Ensuring ICTR Prosecutions for RPF War Crimes

June 1, 2009

Mr. Ban Ki-moon

Secretary-General

United Nations

New York, NY 10017

President Barack Obama
The White House
1600 Pennsylvania Avenue NW
Washington , DC 20500

Prime Minister Gordon Brown

10 Downing Street 
London
SW1A 2AA

Re: Ensuring ICTR Prosecutions for RPF War Crimes

Dear Secretary General, President, and Prime Minister,

We the undersigned scholars and human rights defenders are writing to express our grave concern at the ongoing failure of Prosecutor Hassan Jallow to fulfil the mandate of the International Criminal Tribunal for Rwanda (ICTR) by bringing indictments against those soldiers of the Rwandan Patriotic Front (RPF) who committed crimes against humanity and war crimes in Rwanda in 1994.

While we commend the ICTR for vigorously prosecuting numerous perpetrators of the 1994 genocide, we are deeply concerned that the failure to indict a single RPF soldier for killing civilians causes the Tribunal to be dismissed as “victor’s justice,” sets a dangerous precedent for future international prosecutions, and undermines efforts at achieving peace, security, and reconciliation in Rwanda and the Great Lakes region as a whole. 

We certainly recognize that the RPF’s crimes against humanity and war crimes are not comparable to the genocide, either in scope or intent. Yet, that is no argument for granting impunity for those crimes. As Alison Des Forges, the historian and human rights defender, eloquently wrote before her untimely death earlier this year:

To insist on the right to justice for all victims, as did the [1994] UN Commission of Experts, is not to deny the genocide, nor does such an insistence equate war crimes with genocide; it simply asserts that all victims, regardless of their affiliation, regardless of the nature of the crime committed against them, and regardless of the affiliation of the perpetrator, must have equal opportunity to seek redress for the wrongs done them.

Indeed, today’s international war crimes tribunals, unlike their predecessors at Nuremberg and Tokyo , are founded on the principle of even-handed justice for all victims of serious violations of international humanitarian law.

The UN has repeatedly insisted on impartial justice for all international crimes committed in Rwanda in 1994. According to experts working for the UN High Commissioner for Refugees, RPF soldiers killed an estimated 25,000 to 45,000 civilians in 1994. A UN Commission of Experts, set up by the UN Security Council in 1994, “strongly recommend[ed]” prosecuting the perpetrators of those crimes. Following that recommendation, the Security Council established the ICTR with a clear mandate to prosecute not only the génocidaires, but also those responsible for “other serious violations of international humanitarian law” in order to achieve both justice and “national reconciliation.” The Security Council reaffirmed this commitment to impartial justice with Resolutions in 2003 and 2004 that called “on all States, especially Rwanda . . . to intensify cooperation with and render all necessary assistance to the ICTR, including on investigations of the Rwandan Patriotic Army . . . .”

Prosecutor Jallow’s evident reluctance to prosecute RPF crimes is clearly the result of intimidation and obstructionism by the RPF, which now rules Rwanda . Several years ago, after the Prosecutor’s predecessor announced a timetable for issuing RPF indictments, the Rwandan government brought the ICTR to a grinding halt by preventing prosecution witnesses from travelling to the Tribunal to testify in genocide trials. That action blatantly violated Rwanda ’s legal obligation to cooperate with the ICTR, directly defied the Security Council, and strongly suggested that the RPF-led government puts impunity for RPF crimes ahead of justice for the genocide.

By capitulating to this continuing threat of non-cooperation, Prosecutor Jallow has severely compromised his prosecutorial independence and the Tribunal’s integrity. Indeed, the ICTR’s one-sided justice stands in sharp contrast to the impartial justice achieved by the International Criminal Tribunal for the Former Yugoslavia and the Special Court for Sierra Leone , which have resolutely prosecuted all sides of those conflicts.

Last year, Prosecutor Jallow ceded the Tribunal’s primacy over RPF crimes by striking a deal with the RPF-led government whereby they would try four RPF officers for the notorious June 5, 1994 massacre of the Catholic Archbishop of Kigali , three bishops, nine clergy, and two other civilians who had been taken into the RPF’s supposedly protective custody. Flawed proceedings resulted in five-year prison sentences for two lower-ranking officers (who confessed to the killings) and acquittals for the two commanding officers.

This domestic case was a completely inappropriate substitute for ICTR prosecutions. For the past 15 years, the RPF-led government has shown that it is neither willing nor able to deliver justice for such politically sensitive crimes. First, the RPF never prosecuted any of its soldiers for war crimes in 1994 until this 2008 case. Second, the two acquittals and two light sentences handed down in this case do not reflect the gravity of the crimes committed. Third, in the past year, several ICTR trial chambers, the ICTR appeals chamber, and England ’s High Court of Justice have ruled that Rwanda cannot even provide fair trials in high-profile genocide cases. The English High Court, in particular, expressed serious concerns about the Rwandan judiciary’s independence and impartiality. 

Prosecutor Jallow promised to assess the Rwandan proceedings and reassert jurisdiction over the case if they did not meet international standards. Although the appeal process concluded in late February, Prosecutor Jallow has remained silent on the integrity of Rwanda ’s RPF trial. He should take back jurisdiction over that case.  

In conclusion, we call on you to ensure that the ICTR prosecutes RPF crimes. This issue should be raised when Prosecutor Jallow addresses the United Nations Security Council about his completion strategy on June 4, 2009. Under the current strategy, the ICTR is supposed to complete all trials in 2009 and all appeals in 2011. Unless the Prosecutor acts swiftly, the ICTR will squander not only its last chance to provide accountability for those serious crimes, but also its legitimacy.

 cc:

Patricia O’Brien, Under-Secretary- General, The Legal Counsel, Office of Legal Affairs      

Judge Charles Michael Dennis Byron, President, International Criminal Tribunal for Rwanda

Prosecutor Hassan Jallow, Office of the Prosecutor, International Criminal Tribunal for Rwanda

Hillary Clinton, US Secretary of State

Johnnie Carson, Assistant Secretary of State for Africa

HE Dr. Susan Rice, US Ambassador to the United Nations

HE Clint Williamson , US Ambassador-at- Large for War Crimes Issues

Michelle Gavin, Senior Director for African Affairs at the National Security Council

James B. Donovan, Deputy Legal Adviser, United States Mission to the United Nations

David Miliband, UK Foreign Secretary

Lord Malloch-Brown, Minister with responsibility for Africa in the Foreign Office

Douglas Alexander, Secretary of State for International Development

HE Sir John Sawers, UK Permanent Representative to the United Nations

Cathy Adams, Legal Counsellor, United Kingdom Mission to the United Nations

Signatories

Professor Erin Baines, University of British Columbia , Vancouver , Canada

Elizabeth Barad

Larissa Begley, University of Sussex , UK

Professor David Black, Dalhousie University , Halifax , Canada

Professor Stephen Brown, University of Ottawa

Professor Anuradha Chakravarty, University of South Carolina

Professor Christina Clark-Kazak, York University , Toronto , Canada

Professor Roger Des Forges, University at Buffalo

Professor Nigel Eltringham, University of Sussex

Conor Foley, International housing, land and property rights expert

Professor Paul Gready, Centre for Applied Human Rights, University of York

Professor Sarah Freedman, University of California at Berkeley

Dr. Ann Griffiths, Dalhousie University , Halifax , Canada

Aloys Habimana, University of Wisconsin-Madison

Professor Rhoda Howard-Hassman, FRSC, Canada Research Chair in International Human Rights, Wilfred Laurier University , Waterloo , Canada

Chris Huggins, Specialist, Conflicts over Land and Natural Resources Rights

Catharine Jenkins, Chair, Centre for Law & Conflict, SOAS, London

Professor Emeritus René Lemarchand, University of Florida

Professor Elizabeth Levy Paluck, Princeton University

Professor Timothy Longman, Director, African Studies Center , Boston University

Dr. J. Paul Martin, Director, Human Rights Studies, Barnard College , Columbia University  

Constance Morrill, Human rights advocate

Professor Rosemary Nagy, Nipissing University , Thunder Bay , Canada

Professor Catharine Newbury, Smith College

Professor David Newbury, Smith College

Dr. Scott Newton, School of Law , SOAS

Professor Victor Peskin, School of Politics and Global Studies, Arizona State University

Tiamoyo Peterson, M.A., University of California , Irvine , USA

Professor Vern Neufeld Redekop, Saint Paul University , Ottawa , Canada

Dr. Luc Reydams, University of Notre Dame

Professor Filip Reyntjens, University of Antwerp , Belgium .

Samantha A. Smith, University of California , Irvine , USA

Professor Chandra Lekha Sriram, Director, Centre on Human Rights in Conflict, University of East London

Karen Stauss, Former Human Rights Watch researcher for the Democratic Republic of Congo

Professor Scott Straus, University of Wisconsin-Madison

Tony Tate, Former Human Rights Watch researcher for Burundi

Carina Tertsakian, Former Amnesty International researcher on Rwanda

Dr. Susan Thomson, University of Ottawa , Canada

Alana Tiemessen, PhD Candidate, University of British Columbia , Vancouver , Canada

Professor Kathryn Trevenen, Institute of Women's Studies , University of Ottawa , Canada

Noel Twagiramungu, Tufts University

Professor Jan Vansina, University of Wisconsin-Madison

Michele D. Wagner, former professor, University of Minnesota

Lars Waldorf, Director, Centre for International Human Rights, University of London

Peter Webster

Professor Harvey M. Weinstein, University of California at Berkeley

Professor Richard A. Wilson, Director, Human Rights Institute, University of Connecticut

Eugenia Zorbas, Former staff, UNHCR-Rwanda