Mugesera is Now in Rwanda

Leon Mugesera has been returned to Rwanda where he can be expected to stand trial for incitement to genocide. His final procedural gasps succeeded on very temporarily in resisting transfer from Canada.
This is the third important recent development regarding transfer or return of genocide suspects to Rwanda to stand trial. In earlier postings on this blog, reference has been made to recent rulings of the Appeals Chamber of the International Criminal Tribunal for Rwanda and of the European Court of Human Rights, both of them favourable to such transfers.
Now, Rwanda faces a great challenge. It must ensure that the accused persons receive fair trials.
Great efforts have gone into building a justice system in Rwanda that is capable of ensuring this. Compared with the justice system I saw when I first visited Rwanda in January 1993, the progress is absolutely incredible. But that doesn't make the challenge any less daunting at this point.
If Rwanda succeeds, it will represent a very important milestone in the delivery of justice and in the struggle against impunity. It needs all of the support and encouragement we can provide at this point.

Thoughts on the Kenya Confirmation Decisions

Last week, Pre-Trial Chamber of the International Criminal Court II issued two decisions in the cases concerning the post-election violence that took place in Kenya in 2008. These decisions ruling on the confirmation of the charges, which is a pre-trial stage in the proceedings governed by article 61 of the Rome Statute. The Pre-Trial Chamber must decide whether there are “substantial grounds” supporting the allegations of the Prosecutor, failing which it does not allow the case to proceed to trial.

In the recent decisions, which concerned six individuals, two of the accused were successful while the other four are set over for trial. Some or all of them may seek permission to appeal the decisions.

A Low Score for the Prosecutor

Succeeding with only four of six accused at this preliminary stage, where the Prosecutor must demonstrate “substantial grounds” but need not satisfy a burden of proof of “preponderance of evidence”, let alone “beyond a reasonable doubt”, is not very impressive. The Prosecutor should be able to assess weak cases before they get to this stage.

In total, four cases have been rejected by the Pre-Trial Chambers at the stage of the confirmation hearing (in addition to the two last week, Abu Garda (Sudan) and Mbarushimana (DRC)). Overall, some fourteen suspects have been subject to confirmation hearings. A score of 10 out of 14 is not very impressive. That’s a failure rate of 29%.

Comparisons with the performance of the ad hoc tribunals are useful in assessing the performance of the Prosecutor of the International Criminal Court. There is no equivalent procedural stage, which might lead one to conclude that the weak cases have to wait to the trial stage to get filtered out. The closest that the ad hoc tribunals come to anything equivalent is the defence motion to dismiss that occurs at the close of the prosecution’s case. Indeed, the Prosecutor of the International Criminal Court has made the same analogy (see para. 68 of Muthaura et al. decision). Dismissal of charges at this stage of the proceedings by the ad hoc tribunals is virtually unknown.

We might expect to see a rate of acquittal at the ad hoc tribunals comparable to the rate of rejection at the confirmation hearing stage. Following this reasoning, the acquittal rate at the ad hoc tribunals should be even higher than 29%, given that at trial the defence need only raise a reasonable doubt, and is in a position to fully challenge the prosecution’s evidence.

But this is not what we see at the International Criminal Tribunal for the former Yugoslavia. By my count, there have been final judgments in 94 cases. Only 13 of these have been acquittals. That is a failure rate for the Prosecutor of the Yugoslavia tribunal of 14%, less than half the equivalent statistic for the confirmation hearing stage at the International Criminal Court.

The Prosecutor of the International Criminal Court may feel that the judges of the Pre-Trial Chamber are too demanding. But all they seem to be doing is weeding out the cases that will lead to acquittals at trial, and it is hard to argue with that. The problem seems to be with the Prosecutor, who is not discerning enough with the cases with which he chooses to proceed. Such a high rate of dismissal of charges at the confirmation hearing stage has many negative consequences, among them: it wastes the time and resources of the Court; it creates false hopes for victims; it causes injustice to the individual accused, who may spend considerable time in custody or otherwise in jeopardy with respect to charges that ultimately are not substantial enough to justify a trial.

The role of defence evidence

            In the two Kenya cases, defence counsel produced a very significant amount of evidence in order to challenge the charges. They relied upon article 61(6) entitles the defence to ‘Challenge the evidence presented by the Prosecutor’ and ‘Present evidence’.

            The Prosecutor takes the position that the Pre-Trial Chamber is to accept the prosecution evidence tendered at the stage of the confirmation hearing as long as it is relevant. ‘It should avoid attempting to resolve contradictions between the Prosecution and Defence evidence, because such resolution is impossible without a full airing of the evidence from both sides and a careful weighing and evaluation of the credibility of the witnesses. That will occur at trial.’ (See para. 67 of Muthaura et al. decision).

If this is indeed the position, it is difficult to understand the interest that the defence would have in producing any evidence at all. There might be occasional cases where the defence would want to put testimony on the record, perhaps out of concern that a witness would die or be otherwise unavailable at trial. But this would be very much the exception rather than the rule.

In the Kenya decisions, the judges reject the Prosecutor’s submission. They say that they undertake a “free assessment of the evidence” regardless of the party that submits it. At various points in the lengthy ruling they consider the evidence submitted by the defence but, in general, it is rejected in favour of the Prosecutor’s evidence.

What is the standard of proof here? On the one hand, according to the Statute the Prosecutor is required to establish “substantial grounds” rather than proof “beyond a reasonable doubt”, which is the standard at the trial stage. But what does that mean for the defence evidence? Presumably it is not enough for the defence to raise a reasonable doubt. In order to succeed at the confirmation hearing, must it succeed in challenging the prosecution evidence on a preponderance of evidence standard? Or must the defence establish its case “beyond a reasonable doubt”? It is unfortunate that the decisions do not provide much clarity here.

The defence evidence is rejected, but we do not entirely understand whether it is because the judges had doubts about its reliability or its relevance, or because it was overpowered by the Prosecutor’s evidence. Apparently, the Prosecutor did not produce any live witnesses and relied entirely upon statements, whereas the defence brought many witnesses to the confirmation hearing. Is the issue of the “quality” of the witnesses irrelevant here?

Perhaps the judges are trying to send a quiet message to the defence that they should not waste their time submitting evidence at the confirmation hearing unless it is truly overpowering. There is a danger that if they open the door too widely to defence evidence at the confirmation hearing, this will force the Prosecutor to produce more evidence as well, and then what should have been a rather brief  preliminary proceeding will turn into a miniature trial.

            There are probably too many different standards of proof in the Rome Statute. The lowest is the “reasonable basis” standard for authorization of an investigation (art. 15). Then we go to “reasonable grounds” for issuance of an arrest warrant (art. 58) followed by “substantial grounds” at the confirmation hearing and “beyond a reasonable doubt” at trial (art. 66).  How can these be distinguished. Well, a “reasonable basis” is lower than “reasonable grounds”. “Substantial grounds” are higher than “reasonable grounds”. It is all very arcane. The lower standards of “reasonable basis” and “reasonable grounds” seem to work because they are applied in uncontested or ex parte proceedings. But at the confirmation hearing, where there may be a robust defence, the mystery of what this standard consists of becomes more serious.

The confirmation hearing is an unprecedented proceeding within the international criminal justice system. The defence is entitled to better guidance as to the value of producing evidence, and the standard it must meet in order to rebuff the prosecution.

Judge Kaul’s Dissent

            As in previous Kenya decisions, Judge Hans-Peter Kaul dissents. His main difficulty with the cases has been expressed in earlier rulings. He considers that crimes against humanity require a nexus with State policy, and he interprets the reference to “State or organizational policy” in article 7(2)(a) of the Statute accordingly. It is a view with which several academic commentators including myself are in agreement.

            There are some interesting thoughts in Judge Kaul’s latest dissent about prosecutorial policy. In particular, he refers to the statement issued by the Prosecutor in 2006 announcing his decision not to proceed with an investigation in Venezuela. To my knowledge, this may be the first time that a judge of the Court has considered the overall policy of the Prosecutor by comparing cases that are actually underway with those where the Prosecutor has chosen to do nothing.

Young Penalists Course in Siracusa

The International Institute of Higher Studies in Criminal Sciences is holding its 12th Specialization Course in International Criminal Law for Young Penalists on "Assessing Patterns of Transnational
Organized Crime, the International Criminal Responsibility of Non-State Actors, and the Effectiveness of the International Enforcement System". The course will take place from May 20th to May 30th and is open to all international graduate law students. It is held in Siracusa, Italy, in beautiful Sicily.
The deadline for application submissions is March 25th, 2012. ISISC will select 60 participants who should have at a minimum a first degree in law, having graduated in the last eight years (between 2004 - 2012), and be 35 years of age or under. Furthermore, the Institute will offer 10 scholarships to applicants from Developing and Less Developed Countries.
All relevant information and the application form are available here. (www.isisc.org). Please do not hesitate to contact ISISC for any questions or concerns you may have at icl-2012@isisc.org.

A Nasty Judgment from the European Court of Human Rights in a refoulement case

Yesterday, the European Court of Human Rights dismissed an application by two individuals, Harkins and Edwards, who were resisting extradition to the United States. The issue of the death penalty was relatively secondary, because diplomatic assurances had been given by the Americans authorities and the Chamber considered these to be satisfactory, enjoying a presumption of good faith.

The heart of the case was the threat that the two men would face a mandatory sentence of life imprisonment without any hope of release on parole if convicted upon return to the United States. In the trade, this is called ‘LWOP’ (‘life without parole’).

Agreeing that this was a very plausible outcome, particularly in the Harkins case, the unanimous Chamber said it was

prepared to accept that while, in principle, matters of appropriate sentencing largely fall outside the scope of Convention (Léger, cited above, § 72), a grossly disproportionate sentence could amount to ill-treatment contrary to Article 3 at the moment of its imposition. However, the Court also considers that the comparative materials set out above demonstrate that “gross disproportionality” is a strict test and, as the Supreme Court of Canada observed in Latimer (see paragraph 73 above), it will only be on “rare and unique occasions” that the test will be met. (para. 133).

According to the Chamber,

193. … the Court notes that he faces a mandatory sentence of life imprisonment without parole, which, as it has indicated, requires greater scrutiny than other forms of life sentence. However, the Court is not persuaded that such a sentence would be grossly disproportionate in his case. Although he was twenty years of age at the time of the alleged offence, he was not a minor. Article 37(a) of the United Nations Convention on the Rights of the Child demonstrates an international consensus against the imposition of life imprisonment without parole on a young defendant who is under the age of eighteen. It would support the view that a sentence imposed on such a defendant would be grossly disproportionate. However, the Court is not persuaded that Article 37(a) demonstrates an international consensus against the imposition of life imprisonment without parole on a young defendant who is over the age of eighteen. Equally, although the applicant has provided a psychiatrist’s report showing him to be suffering from mental health problems, as the Government have observed, that report stops short of diagnosing the applicant with a psychiatric disorder. Therefore, while the Court accepts that the applicant has some mitigating factors, it is not persuaded that the applicant possesses mitigating factors which would indicate a significantly lower level of culpability on his part.

The Court accepts that the sentence which the first applicant faces would be unlikely to be passed for a similar offence committed in the United Kingdom, particularly when there is no felony murder rule in England and Wales. The Court also notes that the Supreme Court of Canada, in Martineau, has found that the rule is contrary to the fundamental principles of justice. Therefore, the Court would not exclude that a sentence imposed after conviction under the felony murder rule could, in a sufficiently exceptional case, amount to a grossly disproportionate sentence. This would be particularly so if the sentence was one of mandatory life imprisonment without parole but the facts of the case involved a killing in respect of which there was no real culpability on the part of the defendant.

140.  Second, as the Court has stated, an Article 3 issue will only arise when it can be shown: (i) that the first applicant’s continued incarceration no longer serves any legitimate penological purpose; and (ii) his sentence is irreducible de facto and de iure. The first applicant has not yet been convicted, still less begun serving his sentence (cf. Kafkaris and Léger, cited above, and Iorgov v. Bulgaria (no. 2), no. 36295/02, 2 September 2010). The Court therefore considers that he has not shown that, upon extradition, his incarceration in the United States would not serve any legitimate penological purpose. Indeed, if he is convicted and given a mandatory life sentence, it may well be that, as the Government have submitted, the point at which his continued incarceration would no longer serve any purpose may never arise. It is still less certain that, if that point were ever reached, the Governor of Florida and the Board of Executive Clemency would refuse to avail themselves of their power to commute the applicant’s sentence (see paragraph 52 above and Kafkaris, cited above, § 98).

Accordingly, the Court does not find that the first applicant has demonstrated that there would be a real risk of treatment reaching the Article 3 threshold as a result of his sentence if he were extradited to the United States. The Court therefore finds that there would be no violation of Article 3 in his case in the event of his extradition.

In a general sense, the Court took the view that issues of disproportionate sentencing do not arise at the moment the sentence is imposed, but much later, when it can be shown that there is no longer any valid penological purpose to continued detention. The problem in an extradition case is that the European Court of Human Rights will no longer be available once the applicants are back in the United States.

The decision includes a discussion of the distinction between inhuman treatment and torture. The Court revisits this old issue, and finds that in the context of extraterritorial application of the Convention the distinction is not of much significance.

The right-wing press in the United Kingdom are ecstatic about this decision, a change from the general pattern of harsh attacks on the European Court

David Scheffer : All The Missing Souls

I’ve been meaning to write about David Scheffer’s book All the Missing Souls since it was issued late last year.

Yesterday’s very favourable book review in the Financial Times by Philippe Sands brings it to the attention of readers here in the UK, and internationally, and prompts me to comment after an unusually lengthy winter break this year.

As would be expected, Philippe Sands is critical of the US policy, but he is also full of respect for David Scheffer’s account. As the first Ambassador at large for War Crimes Issues, David Scheffer was literally at the centre of what is the most fertile period in the development of international criminal law since the Nuremberg Trial. For that reason alone, his book demands attention.

It is full of anecdote, of course, but also a tremendous amount of substance. Since leaving the administration, in January 2001, Professor Scheffer has developed an impressive academic profile. He is a prolific writer on criminal justice topics. His insights into the dynamics of the evolving US policy in international criminal justice are invaluable.

Amongst the many textbooks in international criminal law, David Scheffer’s book is refreshingly different. It makes good reading for specialists and for students, yet it is also highly accessible to a broad public. This is a must acquisition for the international criminal law bookshelf.

BS Watch

Readers of the blog may have seen, from time to time, reference to scurrilous attacks from the blog named ‘UN Watch’.  On Friday, its headline story noted the third anniversary of the Goldstone Report, the colloquial label given to the report of the Commission of Inquiry into the Gaza war.

It gloats over what it calls the retraction by Richard Goldstone of ‘The core charges of the report—that Israel's leadership intentionally plotted to murder Palestinian civilians, and did so from racist motives’. But they were not the 'core charges'. They were actually very secondary and marginal charges in the report, and to my knowledge the only ones on which Richard Goldstone has changed his mind. 

The real core charge is that Israel pursued a strategy that it had developed in Lebanon in 2006 of massive destruction of the civilian infrastructure. The goal was to punish the Palestinians in Gaza for their support of Hamas. I don’t think anyone has come up with a good argument against this conclusion of the report. I suspect that UN Watch would agree that this was the policy being pursued by the Israeli military in Gaza. Probably UN Watch supports such a policy.

Friday’s blog continues: ‘Overnight, anti-Israel intellectuals who had hailed Goldstone as a modern-day saint turned on him with a vengeance, especially those uneasy with their Jewish ancestry, such as Roger Cohen, Richard Falk and William Schabas.’

First, I have never turned on my good friend Richard Goldstone, ‘with a vengeance' or otherwise. I am not ‘anti-Israel’, although I obviously cannot support many of its government’s policies and actions. Nor am I commonly attacked for my Jewish ancestry, with which I am comfortable and proud. Anti-Semitism crops up in unexpected places.

Mugesera Case: Yet Another Twist in the Debate about the Rwandan Justice System

To anyone who has followed the recent history of Rwanda, and particularly those familiar with the case law of the International Criminal Tribunal for Rwanda, the name Leon Mugesera will be well-known. His role in fomenting the climate of anti-Tutsi hatred that led to the 1994 genocide is discussed in several of the judgments, notably the first major ruling of the Tribunal in the Akayesu case.

This is from paragraph 99 of the Akayesu judgment:

…there were other propaganda agents, the most notorious of whom was a certain Léon Mugesera, vice-president of the MRND in Gisenyi Préfecture and lecturer at the National University of Rwanda, who published two pamphlets accusing the Tutsi of planning a genocide of the Hutu. During an MRND meeting in November 1992, the same Léon Mugesera called for the extermination of the Tutsi and the assassination of  Hutu opposed to the President. He made reference to the idea that the Tutsi allegedly came from Ethiopia and, hence, that after they had been killed, they should be thrown into the Rwandan tributaries of the Nile, so that they should return to where they are supposed to have come from. He exhorted his listeners to avoid the error of earlier massacres during which some Tutsi, particularly children, were spared. (references omitted).

Mugesera fled Rwanda prior to the genocide. Through a network of friends and allies, he made his way to Canada and successfully obtained resident status. In 1994, the Canadian government began proceedings to remove him from the country.

There was a long series of decision by immigration courts, culminating in an appeal to the Supreme Court of Canada, that he lost.

In the meantime, he initiated some litigation of his own, amongst other things suing the editor of this blog for defamation, a case he soon chose to abandon once he realised the energy that the lawyers of my former University in Montreal were prepared to devote to fighting the frivolous complaint.

Since the 2005 judgment of the Supreme Court, he has exhausted the remaining procedures available under Canadian law. Finally, after nearly 17 years, the end of his stay in Canada seems to be near.

The arguments about the alleged innocence of his remarks and the purported honesty of his refugee claim have now been rejected decisively and he has no more arguments in that area. His final challenge involves an attack on the Rwanda justice system. Mugesera claims that if returned to Rwanda, as the Canadian government now plans, he will be exposed to serious human rights violations.

This has been a familiar debate in recent years, with a number of related cases before national courts in Europe as well as the so-called Rule 11bis transfer decisions by the International Criminal Tribunal for Rwanda.

It seems that the tide has largely turned. Recently, the European Court of Human Rights rejected a complaint by a Rwandan who argued that if he were to be sent back by Sweden this would constitute refoulement contrary to the European Convention on Human Rights. Also last year, a Trial Chamber of the International Criminal Tribunal for Rwanda declared that improvements in the Rwandan justice system mean it was now acceptable for cases to be transferred there.

A Canadian immigration tribunal reached the same decision in early December, and it was on that basis that the proceedings to remove Mugesera in early January were undertaken.

Last week, a final attempt by Mugesera before the Federal Court of Canada was dismissed.

Then, the United Nations Committee Against Torture intervened with a provisional measures request to the Canadian government asking that deportation be suspended until the Committee can consider the merits. And a judge of the Quebec Superior Court granted a one-week interim injunction against the government.
For some accounts on the case by Canadian-based academics, see Rob Currie's blog and the posting on it by Fannie Lafontaine.  

Canadian public opinion (not to mention Rwandan public opinion) is frustrated by these delays and cannot understand why the proceedings were so protracted. In particular, newspaper editorials have been encouraging the government not to follow the provisional measures request by the Committee Against Torture. See the Globe and Mail and the Montreal Gazette.

Canadian officials have defied such requests in the past, and it will be unfortunate if the legal authority of the Committee Against Torture is further tarnished by the whole business.

Mugesera sued me back in 1997 because I said then that he should be sent back to Rwanda to answer the charges against him. When the University lawyers studied the tapes of my interviews and comments, they noted that I had consistently stated that Mugesera was presumed innocent, but that he should be put on trial in Rwanda for the serious charges against him. I haven’t changed my position by one iota.

I think his days in Canada are clearly nearing an end, although in this case one has learned to be prepared for the unexpected. We are still waiting for the Appeals Chamber of the International Criminal Tribunal for Rwanda to rule definitively on the transfer cases. Eventually, and hopefully sooner rather than later, Rwanda will be given a real opportunity to demonstrate that it can deliver fair trials. If it succeeds, an important chapter in attempts to address the 1994 genocide will be closed.

***

A postscript. In another Rwanda-related development, last week a French commission of inquiry into the famous plane crash which marks the starting point of the genocide concluded that the rocket that fired the missile came from the government military base close to Kigali airport. The report largely discredits the findings of French judge Jean-Louis Bruguière, who had promoted the thesis that the plane was shot down by RPF forces under orders from Paul Kagame. With last week’s report, that theory has lost a huge amount of traction. The Bruguière report, which was often cited by genocide deniers, is now largely discredited, and by an authoritative report from France itself.

See Linda Melvern’s column on this in The Guardian.