By Dibussi Tande
The International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania, is different things to different people. To some, it is merely a tool to assuage Western guilt for not doing enough to stop the 1994 Rwandan genocide; to others, the ICTR is a victor’s court designed to give a veneer of
legality and legitimacy to the Rwanda Government’s one-sided narrative of the events leading up to and during the genocide – a narrative that makes a black-and-white distinction between the Tutsi victims on the one hand and the Hutu perpetrators on the other; still, there are others who believe that the tribunal’s mandate is a just and necessary one, i.e. to prosecute “persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda between 1 January 1994 and 31 December 1994”. And there are yet others who view the court’s mandate and performance thus far in shades of grey.
Whatever their views about the ICTR, most people think of the tribunal in very abstract terms, i.e., a faceless and amorphous international bureaucratic behemoth chugging ever so slowly and unemotionally towards the fulfilment of its mission. Even though I have a good number friends, acquaintances and family working in the court as interpreters, translators and legal officers, etc., I must admit that I also viewed the ICTR in these abstract terms, that is, until last week when I had the privilege to visit the Arusha International Conference Center, home of the ICTR. This brief trip to the ICTR, which included a stopover at the very vital Language Services with its huge, if not predominant, Cameroonian contingent, revealed a very real institution with hundreds of dedicated international functionaries working hard, within the limits of international law and (real)politics, to unravel the Rwandan puzzle, while laying the foundations for a more responsive international human rights law for the 21st century; functionaries who have to deal with the emotional toll of reliving the gory details of the Rwandan genocide day in day out - an experience which can sometimes be as traumatic as the real event itself...
I also had the opportunity to sit through portions of the proceedings of Case No. ICTR-98-44, The Prosecutor v Édouard Karemera, Matthieu Ngirumpatse and Joseph Nzirorera (“Karemera et al”). Karemera (Minister of Interior), Ngirumpatse (President of the Rwandan ruling MRND) and Nzirorera (President of the National Assembly) were three former officials in the Rwandan Interim government of April 1994 which carried out the genocide. The case against Nzirorera was dropped following his death on July 1, 2010 in Arusha. [Click here to read Nzirorera's pre-defence brief ]
According to the ICTR indictment, the three are charged with seven counts including genocide, complicity in genocide, incitement to commit genocide and crimes against humanity, allegedly committed mostly by members of their party, the MRND, particularly it youth wing, the infamous Interahamwe. The indictment specifically that:
Édouard KAREMERA, Mathieu NGIRUMPATSE, and Joseph NZIRORERA acting alone and in concert with other members of the joint criminal enterprise participated in the joint criminal enterprise in the following ways: they created, founded, and organized the Interahamwe; recruited members for the Interahamwe; provided weapons, military training and indoctrination to the Interahamwe; purchased and distributed weapons to armed militias, particularly the Interahamwe; organized and participated in rallies and public meetings that promoted the ideology of "Hutu Power"; made public statements and engaged in public displays that supported anti-Tutsi ideology; legitimized Interim Government at international fora and manipulated press reports of the genocide; led propaganda efforts to accelerate the genocide; publicly characterized the Tutsi as "accomplices of the enemy" or publicly acquiesced to such characterization; organized and participated in meetings of the MRND [Mouvement Républicain pour la Démocratie et le Développement] for such purposes; incited, encouraged or abetted killings of Tutsis; rewarded or praised persons who killed Tutsis; participated in the formulation and implementation of the policies of the Interim Government of 8 April 1994 that were directed to those ends; and mobilized the physical and logistical resources of their respective political parties and the Interim Government ministries controlled by those parties, and the military.
Watching the proceedings from the public gallery of Trial Chamber III as Prosecution Counsel Don Webster cross-examined defence witness André Nzabanterura (Interahamwe President in Kimihurura secteur in Kigali), under the watchful eyes of Judges Byron (Presiding), Kam and Joensen was quite an experience. Suddenly, the “genocide” – that other vague and faceless term – became very real with some of the actors just a few feet away from me [Click here for the minutes of this particular session]
The very detailed questions of the prosecutor, the constant references to minute details from nearly two decades ago (along with the need to have the entire proceedings simultaneously interpreted in at least four languages), shed light on repeated complaints about dreadfully slow pace of ICTR proceedings and the limited number of individuals who have so far been tried. But can it be otherwise given what it as stake? I doubt it. However, one cannot help but wonder whether in the end, justice delayed is not justice denied as many critics of the tribunal have argued. For instance, this was Day 334 of the Karemera trial, with only 15 of the 35 defence witnesses having appeared already before the court. At this rate, one wonders whether the court can effectively complete its (already extended) mandate before the end of 2011 deadline...
The UN Genocide Mapping Report – “Double Genocide”?
My stay in Arusha coincided with release of final version of the controversial UN “Mapping Report” on October 1, 2010, which details the most serious violations of human rights and international humanitarian law committed in the Congo between March 1993 and June 2003. The report accuses the Rwandan army and its Congolese allies (the AFDL) of embarking, in 1996 and 1997, on an "apparently relentless pursuit and mass killing of Hutu refugees," resulting in the deaths of "several tens of thousands."; According to the report, these were "apparent systematic and widespread attacks... that, if proven before a competent court, could be characterized as crimes of genocide” or at the minimum, “crimes against humanity." [For a quick overview of the Mapping Report and its consequences, see this Human Rights Watch Analysis]
The Mapping report concludes with a call for “a full judicial investigation into the events that occurred in Zaire in 1996 to 1997 in order to permit a competent court to decide on the matter.” The report, which the Rwandan government has rejected and accused of trivializing genocide, has once again raised the spectre of expanding the ICTR’s mandate to cover atrocities committed by the Tutsi-led Rwandan Patriotic Front during its march to Kigali in 1994 and its incursion into Eastern Congo in 1996-1997. In fact, even before the release of the Mapping report, there were many critics who argued that the tribunal's failure to prosecute officials of the Rwandan regime would likely compromise its work in the long run.
it was unfortunate that the Rwanda tribunal's prosecutor did not charge those accused from all sides in the conflict, as the Yugoslav tribunal and the Sierra Leone Special Court did in the conflicts they addressed. The Rwanda tribunal's prosecutor failed to bring charges against members of the Rwandan Patriotic Front, which became the Rwandan Army, who had been implicated in war crimes. This failure jeopardizes the tribunal's long-term legacy [ See Genocide, War Crimes and Crimes Against Humanity: A Digest of the Case Law of the International Criminal Tribunal for Rwanda ]
Today, there are many who argue that the only way to ensure that the ICTR does not become the “victor’s court” that its critics have claimed it is, is by prosecuting the RPF and its successor, the Rwandan army, for crimes committed in 1994 and after.
The consensus, however, is that the probability of Rwandan officials being brought before the ICTR or a similar tribunal is very slim given the prevailing international climate. As HRW pointed out in a recent report, “It seems unlikely that there would be sufficient international interest to expand the tribunal's mandate and keep it in operation beyond its current completion date.” The mapping report has not changed this equation. Even though President Paul Kagame, the West’s erstwhile “Golden Boy” may have lost some of his lustre in recent months (controversial elections, brutal crackdown on political opposition, arrest of Peter Erlinder, scathing rebuke from the usually friendly international media, etc.), he is still considered an indispensable ally in the region, and therefore, largely untouchable. The result according to critics is the “Nuremberg paradigm”, i.e., a one-sided system of justice which punishes the vanquished exclusively, while making light of, or simply ignoring the crimes of the victors.
The October 11 arrest of Callixte Mbarushimana, the leader of the FDLR (Democratic Forces for the Liberation of Rwanda), the Rwandan Hutu-led rebel group, for war crimes and crimes against humanity committed in the Congo – barely two weeks after the release of the Mapping report – without any concomitant effort to pursue the Rwandan officials for their alleged role in the atrocities in the Congo in 196-1997 will only heighten Hutu sense of victimhood and cast yet another shadow over the work of the ICTR.
The ICTR: Was it worth the trouble?
Since its creation, the ICTR has faced many challenges, including the ambivalence of the Rwandan government and large segments of the Rwandan public towards the courts due to contentious issues such as "the failure to locate the tribunal within Rwanda, the lack of a provision for capital punishment... the over one billion dollars spent on the ICTR while Rwanda's domestic system struggles to try thousands of suspects.” Add to this the prevailing feeling that ICTR is dishing out victor’s justice and one can begin to understand growing concerns about the tribunal's legacy.
True, the ICTR has promised more than it delivered, but it was a necessary legal instrument, given the need to bring the architects of the Rwandan genocide to justice, and to establish the jurisprudence required to deal with similar events in future.
The chilling details of the Karemera et al case clearly demonstrate how the quest for political power and/or ethnic hegemony, particularly in Africa, can easily slide into crimes against humanity and genocide. The accused in this case were probably fairly regular folks who, in their quest for power, allowed themselves to be swept away by an ethno-political maelstrom which transformed them into architects of one of the most barbaric events of the 20th century. What is so frightening about it all is that this could be the story of any African country. This could be the story of Cameroon. In fact, some will argue that this was indeed the story of Cameroon during the “années de braise” or the “smoldering years” of 1990-1993, when hardliners unleashed the infamous “operation mygale” very similar to the ideology and politics of “Hutu Power” which culminated in the Rwandan genocide. Since this can happen anywhere, the ICTR by its mere existence, and in spite of its imperfections, serves as a warning that perpetrators of such inhumanity will be brought to book.
Even HRW, which has been one of the staunchest critics of the ICTR’s one-sided system of justice, concedes that "The tribunal's jurisprudence has been immensely important in defining the indescribably horrific crimes committed in Rwanda and creating a solid body of jurisprudence." In my opinion, this alone makes the ICTR worth all the trouble. [For an insight into some of the groundbreaking jurisprudence established by the court, download the The 500-page book, "Genocide, War Crimes and Crimes Against Humanity: A Digest of the Case Law of the International Criminal Tribunal for Rwanda."
This article is dedicated to the “Clan” in Arusha. They know why.