The International Criminal Tribunal for Rwanda has become aware, from press reports and enquiries, of a critical report issued by the International Crisis Group on 7 June 2001 titled: “International Criminal Tribunal for Rwanda: Justice Delayed”. The report makes a number of important statements. Several of these statements are inaccurate and misleading. Others, while they would have been accurate some years or months ago, have been overtaken by the reforms in the Tribunal and the increased pace of its judicial work over the past year. Yet some others are directed largely at actors external to the Tribunal such as Member States of the United Nations and address issues and factors well outside the Tribunal’s purview or control.
The essence of the ICG report is captured in the organization’s media release, dated 7 June 2001, that heralded it. The release stated: “Today’s verdict in Arusha by the International Criminal Tribunal for Rwanda, in the case of Ignace Bagilishema, is only the ninth in seven years – a lamentable record. The Rwanda Tribunal is failing to meet its basic mandate – to deliver justice to the people of Rwanda and provide a record of events. We still don’t know who committed the genocide. While the Tribunal claims a significant achievement in jailing the former Prime Minister of Rwanda, the most important suspects have not been arrested”. In its Executive Summary the report states that “a majority” of Rwandans see the ICTR as “a useless institution” and find the Tribunal distant and indifferent to their lot, while others see it as partial to the Kigali regime, “a symbol of victor’s justice”.
While the Tribunal believes that its accomplishments, impartiality and relevance are self-evident, it nevertheless considers it helpful to public understanding to make the following clarifications.
The three Trial Chambers of the Tribunal are each handling at least two trials, several with multiple defendants in joint trials. A total of nine individuals are on trial in five cases. A sixth trial with six accused persons will open tomorrow 12 June. Thus, in the next 24 hours, 15 defendants will be on trial before the ICTR. Other trials will begin later this year. It is self-evident that this indeed is a busy and active judicial docket. In other words, the ICTR is doing exactly what it was established to do: holding trials in order to dispense justice for the Rwandan genocide. The impression created by the ICG report is thus not accurate and does not reflect the reality on the ground in Arusha.
The Tribunal has been criticised for a slow pace of trials in the past, with some justification. But its Rules of Procedure and Evidence have been progressively revamped by the Judges to quicken the pace of trials without compromising the integrity and credibility of its judicial process. The Prosecutor’s new strategy of joint trials of defendants accused of conspiracy and involvement in the same crimes is expected to expedite the judicial work of the court in the medium to longer term. Indeed, it was the preparation of that strategy – seeking the confirmation by the Judges of amendments to previous indictments to take account of this new approach, a process that involved complex legal issues – that contributed to a misleading appearance of a lull in the judicial work of the Judges for several months. The present frenetic pace and volume of trials is the outcome of these two processes.
We differ with the ICG’s conclusion that the ICTR has not answered the question: who committed the genocide? Firstly, the full answer to that question is inevitably a process and not an event. That is why a judicial process was established by the United Nations to answer the question in an incontrovertible fashion.
Secondly, the Tribunal has, in fact, provided the answer to a very significant extent. Its judgements have provided, and continue to provide, an indisputable record for history. The genocide was planned and committed by erstwhile powerful individuals such as former Rwandan Prime Minister Jean Kambanda, former Governor of Kibuye Clement Kayishema, former Mayor of Taba Jean-Paul Akayesu, and several others that have been found guilty – some by their own confessions – by the Tribunal. Consistent with the highest standards of international human rights, accused persons before the Tribunal are presumed innocent until proved guilty, and several other high-ranking members of Kambanda’s Interim Government in 1994 including cabinet Ministers, political party leaders and other senior figures are currently facing trial.
The Tribunal considers it as most regrettable that the ICG attempts to play down the significance of the Kambanda verdict, both in Rwanda and globally. The confession, conviction and sentencing of the former Prime Minister of their country for genocide was a cathartic moment in the post-genocide healing process in Rwanda. At a global level, the Kambanda judgement – the first-ever conviction in history of a head of government for genocide – set an important precedent for the judicial accountability of powerful political and military leaders for human rights crimes and the efficacy of international criminal justice in general. It happened before the case of former Chilean leader Augusto Pinochet and the indictment of Mr. Slobodan Milosevic, former President of the Federal Republic of Yugoslavia by the International Criminal Tribunal for the former Yugoslavia.
A vast majority of Rwandans have shown a marked increase in their appreciation of the work of the ICTR and their support for it. That turnaround in relations between Rwanda and the Tribunal is the result of the progressive evidence of the Tribunal’s effectiveness, its increased visibility in Rwanda because of its Outreach Programme there, and the Support Programme for Witnesses and Potential Witnesses, which have been recognised by the ICG report as achievements. While more can certainly be done to enhance the impact of the ICTR in Rwanda, the Tribunal’s contextual relevance is not in question, and it is no longer seen as distant and inaccessible by most Rwandans. If anything, the general reaction of Rwandans to the Tribunal is the exact opposite of the picture portrayed by the ICG report.
Rwandans know that Kambanda and other accused ringleaders of the genocide who fled Rwanda after the genocide were effectively beyond their country’s reach, and that without this International Tribunal that is bringing such individuals to trial, they would almost certainly have escaped justice. That is the fundamental relevance of the ICTR to Rwanda. The ICTR is an ad hoc Tribunal and cannot replace the long-term responsibility of the Rwandan State and its judicial system. Furthermore, as the Prosecutor has indicated, she fully intends to indict members of the Rwandan Patriotic Front against whom evidence of atrocities is established.
The context in which the operations of the Tribunal are undertaken is not recognized in the ICG report, thus creating a skewed picture. The ICTR has not been functioning for seven years as the report states. It was officially established by resolution 955 of the Security Council on 8 November 1994. But the resolution locating the court in Arusha was adopted by the Security Council in February 1995, its first Judges were elected by the General Assembly in May 1995, and its first Registrar was appointed in September 1995. The Tribunal’s first indictment was confirmed and issued in November 1995. The ICTR has therefore been in actual operational existence for just over five years. Sensational statements of the Tribunal’s longevity are not helpful to public understanding of the Tribunal.
The Tribunal had a very difficult start for two reasons: It is located in a small town in a developing country. The infrastructure necessary to facilitate the implementation of the court’s complex tasks was simply not present on the ground awaiting the Tribunal’s deployment, and much improvisation had to be made. And it was navigating uncharted legal and operational waters as a pioneer institution. The initial delays in the court’s effective take-off should therefore not be a source of surprise to any informed observer. But the real story is that all of this is yesterday’s news, and the ICTR is now a fully functioning institution that is effectively discharging the task assigned to it, a current reality brought about by imaginative and systematic reforms of its administrative and judicial support operations and its judicial rules of procedure.
Needless to say, like any other institution, the ICTR is not perfect, and welcomes constructive criticism. That is why the Tribunal regrets that it was not officially informed or consulted by the ICG in the process of the preparation of the report in question, as is the normal practice with such exercises. Such a fundamental indicator of transparency would have afforded the report the benefit of a more accurate perspective. As a result of this important procedural defect, the ICG report, as stated earlier, presents numerous outdated and inaccurate statements as facts, thus misleading public opinion on the work of the ICTR.
Finally, it is important to note that international criminal jurisdictions are scarcely fully appreciated while they are in existence. Being an instrument of the search for justice and not a popularity contest, their decisions and operations are perceived differently by different interests at different times. Their impact is more accurately assessed with the benefit of hindsight, further down the lane of history. This is precisely the case with the Nuremberg trials. Several years hence, it will be clear, we believe, that the ICTR has effectively discharged its mandate: to bring to justice the persons responsible for the genocide and other serious violations of humanitarian law in Rwanda in 1994, thus contributing to national reconciliation in Rwanda. The support and cooperation of several Member States of the United Nations in particular and the international community in general to this ongoing process is most appreciated by the Tribunal.