Investigating Horror: Anatomy of the Interaction between the Office of the Prosecutor (OTP) and the Genocide Victims

in Rwanda*
Martin Seutcheu
1.

The Office of the Prosecutor of the International Criminal Tribunal for Rwanda is by its nature the component of ICTR most exposed to the effects of the mayhem and horror of the genocide that occurred in Rwanda. It is the Tribunal organ responsible for investigating and prosecuting persons for crimes set forth in Articles 2, 3 and 4 of the Statute1. The OTP is located in Kigali, Rwanda, at the very heart of territory in which the genocide took place. Investigators are in daily contact with victims and genocide survivors. They interview them, record their statements and can thus get a sense of the horror and terror related to this human tragedy. Some investigators have experienced signs of post-traumatic syndrome after such missions in the field. By working closely with people suffering from the effects of the genocide atrocities, the OTP has acquired a keen understanding of the victims pain and sorrow as well as their expectations with respect to justice and compensation. According to the Declaration of the Basic Principles of Justice for Victims of Crimes and Abuse of Power2, victims means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.

2.

3. The Declaration states that a person may be considered a victim regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the family relation between the perpetrator and the victim. The term victim also includes, where applicable, the immediate family or dependants of the actual victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.
4.

The Office of the Prosecutor was established to seek the truth rather than merely seek a conviction. It has the power to conduct independent and impartial investigations on behalf of the international community and to gather incriminating and exculpatory evidence in order to determine the truth of a charge and to protect the interests of justice. It should not seek or receive instruction from any Government or from any other source3.

Martin Seutcheu is the Special Assistant to the Director of Investigations, Office of the Prosecutor of the International Criminal Tribunal for Rwanda. This paper is a contribution made during the Genocide Victims International Conference in Kigali on 25-30 November 2001 organized by Dr. Yeal Danieli, Director the New York based Group Project for Holocaust Survivors and Their Children.

5.

The process of International Justice cannot exist independently of the people for whom it is sought. One of the main objectives of our mandate is to contribute to national reconciliation in Rwanda4. It is therefore important that the OTP remains open to the expectations of the people of Rwanda in general and the victims in particular. Victims are keen to see the Tribunal succeed in bringing to justice those responsible for the genocide and other violations of International Humanitarian Law during the events of 1994. With their input, victims provide the OTP with useful clues on the way they would like to see justice done. Their views and concerns are taken into consideration by the Prosecutor in the charting of OTP policy. This enables the OTP to contribute to the process of bringing the international justice closer to the people of Rwanda as required by the ICTRs mandate. The contribution of victims is essential in the work of the OTP

6. The Prosecutor is empowered to initiate investigations on the basis of credible information obtained from any source including governments, intergovernmental organizations, non-governmental organizations and individuals. In the Rwandan context not much documentary evidence exists. It was either destroyed or carried away by the perpetrators of genocide. As such, eyewitness testimony is vital in the work of the OTP. Most of the witnesses that provide evidence to the OTP are victims. Without their testimonies it would not be possible to file indictments and build a case against persons responsible for genocide and other violations of International Humanitarian Law in Rwanda in 1994.
7.

The Office of the Prosecutor does not work on the basis of allegations by victims and NGOs about who should be prosecuted. Only credible and reliable information is taken into consideration before initiating investigations. A screening mechanism is available to filter and distinguish between well-founded complaints and frivolous or vexatious allegations. The evidence is properly assessed in order to avoid attempts to divert the course of justice5. In the aftermath of the genocide, a number of non-governmental organizations emerged within Rwandan civil society to address the needs of victims. These NGOs represent a network of genocide survivors from where the Office of the Prosecutor draws many of its witnesses. Many of these NGOs are part of a national networks and coalitions, such as IBUKA, PRO-FEMME, AVEGA-Agahozo, Haguruka and one of their main objectives is justice for their members and beneficiaries. As such, this community has a stake in the work of the International Criminal Tribunal for Rwanda as a whole and the Office of the Prosecutor in particular. Building a bridge between the OTP and the victims

8.

9.

From the outset, the OTP and the network of NGOs representing the victims engaged in dialogue in the interest of their common objectives. The Prosecutor, Ms. Carla Del Ponte, has been keen to build on the interaction with the representatives of the victims and to learn from them. It is in this spirit that she specifically, requested that a meeting

be organized between the OTP and the NGOs representing the victims to discuss closer collaboration with the NGOs especially considering the assistance they have provided to the Office of the Prosecutor, and to chart out a course for constructive future commitment of the OTP vis--vis the community of victims in Rwanda.
10.

At a luncheon meeting in Kigali on 11th February 2000 between Ms. Del Ponte, the network of NGOs representing the victims and the survivors of the genocide, the OTP gave a brief overview of the its activities. Likewise the NGOs raised several issues regarding the work of the OTP, including witness protection, the trauma related to testimony by rape survivors, and victim compensation6.

11. Testifying in Court is universally known to be a difficult and emotionally trying process. It was agreed that the following measures would be implemented in the future to ease the process for witnesses: taking witness statements via video in their home areas, curtailing attempts by the defense to intimidate and confuse witnesses in the courtroom, and providing witnesses with counseling support for the duration of their testimony. These measures were aimed at protecting the integrity, privacy, physical and psychological well-being of victims of sexual assault. NGOs may also provide support to these witnesses by accompanying them to Arusha. 12. The meeting was essential in facilitating the responsiveness of the OTP to the victims needs and establishing 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 has been appointed within the OTP to develop and maintain contact with the network of NGOs representing the victims. 13. In this regard, NGOs are instrumental in the success of the work of the OTP, especially in facilitating investigations. Their role is crucial in identifying, locating and introducing witnesses to our investigators. In Rwanda, locating witnesses can be a challenge. There is no proper address system in many areas of the country; the high mobility of persons due to the effects of the war has made it difficult to locate witnesses; there is a lack of prompt and adequate communication facilities, such as telephones in rural areas, and one has to cover long distances to locate witness. Moreover, the fact that the OTP did not have offices in the prefectures makes it difficult for witnesses to approach investigators. Victims NGOs also played a critical role in preparing witnesses to have confidence and to open up to investigators. Most of the OTP investigators are foreigners, and witnesses coming from rural areas are illiterate and quite reluctant to meet our staff. 14. The role of NGOs representing victims is particularly critical in the investigation of sexual crimes. This is a sensitive and specialized area. Survivors of sexual offences are likely to be suffering from ailments and conditions emanating from their experiences. They may have contacted AIDS, gynecological complication, as well as psychological problems such as trauma, associated with their experiences. They may also have contacted unwanted pregnancies resulting in children from their aggressor. Without the

intermediary of NGOs the contact and the collaboration of this vulnerable category of witnesses would be particularly difficult. After testifying, NGOs continue to provide witnesses with trauma counseling and other support. Enhancing the participation of victims in international justice
15.

The Prosecutor stressed her understanding of the need to make the work of the Tribunal relevant to the people of Rwanda and reiterated her desire to hold part of trials in Kigali, to see victims and survivors of genocide being given greater voice in proceedings before the Tribunal and to improve the compensation of victims7. Holding hearings in Kigali

16.

One of the ways to enhance the participation of victims in international justice is to bring justice closer to the people. To ensure that the people of Rwanda, especially victims, are involved in the international justice the Prosecutor has given her full 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 premises of the Supreme Court of Rwanda, with the view to render it suitable for the Tribunal hearings8. The project which has the backing of both the Rwandan Government and the Office of the Prosecutor could become operational in the next few months. Achieving greater participation of victims in the proceedings

17.

The whole question of the participation of victims in the proceedings where their views and concerns may be presented had not been addressed when Ms. Del Ponte took office. She initiated proposals aimed at reaffirming the right of victims to be represented in the proceedings through the Civil Law concept of partie civile. She suggested that NGOs representing victims could organize themselves and appoint one individual to serves as an amicus curiae (friend of the Court) in all the cases 9. This will have the effect of providing a more specific and focused voice to the victims. The Prosecutor does not specifically speak on behalf of the victims, rather she speaks on behalf of the collective conscience of mankind. The representation of victims is also likely to bring more gravity in Court proceedings. In order to be successful, this initiative will require an amendment of the existing Statute of the Tribunal. Improving the law on victim compensation

18.

The issue of victim compensation has received the strongest from Prosecutor Carla Del Ponte. While the Tribunal was specifically mandated to prosecute cases against perpetrators of the genocide, there was no clear mandate as regards compensation. Immediately after taking up her duties, Ms. Del Ponte expressed her commitment to improve the law of victim compensation within ICTR. She has suggested that assets belonging to suspects and accused persons be frozen and allocated to victims10. According to the law governing International Tribunals, all claims for compensation

must be filed through the national court system11. Any change to that provision will requires a decision by the United Nations Security Council.
19.

This issue was raised by the Prosecutor on 26 June 2000 at Plenary Session. She also addressed the representation of victims through the use of amicus curiae. Later, the President of the Tribunal, on the behalf of judges, submitted the proposal to the Secretary-General on the issue of compensation for the victims of the events that took place in Rwanda in 1994, over which the Tribunal has jurisdiction. The judges agree with the principle of victim compensation, but believe that responsibility for processing and assessing claims for compensation should not lie with the Tribunal, but rather with other agencies within the United Nations system12. The response of the OTP to the search for the truth, justice, and memory of the victims

20. The information provided to the OTP by victims through their statements has made it possible to issue indictments, locate and arrest accused persons, bring them before Trial Chambers and secure their conviction. Arresting suspects and accused persons 21. The OTP has been particularly successful in cracking down genocide suspects around the world. The tracking and arrest of suspects and accused persons is one of the substantive activities of the Investigations Division of the OTP. Most of the 53 persons currently in custody were tracked and arrested by members of the Tracking Team of the OTP in more that 15 different countries in Africa, Europe and North America.
22.

Some of the major successes of the OTP in this area are the following: In July and August 1997 during the NAKI operation, nine suspects and accused persons were arrested in Kenya. The nine persons arrested were Gratien Kabiligi, Brigadier General of FAR (Force Arme Rwandaises), Jean Kambanda, Prime Minister, Pauline Nyiramasuhuko, Minister of Family and Women Affairs, Ngeze Hassan, editor-in-chief of the news paper Kangura, Sylvain Nsabimana, Prefet of Butare, Aloys Ntabakuze, FAR Battalion Commander, Georges Ruggiu, RTLM journalist, Arseme Shalom Ntahobali, businessman and Interahamwe, and Samuel Imanishimwe, FAR lieutenant.

23. In 1998, seven arrests were made mainly during the KIWEST operation which took place in April 1998 in Benin (Juvenal Kajelijeli and Joseph Nzirorera), Togo (Emmanuel Bagambiki and Edouard Karemera), Cte dIvoire (Omar Serushago; he surrendered to an OTP Investigator who took him to the Ivorian authorities), Mali (Mathieu Ngirumpatse), Namibia (Andr Rwamakuba). In 1999 eight arrests were made in several countries: Cameroon (Jrme Bicamumpaka, Minister of Foreign Affairs, Justin Mugenzi, Minister of Commerce, Prosper Mugiraneza, Minister of Civil Service), Kenya (Eliezer Niyitegeka, Minister of information, and Casimir Bizimungu, Minister of Health), and one arrest each in South Africa (Ignace Bagilishema),

Tanzania (Mika Muhimana), and France (Jean de Dieu Kamuhanda, Minister of high Education).
24.

From January to December 2000, the OTP was instrumental in the arrest of four accused persons that were located in Belgium (Augustin Ndindiliyimana, Gendarmerie Chief of staff), United Kingdom, (Tharcisse Muvunyi), Denmark (Innocent Sagahutu) and France (Francois-Xavier Nzuwonemeye). Samuel Musabyimana, an Anglican Bishop, was arrested in Nairobi, Kenya, on Thursday, 26 April 2001. Simeon Nsamihigo, former Deputy Prosecutor of Cyangugu, was arrested on Saturday 19 May 2001, in Arusha, Tanzania. Emmanuel Rukondo was arrested in Switzerland on 12 July 2001. The same day, Simon Bikindi, singer of hate songs, was arrested in Holland, and Emmanuel Ndindibahizi, a former Finance Minister, was arrested in Belgium. Protais Zigiranyazo was also arrested in Belgium on 26 July 2001.

25. These arrests were warmly welcome by victims and involved almost two thirds of the Interim Government (with Prime Minister Jean Kambanda), several high ranking officers and people who actively used the media to incite the population to carry out the killings. Securing convictions 26. Without the participation of victims and survivors of the genocide to the International justice process, the OTP would not secure convictions. It is able to do so thanks to the involvement and the commitment of the NGOs, the witnesses of Rwandan origin, as well as the survivors who where here and witnessed what happened. 27. The OTP has been successful in securing the conviction of the following accused: JeanPaul Akayesu, bourgmestre of Taba commune, Jean Kambanda, Prime Minister of the Interim Government in rwanda, Omar Serushago, a local Interahamwe militia leader, Clment Kayishema, prfet of Kibuye, Obed Ruzindana, a Kibuye businessman, Georges Rutaganda, second vice-president of the Interahamwe militia at the national level, Alfred Musema, a tea factory manager, and Georges Ruggiu, RTLM journalist. The Prosecutor v. Jean Paul Akayesu 28. On 2 September 1998, Trial Chamber I of the International Criminal Tribunal for Rwanda, composed of Judges Laity Kama, presiding, Lennart Aspegren and Navanethem Pillay, found Jean Paul Akayesu guilty of 9 of the 15 counts proffered against him, including genocide, direct and public incitement to commit genocide and crimes against humanity (extermination, murder, torture, rape and other inhumane acts). The Akayesu Judgement included the first conviction for genocide ever delivered by an International Court. For the first time in history, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide was implemented by an international court.

29.

The Trial Chamber held that rape, which it defined as a physical invasion of a sexual nature committed on a person under circumstances which are coercive, and sexual assault constitute acts of genocide insofar as they were committed with the intent to destroy, in whole or in part, a targeted group, as such. It found that sexual assault formed an integral part of the process of destroying the Tutsi ethnic group and that the rape was systematic and had been perpetrated against Tutsi women only, manifesting the specific intent required for those acts to constitute genocide. On 2 October 1998, Jean-Paul Akayesu was sentenced to life imprisonment for each of the nine counts13. The Prosecutor v. Jean Kambanda

30. On 1 May 1998, Jean Kambanda, former Prime Minister of the Interim Government, pleaded guilty to all six counts in the indictment against him pertaining to the crime of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, complicity in genocide and crimes against humanity. The OTP played a crucial role in this case by approaching the suspect after his arrest in Nairobi in July 1997 and convincing him to cooperate with the Tribunal. Jean Kambanda confirmed to Trial Chamber I composed of Judges Laity Kama, presiding, Lennart Aspegren and Navanethem Pillay, that he had entered into an agreement with the Prosecutor, signed by his Counsel and himself, in which he admitted having committed all the crimes with which he was charged.
31.

The Trial Chamber verified the validity of his guilty plea, in order to make sure that it was an informed plea made freely and voluntarily, without any pressure, threats or promises, and that he fully understood the nature of the charges against him, as well as consequences of his guilty plea; and that his guilty plea was unequivocal. The Trial Chamber then declared Jean Kambanda guilty of all the counts in his indictment. The Prosecutor confirmed that the accused had cooperated with regards to the investigations to a significant extent and had provided useful information. He added that owing to the gravity of the crimes committed and the position of authority held by Jean Kambanda as Head of Government, he deserved a sentence of life imprisonment. The Chamber found that the aggravating circumstances surrounding the crimes outweighed the mitigating circumstances. It therefore sentenced Jean Kambanda to life imprisonment14. This was the first time in the world that a Prime Minister, head of government, was convicted of genocide. This sentence marked the triumph of accountability on a secular culture of impunity. The feedback as regards Jean Kambandas guilty plea was very positive and had got a tremendous effect on the community of victims and genocide survivors. This was a significant step towards acknowledging that genocide occurred in Rwanda in 1994. It was the first time that the genocide was acknowledged on such a solemn way by a head of government. The pain and sorrow of the victims were also recognized in this process even though Kambanda did not specifically apologize for his crimes before the Court. After this even the network of revisionists and negationists could no longer argue. The truth was re-established and it was clear for everybody that genocide happened in Rwanda in 1994.

32.

The Prosecutor v. Omar Serushago 33. On 14 December 1998, Omar Serushago, former leader of the Interahamwe militia in Gisenyi prefecture, pleaded guilty before Trial Chamber I, composed of Judges Laity Kama, presiding, Lennart Aspegren and Navanethem Pillay. Serushago pleaded guilty to four of the five counts with which he was charged and pleaded not guilty to count five. He acknowledged to the Trial Chamber that an agreement had been signed by his Counsel and himself, in which he admitted to having committed the crimes for which he was charged in the indictment and to which he pleaded guilty. After verifying the validity of his plea, the trial Chamber found Omar guilty of the crime of genocide and of crimes against humanity (murder, extermination and torture). The Trial Chamber sentenced Omar Serushago to a single term of 15 years imprisonment on 5 February 1999, taking into consideration several mitigating circumstances, notably his substantial cooperation with the Prosecutor even before his surrender to the Ivorian authorities. His cooperation with the OTP was crucial in the tracking and arrest of several high ranking suspects and accused persons in Kenya in 1997 during the NAKI operation. More importantly the Trial Chamber noted that Omar Serushago had openly and publicly expressed remorse and sought forgiveness from the victims of his crimes and the people of Rwanda as a whole, and that he had made an appeal for national reconciliation in Rwanda15. The Prosecutor v. Clment Kayishema and Obed Ruzindana
35.

34.

The joint trial against Clment Kayishema and Obed Ruzindana was held before Trial Chamber II composed of Judge William H. Sekule, presiding, Judge Yakov Ostrovsky and Judge Tafazzal Hossain Khan. Clment Kayishema and Obed Ruzindana were both accused of genocide, crime against humanity (murder, extermination and other inhumane acts), serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II thereto. The judgement and sentence were rendered on 21 May 1999. Both Clment Kayishema and Obed Ruzindana were found guilty of genocide, and not guilty of crimes against humanity. Following their conviction for genocide, Clment Kayishema was sentenced to life imprisonment and Obed Ruzindana to a term of 25 years imprisonment16. The Prosecutor v. Georges Rutaganda

36. The Trial of Georges Rutaganda, a former businessman and the second vice-president of the Interahamwe militia, commenced before Trial Chamber I on 18 March 1997 but was subject to periodic interruptions because of the ill-health of the accused. The Prosecutor rested its case on 29 May 1998. On 6 December 1999, Trial Chamber I rendered its judgement finding Georges Rutaganda guilty of genocide, crime against humanity (murder and extermination) and sentencing him to life imprisonment.

The Prosecutor v. Alfred Musema

37.

The trial of Alfred Musema, a former tea factory manager, commenced before Trial Chamber I on 25 January 1999. The Prosecutors direct case consisted of testimony by 15 protected witnesses, two investigators and one expert witness. The Prosecutor closed its case on 7 may 1999. The defense case opened on 10 May 1999 and consisted of testimony by accused and five other witnesses. The defense closed its case on 23 June 1999. Closing arguments were heard on 25 and 28 June 1999. The Trial Chamber I judgement and sentence was handed down on 27 January 2000. Alfred Musema was convicted of genocide, crimes against humanity (rape and extermination) and sentenced to life imprisonment17. The Prosecutor v. Georges Ruggiu

38. The accused, a Belgian national, a journalist in Rwanda during the events of 1994, was arrested on 23 July 1997 in Mombasa, Kenya. The accused conferred with his counsel and, following extensive discussion between defense and prosecution counsel and a lengthy series of interviews of the accused by OTP investigators, Georges Ruggiu appeared before Trial Chamber I on 15 May 2000 and withdrew his early plea of not guilty, and entered a plea of guilty. He was charged of direct and public incitement to commit genocide and crimes against humanity. On 1 June 2000, Trial Chamber I accepted the plea of guilty and sentenced Georges Ruggiu to 12 years imprisonment. The Ongoing Trials 39. The Prosecutor is currently conducting many trials involving at least 17 accused divided in several categories such as Media, Butare, Cyangugu, Government, military etc. These trials are considered to be the most important series of trials before the Tribunal. They will involve key figures like Colonel Bagosora, alleged mastermind of the genocide, General Gratien Kabiligi and several Ministers as well as prominent politicians. The Prosecutor remains eager to examine new ways of further narrowing down the contested issues at trial and of speeding up the actual trial process. Conclusion
40.

The work of the ad hoc Tribunals in general and the OTP in particular marked a decisive break with the lamentable record of inaction noticed from the darkest pages of human history. Through their jurisprudence the ad hoc Tribunals has shown that a genuine international justice system has finally emerged and that a new culture of accountability is replacing the secular culture of impunity. If the people of the world now demand respect for the basic values of humanity and the rule of law in the resolution of armed conflicts, it is due in no small part to the work of the two Tribunals18. The achievements of the ad hoc Tribunals have undoubtedly greatly enhanced the process of structuring the growing global momentum towards international justice. They have also helped to inspire member states of the United Nations as regards the creation of a permanent International Criminal Court. This

instrument is expected to play a decisive role in preventing the transmission of genocide from generation to generation by deterring potential criminals and the repetition of these crimes. NOTES

10

Genocide (article 2), Crimes against Humanity (article 3), Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (article 4).
2

adopted by the United Nations General Assembly in Resolution 40/34 of 29 November 1985(A/RES/40/34) Article 15(2) of the Statute Resolution 955 (1994) The OTP is aware that some people may be trying to use it capability for their own benefit. OTP, Report of luncheon meeting between Mme Carla Del Ponte and Rwandan NGOs held on 11th February 2000.

A/56/351 S/2001/863 General Assembly/Security Council, United Nations, Sixth annual report of the International Criminal Tribunal for Rwanda for the period 1 July 2000 to 30 June 2001. P. 16
8

The Prosecutor secured a grant from the Swiss Government of US$ 100,000.00 to equip the Supreme Court in Kigali. OTP, Report of luncheon meeting between Mme Carla Del Ponte and Rwandan NGOs held on 11th February 2000 P. 9

10

A/56/351 S/2001/863 General Assembly/Security Council, United Nations, Sixth annual report of the International Criminal Tribunal for Rwanda for the period 1 July 2000 to 30 June 2001. P. 16
11

See rule 106 of the Rules of Procedure and evidence of ICTR

12

A/56/351 S/2001/863 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. 14
13

On 1 June 2001, the appeals Chamber unanimously rejected each of the grounds of appeal raised by Jean-Paul Akayesu and confirmed the verdict and sentence handed down by the Trial Chamber.
14

On 19 October 2000, the Appeals Chamber rendered its judgement in respect of the appeal file by Jean Kambanda against the conviction and sentence handed down by the Trial Chamber on 4 September 1998. The Appeals Chamber unanimously dismissed the eight grounds of appeal raised by the appellant and affirmed the conviction and sentence rendered by the Trial Chamber.
15 16

Serushago appealed his sentence. In a decision rendered on 6 April 2000, the Appeals Chamber confirmed the sentence. On 1 June 2001, at a hearing in Arusha, the Appeals Chamber rendered its judgement, confirming the guilt of Clment Kayishema on all the counts for which he had been convicted by the Trial chamber, as well as the sentence of life imprisonment. The Appeal Chamber also confirmed the guilt of Obed Ruzindana, as well as the sentence of 25 years imprisonment.
17

On 16 November 2001 the Appeals Chamber confirmed the sentence of the Trial Chamber but Alfred Musema saw his conviction for rape quashed by the Appeals Chamber.
18

See the text of an address made in New York on 1 October 2000 by Secretary-General Kofi Annan to the Harvard Law School Advisory Board Dinner