The President of the International Criminal Tribunal for Rwanda (ICTR), Justice Dennis Byron, this month has completed one year since he assumed the highest office of the UN Tribunal, trying key suspects of the 1994 Rwandan genocide. In this exclusive interview with HIRONDELLE AGENCY Justice Byron discusses his views on the ICTR legacy and what he expects to achieve when the tribunal wraps up all first instance trials by end of the year as directed by the UN Security Council, among other issues. The excerpts...

8 min 13Approximate reading time

Q. What do you personally wish to achieve as the President of ICTR before the UN Court shuts down?

A. The objective of my presidency is to achieve the mandate, by completing the trials and facilitating the peace and reconciliation process in Rwanda.
On 15 October 2007, during the presentation of the 12th Annual Report of the ICTR before the United Nations General Assembly in New York, I recalled that in the founding Resolution of the ICTR the Security Council explained that the motive for setting up the Tribunal was to bring peace to the Great Lakes Region and to deter the concept of impunity for mass atrocity.

I stressed that it is significant that for those political purposes, a judicial institution was established. It is my opinion that the Tribunal might be judged as a success or failure by certain political criteria. But there are legal criteria by which it must be judged as a court.

My key objective that I wish to achieve as President of the ICTR before the closure of the Tribunal is to ensure that the credibility and fairness of its trial process is maintained at all times and that essential fair trial rights are not prejudiced so that no reasonable onlooker could regard the process or the end result of our proceedings as unfair.

It is gainsaying that the political impact of the Tribunal's work has already extended beyond the number of persons prosecuted and judgements rendered. Through the trial proceedings and judgements, the Tribunal has already established and continued to establish an essential judicial record of the grave violations of international humanitarian law committed in 1994 in Rwanda.

It has built an impressive and unprecedented body of jurisprudence of both substantive international criminal law and procedure. Its leading decisions and judgements are already providing essential guidance for national and international courts designed to enforce international humanitarian law, such as the Special Court for Sierra Leone or the International Criminal Court. It has influenced and will continue to influence legal and constitutional reforms in Rwanda and the Great Lakes Region.

Finally, let me say that it is, indeed, my desire and profound hope that the ICTR, at the end of its mandate, leaves behind a vivid legacy which will be made of fundamental and lasting contributions to true justice to the peoples of Rwanda and the Great Lakes Region. As we all know, justice is an essential element of peace and reconciliation. There will be no lasting peace if there is no credible international justice perspective that unites on a higher level, the peoples of Rwanda and the Great Lakes Region, who have suffered from the heinous crimes committed in 1994.

Let us all be reminded of the words of the late Judge Laity Kama who was the first ICTR president, which he pronounced 12 years ago while presenting the first Annual Report of the Tribunal to the United Nations General Assembly are still real and true today and I quote: ‘'if justice is not done, there may be no end to hatred''.

Q. Do you think the UN Court will be able to beat December, 2008 deadline of completing all first instance trials?

A. The Tribunal has substantially complied with the completion strategy. However the facts are already that some cases will spill over 2009. In the 2008-2009, there have been provisions for Karemera et al. and Nyiramasuhuko et al. trials, and for some referral cases. Now it appears from the status of cases that, even though the evidence phase will be closed in Bizimungu et al., and Ndindiliyimana et al., the Judgements will be delivered only in 2009. As for the current referral motions, decisions are expected in 2008.

Q. The announcement of the tribunal's exit strategy has had immediate impact on some of your senior staff members; some of whom have already left the tribunal for jobs elsewhere. What's being done to retain them?

A.The Tribunal has been working very close with the Office of Human Resources in New York in order to identify non financial incentives aimed at retaining staff. Some of them include the following:

1. Guarantee that staff of the Tribunal is considered as internal candidates when applying for jobs in the UN secretariat. This gives some stability in the minds of the staff and delays the departure time.

2. In order to ensure that qualified staff is brought on board as soon as a vacancy arises, the Tribunal has been allowed to establish a roster which is valid for a year. In addition the duration to advertise posts internally has been reduced to 7 days. As a matter of fact many staff rules and regulations have been relaxed in order to ensure that work of the Tribunal is continued without much delay.

3. Based on a recent retreat for managers in the Tribunal, staff will be given contracts for longer duration with a limitation to the end of the current biennium depending on the need for their respective services. Although this will not stop the departures of staff it is a move aimed at slowing the move out the secretariat.

4. To ensure that staff have relevant skills to effectively deliver quality services. Management has established a career development center. The skills acquired through this centre are aimed at enabling staff to be multifunctional, an attribute that is vital in the completion strategy.

5. Staff departs for many reasons and for those who depart on retirement, we now have the authority to review cases locally and retain those whose services are still required. That having been said the decision to leave or stay is purely personal and even with the best incentives some will still leave. But the management is continuing to provide as much information and guidance as possible with the aim of reducing unnecessary anxiety.

Q.The case of Michel Bagaragaza, former Director General of Rwanda's tea factory, is intriguing. It was first transferred to Norway and later to The Netherlands. Both these countries turned down to try the case on grounds of legal difficulties. But don't you think that the tribunal, and the accused, could have been spared the embarrassment, and the financial loss, had the court thoroughly checked the legal abilities of these countries before actually flying him out?

A.Pursuant to Rule 11bis of the Rules, the referral is decided upon by a trial chamber. It is therefore a judicial procedure, not an investigative process, and the rule provides for requirements to be met.

The attempt to refer the Bagaragaza case failed twice for lack of jurisdiction. In the case of the Kingdom of Norway, the Trial Chamber, relying on the submissions by the Norwegian Prosecutor, has found that Norwegian criminal law does not provide for the crime of genocide which is alleged in the Indictment, and therefore denied the application.

When the Prosecution renewed its request for referral but to The Netherlands, it was supported by a statement of the Dutch prosecutor that The Netherlands has jurisdiction to try the case. However, in a similar case involving another Rwandan, The Hague District Court afterwards stated that the Dutch Courts do not have any jurisdiction in trying such case (Decision of 24.7.2007).

As a consequence, the Dutch Prosecutor has informed the Prosecutor of the Tribunal who then requested the revocation of the referral. On 17 August 2007, the referral order was revoked and the accused transferred back to the Tribunal. Such a situation has an obvious impact on the judicial calendar, the Tribunal having now to make plans for the trial of Michel Bagaragaza.

Q. What were the highlights of your last report to the United Nations Security Council?

A. As the President of the ICTR, I have presented the latest completion strategy report dated 20 November 2007 to the United Nations Security Council. This latest report covers the period from June 2007 until November 2007.

In this reporting period, I was pleased to note that all sections of the ICTR have demonstrated significant progress in their schedule of activities and have greatly contributed to the realization of the mandate of the Tribunal and the goals set by the completion strategy. New trials have started (Nsengimana), while trial proceedings were concluded in Bikindi, Nchamihigo, Renzaho and Zigiranyirazo, and judgements delivered in other cases (Rugambarara).

During the same period, there was some unprecedented delay in the conduct of the Government II case, following the sudden death of the Lead Counsel for Jerome Bicamumpaka during the presentation of his defence case. Despite this unexpected circumstance, the Trial Chamber limited the period of delay to only one month, and trial proceedings were resumed in September 2007. In the Karemera et al. case in January 2007, one of the judges withdrew due to health reasons, resulting in a temporary stop to the proceedings.

With the aim of minimizing the delay resulting from this occurrence, the Chamber took a decision to continue the proceedings with a substitute judge, instead of starting the trial afresh and discarding two years worth of evidence already heard in the case. This decision was later confirmed by the Appeals Chamber. While the substitute judge was appointed to the case on 1 May 2007, he joined the Bench only after certifying his familiarity with the proceedings, which he did on 8 June 2007. The Karemera trial then resumed on 12 June 2007.

There were two significant development during the period covered.
(i) Trial Chamber III has also heard the first case of contempt pending before the Tribunal, relating to Witness GAA.
(ii) The Prosecutor has filed five motions for referral to Rwanda pursuant to Rule 11bis of the Rules of Procedure and Evidence, while the requests for referral to France (Bucyibaruta and Munyeshyaka) were granted. It is anticipated that decisions on the pending referral requests will be rendered shortly. It is useful to note that the Tribunal has secured a transfer agreement with Rwanda following the abolition of the death penalty and the adoption of new laws, in addition to three other European countries.

In sum, of the eight detainees mentioned in the last but one completion strategy report, a guilty plea was recorded for one of them (Rugambarara) and a trial of another detainee (Nsengimana) commenced during the current reporting period. The cases for the six remaining detainees are ready for trial, and some of them will commence in the first half of 2008 depending on Trial Chamber and courtroom capacity.

In terms of the work of the Appeals Chamber during the reporting period, final judgements in the Media and Simba cases were rendered in November 2007. Additionally, the Appeals Chamber also rendered a final judgement in Seromba in March 2008. The next Appeal judgement will be delivered in Muvunyi case.

Q. How different was this report from the previous one?

A. Each one of the completion strategy reports has adequately documented and sequenced the work of the ICTR in achieving its mandate and the goals set by the completion strategy. As such, it is useful to point to a few particular circumstances of the last period that may have special bearing on the completion of the mandate.

Firstly, the last report recognizes specifically the probability that trial proceedings in the Karemera et al case will be completed only in early 2009, due to the circumstances already explained. This is consistent with the provisions made in the 2008-2009 Budget. The report further suggests that there is a likelihood that the drafting of judgements in Butare and Military II may run into 2009.

Secondly, the decisions on referrals to domestic jurisdictions of various accused may have an impact on the current projections. Should the requests for referral be denied and the Tribunal be allocated the responsibility to try these cases, there is a possibility that such additional cases will not be disposed of by December 2008.

Lastly, the recent arrests of accused (Callixte Nzabonimana) and further possible arrests of fugitive accused may also impact the current projections relating to the completion strategy.

Q. The former ICTY Prosecutor, Carla Del Ponte, was of the opinion that Yugoslavia Court should not be closed (by December 2008) until all top leaders are apprehended. Can that statement as well be valid for the ICTR? Or what's your opinion?

A. In his statements before the Security Council since 2003, the Prosecutor (Hassan Jallow) has always insisted for the cooperation of States in arresting the alleged leaders of the crimes committed in Rwanda in 1994.

The President has supported such statements, and consistent references have been made to the fugitives, especially Felicien Kabuga who was also referred to in the Security Council Resolutions 1534, 1503.

Currently, apart from Kabuga, there are 12 other fugitives, and the Prosecution has earmarked four of them for trial at the Tribunal.


© Hirondelle News Agency