Working together to Prosecute Human Rights Criminals: an insider account of the relationship between human rights organizations and the

International Criminal Tribunal for RwandaMartin Seutcheu

The rise and diffusion of human rights norms and conventions was one of the truly great achievements of the last century and the United Nations was at the epicenter of that process1. Prior to the emergence of an international criminal justice system, however, there was a great deal of frustration among human rights activists and scholars, as many perceived the international human rights system as norms without the force of law, characterized by the lack of a credible enforcement mechanism2. The establishment of ad hoc tribunals, special tribunals, the development of universal jurisdiction in certain countries and the creation of the International Criminal Court have generated new hope and given the human rights movement a new avenue of expression3. We are now in the position to hold some gross human rights abusers accountable and to provide victims the opportunity to exercise their right to a judicial remedy. Although we still have a long way to go before all the worst abusers see their day in court, a framework for an effective international justice system is now increasingly visible4.

Nevertheless, prosecuting genocide, crimes against humanity and war crimes is a tough challenge and a heavy duty for an international criminal tribunal. It is a journey into the heart of darkness; the crimes are massive, both in terms of the number of victims and the number of perpetrators5. There is a great deal of complexity in this undertaking with no equivalent in any national judicial system and with little precedent to guide the work. Furthermore, international criminal tribunals are not rooted in an established state system and are merely operating in an institutional vacuum.

In order to succeed in investigations of this magnitude and sensitivity, it is indispensable to explore a wide range of avenues, to develop cooperative interaction with key actors, such as governments, inter-governmental and non-governmental organizations. Reconciling the need for independence and impartiality of a judicial body with the deeply interdependent and dynamic nature of its operations, which requires a

Sub-regional Coordinator for East Africa, Office of the United Nations High Commissioner for Human Rights in Geneva and former Special Assistant to the Director of Investigations of the Office of the Prosecutor of the International Criminal for Rwanda. The views expressed herein are only those of the author in his personal capacity and do not necessarily represent those of the United Nations. An early draft of this article was presented during the 2003 ACUNS/ASIL Workshop on “Human Rights: Issue Linkages and the New Human Rights Agenda” organized by the Academic Council on the United Nations System and the American Society for International Law at Yale University from 27 July 2003 to 7 August 2003. The author wishes to express his gratitude to Professor Dinah L. Shelton and Allison Corkery for their valuable comments.

certain level of openness of the judiciary system, has proven to be one of the greatest challenges faced by the globalization of criminal justice.

This article assesses and evaluates the interaction between human rights organizations and the International Criminal Tribunal for Rwanda (ICTR). What has been the contribution of human rights organizations to the work of the ICTR? What are the good practices and lessons learned from successes and challenges of the collaboration between the ICTR and human rights organizations?

By human rights organizations we mean a diversity of actors dealing with the protection and the promotion of human rights, ranging from intergovernmental organizations (IGOs) to non-governmental organizations (NGOs) at both the domestic and international levels. Among these IGOs are institutional actors such as the United Nations High Commissioner for Human Rights and the United Nations High Commissioner for Refugees. Some of the NGOs targeted in this research are Human Rights Watch, Amnesty International, the Coalition for Women’s Human Rights in Conflict Situation, African Rights, Physicians for Human Rights, IBUKA and AVEGA. Human rights criminals in this study are the perpetrators of gross human rights violations such as genocide, crimes against humanity and war crimes6.

The International Criminal Tribunal for Rwanda was established by the Security Council, acting under Chapter VII of the Charter of the United Nations, by resolution 955 (1994) of 8 November 1994, for the sole purpose of prosecuting 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 neighboring states between 1 January and 31 December 19947.

This article argues that human rights organizations are stakeholders and actors of the judicial system of the ICTR. They have played an important role in the work of the Tribunal in delivering the volumes of testimony and evidence collected by their investigators and researchers, serving as expert witnesses and advisers, and in helping to generate financial support and the political pressure necessary for the arrest of suspects and accused persons all over the world.

The function of NGOs has evolved from information providers to a more proactive role including aggregating and channeling demands and expectations for justice from victims and the international community at large. The Akayesu case represents the ideal type of cooperation between the ICTR and the NGO community. The synergy and cross-fertilization between the work of both domestic and international human rights NGOs and the Tribunal yielded remarkable success. NGOs succeeded in shaping the output of the ICTR and a policy decision was taken to investigate and prosecute sexual violence crimes as an integrate part of prosecuting genocide, crimes against humanity and violations of common Article 3 of the Geneva Conventions, in Rwanda.

This study demonstrates that the judicial system of the International Criminal Tribunal for Rwanda is operating within a peculiar environment with which it interacts. That environment is at once domestic (Tanzania, Rwanda) and external (Africa, the rest of the world). Human rights organizations are actors and key constituencies located in the

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environment of the judicial system of the ICTR. With their input, they are useful sources of demands and support for the Tribunal. Their views and concerns are sometimes taken into consideration during the decision making process by the Tribunal. Human rights organizations also provide important feedback on the work of the Tribunal trough their monitoring and reporting activities. However, there are significant limitations that human rights organizations faced as most of them do not use the methodological tools needed for criminal investigations. There is a need for a greater methodological convergence in order to strengthen the compatibility between human rights investigations and criminal investigations.

Lessons learned from the relationships between human rights organizations and the ICTR could be particularly relevant for the International Criminal Court (ICC). The jurisdiction of the new Court, which came into force on 1 July 2002, is based on the principle of complementarity, which gives priority to national courts8. Unlike the Ad-hoc tribunals which have primacy over national courts of all States, the ICC will have jurisdiction only where national judicial systems are unable or unwilling to provide the accused with a fair trial9.

While States with strong national judiciaries will be able - but not necessarily willing - to try their own citizens who commit genocide, crimes against humanity and war crimes, many African countries, because of the non-existence of the rule of law and the lack of independent and effective judicial institutions, may become more susceptible to the jurisdiction of the ICC10. Although the new Court is based in The Hague, it is very likely that its operations will be conducted in environments with many similarities to Rwanda. Indeed, the ICC has so far launched investigations into four situations, all in Africa. Three of these cases occurred following states referrals from States Parties to the Rome Statute: The democratic Republic of Congo, Uganda and Central African Republic. The fourth situation, in Darfur, Sudan, was brought before the Court by referral of the UN Security Council. Although each situation is unique, lessons learned from the Rwandan experience should nevertheless be given greater focus.

Since its inception, the ICTR has developed cooperative relationships with human rights organizations based on a common determination to fight impunity and uphold standards of protection of human dignity. Basically this cooperation has followed three principal tracks: the extensive cooperation track, the intermediate cooperation track and the restrictive cooperation track. The first part of this article focuses on the extensive cooperation between the ICTR and the UN human rights system. Part II discusses the partnership between the ICTR and NGOs. Part III examines the dilemmas of humanitarian actors in working with the ICTR.

I- The extensive cooperation model: Coordinating with UN Human Rights System

The extensive cooperation model constitutes situations where the ICTR has enjoyed full and unconditional support from human rights organizations. The relationship between the ICTR and the UN human rights system fits into this first category. Rwanda is an outstanding case study to explore the interrelationship between human rights and

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international justice. There was a paradox in Rwanda between the inaction and failure of the international community to prevent the genocide of 1994 and the proliferation of initiatives in the aftermath of the killings11. There were a huge number of United Nations agencies operating in Rwanda after the genocide and their work was sometimes characterized by concurrent responsibilities, insufficient coordination and ill-defined mandates. The United Nations High Commissioner for human rights (UNHCHR) field operation in Rwanda was one of the very first missions sent to the country in the aftermath of the genocide. The establishment of the ICTR brought a new actor on the field of investigating genocide and raised the importance of harmonizing and improving the UN human rights response in Rwanda.

A) The UNHCHR mission in Rwanda as the precursor to the ICTR

The establishment of the post of United Nations High Commissioner for Human Rights was one of the innovations of the UN World Conference on Human Rights in Vienna. The first High Commissioner, Mr. Jose Ayala-Lasso, took up his post on 5 April 1994. The next day, the genocide began in Rwanda. He visited Rwanda and called for a special session of the Commission on Human Rights. On 25 May 1994, the Commission on Human Rights adopted resolution S-3/1, which established the mandate of a Special Rapporteur on the situation of Human Rights in Rwanda and requested the High Commissioner for Human Rights to put in place a team of Human Rights investigators to assist him in the discharge of his mandate.

On 1 July 1994 the Security Council adopted resolution 935 (1994) on the establishment of a Commission of Experts to examine and analyze information concerning grave violations of international humanitarian law and possible acts of genocide in Rwanda and to present its conclusions to the Secretary General of the United Nations before November 1994. In a report to the Security Council on 29 July 1994, the Secretary-General stated that the Commission would be based in Geneva and benefit from the resources of the High Commissioner for Human Rights, in particular those already made available to the Special Rapporteur.

By February 1995 there were 85 human rights officers on the ground in Rwanda and later that year the operation reached its peak of about 130 international staff12. UNHCHR’s mandate was as follows: (i) to carry out investigations into violations of human rights and humanitarian law including genocide in accordance with directives given by Special Rapporteur on the situation of human rights in Rwanda and the Commission of Experts established pursuant to Security Council Resolution 935 (1994); (ii) monitor the ongoing human rights situation and, through the presence of human rights officers, help redress existing problems and prevent possible human rights violations from occurring; (iii) cooperate with other international agencies in charge of re-establishing confidence and thus facilitate the return of refugees and displaced persons and the rebuilding of civil society; (iv) implement programs of technical cooperation in the field of human rights, particularly in the area of the administration of justice; (v) Report to the High Commissioner who would make the information available to the

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Special Rapporteur on the situation of human rights in Rwanda and the Commission of Experts established pursuant to Security Council Resolution 935 (1994)13.

One significant component of this UNHCHR Field Operation in Rwanda was the Special Investigations Unit (SIU). The mandate of the SIU was to carry out investigations of alleged violations of humanitarian law and genocide in Rwanda with a view to preparing cases for transfer to the prosecutor of an international tribunal. In order to perform its duty the SIU had established two teams: the Document and Evidence Team (DET) and the site investigation team (SIT)14. The SIU Site Investigation Team was responsible for conducting field investigations of massacres and mass graves, to locate, map, photograph and prepare descriptions of mass grave sites and determine the minimum number of corpses evidencing death by violent means. They also conducted initial screening interviews with witnesses possessing direct information on how the victims were killed, who may have committed the atrocities, and who ordered, incited, facilitated or otherwise collaborated in the commission of the massacres.

The Documentation and Evidence Team (DET) of the SIU was responsible for gathering, cataloguing and supervising the custody and control of all documentation produced by NGOs, UNAMIR, other UN agencies and government authorities and cross-referencing all data by site and target of prosecution. The DET was also responsible for handling all testimonial and physical evidence gathered by the SIU. Such evidence was preserved for the prosecutor of an international tribunal according to procedures and policies developed by the SIU. Clearly, the SIU was basically performing the investigative role that would be later assigned to the Prosecutor of the ICTR. According to a SIU working plan, it was anticipated that by early February 1995, the SIU would begin preparing indictments against selected targets of prosecution.

In its preliminary report on violations of international humanitarian law in Rwanda transmitted by the Secretary-General’s letter of 1 October 1994 (S/1994/1125), the Investigatory Commission of Experts indicated that genocide and other systematic, widespread and flagrant violations of international humanitarian law had been committed in Rwanda. Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them, the Security Council decided to establish the International Criminal Tribunal for Rwanda in its resolution 955 (1994) adopted on 8 November 1994.

B) Harmonizing and improving the UN human rights response

As it was generated within the UN human rights system, as part of the overall international response to massive killings in Rwanda, the ICTR has managed to coordinate its operations with previous UN initiatives. Following the adoption of Security Council resolution 955 (1994) creating the ICTR, one of the Prosecutor’s first actions was to go to Kigali on 19 and 20 December 1994 to establish cooperation with the Rwandan authorities and with the various UN agencies in Rwanda. Special focus was given to the UNHCHR Field Operation in Rwanda, which was the main operational focal point of early initiatives taken by the UN human rights system to address genocide in

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Rwanda. One of the first important issues to address was the overlap between the ICTR’s investigative mandate and the work of the Special Investigations Unit of the UNHCHR Field Operation15. There was potential for confusion, with the risk that Office of the Prosecutor’s investigations might be adversely affected. Significant time was devoted to developing and implementing a policy that clearly delineated the respective roles of the human rights field officers and investigators.

A first coordination meeting was held in The Hague on 28-29 November 1994 between the Prosecutor of the ICTR and representatives of the Special Investigations Unit of the UNHCHR Field Operation in Rwanda. The Prosecutor requested that the SIU not prepare cases for prosecution, nor conduct in-depth field investigations, nor make detailed witness statements, nor develop high level investigative contacts with other organizations, in order to avoid confusion with the newly created Office of the Prosecutor of the ICTR. Instead, the Prosecutor requested that the SIU pursue a strategy of information gathering, in order to determine the relevance of different sources of evidence to prosecute the leaders and organizers of the genocide16.

Further consultation and coordination meetings were organized in Kigali at an operational level between UNHCHR and the Office of the Prosecutor (OTP). In an early field mission report of the ICTR, it is stated that “[representatives] met to discuss the working relationship of the ICTR and the High Commissioner for Human Rights. Discussion surrounded the potential difficulties and confusion caused by the High Commissioner’s newly established investigative role, as opposed to his more traditional role of monitoring human rights violations. The team agreed that having two distinct UN bodies undertaking the same task was confusing both internally and to outside agencies, and potentially divisive. The way forward is clearly for the Deputy Prosecutor to speak to the Special Rapporteur, and then together with the Prosecutor, raise the matter with the High Commissioner and the Secretary General”17.

The OTP did not want to see any interference in its enquiries by people over whom it had no control and who might affect witness cooperation with the ICTR. Moreover, UNHCHR staff had a bad reputation, especially among NGOs. The ICTR did not want to be perceived as “just another human rights agency”, but as a credible criminal prosecution body. There was also a risk that the work of the UNHCHR might jeopardize cooperation between the OTP and the Rwandan Government, bearing in mind that its monitoring of the ongoing human rights situation in Rwanda was a source of potential conflict with the Rwandan Government. Important steps were taken to clarify roles and responsibilities and to ensure effective coordination among the various UN entities working in the areas of human rights and international justice in Rwanda.

A policy level meeting took place on 2 March 1995 in The Hague between the Prosecutor of ICTR and the Special Rapporteur on Rwanda18. The main item on the agenda was to find ways that permitted both organizations to co-ordinate their work in the field. The Prosecutor came into this second meeting with a clearer idea of his immediate strategy. He informed the participants that his office had taken the decision to investigate and indict only the leaders responsible for the 1994 genocide. There were two reasons for this choice: first, it was obvious that the ICTR should prosecute those most

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responsible, and those were the organizers and the planners. Secondly, the great majority of suspects within this category had left Rwanda and fled to a third country and it was not within the power of the Rwandan judicial system to bring them to Rwandan courts. It was more conceivable that the OTP should concentrate on these cases, since they involved less interference with Rwandan sovereignty.

During this meeting, both the Prosecutor and the Special Rapporteur on Rwanda acknowledged that it was important for them, as UN agencies, to coordinate their work. The Special Rapporteur on Rwanda had an investigative mandate, which both agencies should respect. It was broader than the Tribunal’s mandate, especially in timeframe. Nevertheless, there was still duplication between the mandates of the SIU and OTP in relation to violations committed in 1994 and it was therefore essential to elaborate a clear formula for coordination and cooperation over this period. It was agreed that with respect to 1994 the work of the Special Rapporteur on Rwanda and the High Commissioner for Human Rights was welcome and useful, so long as it is was properly coordinated with the work of the ICTR. More importantly, the Special Rapporteur agreed to consult with the Prosecutor before making any information public, in order to ensure the confidentiality of criminal investigations.

On the issue of exhumation, the Prosecutor of the ICTR and the Special Rapporteur agreed that it was preferable that exhumations be conducted within the mandate of the ICTR, with all security precautions and necessary technical assistance. It was decided that the UNHCHR mission to Rwanda would continue to complete a register of known massacre sites. This information would be useful to determine which sites could be exhumed if required.

It was also agreed that one way to develop concrete modalities for cooperation would be for the UNHCHR, under the guidelines of the Special Rapporteur, to develop a number of individual projects to be prepared by investigative teams of 8 to 10 people. The ICTR would be kept informed of these projects and their result. If any of them conflicted with the work of the Tribunal, they would be discontinued. Proper channels for information sharing between the UNHCHR and the OTP were established and a liaison officer was appointed on both sides. The UNHCHR and the Prosecutor of the ICTR finally agreed that the Office of the High Commissioner would ensure that all files maintained within the custody and control of the Commission of Experts and the Special Rapporteur be transferred immediately to the Prosecutor of the ICTR.

When the SIU of the UNHCHR mission in Rwanda began operations on 25 October 1994, the UN Security Council had not even created the International Criminal Tribunal in which the perpetrators of genocide could be tried. This placed the SIU in the difficult position of trying to conduct an investigation to assist the prosecution before a court that did not yet exist, by a Prosecutor who had not yet been appointed, using rules of evidence and procedures of which the SIU was ignorant19. The creation of ICTR by the Security Council on 8 November 1994 provided a legal framework for structuring the work of the SIU. Moreover, close consultation with the OTP allowed the SIU to respond to the needs of the ICTR and enable a smooth transition between the preliminary investigations of the SIU and the prosecutions to be carried out by the OTP of the ICTR.

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After further consultation between the Prosecutor of the ICTR and the High Commissioner’s Office it was agreed that, after a period of transition, the mandate of the UNHCHR, including the SIU, to work on the genocide would end with a possible absorption of SIU members into the ICTR20.

However, during this transitional period, SIU staffs were caught in a grey area between the ICTR and the UNHCHR and some times were contacting and receiving instructions directly from the Prosecutor of the ICTR without following the chain of command. This situation created tension between SIU and its management within the UNHCHR mission in Rwanda. Some employees seemed more loyal to the Prosecutor of the ICTR than to the Head of Mission of the UNHCHR in Rwanda. SIU staff felt that they were not being supported by their own management and that politics between New York, Geneva and Kigali were affecting the work21.

The SIU wrapped up its investigations on genocide by preparing a comprehensive list of mass graves sites, contacts, witnesses, and information available from NGOs and transferring its institutional memory to the ICTR. The SIU’s preliminary work on genocide was very useful and allowed the ICTR to move forward faster than would have otherwise been possible22. The SIU provided the Prosecutor of the ICTR with information on both the background and the substance of crimes committed in Rwanda in 1994. The SIU was contacted by the Prosecutor in order to facilitate the arrival of the advance team of the ICTR in Kigali in charge of setting up an office of the Prosecutor in Kigali. They helped staff settle in Kigali and briefed them on their extraordinary task.

One of the most remarkable legacies of the SIU for the ICTR is a briefing note sent to the Prosecutor on 16 January 1995 outlining lessons learned in dealing with the horror in Rwanda and including specific recommendations to be followed by the Tribunal23. This document became a road map in the investigations of genocide, crimes against humanity and war crimes within the Office of the Prosecutor and significantly influenced the investigative strategy at the early stages of the Tribunal’s existence. The work of the SIU allowed the Tribunal to become acquainted with the practical problems of criminal investigations in Rwanda and to consider such problems during its own operations.

Nevertheless, this transition was not without difficulties. The Prosecutor’s Office of the ICTR was very concerned about the chain of custody of some of the evidence gathered by the SIU of the UNHCHR mission in Rwanda. The admissibility of potentially important evidential material was compromised by the lack of an established chain of custody. For example, the OTP was unable to prove the exact time and date and by whom photographs were taken, who processed the film, who might be able to prove its integrity etc.

II – The intermediate model: building a constructive partnership with NGOs

The relationships between ICTR and human rights NGOs have been both extensive and restrictive depending on the NGO involved, the issues at stake and the context of their intervention. Judicial enforcement is essential to the human rights cause

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and NGOs have been very conscious of the potential synergy between their work and the globalization of criminal justice. Because the Tribunal and human rights NGOs share many similar concerns, working together in a cooperative relationship has meant greater advances towards common goals.

NGOs are one of the driving forces behind the emergence of an effective system of accountability for human rights abuses. NGOs played an important role in generating political support for the creation of the ad hoc tribunals, special tribunals, the development of universal jurisdiction and the creation of the International Criminal Court.

In the Rwandan context, human rights NGOs played a significant role by sending early warnings signals to the international community on the deterioration of the human rights situation in Rwanda and, when the tragedy occurred, focusing world attention on the atrocities and voicing the need for justice for the victims24.

A) Policy and guidelines of cooperation with NGOs

The provisions for cooperation between the ICTR and NGOs are outlined in Paragraph 4 of Security Council resolution 955 (1994) of 8 November 1994, Article 17 of the Statute of the ICTR and in OTP guidelines for cooperation between NGOs and the ICTR. Paragraph 4 of Resolution 955 (1994) urged States, intergovernmental and non-governmental organizations to contribute funds, equipment and services to the ICTR, including the offer of expert personnel. According to Article 17 of the Statute of the ICTR, the Prosecutor shall initiate investigations ex-officio or on the basis of information obtained from any source, particularly from governments, United Nations organs, intergovernmental and non-governmental organizations.

Acknowledging the breadth of NGOs’ expertise and their capacity to support the work of the ICTR, the Office of the Prosecutor articulated policy guidelines to identify areas and ways in which NGOs could assist its work25. The first area of cooperation outlined in the guidelines was trial observation. ICTR sought out NGOs to monitor national prosecutions of Rwandan genocide, in order to establish whether the Tribunal should exercise its primacy over domestic courts. NGOs would act as trial observers within the Rwandan judicial system in order to ensure that international standards were followed. Trial observers would evaluate, among other things, the openness of the trials and the fairness of the proceedings. For this process to be credible, trial observers would be experienced lawyers of standing, familiar with the jurisdiction within which the trial took place. NGOs in a position to assist the Tribunal by providing trial observers in the territory of Rwanda were asked to contact the Prosecutor’s Office.

The second area of cooperation outlined in the OTP guidelines was the identification of potential witnesses. This policy document stated that NGOs could provide vital assistance to the Prosecutor’s Office in this task. NGOs in a position to assist the Office of the Prosecutor in the identification of potential witnesses were requested to provide the prosecutor’s Office with the following type of information: the full name of the victim/witness/refugee; all relevant personal particulars of the individual;

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the village, town, district, or area in which the person was living when the conflict first occurred; whether the person witnessed any particular crimes or offenses; the name of any village, town or area where the person witnesses any criminal activity; whether the person was prepared to be interviewed by the Prosecutor’s representatives. In the same document NGOs were asked to forward to the Tribunal any material in the form of evidence, statements, affidavits, reports or other data in their possession relating to the crimes committed in Rwanda26.

With respect to refugees from Rwanda, NGOs were requested to provide the Prosecutor’s Office at the earliest opportunity with the current whereabouts or location of Rwandan refugees and in particular any material taken from such refugees during

1 See A/57/387 General Assembly, Fifty seventh session, Strengthening of the United Nations: an agenda for further change, Report of the Secretary-General, 9 September 2002.2 See Bayefsky Anne F. (ed): The UN Human Rights Treaty System in the 21st Century, The Hague/ London/ Boston, Kluwer Law International, 2000See also Roht-Arriaza Naomi (ed) Impunity and Human Rights in International Law and Practice, 1995 and Donnelly Jack, International Human Rights (1993).3See Rosenblum Peter, Save the Tribunals; Salvage the Movement, A Response to Makau Matua, 11 TEMP. INT’ L & COMP. LJ. 189 (1997) 4 See www.hrw.org/justice/about.php5 During a conference in Washington whose proceedings were published in volume 13 of the AM. U. INT’L L. REV. Number 6, Mr. Bernard Muna, the Deputy Prosecutor of the ICTR suggested the enormity of the task he has undertaken when he reminded the audience “you have heard that the genocide in Rwanda was five time faster than the one in Germany, even though the German genocide had gas chambers. If you take the lower figure of 500,000 people killed you are looking at 5,000 people a day. If you take the higher figure of one million people killed, you are looking at 10,000 people killed a day without guillotines or gas chambers. Instead, most of the killings were done with match heads [machete] and spears. This meant that a large proportion of the population were implicated for this to succeed”. (See, foreword by Diane F. Orentlicher in War Crimes Tribunals: The Record and the Prospects, Conference convocation, 13 AM. U. INT’L L. REV. Number 6 P vii)6 Goldstone Richard J, 50 Years after Nuremberg: a new International Criminal Tribunal for Human Rights Criminals in Jongman Albert J (Ed) Contemporary Genocides: Causes, Cases, Consequences.7 See Statute of the International Criminal Tribunal for Rwanda8 Bassiouni, M.C, The Statute of the International Criminal Court, New York 1998. See Article 17 of the Statute of Rome9 Schabas William A, An Introduction to the International Criminal Court, Cambridge, Cambridge University Press, 2002 p 6710 Dieng A. Africans Need the Laws and Courts to Punish Their Warlords, International Herald Tribune, Tuesday, August 21, 200111 Martin Ian, Hard Choices after Genocide: Human Rights and Political failures in Rwanda in Hard Choices: Moral Dilemmas in Humanitarian Intervention, pp 157-175 12 Martin Ian, The role of a Human Rights Field Presence in Bayefsky A. F. (ed) The UN Human Rights Treaty System in the 21st Century, 97-104, 2000 Kluwer International Law.See also Howland Todd A, Mirage, Magic or Mixed Bag? The United Nations High Commissioner for Human Rights’ Field Operation in Rwanda, (1999) 21 HRQ, pp 1-55 and Clarence William, The Human Rights Field Operation in Rwanda: Protective Practice Evolves on the Ground, International Peacekeeping, Vol2. N0.3, Autumn 1995, pp 291-30813 See Report of the Secretary-General S/1994/113314 See United Nations High Commissioner for Human Rights, Human Rights Field Operation in Rwanda, Special Investigation Unit, Working Plan

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interviews relating to the commission of genocide, crimes against humanity and war crimes in Rwanda. Other ways in which NGOs could assist the Tribunal included providing medical, psychological and social support to victims and potential witnesses; encouraging victims to come forward to provide statements; assisting the ICTR representatives in arranging visits with potential witnesses and making the necessary preparations; undertaking specific research projects and preparing reports; and providing technical support and expert advice. The guidelines were sent to relevant NGOs working with refugees, witnesses or victims from Rwanda inviting them to contact the Office of the Prosecutor in order to establish a working arrangement and to set up proper lines of communication27.

B) Practice and Benefits of NGO input

This study does not aim to enumerate all non-governmental organizations with which the ICTR discusses matters of mutual interest; but special focus must be given to those organizations that have interacted consistently with the Court. The first year of existence of the Tribunal was devoted in large part to establishing working relations with NGOs28. Today, there is a pattern of interaction with NGOs some of which are very active in generating support for the ICTR and formulating demands and expectations.

15 See OTP,“A Key Issue: The Relationship between The Tribunal and the Special Rapporteur and UNHCHR” A strategic analysis by the advance team of the OTP (K0019031)16 United Nations High Commissioner for Human Rights, Human Rights Field Operation in Rwanda, Special Investigations Unit, SIU Final Report on the Genocide Investigations, Kigali, Rwanda, 12 April 1995. P117 See OTP, Field Mission Report, Kigali, 6 February 1995. It should be noted that in early 1995 regular coordination meetings were organized in Kigali between the Bill Clarence, Head of HRFOR accompanied by SIU staff and Colin Port, the first Director of Investigations of the ICTR. 18 OTP, Meeting with Special Rapporteur and Mr Mautner-Markhof: The Hague, 2 March 199519 United Nations, High Commissioner for Human Rights, Human Rights Field Operation in Rwanda, Special Investigations Unit, SIU Final Report on the Genocide Investigations, Kigali, Rwanda, 12 April 1995. P120 While it was initially anticipated the ICTR would take over SIU staff, it was finally decided this will not take place. It was deemed important that the ICTR maintain independence and deal with these investigations with a fresh look, a new view. 21 In early 1995, there was an attempt within the Technical Cooperation Unit of the UNHCHR mission in Rwanda to turn the monitors into genocide investigators for the national prosecution effort. But such active collaboration with a government which was also part of the problem would have compromised the neutrality and independence of human rights officers. 22 United Nations High Commissioner for Human Rights, Special Investigations Unit, The Field Operation, The International Tribunal and the Government, Kigali, 31 December 199423 This 16 page briefing note was signed by Maurice Nyberg of the SIU.24 See Rwanda: PHR calls for International Tribunal to try Those Responsible for Genocide, Press release by Physicians for Human Rights, July 14, 1994.25 OTP, Cooperation between Non-Governmental Organizations and the International Criminal Tribunal for Rwanda, Kigali, 20 October 1997.26 Ibid27 Ibid

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1) Generating support and facilitating the work of the ICTR

Some leading international human rights NGOs such as Amnesty International, Human Rights Watch and Physicians for Human Rights were instrumental, through their lobbying and networking activities, in providing the necessary political support for the creation of the ICTR. When the Tribunal was created and started its operations, the Prosecutor and his representatives participated in various meetings in Rwanda, Europe and North America at which they were able to work with NGOs in an effort to enlist and strengthen their support and cooperation29. Some of them such as Physicians for Human Rights, Human Rights Watch, Amnesty International and African Rights, as well as numerous local NGOs in Rwanda, have developed expertise that is unique in documenting genocide in Rwanda.

a) International NGOs

Physicians for Human Rights (PHR), a Boston based NGO, assisted the Tribunal in gathering evidence from mass grave exhumations in Rwanda, a capacity the OTP did not and does not have. They offered to make one qualified person available to the ICTR to support the work of the Office of the Prosecutor. The offer was warmly accepted and an official request was sent to the Executive Director of PHR by the Prosecutor on 17 October 1995 in order to assist the ICTR in mapping and exhumation of mass graves in Rwanda.

Additionally, the Prosecutor wanted PHR to make a team of international forensic experts available to carry out investigations. As was the case with the assistance PHR provided to the Commission of experts for the Former Yugoslavia, investigations consisted of uncovering the mass graves, removing bodies and on-site autopsies on a percentage of those corpses. These investigations conducted by Dr William D. Haglund provided a valuable contribution to the work of the ICTR. They formed an essential part of the prosecution and successful conviction of Clement Kayishema and Obed Ruzindana for genocide and crimes against humanity30.

Human Rights Watch (HRW) has played a crucial role in providing the ICTR with volumes of testimony and evidence collected by their investigators and researchers, and by serving as expert witnesses and advisers31. The late Dr Alison Des Forges of HRW was one of the OTP’s leading experts and has assisted the ICTR since its inception. 28 In August 1995 Honore Rakotomanana, the first Deputy prosecutor of the ICTR, sent a letter to the media and NGOs requesting cooperation. The first positive responses came from Alison De Forges of African Watch and from the Committee for Democracy and Human Rights.29 See United Nations, General Assembly/Security Council, 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 and 31 December 1994. A/51/339, S/1996/778 p 14. 30 See www.phrusa.org/research/forensic/rwanda/findings.htm31 See www.hrw.org/justice/about.php

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One of her first meetings with the Tribunal took place on Friday 27 January 1995 in Kigali during which she provided the ICTR delegation with useful insights acquired from documenting the genocide in Rwanda.

At that meeting, Dr. Des Forges expressed concerns about the protection of witnesses, saying rightly, that it was difficult to isolate a witness from the community structure of the Rwandan society. She also raised the issue of working with interpreters and specifically their lack of independence and misogyny. She mentioned the risk of “ritualisation” due to repeated interviews of the same witness by different organizations32. Dr. Des Forges has provided many reports and testimonies to the ICTR. Most importantly, HRW has been very supportive of the ICTR during its tension with the Rwandan Government, which was resisting the Tribunal’s efforts to open investigations against members of its armed forces who committed war crimes and crimes against humanity in 199433. HRW has issued a statement and sent a letter to the President of the Security Council in order to seek justice for victims of both sides of Rwanda’s tragedy34.

Amnesty International (AI) has repeatedly called on Governments to provide legal, financial and human resources to help the ICTR35. They have been instrumental in helping to generate political pressure necessary for the arrest of suspects and accused persons all over the world36. The first operational meeting with Amnesty International took place on Thursday 23 February 1995 at the AI office in Kigali37. The Director of Investigations gave a briefing to AI representatives on the Tribunal’s mandate and activities in Rwanda. The AI representative responded that their organization could help the Tribunal in their investigations. She recommended some contacts and useful reading to the ICTR representatives. She added that they possessed many files in the London office, which might be useful to the Tribunal and the Prosecutor should negotiate with the Secretary General of AI for access to these archives. ICTR followed her advice and investigators were sent to AI headquarters in London in order to collect any useful information38. Although AI was concentrating on national prosecutions at that time, they were still interested in helping the ICTR to fulfill its mandate. Since then, the ICTR has

32 See OTP, Field Mission Report, Kigali, 6 February 1995, P233 See Kenneth Roth, Rwanda: Deliver Justice to victims of both sides, Human Rights Watch, New York, 12 august 2002. See also: Top genocidaire arrest an” important step”, Human Rights Watch, New York, 15 August 2002See Prosecutorial incompetence frees Rwandan genocide suspects, Human Rights Watch, New York November 9, 199934 See Letter sent to Security Council President John Negroponte, HRW Letter, August 9, 2002. See also a letter to the Prosecutor of the ICTR on RPF crimes, May 26, 2009

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become a major focus of AI, which has closely monitored its activities and generated many reports followed by specific recommendations for improvement39.

African Rights, a London-based human rights NGO was supportive of the work of the Tribunal from 1995 to 1997. On 27 January 1995, the first meeting between the advance team of the ICTR and Ms. Rakiya Omaar of African Rights took place at ICTR offices in Kigali40. New staff of the Tribunal wanted to listen and learn from her experience of investigating genocide in Rwanda. Ms. Omaar noted that she recently realized the extent of the paucity of witnesses to genocidal crimes. Entire families were wiped out; there were many crimes to which there are no witnesses left alive. In some cases the only witnesses appeared to be hearsay witnesses who were actually in hiding during the genocide.

Ms. Omaar also identified growing threats to people who were willing to come forward as witnesses to genocidal crimes. These threats came from killers and actors still living in Rwanda. She informed the Tribunal that the intellectual authors of genocide, taking advantage of their wealth, left the country to find refuge abroad. Ms. Omaar noted that planners were residing in Kenya, Zaire, France, Belgium with an increasing number of key people in Cameroon. The only way to break the cycle of violence and establish the rule of law in Rwanda, Ms Omaar said, was to bring the perpetrators of genocide to court. The trials, she stated, should be conducted according to the highest human rights standards. She articulated her belief that unless there was justice there could be no peace and reconciliation in Rwanda. On 8 November 1995, two ICTR investigators subsequently met Ms. Omaar in her office in London to discuss specific files and get names and contacts of witnesses whose testimonies were mentioned in her publications41.

35 Amnesty international, Justice in Rwanda and former Yugoslavia undermine by failure to provide adequate support for the Ad hoc Tribunals, London, 6 may 199636 Amnesty International “Italy must immediately arrest Rwandese indicted by the International Criminal Tribunal for Rwanda” London, 17 July 2001See also Amnesty International, International Criminal Tribunal for Rwanda's request for the surrender of Muvunyi and Ndindiliyimana: a step closer to justice, London, 8 February 2000.Amnesty International, International Criminal Tribunal for Rwanda: Jean-Bosco Barayagwiza must not escape justice, London, 24 November 199937 See OTP, Meeting at Amnesty International Office, Kigali, 10:00 am, Thursday 23 February 199538 During their mission in London in August 19, 1996, ICTR investigators met with Amnesty International representatives and discussed AI’s investigations into the Bugesera massacres and the role played by Radio Rwanda broadcasts in inciting the population into killings. AI provided the investigators with a group of documents relating to those issues.39 Amnesty International, International Criminal Tribunal for Rwanda: Trial and Tribulations, London, 1 April 1998Amnesty international, International Criminal Tribunal for Rwanda: Achievements and shortcomings, London, 30 April 1998Amnesty international, International Criminal Tribunals: hand Book for Government cooperation, London, August 1996Amnesty International, Amnesty International welcomes historic ruling by the International Criminal Tribunal for Rwanda, London, London, 4 September 199840 See OTP, Meeting with Rakiya Omaar, African Rights, ICTR Office, Kigali 11:00 am, January 27, 1995.

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b) Rwandan NGOs

Rwandan NGOs have also been instrumental in the success of the Tribunal’s work, especially by facilitating investigations. Some of these NGOs were themselves targets during the genocide and several leading human rights advocates were among the first to be killed. The first meeting between ICTR and representatives of Collectif des Ligues et Associations de Defense des Droits de l’Homme (CLADHO), a group of locally based human rights NGOs, took place on 28 January 199542. The Director of Investigations of the ICTR outlined the strategy of the Tribunal and asked CLADHO for advice, guidelines and assistance. The representative of CLADHO responded that they had conducted their own investigations into the atrocities in Rwanda and a copy of their findings would be provided.

In the aftermath of the genocide, a number of non-governmental organizations emerged within Rwandan civil society to address the needs of victims. These NGO’s represent a network of genocide survivors from where the Office of the Prosecutor draws most of its witnesses. Many of these NGOs form national networks and coalitions, such as IBUKA, PRO-FEMME, AVEGA-Agahozo and Haguruka. One of their main objectives is justice for their members and beneficiaries. As such, this community has a stake in the work of the ICTR as a whole, and of the Office of the Prosecutor, in particular.

From the outset, the OTP and the network of NGOs representing the victims engaged in dialogue in the interest of their common objectives. It is in this spirit that a meeting was organized in Kigali on 11th February 2000 between the OTP and NGOs representing the victims to discuss closer collaboration, to consider the assistance NGOs have provided to the Office of the Prosecutor and to chart a course for constructive future commitments from the OTP vis-à-vis the community of victims in Rwanda. This meeting sought to increase the OTP’s responsiveness to victims’ needs and to establish dialogue and communication among them. A better understanding was reached and the OTP became more aware of the need to listen and learn from the victims and to carry out their wishes with respect to justice. A Liaison Officer was appointed to develop and maintain contact with the network of NGOs representing the victims.

The role of domestic NGOs has been crucial in identifying, locating and introducing witnesses to Tribunal investigators. Locating witnesses is challenging in Rwanda. There is no system for contacting people in most areas of the country; the high mobility of persons due to the effects of the war made it difficult to locate witnesses; there is a lack of prompt and adequate communication facilities, such as telephones in

41 See African Rights, Rwanda: Death, Despair and Defiance, August 1995See also African Rights, Lt. Col. Tharcisse Muvunyi: A Rwandese Genocide Commander Living in Britain, 19 April 2000, African Rights, Rwanda – Killing the Evidence: Murder, Attacts, Arrests and intimidation of Survivors and Witnesses, April 1996, African Rights, Left to Die at ETO and Nyanza, 11 April 2001 and African Rights, “Jean-Paul Akayesu, First Prosecution by the International Criminal Tribunal for Rwanda at arusha, Tanzania” September 1996.42 See OTP, Field Mission Report, Kigali, January 24, 1995 P.3

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rural areas, and one has to cover long distances to locate witness. Victims’ NGOs also played a role in preparing witnesses to have the confidence to open up to investigators43.

The role of NGOs representing victims has also been particularly critical in the investigation of sexual crimes. This is a sensitive and specialized area. Survivors of sexual offences are likely to suffer from conditions caused by their experiences. They may have contracted AIDS, gynecological complications, as well as psychological problems such as trauma. They may have become pregnant, resulting in children from their aggressors, another category of victims of sexual violence. Without the intermediary of NGOs, contact and collaboration with this vulnerable category of witnesses would be particularly difficult. After testifying, NGOs have provided some witnesses with trauma counseling and other support.

This contribution of domestic NGOs was particularly remarkable during the investigations on Jean-Paul Akayesu. Community based NGOs such as Reseau des Femmes, IBUKA and Huguruka were the indispensable intermediaries between the Tribunal’s Sexual Assault Team and witnesses. They assisted women victims of rape during the investigation phase and also provided the psychological follow up to them. During the trial, NGOs sent a support person to accompany witnesses and victims of sexual violence to Arusha.

2) Formulating demands and expectations for justice

One of the shortcomings of the OTP’s guidelines on cooperation with NGOs was its failure to cover the whole spectrum of their relationship. Working with NGOs appears to be a one-way process. The guidelines did not anticipate the growing interest and involvement of both domestic and international NGOs is the work of the ICTR. Receiving information from NGOs was certainly crucial in the early stages of the activities of the OTP. This trend is now reversed and to date NGOs function has mainly shifted from the initial support position of information providers to a more proactive role44. The OTP guidelines have never been updated accordingly and a major part of current cooperation efforts with NGOs is on an informal, ad hoc basis.

a) Responding to international NGOs: facing women’s rights groups

The Tribunal’s interaction with women’s rights groups has contributed significantly to advancing the investigation and prosecution of gender-related crimes; an area in which the Tribunal has been more re-active than pro-active. Human rights groups such as Medecins sans Frontieres and Human Rights Watch have documented and identified sexual violence during the genocide in Rwanda and its aftermath as a target for

43 Seutcheu, M. “Investigating Horror: Anatomy of the Interaction between the Office of the Prosecutor and the Genocide Victims in Rwanda”. A contribution made during the Genocide Victims International Conference in Kigali on 25-30 November 2001. To be published by Dr. Yeal Danieli, Director of the New York based Group Project for Holocaust Survivors and Their Children in LIFE AFTER DEATH, Rebuilding Genocide Survivors’ lives: Challenges and Opportunities. An International Conference of Survivors44 Walleyn Luc, Victims and Witnesses of International Crimes: From the Rights to Protection to the Rights to Expression, International Review of the Red Cross, N0 845, 2002, P 51-78

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human rights initiative45. As a result, networks and partnerships grew up among women’s groups to create an effective platform for action and advocacy before the ICTR.

The NGO Coalition on Women’s Human Rights in Conflict Situations, under the leadership of the International Women’s Human Rights Law Clinic of the City University of New York School of Law, has played a role in improving the responsiveness of the ICTR to the concerns of national and international women’s human rights communities. The Prosecutor’s capacity to investigate crimes of gender and sexual violence against women, and to charge these crimes among the gravest within the competence of the Tribunal, has been strengthened thanks to the research, advocacy and networking activities of NGOs.

On 7 August 1996 more than 50 human rights NGOs sent a petition to the Tribunal’s Judge Goldstone, requesting that consideration be given to amending the indictment against Jean-Paul Akayesu with regards to command responsibility for the use of rape as a form of torture and instrument of genocide. They urged the Prosecutor to conduct the necessary investigations and amend the indictment46.

On 16 October 1996, the International Center for Human Rights and Democratic Development (ICHRDD) based in Montreal, Canada, informed the Tribunal in a letter to the OTP of their intention to initiate a gender observation project for the Rwandan Tribunal and to seek the full cooperation of the ICTR with respect to a gender observer47.

On 27 May 1997, the same group of women’s human rights NGOs sent another letter to Ms. Louise Arbour, Prosecutor of the Ad Hoc Tribunals concerning the fact that investigation and prosecution of sexual assault, rape and other gender related crimes failed to get the priority it requires within the ICTR48.

On 17 October 1997, the NGO Coalition on Women’s Human Rights in Conflict Situations sent a letter and an attached report entitled “Witness Protection, Gender and the ICTR” to the Prosecutor. In this communication, they provided further documentation and suggestions for improving the work of the ICTR in three areas: (1) ensuring witness protection during the investigative stage, as well as during and after trials, with immediate attention to witnesses who are schedule to testify about sexual violence in the Akayesu Trial; (2) strengthening the ICTR’s capacity to investigate crimes of gender and sexual violence against women; and (3) re-conceptualizing and charging these crimes against women as among the gravest crimes within the competence of the Tribunal.

In addressing these three issues, the international NGO coalition began by expressing the need to build trust and repair the relationship between ICTR and the Rwandan women’s community. According to them Rwandan women’s associations have

45 See Human Rights Watch et al, Shattered lives: Sexual Violence During the Rwandan Genocide and Its Aftermath, 1996. See also Medecins Sans Frontieres, “Le viol comme arme de guerre au Rwanda: du silence a la reconnaissance”, Mission du 26 decembre 1994 au 6 janvier 1995. 46 See International Women’s Human Rights, Letter to Judge Goldstone, Prosecutor of the ICTR, 7 August 199647 Centre International des Droits de la Personne et du Developpement Democratique, Lettre au Juge Louise Arbour, Procureur en Chef du Tribunal Penal pour le Rwanda, Montreal 16 Octobre 199648 International Women’s Human Rights, Letter to Judge Louise Arbour, Prosecutor, International Criminal Tribunal for Rwanda, 27 may 1997

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voiced concerns that they have been treated disrespectfully and that contact with the ICTR has been minimal and lacking follow-up; they have no regular or accurate information on about the Tribunal’s operations; and that it is virtually impossible to contact or visit the OTP in Kigali (see report paras, 15-27).

NGOs have gone further by taking advantage of the provision of Rule 74 of the Rules of Procedure and Evidence of the ICTR to file Amicus Curiae Briefs in order to participate more deeply in the judicial process. The first was submitted on 27 May 1997 in the Akayesu case, by a coalition of eleven international NGOs, specialized in women’s rights, under the leadership of the International Women’s Human Rights Law Clinic of the City University of New York School of Law. They called upon the Trial Chamber and the Prosecutor to amend the indictment against Akayesu to charge rape or other serious acts of sexual violence as crimes within the competence of the Tribunal.

The second, on 1 March 2001, was submitted by the Coalition for Women’s Human Rights in Conflict Situations. It requested that the Trial Chamber exercise its supervisory authority under the Tribunal’s Statute and the Rules of Procedure to review the evidence and, where appropriate, to amend the indictments against Emmanuel Bagambiki, Samuel Imanishimwe and Andre Ntagerura, (the Cyangugu Case) to include a rape charge and other gender-related crimes as crimes of genocide, crimes against humanity and grave breaches of common article 3 of the Geneva Conventions.

Others examples of NGOs using their ability to participate in the Tribunal’s proceedings are African Concern who filed an application for leave to file a written brief as amicus curiae on 17 December 1998 in the case of the Prosecutor v. Alfred Musema (ICTR-96-13-I). Similarly, on 15 December 1998 African Concern applied for leave to file a written brief as amicus curiae in the case of the Prosecutor v. Theoneste Bagosora (ICTR-96-7-I)49. In these cases the NGOs were able to participate in Tribunal’a proceeding and formulate their demands directly to the Court.

In the case of Akayesu the NGO coalition was successful in convincing the Tribunal of the need to amend the indictment. In the second case (Cyangugu), the Coalition failed to persuade the Tribunal to review the evidence and the trial has proceeded without reference to sexual crimes.

In responding to NGOs on gender related investigations, the second Prosecutor, Ms. Louise Arbour, in a letter dated 4 October 1996 and widely disseminated to NGOs, acknowledged that, when the commission of sexual assaults falls within the mandate of the Tribunal it must be vigorously investigated and prosecuted. She informed the NGOs that she has directed the Investigations Division in her Office in Kigali to expand its

49 See United Nations, General Assembly/Security Council, 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 and 31 December 1994. A/54/315, S/1999/943, 7 September 1999, P 25.On Amicus brief filed before national jurisdictions by human rights NGOs to support the ICTR. See Lawyers Committee for Human Rights, Brief of Lawyers Committee for Human Rights as amicus curiae in the matter of the surrender of Elizaphan Ntakiturimana, United States District Court of Texas Laredo Division, April 24 1998.

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investigative efforts in that respect by establishing a sexual assault team. She officially requested the assistance of NGOs in gathering sexual assault information under Rule 70 of the Rules of Evidence and Procedure of the ICTR. Rule 70 permits the Prosecutor to receive information on a confidential basis in order to generate new evidence that the prosecution could chose to disclose at trial. The confidentiality of Rule 70 aimed to encourage persons and organizations to fully share information about sexual violence with the OTP. As regards to the gender observation project requested by the NGO coalition referred to above, the Prosecutor informed the International Center for Human Rights and Democratic Development of its commitment to assist and communicate openly with the observer to the extend permissible, without breaching the confidentiality of investigations, attorney-witness privilege, witness security or other safeguards incumbent upon the prosecution50.

Ms. Arbour also set up a sexual assault committee in the Office of the Prosecutor in charge of providing advice and guidelines on gender-related crimes to both the investigation and prosecution sections. In addition, two workshops were organized in Arusha respectively in March and October 1997 in order to strengthen the capacity of ICTR staff involved in the investigation and prosecution of sexual violence cases. A panel on the relationship between the ICTR and the NGO community was set up at the second sexual violence workshop. Rwandan human rights activists from the NGO community were invited to provide their expertise and input.

Several points related to witness management were raised by NGO representatives from Rwanda. In their presentation about the realities facing women who were sexually assaulted during the genocide, they advocated for an integrated approach to achieving justice for these individuals, which included health services and economic assistance. Stressing the need to develop a coded language for women to express what happened to them, NGO representatives spoke about the difficulties they had encountered in trying to overcome cultural taboos, which stand in the way of women telling their stories. After the workshop, the Prosecutor requested that the legal adviser for gender-related crimes to follow up contacts with Rwandan NGOs51.

b) Responding to domestic NGOs: facing genocide victims rights groups

IBUKA, a coalition of genocide victims’ rights groups, has been the major channel for aggregating and articulating demands and expectations from Rwandan society to ICTR. They have used three principal means to contribute their views and concerns to the judicial system: open letters to ICTR’s authorities, demonstrations in front of the Office of the Prosecutor in Kigali and informal contacts with Tribunal officers. From 9 to 10 December 1996, a workshop was organized in Kabusunzu by IBUKA in order to address issues and problems faced by genocide survivors. One of the

50 See OTP, Letter of the Prosecutor to Ms. Maureen O’ Neal and Ms. Ariane Brunet, The Hague, 13 November 1996.51 OTP, Mission Report/NGO Policy, 27 November 1997

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recommendations of that seminar was addressed to the ICTR. Victims expressed dismay about the slow pace of justice and requested the separation of the Office of the Prosecutor of the ICTR from that of the International Criminal Tribunal for the former Yugoslavia (ICTY), by the appointment of a Prosecutor specialized on ICTR matters. In addition, they urged the Tribunal to work more closely with national prosecutors to gain their insights and a better understanding of Rwandan reality.

From 1997 to 2002 three demonstrations were organized by genocide survivors’ organizations IBUKA and AVEGA in front of the Office of the Prosecutor in Kigali; on 9 April 1997, 23 May 1997 and 27 June 2002 respectively. The commemoration of the third anniversary of the genocide on 6 April 1997 generated momentum for the first demonstration., The two other demonstrations coincided with the visits of the Tribunal’s senior officials; the Prosecutor, Ms. Louise Arbour, on 23 May 1997; and the Prosecutor, Ms. Carla Del Ponte and Registrar, Ms. Adama Dieng, on 27 June 2002.

In these three cases, the demonstrations were a sign of inadequate communication between the ICTR and victims’ groups. Nevertheless, they provided an unexpected and unusual window of opportunity for the ICTR to receive feedback and demands from victims’ groups. The feedback was negative and the list of demands long. Victims groups chanted slogans expressing their unhappiness about the “slow pace of justice, negligence, dysfunction, waste of resources, failure to arrest perpetrators, transferring the ICTR to Kigali and incompetence” of the Tribunal. They called for the resignation of the Prosecutor and the Registrar. Following the demonstration by victims’ rights groups on 23 May 1997 in Kigali, a letter was sent to the Prosecutor Ms. Louise Arbour, reiterating the request for a specific Prosecutor for the Rwandan Tribunal.

At a luncheon meeting in Kigali on 11 th February 2000 between Ms. Del Ponte and the network of domestic NGOs representing the victims and the survivors of the genocide, the OTP gave a brief overview of its activities. The NGOs raised several issues regarding the work of the OTP, including witness protection, the trauma related to testimony by rape survivors, holding trials in Rwanda giving greater voice to victims in ICTR proceedings and victim compensation52.

From 1997 to 2002 a growing number of projects requesting financial assistance were send to the Prosecutor and the Registrar by victims groups. Most of them were aimed at providing support to victims, especially projects for female genocide survivors living with HIV/AIDS. One proposal that stood out was from IBUKA. It was designed to provide assistance to the Tribunal by gathering evidence. The estimated cost of the project was more than US$500,000.00 including 4x4 cars and salaries to be paid to IBUKA members involved in the project according to international standards. From the quantity of requests received from the Rwandan NGO community, there seemed to be a misunderstanding that the ICTR was a UN development agency.

In response to domestic NGOs demands, the Prosecutor stressed her belief in the need to make the work of the Tribunal relevant to the people of Rwanda and reiterated her desire to hold some hearings in Kigali, to see victims and survivors of genocide being

52 OTP, Report of luncheon meeting between Mme Carla Del Ponte and Rwandan NGOs held in Kigali on 11 February 2000.

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given greater voice in proceedings before the Tribunal and to improve compensation to victims.

To ensure that the people of Rwanda, especially victims, were involved in the international justice system, Ms. Carla Del Ponte, Prosecutor of the ad hoc Tribunals gave her support to the idea of holding trials in Kigali, with ICTR judges. She helped to facilitate the provision of international assistance for the refurbishment of the Supreme Court of Rwanda, with a view to rendering it suitable for Tribunal hearings53. According to Rule 4 of the Tribunal’s Rules of Procedure and Evidence, the decision to hold hearings in Kigali lies with the judges of the Chamber concerned and should be authorized by the President of the ICTR in the interests of justice. The accused and their counsels expressed strong opposition to this proposal.

The drafters of the ICTR legal framework were mostly inspired by the Anglo-Saxon common law system, in which victims have a minimal role as they are considered to be evidence providers to secure the punishment of criminals. The Prosecutor initiated proposals aimed at reaffirming the right of victims to be represented in the proceedings through the civil law concept of partie civile. In order to be successful, this initiative required an amendment to the Tribunal’s existing Statute. The Prosecutor suggested that NGOs representing victims could organize themselves and appoint one individual to serves as amicus curiae (friend of the Court) in all cases54. This would have the effect of providing a more specific and focused voice to victims.

As the FIDH reports on the ICTR “the fact that victims are not complainants in the trials has produced an imbalance which is difficult for people accustomed to a civil law system to understand, and it is particularly difficult to understand in the case of crimes of genocide and crimes against humanity that have caused the death of approximately one million people, and which increase the need for survivors to be granted recognition”55.

The request for victim compensation has received support from the ICTR. While the Tribunal was specifically mandated to prosecute cases against perpetrators of the genocide, there was no clear mandate as regards compensation. According to Rule 106 of the Rules of Procedure and Evidence of the ICTR, all claims for compensation must be filed through the national court system, addressed to the Rwandan Government. To date no individual or NGO is known to have file a claim and it is hard to see the Rwandan judicial system dealing with this issue. Any change in this provision will require a decision by the United Nations Security Council.

The issue of reparations, as well as the representation of victims before the Tribunal, was raised at a Plenary Session on 26 June 2000. As a result, on 9 November 2002, the President of the Tribunal, Ms. Pillay, on the behalf of the judges, submitted a proposal to the Secretary-General for compensation for the victims of the events that took place in

53 The Prosecutor secured a grant from the Swiss Government of US$ 100,000.00 to equip the Supreme Court in Kigali.54 A/56/351 S/2001/863 United Nations, General Assembly/Security Council, Sixth annual report of the International Criminal Tribunal for Rwanda for the period 1 July 2000 to 30 June 2001. P. 16

55 See International Federation for Human Rights, Victims in the Balance, Challenge ahead for the International Criminal Tribunal for Rwanda, Report N0 329/2 November 2002, P10.

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Rwanda in 1994, over which the Tribunal has jurisdiction. This submission referred to the Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power adopted by the United Nations General Assembly in 1985. The judges agreed with the principle of victim compensation, but believed that responsibility for processing and assessing claims for compensation should not lie with the Tribunal, but rather with other agencies within the United Nations system56.

On 1st March 2002, a brainstorming session on assistance to genocide victims was organized in Kigali by UNDP and the Office of the Registrar of the ICTR, with the participation of bilateral donors such as the United Kingdom, Belgium, the United States, Denmark, the Netherlands, Sweden and Norway. It was agreed that a restitutive mechanism should be set up in order to improve the living conditions of victims. On 29 October 2002, President Pillay, during her annual statement to the United Nations Security Council reiterated her support for the compensation of victims, a prerequisite for the full achievement of the ICTR’s mandate. In an international context characterized by Tribunal fatigue and global economic slowdown, the Security Council’s decision on this issue is still awaited.

3) Tensions and challenges of cooperation The Akayesu case represents the ideal type of cooperation between the ICTR and

the NGO community. NGOs succeeded in shaping the output of the ICTR and a policy decision was taken to investigate and prosecute sexual violence crimes as an integrate part of prosecuting genocide, crimes against humanity and violations of common Article 3 of the Geneva Conventions, in Rwanda. The Deputy Prosecutor acknowledged “this policy position was largely inspired by both the local and international human rights NGO community who actively supported the inclusion of sexual violence in Akayesu’s indictment and in all future indictments of the Tribunal where evidence of sexual violence exists”57.

More importantly Prosecutor v. Akayesu became a landmark case in international criminal law. Akayesu, the Mayor of the district of Taba, was convicted of genocide and crimes against humanity and was given a life sentence. This was the first conviction since the 1948 Convention on the Prevention and Repression of Genocide. Finding that rape was perpetrated against Tutsi women with the intention of destroying their ethnic group, the judgment also sets a precedent for recognizing rape as an act of genocide.

However, dealing with NGOs can be challenging for a war crimes Tribunal. The current dynamics of the relationships between the Tribunal and NGOs have reached an

56 A/56/351 S/2001/863 United Nations, General Assembly/Security Council, Sixth annual report of the International Criminal Tribunal for Rwanda for the period 1 July 2000 to 30 June 2001. P. 1457 See letter sent to human rights NGOs by Mr. Bernard Muna on 10 February 1998 requesting their assistance in conducting investigations of sexual violence during the genocide and post-genocide period in Rwanda and the refugees camps, especially in Zaire. Justice Goldstone has also acknowledged the important role played by NGOs inspired by feminist scholars of international law, urging him to give adequate attention to gender-related war crimes. See Goldstone R.J, For Humanity: Reflexion of a War Crimes Investigator, New Haven &London 2000. P 85

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unprecedented level of demand on the ICTR. Human rights organizations have been seeking access, participation, information and a variety of other services and resources from the Tribunal.

Unlike the ICTY, the Rwandan Tribunal has been closely monitored since its inception by international human rights NGOs. As a result, many reports and statements have been produced on the work of the Tribunal. Some of these reports are quite damaging for the credibility of the Court and create pressure on the Tribunal and its staff. International human rights NGOs have been very effective in using global media in order to bring their demands and expectations forward.

Some NGOs react quite surprisingly to a negative response or delayed reply to their demands from the Tribunal and do not always understand the difficulties faced by the ICTR. The case of African Rights is particularly interesting to study. On 30 May 1996 this London based NGO issued a 58-page report about the role which Mr. Innocent Mazimpaka, a Rwandan employee of a Dutch NGO funded by the Government of the Netherlands, played in the genocide58. Following the publication of this report, the OTP decided to open an investigation but not to pursue it because of the limited significance of the suspect.

On 30 August 1996, African Rights sent a letter to the Prosecutor saying “as you know, African Rights has made considerable efforts to assist the Tribunal in the past and has nothing to gain from public quarrel. However, it is becoming increasingly difficult to keep private our concerns about the working methods and approaches of the Tribunal with regards to Rwanda. That is why I wanted to contact you before taking any additional steps. I sincerely hope that it will be possible for you to take the necessary corrective measures as soon as possible”59. In this way, African Rights wanted to influence prosecutorial decision making by using media pressure to pursue a specific suspect.

On 10 March 2003, the Coalition for Women’s Human Rights in Conflict Situations sent a letter to Ms. Carla Del Ponte criticizing her prosecution of rape, stating “as your term comes to an end, we believe that your four-year record as ICTR prosecutor shows no commitment to effectively developing evidence and bringing such charges, despite the overwhelming proof of sexual violence during the 1994 Rwandan genocide. We believe that the situation reflects both a lack of political will to treat this crime with the seriousness of other genocide crimes and ill-advised management choices that have undermined the investigative and prosecution capacity to effectively pursue these charges…While the ICTR is feted for its 1998 landmark judgment convicting Jean-Paul Akayesu for rape as a genocide crime and a war crime, we believe that the widespread sexual violence cannot be reflected only in a single judgment, but must be a part of all the cases where appropriate”.

In addition the NGO Coalition strongly urged the Prosecutor to take immediate steps to fully and fairly investigate and prosecute sexual violence crimes. They argued that further investigations, where need be, should be conducted by Tribunal investigators 58 See African Rights, Issue 3: “Presumption Of Innocence: The Case Against Innocent Mazimpaka”, London, May 1996.59 See African Rights, Letter to Judge Richard Goldstone, Special Prosecutor of the UN International Criminal Tribunal for Rwanda, London, 30, August 1996.

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to collect information on sexual assault previously overlooked. They urged the Prosecutor to step up her efforts to integrate a gender perspective into investigations and to reinstate the Sexual Assault Team with competent and experienced investigators.

As a result, the Sexual Assault Team that was dismantled in 2002 was re-established within the Investigations Division of the OTP in May 2003. For the NGO Coalition it was too little too late. They supported a group of domestic NGOs in a campaign to prevent the renewal of the Prosecutor’s mandate for the ICTR. On 21 July 2003, 60 Rwandan civil society groups, including human rights NGOs sent a petition to the United Nations Security Council urging its members to strongly consider the dismal record of the Prosecutor, Ms. Carla Del Ponte, when deciding whether or not to renew her mandate in September 2003.

Closer scrutiny reveals that many international NGOs apply to the ICTR the same strategy of lobbying and networking that they use for other targets like governments or international organizations. The way some NGOs operate is similar to that of interest groups. Their alleged clients are victims and survivors60. Their aim is to influence officials of the Tribunal who hold policy-making positions in order to shape their agenda in a particular way. This growing activism of NGOs in the corridors of the Tribunal represents a real threat to the independence and impartiality of the ICTR. Some NGOs have developed subtle ways of infiltrating the ICTR and accessing confidential information. They have taken advantage of the frustration amongst some ICTR staff to enjoy an unprecedented level of penetration into the judicial body. This sometimes places the leadership of the Tribunal in the embarrassing situation of having to respond to NGOs queries based on information that was supposed to be confidential.

An overall evaluation of the interaction between the Tribunal and NGOs reveals a clear pattern of inequality in influence between international and domestic NGOs. Input from international NGOs is better articulated and their strategy is more sophisticated, particularly in mobilizing international public opinion through their extensive access to the global media. As a result they are more efficient in dealing with the judicial system of the ICTR. In comparison, domestic NGOs have been given less consideration by the Tribunal. The ICTR has taken a lot from them and given quite little in return.

Several reasons explain this trend. First, international NGOs have a high level of expertise, gained through their exposure to knowledgeable and wealthy environments, as well as their proximity and accessibility to powerful policy development structures. Consequently, the way international NGOs report the activities of the Tribunal is crucial for overall perception towards the judicial body and its senior officers. For this reason, maintaining close contact with leading international NGOs has become a strategic issue and a matter of policy within the Tribunal. Clearly, Tribunal officials are aware of the fact that failing to do so might undermine the credibility of the institution, have a high political cost and lead to a lost of support and jobs.

60 Hausegger L. Joanne, The Impact of Interest Groups on Judicial Decision Making: A Comparison of Women’s Groups in the US and Canada, 1999.See also, Shelton D, “The Participation of Non Governmental Organizations in International Juridical proceedings” 88 AM J INT’ L 611 (1994) and Figueiredo. JM Pacheco, The Allocation of Resources by Interest Groups: Lobbying, Litigation and Administrative Regulation, Cambridge, MA, HLS, 2002.

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Domestic NGOs are less organized, with few financial and human resources. Their strategy is less sophisticated and sometimes overly emotional. Their access to international media is limited. Additionally, they lack knowledge of the Tribunals’ basic legal framework, as well as about the proper channels to follow in order to address their views and concerns. As a result public demonstrations in front of the ICTR office in Kigali have become a prominent way of articulating demands and expectations, some of which are very valid. Furthermore, the proliferation of decision makers and the geographic split of the ICTR between Kigali, Arusha and The Hague, have made it even harder for domestic NGOs to cover and follow the activities of the Tribunal.

It is interesting to note that the influence of national NGOs started to grow significantly from 2000 when some of them such as IBUKA and AVEGA, developed their capacity to project their activities and expand their network far beyond the borders of Rwanda61. Some Rwandan Women’s groups such as Pro-Femmes and AVEGA formulated their demands to the ICTR through international NGOs such as the NGOs Coalitions on Women’s Human Rights in Conflict Situations. The appointment of a gender observer for the ICTR by the international NGO Coalition, who was chosen among the Rwandan community, has created a bridge between domestic women’s advocates and the International NGO Coalition. On March 2001 some Rwandan women’s groups such as AVEGA joined the NGO Coalition in filing an amicus brief before the Trial Chamber in the Cyangugu case.

Because most genocide survivors live in endemic poverty in precarious health situations, many of the demands and needs expressed by domestic NGOs representing victims are related to their economic, social and cultural rights, areas in which the Tribunal unfortunately has very little to offer62. The ICTR is mainly focused on providing retributive justice (punishing the perpetrators). However, it operates in a context of high economic and social vulnerability, where judicial remedy is not always the first priority. The issue of compensation and other matters involving the allocation of resources advocated by victims’ NGOs had proven to be far beyond the reach of the Court 63. This

61 This growing access of Rwandan NGOs representing victims to international forum culminated in the organizations of the Genocide Victims International Conference in Kigali on 25-30 November 2001. This important even was jointly organized by the New York based Group Project for Holocaust Survivors and Their Children and IBUKA, a Rwandan genocide victims NGO. The conference reflected on the challenges of "Life after Death" among the survivors of genocide around the world and enabled holocaust survivors, Armenians, Bosnians, Cambodians and other survivors of genocide exchange ideas with Rwandans about how to honor the memory of the dead while improving the living conditions of the living. International participants at the conference include genocide survivors and descendents of survivors from Israel, Armenia, Native Americans, Native Australians and Bosnians. Leading academics and scholars from the fields of law, psychology, economics, history, sociology and religion are also participating. 

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situation is incompatible with the principle of indivisibility and interdependence of the two sets of human rights64.

At the same time, the indictment of suspects and accused persons by the ICTR has generated has ironically meant that they are enjoying a better standard of living and some have managed to find sophisticated strategies to abuse the legal aid system and improve their economic situation65. By failing to respond to the demands for restitutive justice from the victims living in abject poverty and sometimes with illness such as HIV/AIDS, the Tribunal is facing a moral dilemma with the risk of becoming irrelevant for the people of Rwanda and disconnected from the environment it was supposed to adjudicate and regulate.

ICTR President, Ms. Pillay, during her statement to the Security Council on 29 October 2002 acknowledged that “many Rwandans have questioned the ICTR’s value and its role in promoting reconciliation where claims for compensation are not addressed. For every hour of every day over the past seven and half years, we have lived with the voice of the survivors of genocide, so we strongly urge the United Nations to provide compensations for Rwandan victims”.

The globalization of criminal justice cannot exist independently of the people for whom it is sought. Transplanting a “first world” justice committed to traditional western liberal values in a third world and post genocide context without the necessary safeguards and adjustment to make it relevant has proven to be one of the major shortcomings of the ICTR. The aspiration to justice is part of the universal human spirit and the indictment, arrest and conviction of perpetrators of crimes under the jurisdiction of the Tribunal is critical and paramount to the victims. At the same time, it is also obvious that for these traumatized, sick and impoverished genocide survivors, convicting a perpetrator to 12, 25 years or even life sentence does little to improve their living conditions.

In an emotionally charged Rwandan context the retributive justice approach adopted by the ICTR is sometimes counterproductive. Social tension is aggravated by the fluctuation of human rights standards between the ICTR and Rwandan Courts and the imbalance between the treatment of perpetrators and victims before the ICTR. Introducing a restitutive justice approach is likely to reconnect the Tribunal with the Rwandan societal environment and make it relevant to the victims. As Mr. Laurent Walpen, former Director of Investigations of the Rwandan Tribunal, recently stressed, the

62 This is a confirmation of a pattern that was described during a retreat of human rights activists co-sponsored by Harvard Law School Human Rights Program and Human Rights Internet. See Steiner Henry J. Diverse Partners: Non-Governmental Organizations in the Human Rights Movement, HRPHLS/HRI, 1991, P 29.63 It should be noted that this situation is not consistent with international human rights standards. See Roht-Arriaza N. “Sources in International Treaties of an Obligation to Investigate, Prosecute and provide Redress” Impunity and Human Rights in International Law, Oxford University Press, 1995 PP 24-38 See also Frumer P. “La reparation des atteintes aux droits de l’homme internationalement protégés-quelques donnees comparatives” in Revue trimestrielle des droits de l’homme, 1996 P 539.64 See Steiner Henry J. & Alston Philip, International Human Rights in Context, Oxford, 2000 P. 27765 Having being physically present at the arrest of more that twenty accused persons in different African countries, I witnessed the abject poverty in which most of them were living as refugees and the transformation that occurred upon their arrival at the UN detention facility in Arusha.

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loss of a witness due to lack of proper health care could have a negative impact on judicial proceedings. In addition a victim who feels neglected will not be willing to cooperate with the Tribunal66.

An attempt to increase the responsiveness of the ICTR to domestic NGO demands on restitutive justice was made by the former Registrar, Mr. Okali, in May 1998 who introduced the “program of assistance for justice and reconciliation” with the view of enabling surviving victims of the genocide in Rwanda to participate effectively in the Tribunal proceedings67. The main goals of the program included providing financial support to projects run by domestic NGOs representing victims (i) for the physical and psychological rehabilitation of victims through medical care, in particular for female victims of rape and in the context of which they are provided legal counseling in relation with the Tribunal’s work; (ii) to enhance the capacity of victims to support themselves by providing of legal assistance and advice and by walking them through relevant administrative and legal procedures; (iii) to facilitate the self-empowerment of victims by supporting small-scale revenue-generating activities to enable them to meet the basic costs of their legal dealings.

The program of assistance to victims was funded in part from the Tribunal’s Voluntary Contribution Trust Fund and in part from additional contributions received from donors for the specific purpose. It was implemented through domestic NGOs already active in the area of victims rights. The Victims’ and Gender Support Unit oversaw and implemented the support program’s activities for witnesses and potential witnesses. Domestic NGOs already operational in Rwanda were selected to provide services in different areas of the country where the Tribunal had selected witnesses and identified potential witnesses. These NGOs provided legal guidance, psychological and medical rehabilitation and other forms of assistance such as resettlement.

The Unit provided counseling services both in Kigali and Arusha. It identified the psychological needs of traumatized victims who were potential and selected witnesses, especially of female victims of sexual violence, and provided a timely response to these needs at the investigative, trial and post-trial phases. Confirmed and potential witnesses also received basic physical rehabilitation by a nurse to ensure they were in good heath when the time came to testify. A legal guidebook was prepared in order to provide information to victims and potential witnesses regarding their rights, participation in Court proceedings, as well as basic information about Tribunal’s rule and regulations68.

The implementation of this program from 1998 to 2000 was quite successful and received very positive feedback from the community of victims and genocide survivors. Boosted by this success, the Victims’ and Gender Support Unit participated in ICC

66 See Walpen Lauren, Quelques Considerations sur la Direction des Enquetes d’un Tribunal Penal International, 13 March 2003, contribution to an expert consultation process on general issues relevant to the ICC Office of the Prosecutor, ICC-OTP 200367 See Dr. Agwu Ukiwe Okali, Rwanda Genocide: Towards a Victims-Oriented Justice – The case for an ICTR Assistance to Victims Programme, Arusha, 22 June 1998.68 A/55/435- S/2000/927 United Nations, General Assembly/Security Council, Fifth annual report of the International Criminal Tribunal for Rwanda for the period 1 July 1999 to 30 June 2000 P 14-15

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meetings to share the ICTR’s experience in the area of victim and gender issues and working in closely with human rights NGOs to ensure victims and gender sensitivity within the ICC Rules of Procedure and Evidence. This was truly the golden age of harmonious relationship between the Tribunal and domestic NGOs representing victims.

However some observers have expressed concern that the Registrar’s neutrality and fair trial guarantees could be severely compromised. In addition, the program might be perceived by the defense or the chambers as “buying” witnesses and thus damaging their credibility. This victim-friendly program, based on overwhelming demands for restitutive justice from NGOs, was subsequently stopped on the ground that it was not within the mandate of the Tribunal. This decision contributed increasing tensions between the Tribunal and domestic NGOs. In January 2002, a coalition of genocide survivors’ associations in Rwanda, headed by IBUKA and AVEGA, officially announced that they would suspend any further cooperation with the ICTR.

In a press release dated March 1 2002, they confirmed the suspension of their relationship with the Tribunal and gave the following reasons: the recruitment of investigators involved in the genocide or related to persons facing charges; the lack of protection for witnesses both in Arusha and after they have testified; the harassment of witnesses by defence lawyers during cross-examination, in particular when questioning women who had been raped; the accusation by defence lawyers that IBUKA, both the association and its members, were organized groups of informers; the exclusion of victims from involvement as parties in the proceedings; the lack of confidentiality covering the identity and content of statements made by witnesses, even though they are protected, leaving them open to threats; the lack of medical care for victims called as witnesses; and the lack of compensation for lost income for certain witnesses.

This situation has disrupted investigations and a number of trials have been postponed because witnesses for the Prosecution were not allowed to travel. In this context, the FIDH sent an international fact-finding mission to Arusha, Tanzania and Kigali, Rwanda, to collect information on the role and position of victims with respect to the ICTR69. The representatives of victims rights groups interviewed by the FIDH admitted taking a hard line but said that they had to talk tough to get a minimum in return. They also admitted that some matters were indeed inherent in the statute of the ICTR, such as victims not being able to be represented in a trial.

III- The restrictive cooperation model: working with humanitarian actors

The International Committee of the Red Cross (ICRC) and the United Nations High Commission for Refugees (UNHCR) are entrusted with unique responsibilities. Each is the guardian of international instruments that were inspired by some of humankind's noblest ideals and necessitated by its worst tendencies. The 1951 Refugee Convention and the four 1949 Geneva Conventions for the Protection of War Victims, 69 See International Federation for Human Rights, Victims in the Balance, Challenges ahead for the International Criminal Tribunal for Rwanda, Report N0 329/2 November 2002. The report confirmed that the Government of Rwanda has been trying to use this crisis for their political goals including blackmailing the ICTR and preventing the investigations into the crimes committed by its own officials.

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along with their respective protocols, have the same basic purpose — protecting the safety and dignity of individual human beings70. They both face the moral dilemma of accommodating victims of armed conflicts and belligerents in order to preserve their operational capacity.

In performing their duties in complex and volatile environments, they have developed a certain proximity and even closeness with the perpetrators of crimes under the jurisdiction of the international criminal justice system. These two organizations can potentially be a crucial evidential source for a war crimes investigator. These organizations are situated at the center of action, yet remain objective, distanced and professional in their observations. Their insights could therefore be crucial for the prosecution of “big fish” suspects against whom evidence is particularly difficult to obtain. However, the ICRC and UNHCR have a long-term view of acting in trouble spots. They believe their behavior in one conflict will impact on the way in which they are perceived in the next conflict. Their concern for the safety of humanitarian personnel is of primary importance and they are accordingly reluctant to provide extensive information to the Tribunal.

A-Dealing with UNHCR: facing restrictive cooperation

UNHCR’s mandate is to ensure that the rights of refugees and internally displaced persons, as provided under international humanitarian and human rights law, are fully respected. Despite the limitations of working under Rule 70 (B) of the Tribunal’s Rules of Procedure and Evidence, the relationship has been of some benefit to both UNHCR and ICTR to date.

1) UNHCR as a Rule 70 provider

The standardized procedure for cooperation between UNHCR and the Tribunal requires that the OTP will seek information, documents and testimony from UNHCR only when all other sources of information have been exhausted and no other adequate or legally admissible source is available71. All cooperation by UNHCR with the OTP, including documents provided and interviews conducted with current and former staff members are carried out pursuant to Rule 70 (B), (C) and (D) of the Tribunal’s Rules of Procedure and Evidence. Rule 70 permits the Prosecutor to receive information on a confidential basis, in order to generate new evidence that the prosecution could chose to disclose at trial.

Unless UNHCR specifically consents in writing, the OTP will not disclose that UNHCR is providing assistance in connection with an investigation or trial to anyone outside the OTP. All requests for cooperation from the Tribunal must be sent to the Director of UNHCR’s Department of International Protection72. No approaches or 70 Ruud Lubbers, Foreword by the High Commissioner for Refugees, International Review of the Red Cross, N0 843, 2001, PP577-57971 See UNHCR and ICTY/ICTR Office of the Prosecutor (OTP): A Framework of Co-operation.72 Ibid

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requests may be made by OTP staff directly to current or former UNHCR staff members, or to UNHCR archives without prior agreement.

Regarding documents, the cooperation agreement requires that requests to review UNHCR documents provide UNHCR with specific details on the nature, source, approximate date and subject of documents sought. Rule 70 protection includes all documents, except provide public domain documents including press releases and weekly public reports, which UNCHR will provide without any restriction and without Rule 70 protection. 73.

UNHCR will provide copies of any documents requested by the Tribunal after reviewing the document and where necessary, redacting passages that in UNHCR’s judgment impact on its security and the effectiveness of its operations, especially passages that contain names and locations of UNHCR staff, refugees, displaced persons and others whose identity UNHCR is obliged to protect. In the event that UNHCR provides the documents in un-redacted forms, OTP will subsequently provide UNHCR with the opportunity to redact the document before any of them are use or sought to be used for any purpose other than OTP internal review74.

Regarding interviews, current or former UNHCR staff who consent to be interviewed by the OTP, will be made available for interview, ordinarily at UNHCR headquarters or at a UNHCR field office. As a rule, the UNHCR staff member will be accompanied by an UNHCR observer or UNHCR counsel. If a former UNHCR staff member approaches the OTP or a member of its staff directly the OTP will refer the UNHCR staff member to UNHCR headquarters for guidelines about these procedures75.

The OTP will not pursue substantive conversations with UNHCR staff members without the consent of UNHCR. The UNHCR staff member will not be asked to sign a witness statement or otherwise to formally confirm the accuracy of any draft witness statement or if such draft witness statement does not exist, a summary of the interview. Unless UNHCR and the staff member specifically consent in writing the OTP may not tape record the interview. If such consent is given and a record is made, the OTP will provide a copy of the recording to UNHCR76.

As can be seen, the principles of the cooperation between the Office of the Prosecutor are indeed very restrictive. There are many reasons why UNHCR is cautious about in its dealings with the Tribunal. Firstly, UNHCR personnel must have access to, and maintain credibility with political and military leaders in areas of conflict in order to execute its mandate. UNHCR is extremely concerned that if its cooperation with the Tribunal became widely known, its personnel in the field would be perceived by parties to the conflict as criminal investigators and potential witnesses. This would jeopardize access and credibility and undermine their ability to do their job. Secondly, UNHCR are posted throughout the world in high-risk environments including situations of continuous conflicts. Disclosure of UNHCR’s cooperation with the Tribunal may jeopardize the safety of its staff and of refugees and displaced persons. Lastly, unless UNHCR is 73 Ibid74 Ibid75 Ibid76 Ibid

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perceived to be a neutral and impartial humanitarian actor it cannot operate or effectively carry out its mandate.

2) A record of symbiotic cooperation

In practice, UNHCR has cooperated productively with the OTP for several years, both during investigations and at trial. In the Rwandan context, the 1994 genocide was followed by a massive flow of refugees into neighboring countries, with key judicial actors among them, such as suspects, witnesses and victims. The majority of these people went to live in refugee camps controlled by UNHCR in former Zaire and Tanzania. Later, those with financial resources left the refugee camps and fled to other African countries such as Kenya, Zambia, Cameroon, Congo Brazaville, Togo, Benin and Ivory Coast. From there, some found refuge in European, North American and Asian countries. Wherever they traveled in the world, many Rwandans (among them suspects, witnesses and victims) sought and received the protection of UNHCR.

Following discussions held between the UNHCR representative in Kigali and the Deputy Prosecutor in June 1998, the ICTR and UNHCR entered into closer cooperation. At a meeting on 8 June 1998, it was agreed that ICTR would help to vet Rwandan asylum seekers against a list of genocide suspects held in the OTP database. For their part, UNHCR undertook to cooperate with investigations and prosecutions upon request being formally addressed by the Prosecutor.

In order to preserve confidentiality in the management of information exchanged by UNHCR and the ICTR, only the Deputy Prosecutor or his designate would receive requests from UNHCR. This arrangement ensured confidentiality. Secondly, it ensured that the neutrality of UNHCR in dealing with the Tribunal remained of high integrity at all times.

In accordance with that agreement, the Deputy Prosecutor identified the Director of Investigations as the liaison focal point for all matters of UNHCR/UNICTR cooperation. The Director of Investigations was tasked with receiving cases of asylum seekers with particulars of each applicant; conducting a background check in the analyst database in order to determine whether the details were consistent and whether there was any known involvement in genocide; and informing UNHCR of its findings.

Where information existed in the database concerning a particular asylum seeker, ICTR investigators were to undertake inquiries in the asylum seeker’s place of origin before the Director of Investigations could give clearance. Two Toyota Runners were provided by UNHCR to ICTR in order to facilitate the work of the investigators. Since 1998, more than 200 cases of asylum seekers have been screened by the analyst team. In some instances this has led to the identification and localization of a number of suspects and key witnesses who may be called to testify.

The Intelligence and Tracking Unit of the OTP, which is in charge of locating and securing the arrest of suspects and accused persons all over the world, has also benefited from this cooperation with UNHCR. In the past some UNCHR field officers have been of great help in areas such as the relocation of families of informants (also Rwandan

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refugees). Two former mayors wanted by the Tribunal were arrested in a refugee camp in Kigoma, in Tanzania. The UNHCR was not involved in this arrest but nevertheless raised no objection to the ICTR operation. The Witness and Victims Support Section of the ICTR has also enjoyed excellent cooperation from the regional UNHCR agencies which have assisted the Tribunal in facilitating the movement and the protection of witnesses among Rwandan refugees in countries such as Benin, Togo, Swaziland, the Congo and Kenya.

The cooperation between UNHCR and the ICTR seems to have been driven by the fact that the two agencies are members of the UN system. Because the ICC is not a UN body it will not necessary enjoy the same advantages. In fact, being part of the UN system, despite the bureaucratic constraints, was a reliable asset for the ICTR. UN agencies like UNDP have been extremely useful in facilitating operations of the Office of the Prosecutor of the ICTR beyond Rwandan borders. During some missions the UNDP country office provided logistics and contacts with government officers to investigators.

B- Working with ICRC: Facing the absolute right to confidentiality

As the guardian of international humanitarian law, the ICRC supports efforts to end impunity for war crimes and is keenly interested in the establishment and jurisprudence of international criminal tribunals. The ICRC has strongly advocated for the development of an international criminal justice system as a credible way of enforcing international human rights and humanitarian law. However, the ICRC is also deeply concerned about its independence, impartiality and neutrality, indispensable prerequisites for humanitarian action77. Reconciling these two conflicting interests has placed the ICRC in a platonic relationship with the international criminal justice system.

The Prosecutor of the Ad hoc Tribunals attempted, in the case Prosecutor v. Simic et al, to introduce testimony by a former ICRC employee78. The Prosecutor argued that the decision either to uphold or to reject the confidentiality of ICRC testimony should be made by the Court on a case-by-case basis. The Prosecutor argued that because the obligation to disclose would only be required in exceptional cases, the ICRC’s confidentiality requirement would be adequately protected by a balancing test, in which the Court would weigh the importance of the evidence in question against the concerns of the ICRC79.

This argument was rejected by Trial Chamber III of the ICTY. In its decision of 27 July 1999 the Court stated that, as a matter of customary international law, the ICRC enjoys an absolute right of non-disclosure of information relating to its work80.

In the Rwandan context, the ICRC was a major information source, because of its exceptional and unique capacity to penetrate several warring factions during the

77 See Pictet J. Red Cross Principles, ICRC, Geneva, 1956 78 See Gabor Rona: “The ICRC Privilege not to testify: confidentiality in action” IRRC, N0845, P207-219, 200279 Ibid80 See Stephane Jeannet: “Recognition of the ICRC’s long-standing rule of confidentiality: An important decision by the International Tribunal for former Yugoslavia” IRRC, N0 838, June 2000, PP 403-425

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genocide. The ICRC was the only international NGO which stayed in Rwanda for the whole period of the killings. Their hospital was on the front line and was shelled up until 6 July 1994, when Kigali was fully taken by the RPF. ICRC staff witnessed people being massacred in front of them, in their cars and ambulances. They were in contact with all parties of the Rwandan drama in order to negotiate unhindered and ongoing access to victims and to obtain security guaranties for their staff.

The management of the OTP approached the ICRC’s Office in Kigali several times. A number of meetings took place in early 1995 and a liaison officer was subsequently appointed by the Deputy Prosecutor to follow up these preliminary contacts. The liaison officer was quite disappointed by the overall cooperation with ICRC, which was keen to meet with the ICTR but only to discuss generalities. It would have been extremely useful for the Tribunal to obtain the ICRC’s daily notes and radio records as well as testimonies from staff present in Rwanda during the genocide. This was not possible despite several attempts.

ICRC and ICTR are both part of the international public order and should be able to work more effectively together to advance their common goals. The adherence to the principles of independence, impartiality and neutrality should not be perceived as protecting victims and perpetrators equally. ICRC is a major witness of man made disasters and its neutrality imposes silence, which from the standpoint of international criminal justice, is problematic81. It is hard to stay neutral in a context such as Rwanda where genocide is in question. No privileged status should stand in front of a jus cogens crime such as genocide.

The OTP should be in a position to seek information, documents and testimony from the ICRC when other sources of information have been exhausted. The Prosecutor is fully equipped, through the safeguards of Rule 70 of the Tribunal Rules of Evidence and Procedure, to meet the confidentiality requirements of the ICRC. By cooperating with the international justice system, the ICRC could contribute more proactively to the development of preventive approach to international humanitarian law through deterrence.

Rule 73 of the Rome Statute of the ICC has tried to find a compromise between absolute confidentiality and Court intervention in determining, on a case-by-case basis, what ICRC information, if any, should be released. Rule 73 requires that the ICRC consult with the Court when its information is considered to be of great importance for a particular case. The ICRC still has the discretion to release evidential material in exceptional cases where, after evaluation it decides that there is no major risk of jeopardizing it operations82.

Minimal cooperation has been witnessed in the field. The ICRC monitored the United Nations detention facilities (UNDF) where suspects and accused persons are held. They have visited the UNDF on several occasions to make sure that the conditions and

81 See Kouchner B. Le malheur des autres, Paris, Ed Odile Jacob, 1991. See also Torrelii M. “La neutralite en question” in Revue General du Droit International Public, Tome 96/1992/1 PP 5-43 and Desthexe A. Rwanda: Essai sur le genocide, Bruxelles, Ed Complexe, 1994.82 Stephane Jeannet: Testimony of ICRC delegates before the International Criminal Court” IRRC, N0 840 December 2000 PP 993-1000

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treatment of detainees held in connection with the 1994 genocide are in accordance with international standards. The ICRC reports its findings to the Tribunal’s authorities. Finally the ICTR and the ICRC have engaged in a joint campaign to promote international humanitarian law (IHL) within African universities. The international moot-court competition on IHL organized by the ICRC and the ICTR and held in November 2002 in Arusha, Tanzania sparked a great deal of interest. Nine teams from universities of Ethiopia, Kenya, South Africa, Tanzania and Uganda took part and the even attracted extensive media coverage83.

Conclusion

This article has reaffirmed the growing impact of non-state actors on the process of creating international criminal law. It has also demonstrated the cross-cutting nature of human rights as well as the cross fertilization between the work of human rights organizations and the new international criminal justice system. Indeed, justice is essential to the human rights cause and the creation of ICTR was part of the response of the UN human rights system to the genocide in Rwanda. ICTR and human rights organizations have long shared a close relationship based on the determination to fight impunity and uphold standards of protection of human dignity.

The cooperation between human rights organizations and the emerging international criminal system is crucial in the context of the operations of the International Criminal Court. Because of the long gestation period on admissibility of cases before the ICC, it is important for its Prosecutor and the UN human rights system to work together. This cooperation would be a win-win arrangement. It would benefit the UN human rights system by opening a window of opportunity to respond more effectively to new challenges and adapt successfully to changing international environment. The ICC would also be able to take advantage of the work product generated by the UN human rights system including access information and evidence gathered by human rights field officers, as well as the findings generated by international commission of inquiries, special procedure mandate holders, and treaty bodies. For the UN human rights system, cooperating with the ICC will connect it to a credible judicial enforcement mechanism, helping overcome one of its major shortcomings. The UN human rights system would be the human rights conscience of the ICC, by reminding the Court when required that they were created to help to improve the human rights situation in the world and that they should follow high standards in performing their duties. Indeed, some actors involved in the process of international criminal justice do not always perceive themselves as a team player in the overall effort to improve the human rights situation in the world.

However, despite these opportunities for positive interaction, there are important differences between the human rights system and international criminal justice that need to be addressed. Clearly there is a difference of approach between fact-finding conducted

83 See ICRC 2002 Annual Report, P. 131

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by human rights organizations and criminal investigation carried out by an international tribunal. Fact-finding by NGOs, thematic mechanisms, country rapporteurs or treaty bodies is part of a process that seeks to bring pressure to bear primarily through public reporting. To publicize their findings human rights advocacy makes extensive use of the media. Criminal investigations, by contrast, need to be conducted discreetly and confidentially. If there is inadequate coordination, such investigations could be jeopardized by public statements made by human rights organizations.

More importantly, investigations for prosecution are more demanding both in terms of process and substance. The standard of proof is higher and the evidence gathered by investigators is designed to build cases against specific targets. Fact-finding conducted by human rights bodies, focuses mainly on victims, while investigations for the purpose of prosecution focus more on the perpetrators. Not all victims are good prosecution witnesses. Victim testimony, which is central to bring out the facts in human rights work, may play a small role in the prosecution of leaders and instigators of genocide. The Rwandan experience has shown that, in general, victims cannot identify those high level perpetrators who gave the orders without themselves participating in the killings.

Another important lesson from the Rwandan experience is that, when a myriad of organizations and groups are conducting multiple investigations, using different procedures, however well intentioned, they harm the prosecution effort. This can lead to disruption of the crime scene, loss of evidence, security concerns for witnesses and general confusion and misunderstandings about who is suppose to do what.

It is therefore highly advisable for the Prosecutor of the ICC to assist in strengthening the investigative capacity of UN human rights field officers. In addition, members of UN investigative bodies sent by the Security Council or the human rights Council to collect facts on gross human rights violations should be chosen not because they are public figures whose presence on the mission could attract attention, but based on their expertise in investigating mass atrocities.

Notes

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