Human Rights Brief

Volume 12 | Issue 2 Article 10

2005 Updates from the International Criminal Courts Nicolas M. Rouleau American University Washington College of Law

Annelies Brock American University Washington College of Law

Daisy Yu American University Washington College of Law

Anne Heindel American University Washington College of Law

Mario Cava American University Washington College of Law

See next page for additional authors

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

Recommended Citation Rouleau, Nicolas M., Annelies Brock, Daisy Yu, Anne Heindel, Mario Cava, and Tejal Jesrani. "Updates from the International Criminal Courts." Human Rights Brief 12, no. 2 (2005): 33-38.

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This column is available in Human Rights Brief: http://digitalcommons.wcl.american.edu/hrbrief/vol12/iss2/10 Rouleau et al.: Updates from the International Criminal Courts

UPDATES FROM THE INTERNATIONAL CRIMINAL COURTS

INTERNATIONAL CRIMINAL TRIBUNAL When this requirement is met, the party argu- The Appeals Chamber then examined the FOR RWANDA ing that there has been a miscarriage of justice Prosecution’s contention that the Trial must further establish “that the error was criti- Chamber had committed an error of fact by GEORGES ANDERSON NDERUBUMWE cal to the verdict reached by the Trial failing to find a nexus between the crimes for RUTAGANDA V. THE PROSECUTOR, CASE Chamber” and that “a grossly unfair outcome which Rutaganda was convicted and the armed NO. ICTR-96-3-A has resulted from the error.” conflict. The Appeals Chamber adopted the view of the International Criminal Tribunal for On May 26, 2003, the ICTR Appeals The Appeals Chamber assessed and reject- the Former Yugoslavia (ICTY) in the Kunarac Chamber rendered its judgement in Georges ed Rutaganda’s contention that his right to a Appeal Judgment that “if it can be established Anderson Nderubumwe Rutaganda v. The fair trial was violated due to bias on the part of . . . that the perpetrator acted in furtherance of Prosecutor. In December 1999, Rutaganda was the Trial Chamber in the treatment of his tes- or under the guise of the armed conflict . . . it found guilty by the Trial Chamber of partici- timony and during the examination and cross- would be sufficient to conclude that his acts pating in crimes committed during April to examination of witnesses. It also rejected were closely related to the armed conflict.” It June 1994 in the préfectures of Kigali and Rutaganda’s argument that the Trial Chamber explained that “‘under the guise of the armed Gitarama involving his distribution of had erred in finding that, in accordance with conflict’ does not mean simply ‘at the same weapons to members of the Interahamwe, his the test developed in the Akayesu Trial time as the armed conflict’ and/or ‘in any cir- direction of men under his control to detain Judgment, specific intent for genocide could cumstances created in part by the armed con- and then kill ten Tutsis, his direction and par- be inferred in part from the “general context of flict.’” Moreover, it emphasized that the find- ticipation in massacres at the École Technique the perpetration of acts by others.” In uphold- ing of such a nexus will usually require consid- Officielle (ETO school) and the Nyanza gravel ing the Akayesu approach, the Appeals eration of more than one of the factors high- pit, and his killing of Emmanuel Kayitare. For Chamber noted that it did “not imply that lighted in Kunarac, including “the fact that the these acts he was convicted of genocide and guilt of an accused maybe inferred only from perpetrator is a combatant; the fact that the crimes against humanity (murder and extermi- his affiliation with a ‘guilty organision,’” but victim is a non-combatant; the fact that the nation) and sentenced by the Trial Chamber to required a determination of an accused’s intent victim is a member of the opposing party; the a single term of life imprisonment. Rutaganda “on the analysis of his own acts and conduct” fact that the act may be said to serve the ulti- appealed against all his convictions and the at the time the crime was committed. It found mate goal of a military campaign; and the fact Prosecution appealed Rutaganda’s acquittal for that the Trial Chamber had determined that the crime is committed as part of or in the murder as a violation of common Article 3 to Rutaganda’s specific intent on the basis of his context of the perpetrator’s official duties.” the Geneva Conventions. The Appeals direct participation in specific crimes against Because the Trial Chamber had made factual Chamber set aside Rutaganda’s conviction for Tutsis and that this intent had been demon- findings recognizing a link between the ETO murder as crime against humanity for the strated beyond a reasonable doubt. school and Nyanza massacres and the armed killing of Emmanuel Kayitare, reversed his Except in regard to Rutaganda’s responsi- conflict, and had determined that Rutaganda acquittal for two counts of murder as violation bility for killing Emmanuel Kayitare, the Ap- had participated in these attacks, the Appeals of Article 3 common to the Geneva peals Chamber determined that all of his alle- Chamber held that no reasonable trier of fact Conventions, and affirmed the single sentence gations of errors of law and fact relating to the would have failed to make the “inferential of life imprisonment. assessment and treatment of evidence were un- leap” between Rutaganda’s acts and the armed In discussing the standard for appellate founded. As to the Kayitare killing, the Ap- conflict. It therefore overturned Rutaganda’s review, the Appeals Chamber affirmed that an peals Chamber rejected the Trial Chamber’s acquittal on two counts of violations of com- appeal was “not an opportunity for the parties finding that the testimonies of two witnesses mon Article 3 to the Geneva Conventions. to reargue their case,” but must be based on were corroborative of each other as to the cir- The Appeals Chamber did not re-evaluate “an error on a question of law invalidating the cumstances of the crime when they differed on the Trial Chamber’s sentence of life imprison- decision” or on “an error of fact that has occa- most material facts. Although corroboration of ment due to its determination that the revision sioned a miscarriage of justice.” Regarding an witness testimony is not a requirement under of the verdict did not affect the overall gravity of error of law, the party raising the allegation ICTR practice, the Appeals Chamber deter- the crimes or the factual basis of the sentence. must identify the alleged error, present support mined that, because it was required to “assess for the contention, and explain how the error the evidence presented at trial as an indivisible invalidates the decision. Regarding errors of whole” and could not substitute its own view PROSECUTOR V. ELIZAPHAN & GÉRARD fact, the Appeals Chamber must show a high of the evidence for that of the Trial Chamber, NTAKIRUTIMANA, CASE NOS. ICTR-96- level of deference to the Trial Chamber’s find- it “must enter a judgment of acquittal ‘if an ap- 10, ICTR-96-17-T. ings. Only when the Trial Chamber’s findings pellant is able to establish that no reasonable The Mugonero indictment addressed the of fact “could not have been accepted by any tribunal of fact could have reached a conclu- April 16th attack on Tutsis gathered in the reasonable person,” or when the evaluation of sion upon the evidence before it.’” Conse- Mugonero Complex in Kibuye Préfecture. the evidence is “wholly erroneous” may the quently, it overturned Rutaganda’s conviction The Complex was run by the Seventh Day Appeals Chamber substitute its own findings. for murder as a crime against humanity. Adventist Association and contained a nursing Published by Digital Commons @ American University Washington College33 of Law, 2005 1 Human Rights Brief, Vol. 12, Iss. 2 [2005], Art. 10 school, a chapel, and a hospital, as well as The Chamber consequently found it unneces- findings that Gérard participated in many other office and residential buildings. sary to consider the alternative charge of com- attacks, was associated with attackers, and pro- Elizaphan was a senior pastor at the Complex, plicity in genocide. cured munitions and other support for the and Gérard worked as a doctor at the attackers, the Chamber found that he knew the In requiring the same level of intent for Complex hospital. Most of the hundreds killings were part of a widespread and system- both aiding and abetting genocide and com- killed during the attack were unarmed Tutsi atic attack. mitting genocide, the Trial Chamber applied a patients and civilians who had sought shelter higher standard for aiding and abetting than Although the Trial Chamber had previous- during the recent violence in the area. The that required by the International Criminal ly determined that “many hundreds” of people Bisesero indictment addressed numerous Tribunal for Yugoslavia (ICTY) Appeals died in the attacks, neither Elizaphan nor attacks in the Bisesero area of Kibuye Chamber in the subsequent Krnojelac case and Gérard was found guilty of the crime against Prefecture over a period of several months, upheld by it again last year in Krstic. In Krstic, humanity of extermination. The Trial during which Interahamwe, gendarmes, sol- the Appeals Chamber did not require that the Chamber cited the Vasiljevic judgment of the diers, and civilians in convoys of vehicles accused share the principal actor’s specific ICTY for the proposition that even a “remote chased and shot at Tutsi refugees, killing hun- intent to commit genocide to be found guilty or indirect” contribution would be sufficient dreds. While chasing the refugees, many of of aiding and abetting genocide. It found that for a finding of responsibility for extermina- whom were survivors of the massacre at the “an individual who aids and abets a specific tion. Nevertheless, because only three of the Mugonero Complex, the attackers sang, intent offense may be held responsible if he individuals killed had been named or “[e]xterminate them; look for them every- assists the commission of the crime knowing described, it found “insufficient evidence as to where; kill them; and get it over with, in all the intent behind the crime.” Because proof of a large number of individuals killed as a result the forests.” specific intent to aid and abet genocide would of the Accused’s actions.” Comparatively, in its Regarding the charge of genocide, the Trial likely imply knowledge that the principle per- subsequent Niyitegeka decision, the Trial Chamber noted that Elizaphan drove armed petrators acted with the intent to commit Chamber found the accused guilty of extermi- attackers to the Complex and to areas in genocide, it does not appear that this jurispru- nation because of “his participation in attacks Bisesero where Tutsis were believed to be hid- dence would have impacted Elizaphan’s con- against Tutsi, and his acts of shooting at Tutsi ing, pointed out refugees who were attempting viction on this charge. refugees . . ., and his killing of . . . three per- to flee, and encouraged the attackers to “kill” sons.” Notably, in neither decision were more Elizaphan and Gérard were also charged and “exterminate” them. He also conveyed than three Tutsis killed during the attacks with conspiring with each other and with attackers to the Murambi Church and ordered “named or described.” Charles Sikubwabo to commit genocide. The them to remove the roof so that it could no Chamber found that Gérard attended meet- Elizaphan and Gérard were also found not longer be used as a hiding-place for the Tutsis, ings in which he participated in the planning guilty of the crime against humanity of “other thus facilitating the work of the attackers in of attacks and distributed weapons, but there inhumane acts.” The indictment charge hunting them down and killing them. The was no evidence that Elizaphan or Charles Gérard with inhumane acts for closing the Chamber considered “his position of authority Sikubwabo were present during any of those medical store, denying treatment to Tutsi in the community” in finding that his actions meetings. Since there was no proof that the patients, and cutting off supplies at Mugonero and presence at the scene of the attacks “con- accused had an agreement to commit geno- Complex. Elizaphan was charged with respon- stituted practical assistance and encourage- cide, both Elizaphan and Gérard were found sibility for Gérard’s acts “by virtue of his posi- ment, which substantially contributed to the not guilty of this charge. The Chamber noted tion as head of the Complex.” The Trial commission of the crime of genocide by these that to date the ICTR had convicted only one Chamber found, however, that the Prosecution attackers,” thus meeting the elements for aid- person of conspiracy to commit genocide, fol- had not proved that any of these alleged acts ing and abetting. The totality of this behavior, lowing a guilty plea. had taken place. Elizaphan and Gérard were together with Elizaphan’s knowledge that also charged with inhumane acts for the Tutsis were being targeted for attack, led the Elizaphan and Gérard were also both removal of the roof of the Murambi Church at Court to conclude that he had acted with the charged with crimes against humanity for acts Bisesero, which had deprived the refugees of a specific intent to commit genocide. After find- of murder, extermination, and “other inhu- place to hide. The Chamber found that ing Elizaphan guilty of aiding and abetting mane acts.” Although the Chamber had found Gérard did not have sufficient notice that he genocide, the Chamber held that the alterna- that there was a widespread and systematic was charged with removing the church roof. tive charge of complicity in genocide ceased to attack against the civilian Tutsi population at While Elizaphan had conveyed attackers to apply without discussing the relationship the Mugonero Complex on April 16th and in Murambi Church and ordered them to between these types of responsibility. Bisesero from April to June 1994, it did not remove the roof, thus facilitating “the hunting find that Elizaphan had “aided an abetted in The Chamber found Gérard guilty of com- down and killing of the refugees,” the Trial the planning, preparation and execution of a mitting genocide based on his participation in Chamber held that it had not been proved crime against humanity (murder).” Gérard was multiple attacks against Tutsi refugees, his that this act “resulted in serious physical or found guilty of the crime against humanity of killing of three named Tutsis, and his procure- mental suffering, or amounted to a serious murder for killing three people. The Chamber ment of ammunition and manpower for the attack on human dignity, of the refugees.” found that he shot and killed Charles attack on the Complex. These actions, togeth- The Chamber was also not satisfied that this Ukobizaba during the attack on the Mugonero er with his leadership (on at least one occasion) act met the threshold requirement for this cat- Complex, killed Esdras at a primary school, of attackers shooting at fleeing Tutsi refugees egory of crimes that it be “of similar serious- and shot and killed the wife of Nzamwita at during the Bisesero attacks, led the Chamber ness to other enumerated acts in the Article.” Muyira Hill. Given the Chamber’s previous to find that he had acted with genocidal intent. http://digitalcommons.wcl.american.edu/hrbrief/vol12/iss2/10 34 2 Rouleau et al.: Updates from the International Criminal Courts Gérard was charged with individual crimi- many of those killed in the attacks were his on April 7th and instructed them to “extermi- nal responsibility as a superior for genocide, own parishioners who had specifically sought nate the Tutsis.” Moreover, he commanded and complicity in genocide, and the crimes against his assistance in the hope that his intervention supervised such attacks. The Trial Chamber humanity of murder, extermination, and other could save their lives, Elizaphan was deemed to found that his words and deeds clearly showed inhumane acts. The Chamber found some evi- have abused the trust placed in him as a leader that he directed and participated in the killing dence that Gérard had taken charge of in the community. Nevertheless, the Chamber of Tutsis with the specific intent to destroy Mugonero Hospital during the time of the sentenced him to imprisonment for ten years. them as a group. As a result, it found Kajelijeli attack, and that he played a prominent role In considering the mitigating circumstances in responsible under both Article 6(1) of the during some of the attacks on Tutsis at Gérard’s case, the Chamber noted that he ICTR Statute for instigating, ordering, and aid- Bisesero. Nevertheless, it found that the assisted a number of Tutsi women and children ing and abetting genocide and under Article Prosecution had failed to prove that Gérard during April 1994. However, the Chamber 6(3) for the genocidal acts of his subordinates. had “effective control” over anyone participat- found it “particularly egregious that, as a med- The Trial Chamber dismissed the charge of ing in the attacks. ical doctor, he took lives instead of saving complicity in genocide without elaboration them.” The Chamber also took into consider- after finding that it was an alternative count Under the Bisesero indictment, both ation the fact that his crimes were committed arising out of the same factual allegations. Elizaphan and Gérard were charged with viola- with zeal, and that he attacked civilians even in tions of common Article 3 to the Geneva Despite Kajelijeli’s attendance at numerous the hospital in which he worked. Determining Conventions and of Additional Protocol II for meetings prior to 1994 during which the set- that the aggravating factors outweighed those committing “violence to life, health and phys- ting up of militia groups to fight the Rwandese in mitigation, the Chamber sentenced Gérard ical or mental well-being, in particular murder Patriotic Front (RPF) and their accomplices to imprisonment for 25 years. and cruel treatment of persons not taking an was discussed, his influence over the local active part in hostilities.” The Chamber stated Interahamwe from January-July 1994, his that the ICTR had never found anyone guilty THE PROSECUTOR V. JUVENAL KAJELIJELI, active participation in training the under this charge and cited the ICTY’s CASE NO. ICTR-98-44A-T Interahamwe prior to April 6, 1994, and his Vasiljevic Trial Judgment for the proposition On December 1, 2003, ICTR Trial leadership of a meeting on April 6th during that because “customary international law does Chamber II rendered its judgment and sen- which the killing of Tutsi was orchestrated, the not provide a sufficiently precise definition of tence in The Prosecutor v. Juvénal Kajelijeli. Trial Chamber determined that there was a crime under this provision,” it violates the Charges against Kajelijeli were based on his insufficient evidence that Kajelijeli was principle of nullum crimen sine lege (no crime responsibility for attacks against Tutsis of the involved in a conspiracy “from late 1990 without law). The provision addressed by the Mukingo, Nkuli, and Kigombe communes through about July 1994” to exterminate Vasiljevic holding is not identical to the one at during April 1994. The Trial Chamber found Tutsis. It found the evidence inconclusive as to issue in this case, however. Additionally, that Kajelijeli guilty of genocide, direct and public whether or not the extermination of Tutsis had holding referred only to the charge of “violence incitement to commit genocide, and extermi- been discussed at the meetings Kajelijeli to life and person” as a violation of the laws nation as a crime against humanity. It found attended prior to April 6th and as to whether and customs of war. The offence of murder as him not guilty of conspiracy to commit geno- the list of Tutsi names he had drawn up prior a violation of the laws and customs of war was cide and crimes against humanity (rape and to 1992 was for the purpose of identifying charged as a separate offence and found by the “other inhumane acts”), and dismissed the those to be eliminated. Moreover, it found no Vasiljevic Chamber to be “a well-defined crime charges of complicity in genocide and crimes evidence beyond a reasonable doubt that the under customary international law.” Notably, against humanity (murder and persecution). training of the Interahamwe had a genocidal the provision under which Elizaphan and He was sentenced to two terms of life impris- purpose prior to April 6, 1994. As a result, the Gérard were charged explicitly addressed vio- onment and one term of 15 years to be served Chamber found him not guilty of conspiracy lence that amounted “in particular” to murder concurrently. to commit genocide. and cruel treatment. The Ntakirutimana Trial As a former bourgmestre of Mukingo com- Because Kajelijeli provoked a crowd assem- Chamber, however, offered no additional rea- mune, Kajelijeli had considerable influence in bled at a market, including members of the sons for finding a lack of clarity in the defini- his community, which he used to act “as a Interahamwe, to kill and exterminate Tutsis, tion of the crime with which they were bridge between the military and the civilian the Trial Chamber found him guilty of direct charged. Nonetheless, the Chamber was also spheres in an effort to attack and massacre the and public incitement to genocide. It agreed not satisfied that all elements of the offence, civilian Tutsi population.” The Trial Chamber with the Akayesu Trial Judgment that an inciter including proof of the existence of a nexus found that he had effective control over the must have the specific intent to commit geno- between the alleged acts and the armed con- Interahamwe paramilitary forces in both cide, which it had already determined Kajelijeli flict, had been met. Mukingo and Nkuli communes during the to possess. Because the Trial Chamber did not At sentencing, the Chamber noted as miti- period when the attacks that formed the basis find that Kajelijeli’s subordinates themselves gating circumstances that Elizaphan was 78 of the charges against him took place. incited genocide, he was not found guilty of years old, was in poor health, and “was essen- Following the death of the President of Rwanda superior responsibility for this crime. tially a person of good moral character until on April 6th, 1994, he had arranged for the Kajelijeli was also charged with murder, the events of April to July of 1994 during Interahamwe to receive weapons and played a extermination, rape, persecution, and “other which he was swept along with many significant role in directing, organizing, and inhumane acts” as crimes against humanity Rwandans into criminal conduct.” The facilitating their participation in numerous based on a widespread attack against the civil- Chamber, however, considered these same fac- attacks against Tutsis. For example, he assem- ian Tutsi ethnic group in Mkingo, Nkuli, and tors to be aggravating circumstances. Because bled members of the Interahamwe at a market Published by Digital Commons @ American University Washington College35 of Law, 2005 3 Human Rights Brief, Vol. 12, Iss. 2 [2005], Art. 10 Kigombe communes. As a result of insufficient and the fact that his subordinates reported The Third Trial Session started on January evidence, the Prosecution withdrew and the back to him each day on their activities. For 11, 2005, at which time Sesay’s counsel indi- Trial Chamber dismissed the charge of perse- these reasons, she would have found him per- cated that his client wished to make a state- cution as a crime against humanity. The Trial sonally responsible for rape. ment to the Judges. The Judges were wary of a Chamber also dismissed the charge of murder potential obstruction of the proceedings, but The Trial Chamber likewise held that the as a crime against humanity after finding that allowed Sesay to make the statement. In his Prosecution had failed to prove beyond a rea- “there was insufficient distinction drawn in the statement, Sesay referred to the amnesty provi- sonable doubt Kajelijeli’s individual responsi- Indictment between the general allegations of sions in the Lomé Peace Accords, questioning bility for, presence during, or knowledge of murder as a crime against humanity and exter- the legality of the charges against him. The “other inhumane acts” as a crime against mination as a crime against humanity.” Judges found this impermissible and asked him humanity committed by members of Because the indictment did not specifically to cease. When Sesay refused to desist from Interahamwe under his control. The Chamber identify the victims whom Kajelijeli had been making his statement, Judge Thompson noted that inhumane acts must be similar in charged with killing, the Chamber decided it ordered him removed from the court. Sesay gravity to the other enumerated acts of crimes was more appropriate for it to consider evi- maintained that if he was not able to make his against humanity under the ICTR Statute and dence of individual killings as “examples of the statement, he would not attend proceedings. must “deliberately cause suffering.” Moreover, general targeting of populations or groups of Sesay and Kallon then both submitted written the Prosecution must prove a nexus between people for purposes of extermination, rather statements as evidence, after which neither the inhumane act and the suffering or serious than murder specifically.” It then found returned to the courtroom with their attorneys injury to the mental or physical health of the Kajelijeli guilty of extermination both individ- for further proceedings. victim. The Trial Chamber found that gross ually and as a superior for knowingly partici- acts of sexual mutilation by the Interahamwe of This case raised the issue of whether defen- pating, commanding, and ordering attacks women of Tutsi ethnicity, including the pierc- dants in the Special Court may be tried despite against whole neighborhoods and places of ing of a dead rape victim’s side and sexual their refusal to attend their hearings. Article refuge during which nearly the entire Tutsi organs with a spear, constituted a serious attack 17(4)(d) of the Statute of the Special Court populations of Mukingo, Nkuli, and Kigombe on the human dignity of the Tutsi community states that each accused has the right “to be communes had been eliminated. as a whole. The Chamber, however, found no tried in his or her presence, and to defend him- On the charge of rape as a crime against evidence that Kajelijeli had been present dur- self or herself in person or through legal assis- humanity, the Trial Chamber held that the ing such acts. Moreover, the Chamber said that tance of his or her choosing.” The Trial Prosecutor had failed to prove beyond a rea- it could not infer from either the evidence or Chamber interpreted this provision to obligate sonable doubt that Kajelijeli had “planned, the circumstances that Kajelijeli knew or had a court to try an accused in his or her presence. instigated, ordered, committed or otherwise reason to know that the Interahamwe were In doing so, the Trial Chamber cited Rule 60 aided and abetted the planning, preparation or committing such crimes. of the Rules of Procedure and Evidence of the execution of the rapes which the Chamber Special Court, which states that an accused found to have occurred.” Instead his instruc- RIGHT TO SELF-REPRESENTATION IN may be tried in his absence in only two specif- tions were, “in general, to kill or to extermi- INTERNATIONAL CRIMINAL COURTS: ic instances: (1) where an accused has made an nate.” Despite the testimony of several victims, PROSECUTOR V. ISSA HASSAN SESAY, initial appearance and has been afforded the the Trial Chamber found reasonable doubt as MORRIS KALLON, AND AUGUSTINE right to appear at trial but refuses to do so or to his presence at any of the rapes. GBAO (2) where, having made an initial appearance, Furthermore, although the Chamber deter- the accused is at large and refuses to appear in ON JANUARY 19, 2005, THE TRIAL CHAMBER mined that numerous rapes were committed court. Rule 60 also states that, in either case, of the Special Court of Sierra Leone (Special by Interahamwe under his control, it found it the accused may be represented by counsel of Court) issued its ruling on the Issue of the impossible to infer that Kajelijeli either knew his choice and that the matter may proceed if Refusal of the Accused Sesay and Kallon to Appear or had reason to know that the rapes were the Judge or Trial Chamber is satisfied that the for their Trial, in the case of Prosecutor v. Issa being committed. Judge Ramaroson dissented accused has waived his right to be present. Hassan Sesay, Morris Kallon, and Augustine based on what she considered to be credible Gbao. The three defendants are alleged to be In its July 13, 2004, ruling on the third witness testimony placing him at the scene of a part of the original five leaders of the former defendant, Augustine Gbao, who refused to rape, overhearing him order rape, and claiming Revolutionary United Front (RUF), whom the appear in court earlier that month, the Trial he asked for a woman to be delivered to him Special Court indicted for war crimes, crimes after he finished drinking at a bar. Ramaroson Chamber allowed the trial to continue without against humanity, and other serious violations also took into account testimony that placed Gbao’s presence but stated that an accused per- of international humanitarian law. The Special Kajelijeli’s at the scene of an attack when son should only be tried in his or her absence Court withdrew the indictments of the other Interahamwe announced to survivors that they in very exceptional circumstances. The Trial two alleged leaders, Foday Sankoh and Sam would be raped and have bottles placed in their Chamber balanced the need for defendants to Bockarie, after their deaths. The Special Court genitals. She argued that whether or not be present at their trials with the potential issued indictments for Issa Hassan Sesay and Kajelijeli heard this statement, it demonstrated obstruction of justice that would result if trials Morris Kallon on March 7, 2003, and the atmosphere at the scene and that the were delayed due to a defendant’s refusal to Augustine Gbao on April 16, 2003. The Trial Interahamwe ordered to kill by Kajelijeli also appear. The court stated, “an accused person Chamber ordered the joint trial of the three intended to rape. Moreover, his knowledge of charged with serious crimes who refuses to men and on February 5, 2004, prosecutors the rapes was demonstrated by his participa- appear in court should not be permitted to issued a consolidated indictment. The RUF tion in attacks during which rapes took place obstruct the judicial machinery by preventing trial began on July 5, 2004. http://digitalcommons.wcl.american.edu/hrbrief/vol12/iss2/10 36 4 Rouleau et al.: Updates from the International Criminal Courts the commencement or continuation of trials were directed at rebels, the use of force was dis- sively costly and time-consuming. With no set by deliberately being absent.” In light of the proportionate to the threat posed. The time frame to make a decision, it seems that fact that the accused were represented by coun- Commission recommended that the matter be the international community’s ideological fight sel and had made initial appearances before the referred to the ICC because it found that the over how to bring justice to the victims in court, the Trial Chamber concluded that they Sudanese government would not be able to Darfur is simply adding to the inconceivable had waived their rights to be present at their adequately address the problem. The injustices they have already suffered. trials. Thus, all three of the living defendants Commission stated that “the measures taken so were found to have waived their right to be far by the Sudanese government to address the INTERNATIONAL CRIMINAL COURT present at trial. crisis have been both grossly inadequate and ON JANUARY 7, 2005, PRESIDENT BOZIZÉ of ineffective, which has contributed to the cli- the Central African Republic (CAR) submitted INTERNATIONAL CRIMINAL mate of almost total impunity for human a referral to the Prosecutor of the International ACCOUNTABILITY FOR CRIMES IN rights violations in Darfur.” The Commission Criminal Court (ICC) for crimes committed DARFUR went on to say that “very few victims have on CAR territory since July 1, 2002, when the ON FEBRUARY 1, 2005, A REPORT by a UN- lodged official complaints regarding crimes Rome Statute came into force. Intervention by appointed Commission of Inquiry into inter- committed against them or their families, due the ICC may prove unnecessary, however, if national crimes in Darfur, Sudan, released its to a lack of confidence in the justice system.” the CAR implements internal changes to findings to the public. Among other responsi- Additionally, the Commission recom- address these crimes. Regardless of whether the bilities, the five-person Commission was mended the establishment of a reparations sys- ICC prosecutes these crimes, measures must charged with determining whether genocide tem for the victims of the crimes, whether or still be taken to stop the on-going violence and was occurring in Sudan’s Darfur region. The not perpetrators have been identified. The to prevent further human rights violations in Commission concluded that the Sudanese gov- Commission also gave Secretary-General Kofi the CAR. As it stands, on January 20, 2005, ernment and the Janjaweed militia were re- Annan a sealed file of names of persons ICC President Phillippe Kirsch (Canada) sponsible for serious violations of international believed to be responsible for the crimes. This assigned the situation to Pre-Trial Chamber law and strongly recommended that the Secu- list would eventually be given to the ICC pros- III, over which judges Hans-Peter Kaul rity Council refer the matter to the Interna- ecutor if the situation is referred. Annan stated (Germany), Tuiloma Neroni Slade (Samoa), tional Criminal Court (ICC). Nevertheless, af- that although his support for the ICC was well and Sylvia Steiner (Brazil) preside. ter finding that “the crucial element of genoci- known, a potential referral to the ICC was a dal intent appears to be missing,” the Commis- Since 2000, the UN has promoted a peace- decision for the Security Council. sion concluded that the Government of the ful transition in the CAR through its Peace- Sudan “has not pursued a policy of genocide.” A Security Council referral on the situation building Office (BONUCA) to help the Because Sudan is not a party to the Rome in Darfur to the ICC is quite controversial. nation recover from decades of armed conflict. Statute of the ICC, a Security Council referral The United States, in the face of strong The Central African Republic broke from is required for the court to have jurisdiction European opposition, is heavily lobbying the French colonial rule in 1960 when David over the crimes committed in Darfur. Security Council to avoid referring the matter Dacko, its brutal dictator, rose to power. Jean- In its report, the Commission of Inquiry to the ICC, a campaign that reflects the Bush Bédel Bokassa then overthrew Dacko and emphasized that, although the government was administration’s stance against the tribunal. ruled the CAR until a French-initiated coup in not pursuing a genocidal policy, this should The Bush administration fears the ICC may 1979 restored Dacko to power. The country not detract from the gravity of the crimes per- bring frivolous prosecutions against American underwent a series of violent coups from 1981 petrated. The Commission found that soldiers and civilians abroad. In addition to the to 2003, the most recent of which saw the Sudanese government forces and militia “con- Secretary General’s vocal support, a majority of overthrow of President Ange Félix Patassé by ducted indiscriminate attacks, including the 15 members of the Security Council is the current President François Bozizé, but offi- killing of civilians, torture, enforced disappear- known to favor referring the matter to the cially became a democracy in 1993. An ICC ances, destruction of villages, rape and other ICC. This poses a dilemma for the United referral would address the wide range of crimes forms of sexual violence, pillaging and forced States, which has demanded accountability committed in the Central African Republic displacement.” The Commission also found and sanctions against the Sudanese authorities, since July 1, 2002. substantial evidence that rebel forces were but which also opposes the ICC. Despite recent progress, controversy responsible for war crimes, including murder The proposed alternative, as suggested by surrounds the March 2005 elections in the of civilians and pillage. Since Sudanese rebels Pierre-Richard Prosper, the United States CAR, renewing the threat of instability. On took up arms in 2003, tens of thousands of Ambassador-at-Large for war crimes, is to refer December 30, 2004, the Transitional Constitu- people have been killed and up to 1.85 million the Darfur charges to a new African war crimes tional Court disqualified 10 out of the 15 presi- others are internally displaced or are now tribunal to be based at the headquarters of the dential candidates for failing to deposit the refugees in neighboring Chad. International Criminal Tribunal for Rwanda in required $10,000, failing to own property Although the Commission did not find Arusha, Tanzania. The UN and the African within their constituencies, submitting fraud- genocidal intent, it determined that the attacks Union would jointly administer this new ulent documents to the electoral commission, were launched for counter-insurgency purpos- court. Both the Commission of Inquiry and misappropriating public funds, or committing es and were “deliberately and indiscriminately human rights groups have expressed concerns, human rights violations. The court specifically directed against civilians.” Even when attacks however, that this alternative would be exces- denied candidacy to former president Ange

Published by Digital Commons @ American University Washington College37 of Law, 2005 5 Human Rights Brief, Vol. 12, Iss. 2 [2005], Art. 10 Félix Patassé, members of his cabinet, and EAST TIMOR East Timor are expected to finalize the Truth members of his political party, the Mouvement ON DECEMBER 23, 2004, INDONESIA AND and Friendship Commission’s framework and de Libération du Peuple Centrafricain. President EAST TIMOR agreed to establish a Truth and implementing mechanism in early 2005. Bozizé attempted to overturn the court’s Friendship Commission to investigate human Although the Truth and Friendship decision by authorizing additional candidates rights abuses and address the 1,500 murders Commission is modeled after established Truth pursuant to Article 22 of the CAR’s new committed in the aftermath of the 1999 East and Reconciliation Commissions such as that Constitution, which allows the president to Timorese referendum on independence from in South Africa, it has been criticized for focus- ensure “the regular functioning of the public Indonesia. The announcement came on the ing more on strengthening the economic powers and continuity - of the state.” The court heels of increased international advocacy for an friendship between East Timor and Indonesia denies Bozizé’s authority to overrule it. independent and impartial commission to than on combating impunity. In a statement to Secretary-General Kofi Annan’s latest review the work of the ad hoc human rights tri- Kofi Annan, the International Federation for report on the situation emphasized the impor- bunal in Jakarta and the Special Panels for East Timor, an organization which promotes tance of consensus and legitimacy in the CAR’s Serious Crimes in East Timor. The United human rights in East Timor, contends that the democratic process. Annan praised the referen- States proposes that this Truth and Friendship Truth and Friendship Commission would only da establishing the new transitional constitu- Commission coordinate its investigation with advance the status quo because “a bi-national tion (December 5, 2004) and the draft elec- a UN-backed Commission of Experts. commission will just be another mechanism toral code that was voted on in February 2005. In 2000, Indonesia established an ad hoc for Indonesia to bully its smaller, weaker Security Council President César Mayoral tribunal in Jakarta to prosecute police and mil- neighbor.” Timorese rights activists, moreover, (Argentina) recently voiced his confidence in itary officers who participated in the murders question the strength of this commission, fear- the CAR’s movement toward constitutional and forced relocation of 275,000 people in ing that it will deny justice to victims and their legitimacy and the rule of law. East Timor during Indonesian control. While families because it focuses on lower offences, lacks authority to punish crimes, and stresses In line with this optimism, ICC Prosecutor the ad hoc court has convicted six out of 18 forgiveness. Many victims are concerned that Moreno-Ocampo may opt against a formal suspects, it eventually reversed five convictions they will be forced to forgive the perpetrators ICC investigation. The Prosecutor must first on appeal, with an appeal of the sixth still and will be denied the opportunity to prosecute determine whether the CAR satisfies the crite- pending. This situation has raised doubts them. At the same time, East Timor must con- ria set forth in the Rome Statute. Specifically, about the court’s effectiveness and impartiality. sider the reasons for moving forward with the he must assess the existence of national pro- The UN-supported Special Panels for Serious establishment of the Truth and Friendship ceedings in the CAR, the gravity of alleged Crimes in Dili, in comparison, have indicted Commission, as it depends on a sound relation- offenses, and the interests of justice. The ICC almost 400 people and convicted 72 lower ship with Indonesia for a vast majority of its is a court of last resort, aiming to complement, level offenders. Most of the senior officers imports and for its border security. The mecha- rather than supplant, national systems. If the responsible for human rights violations have nism by which the Truth and Friendship Prosecutor determines that the CAR is already sought refuge behind a shield of impunity in Commission will facilitate the telling of peo- undertaking a credible investigation of the Indonesia, however. Both tribunals have so far ples’ stories remains unclear. HRB alleged crimes, the ICC may defer to the failed to meet the objectives of UN Security national legal system. Council Resolution 1272, which calls for “all Nicolas M. Rouleau, an LL.B. candidate at the those responsible for such violence [to] be University of Ottawa, Faculty of Common Law, French An ICC investigation may be viewed as brought to justice.” Section, and a visiting student at the Washington College problematic because the court cannot investi- of Law, wrote the Rutaganda case summary for the gate crimes that occurred prior to the Rome As a result of international pressure, the Human Rights Brief. Statute’s inception in July 2002. Human rights UN created a Commission of Experts to inves- Annelies Brock, a J.D. candidate at the Washington tigate the impartiality and independence of College of Law, wrote the Ntakirutimana case summary advocates support a long-term action plan that for the Human Rights Brief. would punish all grievous violations, regardless prosecutions in the ad hoc court in Jakarta and the effectiveness of Special Panels for Serious Daisy Yu, a J.D. candidate at the Washington College of of when they occurred and regardless of the Law, wrote the Kajelijeli case summary for the Human suspect’s nationality. This plan would require Crimes in Dili. The three experts named in Rights Brief. February 2005 are Justice Prafullachandra the CAR to implement legislation that incor- Anne Heindel, Assistant Director of the War Crimes porates into national law those crimes already Bhagwati of India, Professor Yozo Yokota of Research Office at the Washington College of Law, edited all of the ICTR case summaries. codified in the Rome Statute and other inter- Japan, and Shaista Shameem of Fiji. The national human rights treaties. establishment of the Commission of Experts Mario Cava, a J.D. candidate at the Washington College of Law, covers the ICC and East Timor for the Human has been well received by human rights advo- Rights Brief. The CAR now has an opportunity to cates. Indonesian Foreign Minister Wirajuda, demonstrate its commitment to addressing Tejal Jesrani, a J.D. candidate at the Washington College however, is promoting the Truth and of Law, covered the Situation in Darfur and the Right to the atrocities that accompanied years of Friendship Commission as an alternative. Self-Representation in International Criminal Courts for political instability. Regardless of whether the Both Wirajuda and East Timorese Foreign the Human Rights Brief. ICC prosecutes these crimes, human rights Minister Jose Ramos Horta agree that imple- groups implore the CAR government to take menting both commissions would be redun- action to prevent further attacks against civil- dant, and they tout the Truth and Friendship ians by the Bozizé government and Patassé’s Commission as an opportunity to bring a res- opposition forces. olution to the 1999 atrocities. Indonesia and http://digitalcommons.wcl.american.edu/hrbrief/vol12/iss2/10 38 6