Florida Kabasinga

Tell us about your domestic and international experience prosecuting core international crimes, war crimes, crimes against humanity and genocide

I have had the honour of prosecuting genocide, crimes against humanity and war crimes both in the international legal arena and the domestic criminal justice system of Rwanda. From 2003 to 2012, I was a Prosecutor with the United Nations International Criminal Tribunal for Rwanda (ICTR) where I was variously Case Manager, Assistant Appeals Counsel and Appeals Counsel for nearly a decade. From July 2013 to January 2016, I was a Senior Legal Advisor to Rwanda’s Prosecutor General and Rwanda’s National Public Prosecution Authority’s International Crimes Unit, where I advised on extraditions; drafting international arrest warrants, indictments and extradition requests in addition to advising on best practices in the investigation and prosecution of core international crimes.

As a Prosecutor with the United Nations, being of Rwandan origin, I had unique insight into the culture of the perpetrators and witnesses. This, to someone who has not worked in this field, may not seem important. However, speaking Kinyarwanda and understanding the linguistic nuances could sometimes be the difference between eliciting evidence of a crime and normal language usage that does not rise, for example, to incitement to commit genocide. My ability to speak, understand and read Kinyarwanda enabled me to do a lot more prosecutorial work than most young Prosecutors at my level got the opportunity to.

One particular incident resonates with me to this day. Our Trial Team was investigating rapes perpetrated by Mikhael Muhimana, a local leader in Gishyita, Kibuye Prefecture. We had a witness statement from a survivor who spoke of the rape of her sister and countless other young women that died in the genocide. Although we suspected that she too had been raped, her witness statement and the oral interview we had conducted had not elicited this information from her.

As a young Rwandan who hoped for a peaceful Rwanda without inter-ethnic wars, international criminal justice served to restore my faith in humanity.

As a Rwandan woman, I knew she would not feel comfortable speaking about her own rape since she was married at the time and was perhaps afraid of this information being known publicly. I was a very young Prosecutor but I was allowed to speak with her privately. After assuring her that her identity would be protected and any information she gave us about her own rape would not be known publicly, she gave another statement with details of her own rape. She eventually testified against Muhimana who was handed a life sentence for all his crimes.

Prosecuting core international crimes at one of the only two ad-hoc international tribunals no doubt provided me with an opportunity to interact with and work alongside people that continue to strive for the development of this core area of law. The two Tribunals, ICTR and ICTY, brought together legal practitioners from all over the world to build on the Nuremburg international criminal law legacy. What the ICTR achieved in terms of jurisprudence for the crimes of genocide and rape as a crime against humanity and the ICTY achieved for the jurisprudence on war crimes will continue to resonate for decades to come.

In the nearly nine years I was with the ICTR, I saw international criminal justice close up. I saw the key architects of the Genocide against Tutsi handcuffed and sentenced to decades behind bars. As a young Rwandan who hoped for a peaceful Rwanda without inter-ethnic wars, international criminal justice served to restore my faith in humanity.

Source: ICTR website, http://unictr.unmict.org/en/tribunal

My domestic experience prosecuting core international crimes as a legal advisor to Rwandan Senior Prosecutors was quite different from my international experience. While there was always a struggle between the common law and civil law systems at the ICTR, the practice in Rwanda was quite clearly civil law with one or two common law practices imported into procedure. The greatest change I experienced was that it became clear from the outset that language issues would not be a cause for concern since the judges, prosecutors, defendants, witnesses and counsel spoke the same language. The effect was that all documents are in one language as well. The trials are therefore much easier to conduct, especially because majority of the witnesses are in Rwanda where the crime scenes are also located.

However, national jurisdictions, unlike international tribunals that require states to cooperate with them in the arrest and transfer of suspects; in obtaining evidence and in facilitating witnesses to enable their testimonies, national jurisdictions have an uphill task in securing cooperation in the extradition of suspects. The laws on extradition defer from country to country. Most countries do not allow extradition where a suspect has gained their nationality. In such a situation, Rwanda has requested that countries where suspects are located should try them. But the costs of investigating and prosecuting one trial abroad are prohibitive since crime scenes and the witnesses are in Rwanda. This has resulted in only a handful of trials being conducted abroad so far, despite the hundreds of extradition requests transmitted by Rwanda to at least 30 different countries. 

In addition, most countries require an extradition treaty, which is not an easy task where suspects have been identified in more than 30 different countries. The result has been impunity for suspected genocidaires who continue to enjoy their freedom despite being sought by Rwanda for serious international crimes.

What drew you to work in this field?

I was born in exile in Kampala, Uganda to parents who had fled, as toddlers, from Rwanda in 1959. I was always keenly aware that I was not Ugandan but a Rwandan citizen who could not go back home for political and ethnic reasons. When the genocide against Tutsi was happening in Rwanda, I watched on television with the rest of the world, the unprecedented scale of mass murder. I was a high school student at the time. I made the decision to study law and pursue justice for the victims who would no longer have a voice. My education and career paths were, from then, dictated by the need to prosecute the key perpetrators as a way of dealing with the horror of mass murder. I was convinced that justice through courts of law was the best way of dealing with what happened. The key perpetrators were to be tried at the ICTR. I had the privilege of prosecuting some of the key suspects for nearly a decade. As the ICTR started winding down its work, I decided to work with Rwanda’s National Public Prosecution Authority whose work in pursuit of genocide fugitive suspects was seemingly just starting because of their sheer number. Today, I continue to advise Rwanda’s Public Prosecution Authority on genocide, crimes against humanity and war crimes.

What does international criminal justice mean to you?

International criminal justice or the threat of international criminal justice is sometimes what stands between potential victims and potential perpetrators of mass crimes. In 1994, when Theoneste Bagosora, the de facto Army Commander in Rwanda, left the peace talks between the warring groups in Arusha, Tanzania, vowing to prepare an apocalypse, he did not recon that international criminal justice would have him back to Arusha in handcuffs and before an international criminal court. Bagosora, along with the entire ministerial cabinet and high-ranking military leaders have been tried, acquitted or sentenced by the ICTR. They were all powerful in Rwanda in 1994. Had it not been for the power of the ICTR that had Security Council backing, it is likely they would, today, be sitting somewhere on a beach enjoying their freedom for the remainder of their natural lives. It is a testament to the capacity of international criminal justice to do the right thing that they are languishing in jails in Arusha, Tanzania, in Mali and in Benin instead. There is no doubt that this example has perhaps saved thousands of lives in deterrence. That is the true meaning of international criminal justice.

International criminal law is a constantly developing area. What are some of the major challenges prosecutors in this field are currently facing, domestically and internationally?

The International Criminal Court’s Prosecutor has the biggest challenge of having to negotiate her way into any situation that she would like to investigate. Unlike the tribunals for Rwanda and the former Yugoslavia, that had Chapter 7 backing of the Security Council, the ICC can only intervene where a national jurisdiction is either unable or unwilling to investigate and prosecute. This has rendered the work of prosecuting suspected perpetrators of genocide, crimes against humanity and war crimes almost impossible.

Domestic prosecutors are particularly susceptible to the political will of governments and key perpetrators of core international crimes.

Secondly, the idea that you can voluntarily join the ICC as a country, defeats the purpose of international criminal justice. Countries that have the intention of not worrying about being subjected to the rigors of international criminal justice can still enable its officials commit the most egregious crimes with impunity if their domestic criminal justice systems do not hold perpetrators accountable.

Thirdly, accessing crime sites to gather and preserve evidence is another challenge faced by international prosecutors and investigators. Core international crimes are committed during situations of strife that render it dangerous for investigators and prosecutors to access evidence to build a case. That continues to be the case and by the time areas where mass crimes have been committed are accessible, the evidence may have already been tampered with or been eroded.

Domestic prosecutors are particularly susceptible to the political will of governments and key perpetrators of core international crimes. They are sometimes called to work in an environment that is not conducive to investigating powerful perpetrators. 

Finally, both international and domestic prosecutors have to rely on national security apparatus to provide security to witnesses. Depending on which side of criminal justice local security forces are, such security and protection is not always guaranteed. Witnesses are therefore sometimes reluctant to cooperate with prosecutors because of legitimate fears for their own safety and the safety of their family. The first priority of a prosecutor, where feasible, ought to be relocation of vulnerable witnesses to ensure their safety and to protect against witness tampering. 

Tell us about one of your most memorable or inspiring experiences in this field

I met a survivor of the Genocide in Kigali while investigating the case against Francois Karera. The survivor was an old Tutsi man who had allegedly been saved by Francois Karera, the Prefet of Kigali-Rural Prefecture in Rwanda. Karera, a powerful Hutu man had many Tutsi neighbors in Cyivugiza where he lived in Kigali city. It was alleged that he saved the old man on condition that he swears on the Rwandan flag that he will never be Tutsi again and will never associate with Tutsi people from then on. His family members were allegedly killed but he was spared on Karera’s order after swearing as asked. When I met him in Kigali, the old man looked broken and said he had nothing to say. I still feel that not only did he fail to get justice for his murdered family members; he perhaps still felt he owed Karera a debt of gratitude for sparing his life. A part of me feels we failed him and should perhaps have tried harder to gain his trust.

What advice would you give to fellow prosecutors who are considering working in this field?

Working in the area of international criminal justice is very rewarding work. However, Prosecutors have to steel themselves for the harrowing and frankly horrifying evidence that comes with working in this area. Prosecutors will encounter rape victims, survivors who have no family left, children that have survived unimaginable horror. Each of their stories remains with you for the rest of your life. The comfort you get is from knowing that the survivors, victims and family members were provided an opportunity to tell their stories and be validated in having their tormentor sentenced. This always renews a Prosecutor’s commitment to continue the pursuit of justice.

I firmly believe that prosecutorial work is a calling for most and only a career for a few. Like most areas of practice, you win some cases and lose some cases; except when you lose, you always have a feeling you let down, not one murder victim, but countless victims and survivors. This knowledge should empower prosecutors of core international crimes to be innovative in the way they seek to apply and develop international criminal law. The ICTR’s decision in Akayesu where rape was found to constitute genocide and cases where coercive circumstances were found to prove an inherent lack of consent for the crime of rape, are all landmark decisions that have advanced international criminal law jurisprudence. Any prosecutor who chooses to work in this area should strive to achieve similar innovative decisions.

I should warn prospective prosecutors that sometimes prosecutors are called to assess the psychological, medical and material needs of the witnesses in order to ask the right questions and to ask for the right assistance from specialized services such as witness protection. If such needs are not taken care of, sometimes the witness is likely not to provide the right evidence because of his or her discomfort. I will provide an example to highlight this. While investigating the case against Muhimana, we realized that we had many rape victims who would have to recount their harrowing experiences before foreign judges and court officials, many of whom would be male. We requested that a psychologist be assigned to the victims. The psychologist was with the witnesses and held their hands during testimony when requested. Muhimana was convicted of rape as a crime against humanity, in large part because the witnesses received psychological help before, during and after their testimonies.

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