The International Criminal Tribunal for Rwanda (ICTR) rendered judgment in the high profile “Government II” case on September 30, 2011, and with it brought a persistently pressing matter back to the fore: what should the international community do with persons acquitted by the ICTR? In “Government II,” the ICTR tried four former ministers of the interim government established in Rwanda after the assassination of President Juvénal Habyarimana. Two of the four accused, Casimir Bizimungu and Jérôme-Clément Bicamumpaka, were acquitted for lack of sufficient proof of their involvement in the genocide. Returning to Rwanda is an unlikely option for these men because of their high profiles and the possibility of persecution. They will therefore have to be resettled in another country, a process that has proven quite difficult for the ICTR. After acquitting ten accused persons, only five have managed to find a host country. Former Rwandan Transport Minister André Ntagerura has unsuccessfully sought a host country since his acquittal in 2004. The plight of Ntagerura and others demonstrates the need for the international community to put its weight behind the tribunal’s verdicts and treat the resettlement of persons acquitted by international tribunals as a contemporaneous duty to the establishment of the ad hoc tribunals.
Outgoing ICTR President Judge Khalida Rachid Khan sees the resettlement of persons acquitted by the tribunal as a “fundamental expression of the Rule of Law,” guaranteeing acquitted individuals the right to live, including full enjoyment of education, employment, and family. Judge Khan has repeatedly implored the UN Security Council to aid in finding a suitable solution to the problem of resettlement. In a 2008 report highlighting relocation challenges, the ICTR noted that the effectiveness of ad hoc tribunals will be seriously challenged if member states do not demonstrate support in such efforts.
The Rwandan people live with the legacy of the 1994 genocide every day, and will continue to do so for generations to come. Public response to the acquittal of high profile individuals “convicted” in the court of public opinion is typically not positive. Thus, acquitted persons are housed in temporary safe houses in Arusha, Tanzania. Many UN member states have the ability to provide a safe alternative, and several have, but the majority of states show reluctance to take affirmative steps to work with the ICTR. This is due, in part, to the lack of any formal mechanism to set up such relocations or to encourage member states to accept acquitted individuals. Article 28 of the ICTR Statute governs cooperation with member states, but focuses primarily on the identification, testimony, service, arrest, detention, and transfer of suspects to the ICTR, and it does not mandate cooperation with requests for the resettlement of acquitted persons. The ICTR has thus relied on its registrar to coordinate these relocations, with mixed success after protracted bilateral negotiations. So far France has accepted two acquitted persons, while Belgium, Switzerland, and Italy have each accepted one.
In the past, the United Nations High Commissioner on Refugees (UNHCR) has expressed reservations about granting refugee status to acquitted persons, pointing to Article 1(F) of the 1951 Refugee Convention that prohibits refugee status if “there are serious reasons for considering that…[one] has committed a crime against peace, a war crime, or a crime against humanity….” However, the UNHCR notes that because acquitted persons fear persecution in Rwanda as a result of their acquittal, they require refugee status. Furthermore, an acquittal by an ad hoc tribunal may effectively remove the “serious reasons for concern” mentioned in Article 1(F). Yet refugee or not, the problem of finding a country to accept the acquitted persons still remains.
In June 2011, outgoing ICTR President Khan, with the support of the UNHCR, appealed to the UN Security Council to intervene and form a solution. The Security Council responded positively to President Khan’s request, and on December 21, 2011, adopted Resolution 2029 requesting that member states “cooperate with and render all necessary assistance to the International Tribunal in the relocation of acquitted persons.” Under Article 25 of the Charter of the United Nations, member states must “agree to accept and carry out” decisions of the Security Council, and such decisions are binding when made under Chapter VII of the Charter, as Resolution 2029 was. It is now up to the member states and the ICTR to build a formal mechanism. Five acquitted persons remain in Arusha under the protection of the ICTR, and unless a solution appears soon, the Residual Mechanism will inherit the challenge of finding host countries for each of them when it takes over for the ICTR in July 2012.