Prosecuting International Crimes in Africa - PULP - University of ...

The contribution of the International Criminal Tribunal for Rwanda 91
officials. Based, inter alia, on the Kambanda precedent the attempt by the
former President of Liberia (Charles Taylor) to invoke immunity before
the Special Court for Sierra Leone, was dismissed. The ICTR has also
highlighted that by participating in crimes, those in positions of authority
abuse their power and trust and that is an aggravating factor in
sentencing, 116 as was the case with Kambanda who was Prime Minister
and head of government.
Moreover, the ICTR’s approach to fair trial guarantees and related
matters are noteworthy. Very early in its life, the Tribunal emphasised that,
regardless of the unthinkable nature of the crimes such as those over which
it exercises jurisdiction, defendants must enjoy fair trial guarantees. In the
Barayagwiza case, the ICTR ordered the release of Barayagwiza, citing
‘egregious’ delays in indicting and bringing him to justice upon his arrest
and detention. This showed that: 117
The Tribunal – an institution whose primary purpose is to ensure that justice
is done – must not place its imprimatur on such violations. To allow the
appellant to be tried on the charges for which he was belatedly indicted would
be a travesty of justice. Nothing less than the integrity of the Tribunal is at
stake in this case. Loss of public confidence in the Tribunal, as a court valuing
human rights of all individuals – including those charged with unthinkable
crimes – would be among the most serious consequences of allowing the
appellant to stand trial in the face of such violations of his rights. As difficult
as this conclusion may be for some to accept, it is the proper role of an
independent judiciary to halt this prosecution, so that no further injustice
occurs.
In addition to the redress of release, which appears to be available only in
exceptional circumstances, the ICTR’s jurisprudence holds that other
forms of effective redress are also available to accused victims of rights
violations, such as financial compensation 118 or a reduction of
sentence. 119
In other cases, the ICTR has provided clarifications on the scope of
guarantees and rights. According to the Tribunal, an accused’s right to be
tried in his presence (as enshrined in its Statute and various international
human rights instruments) means that he has the right to be physically
116 Prosecutor v Kambanda paras 42-44 & 61; Kambanda v Prosecutor (Case ICTR 97-23-A)
Judgment 19 October 2000 paras 118-126.
117 Barayagwiza v Prosecutor (Case ICTR-97-19) Judgment 3 November 1999. The Appeals
Chamber subsequently vacated the decision, because newly-discovered facts presented
by the Prosecutor in a motion for review showed that the violations suffered by the
Appellant and the omissions of the Prosecutor were not the same as those that
underpinned the decision to release him. Prosecutor v Barayagwiza Decision
(Prosecutor’s Request for Review or Reconsideration) 31 March 2000.
118 Rwamakuba v Prosecutor (Case ICTR-98-44C-A) Decision on Appeal against Decision
on Appropriate Remedy 13 September 2007.
119 Prosecutor v Barayagwiza Decision (Prosecutor’s request for review or reconsideration)
para 75.