charges, [and] this is only possible if each statutory provision allegedly breached in relation to one and the same conduct requires at least one additional material element not contained in the other.”54 Practically, it should be outlined that “before the ICC, there is no need for the Prosecutor to adopt a cumulative charging approach and present all possible characterizations in order to ensure that at least one will be retained by the Chamber”55 because the ICC leaves the responsibility of legally defining the allegations made against the accused to the judges.

3 Conditions of Admission of Cumulative Charges

International criminal tribunals and courts have established three alternative conditions of admission of cumulative charges. In the Akayesu judgment, the ICTR held that cumulative charges are allowed:

[. . .] (1) where the offences have different elements; or (2) where the provisions creating the offences protect different interests; or (3) where it is necessary to record a conviction for both offences in order fully to describe what the accused did.56

52 Id. 53 The Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, Pre-Trial Chamber II, ¶ 202 (Jun. 15, 2009). 54 Id. 55 Id. at ¶ 203. 56 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Judgment, ¶ 468 (Sept. 2, 1998). See also Prosecutor v. Kayishema et al., Case No. ICTR-95-1-T, Trial Judgment, ¶ 627 (May 21, 1999). 212 Majola

3.1 The Material Element of Cumulative Charges According to the case law of the different international criminal bodies, cumulative charges have distinct material and legal elements. The evidence of a distinct material element of each crime is an important factor that will lead the judge to grant the cumulative charges brought by the prosecutor on the basis of the same act. To charge different crimes cumulatively on the basis of the same single act, the prosecution must prove that each crime has a distinct material element from the same act. In other words, the prosecution has to establish that the same act constitutes a distinct material element of each of the crimes they intend to charge. For instance, the IMTN and IMTFE allowed cumulative charges for the same set of conducts, as long as they found that there was a materially distinct element in each of the relevant crimes. The ICTY defined the distinct material element by stating that “an element is materially distinct from another if it requires proof of a fact not required by the other.”57 The SCSL considers that there are distinct material elements when the same criminal conduct can be used to convict an accused of different crimes provided in its Statute.58 For instance, the crime against humanity of rape and the crime against humanity of sexual slavery can be charged cumulatively even though they are based on the same act because sexual slavery involves multiples rapes. The SCSL considered that “the offence of rape requires sexual penetration, whereas sexual slavery requires the exercise of powers attaching to the right of ownership and acts of sexual nature.”59

3.2 The Requirement of a Distinct Interest: The Legal Element of Cumulative Charges The second condition of cumulative charges is of a legal nature especially “when the provisions creating the offences protect different interests.”60 International criminal courts and tribunals “have each upheld the practice of entering multiple convictions [and charges] against an accused based on the same underlying conduct, so long as each of the relevant crimes contains a materially distinct legal element.”61 The most important [. . .] in determining whether cumulative charges are permissible in a given case, is the legal

57 Prosecutor v. Delalic et al., Case No. IT-96-21-A, Appeals Judgment, ¶ 412. 58 Prosecutor v. Taylor, Case No. SCSL-03-01-T, Trial Judgment, ¶¶ 6987–88 (May 18, 2012). 59 Id. at ¶ 6989. 60 Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Trial Judgment, ¶ 468 (Sept. 2, 1998). 61 War Crimes Research Office, The Practice of Cumulative Charging at the International Criminal Court 2 (2010). Cumulative Charges under International Criminal Law 213 elements of each offense, rather than the underlying acts.62 This is why it is tenable, for example, to charge or convict an accused of both genocide and extermination as a crime against humanity based on the same underlying conduct because each crime has a different legal characterization. For instance, in Kunarac et al., the accused were charged with rape as a war crime and as a crime against humanity. The ICTY concluded that it is possible to convict for the same conduct under Articles 3 and 5 of the Statute because war crimes and crimes against humanity contain distinct elements.63 To the Trial Chamber, the distinct element of Article 5 of the statute against Article 3 is the requirement of a widespread or systematic attack directed against a civilian population and consequently, convictions for rape under both articles were possible. Similarly, in Kupreskic et al., the ICTY stated that “the Prosecutor may be justified in bringing cumulative charges when the articles of the Statute referred to are designed to protect different values and when each article requires proof of a legal element not required by the others.”64 When the material or legal elements are different, the judge may refuse to accept the cumulative charges brought by the prosecutor. In Kayishema and Ruzindana, the Trial Chamber considered that all the elements and evidence that the prosecutor used to demonstrate genocide, extermination and murder were the same and protected the same social interests, and [the Trial Chamber] decided that instead of charging cumulatively, the Prosecutor should have charged the accused in the alternative.65

4 Merits of Allowing Cumulative Charges in International Criminal Law

The merits of cumulative charging have been repeatedly pointed out by the international criminal bodies. Cumulative charging is regarded as a crucial tool in prosecuting and convicting the worst international criminals since the crimes they commit “have the potential to overlap in certain factual

62 War Crimes Research Office, The Practice of Cumulative Charging at the International Criminal Court 2 (2010). 63 Prosecutor v. Kunarac et al., Case No. IT-96-23-T, Trial Judgment (Feb. 22, 2001). 64 The Prosecutor v. Zoran Kupreskic et al., “Decision on Defence Challenges to Form of the Indictment”, Case No. IT-95-16-PT, (May 15, 1998). 65 Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Trial Judgment, ¶¶ 645, 646, 650 (May 21, 1999). 214 Majola circumstances”66 and “are frequently broad and yet to be clarified in the jurisprudence.”67 Allowing the prosecution to put cumulative charges in the indictment is important since it [the prosecution] cannot know all the facts before the conviction. Practitioners recognize that “the primary reason that international criminal bodies permit cumulative charging is that it is impossible or very difficult for the prosecution to determine a priori, before the presentation of all the evidence, which of the charges brought against the accused will be proven.”68 According to the ICTY, “cumulative charging is warranted because, prior to trial, the prosecutor may not be able to determine with certainty which charges will ultimately be proven [but also because the Tribunal] is in a better position to determine the appropriate charge after the presentation of all of the evidence.”69 The ICTY Trial Chamber stated that the way in which the charges are to be brought by the prosecution is neither entrenched by the Statute nor in the Rules of Procedure and Evidence but it is rather a process that should be guided by two principles: the respect and safeguard of the rights of the accused; and a granting of full power to the prosecutor, in order to ensure that she is able to carry out her duties effectively.70 The prosecutor’s role in ensuring the conviction and punishment of international wrongdoers is, thus, important for the international criminal tribunals. In Kunarac et al., the ICTY opined that cumulative convictions serve to “describe the full culpability of a particular accused or provide a complete picture of his criminal conduct.”71 In Akayesu, the ICTR recalled that cumulative charges are important for different interests such as the protection of a certain group from extermination and of the civilian population from persecution.72 It is, thus, legitimate that when all the evidence

66 Attila Bogdan, “Cumulative Charges, Convictions and Sentencing at the ad hoc International Tribunals for the former Yugoslavia and Rwanda,” Melbourne Journal of Int’l L., (2002). See also M. Cherif Bassiouni, International Criminal Law (1999). 67 Prosecutor v. Delalić, et al., Case No. IT-96-21, Appeals Judgement, ¶ 400; See Prosecutor v. Delalić, et al., Appeals Chamber Judgement, Separate and Dissenting Opinion of Judges D. Hunt and M. Bennouna, ¶ 12. 68 Guénaël Mettraux, “Crimes Against Humanity In The Jurisprudence Of The International Criminal Tribunals For The Former Yugoslavia And For Rwanda,” 43 Harv. Int’l L.J. 237, n. 348 (2002). 69 Prosecutor v. Delalić et al., Case No. IT-96-21, Appeals Judgement, ¶ 400. 70 Prosecutor v. Zoran Kupreskic et al., Case No. IT-95-16-T, Trial Chamber Judgment, ¶ 724 (Jan. 14, 2000). 71 Prosecutor v. Kunarac et al., Case No. IT-96-23-A, Appeals Judgment, ¶ 169 (June 12, 2002). 72 Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Trial Judgment, ¶¶ 468–69 (Sept. 2, 1998). Cumulative Charges under International Criminal Law 215 proves that there is another charge on the same act than the one retained by the judge, denying cumulative charging would result in a dismissal of a criminal conduct. Judge Mohammed Shahabudden observed in a dissenting opinion in the case of Prosecutor v. Jelisic, that “to convict of one offence only is to leave unnoticed the injury to the other interest of international society and to fail to describe the true extent of the criminal conduct of the accused.”73 In another dissenting opinion in Kayishema and Ruzindana, Judge Tafazzal H. Khan stated that “[. . .] where the culpable conduct was part of a widespread and systematic attack specifically against civilians, to record a conviction for genocide alone does not reflect the totality of the accused’s culpable conduct. Similarly, if the Majority had chosen to convict for extermination alone instead of genocide, the verdict would still fail to adequately capture the totality of the accused’s conduct.”74

5 Demerits and Remaining Issues of the Practice of Cumulative Charging

Since its introduction in international criminal law, the practice of cumulative charging and convictions has been severely criticized. Indeed, cumulative charging is seen by many as a denial of the fundamental rights of an accused, amongst others, the right to prepare his or her defense, the right to equality of arms, and the right to a fair trial. The admittance of cumulative charging before the international criminal bodies “may also complicate the task, responsibility and ability of the Tribunal[s] to guarantee a fair and expeditious process.”75 Defense lawyers criticize the power given to the prosecutor to charge cumulatively different crimes for the same act, considering it as unfair. Some point out that the issue raises several human rights violations and the “increasing

73 The Prosecutor v. Jelisic, Case No. IT-95-10-T, Appeals Judgment, Partial Dissenting Opinion of Judge Shahabudden, ¶ 41 (Dec. 14, 1999). 74 Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Trial Judgment (May 21, 1999), “Separate and Dissenting Opinion of Judge Tafazzal Hossain Khan Regarding the Verdicts Under the Charges of Crimes Against Humanity/Murder and Crimes Against Humanity/Extermination”, para. 33. 75 Prosecutor v. Ayyash et al., Case No. STL-11/I, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging; Appeals Chamber, Submission of the Defense, ¶ 169 (Feb. 16, 2011). 216 Majola awareness of the potentially prejudicial effect of the ‘overloading’ of the indictment with multiple layers of cumulative charges.”76 International criminal tribunals also stated that when dealing with the issue of cumulative charges, “care should also be taken to ensure that any accused is provided with detailed and clear notice of charges, both through the indictment itself and (. . .) the decision.”77 In Kupreskic et al., the ICTY clearly demonstrated that cumulative charging is a process that should be guided by two principles: the respect and safeguard of the rights of the accused; and a granting of full power to the prosecutor, in order to ensure that she is able to carry out her duties effectively.78 This assertion shows that the international criminal bodies recognize that by accepting the practice of cumulative charging, there is a risk of violation of the rights of the accused, in particular the principle of non bis in idem which protects the accused “from repeated prosecution or punishment for the same conduct, irrespective of the prosecuting system.”79 The main risk is that with cumulative charges, an accused might be charged and potentially punished twice for the same acts, even though an ICTY Trial Chamber has acknowledged that “the harm which cumulative charge[s] may cause, i.e. punishment more than once for one criminal act, can be counter- acted at the conviction or sentencing stage.”80 Cumulative charging is also criticized as a heavy burden for the defense. In the decision on confirmation of charges in the Bemba case, the ICC stressed that it intended to make it clear that the prosecutorial practice of cumulative charging is detrimental to the rights of the defense since it places an undue burden on the defense.81 To reduce such burden for the defense, the ICC held

76 Prosecutor v. Ayyash et al., Case No. STL-11/I, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging; Appeals Chamber, Submission of the Defense, ¶ 169 (Feb. 16, 2011). 77 Prosecutor v. Ayyash et al., Case No. STL-11/I, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging; Appeals Chamber, ¶ 271 (Feb. 16, 2011). 78 Prosecutor v. Kupreskic et al., Case No. IT-95-16-T, Trial Chamber Judgment, ¶ 724 (Jan. 14, 2000). 79 Cherif Bassiouni, “Human Rights in the Context of Criminal Justice: Identifying Inter- national Procedural Protections and Equivalent Protections in National Constitutions,” 3 Duke J. Comp. & Int’l Law, 235, 1993. 80 Goran Sluiter, International Criminal Procedure: Principles and Rules 388–89 (2013), (citing Prosecutor v. Naletilic and Martinovic, IT-98-34-T, Trial Judgment). 81 Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, ¶ 201. Cumulative Charges under International Criminal Law 217 that “as a matter of fairness and expeditiousness of the proceedings, only distinct crimes may justify a cumulative charging approach and, ultimately, be confirmed as charges.”82 Some authors also consider that “there is something intrinsically wrong with convicting someone for multiple crimes stemming from the same act, no matter how serious, unless there is some fair reason for doing so”83 and that “the use of cumulative convictions will undermine the credibility of substantive international criminal law because the tangled meshing of all three crimes is prima facie evidence of existing conceptual weaknesses in international crimes.”84 As stressed by scholars, the dark side of the practice of cumulative charging is that it may considerably lengthen the trials85 and this constant length of trials at the ad hoc tribunals is one of the arguments that motivated the decision of the ICC in Bemba. The ICTY has even recognized that “clarifying and narrowing charges at the beginning may help in making the proceedings, which have heretofore lasted months and even years [and] it may aid the defendant in the preparation of his case to know which charges will ultimately be considered to cover the same ‘offence’ for purposes of conviction and sentencing.”86

6 Perspectives of the Practice of Cumulative Charging after the ICC Bemba Case

“Despite the jurisprudential developments in international criminal law in the last 20 years, the legal permissibility of cumulative convictions for international crimes remains in flux.”87 Allowed by the international criminal bodies since the first international criminal trials in Nuremberg and Tokyo, and endorsed by the ad hoc, hybrid and internationalized criminal tribunals and courts, the practice of cumulative charging was significantly diminished by the ICC in the Bemba case, which has raised doubts about the sustainability of the practice under international criminal law. In the Bemba indictment, the

82 Id. at ¶ 202. 83 Erdei Ildiko, “Cumulative Convictions in International Criminal Law: Reconsideration of a Seemingly Settled Issue,” Suffolk Transnational Law Review, 322 (2011). 84 Olaoluwa Olusanya, Double Jeopardy Without Parameters: Re-Characterization in Inter national Criminal Law 6 (2004). 85 William Schabas, “The UN International Criminal Tribunals for The Former Yugoslavia, Rwanda and Sierra Leone,” 368 (2006). 86 Prosecutor v. Krstic, Case No. IT-98-33, Decision on Defense Preliminary Motion on the Form of the Amended Indictment, Count 7–8, ¶ 5 (Jan. 28, 2000). 87 See Ildiko, supra note 83, at 317. 218 Majola prosecutor cumulatively charged Jean-Pierre Bemba with the crime against humanity of rape and the crime against humanity of torture for the same acts of rape. In the decision on confirmation of charges, an ICC Pre-Trial-Chamber decided that the charges brought by the prosecutor were inappropriately cumulative because the same evidence – of the act of rape – was used to satisfy the elements of both crimes – rape and torture.88 This decision is regarded as having mistakenly interpreted the practice of cumulative charging as established by the ad hoc tribunals and other courts; but it has the merit of having brought new development and doubt on the issue. Recently, after having dedicated a whole jurisprudence on the issue of cumulative charging, the ICTR has dismissed the practice in one of its recent decisions. In the Nyiramasuhuko case, the Trial Chamber decided that “it is not appropriate to convict an accused on a particular count for the same conduct under both Article 6(1) and Article 6(3) of the Statute [and] where the conduct of an accused constitutes a violation of both Article 6(1) and Article 6(3), the Chamber will enter a conviction on the basis of Article 6(1) of the Statute alone (. . .).”89 The Trial Chamber dismissed all prosecution’s counts based on cumulative charging, concluding that “when comparing the crimes against humanity of murder and of extermination, (. . .) murder as a crime against humanity does not contain a materially distinct element from extermination as a crime against humanity. Accordingly, where the Chamber has entered a conviction for extermination as a crime against humanity, it will not consider the same underlying conduct as a basis for a conviction for murder as a crime against humanity.”90 One may see this jurisprudence as a consequence of the influence of the ICC Bemba case. The same observation can also be made on the STL’s practice on cumulative charging. In Prosecutor v. Ayyash et al.,91 the STL seemed hesitant when dealing with the issue. In analysing the question of cumulative charging, the Appeals Chamber declared that “we do so with hesitation, however, as we are wary of addressing specific situations before the presentation of facts, which would better inform and clarify our analysis”92

88 Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424; Pre-Trial Chamber II, (June 15, 2009). 89 Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-T, Trial Judgment, ¶ 5652 (June 24, 2011). 90 Id. at ¶¶ 6070–6072. 91 Prosecutor v. Ayyash et al., Case No. STL-11/I, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging; Appeals Chamber, (Feb. 16, 2011). 92 Id. at ¶ 301. Cumulative Charges under International Criminal Law 219

The Chamber also declared that “cumulative charging should only be allowed when separate elements of the charged offences make those offences truly distinct and where the rules envisaging each offence relate to substantially different values” and that the Tribunal “should prefer alternative charging where a conduct would not permit multiple convictions.”93 Even though the STL has admitted the sustainability of the cumulative charges, the use of the adverbs “truly” and “substantially” by the Appeals Chamber shows that the Special Tribunal took into account the ICC position in the Bemba case. However, the ICC’s refusal to allow cumulative charging should not be seen as an authoritative denial of the practice in international criminal law as it was not motivated by only legal arguments. In effect, the Pre-Trial Chamber repeatedly declared that the dismissal of the cumulative charges brought by the Prosecutor was guided by two main reasons: reducing the burden on the defense94, and proceedings considerations, namely fairness and expeditiousness.95 Compared to the long practice and consensus of the ad hoc tribunals on the issue, this ICC decision cannot be considered as indicative of a settled jurisprudence or an established international practice.96 Recent international criminal law practice also showed that the ICC holding in the Bemba case is not yet established as a new guidance of the practice of cumulative charging under international criminal law. In the SCSL Taylor case, a Trial Chamber ruled that it is suitable to charge – and convict – for crimes against humanity of both sexual slavery and rape upon the same act “regardless of whether the sexual slavery involved rape.”97 This decision was confirmed by the Appeals Chamber of the same Court, which held that it “agrees with the Trial Chamber that (. . .) the offences of rape and sexual slavery each require proof of an element not required by the other.”98 It is also early to conclude that the practice of cumulative charging has no future within the ICC since this court is still developing its practice. The severe criticisms against the ICC decision in denying the practice and the recent development of the other international

93 Id. at ¶ 15 of the disposition. 94 Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424; Pre-Trial Chamber II, ¶¶ 201–02 (June 15, 2009). 95 Id. 96 Amicus Curiae brief submitted by the War Crimes Research Office in Prosecutor v. Ayyash et al., STL-11/I, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging; Appeals Chamber, ¶¶ 3, 10–15, 17–18 (Feb. 16, 2011). 97 Prosecutor v. Taylor, Case No. SCSL-03-01-T, Trial Judgment, ¶ 165 (May 18, 2012). 98 Prosecutor v. Taylor, Case No. SCSL-03-01-A, Appeals Judgment, ¶¶ 577–78 ( Sept. 16, 2013). 220 Majola tribunals might influence the view of the ICC when dealing with the issue of cumulative charges in its upcoming decisions.

7 Conclusion

In this chapter it has been shown that the practice of cumulative charging gives the Prosecutor flexibility in presenting multiple charges for the same conduct, even though the underlying elements of the charges may differ. As stated by the Special Court for Sierra Leone, ‘the practice of cumulative charging serves to describe the full culpability of a particular accused or to provide a full picture of his criminal conduct’. In addressing the issue of cumulative charging, the ad hoc tribunals have relied on both the extensive and narrow approach. For example, under the former approach the ICTR has noted that multiple offences may be charged on the basis of the same acts, in order to capture the full extent of the crimes committed by the accused. Under the same approach, the ICTY in the Celebici case noted that cumulative charging is to be allowed in light of the fact that prior to all the evidence, it is not possible to determine with certainty which of the charges brought against an accused will be proven. Under the latter approach, the ECCC allowed the prosecution to bring cumulative charges ‘as long as each charge contains a materially distinct element, and in spite of the fact that the same underlying evidence is used to support each charge’. Despite the fact that the practice of cumulative charging has been relied upon by the ad hoc tribunals, as a crucial tool in prosecuting and convicting the worst international criminals since the crimes they commit may ‘have the potential to overlap in certain factual circumstances’ this reliance has raised some fundamental questions. Indeed, cumulative charging is seen by many as a denial of the fundamental rights of an accused, amongst others, the right to prepare his or her defense, the right to equality of arms, and the right to a fair trial. The admittance of cumulative charging before the international criminal bodies “may also complicate the task, responsibility and ability of the Tribunal[s] to guarantee a fair and expeditious trial process”. It has further been shown that based on these concerns regarding cumulative charging in ad hoc tribunals, the ICC has adopted a rather restrictive approach in the Bemba case by noting that, ‘while cumulative charging is practiced by national courts and international tribunals, such an approach is unwarranted at the ICC because in the Chambers opinion, it is for the Chambers to determine the most appropriate legal characterization of facts presented by the Prosecutor’. The ICC declared that the prosecutorial practice Cumulative Charges under International Criminal Law 221 of cumulative charging is detrimental to the rights of defence since it places an undue burden on the defence. And as a matter of fairness and expeditiousness of the proceedings, only distinct crimes may justify a cumulative charging approach and ultimately be confirmed as charges. While it cannot be definitively stated that the practice of the ad hoc tribunals or the ICC is settled jurisprudence on the practice of cumulative charging under international criminal law, it is evident that the recent development as espoused by the ICC in the Bemba case, is more inclined to balance between the prosecutorial strategy and the rights of the accused to a fair and expeditious trial. It can therefore be argued that how the practice of cumulative charging is approached by the International Criminal Courts and Tribunals especially by the permanent International Criminal Court in the near future will determine the direction and indeed the future of this practice which has for many years provided ample opportunity for the Prosecutors to cumulatively charge the accused and yet the practice is facing increased scrutiny on how it safeguards the interests of the accused and objectives of the tribunals to conduct and achieve a fair and expeditious trial. Chapter 14 Permissibility of Convictions for Genocide and Conspiracy to Commit Genocide in Respect of the Same Events

Roman Boed

1 Introduction

The recent adjudication of whether it is permissible to convict a person for genocide and conspiracy to commit genocide for the same events aptly demonstrates Justice Hassan Bubacar Jallow’s pursuit of justice at the international level. As the Chief Prosecutor of the UN International Criminal Tribunal for Rwanda (ICTR) since 2003, Justice Jallow has led the investigation and prosecution of persons alleged to be responsible for genocide and other serious violations of international humanitarian law during the violence that engulfed Rwanda in 1994. In 2011, the Office of the Prosecutor of the ICTR (“Prosecution”) appealed the decision of an ICTR Trial Chamber to convict Jean-Baptiste Gatete for genocide but not for conspiracy to commit genocide despite finding that the accused person was responsible for both crimes. The Prosecution argued that the Trial Chamber “had a duty to enter convictions for both crimes to fully capture the [accused’s] entire criminal culpability, and to respect the mandate of this Tribunal established for the prosecution of persons responsible for serious international crimes.”1 This chapter will trace the Prosecution’s successful appeal in the Jean- Baptiste Gatete case before the ICTR. To set the appeal in its proper context, the chapter will first provide a brief overview of jurisprudence of the ICTR and the International Criminal Tribunal for the former Yugoslavia (ICTY) relating to cumulative convictions. The chapter will then turn to the Gatete case at the trial level, identifying the reasons for the Trial Chamber’s decision to enter a conviction for genocide but not for conspiracy. Next, the chapter will set out the related submissions of both parties on appeal before presenting the Appeals Chamber’s analysis and resolution of the appeal.

1 The Prosecutor v. Gatete, Case No. ICTR 00-61-A, Brief of Petitioner-Appellant, ¶ 40 (July 18, 2011).

2 Cumulative Convictions

The jurisprudence of the Tribunal permits cumulative convictions (convictions entered under different statutory provisions but based on the same conduct) only if each of the statutory provisions has a materially distinct element not contained in the other.2 This rule was laid down by the Appeals Chamber of the ICTY in the Čelebići case where the Appeals Chamber further explained that “[a]n element is materially distinct from another if it requires proof of a fact not required by the other.”3 In the Musema case, the ICTR Appeals Chamber concluded that this test “reflects general, objective criteria enabling a Chamber to determine when it may enter or affirm multiple convictions based on the same acts” and held it to be applicable in cases before the ICTR.4 Consequently, the ICTR Appeals Chamber has confirmed that convictions for genocide and extermination as a crime against humanity are permissible even when based on the same set of facts.5 This is because the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group is an element of the crime of genocide but not of the crime of extermination. Extermination requires proof that the crime was committed as part of a widespread or systematic attack against a civilian population which is not an element of genocide.6 On the other hand, in Ntabakuze, the Appeals Chamber found error where the Trial Chamber entered cumulative convictions for murder and extermination as crimes against humanity because murder does not contain an element that is materially distinct from extermination, failing the recipro- cal specialty test.7 While the Čelebići case and its progeny at both the ICTR and

2 See, e.g., Gatete, Case No. ICTR 00-61-A, Judgment of the Appeals Chamber, ¶ 259 (Oct. 9, 2012), http://www.unictr.org/Portals/0/Case/English/Gatete/judgement/121009%20-%20Appeal %20Judgement.pdf. 3 Prosecutor v. Delalić, Mucič, Delić & Landžo, Case No. IT-96-21-A, Judgment of the Appeals Chamber, ¶ 412, (Int’l Crim. Trib. For the Former Yugoslavia Feb. 20, 2001), http://www.icty .org/x/cases/mucic/tjug/en/981116_judg_en.pdf. (“Čelebići”). 4 The Prosecutor v. Musema, Case No. ICTR 96-13-A, Judgement of the Appeals Chamber, ¶ 363 (Nov. 6, 2001), http://www.unictr.org/Portals/0/Case%5CEnglish%5CMusema%5Cd ecisions%5C011116-apl-judg.pdf. See generally, Roman Boed, “Current Developments in the Jurisprudence of the International Criminal Tribunal for Rwanda,” 3 Int’l Crim. L. Rev. 169, 169–81 (2003). 5 Musema, Case No. ICTR 96-13-A, Judgment of the Appeals Chamber at ¶ 370. 6 Id. at ¶ 366. 7 Ntabakuze v. The Prosecutor, Case No. ICTR 98-41A-A, Judgment of the Appeals Chamber, ¶ 261 (May 8, 2012), http://www.unictr.org/Portals/0/Case%5CEnglish%5CNtabakuze%5C Judgement%5C120508.pdf. 224 Boed

ICTY have determined whether cumulative convictions can be entered for a range of crime combinations,8 the Appeals Chamber of neither Tribunal has been called upon to adjudicate whether an accused can be convicted of both genocide and conspiracy to commit genocide prior to Gatete.9

3 The Gatete Case

3.1 Trial Level In Gatete, the Prosecution brought charges of genocide, complicity in genocide (in the alternative), and conspiracy to commit genocide, as well as extermination, murder, and rape as crimes against humanity against Jean-Baptiste

8 See, e.g., Bagosora & Nsengiyumva v. The Prosecutor, Case No. ICTR 98-41-A, Judgment of the Appeals Chamber, ¶ 414 (Dec. 14, 2011), http://www.unictr.org/Portals/0/Case%5CEnglis h%5CBagosora%5CJudgement%5C111214-%20Appeals%20Judgement.pdf (cumulative convictions for murder and persecution as crimes against humanity permissible); id. at ¶ 415 (cumulative convictions for murder as a crime against humanity and violence to life as a serious violation of article 3 common to the Geneva Conventions and of Additional Protocol II permissible); id. at ¶ 416 (cumulative convictions for extermination and murder as crimes against humanity not permissible); Nahimana, Barayagwiza & Ngeze v. The Prosecutor, Case No. ICTR 99-52-A, Judgment of the Appeals Chamber, ¶ 1026 (Nov. 28, 2007), http://www .unictr.org/Portals/0/Case/English/Nahimana/decisions/071128_judgement.pdf (cumulative convictions for extermination and persecution as crimes against humanity permissible); id. at ¶ 1029 (cumulative convictions for genocide and extermination as a crime against humanity permissible); id. at ¶ 1032 (cumulative convictions for genocide and persecution as a crime against humanity permissible); id. at ¶ 1035 (cumulative convictions for direct and public incitement to commit genocide and persecution as a crime against humanity permissible); Simba v. The Prosecutor, Case No. ICTR 01-76-A, Judgment of the Appeals Chamber, ¶ 277 (Nov. 27, 2007), http://www1.umn.edu/humanrts/instree/ICTR/SIMBA_ICTR-01-76/SIMBA_ ICTR-01-76-A.pdf (cumulative convictions for genocide and extermination as a crime against humanity permissible); The Prosecutor v. Ntagerura, Bagambiki & Imanishimwe, Case No. ICTR 99-46-A, Judgment of the Appeals Chamber, ¶ 427 (July 7, 2006), https://www1.umn .edu/humanrts/instree/ICTR/IMANISHIMWE_ICTR-97-36/IMANISHIMWE_ICTR-99-46-A .pdf (cumulative convictions for murder and torture as crimes against humanity and murder and cruel treatment as serious violations of article 3 common to the Geneva Conventions and of Additional Protocol II permissible); The Prosecutor v. Ntakirutimana and Ntakirutimana, Case No. ICTR 96-10-A & ICTR-96-17-A, Judgment of the Appeals Chamber, ¶ 542 (Dec. 13, 2004), http://www.unictr.org/Portals/0/Case%5CEnglish%5CNtakirutimanaE%5Cdecision2 %5C041213_appeal_judgement.pdf (cumulative convictions for genocide and extermination as a crime against humanity permissible but cumulative convictions for extermination and murder as crimes against humanity not permissible). 9 Case No. ICTR 00-61-A, Judgment of the Appeals Chamber at ¶ 259. permissibility of convictions for genocide 225

Gatete, a former bourgmestre of a commune in Rwanda and a director within the Rwandan Ministry of Women and Family Affairs.10 Upon hearing the evidence, the Trial Chamber found, inter alia, that Gatete was responsible for killings in Rwankuba sector and at Kiziguro and Mukarange parishes. The Trial Chamber determined that on the morning of April 7, 1994, Gatete addressed a group of militiamen, local policemen, and local officials in the courtyard of Rwankuba sector office.11 The Trial Chamber found that Gatete issued instructions to the militiamen to start killing people of the minority Tutsi ethnicity, telling them to “work relentlessly”12 and to “sensitise” the population to the killings.13 The Trial Chamber also found that the militiamen who received Gatete’s instructions participated in attacks on Tutsis the same day, resulting in the death of about 25 to 30 Tutsis.14 The Trial Chamber concluded that the gathering of the militiamen, policemen, and local officials, Gatete’s arrival and address, and the subsequent attacks on Tutsis could only be accomplished with “considerable organisation.”15 Indeed, the Trial Chamber found that Gatete entered into an agreement with two local officials to kill Tutsis in Rwankuba sector, and that he was involved in the prior planning and coordination of the attack on the Tutsis.16 On this basis, the Trial Chamber held that Gatete was responsible for planning, instigating, ordering, committing through joint criminal enterprise, and aiding and abetting the killing of Tutsis in Rwankuba sector on April 7, 1994.17 The Trial Chamber further held that Gatete conspired to commit genocide by entering into an agreement to kill Tutsis in Rwankuba sector.18 Next, the Trial Chamber found that following the killing of Rwandan President Juvenal Habyarimana on April 6, 1994, hundreds and possibly thousands of Tutsis fled attacks in their local areas and sought refuge at the Kiziguro parish.19 On April 8 to 10, 1994, Gatete visited the parish and spoke with the priests and gendarmes guarding the parish.20 Gatete returned to the parish

10 See Gatete, Case No. ICTR 00-61-T, Judgment and Sentence of the Trial Chamber, ¶ 1 (Mar. 31 2011), http://www.unictr.org/Portals/0/Case/English/Gatete/judgement/110331.pdf. 11 Id. at ¶ 585. 12 Id. 13 Id. 14 Id. 15 Id. 16 Id. at ¶¶ 587–88, 592, 617–18. 17 Id. at ¶ 594. 18 Id. at ¶ 619. 19 Id. at ¶ 595. 20 Id. 226 Boed on April 11, 1994 with a local official, a militia leader, and soldiers.21 The Trial Chamber found that, while at the parish, Gatete gave express instructions to the militiamen to kill the Tutsis gathered there.22 The militiamen subsequently attacked the Tutsis while soldiers surrounded them so that they could not escape.23 The Trial Chamber determined that hundreds, and possibly thousands, of assailants participated in this extensive daylong assault, resulting in the killing of hundreds, and possibly thousands, of Tutsis.24 The Trial Chamber concluded that the massacre was a highly organized operation, which required prior planning and coordination. It found that Gatete was among those who devised the plan, and that he coordinated his actions with the other participants of this criminal enterprise.25 Therefore, the Trial Chamber held that Gatete was responsible for the killing of the Tutsis at Kiziguro parish through his participation in a joint criminal enterprise.26 Additionally, the Trial Chamber found that the evidence also supported a finding that Gatete was responsible for planning, instigating, ordering, and aiding and abetting the killing.27 The Trial Chamber also determined that the massacre could not have been implemented without a prior agreement, and held that Gatete and the other leaders and assailants had entered into an agreement to kill the Tutsis at the parish and thus entered into a conspiracy to commit genocide.28 Like with Kiziguro parish, the Trial Chamber found that at least a thousand people, mostly of Tutsi ethnicity, sought refuge at Mukarange parish following President Habyarimana’s death.29 Gatete arrived on a field near the parish with local officials and gendarmes in a vehicle carrying guns and grenades on April 12, 1994.30 These weapons were distributed to assailants and, the Trial Chamber found, Gatete directed them to attack the Tutsis at the parish.31 The Trial Chamber determined that the subsequent attack resulted in the death of hundreds of Tutsis at Mukarange parish.32

21 Id. 22 Id. 23 Id. 24 Id. at ¶¶ 595, 597. 25 Id. at ¶¶ 597–98. 26 Id. at ¶ 601. 27 Id. 28 Id. at ¶¶ 598, 623–25. 29 Id. at ¶ 602. 30 Id. 31 Id. 32 Id. permissibility of convictions for genocide 227

Similar to the atrocities committed at Kiziguro parish, the Trial Chamber determined that based on these findings, the killing of Tutsis at Mukarange parish was undertaken as part of a joint criminal enterprise to which Gatete was a party.33 The Trial Chamber found that the massacre demonstrated a high level of organization, as it involved the coordinated efforts of Gatete, local officials, gendarmes, and militiamen, which evinced prior planning.34 The Trial Chamber reasoned that such level of planning and coordination could not have been achieved without a prior agreement, and determined that, by the day of the assault on Mukarange parish, Gatete and the local officials, gendarmes, and militiamen had entered into an agreement to kill Tutsis at the parish.35 Therefore, the Trial Chamber held that Gatete was responsible for the killings at Mukarange parish through his participation in a joint criminal enterprise, as well as by planning, instigating, ordering, and aiding and abetting.36 The Trial Chamber also found that Gatete had entered into a conspiracy to commit genocide.37 Having determined that Gatete’s responsibility with respect to the killings in Rwankuba sector and at Kiziguro and Mukarange parishes fell, inter alia, under the statutory provisions on genocide and conspiracy to commit genocide, the Trial Chamber turned to whether it could enter cumulative convictions.38 Recalling that cumulative convictions are only permissible where each crime has a materially distinct element not contained in the other, the Trial Chamber found that the actus reus of genocide and conspiracy to commit genocide is materially distinct.39 While the crime of genocide requires the commission of one of the acts enumerated in the Statute of the Tribunal, namely killing members of a protected group, causing serious bodily or mental harm to members of the group, deliberately inflicting conditions of life calculated to bring about the physical destruction of the group in whole or in part, imposing measures intended to prevent childbirths within the group, or forcibly transferring children of the group to another group, conspiracy to commit genocide only requires the act of entering into an agreement to commit genocide.40 The Trial Chamber therefore concluded that the acts or omissions upon which the two

33 Id. at ¶¶ 608, 626. 34 Id. at ¶¶ 604–05. 35 Id. at ¶¶ 628–29. 36 Id. at ¶ 608. 37 Id. at ¶ 629. 38 Id. at ¶ 653. 39 Id. at ¶ 654. 40 Id. 228 Boed crimes are based are distinct, which would appear to allow convictions for both genocide and conspiracy to commit genocide.41 However, the Trial Chamber recalled that ICTR and ICTY jurisprudence on this issue is “equivocal.”42 In view of this, the Trial Chamber proceeded to analyze relevant trial level jurisprudence. It observed that in the ICTR case of Musema the Trial Chamber decided that convictions could not be entered for both genocide and conspiracy to commit genocide on the basis of the same facts, adopting a definition of conspiracy favouring the accused.43 On the other hand, the Trial Chamber noted the ICTR cases of Kambanda and Niyitegeka in which the accused were found guilty of both crimes on the basis of the same facts.44 Finally, it turned to the Popović case from the ICTY. The Trial Chamber highlighted that the Popović Trial Judgement expressed concern with fairness to the accused and noted that the purpose of criminalizing conspiracy, which is an inchoate offence, “is to prevent the commission of the substantive offence.”45 However, the Trial Chamber noted, once genocide is committed, “the justification for punishing the prior conspiracy is less compelling.”46 Considering that, as in Popović, in the present case the findings for both genocide and conspiracy to commit genocide were based on the accused’s participation in a joint criminal enterprise, the Gatete Trial Chamber decided to follow Popović.47 It held that since it inferred from the evidence establishing that Gatete participated in a joint criminal enterprise that he also entered into an agreement to commit genocide, and since entering a conviction for genocide but not also for conspiracy would not lessen Gatete’s criminal culpability, the Trial Chamber decided to enter a conviction for genocide only.48 The Trial Chamber pronounced its judgement on March 29, 2011, sentencing Gatete to life imprisonment.49

41 Id. at ¶¶ 654–55. 42 Id. at ¶ 655. 43 Id. at ¶ 656. 44 Id. 45 Id. at ¶ 659. 46 Id. 47 Id. at ¶¶ 660–61. 48 Id. at ¶¶ 661–62. The Trial Chamber also convicted Gatete of extermination as a crime against humanity with respect to the same events. See id. at ¶ 664. Specifically, the Trial Chamber found Gatete guilty of genocide and extermination as a crime against humanity. It found him not guilty of rape as a crime against humanity and it dismissed the charges of conspiracy to commit genocide and murder as a crime against humanity on the basis of cumulative convictions. The Trial Chamber also dismissed the charge of complicity in genocide, which was pleaded in the alternative to the charge of genocide. See id. at ¶ 668. 49 Id. at ¶ 683. The Trial Judgement was issued in writing on March 31, 2011. permissibility of convictions for genocide 229

3.2 Appellate Level 3.2.1 Parties’ Submissions 3.2.1.1 Prosecution’s Appeal The Prosecution filed a notice of appeal, challenging the Trial Judgement with respect to a single issue.50 The Prosecution submitted that the Trial Chamber erred in law when it failed to convict Gatete of conspiracy to commit genocide.51 Its full argument in support of this contention was developed, in three parts, in the appeal brief and during the Prosecution’s submissions at the hearing of the appeal.52 The Prosecution argued that the Trial Chamber erred by: (i) failing to apply the applicable standard on cumulative convictions; (ii) engaging in an unwarranted exercise of discretion and erroneous application of the standard; and (iii) failing to enter separate convictions for both genocide and conspiracy to commit genocide, even if the underlying conduct was not the same.53 First, the Prosecution argued that a proper application of the standard on cumulative convictions would have required the Trial Chamber to enter convictions for both genocide and conspiracy to commit genocide.54 The Prosecution agreed with the Trial Chamber’s finding that both crimes possess materially distinct elements from each other, but took issue with the Trial Chamber’s conclusion that the conduct underlying each crime is distinct.55 The Prosecution argued that the same acts of Gatete constituted genocide and conspiracy to commit genocide.56 In particular, the Prosecution contended that to find Gatete responsible for genocide at the Rwankuba sector office, the Trial Chamber relied on his presence during the killings with other officials, the arrival of the Interahamwe militiamen, Gatete’s instructions to kill Tutsis, and the resulting killings.57 The Prosecution argued that this same conduct demonstrated a prior agreement and was thus a basis for a finding of conspiracy.58 Similarly, the same conduct surrounding the Kiziguro parish events constituted the basis for the findings of both genocide and conspiracy with respect to the April 11, 1994 massacre.59

50 Gatete, Case No. ICTR 00-61-A, Notice of Appeal of Petitioner-Appellant (May 3, 2011). 51 Id. at ¶ 3. 52 See Gatete, Case No. ICTR 00-61-A, Brief of Petitioner-Appellant (July 18, 2011); Gatete, Case No. ICTR 00-61-A, Transcript (May 7, 2012). 53 Gatete, Case No. ICTR 00-61-A, Brief of Petitioner-Appellant, ¶ 15 (July 18, 2011). 54 Id. at ¶ 26. 55 Id. 56 Id. at ¶ 27. 57 Id. at ¶ 23. 58 Id. 59 Id. at ¶ 24. 230 Boed

The Prosecution pointed to Gatete’s prior visits to the parish, his arrival there on the day of the massacre with soldiers and various authorities, his presence during the separation of Hutus and Tutsis, his instructions to kill Tutsis, the resulting killings, and his presence during them.60 The Prosecution submitted that the Trial Chamber considered that these findings of Gatete’s conduct also showed the existence of a prior agreement and, therefore, of a conspiracy.61 Regarding the massacre at Mukarange parish, the Prosecution similarly argued that Gatete’s arrival with other officials, his provision of weapons and express instructions to kill Tutsis, and his presence during the operation both underpinned his genocide conviction and, as the Trial Chamber found, demonstrated the existence of a prior agreement to kill Tutsis at the location, amounting to conspiracy to commit genocide.62 In the Prosecution’s view, because Gatete’s acts constituting the two crimes were the same, and because the elements of genocide and conspiracy to commit genocide are distinct, the Trial Chamber had no choice but to follow the applicable standard on cumulative convictions and enter convictions for both crimes.63 The Prosecution argued that the Trial Chamber erred by applying circular reasoning when it concluded that because the actus reus of the two crimes is materially distinct, the underlying conduct should also be distinct.64 Second, the Prosecution submitted that the Trial Chamber lacked the discretion not to apply the test on cumulative convictions and that it erred by taking into account unwarranted factors.65 Specifically, the Prosecution argued that the Trial Chamber erroneously followed the Musema and Popović trial jurisprudence and considered factors such as “the position favourable to the accused” and the “unique nature” of the crime of conspiracy to commit genocide and the conduct involved in a joint criminal enterprise.66 Such factors, the Prosecution stressed, are not relevant in the application of the cumulative convictions standard.67 Applying the cumulative convictions standard, it is error to take into account factors concerning what may be favourable to the accused since the Appeals Chamber devised the standard itself to take into

60 Id. 61 Id. 62 Id. at ¶ 25. 63 Id. at ¶¶ 26–29. 64 Id. at ¶ 27. 65 Id. at ¶¶ 30–38. 66 Id. at ¶ 32; Gatete, Case No. ICTR 00-61-A, Transcript at p. 38 (May 7, 2012). 67 Gatete, Case No. ICTR 00-61-A, Brief of Petitioner-Appellant at ¶ 32 (July 18, 2011). permissibility of convictions for genocide 231 account fairness to the accused.68 Taking such factors into account in addition to applying the cumulative convictions standard would effectively result in double-counting them.69 The Prosecution further contended that the Trial Chamber erred in considering that since the basis for both convictions was evidence of Gatete’s participation in the joint criminal enterprise, his conviction for conspiracy to commit genocide would have been redundant.70 The Prosecution noted that the Trial Chamber “found that a conviction for conspiracy to commit genocide was encompassed in the conviction for genocide through participation in a joint criminal enterprise.”71 The Prosecution explained the law on cumulative convictions operates between crimes and not modes of liability.72 Participation in a joint criminal enterprise is a mode of liability, while conspiracy to commit genocide is a crime. Therefore, the Trial Chamber erred by comparing their elements to decide whether to enter convictions for both genocide and conspiracy.73 By considering a conviction for conspiracy to be redundant where a conviction is already entered for genocide, the Trial Chamber failed in its duty to fully describe Gatete’s criminal culpability.74 Finally, the Prosecution argued that even if the Trial Chamber correctly determined that the standard on cumulative convictions was not applicable, it should nevertheless have convicted Gatete for both genocide and conspiracy to commit genocide. “Separate convictions are always entered for distinct crimes based on different factual scenarios,” the Prosecution posited.75 The Prosecution stressed that the Trial Chamber lacked discretion not to enter convictions where findings of guilt are based on different criminal conduct.76 This, the Prosecution contended, is necessary to fully capture Gatete’s culpability and to respect the mandate of the Tribunal.77

68 Gatete, Case No. ICTR 00-61-A, Transcript at p. 38 (May 7, 2012). 69 Gatete, Case No. ICTR 00-61-A, Brief of Petitioner-Appellant at ¶ 32 (July 18, 2011). 70 Id. 71 Id. at ¶ 36. 72 Id. 73 Id. 74 Id. at ¶ 38. 75 Id. at ¶ 39. 76 Id. at ¶ 40. 77 Id. 232 Boed

3.2.1.2 Gatete’s Response In response, Gatete argued that the Trial Chamber correctly ruled that the standard on cumulative convictions was not applicable in this case.78 He contended that the acts underlying the findings of responsibility for genocide and conspiracy to commit genocide are distinct, although they are part of the same set of facts.79 The factual findings related to the events in Rwankuba sector and at Kiziguro and Mukarange parishes underpinned the finding of responsibility for genocide but only constituted the basis from which the Trial Chamber inferred the conspiracy, argued Gatete.80 “The underlying act of conspiracy is the inferred agreement and is necessarily distinct, by essence, of the subsequent acts of participation to the genocide.”81 Consequently, Gatete stressed, the Trial Chamber correctly relied on the Musema and Popović trial jurisprudence, which was consistent with the legislators’ intent that convictions for genocide and conspiracy to commit genocide not be entered cumulatively.82 Gatete noted that the Musema and Popović trial judges referred to the travaux préparatoires of the Genocide Convention to show that “the crime of conspiracy was an inchoate crime, intended to punish an agreement which, in and of itself, did not yet constitute genocide; the converse implication being that no purpose would be served in convicting an accused for conspiracy if he has already been found guilty of the substantive offence of genocide for the same set of facts.”83 Gatete also highlighted in his response that, like in the Musema and Popović cases, in his case the proof of his participation in the joint criminal enterprise to commit genocide was also the evidentiary basis for the inference of a prior illegal agreement upon which the finding of conspiracy rested.84 In these circumstances, conviction for both genocide committed through joint criminal enterprise and conspiracy to commit genocide are redundant, Gatete submitted.85

78 Gatete, Case No. ICTR 00-61-A, Brief of Respondent-Appellee at ¶¶ 10–11 (Nov. 4, 2011). 79 Id. at ¶ 10. 80 Id. 81 Id. 82 Id. at ¶ 15. 83 Id. (referring to Musema, Case No. ICTR 96-13-T, Judgment and Sentence of the Trial Chamber, ¶ 198 (Jan. 27, 2000) and Prosecutor v. Popović, et al., Case No. IT-05-88-T, Judgment of the Trial Chamber, ¶ 2121 (Int’l Crim. Trib. For the Former Yugoslavia (June 10, 2010)). See also id. at ¶ 18. 84 Id.at ¶¶ 17, 18. 85 Id. permissibility of convictions for genocide 233

3.2.1.3 Prosecution’s Reply In its reply, the Prosecution took issue with Gatete’s reading of the travaux préparatoires of the Genocide Convention, emphasizing that a close reading indicates that the crime of conspiracy to commit genocide was established as an independent crime from genocide.86 The Prosecution pointed out that unlike genocide, conspiracy criminalizes collaboration of persons with criminal intent.87 To punish the acts of planning and preparation, the Prosecution argued, a conviction for conspiracy to commit genocide must be entered.88 In sum, “cumulative convictions for conspiracy and genocide are justified.”89

3.2.2 Appeal Judgement The Appeals Chamber considered the Parties’ submissions and observed that this was the first time it was called upon to determine whether an accused could be convicted both of genocide and conspiracy to commit genocide.90 It noted that previous trial chambers of the ICTR and the ICTY have dealt with this issue in various ways, “from considering that the test on permissibility of cumulative convictions was applicable to finding that it did not apply and from entering convictions on both crimes to entering a conviction on only one.”91 Against this background, the Appeals Chamber recalled the applicable standard, that convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other, and held that the Trial Chamber did not err in concluding that the crimes in question are distinct and that the conduct upon which each is based is not the same.92 Notably, the Appeals Chamber highlighted that the crime of conspiracy to commit genocide requires the act of entering into an agreement to commit genocide which is not a part of the actus reus of the crime of genocide.93 In essence, the Appeals Chamber concluded that the prohibition on cumulative convictions does not apply to the crimes of genocide and conspiracy to commit genocide because the conduct underlying each of these crimes is different.

86 Gatete, Case No. ICTR 00-61-A, Reply Brief of Petitioner-Appellant at ¶¶ 22–23 (Nov. 21, 2011). 87 Id. at ¶ 23. 88 Id. 89 Id. at ¶ 22. 90 Gatete, Case No. ICTR 00-61-A, Judgment of the Appeals Chamber at ¶ 259. 91 Id. at n. 629 (setting out the relevant jurisprudence). 92 Id. ¶¶ 259–60. 93 See Id. at ¶ 260. 234 Boed

As the two crimes are distinct, based on different underlying conduct, the Appeals Chamber held that the Trial Chamber erred by convicting Gatete for only one of the crimes.94 The Appeals Chamber ruled that “by convicting Gatete only of genocide while he was also found criminally responsible for conspiracy to commit genocide, the Trial Chamber failed to hold him responsible for the totality of his criminal conduct, which included entering into the unlawful agreement to commit genocide.”95 In finding this error, the Appeals Chamber recalled appellate jurisprudence holding that a trial chamber lacks discretion to decide not to enter convictions for all distinct crimes that have been proven.96 The Appeals Chamber rejected Gatete’s argument that the Trial Chamber correctly relied on the Musema and Popović trial jurisprudence, which was, in his view, consistent with the legislators’ intent that convictions for genocide and conspiracy to commit genocide not be entered cumulatively.97 It held that “the inchoate nature of the crime of conspiracy does not obviate the need to enter a conviction for this crime when genocide has also been committed by the accused, since the crime of genocide does not punish the agreement to commit genocide.”98 Relying on the travaux préparatoires of the Genocide Convention, the Appeals Chamber explained that while one reason for criminalizing conspiracy to commit genocide is to prevent the commission of genocide, another reason is “to punish the collaboration of a group of individuals resolved to commit genocide.”99 This finding echoed the Prosecution’s submission on appeal that while killings and committing other bodily or mental harm are acts subsumed in the crime of genocide, the actus reus of conspiracy to commit genocide, the unlawful agreement to commit genocide, “will never be subsumed” under genocide.100 For this reason, the Appeals Chamber ruled, where conspiracy to commit genocide was committed, it must be punished whether or not the crime of genocide was committed and whether or not it is being punished.101 “The danger represented by such collaboration itself justifies the incrimination of the acts of conspiracy,” wrote the Appeals Chamber.102

94 Id. at ¶ 261. 95 Id. (Agius, J., dissenting). 96 Id. ¶ 261. 97 Id. ¶ 262 (Agius, J., dissenting). 98 Id. ¶ 262 (Agius, J., dissenting). 99 Id. 100 See Gatete, Case No. ICTR 00-61-A, Transcript at p. 40. 101 Gatete, Case No. ICTR 00-61-A, Judgment of Appeals Chamber at ¶ 262. 102 Id. at ¶ 262. permissibility of convictions for genocide 235

Having so found, the Appeals Chamber addressed Gatete’s remaining argument in response to the Prosecution’s appeal that a conviction for conspiracy would be redundant in his case where he was already convicted for genocide, since the proof of his participation in the joint criminal enterprise was also the basis for the inference that he entered into an unlawful agreement to commit genocide.103 The Appeals Chamber simply ruled that the prohibition on cumulative convictions arises only between crimes. Since joint criminal enterprise is not a crime but a form of participation in a crime, “a comparison of the evidence underpinning [conspiracy to commit genocide and joint criminal enterprise] is irrelevant when deciding whether convictions can be entered for both crimes of genocide and conspiracy to commit genocide”.104 In view of its findings, the Appeals Chamber held that the Trial Chamber erred in law when, although it found Gatete responsible for both genocide and conspiracy to commit genocide, it convicted him only for genocide but not for conspiracy.105 Accordingly, having further found that the Trial Chamber held as proven the facts underpinning the elements of conspiracy, the Appeals Chamber granted the Prosecution’s appeal and entered a conviction against Gatete for conspiracy to commit genocide in relation to Rwankuba sector and Kiziguro and Mukarange parishes.106 The Appeals Chamber did not consider any potential impact on Gatete’s sentence as a result of this additional conviction since the Prosecution did not seek an increase in the sentence in its appeal.107

103 Gatete, Case No. ICTR 00-61-A, Brief of Respondent-Appellee at ¶¶ 17–18 (Nov. 4, 2011). 104 Gatete, Case No. ICTR 00-61-A, Judgment of Appeals Chamber at ¶ 263 (Agius, J., dissenting). 105 Id. at ¶ 264 (Agius, J. dissenting). 106 Id. at ¶¶ 265–66 (Pocar, J., dissenting in part; Agius, J., dissenting). Judge Pocar agreed with the majority that the Trial Chamber erred in law when it failed to enter a conviction for conspiracy to commit genocide, but disagreed that such conviction should be entered by the Appeals Chamber. Rather, Judge Pocar favored the approach taken by the Appeals Chamber in the Krstić case where the Chamber corrected the trial chamber’s error of law without entering a new conviction on appeal, thus safeguarding the appellant’s right to an appeal. Gatete, Case No. ICTR 00-61-A, Judgment of the Appeals Chamber at ¶ 4 (Pocar, J., dissenting in part) (referring to Prosecutor v. Krstić, Case No. IT-98-33-A, Judgment of the Appeals Chamber (Int’l Crim. Trib. For the Former Yugoslavia (Apr. 19, 2004)). Judge Agius dissented in essence on the following basis: “In circumstances where the criminal acts giving rise to the conviction for conspiracy to commit genocide are already reflected and punished by the conviction for genocide, as is the situation here, the entering of an additional conviction for conspiracy effectively punishes the accused again for the same conduct.” Id. at ¶ 8 (Agius, J., dissenting). Judge Agius presided over the ICTY trial chamber in the Popović case upon which Gatete relied in support of his arguments. 107 Id. at ¶ 265. 236 Boed

4 Concluding Remarks

The Prosecution’s pursuit of the conspiracy conviction alongside Gatete’s conviction for genocide based on the events at Rwankuba sector and Kiziguro and Mukarange parishes demonstrated the drive of Justice Jallow and his office to hold perpetrators fully accountable for the totality of their unlawful conduct. In Gatete, the first case to address at the international appellate level whether simultaneous convictions for genocide and conspiracy to commit genocide are permissible, this meant pursuing the Prosecution’s vision until the whole of Gatete’s culpable conduct was adjudged and encompassed by a crime. As the Appeals Chamber found, convicting Gatete for genocide but not for conspiracy would have left his unlawful agreement to commit genocide unpunished, necessitating, as the Prosecution successfully argued, his additional conviction for conspiracy to commit genocide. Justice Jallow’s prosecution of the Gatete case to the ultimate decision of the Appeals Chamber to enter the additional conviction for conspiracy highlighted his commitment to closing the impunity gap and working to ensure full accountability for international crimes. It also resulted in a precedent-setting appellate decision that for the first time at the ICTR and the ICTY ruled that it is permissible, and indeed mandatory, to convict a person for genocide and conspiracy to commit genocide in respect of the same events where the person is proven to have committed both crimes. Chapter 15 The Taylor Case Aiding and Abetting, “Specific Direction” and the Possibility of Negligence Liability for Remote Offenders

Frédéric Mégret and Siena Anstis

1 Introduction

Although the complexities of the substantive definition of international crimes have provided much food for thought over the last two decades, no debate has generated as much perplexity and complication as the one surrounding the proper modes of imputating individual liability under international criminal law. The basic tension can be summarized as one between the needs of social defence and deterring crimes by capturing a range of behaviour that is deemed dangerous to international society on the one hand; and ensuring that no one is convicted for one of the greatest offences known to humanity without some appropriately high level of moral fault on the other hand. Reconciling that tension, ironically, has proven to be hardest with precisely those individuals who are higher up in the political hierarchy and one may suspect of being most responsible for crimes occurring but who, precisely as a result of their position, are sometimes the ones most able to insulate themselves from the actual physical and organizational commission of crimes. This is a fortiori the case of “outsiders” or “remote” offenders i.e.: individuals operating from outside the system that is most actively involved in the commission of crimes by, for example, providing support from another country. Understandably, international criminal justice has increasingly turned its attention to these outsiders, without whom the commission of atrocity crimes would often not be possible. The case of Charles Taylor provides a particularly telling illustration of some of these dilemmas. At the time he is alleged to have committed his crimes, Taylor was the head of state of Liberia, but accused of committing crimes in Sierra Leone notably through support he provided to rebel groups. There is, therefore, an element of remoteness from the scene of the crime that is particularly interesting, and no doubt the trial was watched beyond Sierra Leone and Liberia because of the implications it may have for the future development of international criminal law. The crux of the accusation was that Taylor had aided and abetted crimes committed by the Revolutionary United Front (RUF) and the Armed Forces Revolutionary Council (AFRC) in Sierra Leone.

Aiding and abetting liability, which generally involves the provision of practical assistance or encouragement to another person who then commits the underlying offense, has not necessarily been a favourite tool for the prosecution of war criminals or a matter of much concern in international criminal law theory.1 International criminal law scholars have been more preoccupied with the development of extended joint criminal enterprise (JCE),2 which eclipsed concerns about the possible over breadth of aiding and abetting until recently. With the questionable future of JCE, aiding and abetting now has the potential of becoming an important mode of criminal liability. Compared to JCE, aiding and abetting liability refocuses attention on the acts of a particular defendant and his specific contribution to an underlying crime, whilst minimizing the element of common design characteristic of JCE. However, like JCE, aiding and abetting creates familiar dilemmas of whether the behaviour is culpable enough to render someone guilty of the underlying offence. Such is indeed the stake: convicting someone as if he committed the crime as a principal based on his participation, not convicting him of a separate offence. Remoteness fulfils the role that in a sense the collective element in JCE did in creating doubts about liability because the link with the crime appears more tenuous. However, as we will see, whereas the broad reach of JCE rightly raised alarm signals in terms of its fairness to defendants, at this

1 A review of the literature shows that there are few exhaustive articles exploring the notion of aiding and abetting in the context of international criminal law and the jurisprudence of the ad hoc tribunals. See generally Sarah Finnin, Elements of Accessorial Modes of Liability: Article 25(3)(b) and (c) of the Rome Statute of the International Criminal Court (2012); Flavio Noto, Secondary Liability in International Criminal Law: A Study on Aiding and Abetting or Otherwise Assisting the Commission of International Crimes (2013); Gideon Boas, James L. Bischoff & Nathalie L. Reid, Forms of Responsibility in International Criminal Law (2007). 2 JCE III, or extended JCE, involves cases where a participant commits to the goals of a joint criminal enterprise and becomes liable for foreseeable criminal acts of the other participants, even if these acts were not part of the agreement before their commission. There is criminal liability for these extended acts as long as the defendant could reasonably foresee that the co-participants might act this way. See Jens David Ohlin, “Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise,” 5 J. Int. Crim. Justice 69, 75 (2007). See also Wolfgang Schomburg, “Jurisprudence on JCE: Revisiting a Never Ending Story,” Cambodia Tribunal (June 1, 2010), http://www.cambodiatribunal.org/sites/default/files/resources/ ctm_blog_6_1_2010.pdf; Darryl Robinson, “The Identity Crisis of International Criminal Law,” 21 Leiden J. Int. Law 925 (2010); Allison Marston Danner & Jenny S. Martinez, “Guilty Associations: Joint Criminal Enterprise, Command Responsibility and the Development of Criminal Law,” 93 Calif. Law Rev. 75 (2005). The Taylor Case 239 point in time the concern with aiding and abetting lies more in its undue narrowing of the scope of criminal responsibility because of the introduction of a “specific direction” requirement. This shows that alongside concerns about fairness to the accused, there is also a risk that international criminal justice might end up depriving itself of tools to which it can legitimately claim, and that have their place in the arsenal of repression. Because Taylor was eventually cleared of acting in concert with the leaders of rebel groups in Sierra Leone and of command responsibility, the question of his responsibility as an aider and abettor took centre stage, crystallizing the complexities of aiding and abetting liability.3 The usefulness of aiding and abetting in this context from a prosecutorial point of view is that it does away with the need to individually assess the contribution of Taylor to specific crimes in Sierra Leone: it suffices to say that he provided substantial support to groups whose military operations were “inextricably linked” to the commission of the crimes charged in the Indictment in order to establish the elements of aiding and abetting.4 This element of substantial support was further emphasized by the fact that the Appeals Chamber (AC) of the Special Court for Sierra Leone (SCSL) did away with the need for the actus reus of aiding and abetting to include an element of “specific direction” to the underlying crimes in the case of “remote actors.”5 This notion of “specific direction” stemmed from a decision issued by the AC of the International Criminal Tribunal for the Former Yugoslavia (ICTY) earlier in the same year. In Prosecutor v. Momčilo Perišić (Perišić),6 the AC held that the actus reus of aiding and abetting liability required demonstrating that the acts of the Accused were “specifically directed” to the commission of the underlying crimes and that this had to be explicitly addressed in cases of “remote”

3 Prosecutor v. Taylor, Case No. SCSL-03-01-A, Judgment (Spec. Ct. for Sierra Leone Sept. 26, 2013), http://www.sc-sl.org/LinkClick.aspx?fileticket=t14fjFP4jJ8=&tabid=191. 4 Id. at ¶ 253–54, 508–12. For example, at paragraph 253, the TC in Taylor held that the RUF’s “operational strategy was characterised by a campaign of crimes against the Sierra Leone population, including the crimes charged in all 11 Counts of the Indictment, which were inextricably linked to the strategy of the military operations themselves.” The fact that the Accused assisted a group whose acts, according to the TC and affirmed by the AC, could not be divorced from their criminal nature was critical in linking the Accused to the commission of the underlying crimes. 5 Id. at ¶ 486. 6 Case No. IT-04-81-A, Judgment of the Appeals Chamber (Int’l Crim. Tib. for the Former Yugoslavia Feb. 28, 2013), http://www.icty.org/x/cases/perisic/acjug/en/130228_judgement.pdf. 240 Mégret and Anstis actors.7 The SCSL’s unequivocal rejection of “specific direction” in the Taylor Appeal Judgment (AJ) revealed a clear split in how ad hoc tribunals think international criminal principles should address the law of aiding and abetting. Another ICTY AC decision further complicated the issue by joining the SCSL AC in rejecting the requirement of a “specific direction” established in the Perišić appeal.8 As such the Taylor AJ is part of an important continuing debate in international criminal law on the legality and legitimacy of modes of participation in crime, such as aiding and abetting. In this article, starting with a crimino- logical concern, we argue that the type of behaviour that aiding and abetting captures is, indeed, a type of behaviour that must be criminalized in order to effectively prevent and deter crimes in the context of armed conflict. A key priority of international criminal law is prosecuting those most responsible. While there is no clear definition yet of who exactly this encompasses, we suggest that it covers not only those in the highest political and military positions who order or organize the perpetration of crimes, but also those who are in the position of being able to facilitate the commission of underlying crimes from afar, whether for political purposes or in their own self-interest.9 Thus, aiding and abetting is a priori useful mode of liability. That it is useful in principle, however, does not make it fair in every case and, as the case law demonstrates, determining where the line should be drawn between criminal and non-criminal assistance is a difficult task.10 Relying on similar legal sources, namely customary law, post-World War II cases and their own case law, the ad hoc tribunals have come to different conclusions on the scope of aiding and abetting liability – even within their own Appeals Chambers. Moreover, beyond the law stricto sensu, the moral logic behind the scope of aiding and abetting is something that remains frustratingly elusive.

7 A “remote” actor can be defined as one involved in acts that are not “geographically or otherwise proximate to” the crimes of the principal perpetrators. Id. at ¶ 38. 8 Prosecutor v. Šainovic, Pavković, Lazarević, & Lukić, Case No. IT-05-87-A, Judgment of the Appeals Chamber (Int’l Crim. Trib. for the Former Yugoslavia Jan. 23, 2014), http://www .icty.org/x/cases/milutinovic/acjug/en/140123.pdf. 9 See Carla Del Ponte, “Prosecuting the Individuals Bearing the Highest Level of Responsibility,” 2 J. Int. Crim. Justice 516 (2004). 10 As Stewart notes, “there is much debate about what standard of accomplice liability is normatively preferable.” See James Stewart, “The Turn to Corporate Criminal Liability for International Crimes,” 47 N.Y.U. J. Int’l L. & Pol. XX (2014), available at http://papers .ssrn.com/sol3/papers.cfm?abstract_id=2354443. The Taylor Case 241

As one academic writes, the “puzzle” around aiding and abetting liability is defining “what relationship must exist between the act of the accomplice and the state of affairs the law seeks to prevent.”11 The problem in international criminal law is a real one, even though “specific direction” may not have been the appropriate answer to it. This article is an attempt to generate further discussion around the boundaries of aiding and abetting liability in international criminal law and the appropriate relationship between the aider and abettor and the “state of affairs” that this body of law seeks to prevent. First, we briefly summarize key cases addressing the legal test for aiding and abetting liability at the SCSL and the ICTY. Second, we discuss two concerns raised by the Perišić AJ, namely the collapse of the mens rea and actus reus of an offence and the imposition of narrow evidentiary standards in the context of “specific direction.” Third, we consider whether the standard adopted in the Taylor AJ (and in many ICTY cases prior to the Perišić AJ) is overbroad. In conclusion, we suggest that the discussion should in some cases (although not necessarily in Taylor) shift away from aiding and abetting liability altogether where one would be stretching the meaning of complicity. Instead we suggest that it may be worth thinking about ways in which international criminal law might venture into the realm of negligence liability where a subjective mens rea is not present but some manifest departure from ordinary standards of care has occurred.12

2 The Case Law

This section provides a brief summary of cases addressing the inclusion of “specific direction” as an element of the actus reus of aiding and abetting at the ICTY and SCSL ad hoc tribunals. ICTY decisions, in particular, demonstrate the origins of the misunderstanding behind the requirement of “specific direction.” With the AC now rejecting its prior decision in Perišić, where it had accepted that “specific direction” was a requirement of the actus reus of aiding and abetting, the law remains murky at best. The SCSL AC’s decision in Taylor shows that disagreement with the “specific direction” requirement goes beyond the

11 Michael S. Moore, “Causing, Aiding, and the Superfluity of Accomplice Liability,” 156 Univ. Pa. Law Rev. 395, 399 (2007). 12 We use the term negligence liability to mean a mode of liability, which, by operation of the defense of due diligence and reasonable care, requires at least negligence by the Accused. 242 Mégret and Anstis scope of the ICTY and that, much like in domestic law, there are fundamental disagreements as to the appropriate scope of aiding and abetting liability.

2.1 ICTY Decisions and the Origins of “Specific Direction” “Specific direction” originated in Prosecutor v. Tadić, the first case where the ICTY addressed aiding and abetting under its Statute.13 After considering post-World War II trials and the International Law Commission Draft Code of Crimes Against Peace and Security, the Trial Chamber (TC) concluded that the appropriate mens rea was knowledge and that an accused would be found liable for conduct where “his participation directly and substantially” affected the commission of crimes.14 On appeal in the same case, while comparing JCE to aiding and abetting, the ICTY AC held that an aider and abettor “carries out acts specifically directed” to assist the commission of the underlying crimes and that “this support has a substantial effect.”15 The elements of aiding and abetting were further addressed in subsequent decisions. These cases are notable for their inconsistent enunciation of the actus reus of aiding and abetting.16

13 Case No. IT-94-1-T, Opinion and Judgment, ¶ 229 (Int’l Crim Trib. for the Former Yugoslavia May 7, 1997), http://www.icty.org/x/cases/tadic/tjug/en/tad-tsj70507JT2-e.pdf. 14 Id. at ¶ 692. 15 Prosecutor v. Tadić, Case No. IT-94-1-A, Judgment of the Appeals Chamber (July 15, 1999), http://www.refworld.org/docid/40277f504.html. 16 In Prosecutor v. Furundžija, Case No. IT-95-171-T, Judgment of the Trial Chamber, ¶¶ 233–235 (Int’l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998), http://www.icty .org/x/cases/furundzija/tjug/en/fur-tj981210e.pdf, the TC held that customary international law required that assistance have a “substantial effect” on the commission of crimes. In Prosecutor v, Aleksovski, the AC held that aiding and abetting consisted of a “substantial effect” requirement and the mens rea standard of knowledge (Case No. IT-95- 141-A, Judgment of the Appeals Chamber, ¶ 164 (Int’l. Crim. Trib. of the Former Yugoslavia Mar. 24 2000), http://www.icty.org/x/cases/aleksovski/acjug/en/ale-asj000324e.pdf). In adopting this definition, the AC relied on Furundžija, yet there was no discussion of “specific direction.” In Prosecutor v. Krnojelac, the AC cited Tadić, but made no mention of the specific direction requirement holding only that aiding and abetting required a “substantial effect” on the perpetration of the crime (Case No. IT-97-25-A, Judgment of the Appeals Chamber, ¶ 37 (Int’l Crim. Trib. of the Former Yugoslavia Sept. 17, 2003), http:// www.icty.org/x/cases/krnojelac/acjug/en/krn-aj030917e.pdf). By contrast, in Prosecutor v Vasiljević, the AC found that an “aider and abettor carried out acts specifically directed to assist” and which had a “substantial effect” on the perpetration of the crime (Case No. IT-98-32-A, Judgment of the Appeals Chamber, ¶ 102, (Int’l Crim. Trib. of the Former Yugoslavia Feb. 25, 2004), http://www.icty.org/x/cases/vasiljevic/acjug/en/val-aj040225e .pdf). Yet, only two months later, the AC omitted any mention of specific direction in The Taylor Case 243

In Prosecutor v. Mrkšić & Šljivančanin, the AC finally engaged in a lengthier discussion of “specific direction.”17 The AC concluded that the notion of “specific direction” was part of the actus reus of aiding and abetting and not the mens rea.18 Moreover, the AC had already rejected an “elevated mens rea” for aiding and abetting, which, as it was proposed, required that the alleged aider and abettor had to have intended to provide assistance.19 However, all in all, the AC concluded that “specific direction” was not an “essential ingredient” of the actus reus of aiding and abetting.20 Only in the Perišić decisions did the scope of aiding and abetting and the requirement of “specific direction” become a major concern. The facts in Perišić demonstrated the emerging problem of remoteness: Perišić was charged with aiding and abetting crimes committed in Sarajevo and Srebrenica for his role in facilitating the provision of military and logistical assistance from the Yugoslav Army (“VJ”), of which he was Chief of General Staff, to the Army of the Republika Srpska (“VRS”) in Bosnia and Herzegovina.21 As Chief during

Prosecutor v. Krstić (Case No. IT-98-33-A, Judgment of the Appeals Chamber, ¶ 238, (Int’l Crim. Trib. of the Former Yugoslavia Apr. 19, 2004), http://www.icty.org/x/cases/krstic/ acjug/en/krs-aj040419e.pdf). In late 2004, the AC had a chance to engage in a more extensive discussion of the specific direction requirement, yet declined to. In Prosecutor v. Blaškić, the Accused submitted that aiding and abetting imported a causation requirement, which meant that the contribution of the aider and abettor had to have a “direct and important impact” on the commission of the crimes (Case No. IT-95-14-A, Judgment of the Appeals Chamber, ¶ 43 (Int’l Crim. Trib. of the Former Yugoslavia July 29, 2004), http://www.icty.org/x/cases/blaskic/acjug/en/bla-aj040729e.pdf). Citing Vasiljević, the AC set out the requirements for the actus reus of aiding and abetting, clearly noting a two-part requirement of specific direction and “substantial effect” (Id. at ¶ 45). Yet, the TC’s reliance on the Furundžija decision without discussing specific direction was not incorrect (Id. at ¶ 46). 17 Case No. IT-95-131-A, Judgment of the Appeals Chamber, (Int’l Crim. Trib. of the former Yugoslavia May 5, 2009), http://www.icty.org/x/cases/mrksic/acjug/en/090505.pdf. 18 Id. at ¶ 159. 19 Id. 20 Id. The AC seems to have adopted this view in a subsequent case, noting that the alleged aider and abettor had to have “substantially contributed” to a crime in order to be liable and made no mention of “specific direction.” See Prosecutor v. Gotovina & Markač, Case No. IT-06-90-A, Judgment of the Appeals Chamber, ¶ 127 (Int’l Crim. Trib. of the Former Yugoslavia Nov. 16, 2012), http://www.icty.org/x/cases/gotovina/acjug/en/121116_ judgement.pdf. 21 Perišić, Case No. IT-04-81-A, Judgment of the Appeals Chamber, ¶ 3 (Int’l Crim. Trib. for the Former Yugoslavia Feb. 28, 2013), http://www.icty.org/x/cases/perisic/tjug/en/110906_ judgement.pdf. 244 Mégret and Anstis the indictment period, Perišić was the most senior officer in the VJ and was headquartered in Belgrade, Serbia.22 Thus, not only was Perišić not directly in charge of the VRS, who were the physical perpetrators, but he was also geographically distant from the location where the crimes were committed. In laying out the requirements for the actus reus of aiding and abetting, the TC held that criminal liability hinged on whether Perišić’s acts had a “substantial effect” on the crimes committed by VRS.23 “Specific direction” was not an “essential ingredient” of aiding and abetting.24 The findings on “specific direction” were reversed on appeal in a much-commented decision, and Perišić was acquitted. In finding that “specific direction” was an explicit requirement of aiding and abetting, the AC justified its decision in light of prior case law.25 In particular, the AC distinguished its decision from other cases by holding that the alleged aider and abettor was remote from the crimes in Perišić and thus “specific direction” had to be explicitly considered.26 The AC found that “assistance from one army to another army’s war efforts is insufficient, in itself, to trigger individual criminal liability” absent proof of “specific direction.”27 In coming to this conclusion, the AC cautioned that this decision was not meant to “deflect criminal liability” through the subcontracting of criminal behaviour.28

22 Prosecutor v. Perišić, Case. No. IT-04-81-T, Judgment Summary (Int’l Crim. Trib. of the Former Yugoslavia Sept. 6, 2011), http://www.icty.org/x/cases/perisic/tjug/en/110906_ summary.pdf. 23 Perišić, Case No. No. IT-04-81-T, Judgment of the Trial Chambers at ¶ 126. 24 Id. at ¶ 126. 25 The Chamber first held that the Tadić decision had never been departed from, and that, while subsequent decisions did not necessarily mention “specific direction,” they employed equivalent terms. In cases where there was no mention of “specific direction,” the AC considered that the Chamber had not provided a comprehensive definition of aiding and abetting. In other judgments, specific direction was included implicitly in the analysis. Finally, the AC held that the Mrksić decision setting aside specific direction was not decisive on this issue. In particular, the AC noted that the analysis referring to specific direction was wrongly considered under the mens rea, the AC did not acknowledge a departure from the prior case law, and only cited to one appeal judgment to support its point. See Perišić, Case No. IT-04-81-A, Judgment of the Appeals Chambers at ¶¶ 27–36. 26 Id. at ¶¶ 37–40. This was in contrast to situations where the aider and abettor was on-site during the commission of the crime and “the existence of ‘specific direction’ was self- evident.” Thus, the AC seems to have adopted a very broad definition of remote, which would subject most aiding and abetting fact patterns to the specific direction requirement. 27 Id. at ¶ 72. 28 Id. The Taylor Case 245

The holding in the Perišić AJ has been addressed by the ICTY in two further cases. In Prosecutor v. Jovica Stanišić, Franko Simatović, the TC applied the requirement of “specific direction” and acquitted the Accused.29 On January 23, 2014, a different ICTY AC rejected the “specific direction” requirement previously enunciated in the Perišić AJ. Adopting similar reasoning as the SCSL’s AC in Taylor, and after reviewing relevant ICTY cases, customary international law and domestic law principles, the AC found that the legal standard for aiding and abetting was wrongly decided in Perišić, and firmly rejected the requirement of “specific direction” in favour of the “substantial effect” standard.30 The Taylor decision must be understood against this background.

2.2 Special Court for Sierra Leone (SCSL): The Taylor Decisions The significance of the Taylor decisions is that one might think that they were a priori highly suited for the AC’s reasoning in Perišić. If Perišić was considered to be remote from the scene of the crimes in Bosnia-Herzegovina, then a fortiori Taylor ought to be considered as remote. At least Perišić operated from within the former-Yugoslavia, arguably providing support to troops that had previously been part of the same country. Conversely, Taylor was clearly operating from and as a national and official of a foreign country. The fact that the Perišić reasoning on “specific direction” was nonetheless rejected, then, is all the more telling.

2.2.1 Trial Judgment On September 26, 2013, the conviction of the former President of Liberia for aiding and abetting crimes committed by the RUF in Sierra Leone was affirmed on appeal. The Taylor case is an example of a remote actor conviction on the basis of aiding and abetting liability. Taylor was found guilty of aiding and abetting crimes committed by a group not under his authority and located in another country. His involvement with the RUF was at arm’s length. Decided before the ICTY AC’s decision in Perišić, the Taylor Trial Judgment (TJ) makes no mention of a requirement of “specific direction” in the legal standard for aiding and abetting. The SCSL concluded, much as previously suggested in ICTY case law, that the Accused’s acts had to have a “substantial

29 Prosecutor v. Stanišić & Simatović, Case No. IT-03-69-T, Judgment of the Trial Chamber – Part II, ¶ 1264, (Int’l Crim. Trib. of the Former Yugoslavia May 30, 2013), http://www.icty .org/x/cases/stanisic_simatovic/tjug/en/130530_judgement_p2.pdf. 30 Šainovic, Case No. IT-05-87-A, Judgment of the Appeals Chamber, ¶¶ 1617–51 (Int’l Crim. Trib. for the Former Yugoslavia Jan. 23, 2014). 246 Mégret and Anstis effect” on the commission of the crime or the underlying offence. Further, the TC concluded that there was no “but for” causality requirement.31 As to the mens rea of aiding and abetting, it simply required that the Accused perform the act with “knowledge” or with awareness of the “substantial likelihood” that it would assist the commission of an underlying offence.32 Knowledge could be inferred from the circumstances. While the Accused had to be aware, at minimum, of the essential elements of the underlying crime for which he was charged of aiding and abetting, the Accused did not need to share the intent of the perpetrator. Rather, he needed only to be aware of it, and such knowledge could be inferred from the circumstances.33 The TC concluded that the actus reus in Taylor constituted the provision of practical assistance, encouragement and moral support, which had a substantial effect on RUF operations. These acts constituted practical assistance in the commission of RUF crimes because the RUF Operational Strategy was found to be “inextricably linked” to the strategy of the military operation themselves, which relied on this assistance.34 The TC further characterized the assistance given as “vital,”35 “indispensable”36 and “critical” to RUF operations.37 In evaluating the mens rea, the TC considered that Taylor acknowledged receiving security briefs on the situation in Sierra Leone38 and testified to news reports on the relevant crimes.39 The TC also considered the existence of numerous public reports describing in detail and over a large period of time the crimes charged, the increasing news coverage and the fact that the commission of such crimes was a key aspect of Economic Community of West African States meetings, which Taylor participated in.40 The TC held that in light of these facts, the Accused had the requisite knowledge that his acts would provide practical assistance and encourage RUF crimes and knew the essential elements of the crime, including the principal offender’s mens rea.

31 Prosecutor v. Taylor, Case No. SCSL-03-01-T, Judgment of the Trial Chamber, ¶ 485 (Spec. Ct. for Sierra Leone May 18, 2012), http://www.sc-sl.org/LinkClick .aspx?fileticket=k%2b03KREEPCQ%3d&tabid=159. 32 Id. at ¶ 486. 33 Id. at ¶ 487. 34 Prosecutor v. Taylor, Case No. SCSL-03-01-A, Judgment of the Appeals Chamber, ¶ 253 (Spec. Ct. for Sierra Leone Sept. 26, 2013). 35 Taylor, Case No. SCSL-03-01-T, Judgment Summary at ¶ 81, http://www.sc-sl.org/LinkClick .aspx?fileticket=86r0nQUtK08=. 36 Id. at ¶ 93. 37 Id. 38 Taylor, Case No. SCSL-03-01-T, Judgment of the Trial Chamber at ¶ 6947. 39 Id. at ¶ 6948. 40 Id. at ¶ 6947. The Taylor Case 247

2.2.2 Appeal Judgment Unlike the TJ, the AJ had to squarely address the issue of “specific direction.” The ICTY AC had just ruled on its applicability in international criminal law under the ICTY Statute. There is no stare decisis in international criminal law, and especially not as between different, irreducible international tribunals that are in no way part of a common hierarchy; nonetheless, it is also quite clear that international tribunals engage in a common dialogue about the nature and content of international criminal law and pay due regard to each other’s case law. Further, the defense argued on appeal that, in addition to other alleged errors in the articulation of the test addressed further below, a purpose standard, which is analogous to “specific direction,” should be adopted as part of the mens rea test for aiding and abetting.41 This is consonant with the fact that the “specific direction” test seem to tighten aiding and abetting, making conviction more improbable. The SCSL AC confirmed that knowledge was the appropriate mens rea.42 Relying on the SCSL Statute and customary law, the AC affirmed the actus reus standard for aiding and abetting as laid out by the TC in Taylor.43 Thus, the AC found that the Accused’s acts had to have a “substantial effect” on the underlying offenses. On the thorny issue of specific direction and the recently released Perišić AJ, the AC held that the Perišić AJ was only persuasive in nature at the SCSL.44 Nor was the AC convinced that “specific direction” was a requirement of customary international law.45 The AC’s decision in Perišić to incorporate “specific direction,” the SCSL held, was based on the ICTY’s own “internally binding” jurisprudence.46 Finally, the AC concluded that while the Perišić AJ introduced “novel elements in its articulation of ‘specific direction,’ ” which might be developed in time, it was not persuaded that it should depart from settled principles of law.47 The AC underlined that it disagreed with the ICTY AC’s treatment of “physical proximity” of the Accused to the crime as a “decisive consideration distinguishing between culpable and innocent conduct.”48 The AC also sought to add further clarification in light of the defense arguments around personal responsibility. The Chamber noted that the SCSL Statute established criminal liability in relation to the Accused’s relationship to the

41 Taylor, Case No. SCSL-03-01-A, Judgment of the Appeals Chamber at ¶¶ 467–68. 42 Taylor, Case No. SCSL-03-01-A, Judgment of the Appeals Chamber at ¶ 436. 43 Id. at ¶ 475. 44 Id. at ¶ 472. 45 Id. at ¶¶ 475, 481. 46 Id. at ¶ 476. 47 Id. at ¶ 480. 48 Id. 248 Mégret and Anstis crime itself, and not the physical perpetrator.49 Thus, acts by the Accused could occur at any time or any place, whether removed from the physical perpetration of the crimes, provided that the impugned acts had a “substantial effect” on the underlying crimes.50 In other words, being a “remote actor” did not displace the “substantial effect” analysis or create a special case requiring a new standard. The AC Chamber further noted that a review of case law applying customary international law had consistently endorsed the “substantial effect” standard.51 Moreover, “substantial effect” provided the requisite causal connection to ensure that an Accused was only guilty for a crime in which he participated in some way.52 Thus, there was no violation of the requirement of personal culpability.

3 Aiding and Abetting Liability in International Criminal Law: Preliminary Issues

Before considering what might be an appropriate articulation of aiding and abetting liability under international criminal law, we address some preliminary issues raised by the “specific direction” requirement in the Perišić AJ. First, we look at how the “specific direction” requirement collapses the distinction between the actus reus and mens rea of aiding and abetting; second, we criticize the implicit introduction of an intent as opposed to merely a knowledge mens rea; third, we consider how the “specific direction” requirement unduly narrows the evidentiary requirements for demonstrating criminal liability.

3.1 Collapsing the Distinction between Mens Rea and Actus Reus The requirement of “specific direction” as part of the actus reus of aiding and abetting collapses the distinction between actus reus and mens rea, notwithstanding the ICTY AC’s attempts to maintain a distinction between both. As Judge Ramaroson, dissenting, noted, “specific direction” was implicitly considered in the context of the mens rea of aiding and abetting and not the actus reus.53 Similarly, in their partial dissent, Judges Meron and Agius wrote that proof of “specific direction” would often be found in evidence illustrative of

49 Id. at ¶ 366. 50 Id. at ¶ 370. 51 Id. at ¶ 371. 52 Id. at ¶ 370. 53 Perišić, Case No. IT-04-81-A, Judgment of the Appeals Chamber at ¶ 7 (Ramaroson, J., dissenting), http://www.icty.org/x/cases/perisic/acjug/en/130228_judgement.pdf. The Taylor Case 249 mens rea and suggested – if they were outside the context of ICTY case law – that “specific direction” be analyzed under the mens rea of aiding and abetting.54 The confusion around “specific direction” and the actus reus/mens rea issue is problematic because it fails to adequately distinguish the actus reus from the mens rea of a mode of liability, which is crucial in criminal law. “Specific direction” seems inconsistent with traditional thinking around the actus reus of a crime and clearly should have been addressed under mens rea. If a person kills another with his or her car, the actus reus issue is solely one of causation: the act happened, but did it cause the harm? If that person’s act caused the death, then the actus reus is established. Nothing more. The issue of whether that person “specifically directed,” i.e. intended, to kill another using their car, or whether it happened by accident, becomes a question of mens rea. In criminal law, mens rea is crucial: it distinguishes between the severity and gravity of various crimes. For example, think about how negligence liability is considered at the bottom of the ladder in terms of culpable conduct and generally leads to the mildest punishment. Constrained by prior jurisprudence, it is likely the ICTY’s AC could not find a convincing reason to suddenly include “specific direction” under the mens rea of aiding and abetting and had to settle with actus reus. This did not go unnoticed. As noted above, Judge Ramaroson, in her dissenting opinion, observed that the real issue here was not a question of “specific direction” but whether the mens rea of aiding and abetting liability was made out despite the distance of the Accused from the underlying crimes.55

3.2 Replacing Knowledge with Intent The Perišić decision appears to have introduced an intent-based mens rea into ICTY jurisprudence, which previously held that aiding and abetting only required being “aware of the essential elements of the physical perpetrator’s crimes.”56 As discussed above, “specific direction” will likely always require the Prosecutor to show the aider and abettor’s intent that his assistance be used to support the commission of crimes. The practical effect is that intent becomes an inevitable component of the mens rea of aiding and abetting. In his dissenting opinion in the Perišić appeal, Judge Liu acknowledges this issue, noting that the decision “effectively raises the threshold for aiding and abetting liability” and “undermin[es] the very purpose of aiding and abetting liability by allowing those responsible for knowingly facilitating the most grievous

54 Id. at ¶¶ 2–4 (Agius, J., & Meron, J., dissenting in part). 55 Id. at ¶ 9 (Ramaroson, J., dissenting) (emphasis added). 56 Boas, Bischoff, & Reid, supra note 1 at 319–21. 250 Mégret and Anstis crimes to evade responsibility for their acts.”57 From a moral point of view, it is widely considered that knowledge or even wilful blindness to the consequences of one’s act is as condemnable as intending the commission of the underlying crime. Certainly convicting individuals on the basis of aiding and abetting merely for their knowledge of crimes corresponds to a need to deter the knowing commission of these crimes; and nor can it be said to be unfair to the accused to convict him for something that he knew might result from his acts but nonetheless persisted in.

3.3 Demanding Too High an Evidentiary Standard While difficulties in evidence gathering should not be determinative of how international criminal law develops, it is a worthy consideration. War crimes occur in unique conflict settings with a broad range of actors involved in different aspects of the commission of crimes. Should evidentiary rules then be developed to accommodate the unique structure of group-based crimes?58 While we do not purport to provide a definitive answer here, it is an important question to keep in mind when judging the wisdom of a “specific direction” standard. The AC’s decision in Perišić demands that in remote actor cases, where a group committing crimes is engaged in both lawful and unlawful activities, some type of direct evidence be provided to prove “specific direction.”59 But such direct evidence may be very difficult to obtain. Such cases at the ICTY have been traditionally built on circumstantial evidence.60 Some concrete examples of the type of evidence required to prove “specific direction” can be identified in the jurisprudence. For example, in his dissent in the Perišić TJ, Judge Moloto suggested that “specific direction” would require showing that Perišić discussed supporting the commission of crimes with the principal perpetrators

57 Case No. IT-04-81-A, Judgment of the Appeals Chamber at ¶ 3 (Liu, J., dissenting in part). 58 See Gideon Boas, “Creating Laws of Evidence for International Criminal Law: The ICTY and the Principle of Flexibility,” 12 Crim. Law Forum 41 (2001). 59 This requirement of direct evidence is first raised by Judge Moloto in his dissent in the Perišić TJ. He writes that in cases where the Accused is remote from the crime, some type of “direct link needs to be established between the conduct of the aider and abettor and the commission of the crimes.” In his analysis of the Perišić case, he notes, for example, that the only “direct evidence” brought by the Prosecution establishing a direct link between the Accused and the crimes “clearly show[ed] that the assistance provided by Perišić did not have a substantial effect on the crimes.” Perišić, Case No. No. IT-04-81-T, Judgment of the Trial Chambers at ¶¶ 10, 12 (Moloto, J., dissenting). 60 Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events 408 (2013). The Taylor Case 251 in meetings.61 However, few sophisticated military leaders will openly debate the commission of crimes, unless to condemn them.62 Alternatively, the Prosecution would have to show that a significant source of arms used during the commission of crimes could be traced directly to Perišić’s organization.63 With criminal investigations generally being conducted long after the end of a conflict, gathering this type of evidence is not self-evident.64 The AC in Perišić also suggested the manner of distribution or the nature of the aid could potentially indicate “specific direction.”65 However, the decision also made it clear that even giving substantial amounts of military aid to a group “inextricably linked” to the commission of crimes will not suffice, suggesting that the nature of the aid provided can only have very limited evidentiary value. While distrib- uting aid specifically to units committing crimes could suggest “specific direction,” this would unlikely be considered sufficient direct evidence, particularly if such units were simultaneously using the aid in combat missions in which they behaved lawfully.66

61 Judge Moloto notes that the Accused did “directly” issue orders providing assistance to the VRS, but “no evidence was presented that such requests were specifically directed at providing practical assistance to the perpetration of crimes.” Further, he notes that “the minutes of the SDC sessions show that not even once was there a discussion among the participants linking the provision of logistical assistance to the VRS to the commission of crimes.” He also underlines “the fact that the evidence before the Trial Chamber did not establish that the specific weapons used in committing the crimes which occurred in Sarajevo and Srebrenica were provided ‘by a process overseen by Perišić’.” Perišić, Case No. No. IT-04-81-T, Judgment of the Trial Chambers at ¶¶ 17–18 (Moloto, J., dissenting). 62 For example, Taylor encouraged the RUF to take part in peace talks while continuing to covertly fund and encourage their military activities. See Taylor, Case No. SCSL-03-01-T, Judgment of the Trial Chamber at ¶ 6941. The TC also found that Taylor had a “significant influence” on the RUF decision to release UNAMSIL peacekeepers. However, in exercising this influence, Taylor promised the RUF assistance “in the struggle.” Taylor, Case No. SCSL- 03-01-T, Judgment Summary at ¶ 117. 63 Judge Moloto reasoned that the Prosecution’s case actually weighed against substantial effect and specific direction because, for example, only 10 per cent of the bullets recov- ered on the crime sites could be attributed to the SDC and none could be “specifically attributed” to Perišić. See Perišić, Case No. IT-04-81-T, Judgment of the Trial Chambers at ¶ 12 (Moloto, J., dissenting). 64 See Carla Del Ponte, “Investigation and Prosecution of Large-Scale Crimes at the International Level: The Experience of the ICTY,” 4 J. Int. Crim. Justice 539 (2006). 65 Perišić, Case No. IT-04-81-A, Judgment of the Appeals Chamber at ¶ 62. 66 The TC held that “part of [the assistance provided by the Accused] was sent to certain VRS units involved in committing crimes.” However, the AC held that “neither the Trial Chamber’s analysis nor the Appeal Chamber’s de novo review identified evidence that 252 Mégret and Anstis

In light of this high threshold, it would have been very difficult to find Taylor guilty of aiding and abetting had “specific direction” been a requirement. There does not appear to have been any specific evidence of Taylor explicitly directing his acts to the commission of the underlying crimes by the RUF. In fact, several aspects of the Prosecution’s case suggest that Taylor specifically intended not to support, at least not overtly, the commission of underlying crimes. Even though he continued to provide the RUF with military assistance, Taylor was involved in the peace process.67 Moreover, because one could argue that the RUF was also involved in a “legitimate” war effort and was not necessarily a criminal organization, circumstantial evidence would have been insufficient to establish “specific direction” since it could have led to more than one reasonable inference. Overall, establishing a “direct link” between the aider and abettor and the underlying crimes becomes very difficult as a result of requiring “specific direction,” if not impossible. The concerns discussed here are particularly well-illustrated in the Stanišić & Simatović TC decision, where, despite their important role in forming the “Red Berets,”68 the perpetrators committing the underlying offences, and in directing this group’s military activities, the Accused were acquitted.69 Finding “specific direction” would likely have required the Accused to expressly tell the “Red Berets” that killing or mistreating civilians was a legitimate means to secure their military targets.70 No reasonable person, knowing full well the legal ramifications, would issue such explicit instructions and it is likely that “specific direction” would have defeated the Prosecution’s case in Taylor.

aid was provided to the VRS in a manner directed at supporting its criminal activities. Evidence on the record instead suggests that Perišić considered the VRS’s requests as a whole and that VJ assistance was delivered to multiple areas within BiH to aid the general VRS war effort” Id. at ¶ 66. 67 See e.g., Taylor, Case No. SCSL-03-01-T, Judgment Summary at ¶ 6941. See also supra note 65. 68 Case No. IT-03-69-T, Judgment Summary (Int’l Crim. Trib. for the Former Yugoslavia May 30, 2013), http://www.icty.org/x/cases/stanisic_simatovic/tjug/en/130530_summary.pdf. 69 While the TC concluded that the Red Berets had committed crimes during some of their operations and that the Accused had “assisted” with the commission of these crimes, the Accused were remote and consequently it was necessary to prove “specific direction.” Furthermore, the fact that the “Red Berets” were involved in both lawful and unlawful activities meant that circumstantial evidence on the provision of assistance was not sufficient to show “specific direction,” since such aid could have been directed towards the war effort. Simatović, Case No. IT-03-69-T, Judgment of the Trial Chamber – Part II, ¶¶ 2359–60. 70 The Accused were also aware of what would be considered illegal. For example, they assisted in organizing training for the “Red Berets,” which covered the treatment of prisoners of war and civilians during war. Id. at ¶ 1369. The Taylor Case 253

4 Taylor: A Normatively Sound Test for Aiding and Abetting in International Criminal Law

The concern about overbreadth in accomplice liability – and in criminal law, more generally – is a legitimate one. Constructing the scope of aiding and abetting liability requires considering the type of behaviour that international criminal law is meant to guard against versus that which it seeks to exclude.

4.1 The Central Dilemma of Aiding and Abetting The central dilemma of aiding and abetting, as it arises within international criminal tribunals committed to both the broad social goals of international criminal justice and fairness to the accused, boils down to a danger of under- inclusiveness and of over-inclusiveness. First, the danger is that aiding and abetting would be narrowed so drastically that individuals who knew that crimes were committed by the armed groups they supported would nonetheless escape liability. This would represent an abandonment of international criminal justice’s goals in one area where it is legitimately expected to make a difference. For example, an acknowledged goal behind international criminal law is deterrence of current and future crimes.71 Important to this goal is deterring behaviour that fuels armed conflict where civilians routinely or purposefully become targets. International criminal law also addresses collective crimes. In this context, international criminal law aims to prosecute not only individuals who are direct perpetrators of certain offences, but also individuals who, whilst not directly perpetrating them, have an important and material effect on the commission of these crimes through other, usually more indirect, means. Only in this way can international criminal justice truly challenge the impunity of leaders who are ultimately most responsible for crimes because of their political and intellectual role in encouraging them. As has been shown, the requirement of “specific direction” would have made it significantly harder to convict Taylor, without it being clear that it safeguarded some significant interest in terms of protecting the morally innocent. Second, the opposite danger is that anyone who provided assistance to an armed group knowing that it may have committed international crimes at

71 Robert Cryer, Hakan Friman, & Darryl Robinson, An Introduction to International Crimnal Law and Procedure 26–28 (Cambridge: Cambridge University Press, 2010). However, deterrence as a goal of international criminal law is not without its critics. See e.g., David Wippman, “Atrocities, Deterrence, and the Limits of International Justice,” 23 Fordham Int. Law J. 473 (1999). For more recent arguments, see Kate Cronin-Furman, “Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocity,” 7 Int. J. Transitional Justice (2013). 254 Mégret and Anstis some point would become an accomplice. This would clearly have the potential to leave the doors of criminal responsibility wide open and as such creates two potential dangers. At the level of policy, to begin with, it might have a chilling effect on military cooperation, going beyond what is desirable internationally or morally legitimate. After all, whilst one may have reservations about various forms of military cooperation, these might be treated through various other legal means (international human rights law for example), and trying to combat them through aiding and abetting liability might occasionally stretch the limits of international criminal law enforcement. Scholars, judges and lawyers have commented on the type of behaviour that international criminal law should endeavour not to capture. For example, Judge Moloto in his dissent in the Perišić TJ72 and the defense arguments submitted in the Taylor AJ73 discuss the central risk of criminalizing war in and of itself. As Judge Moloto noted:

[O]ne cannot simply ignore the reality that relations between states are often reinforced by the provision of significant military aid. Many foreign armies are dependent, to various degrees, upon such assistance to function. In this context, I am mindful that in many conflict zones around the world, the provision of military aid is aimed at supporting mutual interests such as the deterrence of war, the promotion of regional and global peace, stability and prosperity and other objectives.74

Without some kind of stopgap measure (“specific direction” being presumably one such measure), Moloto argues that all “military and political leaders” providing assistance to a foreign army would be liable. This, he underlined, was “manifestly inconsistent with the law.”75 The defense arguments in the Taylor AJ are also constructive in so far as they raise similar concerns about a broad form of aiding and abetting liability in the context of international criminal law and armed conflict. The defense argued that the “substantial effect” (not modified by a requirement of “specific direction”) and knowledge standard for aiding and abetting ends up “criminalizing any contribution to a party to an armed conflict” and fails to distinguish between neutral and criminal assistance.76 Thus, the defense submitted, it could capture assistance appropriate for the waging of war.

72 Perišić, Case No. IT-04-81-T, Judgment of the Trial Chambers at ¶ 86 (Moloto, J., dissenting). 73 Taylor, Case No. SCSL-03-01-A, Judgment at ¶¶ 442, 452–53. 74 Perišić, Case No. IT-04-81-T, Judgment of the Trial Chambers at ¶ 32 (Moloto, J., dissenting). 75 Id. at ¶ 33 (Moloto, J., dissenting). 76 Taylor, Case No. SCSL-03-01-A, Judgment at ¶¶ 346, 354, 393. The Taylor Case 255

From a more criminal point of view, the danger is that over-inclusiveness will lead international criminal law in areas where it is harder to conceive of a role for personal guilt based on just desert because the behaviour in question is very tenuously blameworthy. The defense in Taylor for example argued that the current actus reus standard of aiding and abetting “would mean that any assistance to the parties to an armed conflict would constitute aiding and abetting any crimes committed” and this would be inconsistent with the “principle of personal culpability.”77

4.2 The Role of Causation in Aiding and Abetting Liability These two concerns are, of course, more broadly defining of the proper scope of international criminal law. In the case of JCE (particularly in its extended form) the common argument was that it was over-inclusive, at least in terms of the fairness of individual liability. In the case of aiding and abetting, it seems that the risk following Perišić was the opposite, namely that international criminal law would not go as far as it should in criminalizing reprehensible conduct that is in its mandate to repress. The Taylor verdict responds to the concern of overbreadth by showing how “substantial effect” as the required causal effect of the actus reus on the underlying offences and “knowledge” as the mens rea already alleviates these concerns. Analysis of this standard shows that aiding and abetting is not an all-encompassing, overbroad form of liability under international criminal law. Instead, it tailors the type of behaviour that international criminal law seeks to deter. In particular, when applied on a case by cases basis, it can serve to ensure that the ‘bare’ act of participating or assisting in the waging of war is not criminalized, while assisting a group committing crimes in the context of armed conflict is. The first issue to address in light of these problems is the notion of causation. Just about any act can constitute assistance or encouragement under aiding and abetting. However, in order to give rise to criminal liability, there must be some type of connection between the act of the Accused and the underlying offences. Causation does the job in a way that makes the requirement of “specific direction” appear superfluous. After all, if the assistance of the Accused has no effect on the underlying crimes, it would be manifestly unfair to hold that person responsible for the perpetrator’s behaviour. Causation usually requires some type of activity that has more than a “de minimis” impact.78 Otherwise, criminal liability risks having a chilling effect

77 The defence in Taylor made a number of arguments on this point. Id. at ¶ 388. 78 Id. at 19. 256 Mégret and Anstis on society.79 The causation requirement of “substantial effect” articulated by the ad hoc tribunals is above a de minimis range and thus provides a legitimate means to distinguish non-culpable and culpable conduct. Thus, as the AC notes, an Accused is not held liable for just any assistance provided to a group committing crimes.80 The assistance must have a “substantial effect” on the commission of the underlying crime. There are a number of situations where this threshold may not be met. For example, the fungibility of the means may show that the Accused is not sufficiently connected to the commission of the crime. Alternatively, the assistance may be so insignificant that it has no true causal effect on the commission of the underlying offenses.81 Neutral assistance and assistance in the aggregate may well give rise to criminal liability, but only where such assistance is capable of having a “substantial effect” on the commission of crimes.82 However, it should also be borne in mind that, in a context where it becomes apparent that grave crimes are committed by a group, for an individual to nonetheless continue to support it (even if not directly encouraging crimes) may be interpreted by the group as at least a form of political encouragement of their strategy. The application of these principles is well illustrated by both the Perišić and Taylor TJs where the ICTY and SCSL ACs explicitly found that there was an aspect of dependency between the assistance provided and the underlying offences in establishing liability. Thus, the acts of the Accused were sufficient to have, at least, a “substantial effect” on the acts of the group. The TC’s factual findings in Perišić included that the VRS, the group committing the underlying crimes for which Perišić was indicted, was dependent on his assistance and that he “created the conditions” for the VRS to implement and conduct their war strategy.83 Similarly, in Taylor, the TC described certain assistance provided by the Accused as “vital,”84 “indispensable”85 and “critical.”86

79 Id. 80 The AC notes that it is “fundamental in international criminal law that an accused may only be punished for his criminal conduct.” The AC holds that the “substantial effect” test articulated by the TC is sufficient to ensure that principles of personal culpability are protected: “This requirement ensures that there is a sufficient causal link – a criminal link – between the accused and the commission of the crime before an accused’s conduct may be adjudged criminal.” Taylor, Case No. SCSL-03-01-A, Judgment at ¶ 390. 81 Id. at ¶ 391. 82 Id. at ¶ 395. 83 Perišić, Case No. No. IT-04-81-T, Judgment of the Trial Chambers at ¶¶ 1613, 1623. 84 Taylor, Case No. SCSL-03-01-T, Judgment Summary at ¶ 81. 85 Id. at ¶ 93. 86 Id. The Taylor Case 257

However, the fact that there is an aspect of dependency between the aid provided and the ongoing war is not sufficient to establish criminal liability. In addition, there must be some relationship between this dependency and the commission of the underlying crimes. In the Taylor decision, liability turned on the factual finding that the Operational Strategy of the RUF was “inextricably linked” to the commission of crimes against civilians.87 Thus, Taylor’s liability hinged on the factual determination that it was impossible to divorce the group’s legitimate war activities from its illegitimate war activities. The requirement of an “inextricable link” between a group and the commission of crimes, then, ensures that the support of a group that merely occasionally commits international crimes does not lead, absent specific evidence to that effect, to the conclusion that the accused’s support fuelled the commission of crimes. In other words, two ingredients were necessary to finding Taylor liable: a group whose military strategy was “inextricably linked” to the commission of crimes and sufficient assistance to have a “substantial effect” on the implementation of this military strategy.

4.3 The Role of Mens Rea in Aiding and Abetting Liability Much of the work in defining criminal versus non-criminal behaviour is done by the theory of “substantial effect,” at the level of the actus reus, so as to establish whether the accused even had a role in causing the underlying crimes in question. However, the requirement that the Accused have knowledge is of course a crucial component of the AC’s construction of aiding and abetting in Taylor. The requirement that the Accused be aware of the commission of the underlying offences by the group ensures that no “morally innocent” individual is convicted of grave international crimes, i.e.: because he provided assistance in good faith, not knowing that the group in question committed offences or that the assistance provided would be somehow directed to the commission of crimes. Conversely, where someone consciously behaves knowing the risk or harm this gives rise to, it means he or she is consciously putting his or her own personal interests ahead of the security and wellbeing of those who end up being victims and thus is deserving of punishment. It is one thing to sell arms to a military commander without any knowledge that the arms will be used to kill innocent civilians; it is another to engage in the same transaction with that knowledge. The mens rea identi- fies situations where the Accused has turned his mind towards how his behaviour will impact the underlying offenses and thus, by consequence, should be

87 Taylor, Case No. SCSL-03-01-A, Judgment at ¶¶ 253, 508. 258 Mégret and Anstis considered as having assumed some responsibility for how he behaves and the impact his behaviour has.88 The mens rea requirement is perhaps ultimately the more challenging component in aiding and abetting. There are three variations on mens rea, which all come with their own set of definitional challenges: purpose (sometimes also referred to as intent), knowledge, and recklessness.89 Purpose is considered an outlier in comparative domestic law, where most jurisdictions adopt knowledge as the appropriate standard.90 Purpose requires some kind of “voli- tional commitment” by the Accused.91 A very narrow interpretation of purpose would require that the Accused consciously desire that the principal commit the underlying crimes.92 Knowledge, on the other hand, arises where the Accused acts with awareness of a “virtually certain probability.”93 The easiest standard to meet, recklessness, encompasses acts which the Accused knows are “inherently risky” in nature.94 As noted in the Taylor AJ and other judgments, there is no consistency in domestic jurisdictions over the appropriate standard for the mens rea of aiding and abetting.95 The Rome Statute appears to adopt a “purpose” standard, although it has yet to be interpreted and, as the SCSL AC noted in Taylor, the Rome Statute is not a codification of customary law.96 Considering the controversy around the appropriate standard, this article seeks to examine what standard would be the most appropriate in light of the purposes of international criminal law. We argue that knowledge is an appropriate standard in light of these goals. Requiring a mental element of intent or purpose only would defeat the function and utility of aiding and abetting in international criminal law. As Justice

88 J. D. Ohlin, “Searching for the Hinterman: In Praise of Subjective Theories of Imputation,” 12 J. Int. Crim. Justice 325, 336 (2014). 89 For a more extensive discussion on the three variations of mens rea see Stewart, supra note 75. 90 Id. at 21. 91 Id. at 23. 92 While an extensive discussion of this is beyond the scope of this article, there are also significant definitional issues present in the notion of “intent” as mens rea. For example, intent can be defined as requiring an element of conscious desire, or as simply requiring volition, i.e. that one intend to commit the act itself. Id. at 23–25. 93 Id. at 27. 94 Id. at 29. 95 See e.g., Šainovic, Case No. IT-05-87-A, Judgment of the Appeals Chamber at ¶ 1644; Taylor, Case No. SCSL-03-01-A, Judgment at ¶ 429. 96 Taylor, Case No. SCSL-03-01-A, Judgment at ¶ 435. The Taylor Case 259

Fisher writes in his concurring opinion in Taylor AJ, “criminal law legitimately punishes those who knew what they are doing and proceed to act regardless of whether they desire or are merely indifferent to the pain and suffering to which they contribute.”97 Thus, importing a mental element of intent – which the notion of “specific direction,” albeit technically within the domain of the actus reus, seemed to have done – would likely overcorrect and remove the criminal law’s ability to punish gravely anti-social behaviour that is as morally blameworthy. For example, where intent is interpreted as a conscious desire for a specific outcome, an Accused would escape liability in situations where he gives substantial military resources to an armed group, which he knows is systematically killing or persecuting civilians provided his conscious desire was something other than the commission of those actual offenses. An Accused might then easily claim that he was indifferent to the commission of crimes – perhaps even hostile, all other things being equal, to them – but continued to support a group because he was so overwhelmingly concerned about their military victory. A purpose requirement under aiding and abetting would thus seriously undermine the reach of international criminal law since it would allow those who fuel conflict through the provision of arms or other forms of assistance to military groups to escape liability provided they could show that, while perhaps indifferent to human suffering, they did not intend for it. A knowledge standard, on the contrary, manages to achieve the aims of international criminal law while not going so far as criminalizing unwitting or accidental assistance to a military group involved in committing crimes. Much like “substantial effect,” the scope of knowledge depends on the factual setting. Similar to the concept of crimes being “inextricably linked” with military operation, it will also be easier to find that an Accused acted with knowledge where the acts of the armed group receiving assistance are widely known to be systematically employing illegal tactics involving the commission of crimes against civilians. The mens rea tends to follow the actus reus, although of course knowledge of the commission of crimes by the recipient of the Accused’s assistance must still be proved. While it does not appear to be explicitly necessary to show that an Accused has knowledge of a recipient group’s “inextricable link” to the commission of crimes, it was an implied finding in Taylor. In that case, the TC held that Taylor had knowledge of the RUF’s Operational Strategy and that this Strategy was to systematically commit crimes against civilians.98 In coming to this conclusion, the TC relied on circumstantial evidence, described

97 Id. at ¶ 714 (Fisher, J., concurring). 98 Id. at ¶ 535. 260 Mégret and Anstis in more detail in our review of the case law, such as the fact that Taylor had been receiving regular security briefs which included details on the atrocities committed by the RUF as part of their Operational Strategy.99 By contrast, situations where there are sporadic or inconsistent reports about an armed group committing crimes against civilians – which is easily distinguishable from what arose in Taylor – will likely not give rise to sufficient knowledge. In such cases, it would be very difficult to demonstrate that an Accused had knowledge that his assistance would contribute to underlying crimes.

4.4 Principles of Personal Culpability The AC’s reasoning is convincing when considered in light of the nature of international criminal law. As the defense suggests in the Taylor appeal, it is likely true that some crimes will be committed in the process of ‘waging war.’ At the core of the concern that aiding and abetting is overbroad is the notion that because some crimes will be committed in armed conflict, any assistance towards groups involved in that conflict becomes criminal. This line of reasoning could potentially raise a problematic issue. Namely, does it mean an Accused is being held liable simply for associating with a group that engages in unlawful activities? This would seem to do away with the causation requirement. The focus on what is almost a group’s nature rather than its activities (even though the former is defined by the latter) may lead to some confusion. Indeed, if this were the standard, we would be dealing with an issue of organizational liability, and aiding and abetting would be reaching far beyond the appropriate boundaries. The AC in Taylor attempted to address the potentially blurry line between membership liability and personal liability. The AC’s reasoning clearly shows that assisting in the waging of a war in and of itself was not criminal behaviour; rather, it was the type of assistance engaged in by the Accused and the effect this had on the underlying crimes that gave rise to liability.100 Moreover, the

99 Id. at ¶ 538. 100 Id. at ¶ 445. In response to the arguments put forward by the defense, the AC in Taylor noted that “[w]hether, in the abstract, the commission of crimes in armed conflicts is possible, probable or certain is not relevant to and does not establish individual criminal liability under the law [. . .] The law requires that an accused must be aware, inter alia, of the consequence of his conduct, the essential elements of the crime, the concrete factual circumstances and the criminal intent, and it requires concrete knowledge or awareness on the part of the accused, not just an abstract awareness that crimes will be committed in the course of any armed conflict.” The Taylor Case 261 question is not whether a group is criminal per se but whether it typically commits international crimes. If a group’s military strategy is based on terrorizing civilians, it consequently becomes impossible for a third party not to support this behaviour. In this context, it seems possible to draw a distinction, without violating principles of personal culpability,101 between groups that primarily engage in legal means of warfare even though they may occasionally commit crimes, versus those that organize around the persecution of civilians. The old Nuremberg case law on criminal organizations (even though it was interested in the organizations qua organizations rather than the centre of gravity of their activities, as it were) might help characterize the problem. The International Military Tribunal was called upon to determine whether six indicted Nazi organizations were criminal organizations, which it defined in two parts. First, there had to be “[. . .] a group bound together and organized for a common purpose.” Second, the group had to be “[. . .] formed or used in connection with the commission of crimes denounced by the Charter.” The Tribunal eventually found that four organizations were criminal, namely the Leadership Corps, the Gestapo and the SD, and the SS. The Tribunal’s analysis demonstrated that an organization could be considered criminal despite performing certain activities that were not criminal in nature. For example, the Gestapo and SD also included a special unit tasked with border and customs issues. The Tribunal held that the special unit in question had been transferred to the Gestapo so late and it had participated so little in the overall activities of the organization, which were considered pre- dominantly criminal, that it should not be addressed in determining the criminality of the Gestapo and SD.102 This showed that in making a determination on the criminal nature of an organization, a Court could section off criminal versus non-criminal activities in an organization, and that even groups with some legitimate aims can be considered criminal where the overriding nature of their activities can be characterised as such. In fact, it is hard not to imag-

101 Quincy Wright, “The Law of the Nuremberg Trial,” 41 Am. J. Int. Law 38, 69 (1947). 102 The International Military Tribunal, Trial of the Major War Criminals Before the International Military Tribunal 264 (1947). Compare this treatment of the border and customs protection special unit to the treatment of another special unit, the Frontier Police or Grenzpolizei, which the Tribunal held had to be included in the analysis of criminality of the Gestapo and SD. The Tribunal noted that this unit, in addition to arresting people illegally crossing the border, could request to commit arrested persons to concentration camps and received directives from the Gestapo to transfer arrested foreign workers to these same camps. Id. 262 Mégret and Anstis ine certain criminal organizations engaging in some superficial legal activities (such as buying merchandise), without this changing anything to the overall diagnosis that their activities had long passed the tipping point by which they become inherently criminal. Overall, the notion of crimes being “inextricably linked” to the operational strategy of an armed group is a useful way of distinguishing culpable from non- culpable behaviour. Where the military operations of groups are both legitimate and illegitimate, and not simply “inextricably linked” to the commission of crimes, it will likely be very difficult to meet the evidentiary burdens under the “substantial effect” and knowledge standard, and thus criminal liability will not arise in the absence of specific evidence. Finally, one must bear in mind that if such a line could not be drawn, international criminal law – not to mention other well-established bodies of law such as international humanitarian law – would have a precarious future. As Judge Fisher wrote in his concurring opinion, while it is true that an Accused can provide assistance to a group that is engaged in both lawful and unlawful behaviour, “no system of criminal law excuses unlawful conduct because the Accused also engaged in lawful conduct.”103

5 Shifting the Debate: On the Possibility of Negligence Liability in International Criminal Law

The fairly evident knowledge that Taylor had of the crimes committed by the RUF means that aiding and abetting clearly served its purpose in this particular case. But what of a political leader, remote politically or geographically, who could show that he did not actually have knowledge of (nor was wilfully blind to) the crimes committed by a group he supported? We have in mind cases, like Taylor, where such an individual is not a commander or a superior whose liability might fall under command responsibility, and where the mens rea requirements of aiding and abetting may still prove too high an evidentiary hurdle. Might there be any logic in the international criminalization of behaviour that was bereft of a subjective mens rea but nonetheless, through its blatant negligence and delinquency, evidenced such a striking departure from the standards of good conduct as to deserve punishment? Such behaviour might be relatively rare in that international crimes are not like ordinary crimes and one typically has more opportunities of becoming aware of their existence (for the person committing manslaughter in domestic law, knowledge always comes too late)

103 Taylor, Case No. SCSL-03-01-A, Judgment at ¶ 713 (Fisher, J., concurring). The Taylor Case 263 and the way one’s behaviour contributes to them, but it would not be any less scandalous. As is well known, international criminal law has, for the most part, recoiled from the possibility of negligence liability for international crimes, i.e.: liability without a guilty mind.104 The concern is that individuals who are morally innocent (because they did not know, but also because they were in error or incapacitated in some way) should not be punished like those who had a morally culpable state of mind. At the same time, some authors have not hesitated to advocate for a degree of “normative harshness” that takes into account the “organizational control” of certain leaders and how it necessarily puts them on notice of the offences that might be committed by their organizations.105 Is there a way of reconciling the desire to sanction remote offenders who had a significant political role in the commission of crimes but may not have known of specific crimes, and principles of individual liability? In practice, subjective and negligence liability have been harder to dis- entangle than these clear doctrinal oppositions suggest. There are forms of liability that seem to import slightly less than knowledge or intent, such as superior responsibility and JCE.106 Under superior responsibility as spelled out in Article 7(3) of the ICTY Statute, a commander could theoretically be held liable for crimes committed by a subordinate in the absence of proof of knowledge of the subordinate acts. It suffices that he knew or had “reason to know.”107 Knowledge has been interpreted as either actual or constructive.108 The alternative of “had reason to know” has been contentious and further illustrates the tension in drawing the line between culpable and non-culpable behaviour. The ICTY AC eventually interpreted “had reason to know” as leading to criminal responsibility of a superior “only if information was available to him which would have put him on notice of offences committed by subordinates.” This, the ICTY noted, “is consistent with the customary law standard of mens rea as existing at the time of the offence charged in the indictment.”109

104 Roger S. Clark, “Drafting a General Part to a Penal Code: Some Thoughts Inspired by the Negotiations on the Rome Statute of the International Criminal Court and by the Court’s First Substantive Law Discussion in the Lubanga Dyilo Confirmation Proceedings,” 19 Crim. Law Forum 519, 525 (2008). 105 Mark Osiel, Making Sense of Mass Atrocity 107–08 (2009). 106 William A. Schabas, “Mens Rea and the International Criminal Tribunal for the Former Yugoslavia,” 37 N. Engl. Law Rev. 1014, 1025 (2003). 107 Id. 108 Kirsten M. F. Keith, “The Mens Rea of Superior Responsibility as Developed by ICTY Jurisprudence,” 14 Leiden J. Int. Law 617, 620 (2001). 109 Id. at 627. 264 Mégret and Anstis

Thus, it appears that some form of knowledge is required, which cannot simply be presumed from the commander’s position,110 and scholars have almost unanimously denied that command responsibility is or ought to be seen as a negligence liability.111 However, Article 28(a) of the Rome Statute seems to incorporate a negligence test.112 As for JCE, the Accused can be convicted not only for the crimes he committed or intended to commit, but also “for those committed by others that he or she did not specifically intend but that were a natural and foreseeable

110 Schabas, supra note 116 at 1028. 111 I. Bantekas, “The Contemporary Law of Superior Responsibility,” 93 Am. J. Int. Law 573 (1999); Y. S. Kang & T. Wu, “Criminal Liability for the Actions of Subordinates-The Doctrine of Command Responsibility and its Analogues in United States Law,” 38 Harv. J. Int. Law 272 (1997). 112 Article 28(a) of the Rome Statute provides that command responsibility arises for a military commander where they “either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit” crimes. Contrast this with Article 7(3) of the ICTY Statute which provides that command responsibility arises where the superior “knew or had reason to know that the subordinate was about to commit such acts (. . .).” This distinction and the relevant standards was briefly addressed by the ICC in a Trial decision in 2009. In The Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo, 15 June 2009 ICC-01/05-01/08, paras 429–434, http://www.icc-cpi.int/iccdocs/doc/doc699541.pdf, the ICC TC noted that Article 28(a) of the Rome Statute encompassed two standards of fault. The first required existing knowledge. The second standard, the TC held, was “a form of negligence” (para 429). That said, the TC went on to note that, while the ad hoc tribunals set out a different standard, the factors considered in interpreting “had reason to know” by those tribunals could “also be useful when applying the ‘should have known’ requirement” under Article 28(a) of the Rome Statute. Thus, the TC concluded, a superior could be “considered to have known” if, depending on the context of the case, “(i) he had general information to put on notice of crimes committed by subordinates or of the possibility of occurrence of the unlawful acts; and (ii) such available information was sufficient to justify further inquiry or investigation” (para 434). Superior responsibility as a negligence standard is not without its critics. For example, Elies van Sliedregt argued that superior responsibility should be interpreted as “a separate crime of negligence.” See Elies van Sliedregt, “Article 28 of the ICC Statute: Mode of Liability and/or Separate Offense?”, 12 New Crim. Law Rev. 420, 430 (2009). Similarly, Schabas suggested that the ICC would be forced to interpret superior responsibility as a separate crime with respect to specific intent crimes. He writes: “It is logically impossible to convict a person who is merely negligent of a crime of specific intent. Accordingly, the Court, if Article 28 of the Statute is to have any practical effect, will be required to convict commanders of a crime other than genocide, and one that can only be negligent supervision of subordinates who commit genocide.” Id. at 430 (citing Schabas). The Taylor Case 265 consequence of executing the crime that formed part of the collective or common purpose or enterprise.”113 This possibility, however, has been amply criticized as introducing an element of negligence liability in what should be the exclusive domain of mens rea liability.114 Some have argued – such as William Schabas – that “deviation from adherence to strict principles [of mens rea] may augment the chances of conviction but it can also threaten the Tribunal’s ability to fulfil its solemn goals.”115 In effect, it appears that JCE III is inapplicable under the Rome Statute,116 although it perhaps had the advantage of pointing to the intuitive blameworthiness of those who in a sense allow themselves to be put in situations where crimes are committed without their knowledge. In other words, whilst domestic law has long been marked by the development of negligence liability, no equivalent exists internationally to this day. It is not evident, however, that this should always be the case or that international criminal law should not aspire to complement its arsenal with negligence liability. The only question is in what way and at what cost. Let us begin

113 Schabas, supra note 116 at 1030–31. 114 G. P. Fletcher & J. D. Ohlin, “Reclaiming Fundamental Principles of Criminal Law in the Darfur Case,” 3 J. Int. Crim. Justice 539, 550 (2005). 115 Schabas, supra note 116 at 1036. 116 While an exhaustive debate on JCE III under the Rome Statue is beyond the scope of this paper, a number of scholars have provided insights into the applicability of this mode of liability outside the ad hoc tribunal context. See e.g., Jens David Ohlin, “Joint Criminal Confusion,” 12 New Crim. Law Rev. 406, 414, 419 (2009); Jens David Ohlin, “Joint Intentions to Commit International Crimes,” 11 Chi. J. Intl L. 693, 706 (2010) (Ohlin argued that JCE III does not apply under the Rome Statute); Kai Ambos, I: Foundations and General Part Treatise on International Criminal Law 172–174 (2013) (Ambos concludes that the State parties would have to include a corresponding provision in the Rome Statute for JCE III to be applicable). In Mbarushimana, the ICC Pre-Trial Chamber (PTC) noted that JCE and 25(3) (d) liability were “not identical, as similar as they may appear.” The PTC further held that the requirement of intentionality under article 25(3)(d), which Ohlin discussed in the context of JCE III, required that the Accused both “mean to engage in the relevant conduct that allegedly contributes to the crime” and “be at least aware that his or her conduct contributes to the activities of the group of persons for whose crimes he or she is alleged to bear responsibility.” This would appear to exclude the ad hoc tribunal formulation of JCE III. See The Prosecutor v. Mbarushimana, Case No. ICC-01/04-01/10, Decision on the Confirmation of Charges by the Pre-Trial Camber, ¶¶ 282, 288 (Dec. 16, 2011), http://www .icc-cpi.int/iccdocs/doc/doc1286409.pdf. However, a contrary opinion – although prior to Mbarushimana – has been expressed. Contra A. T. Cayley, “The Prosecutor’s Strategy in Seeking the Arrest of Sudanese President Al Bashir on Charges of Genocide,” 6 J. Int. Crim. Justice 829, 839 (2008) (Cayley argued that Al-Bashir could be convicted under an extended form of JCE under article 25(3)(a) of the Rome Statute). 266 Mégret and Anstis by pointing out that the problem seems to be by and large that we disprove of someone being condemned for genocide or crimes against humanity by negligence. Such offences, with their exceptional stigma and harsh penalties, appear to be reserved to those who had at least knowledge that they would be committed but nonetheless persisted in a course of action. There is a danger of trivialization of the more severe offences, and of excessive stigmatization of the lesser ones. By the same token, this is not to say that, for example, we find the person who neglects to inquire as to whether a group he is supporting (and a fortiori commanding) commits international crimes and is therefore unaware that it does (and who therefore cannot be convicted under aiding and abetting) is morally blameless. The source of the problem, then, may be a deficiency in our international legal vocabulary and the fact that we do not currently have a way of semantically distinguishing between the intentional commission of a crime against humanity and the negligent commission of such a crime without endan- gering the crucial distinction between subjective (based on a state of mind) and objective (based on departure from a standard of behaviour) offences. Domestically, however, different terminologies have been adopted to reflect the difference between the two in the case of culpable homicide. Most legal systems distinguish between murder and manslaughter. Calling and treating manslaughter like murder would be unjust to those who merely killed by negligence but would as a result be stigmatized as if they had deliberately killed someone; nonetheless, failing to condemn someone at all whose gross negligence caused the death of another can also be found wanting from the point of view of the legitimate goals of criminal justice and too indulgent to individuals who remain deeply at fault. Having two terms to describe a subjective and an objective mens rea homicide also makes it possible to condemn these offences differently: we evidently believe that the person who wilfully kills is more blameworthy, all other things being equal, than the one who kills merely by departing, even dramatically, from a standard of reasonable behaviour. This is then reflected in less stigma and punishment for the latter. We argue that an adequate differentiation in the labeling of negligence liability – making it a sui generis offence rather than a mode of imputation of liability for the graver offence, in the same way manslaughter is a specific crime and not a way of negligently committing murder – would go a long way to alleviating the problem of moral confusion and poor penal signalling that arises when behaviour that is not comparable is forcefully squeezed into the same category.117 One possibility is to reframe certain modes of imputation

117 Jens Ohlin raises a similar concern about a lack of differentiation between different subjective characterizations of criminal behaviour. In a recent article, he acknowledges The Taylor Case 267 liability that border on negligence liability (e.g.: command responsibility for what a commander “ought to have known”) not as leading to the commission of the underlying offence but as giving rise to a specific, sui generis offence. At least one author has made the argument that superior responsibility before the ICTY is already less a responsibility “for the crimes of one’s subordinates” (as if one had committed them as principal, as it were) but a “sui generis” responsibility “for failure to prevent or punish with regard to the crimes of the subordinate.”118 Perhaps a specific offence of “dereliction of duty” would convey that point even further. This does not exclude the possibility that command responsibility with knowledge would still be considered a form of accessory liability leading to a finding of commission of the international crime. Indeed, the emergence of negligence liability in international criminal law could considerably enrich its content and expand its reach, whilst safeguarding the centrality and specificity of subjective mens rea offences. Negligence- type offences would perform three purposes, all in furtherance of international criminal tribunals’ goals. First, it would highlight and condemn the behaviour of individuals whose role is central to the furtherance of violent conflicts, but who continue to escape liability because they do not fit the relatively narrow dominant model of intentional or knowing offence commission. Second, it would ensure that these individuals were convicted of offenses in a way com- mensurate with their moral fault and thus compatible with a desert theory of international criminal justice. As such, it might even help re-qualify certain forms of extended liability such as JCE as in effect sui generis negligence liability deserving the imposition of proportional punishment. Third, as discussed further below, it could have a real impact on the deterrent goals of international criminal law since such actors may be more responsive to criminal prosecutions. The key question is, of course, what negligence liability would cover exactly and how it might be referred to. Targeted behaviour could be that of an arms dealer who provides weapons to a group engaged in war crimes whilst failing to inquire about their respect for international humanitarian law, or criminal-

that there is no separate offence for an Accused who behaves recklessly in international criminal law. Recognizing the difficulties of creating a new offence, Ohlin suggests that the distinction between accessories and principals can assist in correcting this issue: a “second-best solution is to deny reckless perpetrators the status of principals, i.e. to deny them their status as full-blown principals.” He continues: “By downgrading their status to mere accomplices or accessories, you express the distinction between them and those who act with full-blow intent, a distinction that might normally be expressed in the form of a different offence for recklessness.” Ohlin, supra note 95 at 342. 118 Chantal Meloni, “Command Responsibility Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?”, 5 J. Int. Crim. Justice 619, 619 (2007). 268 Mégret and Anstis izing the corporate extraction of resources in areas where human rights abuses are rampant.119 In such cases, it is expected that the involvement in fuelling conflicts should come with a heightened vigilance that such actions may contribute to international crimes. A particular duty of care would arise therefore suggesting that, in a world of cosmopolitan duties, one simply cannot ignore the possibility that one’s actions would have criminal consequences. Of course, in many, if not most cases, the degree of negligence involved would come very close to recklessness or wilful blindness and would therefore be the closest thing to actual knowing or deliberate behaviour. The corresponding offence still needs to be invented but we suggest that it could be a form of “negligent endangerment” or international “dereliction of duty” in cases where a public or quasi-public responsibility already exists. The scope of negligence liability need not be infinite. Negligence liability can be limited by the provision of some type of defense. For example, in the case where an Accused head of state is being held negligently responsible, a defense could be crafted discharging liability where the Accused implemented structures of accountability to monitor and take action to aid in the prevention of war crimes by another group. Specific negligence offences would also require a proportionally reduced punishment. Negligence liability could further the deterrence goals of international criminal justice. Deterrence is a controversial subject in international criminal law because of the suspicion that international criminal law has been, so far, ineffective at actually deterring future crimes. One question that needs to be asked is whether international criminal law is ineffective as a deterrent because it targets people who are not prone to acting reasonably and thus would not be responsive to the threat of criminal punishment.120 It could be argued that individuals more remote from the commission of the underlying crimes and who are motivated by personal profit rather than political aims or self-preservation – such as arms dealers or foreign heads of state – might be more likely to act as rational actors. Such individuals would not be as prone to taking des- perate measures, such as killing civilians, in order to prevail in the conflict.121 Thus, a form of criminal responsibility capturing their particular form of delinquency whilst not unfairly magnifying it to the level of the underlying crimes

119 James Stewart discusses similar issues in the context of the Alien Tort Statute. For the most part, the aiding and abetting debate and the appropriate standard of knowledge has arisen in that context. Stewart, supra note 10. 120 Cronin-Furman, supra note 76. 121 Id. at 12. The Taylor Case 269 might actually lead such actors to think twice before engaging in certain activities or failing to take action. Overall, negligence liability would require that individuals who profit from war take certain steps to assure that their assistance does not go to the commission of crimes by the group receiving their assistance. This could theoretically have a tremendous impact on how modern war is waged and, consequently, might impact and further deterrence. In its broadest form, international criminal law could potentially be imposed as a means of regulating the process of war.

6 Conclusion

The Taylor AJ had an important impact on the law of aiding and abetting in international criminal law. It marked the first disagreement with the ICTY AC’s inclusion of “specific direction” as an element of aiding and abetting under international criminal law. It raised and addressed a number of important issues that had to be discussed in the process of circumscribing aiding and abetting liability. In particular, it raised the difficult issue of what mens rea is normatively appropriate for aiding and abetting as a mode of liability in international criminal law. This article used the Taylor decision as a launching point for a normative discussion of where international criminal law should draw the line between criminal and non-criminal behaviour of remote actors. It argued that the causality standard of “substantial effect” and the mens rea of knowledge are sufficient to ensure that potentially legal (or at least not criminal) behaviour – such as assisting a group in war – is not criminalized, while clearly illegal and criminal behaviour – such as providing arms to a group that routinely kills civilians as part of its military strategy – is. While the “specific direction” discussion has been the subject of much debate among international criminal law scholars, we suggested that the debate should take into account the possibility that negligence liability may be a legitimate, and important, avenue for finding criminal liability in international criminal law. The emergence of negligence liability in international law, whilst somewhat implausible at this current, relatively early, stage of the development of international criminal law, would manifest the emergence of a sophisticated and mature international society not only scandalized by horrendous deliberate behaviour but increasingly willing to set the boundaries of the reasonable and acceptable sort. Chapter 16 The Law and Politics of the Charles Taylor Case

Charles Chernor Jalloh

1 Introduction

The trial of the former president of Liberia, Charles Ghankay Taylor, by the United Nations-backed Special Court for Sierra Leone (“SCSL”), where our honoree (Justice Hassan B. Jallow) briefly served in the Appeals Chamber, was remarkable in at least four respects. First, it was the only case involving a non- Sierra Leonean before the SCSL. All the other men prosecuted by the tribunal were Sierra Leoneans. They were charged, tried, convicted, and sentenced for crimes that they planned and committed against their own people in their own home country. Taylor, on the other hand, was from neighboring Liberia where he is alleged to be responsible for even worse crimes than those for which he was eventually charged in Sierra Leone.1 But he, like all the other rebel leaders who participated in Liberia’s dirty war, was never prosecuted in his native country because the parties to that conflict effectively granted themselves amnesty.2 Rather, he was implicated by the SCSL for supporting Foday Sankoh, the leader of a rebel army called the Revolutionary United Front (“RUF”), to foment a war in Sierra Leone in which numerous serious atrocity crimes were committed. Sankoh and Taylor allegedly made “common cause”3 to help each other take over their respective countries for personal and political gain.

* For helpful comments on the first draft of this paper, the author is grateful to Bill Schabas, Meg deGuzman and Alpha Sesay. 1 2 Truth & Reconciliation Comm’n, Republic of Liber., Consolidated Final Report 151–72 (2009) [hereinafter Liberian TRC Report]. 2 The Liberian TRC Report listed eight leaders of warring factions, two of whom have died, and recommended that the living ones be prosecuted for committing atrocity crimes. Id. Taylor was at the top of the list. But an institutional mechanism for prosecution, similar to the one for Sierra Leone, has not to date been established in Liberia. Id. at 349. For an early scholarly work anticipating the need for criminal accountability in Liberia for serious international crimes and a proposal for the expansion of the SCSL’s jurisdiction to cover international crimes committed there, see Chernor Jalloh & Alhagi Marong, “Ending Impunity: The Case for War Crimes Trials in Liberia,” 1 Afr. J. of Legal Stud. 53, 70 (2005). 3 Prosecutor v. Taylor, Case No. SCSL-03-01-T, Trial Chamber Judgment, ¶¶ 23, 25 (Special Court for Sierra Leone May 18, 2012), http://www.scsldocs.org/documents/view/6662-19559

Second, as a criminal trial, the case against Taylor was inevitably complicated. He reportedly never set foot in Sierra Leone during the time the offenses for which he was charged were perpetrated.4 This meant that the prosecution’s burden to prove his case, when compared to the other SCSL cases, was going to be doubly difficult. Indeed, for most of the pre-trial and trial phases, the success of the case against Taylor appeared to hinge primarily on two expansive and controversial modes of criminal liability in international criminal law – Joint Criminal Enterprise (“JCE”)5 and command responsibility6 – neither of which requires the suspect to directly commit the acts in question. The task for the tribunal’s prosecutors was how, using those two and other forms of criminal participation such as instigating or ordering, they could link Taylor in Liberia to the offenses carried out by the RUF and its collaborators on Sierra Leonean territory. Interestingly, although they managed to secure Taylor’s conviction for planning and aiding and abetting crimes in Sierra Leone, the prosecution failed to prove JCE and command responsibility. The inference could thus reasonably be drawn that the prosecutors over played the centrality of his role in their narratives of the Sierra Leonean conflict.

[hereinafter Taylor Trial Judgment]. See also Prosecutor v. Taylor, Case No. SCSL-03-01-A, Appeals Chamber Judgment (Special Court for Sierra Leone Sept. 26, 2013), http://www.rscsl .org/Documents/Decisions/Taylor/Appeal/1389/SCSL-03-01-A-1389.pdf. Commentary on the Taylor trial in respect of specific issues began following the trial judgment in both the blogo- sphere and in academic journals. See, for examples of the latter, the thoughtful articles by Simon Meisenberg, Laurel Baig, Kai Ambos, Ousman Njikam, Kirsten Keith and Kevin Jon Heller all of whom participated in a special 2013 symposium issue on the Taylor Trial in the Journal of International Criminal Justice (Vol. 11, Issue 4). 4 “War Crimes Court Finds Charles Taylor Guilty,” Aljazeera (Apr. 27, 2012), http://www .aljazeera.com/news/africa/2012/04/201242693846498785.html. 5 For a critique of how the prosecution controversially pleaded JCE at the SCSL, see Wayne Jordash & Scott Martin, “How the Approach to JCE in Taylor and the RUF Case Undermined the Demands of Justice at the Special Court for Sierra Leone,” in The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law 96, 109–17 (Charles Chernor Jalloh ed., 2014). 6 See Harmen van der Wilt, “Command Responsibility in the Jungle: Some Reflections on the Elements of Effective Command and Control,” in The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law 144–158 (Charles Chernor Jalloh ed., 2014) and Sandesh Sivakumaran, “Command Responsibility in the Sierra Leonean Conflict,” in The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law 128–143 (Charles Chernor Jalloh ed., 2014). A provocative literary approach can be found in René Provost, “Authority, Responsibility, and Witchcraft: From Tintin to the SCSL,” in The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law 159–180 (Charles Chernor Jalloh ed., 2014). 272 Jalloh

Third, although Presidents Blaise Campaoré (Burkina Faso) and (the now late) Muammar Gaddafi (Libya) were apparently subjects of initial prosecutorial investigative interest for training, arming, and otherwise financially supporting the RUF,7 Taylor was the only sitting African president indicted by the SCSL (even though he was no longer in power when he was actually arrested, prosecuted and convicted).8 He was thus the first leader to be held criminally responsible for international crimes committed in another African State.9 This later served as fuel for his argument that his trial was political.10 Yet, the judges rejected his claim that the prosecution selectively and vindic- tively prosecuted him based on improper political motives and in order to simply advance the U.S. foreign policy interests in Africa. They also rejected the contention that he was discriminatorily singled out for prosecution, effectively painting his argument as an attempt to politicize his case and to deflect his own responsibility.11 All others tried by the SCSL were leaders of rebel, militia, or other organizations. But, the eight SCSL convicts drawn from the RUF,12 the Civil Defense Forces (“CDF”),13 and the Armed Forces Revolutionary Council

7 The Impact of Liberia’s Election on West Africa: Hearing Before the Subcomm. on Afr., Global Human Rights & Int’l Operations of the Comm. on Int’l Relations, 109th Cong. 150, 157 n. 11 (2006) (statement of David M. Crane, Former Chief Prosecutor, Special Court for Sierra Leone). 8 Crane has alleged that Gaddafi was an “unindicted co-conspirator” of Taylor’s and that he did not indict him and Campaoré only because of evidentiary issues. On top of that, indicting two more West African heads of state would have undermined the work of the Sierra Leone tribunal. The Prosecution later revealed that, in fact, it had less than a tenth of the evidence it had against Taylor against Gaddafi and Campaoré – hardly the basis for a strong case. See id. at 157 n. 11; Taylor Trial Judgment, supra note 3, ¶ 76. 9 “The Taylor Trial,” Special Court for Sierra Leone: Residual Special Court for Sierra Leone, http://www.rscsl.org/Taylor.html (last visited Mar. 1, 2015). 10 See Taylor Trial Judgment, supra note 3, ¶¶ 73–74. 11 Id. ¶¶ 81–84. 12 Prosecutor v. Sesay, Case No. SCSL-04-15-T, Judgment (Mar. 2, 2009), http://www.scsldocs .org/documents/view/5892-5892; Prosecutor v. Sesay, Case No. SCSL-04-15-T, Sentencing Judgment, (Apr. 8, 2009), http://www.scsldocs.org/documents/view/5930-5930; Prosecutor v. Sesay, Case No. SCSL-04-15-A, Judgment (Oct. 26, 2009), http://www.scsldocs.org/ documents/view/6098-6098. 13 Prosecutor v. Fofana, SCSL-04-14-T, Judgment, ¶¶ 1, 80–81 (Aug. 2, 2007), http://www .scsldocs.org/documents/view/4914-19301; Prosecutor v. Fofana, Case No. SCSL-04-14-T, Judgment on the Sentencing of Moinina Fofana and Allieu Kondewa, ¶¶ 59–63 (Oct. 9, 2007), http://www.scsldocs.org/documents/view/5001-5001; Prosecutor v. Fofana, Case Law and Politics of the Taylor Case 273

(“AFRC”)14 cases were part of the command structure of those entities. They each either committed the crimes personally or were found to have exercised de facto or de jure authority over the subordinates who perpetrated them. Thus, before Taylor’s arrest, the highest profile politician that the SCSL charged was the former deputy defense minister, Sam Hinga Norman (who later died before judgment was rendered).15 Taylor’s head of state status and the fact that he had, by the time of his indictment, gained notoriety for the abuses that his forces committed against civilians in Liberia where he ascended to the presidency in August 1997,16 made him the most “famous” person before the SCSL. As the perceived “godfather” of the RUF, the stature of Taylor’s case grew after Sankoh and his ruthless number two, Sam “Mosquito” Bockarie, died before they could be tried.17 In other words, with the apex of the rebel organization unavailable due to Sankoh and Bockarie’s deaths, Taylor became the last person standing. He inevitably gained in symbolic importance as a figure – rightly or wrongly – the prosecution could exaggeratingly blame most of the RUF depravations even though the Office of the Prosecutor was ultimately unable to prove beyond a reasonable doubt that – as William Schabas aptly put

No. SCSL-04-14-A, Judgment, ¶ 8 (May 28, 2008), http://www.scsldocs.org/documents/ view/5564-15137. 14 Prosecutor v. Brima, Case No. SCSL-04-16-T, Judgment, ¶¶ 164–72 (June 20, 2007), http:// www.scsldocs.org/documents/view/4852-12711; Prosecutor v. Brima, Case No. SCSL-04- 16-T, Sentencing Judgment, ¶¶ 88, 108, 116, 135 (July 19, 2007), http://www.scsldocs.org/ documents/view/4895-12838; Prosecutor v. Brima, Case No. SCSL-2004-16-A, Judgment, ¶¶ 7–8 (Feb. 22, 2008), http://www.scsldocs.org/documents/view/5315-14250. 15 Prosecutor v. Norman, SCSL-04-14-T, Decision on Registrar’s Submission of Evidence of Death of Accused Samuel Hinga Norman and Consequential Issues, ¶¶ 13–18 (May 21, 2007), http://www.scsldocs.org/documents/view/4774-4774 (finding that the Court lost its jurisdiction over Norman and that the case against him was legally extinguished or terminated upon his death). Norman’s trial was controversial amongst the SCSL judges as well elsewhere. See Lansana Gberie, “The Civil Defense Forces Trial: Limit to International Justice?”, in The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law 624–641 (Charles Chernor Jalloh ed., 2014). 16 Taylor Trial Judgment, supra note 3, ¶ 8. 17 Though Sankoh died in custody of natural causes on July 9, 2003, Bockarie was murdered, allegedly on Taylor’s orders on May 5, 2003. This led to the withdrawal of their SCSL indictments in December 2003. Prosecutor v. Sankoh, Case No. SCSL-2003-02-PT, Withdrawal of Indictment (Dec. 8, 2003), http://www.scsldocs.org/documents/view/1093- 1093; Prosecutor v. Bockarie, Case No. SCSL-2003-04-PT, Withdrawal of Indictment (Dec. 8, 2003), http://www.scsldocs.org/documents/view/1094-1094. See also “Profile of Republic of Sierra Leone,” U.S. Dep’t of State, http://www.state.gov/outofdate/bgn/sierraleone/82282 .htm (last updated Mar. 2007). 274 Jalloh it – Taylor was the “guiding spirit,” “evil genius,” or “mastermind” who “manipu- lated the war throughout the 1990s.”18 Finally, in a still controversial decision that made his case even more unique amongst the SCSL trials, Taylor was the only suspect tried in the heart of Europe at The Hague in the Netherlands, away from the seat of the tribunal in Freetown, Sierra Leone.19 The decision to change the venue of his trial was taken ostensibly for security reasons.20 Some critics, especially many from the local civil society, including myself, vehemently contested this rationale.21 We argued that Taylor – who was no longer in power – could not be a threat to an entire sub-region, and that even if he was, it would have been far better, and certainly less costly, for security to be bolstered in Sierra Leone and Liberia rather than move the SCSL’s most important case away from the alleged victim communities most affected by his crimes.22 Similarly, Taylor was the only SCSL convict to be imprisoned outside Africa – in the United Kingdom – where he is as of this writing serving a fifty-year sentence.23 In contrast, all the others

18 William A. Schabas, “Charles Taylor Judgment Suggests a More Modest Level of Participation in the Sierra Leone Conflict,” PhD Studies in Human Rights (Apr. 28, 2012), http://humanrightsdoctorate.blogspot.com/2012/04/charles-taylor-judgment-suggests- more.html. 19 See “The Prosecutor vs. Charles Ghankay Taylor: Transfer of the Trial to The Hague,” Special Court of Sierra Leone: Residual Special Court for Sierra Leone, http://www.rscsl .org/Taylor.html (last visited Mar. 1, 2015). 20 Press Release, Special Court for Sierra Leone, Special Court President Requests Charles Taylor be Tried in The Hague (Mar. 30, 2006) (on file with the Press and Public Affairs Office of the Special Court for Sierra Leone). 21 See, e.g., Prosecutor v. Taylor, Case No. SCSL-2003-01-PT, Civil Society Amicus Curiae Brief Regarding Change of Venue of Taylor Trial Back to Freetown, ¶¶ 3–4, 13 (Mar. 9, 2007), http://www.scsldocs.org/documents/view/4652-4652. 22 See Taylor, SCSL-2003-01-PT, ¶¶ 13–16 (pointing out correctly that Taylor had resided in Nigeria freely, before his arrest and transfer to the SCSL, and that both the legislative and executive branches of the Sierra Leonean government and civil society preferred his trial in Sierra Leone; further highlighting that no public evidence had been produced to justify labelling him a threat to security in West Africa). 23 See Charles C. Jalloh, “Prosecutor v. Taylor Case Report,” 108 Am. J. Int’l L. 58, 58 (2014). Taylor’s recent request to be moved from the United Kingdom to Rwanda was denied by the Residual Special Court for Sierra Leone. See In the Matter of Charles Ghankay Taylor, Case No. SCSL-03-01-ES, Decision on Public with Public and Confidential Annexes Charles Ghankay Taylor’s Motion for Termination of Enforcement of Sentence in the United Kingdom and for Transfer to Rwanda (Jan. 30, 2015), http://www.scsldocs.org/ documents/view/9091. Law and Politics of the Taylor Case 275 prosecuted by the SCSL for atrocity crimes were detained in Rwanda.24 Taylor’s repeated requests to be sent to Kigali or somewhere else in Africa for family reasons, cultural affinity, and other similar considerations have not gained any traction. For this reason, absent a fundamental change of circumstances, he will most likely live the remainder of his natural life in Britain. This chapter, which is befitting to include in this work given Justice Hassan B. Jallow’s service and contributions as a judge of the SCSL Appeals Chamber, examines the law and politics of the trial of former Liberian president Charles Taylor. The paper is intended to introduce non-experts to the case involving one of Africa’s most notorious warlords and its controversies. Towards that end, it aims to offer the first complete assessment of the trail of legal and political controversies that came to characterize this high profile international trial from the premature release of a sealed indictment for Taylor by SCSL prosecutors in summer 2003 through to the disposition of final appeals in fall 2013. It exposes and analyzes key legal, practical and other challenges that should offer lessons for the prosecution of current or former heads of state in other international criminal courts. Furthermore, because the chapter comes from an insider who was privileged to work as court-appointed duty counsel during the opening of this fascinating case, it is submitted that it makes an original and substantial contribution to the international criminal law literature. Although not without its difficulties, many of which will be discussed later on, the Taylor trial was the jewel in the SCSL’s crown. It is also one of the most symbolically important cases in modern international criminal law. The reason is simple. Prior post-Nuremberg attempts to prosecute heads of state or government by the ad hoc International Criminal Tribunals for the former Yugoslavia (“ICTY”) and Rwanda (“ICTR”) and the permanent International Criminal Court (“ICC”) have implicated political figures of a similar standing. But almost all those trials have been marred by practical issues, procedural irregularities, or other obstacles. Some of the cases faltered because states lacked the political will to arrest the suspect (as in the ICC indictment of President Omar Al

24 On October 31, 2009, all eight SCSL convicts were transferred to Mpanga Prison, just outside Rwanda’s capital Kigali, to serve their punishment. Since then, there have been several contempt cases prosecuted by the SCSL. In the few instances resulting in convictions and jail time in the cases involving witness tampering, the convicts have served their sentences in Sierra Leone. This explains the qualifier. See generally, Press Release, Rwanda Ministry of Info., Sierra Leone Special Court Convicts Arrive in Rwanda to Begin Prison Sentence (Oct. 31, 2009), available at http://www.rscsl.org/Clippings/2009/2009-11/pc 2009-11-2.pdf. 276 Jalloh

Bashir of Sudan);25 or after entering into a plea bargain with the ICTR prosecution, the accused tried to recant his guilty plea (Rwandan Prime Minister, Jean Kambanda);26 or the defendant died before his judgment was rendered (former Yugoslav President, Slobodan Milošević, at the ICTY).27 In contrast, with the exception of a major hiccup at the beginning of his trial and another which bookended its completion, the Taylor trial proceeded smoothly. Today, despite the fact that each stage of his indictment, trial, and conviction was marked by high legal and political drama, the Taylor case stands as one of the better examples of a complex but successful trial of a former head of state by a modern international criminal court. This underscores the wider significance of the trial, and makes it even more worthy of further inquiry by international criminal lawyers. The successful completion of the Taylor case is in many ways a credit to a range of actors, who acted locally and globally: from the SCSL itself to the government and people of Sierra Leone, and from foreign governments such as Liberia, the United States, Netherlands and Great Britain through to the United Nations and local African and international civil society. The latter became the champion of the victims of the Sierra Leone conflict, refusing to stand by and let the Taylor trial be bargained away for reasons of political expediency, a possibility that seemed real when he was offered asylum in Nigeria with the blessings of African leaders and powerful western states in return for his resignation from the presidency of Liberia.28 His trial is a testament to the potentially valuable role that international criminal tribunals can make to the enhancement of regional and global security, especially in the aftermath of horrific conflict and mass atrocity. The chapter opens with a brief background into the origins and rise of Charles Taylor in Part II. Part III then discusses how Taylor got enmeshed in the Sierra Leone conflict. This later led to his downfall, including his indictment, arrest, and prosecution by the SCSL for the commission of war crimes, crimes against humanity, and other serious violations of international humanitarian law, as discussed in Parts IV, V and and VI. In Part VII, I conclude by summarizing my

25 See Prosecutor v. Al Bashir, Case No. ICC-02/05-01/09, Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, ¶¶ a–c (Apr. 9, 2014), http://www.icc-cpi.int/iccdocs/doc/doc1759849.pdf. 26 See Prosecutor v. Kambanda, Case No. ICTR 97-23-S, Judgment and Sentence, ¶¶ 34–46 (Sept. 4, 1998), http://www.unictr.org/sites/unictr.org/files/case-documents/ictr-97-23/ trial-judgements/en/980904.pdf; see also Kambanda v. Prosecutor, Case No. ICTR 97-23-A, Judgment, ¶¶ 49–95 (Oct. 19, 2000), http://www.unictr.org/sites/unictr.org/files/case- documents/ictr-97-23/appeals-chamber-judgements/en/001019.pdf. 27 Press Release, Statement by the ICTY Prosecutor, The Hague (Mar. 11, 2006). 28 See Taylor Trial Judgment, supra note 3, ¶ 9. Law and Politics of the Taylor Case 277 key arguments and step back and reflect on the wider implications of his case for the SCSL and international criminal justice more generally.

2 The Origins and Rise of Charles Taylor

Although he had briefly held a position as a senior government bureaucrat in Liberia, hardly anyone outside Taylor’s home country knew of him before 1989. He was virtually unknown among the public in Sierra Leone. Yet, in the span of a few years, his name was to be etched into the consciousness of all Sierra Leoneans as the rebel leader from neighboring Liberia who threatened that “Sierra Leone would taste the bitterness of war.”29 In making good on that threat, he subsequently helped to bring a vicious war to Sierra Leone. To Liberians, he moved from being a somewhat known politically ambitious figure in exile to either a loved or hated rebel leader, and eventually, democratically elected president. Born in the small town of Arthington, Montserrado County, in northwestern Liberia on January 28, 1948, Taylor by his own account came from a modest background.30 He hailed from a large family, the third of eleven children, born to a mother who was a former girl servant and a father who was a Baptist school teacher.31 He began his early career following in the footsteps of his father as a teacher.32 However, he quickly moved on to become an accountant.33 He then pursued tertiary training at two small private colleges in Massachusetts, United States, where he received an associate degree in accounting in 1974 and a bachelor’s degree in economics in 1976.34 In the eight years between his arrival in the United States in 1972 and his return to Liberia in 1980, Taylor and several of his Liberian compatriots founded the Union of Liberian Associations in the Americas (“ULAA”).35 The apparent goal of the

29 See id. ¶ 2335 (Although Taylor denied making this infamous statement during his trial, the Trial Chamber found otherwise. That this phrase, which is recalled by many Sierra Leoneans, captured the national imagination is proved by the fact that it is usually repeated either verbatim or in essentially the same formulation). 30 Id. ¶ 3. 31 Id.; Transcript of Record at 24357–59, Prosecutor v. Taylor, SCSL-03-01-T, Trial (July 14, 2009) [hereinafter Transcript of Record – July 14, 2009], available at http://www.scsldocs .org/transcripts/Charles_Taylor/2009-07-14/21666. 32 Taylor Trial Judgment, supra note 3, ¶ 4. 33 Id. 34 Id. 35 Id. ¶ 5. 278 Jalloh

ULAA, which exists to this day, was to help bring about peaceful and democratic change in Liberia.36 Taylor’s foray into helping create the ULAA while studying in the United States appears to mark the beginning of his planned involvement with Liberian politics. He assumed the ULAA chairmanship in 1979.37 In that capacity, and at the invitation of the government of President William Tolbert, he returned to Liberia in January 1980.38 His arrival coincided with the successful coup d’état by Master Sergeant Samuel Kanyon Doe just four months later.39 Taylor joined the Doe government as a Director General of the General Services Administration and Deputy Minister of Commerce.40 About three years later, he abandoned that junior cabinet position after the Doe regime charged him with embezzlement.41 He fled to the United States where he was arrested in June 1984, following an extradition request by Liberian authorities.42 He was held, pending return to his native country, until November 1985, when he allegedly escaped from prison and returned to West Africa.43 Taylor’s version of that account is that he was released from the Plymouth County House of Correction by American officials.44 They looked the other way while he left the country, via Mexico, a story that initially appeared to be corroborated by documents obtained under a freedom of information request by The Boston Globe newspaper but that now seems to have been disavowed by the reporter who broke the story.45 In any event, it seems plausible that it was with the blessings of the U.S. government, which was embarrassed by reports of corruption in Liberia and the Doe government’s flagrant violations of human rights, that he returned to West Africa to effect a regime change.46

36 Id. The ULAA website can be found here: http://ulaalib.org/. 37 Id. 38 See id. ¶ 6; Transcript of Record – July 14, 2009, supra note 31, at 24384–85. 39 Taylor Trial Judgment, supra note 3, ¶ 6. 40 Id. 41 Id. 42 Id. 43 Taylor Trial Judgment, supra note 3, ¶¶ 6–7. 44 Transcript of Record at 24517–20, Prosecutor v. Taylor, SCSL-03-01-T, Trial (July 15, 2009) [hereinafter Transcript of Record – July 15, 2009], available at http://www.scsldocs.org/ transcripts/Charles_Taylor/2009-07-15. 45 Bryan Bender, Former Liberian Dictator Charles Taylor had US Spy Agency Ties, Boston Globe, Jan. 17, 2012, http://www.bostonglobe.com/metro/2012/01/17/mass-escapee- turned-liberian-dictator-had-spy-agency-ties/DGBhSfjxPVrtoo4WT95bBI/story.html. 46 See Transcript of Record – July 15, 2009, supra note 44, at 24517–23. Law and Politics of the Taylor Case 279

Be that as it may, after leaving the United States, Taylor and several others founded the National Patriotic Front of Liberia (“NPFL”) in Côte d’Ivoire.47 The NPFL took advantage of the mounting disaffection with the Doe dictator- ship and the Liberian government’s ruthless crushing of the coup by Thomas Quiwonkpa to attract many dissident fighters to its cause.48 The NPFL opera- tives subsequently took up military training in Libya in 1987.49 They thereafter returned to the sub-region via Burkina Faso.50 With the launch of a military attack from the Ivorian side of the border into the town of Butoa in Liberia on December 24, 1989, Taylor and approximately one hundred “special forces,” set off a civil war that would eventually engulf Liberia and several countries in the Mano River basin of West Africa, including Sierra Leone, Guinea, and Côte d’Ivoire itself, which had served as the launching pad for the initial NPFL incursion into Liberia.51 Within a few months, Taylor and his fighters marched from the Liberia- Côte d’Ivoire border to the capital Monrovia, recruiting many anti-Doe activists to the NPFL.52 However, it was a splinter group, the Independent National Patriotic Front of Liberia led by Prince Johnson, not the NPFL, which eventually caught and savagely tortured and murdered Doe in early 1990.53 In the meantime, in the regions of the country that the NPFL forces captured, Taylor and his followers established the National Patriotic Reconstruction Assembly government.54 He served as head of that government until 1996, when the first Liberian civil war ended with the conclusion of the Abuja Accord in 1996, and democratic elections were subsequently held.55 Taylor, running as the National Patriotic Party candidate in July 1997, won the presidential elections reportedly with 75% of the vote and two-thirds of the seats in the legislature.56 The official vote count was never formally released.57 But Taylor’s apparent electoral triumph and assumption of power in August 1997 did not restore peace to Liberia. Partly because of his policies, including

47 Taylor Trial Judgment, supra note 3, ¶¶ 7, 22. 48 Liberian TRC Report, supra note 1, at 152. 49 Taylor Trial Judgment, supra note 3, ¶ 7. 50 Transcript of Record at 24592–93, Prosecutor v. Taylor, SCSL-03-01-T, Trial (July 16, 2009), available at http://www.scsldocs.org/transcripts/Charles_Taylor/2009-07-16. 51 Id. at 24603–08. 52 Liberian TRC Report, supra note 1, at 158. 53 Id. at 158. 54 Id. at 157. 55 Taylor Trial Judgment, supra note 3, ¶ 8. 56 Liberian TRC Report, supra note 1, at 164. 57 Id. 280 Jalloh his failure to smoothly transition from rebel in the bush to chief of state occupying the presidential Executive Mansion, Liberia foundered.58 According to the Liberian Truth and Reconciliation Commission, the reality of his election as head of state did not dawn early enough on Taylor for him to succeed.59 He carried on the usual “antics” of a “warlord,” adopting disastrous policies that antagonized key domestic, regional and international constituencies.60 His “authoritarian” rule was marked by “poor governance, administrative mal- feasances, corruption, intimidation and intolerance of opposition, threats, torture, terroristic acts,” and routine extrajudicial and summary executions.61 This would later give rise to Liberia’s second war. The conflict only ended after Taylor was forced to step aside, largely due to developments in neighboring Sierra Leone.

3 The Fall of Charles Taylor

3.1 Sankoh, Taylor, and the Origins of the Sierra Leone Civil War Ironically, Taylor did not fall from grace because of his war making in his native Liberia. Instead, it was his meddling in Sierra Leonean affairs that ultimately led to his downfall. That involvement originated from his association with RUF Leader, Sankoh, whom he met in Libya. They agreed to help each other’s projects to take over Liberia and Sierra Leone respectively.62 Indeed, according to the Sierra Leone Truth and Reconciliation Commission, when Taylor’s forces first invaded Liberia in December 1989, the NPFL included many Sierra Leonean fighters in its ranks.63 Sankoh, who was one of them, was a key commando.64 He helped plan and carry out attacks against strategic Liberian government military positions.65 He thus put his Libyan guerilla training to use in anticipation of his war in Sierra Leone.66 He would bank on Taylor to return the favor just a few years later, and as a part of this, shared with the NPFL a captured Armed Forces of Liberia military camp, Camp Naama, to train around

58 Id. at 164. 59 Id. 60 Id. 61 Id. at 167. 62 3 “A Witness to Truth: Rep. of the Sierra Leone Truth and Reconciliation Comm’n” 97 (2004) [hereinafter Sierra Leone TRC Report]. 63 Id. at 94–95. 64 Id. at 100. 65 Id. 66 Id. at 101. Law and Politics of the Taylor Case 281 three hundred RUF fighters known as Vanguards.67 The Vanguards later played a pivotal role in the Sierra Leonean conflict. Sam Bockarie, Issa Sesay, Morris Kallon, and Augustine Gbao were Vanguards, all of whom – along with Sankoh and Taylor – were later charged by the SCSL.68 Similarly, on March 23, 1991, a group of between forty and sixty fighters attacked the remote village of Bomaru in the Kailahun District in eastern Sierra Leone near the Liberian border. The bulk of the attackers were drawn from the NPFL.69 Indeed, it was apparently a matter of frustration for Sankoh that, even after grandly claiming responsibility for the Bomaru attack on the BBC Radio as the first salvo of the RUF, which at that point had issued an ultimatum to then-Sierra Leonean President, Joseph S. Momoh, to leave power or face a revolt, the government in Freetown attributed responsibility for the invasion solely to Taylor and the NPFL.70 The Momoh government, which had permitted the Economic Community of West African States (“ECOWAS”) fighter jets to bomb NPFL positions in Liberia from the Lungi International Airport near Freetown, the Sierra Leonean capital, ignored the RUF for a long time before it formally recognized it as an independent force to reckon with.71 To the Momoh government, the RUF was in effect the Sierra Leonean wing of the NPFL.72 In retrospect, with the subsequent findings of the SCSL in its judgments and the work of the Sierra Leonean and Liberian truth commissions, this might have been an exaggeration. Nevertheless, throughout much of the Sierra Leone war, Taylor and Sankoh rebels collaborated even if they had different agendas. For Taylor, the military and political alliance with the RUF helped to not only achieve tactical objectives such as fighting common enemies in Sierra Leone, including dissident Liberian groups such as ULIMO-J and ULIMO-K that had organized against him with the Momoh government’s

67 Taylor Trial Judgment, supra note 3; Sierra Leone TRC Report, supra note 62, at 101–02. 68 See “The Prosecutor vs. Issa Hassan Sesay, Morris Kallon and Augustine Gbao,” Special Court for Sierra Leone: Residual Special Court for Sierra Leone, http://www .rscsl.org/RUF.html (last visited Mar. 1, 2015). 69 Sierra Leone TRC Report, supra note 62, ¶¶ 112, 120–21; Taylor Trial Judgment, supra note 3, ¶ 2378 (concluding the “[t]he evidence unequivocally establishes that NPFL soldiers constituted the large majority of the invasion force on Sierra Leone”). 70 Taylor Trial Judgment, supra note 3, ¶ 27. 71 Sierra Leone TRC Report, supra note 62, ¶ 40; see id. ¶ 113. This seems to have justified, in Taylor’s mind, retaliation against Sierra Leone in addition to the fact that the government supported and armed Liberian dissidents to form groups to fight against the NPFL. Id. ¶ 41, 45. 72 See Michael S. Kargbo, British Foreign Policy and the Conflict in Sierra Leone, 1991–2001, 20–21 (Peter Lang AG, Int’l Academic Publishers eds., 2006). 282 Jalloh help,73 but it also enabled him to exploit the country’s diamonds for private accumulation.74 The RUF, which often captured territory and mined diamonds with forced civilian labor, exchanged its precious stones for arms primarily through Monrovia.75 Liberia, which was not a country particularly well-known for diamonds, saw a remarkable increase in its official diamond exports.76 Those exports might have since suffered a dramatic drop. In its heyday, much of the profits from the lucrative diamond trade allegedly went to Taylor.77 By the time he became president, he extended his influence into several areas of the Liberian private sector including exploitation of natural resources, such as timber.78 By the end of the 1990s, Monrovia had become a haven for many other illicit activities involving drug, gun, and diamond runners using the capital as their home base.79 During the early part of the Sierra Leone conflict, until the Liberian fighters and the Sierra Leonean rebels fell out and turned on each other sometimes because of sharp disagreements on the means and methods of warfare, the NPFL forces reportedly carried out much of the atrocities against civilians in

73 See Taylor Trial Judgment, supra note 3, ¶¶ 30–31, 33–34. 74 See Janna Lipman, Charles Taylor’s Criminal Network: Exploiting Diamonds and Children, 4, 6, 9, 12, 15, (Louise Shelley ed., 2009), available at http://traccc.gmu.edu/pdfs/student_ research/Lipman_PUBP_710_TOC_Taylor%27s_Diamonds_and_Children_FINAL.pdf. See generally Iryna Marchuk, Confronting Blood Diamonds in Sierra Leone: The Trial of Charles Taylor, 4 Yale J. Int’l Aff. 87, 87–89 (2009). 75 See Ian Smillie et al., The Heart of the Matter- Sierra Leone, Diamonds and Human Security 6, 47 (Partnership Africa Canada ed., 2000). See generally U.N. S.C., Report of the Panel of Experts Appointed Pursuant to Security Council Resolution 1306, Paragraph 19, in Relation to Sierra Leone, U.N. Doc. S/2000/1195 (Dec. 20, 2000). 76 Smillie, supra note 75, at 48. See also 3 Mersie Ejigu, Post Conflict Liberia: Environmental Security as a Strategy for Sustainable Peace and Development, Fess Working Papers (2006), available at http://www.fess-global.org/WorkingPapers/post_conflict_liberia.pdf. See generally Report to the Minister of Foreign Affairs, the Honorable Lloyd Axworthy, P.C. M.P. from David Pratt, M.P., Nepean-Carleton, Special Envoy to Sierra Leone, Sierra Leone: The Forgotten Crisis (Apr. 23, 1999). 77 Smillie, supra note 75, at 48. 78 “Global Witness, Timber, Taylor, Soldier, Spy: How Liberia’s Uncontrolled Resource Exploitation, Charles Taylor’s Manipulation and the Re-recruitment of Ex-combatants are Threatening Regional Peace” 6, 12 (June 2005) (submitted to the U.N. Security Council), available at https://globalwitness.org/sites/default/files/import/TimberTaylorSoldierSpy .pdf. 79 Abdul Tejan-Cole, “A Big Man in a Small Cell: Charles Taylor and the Special Court for Sierra Leone,” in Prosecuting Heads of State 205, 209 ( Ellen L. Lutz & Caitlin Reiger eds., 2009). Law and Politics of the Taylor Case 283

Sierra Leone.80 Indeed, it is estimated that up to 1,600 of the 2,000 fighters comprising the initial invasion force from Liberia were NPFL rebels.81 Together with their RUF collaborators and a smaller cadre of combatants from Burkina Faso, Ivory Coast, and Gambia, they used tactics of terror and not only murdered and raped, but also amputated civilians, including babies as young as six months old.82 With Taylor’s human, material, and other logistical support, and the successive Sierra Leonean government’s inept handling of the war, the rebels quickly captured much territory in the two war fronts that they had opened in eastern and southern Sierra Leone.83 Soon, although their fortunes changed sometimes, the RUF had the upper hand. The NPFL and RUF fighters also burned villages and looted property.84 The catalogue of their hair-raising horrors included alleged acts of cannibalism, decapitation of civilians, forced enlistment and drugging of children to fight, the use of human entrails at check points, and the slitting open of pregnant women to settle bets on the sex of the fetus.85 By the time the Sierra Leone conflict was formally declared over in January 2002, it was estimated that approximately 75,000 people had been killed, thousands more victimized, and hundreds of thousands more displaced.86 Even the

80 Sierra Leone TRC Report, supra note 62, ¶¶ 239–42. See also Taylor Trial Judgment, supra note 3, ¶ 32. 81 Sierra Leone TRC Report, supra note 62, at 120. 82 Catherine E. Bolten, “The Memories They Want. Autobiography in the Chaos of Sierra Leone,” 44 Ethnologie francaise 429, 430 (2014), available at http://kroc.nd.edu/sites/ default/files/EF-published%20article.pdf. 83 See “Chronology of Sierra Leone: How Diamonds Fuelled the Conflict,” Afr. Confidential, Apr. 1998, available at http://www.africa-confidential.com/special-report/id/4/ Chronology_of_Sierra_Leone. 84 Jamie O’Connell, “Here Interest Meets Humanity: How to End the War and Support Reconstruction in Liberia, and the Case for Modest American Leadership,” 17 Harv. Hum. Rts. J. 207, 213 (2004). 85 See id. at 214. 86 J. Andrew Grant, “Salone’s Sorrow: The Ominous Legacy of Diamonds in Sierra Leone,” in Resource Politics in Sub-Saharan Africa 251, 252 (Matthias Basedau & Andreas Mehler eds., 2005). Statistics are hard to come by, and of what there is, there is conflicting information. A leading American human rights NGO has estimated the total number of deaths at 50,000 while the number of displaced was put at 1 million. See Human Rights Watch, Sierra Leone – Getting Away with Murder, Mutilation, Rape: New Testimony from Sierra Leone, HRW Report, July 1999. A U.N. Report estimated 70,000. See also Mary Kaldor & James Vincent, U.N. Dev. Program Evaluation Office, Case Study: Sierra Leone: Evaluation of UNDP Assistance to Conflict-Affected Countries (2006). I opted for the 70,000 figure in the U.N. report in Charles C. Jalloh, Assessing the Legacy of the Special Court for Sierra Leone, 284 Jalloh belated comer to the Sierra Leone conflict, the U.N. Security Council, passed a Chapter VII resolution deploring Liberia’s active support of the RUF war.87 It determined that Taylor’s assistance to the RUF constituted a threat to international peace and security and thereafter imposed sanctions on Liberia.88 Following two successive coups in Freetown, first by the National Provisional Ruling Council (“NPRC”) in April 1992 under Captain Valentine Strasser, and later by Lt.-Colonel Julius Maada Bio in 1996, a transitional democratic election was held in Sierra Leone.89 The RUF was invited to participate but declined, preferring instead to continue the war and to punish civilians through a savage amputation campaign dubbed “Operation Stop Election.”90 Ahmed Tejan Kabbah, a retired Sierra Leonean bureaucrat from the United Nations who contested as the Sierra Leone People’s Party candidate, won.91 His main campaign promise was to end the war,92 music to the ears of the war weary population. Kabbah immediately set about negotiations with the RUF. With the facilitation of the Ivorian government, which played host to the first serious ceasefire talks between the government and the rebels, he concluded the Abidjan Accord on November 30, 1996.93 The agreement called for a cessation of hostilities, granted status of political movement to the RUF and its members and a limited amnesty against prosecutions as well as foreshadowed the need for a national unity and reconciliation commission.94 But even though some felt that this would mark the end of the war, that accord proved to be a ploy for Sankoh to regroup and rearm his men who were, at the time, close to military defeat with the help of South African mercenaries – as President Kabbah

in The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law 5, 1–19 (Charles C. Jalloh ed., 2014). 87 S.C. Res. 1343, para. 2, U.N. Doc. S/RES/1343 (Mar. 7, 2001). 88 Id. paras. 5–6. 89 Taylor Trial Judgment, supra note 3, ¶¶ 31, 39–40. 90 Id. ¶ 39. 91 Taylor Trial Judgment, supra note 3, at 40; see March 1996, Sierra Leone News, http://www .sierra-leone.org/Archives/slnews0396.html (last visited Mar. 1, 2015). 92 See Taylor Trial Judgment, supra note 3, ¶ 40; see also March 1996, supra note 91. 93 Taylor Trial Judgment, supra note 3, ¶ 40. 94 Peace Agreement between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone, R.U.F.-S.L., art. 1, 13–14, Nov. 30, 1996, available at http://www.sierra-leone.org/abidjanaccord.html. Law and Politics of the Taylor Case 285 lamented much later.95 The agreement collapsed shortly thereafter.96 The civil war resumed.

3.2 The AFRC Coup and the End of the Sierra Leone War In the meantime, widespread dissatisfaction in Sierra Leone Army (“SLA”) ranks grew to a boiling point. President Kabbah had continued the prior NPRC government establishment of local militias to provide security at the communal level.97 This was prompted by doubts about the loyalty of some SLA forces, a phenomenon that caused locals to label them sobels: soldiers by day, rebels by night.98 The creation of a parallel militia implied a lack of trust in the army. Consequently, on May 25, 1997, a group of mutineers overthrew the Kabbah Government.99 A few days later, the Armed Forces Revolutionary Council (“AFRC”) assumed power in Sierra Leone and invited the RUF to form a coalition government.100 Major Johnny Paul Koroma, who was sprung from a notorious national maximum-security prison where he was incarcerated, became president.101 Kabbah escaped to neighboring Guinea, where he set up a government in exile in Conakry.102 From there, he directed his deputy defense minister, Sam Hinga Norman, to consolidate the different traditional hunters from various tribal groups in Sierra Leone to form a civil defense militia.103 Their job was to continue the fight against the AFRC/‌RUF and to restore his government to power.104 But the international community refused to recognize the illegal AFRC/RUF‌ regime. As part of this, the United Nations imposed sanctions on Sierra Leone

95 H. E. Alhaj Ahmad Tejan Kabbah, Two Decades of Conflict and Democracy in Sierra Leone: A Personal Experience 3 (Institute for Security Studies ed., 2012), available at http://www .issafrica.org/uploads/SitRep2 012_12Apr.pdf. 96 Taylor Trial Judgment, supra note 3, ¶ 40. 97 Id. ¶ 42. 98 Sierra Leone TRC Report, supra note 62, at 198. 99 Taylor Trial Judgment, supra note 3, ¶ 42. 100 Id. ¶¶ 42–43. 101 2 Human Rights Watch, Sierra Leone: Getting Away with Murder, Mutilation, Rape, New Testimony from Sierra Leone 3(A), III (1999) [hereinafter Sierra Leone: Getting Away with Murder (1999)], available at http://www.hrw.org/reports/1999/sierra/SIERLE99-02. htm#P142_28430. 102 Sierra Leone TRC Report, supra note 62, at 248. 103 Taylor Trial Judgment, supra note 3, ¶ 42; Sierra Leone TRC Report, supra note 62, at 248. 104 Sierra Leone: Getting Away with Murder (1999), supra note 101. 286 Jalloh in October 1997.105 ECOWAS negotiated a six-month peace plan, aimed at the early return of constitutional governance to Sierra Leone, which collapsed nearly immediately.106 In early February 1998, working with the CDF militia, ECOMOG forces expelled the junta from Freetown,107 and on March 10, 1998, Kabbah was reinstated.108 The fighting continued. However, due to several peace initiatives and the government’s two-track political and military strategy to ending the war, peace talks resumed in Togo in May 1999.109 A comprehensive peace agreement was negotiated after several weeks.110 President Kabbah and Foday Sankoh signed it at Lomé, Togo on July 7, 1999 (“Lomé Accord”), and although aspects of it discussed further below proved to be controversial, it did provide a basic foundation for the final end of the war.111 The Lomé Accord obliged the parties to an immediate ceasefire, provided for the transformation of the RUF into a political party, and required the demobilization of combatants.112 There were also power-sharing provisions, including four senior cabinet and four junior cabinet posts for the RUF, with Sankoh receiving the putative position of vice president and chairman of the country’s mineral resources commission and others in the rebel organization appointed to the remaining positions.113 In lieu of prosecutions, the Lomé Accord also mandated the establishment of a truth commission for victims and perpetrators of human rights violations to tell their stories.114 In probably the most derided provision, which expanded the scope of a similar clause that first surfaced in the Abidjan Accord, the agreement also granted a blanket amnesty to Sankoh personally and all other combatants and their collaborators.115 They were promised immunity from prosecution for all their depraved actions

105 Taylor Trial Judgment, supra note 3, ¶ 44. 106 Julius Mutwol, Peace Agreements and Civil Wars in Africa: Insurgent Motivations, State Responses, and Third Party Peacemaking in Liberia, Rwanda, and Sierra Leone 252–53 (Cambria Press ed., 2009). 107 Taylor Trial Judgment, supra note 3, ¶ 48. 108 Id. 109 Sierra Leone: Getting Away with Murder (1999), supra note 101. 110 Peace Agreement between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone, R.U.F.-S.L., July 7, 1999, available at http:// www.sierra-leone.org/lomeaccord.html [hereinafter Lomé Peace Agreement]. 111 Id. 112 Id. arts. I, III, XV, XVI. 113 Id. art. V. 114 Id. art. VI. 115 Id. art. IX. Law and Politics of the Taylor Case 287 throughout the war.116 If this was the bitter pill that had to be swallowed for the sake of peace, so be it, the Kabbah government’s logic went. It was a decision that, even after parts of the Lomé Accord collapsed, the president and his supporters continued to defend as necessary at the time. The United Nations and several African and powerful Western States, including the United States, endorsed the agreement.117 But, in a move that surprised participants, a last minute caveat was hastily entered during the signing of the agreement by Ambassador Francis G. Okelo, the U.N. special representative, at the talks. The United Nations, which was road testing a new policy on amnesties, declared its understanding that no amnesty would apply in respect of any international crimes committed during the conflict.118 That decision, which effectively limited the amnesty to the domestic crimes committed under Sierra Leonean law, would later prove to have been an important one. It provided the foundation for the legal conclusion by the SCSL Appeals Chamber that none of the accused persons before the tribunal in Freetown were entitled to any form of immunity from prosecution because a State, such as Sierra Leone, could not bring “into oblivion and forgetfulness a crime, such as a crime against international law, which other States are entitled to keep alive and remember.”119 In May 2000, a renegade faction of the RUF operating in northern Sierra Leone disarmed and held hostage around five hundred U.N. peacekeepers.120 Several of the peacekeepers were murdered.121 This angered many Sierra Leoneans, including the Kabbah government, which saw it as a repudiation of

116 Id. 117 Id. at Annex 1. 118 U.N. S.C., Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, para. 22, U.N. Doc. S/200/915 (Oct. 4, 2000). Many have described this statement as a “reservation.” But that may not be an accurate description as that term is understood in treaty law. The United Nations was not a party to the treaty and was instead a witness and moral guarantor to it. See id. ¶¶ 23–34. 119 Prosecutor v. Kallon, Case No. SCSL-2004-15-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, ¶¶ 67, 88 (Mar. 13, 2004). The Appeals Chamber position was reiterated, inter alia, in Prosecutor v. Kondewa, Case No. 14-AR72, Decision on Lack of Jurisdiction/Abuse of Process: Amnesty Provided by the Lomé Accord (May 25, 2004). For thoughtful commentary on the implications of these decisions, see Leila N. Sadat, “The Lomé Amnesty Decision of the Special Court for Sierra Leone,” in The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law 311–24 (Charles C. Jalloh ed., 2014). 120 Taylor Trial Judgment, supra note 3, ¶ 67. 121 Sierra Leone TRC Report, supra note 62, at 358. 288 Jalloh core aspects of the Lomé Accord.122 Some civil society organizations and parliamentarians came together and organized the largest rally in the country’s history with over 100,000 participants.123 They marched to Sankoh’s residence to say enough was enough.124 Everyone was sick of the malevolent behavior of the RUF. In the chaos that followed after the demonstrators arrived at Sankoh’s house, in the posh West End of Freetown, some shots were fired into the crowd, seemingly by the rebel leader’s security detail.125 Twenty-two unarmed pro- testers were killed while fifteen were wounded.126 Government forces placed Sankoh under arrest.127 He was subsequently detained at an undisclosed location.

3.3 The Establishment of the Special Court for Sierra Leone With the combination of pressure for criminal prosecutions, coming from human rights groups within and outside Sierra Leone, a fed-up Kabbah wrote a letter to the United Nations in June 2000 requesting international help to establish an independent special court to try the “RUF leadership” and their “accomplices” and “collaborators.”128 The U.N. Security Council acceded to the request.129 It thus adopted Resolution 1593 asking the Secretary-General to negotiate a treaty with the government of Sierra Leone to establish an independent tribunal to prosecute those most responsible for the atrocities.130 Following relatively smooth negotiations compared to the Cambodia Tribunal, in January 2002,131 the United Nations and Sierra Leone signed the

122 See Ahmad Tejan Kabbah, Pres. His Excellency the President’s Address to the Opening of the Fourth Session of the First Parliament of the Second Republic of Sierra Leone (June 16, 2000), available at http://www.sierra-leone.org/Speeches/kabbah-061600.html. 123 Sierra Leone TRC Report, supra note 62, at 412. 124 Id. 125 Id. at 435, 437. 126 Id. at 435–36. 127 Id. at 444–46. 128 Permanent Representative of Sierra Leone to the U.N., Letter dated June 12, 2000 from the Permanent Representative of Sierra Leone to the United Nations addressed to the President of the Security Council, U.N. Doc. S/2000/786, Annex (Aug. 10, 2000). 129 S.C. Res. 1315, U.N. Doc S/RES/1315 (Aug. 14, 2000). 130 Id. at ¶¶ 1, 3. 131 Compare Agreement between the United Nations and the Government of Sierra Leone and Statute of the Special Court for Sierra Leone, ICRC (Jan. 16, 2002), https://www.icrc .org/ihl/INTRO/605?OpenDocument, with Enemies of the People: Interview: David Scheffer of Cambodia Tribunal; Monitor, PBS (July 12, 2011), available at http://www.pbs.org/pov/ enemies/khmer_rouge_tribunal_update.php#. Law and Politics of the Taylor Case 289 first bilateral penal treaty132 between the United Nations and one of its member states to establish an ad hoc tribunal. This treaty created a special court to prosecute those bearing greatest responsibility for crimes against humanity, war crimes, and other serious violations of international humanitarian law, specified in Articles 2 to 4 of the Statute of the SCSL, and several offenses under Sierra Leonean law relating to abuse of children and arson mentioned in Article 5.133 The Secretary-General described it as a sui generis court with a mixed jurisdiction and composition.134 The tribunal, which was the first modern one to be based in the country where the crimes were committed since the Nuremberg and Tokyo trials, was to be funded by donations, last for three years, and began operations towards the end of 2002.135 It would go on to prosecute several individuals, from the RUF, AFRC, and CDF warring factions and, at the height of its operations, had two trial chambers and an appeals chamber hearing several joint trials.136 In a symbolic act, which seemed to advertently or inadvertently underscore the importance of his trial, Taylor was the only accused person that the SCSL tried alone.137

132 Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, Jan. 16, 2002, 2178 U.N.T.S. 138 [hereinafter U.N. & Sierra Leone Agreement]; see also Statute of the Special Court for Sierra Leone, Jan. 16, 2002, 2178 U.N.T.S. 138 [hereinafter SCSL Statute]. 133 U.N. & Sierra Leone Agreement, supra note 132, arts. 2–5. 134 U.N. Secretary-General, Rep. of the Secretary-General on the Establishment of a Special Court for Sierra Leone, ¶ 9, U.N. Doc. S/2000/915 (Oct. 4, 2000). 135 See “The Special Court for Sierra Leone: Its History and Jurisprudence,” Special Court for Sierra Leone: Residual Special Court for Sierra Leone, http://www.rscsl.org/ (last visited Mar. 1, 2015). For more on the jurisdiction of the SCSL, see generally Charles C. Jalloh, “Special Court for Sierra Leone: Achieving Justice?”, 32 Mich. J. of Int’l L. 395 (2011). Discussion of the SCSL’s deeply problematic “greatest responsibility” personal jurisdiction can be found in Charles C. Jalloh, “Prosecuting Those Bearing ‘Greatest Responsibility’: The Lessons of the Special Court for Sierra Leone,” 96 Marq. L. Rev. 863 (2013). As to the fascinating issues including the U.S. foreign policy stances that affected the ultimate form the SCSL would take, see David J. Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals 296 (2012). For a wide comprehensive study of the tribunal’s legacy after completion of its work, see generally Charles C. Jalloh, ed., The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law (2014). 136 International Criminal Procedure: Principles and Rules 516 (Göran Sluiter et al. eds., 2013). 137 Id. 290 Jalloh

4 The Controversial Indictment and Arrest of Charles Taylor

4.1 SCSL Indicts Charles Taylor; Nigeria Offers Safe Haven On March 7, 2003, at the SCSL prosecution’s request, Judge Bankole Thompson approved a seventeen count indictment against Taylor.138 The indictment was accompanied by an arrest warrant and request for the suspect’s arrest and transfer.139 The documents were placed under seal. On June 12, 2003, the chamber formally granted a request unsealing them.140 The first indictment against Taylor charged him with individual criminal responsibility pursuant to Articles 6(1) and 6(3) of the SCSL Statute.141 Under Article 6(1), the prosecution alleged that Taylor, by his acts or omissions, planned, instigated, ordered, committed, aided and abetted, or otherwise participated with Sankoh in a common plan involving the crimes charged in eighteen counts.142 In addition to, or in the alternative, pursuant to Article 6(3), the prosecution claimed that Taylor was criminally responsible as a superior for the crimes alleged in the indictments.143 The prosecution averred that he knew, or had reason to know, that his subordinates in the RUF and the AFRC/RUF‌ coalition were about to carry out the crimes, or had done so, but that he failed to take the necessary measures to prevent the acts or to punish the perpetrators.144 Taylor’s indictment was amended twice, first on March 16, 2006, and again on May 29, 2007.145 The final version on which he was tried contained a total

138 Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Indictment, ¶¶ 32–59 (Mar. 7, 2003), http://www .rscsl.org/Documents/Decisions/Taylor/003/SCSC-03-01-I-001.pdf; Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Decision Approving the Indictment and Order for Non- Disclosure (Mar. 7, 2003), http://www.rscsl.org/Documents/Decisions/Taylor/003/SCSL- 03-01-I-003.pdf. 139 Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Order for the Disclosure of the Indictment, the Warrant of Arrest and Order for Transfer and Detention and the Decision Approving the Indictment and Order for Non-Disclosure (June 12, 2003), http://www.rscsl.org/ Documents/Decisions/Taylor/006/SCSL-03-01-I-006.pdf. 140 Id. 141 SCSL Statute, supra note 132, art. 6(1), (3). 142 Id. art. 6(1); Taylor, Case No. SCSL-2003-01-I, Indictment, ¶ 26. 143 SCSL Statute, supra note 132, art. 6(3); Taylor, Case No. SCSL-2003-01-I, Indictment, ¶ 27. 144 Taylor, Case No. SCSL-2003-01-I, Indictment, ¶ 27. 145 Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Decision on Prosecution’s Application to Amend Indictment and on Approval of Amended Indictment (Mar. 16, 2006), http://www .rscsl.org/Documents/Decisions/Taylor/074/SCSL-03-01-I-74.pdf; Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Decision on Prosecution Motion Requesting Leave to Amend Law and Politics of the Taylor Case 291 of three international crimes and eleven counts.146 In five counts he was charged with crimes against humanity, punishable under Article 2 of the SCSL Statute, namely: murder (Count 2); rape (Count 4); sexual slavery (Count 5); other inhumane acts (Count 8); and enslavement (Count 10).147 Five other counts charged what are typically referred to as war crimes, or in more technical jargon, violations of Common Article 3 and Additional Protocol II of the Geneva Conventions, which are punishable under Article 3 of the SCSL Statute,148 namely: acts of terrorism (Count 1); violence to life, health and physical or mental well-being of persons, in particular murder (Count 3); outrages upon personal dignity (Count 6); violence to life, health and physical or mental well-being of persons, in particular cruel treatment (Count 7); and pillage (Count 11).149 Finally, the last count alleged his commission of other serious violations of international humanitarian law, punishable under Article 4 of the SCSL Statute, and in particular, conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities (Count 9).150 None of the charged crimes involved any of the Sierra Leonean offenses in Article 5 of the SCSL Statute.151

Indictment (May 25, 2007), http://www.rscsl.org/Documents/Decisions/Taylor/255/ SCSL-03-01-PT-255.pdf. 146 Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Prosecution’s Second Amended Indictment (May 29, 2007), http://www.rscsl.org/Documents/Decisions/Taylor/255/SCSL-03-01-PT- 263.pdf. 147 SCSL Statute, supra note 132, art. 2; Taylor, Case No. SCSL-2003-01-I, Decision on Prosecution’s Application to Amend Indictment and on Approval of Amended Indictment; Taylor, Case No. SCSL-2003-01-I, Decision on Prosecution Motion Requesting Leave to Amend Indictment. 148 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 3, Aug. 12, 1949, 75 U.N.T.S. 31; Protocol II Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non- International Armed Conflicts, art. 3, June 8, 1977, 1125 U.N.T.S. 609; SCSL Statute, supra note 132, art. 3. 149 Taylor, Case No. SCSL-2003-01-I, Decision on Prosecution’s Application to Amend Indictment and on Approval of Amended Indictment; Taylor, Case No. SCSL-2003-01-I, Decision on Prosecution Motion Requesting Leave to Amend Indictment. 150 SCSL Statute, supra note 132, art. 4; Taylor, Case No. SCSL-2003-01-I, Decision on Prosecution’s Application to Amend Indictment and on Approval of Amended Indictment; Taylor, Case No. SCSL-2003-01-I, Decision on Prosecution Motion Requesting Leave to Amend Indictment. 151 Taylor, Case No. SCSL-2003-01-I, Decision on Prosecution’s Application to Amend Indictment and on Approval of Amended Indictment; Taylor, Case No. SCSL-2003-01-I, Decision on Prosecution Motion Requesting Leave to Amend Indictment. 292 Jalloh

In terms of geographic and temporal scope, the prosecution alleged that the crimes underlying the counts were committed between the beginning of the temporal jurisdiction of the SCSL on November 30, 1996 and the end of the Sierra Leone conflict on January 18, 2002.152 Yet, during the trial, the prosecution presented much evidence that dated back to the period just before the beginning of the war in March 1991. That material was not generally used when determining his individual responsibility. The locations pleaded in the Indictment covered five of Sierra Leone’s largest districts from north to south and east to west, namely: Bombali, Kailahun, Kenema, Kono, Port Loko districts, the Western Area, as well as the capital Freetown.153

4.2 The Question of Peace for Liberia versus Justice in Sierra Leone Taylor’s indictment was first made public by the SCSL prosecution on June 4, 2003.154 He had travelled to Accra, Ghana to attend peace talks that had been convened in the hope of ending the brutal civil war prevailing in Liberia at the time.155 The SCSL prosecutor, David Crane, arranged for the indictment to be hand-delivered to the Ghanaian High Commission in Freetown as well as transmitted directly to the Foreign Ministry in Accra.156 Crane requested the Ghanaian authorities to arrest Taylor and transfer him into the custody of the SCSL.157 He also issued a press release announcing the indictment.158

152 Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Prosecution’s Second Amended Indictment (May 29, 2007), http://www.rscsl.org/Documents/Decisions/Taylor/255/SCSL-03-01-PT- 263.pdf. 153 Id. 154 Clarence Roy-Macaulay, “Sierra Leone Court Indicts Liberia Leader,” Guardian (June 4, 2003), available at https://www.globalpolicy.org/component/content/article/163/29115. html (quoting Prosecutor David Crane). 155 Abdoulaye W. Dukulé, “West Africa: Taylor at Accra Peace Talks: ‘Honourable Exit or Extended Mandate?,’” AllAfrica (June 4, 2003), http://allafrica.com/stories/200306040021. html. 156 James L. Miglin, “From Immunity to Impunity: Charles Taylor and the Special Court for Sierra Leone,” 16 Dalhousie J. Legal Stud. 21, 26 (2007). 157 See Davan Maharaji, “Liberian President is Sought on War Crimes Indictment,” L.A. Times, June 5, 2003, http://articles.latimes.com/2003/jun/05/world/fg-indict5. 158 Press Release, Special Court for Sierra Leone the Office of the Prosecutor, Statement of David M. Crane Chief Prosecutor (June 5, 2003) [hereinafter Press Release of David M. Crane’s Statement], available at http://www.rscsl.org/Documents/Press/OTP/ prosecutor-060503.pdf. See also Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Order for the Disclosure of the Indictment, the Warrant of Arrest and Order for Transfer and Detention and the Decision Approving the Indictment and Order for Non-Disclosure (June 12, 2003), http://www.rscsl.org/Documents/Decisions/Taylor/006/SCSL-03-01-I-006.pdf. Law and Politics of the Taylor Case 293

The publication of the Taylor indictment was a big surprise to Ghana, host of the Liberian peace talks, as well as to the Government of Sierra Leone which had a last minute warning of it when Crane gave a courtesy telephone call to the acting president, Vice-President Solomon Berewa, who warned him that “it would be a matter of indiscretion to serve the indictment on Charles Tylor at that summit meeting, and such action would create huge embarrassment for President Kabbah [who was attending the Accra meeting] and confusion in the entire meeting.”159 It was considered a public embarrassment for the Ghanaian and other ECOWAS governments which were not aware of it in advance. President John Kufour of Ghana, the chair, felt betrayed by his international community partners for springing a surprise on his government when negotiations had made great progress – something that might have angered him even more given Berewa’s disclosure that “finding an exit strategy for Charles Taylor to vacate the Presidency of Liberia” was even on the summit agenda.160 Those delicate negotiations, which were taking place as serious fighting occurred on the outskirts of Monrovia between Taylor forces and other factions, were considered by many states as the best hope for the restoration of peace to war torn Liberia.161 Not surprisingly, except perhaps to Crane, who seemingly made a calculated decision to leak the indictment apparently even before securing a judicial order to that effect, President Kufour refused to act on the warrant.162 Instead, after some initial confusion as to whether they had even received an official copy of the indictment let alone had time to study or act on it, he gave Taylor his presidential aircraft to fly him home to Liberia.163 The Accra Ceasefire Agreement was signed by the Liberian Government and two other factions on

159 Solomon E. Berewa, A New Perspective on Governance Leadership, Conflict and National Building in Sierra Leone 181 (2011); Priscilla Hayner, Negotiating Peace in Liberia: Preserving the Possibility for Justice 8 (2007), available at https://www.ictj.org/sites/default/files/ICTJ- Liberia-Negotiating-Peace-2007-English_0.pdf; Kathy Ward, “Might vs. Right: Charles Taylor and the Sierra Leone Special Court,” 11 Hum. Rts. Brief 8, 8 (2003). 160 Berewa, supra note 159, at 182; Lansana Gberie, Jarlawah Tonpoh, Efam Dovi & Osei Boateng, “Charles Taylor: Why Me?,” New African Magazine, May 2006, 4–5; Transcript of Record at 31505, Prosecutor v. Taylor, SCSL-03-01-T (Nov. 10, 2009) [hereinafter Transcript of Record – Nov. 10, 2009], available at http://www.rscsl.org/Documents/Transcripts/ Taylor/10November2009.pdf. 161 See Hayner, supra note 159, at 8. 162 Id. 163 Miglin, supra note 156, at 26–27. 294 Jalloh

June 17, 2003.164 For various reasons, including the military and political pressure on Taylor and perhaps even the indictment, he agreed to resign from the Presidency of Liberia several months later on August 11, 2003.165 He took up residence in Nigeria, believing that by agreeing to exit the political scene under African Union and ECOWAS led political arrangements, he would be spared ultimate prosecution at the SCSL.166 The political fallout from the indictment was immediate. Some diplomats condemned Crane’s actions as ill-timed and naïve, a form of obstructionism that could stand in the way of peace in Liberia where a humanitarian catas- trophe was taking place and where Taylor was still an influential player.167 The other side of the story, from the SCSL side, was that justice had to be served on behalf of the people of Sierra Leone. Interestingly, similar arguments about tribunal prosecutors jeopardizing the prospects for peace among warring parties were to be echoed many years later in the Uganda and Darfur situations after the ICC’s first prosecutor, Luis Moreno-Ocampo, secured arrest warrants for elusive Lord’s Resistance Army rebel leader Joseph Kony and Sudanese President Omar Al Bashir.168 Such claims have since become integral features of the peace versus justice dilemma for international criminal courts albeit on a different permutation typically focusing on the same instead of two different countries. In any event, in each of the Uganda and Sudan situations, but for the international warrants, the parties likely would have reached agreement to end the bloodshed. That is how the argument is usually presented in a curious counterfactual that is by its nature hard to debunk. Taylor, for his part, apparently agreed to resign so that a final Liberia peace agreement could be concluded. He also played an important role during the RUF-Kabbah negotiations of the Lomé Accord in the summer of 1999. The record is unclear as to whether he agreed to resign Liberia’s presidency before he was indicted in Sierra Leone or afterwards. If the former, which can be supported by Vice-President Berewa’s contention that the issue of Taylor’s exit was already on the ECOWAS heads of states’ agenda, the concern about the effect

164 Permanent Rep. of Ghana to the United Nations, Letter dated June 18, 2003 from the Permanent Rep. of Ghana to the United Nations addressed to the President of the Security Council, U.N. Doc. S/2003/657 (June 18, 2003). 165 The Accra Comprehensive Peace Agreement was signed just days later, on August 18, 2003, bringing an end to Liberia’s 15 year civil war. See Liberian TRC Report, supra note 1, at 169. 166 Transcript of Record – Nov. 10, 2009, supra note 160, at 31529–30. 167 See Hayner, supra note 159, at 9–10. 168 See Charles C. Jalloh, “Regionalizing International Criminal Law?”, 9 Int’l. Crim. L. Rev. (2009) 445, 489–491 (discussing the criticisms of the ICC in the Uganda Situation). Law and Politics of the Taylor Case 295 of unveiling an indictment on a prospective prosecution would obviously be higher. It may perhaps suggest that a promise of non-prosecution was used as a carrot. On the other hand, if he agreed after the indictment was unveiled, it could suggest that the stick of prosecution could be used to hasten the departure of a recalcitrant leader who could otherwise jeopardize the chances of long-term peace. Whatever the case, as Taylor dilly-dallied from resigning in the wake of the publication of his sealed indictment, thousands more were killed near Monrovia.169 He was probably seeking to stay on until he could secure the guarantees he felt were necessary to secure his position, which according to him, was a promise that he would not be prosecuted by the SCSL.170 He would later testify during his trial that had he known he would be apprehended and sent to the tribunal in Freetown, contrary to the political deal sanctioned by African and powerful Western States that his indictment would become “moot,” he would not have resigned from Liberia’s presidency.171 He would have fought to the end. Although we will never know if this would have actually happened, taking Taylor’s statement at face value raises some valid concern whether future rebels might refuse to sign agreements to make way for peace because of the Taylor precedent. If so, even though each conflict situation will probably be different in its own way and will have to be assessed in light of its specificities, the implications for short term peace may prove to be dire. The reality is that a political settlement, amongst warring adversaries, is often the only real option for a final termination of bloody rebel-led conflicts in which neither side is positioned to claim clear military victory. On the other hand, much like the ICC prosecutor would later respond to those who advanced the peace-justice argument after indictments for persons in Uganda and the Sudan, Crane retorted that he had both the legal and moral obligation to follow evidence of international crimes falling within his jurisdiction.172 To him, with the indictment in place, it was important that anyone negotiating with Taylor know his status as an alleged war criminal. This was obviously calculated to weaken Taylor’s bargaining position and to perhaps even render his relevance to a final political settlement nugatory. Furthermore,

169 Mutuma Ruteere, “Liberia,” in Encyclopedia of Human Rights (Oxford Univ. Press ed., 2009). 170 Charles C. Jalloh, “Charles Taylor and the Delayed Special Court for Sierra Leone Judgment,” Jurist (Feb. 23, 2012), http://jurist.org/forum/2012/02/charles-jalloh-taylor-scsl. php. 171 Transcript of Record – Nov. 10, 2009, supra note 160, at 31503. 172 Press Release of David M. Crane’s Statement, supra note 158. 296 Jalloh in another point that was later echoed by the ICC prosecutor, the SCSL prosecutor insisted that he could only fulfill his responsibilities if the international community showed the political will necessary to carryout arrests requested by the tribunal rather than giving “weak excuses.”173 He therefore urged all supporters of the SCSL to not further disappoint the people of Sierra Leone.174 Crane seemed well-meaning and within his mandate as a prosecutor. However, in retrospect, it appears that he went about the revelation of the Taylor indictment in a way that rubbed many key states, especially crucial African partners, the wrong way. He might have miscalculated the full diplomatic implications and the political backlash that the announcement of the indictment would entail. Maybe, like Ocampo’s move much later on against President Al Bashir at the ICC, Crane felt that the political tide had turned against Taylor, making it easy to secure his arrest. If that was so, this proved to be a wrong assessment. With hindsight, a more cautious rather than messianic approach would have likely yielded faster results to get the concerned African states behind the idea of arresting Taylor. Many of those same countries were already sick of Taylor’s wars. These included Nigeria, the regional superpower, which had expended much political and military resources in an attempt to restore peace first to Liberia and then Sierra Leone.175 Privately, if not publicly, many of them would probably have welcomed the chance to help apprehend and turn him over to the SCSL to answer international crimes charges. Whatever the case, it seems that the SCSL indictment helped to fast-track Taylor’s political demise. It apparently served as a credible threat to the alternative of his continuing a war he was not equipped to win against insurgents in Liberia. The ICC prosecutor could have learned from the SCSL’s initial mishandling of the Taylor arrest warrant regarding how to avoid antagonizing the African Union member states (“AU states”) that were more likely to help him secure Al Bashir’s arrest.176 To date, nearly six years after Al Bashir’s indictment, AU states have decided that none of them would arrest him and thereby refused to turn him over to the ICC.177 Even though there is a legal obligation to do so under the Rome Statute

173 Id. 174 Id. 175 See Liberian TRC Report, supra note 1, at xxiv. 176 The Liberian TRC Report has argued that Crane’s indictment of Taylor had the effect of excluding him from the peace negotiations. See Liberian TRC Report, supra note 1, at 169. 177 “AU Chief Condemns Bashir Warrants,” Aljazeera (July 27, 2010), http://www.aljazeera .com/news/africa/2010/07/2010726423699861.html. For scholarly assessments of the Africa- ICC tension, including a discussion of the Al Bashir arrest controversy from multiple Law and Politics of the Taylor Case 297 and in light of the decisions of the judges on the point, the unfortunate effect has been that – at least for now – Al Bashir can call the Court’s bluff. This seems to be an example of how the ICC prosecution is reinventing the wheel rather than learning from the rich experiences of the ad hoc tribunals that preceded it.

4.3 Nigeria Asylum Unravels, the Noose Tightens Around Taylor, and the Dramatic Arrest The immediate impact of Crane’s attempt to cajole or shame Ghana into arresting Taylor was to delay instead of hastening his arrest. It would take another three years, much diplomatic and other advocacy efforts, as well as changed circumstances in Liberia, West Africa, and in U.S. foreign policy under the Bush Administration before Nigeria would eventually surrender Taylor to the SCSL at the end of March 2006.178 To be sure, amongst Sierra Leonean civil society, especially war victim groups, there was popular support for Taylor’s arrest. Similarly, in Nigeria, Taylor’s stay at a government-furnished mansion in the southern city of Calabar became controversial, especially after a case was initiated in the local High Court by two Nigerian businessmen who had been amputated by RUF forces in Sierra Leone.179 They argued that Nigeria could not harbor Taylor by granting him asylum, and that by doing so instead of prosecuting or extraditing him to the SCSL to face charges, their rights under

perspectives, see Regionalizing International Criminal Law?, supra note 168; Charles C. Jalloh, “Universal Jurisdiction, Universal Prescription? Assessing the African Union Perspective on Universal Jurisdiction,” 21 Crim. L. Forum.1 (2010). See also Dapo Akande, “The Legal Nature of Security Council Referrals to the ICC and the Impact on Al Bashir’s Immunities,” 7 J. of Int’l. Crim. Just. 333–352 (2009); Dire Tladi, “The African Union and the International Criminal Court: The Battle for the Soul of International Law” 34 South African Yrbk of Int’l. L. 57 (2009); Dire Tladi, “Cooperation, Immunities and Article 98 of the Rome Statute: Confronting the Complexities of Interpretation,” 11 J. of Int’l. Crim. Just. 199 (2013). 178 Press Release, Special Court for Sierra Leone the Office of the Prosecutor, Statement by Special Court Prosecutor Desmond de Silva, QC Welcoming the Nigerian Announcement of the Transfer of Charles Taylor (Mar. 25, 2006), available at http://www.rscsl.org/ Documents/Press/OTP/prosecutor-032506.pdf. 179 See Babatunde Fagbohunlu, “Challenging Taylor’s Asylum in Nigeria,” in Int’l Just. and Transnat’l Remedies 62, 64 n.1, (Open Society Foundation 2005) (stating “Suit No FHC/ABJ/M/216/04 and Suit No FHC/ABJ/M/217/04 commenced by way of Originating Summons filed by David Anyaele and Emmanuel Egbuna against Charles Taylor, the Federal Commissioner for Refugees, the Eligibility Committee for Refugees, the National Commission for Refugees, the President of the Federal Republic of Nigeria, and the Attorney-General of the Federal Republic of Nigeria.”), available at http://www.open societyfoundations.org/sites/default/files/fagbohunlu.pdf. 298 Jalloh the Nigerian Constitution and international law had been violated.180 Various local and international human rights groups intervened in support.181 The court agreed to hear the matter and the government appealed.182 Meanwhile, within some government circles in the ECOWAS region, political pressure for Taylor’s arrest slowly began to gain some momentum.183 As one of the conditions of Taylor’s asylum in Nigeria, he agreed to stay out of Liberian politics.184 But, by around the middle to late 2005, claims had emerged that he was still seeking to meddle in politics not only in Liberia but in other countries in the West Africa sub-region.185 This included Cote D’Ivoire where, though this was never proved, he was even alleged to have backed a coup plot.186 The SCSL Prosecutor later tried to link his activities to those of Al Qaeda, another assertion that was never substantiated publicly. Further afield, in Europe and the United States, various resolutions were passed by Parliament and Congress respectively.187 A prelude to this turn of events was that, in late 2003, the United States announced a $2 million reward for information leading to Taylor’s capture.188 This was part of the Rewards for Justice Program,189 which the United States had been operating to encourage arrests of fugitives wanted by ad hoc tribunals. But public announcement of the decision to include the SCSL’s star indictee in the mix was not backed with a serious diplomatic push for his apprehension. It would take another two years, until the passage of the resolution in Europe in February 2005190 that similarly

180 Id. at 63. 181 Id. at 62. 182 Id. at 63. 183 See “Liberia: West African Leaders Call for Review of Taylor’s Asylum Deal,” IRIN News (Aug. 1, 2005), http://www.irinnews.org/printreport.aspx?reportid=55662. 184 Craig Timberg, “A Warlord’s Exile Divides His Hosts: Liberian Ex-President Charles Taylor Doing Business as Usual in Nigeria,” Wash. Post (Oct. 9, 2005), http://www.washington post.com/wp-dyn/content/article/2005/10/08/AR2005100801243_pf.html; Douglas Farah, “A Protected Friend of Terrorism,” Wash. Post (Apr. 25, 2005), http://www.washingtonpost .com/wp-dyn/content/article/2005/04/24/AR2005042400893.html. 185 Timberg, supra note 184; Farah, supra note 184. 186 Timberg, supra note 184. 187 Resolution on the Special Court for Sierra Leone: The Case of Charles Taylor, Eur. Par. Doc. P6_TA (2005)0059 (2005); H.R. Con. Res. 127, 109th Cong. (2005). 188 “In $87.5 Billion Bill, $2 Million Bounty for Exiled Liberian,” N.Y. Times (Nov. 10, 2003), http://www.nytimes.com/2003/11/10/world/in-87.5-billion-bill-2-million-bounty-for- exiled-liberian.html. 189 Rewards for Justice, http://www.rewardsforjustice.net/ (last visited Mar. 1, 2015). 190 Resolution on the Special Court for Sierra Leone: The Case of Charles Taylor, supra note 187. Law and Politics of the Taylor Case 299 supportive action was taken by the British parliament.191 All these resolutions urged the Nigerian authorities to send Taylor to the SCSL. Still, despite their apparent political weight, the Bush Administration did not say much until around January 2006, when U.S. Secretary of State Condoleeza Rice announced that the United States was keen to see Taylor transferred to the SCSL.192 At the level of the U.N. Security Council, which has the primary responsibility for the maintenance of international peace and security, a travel ban had been placed on Taylor and his senior associates by March 2001.193 They had repeatedly and flagrantly violated U.N. sanctions, including the illegal supply of arms, ammunition, and other logistical and communications equipment to the RUF in Sierra Leone.194 By the end of November 2005, the Security Council was ready to take a further step by which it authorized U.N. peacekeepers to apprehend Taylor in the event he was to return to Liberia.195 The peacekeepers were to transfer him to the SCSL.196 This confounded Taylor, who wondered how he could be arrested when he was not even in Liberia. But, in retrospect, he realized it meant that the groundwork was being laid. The Nigerian government under President Olesugun Obasanjo, which had initially insisted that it would not turn over Taylor to the SCSL (because it did not want to be seen as reneging on an African Union and ECOWAS agreement to keep Taylor), announced that it would honor a democratically-elected Liberian government’s request for it to do so.197 This opened the door for a potential transfer. The momentum for Taylor’s arrest seemed inexorable. The time was coming. In the meantime, Liberia held transitional elections as per the Accra Peace Accord. Ellen Johnson Sirleaf won the vote, becoming Africa’s first female head of state.198 On March 5, 2006, the new Liberian president, in

191 “U.N. Special Court for Sierra Leone,” Early Day Motion 1375, H.C. (June 10, 2003), available at http://www.parliament.uk/edm/2002-03/1375. 192 Felix Onuah, “Wanted Liberian Warlord Disappears in Nigeria,” Wash. Post (Mar. 28, 2006), http://www.washingtonpost.com/wp-dyn/content/article/2006/03/28/AR2006032 800390_pf.html. 193 See U.N. S.C. Res. 1343, para. 7(a), U.N. Doc. S/RES/1343 (Mar. 7, 2001). 194 Id. para. 2(b). 195 U.N. S.C. Res. 1638, para. 1, U.N. Doc. S/RES/1638 (Nov. 11, 2005). 196 Id.; For commentary, see generally Micaela Frulli, “A Turning Point in International Efforts to Apprehend War Criminals: The U.N. Mandates Taylor’s Arrest in Liberia,” 4 J. Int’l. Crim. Just. 351–61 (2006). 197 Onuah, supra note 192. 198 Ernest Harsch, “Liberian Woman Breaks the ‘Glass Ceiling,’” Africa Renewal (Jan. 2006), http://www.un.org/africarenewal/magazine/january-2006/liberian-woman-breaks- %E2%80%98glass-ceiling%E2%80%99. 300 Jalloh a not entirely selfless decision given her initial support to Taylor for the establishment of the NPFL, requested the Nigerian authorities to turn over Taylor to her government.199 She did so reportedly because of unrelenting pressure from several of Liberia’s crucial development partners, including the United Nations, the United States, and the European Union.200 On March 25, 2006, President Obasanjo informed Johnson Sirleaf that Liberia was “free to take former President Charles Taylor into its custody,”201 but by not arresting Taylor, Nigeria raised questions about whether it was still seeking to shield the suspect. The final act in the Taylor arrest drama was Obasanjo’s visit to Washington. He was scheduled to meet with President George Bush at the White House on March 29, 2006.202 Just a couple of days before, on March 27, Nigeria, in an apparent face saving ploy, had announced that Taylor had suddenly “escaped” from his villa in Calabar.203 The United States warned of “consequences” if Taylor was not turned over.204 The day before the White House meeting, it was made abundantly clear that Bush would cancel the meeting with Obasanjo if the Taylor issue was not resolved.205 Abuja, which had expressed dismay at the “persistent pressure” it was receiving “to violate the understanding of 2003,” reversed course.206 Only hours later, on March 29, Nigerian forces “found” Taylor at a remote border post close to Cameroon.207 He was arrested with sacks of money ($50,000), allegedly given to him by Obasanjo, and immediately

199 Press Release, Human Rights Watch, Liberia: President Requests Surrender of Taylor (Mar. 17, 2006). 200 “Johnson-Sirleaf Describes Attempts to Come to Terms with Liberia’s Violent Past,” PBS Newshour (Mar. 23, 2006), http://www.pbs.org/newshour/bb/africa-jan-june06- liberia_3-23/. 201 See Statement by the Federal Government of Nigeria – Former President Charles Taylor to the transferred to the custody of the Government of Liberia, Mar. 25, 2006. See also Bernard Hibbitts, “Nigeria to Hand over War Crimes Indictee Taylor to Liberia,” Jurist (Mar. 25, 2006), http://jurist.org/paperchase/2006/03/breaking-news-nigeria-to-hand- over-war.php. 202 Dino Mahtani & Guy Dinmore, “US Raps Nigeria As Liberian Warlord Vanishes,” Fin. Times (Mar. 29, 2009), http://www.ft.com/cms/s/0/dff754e2-bebf-11da-b10f-0000779e2340 .html#axzz3R5wz3R00. 203 See Onuah, supra note 192. 204 See id.. 205 Mahtani & Dinmore, supra note 202. 206 “Court Calls for Arrest of Liberian Ex-Leader,” Wash. Post (Mar. 27, 2006), http://www .washingtonpost.com/wp-dyn/content/article/2006/03/26/AR2006032600928.html. 207 Amin George Forji, “Nigerian Police Arrest Fugitive Liberian Warlord,” OhmyNews (Mar. 30, 2006), http://english.ohmynews.com/articleview/article_view.asp?article_class=3&no= 282501&rel_no=1. Law and Politics of the Taylor Case 301 put under guard in a military jet and flown to Monrovia.208 Obasanjo met with Bush while Taylor was on his way to Liberia, where he was arrested, upon arrival, by U.N. peacekeepers on the tarmac at Monrovia’s Robertsfield International Airport and transferred onto a U.N. helicopter.209 He was flown to the SCSL premises at New England in Freetown.210 Nearly the whole of Sierra Leone celebrated.211 The prosecution was anxious to have Taylor arraigned. Taylor was not in a rush. He had arrived with only the clothes on his back, so he insisted to the Defense Office that his clothing be brought in from Nigeria.212 That was duly brought, at his own expense, by one of his former chiefs of protocol who flew on the earliest available flight.213 On April 3, 2006, a date negotiated between the Defense Office and the Office of the Prosecutor, a still visibly shaken Taylor was arraigned before Presiding Judge Richard Lussick of Trial Chamber II and read out his charges.214 He pleaded “most definitely . . . not guilty.”215 In later trial testimony, he would invite Obasanjo to tell the truth about his so-called escape.216 He then explained that he had effectively been duped by an African “brother.”217 Taylor, pressed as to reasons why, then suggested that Nigeria might have given him up because of its hope to secure a permanent seat on the Security Council, which was being discussed at the time, and Obasanjo’s desire to run for a third term in office without U.S. opposition.218

5 Controversial Preliminary Issues before the Charles Taylor Trial

5.1 Taylor Claims Immunity from Prosecution In the Taylor case, unlike most other international criminal trials, some of the preliminary legal issues were raised before he was even arrested. The first of

208 Transcript of Record – Nov. 10, 2009, supra note 160, at 31521–22. 209 Id. at 31522. 210 Id. 211 Id. at 31526. 212 Id. at 31522. 213 See generally id. 214 Personal observation of this author, who was present in the courtroom, during Taylor’s arraignment. See also Transcript of Record at 4–13, Prosecutor v. Taylor, Case No. SCSL-03- 01-T (Apr. 3, 2006), http://www.rscsl.org/Documents/Transcripts/Taylor/3April2006.pdf. 215 Id. at 15. 216 Transcript of Record – Nov. 10, 2009, supra note 160, at 31523–24. 217 See id. at 31517–21. 218 Id. at 31520. 302 Jalloh these occurred when, as President of Liberia, he hired a Sierra Leonean lawyer, Terence Terry, to seek a quashing of the SCSL indictment.219 This was done even as Liberia also planned, ultimately unsuccessfully, to pursue the arguably better alternative of initiating legal proceedings against Sierra Leone at the International Court of Justice (“ICJ”).220 The essence of Liberia’s claim was that the SCSL’s issuance of an international arrest warrant against Taylor violated a fundamental rule of international law which provided for Taylor’s immunity, as a head of state, from criminal proceedings in foreign criminal jurisdictions.221 Sierra Leone had also violated the rule prohibiting it from exercising judicial power on the territory of another state, in as much as Liberia was not a party to the United Nations-Sierra Leone Agreement establishing the SCSL.222 As the tribunal was not a U.N. organ, and also not an established international penal court, it could not impose legal obligations on a third state like Liberia.223 But that process did not go far because Sierra Leone’s consent was required for the ICJ to have jurisdiction and was not given.224 On July 23, 2003, at the SCSL itself, Terry filed a motion submitting that Taylor, who was a sitting head of state at the time the alleged crimes were committed, was absolutely immune from any exercise of jurisdiction by the SCSL.225 He relied on the ICJ ruling in the Congo v. Belgium (Arrest Warrant) case to argue that the indictment was invalid under international law.226 In that dispute, the World Court had decided the question whether Belgium, by merely issuing and circulating an arrest warrant for the Congolese Minister

219 Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Decision on Immunity from Jurisdiction, at 3015 (May 31, 2004), http://www.eccc.gov.kh/sites/default/files/Taylor.pdf. 220 Id. at 3016. See also Charles C. Jalloh, “Immunity from Prosecution for International Crimes: The Case of Charles Taylor at the Special Court for Sierra Leone,” 8 Asil Insights 9 (2004), available at http://www.asil.org/insights/volume/8/issue/21/immunity-prosecution- international-crimes-case-charles-taylor-special. 221 Immunity from Prosecution for International Crimes: The Case of Charles Taylor at the Special Court for Sierra Leone, supra note 220. 222 Taylor, Case No. SCSL-2003-01-I, Decision on Immunity from Jurisdiction, at 3018, 3039. 223 Id. at 3039. 224 Press Release, Int’l Court of Justice, Liberia Applies to the International Court of Justice in a Dispute with Sierra Leone Concerning an International Arrest Warrant Issued by the Special Court for Sierra Leone Against the Liberian President (Aug. 5, 2003), available at http://www.icj-cij.org/presscom/index.php?pr=1027&pt=&p1=6&p2=1. 225 Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Applicant’s Motion made under Protest and without Waiving of Immunity, 3 (July 23, 2003), http://www.rscsl.org/Documents/ Decisions/Taylor/024/SCSL-03-01-I-015.pdf. 226 Case Concerning the Arrest Warrant of 11 April 2000 (DRC v. Belgium), 2002 I.C.J. 121, 3 (Feb. 4), available at http://www.icj-cij.org/docket/files/121/8126.pdf. Law and Politics of the Taylor Case 303 for Foreign Affairs, Abdoulaye Yerodia, had violated customary international law.227 Although the Court determined that, due to the principle of sovereign equality, foreign ministers and other high ranking officials such as heads of state were shielded from prosecution before the national courts of other states, it identified four exceptions under which such exercise of jurisdiction would be permissible.228 As part of this, the ICJ determined that an incumbent foreign minister or head of state may be subject to prosecution before certain international penal courts, where such courts possess jurisdiction.229 It cited as examples of this the ICTY and ICTR as well as (at the time) the future ICC.230 Taylor’s attorney submitted that because the SCSL lacked the Chapter VII powers of the ICTY and ICTR, it was more akin to a national court of Sierra Leone, and consequently, that it lacked jurisdiction over Taylor.231 In resolving the preliminary motion, which was forwarded to the Appeals Chamber, two questions were central: firstly, whether Taylor, who was at the time of the decision no longer holding office as president, was entitled to immunity from the legal processes of the SCSL; and secondly, whether the SCSL was a national or international criminal tribunal.232 The prosecution made both procedural and substantive arguments.233 It suggested, with regards to the former, that it was wrong for Taylor to challenge the tribunal’s jurisdiction before personally submitting to it.234 On the merits, the prosecution argued that the SCSL, which was not part of the Sierra Leonean judiciary and was created as an independent tribunal under international law, could not be subject to the same limitations as the ICJ had found applicable to the national courts of states such as Belgium.235 In its decision on the motion, which has been controversial among commentators since it was handed down, the Appeals Chamber denied the defense motion.236 It examined the Nuremberg and Tokyo tribunal precedents, as well

227 Id. at 4. 228 Id. ¶ 27. 229 Id. ¶¶ 58, 61. 230 Id. ¶ 61. 231 Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Decision on Immunity from Jurisdiction, at 3018 (May 31, 2004), http://www.scsldocs.org/documents/view/1609-1303. 232 Id. ¶¶ 20, 33, 37. 233 Id. ¶ 5. 234 Id. ¶ 16. 235 For further discussion of the parties’ submissions in detail, see Immunity from Prosecution for International Crimes: The Case of Charles Taylor at the Special Court for Sierra Leone, supra note 220. 236 Taylor, Case No. SCSL-2003-01-I, Decision on Immunity from Jurisdiction, ¶ 53. 304 Jalloh as the rulings in the Arrest Warrant and Pinochet cases, alongside the briefs filed by Amicus Curiae Phillip Sands and Diane Orentlicher.237 It then concluded that “the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.”238 In effect, the SCSL was an international criminal tribunal exercising an international mandate over international crimes. The tribunal, being international, therefore fell within one of the four exceptions that the ICJ had identified.239 As a consequence, although no longer a president entitled to ratione personae immunity after having left office, Taylor’s official status as a sitting president when the criminal proceedings were initiated was not a bar to his prosecution.240 His case was, therefore, properly within the SCSL’s jurisdiction.241 The Court notably failed to properly account for the germane issue of Liberia’s third party status to the bilateral treaty that had created the SCSL. When Taylor eventually appeared before the SCSL, during his arraignment on April 3, 2006, he again raised the question of his immunity.242 He stated that he did not recognize the court’s jurisdiction since he believed his status entitled him to immunity.243 Judge Richard Lussick reminded Taylor that he had previously contested that issue and lost.244 As far as the judge was concerned, the matter had been “thrashed out” by the Appeals Chamber.245 But Taylor was free to file motions to revisit the issue after first pleading to the charges, which

237 Id. ¶ 50. 238 Id. ¶ 52. 239 Id. ¶ 50. 240 Id. ¶¶ 47, 59. 241 Id. ¶ 53. See generally Sarah M.H. Nouwen, “The Special Court for Sierra Leone and the Immunity of Taylor: The Arrest Warrant Case Continued,” 18 Leiden J. Int’l L. 645, 651 (2005); contra James L. Miglin, “From Immunity to Impunity: Charles Taylor and the Special Court for Sierra Leone,” 16 Dalhousie J.L. Stud. 21 (2007); Micaela Frulli, “Piercing the Veil of Head of State Immunity: The Taylor Trial and Beyond,” in The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law 325–339 (Charles C. Jalloh ed., 2014). See generally Annie Gell, “Lessons from the Trial of Charles Taylor at the Special Court for Sierra Leone”, in The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law 642–62 (Charles C. Jalloh ed., 2014) (providing a post-trial completion analysis). 242 Transcript of Record at 14, Prosecutor v. Taylor, Case No. SCSL-03-01-T (Apr. 3, 2006), http://www.rscsl.org/Documents/Transcripts/Taylor/3April2006.pdf. 243 Id. 244 Id. 245 Id. Law and Politics of the Taylor Case 305 he thereafter did.246 Interestingly, the defendant never again asserted immunity, even during the appeal of his conviction. It seemed as if he realized that any further attempt to assert immunity would not lead to a different outcome for his case. So he essentially gave up the fight.247

5.2 The Debate about Where to Try Taylor After his arrest and arraignment, at the seat of the SCSL in Freetown, yet another controversy arose in the Taylor case related to the venue of his trial.248 All the other SCSL suspects were tried in the Sierra Leonean capital.249 But, even before his initial appearance, Taylor knew that his case would be different. This was confirmed when it was rumored that he would likely be transferred to The Hague. For that reason, on the very first day that he appeared before the SCSL, Taylor expressed preference to be tried in Sierra Leone.250 Taylor noted particular concern about his fair trial rights and ability to obtain witnesses.251 The proximity of the SCSL to his home country, Liberia, where he had most of his family, was also naturally important to him.252 In fact, the day after Taylor’s arrival in Freetown, the President of the SCSL submitted requests to the Netherlands and the ICC to facilitate the relocation of the trial to The Hague.253 At that point, the ICC had an empty courtroom without any defendants. Under the SCSL Statute and Rules, the SCSL could sit outside Sierra Leone whenever this would be necessary for the exercise of its functions.254 The Dutch government immediately agreed to host the trial, provided certain conditions could be fulfilled.255 This included acceptance by

246 Id. 247 See Dapo Akande, “International Law Immunities and the International Criminal Court”, 98 Am. J. Int’l L. 407, 407–33 (2004) (for a lucid exposition on the question of immunity). 248 See Charles C. Jalloh, “Special Court for Sierra Leone Dismisses Taylor Motion against Change of Venue,” 10 Asil Insights (2006), available at http://www.asil.org/insights/volume/10/ issue/15/special-court-sierra-leone-dismisses-taylor-motion-against-change-venue. 249 Tristan McConnell, “Liberia: Warlord on Trial,” Minnpost, July 14, 2009, at 1, available at http://www.minnpost.com/global-post/2009/07/liberia-warlord-trial. 250 Transcript of Record – Nov. 10, 2009, supra note 160, at 31547–53. 251 Id. 252 Id. 253 Press Release, supra note 20. 254 Id.; Special Court for Sierra Leone R. P. & Evid. 4. 255 Permanent Rep. of the Netherlands to the U.N., Letter dated 31 March 2006 from the Permanent Rep. of the Netherlands to the United Nations addressed to the President of the Security Council, U.N. Doc. S/2006/207 (Apr. 3, 2006). 306 Jalloh another state to host Taylor in the event he was convicted.256 The ICC, after carrying out internal consultations and notifying its states’ parties, none of which objected to the idea, also consented to the use of its facilities.257 A delay of several weeks then followed when no African or other country volunteered to detain a convicted Taylor until the British government offered to do so on June 15, 2006.258 While the security rationale offered for moving the trial seemed to have merit, there was considerable pushback from it, especially from within the human rights community in Sierra Leone and the United States. Matters were not helped by the government appearing to contradict the SCSL position. Key officials, including the vice president who had been Sierra Leone’s minister of justice and attorney general during the establishment of the tribunal, Solomon Berewa, stated publicly that he did not think security was an issue.259 But, he changed his mind just days later.260 It was unclear what motivated the new stance. It has been suggested that maybe there was new information suggesting such threats were credible.261 The more likely scenario might have been that the decision had already been taken outside of Sierra Leone, perhaps in Washington, which enjoys considerable influence driving the official policies of Monrovia and the United Nations. The views of the Liberian government, which was not a party to the SCSL process as such, were also relevant, though complicated. On the one hand, the newly elected President Sirleaf was concerned about security, given that Taylor retained some domestic political support in the country.262 On the other hand, his prosecution at the SCSL was not her priority.263 The business of governing

256 Id. at 3. 257 Press Release, Security Council, Security Council Approves Trial Transfer of Former Liberian President Charles Taylor to Netherlands, U.N. Press Release SC/8755 (June 16, 2006). 258 “Trying Charles Taylor in The Hague: Making Justice Accessible to Those Most Affected,” 2 Human Rights Watch 1, 1 (2006), http://www.hrw.org/reports/2006/06/21/ trying-charles-taylor-hague. 259 See generally Lydia Polgreen & Marlise Simons, “Sierra Leone Asks to Move Liberian’s Trial,” N.Y. Times (Mar. 31, 2006), http://www.nytimes.com/2006/03/31/world/africa/31liberia. html?fta=y&_r=0. 260 “UN Agrees to Hague Trial for Taylor,” Aljazeera (June 16, 2006), http://www.aljazeera. com/archive/2006/06/2008410113020793618.html. 261 See generally Trying Charles Taylor in The Hague, supra note 258, at 2–3. 262 Id. at 3. 263 “Taylor ‘not priority’ for Liberia,” BBC News (Jan. 27, 2006, 4:02 PM), http://news.bbc. co.uk/2/hi/africa/4655186.stm. Law and Politics of the Taylor Case 307

Liberia was more important than the fate of a single Liberian who happened to be a former enemy. Yet, to rebuild Liberia, she needed foreign aid from friendly governments, especially the United States. In the end, the compromise was that President Johnson Sirleaf would request that Nigeria transfer Taylor to the SCSL.264 She was unequivocal that, for security reasons, she preferred he not be tried next door in Sierra Leone.265 For the SCSL prosecution, whose work would have been considered a failure by many in Sierra Leone and overseas if it did not get to try its number one suspect, the movement of the key case to another venue seemed like a price worth paying in exchange for Liberia’s request for his arrest and transfer into its custody.266 At the U.N. Security Council, urgent consultations followed Taylor’s arrest and arraignment at the SCSL in order to resolve the conditions that the Dutch government had imposed before it would accept the trial. In Security Council Resolution 1688, which paved the way for Taylor’s transfer to The Hague, the Security Council determined that Taylor could not be tried in the West Africa “subregion due to the security implications.”267 The decision also determined that Taylor’s “continued presence” in the sub-region was “an impediment to stability and a threat to the peace of Liberia and of Sierra Leone and to international peace and security.”268 It further noted that it was “not feasible for the trial of former President Taylor to be hosted at the premises of the [ICTR] due to its full engagement on the completion strategy.”269 This implied that some consideration was given to the idea of trying Taylor somewhere else in Africa. Yet, the actual extent of that evaluation is largely unknown. We can accept that, under prevailing international law, the Security Council does – and more normatively, should – enjoy wide discretion to make

264 “Liberia: President Requests Surrender of Taylor,” Human Rights Watch (Mar. 17, 2006), http://www.hrw.org/news/2006/03/17/liberia-president-requests-surrender-taylor. 265 Id. 266 Press Release, Special Court for Sierra Leone, The Prosecutor’s Meeting with Civil Society of Sierra Leone, 31 March 2006, at 5 (Apr. 12, 2006) (on file with the Special Court for Sierra Leone’s Office of the Prosecutor), available at http://www.rscsl.org/Documents/Press/ OTP/prosecutor-041206.pdf. 267 See S.C. Res. 1688, pmbl., U.N. Doc. S/RES/1688 (June 16, 2006). 268 Id. The Dutch Government had apparently insisted that the resolution, which was drafted by Britain, be adopted under Chapter VII authority. This would enable it to have the legal basis for subsequent actions under national law. Russia did not oppose the motion, which passed unanimously with 15 votes, but observed that this was an “exceptional” decision that did not set a “precedent for resolving similar issues in the same way.” See U.N. SCOR, 61st Sess., 5467th mtg. at 2, U.N. Doc. S/PV.5467 (June 16, 2006). 269 S.C. Res. 1688, supra note 267. 308 Jalloh

determinations of what constitute threats to international peace and security. All the more so because, as the ICTY Appeals Chamber confirmed in the Tadic case, the U.N. body is often faced with fluid situations.270 It is thus generally better placed to determine, as a political and legal matter under Chapter VII of the U.N. Charter, what amounts to threats or breaches to the peace and security of the world.271 And, equally importantly, it is better placed to determine what forcible and non-forcible measures to take to redress such security concerns.272 That is, in many ways, the essence of its mandate. Nonetheless, the Security Council’s determination that sending Taylor to the ICTR or another African State was not feasible seems somewhat contestable. The ICTR reportedly was quickly consulted.273 It replied to the Secretary- General that it was engaged upon its completion strategy.274 It is unclear whether further reasons were given or whether further consultations took place. However, the fact that the completion plan was in place did not mean that the SCSL needed to encumber the ICTR in any significant way for the purposes of carrying out its single Taylor trial in Arusha, or more to the point, that alternative arrangements could not have been made for another trial venue in Tanzania. It is also unclear whether the Security Council considered other African States, including those in west, east or even central Africa, for the purpose of hosting the trial and whether it sought AU support for the idea of an in continent trial. Working with the AU and the United Nations, one might have expected that the SCSL could have more easily made arrangements for the Taylor trial in an African country with closer proximity to Freetown. Even more importantly, especially for a tribunal operating on donations and the goodwill of states, the cost of such an undertaking would have also been cheaper for the SCSL than the financial burden that later resulted from use of the ICC facilities. In any event, based on what the public knows, a critical look at the security rationale for moving the Taylor case casts serious doubt on its veracity. For one thing, the SCSL had in its custody other personalities who enjoyed more popular support in Sierra Leone.275 Yet, none of them were transferred out of Sierra Leone. If anything, the threats from the supporters of Sankoh, the erstwhile leader of the RUF who eventually died in custody, were probably

270 Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶¶ 29, 31 (Int’l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995). 271 Id. ¶¶ 33–36. 272 Id. 273 See generally S.C. Res. 1688, supra note 267, at 2. 274 See generally id. 275 See Tejan-Cole, supra note 79, at 219–20. Law and Politics of the Taylor Case 309 greater than that of Taylor, at least to Sierra Leoneans.276 Thousands of former RUF combatants, including notorious commanders, roamed the streets of Freetown freely. Similarly, Norman, the deputy minister, was seen as a national hero for leading the CDF against the RUF.277 He too was detained at the SCSL facilities in Freetown.278 Although it is true that after his arrest, the tribunal did briefly explore the prospect of transferring him to the ICTR for security considerations,279 in the end, he was kept in the same place of detention as Taylor and the rest of the other Sierra Leoneans. There were no serious security incidents from troublemaker supporters. Yet, with Taylor, on June 20, 2006, despite civil society’s and his own attempt to forestall that decision in the hope of remaining in Freetown, he was secretly transferred to The Hague.280 Finally, without oversimplifying the matter, the SCSL was ensconced in a “heavily fortified” compound with twenty-four hour security provided by hundreds of seasoned U.N. peacekeepers.281 Among the visible security was a high barbed-wire fence, video surveillance equipment, metal detectors, guard posts with armed soldiers, and even an armored personnel carrier.282 On top of that, only a stone’s throw away from the SCSL building in New England were two of Sierra Leone’s largest army bases: Wilberforce and Murray Town Barracks. They too could provide security backup. In other words, I am skeptical that – for all its significance for Sierra Leoneans – less drastic measures than transferring Taylor out of Sierra Leone were fully explored and first exhausted by the SCSL and the U.N. Security Council before Taylor was sent to The Hague. Criminal justice, whether at the national or international levels, aspires to give victims a measure of justice. That justice is obviously better served and more likely better received, as the U.N. Secretary-General has concluded in a review of best practices, if those victims get a chance to see their alleged number one tormentor face justice. To the extent that criminal trials bring closure,

276 And, clearly, Taylor’s case had the transborder dimension of having to account for Liberia’s security fears where claims of a threat from within would perhaps be more credible. Id. 277 “Comment to Norman’s Price for Loyalty,” New Vision (Feb. 2, 2006) (on file with the Special Court for Sierra Leone’s Press and Public Affairs Office). 278 Id. 279 Id. 280 The Prosecutor vs. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa: The Defence Case, Special Court for Sierra Leone: Residual Special Court for Sierra Leone, http://www .rscsl.org/CDF.html (last visited Mar. 1, 2015); Lansana Fofana, Mixed Feelings over Charles Taylor’s Transfer, Inter Press Service (June 20, 2006), http://www.ipsnews.net/2006/06/ west-africa-mixed-feelings-over-charles-taylors-transfer-to-the-hague/. 281 See Tejan-Cole, supra note 79, at 220. 282 Id. 310 Jalloh

witnessing justice first hand is more likely to bring such closure to the victims and their families. On the other hand, to be fair to the SCSL, it is plausible that it had intelligence through governments giving credible warnings about security threats that followed Taylor’s arrest and incarceration in Freetown. But, if any such a thing existed, the information was never made public. Indeed, even as many Sierra Leonean parliamentarians and civil society rallied against Taylor’s transfer outside the country, the SCSL failed to mount a robust effort to justify or explain the decision to move the trial to the Netherlands. The lack of transparency exacerbated the suspicions of the real motive behind the move, which was to get the defendant into its custody without necessarily worrying about where he would be tried. In the end, although there would have been some who breathed easier after the trial was moved outside West Africa, many Sierra Leoneans were left frustrated with the decision to take Taylor to Europe.283 It is unfortunate that, especially when combined with the general lack of accessibility of his trial, the people in Sierra Leone and Liberia who were more likely to have been sobered by the lesson of seeing Taylor in the dock were cheated of that opportunity. In short, to have maximized the impact of the historic trial, the proceedings should have been held locally. This after all was said to be a core advantage of the SCSL, sitting in the locus criminis, over its sister ICTY and the ICTR – both of which had been criticized for their geographic distance to the communities in whose names they were asked to render credible justice. As a former SCSL and Sierra Leonean prosecutor Abdul Tejan-Cole has rightly argued, the choice to move Taylor’s case to Europe served not only to highlight the complex politics involved in high profile mass atrocity cases, but also to blur the line between the legal and political.284 Another Sierra Leonean lawyer, Alpha Sesay, was even more critical. He suggested that transferring the trial of the star accused outside the country undermined the “whole reason for having the Court in Sierra Leone in the first place,”285 and in particular, deprived his alleged victims “of the justice that they deserve.”286 I share in these views of my compatriots. Other negative impacts of the change of venue of the Taylor trial can be discerned. These include the manifold increase in the cost of the trial for the

283 “Sierra Leone: The Justice Experiment,” AllAfrica (Aug. 4, 2006), http://allafrica.com/ stories/200608040839.html. 284 See Tejan-Cole, supra note 79, at 219–20. 285 Alpha Sesay, “Liberia: Trying Charles Taylor: Victims’ Justice Cannot Be Fully Achieved At the Hague,” AllAfrica (Apr. 19, 2006), http://allafrica.com/stories/200604190306.html. 286 Id. Law and Politics of the Taylor Case 311

SCSL, the complications that arose in dealing with witnesses who had to travel outside of West Africa to testify, and the confusion and disagreements between the SCSL and the ICC over who had responsibility for Taylor’s conditions of detention. Many additional controversies arose, including whether a video camera should record his confidential meetings with his lawyers,287 whether he was entitled to family visits paid by the SCSL,288 whether he was entitled to culturally appropriate African instead of Dutch food alien to his Liberian palate,289 whether he should receive conjugal visits from his wife,290 and so on. On top of all these, once the ICC had its own cases, the SCSL was asked to move out.291 This forced the SCSL to relocate mid-trial to the premises of the Special Tribunal for Lebanon, where the case was completed.292 These challenges added yet more avoidable delays and controversies to the trial.

6 The Controversies at the Opening and Closing of the Charles Taylor Trial

Both the opening and closing of the Taylor trial were highly dramatic affairs. While the first was a result of a strategy that the accused had devised with his provisional defense counsel, Karim Khan (a chapter contributor to this volume), the second can be attributed to his defense team which failed to turn in the final trial brief when it was due. The latter situation, which will be considered after discussion of the first, was then compounded by a short-sighted decision of the majority of Trial Chamber II to reject Taylor’s final brief. This caused a disruption requiring the Appeals Chamber to intervene before deliberations on his guilt or innocence could begin. The final dramatic scene, as the curtain was drawn on the case, came from an even more surprising quarter: a judge.

287 Katy Glassboro, “‘Turf War’ Over Charles Taylor Case,” 104 ACR 2 (2007), available at https://iwpr.net/global-voices/turf-war-over-charles-taylor-case. 288 See generally Prosecutor v. Taylor, Case No. SCSL-03-01-PT, Public Defence Application Requesting Review of the Memorandum of Understanding Between the International Criminal Court and the Special Court of Sierra Leone Dated 13 April 2006 & Modification of Mr. Charles Taylor’s Conditions of Detention, 3624 (Dec. 14, 2006). 289 Alexandra Hudson, “ICC Enlists Expert Help to Cater for Taylor,” GoogleGroups (June 6, 2007, 1:06 PM), https://groups.google.com/forum/#!topic/croatian-news/g5Dz9bgYYsk. 290 Id. 291 Charles C. Jalloh, “Charles Taylor and the Delayed Special Court for Sierra Leone Judgment,” Jurist 7 (Feb. 23, 2012, 6:00 PM), http://jurist.org/forum/2012/02/charles-jalloh- taylor-scsl.php. 292 Id. 312 Jalloh

6.1 The Dramatic Courtroom Walkout and the Ensuing Delay Monday, June 4, 2007, was supposed to be the big day for the prosecution. All openings of major trials are. It is typically a day for the prosecution to outline the barebones of its case against the defendant, sometimes with great rhetori- cal flourish, more for public than judicial consumption. The defendant and his lawyer generally sit in the courtroom and listen to the allegations without much interruption, save for exceptional circumstances. They would later get their turn to set out the defense case, and commensurately, would enjoy the same courtesy. But, in the kind of dramatic twist that came to characterize each stage of the Taylor case, when the matter of Prosecutor v. Charles Ghankay Taylor was called around 10:30 a.m. that morning in ICC Courtroom I in The Hague, Khan gave a bombshell of an explanation for his client’s absence from the courtroom: Taylor was not coming to court, and even worse, had no plans to return.293 Instead, in a letter Khan passionately read out to the court, Taylor explained that he had been denied equality of arms with the prosecution as well as adequate time and facilities to prepare his defense as well as ability to consult the Court’s Principal Defender, Vincent Nmehielle.294 As he believed he would not receive a fair trial, he would henceforth not participate in a sham process.295 He also fired Mr. Khan in favor of representing himself personally.296 The problem for the judges was that Taylor was not in court. This meant that barring proceeding without him or his being dragged into the courtroom, as the prosecution suggested, the opening could not proceed. Instead of ordering that Taylor be forced to court, which would have caused a highly problematic spec- tacle of a defendant bound and gagged, the trial chamber sensibly responded with an order assigning Mr. Khan to represent the defendant.297 But he insisted that it would be unethical for him to do so, even after he was threatened with contempt of court, as this would mean that he had been forced upon the defendant who no longer wanted his legal representation.298 Khan claimed that he

293 See Transcript of Record at 242, Prosecutor v. Taylor, SCSL-03-01-T (Jun. 4, 2007), http:// www.rscsl.org/Documents/Transcripts/Taylor/4June2007.pdf; see also David Pallister & Chris McGreal, “Taylor Boycotts War Crimes Trial,” Guardian (June 4, 2007), http://www .theguardian.com/world/2007/jun/04/westafrica.libya. 294 Id. 295 Id. 296 Id. 297 Pallister & McGreal, supra note 293. 298 Richard J. Wilson, “‘Emaciated’ Defense or a Trend to Independence and Equality of Arms in Internationalized Criminal Tribunals?”, 15 Human Rights Brief, no. 2 (2008), at 2, available at http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1014&cont ext=hrbrief. Law and Politics of the Taylor Case 313 was barred by both the SCSL code of conduct for defense counsel and the rules of his national bar from accepting the appointment once his services had been terminated by his client.299 The presiding judge was not deterred, countering that “your Code of Conduct cannot override a court order which I made a few minutes ago.”300 The judge asked Mr. Khan to sit down. She then invited the prosecution to continue with its opening statement, and at that point, Taylor’s defense counsel dramatically picked up his materials and walked out of the courtroom.301 It was at that stage, consistent with SCSL and other ad hoc tribunal practice that I was asked to take charge of the proceedings for the duration of the opening statements and until replacement counsel was assigned.302 The SCSL’s American chief prosecutor, Stephen Rapp, then read out his opening statement.303 I did not make any objections. After the prosecution opening concluded, the chamber adjourned the proceedings, but not before inquiring into and ordering that all of Taylor’s complaints be swiftly addressed by the SCSL Registrar and the Defense Office.304 The latter prepared an internal report setting out its independent views of the merits of the defendant’s concerns, which then formed the basis for resolution of the thorny issues. Taylor’s risky gamble, which had been largely forced by the short sighted decisions of the then SCSL Acting Registrar who had failed to heed the Defense Office’s warnings, had paid off. In short order, by early August 2007, the Defense Office – which had now been allocated more money for the Taylor Defense team – had found and assigned new defense counsel for Mr. Taylor.305 It was the kind of handsomely paid defense team that the public defender’s office had always internally insisted that Taylor needed to receive a fair trial.306 All the more so given the size and complexity of his case and its geographic divorce from the seat of the SCSL in Freetown and the locus commissi delicti. Led by Courtenay Griffiths, an unassuming but “silver-tongued” British Queen’s Counsel with a baritone voice, the team would later prove its mettle vigorously testing the prosecution

299 Id. 300 Id. 301 Jason McClurg, “New Defense Counsel Appointed for Charles Taylor,” Int’l Enforcement Law Reporter (Sept. 2007), available at http://www.rscsl.org/Clippings/2007/2007-08/pc 2007-8-24.pdf. See also Wilson, supra note 298. 302 McClurg, supra note 301. 303 Id. 304 Wilson, supra note 298. See Transcript of Record at 242, Prosecutor v. Taylor, SCSL-03-01-T (Jun. 4, 2007), http://www.rscsl.org/Documents/Transcripts/Taylor/4June2007.pdf. 305 McClurg, supra note 301. 306 Id. See also Wilson, supra note 298. 314 Jalloh case in the courtroom. Ironically, the new defense team – unlike the previous provisional counsel – was given several months to study the thousands of pages of disclosure and to prepare for the cross examination of prosecution witnesses.307 With Taylor’s goals to have a top notch defense team, and adequate time for them to prepare having being achieved, I convinced the suspect to end his boycott and return to court to participate in his trial. It was a big moment for the SCSL trial of Taylor. The prosecution held press conferences, painting Taylor’s actions as those of the devious manipulator that he was. But, once he got what he wanted, this claim was effectively repudiated. Taylor did not engage in any of the antics or contumacious behavior we have witnessed in other high profile international criminal tribunal cases like Milošević308 at the ICTY. The trial was adjourned for a few months. This experience suggests the need to keep an open mind when fair trial complaints are raised by defendants as there will be times, such as in Taylor, when these concerns have validity and are not aimed at manipulating the process for political gain.

6.2 Of Flirtatious Warlords, Super Models, and “Dirty Looking” Stones In early January 2008, the Taylor case resumed.309 The prosecution called its first of ninety-four witnesses.310 Ninety-one of those witnesses were so-called crime base or linkage witnesses, while three were experts.311 A key highlight to the trial, at least for the Western media, which had largely ignored the oral evidence phase of the Taylor case up to that point, was the intrigue surrounding the

307 Eric Witte, “Court Delays Taylor Trial until January 7, 2008,” Int’l Justice Monitor (Aug. 20, 2007), http://www.ijmonitor.org/2007/08/court-delays-taylor-trial-until-january-7-2008/. 308 For references by the Tribunal of Milošević misusing hearings and cross-examinations as a platform for making political speeches, see Prosecutor v. Milošević, Case No. IT-02-54-T, Initial Appearance (Int’l Crim. Trib. for the Former Yugoslavia July 3, 2001); Prosecutor v. Milošević, Case No. IT-02-54-T, Status Conference (Int’l Crim. Trib. for the Former Yugoslavia Oct. 30, 2001); Prosecutor v. Milošević, Case No. IT-02-54-T, Open Session (Int’l Crim. Trib. for the Former Yugoslavia Nov. 10, 2004); Prosecutor v. Milošević, Case No. IT-02-54-T, Hearing (Int’l Crim. Trib. for the Former Yugoslavia Nov. 10, 2004); Prosecutor v. Milošević, Case No. IT-02-54-T, Pre-Defense Conference (Int’l Crim. Trib. for the Former Yugoslavia June 17, 2004). See Charles C. Jalloh, “Does Living by the Sword Mean Dying by the Sword?”, 117 Penn St. L. Rev. 707, 707–53 (2013) (discussing the issues of disruption that arose in that case and several others in international criminal law and the implications of the rights of defendants). 309 Wilson, supra note 298. 310 Open Society Justice Initiative, The Trial of Charles Taylor by the Sierra Court for Sierra Leone: The Judgment 4 (Open Society Justice Initiative ed., 2012). 311 Id. Law and Politics of the Taylor Case 315 testimony of British supermodel Naomi Campbell and American Hollywood star Mia Farrow. An apparently fearful Campbell testified about receiving rough “dirty-looking stones” or “pebbles” from an unknown person – a reference to the diamonds that Taylor gifted to Campbell after “mildly flirting” with her at a dinner hosted in Pretoria by then South African President, Nelson Mandela, on September 26, 1997.312 Besides the viva voce witnesses, nearly eight hundred prosecution exhibits were admitted into evidence, five of which were expert reports.313 The crux of the prosecution case took just over a year, closing finally on February 27, 2009.314 For its part, the defense case opened on July 13, 2009.315 Twenty-one witnesses were called.316 Taylor, in remarkably lengthy testimony, spent over seven months on the stand between July 14, 2009 and February 18, 2010.317 It seems highly uncertain that giving such testimony was a wise decision. Not to be outdone by the prosecution, the defense tendered about 740 exhibits, bringing to over 1,500 the documents and photographs relating to Taylor’s case.318 In a trial that in fact lasted a total of 420 days, over the course of four calendar years, closing arguments were finally heard in February and March of 2011.319 By that point, the trial chamber had issued nearly three hundred decisions on interlocutory matters.320 Though the two last incidents that punctuated the end of Taylor’s trial did not match the kind of high drama that characterized the opening of his case on June 4, 2007, when Taylor refused to attend proceedings and his assigned counsel walked out of the courtroom, they were dramatic nevertheless. In the first of these, the responsibility lay with defense lawyers, not their client. They final- ized the closing brief and filed it about two weeks later than the chamber had specified.321 As a result, two of the three trial chamber judges rejected the brief,

312 Transcript of Record at 45819–20, Prosecutor v. Taylor, SCSL-03-01-T (Aug. 10, 2010), http://www.scsldocs.org/transcripts/Charles_Taylor/2010-08-10. 313 Prosecutor v. Taylor, SCSL-03-1-T, Judgment Summary, ¶ 5 (Apr. 26, 2011), http://www .globalsecurity.org/military/library/report/2012/charles-taylor-judgement-summary_ 20120426.pdf. 314 Id. 315 Id. ¶ 6. 316 Id. 317 Id. 318 Taylor, SCSL-03-1-T, Judgment Summary, ¶¶ 6, 8. 319 Id. ¶¶ 7–8. 320 Id. ¶ 8. 321 Prosecutor v. Taylor, SCSL-03-1-T, Decision on Late Filing of Defense Final Trial Brief, ¶ 3 (Feb. 7, 2011), http://www.rscsl.org/Documents/Decisions/Taylor/1191/SCSL-03-01-T-1191.PDF. 316 Jalloh holding that the defense counsel had forfeited its chance to have the chamber use the brief during its deliberations.322 In stark contrast, in a lucid dissenting opinion, Judge Julia Sebutinde found that the interests of justice and demands of a fair trial for Taylor mandated that the chamber accept his brief even if it was late and contravened an earlier order made by the judges.323 She offered compelling arguments which turned on the substantive right of the accused to a fair trial to support her dissent, pointing out that a procedural irregularity such as a late filing of a brief by an accused person’s counsel is insufficient to displace the fundamental fair trial rights he was guaranteed under the Statute of the SCSL.324 Of course, on one level, the argument could be made that such a position encourages defense lawyers to flout court orders. At the same time, the other side of the issue is to consider the weight of failure to comply with this particular order for the defendant. Certainly, as officers of the court, the majority court could have chosen to show their approbation by sanctioning counsel by withholding fees, fining them, or reporting them to their national bars for failure to abide by its deadlines. This might have been the better approach as it would also recognize that the interests of the defendant were substantially different, in such an instance, from those of his lawyers. In any event, given the majority ruling, both Griffiths and Taylor refused to come to court, with counsel stating that he would not participate in any “farcical”325 closing arguments until the defense final brief was accepted.326 The Taylor defense thereafter appealed the majority trial chamber decision.327 And, sure enough on March 3, 2011, the Appeals Chamber unanimously overturned the erroneous majority ruling.328 The appellate court found it only fair

Of course, in other contexts too, lawyers sometimes miss deadlines that have cost their clients and raised issues of professional responsibility. See, for a thoughtful article on this point, Rosario L. Schrier and Annette Torres, “Before Midnight: Deadlines, Diligence, and the Practice of Law,” The Federal Lawyer 68–73 (Dec. 2014). 322 Id. at 33946. 323 Id. ¶¶ 6–17. 324 Id. 325 Transcript of Record at 49290, 49294–95, Prosecutor v. Taylor, SCSL-03-01-T (Feb. 9, 2011), http://www.scsldocs.org/transcripts/Charles_Taylor/2011-02-09. 326 See id. ¶¶ 49294–25. 327 Prosecutor v. Taylor, SCSL-03-1-T, Decision on Defense Motion Seeking Leave to Appeal the Decision on Late Filing of Defense Final Trial Brief, at 2 (Feb. 11, 2011), http://www .scsldocs.org/documents/view/6483-18783. 328 Prosecutor v. Taylor, SCSL-03-01-T, Decision on Defense Notice of Appeal and Submission Regarding the Decision on Late Filing of Defense Final Trial Brief, ¶ 67 (Mar. 3, 2011), http://www.scsldocs.org/documents/view/6513-6513. Law and Politics of the Taylor Case 317 that the trial judges receive the final brief alongside that of the prosecution.329 This was duly done. The final defense oral arguments took place just days later.330 The chamber then retired for deliberations until they scheduled the judgment day. That prompted a minor controversy because the day happened to be the one before Sierra Leone’s national anniversary.331 The defense unsuccessfully argued for a date change to avoid the specter that a Taylor conviction would be perceived as a gift to Sierra Leoneans for their national day celebrations.332 On April 26, 2012, just over a year after the conclusion of the prosecution and defense cases, the long awaited verdict in the Taylor case was issued.333 Trial Chamber II, sitting in The Hague and comprised of Judges Richard Lussick, Julia Sebutinde, and Teresa Doherty, issued a unanimous judgment.334 As was widely reported thereafter, the judges found Taylor guilty of five counts of crimes against humanity, five counts of war crimes, and one count of other serious violations of international humanitarian law.335 Most of the acts were perpetrated by the RUF rebels acting in concert with mutinying elements of the Sierra Leone Army known as the AFRC in the period between November 30, 1996 and January 18, 2002.336 Taylor was convicted as a secondary perpetrator (i.e. as a planner, aider and abettor) of murder, rape, enslavement, sexual slavery, acts of terrorism, pillage, outrages upon personal dignity, violence to life, health, and physical or mental well-being of persons.337 He was also found guilty of conscripting or enlisting children under fifteen years of age into the service of armed forces, or groups, and using them to participate actively in

329 Id. 330 “The Prosecutor vs. Charles Ghankay Taylor: Closing Arguments,” Special Court for Sierra Leone: Residual Special Court for Sierra Leone, http://www.rscsl.org/Taylor.html (last visited Mar. 1, 2015). 331 Charles C. Jalloh, “Scheduling Judgment Day: Ending the Charles Taylor Trial,” Jurist (Mar. 29, 2012), http://jurist.org/forum/2012/03/charles-jalloh-scsl-judgment.php. 332 Id. 333 Marlise Simons, “Ex-President of Liberia Aided War Crimes, Court Rules,” N.Y. Times (Apr. 26, 2012), http://www.nytimes.com/2012/04/27/world/africa/charles-taylor-liberia- sierra-leone-war-crimes-court-verdict.html?pagewanted=all&_r=0&pagewanted=print. 334 Faith Karimi & Moni Basu, Court Finds Charles Taylor Guilty of Aiding War Crimes, CNN (Apr. 26, 2012, 7:14 PM), http://www.cnn.com/2012/04/26/world/africa/ netherlands-taylor-sentencing/. 335 Id.; Open Society Justice Initiative, Briefing Paper: The Trial of Charles Taylor by the Special Court for Sierra Leone: The Appeal Judgment (2013), available at http:// www.opensocietyfoundations.org/sites/default/files/charles-taylor-appeal-brief- 20130924_0.pdf. 336 See Open Society Justice Initiative, supra note 335. 337 Id.; Karimi & Basu, supra note 335. 318 Jalloh hostilities.338 In an interesting twist, the judges refused to use JCE and the prosecution failed to prove Taylor’s command responsibility – both modes of liability that everyone had expected would be crucial to the outcome of the case.

6.3 Dissension on the Bench: A Regular (Not) Alternate Judge? But if the Trial Chamber was trying to avoid its significant conviction from being overshadowed by doctrinal or other debates about the shifting JCE theories or criminal participation that the prosecution advanced against Taylor from the beginning through to the end of trial, this was not destined to be. On this occasion, the seeds of the final trial drama came from within the judicial chamber itself. After the presiding judge concluded delivery of the oral summary of the unanimous three-judge verdict convicting Taylor, and as the judges were rising to leave the courtroom, Alternate Judge Sow, who had been the fourth judge sitting on the case, attempted to make a public statement that he called a “dissenting opinion.” To him, the prosecution evidence was insufficient to convict Taylor.339 He then insinuated that a grave procedural irregularity had occurred in that the trial chamber reached its guilty findings without serious deliberations.340 The curtain was drawn. Judge Sow’s microphone was cut off, and in the subsequent published transcript of that day’s hearing, his statement was not included because the hearing was considered closed. This unfortunate incident immediately triggered another firestorm of controversy among legal commentators. These turned largely on the propriety of Sow’s decision to make a statement, given the established norm of silence by alternate judges in international criminal courts. Of course, the SCSL Statute341 provided for alternate judges and its rules mandated that reserve judges be present for deliberations, but clarified that they “shall not be entitled to vote”342 on the outcome of the trial. This makes sense because the alternate judge should be able to step in at a moment’s notice to ensure the continuity of a trial if, for whatever reason such as grave illness, death or sudden mental infir-

338 See Open Society Justice Initiative, supra note 335. 339 U.C. Berkeley War Crimes Studies Center, “Special Report on Rule 98 Pleadings in the Prosecutor v. Charles Taylor: Defense Motion for Acquittal on Basis of Insufficient Evidence,” Int’l Justice Monitor (Aug. 17, 2009), http://www.ijmonitor.org/2009/08/special- report-on-rule-98-pleadings-in-the-prosecutor-v-charles-taylor-defense-motion-for- acquittal-on-basis-of-insufficient-evidence/. 340 See Open Society Justice Initiative, supra note 335. 341 Statute of the Special Court for Sierra Leone art. 12, Jan. 16, 2002, 2178 U.N.T.S. 138. 342 Special Court for Sierra Leone R. P. & Evid. 16bis. Law and Politics of the Taylor Case 319 mity, one of the three regular judges were unable to continue sitting.343 That, of course, was never the situation during the Taylor case. Some commentators, like William Schabas, seemed sympathetic to Sow’s decision to speak.344 Others, such as Michael Bohlander and I, faulted Sow for speaking out.345 As I argued more fully elsewhere, Judge Sow was certainly entitled to formulate his views on the sufficiency, or lack thereof, of the prosecution evidence against Taylor. He was probably also equally entitled to share those views with his judicial colleagues during the chamber’s private deliberations. But it was improper to express those opinions in public, keeping in mind that the rules do not contemplate a substantive role for him in determining whether Taylor was guilty or not guilty.346 Indeed, given the various limitations imposed by the SCSL Statute and the Rules, Sow’s statement amounted to a public statement or comment. Unlike his contention, his remarks did not assume the legal character of a “dissenting opinion” – at least as that term is understood in international criminal courts. Furthermore, and arguably even worse, in addition to violating basic provisions of the statute and rules, his statement was inappropriate because it threatened to undermine public confidence in the fairness of the Taylor case and to tarnish the credibility of the SCSL’s process.347 Of course, the argument could always be made in defense of Alternate Judge Sow that he might have taken up the unusual role of a judicial “whistleblower” because the regular judges engaged in highly irregular practice. Say, for instance, that the chamber failed to comply with its own rules of procedure by not engaging in meaningful deliberations on the accused’s criminal culpability – as required by the hierarchically superior SCSL Statute. This odd situation would found a stronger claim to justify his far reaching public allegation. It might also have been easier to accept this if he had provided concrete evidence that could be

343 Id. 344 William A. Schabas, “What Happened to Judge Sow?”, PhD Studies in Human Rights (May 25, 2012), at http://humanrightsdoctorate.blogspot.com/2012/05/what-happened- to-judge-sow.html. 345 Michael Bohlander, “More on Judge Sow and the Special Court for Sierra Leone,” PhD Studies in Human Rights (Oct. 8 2012), http://humanrightsdoctorate.blogspot. com/2012/10/more-on-judge-sow-and-special-court-for.html; Charles C. Jalloh, “The Verdict(s) in the Charles Taylor Case,” Jurist (May 14, 2012), http://jurist.org/forum/2012/ 05/charles-jalloh-taylor-verdict.php. 346 The Verdict(s) in the Charles Taylor Case, supra note 345. 347 Charles C. Jalloh, “The Verdict in the Charles Taylor Case and the Alternate Judge’s ‘Dissenting Opinion’,” EJIL: Talk! (May 11, 2012), http://www.ejiltalk.org/the-verdict-in- the-charles-taylor-case-and-the-alternate-judges-dissenting-opinion/#more-4965. 320 Jalloh independently verified by third parties. And, whatever the case, he would likely have gained greater sympathy from independent observers for his unusual move if he had provided a reasoned opinion explaining his legal and factual conclusions about the Taylor case. He did not, at least publicly. Not surprisingly, although I was uncomfortable with information that later emerged about aspects of the disciplinary process that was subsequently used to declare Judge Sow unfit to sit as a judge, he seemed to have invited some sanction.348 He later gave a media interview elucidating his views. But additional substance that would have justified his decision to speak out still appeared lacking.349 It was an unfortunate end to his otherwise important service during the bulk of the historic Taylor trial. He was rumored to be the only judge to not miss a single day of hearings during a four-year period. In any event, on May 30, 2012, the Trial Chamber (now sitting without Judge Sow) sentenced Taylor to fifty years imprisonment.350 Both the prosecution and the defense appealed.351 The prosecution alleged four errors while the defendant raised forty-five grounds.352 The bulk of the prosecution appeal asserted that the trial chamber should have, in addition to finding Taylor guilty of planning as well as aiding and abetting, also convicted him for ordering and instigating the commission of crimes in Sierra Leone.353 They also contested the trial chamber ruling that evidence regarding certain locations not mentioned in the indictment could be admitted, and finally, sought an increase in his sentence from fifty to eighty years, which in their view better reflected the gravity of his crimes and overall criminal culpability.354 The defense appeal raised numerous issues. These tended to center on the chamber’s evaluation of the evidence, some of is factual findings that the RUF/‌AFRC operational strategy, which was known to Taylor and conceived

348 See Charles C. Jalloh, “Why the Special Court for Sierra Leone Should Establish and Independent Commission to Address Alternate Judge Sow’s Allegation in the Charles Taylor Case,” Jurist (Oct. 1, 2012), http://jurist.org/forum/2012/10/charles-jalloh-sow-scsl. php. 349 Interview with Justice Sow, Special Court for Sierra Leone Justice, in New African Magazine (Nov. 18, 2012), available at http://www.mediafire.com/view/?yb038o4vtrv87s8. 350 Transcript of Record at 49751, Prosecutor v. Taylor, Case No. SCSL-2003-01-T (May 30, 2012), http://www.scsldocs.org/transcripts/Charles_Taylor/2012-05-30. 351 Prosecutor v. Taylor, Case No. SCSL-03-01-A, Judgment, ¶ 15 (Sept. 26, 2013), http://www .rscsl.org/Documents/Decisions/Taylor/Appeal/1389/SCSL-03-01-A-1389.pdf. 352 Id. ¶ 723. 353 Id. ¶¶ 579–95. 354 For a summary of the parties’ key appeal points, and the appeals chamber rulings, see Charles C. Jalloh, “Prosecutor v. Taylor Case Report,” 108 Am. J. Int’l L. 58, 59 (2014). Law and Politics of the Taylor Case 321 with substantial help by him, marked a deliberate terroristic campaign against Sierra Leonean civilians.355 They also claimed that the chamber had misap- plied the law of individual criminal responsibility, that Taylor’s fair trial rights were violated in the entry of cumulative convictions, and further, that the trial judges erroneously used improper aggravating factors such as his head of state status while ignoring favorable mitigating factors in arriving at his manifestly unreasonable sentence.356 They also used some of Judge Sow’s contentions to challenge the guilty verdict.357 Finally, as with the other controversies that came to be associated with the pre-trial and trial phases of his case, during the appeal phase, the delivery of the judgment in the Taylor case in September 2013 was marked with some rancor – at least among some international criminal lawyers – about the proper legal standard for aiding and abetting as a mode of responsibility in international criminal law. Other developments at the ICTY, especially in the Perišic358 case, had suggested that aiding and abetting required that the accused person’s contribution to the commission of the crimes could be punished only if the abettor specifically directed his assistance towards the commission of the offenses in issue.359 This was significant for the Taylor case since, with the exception of his involvement in planning a few incidents, his conviction turned primarily on the trial chamber determination that he had aided and abetted the RUF’s commission of crimes in Sierra Leone. In their judgment released in September 2013, the SCSL Appeals Chamber denied nearly all the substantial defense appeals save for minor reversals of convictions entered against Taylor regarding one or two locations in Kono in Sierra Leone.360 They also rejected the Perišic articulation of the legal standard for aiding and abetting liability, finding it inconsistent with customary international law.361 Any practical assistance by an aider-abettor which had a substantial effect on the commission of crimes will incur individual criminal

355 Id. 356 Id. at 63. 357 See generally Prosecutor v. Taylor Case Report, supra note 354. For more analysis of the aiding, abetting and specific direction problem, see Mégret and Antsis (Chapter 15 of this volume). 358 Prosecutor v. Momčilo Perisic, Case No. IT-04-81-A, Judgment (Feb. 28, 2013), http://www .icty.org/x/cases/perisic/acjug/en/130228_judgement.pdf. 359 Id. ¶ 16. 360 See Prosecutor v. Taylor, Case No. SCSL-03-01-A, Judgment, ¶ 15 (Sept. 26, 2013), http:// www.rscsl.org/Documents/Decisions/Taylor/Appeal/1389/SCSL-03-01-A-1389.pdf. 361 Id. ¶¶ 473–81. 322 Jalloh responsibility.362 Regarding the sentence of fifty years, it was within the trial court’s discretion to decline to factor into mitigation Taylor’s insincere expressions of remorse.363 Save for one exception, they also rejected all the prosecution’s appeal.364 Overall, taking the totality of the circumstances, including the gravity of Taylor’s conduct, the Appeals Chamber upheld his conviction and the sentence. Within a few days afterwards, Taylor was transferred to the United Kingdom to serve out his sentence.365 Although under standard tribunal practice he would be eligible for release after serving about one third of his sentence, at the age of seventy years old when he was convicted, it is unlikely that Taylor will see the light of day outside HMS Falkland where he has been housed in a hospital for his own safety. Thus ends the story of one of Africa’s most notorious warlords.

7 Conclusion

This chapter has showed that Taylor’s status as the only non-Sierra Leonean to be tried by the SCSL, for acts he did not personally carryout in Sierra Leone, his stature as a sitting head of state at the time of his indictment, the transfer of his trial from Freetown to the Hague and his imprisonment in the United Kingdom were the key reasons why the case will be remembered as particularly controversial. But, as this paper also showed, the Taylor case had a pen- chant for generating controversy – sometimes because of mistakes made by tribunal officials or decisions made by the accused and his counsel. Indeed, at each step of the three main stages of the trial process before the SCSL – pre-trial, trial, and appeal – the case generated its own legal and political controversies: whether in relation to the timing of his indictment as possibly obstructing peace negotiations aimed at ending Liberia’s devastating civil war; or, whether as an incumbent head of state international law conferred immunity from prosecution on him; or, whether he should be allowed to live in Nigeria unmolested or to be arrested and transferred in order to be tried in Freetown or The Hague or whether his trial conviction should have been upheld by the SCSL appeals chamber. These controversies often posed unprecedented political, legal and even diplomatic and other practical challenges for the prosecution,

362 Id. 363 Id. ¶¶ 689–96. See Kevin J. Heller, “The Taylor Sentencing Judgment: A Critical Analysis,” 11 J. of Intl. Crim. Just. 835–855 (2013) (commenting on the Taylor sentence). 364 Id. 365 “Liberia’s Charles Taylor Transferred to UK,” BBC (Oct. 15, 2013), http://www.bbc.com/ news/world-africa-24537834. Law and Politics of the Taylor Case 323 the judges, and tribunal administrators. These types of challenges, which occur at the intersection of international law and international politics, should thus be expected to be part of the experience required in the management of trials of other former heads of state or government in other international criminal courts. The Taylor case concluded about a year ago with the final appeals chamber judgment issued in September 2013. It is still somewhat premature to definitively assess the full impact of the trial for Sierra Leone and his native Liberia, all of which are now enjoying relative serenity in the Mano River Basin of West Africa compared to the tumultuous decade of the 1990s. Yet, as the dramatic last finale for the SCSL which concluded his trial and then closed its doors in December 2013, the case was a major milestone. Partly because nearly all the other SCSL indictments related to suspects who were present in Sierra Leone, they were swiftly arrested and transferred to the custody of the tribunal. Much like the other aspects of his trial, when it came to Taylor, matters were markedly different. In fact, although the first actual indictee of the SCSL with the case number 2003-001, he was the last person to be tried by the SCSL. This was obviously not scripted. However, the coincidence of the delayed arrest and trial after the Freetown cases had been completed gave the effect of a crescendo to one of Beethoven’s concertos. Here, finally, was the Sierra Leone tribunal’s most important case involving its most important accused. From the prosecution’s perspective, the conviction of Taylor was a success, even if a somewhat qualified one.366 And, from the perspective of the defendant who had insisted on his innocence, it was a major loss. For the judges, it was the court’s longest and most voluminous trial, with the most public spotlight and perhaps even the most external and internal pressure to get things right. Yet, they shifted through mountains of oral and documentary evidence and issued a reasoned opinion that generally satisfied the requirements of a fair trial under the law. Interestingly, the Taylor case was the only one in the SCSL where the bench was unanimous on all issues – three judges at the trial as well as five in the appeals chamber; a total of eight judges. There were no formal dissents, as there were in all the other AFRC, RUF, and CDF cases. The implication was that, though the most controversial of all of the special tribunal’s cases, Taylor’s criminal responsibility (albeit for a much less influential role he played in the Sierra Leone war) was not subject to reasonable dispute. All the more so when read in light of the separate and independent conclusions of the Sierra Leone Truth and Reconciliation Commission.

366 William A. Schabas, “Charles Taylor Judgment Suggests a More Modest Level of Participation in the Sierra Leone Conflict,” PhD Studies in Human Rights (Apr. 28, 2012), http://humanrightsdoctorate.blogspot.com/2012/04/charles-taylor-judgment-suggests- more.html. 324 Jalloh

Finally, in terms of wider significance, since World War II, there have been several international tribunal prosecutions of former heads of state or government. At Nuremberg, German Admiral-turned-head of state Karl Doenitz who stepped in to replace Adolf Hitler after his suicide was prosecuted. In the ICTY, former Yugoslav President Slobodan Milošević, was tried but died of illness before his judgment could be rendered. At the ICTR, Rwandese politician Jean Kambanda, who was prime minister during the genocide, pled guilty to orches- trating genocide and crimes against humanity at the ICTR on May 1, 1998. At the ICC, former President Laurent Gbagbo (Ivory Coast) will soon be on trial while Sudan’s President Al Bashir remains at large, despite an indictment containing genocide and crimes against humanity charges against him. Viewed against this backdrop, the historic nature of Taylor being the first former president since Nuremberg to have been indicted, to contest the charges, and to be fully tried and then convicted before an international criminal court becomes self-evident. If nothing else, the case affirms that when there is political will, no immunity will attach to a current or former president when he is tried before an international court for international crimes. Prosecutor v. Charles Ghankay Taylor may thus go down in history as a sizeable drop in the anti-impunity bucket, whose ripples will be felt by future African warlords and rebel leaders as well as many other heads of state or government further afield. The wider implications of Taylor are certainly clear for the leaders of States that are in the habit of aiding and abetting rebels and providing arms, ammunition and other logistics to rebel groups for personal, political, economic or other gains. Although not free of difficulty, given all the legal and political controversies that surrounded it, the trial may even prove to be a giant step towards the idea that no man or woman – no matter how powerful – is above the reach of international criminal law. At least sometimes.367

367 I say sometimes both to signal the lack of accountability for others from more powerful states which undermines the presumed neutrality and thus popular legitimacy of modern international criminal law, but also to clarify that even within the context of Sierra Leone and Liberia, impunity seems to have prevailed for the crimes committed there. For the thoughtful suggestion that it might have been better to take a more (sub) regional instead of country specific approach to transitional justice in respect of the Sierra Leone and Liberia conflicts, see Matiangai Sirleaf, “Regional Approach to Transitional Justice? Examining the Special Court for Sierra Leone and the Truth and Reconciliation Commission for Liberia,” 21 Fl. J. of Int’l. L. 2 (2009). Part 5

Gender-Based Crimes under International Criminal Law

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Chapter 17 The Sexual and Gender-Based Crimes Policy Paper of the Office of the Prosecutor of the International Criminal Court

Fatou Bensouda

1 Introduction

The Akayesu judgment delivered in 1998 by the UN International Criminal Tribunal for Rwanda (the “ICTR”), was a clear signal of the international community’s resolve to take further steps towards advancing accountability for sexual and gender-based crimes. This pioneering case represented the first time in history that an accused was convicted for rape as an instrument of genocide under international law, and as a crime against humanity.1 In recent decades, the international community has taken additional measures, in recognising sexual and gender-based crimes as serious offences, and in prosecuting those accused of committing such horrific crimes. There is today an ever growing recognition that, through the effective investigation and prosecution of these crimes, the international community can contribute to their prevention. Indeed, international courts and tribunals such as the International Criminal Court (the “ICC” or the “Court”), the International Criminal Tribunal for the former Yugoslavia (the “ICTY”), and the ICTR, have important roles to play in this regard. The Statutes of the ICTY and the ICTR include rape as a crime against humanity.2 At the Rome Conference convened to establish the Court, States went further and agreed on explicit provisions in the Statute of the ICC (the “Statute”), recognising different forms of sexual and gender-based crimes as among the most serious crimes of concern to the international community as a whole. The Statute is the first instrument in international law that includes

1 Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement, ¶ 731 (Sept. 2, 1998). 2 The ICTR Statute recognises rape as a crime against humanity, but it also includes rape and enforced prostitution as forms of outrages upon personal dignity in its article 4, which is applicable to non-international armed conflicts. The ICTY Statute has no explicit references to sexual violence as war crimes, and acts of rape and other acts of sexual violence as a war crime have been prosecuted mostly as a form of outrages upon personal dignity. See, e.g., Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, (Dec. 10, 1998).

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_018 328 Bensouda an expansive list of sexual and gender-based crimes as distinct types of war crimes relating to both international and non-international armed conflict. Furthermore, the Statute expands the list of sexual and gender-based crimes as crimes against humanity to include not only rape, but also other forms of sexual violence such as sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilisation. It also includes, for the first time, the recognition of persecution on the basis of gender as a crime against humanity. The crime of enslavement, which includes trafficking of persons, particularly women and children, is also recognised as a crime against humanity.3 Sexual and gender-based crimes committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group may also constitute acts of genocide, under the Statute. The Statute and the Rules of Procedure and Evidence (the “Rules”) contain various provisions designed to ensure effective investigation and prosecution of sexual and gender-based crimes and to protect the interests of victims and witnesses of such crimes. This is enhanced by provisions relating to the structure of the Court’s organs and the availability of relevant expertise.4 The Elements of Crimes (“Elements”) also consolidate important advancements with respect to the definition of these crimes. Notwithstanding the progress in the integration of sexual and gender-based crimes into international criminal law, justice still eludes many victims. As recognised by Chief Prosecutor of the ICTR, Mr. Hassan B. Jallow, there are many challenges and obstacles to the effective investigation and prosecution of such crimes.5 Recognising these challenges, and mindful of the purposes of the Statute and the mandate of the Office of the Prosecutor (“Office”), as set

3 According to the Elements of Crimes, one of the elements of enslavement as a crime against humanity under article 7(1)(c) of the Statute is that: “[t]he perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchas- ing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.” According to footnote 11 attached to this provision, “[i]t is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.” The same footnotes appear in relation to the elements of sexual slavery as a crime against humanity and a war crime under articles 7(1)(g), 8(b)(xxii), and 8(2)(e)(vi). 4 See, e.g., Rome Statute of the International Criminal Court, U.N. Doc. A/CONF. 183/9, at 16, 28, 34, 47 (July 1, 2002) (article 21(3), 42(9), 54(1)(b) and 68(1)) [hereinafter Rome Statute]. 5 See Hassan B. Jallow, Challenges of International Criminal Justice: the ICTR Experience, ICTR, http://ictr-archive09.library.cornell.edu/ENGLISH/colloquium04/jallow.html (last visited The Sexual and Gender-Based Crimes Policy Paper 329 out in the Statute, the Office has on various occasions, expressed its commitment to pay particular attention to the investigation and prosecution of sexual and gender-based crimes and to enhance access to justice for victims of these crimes, through the ICC. In the Office’s new Strategic Plan (2012–2015), the issue has been elevated to a key strategic goal. The Office commits to integrating a gender perspective and analysis in all its work; being innovative in the investigation and prosecution of these crimes; adequately train staff; adopt a victim-responsive approach in its work and to give special attention to staff interaction with victims and witnesses, their families and communities. The Office has also appointed a Special Gender Advisor with the requisite expertise to further strengthen its institutional capacity and to support the Office’s strategic response to sexual and gender-based crimes. At the time of writing, the Office had just finalised a comprehensive policy paper on sexual and gender-based crimes (the “SGBC policy paper”). The development and implementation of this SGBC policy paper was a priority I set for the Office when I assumed my role as the Court’s Prosecutor. The policy is based on the relevant provisions of the Statute; the Rules; the Regulations of the Court; the Regulations of the Office of the Prosecutor; the Office Prosecutorial Strategies, and other related policy documents. It also draws on the experience and lessons learned during the first decade of the work of the Office, and relevant jurisprudence from the ICC and the ad hoc international tribunals.6 Bearing in mind the importance that the drafters of the Statute attached to the relevance of gender in the commission of crimes under the Statute, this policy will guide the Office in its work relating to sexual and gender-based crimes. The objectives of the SGBC policy are to: • Affirm the commitment of the Office, in the execution of its mandate, to pay particular attention to sexual and gender-based crimes in line with Statutory provisions;

Apr. 17, 2014) (paper presented by Chief Prosecutor, Hassan B. Jallow, at the Colloquium of Prosecutors of International Criminal Tribunals, Arusha 25–27 November 2004). 6 See ICTY Manual on Developed Practices, ICTY, (2009), http://www.icty.org/x/file/About/ Reports%20and%20Publications/ICTY_Manual_on_Developed_Practices.pdf; ICTR Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Post- Conflict Regions: Lessons Learned from the Office of the Prosecutor for the International Criminal Tribunal for Rwanda, ICTY, (Jan. 30, 2014), http://www.unictr.org/portals/0/English/ Legal/Prosecutor/ProsecutionofSexualViolence.pdf. 330 Bensouda • Guide the implementation and utilisation of the provisions of the Statute and the Rules so as to ensure the effective investigation and prosecution of sexual and gender-based crimes starting from preliminary examinations through appeal; • Provide clarity and direction on issues pertaining to sexual and gender- based crimes in all aspects of the Office’s operations; • Contribute to advancing a culture of “best practice” in relation to the investigation and prosecution of sexual and gender-based crimes; and • Contribute, through its implementation, to the on-going development of international jurisprudence regarding sexual and gender-based crimes.

The commission of sexual and gender-based crimes is not unique to the context of armed conflict or mass violence. This and other jurisdictional, admissibility and policy considerations often mean that many sexual and gender-based crimes committed will not be investigated and prosecuted by the Office. The Office will therefore be able to prosecute a limited number of those responsible for such crimes. As such, it is crucial that, in an effort to close the impunity gap, and consistent with the statutory principle of complementarity, States comply with their responsibility to effectively investigate and prosecute serious international crimes, including sexual and gender-based crimes. The work of the Court may guide national jurisdictions and other actors to address such crimes whenever they occur, including by conducting effective investigations and prosecutions. The Office will support genuine national efforts, where possible. Policy papers of the Office are made public in the interest of promoting transparency and clarity, as well as predictability in the application of the legal framework. It is hoped that such clarity may facilitate the harmonisation of efforts of other actors (States, including national judicial authorities, international institutions, conflict managers and mediators, non-governmental organisations and advocacy groups) with the legal framework. It would also assist in promoting cooperation, increasing accountability for sexual and gender-based crimes and enhancing the preventive impact of the Statute through the work of the Court in relation to these crimes. The Office adopted an inclusive approach in the development of this policy, consulting with staff at the ICC headquarters and with field staff via video conference and working closely with the Special Gender Adviser. The Office also sought and considered input from external experts, representatives of States, international organisations and civil society. This chapter will discuss the SGBC policy paper, as well as the regulatory framework within which it operates. The work will also explain how the The Sexual and Gender-Based Crimes Policy Paper 331

Office will seek to ensure the integration of a gender perspective throughout its work process: from preliminary examinations, to investigations, trials, through to appeal, and in any limited role the Office may have during the reparations phase, as well as in its external relations and public information activities. Finally, I will explain how the Office will work towards enhancing its institutional capacity to effectively deal with sexual and gender-based crimes.

2 The General Policy

As previously mentioned, the Office will strengthen its efforts in the investigation and prosecution of sexual and gender-based crimes, by integrating a gender perspective and analysis in all aspects of its work. Article 7(3) of the Statute defines “gender” as referring to “the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.” This definition acknowledges the social construction of gender and the accompanying roles, behaviours, activities and attributes assigned to women and men, and girls and boys. The Office will apply and interpret this in accordance with internationally recognised human rights pursuant to article 21(3) of the Statute. The Office considers gender-based crimes as those committed against persons, whether male or female, because of their sex and/or socially constructed gender roles. Gender-based crimes are not always manifested as a form of sexual violence. These crimes may include non-sexual attacks on women and girls, men and boys, because of their gender, such as persecution on the ground of gender.7 Sexual crimes that fall under the subject-matter jurisdiction of the Court are listed under articles 7(1)(g), 8(2)(b)(xxii) and 8(2)(e)(vi) of the Statute and described in the Elements of Crimes. The Elements, in relation to “rape,” “enforced prostitution” and “sexual violence,” require that the perpetrator committed an act of a sexual nature against a person, or caused another to engage in such an act, by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, or by taking advantage of a coercive environment or a person’s incapac- ity to give genuine consent.8 An act of a sexual nature is not limited to physical

7 Rome Statute, supra note 4, at 4 (article 7(1)(h) of the statute). 8 See Rome Statute, supra note 4, at 4, 7, 9 (articles 7(1)(g), 8(2)(b)(xxii) and 8(2)(e)(vi), of the statute). For example, in Kenyatta et al., the Prosecution argued that acts of forcible circum- cision and penile amputation against Luo men constituted “other forms of sexual violence” 332 Bensouda violence, and may even not involve any physical contact – forced nudity is an example of the latter.9 Sexual crimes, therefore, cover both physical and non- physical acts directed at a person’s sexual characteristics. Other crimes such as torture, mutilation, persecution, inhumane acts and outrages upon personal dignity may also have a sexual and/or gender element.10 Both sexual and gender-based crimes may be motivated by underlying inequalities as well as a multiplicity of other factors, including religious, political, ethnic, national and economic reasons. Within the scope of its mandate, and in a manner consistent with article 54(1)(a), the Office will apply a gender analysis to all of the crimes within its jurisdiction. This involves an examination of the underlying differences and inequalities between women and men, and girls and boys, and the power relationships and other dynamics which determine and shape gender roles in a society and give rise to assumptions and stereotypes. In the context of the work of the Office, it requires a consideration of whether and in what ways, crimes, including sexual and gender-based crimes, are related to gender norms and inequalities. The approach by the Office will also encompass an understanding of the use of certain types of crimes, including acts of sexual violence, to diminish gender, ethnic, racial and other identities. All staff from different Divisions are responsible for incorporating a gender perspective in the work of the Office, and to address sexual and gender-based crimes at all stages. The Office will strengthen the concrete steps it has taken to enhance the integration of a gender perspective and expertise in all aspects

pursuant to article 7(1)(g). Pre-Trial Chamber II found that the evidence before it did not establish the sexual nature of these acts; accordingly, it considered this conduct as forming part of the allegations of other inhumane acts (causing severe physical injuries). Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute. See Prosecutor v. Kenyatta et al., Case No. ICC-01/09-02/11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ¶¶ 264–66 (Jan. 23, 2012). 9 In the Katanga/Ngudjolo case, Pre-Trial Chamber I accepted that forcible nudity constitutes an outrage upon personal dignity, although it declined to confirm the charge owing to insufficient evidence. See Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07-717, Decision on the Confirmation of Charges, ¶ 570-72 (Sept. 30, 2008); see also M. Boot, “Article 7 Paragraph 3: Definition of Gender,” in Commentary on the Rome Statute of the International Court: Observer’s Notes, Article by Article, (2d ed. 2008); M. McAuliffe deGuzman, “Article 21, Paragraph 3,” in Commentary on the Rome Statute of the International Court: Observer’s Notes, Article by Article, (2d ed. 2008). 10 Rome Statute, supra note 4, at 4–5, 7–8 (articles 7(1)(f), 7(1)(h), 7(1)(k), 8(2)(a)(ii), 8(2)(b) (x), 8(2)(b)(xxi), 8(2)(c)(i) and 8(2)(c)(ii) of the statute). The Sexual and Gender-Based Crimes Policy Paper 333 of its operations: during preliminary examinations, in the development of case hypotheses and investigation and prosecution strategies, in the analysis of crime patterns, in the screening, selection, interview and testimony of witnesses, during sentencing and reparation stages, in its submissions on appeal and witness protection, including after the conclusion of the proceedings. The Office will also increase its efforts to ensure that staff have the skills, knowledge and sensitivity necessary to fulfil their functions and the mandate of the Office in relation to sexual and gender-based crimes. This aspect will be further developed in the institutional development part of this article. The Office will take a victim-responsive approach in its activities. Article 54(1)(b) of the Statute requires the Prosecutor to take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses. The Office will increasingly seek opportunities for effective and appropriate engagement and consultation with victim groups and their representatives in order to take into account the interests of victims at various stages of its work, understanding that not all victims have the same interests or concerns and that equally there is a need to carefully manage expectations.11

3 The Regulatory Framework

As already mentioned, the Statute is the first instrument in international criminal law that explicitly recognises rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and any other form of sexual violence as distinct types of war crimes.12 It also expands the list of sexual and gender- based crimes constituting crimes against humanity to include not only rape but also other forms of sexual violence as well as persecution on the basis of

11 See, for example, the policy paper on victims’ participation, in which the Office stated that it welcomes direct interaction with victims and victims’ associations starting at the earliest stages of its work in order to take their interests into account when it defines the focus of its investigative activity. See Policy Paper on Victims’ Participation, ICC 7 (Apr. 12, 2010), http://www.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-ST-V-M.1-ENG.pdf. 12 As mentioned in the introduction, the ICTY and ICTR Statutes include only rape as a crime against humanity. The ICTR Statute includes rape and enforced prostitution as a form of the war crime of outrages upon person dignity. While the ICTY Statute includes no explicit reference to sexual violence as a war crime, acts of rape and other acts of sexual violence have been mostly prosecuted as a form of the war crime of outrages upon personal dignity. 334 Bensouda gender. It is the first international instrument to expressly include various forms of sexual and gender-based crimes, in addition to rape, as underlying acts of crimes against humanity or war crimes committed in international and non-international armed conflict. In addition, the Statute authorises the Court to exercise jurisdiction over sexual and gender-based crimes, if they constitute acts of genocide or other underlying acts of crimes against humanity or war crimes. In the case of genocide, these crimes could be an integral part of the pattern of destruction inflicted upon targeted groups. The inclusion of article 21(3) in the Statute is particularly important as it mandates that the application and interpretation of the Statute be consistent with internationally recognised human rights and be without any adverse distinction founded, among others, on gender, or “other status.” As such, the Office will take into account the evolution of internationally recognised human rights. Pursuant to article 21(3), the Office will: • ensure that it applies and interprets the Statute in line with internationally recognised human rights including those relating to women’s human rights and gender equality;13 • consider not only acts of violence and discrimination based on sex, but also those related to socially constructed gender roles; • understand the intersection of factors such as gender, age, race, disability, religion or belief, political or other opinion, national, ethnic, or social origin, birth, sex, sexual orientation, and other status or identities which may give rise to multiple forms of discrimination and social inequalities;14

13 Reference can be made to relevant human rights instruments such as the 1979 Convention on the Elimination of All Forms of Discrimination against Women, the 1993 Vienna Declaration and Programme of Action, and the 1995 Beijing Declaration and Platform for Action when interpreting the provisions of the Statute. 14 It is important to view different types of discrimination as a totality, and not in isolation, as they can overlap with one another. See, for example, the Committee on the Elimination of Discrimination against Women (“CEDAW”), General recommendation No. 28, which notes that “[t]he discrimination of women based on sex and gender is inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, health, status, age, class, caste, and sexual orientation and gender identity.” Convention on the Elimination of All Forms of Discrimination Against Women, CEDAW/C/GC/28 ¶ 18 (Dec. 16, 2010) (explaining the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women); see also, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Establishing the Principles and Procedures to be Applied to Reparations, ¶ 191 (Aug. 7, 2012) (“Under Article 21(3) of The Sexual and Gender-Based Crimes Policy Paper 335 • avoid any gender discrimination in all aspects of its work including its investigative and prosecutorial activities; • address any adverse distinction on the basis of gender should such distinctions arise as a result of the work of other parties or other organs of the Court, and • positively advocate for the inclusion of sexual and gender-based crimes and a gender perspective in litigation before the Chambers.

Article 54(1)(b) of the Statute imposes on the Prosecutor the duty to take appropriate measures to effectively investigate and prosecute crimes within the Court’s jurisdiction, respecting ‘the interests and personal circumstances of victims and witnesses, including age, gender as defined in article 7, paragraph 3, and health,’ and taking into account ‘the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children.’15 In this regard, the Office will take steps to ensure the effective investigation and prosecution of these crimes, by also being sensitive to the interests and circumstances of victims and witnesses and taking a mainstreamed approach in dealing with sexual and gender-based crimes. Sexual and gender-based crimes can be prosecuted under several provisions of the Statute. Under article 6 of the Statute, which defines the crime of genocide, all the underlying acts, such as killings, causing serious bodily or mental harm and imposing measures intended to prevent births within the group, may have sexual and/or gender elements. If committed with the intent to destroy a national, ethnical, racial or religious group, in whole or in part, they may amount to acts of genocide. The Office position is that acts of rape and other forms of sexual violence may be an integral component of the pattern of destruction inflicted upon a particular group of people and in such circumstances, may be charged as genocide. Furthermore, articles 7(1)(g) and (h) of the Statute set out explicit sexual and gender-based crimes which may constitute crimes against humanity, including rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, other forms of sexual violence of comparable gravity, and persecution

the Statute, reparations shall be granted to victims without adverse distinction on the grounds of gender, age, race, colour, language, religion or belief, political or other opinion, sexual orientation, national, ethnic or social origin, wealth, birth or other status.”). 15 At the time of writing, the Office is in the midst of developing a comprehensive policy paper specifically addressing children’s issues. 336 Bensouda on the ground of gender.16 Under article 7 of the Statute, sexual and gender- based crimes may be charged as crimes against humanity when they are committed ‘as part of a widespread or systematic attack directed against civilian populations’ and ‘pursuant to or in furtherance of a State or organisational policy to commit such attack.’17 It is not required that each act, such as rape, be widespread or systematic, provided that the act forms part of a widespread or systematic attack against a civilian population.18 The crime against humanity of persecution is also an important recognition within the Statute that will help confront the issue of impunity for systematic persecutions on the basis of gender or “other grounds” that are universally recognised as impermissible under international law.19 The provision will be utilised to the fullest extent possible. Sexual and gender-based crimes are often also committed in the context of and in association with an international or non-international armed conflict. They may, as such, fall under the Court’s jurisdiction as war crimes under article 8 of the Statute. These include acts of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and other forms of sexual violence also constituting a grave breach of the Geneva Conventions or a serious violation of Common Article 3. All other types of war crimes, including

16 Article 7(2) of the Statute provides definitions for some of these acts. They are further elaborated in the Elements. In its Resolutions 1820 (2008) and 1888 (2009), the Security Council reaffirmed that sexual violence, when used or commissioned as a tactic of war in order to deliberately target civilians or as a part of a widespread or systematic attack against civilian populations, could significantly exacerbate situations of armed conflict, and might impede the restoration of international peace and security. 17 According to the Elements, the “policy to commit such attack” requires that the state or organisation “actively promote or encourage such an attack against a civilian population.” Pre-Trial Chamber II has confirmed that non-State actors may qualify as an “organisation” for the purpose of article 7(2)(a). See, e.g., Situation in the Republic of Kenya, Case No. ICC-01/09, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ¶ 92 (Mar. 31, 2010); Prosecutor v. William Samoei Ruto et al., Case No. ICC-01/09-01/11, ¶ 184–85 (Jan. 23, 2012). 18 Prosecutor v. Tadić, Case No. IT-94-1A, Judgement, ¶ 248 n.311 (Int’l Crim. Trib. for the Former Yugoslavia July 15, 1999) (citing Prosecutor v. Mile Mrksić et al., Case No. IT-95- 13-R61, Review of the Indictment Pursuant to Rule 61 of the Rule of Procedure and Evidence, ¶ 30 (Int’l Crim. Trib. for the Former Yugoslavia Apr. 3, 1996) (“[A]s long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as a crime against humanity. As such, an individual committing a crime against a single victim or a limited number of victims might be recognised as guilty of a crime against humanity if his acts were part of the specific context identified above.”). 19 See Rome Statute, supra note 4, at 4 (article 7(1)(h), of the statute). The Sexual and Gender-Based Crimes Policy Paper 337

intentionally directing attacks against the civilian population, torture, mutilation, outrages upon personal dignity or the recruitment of child soldiers, may also contain sexual and/or gender elements. Bearing the above in mind, the Office will be vigilant in charging sexual and gender-based crimes as war crimes, to the full extent the Office deems possible under article 8.20

4 Sexual and Gender-Based Crimes and the Work Processes of the OTP

4.1 Preliminary Examinations The Office conducts a preliminary examination of all situations that are not manifestly outside of the jurisdiction of the Court on the basis of information available, in order to determine whether there is a reasonable basis to proceed to an investigation. The Prosecutor will reach such a determination after having considered the factors set out in articles 53(1)(a)–(c) of the Statute: jurisdiction (temporal, subject-matter, and either territorial or personal jurisdiction); admissibility (complementarity and gravity), and the interests of justice.21 During the process of the preliminary examination of a situation, the Office analyses information on crimes potentially falling within its jurisdiction.22 In so doing, the Office will also examine the general context within which the alleged sexual and gender-based crimes have occurred and assess the existence of local institutions and expertise, international organisations,

20 In the Katanga/Ngudjolo case, Pre-Trial Chamber I accepted that forcible nudity constitutes an outrage upon personal dignity and found sufficient evidence that militia members under the command of the accused committed these crimes. However, it declined to confirm the charge due to insufficient evidence that the commission of such crimes was intended by the accused as part of the common plan to “wipe out” Bogoro village, or that as a result or part of the implementation of the common plan, these facts would occur in the ordinary course of events. See Prosecutor v. Germain Katanga & Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07, Decision on the Confirmation of Charges, ¶¶ 570–72 (Sept. 30, 2008). 21 The Office’s policy and practice in the conduct of preliminary examinations are described in detail in its Policy Paper on Preliminary Examinations. See Policy Paper on Preliminary Examinations, supra note 11. Rule 48 of the Rules requires the Prosecutor to consider the factors set out in article 53(1)(a)–(c) of the Statute in determining whether there is a reasonable basis to proceed with an investigation under article 15(3). 22 In accordance with article 15 of the Statute, the Office may receive information on such crimes and may seek additional information from States, organs of the United Nations, intergovernmental and non-governmental organisations and other reliable sources. 338 Bensouda non-governmental organisations and other entities available as potential sources of information and/or of support for victims. Such an assessment will support any investigation that may be opened at a later stage. Where crimes within the jurisdiction of the Court, including sexual and gender-based crimes, have been identified, the Office will examine the existence of genuine and relevant national proceedings, and if there are such proceedings, whether those relate to potential cases being examined by the Office. In this context, the Office will consider the factors relevant for the assessment of the admissibility of potential cases. This determination is case specific. It requires an examination of whether the national proceedings encompass the investigation and/or prosecution of the same persons for the same conduct as that which forms the basis of the preliminary examination.23 There is no requirement that the crimes charged in the national proceedings have the same legal characterisation as the ones before the ICC. Accordingly, the absence of genuine national proceedings will be assessed by the Office in light of such indicators as are listed in the Office’s Preliminary Examination Policy Paper.24 Barriers to genuine proceedings, which the Office

23 Prosecutor v. Ruto et al., Case. No. ICC-01/09-01/11, Judgement on the Appeal of the Republic of Kenya Against the Decision of Pre-Trial Chamber II of 30 May 2011 Entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute” ¶¶ 1, 47 (Aug. 30, 2011); Prosecutor v. Kenyatta et al., Case No. ICC-01/09-02/11, Judgement on the Appeal of the Republic of Kenya Against the Decision of Pre-Trial Chamber II of 30 May 2011 Entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute,” ¶¶ 1, 47 (Aug. 30, 2011); see also Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Concerning Pre-Trial Chamber I’s Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr Thomas Lubanga Dyilo, ¶ 31 (Feb. 24, 2006) (“it is a conditio sine qua non for a case arising from the investigation of a situation to be inadmissible that national proceedings encompass both the person and the conduct which is the subject of the case before the Court.”); Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11, Decision on the Admissibility of the Case Against Abdullah Al-Senussi, ¶ 66 (Oct. 11, 2013) (“For the Chamber to be satisfied that the domestic investigation covers the same ‘case’ as that before the Court, it must be demonstrated that: a) the person subject to the domestic proceedings is the same person against whom the proceedings before the Court are being conducted; and b) the conduct that is subject to the national investigation is substantially the same conduct that is alleged in the proceedings before the Court. . . . [T]he determination of what is ‘substantially the same conduct as alleged in the proceedings before the Court’ will vary according to the concrete facts and circumstance of the case and, therefore, requires a case-by-case analysis.”). 24 Policy Paper on Preliminary Examinations, supra note 11, at 12–14 (paragraphs 48–56). The Sexual and Gender-Based Crimes Policy Paper 339 will consider in its admissibility assessment, might include: discriminatory attitudes and gender stereotypes in substantive law and/or procedural rules that limit access to justice for victims of such crimes, such as inadequate domestic law criminalising conduct proscribed under the Statute, the existence of amnesties or immunity laws and statutes of limitation; and the absence of protective measures for victims of sexual violence. Other indicators of an absence of genuine proceedings may be the lack of political will, including official attitudes of trivialisation and minimisation or denial of these crimes; manifestly insufficient steps in the investigation and prosecution of sexual and gender-based crimes; and the deliberate focus of proceedings on low-level perpetrators despite evidence against those who may bear more responsibility. The complementarity assessment is made on the basis of the underlying facts as they exist at the time of the determination and is subject to on-going revision based on a change in circumstances. Although crimes falling within the Court’s jurisdiction are in and of themselves serious, article 17(1)(d) of the Statute requires the Court, as part of the admissibility determination, to assess whether a case is of sufficient gravity to justify further action by the Court. Factors relevant in assessing the gravity of the crimes include their scale, nature, manner of commission and impact. The nature of the crimes refers to the specific elements of each offence such as killings, rapes and other crimes involving a sexual and/or gender element.25 The Office recognises that sexual and gender-based crimes are among the gravest under the Statute. In assessing the gravity of alleged sexual and gender-based crimes, the Office will take into account the multi-faceted character and the resulting suffering, harm and impact of such acts. The Office will seek to encourage genuine national investigations and prosecutions by the State(s) concerned in relation to sexual and gender-based crimes. It will also encourage relevant national authorities and other entities to address barriers to genuine proceedings and to provide support for the victims of such crimes.

25 Regulation 29(2), Regulations of the Office of the Prosecutor. See, in concurrence with the Prosecution’s submissions, Prosecutor v. Bahar Idriss Abu Garda, Case No. ICC-02/05-02/09, Decision on the Confirmation of Charges, ¶ 31 (Feb. 8, 2010); Situation in the Republic of Kenya, Case No. ICC-01/09, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ¶ 188, (Mar. 31, 2010); Situation in the Republic of Côte d’Ivoire, Case No. ICC-02/11-14, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire, ¶ 204 (Oct. 3, 2011). 340 Bensouda

4.2 Investigations In accordance with the duties and powers of the Prosecutor set out in article 54 of the Statute, the Prosecutor will investigate both incriminating and exonerating circumstances relating to sexual and gender-based crimes in a fair and impartial manner, to establish the truth.26 The Office will, with due diligence, undertake investigations into sexual and gender-based crimes concurrently with its investigations into other crimes, ensuring efficient utilisation of resources and providing an opportunity for a thorough investigation of sexual and gender-based crimes. However, in addition to general challenges such as conducting investigations in situations of on-going conflict and a lack of cooperation, the investigation of sexual and gender-based crimes presents its own specific challenges. These include: under or non-reporting of sexual violence due to societal, cultural, or religious factors; stigma for victims of sexual and gender-based crimes; limited domestic investigations and the associated lack of readily available evidence; lack of forensic or other documentary evidence, due, inter alia, to the passage of time, and inadequate or limited support services at the national level. Bearing in mind the specific challenges faced in obtaining evidence in respect of sexual and gender-based crimes, the Office will apply lessons learned and best practices standards to enhance the effectiveness of investigations into such crimes. In the Strategic Plan for 2012–2015, the Office adopted a new approach to pursue more in-depth, open-ended investigations while maintaining focus so that more evidence from more diversified sources may be collected.27 Where necessary, the Office will follow a strategy of gradually building cases up from mid- and high-level perpetrators, and even up from low-level notorious perpetrators, to those most responsible. This approach is intended, in part, to assist in addressing the challenge of establishing the individual criminal responsibility of persons at the highest levels for the commission of sexual and gender- based crimes. In order to build networks, which are crucial for the effective investigation of sexual and gender-based crimes, the Office will consider the information obtained during the preliminary examination stage, relating to local communities and the existence of civil society organisations. The establishment of contacts and networks within the community will be prioritised to the extent

26 Rome Statute, supra note 4, at 32 (article 54(1) of the statute). 27 Strategic Plan 2012–2015, ICC 6, (Oct. 11, 2013), http://www.icc-cpi.int/en_menus/icc/ structure%20of%20the%20court/office%20of%20the%20prosecutor/policies%20 and%20strategies/Documents/OTP-Strategic-Plan-2012-2015.pdf. The Sexual and Gender-Based Crimes Policy Paper 341 possible to support the operational activities of the Office, in particular, to augment its access to information and evidence and to create a referral base in support of victims and witnesses. The Office will aim to ensure that its activities do not cause further harm to victims and witnesses. In the absence of local support, it will take into consideration the need for the Court to provide the necessary assistance. The Office will also identify individuals who may be selected as intermediaries in order to support the conduct of effective investigations.28 All such intermediaries who are likely to engage with victims and witnesses of sexual and gender-based crimes will be specifically briefed to ensure that they have an understanding of the possible effects of trauma, in relation to both these particular crimes and to the investigative process. The Office will continuously monitor and evaluate the performance of such intermediaries. Where the performance of intermediaries is unsatisfactory or their integrity is called into question, the team will immediately re-consider their continued engagement and take the necessary action, as appropriate. Staff will receive briefings on relevant cultural issues, traditional and religious practices and other considerations relevant to the investigation. In the course of preparations for missions, relevant staff are required to familiarise themselves with local traditions, customs and cultural issues, including the status of females and males within this context and other factors that may impact on the investigation mission and the interview process. As required by article 68(1) of the Statute, the Office takes various measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses, particularly during its investigation and prosecution activities with regard to sexual and gender-based crimes. Additionally, the potential victim-witnesses with respect to sexual and gender-based crimes shall be subject to preliminary psycho-social and security assessments and screenings. A psycho-social assessment is mandatory for all potential witnesses of sexual and gender-based crimes. It will be conducted by a psycho-social expert, who will consider the welfare of the witnesses and their ability both to undergo an interview process and testify without undue personal or psychological harm. The expert may be present during the interview itself, in order to monitor the interview and advise the interviewer.

28 Court-wide Guidelines Governing the Relations between the Court and Intermediaries, together with a Code of Conduct for Intermediaries, were adopted by the heads of Organs on 17 March 2014. 342 Bensouda

The expert or an accompanying person may also provide support to the witness as requested.29 The screening will focus on assessing the individual’s personal circumstances, willingness to assist the investigation, evidentiary value, and working towards establishing a relationship of trust and respect. The security assessment will be conducted with a focus on specific risks and the available protection measures. The Office will proceed with an interview, subject to positive assessments regarding their psycho-social condition, investigative needs and security. The Office is mindful that victims of sexual and gender-based crimes may face the additional risks of discrimination, social stigma, exclusion from their family, community, physical harm or other reprisals. In order to minimise their exposure and possible re-traumatisation, the Office will enhance its efforts to collect other types of evidence, where available, including insider testimony, the statistical or pattern-related evidence from relevant experts, medical and pharmaceutical records, empirical research and reports and other credible data produced by States, organs of the United Nations, intergovernmental and non-governmental organisations and other reliable sources. In the selection of witnesses, all Office teams will take into account considerations relating to any security, social and psychological risks as well as any possible healing effect which may be associated with providing evidence of sexual and gender-based crimes. The Office recognises that witnesses of sexual and gender-based crimes may wish to testify in judicial proceedings and may regard such testimony as part of their own recovery process. In its selection of witnesses, the Office will, on the basis of, inter alia, any psycho-social and security assessments, give careful consideration to whether taking evidence from a specific witness will be of benefit or harm to the individual. Experience has highlighted the importance of managing the expectations of victims and witnesses. The Office takes particular care in this regard and has an established practice with regard to keeping witnesses informed of, inter alia, the mandate of the Office, the procedures for protection, participation in the proceedings,

29 Regulation 36(3), Regulations of the Office of the Prosecutor provides: “The physical and psychological well-being of persons who are questioned by the Office and are considered vulnerable (in particular children, persons with disabilities and victims of gender and sexual crimes) shall be assessed by a psychology, psycho-social or other expert during a face-to-face interview prior to questioning. This assessment shall determine whether the person’s condition at that particular time allows him or her to be questioned without risk of re-traumatisation.” The Sexual and Gender-Based Crimes Policy Paper 343 the possibility of being called to testify, the scope and impact of possible disclosure, developments in the case and reparations.

4.3 Prosecutions, Sentencing, and Reparations Building on the preliminary examination and the substantive and detailed investigations and collection of evidence, the Office will ensure that sexual and gender-based crimes are included in the charges, where there is sufficient evidence to support such charges. In principle, the Office will bring all charges for sexual and gender-based crimes as crimes in themselves, in addition to charging these acts as forms of other violence within the Court’s subject-matter jurisdiction, where the material elements are met, e.g. rape as torture, persecution and genocide. The Office will seek to bring cumulative charges in order to fairly reflect the severity and multi-faceted character of these crimes and to enunci- ate their range supported by the evidence in each case. Also, where supported by the evidence, the Office will charge acts of sexual and gender-based crimes as different categories of crimes within the Court’s jurisdiction (war crimes, crimes against humanity, genocide), in order to properly describe, inter alia, the nature, manner of commission, intent, impact and context of the crimes.30 The Office will also seek to highlight the gender-related aspects of sexual and other crimes that fall within the jurisdiction of the Court, e.g. domestic labour in the context of sexual slavery or enslavement. The situations and cases before the Court have tended to show that rape and other sexual and gender-based crimes against both females and males are often widespread and/or used systematically as tools of war or repression. These crimes may be committed, inter alia: as a result of explicit or implicit orders or instructions to commit such crimes; as a consequence which the person is aware will occur in the ordinary course of events, for example, during military operations directed against civilian populations, or because of an omission (e.g. a failure to order subordinates to protect civilians or failure to punish similar crimes committed in prior operations).31

30 For example, in the Katanga/Ngudjolo case, the Office charged the Accused with sexual slavery and rape both as crimes against humanity and war crimes under articles 7(1)(g) and 8(2)(b)(xxii). The same approach has been taken in various other cases, including Harun/Kushayb, Bemba, Mbarushimana, Hussein, Mudacumura and Ntaganda, where the Office considered that there was sufficient evidence establishing contextual elements of both types of crimes. 31 In the Bemba case, the Office included in the charges rapes committed against both females and males and called not only female victims but two men in positions of authority who were victims of rape to testify at trial. See Prosecutor v. Bemba Gombo, Case No. ICC-01/05-01/08, Public Redacted Version of the Amended Document Containing the 344 Bensouda

Under article 25 of the Statute, individuals, including military commanders or non-military superiors, may be responsible for sexual and gender-based crimes that they commit as individuals or, jointly with or through another person, or if they order, solicit, induce, aid, abet, otherwise assist in, or in any way contribute to, the commission or attempted commission of those crimes. In the case of military commanders or non-military superiors, they can also be held responsible under article 28 on the basis of command or superior responsibility. In order to ensure accountability in the diversity of scenarios, the Statute provides for various modes of liability under articles 25 and 28, and standards required to satisfy the mental elements are set out in article 30.32 Under article 28, military commanders or non-military superiors, can be held accountable for sexual and gender-based crimes where they knew, or should have known about, or consciously ignored information regarding the commission of such crimes, and failed to take any needed and reasonable measures within their power to prevent or repress their commission, or even to submit the matter for investigation and prosecution to the competent authorities. Pursuant to article 30 of the Statute, the Office must establish that the person under investigation or the accused committed the crime with intent and knowledge, unless the Elements specify a mental element for any particular conduct, consequence or circumstances listed therein. In order to encourage military commanders and/or military superiors to deal effectively with the commission of these crimes by their forces or subordinates, the Office will explore the possibilities and potential of bringing charges on the basis of articles 28 and 25 of the Statute. The experience of the ICC and other international tribunals demonstrates that there is often no evidence of explicit orders to commit sexual and

Charges Filed on 30 March 2009 (Mar. 30, 2009) (alleging, inter alia, that: “Women were raped on the pretext that they were rebel sympathisers. Men were also raped as a deliberate tactic to humiliate civilian men, and demonstrate their powerlessness to protect their families.”). In the Kenyatta case, the Office included in the charges acts of forcible circum- cision and penile amputation against men perceived to be supporters of the opposition party. See Prosecutor v. Kenyatta, Case No. ICC-01/09-02/11, Public Redacted Version of the Corrigendum of the Second Updated Document Containing the Charges, at 34 (May 10, 2013). 32 See, e.g., Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Public Redacted Version of the Amended Document Containing the Charges Filed on 30 March 2009, (Mar. 30, 2009). This is the first case before the ICC in which a military commander is being prosecuted on the basis of command responsibility for alleged crimes including rape, committed by forces under his effective command and control. The Sexual and Gender-Based Crimes Policy Paper 345 gender-based crimes.33 In such circumstances, evidence such as patterns of prior or subsequent conduct or specific notice may be adduced to prove an awareness, by the accused, that such crimes would occur in the ordinary course of events, which would satisfy the mental element under article 30(2)(b) of the Statute. The Office will explore the full potential of this provision. The Office will also seek to present other types of evidence, such as witness testimony and contemporaneous public reports on the crimes, in order to establish the intent and knowledge of the accused. The full range of modes of liability and mental elements under articles 25, 28 and 30 of the Statute for charging in cases of sexual and gender-based crimes will also be considered, and the Office will make a decision based on the existing evidence, charging different modes of liability and mental element in the alternative, where appropriate. The Office will consistently seek approval from the Chambers for witness preparation, for the purpose of promoting efficient and accurate testimony.34 Bearing in mind the additional stigma as well as the social and other consequences of sexual and gender-based crimes, the Office considers witness preparation, particularly in cases of sexual and gender-based crimes, to be highly desirable in order to support the psychological well-being of witnesses, and

33 For example, the ICTY Trial Chamber in Krstić held that while it was not convinced beyond reasonable doubt that the murders, rapes, beatings, and abuses committed against the refugees at Potočari were part of an objective agreed upon amongst the members of the joint criminal enterprise, there was no doubt that these crimes were natural and foreseeable consequences of the ethnic cleansing campaign. See Prosecutor v. Krstić, Case No. IT-98-33-T, Judgement, ¶ 616 (Int’l Crim. Trib. for the Former Yugoslavia Aug. 2, 2001). In Prlić et al., Trial Chamber III found four out of six Accused guilty of some crimes, including rape, sexual violence, and looting on the grounds that the Accused could have reasonably foreseen that such crimes would be committed as a consequence of the implementation of the joint criminal enterprise, and that they nevertheless accepted and assumed that risk, including by taking no measure to prevent the commission of further crimes. Prosecutor v. Prlić et al., Case No. IT-04-74-T, Judgement ¶¶ 72, 284, 437, 834, 1014 (Int’l Crim. Trib. for the Former Yugoslavia May 29, 2013). 34 Departing from the practice in earlier cases, Trial Chamber V in the two Kenya cases decided to permit witness preparation, recognising that proper witness preparation not only helps ensure that the witness gives relevant, accurate and structured testimony but also enhances the protection and well-being of witnesses, including by helping to reduce their stress and anxiety about testifying. See Prosecutor v. Ruto et al., Case No. ICC-01/09- 01/11, Decision on Witness Preparation, ¶¶ 4, 37, 57 (Jan. 2, 2013); Prosecutor v. Kenyatta et al., Case No. ICC-01/09/02/11 Decision on Witness Preparation, ¶¶ 4, 41, 52 (Jan. 2, 2013). Witness preparation has been widely practised by the ad hoc international criminal tribunals to facilitate the presentation of testimonial evidence. 346 Bensouda also to minimise the intimidation of the court-room environment and to facilitate the complete provision of evidence pertaining to sexual and gender-based crimes. The Office will conduct the witness preparation process in accordance with any guidance issued from the Chamber, as well as the internal guidelines of the Office, ensuring that the fairness and integrity of the proceedings are not compromised in any manner. Article 68 of the Statute is the central article with regard to the protection of victims and witnesses throughout the proceedings and binds all Organs of the Court. The Office will fulfil its statutory duty in ensuring that all appropriate measures are taken during the investigation and prosecution of sexual and gender-based crimes. Consequently, the Office has established a Protection Strategies Unit (“PSU”) and an Operations Support Unit (“OSU”), which deal with the protection and the support of witnesses, their families and other persons that are at risk because of their interactions with the Office. However, the primary responsibilities for the provision of protective measures, counselling and other assistance for victims and witnesses that appear before the Court, is with the Victims and Witness Unit of the Registry (“ VWU”).35 The Office, and in particular the PSU, cooperates with the VWU on matters concerning protection and support, and will share any relevant information and provide assistance in the implementation of protective measures and support where necessary and appropriate. The Office will also work with States and other relevant actors in order to give full effect to this provision. Furthermore, the Office will exercise due diligence in ensuring that it meets the requirements set out in the Statute in relation to the disclosure of evidence in a timely and proficient manner. If the disclosure of identity exposes victims and witnesses, including those of sexual and gender-based crimes, to any risk of physical or psychological harm, which may not be addressed by any other protective measures, the Office may request authorisation to redact the identities of victims and witnesses pursuant to Rule 81(4) of the Rules, or use summaries of witness statements given prior to a trial in accordance with articles 61(5) and 68(5) of the Statute.36 Prior to the interview, the Office will fully inform witnesses of its disclosure obligations in relation to witness statements, taking into account the vulnerability of the witness and any further concerns

35 In accordance with article 43(6) of the Statute, the Registrar has set up a Victims and Witnesses Unit within the Registry, with a mandate to provide, in consultation with the Office, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. 36 Rome Statute, supra note 4, at 41, 47 (articles 61(5) and 68(5) of the statute). The Sexual and Gender-Based Crimes Policy Paper 347 witnesses of sexual and gender-based crimes may have in regards to security, personal and/or family or social repercussions. In accordance with article 68(2) of the Statute, and as an exception to the principle of public hearings, the Chambers may conduct any part of the proceedings in camera, or allow the presentation of evidence by electronic or other special measures, in order to protect the victims and witnesses. In the case of a victim of sexual violence, or a child who is a victim or a witness, such special measures are mandatory unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness. Where necessary to protect a victim or a witness of sexual and gender-based crimes, the practice of the Office is to request a Chamber to order measures pursuant to Rule 87 of the Rules, including: redacting the name of a person and any identifying information from the public records of the Chamber; prohibiting the parties and the participants to the proceedings from disclosing the name and any identifying information of a person to a third party; presenting evidence by electronic or other special means, including by image or voice alteration, video-conferencing and close-circuit television, or the exclusive use of sound media; using pseudonyms; or conducting proceedings, or parts thereof, in closed session. The Office will also, in case of witnesses who face an increased risk of psychological harm and/or psychological or physical difficulties that could affect their well-being and ability to testify, request the Chamber to take special measures in order to minimise the risk of re-traumatisation and facilitating their testimony.37 The evidence necessary for charging sexual and gender-based crimes and the burden on the prosecution to prove its case, as a matter of law, should be no more substantial or onerous than for any other crimes. The Rules contain provisions that aim at protecting witnesses and victims of sexual and gender- based crimes, in particular, with regard to such issues as corroboration, consent, and past behaviour. For example, Rule 63(4) of the Rules provides that corroboration is not required in order to prove any crime within the Court’s

37 See International Criminal Court, Rules of Procedure and Evidence, Rule 88(1), U.N. Doc. ICC-ASP/1/3 (Sept. 9, 2000) [hereinafter ICC Rules]. Such special measures were taken in the Bemba case, where the Office sought authorisation for the victims of sexual violence to be accompanied by any person of their choice during their testimony, in order to minimise any possible trauma or fear they might have with regards to participating in the proceeding. Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Prosecution’s Request for Protective and Special Measures for Prosecution Witnesses at Trial, ¶¶ 19–20 (July 6, 2010). 348 Bensouda jurisdiction, in particular, crimes of sexual violence. Rule 72 requires notification to the Court in the event of an intention to adduce evidence of consent by the victim. The Chamber is required to decide on the relevance and admissibility of the evidence, after hearing the views of the parties, the witness, and the victim or their legal representative in camera. The Office will in accordance with Rules 70–71, as appropriate, object to admission of such evidence. The Office will take a proactive and rigorous approach to the application of this rule. The Office will consult with experts, and where appropriate, propose their testimony on different aspects such as socio-political, psychological and medical aspects, of sexual and gender-based crimes. Such experts may also be useful in identifying patterns of sexual and gender-based crimes, the nature of injuries and their consistency with victim testimony, and the personal and social consequences of the crime.38 Post-testimony, the Office will maintain contact with the witnesses in order to keep them informed of the developments in the case, including the sentence, and any appeal. Finally, the sentences proposed by the Office will give due consideration to the sexual and gender dimensions of the crimes charged, including their impact on the victims’ families and their communities, as an aggravating factor and reflective of the gravity of the crimes committed. When determining the appropriate sentence, the Court is required to take into account factors such as the gravity of the crime and the individual circumstance of the convicted person. Several factors, including the extent of the damage caused – in particular, the harm caused to the victims and their families, the nature of the unlawful behaviour, and the means employed to execute the crime – must also be considered by the Court.39 Even in cases where the evidence precluded the inclusion of sexual and gender-based crimes in the charges, the Office considers that any sexual or gender dimension involved in the crimes charged should be treated as an aggravating factor or as part of the gravity factor for the purpose of sentencing.

38 The Office will take into account precedents of expert testimony of this kind in the ICC, other international tribunals and national jurisdictions. In the Lubanga case, UN Secretary General’s former Representative for Children in Armed Conflict, Ms. Rhadika Coomeraswamy, as well as a clinical psychologist, Dr. Elisabeth Schauer, testified about various aspects of sexual violence and gender-based crimes. In the Bemba case, the Office called Prof. André Tabo and Dr. Adeyinka Akinsulure-Smith as expert witnesses on the relevant pattern of sexual violence during the 2002–2003 conflict in the Central African Republic and its impact on the victims. 39 See Rome Statute, supra note 4, at 54 (article 78(1) of the Statute); ICC Rules, supra note 37, Rule 145(1)(c). The Sexual and Gender-Based Crimes Policy Paper 349

Article 75 of the Statute does not explicitly confer any role on the Prosecutor during the reparations stage. However, the Chamber may invite observations from the Office at this stage.40 The decision on reparations is determined by each Trial Chamber, with due consideration of the specific facts of the case, the context and circumstances within which the crimes occurred, the interest of victims and the harm and suffering experienced. On the issue of reparations, the Office supports a gender-inclusive approach, taking into account the gender-specific impact, and the harm caused to, and the suffering of, the victims affected by the crimes for which an individual has been convicted. The Office will also support consultation with the victims, and the conduct of a gender analysis by an appropriate body in order to determine the most effective and appropriate forms of reparation within a particular community.

5 Cooperation

Cooperation is one of the two fundamental pillars of the Rome Statute system, together with complementarity. In order to be able to carry out their respective mandates, effective cooperation is crucial both for the Court and for the Office. As mentioned earlier, the Office actively engages with the States and other relevant stakeholders in order to improve its own effectiveness in the investigation and prosecution of sexual and gender-based crimes. The Office also includes a gender perspective in its public information activities which seek to maximise awareness and the impact of its work. As part of its external relations strategy, the Office will enhance its efforts to identify, support and engage with initiatives undertaken to respond to sexual and gender-based crimes, including the facilitation of contacts between the different entities in this field. The Office encourages various initiatives and actions, particularly by States Parties, to address sexual and gender-based crimes.41 Such initiatives and actions are important in order to establish and

40 See Rome Statute, supra note 4, at 52 (article 75(3) of the Statute). For example, in the Lubanga case, the Chamber invited the Office to file submissions on the principles and procedure to be applied to reparations. Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Scheduling Order Concerning Timetable for Sentencing and Reparations, ¶ 8 (Mar. 14, 2012). 41 These include: efforts towards universal ratification and domestic implementation of the Statute, and cooperation with the Court; the adoption of domestic legislation which incorporates the conduct proscribed under the Statute, and procedures which would protect the interests of victims and facilitate the effective investigation and prosecution of such cases; support for domestic investigations and prosecutions for these crimes; 350 Bensouda reinforce the normative framework of the Statute for the accountability of sexual and gender-based crimes. For example, the establishment of the United Nations Special Representative of the Secretary-General for Sexual Violence in Conflict (“SRSG-SVC”) was also a significant development in the fight against impunity for conflict related sexual violence, as it strengthens the UN efforts on the issue. The Office peri- odically consults with, in particular, the Office of the SRSG-SVC, but also with the Special Representative of the Secretary-General for Children in Armed Conflict, the United Nations Entity for Gender Equality and the Empowerment of Women (“UN Women”), and the Office of the High Commissioner for Human Rights. The Office also recognises the crucial role that the civil society plays in preventing and addressing sexual and gender-based crimes. International and local non-governmental organisations are often first responders to incidents of sexual and gender-based crimes, undertaking documentation of such crimes and providing significant medical, psychosocial, material and legal support to victims. Accordingly, the Office will seek to strengthen the cooperation with these organisations, and continue to actively work towards building a network. The Office may seek advice from the Special Gender Advisor on how to undertake an effective network building, including with the grassroots organisations, in order to enlist their help and support in efforts to reach out more to the victims. The role of civil society is crucial in the transformation of public attitudes towards gender equality and in addressing sexual and gender-based crimes. In order to integrate a gender perspective in all aspects of its work, the public information activities of the Office will include creating and seizing the opportunity to highlight the impact of sexual and gender-based crimes and try to increase awareness and contribute to the prevention of future crimes. The Office will try to utilise various platforms such as public events, media/ social media campaigns, media programmes regarding high-level missions, or documentary projects. Outreach initiatives are also very important to achieve these objectives. The Registry is responsible for and leads on the planning and implementation of outreach‐related activities, in coordination with other Organs of the Court. The Office will support the Registry and participate in outreach activities, as appropriate.

enhancement of cooperation for the execution of ICC arrest warrants, and strengthening political support to end impunity and to prevent the recurrence of such crimes. The Sexual and Gender-Based Crimes Policy Paper 351

6 Institutional Development

The Office will enhance its institutional capacity to investigate and prosecute sexual and gender-based crimes more effectively. The Gender and Children Unit (“GCU”) was established by the Office to ensure that proper focus is placed on the investigation and prosecution of these crimes. This Unit comprises staff with legal and psycho-social expertise and supports all Divisions and teams in dealing with victims and witnesses, particularly those of sexual and gender-based crimes. They also provide advice to the Prosecutor and staff in all areas related to sexual and gender-based crimes and crimes against children, at all stages of the operations. Article 44(2) of the Statute requires that in the employment of staff within the Office, the Prosecutor shall ensure the highest standards of efficiency, competency and integrity and have regard to the representation of the principal legal systems of the world, equitable geographical representation and a fair representation of women and men. Recognising the need for in-house expertise on sexual and gender-based crimes, both in conflict and non-conflict situations, the Office will continue to recruit persons with the required expertise and experience in this field. Staff training on an on-going basis is essential in ensuring effective investigation and prosecution of sexual and gender-based crimes. As foreseen in the Court-wide revised strategy towards victims, such training will be adjusted in accordance with new strategies and experiences.42 The Office will endeavour to ensure that all team members as well as all other relevant staff members, including interpreters, have the necessary competencies and support in order to perform their functions effectively in relation to sexual and gender-based crimes. In addition, the Office will provide on-going technical and advanced training on methodologies in collection and analysis of evidence of such crimes, the relevant legal framework, cultural issues and other traditional and religious practices related to the situation and specific communities where the investigation is being conducted. Training will also be provided on how to properly conduct in-court examinations of vulnerable witnesses as well as insiders or overview witnesses to elicit relevant information regarding these

42 Report of the Court on the Revised Strategy in Relation to Victims: Past, Present and Future, Case No. ICC-ASP/11/40, ¶ 58, (Nov. 5, 2012); see also id. at ¶ 8 (“In general, the Court has recognised that it must do more to make its personnel increasingly gender sensitive. The different organs and units dealing with particularly vulnerable groups, e.g. women victims, children and survivors of Sexual and Gender Based Violence (SGBV), are developing policies on gender and guidelines for relevant personnel.”). 352 Bensouda crimes. Lastly, the Office will constantly monitor and review its practices in regards to investigation and prosecution of sexual and gender-based crimes. The Office will utilise its standardised and institutionalised lessons learned process in order to identify, document, and implement best practices with regards to sexual and gender-based crimes. This will promote learning and preservation of institutional knowledge gained from experience. The policy, the Operations Manual, and other internal rules and procedures will be regularly reviewed in order to incorporate best practices and other relevant developments, including jurisprudence.

7 Conclusion

The ICC is complementary to national efforts. Accordingly, consistent with its positive complementarity policy, the Office seeks to combine its own efforts to prosecute those most responsible, with national proceedings for other perpetrators. It may, for example, engage with and support national authorities in their proceedings, including in relation to sexual and gender-based crimes, provided that it does not compromise any future admissibility proceedings. This could include sharing of evidence obtained in the course of an investigation to support national proceedings, subject to the existence of a credible and fair national judicial proceeding; local system of protection for witnesses and other security-related caveats.43 Consistent with its positive complementarity approach, the Office encourages and supports States to carry out their primary responsibility of investigating and prosecuting crimes, including sexual and gender-based crimes.44 In this sense, the complementarity action by States Parties, including the

43 Article 93(10) of the Statute provides for the possibility that the Court, upon request, cooperate with and provide assistance to a State conducting an investigation into or trial in respect of conduct which constitutes a crime within the Court’s jurisdiction or which constitutes a serious crime under the relevant national law, including the transmission of evidence obtained in the course of an investigation or a trial conducted by the Court. 44 See, e.g., S.C. Res. 1325, U.N. Doc. S/RES/1325 (Oct. 31, 2000) (emphasising the responsibility of all States to put an end to impunity and to prosecute those responsible for genocide, crimes against humanity, and war crimes including those relating to sexual and other violence against women and girls, and in this regard stressed the need to exclude these crimes, where feasible from amnesty provisions). The Sexual and Gender-Based Crimes Policy Paper 353

United Kingdom initiative on preventing sexual violence in conflict and post- conflict situations,45 are all important in the fight against impunity. The United Kingdom’s engagement to commit resources and to use its G8 Presidency to push for stronger international action on this issue and the support this is attracting, are welcome developments in the campaign to correct the misperception that sexual violence is an unavoidable consequence of armed conflict and to ensure that such crimes are not given a lesser priority in investigations and prosecutions than other offences. This and other complementarity initiatives by States Parties, including domestic investigations and prosecutions, cooperation for the execution of ICC arrest warrants, and political support through a range of initiatives, are all critical for reinforcing the normative framework of the Statute for the accountability of gender-based crimes. The ICC can play its part with specific reference to sexual and gender-based crimes, to the extent that jurisdiction, admissibility and policy considerations permit, through cooperation at all levels with national judicial systems, and will strive to transform the public response to sexual and gender-based crimes in national jurisdictions worldwide. Ultimately, establishing a complementary system is critical for a comprehensive solution to these crimes. The strength of the system lies in the potential of shared responsibility and complementary action between the Court and the international community. The inimitable Hassan B. Jallow, the Chief Prosecutor of the ICTR once said: “[a]nalysing the state of sexual violence worldwide, I would conclude that it is in a terrible state. In most of the conflict situations we face today in the world, whether it is DRC or Sudan, sexual violence has become very prevalent and we need to find a way of dealing with this problem as a global community with what is really a biggest challenge to human rights.”46 For its part, the Office of the Prosecutor at the ICC will spare no effort to bring accountability for sexual and gender-based crimes and to deter the commission of such heinous crimes in the future. As a matter of policy, the Office

45 At the Global Summit to End Sexual Violence in Conflict held from 10 to 13 June 2014 practical steps to tackle impunity for the use of rape as a weapon of war were agreed upon, most notably the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict was launched. 46 Edwin Musoni, “Chief Justice Decries Cases of Sexual Violence,” The New Times (Nov. 27, 2012), http://www.newtimes.co.rw/news/index.php?a=61141&i=15189. 354 Bensouda will systematically include relevant charges in its cases on the basis of evidence of criminality. Much work lies ahead and indeed, the struggle to end impunity for sexual and gender-based crimes must be a global effort with both national and international efforts working in concert, in harmony and in a complementary fashion to achieve the desired results. By setting an example, together, through multi-levelled interface, understanding and cooperation, the international community can and will transform the public response to sexual and gender-based crimes worldwide, in and outside of conflict zones. Chapter 18 Challenging Impunity for Crimes of Sexual Violence The Efforts of Prosecutor Jallow to Set the Record Straight

Linda Bianchi

1 Introduction

In the twenty years since the creation of the International Criminal Tribunal for Rwanda (ICTR), there have been numerous occasions to review its work, to judge whether it has lived up to the lofty ideals placed before it or whether it has realized the aspirations placed on it to pull international criminal law from its state of latency to an active, developing endeavour. There are some who have pronounced that the ICTR may have been a failed experiment that was too costly, too slow and too far-removed from Rwanda to have truly achieved its goals of contributing to national reconciliation and to the restoration and maintenance of peace.1 There are certain truths that colour the lens through which the ICTR will be seen: it was more costly to operate than some had envisioned and the speed of conducting trials in an international setting was slower than expected. Still others laud the ICTR as one of the first mechanisms created by the international community to deliver criminal justice in an international context. In other words, for those who believe that international criminal law has a role to play in deterring threats to peace and security, then the ICTR is a starting point from where the next generation moves forward to build on what the ICTR achieved and to learn from what it failed to accomplish. Arguably, no one has been more aware of the momentous importance in capturing the lessons learned by the ICTR and passing them on for future use than Prosecutor Hassan Bubacar Jallow. This is particularly true in the difficult and complex field of the investigation and prosecution of sexual violence crimes. This chapter will focus on the work undertaken by Prosecutor Jallow to collect and analyze the experiences of the Office of the Prosecutor to understand how best to investigate and prosecute these crimes. His intentions from the outset were always twofold: to improve what appeared to be a failing record for attaining convictions for these crimes at the ICTR and, to harness whatever could be gleaned from the Office’s understanding to pass on to future investigators and

1 UN S/RES/955 (1994), 8 November 1994.

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_019 356 Bianchi prosecutors in the hope that lessons would be learned from the experiences of the ICTR and, consequently, the next generation would do better. The work of the ICTR on these issues reflects the international community’s acknowledgement that rape and sexual violence are serious and abhorrent crimes, requiring the strictest condemnation. At the same time, it is a testament to the reality of how difficult and challenging it is to successfully investigate and prosecute these types of crimes in the international criminal law setting. Being one of the first institutions to prosecute rape and sexual violence as an international crime, the ICTR had a lot to learn and, not surprisingly, made some mistakes along the way. Prosecutor Jallow, however, worked to ensure that those mistakes were not made in vain but instead chronicled to highlight the challenges faced in this particular field. It has been stated that, “Sexual violence has long formed part of armed conflicts and has empirically been shown not to be an incidental by-product, but a frequently used ‘weapon of war’.”2 The genocide that engulfed Rwanda in the spring of 1994 was no exception. The earliest reports coming out of the aftermath of the genocide recorded that “Rape was systematic and was used as a ‘weapon’ by the perpetrators of the massacres . . . and according to consistent and reliable testimony . . . rape was the rule and its absence was the exception.”3 Another in-depth report concluded in 1996 stated that sexual violence was committed on a massive scale and rape was extremely widespread.4 The jurisprudence of the ICTR certainly confirms these early reports. The evidence consistently elicited in almost every case prosecuted at the Tribunal detailed the occurrence of an unvarying pattern of sexual violence being committed throughout Rwanda, throughout the months of the genocide. As one commentator observed, while the ICTR’s record on convictions for sexual violence crimes can hardly be said to accurately reflect the pervasiveness of the

2 Judge Wolfgang Schomburg and Ines Peterson, “Genuine Consent to Sexual Violence Under International Law”, 101 Am. J. Int’l. L. (2007) 121. 3 See Report of the Special Rapporteur on the Situation of Human Rights in Rwanda, E/CN.4/1996/68, 29 January 1996, paras. 16–24, in The United Nations and Rwanda 1993–1996, Department of Public Information, United Nations (New York, 1996), Document 167 (submitted by Rene Degui-Segui, Special Rapporteur of the Commission On Human Rights) (Hereinafter Degui Report). 4 Human Rights Watch, Africa Human Rights Watch Women’s Rights Project, Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath, September 1996, Available at: http://www.hrw.org/en/reports/1996/09/24/shattered-lives, pp. 1 and 18. Challenging Impunity for Crimes of Sexual Violence 357 crimes, a close review of the jurisprudence of the ICTR demonstrates that the cases actually do chronicle the widespread nature of these assaults.5 Indeed, the Tribunal’s first judgment released after trial, Akayesu, confirmed that rape and sexual violence were committed as acts in furtherance of the genocidal goal of destroying the Tutsi population.6 Again, in one of the last trials completed at the ICTR, it was found that the rapes and sexual violence were widespread and systematic and the women were subjected to severe humiliation and physical injuries, thereby not only causing harm to the women but also, by extension, to their families and communities.7 The Office of the Prosecutor of the ICTR, at different stages of its mandate, recognized and actively prioritized investigating and prosecuting sexual violence crimes. The parameters for the prosecution of these crimes were set in the ICTR Statute, where only the crime of rape was specifically included as an enumerated prohibited act under the different offences falling within the Tribunal’s mandate.8 However, both rape and sexual violence were situated within a number of different articles in the Statute. Rape is specifically defined as a crime against humanity in Article 3(g). In addition, instances of sexual violence have been charged as a crime against humanity under the provisions criminalizing torture, persecutions on political, racial and religious grounds, and other inhumane acts (Article 3(f), (h), (i), respectively). Similarly, rape and crimes of sexual violence have been prosecuted as a war crime under Article 4(e) “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault”, and under (a) “violence to life, health and physical or mental well- being of persons, in particular [. . .] torture, mutilation or any form of corporal

5 Doris Buss, “Learning our Lesson? The Rwanda Tribunal record on prosecuting rape”, Rethinking Rape Law: International and Comparative Perspectives, Mc Glynn and Munro (Routledge Cavendish, 2010). 6 Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998, para. 731. (hereinafter Akayesu, Trial Judgement). 7 Prosecutor v. Edouard Karemera and Matthieu Ngirumpatse, Case No. ICTR-98-44-T, Judgement and Sentence, 2 February 2012, paras 1667 and 1668 (hereinafter Karemera et al., Trial Judgment). 8 This can be compared to the Statute of the ICC, as discussed by Prosecutor Fatou Bensouda in the preceding chapter, which specifically enumerates a more fulsome list of prohibited acts, including rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity as crimes against humanity. This list is not exhaustive, and, for example does not specifically include forced marriage or conjugal slavery, but goes further in recognizing the varying forms of gender based crimes committed during conflict. 358 Bianchi punishment”. And finally, rape and other forms of sexual violence can constitute the crime of genocide under Article 2 of the ICTR Statute.9 In 2003, when Prosecutor Jallow assumed the lead position within the OTP, he implemented an explicit policy to prioritize the prosecution of these types of crimes. The policy was adopted in recognition that it was necessary to do so in order to achieve the ICTR’s objectives of justice and reconciliation. Prosecutor Jallow openly and often asserted that determining responsibility for acts of genocide, war crimes, crimes against humanity and other gross violations of human rights could have the effect of deterring the commission of such crimes in future, and emphasized this to be particularly pertinent in the context of sexual violence crimes. The work of the ICTR, generally, in this field can be characterized as check- ered. On the one hand, the overall contributions it made to the development of the jurisprudence in this area of the law is to be commended. The case of Akayesu will endure as the groundbreaking first conviction entered for crimes of sexual violence in an international tribunal and the recognition that acts of sexual violence can constitute acts of genocide in the same way as any acts of serious bodily harm as long as such acts were committed with the intent to destroy a particular group targeted as such.10 The Trial Chamber found that the rapes and other sexual violence were committed against Tutsi women, resulting in their physical and psychological destruction, as well as that of their families and communities. It stated that sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole.11 However, on the other hand, from that point forward, the cases of the ICTR foundered, never truly meeting the high expectations of many in the international community who hoped that the subsequent cases would continue to build on the momentous foundation laid by Akayesu. Instead, the years after Akayesu saw few cases where sexual violence crimes were charged and, even

9 The OTP succeeded in prosecuting and in holding accused criminally culpable for acts of rape, either as constituent acts of genocide (Akayesu, Gacumbitsi, Muhimana, Bagosora, Karemera and Ngirumpatse), or crimes against humanity (Akayesu, Semanza, Gacumbitsi, Muhimana, Bagosora, Hategekimana, Augustin Bizimungu, Nyiramasuhuko, Ntahobali, Karemera, Ngirumpatse and Ngirabatware), and as a war crime (Augustin Bizimungu as rape, Bagosora, Nyiramasuhuko and Ntahobali) as outrages upon personal dignity, and Semanza, as violence to life, health and physical or mental well-being, the conviction being entered on appeal. 10 Akayesu, Trial Judgement, para. 731. Part of the significance of this groundbreaking judgement is that rape is not included as a prohibited act in the Genocide Convention of 1948 nor is gender included as a protected group. 11 Ibid., para. 731. Challenging Impunity for Crimes of Sexual Violence 359 where such crimes were charged, the trials mostly ended in acquittals. In the Tribunal’s history, 52 out of the total 93 accused indicted were charged with rape or other crimes of sexual violence. Of these 52 accused, 13 accused have been convicted of these crimes with several appeals from those convictions still pending at the time of writing, 23 were acquitted with one appeal still pending, one accused died during trial, and charges in the remaining six cases were dropped as part of plea negotiations or through amendment of the indictments. In addition, 7 cases (including 4 fugitive cases) were referred pursuant to Rule 11 bis to Rwanda or France for trial and 2 high-level fugitive cases were transferred to the Mechanism for International Criminal Tribunals (MICT), which assumed responsibility for all of the ICTR’s remaining tracking operations, effective 1 July 2012.12 By 2003, many within the OTP recognized the developing pattern in the jurisprudence and identified that there was a significant problem on-hand. It was at that point that Prosecutor Jallow joined the OTP and efforts were made to ascertain the problems, remedy the shortcomings and learn from the mistakes of the OTP’s experience in investigating and prosecuting these types of crimes.

2 The Completion Strategy

In October 2003, Prosecutor Jallow took the helm of an office that had come under increasing criticism and sometimes intense condemnation by the international community for what was perceived to be significant failures to properly investigate and prosecute crimes of sexual violence. At the same time, the tools at the office’s disposal to rectify the situation were severely limited by the mandate passed by the United Nations that the ICTR must implement a Completion Strategy to complete its work and close down. Resolution 1503, adopted by the Security Council in August 2003 called on the office to complete its work in three phases: i) all investigations by the end of 2004; ii) all trial activities at first instance by 2008; and, iii) all of its work by 2010.13 Under this mandate, the first organ of the office to be directly affected was the Investigations Division which immediately entered a phase of downsizing and winding up its work. It should be noted that a Sexual Assaults Investigative

12 These most-up-to date statistics are taken from the Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Post-Conflict Regions: Lessons Learned from the Office of the Prosecutor for the International Criminal Tribunal for Rwanda, January 2014; http://www.unictr.org/portals/0/English/Legal/Prosecutor/ ProsecutionofSexualViolence.pdf. 13 UN S/RES/1503 (2003), 28 August 2003, p. 2. 360 Bianchi

Team did exist at the ICTR from about 1997, but it was disbanded in 2000 by the then Prosecutor of the ICTR. In 2003, a new investigative Sexual Assaults Team was formed with 3 female investigators. Given the Completion Strategy, all new investigations ceased by 2005. Completing new investigations on new targets with a focus on sexual violence crimes was not feasible in light of the Completion Strategy. The Prosecutor had to work with the files already in existence. The focus, therefore necessarily had to be on improving the prosecution of accused charged in existing indictments.

3 May 2005 Workshop

By 2005, the office embarked on a course aimed at doing just that. In May 2005, a workshop on the prosecution of sexual violence was convened for the entire office. The aim of the workshop was to review the office’s caseload and improve its prosecution strategy to ensure that prosecution of crimes of sexual violence was not only effective but was also as routine as the prosecution of acts of extermination, murder or any other crime that fell within the Tribunal’s mandate. Much of the workshop focussed on how best to utilize what had become known as the “Rape Database”. This Database had been created in 2003. The Rape Database is comprised of different types of evidence collected in relation to sexual violence crimes. One of the most striking elements of the Database is a collection of 405 statements taken by OTP investigators between 1995 and 2002 from rape victims, eye-witnesses to rape and other corroborative witnesses. This collection represented a sample of the larger number of such statements taken by the OTP. The evidence and information in the Database was analyzed by the OTP and a consultant, Binaifer Nowrojee, and a report was provided which detailed the implications of the numerous statements respecting the nature of the sexual violence perpetrated in Rwanda during the genocide. It was acknowledged that the Database brought together an invaluable collection of evidence waiting to be exploited to its full potential, which, until that point, had not been done. In a few cases, the OTP attempted to use the evidence in the Database and to call Ms. Nowrojee as an expert to testify on the basis of the collection of evidence and her analysis of that evidence. However, it proved to be a difficult and unsuccessful exercise to make use of the contents of the Database and the report analyzing it.14

14 See, for example, The Prosecutor v. Bizimungu et al., Case No. ICTR-99-50-T “Decision on Defence Motions Pursuant to Rule 98 Bis”, 22 November 2005, paras 85 to 96; All four accused in the this case were acquitted of the charges of rape as a crime against humanity at the summary acquittal stage of the trial, as the Trial Chamber found that no evidence Challenging Impunity for Crimes of Sexual Violence 361

Part of the May 2005 workshop was also devoted to a detailed review of the indictments of current and up-coming cases to assess the pleadings of rape and/or sexual violence and the underlying evidence in order to provide any necessary recommendations to be used by the prosecuting attorneys to bolster or improve their files going forward to trial. A follow-up workshop was shortly thereafter conducted in Kigali with the Investigations Division as the second phase, or an extension, of this course. At the time, supportive assistance was being provided by the Investigation Division for on-going cases and therefore it was deemed to be useful and beneficial to discuss these same issues with the remaining investigative teams to determine what, if anything, could be done to bolster the cases going forward with these charges. The May 2005 workshop was an important juncture in the development of Prosecutor Jallow’s policy to deal with the Office’s record with respect to these offences. It was an open acknowledgement to all staff within the OTP that he was prioritizing these crimes. It was at this stage that the first discussions concerning potentially developing a best practices manual were initiated. Due partly to the heavy workload of the OTP and the pressures it was facing in relation to the Completion Strategy, it would be a few more years before that initiative would actually be realized.

4 Establishment of the Committee for the Review of the Investigation and Prosecution of Sexual Violence Crimes

As part of the emphasis placed on improving the handling of cases involving charges of sexual violence, on June 1, 2007, the Prosecutor presided over an in-house conference, titled the Sexual Violence Legal Forum. This Forum was intended to be a follow-up to the effort commenced at the May 2005 Workshop in relation to these offences. At the Forum, it was noted that, at that juncture of the Tribunal’s life, 13 completed cases of the ICTR had included charges of rape or sexual violence. Of these 13, only 4 of the cases had resulted in convictions for the commission of these crimes. During the Forum, Prosecutor

had been presented by the Prosecutor linking the accused to the rapes that had been committed. To establish the link, the Prosecutor had relied on the testimony given by the expert witness Binaifer Nowrojee. However, the Trial Chamber, in its “Decision on the Admissibility of the Expert Testimony of Dr. Binaifer Nowrojee” of 8 July 2005, declared inadmissible “those portions of Dr. Nowrojee’s evidence that fall outside the scope of her expertise or express opinions on ultimate issues before the Chamber”, which included her opinion regarding government authorities’ knowledge of rapes throughout Rwanda in 1994. 362 Bianchi

Jallow noted that this translated into a conviction rate of about 33%, while the conviction rate for the cases prosecuted by the OTP at that point was generally over 90%. In light of this apparent low success rate, the Prosecutor established a committee to review the OTP’s record with respect to both charging and attaining convictions for the crimes of sexual violence and rape. As had been discussed at the May 2005 Workshop, the Prosecutor was keen on developing a best practices manual for the investigation, charging and prosecution of sexual offences. The work to be undertaken by this Committee was suffused with this specific long-term goal in mind. From the outset, the Prosecutor actively supported the work of the Committee. For example, he granted release time from the normal casework of the Committee members to allow them to devote the necessary time to the review. Additionally, he mandated all attorneys in the OTP to cooperate fully with the Committee’s requests. Essentially, the aim of the review was twofold: to identify both the problems and challenges that the Office had faced in securing convictions for the crimes of sexual violence, as well as to determine the indicia that led to successful convictions in those few cases where the accused had been convicted of the offence(s). The review covered the 13 completed cases, including a review of the information, briefs, transcripts, judgments, and interviewing the attorneys on the files to gather as much detailed information about the scope, progress, success and failures of each prosecution. At the completion of this review, a Report was submitted to Prosecutor Jallow. During the Committee’s work, a particular problem became alarmingly apparent: if rape and sexual violence was as rampant as all the reports and evidence elicited suggested, why were these types of charges not included in more cases? It was determined that a true picture of the OTP’s record regarding the treatment of these offences could only be attained if a further review was conducted into the remaining cases of the ICTR, where rape and/or sexual violence had not been charged, to determine in each case whether any evidence of rape and/or sexual violence formed part of the dossier, and if so, why had charges not been laid. This issue was presented to the Prosecutor with the submission of the Report on the 13 cases. Prosecutor Jallow agreed without hesitation to expand the scope of the review to include a more expansive coverage of all cases of the ICTR. This phase of the Committee’s work generated a second Report to the Prosecutor. The third phase of the Committee’s work was a natural extension of the conclusions and opinions reached by the Committee in it’s first two reports: to implement the lessons learned into the on-going and future cases of the ICTR. Again, this third phase of the Committee’s work was fully endorsed by Challenging Impunity for Crimes of Sexual Violence 363 the Prosecutor. The work entailed Committee members working with different trial teams to review evidence, pleadings, prosecution strategies and legal theories being put forth by the teams. Depending on the status of each case, particularly how far along it was in its trial, this third phase of the Committee’s work had mixed results. Importantly, in light of the Completion Strategy and the impending closure of the ICTR, which overshadowed all of the work of the OTP, the Prosecutor recognized the significance of sharing the fruits of the Committee’s labour with the international community at large. The Prosecutor immediately noted that, from a legacy standpoint, the lessons learned by the ICTR should be shared to the greatest extent possible in the hope that future international criminal tribunals, particularly the ICC, would not make the same mistakes as the ICTR. Instead, by sharing these lessons with them, it was hoped that the ICTR’s successors would pick up where it had left off in the progression of dealing with these types of offences. In furtherance of this clear legacy-sharing objective, Prosecutor Jallow tasked the Committee with developing a Best Practices Manual. The OTP Best Practices Manual was aimed at offering recommendations regarding how best to investigate and prosecute these crimes in an international setting.

5 First Best Practices Manual

In 2008, the Committee released its first manual: “The Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Situations of Armed Conflict”. The Manual provided recommendations on numerous aspects within the entire scope of the investigation and prosecution of these crimes, from the manner in which investigations ought to be commenced with a crime-based focus, not target-based focus,15 the recommended composition of an investigative team, to the best prosecutorial strategies for bringing the evidence to court in an appropriate fashion.

15 The target-based approach focussed the investigation on specific individuals to determine whether any offences had been committed by him/her; whereas, a crime-based approach focuses on the commission of crimes and an extension then to the perpetrator. The latter is better geared to ensuring that all offences are investigated whereas the target-based approach has been criticized as being ripe for overlooking crimes such as rape and sexual violence as the most responsible leaders and planners were rarely on the ground committing the assaults themselves. Target-based investigations also failed to focus on the crimes committed by persons other than the targeted individuals. 364 Bianchi

As part of its mandate, the Committee also included discussion on prosecutorial strategies and legal tools that prosecutors could use to address the many legal and evidentiary difficulties inherent to the prosecution of these offences. For example, the Committee focussed on the elements of rape and a corresponding discussion of how legally to attribute liability to those in the highest echelons of power in Rwanda. As part of the Completion Strategy, the Prosecutor was mandated to focus prosecutions on the most senior leaders suspected of being “most responsible” for the atrocities committed in Rwanda.16 The accused before the ICTR were therefore often persons who held high- ranking offices and positions in Rwanda’s government, military and other civilian leaders and authority figures such as clergy and businessmen. It was foreseen that these would likely be the types of accused that would be pursued by other international criminal tribunals, such as the ICC, which, is in fact the case.17 Therefore, it was necessary to take the time to consider the different legal strategies available so as to attach liability to these types of offenders, who were often not physically present during the commission of the actual offence. For example, in the Karemera et al. case, the two accused were respectively, an interim government minister and party leader and were held accountable for rapes perpetrated throughout Rwanda during the genocide.18 Although these accused did not personally commit the rapes, they were convicted as members of an “extended form” of joint criminal enterprise for rapes committed by their co-perpetrators and that these offences were a natural and foreseeable consequence of the common plan to destroy the Tutsis.19 The experience of the ICTR and the Manual, therefore, highlighted the necessity of exploring different legal theories to attach liability to the type of accused who would likely be the targets of international criminal investigations. Consideration was also given to the different evidentiary strategies to establish the requisite elements of the offence. There has been on-going debate about whether, given the detrimental effects that testifying in court can have on victims of rape and sexual violence, these victims ought to be called to

16 UN S/RES//955 (1994), 8 November 1994, p. 1. 17 See, for example, ICC, Office of the Prosecutor, Prosecutorial Strategy 2009–2012, para. 19. 18 Karemera et al. Trial Judgement, paras 1477, 1483–1487, 1490, 1670, 1682 (Appeal pending at the time of publication). 19 Karemera et al. Trial Judgement, paras. 1476–1477, 1490. See also Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54, Judgement and Sentence, 20 December 2012, paras. 1392–1393 where Ngirabatware was convicted of rape as a crime against humanity on the basis of extended JCE liability (Ngirabatware Trial Judgement) (Appeal pending at the time of publication). Challenging Impunity for Crimes of Sexual Violence 365

testify at all. There is an acceptance that it is important for the victim to be able to tell his or her story, that testifying is an important way of giving a voice to the victim and of helping the victim find a sense of closure and ownership over the experience, thus contributing to the healing process. This certainly proved to be true in many instances at the ICTR. However, this was not always the case. There were often physical, mental and spiritual effects associated with the very act of testifying. In one case, there was a very practical and tragic effect where the spouse of a victim had not known of the acts the victim had suffered during the genocide. Through the process of testifying for the OTP, her spouse came to learn of the assault which then had serious consequences, leading to the breakdown of her marriage. While these types of issues can, to a certain extent, be managed during the trial process to protect witnesses from this type of consequence, the reality is that in many areas of the world, where conflict unfortunately tends to occur on a more frequent basis, societal norms and gender expectations can carry certain ramifications that must be borne in mind in determining whether to call particular individuals as witnesses. In light of the varied effects that testifying could have, it was believed that, to be successful, a prosecutor would need to determine whether a victim could or should be called to testify on a case-by-case basis. As such, it was important to develop alternative strategies that would allow these types of prosecutions to proceed, even without the victim in the courtroom. The Prosecutor managed several cases which utilized unique strategies to bring evidence of sexual violence to the courtroom. For example, due to the extreme sensitivity of eliciting this type of evidence, and the detrimental impact and potential for re-traumatisation that providing such evidence could have on a victim, the OTP developed alternative methods by which to bring evidence of sexual violence to trial. In light of the leadership role of the accused appearing at the ICTR and given that in many cases, rape was charged under a form of superior liability, this approach enabled the OTP to lead relevant and eyewitness testimony about rapes at particular locations/crime scenes without necessarily calling the victims themselves. A variety of sources have been used at the ICTR, not just in-court testimony from rape victims. These strategies included the admission of written statements and facts as found in previous, relevant cases.20 When dealing with mass atrocities, sexual violence evidence could be collected from a broad array of sources, not just from rape victims. Often observers or other eyewitnesses have powerful testimony that can be used in the courtroom. This was done

20 See, generally, the Karemera et al. Trial Judgement where the Prosecution used both of these methods successfully. 366 Bianchi in the Bagosora et al. case, where the evidence of rapes and sexual violence crimes was elicited through witnesses who were not necessarily victims themselves. In that case, almost every witness was asked to relate what they saw with respect to the occurrence of sexual violence crimes. This strategy ultimately proved successful. The Trial Chamber in the Bagosora et al. case found that sexual assaults occurred at civilian roadblocks in Kigali on the basis of the evidence of General Dallaire and Major Brent Beardsley who testified about what they saw at those locations. No victim of sexual violence at these roadblocks was called in this trial. The defendant Bagosora was convicted on the basis of this evidence for the sexual assaults carried out by his subordinates at these roadblocks.21 It was suggested therefore that one method of eliciting the evidence would be to routinely question all witnesses about their knowledge of sexual assaults. It was proposed that this strategy would work particularly well in light of supporting a charge that the rapes were widespread or systematic.

6 Dissemination of Best Practices Manual

Upon the finalization of the Best Practices Manual, the Prosecutor immediately embarked upon a campaign to publicly disseminate the Manual as widely and comprehensively as possible. In the years following its completion, the Manual was distributed publicly at numerous conferences concerning global action against gender-based crimes in the hope that the ICTR’s experiences could provide a lessons learned platform to assist future tribunals to achieve more successful prosecutions. For example, in March 2009, the Manual was distributed for the first time by the Prosecutor during a conference held in Dakar, Senegal. The conference was a Gender Justice Forum whose focus was on “Adopting A Holistic Approach to Gender Justice”. The Prosecutor delivered a paper which focused on the ICTR’s record in the prosecution of sexual violence crimes, including the challenges faced, the successes achieved and the setbacks experienced by the office. He proposed practices for the future prosecution of sexual violence crimes, presented the work of the Committee and distributed copies of the Best Practices Manual. Within months, in November 2009, the work of the Committee and the Best Practices Manual were again presented and distributed at a conference held in Arusha for prosecutors from national jurisdictions who were involved with the

21 See The Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T, Judgement and Sentence, 18 December 2008, paras. 1908, 1920–1924 (hereinafter Bagosora et al. Trial Judgement). Challenging Impunity for Crimes of Sexual Violence 367 prosecution of international crimes in their home states. At the conference, it was again reiterated that the investigation and prosecution of these crimes, when committed in the international context, must be approached in a unique and specific manner in order to increase the successful outcome of the cases. Since then, the Best Practices Manual has been shared as widely and publicly as possible. The Prosecutor has advertized its existence and offered to share the experiences of the OTP. While the Manual touched on the difficulties and challenges faced in dealing with the victims and witnesses of sexual violence crimes in the context of the judicial system, it was agreed that a more fulsome review had to be undertaken specifically on how best to deal with these often very sensitive and vulnerable individuals. Accordingly, in 2011, the Committee produced a second manual entitled “Best Practices Manual on the Handling of Victims and Witnesses of Sexual Violence Testifying in International Criminal Tribunals”. This manual focused on the management of victims and witnesses in the investigation and trial phases of the Tribunal’s cases. The Prosecutor convened an international workshop in Kigali, Rwanda in November 2012 to review both manuals and it was agreed to merge the two into one comprehensive document. The final Manual was published on the ICTR website in January 2014.22

7 On-Going Legacy

As anticipated by Prosecutor Jallow and the Committee, the experiences of the ICTR in the investigation and prosecution of sexual violence crimes and the creation of the Best Practices Manual have, in fact, created a legacy of lessons-learned that could be used by future organizations. Prosecutor Jallow’s commitment to recognizing and understanding both the achievements and inadequacies of the ICTR’s record in prosecuting these offences set a precedent which has been acknowledged and acted upon by the international community. In numerous instances, the Manual has served as a precedent or a forerun- ner for the work of subsequent organizations. It is worthwhile to note that in February 2014, the ICC released its Draft Policy Paper on Sexual and Gender Based Crimes. The Draft policy Paper, which is discussed in Chapter 17 by ICC Prosecutor Fatou Bensouda, specifically refers to the work of the ICTR and the Best Practices Manual in noting that “it draws on the experiences and lessons learned during the first decade of the work of the Office, and relevant

22 See supra, 13. 368 Bianchi jurisprudence from the ICC and the international ad hoc tribunals.”23 The Draft Policy Paper echoes many of the principles articulated in the Manual, including, that the investigation of sexual and gender-based crimes presents its own specific challenges, acknowledging that staff working with these offences need specialized training and reaffirming that any interactions with victims of these crimes must be carried out with a clear policy of ensuring the prevention of possible secondary or re-traumatisation.24 Similarly, the international community has undertaken the development of an “International Protocol on the Documentation and Investigation of Sexual Violence in Conflict, Basic Standards of Best Practice”. The Foreign and Commonwealth Office of the United Kingdom has spear-headed this initiative, which includes participation by numerous other states, NGOs and third parties. In May 2012, the British Foreign Secretary, William Hague, launched the Prevention of Sexual Violence Initiative.25 The Protocol forms part of the UK Foreign Secretary’s Preventing Sexual Violence Initiative and is the product of general support for a non-binding international protocol that sets out the basic standards of best practice on the documentation and investigation of sexual violence in conflict. The Protocol, which was produced with the collaboration of over 200 experts, was recently launched at a Global Summit to end Sexual Violence in Conflict, held in London, England in June 2014. The Summit brought together numerous delegates from various nations, including Ministers, non-governmental organizations, and other interested actors in this field.26 The purpose of the Protocol was noted to be the setting out of international standards on how to collect the strongest possible information and evidence, whilst protecting witnesses, in order to increase convictions and deter future perpetrators. Again, here, the ICTR’s Best Practices Manual has been specifically referenced by the drafters as providing a precedential guide on the development of this UK-sponsored Protocol. It would seem that the acknowledgement made by Prosecutor Jallow that sexual violence crimes are unique and require special consideration and specific approaches to investigate and prosecute has been adopted and amplified

23 ICC, DRAFT Policy Paper on Sexual and Gender Based Crimes, February 2014, http://www .icc-cpi.int/iccdocs/otp/otp-draft-policy-paper-february2014-eng.pdf para. 8, footnote 8. 24 Ibid., pages 3, 4 and 16. 25 See, generally, https://www.gov.uk/government/policies/preventing-conflict-in-fragile- states--2/supporting-pages/preventing-sexual-violence-initiative and http://prevent sexualviolenceinconflict.tumblr.com/. 26 For a full review of the purpose, process and outcome of the Summit, see: https://www .gov.uk/government/topical-events/sexual-violence-in-conflict. Challenging Impunity for Crimes of Sexual Violence 369 by the international community. The work of the ICTR has set a strong foundation that is being built upon and will, hopefully, ultimately contribute to the cessation or decrease in frequency of commission of these crimes.

8 Development of Principles of Legal Elements of the Offence

As noted at the beginning of this contribution, the ICTR has always been commended for delivering the landmark case of Akayesu. In addition to being the first conviction for genocide, and rape and sexual violence, the international community believed a victory had been won in the way in which Akayesu defined the elements of sexual violence and rape. The Akayesu case developed a conceptual approach to the definition of sexual violence and rape, defining rape as a “physical invasion of a sexual nature, committed on a person under circumstances which are coercive”.27 It then went on to describe sexual violence “which includes rape, as any act of a sexual nature which is committed on a person under circumstances which are coercive. Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact.” By these definitions, rape necessitated some sort of physical invasion, which was sexual in nature, while sexual violence included any act of a sexual nature, not requiring any invasion of the body. The Trial Chamber in Akayesu also stated that, “coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion, and other forms of duress which prey on fear or desperation may constitute coercion and coercion may be inherent in certain circumstances, such as armed conflict or the military presence of Interahamwe among refugee Tutsi women at the bureau communal.”28 In Akayesu, the Trial Chamber advocated a conceptual approach to the elements of rape, specifically rejecting “a mechanical description of objects and body parts” as not being able to capture the central elements of rape.29 The Trial Chamber declined to “catalogue specific acts in its definition” focusing rather “on the conceptual framework of state-sanctioned violence.”30 Rape was considered to be a form of aggression.

27 Akayesu, Trial Judgement, para. 597, which was accepted and followed by The Prosecutor v. Musema, Case No. ICTR-96-13-A Judgement and Sentence, 27 January 2000, para. 226 (hereinafter Musema Trial Judgement). 28 Akayesu Trial Judgement, para. 688. 29 Ibid., para. 597. 30 Ibid., para. 687. 370 Bianchi

The Trial Chamber held that, “Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is violation of personal dignity and rape in fact constitutes torture when inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”31 The Akayesu formulation was then adopted and applied by the next case in the ICTR to wrestle with this issue, Musema, which concurred in “the conceptual approach set forth in the Akayesu Judgement for the definition of rape, which recognizes that the essence of rape is not the particular details of the body parts and objects involved, but rather the aggression that is expressed in a sexual manner under conditions of coercion.”32 It seemed that the manner in which the crimes were being defined rightly captured the coercive context in which they invariably take place during conflict. The only other ICTR cases explicitly to accept the Akayesu formulation were the decisions in the cases of Niyitegeka and Muhimana.33 A schism then seemed to appear in the developing jurisprudence. The Furundzija decision at the ICTY was delivered just months after Akayesu. In Furundzija, the Trial Chamber reviewed the definition as conceptualized by the Akayesu Trial Chamber, but held that it was necessary to look for principles of criminal law common to the major legal systems of the world, that is domestic jurisdictions, to arrive at an accurate definition of these crimes.34 Following its review of national laws, the Trial Chamber concluded that, “the following may be accepted as the objective elements of rape:

(i) the sexual penetration, however slight; (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator;

31 Ibid., para. 597. 32 Musema, Trial Judgement, para. 226. In the ICTY, the first case to consider the Akayesu definition, Prosecutor v. Delalic, Case No. IT-96-21-T, Trial Judgement, 16 November 1998, paras. 478–479 also endorsed its formulation of the definition. 33 Note that the Trial Chamber Judgement in Niyitegeka, which was released on 16 May 2003, after the Trial Chamber and the Appeals Chamber decisions in Kunarac, adopted the test as pronounced in Akayesu, with no consideration of the apparent discordance in the jurisprudence. See para. 456. See also, Prosecutor v. Muhimana, Case No. ICTR-95-1B, Judgement and Sentence, 28 April 2005, para. 551. 34 Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgement, 10 December, 1998, para. 177. (hereinafter Furundzija Trial Judgement). Challenging Impunity for Crimes of Sexual Violence 371

(ii) by coercion or force or threat of force against the victim or a third person.”35

While this judgement seemed to explicitly reject most of the reasoning in Akayesu, importantly, the Trial Chamber then went on to state that “international criminal rules punish not only rape but also any serious sexual assault falling short of actual penetration.” The Trial Chamber therefore accepted that the prohibition against sexual crimes embraced all serious abuses of a sexual nature inflicted “upon the physical and moral integrity of a person by means of coercion, threat of force or intimidation in [a] way that is degrading and humiliating for the victim’s dignity.”36 The Trial Chamber, therefore, recognized that both categories of acts, sexual violence and rape, were criminalized in international law, and was therefore consistent with Akayesu in that sense. Also, significantly, Furundzija did not seem to alter the test for the mental element of rape, observing that the test was satisfied where such acts were done under “coercion or force or threat of force against the victim or a third person.”37 The next case to consider the elements of this crime was the ICTY case of Kunarac. The Appeals Chamber accepted a definition of rape in Kunarac that included absence of consent, and knowledge of absence of consent, as essential elements of the crime.38 In Kunarac, the Appeals Chamber concurred in the definition of rape that was adopted by the Trial Chamber in that case, as follows:

[T]he actus reus of the crime of rape in international law is constituted by: the sexual penetration however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.39

35 Furundzija, Trial Judgement, para. 185. 36 Furundzija, Trial Judgement, para. 186. 37 Ibid., para. 185. 38 Prosecutor v. Kunarac et al., Case No. IT-96-23 & IT-96-23/1-A, Judgement, 12 June 2002, paras 127–128. (hereinafter Kunarac Appeal Judgement). 39 Kunarac Appeal Judgement, paras 127–128. 372 Bianchi

A concern of the OTP with the manner in which the law seemed to be developing was that a consequence of a refocusing on the non-consensual nature of sexual violence would entail the need to explore the victim’s conduct and state of mind, with a view to obtaining explicit evidence of non-consent.40 Another concern was that ICTR Trial Chambers in the cases of Semanza, Kajelijeli and Kamuhanda41 appeared to consider that they had to make a choice between the Akayesu and Kunarac approaches, and explicitly adopted the definition of rape as expressed in the Kunarac decision, ostensibly incorporating non-consent as a requisite element of the crime. The OTP therefore took the first opportunity that presented itself to clarify the law and raise the question of whether non-consent is a material element of the crime of rape with the Appeals Chamber. That opportunity arose in the case of Gacumbitsi. The Prosecutor brought a ground of appeal in that case arguing that the Prosecution should not have to prove non-consent on the victim’s part as a material element of the crime of rape. Correspondingly, it should not have to prove the perpetrator’s knowledge of this non-consent as part of the requisite intent. Given the coercive circumstances associated with rape as a crime in international criminal law, consent is immaterial. In the context of international crimes such as genocide, crimes against humanity and war crimes, which all involve situations of armed conflict or violence, there is a presumption of non-consent that would negate the need for the Prosecution to establish lack of consent as an element of the crime. It would be enough to demonstrate the existence of coercive circumstances to establish the crime of rape. The Prosecution also argued that rape should be viewed in the same way as other violations of international criminal law, such as torture or enslavement, for which the Prosecution is not required to establish absence of consent. The Prosecutor urged the Appeals Chamber to view rape in the context of mass crimes in the jurisdiction of the Tribunal as a form of aggression, distinct from rape in domestic jurisdictions.

40 Questions, however phrased, designed to elicit the necessary testimony must appear, at least to some victims, as surreal, if not offensive, given the circumstances they will have described. 41 Prosecutor v. Semanza, Case No. ICTR-97-20, Judgement and Sentence, 15 May 2003, para. 344; Prosecutor v. Kajelijeli, Case No. ICTR-98-44A, Judgement and Sentence, 1 December 2003, para. 914 and Kamuhanda, No. ICTR-99-54A, Judgement and Sentence, 22 January 2004, para. 708. Challenging Impunity for Crimes of Sexual Violence 373

8.1 Gacumbitsi Appeals Judgement The Appeals Chamber in the Gacumbitsi Appeal Judgement did not entirely accept the Prosecution’s arguments.42 However, the decision did confirm that the key consideration in determining the question of consent is, nevertheless, whether there were coercive circumstances. The Appeals Chamber confirmed the Kunarac Appeals Chamber decision, holding that non-consent and knowledge thereof are elements of rape as a crime against humanity.43 However, importantly, the Appeals Chamber went on to note that “the Prosecution can prove non-consent beyond reasonable doubt by proving the existence of coercive circumstances under which meaningful consent is not possible.”44 The Appeals Chamber went on to state that “it is not necessary, as a legal matter, for the Prosecution to introduce evidence concerning the words or conduct of the victim or the victim’s relationship to the perpetrator. Nor need it introduce evidence of force. Rather, the Trial Chamber is free to infer non-consent from the background circumstances, such as an on-going genocide campaign or the detention of the victim.”45 The Appeals Chamber also reasoned that, as to the accused’s knowledge of the absence of consent of the victim, “knowledge of non-consent may be proven, for instance, if the Prosecution establishes beyond reasonable doubt that the accused was aware, or had reason to be aware, of the coercive circumstances that undermined the possibility of genuine consent.”46 While the actual position taken by the Appeals Chamber was not a full endorsement of the Prosecutor’s submission, the OTP took the position that it

42 Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64-A, Judgement, 7 July 2006 (hereinafter Gacumbitsi Appeal Judgement). It is interesting to note that Judge Wolfgang Schomburg, who sat as a member of the Appeals Chamber panel in Gacumbitsi, wrote an article titled “Genuine Consent to Sexual Violence Under International Law”, cited, supra at footnote 4, where Judge Schomburg essentially agrees with the arguments put forth by the Prosecution in the Gacumbitsi Appeals Judgement. In this article, Judge Schomburg specifically acknowledges that in the context of international crimes such as genocide, crimes against humanity and war crimes, “consent cannot be considered the nub of crimes of sexual violence within the framework of international criminal law.” (p. 138). Judge Schomburg goes on to state that “the peculiar circumstances of crimes of sexual violence under international law militate in favor of shifting the focus away from consent as an element of the crime.” (p. 139) 43 Gacumbitsi Appeal Judgement, para. 153. 44 Gacumbitsi Appeal Judgement, para. 155. 45 Ibid., para. 155. 46 Ibid., para. 157. 374 Bianchi had lost the battle but won the war – the judgement underscored the importance of viewing rape in the context of mass crimes and when considering the mental elements of such crimes, placed the emphasis on the presence of coercive circumstances.47

9 Conclusion

In the last two decades, the work of the ICTR has contributed to an awakening and an acknowledgement within the international community that explicit emphasis must be placed on the specific issues inherent in the investigation and prosecution of sexual violence crimes in order for these crimes and their harmful effects to be properly addressed. The emphasis placed on these crimes signalled a new era – one highlighting the crisis posed by the rampant use of sexual violence crimes during armed conflict. Overall, the ICTR was successful in achieving meaningful milestones in combating the pervasiveness of this crime. The ICTR challenged impunity through its recognition that the crimes were fully within its mandate to prosecute as serious violations of international humanitarian and criminal law, and through the actual prosecutions and convictions of numerous individuals. The most meaningful contribution made to the efforts to bring perpetrators of these crimes to justice is not found in the actual statistics of the cases of the ICTR, but in the enormous effort made by Prosecutor Jallow in scrutinizing the cases of the ICTR to redirect the manner in which the Office conducted its investigations and prosecutions of these offences in order to improve its own record. Possibly even more important for the development of international criminal law generally, Prosecutor Jallow provided an important legacy to the international community and, most specifically, future tribunals, in sharing the lessons learned so that future efforts to pursue justice could benefit from the experiences of the ICTR’s pioneering work.

47 The emphasis on the existence of coercive circumstances seems to be present in the manner in which the International Criminal Court has defined the element for rape as a crime against humanity “The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.” See ICC Elements of Crimes, available at http://www.icc-cpi.int/NR/ rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf, p. 8. Chapter 19 Justice Hassan Bubacar Jallow and Gender Justice in International Criminal Prosecutions

George William Mugwanya

[T]he investigation and presentation of evidence relating to sexual violence is in the interest of justice.1

1 Introduction

I would like to thank the editors of this book for conceiving and implementing the idea of writing a book to celebrate one of the greatest jurists Africa has produced. I come from a community where as a general practice (with very scanty exceptions), commemorations in honour of great people, are carried out after their passing. I am happy that the editors of this great project have brought us together to write essays to reflect on some of Justice Jallow’s contributions when he is still in our midst. I am also privileged to have been invited to make a contribution to this collection from among so many people that have worked with Justice Jallow. I have had the opportunity of working with him for about ten years now at the United Nations International Criminal Tribunal for Rwanda.2 He is a great inspiration to me, at both the personal and professional levels. He is gentle, respectful, but solid in enforcing principles and values. He listens, respects diverse views, and above all, does not shy away from taking decisions that enforce the norms he was appointed to enforce as the Tribunal Prosecutor. He acts with impartiality and independence. He is an admirable jurist and international civil servant. It is not possible within the confines of this paper to discuss all Justice Jallow’s contributions. I will therefore focus on one, namely his contribution towards the achievement of gender justice in international criminal prosecutions. Following this introduction, part II of this chapter provides an overview

1 Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment of the Trial Chamber, ¶ 417 (Sept. 2, 1998), http://www.unictr.org/Portals/0/Case/English/Akayesu/judgement/akay001 .pdf. 2 Hereinafter the “ICTR,” or “Tribunal.”

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_020 376 Mugwanya of the challenges of prosecuting rape and gender-based violence at international courts generally, and at the ICTR in particular, before Prosecutor Jallow assumed office as chief prosecutor. Part III then discusses the actions and programs Justice Jallow implemented during his tenure with respect to the prosecution of these crimes, building on efforts by his predecessors, and the foundation laid by the seminal Akayesu Judgment. Part IV provides the concluding recapitulations. It is argued that the effective prosecution of gender crimes calls for a multifaceted approach, a key component of which is a leadership in the prosecution office that is extremely conscious of the seriousness of these crimes, the challenges that must be surmounted to address them, and the need to inspire all staff involved in their investigation and prosecution. Prosecutor Jallow afforded such leadership that inspired attorneys, investigators and the entire prosecution office in taking all necessary steps – spanning the entire criminal process: from investigation, through to trial and appeal.

2 Responding to Rwanda’s Mass Atrocities – Rape and Sexual Violence

In what has come down in history as Rwanda’s 100 darkest days, between April 6 and July 1994, about one million innocent civilians were slaughtered. Moreover, there were reports of widespread rapes and sexual violence targeting Tutsis throughout Rwanda.3 The UN Security Council, pursuant to Resolution 955 of 1994, established the ICTR to prosecute those responsible for genocide and other transgressions of international humanitarian law committed in Rwanda and neighboring countries between January and December 1994. Since its inception to date, the ICTR has indicted 93 persons, and of these, 534 were charged with rape and other acts of sexual of violence as acts of genocide, or crimes against humanity or war crimes.

3 See e.g. Human Rights Watch, Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath, Lib. of Cong. Catalog Card No. 96-78471 (Sept. 24, 1996), available at http://www.hrw.org/reports/1996/Rwanda.htm. 4 See generally, Office of the ICTR Prosecutor, Best Practices Manual for the Investigation and Prosecution of Sexual Violence in Post-Conflict Regions: Lessons Learned from the Office of the Prosecutor for the International Criminal Tribunal for Rwanda 5–6 (Jan. 30, 2014), available at www.ictr.org [hereinafter ICTR Prosecutor, Best Practices Manual]. Jallow and Gender Justice 377

It can be argued that while its predecessor international tribunals, namely the post-World War II Nuremberg and Tokyo Tribunals, did very little in the prosecution of rape and other gender-based crimes notwithstanding that countless women and girls were raped during World War II,5 the ICTR (like its sister tribunal, the UN Tribunal for the Former Yugoslavia) may be credited for prosecuting rape and other acts of violence. Such credit should be given notwithstanding that the ICTR’s record in this area is not entirely perfect – a standard that is extremely difficult, if not impossible, for any institution, whether international or national, to achieve.6 The ICTR has attained its success mainly because of the indefatigable efforts by the Tribunal’s Prosecutors, including its longest serving prosecutor, Prosecutor Jallow – and indeed many women and men outside the Court room – scholars, activists and organizations, mainly human rights and gender-rights, who tirelessly advocated for serious steps and actions to be taken by the ICTR, to effectively investigate and prosecute these crimes.7 They also worked hard to assist in identifying ways of addressing longstanding challenges in the investigation and prosecution of these crimes. Such challenges not only confront international, but also national prosecutors and courts, but it seems that they afflict international, more than national courts, as the ICTR experience shows. Unlike other crimes, the ICTR experience, like that of other international courts, shows that the investigation and prosecution of rape and other acts of sexual violence must address multiple challenges. And, as will be shown below, Prosecutor Jallow may be commended for contributing to the identification and implementation of actions in response to such challenges. His contribution provides important lessons to other courts beyond the life of ICTR. Such specific challenges came to light very early in the Tribunal’s life. Firstly, there are what we may call the “institutional” challenges – emanating directly from factors that are peculiar to international tribunals. For instance, they are composed of prosecutors and investigators that come from diverse

5 The charges did not include rape and sexual violence, but gender-based crimes were included as evidence of atrocities prosecuted at the Nuremberg Tribunal, and the Tribunal implicitly recognized sexual violence as torture. See generally, Kelly D. Askin, “Prosecuting Wartime Rape and other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles,” 21 Berkeley J. Int’l L. 288, 300–03 (2002) [hereinafter Prosecuting Wartime Rape]. 6 See generally, id.; George William Mugwanya, “Recent Trends in International Criminal Law: Perspectives from the U.N. International Criminal Tribunal for Rwanda,” 6 Nw. U. J. Int’l Hum. Rts. 415, 417–30 (2008) (evaluating the Appeals Chamber’s reversal of a rape conviction in the Muhimana case). 7 See generally Askin, Prosecuting Wartime Rape, supra note 5, at 346–47. 378 Mugwanya backgrounds. They may not, until actions are specifically taken from within, necessarily possess the same skills and sensitivities requisite for investigating and prosecuting rape and other acts of sexual violence. This, notwithstanding their different backgrounds and diversity, including with respect to skills and experiences. As one analyst has argued, rape and sexual violence “are intensely personal, the injuries often less visible and the details provoke discomfort and aversion.”8 The investigation and prosecution of these crimes thus call for special skills and sensitivity to the victims. Victims, who play a crucial role in investigations and trials, may suffer re-traumatization, instead of experiencing some sort of healing when they speak out and contribute to the process of accountability. Moreover, the composition of the prosecution and investigation offices must ensure that women, and not only men, are deeply involved in the investigation and prosecution of these crimes – to ensure that crimes against women are not ignored, and that all victims of rape, female or male; boys or girls, are handled with utmost sensitivity. Unfortunately, as the early years of the ICTR particularly demonstrate, often investigators may lack the necessary skills and sensitivities to deal with the victims of these crimes. The ICTR’s early years also shows that there were very few senior women investigators in the ICTR’s prosecution office, particularly to effectively deal with crimes committed against women.9 The first ICTR Prosecutor, Justice Richard Goldstone has aptly described the challenges that afflicted the ICTR’s Prosecution office during this time:

I was amazed at the gender bias that emerged in our international office. One of the precipitating factors was the high number of investigators amongst the staff of the office. For the most part, they were police and army officers. They came from many countries on five different continents. In all, but one or two, there were no senior female investigators. Their culture was not such as to make them concerned about gender- related crime. It soon became apparent to me that it was essential to make

8 Id. at 346. 9 Overall, victims of these crimes prefer to deal with investigators and prosecutors of the same gender as them – but this should not be imposed on them. This is not to suggest that men should not be involved at all in the investigation of rape and sexual violence crimes – to the contrary, they are required, to ensure that they take a global approach when investigating international crimes of genocide, crimes against humanity and war crimes. This approach integrates rape and sexual violence crimes into the prosecution office’s overall strategy to investigate and prosecute genocide, crimes against humanity and war crimes. Men are also required, like female investigators and prosecutors, to deal with sexual crimes committed against all victims, whether male or female. Jallow and Gender Justice 379

them all aware that any form of gender discrimination or inappropriate language in the office would simply not be tolerated. I became convinced that if we did [not] have an appropriate gender policy in the Office of the Prosecutor, we would have little chance of getting it right outside of the office.10

It is very critical – as the above ICTR experience shows – that if rape and other gender-based crimes are to be effectively investigated and prosecuted, it is always a priority first “to put the Prosecutor’s house” in order. After all, as they say, charity begins at home. Furthermore, the shame and trauma suffered by victims of rape and sexual violence, seriously hinders them from revealing what happened to them and other victims during investigations, or even during trial. In other situations, there are also cultural and religious sensitivities that hinder victims from reporting to anyone, including their relatives, rape and sexual violence perpetrated against them. For instance, in the Rukundo case, in response to a defense challenge that a witness had made up the allegation, the witness, who was the victim of the charged sexual assault, confirmed that, “she never told anyone of the incident because, as a young girl, one could not report an attempted rape, especially to a close relative.”11 The under/non reporting of rape and sexual violence raises serious challenges for the Prosecutor in his/her investigation of the crimes due to the limited or lack of readily available evidence, whether from victims, or eyewitnesses as well as forensic or documentary evidence. The ICTR’s investigation and prosecution of the Akayesu case – the very first case on the ICTR docket, and the first case by an international court finding a person guilty of rape as genocide, demonstrates how these challenges may affect the efficient and expeditious prosecution of these crimes. Jean-Paul Akayesu, who was a bourgmestre (akin to mayor) of Taba commune in Rwanda, was initially charged with twelve counts of genocide, crimes against humanity and war crimes committed throughout Taba commune. He was not, however, charged with rape or any other gender-related crime, whether as crime against humanity, genocide or war crime. It was not until an advanced stage of the trial that two witnesses (H and J) revealed with greater detail that many Tutsi women had been raped at the communal bureau in the presence of, or with the knowledge and approval of Akayesu. The first witness testified about a gang

10 Richard J. Goldstone, Prosecuting Rape as a War Crime, 34 Case W. Res. J. Int’l L. 277, 280 (2002). 11 The Prosecutor v. Rukundo Case. No. ICTR 2001-70-T, Judgment of the Trial Chamber, ¶ 376 (Feb. 27, 2009). 380 Mugwanya rape of her six-year old daughter by three Interahamwe militias. The second one testified that she was raped, and that she had witnessed the rape of other women by Interahamwe militias. Following these testimonies, the Prosecutor sought leave from the Trial Chamber to amend the Indictment to add rape as a crime against humanity and as a war crime at this very advanced stage of the trial. While during investigation witnesses H and J stated that they had revealed rapes by Hutu assailants, in his oral application for leave to file the Indictment amendment to add rape, the Prosecutor explained that prior to their testimony “the information we received before [on rape] in our opinion, was not enough to link the accused to the acts of sexual violence.”12 In her submissions, while the Prosecutor underscored that the “issue of sexual violence [was] of great importance to the Office of the Prosecutor and we take this issue very, very seriously” she further explained why the Office could not come with sufficient evidence as to include rape in the initial Indictment, as follows:

Why we couldn’t come up with this information is unclear. Maybe because of shame that sometimes accompanies these acts prevented the women from testifying or declaring what occurred to them or also I’m ready to admit maybe sometimes we were not as sensitive as we should have been on the issue. But I have to say – and actually there is one issue I want to discuss right now – is that there has been a significant amount of attention on this issue from the outside organizations and specifically I am speaking of the amicus curiae. I would like to say to this Chamber right now and make it perfectly clear that the amicus curiae is not moti- vating us today . . . it can only be considered as a factor. And I say this as a

12 Akayesu, Case. No. ICTR 96-4-T, Trial Transcripts, pp. 6–7 (June 17, 1997). It has also been observed that during the testimony of these witnesses, the Judges of the Chamber in this case, who in particular included the only woman judge in the entire Tribunal at the time, Judge Pillay, were terribly appalled by the absence of rape charges in the Indictment. Judge Pillay astutely elicited evidence on gross sexual violence, and “her actions, combined with an amicus curiae brief filed by the Coalition for Women’s Human Rights in Conflict Situations, urging the Tribunal to request an amendment of the indictment to include sexual violence, resulted in a postponement of the trial, during which the Prosecutor amended the indictment to include charges of sexual violence against displaced women who sought refuge at the Taba commune.” Richard J. Goldstone & Estelle A. Dehon, Engendering Accountability: Gender Crimes Under International Criminal Law, 19 Eng. J. Pub. Pol’Y 121, 124 (2003). See also Chile Eboe-Osuji, “Navi Pillay in Her Age,” in Protecting Humanity: Essays in International Law and Policy in Honour of Navanethem Pillay 3 (Martinus Nijhoff Publishers, 2010). Jallow and Gender Justice 381

factor because what it does is it reminds us of the importance of the issue of sexual violence.13

The Prosecutor submitted that it was principally H’s testimony that shed light on the rape “and made the picture more and more clear for the Office of the Prosecutor”14 to do further investigation and analysis, and the outcome of these motivated the Office to seek the Indictment amendment.15 The Akayesu case thus demonstrates the special challenges to investigating and prosecuting rape and sexual violence – notably the shame associated with the crime that prevents victims from readily revealing what happened, and the special skills and sensitivity required by the Prosecutor’s staff to be able to effectively investigate the crimes, while at the same time ensuring that victims are not re-traumatized. In a nutshell, surmounting these challenges in an international criminal investigation and prosecution, as to succeed in having rape and sexual violence victims and witnesses ‘open up’ early to speak about these crimes, calls for greater skills when the investigators and attorneys are interacting and interviewing victims and witnesses. Success in this facilitates the collection of relevant evidence that is essential in supporting a successful prosecution and the defeat of impunity for rape and sexual crimes, while at the same time ensuring that victims of the crimes are not re-traumatized. Justice Jallow played a critical role in identifying and pursuing further actions in order to respond to these challenges, as shown below.

3 Comprehensive/Global/Integrated Investigation and Prosecution Strategies: Justice Jallow’s Contribution

Very early in his term, Justice Jallow appreciated the challenges of investigating rape and other acts of sexual violence. He also positively noted the criticisms against the Tribunal, and building on earlier foundations, and the seminal Akayesu precedent set out to identify and implement measures for the effective investigation and prosecution of these crimes. The following are noteworthy.

13 Akayesu, Trial Transcripts, supra note 12, at p. 7. 14 Id. at p. 8. 15 Id. at pp. 8–13. 382 Mugwanya

3.1 Capacity Building, Institutional Actions and Legacy As discussed earlier, the early years of the ICTR prior to Justice Jallow’s appointment were characterized by the absence of senior female staff within the ICTR Office of the Prosecutor, and as Justice Goldstone noted, a general lack of gender-sensitivity. Justice Jallow’s predecessors took action to remedy this, including the appointment of experienced female attorneys to serve as some of the senior managers within the Office and as legal advisers to the Prosecutor on gender crimes. These included such renowned gender experts as Patricia Sellers of the United States. Justice Jallow further enhanced this foundation by taking various actions that reinforced the skills and sensitivities of investigators, attorneys and all other persons interacting with victims and witnesses. He, among others, organized capacity-building seminars for staff, and invited experts in the field as resource persons. These included those that had researched and written on the widespread and systematic occurrence of rape and sexual violence in Rwanda, and had relentlessly called on the ICTR to take more effective investigative and prosecutorial actions to bring the perpetrators to justice. These included Professors Bainifer Nowrojee and Kelly Askin.16 At a Sexual Violence Workshop that he organized early in his tenure, Justice Jallow openly acknowledged the challenges associated with the investigation and prosecution of sexual offences, the “deficiencies in evidence gathering, charging practice and proof in the prosecution of sexual offences,”17 and the fact that the Office’s “record of successful prosecutions [had] less than the optimum necessary,”18 because by 2005, with only 5 persons so far convicted out of 25 charged with sexual offences “it [had] not reflected the widespread nature of sexual violence in those dark days of 1994.”19 He thus sought views and recommendations from within and outside the Office on “defining a prosecution strategy that integrates sexual offences appropriately into all the cases and to develop a Best Practices Manual for Investigation, Charging, and Prosecution of Sexual Offences.”20 He called upon participants in a Sexual Assault Workshop to share views on how “evidence on the OTP Rape Database [could] be more effectively

16 Justice Hassan Bubacar Jallow, Opening Statement at the OTP/EU Sexual Assault Workshop, (May 27–28, 2005 in Arusha, May 31, 2005 in Kigali) (transcript available at www.ictr.org) (transcript at 3) [hereinafter Opening Statement]. 17 Justice Jallow, Opening Statement at 1. 18 Id. at 2. 19 Id. 20 Id. at 1. Jallow and Gender Justice 383 utilized in the remaining cases where sexual violence [had] been charged,”21 and how “to formulate an actionable strategy for the investigation, charging and prosecution of sexual offences.”22 Justice Jallow underscored his firm commitment, together with all staff in the OTP, to a more effective prosecution of rape and sexual violence crimes as a matter of priority.23 The impact of this commitment may be discerned from the tangible and creative investigative and prosecutorial actions, discussed below, that the Prosecutor and his Office subsequently took to address the rather mixed results in the Office’s prosecution of rape and sexual violence. Of the ninety- three accused indicted by the Tribunal, fifty-two accused (which represents 55.9%) were charged with rape and other sexual violence crimes.24 Forty-three of the fifty-two cases proceeded to trial at the ICTR, while seven were referred to national jurisdictions pursuant to Rule 11bis of the ICTR Rules, and two others were referred to the Mechanism for International Criminal Tribunals (MICT) – a residual institution that has assumed responsibility for all ICTR’s remaining cases from July 1, 2012. Of those charged with rape, thirteen were convicted (although some convictions, such as in the Butare case, are still being challenged on appeal), and twenty-three were acquitted, with one appeal still pending; one accused died during trial, while charges in the remaining cases were dropped as part of plea negotiations or indictment amendments.25 Notwithstanding these mixed results in the number of successful prosecutions, Justice Jallow’s actions may be credited for the legacy or lessons they leave behind, that may guide national and international prosecutions of these heinous crimes. Besides the other tangible and creative prosecutorial and investigative actions discussed later on, another notable legacy is Justice Jallow’s establishment in June 2007, of a Sexual Violence Committee for the Review of the Prosecution of Sexual Violence. It was also charged with examining the Office’s successes as well as shortcomings and make appropriate recommendations on best practice to adopt in the investigation and prosecution of these crimes before the Tribunal. The Committee produced its first Manual in 2008.26 When it became apparent in the drafting of this Manual that the management of

21 Id. 22 Id. 23 Id. at 2. 24 See generally ICTR Prosecutor Best Practices Manual, supra note 4, at 5–6. 25 See Id. at 11, Annex B. 26 Titled The Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Situations of Armed Conflict. 384 Mugwanya victims and witnesses required very critical attention, in 2011, the Committee produced a second Manual, which was officially issued on January 30, 2014, and is publicly available on the ICTR’s website.27 This Manual summarizes the best practices and lessons that the ICTR Office of the Prosecutor has identified and concretized over the years of investigation and prosecution of rape and sexual violence, including the following: a. A comprehensive and integrated investigation and prosecution strategy that is underpinned by an understanding that rape and sexual violence constitute a principal weapon of conflict and therefore must be investigated across the board. Therefore, the investigation and prosecution of rape and sexual violence must form an integrated part of the Prosecutor’s overall strategy to investigate genocide, war crimes and crimes against humanity. b. Continuous capacity-building for investigators and prosecutors in methodologies in handling victims of rape and sexual violence, to ensure that full and accurate evidence is collected and adduced at trial, whilst also ensuring the re-traumatization of victims and witnesses is minimized. c. The handling of victims of rape and sexual violence requires planning to ensure that before any interview is undertaken, a rapport is established with the witness. This is much more important than the biologi- cal make-up of the person carrying out the interview. The rapport must cultivate an atmosphere of confidence where the witnesses feel at ease to express themselves. Moreover, the atmosphere must guard against re-traumatization. d. Ensuring that the rapport with the victims does not stop only in the field but continues even at the seat of the court. e. A deep understanding of the history, culture and language dimensions of the communities of the victims. The OTP’s experience has shown that victims of rape will convey the message that they were raped not necessarily directly. By doing so they are not concealing the truth but because of cultural and other sensitivities, they are not comfortable to call “a spade a spade”. Moreover, their approach is one way of minimizing re-traumatization. In the course of interviewing witnesses and leading them in court, at the ICTR it was discovered that in Rwanda, many concepts are used to convey the message that victims were raped. These

27 ICTR Prosecutor Best Practices Manual, supra note 4. Jallow and Gender Justice 385

include, “he married me/her”; “he took her/me by force”; “he took advantage of me/her,”28 etc. f. Providing the victims with the full picture of the court proceedings. Wit- nesses must know that they will be cross-examined for the veracity of their accounts. They must always be told that they must tell the truth. g. Ensuring that witnesses and victims are protected in court including by objecting to irrelevant questioning in cross-examination so that the court provides them full protection from this. h. Availing the substance of trained counselors in the field and at the court to victims. There is need for a purposive approach to charging and establishing culpability for rape and sexual violence. Experience has shown that those bearing the greatest responsibility for these crimes do not necessarily physically rape the victims but they are most responsible for these crimes. For instance, persons responsible for calling upon wholesale destruction of ethnic and other protected groups are not only responsible for killings, but for various crimes that are a natural and foreseeable consequence of such a project. Moreover, persons holding superior and command positions are not responsible only for direct involvement in the crimes but also pursuant to superior or command responsibility for failing to intervene in the crimes of their subordinates.

These best practices may provide inspiration to national and international courts. Already, the ICC has drawn some inspiration from them.29

3.2 Prosecutorial/Jurisprudential Contribution During his tenure, the Prosecutor has taken prosecutorial actions that were critical in ensuring accountability for gender-based crimes and the protection, security and welfare of victims, also contributing to the development of jurisprudence by the ICTR in the arena of rape and sexual violence prosecutions in international law. In several cases, both at trial and on appeal, the Prosecutor advanced arguments, which, without doubt, assisted in shaping the ICTR’s jurisprudence. A few examples can be used to illustrate the point.

28 See e.g. Prosecutor v. Muhimana, Case. No. ICTR 95-1B-T, Transcripts of Trial, Witness AQ, 15, lines 28–32 (April 15, 2004). 29 DRAFT: Policy Paper on Sexual and Gender Based Crimes, ICC Prosecutor, at ¶ 8 (Feb. 2014), available at http://www.icc-cpi.int/iccdocs/otp/otp-draft-policy-paper-february2014- eng.pdf. 386 Mugwanya

3.2.1 Gacumbitsi – Non-Consent as an Element of the Crime of Rape The Akayesu Judgement, issued prior to Justice Jallow’s assumption of office as ICTR Prosecutor, created a vital precedent in its definition of rape (and sexual violence) as, “[a] physical invasion of a sexual nature committed on a person under circumstances which are coercive. Sexual violence, which includes rape, is considered to be an act of a sexual nature which is committed on a person under circumstances which are coercive.”30 As can be discerned from the itali- cized sections, if coercive circumstances exist, and are proven in any charge of rape and other acts of sexual violence, any physical invasion of a sexual nature against another person, would be non-consensual, and the perpetrator would be liable for prosecution for rape or sexual assault. Given the coercive circumstances (characterized by armed conflicts and widespread or systematic acts of violence targeting civilians) in which crimes falling within the jurisdiction of international courts, including the ICTR, are committed, to what extent could this exempt the Prosecutor from having to prove, or at a minimum, alleviate the Prosecutor’s burden of proving non-consent in the prosecution of every individual charged with perpetrating physical violence against civilians in the midst of on-going violence targeting civilians on ethnic or other discriminatory grounds? To what extent could the Akayesu precedent provide a basis for arguing for an affirmative response to this issue? In July 2004, the Prosecutor chose to litigate these matters before the Appeals Chamber in the Gacumbitsi case. The office cited an exceptional and restricted avenue for appeal, namely, the development of jurisprudence.31 The Prosecutor undertook to litigate the issue with the view of paving the way for more effective prosecution of rape and sexual violence crimes committed in Rwanda during genocidal and widespread and systematic violence situation,

30 Akayesu, Case No. ICTR 96-4-T, Judgment of the Trial Chamber, ¶ 598 (Sept. 2, 1998) (emphasis added). 31 Article 24 of the ICTR Statute specifically allows appeals where errors of law invalidating the judgment, or errors of fact occasioning a miscarriage of justice are alleged. Gacumbitsi had been convicted by the Trial Chamber of a number of rapes, and even those for which he had been acquitted were not as a result of any error relating to the operation of the non-consent element. Therefore, for the Prosecutor’s appeal to be admissible, he had to make an argument under the exceptional avenue for bringing appeals before the Appeals Chamber, namely, that the issue was of general significance. See The Prosecutor v. Akayesu Case No. ICTR 96-4-A, Judgment of the Appeal Chamber, ¶ 19 (June 1, 2001), http://www .refworld.org/docid/4084f42f4.html. The Appeals Chamber accepted the Prosecutor’s plea in this regard. See Gacumbitsi v. The Prosecutor, Case No. ICTR 2001-64-A, Judgment of the Appeals Chamber, ¶ 150 (Jul. 7, 2006), https://www1.umn.edu/humanrts/instree/ ICTR/GACUMBITSI_ICTR-01-64/GACUMBITSI_ICTR-2001-64-A_appeals.pdf. Jallow and Gender Justice 387 targeting civilians of Tutsi ethnicity. The Prosecutor hoped that a clarification of the law would afford justice to the victims of such crimes. During peace- times, the above issue would not readily arise, and the courts at the domestic level closely hear and assess evidence regarding non-consent.32 In the Prosecutor’s view, the situation was entirely different with respect to rape and sexual violence that falls within the jurisdiction of international courts, including the ICTR. In seeking clarification of the law, the Prosecutor, thus argued because “rape only comes within the Tribunal’s jurisdiction when it occurs in the context of genocide, armed conflict, or a widespread or systematic attack against a civilian population – circumstances in which genuine consent is impossible,”33 non-consent of the victim and the perpetrator’s knowledge thereof should not be considered elements of the offence that must be proved by the Prosecutor.34 In his view, “[s]ubject to the limitations of Rule 96 of the Rules, consent should be considered an affirmative defense.”35 In other words, given the manifestly coercive circumstances in which the rape falling within the Tribunal’s jurisdiction was committed, the Prosecutor submitted that the burden should be cast on the accused because the absence of consent should, in the circumstances just mentioned, be presumed. While the Appeals Chamber maintained that non-consent and the perpetrator’s knowledge thereof were and at all times remained elements of the crime of rape that the Prosecutor bore the burden of proof,36 the further elucidation to the jurisprudence that the Appeals Chamber provided in disposing of the Prosecutor’s appeal are noteworthy. The Judgment clarified the manner in which non-consent is to be proven; the burdens of proof borne by both parties, including the accused; the irrelevance, as a legal matter, of the words or

32 It is noteworthy that in addressing non-consent as an element of the crime of rape, case- law from some national systems, however, tends to unnecessarily focus on the perpetrator’s use of force, or violence, yet non-consent may exist although no physical force was used. See generally Lillian Tibatemwa-Ekirikubinza, Criminal Law in Uganda: Sexual Assaults and Offences Against Morality 7 (Kampala: Fountain Publishers ed. 2005); Steven L. Emanuel, Criminal Law 266–70 (1992–1993 ed.). The Akayesu precedent, which focuses on the existence of any coercive circumstances, represents a better approach; it moves away from “technicalities” or “formalities,” such as “physical force,” in its determination as to whether or not the sexual act was consensual, thus more effectively ensuring that non- consensual invasions and violations of victims are punished. 33 Gacumbitsi, Case No. ICTR 2001-64-A, Judgment of the Appeals Chamber, at ¶ 148. 34 Id. at ¶ 147. 35 Id. at ¶ 147. 36 Id. at ¶¶ 151–54. 388 Mugwanya conduct of the victim (e.g. resistance) and the victim’s relationship to the perpetrator; and, in certain circumstances, the inadmissibility, and/or the absence or limited probative value, of an accused’s evidence that the victim consented. In all, by seeking the clarification, the Prosecutor, through this Judgment, succeeded in identifying avenues critical to the more effective prosecution of rape in international law. Firstly, the Judgment addressed, in practical terms, the relevance of the existence of coercive circumstances (such as in the form of armed conflict, and genocidal or widespread or systematic attacks against civilians) to the burden borne by the Prosecutor in proving non-consent. A Trial Chamber will have to consider these circumstances, like all other relevant and admissible evidence before it, in determining whether non-consent is proven. In fact, and importantly, the Appeals Chamber confirmed that it is open to a Trial Chamber to freely “infer non-consent from the background circumstances, such as ongoing genocide campaign or the detention of the victim.”37 In other words, it is within the discretion of a Trial Chamber to find that the existence of armed conflict, and genocidal or widespread or systematic attacks against civilians at the time of the alleged rape, constitute sufficient evidence of the absence of non-consent on the part of the victim of rape. Moreover, the same background evidence may suffice for the Prosecutor to meet his burden of proof that the accused was aware, or had reason to be aware, of the victim’s non-consent.38 Furthermore, as a legal matter, “it is not necessary . . . for the Prosecution to introduce evidence concerning the word or conduct of the victim or the victim’s relationship to the perpetrator. Nor need it introduce evidence of force.”39 This elucidation constitutes a significant blow to unjustified emphasis by some national courts, on evidence of physical force by the perpetrator, and the victim’s resistance, to prove non-consent and the perpetrator’s knowledge thereof.40 Finally, while the accused may introduce evidence that the victim specifically consented, such evidence may be inadmissible under circumstances spelt out in Rule 96, if the victim (a) has been subjected to or threatened with or had reason to fear violence, duress, detention or psychological oppression, or (b) reasonably believed that if the victim did not submit, another might be

37 Id. at ¶ 155. 38 Id. at ¶ 157. 39 Id. at ¶ 155. 40 See e.g., Emanuel, supra note 32, at 266–70; Tibatemwa-Ekirikubinza, supra note 32, at 7. Jallow and Gender Justice 389 so subjected, threatened or put in fear.41 Moreover, even if a Trial Chamber admits such evidence, the Gacumbitsi Judgment affirms that the Chamber “is free to disregard it if it concludes that under the circumstances, the consent given was not genuinely voluntary.”42 In all, the Prosecutor’s choice to litigate the matter bore positive fruits: the Judgment provides critical elucidations that may assist in the effective prosecution of rape in international criminal law. Indeed, the Gacumbitsi precedent was applied in subsequent cases at the ICTR, where it guided the Judges’ approach to the proof of non-consent, especially in cases where defendants contended that the victims consented despite the on-going acts of violence at the time of the alleged sexual violence. In the Rukundo case, a Trial Chamber convicted Rukundo for committing genocide by causing serious mental harm to witness CCH (hereinafter “the victim”) when he sexually assaulted her in May 1994 at the Saint Leon Minor Seminary. At trial, the victim testified that Rukundo came to the seminary, where many Tutsi victims had taken refuge from attacks, but were regularly abducted from there and killed.43 He was driving a small car, dressed in a military uniform, carrying a rifle and was accompanied by soldiers. The victim introduced herself to Rukundo, and fearing for her life, she implored Rukundo to hide her. Rukundo responded that he could not, and that her entire family had to be killed because her relative was an Inyenzi44 (which meant “enemy”). This conversation took place near Rukundo’s vehicle.45 Nevertheless, when Rukundo removed a carton and plastic bag, the victim assisted him in carrying some items to a small room at the Seminary, in the hope that he would change his mind and hide her.46 While in the room, Rukundo locked the door, placed his pistol on the table next to the bed, gave a bottle of beer to the victim, and began to caress her.47 He then forced himself upon the victim, and tried to rape her. He forced her onto the bed, opened the zipper on his trousers, and tried to force her to remove her skirt, which she resisted. He then forcefully pulled the skirt himself, lay on top of her, and tried to spread her legs and have sexual intercourse. The victim resisted, and struggled to free herself. Rukundo gave up penetrating the victim, but continued to lie on top

41 Gacumbitsi, Case No. ICTR 2001-64-A, Judgment of the Appeals Chamber, at ¶ 156. 42 Id. at ¶ 156. 43 Rukundo, Case. No. ICTR 2001-70-T, Judgment of the Trial Chamber, at ¶ 384. 44 Id. at ¶¶ 365, 373. 45 Id. at ¶ 365. 46 Id. at ¶¶ 366, 373. 47 Id. at ¶ 366. 390 Mugwanya of her, squeezed her tightly in his arms while rubbing himself against her, until he ejaculated.48 Rukundo then let go of her, took a bottle of beer, sipped it, and gave to the victim, who also sipped it, and they left the room. Rukundo said goodbye to the victim.49 He was later charged with sexual assault as an act of genocide that caused serious mental harm to the victim.50 In his defense, Rukundo denied meeting and sexually assaulting the victim.51 He further contended that in any event, the victim’s testimony was improbable, besides being contradicted by other witnesses, and even if it was believed, the elements of the alleged crime were not met.52 Regarding the element of non- consent, Rukundo argued that from the victim’s testimony, Rukundo never used violence or threats in an attempt to have sex with her. In fact, continued Rukundo, from the victim’s testimony,

[A]fter [. . .] Rukundo told her that her uncle and members of the family must be killed, she remained close by the vehicle and helped him carry his belongings into a room. Once in the room, [. . .] Rukundo opened a bottle of beer which he handed to her and they began to drink it together. [. . . .]. After drinking some beer, [. . .] Rukundo went to the door which he locked with a key. He came back to her and put the bottle on the table and began to cajole her telling her that he could not help her as she had asked him because the situation outside was very difficult [. . .]. After locking

48 Id. at ¶¶ 366, 373. 49 Id. at ¶ 366. 50 Under Article 2 of the ICTR Statute, a person is culpable for genocide if he or she commits any of the acts enumerated in the article, including “causing serious bodily or mental harm to members of the group” or “imposing measures intended to prevent births within the group” with intent to destroy in whole or in part, a national, ethnical, racial or religious group as such. The ICTR was the first international tribunal to find, in the Akayesu case, that rape and sexual violence, if committed with intent to destroy a protected group, can constitute genocide because they cause serious bodily or mental harm to the victim. Akayesu, Case No. ICTR 96-4-T, Judgment of the Trial Chamber, at ¶ 731. They also can prevent births within the group because persons raped may “refuses to procreate, in the same way a group can be led, through threats and trauma, not to procreate.” Id. at ¶ 508. Moreover, given the cultural specificities of many societies, including patriarchy, trans- gressors may use rape and sexual violence as a weapon to impregnate women and girls of the targeted group with a view to passing their ethnicity, thereby destroying the victim group. Id. at ¶ 507. 51 Rukundo, Case. No. ICTR 2001-70-T, Judgment of the Trial Chamber, at ¶¶ 368–369. 52 Rukundo, Case. No. ICTR 2001-70-T, Judgment of the Trial Chamber, at ¶ 375; Rukundo, Case No. ICTR 2001-70-T, Closing Brief, at ¶¶ 1017, 1058. Jallow and Gender Justice 391

the door, [. . .] Rukundo laid her on the bed and tried to lift up her skirt, which she refused by lowering her dress again. When she thus demonstrated her refusal, [. . .] Rukundo immediately stopped.53

The Trial Chamber rejected Rukundo’s defense above. It found that it had been proven that the victim did not consent to the sexual act. In reaching this conclusion, the Chamber not only closely examined the victim’s explanation for her conduct and that of the accused – e.g., why she drank beer with Rukundo prior to and after the alleged sexual violence54 – but also the totality of the circumstances during which Rukundo perpetrated the sexual assault on the victim that rendered any meaningful consent of the victim to the sexual act impossible. This was consistent with the Gacumbitsi and Akayesu precedents.55 In line with the former, the Chamber admitted evidence that the defense claimed established that the victim consented, but concluded, again in keeping with the same precedent that the totality of the coercive circumstances, summarized below, vitiated the victim’s ability to consent to the sexual assault in question:

The Chamber notes that [the victim] testified that the situation surrounding the Tutsi refugees at the St. Leon’s Minor Seminary from April until June 1994 was dangerous. Other witnesses testified that many Tutsi refugees were regularly abducted from the St. Leon’s Minor Seminary and killed. [The victim] further testified that, fearing for her life, she implored the Accused to hide her. Rukundo compounded her fear by indicating that she and her family must be killed because her relative was an Inyenzi. At all material times, Rukundo was armed with a gun. After [the victim] assisted Rukundo to bring some of his belongings to a

53 Rukundo, Case No. ICTR 2001-70-T, Closing Brief, at ¶¶ 1024–27. 54 During trial, the defense cross-examined the victim, suggesting that she consented since Rukundo did not use any threat or force to convince her to have sexual intercourse with him. The Trial Chamber credited her following explanation, besides considering the totality of the surrounding circumstances that rendered any meaningful consent on her part impossible: “[you] don’t need to use a gun to threaten somebody. He definitely did not point his gun at me. But remember that he’s the one who pushed me to the bed, and he took into account the weaknesses – the weak point from which I was. That was also a disguised threat.” Rukundo, Case. No. ICTR 2001-70-T, Judgment of the Trial Chamber, at ¶ 383. Moreover, the Trial Chamber considered the victim’s further testimony that she drank a beer with the accused to acknowledge his position of authority and that she ultimately thought he was taking advantage of his position. Id. at ¶ 383. 55 Id. at ¶¶ 382–86. 392 Mugwanya

small room, he locked her inside alone with him; and, placing a pistol on a nearby table, he proceeded to force himself upon her, while she struggled to free herself from his control. The Chamber finds that these events, taken together, clearly constitute coercive circumstances.56

The Gacumbitsi precedent, which the Rukundo Trial Chamber followed,57 is laudable. It transcends a “mechanistic approach,” that would stop at and/or assess in isolation what victims did in an attempt to save their lives – which conduct strictly speaking does not constitute genuine consent. The precedent also looks beyond the conduct of the accused, which if viewed in isolation from the totality of the evidence, or out of context, may suggest that the accused did not coerce the victim into submission. Instead, the precedent, while allowing the admission of evidence on the conduct of the victim and the accused, takes account of the totality of all the surrounding circumstances that clearly render any meaningful consent by the victim impossible.

3.2.2 Karemera – Liability for Rape and Sexual Violence Pursuant to JCE III and Article 6(3) Liability To find any accused culpable for any crime, the ICTR Statute, like that of the ICTY, provides for two broad categories of liability – namely, direct responsibility under Article 6(1), and superior responsibility pursuant to Article 6(3). The former covers those “who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution” of the crimes. Article 6(3) on the other hand establishes culpability for superiors for crimes committed by their subordinates if the accused knew or had reason to know that the subordinate was about to commit such acts or had done so and

56 Id. at ¶ 384. 57 On appeal, Rukundo challenged his conviction on multiple bases notably that, the Trial Chamber erred in finding that his actions amounted to the commission of genocide by causing serious mental harm. He claimed the victim did not suffer long-term psychological trauma, that her fear of death was not based on his conduct since the victim willingly followed him to his room and he did not use a gun to threaten her. He also asserted that that the Trial Chamber erred in finding that he intentionally inflicted serious harm to the victim with genocidal intent – namely, to destroy the Tutsi group to which the victim belonged. See Rukundo, Case. No. ICTR 2001-70-A, Judgment of the Appeals Chamber, at ¶¶ 229–32. Although the Appeals Chamber, by majority, allowed Rukundo’s appeal on the basis that the evidence was insufficient to sustain a finding that Rukundo perpetrated the sexual violence with genocidal intent, the Appeals Chamber upheld the Trial Chamber’s finding that the sexual violence was highly degrading and non-consensual. See id. at ¶¶ 236–37. Jallow and Gender Justice 393 the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. Given that the Tribunal, like all other international criminal courts, was not in a position to prosecute all the perpetrators of the crimes, because of their huge number, it focused on those who bore the greatest responsibility. In this regard, considerable emphasis was placed on those who organized and planned the crimes, and in particular, those who held high governmental or military positions and abused those positions to promote the atrocities. Normally, such persons may not directly go to the crime scenes and physically perpetrate crimes, such as rapes. They normally operate concertedly behind the scenes, and rarely openly issue orders and instructions to the direct or physical perpetrators of the crimes. In essence, they control atrocity crimes from behind the scenes, and use the direct and physical perpetrators of the crimes as their instruments. When these persons operate through organized structures of power the direct and physical perpetrators of the crimes, are merely, to use the words of Judge Schomburg, “[a] cog in the wheel that can be replaced immediately. Since the identity of the direct and physical perpetrator is irrelevant, the control and, consequently, the main responsibility for the crimes committed shifts to the persons occupying a leading position in such an organized structure of power.”58 Although such person may be far physically removed from the direct perpetration of the crimes, they are as culpable, or even more criminally responsible, than the direct or physical perpetrators of the crimes, who, especially when crimes are committed through an organized structure of power, are mere “cogs in the wheel” of the crime machine.59 Judge Schomburg, borrowing from German criminal law, made a case for recognizing co-perpetration as a form of “commission”. He argued “within the context of international macro criminality, the degree of criminal responsibility frequently grows as distance from the actual act increases.”60 In a nutshell, crafting a prosecution strategy and obtaining the relevant evidence against such persons who are most responsible for atrocity crimes, such as those that were committed in Rwanda, is extremely important. Yet, it remains a very complicated task – and rape prosecutions are no exception. The issue, however, is how can such persons’ responsibility be crafted and legally be established on evidence and on the law, without violating the

58 Gacumbitsi v. Prosecutor, Case No. ICTR 2001-64-A, Judgment of the Appeals Chamber, Separate Opinion of Judge Schomburg on the Criminal Responsibility of the Appellant for Committing Genocide, ¶ 20 (Jul. 7, 2006). 59 Id. 60 Id. at ¶ 3. 394 Mugwanya

principle of individual criminal responsibility? The challenge is to stay clear of guilt by mere association. This is one of the issues that the Prosecutors, including Justice Jallow, had to grapple with, in order to ensure that those who bear the greatest responsibility were brought to justice in full respect of the principle of individual criminal responsibility. From its first Judgments on rape, including Akayesu, until about mid-2000 when Justice Jallow assumed office, generally, the Office of the Prosecutor succeeded in securing the conviction for rape, either as acts of genocide, crimes against humanity, or war crimes, by and large, on the basis of their personal/ physical commission of the rapes,61 or their ordering or instigation of the rapes.62 Additionally, they were convicted for their tacit encouragement of the crime, mainly by their presence at/in the vicinity of the rapes, and their knowledge that crimes were being perpetrated, and they refused to intervene.63 But those most responsible for atrocity crimes, as those that occurred in Rwanda, especially those who hold high governmental or military positions, normally do not take a machete or gun to physically perpetrate the crimes; in fact they are normally physically far removed from the crime scene or the physical perpetrators of the crimes. Establishing criminal culpability for these kinds of persons remained a challenge for quite some time. The various prosecutors, including Justice Jallow, had to be creative in their construction and application of the law to such complex factual situations as to ensure that those most responsible for atrocity crimes, including rape, did not escape justice. The Karemera-Ngirumpatse case constitutes an important example. In that case, which is currently on appeal, the Prosecutor, building on the foundation laid by his predecessors, for the first time in the ICTR’s life charged the defendants for rape as genocide and crimes against humanity, pursuant to the third category of joint criminal enterprise (“JCE III”) and superior responsibility.64 JCE liability, which the Appeals Chamber has found to constitute a form of “commission,” and to have three different categories, generally

61 See e.g., The Prosecutor v. Musema, Case No. ICTR 96-13-A, Judgment and Sentence of the Trial Chamber I, ¶¶ 966–67. 62 See e.g., The Prosecutor v. Gacumbitsi, Case No. ICTR 2001-64-T, Judgment of the Trial III, ¶¶ 292, 324–25, 327–28, 330, 352; Akayesu, Case No. ICTR 96-4-T, Judgment of the Trial Chamber, at ¶¶ 452, 692, 694. 63 See e.g., Akeyesu, Case No. ICTR 96-4-T, Judgment of the Trial Chamber, at ¶¶ 452, 460, 693–94. 64 The Prosecutor v. Karemera, Ngirumpatse, & Nzirorera, Case No. ICTR 98-44-I, Amended Indictment, Counts 3, 5; ¶ 4 (Aug. 24, 2005); Karemera, Ngirumpatse, & Nzirorera, Case No. ICTR 98-44-T, Judgment of the Trial Chamber III, at ¶¶ 1465–90, 1504–71, 1665–71, 1673–84 (Feb. 2, 2012). Jallow and Gender Justice 395 seeks to hold accountable persons acting in concert or in pursuance of a common criminal design to perpetrate crimes within the Tribunal’s jurisdiction. JCE III, or the “extended” JCE category concerns cases in which the charged crime, “while outside of the common purpose, is nevertheless a natural and foreseeable consequence of executing that common purpose.”65 Although the two accused directly engaged in some of the charged crimes – for instance by participating in the distribution of weapons to killers, ordering or instigating the crimes – overall, they did not physically perpetrate them. Indeed, for rape and sexual violence, none of them personally raped, or planned, ordered, instigated or aided and abetted them.66 This obviously created a challenge to holding them culpable for these crimes. Yet, the evidence marshaled by the Prosecutor and accepted by the Trial Chamber (but which the defendants are challenging on appeal) revealed that the accused were very powerful persons, wielding authority over many of the perpetrators of the genocide, in particular the Interahamwe militias.67

65 Gacumbitsi, Case No. ICTR 2001-64-A, Judgment of the Appeals Chamber, at ¶ 158. For the ICTY, see Prosecutor v. Tadic Case No. IT-94-1-A, Judgment of the Appeals Chamber, ¶ 204 (Int’l Crim. Trib. for the Former Yugoslavia Jul. 15, 1999); Prosecutor v. Kvočka, Radić, Zigić, & Prcać, Case No. IT-98-30/1-A, Judgment of the Appeals Chamber, ¶ 83 (Int’l Crim. Trib. for the Former Yugoslavia Feb. 28, 2005). The first or “basic” category, deals with cases in which all “co-perpetrators, acting pursuant to a common purpose, possess the same criminal intention” to commit the charged crimes. Gacumbitsi, Case No. ICTR 2001-64-A, Judgment of the Appeals Chamber, at ¶ 158. An example is a plan by a group of individuals to kill victims, say seeking refuge in a location or to ethnically cleanse an area, where, although each of the participants in the JCE may carry out a different role, each of them had the intent to murder, or to ethnically cleanse an area. The second JCE form, also called the “systemic” category, is a variant of the first/basic form, and is characterized by the existence of an organized system of ill-treatment, as exemplified by “concentration camps” in which prisoners are mistreated or killed pursuant to a JCE. The Prosecutor v. Ntakirutimana & Ntakirutimana, Case Nos. ICTR 96-10-A & ICTR 96-17-A, Judgment of the Appeals Chamber, ¶ 464 (Dec. 13, 2004); Tadic, Case No. IT-94-1-A, Judgment of the Appeals Chamber, at ¶¶ 202–03. To hold an accused culpable under JCE II, it must be proven that he or she possessed personal knowledge of the organized system and an intent to further the criminal purpose of that system. Kvočka, et al., Case No. IT-98-30/1-A, Judgment of the Appeals Chamber, ¶ 82. 66 Karemera, Ngirumpatse, & Nzirorera, Case No. ICTR 98-44-T, Judgment of the Trial Chamber III, at ¶ 1669. 67 During the 1994 events, Ngirumpatse and Karemera were respectively President (or Chairperson) and Vice President (or Vice-Chairperson) of the ruling party, the MRND (Mouvement Révolutionaire National pour le Développement, later le Mouvement Républicain National pour la Démocratie et le Développement), which for a long time 396 Mugwanya

Moreover, the evidence (again accepted by the Chamber but currently being challenged by the defendants on appeal) revealed concerted action between the accused and other persons, to target the destruction of Tutsis throughout Rwanda, using other individuals, including those under their authority, especially the Interahamwe.68 The evidence, as accepted by the Trial Chamber revealed that these very persons perpetrated rapes in the course of violent attacks targeting Tutsis in diverse locations in Rwanda.69 In the amended Indictment thus, the Prosecutor firstly charged the defendants for engaging, together with other persons, in a common criminal enterprise whose purpose was the destruction of Tutsis. Therefore, the Prosecutor alleged that specific crimes directly fell within the common purpose of the JCE – and were therefore charged under JCE I. With respect to rape and sexual violence, the prosecution sought to establish defendants’ culpability on the basis of JCE III liability. It was alleged that, while rape and sexual violence against Tutsis that were perpetrated mainly by Interahamwe in diverse locations of Rwanda were not within the object of the JCE, they were nevertheless “a natural and foreseeable consequence of the execution of the object of the joint criminal enterprise”70 in which the defendants participated and contributed, and whose purpose was the destruction of the Tutsis in Rwanda.71 The Trial Chamber agreed. It found that, although the rapes and sexual violence, which were executed systematically and on a large scale by the same individuals who were attacking Tutsis (such as Interahamwe and other militias), were not part of the common purpose of the JCE to destroy the Tutsi

dominated, including as a single-party, Rwanda’s political terrain. See Karemera, Ngirumpatse, & Nzirorera, Case No. ICTR 98-44-T, Judgment of the Trial Chamber III, at ¶¶ 1–11. The two defendants were the leaders of the MRND’s Executive Bureau, which the Trial Chamber described as the ultimate authority over the Interahamwe militia. Id. at ¶ 1516. On 25 May 1994, Karemera became the Minister of the Interior and Communal Development for the Interim Government. Id. at ¶ 4. Ngirumpatse was also the international envoy of the Interim Government until it fled in July 1994. Id. at ¶ 1483. For the Trial Chamber’s detailed findings on the defendants’ authority and effective control over the Interahamwe, and their knowledge of the Interahamwe’s perpetration of the crimes, as well as their failure to prevent or punish these crimes. See generally id. at ¶¶ 1516–42; 1546–71. 68 See generally id. at ¶¶ 1450–56. 69 See generally id. at ¶¶ 1338–424. 70 Karemera, Ngirumpatse, & Nzirorera, Case No. ICTR 98-44-I, Amended Indictment, at ¶ 7 (Apr. 3, 2008). 71 Id. at ¶¶ 5–8; 14–16. Jallow and Gender Justice 397 population in Rwanda,72 the accused bore “extended JCE liability for rapes and sexual assaults that occurred after April 11, 1994.”73 The accused were thus convicted for rape and sexual assaults perpetrated mainly by the Interahamwe and militias as genocide and crimes against humanity.74 The Chamber reasoned that, during a campaign to destroy, in whole or in part, a national, ethnic, racial, or religious group, as the accused engaged in from April 11, 1994, “a natural and foreseeable consequence of that campaign will be that soldiers and militias who participate in the destruction will resort to rapes and sexual assaults unless restricted by their superiors.”75 The Chamber found that, although the accused were aware that widespread rapes and sexual assaults on Tutsi women and girls were a possible consequence of the JCE to pursue the destruction of the Tutsi population in Rwanda, they willingly took the risk of facilitating further rapes and sexual assault on Tutsi women and girls because the accused continued to participate in the JCE to destroy the Tutsi population in Rwanda despite the widespread occurrence of rapes and sexual assaults on Tutsi women and girls in diverse locations of Rwanda.76 Secondly, the Prosecutor charged and sought to ground the defendants’ liability for crimes, including rapes committed by the defendants’ subordinates, in particular the Interahamwe, on the basis of superior responsibility under Article 6(3) of the Statute. The Trial Chamber agreed with the Prosecutor that the defendants were superiors and exercised effective control over the Interahamwe during the material time, and that although they had knowledge that Interahamwe were perpetrating the rapes, they took no necessary actions to prevent or punish those crimes.77 The Chamber thus held that the defendants bore criminal responsibility for these crimes as superiors pursuant to Article 6(3).78 Because the Chamber had found them responsible for the crimes under Article 6(1), it concluded that their responsibility under Article 6(3) was an aggravating factor in sentencing.79 The defendants were sentenced

72 Karemera, Ngirumpatse, & Nzirorera, Case No. ICTR 98-44-T, Judgment of the Trial Chamber III, at ¶¶ 1665–69. 73 Id. at ¶¶ 1670. See also ¶¶ 1679–82. 74 Karemera, Ngirumpatse, & Nzirorera, Case No. ICTR 98-44-T, Judgment of the Trial Chamber III, at ¶¶ 1490, 1670, 1682. 75 Id. at ¶ 1476. 76 Id. at ¶¶ 1483, 1486. 77 See e.g., id. at ¶¶ 1516–42; 1546–71. 78 See id. at ¶¶ 1516–42; 1546–71. 79 See id. at ¶¶ 1747 (regarding rape and sexual violence). For the Chamber’s elaboration and application of the same principle for other crimes, see generally paragraphs 1502, 1618, 1624, 1654 and 1659. 398 Mugwanya to life imprisonment – a sentence that, as of writing, they have challenged before the Appeals Chamber. Notwithstanding that the Defendants are currently challenging their conviction for the rapes on multiple fronts (and the author cannot express his views on the merits of the appeals), the above discussion demonstrates the efforts by the Prosecutor and his predecessors to craft and implement a creative charging approach. Although this could open the prosecutions to criticism, in the end, it will be a question for determination by the judges.

3.2.3 The Scope of the Rape and Sexual Violence Crimes: Human Dignity – Protected Even after the Death of the Victim; AND Violent Sexual Acts Short of Penetration Building on the foundations laid by his predecessors and the Akayesu precedent, Justice Jallow and his Office advocated before Trial Chambers and the Appeals Chamber for creative approaches to the construction of sexual violence crimes. The effort was to ensure that, despite a challenging early start, various categories of sexual abuses were punished and that the sexual integrity of women and men would be afforded utmost protection. Two final examples are noteworthy – the Bagosora and Rukundo precedents. In the Bagosora case, the Prosecutor and his Office advocated before the Appeals Chamber for punishment as an inhumane act the defilement of Prime Minister Agathe Uwilingiyimana’s corpse. In that case, the Indictment, which was drafted by Justice Jallow’s predecessors, properly charged the crime. In paragraph 6.9 of the Indictment, it was alleged that, “Prime Minister Agathe Uwilingiyimana was tracked down, arrested, sexually assaulted and killed by Rwandan Army personnel, more specifically members of the Presidential Guard, the Para-Commando Battalion and the Reconnaissance Battalion.” The Trial Chamber found Bagosora criminally responsible as a superior under Article 6(3) for “other inhumane acts” as crimes against humanity based on the sexual assault committed by his subordinates against the Prime Minister’s corpse.80 Specifically, the Trial Chamber found that on the morning of 7 April 1994, the Prime Minister was murdered by Bagosora’s subordinates at her residence and her body was seen lying openly in the compound with a bottle inserted into her vagina.81 On appeal, Bagosora sought to impugn his conviction arguing that the Trial Chamber erred in convicting him of the sexual assault of the Prime Minister

80 The Prosecutor v. Bagosora et al., Case No. ICTR 94-41-T, Judgment of the Trial Chamber, ¶¶ 2224, 2258 (Dec. 18, 2008). 81 Id. at ¶¶ 701–05, 717, 2219, 2224. Jallow and Gender Justice 399 based on actions taken after her death. He contended that sexual assault can be perpetrated only against a living person.82 He asserted that the prohibition of sexual assault is meant to protect sexual integrity of a person and there is no sexual integrity after death.83 The Prosecutor made a compelling response, which was accepted by the Appeals Chamber, notwithstanding that the Chamber ultimately acquitted Bagosora on the basis that the pleading was deficient – a finding that is contentious, as shown immediately below. In his submissions before the Appeals Chamber, the Prosecutor and his team argued that the Trial Chamber did not err in convicting Bagosora based on his subordinates’ desecration of the Prime Minister’s corpse, because the category of “other inhumane acts” is a residual category of crimes against humanity and allows courts flexibility in assessing the alleged conduct before them on a case- by-case basis.84 The Appeals Chamber accepted the Prosecutor’s submissions, underscoring that, “the desecration of Prime Minister Uwingiliyimana’s corpse constituted a profound assault on human dignity meriting unreserved condemnation under international law. Such crimes strike at the core of national and human identity.”85 The Appeals Chamber’s ultimate vacation of Bagosora’s conviction for the sexual assault of the Prime Minister after her murder may be challenged as wrong. In overturning Bagosora’s conviction under Article 6(3) for “Other Inhumane Acts” as Crimes Against Humanity arising from the desecration of the Prime Minister’s body, the Appeals Chamber held that the Indictment did not charge Bagosora for the desecration of the Prime Minister’s body.86 This finding is arguably incorrect. The Appeals Chamber appears to have incorrectly construed Paragraph 6.9 of the Indictment, and also failed to read it together with post-Indictment communications. The Appeals Chamber held that paragraph 6.9 of the Indictment (quoted above), does not refer to what happened

82 Bagosora & Nsengiyumva v. The Prosecutor, Case. No. ICTR 98-41-A, Brief for Appellant- Bagosora, ¶¶ 323–28 (Month, day, year); Bagosora & Nsengiyumva, Case. No. ICTR 98-41-A, Judgment of the Appeals Chamber, at ¶ 723. 83 Bagosora Case. No. ICTR 98-41-A, Brief for Appellant, at ¶¶ 323–24; 328; Bagosora & Nsengiyumva, Case. No. ICTR 98-41-A, Judgment of the Appeals Chamber, at ¶ 723. 84 Bagosora & Nsengiyumva, Case. No. ICTR 98-41-A, Brief for Appellee-Prosecutor, ¶¶ 242–45 (30 May 2010); Bagosora & Nsengiyumva, Case. No. ICTR 98-41-A, Transcript of Appeal Hearing, 14 (April 1, 2011), p. 14; Bagosora & Nsengiyumva, Case. No. ICTR 98-41-A, Judgment of the Appeals Chamber, at ¶ 724. 85 Bagosora & Nsengiyumva, Case. No. ICTR 98-41-A, Judgment of the Appeals Chamber, at ¶ 729. 86 Id. at ¶¶ 725–28. 400 Mugwanya to the Prime Minister after her murder. But this construction is overly restrictive, and wrongly takes the position that paragraph 6.9 was intended to present the incidents in the chronology in which they occurred. Such intention cannot be read from the pleading, which must be construed in good faith in accordance with the ordinary meaning to be given to its terms. If the Prosecutor had intended to present the incidents in a chronological order, the paragraph should have specifically stated so, for instance, by inserting “then” after “and” and “killed” – to read, “Prime Minister Agathe Uwingiliyimana was tracked down, arrested, sexually assaulted and then killed.” In the absence of this, such intention cannot be read, or inferred from the allegation. This argument is consistent with the view of an Appeals Chamber judge who dissented. Judge Pocar, a distinguished jurist and former president of the ICTY, disagreed with the Majority. In his view, paragraph 6.9 does not limit the charge against Bagosora to the sexual assault of the Prime Minister prior to her death.87 In any case, Bagosora did not challenge (neither during trial, nor during appeal) the alleged pleading defect. On appeal, he only disputed whether he could be held responsible for defiling the corpse as another “Other Inhumane Act” (as a Crime Against Humanity), because to him, sexual assault can only be committed against a living person. This means that the Appeals Chamber proprio motu considered an issue not raised (and indeed, not argued) on appeal. It follows that the Appeals Chamber denied the parties the opportunity of addressing that issue. Even assuming there was any ambiguity in the pleading, as found by Judge Pocar, this was cured by post-Indictment communications, such as the Pre-Trial Brief, which included the summary of Witness DA’s expected testimony. That summary made a reference to DA seeing a bottle that was inserted in the Prime Minister’s vagina (after her death).88 Turning to the Rukundo case, the Prosecutor may also be credited for a purposive construction of the genocidal act of “causing serious mental harm,” when based on sexual assault falling short of penetration of the victim, building on the foundation laid by his predecessors. As discussed earlier, the Indictment and amendments thereto that preceded Justice Jallow’s appointment, properly charged Rukundo for committing genocide by “causing serious mental harm” to a female victim when he forced himself on her after drinking some beer together and locking the room, but because she resisted, there was no penetration. The Trial Chamber accepted the Prosecutor’s submissions that Rukundo’s conduct met the threshold of the genocidal act of “causing serious

87 Id. at ¶ 4 (Pocar, J., dissenting). 88 Id. Jallow and Gender Justice 401 mental harm,” thereby transcending a mechanistic posture Rukundo advocated for that, if the incident ever occurred, there was genuine consent by the victim. On appeal, Rukundo challenged his conviction, arguing among others, that the Trial Chamber erred in finding that his actions amounted to the commission of genocide by causing serious mental harm. He claimed the victim did not suffer long-term psychological trauma, that her fear of death was not based on his conduct since the victim willingly followed him to his room and he did not use a gun to threaten her. He also argued that that the Trial Chamber erred in finding that he intentionally inflicted serious harm to the victim with genocidal intent – namely, to destroy the Tutsi group to which the victim belonged.89 Although the Appeals Chamber, by majority, allowed Rukundo’s appeal on the basis that the evidence was insufficient to sustain a finding that Rukundo perpetrated the sexual violence with genocidal intent, the Appeals Chamber upheld the Trial Chamber’s finding that the sexual violence was highly degrading and non-consensual.90 In essence, like the Trial Chamber, the Appeals Chamber rejected Rukundo’s assertion, and accepted the Prosecutor’s submissions, that “causing serious mental harm” cannot be construed mechanistically, such as by strictly confining attention only to the permanency of the trauma, but taking a case-by-case analysis of each situation. While the harm must be “serious”, thus transcending mere temporary unhappiness, embarrassment or humiliation, it does not have to be permanent or irremediable.91

4 Other Issues and Conclusion

In addition to the actions taken by Justice Jallow discussed thus far, during his tenure, the Prosecutor and his Office pursued other important actions, intended to ensure a more effective investigation and prosecution of rape and sexual violence. It is not possible, given space constraints for this chapter, to engage in a detailed analysis of all of them. In summary they include the following. Firstly, based on the notoriety of the attacks that were directed against Tutsis in Rwanda, and the fact that the occurrence of crimes, such as rape and

89 See Rukundo, Case. No. ICTR 2001-70-A, Judgment of the Appeals Chamber, at ¶¶ 229–32. 90 See id. at ¶¶ 236–37. 91 See also Akayesu, Case No. ICTR 96-4-T, Judgment of the Trial Chamber, at ¶ 502; The Prosecutor v. Kayishema & Ruzindana, Case No. ICTR 95-1-T, Judgment of the Trial Chamber II, ¶ 108 (May 21, 1999). For the ICTY, see e.g., Kristic, Case No. IT-98-33-T, Judgment of the Trial Chamber, at ¶ 513. 402 Mugwanya sexual violence had been adjudicated in previous ICTR cases, the Prosecutor moved, pursuant to Rule 94 of the ICTR’s Rules, an ICTR Chamber in the Karemera et al. case, to take judicial notice that widespread and systematic attacks against civilians based on Tutsi identification constituting genocide, took place in Rwanda between 6 April and 17 July 1994.92 The rationale, critical for prosecutions generally, and to rape prosecutions in particular, was to avoid or limit needless adduction of evidence on such matters in every single case, including the recalling of every single victim, to testify (including those testifying not directly to the accused’s criminal acts, or his/her personal participation in the crimes), which would occasion re-traumatization for rape victims and witnesses. With respect to the occurrence of genocide in Rwanda, and five other facts, the Prosecutor sought the Chamber to judicially recognize them as matters of common knowledge, because they were facts that were notorious and were not reasonably subject to dispute. It followed that the Trial Chamber possessed no discretion with respect to such facts – once a Chamber determined that such facts were of common knowledge, it had to take judicial notice of them without calling for more evidence.93 Specifically concerning rape and sexual violence that occurred in diverse parts of Rwanda, the Prosecutor requested the Trial Chamber to take judicial notice thereof as adjudicated facts. That is to say, “facts that have been established in proceedings between other parties on the basis of the evidence the parties to that proceeding chose to introduce, in the particular context of that proceedings. For this reason, they cannot simply be accepted, by mere virtue of their acceptance in the first proceedings, as conclusive in proceedings involving different parties who have not had the chance to contest them.”94 Therefore, whereas judicial notice of facts of common knowledge (under Rule 94(A)) establishes those facts conclusively (there is no need to adduce further evidence), when judicial notice is taken of adjudicated facts (under Rule 94(B)), such facts are established as presumptions that may be rebutted by evidence at trial.95

92 Karemera et al., Case No. ICTR 98-44-T, Motion for Judicial Notice of Facts of Common Knowledge and Adjudicated Facts (June 30, 2005). 93 Karemera et al., Case No. ICTR 98-44-A, Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, at ¶¶ 40–42 (June 16, 2006) [hereinafter Karemera et al., Judicial Notice Decision]. 94 Id. at ¶ 40. 95 Id. at ¶ 42. Jallow and Gender Justice 403

When the Trial Chamber denied vital aspects of the Motion,96 the Prosecutor appealed. In upholding this appeal, the Chamber made important findings, some of which are critical to the prosecution of rape and sexual violence. It found that the fact that genocide had occurred in Rwanda in 1994 was a matter of common knowledge that was reasonably indisputable, and which must be judicially noticed. Indeed, the Chamber underscored that the campaign of violence targeting Tutsis involved not only killings, but acts of rape: “That campaign was to a terrible degree successful; although exact numbers may never be known, the great majority of Tutsis were murdered, and many were raped or otherwise harmed.”97 Taking judicial notice on the occurrence of atrocities, including rape, as a matter of common knowledge, or as an adjudicated fact, is important in the investigation and prosecution of rape – it obviates the need to introduce evidence documenting what is already known98 – thus protecting witnesses from the re-traumatization arising from testifying multiple times on similar matters.99 Moreover, as the Appeals Chamber explained, even if the widespread or systematic nature of the atrocities were elements of any crime – such as crimes against humanity – this did not prevent a court from taking judicial notice of such atrocities, because it was not inconsistent with the Prosecutor’s burden of proof and the fair trial rights of the accused. Indeed,

[It] does not lessen the Prosecutor’s burden of proof or violate the procedural rights of the Accused. Rather, it provides an alternative way that that burden can be satisfied, obviating the necessity to introduce evidence documenting what is already common knowledge. The Prosecution must, of course, still introduce evidence demonstrating that the specific events alleged in the Indictment constituted genocide and

96 Among others, the Trial Chamber held that it would not take judicial notice of facts, which concerned legal findings which constituted elements of crimes charged, or facts that went directly or indirectly to the criminal responsibility of the accused. See e.g., Id. at ¶¶ 26, 48. 97 Id. at ¶ 35. 98 Id. at ¶ 37. 99 Indeed, in Karemera (which is currently on appeal), the Trial Chamber relied among others on adjudicated facts to find that in diverse locations in Rwanda, women and girls were raped, among others, by Interahamwe and militiamen. See e.g., Karemera et al., Case No. 98-44-T, Judgment and Sentence of the Trial Chamber III, ¶¶ 1351, 1354, 1368, 1383, 1389, 1403, 1405, 1407. 404 Mugwanya

that the conduct and mental state of the Accused specifically make them culpable for genocide.100

Furthermore, with respect to the Prosecutor’s request that the Trial Chamber takes judicial notice, among others, of rape as an adjudicated fact in other ICTR cases, the Appeals Chamber rejected the position taken by the Trial Chamber that a Trial Chamber must absolutely or completely deny such request if the facts (e.g. of rape) go directly or indirectly to the criminal responsibility of the Accused.101 In the Appeal Chamber’s view, the logic of the Trial Chamber “if consistently applied, would render Rule 94(B) a dead letter. Facts that are not related, directly or indirectly, to that criminal responsibility are not relevant to the question to be adjudicated at trial, and, so, . . . may thus neither be established by the evidence nor through judicial notice.”102 Nevertheless, the Chamber concluded that, there is always need for caution in allowing judicial notice for facts adjudicated in other cases not involving the accused that are central to the criminal responsibility of the accused. Most critical is that the Prosecutor bears not only the burden of production (of evidence) but also and of persuasion. Expedience cannot override the need to ensure reliability of evidence – and thus an accused must be allowed to confront his accusers in his own case. The concluding point is that, concerning taking judicial notice of adjudicated facts relating to the criminal responsibility of the accused, a Trial Chamber must carefully exercise discretion. The Appeals Chamber remanded the matter to the Trial Chamber to determine if it would take judicial notice of the occurrence of rape in a named location as an adjudicated fact. Again, like its approach to judicial notice of facts of common knowledge, the Appeals Chamber allowed room for a Chamber to take judicial notice of crimes, including rape, based on adjudicated facts, even if they related to the criminal responsibility of the accused. A careful exercise of such discretion would ensure respect for the rights of the accused, and of the victims – for instance, in appropriate cases, a Chamber may admit facts as adjudicated, without having to recall witnesses, thus protecting them from re-traumatization as a result of testifying to the same incidents multiple times. Another vital action strengthened by Justice Jallow, was the working of the Office’s Witness Management Team, which offered counselling and other

100 Karemera et al., Judicial Notice Decision, at ¶ 37. 101 Id. at ¶¶ 45–53. 102 Id. at ¶ 48. Jallow and Gender Justice 405 services to victims of rape and sexual violence in the field. The team included licenced nurses with special skills in treating such victims.103 In conclusion, the investigation and prosecution of rape and sexual violence presents peculiar challenges. Throughout his tenure, Justice Jallow was alive to this challenge. Building on the foundations laid by his predecessors, and judicial precedents, such as Akayesu, he took various actions to address these challenges. As I have argued in this paper, the actions that he took contributed to more effective investigation and prosecution of rape and sexual violence crimes at the ICTR. These actions, in this view, constitute vital lessons that other national and international courts may find useful in their investigation and prosecution of similar crimes.

103 See generally ICTR Prosecutor Best Practices Manual, supra note 4, at 21.

part 6

Concurrent Jurisdiction between National and International Courts

∵

chapter 20 Transfer of Cases under the Jurisprudence of the ICTR and Lessons Learnt for the ICC

Alhagi B. M. Marong and Charles Chernor Jalloh

1 Introduction

The experiences of the International Criminal Tribunal for Rwanda (“ICTR” or “Tribunal”) with requests for transfer of genocide cases to national courts, and thus the Tribunal’s experiment with concurrent jurisdiction, began with the Prosecutor’s request to refer Michel Bagaragaza to Norway for trial.1 The accused was a member of the former Rwandese ruling party, the National Republican Movement for Democracy and Development (known by its French acronym, “MRND”)2 who had admitted to using his power and influence as a senior civil servant and head of Rwanda’s state-owned tea factory, to support genocidal acts by the extremist Hutu militia, the Interahamwe. The ICTR Prosecutor had reached an agreement with Bagaragaza that in exchange for the latter’s testimony against senior genocide-era political and military figures at the Tribunal, his case would be transferred for trial to a national jurisdiction outside Africa.3 In this regard, and following negotiations with the Govern ment of Norway, which had expressed willingness to accept Bagaragaza’s case, the Prosecutor filed a request to transfer him to be tried in Norway’s criminal courts. Unfortunately, this inaugural test with Rule 11 bis transfers would take on an unexpected turn of events. One would have thought that given the agreement between the Prosecutor and Defence, and the concurrence of the proposed referral State to try the case in its domestic courts, there would be little difficulty in carrying out Baragagaza’s transfer. However, both the Trial and Appeal Chambers in fact denied the Prosecutor’s request on the ground that Norway lacked subject-matter jurisdiction to try the accused for serious international

1 The Prosecutor v. Michel Bagaragaza, Case No. ICTR-05-86-R11bis, Prosecutor’s Request for Referral of the Indictment to Another Court, 15 February 2006. 2 Mouvement républicain national pour la démocratie et le dévelopment. 3 The Prosecutor v. Michel Bagaragaza, “Decision on Rule 11 bis Appeal”, 30 August 2006, para. 3 (hereinafter “Bagaragaza Appeal Decision”).

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_021 410 marong and jalloh crimes such as genocide, for which he was charged at the ICTR.4 The Judges reasoned that the comparatively lower charge of culpable homicide under Norwegian law, would not adequately reflect the full scope of Bagaragaza’s criminal culpability if convicted.5 Following the unsuccessful request to turn Bagaragaza over to Norway for trial, the Prosecutor filed a second request under Rule 11 bis, this time to transfer him to the Netherlands. Although this second request was granted by Trial Chamber III,6 the referral order had to be subsequently revoked because the Dutch conceded, following domestic proceedings in a different case involving another Rwandan national, that they lacked subject-matter jurisdiction to try Bagaragaza for genocide and that their ability to try him for war crimes was uncertain.7 For these reasons, a differently constituted bench of Trial Chamber III rescinded the previous referral order to The Netherlands, and ordered Bagaragaza to be returned to ICTR custody for the purposes of prosecution.8 In doing so, the Court noted that “jurisdiction to prosecute the acts of an accused as international crimes is a minimum requirement for the referral of a case pursuant to Rule 11 bis.”9 Although this chapter discusses the ICTR’s jurisprudence on the Prosecutor’s requests for referral of cases to Rwanda and the various law reform measures

4 The Prosecutor v. Michel Bagaragaza, “Decision on the Prosecution Motion for Referral to the Kingdom of Norway”, 19 May 2006, para. 16; Also Bagaragaza Appeal Decision, supra, paras. 16, 17, and 18 where the Appeals Chamber concludes that it: “cannot sanction the referral of a case to a jurisdiction for trial where the conduct cannot be charged as a serious violation of international humanitarian law.” 5 Bagaragaza TC Decision, para. 16; and Bagaragaza Appeals Chamber Decision, para. 18. 6 The Prosecutor v. Michel Bagaragaza, “Decision on Prosecutor’s Request for Referral of the Indictment to the Kingdom of the Netherlands”, 13 April 2007. 7 The Prosecutor v. Michel Bagaragaza, “Decision on Prosecutor’s Extremely urgent Motion for Revocation of the Referral to The Kingdom of the Netherlands Pursuant to Rule 11 bis (F) and (G)”, 17 August 2007, para. 3 (hereinafter “Bagaragaza Revocation Decision”). The Netherlands’ admission was prompted by the fact that on 24 July 2007, the District Court of The Hague found that it lacked jurisdiction to try another Rwandan national, Joseph Mpambara, for genocide. The Dutch Prosecutor was going to invoke a similar jurisdictional basis for Bagaragaza’s trial in Netherlands. 8 Bagaragaza subsequently entered a guilty plea agreement with the Prosecutor, which was approved by the Tribunal. Based on the plea agreement, he was convicted for complicity in genocide and sentenced to a term of eight years imprisonment with credit for time served since his voluntary surrender to the Tribunal in August 2005. See The Prosecutor v. Michel Bagaragaza, Sentencing Judgement, 5 November 2009. 9 Bagaragaza, “Revocation Decision”, para. 11. transfer of cases under the jurisprudence of the ictr 411 adopted by Rwanda to improve its domestic legal framework for that purpose, the Bagaragaza and subsequent transfer decisions broached the broader question of the requirements that national criminal justice systems must meet in order to prosecute serious international crimes where they enjoy concurrent jurisdiction with an international tribunal which enjoys primacy. On this issue, though rooted in fundamentally different assumptions, we suggest that there is convergence between the primacy principle of the ad-hoc tribunals, under which national jurisdictions may at any stage of their criminal procedures be formally requested to defer to the competence of the international court, and the principle of complementarity at the International Criminal Court (“ICC”) which essentially reverses the top down relational model in favour of a bottom up approach. With the shift to complementarity, which governs at the ICC and now seems en vogue in international criminal justice discussions, the international court is not entitled to step in to a domestic jurisdiction to investigate or prosecute the core atrocity crimes unless the State is inactive, unwilling and or unable to prosecute.10 In the ICTR, as the Rule 11 bis jurisprudence demonstrated, domestic legal systems were required to meet and maintain certain international fair trial standards in order for the Tribunal to waive its primacy in their favour. As Prosecutor Hassan Jallow, who was personally committed to the success of the transfer process of suspects to national jurisdictions especially Rwanda for trial has noted, this is one area where the ICTR broke “new ground”. It did so because, although the transfer cases presented an “unusual matter” for a court ordinarily concerned with determining the culpability of an accused person, the trial and appeals chambers had to determine important issues regarding “whether a particular national jurisdiction has the will and the capacity to deliver fair trial for the accused person”11 before it would be comfortable to turn defendants over to it. Similarly, even though a bare showing of willingness, some ability and some steps to prosecute the crimes at the national level is in principle sufficient to keep the ICC at bay, we submit that a progressive application of the complementarity principle would suggest that in fleshing out the willing and

10 Statute of the International Criminal Tribunal for Rwanda, annexed to UNSC Res. 955 (1994), Article 8 (2) for the primacy principle; and Rome Statute of the International Criminal Court (1998), Article 17 for the principle of complementarity. 11 See Transcript, Atrocity Crimes Litigation Year-in-Review (2008), January 29, 2009, Blum Legal Clinic, Center for International Human Rights, Northwestern University School of Law, at 1 and 11. 412 marong and jalloh able criteria under the Rome Statute’s admissibility regime, ICC judges could help to articulate the minimum fair trial standards that are required for cases to remain within the domestic jurisdiction of situation countries while The Hague-based court maintains its status as a backup tribunal of last resort.12 Such an approach would be consistent with the emerging jurisprudence on complementarity as well as the legislative intent of the Rome Statute to create a fall-back criminal justice system at the international level – at least in relation to the so-called “core international crimes” – which operates principally where domestic courts do not pursue the perpetrators either because they fail to take steps to investigate or prosecute or are simply unwilling or unable to do so. Furthermore, in our view, this approach is desirable for at least two additional reasons. First, through proactive prosecutorial and judicial actions, ICC judges could provide impetus for legal reforms in national criminal justice systems along the same lines that their ICTR equivalents have done for Rwanda. The impact on national justice systems will thus be deeper and wider than if the Court took a conservative line – as it appears to have done – which eschews any explicit concern for the fairness of national procedures vis-à-vis the suspect when conducting its inadmissibility determinations. Indeed, as we will argue more extensively further below, if the ICC is not satisfied that the rights of the accused will be respected in the national jurisdiction, it arguably has both the legal and moral obligation to reject the admissibility challenge by the State wishing to displace the international penal court’s assertion of jurisdiction. For it should be apparent that if the judges in The Hague set a lowest common denominator standard that does not weigh the likely humane treatment and the fair trial concerns of the suspect in the way the ICTR did when making its Rule 11 bis determinations, it could be seen as undermining the very notion of a rule of law based justice system that it essentially symbolizes. And, more fundamentally perhaps, it would lose the golden opportunity to “bring up” the criminal justice standards of a given State.

12 George H. Norris, “Closer to Justice: Transferring Cases from the International Criminal Court” 19 Minn. J. Int’l L. 201, at 226, arguing for the adoption of a transfer mechanism under the Rome Statute modelled on ICTR Rule 11 bis and noting, inter alia, that: “Decisions on transfer motions can also serve as vehicles for feedback to states on the condition of their judicial systems in relation to international norms. Transfer motions would create a dialogue between countries and the ICC that could drive improvements in national judiciaries. The motions would also help facilitate the development of international standards and best practices towards which other countries could strive.” transfer of cases under the jurisprudence of the ictr 413

Second, and though this argument could be controversial in some respects, the development of Rule 11 bis type criteria for application in the ICC context may help catalyse the development of a threshold of complementarity that takes into account the different stages of development and maturity of domestic legal systems without necessarily compromising the establishment of minimum international fair trial standards defining State Party interactions with the Court.13 But, to be clear, we are not here advocating that the ICC sit in judgment over the viability or strength of domestic legal systems that must then meet an unrealistic gold standard before they can be allowed to retain and prosecute cases over which they are legally entitled to the first bite of the cherry. That would be problematic both from a sovereignty and a principled point of view. This is so because of, among others, the diverse range and quality of the justice ordinarily meted out by different criminal justice systems even in ordinary cases let alone those involving international crimes. Even more fundamentally, it might transform the ICC into a court of first instead of last resort for situation countries, a burden that it will obviously not be able to carry. Nor are we proposing that The Hague judges second guess the role of national courts when in good faith attempting to discharge their primary duties to investigate and prosecute the Rome Statute crimes at the national level. Again drawing inspiration from the ad-hoc tribunals especially the ICTR, we argue that it is possible for domestic legal regimes to prosecute the large majority of such cases on the basis of the complementarity principle, while putting in place adequate mechanisms for international monitoring and oversight to ensure basic fair trial standards are met. At the Chapter VII tribunals, this was achieved through a mix of incentives (the prospect of transfer and trial in domestic courts) with institutional pressure (monitoring and the possibility of revocation by the Tribunals) to ensure that Rwanda and Bosnia adapt their domestic legal frameworks, and that domestic prosecution of international crimes meet minimal fair trial thresholds. Interestingly, in the ICC situations where admissibility concerns have been raised, States appear to concede that their capacity to provide trials that comport with basic due process requirements were necessary as part of their showings of willingness and ability to investigate and prosecute under their own domestic laws.

13 We should note, however, that the recent works of scholars testing whether this assumption is borne out in practice has cast a measure of doubt on the presumed catalytic effect. See Sarah M. H. Nouwen, Complementarity in the Line of Fire: The Cataylising Effect of the International Criminal Court in Uganda and Sudan (CUP, 2013). 414 marong and jalloh

Given its principal claim that international criminal justice institutions could, through their statutory provisions or rules and judicial decisions moti- vate developments in domestic law, this chapter seeks to contribute to the academic discourse on the role of international tribunals, such as the ICTR, in positively influencing domestic governance including legislative reform and the institutional design of national courts. As discussed more fully below, this influence was evident in Rwanda’s reaction to the ICTR Judges initial refusal to transfer cases to that country. A similar process of interaction and influence was observed by Professor Burke-White in relations between the ICTY and domestic courts in Bosnia-Herzegovina.14 On the other hand, though the ICC has had opportunity to do something similar in Kenya for instance, it has essentially shied away from that task. The reasons it did so seemed good, and turned on its ability to complete the cases it had ongoing. Still, we consider that this was an important missed opportunity for the Court to impact deeply and more widely the domestic legal system of that State.15 Our chapter proceeds as follows. First, we show how the ICTR addressed its concurrent jurisdiction with national courts under Rule 11 bis. Second, we explain the manner in which the judges took an active interest and role in the fairness of the proceedings that the transferees will be exposed to should they be handed over to the relevant national authorities in particular Rwanda’s. We then review the case law to unearth the factors that the judges developed as a benchmark against which to determine the suitability of sending a given suspect to a national court for trial before we show the impact and direct influence of those criteria on legal reforms in Rwanda. In the final part, we build on the prior sections to explain why it seems problematic that the ICC failed to learn the positive lessons of the ICTR case law for incorporation into its admissibility assessments in the Libya Situation case involving Abdullah Al-Senussi, Gaddafi’s former intelligence chief. In the latter scenario, on which it is important to focus as it is the first and to date only instance whereby The Hague Court relinquished a case to a national system after finding the matter inadmissible under the Rome Statute, the Appeals Chamber determined that the ICC was not a human rights court. Consequently, it was therefore not per se concerned with folding into inadmissibility assessments the fair trial com-

14 William Burke-White, “The Domestic Influence of International Criminal Tribunals: The International Criminal Tribunal for the Former Yugoslavia and the Creation of the State Court of Bosnia & Herzegovina”, 46 Colum. J. Transnat’l L. 279. 15 For a development of this argument, in the context of discussions of the Appeals Chamber ruling on Kenya’s complementarity challenge, see Charles C. Jalloh, “Kenya vs. The ICC Prosecutor”, 53 Harvard International Law Journal Online (August 2012). transfer of cases under the jurisprudence of the ictr 415 plaints that a suspect or accused might have as part of his claim for his matter to remain with the international tribunal because his home State was simply unwilling or unable to guarantee due process.

2 Applying Concurrent Jurisdiction: Rule 11 bis of the ICTR Rules of Procedure and Evidence

The relationship between the Rwanda Tribunal and national courts is governed by Article 8 of the Tribunal’s Statute together with the deferral and referral regimes provided for under Rules 8, 9, 10, 11 and 11 bis of the Rules of Procedure and Evidence (“RPE”). Article 8 lays down the principle of concurrent jurisdiction and confers primacy on the Tribunal to prosecute persons accused of serious violations of international humanitarian law in Rwanda or by Rwandan citizens in neighbouring countries in the year 1994.16 Under that principle, at any stage of the national trial process including after a case has been transferred to the national jurisdiction from the Tribunal, it can request the domestic court to step aside and relinquish a given case. While the principle of concurrent jurisdiction has existed under the Tribunal’s Statute from inception, its substantive application only began with the Security Council’s requirement in 2003 and 2004 for the Tribunal to adopt a Completion Strategy by which it would focus on the trial of senior leaders/planners of the genocide, and consider transferring the cases of intermediate and lower-rank perpetrators to appropriate national jurisdictions.17 To facilitate such transfers, Rule 11 bis was introduced in the ICTR Rules of Procedure and Evidence in 2003. Rules 8, 9, and 10 of the RPE, when read together, permit the Prosecutor to seek an order from the Trial Chambers for national courts which are investigating or prosecuting persons subject to the Tribunal’s jurisdiction, to defer to the competence of the Arusha-based court. This exercise of the Tribunal’s primacy was the norm for almost ten years from the Tribunal’s establishment. It explains why the vast majority of individuals arrested in connection with

16 Statute of the United Nations International Criminal Tribunal for Rwanda, Annexed to UNSC res. 955 of 1998. Article 8(1) and (2). 17 UNSC res. 1503 (2003), UNSC res 1504 (2003), 23 August 2003, “Urging the ICTR to formalize a detailed strategy . . . to transfer cases involving intermediate and lower-rank accused to competent national jurisdictions, as appropriate, including Rwanda, in order to allow the ICTR to achieve its objective of completing investigations by the end of 2004, all trial activities at first instance by end of 2008, and all of its work in 2010.” 416 marong and jalloh the Rwandan genocide from various parts of the world, had to be transferred to the United Nations Detention Facility at the seat of the Tribunal in Arusha, Tanzania.18 However, as the ICTR approached a decade of its establishment, with ever increasing budgets and the slow pace of progress in some of its cases, the Security Council directed the Tribunal to put in place a strategy for completion of ongoing cases, and a review of the remaining ones, including the case files of persons at large, with a view to determining those suitable for transfer to appropriate national jurisdictions.19 The UNSC mandated Completion Strategy was thus to give a new lease on life to the principle of concurrent jurisdiction, and in particular Rule 11 bis of the RPE.20 As opposed to the framework of deferral contained in Rules 8, 9, and 10, Rule 11 bis provides a regime for referral of persons or case files to States on the basis of either one of three jurisdictional grounds including territoriality (“where the crime was committed”), personality (“the accused was arrested”), or subject matter (“having jurisdiction and being willing and adequately prepared to accept the case”).21 Given the three jurisdictional bases under Rule 11 bis, there was little surprise that the Prosecutor, in the face of general reluctance of many states to come forward and offer to take transferred accused persons for trial, chose to seek referral to Rwanda as the locus criminis for most of the crimes and the state with the greatest interest in receipt of the

18 Of 90 individuals sought by the ICTR, only 6 (i.e. less than 10%) as of writing, remain fugitives from justice. 19 Cecile Aptel, “Closing the U.N. International Criminal Tribunal for Rwanda: Completion Strategy and Residual Issues”, 14 New Eng. J. Int’l & Comp. L., 169 at 170–171. 20 Burke-White, supra note 12, at 295, using a multi-level governance theory to explain the relationship between the ICTY and national courts of BiH, and arguing that the relationship was characterised by a contestation over the levels of authority at which certain governance functions, in this case criminal prosecution, should occur. While initially the Security Council had shifted the locus of criminal prosecution authority from the national to the international level by its introduction of the primacy principle in the Statute of the Tribunal, the adoption of the Completion Strategy in 2002 was to catalyze the activation of national courts in Bosnia-Herzegovina with jurisdiction to prosecute international crimes. 21 The Prosecutor v. Fulgence Kayishema, “Decision on the Prosecutor’s Request for Referral of Case to the Republic of Rwanda”, 16 December 2008, para. 18, where the Chamber held that if it finds that any of the jurisdictional grounds under Rule 11 bis (A) is established, it can proceed to consider whether the accused will receive a fair trial under Rule 11 bis (C). In other words, the jurisdictional bases under sub-paragraph (A), are disjunctive requirements. transfer of cases under the jurisprudence of the ictr 417 cases.22 As the jurisprudence would however show, while there was no dispute about the territorial basis for referrals to Rwanda and it is apparent that the East African nation was the most invested in having trials amongst prospective states, many other legal and practical obstacles remained before such referrals could take place. For the most part, these obstacles revolved around the interpretation of Rule 11 bis (C) which mandated the Trial Chamber to satisfy itself that the accused will receive a fair trial in the courts of the transfer state and that capital punishment will not be imposed or carried out.23

3 Judicial Progressivism at the ICTR – Analysis of the Rule 11 bis Decisions

The ICTR jurisprudence on referrals to Rwanda has evolved in two phases. The first phase commenced with the Trial and Appeals Chamber decisions in

22 Amelia S. Canter, “‘For these Reasons the Chamber Denies the Prosecutor’s Request for Referral’: The False Hope of Rule 11 bis” 32 Fordham Int’l L. J. 1614, at 1630 quoting the ICTR Prosecutor, Hassan Bubacar Jallow as stating that Rwanda “actually resents transfers to other jurisdictions and considers that its courts are the natural forum for genocide trials that the international tribunal will not undertake.” On the other hand, Prosecutor Jallow made several additional statements explaining additional elements of his strategy was driven by the need for the Tribunal to eliminate fugitives on its list and that by succeeding in securing referrals to Rwanda it would enable national jurisdictions to also feel confident to extradite genocide suspects to Rwanda. At the same time, he had on different occasions observed that, with the exception of a handful, many states had not been anxious to offer to take transferred genocide suspects for trials in their national courts. The reasons for this differed, and for the African States, it turned on questions of capacity and resources as opposed to willingness. He thus emphasized the imperative for other jurisdictions including from European states to volunteer do so. See, in this regard, the Statements by Justice Hassan B. Jallow, Prosecutor of the ICTR, to the UN Security Council, 29 June 2004; 13 June 2005; 7 June 2006; 15 December 2006 and 12 December 2008. 23 Aptel, “Closing the UN-ICTR”, supra note 19, stating that “Rule 11 bis regulates the position of eligibility of the States to which a case can be sent. Thus, the role of the international judges has evolved to encompass the evaluation of the adequacy of national legal systems. Indeed, regarding the process of deciding whether or not to refer a case for trial to a domestic jurisdiction, the judges assess the capacity of that jurisdiction to provide the conditions of a fair trial. Such an assessment is by nature not only intricate but also relative. It somewhat redefines the mandate of the international judges, which extends from litigating purely criminal cases to evaluating domestic jurisdictions.” 418 marong and jalloh the five cases involving Munyakazi,24 Kanyarukiga,25 Hategekimana,26 Kayishema,27 and Gatete.28 In each of these cases, the Trial and Appeals Chambers denied the Prosecutor’s referral requests on the basis of Rule 11 bis (C) holding either that the penalty structure under Rwandan law failed to meet international standards, or that the country’s legal framework provided insufficient guarantees for the preservation of the fair trial rights of the accused.29 Informed by the Judges’ position on the various issues raised in these cases, Rwanda embarked upon a process of legislative reform and institutional (re)design aimed at bringing its domestic law into conformity with the international legal standards articulated by the Judges. As a result of these reforms, the second phase of referral requests to Rwanda beginning in 2011, were granted by the Tribunal including cases such as Uwinkindi,30 and Munyagishari.31 In granting these requests, the ICTR Judges acknowledged the progressive development of Rwandan law, and noted that judicial concerns about fair trial had

24 The Prosecutor v. Yussuf Munyakazi, “Decision on the Prosecutor’s Request for Referral of Case to the Republic of Rwanda”, 28 May 2008 (hereinafter “Munyakazi TC Decision”); The Prosecutor v. Yussuf Munyakazi, “Decision on the Prosecutor’s Appeal against Decision on referral under Rule 11 bis” 8 October 2008, (hereinafter “Munyakazi A.C. Decision”). 25 The Prosecutor v. Gaspard Kanyarukiga, “Decision on Prosecutor’s Request for Referral to the Republic of Rwanda”, 6 June 2008 (hereinafter “Kanyarukiga TC Decision”); The Prosecutor v. Gaspard Kayarukiga, “Decision on the Prosecutor’s Appeal Against Decision on Referral under Rule 11 bis”, 30 October 2008 (hereinafter “Kanyarukiga A.C. Decision”). 26 The Prosecutor v. Idephonse Hategekimana, “Decision on Prosecutor’s Request for Referral of the Case of Idelphonse Hategekimana to Rwanda under Rule 11 bis,” 19 June 2008 (hereinafter “Hategekimana TC Decision”); The Prosecutor v. Idephonse Hategekimana, “Decision on Prosecutor’s Appeal for Request under Rule 11 bis,” 4 December 2008 (hereinafter “Hategekimana A.C. Decision”). 27 Kayishema TC Decision, supra, note 16. 28 The Prosecutor v. Jean-Baptiste Gatete, “Decision on Prosecutor’s Request for Referral to the Republic of Rwanda”, 17 November 2008 (hereinafter “Gatete TC Decision”). 29 See discussion of case law infra. 30 The Prosecutor v. Jean Uwinkindi, “Decision on Prosecutor’s Request for Referral to the Republic of Rwanda”, 28 June 2011 (hereinafter “Uwinkindi TC Decision”); Jean Uwinkindi v. The Prosecutor, “Decision on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda and Related Motions”, 16 December 2011 (hereinafter “Uwinkindi AC Decision”). 31 The Prosecutor v. Bernard Munyagishari, “Decision on the Prosecutor’s Request for Referral of the Case to the Republic of Rwanda”, 6 June 2012 (“Munyagishari TC Decision”); Bernard Munyagishari v. The Prosecutor, “Decision on Bernard Munyagishari’s Third and Fourth Motions for Admission of Additional Evidence and on the Appeals Against the Decision on Referral under Rule 11 bis”, 3 May 2013, (hereinafter, “Munyagishari AC Decision”). transfer of cases under the jurisprudence of the ictr 419 been largely addressed through a variety of legislative reforms and changes in policy. By reviewing the two phases of ICTR referral jurisprudence, we hope to demonstrate that international judicial processes could positively influence normative development and growth within domestic legal systems in a manner that harmonises domestic law with international legal standards. Some scholars have invoked the principle of norm leadership to describe this process.32 We also argue that the judicial attitude towards Rule 11 bis referral requests, and hence the impetus for legal reform and development in Rwanda, were informed not only by the legal submissions of the parties to the case (i.e. the prosecution and defence), but also through advocacy by a broad range of other international actors including States (Rwanda), professional associations (KBA, ICDAA, IADL), issue-oriented groups (HRW) and victims groups.33 For example, both the International Criminal Defence Attorneys Association and Human Rights Watch filed amicus curiae briefs arguing against referral to Rwanda. On the other hand, the Kigali Bar Association and the Government of Rwanda filed briefs in support of the Prosecutor’s referral requests. Of course, Prosecutor Jallow personally, as reflected by his numerous statements on the matter, was convinced that building the capacity of Rwanda to prosecute the cases was important. He also saw the challenge of addressing the concerns of the judges in relation to ensuring the fair trial rights of accused persons as an opportunity to leverage systemic legal reforms such as abolition of the death penalty by Kigali based on the recognition that this would have a deeper impact on the country’s rule of law as well as its prospects for greater reconciliation.34 In the end, we suggest that the jurisprudence on Rule 11 bis referrals to Rwanda bears broader international significance going beyond the individual

32 Burke-White, supra note 12, at 307–309. 33 On the various groups that file amici curiae briefs before the ICTR Trial Chambers, see Aptel, “Closing the UNICTR”, supra, note 19, at 180 for the various groups including Ibuka and Avega that filed amici curiae briefs before the ICTR Trial Chambers. Ibuka is an umbrella organization representing genocide survivors, while Avega is an organization representing genocide widows. See also Burke-White, supra note 12, at 307, describing similar groups in the ICTY context as norm entrepreneurs. 34 Statement of Justice Hassan B. Jallow, Prosecutor of the ICTR, to the United Nations Security Council, 15 December 2005; Statement of Justice Hassan B. Jallow, Prosecutor of the ICTR, to the United Nations Security Council, 7 June 2006; Statement of Justice Hassan B. Jallow, Prosecutor of the ICTR, to the United Nations Security Council, 12 December 2008; and Statement of Justice Hassan B. Jallow, Prosecutor of the ICTR, to the United Nations Security Council, 4 June 2009. 420 marong and jalloh cases in which they arose. Through the dialogic referral process and the further interactions between Rwanda and the Tribunal, including various in-country capacity building and technical assistance projects and the support of the Office of the Prosecutor as well as the Registrar,35 Rwanda made remarkable advances in its domestic law leading to larger normative congruence between that domestic law and international legal standards. Compared to the international legal orthodoxy that regards states as the primary lawgivers as well as the only relevant actors in international society, the referral jurisprudence also attests to the role of other actors including principal tribunal officials such as prosecutors and registrars, judges, professional associations and NGOs in defining and refining the international normative standards required for domestic courts to be better equipped to take on international crimes.

4 The Question of Whether or Not to Refer in Concrete Cases

During the first phase of referral cases, the ICTR Judges held the view that Rwanda’s legal system had not fully matured to safeguard the fair trial rights of the accused under Rule 11 bis (C). According to the Judges, three principal legal difficulties militated against transfer: (i) conditions of detention in Rwanda did not meet international standards as it was unclear from the penalty structure whether persons transferred could be subjected to life imprisonment in isolation; (ii) there were insufficient guarantees that the accused would be able to call witnesses in Rwanda or from outside, to testify in support of the defence case; and (iii) working conditions for defence teams may be difficult, thereby affecting the right of the accused to an effective defence. For the ICTR Judges both at the Trial and Appeals Chamber, cumulatively, these difficulties could negatively impact the right of the accused to a fair trial and therefore operated to prevent referral to Rwanda.

35 Adama Dieng, “Capacity-Building Efforts of the ICTR: A Different Kind of Legacy” 9 Nw. U. J. Int’l Hum. Rts. 403 (2011) at 409–410 where he discusses various capacity building programs, including training on Rule 11 bis, organized by the ICTR in support of Rwandan jurists, advocates, human rights activists and academics. See also Aptel, supra note 12, at 182, noting that capacity building and technical assistance was provided not only by the Tribunal, but also by several states including the USA, the Netherlands, Belgium, Germany and the European Union. transfer of cases under the jurisprudence of the ictr 421

4.1 Penalty Structure under Rwandan Law One of the key principles of international criminal jurisprudence is that a referral state must have an adequate penalty structure for the offences charged against an accused under consideration for transfer.36 Therefore in considering whether to refer cases to Rwanda, the ICTR had to review the penalty provisions under Rwandan law for consistency with international standards. Although it was clear at all stages of the referral proceedings that the death penalty, which initially was a hurdle, would not be applied in Rwanda given the abolition of capital punishment in 2007,37 the Tribunal Judges were still concerned about certain aspects of the punishment regime for serious international crimes which included solitary confinement. In assessing Rwanda’s sentencing structure, the ICTR Judges considered two main domestic statutes enacted by Rwanda in 2007 – the Abolition of Death Penalty Law, and the Organic Law on Transfer of Cases from the ICTR to Rwanda.38 Both statutes were enacted with a view to bringing Rwanda’s legal regime in line with the law of the international tribunal, and therefore facilitate referrals from Arusha to Kigali. First, the Organic Law on Transfer of Cases from the ICTR to Rwanda provided for life imprisonment as the maximum penalty that could be imposed with respect to cases transferred from the Tribunal.39 Needless to say, this was a deliberate attempt by Rwanda to mirror the penalty structure under the ICTR Statute.40 However, the interpretation of the Transfer Law became somewhat complicated by the subsequent enactment of the Abolition of Death Penalty Law.

36 Prosecutor v. Radovan Stankovic, Case. No. IT-96-23/2-PT, “Decision on Referral of Case Under Rule 11 bis” 17 May 2005, para. 32; Prosecutor v. Zeljko Mejakic et al., Case No. IT-02- 65-AR11bis.1, “Decision on Joint Defence Appeal against Decision on Referral under Rule 11 bis”, 7 April 2006, para. 48; Prosecutor v. Paško Ljubičjć, “Decision on Appeal against Decision on Referral under Rule 11 bis”, 4 July 2006, para. 48; Bagaragaza AC Decision, para. 9. 37 See Organic Law No. 31/2007, dated 25 July 2007, Relating to the Abolition of the Death Penalty, Article 2, stating simpliciter that: “The death penalty is hereby abolished.” 38 See Organic Law No. 11/2007 dated 16 March 2007 Concerning the Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States. 39 Transfer Law, Article 21: “Life imprisonment shall be the heaviest penalty imposed upon a convicted person in a case transferred to Rwanda from the ICTR.” 40 Statute of the UNICTR, Article 23 providing that the Tribunal can only impose a penalty of imprisonment; and UNICTR RPE, Rule 101 which allows for a maximum penalty of life imprisonment. 422 marong and jalloh

As its name suggests, not only did this Law seek to abolish the death penalty in Rwanda, and replace it by life imprisonment, it went further to specify the categories of life imprisonment that were applicable in the country.41 Section 4 of the Death Penalty Law specified that genocide, crimes against humanity, murder and similar serious crimes, would be punishable by “life imprisonment with special provision”, which means life imprisonment in isolation.42 In determining whether Rwanda had an adequate penalty structure under the terms of Rule 11 bis, the ICTR Judges had to interpret these two Rwandan legislations. The Judges noted that given its intent and purpose to govern the transfer of cases from the Tribunal to Rwanda, the Transfer Law was a specialised regime which, on the face of it, could be interpreted as laying down life imprisonment as the applicable penalty for cases referred by the ICTR to Rwanda.43 However, the Tribunal also noted that the Death Penalty Law, which was adopted a few months after the Transfer Law, provided for life imprisonment in isolation or solitary confinement as the applicable punishment in cases of genocide, crimes against humanity and cognate international crimes. Considering that there was no authoritative domestic jurisprudence on the meaning and application of these two laws, the ICTR Judges felt that there was genuine ambiguity regarding the applicable penalty structure in Rwanda for transferred cases.44 As a result, it was possible that persons transferred could be subjected to life imprisonment in isolation. Since such a punishment would not be consistent with international standards for the treatment of detained persons, it prevented referral of cases to Rwanda.45

41 See Abolition of Death penalty Law, Article 3: “In all legislative texts in force before the commencement of this Organic Law, the death penalty is hereby substituted by life imprisonment or life imprisonment with special provisions . . .”. 42 For a discussion of the relationship between the penalty provisions in the Transfer Law and the Death Penalty Law, see Kanyarukiga, TC Decision, paras. 95–96; Munyakazi, TC Decision, paras. 25–32. 43 The Prosecutor v. Jean-Baptsiste Gatete, “Decision on Request for Referral to the Republic of Rwanda,” 17 November 2008, paras. 86–87; see also Kanyarukiga TC Decision, para. 96. 44 Munyakazi A.C. Decision, paras. 16–20: “Since there is genuine ambiguity about which punishment provision would apply to transfer cases, and since, therefore, the possibility exists that Rwandan courts might hold that a penalty of life imprisonment in isolation would apply to such cases, pursuant to the Abolition of Death Penalty Law, the Appeals Chamber finds no error in the Trial Chamber’s conclusion that the current penalty structure in Rwanda is not adequate for the purposes of transfer under Rule 11 bis of the Rules. See also Kanyarukiga, A.C Decision, paras; 12–17 to similar effect. 45 Ibid. transfer of cases under the jurisprudence of the ictr 423

4.2 Availability of Defence Witnesses The right to fair trial is enshrined in several international legal instruments to which Rwanda is a party. Key among these is the International Covenant on Civil and Political Rights, and the African Charter on Human and Peoples’ Rights.46 In addition, both the Constitution of Rwanda and the Transfer Law, contain elaborate provisions relevant to the right to fair trial.47 It is therefore not surprising that in considering this aspect of the referral requests, the Tribunal Judges were left in no doubt that “the Rwandan legal framework generally mirrors the right to fair trial as embodied in Article 20 of the ICTR Statute.”48 Given that Rwanda had a legal framework that was generally consistent with international fair trial standards, the referral decisions turned upon consideration of the practical application of the legal standards, rather than their existence or lack of it in Rwanda’s statute books. This approach to determining referral requests to Rwanda has been criticised by some scholars.49 In addressing this issue, the Prosecution, the Republic of Rwanda and the Kigali Bar

46 International Covenant on Civil and Political Rights (ICCPR) adopted 16 December 1966, UNTS No. 14668, Vol. 999 (1976), p. 172; African (Banjul) Charter on Human and Peoples’ Rights (ACHPR), adopted 27 June 1981, 21 I.L.M, 58 (1982). 47 The Constitution of Rwanda (2003) guarantees fundamental human rights, including the right to life (art. 12); equality before the law (art. 16); the right of the accused to be informed of the charges against him/her and to a defence (art. 18); the presumption of innocence and fair trial (art. 19); and the principle of legality (art. 20). In addition to these rights, Article 13 of the Transfer Law provides for the right of the accused to adequate time and facilities for the preparation of his defence; trial without undue delay; right to counsel and legal representation for indigent persons; the right to counsel of one’s own choosing; the right to call and examine witnesses; the right to be tried in his presence; and the right to remain silent and the privilege against self-incrimination. 48 Gatete TC Decision, para. 31. 49 See for example, Jesse Melman, “The Possibility of Transfers(?): A Comprehensive Approach to the International Criminal Tribunal for Rwanda’s Rule 11 bis to permit Transfer to Rwandan Domestic Courts”, 79 Fordham L. Rev. 1271, at 1301 to 1302 alleging that there is a double standard in the approach of the Tribunal’s judges to transfers to Rwanda compared to those for Bosnia-Herzegovina. For Rwanda, the Judges have tended to look beyond the letter of the law on the books to matters of fact, including the practical implementation of the laws. On the other hand, for transfers to Bosnia, the Judges have generally been satisfied by the fact that Bosnian law contains guarantees that mirror the statutory framework of the ICTY. Similar allegations have been made regarding the ICTR’s approach to Rule 11 bis transfers to jurisdictions outside Rwanda, such as France, where two cases have been transferred based solely on a consideration of that country’s statutory framework without regard to how the law is implemented in practice. 424 marong and jalloh

Association argued that Rwanda’s legal structure sufficiently guaranteed the fair trial rights of the accused. On the other hand, the Defence, International Criminal Defence Attorneys Association and Human Rights Watch submitted that there was a difference between principle and practice in Rwanda; that practice on the ground failed to mirror the law on the books. This, it has to be said, is not unique to a country such as Rwanda or other African States; it is a problem that is encountered in different parts of the world where it is often the case that State rhetoric fails to match reality when it comes to human rights issues – even for those that have become parties to the relevant treaties, let alone for those that have not. On the question of witness availability, while the Prosecution and Rwanda maintained that witnesses will be allowed to testify for the defence and will be afforded protection, the Defence and amici curiae noted that the experience of defence witnesses in genocide cases both at the Tribunal and in Rwanda, showed that such witnesses could be subjected to threats, harassment, intimidation or even death. Furthermore it was argued that while article 14 of the Transfer Law sought to introduce a witness protection regime modelled on ICTR Rules 53, 69, and 75, there were problems with the implementation of the protection service. In particular, the Defence and amici curiae noted that the witness protection service was managed by the Rwandan Prosecutor General’s office, and complaints about harassment of witnesses, would have to be filed with the Police. The Judges considered these various submissions and acknowledged that no witness protection service at domestic or international law can provide absolute witness protection.50 While Rwanda has attempted to put in place a witness protection regime to facilitate the travel, testimony and security of witnesses, the fact that the service was managed by the Prosecutor-General’s office and that harassment complaints have to be lodged with the Police, may prevent certain witnesses from utilizing its services.51 In addition, the Judges considered that incidents of harassment, threats, and intimidation of witnesses who testify on behalf of genocide accused, and the possibility that they

50 Kanyarukiga, TC Decision, para. 69. 51 Munyakazi, TC Decision, para. 62; Kanyarukiga TC Decision, para. 70 “. . . the link between the witness protection service and the police may, in the Rwandan context, reduce the willingness of some potential Defence witnesses to testify. The fact that the national prosecutor’s office is responsible for the protection of all witnesses, may also be noted by fearful witnesses.” transfer of cases under the jurisprudence of the ictr 425 could be subjected to prosecution for genocide denial,52 meant that when transferred to Rwanda, accused persons may not be able to secure the attendance of witnesses they require to testify in support of the defence case. Where this happens, it would negatively impact the fairness of the trial. On the availability of witnesses based outside Rwanda, the ICTR judges acknowledged the legal and policy changes that had been put in place to facilitate the testimony of such witnesses. In particular, the Transfer Law requires that such witnesses be issued with travel and immigration papers to facilitate their journey, and grants them immunity from search, seizure, arrest or detention during their testimony and when they travel to and from Rwanda for the purpose of giving evidence.53 In addition, Rwanda had invested in video-link technology for the remote reception of evidence from witnesses who harbour genuine fear or threats to their personal security should they travel to Rwanda to give evidence. Despite these advances in Rwandan law, the Judges found that the defence may still face challenges in convincing witnesses based abroad to give evidence on behalf of genocide accused. In reaching this conclusion, the Judges took note of the fact that based on the Tribunal’s own experience, most defence witnesses are based outside Rwanda. The availability of video link technology would not be a panacea to the fair trial problem because it could lead to a situation by which the vast majority of defence witnesses testify by video link from a remote location, while most prosecution witnesses are heard directly by the Chamber.54 Given the strong preference for viva voce evidence in criminal trials, it would violate the principle of equality of arms, and hence the fair trial rights of the accused, if most of his witnesses were heard by video-link while witnesses for the prosecution gave evidence in court. In the view of the Tribunal, this was another factor that prevented referrals to Rwanda.55

52 Article 13 of the Constitution of Rwanda, provides inter alia, that “Revisionism, negationism, and trivialisation of genocide are punishable by law.” See Kanyarukiga TC Decision, para. 71; Munyakazi TC Decision, para. 61; Gatete TC Decision, paras. 62–63 for a discussion of the impact this provision could have on the availability of defence witnesses. 53 Transfer Law, Article 14. 54 Gatete, TC Decision, para. 70; Kayishema, TC Decision para. 45. 55 Gatete, TC Decision, para. 70–72: “It is preferable that witnesses be heard in court. . . . The physical presence of witnesses makes it easier for the bench to assess their credibility, and also for the parties, including the accused, to follow the evidence in the proceedings. Video-link transmission cannot be equated with presence, as there is not the same visual interaction.” See also Kayishema, TC Decision, para. 40. 426 marong and jalloh

4.3 Working Conditions for the Defence Rwandan law recognizes that working conditions for defence teams must be conducive to the fair trial rights of the accused. Under the Transfer Law, Defence Counsel are guaranteed the right of free entry and exit, and to freedom of movement within the country in the discharge of their duties without fear of search, seizure or detention. Defence Counsel may also request the authorities to provide security protection while in Rwanda.56 While Article 15 could be viewed as providing safeguards against interference with the work of defence teams in Rwanda, the evidence before the Tribunal suggested there were difficulties in practice. The ICTR heard and believed evidence that defence teams appearing in genocide trials in Rwandan courts have been subjected to harassment, threats, or in some cases even arrested.57 ICTR Defence teams have also encountered difficulties, including the inability to obtain documents on time or at all, and to meet with detainee witnesses. The Tribunal therefore concluded that working conditions for the defence may be difficult in Rwanda.58 Ultimately, the Judges found that while on their own, the difficult working conditions for the Defence do not prevent transfer, however, when considered alongside other factors, including the possibility that defence witnesses may not be available for testimony, they could have a bearing on the fairness of any trials that follow a successful referral to Rwanda.59

5 Rule 11 bis Denials Catalyse Substantive Law Reforms in Rwanda

The upshot of the judicial decisions denying the Prosecutor’s various requests to refer cases to Rwanda was to say that Rwanda’s legal and judicial systems did not, in practice, meet international fair standards and that the punishment regime in the country was unsuitable for the transfer of cases from an international penal court concerned with the due process rights of the suspects and accused. In particular, the Judges expressed concern about the availability of witnesses for the accused, the working conditions for defence counsel, and the possibility that transferees from the Tribunal could be subjected to the inhumane treatment of life imprisonment in solitary confinement. Rwanda therefore had to either take steps to amend its laws so as to bring them into conformity with international standards, or risk the Tribunal not transferring any cases under Rule 11 bis. It is no secret that Rwanda had always

56 Transfer Law, Article 15. 57 Gatete, TC Decision. para. 52; Kanyarukiga, TC Decision, paras. 61–62; 58 Kanyarukiga, TC Decision, para. 62; Gatete TC Decision, para. 53. 59 Ibid. transfer of cases under the jurisprudence of the ictr 427 harboured a desire to prosecute senior alleged genocidaires in its domestic courts. Indeed it was the Rwandan Government’s view that the Tribunal should have been headquartered in Kigali so that victims and families could witness the international accountability process.60 However, given the state of affairs in Rwanda in the immediate post-genocide era, the international community felt – perhaps rightly – that the quality of justice would be better preserved by holding trials in a more neutral location such as Arusha. The disadvantage, of course, was that this removed the Tribunal from the locus commissi delicti and created a distance between it and the people of the country in whose name it was asked to render justice. This set up the court for what would later become a general criticism of its work by the Rwandese authorities.61 Yet, the Tanzanian location was within reasonable proximity of Rwanda to enable effective investigations to take place, and for the parties and witnesses to travel without too much difficulty. Although that challenge was lessened over time, the Arusha venue might have been inevitable given that the UN’s initial hope to seat the court in Nairobi, Kenya which had better infrastructure, had for various reasons, not come to fruition. Moreover, it was felt that perceptions about the fair trial rights of the accused, in particular the availability and willingness of defence witnesses to testify in Rwanda, as well as concerns about victors’ justice, would be better addressed by holding trials outside Rwanda. In any case, Rwanda felt sufficiently strong about its desire for the Tribunal to be seated in Kigali that it voted against the Security Council resolution that established the ICTR.62

60 Amelia S. Canter, “‘For these Reasons the Chamber Denies the Prosecutor’s Request for Referral’: The False Hope of Rule 11 bis” 32 Fordham Int’l L. J. 1614, at 1619 noting that Rwanda voted against the UNSC resolution establishing the Tribunal for four reasons including (i) its objection to the limited temporal jurisdiction of the ICTR to 1994, thereby excluding the planning stages of the genocide from prosecution; (ii) that the ICTR may have insufficient resources to execute its mandate given that it would share an Appeals Chamber and a Chief Prosecutor with ICTY; (iii) that the Tribunal’s location in Arusha would make it difficult for Rwandans to following the proceedings thereby forestalling the Government’s efforts at promoting accountability and reconciliation; and (iv) finally that the ICTR’s inability to impose the death penalty would imply that senior leaders of genocidal crimes would be receiving lighter sentences at the Tribunal than lower-ranked perpetrators who face trial in Rwanda. 61 See, for example, the Statement by Hon. Tharcisse Karugarama, Minister of Justice and Attorney-General of Rwanda, at the United Nations General Assembly, Thematic Debate on the Role of International Criminal Justice in Reconciliation (April 9, 2013). 62 Rwanda had other reasons for casting a negative vote, in particular, the fact that the Tribunal did not have power to impose the death penalty on those convicted of genocide. 428 marong and jalloh

Almost two decades after the adoption of Security Council Resolution 955, Rwanda has made great strides in the development of its legal and judicial systems. Capital punishment has been abrogated in Rwanda. As the Tribunal Judges acknowledged, Rwanda has also made significant process in the development of other aspects of its legal and judicial systems. Following the virtual complete decimation of its judiciary during the genocide,63 Rwanda has managed to rebuild a functioning judicial system; many judges and lawyers have received training in international criminal law and humanitarian law and have supported the trial of complex international crimes including genocide, war crimes and crimes against humanity. Rwandan law provides for the independence of the judiciary and fair trial for the accused. Rwanda has also put in place mechanisms for the protection of witnesses, including investments in video-link technology so as to facilitate the testimony of witnesses who are unwilling or unable to travel to Kigali to give evidence. However, as we saw earlier, these developments fell short of the standard required by the ICTR Judges for the transfer of cases from the Tribunal. Therefore, as a direct response to the judicial decisions delivered at the ICTR, and determined to ensure that at least some senior perpetrators of the genocide are tried in Rwanda, the Government in Kigali embarked upon a process of legislative review and law reform geared towards meeting the international standards advocated by the ICTR judges.64 First, in an attempt to address the judicial concerns about the penalty structure and conditions of detention for transferees, Rwanda further amended

63 Jesse Melman, “The Possibility of Transfers (?): A Comprehensive Approach to the International Criminal Tribunal’s Rule 11 bis to permit Transfer to Rwandan Domestic Courts”, 79 Fordham L. Rev. 1271 (2010), at 1277 where he notes that not a single court was left operating in the immediate aftermath of the genocide, and that of approximately 800 lawyers and Judges in Rwanda before the genocide, only forty were alive when the RPF assumed power. 64 William Burke-White, supra note 12, where he discusses the influence of Rule 11 bis of the ICTY RPE on the creation of the War Crimes Chamber in the Bosnian Courts and other improvements to the national judiciary. For Burke-White, the enactment of Rule 11 bis at the ICTY and the prospect of trying senior perpetrators of war crimes, served as an incentive for improvements to be made to the Bosnian legal and judicial systems. See also Melman, “Possibility of Transfers?”, supra note 56, at p1293: “The government of Rwanda implemented Organic Law No. 11/2007 (Transfer Law) as part of a continuous effort to align Rwandan law dealing with transfer cases from the ICTR with the ICTR Statute itself in order to facilitate the successful transfer of cases from the ICTR to Rwandan courts. . . . Since the enactment of the Transfer Law, the [Government of Rwanda] has continuously written and updated legislation in response to the ICTR’s denial of referrals.” transfer of cases under the jurisprudence of the ictr 429 the Abolition of Death Penalty Law to exclude life imprisonment in isolation from those cases transferred from the ICTR.65 It would be recalled that while the Transfer Law stipulates a maximum penalty of life imprisonment for cases transferred from the Tribunal, the Death Penalty Abolition Law had specified life imprisonment in solitary confinement as the applicable punishment for, inter alia, serious international crimes.66 The 2008 amendment of the Death Penalty Abolition Law was therefore necessary in order to address the perceived ambiguity in the penalty structure for cases transferred to Rwanda. In the Uwinkindi referral decision, as subsequently affirmed by the Appeals Chamber, the Tribunal considered these developments in Rwandan law and concluded that “the current penalty structure of Rwanda is adequate as required by the jurisprudence of the Tribunal as it no longer allows for imposition of the death penalty or life imprisonment with solitary confinement. The Chamber is satisfied that the ambiguities which existed in previous Rule 11 bis applications regarding the nature and scope of the sentence for accused persons in cases referred to Rwanda have been adequately addressed by Rwanda.”67 In other words, the detention conditions and the penalty structure in Rwanda, which form part of the country’s legal system for the purposes of Rule 11 bis analysis, had now sufficiently evolved to the extent that they no longer impeded referrals to Rwanda. This was an important advance. One only has to consider that, about twenty years earlier, the country had cast the sole negative vote against the Security Council resolution which established the Tribunal precisely because it objected to the penalty structure applicable under the ICTR’s statute.

65 Organic Law No. 66/2008 dated 21 November 2008, which preserves the abolition of the death penalty in Rwanda, but adds that “life imprisonment with special provisions . . . shall not be pronounced in respect of cases transferred to Rwanda from the International Criminal Tribunal for Rwanda and from other States . . .” 66 Transfer Law, Article 21: “Life imprisonment shall be the heaviest penalty imposed upon a convicted person in a case transferred to Rwanda from ICTR.” Death Penalty Abolition Law, Article 4 states inter alia: “Life imprisonment with special provisions is imprisonment with the following modalities . . . 2. A convicted person is kept in isolation. Article 5 provides inter alia, that crimes of genocide and crimes against humanity are punishable by life imprisonment with special provisions. 67 The Prosecutor v. Jean Uwinkindi, Case No. ICTR-2001-75-Rule 11 bis, “Decision on the Prosecutor’s Request for Referral to Rwanda”, 28 June 2011, para. 51. See also The Prosecutor v. Bernard Munyagishari, Case No. ICTR-2005-89-Rule 11 bis, “Decision on the Prosecutor’s Request for Referral of the Case to the Republic of Rwanda”, 6 June 2012, para. 85, holding that “Rwandan laws governing detention incorporate relevant international standards.” 430 marong and jalloh

Concern about the availability of defence witnesses, both those based in Rwanda and outside, was another important ground on which previous ICTR Trial and Appeal Chambers denied the Prosecutor’s referral requests. In the Uwinkindi case, this point was brought into sharp focus when the defence filed forty-nine affidavits from its potential witnesses, which showed that most of the witnesses were unwilling to testify in Rwanda for fear that they may be prosecuted under Rwanda’s genocide-denial laws.68 Others expressed fear that they may be abducted or killed, or that their family members may face repercussions. In addressing these concerns, the Trial Chamber noted that the Transfer Law had been amended in 2009 to enhance the immunity provisions for witnesses who testify in referred cases.69 It noted that these additional immunity provisions supplemented the already extensive immunities contained in Article 14 of the Transfer Law.70 For these reasons, the Chamber expressed the view that “the immunities and protections provided to the witnesses under the Transfer Law are adequate to ensure a fair trial of the accused before the Rwandan [courts].”71 While noting that the immunity provisions were a step towards allaying the fears of defence witnesses, the Tribunal went beyond the developments in the letter of the law. It noted that those developments are complemented by other institutional advances, including the creation of a new Witness Protection Unit (WPU) within the judiciary, to address concerns that the previous Victims and Witnesses Support Unit (VWSU) was managed by the office of Rwanda’s Prosecutor General. In the Judges’ view, the new WPU provided an additional layer of protection for witnesses who testify in transferred cases. These protections would be enhanced by the fact that WPU would ultimately benefit from oversight by the Rwandan judiciary.72

68 Uwinkindi TC Decision, paras. 70–71, 89–90. 69 See Organic Law No. 03/2009 of 26 May 2009 which amends Article 13 of the 2007 Transfer Law by adding the following provision: “Without prejudice to the relevant laws on contempt of court or perjury, no persons shall be criminally liable for anything said or done in the course of a trial.” 70 Article 14 of the 2007 Transfer Law provides, inter alia, that “All witnesses who travel from abroad to Rwanda to testify in the trial of cases transferred from the ICTR shall have immunity from search, seizure, arrest or detention during their testimony and during their travel to and from the trials.” 71 Uwinkindi TC Decision, para. 90. See also Munyagishari TC Decision, para. 117: “. . . following the amendments to the Transfer Law in 2009 and improvements to the witness protection services, the Chamber is satisfied that there now exist adequate safeguards to address the fears of witnesses and increase the likelihood of their appearance.” 72 Munyagishari TC Decision, paras. 107–108. The WPU was created by an ordinance of the President of the Supreme Court of Rwanda in December 2008, by which he called for transfer of cases under the jurisprudence of the ictr 431

As regards witnesses living abroad and their fear of prejudice should they travel to Rwanda to testify in referred cases, the Tribunal noted that Rwanda had taken steps to introduce alternative methods to facilitate the testimony of such witnesses and allay any fears they may have regarding travel to Rwanda. In this regard, the 2009 amendment to Article 14 of the Transfer Law now introduced additional methods for recording the evidence of reluctant or unwilling witnesses. These include taking such evidence by way of a deposition in Rwanda or a foreign state, or by a judge sitting in a foreign state, and as we know already, by means of a video-link connection.73 In addition, a draft Organic Law on the Organization and Functioning of the Judiciary provided for panels of Judges for transferred cases to include judges from foreign or international courts.74 With respect to the issue of working conditions for the defence, it is recalled that the ICTR Judges had expressed concern that defence teams could not obtain documents needed for the preparation of their cases, and that they encountered problems meeting with potential witnesses detained in Rwanda. Moreover, the arrest and detention of at least two private defence team members75 from the Tribunal, added to the perceived concerns about the ability of the defence to operate effectively in Rwanda. As part of its taking up of these concerns, the Government of Rwanda argued, inter alia, that “there is not a single case where a defence team member or witness has been charged with a crime under Article 13 for acts or words relating to the investigation or trial of a criminal case.”76 Rwanda further noted that proceedings against Erlinder for genocide denial had been terminated and gave assurances to the trial chamber that neither accused persons, nor their witnesses or counsel would be arrested, detained or tried for anything done or said in the course of their work. Without going into the factual circumstances of the individual cases referred to by the defence, the Chamber found that there had been instances of harassment, threats, or even arrest of defence team members representing

the establishment of a witness protection unit in the Registries of the High Court and Supreme Court so as to protect witnesses under Article 14 of the Transfer Law. 73 Article 3, Organic Law No. 03/2009. 74 Uwindkindi Referral Decision, para. 114, citing Article 13 of the Draft Organic Law establishing the Organization, Functioning and Jurisdiction of the Supreme Court (2008). 75 Defence Counsel Peter Erlinder and Defence Investigator Nshogoza were arrested and detained in Rwanda. Erlinder was subsequently released after proceedings for genocide denial were terminated against him. Nshogoza was tried and convicted for attempted interference with witnesses and genocide denial. See Uwinkindi TC Decision, paras. 154– 156 discussing the arrest of Erlinder and Nshogoza. 76 Uwinkindi, TC Decision, para. 154 432 marong and jalloh accused charged with genocide. However, in a dramatic shift in judicial thinking at the ICTR, the Trial Chamber observed that should such situations arise in connection with a referred case, the Defence teams will have an explicit basis to refer them to the Rwandan Supreme Court or High Court, which would have an obligation to investigate the claims. In addition, the Trial Chamber held that should defence counsel be prevented from effectively carrying out their duties, the matter could be dealt with by the monitoring mechanism for referred cases, and could lead to revocation of the referral.77 The shift in judicial attitude was an important expression of confidence by the international Tribunal in the ability of the Rwandan judiciary to not only administer even-handed justice in complex international criminal trials, but also to exercise judicial supervision and oversight over the administrative structures associated with the criminal justice process. Considering that the Munyakazi Trial Chamber had gone to the extent of expressing doubts about the independence and impartiality of the Rwandan judiciary just a few years earlier,78 this expression of confidence marked an important judicial endorsement of legal developments in Rwanda. While the Judges acknowledged that working conditions for the defence may still be difficult in Rwanda, they also found that the guarantees offered by the Transfer Law,79 including immunity from arrest and detention, the ability to work freely in Rwanda, and undertakings by the Government to cooperate in full with the defence, had not been tested, because no case had been transferred to Rwanda. Put differently, difficulties that might be associated with the work of the defence teams in Rwanda are no longer sufficient, by them-

77 Uwinkindi, TC Decision, para. 159. 78 Canter, “The False Hope of Rule 11 bis”, supra note 22 for a critique of the Munyakazi Trial Chamber Decision. She notes, inter alia, that the Chamber’s critique of Rwanda’s single- judge criminal trials was misguided as there was no evidence before it to show that such a system was inherently inconsistent with an independent judiciary. “By failing to point to specific examples or rely upon statistics, the Munyakazi Chamber opens itself up to claims that it is paternalistic and possibly, even prejudiced. Throughout this section of the decision, the underlying message is that there is a different standard for African nations. . . . the ICTR has already transferred two defendants to France, where their cases will be heard by an individual judge. When it comes to Rwanda, however, the Chamber expects something more. One Rwandan judge is simply not enough. In order for a Rwandan court to be fair and free from outside interferences, it is necessary for there to be multiple judges, as though, through sheer numbers, the Africans may be able to prevail against an interfering government.” 79 Article 13 of the Transfer Law was amended in 2009 to provide that “no person shall be criminally liable for anything said or done in the course of a trial.” transfer of cases under the jurisprudence of the ictr 433 selves, to prevent referral of cases given the various legislative and institutional reforms that Rwanda had introduced with a view to safeguarding the fair trial rights of the accused.80 The Uwinkindi decisions are an example of balanced and sound judicial reasoning. The Judges did not shy away from acknowledging that despite the remarkable advances in Rwanda’s legal framework, there may still be difficulties with respect to trials in Rwanda. However, they hastened to add that these difficulties did not rise to the level that would prevent referral to Rwanda because sufficient judicial oversight and monitoring processes had been put in place to prevent abuse. Considering the previous string of Trial and Appeal Chambers denials of referral requests to Rwanda, it seemed brave and courageous for the Uwinkindi Judges to take this position. Their decision serves as judicial acknowledgement of the fact that no legal system, however well advanced, can provide full-proof protection of all the fair trial rights of the accused. The recent examples of botched lethal injections in the US states of Oklahoma and Ohio, among others, provide a stark reminder of this reality.81 So does the fact that it was initially Western European states, such as Norway and the Netherlands, which are often presumed to have better capacity to prosecute international crimes that in fact failed to qualify for the first transfers of cases from the Tribunal for prosecutions. In the end, implicit in the Judges’ decision is the idea that what is important is to ensure the existence of sufficient legal and institutional mechanisms to provide for and safeguard the rights of the accused, and that violations, whether actual or perceived, would be addressed through a fair and transparent judicial process.

6 Judicial Reticence at the ICC – Is there a Place for Fair Trials in Inadmissibility Determinations?

Although the controlling principles of primacy and concurrent jurisdiction which governed the work of the ICTR on the one hand and complementarity which operates at the ICC differ in important ways, in this penultimate section of the paper, we tease out the implications of the foregoing analysis in terms

80 Uwinkindi, TC Decision, paras. 160–161. 81 Katie Fretland, “Clayton Lockett Writhed and Groaned. After 43 Minutes, he was Declared Dead”, at www.theguardian.com/world/2014/1pr/30/clayton-lockett-oklahoma- execution-witness; See also Death Penalty Information Centre, “Oklahoma Botches Execution of Clayton Lockett”, at www.deathpenaltyinfo.org. 434 marong and jalloh of general lessons that the ICC could have mined – and still may – from the Rule 11 bis case law.82 In this regard, and much as we did earlier on in this chapter for the ICTR section, we must necessarily begin by fleshing out the applicable law. We show that the starting legal point of the ICTR and ICC regimes differ as a matter of law. Nonetheless, we suggest that the principles of complementarity and primacy intersect and meet at some point. We say this because, under both scenarios, an international penal court is asked to determine whether to either transfer a case to a State with which it shares concurrent jurisdiction (ICTR) or to relinquish one that it already has taken up to a national jurisdiction (ICC). Intuitively, it is perhaps easier to develop criteria which the national jurisdiction must fulfil in the former instead of the latter instance before accepting to turn over a case. However, because under both circumstances the international judges are the final arbiters of whether to transfer (ICTR) or let go of a case (ICC), we would suggest that imposing a basic due process requirement ought to be integral in all such assessments. The ICTR welcomed that responsibility, as we have shown, through its Rule 11 bis jurisprudence and had the effect of bringing up the standard of criminal justice in Rwandan criminal courts. The ICC seems to have rejected that role, if we go by its findings in the Libya case involving Al-Senussi. Nevertheless, preliminarily, it seems rather ironic that an international court such as the ICC which applies the highest fair trial standards, would fail to be any concerned about the fate of a suspect in a national court who – if tried in its own courtroom – would take for granted basic due process guarantees such as those found in international human rights law and more specifically Articles 55 (rights of persons during an investigation), 66 (presumption of innocence) and 67 (rights of the accused) of the ICC Statute.83 Under the Rome Statute, several provisions govern the relationship between the ICC, on the one hand, and on the other, its States Parties. The preamble of the treaty which has to date been endorsed by 122 countries from all regions of the world, is explicit that states are determined to put an end to the most serious crimes of concern to the international community as a whole through the prosecution of the perpetrators of these serious offenses that threaten the peace and security of humankind. They reaffirmed that these odious crimes must not go unpunished. Consequently, it is the duty of all States to ensure the effective prosecution of the perpetrators by taking the appropriate measures to do so at the national level. However, under the complementarity principle mentioned in the preamble as well as Article 1, and fleshed out in 17 of the

82 Rome Statute of the International Criminal Court (1998). 83 Rome Statute, ibid. transfer of cases under the jurisprudence of the ictr 435

Rome Statute, the ICC exists to act only as a complement not replacement for national criminal jurisdictions. The Court’s first prosecutor, Luis Moreno- Ocampo, hinged his hopes on that provision and suggested that as a consequence of complementarity, the “absence of trials” before the permanent tribunal ought to be the yardstick against which the ICC’s “success” ought to be measured since it would suggest that the national jurisdictions are doing their jobs.84 Given the foregoing, Article 17, which regulates issues of admissibility, provides in essence the default position that the ICC is required to determine a case is “inadmissible” where it is being investigated or prosecuted by a State which possesses jurisdiction unless it is “unwilling or unable genuinely to carry out the investigation or prosecution”; where the matter has already been investigated by a State which has jurisdiction over it and the State has in good faith decided not to prosecute; or the person concerned has already been tried for the same conduct; and finally, where the case is of insufficient gravity to justify further action by the Court.85 The provision goes on to spell out what “unwillingness” and “inability” entails in paragraphs 2 and 3. These standards, which implicitly incorporate the requirement that there be a showing that the proceedings are being conducted independently, impartially and fairly, have been further fleshed out by the ICC trial and appeals chambers in the Court’s emerging case law. As a threshold matter, in the ICTR, concurrent jurisdiction and the primacy of the Tribunal enabled it to set out criteria in Rule 11 bis which states must fulfil in order to receive transferred cases. In the ICC, because of complementarity and the above provisions governing admissibility in the Statute, it is in effect the international court that has to show the presence of certain conditions before it can properly seize itself of jurisdiction. Under this scheme, the natural forum can initiate action and thus debar the Court from becoming involved (so long as it can prove that it is genuinely investigating or prosecuting the same case). That notwithstanding, once the ICC gets involved in a situation country, national jurisdictions may find themselves in a position similar to that of Rwanda where for various reasons they may wish for the ICC – already having asserted its jurisdiction – to step aside due to their interests in pursuing investigations or prosecutions of a given situation and even case. That was the scenario in which both Kenya and Libya found themselves before they launched

84 See Luis Moreno-Ocampo, Statement Made at the Ceremony for the Solemn Undertaking of the Chief Prosecutor of the International Criminal Court, The Hague, 16 June 2003. 85 See Rome Statute of the International Criminal Court (1998). 436 marong and jalloh admissibility challenges. For this reason, in such circumstances, there is nothing wrong with the judges using their position to engage in a kind of dialogue with the concerned State challenging admissibility in order to establish basic due process requirements that it must meet as part of the proof of the willing and able prongs of Article 17 before they would direct the Prosecutor to relinquish the relevant case. Assuming the ICC were to set a viable test and the concerned state willingly plays ball to bring itself into compliance, the result would be to bring up the level of the national legal system under consideration much in the same way that the ICTR was able to incentivize Rwanda to improve its criminal justice system before permitting the State to receive the cases of transferred suspects. A key question arises whether, as part of the complementarity- inadmissibility assessment, the ICC judges must statutorily consider – when confronted with admissibility challenges – the nature and fair trial conditions of the national legal system that is seeking to displace the prosecutor’s and consequently the ICC’s jurisdiction. This point, which has been debated by some scholars and is a live one in several matters before different chambers,86 seems to not yet be firmly settled in the Court’s case law since the trial and appeals judges differ on the issue. We illustrate this by reference to Libya’s admissibility challenge in relation to Al-Senussi, the first case ever, where the ICC ruled in favour of a national legal system’s retention of a matter that would otherwise be tried in The Hague. In its inadmissibility discussion, both Libya and the ICC judges considered that the national legal system must fulfil certain criteria as part of the two-part Article 17 test in order for there to be a finding that the case ought to remain at the national level instead of the Court. It is interesting that several factors, including fairness of the trial, which component included a general discussion of the state of the country’s legal system, the particulars of whether the same suspect was under investigation and for which crimes and whether he had access to defence counsel and witnesses were part of the Trial Chamber’s

86 See, for example, Kevin Jon Heller, “The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statue on National Due Process”, 17 Criminal Law Forum 255 (2006) (arguing that the unwilling or unable standard in Article 17 requires the ICC to defer to the State no matter how unfair its proceedings may be). Contra F. Gioia, “State Sovereignty, Jurisdiction, and ‘Modern’ International Law: The Principle of Complementarity in the International Criminal Court”, Leiden Journal of International Law 19 (2006) 4, 1095 at 1110– 1113; Jonathan O’Donohue and Sophie Rigny, “The ICC must consider fair trial concerns in determining Libya’s application to prosecute Saif al-Islam Gaddafi nationally”, EJIL:Talk! http://www.ejiltalk.org/the-icc-must-consider-fair-trial-concerns-in-determining-libyas- application-to-prosecute-saif-al-islam-gaddafi-nationally/ (18 June 2012). transfer of cases under the jurisprudence of the ictr 437 evaluation.87 All these types of factors were also considered by the ICTR’s trial chambers in the cases discussed above. In that situation, following a successful finding in favour of the national authorities that the case against the suspect is inadmissible before the ICC and can thus remain in Libya, the defence for Mr. Al-Senussi appealed. They argued that the Article 17(2) “unwillingness” requirement that the proceedings be impartial and independent must be reviewed in light of international standards of due process which mandate humane and fair treatment of the suspect.88 They catalogued a range of rights allegedly denied, including the right of the suspect to consult with counsel. In their submission, which we believe is the correct one, such a requirement is integral to a proper understanding of “justice” for the purposes of international law and would necessarily entail an assessment of whether in the given case (as was here in issue for Libya) had treated the suspect (Mr. Senussi) consistently with internationally recognized human rights norms and in accordance with Libyan law.89 But, although the trial chamber appeared sympathetic to this view, the Appeals Chamber rejected the defence argument that a State should be found to be unwilling genuinely to carry out an investigation or prosecution for failing to respect the fair trial standards guaranteed the suspect.90 The appeals judges reasoned that the Court was not created to serve as an international human rights court, which would sit in judgment over domestic legal systems to ensure their systems are compatible with such standards, and that acceptance of the defence argument would bring it closer to that. The judges argued that, besides the text of Article 17, the context, object and purpose of the provision, as well as its drafting history, demonstrated that human rights principles were not per se determinative of admissibility.91 In our view, although the ICC Appeals Chamber is at first blush correct in its textual analysis, it focused too narrowly on the forest and lost sight of the trees. Put differently, even if it is correct that the letter of the Rome Statute might impel such a conclusion, the spirit of the statute and its purpose and the

87 Prosecutor v. Saif Al-Islam and Abdullah Al-Senussi, ICC, Pre-Trial Chamber, “Decision on the Admissibility of a Case” 11 October 2013. 88 Prosecutor v. Saif Al-Islam and Abdullah Al-Senussi, ICC, Appeals Chamber, “Judgment on the appeal of Mr. Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled “Decision on the admissibility of the case against Abdullah Al-Senussi”, 24 July 2014, paras. 205–210. 89 Ibid. 90 Ibid. at paras. 213–223. 91 Ibid. at paras. 224–231. 438 marong and jalloh experiences of the ICTR in the approach to Rule 11 bis suggests otherwise. Of course, in fairness to the Appeals Chamber, its careful wording in some parts of the decision did not appear to totally forego factoring into admissibility determinations the fair trial concerns. For example, in extreme situations where a trial is but only a prelude to an execution, the Al-Senussi appeals judgment leaves open the possibility of a finding of inadmissibility premised on the understanding that such a process does not meet basic requirements.92 That said, it can be argued that the Al-Senussi inadmissibility finding was a missed opportunity to explicitly invoke and learn from the lessons of Rule 11 bis to notch up the due process standards that a national jurisdiction such as Libya must meet to qualify for a finding that it can retain an ICC case. For, as the judges themselves conceded, it is possible to, in the future, have even more out- rageous situations where it becomes apparent to all that the rights of a suspect would be violated so terribly by a national legal system that the Court should not accept that the person is being genuinely investigated or prosecuted or for that matter even being brought to justice.93

7 Conclusion

The jurisprudence on referral of cases to Rwanda, illustrates how international justice institutions, especially international criminal tribunals, could exert what one scholar calls “norm leadership” and positively influence domestic legal systems.94 While the principal actors in this process are international judges, a large number of other actors including states and non-state actors such as professional associations of lawyers and NGOs, play a critical complementary role as norm entrepreneurs before international courts. It is the dis- cursive processes by these various actors that provided the raw material for the judicial decisions in the referral cases, which, in turn, influenced the legal developments and institutional design measures that cumulatively convinced the Judges that Rwanda was now ready to receive international crimes for prosecution in its domestic courts. It is our view that the ICTR referral experience could bear useful lessons for the ICC, as that court continues to elaborate the elements of the complementarity principle under the Rome Statute. To conclude, we recall William Burke-White’s observation that:

92 Ibid. at para. 230. 93 Ibid. at para. 231. 94 Burke-White, supra note 12, at 307. transfer of cases under the jurisprudence of the ictr 439

a jurisdictional relationship of complementarity, in which the international tribunal can only intervene where national institutions fail to undertake genuine prosecutions, may encourage national actors to pursue genuine investigations and prosecutions of their own. As the determination of whether a national prosecution was, in fact, genuine rests with the international tribunal, the international tribunal is in a position to lead norms for genuine prosecutions. To the degree that domestic actors find it in their own self-interest to enhance the capacity and legitimacy of domestic institutions or have domestic proceedings recognized as “genuine”, they may seek to adopt and internalize those international norms on which the international tribunal will determine whether a domestic prosecution was, in fact, genuine.

Interestingly, it appears, the ICC seems to be choosing to not embark upon a path of “norm leadership” that would raise the bar that national jurisdictions must comply with before they could wrestle cases away from the international tribunal. Yet, as the discussion of the ICTR cases show, that Tribunal was able to do so in the Rule 11 bis cases. In the result, because the Appeals Chamber did not foreclose a different finding on the facts of a different case, it may be too early to predict the full implications of the ICC judicial position. Nevertheless, if the admissibility position vis-à-vis fairness of domestic trials does not change, the long term effect might be for the Court to have lesser system- wide impacts on fair trial rights and their development at the national level when they concern cases of admissibility in relation to the investigation or prosecution of genocide, crimes against humanity and war crimes, and when in force, the crime of aggression. chapter 21 Justice Hassan Bubacar Jallow’s Contribution to International Criminal Justice An OTP Perspective

Alex Obote-Odora

1 Introduction

Justice Hassan Bubacar Jallow is the first independent and separate Chief Prosecutor of the International Criminal Tribunal for Rwanda (ICTR).1 As Chief Prosecutor, his contribution to international criminal justice includes legal publications and conference papers, bi-annual reports to the United Nations Security Council, and submissions before ICTR Trial and Appeals Chambers, as well as presentations at the Colloquium of International Prosecutors (the Colloquium) which he founded in 2004 and has since evolved into an annual gathering of International Prosecutors.2 The ICTR is a recent creation. Established in 1994, the ICTR had no meaningful procedural rules as a reference to guide investigators and prosecutors of serious international crimes. Its sister Tribunal, the ICTY, established a year earlier, faced a similar situation. The judges of the two Tribunals separately drafted and adopted Rules of Procedure and Evidence (RPE), but the RPE of

1 The first three joint ICTY/ICTR Chief Prosecutors were Judge Richard Goldstone (1994–1996) (South Africa); Judge Louise Arbour (1996–1999) (Canada) and Ms. Carla Del Ponte (1999– 2003) (Switzerland). Technically, the first ICTY Prosecutor was Mr. Ramon Escobar-Salom (Venezuela). However, he resigned before taking up his post to become Venezuela’s Attorney General. See M. Cherif Bassiouni & Peter Mauikas, The Law of the International Criminal Tribunal for the former Yugoslavia 211–12 (Transnational Publishers, Inc., 1996). 2 On the Colloquium of international prosecutors, see Colloquium of Prosecutors of Int’l Crim. Trib., The Challenges of International Criminal Justice (Leigh Swigart, ed., International Criminal Tribunal for Rwanda & Brandies University USA, 2005), available at http://www .brandeis.edu/ethics/pdfs/ICTR_Report.pdf. The first Colloquium was held on November 24–25, 2004 at Arusha, the United Republic of Tanzania. The Prosecutors at the first Colloquium were: Louis Moreno Ocampo of the ICC, David Crane of the SCSL, Carla Del Ponte of the ICTY and host, Hassan Bubacar Jallow of ICTR.

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_022 jallow’s contribution to international criminal justice 441 the ICTY and ICTR are substantially similar except for a few minor differences such as procedural rules for referral of indictments to states at the ICTY which are handled by a “Referral Chamber” while at the ICTR by a “Trial Chamber”.3 The RPE at the time of their adoption were untested and prosecutors at the ICTY and ICTR had no prior legal precedents on prosecutions of crimes before international tribunals except the scanty legal principles applied by the International Military Tribunal (IMT)4 and the International Military Tribunal for the Far East (IMTFE)5 after World War II. In this chapter, I discuss practical and procedural contributions of Prosecutor Jallow in the conduct of cases before the ICTR. The paper is in five parts. Part 1 examines the Prosecutor’s challenges to practical application of Rules 11 bis. It also discusses problems faced by the Prosecutor in the adoption of Rule 71 bis of the ICTR RPE. The two Rules address new situations not con- templated in the original RPE adopted by the ICTR Judges. Part 2 examines the Prosecutor’s policy on application of Rule 94 of ICTR RPE. While use of

3 Rule 11 bis (A) of the ICTY RPE provides: “After an indictment has been confirmed and prior to the commencement of trial, irrespective of whether or not the accused is in custody of the Tribunal, the President may appoint a bench of three Permanent Judges selected from Trial Chambers (hereafter referred to as the “Referral Bench” which solely and exclusively shall determine whether the case should be referred to the authorities of the state.” ICTY RPE 11 bis (A). On the other hand, Rule 11 bis (A) of the ICTR RPE provides: “If an indictment has been confirmed, whether or not the accused is in the custody of the Tribunal, the President may designate a Trial Chamber which shall determine whether the case should be referred to the authorities of the state.” ICTR RPE 11 bis (A). A fundament difference, apart from the nametag, is that at the ICTY, the President selects judges of a “Referral Bench” from among the permanent judges. However, at the ICTR, both permanent and temporary, ad litem, judges are eligible for appointment by the President to sit as members of a Trial Chamber considering a referral application. In this article, the terms “Referral Bench,” “Referral Chamber” and “Trial Chamber” are used interchangeably as they refer to a chamber at the ICTY or ICTY responsible for determination of a referral of an indictment to authorities of a state. 4 See International Military Tribunal (Nuremberg): Judgement and Sentences, 41 Am. J. Int’l L. 217 (1947). 5 B. V. A. Röling & Antonio Cassese, The Tokyo Trial and Beyond: Reflections of a Peacemaker (Polity Press, 1994). Pritchard also provides a review of jurisprudence on the trial of Japanese under the national military laws of victorious Allied Powers. See R. J. Pritchard, “War Crimes Trial in the Far East”, in Cambridge Encyclopaedia of Japan 107 (R. Bowring & P. Kornick eds., Cambridge University Press, 1993). 442 obote-odora judicial notice is not new in international criminal prosecutions, its impact on the ICTR proceedings has significantly contributed to judicial economy. In Part 3, the modalities adopted for the protection of victims and witnesses of rape and sexual violence, which includes use of Rules 92bis and 94 ICTR RPE is examined. Part 4 provides an overview of reforms of the OTP and concluding remarks are in the last part.

2 An Overview of Rules 11 bis and 71 bis of the ICTR RPE

The objectives of Rules 11 bis and 71 bis of the ICTR RPE were to implement Security Council resolutions on the Completion Strategy.6 Resolution 1503(2003) directed the Prosecutor to take all possible measures to complete investigations by the end of 2004, to complete all trial activities by the end of 2008, and to complete all work in 2010.7 And, Resolution 1534(2004)8 directed the Prosecutor to bring fugitive Félecien Kabuga for trial at the ICTR.9 The resolution also called upon the Prosecutor to review the caseload with a view to identifying cases that should be tried at the ICTR and those for transfer to national jurisdictions.10 The two resolutions created new problems for the Prosecutor, the Chambers and the Registry in managing cases before the ICTR.11 However, the focus here is on how the Prosecutor addressed problems that relate to his mandate. The ICTR Prosecutor, like other subsequent International Prosecutors, and unlike their domestic counterparts, has no independent police force, or other law enforcement agencies to provide administrative and legal support during

6 S.C. Res. 1503, UN Doc. S/RES/1503 (Aug. 28, 2003); S.C. Res. 1534, UN Doc. S/RES/1534 (March 26, 2004). 7 S.C. Res. 1503, supra note 6, at ¶ 7. 8 S.C. Res. 1534, supra note 6. 9 See id. at ¶ 2. 10 S.C. Res. 1503, supra note 6, at ¶ 4. 11 See Cecile Aptel, “Closing the U.N. International Criminal Tribunal for Rwanda: Completion Strategy and Residual Issues”, 14 New Eng. J. of Int’l & Comp. L. 169 (2008); J. P. Fomete, “Countdown to 2010: A Critical Overview of the International Criminal Tribunal for Rwanda”, in From Human Rights to International Criminal Law 345–400 (E. Decaux, A. Dieng & M. Sow eds., 2007); Daryl A. Mundis, “The Judicial Effects of the “Completion Strategies” on the Ad Hoc International Criminal Tribunals”, 99 Am. J. Int’l L. 142, 147 (2005); Laura Bingham, “Strategy or Process – Closing the International Criminal Tribunal for former Yugoslavia and Rwanda”, 24 Berkeley J. Int’l L. 687, 706 (2006). jallow’s contribution to international criminal justice 443 investigations or in enforcement of court decisions.12 He depends on cooperation of member states as stipulated in Chapter VII of the U.N. Charter. Investigations of the Rwanda genocide and subsequent trials at the ICTR demonstrated that most perpetrators were senior political and military leaders. The crimes for which they were found responsible were committed in public and in the presence of many witnesses. These leaders were responsible for formulating the genocidal policies, as well as planning, directing, ordering, instigating or aiding and abetting acts committed by their subordinates.13 As superiors, the Prosecutor had to establish the existence of a nexus between the acts of the political and military leaders, and the conduct of a subordinate, otherwise, as superiors, they will not be held responsible. Consistent with the principle of prosecutorial discretion, the Prosecutor selected cases, out of many suspects, for investigations,14 identified accused to be tried at the ICTR,15 and those for transfer to national jurisdiction.16 Rules 11 bis and 71 bis were then respectively used to transfer cases to national jurisdictions and to preserve evidence for future trials.

2.1 Management and Applications of Rule 11 bis While the adoption of Rule 11 bis of ICTR RPE was uncomplicated, its application posed serious problems in practice. At the time [that the Rule came into force and when the Prosecutor initially attempted to invoke it before the Trial Chambers], Rwandan law did not meet minimum international standards for the prosecution of serious international crimes. The deficit in the Rwandan law has been discussed by, among others, Professor Bohlander.17 There were

12 Louise Arbour, “The Prosecution of International Crimes: Prospects and pitfalls”, 1 Wash. U. J.L. & Pol’y 13–25 (1999). 13 Carla Del Ponte, “Prosecuting the Individuals Bearing the Highest Responsibility”, 2 J. Int’l Crim. Just. 516 (2004). 14 Hassan B. Jallow, “Prosecutorial Discretion and International Criminal Justice”, 3 J. Int’l Crim. Just., 145 (2005). 15 A. Obote-Odora, “Case Selection and Prioritization Criteria at the International Criminal Tribunal”, in Criteria for Prioritizing and Selecting Core International Cases; Forum for International Criminal and Humanitarian Law 41–54 (Morten Bergsmo ed., 2009). 16 While the Security Council, by Resolution 1534 (2004), directed that Felecien Kabuga be tried at the ICTR, the Prosecutor later identified fugitives Augustine Bizimana and Protias Mpiranya for Arusha trial alongside Kabuga. 17 Michael Bohlander, The Transfer of Cases from International Criminal Tribunals to National Courts, UNICTR (Nov 30, 2004), available at http://www.unictr.org/News/tabid/191/P/70/ Default.aspx?id=3 (last visited Feb. 28, 2014). 444 obote-odora also other critics of Rule 11 bis.18 However, there were commentators including the editors of this volume who, while critical, did support Rule 11 bis.19 Prior to filing applications for transfer of cases to Rwanda, the ICTR Prosecutor addressed the deficit in Rwanda’s law. He collaborated with the ICTR President and Registrar to support the Rwandan Government with capacity-building. The ICTR support included extending legal education to the judiciary, prosecution, defense and their respective support staffs.20 In the meantime, the Prosecutor filed an application for the transfer of Michael Bagaragaza to Norway. It was denied. The Prosecutor then filed a second application for transfer to The Netherlands. It was also denied, as also discussed by Alhagi Marong and Charles Jalloh in Chapter 20.21 The ICTR Trial Chambers denied the Prosecutor’s request for transfer of Michael Bagaragaza to Norway and The Netherlands because their national laws did not have provisions for prosecution of genocide, crimes against humanity and war crimes. Instead, the Norwegian and Dutch laws would

18 Jennifer Wren Morris, “The Trouble with Transfers: An analysis of the Referral of Uwinkindi to the Republic of Rwanda for Trial”, 90 Wash. U. L. Rev. 505 (2012). At a court in the United Kingdom, the Defence Counsels were very critical of Rwanda judicial system in general and its criminal law and procedure, in particular. See William A. Schabas, Presentation, Transfer and Extradition of Genocide Suspects to Rwanda, London Conference on The Extradition of Rwanda Genocide Suspects to Rwanda: Issues and Challenges (July 1, 2008). 19 William A. Schabas, “International Criminal Tribunals: A Review of 2007”, 6 Nw J. Int’l Hum. Rts. 382, 388–98 (2008). A. Marong, C. Jalloh & D. M. Kinnecome, “Concurrent Jurisdiction at the ICTR: Should the Tribunal Refer Cases to Rwanda?”, in Human Rights to International Criminal Law Studies in honour of an African jurist: Judge Laity Kama 59–201 (Emmanuel Decaus ed., 2007); A Obote-Odora, “Transfer of cases from the International Criminal Tribunal for Rwanda to Domestic Jurisdictions”, 5 Afr. J. Legal Stud. 147 (2012). 20 Adama Dieng, “Capacity-Building Efforts of the International Criminal Tribunal – A Different Kind of Legacy”, 9 Nw J. Int’l Hum. Rts. 403 (2011). 21 Prosecutor v. Bagaragaza, Case No. ICTR-2005-86-R11bis, Decision of the Trial Chamber III on the Prosecution Motion for Referral to the Kingdom of Norway (May 19, 2006). The Prosecutor’s appeal was denied. See Bagaragaza, Case No. ICTR-05-86-AR11bis, Decision of the Appeals Chamber on Rule 11 bis (Aug. 30, 2006). A second application seeking the transfer of Bagaragaza to The Netherlands was also denied. See Bagaragaza, Case No. ICTR-2005-86-11bis, Decision of the Trial Chamber on the Prosecutor’s Request for Referral of the Indictment to the Kingdom of Netherlands (April 13, 2007). The Prosecutor then applied for a revocation of the referral. The application was granted. See Bagaragaza, Case No. ICTR-2005-86-11bis, Decision of the Trial Chamber on Prosecutor’s Extremely Urgent Motion for Revocation of the Referral to the Kingdom of the Netherlands pursuant to Rule 11 bis (F) and Rule 11 bis (G) (Aug. 17, 2007). jallow’s contribution to international criminal justice 445 subject the transferee to trial for minor offences of culpable homicide. Upon conviction, his sentence, compared to accused prosecuted and convicted at the ICTR or Rwanda, would be relatively lower as well. The Prosecutor made a third request to transfer case files of two fugitives already resident in France. The requests were granted.22 However, all subsequent applications for transfer to Rwanda were denied.23 In rejecting requests for transfer of cases to Rwanda, the Appeals Chamber (AC) identified two flaws. First, Rwandan laws provide for life imprisonment in solitary confinement. Such punishments are inhumane and degrading. Second, the political environment in Rwandan was not conducive for witnesses from inside or outside the country to testify on behalf of the Defense.24 Subsequent AC decisions confirmed the Trial Chamber’s (TC) finding25 but did not rely on this point to justify the refusal of the referral.26

22 Prosecutor v Munyeshyaka, Case No. ICTR-2005-87-I, Decision of the Trial Chamber on the Prosecutor’s Request for Referral of Munyeshyaka’s Indictment to France (Nov. 20, 2007); Prosecutor v Bucyibaruta, Case No. ICTR-2005-85-I, Decision of the Trial Chamber on the Prosecutor’s Request for the Referral of Laurent Bucyibaruta’s Indictment to France (Nov. 20, 2007). 23 Prosecutor v Munyakazi, Case No. ICTR-97-36-R11bis, Decision of the Trial Chamber on the Prosecutor’s Request for Referral to the Republic of Rwanda (May 28, 2008). The Prosecutor’s appeal was denied. See Munyakazi, Case No. ICTR-97-36-R11bis, Decision of the Appeals Chamber on the Prosecutor’s Appeal against Decision on Referral under Rule 11 bis (October 8, 2008); Prosecutor v Kanyarukiga, Case No. ICTR-2002-78-R11bis, Decision of the Trial Chamber on the Prosecutor’s Request for Referral to the Republic of Rwanda (June 6, 2008). The Prosecutor’s appeal was denied. See Kanyarukiga, Case No. ICTR-02- 78-R11bis, Decision of the Appeals Chamber on the Prosecutor’s Appeal against Decision on Referral under Rule 11 bis (Oct. 30, 2008); Prosecutor v Gatete, Case No. ICTR-2000-61-I, Prosecutor’s Request for the Referral of the Case of Jean Baptiste Gatete to Rwanda pursuant to Rule 11 bis of the Tribunal’s Rule of Procedure and Evidence (Nov. 28, 2007). The Prosecutor did not appeal; Prosecutor v. Hategekimana, Case no. ICTR-00-55B-R11bis, Decision of the Trial Chamber on Prosecutor’s Request for Referral of the Case of Idelphonse Hategekimana to Rwanda, (June 19, 2008). On appeal, the Prosecutor’s motion was dismissed. See Hategekimana, Case No. ICTR-00-55B-R11bis, Decision of the Appeals Chamber on Prosecutor’s Appeal for Request under Rule 11 bis (Dec. 4, 2008). 24 See Prosecutor v. Munyakazi, Case No. ICTR-97-36-R11bis, Decision of the Appeals Chamber on the Prosecutor’s Appeal against Decision on Referral under Rule 11 bis (Oct. 8, 2008). 25 See Kanyarukiga, Case No. ICTR-02-78-R11bis, Decision of Appeals Chamber on the Prosecutor’s Appeal against Decision on Referral under Rule 11 bis (Oct. 30, 2008). 26 Id. 446 obote-odora

Confronted with these rejections, the Prosecutor directed the Chief of Appeals and Legal Advisory Division (ALAD) to review the Rule 11 bis decisions and make recommendations for the way forward. The Chief of ALAD held several meetings with Senior Appeals Counsels (SAC). They agreed that Rule 11 bis proceedings involve understanding laws of the intended referral states as well as obtaining and perusing laws and materials “foreign” to the Tribunal. It also involves multiple filings by the Prosecution, and responses to various amicus briefs and filings on a country’s readiness and preparedness to afford fair trial and due process. Considering the workload, preparation of Rule 11 bis applications constitute case files similar to other case files that are prepared for trial. After review, ALAD recommended that Rule 11 bis cases be transferred from the Trial Teams to ALAD. The transfer will allow these requests to use a uniform template, and be supervised by senior lawyers who appreciated the complexity of the cases. It was also recommended that the composition of Rule 11 bis teams be expanded to include OTP Rwandan lawyers and investigators. Further, a close working relationship with Rwanda’s Prosecutor General was deemed helpful because collaboration between the two offices would assist Rwanda in addressing factual issues raised by Defense Counsels and other NGOs, including Human Rights Watch, in their respective briefs. These factual allegations are within the knowledge of the Prosecutor General of Rwanda and not of the OTP-ICTR. Finally, ALAD will be in a better position to provide periodical reports on the progress made by the referral state in implementing the referral order as directed by Referral Chamber.27 One of the conditions issued by the Trial Chamber with respect to the two cases transferred to France was for the Prosecutor to appoint monitors who would follow proceedings in court and thereafter report progress to the Prosecutor. The Prosecutor would, in turn, submit a report to the Trial Chamber on the progress of the trial on a three-monthly basis. If the Trial Chamber is not satisfied with the progress of the case, an order for a deferral, after the parties are heard, may be issued and the case returned to the ICTR at Arusha. Both the monitor in France and the Prosecution were not diligent in implementing the order with respect to Munyeshyaka and Bucyibaruta, the two cases transferred to France. The failure on the part of the Prosecution was that no specific lawyer was assigned the responsibility to liaise with the monitors in France. It was recommended that ALAD was best suited to take that responsibility and liaise with the monitors.

27 See ICTY R. 11 bis (A); ICTR R. 11 bis (A), supra note 3. “Referral Chamber” is used interchangeably with “Trial Chamber” in this chapter. jallow’s contribution to international criminal justice 447

After perusing the ALAD report, the Prosecutor directed the Chief of Prosecutions (COP) to comment on it. Thereafter, the Prosecutor accepted the report and approved the transfer of Rule 11 bis cases to ALAD. Chief of ALAD then assigned a Senior Appeals Counsel to take the lead for all Rule 11 bis applications. Based on the new policy, the new Rule 11 bis team proceeded to submit a request for the transfer of Jean-Bosco Uwinkindi to Rwanda. The Referral Chamber granted the request.28 On appeal, it was confirmed.29 However, the transfer of Uwinkindi from the ICTR to Rwanda was stayed until after the President of the Tribunal issued an order on the ICTR monitoring arrangements.30 After the Uwinkindi decisions, the Prosecutor filed several requests seeking orders for the referral of other cases identified for trial in Rwanda, including cases of fugitives still at large. As each application was heard and disposed of, all Rule 11 bis requests, as at December 31, 2013, were granted.31

28 See Prosecutor v. Uwinkindi, Case No. ICTR-2001-75-I, Prosecutor’s Request for the Referral of the Case of Jean-Bosco Uwinkindi to Rwanda pursuant to Rule 11 bis of the Rules of Evidence and Procedure (Nov. 4, 2010). 29 Uwinkindi v. Prosecutor, Case No. ICTR-01-AR11bis, Decision of the Appeals Chamber on Uwinkindi’s Appeal Against the Referral of his case to Rwanda and Related Motions (Dec. 16, 2011). 30 Prosecutor v. Uwinkindi, Case No. ICTR-01-75R11 bis, Order of the Office of the President on The ICTR Monitoring Arrangements (Jun. 29, 2012). 31 Prosecutor v. Munyagishari, Case No. ICTR-2005-89-R11 bis, Decision of the Trial Chamber on the Prosecutor’s Request for Referral of the Case to Rwanda (Jun. 6, 2012). On 3 May 2013, the Appeals Chamber confirmed the Trial Chamber Decision. Prosecutor v. Sikubwabo, Case No. ICTR-95-ID-R11bis, Decision of the Trial Chamber on Prosecutor’s Request for Referral of the Case to the Republic of Rwanda (Mar. 26, 2012); Prosecutor v. Ryandikayo, Case No. ICTR-95-IE-R11bis, Decision of the Trial Chamber on the Prosecutor’s Request for Referral of the Case to the Republic of Rwanda – Rule 11 bis of the Rules of Procedure and Evidence (Jun. 20, 2012); Prosecutor v. Ntaganzwa, Case No. ICTR-96-9-R11bis, Decision of the Trial Chamber on the Prosecutor’s Request for Referral of the Case to the Republic of Rwanda – Rule 11 bis of the Rules of Procedure and Evidence (May 8, 2012); Prosecutor v. Ndimbati, Case No. ICTR-IF-R11bis, Decision of the Trial Chamber on the Prosecutor’s Request for the Referral of the Case of Aloys Ndimbati to Rwanda – Rule 11 bis of the Rules of Procedure and Evidence (Jun. 25, 2012); Prosecutor v. Munyarugarama, Case No. ICTR- 02-79-R11bis, Decision of the Trial Chamber on the Prosecutor’s Request for Referral of the Case to the Republic of Rwanda – Rule 11 bis of the Rules of Procedure and Evidence (Jun. 28, 2012); Prosecutor v. Kayishema, Case No. ICTR-01-67-R11bis, Decision of the Trial Chamber on Prosecutor’s Request for Referral of the Case to the Republic of Rwanda – Rule 11 bis of the Rules of Procedure and Evidence (Feb. 22, 2012). 448 obote-odora

The use of Rule 11 bis to transfer all remaining cases from the ICTR to national jurisdictions is consistent with the objectives of Resolutions 1503 (2003) and 1534 (2004). The transfer of cases to national jurisdictions reduced costs of investigations and trials at the ICTR. It also set a new threshold for prosecution of international crimes by national courts and enhanced open justice and judicial economy. The Prosecutor’s audacity to seek transfer of cases to national jurisdiction in the face of consistent rejections by the Trial and Appeal Chambers is commendable. Despite the success of Rule 11 bis, critics continue to oppose transfer of cases to Rwanda.32 However, from the OTP’s perspective, Rule 11 bis is a positive contribution to international criminal justice. A similar argument has been made by two of the earliest commentators on Rule 11 bis in Chapter 20 of this volume, given the possible lessons for the International Criminal Court.

2.2 Legislative History of Rule 71 bis of the ICTR RPE After a review of the ICTR caseload pursuant to Resolution 1534 (2004), the Prosecutor identified thirteen fugitives. Three, including Kabuga, were ear- marked for trial at the ICTR and the other ten, for transfer to Rwanda. However, it was doubtful whether the three fugitives identified for trial at the ICTR would be arrested before the closure of the Tribunal. The Prosecutor therefore proposed to adopt rules of procedure for preservation of evidence for future trials. Subsequently, the Prosecutor directed Chief of ALAD to prepare a draft Rule 71 bis for that purpose. Rule 71 bis was necessary because even if the fugitives were to be arrested, due to the already long delay of their arrests, credible and relevant evidence may be lost or otherwise become unavailable due to the passage of time or other intervening circumstances. The proposed Rule would record statements from witnesses and ensure that relevant evidence and exhibits are available for use in future trials. An important feature of the proposed Rule 71 bis is that the process is not a trial in absentia. It is intended to provide for a single Judge designated by the ICTR President to receive testimony without making a finding on the credibility of the witnesses or assessing the probative weight of the evidence. It is the responsibility of a Trial Chamber, with the assistance of the visual recording of the depositions presided over by the single Judge, to assess the admissibility and probative weight of evidence taken at the Rule 71 bis hearing. At a Rule 71 bis hearing, a Duty Counsel will represent the indicted fugitive. He shall be entitled to cross-examine prosecution witnesses. If the Defense

32 Nicola Palmer, “Transfer or Transformation? A Review of the Rule 11 bis Decisions of the International Criminal Tribunal for Rwanda”, 20 Afr. J. Int’l & Comp. Law 1 (2012). jallow’s contribution to international criminal justice 449 wishes to preserve their evidence, they could also resort to the process under the same Rule. Further, the Rule shall provide for the protection of the rights of the accused through early appointment of Duty Counsel by the Registrar; prompt and effective disclosure of materials in the actual possession and knowledge of the Prosecutor to Duty Counsel; and the issuance of a Public Notice in states where the accused is believed to be hiding and in neighboring states, informing the accused of the intention to preserve evidence under this Rule. In drafting Rule 71 bis, ALAD assumed that the fugitives or their families are possibly aware that the Tribunal issued arrest warrants in their names. The assumption is based on Rules 60 and 61 of ICTR RPE and the Kabuga Family application, seeking an order to unfreeze Kabuga’s bank accounts.33 The international search for the fugitives for over a decade since the indictments were issued, and media attention given to their names internationally, also makes it safe to assume that the fugitives are aware of the confirmed indictments. During its deliberations, ALAD considered whether, in law, it was possible to preserve evidence for future trials in the absence of an accused considering that the ICTR Statute in absentia prohibits a trial. How should the Prosecutor address allegations that Rule 71 bis is akin to trial in absentia? ALAD was divided on the issue. Those opposed to Rule 71 bis of ICTR RPE argued that the Rule is too close to trial in absentia and may be prone to judicial abuse. The proponents of this view stressed that taking all depositions, or most of it, in the absence of an accused, will have a negative impact as well as deny an accused the right to instruct his lawyers to provide for effective cross- examination of prosecution witnesses. ALAD members supporting Rule 71 bis of ICTR RPE argued that the Rule is similar to that used by investigating judges in continental legal systems. An investigating judge is free to interview as many witnesses as he/she deems necessary. All the interviews conducted by the investigating judge are carried out in the absence of an accused. The investigating judge will not, however, try the case but the case is referred to another judge for trial. Similarly, a judge taking

33 See Miscellaneous – Kabuga Family-01-A, Case No. 01-A, Decision of the Appeals Chamber on Appeal of the Family of Felicien Kabuga Against Decisions of the Prosecutor and President of the Tribunal (Int’l Crim. Trib. for Rwanda Nov. 22, 2002). On 30 September 1999, Prosecutor Del Ponte made a representation to the French authorities requesting them, in furtherance of Article 28 of the ICTR Statute and Rule 40 of ICTR RPE, to seal certain bank accounts of Felicien Kabuga and his family and seize a number of related documents. The French authorities complied with the request and enforced the provisional orders sought by the Prosecutor in November 1999. The Kabuga family appealed to the ICTR Appeals Chamber seeking an order to reverse the decision. The application was dismissed. 450 obote-odora depositions under proposed Rule 71 bis would not be a member of a Trial Chamber hearing the case. Therefore, as long as the safeguards for protecting rights of an accused are built into the Rule, there may be no reasonable grounds for suggesting that the taking of special depositions is similar to a trial in absentia. At another level, ALAD agreed on two points, in case the Rule was adopted. First, that where a warrant of arrest has not been executed, and therefore an accused is still at large, all relevant witness evidence may be deposed. A Duty Counsel will represent the interests of the fugitives at the special deposition. Second, where an accused has been apprehended by a state, but not yet transferred to the Tribunal for whatever legal or administrative reasons, only evidence of witnesses at risk of getting lost, if the deposition is delayed until the transfer, may be deposed. Based on the above understanding, Chief of ALAD submitted the report and Rule 71 bis draft to the Prosecutor. On receipt of the report, the Prosecutor convened a meeting of OTP Senior Management to discuss the proposed Rule 71 bis.34 At the end of the discussion, there were still differences of opinion. In the end, it was left to the Prosecutor to make decision on whether or not to proceed with the proposed Rule amendment. The Prosecutor decided to seek an amendment of the Rule because it is necessary to preserve evidence from witnesses, particularly victims of rape, sexual violence, torture and genocide. Without preservation of evidence, fugitives with resources and contacts will successfully hide from the Tribunal and avoid prosecution. The Prosecutor initiated the amendment process by discussing the proposed Rule 71 bis with the ICTR Coordinating Council.35 With the support of the Coordinating Council, the Prosecutor submitted the proposed Rule to the Chairman of Rules Committee, Judge Vagn Joensen, in April 2009.36

34 Office of the Prosecutor (OTP) Senior Management is chaired by the Prosecutor. The members are the Deputy Prosecutor, Chief of Prosecutions, Chief of ALAD, Special Assistant to the Prosecutor, Chief of Investigations, Senior Trial Attorneys and Senior Appeals Counsels. 35 Rule 23 bis establishes a Coordinating Council, which is comprised of the President, the Prosecutor and the Registrar of the Tribunal. 36 Members of the ICTR Rules Committee on proposed Rule 11 bis were: Judge Vagn Joensen, Trial Chamber III (Chair); Judge Seon Ki Park, Trial Chamber II; Judge Gustave Kam, Trial Chamber III; Mr. Alhagi Marong, Legal Officer, Trial Chamber II; Ms. Rupa Mitra, Legal Officer, Trial Chamber I; Ms. Karine Ardault, Legal Officer, Trial Chamber III; Ms. Helge Zeitler, Legal Officer, Special Assistant to the President; Mr. Richard Karegyesa, Chief of Prosecutions, Office of the Prosecutor; Mr. Alex Obote-Odora, Chief, Appeals jallow’s contribution to international criminal justice 451

In May 2009, Judge Joensen presented the draft Rule to the ICTR Judges in their meeting at the 21st Plenary. After subsequent exchange of views by memoranda, the Judges Plenary agreed to expand the Rules Committee and include two representatives of the OTP and one for the ICTR Association of Defense Counsels (ADC). The Prosecutor appointed Chief of ALAD and Chief of Prosecutions to represent the OTP on the Committee. During its sessions, the Rules Committee narrowed contentious matters to two issues: whether the proposed Rule 71 bis undermines the rights to fair trial of an accused and, second, whether the special deposition is, in practice, a trial in absentia. The majority opinion was that the proposed Rule 71 bis, while helpful, may also impose two limitations on an accused’s fair trial rights. First, under the proposed Rule, an accused has no right to appoint his lawyer since the Duty Counsel representing the accused is appointed by the Registrar pursuant to proposed Rule 71 bis (C) of the ICTR RPE without the consent and consultation of the accused. It is a prima facie violation of an accused right to “defend himself or herself in person or through legal assistance of his or her own choosing” enshrined in Article 20(4)(d) of the ICTR Statute.37 However, the Rules Committee also noted that the extent of this violation would depend, in particular, on whether the accused chose to represent himself or had the means to engage counsel of his own choosing. The violation would be minimal if the accused is indigent, given that the right to legal assistance financed by the Tribunal does not confer the right to counsel of one’s choosing and further that when deciding on the assignment of counsel, some weight is accorded to the accused’s preference, but such preference may be overridden if it is in the interests of justice to do so.38 The majority opinion concluded that the proposed Rule 71 bis does not violate fair trial rights of an accused or his right to counsel of choice. The other limitation was the scope of proposed Rule 71 bis (C) of ICTR RPE. The objection was that the Duty Counsel’s ability to conduct effective

and Legal Advisory Division, Office of the Prosecutor; Mr. Gershom Otachi Bw’Omanwa, Representative of the Association of Defence Counsel. 37 On general issues relating to the right of an accused to Counsel before ICTR, see Mame Mandiaye Niang, “The Right to Counsel Before the International Criminal Tribunal for Rwanda”, 13 Crim. L.F. 323 (2002). 38 Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, Decision of the Appeals Chamber on Appellant Jean-Bosco Barayagwiza’s Motion Contesting the Decision of the President Refusing to review and Reverse the Decision of the Registrar relating to the Withdrawal of Co-Counsel ¶ 10 (Nov. 23, 2006). 452 obote-odora cross-examination of the deponents would be greatly limited because he would be acting without the instructions or assistance of the accused. Lack of instructions from an accused may amount to a prima facie violation of the right to cross-examination, which is enshrined in Article 20(4)(e) of the ICTR Statute. On the other hand, the right to cross-examination is not an absolute right (as current Rules 92 bis ICTR RPE39 and 92 quater ICTY RPE40 prove) and that a complete absence of, or deficiency in, the cross-examination of a witness will not automatically lead to the exclusion of evidence. A Trial Chamber may thus admit evidence without cross-examination, even when it goes to the acts and conduct of the accused. The only absolute protection provided by the right to cross-examination remains unaffected by proposed Rule 71 bis, namely, the requirement that evidence which has not been cross-examined and which goes to the acts and conducts of the accused or is pivotal to the Prosecution case, must first be corroborated if used to establish a conviction by the Chamber.41

39 ICTR Rule 92 bis (A)(i) on Proof of Facts other than by Oral Evidence provides: (A) A Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment: (i) Factors in favour of admitting evidence in the form of a written statement include, but are not limited to circumstances in which the evidence in questions: (a) is of a cumulative nature, in that other witnesses will give or have given oral testimony of similar facts; (b) relates to relevant historical, political or military background; (c) consists of a general or statistical, analysis of ethnic composition of the population in the places to which the indictment relates; (d) concerns the impact of crimes upon victims; (e) relates to issues of character of the accused; (f) relates to factors to be taken into account in determining sentence. 40 ICTY Rule 92 quqter on Unavailable Persons provides: (A) The evidence of a person in the form of a written statement or transcript who has subsequently died or who can no longer with reasonable diligence be traced, or who is by reason of bodily or mental conditions unable to testify orally may be admitted, whether or not the written statement is in the form prescribed by Rule 92 bis, if the Trial Chamber: (i) is satisfied by the person’s unavailability as set out above; and (ii) finds from circumstances in which the statement was made and recorded that it is reliable. 41 Prosecutor v. Martić, Case No. IT-95-11-AR73.2, Decision on Appeal against the Trial Chamber’s Decision on the Evidence of Witness Milan Babić, ¶¶ 12, 20 (Sept. 14, 2006); see also Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.6, Decision on Appeals against jallow’s contribution to international criminal justice 453

Additionally, the Rules Committee noted that the central issue for determination prior to adopting or rejecting the proposed Rule 71 bis as submitted by the Prosecutor is whether the proposed Rule is consistent with the proportionality principle, pursuant to which any restriction on a fundamental right must be in service of a sufficiently important objective and must impair the right no more than is necessary to accomplish the objective.42 Considering that the objective of the proposed Rule 71 bis is to ensure that evidence will be available for use in the future trials of the fugitives, and due to the uncertainty as to whether and when the fugitives may be apprehended and/or brought to trial, the Rules Committee concluded that it is manifestly in the interests of justice to secure evidence by deposition, including evidence with respect to the acts and conduct of the accused, to be used in future trials in the event that a witness is unavailable.43 The Rules Committee, by majority decision, recommended the proposed Rule 71 bis to the Judges Plenary for consideration and adoption.44 However, the Association of Defense Counsel representative opposed the decision on five grounds. First, he argued that the proposed Rule threatens to violate the right of confrontation, which is a fundamental right of an accused person in an adversarial system. Second, no matter how diligent or prepared, any Duty Counsel appointed by the Registrar could never completely have the necessary preparation, context, or motivation to represent the interests of the accused person as diligently as an attorney must. Third, the right of an accused to confront his accusers is a prerequisite to the proper functioning of the adversarial system. Although the intention of Rule 71 bis appears to be relatively benign, he argued that this provision appears to be highly problematic for the preservation of the rights of the accused.45 Fourth, the rule on

Decision admitting Transcript of Jadranko Prlić’s Questioning into Evidence, ¶¶ 52–53 (Nov. 23, 2007). 42 See Zigiranyirazo v. The Prosecutor, Case No. ICTR-2001-73-AR73, Decision on Interlocutory Appeal, ¶ 14 (Oct. 30, 2006); Milosevic v. The Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, ¶ 13 (Nov. 1, 2004). 43 See V. Joensen, Report of the ICTR Rules Committee on Proposed Rule 71 bis, ¶ 24 (Sept. 15, 2009) (unpublished manuscript) (on file with author) (covering and reflecting most of the issues discussed by OTP Management). 44 Id. at ¶ 4 (on fair trial issues). The Report covered similar issues discussed by OTP Management prior to the Prosecutor’s submission of the draft proposed Rule 71 bis to the Rules Committee. 45 Mr. Gershom Otachi Bw’Omanwa’s objection attached to the Report of the ICTR Rules Committee and submitted to the ICTR Judges Plenary. See id. at ¶ 2. 454 obote-odora depositions as it currently stands under Rule 71, already derogates from the fundamental right, enshrined in the ICTR Statute, for the accused to be present at his trial. The application of the proposed rule would be a further infringement on not just one, but various fundamental rights of the accused, for example, the right to be present at trial, the right to counsel of choice, the right to a public hearing.46 Finally, the proposed Rule 71 bis is, in fact, a trial in absentia, and, that the derogation from the various fundamental rights cannot be justified under the proportionality principle. After considering the ADC objections, the Rules Committee was satisfied that the proposed rule serves important interests of justice and does not impair the rights of the accused more than is necessary to accomplish the objective of the preservation of evidence for future trial. Judge Joensen submitted the report to the ICTR President as chair of the Judges’ Plenary. He attached objections of the ADC representative as Annex “B.” After its deliberation, the ICTR Judges’ Plenary, by a two-thirds majority, adopted the proposed rule. The adoption of Rule 71 bis created a legal basis for preservation of evidence for future trials. National jurisdictions, who find themselves in similar situations, may benefit from this law. Since its adoption, the Prosecutor has successfully preserved evidence for future trial of Félicien Kabuga,47 Protias Mpiranya48 and Augustine Bizimana, all notable suspects of genocide before the Tribunal.49

2.2.1 Rule 94 of ICTR RPE and The Quest For Judicial Economy Rule 94 of ICTR RPE, provides for a party to proceedings before a Trial Chamber to seek an order from that Chamber, by a motion, for judicial notice. The Trial Chamber may admit in evidence all facts of common knowledge, adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to the matter at issue in the current proceedings without the necessity of hearing oral evidence.

46 Id. 47 Prosecutor v. Kabuga, Case No. ICTR-98-44B-R71bis, Decision on the Prosecutor’s Request for Preservation of Evidence by Special Deposition for a Future Trial (Pursuant to Rule 71 bis) (Mar. 15, 2011). 48 Prosecutor v, Mpiranya, Case No. ICTR-00-56A-71bis, Decision on Motion for Preservation of Evidence by Special Deposition for a Future Trial (Rule 71 bis of the Rules of Procedure and Evidence) (Mar. 2, 2011). 49 Prosecutor v. Bizimana, Case No. ICTR-44F-R71bis, Decision of the Prosecutor’s Request for Preservation of Evidence by Special Deposition for A Future Trial (Pursuant to Rule 71 bis) (May 5, 2011). jallow’s contribution to international criminal justice 455

Before 2003, neither the Prosecution nor the Defense applied Rule 94 of ICTR RPE to seek admission of evidence through judicial notice. At the ICTY, the first such decision was delivered on 28 October 2003.50 At a Prosecutor’s Daily Briefing (PDB) in 2004,51 Prosecutor Jallow directed the OTP to use Rule 94 of ICTR RPE to introduce evidence in court without summoning witnesses to give oral testimony. Without reliance on Rule 94 to admit in evidence facts of common knowledge, the OTP continues to bear responsibility for proving, in every single case before the Court, the fact that genocide was committed in Rwanda notwithstanding Trial and Appeals Chamber judgments in Kambanda,52 Akayesu53 and subsequent precedents. Besides wasting time, it is tedious and cumbersome to continue to prove facts that are already well established before ICTR Trial and Appeals Chambers. After the PDB, a practice to file Rule 94 motions for judicial notice for admission of facts of common knowledge, adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to the matter at issue in on-going proceedings before the different ICTR Trial Chambers was adopted. Several motions were then filed and the first ICTR judgment on judicial notice was delivered in May 2005,54 followed in June 2006 by a second decision.55

Rule 94 of the Rules provides:

(A) A Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof.

50 Prosecutor v. Milosevic, Case No. IT-02-54-AR73.5, Decision of the Appeals Chamber on the Prosecution’s Interlocutory Appeal Against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicative Facts, 3 (Oct. 28, 2003). 51 Prosecutor’s Daily Briefing (PDB) is held every morning from 8:00 am to 9:00 am in the Prosecutor’s office to review issues raised in on-going trials and appeals as well as to update the Prosecutor on urgent legal issues. Chaired by the Prosecutor, the PDB is attended by the Deputy Prosecutor, Chief of ALAD, Chief of Prosecutions and Special Assistant to the Prosecutor. 52 Prosecutor v. Kambanda, Case No. ICTR-97-23-S, Judgement and Sentence of the Trial Chamber (Sept. 4, 1998). 53 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement and Sentence of the Trial Chamber (Sept. 2, 1998). 54 Prosecutor v. Semanza, Case No. ICTR-97-20-A, Judgement of the Appeals Chamber ¶ 194 (May 20, 2005). 55 Prosecutor v. Karemera, Ngirumpatse, & Nzirorera, Case No. ICTR-98-44-R 94, Decision on Prosecution Motion for Judicial Notice Rule 94 of the Rules of Procedure and Evidence (Nov. 9, 2005); see also Prosecutor v. Karemera, Ngirumpatse, & Nzirorera, Case No. ICTR- 98-44-AR 73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice (June 16, 2006). 456 obote-odora

(B) At the request of a party or proprio motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to the matter at issue in the current proceedings.56

Judicial notice, as stipulated in Rule 94 of ICTR RPE, allows a court to accept as proved, certain facts without hearing oral evidence. Application of judicial notice is important in the prosecution of cases resulting from the Rwanda crisis because the tribunal has the competence to investigate and prosecute crimes of genocide, crimes against humanity and war crimes committed in Rwanda.57 The territory of the Republic of Rwanda is one big crime scene and consequently, all facts alleged in different indictments before the Tribunal are inter-related and form part of all facts the Prosecutor must collect and collate to get a full picture of what happened throughout the territory of Rwanda. The taking of judicial notice of adjudicated facts by a Chamber under Rule 94 (B) ICTR RPE is a method of achieving judicial economy and harmonizing judgments of the Tribunal while ensuring the rights of the accused to a fair, public and expeditious trial.58 The application of Rule 94 (B) is discretionary. However, application of Rule 94 (A) is mandatory. Once a Trial Chamber deter- mines that a fact is one of common knowledge, it is required by law to take judicial notice thereof. According to the Karemera ICTR Appeals Chamber interlocutory appeal decision, what constitutes “facts of common knowledge” is discerned from a finding that:

Rule 94 (A) “commands the taking of judicial notice” of material that is “notorious.” The term ‘common knowledge’ encompasses facts that are not reasonably subject to dispute: in other words, commonly accepted or universally known facts, such as general facts of history or geography, or the laws of nature. Such facts are not only widely known but also beyond reasonable dispute.59

56 ICTR RPE (2013), available at http://www.unictr.org/Legal/RulesofProcedureandEvidence/ tabid/95/Default.aspx. 57 ICTR Stat. art 1. 58 Karemera, supra note 55, at Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice (June 16, 2006). 59 Id. at ¶ 22. jallow’s contribution to international criminal justice 457

Thus, under Rule 94 (A), the taking of judicial notice by a Trial Chamber is mandatory once it is established that the facts cannot reasonably be the subject of dispute between the parties. While the earlier Semanza ICTR Appeals Chamber decision upheld the Trial Chamber’s findings on taking judicial notice of certain indisputable contextual facts,60 it also noted that the Trial Chamber had drawn back from taking judicial notice of whether “genocide” had occurred in Rwanda.61 It was the subsequent Karemera ICTR Appeals Chamber decision that resolved the issue when it held that the genocide in Rwanda was a notorious fact of common knowledge within the scope of Rule 94 (A).62 The application of judicial notice in criminal prosecutions is contested in many national jurisdictions. At the ICTR, its critics argue that whether or not genocide is proved in a given case is a legal determination inappropriate for judicial notice. Once a Chamber has acknowledged that the crime of genocide is committed, it becomes problematic for an accused to present a reasonable defense because the taking of judicial notice of such a crime is prejudicial to an accused. The Karemera ICTR Appeals Chamber resolved the issue when it held that “the term ‘genocide’ is not distinct from other legal terms used to characterize factual situations, such as ‘widespread or systematic’ or ‘not of an international nature’, which the Semanza Appeals Chamber earlier held to be subject to judicial notice under Rule 94 (A).”63 The Karemera ICTR Appeals Chamber went further and held: “even facts constituting elements of the crimes that the Prosecution must establish are susceptible to the operation of Rule 94 (A)”.64 The Karemera ICTR Appeals Chamber further observed:

60 Semanza, supra note 54, at ¶¶ 186–201. 61 Id. at ¶ 198. However, the Semanza Trial Chamber did take judicial notice of the existence of what it termed “enumerated facts comprising the crime of genocide.” See The Prosecutor v. Semanza, Case No. ICTR-97-20-I, Decision of the Trial Chamber III on the Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, ¶ 36 (Nov. 3, 2000). 62 Karemera, supra note 55, at ¶¶ 33–38. 63 Id. at ¶¶ 34–37. The Appeals Chamber stated, “As the Semanza Appeal Judgement made clear, allowing judicial notice of a fact of common knowledge – even one that is an element of an offence, such as the existence of a “widespread or systematic” attack – does not lessen the Prosecution’s burden of proof or violate the procedural rights of the Accused. Rather, it provides an alternative way that the burden can be satisfied; obviating the necessity to introduce evidence documenting what is already common knowledge.” Id. at ¶ 37. 64 Id. at ¶¶ 30, 37. 458 obote-odora

It is true that “widespread and systematic attack against a civilian population” and “armed conflict not of an international character” are phrases with legal meanings, but they nonetheless describe factual situations and thus constitute “facts of common knowledge.” The question is not whether a proposition is put in legal or layman’s terms. . . . The question is whether the proposition can reasonably be disputed.65

In sum, while facts may be clothed with legal significance, this is not a bar to taking judicial notice of them as facts of common knowledge, consistent with the provision of Rule 94 (A) of ICTR RPE. All ICTR Trial Chambers are now obliged to take judicial notice of the contextual facts listed below consistent with precedents in ICTR Appeals Chambers’ judgment in Semanza and interlocutory appeal decisions in Karemera:

(i) Between 6 April 1994 and 17 July 1994, citizens native to Rwanda were severally identified according to the following ethnic classifications: Tutsi, Hutu and Twa; or, alternatively, between 6 April 1994 and 17 July 1994, in Rwanda, the Twa, Tutsi and Hutu existed as protected groups falling under the Genocide Convention. (ii) The following state of affairs existed in Rwanda between 6 April 1994 and 17 July 1994. There were throughout Rwanda widespread or systematic attacks against a civilian population based on Tutsi ethnic identification. During the attacks, some Rwandan citizens killed or caused serious bodily or mental harm to persons perceived to be Tutsi. As a result of the attacks, there were a large number of deaths of persons of Tutsi ethnic identity. (iii) Between 1 January 1994 and 17 July 1994 in Rwanda there was an armed conflict not of an international character. (iv) Between 1 January 1994 and 17 July 1994, Rwanda was a state party to the Convention on the Prevention and Punishment of the Crime of Genocide (1948), having acceded to it on 16 April 1975. (v) Between 1 January 1994 and 17 July 1994, Rwanda was a state party to the Geneva Conventions of 12 August 1949 and their Additional Protocol II of 8 June 1977, having succeeded to the Geneva Conventions of 12 August 1949 on 5 May 1964 and having acceded to Protocols additional thereto of 1977 on 19 November 1984.

65 Id. At ¶ 29 (emphasis added). jallow’s contribution to international criminal justice 459

(vi) Before the introduction of multi-party politics in Rwanda in 1991, the office of the Bourgmestre was characterized by certain features as enumerated in the Semanza appeal judgment.66 (vii) Between 6 April 1994 and 17 July 1994, there was genocide in Rwanda against the Tutsi ethnic group.67

Unlike adjudicated facts that form the basis for judicial notice under Rule 94 (B) of ICTR RPE, these facts of common knowledge are conclusively established. They are therefore no longer susceptible of contrary proof.68 In finding the existence of widespread or systematic attacks against a civilian population based on Tutsi ethnic identification, with the result described above, and the perpetration of genocide against the Tutsi ethnic group, to be facts of common knowledge, the ICTR Appeals Chamber in Karemera made reference to a broad range of documentation. The Chamber’s references included decisions of the ICTR Trial and Appeals Chambers, historical accounts, books describing what occurred in Rwanda, scholarly articles, media reports, United Nations reports and resolutions, national court decisions, and government and non-governmental organization reports. The basic facts, the Appeals Chamber noted, were broadly known even at the time of the Tribunal’s establishment. While it was valuable for the purpose of the historical record for the Tribunal, during its early history, to gather evidence documenting the course of the genocide, and to make findings of fact based on that evidence, the Appeals Chamber concluded: “At this stage, the Tribunal need not demand further documentation.”69 Thus, in determining whether a fact is one of common knowledge, a Chamber may have recourse to the widest variety of evidence and information. In the Karemera case, the material referred to, for the purpose of determining facts of common knowledge, included “. . . books, scholarly articles, media reports, UN reports and resolutions, national courts decisions and government and NGO reports.”70 Either party to proceedings before the ICTR may invoke Rule 94 (A) of ICTR RPE. This may be done by pre-trial motion or even by motion during the trial. While the specific facts of common knowledge listed above must now be taken

66 Semanza, supra note 54, at ¶¶ 186–201, Annex II: Judicial Notice. 67 Id. See also Karemera, supra note 51, at ¶¶ 25–38. 68 For the difference between Judicial Notice under Rule 94(A) and 94(B) on facts of common knowledge and adjudicated facts, see Karemera, supra note 55, at ¶¶ 40–42. 69 Id. at ¶¶ 29, 31, 35. 70 Id. at ¶ 35. 460 obote-odora as conclusively established for subsequent proceedings at the ICTR Trial and Appeals Chambers, the question whether a fact falls within the scope of Rule 94 (A) will be, at the time of the original invocation of the Rule, the subject of submissions by parties at a hearing. While Rule 94 (A), unlike Rule 94 (B), makes no specific provision for a hearing, even the decisions in Semanza and Karemera cases, which settled the issues, were only given after the Trial Chambers and then the Appeals Chamber heard the parties. The approach to judicial notice adopted by the Appeals Chamber has not, of course, been free of controversy, especially with respect to the Karemera decision. While the appeal judgment in Semanza, recognizing certain facts as being beyond reasonable dispute, caused no controversy in legal circles, the acceptance of genocide as a fact of common knowledge in Karemera upset the detainees at the United Nations Detention Facility (UNDF) in Arusha. The Karemera Defense team wanted the Appeals Chamber to revisit legal principles that regulate the determination and admissibility of judicial notice hence the filing before a Trial Chamber, a motion for certification to appeal.71 In its ruling, the Trial Chamber acknowledged that Judicial Notice gives the Prosecutor an alternative means to meet its burden of proof on issues of facts and accepted the Defense contention that the Impugned Decision involves issues that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial.72 However, in rejecting the Defence request for certification, the Trial Chamber ruled:

As the Appeals Chamber has stated, the Chamber has the responsibility, as a trier of fact, to determine in the exercise of its discretion which evidence to admit during the course of the trial. Whereas certification to appeal has to be the ‘absolute exception’ when deciding on the admissibility of evidence, the present Impugned Decision involves only an evaluation of factual questions with respect to the Chamber’s application to specific facts of which judicial notice has been taken and no useful purpose would be served by requesting the Appeals Chamber to revisit legal principles which it has recently affirmed.73

71 Prosecutor v Karemera et al., Case No. ICTR-98-44-T, Decision on Defence Motion for Certification to Appeal Appeals Chamber Decision on Appeals Chamber Remand on Judicial Notice, Rule 73(B) of the RPE (Sept. 26, 2007). 72 Id. at ¶ 9. 73 Id. at ¶ 12. jallow’s contribution to international criminal justice 461

Despite the Trial and Appeals Chamber decisions, critics continue to argue that the Judicial Notice decisions went beyond the scope of Rule 94 (A).74 It is conceded that facts of common knowledge, as recognized in Semanza and Karemera, could affect determination of individual criminal responsibility of an accused because the accused did not act in a vacuum. The accused acted in a context and that context is a relevant fact in the determination of innocence or guilt. The Appeals Chamber elaborated on this point as follows:

Plainly, in order to convict an individual of genocide a Trial Chamber must collect evidence of that individual’s acts and intent. But the fact of the nationwide campaign is relevant; it provides the context for understanding the individual’s actions. . . .

The Prosecution must . . . still introduce evidence demonstrating that the specific events alleged . . . constituted genocide and that the conduct and mental state of the Accused specifically make them culpable for genocide.75

Based on the Appeals Chamber judgment and decisions, the ability of the accused to make full defense against the specific allegations leveled against them in the indictment, is not diminished by judicial acceptance of certain indisputable facts without hearing evidence. Further, it is evident that the Prosecutor still bears the burden of proving the guilt of the individual accused, irrespective of the contextual facts already established by judicial notice. From the Prosecutor’s perspective, the operation of Rule 94 (A) relieves the Prosecutor from the burden of adducing evidence to prove facts of common knowledge. On the other hand, “allowing judicial notice of facts of common knowledge – even one that is an element of an offence, such as the existence of a ‘widespread or systematic’ attack – does not lessen the Prosecution’s burden of proof or violate the procedural rights of Accused. Rather, it provides

74 See e.g., Kirk G. Shannon, Passing the Poisoned Chalice: Judicial Notice of Genocide by the ICTR, 19.2 Revue québécoise de droit international 95–122 (2006). The primary criticism here appears to be that the Karemera decision violates the right of the defence to challenge the legal conclusion that genocide occurred in Rwanda. However, it is respectfully submitted that Shannon misses the point. On the contrary, the decision addresses this issue, as well as the question of fairness to the accused. 75 Karemera, supra note 55, ¶¶ 36–37. 462 obote-odora an alternative way that the burden can be satisfied; obviating the necessity to introduce evidence documenting what is already “common knowledge.”76 Overall, from the OTP perspective, the Appeals Chamber Decisions on Judicial Notice provide sound legal basis for the Prosecutor to protect, particularly victims and witnesses of rape and sexual violence, from testifying in court and to be subjected to brutal and humiliating cross-examination, as is discussed below.

3 Presenting Evidence of Witnesses Who are Victims of Rape and Sexual Violence Crimes

In a relatively short period, the ICTY and the ICTR have developed significant substantive and procedural jurisprudence on the prosecution of rape and sexual violence crimes. This part examines procedural aspects of the law and focuses on the practice and process adopted by the ICTR Prosecutor in the investigation and prosecution of rape and sexual violence crimes. The ICTR experience suggests that victims and survivors of rape and other forms of sexual violence who are also witnesses for the prosecution, were routinely threatened by accused, their relatives, friends and accomplices, before, during and after trials. The Prosecutor’s responsibilities to these venerable witnesses were, inter alia, to protect them from contact with unwanted persons, including accused, through protective court orders. Besides protective orders, the Prosecutor also took steps to protect prosecution witnesses from recurrent trauma caused by confronting accused in court and remembering abuses inflicted on them. The Prosecutor adopted policies that reduced, to bare minimum, contacts between witnesses and accused at all times. These policies included identifying and interviewing witnesses who were not victims and encouraging them to appear in court to testify. This alternative approach was possible because the Rwandan genocide was massive, widespread, and systematic and committed in public in front of many witnesses. It was therefore possible to identify witnesses who were not direct victims, but witnessed the crimes, and were willing to testify. Thus, to shield victims from testifying in court, the Prosecution interviewed a wide range of witnesses to gather evidence of rape and sexual violence crimes, including interviewing those who were not victims, as long as they had credible information about these offences. This policy was a departure from past practices when OTP Investigators limited their interviews to direct vic-

76 Id. at ¶ 37. jallow’s contribution to international criminal justice 463 tims of rape and sexual assault. The new policy focused on documenting all instances of rape and sexual violence committed as part of, or simultaneously with, substantive crimes of genocide, crimes against humanity and war crimes. The policy was effectively applied in the Bagosora case77 where Prosecution Counsel elicited testimony of rapes and sexual violence crimes through witnesses who were not victims themselves. The Prosecution team questioned almost every prosecution witness to relate what they saw with respect to the occurrence of rape and sexual violence crimes committed at various roadblocks and public places. General Romeo Dallaire, Commander of the United Nations Assistance Mission to Rwanda (UNAMIR), and Chief of Staff, Major Brent Beardsley, were two of the non-victims interviewed and their testimonies described widespread and systematic rapes and sexual assaults committed at the various public places throughout the country. The objective of collecting evidence from a wide range of witnesses was to conclusively prove that as superiors, the accused knew, or had reason to know, that rape and sexual violence were committed by their subordinates and further that the acts constituted crimes of genocide, crimes against humanity, or war crimes. The evidence was then used to support allegations in the indictment that the rapes and sexual assault were widespread or systematic throughout Rwanda. No direct victim of rape and sexual violence at these roadblocks was called to testify at the Bagosora trial. Based on the evidence presented at the Bagosora trial, the Chamber was satisfied that rape and sexual assaults occurred at public places as described by Gen Dellaire and Major Beardsley. Col. Bagosora was, accordingly, convicted of; inter alia, rape and sexual violence for crimes that were committed by his subordinates.78 Chapter 18, which is Linda Bianchi’s contribution to this volume, also discusses the significance of this innovative approach in procuring gender justice at the ICTR. The Prosecution also relied on Rules 92 bis and 94 of ICTR RPE to shield victims of rape and sexual violence crimes from facing accused in court to avoid further trauma. In the Karemera et al. case, Prosecution Counsel put on record evidence of rape and sexual violence through adjudicated facts from previous

77 See Prosecutor v Bagosora, Kabiligi, Ntabakuze, & Nsengiyumval, Case No. ICTR-98-41-T, Judgement of the Trial Chamber (Dec. 18, 2008). 78 Id. at ¶¶ 1907, 1920. The Bagosora strategy was also followed in Prosecutor v Karemera, Ngirumpatse. Case No. ICTR-98-44-T, Judgement of the Trial Chamber (Feb. 2, 2012) (adopting a similar strategy and eliciting such evidence through eye-witnesses other than victims). 464 obote-odora trials. He submitted in evidence written statements of sixteen rape victims under Rule 92 bis of ICTR RPE without calling the witnesses to testify.79 Rule 92 bis provides the means to put in evidence facts other than by oral evidence. Thus, while Rule 92 bis appears to be of a different legal import to Rule 94, in practice, the two rules complement each other by protecting some vulnerable witnesses from giving oral evidence and thereby being subjected to intrusive, and at times, humiliating cross-examinations. Rule 92 bis protects a witness, particularly a victim or a witness who was present at, or near the scene of rape and sexual assault, from being present in court to testify, a process that can re-traumatize her when remembering the ordeal, if she were made to give oral evidence. In that context, Rule 92 bis performs a role similar to that of Rule 94 in that effective and purposeful use of Rule 92 bis by the Prosecution protects rape and sexual assault victims from re-living the traumatic period they have left behind.80 The above strategies, of effective use of Rule 92 bis to complement Rule 94, sufficiently shielded witnesses from the perpetrators while ensuring that credible and relevant evidence was placed before the Judges without the need for victims as witnesses to testify. However, when it was absolutely necessary that a victim who is a survivor and a witness must testify in court, additional steps were taken by the Prosecution to create a positive and protective courtroom environment. This policy was adopted in the Muhimana case81 where the Prosecution sought protection of witnesses and victims of rape and sexual violence from intrusive questioning by Defense Counsels before and during trial by seeking extensive protective orders from the Trial Chamber. The Prosecution also reminded all parties to respect the confidentiality order issued by the Chamber and thus ensured respect for protective measures. The Prosecution notified witnesses of such safeguards put in place for their protection. This approach made it possible for the Prosecution to gain the trust and respect of witnesses and in turn, the witnesses cooperated with the Prosecution throughout the trial.

79 Prosecutor v. Karemera et al., Case No. ICTR-98-44-T, Decision on Reconsideration of Admission of Written Statements in Lieu of Oral Testimony and Admission of the Testimony of Prosecution Witness GAY (Sept. 28, 2007). 80 See e.g., Prosecutor v. Karemera et al., Case No-ICTR-98-44-T, Decision on Prosecution Motion for Admission of evidence of Rape and Sexual Assault Pursuant to Rule 92 bis of the Rules: AND Order for Reduction of Prosecution Witness List, Rule 92 bis and 73 bis (D) of the Rules (Dec. 11, 2006). 81 Case No. ICTR-95-IB-T, Judgement of the Trial Chamber (Apr. 28, 2005). Defense Counsels made similar applications for protection of their witnesses. See id. at Decision on Defence Motion for Protective Measures of Defence Witnesses (July 6, 2004). jallow’s contribution to international criminal justice 465

The Prosecution also sought guarantees of anonymity of witnesses from the Trial Chamber. The request for guarantees was prompted by the knowledge that, as the trial was about to commence, the Prosecution became aware that a witness, under pseudonym Witness BJ, was a victim as well as a witness, in the same trial where her husband, who had no knowledge of her as a rape victim, was also due to testify. If the husband knew that she had been raped, she would have been rejected by her husband and the rest of the family. To preserve her identity and dignity, it was absolutely necessary that the confidentiality and anonymity orders were kept from her husband, family and the public during and after the trial. A separate but equally important issue was the Prosecutor’s responsibility to provide physical and mental security for witnesses, and generally, the safety of their families, especially spouses and children. In extreme cases, the witnesses and their families had to be relocated to foreign countries under new identities. In re-locating witnesses and their families, the Defense often accused the Prosecution of “bribing” witnesses, an assertion not always proved before Trial Chambers.82 Extending adequate protection to witnesses during trial involves complex courtroom logistics. Before and during the Muhimana trial, for example, the Prosecution with the assistance of staff from the Witness and Victims Support Section (WVSS) ensured that the witnesses and victims were fully informed in

82 A former Interahmwe leader, an important “insider” and a participant in the planning and organization of genocide, turned Prosecution witness, gave evidence in the Military, Butare, Government, Setako, etc cases in closed sessions and the bulk of his testimony, including Chamber’s decisions, are sealed and those made public are heavily redacted. This witness is known as “006” and the Prosecution was duty bound to protect him and his family especially after another important “insider” witness was killed under unexplained circumstances while in Belgium and just a few weeks before he was due to testify. There are, however, publicly available decisions on similar issues alleging payment of large sum of money to Prosecution Witnesses whose life and that of their families were threatened. From the Prosecution’s point of view, these payments were not bribes but assistance to keep them safe from dangers arising from the fact that they testified for the Prosecution and against their former colleagues. See e.g., Prosecutor v. Karemera, Ngirumpatse, & Nzirorera, Case No. ICTR-98-44-T, Decision on Joseph Nzirorera’s Motion for Reconsideration of Oral Decision on Motion to compel full disclosure of ICTR Payments for the Benefit of Witness G and T and motion for admission of Exhibit: Payment made for the benefit of Witness G (May 29, 2008); id. at Decision on Prosecutor’s Motion to Permit Limited Disclosure of Information Regarding Payments and Benefits Provided to Witness ADE and His Family – Rules 66(C) and 68(D) of the Rules of Procedure and Evidence (June 21, 2006); see also id. at Decision on Joseph Nzirorera’s Motion for Reconsideration: Decision on Motion for Disclosure of Benefits for Prosecution Witness ZP (Nov. 19, 2009). 466 obote-odora advance, about what happens in court during trials. The witnesses were briefed on sitting arrangements in court for accused and their lawyers, Prosecution, Judges, witnesses and the public gallery. The witnesses were also briefed on close session testimony and the overall protection regime. The witnesses were also briefed on the modalities of examination-in-chief, cross-examination, re-examination and possible questioning of witnesses by one or all three Judges hearing the case. This briefing was essential in preparing witnesses for trial and their role in the judicial process. Once the trial commenced, it was equally important to brief the witnesses/victims on what was happening in court so that they were able to follow and understand the proceedings, with the information dissemination again being conducted by the Prosecution with the assistance of WVSS. Overall, it was important that witnesses were guaranteed that the courtroom environment was “safe” and comfortable. In creating a safe environment for witnesses, the OTP for example, requested a professional counselor conversant in Kinyarwanda, the language used by most of the victims and witnesses called to testify. In that regard communication during counseling sessions were both direct and effective. The Prosecution, in the course of trial, requested frequent recesses to provide opportunity and space to the witness to rest and recom- pose, whenever necessary. On its part, the Muhimana Chamber was very helpful and positive in controlling the trial proceedings. For example, during the cross-examination of Witness BG, the Chamber barred the Defense Counsel from cross-examining her about her past sexual history even before the Prosecution had raised objections. The victim was therefore not harassed or intimidated; and, the Prosecution purposely presented brief and focused testimonies from the witness and set the proper tone and demeanor, such that it was difficult for the Defense to adopt an aggressive and hostile approach during cross examination. However, the Defense was equally respectful and, as a result, during the entire testimony of Witness BG, respect was the key word in court.83 Finally, the question of consent or lack thereof, as an element of the crime of rape, kept on resurfacing. Proof of consent continued to be contentious because, while the ICTR Trial Chambers were producing progressive jurisprudence, the ICTY Trial Chambers seemingly reverted back to a more backward understanding of elements of rape, based on a review of antiquated jurisprudence from national jurisdictions. The ICTY Trial Chambers had confined itself to a more mechanical definition of rape, which had been expressly rejected in

83 Muhimana, supra note 81. jallow’s contribution to international criminal justice 467 the Akayesu case and seemed to insert the issue of non-consent into the definition of the crime as an element of the offence.84 The Gacumbitsi, ICTR Appeals Chamber judgment, eventually reconciled the ICTR and ICTY law on rape. The ICTR Appeals Chamber accepted that, in the context of crimes of genocide, crimes against humanity and war crimes, committed in situations of widespread and systematic attacks on the civilian population, there is a presumption of non-consent that would negate the need for the Prosecution to establish lack of consent as an element of the crime. In that context, rape is viewed in the same way as other violations of serious international crimes, such as torture or enslavement, for which the Prosecution is not required to prove non-consent.85 However, the Appeals Chamber also clarified that the Prosecution may prove non-consent by proving the existence of coercive circumstances under which meaningful consent is not possible.86 Also, the Appeals Chamber noted that it is not necessary for the Prosecution to either introduce evidence on the words and conduct of the victim or her relationship with the perpetrator, or introduce evidence on use of force.87 The Trial Chamber is instead free to consider all relevant evidence, and infer non-consent from background circumstances such as an ongoing genocide campaign or the detention of the

84 Prosecutor v. Furundzija, Case No. IT-95-17/1, Judgement of the Trial Chamber ¶ 185 (Dec. 10, 1998); Prosecutor v. Kunarac et al., Case No. IT-96-23 & IT-96-23/1-T, Judgement of the Trial Chamber, ¶ 460 (Feb. 22, 2001); Prosecutor v. Kunarac et al., Case No. IT-96-23 & IT-96-23/1-A, Judgement of the Appeal Chamber, ¶¶ 129–30. Several cases of the ICTR then followed the approach introduced at the ICTY. See Semanza, Case No. ICTR-97-20-T, Judgement of the Trial Chamber, ¶¶ 344–46 (Apr. 28, 2005); Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-T, Judgement of the Trial Chamber, ¶ 914 (Dec. 1, 2003); Prosecutor v. Kamuhanda, Case No. ICTR-99-54A-T, Judgement and Sentence of the Trial Chamber, ¶ 708 (Jan. 22, 2004); Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64-T, Judgement of the Trial Chamber, ¶¶ 321–33 (June 17, 2004). However, other ICTR Trial Chambers continued to follow the judgement in Prosecutor v Jean Paul Akayesu Case No. ICTR-96-4-T, Trial Judgement, 2 September 1998. See Prosecutor v. Musema, Case No. ICTR-96-13-A, Judgement of the Trial Chamber, ¶ 226 (Jan. 27, 2000); Prosecutor v. Muhimana, Case No. ICTR-95-1B-T, Judgement of the Trial Chamber, ¶ 551 (Apr. 28, 2005). At the ICTY, the first case to consider the Akayesu definition was Prosecutor v. Zejnil Delalic et al., which endorsed the Akayesu formulation of the definition. See Case No. IT-96-21-T, Judgement of the Trial Chamber, ¶¶ 478–79 (Nov. 16, 1998). 85 Gacumbitsi v. Prosecutor, Case No. ICTR-2001-64-A, Judgement of the Appeals Chamber, ¶ 153 (July 7, 2006). 86 Id. at ¶ 155. 87 Id. at ¶ 155. 468 obote-odora victim.88 Similarly, knowledge of non-consent on the part of an accused may be proved, if the Prosecution establishes beyond reasonable doubt that the accused is aware, or had reason to be aware, of the coercive circumstances that undermined the possibility of genuine consent.89 Following the Gacumbitsi ICTR Appeals Chamber judgment, the Prosecution adopted a policy of not questioning victims of rape and sexual assault on whether they consented to the sexual activity. This was significant because of the Appeals Chamber finding of fact that acts of genocide, crimes against humanity and war crimes in general, and conditions of detention in particular, constitute coercive circumstances. The policy adopted by the Prosecution was to seek to establish the existence of coercive circumstances, which vitiates the possibility of meaningful consent from other witnesses who are not direct victims. The ICTR jurisprudence, based on Akayesu,90 Gacumbitsi,91 Muhimana92 and Bagosora,93 confirm that acts of rape and sexual violence are constituent acts of genocide. Further, the Akayesu,94 Semanza,95 Gacumbitsi,96 Muhimana97 and Bagosora,98 jurisprudence also confirms that acts of rape and other sexual violence constitute crimes against humanity. The Bagosora judgment also clarified that acts of sexual violence, including forcing a female victim to dance naked constitutes outrages upon personal dignity and thus, a war crime under Article 4 of the ICTR Statute.99 Finally, the Semanza Appeals Chamber confirmed that acts of rape and sexual violence constituted violence to life, health and physical or mental well-being.100 The above ICTR jurisprudence demonstrates that acts of rape and sexual violence are constituent elements of genocide, crimes against humanity and war crimes as stipulated in Articles 2, 3 and 4 of the ICTR Statute. The policy adopted by the Prosecutor was an important contribution on the prosecution of rape and sexual violence crimes. Further detailed discussion of the legacy in

88 Id. at ¶ 155. 89 Id. at ¶ 157. 90 Akayesu, supra note 53, at ¶¶ 706–07. 91 Gacumbitsi, supra note 85, at ¶ 292. 92 Muhimana, supra note 81, at ¶¶ 513, 517. 93 Bagosora et al., supra note 77, at ¶¶ 2124–33. 94 Akayesu, supra note 53, at ¶¶ 691–95. 95 Semanza, supra note 54, at ¶¶ 476–79, 481–84 (entering a conviction for torture for the instigation of rapes). 96 Gacumbitsi, supra note 85, at ¶¶ 321–32. 97 Muhimana, supra note 81, at ¶ 562. 98 Bagosora et al., supra note 77, at ¶ 2203. 99 Id. at ¶ 2254. 100 Semanza, supra note 54, at ¶¶ 370–71. jallow’s contribution to international criminal justice 469 this regard can be found in Chapters 17 (Fatou Bensouda), 18 (Linda Bianchi) and George Mugwanya (Chapter 19).

4 An Overview of OTP Internal Reforms and Working Methods

The presence of a Chief Prosecutor at Arusha, on a full time basis, was a positive contributing factor in creating conditions for OTP internal reforms. Senior staffs had easy access and opportunity to discuss legal issues and management matters with the Chief Prosecutor. The discussion here is limited to OTP reforms and policy options taken by the Prosecutor in managing the completion strategy and overall improvement of investigation and prosecution. The discussion focuses on indictment policy and its impact on speedy trials. Other internal reforms, for example, policy on guilty plea negotiations, forums to discuss legal and management issues, such as Prosecutor’s Daily Briefing (PDB); a weekly Senior Trial Attorneys/Senior Appeals Counsels (STA/SAC) meetings, a monthly Legal Forum, regular meetings of Indictment Review Committee, Pre-Trial and Pre-Appeal Reviews, are all important, but due to limited space, are only mentioned in passing. An understanding of OTP recruitment policy and their impacts on the legal work is relevant in appreciating challenges faced by ICTR Prosecutor. As articulated by Bernard Muna, a former ICTR Deputy Prosecutor, the ICTR recruitment process was tailored on the UN General Assembly policy, a process which guaranteed that staffs were recruited from around the world reflecting diverse geographical representation, language and culture of the United Nations.101 Professional experience in criminal prosecution of cases played a minimal role in the recruitment process. As a result, the OTP staffs recruited were persons of different professional training, experience and background. The staffs also had philosophical differences as legal practitioners trained in different systems. They had markedly different perspectives on issues such as statements recorded at the investigative and prosecution stages. Their understanding of the law ultimately influenced decisions taken before and during trial. The less experienced lawyers but with connections within the OTP were given more responsibilities. This category of lawyers made serious mistakes before and during trial. Addressing some of these concerns in her memoir, Prosecutor Carla Del Ponte narrates problems she encountered as Chief Prosecutor in her attempts

101 Bernard Muna, “The Early Challenges of Conducting Investigations and Prosecutions before International Criminal Tribunals”, in The Challenges of International Criminal Justice 15 (Leigh Swigart, ed., 2005). The first Colloquium of International Prosecutors was held on November 24–25, 2004 at Arusha, in the United Republic of Tanzania. 470 obote-odora to dismiss or not to re-new contracts of non-performing staffs. Once a staff member was recruited, it did not matter how incompetent he/she was, the U.N. Recruitment Policy ensured that staff were not easily removed.102 The rigid U.N. Recruitment policy was intended to guard against arbitrary dismissal or overbearing acts of a Chief Prosecutor. However, in practice, it protected unsuitable, unqualified and under qualified staffs with little or no experience in criminal prosecutions. Overall, the UN Recruitment Policy had a negative impact on the work of the OTP. The flaw in the UN recruitment policy was noticeably reflected in the shoddy drafting of indictments and management of pre-trial proceedings. For illustrative purposes only, I provide three examples before discussing Prosecutor Jallow’s reforms. The first example is the case of Bagosora and 28 others.103 Theoneste Bagosora, a retired colonel in the Rwanda Armed Forces (RAF), exercised authority that went far beyond his formal title. After the death of President Habyarimana, many in Rwanda saw Col. Bagosora as the de facto president. In a joint indictment, Col. Bagosora was charged alongside twenty-eight others. The twelve-count indictment was sixty-three pages long. The indictment narrated, in great detail, the historical context of the Rwanda genocide, the government’s power structure, its local and public administrations, political parties, the militia and the armed forces. The indictment also had a section on concise statement of facts, but the statement was neither concise nor brief. The indictment was submitted to Judge Tafazzal Hossain Khan for review and confirmation. The indictment was defective in many ways. For a start, eleven of the twenty- nine accused were already indicted and had previously made their initial appearance and entered not guilty pleas under Rule 62 of the ICTR RPE.104 The Prosecutor could not therefore charge them with the same offences based on the same set of facts alongside others who were at large or not already charged. Second, the cases against two of the accused included in the new indictment were ready for trial beginning on 12 April 1998. In other words, those cases

102 Carla Del Ponte & Chuck Sudetic, Madam Prosecutor, Confrontation with Humanity’s Worst Criminals and the Culture of Impunity 134–36 (Other Press, New York, 2008). Prosecutor Richard Goldstone had similar challenges with the U.N. Recruitment Policy and management of staff and finances. See Richard J. Goldstone, For Humanity, Reflections of a War Crimes Investigator 74–119 (Yale University Press, 2000). It is highly likely that certain other UN-associated tribunals faced similar challenges. 103 Case No. ICTR-98-37-I. (Oct. 8, 1998). 104 Prosecutor v. Bagosora and 28 others, Case No. ICTR-98-37-I, Dismissal of Indictment (Mar. 31, 1998). jallow’s contribution to international criminal justice 471 were already at trial stage for the purposes of Rule 51 (A) of the ICTR RPE.105 Again, the two accused could not be jointly charged with suspects who were still at large. Third, the fact that these twenty-nine accused were at three different stages of the pre-trial process made it defective to lump them all in one indictment. The first group of accused were the eleven against whom indictments had already been confirmed and were in custody, had made their initial appearance and had their cases ready for trial. The second group were the five accused against whom indictments had been confirmed, but were fugitives. The ICTR Statute does not provide for trial in absentia and therefore the fugitives ought not to have been joined in one indictment with other accused already in custody and had appeared in court. The third group was the thirteen new suspects who were also fugitives. Without prior indictment, the thirteen accused could not be joined with the other five who were still fugitives. In any event, if the five fugitives were to be joined with the other thirteen fugitives, each accused could only be prosecuted as and when they were arrested. Thus, by joining the fugitives, the indictment remains incurably defective. Why did the Prosecutor submit such an incurably defective indictment for confirmation? Possible explanations range from UN Recruitment Policy to incompetence of lawyers responsible for the Bagosora et al. indictment. Thanks to Rule 62 of the ICTR RPE, the Prosecutor was able to salvage the case because the Rule authorizes the Prosecutor to amend an indictment, without leave, at any time before its confirmation, but thereafter, until the initial appearance of the accused before a Trial Chamber, only with the leave of the Judge who confirmed it. The indictment, which named Col. Bagosora and 28 others, not having been confirmed by the Pre-Trial Judge, the Prosecutor was free to file a new or amended indictment for further review or confirmation. The second example is the withdrawal of the Bernard Ntuyahaga indictment.106 The drafting style of the Ntuyahaga indictment followed the Bagosora template and reproduced Rwanda’s historical context, power structure, local and public administration, the armed forces, political parties and the militias. The information could have been provided by expert witnesses without pleading the allegations since evidence is not pleaded in an indictment. The accused was a major in the Rwandan Armed Forces. According to the indictment, the accused is alleged to have ordered the abduction of members of the close protection team provided to the Prime Minister by

105 Id. 106 Case No. ICTR-98-40-I (Sept. 29, 1998). 472 obote-odora

UNAMIR. Immediately thereafter, members of the Presidential Guard and Reconnaissance Battalion proceeded to track down, arrest, sexually abuse and kill Prime Minister, Agathe Uwilingiyamana. Prior to her assassination, ten Belgian soldiers, under order to protect her, were disarmed on their arrival at the Prime Minister’s residence, along with five Ghanaian soldiers who were guarding the residence. Despite their negotiated surrender, the presence of the accused, and the promise that they would be taken to the UNAMIR base, soldiers under the command of the accused took the Belgians and the Ghanaians to Kigali Military Camp. At the camp, the accused asserted that the Belgian soldiers were responsible for the death of President Habayarimana. Immediately thereafter, RAF soldiers began to beat the UNAMIR soldiers in front of senior Rwanda Army officers, including the accused. Four Belgian soldiers were killed on the spot. Meanwhile the Ghanaian soldiers were set free. The six remaining Belgian soldiers withstood several attacks for a number of hours before they were finally killed. Based on the above facts, the Prosecutor charged Major Ntuyahaga with, inter alia, murder of the Prime Minister and that of the ten Belgian UNAMIR soldiers. On confirmation of the thirty-two-page indictment, the Belgian Govern ment notified the Prosecutor that they prefer to prosecute Major Ntuyahaga in Belgium. The Prosecutor then applied for a review of the indictment, with the Government of Belgium as amicus curiae, for the dismissal of count 1 (Conspiracy to Commit Genocide), Count 2 (Genocide), and count 4 (War Crimes). Count 3 on the killing of ten Belgian soldiers as a Crime Against Humanity was retained.107 The request was granted and thereafter the Prosecutor filed another motion seeking withdrawal of the case and the transfer of the accused to the custody of the Tanzania authorities with the objective to transfer the accused to Belgium for trial. In the motion, the Prosecutor argued that the withdrawal of the indictment would promote the exercise of concurrent jurisdiction as provided for under Article 8(1) of the ICTR Statute by allowing national courts to prosecute the accused. The Prosecutor did not, however, address the Chamber on the legal status of the accused after the withdrawal of the indictment. Once the indictment is withdrawn, a former accused is a free person and cannot be ordered by the Chamber to be placed in the custody of any authority or state. The Chamber granted leave to the Prosecutor to withdraw the indictment and, in the absence of any charges against the accused; the Chamber ordered the immediate and unconditional release of Major Ntuyahaga.

107 Id. at Decision of the Trial Chamber on the Review of the Indictment. jallow’s contribution to international criminal justice 473

The Chamber’s order for unconditional release of the accused was a shock to the Prosecutor. She had expected, wrongly, that the Chamber would release Major Ntuyahaga in the custody of the Tanzania Government. This failure to appreciate the legal implications of withdrawal of an indictment was a grave error on the part of the OTP. In law, a withdrawal is tantamount to a termination of proceedings. Consequently, a withdrawal entails immediate and unconditional release of an accused. Under general principle of law, a person who is no longer under indictment may not be deprived of his/her freedom and must therefore be released immediately if he/she is not held for any other cause.108 The Prosecutor erred in requesting the Chamber to authorize a withdrawal of the indictment and simultaneously seek an order for the release of the accused from the Tribunal’s custody to the authorities of Tanzania when in law, Ntuyahaga was a free man. But for the cooperation of Tanzania, any attempt to transfer Major Ntuyahaga to Belgium based on the informal understanding between the ICTR Prosecutor and the Belgian Government would have been unsuccessful. The Ntuyahaga case is another example of lack of appreciation of the relevant pre-trial law and procedure. A third example is Colonel Rusatira’s indictment. The Rusatira indictment was defective to the extent that it disclosed no offence under the ICTR Statute.109 It was therefore prudent that the Prosecutor withdrew the indictment. The above three indictments demonstrate lack of clear policy on drafting indictments. A multi-accused indictment, as a policy, is bad practice. The Bagosora et al. indictment cited above is a testimony to this fact. Additionally, a multi-accused indictment inadvertently makes the Prosecution tend to adduce more evidence with respect to one or two accused and less rigorous with respect to the other accused. This happened in the Bagosora et al. trial when the Prosecution was focused on Bagosora and less rigorous on General Kabiligi.110

108 Id. at Declaration of the Trial Chamber on A Point of Law (Apr. 22, 1999). 109 Prosecutor v. Rusatira, Case No. ICTR-2002-80-I, Decision of the Trial Chamber on the Prosecutor’s Exparte Application for Leave to Withdraw the Indictment (Aug. 14, 2002). Col. Rusatira was the Commander of High Military School (Ecole Superienure Militaire (ESM)) and also exercised the functions of Directeur de Cabinet of the Rwanda Defence Ministry for many years. During 1994 Col. Rusatira worked alongside the UNAMIR that was originally established to help implement the Arusha Peace Agreement signed by the Rwanda Government and the Rwanda Patriotic Front (RPF) on August 4, 1993. 110 Col. Bagosora was charged jointly with Gen. Kabiligi and two others. The Prosecution focused on adducing evidence against their key accused, Col. Bagosora and neglected a similar focus on Gen. Kabiligi who was acquitted for “lack of evidence.” See Bagosora, Case No. ICTR-98-41-T, Judgement and Sentence of the Trial Chamber (Dec. 18, 2008). 474 obote-odora

A second flaw is the mistaken assumption that an indictment must provide an overview of all the events in Rwanda and its history including facts that happened many years before the 1994 genocide. This approached guided the drafting of very long and bulky indictments in Bagosora et al.,111 Karemera et al.112 and Butare.113 Multi-accused indictments, with several accused, and comprising many counts, generate many interlocutory motions on defects in indictments, disclosure obligations and other motions seeking exclusion of evidence.114 The practice is bad for judicial economy as these cases tend to take many years to conclude because of the large numbers of witnesses involved, both for the Prosecution and Defense.115 In practice, shorter indictments are often more precise, clearer and unam- biguous, and this has the advantage of limiting the number of preliminary motions filed after confirmation based on alleged defects in indictments. At trial, fewer witnesses, both for the Prosecution and Defense, are summoned to testify. It is not suggested that long indictments per se are necessarily defective or bad in law. On the contrary, some long indictments may be necessary,

111 Prosecutor v. Bagosora, Case No. ICTR-96-7 (Aug. 12, 1999). The initial Bagosora indictment which comprised 29 military officers was not confirmed. Later a revised draft was submitted and confirmed. However, the indictment was still very unmanageable and had to be divided into two cases: Military I and Military II. See Military I case: Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T (Dec. 18, 2008); Military II case, Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T (May 17, 2011). 112 Prosecutor v. Karemera, Case No. ICTR-97-24-I, was an equally huge indictment charging all government ministers in the Interim Government. The indictment was eventually separated into two cases: Government I and Government II cases. 113 Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-97-21. This indictment brought together all senior politicians from Butare under one indictment. The case of the six accused, known as the Butare cases, lasted 10 years. 114 See e.g., Prosecutor v. Kabiligi, Case No. ICTR-97-34; Prosecutor v. Bagambiki, Case No. ICTR-97-36; Prosecutor v. Ntagerura, Case No. ICTR-96-10A. 115 After several delays, the Bagosora et al. trial started on August 30, 2001. It took 408 days to conclude. Trial Chamber delivered judgement on December 18, 2008. See Prosecutor v. Bagosora et al. (“Military I”), Case No. ICTR-41-T. The Nyiramasuhuko et al. trial lasted for 9 years. Also after several delays, the trial commenced on April 19, 2001. It took 726 days to conclude, and the Trial Chamber delivered judgement on June 24, 2011. The appeal is still pending at the time of writing this article. See Prosecutor v Nyiramasuhuko et al. (“Butare case”), Case No. ICTR-97-21-T. It took 10 years to conclude the trial phase of the Karemera et al. case. Again, after many delays, the trial started on November 27, 2003. It took 374 days to conclude, and judgement was delivered on February 2, 2012. The trial lasted 9 years. See Prosecutor v Karemera et al. (“Government I”), Case No. ICTR-97-24. In all three cases cited above, both the Prosecution and Defense called many witnesses. Similarly, the Media, Military II and Government II cases lasted between 9 and 10 years. jallow’s contribution to international criminal justice 475 depending on the facts of each case. This is particularly true of crimes committed as a result of complex contextual facts. However, multi-accused indictments should be an exception rather than the rule. In drafting indictments on counts as serious as genocide, crimes against humanity or war crimes, the Prosecutor is always faced with the question of who of the many suspected perpetrators should be indicted. The organizational structure of the party, military or state machinery that plans, organizes and executes a plan that results in the killing or extermination of a people, in whole or in part, is so immense that any prosecutor in any court would find it difficult to ascertain, search for, arrest, indict and prosecute every single person suspected of involvement. Even if the OTP were to adopt a policy of prosecuting only “major criminals”, and to leave suspects it considers “minor criminals” for prosecution by the Rwanda national courts, the problem of determining who is, and who is not, a “major criminal” would still be problematic. Consequently, only a tiny fraction of persons responsible for the commission of such horrendous crimes are eventually arrested, indicted and ultimately prosecuted at the ICTR.116 That is all the more reasons why cases prosecuted at the ICTR must be conducted at the highest possible international standard. It is not enough just to arrest and charge a suspect. The indictment itself must be sufficient to sustain the allegations made against an accused. A defective indictment leads to a miscarriage of justice. It is therefore in the interest of all parties, including the victims, survivors and the accused that indictments provide, as far as possible, the allegations made again an accused, and simultaneously disclose the crime or crimes the accused is alleged to have committed. Defects in indictments should not be permitted to derail the quest for justice, nor should the drafting of defective indictments be condoned. It is in this context, and the track record of the OTP, that Prosecutor Jallow, in early 2004, decided to hold an OTP workshop to review the policy and practice of drafting indictment. The Deputy Prosecutor, Chief of ALAD, Chief of Prosecutions, Senior Trial Attorneys, Senior Appeal Counsels, Trial Attorneys, Legal Advisors and investigators, attended the workshop, chaired by the Prosecutor. The workshop reviewed the practice of drafting indictments since the ICTR’s inception. Areas in need of reform were identified. It was agreed, among other things, to exclude references to historical context, local and public administrations, political parties, the armed forces and the militias from any future indictment. Instead, specific allegations relating to acts and omissions of an accused are to be enumerated under concise statement of facts. Specificity of allegations was deemed impor-

116 Alex Obote-Odora, Drafting of Indictments for the International Criminal Tribunal for Rwanda, 12 Crim L.F. 335 (2001). 476 obote-odora tant to underpin allegations against an accused. To that extent, each paragraph of a supporting statement is to be corroborated by at least two or more witnesses. The lead investigators in the case, or their representatives, are to form part of the indictment drafting team. The inclusion of investigators on the drafting team functions to facilitate the verification of the facts of the case as accurate and credible as at the time of drafting. As part of a drafting team, investigators are best placed to comment on the health of witnesses and on whether they are likely to be available at a future trial. If the health of a witness is very poor, an early decision is made whether to rely on the statement of that witness or to seek alternative witnesses or take and preserve the deposition for future trial. Counsels from ALAD became part of the indictment drafting team with the primary responsibility of providing contemporaneous decisions from the Appeals Chambers, particularly on cur- ing defects in indictments and the process of timely and consistent amendment of indictments. Further, the Prosecutor decided that an indictment shall be precise and brief. All supporting materials and exhibits must be verified and confirmed to be accurate and credible at the time of drafting and submission of indictment for confirmation. The single-accused indictments are to comprise of few counts, fewer witnesses and will rely on Rules 92 bis and 94 of the ICTR RPE to introduce evidence at trial as opposed to summoning many witnesses for oral testimony. The Prosecutor described this new policy as “lean and mean” indictments.117 Prior to submitting an indictment for confirmation, the draft indictment is reviewed by the STAs/SACs in a meeting called for that specific purpose. The Indictment review meeting is chaired by the Prosecutor and in his absence, the Deputy Prosecutor. Both the Chief of Prosecutions and Chief of ALAD attend the review sessions. A Senior Trial Attorney in charge of the case presents the draft indictment at the review session. The draft indictment is critiqued and

117 Examples of “lean and mean” indictments include: Prosecutor v. Muhimana, Case No. ICTR-95-IB-I (lasting for 48 days, including appeals); Prosecutor v. Nchamihigu, Case No. ICTR-01-63-I (lasting for 58 days); Prosecutor v. Simba, Case No. ICTR-01-76-T (lasting for 56 days); Prosecutor v. Mpambara, Case No. ICTR-01-65-T (lasting for 31 days). None of the trials lasted for more than 60 working days. Other “lean and mean” indictments which resulted in guilty pleas include: Prosecution v. Bisengimana, Case No. ICTR-00-60-T, Judgement and Sentence of the Trial Chamber (Apr. 13, 2006); Prosecutor v. Nzabirinda, Case No. ICTR-2001-77, Judgement and Sentence of the Trial Chamber (Feb. 23, 2007); Prosecutor v. Rugambarara, Case No. ICTR-00-59-T, Sentencing Judgement of the Trial Chamber (Nov. 16, 2007); Prosecutor v. Rutaganira, Case No. ICTR-95-IC-T, Judgement and Sentence of the Trial Chamber (Mar. 14, 2005); Prosecutor v. Serugendo, Case No. ICTR- 2005-84-I (June 12, 2006). jallow’s contribution to international criminal justice 477 necessary amendments or modifications are made. Thus, the OTP as a whole owns the indictment.

5 Conclusion

The OTP internal reforms since 2003 have created a positive environment for the development of international criminal law at the ICTR. Rule 11 bis of the ICTR RPE, for example, made it possible to transfer cases to national jurisdictions. It also set minimum threshold for the prosecution of international crimes by national courts with Rwanda being the primary beneficiary of the legal reforms. Rule 71 bis of ICTR RPE now guarantees that a fugitive cannot wait out the mandate of the Tribunal and evade justice. When eventually arrested, Rule 71 bis of ICTR RPE ensures that there shall be credible evidence to conduct a fair and impartial trial. A sustained use of judicial notice, not only to admit statements in evidence but also to shield victims of rape and sexual violence from recurrent trauma through invasive and persistent cross-examination was a positive, as it provided protection to witnesses from giving oral testimony which could expose them to intrusive cross examination from Defense counsels. Although the Prosecutor must still introduce evidence demonstrating that the specific events alleged constituted genocide and that the conduct and mental state of the accused specifically met the thresholds for genocide, by eliciting evidence of rape and sexual assault from witnesses who were themselves not victims, spared other prosecution witnesses who were direct victims of rape from traumatic cross- examinations. In this respect, the Prosecutor’s policy shielded witnesses from perpetrators of these horrendous crimes while ensuring that credible and relevant evidence were placed before the Chamber without the need for victims as witnesses to appear in court to testify. This policy was reinforced by further reliance on Rules 92 bis and 94 of ICTR RPE to admit evidence in court without calling witnesses to testify. The new policy adopted by Prosecutor Jallow on drafting “lean and mean” indictments had much greater impact in the prosecution of international crimes than it is generally appreciated. In sum, Justice Jallow has made outstanding contributions to the development of international criminal justice. These contributions have helped to advance the successful fulfillment of the ICTR mandate, and positively contribute to the realization of the Security Council mandated Completion Strategy. In addition, they provide examples of best practice in international criminal prosecutions that could be useful for the ICC and domestic jurisdictions willing or able to prosecute serious atrocity crimes. chapter 22 Monitoring and the Referral of Criminal Cases between Jurisdictions An ICTR Contribution to Best Practice

Joanna Harrington

1 Introduction

As its Statute indicates, the International Criminal Tribunal for Rwanda (ICTR), like the International Criminal Tribunal for the former Yugoslavia (ICTY),1 grants a “power to prosecute persons” responsible for serious crimes that is held concurrently with national courts, but with the international tribunal having primacy.2 Indeed, the ICTR’s Statute (like that of the ICTY) expressly stipulates that the tribunal “may formally request national courts to defer to its competence” so as to accord precedence to international proceedings.3 Over time, this “power to prosecute persons” has become focused on the most senior leaders suspected of being the most responsible, leaving the mid- and lower- ranked accused to be prosecuted by national courts. Given the number of perpetrators involved, a narrowing of focus was inevitable;4 but the need to wind up the work of the two Tribunals, as required by the Security Council in 2003,5 and then reiterated in 2004,6 has also encouraged the transfer of cases from the international arena to competent national authorities, whether at an inves-

1 Statute of the International Tribunal, S.C. Res. 827, arts 1–5, 9, U.N. Doc. S/2507 (May 25, 1993). 2 See Statute of the International Tribunal for Rwanda, S.C. Res. 955, arts 1–4, 8, U.N. Doc. S/RES/ 955 (Nov. 8, 1994). For discussion within the ICTY context, see David Tolbert & Aleksander Kontic, “The International Criminal Tribunal for the Former Yugoslavia: Transitional Justice, the Transfer of Cases to National Courts, and Lessons for the ICC”, in The Emerging Practice of the International Criminal Court 135, 136 (Carsten Stahn & Göran Sluiter, eds., 2009). 3 Statute of the International Tribunal for Rwanda, supra note 2, art 8(2). 4 See Hassan B. Jallow, “Prosecutorial Discretion and International Criminal Justice” 3 J. Int’l Crim. Just. 145, 150–51 (2005). 5 S.C. Res. 1503, ¶ 7, U.N. Doc. S/RES/1503 (Aug. 28, 2003) (calling upon the ICTY and ICTR “to take all possible measures to complete investigations by the end of 2004, to complete all trial activities at first instance by the end of 2008, and to complete all work in 2010 (the Completion Strategies).”). 6 S.C. Res.1534, U.N. Doc. S/RES/1534 (Mar. 26, 2004).

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_023 monitoring and referral of cases between jurisdictions 479 tigatory stage or with a confirmed indictment, with “referral” being the term used for the transfer of an ICTR indictment. While controversial with respect to Rwanda, the referral of cases from the international to the national jurisdiction is not without oversight, and it is the intention of this chapter to show that the development of a mechanism for monitoring the referral of cases from one jurisdiction to another has made an important contribution to the development of best practices, with potential application to the law and policy on the cross-jurisdictional surrender of persons wanted for trial more generally. This review of the referral of ICTR cases to national jurisdictions also recognizes the efforts and tenacity of the ICTR’s Chief Prosecutor, Hassan Bubacar Jallow, who showed a willingness to adapt to both change and criticism, but always kept in sight the goal of building national capacities to allow for trials to take place where the crimes occurred.7 In this chapter, I examine the effort undertaken to refer cases from the ICTR to national courts using a chronological narrative to illustrate how the work of the Office of the Prosecutor had to adapt over time to meet a number of obstacles and challenges. A useful source for this narrative has been the progress reports made by the ICTR to the Security Council as part of the tribunal’s Completion Strategy,8 as well as the tribunal’s referral jurisprudence.9 I begin with a review of the rule that guides the referral of cases, followed by a consideration of the ICTR’s experience with this rule. As will be discussed, the first

7 See, for example, the case made by the former Dean of the Law School at the National University of Rwanda. Jean-Marie Kamatali, “From the ICTR to ICC: Learning from the ICTR Experience in Bringing Justice to Rwandans” 12 New Eng. J. of Int’l & Comp. L. 89, 89–103 (2005). 8 Completion Strategy reports were submitted by the President of the ICTR to the President of the Security Council on April 30, 2004, November 19, 2004, May 23, 2005, November 30, 2005, May 29, 2006, December 8, 2006, May 31, 2007, November 20, 2007, May 13, 2008, November 21, 2008, May 14, 2009, November 9, 2009, May 25, 2010, November 1, 2010, May 2, 2011, November 4, 2011, May 11, 2012, November 5, 2012, May 10, 2013, November 13, 2013, May 15, 2014 and November 19, 2014 9 For a considered analysis of this jurisprudence by the former head of the Appeals and Legal Advisory Division within the ICTR’s Office of the Prosecutor, see the chapter by Alex Obote- Odora in this volume as well as his earlier article, “Transfer of Cases from the International Criminal Tribunal for Rwanda to Domestic Jurisdiction”, 5 Afr. J. Legal Stud. 147, 147–80 (2012). For an earlier, but still useful, discussion, see William A. Schabas, “Anti-Complementarity: Referral to National Jurisdictions by the UN International Criminal Tribunal for Rwanda”, 13 Max Planck Y.B. of United Nations Law 29, 29–60 (2009). A number of student-authored notes have also been written, including most recently, Jennifer Wren Morris, “The Trouble with Transfers: An Analysis of the Referral of Uwinkindi to the Republic of Rwanda for Trial”, 90 Wash. U. L. Rev., 505–41 (2012). 480 harrington

ICTR referrals took place in 2007, involving the national jurisdiction of France, with a major setback in 2008 delaying the referral of indictments to Rwanda until 2011. I also discuss the role for the residual mechanism created in 2010 to assume the ICTR’s functions after its closure, with the monitoring of the eight indictments now referred to Rwanda being one of the assumed tasks.10 Two of the eight indictees are in custody, and with the trial of the first having only begun in May 2014,11 and then followed by further delays, it is too early to draw definitive conclusions. Nevertheless, the legal and diplomatic efforts exerted by the Prosecutor to secure the referral of these cases have induced change and the adoption of new standards in Rwanda, and elsewhere, with the need for both post-transfer monitoring and oversight being both a consistent theme and a potential contribution to best practice.

2 Rule 11 bis

Adopted first in 1997 and then revised in 2002,12 (and amended several times since),13 Rule 11 bis of the ICTY (and then ICTR)’s Rules of Procedure and Evidence (RPE) governs the referral of cases from the international criminal tribunals to

10 The eight indictments referred from the ICTR to Rwanda concern the pastor Jean Uwinkindi, former mayors Charles Sikubwabo, Ladislas Ntaganzwa and Aloys Ndimbati, former police inspector Fulgence Kayishema, former restaurant owner Charles Ryandikayo, Lieutenant- Colonel Phénéas Munyarugarama, and former party official Bernard Munyagishari. Six of the eight remain at large, with only Uwinkindi and Munyagishari being in custody. 11 “Trial Begins of First ICTR Accused Transferred to Rwanda”, Hirondelle News Agency (May 15, 2014), http://www.hirondellenews.com/ictr-rwanda/409-rwanda-justice/34690- 150514-rwandajustice-trial-begins-of-first-ictr-accused-transferred-to-rwanda. 12 Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-PT, Decision on Referral of Case under Rule 11 bis, ¶ 2 (Int’l Crim. Trib. for the Former Yugoslavia May 17, 2005); Prosecutor v. Gojko Janković, Case No. IT-96-23/2-PT, Decision on Referral of Case under Rule 11 bis, ¶ 2, (Int’l Crim. Trib. for the Former Yugoslavia July 22, 2005). 13 For an account of the rule’s history, focusing on the ICTY, see Michael Bohlander, “Referring an Indictment from the ICTY and the ICTR to Another Court: Rule 11bis and the Consequences for the Law of Extradition”, 55 Int’l & Comp. L. Q. 219, 219–26 (2006). The first ICTY referrals took place in 2005, concerning the paramilitary leaders Radovan Stanković and Gojko Janković. See Prosecutor v. Radovan Stanković, supra note 12; Prosecutor v. Gojko Janković, supra note 12. Each was convicted by the State Court of Bosnia and Herzegovina in 2007, with Stanković later escaping from prison. He was re-captured in 2012. See Press Release, International Criminal Tribunal for the Former Yugoslavia, Statement of the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia on the Arrest of Radovan Stanković, (Jan. 21, 2012), available at http://www.icty.org/sid/10892. monitoring and referral of cases between jurisdictions 481 national courts. These are judge-made rules designed to complement the provisions on the “deferral” of cases found in the Statutes of the ICTY and ICTR, as well as the rules, concerning the transfer of cases from the national to the international level. Since the adoption in 2003 of the Completion Strategies for both tribunals, the use of Rule 11 bis has gained greater importance, although its purpose is not solely to reduce the caseload of the international tribunals.14 As will be demonstrated, referrals also encourage the building of national capacities to prosecute international crimes, with the activities undertaken to accomplish referrals, such as the sharing of evidence and instigation of changes to domestic laws to ensure jurisdiction, the review of fair trial practices, and the improvement of witness and victim protection schemes, serving as a means to strengthen the relevant national legal orders.15 It is also this strengthening of national judicial systems that has been expressly recognized by the Security Council as “crucially important to the rule of law in general and to the implementation of the ICTY and ICTR Completion Strategies in particular.”16 In its initial form, the ICTR’s Rule 11 bis focused on transferring the case of a person in custody to the state in which the accused was arrested, or to another state if the authorities of the arresting state did not object.17 However, within two years, the rule was amended, as a result of recommendations made by an ad hoc committee on the transfer of cases established within the Tribunal and the express recognition of referrals as “an important component of the Completion Strategy.”18 As a result, the 2004 edition of the ICTR’s Rule 11 bis allowed for the transfer of indictees both in custody and at large, and also allowed transfers

14 By contrast, the system established at Nuremberg has been described as “no more than a mere division of labour to achieve a common goal” given that the trials in that two-level system were “conducted under the control of the Allies.” Mohamed M. El Zeidy, “From Primacy to Complementarity and Backwards: (Re)-Visiting Rule 11 Bis of the Ad Hoc Tribunals”, 57 Int’l & Comp. L. Q. 403, 411 (2008). 15 Similar benefits have flowed from the transfer of cases from the ICTY. See Tolbert & Kontic, supra note 2. 16 S.C. Res. 1534, supra note 6, at ¶ 9. 17 See Press Release, International Criminal Tribunal for Rwanda, Twelfth Plenary Session of the Tribunal (July 8, 2012), available at http://www.unictr.org/tabid/155/Default .aspx?id=4. See, for analysis, A. Marong, C. C. Jalloh and D. M. Kinnecome, “Concurrent Jurisdiction at the ICTR: Should the Tribunal Refer Cases to Rwanda?” (2007) in Human Rights to International Criminal Law Studies in honour of an African jurist: Judge Laity Kama, Emmanuel Decaus (ed.), pp. 59–201 (Leiden: Martinus Nijhoff Brill, 2007). 18 U.N. SCOR, 59th Sess., 4999th mtg. at 18, U.N. Doc. S/PV.4999 (June 29, 2004). 482 harrington to “any State willing to prosecute the accused in its own courts.”19 A fair trial criterion was also added to Rule 11 bis to require a Trial Chamber, when deciding whether to refer a case, to “satisfy itself that the accused will receive a fair trial with due process in the courts of the State concerned.”20 This change was made, in the words of then ICTR President Erik Møse, to ensure that “cases will not be transferred to jurisdictions that do not obtain minimum guarantees of procedural fairness and international human rights.”21 Mention was also made in the rule of the Trial Chamber’s ability to “order that protective measures for certain witnesses or victims remain in force.”22 A year later, Rule 11 bis underwent another revision,23 resulting in the clarification that the designated Trial Chamber could order the referral of an indictment “to the authorities of a State: (i) in whose territory the crime was committed; or (ii) in which the accused was arrested; or (iii) having jurisdiction and being willing and adequately prepared to accept such a case.”24 The 2005 version also required the Trial Chamber to satisfy itself “that the death penalty will not be imposed or carried out,”25 thus ensuring the application of a fairness of punishment criterion, as well as a fairness of trial criterion, for the successful transfer of a case between jurisdictions. When an order of referral is made, the ICTR’s Rule 11 bis has, since its beginning, permitted the Prosecutor to provide to the national authorities all of the information relating to the case that “the Prosecutor considers appropriate.”26 It has also permitted the Prosecutor to send observers to monitor the proceedings before the national courts,27 and its terms have always made clear that a referral order may be rescinded (or “revoked” to use the verb found in later versions) upon the application of the Prosecutor and “upon having given to the authorities of the State concerned the opportunity to be heard.”28

19 “Amendments 14th Plenary Session”, Int’l Crim. Tribunal for Rwanda 2 (April 23–24, 2004), http://www.unictr.org/Portals/0/English/Legal/Evidance/English/ICTR-Rules- Amendments-2004-May-EN-FR.pdf. 20 Id. at 3. 21 U.N. SCOR, 59th Sess., 4999th mtg. at 12, U.N. Doc. S/PV.4999 (June 29, 2004). 22 Amendments 14th Plenary Session, supra note 19, at 3. 23 “Amendments Adopted at the Plenary Session of the Judges”, ICTR 15th Plenary Session (May 21, 2005), http://www.unictr.org/Portals/0/English/Legal/Evidance/English/ amendments.pdf. 24 Id. at 2. 25 Id. 26 Id. at 3. 27 Id. at 3. 28 Id. On revocation as a penalty if the state fails to conduct proper proceedings, or fails to diligently prosecute or provide a fair trial, see El Zeidy, supra note 14, at 405–06. monitoring and referral of cases between jurisdictions 483

On 1 April 2011, Rule 11 bis was once again amended, this time to ensure a role for the judges, as well as the Prosecutor, with respect to both monitoring and revocation.29 The amendments were brief and focused. Rule 11 bis (D)(iv) was amended so as to allow the Trial Chamber, as well as the Prosecutor, to send observers to monitor the national proceedings, with the observers sent by a Trial Chamber to report through the Registrar to the ICTR President. As for the revocation of an order referring a case to a national court, the amended version of Rule 11 bis (F) now made clear that such an action could be initiated by either the Trial Chamber or the Prosecutor, thus suggesting an avenue for judicial oversight with respect to a Prosecutor’s response to negative monitoring reports.

3 The ICTR Experience with Rule 11 bis Referrals

The use of Rule 11 bis within the context of the ICTR has met with varying degrees of success, with the requests concerning Rwanda attracting the most interest. As indicated in the ICTR’s Completion Strategy of September 2003, the then newly-appointed Prosecutor had identified some 40 cases that could be transferred to national jurisdictions, with some cases being described as “trial ready” while others needed further investigations.30 It was also made clear that the Prosecutor had “plans to transfer some of these cases to Rwanda for trial”31 notwithstanding the recognition that: “At the moment, transfer is made difficult by the fact that Rwandan law prescribes the death penalty as a sentence for certain crimes.”32 Nonetheless, by the end of 2005, it was reported that some 30 dossiers had been transferred to Rwanda (with another file transferred to Belgium).33 A further 25 files were handed over to the Rwandan Prosecutor General in June 2010.34

29 “Amendments Adopted at the Plenary Session of the Judges”, ICTR Twenty-Third Plenary Session (Apr. 1, 2011), http://www.unictr.org/Portals/0/English/Legal/Evidence/English/ 110401Amended%20Rule%2011%20bis_e&f.pdf. 30 U.N. Secretary-General, Letter dated Oct. 3, 2003 from the Secretary-General addressed to the President of the Security Council, ¶ 23, U.N. Doc. S/2003/946 (Oct. 3, 2003). 31 Id. 32 Id. 33 President of the International Criminal Tribunal for Rwanda, Letter dated Dec. 5, 2005 from the President of the International Criminal Tribunal for Rwanda addressed to the President of the Security Council, ¶¶ 7, 40, U.N. Doc. S/2005/782, (Dec. 5, 2005) [hereinafter December 2005 Report]. 34 President of the International Criminal Tribunal for Rwanda, Letter dated Nov. 5, 2010 from the President of the International Criminal Tribunal for Rwanda addressed to the 484 harrington

With respect to the referral of indictments, from April 2004 on, it was reported to the Security Council that the Prosecutor intended to refer five of the indictees then detained in Arusha to national jurisdictions, with the selection criteria having included “the alleged status and extent of participation of the individual in the genocide.”35 Concern was, however, expressed that both jurisdictional and resource constraints made referrals to some countries difficult,36 and with respect to Rwanda, there were capacity problems given the difficulties faced by the Rwandan judicial system “in coping with thousands of local cases connected with the genocide.”37 Mention, however, was also made of the Prosecutor’s insistence “on compliance with international standards of fair trial on the files transmitted.”38 In his oral address to the Security Council in June 2004, the Prosecutor drew attention to the “urgent” need for “the completion and equipping of a courtroom for the purpose of holding trials in Kigali”39 and also used the opportunity to confirm “that the Rwandan Government [had] indicated to [the ICTR] that they would be ready to take the necessary measures to waive the death penalty with regard to all transferees.”40 Additional referrals were also intended for a number of indictees at large, with the Prosecutor suggesting at first four more planned referrals,41 then later eight (taking into account newly indicted persons),42 and by 2006, the total was twelve, for an overall plan for seventeen cases to be taken through Rule 11 bis (adding in the five detainees).43 The plan, however, suffered a setback in mid-2006, when the prosecution’s very first Rule 11 bis request – concerning

President of the Security Council, ¶ 67, UN Doc. S/2010/574 (Nov. 5, 2010) [hereinafter November 2010 Report]. 35 President of the International Criminal Tribunal for Rwanda, Letter dated Apr. 30, 2004 from the President of the International Criminal Tribunal for Rwanda addressed to the President of the Secretary of the Security Council, ¶¶ 4, 14–15, 36 (Apr. 30, 2004) [hereinafter April 2004 Report]. For discussion of the selection criteria, see Jallow, supra note 4, at 152–54. 36 April 2004 Report, supra note 35, at ¶ 37; see also Obote-Odora, supra note 9 at 170–71. 37 April 2004 Report, supra note 35, at ¶ 38. 38 Id. at ¶ 39. 39 U.N. SCOR, 59th Sess., 4999th mtg. at 19, U.N. Doc. S/PV.4999 (June 29, 2004). 40 Id. at 18 (Resumption I). 41 April 2004 Report, supra note 35, at ¶¶ 5, 36. 42 President of the International Criminal Tribunal for Rwanda, Letter dated May 23, 2005 from the President of the International Criminal Tribunal for Rwanda addressed to the President of the Security Council, ¶ 37, U.N. Doc. S/2005/336 (May 23, 2005); see also December 2005 Report, supra note 33, at ¶¶ 5, 38, 40. 43 President of the International Criminal Tribunal for Rwanda, Letter dated May 29, 2006 from the President of the International Criminal Tribunal for Rwanda addressed to the monitoring and referral of cases between jurisdictions 485 the desired referral of the Michel Bagaragaza case to Norway – was rejected by an ICTR Trial Chamber on 19 May 2006 on the grounds that Norway lacked the jurisdiction to try the accused as it had no provision against genocide (as distinct from homicide) in its domestic criminal code.44 A year later, this same case became the prosecution’s first successful referral, with the Trial Chamber approving a fresh request to refer the case to the Netherlands;45 however, by June 2007, a Dutch court had ruled in a similar case that it did not have jurisdiction to try a Rwandan citizen for genocide, with the required monitoring of post-referral developments leading to a successful application for revocation.46 Clearly, the Prosecutor must have been disappointed, with Bagaragaza’s voluntary surrender to the ICTR in 2005 having been secured by an agreement that he would be transferred to a suitable national court.47

President of the Security Counsel, ¶ 39, U.N. Doc. S/2006/358 (May 29, 2006) [hereinafter May 2006 Report]. 44 Prosecutor v. Michel Bagaragaza, Case No. ICTR-2005-86-R11bis, Decision on the Prosecution Motion for Referral to the Kingdom of Norway (May 19, 2006) (upheld on appeal in Prosecutor v. Michel Bagaragaza, Case No. ICTR-05-86-AR11ibis (Aug. 30, 2006)); see also, Lisa Yarwood & Beat Dold, “Towards the End and Beyond: The ‘Almost’ Referral of Bagaragaza in Light of the Completion Strategy of the International Criminal Tribunal for Rwanda”, 6 Chinese J. Int’l L., 95–114 (2007). Norway subsequently amended its laws, and in 2013, a Norwegian court sentenced Sadi Bugingo, a man of Rwandan origin, who had become a Norwegian citizen, in the country’s first ever genocide trial. “Rwandan Sentenced to 21 Years in Norway”, Hirondelle News Agency (Feb. 14, 2013), http://www.hirondellenews. com/ictr-rwanda/410-rwanda-other-countries/34085-140213-norvegerwanda-rwandan- sentenced-to-21-years-in-norway. 45 Prosecutor v. Michel Bagaragaza, Case No. ICTR-2005-86-R11bis, Decision on Prosecutor’s Request for Referral of the Indictment to the Kingdom of the Netherlands (Apr. 13, 2007). 46 As explained with reference to the case of Rwandan militiaman Joseph Mpambara before the Netherlands District Court in Prosecutor v. Michel Bagaragaza. Bagaragaza was a senior public official who used his role in the tea industry of Rwanda to assist soldiers and militia to carry out the killings of Tutsi people. He was eventually convicted before the ICTR on 17 November 2009 of one count of complicity in genocide, taking into account a guilty plea. In 2011, he became the first prisoner before the ICTR to be granted early release. As for Mpambara, he was found guilty by a Dutch court of war crimes for his role in a massacre at Mugonero church, with the Dutch courts at that time not having jurisdiction to try genocide cases. See “First Genocide Trial Starts Before a Dutch Court”, Hirondelle News Agency (Oct. 23, 2012), http://www.hirondellenews.com/ictr-rwanda/410- rwanda-other-countries/33823-231012-rwandanetherlands-first-genocide-trial-starts- before-a-dutch-court. 47 Bagaragaza, supra note 44, ¶ 1, n.1 (the agreement was kept confidential “because their disclosure would constitute a security risk to the Accused and his family.”). 486 harrington

In light of these difficulties, it was understandably “a welcome development” to note in a December 2006 report to the Security Council that Rwanda was considering a proposal to abolish the death penalty,48 and then in a 2007 report, that Rwanda had “promulgated a law which, among other things, excludes the application of the death penalty to cases referred from the ICTR or from States.”49 Moreover, with no other country in Africa having agreed to accept referrals,50 and with the adoption of a new law in Rwanda aimed specifically at guaranteeing fair trials for transferees,51 the Prosecutor had decided the time had come to try to refer several indictments to Rwanda. It should also be noted that efforts at building capacity within Rwanda had also been undertaken by the Office of the Prosecutor, including the holding of training seminars and briefings for Rwandan lawyers and judges, as well as an attachment (secondment) program.52 Later, in 2010, the ICTR Registry supported these efforts by offering training for Rwandan personnel on victim and witness protection, while Germany helped fund a video-link project for the Rwandan

48 President of the International Criminal Tribunal for Rwanda, Letter dated Nov. 30, 2006 from the President of the International Criminal Tribunal for Rwanda to the President of the Security Council, ¶ 36 U.N. Doc. S/2006/91 (Nov. 30, 2006). 49 President of the International Criminal Tribunal for Rwanda, Letter dated May 23, 2007 from the President of the International Criminal Tribunal for Rwanda addressed to the President of the Security Council, ¶ 38, U.N. Doc. S/2007/323 (May 23, 2007) [hereinafter May 2007 Report]. 50 President of the International Criminal Tribunal for Rwanda, Letter dated Nov. 16, 2007 from the President of the International Criminal Tribunal for Rwanda addressed to the President of the Security Council, ¶ 34, U.N. Doc. S/2007/676 (Nov. 16, 2007) [hereinafter November 2007 Report]. 51 Id. at ¶ 35. The relevant provisions of the Rwandan “Transfer Law,” as well as practical details concerning judicial and courtroom capacities, and the capacities of the Rwandan Bar, are outlined in the amicus curiae brief of the Republic of Rwanda submitted in the unsuccessful referral case of Prosecutor v. Gaspard Kanyarukiga. See Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-02-78-1, (Nov. 22, 2007). The provisions of the Transfer Law, as well as statistical data and other details concerning Rwanda’s efforts to secure and protect witnesses, can also be found annexed to the amicus curiae brief submitted on behalf of the Government of Rwanda to the Appeals Chamber in the referral case of Prosecutor v. Yussuf Munyakazi (July 28, 2008). 52 May 2006 Report, supra note 43 at ¶ 41 & Annex 5; see also May 2007 Report, supra note 49 at ¶ 38 & Annex 5. One insider also reports that “Rwanda cooperated with the Prosecutor by working closely with the internal prosecutorial Rule 11bis committee.” See Obote- Odora, supra note 9, at 153. monitoring and referral of cases between jurisdictions 487

Supreme Court to provide a means of taking evidence from protected witnesses.53 A referral decision, however, is a judicial one, and by late 2008 and early 2009, the Prosecutor had to report that all five of his requests for the referral of cases to Rwanda had been denied by the Tribunal’s judges,54 due largely to concerns about the potential for an accused to face solitary confinement post- conviction, and the availability and protection of defence witnesses from within and outside Rwanda.55 (The court considered the conditions of detention to be “a matter which touches upon the fairness of a jurisdiction’s criminal justice system.”)56 In response, Rwanda amended its law so as to exempt transferees from solitary confinement upon conviction,57 and in 2009, it was reported that Rwanda was “in the process of further amending its laws in order to remove any remaining legal hurdles for the transfer of cases from the Tribunal to be heard in Rwanda.”58 It was also announced that the “critical issue of witness

53 November 2010 Report, supra note 34, at ¶ 67. On testifying by video-link, see Schabas, supra note 9, at 45–46. 54 President of the International Criminal Tribunal for Rwanda, Letter dated November 21, 2008, from the President of the International Criminal Tribunal for Rwanda addressed to the President of the Security Council, P 51, U.N. Doc. S/2008/726 (Nov. 21, 2008) [hereinafter November 2008 Report]; President of the International Criminal Tribunal for Rwanda, Letter dated May 14, 2009 from the President of the International Criminal Tribunal for Rwanda addressed to the President of the Security Council, ¶ 49, U.N. Doc. S/2009/247 (May 14, 2009) [hereinafter May 2009 Report]. 55 Id., at ¶ 51; see, e.g., Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36-R11bis, Decision on the Prosecutor’s Request for Referral of Case to the Republic of Rwanda, (May 28, 2008) (upheld on appeal in Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral on Rule 11 bis, (Oct. 8, 2008)). The five attempted referrals are also summarized in the judgment of the Fifth Section of the European Court of Human Rights in Ahorugeze v. Sweden. See Ahorugeze v. Sweden, App. No. 37075/09, ¶¶ 46–49, (ECHR 2011), available at http://hudoc.echr.coe.int. 56 Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36-R11bis, Decision on the Prosecutor’s Request for Referral of Case to the Republic of Rwanda, ¶ 21, (May 28, 2008). Developed in cooperation with the Office of the Prosecutor, and with funding provided by the Netherlands, a special wing of a new prison facility in Mpanga had been designated for transferred prisoners, with a new wing of the Kigali Central Prison to be used during trial. See Schabas, supra note 9, at 52. 57 November 2008 Report, supra note 54, at ¶ 51. 58 May 2009 Report, supra note 54, at ¶ 49. Extensive excerpts from the amended Transfer Law, being Organic Law no. 11/2007 of March 16, 2007 concerning the Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States, as amended by Organic Law no. 03/2009 of May 26, 2009, can be found in Ahorugeze v. Sweden. See Ahorugeze v. Sweden, supra note 55, at ¶ 34. Schabas explains 488 harrington security is being addressed through the establishment of a witness protection service within the Rwandan judiciary.”59 As for other options, only three countries, in addition to Rwanda, had agreed to accept referrals from the ICTR, with all three being countries in Europe.60 Notwithstanding his earlier lack of success with Norway and the Netherlands, in June 2007, the Prosecutor made requests for the referral of two indictments to France, receiving Trial Chamber approval for both requests in November 2007.61 Both indictees were present in France, with France prepared to exert jurisdiction on the basis of the universality principle for serious international crimes. While the Trial Chamber was satisfied that France would provide a fair trial, with adequate provision to be made, where necessary, for the protection of witnesses, the court also recognized expressly within its order the intention of the Prosecutor to send observers “to monitor the proceedings before the French courts,” with the Prosecutor to provide regular updates to the Chamber.62 The French prosecutorial authorities have since spent much time investigating these cases, prompting the Prosecutor himself to undertake several missions to Paris to assess their progress.63 With the improvement in standards within Rwanda, as well as the building of national capacities, the Prosecutor was ready to try again. A new round

that an organic law in Rwanda is “hierarchically superior to ordinary legislation although subordinate to the constitution.” See Schabas, supra note 9, at 38. 59 President of the International Criminal Tribunal for Rwanda, Letter dated Nov. 12, 2008 from the President of the International Criminal Tribunal for Rwanda addressed to the President of the Security Council, ¶ 59, U.N. Doc. S/2009/587 (Nov. 12, 2008). To address the view that the Victims and Witnesses Support Unit (VWSU) created under the Office of the Prosecutor General of Rwanda was inadequate, especially for defense witnesses, a separate Witness Protection Unit (WPU) was established, to be administered by the Registries of the Rwandan courts. 60 November 2007 Report, supra note 50, at ¶ 34; see also President of the International Criminal Tribunal for Rwanda, Letter dated May 12, 2008 from the President of the Criminal Tribunal for Rwanda addressed to the President of the Security Council, ¶ 48, U.N. Doc. S/2008/322 (May 12, 2008). 61 Prosecutor v. Laurent Bucyibaruta, Case No. ICTR-2005-85-I, Decision on Prosecutor’s Request for Referral of Laurent Bucyibaruta’s Indictment to France, (Nov. 20, 2007); Prosecutor v. Wenceslas Munyeshyaka, Case No. ICTR-2005-87-I, Decision on the Decision on Prosecutor’s Request for Referral of Wenceslas Munyeshyaka’s Indictment to France, (Nov. 20, 2007). 62 See also Bucyibaruta, supra note 61, at ¶¶ 29–30; Munyeshyaka, supra note, at ¶¶ 29–30. 63 President of the International Criminal Tribunal for Rwanda, Letter dated May 12, 2011 addressed to the President of the Security Council, ¶ 48, U.N. Doc. S/2011/317 (May 12, 2011). monitoring and referral of cases between jurisdictions 489 of applications for the referral of indictments from the ICTR to Rwanda was made in November 2010, at a time when the Prosecutor was cognizant that success would “open the way” for other referrals, “thus assisting the Tribunal in taking another important step towards closure.”64 Two of the new referral requests concerned indictees still at large,65 but a third concerned a pastor named Jean Uwinkindi who had been arrested in Uganda in June 2010.66 On 28 June 2011, the request to refer the Uwinkindi case to the Rwandan courts was approved by a Trial Chamber, with the judges having concluded that Rwanda had made “material changes in its laws” and indicated a capacity and willingness to adhere to internationally recognized fair trial standards.67 Four months later, the European Court of Human Rights ruled in a separate case concerning genocide suspect Sylvère Ahorugeze that “if extradited to stand trial in Rwanda, [the accused] would not risk a flagrant denial of justice” nor unfairness with respect to detention conditions.68 Then, on 16 December 2011, the Appeals Chamber confirmed the decision to refer the Uwinkindi case to Rwanda,69 and with his physical transfer to Rwanda on 19 April 2012, Jean Uwinkindi became the first accused in the custody of the ICTR to be transferred to a Rwandan court for trial.70 His case has since paved the way for seven more ICTR indictments to be referred to Rwanda, while also encouraging transfers from other states, including Canada in January 2012 and

64 Id. at ¶ 48. 65 The two requests concerned Fulgence Kayishema, the former inspector of judicial police at Kivumu commune in Kibuye prefecture, and Charles Sikubwabo, the former bourgmestre of Gishyita commune in Kibuye prefecture. 66 The surname Uwikindi is also used, including in the “Status of Cases” listing on the ICTR’s website. Uwinkindi is one of seven religious leaders indicted by the ICTR for their alleged roles in the genocide. 67 Prosecutor v. Jean Uwinkindi, Case No. ICTR-2001-75-R11bis, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, ¶ 323, (June 28, 2011). 68 Ahorugeze v. Sweden, supra note 55, at ¶¶ 83–95, 113–129. The judgment makes extensive reference to the Uwinkindi referral. Ahorugeze resides in Denmark, but was arrested in Sweden when he tried to renew his family’s passports at the Rwandan Embassy in Stockholm. He was released from detention by the Swedish Supreme Court, pending the judgment of the European Court, and is believed to have returned to Denmark. 69 Jean Uwinkindi v. Prosecutor, Case No. ICTR-01-75-AR11bis, Decision on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda and Related Motions, (Dec. 16, 2011). 70 President of the International Criminal Tribunal for Rwanda, Letter dated May 22, 2012 from the President of the Criminal Tribunal for Rwanda addressed to the President of the Security Council, ¶¶ 14, 60, U.N. Doc. S/2012/349 (May 22, 2012). 490 harrington

May 2014,71 and Norway in March 2013.72 In July 2013, a second ICTR referral of an indictee in custody was achieved, “marking the completion of transfer work by the Tribunal.”73 In its press statement on Uwinkindi’s transfer, the Rwandan National Public Prosecution Authority “thank[ed] the ICTR generally for the significant vote of confidence it has given to the Rwandan justice system” and singled out the Office of the Prosecutor “for years of cooperation and collaboration.”74 A notable aspect of this collaboration has been the acceptance of a robust monitoring and revocation mechanism to provide additional oversight for cases transferred from the ICTR to the national courts. Rwanda’s acceptance of a role for

71 In January 2012, Léon Mugesera was deported to Rwanda from Canada where he had been living since 1993, “Leon Mugesera Arrived in Kigali on a Special Flight”, Hirondelle News Agency (Jan. 24, 2012), http://www.hirondellenews.com/ictr-rwanda/410-rwanda-other- countries/29932-240112-rwanda-canada-leon-mugesera-arrived-in-kigali-on-a-special- flight-. His deportation had been delayed by a series of challenges in the Canadian courts. See Mugesera v. Minister of Citizenship and Immigration, [2012] F.C. 32 (Can. Fed. Ct.); Mugesera v. Kenney, Dossier 500-17-069828-120, [2012] QCCS 116 (Que. S. Ct.); see also Minister of Citizenship and Immigration v. Mugesera, [2005] 2 S.C.R. 91 (Can. S.C.C.). In May 2014, an order for the deportation from Rwanda to Canada of former government official Jean Berchmans Habinshuti was confirmed by the Federal Court of Canada. 72 “First European Country Extradites Genocide Suspect to Rwanda”, Hirondelle News Agency (Mar. 11, 2013), http://www.hirondellenews.com/ictr-rwanda/410-rwanda-other- countries/34131-110313-norwayrwanda-first-european-country-extradites-genocide- suspect-to-rwanda. The approval of the extradition by the Norwegian court of first instance is also discussed in Ahorugeze v. Sweden, supra note 55, at ¶¶ 72–75. Danish and French extradition efforts have also received judicial approval, but not as yet resulted in a physical transfer. “See Danish Court Upholds Extradition of Rwandan Genocide Suspect”, Hirondelle News Agency (Nov. 20, 2012), http://www.hirondellenews.com/ ictr-rwanda/410-rwanda-other-countries/33903-201112-rwandadenmark-danish-court- upholds-extradition-of-rwandan-genocide-suspect; “French Court Grants Rwandan Extradition Request”, Hirondelle News Agency (Jan. 30, 2013), http://www.hirondellenews .com/ictr-rwanda/410-rwanda-other-countries/34053-300113-france-rwanda--french- court-grants-rwandan-extradition-request. 73 President for the International Criminal Tribunal for Rwanda, Letter dated Nov. 13, 2013 from the President of the International Criminal Tribunal for Rwanda addressed to the President of the Security Council, ¶ 4, U.N. Doc. S/2013/663 (Nov. 13, 2013);. see also Bernard Munyagishari v. Prosecutor, Case No. ICTR-05-89-AR11bis, Decision on Bernard Munyagishari’s Third and Fourth Motions for Admission of Additional Evidence and on the Appeals Against the Decision on Referral Under Rule 11 bis, (May 3, 2013). 74 “ICTR Transfers Uwinkindi”, Republic of Rwanda Ministry of Internal Security (Apr. 19, 2012), http://www.mininter.gov.rw/index.php?id=17&tx_ttnews%5Btt_news%5D=61&cHash= ee7e421e98413da90ffd62064d8e7a05. monitoring and referral of cases between jurisdictions 491 monitoring dates back to at least 2007, with Article 19 of its so-called Transfer Law expressly permitting monitors appointed by the ICTR to observe court proceedings, including closed sessions, and granting them unlimited access to documents and places of detention.75 Rwanda has also been supportive of the Prosecutor’s efforts, since at least 2007,76 to involve the African Commission on Human and Peoples’ Rights in the monitoring of trial proceedings,77 with the Commission being recognized as an independent body. Rwanda’s Minister of Justice has also confirmed that foreign state authorities may also monitor and evaluate the conditions of a transferee’s detention and trial.78 In the Uwinkindi decision, having an “adequate system of monitoring in place” was considered in the interests of justice, provided the system was “cognizant of and responsive to genuine concerns raised by the Defence, as well as the Prosecution.”79 The judges were also “mindful of the revocation mechanism” as “a remedy of last resort.”80 An order was made for monitoring by and for the judges, that was upheld on appeal,81 with the Registrar to make arrangements with the African Commission. When matters such as the paying of costs led to difficulties, it was later agreed that another organization could be appointed to undertake the monitoring, with the identified alternatives including a group that had indicated a willingness to engage with the Tribunal on a pro-bono basis.82 In June 2012, ICTR President, Judge Vagn Joensen, also issued detailed guidelines on monitoring trials, drawing attention to what he termed the “basic principles of monitoring” (namely non-intervention in the judicial process, objectivity, and harmonization with national authorities), while also

75 See the Amicus Curiae Brief of the Republic of Rwanda filed in the Kanyarukiga application. See Prosecutor v. Kanyarukiga, supra note 51, at ¶ 41. 76 As acknowledged by the Appeal Chamber in Prosecutor v. Yussuf Munyakazi. See Prosecutor v. Yussuf Munyakazi, supra note 56, at ¶ 30. 77 See the Amicus Curiae Brief of the Republic of Rwanda filed in the Kanyarukiga application. See Prosecutor v. Kanyarukiga, supra note 51, at ¶ 42. 78 As stated in a letter of 12 August 2009, from the Rwandan Minister of Justice to the Swedish Ministry of Justice, reproduced in part in Ahorugeze v. Sweden. See Ahorugeze v. Sweden, supra note 55, at ¶ 24. 79 Prosecutor v. Jean Uwinkindi, supra note 67, at ¶ 208. 80 Id. at ¶ 217. 81 Jean Uwinkindi v. Prosecutor, supra note 69, at ¶ 83. 82 Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75R11bis, Order to Stay the Transfer of Jean Uwinkindi Pending the Establishment of a Suitable Monitoring Mechanism, ¶ 7 (Feb. 24, 2012); see also Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75-R11bis, Decision on the Monitoring Arrangements for the Trial of Jean Uwinkindi in the Republic of Rwanda (Apr. 5, 2012). 492 harrington providing a “non-inclusive” list of the “internationally recognized rights of the accused” to be monitored during the various stages of a proceeding.83

4 Referrals and the Residual Mechanism

Support for the referral of cases and their monitoring has continued with the establishment of a residual mechanism to carry out the essential functions of the ICTR and the ICTY after their closure.84 The United Nations “Mechanism for International Criminal Tribunals” (MICT), as it is known, continues “the jurisdiction, rights and obligations and the essential functions”85 of the two ad hoc Tribunals subject, inter alia, to the terms of the Council resolution and the terms of the Mechanism’s Statute. With respect to referrals, the key provision within the Statute is Article 6, which stipulates that the Mechanism “shall have the power, and shall undertake every effort, to refer cases” of indicted persons who are not among the most senior leaders “to the authorities of a State . . .”, with the Statute also preventing the Mechanism from trying such persons until “all reasonable efforts to refer the case” have been exhausted.86 As with Rule 11 bis referrals by the ICTR, referrals by the Mechanism may involve any state that has jurisdiction and is willing and adequately prepared to accept such a case, and are not restricted to the state in whose territory the crime was committed or in which the accused was arrested.87 However, referrals can only take place when a Mechanism Trial Chamber is satisfied that the accused will receive a fair trial and that the death penalty will not be imposed or carried out.88

83 Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75-R11bis, Order on the ICTR Monitoring Arrangements, (June 29, 2012); see also “Training Manual on Human Rights Monitoring”, U.N. Office of the High Commissioner for Human Rights, 87–95 (2001), available at http:// www.ohchr.org/Documents/Publications/training7Introen.pdf. (setting forth a list of “principles” including the principles of “do no harm; respect the mandate; know the standards; exercise good judgment; seek consultation; respect the authorities; credibility; confidentiality; security; understand the country; need for consistency, persistence and patience; accuracy and precision; impartiality; objectivity; sensitivity; integrity; professionalism; and visibility.”). 84 S.C. Res. 1966, U.N. Doc. S/RES/1966 (Dec. 22, 2010). 85 Id. at 2. 86 Id. at 4. 87 Id. at 7. 88 Id. at 8. monitoring and referral of cases between jurisdictions 493

Monitoring is also expressly provided for by the Mechanism’s Statute, but in more robust terms than found in the text of Rule 11 bis, with the Statute stipulating that the Mechanism shall monitor cases referred to national courts “with the assistance of international and regional organisations and bodies.”89 It is then further explained within Rule 14 that observers may be sent to monitor the proceedings of a referred case at the behest of either the Prosecutor or the Trial Chamber,90 thus continuing the spirit of the 2011 amendments to the ICTR’s Rule 11 bis and providing a response to any critics against giving this role solely to the Prosecutor. Like Rule 11 bis, the Mechanism’s Statute and rules also make clear that an order of referral may be revoked at any time before an accused is found guilty or acquitted by the national authorities, but with the addition of criteria for guidance, namely “where it is clear that the conditions for the referral of the case are no longer met and it is in the interests of justice” to revoke the order and request a deferral.91 The Arusha branch of the Mechanism commenced work on 1 July 2012 and from that date, the Mechanism assumed judicial oversight over the monitoring of cases referred by the ICTR to national jurisdictions, although it was agreed that the ICTR “would continue to administer the monitoring efforts in the Uwinkindi trial in close consultation with the President of the Residual Mechanism.”92 Triggered by a request from the ICTR’s Registrar (and not the accused), a decision was issued in November 2013 clarifying the scope and content of monitoring reports.93 It was made clear that monitors were required to report only the facts of any impediments to a fair trial in the receiving state, with Mechanism President Judge Theodor Meron emphasizing that it was “for an assigned trial chamber, not the monitors,” to reach any conclusions as to

89 Id. 90 Rules of Procedure and Evidence, Mechanism for International Criminal Tribunals 8 (June 8, 2012), http://www.unmict.org/sites/default/files/documents/120608_rules_en.pdf. 91 Id. at 8; S.C. Res. 1966, U.N. Doc. S/RES/1966, (Dec. 22, 2010). 92 President of the International Criminal Tribunal for Rwanda, Letter dated Nov. 14, 2012 from the President of the International Tribunal for Rwanda addressed to the President of the Security Council, ¶ 12, U.N. Doc. S/2012/836 (Nov. 14, 2012). Since January 1, 2014, the monitoring of the Munyagishari case in Rwanda has also been fully transferred to the Residual Mechanism. See President of the International Criminal Tribunal for Rwanda, Letter dated May 15, 2014 addressed to the President of the Security Council, ¶ 56, U.N. Doc. S/2014/343 (May 15, 2014). 93 Prosecutor v. Jean Unwinkindi, Prosecutor v. Bernard Munyagishari, Case Nos. MICT-12-25/ MICT-12-20, Decision on Registrar’s Submission Regarding the Monitoring Mechanisms in the Uwinkindi and Munyagishari Cases (Nov. 15, 2013). 494 harrington whether the conditions for the referral were no longer met.94 Meron also made clear that while there was no duty on a monitor to make an application for a referral’s revocation, monitors could be directed by the Mechanism to provide additional information in the event of such an application.95 The decision also confirms that monitoring reports will be made public ordinarily through a website, but an accused or his counsel are also entitled to be served with copies of the reports.96

5 Monitoring’s Potential Impact on the French Prosecutions

The monitoring reports for the four accused in custody who have been transferred from the ICTR to national jurisdictions are available from the website of the Mechanism. While much attention has focused on whether a genocide suspect caught abroad will receive a fair trial before the Rwandan courts, significant delays have hampered progress in the two ICTR cases referred to France.97 Some of this delay has been attributed to the severance of diplomatic relations between France and Rwanda from 2006–2009, which “made it impossible to carry out investigations during that period.”98 However, a review

94 Id. at ¶¶ 28–29. 95 Id. at ¶¶ 37–39. 96 Id. at ¶ 51. 97 France has long been criticized for providing refuge to a number of persons associated with the 1994 genocide, with some critics suggesting a lack of political will as a result of France’s support for the former Rwandan regime. See generally, Daniela Kroslak, The French Betrayal of Rwanda 1–322 (2008). There has, however, also been some reluctance on the part of the French courts to assert universal jurisdiction, as noted by University of Paris Professor Brigitte Stern with reference to the earlier French proceedings against Father Munyeshyaka. See Brigitte Stern, “Universal Jurisdiction Over Crimes Against Humanity Under French Law”, 93 Am. J. of Int’l L. 525, 529 (1999). The first conviction of a Rwandan genocide suspect before a French court occurred in 2014, almost twenty years after the genocide, in a case concerning former Rwandan intelligence chief Pascal Simbikangwa. See Maïa de la Baume, “France Convicts Rwandan Ex-Officer of Genocide”, N.Y. Times (Mar. 14, 2014), http://www.nytimes.com/2014/03/15/world/africa/france- convicts-rwandan-ex-officer-of-genocide.html?_r=0. 98 Laurent Bucyibaruta, Case No. MICT-13-44, Initial Monitoring Report on the Bucyibaruta Case, ¶ 11, (July 12, 2013) [hereinafter Initial Monitoring Report on the Bucyibaruta Case]; Wenceslas Munyeshyaka, Case No. MICT-13-45, Initial Monitoring Report on the Munyeshyaka Case, ¶ 11, (July 12, 2013) [hereinafter Initial Monitoring Report on the Munyeshyaka Case. The severance of relations followed the issuance, by a French judge, of an international arrest warrant against nine Rwandan officials and the suggestion that monitoring and referral of cases between jurisdictions 495 of the relevant monitoring reports also indicates that France did not establish a special judicial unit for the investigation of genocide cases until 2012, with those interviewed by the monitor suggesting a need for specialist expertise.99 Judicial workload was also mentioned as a contributing factor, with reference to a docket of 25 cases concerning crimes committed in Rwanda.100 Notably, with respect to the two ICTR referrals, there were in fact pre-existing French cases initiated at the behest of parties civiles to which the ICTR cases were joined, but even with the transfer of dossiers from the ICTR, there is a need to re-collect evidence and re-examine witnesses to meet the terms of French law. The monitor’s report also indicates that some are concerned that the lengthy investigation of these cases reflects a lack of political will, while others are wor- ried about the impact of the passage of time on the defendant’s right to a trial within a reasonable time.101 In a January 2014 report concerning the Laurent Bucyibaruta case, the monitor writes that the prosecution has confirmed that the judicial investigation phase will come to a close in 2015,102 with the prosecution perhaps mindful of the public record that has now been created by the monitoring process. No such indication is given with respect to the Wenceslas Munyeshyaka case, although it is disclosed that investigators were in Rwanda in relation to this case in October, November and December 2013.103 It has, however, been suggested by Munyeshyaka’s legal representatives that the “partisan campaign- ing of the associations acting as civil parties” has impacted progress.104 The

President Paul Kagame should be tried by the ICTR. See also, Vanessa Thalmann, “French Justice’s Endeavours to Substitute for the ICTR”, 6 J. Int’l & Crim. Just. 995, 995–1002 (2008); Kroslak, supra note 98, at 202 (discussing Judge Bruguiere’s efforts leading to severance of France-Rwanda relations). 99 Initial Monitoring Report on the Bucyibaruta Case, supra note 98, at ¶¶ 12–13; Initial Monitoring Report on the Munyeshyaka Case, supra note 98, ¶¶ at 12–13. 100 Initial Monitoring Report on the Bucyibaruta Case, supra note 98, at ¶ 12; Initial Monitoring Report on the Munyeshyaka Case, supra note 98, ¶ at 12. 101 Laurent Bucyibaruta, Case No. MICT-13-44, Second Monitoring Report, ¶¶ 16, 24 (Nov. 1, 2013). France’s failure to deal with the civil parties’ cases in a reasonable time has also been a subject of criticism. See Mutimura v. France, App. No. 46621/99, Eur. Ct. H.R. (June 8, 2004). 102 Laurent Bucyibaruta, Case No. MICT-13-44, Third Monitoring Report, ¶ 10, (Jan. 24, 2014). 103 Wenceslas Munyeshyaka, Case No. MICT-13-45, Third Monitoring Report, ¶ 9 (Jan. 24, 2014). 104 Wenceslas Munyeshyaka, Case No. MICT-13-45, Second Monitoring Report, ¶ 9 (Nov. 5, 2013). 496 harrington funding of a defence was also mentioned to the monitor as a concern “if the case was ever referred . . . for trial.”105

6 Conclusion

The efforts undertaken to secure the referral of ten indictments from the ICTR to two national jurisdictions have not been without their challenges, with the Prosecutor to be commended for both his diplomatic efforts as well as his legal skill. While the jurisprudence on referrals suggests that the judges struggled at times with the appropriate standard to apply, it was nonetheless made clear that a successful referral required assurance that the accused will receive both a fair trial and (if convicted) a fair punishment in the receiving state. As a result, referrals have served as a means to instigate change, both in Rwanda and on jurisdictional matters, in several other states, where they lacked the ability to try crimes of genocide. The collaborative approach undertaken by the Office of the Prosecutor with a view to building the national capacities of Rwanda is also to be commended, and serves to remind us of the ICTR’s role as “an instrument of transitional justice.”106 For those with an interest more generally in cross-border cooperation to secure the transfer of persons wanted for trial, the Prosecutor’s efforts with respect to the development of a mechanism for post-transfer monitoring is an innovation worthy of further consideration. At its base, extradition, like referral, involves the surrender of an accused from one jurisdiction to another,107 with the terms of the post-surrender monitoring to be written into the extradition agreement, or made a condition of the surrender, thus providing a remedy under the law of treaties in the event of a breach.108 While the public availability of regular monitoring reports focused

105 Id. at ¶ 16. 106 Tolbert & Kontic, supra note 2, at 136. 107 See also, Joanna Harrington, “Extradition of Transnational Criminals” in Routledge Handbook of Transnational Criminal Law, Neil Boister & Robert Currie (eds.), pp. 153-166 (London: Routledge, 2015). 108 Parliamentarians in Australia have made recommendations that the Australian Government should monitor individuals extradited to those countries with which Australia has extradition treaties, and that “new and revised extradition agreements should explicitly provide a requirement that the requesting country provide annual information concerning the status of extradited persons.” See “Report 131”, Parliament of the Commonwealth of Australia, Joint Standing Committee on Treaties ¶¶ 3.35–3.36 (Nov. 28, 2012), http://www.aph.gov.au/parliamentary_business/committees/house_of_ representatives_committees?url=jsct/11september2012/report.htm. monitoring and referral of cases between jurisdictions 497 on matters of both fair trial and fair punishment in a receiving state have value in themselves, and clearly value for an accused, the creation of a monitoring mechanism, backed by revocation as a remedy of last resort, or by the termination of future extradition relations, may also instigate a more attuned commitment from receiving states to ensuring internationally recognized standards for transferees. A final conclusion will, however, have to wait for the trials to take place of the four ICTR indictees in both Rwanda and France.

Part 7 International Law, Human Rights and Governance

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chapter 23 Justice for the United Nations: A Quiet Revolution?

Geoffrey Robertson

No international institution can exercise effective global governance unless it can govern itself. That means that it must practice what it preaches: standards that it promulgates to the world as just and fair must be the standards that it applies to its own staff. This is not merely a matter of avoiding hypocrisy: unless its employees are accorded decent treatment and due process, they are unlikely to work happily – and hence satisfactorily – for the people who need their help, to obtain (among other things) decent treatment and due process. Among international organizations, the United Nations (UN) is both paramount and unique, providing succor to sufferers from war, pestilence and human rights abuses, whilst run on behalf of member states who are largely responsible for those abuses in the first place. Much is made of the need for, and the impossibility of, reforming the Security Council, so as to reflect the reality of the twenty-first century and not of 1946,1 but little was heard of the need to drag its own internal administration beyond its origins into a time when expectations of what fairness and justice require have greatly advanced – especially as a result of the UN’s own conventions. Its staff has increased in that period from 2,800 to 80,000, and it relies on that staff to deliver such comfort as it can as effectively as possible to the poor and the ravaged. Whether that can be achieved is dependant in part on whether the UN’s administrative system holds management to account for incompetence, misbehavior and corruption, and ensures that staff operate in a supportive environment that guards against discrimination, harassment or reprisals for whistleblowing. This chapter recounts a small miracle of reform in the history of the UN, namely the sweeping away of an obsolete and dysfunctional administrative arrangement, and its replacement by a modern internal justice system. How was this revolutionary change achieved, and what precedent does the new system set for other global institutions? The UN is above the law of all the nations where it operates. Its immunity means that it cannot be taken to court by its employees or anyone else, no matter how negligently or maliciously it has treated them. This is impunity,

1 See Kofi Annan, Interventions: A Life in War and Peace 141 (Allen Lane 2012).

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_024 502 Robertson and it arises from one of its founding treaties – the Convention on Privileges and Immunities of the United Nations.2 It even trumps human rights treaties like the European Convention of Human Rights, which otherwise guarantee to individuals, access to a court for a fair and public hearing to determine their rights. UN workers have no rights against their employer in national courts, as Cynthia Brzak, an American at the High Commission for Refugees, discovered after she claimed to have been molested by the High Commissioner, the ex- foreign Minister of the Netherlands, Ruud Lubbers, who had been appointed allegedly because he was a friend of Kofi Annan (high-level positions at the UN are not filled on merit).3 With the support of her superior she took the matter to the Office of Internal Oversight Services (OIOS), which confirmed her complaint, however both women later suffered reprisals from management. When they took their case for sexual harassment to the local US court, it ruled that it had no jurisdiction: the UN was absolutely immune from legal actions in the domestic courts of its Member States, everywhere in the world. This unacceptable situation could only be excused if the UN offered to its staff an independent and fair system within the organization for resolving their disputes with management. However, up to 2009, it offered nothing that answered to the description of a “justice system.” Its staff ’s idealistic enthusiasm for their mission was daily soured by a working environment which lacked any effective protection against unjust promotion or disciplinary decisions, or against sexual harassment or bullying (“mobbing”), or against retaliation if, like Cynthia Brzak, they “blew the whistle” on corrupt or unlawful management practices. Many UN staff members are on short-term contracts: falling out with a superior meant that they could obtain no redress, through bureaucratic processes, until long after they had been sacked. Although the UN was busy promulgating the “due process” and “fair hearing” promises of its human rights conventions, and taking up the case against discriminatory practices by corporations, it denied to its own staff the very fundamental rights that its “Global Compact”4 required multi-national companies to extend to their workers. In every large-scale working environment there is a danger of discrimination, harassment, psychological bullying and unfair treatment. These dangers are exacerbated in international organizations and especially at the UN, which is riddled with nepotism and regional bloc power-play. Appointments to senior positions are not made on merit, but on connections: rich states can

2 Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946. 3 Brzak v. United Nations, 597 F.3d 107 (2d Cir. 2010). 4 United Nations Global Compact, www.unglobalcompact.org, https://www.unglobalcompact .org/ (last visited Oct. 11, 2014). Justice for the United Nations 503 buy appointments for their candidates by offering aid in return for votes. The Brahimi Report for the Millennium Summit politely identified the enemy within the organization: “Put simply, the UN is far from being a meritocracy . . . The hiring, promotion and delegation of responsibility rely heavily on senior- ity and personal and political connections.”5 That means, in short, that some senior positions are filled by people not up to the job, chosen by diplomats (who choose other diplomats) or by heads of state who choose their brothers and cousins or by governments which send people with political connections. Because the UN brings together executives and staff from different countries, they come with different cultural standards, different ways of commu- nicating and different approaches to human resource management. That of course is one of the great challenges – and satisfactions – of working for the UN, but it does mean that problems will inevitably arise through personality and cultural clashes, national rivalries and misunderstandings. The UN must embrace fair procedures for resolving the employment issues these characteristics will generate, as well as the familiar workplace disputes that occur in all large organizations. The UN’s special position as custodian of conventions requiring fair play and due process, should have made it the exemplar of these standards. Instead, by the turn into the twenty-first century, it had become an example of a bureaucracy that human rights had left behind. The UN’s administrative justice system had been inherited from the League of Nations and had continued after 1946 virtually unchanged, without even provision for mediation or arbitration alternatives to resolve disputes. All employment issues were subjected first to review by a management unit which delayed decisions for a year and generally decided in favor of management: if employees still wanted to pursue the claim, the unit put the case against them to a “peer review” panel (a representative of staff and of management, allowed time off work, and an independent chair) which took an average of two years to consider a case. What was so absurd about peer review at the UN by these Joint Appeal Boards (JAB) and Joint Disciplinary Committee (JDC) was that the panel’s decision was merely a recommendation, which the Secretary- General tended to ignore if it was favorable to the employee. The case might then be taken to the United Nations Appeals Tribunal, which only sat twice a year in two-week sessions and hardly ever held “hearings” which were, in any case, never in public. Its members did not have to be lawyers, and were usually diplomats appointed as a post-retirement favor by their diplomatic cronies still at the UN. The result was a system that could take about five years to decide a

5 Geoffrey Robertson, Crimes Against Humanity – The Struggle For Global Justice 798–99 (London: Penguin 4th ed. 2012). 504 Robertson serious grievance by a staff member, under which the Secretary-General could ignore JAB/JDC “decisions”: and even reject UNAT orders, e.g. for re-instatement, simply by paying compensation instead. So the management always won, even when it lost. The bizarre non-binding quality of JAB and UNAT adjudications not only meant that the internal justice system was seriously biased against staff. It meant that it was not a “justice” system at all. This was the system I encountered in 2006, when asked by the New York Staff Union to chair an independent inquiry into justice at the UN. I squatted on the box files cluttering the small room allocated to the “panel of counsel,” a grandiose term for the retired staff members-most without legal training- who volunteered to help employees battle through the red tape and procedural rules in order to obtain some accountability. Sometimes they did help, but often they hindered: they were amateur volunteers up against trained management lawyers, not to mention the procedural delays, the power of the Secretary-General (exercised by his senior managers) to ignore the rulings of the peer review boards and to buy off any who succeeded at UNAT. The real vice of this haphazard, amateur, inconclusive system was that it could never do what “law” must do: namely, provide a set of rules that had to be obeyed. When the rules were broken by managers, their conduct was rarely remedied because the victim was not reinstated. Decisions did not become precedents, because management always found a way around them. In an organization beset by allegations of favoritism, incompetent management and even corruption, there was no independent body that could expose these vices or protect from reprisals the staff members willing to speak out about them. In consequence, staff at all levels, whether the security guards and translators at the New York headquarters or the scientific experts in Vienna or the human rights researchers in Geneva, felt vulnerable and dispirited. They lacked any sense that they were working in a fair environment: if something did go wrong, they could have no confidence that it would be put right. My inquiry concluded that root and branch reform was essential to combat a culture that had grown up in the UN:

It is a culture both nepotistic and diplomatic, that undervalues ‘merit’ and true qualifications in employment and promotion decisions and looks to regional groupings, state nominees, and ‘diplomatic’ considerations, both generally (by advancing well-connected or inoffensive candidates), and specifically by favoring the employment of diplomats, even to do the work of judges. It may be that this culture is endemic in an organization that must reflect the interests of 191 nation states, fluidly organized in regional and political blocs and seeking to impose their Justice for the United Nations 505

own social and political stamp on UN initiatives. This is acceptable – or at least inevitable – when it affects UN policy decisions. It is unacceptable if it is allowed to influence employment decisions or the mechanisms for resolving workplace disputes. What all state parties to the UN Charter must realize is that they have no right to inject these political concerns into an area which must be governed by universal international and administrative law principles. The overriding concern is to create a system of internal justice in which its members can have confidence that they will be treated fairly. That means crucially, a system that produces independent and expert decisions that are binding upon management. Anything less than this will fail.6

The system that we recommended was to be run by full-time judges, with courts in New York, Geneva and Nairobi, having power to compel the UN Secretariat to disclose documents and obey decisions, subject to appeal to a UNAT comprising experienced judges selected on merit (like the first instance judges) by a body we invented called the Internal Justice Council (IJC). The IJC would have five members – a staff and a management representative, plus two distinguished jurists, one selected by staff and another by management, the four to agree on another jurist to chair the body. They would advertise openly for candidates to fill the judicial offices, and conduct interviews to select them on merit. We wanted to avoid the alternatives, of state nomination (which usually produces candidates chosen because of diplomatic or political connections) or a General Assembly vote, since member countries invariably ignore the merit of a candidate and vote according to the wishes of the “bloc” to which they belong. Our recommendations would produce a genuinely independent tribunal with power to direct (and not just recommend) the Secretary-General to remedy injustices. We believed that a strong justice oversight system would work to combat corruption and mismanagement, by its power to examine decision-making and by affording protection against reprisals to whistleblow- ers. It would conduce to the overarching principle in Article 101(3) of the UN Charter: “The paramount consideration in the employment of staff and in the determination of conditions of service shall be the necessity of securing the highest standards of efficiency, competence and integrity.” As the International Court of Justice had pointed out back in 1954, this meant establishing “a tribunal to do justice as between the organization and the

6 Justice Geoffrey Robertson Q.C. & Professor Roger Clark, Report of the Commission of Experts on Reforming Internal Justice at the United Nations, ¶¶ 12–13 (2006), http://www .geoffreyrobertson.com/pdf/AR-M700U_20060719_143309.pdf. 506 Robertson staff members.”7 Our first principle for reform was that there had to be a tribunal with power to deliver decisions that would bind the organization – decisions, not recommendations, that the Secretary-General could ignore or side step. In accordance with modern thinking, we advocated a two-tier system – a United Nations Dispute Tribunal (UNDT) with full-time judges undertaking the first instance fact-finding exercise, and the United Nations Appeal Tribunal (UNAT) available as a court of appeal if the UNDT applied the wrong interpretation of the UN rules. Our second reform principle was that any justice system needed an informal element – an ombudsman offering mediation and arbitration services – before disputes could reach the formal stage of a tribunal hearing. The UN had recently established an ombudsman (in October 2002) and this office was capable of expansion to serve as the basis for the informal system. The third (and vital) principle was that the tribunals must be independent of both sides, with judges selected by the IJC instead of a “peer review” system in which staff members chosen to serve on the panels were perceived as influenced by management. The fourth principle, that justice delayed is justice denied, when a person’s professional career and livelihood was at stake, meant there must be strict time limits placed on management review (30 days) and any informal processes such as mediation. Insupportable delays – up to five years in the old system – could not be countenanced. A fifth principle was that the new system should be properly funded – “Justice is not a free ride.” It meant not only remu- nerating judges, but providing adequate legal assistance for those who came before the tribunal. Our report made a particularly emphatic point about open justice:

We strongly believe that public hearings are essential to produce confidence in any court. UNAT has always sought to avoid hearings of any sort, with the result that it is not seen as a living and working part of the UN and is not seen as dispensing justice. There should be a public file upon which all submissions are placed unless the court gives permission for them to be kept confidentially. It must be emphasized at both the Employment Tribunal and UNAT level that the presumption must be in favor of publicity for all submissions and judgments. UNAT should hold hearings, unless the parties agree that a hearing is not necessary, and the presumption must be that such hearings will be open to the public and press. The principle that ‘justice must not only be done, but must be seen

7 Effect of Awards of Compensation made by the UNAT, Advisory Opinion, 1954 I.C.J. (July 13). Justice for the United Nations 507

to be done’ is important in this respect: the problem with UNAT at present is that nothing is ever seen to be done at all.8

Finally, we urged the principle of accountability of managers. Very often an abuse of power by managers was exposed in the course of a case, but even when a staff member obtained some financial redress, no follow-up action was ever taken against the managers whose incompetence or malice had forced the payout. They are never required to reimburse the organization. We pointed out that an independent internal justice system with professional judges and public hearings would constitute an important measure of accountability – which an international organization whose immunity shields it from legal accountability has a particular responsibility to establish. Reform on this scale – in effect, sweeping away a 60-year-old entrenched system and replacing it with an entirely new and independent system – can only come about when the stars align. In 1986, the Joint Inspection Unit had raised some alarm about the delays and pointed out that the peer review system “seems a quite primitive procedure of ‘home-made’ justice and is lengthy, costly and time consuming.”9 This was our conclusion 20 years later – so why did nothing happen in the meantime? The Secretary-General had blown hot and cold: the peer review system was infuriating and took valuable managers and staff away from their real jobs, but then it left all the power with the Secretary- General. At last, in 1996, Secretary-General Boutros-Ghali denounced the peer review system as “no longer viable”: not enough staff members were available, and they lacked capability to act as judges. This was obviously correct, and applied to management representatives as well, but the naïve young lawyer- diplomats who represented the countries on the Sixth Committee rejected any need for change.10 The staff unions (there are far too many of them) were often quarrelling, and some had a sentimental attachment to the idea of staff involvement in decision-making, ignoring the fact that decisions favoring the staff were usually rejected. As for member states, the diplomats they dispatched to the Fifth Committee (budget) and Sixth Committee (legal affairs) seemed oblivious to the damage that a dysfunctional administrative system was doing to UN performance. It was not until the Millennium Development Goals were announced in 2000 that

8 See Robertson Q.C. & Clarks, supra note 6, at ¶ 52. 9 Joint Inspection Unit, Report of the Joint Inspection Unit on the Administration of Justice, U.N. Doc. A/41/460 (Sept. 23, 1986). 10 Letter from Chairman 6th Committee to the President of the General Assembly, U.N. Doc. A/C.6/51/7 (Nov. 12, 1996). 508 Robertson some awareness dawned that the UN administration was not fit for the purpose of carrying them out. A number of influential states, which thought that their nationals had been wrongly dismissed by UN management, complained that they had been unable to obtain redress and called for a thoroughgoing inquiry into the system. Kofi Annan, meanwhile, decided that the peer review system, despite its attractions for management, was insupportable and unworkable. And the most powerful staff union, that based in New York, came under the sway of committed trade unionists who recognized the urgency of the need to achieve justice for their members through a system run by professionals and binding on management. Synchronistic developments combined, in 2005, to produce, in the first place, a General Assembly Resolution requiring the Secretary-General to establish “a panel of external and independent experts to consider redesigning the system of the administration of justice.”11 This Redesign Panel’s conclusion was very similar to that of the Staff Union Inquiry: “the United Nations internal justice system is outmoded, dysfunctional and ineffective and lacks independence. The financial, reputational and other costs to the organization of the present system are enormous and a new redesigned system of internal justice will be far more effective than an attempt to improve the current system.”12 The Redesign Panel concluded that the system was so irretrievably broken that only a “completely new system of administration of justice” could restore staff confidence and comply with “many basic standards of due process established in human rights instruments.” The new two-tier system that it recommended was made up of five full-time judges – members of a new UN Disputes Tribunal (UNDT) that could sit in New York, Geneva and Nairobi, and seven UNAT members meeting three times a year, all selected on merit rather than state nomination, with their independence guaranteed by the IJC that had been suggested by the Staff Union Inquiry. The work of the Ombudsman would be extended to include arbitration and mediation services, providing a first- stop informal system. If proceedings in the UNDT were necessary, staff members could obtain expert legal counsel from an Office for Staff Legal Assistance (OSLA) “which would replace the old and discredited panel of counsel.” (This had been a central recommendation of the Staff Union Report.) The needs of the judges, the IJC and the Office of Staff Counsel would be met by a new office for the Administration of Justice, which would, for example, appoint registrars and staff to service the tribunals.

11 G.A. Res. 60/283 (April 13, 2005). 12 Rep. from the Redesign Panel on the UN System of Administrative Justice, U.N. Doc. A/61/205 (July 28, 2006). Justice for the United Nations 509

The Redesign Panel recommendations were incorporated into the General Assembly’s groundbreaking resolution 62/228, passed on 6 February 2008.13 Its proclaimed object was to establish “a new, independent, transparent, professionalized, adequately resourced, and decentralized administration of justice consistent with the principles of the rule of law and due process” which would “ensure that individuals and the organization are held accountable for their actions.” This was significant – it had not been suggested, prior to the staff union report, that an independent, internal legal system would help to ensure accountability. The Resolution required the IJC to be set up by March 2008 – it was the lynchpin of the system which could not commence until it had selected the judges who would take office in 2009. As one commentator noted, the establishment of the IJC was “significant as it reflected a growing trend among intergovernmental organizations in recent years to use a more consultative and less politicized process and to rely on advisory bodies to identify suitable candidates to serve on their administrative tribunal, rather than leaving the nomination and appointment process solely in their governing bodies.”14 The World Bank, in 2001, and the Asian Development Bank in 2003 had taken the initiative in establishing expert consultative bodies which would advise on candidates for their judicial tribunals: the IJC concept took this a large step further. It was not merely an advisory body, but independent and with power, if not to appoint, at least to control the appointment, of meritori- ous candidates. The General Assembly Resolution requires the IJC to “provide its views and recommendations on two or three candidates for each vacancy in the UNDT and UNAT, with due regard to geographical distribution.”15Although cast in the language of advice, this enables the IJC to ensure that a candidate of merit is chosen by the General Assembly by virtue of the simple fact that it must choose between two recommended candidates, both assessed to be the two most qualified for the position after sifting through hundreds of applicants, and testing the most likely candidates. This was momentous progress for an international judiciary hitherto selected by friendship networks among diplomats, by nepotistic relationships with state leaders and by an overtly political process whereby blocs of states at the General Assembly cast votes for judicial positions in the same way as

13 G.A. Res. 62/228. 14 See Phyllis Hwang, “Reform of the Administration of Justice at the UN”, The Law and Practice of International Courts and Tribunals 8, 181–224 (2009). 15 G.A. Res. 228, § 37(b) (December 22, 2007). 510 Robertson they did for political positions.16 Some states regard it as a feather in their cap to have a national as a UN judge, so they show them around in the Indonesia Lounge (the UN’s lobbying arena), offer aid and trade in votes to buy support for them (one state, Nigeria, even had t-shirts printed to boost its candidate). Even when elections are held (as they are for International Criminal Court judges), the states pay little or no attention to the CVs of the candidates, instead casting their votes in political blocs (although ICC States Parties have now created an Advisory Committee on Nomination of Judges to interview and provide reports on candidates nominated by States). A female candidate from Africa will always beat a European male; the francophones will vote for civil lawyers, the British Commonwealth states for common lawyers. Judges from Mauritius are very popular because they bridge this divide – they speak French, but practice English law. The IJC, empowered to ensure that only two highly qualified candidates went up for election to any judicial position, was an important development, hailed by The Economist as a notable advance in judicial selection procedures:17 even if it meant that the second-best candidate succeeded, at least he or she would be the second-best from a large field. Nonetheless, a reminder of the scandalous politicization of the UN voting process came with the first UNAT elections in 2009: the IJC had recommended fourteen candidates for the seven positions, of whom one – Justice Michael Kirby, an Australian High Court judge and former President of the International Commission of Jurists – stood on merit far above the rest. Yet he came only ninth in the voting – Australia was not over popular at the UN at the time and its delegation did not promote the candidate, naively thinking his virtues self-evident. In UN elections, the merits of candidates are usually irrelevant18 – which is why the IJC pre-selection is such an important innovation. The IJC formed in May 2008, after its four members (including the author as the jurist selected by staff ) agreed on their Chair (the South-African Constitutional Court judge, Kate O’Regan) and began the task of scouring the world for good judicial candidates for the new system. The UN mindset required that these jobs should be advertised by and sent on through governments, but the IJC would have none of this – governments would be sure to

16 See Ruth Mackenzie, et al., Selecting International Judges: Principle, Process and Politics (Oxford: Oxford University Press, 2010); Spencer Zifcak, United Nations Reform – Heading North or South? 163 (London: Routledge, 2009). 17 “Wanted: Better judgment, fewer crowd-pleasers and lickspittles”, The Economist, (Nov. 22, 2008), http://www.economist.com/node/12638678. 18 See Vaclav Havel, “UN is electing the Worst Offenders”, The Australian, (May 14, 2009), http://muslimsagainstsharia.blogspot.com/2009/05/un-is-electing-worst-offenders.html. Justice for the United Nations 511 nominate their own lickspittle judges, or not pass on the application forms of disfavored candidates. It did agree to send advertisements for the new positions to all Chief Justices, although I later met one highly qualified judge who said that his Chief Justice had refused to circulate it for fear of losing a member of his bench! The bulk of the applications (250 in 2008, and over 500 when a second round of appointments came in 2011) were elicited through advertisements in The Economist, Le Monde, The Asian Wall Street Journal and other papers in Africa and Latin America. The candidates were required to have ten years of judicial experience for the UNDT and fifteen for UNAT, and to send examples of their judgments and references from distinguished lawyers. They were whittled down to forty finalists and brought to The Hague, where they were obliged to sit a two-hour exam paper and then undergo a fifty-minute interview with the IJC members. Their references were checked and the International Bar Association and their local law societies were con- tacted to find out whether they had ever been the subject of scandal or professional concern. There is no process in national courts (except the investigation of judicial appointees to the US Supreme Court) that is quite so exhaustive and, it may be said, so scrupulously fair, certainly in subjecting candidates to a competitive examination. The results of the written test were sometimes particularly illuminating: it was difficult to resist the conclusion that certain judges had relied for too many years on their clerks or associates to write their judgments. The full-time judges of the UNDT have been a great success. Not, initially, with the managers who were horrified when required by compulsory judicial order to produce relevant documents and undergo cross-examination about the fairness of their decisions in open court, where their staff could watch their embarrassment. This was a profound culture shock, and bitter complaints were made to the IJC about several judges who did not mince their words – and everyone at the UN minces their words – when condemning the Secretary- General and his officials for failures to comply with tribunal orders to disclose documents. The management had failed to prepare adequately for the new system, and initially their lawyers were simply outclassed by several of the dedicated litigators hired by OSLA to represent the staff. In time, this imbal- ance was rectified and the management’s performance improved, and the IJC foiled a proposal by the Secretary-General to prevent interlocutory orders e.g. for disclosure of documents from taking effect until after appeal. The UNDT, after its judges took office in July 2009, helped to refurbish the UN’s image after years of corruption, incompetence and, in the case of its “blue helmets,” child sex allegations. In September 2010, there appeared a headline no one could ever have expected to see in the Wall Street Journal: “Hooray for the UN.” The 512 Robertson editorial praised the UNDT for ruling that reprisals against a whistleblower who had exposed corruption in the UN Development Programme’s mission in North Korea had been malicious and unlawful, and deserved substantial compensation. “The ruling suggests that the UNDT is serious about its mandate to be ‘independent, professionalized, expedient, transparent and decentralized’ ” the editorial enthused. This was not a one-off: in 2012, the UNDT made headlines when it ruled that the UN Ethics Office had failed to protect a whistleblower from bosses bent on revenge, and exposed this so-called “ethics” office as little more than a device for covering up for the bureaucracy.19 In this case, where an employee suffered reprisals for attempting to expose officials at the UN mission in Kosovo who took bribes, the judge condemned the UN, “the principal agency promoting the observance of human rights norms and practices and respect for the rule of law” for having “condoned such humiliating and degrading treatment of a member of its own staff.”20 These cases showed the benefits of the new system, with independent judges shining light on the muddy waters of UN procurement and bureaucracy in ways that no employed “ethics” investigator had ever done before. At a more work-a-day level, hundreds of cases were being dealt with fairly and transpar- ently: both sides were able to obtain necessary evidence, summon and cross- examine relevant witnesses and receive a carefully reasoned judgment on their dispute with which the Secretary-General was bound to comply. Although some claimants were represented by outside lawyers, the availability of OSLA counsel meant an “equality of arms” in proceedings. Having judges in Nairobi, with an office in Addis Ababa, as well as courtrooms in New York and Geneva, meant that most employees “in the field” in Africa could access a court. The early years did produce one juris-cultural clash, at least in the minds of staff: the civil law judges from France and Germany, based in Geneva, appeared more deferential to management than common law judges based in Nairobi and New York. A number of staff pamphlets commented on this assumed fact and claimed that staff had better prospects of success if their claim could be in the register in New York and Nairobi. It is certainly true that judicial review – “the judge over your shoulder” – is more developed in English law than in France, where members of the Court of Cassation are much closer to the government than an English judge would find to be healthy. But America was different, too – it has no “employment law” properly so-called and industrial relations are essentially about bargaining. The hope is that, working together

19 In 297 cases over six years, the Ethics Office had only once sided with the whistle blower. 20 Julian Borger, “UN Tribunal finds its ethics office failed to protect whistleblower from reprisals”, The Guardian, (Jun. 28, 2012). Justice for the United Nations 513 in an international organization, judges from different systems would develop a common approach to what fairness in the workplace requires. This is certainly the case at trial level, where UNDT judges have been consci- entiously developing a UN jurisprudence. At UNAT level, so far, the results have not been so satisfactory. Any appeal court requires some academic rigor and intellectual excellence, but the statutes (there was, regrettably, no consultation with the IJC in drafting them) call for 15 years full-time judicial experience. This excludes professors of law and part-time judges, however intellectually able, and practitioners with the best employment law practices. Most applicants for UNAT are judges who have served for many years in middle-ranking courts and are now looking for a post-retirement boost to their pensions. It has proved difficult to recruit outstanding jurists to UNAT, and so appeal judgments are often intellectually inferior to the judgments at first instance. The first IJC, in its last report (2012) said: “We feel there is a real need to infuse some academic excellence into UNAT . . . the IJC feels that its hands are unnecessarily tied (by the statutory qualifications) in recruiting the best candidates for shaping the UNAT as a pillar of juristic excellence.”21 Another obstacle is the archaic “honorarium” system which survived, again without consultation with the IJC, from the payment process used for the old UNAT. An “honorarium” (whatever that means) of $2,400 is paid to the judge who actually drafts the appeal judgment, with $600 paid to two more judges for vetting and approving it. The IJC has pointed out that this conduces to bad practice in the appeal court, where the drafting judge’s work can be “nodded through” by his two colleagues, who are not paid enough to do their own research and writing. The fact that there are hardly ever any dissenting judgments from UNAT demonstrates the impact of this unsatisfactory payment scheme – and dissenting judgments help to develop the law. Another IJC criticism of UNAT is that the appeal court holds very few public – or any – hearings. The UNAT judges – like lazy or complacent judges everywhere – tend to think that oral hearings are a waste of time. But live advocacy helps to sharpen the issues, and informs the public of those on which management and staff are divided. However, there is no doubt that the UNAT judges are dedicated and have done their best to cope with a heavy workload whilst receiving insufficient payment. The IJC was itself a novel body, with much more power and substance than the purely advisory committees at the World Bank and Asian Bank. We envis- aged it as a permanent guarantor of judicial independence: it would choose the judges that were fit for nomination, draw up a code of conduct and enforce it by hearing complaints and reporting to the General Assembly any judge who

21 Rep. of the Internal Justice Council, U.N. Doc. A/66/664 (Jan. 19, 2012). 514 Robertson behaved badly enough to justify removal. It would, however, be vigorous in protecting judicial independence and other parts of the system, like OSLA, which were essential to its functioning, and would deliver an annual report to the General Assembly both recording how the system had worked and recommending ways to make it work better. Most of these functions were accorded it by GA Resolution 62/228 and the IJC annual reports (2008–2012) provide detailed accounts of the development of the system and the work of the IJC in overseeing it. This includes: selecting the judges and meeting with them on a regular basis; conferring with the Secretary-General’s officials, the Staff Unions, the Ombudsman, OSLA lawyers and other stakeholders; and recommending action to appoint more judges and improve the conditions necessary for their independence. The IJC has criticized UNAT’s failure to hold many public hearings and its 2012 Report admonished the judges for what it called their “dog in the manger” attitude when they refused to participate in a seminar on the new system which the IJC was trying to organize with Osgoode Hall Law School and Brandeis University. The judges were told in no uncertain terms that critical scrutiny of their work by scholarly institutions was now to be encouraged. One consistent strand in the IJC’s work has been to protect OSLA – the Office of Staff Legal Assistance, which had replaced the ineffective “panel of counsel” after the Redesign Panel confirmed the finding of the Staff Union Expert Report that the volunteer panel “fails to provide sufficient and effective counsel for staff members.” We had explained the importance of professional advisors, both in deterring futile actions and once at the tribunal, providing staff with an “equality of arms” when ranged against management lawyers. The importance of providing the weaker side with permanent legal support had been brought home to me at the UN War Crimes Court in Sierra Leone, where the entrenched power of the prosecutor was such that I directed the establishment of a “public defender” office to counteract it. This innovation has now been adopted by the International Criminal Court, and OSLA had considerable success, particularly at the outset, although its cases fell to about half those litigated as private lawyers came in to represent more claimants. But it became a visible and vulnerable candidate for budget cuts as austerity took hold in 2012: many member states thought the staff unions should pay for staff representation. Some proposed that OSLA be abolished, others that it be turned into an “advisory only” service. The advantage of having a body like the IJC, with some members firmly rooted in the reality of adversarial practice and alive to the consequences for the system of poorly thought out suggestions by cost-cutting diplomats, is shown in the following extract from the 2012 report: Justice for the United Nations 515

Making the staff member retain outside counsel for the hearing, who would have to master the case from the beginning, would impose a serious hardship on the staff member. We are aware that there has been some support for a proposal to turn OSLA into a legal advisory service only, which would not have the right or the resources to represent staff in filing actions or at interlocutory stages or in tribunal hearings. We must warn very firmly against any such change. It would mean that OSLA would not have the standing, which is so necessary for the operation of an adversarial system for example, to persuade potential litigants against bringing hopeless cases, to negotiate effective resolutions ‘at the court door’ with management, to help staff avoid the technical legal pitfalls in litigation, to provide ‘equality of arms’ for staff within the overall system or to provide the IJC with full information, from a claimant’s perspective, as to the functioning of the system. These are just some reasons why OSLA needs to retain its full forensic role and we note that the lack of an equivalent organization was one of the main reasons identified by the Redesign Panel and the staff unions’ expert report for the dysfunction in the former system.22

The IJC is unique to the UN at present, but may be worth replicating where a guarantee of judicial or other independence is required at a large international organization. The idea was to keep the membership small, with independent professionals in a majority, to which could be added a necessary representative of management and staff. The four-person panel, once appointed, would immediately hunt for a distinguished chair acceptable to both sides. It was assumed that the five would then hunker down to the apolitical tasks of ensuring the system worked effectively, and that any staff/management split would be resolved by the casting vote of the chairperson. At the time of the first IJC meeting, relations between the New York Staff Union and management in New York were particularly strained, but this was not reflected in internal disputes in the Council: the first IJC had no serious disagreements. There were occasional dissents over judicial choices, but otherwise the issues dealt with by the Council were not partisan – both management and staff benefited if the system operated efficiently. The only problem, on occasion, was the General Assembly, with its infuriating tendency to postpone important decisions. For example, the IJC drew up a Code of Conduct for judges – the most progressive (and the shortest) available to date. It was promulgated and approved by the General Assembly, which then repeatedly failed to allow it to be enforced by

22 Id. at ¶¶ 50–2. 516 Robertson providing any means for anyone to complain. The result is that the UN’s own judiciary can boast the most up-to-date ethical code, but nothing at present can be done if they breach it.

Conclusion

Nevertheless, at the end of the first four years of the IJC which commenced in July 2009, it can be said that the new internal justice system has worked to increase management accountability and decrease staff grievances. There is a more responsible culture at the UN workplace: malicious disciplinary decisions are made less frequently because they are liable to be exposed. The bullying, “mobbing” and sexual harassment that featured so much in the past has greatly diminished. The UN clients – the poor and the war-torn – are better serviced by an organization that is less hypocritical than it used to be, and has a staff which is much more confident that they themselves will be fairly treated, because it now practices what it preaches. The UN’s message in favor of fairness, due process and independent adjudication is better heeded. The UN has set a precedent by according employees due process through an internal justice system, and other global institutions are beginning to follow. The ILO’s administrative tribunal, for example, which serves other UN constituents, has had to lift its game considerably. It may be that the IJC model – a small, independent and expert body, representing both staff and management, should be established for other large international organizations. It could be adapted for armies – including NATO – which have notoriously weak and dependent internal disciplinary systems. It could be deployed by international corporations, offering staff in far-flung offices a proper grievance procedure that would be vastly superior to local courts. The UN’s internal justice system could be offered to the consumers of UN services – the outsiders who stay out in the cold because of the UN’s immunities. Why should contractors, consumers, and all who have dealings with UN agencies not be entitled to approach an independent court in order to resolve their disputes, rather than be forced to negotiate from a position of weakness because the UN has absolute immunity against legal action? The model of a two-tier, formal administrative system, with excellence and independence guaranteed by an IJC, operating if informal attempts at mediation have failed, is a model that would conduce accountability and efficiency in all large international organizations to work for the people who need their help. chapter 24 Borrowing International Human Rights Law Some Examples from the Doctrine of the Margin of Appreciation in the African Charter on Human and Peoples’ Rights

Rachel Murray

In the early years after the coming into force of the African Charter on Human and Peoples’ Rights (ACHPR), among the criticisms directed towards its provisions was the inclusion of ‘clawback clauses’ in a number of articles. Indeed, it was seen as one of the unique, albeit negative, aspects of the ACHPR with some arguing that it reflected, as did other provisions, its ‘African’ take on international human rights law. Framed, as they were, as enabling states to restrict the rights provided for by ‘the law’, the concern was that what the ACHPR gave with one hand, it took away with the other, rendering the rights meaningless by reference to the ability of states to limit them. Yet this concern is now largely obsolete, with the African Commission making it clear that ‘in accordance with the law’ means ‘in accordance with international human rights law’. In defining what this ‘international human rights law’ is, the African Commission on Human and Peoples’ Rights (‘African Commission’), as the first body authorised to interpret the ACHPR,1 has looked beyond its own jurisprudence and borrowed from that of other international and regional bodies in identifying the margin of appreciation accorded to states when limiting certain rights. The reasons for the adoption of this approach, as will be discussed in this chapter, stem in part from a desire to limit the negative impact of the ‘clawback clauses’ and in part from the influence of its Articles 60 and 61 . Yet while this may contribute positively to the harmonisation agenda, moving towards the goal of ensuring consistency in approach across the regional and international human rights system, this is only as far as the African Commission is concerned. The traffic has not been, on the whole, two-way and in adopting too readily the jurisprudence of other bodies as its own, the African Commission risks impacting upon its credibility and does not

* This chapter draws upon a presentation at an expert workshop organised by the University of Nottingham’s Human Rights Law Centre, ‘International Human Rights Law: Towards Pluralism or Harmony?’, Nottingham, England, 24-25 June 2013. 1 Article 30 ACHPR.

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_025 518 Murray exploit the opportunities to learn from domestic African courts nor to consolidate its own findings. In discussing more broadly the borrowing and sharing of doctrines and jurisprudence between and among the international and regional human rights systems, this essay, using the margin of appreciation doctrine, as interpreted by the African human rights system, attempts to reflect Justice Jallow’s breadth of expertise, not only as one of the drafters of the African Charter, but also as an international human rights lawyer. As Justice Jallow has done throughout his distinguished career, in marrying the different standards and approaches adopted at the international and regional levels, so this chapter addresses some of these challenges.

1 Judicial Borrowing

Discussion on the ACHPR and its interpretation by the African Commission has often focused on the ‘African’ nature of the instrument,2 identifying the differences in approach that the ACHPR adopts towards, for example, its inclusion of economic, social and cultural rights, a more detailed list of peoples’ rights beyond the right to self-determination, and sections on individual duties.3 One might expect, therefore, that in crafting this identity, the African Commission would draw upon sources of law and instruments from within the continent, including domestic courts in Africa, and would show a general reluctance to engage with the jurisprudence or provisions found in other regional human rights instruments, such as the European Convention on Human Rights (ECHR) and Inter-American Convention on Human Rights (IACHR). As will be discussed below, however, this is not what has transpired. The African Commission has engaged in this ‘trans judicial communication’4 wholeheartedly, drawing extensively on the jurisprudence and documents of the European Court

2 E.g. Communications 143/95-150/96, Constitutional Rights Project and Civil Liberties Organisation v Nigeria, 5th November 1999, para. 26. 3 See e.g. M. wa Mutua, ‘The Banjul Charter and the African Cultural Fingerprint: An Evalution of the Language of Duties’, 35 Virginia Journal of International Law (1995) 339–380; G. W. Mugwanya, Human Rights in Africa. Enhancing Human Rights through the African Regional Human Rights System, Transnational Publishers, Ardsley, 2003. 4 A-M. Slaughter, ‘A Global Community of Courts’, 44 Harvard International Law Journal (2003) 191; C. McCrudden, ‘A Common law of human rights? Transnational judicial conversations on constitutional rights’, 20 Oxford Journal of Legal Studies (2000) 499–532; J. M. Pasqualucci, ‘The harmonization of human rights laws: guaranteeing the plurality of individual rights’, in L. C. Backer, Harmonizing law in an era of globalization: convergence, divergence and resistance, Carolina Academic Press, Durham, 2007, 35–54. Borrowing International Human Rights Law 519 of Human Rights, the Inter-American Commission and Court and the UN treaty bodies. This is perhaps no more apparent than in its analysis of permissible limitations to rights in the ACHPR which will be the focus of this chapter. Prompted by the relative silence in the provisions of the ACHPR, the African Commission has drawn inspiration, through exploiting the opportunities provided by Articles 60 and 61, from other regional and international treaty bodies.

2 Clawback Clauses and ‘within the law’

Articles 8–12 of the ACHPR read as follows:

Article 8 Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.

Article 9 1. Every individual shall have the right to receive information. 2. Every individual shall have the right to express and disseminate his opinions within the law.

Article 10 1. Every individual shall have the right to free association provided that he abides by the law. 2. Subject to the obligation of solidarity provided for in [Article] 29 no one may be compelled to join an association.

Article 11 Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.

Article 12 1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law. 2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality. 520 Murray

3. Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions. 4. A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law. 5. The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.

Article 13 1. Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law. 2. Every citizen shall have the right of equal access to the public service of his country. 3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law.

Article 14 The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.

There is no derogation clause in the Charter. Whilst the African Commission could arguably have taken a similar approach, as will be seen below, to that which it has adopted on limitations of rights, reflecting the views of other international and regional bodies, here it has adopted a distinctly different standard. It has held that a lack of derogation clause means that there are no circumstances under which derogations are permitted in the Charter: ‘limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies or special circumstances’.5 Neither, therefore, does the Charter expressly provide a list of rights from which no derogations are permitted. Under what circumstances, therefore, are limitations permitted to rights in the ACHPR? The African Commission has approached this in two ways: firstly through examining the specific clauses in each of the provisions of the

5 Communications 105/93-128/94-130/94-152/96 Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria, 31st October 1998, para. 67. Borrowing International Human Rights Law 521

Charter; and secondly through its applicability of a catch-all limitation clause, Article 27(2). Initially, the reference to ‘law’ in the above articles of the ACHPR were described as ‘clawback clauses’, with a concern that states could limit the rights at a whim.6 However, ‘law’ in this context has been consistently held by the African Commission to mean ‘in accordance with international human rights law’.7 In Communication 275/03, Article 19 v Eritrea, for example, Eritrea had argued that it was justified in, inter alia, holding a number of journalists incommunicado given the circumstances prevailing in the state at the time, and in particular in response to threats to overthrow the government. The African Commission reiterated that ‘only restrictions on rights which are consistent with the Charter and with States Parties’ international obligations should be enacted by the relevant national authorities. The lawfulness of Eritrea’s actions must therefore be considered against the Charter and other norms of international law, rather than by reference to its own domestic laws alone.’8 To hold otherwise would ‘render the Charter meaningless’ and ‘to allow national law to have precedence over the international law of the Charter would defeat the purpose of the rights and freedoms enshrined in the Charter. International human rights standards must always prevail over contradictory national law. Any limitation on the rights of the Charter must be in conformity with the provisions of the Charter’.9 It is its reference not only to the African Charter, but also other international human rights instruments which is particularly interesting and the African Commission has broadened this such that ‘domestic legislation must be in conformity with the African Charter or other international human rights instruments and practices’,10 suggesting that the rules on limitations can be drawn from instruments and jurisprudence beyond the African Charter itself. Consequently, although the African Commission has not always referred to the ‘margin of appreciation’ it has employed the principles developed by the European Court of Human Rights in this context.

6 ‘. . . too much autonomy allowing them to violate human rights with impunity’, and were seen as a ‘weakness in the African system’, M. Mutua, The African human rights system: a critical evaluation, 6, http://www.hdr.undp.org/docs/publications/background_papers/ MUTUA.pdf, p. 3. See also S. Singh, ‘The impact of clawback clauses on human and peoples’ rights in Africa’, 18(4) African Security Review (2009) 95–104. 7 Communications 105/93, 128/94, 130/94 and 152/96, op cit., para. 36. 8 Communication 275/03, Article 19 v Eritrea, 30th May 2007, para. 92. My italics. 9 Ibid., para. 105. See also 105/93-128/94-130/94-152/96 op cit. 10 Communication 297/05, Scanlen and Holderness v Zimbabwe, 3rd April 2009, para. 115. 522 Murray

3 So What are Justifiable Limitations under the ACHPR?

The African Commission has upheld a general presumption against restriction of rights: ‘competent authorities should not enact provisions which limit the exercise of this freedom. The competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the Constitution and international human rights standards’.11 Furthermore, restrictions on rights cannot be ‘general’ or ‘wholesale’.12 Therefore ‘ban- ning the entire private press on the grounds that it constitutes a threat to the incumbent government is a violation of the right to freedom of expression’.13 Restrictions therefore need to be ‘as minimal as possible and should not undermine fundamental rights guaranteed under international law.14 However, the African Commission has recognised that the limitations are not expressly detailed in the ACHPR as in other treaties, noting ‘the phrase “within the law” . . . provides a leeway to cautiously fit in legitimate and justifiable individual, collective and national interests as grounds of limitation’.15 Therefore, it has also applied Article 27(2) as a catch-all provision to deal with limitations and in so doing has drawn heavily on interpretation of the ECHR by the European Court of Human Rights. Article 27(2) reads:

The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.

The use of Article 27(2) is an interesting one, however as it finds itself in the ACHPR under the ‘individual duties’ section. As Judge Ouguergouz in Consolidated Matter of Tanganyika Law Society, The Legal and Human Rights Centre v The United Republic of Tanzania and Reverend Christopher R Mtikila v The United Republic of Tanzania, held: ‘this provision is a priori intended to prevent the abuse that the individual might likely commit in the exercise of

11 Communication 101/93, Civil Liberties Organisation (in respect of the Nigerian Bar Associa- tion) v Nigeria, 22nd March 1995, at para. 16. Communications 105/93-128/94-130/94-152/96 op cit., para. 65. 12 Communications 105/93-128/94-130/94-152/96 op cit., para. 65. 13 Communication 275/03, op cit., para. 107. 14 Communications 48/90-50/91-52/91-89/93 Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15th November 1999, para. 80. Communication 101/93, op cit., para. 25. 15 Communication 313/05, Kenneth Good v Botswana, 26th May 2010, para. 188. Borrowing International Human Rights Law 523 his or her rights and freedoms rather than to protect the individual from abusive limitations to his or her rights and freedoms by the state’.16 However, the Court upheld the approach adopted by the African Commission on numerous occasions that ‘the only legitimate reasons for limitations to the rights and freedoms of the African Charter are found in Article 27.2, that is, that the rights of the Charter “shall be exercised with due regard to the rights of others, collective security, morality and common interest.”17 In its interpretation of this provision, the African Commission has drawn heavily upon jurisprudence from the European Court, as well as, albeit to a lesser extent, that of the Inter-American Commission and Court18 and UN human rights committees19 in their application of the margin of appreciation doctrine. It has therefore referred to the need for any restriction to be ‘necessary in a democratic society’,20 founded upon a ‘legitimate State interest’ and clearly provided by law,21 and this must be to ‘serve a general purpose’ and ‘strictly proportionate . . . for the advantages which are to be obtained’.22 What the African Commission appears to have done on some occasions is attempt to identify the extent to which there is an ‘international consensus’ on the content of a right which will impact on how it then interprets it itself.

16 Applications Nos. 009/2001, 011/2011, In the Consolidated Matter of Tanganyika Law Society, The Legal and Human Rights Centre v The United Republic of Tanzania and Reverend Christopher R Mtikila v The United Republic of Tanzania, Judgment of 14th June 2013, separate opinion of Vice-President Fatsah Ouguergouz, para. 30. 17 Communications 105/93-128/94-130/94-152/96 op cit., para. 68. 18 See e.g. Communication 276/2003, Centre for Minority Rights Development and Minority Rights Group on behalf of Endorois Welfare Council v Kenya, 25th November 2009, which drew heavily on Saramaka case before the Inter-American Court and the Dogan case before the European Court regarding interpretation of ‘property’ and limitations on such, particularly with respect to ‘special measures that should be accorded to indigenous peoples and their land. 19 See e.g. extensive reference to the Pinhero Principles in Communications 279/03-296/05, Sudan Human Rights Organisation, Centre on Housing Rights and Evictions v Sudan, 27th May 2009, para. 204: Noting the Pinhero Principles are not legally binding, ‘they however reflect the emerging principles in international human rights jurisprudence. When these principles are read together with decisions of regional bodies, such as the cited European Court decisions, the African Commission finds great persuasive value in the said principles, albeit as a guide to interpret the right to property under Article 14 of the African Charter’. 20 Resolution on Adoption of Declaration of Principles of Freedom of Expression in Africa, Interference with Freedom of Expression, 2002, ACHPR /Res.62(XXXII)02, para. II.2. 21 Communication 313/05, op cit. 22 Communication 313/05, op cit. 524 Murray

For example, in Communication 313/05, Kenneth Good v Botswana, where an Australian national teaching at the University of Botswana had his contract terminated having been expelled from Botswana, on the basis that he wrote an article criticising the government and that Botswana was a poor example of African presidential succession, the African Commission referred to the right to information as a ‘widely recognised right in international and regional human rights law’, noting Articles 19 UDHR, ICCPR, among others. It then held that:

the same approach is adopted by the three major regional human rights instruments. So, there seems to be an international consensus among states on the content of the right to freedom of expression. This consensus similarly extends to the need to restrict the right to freedom of expression to protect the rights or reputation of others, for national security, public order, health or morals. Freedom of expression is not therefore an absolute right, it may be restricted for the reasons mentioned above but such restrictions should be necessary and have to be clearly provided by law. . . .23

A high water mark of this approach is perhaps best illustrated by Communica- tion 297/05, Scanlen and Holderness v Zimbabwe.24 Asked to consider whether legislation which required compulsory accreditation by the Media and Infor- mation Commission in Zimbabwe (an organisation alleged to have been tainted by ministerial input) violated Article 9 of the Charter, the parties had made reference to a range of international and regional instruments as well as an Advisory Opinion by the Inter-American Court of Human Rights, the Advi- sory Opinion on Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism.25 The African Commission, notes a similar question that was asked of the Inter-American Court in that case. Citing extensively from the latter’s judgment the African Commission concludes:

the African Commission has considered the opinion expressed by the Inter-American Court on Human Rights in the Costa Rican case, and finds a great deal of persuasion in the reasoning and the approach adopted by the Inter American Court on the question of compulsory licensing of journalists. The Commission is convinced that the ques-

23 Communication 313/05, op cit., para. 186–187. 24 Communication 297/05, op cit. 25 Advisory Opinion OC-5/85, November 13, 1985. Borrowing International Human Rights Law 525

tion of compulsory accreditation is the same as compulsory licensing which was addressed by the Inter-American Court. The Commission is inclined to accept the argument that compulsory licensing or accreditation amounts to a restriction of the freedom to practice the journalistic profession where it aims to control rather than regulate the profession of journalism. . . . Articles 60 and 61 of the African Charter enjoin the Commission to seek inspiration from other international human rights instruments, precedent and doctrine. The Inter-American Court found that compulsory licensing aimed at controlling journalists was a violation of Article 13 of the American Convention. By applying the same logic, and analogy to the conditions stipulated for compulsory accreditation under AIPPA, without which, one could not practice journalism, the African Commission finds that section 79 of AIPPA constitutes a violation of Article 9 under the African Charter.26

There have been few occasions where the African Commission has articulated its broader reasoning to the limitations of rights, but one such case is Communication 255/02, Garreth Anver Prince v South Africa.27 This concerned an individual being denied a contract to practise as an attorney in South Africa as he had disclosed previous convictions for possession of cannabis and expressed an intention to use it on the basis of his religion. The African Commission held that there had been no violation of the ACHPR, but the arguments raised by the complainants and government, and the response of the African Commission, are interesting in providing further explanation as to the African Commission’s approach to the doctrines. The government argued that the African Commission should apply the principles of subsidiarity and margin of appreciation. The Commission held that with respect to the former:

The principle of subsidiarity indeed informs the African Charter, like any other international and/or regional human rights instrument does to its respective supervisory body established under it, in that the African Commission could not substitute itself for internal/domestic procedures found in the Respondent State that strive to give effect to the promotion

26 Communication 279/05, op cit., italics added. 27 Communication 255/02, Garreth Anver Prince v South Africa, decision of 7th December 2004. See H. Rubasha, Accommodating Diversity: is the doctrine of the margin of appreciation as applied in the European Court of Human Rights relevant in the African human rights system?, submitted in partial fulfilment of the degree of LLM, Faculty of Law, Centre for Human Rights University of Pretoria, 27 October 2006, at 38–39. 526 Murray

and protection of human and peoples’ rights enshrined under the African Charter.

And the latter:

Similarly, the margin of appreciation doctrine informs the African Charter in that it recognises the Respondent State in being better disposed in adopting national rules, policies and guidelines in promoting and protecting human and peoples’ rights as it indeed has direct and continuous knowledge of its society, its needs, resources, economic and political situation, legal practices, and the fine balance that need to be struck between the competing and sometimes conflicting forces that shape its society.28

The African Commission therefore follows the line of the European Court and others in providing the state with the ability first to address the issue, under the doctrine of subsidiarity,29 and the ‘primary competence and duty of the Respondent State’ to promote and protect human rights, as reflected in the requirement to exhaust domestic remedies and in the limitations clauses in the ACHPR.30 Similarly, the African Commission held that the principle of subsidiarity holds that the international court or commission should only act if the State’s response is inadequate:

Whatever discretion these two doctrines may allow Member States in promoting and protecting human and peoples’ rights domestically, they do not deny the African Commission’s mandate to guide, assist, supervise and insist upon Member States on better promotion and protection standards should it find domestic practices wanting. They do allow Member States to primarily take charge of the implementation of the African Charter in their respective countries. In doing so, they are informed by the trust the African Charter has on Member States to fully recognise and give effect to the rights enshrined therein. What the African Commission would not allow, however, is a restrictive reading of these doctrines, like that of the Respondent State, which advocates for the hands-off approach

28 See similarly, e.g. Greens and MT v UK, Applications 60041/08, 60054/08, European Court of Human Rights, Judgment 23 November 2010. 29 P. G. Carozza, ‘Subsidiarity as a structural principle of international human rights law’, 97 AJIL (2003): 38–79, at 69. 30 Communication 255/02, op cit., para. 48. Borrowing International Human Rights Law 527

by the African Commission on the mere assertion that its domestic procedures meet more than the minimum requirements of the African Charter.31

4 Justification for Use of Other International and Regional Bodies Case Law

The analysis above illustrates several things. Firstly, the African Commission often uses European Court, UN treaty body and Inter-American treaty body case law on an equal footing with its own case law, and sometimes, one might argue, considers the former to be more persuasive. The African Commission uses this other jurisprudence to support its own reasoning, but very rarely to depart from them. Secondly, however, its approach is not consistent. There are cases where the jurisprudence is used, and others where one might expect it to have been, but it is not.32 Where it does refer to the margin of appreciation from other treaty bodies, it does not consistently apply this other jurisprudence. For example, when referring to what may be ‘necessary’ it has applied ‘absolutely necessary’ as well as ‘reasonably necessary’ and on some occasions simply ‘necessary’33 without clarifying the difference between the various standards.34 Therefore, while the reasoning of the African Commission has the flavour of that of the European Court, in particular, it is not strictly followed. Its ability to use this international and regional jurisprudence is based on Articles 60 and 61 of the ACHPR:

Article 60 The Commission shall draw inspiration from international law on human and peoples’ rights, particularly from the provisions of various African instruments on human and peoples’ rights, the Charter of the United Nations, the Charter of the Organization of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples’ rights

31 Communication 255/02, op cit., para. 48. 32 Communication 266/03, Kevin Mgwanga Gunme v Cameroon, 27th May 2009. 33 Communication 140/94-141/94-145/95 Constitutional Rights Project, Civil Liberties Organ- isation and Media Rights Agenda v Nigeria, 5th November 1999, para. 44. 34 It referred to this principle but also in the same case: ‘rational and legitimate purpose’, Communication 255/02, op cit., para. 40. 528 Murray

as well as from the provisions of various instruments adopted within the Specialized Agencies of the United Nations of which the parties to the present Charter are members.

Article 61 The Commission shall also take into consideration, as subsidiary measures to determine the principles of law, other general or special international conventions, laying down rules expressly recognized by member states of the Organization of African Unity, African practices consistent with international norms on human and people’s rights, customs generally accepted as law, general principles of law recognized by African states as well as legal precedents and doctrine.

Whether ‘shall’ implies an obligation to do so is open to debate, certainly the African Commission has not adopted this approach in its inconsistent application of the jurisprudence, wavering between being ‘amenable to legal arguments that are supported by appropriate and relevant international and regional human rights principles, norms and standards’,35 and being ‘required’ to do so.36 And despite its additional ability to refer to, ‘African practices consistent with international norms’, there have been many fewer occasions on which it has done this.

5 Some Tentative Conclusions

One might imagine that the ACHPR, lauded as an ‘African instrument’ and over which there is a strong sense of African ownership, the colonial legacy and concerns about the Eurocentric nature of international human rights law, that the African Commission would have been reluctant to use case law that emanates from other systems, particularly the European. However, there have been no arguments raised by the African Commission that use of the case law of Inter-American, European or UN jurisprudence is not appropriate in

35 Communication 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v Guinea, 7th December 2004, paras 37–38. 36 ‘The Commission is also required to take into consideration other international conventions and African practices consistent with international norms etc.’, Communication 211/98, Legal Resources Centre v Zambia, 7th May 2001, para. 58. Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh and 13 others) v Angola, 22nd May 2008, paras 46 and 78. Borrowing International Human Rights Law 529 an African context. Therefore whilst on some occasions it has held that ‘the African Charter should be interpreted in a culturally sensitive way, taking into full account the differing legal traditions of Africa and finding expression through the laws of each country’,37 what is ‘culturally sensitive’ has been largely interpreted through reference to jurisprudence and standards developed outside of the continent. As the African Commission has itself clearly articulated, it is ‘more than willing to accept legal arguments with the support of appropriate and relevant international and regional human rights instruments, principles, norms and standards taking into account the well recognised principle of universality which was established by the Vienna Declaration and Programme of Action of 1993, and which declares that “All human rights are universal, indivisible and interdependent, and interrelated” ’.38 In the context of the circumstances in which it has done so, these are broad, and include, but are certainly not limited, to where it has no rule to rely upon.39 What tentative conclusions and explanations can be drawn here? Firstly, despite a perception that the African Charter and its bodies would reinforce an ‘African’ approach, in fact this has not translated into an unwillingness to use jurisprudence and standards which are not created on the continent. Indeed, the European Court, Inter-American bodies and UN treaty bodies are held with a great degree of respect and their jurisprudence clearly holds legal, if not also political sway. For the youngest of the regional bodies, a desire to be in the same camp as what are perceived to be eminent and established bodies may necessitate an alignment of its jurisprudence with theirs. Related to this is a reluctance to distinguish itself from the many years of developed and nuanced findings of these bodies. It is in the areas where the European Court, for example, has had less experience (economic social and cultural rights, indigenous peoples) where the African Commission has been more willing to strike out and go it alone in terms of developing its own standards and approaches. Secondly, a more practical explanation for this reference to other instruments and case law is that when articulating its reasoning, much may depend on what the arguments and issues are put before it by the litigants and State party. One could argue that European Court of Human Rights, Inter-American Commission and Court and UN jurisprudence is more accessible to the

37 Communications 143/95–150/96, op cit., para. 26. 38 Communication 241/01, Purohit and Moore v The Gambia, 29th May 2003, para. 48. 39 Communication 373/09, Interights, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3rd March 2010, paras 8 and 9. 530 Murray international human rights lawyer, and perhaps even to the domestic African human rights lawyer. This may certainly be the case when compared with decisions of domestic African courts which are challenging to find. However, it cannot be really said to be the case with decisions of the African Commission itself now which are readily available on its website and in a variety of other locations. Is it therefore the focus of the mostly international NGOs who litigate before the African Commission, who advise local partners on their submissions, and who have a particular familiarity with these other bodies? But this does not fully explain the position as many of these organisations are extremely well versed in the work of the African Commission. One can probably only speculate whether the explanation is therefore then down to what is available to the secretariat and the Commissioners drafting the decisions. Thirdly, the reasoning of the African Commission is not always expressly set out in the decision, making it difficult to know on some occasions how it has balanced these other cases. This is even more so if the state has not responded at all, or not responded in detail to the allegations. However, there are broader implications for this discussion. Whilst there is certainly a benefit to the broader harmonisation of the international human rights system if the African Commission incorporates the findings of its regional and international counterparts into its own decisions, some caution should be exercised. Too easy a reliance on such findings, at the expense of developing and consolidating its own case law, drawing upon its own jurisprudence first, can undermine the credibility of its reasoning. Reference to other instruments and regions may risk alienating, in particular, States parties if the reasoning does not appear to be grounded in the African system and have an African focus.40 Will this approach actually encourage States to implement the African Commission’s decisions?41 This harmonisation agenda only works if there is two-way traffic, reflecting a ‘horizontal network’.42 Evidence suggests that while there is some reference to the jurisprudence of the African Commission in the decisions of the Inter- American Court and Commission and UN treaty bodies, it is extremely limited in the context of the European Court. One cannot equate therefore the extent

40 Frans Viljoen at University of Nottingham in June 2013, ‘International Human Rights Law: Towards Pluralism or Harmony?’. 41 G. L. Neuman, ‘Import, Export and Regional Consent in the Inter-American Court of Human Rights’, 19(1) EJIL (2008): 101–123. 42 Slaughter, op cit., p. 572. Borrowing International Human Rights Law 531 of the use of other bodies’ case law by the African Commission with their converse reference to ACHPR jurisprudence.43 Further, is harmonisation a desirable aim? It may be legitimate in the African system through Articles 60 and 61 of the ACHPR,44 and these provisions have ‘assisted the Commission to adopt a progressive interpretation of the Charter’ and ‘open a wide array of possible sources that could give interpre- tative guidance’.45 This does not necessarily mean that the reasoning is better.46 The African Commission’s approach has not been entirely consistent: it has borrowed on some occasions, but not others, and borrowed parts of the jurisprudence of others but adapted and changed it without any real explanation for the divergence. However, on a positive note, there is some indication that the African Court may be less willing to adopt a wholesale acceptance of international and regional jurisprudence and display the ‘thoughtful convergence’47 that some argue is necessary if harmonisation is to work appropriately. In the Consolidated Matter of Tanganyika Law Society, the Legal and Human Rights Centre v Tanzania and Reverend Christopher R Mtikila v Tanzania,48 the African Court examined whether independent candidates could stand for election.49 Considering Article 13(1) of the Charter the Court applied familiar language to when rights can be restricted: ‘the restrictions must be necessary in a democratic society; they must be reasonably proportionate to the legitimate aim pursued’, noting the case law of the European Court (Handyside, Gillow v UK), the Inter-American Court and the African Commission. It similarly employs Article 27(2) as a catch-all limitation clause, noting that it

agrees with the African Commission that the limitations to the rights and freedoms in the Charter are only those set out in Article 27(2) of the Charter and that such limitations must take the form of “law of general

43 See M. Killander, ‘Interpreting Regional Human Rights Treaties’, 7(13) International Journal on Human Rights, (2010) 145–169, at 154. 44 E. Voeten, ‘Borrowing and non-Borrowing among International Courts’, 39(2) Journal of Legal Studies (2010) 547–576, at 549. 45 F. Viljoen, International Human Rights Law in Africa, OUP, 2012, p. 325. 46 Ibid; McCrudden, op cit., 528. 47 L. Helfer and A-M. Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’, 7 Yale Law Review (1997–1998) 273, at 374. 48 Applications No.009/2011, and 011/2011, op cit. 49 See A. K. Abebe, ‘Right to stand for elections as an independent candidate in the African human rights system: the death of the margin of appreciation doctrine?’, AfricLaw, http:// africlaw.com/2013/08/19/right-to-stand-for-elections-as-an-independent-candidate-in- the-african-human-rights-system-the-death-of-the-margin-of-appreciation-doctrine-2/. 532 Murray

application” and these must be proportionate to the legitimate aim pursued. This is the same approach with the European Court.50

Further, referring to General Comment No.25 of the Human Rights Committee, the African Court states that it ‘agrees with this General Comment, as it is an authoritative statement of interpretation of Article 25 of the ICCPR, which reflects the spirit of Article 13 of the Charter and which, in accordance with Article 60 of the Charter, is an “instrument adopted by the United Nations on human and peoples’ rights” that the Court can “draw inspiration from” in its interpretation of the Charter’.51 Then introducing another element: ‘it is the view of the Court that the limitation imposed by the Respondent ought to be in consonance with international standards, to which the Respondent is expected to adhere’, referring to Article 27 of the VCLT.52 Yet, despite this, in its final conclusion the African Court does not adopt the approach of the Inter-American Court in Case of Castañeda Gutman v Mexico,53 on similar facts. As Abebe points out the relevance of contextual differences between the two cases ‘in influencing the final outcome was marginal’.54 In restricting the margin of appreciation to states with respect to the right to political participation, the African Court ‘proved to be less deferential’ to the Inter-American Court.55 Without undermining the African Commission’s jurisprudence and recognising the rich analysis of other courts and commissions, the African Court arguably managed to tread the line between deference and respect. In so doing it introduces a different but welcome approach towards harmonisation of international and regional human rights standards on the continent.

50 Applications No. 009/2011, and 011/2011, op cit., para. 107.1. 51 Ibid, para. 107.4. 52 Ibid, para. 108. 53 Inter-American Court on Human Rights, Judgment of 6 August 2008. 54 Abebe, op cit. 55 Ibid. chapter 25 From Coup Reaction to Coup Prevention

Christopher Waters

Introduction: Coups in Context

Justice Jallow’s A Journey for Justice graphically portrays the 1981 attempted coup in Gambia on a human scale.1 He writes, “for several days the country was held to ransom by bands of roving rebels. The country was plunged into chaos. There was much violence, much loss of life and indiscriminate destruction of both public and private property.”2 A Journey for Justice also describes in detail what a rule of law response to a coup or attempted coup looks like. In Gambia, this involved, among other things, fair trials for those charged with mutiny and other offences following the coup, through the mechanism of a hybrid international-domestic criminal law response (long before the hybrid tribunals of the 1990s and 2000s gained popularity). Justice Jallow’s personal role in these post-1981 prosecutions, his removal from office in 1994 by a successful military coup, and his subsequent reengagement with the Gambian legal system makes for instructive reading about the strengths and fragilities of the theory and practice of rule of law in the face of strongmen’s tactics and guns. However, one theme that is implicit in Justice Jallow’s book but, perhaps it is fair to say, not thoroughly explored, is the method of constructing a system of democratic and civilian (not necessarily the same thing) oversight over the military on a long-term basis. The aim of this chapter is to offer some thoughts in that regard. It suggests that domestic or international rule of law responses to specific coups, coups in a particular region, or even coups writ large, are necessary but insufficient steps towards asserting civilian, democratic control over armed forces. A lack of democratic control and oversight of the military remains an ongoing global issue in both fragile and seemingly more resilient democracies. Accordingly, we should avoid unduly pathologizing coups as independent phenomena. Coups are more accurately conceived of as being on one extreme of a spectrum of democratic control of armed forces; as massive

1 H. B. Jallow, A Journey for Justice (Bloomington: AuthorHouse, 2012). 2 Jallow, ibid. at 105.

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_026 534 Waters failures of democratic control.3 This chapter will first provide an account of what legal and policy tools have been developed to address successful military takeovers.4 It will argue that, while welcome and important, these measures are bound to be of the ‘closing the barn door after the horse has left’ variety unless a broader perspective on democratic oversight of armed forces is considered. The second part of the paper will briefly highlight emerging practice on maintaining resilient democratic oversight. In particular it will discuss the role the legal system has to play as one plank of this oversight.

1 Responding to Coups

Needless to say, Gambia’s experience with military-led or inspired coups is not unique in Africa. Indeed, between the founding of the Organization of African Unity (OAU) in 1963 and the end of the Cold War, over half of all African states had at some point during the period been ruled by a military government which had overthrown a civilian government.5 During the Cold War period the OAU was committed to a “non-interference” policy and, outside of apartheid regimes, accepted at the table whoever happened to be sovereign at any given moment, regardless of how undemocratically a leader came to power. In the post-Cold War era, ‘democratic breezes’ swept through Africa, and the OAU – and later the African Union (AU) – began to take increasingly firm policy measures against coups. As events in Mali and Guinea-Bissau in 2012 and Central African Republic and Egypt in 2013 reveal, however, coups are hardly Cold War relics on the African continent. Neither are coups relics in other parts of the global south, as the 2009 coup in Honduras underlines. In 2013 there were even whiffs of a plotted coup in Greece, a member of the European Union, and the threat of coups – real or imagined – hangs over NATO member Turkey.6

3 Gambia’s “quasi-military” regime following a flawed transition to democracy under President Jammeh provides an example of a jurisdiction which is in some ways post-coup but far from a properly functioning democracy. See A. Saine & E. Ceesay, ‘Post-Coup Politics and Authoritarianism in the Gambia: 1994–2012’ in A. Saine, E. Ceesay and E. Sall (eds), State and Society in The Gambia Since Independence: 1965–2012 (Trenton: Africa World Press, 2013) at 177. 4 By ‘successful’ I simply mean that the coup plotters have managed to overthrow the civilian government for any period of time beyond a de minimus period of mere days. 5 E. Y. Omorogbe, ‘A Club of Incumbents? The African Union and Coups d’Etat’, 44 Vanderbilt Journal of Transnational Law, (2011) 123, at 126. 6 See H. Smith, ‘Greece’s democracy in danger, warns Demos, as Greek reservists call for coup’, The Guardian, 26 September 2013, available online at http://www.theguardian From Coup Reaction to Coup Prevention 535

Traditionally, the international legal system was inclined to take the internal order of a state at face value. Whatever leader or group wielded effective control over territory would ultimately be dealt with by other states and the international community. This is not necessarily an incoherent position – non- interference in domestic affairs is, after all, a major plank of the UN Charter system. At the same time the traditional position placed no stock on the rule of law (at least domestically) or democracy. As Brad Roth puts it, the notion of sovereign independence linked to control over territory traditionally entailed “the right of each to fight its civil war in peace and to be ruled by its own thugs.”7 The end of the Cold War brought with it – incrementally and unevenly it should be stressed – the rise of the “democratic governance” school of thought and a different kind of reaction to coups.8 The international system’s response to coups in Haiti (1991) and Sierra Leone (1997) were seen as indicative of a sea change in how the international community reacted to internal, extra-legal, power shifts. In the case of Haiti, international reaction to the overthrow of the Aristide government went beyond traditional ambivalence or even non- recognition. The international community asserted that the new government was void ab initio and the Security Council authorised a forceful intervention into that country.9 In Sierra Leone, ECOWAS physically removed the junta which had overthrown the Kabbah government, in a move tacitly condoned by the international community. While there was undeniably a good deal of ‘ad hocery’ in the international community’s forceful reactions to the coups in Sierra Leone and Haiti, the emerging practice of actively opposing coups was also manifested in new policy doctrines of regional organizations. In Africa, the “condemnation and rejection of unconstitutional changes of governments” in the 2000 Constitutive Act of the African Union built on earlier statements of the OAU.10

.com/world/2013/sep/26/greece-democracy-backslide-coup-threat and ‘Turkish ‘Coup Plot’: Military Demands Retrial’, BBC, 2 January 2014, available online at http://www.bbc .com/news/world-europe-25580374. 7 B. R. Roth, ‘Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine’ 11 Melbourne Journal of International Law (2010) 393, at 394. 8 See for example, T. M. Franck, ‘The Emerging Right to Democratic Governance’ 86 Ameri- can Journal of International Law (1992) 46; G. H. Fox, ‘The Right to Political Participation in International Law’ 17 Yale Journal of International Law (1992) 539. 9 See SC Res. 940, 31 July 1994. 10 Article 4(p) of the Constitutive Act of the African Union (11 July 2000). Other aspects of Article 4 (notably 4(h) and (j)) also highlight the African Union’s shift from “non- interference” or “non-intervention” to “non-indifference”; see Ben Kioko, ‘The right 536 Waters

The high water mark in terms of an African policy actively against extra-legal changes to the domestic order followed in the form of the African Charter on Democracy, Elections and Governments (ACDEG).11 This latter instrument not only prohibits further participation in AU sessions by unlawful governments but provides several theoretically robust measures – including prosecutions and sanctions – to suppress coups. ACDEG only came into force on 15 February 2012 when Cameroon – with its dubious democratic credentials – became the fifteenth state to ratify. Despite low participation rates and problematic participants, the ACDEG is a strong statement against business as usual with respect to coups on the continent. In addition to its OAU/AU predecessors, the ACDEG also had precedent in the Inter-American system. The 2001 Inter- American Democratic Charter stated that: “an unconstitutional interruption of the democratic order or an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state, constitutes, while it persists, an insurmountable obstacle to the governments participation” in OAS sessions.12 Aside from the two regional systems canvassed, coups have also been addressed at the UN level. Following the 2009 Honduran coup, for example, the General Assembly unanimously condemned the military takeover and demanded “the immediate and unconditional restoration of the legitimate and Constitutional Government of the President of the Republic of Honduras, Mr. José Manuel Zelaya Rosales, and of the legally constituted authority in Honduras, so that he may fulfill the mandate for which he was democratically elected by the Honduran people.”13 The resolution also called on states not to recognize the new government. The emergence of a new norm against coups and some robust examples of opposition to coups by the international community must be applauded. This is a good news story for the rule of law in domestic and international affairs. Nonetheless, there are several caveats which must be made in welcoming this development. First, there has been an uneven reaction to coups by the international community even in recent years. The muted reaction to Egypt’s military takeover from the Morsi regime is emblematic of this. While many expressions of concern were issued by world leaders, some key players were clearly reluctant to call the coup a coup and there was no serious attempt to

of intervention under the African Union’s Constitutive Act: From non-interference to non-intervention’, 85 International Review of the Red Cross (2003) 807, at 819. 11 African Charter on Democracy, Elections and Governance (30 January 2007). 12 Article 19, Inter-American Democratic Charter. 13 GA Res. 63/301, 30 June 2009. From Coup Reaction to Coup Prevention 537 pretend the new government was somehow a legal nullity.14 If this first point about uneven reactions of the international community is an empirical fact, the second point is normatively related. Not all coups are equally bad – some may have limited legitimacy. As Eki Yemisi Omorogbe has pointed out, in calling for a more nuanced AU approach to coups:

In several cases (in Mauritania in 2005 and 2008 and in Niger), a coup had substantial domestic support, and in two cases (in Mauritania in 2005 and in Niger), a coup actually appeared likely to advance democratiza- tion. It appears that the AU policy is to systematically refuse to recognize regimes that come to power through coups, irrespective of the precise circumstances. The danger of the AU’s focus on the restoration of constitutional order is that it may shore up the position of a regime that lacks legitimacy in the eyes of its own citizens.15

One author has even coined the counter-intuitive phrase, “democratic coup”: “although all coups have anti-democratic features insofar as they place the military in power by force or the threat of force, some military coups are distinctly more democracy promoting than others. In these coups, the military responds to popular opposition against an authoritarian or totalitarian regime, overthrows that regime, and facilitates fair and free elections within a short span of time.”16 In the context of the Arab Spring, the Egyptian military’s takeover from a deeply unpopular President Mubarak in 2011 provides a good example of a coup with at least some perceived legitimacy. In Sub-Saharan Africa, a good example would be the 1991 overthrow of the former Malian dictator Moussa Traoré by Amadou Tumani Touré. The latter swiftly organized elections within two years and handed over power to a democratically elected government. Ironically, Touré was himself later to become the victim of a coup when his government was overthrown in 2012 by a group of soldiers shortly before the end of his second term in office as a democratically elected President.17

14 For a collection of international reactions, see H. Alexander, ‘World reaction to Egypt coup’, The Telegraph, 04 July 2013, available online at http://www.telegraph.co.uk/news/ worldnews/africaandindianocean/egypt/10159658/World-reaction-to-Egypt-coup.html. 15 E. Y. Omorogbe, supra note 5, at 154. 16 O. O. Varol, ‘The Democratic Coup d’Etat’, 53 Harvard International Law Journal (2012) 292, at 294. 17 “Mali’s President, Ousted in Coup, Steps Down”, New York Times, 8 April 2012, available online at http://www.nytimes.com/2012/04/09/world/africa/mali-president-amadou- toumani-toure-resigns-after-coup.html?ref=africa&_r=0. 538 Waters

Third, the lack of a consistent approach to coups may be an inevitable feature of the international legal order. Roth points out that “The international system’s continuing diversity of interests and values, let alone regime types, significantly impedes so fundamental a change in international legal relations as the systematic denial to coup regimes of the legal capacity to assert rights, incur obligations, exercise powers, and confer immunities on behalf of their states in the international order.”18 The final caveat is the most important for the purposes of this chapter and will be addressed in the next part. Briefly put, it is that the focus on how to address coups takes the spotlight off coup prevention and the broader imperative of exercising deep democratic and civilian oversight over the armed forces.

2 Preventing Coups

The chapter now turns to democratic oversight of the armed forces beyond coups. It looks at how usurpation of democratic authority can be prevented – and, more fundamentally, how democratic oversight can be strengthened – through legal institutions. In one sense the post-coup measures discussed in the previous section are preventative; a strong international reaction undoubtedly deters future unlawful attempts to seize power. Furthermore, the African Union and Inter-American instruments discussed contain a number of provisions on strengthening democracy and the rule of law generally; if implemented, these measures – from improving the administration of elections to promoting the nebulous notion of democratic culture – will undoubtedly make countries more coup resistant as well as improve the quality of civic and economic life for all citizens. These instruments also contain some general guidance on democratic and civilian oversight. Article 14(1) of ACDEG provides that:

State Parties shall strengthen and institutionalize constitutional civilian control over the armed and security forces to ensure the consolidation of democracy and constitutional order.19

18 B. R. Roth, supra note 7, at 438–439. 19 Article 14(1), African Charter on Democracy, Elections and Governance, available online at http://www.au.int/en/sites/default/files/AFRICAN_CHARTER_ON_DEMOCRACY_ELEC TIONS_AND_GOVERNANCE.pdf. From Coup Reaction to Coup Prevention 539

Article 4 of the Inter-American Charter is more muted on the subject, stating:

The constitutional subordination of all state institutions to the legally constituted civilian authority and respect for the rule of law on the part of all institutions and sectors of society are equally essential to democracy.

Unfortunately, these instruments lack specific guidance on how democratic and civilian control of the armed forces is to be asserted. More specifically for the purposes of this chapter, they lack guidance on implementing democratic oversight of the military through the mechanism of the legal system. Before turning to democratic oversight squarely, however, two things should be pointed out. First, the question of oversight of the military assumes that there is a military. While for many the existence of armed forces in every sovereign state appears to be a natural feature of the landscape, there is no reason for this to be so. Costa Rica and Panama have both banned their militaries, voluntarily.20 Demilitarization has been imposed as well. Japan in the post-War era is an obvious example, but Kosovo after international intervention in 1999 is another.21 A demilitarized Palestine is also foreseen in many independence scenarios.22 Other radical constitutional (not intended in a pejorative sense) measures can be put in place.23 For example, the short-lived Senegambia Confederation was entered into by Senegal and Gambia following the 1981 coup attempt in the latter country, in large measure to control Gambian security forces (though ironically the 1981 coup was carried out in the absence of a full-fledged military).24 The second thing to note before turning squarely to legal system oversight is that legal mechanisms are not the only – or even the most-important- oversight mechanism. Effective legislative oversight

20 Article 12, Political Constitution of the Republic of Costa Rica states that: “The Army as a permanent institution is abolished. There shall be the necessary police forces for surveillance and the preservation of the public order.” 21 See Article 9 of the Japanese Constitution on the “Renunciation of War” and see para. 15 of SC Res. 1244, 10 June 1999. 22 M. B. Wise, ‘Constitutions and Control of the Military: Can the Experience of the Americas Assist the Middle East?’ 48 Willamette Law Review (2012) 497. 23 Another, less radical, constitutional step, is to signal in advance that coups will have no legal effect. For example, Argentina’s Constitution states: “This Constitution shall remain in force even if its observance is interrupted by acts of force against the institutional order and the democratic system. Such acts shall be irrevocably void.” See M. B. Wise, supra note 19, at 507. 24 A. Hughes, ‘The collapse of the Senegambian Confederation’, 30 The Journal of Commonwealth & Comparative Politics (1992) 200–222. 540 Waters of the military is a well-established ideal and has been thoroughly examined.25 It is well established, for example, that civilian executive overreaching through the armed forces is a greater danger to mature democracies than the overthrow of the civilian executive, and that the legislative branch of government must act as a balance to civilian executive authority over the military.26 Civil society, including media, scrutiny is another plank in the oversight puzzle.27 Both legislative and civil society oversight are beyond the scope of this chapter, however. With these caveats in mind, the chapter will now turn to one underexplored dimension of democratic, civilian oversight of the armed forces, namely oversight through legal institutions.28 From the start, it should be noted that there is no shortage of “action” in this sphere today. Demands for legal redress for military malfeasance come from a variety of sources (soldiers themselves,29 civilians at home and abroad,30 and detainees),31 are translated through many judicial and quasi-judicial structures (military courts, civilian courts, ombudsmen, domestic and international

25 See for example, M. Caparini and P. Fluri, ‘Introduction: The Relevance of Democratic Control and Reform of the Security Sector’, in H. Born, M. Caparini, and P. Fluri, (eds), Security Sector Reform and Democracy in Transitional Societies (Baden-Baden: Nomos Verlagsgesellschaft,2002) and H. Born and H. Hänggi, (eds), The ‘Double Democratic Deficit:’ Parliamentary Accountability and the Use of Force Under International Auspices (Aldershot: Ashgate Publishers, 2003). 26 For a popular account of this in the US context see, R. Maddow, Drift: The Unmooring of American Military Power, (New York: Crown Publishers, 2012). In my view, one of the lasting legacies of current congressional concerns over the US military’s handling of sexual assault cases may be greater legislative oversight of the military generally. 27 See, for example, K. Barnes and P. Albrecht, ‘Civil Society Oversight of the Security Sector and Gender’, DCAF:ISSAT, available online at http://issat.dcaf.ch/content/download/ 4887/43154/file/Tool%209-Civil%20Society%20Oversight%20of%20the%20Security%20 Sector%20and%20Gender.pdf. 28 This part of the chapter relies on my previous work, including C. Waters, ‘Beyond Lawfare: Juridical Oversight of Western Militaries’ 46 Alberta Law Review (2009) 885 and C. Waters, ‘Democratic oversight through courts and tribunals’ in A. Duxbury and M. Groves, (eds), Armed Forces and Society (forthcoming, Cambridge University Press). 29 See for example R (on the application of Smith) (FC) v Secretary of State for Defence [2011] 1 AC 1 (improper kit claim). 30 See for example Al-Skeini and Others v United Kingdom, Application No. 55721/07, [2011] ECHR 1 (claims by families of individuals killed by British troops in Iraq). 31 See for example Canada (Attorney General) v Amnesty International Canada, 2009 FC 918, [2010] 4 FCR 182. (claim that detainees transferred by Canadian Forces to Afghan authorities faced torture). From Coup Reaction to Coup Prevention 541 commissions of inquiry, coroners, among others)32 and implicate a variety of legal regimes (international human rights, international humanitarian law and domestic constitutional and legislative instruments).33 Furthermore, these claims come across disparate spatial and temporal planes; they may come to courts continents or decades away from the events in question. However, while there are a good many claims, there has also been a great deal of resistance by militaries and their advocates. An influential think-tank in the United Kingdom in 2013 considered the “judicial creep” into the armed forces and argued that:

The customs and practices of Britain’s armed forces are now under threat from an unexpected quarter: the law. Recent legal developments have undermined the armed forces’ ability to operate effectively on the battlefield.34

Other dramatic terms for this “judicial creep – which has been decried by politicians, senior military leaders and indeed some judges themselves – have included, “legal encirclement”, “legal siege” and “lawfare”.35 However, the reality is that the judicialisation resisters have far more often than not, won the day. The reasons for this are various and include the permissiveness of the Law of Armed Conflict (where the notion of military necessity holds great sway),36 the involvement of military personnel in the drafting of international treaties

32 And often the same claim may be litigated before more than one of these institutions. For example, the detainees issue cited ibid, was also litigated in Canada before the Military Police Complaints Commission [see Military Police Complaints Commission, Commission’s Final Report – MPCC 2008–042 – Concerning a Complaint by Amnesty International Canada and British Columbia Civil Liberties Association in June 2008, 27 June 2012, available online at: http://www.mpcc-cppm.gc.ca/03/afghan/2012-06-27/index-eng .aspx, as well as the courts. 33 And these regimes may overlap of course; see the ICJ’s discussion of the relationship between International Human Rights and International Humanitarian Law in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports (2004) 136. 34 T. Tugendhat and L. Croft, ‘The Fog of War: An Introduction to the Legal Erosion of Britain’s Fighting Power’, The Policy Exchange, 2013, available online at http://www .policyexchange.org.uk/images/publications/the%20fog%20of%20law.pdf, at 10. 35 See Waters, supra note 25. 36 C. Jochnick and R. Normand, ‘The Legitimation of Violence: A Critical History of the Laws of War’ 35 Harvard International Law Journal (1994) 49. 542 Waters or domestic legislation which seek to govern military action,37 distinct military justice regimes, as will be discussed below, and just plain obfuscation and delay. Let us take two examples of the latter factor from Northern Ireland in the United Kingdom, where democratic control of the armed forces is normally thought to be in place, though there are many such examples. Notoriously, the “Bloody Sunday” inquiry, which examined the actions of British soldiers in Northern Ireland in 1972 did not report until in 2010.38 Less well known is the fact that dozens of inquiries into deaths – allegedly at the hands of security forces or paramilitaries related to security forces – remain outstanding today. They have been delayed by, literally, decades; as an April 2014 report in The Guardian noted:

The average time families have waited for a conclusion to adjourned inquests is 20 years and seven months. Many of the reopened inquests waiting to be heard concern deaths that occurred as far back as 1971. The majority of the cases have not led to prosecutions.39

This example is from Northern Ireland in the United Kingdom, a functioning democracy with a functioning legal system. Needless to say, attempts to use the courts in fragile democracies or countries where the rule of law is weak have met with far less success. In other words, the occasional successes in holding militaries accountable for malfeasance in western states should not be taken to mean that there is today sufficient legal oversight of the armed forces in those states or more globally. What would a strengthening democratic oversight through legal mechanisms look like? There are many mechanisms, strategies and avenues for doing this, from strengthening the independence of military legal advisers, to more globally instituting military ombudsmen regimes to ensure soldiers themselves are not mistreated by their commanders.40 I will touch briefly on two

37 See Waters, supra note 25. 38 The National Archives, The Bloody Sunday Inquiry, (2010), available online at http:// webarchive.nationalarchives.gov.uk/20101103103930/http://bloody-sunday-inquiry.org/. 39 I. Cobain, ‘’Delay, delay, delay’: Northern Ireland Troubles inquests still outstanding’, The Guardian, 13 April 2014, available online at http://www.theguardian.com/uk-news/2014/ apr/13/delay-northern-ireland-troubles-inquests-outstanding. 40 The reforms put in place in Canada following that country’s Somalia debacle are instructive and involved placing the Judge Advocate General’s office outside the functional chain of command, creating an ombudsman and a Military Police Complaints Commission, see Government of Canada, National Defence, Report of the Somalia Commission of Inquiry, 2 July, 1997. From Coup Reaction to Coup Prevention 543 such avenues in the remaining part of this chapter. The two selected avenues are about scope of civilian versus military justice systems and both provide examples where there is recent – if limited – progress being made. The first is expanding the scope of civilian judicial scrutiny. The second is restricting the scope for military justice.

2.1 Expanding the Scope of Judicial Scrutiny My argument here is that there should not be any ‘no go’ zones for civilian courts acting within the widest plausible scope of their jurisdiction; the existence of a military nexus should not be a trigger to judicial legal actors to, formally or informally, think of the matter as beyond their legitimate purview as has so often been the case. The reluctance of courts to scrutinise military action, particularly when those militaries act abroad, stems from a variety of reasons. These range from a desire not to interfere in traditional understanding of executive prerogative to the belief that operational realities of warfight- ing are not appropriate subjects for retrospective civilian scrutiny. In some jurisdictions there is also a well-founded fear that criticizing the military may result in reprisals against the judges themselves. At times judicial restraint has resulted in specific “no go” doctrines. These include the notion of combat immunity (tort law inapplicable in battle conditions) in some Commonwealth jurisdictions and non-justiciability (military decision making to be left to the executive and legislative branches) in the US.41 Courts, have also, however, found other ways of sidestepping decision-making over military matters, including through narrow jurisdictional understandings of their power. We have seen a gradual – if uneven and incremental – widening of understandings of jurisdiction in the European Convention space but this is far from the global norm.42 For example, in the Afghan detainees litigation in Canada, the Federal Court found that the Canadian Charter of Rights and Freedoms could not apply to Canadian Forces actions in Afghanistan and therefore the Court could not enjoin the military from transferring detainees to Afghan authorities where they may have faced torture.43 Similarly, in the US, courts have refused to extend the reach of habeas corpus to cover detainees at Bagram Air Force Base in Afghanistan or other places beyond the unique circumstances of the semi-permanent US presence at Guantanamo.44

41 For a recent discussion of the doctrine, see Ghane v Mid-South Institute of Self Defence Shooting, Inc., No. 2012-CA-00125-SCT, 2014 WL 172133 (Miss Jan. 16, 2014). 42 Al Skeini, supra note 27. 43 Canada (Attorney General) v Amnesty International Canada, supra note 28. 44 See Al Maqaleh v Gates, 605 F. Supp. 3d 84 (D.C.C. 2010). 544 Waters

I stress that to say that courts should abandon “no go zone” thinking is not to say that courts should ignore the operational realities of military life. The appropriate role of courts is to ensure that the military complies with domestic and international law and is respectful of democratic values. It is not the job of courts to attempt to civilianize the military. Having due regard for operational realities means, among other things, recognizing the unique demands of military service – including the imperatives of discipline and command – and the presence of physical danger. Not all contexts require the same kind of deference however. For example, if a court is asked to judge a commander’s targeting decision made in the heat of battle, it should judge based only on what information was known to the commander at the time and should allow for a reasonable margin of error in light of pressurized circumstances. Less deference is due outside of battle in, say, matters of recruitment and procurement. There are some indications of a trend towards this kind of nuanced decision- making by courts. A 2013 decision of the Supreme Court of the Netherlands provides a good example.45 In The State of the Netherlands v. Hasan Nuhanović, the Court found the Dutch state responsible for the deaths of Bosnian Muslim men during the massacre at Srebrenica in July 1995. Counsel for the state had pressed for extreme judicial restraint in the matter, arguing among other things that the court should not judge military decision making in retrospect and that the attribution of state responsibility to the Netherlands for something which occurred while “Dutchbat” was under UN command would lead to a refusal of troop contributing states to send soldiers to future UN peacekeeping missions. The Court resoundingly rejected these arguments:

[N]o basis for the exercise of this kind of judicial restraint can be found in unwritten international law, the ECHR or ICCPR, or indeed in the domestic law of the Netherlands. The exercise of judicial restraint of this kind . . . would mean that there would be virtually no scope for courts to assess the consequences of the conduct of a troop contingent . . . Such far reaching restraint is unacceptable.

45 The State of the Netherlands v. Hasan Nuhanović (The Supreme Court of the Netherlands, Sept. 6, 2013), available online at http://www.rechtspraak.nl/Organisatie/Hoge-Raad/ OverDeHogeRaad/publicaties/Documents/12%2003324.pdf and The State of the Netherlands v. Mehida Mustafić-Mujić et al. (The Supreme Court of the Netherlands, Sept. 6, 2013), available online at http://www.rechtspraak.nl/Organisatie/Hoge-Raad/ OverDeHogeRaad/publicaties/Documents/12%2003329.pdf. For another example, one from the French courts, see C. Waters, ‘France Discovers “legal siege” ’, Sword and Scale (May 2013), available online at http://www.cba.org/CBA/sections_military/newsletters2013/ siege.aspx. From Coup Reaction to Coup Prevention 545

At the same time, the court recognized that military operations are subject to unique realities:

The court should indeed make allowance for the fact that this concerns decisions taken under great pressure in a war situation . . .

One corollary to my argument that the scope of civilian courts should be expanded is that the scope of the military’s purview – including through its military justice mechanisms – should be restricted when it interferes with the oversight of civilian legal mechanisms.

2.2 Scope of Military Justice In 2006, Emmanuel Decaux, the Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights, submitted twenty draft principles on the use of military tribunals.46 The first, and most basic, of the “Decaux Principles” is that “Military tribunals, when they exist, may be established only by the constitution or the law, respecting the principle of the separation of powers. They must be an integral part of the general judicial system.”47 The other Decaux principles address fair trial standards, the application of international humanitarian law, the general prohibition on trying civilians, accessibility and transparency, recourse to civilian courts on appeal and a role for victims. None of these principles are new, as battles in 19th century France over the legitimate scope of military justice – culminating in the Dreyfus affair – demonstrate.48 The concepts behind the Principles are also reflected, piecemeal at least, in decisions from international and regional rights bodies, particularly on the issues of independence of military courts and these courts’ jurisdiction to try civilians.49 Furthermore, there has been little principled

46 Draft Principles Governing the Administration of Justice Through Military Tribunals, UN Doc. E/CN.4/2006/58, 13 January 2006, at 4 available online at http://www1.umn.edu/ humanrts/instree/DecauxPrinciples.html. 47 Ibid. at para. 15. 48 See J. Cerullo, ‘Juridical Anti-Militarism in Fin de Siècle France: The Aernoult-Rousset Affair’, Paper presented at the meeting of The Law and Society Association, Jul 06, 2006, available online at http://www.allacademic.com/meta/p_mla_apa_research_ citation/0/9/6/1/9/p96191_index.html. 49 For example, the African Commission on Human and Peoples’ Rights interpreting the African [Banjul] Charter on Human and Peoples’ Rights has prohibited the trial of civilians in military courts. See the ‘Concluding Observations and Recommendations on the 3rd Periodic Report of the Republic of Uganda’ (Presented at the 45th Ordinary Session of the African Commission on Human and Peoples’ Rights held in Banjul, the Gambia, May 2009) at paras 27 and 37 and recommendation (f ) available online at http:// 546 Waters opposition to the core of the Principles by militaries (though an exception is the debate over whether and in what circumstances military courts should have the jurisdiction to try civilians).50 The main problem with the Decaux Principles is not their substance; it is difficult to argue against them on an abstract level in any system where the democratic control of the armed forces is at least a stated ideal. Rather, the problem is that the Decaux Principles have been broadly ignored. NGOs and academics have made occasional references to them,51 and there is the odd reference to them in judicial proceedings, but they have not become a central part of the conversation about democratic and civilian control of military justice. Arguably, there is a global trend towards fairer military courts exercising jurisdiction only over military personnel and over matters with a strict functional military nexus. But this proposition lacks an empirical basis and, at any rate, in the absence of the Decaux Principles, there would be no one single benchmark document. There are attempts to breathe life into the Principles. For example, in 2013 the UN Special Rapporteur on the independence of judges and lawyers sent a questionnaire to states on their military justice systems (unfortunately receiving less than two dozen responses) and prepared a special report on military courts. In her report, she called on the Human Rights Council and General Assembly to “promptly” consider and adopt the Principles.52 In doing so, she noted that: “In many States, the primary purpose of military tribunals continues to be that of serving the

www.achpr.org/files/sessions/45th/conc-obs/uganda:-3rd-periodic-report,-2006-2008/ achpr45_conc_staterep3_uganda_2009_eng.pdf. This decision followed on the Ugandan Supreme Court’s ruling on the limited competence of military courts, see Attorney General v Uganda Law Society, Constitutional Appeal No. 1 of 2006, January 20, 2009, [2009] UGSC 2. 50 Draft Principles, supra note 43, Principle 5 deals with the jurisdiction of military courts to try civilians and has raised concerns among military jurists that the inherent suspicion of military tribunals in this field is unwarranted. Principle 5 provides that “[m]ilitary courts should, in principle, have no jurisdiction to try civilians.” By contrast, M. R. Gibson, ‘International Human Rights Law and the Administration of Justice through Military Tribunals: Preserving Utility while Precluding Impunity’, 4 Journal of International Law and International Relations (2008) 1 has suggested that if military courts meet the independence and impartiality criteria there is no principled reason to prohibit these courts trying certain types of civilian nationals (for example, dependents of service personnel, contractors) abroad, as indeed practicality and law may require. 51 See for example, http://www.hrw.org/sites/default/files/reports/ugandamilcts0711webw cover_0.pdf. 52 Report of the Special Rapporteur on the Independence of Judges and Lawyers, UN Doc. No. A/68/285, 7 August 2013 at para. 92, available online at http://www.law.yale.edu/ documents/pdf/conference/UN_A68–285.pdf. From Coup Reaction to Coup Prevention 547 interests of the military, rather than those of society, and military tribunals end up constituting a weapon for combating the so-called “enemy within” rather than being a tool for disciplining the troops.”53 If the Decaux Principles were to be adopted by the General Assembly, this would represent an important milestone on the way towards entrenching democratic oversight globally. Of course, implementation on a national level would be an even greater challenge, but the adoption of clear international norms would give domestic and international actors the first clear set of standards on restricting the scope of military justice.

Conclusion

This chapter has suggested that civilian courts expand their understanding of their role in military oversight. Similarly, it has advocated restricting the scope of military justice systems and the adoption of the Decaux Principles. Whether these things will come to pass remains to be seen. In the absence of a global trend towards greater democratic oversight of the military through the legal system, however, we are unlikely to see an end to coups. Coups are not independent phenomena and anti-coup standards at the international level, while welcome, will not work without a broader perspective on democratic oversight of the military – including through courts – as a preventative measure.

53 Ibid. at para. 24. chapter 26 International Criminal Law and Refugee Law: Lessons Learned

Joseph Rikhof

1 Introduction

This chapter discusses the relationship between international criminal law and refugee law. The emphasis is on the interplay between concepts developed in international criminal law with respect to the international crimes of war crimes and crimes against humanity as well as the notion of extended liability on one hand, and the exclusion provision in the 1951 Refugee Convention1 on the other. While a person seeking asylum is entitled to protection under this treaty if he or she has “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”,2 Article 1F sets an exception to this rule by excluding a person if: a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

International criminal law has played a major role in the development of the various concepts set out in exclusion Article 1F(a) while in the context of Article 1F(c) most acts have been in the nature of human rights violations or terrorist activities. Additionally, in the UK, activities against international peacekeepers pursuant to a mandate of the Security Council of the United Nations were also brought within the parameters of this provision. The Supreme Court of

1 Convention Relating to the Status of Refugees, 189 UNTS 137. For a discussion of other issues in this area, see the Special Issue of the Journal of International Criminal Justice, entitled The Interaction Between Refugee Law and International Criminal Justice, Volume 12, Issue 5 (2014). 2 Article 1A(2).

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_027 International Criminal Law and Refugee Law 549 the United Kingdom acknowledged that international humanitarian law (IHL) could play a role in interpreting the level of protection owed to peacekeepers but was of the view that in the specific situation at hand it was not relevant.3 Before examining in detail the connection between exclusion ground 1F(a) and international criminal law, it is useful to briefly canvass other areas of possible convergence between refugee law and other aspects of international law. In this regard it is pertinent to observe that not only has international humanitarian law and international criminal law influenced refugee law, there have also been a number of areas of cross-fertilization with varying results.

2 Convergence between International Humanitarian Law, International Criminal Law and Refugee Law Outside the Area of Exclusion

With respect to IHL, the wording of four regional refugee instruments, which extend the definition of ‘refugee’ beyond what is contained in the 1951 Refugee Convention, contain a clear invitation to consider IHL. The 1966 Bangkok Principles on the Status and Treatment of Refugees, which is a non-binding document adopted by the Asian-African Legal Consultative Organization (AALCO), uses the Refugee Convention’s definition but goes on to state that ‘the term “refugee” shall also apply to every person, who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality’.4 The 1969 Convention on the Specific Aspects of Refugee Problems in Africa gives in Article I.1 the same definition as the Refugee Convention but then includes the same description as the Bangkok Principles.5 The 1984 Cartagena Declaration on Refugees, applicable in Latin America, while not a binding treaty, has considerable moral

3 Al-Sirri v Secretary of State for the Home Department and DD (Afghanistan) v. Sec’y of State for the Home Dep’t, [2012] UKSC 54, paras 64–65 (U.K.). 4 Final Text of the Asian-African Legal Consultative Organization’s 1966 Bangkok Principles on Status and Treatment of Refugees, 40th Session, New Delhi, Article 2. 5 1000 UNTS 46 Article I.2, for a historical overview of this definition, see, I. C. Jackson, The Refugee Concept in Group Situations, The Hague/London/Boston: Martinus Nijhoff Publishers 191–194 (1999). 550 Rikhof authority in Latin America6 and recommends the following to be included as part of the definition of ‘refugee’, again in addition to the Refugee Convention parameters: ‘persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order’.7 Lastly, in Europe, the European Qualification Directive8 provides additional or subsidiary protection (in addition to refugee protection) to persons who are subjected to serious harm, which is identified as follows:

(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

The United Nations High Commissioner for Refugees (UNHCR), which has the mandate to both process asylum seekers where national authorities have not set up programs to do so and to provide guidance to their own employees as well as national authorities, has been interested in the notions of armed conflict, foreign aggression and other terms used in these four instruments and

6 OAS/Ser.L/V/II.66, doc 10, rev. 1, 190–193; see also, G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law, 3rd edn Oxford Univ. Press, Oxford 38 (2007). 7 Conclusion 3; see id. at 626; see also, I. C. Jackson, Refugee Concept in Group Situations, Martinus Nijhoff Publishers at 395–404, 414–415 (for a historical overview of this definition). 8 As a result of the Treaty of Amsterdam, which came into force in 1999, asylum and immigration matters were moved from the jurisdiction of the individual states of the European Union and became the subject of legally binding instruments of harmonization by one of the legislative organs of the EU, the Council of the European Union as part of a Common European Asylum System (CEAS). As part of this asylum harmonization, the Council has adopted five measures which set out minimum standards for members of the EU, namely the Temporary Protection Directive in 2001; the Receptions Conditions Directive in 2003 (dealing with conditions and rights for asylum seekers pending the asylum procedure); the Dublin Regulation in 2003 (regulating which member state is responsible for examining an asylum claim); the Qualification Directive in 2004 (addressing eligibility for protection); and the Asylum Procedures Directive in 2005 (dealing with the rules of procedure during examination of asylum claims). (See G. S. Goodwin-Gill and J. McAdam at 39–40 and P. Boeles, M. den Heijer, G. Lodder and K. Wouters, European Migration Law (Antwerp-Oxford-Portland: Intersentia, 2009) at 321–322; the latter also describe in detail these measures at 323–357). International Criminal Law and Refugee Law 551 commissioned a number of papers in the Legal and Protection Policy Research Series with respect to these issues.9 Some of these papers call for the use of IHL to give meaning to these specific terms10 or indicate how IHL can help inform in general the concepts of persecution of civilians, specifically in the context of the phenomenon of ‘war refugees’ or people fleeing the violence associated with armed conflict and how such people could be considered victims of persecution.11 In this context it is interesting to draw a comparison between the various documents in international law, both in refugee law and international criminal law, which were designed shortly after the Second World War to recognize that certain groups, which had been victimized as a result of certain characteristics, should be given protection. Of these various documents, the 1951 Refugee Convention addressed itself to the most groups, namely five, which is unsurprising as generally human rights treaties tend to be broader

9 T. Farrell and O. Schmitt, The Causes, Character and Conduct of Armed Conflict, and the Effects on Civilian Populations, UN High Commissioner for Refugees (UNHCR) 1990–2010, PPLA/2012/03, paper 26 (2012); V. Holzer, The 1951 Refugee Convention and the Protection of People Fleeing Armed Conflict and Other Situations of Violence, UNHCR, PPLA/2012/05, paper 28 (2012); M. Sharpe, The 1969 OAU Refugee Convention and the Protection of People fleeing Armed Conflict and Other Situations of Violence in the Context of Individual Refugee Status Determination, UNHCR, PPLA 2013/01, paper 30 (2013); M. Reed-Hurtado, The Cartagena Declaration on Refugees and the Protection of People Fleeing Armed Conflict and Other Situations of Violence in Latin America, UNHCR, PPLA 2013/03, paper 32 (2013); see also UNHCR, Summary Conclusions, Expert Meeting on Complementarities between International Refugee Law, International Criminal Law and International Human Rights Law, Arusha, Tanzania, 11–13 at para. 24 (2011). For a more general academic treatment, see, H. Storey, Armed Conflict in Asylum Law: “The War-Flaw”, 31 Refugee Survey Quarterly 1–32 (2012); J. F. Durieux, Of War, Flows, Laws and Flaws: A Reply to Hugo Storey, 31 Refugee Survey Quarterly 161–176 (2012); S. S. Juss, Problematizing the Protection of ‘War Refugees: A Rejoinder to Hugo Storey and Jean-François Durieux, 32 Refugee Survey Quarterly 122–147 (2013); V. Chetail, Armed conflict and forced migration: a systemic approach to international humanitarian law, refugee law and human rights law, A. Clapham and P. Gaeta Editions, Oxford Handbook of International Law in Armed Conflict 700–734 (2014); D. Cantor and J. F. Durieux, Refuge from Inhumanity? War Refugees and International Humanitarian Law, Brill Nijhoff Publishers (2014). 10 M. Sharpe, The 1969 OAU Refugee Convention and the Protection of People fleeing Armed Conflict and Other Situations of Violence in the Context of Individual Refugee Status Determination, UNHCR, PPLA 2013/01, paper 30 at 14–16 (2013); M. Reed-Hurtado, The Cartagena Declaration on Refugees and the Protection of People Fleeing Armed Conflict and Other Situations of Violence in Latin America, UNHCR, PPLA 2013/03, paper 32, 13–16 (2013). 11 V. Holzer, The 1951 Refugee Convention and the Protection of People Fleeing Armed Conflict and Other Situations of Violence, September 2012 (PPLA/2012/05, paper 28, 18–21, 31–32). 552 Rikhof than ICL instruments due to their different underlying purposes.12 The ICL instruments in question were the 1945 Charters of the Nuremberg and Tokyo Tribunals and the 1949 Genocide Convention. The first two provided that the tribunals had jurisdiction to prosecute persons involved in persecution on political, racial or religious grounds as a crime against humanity13 while the Genocide Convention extended its reach to protect national, ethnical, racial or religious groups.14 However, while the Refugee Convention’s reference to its five groups has remained the same, ICL has undergone a considerable expansion in this regard. This is especially the case in the area of the crime against humanity of persecution where the ICC Statute now says that persecution can be directed ‘against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender . . . or other grounds that are universally recognized as impermissible under international law.”15

12 These different purposes were mentioned by the ICTY when called upon to circumscribe the parameters of the crime against humanity of persecution and urged to take into consideration the meaning of this concept in both refugee law and human rights law. It did not accede to this invitation for the following reasons: “The Trial Chamber finds, however, that these cases cannot provide a basis for individual criminal responsibility. It would be contrary to the principle of legality to convict someone of persecution based on a definition found in international refugee law or human rights law. In these bodies of law the central determination to be made is whether the person claiming refugee status or likely to be expelled or deported has a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’. The emphasis is more on the state of mind of the person claiming to have been persecuted (or to be vulnerable to persecution) than on the factual finding of whether persecution has occurred or may occur. In addition, the intent of the persecutor is not relevant. The result is that the net of ‘persecution’ is cast much wider than is legally justified for the purposes of imposing individual criminal responsibility. The definition stemming from international refugee law or human rights law cannot therefore be followed here.” Judgment, Kupreskić (IT-95-16), Trial Chamber, 14 January 2000, § 589; see also, UNHCR, Summary Conclusions, Expert Meeting on Complementarities between International Refugee Law, International Criminal Law and International Human Rights Law, Arusha, Tanzania, 11–13 at paras 13–21 (2011). 13 Article 6(c) of the Charter of the Nuremberg Tribunal and article 5(c) of the Tokyo Tribunal, which omitted the reference to religious grounds. 14 Article 2. 15 Rome Statute of the International Criminal Court (1998), Article 7.1(h); the ICTY, ICTR and SLSC Statutes had essentially maintained the same formulation as the IMT Charter, in respectively articles 5(h), 3(h) (although the preamble of this article mentions national, political, ethnic, racial or religious grounds as being an element of all crimes against humanity but this addition has been found to be jurisdictional rather than a International Criminal Law and Refugee Law 553

With respect to genocide, while the definition of genocide, including the categories of victim groups, has not changed in the statutes of the international tribunals or the ICC,16 the implementation of the ICC Statute at the domestic level presents quite a different picture in that where a number of states enacted legislation, more categories had been added. Examples of this are Uruguay (where the targeted groups of genocide include national, ethnic, racial, religious, political, membership in a trade union or a group with its identity based on reasons of gender, sexual orientation, culture, social, age, disability or health); Ecuador (where the legislation adds to the groups of genocide victims of gender, sexual orientation, age, health and conscience); the Republic of Congo (where the legislation adds to the definition of genocide, in addition to the ones in the ICC Statute, any group that is defined by an arbitrary characteristic)17 and Canada (which refers to an identifiable group of persons).18 While the parameters of crimes against humanity and genocide have other requirements (such as “widespread or systematic attacks” for crimes against humanity and special intent, or dolus specialis for genocide) to be taken into account when prosecuting perpetrators of these crimes, it is perhaps time to consider whether the narrower definitions in human rights instruments dealing with victim groups, should not be adjusted in view of these new developments in ICL. In particularly, it is observed that at least one regional refugee instrument already includes a more expansive definition of ‘refugee’ to include the following groups: race, colour, religion, nationality, ethnic origin, gender, political opinion or membership of a particular social group.19 The reference to situations of international or internal armed conflict in Article 15(c) of the European Qualification Directive, and the use of IHL to interpret the meaning of this term has been the subject of judicial consideration

reflection of customary international criminal law, see Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić (IT-94-1), Appeals Chamber, 2 October 1995, § 305; Judgment, Akayesu (ICTR-96-4-A), Appeals Chamber, 1 June 2001, §§ 460–469; Judgment, Krnojelac (IT-97-25-A), Appeals Chamber, 17 September 2003, §§ 184–185) and 2(h) (although this article also adds ethnic grounds). 16 Article 4.2 of the ICTY, article 2.2 of the ICTR and article 6 of the ICC. 17 See, J. Rikhof, Fewer Places to Hide? The Impact of Domestic War Crimes Prosecutions on International Impunity, Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes, Torkel Opsahl Academic EPublisher 25 (2010) at pages 21–25; before the implementation of the ICC, the 1957 Penal Code of Ethiopia had already added social group to the other established categories of genocide. 18 Crimes against Humanity and War Crimes Act, sections 4(3) and 6(3). 19 Article 1 of the 1966 Bangkok Principles on Status and Treatment of Refugees. 554 Rikhof in Germany and especially in the United Kingdom.20 This in turn has created a great deal of academic discussion in the UK where the most recent contribution to this debate has called for less reliance on IHL, specifically for the notion of internal armed conflict, but asked instead to consider this terminology sui generis with its own meaning,21 an approach which was adopted by the European Court of Justice:

the answer to the question referred is that, on a proper construction of Article 15(c) of Directive 2004/83, it must be acknowledged that an internal armed conflict exists, for the purposes of applying that provision, if a State’s armed forces confront one or more armed groups or if two or more armed groups confront each other. It is not necessary for that conflict to be categorised as ‘armed conflict not of an international character’ under international humanitarian law; nor is it necessary to carry out, in addition to an appraisal of the level of violence present in the territory concerned, a separate assessment of the intensity of the armed confrontations, the level of organisation of the armed forces involved or the duration of the conflict.22

IHL and ICL have also been used in another aspect of refugee law, namely the issue of conscientious objectors. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status23 indicates that a person can obtain refugee status for refusing to perform military service because of a personal conviction regarding certain military actions.24 The Handbook does not view such conviction as sufficient for any military action, but only for activities that are ‘condemned by the international community as contrary to basic rules of human conduct’.25 This rather vague concept has been interpreted by

20 See, J. Rikhof, The Criminal Refugee: The Treatment of Asylum Seekers with a Criminal Background in International and Domestic Law, Dordrecht: Republic of Letters Publishers 168, 175–177, 182 (2012) (The national jurisdictions discussed in this article are Austl., Belg., Can., Ger., Neth., N.Z., U.K., and U.S.). 21 S. S. Juss, Problematizing the Protection of ‘War Refugees: A Rejoinder to Hugo Storey and Jean-François Durieux, 32 Refugee Survey Quarterly 122–147 (2013). 22 Aboubacar Diakité v Commissaire général aux réfugiés et aux apatrides, C‑285/12, 30 January 2014, at paragraph 35. 23 HCR/IP/4/Eng.Rev.1, Geneva, January 1988. 24 Paragraph 171. 25 Idem. International Criminal Law and Refugee Law 555 the Court of Appeal in the UK as equivalent to exclusion Article 1F(a) in the cases of Krotov26 and BE (Iran).27 The Krotov case, involving a Russian deserter who did not want to fight in the war in Chechnya, primarily discussed war crimes and drew a connection between the provisions in the main treaties in international humanitarian law, the 1949 Geneva Conventions and their 1977 Additional Protocol II, which set out the activities that amount to war crimes, and exclusion Article 1F(a). It did not provide a detailed interpretation of the war crimes mentioned. The BE (Iran) case involved an Iranian soldier who did not want to be instrumental in the laying of landmines in Kurdistan during a time of peace. The court was of the view that such an objection could result in refugee status, as the person was asked to be involved in gross violations of human rights. While the court is equivocal in whether this type of behaviour is included in Article 1F, it would appear that, by referring to gross human rights violations and agreeing that the laying of mines had occurred in a systematic or widespread manner, it is very close to calling these activities crimes against humanity and, therefore, part of 1F(a). A variation on this theme occurred in Canada in a decision dealing with an American soldier who had deserted the U.S. army because he did not want to fight in Iraq as he felt that the incursion in Iraq in 2003 had been an act of aggression. The court came to the conclusion in the Hinzman case,28 relying on the Krotov decision, that the notion of acts, which have received the condemnation by the international community as contrary to basic rules of human conduct is equivalent to the conduct prescribed in exclusion Article 1F(a). The court was of the view that crimes against peace, as established by the Charter of the International Military Tribunal at Nuremberg after the Second World War, were considered a leadership crime29 which could only be committed by a person at the high policy level.30 Since Hinzman was a foot soldier he could not have committed such a crime. A more recent tribunal case in New Zealand

26 Krotov v. Sec’y of State for the Home Dep’t, [2004] EWCA Civ. 69 (U.K.). 27 BE (Iran) v. Sec’y of State for the Home Dep’t, [2008] EWCA Civ. 540 (U.K.); see also, ZQ (serving soldier) v. CG (Iraq), [2009] UKAIT 48 (U.K.); Andre Lawrence Shepherd v Bundesrepublik Deutschland (CJEU Case C-472/13, 26 February 2015. 28 Hinzman v. Canada (Minister of Citizenship and Immigration) (2006), FC 420 (Can.). 29 Paragraphs 141–142 and 155–160. 30 A position reflected in Article 8bis.1 of the Rome Statute, which was added in June 2010 during the first Review Conference of the Rome Statute in Kampala, Uganda but which is not yet in force. 556 Rikhof applied IHL and ICL principles as well as Canadian and UK jurisprudence to the situation of a conscientious objector during the armed conflict in Syria.31

3 International Crimes32

The interpretation of the parameters of the international crimes by national courts and tribunals in giving meaning to exclusion Article 1F(a) has been influenced considerably by both the Statutes of international criminal tribunals and their jurisprudence. The discussion in refugee determination decisions with respect to war crimes, has taken place primarily in the context of non-international armed conflicts. This has happened at two levels, namely by a direct interpretation of the exclusion ground in Article 1F(a) or, in Europe, through an indirect examination of Article 15(c) of the Qualification Directive. In the direct approach, ICTY jurisprudence was relied upon to decide that war crimes could not be committed in such conflicts before 1990 (Canada33 and New Zealand)34 although in Belgium35 and the Netherlands,36 based primarily on IHL instruments, it was found to apply to situations in the late eighties.

31 AF (Syria) [2012] NZIPT 800388. 32 For a recent overview of international jurisprudence in this area, see, R. Currie and J. Rikhof, International and Transnational Criminal Law, 2nd Edition Irwin Law 107–167 (2013). 33 By the Federal Court in the cases of Bermudez v. Canada (Minister of Citizenship and Immigr.) (2005), FC 286 (for the situation in Honduras in 1989 relying on the Tadić AC decision, see below, footnote 38); Verntocilla v. Canada (Minister of Citizenship and Immigr.) (2007), FC 575 (for a situation in Peru between 1985 and 1992 while in passing); Howbott v. Canada (Minister of Citizenship and Immigr.) (2009), FC 881 (for Columbia between 1984 and 1993). 34 X v Refugee Status Appeals Authority (2009) NZCA 488 at paras 210–223, 228–234 (for a situation in Sri Lanka in 1992–1993) (relying on the Tadić AC decision, see below, footnote 38). 35 CPRR No. 99–1280/W7769, 6 August 2002, at paragraph 4.2.3 for Somalia between 1969 and 1991. 36 AbRS 9 July 2004, nr. 200401181/1; AbRS 7 October 2010, nr. 201006259/1/V1; AbRS, 14 December 2010, nr. 200909884/1/V3 for Iraq between 1986 and 1989; Dutch courts, including the Supreme Court of the Netherlands are of the view that under Dutch law crimes committed during non-international armed conflicts between 1979 and 1989 are punishable as war crimes in a criminal context as well, see Guénaël Mettraux, “Dutch Courts’ Universal Jurisdiction over Violations of Common Article 3 qua War Crimes”, 4 JICJ (2006) 362–371 (and further discussion as a result of this article in 4 JICJ (2006) 878– 889) with respect to the trial decision while for the decision of the appeal court of January 29, 2007, see case numbers LJN AZ7147 and LJN AZ9365, and the decision of the Supreme International Criminal Law and Refugee Law 557

Although the Tadić decision by the ICTY Appeals Chamber37 was factually related to an armed conflict situation in 1991, its more general reasoning and its reliance on customary international law, where some reference was made to national criminal decisions with findings of war crimes in non-international armed conflicts before that time, makes it difficult to point to a precise date for the expansion of individual criminal liability from international armed conflicts to its non-international counterparts. As such, it is difficult to state that the Belgian and Dutch decisions were in error when putting them in the international criminal law context. Crimes against humanity have received a great deal of treatment in all common law countries, (except the U.S.), as well as in Belgium, Germany and the Netherlands. The courts in these countries adopted the main international elements of this concept, namely a systematic or widespread attack against a civilian population with knowledge of the attack. These general elements of crimes against humanity are consistent with international criminal law, for the most part because the national courts in setting out these requirements relied directly on international instruments and jurisprudence.38 In Australia, the Federal Court of Australia, Full Court, has provided more detail about one aspect of the definition by holding that police officers can

Court of the Netherlands of July 8, 2008, case number LJN BC7418, all of which can be found at http://zoeken.rechtspraak.nl/. 37 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić (IT-94-1), Appeals Chamber, 2 October 1995, §§ 128–134. 38 In Australia, see SHCB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 229; SZCWP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 9; SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 42 (for a commentary on this case, see C. Drummond, “Different Sources of International Criminal Law and Exclusion: How the Federal Court of Australia in SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs Got it Wrong and Why it Matters”, 3 Oxford Monitor of Forced Migration (2013) at 35–42); SZITR v Minister for Immigration and Multicultural Affairs [2006] FCA 1759; in Belgium, see CE No. 184.647, 24 June 2008, CE No. 186.913, 8 October 2008; CCE No. 49.298, 10 October 2010; in Canada, see Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40; in Germany, see Bundesverwaltungsgericht (Federal Administrative Court), BverwG 10 C 2.10, 31 March 2011; in the Netherlands, see AbRS 31 Augustus 2005, nr. 200502650/1; Rb, The Hague, Awb 09/40819, 9 April 2010; in New Zealand, see Sequeiros Garate v. Refugee Status Appeals Authority, M826/97, High Court, 9 October 1997; The Attorney-General (Minister of Immigration) v Tamil X and the RSAA, [2010] NZSC 107; in the UK, see SK (Article 1F(a) – exclusion) Zimbabwe [2010] UKUT 327 (IAC). 558 Rikhof be part of a civilian population,39 the same conclusion reached later by the Special Court of Sierra Leone40 while in Canada the same was said about people incarcerated in civilian prisons.41 In Belgium, one case provided guidance with respect to the meaning of ‘civilian population’ as an element of crimes against humanity in the context of Gaza. The case concerned a person involved in the training of several security forces of the Fatah organization in Gaza, which at the time, was involved in a power struggle with groups belonging to Hamas. The evidence showed that these security organizations were involved in a systematic manner in the torture and killing of persons who had no connection with Hamas, and as such, the victims could be considered ‘civilians’ as set out in the Rome Statute.42 With respect to the last international crime, aggression or crimes against peace, this is mentioned in general in both a UK43 and Dutch immigration manual (the latter with a prescient reference to United Nations General Assembly Resolution 3314, which has now become part of the crime of aggression in the ICC Statute).44 In Belgium the crime of aggression was leveled against a person who was one of five members of the Politburo of the ruling party in Somalia during the Barre government between 1969 and 1991. As such, he was involved in all important policy decisions of this regime. One of these decisions was the aggression against Ethiopia over the control of the Ogaden region in 1982, in which this person was involved while also being responsible specifically for the purchase of military material in preparation for this armed conflict. The tribunal relied on the Charter of the International Military Tribunal and its judgment in deciding that the prohibition against aggression had entered the realm of customary international law. As to the factual underpinnings of the

39 SZCWP v Minister for Immigr. & Multicultural & Indigenous Affairs [2006] FCAFC 9 (Austl.). 40 Judgment, Sesay, Kallon and Gbao (‘RUF’), (SCSL-04-15-T), Trial Chamber, 25 February 2009, §§ 87–88. 41 Carrasco v. Canada (Minister of Citizenship and Immigr.) (2008), FC 436; Liqokeli v. Canada (Minister of Citizenship and Immigr.) (2009), FC 530 (Ca.) 42 CCE No. 80 570, 2 May 2012. 43 Asylum Instruction on Exclusion: Article 1F of the Refugee Convention (30 May 2012), section 4.2 which also states that ‘a crime against peace has been defined as including planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances’ while also referring to Article 8(bis) of the Rome Statute of the International Criminal Court, A/Conf. 183/9. 44 Vreemdelingencirculaire 2000 (C), article C4/3.11.3.2 (this document was updated in 2012 and while there is still a reference to crimes against peace in article C2/6.2.8.1, it is more limited than before). International Criminal Law and Refugee Law 559 decision, the tribunal referred to the international condemnation of Somalia for initiating the war against Ethiopia.45 While the national decision maker did not make reference to the ICC Statute as this decision preceded the Kampala Review Conference, it is remarkable that all the parameters for this crime were not only in accordance with international law at the time of the decisions, but also with later understandings of the contours of this crime in international criminal law. In regard to specific or underlying crimes, which are part of war crimes and crimes against humanity, in most cases such crimes were not discussed as it was clear that the organizations under discussion had been involved in at least murder or torture. However, the Federal Court of Australia, Full Court, discussed the type of control required for the underlying crime of torture, as defined by the ICC Statute, and came to the conclusion that it has only to be factual, as opposed to legal, control. This represents a useful contribution to international criminal law which has not yet made any finding on this specific point.46 In the Netherlands, the Council of State was prescient in finding that causing terror could amount to a war crime47 without having the benefit of the ICTY jurisprudence48 although its reasoning could have been improved upon by explaining why an international humanitarian law norm could be transformed into an international crime with individual responsibility. In Germany the war crime of treacherous killing or wounding, was addressed in detail, again without assistance of international jurisprudence, as there was none. The situation involved a person who ‘had shot to death two people in Chechnya and taken a Russian officer prisoner to obtain through an exchange the release of his brother, who had been taken captive in a “cleanup” operation.’49 After a finding that the situation in Chechnya amounted to an internal armed conflict along the lines of the ICC Statute, the court then relied on ICTY and ICTR jurisprudence to opine that both civilians and combatants

45 CPRR No. 99–1280/W7769, 6 August 2002. 46 SZITR v Minister for Immigr. & Multicultural & Indigenous Affairs [2006] FCA 1759 (N.Z.) 47 AbRS 2 August 2004, nr. 200401637/1. 48 The Galić Trial Judgment (IT-98-29-T), Trial Chamber, 5 December 2003, §§ 133–138 had set out the basis of this crime in customary international law and its elements almost eight months before the decision of the Council of State. 49 Bundesverwaltungsgericht (Federal Administrative Court), BverwG 10 C 7.09, 10 February 2010 at paragraph 2. 560 Rikhof can commit war crimes.50 In order to hold a person liable for war crimes, a nexus had to be shown between the acts and the armed conflict, or, according to the court, ‘the existence of an armed conflict must be of material significance to the actor’s ability to commit the crime, his decision to commit the act, the manner in which it was committed, or the purpose of the act’. This was found to exist in the present case.51 The court then proceeded with a detailed examination of the contours of the war crime of killing or wounding treacherously, which is contained in the ICC Statute52 but has not received judicial consideration by the ICC as of yet,53 and indicated that in general ‘not every misleading of an adversary is prohibited, but rather only the exploitation of a confidence obtained under false pretences through specific acts contrary to international law’.54 Even in internal armed conflicts, where there is no obligation to wear a uniform, ‘combatants do not violate the prohibition on perfidy if they carry their arms openly during each military engagement, including during the preparation of attacks.’55 It comes to the conclusion that this crime might have been committed since:

carrying a concealed weapon might have deceived the Russian soldiers that they need expect no attack from the resistance fighter and the Complainant working with him, and that therefore they were not allowed to attack the two of them. The fact that the soldiers extended confidence to the Complainant and his companion could possibly be deduced from the fact that according to the Complainant, the soldiers had turned their backs as they were struck by the shots.56

As this finding and its underlying reasoning represents a good understanding of international humanitarian and criminal law, other decision makers, both at the national and international level when dealing with this specific crime

50 Ibidem at paragraphs 26–31. 51 Ibidem at paragraphs 32–33. 52 Articles 8.2(b)(xi) and 8.2(e)(ix). 53 Bundesverwaltungsgericht (Federal Administrative Court), BverwG 10 C 7.09, 10 February 2010 at paragraphs 37–41; however, since this judgment there has been some interpretation of these articles, see see ICC OTP, Situation in the Republic of Korea, Article 5 Report, June 2014, §§ 47–57 and 71–81. 54 Bundesverwaltungsgericht (Federal Administrative Court), BverwG 10 C 7.09, 10 February 2010 at paragraph 39. 55 Ibidem at paragraph 40. 56 Ibidem at paragraph 41. International Criminal Law and Refugee Law 561 might very well benefit from using this judgment in developing their own understanding of this war crime. Underlying crimes as part of crimes against humanity were also discussed in the UK with respect to a situation in Zimbabwe where a person had been involved in violent invasions of land owned by white farmers and in the violent expulsion of their black farm workers from their houses and jobs on those farms. The Court of Appeal provided parameters for the underlying crimes against humanity of inhumane acts and persecution.57 The court relied on academic commentary58 and especially gave great weight to the jurisprudence of the ICTY, the ICTR59 and the ICC60 regarding the meaning of these crimes. It then came to the conclusion that with respect to inhumane acts ‘the critical feature of the requirement of “similar character” is that “other inhumane acts” should be, by their nature and the gravity of their consequences, of comparable (“similar”) character to the other enumerated crimes’61 while ‘there is likely to be a strong affinity between the crimes of “other inhumane acts” and “persecution”’.62 Applying these legal tests and some of the examples used in the international jurisprudence the court was of the view that:

In sum, where the conduct in question is admitted by SK, involves direct participation in severe beatings and joint enterprise responsibility in the two farm invasions as a whole, where those farm invasions are described by the Upper Tribunal as brutal and terrifying, designed to force farmers and farm workers off the land on which they live by the use of violence and terror and the burning of their homes and the destruction of their livelihoods, and where this is done as part of a widespread and systematic attack on such farms for political and discriminatory aims such as can fairly be described as persecutory and as involving the forcible transfer of populations (whether or not amounting to those separate crimes), where the Upper Tribunal has found established to their satis- faction all the ingredients of “other inhumane acts” including the consequences of great suffering or serious injury, and the test is not the establishment of criminal guilt but the lower standard of “serious reasons

57 SK (Zimbabwe) v. Sec’y of State for the Home Dep’t, [2012] EWCA Civ. 807 (U.K.). 58 Id. at 49–50 (for inhumane acts and 66 for persecution). 59 Id. at 51–53, 56–57, 59–60 (for inhumane acts and 67–69 for persecution). 60 Id. at 53–55, 58 (for inhumane acts). 61 Id. at 61. 62 Id. at 69. 562 Rikhof

for considering”, in my judgment it has not been possible by the use of legal materials to show that the Upper Tribunal’s findings and conclusions are not open in law or ought to be rejected as insufficiently or improperly grounded.63

Similarly, an Australian tribunal was of view that the actions by the Saddam Hussein regime against the Kurds during the Anfal Campaign in Northern Iraq between 1986 and 1989, resulting in massive killing of the population, the repression of the uprising by Shi’a Moslems after the 1991 Gulf War, and the draining of the marshes and the driving out of the Marsh Arabs in Southern Iraq between 1991 and 1993, amounted to crimes against humanity. In respect to the latter event, it was said that the Iraqi Army was engaged in the drain- age of the marshes and, in doing so, forced the inhabitants out of the marshes resulting in the loss of their homeland.64 It can be concluded from the observations made above in regards to the relationship between international and national jurisprudence that the exclusion jurisprudence has not strayed very much at all from the international jurisprudence and as such has taken the reference to international instruments in exclusion 1F(a) seriously and accurately. At the domestic level the use of international instruments is widespread with some attention also being given to the most important jurisprudence coming out of the ICTY and ICTR. Where there has not been such jurisprudence, the domestic courts have applied their own reasoning to the characterization of underlying crimes in a manner that cannot be faulted. However, since a trend can be detected in the national jurisprudence where attention is being given to the less obvious specific crimes than murder, torture or rape, it will become necessary to go beyond the intuitive reasoning employed so far and utilize the international case-law, which have defined and circumscribed these crimes in great detail. Not only would the reasoning of the exclusion decision-makers become more persuasive it would also allow for a more consistent development of the overall national jurisprudence. There is one exception to this general pattern, namely the United States. The U.S. has neither ratified the Refugee Convention nor the ICC Statute. As a result, a number of relevant terms have been decided in a more autonomous fashion than elsewhere, either legislatively or jurisprudentially. While the

63 Id. at 86. 64 SAH and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 263. International Criminal Law and Refugee Law 563 terms genocide,65 extrajudicial killing,66 torture67 and child recruitment68 have been given meaning in the Immigration and Nationality Act (INA) the concept of persecution in the context of human rights violations has only been the subject of judicial interpretation.69 The United States regulates the granting of asylum in section 208 of the INA, which contains a number of exceptions (called mandatory bars to asylum).70 None of them uses the words genocide, war crime71 or crimes against humanity, or is based on the exclusion provision in the Refugee Convention dealing with such crimes. However, the exceptions used are of a type to ensure that claimants would not be granted asylum if they are found to have been involved in activities of that nature. The most frequently used provision in dealing with

65 Section 212(a)(3)(E)(ii) of the Immigration and Nationality Act; this section refers for the definition of “genocide” to section 1091(a) of Chapter 50A of title 18 of the U.S. Code where a description very similar to the one in articles I and II of the Genocide Convention can be found. 66 Section 212(a)(3)(E)(iii)(II) of the INA; for the definition of extrajudicial killing reference is made to section 3(a) of the Torture Victim Protection Act of 1991 (section 1350(3)(a) of Chapter 85 of Title 28 of the U.S. Code) which says this a ‘deliberate killing not authorized by a previous judgment pronounced by a regularly constitute court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation’. 67 Section 212(a)(3)(E)(iii)(I) of the INA; this section refers for the definition of torture to section 2340(1) of Chapter 113C of title 18 of the U.S. Code, which is almost identical to the description of torture in article 7.2(e) of the ICC Statute rather than the more limited definition in article 1.1 of the Torture Convention (which has been replicated in section 1350(3)(b) of Chapter 85 of Title 28 of the U.S. Code) while the U.S. definition has added its own definition in subsection 2340(2) for severe mental pain or suffering. 68 Section 212(a)(3)(G) of the INA. This was added on October 3, 2008 by virtue of the Child Soldiers Accountability Act of 2008; the definition of child recruitment, which can be found in the amended section 2442 of Chapter 118 of Title 18 of the U.S. Code is virtually identical to article 8.2(e)(vii) of the ICC Statute. 69 The concept of crimes against humanity has been described in non-immigration jurisprudence (without any reference to international criminal law) as ‘crimes against humanity include murder, enslavement, deportation or forcible transfer, torture, rape or other inhumane acts, committed as part of a widespread [or] systematic attack directed against a civilian population.” The Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009) (U.S.). 70 Section 208(b)(2)(A) of the INA. 71 The notion of war crime is known in U.S. law in general namely in section 2441 of Title 18 of the U.S. Code and which provides a definition which is consistent with contemporary international criminal law such as the statutes of the ICTY and the ICTR. 564 Rikhof human rights violators is one which disallows refugee protection for persons ‘ordering, inciting, assisting or otherwise participating in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion’.72 There is no difference in the U.S. jurisprudence between the notions of persecution,73 as faced by victims when applying for asylum or when used to connote the harm inflicted by perpetrators of human rights violations. Sometimes the Court of Appeals clarified the meaning of aspects of this definition in cases dealing with perpetrators, while in other cases they have relied on victim oriented cases to use the same parameters of persecution.74 According to general persecution case-law, the term persecution contemplates the infliction of suffering or harm, under government sanction, upon persons who differ from others in specified ways, namely race, religion, national origin, or political opinion. Persecution comes in many forms, mental as well as physical, and causing mental anguish, fear and humiliation are all indicia of persecution.75 The harm or suffering need not be physical, but may take other forms, such as the deliberate imposition of severe economic disadvantage, or the deprivation of liberty, food, housing, employment, or other essentials of life.76 It also includes detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture,77 as well as arrest and detention for selling books containing unfavour- able views.78 However, not every harmful act is persecutory; acts do not rise to the level of persecution when they consist of only a few isolated incidents of verbal harassment or intimidation.79

72 Section 208(b)(2)(A)(i) of the INA. 73 The U.S. uses a similar definition for persecution as contained in the Refugee Convention in section 101(a)(42) of the INA but specifically adds: ‘for purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well-founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well-founded fear of persecution on account of political opinion.’ 74 For a recent example of the latter, see, Gao v. U.S. Attorney General, 500 F.3d 93 (2d Cir. 2007). 75 United States v. Dailide, 227 F.3d 385 (6th Cir. 2000). 76 Abdel-Masieh v. INS, 73 F.3d 579 (5th Cir. 1996). 77 Manur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281 (2d Cir. 2007). 78 Gao v. U.S. Att’y. Gen., 500 F.3d 93 (2d Cir. 2007). 79 Sepulveda v. U.S. Att’y. Gen., 401 F.3d 1226 (11th Cir. 2005). International Criminal Law and Refugee Law 565

While persecution is only one crime out of eleven possible crimes against humanity (although the equivalent of all the other crimes against humanity have been incorporated into persecution if a discriminatory intent was present) the U.S. jurisprudence does not appear to be out of step in applying what would, in theory, be the narrower concept of persecution rather than using a larger number of crimes committed against a civilian population in a systematic or widespread fashion, the hallmarks of crimes against humanity. The situations in which persecution in the U.S. were held to be applicable were very similar to facts against which the other countries under consideration have used the concept of crimes against humanity in general as used in their legislation or jurisprudence.

4 Exclusion – Extended Liability

While the connection between ICL and refugee law in defining the international crimes has been a persistent and in-depth one, the situation with respect to extended liability is quite different. Although national decision makers were called upon to determine the circle of responsible perpetrators as early as when examining the crimes themselves, the parameters of accountability were often decided in a more autonomous fashion. This changed in 2010 when the highest courts in New Zealand and the UK canvassed in detail ICL concepts of liability in order to come to a workable definition of the term “committed” in exclusion 1F(a).80 The Supreme Court of Canada followed this approach in 2013. In the UK, the Court of Appeal had an opportunity to pronounce itself on the issue of complicity in the JS case.81 This case involved a member of the Liberation Tigers of Tamil Elam (LTTE) who, between 1997 and 2000, took part in various military operations against the Sri Lankan army. In 2000, while fighting as a platoon leader in charge of 45 soldiers trying to protect the LTTE’s sup-

80 For a discussion of all the tribunal and court decisions in this area, see, J. Rikhof, The Criminal Refugee: The Treatment of Asylum Seekers with a Criminal Background in International and Domestic Law, Dordrecht: Republic of Letters Publishers 210–263 (2012) and Exclusion Law and International Law: Sui Generis or Overlap? 20 International Journal on Minority and Group Rights (2013) at 206–218; see also in general J. Bond, Principled Exclusions: A Revised Approach to Article 1(F)(A) of the Refugee Convention, 35 Michigan Journal of International Law 2–57 (2013). James C. Simeon, The Application and Interpretation of International Humanitarian Law and International Criminal Law in the Exclusion of those Refugee Claimants who have Committed War Crimes and/or Crimes Against Humanity in Canada, 27 International Journal of Refugee Law 75–106 (2015). 81 JS (Sri Lanka) v. Sec’y of State for the Home Dep’t, [2009] EWCA Civ. 364 (U.K.). 566 Rikhof ply lines, he was injured and required medical treatment for six months. Upon his return, he became one of the chief security guards of the leader of the LTTE Intelligence Division, and served as the second-in-command of the Combat Unit at the Intelligence Division from 2004 to 2006.82 Since the main issue in this case revolved around the notion of complicity, the court canvassed in detail international materials on this issue, such as the ICC Statute, the jurisprudence of the ICTY,83 the Canadian Federal Court of Appeal case-law,84 as well as the jurisprudence of the Immigration Appeal Tribunal and UK courts in all areas of exclusion.85 The court came to the conclusion that there should be close link between the international law sources and exclusion under article 1F(a) and that priority should be given to all aspects of indirect liability as provided by the ICC Statute, including its concepts of command/superior liability, aiding and abetting, and common purpose. Where such notions have not completely crystallized in ICC caselaw, regard could be had to the ICTY jurisprudence, especially in respect to the development of joint criminal enterprise.86 With respect to membership in a brutal, limited purpose organization, the court was of the view that ‘a person who becomes an active member of an organisation devoted exclusively to the perpetration of criminal acts may be regarded as a person who has conspired with others to commit such acts and will be criminally responsible for any acts performed in pursuance of the conspiracy’.87 The court goes on to state: ‘active membership is considered to be present when there is the requisite proximity between the person and the crime or crimes in question which in the case of an active member of an organisation dedicated entirely to terrorist activities is unlikely to present any problem’.88 In conclusion with respect to the law to be applied, the Court says the following with respect to joint criminal enterprise liability:

1. there has to have been a common design which amounted to or involved the commission of a crime provided for in the statute; 2. the defendant must have participated in the furtherance of the joint criminal purpose in a way that made a significant contribution to the crime’s commission; and

82 Id. at paras 8–14. 83 Id. at paras 30–52. 84 Id. at paras 53–58. 85 Id. at paras 59–92. 86 Id. at paras 115–122. 87 Id. at para. 107. 88 Id. at para. 107. International Criminal Law and Refugee Law 567

3. that the participation must have been with the intention of furthering the perpetration of one of the crimes provided for in the statute.89

While indicating that the essence of complicity lies in ‘whether there are serious reasons to consider the asylum applicant to be guilty of an international crime or crimes applying those principles’,90 the court was of the view that the tribunal had not properly applied these principles of joint criminal enterprise to the case at hand.91 The Court of Appeal decision was appealed to the Supreme Court, which issued its unanimous judgment on March 17, 2010.92 Like the Court of Appeal, the Supreme Court was of the view that the main issue in this case was the notion of extended liability and canvassed a wide range of sources in this area including the ICC Statute, the ICTY jurisprudence, especially in regards to joint criminal enterprise, foreign jurisprudence (including Canadian, American and German) and the views of the UNHCR to determine the desirable parameters of this concept.93 Like the Court of Appeal, the Supreme Court was of the view that the starting point for assessing extended liability should be the ICC Statute.94 The court states, obiter dictum, that membership in a brutal organization by itself is not sufficient to result in complicity,95 but that the essential test for extended liability is “if there are serious reasons for considering him voluntarily to have contributed in a significant way to the organisation’s ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose.” The Court added that this overarching test can be accomplished by having regard to a number of factors:

89 Id. at para. 119 (In paragraph 120, referring to the common purpose article of the ICC Statue the court says: “the clause which may need the most unpacking is article 23(3)(d), dealing with joint criminal enterprise liability. In particular, the clause says nothing about the degree of contribution required or about the third category of joint criminal enterprise liability recognized in Tadić, that is, where a crime was committed as a foreseeable way of effecting a shared criminal intent and the defendant knowingly took the risk of this happening.”). 90 Id. at para. 120. 91 Id. at para. 123. 92 JS (Sri Lanka) v. Sec’y of State for the Home Dep’t, [2010] UKSC 15 (U.K.). 93 Id. at paras 9–24 (Lord Brown); id. at 42–43 (Lord Hope). 94 Id. at para. 47 (Lord Hope). 95 Id. at para. 2 (Lord Brown, indicating this was a common grounds among the parties while in paragraph 57 Lord Kerr says it was wise for the Secretary of State not to rely on this aspect of the Canadian jurisprudence; see also para. 49 (Lord Hope)). 568 Rikhof

Rather, however, than be deflected into first attempting some such sub- categorisation of the organisation, it is surely preferable to focus from the outset on what ultimately must prove to be the determining factors in any case, principally (in no particular order) (i) the nature and (potentially of some importance) the size of the organisation and particularly that part of it with which the asylum-seeker was himself most directly concerned, (ii) whether and, if so, by whom the organisation was proscribed, (iii) how the asylum-seeker came to be recruited, (iv) the length of time he remained in the organisation and what, if any, opportunities he had to leave it, (v) his position, rank, standing and influence in the organisation, (vi) his knowledge of the organisation’s war crimes activities, and (vii) his own personal involvement and role in the organisation including particularly whatever contribution he made towards the commission of war crimes.96

In the final analysis the Supreme Court was of the view that an approach utilizing membership as a head of liability was too broad for recognizing it as a type of complicity97 while the path taken by the Court of Appeal was too narrow by using domestic notions of liability in requiring participation in international crimes.98 The reasoning in the Supreme Court decision is not without its methodolog- ical problems. The court comes to the conclusion that the essence of liability for exclusion is ‘if there are serious reasons for considering him voluntarily to have contributed in a significant way to the organisation’s ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose’. While the analysis is couched in joint criminal enterprise language, the test for complicity suggested by the court, by excluding the element of common design, closely resembles the notion of aiding and abetting in international criminal law, especially since the court equates ‘significant’ with ‘substantial’. This means that either the court has provided an incomplete definition of joint criminal enterprise or has collapsed all aspects of complicity known in international criminal law into only one type, namely aiding and abetting. The result of the Supreme Court analysis in terms of the relationship

96 Id. at paras 30–31 ((Lord Brown) and paras 54–55 (Lord Kerr), although the latter points out that these factors are not exhaustive). 97 Id. at paras 44–46 (Lord Hope). 98 Id. at paras 26, 38 (Lord Brown) and 48 (Lord Hope) (this seemed to be based on the analysis of joint criminal enterprise I of low level participants (Lord Brown in paragraphs 19–20, as well as 37)). International Criminal Law and Refugee Law 569 between international criminal law and domestic criminal law for purposes of refugee law and in terms of laying down a test purporting to be a general test of complicity is that it might not have helped elucidate the parameters of complicity as much as it had hoped. As it is, it appears to only represent one type of extended liability. The New Zealand decision, X & Y v. Refugee Status Appeals Authority,99 involved the exclusion of a person who was the chief engineer of a ship, which was owned by the LTTE and which was sunk during a confrontation with the Indian Navy in January 1993. At the time, it was carrying several LTTE members and substantial quantities of arms and ammunition. The refugee tribunal found that the LTTE had committed crimes against humanity. In reaching that conclusion, it described ‘complicity’ as participating, assisting or contributing to the furtherance of a systematic and widespread attack against civilians, with knowledge that the acts will comprise part of such attacks or taking the risk that it will do so without the need for a specific event to be linked to the accomplice’s own acts.100 The Court of Appeal overturned this decision for a number of reasons in 2009.101 With respect to complicity, one judge of the court, Hammond J., was of the view that instead of the Canadian jurisprudence, the more recent case- law of the UK Court of Appeal102 should be followed resulting in a less generous acceptance of the notion of membership but instead a close linkage with international criminal law concepts of extended liability such as set out in the Rome Statute or as developed by the international tribunals in respect to joint criminal enterprise.103 Applying these principles, the court found that the combination of the unquantifiable risk that the cargo on the ship would be used unlawfully and the person’s presence on the ship could not result in a finding of complicity based on joint criminal enterprise.104 Another judge, Arnold J., was less equivocal of the lack of the importance of the Canadian jurisprudence in the area of complicity and when examining this jurisprudence in detail105 together with the recent UK court of appeal jurisprudence106

99 X & Y v. Refugee Status Appeals Auth. (2007) CIV-2006-404-4213 (HC) (N.Z.). 100 Id. at para. 81. 101 X v. Refugee Status Appeals Auth. [2009] NZCA 488 (N.Z.). 102 Discussed in the next section. 103 Id. at paras 95–107. 104 Id. at paras 109–112. 105 Id. at paras 152–155. 106 Id. at paras 156–168. 570 Rikhof he was of the view that membership could still be used as a form of complicity. However, he agreed in the result with Hammond J.107 The Supreme Court of New Zealand issued a decision on August 27, 2010 in which it made several relevant findings.108 In terms of sources of extended liability, the ICC Statute was found to be the most authoritative instrument to provide the various modes of liability in international criminal law,109 one of which is joint criminal enterprise, which was also the most appropriate one in the situation at hand.110 After canvassing in detail the concept of joint criminal enterprise and the Canadian and UK jurisprudence111 in the area of extended liability, the court came to the following conclusion:

Refugee status decision-makers should adopt the same approach to the application of joint enterprise liability principles when ascertaining if there are serious reasons to consider that a claimant seeking recognition of refugee status has committed a crime or an act within art 1F through being complicit in such crimes or acts perpetrated by others. That approach fully reflects the principle that those who contribute significantly to the commission of an international crime with the stipulated intention, although not direct perpetrators of it, are personally responsible for the crime. This principle is now expressed in arts 25 and 30 of the Rome Statute and was earlier well established in customary international law. Its application recognises the importance of domestic courts endeavouring to develop and maintain a common approach to the meaning of the language of an international instrument which is given effect as domestic law in numerous jurisdictions of state parties.112

107 Id. at paras 169–171. 108 The Att’y. Gen. (Minister of Immigr.) v Tamil X and the RSAA [2010] NZSC 107 (N.Z.); see, E. Watt, International Criminal Law and New Zealand Refugee Status Determinations: A Case Note on Attorney-General v Tamil X, 43 Victoria University Wellington Law Review 235–262 (2012) (N.Z.) (for a commentary on this case). 109 Id. at paras 51–54. 110 Id. at paras 56, 71 (referring to joint criminal enterprise III). 111 Id. at paras 51–69 (the court indicates in paragraphs 58–61 that the notion of shared purpose as used in the Canadian jurisprudence is in effect a reference to joint criminal enterprise while in paragraphs 66–69 the court discusses and agrees with the JS (Sri Lanka) v. Sec’y of State for the Home Dep’t, [2010] UKSC 15 (U.K.) decision, which has been discussed above. 112 Id. at para. 70. International Criminal Law and Refugee Law 571

Based on the facts of the case, the court comes to the conclusion that the claimant should not be excluded. While it was clear that he supported the LTTE in general and had done so in the past, the past activities did not reach the threshold of complicity while the activities underlying the case in question could not support an exclusionary finding, as the weapons on the ship never reached the LTTE for a possible criminal purpose. In the view of the court, while the conditions for a joint criminal enterprise were fulfilled,113 there could be no exclusion as joint criminal enterprise required a completed crime or in the words of the court, ‘had it been shown that he participated in voyages where armaments were delivered to the Tamil Tigers in Sri Lanka and subsequently that organization committed crimes against humanity, the position would be different.’114 In this context, the court finds that the words in article 25.3(d) of the ICC Statute ‘in any other way contributes’ still requires the commission of an offence; conspiracy cannot be read into this provision.115

113 Expressed by the court as follows in paragraph 71: “at all times he knew the vessel was transporting its cargo of armaments and munitions for use by the Tamil Tigers. By applying his expertise in a pivotal role for the voyage he was making a significant contribution to the Tamil Tigers’ activities. He knew of the crimes against humanity that were being committed by that organization and must have foreseen the likelihood that the arms, if delivered, would be used by the Tamil Tigers to commit future offences. His assistance, albeit in advance of operations, would further that purpose. It matters not on a test based on joint criminal enterprise principles that the actual cargo for the voyage might equally have been used only for legitimate purposes in military operations. The respondent took the risk that the armaments would be used to commit a crime against humanity. The Authority was entitled to hold that all this established the necessary elements of the respondent’s personal responsibility as part of a joint criminal enterprise under arts 25 and 30 of the Rome Statute.” Id. at para. 71. 114 Id. at para. 79. This approach whereby liability is not accepted in a situation where it is not clear that weapons did not reach the recipient or it is not clear that these weapons were used to commit international crimes is not unique. The same result was achieved in the criminal trial of Guus van Kouwenhoven in the Netherlands who had been involved in shipping weapons to Charles Taylor in Liberia. The trial court did not find him guilty of aiding and abetting in war crimes but only of circumventing United Nations sanctions, see, Rb, The Hague, Awb 09/750001-05, 28 July 2006; on appeal he was acquitted of all charges by the Court of Appeal, or Gerechtshof, Hof, Hague The Hague, 22-004337-06V, Mar. 10, 2008, but the Supreme Court of the Netherlands or Hoge Raad, overturned the decision of the Court of Appeal, HR, 08/01322, Apr. 4, 2010. 115 The Att’y. Gen. (Minister of Immigr.) v Tamil X and the RSAA [2010] NZSC 107, at para. 71–76 (there had already been agreement that the requirements of attempt as defined in the ICC Statute were not present on the fact of the case, paragraph 50) (N.Z.). 572 Rikhof

The Supreme Court of New Zealand was clearer in describing joint criminal enterprise than its counterpart in the UK by including the common intention element and restricting the general definition given in the UK judgment to the joint criminal enterprise concept. However, this judgment, is also not free from confusion, as it had stated earlier that the situation at hand pertained to a category III joint criminal enterprise fact pattern, but then uses the UK judgment and adopting its general definition even though that definition pertained to type I joint criminal enterprise. As well, it exhibits some confusion between the concepts of joint criminal enterprise and common purpose. In Canada, the Supreme Court made some adjustments to the well-known test of personal and knowing participation, which had been used by tribunals and courts since 1992.116 This overall test had a number of different manifestations, corresponding to four sub-categories of types of liability, namely membership in an organization with a limited, brutal purpose; aiding and abetting; responsibility for persons with a high rank; and shared criminal purpose.117 This last sub-category became the most popular in the courts after 2005 and was based on the application of seven factors to determine liability including the nature of the organization; the method of recruitment; position and rank obtained in an organization; the duration of association with the organization; age of the person; knowledge of atrocities committed by the organization; and the opportunity to disassociate from the organization.118 The case before the Supreme Court119 concerned a person who began his career with the government of the Democratic Republic of Congo (DRC) in January 1999. He was hired as a financial attaché at the Ministry of Finance and was assigned to the Ministry of Labour, Employment and Social Welfare in Kinshasa. He later worked as a financial adviser to the Ministry of Human Rights and the Ministry of Foreign Affairs and International Cooperation. In 2004, he was assigned to the Permanent Mission of the DRC to the United Nations (“UN”) in New York. In his role as second counsellor of the Mission, he represented the DRC at international meetings and UN entities includ-

116 See , J. Rikhof, The Criminal Refugee: The Treatment of Asylum Seekers with a Criminal Background in International and Domestic Law, Dordrect: Republic of Letters Publishers 218–220 (2012) (for a historical background for this adoption of this test); for the use of this test based on Canadian principles in other countries, see, for Australia, Id. at 211, 212; for Belgium, Id. at 214, 215; for the Netherlands, Id. at 233, 234; for New Zealand, Id. at 243, 244; for the U.K. Id. at 252. 117 Id. at 218, 219. 118 Id. at 226–229. 119 Ezokola v. Canada (Citizenship and Immigration), [2013] S.C.R. 40. International Criminal Law and Refugee Law 573 ing the UN Economic and Social Council. He also acted as a liaison between the Permanent Mission of the DRC and UN development agencies. In 2007, the appellant served as acting chargé d’affaires. In this capacity, he led the Permanent Mission of the DRC and spoke before the Security Council regarding natural resources and conflicts in the DRC. He worked at the Permanent Mission until January 2008 when he resigned and fled to Canada.120 He had been excluded as a result of his association with the government of the DRC, which during the time of his employment, had been involved in crimes against humanity. This exclusion was overturned by the first level court, the Federal Court, which was of the view that the existing jurisprudence required a nexus between a person and the crimes committed by an organization, which was not present in the situation at hand.121 On appeal, the decision of the Federal Court was overturned and the original exclusion decision restored while indicating that ‘a senior official may, by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes committed by this government, demonstrate “personal and knowing participation” in these crimes and be complicit with the government in their commission.’122 The analysis of the Supreme Court is very much based on ICL in the sense that the court makes an inquiry as to the broadest forms of extended liability both under the ICTY/ICTR and the ICC Statutes on the understanding that Canadian exclusion law should not go beyond these forms of liability in international law.123 As a result, the court examined the concepts of JCE124 and common purpose125 and came to the conclusion that, based on these forms

120 Id. at para. 11–13. 121 Ezokola v. Canada (Citizenship and Immigration), [2010] F.C. 662 at para. 70; in paragraphs 85–86 the court made reference to the Rome Statute of the International Criminal Court, A/CONF. 183/9, Art. 25, 28, 30 (1998); as well as the decision of the UK Supreme Court in JS (Sri Lanka) v. Sec’y of State for the Home Dep’t, [2010] UKSC 15, at paras 78–82 (although most of the analysis is based on Canadian jurisprudence). 122 Canada (Citizenship and Immigration) v. Ekanza Ezokola, [2011] F.C.A. 224 at para. 72; the Court of Appeal also makes reference to the Rome Statute of the International Criminal Court, (in paragraphs 64–67) and the case of JS (Sri Lanka) v. Sec’y of State for the Home Dep’t, [2010] UKSC 15 (in paragraph 68) and is of the view that the personal and knowing participation test is in accordance with the Rome Statute of the International Criminal Court, A/CONF. 183/9, Art. 25 (in paragraph 68). 123 Ezokola v. Canada (Citizenship and Immigration), [2013] S.C.R. 40 at paras 42–46. 124 Id. at paras 62–67 (specifically utilizing the Decision of the Confirmation of Charges, Prosecutor v. Callixte Mbarushimana, Pre-Trial Chamber 1, (Dec. 16, 2011). 125 Id. at paragraphs 54–61, relying specifically on Judgment, Tadić (IT-94-1-A), Appeals Chamber, 15 July 1999 and Judgment, Brđanin (IT-99-36-A), Appeals Chamber, 3 April 574 Rikhof of liability, a new overarching test of voluntary, significant and knowing contribution to the organization’s crime or criminal purpose126 should replace the previous ‘personal and knowing participation’ test as the latter had gone too far to include individuals based on mere association or passive acquiescence.127 Applying these overarching test, recourse can be had to a number of factors, for which the court found inspiration in the JS decision of the UK Supreme Court128 as well as the previous Canadian jurisprudence,129 which will also guard ‘against a complicity analysis that would exclude individuals from refugee protection on the basis of mere membership or failure to dissociate from a multifaceted organization which is committing war crimes.’130 In so far as this factor test would make exclusion possibly easier than a criminal conviction, this is justified as a result of the fact that refugee exclusion proceedings are of a different nature to criminal trials.131 The court also makes it clear that this overarching test represents the outer limits of extended liability but that other

2007. It is interesting to see that when discussing the notion of aiding and abetting in comparison with JCE in this context in paragraph 63, the court expresses the view that ‘while aiding and abetting likely requires a substantial contribution to a certain specific crime, joint criminal enterprise and common purpose liability can arise from a significant contribution to a criminal purpose. To the extent that the ICTY Trial Chamber may be seen to have applied a more exacting standard in Prosecutor v. Jovica Stanišić, IT-03-69-T, Judgment, 30 May 2013 (ICTY, Trial Chamber I), it is not in accordance with prevailing appellate authority’; in so far that the court is criticizing the specifically directed requirement for aiding and abetting, as set out at the ICTY Appeals Chamber Judgment, Perišić (IT-04-81-A), Appeals Chamber, 28 February 28, 2013, §§ 25–42 and 73, it foreshadows the same concerns as set out by the Sierra Leone Special Court in Judgment, Taylor (SCSL-04-01-T), Appeals Chamber, 26 September 2013, §§ 471–481 and 486, which were confirmed by the ICTY Appeals Chamber itself in a comprehensive and detailed decision in Judgment, Šainović et al. (IT-05-87-A), Appeals Chamber, 23 January 2014, §§ 1617–1651; however, in spite of this new direction, the ICTY Appeals Chamber refused to reopen the Perišić case, see Decision on Motion for Reconsideration, Perišić (IT-04-81-A), Appeals Chamber, 20 March 2014; for an academic comment on this development at the ICTY, see A. Coco and T. Gal, ‘Losing direction. The ICTY Appeals Camber’s Controversial Approach to Aiding and Abetting in Perišić’, 12 Journal of International Criminal Justice 345–366 (2014). 126 Ezokola v. Canada (Citizenship and Immigration), [2013] S.C.R. 40 at para. 84. 127 Id. at para. 85. 128 Id. at paras 70–72. 129 Id. at para. 73. 130 Id. at para. 74. 131 Id. at paras 37–40. International Criminal Law and Refugee Law 575 forms of liability, such as aiding and abetting and command responsibility, can still play a role in an exclusion determination.132 The factors, which can play a role, are slightly less stringent that the ones set out in the JS case by deleting the factor of the person’s own personal involvement and role in the organisation, but by instead building on the seven-factor approach of the previous Canadian jurisprudence and adding one new, crucial, factor, namely the person’s duties and activities within the organization. The complete list of factors is the following:

(i) the size and nature of the organization; (ii) the part of the organization with which the refugee claimant was most directly concerned; (iii) the refugee claimant’s duties and activities within the organization; (iv) the refugee claimant’s position or rank in the organization; (v) the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and (vi) the method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization.133

While the court has made it clear that membership of a brutal organization is no longer a form of liability for exclusion, the notion of a brutal, limited purpose organization has not been abandoned completely; it now is part of the first factor134 in that it would appear that belonging to such an organization could affect the importance and possibly the relevance of the other factors. In terms of assessing the decision in the context of ICL the court, like its counterparts in the UK and New Zealand, exhibits a good understanding of the ICL concepts of extended liability, especially JCE and common purpose. However, like the UK Supreme Court, when setting out the requirements for these forms of indirect involvement, it only discusses their actus reus aspects and again uses the mens rea of aiding and abetting, knowledge, rather than the

132 Id. at paras 41, 50, 97. 133 Id. at para. 94 (the details of each factor are described in paragraphs 94–99). 134 Id. at para. 95 (while the second factor appears to be new as well, in actuality, this ‘drilling down’ approach had already been used by the Federal Court since 2006, see, J. Rikhof, The Criminal Refugee: The Treatment of Asylum Seekers with a Criminal Background in International and Domestic Law, Dordrecht: Republic of Letters Publishers 227–228 (2012). 576 Rikhof intent to pursue a common plan, which are the hallmarks of both JCE135 and common purpose.136 As such, while the analysis is very helpful in formulating an overarching test for exclusion purposes, it would have been better from an ICL perspective to address all the elements of these two types of liability and then indicate that from a refugee perspective, not all these elements are essential,137 rather than ignore them completely. Such an approach would also have clarified why the court was of the view that JCE and common purpose are the broadest forms of extended liability, which is not the case, as they address different types of perpetrators rather than extending the circle of liability beyond, for instance, aiding and abetting.

135 Judgment, Tadić (IT-94-1-A), Appeals Chamber, 15 July 1999, § 227; Judgment, Vasiljević (IT-98-32-A), Appeals Chamber, 25 February 2004, § 100; Judgment, Stakić (IT-97-24-A), Appeals Chamber, 22 March 2006, § 64; Judgment, Hategekimana (ICTR-00-55B-T), Trial Chamber, 6 December 2010, § 649–650; Judgment, Gatete (ICTR-2000-61-T), Trial Chamber, 31 March 2011, §§ 577–579; Judgment, Gotovina et al. (IT-06-90-T), Trial Chamber, 15 April 2011, § 1950–1954; Judgment, Casimir Bizimungu et al. ( ICTR-99-50-T), Trial Chamber, 30 September 2011, §§ 1906–1909; Judgment, Ndahimana (ICTR-01-68), Trial Chamber, 30 December 2011, § 721; Judgment, Karemera et al. (ICTR-98-44-T), Trial Chamber, 2 February 2012, § 1436; Judgment, Nizeyimana (ICTR-2000-55C), Trial Chamber, 19 June 2012, §§ 1454–1456; Judgment, Taylor (SCSL-03-01-T), Trial Chamber, 18 May 2012, §§ 457–463; Judgment, Gatete (ICTR-2000-61-A), Appeals Chamber, 9 October 2012, §§ 239, 241; Judgment, Haradinaj et al. (IT-04-84bis-T), Trial Chamber, 29 November 2012, § 618–619; Judgment, Tolimir (IT-05-88/2-T), Trial Chamber, 12 December 2012, §§ 889– 890; Judgment, Ngirabatware (ICTR-99-54-T), Trial Chamber, 20 December 2012, § 1300; Judgment, Stanišić and Župljanin (IT-08-91-T), Trial Chamber, 27 March 2013, §§ 101–103; Judgment, Prlić et al. (IT-04-74), Trial Chamber, 29 May 2013, §§ 212–216; Judgment, Stanišić and Simatović (IT-03-69-T), Trial Chamber, 30 May 2013, § 1258, Judgment, Case 002/01 (Case File No. 002/19-09-2007/ECCC/TC), Trial Chamber, 7 August 2014, §§ 692–694; Judgment, Karemera (ICTR-98-44-A), Appeals Chamber, 29 September 2014, §§ 145–146. 136 Decision of the Confirmation of Charges, Mbarushimana (ICC-01/04-01/10), Pre-Trial Chamber I, 16 December 2011, § 271; Decision on the Confirmation of Charges, William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang (ICC-01/09-01/11), Pre-Trial Chamber II, 23 January 2012, §§ 353–354; Judgment, Katanga (ICC-01/04-01/07), Trial Chamber, March 7, 2014, §§ 1620–1642 137 The court made it clear that in crafting an extended liability test humanitarian goals of the Refugee Convention its need to be balanced against the integrity of international refugee protection while at the same time task of refugee decision makers, who are not concerned with making a finding of guilt, has to be kept in mind. See, Ezokola v. Canada (Citizenship and Immigration), [2013] S.C.R. 40 at 31–41. International Criminal Law and Refugee Law 577

5 Conclusion

The interaction between exclusion law and ICL has followed a different course in the area of crimes compared to that of extended liability and it is unlikely that this will change in the future. As indicated above, the national exclusion decision-makers have followed ICL quite closely when setting out the chapeau elements for war crimes and crimes against humanity. This connection was originally based on the language of the various statutes of the two ad-hoc international tribunals and the ICC followed by a more sophisticated reliance on the jurisprudence of these institutions, especially that of the ICTY. The use of these international instruments and jurisprudence presents an alternative picture in terms of the underlying crimes, where originally, exclusion was in most cases based on allegations of murder or torture. As the national decision-makers became more familiar with ICL, they started to pay attention to other international crimes as well and were quite willing to rely on international precedents. However, where such international jurisprudence was not readily available, they were equally willing to develop their own parameters for these crimes. It can be expected that these tribunals and decision makers will now utilize less well known underlying crimes as their familiarity with and confidence in ICL has grown. The area of extended liability has had yet another approach. Forms of liability were initially based on a combination of post-Second World War precedents, domestic criminal law, as well foreign refugee jurisprudence, which then developed into a sui generis approach, based in most countries, on the unique personal and knowing participation test. Only in the last few years has ICL become a source of inspiration to give the notion of accountability an international flavour as exhibited by judgments at the highest level in the UK, New Zealand and Canada. Relying on international jurisprudence, the courts in the UK and Canada developed the new test of voluntary, personal and significant contribution, accompanied by a factor approach. It can be expected that when lower level decision-makers in these countries or even in other countries apply either the overarching test or the factor approach, this brief foray into international criminal law will likely come to an end and they will utilize this new sui generis approach without delving further into international jurisprudence in this area.138

138 There are already tribunal and court decisions along those lines in the UK (see for instance AA (Art 1F(a) – complicity – Arts 7 and the Rome Statute of the International Criminal Court, A/CONF. 183/9, Art. 25) Iran [2011] UKUT 00339(IAC) and, Polat, R (On the Applica- tion of ) v. The Sec’y of State for the Home Dep’t, [2011] EWHC 3445, albeit the latter in the 1F(c) context, and in Canada since the Supreme Court judgments in those countries. chapter 27 African Languages in International Criminal Justice The International Criminal Tribunal for Rwanda and Beyond

Leigh Swigart

1 Introduction

In a 2013 lecture, renowned Kenyan author Ngugi wa Thiong’o, a long-time pro- moter of the expanded use of African languages and author of literary works in his native Kikuyu, bemoaned the absence of local languages in the justice systems of African countries.1 Ngugi pinpoints a challenge common to countries across the African continent. A 2010 UNESCO publication reports that only 63 African languages (out of an estimated 1,000–2,000 spoken on the continent) are used in justice systems, and only 26 countries allow African languages in legislation.2 With only an estimated 10–15% of the African populace fluent in official European languages,3 the potential for linguistic alienation in formal domains of law and justice is clear. Ngugi described the scene in a typical African court, where the applicable law is written in a European language and the officials of the court conduct proceedings in a European language. If the accused can speak only an African language, he or she will require an interpreter. ‘The defense, prosecution and the judge occupy a linguistic sphere totally removed from the person whose guilt or innocence is on the line . . . This was the way it was in the colonial era; this is the way it is in the postcolonial era.’4 When one transfers this scenario into the ‘higher order’ of international criminal courts and tribunals, the difficulties are compounded. The stakes

1 ‘The Language of Justice in Africa,’ lecture delivered by Ngugi wa Thiong’o on 16 September 2013 at the Taj Pamodzi Hotel, Lusaka, Zambia, available at http://pmrcblog.files.wordpress. com/2013/09/prof-ngugis-speech.pdf. 2 Why and How Africa Should Invest in African Languages and Multilingual Education: An Evidence- and Practice-Based Policy Advocacy Brief, UNESCO Institute for Lifelong Learning, 2010, available at http://unesdoc.unesco.org/images/0018/001886/188642e.pdf. 3 Ibid. 4 Supra note 11. Ngugi’s description clearly refers to Western-style judicial proceedings and not customary or religious ‘courts’ or dispute resolution processes. The latter are frequently used to resolve family and other disputes across Africa and the use of local languages in such contexts would be the norm.

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004271753_028 African Languages in International Criminal Justice 579 of the trials are very high: defendants are charged with crimes deemed the most serious by near universal agreement – namely war crimes, crimes against humanity and genocide – as expressed through various treaties and conventions. The official languages of the courts are those spoken in the world’s most powerful states, past and present. These are, not coincidentally, the same states that had previously imposed their control over large swathes of the globe through an imperial enterprise, or those that continue today to exert influence through less direct means, including foreign assistance. Persons participating in an international criminal justice procedure must either use a language of the court – with which they may have had limited educational or practical contact, if any at all – or communicate through an interpreter. Communication challenges are not, however, limited to the individuals participating in trials. International criminal courts and tribunals have important institutional mandates that reach beyond the determination of the guilt or innocence of an accused person. These mandates involve outreach to victims and communities affected by the crimes under examination and may extend to lofty aims, such as those of the International Criminal Tribunal for Rwanda (ICTR) to ‘contribute to the process of national reconciliation and to the restoration and maintenance of peace.’5 These mandates cannot be successfully pursued without meaningful contact with the victims and communities in question, contact that may be hindered by the absence of a shared language or even a common understanding of what might constitute justice in the wake of widespread violence and societal rupture. International courts and tribunals thus face the significant challenge of finding effective ways to educate victims and affected communities about their institutional aims and procedures, inform them of the outcome of trials, and contribute in at least some measure to societal healing. Questions about the role of language in international criminal courts and tribunals are particularly important given the prominence of Africa in their work over the past two decades. With the trials of the ICTR and the Special Court for Sierra Leone (SCSL) essentially finished, it is a good moment to take

5 SC Res. 955 (1994) on the establishment of the ICTR. See also Tim Gallimore, ‘The ICTR Outreach Program: Integrating Justice and Reconciliation,’ paper presented at the Conference on Challenging Impunity, Kigali, 2006, available at http://www.unictr.org/Portals/0/English/ News/events/Nov2006/gallimore.pdf.: ‘By prosecuting those who committed genocide and other serious violations against human rights, the ICTR intends to break the cycle of impunity by reestablishing the fundamental rule of law, under which the guilty are held accountable for their offences. It is expected that the outcome of these prosecutions will also promote national reconciliation and restore peace in Rwanda.’ 580 Swigart a step back and look at how these two institutions have dealt with the languages of their ‘constituents’. Furthermore, with the International Criminal Court (ICC) now into its second decade of operation, and with all of its current ‘situations’ in Africa, two critical questions emerge: 1) How is the ICC handling the enormous challenges posed by its necessary contact with multiple African languages, many of which are neither habitually written nor widespread by territory or function? And 2) how might the strategies it adopts to linguisti- cally accommodate the persons most closely connected with its proceedings enhance both access to its procedures and its legitimacy in the eyes of its constituents? This paper is based on ongoing research about the various roles played by African languages in institutions of international criminal justice, and the practices and policies that have been developed to respond to these roles. Through an initial set of interviews with judges, prosecutors, defense counsel, investigators, outreach officers, and language services specialists from the three courts mentioned above,6 along with an exploration of existing literature that touches on language use in these settings, the author attempts to draw a picture of how African languages fare in critical domains of international criminal justice. These domains include formal criminal investigations, courtroom proceedings, outreach to the regions where the international crimes have been committed, and communication with victims of these crimes. The aim of this paper is to sketch out some of the situations and challenges that emerge when African languages come into contact with institutions of international criminal justice, and to suggest some lessons that the ICC might take from the experiences of the ICTR and SCSL as it moves ahead.7

2 Breaking Ground: The International Criminal Tribunal for Rwanda

2.1 In the Beginning Any examination of how African languages fare in the sphere of international criminal justice must start with the ICTR. When the Tribunal was established

6 Approximately 20 individuals were interviewed during this phase of the project. In order to ensure their anonymity, the interviewees are referred to throughout this paper by function or title rather than name. All individuals spoke in their personal capacity, thus their comments and evaluations do not necessarily reflect the official views of their institutions. 7 For a description of language issues in international courts and tribunals more generally, see Daniel Terris, Cesare P. R. Romano, and Leigh Swigart, The International Judge: an Introduction to the Men and Women who Decide the World’s Cases (Lebanon, NH: University Press of New England; Oxford: Oxford University Press, 2007). African Languages in International Criminal Justice 581 to prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in 1994, the institution was confronted with numerous challenges of both a legal and practical nature. Like the International Criminal Tribunal for the former Yugoslavia (ICTY), the ICTR had to rapidly develop the rules and procedures that would regulate its operation at all levels. One challenge to be met was how to ensure that a largely non-Rwan- dan staff – working in the principal organs of the Office of the Prosecutor (OTP), Chambers, and Registry – could effectively communicate with Kinyarwanda- speaking accused persons and witnesses.8 Due process rights required that the accused be able to understand the charges against them and participate fully in the trial proceedings. At the same time, investigators had to carry out their work in the field and take statements from witnesses, usually in Kinyarwanda; OTP staff needed to construct a prosecutorial strategy based on translations of those statements; judges had to follow trial proceedings, during which an estimated 90% of witnesses testified in Kinyarwanda, through consecutive and later simultaneous interpreters;9 and the Registry had to undertake the training of these interpreters as well as check the translations of trial-related documents between the two official languages of the tribunal, French and English, and also those from Kinyarwanda into official languages.10 While such tasks might seem daunting, it should be understood that Rwanda is exceptional among African countries for the simplicity of its language situation. Not only is one local language, Kinyarwanda, spoken by almost the entire population, but more than half the population can read and write it as well, a very high literacy rate for an African language.11 Consequently, the ICTR was required to accommodate the speakers of a single language instead of the multiplicity of local languages that would have been found in almost any

8 The absence of Rwandan staff members characterized in particular the early years of the tribunal, when it was believed that their participation might introduce a bias into the proceedings. Over the years, more and more Rwandan nationals were hired across the ICTR staff with the exception of Chambers. Interview with a former ICTR Judge and President (27 March 2013). 9 Estimates of the percentage of Kinyarwanda-speaking witnesses are from the interview, ibid., and an interview with a defense counsel who represented accused persons at the ICTR, and later at the SCSL and ICC (16 April 2013). 10 Interview with an interpreter and translator in the ICTR Language Section (15 April 2013). 11 Figures are from the Fourth Population and Housing Census, conducted in 2012 by the National Institute of Statistics of Rwanda. The overall national literacy rate is 68%, with 49% literate in Kinyarwanda alone, and another 14% literate in Kinyarwanda and either French or English or both. 582 Swigart other African country.12 Kinyarwanda was able to become, as one interviewee phrased it, ‘a de facto working language of the tribunal’.13 The various legal instruments of the ICTR show its official stance on both the status of languages and the need for linguistic comprehension. Rule 3 of the ICTR Rules of Procedure and Evidence notes the following:

(A) The working languages of the Tribunal shall be English and French. (B) The accused shall have the right to use his own language. (C) Counsel for the accused may apply to a Judge or a Chamber for leave to use a language other than the two working ones or the language of the accused. If such leave is granted, the expenses of interpretation and translation shall be borne by the Tribunal to the extent, if any, determined by the President, taking into account the rights of the Defence and the interests of justice. (D) Any other person appearing before the Tribunal, who does not have sufficient knowledge of either of the two working languages, may use his own language. (E) The Registrar shall make any necessary arrangements for interpretation and translation of the working languages.14

Article 20 of the ICTR Statute establishes that the accused has the right:

4(a) To be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her; 4(f ) To have the free assistance of an interpreter if he or she cannot understand or speak the language used in the International Tribunal for Rwanda.15

It will be seen that the phrase ‘to be informed promptly and in detail in a language which he or she understands’ is a critical element in the rights of the accused and is subject to further refinement in the development of the ICC Rome Statute.

2.2 Before the Trials The need to address language issues in an international criminal court or tribunal starts long before a trial opens. Many interviewees for this project spoke

12 It was suggested that there might have been occasional testimony given in Swahili but this was not verified. 13 Interview, supra note 8. 14 Rule 3 ICTR RPE. 15 Art. 20 ICTRSt. African Languages in International Criminal Justice 583 at length about the efforts made by the ICTR Registry to codify Kinyarwanda terminology for important international criminal law concepts, for example ‘indictment’. Sometimes new terms were coined, and other times existing lexi- cal items were imbued with new meanings. An ICTR judge expressed admiration for the outcome, which ensured a consistent use of terminology across trials and witnesses.16 An interpreter from the Registry Language Services Section who helped develop this glossary explained that it was not a static product – it evolved over the years as translators and interpreters ran across terms that were hard to render into Kinyarwanda.17 An ICTR defense counsel observed that such a glossary might not, however, solve all the problems of conveying the meaning of a specialized legal term to people unfamiliar with the notion; ‘a concept like “burden of proof”,’ he said, ‘doesn’t need to be interpreted as much as explained.’18 The Language Section also took on the training of Kinyarwanda translators (for documents) and interpreters (for live speech). An interviewee explained that all official translations – for example of the documents that circulate between the parties to a case – had to be certified by the Language Section. As for interpretation, there was some ‘experimentation’ in how to do it in the early days of the tribunal. At first it was done consecutively, as opposed to simultaneously, sometimes using a chain of interpretation from Kinyarwanda to French to English and then back again; this process did not require specialized training but rather individuals who spoke two of the relevant languages well. Meanwhile, the tribunal sought out people with skills in languages, law and also international relations as potential simultaneous interpreters. They underwent an intensive in-house training over six to nine months to acquire the necessary skills, with continued training provided afterward. Most simultaneous interpreters worked either between English or French and Kinyarwanda, with only exceptional individuals able to work in all three target languages.19 The OTP and defense unit also required interpreters, which they hired independently of the Registry’s Language Section. Several interviewees had been employed as field interpreters, that is, language specialists who worked alongside investigators to take statements from victims and witnesses, almost always in Kinyarwanda. Since only English and French could be used for official trial documents, a convoluted linguistic procedure had to be followed to

16 Interview, supra note 8. 17 Interview, supra note 10. 18 Interview with former ICTR and ICTY defense counsel, currently a judge of the ICTY and ICC (18 April 2013). 19 Interview, supra note 10. 584 Swigart verify a witness statement. An OTP language assistant described how investigators would ask questions in either English or French, depending on their nationality or personal language skills. The field interpreter would translate the questions into Kinyarwanda, listen to the Kinyarwanda responses, and then translate them on the spot into English or French written notes. The investigator would subsequently compile a witness statement in English or French from these notes, which would be read back to the witness through a spontaneous Kinyarwanda translation. If the witness found the statement accurate, he or she would sign the European language version.20 One defense counsel from another region of Africa expressed regret that he had not learned Kinyarwanda himself, which would have greatly facilitated his work with witnesses.21 A former field interpreter reported that investigators who spoke other Bantu languages could, however, sometimes follow witness remarks in Kinyarwanda or at least recognize cognates.22 Several interviewees mentioned the difficulty of discussing sensitive topics with witnesses due to cultural rather than linguistic reasons. Asking women to relate the precise details of an act of sexual violence, for example, was particularly painful for Rwandan men acting as field interpreters, especially when, as one reported, ‘the victim was the age of my mother’.23 He went on to say that the victims themselves were often more comfortable with the process, perhaps because they had been asked to tell their stories so many times that they were no longer embarrassed. The OTP eventually hired women investigators and interpreters to work with victims of sexual violence. Cultural particularities were also obvious in the style that many Rwandan witnesses used when responding to investigator questions. Long and indirect answers to short and direct questions were frequent, and witnesses would also respond in, by Western standards, an imprecise manner to questions concerning time and distance. One interviewee related that Western investigators would sometimes become exasperated by the circuitousness of witness responses, exclaiming something like, ‘If I ask for your name, just give it!’ The question for an interpreter, he continued, was how much of the witness narrative to reproduce for an impatient investigator; sometimes decisions had to be

20 Interview with a language assistant in the OTP and former field interpreter for OTP investigators (8 April 2013). 21 Interview, supra note 9. 22 Interview, supra note 20. There are hundreds of languages in central, east and southern Africa belonging to the Bantu ‘family’, with varying degrees of mutual intelligibility. See https://www.princeton.edu/~achaney/tmve/wiki100k/docs/Bantu_languages.html. 23 Ibid. African Languages in International Criminal Justice 585 made about what to leave out. ICTR investigators from countries like Senegal, Mali and Côte d’Ivoire were familiar with such narrative patterns, however, and tended to take them in stride.24

2.3 Reaching Out to the Affected Community Outreach to the Rwandan population was also an activity for which communication in Kinyarwanda was critical. A major accomplishment for the ICTR Outreach Program was the establishment of the Umusanzu mu Bwiyunge25 Information and Documentation Centre in Kigali in 2000, with a number of branches subsequently created around the country. The goal of the Centre was to inform the local population about the aims of the Tribunal and help them keep abreast of judgments. An ICTR Outreach Officer described the overall program this way in 2006:

The ICTR Outreach Program includes a series of pro-active projects, complementary to the main institutional communications of the Tribunal. Particular attention is given to mass media and interpersonal communication in order to convey efficient and persuasive messages to targeted audiences inside and outside Rwanda. The Outreach Program makes available information about the Tribunal in Kinyarwanda using printed materials, radio broadcasts and speakers. Targeted visits to the ICTR by Rwandan and other audience groups are organized in order to improve the understanding and perception of the work of the Tribunal. Apart from informing the public about its work, the Tribunal’s Outreach Program also delivers training sessions and professional workshops to strengthen the judicial system in Rwanda.26

Despite the ambitiousness of the activities described above, it has been noted that the outreach program of the ICTR was ‘quite anemic . . . and arrived late in process’.27 Perhaps the most effective outreach would have consisted of live broadcasts of ICTR trials so that the Rwandan population could follow the proceedings regularly. OTP officials suggested in the early days of the tribunal that trials

24 Ibid. 25 “Contribution to reconciliation” in Kinyarwanda. 26 Gallimore, supra note 5. 27 Stuart Ford, ‘How Special Is the Special Court’s Outreach Section?’ In Charles Chernor Jalloh (ed.) The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law (Cambridge: Cambridge University Press, 2014), at 505–526. 586 Swigart be screened in sports stadiums, and they believed that funding could have been found for such an undertaking. The Rwandan government did not support this outreach strategy, however.28 In later years, the Outreach Program collaborated with the NGO Internews to create videos of the highlights of ICTR trial proceedings and judgments that were subsequently screened around the country and followed by discussion sessions in Kinyarwanda.29 The ICTR also created and maintained a website with information about all aspects of the institution and its work, with sections in both official languages as well as Kinyarwanda.30 A quick perusal of the site quickly shows, however, that the English section is by far the most detailed and complete. While most judgments and other official documents are available in French, there are still a number of links that return to documents in their original English versions. The Kinyarwanda section appears to be essentially symbolic, with limited material available in that language at all and most links leading back to the English language site. Several interviewees attributed the incomplete offerings on the French and Kinyarwanda sites to a lack of resources31 and the fact that such translation was considered a ‘low urgency task’ compared to the translation of documents needed for trials.32

2.4 In the Courtroom The challenges associated with the use of African languages in international justice processes are perhaps most apparent in the courtroom. As noted before, most of the witness testimony during ICTR trials was given in Kinyarwanda. Accused persons, on the other hand, who generally came from the Rwandan elite and thus were educated and francophone, often preferred to testify in French. But some accused chose to testify in Kinyarwanda as well, perhaps because they felt most comfortable or articulate in their native language. In the early years, when courtroom interpretation was still consecutive, this choice might even have been strategic, the delay necessary for interpretation from one language to another giving the accused that much more time to consider his response to a question.33

28 Interview with former Chief Prosecutor of the ICTY and ICTR (11 March 2013). 29 The archive of these films can be accessed at: https://web.archive.org/web/2006021216 2405/http://www.internews.org.rw/video.htm. 30 See http://www.unictr.org/. 31 Interview with Language Assistant in the OTP (9 April 2013), and interview, supra note 8. 32 Interview, supra note 10. 33 This strategy was identified by an interviewee who, during his early years of legal practice, used to recommend that his clients speak local languages in the courtrooms of his native country for this reason. Interview, supra note 28. African Languages in International Criminal Justice 587

Interpretation in any multilingual court of law may be imperfect but it is clearly indispensable; even theorists of simultaneous interpretation, which was used for the first time during the Nuremberg trials, have called it ‘a necessary evil’.34 Some of the challenges faced by the ICTR in providing the best possible interpretation system during its trials have already been mentioned, namely the absence of both trained interpreters and familiar terms in Kinyarwanda to denote concepts in international criminal law. Even after these challenges were addressed through training and glossary development, however, persons closely involved in ICTR trials as well as observers remained critical of the ambiguities and inaccuracies that continued to raise questions about the proceedings. As Nancy A. Combs has written about international criminal proceedings in non-Western settings, ‘cultural divergences between witnesses and courtroom personnel, along with linguistic and conceptual divergences, mag- nify the distortion wrought by language interpretation.’35 The first case at the ICTR, The Prosecutor v. Jean-Paul Akayesu,36 involved the prosecution of the mayor of Taba on charges relating to genocide, crimes against humanity and violations of Article 3 common to the Geneva Conventions. The case is widely known for handing down the first conviction for genocide in an international court and furthermore establishing that rape can constitute an act of genocide. The Akayesu judgment openly recognized and referred to the difficulties raised by the mix of languages and cultural practices that came together in the courtroom:

The majority of the witnesses in this trial testified in Kinyarwanda. The Chamber notes that the interpretation of oral testimony of witnesses from Kinyarwanda into one of the official languages of the Tribunal has been a particularly great challenge due to the fact that the syntax and everyday modes of expression in the Kinyarwanda language are complex and difficult to translate into French or English.37

34 Cited in Ruth Morris, ‘Justice in Four languages or “Interpreters and Mistresses”,’ review of The Origins of Simultaneous Interpretation: The Nuremberg Trial by Francesca Gaiba, 1998, International Association of Conference Interpreters, December 1999 (1), available at http://aiic.net/page/238/justice-in-four-languages-or-interpreters-and-mistresses/lang/1. 35 Nancy A. Combs, Fact-Finding without Facts: the Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge: Cambridge University Press, 2010), at 68. 36 Akayesu (ICTR-96-4-T). 37 Judgment, Akayesu (ICTR-96-4-T), 2 September 1998, para. 145. 588 Swigart

Another section of the Akayesu judgment reads:

According to the testimony of Dr. Ruzindana,38 it is a particular feature of the Rwandan culture that people are not always direct in answering questions, especially if the question is delicate. In such cases, the answers given will very often have to be ‘decoded’ in order to be understood correctly. This interpretation will rely on the contact, the particular speech community, the identity of and the relation between the orator and the listener, and the subject matter of the question. The Chamber noted this in the proceedings.39

Testimony about rape ended up being particularly problematic during testimony. Witnesses and victims used a number of different Kinyarwanda words and phrases to refer to sexual relations and sexual violence,40 partly because of cultural taboos surrounding the topic. The Akayesu judgment notes,

[t]he word gusambanya means ‘to bring (a person) to commit adultery or fornication’. The word kurungora means ‘to have sexual intercourse with a woman’. This term is used regardless of whether the woman is married or not, and regardless of whether she gives consent or not. The word kuryamana means ‘to share a bed’ or ‘to have sexual intercourse’, depending on the context. It seems similar to the colloquial usage in English and in French of the term ‘to sleep with’. The term gufata ku ngufu means ‘to take (anything) by force’ and also ‘to rape’.41

The variety and ambiguity of terms used by witnesses to signify the act of rape raised a problem for international criminal law procedure, which requires that specific criteria be met in order for the charge of a particular crime to be satisfied. Combs has described this conundrum in her scholarly work on how fact- finding happens in international criminal tribunals.

Kinyarwanda has no one certain word for ‘rape,’ and victims will frequently use phrases that might be considered euphemisms to Western ears but that clearly signify rape to Rwandans. Tribunal prosecutors, seeking to make out their best case, cannot be satisfied with euphemisms,

38 Dr. Mathias Ruzindana was an expert witness on linguistics in the trial. 39 Judgment, supra note 37, para. 156. 40 Ibid. paras 152–154. 41 Ibid. para. 152. African Languages in International Criminal Justice 589

though, so they typically require witnesses to describe their rapes in more graphic detail.42

An OTP language assistant spoke of working with witness statement transcripts that showed that victims had been pushed hard by investigators to provide details about their rapes, sometimes needing to be asked repeatedly, or in subsequent interviews, before they supplied the required information.43 Combs observes, ‘a Western victim’s credibility would be in shreds if she failed to mention that she had been raped until a late stage of the investigation,’ but these omissions were not considered problematic, as seen in ICTR judgments.44 Such witnesses would be left, of course, open to harsh cross-examination by the defense about why the act of rape was not mentioned in the first place. Linguistic and cultural particularities in the courtroom were not confined to testimony about sexual violence, of course. Some cases were themselves centered on the way in which accused persons allegedly used language in a culturally encoded manner to promote or incite genocide. An important element in The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze45 – also known as the Media case – was the role played by particular Kinyarwanda terminology and its local understanding in the incitement of genocide. The prosecution argued that the use of certain terms in radio broadcasts and in the written press – like inyenzi (‘cockroach’) to denote the Tutsi and gukora (‘to work’), alleged to signify in this context ‘to kill’ – served to desensitize the Hutu population and incite them to murder the Tutsi population in 1994. In The Prosecutor v. Simon Bikindi,46 the accused, a well-known Rwandan singer, was alleged to have used his musical compositions and public speeches to incite and promoted hatred and violence against the Tutsi. In The Prosecutor v. Tharcisse Muvunyi,47 it was alleged that the accused used Kinyarwanda proverbs – for example, ‘If a snake rounded itself on a calabash you can’t kill it without breaking the calabash itself ’ – to direct Hutus to exter- minate any remaining Tutsis in their area.48 Courtroom testimony during these cases saw various linguistic and sociolinguistic experts called to the witness

42 Combs, supra note 35, at 87. 43 Interview, supra note 31. 44 Combs, supra note 35, at 87. 45 Judgment, Nahimana et.al. (ICTR-99-52-A), 3 December 2003. 46 Judgment, Bikindi (ICTR-01-72-T), 2 December 2008. 47 Judgment, Muvunyi (ICTR-00-55A-T), 11 February 2010. 48 See ‘ICTR/Muvunyi – Ex-Officer Allegedly Used Ethnic Proverbs to Incite Tutsi Killings in 1994,’ Hirondelle News, 17 June 2009, available at http://www.hirondellenews.com/ ictr-rwanda/348-trials-ended/muvunyi-tharcisse/23303-en-en-170609-ictrmuvunyi- ex-officer-allegedly-used-ethnic-proverbs-to-incite-tutsi-killings-in-19941235412354. 590 Swigart stand to explain how certain usages were understood by the Rwandan public and why they were so powerful. The trial chamber judgment in Bikindi notes, for example, ‘Prosecution Expert Karangwa testified that Bikindi’s songs were couched in poetic language, referring to the realm of the spoken and unspoken in Kinyarwanda.’49 Another common problem in ICTR witness testimony, potentially associated with the multilingual character of the trials, was inconsistency. A former OTP field interpreter noted that, while the OTP had done a good job overall in its language services, there were always problems that remained. ‘Sometimes a statement taken before trial in the field from a witness – which is verified and signed – is then rejected in the courtroom by that same witness, who might attribute the disparity to bad translation.’ However, he continued, the reality might be that the witness had simply forgotten what he or she said before, given the lapse of time. He also suspected that witnesses sometimes heard what others had testified and consequently changed their stories.50 In his research on the ICTR, anthropologist Nigel Eltringham has documented both of these phenomena, that is, alteration in witness testimony over time and the ‘co-produced redescription’ of events as experienced by individual witnesses.51 ICTR defense counsel Beth Lyons has suggested that the tribunal practice of housing protected Prosecution witnesses together in Arusha might have contributed to the latter:

. . . logically, it is more than likely that at least some information is exchanged while these witnesses are waiting to give their testimony, especially since this may be the first time the witness is outside Rwanda and away from family and friends. At a minimum, this living situation is not optimal for preserving each witness’s separate memory of events, as opposed to a ‘composite’ one that may be based on both the witness’s observation as well as those of friends or acquaintances.52

49 Bikindi, supra note 46, para. 197. 50 Interview, supra note 20. 51 Nigel Eltringham, ‘ “Illuminating the Broader Context”: Anthropological and Historical Knowledge at the International Criminal Tribunal for Rwanda,’ 19(2) Journal of the Royal Anthropological Institute (2013) 338–355, at 348. 52 Beth S. Lyons, ‘Enough is Enough: the Illegitimacy of International Criminal Convictions: a review essay of Fact-Finding Without Facts, the Uncertain Evidentiary Foundations of International Criminal Convictions by Nancy Amoury Combs,’ 13(3) Journal of Genocide Research (2011), 287–312, at 290. African Languages in International Criminal Justice 591

Finally, there is the problem of simple inaccuracy in interpretation. Lyons writes of her experiences during several ICTR trials:

Not only are judges at the mercy of the interpreters, but almost everyone else in the courtroom is as well. At the ICTR, it is routine and too frequent that one of the Kinyarwanda speaking defence team members or the client has to correct the interpretation in the record during the proceedings. The court reports, on whose written transcripts the judgments are based, obviously play a crucial role in the preservation of the accuracy of the proceedings.53

Other defense counsel remembered the same act of correction by their clients, although one added that prosecution teams would also intervene sometimes to correct the record.54 A judge remembered in particular that defendant Ferdinand Nahimana, a former university professor, would sometimes object to what he considered an inaccurate translation.55 When such interventions were made in the courtroom, the issue would be resolved immediately and the correction would go into the official transcript of the proceeding, in French and English. The linguistic and cultural issues that arose in the ICTR courtroom are particularly significant because of one central truth – none of the ‘fact-finders’, that is the judges, have been of the same nationality as the persons on trial. Consequently they have had neither the linguistic nor cultural knowledge normally available to judges who adjudicate criminal cases in their home countries.56 The result is that expert witnesses on issues of language, culture, and history became important contributors to the judges’ understanding of certain issues during ICTR trials. Eltringham captures the recognition of the role of expert witnesses in this statement by an ICTR judge: ‘We need experts because we don’t belong to the community. At home, experts are only technical, but here, we need assistance. An expert explains what Kinyarwanda terms mean. We would not need that if we were Rwandan judges.’57 However, Eltringham also found that ICTR judges who had served for years felt that they

53 Ibid. at 289. 54 Interviews, supra note 9 and note 18. 55 Interview, supra note 8. 56 Eltringham notes that not only have no Rwandans appeared on a list of candidates for the ICTR bench, but also no candidates from countries ‘implicated’ in the Rwandan situation, that is Belgium, France, the United Kingdom and the United States. Supra note 51, at 350. 57 Ibid. at 350. 592 Swigart had accumulated a large store of knowledge about Rwandan language and culture and that the testimony of expert witnesses had a diminishing value.58 A former ICTR judge interviewed for this project related that there also developed over time an informal ‘in-house transfer of knowledge’ about the particularities of witness testimony. From sitting in hearings day in and day out, this judge had learned how to ask questions of witnesses in such a way as ‘to elicit the desired information in the end’. For example, since Rwandans in the post-genocide era were no longer allowed to identify themselves by ethnicity, he learned to ask witnesses instead what ethnic group their ID cards indicated at the time of the genocide. Strategies like this were passed on to newer members of the bench so that they could function more efficiently in the courtroom.59

2.5 The Legacy of ICTR Language Practices The foregoing description of language issues at the ICTR shows both the attempts made by the ICTR to work with Kinyarwanda speakers and the sociolinguistic challenges that emerged in the course of this multifaceted justice operation. The challenges were many and varied: the absence of Kinyarwanda terminology for critical legal terms; the need to identify and train skilled interpreters; the mismatch between statements taken from witnesses in the field and their later testimony in the courtroom, whether due to the loss of accuracy that results from multiple ‘retranslations’ or problems of witness recollec- tion; cultural taboos and indirect speech patterns on the part of witnesses that clouded the clear picture of events required to attribute guilt under international criminal law; inaccurate interpretation in the courtroom and the questions this raised about the official record; and finally the basic lack of linguistic and cultural knowledge possessed by the fact-finders themselves. How, then, might one begin to evaluate the legacy of the ICTR’s pioneering work in both accommodating and getting what is needed from speakers of an African language during international criminal justice proceedings? How effective were ICTR attempts to educate and communicate with the Kinyarwanda-speaking community? What were its successes in these areas and what might it have done better? Is it possible to determine what other international criminal courts that interact with speakers of African languages have been able to draw from the ICTR’s experiences as they developed their own policies and procedures?

58 Ibid. at 351. 59 Interview, supra note 8. African Languages in International Criminal Justice 593

Although it might be too early to find definitive answers to these questions, the viewpoint of Rwandans who have been employed by the Tribunal as translators and interpreters is telling. While clearly believers in the value of the ICTR’s work, the language experts interviewed for this project were critical of what they felt was the insufficient attention paid to Kinyarwanda and its potential to contribute to national reconciliation and the rule of law in Rwanda. These interviewees regretted that the Tribunal had not directed adequate resources toward the translation of all ICTR judgments and other materials into Kinyarwanda. Given that literacy in Kinyarwanda is relatively high, and that the language furthermore plays a central role in the Rwandan administration, including the judiciary, this was seen as an enormous oversight and one that contradicts the Tribunal’s declared aim of informing the Rwandan population about its achievements.

The big work has not yet been done. Judgments are rarely translated into Kinyarwanda. Instead, on the day of a judgment, there is local press that summarizes the judgment and this is then put in the local newspapers and on the radio. But this is not enough if there is to be any reconciliation in Rwanda. This is not enough to ensure the tribunal’s legacy. Domestic courts cannot cite the jurisprudence of the ICTR effectively because it is not available in Kinyarwanda.60

This interviewee may be overstating the problem; in fact, domestic courts in Rwanda do not exclusively operate in Kinyarwanda but also make use of the nation’s other two official languages, English and French.61 ICTR judgments are thus not entirely inaccessible to Rwandan lawyers and judges. He also seems to ignore the fact that the thousands of genocide-related trials carried out in the national courts of Rwanda resulted in Kinyarwanda language judgments, which, some might argue, are locally produced and consequently better records of what transpired in the country in 1994. However, this sense of disappointment in the ICTR’s lukewarm efforts to provide materials in Kinyarwanda for the benefit of the Rwandan people was expressed by other interviewees as well. ‘Most of the materials are in English, a little bit less in French, very few in Kinyarwanda,’ explained a second language expert. ‘Donors complain that the Tribunal is costly, so they say they cannot afford translation.’62

60 Interview, supra note 20. 61 Written communication with a Rwandan lawyer and educator, 2 July 2014. 62 Interview, supra note 31. 594 Swigart

A third interviewee described the imbalanced allocation of resources across the ICTR, which he felt had undermined the overall success of the institution. He furthermore laid out the ICTR experience as a cautionary tale for other international courts and tribunals:

The ICTR has lost the chance to make a big impact by not following through on translation and dissemination in Kinyarwanda. The important thing is the willingness of an institution to invest in language experts. International courts pay to fly witnesses in to testify, and pay the fees of international lawyers. But it is hard to get them to pay for the accuracy of language. Languages are the poor relatives that no one wants to spend money on.63

With all of its trials completed and only some appeals procedures ongoing as of this writing, the ICTR has now moved into its ‘residual’ phase. Along with its sister tribunal, the ICTY, the ICTR is now part of the Mechanism for International Criminal Tribunals (MICT).64 The MICT website provides information in both tribunals’ official languages, English and French, as well as in Kinyarwanda and Bosnian/Croatian/Serbian, the primary languages used by accused persons and witnesses during ICTY proceedings. The Kinyarwanda section of the MICT website already appears more complete than that of the ICTR website, with fewer links back to English documents and pages.65 It will be interesting to follow the MICT in the years to come and see if and how it continues to accommodate its Kinyarwanda-speaking constituents, despite the cessation of formal outreach activities. More generally, the passage of time

63 Interview, supra note 10. 64 According to its website, ‘[The MICT] was established by the United Nations Security Council on 22 December 2010 to carry out a number of essential functions of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) after the completion of their respective mandates. The establishment of the Mechanism is a key step of the Completion Strategies of the two Tribunals. It is a new small, temporary and efficient body, tasked with continuing the “jurisdiction, rights and obligations and essential functions” (UNSC Resolution 1966) of the ICTR and the ICTY; and maintaining the legacy of both institutions.’ See http:// unmict.org/. 65 However, an exploration of the MICT site’s link to the ICTY/ICTR Case Law Database, which ‘contains extracts of judgements and decisions rendered by the Appeals Chamber of the ICTY since 1997 and by the Appeals Chamber of the ICTR since 2004,’ shows that it is currently only available in English. See http://unmict.org/cld.html. African Languages in International Criminal Justice 595 is clearly required to measure the impact of the ICTR’s work on Rwandan society and the level of legitimacy it ultimately attains.

3 The Experiences of a Hybrid Court: The Special Court for Sierra Leone

3.1 Different Conditions, Similar Problems The SCSL was set up in 2002 to try those bearing the greatest responsibility for serious crimes against civilians and UN peacekeepers committed during Sierra Leone’s civil war between 1991 and 2002.66 A brief description of the language situation at the SCSL will show that the Court faced many of the same challenges as the ICTR in accommodating persons whose primary mode of communication was an African language. There was, however, a significant difference in how the two institutions were staffed, a difference that served to alleviate some communication problems at the SCSL, especially in the courtroom. The SCSL was a ‘hybrid’ court, with Sierra Leonean judges and personnel working alongside their international counterparts. This meant that local language speakers and culture bearers were active participants in all facets of the Court’s work. At the same time, the SCSL had to operate in a more complex multilingual context. Unlike the ICTR, which could concentrate its energies on Kinyarwanda alone, the SCSL needed to provide translation and interpretation between the official language of the court, English, and a number of Sierra Leonean languages. These included Krio, a creole language that serves as the national lin- gua franca, as well as the other three widely spoken languages, Mende, Temne, and Limba. These languages occupy a different status in their society than that of Kinyarwanda in Rwanda; they have a limited role in the formal education system, are not a usual medium of written communication, and do not play a role in administrative domains. They are, nonetheless, dynamic modes of oral communication, their level of importance in this sphere perhaps bolstered by the low rate of literacy found in Sierra Leone.67 According to an SCSL judge interviewed for this project, those standing trial came from across the spectrum

66 See http://www.rscsl.org/. 67 Different sources provide a range of literacy rates for Sierra Leone, but they tend to fall somewhere between 35% and 45%. Although English, Mende, Temne and Arabic are all indicated as languages of literacy, the author could find no further breakdown on literacy according to specific language. See https://www.cia.gov/library/publications/ the-world-factbook/geos/sl.html. 596 Swigart of national language and culture groups. ‘The war in Sierra Leone represented a breakdown of law and order, and every ethnic group was involved.’68 A look at the SCSL Statute shows the same concern as that of the ICTR to guarantee the linguistic rights of the accused while still privileging a European language with official status:

Article 17(4) In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality: a. To be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her. f. To have the free assistance of an interpreter if he or she cannot understand or speak the language used in the Special Court.

Article 24 The working language of the Special Court shall be English.69

An interview with members of the SCSL Registry and the Office of Outreach and Public Affairs provided a picture of how the Court ensured communication between speakers of English and African languages.70 It was reported that most of the witnesses were ‘ordinary people’ who did not speak English; even those who spoke English often preferred to testify in Krio or another Sierra Leonean language. Their testimony thus needed to be interpreted for the official court record, kept in English. After the Court was established in 2002, the Court Management Office identified potential interpreters and then trained them rigorously for work in the courtroom. Some had already worked as interpreters in the domestic courts of Sierra Leone, which also use English as an official language. As at the ICTR, interpretation between local and official languages began as a consecutive process and became simultaneous only when interpreters acquired the necessary skills.71 Also similar to the ICTR was the Special Court’s development of a standard vocabulary in various Sierra Leonean languages for international criminal law terminology. A former SCSL Prosecutor identified some of the concepts

68 Interview with a Judge and former President of the SCSL (28 March 2013). 69 Art. 17(4) SCSLSt, Art. 24, SCSLSt. 70 Joint interview with three members of the SCSL Registry and Office of Outreach and Public Affairs (5 April 2013). 71 Ibid. African Languages in International Criminal Justice 597 whose precise meanings needed to be conveyed to non-English speakers during investigations and trials; these included ‘widespread’, ‘systematic’, ‘rape’, ‘pillage’, ‘murder’, ‘surrender’, ‘protected person’, and ‘war crime’. He explained:

When there are no words for particular legal concepts, one has to be very cautious. If certain terms are not understood by the witness or accused, it is a challenge to international criminal justice. The prosecution has to demonstrate that the elements of the crime in question are there. The record may not end up being correct, and a faulty record is a potentially appealable record.72

3.2 The Centrality of Outreach In contrast to the ICTR, extensive outreach programs at the SCSL started soon after the establishment of the Special Court and continued throughout its life- time. Interviewees reported that outreach officers, trained in how to explain the Court’s mandate and conversant in at least three local languages, traveled all over Sierra Leone to make sure the local populations understood the SCSL’s work.73 A variety of formats were used to convey information, including ‘town hall meetings’, visits to schools, or public lectures.74 Visits to observe proceedings at the Court were organized for the public and civil society organizations as well.75 The Court also had close relations with Sierra Leonean news outlets and organs; local journalists were trained in legal terminology and how to report on court proceedings, often in local languages. Over the years, journalists became quite used to ‘the SCSL beat’. In remote areas of the country without access to television and radio, outreach officers equipped with generators would screen videos of trial summaries, prepared by the Court, where weeks of testimony might be edited into 45 minutes. Voice-over was provided in Krio, and for the trial of Charles Taylor, there was voice-over in Liberian English as well.76 The SCSL Outreach Program has often been touted as an enormous success, and was even described as ‘the crown jewel of the Special Court’ by independent expert Antonio Cassese, a former ICTY Judge

72 Interview former SCSL Chief Prosecutor (3 April 2013). 73 Interview, supra note 70. 74 Ford, supra note 27. 75 Ibid. 76 Interview, supra note 70. Liberian English refers to a group of English language varieties, creoles and pidgins spoken in Liberia, which are distinct from Sierra Leonean Krio. See Tom McArthur, The Oxford Guide to World English (Oxford: Oxford University Press, 2003). 598 Swigart and its first President, who was appointed by the United Nations to review the SCSL’s operation.77

3.3 In the Courtroom As for SCSL courtroom proceedings, interpretation of testimony could constantly be checked for accuracy due to the presence of local language speakers. Not only were Sierra Leonean legal assistants represented on the prosecution and defense teams, but nationals also played other roles among the large courtroom staff. Perhaps of particular importance was the presence of Sierra Leonean judges who could easily stop the proceedings in order to correct the official record if an interpretation was deemed inaccurate. As one Sierra Leonean judge reported, ‘This correction is something that an Austrian or even a Nigerian judge could not do,’ although he added that the international judges often ended up understanding some Krio after years of listening to testimony in that language.78 Furthermore, the courtroom had an interpretation supervisor whose role was to listen to the words of interpreters – both from English to Sierra Leonean languages and vice-versa – to check for accuracy. An interviewee from the SCSL Registry noted that there were many ‘checks and balances’ in the interpretation process, which was one of the benefits of a hybrid court with local staff.79 A former Prosecutor expressed this in stronger terms, saying that ‘the hybrid nature of the court was a blessing’ – not only could local staff check on interpretation, but having local judges was important from ‘a diplomatic point of view’.80 Despite the built-in advantages of a hybrid court, some observers have noted that trials at the Special Court were nonetheless characterized not only by linguistic but also by cultural divergences between Court personnel and those on the witness stand. A former Prosecutor stated that the accuracy of the English language record at the Special Court seemed doubtful due to errors of interpretation that had never been corrected.81 Combs has documented that some of the indirect discourse styles and taboos around certain topics that impaired communication and fact-finding at the ICTR were also common at the SCSL.82 She also noted the particularly low level of literacy and educational attainment of those who testified at the SCSL, and suggests that this

77 Cited in Ford, supra note 27, at 513. Cassese’s report was submitted 12 December 2006. 78 Interview with former SCSL Judge and President (22 March 2013). 79 Interview, supra note 70. 80 Interview, supra note 72. 81 Ibid. 82 Combs, supra note 35. African Languages in International Criminal Justice 599 complicated witnesses’ ability to understand what was expected of them while giving testimony.83 Scholar Tim Kelsall followed the Special Court’s Civil Defense Forces trial closely and analyzed the transcripts of its proceedings.84 He provides another perspective onto how international criminal tribunals function in non- Western societies, describing in detail ‘some of the challenges posed . . . by the fact that the Court is surrounded by an unfamiliar social and legal culture, in which the way people think about human rights, human agency and appropriate social conduct often differs radically from the way international lawyers think about these things.’85 In particular, Kelsall described how SCSL judges, even those from Sierra Leone or neighboring African countries, seemed unwilling to engage with the non-Western beliefs held by witnesses about super- natural powers, patterns of authority and responsibility, and conceptions of childhood. These beliefs, Kelsall argues, had bearing on charges against the accused that dealt with command responsibility and enlistment of child soldiers, even though they did not square with the rationalist tradition underlying Western law and its practice.86

3.4 The Legacy of the SCSL in Africa What is the upshot of the collision of languages and cultural beliefs that occurred at the SCSL? How successful was the Court overall in fulfilling its mandate to try the persons most responsible for grave crimes, educating Sierra Leonean citizens about its work along the way? As for the ICTR, there are widely divergent views about the Court’s success, depending upon one’s professional point of view or connection to the institution itself. Even persons closely involved with the SCSL’s work recognize that potential linguistic and cultural miscommunications were not a trivial matter for a court that must judge the guilt or innocence of persons charged with war crimes and crimes against humanity. A former Prosecutor felt confident, however, that if the official court record was inaccurate due to poor interpretation, then it never ‘rose to the level of an injustice. If there had been big language issues, then they

83 Ibid. 84 Tim Kelsall, Culture under Cross-Examination: International Justice and the Special Court for Sierra Leone (Cambridge: Cambridge University Press, 2009). The full name of the case is The Prosecutor vs. Sam Hinga Norman, Moinina Fofana, and Allieu Kondewa (SCSL-04-14-A). 85 Ibid. at 2. 86 Ibid. 600 Swigart would have come out on appeal.’87 An administrator voiced the same belief, saying that there were too many measures in place at the Court for serious miscommunication to have altered the outcome of a trial.88 Of course, persons who worked in the SCSL Defense Office or served as counsel for the accused might well have a less confident view of the trial process and its just outcomes. Published critiques of the Court from the perspective of the defense tend to focus, however, on issues other than linguistic ones.89 The legacy of the Special Court’s language practices and policies for the local population must be evaluated differently from that of the ICTR. Given that local languages do not play a formal role in the Sierra Leonean judiciary, the translation of SCSL judgments into Krio or other national languages would do little to ensure the impact of its jurisprudence. But the domestic judiciary has still benefited from the work of the SCSL, a judge pointed out – Sierra Leone now has a cadre of interpreters who have been trained specifically in international criminal law and can use new interpretation technologies.90 In the end, it is perhaps the Court’s efforts to educate the population of Sierra Leone about its work via the spoken media and in-person formats that will be its biggest legacy. The SCSL seems to have set a new standard in this area, one that other criminal courts can use as a model.91 The newest international criminal tribunal established in Africa is the Extraordinary African Chambers (EAC), inaugurated in Senegal in 2013 to try the former Chadian dictator Hissène Habré and others for crimes against humanity, war crimes and torture.92 This institution appears to have paid close attention to the outreach goals and strategies of the SCSL, or at least to have the same view on the

87 Interview, supra note 72. 88 Interview, supra note 70. 89 See, e.g., Vincent O. Nmehielle, ‘The Defense Office of the Special Court for Sierra Leone: a Watershed in Realizing the Rights of Accused Persons in International Criminal Justice,’ in Charles Chernor Jalloh (ed.) The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law (Cambridge: Cambridge University Press, 2014), 527–549. 90 Interview, supra note 68. 91 Its apparent success notwithstanding, there are those who remain skeptical about the on-the-ground impacts of such wide-ranging outreach activities. Stuart Ford has documented that the SCSL reported 4,600 distinct outreach activities over 2007–2008, compared to the approximately 170 activities carried out by the ICTY during the same period in the former Yugoslavia. Subsequent surveys do not show, he argues, that the Sierra Leonean citizenry understood the work of the Special Court any better than their counterparts in the Balkans understood that of the ICTY. Supra note 27. 92 See http://www.chambresafricaines.org/. African Languages in International Criminal Justice 601 necessity of effective communication with those who have suffered from the crimes under consideration. The EAC Statute makes provision for the audiovisual transmission of trial proceedings except when the security of witnesses and other participants is in question.93 According to Human Rights Watch:

The approved budget [of the EAC] calls for a robust outreach program to ensure that the trial is meaningful to the people of Chad, arguably those most interested in and those most affected by this trial. The anticipated outreach activities include: transmitting trial proceedings to Chad; trans- lating proceedings into local Chadian languages; producing audio and video summaries and written materials with regular updates about progress in the case; and bringing Chadian journalists and civil society leaders to Senegal to observe the court proceedings.94

Given that the trials of the EAC are still in the investigative stage as of this writing, it is unclear how this ambitious outreach program will play out in practice. Looking back at the experience of the ICTR, one cannot help but wonder whether the fact that most of the principal EAC personnel are Senegalese – including judges, investigative judges, and the prosecutor – will hinder the institution’s ability to communicate with the Chadian public or carry out its fact-finding effectively.

4 Into the Future: The International Criminal Court

4.1 New Needs, New Standards If the language challenges faced by the ICTR and SCSL as described above have appeared daunting, they pale in comparison to those that the ICC has encountered in its first decade and will continue to encounter in the years to come. As the world’s first permanent international criminal court, the ICC has no territorial or situational specificity. It cannot foresee the locations of

93 Art. 36, EACSt.: ‘Enregistrement des audiences: Les audiences devant les Chambres africaines extraordinaires, sous l’autorité du Procureur général, sont filmées et enregistrées afin d’être diffusées sauf si cela contrevient aux mesures nécessaires à la protection des témoins et autres participants.’ 94 ‘Q&A: The Case of Hissène Habré before the Extraordinary Africa Chambers in Senegal, Human Rights Watch,’ available at http://www.hrw.org/news/2012/09/11/qa-case-hiss- ne-habr-extraordinary-african-chambers-senegal. The EAC is funded largely by Western countries along with Chad and the African Union. 602 Swigart the crimes it might be called upon to investigate nor the languages in which persons accused of those crimes might choose to communicate. Neither can it count upon having speakers of key languages among its own staff. From the very outset, the ICC is thus confronted with challenges unknown to the international criminal courts and tribunals that were established to address crimes in a particular zone of conflict. To date, all ICC ‘situations’ are in Africa – the Central African Republic, Côte d’Ivoire, Democratic Republic of Congo (DRC), Kenya, Libya, Mali, Sudan and Uganda. Each of these situations has given rise to multiple cases, which are in various phases of activity: investigation, pre-trial, or trial. Only two judgments of conviction, in the Lubanga and Katanga cases, and one judgment of acquittal, in the Ngudjolo case, have been delivered as of this writing, with Lubanga and Ngudjolo currently under appeal.95 The diversity of ICC cases currently in process means that a number of African languages, termed ‘situation languages’, have become critically important for various organs and offices of the Court, in addition to its working languages, English and French. The ICC also differentiates itself from the ICTR and SCSL in having made provision in its statute for the participation of victims in its proceedings:

One of the great innovations of the Statute of the International Criminal Court and its Rules of Procedure and Evidence is the series of rights granted to victims. For the first time in the history of international criminal justice, victims have the possibility under the Statute to present their views and observations before the Court . . . The victim-based provisions within the Rome Statute provide victims with the opportunity to have their voices heard and to obtain, where appropriate, some form of reparation for their suffering. It is this balance between retributive and restor- ative justice that will enable the ICC to not only bring criminals to justice but also to help the victims themselves rebuild their lives.96

The involvement of victims in the work of the Court adds a new level of need for direct contact with affected regions and those who have allegedly suffered from the crimes of accused persons, contact which can be most effectively made through the use of local languages.

95 Judgment, The Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/06), 14 march 2012; Judgment, The Prosecutor v. Germain Katanga (ICC-01/04-01/07), 7 March 2014; Judgment, The Prosecutor v. Mathieu Ngudjolo Chui (ICC-01/04-02/12), 18 December 2012. 96 See http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/victims/Pages/ victims%20and%20witnesses.aspx. African Languages in International Criminal Justice 603

Interviews with persons working across the ICC revealed that the Court understands the importance of accommodating speakers of its various situation languages. Even in the early days when the Rome Statute was being negotiated and written, there was recognition that, although European and other world languages would occupy a privileged institutional role, the bar should be raised vis-à-vis the comprehension by accused persons who speak other languages of the charges against them. Whereas both the ICTR and SCSL statutes state that an accused person has the right ‘to be informed promptly and in detail in a language which he or she understands (emphasis added) of the nature and cause of the charge against him or her,’ the ICC Rome Statute goes further, specifying that this communication must be in a language that the accused ‘fully understand and speaks.’

Article 50 – Official and working languages 1. The official languages of the Court shall be Arabic, Chinese, English, French, Russian and Spanish . . . 2. The working languages of the Court shall be English and French. The Rules of Procedure and Evidence shall determine the cases in which other official languages may be used as working languages.

Article 67(1) – Rights of the accused (a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks. (f ) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks.97

An interviewee for this project suggested that this slight alteration in the text outlining rights of the accused indicates a significant increase in the institution’s commitment to providing the best language services possible.98 An ICC judge confirmed this, declaring, ‘the Court takes Article 67(1)(a) very seriously.’99

97 Art. 50(1)&(2) ICCSt.; Art. 67(1)(a)&(f ) ICCSt. 98 Interview with official of the Court Interpretation and Translation Section, Division of Court Services, in the ICC Registry (8 April 2014). 99 Interview with ICC judge (26 March 2013). 604 Swigart

Interestingly, in his commentary on Article 67 of the Rome Statute, legal scholar William Schabas notes that informing an accused of the ‘content’ of a charge against him or her, and not just ‘the nature and cause’, represents an advance over the International Covenant on Civil and Political Rights (ICCPR).100 Reference to being informed of charges ‘in a language which the accused understands’ is also drawn from the ICCPR, but Schabas notes that ‘[t]he purpose served by requiring not only that the accused understand the language but also speak it seems unclear.’101 A linguist or interpreter would have recognized the significance of the addition. The knowledge required to actively use a language is superior to that needed to passively understand it; the new standard thus offers a fuller guarantee that an accused will fully comprehend the charges. Schabas does indicate, however, that ‘insisting on this detail helps to exclude some Strasbourg case law by which the norm is respected if the language is understood by the accused’s lawyer, and not necessarily by the accused personally.’102

4.2 A Diversity of Language Services The ICC’s Court Interpretation and Translation Section (STIC) is responsible for numerous language-related activities and services at the ICC, including translation of Court documents and interpretation during courtroom hearings. The latter is of particular interest vis-à-vis African languages. To date, simultaneous interpreters have been trained in Acholi (Uganda), Swahili Congolese variant (DRC), Lingala (DRC), Sango (Central African Republic), and Zaghawa (Sudan). Consecutive interpreters are available for other African languages as well, such as Alur (Uganda) and Lendu (DRC), and it is planned for Fur (Sudan) and Sudanese Arabic.103 It was reported that although simultaneous interpreters are recruited in their own right, some have been accredited previously for consecutive field interpretation for the OTP. Potential interpreters are given a test to see, as one interviewee phrased it, ‘if they have that particular switch in their brain that allows them to hear one language and with a short delay translate it orally.’104 She added that, although it is too early to establish definitively,

100 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations. 101 William A. Schabas, ‘Article 67: Rights of the Accused,’ in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (München, Germany: Beck; Portland, Or.: Hart, 2008), at 1257. 102 Ibid. 103 Written communication with STIC official (7 April 2014). 104 Interview, supra note 98. African Languages in International Criminal Justice 605 especially given that the number of interpreters is still small, there is some indication that the most successful ICC interpreters are those who have been trained as lawyers and have the situation language as their native one. Like the ICTR and SCSL, the ICC has developed legal terminology in situation languages, as well as established clear definitions in both English and French for key concepts in the Court’s work, such as ‘victim’ and ‘reparations’.105 One of STIC’s most impressive accomplishments is its preparation of a glossary of legal phrases used in the ICC courtroom, translated from English into French, Lingala, Sango, Arabic, and both Congolese and standard variants of Swahili (with a mirror French version glossing the same phrases into English and the other languages). This ‘Phraseology in the Courtroom’106 features dozens of predictable phrases used at various stages of ICC proceedings, setting a standard for their interpretation. Following are some examples: • A person shall not be compelled to incriminate himself or herself or to con- fess guilt. (Pre-trial stage: investigation and prosecution); • Could the officer read out the charges? (Pre-trial stage: confirmation of charges); • The accused is presumed innocent until proven guilty before the Court. (Trial stage: commencement of trial); • I solemnly swear that I will speak the truth, the whole truth, and nothing but the truth. (Trial stage: examination of witnesses); • All parties and participants to the proceedings have the right to deliver their closing arguments in the hope of swaying the judges’ decision in their favour. (Trial stage: closing arguments); • After the closing statements, the Chamber shall retire to deliberate, in camera. (Trial stage: deliberations); • In determining the sentence, the Chamber shall take into account the gravity of the crimes and the individual circumstances of the convicted person. (Trial stage: sentencing).

Despite the vigorous efforts of STIC to deliver the best interpretation, questions of accuracy are bound to arise in the context of the courtroom. It was reported that whereas simultaneous interpretation usually aims for 75% accuracy, at the ICC they are trying for 90–95% accuracy, a percentage initially but

105 Ibid. 106 Copyright STIC, 2012. The Phraseology, prepared by a team of STIC interpreters over several years, was kindly made available to the author. 606 Swigart informally established at the ICTY.107 This is a high standard but it is necessary since the transcripts of interpreted testimony, and not the audio recordings of testimony, serve as the official court record. The rate of accuracy is verified by checking a random 10% of interpreted transcriptions in French and English against the audio version of testimony and also against one another. A 20-year veteran of interpretation services at international criminal tribunals also noted that, in her experience, an inaccurate interpretation usually becomes obvious. ‘No matter who is or is not checking, it comes out.’108 One of the most challenging languages that the ICC has had to accommodate is Zaghawa, a situation language for the Banda case.109 Zaghawa is a language spoken in the Darfur region of Sudan and parts of Chad, with only an estimated 169,000 speakers total.110 Banda has chosen to testify in Zaghawa and STIC has accordingly undertaken the identification and training of interpreters. To prepare for the trial, important legal terminology work has been done with Zaghawa trainee interpreters in Arabic as well, which is an official language of Sudan and widely spoken in Darfur.111 The use of Zaghawa and other so-called ‘languages of lesser diffusion’ at the ICC raises an important question: when only the person testifying and the interpreter are conversant in the language, how are inaccuracies to be detected? At both the ICTR and the SCSL, there were always native speakers of the various African languages in the courtroom – if not serving as judges then as counsel or in support positions – who were able to identify mistakes in the English or French interpretation and ask for the official court record to be corrected. While some inaccuracies still made it into the official record, as noted above, the informal oversight of African language speakers still served as an important check. An ICC judge expressed some concern about this dilemma at the Court, as well as about the dearth of interpreters available for certain minority languages. She noted that at one point, the ICC Chambers and OTP were each calling for the services of the one available Zaghawa interpreter.112 The STIC policy is to establish a roster of interpreters and then split them between the OTP and the Registry (for courtroom work) to avoid any conflicts

107 Interview, supra note 98. 108 Ibid. 109 The Prosecutor v. Abdallah Banda Abakaer Nourain (ICC-02/05-03/09). The case originally involved two accused but proceedings against the second were terminated after the Court received evidence pointing towards his death. 110 See http://www.ethnologue.com/language/ZAG. 111 Interview, supra note 98. 112 Interview, supra note 99. African Languages in International Criminal Justice 607 of interest that might arise if the same interpreters work for both. But sometimes an exception has to be made in order for a case to move forward.113 More Zaghawa interpreters have since undergone training, anticipating the opening of the Banda trial.114

4.3 Reaching Out in Multiple Languages The ICC Outreach Unit also comes, by necessity, into frequent contact with African language speakers. The Court describes the work of the Outreach Unit thus:

In order for the Court to fulfil its mandate, its role and judicial activities must be understood by a variety of audiences. In this respect, the Court’s outreach programme has been created to ensure that affected communities in situations subject to investigation or proceedings can understand and follow the work of the Court through the different phases of its activities.115

The Outreach Unit engages with both specialized audiences (e.g. legal practitioners, mainstream journalists, students and educators) and non-specialized audiences (e.g. grass roots populations and community radio journalists), and chooses its language of communication accordingly. While French or English can be used with the former, local languages are de rigueur with the latter. Outreach coordinators, who generally hold a number of desirable skills – knowledge of international law and communications, management experience, etc. – are not nationals of the country where they work, for reasons of both security and neutrality. Outreach assistants, on the other hand, are nationals of the situation country and need to have, among other skills, knowledge of local languages and cultures. One of the most important audiences for outreach is victims, who are often assisted by local intermediaries in understanding and going through the judicial and reparation process. The Outreach Unit has identified 20 African languages that are critical for its work – in Uganda, DRC, Sudan, Central African Republic, Kenya, Cote d’Ivoire, Libya and Mali – although some of its activities in these languages have yet to begin. Almost all of its communications in these languages are strictly oral.116

113 Interview, supra note 98. 114 As of this writing, the trial is scheduled to open on 18 November 2014. 115 See http://icc-cpi.int/en_menus/icc/structure%20of%20the%20court/outreach/Pages/ outreach.aspx. 116 Written communication with official of the ICC Outreach Unit (19 April 2013). 608 Swigart

4.4 In the Courtroom How have African languages fared to date in the ICC courtroom? With only a couple of trials completed, all from the DRC,117 there is not yet enough experience from which to draw conclusions. An ICC judge who sat on the Lubanga trial observed that it was an experiment in many ways, including in how the timing worked in terms of interpretation and translation. Although the Court was prepared to accommodate the defendant with his native language, Lubanga chose to testify in French. Had he chosen an African language, the judge continued, the proceedings would have been more complicated and taken much longer.118 While this view from the bench is interesting, it may not truly reflect the inner-workings of the language services department; when asked, a STIC official did not agree that language issues or a lack of interpreters would ever prevent a trial from taking place or require the postponement of a hearing.119 Some of the same issues documented during ICTR and SCSL trials also arose, not surprisingly, during the Lubanga trial. The defendant would occasionally correct the interpretation of a witness’ testimony from Swahili into French, for example. Lubanga’s lawyers would then halt the proceedings to see if the problem could be corrected immediately for the record. Otherwise, the parties were instructed to discuss it for later resolution. There were also moments of ‘cultural confusion’ when the judges and courtroom staff did not understand some witnesses’ reluctance to testify. In one incident, a young witness was unwilling to give his testimony before that of his father, out of respect for the latter’s age and authority. A judge reported that much diplomacy and care were necessary to convince him to testify in the requested order.120 Although it is unusual, there is also sometimes a call at the ICC for translated and transcribed documents based on African language recordings. A judge spoke of the Mbarushimana121 case where the defense team requested that multiple audiotapes in Kinyarwanda be transcribed and translated, asserting that they were critical for the case. The OTP objected, saying it would take months, if not years, for this work to be completed and would delay the trial terribly. The defense team eventually dropped the request.122 It is possible that future calls for the transcription and translation of African languages may emerge in the trial of Joshua Arap Sang who, as head of a Kalenjin-language

117 Supra note 95. 118 Interview with ICC judge (17 April 2013). 119 Personal communication with STIC official (26 May 2014). 120 Interview, supra note 118. 121 The Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10. 122 Interview, supra note 99. African Languages in International Criminal Justice 609 radio station, is accused of inciting ethnic hatred in 2007–2008 following a contested Kenyan presidential election.123

4.5 Looking Ahead At this point in the life of the ICC, it would be difficult to assess the success of its various language policies and practices. However, it would appear that the Court is fully committed to ensuring fair trial rights and fulfilling its complex communications mandate, both of which require intensive work with situation languages. Indeed, the Court already does a better job than most African justice systems in incorporating African languages into the formal legal process and treating them as full languages, capable of expressing complex legal principles. This, of course, takes significant resources, something that domestic courts in Africa rarely have. The lessons of the ICTR can prove instructive for the ICC. As the first international criminal tribunal to confront the need for communication with African language speakers, it had to act quickly and innovate often. But as already noted above, some ICTR language staff ultimately felt frustrated by the institution’s lack of attention to follow-through in Kinyarwanda. One ICTR interpreter offered this advice to the ICC, paraphrased below:

Make the necessary investment in language services and it will save money in the end. Every time a trial is delayed because a necessary document has not been translated, it costs money. When a trial takes 30% longer because there is no trained simultaneous interpreter, only a consecutive one, it brings with it enormous costs. People at the top need to understand that investment in language skills will shorten the proceedings and lower the costs of the Court. Creating a highly professional language staff with proper infrastructure makes sense, both practically and fiscally.124

As for learning from the experiences of the SCSL, the global court seems to have fully embraced the outreach philosophy of the hybrid court, judging from the ICC’s diverse range of programs targeting affected communities and victims in multiple languages. The question now is whether such a plan can be sustained from the point of view of both human and financial resources as new situations and cases arise.

123 The Prosecutor v. William Samoei Ruto and Joshua Arap Sang (ICC-01/09-01/11). 124 Interview, supra note 10. 610 Swigart

5 Conclusion

There are many contradictory views about the success and even appropriateness of contemporary international criminal justice. Its advocates may tout it as the most effective tool for redressing humanity’s worst crimes and putting an end to impunity. Its critics may point out its enormous cost, its slow pace, or the fact that it represents a form of ‘white man’s justice’ for its largely non- Western defendants. After closely studying its proceedings, some may even assert that its very methods are flawed and resulting judgments unfair.125 This paper has not weighed into this fractious debate, but rather examined a single but critical facet of the work of international criminal courts and tribunals – their communication with participants in the justice process who do not speak an official institutional language. Without this communication, the international justice ‘project’ could not effectively or fairly render justice to defendants or to victims. Whatever one’s views on this project, the reality is that the ICC is here for the foreseeable future and that its current cases center on African language speakers. As Kelsall observes of the ICC, ‘witnesses and defendants in these trials will come from societies with very different cultures or cultural mixes to those that predominate in the West, with varying ideas about morality, responsibility, evidence and truth. International justice, because of this, needs to learn the lessons of working with unfamiliar cultures fast.’126 The corollary is that it needs to learn the lessons of working with unfamiliar languages fast. This chapter has aimed to shed light on how policies and practices related to the use of African languages have been approached and how they have evolved from the early days of the ICTR till today. By bringing forth the voices of individuals who have worked on the front lines of interpretation, translation, and outreach, as well as in the roles of judge, prosecutor, and defense counsel, a certain narrative about African languages has begun to emerge. These languages – grammatically complex, rich in tradition and expressive capacity, functionally marginalized by historical twists of fate – are now taking center stage in some of the most innovative and forward-looking institutions to be found in the early 21st century. Testimony given in these languages, despite the inevitably imperfect process of interpretation, serves as the building blocks of judgments that advance global thinking about international humanitarian and human rights law. It can only be hoped that those who have suffered at the hands of the accused have found and will continue to find some sense of

125 Combs, supra note 35, and Lyons, supra note 52. 126 Kelsall, supra note 84, at 3. African Languages in International Criminal Justice 611 resolution and peace in hearing their languages on the witness stand, in the mouths of outreach officers, and in radio broadcasts about trial proceedings and judgments. Language experts at the ICC seem very much aware of the potential pitfalls that come with their work, amply illustrated by experiences from the ICTR and SCSL and increasingly from their own institution. They are also diligently trying to overcome them, and have clearly thought strategically about the best way to increase linguistic access to the Court, and in the process enhance perceptions of its legitimacy and fairness. If the full mandate of the ICC is to be achieved – that is, ‘to not only bring criminals to justice but also to help the victims themselves rebuild their lives’127 – then the Court must pay careful attention to its communication with participants and audiences in both the courtroom and the regions impacted by the crimes under consideration. This endeavor might be formidable but is well worth the cost and effort.

127 Supra note 96.

Index

Accused Acquittal Adequate time and facilities 312 Non bis in idem 216 Appearance, initial 470, 471 See Non bis in idem Arrest, State obligation to assist with 74, Actus reus 227, 230, 233, 234, 239, 241, 242, 75, 79, 88 243, 244, 246, 247, 248, 249, 255, 257, Assignment of defense counsel 451 259, 371, 575 Burden of proof 165, 166, 167, 168, 172, Ad hoc International Tribunals 9, 188, 329 173, 174, 176, 177, 178, 179, 190, 198, See International Criminal Tribunal for 287, 388, 403, 457, 460, 583 Rwanda (ICTR) and International Confrontation and exceptions, right of Criminal Tribunal for the Former 453 Yugoslavia (ICTY) Counsel, appointment of 313, 449 Additional Protocol II to the 1949 Geneva Counsel, assignment of 451 Conventions 58, 207, 291, 458, 555 See also Counsel Acts of terrorism Examination of witnesses 605 Pillage 291, 317, 597 Expeditious trial 220, 221, 456 Adjudicated facts 402, 404, 454, 455, 456, Fundamental rights of 203, 215, 220, 454 459, 463 Independent and impartial tribunal 186 Administration of justice 3, 35, 51, 196, 240, Language, right to use own 582 508, 509 Nature and cause of charge 582, 596, Admissibility of evidence 603, 604 Reliability 404 Oral argument 317 Adversarial system 181, 453, 515 Pretrial judge, use of 99 Advocates 138 Presence of 71, 472 See Counsel Presumption of innocence 157, 158, 160, African Charter of Human and Peoplesʼ Rights 161, 162, 163, 164, 165, 166, 167, 168, 7, 423, 517, 518, 519, 520, 521, 522, 525, 169, 170, 171, 172, 173, 174, 175, 176, 177, 526, 527, 528, 531 178, 179, 180, 183, 185, 186, 187, 188, Age 317, 322, 334, 335, 380, 562, 584, 608 189, 190, 191, 192, 193, 194, 195, 197, See Children 198, 199, 434 Aggravation, aggravating factors 321, 348, Privileges and immunities 502 397 Provisional release 186, 188, 189, 190, 192, See also Sentencing 193, 199 Aid and abet, aiding and abetting Public hearing 172, 454, 502 Accused’s presence at crime 225, 226, Questioning 173 227, 237, 238, 239, 240, 241, 242, 243, Release, provisional 186, 188, 189, 190, 244, 245, 246, 247, 248, 249, 250, 253, 192, 193, 199 254, 255, 257, 258, 259, 260, 262, 266, Rights of, generally 172, 173, 175, 185, 203, 269, 271, 320, 321, 324, 443, 566, 568, 214, 216, 221, 403, 404, 412, 418, 420, 572, 575, 576 424, 425, 426, 427, 433, 434, 449, 453, Alibi, defense of 208 454, 456, 492, 582, 596, 603 Amendment of the Rules of Procedure and Self-incrimination 187, 188, 199 Evidence 62 Time and facilities 312 Amicus Curiae 304, 380, 419, 472 Witnesses, examine 512 Amicus curiae briefs 304, 419 614 Index

Amnesty 270, 284, 286, 287 Burden of Proof 165, 166, 167, 168, 172, 173, Annual Report 59, 60, 514 174, 176, 177, 178, 179, 190, 198, 287, 388, Appeal(s) 21, 22, 36, 89, 173, 176, 178, 189, 190, 403, 457, 460, 583 193, 207, 210, 222, 229, 233, 234, 235, 240, See also Accused 242, 244, 245, 247, 249, 260, 305, 308, Burning 561 316, 320, 321, 322, 330, 331, 333, 348, 359, 371, 372, 373, 376, 383, 385, 386, 387, 394, Charge, charging 395, 396, 398, 399, 400, 401, 403, 404, Cumulative 201, 202, 203, 204, 205, 206, 409, 418, 430, 433, 437, 445, 447, 448, 207, 208, 209, 210, 211, 213, 214, 215, 455, 456, 457, 458, 459, 460, 467, 475, 216, 217, 218, 219, 220, 221 489, 491, 503, 505, 506, 511, 513, 545, 555, Charter 557, 561, 565, 566, 567, 568, 569, 573, United Nations 74, 76, 104, 105, 108, 308, 600, 602 443 Appeal and review proceedings Child, Children Interlocutory appeals 456, 458 Forcibly transferring children 227 Miscarriage of justice 89, 475 War crime of using, conscripting or Notice of appeal 229 enlisting 291, 317 Trial chambers and 169 Child Soldiers Appearance Conscription 291, 317 Initial 470, 471 Recruitment 337, 563 Appellant 573 Civilian Armed Conflict Attacking, as a war crime 223, 336, 337, Non-international 328, 334, 336, 556, 557 387, 458, 557 Armed Forces Revolutionary Council (AFRC) Civilian Population 195, 214, 223, 336, 337, 237, 272, 273, 285, 289, 290, 317, 320, 323 387, 458, 557, 558, 565 Arrest Civil Defense Forces (CDF) 125, 171, 272, By Sierra Leone 84, 276, 323 286, 289, 309, 323, 599 Habeas corpus 543 Civil law system 175, 179 Arrest warrant Closing Arguments Execution of 79, 86, 189 Sentencing stage and 605 International 302 Command Responsibility Arson 289 SCSL Art. 6(3) 398 Assignment of Counsel 451 Commanders and other superiors Attack(s) Had reason to know 263, 290, 392, On civilian population 223, 336, 337, 387, 463 458, 557 Common Article 3 to the Geneva Widespread 215, 458 Conventions Systematic 215, 458 Cruel treatment 291 Against the civilian population 223, 336, Murder 291 337, 387, 458, 557 Outrages against personal dignity 291 Rape 291, 336 Bail 190 Violence to life 291 See Provisional Release Common knowledge, fact of 457, 460, 461 Beatings 561, 564 Common law system 36, 176, 179 See crimes against humanity Concurrent jurisdiction 64, 65, 407, 409, Bias 11, 182, 378 411, 414, 415, 416, 433, 435, 472 See Impartiality See Jurisdiction British Broadcasting Cooperation (BBC) Constitutionality 28 281 Contempt 312 Index 615

Conviction Depositions 431, 448, 449, 450, 451, 453, 454, Cumulative 201, 209, 217, 222, 223, 224, 476 227, 229, 230, 231, 232, 233, 235, 321 Detention Counsel of the Defense 311, 313, 314, 316, 448, Conditions 311, 420, 428, 429, 468, 487, 451, 453, 466, 583, 584, 590, 591, 600 489, 491 See Defense counsel Pre-trial 188, 189, 190, 191, 192, 193, 198 Credibility of witnesses 181 Suspects 191, 193 Crimes Against Humanity Disclosure Enslavement 291, 317, 328, 343, 372, 467, Exculpatory Evidence 148 563 Discretion 51, 52, 54, 55, 62, 67, 76, 106, 229, Extermination 122, 213, 214, 215, 218, 223, 231, 234, 293, 307, 322, 388, 399, 402, 360, 475 404, 443, 456, 460, 526 Mens rea requirement 48, 266 Documentary evidence 323, 340, 379, 454, Murder 210, 213, 218, 223, 224, 266, 291, 456 317, 399, 422, 559, 562, 563, 577 Due diligence 76, 346 Other forms of sexual violence 328, 333, Due process 4, 125, 147, 148, 157, 158, 413, 415, 335, 358 426, 434, 436, 437, 438, 446, 482, 501, Other inhumane acts 291, 398, 399, 561 502, 503, 508, 509, 516, 581 Persecution on political, racial and Duress 331, 369, 388 religious grounds 328, 333, 552 Duty counsel 275, 448, 449, 450, 451, 453 Pregnancy, forced 328, 333, 335, 336 Prostitution 328, 333, 335, 336 Economic Community Military Observer Rape 142, 210, 213, 218, 219, 224, 291, 317, Group (ECOMOG) 112, 286 328, 333, 334, 335, 336, 343, 358, 372, Economic Community of West African States 376, 379, 384, 394, 397, 398, 403, 463, (ECOWAS) 112, 113, 114, 246, 281, 286, 293, 467, 468, 562, 587 294, 298, 299, 535 Rape as torture 343, 372, 467 Effective control 397, 535 Sexual slavery 219, 291, 317, 328, 333, 335, Elements of crimes 136, 210, 328, 331, 557 336, 343 Enslavement 291, 317, 328, 343, 372, 467 Sexual violence 328, 333, 335, 358, 372, Equality of Arms 215, 220, 312, 425, 512, 514, 373, 376, 379, 384, 397, 398, 403, 463, 515 468 European Convention on Human Rights Torture 210, 218, 343, 372, 467, 468, 558, 518, 522, 544 559, 562, 563, 577, 600 European Court of Human Rights 132, 186, Cruel treatment (also Inhumane treatment) 489, 521, 522, 529 291 Evidence Cumulative convictions 209 Admissibility 388, 448 Corroboration 347 Defective indictment 470, 471, 473, 475 Direct versus indirect 250, 251 Defense Counsel Documentary 323, 340, 379, 454, 456 Assignment of 451 Exclusion of 452, 474 Defense Office/Office of the Principal Expert Report 67, 514, 515 Defender 301, 313, 600 Expert witness 184, 471, 591, 592 Defense Team 311, 313, 314, 460, 608 Presentation of 207, 208, 347, 375 Duty Counsel 275, 448, 449, 450, 451, 453 Preservation 192, 448, 450, 454 Sanction 316 Records of 137 Deliberations 48, 311, 316, 317, 318, 319, 449, Reliability 404 454, 605 Rules of evidence 157 616 Index

Evidence (cont.) Individual criminal responsibility 142, 290, See Rules of Procedure and Evidence 321, 394 Written Statements 464 Inhumane and degrading treatment 357 Expeditious trial 220, 221, 456 Initial appearance 470, 471 Expenses 582 Innocence, presumption of 157, 158, 160, 161, Expert (witness) 184, 471, 591, 592 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, Facts 183, 185, 186, 187, 188, 189, 190, 191, 192, Adjudicated 402, 403, 404, 454, 455, 456, 193, 194, 195, 197, 198, 199, 434 459, 463 Insanity 165 Facts of common knowledge 457, 460, Interests of justice 56, 316, 337, 451, 453, 454, 461 491, 493, 582 Statement of 470, 475 International Criminal Court (ICC) Fair Trial Rome Statute 51, 52, 73, 79, 82, 83, 84, 85, Guarantees 418, 420, 423, 482 88, 89, 97, 98, 124, 128, 177, 178, 187, Forced Marriage 150 238, 258, 264, 265, 296, 349, 412, 413, Fundamental rights 5, 16, 17, 25, 33, 203, 215, 414, 434, 435, 437, 438, 558, 569, 570, 220, 454, 502, 522 582, 602, 603, 604 International Criminal Tribunal for the Gbao, Augustine 281 Former Yugoslavia (ICTY) 52, 58, Geneva Conventions 58, 206, 207, 291, 336, 59, 62, 66, 71, 130, 163, 222, 239, 327, 478, 458, 555, 587 581 See Common Article 3 to the Geneva International Criminal Tribunal for Rwanda Conventions (ICTR) 7, 47, 52, 56, 58, 59, 62, 63, 64, 66, Greatest Responsibility 61, 62, 63, 72, 139, 67, 69, 71, 103, 118, 130, 157, 202, 206, 150, 289, 385, 393, 394, 595 222, 327, 355, 375, 409, 440, 478, 578, Guilty Plea 276, 469, 470 579, 580 International Court of Justice (ICJ) 302, Habeas Corpus 543 505 Hostilities 291, 318 Interpreters 16, 120, 351, 578, 579, 581, 582, Hybrid 106, 130, 131, 132, 133, 135, 137, 139, 141, 583, 584, 587, 590, 591, 593, 598, 600, 142, 143, 145, 147, 148, 149, 151, 152, 153, 603, 604, 605, 606, 607, 608, 609 163, 164, 165, 167, 168, 174, 175, 176, 177, Intervention 27, 104, 106, 109, 110, 111, 112, 116, 178, 179, 180, 183, 184, 185, 187, 197, 198, 180, 196, 198, 535 200, 204, 207, 217, 533, 595, 598, 609 Investigations Conduct of 51, 251, 340, 341, 361, 374 Immunity State immunity (immunity ratione Joint Criminal Enterprise 142, 144, 225, 226, materiae) 97 227, 228, 230, 231, 232, 235, 238, 242, 255, Impartiality 26, 69, 147, 375, 432 263, 264, 265, 267, 271, 318, 364, 392, Imprisonment 119, 148, 202, 204, 228, 320, 394, 395, 396, 397, 566, 567, 568, 569, 322, 398, 420, 421, 422, 426, 429, 445 570, 571, 572, 575, 576 Indictment See Individual Criminal Responsibility Cumulative charging 201, 202, 203, 204, Judgments 205, 206, 207, 208, 209, 210, 211, 213, Final judgments 184 214, 215, 216, 217, 218, 219, 220, 221 Trial judgments 245 Defects in 474, 475, 476 Judges Withdrawal 472, 473 Unfit to sit 320 Indigent 148, 451 Judicial Economy 442, 448, 454, 456, 474 Index 617

Judicial Notice Preliminary Motions Adjudicated facts 402, 403, 404, 454, 455, Defect(s) in indictment 474, 475, 476 456, 459, 463 Premeditation 208 Jurisdiction President 4, 59, 62, 64, 71, 75, 76, 79, 81, 84, Challenge to 303 98, 101, 129, 143, 172, 178, 225, 226, 245, Concurrent jurisdiction 64, 65, 407, 409, 270, 272, 275, 276, 277, 278, 281, 282, 284, 411, 414, 415, 416, 433, 435, 472 285, 286, 287, 293, 294, 296, 299, 300, Ratione personae 304 302, 303, 304, 305, 306, 307, 315, 324, 400, 444, 447, 448, 454, 470, 472, 482, Killing 201, 202, 225, 226, 227, 252, 259, 268, 483, 491, 493, 510, 536, 537, 582, 598 472, 475, 558, 559, 560, 562, 563 Primacy 65, 78, 172, 411, 415, 433, 434, 435, 478 See Murder Prosecution/Prosecutor Deputy Prosecutor 157, 469, 475, 476 Locus standi 19 Independence 52, 56, 67, 375, 514 Liberia 112, 150, 151, 237, 245, 270, 271, 273, Regulations 329 274, 276, 277, 278, 279, 280, 281, 282, 283, Submission of indictment by 476 284, 292, 293, 294, 295, 296, 297, 298, Provisional detention 191 299, 300, 301, 302, 304, 305, 306, 307, Provisional release 186, 188, 189, 190, 192, 310, 322, 323, 597 193, 199 Public hearing 172, 454, 502 Mens rea 48, 266 Miscarriage of justice 89, 475 Rape Misconduct of counsel 55 Under Common Article 3 291, 336 Motions Reasonable Doubt 136, 158, 165, 168, 169, 171, Interlocutory appeal 474 172, 174, 175, 176, 178, 179, 181, 183, 184, Preliminary 303, 474 190, 198, 199, 273, 373, 468 Protective measures 464 Registrar Murder Acting Registrar 313 As crime against humanity 210, 213, 218, Review Proceedings 223, 224, 266, 291, 317, 399, 422, 559, Final judgment 184 562, 563, 577 Preliminary examination 337, 338, 340, 343 Non bis in idem 216 Revolutionary United Front (RUF) 184, 237, 245, 246, 252, 257, 259, 260, 270, 271, Office of the Prosecutor 7, 51, 59, 60, 71, 272, 273, 280, 281, 282, 283, 284, 285, 73, 74, 75, 77, 78, 79, 81, 83, 84, 85, 286, 287, 288, 289, 290, 297, 299, 308, 87, 89, 99, 130, 136, 222, 273, 301, 327, 309, 317, 320, 321, 323 328, 329, 353, 355, 357, 379, 380, 381, Rights of the Accused 382, 384, 394, 420, 479, 486, 490, 496, Fair Trial 203, 403, 412, 418, 420, 424, 425, 581 426, 427, 433, 434, 453, 492 See Prosecutor Presumption of Innocence 157, 158, 160, Opinions 161, 162, 163, 164, 165, 166, 167, 168, Concurring 259, 262 169, 170, 171, 172, 173, 174, 175, 176, 177, Dissenting 215, 249, 316, 318, 319 178, 179, 180, 183, 185, 186, 187, 188, Outrages upon personal dignity 291, 317, 189, 190, 191, 192, 193, 194, 195, 197, 332, 337, 357, 468 198, 199, 434 Public Hearing 172, 454, 502 Participation in hostilities Trial without undue delay 74 Direct 242, 561 Rights of Suspect 172, 173, 175, 185, 203, 214, Pillage 291, 317, 597 216, 221, 403, 404, 412, 418, 420, 424, 425, 618 Index

Rights of Suspect (cont.) Sexual assault 371, 379, 382, 386, 390, 426, 427, 433, 434, 449, 453, 454, 456, 391, 397, 398, 399, 400, 463, 464, 468, 492, 582, 596, 603 477 Rules of Procedure and Evidence Sexual slavery 219, 291, 317, 328, 333, 335, Rule 3 582 336, 343 Rule 8 415, 416 Sexual violence 9, 11, 61, 143, 328, 331, 332, Rule 9 415, 416 333, 335, 339, 340, 347, 348, 350, 353, Rule 10 415, 416 355, 356, 357, 358, 359, 360, 361, 362, Rule 11 415 363, 364, 365, 366, 367, 368, 369, 371, Rule 11bis 195, 359, 383, 409, 410, 411, 372, 373, 374, 375, 376, 377, 378, 379, 412, 413, 414, 415, 416, 417, 418, 380, 381, 382, 383, 384, 385, 386, 387, 419, 420, 422, 426, 429, 434, 435, 389, 392, 395, 396, 398, 401, 402, 403, 438, 439, 441, 442, 443, 444, 446, 405, 442, 450, 462, 463, 468, 477, 584, 447, 448, 480, 483, 484, 492, 493, 588, 589 477, 480, 481, 482, 483, 484, 492, Sierra Leonean Law 52, 139, 287, 289 493 Sources of Law 518 Rule 51 471 State Cooperation 72, 76, 88, 190 Rule 60 449 Statute (ICTR) Rule 61 449 Article 2 358, 468 Rule 62 470, 471 Article 3 213, 357, 468 Rule 63 197, 347 Article 4 357, 468 Rule 65 189, 190 Article 5 213 Rule 67 170 Article 6 218, 392, 397, 492 Rule 70 348 Article 8 415, 472 Rule 71 348, 454 Article 20 169, 171, 423, 451, 452, 582 Rule 71bis 441, 442, 443, 448, 449, 450, Article 28 74 451, 452, 453, 454, 477 Superior Responsibility 263, 267, 392, 394, Rule 72 348 397 Rule 81 346 See Command responsibility Rule 87 168, 169, 171, 213, 347 Rule 92bis 442, 452, 463, 464, 476, 477 Taylor, Charles Ghankay 270, 312, 324 Rule 92quater 452 Time limits 506 Rule 94 402, 404, 441, 442, 454, 455 456, Torture, including inhumane treatment 457, 458, 459, 460, 461, 463, 464, 476, Rape as torture 343, 372, 467 477 Transfer 9, 10, 11, 12, 61, 62, 63, 71, 72, 73, 74, Rule 96 387, 388 75, 76, 77, 85, 122, 144, 147, 261, 290, 292, 299, 307, 309, 322, 409, 411, 413, 414, 415, Seat of the Court 384 416, 417, 419, 420, 421, 422, 423, 424, 425, Sentencing 426, 427, 428, 429, 430, 431, 432, 433, Guilty plea 276, 469, 470 434, 435, 437, 439, 442, 443, 444, 445, Imprisonment 202, 228 446, 447, 448, 450, 472, 473, 477, 478, Individual circumstances 605 479, 481, 482, 483, 486, 487, 489, 490, Rape 202, 397 491, 495, 496, 592 Remorse 322 Translators 504, 583, 593 Sexual offenses Truth and Reconciliation Commission 172, Protective orders for victims of 462, 464 173, 280, 323 Index 619

United Nations 7, 54, 59, 61, 74, 86, 89, 98, Credibility of 181 104, 105, 107, 108, 109, 117, 120, 127, 130, Cross-examination of 385, 452, 462, 466, 148, 173, 177, 276, 284, 285, 287, 288, 477 289, 300, 306, 308, 342, 350, 359, 375, Expert Witnesses 184, 471, 591, 592 416, 440, 459, 460, 463, 469, 492, 501, Investigators and 360, 381, 382, 384, 463, 502, 503, 505, 506, 507, 508, 509, 511, 476, 581, 583, 584, 589 513, 515, 527, 528, 532, 548, 550, 558, 572, Identity of 346, 465 598 Interfering with or intimidating 188, 424, United Nations Charter 74, 76, 104, 105, 108, 564 308, 443 Intimidation and harassment 188, 424, 564 Victims Protective Measures 339, 346, 464, 482 Protection of 144, 342, 346, 385, 442, 464, Reliability of 181 477 Self-incrimination 187, 188, 199 Testimony of 173, 181, 183, 347, 424, 425, Witnesses 428, 466, 476, 587, 592 Anonymity of 465 Witness statement 584, 589 Confrontation of 453 Working Language 582, 596, 602, 603