PERMANENT MISSION
OF RWANDA TO THE UN

 

Brief Memo on Rwanda’s
Concerns on early releases of convicted Genocide masterminds.

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!


order now

 

1.     
Early
releases of convicted Genocide masterminds.

In view of the
impending re-election process for the president of the International Residual
Mechanism for Criminal Tribunal (MICT), Rwanda would like to express concerns
with the incumbent President of the Court. Specifically, it has been alarming
to note the pattern of early releases and reduced sentences of Genocide
convicts. On several
occasions, the MICT (President of the International Residual Mechanism for
Criminal Tribunals) has set free convicts, many of whom have been convicted for
the most serious crimes including genocide.

Rwanda condemns in the
strongest terms possible this trend of early releases and reduction of
sentences for genocide convicts. These developments have only served to benefit
genocide perpetrators while bringing into question the MICT’s commitment to
fighting impunity and pursuing international justice. Therefore, Rwanda urges
the UN Security Council and other stakeholders to swiftly review those
decisions and take action to save the credibility of the International Residual
Mechanism for Criminal Tribunals. It would be fitting for the Secretary General
to consider these disturbing trends as he reviews the renewal of mandates of
the principles of MICT.

We note that is has
been previously required of judges considering any early release request, in
accordance with Rule 125 of the Rules of Procedure and Evidence (Rules), to
consult with the Sentencing Chamber and the Bureau as well as to notify the
Government of Rwanda of any application request for early release. However,
since 2012, this procedure has worryingly been changed in a manner that favors
the perpetrators; currently, decisions are allowed to be made without
consultation with or notification to the Government of Rwanda or the survivors
of these horrendous crimes. 

For example, in
addition to several other genocide convicts set free, on December 5th 2016 it
was announced that the President of the International Residual Mechanism for
Criminal Tribunals, in total disregard of the Rules of procedures, took the
decision to release two convicted individuals, whose crimes were considered by
the ICTR to be of a high gravity.  

In the case of Rukundo
(Case ICTR-01-70), the Trial Chamber considered it “highly aggravating
that Rukundo abused his moral authority and influence as a well-known priest
within the community and in the Rwandan army in order to promote the abduction
and killing of Tutsi refugees and to sexually assault Tutsi girls. In both
cases, the high gravity of the offences outweighs their early release request.
These decisions to grant early release to these génocidaires are under the sole
purview of President of the Mechanism, who designed the ICTR’s Practice
Direction on the Early Release of Persons convicted by the Court, expressly
indicating  that the decision of the
President, shall be final and not subject to appeal, and this  calls for the attention of the Council.”

The above decisions follow other controversial judgments
taken by the International Criminal Tribunal for Rwanda (ICTR), such as the
release or significant reduction of sentences of the convicted criminals for
their significant role in the planning, supervising and executing of the
genocide against the Tutsi.

By releasing genocide convicts
before they serve their full sentences, the MICT is sending the wrong message
to those who lived through the horror of genocide.  Such actions minimize the gravity of crimes
experienced during the Genocide against Tutsi and make the process of healing
much more difficult for the survivors.

While the Rules of
Procedures of the Residual Mechanisms of International Tribunals are clear on
commutation of sentence and pardon in articles 124, 125 and 126; Practice
Direction on the Procedure for the determination of the application for early
release set out in 2012 does not allow for transparency or recourse. It was set
in such a way that the MICT president is not required to consult with the
Witnesses and Victims Section, or to notify relevant witnesses and victims of
the impending release of the convicted person.  

It also eliminates any
possibility for consultation with the prosecutors, fellow judges as well as the
Government of Rwanda as it was originally set out in the Rules of Procedure and
Evidence, which clearly stipulated that the Government of Rwanda should be
notified of any application and requests for early release.

Furthermore, there are
no measures in place for continued monitoring of Genocide convicts once granted
early release. Such measures are needed to ensure the protection of victims as
well as for Rwanda’s national security purposes. The Residual Mechanism of
International Tribunals does not require these convicted criminals to enter
into any agreement that compels them to certain conditions. For example, when
granted such an early release or reduction in sentence, there is nothing in
place that stops these génocidaires from continuing to promote divisive,
sectarian and genocidal ideology.

The UN Security Council
should consider best practices of other international tribunals/Residual mechanisms
(such as the Special Tribunal/Residual Special Court for Sierra Leone) on
issues of transparency and accountability. Notably, other courts provide room
for consultations with fellow judges, prosecutors, victims and witnesses, as
well as State’s from where convicted criminals are nationals. They have also
put in place monitoring mechanisms and conditions for any one granted an early
release. The process of early release requests for MICT should also require the
President of the court to consult with the Prosecutor and the Witnesses and
Victims Section, the Government of Rwanda and to notify relevant witnesses and
victims of the impending release of the convicted person and of the terms and
conditions set for his or her early Release.

 

1.     
The
MICT process of early releases: 

Under Rule 150 of the
Rules of Procedure and Evidence of the International Residual Mechanism for
Criminal Tribunals (“MICT” or “Mechanism”), the President “in consultation with
any Judges of the sentencing Chamber who are Judges of the Mechanism” decides
whether to grant a pardon or early release to those convicted by the
International Criminal Tribunal for the former Yugoslavia (“ICTY” or
“Tribunal”) and the International Criminal Tribunal for Rwanda (“ICTR”). In
doing so, the President must consider a number of factors, including: (i) the
gravity of the crimes committed; (ii) the treatment of similarly-situated
prisoners; (iii) the prisoner’s demonstration of rehabilitation; and (iv) any
substantial cooperation with the Prosecutor.”

As a matter of practice
– though not explicitly mentioned in either the Rules or Statute of the MICT –
convicts have typically been required to serve a minimum of two-thirds of their
sentences in order to be considered eligible for early release (known as the
“two-thirds threshold”). The rationale for the two-thirds threshold stems from
the Statutes of the ICTY and, later on, the MICT, which require States to
notify the Tribunal or Mechanism once convicts in their custody become eligible
for pardons or commutation of sentence pursuant to local law. Given that
national laws vary widely on this point, the two-thirds threshold was embraced
to ensure equal treatment among all convicts, regardless of the State of
imprisonment.

Unfortunately, also as
a matter of practice, although it appears to happen more as a matter of course,
early release is usually granted once the convict has served two-thirds of
their sentence, and the other factors which the President is required to
consider (i.e. gravity of the crimes, demonstration of rehabilitation, and
cooperation with the Prosecution) rarely seem to make a difference. Notably, in
some cases, early release has been considered and granted prior to the
two-thirds eligibility threshold being met. This has led prominent observers to
conclude that there is a presumption in favor of early release once the
two-thirds threshold is met, notwithstanding other factors, in particular the
very high gravity of the crimes for which the detainees are typically
convicted. Indeed, disturbingly, the severe nature of the crimes rarely seems
to carry any weight, and the results of many years of trial and appeal
proceedings are thus effectively ‘undone’ by the President’s decisions to
release convicts – including those found guilty of genocide.

Assessments:
 On the “rehabilitation”
factor, in particular, have been dubious, as this factor has frequently been
incorrectly equated with good behavior in prison and objectively inadequate
expressions of remorse, and is typically based on reports prepared by State
authorities containing sparse details. In a number of decisions granting early
release, this factor has been questionably applied, including at least one
situation where the supposedly rehabilitated convict made disparaging comments
about the Tribunal soon after being released. This unfortunate situation could
have been avoided had the President benefited from more comprehensive input by
the Prosecution and other relevant actors, such as victims. Furthermore, in
numerous decisions over the years, the consulted sentencing Judges have
strongly opposed the President’s decision to allow early release. Not only have
these Judges been ignored, their opposition is also usually not reflected in
the President’s decisions.

The MICT president recently
recommended an amendment concerning early release by adding a single line to
the relevant rule, thereby allowing the President to impose any conditions on
early release that he or she deems appropriate “in exceptional circumstances”.
This is not a comprehensive amendment, does not satisfactorily address the
above-mentioned concerns, and further widens the President’s powers on early
release.

The MICT Prosecutor, in
contrast, has proposed comprehensive amendments for conditional early release
that would increase the number of factors that the President must take into
account, and allow for early release before the two-thirds threshold only in
exceptional situations where the convict has a limited
life-expectancy. Further, the Prosecutor’s proposal is expected to
satisfy the following objectives: (i) codifying the eligibility standard for
early release, (ii) widening participation and consultation to allow input from
the convict, Prosecutor, the State of imprisonment, the Victims and Witnesses
Section, and the State to which the convict is to be released; and (iii)
expressly allowing for the imposition of appropriate conditions for early
release.

The Prosecutor’s
proposal would bring the MICT sentence review framework in line with current
international standards and best practice (such as at the Special Court for
Sierra Leone) and would mitigate the damage caused by ‘automatic’ release. It
should, therefore, be seriously considered. However, it is disturbing to learn
that the current president of the MICT is not supportive of the Prosecutor’s
proposal.

In
conclusion, the existing practice lacks transparency and
meaningful consultation, is extremely damaging to the affected
regions, undermines the work of the ICTR and MICT, and must be stopped.
The Prosecutor’s proposal would considerably alleviate many of these concerns,
while the President of MICT’s proposal would instead be a step backwards and likely exacerbate the situation and lack of accountability.

 

 

 

 

2.      Individuals set free by ICTR/MICT

•           Michel Bagaragaza: He was the
managing director of OCIR-The, the controlling body for the tea industry in
Rwanda. On 5 November 2009, Bagaragaza was sentenced to eight years jail for
complicity to commit genocide. On October 24, 2011, he was granted early
release after he served “three-quarters” of his sentence. He was the first
convict to be granted early release.

•           Col. Alphonse Nteziryayo: He was
Prefect of Butare prefecture. He was sentenced to 30 years in prison on 24 June
2011, for direct and public incitement to commit genocide. The crimes for which
Nteziryayo has been convicted are of a high gravity. Specifically, the Trial
Chamber found that Nteziryayo incited the population at various meetings to
kill Tutsis.  He was released on March 9,
2016. He had his initial sentence handed by the trial chamber reduced from 30
years to 25 years, on appeal.

•           Dr. Ntakirutimana Gerald: He was the
Director of Mugonero hospital in Karongi. He was found guilty of genocide and
two counts of murder as crimes against humanity on 19 February 2003 and
convicted to 25 years in prison. The court considered all accounts on which he
was convicted, to be of high gravity.  He
was released on April 29, 2014. In these circumstances, the high gravity of Ntakirutimana
offences weighs against his early release.

•           Cpt. Innocent Sagahutu:  He was second-in-command of Reconnaissance
Battalion. He was sentenced to 20 years of imprisonment. He also had his
sentence reduced on appeal, from 20 years to 15 and released on May 13, 2014.

•           Paul Bisengimana: He was Mayor of
Gikoro Commune (Kigali-rural prefecture).  
In determining Bisengimana’s sentence, the Trial Chamber emphasized that
“Bisengimana’s official position as bourgmestre was an overwhelmingly
aggravating circumstance.’  He was
sentenced on 15 April 2006, to 15 years after pleading guilty to the crimes for
which he was accused. During the hearing of the application of the early
release, the President of the court himself pointed out that the high gravity
of Bisengimana’s crimes weighs against his early release; nonetheless he was
released on December 12th, 2012.

•           Omar Serushago: He was the de facto
leader of Interahamwe militia in former Gisenyi prefecture. He was guilty of
four charges after pleading guilty for the crimes he was accused of, and handed
down a single sentence of 15 years imprisonment on 5 February 1999. He was
freed on December 12, 2012, yet, on 12 May 2005, the ICTR had denied him early
release, citing the gravity of the crimes for which he was convicted.

 

•           Col. Tharcise Muvunyi: He was
Commander of the École des sous-officiers (ESO) in Butare.  The Chamber found Muvunyi guilty of
incitement to genocide and was sentenced to 25 years imprisonment, which was
reduced on appeal to 12 years. He was released on March 6, 2012

•           Juvenal Rugambarara: He was Mayor of
Bicumbi Commune during the genocide. Rugambarara received a sentence of 11
years’ imprisonment on 16 November 2007 after pleading guilty. He was released
on February 8, 2012.

•           Francois Xavier Nzuwonemeye:  Commander of the Reconnaissance Battalion of
the former Rwandan Army during the genocide in Rwanda in 1994.    He was sentenced to 20 years of
imprisonment 17 May 2011 and acquitted by the Appeal Chamber on February 11th,
2014.

•           Protais Zigiranyirazo:  He participated in and facilitated the
organization, the arming and training of the Interahamwe and the local Gisenyi
population. He was sentenced to 20 years in prison on 18 December 2008. One
year after the conviction, the Appeal Chamber overturned the 20-year sentence handed
down by the trial court, ruling that “the Trial Judgment misstated the
principles of law governing the distribution of the burden of proof with
regards to alibi and seriously erred in its handling of the evidence” and
immediately released on November 16th, 2009.

•           Theoneste Bagosora: On 18 December
2008, the ICTR trial Chamber sentenced Bagosora to life imprisonment for
genocide, crimes against humanity (murder, extermination, rape, persecution,
and other inhumane acts). The appeal chamber reduced a life sentence to 35 year
and may be eligible for early release taking note of this alarming trend.
Bagosora is responsible for the implementation of the longstanding plan of the
extermination of the Tutsi in Rwanda during 1994.

•           Col. Anatole Nsengiyumva, in charge
of the execution of the genocide in the former Gisenyi prefecture, was
sentenced to life imprisonment on 18 December 2008, on convictions for genocide
and crimes against humanity. This sentence was reduced to 15 years,
subsequently benefitted from an early release on 14 December 2011. 

•           The Trial Chamber III of the ICTR in
June 2012 sentenced Ildephonse Nizeyimana to life imprisonment for genocide,
extermination and murder as crimes against humanity and murder as a serious
violation of Article 3 common to the Geneva Conventions for his undeniable
role; two years later on 29 September 2014, the Appeals Chamber of the ICTR
reduced Nizeyimana’s life sentence to 35 years imprisonment. The judges
confirmed the Trial Chamber convictions for genocide and crimes against
humanity, but cancelled other findings.

•           Nahimana Ferdinand: He was among the
founders of RTLM. He was sentenced to life imprisonment on 8 December 2003,
convicted of genocide, conspiracy to commit genocide, incitement, directly and
publicly, to commit genocide, complicity in genocide and crimes against
humanity. He was released in December 2016, after having his life sentence by
the court of first instance reduced on appeal to 30 years in prison.

•           Father Emmanuel Rukundo: He was the
military chaplain in the Rwandan army. He was convicted on February 27, 2009,
of genocide and murder and extermination as crimes against humanity and
sentenced to 25 years of prison. On 20 October 2010, the Appeals Chamber
decided to reduce Rukundo’s prison sentence from 25 to 23 years imprisonment
allowing him to benefit from an early release in December 2016.