Article on the ICTR–the link!

I’m in Seoul airport on my way back to the States from Beijing. I just remembered that shortly before I left home 8-some days ago, the Boston Review finally got my article on the International Criminal Tribunal for Rwanda up onto their website.
So here’s the link for it!
I would love it if you would post any comments you have here– as well as sending them to the BR.
The piece draws heavily on the interviewing and observing I did at the court, in Arusha, last April.

17 thoughts on “Article on the ICTR–the link!”

  1. Very interesting article, and I envy you the experience of being there. A few thoughts:
    First, I definitely think that the task of completing a historical record should be left to a non-judicial body. Judges are usually not equipped to be historians, and their duty is to provide justice to the parties that come before them. To the extent that background fact-finding hinders their ability to do this, then the judges should stick to the facts of the case. Placing the crimes in a historical context is properly the work of a truth commission (possibly one empaneled under international auspices to avoid the claims of bias that have plagued Nuremberg).
    With that said, there are also a few common-sense measures the court might have taken to shorten trials. For instance, witnesses could have been deposed in Rwanda, which would have reduced travel and maintenance expenses and enabled their testimony to be preserved sooner (particularly if they were needed for more than one trial). Witnesses needed purely for background information could even have testified by affidavit, which is not uncommon in inquisitorial justice systems and is much less of a danger in bench trials than in jury trials.
    With respect to Carla del Ponte, I think she is trying to draw a false equivalence by seeking indictments against members of the Rwandan government; whatever war crimes the RPF may have perpetrated pale beside those of the genocidaires. I find Ms. Ellis’ statement (“in Rwanda what happened really was a war”) frankly perverse – yes, there was a war, but one side committed genocide and the other side stopped it. The Nazi atrocities were also committed in the context of a war; would Ms. Ellis discount their treatment of Soviet POWs on this ground? Seeking ICTR indictments against RPF members is equivalent to the Nuremberg prosecutors seeking out a few Jews who committed crimes against German prisoners – I’m sure there were a few, but what’s the point? (Not to mention that the ICTR prosecutors should hardly be surprised at the Rwandan government’s lack of cooperation when they treat members of that government as potential suspects).
    Speaking of cooperation issues, did you make any attempt to talk to Kagame or anyone else on the Rwandan side? I’ve heard that the lack of cooperation isn’t all one-way, and that the ICTR has sometimes been very high-handed with the Rwandan government. I can’t confirm that firsthand, but a Rwandan perspective might have added something to the article.
    All in all, though, a fine piece and an excellent study of judicial mission creep. Well done!

  2. Hi, Jonathan, thanks for your comments– thoughtful, as always.
    When I was in Rwanda last year I did talk with their Attorney-General Gerard Gahima. (I think he’s the Justice Minister now.) He and numerous other officials I talked to there certainly gave me, very fully and generously, their view of things, which I appreciated.
    I have not yet fully written up that visit, which is too bad. But I’m planning to cover it fully in the book I’m writing. Basically, they still have many of the same criticisms against the ICTR that they voiced at the Security Council in 1994– plus, by now, a trenchant series of criticisms of how it has operated in action (treatment of witnesses, overall costs and ineffectiveness, etc etc.)
    About the “moral equivalence” issue, neither Diana Ellis nor anyone else whose judgment I respect claims that the RPF committed genocide in 1994 or at any other point. (There are some ‘Hutu power’ extremists who do claim this.) But DE and numerous very well-informed experts like Allison Des Forges do say there is considerable evidence that some RPF people committed war crimes and crimes against humanity, and that these allegations have not been adequately investigated by the government. These crimes are also (to the great annoyance of the RPF) covered in the mandate of resolution 955.
    Personally I think that since there does appear to be considerable proma facie evidence of these crimes it would be appropriate if the ICTR continued its investigations of them and launched indictments as necessary. This is not only in itself the right thing to do but would also help to establish the court as more truly above politics.
    See, for example, how ICTY has heard cases against all three (or, with the Kosovars, four) sides in the former-Yugoslavia conflicts. Even though no-one has acused some of these people of genocide, they have been tried on counts of war crimes or CAH, and that is quite appropriate.
    Incidentally, from the viewpoint of victims, the extra dose of “intentionality” required in order to prove charges of genocide doesn’t really make much difference: the effects can often be just as deadly. (See, for example, the effects of the RPF’s extensive engagements in eastern DRC. These have not been, I realize, under the jurisdiction of the ICTR. But they were pretty darn atrocious.)
    … Anyway, thanks for referring in yr comment to the handy term “judicial mission creep”. My own view, precisely!

  3. About the “moral equivalence” issue, neither Diana Ellis nor anyone else whose judgment I respect claims that the RPF committed genocide in 1994 or at any other point […] But DE and numerous very well-informed experts like Allison Des Forges do say there is considerable evidence that some RPF people committed war crimes and crimes against humanity, and that these allegations have not been adequately investigated by the government.
    I’ve seen a number of accounts of war crimes by the RPF, and I’m sure there were some – show me an army that doesn’t commit any war crimes, and I’ll show you an army that isn’t at war. My understanding, though, is that the RPF’s war crimes were basically the excesses of war rather than a matter of policy, and were nowhere near as widespread or concerted as the interahamwe’s.
    Now, this doesn’t make the RPF’s atrocities any less atrocious, but it does take them out of the range of crimes ordinarily prosecuted by pre-Rome Statute international courts. Before the ICC, international tribunals were reserved for the worst of the worst, and prosecuting RPF members in such a court will come off as drawing an equivalence between them and the interahamwe. It would blur a very basic distinction between the good guys and the bad guys in the Rwanda war, which I think there were despite the fact that the good guys were flawed. Imagine what one of the revisionists you speak of would do with a few ICTR convictions of former RPF officers – he would be able to claim with at least superficial plausibility that one side is as bad as the other.
    Perfect justice would require that the RPF’s crimes be prosecuted. If such prosecutions would be in aid of a concerted attempt to demonize the RPF and whitewash a genocide, though, they might be a net negative.
    Incidentally, from the viewpoint of victims, the extra dose of “intentionality” required in order to prove charges of genocide doesn’t really make much difference: the effects can often be just as deadly.
    Viewing criminality from the standpoint of the victim can only go so far. If this view is taken to its logical endpoint, then there is no difference between negligent homicide and murder, and someone who falls asleep at the wheel and causes a fatal car accident is as guilty as someone who deliberately kills. It is the perpetrator who we call to account and punish, so his state of mind must be a major consideration in deciding the extent of his guilt.
    In any event, the object of genocide is not simply to kill people but to eliminate an ethnic group, so a successful genocide would still differ from murder from the standpoint of the target group and humanity. Genocide is more than the sum of the people murdered; a culture is murdered as well.
    (See, for example, the effects of the RPF’s extensive engagements in eastern DRC. These have not been, I realize, under the jurisdiction of the ICTR. But they were pretty darn atrocious.)
    Keep in mind, though, that the reason the RPF/RPA was in the DRC in the first place was that the interahamwe were raiding western Rwanda from the refugee camps and the UN was doing damn-all to stop it. The Rwandan intervention in the DRC can legitimately be characterized as a defensive war (at least in its initial stages) and the atrocities were mainly the local militias’ rather than the RPF’s.
    thanks for referring in yr comment to the handy term “judicial mission creep”.
    I’ve found “mission creep” in general to be a useful term, especially during the last two years.

  4. Dear Helena Cobban,
    I enjoy reading your articles in the Christian Science Monitor.
    I can’t understand why no one has come out and said why—the real reasons for going to war with Iraq.
    The only people that were in any danger from Iraq were the Israelis, and Bush bowed to pressure from AIPAC and ZOA in hopes of being elected to a second term. Oil and revenge for Sadam’s attempt on his father’s life were of minor importance.
    Maybe people are afraid of being labeled anti-semitic. I believe that we can admire the Jews for their many contributions to civilization and culture and still oppose their actions in Palestine/Israel.

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