Promoting Accountability for International Crimes:: Selected Papers

By Hassan B. Jallow

This book brings together a rich selection of speeches, papers and articles by the author drawn from his long and diverse experience in international criminal justice. It touches on the development and implementation of prosecutorial strategies, the challenges of investigation and prosecution of international crimes and the responses to such challenges and on specific issues including the work and legacy of the UNICTR (Rwanda tribunal), prosecuting sexual and gender based crimes, arrest and tracking of fugitives, giving effect to complementarity, international cooperation to combat international crimes as well as a vision of the future of international criminal justice. An excellent guide and source from one of the world’s leading practitioners of international criminal justice.

• Language: English
• Publisher: AuthorHouse UK
• Release date: Apr 26, 2024
• ISBN: 9798823087025

Hassan B. Jallow

Hassan B Jallow was Attorney General and Minister of Justice (1984 to 1994) and Justice of the Supreme Court (1998 to 2003) of his country The Gambia. He has also served extensively at the international level as a Judge if the Appeals Chamber of the UN Special Court for Sierra Leone,Judge Ad Litem of the UN International Tribunal for Former Yugoslavia(UNICTY) and Member of the Commonwealth Arbitral Tribunal.The author has also served as Chief Prosecutor of the UN International Tribunal for Rwanda (UNICTR)(2003 to 2015) and Chief Prosecutor of the UN Mechanism for International Criminal Tribunals(UNICTY)(2012 to 2016) with the rank of Undersecretary General of the United Nations. He is married with five children. He is the author of several books, including Journey For Justice ,The Law of Evidence,The Law of the African Charter on Human and People's Rights, Prosecuting International Crimes : Recollections and Reflections and The Wird(zikr) of the Tariqat Tidjani He is currently the Chief Justice of The Gambia since 2017.

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© 2024 Hassan B. Jallow. All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

Published by AuthorHouse   04/23/2024

ISBN: 979-8-8230-8701-8 (sc)

ISBN: 979-8-8230-8703-2 (hc)

ISBN: 979-8-8230-8702-5 (e)

Library of Congress Control Number: 2024906314

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CONTENTS

List of Abbreviations

Preface and Introduction

1.Welcome Speech at the Opening of the OTP Completion Strategy Workshop 20th February 2004 – Amboselli, Kenya

2.Communique to OTP Staff, Following the OTP Completion Strategy Workshop 23rd February 2004

3.Statement to U.N. Security Council 29th June 2004 on UNICTR Completion Strategy

4.Trial Readiness Review – Communique by the Prosecutor on 17th August 2004

5.Statement to the UN Security Council 23rd November 2004

6.Prosecutor’s New Year Messages to OTP Staff

7.Keynote Address at OTP Strategic Review Workshop 3-5 March 2006

8.Opening Statement at OTP-ICTR Strategic Review Retreat Ngorongoro, 11th to 13th March 2011

9.Opening Statement at OTP-ICTR/MICT Strategic Review Retreat Lake Manyara Lodge, 14th to 16th November 2012

10.Joint Statement of the Prosecutors of the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone - 2004

11.Address on the Occasion of the 60th Anniversary of the United Nations Arusha, 24th October 2005

12.Fourth Colloquium of International Prosecutors – Phnomm Penh, Cambodia 7 to 8 November 2007 Here and Now: Current Challenges of International Prosecutions

13.Guest Lecture at OTP-ICC

14.Welcome Address at Colloquium of Prosecutors of International Criminal Tribunals Arusha, Tanzania – 25 to 27 November, 2004

15.The Relationship Between International Tribunals and Domestic Courts: A Commentary on the Experience of the International Criminal Tribunal for Rwanda

16.Speeding Up Trials: ICTR Experience Prosecutors’ Colloquium, the Hague, 6-7 October 2006

17.Address on the Occasion of the 61st Anniversary of the United Nations Arusha, 27th October 2006

18.International Women’s Day Commemoration Wednesday 8th March 2006

19.UNICTR-CCM (RWANDA) Conference on Challenging Impunity, Hotel Novotel – Kigali, Rwanda 7th to 10th November 2006

20.Peace and International Justice: Competing Or Complimentary Principles? (2007, Accra, Ghana)

21.Enhancing Prospects for Accountability: the Imperative of Complementarity

22.American Bar Association (ABA) Meeting Brussels, September 2008

23.Address of Welcome 5th Colloquium of Prosecutors of International Criminal Tribunals Kigali, Rwanda -11th to 13th November 2009

24.Kigali Declaration of Fifth Colloquium of Prosecutors of International Criminal Tribunals 13th November 2009

25.Good Governance and International Criminal Justice

26.Statement at the Rome Statute Review Conference – Kampala, Uganda 31 May- 11 June 2010

27.Conference of International Association of Prosecutors (IAP) The Hague: September 2010 Cross Border Issues in Prosecution of International Crimes

28.Comments on the ICC-OTP Draft Prosecutorial Strategy, 2009-2012 Consultative Conference on International Criminal Justice United Nations, New York 9-11 September 2009

29.Challenges of Proper Completion and Winding Up of the Ad Hoc Tribunal – ICTR

30.Statement at the launch of the UNMICT Arusha Branch 2nd July 2012, Arusha, Tanzania

31.Statement at 7th Regional Conference of State Attorneys Birjuni, Croatia – 22-24 May 2013

32.Statement at the Opening of the Hague Branch of the UNMICT – 1st July 2013

33.Statement at the Handing Over of OTP-ICTR Manual on Tracking and Arrest to the International Association of Prosecutors (IAP) 9th September, 2013. Moscow, Russia

34.Towards a Multilateral Treaty for Mutual Legal Assistance for Investigation and Prosecution of International Crimes

35.Opening Statement At International Workshop on the Prosecution of Sexual and Gender-Based Violence Crimes – (Rwanda)

36.Opening Remarks Prosecution of Sexual Violence Workshop

37.The Prosecution of Rape and Other Sexual Violence: Lessons From Prosecutions At the ICTR

38.Opening Statement at OTP Sexual Assault Workshop

39.Opening Address at OTP Capacity Building Seminar for Investigators & Trial Attorneys Gisenyi, Rwanda: 10 to 12 November 2006

40.AFLA Conference on Africa and the ICC – Arusha 28th February – 1st March 2013

41.ICTR Legacy Symposium Closing Statement

42.Overview of Prosecutorial Legacy: University of Johannesburg Conference on ICTR Legacy 31st October to 1st November 2013

43.Seventh Colloquium of Prosecutors Arusha, Tanzania, 4-5 November 2014 Local Prosecution of International Crimes: Challenges and Prospects

44.The International Criminal Tribunal for Rwanda (ICTR): Twenty Years of Combatting Impunity

45.Statement Marking Conclusion of ICTR Trials With Delivery of Judgment in Prosecutor vs Augustin Ngirabatware the Last ICTR Trial 20th December 2012

46.Statement on Occasion of Inauguration of the Arusha Peace Park 30th November 2015

47.Laying of the Cornerstone for the MICT Premises Lakilaki, Arusha 1st July 2015

48.Nuremberg to Rwanda: the Challenge of International Criminal Justice

49.The Contribution of the ICTR to the Global Struggle for Justice and Accountability

50.2017 Samuel Dash Conference on Human Rights – Georgetown University, Washington DC April 3rd 2017 Global Criminal Justice: Accomplishments, Challenges and Future Directions

51.Tanzanian Judicial Workshop on International Humanitarian Law, Arusha Tanzania, 18th August 2015 Challenges in the Prosecution of International Crimes

52.Prosecuting International Crimes in Africa: Lessons from Rwanda and Reflections on the Future CODESRIA Conference On International Justice Reconciliation and Justice in Africa Dakar Senegal July 2014

53.The Effectiveness of International Courts in Combating Crime and Promoting Human Rights

54.The Challenge of the New International Criminal Tribunals

55.International Cooperation to Combat International Crime: Some Reflections

56.Challenges of Investigating and Prosecuting International Crimes

57.Prosecutorial Discretion and International Criminal Justice

58.Rule 11 bis and the Referral of cases to National Jurisdiction: The ICTR Legacy in Rwanda

59.The Investigation and Prosecution of International Crimes: Some Challenges and Responsive Strategies

60.Fighting Impunity and Promoting International Justice: Lessons from the U.N. Tribunal for Rwanda (Siracusa Institute Presentation)

61.Fair Trial in International Criminal Justice - The ICTR Experience (Presentation for UN Audiovisual library)

62.The ICTR’s Elaboration of the Core International Crimes of Genocide, Crimes Against humanity and War Crimes

63.International Criminal Justice: Reflections on the Past and the Future.

64.American Bar Association and World Justice Project Meeting Accra Ghana, 9-10 January 2008 International Criminal Justice and the Rule of Law

65.Convocation Statement at the Southern Utah University on November 9th 2010

66.The Enforcement of International Criminal Law By International Courts and Tribunals

67.Official Closing Ceremony of the International Criminal Tribunal for Rwanda (UNICTR) Samba Hall, ARUSHA 1st December 2015

68.Goodwill Message to the Legacy Conference of the Special Court for Sierra Leone (SCSL), February 2024

LIST OF ABBREVIATIONS

PREFACE AND INTRODUCTION

The process of securing accountability for mass crimes through international criminal justice is one of the most remarkable developments in the international arena in modern times. Until the end of the Second World War in 1945 and the trial of the Nazi and Japanese leaders for war crimes, impunity of leaders was the norm.

Notwithstanding the revolutionary nature of the Nuremberg and Tokyo war crimes trials it took almost another half century before the international community ventured into international arrangements for such trials. The tragedies of the Former Yugoslavia and of Rwanda were to galvanise the world into the establishment of the International Criminal Tribunal for the Former Yugoslavia (UNICTY) and the International Criminal Tribunal for Rwanda (UNICTR) respectively in 1993 and 1995 by the U.N Security Council to prosecute the persons who played a leading role in those mass atrocities.

The ‘System’ has evolved fairly rapidly since the 1990s with the creation of the two ad hoc tribunals through various phases: the period of primacy of international courts as evidenced by the structure and powers of the ad hoc tribunals; the period of partnership with domestic jurisdictions as evidenced by the establishment of hybrid courts such as the Special Court for Sierra Leone (SCSL), the Special Tribunal for Lebanon (STL) the Extraordinary Jurisdiction in the Courts of Cambodia (ECCC), the extraordinary jurisdiction in the courts of Senegal; and finally to the supremacy of the national jurisdictions as epitomised by the principle of complementarity under the Rome Statute of the permanent International Criminal Court (ICC).

Under the principle of complementarity which governs the Rome Statute the process of accountability for international crimes remains the primary responsibility of the domestic jurisdiction. The international jurisdiction, such as the ICC, remains a last resort. International criminal justice mechanisms will intervene only where national systems are unable or unwilling to bring to account the perpetrators of international crimes.

International criminal justice has no shortage of critics however: the cost, the delays and the fact that the major powers remain largely outside of its sphere being apparently content to apply the rules to weaker states. We have of course recently witnessed the unprecedented indictment of Vladimir Putin, President of Russia. Russia’s status as one of the Big Five nuclear veto wielding powers in the U.N. Security Council has not prevented its leader from being the first such to be indicted by the ICC for war crimes allegedly committed in Ukraine. The focus of the ICC Prosecutor in the indictment of African leaders and personalities has also evoked accusations of bias and selectivity by the ICC and threats of withdrawal from the Rome Statute system by African states. Critics of the ICC have also lamented what they regard as a very lethargic response in contrast to other situations, of its Prosecutor to the violence in the Middle East which has taken a very heavy toll on women and children over the years. The approach of the ICC to the situations in Ukraine on one hand and the Middle East on the other are regarded by many as being influenced by political considerations.

Overall however despite challenges and the need for improvement of its machinery and methods, the balance sheet for international criminal justice today is on the positive side. Between them the ad hoc and special tribunals have together brought to account hundreds of leaders – Heads of State, Heads of Government, political and military leaders and others who in the past would have evaded justice due to their position, power and influence. In the course of their operations these tribunals have significantly developed the jurisprudence of international criminal law – substantive, procedural, evidentiary – as well as the practical aspects of managing the various critical components of international criminal justice. The transition from primacy to complementarity has empowered some national jurisdictions to effectively take responsibility for ensuring accountability for international crimes either as a primary jurisdiction or on the basis of universal jurisdiction. The creation of a permanent mechanism in the form of a court such as the ICC is a mark of confidence by the international community in the process of international criminal justice. It has, despite numerous challenges, been good for justice and for peace.

I have had the good fortune to be associated with international criminal justice for several decades as a practitioner. Whilst the field of human rights promotion and protection is one I have worked in since my enrolment as a lawyer in 1977 my first foray into international criminal justice came with my appointment in 1999 as member of the Five Man Panel set up by the UN Secretary General Kofi Annan to carry out a judicial evaluation of the functioning of the UNICTY and the UNICTR as a result of growing concerns about the efficiency of those two judicial institutions. Under the leadership of Chairman Jerome Ackerman and with Patricia Ruedas (Spain) Judge Reddy (India), Pedro David (Argentina) and myself our team made recommendations for some significant reforms to the two tribunals which contributed to the enhancement of their performance.

I was elected by the U.N General Assembly and the U.N Security Council as a Judge Ad Litem of the UNICTY although I was unable to serve due to my subsequent appointment by the U.N Secretary General as a judge of the first panel of the Appeals Chamber of the U.N Special Court for Sierra Leone. Under the Presidency of Judge Robertson (UK/Australia) and with Ayoola (Nigeria), Gelaga king (Sierra Leone) and Renata Winter (Austria) we had just completed adopting, together with the trial Judges, the Rules of Procedure and Evidence of the Special Court and got the court to start operations when I was elected in September 2003 by the U.N Security Council as the Chief Prosecutor of the UNICTR (Rwanda Tribunal) with the rank of Under Secretary General on a four year term. My mandate was subsequently extended several times on the recommendation of U.N Secretary General Kofi Annan until 2015 when the UNICTR finally closed down. From 2012 to 2016 I was concurrently with my position at the ICTR, the first Chief Prosecutor of the U.N Mechanism for International Criminal Tribunals (UNMICT) on election by the U.N Security Council following the recommendation of the new U.N Secretary General Ban Kin Moon. My mandate ended in 2016. I returned to my home country, The Gambia, and have up to now been serving as its Chief Justice.

My service with the UN gave me a unique opportunity. As the first full time Chief Prosecutor of the Rwanda Tribunal (UNICTR) with a mandate to implement its completion strategy, I supervised and oversaw the preparation and trial of the bulk of the cases within that court and to be in charge of investigations and prosecutions at the peak of the tribunal’s activities. Secondly under the tribunal Completion Strategy adopted by the U.N Security Council, I also presided with my colleagues of the other two organs i.e. Chambers and Registry over the closure of the UNICTR, the first such closure of an international court. That process turned out to be complicated and full of challenges, on which I have written elsewhere.

Thirdly my position as Chief Prosecutor of the UNICTR and subsequently of the UNMICT, gave me the opportunity not only to preside over the challenge of closure of an international tribunal but also to be actively engaged simultaneously in the establishment of a new one – the UNMICT – and to be one of its three Principals in the critical first four years of its existence I look back over these years as some of the most fulfilling in my career – bringing justice to a people who have been grievously wronged and whose rights have been egregiously violated.

Notwithstanding the end of my fulltime tenure and mandate with the U.N system I have continued to maintain an active interest in global justice and accountability and to be involved, subject to my duties as Chief Justice, in related activities. In 2019 I co-founded the Africa Group for Justice and Accountability (AGJA) as an independent group of senior African experts on international criminal law and human rights. Our mission is to support efforts to strengthen justice and accountability measures in Africa through domestic and regional capacity building, advice and outreach, diplomacy and enhancing cooperation between Africa and regional and international justice mechanisms including the International Criminal Court. I served as AGJA founding Chairman for the first five years of its existence.

I have more recently been involved as a member of the mechanism for the review of the ICC with a view to improving the work of that court. Back in The Gambia I have been involved in the formulation and adoption of policies for the implementation of the accountability component of the recommendations of the Truth Reparations and Reconciliation Commission (TRRC) established by the National Assembly to investigate abuses committed between 1994 and 2016. My commitment to justice and accountability - both at home and abroad – is and remains a lifelong one.

In the course of my service to this commitment I have had the occasion to make several statements, lectures and publish articles on various aspects of international criminal justice and accountability. During my tenure alone for instance as Chief Prosecutor for thirteen years I have had to make a personal appearance every six months at the UN Security Council and submit reports on the progress and challenges of the various tribunals.

What is presented in this publication PROMOTING ACCOUNTABILITY FOR INTERNATIONAL CRIMES: SELECTED PAPERS is drawn from that collection. It excludes for practical reasons of space etc. most of the reports I submitted to the U.N Security Council. This work is a companion to my recent publication PROSECUTING INTERNATIONAL CRIMES: RECOLLECTIONS AND REFLECTIONS (Lulu Publishing 2019). It is also the second part of a trilogy of my collected works, the first of which has been published under the title LAW, JUSTICE AND GOVERNANCE: SELECTED PAPERS (Author House 2023) dealing more generally with the domestic legal system and human rights issues. The final part of the Trilogy will inchaalah be published a few months hence and will focus largely on my tenure as the Chief Justice of the Gambia.

The items in this collection deal with diverse aspects of the administration of international criminal justice, mainly from the prosecutorial view and largely based on the experience of the UNICTR (Rwanda Tribunal) the world’s premier genocide court of justice. All of them however having the common thread running through of the challenges and the responsive strategies to the investigation and prosecution of mass crimes. My regular New Year Messages of the Prosecutor to the staff of the office of the Prosecutor (OTP) from 2004 to 2013 capture the progress as well as setbacks and plans at the UNICTR. The conclusions and communiqués from the OTP Strategic Workshops of 2006 Arusha, 2011 Ngorongoro, 2012 Lake Manyara, and Ngurdoto reflect the confirmation, adjustment of existing or adoption of new strategies in response to the exigencies of the moment to the challenges of proper completion of the tribunals mandate. The adoption of a clear consistent and coherent but flexible indictment policy is essential given the large number of crimes, of perpetrators and of victims on the one hand and on the other the finite lifespan of the court which combined necessitate a selection of targets based on clear objective criteria. The criteria for the selection of our targets for investigation and for prosecution are thus transparently and publicly articulated under the piece on the exercise of prosecutorial discretion. Given that trials in absentia are prohibited on the international plane – with the exception of the Special Tribunal for Lebanon (STL), the tracking, arrest and transfer of indictees to the court is essential to set the trial in motion. The challenges in that regard and the recommended strategies are addressed in the OTP-ICTR manual on the subject I handed over to the International Association of Prosecutors (IAP) at its Moscow meeting of September 2013. Proper management and speeding up of trials remains a constant, continuous preoccupation of the Prosecutor and appropriate measures adapted to that end are also covered in the collection. International cooperation is often the Achilles heel of the international criminal justice process given that it is so heavily dependent on the cooperation of states at all stages. Such cooperation is not always forthcoming although the majority of states do support the process. The challenges in securing cooperation and in overcoming state obstruction or non-cooperation are also examined. The benefits of international collaboration in sharing experiences and good practices instituted by the Colloquium of International Prosecutors first convened by the author in Arusha, Tanzania in 2004 as well as the Joint Declarations of the international Prosecutors on global issues of impunity and accountability are also highlighted. Bringing together regularly between 2004 and 2015 the Prosecutors of the UNICTR, the UNICTY, the ICC, the SCSL, the STL and the ECCC, the Prosecutors Colloquium has provided a very useful forum for consultation, sharing of experiences and closer harmonisation of policies and positions on global justice issues amongst the Chief Prosecutors. Partnering with the national jurisdictions, particularly to assist with the completion strategies is brought to the forefront with the ICTR program of referral of cases under R11 bis to national jurisdictions particularly to Rwanda. The need for concrete measures is emphasised to give effect to the principle of complementarity, the current foundation of international criminal justice. Rape and other forms of sexual and gender based violence have featured prominently in all the conflict situations requiring the intervention of international criminal justice. The record of prosecutorial success in securing accountability for such gender crimes in conflict has not reflected the gravity of these abhorrent crimes. The challenges faced in the prosecution of such crimes and possible good practice in their management are reflected in the statements of the author on the occasion commemorating international women’s day, in the training workshops for staff on the investigation and prosecution of gender crimes and in the OTP Manual of recommended practices for such investigation and prosecution.

The legacy of the ICTR is examined in relation to its development of the jurisprudence on the core crimes within its mandate i.e. genocide, war crimes and crimes against humanity as well as its contribution to the elaboration of fair trial standards in criminal proceedings. Legacy is also examined in broader non-juristic terms in relation to impact on the community, justice for victims, potential deterrence and the creation, identification, compilation and dissemination of good practices for the use of future practitioners. With the closure of the UNICTR and UNICTY – the principal agencies for several decades in combatting impunity and promoting accountability, the establishment of the ICC and the shift to the principle of complementarity there is a projection into the future of the architecture of global justice with emphasis on the potential role of regional courts such as the ECOWAS Court of Justice, the East African Court of Justice etc. in the prosecution of international crimes and a call for more universal participation in the Rome Statute, particularly by the big powers. The foregoing and many other issues of global justice are explored in the collection and the reader is invited to its entire contents.

I am greatly indebted to many persons who have contributed to this publication: my friends and former colleagues at the UNICTR, the UNMICT who have been supportive in the execution of our common mandate; colleagues who have assisted with some of the research and drafting of some of the items in the collection; my secretaries Aji Ndeteh Fatou Ceesay and Fatoumata Jallow who have diligently typed, several times, the draft manuscript from my atrocious handwriting; Kumba Mboge Principal Legal Researcher, Ebrima Jallow and Mamadou Saidou Bah Senior Legal Researchers in the office of the Chief Justice, Banjul who have supervised the compilation of the manuscript and consequently proofread it several times; to my beloved spouse Aja Fatou Jaye Jallow and my children Bubacar, Papa Muhammed, Habib, Aisha, Malick and Maram and my lovely grandchildren Fatou Jnr. and Hassan Jnr. who have provided me with the moral and spiritual support to enable me undertake and conclude the project; as did the blessings of my parents Sheikh Alhaji Bubacar Zaidi Jallow (RA) and Hajja Jahou Jagne (RA). Finally I return thanks to Allah SWT the First and the Last for all that I am and I have and pray to Him for the best in the hereafter for me and family and friends and all believers.

Hassan Bubacar Jallow-CRG

Bansang

The Gambia

12th March 2024

1

Welcome Speech at the Opening of the OTP Completion Strategy Workshop 20th February 2004 – Amboselli, Kenya

My dear colleagues and friends,

It is my pleasure to welcome you all to this workshop. Special words of welcome go to our facilitators, Mme Robin Postel and Mr. Kenneth Fleming.

The Tribunal stands at a crucial phase. As you are all aware the Security Council has decided that current investigations in relation to targets for indictment must conclude by end 2004. Trial and Appeal Support investigations will continue until the trials and appeals are concluded as scheduled by the Security Council respectively for end 2008 and end 2010. The OTP has an important role to play in this phase, as we determine essentially the workload to be undertaken by the Tribunal.

In my first address to the Security Council in October 2003, I undertook to conduct a review of the workload as it existed with a view to determining and identifying more closely the case load which could in our view be undertaken and concluded within the timeframe set by the Council. I did so as I felt at the time, given the experience of the Tribunal in the past decade, that the workload then was not one that could be reasonably expected to be accomplished within this time frame.

Two critical issues need to be addressed in the context of a successful implementation of the Completion Strategy: how much work can we and therefore should we undertake; what measures and strategies do we need to put in place for the conclusion of that load within the given time.

We have addressed the first issue through the review of the workload. You have before you the report of that process which now hopefully clearly defines what is the work the OTP needs to focus on between now and 2008. Let me thank all those members of the OTP who have given of their time and expertise in helping us identify clearly our target. Guided by the consideration that we must focus on those who bear the greatest responsibility for the genocide, determined inter alia, by the extent of their participation and their status in Rwanda at the time, the strength of the case as well as the need for greater geographical spread of indictees – an important factor on the ground in Rwanda – I propose to retain for trial in the ICTR only 17 of the 22 detainees whose trials have not commenced. The remaining five will be the subject of applications for transfer to national jurisdictions for trial. Whilst the number of indicted fugitives for apprehension is still retained at 16, if arrested, only 12 of those would stand trial at the ICTR with the remaining four being transferred to national jurisdictions. The targets for investigation have been reduced from 26 to 16. Some of these will be subject to further review by midyear 2004 to determine whether on the basis of the evidence and the prospects for additional evidence, any further efforts should be spent on them, or the files closed. Of the 40 files originally earmarked for transfer, eight have been dropped altogether but with the addition of the proposed transfers from the first two categories, the global figure for referrals to national jurisdictions now stands at 41. The premise is that the Tribunal will be able to commence and conclude 34 new trials before the end of 2008 (including those currently awaiting trial).

The strategy is not however static. It will be kept under continuous review and monitoring and adjusted in the light of prevailing circumstances.

You have the summary of the report of the OTP Completion Strategy before you. I would urge you to study it closely and keep yourselves abreast of any change to it. I shall endeavour to communicate to you any changes.

Having determined the first issue, the question which remains to be answered is how do we get there? That is why we are gathered at this workshop; to discuss in a frank, transparent and constructive manner what we need to do individually and collectively to accomplish the task of proper completion of these cases. We are fortunate in this respect to have the assistance of two able facilitators to guide us in our deliberations.

It is sad but true that all good things come to an end. I believe we all wish some good things survived and continued. But we must face the fact that unlike the ICC, both the ICTR and its sister, the ICTY are ad hoc tribunals. They were meant to come to an end some day.

Any ending must be dignified and principled. Any winding up of the Tribunals which leaves a perception that justice has been sacrificed in the alter of expediency – political, financial or otherwise – would be a great dissonance to the cause of justice for the peoples of Rwanda but also for the rest of the world, completion must be properly undertaken. In order to achieve that, proper planning must be in place. That is especially so in the area in which we are working, namely:

- the delivery of justice to a brutalized people;

- the development of a legal system which will help provide deterrence to injustice, even atrocity, in other parts of the world, at another time;

- the development of personal skills that are available to humanity to wage the war against injustice and atrocity.

The achievement of those aims require dedication, commitment, and sometimes, even the sacrifice of personal interest, to the greater cause of humankind. We do not work in an abstract context, but in the context of dehumanizing crime, even ultimate crime, against people, many of whom are the most vulnerable in our world; the aged, children and women. So it is that we are here to plan our orderly exit in a proper manner, from this particular function, or section, of the global fight against egregious violations of human rights. But the fight will go on in another place at other times, and we will have the knowledge and conviction that we have played a very significant part in that fight. Indeed, the skills we are developing here will equip us as individuals to take up that fight in other places for the betterment of the lives of others.

It is evident that the ICTR has achieved much in the decade of its existence. But there is more to be done. In fact, there is more to do in half the time than we have had in the past. But we have had notice that things will come to an end. This is a continuation of the critical work we have done to date. But it requires difficult decisions to be made, and our personal commitment to remain unwavering in order for us to complete our mandate.

While the ultimate responsibility is mine as Prosecutor, and in that sense it is my mandate, I cannot however complete my mandate without your support. So much so that it has become also your mandate and your burden; our collective mandate and our collective burden, voluntarily. You have all worked with the single-minded will to assist the completion of our task. But that commitment and single-mindedness is absolutely essential for a while longer – in the interest of proper completion and in the interest of the cause for effective international criminal justice.

Most of all, I want you to keep in mind the underpinning mandate that is ours, and continue with the generous and humanitarian attitudes with which you have all conducted yourselves to date.

We must exercise this mandate in the only legal context that we have: the Statute and the Rules of Evidence and Procedure, and the developing jurisprudence. We can gain assistance in interpreting those documents from the debates and directions of various organs, but we must exercise our duties without fear of, and direction by, any government, body or individual.

So, the decisions that I and you together have made on the first issue, and the planning needed to give effect to those decisions, in order to complete our mandate within the given time, will occupy us for the next three days.

More difficult decisions may have to be taken as we proceed. But I wish to assure you that I will make those decisions in the fullest consultation with you. That consultation process has been ongoing, but today, at this seminar, it assumes a new level.

I have since assuming office been stressing to staff the importance of redoubled individual effort and the strengthening of the team spirit. As we prepare the completion of our work we need to ask ourselves the fundamental question: What do we need to do to best equip ourselves for the task of proper completion? Many others flow from this. Is there room for improving the Organizational Structure of the OTP to enhance greater efficiency in our work? How can we ensure better coordination of the trial teams in order to avoid inconsistent approaches to what is essentially a single case? In what ways can the capacity of the trial teams, particularly those engaged in major trials, be strengthened, optimum use made of the opportunities provided by the ROPE for more expeditious trials? What new strategies of investigation and tracking can enhance our chances of compliance with the Security Council benchmarks and ensure that those fugitives are brought to trial?

It is imperative that you apply your minds and your wills, with me, to produce new and creative solutions to the significant issues facing us all. So we must, as I have said earlier, first renew our focus, unify our purpose, and reinvigorate our commitment. Second, we must devise a plan capable of action, and commit ourselves to the dignified completion of that plan. Third, we must foster teamwork and collaboration amongst the management, investigations, evidence and trial sections, as well as with other organs of the Tribunal.

We have a mandate. We have a timetable. Our timetable has been defined for us. We have defined our workload. Let us plan to accomplish that workload and commit ourselves to that end in such a way that we can bequeath a legacy of justice and reconciliation in Rwanda. Let us face the challenge in a way that would make us all proud to have been part of this historic process. When we look back several years hence, I would like us to say that this workshop was an important step, indeed a milestone, in helping us rise to that challenge.

I thank you for your attention.

2

Communique to OTP Staff, Following the OTP Completion Strategy Workshop 23rd February 2004

Dear colleagues,

The Tribunal stands at a crucial phase. The Security Council has decided that the current investigations in relation to targets for indictment must conclude by the end of 2004. Trial and Appeal Support investigations will continue until the trials and appeals are concluded as scheduled by the Security Council respectively for end 2008 and end 2010.

I have taken up the post of Prosecutor with a commitment to support you my staff in your work, to consult with and listen to you, and to effect change so that we can, together and effectively, achieve our mandate. I am privileged to have a senior management team who share my commitment.

I have a duty to report soon to the Security Council on how we intend to accomplish our mandate. Given the experience of the Tribunal in the past decade, it could not be reasonably expected for us to accomplish the workload we had before us within that time frame. So we undertook to review the workload in consultation with members of OTP with a view to designing our Completion Strategy.

Guided by the consideration that we must focus on those who bear the greatest responsibility for the genocide, determined inter alia, by the extent of their participation and their status in Rwanda at the time, the strength of the case as well as the need for greater geographical spread of indictees – an important factor on the ground in Rwanda – I propose to retain for trial in the ICTR only 17 of the 22 detainees whose trial has not commenced. The remaining five will be the subject of applications for transfer to national jurisdictions for trial. Whilst the number of indicted fugitives for apprehension is still retained at 16, if arrested, only 12 of those would stand trial at the ICTR with the remaining four being transferred to national jurisdictions. The targets for investigation have been reduced from 26 to 16. Some of these will be subject to further review by mid year 2004 to determine whether on the basis of evidence and the prospects for additional evidence, any further efforts should be spent on them, or the files closed. Of the 40 files originally earmarked for transfer, eight have been dropped altogether but with the addition of the proposed transfers from the first two categories, the global figure for referrals to national jurisdictions now stands at 41. The premise is that the Tribunal will be able to commence and conclude 34 new trials before the end of 2008 (including those currently awaiting trial).

Clarifying our target and determining the workload, in other words, determining our completion strategy was the first of two critical issues to be addressed. The second – the measures and strategies we need to put in place to successfully implement that strategy – also needed to be addressed.

For this purpose, 40 colleagues from OTP gathered at Amboselli over this past weekend to grapple with the challenge of completing our mandate within the time frame allowed to us by the Security Council. We set three objectives for ourselves, for the workshop and beyond. First, to renew our focus, unify our purpose, and reinvigorate our commitment. Second, to devise a plan capable of action, and commit ourselves to the dignified completion of that plan. Third, to foster teamwork and collaboration amongst the management, investigations, evidence and trial sections, as well as within other organs of the Tribunal.

Over two and a half days we carefully studied all the key areas of our work: investigations, indictments, the pre-trial process, the trial appeals process. We looked for ways to streamline processes, eliminate duplication, improve coordination and generally gain in focus and efficiency. OTP colleagues from both investigations and prosecution shared their thinking and together made many recommendations on how we can expedite the process and move forward quickly. Some important concerns were raised and discussed frankly. The number of appeals, Rule 68 disclosures, the alignment of trial theories, the need for coordination, pursuing pleas of guilty were some of the concerns discussed. We talked about the relationship between investigation and prosecution. We acquired a greater understanding of the concerns of investigations and some of the decisions we have taken reflect that understanding.

We came away with a number of decisions and conclusions. In fact, we realized that many of the changes we had been putting into place were already beginning to address the issues and concerns that came out of our discussion. The list is actually quite long. We have begun monthly meetings to address legal issues. We have begun induction and training programmes for staff. We have issued Practice Notes to guide our work. We have increased our liaison with governments to facilitate investigations. A Tribunal Coordination Committee has been in existence for sometime now to discuss Tribunal issues at the highest level. We established quarterly meetings between Commanders and STAs. Rule amendments working group has been deliberating to make recommendation for amendments that would facilitate our work. An 11 bis transfers working group has begun deliberations. The Legal Advisory Unit has been studying the possibilities that the rules relating to judicial notice and established facts present in terms of expediting hearings. An Administrative Officer has been appointed to handle staffing and other resource issues to relieve the management of some administrative pressures so they can focus on our core work. Workshops with investigators have begun and will continue. We have reviewed our resource needs and submitted a request to administration. As I said, the list is long and extensive.

In addition to those measures already in place, consultations on other issues are already being undertaken. A process has been initiated to determine the manner of completing investigations on new indictments by 2004. We are addressing the need in respect of interpretation and translation services. We have begun a series of projects to strengthen the tools the Evidence Unit including Zy improvement, Case Map, OTP Global Information Network, a Master Chronology, and an Evidence Disclosure Suite for commonly requested defense documents.

Our work together in Amboselli led us to take new decisions as well.

In terms of the readiness of indictments and the timing of pre-trial briefs, we decided that indictments will be prepared and filed only after proofing and selection of all witnesses. With the pretrial brief prepared, putting us in a position to go to trial immediately when the indictment is confirmed.

We make decisions concerning our indictment policy. In the future, all indictments will follow certain principles including simplicity, avoiding excessive numbers of charges, charging only the crimes where there is cogent evidence, and not laying lesser or subsidiary charges when there is compelling evidence on major charges such as genocide and extermination. Indictments will be submitted for peer review to ensure accuracy and consistency with OTP policy. To capture this new indictment policy, the Chief of Prosecutions will issue Practice Notes by the end of May.

We made policy decisions concerning our witness selection. Witnesses will be selected on specific criteria aimed to expedite the trial process. Only the best witnesses will be chosen; this will be limited to those absolutely necessary. Eyewitnesses and first hand witnesses will be preferred. Age and health are to be considered as well.

Out of our discussions came a clear decision to investigate the use of pleas to expedite our workload. To advance this approach, a Plea Committee will be established. The Terms of Reference will be drafted by mid-March, and the committee will be selected and convened by the end of March.

We came to the conclusion that we must use the Rules more creatively and aggressively to expedite trials. Rules 92 bis and 94 in particular were identified as useful in this respect.

As an immediate measure to improve coordination between the trial teams on the cases currently in trial, we decided that the STAs of those teams will meet, along with the Chief of Prosecution, as well as representatives of Legal Advisory and Appeals Units, discuss and present a unified theory for review and discussion by a wider group. Many other recommendations were made concerning coordination, but will require further consultation before a decision can be taken.

Communication and information sharing between investigations and trial emerged as a core issue. Progress was already made at the November Investigations Workshop in Kigali. Colleagues at that workshop made a number of recommendations that will be reviewed by the Chief of Investigations and the Chief of Prosecutions, who will issue guidelines on the subject by 30th March.

To expedite the work of investigators and prosecutors for a case, it became apparent that direct communication between the staff members involved was useful, and at the same time, potentially created problems. We decided that it was important to include reference to the chain of command in each section on these occasions.

We identified Rule 68 as a thorny issue; a Rule 68 Protocol is being drafted, and will be finalized by mid March.

As information management and the use of information technology are essential to our work, we will inaugurate an Information Management Consultative Committee to support the work of all sections in coordinating information. We will draft the Terms of Reference and begin work by mid March.

Staffing and redeployment remains an important issue. The Chiefs of Prosecution and Investigations will review and report on their resource requirements to achieve the Completion Strategy. In this respect, we realized the need to engage in a similar process as we did in Amboselli with our colleagues in Kigali to determine the best way forward for the work of completing investigations on new indictments.

We also spent time discussing how we work together to achieve our goals. We came to realize that we were aligned in our personal convictions of the value of teamwork, of sharing information, of respecting colleagues by arriving prepared and on time for meetings, of listening and refraining from imposing our own views on others, of collaborating rather than competing. We agreed that it is important to ask for help when we need it, and to support each other when help is required. We are aligned in the values of putting personal interests aside for the good of OTP and the mandate of the Prosecutor, of putting in our best effort and building trust with colleagues. We know when we have concerns we must speak up rather than remain silent and complain or blame others later.

But we also came to the awareness that, while we are all committed to those values, in practice, under the pressures of work, we don’t practice them as consistently as we know we should. We have renewed our commitment to each other and to you, to keep them in the forefront of our minds as we work together towards achieving our important mandate.

The implementation of these decisions will require us to focus on a daily basis on our priorities and on expediting our work. It will sometimes require the sacrifice of personal interest to the greater cause of humankind. We do not work in an abstract context, but in the context of dehumanizing crime, even ultimate crime, against people, many of whom are the most vulnerable in our world: the aged, children and women. So it is that we find ourselves at this crucial phase in our work, and we move towards completion and exit from this particular function in the global fight against egregious violations of human rights. The fight will go on in other places and other times, but we will have the knowledge and conviction that we have played a very significant part in that fight. Indeed the skills we are developing here will equip us as individuals to take up that fight in other places for the betterment of the lives of others.

It is evident that the ICTR has achieved much in the decade of its existence. But there is much more to be done. There is more to do in half the time than we have had in the past. This will require us to work differently. An incremental change will not suffice. We must change how we approach our work. A first step has been the difficult decisions made concerning which targets to pursue. More difficult decisions will need to be made. In fact, each and every one of us will need to make difficult decisions on a daily basis as to how we use our time, where we focus our energy. This amounts to changing out organizational culture to better serve us.

While the ultimate responsibility to answer to the international community is mine as Prosecutor, and I accept that, I cannot perform my tasks without the commitment of you all to the cause of international human rights, and the delivery of justice to a brutalized people. Your senior management team, who are at one with me on this, ask you for the renewal of your commitment to our mandate and to the change necessary to achieve it.

Thank you and best wishes.

3

Statement to U.N. Security Council 29th June 2004 on UNICTR Completion Strategy

Mr. President,

When I addressed the Security Council last on 10th October 2003, I undertook, as the first step following my appointment to the Office of prosecutor of the ICTR, to carry out a review of the case load of the Tribunal with a view to identifying what should be concentrated on and in my view could be accomplished within the timeframes set by the Completion Strategy. I also undertook to consider what measures were to be applied to the rest of the workload.

You now have before you a revised version of the ICTR Completion Strategy with the assessment required under Security Council Resolution 1534 (2004). That revised strategy and assessment is an outcome of the review undertaken by the Office of the Prosecutor (OTP) and consultations between all organs of the Tribunal.

I wish to report that the OTP has reviewed the caseload and identified what cases it considers can and should be proceeded with at the Tribunal or transferred to national jurisdictions; we have reviewed and identified strategies within the OTP whose implementation we believe will enhance our capacity to respond more effectively to the challenge of completion; we have also adopted a Completion Strategy Action Plan setting out the critical measures which need to be taken to implement the completion strategy and the time frames for doing so; a monitoring mechanism has also been put in place to oversee the implementation of the plan.

Since October 2003, proceedings were completed and judgement delivered by the Trial Chambers in the following cases:

a) Media Case - Three accused (Barayagwiza, Nahimana and Ngeze) (all convicted) on 3rd December 2003.

b) Kajelijeli Case – Single accused (convicted) on 1st December 2003.

c) Kamuhanda Case – Single accused (convicted) 22nd January 2004.

d) Cyangugu trial with three accused (Ntagerura and Bagambiki both acquitted) and Imanishwe (convicted) 25th February 2004. There is an appeal by the OTP against the acquittals pending in the Appeals Chamber of the Tribunal.

e) Gacumbitsi – Single accused (convicted on 17th June 2004 and sentenced to 30 years imprisonment for genocide and crimes against humanity).

Altogether, the cases of nine accused have been concluded by the Trial Chambers since October 2003.

Of the twenty-one detainees in Arusha who are currently on trial, the prosecution expects to close its case in the trial of ten of the accused by the end of 2004 (i.e. Butare Case and the Military I Case). We have just finished the prosecution phase in the case of one accused (Muhimana) and completed trial in the two cases of two accused (Gacumbitsi and Ndabahizi). Judgement has been delivered in the former and is expected this year for the latter. The Prosecution expects to close its case against at least four other accused early next year. The trials of six other accused are ready to commence before the end of the year.

The Completion Strategy is not static one. It will continue to be kept under review and adjusted, if necessary in the light of new circumstances. It should be implemented with the necessary flexibility to ensure fulfilment of its objectives.

In our review, we have been guided by the request of the Security Council to concentrate on the leadership cases these being in the words of Resolution 1534 (2004)

The most senior leaders suspected of being most responsible for crimes within the jurisdiction of the tribunal

In this context, we have been guided by the status of the offender, the nature and gravity of the offence, the strength of the evidence, the need to cover as much as possible, the major geographical areas of Rwanda, the strong possibility of apprehending the individuals and the prospect of transfer of the suspect/accused to a national jurisdiction for prosecution.

Of those 16 accused persons remaining in detention, we propose to transfer at least five of them to Rwanda for prosecution subject to satisfactory arrangement being concluded. We also propose to transfer the case of at least four of those indicted fugitives to national jurisdictions for prosecution.

On the basis of the criteria set out earlier, we have reduced the number of targets for investigation from the original twenty six to sixteen. Investigations on these sixteen targets will be concluded by the end of 2004.

As regards the allegations against members of the RPF, my office is now evaluating the evidence which has so far been gathered with a view to determining whether there is a sufficient basis for prosecution, against whom and for what.

I have also been engaged in discussions with the Rwanda government as to the options available for dealing with any cases which may arise from such evaluation. This is being done in the context of the concurrent jurisdiction that both the Tribunal and Rwanda can exercise over this matter, with due regard to the primacy of the Tribunal.

I expect that the number of accused to be tried at the Tribunal, excluding those already in detention, will be a maximum of 28 (i.e. the twelve fugitives if apprehended and the sixteen targets if there is sufficient and cogent evidence to proceed against them). However, a more realistic assessment is that the actual number will fall below this figure. The outcome depends largely on the state of the evidence after the conclusion of investigations this year and success rate in apprehending those at large.

The number of suspects whose dossiers the Prosecutor intends to transmit to national authorities has only marginally increased from to forty to forty one. Council should note, Mr. President, that this category is different from the case of accused who have been charged and in respect of whom transfers will be initiated. Those whose files are scheduled for transmission are all unindicted persons at large. It is possible that where the evidence already establishes a prime facie case, we may seek confirmation of an indictment, issue of an arrest warrant and also an order for transfer to a national jurisdiction.

OTP Internal Strategies: Mr. President, the number of accused who remain to be prosecuted at the Tribunal between now and the end of 2008, when trials at first instance are scheduled to conclude, is greater than the number of accused whose cases have been concluded in the period from the inception of the Tribunal to date.

Meeting this challenge requires new strategies. The OTP senior staff took time off to collectively review its working methods and consider new measures that need to be applied at a strategic review workshop in February 2004. Clarifying our target and determining our workload in other words determining our completion strategy was the first of two critical issues to be addressed. The second – the measures and strategies required to successfully implement that strategy – also needed to be addressed.

At the workshop, we studied all the key areas of our work – investigations, indictments, the pre-trial process, the trial process and the appeals process. With a view to devising a plan capable of action, to foster teamwork and collaboration amongst the management, investigations, evidence and trial sections as well as with other organs of the Tribunal, we looked for ways to streamline processes, eliminate duplication, improve coordination and generally improve on our focus and efficiency in the prosecution of cases.

We have decided on a new indictments policy. As a general rule, we will proceed with the new cases on the basis of single accused indictments, unless it is otherwise absolutely necessary. The experience of the Tribunal indicates that these single accused cases move faster than the multiple accused cases, given the prolonged examination of witnesses in the latter and can be concluded in an average of three to four months. Several single accused cases running concurrently in a Trial Chamber can thus be concluded in a shorter period than it would normally take for the same number of accused to be tried together jointly in a single trial.

All new indictments will observe certain principles including simplicity, avoiding excessive numbers of charges, charging only the crimes where there is cogent evidence, and not applying lesser or subsequent charges when there is compelling evidence in major charges such as genocide and extermination. All indictments will be submitted for peer review to ensure accuracy and consistency with OTP policy and the law. This will avoid or reduce the need for amendments to indictments which have caused inordinate delay in the trial proceedings.

Indictments will be drafted and filed only after proofing and selection of witnesses with the pretrial brief prepared. This will put the OTP in a position to proceed with the trial immediately when the indictment is confirmed by a judge.

Witness selection will be based on specific criteria aimed at expediting the trial process. The best will be chosen. The number limited to those absolutely necessary to prove the case. All these measures are intended to expedite trials and facilitate the transfer of cases to national jurisdictions where necessary.

It must be stated that other factors such as the availability of courtroom space, judges and readiness of the defence teams will also impact on the commencement and continuation of proceedings, once the OTP has prepared these cases for trial.

A series of projects have been started or are being explored to strengthen the tools of the Evidence Unit including ZY improvement, Case Map, OTP Global Information Network, a Master Chronology and an evidence disclosure suite for documents commonly requested by the defence.

The sustained implementation of these measures I believe, will enhance considerably our capacity to rise to the challenge of completion.

Coordination between trial teams currently handling cases on trial has been improved with regular weekly meetings of Senior Trial Attorneys and the Senior Management to discuss cases on trial as well as those in preparation. Trial support and coordination has been facilitated with the creation of a new practice support unit within the OTP which provides support on difficult areas such as witness management issues, sharing of information between trial teams and provision of other support to such teams.

As a strategy, the OTP remains open to plea bargaining negotiation with any of the accused who are inclined to do so. This process is perfectly acceptable, is permitted by our rules and is subject to judicial control to ensure fairness and legality. In this regard, practice directions are to be issued shortly to trial attorneys outlining the procedures to be followed.

A number of items on the OTP Action Plan require specific reference. As required by the Security Council, we expect to close investigations on new indictments by the end of 2004. By the end of October 2005, it is proposed to have completed the review of the evidence and the filing and confirmation of any new indictments in accordance with the new indictment policy. We plan to get trial ready the cases of all the remaining detainees by mid 2005, barring those whose cases are to be transferred to national jurisdictions for prosecution.

TRANSFER/TRANSMISSION OF CASES & DOSSIERS

The transfer of cases is an important component of the Completion Strategy. We remain firmly committed to this element of the Strategy. The OTP plans to commence immediately the preparation of those files which are scheduled for transfer or transmission. We hope to conclude that process by the middle of 2005.

The Ad Hoc Committee on Transfer of Cases – set up to advise on the strategy and conditions for transfer of cases – submitted its report and recommendations in April/May 2004. As a follow up, a draft agreement on transfer of cases is now being prepared by the OTP as a basis for negotiations with interested countries. A questionnaire was also prepared by the Committee which has been circulated to a number of countries. It is our intention that the second half of this year should see discussions/negotiations with Rwanda and other countries for the conclusion of agreements on transfer of cases. So far the OTP has identified Rwanda and seven other countries as potential destinations.

In the case of Rwanda, a mission fielded by the registrar has recently concluded an inspection of prison facilities in that country as a prelude to consider a prisoner transfer agreement. Accused persons