ANALYSIS OF RISK OF TORTURE OF BWINDI DEFENDANTS

C O N F I D E N T I A L KIGALI 000634

SIPDIS

SENSITIVE
SIPDIS

E.O. 12958: DECL: 07/03/2017
TAGS: PREL PHUM RW
SUBJECT: ANALYSIS OF RISK OF TORTURE OF BWINDI DEFENDANTS

REF: KIGALI 599

Classified By: Ambassador Michael R. Arietti, reason 1.4 (B/D)


1. (C) Summary. Post submits this analysis of the risk of
torture of the three Bwindi defendants if returned to Rwanda
for trial, for use in Department deliberations. Post finds
that it is not/not "more likely than not" that these three
individuals would be subject to torture if so returned.
Recent legislation puts formal legislative guarantees in
place for individuals returned from other countries for trial
(Organic Law Concerning Transfer of Cases to the Republic of
Rwanda from the International Criminal Tribunal for Rwanda
and from Other States),laying out extensive due process
protections, and inspection of detention facilities. The
Minister of Justice has personally committed the GOR to the
provision of additional assurances, if required, as to proper
treatment of the detainees. Given the great interest the GOR
has in securing the return of ICTR detainees for trial, and
encouraging other states to return Rwandan suspects for trial
(including Great Britain, embarked upon extradition
proceedings regarding several individuals sought for trial by
the GOR),the government would in fact be on its very best
behavior in regard to the Bwindi defendants. End summary.


2. (C) At Department's request, Post submits this analysis
of potential claims by Bwindi defendants that they would be
"more likely than not" the subject of torture if returned for
trial in Rwanda. We find it unlikely that the defendants
would face any physical abuse while in detention. First and
foremost, Rwanda's actions in this case will not occur in a
legal or political vacuum: Rwanda is embarked upon a
vigorous campaign to solicit the return of genocide suspects
from other nations, and to encourage and assist other nations
in prosecuting suspected genocidaires. Aside from close
cooperation with our own Department of Justice Office of
Special Investigations, we are aware of cooperative efforts
with the governments of Finland, Great Britain, Canada, New
Zealand, Belgium, and, most recently, the French Government.
The cornerstone of Rwanda's efforts to either secure custody
of, or see the punishment of, senior participants in the 1994
genocide is the joint effort by the ICTR and the Rwandan
government to effect the transfer of a number of cases
pending before the Arusha tribunal to Rwandan judicial
authorities.


3. (C) The importance to the Rwandan government of these
many efforts cannot be over-emphasized: securing the return
of some of the masterminds of the genocide is one of Rwanda's
highest foreign policy goals. The Bwindi defendants would
return to a Rwanda energized by its international efforts,
and very conscious of its international responsibilities,
regarding high-profile criminal suspects. We find it very
unlikely that Rwanda would put at risk ICTR transfers, or
transfers from other nations (several of whom must make their
own assessment of the treatment suspects would receive in
Rwanda) by subjecting the Bwindi defendants to anything other
than a strict adherence to governing international standards.


4. (C) Rwanda has also bound itself by law to do just that:
observe international standards to the letter in cases
transferred from other jurisdictions. On March 19, 2007
Rwanda gazetted the Organic Law Concerning Transfer of Cases
to the Republic of Rwanda from the International Criminal
Tribunal for Rwanda and from Other States. This law is
explicitly made applicable to transfers from other states,
with no limitation as to types of cases (art. 24). The
statute provides extensive due process protections for
defendants, including right to a presumption of innocence,
right of adequate time to prepare a defense, right to counsel
at state expense, and the right to secure attendance of
witnesses (art. 14) (note: many of these rights are protected
under the Rwandan Constitution as well).


5. (C) The statute also provides extensive protection of and
assistance for witnesses, and establishes a monitoring regime
for trial proceedings and detention facilities. For example,
the ICRC is explicitly granted the authority to supervise
detentions. (Post has regular consultations with the local
ICRC office, and we find their monitoring of detention
facilities to be extensive and comprehensive). Finally, the
statute provides for "appropriate security and protection"
measures for defense counsel. Cases coming under this
statute are tried in Rwandan High Courts, the highest level
of trial court in the country, and defendants are accorded an
automatic right of appeal to the Rwandan Supreme Court.


6. (C) Minister of Justice Tharcisse Karugarama has told us,
upon his review of the Bwindi case file, that Rwanda would
prosecute the defendants should they return to Rwanda. He
noted that the confessions obtained from the defendants would
likely be subject to challenge by defense counsel, and the
court would make an independent determination of their
validity. To secure the return of the Bwindi defendants, the
Minister said the GOR would be willing to give appropriate
written assurances to the USG concerning treatment of the
defendants.


7. (C) Post has also consulted with the president of
FACTS-Rwanda (Forum for Activists Against Torture) which has
conducted extensive examinations of the conditions in Rwandan
detention facilities -- which it broadly interprets to
include police stations, pretrial centers, remand prisons,
juvenile centers, immigration centers, psychiatric
institutions, administrative detention centers, and regular
prisons. He identified the major problems as acutely crowded
conditions, and related health concerns. While noting that
incidents or abuse and torture do occur, such instances are
"slim," are "rare," and the majority of police and prison
officials are acting properly. In addition to monitoring
efforts, FACTS-Rwanda has conducted many training programs
for the Rwandan National Police; indeed, the FACTS president
told us that "every police commander in the Northern and
Southern Provinces (half the country) knows me." While he
said that "some police officers still use primitive methods
of interrogation," he has found police commanders and
individual officers receptive to his training regimes and his
message of proper and lawful conduct toward detainees, and
"things are better." FACTS has also conducted
"train-the-trainer" programs in 13 of Rwanda's 16 prisons on
preventing torture and violence.


8. (C) In a copy of a lengthy report he gave to the mission,
"Human Rights Monitoring in Rwandan Prisons," the general
conclusion states in part, that "there are still evident
violations of people's rights" in detention facilities.
However, "it should be widely acknowledged that torture and
ill-treatment is not an institutionalized issue; individuals
commit the incidents noticed." We take from our meeting with
FACTS-Rwanda and from his report that torture is not the norm
in Rwandan detention facilities.


9. (C) Comment. As noted above, should the Bwindi
defendants be returned to Rwanda, their prosecution would not
occur in a legal or political vacuum. The GOR is acutely
aware of the necessity to demonstrate to the international
community its adherence to due process standards to regard to
defendants transferred from other jurisdictions. The Bwindi
defendants would benefit from these concerns as a matter of
high national policy. Given enlightened prison and police
authorities (note, for example, high praise for prison
officials by the ICRC in reftel),we find the likelihood of
any physical abuse to be remote. End comment.
ARIETTI