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How International Courts Shape Domestic Justice: Lessons from Rwanda and Sierra Leone

Published online by Cambridge University Press:  23 September 2013

Sigall Horovitz
Sigall Horovitz*
Affiliation:
PhD Candidate at the Law Faculty of the Hebrew University of Jerusalem and Research Associate with the Project on Effective International Adjudication. Formerly Legal Officer at the International Criminal Tribunal for Rwanda and Consultant at the Special Court for Sierra Leone. The research leading to this article received funding from the European Union Seventh Framework Programme under Grant Agreement No 217589 (Impact of International Criminal Procedures on Domestic Criminal Procedures in Mass Atrocity Cases (DOMAC)). Earlier versions were presented at international conferences at the University of the Witwatersrand (14–16 July 2010) and the University of Pittsburgh (19–21 April 2012). I thank Professor Yuval Shany, Professor Harmen van der Wilt, Dr Yaël Ronen, Dr Maria Varaki, Dr Rotem Giladi, Dr Shai Dothan, Þorbjörn Björnsson, Gilad Noam, Henry Lovat and Hirad Abtahi for valuable comments on prior drafts, and I especially thank Dr Victor Peskin for his eye-opening remarks. [email protected].
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Abstract

The International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) were created to deliver accountability for the atrocities committed during Rwanda's genocide of 1994 and Sierra Leone's civil war of the 1990s. The capacity of these courts, however, like other international criminal tribunals, is limited in terms of the number of persons they can prosecute. If most perpetrators evade justice, the ability of international tribunals to deliver accountability may be seriously undermined. To mitigate this risk, national justice systems should deal with the perpetrators who are not addressed by international tribunals. When national systems do not do so (or fail to do so effectively), international tribunals are well placed to encourage (or improve) national atrocity-related judicial proceedings, thereby increasing their chances of delivering accountability.

This article assesses empirically the impact of the ICTR and SCSL on national atrocity-related judicial proceedings in their target countries, thus contributing to an overall assessment of these tribunals. The article also compares the national impact of the ‘pure international’ ICTR to that of the ‘hybrid’ SCSL and tries to identify features that affect the national impact of an international tribunal. Understanding the interactions between international and national justice systems, and the features that affect the national impact of international tribunals, is particularly important given the shift to ‘positive complementarity’ at the International Criminal Court.

Keywords

international justiceinternational courtsinternational tribunalstransitional justiceRwandaSierra Leone
Type
Articles
Information
Israel Law Review , Volume 46 , Issue 3 , November 2013 , pp. 339 - 367
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2013 

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References

1 For example, Des Forges, Alison, Leave None to Tell the Story (Human Rights Watch 1999)Google Scholar, http://www.hrw.org/reports/1999/03/01/leave-none-tell-story; Samantha Power, ‘Bystanders to Genocide’, The Atlantic, September 2001, http://www.theatlantic.com/magazine/archive/2001/09/bystanders-to-genocide/304571 (describing the genocide in Rwanda as ‘the fastest, most efficient killing spree of the twentieth century’). The exact death toll is disputed. According to the Rwandan government, over one million people died during the genocide: see official website of the Republic of Rwanda, http://www.gov.rw/page.php?id_article=19.

2 See, eg, Alison Smith, Catherine Gambette and Thomas Longley, ‘Conflict Mapping in Sierra Leone: Violations of International Humanitarian Law from 1991 to 2002: Executive Summary’, 10 March 2004, http://www.npwj.org/ICC/Conflict-Mapping-Sierra-Leone-Violations-International-Humanitarian-Law-1991-2002.html.

3 The ICTR was established by UNSC Res 955(1994), 8 November 1994, UN Doc S/RES/955 (1994).

4 The SCSL was established through an agreement between the United Nations (UN) and the Government of Sierra Leone: Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (Special Court Agreement), 16 January 2002, http://www.sc-sl.org/DOCUMENTS/tabid/176/Default.aspx. The Special Court Agreement was concluded after the UN Security Council requested the UN Secretary-General to negotiate the establishment of such a court with the Government of Sierra Leone: see UNSC Res 1315(2000), 14 August 2000, UN Doc S/RES/1315 (2000).

5 UNSC Res 955 (n 3) preamble, paras 6–8; UNSC Res 1315, ibid preamble, para 7.

6 Their national judicial impact should be evaluated in light of the fact that neither of these ICTs was explicitly mandated or designed to proactively encourage national judicial developments, despite references in their constitutive instruments to the ‘need for international cooperation’ to strengthen the national justice systems of Rwanda and Sierra Leone. See UNSC Res 955 (n 3) preamble, para 9; UNSC Res 1315 (n 4) preamble, para 11.

7 Despite the SCSL's mixture of international and national components, it is still an international court in the sense that it operates under international law. See, eg, Prosecutor v Morris Kallon, Sam Hinga Norman, Brima Bazzy Kamara, Cases No SCSL-2004-14-PT, SCSL-2004-15-PT and SCSL-2004-16-PT, Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004, para 55 (‘the Special Court Agreement is an international agreement governed by international law. The Special Court is accordingly an international tribunal’). See also Issa Hassan Sesay and Others v The President of the Special Court and Others, Case No SC 1/2003, 10 May 2003 (in which Sierra Leone's Supreme Court recognised the SCSL as an independent court which is external to the national court system). It is also noted that the SCSL's international components are more dominant than its national components: for example, although the SCSL is mandated to prosecute international and national crimes, it chose to prosecute only international crimes.

8 Another relevant difference between the SCSL and the ICTR is the nature of their legal basis: the former was established through a bilateral agreement between Sierra Leone and the UN; the latter was created unilaterally by the UN Security Council. See UNSC Res 955 (n 3); Special Court Agreement (n 4).

9 It is noted that ICTs can also have national legal effects that may be in tension with local notions of justice. However, for the purposes of this article, the national legal effects of ICTs are considered to be desirable in that they increase both the number and quality of national proceedings in a manner that is conducive to national accountability. On ‘positive complementarity’ see, eg, ICC, ‘Prosecutorial Strategy 2009–2012’, 1 February 2010, paras 15–17, http://www.icc-cpi.int/NR/rdonlyres/66A8DCDC-3650-4514-AA62-D229D1128F65/281506/OTPProsecutorialStrategy20092013.pdf (explaining that positive complementarity requires the ICC to ‘encourage genuine national proceedings where possible’).

10 The interviews were conducted in Arusha, Kigali, Freetown and The Hague between 2008 and 2012. Interviewees were selected based on their seniority and familiarity with the relevant justice systems. They included top judicial policy makers and prominent lawyers at the international and national levels, as well as experts who contribute to the development of the relevant national judiciaries. Since many of the interviewees did not want the information they provided to be attributed to them, they are referred to in generic terms such as ‘a senior Rwandan official’, or ‘a SCSL judge’.

11 Preliminary Report of the Independent Commission of Experts (29 September 1994), annexed to Letter dated 1 October 1994 from the Secretary-General addressed to the President of the Security Council, 4 October 1994, UN Doc S/1994/1125, paras 146–48; Human Rights Watch, ‘World Report 2009: Events of 2008’ (HRW World Report 2009), http://www.hrw.org/world-report-2009.

12 This does not include individuals convicted of contempt. See Report on the Completion Strategy of the International Criminal Tribunal for Rwanda (as at 11 May 2012), 22 May 2012, UN Doc S/2012/349 (2012).

13 UNSC Res 1503(2003), 28 August 2003, UN Doc S/RES/1503(2003); UNSC Res 1534(2004), 26 March 2004, UN Doc S/RES/1534(2004).

14 UNSC Res 1966(2010), 22 December 2010, UN Doc S/RES/1966 (2010), para 3.

15 Interview notes with author.

16 UNSC Res 1503 (n 13).

17 ICTR, Rules of Procedure and Evidence (ICTR Rules), adopted pursuant to art 14 of the ICTR Statute (entered into force on 29 June l995), r 11 bis (A)(i), http://www.unictr.org/Legal/RulesofProcedureandEvidence/tabid/95/Default.aspx.

18 ibid r 11 bis (C).

19 ibid r 11 bis (D)(iv), (F), (G).

20 The first five requests made by the ICTR Prosecutor to refer cases to Rwanda were denied by the tribunal judges in 2008 (n 30 and accompanying text). Only in 2011 did the ICTR judges begin to grant prosecution requests for the referral of cases to Rwanda (n 31 and accompanying text).

21 Organic Law No 08/96 of 30 August 1996 on the Organization of Prosecutions for Offences constituting the Crime of Genocide or Crimes against Humanity committed since October 1, 1990 (1996 Genocide Law).

22 Organic Law No 40/2000 of 26 January 2001 Setting up Gacaca Jurisdictions and Organizing Prosecutions for Offences Constituting the Crime of Genocide or Crimes against Humanity Committed between October 1, 1990 and December 31, 1994 (2001 Gacaca Law). In 2004 a new law was adopted to render the gacaca process more efficient: Organic Law No 16/2004 of 19 June 2004 Establishing the Organization, Competence and Functioning of Gacaca Courts Charged with Prosecuting and Trying the Perpetrators of the Crime of Genocide and Other Crimes against Humanity Committed between October 1, 1990 and December 31, 1994 (2004 Gacaca Law).

23 The 1996 Genocide Law (n 21) classified genocide-related crimes into four categories, depending on the level of the perpetrator and gravity of the crime. Category One included the most serious crimes and most senior offenders, which continued to be sent to national courts even after the gacaca courts had been established. Some of the categories set by this law were redefined in later laws, but the principle that the most serious crimes are handled by national courts remained intact.

24 Phil Clark, ‘How Rwanda Judged its Genocide’, 2 May 2012, http://africaresearchinstitute.org/files/counterpoints/docs/How-Rwanda-judged-its-genocide-E6QODPW0KV.pdf. According to the Rwandan government, nearly two million genocide-related cases were adjudicated by the gacaca courts: see official website of the Republic of Rwanda, Ministry of Justice, ‘Closing Ceremony of Gacaca Courts’, 19 June 2012, http://www.minijust.gov.rw/MoJ/AX_Articles.aspx?id=1146&cidl=14. These figures can be reconciled if we consider that certain individuals may have been involved in more than one gacaca case (which is especially likely in genocide-related property cases, of which there were many before the gacaca courts).

25 On the number of genocide cases tried so far by national courts in Rwanda see Ingelaere, Bert, ‘The Gacaca Courts in Rwanda’ in Huyse, Luc and Salter, Mark (eds), Traditional Justice and Reconciliation after Violent Conflict (Stockholm, International IDEA 2008) 25, 45Google Scholar; Schabas, William A, ‘Genocide Trials and Gacaca Courts’ (2005) 3 Journal of International Criminal Justice 879, 888CrossRefGoogle Scholar; Human Rights Watch, ‘Law and Reality: Progress in Judicial Reform in Rwanda’, 25 July 2008, Annex 1, http://www.hrw.org/en/reports/2008/07/24/law-and-reality-0. On cases recently referred from abroad, see n 31.

26 See, eg, HRW World Report 2009 (n 11); Amnesty International, ‘Report 2009: The State of the World's Human Rights’, http://report2009.amnesty.org/; Jones, Nicholas A, The Courts of Genocide: Politics and the Rule of Law in Rwanda and Arusha (Routledge 2010) 100Google Scholar; Decision of the High Court of England and Wales in Brown (aka Vincent Bajinja) and Others v Government of Rwanda and Others [2009] EWHC 770 (Admin).

27 ‘Rwanda Wants to Detain Defendants, to Try Them and to Possess the Archives’, Hirondelle News Agency, 11 December 2007, http://www.hirondellenews.com/ictr-rwanda/407-collaboration-with-states/collaboration-with-states-rwanda/21296-en-en-111207-ictruno-rwanda-wants-to-detain-defendants-to-try-them-and-to-possess-thearchives1034710347; Stephanie Nieuwoudt, ‘Rwandan Tribunal under Pressure to Wind Up’, Institute for War & Peace Reporting, 29 January 2007, http://www.iwpr.net/report-news/rwandan-tribunal-under-pressure-wind.

28 Organic Law No 11/2007 of 16 March 2007 Concerning Transfer of Cases to the Republic of Rwanda from the ICTR and from Other States (Transfer Law).

29 Transfer Law, ibid arts 13–17. While the Transfer Law does not adopt all of the ICTR's due process norms, it covers the most important ones such as those concerning the rights of the accused.

30 ICTR, Prosecutor v Munyakazi, Decision on the Prosecution's Appeal against Decision on Referral under Rule 11 bis, ICTR-97-36-R11bis, Appeals Chamber, 8 October 2008; ICTR, Prosecutor v Kanyarukiga, Decision on the Prosecution's Appeal against Decision on Referral under Rule 11 bis, ICTR-02-78-R11bis, Appeals Chamber, 30 October 2008; ICTR, Prosecutor v Hategekimana, Decision on the Prosecution's Appeal against Decision on Referral under Rule 11 bis, ICTR-00-55B-R11bis, Appeals Chamber, 4 December 2008; ICTR, Prosecutor v Gatete, Decision on Prosecutor's Request for Referral to the Republic of Rwanda, ICTR-00-61-R11bis, Trial Chamber, 17 November 2008; ICTR, Prosecutor v Kayishema, Decision on Prosecutor's Request for Referral of Case to the Republic of Rwanda Appeals Chamber, ICTR-01-67-R11bis, Trial Chamber, 16 December 2008.

31 So far, eight cases have been transferred to Rwanda from the ICTR (these include two apprehended accused and six fugitives). See ICTR, Prosecutor v Ndimbati, Decision on the Prosecutor's Request for Referral of the Case to the Republic of Rwanda, ICTR-95-1F-R11 bis, Trial Chamber, 25 June 2011; ICTR, Uwinkindi v Prosecutor, Decision on Uwinkindi's Appeal against the Referral of His Case to Rwanda and Related Motions, ICTR-01-75-AR11 bis, Appeals Chamber, 16 December 2011; ICTR, Prosecutor v Kayishema, Decision on the Prosecutor's Request for Referral of the Case to the Republic of Rwanda, ICTR-01-67-R11 bis, Trial Chamber, 22 February 2012; ICTR, Prosecutor v Sikubwabo, Decision on the Prosecutor's Request for Referral of the Case to the Republic of Rwanda, ICTR-95-1D-R11 bis, Trial Chamber, 26 March 2012; ICTR, Prosecutor v Ntaganzwa, Decision on the Prosecutor's Request for Referral of the Case to the Republic of Rwanda, ICTR-96-9-R11 bis, Trial Chamber, 8 May 2012; ICTR, Prosecutor v Munyagishari, Decision on the Prosecutor's Request for Referral of the Case to the Republic of Rwanda, ICTR-05-89-R11 bis, Trial Chamber, 6 June 2012; ICTR, Prosecutor v Ryandikayo, Decision on the Prosecutor's Request for Referral of the Case to the Republic of Rwanda, ICTR-95-1E-R11 bis, Trial Chamber, 20 June 2012; ICTR, Munyarugarama v Prosecutor, Decision on Appeal against the Referral of Phénéas Munyarugarama's Case to Rwanda and Prosecution Motion to Strike, MICT-12-09-AR14, Appeals Chamber, 5 October 2012. Regarding referrals from third states, a recent example is Canada's deportation of Leon Mugesera to Rwanda to stand trial for genocide-related charges: see Mugesera v Ministry of Immigration and Others, Federal Court of Montréal (Québec), Judgment, Dossier IMM-9680-11, Ref 2012 CF 32, 11 January 2012. According to a senior Rwandan prosecutor, Rwanda has so far requested the extradition of over 100 suspected genocide perpetrators from the United States and European countries. Interview notes with author.

32 Transfer Law (n 28) arts 19–20. The Transfer Law also encourages cooperation between Rwanda and the ICTR: arts 18–19.

33 Interview notes with author.

34 The principle of command responsibility in relation to international crimes was recognised in Rwanda's 2004 Gacaca Law (n 22) art 53 (which applies both in gacaca and national courts). See also Law No 33bis/2003 of 6 September 2003 Repressing the Crime of Genocide, Crimes against Humanity and War Crimes, art 18. In this context see the ICTR finding in Hategekimana (n 30) para 12.

35 These include, eg, the right of the accused to legal counsel guaranteed in Rwanda's Constitution of 2003 and Code of Criminal Procedure as amended in the context of the 2003–04 national judicial reforms: see Constitution of the Republic of Rwanda, 26 May 2003, arts 10–44. See also Law No 13/2004 of 17 May 2004 concerning the Code of Criminal Procedure, published in the Official Journal of 30 July 2004, arts 64, 89, 96 (granting defendants the rights to legal counsel and to be brought before a judge following their arrest).

36 Further research in this area could perhaps reveal stronger links between the ICTR norms and Rwandan norms.

37 Interview notes with author.

38 The ICTR's referral procedure also encouraged Rwanda to amend some of its sentencing laws to meet the tribunal's conditions for referring cases to national jurisdictions. These legal developments are discussed below (at 2.4) in connection with the ICTR's impact on Rwandan sentencing practices.

39 Interview notes with author.

40 In 2005, the ICTR Prosecutor transferred to the Rwandan authorities about 35 investigation files (dossiers) of suspects who were investigated but never indicted by the ICTR: see Letter from the ICTR Prosecutor to the Executive Director of Human Rights Watch, 22 June 2009 (ICTR Letter), 2, http://www.hrw.org/sites/default/files/related_material/2009_06_Rwanda_Jallow_Response.pdf. Since these suspects have not been formally charged by the tribunal, it was within the Prosecutor's discretion to transfer their files to Rwanda without requiring the authorisation of ICTR judges.

41 Interview notes with author.

42 Several dozen members of the RPF were tried by military courts for crimes related to the war: see official website of the Republic of Rwanda, Ministry of Justice, ‘RPF Never Ignored to Punish Soldiers Guilty of War Crimes’ (RPF Never Ignored War Crimes), http://www.minijust.gov.rw/spip.php?article133; ICTR Letter (n 40); Human Rights Watch (n 25) 4 (with details of these trials in Annex 2, 103–09).

43 Interview notes with author. One interviewee, a human rights expert who focuses on Rwanda, suggested that the ICTR Prosecutor's deferral of this case to Rwanda was motivated by political considerations, in particular, his desire to mitigate the international criticism that the ICTR has been pursuing one-sided justice.

44 According to a Rwandan official, the military court heard the case in the civilian courthouse in Nyamirambo, Kigali, to accommodate the many people who were expected to attend the trial. Interview notes with author.

45 ICTR Letter (n 40) 2–3.

46 Human Rights Watch, ‘Rwanda: Tribunal Risks Supporting Victor's Justice’, 1 June 2009, http://www.hrw.org/en/news/2009/06/01/rwanda-tribunal-risks-supporting-victor-s-justice.

47 See, eg, Waldorf, Lars, ‘A Mere Pretense of Justice: Complementarity, Sham Trials, and Victor's Justice at the Rwanda Tribunal’ (2011) 33 Fordham International Law Journal 1221Google Scholar.

48 RPF Never Ignored War Crimes (n 42).

49 HRW World Report 2009 (n 11).

50 Whether such pressure is an effective means of encouraging national trials is a separate question.

51 Rome Statute of the International Criminal Court (ICC Statute) (entered into force 1 July 2002) 2187 UNTS 90, art 17.

52 1996 Genocide Law (n 21) art 14 (providing that Category One offenders were ‘liable to the death penalty’), art 5 (prohibiting reduction of sentences in Category One cases even when an accused has confessed). On the ‘categorisation’ of genocide crimes see discussion at n 23 above. The death penalty also applied in Rwanda to certain ordinary crimes such as murder, but the introduction of the death penalty in the 1996 Genocide Law is interesting when considered in light of Rwanda's practical moratorium on the death penalty since the early 1980s. See Schabas, William A, The Abolition of the Death Penalty in International Law (Cambridge University Press, 3rd edn 2002) 250CrossRefGoogle Scholar (explaining that the death penalty had not been applied in practice in Rwanda since the early 1980s, with the then Rwandan President commuting all outstanding death penalties in 1992).

53 See ‘Rwanda Executes Genocide Convicts’, BBC News, 24 April 1998, http://news.bbc.co.uk/1/hi/world/africa/82960.stm. Also see Amnesty International, ‘Rwanda: 22 People, Executed on 24 April’, 27 April 1998, http://www.amnesty.org/es/library/asset/AFR47/015/1998/es/285a93fd-f880-11dd-b378-7142bfbe1838/afr470151998en.pdf. This was the last time anyone was executed in Rwanda following the imposition of a death penalty.

54 Florence Mutesi, ‘Death Row: Over 1300 Survive Gallows’, New Times, http://www.newtimes.co.rw/news/views/article_print.php?i=1269&a=473&icon=Print (referred to in Human Rights Watch (n 25) fn 82 and accompanying text).

55 ICTR Rules (n 17) r 11 bis, as amended in 2004.

56 Organic Law No 31/2007 of 25 July 2007 Relating to the Abolition of the Death Penalty (abolishing all pending death penalties and commuting them to life sentences).

57 ICTR, Prosecutor v Munyakazi, Prosecution's Request for the Referral of the Case of Yussuf Munyakazi to Rwanda pursuant to Rule 11 bis of the Tribunal's Rules of Procedure and Evidence, ICTR-97-36, Trial Chamber, 7 September 2007. The Government of Rwanda was granted the status of amicus curiae by the ICTR for the purposes of these proceedings, and accordingly submitted to the ICTR its own arguments in support of the prosecution's referral requests.

58 Interview notes with author.

59 Interview notes with author.

60 Interview notes with author.

61 See, eg, Brown (n 26) para 47; Mugesera (n 31) paras 66–67.

62 Interview notes with author.

63 Interview notes with author.

64 Interview notes with author. The interviewee placed the execution in 1997, but he seems to have been referring to the public execution of the 22 genocide convicts which took place in Rwanda on 24 April 1998. See n 53 and accompanying text. For a discussion of Rwanda's inclination towards abolishing the death penalty irrespective of the ICTR's impact see Boctor, Audrey, ‘The Abolition of the Death Penalty in Rwanda’ (2009) 10 Human Rights Review 99, 105CrossRefGoogle Scholar.

65 See n 54 above.

66 Interview with Rwandan Justice Minister, August 2012. Interview notes with author.

67 See n 54 above.

68 ibid.

69 Interview notes with author. Indeed, during the meeting on the setting up of the ICTR, Rwanda's representative to the UN stressed that the tribunal's exclusion of the death penalty, despite its applicability in Rwanda, ‘is not conducive to national reconciliation in Rwanda’: see UN Doc S/P.V.3453, 16.

70 See n 52.

71 2001 Gacaca Law (n 22) art 68 (which requires judges hearing Category One cases to choose between life imprisonment and the death penalty when the conviction was not based on a confession, and to impose between 25 years' imprisonment and a life sentence when the conviction was based on a confession). See also 2004 Gacaca Law (n 22) art 72 (which retains the sentencing rule for convictions not based on a confession in Category One cases, but reduces confession-based sentences in Category One cases to between 25 and 30 years' imprisonment).

72 Amnesty International, ‘Rwanda: Gacaca: A Question of Justice’, 17 December 2002, 17, http://www.amnesty.org/en/library/info/AFR47/007/2002 (referring to statistics compiled by the Rwandan NGO Liprodhor, indicating that the percentage of cases that resulted in the death penalty out of all genocide cases in Rwanda was 30.8 per cent in 1997, 12.8 per cent in 1998, 11 per cent in 1999, 6.6 per cent in 2000, 8.4 per cent in 2001 and only 3.4 per cent in 2002).

73 ibid. The report provides an annual breakdown of all sentences imposed in genocide cases in Rwanda between 1997 and mid-2002 and identifies the following trends: (i) a gradual decline in the percentage of death penalties (from 30.8 per cent in 1997 to 3.4 per cent in 2002); (ii) a gradual decline in the percentage of life imprisonment sentences (from 32.4 in 1997 to 20.5 per cent in 2002); (iii) an increase in fixed prison terms (from 27.7 in 1997 to 47.2 per cent in 2002); (iv) the acquittal rate almost tripled (from 8.9 in 1997 to 24.8 per cent in 2002).

74 Drumbl, Mark A, Atrocity, Punishment, and International Law (Cambridge University Press 2007) 76CrossRefGoogle Scholar. It is noted that under Rwandan law confessions in genocide cases almost automatically lead to reductions in sentence. Drumbl also notes that the ‘Amnesty International statistics, however comprehensive, do not illustrate the factors the domestic courts consider in sentencing that transcend the guidelines provided by the Organic Law. The statistics are silent as to how the Rwanda genocide courts exercise their limited discretion with regard to punishing Category 2 and 3 offenders. Nor do they reveal the ways in which the Rwandan courts at times mold the statutory framework to suit unusual circumstances; or how, through the language, tone, and texture of their judgments, they give voice to certain penological goals’.

75 Karimunda, Aimé Muyoboke, ‘The Death Penalty in Rwanda: Surrounding Politics and the ICTR's Battle of Abolition’ in Futamura, Madoka and Bernaz, Nadia (eds), The Politics of the Death Penalty in Countries in Transition (Routledge, forthcoming August 2013)Google Scholar (draft with author).

76 See, eg, Kanyarukiga (n 30) 15.

77 Organic Law No 66/2008 of 21 November 2008, amending Organic Law No 31/2007 of 25 July 2007 Relating to the Abolition of the Death Penalty (excluding the application of the penalty of life imprisonment in isolation in cases transferred from the ICTR and third states).

78 Life Imprisonment with Special Provisions Law 2012 (Rwanda). See also Edwin Musoni, ‘Parliament Expunges Solitary Confinement’, AllAfrica News, 3 April 2010, http://allafrica.com/stories/201004050423.html (noting that the Rwandan parliament has approved the abolition of life imprisonment in isolation).

79 ICTR, Prosecutor v Uwinkindi, Decision on the Prosecutor's Request for Referral of the Case to the Republic of Rwanda, ICTR-01-75-R11 bis, Trial Chamber, 28 June 2011, para 51 (noting that, with regard to punishments, ‘the ambiguities which existed … have been adequately addressed by Rwanda’).

80 Interview notes with author.

81 These possibilities are provided, respectively, under ICTR Rules (n 17) rr 4, 11 bis and 103(A). The possibility of enforcing sentences in Rwanda is also provided for under the Statute of the International Criminal Court for Rwanda (ICTR Statute), annexed to UNSC Res 955(1994) (n 3) art 26.

82 Sigall Horovitz, ‘Rwanda: International and National Responses to the Mass Atrocities and their Interaction’, DOMAC, September 2010, DOMAC/6, 58–60, http://www.domac.is/media/veldu-flokk/DOMAC6---Rwanda.pdf.

83 Interview notes with author.

84 Senior ICTR officials spoke about the financial challenges faced by the tribunal in connection with its capacity-building efforts in Rwanda. Even after UNSC Res 1503 (n 13) was issued in 2003, the UN refused to fund these initiatives. Consequently, the ICTR established a voluntary trust fund to finance its capacity-building activities in Rwanda. The EU is a major contributor to the ICTR Trust Fund, and also provides direct funding to ICTR capacity-building projects in Rwanda. Interview notes with author.

85 A senior ICTR official explained that eventually the ICTR and Rwanda managed to build a relationship which allows capacity-building projects to take place even when they are not related to the referral of cases to Rwanda. Interview notes with author.

86 Interview notes with author. The training was requested by the Rwandan Prosecutor General, who wanted to improve the indictment format used in Rwanda (which contained only a summary of the charges, without informing the accused of his rights).

87 Interview notes with author. However, he added that the ICTR as an institution has not contributed to the development of judicial capacity in Rwanda. Rather, such contribution was achieved through sporadic personal initiatives of certain ICTR officials.

88 Interview notes with author.

89 Munyakazi (n 30) para 37; Kanyarukiga (n 30) para 26. This finding helped to support the tribunal's conclusion that fair trials were not available in Rwanda, one of the grounds on which it ultimately based its refusal to transfer cases to Rwanda. The other ground for this refusal, as discussed earlier, was the possibility that a life sentence in isolation would be imposed following conviction in transferred cases: see n 76 above and accompanying text. It is noted that the tribunal also found that potential defence witnesses may be reluctant to testify in Rwanda out of fear of being subjected to gacaca trials or charged with the crime of ‘genocide ideology’. This also encouraged reform of the legal system in Rwanda. However, these developments started to take place after I concluded my research for this article, and will therefore not be discussed here.

90 ICTR Press Release, ‘Tribunal Trains Rwanda Witness Protection Officers’, ICTR/INFO-9-2-623.EN', 16 November 2009, http://www.unictr.org/News/PressReleases/tabid/64/Default.aspx.

91 Interview notes with author. One of the interviewees stressed that working at the tribunal has enhanced his knowledge of international law, his understanding of the crimes which were committed in Rwanda, and the ability to be objective and think independently. These skills, he believed, would make him a good practitioner in Rwanda.

92 Interview notes with author.

93 Interview notes with author. The Prosecutor explained that the associate investigators were qualified attorneys back in Rwanda. At the ICTR they assist with crime analysis. Their fluency in Kinyarwanda is highly valued in light of the prosecution's limited language resources. These employees could return to their local system to work, which could be a way of transferring skills to Rwanda. However, some of them may end up being employed by other ICTs.

94 Interview notes with author. A Rwandan working at the ICTR also confirmed that the ICTR had not wanted to employ Rwandans in the past, based on its belief that the animosity between Hutus and Tutsis would influence the quality of their work and jeopardise their objectivity. Interview notes with author.

95 Interview notes with author.

96 Interview notes with author. It is noted that there is nothing in the ICTR Statute (n 81) that precludes Rwandan judges from serving with the ICTR.

97 Interview notes with author.

98 Interview notes with author.

99 ICTR Statute (n 81) art 26; ICTR Rules (n 17) r 103(A).

100 Interview notes with author. The interviewee stressed that the Netherlands rather than the ICTR paid for these improvements; this is in contrast to the situation in other African countries that received ICTR convicts, such as Mali and Benin, where the ICTR financially supports prison infrastructure development.

101 An ICTR official explained that the tribunal must be convinced that Rwanda can guarantee the safety of its prisoners before it transfers them to Rwanda. Interview notes with author.

102 Interview notes with author. The ICTR official noted that this court renovation project started as early as 1997, and was eventually completed years later with EU funding. See also http://www.delrwa.ec.europa.eu/en/whatsnew/Cour-Minijust-en.pdf. The possibility of holding ICTR sessions away from the seat of the tribunal is provided for under ICTR Rules (n 17) r 4.

103 The RUF's ‘trademark’ was hacking off limbs with machetes. RUF fighters would invade a village and ask the inhabitants to choose between ‘long sleeves’ (having their hands cut off) and ‘short sleeves’ (having their arms cut off above the elbow). Other notorious crimes committed during the war included opening the abdomens of pregnant women in order to settle bets by rebels concerning the sex of the foetus.

104 Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, 7 July 1999 (Lomé Peace Agreement), http://www.sierra-leone.org/lomeaccord.html.

105 ibid art IX.

106 Michael P Scharf, ‘The Special Court for Sierra Leone’, ASIL Insight, October 2000, http://www.asil.org/insigh53.cfm, para 3; Human Rights Watch, ‘Sierra Leone Rebels Violating Peace Accord’, 30 August 1999, http://199.173.149.120/press/1999/oct/sierra1027.htm.

107 UNSC, Letter dated 12 June 2000 from President of Sierra Leone to the Secretary-General, 10 August 2000, UN Doc S/2000/786.

108 Special Court Agreement (n 4). It is noted that the Special Court was set up to prosecute not only members of the RUF, as requested by President Kabbah, but also members of other factions, including the pro-government militia CDF.

109 Charles Taylor was indicted by the SCSL on 7 March 2003, while still sitting as the head of state of Liberia, for his alleged support and assistance to the AFRC and RUF forces in carrying out their mission. Almost three years later, on 29 March 2006 Taylor was arrested in Nigeria and transferred to Liberia, from where he was immediately surrendered to the custody of the SCSL.

110 Sam Hinga Norman, the most senior defendant in the CDF case, died from an illness after the closing arguments were made in his trial but before the chamber reached a judgment. The proceedings against him were terminated following his death in May 2007 and no judgment was issued in his case: see SCSL, Prosecutor v Sam Hinga Norman, Decision on Registrar's Submission of Evidence of Death of Accused Samuel Hinga Norman and Consequential Issues, SCSL-004-14-T, 21 May 2007.

111 Two of the original indictees died before their trials started, and one of them, AFRC leader Johnny Paul Koroma, was never apprehended. These ten prosecutions do not include contempt of court proceedings.

112 Charles Taylor was convicted by the SCSL Trial Chamber on 21 April 2012, and sentenced to 50 years' imprisonment on 30 May 2012. The appellate proceedings in his case are expected to conclude by September 2013: see Statement by the President of the Security Council, 9 October 2012, UN Doc S/PRST/2012/21 (2012). It is noted that on 20 June 2006, following a request by the UN Security Council, the proceedings against Charles Taylor were transferred for security reasons from Sierra Leone to The Hague, Netherlands. All the other SCSL trials were conducted in Freetown, Sierra Leone. See UNSC Res 1688(2006), 16 June 2006, UN Doc S/RES/1688 (2006).

113 Statute of the Special Court for Sierra Leone (SCSL Statute) (entered into force 12 April 2002) 2178 UNTS 139, art 5, annexed to the Special Court Agreement (n 4), http://www.scsl.org/LinkClick.aspx?fileticket=uClnd1MJeEw%3D&.

114 ibid art 14(2).

115 The high-level perpetrators who were arrested in 2000 by the national authorities in connection with these proceedings were either transferred for trial to the SCSL (eg Foday Sankoh), or released before the national trials commenced (eg Mike Lamin).

116 Lomé Peace Agreement (n 104) art IX.

117 ibid art XXVI(1). The TRC submitted its final report to the Sierra Leonean government in October 2004. The report recommended, inter alia, increasing human rights protection, strengthening democracy and the rule of law, improving good governance and establishing a reparations fund for war victims: see Final Report of the Sierra Leone Truth and Reconciliation Commission, October 2004 (TRC Report), http://www.trcsierraleone.org.

118 On the lack of implementation of some of the TRC's recommendations see, eg, HRW World Report 2009 (n 11); Amnesty International (n 26). On the TRC's difficulties in establishing the truth about the atrocities see, eg, Nkansah, Lydia Apori, ‘Restorative Justice in Transitional Sierra Leone’ (2011) 1 Journal of Public Administration and Governance 157, 168–69CrossRefGoogle Scholar.

119 According to various reports, perpetrators who committed some of the worst atrocities evaded justice. See, eg, Michelle Staggs, ‘Second Interim Report on the Special Court for Sierra Leone – Bringing Justice an Ensuring Lasting Peace: Some Reflections on the Trial Phase at the Special Court for Sierra Leone’, University of California Berkeley War Crimes Study Center, March 2006, 135, http://socrates.berkeley.edu/~warcrime/documents/SecondInterimReport_003.pdf (naming four fairly senior mid-level perpetrators who escaped prosecution: former RUF spokesman Gibril Massaquoi, former CDF National Deputy Director of Operations Albert Nallo, and AFRC commanders Staf Al Haji (also known as Al Haji Boyoh) and Commander Savage.

120 Interview notes with author. Another senior member of the SCSL suggested that the court's first Prosecutor refrained from charging the accused with national crimes because he assumed that the Lomé Amnesty would require the SCSL judges to cancel the charges. At the same time, however, the interviewee noted that it would have been useful to have charged some of the SCSL's defendants for the national crime of setting fire to property (under the SCSL Statute (n 113) art 5), as eventually their acts of burning became unpunishable. Interview notes with author.

121 A valuable source of information about these trials was Clare da Silva, a Canadian lawyer who provided pro bono assistance to the defendants over a number of years.

122 I address this case in further detail in Sigall Horovitz, ‘Sierra Leone: Interaction between International and National Responses to the Mass Atrocities’, DOMAC, December 2009, DOMAC/3, 26-28, http://www.domac.is/media/domac/DOMAC3-SH-corr..pdf.

123 The accused were all arrested between May and November 2000. The case was committed to the High Court in Freetown on 29 May 2002. The trial started on 7 June 2005 and the hearings lasted until December 2005.

124 They were convicted on 15 counts of conspiracy to commit murder and received a sentence of ten years for each count to be served concurrently.

125 Interview notes with author.

126 I thank Clare da Silva for this information.

127 It was stressed by Clare da Silva that the accused first obtained legal representation at around the start of the trial in June 2005, about five years after they were arrested in 2000. Also, the sentences were to start from the date on which the case was committed to the High Court (two years after the accused were arrested).

128 They were convicted on ten counts of conspiracy to commit murder, and sentenced to ten years for each count to be served concurrently, starting from the date of conviction (six years after the accused were arrested and four years after their case was committed to the High Court). I address this case in further detail in Horovitz (n 122) 28–29.

129 Based on an email from Clare de Silva dated 19 April 2012. According to Clare da Silva, there seems to have been little political interest in moving this trial forward.

130 Clare da Silva explained that while the arrests were made in 2000, and the case committed to the High Court in Freetown on 29 May 2002, charges were not made known to the accused until several years later.

131 Interview notes with author.

132 Interview notes with author.

133 Interview notes with author.

134 Interview notes with author.

135 Interview notes with author. It is noted that Sierra Leone has ratified the ICC Statute; however, as Sierra Leone is a dualist country, the ICC Statute must be incorporated into its national law before it can be applied nationally.

136 While this norm internalisation is encouraged not by the SCSL directly but rather by its staff members acting in their personal capacity, it could still be considered to be an effect of the SCSL in that it was made possible by the court's presence in Sierra Leone. Further, one of the advocates of this norm internalisation is a Sierra Leonean, whose increased awareness of the importance of domesticating international criminal norms may have stemmed from his work at the SCSL.

137 Interview notes with author.

138 However, at the time of writing it is too early to tell whether the advocacy efforts of the SCSL prosecutors will in fact succeed.

139 UNSC Res 1315 (n 4) preamble, para 11 (‘Noting further the negative impact of the security situation on the administration of justice in Sierra Leone and the pressing need for international cooperation to assist in strengthening the judicial system of Sierra Leone’).

140 According to a Sierra Leone Supreme Court judge, national discussions on prosecuting pre-Lomé crimes never took place in Sierra Leone. Interview notes with author.

141 SCSL, Prosecutor v Morris Kallon, Brima Bazzy Kamara, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), 13 March 2004.

142 Interview notes with author. It is noted that only the top-level perpetrators are prosecuted by the SCSL while the mid- and low-level perpetrators who had been involved in the abduction were never prosecuted.

143 Interview notes with author. Interestingly, the Secretary-General's report stated: ‘The lifespan of the Special Court … will be determined by a subsequent agreement between the parties upon the completion of its judicial activities, an indication of the capacity acquired by the local courts to assume the prosecution of the remaining cases, or the unavailability of resources’ (emphasis added). See UNSC Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, 4 October 2000, UN Doc S/2000/915, para 28.

144 See nn 17–19 and accompanying text.

145 In October 1998 24 persons were publicly executed after a military court convicted and sentenced them to death on charges of treason. Although death sentences were imposed in Sierra Leone after this trial, none were carried out. As of the end of 2008, Amnesty International reported that 13 persons were on death row: see Amnesty International (n 26). Human Rights Watch reported that 12 individuals were on death row in early 2009: see HRW World Report 2009 (n 11).

146 In 2004 the High Court in Freetown convicted and sentenced to death ten individuals in connection with a 2003 coup attempt. In 2008, the Sierra Leonean Court of Appeals overturned the convictions, revoked the death penalties and acquitted all the defendants: Amnesty International (n 26); Human Rights Watch (n 11). Regarding the 2004 conviction and death penalties see Amnesty International, ‘Sierra Leone: Amnesty International Expresses Dismay at Ten Death Sentences for Treason’, 21 December 2004, http://www.amnesty.org/en/library/info/AFR51/009/2004/en. The imposition of the death penalty in 2004 came only weeks after the TRC recommended its abolition: see TRC Report (n 117), Vol 2, Ch 3, para 54. In 2008, the Sierra Leonean Court of Appeals overturned the convictions, revoked the death penalties and acquitted all the defendants: ibid.

147 Amnesty International, ibid.

148 Interview notes with author.

149 Mohamed Fofanah, ‘Death Penalty – Sierra Leone: Successful Appeal Strengthens Case For Abolition’, IPS News, 12 December 2008, http://ipsnews.net/news.asp?idnews=45088.

150 TRC Report (n 117) Vol 2, Ch 3, para 54.

151 Amnesty International (n 26).

152 See, eg, UNSC Department of Public Information (News and Media Division), ‘Special Court for Sierra Leone Faces Funding Crisis, as Charles Taylor Trial Gets Underway, Security Council Told Today in Briefing by Court's Senior Officials’, 8 June 2007, UN Doc SC/9037.

153 ibid.

154 SCSL, ‘Special Court Launches Witness Protection Training Programme’, 5 November 2009, http://www.sc-sl.org/LinkClick.aspx?fileticket=kJu0OgoLU2E%3d&tabid=53.

155 Interview notes with author. The official added that since such activities were not budgeted for in advance, the SCSL had to raise funds for this initiative.

156 Interview notes with author.

157 Interview notes with author.

158 Interview notes with author.

159 Interview notes with author.

160 Interview notes with author.

161 Interview notes with author.

162 Interview notes with author.

163 Interview notes with author.

164 The official explained that while there is no political will to hold national trials for past atrocities, a war crimes office may be useful in the event of future incidents of atrocity. Interview notes with author.

165 A Sierra Leonean lawyer, who was involved with the SCSL, explained that the defence teams at the SCSL were initially hesitant to employ Sierra Leoneans. However, when the Registry allocated resources for this purpose (out of a special EU fund) the defence teams began to recruit young Sierra Leonean lawyers as ‘Junior Professional Consultants’. This was done to build national capacity, and also to reinforce the defence teams. From 2007, the lawyer added, the prosecution also began to admit national lawyers as Junior Professional Consultants. Interview notes with author.

166 Tom Perriello and Marieke Wierda, ‘Prosecutions Case Studies Series: The Special Court for Sierra Leone Under Scrutiny’, International Center for Transitional Justice, March 2006, http://www.ictj.org/static/Prosecutions/Sierra.study.pdf.

167 Interview notes with author.

168 Interview notes with author.

169 Interview notes with author.

170 See, eg, Antonio Cassese, ‘Report on the Special Court for Sierra Leone’, 12 December 2006, paras 270 and 30, http://www.sc-sl.org/LinkClick.aspx?fileticket=VTDHyrHasLc=&tabid=176 (referring to the SCSL outreach programme as ‘the crown jewel of the Special Court’, and noting that the programme ‘has proved to be exemplary and should constitute a model for future ICTs’); Perriello and Wierda (n 166) (‘[t]he Special Court for Sierra Leone boasts the strongest outreach program of any tribunal to date’).

171 The SCSL's Outreach Section keeps the local population informed about the SCSL's missions and activities, thus enhancing the court's national relevance and legitimacy. For more details see Horovitz, Sigall, ‘Transitional Criminal Justice in Sierra Leone’ in Roht-Arriaza, Naomi and Mariezcurrena, Javier (eds), Beyond Truth versus Justice: Transitional Justice in the Twenty-First Century (Cambridge University Press 2006) 43, 58–59Google Scholar.

172 It is noted that Sierra Leone also took measures to keep a distance from the SCSL. For example, in the early years of the SCSL, the government either failed to appoint Sierra Leoneans to several of the key SCSL positions that were allocated to government appointees, or appointed Sierra Leoneans who live abroad and thus are less likely to seek employment with the local judiciary: see Alejandro Chehtman, ‘Developing Local Capacity for War Crimes Trials: Insights from BiH, Sierra Leone and Colombia’, DOMAC, June 2011, DOMAC/9, fn 73 and accompanying text, http://www.domac.is/media/domac/Domac-9-AC-Final-Paper.pdf.

173 Interview notes with author.

174 Sigall Horovitz, ‘DR Congo: Interaction between International and National Responses to the Mass Atrocities’, DOMAC, February 2012, DOMAC/14, http://www.domac.is/media/domac/DRC-DOMAC-14-SH.pdf; Sigall Horovitz, ‘Uganda: Interaction between International and National Responses to the Mass Atrocities’, DOMAC, January 2013, DOMAC/18, http://www.domac.is/media/domac-skjol/DOMAC-18-Uganda.pdf; Sigall Horovitz, ‘Sudan: Interaction between International and National Responses to the Mass Atrocities in Darfur’, DOMAC, April 2013, DOMAC/19, http://www.domac.is/media/domac/DOMAC-19--Sudan--SH.pdf. However, there is evidence that the ICC has had some success in encouraging national atrocity-related proceedings in Colombia: see Alejandro Chehtman, ‘The Impact of the ICC on Colombia: Positive Complementarity on Trial’, DOMAC, October 2011, DOMAC/17, http://www.domac.is/media/domac-skjol/Domac-17-AC.pdf.

175 Ironically, following these improvements, Rwanda's prison facilities have been deemed to conform to international norms by none other than the SCSL, which has preferred to send its own convicts to serve their sentences in Rwanda over sending them to prisons in West Africa or elsewhere.

176 See n 6.