By Thomas Verfuss and Janet Sankale
When a suspect is acquitted before a domestic or national court, the presiding judge will typically say: “You are free to go.” At an international court, it is not necessarily as easy as that, as seen in the case of the eight Rwandans who for years have been paying the price for this lapse in international justice, with nowhere to go after their cases were concluded.
Their hopes of finally settling in a country they could call home after years of uncertainty have been dashed by Niger’s refusal to honour an agreement to host them. Instead, the government in Niamey has ordered that they leave its territory by the end of January, 2022.
This controversy has been brought about by the difference between national and international courts. Whereas domestic courts have a territory to release acquitted suspects to, international courts have no country of their own and so the suspects they release are hosted by a volunteer state, and therefore depend on its goodwill.
Several suspects acquitted by the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania, have found themselves in this situation, with nowhere to go after they were acquitted or served their sentence. They are afraid to return to their own country, Rwanda, because they fear that their United Nations court acquittal will not be respected and they will still be considered “génocidaires”, and even retried, in violation of the double jeopardy or ne bis in idem rule.
So, acquitted ICTR suspects, or convicts who had served their sentence, for years resided in a so-called “safe house” in Arusha, where the Tanzanian authorities only tolerated their presence. They had to live in a regime of semi-liberty for years, with no residency permits or passports and no ability to work or move freely. Some have family members in Europe, where the law guarantees a right to family life, but they could not travel abroad.
This problem remained unresolved for many years. However, last year, the Registrar of the International Residual Mechanism for Criminal Tribunals (IRMCT), the successor institution to the ICTR and the International Criminal Tribunal for the former Yugoslavia (ICTY), reached an agreement with the government of Niger to host the Rwandans and give them identity papers.
Surprisingly, on December 27, 2021, the authorities of Niger issued an expulsion order against the eight for “diplomatic reasons” and ordered them to leave within seven days. This was in violation of the country’s obligations under international law. According to press reports, the directive was prompted by pressure from Rwanda and France. Now the eight have nowhere to go and are afraid to be sent back to Rwanda.
An IRMCT judge ordered the authorities of Niger to rescind the expulsion order. The government in Niamey has now allowed the Rwandans to stay until the end of January. In the meantime, their lawyers are hoping to find another country to welcome them.
Abbe Jolles and Jean Flamme, the counsel for Tharcisse Muvunyi and Innocent Sagahutu respectively, have written to UN Secretary-General António Guterres to evacuate the Rwandans after Niger failed to comply with its agreement with the UN-mandated IRMCT to host the eight, who were relocated to the country from Arusha, Tanzania, on December 5, 2021.
‘‘Shockingly our demands to evacuate our clients and relocate them to safe countries have been dismissed by the IRMCT… we are extremely concerned that the Republic of Niger has ignored their agreement with the UN and that our demands for safe evacuation have been ignored,” said their letter dated January 24, 2022.
“We fear our clients will be abducted and sent to Rwanda. They have served their sentence. Our clients are in danger and will be killed if the UN does not act.”
Kate Gibson, the counsel for Prosper Mugiraneza before the IRMCT, said in a comment for Journalists For Justice: “States cannot only support international justice when it results in convictions. Former accused who have been acquitted by the ICTR or have served their sentences cannot just be abandoned and left to live in stateless and hopeless existence with no ability to work, contribute, or live together with their families. Niger’s arbitrary decision to expel these eight men has brought this issue to an important breaking point; it is time for states to support the UN-IRMCT, reunite these men with their families, and bring a close to this chapter which has been a stain on the legacy of the ICTR for 17 years.”
The International Criminal Court Bar Association (ICCBA) also expressed its concern about the unresolved situation in Niger involving the eight relocated Rwandans.
In a press release dated January 10, 2022, the ICCBA recalled that UN Security Council Resolution 1966 requires all member states to comply with orders issued by the IRMCT. It asked all states and international actors to support the efforts of the IRMCT to negotiate a solution and called for a stay of the expulsion order or its reversal altogether.
On December 31, 2021 the IRMCT duty judge in Arusha, Joseph E. Chiondo Masanche, acting under the powers conferred on him by the presiding judge of the court in The Hague, Carmel Agius, ordered the government of Niger to suspend the expulsion order for 30 working days. The judge stated that the expulsion was a violation of an earlier agreement with the UN to host the group.
According to reports, Niger accepted the order on January 3, 2022 and suspended the expulsions, allowing the “Rwandan 8” to stay until the end of January.
The eight were political and military officials during the 1994 Rwandan genocide. They include Protais Zigiranyirazo, a brother of Agathe Kanziga, the wife of former Rwandan president Juvénal Habyarimana, whose death when his plane was shot down in April 1994 sparked the genocide. Zigiranyirazo was the governor of Ruhengeri for more than 10 years. In 2008, he was convicted of crimes of genocide, but was acquitted on appeal in 2009.
Francois-Xavier Nzuwonemeye and Innocent Sagahutu were the commander and deputy commander of the Reconnaissance Battalion respectively. Nzuwonemeye was charged with conspiracy to commit genocide, complicity in genocide, crimes against humanity, and violations of the Geneva Convention. He was acquitted in 2014.
Sagahutu was convicted of ordering the killing of former Rwandan prime minister Agathe Uwilingiyimana and the murder of 10 Belgian UN peacekeepers in Kigali, Rwanda, in April 1994. He was sentenced to 20 years in jail, but the Appeals Chamber reduced it to 15 years, confirming only his criminal responsibility in aiding and abetting the murder of at least two Belgian peacekeepers. He was acquitted of the murder of Uwilingiyimana. Three months later he was set free after then IMRCT president Theodor Meron approved his request for early release.
Alphonse Nteziryayo was the prefect of Butare and Tharcisse Muvunyi was the Commander of the School of Non-Commissioned Officers of Butare. Nteziryayo was charged with crimes of genocide. He was sentenced to 30 years imprisonment and after an appeal the sentence was reduced to 25 years. He was later granted an early release in 2016.
Muvunyi was convicted of direct and public incitement to commit genocide and was sentenced to 15 years imprisonment. He was granted an early release in 2012.
André Ntagerura was the minister of Transport and Communications in 1994. He was charged with crimes of genocide and was acquitted on appeal in 2004 after the court said the prosecution had not proved the case beyond reasonable doubt.
Anatole Nsengiyumva was the commander of the military operational sector in Gisenyi. He was charged with crimes of genocide and was sentenced to life imprisonment. In 2008, the ICTR reduced his sentence to 15 years, but in 2011 he was released after receiving credit for time served.
Mugiraneza was minister of Public Service. He was convicted of crimes of genocide and acquitted on appeal in 2013.
The resettlement agreement between the IMRCT and Niger to host the Rwandans, concluded on November 15, 2021, was a relief to the UN after the ICTR failed to find a country to accept them when the court closed in December 2015.
It came as a surprise when, at the end of December 2021, Niger President Mohamed Bazoum announced the expulsion of the eight Rwandans.