Joseph Mpambara: A trial obscured by facts and findings When ambivalence, bias and contestation impede a Dutch judicial inquiry into mass atrocity crimes in Rwanda

(1)

Joseph Mpambara: A trial obscured by facts and findings

When ambivalence, bias and contestation impede a Dutch judicial inquiry into mass atrocity crimes in Rwanda

Edo Sturm Stud.nr. 12062049 Genocide and Holocaust Studies

Universiteit van Amsterdam Februari 2021

Word Count: 22103

Thesis supervisor: Dr. Thijs B. Bouwknegt Second reader: Prof. dr. Nanci Adler

(2)

Abstract

This study assesses the criminal trial of Rwandan citizen Joseph Mpambara before the Courts in The Hague in the Netherlands in light of fact-finding hiatuses. Eyewitness accounts used in international criminal tribunals are beset by numerous and serious flaws when it comes to fact-finding. By arguing that the same fact-finding impediments effect domestic courts when prosecuting perpetrators accused of mass atrocity crimes, this thesis is chipping in on a broader discussion about the shortcomings of testimonial evidence when upholding international criminal law. The purpose of this thesis is to fill the void of inquiry into the obstructions in proceedings in international domestic criminal trials in the Netherlands This study examined the motivations, incentives and biases of the main actors involved in the trail of Mpambara between 2007 and 2011 whether they were aware of the fact-finding pitfalls or even animated such deficiencies. For this purpose, a less structured interview strategy is adopted in which the interviewees are more participant than subjects. These interviews make up the empirical foundation of this thesis. The outcome of these interviews portray a worrisome perspective on the professionality of Dutch fact-finders. Ultimately, the case of Mpambara proved that fact-finding without facts can beset domestic fact-finders and that the ground on which the trial of Mpambara was funded, was all but solid.

(3)

For more than a quarter of a century, former Rwandan entrepreneur Félicien Kabuga had managed to evade justice by living under false identities in Africa and Europe. Kabuga fled his homeland during the final stages of the genocide against Tutsi in July 1994. Nonetheless, on May 16th_{2020 a special French police unit investigating war crimes arrested Kabuga in his}

Parisian apartment.1_{According to the indictment by the prosecutors of the United Nations’}

International Criminal Tribunal for Rwanda (ICTR), Kabuga helped orchestrate the mass murder on hundreds of thousands of Rwandan citizens, mainly Tutsi’s, by creating and funding a relentless militia in Kigali2_{and chairing a radio station (RTLM)}3_{, that broadcasted hate}

propaganda.4_{He is one of the last high profile suspects to be indicted for the mass atrocities}

in Rwanda during the violent upheaval of the 1990’s and will stand trial at the International Residual Mechanism for Criminal Tribunals (IRMCT). Due to his high profile as an alleged complicit to mass murderer, Netflix recently devoted an episode of its popular series World’s

Most Wanted to 84-year-old Kabuga.5_{According to the main prosecutor of the IRMCT, Serge}

Brammertz, the question was when and not if, Kabuga would be arrested. ‘What is important is that the victims and survivors will be heard’.6_{Kabuga is momentarily in the Netherlands,}

waiting to be tried by the UN in Arusha, Tanzania.7

As much as Brammertz’ response to the arrest encompasses the optimistic tenor of international criminal justice that is often accompanied when one of the key characters of genocide, war crimes or crimes against humanity is arrested, the upcoming trial of Kabuga raises some serious questions. These reservations, discussed in the next paragraph, relate

1_{Basillioh Mutahi, ‘Rwanda genocide: How Félicien Kabuga evaded capture for 26 years’, BBC News, 24 May} 2020.

2_{The interahamwe was a youth militia affiliated with the ruling Hutu party of president Juvénal Habyarimana,} the Mouvement révolutionnaire national pour le développement (MRND). The interahamwe became synonymous with genocide perpetrators. As political scholar Scott Straus points out, the interahamwe ‘tipped the balance of power towards killing Tutsi’s, and they spearheaded many of the attacks’, see: Scott Straus, The

Order of Genocide (London 2006), 27.

3_{Radio Télévision Libre des Mille Collines (RTLM) was a Rwandan radio station responsible for instigating a hatred} and violent atmosphere. Also Infamously known as Radio Machete.

4_{International Residual Mechanism for Criminal Tribunals (Judicial Records and Archives Database), The} Prosecutor vs. Félicien Kabuga.

5_{See: https://www.netflix.com/us/title/81013210.}

6_{Deutsche Welle, Serge Brammertz expects Kabuga trial to begin 2021, september 30, 2020.}

7_{International Residual Mechanism for Criminal Tribunals, ‘Félicien Kabuga in the Mechanism’s Custody’, 26} October 2020.

(6)

inconveniently with the optimistic rhetoric of international criminal justice that are said to affirm the rule of law, promote peace building, forge reconciliation, work like a deterrent and have the capacity to create a historical record.8_{More recently scholars have peeled off the}

lustre of international criminal justice by pointing at the inability of international criminal tribunals to achieve the goals that were attributed to them or questioning the assumption whether tribunals deter future génocidaires.9_{The record for instance of international criminal}

tribunals’ capacity to achieve reconciliation and peace-building in the former Yugoslavia and Rwanda turns out to be meagre.10

What are the reservations in the case of Félicien Kabuga? In a recent article sociologist and Rwanda expert André Guichaoua expressed his concerns about the up-coming trial. Guichaoua, who served as an expert witness in numerous ICTR trials, notices that in the investigation into the financial activities of Kabuga by the ICTR in 1995, the prosecutor had serious difficulties aligning the actus reus with the mens rea, the two legal requirements for the crime of genocide. During that inquiry the ICTR prosecutor was confronted with a lack of tangible evidence. According to Guichaoua, ’the archives from the ministries, including military spending, did not allow for links to the genocide to be established.’ 11_{Furthermore, a}

trial against Kabuga could prove a political minefield, Guichaoua warns. Given the strenuous relation between the ICTR and the Tutsi-led government of Rwanda over the recognition of the planning of the genocide years in advance, which no ICTR chamber has ever been able to establish, a trial might further fuel existing anti-international justice sentiments in Africa.12

Even more so, similar trials have suited the Rwandan government all too well by adjusting the history of the genocide into what is called the ‘RPF-truth’, expert on the Rwandan genocide

8_{Ruti G. Teitel, ‘Transitional Justice Genealogy’, Harvard Human Rights Journal, 16 (2003); Martha Minow ,}

Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston 1999); Nigel

Eltringham, ‘We are not a Truth Commission: fragmented narratives and the historical record at the International Criminal Tribunal for Rwanda’, Journal of Genocide Research 11, 1 (2009); Jennie Burnet, ‘Whose Genocide? Who’s Truth?’, in Alexander Hilton, Genocide, Truth, Memory, and Representation Durham 2009).

9_{Martii Koskenniemi, ‘Between Impunity and Show Trials’, Max Planck Yearbook of UN Law 6 (2002); Julian Ku} and Jide Nzelibe, ‘Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?’, Washington

University Law Review 84, 4 (2006).

10_{Laurel Fletcher and Harvey Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to} Reconciliation’, Human Rights Quarterly 24, 573 (2002); Marie-Benedicte Dembour and Emily Haslan, ‘Silencing Hearings? Victim-Witnesses at War Crimes Trials’, European Journal of International Law 15, 151 (2004). 11_{André Guichaoua, ‘Rwanda: What’s at stake in the Kabuga Trial’, JusticeInfo.net, October 1 2020.} 12_{Guichaoua, ‘Rwanda: What’s at stake in the Kabuga Trial.’}

(7)

and law scholar Filip Reyntjens and UN-advisor Eugenia Zorbas observe.13_{It fits the debatable}

hypothesis that the genocide of the Tutsi’s was plotted years in advance by the former Hutu government.14_{More worrisome though is the credibility of the witnesses used in such highly}

politicized trails, Guichaoua writes:

Here we should recognize the expertise of Rwandan jurists, capable of organizing intensive sessions with selected witnesses to shape evidence that is difficult to challenge because only the authorities have full access to the field and to individuals. Consequently, such eyewitness evidence is presented as fact inside a criminal tribunal.15

In general, some studies suggest that the reliability of eyewitness evidence in ad hoc international criminal tribunals is ambiguous. These studies question the accuracy of the tribunals factual determination and the consequences for the foundation of international criminal trials as useful mechanisms for determining historical truth about Rwanda, to name just one objective. Moreover, the issue of reliability of eyewitness evidence and whether trial chambers are equipped to establish the truth, has long suffered from academic inattention. Much of the discussions on international criminal law are typically focused on the abstract theory behind international jurisdiction, rather than on the accuracy of the evidence used in court.16_{This inattention is fed by the general assumption that alleged perpetrators of mass}

violence are guilty by default.17_{The bare fact that they sit in the dock affirms their guilt to}

begin with. The premise is that someone could be innocent is almost non-existent once inside a tribunal.18

The hiatus of eyewitness reliability was only recently filled by a ground-breaking research that pointed out the shortcomings of eyewitness accounts used in international criminal tribunals such as the ICTR. International law scholar Nancy Combs contends that

13_{Filip Reyntjens, ‘Constructing the truth, dealing with dissent, domesticating the world: Governance in} post-genocide Rwanda’, African Affairs 110, 43 (2011); Eugenia Zorbas, ‘What does reconciliation after post-genocide mean? Public transcripts and hidden transcripts in post-genocide Rwanda’, Journal of Genocide Research 11, 1 (2009).

14_{Omar McDoom, The Path to Genocide in Rwanda. Security, Opportunity, and Authority in an Ethnocratic State} (Cambridge 2021), 177.

15_{Guichaoua, ‘Rwanda: What’s at stake in the Kabuga Trial.’}

16_{Jennifer Lincoln, ‘Nancy Armoury Combs, Fact-Finding without Facts: The Uncertain Evidentiary Foundations} of International Criminal Convictions’, International Criminal Law Review 12, 2 (January 1, 2012).

17_{Alette Smeulers, Barbora Holá & Maartje Weerdestein, Perpetrators of International Crimes: Theories,}

Methods, and Evidence (Oxford 2019), 3.

18_{Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International}

(8)

international tribunals, such as the Special Panels, the Special Court for Sierra Leone and the ICTR, are beset by numerous and serious flaws when it comes to fact-finding.19_{As such, these}

impediments affect the tribunals’ ability to determine who did what to whom, where, and when. Almost fifty percent of the witness testimonies at the previously mentioned tribunals showed inconsistencies, proved the outcome of Combs empirical study. A large-scale review of the transcripts from the ICTR and from tribunals for Sierra Leone and Timor-Leste studied by Combs, showed that much of the eyewitness testimony’s lacked reliability.20_{One of the}

causes lies with the evidence available, she argues. In most international cases concerning mass atrocities after the Second World War, with the exception of the international military tribunal (IMT) in Nuremberg, evidence is testimonial due to the lack of written records.21

Hence Guichaoua’s reservations concerning the trial of Félicien Kabuga.

While fact-finding without facts has serious implications for international tribunals, then and now, for example at the International Criminal Court (ICC), the question emerges how this conclusion reflects on national courts dealing with international atrocity crimes? The conclusions concerning inadequate fact-finding could cast a shadow over the ability by domestic fact-finders to weigh evidence when it concerns international related crimes against humanity, genocide or war crimes. Over the last two decades a handful of states have prosecuted and convicted foreign war criminals and génocidaires who are residing within the boundaries of these countries based upon the principle of universal jurisdiction.22_Belgium,

Canada, Germany, Great-Britain, France, the Netherlands and other nations, have put Rwandan citizens on trial before a domestic court for their alleged complicity in the genocide of 1994.23_{But the numbers are relatively small.}24_{To this day only two Rwandan citizens have}

19_{Combs, Fact-Finding Without Facts, 11.} 20_{Idem, 10.}

21_{See International Residual Mechanism for Criminal Tribunals, Prosecutor vs. Kayishema and Ruzindana,} ICTR-95-1-T; Thijs B. Bouwknegt, Cross-examining the past. Transitional justice, mass atrocity trials and history in

Africa, (PhD dissertation, University of Amsterdam, 2017), 13.

22_{William A. Schabas, ‘National Courts Finally Begin to Prosecute Genocide, the ‘Crime of Crimes’’, Journal of}

International Criminal Justice 1, 1 (2003), 56.

23_{Damien Vandermeersch, ‘Prosecuting International Crimes in Belgium’, Journal of International Criminal Justice} 3, 2 (2005); Benjamin Duerr, ‘Spotlight on Germany’s War Crimes Unit’, JusticeInfo.net, January 10 2019; Kevin Rawlinson, ‘Met Police investigate five men over Rwandan genocide claims’, The Guardian, 9 April 2019; Helen L. Trouille, ‘France, Universal Jurisdiction and Rwandan génocidaires: The Simbikangwa Trial’, Journal of

International Criminal Justice, 14, 1, (2016); G. Best, ‘Fair and Accurate Fact-Finding in Dutch Atrocity Crimes

Cases’ (PhD dissertation, University of Amsterdam, 2016).

24_{Nancy Amoury Combs, ‘Seeking Inconsistency: Advancing Pluralism in International Criminal Sentencing’, The}

(9)

been put to trial in the Netherlands for their role in the genocide.25_{One, Yvonne}

Ntacyobatabara (also known as Yvonne Basebya), was sentenced in 2013 by the District Court in The Hague to almost seven years imprisonment for instigating genocide.26_{Basebya died in}

2016. The other, Joseph Mpambara, was sentenced to life imprisonment by The Hague’s Appeals Court in 2011 for war crimes during the Rwandan genocide.27_{Joseph Mpambara is}

the focal point of this thesis. The Case of Joseph Mpambara

How did it come about that a Rwandan, Joseph Mpambara, was brought before a Dutch court and not the ICTR, which enjoyed initial primacy over domestic courts and could ask domestic courts to transfer cases to the ICTR?28_{Why was he not tried for genocide, which was the key}

crime in Rwanda in 1994 and of which he was initially suspected? When the Dutch Public Prosecutions Services (Openbaar Ministerie) notified the prosecutor of the ICTR in 2006 that it held Mpambara in custody on the basis of alleged participation in mass atrocities, the ICTR informed the Netherlands that is did not want to exercise its mandate in this case.29_Because

of the wish of the UN Security to complete the work of the Rwanda tribunal, there was no appetite for new cases. Secondly, because the Netherlands had no extradition treaty with Rwanda, the decision was made to bring Mpambara before a Dutch court.

Dutch courts have long and actively contributed on the development of persecuting international crimes.30_{Historically two periods stand out as era’s when Dutch courts found}

themselves involved with international crimes. One was the prosecution of war crimes as a result of the Second World War and the other, which is still ongoing, is related to the ad hoc tribunals and its successors.31_{It is important to note here that only with the implementation}

25_{For the purpose of this thesis I have excluded the 1F-cases in the Netherlands. War crimes among others are} classified under Article 1F of the UN Refugee Convention. Persons who are suspected of such crimes can be excluded from protection. In total three Rwandans were extradited to Rwanda for their role during the genocide, see the rapport (In Dutch) ‘Opsporing, Vervolging en Berechting van Internationale Misdrijven in Nederland’,

https://www.rijksoverheid.nl/documenten/rapporten/2019/10/16/tk-bijlage-niod-onderzoeksrapport-gespecialiseerde-officier-van-justitie-voor-de-vervolging-van-is-strijders-voor-genocide. 26_{The Hague District Court, Case against Yvonne Basebya, March 1, 2013.}

27_{The Hague Court of Appeal, Case against Joseph Mpambara, June 7, 2011.} 28_{See article 8 (2) of the ICTR statute, https://legal.un.org/avl/pdf/ha/ictr_EF.pdf.}

29_{Larissa van den Herik, ‘A Quest for Jurisdiction and an Appropriate Definition of Crime. Mpambara before the} Dutch Courts’, Journal of International Justice 7 (2009), 1118.

30_{Larissa van den Herik, ‘The Dutch engagement with the Project of International Criminal Law’, Netherlands}

International Law Review 57 (2010), 304.

(10)

of the Rome Statute of the ICC in Dutch law on October 1 2003, Dutch courts became competent to exercise universal jurisdiction over international crimes (genocide, crimes against humanity, war crimes, torture, enforced disappearances, and the crime of aggressions) if the suspect or victim is Dutch or present on Dutch soil. Before 2003, only war crimes, torture and terrorist acts could be prosecuted under universal jurisdiction. Retroactive prosecution on the basis of the ICC Implementation Act was ruled out. As international law scholar Larissa van den Herik points out, the absence of international jurisdiction for genocide for crimes committed before October 1, 2003 left the court with a challenge in the case of Mpambara since the prosecuting office had decided to add genocide to the charges as a consequence of the ICTR’s rejection.32_{As a result, in its preliminary sentence in 2007, the court}

in The Hague argued that it had no jurisdiction.33

The jurisdictional question became subject of debate. When Mpambara was convicted in 2009 by the district court of The Hague for torture during the genocide in 1994, he was acquitted of war crimes because of the lack of sufficient nexus between the crimes he had committed and the armed conflict.34_{Mpambara did not escape unpunished though; he was}

sentenced to 20 years imprisonment for torture.35_{Two years later after both the prosecuting}

office and his lawyer filed an appeal, the Court of Appeal in The Hague came to a diametrical different verdict. It found Mpambara guilty of war crimes stating that there was close cooperation between the civil authorities and the military.36_{Although a civilian, the judges}

found Mpambara had ordered Rwandan military to commit mass atrocities. Ultimately, he was sentenced to life imprisonment. ‘We had to pioneer, so to speak’, recollects public prosecutor Nicole Vogelenzang, currently responsible for prosecuting international crimes.’37

International law scholar Harmen van der Wilt argues that the different findings of both courts were confined between flexible and broad parameters leaving enough room for interpretation. Hence the two different conclusions of both courts.38_{The other aspect of}

32_{Van den Herik, ‘A Quest for Jurisdiction’, 1119.}

33_{The Hague District Court, Preliminary in the case against Joseph Mpambara, June 24, 2007.} 34_{Van den Herik, A Quest for Jurisdiction’, 1118.}

35_{The Hague District Court, Case against Joseph Mpambara, March 23, 2009.} 36_{The Hague Court of Appeal, Case against Joseph Mpambara, June 7, 2011.} 37_{Interview Nicole Vogelenzang, Rotterdam, May 29, 2019.}

38_{Van der Wilt, ‘War Crimes and the Requirement of a Nexus’, 1124. Van der Wilt draws a comparison between} the Mpambara-case and the Kunarac-case. In the later the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) found that the alleged crimes were committed in the context of an armed conflict and that they were ‘closely related’ to the hostilities occurring in other parts of the territories controlled by the parties to the conflict. Van der Wilt furthermore states that the Appeals Chamber identified a

(11)

jurisdiction that has been questioned, has been the lack of universal jurisdiction to try genocide committed prior to 2003 in the case of Mpambara.39_{While this is an observation}

made with hindsight, the outcome of the Mpambara trial on the other hand risks being detached from the historical background, Van den Herik argues. ‘This case resulted in a conviction that does not capture the facts of the case adequately as it does not refer to the broader genocidal context in which the crimes took place.’40_{Elaborating on Van den Herik,}

there is another worrying conclusion to be drawn here: international criminal trials and their records should be treated with certain caution. They ‘may lead to historically impoverished narratives.’41

The question about the reliability of witnesses in Dutch courts when exercising extraterritorial jurisdiction is one that has been hardly examined by scholars. While Van den Herik mentions that this problem lies at the foundation of domestic criminal law, she limits her conclusion to an optimistic view that a ‘future common international law system could bridge this problem, as well as answering other questions.42_{A much more critical stand takes}

lawyer and legal scholar Gaetano Best. In his PhD dissertation Best has examined both the cases of Mpambara and Basebya on the question of witness reliability. The witness examinations are not a ‘panacea’ to the question of credibility of witness evidence, he asserts.43_{Best bases his conclusion on his findings on the witness evidence credibility}

assessment scheme that was used by both courts to guarantee evidentiary guidelines: Neither the district court nor the court of appeal went so far as to introduce rules of evidence gathering that could be said to be instrumental for properly assessing some of the aspects included in the scheme. The fact that both courts of fact shied away from formulating a single, binding rule is a clear indication that the introduction of the scheme did not lead to a more stringent approach on the part of courts of fact in assessing the credibility of international witness evidence in atrocity crimes cases.44

number of parameters to determining whether or not the act in question is sufficiently related to an armed conflict including the facts that the perpetrator is a combatant, the victim is a non-combatant, the victim is a member of the opposing party, the act may be said to serve the ultimate goal of a military campaign and that the crime is committed as part, or in the context, of the perpetrator’s official duties’.

39_{In an addition to the Dutch international crimes law or wet internationale misdrijven (WIM), it was decided in} 2011 that the Netherlands also has universal jurisdiction for genocide committed from October 24, 1970. See:

Staatsblad van het Koninkrijk der Nederlanden, https://zoek.officielebekendmakingen.nl/stb-2011-605.html.

40_{Van den Herik, ‘A Quest for Jurisdiction’, 1127.}

41_{Bouwknegt, ’The Trial Record as Historical Source’, 131.} 42_{Van den Herik, ‘A Quest for Jurisdiction’, 1131.}

43_{Best, ‘Fair and accurate fact-finding in Dutch atrocity crimes cases’, 126.} 44_{Idem, 127.}

(12)

In light of this credibility gap, it should be noted that aside from the Team Internationale Misdrijven (TIM), the District Court that is the exclusive body in the Netherlands to try cases of international crimes, and that it is restricted in its operations. Since Dutch legal rules permit only the examining judge to hear witnesses outside the court (in Rwanda for instance), the trial judges do not hear the witnesses themselves or visit the locations of the alleged crimes.45

They fully depend on witness credibility based on the findings of the investigators. The other observation is that during the pretrial phase only the investigation initiator, being the special public prosecutor, weighs the information whether to prosecute or not. With hardly any checks and balances in place during this phase, ‘judicial oversight of the prosecutor’s activities is minimal’.46

While there is an abundance on case material deriving from international tribunals, domestic trials, such as Mpamabara’s case in the Netherlands, have received only limited consideration by scholars. 47_{One reason for this lack of attention could be the language gap,}

according to jurist Nancy Combs.48_{This observation though does not imply that domestic}

cases are without contestation. One objection, certainly from the public’s view, are the considerable costs involved in the pre-trial investigation and the trial itself.49_{From a practical}

point of view there is the question about evidentiary limitations. As Best points out in his research on the fairness of proceedings of Dutch atrocity crimes, all the evidence that could ‘potentially exonerate the defendant in atrocity crimes cases is situated on foreign territory.’50

In line with this conclusion is the outcome of another research, Gerede Twijfel.51 _Gerede Twijfel (Reasonable Doubt) is the name of graduate student project of the Law Faculty of the Vrije Universiteit in Amsterdam. This project delves into Dutch judicial errors. The findings of these projects are published as is the case with the inquiry into Joseph Mpambara. This graduate law project showed that witness testimonies in the case of Mpambara raise concerns

45_{Witteveen, ‘Dealing with Old Evidence in Core International Crimes Cases’, 102.} 46_{Best, ‘Fair and accurate fact-finding in Dutch atrocity crimes cases’, 212.}

47_{Max L. Rettig, ‘Transnational Trials as Transitional Justice: Lessons from the Trial of two Rwandan Nuns in} Belgium’, Washington University Global Studies Law Review, 11 (2012).

48_{Nancy Combs, email message to author, October 30, 2020.}

49_{Minna Kimpimäki, ‘Genocide in Rwanda – Is It Really Finland’s Concern?’, International Criminal Law Review} 11 (2011), 173.

50_{Geatano Best, Fair and Accurate Fact-Finding in Dutch Atrocity Crimes Cases (PhD dissertation, University of} Amsterdam, 2016), 3.

(13)

about the reliability of the witness as with the interference by the Rwandan authorities when Dutch police and investigators questioned these witnesses in Rwanda and elsewhere.52_These

are worrying conclusions as they raise doubts about the fairness of the evidence and put the spotlight on the ability of domestic courts and the prosecution office whether they are fully equipped for accurate fact-finding when prosecuting alleged perpetrators of international crimes. For the Netherlands especially, playing a pioneering role in the coming of age of international law, the outcome of both inquiries shows the limitations about the capability of its legal system to detect testimonial deficiencies when dealing with crimes related to genocide, war and crimes against humanity.53

Research questions

This study contends that the fact-finding pitfalls are not limited to international tribunals. Rather, this thesis argues that domestic courts and fact-finders are beset by the same drawbacks when prosecuting alleged perpetrators of wars crimes, genocide or crimes against humanity. This argument is the focus of the central question for this thesis: to what extent have fact-finding impediments played a role in the outcome of the atrocity crime trial of Joseph Mpambara? The dynamics of this trial, its incentives, the consequences, as well as the motivations and incentives of the main actors involved in the trial, and the usability of Combs theory are brought together by asking three interrelated sub-questions. First, how to understand the theory of fact-finding without facts; it this angle of approach helpful in getting a better view on the problematic nature of international crimes cases before domestic courts? Secondly, what specific fact-finding issues arose in the Mpambara case? And thirdly, were political and personal incentives involved in the case of Mpambara? Both Combs and historian Bouwknegt argue that a pro-conviction bias by judges and prosecutors is more often the case than not when dealing with international crimes.54

52_{Gabi de Bruïne, Anita de Boer, Talitha, Dehaene, Annelies Vredeveldt and Peter van Koppen, Een Rwandees}

kaartenhuis. Een wirwar van wankelende verklaringen (Den Haag 2017).

53_{Best, ‘Fair and Accurate Fact-Finding in Dutch Atrocity Crimes Cases’, 1.}

54_{Combs, Fact-Finding Without Facts, 224; Thijs B. Bouwknegt, ‘Investigating International Crimes: Pitfalls,} Problems and Promises’, in Quality Control in Criminal Investiagtio, Xabier Agirre, Morten Bergsmo, Simon de Smet and Carsten Stahn ed. (Florence 2020), 71.

(14)

The dilemma of fact-finding is not confined to international tribunals. Several scholars have pointed out that the same impediments apply to domestic courts.55_{However, there is}

to my knowledge only one study that has tried to fill the void of the obstructions in proceedings in international domestic criminal trials in the Netherlands.56_{Best’s study though}

mainly examines the legal-technical approach the Netherlands has taken when prosecuting perpetrators of mass atrocities. A historical case study that delves into one of the few domestic trials in the Netherlands has yet to be conducted. This thesis aims to do just that: fill this gap in research by using the genre of microhistory, and experience in investigative journalism and applying this to the case of Mpambara. The object of this journalistic investigation is to establish empirical facts, while the benefits of microhistory are pointed out eloquently by the Italian micro-historian Giovanni Levi:

Micro-historians have concentrated on the contradictions of normative systems and therefore on the fragmentation, contradictions and plurality of viewpoints which make all systems fluid and open.57

Investigative journalism has a leverage over other methods of inquiry such as structured interviews as it could answer the forensic, factual questions as to what, who, when, where and how within the limitations related to a thesis. By applying both approaches – a microhistory based on the outcomes of investigative journalism – this thesis aims at new verifiable conclusions in the trial of Mpambara. In the following paragraph this study elaborates on the methodology used.

Sources and methodology

This thesis unpacks the questions of fact-finding without facts by looking through a domestic lens. While most historical sources tend to be secondary, the trial of Mpambara offered the author the opportunity to collect the sources first-hand as most of the main fact-finders in this particular case, as Mpambara himself, were willing to tell their experiences. Therefore the

55_{Best, Fair and Accurate Fact-Finding in Dutch Atrocity Crimes Cases; Martin Witteveen, ‘Dealing with Old} Evidence in Core International Crimes Cases: The Dutch Experience as a Case Study’, in: Morten Bergsmo and Cheaw Wui Ling, Old Evidence and Core International Crimes (Beijing 2012).

56_{See Best, Fair and Accurate Fact-Finding in Dutch Atrocity Crimes Cases:}

57_{Giovanni Levi, ‘On Microhistory’, in: Peter Burke ed., New Perspectives on Historical Writing (Pennsylvania} 1991), 107.

(15)

primary sources used in this thesis are twofold: they consist of written sources and oral sources. These written sources mainly contain court records because these provide an useful view on how domestic courts, the prosecuting office (Openbaar Ministerie) and the defence value witness evidence. It should be noted that these records are not without contestation as numerous scholars have pointed out to textualization of trial records.58_{The second primary}

source comprises of several interviews I conducted, as has been mentioned. Fred Teeven (public prosecutor at the time of Mpambara’s inquiry), Martijn van de Beek (former police officer and team manager of Team International Misdrijven, for here on: TIM), Nicole Vogelenzang (currently public prosecutor responsible for Team International Misdrijven), René Elkerbout (judge at Mpambara’s trial), Frank de Wilde (investigator for the Dutch immigration service, or IND) and Gabi de Bruïne (PhD candidate and co-author of Gerede

Twijfel), offered their insights on the trial. These interviews convey the motivations,

observations, thoughts and hindsight of those involved in the case of Mpambara and may fill in the proverbial blank dots eminent in trial records. For this purpose I used the so-called less structured interview strategy so that the interviewees were more participants than objects.59_{The interviewees were asked to reflect on their understanding of their (judicial)}

function in relation to the necessity of international law in a domestic court and how they shaped their decisions. Chapter 3 will go into details of this methodology. The interviews were conducted over a period of six months during 2019 and 2020. While Joseph Mpambara was interviewed on several instances because of the limited visiting hours in prison, the others subjects were only once questioned. Mpambara and none of the other subjects for this thesis spoke ‘off the record’ or pleaded for a pause to express personal opinions or asked to exclude certain sentences or passages from the transcripts. As all of the subject speak Dutch, the interviews were accordingly held in Dutch. Mpambara who has been living in the Netherlands since 1998 was comfortable speaking in his third language, Dutch.60_{For the purpose of this}

thesis, the statements and accounts are translated by the author into English.

58_{For an overview of the ‘tendency to textualize’ international tribunals, see Nigel Eltringham, Genocide Never}

Sleeps. Living Law at the International Criminal Tribunal for Rwanda, (Cambridge 2019), 5-8.

59_{Barbara DiCicco-Bloom and Benjamin F. Crabtree, ‘The Qualitative Research Interview’, Medical Education 40,} 4 (2006), 314.

60_{Apart from speaking Kinyarwanda and French, Joseph Mpambara speaks fluently Dutch. He therefore} abstained from using an interpreter during his trials.

(16)

Oral history offers rich and in-depth source material. It can unveil the human and personal views of people in comparison to the written records. Historian Rémy Limpach recently showed in his comprehensive research into Dutch war crimes during the independence war in Indonesia from 1945 to 1949 that oral history, when used with certain restraint, can be a useful addition to official sources.61_{But oral history is not a means to an}

end. There is a long and during debate among historians about its limitations, pitfalls and challenges. Ever since its first uses in social history a debate is going on about its ‘myriad ethical grey zones’.62_{One of these ‘grey zones’ is the assumption that a testimony represents}

a pure distillation of past experience.63_{Even experienced scholars who engage in oral history}

get confronted with preservations. For instance, oral historian Erin Jessee who conducted interviews and ethnographic fieldwork in Rwanda and Bosnia as part of her PhD-research on genocide found herself confronted with critical dilemma’s. The biggest difficulty was her desire to minimize harm to her informants, which impeded her inquiry.64_{Even more so,}

worried about possible repercussions for the participants, Jessee was reluctant to publish her findings as a result of politized conditions in nowadays Rwanda. The discussion about the limitations of oral history is mainly fought on two different levels, one is on the technical aspects and the second is on the ethical reservations as we have just seen. The former reservations have much to do with memory itself. One is that with the passage of time human memory is ‘leaking’ so to speak.65_{Yet oral history should not be disregarded for its initial}

shortcoming. Oral evidence requires critical evaluation like any other form of evidence, and it must be deployed in conjunction with all the other available sources.66

Thesis outline

As follows from the main research question this thesis is divided into three chapters that align with the sub-questions. In chapter 1 this thesis examines Combs’ theory since it forms the lens through which the following chapters will be analysed. After a brief introduction, this chapter

61_{Rémy Limpach, De Brandende Kampongs van Generaal Spoor (Amsterdam 2016), 43.}

62_{Anna Sheftel and Stacey Zembrzycki, ‘Who’s Afraid of Oral History? Fifty Years of Debates and Anxiety about} Ethics,’ The Oral History Review 43, 2 (2016), 339.

63_{John Tosh, The Pursuit of History (Oxon/New York 2015), 274.}

64_{Erin Jessee, ‘The Limits of Oral History: Ethics and Methodology Amid Highly Politicized Research Settings,’ The}

Oral History Review 38, 2 (2011):p 288.

65_{John W. Shepherd, Hadyn D. Ellis and Graham M. Davies, Identification Evidence: A Psychological Evaluation} (Aberdeen 1982), 80-86.

(17)

begins by looking at the theory from a macro perspective. The theory of fact-finding without facts argues that international ad hoc tribunals are beset by limitations of witness accounts. Another hiatus is the inconsistencies of witness accounts which raise serious questions about the outcomes of the trials such as the ICTR. These will be examined. So will be the academic critique on Combs findings. From there on this thesis sets about extrapolating Combs’ theory by discussing the relevance for the specified case of Mpambara and why this angle of approach is helping to get a better view on the problematic nature of international crimes in domestic courts.

The second chapter offers an in depth analysis of the criminal trial of Mpambara. The purpose of this chapter is to evaluate the problematic issues concerning this specific Dutch criminal case by using the theory of fact-finding. After a short introduction, this chapter will give a summary of the historical context of Mpambara’s life and the intertwining of this Dutch criminal case with international law. This chapter will then look into the fact-findings by the investigators and the testimonies of the witnesses. These witness accounts were presented in court as hard evidence in the case of Mpambara. But are they? Numerous questions surround the reliability of the witness evidence as the Gerede Twijfel-project proved. As such I will apply three significant factors to this case that are coined by Combs and that are likely to create factual uncertainty at trial. Finally, this chapter analyses the role of the Rwandan government for suppling witness testimonies.

The third and final chapter contemplates personal and political incentives that have influenced in the criminal case of Mpambara. To explicate such latent motivations, several interviews were conducted with members of the Dutch legal system upholding international law. As these interviews voice the personal views regarding the criminal case of Mpambara as well as the macro perspectives of prosecuting genocidaires, analysis of these personal accounts will assess to which extent the judicial powers are beset by biased views. These accounts may underline Combs’ pro-conviction bias theory. This chapter delves into several factors that contribute to that bias. One is the domestic and international politics involved. The second factor is the personal view of the judges, public prosecutors as well as those of the investigators. This thesis explores both factors as they enhance the pro-conviction bias. The third factor that is examined is what is called the organizational liability. The alleged membership of Mpambara of an extremist paramilitary group could explain the gap between the problematic testimony’s and his conviction as it makes the defendant culpable by default.

(18)

This is finalized by arguing that the outcome of the Mpambara case may have been influenced by a pro-convictional bias.

(19)

Chapter 1: Fact-Finding without Facts: ramifications for domestic courts

This chapter examines Nancy Combs’ theory of fact-finding without facts since it forms the lens through which the next two chapters (on the trial of Mpambara, and one on the political and personal incentives in this specific criminal case) will be analysed. After a brief introduction on the ambiguousness of witness evidence in criminal trials, this chapter begins with an in-depth discussion on ‘fact-finding without facts’. As Combs argues that ad hoc international criminal tribunals are beset by limitations of fact-seeking and fact-finding, it is essential to contemplate the components that form the basis of her claim. One of the questions for instance, is whether, and if so to what extent, inconsistencies in witness accounts influenced the outcome of trials at tribunals such as the ICTR? This chapter then turns its attention to the academic critique on Combs findings, including possible repercussions for ongoing trials before the ICC. From there on this thesis sets about extrapolating Combs’ theory by discussing the relevance for domestic courts and why this angle of approach is helping to understand the problematic nature of international crimes in domestic courts.

The ambivalence of international law

... blunders of errors of varying gravity that effected procedure, scheduling, the quality of evidence, and the coherence of the tribunal’s objectives.67

In his thorough analysis of the prelude of the 1994 Rwandan genocide against Tutsi, André Guichaoua rebukes the structural failing of the ICTR after it had to ‘prioritize efficiency and output’ in the early 2000’s as part of the tightened ‘parameters’ set by the UN Security Council.68_{Pitfalls such as lack of quality evidence, are however no exclusive domain for ad hoc}

tribunals. I witnessed several confronting scenes in Dutch courts as well. One was the case against Rwandan citizen Venant Rutunga, who was arrested by Dutch police in 2019 and who objected to his extradition to Rwanda because of alleged genocidal related crimes.69_{I watched}

67_{Guichaoua, From War to Genocide, 296.} 68_{Idem, 296.}

(20)

as a Dutch interpreter stuck her head out of the door opening of the isolated cabin at the back of the court room in The Hague, urging the Dutch judge to slow down the pace of her questions for the accused. Throughout the trial, this Dutch interpreter had difficulties translating communications between the judge and the Rwandan accused. More than once the judge asked the defendant if he was comfortable speaking French. Rutunga shook his head in reply, adding only more confusion to the surreal misunderstanding between judge, accused, prosecution and defence. Words seemed to get lost in translation. I witnessed this scene during the appeals case in 2019 of Rutunga who objected to his extradition to Rwanda by the Dutch government.70

During the trial of Fabien Neretsé before the Hof van Assisen (court of assizes) in Brussels in the fall of 2019, I was again confronted with the limitations of a domestic court dealing with genocide-related crimes. Neretsé has been accused of murder and complicity during the genocide in 1994. I observed how one Rwandan eyewitness had seemingly lost track of time and place of where he was. Moreover, some of the witnesses were busier in trying to keep warm and battling the November cold inside the freezing and decaying court, than with the proceedings itself. As for the twelve layman (Belgian courts use a jury in major international crimes cases) that had to sit through weeks of testimonies from nearly one hundred Rwandan witness’ statements and numerous files, weariness was visible. Some jury members looked more attentively at their smart phones than at the proceedings themselves. Neretsé was eventually convicted for crimes related to genocide in Rwanda in 1994. He was given 25 years imprisonment.71

These observations left me wondering about the capacity of domestic courts to genuinely deal with international atrocity crimes. On top of that, having interviewed key participants at one or more domestic trials on the possible limitations of genocide trials, added only to my disbelief whether truth is being fully served inside a court room.72_{The views and}

70_{It must be noted that Rutunga is still in Dutch custody while waiting further proceedings. Rutunga has been} accused of supplying machetes to kill Tutsi citizens and organizing their killing. See: The Hague District Court, Case against Venant Rutunga, May 23, 2019.

71_{Thijs Bouwknegt, Tricky Task for Belgian Jurors to Judge a Rwandan for Genocide, (December 17, 2019); Un}

Rwandais condamné à 25 ans pour génocide, une première en Belgique, (December 20, 2019),

https://www.justiceinfo.net/fr/fil-d-actualite/43381-un-rwandais-condamne-a-25-ans-pour-genocide-une-premiere-en-belgique.html.

72_{For the purpose of this thesis, I interviewed a judge who chaired several genocide trails, two (former) public} prosecutors of the special team International Misdrijven, a former head of the international crimes unit of the Dutch police (Team Internationale Misdrijven), an investigator of the Immigratie en Naturalisatiedienst (IND: the immigration service), legal councils as well as a convicted perpetrator.

(21)

remarks of the interviewees painted at times a completely opposite picture of what international law is able to do. For example, one fact-finder said that he was more occupied with the number of arrests so he could justify the expenses TIM made, than with examining the evidence.73_{I was certainly not the first and only one who felt a sense of desperation.}74_The

ambivalent opinions on what universal jurisdiction can offer, witnesses that are no up to their task, fact-finders who are ambivalent of their tasks, or unprofessional interpreters, it all proves a much broader dilemma in international law as Combs demonstrates.

Disclosing fact-finding without facts

Nancy Combs, a professor of international law at the William & Mary Law School and director of the Human Security Law Centre, puts the ‘spotlight on a previously unilluminated aspect of international criminal justice’ in her book Finding Without Facts. The Uncertain Evidentiary

Foundations of International Criminal Convictions.75_{When Combs started a ‘lengthy’ job} reading thousands of pages of trial transcripts and judgements of the ICTR, the Special Court for Sierra Leone (SCSL) and the East Timor Special Panels for Serious Crimes (SPSC), Combs ascertained ‘that tribunals have a fair amount of difficulty receiving clear coherent testimonies from international witnesses about the events that form the basis for the inditements. There are a lot of fact-finding impediments to these tribunals.’76_{What are these impediments}

according to Combs? What are the causes? And how do tribunals (judges, prosecutors, defence lawyers) react to the fact-finding impediments they encounter? The following paragraphs provide an in-depth view accordingly. Before going deeper into the specific fact-finding impediments, it is essential to briefly elucidate what the mandate was of these three tribunals mentioned before, which mass atrocity crimes they adjudicated, and how they relate to each other.

The most significant difference between the ICTR, SCSL and SPSC is that the former and later tribunals prosecuted people responsible for genocide (and crimes such as war crimes and crimes against humanity). The SCSL on the other hand refrained from prosecuting

73_{Interview Martijn van de Beek, Almere, May 21, 2019.}

74_{See for instance T.B. Bouwknegt, Cross-examining the past, 15, and Thierry Cruvellier, The Master of}

Confessions. The Making of a Khmer Rouge Torturer (New York 2014), 77.

75_{Combs, Fact-Finding Without Facts, 366.}

76_{Nancy Combs quoted at a seminar at the Oxford University Centre for Socio-Legal Studies, March 23, 2013,} about her book Fact-Finding Without Facts, https://podcasts.ox.ac.uk/factfinding-without-facts-uncertain-evidentiary-foundations-international-criminal.

(22)

genocide. It did also prosecute people responsible for war crimes and crimes against humanity under Sierra Leonean law. There are some other characteristics that set these three apart. One is that the Special Panels for East Timor (SPSC) was commissioned as a result of alleged crimes committed by a foreign nation, in this case Indonesia which occupied the independent island in 1975 and established a – short - brutal regime.77_{The tribunals for Rwanda and Sierra}

Leone on the other hand were the outcome of mass atrocity crimes stirred up by civil war (1990 in Rwanda, 1991 in Sierra Leone). Secondly, of these three cases only Sierra Leone and Rwanda asked the UN to install a tribunal, while for East Timor the tribunal was initiated by the UN Security Council.78_{Yet, there is a profound discrepancy between the ICTR, SCSL on the}

one hand and SPSC on the other and that is the reliance on forensic evidence. Simply stated: there was hardly any forensic evidence in the cases of Rwanda and Sierra Leone while the SPSC had substantial forensic evidence at its disposal because of the military intervention by the UN.79_{The ICTR heard approximately 2,200 witnesses, 547 witnesses testified at the SCSL,}

while the SPSC assembled some 1,500 witness statements.80

In the outset of her book, Combs draws a clear fault-line in international criminal law between the international military tribunals just after the Second World War, in Nuremberg (IMT) and Tokyo (IMTFE), and the ad hoc tribunals for the former Yugoslavia and Rwanda since the 1990’s (ICTY, ICTR). While the first, especially the IMT, proved fertile ground for the prosecution because of the meticulous record keeping by the Nazi regime, the later trials were characterized by the hiatus of forensic evidence. The trial in Tokyo was in a sense a grim harbinger of the problems prosecutors of international crimes were about to face.81_{Much of}

the evidence that could incriminate those responsible for Japanese mass atrocities was destroyed before the trial started. Tokyo would prove not an exclusive problem. Later tribunals had to rely almost exclusively on testimonial evidence.82_{This watershed turned out}

to be problematic.

77_{Jeffrey Kingston, ‘Balancing Justice and Reconciliation in East Timor’, Critical Asian Studies, 38, 3, (2006),} 271-302.

78_{See the Residual Special Court for Sierra Leone: http://www.rscsl.org.}

79_{Mohamed C. Othman, Accountability for International Humanitarian law Violations: The Case of Rwanda and}

East Timor (Heidelberg 2005).

80_{See for numbers ICTR: https://www.irmct.org/en/about/functions/witnesses; SCSL:}

http://rscsl.org/WVS.html; SPSC: https://www.unsw.adfa.edu.au/school-of-humanities-and-social-sciences/school-of-engineering-and-information-technology/timor-companion/indictments.

81_{Yuki Tanaka, Tim McCormack and Gerry Simpson, Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited} (Leiden/Boston 2010), 155.

(23)

From here on Combs explains her thesis based on her empirical data, or in other words: trial transcripts of witness testimony given in court. What she found was that a substantial segment of the witnesses at international tribunals had profound difficulties to recollect essential facts such as dates, duration, distance, numerical estimations, two-dimensional representations or important details.83_{Moreover, Combs reviewed all of the SCSL cases and a}

handful of ICTR cases and the results showed that more than half of the prosecution witnesses’ testimony’s during trial showed inconsistencies with their previous statements (which they had given to investigators).84_{A mayor cause, says Combs, is the unfamiliarity of}

eye witnesses at ad hoc tribunals with Western-style criminal procedures:

… by using the Western trial form, international criminal proceedings cloak themselves in a garb of fact-finding competence, but it is only a cloak, for many of the key expectations and assumptions that underlie the Western trial form do not exist in the international context.85

Combs then touches upon the discrepancy between expectations of witnesses and those by fact-finders, by stating that the lingual and cultural distance between both at international tribunals is ‘so vast’ that ‘it leaves the later without a meaningful frame of reference.’86_For

example the use of interpreters (like in the example in The Hague Court’s trial of Rutanga) impairs the fact-finders’ (judges, prosecutors, etc.) ability to grasp how the witness – or suspect for that matter – is testifying, whether reluctantly or hesitantly. Another point Combs makes in relation to this cloak is that pretrial investigation narrows dilemma’s such as reliability because these investigations create the expectation of establishing background facts and providing a constructive means of testing witness accounts.87_{In other words, a}

pretrial investigation can easily exclude evidence simply because it has been left out by the witness, while during examination at trial a witness might be asked new questions relating other evidence. This expectation particularly will be addressed in the next chapter, when analysing the problematic issues concerning the trial of Mpambara.

83_{Combs, Fact-Finding Without Facts, 21-62.} 84_{Idem, 5.}

85_{Idem, 179.} 86_{Idem, 178.} 87_{Idem, 178.}

(24)

The causes for this cloak lay in the educational, linguistic and cultural discrepancies, Combs argues. Considering factors such as the level of education and literacy rates in Sub Saharan Africa, this fact is often overlooked at in criminal proceedings in tribunals.88_Witnesses

for instance, may have difficulties finding the proper words answering a question put to them, or lacking an understanding of what is expected of them in a court. Moreover, ‘those who cannot read or write are unlikely to be able to use a map and identify or verify locations where events took place.’89_{This is not a problem solely confined to tribunals, as international law}

scholar Chris Stephen puts into perspective the issues of literacy and education:

That is not to say that witnesses in Western domestic trials always attend to and convey key details. Nor is it to deny that some international witnesses do provide a clear and reasonably detailed account of the events they witnessed. But a substantial proportion do not.90

The issue of interpretation only reinforces the difficulties I witnessed myself during the trial of Rutunga. Languages that have little resemblance (for example Dutch and Kinyarwanda) can prove a pitfall inside a court for fact-finders, interpreters and witnesses as well. ‘To add to this the fallibility of interpreters, understaffing, and inadequate training and a significant problem becomes apparent.’91_{As Combs illustrates, due to the lack of interpreters at the Special Panels}

for East-Timor, it was not uncommon that six interpretations had to be made from the point at which a question was asked until the counsel received a reply.92_{Discussion about court}

room translations at international criminal tribunals is not new. Ever since the establishment of the ICTR and ICTY in 1993 and 1994, scholars have scrutinized how translation can lead to errors.93_{Moreover, they are inherent to the process, sometimes leading to the infringement}

of the rights of defendants, or worse, lead to a verdict based on faulty fact-finding.

88_{UNESCO, ‘Literacy Rates Continue to Rise from One Generation to the Next’, factsheet 45, September 2017.} 89_{Combs, Fact-Finding Without Facts, 65-66.}

90_{Ibid., 177.}

91_{Chris Stephen, ‘Nancy A. Combs, Fact-Finding Without Facts. The Uncertain Evidentiary Foundations of} International Criminal Convictions’, European Journal of International Law 22, 2 (1 May 2011), 603.

93_{See: Joshua Karton, Lost in Translation: International Criminal Tribunals and the Legal Implications of} Interpreted Testimony, Vanderbilt Journal of Transnational Law 41, 1, (2008); Ludmila Stern, ‘At the Junction of Cultures. Interpreting at the International Criminal Tribunal for the Former Yugoslavia in the Light of Other International Interpreting Practices’, Judicial Review 5, 3, (2001).

(25)

More worrying perhaps is Combs’ analysis about the ‘counternarrative’, or perjury. Based on her data she states that there was ‘a great deal of lying taking place at (some) international tribunals.’94_{A recent indictment by the International Residual Mechanism for}

Criminal Tribunals seems to confirm this claim. Currently on trial in Arusha, Tanzania are six defendants accused of interfering with justice, in particular for offering bribes, and influencing protected witnesses to recant their trial testimonies during the ICTR trial of former Rwandan politician Augustin Ngirabatware (who himself is amongst the six accused).95_Whether

deliberately, financially, ideologically, or culturally, the evidentiary uncertainty’s leaves tribunals with ‘considerable difficulty determining even the most basic facts, and that difficulty has broad implications for the incidence of perjury at the tribunals.’96_{The main}

reason that this hiatus is seldom noticed as such at tribunals, is because of the oral nature of Rwandan, Sierra Leonean and East Timorese societies, Combs claims.97_{According to her ‘these}

are cultures where people frequently report events that were recounted to them as though they personally saw them.’98_{The problem of perjury has been strikingly described by judge}

Florence Rita Arrey of the ICTR who acknowledged that ‘of course a few people have been convicted or tried by the Tribunal, but if we have to follow each person who gives a false testimony in court then we’ll hardly have any witness come because at one stage some of them will stop coming.’99

Combs also inquired into how the tribunals react to the fact-finding impediments, if they recognize the seriousness of these flaws and if they treated such evidence accordingly. Her suggestion is that in most cases trial chambers overestimate their capacity of fact-finding. Displaying a ‘cavalier attitude toward testimonial deficiencies’, tribunals are quick to dismiss discrepancies as minor mistakes.100_{Worse even is that tribunals ‘fail to find reasonable doubt}

in some of the most doubtful instances.’101_{Searching for an explanation, Combs argues that}

95_{Augustin Ngirabatware was trialed by the ICTR in 2012 for incitement of genocide in 1994. See: the} International Residual Mechanism for Criminal Tribunals, https://www.irmct.org/en/cases/mict-18-116. 96_{Combs, Fact-Finding Without Facts, 149.}

97_{Idem, 149.} 98_{Idem, 94.}

99_{International Symposium, Geneva, ‘International Criminal Tribunal for Rwanda: Model or Counter Model for} International Criminal Justice? The Perspectives of the Stakeholders’, Session 2, Geneva (10 July 2009), 65, see: www.ictr.org.

(26)

the prospect of acquittal for international criminal tribunals are ‘particularly costly.’102_Blocked

by these assumptions, international judges ‘who believe in the value of international trials, display a subconscious ‘pro-conviction bias.’103_{I will go into detail about this pro-conviction}

bias in chapter 3, when discussing political and personal incentives of fact-finders. International trials and international criminal cases are not only prestige projects, as one Dutch prosecutor told me, they are costly enterprises as well which are expected to produce results (i.e. convictions).104_{In the last two chapters of her book Combs suggests improvements}

to tribunal proceedings, including at the ICC. She advocates for well-trained interpreters, lengthy on-site visits by fact-finders, dealing adequately with perjury, but also structural procedural changes such as openness in integrating local criminal procedures and using new innovations like intermediaries.105_{The question remains whether (future) tribunals are likely}

to embrace these recommendations. As Combs concludes, ‘for it is only through an understanding of the particular evidentiary problems that an international tribunal is likely to confront what we can craft optimal procedures for that institution.’106

Dutch public prosecutor, and former chief investigator for the ICC and investigative magistrate at The Hague District Court, Martin Witteveen, made similar recommendations after being confronted with the lack of expertise by all practitioners involved in cases of international crimes on a national level.107_{Recollecting Dutch practice, Witteveen is ominous}

about:

… Dutch criminal procedural law, which does not allow trial judges to view locations where the crimes have taken place if these locations are situated outside the limits of the geographical area for which the court is competent, certainly when the locations are abroad. This leads to the extraordinary situation where the trial judges in the District Court in The Hague, who adjudicate these cases of international crimes, not only do not hear and see the witness testify, but also do not have the chance to see where the crimes took place or any other relevant location in the investigation. Instead, they rely on the transcripts of the witness hearings and how the police and the investigation judge have visualized the locations relevant to the investigations.108

103_{Stephen, ‘Nancy A. Combs, Fact-Finding Without Facts’, 604.} 104_{Interview Fred Teeven, Haarlem, June 12, 2019.}

107_{Martin Witteveen, ‘Dealing with Old Evidence in Core International Crimes Cases: The Dutch Experience as a} Case Study’, in: Morten Bergsmo and Cheaw Wui Ling, Old Evidence and Core International Crimes (Beijing 2012). 108_{Witteveen, ‘Dealing with Old Evidence’, 107.}

(27)

Dutch national law proceedings, Witteveen argues, are inept for international crimes. He furthermore emphasizes that considering the great likelihood that dated evidence is used in court because of the retrospective nature of international crimes, in particular the use of eyewitness testimony, the dilemma of old evidence should be given much more awareness by Dutch law practitioners.

Fact-finding critique

‘Groundbreaking’ was the most used qualification when Combs published her theory in 2010.109_{Most scholars welcomed the critical approach Combs took, for academic literature}

had the initial tendency of questioning ‘whether the punishment meted out by these institutions (international tribunals) actually served the classical purposes of criminal punishment.110_{Or put in a larger perspective: did these tribunals serve international justice?}

The general assumption was that tribunals did, whatever the unsatisfactory outcome, flaws or analyses were. But as Beth Lyons remarked while being a defence attorney at the ICTR, Combs findings about the ‘defective nature of evidence’ at the ICTR matched her own impressions.111_{It is Combs impressive empirical data on the ad hoc tribunals however that}

most scholars agree on and that her finding cannot easily be disputed.112_{It is a reminder ‘that}

it is inherently difficult to provide theoretically legally satisfactory evidence for crimes which are notoriously off the book.’113_{At the same time Combs analysis is ‘sobering’, feeding}

scepticism about these ‘multimillion-dollar proceedings’ and whether they can ‘fulfil their most basic function and convict or acquit defendants based on facts.’114_{It is this legacy that}

international tribunals and the ICC most certainly have to consider when pursuing its goals. In

109_{See Nancy Combs, Margaret DeGuzman, Marko Divac Öberg, Saira Mohamed and Dan Saxon, ‘A Conversation} with Nancy Combs, Proceedings of the annual meeting - American Society of International Law, 105 (2011), 315. 110_{Linda A. Malone, ‘Reviewed Work: Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of} International Criminal Convictions. By Nancy A. Combs’, The American Journal of International Law , 105, 4 (October 2011), 848.

111_{Lyons, ‘Enough is Enough: The illegitimacy of international criminal convictions’, 287.}

112_{See: Ward Ferdinandusse, ‘Review Essay. Fact-Finding by and about International Criminal Tribunals’, Journal}

of International Criminal Justice 11 (2013), 677; Lyons, ‘Enough is Enough: The illegitimacy of international

criminal convictions’, 287; Margaret DeGuzman, ‘A Conversation with Nancy Combs’, 317; Malone, ‘Reviewed Work: Fact-Finding Without Facts’, 848.

113_{Jennifer Lincoln, ‘Book Review. Nancy Armoury Combs, Fact-Finding Without Facts, The Uncertain Evidentiary} Foundations of International Criminal Conviction’, International Criminal Law Review 12 (2012), 303.

114_{Asad Kiyani, ‘Review Essay. Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of} International Criminal Convictions. By Nancy A. Comb’, International Journal of Transitional Justice 5, (2011), 519.

Joseph Mpambara: A trial obscured by facts and findings When ambivalence, bias and contestation impede a Dutch judicial inquiry into mass atrocity crimes in Rwanda

Joseph Mpambara: A trial obscured by facts and findings

Contents