Global Policy Forum

The UN Tribunal


By Ruth Nabakwe

The Perspective
December 5, 2001

Justice, it is said, must be seen to be done. For societies to surmount challenges facing humanity, universally recognized basic principals of respect for the rule of Law and human rights must imperatively be the basis on which values to guide human relations are anchored.

Often it is when these principles are violated that the world becomes an unsafe place for humanity due to the negative consequences, which follow.

A clear case in point was the Rwandan genocide of April 1994 in which an estimated 800,000 Rwandans lost their lives. After the fear, shock, anger and consternation at the capacity of human beings to inflict horrendous deaths to their kith and kin, came the logical desire for Justice.

The United Nations rose to the occasion but belatedly. As if out of guilt for leaving the Rwandans to their fate in their greatest hour of need, the United Nations set up the UN Tribunal for Rwanda in the Tanzanian town of Arusha to dispense what many expect to be Justice.

But since its creation, it has become habitual for people here and there to raise concerns about the workings of that tribunal. As a journalist I hold reservations about the working of that Tribunal following a visit I made to get an insight of what went on at the (TPIR).

The Rwandan government of President Paul Kagame has often raised its concerns about the slow pace of the Tribunal's trials in which less than ten people have been tried so far. One can understand the concerns of The RPF government in as much as hundreds of Rwandans who lost their loved ones would like to see justice done. For them justice could mean many things but one common view to many is that those who committed the heinous crimes be punished in order to hopefully avoid a repeat of the same.

But to those incarcerated who in most cases also lost their loved ones in the killings, Justice surely means the right to a fair trial until proven guilty or not guilty. A trial in which they have the right to be defended and their Defense Attorneys given as much ground to present their case as possible in an environment devoid of "shadows in the darkness" menacingly threatening to instill a climate of fear in every word or actions they undertake in a bid to prove the innocence of their clients.

As a journalist, intent to investigate on the UN Tribunal for Rwanda and the Lessons it could inspire for other African countries for the sake of peace on a continent for years torn apart by divisions, I paid a visit to the Tribunal mid this year and talked to as wide a range of people as possible in an attempt to understand what the UN tribunal for Rwanda was all about.

What became clear after my visit was that pertinent and disturbing issues have to be raised if solutions are to be found to what ails Africa today.

An issue which attracted my curiosity was that while in principle a fair trial requires that an accused be presumed innocent until proven guilty, the UN Tribunal for Rwanda in Arusha appears to have fixed a " political" criteria to pinpoint who are to be the genocide suspects who must be condemned and not who are the presumed genocide suspects who must be judged. As a result, there appears to be no "innocent until proved guilty" chance for those awaiting trial at the Tribunal.

The "political criteria" seems to have been pre-determined when one considers that those incarcerated appear to be behind bars simply because they were ministers, or were affiliated to the presidency of the former Hutu government of the late President Juvenal Habyarimana. Does it therefore mean that all those who were in the late Habyarimana's government were criminals without exceptions? These so called suspects are also arrested first before the prosecutor comes up with evidence against them. He then later goes about looking for the witnesses who would corroborate his charges against the arrested individuals.

Such moves are clearly an aberration of the Law and leave one wondering about what would happen if for instance a judge from any given African country were to have someone incarcerate without having gathered any criminal evidence against that individual first.

African countries are rife with examples of what normally could happen. Western governments perched on their high "moral" horses of human rights and democracy would be the first to screech at that African country concerned with cries of " violations of human rights, arbitrary arrests, political arrests and lack of respect for the rule of Law".

These Western government cries would be followed up almost simultaneously with condemnations from all quarters. Human rights organizations would promptly issue statements condemning the concerned African government and even the United Nations itself would join in the chorus. At worst, Aid taps would be frozen, followed up by Western Media hype designed to soil to the ground that African country's image.

Today, unfortunately it is the (UN) Tribunal for Rwanda which is not living by example. The human Rights of incarcerated Rwandan genocide suspects are being violated with impunity and all this is happening (not in an undemocratic African state) but within the precincts of a UN jurisdiction!

And yet, not a word from all the perceived " democratic" governments and human rights organizations within the "international community" who would have been quick to judge an African government by double standard yardsticks with lessons on respect for human rights and fair trials are silent.

As if such violations of suspects rights are not enough, their defense counsels working conditions are deliberately made all the more difficult as if to tell them that the "Rwandan genocide must absolutely be avenged even at the cost of the violation of fundamental human rights" of their clients.

The more one digs deeper into the workings of the TPIR, the more one discovers more and more unacceptable anomalies.

The defense counsels are turned into victims of a system which appears to have already pre-determined its verdict but has merely laid out a window-dressing concert through the Tribunal proceedings for international public opinion to imagine that fair trials with all the trappings of an environment where justice would be seen to have been done are underway at the UN Tribunal for Rwanda.

But how can justice be seen to have been done when one considers the precarious conditions in terms of security under which the defense counsels are made to work. As if designed to instill psychological fear in these advocates in order not to present a strong case for their clients, privileges, if one may call them that which were earlier enjoyed by these defense counsels were withdrawn by the Tribunal.

As auxiliaries within a justice system, defense counsels have an uncontestable role to play. Their role to ensure that a fair trial takes place can perhaps be understood when one considers that occasionally even some western countries have dispatched advocates at the Tribunal in Arusha to defend individuals that these countries consider to have a right to a fair trial.

Armed with western government support, these advocates through diplomatic channels acquire the necessary visas and diplomatic immunities to facilitate their work at the Tribunal.

Alas! The UN Tribunal for Rwanda is not impressed. The diplomatic immunities of these advocates or defence counsels have since been withdrawn leaving them vulnerable to the invisible Rwandan Patriotic Front government hawks suspected to have taken up camp in Arusha to gather intelligence for the Rwandan government on the goings on at the Tribunal and on WHO is WHO SAID WHAT!

We are told that the Tribunal depends on the Rwandan government for the success of its trials. It does not therefore need saying that Rwanda appears to wield a lot of behind the scenes powers over the Tribunal. A glimpse about the " immense Rwandan powers" over the Tribunal were discerned when Kagame threatened to withdraw cooperation with the Tribunal because judges had issued a "not guilty" verdict to suspect Jean Bosco Barayagwiza. This led to frantic efforts by Carla Del Ponte, the Tribunal's Chief Prosecutor, to try to reassure the bull-raged Kagame government.

" Whether we like it or not we must come to terms with the fact that we depend on the government of Rwanda," the Tribunal's Chief prosecutor Carla Del Ponte argued her case at the appeals court in an attempt to prevent Barayagwiza walking away a free man.

Now should the UN Tribunal judges consult Rwanda first before passing judgment on its cases? I throw the gauntlet for you readers to debate. Now with the defense counsels stripped of their diplomatic immunity, they have no UN legal protection except when within the trial chambers where bullet proof windows separate them from the public gallery. Not only were they stripped of diplomatic immunity but their identification cards were altered and partly written in Kinyarwanda as if to clearly signal to the Rwandan government that the defense counsels were no longer protected by diplomatic immunity.

Before the alterations, the identification badges of the defense counsels indicated that the holders of the cards worked for the UN Tribunal and requested countries to accord them the necessary diplomatic immunity to allow them conduct their investigations. The New identification badges now merely indicate that the " defense counsels were members of the defense team". The explanation is equally written in Kinyarwanda.

How can defense counsels be conferred such a delicate task of defending genocide suspects but at the same time leave their security to the wolves. As a result, since their diplomatic immunity was taken away most defense counsels have had jitters about going to Rwanda to conduct their investigations due to security fears. Those who venture to go to Rwanda are literally obliged to "Cling to the tail-coats " of the prosecutor for their security to be relatively guaranteed as they sought to carry out investigations for their clients' case. Some defense counsels have literally been thrown out of planes carrying the prosecutor to Rwanda. How then under such conditions can the UN Tribunal for Rwanda boast of dispensing fair trials when working conditions particularly for defense counsels were just the antithesis of a fair trial?

If such deplorable judicial working conditions were to happen in an African country's national courts, the "international community" would have reacted with disdain and most certainly reacted with " oh! It's normal, it's in Africa, its Africans being judged".

While the Tribunal prosecutors and the judges have rights to UN legal protection and bodyguards complete with fancy cars with UN registration number plates, the defense counsels at the end of exhaustive trial proceedings do not enjoy similar facilities but must walk on foot in the town in search of taxis or public transport means to drop them off to their houses or hotels.

So why provide the defense counsels with "bullet proof windows" protection during the trial proceedings but leave them at the mercy of the potential dangers on the streets of Arusha and other parts of the world where they must carry out investigations for their clients case. Many are those whose hotel rooms have occasionally been ransacked by God-Knows-who in their absence while some defense investigators have received menacing threats in the course of their work.

When I ventured to make inquiries from a UN official in charge of the Legal Assistance Program at the Tribunal about the plight of the defense counsels, the only explanation I could get from him was that the UN Tribunal was independent of the defense team and it was the responsibility of the lead Counsel in a defense team to take security measures for his defense team.

A defense investigator Ignace Rudahunga was at one time harassed by individuals on a public transport bus who threatened him in Kinyarwanda while he was [as- delete] on his way back from Malawi where he had gone to carry out investigations for the defense team. He had to rely on the local Tanzanian police to assure his security back to Arusha. Now imagine if those menacing strangers had been able to snatch the documents he was carrying containing his research investigations. The defense client would definitely have had his case jeopardized.

The judges too, despite their fancy lifestyles and secure environment also appear to have their hands tied by invisible forces. At one time, the judges declined a defense counsel team the right to develop arguments on the responsibility of the Rwandan Patriotic Forces (RPF) in the genocide. The genocide suspects must have the possibility of using all means at their disposal that would strengthen their case but the infringement of their rights to a fair trial can take many forms.

A visit to the Tribunal also galvanized my mind to ponder at the level of international debates and solutions proposed to African problems. I was convinced after my intellectually enriching sojourn at the tribunal that the debate on issues affecting Africa such as the UN Tribunal for Rwanda was still not as elevated as they should be to allow public opinions in African societies to draw lessons from the evils of genocide. I Found myself blaming the Media and myself for not bringing out the multi-facetted aspects of the trials as sharply as possible to the public eye. But maybe there was a reason why the public except perhaps those in Rwanda, appeared to be vaguely aware about what really goes on at the Tribunal except that it was a court to judge genocide suspects. In an attempt to go beyond the usual statements provided to the Media by the prosecution for publication, I chose to venture deeper into my analysis in a bid to find out what was the motivation of setting up the Tribunal besides passing judgment on the genocide suspects.

For starters, the solutions proposed by the international community to African problems are not often accompanied by adequate resources commensurate with the task at hand. Such setbacks have the inherent danger of not fully helping to resolve a crisis once and for all or to enable others not directly affected to draw lessons from such crises.

Take the case of the Rwandan UN Tribunal at Arusha. The United Nations has endowed itself with a tribunal, the first of its kind on African soil. But how many ordinary Africans and more precisely the locals in Arusha are drawing any lessons from it?

In principle, court processes are expected to be public for ordinary peoples eager to follow proceedings to have access to the public galleries. By giving the public as much an opportunity as possible to follow proceedings in a way helps to ingrain in their minds lessons about the evils of such horrendous crimes as the genocide.

But reports covered by the Media there are rarely read by the average African on the street because most Media present at the tribunal are international Media whose wider audience is captured through the internet. Now how many ordinary Tanzanians have access to cyberspace? What's the point of creating a tribunal in Africa if even the locals in these countries can not draw lessons simply because the tribunal has few seats at the public galleries, less information is filtering to the local Media and the public must have authorization to enter the court?

The Arusha locals live next to the Tribunal but my observations revealed that apart from vaguely being aware that there is a UN Tribunal on their front door because they see the UN flags and symbols at the entrance, most are largely unaware about what exactly transpires inside from the time suspects are brought in to the actual proceedings. Their walk abouts in or around the vicinity of the Tribunal gives all indications that they are as detached from the proceedings as the planet Mars is from Jupiter.

What's the point of setting up the Tribunal in Africa if the ordinary man on the street who most often is vulnerable to manipulation is not well informed that he can be condemned for genocide? Generating his interest in the trials at Arusha would have been a first step for him to draw such lessons.

But who is to blame? Why such public disinterest and apathy, yet the Rwandan genocide could have happened any other place in Africa including Arusha, Tanzania? Why the low level of interest from the public?

The reasons could be multiple but could also be because the public galleries at the Arusha Tribunal are designed in such a way as to accommodate as limited a group of people as possible because only about 20 seats at most cover the tiny public gallery. In the event that hundreds of Tanzanian locals were to choose to visit the tribunal, not many could fit into the tiny gallery. At best the seats are often already filled up by sometimes tourists on a visit to the town curious to have a glimpse of the Tribunal or Rwandans who are directly concerned, but very rarely ordinary Tanzanian locals. How then can these local Tanzanians draw lessons first hand that one can be condemned for genocide if they do not have an opportunity to be well informed and hopefully draw their interest to the trial proceedings.

One would have expected that if drawing lessons from the Rwandan genocide was also one of the major driving reason for the setting up of such tribunals, at least television screens could have been made available in public vicinities for ordinary peoples unable to access the public galleries. Unfortunately such screens, apart from the few installed at the public galleries, are only also to be found at various locations where certain " select" individuals can monitor proceedings. Such individuals are widely believed to have as their major duty to monitor court proceedings in order to report back to the Rwandan government about what was said at the Tribunal and by whom.

Separating the public galleries from the proceedings is a bullet proof window though which the public can see the inside of the court in which the judges, the prosecutors, witnesses, accused and defense attorneys play their respective roles.

A television screen records all proceedings as they happen including televised images of the various stakeholders in the court as well as what is said by whom including the judges comments as he regulates proceedings.

The absence of insightful media analysis on the trials that go deeper into the various aspects of the trials have also not rendered justice to the international public opinion understanding of the proceedings. Instead the media at Arusha is merely engaged in what could at best be described as mechanical propaganda for the Tribunal as they merely appear to be content to issue aspects of the trials that fall in line with the expectations of the prosecutor and very rarely on aspects of the defense interventions during proceedings particularly when these are perceived to be injurious to the prosecution. Or better still since the workings of the Tribunal leave a lot to be desired, maybe it explains the media lethargy and disinterest to shade light on the issues that would give a poor impression of the prosecution.

There indeed is a lot of happenings at the UN Tribunal for Rwanda than meets the eye and which could make interesting reading and understanding of the supposed justice being meted out at Arusha. The weak media focus on the trials have rendered poor any possible international public opinion debate on the process and the deep seated climate of fear, suspicion, surveillance and uneasiness surrounding the Tribunal.

It may take years before the trials of all the genocide suspects are dispensed with but at the end of if it all JUSTICE must indeed be seen to have been done. The UN must indeed rise to the occasion as the world can no longer afford any more of UN blunders particularly in Africa.

In the meantime, one hopes that the planned UN Tribunal for Sierra Leone would draw the necessary lessons from the Rwandan ICTR in it's bid to ensure justice is really seen to be done.

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FAIR USE NOTICE: This page contains copyrighted material the use of which has not been specifically authorized by the copyright owner. Global Policy Forum distributes this material without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. We believe this constitutes a fair use of any such copyrighted material as provided for in 17 U.S.C § 107. If you wish to use copyrighted material from this site for purposes of your own that go beyond fair use, you must obtain permission from the copyright owner.