Global Policy Forum

By Daniel Wallis

As debate rages over war crimes charges against Sudan's president, the history of stumbling efforts to punish those guilty in Rwanda's genocide has raised fundamental questions over the role of international justice. The ideal of ensuring there must be no impunity for the very worst crimes is seen by supporters as a strong deterrent to brutal politicians, but it is a complex process fraught with difficulty.

"The wheels are coming off," said Peter Erlinder, head of the defence lawyers association at the U.N.'s International Criminal Tribunal for Rwanda (ICTR), which was set up to try the masterminds of the 1994 slaughter in which 800,000 died. Critics of the tribunal say it has been costly and slow. Some also question its focus solely on the Hutus who led the genocide against minority Tutsis and not on any war crimes that might have been committed by the other side.

The picture was further complicated this week by Rwandan government allegations that top French officials, none of whom has been pursued by the tribunal, were directly involved in the bloodshed. The Rwandan accusations followed war crimes charges brought against President Paul Kagame himself by two European judges. "In Sudan, in Uganda, in the new Rwandan accusations against France, we're seeing the implosion of the system of international criminal law against the shores of political reality," Erlinder told Reuters.

The Hague-based International Criminal Court (ICC) last month moved to indict Sudanese President Omar Hassan al-Bashir for genocide and war crimes in the Darfur region, drawing condemnation from both the African Union and Arab League who said it would upset a fragile peace process.

Those calls echoed others recently in Uganda, where President Yoweri Museveni urged the ICC in 2003 to indict rebel leader Joseph Kony for atrocities but this year offered him an amnesty for peace. The ICC indictments have not been lifted however, and the rebels say that must happen to bring peace. Further south in Zimbabwe, experts say there is little chance of lasting peace and stability unless President Robert Mugabe and his closest allies are guaranteed some form of immunity from international justice.

VICTORS' COURT?

"I think it all points to a profound disturbance in international relations caused by the emergence of an international legal system," said Tom Cargill from London's Chatham House think tank. "The very idea that there might be a legal process ... quite separate from politics is causing many people in many countries to rethink how they approach international relations."

Rwanda's ICTR tribunal had been at the centre of efforts to set new standards of international justice. But it has received far less attention than the ICTY, the U.N. court for the former Yugoslavia that has just begun proceedings against one of its most wanted fugitives, former Bosnian Serb leader Radovan Karadzic, following his capture. Based in the sleepy northern Tanzanian town of Arusha, close to Mount Kilimanjaro, the ICTR has issued judgments in 32 cases, including five acquittals, since being established 14 years ago. At least a dozen of its accused are still at large.

Kagame's government says the tribunal is moving far too slowly and accuses it of gross inefficiency. But it has also been accused of bias for only prosecuting members of the Hutu-dominated army and government overthrown by Kagame's mainly Tutsi rebels in 1994, when their assault ended the genocide of Tutsis and Hutu moderates.

"It could be that this was the only war in history where just one side committed crimes," Erlinder said. "Or, the ICTR has been manipulated for political reasons to create impunity for one favoured party and has actually become a 'victors' tribunal like those after the Second World War." The court's future comes up for debate at the U.N. Security Council next month. Originally, it was due to wind up work on "first instance" trials this year, with appeals ending in 2010.

The court rejects criticism of its costs and delays, saying its mandate presented it with an enormous challenge. Any reassessment of the blame in Rwanda's genocide could have diplomatic consequences far beyond the small central African country, creating a rift between France and the United States and Britain, strong supporters of Kagame. Relations between Kigali and Paris plunged in November 2006 when a French anti-terrorism judge issued an arrest warrant on Kagame for the 1994 shooting down of a plane carrying his predecessor, an event widely seen as triggering the genocide.

In February, a Spanish High Court judge also accused Kagame of genocide, war crimes and terrorism, but said he could not be prosecuted as a sitting head of state. There is little to suggest Kagame or the French officials accused by Rwanda will ever face trial.

Kagame, as scornful of the ICC's moves against Bashir as the calls for his arrest, says he had long forecast that a world court would only target individuals in poor nations. "Every year that passes, I'm proved right," Kagame said. "Ironically, I think two thirds of the countries that signed up for its existence are Africans ... They didn't know they were signing up for a rope to come and hang them."