Rwanda: Litigating for compensation for the acquitted

When Major F. X. Nzuwonemeye, one of the Co-Accused in the “Military II” case at the ICTR, was acquitted by the Appeals Chamber in February 2014, he had already served 2/3rds of the 20-year sentence which had been imposed by the Trial Chamber. [1] In most jurisdictions, the completion of 2/3rds of the sentence makes the person eligible for release. The legal grounds for acquittal included a fair trial violation of notice, as well as evidentiary errors by the Trial Chamber. Major Nzuwonemeye is now living in a “safe house” in Arusha, Tanzania, because no country where he can safely live has accepted him. See my posting at http://ilg2.org/2014/05/19/acquitted-but-still-not-free/ .

At the time of his acquittal, the client had already served the punishment for the crimes for which he was acquitted. On its face, this is a grave and manifest miscarriage of justice. It should be a given that an international tribunal would remedy this violation of human rights.

But this did not happen. In August 2015, the MICT (which replaced the ICTR and ICTY) dismissed our Motion for Compensation and Damages for lack of jurisdiction. The complete pleadings are available on the MICT website at www.unmict.org They include the Defence Motion and Additional Submissions, the Prosecution’s Response and Additional Submissions and Decisions, between February and August 2015.

Unfortunately, the denial of compensation to Major Nzuwonemeye and other acquitted persons was not unexpected. No compensation has been granted except in one ICTR case: Rwamakuba was awarded $2000 for a breach of his right to counsel. This pittance effectively ridicules the violation of his rights.

Although there is no legal right to compensation in the Tribunal’s Statute, appellate jurisprudence unequivocally holds that there is an obligation to provide effective remedies for human rights violations. Therefore, if the Tribunal decided to provide compensation as a remedy to those who were acquitted, it would figure out a way.

In fact, in 2000, the Presidents of the ICTY and ICTR, Judge Jorda and Judge Pillay, requested that the Statutes for the ad hoc tribunals be amended to include the competency for compensation in three situations: a) when a person has been acquitted; b) when there has been a violation resulting from wrongful arrest, prosecution or conviction; c) unlawful detention. This never happened.

The failure to provide a financial remedy to the acquitted cements the well-known notion that the possibility of acquittal was never envisioned by the Tribunal. A spokesman for the ICTR, then ICTR Deputy Registrar Everard O’Donnell explained:

The simple fact is—and there is some truth in this particular fact—that no proper provision was made for acquittal at the beginning of the setting up of the Tribunal. That much is a fact, and it’s one that we have been struggling with in the registry ever since. There was no budget for dealing with acquitted persons.[2]

I do not think that the absence of compensation in the ICTR or ICTY Statutes was an oversight, or an act of negligence. Rather, it objectively illustrates that the presumption of guilt is alive and well in international justice.

Will the presumption of guilt be allowed to continue to smother the right to be presumed innocent? Will violations of human rights principles of fair trial be remedied? The successful survival of international justice depends on the answers.

* Beth S. Lyons served as a defense counsel in three cases at the International Criminal Tribunal for Rwanda in Arusha, Tanzania. Her review of Professor Nancy Amoury Combs' book, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions, was published in the Journal of Genocide Research in September 2011. This article originally appeared on IntLawGrrls on 21 November 2015.

END NOTES

[1] Major Nzuwonemeye was represented at trial and on appeal by Lead Counsel Chief Charles A. Taku and Co-Counsel Beth S. Lyons.

[2] International Symposium, Geneva, ‘International Criminal Tribunal for Rwanda: Model or Counter Model for International Criminal Justice? The Perspectives of the Stakeholders’, Session 4, Geneva, 10 July 2009, p 12. Available at www.ictr.org

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