The New Times (Kigali)
May 25, 2005
ICTR: Trial And Error
Oscar Kabbatende
Kigali
The International Criminal Tribunal for Rwanda (ICTR) has set itself
the target of completing the trial by the year 2008 and while on
paper this may look feasible the lay of the ground looks utterly
against this ever happening. This is particularly pertinent in view
of the commemoration of the 11th year since the 1994 Genocide.
The crime of genocide was actually defined after two of the three
Genocides of the last century had already taken place, that is to say
the Armenian and Jewish genocides. Following the 1948 Convention on
the Prevention and Punishment of the Crime of Genocide, there have
been widespread massacres in Cambodia (an estimated 2 million killed
by the Khmer Rouge) and Yugoslavia with the crime of genocide alleged
in Srebenica and of course the largest failure in Rwanda. The ICTR in
its own way was supposed to be a breath of hope for the cynical in
this world who had learnt the hard way that the UN’s resolve to end
genocide once and for all did not exist at all. At least the culprits
would be tried.
It is perhaps instructive to note that while the Government of Rwanda
had requested the Security Council to set up an ad hoc tribunal to
try the perpetrators of genocide, when the matter was brought to vote
by the council, Rwanda opposed the resolution. This was simply
because the tribunal was not going to employ the death penalty,
jurists cited international standards of condemnation, which eschew
capital punishment as barbaric. Rwanda’s point of view was that as
national law provides for the death penalty (by firing squad) and it
was quite likely at the time (1995) that many people standing trial
for crimes of genocide would eventually be put to death it was really
a question of consistency. How do you put the conseilleur who killed
two people before a firing squad while the big pin who forced him to
commit these crimes sits in an air-conditioned courtroom
contemplating a life sentence? On these grounds Rwanda opposed the
creation of the tribunal they had proposed in the first place.
Until 2003, the relationship between the ICTR and Rwanda was really a
record of complaints and counter-complaints until Prosecutor Carla
del Ponte was assigned a single tribunal, the International Criminal
Tribunal for former Yugoslavia (ICTY) with Bubaker Jallow taking up
the position of Prosecutor of the ICTR. It was the same year the ill
fated ‘joint trials’ came into existence.
The ICTR hailed them as a means of accelerating the pace of the trial
of the accused already in detention. This was music to the ears of
many Rwandans who were growing increasingly frustrated with the slow
pace of justice in Arusha. Now, two years on, the same people tell us
that the joint-trials are too cumbersome and ‘time consuming’ and as
a result the ICTR was scraping them.
It would seem that in a bid to please Rwanda, the tribunal is making
all the right noises and making a mess of everything else. The ICTR
wants to move some trials back to Rwanda, a noble move, right? But
then again how many countries will extradite criminals back to Rwanda
for trial especially if they have a bumpy relationship with the
administration in Kigali? Do you see France doing it? So in the end a
noble gesture like bringing the trials to Kigali will in fact scare
off many countries from extraditing indicted persons.
Relevant Links
Central Africa
Post-Conflict Challenges
Rwanda
Legal and Judicial Affairs
It would be very easy to simply sit back and pour scorn on the ICTR
for all the things its doing wrong (and there are very many) but then
one has to think about the magnitude of the crime of genocide.
The Nuremberg trials were far from perfect and even these were made
easier by the fact that most of the Nazi criminals had gone into
hiding or were already dead by their own hands or by the hands of
others (especially the Russians). The fact is that now like in 1946,
the world – including ourselves – does not know how to punish
genocide and it is likely that we will all bumble along trying cases
by trial and error because this is perhaps the ultimate crime.
Unfortunately there is nothing like the ultimate justice in
existence, at least not yet.