Juvénal Kajelijeli v. Prosecutor
Case No. ICTR-98-44A-A
by Brianne McGonigle*
edited by Anne Heindel**
On May 23, 2005, the ICTR Appeals Chamber issued its judgment in Juv�nal Kajelijeli v. Prosecutor. Kajelijeli was bourgmestre of the Mukingo Commune from 1988 to 1993 and was reappointed to that post in June 1994. In its 2003 judgment, Trial Chamber II found that in April 1994 Kajelijeli exercised control over the Interahamwe militia, played an important role in transporting members of the Interahamwe to locations where they attacked Tutsi, provided Interahamwe with weapons for these attacks, and directed Interahamwe to massacre Tutsi, which resulted in the deaths of more than 300 individuals. For these acts, the Trial Chamber convicted Kajelijeli of both individual and superior responsibility for genocide and extermination as a crime against humanity and sentenced him to two concurrent terms of life imprisonment. The Trial Chamber also convicted him of individual responsibility for direct and public incitement to commit genocide, for which he received a concurrent 15-year sentence.
Kajelijeli filed appeals against his convictions, the length of his sentence, and the Trial Chamber's dismissal of his preliminary motions challenging the Tribunal's jurisdiction on the basis of the alleged illegality of his arrest and detention. The Appeals Chamber dismissed the majority of Kajelijeli's appeals. It agreed, however, that the Tribunal had convicted Kajelijeli improperly on the basis of superior responsibility and had violated Kajelijeli's rights during his arrest and detention. Consequently, the Trial Chamber reduced his sentence to 45 years imprisonment.
CONVICTION ON THE BASIS OF SUPERIOR RESPONSIBILITY
Kajelijeli submitted that the Trial Chamber erred in finding that he exercised leadership and effective control over the Interahamwe and that he had the authority to stop the killings in Mukingo, Nkuli, and Kigombe Communes. Before addressing this argument, the Appeals Chamber recalled that in the Kordić and Cerkez case, among others, the ICTY Appeals Chamber had determined that "concurrent conviction for individual and superior responsibility in relation to the same count based on the same facts constitutes legal error invalidating the Trial Judgment." Endorsing this view, the Appeals Chamber vacated Kajelijeli's convictions for genocide and the crime against humanity of extermination in so far as they were made on the basis of superior responsibility and affirmed his convictions insofar as they were based on a finding of individual responsibility. Nevertheless, the Appeals Chamber found it necessary to consider whether Kajelijeli held a superior position over the Interahamwe in order to determine whether the Trial Chamber was correct in considering his superior position as an aggravating factor for the purposes of sentencing.
The Appeals Chamber noted that a superior is someone who possesses either de jure or de facto authority over subordinates and is able to exercise effective control over them. Rejecting Kajelijeli's argument that to establish "effective control" there must be proof that an accused exercises either "the trappings of de jure authority" or "authority comparable to that applied in a military context," the Appeals Chamber reiterated its finding in the Bagilishema case that a de facto civilian authority need only possess "the requisite degree of effective control." In this case the evidence showed that Kajelijeli played a "pivotal role" in leading the attacks. For example, the Trial Chamber found, inter alia, that Kajelijeli instructed the Interahamwe to kill Tutsis and supervised attacks, and that the Interahamwe supplied him with daily updates on their efforts. Based on these facts, the Appeals Chamber affirmed the Trial Chamber's conclusion that the Appellant held a de facto superior position as a civilian over the Interahamwe and found that the Trial Chamber had been correct to consider this position at sentencing.
VIOLATION OF FUNDAMENTAL RIGHTS DURING ARREST AND DETENTION
Kajelijeli also alleged that the Trial Chamber had erred in denying his motions challenging the Tribunal's personal jurisdiction on the basis of his alleged arbitrary arrest and illegal detention - decisions that the Appeals Chamber had itself twice affirmed. Deciding that it has the "inherent discretionary power" to correct any mistakes made in the past, the Appeals Chamber reconsidered Kajelijeli's arguments. In its analysis the Appeals Chamber recognized two periods of his detention. The first period included the time from his arrest in Benin until his transfer to Arusha, Tanzania. The second period included the time from his arrival in Arusha until his initial appearance before the Tribunal.
Legality of Arrest and Detention in Benin
At the request of the ICTR Prosecutor, in 1998 Benin authorities arrested Kajelijeli without a warrant. Kajelijeli was held in custody in Benin for 85 days before he was served with an ICTR arrest warrant or a confirmed indictment, and he was not brought before either a domestic or ICTR judge for 95 days. Kajelijeli argued that his arrest and detention in Benin were unlawful under ICTR Rule 40, which authorizes the Prosecutor to request that a state arrest a suspect preliminarily, and arbitrary under human rights law. Moreover, he argued that his right to be promptly informed of the charges against him under human rights law had been violated.
The Appeals Chamber noted that Rule 40 does not provide explicitly for a suspect's right to be promptly informed of the charges against him or her or to be promptly brought before a judge. The Appeals Chamber also noted that "[i]t is for the requested State to decide how to implement its obligation under international law." The Prosecution, however, has "overlapping responsibilities" with cooperating states and must "ensure that, once it initiates a case, 'the case proceeds to trial in a way that respects the rights of the accused.'" Consequently, the Prosecution has a two-pronged duty: (1) to request state authorities to bring a suspect promptly before a domestic judge so that his or her rights, including to notice of the charges, are safeguarded; and (2) to promptly request the Tribunal to provide the cooperating state with a provisional arrest warrant and transfer order.
In determining whether the Tribunal had met its obligations with regard to the legality of Kajelijeli's arrest by the Benin authorities, the Appeals Chamber found that Rule 40 did not require the Prosecutor to provide Kajelijeli with a copy of the arrest warrant. Moreover, "given the exigencies of the circumstance in which he was arrested," the lack of either an ICTR or a domestic arrest warrant did not violate his due process rights. Kajelijeli was thus lawfully arrested under Rule 40. Nevertheless, in accordance with human rights law, "a suspect arrested at the behest of the Tribunal has a right to be promptly informed of the reasons for his or her arrest, and this right comes into effect from the moment of arrest and detention." Although there was a dispute as to whether Benin authorities had informed Kajelijeli of the reasons for his arrest, the Appeals Chamber found that the Prosecutor could not rebut Kajelijeli's claim that he had not been provided this information until he received a copy of the ICTR warrant and indictment 85 days after his arrest. Consequently, the Appeals Chamber held that Kajelijeli's "right to be informed of the reasons as to why he was deprived of his liberty was not properly guaranteed."
In determining whether the Tribunal had met its obligations with regard to the length of Kajelijeli's detention, the Appeals Chamber emphasized that Rule 40, which authorizes provisional arrest and detention without an arrest warrant, must be read together with Rule 40bis, which "allows for the Prosecution, within a reasonable period of time, to request a Judge of this Tribunal to issue an order for the transfer of the suspect from the custody of that State to the custody of the Tribunal for purposes of provisional detention prior to issuance of an arrest warrant and indictment." A Rule 40bis request, which should include any provisional charges against the suspect and a summary of the material on which the Prosecution has relied in making the charges, along with the order granting the request, must be served on the suspect as soon as possible. Together, Rule 40 and Rule 40bis "place time limits on the provisional detention of a suspect prior to issuance of an indictment" and "ensure that certain rights of the suspect are respected during that time." Further,
- The Appeals Chamber considers that it is not acceptable for the Prosecution, acting alone under Rule 40, to get around those time limits or the Tribunal's responsibility to ensure the rights of the suspect in provisional detention upon transfer to the Tribunal's custody under Rule 40 and 40bis, by using its power under Rule 40 to keep a suspect under detention in a cooperating State.
In determining whether the requirements of Rule 40 and Rule 40bis had been met in this case, the Appeals Chamber noted that under human rights jurisprudence the right to be brought "promptly" before a judge is violated if this does not take place within a few days of detention. Moreover, under human rights law, provisional detention of a suspect without charge is generally discouraged, although it may be lawful "as long it is as short as possible, not extending beyond a reasonable period of time." The Appeals Chamber recalled that in the Barayagwiza case it had previously determined that, in exceptional circumstances, a suspect may be provisionally detained under Rule 40bis without being formally charged for a maximum of 90 days. This length of provisional detention, however, would be warranted only "so long as the protections provided for the suspect's rights under Rules 40 and 40bis of the Rules are adhered to." Because Kajelijeli's rights were not adhered to, i.e., he was neither promptly provided with informal information as to the charges of which he was accused nor promptly brought before a judge, the Appeals Chamber found that his detention in Benin was unreasonable under both the ICTR Rules and human rights law. Moreover, it found that the Prosecution was partially responsible for these violations because it had failed to request a Rule 40bis transfer within a reasonable period of time.
Legality of Detention in Arusha
After Kajelijeli's transfer to the Tribunal detention facility, he was held in custody for 211 days prior to his initial appearance. He did not have assigned counsel for 147 of those days. Agreeing with Kajelijeli that his right to counsel had been violated by the Tribunal, the Appeals Chamber found that even if Kajelijeli frustrated efforts by the Registry to provide him with counsel of his choice, Rule 44bis "clearly obligates the Registrar to provide a detainee with duty counsel, with no prejudice to the accused's right to waive the right to counsel." Moreover, Rule 44bis states that this requirement "exists from the very moment of transfer to the Tribunal and is not confined to purposes of the initial appearance only."
Likewise, the Appeals Chamber found that the Tribunal had violated Kajelijeli's right to an initial appearance. It noted that, on their face, Article 19(3) of the ICTR Statute and Rule 62 of the Rules require that, once an accused is taken into the Tribunal's custody, he or she should appear before the Trial Chamber or a judge "without delay" in order to be formally charged. The wording of Rule 62 is "unequivocal" in this regard because of the important purposes that the initial appearance serves, including entering a plea, reading the official charges against the accused, ascertaining the identity of the detainee, ensuring the rights of the accused have been respected, giving the accused an opportunity to voice complaints, and scheduling a date for the trial or sentencing. Consequently, regardless of whether there were difficulties in assigning counsel for Kajelijeli, the Tribunal should have scheduled his initial appearance without delay.
REMEDY FOR VIOLATION OF APPELLANT'S FUNDAMENTAL RIGHTS
In examining whether these violations of Kajelijeli's fundamental rights should result in the Tribunal's loss of personal jurisdiction, the Appeals Chamber found that, because it must "maintain the correct balance between "'the fundamental rights of the accused and the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law," it should only decline to exercise its jurisdiction "where to exercise jurisdiction in light of serious and egregious violations of the accused's rights would prove detrimental to the court's integrity." For example, this may be appropriate when an accused is "seriously mistreated" before being turned over to the Tribunal. Because the Appeals Chamber did not consider the facts of this case to fall within this exceptional category, it held that that the remedy of setting aside jurisdiction would be disproportionate. Instead, the Appeals Chamber found that the appropriate remedy for these violations was to reduce Kajelijeli's sentence.
Noting that the Trial Chamber "is required to take into account any mitigating circumstances in determining a sentence[,]" the Appeals Chamber found that the Trial Chamber erred in finding that Kajelijeli did not deserve any credit for allowing his wife to shelter four Tutsi in his Mukingo home, offering words of comfort to them, and agreeing not to evacuate his wife and children partly on their account. Nevertheless, the Appeals Chamber held that the Trial Chamber did not abuse its discretion in finding that these mitigating circumstances, even if they had been taken into account, did not require a reduction in Kajelijeli's sentence.
With regard to its decision to vacate Kajelijeli's convictions based on superior responsibility, the Appeals Chamber concluded that this change had no impact on his sentence. To remedy the violations of Kajelijeli's rights during his arrest and detention, however, the Appeals Chamber set aside Kajelijeli's two life sentences and 15-year sentence and imposed a single sentence of 45 years imprisonment, minus credit for time served.
* Brianne McGonigle is a J.D. candidate at the Washington College of Law
**Anne Heindel is the assistant director of the War Crimes Research Office at the Washington College of Law
The proper citation for this article in the Human Rights Brief Volume 13, Issue 3, beginning at page 10 is: 13 No. 3 Hum. Rts. Brief 10 (2006).