THOUGHTS ON THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA

THOUGHTS ON THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA: I’ll confess right here that I am still at only a very preliminary stage in trying to organize all the impressions I gained, all the interviews I undertook, all the great discussions I had, during my eight days of work at ICTR. Yesterday turned out to be another gala day in terms of interviews. I had really substantive interviews with two judges– one of them Erik Mose, a Norwegian human-rights lawyer and international-law specialist who’s the Deputy President of ICTR– and with an intriguing prosecution lawyer called Simone Monasebian. I also had good discussions with a defense-team legal assistant who is a Rwandan national and with Tribunal spokesperson Roland Amoussouga.
Judge Mose, I got into an extremely interesting discussion with. Then 90 minutes into it, I suddenly realized I might be late for my next discussion, so I had to pry myself out of his office. He was an ardent, hyper-articulate defender of the Tribunal’s record. But still… Eleven cases completed in, effectively seven years of operation? (One of those was “completed” arlier this year when the defendant, an Anglican bishop, died before his trial had even opened.) And a tribunal with, in the present year’s budget, 872 staff members and an annual budget of $177 million?
Mose’s argument was, in broad terms, that because the Rwandan genocidaires did not (unlike say the Nazis or the Khmers Rouges) leave extensive documentary records of their atrocities, therefore the cases against the leading genocidaires on trial in Arusha have to be painstakingly built up from witness testimony. And this necessarily takes time.
Thus, for example, in the “media trial” of three accused leaders of Rwanda’s hate media who are accused of incitement to genocide as well as conspiracy to commit genocide and some other charges, the prosecution has called no fewer than 47 witnesses. Mose said he considered such numbers of witnesses not excessive; rather, he saw these witnesses as supplementing and bolstering each other’s testimony…
Most witnesses testify in Kinyarwanda, a language that none of the judges or attorneys speaks. So all the statements, examinations, cross-examinations etc have to go through interpretation, which involves considerable time-lags.
Thus, the “media trial” for which Mose is one of the three judges recently completed its 229th day of open-court hearings; and as far as I can gather, the defense has only just started to make its case. Or rather, since there are three defendants and each is entitled to mount his own defense, call his own witnesses, etc., I should say that the defense has only just started to make its cases.
And those are not 229 consecutive work-days in the courtroom. Since each of ICTR’s three chambers is conducting two major trials more or less concurrently– or rather, sort of fortnight and fortnight about– and what with other delays, etc– the “media trial” has been running since, (I need to check this) around the summer of 2000.
There are some defendants in the UN’s special Detainment Facility near Arusha airport who have been in custody since 1998 or 1999 whose trials have not yet even started. Delay is definitely an issue in the quality of the justice provided by the Court.
It is an issue that not only affects the rights of the detainees– who may yet, of course, join the one defendant whom the court has thus far found “not guilty”. But the delay also affects the quality of the trials themselves. It sort of feeds upon itself, compounding the problems of memory lapses and general administrative confusion at every turn.
I sat in on one trial, the “Kajelijeli trial”, of just one defendant, Mr. Kajelijeli, where at least two excuriciatingly lengthy trial days seemed to be devoted solely to resolving some question regarding what Mr. K had or had not told prosecution investigators on that day he was arrested, in Benin, in June 1998. So, while the folks involkved in that exchange couldn’t fully remember who said what to whom in 1998, they hadn’t even started getting to the issue of who did what to whom in 1994….
In that case, defense attorney Lennox Hinds pointed out that earlier, the prosecution had claimed in open court that there were no tapes of the 1998 questioning of Mr. K., but that later, the tapes in question had been found and produced. The prosecuting attorney noted that she had not been on the case at that point and did not have any recollection of what had happened rgarding the tapes. Everything seemed incredibly slapdash and complicated. At one point the defendant himself interjected with a suggestion as to how the presiding judge, Judge Sekule, could resolve a certain question….
As Sekule seemed to be completely losing his grip on the court’s time, one of his colleagues on the bench, Judge Maqutu, seemed clearly to be asleep. Understandable, perhaps, given the extreme lengthiness and basic argumentative irrelevance of most of the proceedings at this point. But still, absolutely inexcusable.
(One attorney told me it is not only the judges who sometimes seem to sleep, but that lead attorneys for both defense and prosecution teams have also been known to do so.)
ICTR and its sister-tribunal for former Yugoslavia have been hailed as institutions that are blazing new trails in the development of international criminal law. If that’s the case, it might be a good idea for more of us to examine whether these are trails that we necessarily want to be taking.
The International Military Tribunal at Nuremberg heard, as far as I recall, 22 or 23 cases in ten months. The four principal judges spent a short time reaching and writing their judgments. There was then a hasty period of consultation (though notably NO appeals process), and then, less than one year after the trial had opened, the sentences were executed. (In around half the cases, that meant that the men themselves were executed. For the rest, there were lengthy prison sentences; but also three acquittals.) End of story. The Allies set about rebuilding Germany. The findings regarding “criminal organizations” that had been made by the IMT were used to administer administrative sanctions against the thousands of relevant members of those organizations, to help with a general program of de-Nazification. But basically, nine years after the end of WW2, the Nuremberg Trials were ancient history, and Germany was well on its way to achieiving the vaunted “economic miracle” of its post-war years.
What Nuremberg by common consent lacked in terms of due-process protections for the defendants, it more than made up for by providing an expeditious judicial process.
Now, nine years after the Rwandan genocide, the country is still held largely in the grip of the many cruel legacies of that event. Responsibility for this state of affairs should probably be shared in some proportion between the country’s national government and an “international community” that in 1994 notably failed to intervene to stop the genocide (which all signatories of the 1948 Genocide Convention, including the United States, were contractually obligated to do), but which eagerly leapt onto the “international courts” bandwagon right after the genocide in an attempt to “use” this case in order to push forward the agenda of international criminal law. (As well as to assuage some guilt on behalf of citizens of northern nations that had done nothing to stop the genocide.)
Whether ICTR has, in sum, helped or imposed additional harm on the Rwandans is one of the things I’ve been trying to find out with my research. Of all the people I talked to in Arusha– prosecution attorneys, defense attorneys, Rwandans, “internationals”, journalists, court officers– only Judge Mose and ICTR/ICTY Chief Prosecutor Carla Del Ponte definitely stated that they thought ICTR had been helpful to the Rwandans. Everyone else whom I asked about this specific issue ended up giving a far more guarded, nuanced, or even downright critical judgment. I even heard plenty of caveats expressed by a member of the prosecution team, who told me that early idealism about joining this ground-breaking project had now been supplemented by an interest in making a further move in the future, and going to work with Rwanda’s “alternative justice” program, the gacaca courts…
Well, there are plenty of other issues I want to write about, with regard to ICTR. I promised my editor at the Christian Science Monitor that I’d get something to her about the court “soon-ish”. Trying to choose what to say in my regular 800-word column looks like a huge challenge.
After that, I’ll try to spin off a nice long think piece for Boston Review. I love writing for them. The editors there are totally sharp and on-the-ball. (I know that, because they always say they like my writing. I mean, isn’t that the best criterion for “sharpness” that there is??) But I also somewhere along the way have to write all of my Rwandan-justice material up as a chapter of the book I’m supposed to be writing.
That includes all the fabulous, thus far barely exploited material that I gathered during my rsearch visit to Rwanda, last year. As well as all this new material. And I need to put all that into one chapter???? Helena, you have to be kidding.
Oh, and did I tell you that I am going to be plunging myself into Mozambique tomorrow?