Judge Eric Mse, President of the International Criminal Tribunal for Rwanda (ICTR), is passionate about what his court has achieved. Dont convict the tribunal before the work is over, he argues. Results have been decided, are being decided and will be decided.
Certainly, the ICTR has broken new legal ground with what Judge Mse terms an abundance of case law streaming from the tribunal every week. His tribunal has issued between 800 and 1,000 important judgments on international law, each one complex and legally groundbreaking.
Andyetdamning criticism continues to haunt it. While around 100,000 suspected genocidaires are languishing in Rwandan prisons, the ICTR has convicted just 18 defendants of genocide and crimes against humanity and delivered 15 judgments against21defendants. Another 21 are awaiting trial.
Despite the groundbreaking finding in the trial of Jean-Paul Akayesu (the first time an international tribunal has been called upon to interpret genocide), the ICTR has handed down just one conviction for rape, and the rumoured involvement of the Tutsi-led Rwandan Patriotic Front in crimes in 1994 has yielded not a single charge against any Tutsis.
Although the ICTR was set up in November 1994, it was not until two years later, in January 1997, that it heard its first case. Judge Mse and registrar Adama Dieng both admit that the tribunal was slow off the mark. However, as Dieng points out, the complexity of the trials, the burden of translating proceedings between Kinyarwanda, English and French, and the time it takes to apprehend and arrest defendants, have all meant the trials are lengthier and more expensive than at the domestic level.
In response, the ICTR has adopted novel ways of accelerating proceedings. At the pre-trial stage, most motions are decided on briefs to save time and the costs of defence counsel travelling to attend oral hearings. Motions are decided largely by a single judge. During trials, however, many motions are dealt with orally, and where a judge falls ill, dies, resigns or is not re-elected, the trial can continue with a substitute judge. So successful have these initiatives been, that many have been adopted by the Sierra Leone Tribunal.
At the time of the ICTRs creation, Rwanda was still too unstable to house an international tribunal, so it instead found a home in Arusha, Tanzania. While the move was a boon for the Tanzanian government, its effect on Rwanda has been problematic. The Rwandan capital Kigali is a difficult 12-hour drive from Arusha, and the ICTR has struggled to be heard and understood in Rwanda itself.
Judge Mse points to the ICTRs outreach programme, which has tried to communicate its work to the outside world, but he admits: The fact that were here has created a certain distance between us and Rwandan society, but now were here we cant move back to Rwanda. We have to make the best of the situation.
In truth, 18 convictions does not sound like much, especially in light of the manythousandsof Rwandans who participated in the genocide. But from the outset, the ICTR never sought to try all those involved in the massacres of 1994. Instead, its targets are the architects of the genocide orthosewhoplayed prominent roles. Among these have been a former prime minister and other politicians,journalists, religious ministers and members of the military.
The ICTRs focus on the architects of the genocide has meant that Rwanda has been left to deal with the ordinary perpetrators of the genocide itself, with mixed success.Lastyear,in response to more than 100,000 prisoners languishing in overcrowded prisons, Rwanda ann-ounced the release of over 22,000 genocide suspects. Earlier this year, Rwanda set 15 March as a deadline by which suspects had to confess if they were to be released and have their sentences reduced by as much as half a move that horrified some survivor groups.
Rwanda has also introduced gacaca (on the grass) trials a sort of customary, community-based justice. This can be problematic: in one case, a former journalist at Radio Rwanda was arrested in 1994 but did not appear before a judge until 1997. Despite a gacaca trial clearing him of genocide, he remains in detention.
More generally, international criminal justice and the ICTR in particular have been treated with scepticism by the international media, which has questioned the ability of an international tribunal to prevent another genocide. But Judge Mse disagrees. At the national level, we believe in punishment as a deterrent and have done for hundreds of years, he said. Punishment has a stigmatising and a deterrent effect. At the international level, theres no reason to think any differently.
International jurisprudence only started 10 years ago. At the domestic level, punishment has not eradicated crime. But I have the firm conviction that the steady work of the international tribunal will have an impact on peoples mindsets and influence the behaviour of decision-makers.
Tribunal registrar Dieng agrees, arguing: The perpetrators in Rwanda in 1994 committed the genocide under the cloak of impunity. They thought they were above the law. The tribunal has delivered an important message that the rule of law will be enforced to the international level.
It may be too early to judge the ICTRs achievements, but Dieng insists that, for national leaders at least, the message is already being heard: Mass human rights crimes such as genocide and crimes against humanity are unlikely to go unpunished in the new international legal order.
Creation of the ICTR
In November 1994, after a request from the Rwandan government, the UN Security Council passed Resolution 955, establishing the International Criminal Tribunal for Rwanda (ICTR). The ICTR was set up with a specific mandate to prosecute those responsible for genocide and other serious violations of humanitarian law committed in Rwanda, or by Rwandans in neighbouring states, during 1994. To carry out its mandate, the international community granted the ICTR a whopping $1.8bn (1bn) budget and 872 staff.
The ICTRs achievements
In its seven-year history, the ICTR has notched up an impressive ream of jurisprudential firsts.
Jean Kambanda, former Prime Minister of Rwanda
The first time a head of state acknowledged guilt for genocide and was indicted and convicted for genocide. He is now serving a life sentence in Mali.
Jean-Paul Akayesu, bougmestre of Taba commune
The first case in which an international tribunal was called upon to interpret genocide. It found that rape and sexual violence may constitute genocide if the intention is to destroy a targeted ethnic group.
Jean-Bosco Barayagwiza and Ferdinand Nahimana, senior media officials
The so-called media cases are the first judgments since the conviction of Julius Streicher at Nuremberg, in which the role of the media was examined in the context of international justice. In sentencing Nahimana, the chamber said: You were fully aware of the power of words, and you used the radio to disseminate hatred and violence. Without a firearm, machete or any physical weapon, you caused the death of thousands of innocent civilians.