Saturday, October 20, 2012

Prosecuting international crimes in Canada's national courts: Observations on Mungwarere

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post)

This past summer, I had the opportunity to monitor a unique trial while serving as an intern for the Canadian Centre for International Justice.
The defendant is Rwanda-born Jacques Mungwarere, who was arrested in Windsor, Ontario, in 2009. He is accused of genocide and crimes against humanity for his alleged role in the 1994 Rwandan genocide. Prosecutors allege that he was one of the attackers in the April 16th massacre at the Mugonero church and hospital complex, an incident in which some estimate 3,000 were killed, and of having partaken in the subsequent systematic hunting down of any Tutsis who had up until then eluded death.
The Mungwarere trial, only the second to be conducted under Canada’s Crimes Against Humanity and War Crimes Act, began in late spring in Ontario Superior Court in Ottawa. Between May and July, one American expert on Rwanda, three Royal Canadian Mounted Police investigators, and eight Rwandan witnesses testified for the Crown, as the prosecution is called in Canada. The trial was then adjourned. It resumed earlier this month, on the 9th of October, when the defense called its first witness. CCIJ continues to monitor and write about the proceedings.
I was present for the testimony of all the Crown’s witnesses.
As I sat in the courtroom, I was free to form my own opinion on the strengths of the evidence, to take note of different interrogation techniques, and to study the reactions of witnesses to different questions. The trial drew my attention to the many practical issues that arise in the exercise of universal jurisdiction.

► Even before getting to trial, the RCMP faces certain constraints in its ability to investigate crimes committed abroad.
The lead investigator in this case testified that he needed to secure the approval of foreign officials to operate on their territory, and that aides supplied by the Rwandan government were used to help locate potential witnesses in an unfamiliar land.
► There is no doubt that cultural and linguistic barriers affect investigations, and are a factor in trials as well.
Mungwarere’s trial was mainly conducted in French, although the American expert and one RCMP investigator testified in English, and one of the defense lawyers sometimes raised objections in English. The Rwandan witnesses, all but one of whom testified by video link from a hotel room in Kigali, testified in Kinyarwanda, which was translated into French for the court by the two interpreters in Ottawa. In the case of disagreement, the Crown had its own additional interpreter who could be called upon. There were also translators in Rwanda, who occasionally interjected, and the accused himself would sometimes voice concern if he thought an expression had been incorrectly translated.
The importance of precise translation in the trial of someone accused of what is commonly considered the “crime of crimes” cannot be overstated.
One aspect of the Defense strategy was to challenge the witnesses’ credibility by suggesting inconsistencies between their past statements and their testimony in court. Defense efforts were complicated by the fact that earlier translations of these statements were not always accurate.

There was, however, plenty of material for the defense to refer to during its cross-examination. The Crown’s Rwandan witnesses had previously testified about the genocide in various other contexts, such as in U.S. immigration hearings, in Dutch criminal proceedings, at the International Criminal Tribunal for Rwanda, and in the hybrid gacaca court system. The Defense pointed out when witnesses had failed to mention the name of Mungwarere (left) in prior testimony. In response, several witnesses asserted that there was no way they could have named every génocidaire they knew, because they saw so much murder. (credit for courtroom drawing)
► Indeed, all the Rwandan witnesses had survived truly horrific experiences, which they recounted in court.
Some seemed incredulous when challenged on the details of their account, or even reacted as though their character was under attack. The indignation of one of the witnesses, an 81-year-old woman, was obvious throughout her cross-examination; at one point she affirmed, with great exasperation:
'I’m not crazy!'
Another witness, after being asked about the quality of a makeshift bandage for a gunshot wound, retorted:
'You think we were on a picnic?'
In addition, some of the witnesses were confused about the roles of different people in the courtroom, and about why they were interrogated about individuals or matters that to them appeared to have little to do with their allegations against Mungwarere.
► It is remarkable that criminal trials can now be conducted with the participation of witnesses testifying from overseas. However, using video technology does have certain limitations.
In this trial, it exacerbated misunderstandings about the legal process and its actors (witnesses abroad could not see everything going on in the courtroom on the video screen), caused delay when the technology failed, and made it more difficult for witnesses to estimate distances using spatial references in the courtroom. This last aspect was especially problematic, given that many witnesses were reluctant to give numerical estimates of distances. Finally, the defense objected to the way in which witnesses were asked whether they recognized Mungwarere. The camera focused in on him, rather than the typical request to identify the accused among those present.

Concluding thoughts 
Despite these issues, there is no question that trials like that of Jacques Mungwarere are deeply meaningful for survivors of grave human rights violations, many of whom have taken refuge outside their countries of origin, in places like Canada. The domestic prosecution of atrocity crimes committed abroad is a signal of a state’s commitment to promoting accountability, deterrence, and ultimately, respect for human dignity.
The Mungwarere trial prompts reflection about how to overcome the difficulties inherent in the exercise of universal jurisdiction, and about the best way that Canada and other states can contribute to the construction of a global rule of law. It remains to be seen what kind of effect the eventual verdict, and the lessons learned in the process leading up to it, will have on the future of Canada’s Crimes Against Humanity and War Crimes Program.
To learn more about the Mungwarere trial and follow the latest developments please visit the CCIJ website. The above post is a revised version of observations originally published online for Canadian Lawyer Magazine.

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