When Acquittal Is Small Consolation…

by Kevin Jon Heller

Although the ICTY’s recent high-profile acquittals have been getting all the attention, it’s worth noting that the ICTR Appeals Chamber has just acquitted two high-ranking defendants, Augustin Ndindiliyimana, the former chief of staff of the Rwandan paramilitary police, and François-Xavier Nzuwonemeye, the former commander of a military reconnaissance battalion, on the ground that the Trial Chamber erred in concluding that they had effective control over gendarmes suspected of participating in the 1994 genocide. The acquittals are obviously notable in themselves, but what’s particularly striking — and more than a little disturbing — is that Gen. Ndindiliyimana was originally sentenced to time served because he had spent 11 years in pre-trial detention:

Mr. Ndindiliyimana, who was arrested in Belgium in 2000, was convicted in 2011 of genocide, extermination as a crime against humanity and murder, and he was sentenced to 11 years. He was freed after time served.

Eleven years in pre-trial detention at an international tribunal is simply unacceptable. And Ndindiliyimana’s acquittal on all charges after 11 years in pre-trial detention simply adds insult to injury. All in all, a bad day for the ICTR’s reputation.


8 Responses

  1. Indeed, it is unacceptable… In the ICTR case that I’m working in, out client spent 16 years in prison before the  verdict in 2011. Now, we are in the appellate stage and we dont have a date for the hearing yet…. So, near 20 years to have a definite judgement (in appeal) at an international tribunal ? Totally unacceptable, whatever the sentence the accused gets (if not acquitted) !! 

  2. A case for compensation if I’ve ever seen one. The problem is the ICTR is unwilling to even consider compensation due to the floodgates argument. So basically, they are saying ‘we can’t compensate anyone, despite a valid claim, or we’ll have to compensate nearly everyone’.

    In Zigiranyirazo, the ICTR Trial Chamber rejected a claim for compensation for 8 years of pre-trial detention, even after the Appeals Chamber had  found that the trial judgment contained ‘grave errors of fact and law’ and that Zigiranyirazo’s conviction ‘violated the most basic and fundamental principles of justice’ by reversing the burden of proof.  And one of the main reasons for this decision?  “To award compensation in the circumstances of this case might open the floodgates to an unmanageable host of compensation claims”.  That sentence says it all, when it comes to the ICTR’s legacy. 
    What was the OTP doing for all those years of pre-trial detention? And what would it take for a successful claim for compensation?  Ndindiliyimana should make a claim, and then we can see the ICTR dance in trying to explain why 11 years of pre-trial detention does not meet the requisite “grave and manifest miscarriage of justice” standard. I also posted on this dirty little secret of the ICTR, and proposed compensating the acquitted defendants with the money going to reconciliation projects in the region.

  3. To correct my comment above, Zigiranyirazo was actually detained for 8 years prior to acquittal on appeal (4 years of pre-trial detention, 3 years during trial, and one year during the appeal), which is still too long but pales in comparison to the 11 years of pre-trial detention in Ndindiliyimana.  Time to argue that compensation case before the ICTR, Kevin!

  4. Kevin, Ndindiliyimana did not spend 11 years in pre-trial detention (ie after arrest but before trial started). He spent 4.  Still too long though. 

  5. CM,

    I think most people use “pre-trial detention” as shorthand for “time spent in detention prior to being convicted of anything.” But you’re right, it wasn’t as if he spent 11 years before trial began — that would be what Rwanda does.

  6. Kevin
    In my 8 years in the The Hague, I have never heard anyone from the OTP, Defence, Chambers or Registry use the term pre-trial detention to mean anything but detention prior to the commencement of trial, in the same way that a Pre-Trial Chamber only sits before the start of trial.
    Nevertheless, your point is well made. 11 years to secure a conviction is an outrage and is completely inexcusable. Compensation should be a given, and I would think at an independent inquiry would be in order too. That would certainly be the case in many domestic jurisdictions.

  7. Bearing in mind the changes to the form of participation in Katanga, the AC here are pretty adamant that Nzuwonemeye’s conviction for aiding and abetting the killing of the PM couldn’t be allowed to stand since ‘up until the end of the proceedings, the Prosecution did not unequivocally indicate that its theory of the case against Nzuwonemeye was that he aided and abetted the killing’, thereby denying him the ability to ‘attempt at trial to refute such an allegation’ (para 29). Perhaps time enough left for the ICC chamber to take this into account…?
    I’m not fully up to speed on the content of ordering as a mode of liability, but the distinction between the interpretation given to ordering and to aiding and abetting at paras 47 & 48 is striking. There’s been a tendency to conflate both modes, but in this instance the AC accepted that although Sagahutu did in fact order the killing of Belgian peacekeepers (who were subsequently killed), since the evidence didn’t establish that the person who received the order actually carried out the killing, and that it may have been someone else not directly subordinate to Sagahutu, then there wasn’t the necessary ‘direct and substantial effect’. No such requirement was required for the aiding and abetting charge. Am I right in thinking such a wide distinction between both modes is novel? 

  8. I recently assigned the Trial Chamber’s decision to my seminar students.  While one can quibble with aspects of it, the Trial Chamber appears to take seriously the need to establish the evidence beyond a reasonable doubt.  The Trial Chamber decision is hundreds of pages long, and the case took years to try due to its complexity.  Yet the Appeals Chamber judgment reversing is stunningly short (by ICTR standards) and quite opaque.  Putting the two together leaves the reader very little understanding of which Chamber got it right and given the stakes involved and the possible stain on the ICTR’s reputation, it would have been very helpful for the Appeals Chamber to more clearly and forcefully set forth its views on the facts and the law.  The ICTY/ICTR Appeals Chamber is certainly exhibiting some curious  behavior these days.

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