Opinio Juris

The Prosecutor of the International Criminal Tribunal for Rwanda (ICTR) when presenting last week his motion in favour of transfer of genocide accused Yusuf Munyakazi to Rwanda, clearly distanced himself from the Non Governmental Organisation (NGO) Human Rights Watch (HRW), on which, however, the UN Court has relied on for the last 14 years for expert testimony.

Presenting his arguments before the Chamber, the prosecutor accused HRW of lack of credibility and having confused the collection of information on the violations of human rights in general and international criminal proceedings in an apparent attempt to rebuff HRW's contention not to send 1994 genocide accused persons to stand trials in Kigali.

He also affirmed that the HRW's sources were in fact "inadmissible and not very reliable".

Since the first indictment presented at the ICTR, the Office of the Prosecutor (OTP) has relied mainly on the collective investigation carried out by HRW and the book titled "Leave None to Tell the Story", which it presents as evidence in the majority of the trials.

The prosecution, moreover, has called in almost every trial as an expert witness, Dr Allison des Forges, official in charge of Africa for HRW, who is also a historian and specialist in Rwanda.

Responding to the Prosecution's allegations, Ms Reidy informed the Chamber of their systematic compilation of reports, method applied and categories of people interviewed in their investigations of the Rwandan judicial system.

For example, among people questioned, she affirmed, were four current or former ministers of justice, 14 current or former judges, 11 current or former prosecutors, three current or former bar association presidents, 15 national or international NGO representatives and more than 100 Rwandan victims of various abuses of the legal system.

Said SALC Director Nicole Fritz on Sunday: "The intention behind the initiative is both to ensure some form of accountability for the people of Zimbabwe at a time when their own justice system has all but collapsed and also to secure South Africa's interest against becoming a 'safe haven' for perpetrators of the most egregious international crimes."

South Africa's implementation of the Rome Statute of the International Criminal Court Act, No 27 of 2002, permits prosecutions for crimes against humanity of those who are not South African nationals or have not committed such crimes on SA's territory if such a person after the commission of the crime, is present in South Africa.

Several of the perpetrators named in the dossier travelled to South Africa on official business, in some instances for co-operative endeavours such as the South Africa/Zimbabwe Joint Permanent Commission on Defence and Security.

Moreover, given Zimbabwe's economic collapse, many of those named travelled to South Africa to obtain desired commodities and services, including healthcare, Fritz said.

“First of all, this protocol which has been signed is a very important protocol because it deals with important issues like handling impunity. And we hope that after that the remaining agendas are not so difficult. This is the ceasefire and then the DDR, this is demobilization and disarmament, and the reintegration. So the protocol that has been signed is very, very important. Accepting to be subjected to laws is a major achievement, and we hope that we shall be seeing a positive conclusion of the peace talks in the nearest future,” she said.

Nankabirwa said the new agreement paves the way for those accused of severe crimes would be tried in the High Court of Uganda while those accused of lesser crimes would face the northern Uganda traditional justice system know as Mato Oput.

“First of all the crimes differ. There are small crimes which will be handled by the traditional judicial system, and we shall come up with a layout of the traditional judicial system to handle reconciliation and accountability. But the other crimes, like the war crimes, are normally handled by the High Court. So what the teams have done is append their signatures on exactly that so that at the end of the day there are some in the LRA who will appear before the High Court because of their crimes,” Nankabirwa said.

Museveni said Joseph Kony, the LRA leader, and his commanders will instead be brought before "traditional" Ugandan courts - which emphasise apologies and compensation rather than punishment - as part of a deal to end a 21-year civil war marked by the abduction of children as combatants, mass rape of women and the mutilation and murder of civilians.

Museveni said local trials were the wish of the victims and leaders in the areas hit by the conflict.

"What we have agreed with our people is that they should face traditional justice, which is more compensatory than a retributive system," he said on a visit to London. "That is what we have agreed at the request of the local community. They have been mainly tormenting people in one area and it is that community which asked us to use traditional justice."

[R]espondents across the three sub-regions described the need for different levels of transitional justice processes to address different levels of perpetrators and crimes. Local practices, they argued, were appropriate only for the cleansing and reintegration of low-level perpetrators. In discussing the use of local practices, a male victim of violence in Lango said, “We can forgive the rest but top officials involved in the war crimes should be taken to court.” Most Langi and Iteso respondents opposed the use of practices for major perpetrators, such as senior Government or LRA figures, whom they argued should be prosecuted through court structures, including the ICC. “Prosecution by the international court is applicable for high ranking war perpetrators like Museveni and Kony,” said an LDU member in Teso. Two parents of abducted children in Lango said, “Kony must be taken to the ICC….Museveni should also be tried by the ICC.” Some abductees and their relatives in Acholiland argued along these same lines, underlining their desire to distance abductees from the rebel commanders who forced them to commit atrocities and who therefore, they argued, should be prosecuted.

The office of the prosecutor of International Criminal Court Thursday insisted arrest warrants for Lord's Resistance Army, or LRA, rebels in Uganda remain in effect following news Kampala has agreed to set up national courts to handle LRA crimes.

"The office of the prosecutor is not a party to the peace process," the office said in a statement. "The arrest warrants against the LRA commanders were issued by the court and remain in effect."

I would say it's like — as I explained to this fellow here — that one of the lessons of the genocide in Rwanda was to take some of the early warnings signs seriously.

Secondly, a clear lesson I learned in the museum was that outside forces that tend to divide people up inside their country are unbelievably counterproductive. In other words, people came from other countries — I guess you'd call them colonialists — and they pitted one group of people against another. And an early warning sign was — and it's hard to have seen it, I readily admit, but I'm talking earlier than 1994, and earlier than the '90s — was the fact that it become a habit to divide people based upon — you know, in this case, whether they were Tutsi or Hutu, which eventually led to exploitation.

Belgian colonial administrators took a liking to the Tutsi, whom they treated preferentially. This angered the majority Hutu. In 1933, the Belgian colonial administration passed a law requiring every Rwandan to carry an ethnic identity card. The lines between Tutsi and Hutu, which traditionally had been porous and informal, suddenly became permanent and legalized. The ethnic identity card requirement persisted after Rwandan independence in 1960. Tragically, the continued presence of this requirement accelerated the genocide, insofar as persons unable to produce a Hutu card simply were slaughtered.

The bulk of the peacekeeping effort fell upon the shoulders of the United Nations Assistance Mission in Rwanda (UNAMIR). This was headed by a Canadian, Lt. Gen. Romeo Dallaire, and was constituted by soldiers from several countries. UNAMIR had been present in Rwanda prior to and during the genocide. It's size was reduced in early 1994 with the murder, by Hutu extremists, of a number of Belgian peacekeepers, which prompted the withdrawal of the remaining Belgians. UNAMIR, despite brave and dedicated efforts, was understaffed and crimped by extremely tight rules of engagement that prevented it from fighting back against the genocideal killers or intervening more directly.

Dallaire bluntly has stated that the international community lacked the will to intervene decisively in Rwanda. Although Dallaire communicated to senior UN officials the intelligence he had received from informants well ahead of time that genocide was being planned in Rwanda, institutionally speaking the United Nations remained unmoved. The execution of the actual genocide corresponded closely to what Dallaire had been told months in advance would take place. Dallaire's requests for more forces, better equipment, and a more aggressive mandate went unheeded.

Tragically, over a decade later, dithering now is occurring with regard to peacekeeping and peace-enforcement intervention to mitigate atrocity in the Darfur region of the Sudan.

Mathieu Ngudjolo Chui, a Congolese national and alleged former leader of the National integrationist Front (FNI) and currently a Colonel in the National Army of the Government of the Democratic Republic of the Congo [Forces armées de la RDC/ Armed Forces of the DRC ] (FARDC), was arrested yesterday by the Congolese authorities and transferred to the International Criminal Court (ICC). He will be arriving today to the Detention Centre of the Court, in The Hague. Mathieu Ngudjolo Chui is alleged to have committed crimes against humanity and war crimes as set out in articles 7 and 8 of the Statute, committed in the territory of the Democratic Republic of the Congo since July 2002.

The Pre-Trial Chamber I found that there were reasonable grounds to believe that Mathieu Ngudjolo Chui, as the highest ranking FNI commander, played an essential role in designing and implementing an indiscriminate attack against the village of Bogoro, in the territory of Ituri, on or around 24 February 2003.

The Chamber also found that there were reasonable grounds to believe that during and after the attack on the village of Bogoro against civilians, primarily of Hema ethnicity, with the active participation of children under the age of fifteen years, several criminal acts were committed: the murder of about 200 civilians; causing serious bodily harm to civilians; arresting, threatening with weapons and imprisoning civilians in a room filled with corpses; pillaging; sexual enslavement of several women and girls.

The Chamber further found that there were reasonable grounds to believe that a common plan to carry out an attack on Bogoro was agreed upon by Ngudjolo Chui and other senior FNI and FRPI (Force de résistance patriotique en Ituri/ Patriotic Resistance Force in Ituri) military commanders, and that the criminal acts committed during and after the attack were part of the common plan or, were, at the very least, a probable and accepted consequence of the implementation of the said common plan.

Again, according to the Chamber, there were reasonable grounds to believe that the attack on the village of Bogoro took place in the context of an armed conflict in the territory of Ituri, and that the attack was jointly launched by the FNI and the FRPI as part of a systematic or widespread attack directed against the civilian population of certain parts of the territory of Ituri, primarily of Hema ethnicity, between January and at least March 2003.

Just days ago it was a different story for Ngudjolo, a former nurse from Bunia whom ICC prosecutors accuse of six counts of war crimes and three of crimes against humanity in connection with an attack on a village in Ituri. He and two other top rebel leaders from Ituri were in the capital to undergo military training after agreeing to demobilise as paramilitaries and accept jobs as colonels in the regular army.

All three have been accused of war crimes, and the idea that they should simply be incorporated into the DRC military with apparent impunity was controversial both in the country and abroad.

Human rights activists applauded Ngudjolo’s arrest, saying it sent an important signal to those in Congo who consider themselves untouchable.

"We have condemned this cycle of impunity in the DRC whereby warlords - instead of being prosecuted for the crimes they committed against civilians - are being promoted. It has been a common practice in Congo to reward war criminals with positions in the army," said Geraldine Mattioli from Human Rights Watch.

"It sends the wrong signal to warlords – that committing crimes is a good way to get to the top of the army."

• The ICTR announced that it will miss its 2008 deadline for completing its trial phase. According to the Tribunal's spokesman, at least one trial will not be finished by the end of the year. The ICTR intends to refer the case to Rwanda.


• The ICTR publicly praised Rwanda's gacaca courts: "Gacaca courts have done a lot of tremendous work. They have helped in bringing justice and reconciliation in Rwanda because they are based on Rwandan tradition." Unfortunately, nothing could be further from the truth. As I discuss in my recent review essay of Mark Drumbl's excellent Atrocity, Punishment, and International Law, gacaca courts are unfair, have lost whatever social legitimacy they might have initially possessed, and bear no resemblance to traditional Rwandan dispute-resolution mechanisms.


• In related news, Rwanda intends to continue to use gacaca courts in 2008, despite the fact that their legal mandate ended on December 31, 2007. Even worse, Rwanda wants the gacaca courts to begin trying Category 1 cases, those involving the planning or organizing of killings. Such serious crimes were formerly the province of Rwanda's ordinary criminal courts — themselves troubled, but certainly more fair than the gacaca courts.


• Rwanda is angry with the ICTR for referring Wenceslas Munyeshyaka and Laurent Bucyibaruta to France for prosecution. Rwanda wants the two men extradited instead. The ICTR's decision should come as little surprise, however, given that a Rwandan military tribunal has already sentenced Munyeshyaka in absentia to life imprisonment.


• Rwanda is also angry at a French appellate court for refusing to extradite, on procedural grounds, Dominique Ntawukuriryayo to the ICTR. A lower court had previously approved the extradition. Ntawukuriryayo's case will now return to the lower court for reconsideration.


• In an important legal first, the ICTR sentenced a prosecution witness to nine months imprisonment for committing perjury during the trial of Jean de Dieu Kamuhanda, who is serving two life sentences for his role in the 1994 genocide. No word as to whether the conviction will affect Kamuhanda's sentences, which were upheld by the Appeals Chamber in 1995.


• An ICTR investigator working as part of Father Emmanuel Rukundo's defense team has been detained by the Rwandan government for the past six months for allegedly bribing witnesses and "trivializing" the 1994 genocide. Although such detention is clearly inconsistent with Article 29 of the ICTR Statute's immunity provisions, the ICTR has ignored repeated defense requests to intervene on the investigator's behalf.


• The human-rights NGO African Rights has alleged that an ICTR employee who works in the documentation center was himself involved in the 1994 genocide. African Rights has also accused the employee of intimidating witnesses into refusing to testify against Father Hormisdas Nsengimana, currently on trial at the ICTR.

The commission was established along similar lines to South Africa's post-apartheid body.

Since 2003, Liberia has inched forward, helped by the presence of thousands of peacekeeping troops.

The conflict saw the rise and fall of Charles Taylor, who is now on trial for war crimes in The Hague.

[snip]

Opening proceedings, Mrs Johnson-Sirleaf called on Liberians to be honest and truthful to "help the process of healing".

"We call upon all officials of government; all Liberians, the president included, to respond to the Truth and Reconciliation Commission when called to do so, thereby obviating the need for the TRC to use its subpoena powers," she said.

The seven-member commission does not have the power to try cases but will investigate crimes; and victims, witnesses and alleged perpetrators will tell their version of events at the hearings.

In recent months the commission has taken statements from people around the country - some of them extremely gruesome testimonies of how lives were shattered as men, women and children with guns and crude weapons targeted civilians.

The first of three witnesses that appeared at the opening hearing described how his sister had died in 1995 after being raped by a group of 25 rebel fighters.

A Baptist minister then alleged that rebel forces had destroyed his church when they entered the capital, Monrovia, in 2003, and used other church buildings to store their arms.

The last witness accused rebels in 1990 of killing his father, a Supreme Court judge.

Congolese activists have launched an appeal at the International Criminal Court (ICC) to prosecute those in their country who use rape as a weapon of war.

"Why does the ICC judge (militia chief) Thomas Lubanga for enrolment of child soldiers, but not for committing sexual crimes?" said Chouchou Namegabe, who represents 50 human rights groups in eastern Democratic Republic of Congo.

"This comes as a real shock for Congolese women," she said from the court's home in The Hague on the occasion of Human Rights Day on Monday.

[snip]

Congolese NGOs accuse all sides of using "systematic rape" against women aged from three months to 90 as a war tactic to intimidate the enemy, and are demanding the ICC enlarge its investigations to include sexual violence.

Namegabe told the story of a woman living near Bukavu who was raped by seven Hutu militiamen in front of her five children and her husband.

They then killed her husband and forced her eldest son to rape her, before forcing her to eat the flesh of her dead children and using her as a sex slave.

"The women do not dare to go into the fields any more for fear of being raped, and those who are raped are thrown out by their husbands, and they cannot tend to the needs of their families any more," added Kamuntu.

"The consequences are terrible: rural exodus, poverty and an increase in sexually transmitted diseases," she warned. "The trivialisation of rape is terrifying, as women represent 70 per cent of the victims of conflict in the DR Congo," International Federation of Human Rights (FIDH) President Souhayr Belhassen said in Paris.

During five years of armed conflict in the Democratic Republic of Congo (DRC, or Congo), tens of thousands of women and girls1 were raped or otherwise subjected to sexual violence. Victims whose cases Human Rights Watch documented were as young as three years old. In a number of cases men and boys were also raped or sexually assaulted. The World Health Organization investigated the incidence of rape in the two provinces of South Kivu and Maniema and in the two cities of Goma (North Kivu province) and Kalémie (Katanga province) and concluded that some forty thousand persons had been raped.

Combatants of most armies and armed groups in eastern Congo committed acts of sexual violence both before and after the establishment of the transitional government. Alleged perpetrators include fighters of the former rebel movements, the RCD-Goma, the MLC, and RCD-ML, and soldiers of the former national army, the FAC, now all supposedly part of an integrated Congolese army. Perpetrators also include combatants of local armed groups, Mai Mai (groups resisting outside control), Burundian and Rwandan Hutu armed groups, and the ethnically-based UPC and FNI based in Ituri. Civilian and military judicial authorities and leaders of armed groups rarely punished perpetrators of these crimes. On occasion military commanders and the heads of armed groups seem to have encouraged the use of sexual violence as a way to terrorize civilians.

According to estimates by the United Nations, in the past six years more than 60,000 people have been slaughtered in Ituri alone. This reality requires that those responsible for the most serious crimes are brought to justice. As you are aware, the UPC, which Mr. Lubanga led, has committed numerous other serious crimes in Ituri including murder, torture and sexual violence. For example, in February-March 2003, UPC militias carried out a large-scale military operation called “Chikana Namukono” against the villages located between Lipri and Nyangaraye. The operation, a veritable manhunt, resulted in the killing of at least 350 persons and the complete destruction of 26 localities.

We are disappointed that nearly two years of investigation by your office in the DRC has not yielded a broader range of charges against Mr. Lubanga. Charging those responsible for the most serious crimes committed in Ituri - including, but not limited to Mr. Lubanga - with representative crimes for which there is a strong evidentiary basis is crucial for the victims of these crimes and for ending the culture of impunity in the DRC and in the Great Lakes region. We believe that the failure to include additional charges in the case against Mr. Lubanga could undercut the credibility of the ICC in the DRC.