The Treatment of the ICTR Acquitted: The “Achilles Heel” of International Criminal Justice

The following article was published in the December 2020 issue of the International Review of Contemporary Law, the journal of the IADL.

by Beth S. Lyons[1]


My paper examines the implications of the failure of international justice to act fairly in respect to those who are acquitted in international courts and tribunals.  I contend that unfair treatment of the acquitted is the “Achilles heel” of international justice, and undermines its legitimacy.

My conclusions are based principally on the Ndindiliyimana et al. (“Military II”) case, in which Lead Counsel Chief Charles Achaleke Taku and I represented one of the co-defendants, Major Francois-Xavier Nzuwonemeye, at the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania.

When our client, Major Nzuwonemeye, was acquitted by the Appeals Chamber on 11 February 2014, he had already completed the sentence of incarceration[2] for the crimes for which he was acquitted.  Today, he remains in a “safe house” in Arusha and the ICTR has refused to compensate him for the years he spent in jail.

I contend  that the absence of compensation in the ICTR or International Criminal Tribunal for the former Yugoslavia (ICTY) Statutes is not an oversight, or an act of negligence. Rather, it objectively illustrates that the presumption of guilt is alive and well in international justice.  Although compensation provisions are found in the Rome Statute (Statute) of the International Criminal Court (ICC), in Article 85, the issue of compensation continues to be a challenge to the political will which drives international justice.


In 2020 – Major Francois-Xavier Nzuwonemeye, the former Commander of the RECCE (Reconnaissance) Battalion in Rwanda in April 1994, will have completed his full sentence of twenty years, rendered by the Trial Chamber II of the ICTR, for crimes for which he was acquitted on appeal.  Today – at the time of this Conference – Major Nzuwonemeye, has lived as an acquitted person in a “safe-house” in Arusha, Tanzania for more than five years.

He is not alone.  Eleven persons,[3] including six who have been acquitted and five who have completed their sentences, live in the Arusha “safe-house.”  They are stateless, with no travel papers, and totally dependent on the U.N. for their room and board, medical services, etc.  The longest serving “safe-house” resident is Dr. André Ntagerura, who was acquitted at trial in 2004 (acquittal affirmed by the Appeals Chamber in 2006).  For the last fifteen years, he has been a “free man” on paper, but forced to live a life without freedom of movement, and other political and human rights guaranteed under international law.[4]

This situation, of being acquitted but not free, demonstrates that both the ICTR and the United Nations International Residual Mechanism for Criminal Tribunals (MICT)[5] are  shouting at the acquitted: “It is not my problem; it is somebody else’s problem.”  Objectively, the treatment of the acquitted solidifies a judicial legacy of unfairness, in a tribunal characterized by “victor’s justice” and a track record of selective investigation and prosecution, in violation of Security Council Resolution 955 (1994),[6].

In the circles of international justice, this stain on fairness of the system created in Arusha is easily forgotten.  There are efforts to “explain away” why this situation exists, but there is notably little interest and political will to remedy the situation.  The exception, of course, is the vital concern of those who are stuck in this “legal limbo” – they remain acquitted, or as persons who have already completed their sentences, but they are not free.

This  in my view, is a crisis in international justice.

In this paper, I will identify some of the more salient issues at stake in this crisis, and suggest possible ways to address this problem.


When I first thought about this paper, I wanted to move beyond “my case” and consider the situation of acquitted at other international tribunals.  My goal was to develop more general conclusions about the implications of treatment of the acquitted for international criminal justice, and some lessons (or, in U.N. parlance, “best practices”).

But, when I sat down to actually write, I realized that this would not be possible – because the ICTR acquitted face particular difficulties that are determined by the political situation and the policies of the Rwandan government.  The long-standing and continuing violations of human, civil and political rights within Rwanda and their extension by the Rwandan government into the diaspora are well documented.[7]

But, while these factors may not be typical of other courts and tribunals,[8] they clearly illustrate the problems which result when international criminal justice institutions do not act independently of politics.

The ICTR, in satisfaction of the U.N. Security Council’s “Completion Strategy,” closed its doors in December 2015, and the MICT has been established as the superseding entity – to deal with the remaining ICTR issues.  Today, the acquitted, as well as those who have completed their sentences, remain an “outstanding issue.”

Nuts and Bolts[9]

The ICTR indicted 93 individuals, of whom 62 were convicted and sentenced, 14 were acquitted, 10 were referred to national jurisdictions, three fugitives were referred to MICT, two died prior to judgment and two indictments were withdrawn.[10]  According to the Report in November 2016, presented to the U.N. Security Council by MICT President Theodor Meron, 13 acquitted and released persons[11] were still awaiting relocation in Arusha.[12]  As of February 2017, there were still 11 persons in the “safe house” and 10 persons remained incarcerated in the United Nations Detention Facility (UNDF) in Arusha.[13]  As of June 2018, 11 persons remained in the “safe house.”[14]  In May 2019,  there were nine persons in the “safe house.”[15]

Why are the acquitted[16] in this situation?

  • The possibility of acquittals was never envisioned by the Tribunal

It has been a consistent position of the ICTR, since its establishment (and articulated publicly at least since 2009) that acquittals were not considered, i.e. budgeted for, when the Tribunal was established.

In 2009, a spokesman for the ICTR, its Deputy Registrar, Mr Everard O’Donnell explained:

“The simple fact is—and there is some truth in this particular fact—that no proper provision was made for acquittal at the beginning of the setting up of the Tribunal. That much is a fact, and it’s one that we have been struggling with in the registry ever since. There was no budget for dealing with acquitted persons.”[17]

Nothing happens within the super-bureaucracy of the U.N. structure without a budget line. If acquittal had been envisioned, it would have been budgeted.

In December 2014, the then current Registrar of the ICTR, Mr. Bongani Majola, described the “legal limbo”[18] of those who were acquitted or were released after serving their sentences:

“They are in limbo, they are as good as non-existing,” Majola said, bemoaning what has emerged as a major challenge for international justice.

“In the planning, in the establishment of the tribunal, there was thought given to those convicted, but no thought to what would happen to those who were acquitted,” he said.

“It was simply assumed that they would go back to their original places. In a national system, when you are tried and   found not guilty, society takes you back, society gives you all your rights and privileges. The international criminal justice system, which is supposed to be better, actually fails  because the acquitted cannot live freely.”[19]

This position was echoed the following year – in 2015 – in an article in The East African, in which Mr. Danford Mpuliwa, the  ICTR associate information officer, again explained that the U.N. Security Council did not foresee the problem of acquittals when it created the Tribunal.  He also noted that the ICTR Statute and U.N. Security Council resolutions about the ICTR do not contain any express obligations of State Parties to relocate acquitted persons and released convicts.  He stated:

“Nobody thought that any of the accused would be freed and we are now forced to house them and feed them. We have been talking with various members states of the U.N. but most countries remain hesitant. This issue has now become extremely urgent, with the closure of the Tribunal at the end of 2015.”[20]

  • Hardly anyone thought that there should be acquittals at the ICTR

(a) The Presumption of Guilt

Acquittals were never envisioned because there is a presumption of guilt operating in the international judicial and other arenas.

Internationally recognized principles of fair trial and the presumption of innocence are not “given assumptions” in any courtroom – whether in a national or international venue.[21]  Most often, they must be litigated from the very beginning of a case, and are the “clarion call” of the Defense.  But, the reality is that especially in international courts and tribunals, these principles underlie a determination of whether the judgments are legitimate.

At the ICTR, anyone who is charged with a crime is presumed guilty, and the presumption of guilt is glued to the defendant, even after he has been acquitted.

The title of The East African newspaper article cited above[22],“ICTR genocide suspects stranded in Arusha,” illustrates the problem.    Even in 2015, when the ICTR was about to finish its work, and 14 persons had been acquitted and six had completed their sentences, some media still referred to everyone as “genocide suspects.”

For those of us who work in the criminal justice arena, it is a given that acquittals in any criminal case are a contentious matter, based on the events which occurred and the nature of the proceedings.  This is a “truism” in domestic and international jurisdictions.  But acquittals in international venues, and in particular, at the ICTR, go far beyond contentious. A few examples:

  • In response to the “Military II” acquittals of Nzuwonemeye and Ndindiliyimana, one of the co-Accused in the case, and the reduction in sentence for Sagahutu, another co-Accused in the case, the Presiding Appeals Judge, Theodor Meron, was declared to be senile by the Rwandan press.[23]
  • Shortly after, in early 2014, Rwandan civil society organizations circulated an on-line petition addressed to the President of the U.N. Security Council requesting that Judge Meron be investigated for professional misconduct, based on the Appeal Chamber’s acquittals in four ICTR cases, including the “Military II” case. The petition was publicized as a call for his resignation.
  • The heart of the petition was that the acquittals for conspiracy to commit genocide eviscerated the lynchpin of Rwanda’s narrative about what happened in 1994.[24] At the time the petition was filed in mid-March 2014, no Trial Chamber convictions for conspiracy to commit genocide had been upheld by the Appeals Chamber.[25]
  • In 2016, on the occasion of the release of two ICTR prisoners in Mali, the newspaper attacks were renewed.[26]

(b) The Pro-Conviction Bias

The presumption of guilt is alive and thrives because the “pro-conviction bias” for international crimes is a strong tenet within the “international community.”  Professor Nancy Combs, in her excellent book,[27] discusses this bias among international tribunal judges (at ICTR, SCSL[28] and Special Panels–East Timor[29]).  She found that the tribunals “operate in a fact-finding fog of inconsistent, vague and sometimes incoherent testimony that leaves them unable to say with any measure of certainty who did what to whom.”[30]  In addition, in the ICTR judgments she reviewed (through 2005), about fifty per cent involved Prosecution witnesses whose statements contained serious discrepancies.[31]

Combs links this pro-conviction bias to a lack of serious consideration of the fact-finding deficiencies which permeated the Prosecution evidence at the tribunals she analyzed.  She concludes:  “Suffice it to say at this point that the Trial Chambers’ lackadaisical attitude toward testimonial deficiencies appears to reflect a pro-conviction bias that ultimately results in the Tribunals’ exceptionally high conviction rates.”[32]  The corollary to this premise is that where there was more judicial scrutiny of fact-finding impediments, the proportion of acquittals was greater. [33]

The implications of these findings should be enough, in my view, to overcome the pro-conviction bias within the legal community, because the quality of the evidence in the Prosecution’s case is the cornerstone on which the legitimacy (or illegitimacy) of the whole proceeding rests.  It appears to me, that these findings have hardly been heeded.  It continues to be a Sisyphean task undertaken mainly by the Defense, but it is one in which a principled Prosecution, committed to equal justice and application of the rule of law to all, has a key role to play.[34]

No compensation for the Acquitted

The absence of compensation provisions for the acquitted is another of the indicia that the presumption of guilt is alive and well.

There is no legal right to compensation for an acquitted person in the ICTR (or ICTY) Statute, and hence, no remedy under the Tribunals’ jurisprudence.  An acquitted person cannot be compensated for malicious prosecution, false or wrongful imprisonment or similar causes of action.  Many have tried unsuccessfully to litigate this issue[35] and a number have filed claims for damages.[36]  But only one acquitted person, André Rwamakuba, has received compensation:  he was awarded $2000 for a breach of his right to counsel.[37]  This was a pittance which effectively ridiculed the violation of his right.

In his excellent article,[38] Johan David Michels points out a paradox: while a convicted  person at the Tribunal is compensated for time spent in custody, which results in the actuality of a reduced sentence, the acquitted person is not compensated for anything.  He argues that for policy reasons, including to “enhance the credibility and legitimacy of international criminal courts,” a compensation regimen for the acquitted makes sense.  Since lengthy detentions of the Accused are necessary, he advocates that compensation should be based on strict liability.

In the case of our client, there was extensive litigation for compensation.[39]  In February 2015, the Defence[40] filed a Motion for Compensation and Damages for Violations of the Fundamental Rights of F.X. Nzuwonemeye, pursuant to U.N. Security Council Resolution 1966 (2010).[41]  We framed our arguments as violations of international law, including the right to notice and right to be tried without undue delay.[42]  Based on ICTR jurisprudence, we argued that the Appeals Chamber had upheld the right to financial compensation for violations under the ICCPR.  The bottom line was: in the interest of fairness, the MICT possessed the legal will to fashion a remedy for the violations of Nzuwonemeye’s fundamental rights.  In his Decision, the Single Judge dismissed the motion for lack of jurisdiction.[43]  It boiled down to the finding that because the Appeals Chamber made no reference in its Judgment to a right to compensation for acquittal, there was no basis on which the ICTR could grant this.  Anticipating this problem, we had requested that the Single Judge, if not authorized to decide the matter, refer it to the Appeals Chamber.  This was not done.

The lack of a legal right to compensation and the failure to “plan for” acquittals shows that the presumption of guilt is thriving at the ICTR.



Re-location Issue

The ICTR acquitted have engaged both in individual litigation[44] as well as negotiations with the ICTR/MICT to remedy their situation.  They have repeatedly met with the ICTR Registrar and other representatives over the years, have responded to the U.N.’s queries and have directed their requests to the U.N. Secretary-General.  A letter, dated 21 April 2016, from the acquitted and those who have completed their sentences, detailing the obstacles to relocation is available at this link.  It focuses on the obligation of the MICT to care for the acquitted person until he joins his family, based on the holding of the Appeals Chamber decision in the Ntagerura case[45] that the Tribunal has a duty to ensure the welfare of the acquitted person.  It also details efforts for UNHCR protection, and urges the MICT to pressure the UNHCR to find a sustainable solution. The letter appends the conclusions of the “Expert Meeting on Complementarities between International Refugee Law, International Criminal Law and International Human Rights Law,” held in Arusha in 2011.[46]

In addition to the voices of the acquitted themselves, there have been the biennial pleas to the U.N. Security Council from all the Presidents of the Tribunal and the countless resolutions[47] passed by the U.N. Security Council for State Parties to assist in the relocation and resettlement of the acquitted and those who have completed their sentence. With a few exceptions  it continues to be an uphill battle. After extensive negotiations, a miniscule number of States Parties have accepted an acquitted person,[48] but Rwanda remains the only State Party which consistently expresses affirmative interest as a site for re-location.  And Rwanda is the one country to which none of these persons can safely return.

The acquitted and released persons repeatedly have explained their well-founded fear of persecution if re-located to Rwanda, including in their letter dated 30 April 2014 in response to the ICTR’s suggestion (during a 17 April 2014 meeting) that the acquitted and released persons return to Rwanda as part of a “come and see” program.  The eleven persons detailed the dangers for them in returning to Rwanda; the new threats from Kigali to their security while in Arusha (for example, false allegations that the acquitted persons were in contact and meeting with FDLR[49]); the fact that Rwanda was requiring that they personally request their passports in Kigali, although Rwandan government representatives had taken 4000 passports to Lusaka for Rwandans in exile there; and the continuing and worsening human rights violations within the country.  Their recommendations included:  that the ICTR should mobilize the U.N. Secretary General to be involved in relocation and especially focus on France, Canada, UK and Belgium – where their families were located; that the ICTR Registrar request a letter from the Government of Rwanda to these countries, ensuring that their bi-lateral relations with Rwanda would not be damaged by granting asylum, and that the ICTR should pressure the Rwandan government to end its serious violations of citizens’ rights, which could encourage them to return home if the situation changed.

There have also been requests regarding Tanzania, the “host country.”  In October 2015, there was a request that the ICTR intervene with the Tanzanian government to provide appropriate identity papers, resident permits and travel documents to facilitate their stay in Tanzania and their travel to and from Tanzania if re-located.  Such temporary measures are within the legal framework of Article 39 of the Agreement between Tanzania and the MICT which provides that the host country shall “facilitate the temporary stay of the released person on its territory” until the person is transferred (re-located to a third country).[50]

Most recently, in respect to Nzuwonemeye, the Defence[51] has made efforts to re-locate him to join his family in France.  In December 2018, the Defence made a motion for an order from the MICT for France, under Article 28 of the MICT Statute, for co-operation.  The Defence argued that since France was the country where Nzuwonemeye was arrested, it should now take him back after his acquittal.  His family (wife and four children) are all French citizens.  The Single Judge from the MICT denied the motion on jurisdictional grounds, holding that Article 28 did not provide the authority to impose a request upon a State.[52]  The Defence appealed,[53] and the Appeals Chamber denied the Appeal.  As in the earlier Decision, the Appeals Chamber “encouraged France to renew its consideration of Nzuwonemeye’s request to be allowed in France, under the same conditions in which he was arrested, and be given the opportunity to attempt through the proper procedures, to legalize his status in that country.”[54]  In June 2019, the Defence gave Notice of Application for French Visa to the MICT.

In both decisions, the ICTR/MICT “washed its hands” of responsibilities for the acquitted persons, using its narrow interpretation of both the MICT’s obligations and the MICT’s ability to request co-operation from domestic jurisdictions.  The conclusion to be drawn, in essence, is again that the acquitted are “not the problem of the ICTR/MICT.”

The Immigration Issues – the “Catch 22”

. Some salient issues in the area of immigration .[55] are set out below.

First, the immigration situation of a person who is acquitted, and a person who has completed his sentence is fundamentally different in the law.  A convicted person, under Article 1(F)[56] of the 1951 Convention and Protocol Relating to the Status of Refugees [57] does not meet the definition of “refugee.”  Although there is no provision for prosecution of offenses labeled as war crimes in the ICTR Statute (unlike the ICTY Statute),  the statute does designate “crimes against humanity.” Those convicted of crimes against humanity   are excluded under Article 1(F)(a).  Second, I am not clear if the “refugee” definition is not satisfied, whether the protections of Article 33[58] (“refoulement”) would be available to a person, especially when considered with the provisions of Article 33(2).

But the Guidelines on International Protection offer an opening for protection for those who are excluded under Article 1(F).[59]  An excluded person can still be granted protection or assistance from UNHCR based on other instruments, for example, the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

While the situation of the acquitted  should be more easily resolved, this is not the case.  It seems that there has been no agreement as to who is responsible, and the U.N. agencies point to the necessity of State consent.[60]  I am not sure it is correct to conclude that this is simply a “passing of the buck” between the U.N. agencies and the State Parties, since immigration laws are controlled by States.  But the end result remains the same:  the only State Party  that wants to welcome the acquitted is the one State Party where they have a well-founded fear of persecution – Rwanda.

What (else) is to be done?

The lesson from the acquittal of our client in the “Military II” case is that a legal win in the courtroom has to be fought for and won in the political arena, in order for the legal win to have any meaning on a day-to-day basis for the client.

Make no mistake: the cases at the international criminal tribunals are political cases.  The struggle in the courtroom is as much about the historical narrative as it is about culpability.  As a former ICTY Prosecutor has pointed out, “The struggle for the interpretation of historical events through the trial record might be as important in [the] long run as the determination of guilt or innocence of the individuals tried.”[61]

At the ICTR, its judgments are a historical narrative of the events of 1994.  This is the reason that the government of Rwanda has so tenaciously tried (and mostly succeeded) to exercise control over the ICTR, especially the Prosecution.

This political framework is the context in which the situation of the acquitted, and those who have been released after completing their sentences, exists.  But the acquittals in these cases are political landmines.

While recognizing this reality, the situation of the acquitted must be “de-politicized” as much as possible, and there needs to be a different ideological approach to its resolution.  To the extent this framework can be de-fused and re-shaped, there is a chance for a fair and equitable resolution.

Some working premises to provide fairness to the acquitted and those who have been released:

  1. It is necessary for the presumption of innocence to be imposed in the proceedings at international courts and tribunals;
  2. The situation of the acquitted and those who have been released is an issue of rule of law and of human rights. It is necessary to change the “terms of reference” and focus on human, civil and political rights.[62]  If we simply put this situation in a “criminal justice” box, there is no way to overcome the strong bias against those who have been charged with international crimes.
  3. It is necessary to re-frame the situation within in the “rule of law” and fairness context.[63] In a letter to the U.N. Security Council in 2011, the then outgoing ICTR President Judge Khalida Rashid Khan saw 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.[64]
  4. The international tribunals need to understand that lack of fairness delegitimizes their work, and that there is an urgency to resolve the situation. The corollary is that as the situation continues, the international justice system suffers – it loses legitimacy, standing and respect.
  5. The international courts and tribunals must aggressively ensure that the obligations on the Prosecution to fairly investigate both inculpatory and exculpatory evidence[65] are implemented in a timely manner.
  6. Requests for re-location and claims for damages have to continue to be made – as applicable – to all parties involved in the situation: the U.N. Security Council, UNHCR, the host country, the “international community.” The claims for damages must take account of the material, moral, psychological and social damages to the acquitted person and to his family.[66]
  7. The litigation route needs to be taken – if only to exhaust all remedies underneath – in national and regional courts, as well as in human rights courts. Some of the “safe- house” residents have heavily litigated in these venues, but with no success.[67]
  8. In the interim, the U.N., in its obligation to implement the human rights provisions of its own treaties, needs to provide funding for family visits for those who are in the “safe-house.” This is not a “fix” obviously, but it makes it possible for the acquitted and others to be re-united, on a regular basis (if only for a short time) with their families.


  1. Meron has stated that criminal justice cannot be a synonym for convictions, and acquittals are integral as well. “When you have acquittals,” he posited, “it shows the health of the system.”[68]  But the international criminal justice system has abrogated its obligations to the acquitted.  Mr. Bongani Majola, a former ICTR Prosecutor and Registrar, said it succinctly:

“The international criminal justice system?, which is supposed to be better, actually fails these people and perpetuates the violation of their rights in the sense they cannot live freely.”[69]

This is the reason that the international justice community has to pay attention to and resolve the situation of the acquitted and the released persons who have completed their sentences.  Their continued lack of liberty remains a stain on international justice, and perpetuates a well-founded criticism that international justice has failed to ensure and implement fundamental human rights.

As lawyers, we fight the legal battles in the judicial arena, and exploit any potential opportunities for post-acquittal remedies within the ICTR/MICT Statute.  But the ultimate resolution of the situation of the ICTR acquitted (and those who have completed their sentences) is political, not legal.  The “wall” between politics and law is porous, particularly  in international courts and tribunals.  This is evidenced by “victor’s justice” at both the ICTR and the ICC, and cemented by the fact that the ICTR only prosecuted Hutus and the ICC, in its two decades, has only selectively prosecuted defendants from the Continent of Africa.

In this political context, the situation of the acquitted will ultimately be resolved through an international political campaign for justice and compensation – in communities and in States, including the Assembly of States Parties.  This idea is not novel, but it is worth repeating.[70]

International justice has a choice to make: Will it apply the rule of law to all?  And, will it be seen as being on the side of fairness and human rights, or on the side of violating those rights.  The treatment of the ICTR acquitted indicates that international justice is making the wrong choices, and losing the battle that we need to win in order to end impunity.


Acquitted persons

Dr. André Ntagerura Acquitted at trial (2004) & on appeal (2006) Safe-house
Gen. Gratien Kabiligi Acquitted at trial (12/2008) & No Prosecution Appeal Safe-house until 2019 when he is re-located to France
Dr. Casmir Bizimungu Acquitted on appeal (9/2011) Re-located to Ghana – 12/2016
Protais Zigiranyirazo Acquitted on appeal (11/2009) Safe-house
Jerome Bicamumpaka, Acquitted on appeal (2/2011) Safe-house
Justin Mugenzi Acquitted on appeal (2/2014) Re-located to Belgium
Prosper Mugiraneza Acquitted on appeal (2/2014) Safe-house
Francois Xavier Nzuwonemeye Acquitted on appeal (2/2014) Safe-house
Hormisdas Nsengimana Acquitted at trial (11/2009) & No Prosecution Appeal Re-located to Italy
Augustin Ndindiliyimana Acquitted on appeal 2/(2014) Re-located to Belgium
Andre Rwamakuba Acquitted at trial (9/2006) & Prosecution Appeal of Compensation Dismissed by Appeals Chamber (4/2007) Re-located to Switzerland
Emmanuel Bagambiki Acquitted at trial and on appeal (2006) Re-located to Belgium
Ignace Bagilishema Acquitted at trial (1st ICTR acquittal) Re-located to France
Jean Mpambara Acquitted at trial (2006); No Appeal Re-located to France



Persons released on completion of sentence

Anatole Nsengiyumva Safe-house
Tharcisse Muvunyi Safe-house
Innocent Sagahutu Safe-house
Sylvain Nsabimana Re-located to Ghana – 12/2016
Alphonse Nteziryayo Safe-house
Joseph Kanyabashi Safe-house



Expert Meeting on Complementarities between International Refugee Law, International Criminal Law and International Human Rights Law, Arusha, Tanzania, 11-13 April 2011: Summary Conclusions[71]

  1. An indictment by an international criminal tribunal or court is, on the other hand, generally considered to meet the “serious reasons for considering” standard required under Article 1F of the 1951 Convention. If the person concerned is subsequently acquitted on substantive (rather than procedural) grounds, following an examination of the evidence supporting the charges, the indictment can no longer be relied upon to support a finding of “serious reasons for considering” that the person has committed the crimes for which he or she was charged.
  2. An acquittal by an international criminal tribunal or court does not mean, however, that the person concerned automatically qualifies for international refugee protection. It would still need to be established that he or she has a well-founded fear of being persecuted linked to a 1951 Convention ground. Moreover, exclusion may still apply, for example, in relation to crimes not covered by the original indictment.
  3. Procedurally, if the asylum determination was suspended pending the outcome of the criminal proceedings, it can be resumed following the acquittal. Likewise, where the person was previously excluded on the basis of the indictment, the acquittal should be considered as a sufficient reason to reopen the asylum determination. If the indictment had been used to cancel or revoke previously granted refugee status, a reinstatement of refugee status may be called for.
  4. UNHCR’s current guidelines on the interpretation and application of the exclusion clauses under Article 1F of the 1951 Refugee Convention do not expressly address the situation where an individual indicted by an international criminal tribunal or court is subsequently acquitted. The forthcoming revised guidelines will provide clarification on this issue.
  5. In practical terms, the question of the relocation of acquitted persons who are unable to return to their country of origin due to threats of death, torture or other serious harm is a real one. The problem of such relocation of persons is not easy to resolve and this problem is expected to persist beyond the existence of the ICTR and to arise in the future for other international criminal institutions and, in particular, the ICC. At present, three out of eight individuals who have been acquitted by final judgment before the ICTR have been unable to find countries willing to accept them. It was agreed that durable solutions need to be found for those acquitted by an international criminal tribunal or court and who are unable to return to their country of origin. Indeed, this is a fundamental expression of the rule of law and essential feature of the international criminal justice system. Concern was accordingly expressed about the consequences of failing to find such solutions.
  6. The responsibility for resolving this problem does not lie with UNHCR, ICRC or OHCHR, none of which are in a position to implement a solution for the persons concerned without the consent of states. Rather, the question has to be addressed by Member States of the United Nations as part of their cooperation with and support to international criminal institutions, possibly through the establishment of a mechanism to deal with such cases, which fully respects international refugee, humanitarian and human rights law.
  7. ICTR, ICTY, UNHCR and OHCHR agreed to embark on a joint advocacy strategy with the aim of sensitizing the UN Security Council and Member States to, and finding a sustainable solution for, the plight of acquitted persons.


The situation of the Acquitted at the ICC (as of early June 2019)

To date, there have been four acquittals at the ICC.[72]  The situation of three out of four[73] of the acquitted persons at the ICC is the same as it is for the acquitted persons (and those who have completed their sentences) at ICTR.  All three – Laurent Gbagbo, Charles Blé Goudé and Mathieu Ngudjolo Chui are acquitted but not free.  Jean-Pierre Bemba Gombo was acquitted by the Appeals Chamber of charges of war crimes and crimes against humanity on 8 June 2018, and has returned home to the DRC.[74]

All of these cases illustrate that a judgment of acquittal does not mean that the acquitted person can freely walk out the door, and go anywhere.  The situation is exacerbated by the fact that acquitted persons have no papers – they are, in effect, “stateless.”  This means that the acquitted persons are not only without freedom and liberty, but are also extremely vulnerable to the national legal processes for refugees.

One example is Mathieu Ngudjolo Chui who was the first acquittal at the ICC.  He was acquitted of war crimes and crimes against humanity by the Trial Chamber II on 18 December 2012, and the Trial Chamber II also ordered his immediate release.  Two days later, on 20 December 2012, the Prosecution appealed the verdict and on 27 February 2015, the Appeals Chamber upheld the verdict of acquittal.[75]  When he was first released from the ICC Detention Center, he was not free: he was immediately arrested by the Dutch authorities since he had no residency permit entitling him to stay in the Netherlands.  He remained in a refugee detention centre until May 2013, when an appellate court in Amsterdam ordered his release.  Ngudjolo Chui was finally provided with some documentation to allow him to remain in the Netherlands during the pendency of the Prosecution’s appeal of his acquittal by the Trial Chamber II.[76]  On 7 April 2015, the Appeals Chamber, rejecting the Prosecution’s appeal, affirmed Ngudjolo Chui’s acquittal.  However, immediately following this, the Dutch authorities arrested him again and he was deported to the DRC.[77]

Recently, Laurent Gbagbo and Charles Blé Goudé[78] were acquitted of all charges of crimes against humanity by a majority of the Trial Chamber I on 15 January 2019 and ordered to be released.  The Rome Statute mandates the immediate release of an acquitted person, unless there is a finding of exceptional circumstances.[79]  The next day, the Prosecution filed an appeal.[80] The majority of the Trial Chamber I rejected the Prosecution’s appeal, finding there were no exceptional circumstances to maintain their detention and to impose conditions.  Nevertheless, after acquittal, the two men were held in the UN detention centre for a period of time, and were not immediately moved to a “safe-house.”

The Prosecution again appealed.  On 1 February 2019, the Appeals Chamber, agreeing with the Prosecution that the two men were a flight risk, set conditions, which included the surrender of all identity documents, particularly passports, to the ICC Registry.[81] These conditions were to be imposed on both upon their release to a State willing to accept them and to be able to enforce the conditions, during the pendency of the Prosecution’s appeal.  Gbagbo is in Belgium; Blé Goudé remains in The Hague.

Thus, the ICC is faring no better than the ICTR, and it is, in fact, much worse.  The reason is that ICC is setting a dangerous legal precedent by creating the notion of “conditional post-acquittal release.”[82]  The notion of “conditional acquittal” dilutes the legal authority of a judgment of acquittal.  Full stop.  And it perpetuates and institutionalizes (through jurisprudence) the ICTR violations of the liberty of the acquitted with the imposition of conditions on acquittal.

An important related issue to the dilution of the power or authority of a verdict of acquittal is the practice, within the ICC and ad hoc tribunals which permits the Prosecution to appeal a verdict of acquittal at the trial or appellate level.  While this notion is rejected in a common law jurisdiction such as the United States as a violation of the double jeopardy clause in the U.S. Constitution, some common-law jurisdictions permit Prosecution appeals on limited grounds, and civil law jurisdictions generally permit Prosecution appeals of acquittals.[83]

As to whether the ICC deals with compensation differently, it could be argued that the fact that compensation provisions were agreed upon in the Rome Statute is a step forward for the acquitted, because it provides a legal framework for compensation in Article 85, as opposed to the silence of the ICTR and ICTY Statutes.

But, it is necessary to look at the arguments and jurisprudence in compensation cases thus far.  I am aware of four ICC cases where compensation was requested: two were acquittals – Ngudjolo Chui (hyperlink) and Bemba (hyperlink); one was no confirmation of charges – Mbarushimana (hyperlink); one was for a convicted person, Mangenda (hyperlink).

Ngudjolo filed a Request for Damages, under Article 85(1) and (3).  The Trial Chamber II decision is useful for its articulation of the “grave and manifest miscarriage of justice” standard as per Article 85 (3),[84] but dismissed the Defense arguments. Bemba filed a claim for compensation and damages, under Article 85(3).[85]  A hearing was held in May 2019 before Pre-Trial Chamber II.[86]  No decision has yet been rendered.

In the Mangenda case, Jean-Jacques Mangenda Kabongo claimed he was unlawfully detained and requested compensation, pursuant to Article 85(1) for a period of about nine days (22 October to 31 October 2014). The Pre-Trial Chamber had issued a Release Order (21 October 2014) but there difficulties in finding a country to accept him and to which he was willing to go.[87]  In April 2015, Mangenda requested compensation for his unlawful detention from the President, who referred the matter to the Trial Chamber.  The Trial Chamber issued a decision in February 2016, denying the motion for compensation.[88] Mangenda appealed to the Appeals Chamber.[89] Although the Appeals Chamber rejected the Prosecutor’s arguments that the appeal was inadmissible based on Article 82(1)(d) on the merits,[90] it rejected Mangenda’s claim because it failed to “demonstrate any unreasonableness in the Trial Chamber’s ultimate determination on the lawfulness of his detention.”[91]  It held that Mangenda “failed to meet the minimum requirements of substantiation for a consideration of the merits of this ground of appeal.”[92]

Selected bibliography

“Situation des acquittés du TPIR,” Seydou Doumbia, Mali, Novembre 2009.  Me. Doumbia is a former Defense Counsel for Bagambiki, one of the persons acquitted in 2004.  He presented this paper at the ICTR Defense Conference in the Hague, and video is available at

“Freed yet without liberty:  The possibility of refugee status for former indictees at the International Criminal Tribunal for Rwanda who were either acquitted or sentenced and completed prison terms,” by Florence M. Denga, unpublished paper, 20 February 2015 available from author at

“What Happens to the Acquitted?” by Kevin Jon Heller, Leiden Journal of International Law, 21 (2008), pp. 663-680, available at

“Compensating Acquitted Defendants for Detention before International Criminal Courts,” by Johan David Michels, Journal of International Criminal Justice 8 (2010), 407-424, available at  and also HeinOnLine

“Acquittals in International Criminal Justice: Pyrrhic Victories?” by Joris Van Wijk and Barbora Hola, Leiden Journal of International Law (2017), 30, pp. 241-262.

(article on General Kabiligi’s situation by Caroline Buisman and Kate Gibson)  Rwandan Political Prisoners Support Network

[1] Beth S. Lyons is currently a defence counsel in the Ongwen case at the ICC and has represented clients at the ICTR since 2004.  I am also an Alternate Delegate to the United Nations in New York for the International Association of Democratic Lawyers (IADL), an ECOSOC NGO.  I can be contacted at  Special thanks to Major F.X. Nzuwonemeye, Chief Charles Achaleke Taku,  Morganne Ashley, Tibor Bajnovič, Linda Carter and Sara Pedroso for their assistance.

This paper was originally prepared for the IntLawGrrls 10th Birthday Conference, held in March 2017 at the University of Georgia (US) Law School.  IntLawGrrls, a website founded in 2007, provides a voice to women scholars, lawyers, policymakers, leaders, and activists on issues related to international law, policy and practice.  The paper is based on two of my previous ILG posts: Acquitted But Still Not Free at (2014) and Litigating for Compensation for the Acquitted at  (November 2015).

In June 2017, I presented the paper at a Conference on International Public Law and International Humanitarian Law, in Havana, Cuba.  The seminar-workshop was sponsored by the Cuban Society of International Law of the National Union of Cuban Jurists ( and the Faculty of Law of the University of Havana.

In June 2019, I presented the paper at the African Bar Association ( Conference, October 2019 in Monrovia, Liberia.  I updated it with Annex 3, which discusses recent acquittals at the International Criminal Court (ICC).

[2] Nzuwonemeye was arrested in France on 2 February 2000.  The ICTR Trial Chamber II sentenced Nzuwonemeye to twenty years in 2009; in February 2014, he had completed two-thirds of his sentence.  In many legal systems, a person is released after completing two-thirds of the sentence, assuming there are no disciplinary infractions.

[3] As of June 2017.  As of June 2019, there are nine persons in the safe-house.

[4] See, in Re. Andre Ntagerura, Case No. ICTR-99-46-A28, 18 November 2008, Decision on Motion to Appeal the President’s Decision of 31 March 2008 and the Decision of Trial Chamber III of 15 May 2008,  which recounts his unsuccessful litigation for the ICTR to assist in re-location and asylum in Canada.  He argued that Canada, where he chose asylum, did not respond to his request.  The Trial Chamber decision rejected Ntagerura’s argument that the Trial Chamber find that Canada failed to comply, pursuant to ICTR Statute, Article 28  (States’ co-operation and judicial assistance with the ICTR), and order it to do so.  It held that Canada, which was not the state of origin or country of residence at the time of arrest, had no obligation to “grant resident status or extend preferential treatment in the processing of such a request.”  Decision, 15 May 2008, para. 4.  In his motion for leave to appeal, Appellant argued that the Trial Chamber failed to address fair trial rights, which included a right to a complete and effective acquittal.  The Appeals Chamber dismissed the motion, finding that Appellant’s due process rights and right to liberty and freedom of movement had not been violated, and requested the Registrar to address Appellant’s concerns to UNHCR.  In 2012, Ntagerura filed a notice of intent to claim damages.  All pleadings should be available at

There is one very important paragraph in the Appeals Chamber decision which does re-affirm the Tribunal’s obligation to ensure the welfare of the acquitted person, and to not return him to a country where his life and security are in danger. Para. 19 states:

“…While the Tribunal does not have the ability to direct any State to accept the Appellant on its territory or to fully investigate whether the Appellant’s life or liberty would be at risk should he be returned to Rwanda or to another African country, it has nonetheless a duty to ensure the welfare of the acquitted person, and to that extent, to enquire whether the Appellant’s life or liberty would be at risk upon relocation to a

given country.”

[5] The MICT is also known as the Mechanism for International Criminal Tribunals.

[6] U.N. Security Council Resolution 955 (1994) established the ICTR, with the competence for the prosecution of persons responsible for serious violations of international humanitarian law in Rwanda, between 1 January 1994 and 31 December 1994 (Article 1). However, this mandate has been selectively implemented:  only Hutus have been prosecuted by the ICTR.  No Tutsis/Rwandan Patriotic Front (RPF) persons have been prosecuted, despite evidence of the systematic crimes of the RPF against Hutus, documented by the U.N. Commission of Experts (1994), Human Rights Watch, the Gersony Report (which was suppressed by the U.N.) and indictments in Spain and France.  Former ICTR/ICTY Prosecutor Carla del Ponte initiated “Special Investigations” of the RPF crimes in 2002-2003; due to pressure from Rwanda, her position as ICTR Prosecutor was not renewed in 2003.  See, “Del Ponte Says UN Caved to Rwandan Pressure,” by Steven Edwards, September 17, 2003 at

[7] See my posting at

See also, U.S. Department of State Country Reports on Human Rights Practices (in Rwanda) for 2015 which identifies the continuing violations of human rights, political and civil rights, due process, etc.  In its Executive Summary, it concludes:

The most important human rights problems in the country were government harassment, arrest, and abuse of political opponents, human rights advocates, and individuals perceived to pose a threat to government control and social order; security forces’ disregard for the rule of law; and restrictions on civil liberties. Due to restrictions on the registration and operation of opposition parties, citizens did not have the ability to change their government through free and fair elections.

Other major human rights problems reported included arbitrary or unlawful killings; torture and harsh conditions in prisons and detention centers; arbitrary arrest; prolonged pretrial detention; government infringement on citizens’ privacy rights and on freedoms of speech, press, assembly, and association; the alleged recruitment of Burundian-origin refugees, including possibly some children, to serve in armed groups in Burundi; government restrictions on and harassment of some local and international nongovernmental organizations (NGOs), particularly organizations that monitored and reported on human rights; and a small number of reports of trafficking in persons, government restrictions on labor rights, and child labor.

The most recent Human Rights Report (2018) is available at   Its Executive Summary concludes:

Human rights issues included reports of unlawful or arbitrary killings by state security forces; forced disappearance by state security forces; torture by state security forces including asphyxiation, electric shocks, mock executions; arbitrary detention by state security forces; political prisoners; arbitrary or unlawful interference with privacy; threats to and violence against journalists, censorship, website blocking, and criminal libel; substantial interference with the rights of peaceful assembly and freedom of association, such as overly restrictive nongovernmental organization (NGO) laws; and restrictions on political participation.

The government occasionally took steps to prosecute or punish officials who committed abuses, including within the security services, but impunity involving civilian officials and some members of the SSF (State Security Forces) was a problem.

In addition, see Human Rights Watch Report on Rwanda 2019 at and European Union Annual Report on Human Rights and Democracy the World 2018 – Rwanda at

[8] See, When Justice is Done – Acquitted at which states:  “Most ICTY acquitted face relatively few problems.  Bosnians, Croats, Kosovars or Serbs can typically return to any of the newly republics.  ICTR acquitted, on the other hand, face much more difficulties after an acquittal.  Fearing persecution, further prosecution or discrimination upon their return to Rwanda, they do not want to go back to their country of origin.”    Whether this conclusion about ICTY acquitted is accurate requires more research.

[9] See listing in Annex 1 of persons who have been acquitted and released upon completion of sentence living in the “safe-house” in Arusha.


[11] Released upon completion of sentence.

[12] S/2016/975; in December, 2016, two persons were re-located to Ghana.

[13] See Annex 2.

[14] S/PV.8278, 6 June 2018, p. 14.

[15] S/2019/417, Letter dated 20 May 2019 from the President of the International Residual Mechanism for Criminal Tribunals addressed to the President of the Security Council, p. 20.

[16] Both the acquitted and those who have completed their sentence face similar ideological obstacles, although the specific difficulties in re-location may be different.

[17] International Symposium, Geneva, ‘International Criminal Tribunal for Rwanda: Model or Counter Model for International Criminal Justice? The Perspectives of the Stakeholders’, Session 4, Geneva, 10 July 2009, p. 12. Available at{lang}

[18] See, Kendall and Nouwen, “Speaking of Legacy:  Toward an Ethos of Modesty at the ICTR,” American Journal of International Law, Vol. 110 No. 2 (April 2016), pp. 212-232), p. 221.

[19]Associated Free Press “Acquitted of Rwanda genocide, now left in legal limbo,” 18 December 2014, and quoted in “Freed yet without liberty:  The possibility of refugee status for former indictees at the International Criminal Tribunal for Rwanda who were either acquitted or sentenced and completed prison terms,” by Florence M. Denga, unpublished paper, 20 February 2015 available from author at

[20] “Acquitted genocide suspects stranded,” by Fred Oluoch, TEA Special Correspondent, 23 May 2015.

[21] As a career Legal Aid attorney, I can attest to this in both state and international jurisdictions.

[22] At endnote 20 supra.

[23] New Times, 11 February 2014:  “Major François-Xavier Nzuwonemeye and Captain Innocent Sagahutu acquittal and the reduction in prison sentence is more than odd, it would seem that the International Criminal Tribunal for Rwanda appeals bench has lost all touch with reality. Or to put it another way Judge Theodor Meron has. I would have to say that having a clearly senile Judge in charge of the tribunal has resulted in justice being denied to the victims of the atrocities of 1994.”  Reported at

[24] The petition stated:  “Based on the above [acquittal decisions], it is disquieting to note that in all cases it has handled, all those known and accused of planning the genocide against Tutsi, no one has been convicted of this act or planning.  Can genocide happen unplanned?”  It received very few signatures.  It had been available on the internet, maybe on website of  but I have not been able to find it again; see “Rwanda: Civil Society Sign Petition Against ICTR Judge Meron,” by Ivan R. Mugisha, The New Times, 14 March 2014; Hirondelle News Agency, “Rwanda: 20 Years after Genocide, ICTR Appeals Chamber Accused or Rubbing Salt into the Wounds, 8 April 2014.

[25] In only one case, the Gatete case, the Appeals Chamber, in a 3-2 decision, entered a conviction for conspiracy to commit genocide (2012) at the Prosecution’s request.

As of mid-March 2014, the Appeals Chamber had affirmed 3 Trial Chamber convictions and reversed 5 Trial Chamber convictions.   In the duration of the ICTR, 51 defendants were indicted for conspiracy to commit genocide (out of a total of 93 indictees).  Of these 51, the Trial Chamber acquitted 28 and convicted 11. [note:  the remaining 12 cases include fugitives, referrals to Rwanda, withdrawals by the Prosecution and defendants who died before trial was completed].

[26] See “Kagame weighs in on UN’s release of genocide convicts,” New Times, 17 December 2016 (early release of Ferdinand Nahimana and Emmanuel Rukundo by Appeals Chamber “dubious” and violates due process).

[27] Combs, Professor Nancy Amoury, Fact-Finding Without Facts, The Uncertain Evidentiary Foundations of International Criminal Convictions, Cambridge University Press: 2010, Chapters 7 and 8; see also, Lyons, Beth S., “Enough is Enough: The Illegitimacy of International Criminal Convictions:  A Review Essay of Fact Finding Without Facts,” Journal of Genocide Research, 13(3), September 2011.

[28] Special Court for Sierra Leone (SCSL).

[29] Special Panels in the Dili District Court in East Timor.

[30] Ibid., p. 174.

[31] Ibid., p. 120.

[32] Combs, p. 222.

[33] See Combs, p. 229.  In early 2015, the acquittal rate at the ICTR was about 14%, based on both trial and appeal judgments through 2013; 74 persons were tried/10 persons were acquitted. For statistical analysis of other factors in the international courts and tribunals, see, Smeulers, Hola and van den Berg, “Sixty-Five Years of International Criminal Justice: The Facts and Figures,” International Criminal Law Review 13 (2013) 7-41.

Combs also discusses the “cost” of acquittals to the ICTR in respect to the reactions of Rwanda and of victims.  She cites the example of the acquittal of Bagambiki, who was tried and convicted in absentia in Rwanda for rape, a crime for which he was not indicted and not prosecuted at the ICTR (Combs, p. 232).

Heller points out that although ICTR Statute, Article 9 (non bis idem or ne bis in idem), prohibits prosecutions in a national proceedings, based on acts which constitute serious violations of international humanitarian law, this does not extend to modes of liability.  His article explains what happened in the Bagambiki case, and is generally an excellent discussion of the situation of the acquitted and of the future ICC acquitted.  See “What Happens to the Acquitted?” by Kevin Jon Heller, Leiden Journal of International Law, 21 (2008), pp. 663-680.

[34] What constitutes a “principled” Prosecution – one which is professional and driven by law as opposed to politics – is the subject for another paper.  Theoretically, the separation of law and politics makes sense; the reality is different.  So, the question is:  what should be the relation between political and legal factors, for example, in the Prosecution’s selection of cases, and in its various other policies and practices.  In the formation of the ICC, the principle of the “independence” of the Prosecution – generally from the politics, especially of the Security Council – was an important goal, especially among many NGOs.  I supported it then, and still support it.  But, based on my work at the ICC, and the Prosecution’s selectivity of cases to investigate and prosecute, it remains a wide open question whether the Prosecution is – in fact – independent, and – more importantly – independent of what?  Whose/which politics?

It is my view that the ICC Prosecution continues to implement a policy of selective investigation and prosecution of African “situations.”  Based on its website (viewed on 7 June 2017), the ten “preliminary examinations” [the 1st level] listed involve four African countries – Burundi, Gabon, Guinea and Nigeria. But, Prosecutorial decisions taken [at 2nd and 3rd levels] reveal that nine of the ten “situations under investigation” are on the African continent; and the listing of 24 cases which are being, or have been pursued by the Prosecution involve forty defendants, all of whom are from African countries.

[35] The acquitted who have unsuccessfully litigated for compensation and damages include Bagilishema, Kabiligi, Zigiranyirazo, Nzuwonemeye and others.  Some of the pleadings are available at .

[36] Including Bagilishema, Nzuwonemeye, Zigiranyirazo, Ntagerura, Kabiligi, and others.  Pleadings available at and information available through google.

[37] The Prosecutor v. André Rwamakuba, Case No. ICTR-98-44C-T, Decision on Appropriate Remedy, 31 January 2007, available at:

[38] “Compensating Acquitted Defendants for Detention before International Criminal Courts,” by Johan David Michels, Journal of International Criminal Justice 8 (2010), 407-424, available at and also HeinOnline.  He points out that in many domestic criminal jurisdictions – Norway, Sweden, Denmark, Austria, Germany, the Netherlands, Iceland, Italy and Latvia – the acquitted accused may be compensated for the deprivation of liberty and economic loss suffered as a direct result of the proceedings against them.  In some countries, however, there is a consideration of whether the defendant contributed to his detention, for example, based on suspicious behavior or giving a false statement to authorities during the investigation.

See also,

This comment by Sysette Vinding Kruse, 25.9.2014 Copenhagen may be may be part of a report from the Danish Bar Association, I am not sure.  In Denmark, an acquitted person can claim compensation for unjust arrest or deprivation of liberty pursuant to the trial, and is entitled to monetary compensation for both actual losses the injury of deprivation of liberty.  The compensation [in 2014] per day for the injury amounts to 100-130 Euros depending on the prison conditions.

It is particularly interesting that Kruse writes:  “compensation cannot be refused on the grounds that suspicion still adheres to the accused” but there is a provision to reduce or refuse compensation if an accused has brought the sufferings on himself, by “changing explanations during the imprisonment or making false statements.”

[39] Nzuwonemeye Compensation Documents available at or at

Request for Leave to Exceed the Word Limits for Motion for Compensation and Damages for Violations of the Fundamental Rights of F.X. Nzuwonemeye, Pursuant to Security Council Resolution 1966 (2010) [“Motion”], 18 February 2015; Prosecutor’s Consolidated Response to Motion, 4 March 2015; Reply to Prosecutor’s Consolidated Response, 9 March 3015; Decision on Request for Leave to Exceed the Word Limits for Motion and Invitation to Make Further Submissions, 19 May 2015; Submission re Claim for Compensation and Damages, as requested in the Decision, 19 May 2015, Paragraph 23, 18 June 2015; Prosecutor’s Further Submission on Motion, 19 June 2015; Decision on Motion for Compensation and Damages For Violations of the Fundamental Rights of F.X. Nzuwonemeye, MICT-13-43, 3 August 2015.

[40] Counsels Chief Charles A. Taku and Beth S. Lyons and Legal Assistant Tharcisse Gatarama.

[41]Available at

[42] The Defense based its argument on the Appeals Chamber’s reversal of Nzuwonemeye’s conviction for 6(3) for the murder of the Belgian “peacekeepers,” and for 6(1) for the aiding and abetting of the murder for the Prime Minister, based on violations of notice requirements.  It argued that the undue delay was based on the length of time from arrest to judgment and sentence of approximately 11.25 years. The onus for the twenty-three month delay during the drafting stage of the Judgment was based on conduct of the Tribunal – its allocations of resources, including the workloads of the judges.

[43] Decision on Motion for Compensation and Damages for Violations of the Fundamental Rights of F.X. Nzuwonemeye, MICT-13-43, 3 August 2015.

[44] See, for example, Dr. Ntagerura’s efforts to be re-located to Canada (discussed at endnote 4 supra.), and efforts of Zigiranyirazo and others, available at or at

[45] In re Andre Ntagerura, Case No. ICTR-99-46-A28, Decision on Motion to appeal the President’s decision of 31 March 2008 and the decision of Trial Chamber III of 15 May 2008, 18 November 2008, para. 19 (“…While the Tribunal does not have the ability to direct any State to accept the Appellant on its territory or to fully investigate whether the Appellant’s life or liberty would be at risk should he be returned to Rwanda or to another African country, it has nonetheless a duty to ensure the welfare of the acquitted person, and to that extent, to enquire whether the Appellant’s life or liberty would be at risk upon relocation to a given country.”)

[46] See Annex 2.

[47] One example is U.N. Security Council Resolution 2054 (2012), which was unanimously adopted on 29 June 2012.  The U.N. Security Council called upon States Parties to cooperate and render all necessary assistance to the Tribunal in its efforts toward relocation of acquitted persons.

[48] See list in Annex 1.

[49] Forces démocratiques de libération du Rwanda (FLDR), a mainly Hutu armed group active in eastern Democratic Republic of the Congo.

[50]Agreement between the United Nations and the United Republic of Tanzania concerning the Headquarters of the International Residual Mechanism for Criminal Tribunals.

[51] Defence Counsel Peter Robinson.

[52] Decision on Motion for An Order Pursuant to Article 28 of the Statute and Other Considerations, MICT-13-43, 15-10-2018 (7-1/268bis), paras 10-12, 16.

[53] Appeal from Decision on Motion for Order to the Government of France, MICT-13-43, 17-12-2018 (295-280).

[54] Decision on the Appeal of the Single Judge’s Decision of 22 October 2018, MICT-13-43, 17-4-2019 (311-300), para 30.

[55] See, excellent paper by Florence M. Denga at endnote 19 supra. which addresses both relevant international refugee law, as well as Tanzania’s legal responsibilities.

[56] Article 1(F) defines the three categories of persons to whom the Convention does not apply, and who not fit into the definition of “refugee” and the applicable standard to be applied:

  1. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

[57] The UNHCR website has a wealth of material, including the travaux préparatoires for the Convention at

[58] Article 33 – prohibition of expulsion or return (“refoulement”).

  1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
  2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

[59] UNHCR Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, HCR/GIP/03/05, 4 September 2003 states:

  1. Although a State is precluded from granting refugee status pursuant to the 1951 Convention or the OAU Convention to an individual it has excluded, it is not otherwise obliged to take any particular course of action. The State concerned can choose to grant the excluded individual stay on other grounds, but obligations under international law may require that the person concerned be criminally prosecuted or extradited. A decision by UNHCR to exclude someone from refugee status means that that individual can no longer receive protection or assistance from the Office.
  2. An excluded individual may still be protected against return to a country where he or she is at risk of ill-treatment by virtue of other international instruments. For example, the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment absolutely prohibits the return of an individual to a country where there is a risk that he or she will be subjected to torture. Other international and regional human rights instruments contain similar provisions.

[60] Summary Conclusion, para. 46:  The responsibility for resolving this problem does not lie with UNHCR, ICRC or OHCHR, none of which are in a position to implement a solution for the persons concerned without the consent of States.

[61] Nice, Professor Sir Geoffrey, “Legal Process as a Tool to Rewrite History – Law, Politics, History,” Lecture, Gresham College, 13 February 2013.

[62] These rights include but are not limited to ICCPR – Article 6 (right to life), Article 9 (right to liberty and security of person), Article 23 (right to family) and Article 26 (non-discrimination); UDHR – Article 3 (right to life, liberty and security of person), Article 14 (right to seek and enjoy asylum in countries, free from persecution), and Article 16 (right to a family).  These individual rights are also found in many regional instruments and the obligations of State Parties to implement these rights are enumerated in the ICESCR.

[63] A few random examples:  ICTR President Judge Khalida Rashid Khan’s Report on the completion strategy of the International Criminal Tribunal for Rwanda (as at 4 November 2011), para. 67: “The Tribunal considers the resettlement of persons acquitted by an international criminal tribunal to be a fundamental expression of the rule of law and is concerned about the consequences of failing to fulfill this obligation. In the light of the imminent closure

of the Tribunal, the insufficient level of voluntary Member State cooperation and the human rights implications of the delayed relocation of acquitted persons, and in spite of the assistance of the Office of the United Nations High Commissioner for Refugees, the Tribunal has had no other choice but to call upon the assistance of the U.N. Security Council to find a sustainable solution to this issue.”

See also, Letters from ICTR and ICTY Presidents to Secretary-General K. Annan, in support of compensation for the acquitted: Letter dated 26 September 2000 from the President of the ICTR, S/2000/925 and letter dated 19 September 2000 from the President of the ICTY, S/2000/904.

[64] Watson, Benjamin, “No Refuge:  the Quandary of Resettling Suspects Acquitted by the ICTR,” 14 March 2012.

[65] This is clearly stated in the Rome Statute, Article 54(1) and Article 67, and evident in Rule 68 at the ICTR.  Rule 68 (Disclosure of Exculpatory Evidence) states:The Prosecutor shall, as soon as practicable, disclose to the defence the existence of evidence known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence.”

[66] This point is in Me. Doumbia’s paper.  It underscores that the acquitted are not alone in paying a price for their situation; it extends to their family members.

[67] These efforts need to be analyzed and reviewed.  They are available on the internet and include, for example, Kabiligi’s efforts re France and Ntagerura’s litigation re Canada.  Based on the extensive litigation for compensation in Nzuwonemeye’s case, the problem has not been “deficient” legal arguments, but the determinant influence of political considerations.

[68] Quoted from law review article by Van Wijk and Hola (see bibliography supra.)

[69] See endnote 19 supra.

[70] I remember, for example, years ago that Professor Lennox Hinds, who was one of the first – or perhaps the first – ICTR Defence counsel to go to Rwanda (he represented Juvenal Kajelijeli and later Colonel Ephrem Setako) identified the need for a political campaign for the rights of the acquitted.

[71] Complete summary conclusions available at

[72] In comparison, the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY), from 1995 to 2017, indicted 161 individuals of whom 99 were sentenced, 19 acquitted and 13 referred to domestic courts.  The United Nations International Criminal Tribunal for Rwanda (ICTR) indicted 96 individuals of whom 62 were sentenced, 14 acquitted and 10 referred to domestic courts.

[73] Upon his acquittal, Mr. Bemba was not immediately released, because he was being provisionally detained in the Bemba et al. “Article 70” case at the ICC.  Ultimately, according to press reports, he returned to Belgium and is able to travel internationally.

[74] See, The East African, 3 June 2019.

[75]  See “Acquitted But Not Free:  Life After a War Crimes Trial”, by Benjamin Duerr, Foreign Affairs, 22 July 2015.

[76] The ICC Registry appears to have been instrumental in this, after the Defence had litigated issues in reference to the initial detention of the acquitted Ngudjolo Chui.  I am not clear whether the documentation was eventually provided by the Host Country (Netherlands).

[77] For additional information on Ngudjolo Chui and other acquitted persons, see the excellent article “Acquittals in International Criminal Justice: Pyrrhic Victories?” by Joris Van Wijk and Barbora Hola, Leiden Journal of International Law (2017), 30, pp. 241-262.  They conclude that acquittal by international criminal courts and tribunals is a Pyrrhic victory, given the problems and challenges of life after acquittal:  these include treatment as “international pariahs,” lack of compensation, threat and realities of domestic prosecutions, and other issues.

[78] See “The Appeals Chamber Invents Conditional Post-Acquittal Release,” 3 February 2019, by Jon Heller at

[79] Rome Statute, Article 81(3)(c).

[80] Based on Rome Statute, Article 81(3)(c)(ii) and Article 82(3); and Rule 156(5) of the Rules of Procedure and Evidence.

[81] Judgment on the Prosecutor’s appeal against the oral decision of Trial Chamber I pursuant to article 81(3)( c)(i) of the Statute, ICC-02/11-01/15-1251-Red2, 21 February 2019, paras 59-60.

[82] See “The Appeals Chamber Invents Conditional Post-Acquittal Release,” 3 February 2019, by Jon Heller available at

[83] A full discussion is beyond the scope of this paper.  See, “Right to Appeal” by Magali Maystre, International Criminal Procedure, The Interface of Civil Law and Common Law Systems, edited by Linda Carter and Fausto Pocar, Edward Elgar Publishing, Inc. 2013.

[84] Decision on the “Requête en indemnisation application des dispositions de l’article 85(1) et (3) du Statut de Rome,” ICC-02/04-02/12-301-tENG, 16 December 2015, paras 36-48.

[85] Second Public Redacted Version of “Mr. Bemba’s claim for compensation and damages”, ICC-01/05-01/08-3673-Red2, 19 March 2019.

[86] Second Public Redacted Version of “Mr. Bemba’s claim for compensation and damages”, ICC-01/05-01/08-3673-Red2, 19 March 2019.

Under Rule 173(1), the Presidency designates a Chamber of three judges to consider a request for compensation pursuant to Article 85.  The judges “shall not have participated in any earlier judgment of the Courts regarding the person making the request.”

Here, the PTC II is composed of the same bench that rejected the Prosecution’s request to open a Preliminary Examination into the Situation in Afghanistan, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, ICC-02/17-33, 12 April 2019, available at

[87] Judgment on Mr. Mangenda’s appeal against the “Decision on request for compensation for unlawful detention,” ICC-01/05-01/13-1964, 8 August 2016, para. 2.

[88] Decision on Request for Compensation for Unlawful Detention, ICC-01/05-01/13-1663, 26 February 2016.

[89] Judgment on Mr. Mangenda’s appeal against the “Decision on request for compensation for unlawful detention,” ICC-01/05-01/13-1964, 8 August 2016.

[90] Ibid., para. 18.

[91] Ibid., para. 26.

[92] Ibid., para. 28.

All articles published in the International Review of Contemporary Law reflect only the position of their author and not the position of the journal, nor of the International Association of Democratic Lawyers.


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