Outraged,
the government of Rwanda announced it would no longer cooperate with
the Tribunal, thus crippling the ability of the Tribunal to function.
The Prosecutor immediately filed a request for review or reconsideration,
asserting that new facts had come to light which showed that the due
process violations were not as extensive as they had appeared, and
that any violations were not attributable to the prosecution. In its
review of the Decision, the Appeals Chamber (March 31, 2000) concurred
largely with the prosecution. It found that the new information showed
that the defendant’s rights had still been violated, but the
violations were not nearly as egregious as previously appeared, and
most were not the fault of the prosecution or the Tribunal. Holding
that all violations require a remedy, but that the remedy should be
proportionate to the harm, the Appeals Chamber altered its previous
ruling. Although it now declined to release Barayagwiza, the Chamber
decided that after the trial on the merits, if the appellant is found
not guilty, he will be entitled to financial compensation; if he is
found guilty, "his sentence shall be reduced to take account
of the violation of his rights."
Note on ICTR Precedent:
Of particular
interest is what the Appeals Chamber will hold in regards to war crimes.
In the ICTR, no defendant has yet been convicted of a war crime, although
there have been findings of guilt of genocide and crimes against humanity.
The standard adopted in Akayesu and followed by subsequent
ICTR judgments — that an accused must be acting in "furtherance
of the war effort" to be found guilty under Article 4 of the
Statute — is up on appeal and will hopefully be reversed. In
applying this standard, the Trial Chambers appear to be concluding
that there was genocide in Rwanda and an armed conflict in Rwanda,
running parallel to each other, and each of the crimes committed by
the accused were committed during the course of the genocide, not
as part of the armed conflict, even when military leaders are the
defendants. All ICTR defendants have thus far been acquitted of the
war crime charges. This serves as devastating precedent for prosecuting
war crimes in other internal armed conflicts.
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