Crimes Against Humanity—ICTR Sentences Bisengimana to 15 Years

The International Criminal Tribunal for Rwanda (ICTR) announced today that the Trial Chamber II has imposed a sentence of 15 years in prison in the case against Paul Bisengimana, former Bourgmestre of Gikoro Commune, Kigali‑Rural Prefecture.^[1] Last January, we discussed the oral arguments at the sentencing hearing for Mr. Bisengimana. Mr. Bisengimana was indicted originally in July 2000 on 12 counts of genocide, war crimes, and crimes against humanity under the ICTR Statute.^[2]

It is worth noting that the 15‑year sentence exceeded the range submitted to the Trial Chamber under the terms of the plea agreement.^[3] Under Articles 22 and 23 of the ICTR Statute, the Trial Chamber is solely responsible for imposing post‑conviction penalties and may consider both mitigating and aggravating factors in determining the sentence. The Trial Chamber is not bound by the terms of an agreement between the Tribunal and the defendant.

In imposing the 15‑year sentence, the Tribunal considered mitigating factors including Mr. Bisengimina’s acceptance of responsibility and “publicly expressed remorse, his individual and family situation in the sense it offers him chances of rehabilitation, his good character prior to the events, his lack of prior criminal conviction, his good conduct in detention, and his age and ill health.”^[4] They also considered the aggravating factors including “the gravity of the crimes committed the official position of the accused as Bourgmestre of Gikoro commune during the events, and the fact that he was an educated person.”^[5] Finally, the Trial Chamber today rejected Mr. Bisengimana’s account of his responsibility for some of the acts alleged and instead drew its own conclusions without the benefit of a trial.

If the defense chooses to appeal the sentence, it will no doubt analyze the Trial Chamber’s conclusions as to Mr. Bisengimana’s responsibility for any suggestion that it relied on factual statements made in the judgment in the case against Laurant Semanza.

In 2004, the defense submitted an urgent motion to the Trial Chamber, asserting that Mr. Bisengimana’s rights as a defendant had been compromised by a judgment in another case and that his due process rights before Trial Chamber were at risk. The argument was based on the fact that Mr. Bisengimana was directly implicated in criminal activities for which Laurent Semanza was convicted in 2003.^[6]

In granting the motion, the Trial Chamber acknowledged Mr. Bisengimana’s innocence before conviction and made assurances of a fair and impartial trial.^[7] If the defense chooses to appeal the sentence handed down today, this is a likely ground for argument that the sentence was the result of harmful prejudice.

Sentencing
Under Article 22 of the ICTR Statute, a single Trial Chamber sits as the trier of fact and pronounces the judgment and the sentence based on a single hearing of the evidence from both sides.^[8] This practice, also following in the U.N. International Criminal Tribunal for the Former Yugoslavia (ICTY), is radically different from the practice in U.S. federal criminal courts of holding “bifurcated” (jury) trials in which the determination of guilt or innocence and the determination of sentence are made in separate proceedings, each under specific rules of procedure and evidence.^[9]

Even though a criminal defendant has the right, under Article 20 of the ICTR Statute, not to testify against himself at trial, exercising that right denies him the opportunity to submit mitigating evidence for use in sentencing—for example, remorse—without making statements that could be seen as incriminating in determining guilt or innocence.^[10] This Catch‑22 situation undermines the fairness of the proceedings and can pose intractable strategic dilemmas for defense counsel. When a defendant enters a plea of guilty, the Trial Chamber bases its decision on the indictment and on the statements entered by each side without hearing other evidence.

This practice will not be followed in trial practice at the new International Criminal Court (ICC). Under Article 76 of the Rome Statute and Rule 143 of the Rules of Procedure and Evidence, the Trial Chamber is required to assess post‑conviction penalties in a distinct phase of the trial.^[11] At the request of either party, or on its own initiative, the Chamber may hold separate hearings to receive supplemental evidence that either was not admissible at trial or is relevant specifically to sentencing.

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[1] Bisengimana Sentenced to 15 Years Imprisonment [hereinafter Press Release], ICTR Press Release ICTR/INFO-9-2-474.EN, Apr. 14, 2006. The actual sentencing document was not publicly available at the time of this post.
[2] Prosecutor v. Bisengimana, Indictment, ICTR‑2000‑60‑I, July 10, 2000. The indictment was amended between the Trial Chamber’s rejection of the first plea agreement on Nov. 17, 2005 and its acceptance of the second agreement on Dec. 7, 2005. The amended indictment was not available from the ICTR website at the time of this post. See also Bisengimana Pleads Guilty as Trial Chamber Dismisses Other Charges, ICTR Press Release ICTR/INFO-9-2-458.EN, Dec. 7, 2006.
[3] Press Release supra note 1. “During the Pre-sentencing Hearing on 19 January 2006, the Defence pleaded for a sentence of 12 years imprisonment whereas the Prosecutor pleaded for a sentence of not less than 14 years in prison.”
[4] Press Release supra note 1.
[5] Press Release supra note 1.
[6] Id. See also Prosecutor v. Semanza, Judgement and Sentence, IT‑97‑20‑T, May 15, 2003.
[7] Decision on Defense Urgent Motion to Acknowledge Violation of the Accused’s Rights, Prosecutor v. Bisengimana, IT‑2001‑60‑I, Aug. 20, 2004. The Decision notes that Mr. Bisengimana was named 41 times in the Semanza Judgement and Sentence.
[8] ICTR Statute, art. 22.
[9] Fed. R. Crim. Proc. 23 (Jury or Nonjury Trial) and 32 (Sentencing and Judgment).
[10] ICTR Statute, art. 20(4)(g).
[11] Rome Statute, art. 76. See also ICC Rules of Procedure and Evidence 143.

Legal 500

McNabb Associates is pleased to announce the inclusion of the firm in the 2006-2007 Legal 500 Europe, Middle East, and Africa directory. The Legal 500 is considered the definitive guide to law firms in over 70 countries. Inclusion in the directory is based on peer review recommendations of practice area and country. McNabb Associates has been selected for inclusion for its Milan office’s expertise “offered in international extradition cases, mainly connected to money laundering and mail and bank fraud allegations originating from the US.”

International Crimes—UN Commissions Hariri Tribunal

The United Nations Security Council has unanimously passed Resolution 1664 (2006), calling for the establishment of a new UN‑backed international criminal tribunal for Lebanon.^[1] The tribunal will be dedicated solely to investigating the assassination of Lebanese Prime Minister Rafiq Hariri and to conducting the criminal trials of individuals accused of participating in the attack that killed Mr. Hariri and 22 other people in February 2005.^[2]

In a March 21, 2006 report to the Security Council, Secretary‑General Kofi Annan recommended that the tribunal be set up as a hybrid court, incorporating both international and Lebanese law.^[3] The new tribunal would most likely be modeled after the other UN-established hybrid courts in Sierra Leone, Cambodia, and East Timor. However, the Secretary‑General did not recommend locating the tribunal in Lebanon, citing “concerns of security, perceptions of objectivity,” and other factors.^[4] Perhaps after taking on the Charles Taylor trial for the Special Court of Sierra Leone, The Hague will be ready to host the Hariri Tribunal as well.

UN Resolution 1664 does not set a commencement date for the new tribunal, but keys all judicial activities to the results of investigations by the United Nations International Independent Investigation Commission (UNIIIC). The UNIIIC was commissioned in April 2005 to assist with Lebanese investigators in this matter specifically.^[5] Last December, we noted the appointment of former International Criminal Court (ICC) Deputy Prosecutor Serge Brammertz to head up the UN investigation into the death of Prime Minister Hariri.

Crimes of Terrorism
UN Resolution 1664 characterizes the assassination as an act of “terrorist bombing” and a “terrorist crime.”^[6] None of the existing international criminal tribunals include acts of terrorism in their statutory laws. In the Rome Statute of the ICC, so‑called “treaty crimes” are not included under the ICC’s jurisdictional umbrella, but the possibility exists that the Statute could be amended in the future to include the prosecution of terrorism and transnational drug crimes. A more remote possibility for trying a terrorist‑type crime in an international criminal tribunal would probably be under Article 8(2) of the Rome Statute, if the victims are UN personnel.^[7]

In Article 123, the Rome Statute specifies that amendments to the Statute will not be considered before a review conference to be held 7 years after the entry into force of the Statute.^[8] The Final Act of the Rome Conference, adopted in 2002, includes a direct recommendation that a review conference be convened to consider the inclusion of crimes of terrorism and drug crimes.^[9] Therefore, individuals will not be tried for alleged acts of terrorism at the ICC unless the Statute is amended on or after July 1, 2009 to include such a crime. If the Hariri Tribunal includes the crime of terrorism in its statute, it will be the first international criminal tribunal to do so.

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[1] Security Council Requests Establishment of International Tribunal For Killing of Former Lebanese Prime Minister Hariri [hereinafter UN], UN Press Release SC/8677, Mar. 29, 2006. See also Lebanon: UN Adopts Resolution 1664 for International Tribunal, Ya Libnan, Mar. 30, 2006.
[2] UN supra note 1.
[3] UN supra note 1. See also Report of the Secretary-General Pursuant to Paragraph 6 of Resolution 1644 (2005), S/2006/174, Mar. 21, 2006.
[4] UN supra note 1.
[5] United Nations Security Council Resolution 1595, SC/1595 (2005).
[6] United Nations Security Council Resolution 1664, SC/1664 (2006).
[7] Rome Statute, art. 8(2)(e)(iii), 8(2)(b)(vii), and 8(2)(3)(iii).
[8] Rome Statute, art. 123.
[9] UN Doc. A/CONF.183/C.1/L.76/Add.14, at 8.

ICTY—4 Referred Out, 2 Expected In

This week, the International Criminal Tribunal for the Former Yugoslavia (ICTY) approved the referral of a 4‑defendant case from the international tribunal to an international criminal court in the former Yugoslavia.^[1] Meanwhile, the April 30 deadline for Serbia‑Montenegro to turn over fugitive indictees Ratko Mladic and Radovan Karadzic to the ICTY before incurring sanctions from the European Union is approaching quickly.^[2]

Transfer to a National Court
This is the third referral of an active case from the ICTY to a national court. Two single‑defendant trials were referred to Bosnian courts and one 2‑defendant trial was referred to Croatian courts in 2005.^[3] A second 2‑defendant trial has been referred and is pending appeal.^[4]

A referral is one of the methods designed to help the ICTY execute its proposed completion strategy. The strategy requires the ICTY to complete all trials by 2008 and appeals by 2010.^[5] We have noted previously that former ICTY President Theodor Meron already has alerted the United Nations Security Council to the probability that Tribunal business will not be concluded on schedule.

Needless to say, if the two big fish—Mladic and Karadzic—are landed this year, there will be no objections to keeping the Tribunal open long enough to complete these important trials. The motivation for all parties—victims, supporters, the United Nations—to hear the evidence regarding the roles of these two men has no doubt increased following the disappointing and untimely death of superstar defendant Slobodan Milosevic in the middle of his trial for genocide and other international crimes.

The authority to refer cases from the ICTY to national courts is implicit in Article 9 of the ICTY Statute.^[6] The basis for making the referral is specified in Rule 11bis in the recently amended Rules of Procedure and Evidence. This rule permits a special Referral Bench to adjudicate the “transfer of lower or mid-level accused to national jurisdictions”^[7] The Referral Bench, selected from among the assigned Trial Chamber judges, presides over a Rule 11bis hearing and presents its reasoning in a written decision. Parties to the referral may make an interlocutory‑type appeal if they are not happy with the referral decision.

Prosecutor v. Mejakic et al
Three of the defendants in Mejakic et al served as lower‑level officials at the Bosnian camps at Omarska and Keraterm during the 1990s. One of the defendants had no official role at the camps at all, but did have authority to enter and leave the camp at will.

All are charged with various acts constituting war crimes and crimes against humanity. The indictment alleges that they each committed the acts against Bosnian Muslims, Croats, and other non‑Serb citizens under their authority.^[8]

Mladic and Karadzic
At the conclusion of the ICTY Chief Prosecutor’s visit to Belgrade last month, Serbian Prime Minister Vojislav Kostunica stated that his country was close to meeting the demands of the ICTY and the European Union (EU) by handing over indicted former Serb military commander Ratko Mladic. Today, Mr. Kostunica reaffirmed that Serbia is making progress toward an arrest and transfer.^[9] During a break from meeting with French President Jacques Chirac, Kostunica told reporters that “[w]e are now very, very close to responding to this obligation so as to be able to accelerate our path towards Europe"^[10]

In previous posts, we noted that EU has offered a 30‑day extension to its previous deadline before it permanently suspends work on the pre‑ascension Stabilisation and Association Agreement (SAA) with Serbia‑Montenegro. Last week, Darko Mladic, son of Ratko vowed not to bow to international or Serb pressure, saying “I will not negotiate about my father’s surrender. Also, I have no intention of saying when and where I last saw him.” This week, he refused to comment on rumors that his father will be taken into custody in Serbia on Good Friday.^[11]

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[1] Appeals Chamber Upholds Decision to Refer the Mejakic et al. Case to Bosnia and Herzegovina, ICTY Press Release MH/MOW/1066e, Apr. 7, 2006.
[2] Serbian President Says Belgrade Must Hand Over Mladic, Associated Press, Apr. 10, 2006.
[3] Prosecutor v. Stankovic, Decision on Rule 11bis Referral, IT-96-23/2-AR11bis.1, Sept. 1, 2005. See also Prosecutor v. Jankovic, Decision on Rule 11bis Referral, Case No. IT-96-23/2-AR11bis.2, Nov. 15, 2005. See also Prosecutor v. Ademi and Norac, Decision for Referral to the Authorities of the Republic of Croatia Pursuant to Rule 11bis, IT-04-78-PT, Sept. 14, 2005.
[4] Prosecutor v. Todovic and Rasevic, Decision on Rule 11bis Referral. IT-97-25/1-AR11bis.1, Feb. 23, 2006. The referral was quashed with regard to Todovic and suspended with regard to Rasevic, pending resolution of Mr. Todovic’s challenge to the Amended Joint Indictment.
[5] Partnership Between the ICTY and National Courts (last visited Apr. 11, 2006).
[6] ICTY Statute, art. 9: Concurrent Jurisdiction.
[7] Prosecutor v. Mejakic et al., Decision on Joint Defense Appeal Against Decision on Referral Under Rule 11bis, para. 16, IT-02-65-AR11bis.1, Apr. 7, 2006. See also ICTY Rules of Procedure and Evidence, Rule 11bis: Referral of the Indictment to Another Court.
[8] Prosecutor v. Mejakic et al., Consolidated Indictment, IT‑02‑65, Jul. 5, 2002.
[9] Serbia PM Says Belgrade Very Close to Mladic Move, Reuters, Apr. 11, 2006.
[10] Id.
[11] Serbian Police Exert Pressure on Mladic’s Family, Focus News, Apr. 10, 2006.

War Crimes—Ignace Murwanashyaka Faces Extradition

This weekend, a former Rwandan Hutu leader who had legal residence status in Germany was arrested by German police for alleged state immigration law violations.^[1] Today, Rwanda has announced that it is seeking extradition in order to try Ignace Murwanashyaka, former leader of the Democratic Liberation Forces of Rwanda (FDLR), in its national courts for his alleged role in war crimes committed in both Rwanda and the Democratic Republic of the Congo (DRC) during the 1990s.^[2]

The arrest and extradition request bring up several interesting jurisdictional possibilities. As a matter of speculation, it is likely that the request for extradition to Rwanda will be denied based on Rwanda’s retention of the death penalty. If so, the international crimes charges could be split between the UN International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC).

National Jurisdiction
Germany
Currently, Mr. Murwanashyaka is facing charges for violations of German immigration laws. The penalties for the violation of a national law by a nonnational, if tried and convicted, often include jail time, fine, and the possibility of deportation to the individual’s home country. However, it is unlikely that Germany will press the immigration issue in light of the international interest in Mr. Murwanashyaka’s possible involvement in international crimes.

Rwanda and the DRC
If Rwanda succeeds in achieving the extradition of its national, it may charge Mr. Murwanashyaka with violations of national and international crimes under its own laws. These charges could encompass acts allegedly committed in both Rwanda and the DRC.

However, Germany has stated that it will not extradite Mr. Murwanashyaka to any country that could impose a death penalty.^[3] Both Rwanda and the DRC retain the possibility of a death sentence for the conviction of ordinary crimes.^[4]

International Jurisdiction
International Criminal Court (ICC)
In 2004, the ICC initiated an investigation into alleged war crimes committed in the DRC after July 1, 2002. At the time of this post, Mr. Murwanashyaka has not been indicted by the ICC, nor has the Office of the Prosecutor issued a warrant for his arrest. The situation was referred by the DRC to the ICC in April 2004 and the investigation was opened in June 2004.^[5] The problem is that without an arrest warrant, there is no basis for a transfer request.

From another angle, if Rwanda were to prevail in its quest to extradite Mr. Murwanashyaka, the allegations of criminal acts committed in the DRC could be at issue. The ICC has complementary jurisdiction with national courts that it can assert with regard to specific acts and individuals under investigation. According to the principle of complementarity, Rwanda would have primacy unless the ICC determines that Rwandan courts are either unwilling or unable to investigate and prosecute the crimes.^[6]

International Criminal Tribunal for Rwanda (ICTR)
The ICTR has jurisdiction over individuals for international crimes allegedly committed in Rwanda between January 1, 1994 and December 31, 1994. Under Article 8(2) of the ICTR Statute, where there is concurrent jurisdiction between the Tribunal and Rwanda, the Tribunal has primacy.^[7] Therefore, charges arising from events in Rwanda could be heard at the ICTR.

By comparison, unless there is a separate referral to and investigation by the ICC based on the alleged Rwandan violations, there is no jurisdictional conflict between the ICC and the ICTR.

Universal Jurisdiction
Under the principle of universal jurisdiction, any nation may assert the right, under customary international law, to prosecute individuals for alleged acts of genocide, war crimes, or crimes against humanity. The idea is that any state may seek redress for crimes that offend all states and that no individual may seek safe haven from a single sovereign nation for an international crime. In a previous post, we discussed the exercise of universal jurisdiction in Spanish courts.

Under this principle, Germany could try to retain control of Mr. Murwanashyaka and try him for international crimes in German courts. This jurisdictional option is probably the least likely to be asserted.

Background
Mr. Murwanashyaka was arrested upon his reentry to Germany from Uganda by way of Belgium and is being held in a Mannheim jail for up to 3 months pending extradition, deportation, or a formal trial.^[8] Mr. Murwanashyaka is one of several individuals under investigation by the United Nations for alleged acts constituting war crimes during the 1994 violence between the ethic majority Hutus and minority Tutsis in Rwanda.^[9] The FDLR is also alleged to have perpetrated atrocities in the eastern part of the DRC after 1994.^[10]

The arrest stems from Mr. Murwanashyaka’s reentry to Germany last week after he reportedly traveled to Uganda to meet with leaders in Kampala. His movements were in violation of a 2005 United Nations‑ordered travel ban naming Mr. Murwanashyaka and 16 other individuals.^[11] One of the other named individuals, Thomas Lubanga, was extradited last month to the ICC after his arrest and detention in the Congo. Mr. Lubanga was the first person arrested by the ICC and was a subject of its investigation into the situation in the DRC.

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[1] German Police Arrests Hutu Leader [sic], Reuters [hereinafter Reuters], Apr. 8, 2006.
[2] Rwanda to Seek Extradition of Hutu Rebel Leader, Voice of America, Apr. 10, 2006.
[3] David Rising, German Authorities Arrest Rwandan Hutu Rebel Leader, Associated Press, Apr. 9, 2006. Not available online at the time of this post.
[4] Amnesty International’s Death Penalty Project lists both Rwanda and the DRC among its “Retentionist” states. Site last visited Apr. 10, 2006.
[5] Prosecutor Receives Referral of the Situation in the Democratic Republic of Congo, ICC Press Release ICC-OTP-20040419-50-En, Apr. 19, 2004. See also The Office of the Prosecutor of the International Criminal Court Opens its First Investigation, ICC Press Release ICC-OTP-20040623-59-En, June 23, 2004.
[6] Rome Statute, art. 1.
[7] ICTR Statue, art. 8(2).
[8] Reuters supra note 1.
[9] S/RES/1533 (2004).
[10] Rwanda Demands Germany Extradite Hutu Rebel Leader, Deutsche Welle, Apr. 10, 2006.
[11] S/RES/1596 (2005). See also the List Of Individuals And Entities Subject to the Measures Imposed By Paragraphs 13 And 15 Of Security Council Resolution 1596 (2005). Resolution 1596, a May 2005 action by the Security Council, imposed an arms embargo against the DRC that entailed initiatives to restrict international travel by individuals who were deemed to be in violation of the embargo.

McNabb in the News (4-11-06)

Senior Principal Douglas McNabb is quoted in an article in the Australian covering Hew Raymond Griffiths, who we discussed in September.

If he is extradited, Mr Griffiths faces an almost immediate trial, the so-called "rocket docket" that would have him go to trial within 60 days, and a highly conservative court.

Juries in northern Virginia, a dormitory community of Washington DC, are drawn from a population, sprinkled with US federal government employees and military personnel.

"That is one of the most conservative federal districts in the US," said Douglas McNabb, principal of McNabb Associates, a Washington law firm specialising in high-profile fraud and national security cases.

"That means in practice the juries there are incredibly conservative."

The process is also phenomenally expensive. While in Australia Mr Griffiths has had some of Australia's top barristers courtesy of their goodwill and legal aid, in the US strong representation would cost him at least $US50,000 ($70,000).

Mr McNabb said federal authorities "don't care" where an offence is committed, and had cast a wide extradition net.

If Mr Griffiths was extradited he would have difficulty navigating the complex US justice and penal system.

"The US Marshals will come and get him and he will be handcuffed and chained at the waist for security reasons," said Mr McNabb.

"When he gets to the States he will be placed in very constrained detention facilities. He'll get a bail hearing, and he'll lose it because he'll be considered a flight risk."

US authorities were likely to take into account time already served on remand in Australia, but that decision would ultimately rest with the US Bureau of Prisons rather than the court.^[1]

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[1] Simon Hayes, Bandido Suspect in Minister’s Hands, The Australian, Apr. 11, 2006.