Global Policy Forum

By Kathy Marks

Seven years after its establishment immediately following the genocide in Rwanda, and more than four years since the beginning of the first trial, the International Criminal Tribunal for Rwanda (ICTR), based at Arusha, Tanzania, has to date handed down verdicts on only nine individuals. Of sixty-nine indicted suspects, forty-five have been arrested. Not one of the alleged masterminds of the genocide has been brought to trial – including Colonel Theoneste Bagosora who has been in prison for five years. Most of the masterminds of the genocide, whether officially indicted by ICTR or not (due to lack of evidence), are able to live freely in many countries, including the DRC, Gabon, Kenya, and also France and Belgium.

With more than 800 employees, three trial chambers presided over by nine judges, and a budget of around 90 million US dollars, the performance of the ICTR is lamentable. Between July 1999 and October 2000, the only substantial case heard [1] was the trial of a single accused, Ignace Bagilishema, the former mayor of the village of Mabanza, which has just concluded. Five judges out of nine have spent more than a year and a half without hearing a substantial case and one of them had managed by last March to attain a record 28 months without hearing a substantial matter.

There are some points in the ICTR's favour. It has provided indisputable recognition of the Rwandan genocide and has politically neutralised the "Hutu Power" movement's agenda of Tutsi extermination. However, seven years on, it has still not been able to shed light on the design, mechanisms, chronology, organisation and financing of the genocide, nor has it answered the key question: who committed the genocide? Compared to the International Criminal Tribunal for the former Yugoslavia (ICTY), the ICTR has suffered from international disinterest and a shocking lack of media attention. That is in part because the jurisdiction of the ICTR is limited to the trial of crimes committed in 1994, while the ICTY's jurisdiction is not subject to any time limit.

The symbolic existence of the tribunal has also not discouraged the ongoing protection in certain capitals (Kinshasa, Brazzaville, Nairobi among others) of more than a dozen powerful Rwandan Hutus who are among the principal genocide suspects. Neither does it appear to have dissuaded the perpetrators of the 1994 genocide and the war between the former Rwandan government of Habyarimana and the Rwandan Patriotic Front (RPF). The perpetrators of the genocide have rearmed with complete impunity in the refugee camps of eastern Congo, leading to the resumption of the war by the RPF in 1996 and again 1998 on the territory of the Democratic Republic of Congo, where war crimes and crimes against humanity continue to be committed by both sides.

It is certainly not the responsibility of the judges of the ICTR to write history. But their failure to complete the central tasks of delivering justice and establishing a record of events also prevents them from contributing to another mandate set by the Security Council: national reconciliation between the Hutu and Tutsi communities. The fact is that the political relevance of that mandate has been rapidly overtaken by the continuation and regional spread of the conflict. For the majority of Rwandans, the ICTR is a useless institution, an expedient mechanism for the international community to absolve itself of its responsibilities for the genocide and its tolerance of the crimes of the RPF. The Rwandan government complains of the squandering of money and resources while 130 000 prisoners fill its jails and its courts have tried more than 4000 suspects; the survivors of the genocide find the tribunal distant and indifferent to their lot, and the victims of the crimes of the RPF denounce it as an instrument of the Kigali regime, seeing the ICTR as a symbol of victor's justice.

The important task of the ICTR seems to have been lost in daily dysfunction and internal bureaucratic conflict. The geographic split of the office of the Prosecutor between Arusha, Kigali and The Hague has seriously impeded investigations, and the long absences of judges and defence lawyers has not assisted trial proceedings. There is now a grave risk that those in custody will be released because of the failure to bring them to trial after a period of years. The ICTR must immediately focus on meeting its mandate, while the UN Security Council must ask the prosecutor to set a deadline for investigations, and ask the judges to publish a trial schedule. Every day the mission of the ICTR becomes more of an historic exercise, with less and less chance of having an impact on events of the present. To tolerate such a situation, and support it for too long, would be a second betrayal of the people of Rwanda.

Above all, in the short term, it is imperative to establish priorities among pending cases, and bring to trial those who are already in custody. Three of the key groups that were used by Hutu extremists in the former Rwandan leadership were the army, the interim government and the media. The trial of key media figures is underway. The trial of military figures, many of whom are already in prison, should also begin as a matter of urgency. This is extremely important in order to show how the genocide was planned and carried out. The cases against former ministers of the interim government should also begin as soon as possible.

Once the major genocide trials are complete, the ICTR must undertake investigations of crimes committed in 1994 by the RPF. Despite public announcements at the beginning of the proceedings and the promise of co-operation by the government of Rwanda, it's likely that this inquiry will be seriously limited. It is hard to imagine that those in power will, in effect, lift immunity on the military, especially those who are continuing the war in the DRC. It is nevertheless crucial to insist that the regime in Kigali deliver criminals into the hands of international prosecutors, and so give a strong political signal that no crime, past or present, will go unpunished.

If the international community really wants to deliver justice and combat impunity it must urgently reform the operations of the ICTR. The recruitment of judges must be reviewed to ensure that they have real professional experience in criminal justice. They must be made accountable for their activities and performance. The independence of the prosecutor's office must be strengthened and incompetent employees of the prosecutor's office and registrar's office should be dismissed. At the same time, international co-operation between states and the ICTR must be improved in relation to the arrest and prompt transfer of suspects.

UN member states should extend their legal jurisdictions to help the cause of justice in Rwanda. The best example so far has been that of Belgium, which has just tried four Rwandans under a 1993 law that gives its national courts the power to try suspects for genocide, no matter where the crimes were committed.

In the current situation and in the face of such a large task, it is illusory to think of enlarging the mandate of the ICTR to include crimes committed in the DRC in 1996-97, or in Burundi, as some have proposed. Until the permanent International Criminal Court is established, international law must immediately be applied in national jurisdictions to prosecute crimes committed in Burundi since 1993 and in the DRC since 1995. It may also be envisaged that a special court of mixed jurisdiction be created along the lines of those proposed for Sierra Leone and Cambodia. The question of the enlargement of the ICTR may be reconsidered in future, but only if it quickly manages to fulfil its mandate.

In the end, the international tribunal must deliver justice to the victims of the genocide. Certain trials should for example be transferred to Kigali to reach certain audiences and to increase the impact on the Rwandan population. The question of compensation for victims by the creation of an international fund is equally important.

RECOMMENDATIONS

To the United Nations Security Council and Secretariat 1. Ask the Prosecutor to set a deadline for investigations and ensure that the arrest of the masterminds of the genocide is made a priority. Require the judges to provide a court schedule establishing priorities, and initiate without delay the trials of members of the interim government, former senior officers of the armed forces, and political leaders who are already in custody. Ensure that the prosecution strategy of the Tribunal conforms to stated objectives and that efficient methods are implemented.

2. Pass a resolution obliging all states who have tolerated the presence of 17 known fugitives on their territory to make a serious effort to arrest and transfer these persons to Arusha, under threat of sanctions. The names of the states concerned should be cited in the resolution.

3. Provide half-yearly reports on the activities of the ICTR and judges.

4. Give the office of the prosecutor both autonomy of action and financial autonomy to carry out investigations and issue indictments.

5. Create a commission to study the question of compensation for victims of the genocide, taking into account initiatives already put in place by Registrar of the Tribunal and by the government of Rwanda. This complex issue should not be solely in the hands of the Tribunal. The commission may consider the creation of an international fund, run by a board of eminent persons.

To member states of the United Nations

On the search for and arrest of suspects

6. Make the arrest of suspects a political and financial priority for national police. Strengthen assistance to the ICTR in the investigation and seizure of suspects, and put diplomatic pressure on those who are suspected of providing refuge or protection to suspects on their territory, such as Kenya (in the case of Kabuga), Congo-Brazzaville and DRC (Bizimungu, Ntiwiragabo, Mpiranya and Renzaho) and Cameroon (Mpiranya).

On the transfer of suspects

7. Transfer those indicted by the Tribunal as quickly as possible and with respect to the law, in the absence of any special procedure.

On the protection of witnesses

8. Increase the protection options available to the Tribunal so that it can, if necessary, offer to relocate witnesses summoned to appear before it or informers who have assisted the Prosecutor.

On the trial of alleged "genocidaires"

9. Encourage states to adapt national laws, as Belgium has, that give them the universal right to try architects and perpetrators of genocide.

On carrying out sentencing

10. Use diplomatic pressure to encourage African states to respond favourably to requests for co-operation with the ICTR on the issue of sentencing and provide financial support to judicial co-operation programs concerned with receiving prisoners convicted by the Tribunal.

To states providing financial support to the Tribunal 11. Demand a full public audit of the accounts of the Tribunal.

To the governments of France and Belgium 12. Open investigations into suspects known to be living in France and Belgium, whether on the official list of indictments or not, such as the family of former President Habyarimana. In cases already underway, such as that of the priest Wenceslas Munyeshaka, speed up proceedings.

To the government of the United States of America 13. Establish an office alongside the office of the prosecutor to administer funds for a program of rewards for information about suspects wanted by the ICTR.

To the Prosecutor and the President of the ICTR 14. Clarify and simplify the issuing of arrest warrants and if necessary, inform the UN Security Council of non-co-operation of certain states if they are shown to knowingly house suspects wanted by the Tribunal.

15. Set a final date for investigations and prosecutions and present a schedule for the trial of those who are already in custody.

16. Urgently resolve the problems observed between the registrar of the court and the prosecutor's office in relation to the allocation of funds, notably by giving the prosecutor's office financial autonomy.

On judicial co-operation with Rwanda

17. Strengthen legal co-operation initiatives with national courts in Rwanda. The "young jurists mission" and the representation of Rwandan judicial officers at Arusha should be developed. The exchange of information between the two legal systems should be encouraged.

On the Outreach program

18. Seek supplementary funds and support existing Year 2000 "outreach programs" which aim to improve knowledge about the work of the ICTR in Rwanda.

On the holding of trials in Kigali

19. Arrange, as soon as possible, to conduct certain trials of the ICTR in Kigali to increase the impact of the proceedings on the people of Rwanda. If transferring the trial is too costly, or is inconsistent with the rights of the defence, then at least some hearings should be held in Kigali.

On court delays and the operation of the Tribunal

20. Stop the unjustifiable delays, which have characterised the activities of the Tribunal in the past two years and fulfil the mandate promptly, obliging all chambers of the Tribunal to begin hearing substantial cases immediately and compelling the appeals chamber to speed up proceedings.

21. Ensure the recruitment of competent and efficient investigators and lawyers to the office of the prosecutor.

22. Examine the possibility of insisting that defence lawyers establish residence in Arusha once they are appointed, except with the permission of the President of the Tribunal.

To the government of Rwanda 23. Assist the work of the Tribunal as much as possible in Rwanda and give guarantees of co-operation especially in relation to crimes committed by elements of the RPF in 1994, immediately suspending suspects from official functions, demobilising them and handing them over to international legal authorities.

24. Modernise the legal system, especially in carrying out sentencing, to encourage other countries in the region to extradite genocide suspects to Rwanda.

[1] A substantial case is defined as the taking of witness testimony, their questioning by the prosecutor, their cross-examination by the defence or the taking of expert evidence during a public hearing. The trial of the former mayor of Mabanza, Ignace Bagilishema began last December and the verdict is expected on 7 June 2001.