Institute for War and Peace Reporting | Giving Voice, Driving Change

Rwandan Prosecutor Races to Complete Cases

The court in Arusha winds up next year, and the chief prosecutor is short of time.
By Stephanie Nieuwoudt
Justice Hassan Bubacar Jallow, chief prosecutor at the International Criminal Tribunal for Rwanda, ICTR, sits comfortably in his chair, like all men and women who are used to power.

His CV runs to six pages recounting his many achievements, but giving nothing away about the private man.

Jallow, 57, has been in a number of jobs that called for strong leadership - justice minister and Supreme Court judge in Gambia; judge for the appeals chamber of the United Nations Special Court for Sierra Leone; and an elected judge for the International Criminal Tribunal for the former Yugoslavia, ICTY. He also worked on the African Charter on Human and People’s Rights which was adopted in 1981.

When he took the job at the ICTR in September 2003, he walked into an institution facing criticism for the slow progress of its cases, as well as the fact that there were no indictments against members of the Tutsi-dominated Rwandan Patriotic Front, RPF, the ruling party, and President Paul Kagame in relation to their possible crimes committed by them during the 1994 genocide.

Nor did it help that his predecessor - Switzerland's Carla Del Ponte - was clearly unhappy that her contract with the ICTR was not renewed. Prior to September 2003, she was chief prosecutor for both the ICTY and the ICTR. UN Secretary-General Kofi Annan then decided to split the jobs and brought in Jallow for the Rwandan tribunal.

Del Ponte said publicly that the UN had bowed to pressure from Rwanda. Kagame had called for her resignation, and she believed this was because she had started investigations against former RPF members.

The lack of indictments of RPF members remains a source of intense criticism.

Interviewed by IWPR in his sunny office at the tribunal in the northern Tanzanian town of Arusha, with 3,000 metre Mount Meru in the distance, Jallow simply said, "The office of the prosecutor is working on the RPF cases. The work is ongoing."

The ICTR has not so far been able to prosecute RPF members because it depends heavily on the cooperation of the Rwandan authorities to pursue prosecutions.

Observers remain sceptical that anything will be done to bring alleged RPF perpetrators of abuses to justice, since the ICTR has to wrap up all cases by 2008 and its appeal cases by 2010.

Commenting on his experience working under both Del Ponte and Jallow, a prosecutor who wishes to remain anonymous told IWPR, "Del Ponte was used to making public statements. She was always running around. In contrast, Jallow is extremely calm. He is a diplomat, not just in the way he deals with the government of Rwanda, but also with people working under him."

Jallow laughed gently when asked about his management style. "I listen carefully before I take decisions. I may not make many public statements, but I do respond publicly when it is necessary," he said.

For Jallow one of the biggest challenges of the job is to bring witnesses to court to testify against those accused of the 1994 genocide, in which an estimated 800,000 to one million people – Tutsis and moderate Hutus - were systematically killed in just 100 days.

"It is especially difficult to deal with sexual-offence witnesses," he said. "There is a lot of reluctance among these victims to come to court and to testify. We have had to work very hard to make sure these witnesses are available and are brought to court.

"We work in an adversarial process, which can be extremely difficult for the witness. Every witness who has been subjected to a sexual crime knows that her evidence will be tested and challenged. For the duration of the trial, she will have to relive every moment of the ordeal over and over as she is questioned and cross-examined by the defence team as well as the prosecution."

It is difficult to persuade women who have since married to give evidence, and others may not wish to publicise their ordeal or simply want to look to the future rather than the past.

"I wish that we could have been more successful regarding sexual violence offences," he said. "There are difficulties in investigations, preparation and presentation of prosecution cases for all these reasons. The prosecution has consistently charged for rape where it believes there is evidence to support it. Of the 86 accused who have been indicted at the ICTR so far, 37 have been charged with rape and 22 are still on trial. Of the 12 completed rape cases, only four have been convicted on rape counts. The remaining eight were convicted on other counts."

He admitted that the rate of convictions for rape has been low, despite the fact that sexual violence was a widespread strategy used by perpetrators of the genocide. "We intend to improve on this in the remaining cases," he said.

Although the Rwandan government’s cooperation is crucial to the functioning of the ICTR, relations have often been less than cordial. President Kagame has made scathing comments about the ICTR, claiming that the court was established "to do as little as possible", and accusing the West of allowing "French leaders" to get off scot-free even though he says they "directly took part in the genocide by aiding the Hutu militias".

When the indictees Emmanuel Bagambiki, a senior official in the former Hutu government, and André Ntagerura, former minister of transport and communication, were acquitted a few years ago, there were protests against the ICTR decision from Kigali. Ordinary people as well as government officials were unhappy with the acquittals.

Jallow visited Rwanda to explain the judicial process and managed to calm emotions. In an interview with the Rwandan news agency Hirondelle, he said, "We need support and help from Rwanda in terms of providing us with evidence we can present to the court to make sure that we have a successful prosecution."

He says the relationship with Rwanda has improved dramatically. The ICTR is working closely with the country on many levels, including training lawyers and others in the legal fraternity.

"I empathise with the people of Rwanda," he said. "I listen to the government of Rwanda, and then I put forward my own position. I have tried to enforce a positive partnership which is both to the benefit of the Rwandan people and to the rest of the world.

“The ICTR owes it to the victims and survivors to make sure the process where perpetrators of the genocide are brought to justice is seen through and brought to a conclusion."

Jallow travels to Rwanda at least every six weeks to see government officials, and often meets Kagame. He has visited major massacre sites and most of the provinces, and speaks to survivors, potential witnesses and officials about possible co-operation with the ICTR.

"The Rwandans are trying to put in place witness protection programmes for witnesses testifying in national and gacaca courts," he said. "It is a big challenge for the community. Not only does justice have to be administered, but the witnesses later have to be re-integrated into their communities."

The 12,000 or more community-based “gacaca” courts work in the open air, using traditional rather than formal judicial procedure. They are being used as an alternative to courtroom trials because of the sheer number of cases - some predicted that these would have otherwise taken 150 years to conclude. The ICTR is involved in a skills-enhancement programme to help the authorities administer the gacaca courts.

Another challenge for Jallow has been to pare down the list of individuals to be brought before the ICTR.

"We investigated hundreds of people,” he said. “Due to time constraints, the ICTR has to wrap up its trials by 2008 and complete appeal cases by 2010. We had to find other places to prosecute some of the perpetrators. We have handed over 30 files to Rwanda."

A lot of criticism against the ICTR has revolved around the huge amount of time spent on cases. Under Del Ponte, groups of indictees were thrown together and tried jointly. This has led in some cases to trials that have dragged on for years. A case in point is the so-called Butare trial, in which a former minister of family affairs, Pauline Nyiramasuhuko, is on trial with five others. The case has been going on for six years.

Since September 2003, the prosecutor's policy has been to proceed with individual cases. While existing multiple-accused cases have been allowed to continue, no more have been filed in the last three years. The statistics show that on average, the individual cases do not take more than four months to try.

In the trial of Tharcisse Renzaho, a former prefect of Kigali charged on six counts of genocide, complicity in genocide, crimes against humanity, murder and rape, the prosecution recently completed its case in just 12 days.

Negotiating guilty pleas has also been an important part of the completion strategy. Of the cases concluded, seven have been guilty pleas.

After nearly four years as the chief of prosecution at the ICTR, Jallow concluded, "I have learned more about law. I have learned about the intricacies of prosecution and the investigation of genocide crimes, and I have had to deal with many technical and logistical challenges."

He is certain the world needs preventive measures to ensure that genocide never happens again.

"This can be achieved by creating a good-governance environment in each country where core values like human rights and the equality of all people are respected,” he said. “As a community and as individuals, we have to go back to basic values where people are taught to respect each other, to love their neighbours and to be forgiving. If there is respect, other things flow from that.

"Some may think the idea of love and respect for neighbours is naive, but in Rwanda - where these elements were lacking neighbours turned against neighbours, religious leaders against their flocks and family members against each other."

Asked about the charge that international tribunals are "western" judicial systems alien to Africa, Jallow replied, "The tribunals have been established by the Security Council of the United Nations, which represents the international community. Rwanda requested a tribunal to be set up, and the standards and laws of the [Rwandan and Yugoslav] tribunals are universally accepted ones."

Rumour has it that the ICTR will close its doors at the end of 2008, and the appeal cases will move to The Hague. Jallow’s appointment runs until September 2007, but it seems reasonable to anticipate that this will be extended.

He himself was non-committal when asked whether he wanted to stay on until 2008 or even 2010.

"The prosecutor is appointed by the Security Council of the UN. The decision lies with them," he said.

Stephanie Nieuwoudt is a South African freelance journalist based in Nairobi who reports for IWPR Africa on the ICTR trials in Arusha.