Report of Proceedings - International Criminal Tribunal for Rwanda

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Article 26 also speaks about the responsibilities the accepting State has and what is expected from the ICTR. The Tribunal has only a supervisory capacity, with the governing law being that of the host country. However, who will have supervisory powers after the ICTR’s completion strategy is successfully concluded in 2010? Article 27 deals with commutation of sentence or pardon. This matter is referred to the President, who must consult with the Trial Chamber that tried the case and others, and make a decision, which must always be in the interests of justice. Again, after completion, who will perform this function? Mr. Munlo believes that there would have to be a body to carry on this work that is designated by ICTR. Also with respect to enforcement of sentences, there is a procedure to follow to get in touch with a country for a potential transfer. The Registrar, who provides all the information relating to the convicted person, makes initial contact, so that the State can take an informed decision. If there is interest, then a comprehensive memorandum is sent to the President, covering matters such as international minimum standards, security, and freedom to move within cells, exercise facilities, and so on. All the information on the prison, including the situation of his family, how much of his sentence has been served, and so on, is provided to the President, who consults with the Trial Chamber. Rwanda is also informed. The request is then forwarded to the State concerned. If there is agreement, then the Registrar and the transfers sign a certificate made. It is a long, complicated process. For example, the health of the accused is a potential obstacle. A country may not want to pay for the care or cannot offer a cell that conforms to the necessary standards. In such situations, the ICTR has to assist. PARTICIPANT AND AUDIENCE MEMBER QUESTIONS AND COMMENTS Mr. David Crane observed that SCSL was facing the same issues on sentence enforcement that were being faced by ICTY and ICTR. The SCSL legislation provided that a sentence could be served in Sierra Leone “or elsewhere.” They were putting much emphasis on “elsewhere” in an effort to protect prisoners. Mr. Crane commented furthermore that part of the SCSL exit strategy addresses what to do with records, convicted persons serving sentence, and other matters. The court has thought about establishing a residual office that would deal with records, monitor indictees, and so on. He suggested that there could be a “UN war crimes residual office”, where individuals from the various tribunals would work, and which would have librarians, records, and other facilities. The tribunals ought to consolidate and work together to make this happen. Mr.Roland Amoussouga supported Mr. Munlo’s comments with respect to engaging the UN. The model agreement that the Office of Legal Affairs (OLA) had sent to ICTR had been amended, since most African States were unable to meet the required standards, and ICTR had to meet certain costs. The OLA agreed to the amendment, but refused the financial support. The General Assembly approved the ICTR request and made the money available, but the OLA opposed the expenditure of the money by the ICTR, on the basis that it was not competent to spend the money. The ICTR was blocked for two years and has only now got 22
authorisation. He concluded that the long-term financial obligation of the UN in sentence enforcement is a serious issue for African countries. Mr. Samuel Akorimo posed the question: What did we aim to achieve in the enforcement of sentences? He spoke about two criminological theories of punishment: (1) the consequentialist theory, under which punishment is to lead to reform of the convict and his reintegration in society; and (2) the retributive theory, under which, regardless of the result, punishment must occur. He said he subscribed to a third theory, which was a hybrid. Punishment should occur, but should also bring about reform and lead to reintegration. He asked if participants agreed with the need for this third category. It would ensure punishment, but also to reintegrate perpetrators into the community. Dr. John Hocking explained that at the ICTY, all convicted persons serve their time in western European prisons, all of, which had provisions for early release. The general rule was that release would occur after two thirds of the sentence was served. All prisoners came back to the President when they hit the two-thirds mark. It was pretty much of a given that they got out an early release. Mr. Martin Ngoga asked if the minimum standards were written down. For example, in Rwanda’s negotiations with ICTR, the Tribunal seemed to be setting its own standards. If the standards kept changing, could they be applied equally? He also raised the question of how the enforcement of sentences was advancing the goal of reconciliation, if the circumstances of an ICTR convicted person were to be different, not only from those of fellow prisoners in Rwanda, but from those of ordinary law abiding citizens. He also raised the questions about standards for victims. Prisoners with HIV receive care while their victims are left to die. He asked, “How did this advance reconciliation? Although he recognises that they cannot necessarily provide similar conditions for victims, Mr. Ngoga believed that they should have a minimum policy for survivors. Mr. David Crane said this was also challenge in the SCSL. Much thought that convicted persons should be executed. This was not the international standard, but one had to be respectful to the local community while explaining that execution was not the international standard and that the rule of law was more powerful than the rule of the gun. With regard to victim assistance, he agreed that is necessary because if this were missing from the process, victims would be re-victimised. Those accused in the SCSL were living quite well. Whereas an ordinary person might eat just one meal a day, detainees receive four. This bothered people in Sierra Leone. Mr. Roland Amoussouga described the issue raised by Ngoga as “very touchy.” The ICTR was bound by international covenant to respect minimum standards. The international community could only help Rwanda to improve standards, and there was a way to go. He believed, as a head of the ICTR delegation to Rwanda, that many of the minimum standards were being achieved. With regard to HIV, the ICTR was at the forefront of activism to bring the plight of victims in Rwanda to attention. The Registry had put forward a programme that helped witnesses with HIV. They took a step forward, creating a team with a gynaecologist, a 23
Page 1 and 2: Colloquium of Prosecutors of Intern
Page 3 and 4: thereby improving the effectiveness
Page 5 and 6: which has both of these groups in a
Page 7 and 8: Mr. Ocampo concluded by noting the
Page 9 and 10: ing out evidence that supported a c
Page 11 and 12: PARTICIPANT AND AUDIENCE MEMBER QUE
Page 13 and 14: There must be a way to establish so
Page 15 and 16: criteria to determine whom, in the
Page 17 and 18: Mr. Cote also addressed the issue o
Page 19 and 20: VI. Service of Sentence for Interna
Page 21: One failing of the ICTY has been th
Page 25 and 26: VII. Challenges of the Administrati
Page 27 and 28: Another challenge that may be perce
Page 29 and 30: Mr. Ngoga began his presentation by
Page 31 and 32: global test to apply international
Page 33 and 34: various women’s organisations, wh
Page 35 and 36: 13. Ms. Binaifer Nowrojee, Lecturer
Page 37: 5. Service of Sentence for Internat

Report of Proceedings - International Criminal Tribunal for Rwanda

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