Rwanda: law, justice and power

By Gregory Mthembu-Salter
Open Democracy
June 26, 2009

The international tribunal charged with investigating the genocide in Rwanda in 1994 has some significant achievements to its credit. But a series of problematic decisions casts a shadow over its reputation, says Gregory Mthembu-Salter.

The mandate of the International Criminal Tribunal for Rwanda is approaching its end. Its chief prosecutor, Hassan Bubacar Jallow, intends to conclude the work of the tribunal by its latest possible deadline of 31 December 2009. In investigating and prosecuting some of the worst perpetrators of Rwanda's genocide in April-July 1994, the ICTR has played an honourable role; but there is a shadow over it which will remain a blemish on its reputation

The issue is the ICTR's failure to extend its reach by also bringing to justice individuals belonging to the Rwandan Popular Front - the movement that came to power in Kigali in the aftermath of the genocide, and has held it ever since. The reasons for this failure are a familiar, if still grisly, story of international power-politics and behind-the-scenes pressure. This brief article sets out its ingredients.

A difficult start

The United Nations Security Council (UNSC) established the International Criminal Tribunal for Rwanda (ICTR) by a resolution of November 1994. The tribunal‘s mandate was comprehensive, as befitting the overall goal of aim of achieving justice and "national reconciliation": to prosecute those responsible for the genocidal slaughter that had consumed the lives of at least 800,000 people, but also to target those who had committed "other serious violations of international law".
There are few who doubt that Rwandan Popular Front (RPF) troops - advancing southwards from their base in Uganda to overthrow the génocidaires and chase many of them towards or into the Democratic Republic of Congo (DRC) and Tanzania - committed war crimes in 1994, though the extent to which these were ordered by the RPF's leadership remains in dispute. Most estimates suggest the RPF killed 25,000-40,000 people in the relevant period: at most 1% of their enemies‘ total, yet of a number in a context that suggests that some at least in the RPF fell within the terms of the ICTR's mandate.

The ICTR's first chief prosecutor was Carla del Ponte, who also headed the International Criminal Tribunal for the former Yugoslavia (ICTY). She began with the intention of prosecuting RPF members for war crimes, without losing sight of the tribunal's primary objective of seeking out genocide perpetrators. The ICTR's efforts in this respect, however, quickly ran into trouble.

The Rwandan government in Kigali soon heard of the ICTR's intention to investigate the RPF - as well as the incident which triggered the genocide, the plane crash that killed Rwanda's president, Juvénal Habyarimana. The relations between government and tribunal - already tense - went into deep freeze.

There were three reasons for the existing tension. First, Rwanda's government to a large measure blamed the genocide on the international community and the United Nations system. Second, Kigali was angered by the decision to locate the ICTR in Arusha, Tanzania, rather than in Rwanda; this deprived the Rwandan authorities of the chance themselves to prosecute any of the key genocide suspects. Third, it was furious too at the succour given by international-aid organisations to the over 2 million Rwandan Hutu refugees then crowded (and in some cases reorganising) in Congolese and Tanzanian camps - among whom were the very politicians, militia and Rwandan army members responsible for the genocide.

This toxic context guaranteed that Rwandan politicians from the top downwards would denounce the ICTR for allegedly equating genocide crimes with RPF killings. There was a spate of stories in the government-controlled Rwandan press about génocidaires who were said to be working as defence counsel for several of the ICTR's indictees. Soon after, the Rwandan government formally suspended its relations with the ICTR, denying visas to would-be witnesses for the tribunal's genocide trials. Without these witnesses, the trials ground to a halt.

A sour fallout

The Rwandan government's stance was in defiance of the UN Security Council, and a violation of its legal obligation to assist the ICTR. Yet the decision of both council and tribunal to acquiesce was understandable. For both bodies, the most important thing was to hold genocide trials, and thus demonstrate to a sceptical world that it would not allow impunity for this terrible crime. Any trials of RPF members for war crimes would of course be desirable, as would clarity on who killed Juvénal Habyarimana; but now that the Rwandan government had effectively created a stark choice - genocide trials only, or no trials at all - the UNSC and ICTR chose the former option as the lesser of two evils.

In principle, the UNSC could have challenged the Rwandan government's stance, perhaps backed by aid cuts from the Washington and London (Kigali's main donors until) cooperation was restored. This was unrealistic, for two main reasons. First, the record of the two main parties. The Rwandan government included those who had stopped the genocide, saving hundreds of thousands of lives; the Security Council had authorised the withdrawal of its troops from Rwanda just as the killings were getting underway. The council had near-zero moral credibility over the genocide; indeed, part of the whole point of the ICTR was to restore it.

Second, the particular stance of the United States. The 1994 genocide happened during Bill Clinton's presidency. His administration both supported the withdrawal of UN forces from Rwanda when the genocide started, and played a major role in the UNSC in undermining subsequent attempts by other countries to muster an international force to intervene.

The US government even opted to describe what was happening in Rwanda (in the first weeks) as "tribal killings", an evasive and inaccurate term preferred to "genocide" because the latter would entail an obligation to respond. When it was all over, Clinton appeared to experience genuine remorse at having failed Rwanda, and his administration was simply not prepared to challenge the Rwandan government on the ICTR issue.

A bleak endgame
The Rwandan government went further than stopping RPF prosecutions and the ICTR's plane-crash investigation. It demanded a price for restoring cooperation with the tribunal: Carla del Ponte's resignation. Here too the UN Security Council conceded. The official justification - which had the advantage of being true - was that she already had a full agenda with the ICTY.

Hassan Bubacar Jallow replaced Carla del Ponte in 2003. Soon after, it became clear that there would never be any RPF prosecutions by the ICTR. The official position was that the tribunal was studying the matter and pursuing leads, but when questioned on the matter Jallow repeatedly fudged the issue, and nothing ever happened. In the meantime he invested considerable time and energy improving relations with the Rwandan government, even appealing five times for ICTR cases to be transferred to Rwanda for trial.

Each time, the tribunal's magistrates blocked Jallow's requests for trial transfers. At the same time, it has agreed to the transfer of several cases to other national jurisdictions (as its mandate allows) and refused to allow any of those convicted to serve their sentences in Rwanda. These decisions, against Rwanda's own wishes, seem to be the ICTR's way of demonstrating its even-handedness.

Moreover, the ICTR and Rwandan prosecutors collaborated on a case brought to court in Rwanda in 2008 - in which four RPF officers were accused of killing Vincent Nsengiyumva, the archbishop of Kigali, and several other senior members of the Rwanda's Roman Catholic hierarchy, in June 1994. The ICTR promised that it would monitor the officers' trial closely, even as it hinted that this was the closest it would ever get to tackling the issue of RPF war crimes. In the event, the Rwandan courts controversially acquitted the two senior officers, while convicting the two junior officers (who in any case had already admitted carrying out the killing).

When its mandate expires on 31 December 2009 , the ICTR will have significant achievements to its credit: challenging impunity by bringing the worst of the genocide perpetrators to book; proving in the process that the genocide did take place, greatly weakening the efforts of denialists; and advancing international jurisprudence, particularly regarding rape as a weapon of war and genocide.

And yet... the UN Security Council's decision in 2002 to accept the Rwandan government's de facto veto over the ICTR's progress because it seemed the lesser of two evils means that the ICTR will always be accused of perpetrating "victors' justice". This is a sad judgment for a tribunal that has carried out such important work on the world's behalf. But ultimately, it is a just one.

Note:
Gregory Mthembu-Salter is a writer and researcher on Africa who lives in Scarborough, South Africa. He writes for the Economist Intelligence Unit, Africa Confidential and the Africa Report. He has been a researcher for the South African Institute of International Affairs and the Institute for Security Studies, and was a member of the UN Panel of Experts on the Democratic Republic of Congo in 2007-08.

Also by Gregory Mthembu-Salter in Open Democracy:"South Africans have voted. What did they say" (24 April 2009).

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