Rwanda has made a bid to host the five convicted architects of the 1994 Genocide against the Tutsi, who are temporarily held at the ICTR detention facility in Arusha, Tanzania, awaiting a decision on countries where they will serve their sentences.
So far, Mali and Benin have been the preferred destinations of the ICTR convicts; however, the UN tribunal’s soft spot for Bamako has raised concerns over the recent military coup and the Tuareg rebellion that has split the West African nation into two.
As it is, there is concern the deteriorating security situation in Mali might provide an opportunity for the convicts to escape, even as ICTR officials insist the Koulikoro prison, situated just outside Bamako, is secure.
The dramatic events in Mali, where the Tribunal transferred 15 Genocide convicts, raises afresh questions about the reasons about ICTR’s controversial orders to sideline Rwanda in determining where the convicts will serve their prison sentences.
Among the convicts awaiting transfer is Col. Theoneste Bagosora, the former director of Cabinet in the ministry of Defence, who was jailed for 35 years last December.
The powers to decide where the convicts will serve their sentences rests entirely with the Tribunal’s president, but the chosen country must have an agreement with the UN to that effect.
Yet there are no known reasons why the Tribunal has snubbed Rwanda, which is one of the eight countries that have signed agreements with the UN on the enforcement of sentences by the UN court.
Others are Sierra Leone, Swaziland, France, Italy and Sweden.
Kigali has expressed its readiness to receive the convicts every time they are sentenced without any success.
“We have always expressed our readiness to take in the convicts, but have never known the reasons for the continued reluctance by the court to effect such transfers,” said Martin Ngonga, Rwanda’s prosecutor general, in an exclusive interview with The New Times. “Unfortunately, these are decisions in which there are no motivated reasons upon which people can base to lodge a legal challenge.”
Sole authority in charge
The Spokesperson and Senior Legal Adviser at the ICTR, Roland Amoussouga, told The New Times that the president of the court is the “sole authority in charge of designating the state in which enforcement of sentences shall be carried out.”
But in doing so, he added, the court president considers several factors, including the views of the defence, prosecution, the Government of Rwanda, the court registrar, the suspect and their family, and consults the trial chamber’s presiding judge. “He takes into account many elements and also conducts any inquiry as he chooses.”
Asked why Rwanda’s plea to host the convicts has been overlooked; Amoussouga said: “It is strictly a judicial decision and I cannot find more explanation about it.”
While no convict has been transferred to Rwanda yet, the Tribunal has, ironically, handed over the case files of three suspects to Kigali; two of the suspects are still fugitives, while the transfer of the third suspect is still stuck at the court. Ngoga maintains the same discretion should be made in the enforcement of the court’s sentences as well.
“I hope the same positive trend we have seen lately with regard to the transfer of cases (to Kigali) will also be reflected in the future decisions concerning countries to enforce sentences for ICTR convicts,” he said.
Indeed, Amoussouga acknowledges that Rwanda meets the conditions set to host the convicts. “Technically Rwanda is qualified but that is not the only factor determinative of the choice of the place of service of sentence.”
However, he attempted to downplay the matter, pointing out that eight Sierra Leonean war crimes convicts were serving their sentences in Rwanda, and not in their native country; so could the Genocide convicts be sent to other countries. “These are international convicts; they did not commit crimes against Rwandans alone but against the international community.”
Rwandan officials, however, disagree using a provision in the ICTR statute, which designates the home country as the primary destination of the convicts.
Ngoga said it was wrong to compare Rwanda’s case with that of Sierra Leone, since they were different. For instance, he said, in the Sierra Leonean case, it was the government which petitioned the UN Tribunal to send the convicts elsewhere.
“In terms of procedure you would say it’s okay, but I think we have a special position in the Tribunal statute, because it says the sentences should primarily be enforced in Rwanda; meaning that the choice of designating other countries should be the exception other than the rule. It is interesting that for all this time the court has always preferred the exception,” he explained.
The UN Security Council, under Article 26 of the ICTR Statute decided that; ”Imprisonment shall be served in Rwanda or any of the States on a list of States which have indicated to the Security Council their willingness to accept convicted persons, as designated by the International Tribunal for Rwanda.”
Rwanda’s Minister of Justice Tharcisse Karugarama is more forthright about the issue. “Why shouldn’t they (ICTR convicts) serve their sentences in Rwanda in the first place? Why should they be scattered all over the world? Are conditions in Mali better than those in Rwanda?” he posed.
His argument was backed by Maitre Laurent Nkongori, a Kigali-based lawyer and commissioner with the National Human Rights Commission, who said it was “regrettable” that the tribunal appears to attach more importance to the choices of individuals who have been convicted of the “worst crimes against humanity than the position of a country that suffered the consequences of the actions of the same convicts.”
“It’s so unfortunate that until now, the ICTR seems to care more about the concerns of the convicts and their families even as the imprisonment enforcement agreement (signed between Rwanda and the ICTR) imposes specific conditions on Rwanda,” he added.
Ironically, in a March 10, 2008 Op-Ed in Jurist, a US-based Web-based legal news website, Amoussouga himself observed: “It may appear paradoxical that finalising the (imprisonment) Agreement took much longer for Rwanda than the other countries that have signed similar Agreements with the United Nations. More so when one reads Article 26 of the ICTR Statute, it seems to suggest that Rwanda is the primary destination for the execution of sentences of all persons convicted by ICTR.”
In that opinion, the ICTR official suggested that the signing of the agreement marked a “milestone in the cooperation between the ICTR and Rwanda”.
“Rwanda has made significant progress in terms of standard of prisons to accommodate ICTR’s convicts. This agreement appears as the last brick completing the legal framework which designates Rwanda as one of the countries that may be deemed suitable for the enforcement of sentences handed down by ICTR,” said Amoussouga.
The agreement binds Rwanda as to the duration of sentence, the exact prison where it is served, the conditions of imprisonment, and provides for regular inspection by a third party – The Red Cross – which reports its findings to the tribunal’s president, who, reserves the right to terminate the service of the sentence in Rwanda in case of a breach of the agreement.
On Saturday, April 7, Rwandans will commence the weeklong 18th anniversary of the Genocide against the Tutsi, which claimed the lives of more than a million people.