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In-Depth:
Justice for a Lawless World? Rights and reconciliation in a new era of international law
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 Download this in-depth report
Part I 6.36 MB
Part II 2.40 MB
- Professor Noam Chomsky
- ICC Chief Prosecutor Moreno Ocampo
- Samantha Power, Professor of Practice in Human Rights Policy
- Juan Mendez ,President of the International Center for Transitional Justice
- Justice Geoffrey Robertson Q.C.
- Dr Fanie du Toit, Programme Director for Educating for Reconciliation at the Institute for Justice and Reconciliation in South Africa
- Abdullah An-Na`im, Ph.D, Charles Howard Candler Professor of Law at Emory University, Atlanta, GA, USA
- Augustin Nkusi, the Director of the Legal Support Unit, National Service of Gacaca Jurisdictions, Rwanda
- Benjamin Gumpert, counsel representing Justin Mugenzi, who is currently on trial at the International Criminal Tribunal for Rwanda
- Hanny Megally, Director, Middle East and North Africa Program, International Center for Transitional Justice (ICTJ)
- Paul van Zyl, Country Programme Director at the International Center for Transitional Justice (ICTJ)
- Johnston Busingye, Secretary General of the Ministry of Justice in Rwanda
- Dennis McNamara (Special Adviser on Internal Displacement to the UN’s Emergency Relief Co-ordinator and Director of the OCHA Inter-agency Internal Displacement Division) on the rule of law
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GLOBAL: Interview with Benjamin Gumpert, counsel representing Justin Mugenzi
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Benjamin Gumpert, counsel representing Justin Mugenzi, who is currently on trial at the International Criminal Tribunal for Rwanda. Justin Mugenzi was a politician who participated in the creation of the Liberal Party and is alleged to have led its Hutu Power faction - an allegation that Mugenzi and his counsel strongly deny.
QUESTION: What do you say to those victims of the genocide in Rwanda who criticise the ICTR on the basis that the people being tried live in luxurious conditions, while they still live below the poverty line?
ANSWER: This is an international tribunal which attempts to operate on international bases of fairness and standards of justice. When a court such as this is set up, it must attempt to reach the minimum internationally accepted standards of justice. It is odd to focus on the living standards of the defendants, when those are no more luxurious than the standards afforded to any prisoner in the US or European justice systems. The way that the priosners are kept here is just one of the many ways in which this tribunal differs from what goes on in Rwanda, and is probably the least important. Here there are attempts to hold a fair trial, which is heard in full and allows the defence to call witnesses. These are qualities which are less strongly present in trials in Rwanda.
If we are going to comply with international standards then we need to provide the defendants with decent food, allow them to wear their own clothes and afford them a certain amount of privacy. These men have, after all, not been convicted of anything. My client, Justin Mugenzi, has been living in custody, presumed innocent, for seven years. To hold him and others in the conditions of most African jails for such a period of time would have been a travesty.
Q: Justin Mugenzi was arrested in 1999 and his trial opened in April 2003 but is still ongoing. Why are the trials taking so long?
A: The ICTR has been provided with inadequate facilities. There are not enough judges and not enough courtrooms. Rather than making this plain and holding trials when there is the capacity to start and finish them in one go, the choice has been made to present the situation as though 50 out of the 70 people indicted are on trial. This is not actually true. The trials are not continuous. So the appearance is given that matters are moving forward, but trials are consistently interrupted to make way for each other.
In the case I am working on, the prosecution concluded its evidence in June 2005. There was a recess for a month when the court was on holiday. Then after the court holiday, other trials were heard rather than ours. So we began to present our evidence in November, when we were granted hearing time amounting to just under eight weeks. Thereafter the hearing did not reconvene until March 2006. We are now presenting further evidence until 5 May, and then the case will not reconvene again until 20 August - again for another eight-week session. In the whole of the year 2006, despite our eagerness, anxiety even, to proceed with the trial, the court will only have been in session for 15 weeks.
Q: Do you think that all the trials will be finished by 2008 and the appeals by 2010?
A: I cannot tell you that. All I will say is that the Mugenzi team is near to completing the submission of our evidence. By the time we have finished we will have called about 25 witnesses in a period of 10 months. There are three other defendants in the case. I see no reason why they would call fewer witnesses. On that basis, the trial would have another 30 months to run, and that is before the final submissions are heard and judgments handed down.
It is likely that my client will have been in detention for more than 10 years before a judgment is given. No serious, organised legal system, which I respect, would allow that to happen.
Q: Do you think that the work of the ICTR should be transferred to Rwanda when the ICTR is wound up in Arusha?
A: No. The ICTR was situated away from Rwanda in the first place for a reason. The current Rwandan government regards those detained in Arusha as their bitterest enemies. It was internationally recognised that neutral territory was preferable. It was recognised that otherwise there would be pressure exerted on the defendants, the witnesses and the very machinery of justice. Despite the ICTR being located in Arusha, the Rwandan government has already exerted such pressure.
When Carla del Ponte was chief prosecutor for the ICTR, she had the courage to raise the issue of trials for the crimes committed by the RPF. Fairly soon afterwards, she left the tribunal. I am not saying the two things are connected, although some have. What is certain is that since her departure, the subject of RPF prosecutions is stone cold.
The International Crisis Group, a respected body of neutral international observers, including former cabinet ministers and diplomats from stable and mature democracies - who draw up reports on flashpoint areas around the globe - has also stated in its report (No. 30 entitled: “L’urgence de juger”), that it was made aware that the supply of witnesses permitted to travel from Rwanda to the tribunal would dry up, should members of the RPF be indicted. In fact, so it stated, at one point, the Rwandan government stopped sending witnesses until the issue was resolved and discussions of RPF indictments were halted.
Q: Hasn’t there been discussion in the last few months about potential investigations?
A: I have not seen any evidence of that or serious talk of RPF prosecutions. In fact, the Head of the Special Investigation Unit has ceased his work. For the sake of appearances, there may be some papers being shuffled in his office, but the serious work has now stopped.
Q: Do you think it is right for the UN, a body that has confessed that it failed to stem the genocide, to dictate the terms of justice if the Rwandans would prefer the alleged instigators to be tried in Rwanda?
A: The ‘given’ in your question is, in itself, a fairly contentious statement. Massacres certainly happened and hunderds of thousands of people were killed. But although the UN had a presence there, I am not sure it is correct to say they could have stemmed the genocide.
Q: Kofi Annan has said that the UN could have done more.
A: Kofi Annan is a diplomat. He needs to make his partners more emollient. I am not sure that the fact he said that is conclusive. But let us assume that the proposition is correct. The UN is the only body that could realistically set up an international court. The Rwandan government, with its crystal-clear prejudices, obviously could not have provided a fair trial. There have been acquittals in the ICTR. Bagambiki and Ntagerura have just had their acquittals confirmed. The chances of acquittals in Rwanda would have been, I would say, next to nil.
The other point is how do you know what Rwandans want. The people there are not free to exercise any real degree of free speech. They speak when the government requires them to. I would not have total confidence in what IBUKA [the umbrella organization of the 1994 Rwanda genocide survivors] or other victim organisations there have to say. You only need to read the recent Human Rights Watch report on the Rwandan government’s actions. It has ejected several NGOs from Rwanda because they were too critical of the gacaca process. It accused them of having a genocidal ideology. These are internationally recognised NGOs, some of whom have even been supporting the Rwandan Justice Ministry in its work.
Q: What do you think of the gacaca process?
A: I have to say that I am not an expert. I am speaking as someone who is as well informed as the average person who reads a quality newspaper every day.
I think the idea of people’s justice is in theory delightful. However, I think that the Rwandan people are no more likely than any other ordinary people are (by that I mean non-lawyers) of being able to conduct complicated trials of genocide or other serious offences. There is little chance of justice in these circumstances.
Q: It is unfeasible though, is it not, to suggest that all of those who were complicit in the genocide be given a full trial in the manner of the ICTR?
A: I think either you can hold a fair trial or you cannot. But I do not think that you can dilute the principles of justice. There seems to be an element of double standards at play here. You are effectively saying that the manner of trial that we consider appropriate in courts in North America, Europe or other international proceedings does not need to be observed in Africa.
I doubt plucking people from communities to be judges and to hold trials in a gladiatorial atmosphere is going to provide a fair trial. These procedures do not seem sound, and I doubt they would stand up to close scrutiny.
Q: Do you think a hybrid tribunal, such as the one going on in Sierra Leone, would have been better than the ICTR?
A: That would depend on what was proposed. It would have been better had there been more courtrooms and more judges.
Q: Do you think it would have been better to have at least one Rwandan judge?
A: The Rwandan government did propose that, but the reason they wanted to have one Rwandan judge was so that they could exercise some control over the proceedings.
A recent development in the case I am involved with illustrates their attitude to the Tribunal.
A key witness for our defence is a woman called Agnes Ntamabyiliro. She was a founder member of the PL, the party of which my client Justin Mugenzi was president. She was one of four members of the excutive committee of the PL. She was also a cabinet minister, and was the justice minister during the period from April to July 1994. Her evidence is crucial for many reasons, among them these three:
1. One of the major planks of the prosecutor’s case against the Government is that the Justice Ministry did not take any action to stop the killings. We contend that this was not practical given the circumstances. She is the witness best placed to comment on these matters.
2. My client has been accused of introducing an anti-Tutsi element to the PL. She can testify from first hand experience whether this is so or not.
3. If there was a conspiracy, as has been alleged, by the pre-April 1994 government to organise a plan of killing Tutsis, she would know.
We wanted to call her as our second witness after Mr Mugenzi. However, we were unable to do that, as the Rwandan government did not allow her to travel to Arusha.
In December, the government said she could not attend the trial but that she could only give testimony by video. We submitted a request to the Chamber that she attend in person, but this was again denied by the Rwandan government in April. So we asked the Chamber to make a ruling and order that she be transferred. The Chamber, to its credit, made such an order and reminded the Rwandan government of its obligation to comply with the statute and cooperate with the ICTR. It also reminded the government that it had a duty to report to the Security Council in the event that the Rwandan government failed to meet its obligations.
After a flat refusal, the Rwandan government then suggested, in a radio interview with the prosecutor general, that Agnes Ntamabyiliro was about to be tried herself. This had not previously been mentioned despite the fact that she has been in custody for nine years since her unlawful capture in Zambia and transfer to Rwanda. The Rwandan government criticised the court for its use of “excessive force” in demanding her attendance at the trial. We have been told that she will now attend but we do not yet know when. The Rwandan government continues to be in flagrant breach, without any explanation, of the order made by the Tribunal. We are entitled to doubt its good faith in the matter, and we do so.
In effect, the Rwandan government only began to contemplate allowing her attendance when they realised that if they did not produce her, the Tribunal might accept the argument that there had not been a fair trial with the result that the indictment against Mr Mugenzi would have to be stayed.
Q: Are you optimistic about the process of reconciliation in Rwanda?
A: I believe the people there are as anxious as any people to achieve reconciliation. However, there is deep dissatisfaction amongst the Hutus in Rwanda that the RPF atrocities have not been prosecuted.
Many Rwandans seem to me to be highly educated and hard-working people. Those are qualities that I believe help any people to recover from such a trauma more quickly. However, the Kagame government is a murderous one that suppresses its people’s rights to freedom of conscience, association and speech, and conducts itself - especially with respect to the Democratic Republic of Congo - for its own immediate and personal benefit. I think that will have a negative effect on the prospects for reconciliation.
[ENDS]
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