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Rwanda: The Two Faces of Justice

1.

Eight years ago, in the immediate aftermath of the extermination of 800,000 Rwandan Tutsis and moderate Hutus, Rwandan survivors and Western diplomats vowed publicly, “Justice will be done.” But no country or international institution had ever processed 800,000 murder cases before, and the pledge would prove far easier to make than to meet.

Today, two judicial experiments are underway in Central Africa, which are intended to respond to Rwanda’s demand for retribution and truth, and its need for deterrence and reconciliation. The first is the International Criminal Tribunal for Rwanda (ICTR), a United Nations court convened in Arusha, Tanzania, that is trying the masterminds behind the genocide. The second is the more traditional, and far more charged, process of community catharsis in Rwanda itself, which is meant to resolve the fates of lower-level genocide suspects and to help victims learn precisely how their loved ones were murdered.

The courtroom record of the ICTR has been obscured by the scandals that have plagued it since its creation in 1995. Just last year, two investigators working at the tribunal were discovered to be wanted genocidaires. They had acquired false passports and been hired by the court’s unsuspecting defense lawyers. Both men went from being paid indirectly by the UN to being imprisoned by it. The headline in one African paper said it all: “SHOCK AS ICTR MAN TURNS GENOCIDE SUSPECT.”

The more fundamental criticism of the tribunal is that, despite the $500 million spent so far, the people in charge are lazy or incompetent and its proceedings are too slow. “The tribunal was set up in 1995 and there have been nine decisions handed down so far,” says Martin Ngoga, the Rwandan government’s representative at the tribunal. “That is an average of one-point-something decisions each year, and it now costs $90 million a year!”

The early delays could be attributed at least partially to logistics. The court took up space in a dreary, largely windowless concrete conference center in Arusha, Tanzania, a town of 200,000, with dusty, unpaved roads. The building, which has the name “The Geneva of Africa” on its façade and opened in 1978, looks more like a Stalinist blockhouse than it does an emblem of the world’s commitment to justice. When the UN lawyers began arriving, the conference center contained no courtroom and lacked reliable phones, electricity, and Internet service. On my first visit to Arusha in 1998, the tribunal’s library consisted of two small wheeled trolleys piled with a random assortment of donated international legal reference books.

Legal talent was not easy to attract. The hardy few who volunteered had to survive the notoriously tortuous UN hiring process, which demands mounds of paperwork, often prefers multinationality to experience and skill, and defers decisions on appointments for six months or more. A 1997 UN audit blamed the court for corruption and gross mismanagement. Court reporters could not type. UN finance personnel embezzled funds. In February 1997 Secretary-General Kofi Annan dismissed the first “registrar,” or top administrator, and the deputy prosecutor.

Judge Navanethem Pillay, a former South African anti-apartheid defense lawyer and supreme court judge, was one of the first judges to arrive in Arusha. “The early years were extremely frustrating,” she says. “I came thinking, ‘Each trial chamber can complete a case every three months, and we’ll finish all the cases in our first four-year mandate and I’ll be out of here.’” Pillay, who became the president of the court in 1999 and tried to make it act more energetically, will conclude her second four-year term in June 2003. She has insisted on much heavier workloads for the nine judges, and because the trial pace has quickened at last, Pillay predicts that some sixteen decisions will be delivered by the end of her term. This will still leave forty-five suspects awaiting trial or judgment and an untold number of suspects yet to be apprehended.

The attention paid to the UN tribunal’s many shortcomings has allowed its two main achievements to go unheralded. It has jailed and tried Rwanda’s “Most Wanted,” its “big fish,” the Hutu leaders who scattered around the globe after they were defeated by Tutsi rebels in July 1994. Among the sixty-one Rwandan Hutus currently in custody are eleven former government ministers. Arrests have been made in twenty countries. If the UN tribunal did not exist, these men and one woman would likely still be plotting genocide from exile.

Secondly, while it is true that the UN court’s proceedings have been plodding at best, some of the court’s judgments have been groundbreaking. In September 1998 the UN court issued, for the first time in history, a conviction for genocide, a crime that was not tried at Nuremberg. In convicting Jean-Paul Akayesu, a small-town Rwandan Hutu mayor, the tribunal also held that systematic rape was a crime against humanity and sexual violence a form of genocide. In December 1998 the UN court in Arusha became the first to convict a former head of state. Indeed, as virtually every ICTR official I interviewed defensively noted, Jean Kambanda, the prime minister of Rwanda’s genocidal interim government, pleaded guilty to genocide and was sentenced in September 1998, two and a half years before the more notorious Serbian president, Slobodan Milosevic, had even taken up residence at The Hague.

Two important trials are taking place at present. Colonel Theoneste Bagosora is charged with being the grand strategist behind the genocide; three propagandists—two journalists and one ideologue—are charged with genocide for using the Rwandan press, radio, and television to incite the massacres. The notorious Radio Mille Collines (RTLM), which one witness called the genocide’s “biggest machete,” used its broadcasts to portray the Tutsi as demonic threats to Hutu survival. But the Arusha court will have to decide whether RTLM propaganda should be considered protected speech or deliberate incitement to genocide. With the permanent International Criminal Court (ICC) likely to open for business next year, a guilty verdict could make propagandists around the world a little more nervous about fomenting hate for a living.

But, as with the genocide itself, the world has shown little interest in the criminals who carried it out. More than five hundred journalists descended on The Hague to cover the start of the Milosevic trial in February 2002; just forty came to Arusha to cover the launch of the trial of Bagosora, a man few outside Rwanda would be able to identify as the genocide’s leading culprit. While I watched a day of memorable jousting between the prosecution and Ferdinand Nahimana, the alleged brains behind the hatemongering at RTLM, the only people with me in the public gallery were a Kenyan schoolteacher, two Australian backpackers, three British safari-goers, and three Rwandans, who I later learned were ICTR employees.

Whatever the ICTR’s successes in punishing leading genocidaires, or setting legal precedents that might deter would-be thugs and aid the new ICC, the ICTR’s biggest fault is that it has hardly any connection with Rwandans. “The tribunal was not set up for the people of Rwanda,” says Gerard Gahima, Rwanda’s attorney general. “It was set up to ease the world’s guilty consciences, and in everything the court does, this shows.”

2.

The UN court is a world away from the people whom international justice claims to serve. The rare Rwandan who tries to visit the UN court must take a bus through four countries to get there—from Kigali, Rwanda, to Kampala, Uganda, to Nairobi, Kenya, to Arusha, Tanzania. The journey takes two days, and costs around $40 for the bus ticket and $20 for a Kenyan transit visa. This is more than most Rwandans earn in a month.

UN officials and Western diplomats weren’t thinking about logistics back in 1994 when, after the most rapid genocide the world has ever known (more than 800,000 were killed in less than three months), the UN Security Council voted to create a war crimes tribunal modeled on the International Criminal Tribunal for the former Yugoslavia (ICTY) that had just been set up in The Hague. The Tutsi rebels who halted the genocide—and who since then have governed Rwanda (which remains 85 percent Hutu)—proposed the creation of an international court to be based in Kigali. If justice was to be done in the name of Rwandans, the Rwandan ambassador to the UN insisted, Rwandans should at least be privy to its proceedings.

But, it was argued, Rwanda’s security was still unstable, and defense witnesses and defendants, mainly Hutu, would be too frightened to travel to what they saw as the fearsome stronghold of the Tutsi enemy. Besides, a UN court would have to maintain some distance from the survivors of the genocide so as not to be charged, as the Nuremberg court had been, with dispensing only victors’, and here victims’, justice. Johannesburg was considered as a possible site. But Nelson Mandela had only been elected in April 1994, and post-apartheid South Africa was considered too new to trust or test.

In the end, despite the Rwandan government’s opposition, Arusha was chosen. It was close but not too close, Western diplomats said, and it had “symbolic value.” It was here in 1993 that a power-sharing deal had been arranged between Hutus and Tutsis, only to be overridden by the genocide.

The distance makes it difficult for Rwandans to follow the trials. But the larger problem is that while the ICTR may be doing justice, it is not doing justice with the Rwandans either in view or in mind. UN judges and lawyers are the first to acknowledge their neglect of what they call “outreach.” In 2000, the ICTR set up an information office in Kigali to try to improve local awareness of the tribunal. The center had 21,000 visitors last year, but virtually all were lawyers, researchers, or university students who were taking advantage of free access to e-mail. Located in a leafy diplomatic section of town, the office can be reached only by the few who live nearby or by the well-to-do who have their own cars. Public buses do not stop in the neighborhood. Astonishingly, the ICTR has translated only three of its nine decisions from English and French into Kinyarwanda, the local language.

Every new UN registrar arrives in Arusha threatening bold steps to get the tribunal’s message “to the people.” In a country with few television sets, a UN radio station was planned, the current registrar, Adama Dieng, tells me. “But then the equipment was diverted to Afghanistan.” Some parts of the major trials could be transferred to Kigali, where the locals would have their first chance to see the leading genoci-daire penned behind bulletproof glass in the defendant’s box. But Dieng asks, quite reasonably, “If you bring a defense witness to Kigali who is wanted by the Rwandan government, do you really think the Rwandans will let him leave? Let’s be serious.” Dieng recently proposed renting out Rwandan stadiums so that people could gather to watch footage of the Bagosora trial on large movie screens. But in this instance, it is the Rwandan government that is skeptical. “I’m not sure stadiums are such a good idea, given how many Rwandans were gathered and murdered in stadiums during the genocide,” Attorney General Gahima tells me.

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