Michael G. Karnavas is a former federal and state assistant public defender.
He has spent the past few months in The Hague, Arusha, Tanzania, and Kigali, Rwanda
observing the International Criminal Tribunals for the former Yugoslavia and Rwanda,
and researching Rwanda's restructuring of its judicial system. He was briefly involved
in representing Jean Paul Akeyesu, the first accused to be tried by ICTR.
Forgiveness can come after retribution and justice not before, unless one is dealing with angels and not human beings.1
Approximately 90,000 men, women and children sit in overcrowded prisons charged with the most deplorable of all crimes -- genocide. Some have waited, or better yet survived, over two years in these prisons. Almost all of them have yet to have even an initial appearance in court, let alone a trial. Though the prisons have much improved, the conditions remain a human rights nightmare. Many inmates suffer from dysentery, malaria, AIDS, tuberculosis and respiratory infections.2 As of May 1996, 377 infants were incarcerated with their mothers and 1163 minors were living with the adult prison population.3
Arbitrary and not so arbitrary arrests continue. The courts are ill-equipped, the prisons overcrowded, most of the trial judges are lay magistrates with as little as three to four months training. None of the 16 Rwandan surviving/non genocidal participant lawyers are interested in defending the accused. Thus unless the government establishes some sort of a legal assistance institution (to be funded by the international community, of course), none of the accused stand a chance of having a fair trial.
To put this picture in perspective one must keep in mind however, that this unacceptable human rights situation is the consequence of the unprecedented genocide which took place between April and July of 1994 when as many as one million Rwandans were massacred.4 In approximately 100 days almost the entire Tutsi population as well as Hutu moderates were eliminated by Hutu extremists. It is believed that the genocide continues, and some human rights monitors accuse the current Tutsi dominated government of committing crimes against humanity.5
Two years after the genocide the dilemma remains: how do you achieve Justice in the aftermath of a genocide where a majority of the population was mobilized to either kill, or stand by and do nothing. Do you execute all those involved (some estimations say as many as 500,000 Hutu were involved)? And if so, would justice not take on the image of a reverse genocide? How do you have "fair" trials if the judges are barely trained and no one is available to represent the accused? Or where the evidence is weak though the probability of guilt is high? And what about the victims and survivors? One's concept of justice will be perceived by another as injustice. As was asked by the government during the 1995 genocide conference in Kigali: "Can classical and non classical processes coexist in dealing with the crimes committed during last year's genocide?"6 If vengeance can only be assuaged by killing those who killed, what does the future hold for this ethnically divided country?
Apocalypse
When you begin extermination, no one, nothing, must be forgiven. But here, you have merely contented yourselves with killing a few old women.
Agnes Ntamabyariro
Minister of Justice, July 1994When the Minister of Justice was urging further extermination, the Hutu residents of Kibuye had already massacred nearly a quarter million Tutsis living in the Kibuye region.7 The genocide in Rwanda was not the result of a spontaneous outburst of ancestral hatred between the Hutus and the Tutsis, rather it was methodically orchestrated and planned at least two years before it started on April 6, 1994. The architects of this holocaust -- Hutu extremists hell-bent on total political and economic power -- sought to involve everyone as killers: young and old, educated and uneducated, men, women, children, government officials, farmers, school teachers, journalists, doctors, nurses, priests, nuns, and relatives. From documented speeches, radio recordings and other evidences, it is widely accepted today that the genocide plan was crystallized sometime in early 1992 when extermination lists were prepared for a death squad nicknamed "Zero Network."8
Over a two-year period, a systematic indoctrination campaign by the Hutu extremist hierarchy was carried out poisoning every level of the Hutu society. The masses were brainwashed and duped into believing that their Tutsi neighbors were "cockroaches" out to destroy the Hutu race. Adding fuel to the fire, the Rwandan Patriotic Front (RPF) and its armed wing of refugee guerrilla fighters (RPA) had been infiltrating Rwanda for several years and had established a reputation for being fierce and brutal fighters because of their widely acknowledged executions of unarmed citizens.
Thus, given this atmosphere, killing the Tutsi took on a form of self-defense; kill first not to be killed. To the naive and uneducated peasantry it seemed all too reasonable. Obedience to authority and group identification are rooted in the Rwandan culture. As explained by François-Xavier Nkurunziza, a Hutu lawyer married to a Tutsi:
In Rwandan history, everyone obeys authority. You take a poor ignorant population, and give them arms, and say 'it's yours, kill'. They will obey. The peasants, who were paid or forced to kill, were looking up to people of higher socioeconomic standing to see how to behave. So the people of influence, or the big financiers, are often the big men in the genocide.9Killing the Tutsi inyenzi (cockroach) and the moderate Hutu ibyitso (accomplices) became the law and the use of the interahamwe (those who attack together) enabled collective participation. The ultimate goal, "the final solution" as it was known, was to eradicate the Tutsi and create a Hutu nation with every social, political and economic sector inextricably bonded by the blood of the genocide. With crude and unsophisticated labor-intensive weapons such as machetes, rocks, clubs with spikes, picks, and garden tools together with grenades and guns, over one seventh of Rwanda's population was wiped out. Many killings took on a sadistic ritual of collective chanting and dancing as women and children were raped (those with AIDS used the killer disease to inflict a slow death); babies were smashed against rocks; victims were mutilated by having their breasts and penises cut off; scores of living victims were soaked with gasoline and torched.10
The international community stood by and watched. Upon acknowledging that a "genocide" is occurring, the signatories of the 1948 Convention on Genocide are required to respond. During this genocide the Clinton Administration tacitly acknowledged in June 1994 that "acts of genocide may have occurred" and Christine Shelly of the U.S. State Department was quick to point out that "there are obligations which arise in connection with the term 'genocide.'"11 Uncontroverted evidence establish that General Romeo Dallaire, the Canadian commander of the UN Forces in Rwanda, had asked for additional troops to stop the "genocide." The U.N. Security Council (the creator of the post-genocide International Tribunal which enjoys primary jurisdiction over the architects of the genocide) reduced his then existing forces from 2500 to 270. The Rwandan Patriotic Army (RPA) ultimately stopped the genocide.12 Query whether the genocide could have been stopped or, whether the refusal of the signatories to meet their obligations under the genocide convention amounts to a criminal act.
Remnants Of A Judicial System
After genocide justice is impossible.13
Gerard Gahima,
Chef de Cabinet, Ministry of Justice
Given that the genocide involved every sector of the Rwandese society, it is not surprising that at the end of the war Rwanda was left without a functioning judicial system. Courthouses were looted and destroyed. Judges, prosecutors, lawyers and judicial police were either killed or participated in the killings. Given the emergency in apprehending the suspected perpetrators, formal procedures for arrests have been ignored. The overwhelming majority of those in prison were arrested by the army or local administrative officials outside the provisions of the law. A mere denunciation without any corroborating evidence remains sufficient to justify an arrest, or being taken into protective custody. If you are Hutu, there is a presumption that you are guilty of being a "genocidaire." If you want to settle an old score or seize someone's property, you can easily find "witnesses" who will denounce anyone for the right price.
The Vice President and Minister of Defense Maj.Gen. Paul Kagame justifies these arrests as follows:
"If we would have lost these people through vengeance, that would have been a bigger problem for us. I would rather address the problem of putting them in prison, because that is the best way to do it for the process of justice. . . ."14
These words are little consolation to the innocent accused when "diseases and deaths in local detention centers, some of them resulting from suffocation due to extreme overcrowding, were on the increase."15
Today, Rwanda is governed by a multiparty parliament. The parliamentarians were appointed by their respective parties and not voted in by their constituents. In actuality, Rwanda is run by the RPF who are pushing their own agenda of absolute control over the Hutu (85 percent of the population).
In gearing up for the dispensation of justice, the government has masterly given the appearance that it has reached out to the international community. Material and technical assistance has enabled the renovation of courthouses and the recruiting and training of inspecteurs de police judiciaire (judicial police investigators), lay magistrates, prosecutors and court staff. The government's goal is to have the genocide cases tried by a specialized chamber of the tribunaux de première Instance (felony trial courts). The judges and prosecutors are likely to have no more than the three-four months training currently being provided by the Ministry of Justice, financed by foreign governments. Nothing is being done for the defense; not much is expected.
In trying to develop a screening process that would perhaps free from detention the innocent, the Commission de Triage was established, comprising representatives of:
1. the Ministry of Defense;
2. internal affairs;
3. intelligence department and
4. the court at the Prefecture and Communal level.The function of the commission is to "examine the cases of the detainees suspected of having participated in genocide and the massacres and to free those against whom there is no evidence for prosecution."16
Though it is considered an "administrative process" and not "judicial",17 the commission's decision not to release a detainee may have judicial ramifications, especially since there is little or no evidence to establish guilt for all but a few detained prisoners.18
Thus far the commission has been functioning on an irregular basis. Getting actual figures has been an elusive task, though the consensus among human rights monitors is that the Commission de Triage has been rather ineffective; many of those released for lack of evidence are re-arrested, and some of those released but not re-arrested have been killed. In one prefecture the Commission de Triage could not function because the prosecutor was in detention, while in another prefecture the triage has never operated.19
In another attempt to deal with the inherent logistical and legal problems resulting from incarcerating thousands of suspected perpetrators, the government passed a bill in July 1995 to suspend the application of the rules of criminals procedure -- specifically the rules dealing with pretrial arrests, detentions and time limitations for trials -- for all persons accused of genocide, massacres, war crimes and crimes against humanity. Under the current constitutional process, every bill passed by the parliament must be examined by the Constitutional Court before it is enacted. On July 26,1995 in a detailed and highly reasoned opinion, the Constitutional Court held the bill unconstitutional. Nonetheless, inspite of the court's decision, the normal rules of criminal procedure continue to be ignored with respect to genocide suspects. In May 1996 another bill was introduced before the Parliament that would retroactively legalize all arrests and detentions ordered since April 1994; it would also extend the time limits and remove the right to appeal against detention decisions in the Code of Criminal Procedure until July 1999.
What Is 'Justice' After Genocide
When these people were committing genocide, they did not go to Europe to study refined methods of murder, they used primitive and crude methods. We should not look for refined legal styles of imposing justice.
Faustin Gacinya
The New Times, op. ed Kigali May 1996
Scratch under the surface and this sums up the general sentiments on what is justice: visceral, swift, absolute. Many in Parliament feel that putting every perpetrator to death is the only way to achieve "true justice." The legislation actually adopted, however, signifies a realization, at least politically if not morally, that to kill everyone who killed is an unacceptable solution.
Crafting legislation that will be "acceptable" has not been an easy task. The government of Rwanda "solicited" (for appearance sake) the collective wisdom of the international community in searching for solutions. In December 1995, the Rwandan government, with the financial assistance of the United States Agency for International Development (USAID), sponsored an International Conference on Genocide. Participants at the conference were scholars, experts on the law of impunity and the holocaust, Nazi hunters, physicians, survivors of the genocide, members from the Rwandan political parties, human rights activists and non-governmental organizations. The purpose was for Rwanda to engage the international community in a "genuine search for a viable and coherent solution. . . ."20
Discussions were held on:
causes, roles and responsibilities for the genocide in Rwanda;
social, political and economic consequences of the genocide;
how to address the problems of the survivors of genocide;
how to bring the perpetrators of genocide before justice using both classical judicial systems and alternatives; and
roles and responsibilities of the international community in addressing the post-genocide situation.21
The conference focused on how to achieve "justice" in light of the vast number of genocide perpetrators given the politically -- and indeed morally -- unacceptable consequences of applying existing Rwandan law which mandates the death penalty for murder. Recognizing the differences in culpability between those who orchestrated and mobilized the masses versus the unsophisticated farmers who were duped, forced or incited into killing, the conference developed a multi-tiered classification approach regarding culpability and sanctions.
In response to the discussions and recommendations of the conference, legislation was proposed, debated and adopted on August 9,1996. The new genocide law classifies offenses into four categories, and provides for reduction of penalties for all except those in category I. The death penalty is automatically imposed without exception to those in category I, which includes: the planners and organizers of all levels; those who committed sexual torture, irrespective of whether it resulted in death, and anyone who seemed to be leading/enjoying mass killings (as opposed to those who just went along and killed).Unfortunately, the statute is vague. There are no elements to the crimes. No defenses exist and there is a total absence of any fundamental protections and guarantees for the accused -- including the right of legal representation.
Fate Of The Damned
You will never find anyone in Rwanda to defend those peoples. . . . What worries me even more is what will happen the first time a magistrate finds someone not guilty.
Alphonse Marie Nkubito 22
Former Minister of Justice
Prior to the genocide, the RPF and the Rwandan government entered into a Peace Agreement known as the Arusha Accords. Focusing on multi-party democratization and the Rule of Law, the parties set out the principles and methods in achieving these goals in the "Fundamental Law," comprised of the Constitution of 10 June 1991 as amended, the Arusha Accords and six Annexed Protocol Agreements. Through the Fundamental Law, Rwanda agreed to comply with several international and regional human rights instruments that promote human rights within the judicial system.23 The current government, in spite of the war, recognizes the legitimacy of the Arusha Peace Accord in principle. The pre-genocide Fundamental Law remains the framework for the democratization and application of the Rule of Law for Rwanda.
Binding the government to the international human rights instruments at the enforcement level is an agreement reached with the United Nations Human Rights Field Operation in Rwanda (HRFOR). Among its various functions, HRFOR has a mandate from the Rwandan government:
To carry out investigations into violations of human rights and humanitarian law including possible acts of
genocide. . . ."24 and
To implement programs of technical co-operation in the field of human rights, particularly in the area of the administration of justice.25
This agreement was meant to foster extensive cooperation between HRFOR and the Rwandan government. Any legislation drafted by the parliamentary committees is supposed to be circulated to HRFOR and other NGO for non-binding comments and suggestions before being introduced to the plenary for debate. Human rights monitors with no enforcement abilities are scattered around the country, investigating current and past abuses. Though detailed monthly reports are made with the data collected in the field, documenting ongoing human rights abuses by extremists on both sides, the government (army)is literally getting away with murder.
As for dealing with the continuing arbitrary arrests, the lack of adequate files for most of the prisoners and the government's failure to address the issue of providing defense counsel for the accused, precious little evidence is available to suggest that HRFOR has the clout, resources, or willingness to force Rwanda into compliance with its obligations. Though acknowledging that some sort of a Legal AID Agency is necessary to defend the accused, Simon Munzu, coordinator of HRFOR's Justice, Legal Reform and Institutional Building program acknowledges that it is neither in HRFOR's mandate nor do they have the resources to establish such an institution. The extent to which HRFOR has thus far addressed this issue has been limited to working with a group of concerned lawyers in order to draft a proposal for an internationally financed legal assistance foundation that the government would create through legislation.
As an alternative, it has been suggested that foreign lawyers represent the accused. In fact, the Belgium Non-governmental Organization (NGO) Avocat Sans Frontieres was in Kigali in late July 1996 looking for $3 million to start a defense initiative. While commendable, this initiative is unrealistic, unsafe and a bit neo-colonialist. Unless you have government/military protection, it is very unsafe to be in the prefectures defending anyone accused of genocide. Also, it is highly unlikely that the government will allow this foreign intervention, particularly because the judges and prosecutors will have had only three to four months training compared to the legal training of the western lawyers. And finally it would be the ultimate of ironies for this Tutsi-dominated government to allow their former colonizers who with their racist theories are responsible for having driven the wedge between the Tutsi and Hutu, and who supported the Hutu through the genocide, to come to Rwanda to defend the Hutu in prison.26 Defending anyone accused of genocide, even if there is no evidence to suggest involvement let alone guilt, is perceived as defending the genocide.
Another option being suggested is to select and train suitably qualified accused persons to enable them to represent themselves and their fellow defendants. While this might be the most palatable option for the government, assuming it is logistically possible to recruit and train defendants, at the end of the day you will have neither justice nor the perception of justice -- two indispensable results needed to engender confidence in the judicial system and the application of the rule of law.
Given the present situation in Rwanda, it is impossible to have adequate trials in Rwanda without a concerted effort by the government to initiate a grassroots legal literacy program to educate the masses about: the function of the judiciary; the roles of judge, prosecutor, and lawyer; the civil /political rights enjoyed by the citizens; constitutional protections and the rule of law. Unless the Rwandans are informed of how the legal system works, unless the government promotes its recognition and approval of the right to defense counsel for all accused and its respect for the legal process, and unless the HRFOR with its mandates vigorously addresses this issue by creating a legal assistance institution, it will be impossible to recruit and train a sufficient number of willing Rwandans to meet the demand of providing legal representatives for the thousands of detainees.
All of this requires an intensive initiative by the government to address how it can change the instinctive behavior of the Rwandans toward each other. Only by changing "behavior" can you deal with changing "attitude." For this to occur however, the government must first change its attitude regarding the accused and their inherent human/constitutional rights.
Unfortunately, rather the being forward looking, the Rwandan government's pervasive attitude is that only by killing the top genocidaires, will the masses understand the gravity of their acts. One political pundit working at the American Embassy with close (perhaps too close) ties to the RPF, agrees:
The government just wants to keep the status quo for the time being until it figures out what to do -- maybe grant amnesty to most, but they must first execute a few hundred to get the message across. Who cares whether those executed are guilty or not, that is not important.
On January 3, 1997, after a two-day trial, two Hutu genocidaires were the first to be found guilty and sentenced to be executed for their role in organizing and participating in the massacres of their Tutsi neighbors. The accused, unable to find legal counsel, represented themselves.
International Tribunal: Friend Or Foe
. . . [W]e don't have to consult with the Rwandan government, we have primary jurisdiction.
ICTR -Registrar's Office
The ICTR was established by the UN Security Council Resolution 955 to prosecute persons responsible for genocide and other serious violations of international law committed in Rwanda and the neighboring states between January 1, and December 31, 1994. The unavailability of the death sentence at ICTR along with their right of primary jurisdiction has caused major problems between Rwanda and ICTR.
Lack of consultation and cooperation on either side seems to be the prevailing theme. Because the tribunal has "primary jurisdiction," countries, including Rwanda, with indicted perpetrators must honor the tribunal's request for extradition. To approach the issue of jurisdiction by invoking a legal argument may be correct, but to the Rwandans it seems all too clinical, especially when the ICTR does not have the death penalty.
International law does not console the victims; it does not quench the visceral thirst for retribution. Furthermore, international law does not assist in "rehabilitation," given the government's perceived cultural beliefs that reaffirmation of societal norms for the unsophisticated masses will only happen if the Hutu leaders whom they blindly obeyed during the killing frenzy, first sit in the dock of justice and thereafter hang.
It appears that the friction between the ICTR and the Rwandan government began with the creation of the International Tribunal. A senior legal advisor to the Tribunal put it this way:
They asked for an International Tribunal. They knew or certainly should have known by then because of the Tribunal for Yugoslavia, that the death penalty was out of the question. Besides, who is going to cooperate with Rwanda knowing that they don't have an acceptable judicial system in place.
A Rwandan diplomat quoted in the New Yorker magazine paints a different picture:
We asked (the U.N.) for help to catch these people who ran away, and to try them properly in our courts ... and the Security Council just started writing "Rwanda" in under the name "Yugoslavia" everywhere.27
Lost in this struggle for moral/legal authority as to who gets to prosecute the organizers of the genocide, is how to best achieve justice. Most of the witnesses and documented evidence are in Rwanda. All of the alleged orchestrators and leaders of the genocide are outside Rwanda. Some countries, such as Zaire, are unlikely to cooperate with the tribunal. Other countries have expressed a willingness and are indeed cooperating. Many of these same countries, however, are unwilling or reluctant to extradite alleged genocidaires to Rwanda, given the absence of an adequate judicial system, or for their own regional/political reasons.
It may be ironic and unjust to the Rwandans that the most guilty will receive a maximum sentence of life in a country-club prison while less culpable figure will hang. But, if apprehending, trying, convicting and punishing the perpetrators are the mutual goals, then the Rwandan government should be focusing on how to best assist the tribunal, which according to sources is inadequately funded and understaffed, and from what I have seen, plagued with mismanagement nepotism and ineptness.
Conversely, the tribunal should exercise some sensitivity and perhaps assist Rwanda by sharing its investigative results for the national trials, and providing technical assistance to ensure fair trials for the accused.
In trying to mend fences or succumbing to blackmail -- depending on whom you talk to -- the tribunal recently acquiesced to allow a major figure of the genocide to be tried by the national courts of Rwanda(and executed), rather than before the tribunal.28 By not invoking its "primary" jurisdiction, the tribunal may have lost the opportunity to have this alleged architect "flip," and perhaps help make cases where tangible proof is slim. More problematic however is the fact that, by having the prosecution office in Kigali, ICTR has compromised itself. No efforts are being made to pursue Tutsi RPF perpetrators of crimes against humanity. ICTR's apparent selective prosecution of Hutus seems to validate the arguments of the Hutu that ICTR is not objectively pursuing its mission.
The arrival of this alleged perpetrator in Kigali underscored how incapable the current Rwandan judicial system is in dealing with genocide cases. According to a Belgian journalist who was granted access to the prisoner, the Ministry of Justice was struggling with what procedure to follow. There had been no initial court appearance; the security issues were overwhelming, and there was no coherent plan of when, how and by whom this prisoner would be tried. Though the government believes that they are legally and morally entitled to try the top figures of the genocide, it is axiomatic that, doing so is impossible with a collapsed judicial system -- unless we are talking about a kangaroo process.
The tribunal, however, is certainly not a paragon of justice. Mismanagement, corruption, fraud, nepotism, political infighting and ineptness has prompted an internal inquiry by the U.N.
With adverse publicity highlighting ICTR's ineptness, prosecution legal advisor Alessandro Calderone, Ph. D., initially hired to do substantive work, has emerged as the Kigali spin doctor. His most notable tasks were:
Faxing back and forth to a restaurant potential fixed-priced menus for a first impressions dinner for Justice Arbour who was in Kigali to inspect the troops as the new Chief Prosecutor for ICTY and ICTR; and
Energetic involvement (along with other ICTR staff) in pursuing his theatrical interests in a fundraising production -- of all plays -- Hamlet.
Calderone, however, is not alone. One legal advisor pointed out that the predominant attitude at ICTR in Kigali is one of "malaise. . . . Lucky to get an hour or two out of anyone around here. The attitude is why rush, what's the hurry?" One need only go to the Mille Collin Hotel--poolside or bar, the American Club or the New Cadillac Disco -- after 2 AM please -- to see the ever-present tribunal staff drinking and dancing.
As for the prosecution trial team, it seems that incompetence is being turned into an art form. Senior Prosecutor, Jacob Haile-Mariam, an Ethiopian lawyer, proudly acknowledged to me that he has "some" trial experience -- though I later learned that he had been asking an American legal advisor for "some good tips on how to cross examine." During an interview I asked him about the rumor that there was little evidence to prove that "Colonel Apocalypse," Theonesta Bagorosa, currently in Cameroon awaiting extradition, is guilty of genocide. Snapping his finger, without hesitation, he proclaimed that he would "get a conviction like that." I later discussed this matter with several ICTR investigators, all of whom admitted that the evidence was slim, the investigation not complete, and the case extremely difficult. As for Haile-Mariam, they all expressed their dismay and disdain, characterizing him as incompetent, lazy and clueless.
Despite a 1996 budget of $36 million, prosecutors, investigators, and legal advisors privately complain that the tribunal was an unresponsive bureaucracy, that it is understaffed, and underfinanced. Underscoring this picture of utter chaos and lack of commitment is the case of twelve alleged genocidaires detained in Cameroon. During an interview Haile-Mariam suggested that the Tribunal was only interested in pursuing charges against four of the twelve. A senior investigator however indicated that all twelve were key figures and should be indicted, but inadequate funding and lack of resources was the real problem. However, both were clear on one thing: Cameroon was unlikely to extradite the other eight detainees to Rwanda. If this indeed is the expected situation, it begs the question: how committed is ICTR to dealing with the issue of impunity?
Luise Arbour, a Canadian judge who is the chief prosecutor for both the Rwandan and Ex-Yugoslavia Tribunal, acknowledged to Elizabeth Neuffer of the Boston Globe: "Everything is not fine. We have an audit, we are short-staffed, not everything is working the way it should be, and there is no point in trying to pretend otherwise."29
One can not help but question, why then is the highly paid avocat Caldrone, Ph.D being utilized as a public relations agent, occupying his time with such matters as menu designing and theatrical performance.
Defending Before ICTR
I am not here to defend criminals, I am here for the truth.
Luc de Temmerman
ICTR 1-25-96
Article 20 of ICTR statute sets out the rights of the accused. These rights, which are found in various international instruments, are fundamental and universally accepted, such as:
All persons shall be equal before the tribunal; the presumption of innocence; the right to assigned legal assistance; the right to confront witnesses; and the right to present witnesses "under the same conditions as witnesses against him."
According to the Directive of Assignment of Defense Counsel, assigned counsel are entitled to costs and expenses of legal representation, which includes costs relating to investigative and procedure steps, measures taken for the production of evidence to assist or support the defense as well as expenses for ascertainment of facts, consultancy, expert opinion, and transportation. These resources are supposed to place the defense at equal footing, "equality of arms," with the prosecution.
According to ICT President, Antonio Casses, the Directive of Assignment of Defense Counsel was "inspired" by provisions in force in the Inter-American and European Human Rights System. With such protections and high minded principles, the accused before ICTR should enjoy due process. Unfortunately, such is not the case.
While accused before ICTY for Ex-Yugoslavia are being assigned as many as four attorneys with full time investigators, travel resources and costs, the tribunal for Rwanda refuses to allow more that one paid assigned counsel, refuses to pay for time and research costs for motion practice, is reluctant to pay for investigation costs. Moreover, defense counsel are being given only three to four months to prepare for trial while the prosecution has twelve to eighteen months to prepare with four to five prosecutors and several legal advisors per a case, professional investigators, support staff, and an armada of Jeeps, a private plane, expense accounts, a fully equal office with computers, faxes copy machine, etc.. So much for "equality of arms."
The primary cause of this insensitivity to the rights of the accused is the abundance of power vested in the Registrar Office. It is responsible for assisting the judges, running the tribunal, delivering indictments and securing the extradition of the accused, for the protection of witnesses for both sides, assignment of defense counsel and determination of funds to be allocated for the defense, coordinating between the prosecution and the defense and managing the detention facility -- currently being built with free prison labor from the local Tanzanian prison.
Aside from the numerous conflicts of interests, the main culprit in denying the accused their human rights is the Registrar Andronico Adede, a UN bureaucrat with no trial or court experience. By all accounts Adede is ignorant, oblivious and unconcerned for the rights of the accused. He simply does not understand or appreciate the need to allocate sufficient resources to defense counsel to permit an adequate defense. Moreover, due to his micro-management style, nothing gets done in his absence (estimated nearly half his time due to his self-imposed travel schedule), which as some from within point out, is motivated by the small fortune of per diem he pockets.
The trial judges are not much more competent. While the Tribunal has adopted an adversarial system, most of the judges, including the President of ICTR, come from the civil code-accusatorial system. These judges are unable or unwilling to appreciate the vast differences in the two legal traditions, particularly with respect of the role of the defense attorney.
In briefly representing Jean Paul Akayesu on charges of genocide, extermination and torture, I was reluctantly given ten weeks to prepare. During my initial appearance I informed the President that I needed a minimum of six months to prepare in order to review the file (much of which had not been discovered), to conduct a pre-trial investigation, file motions and to prepare a trial notebook. The President was unmoved. His response was that I could prepare my case while the prosecutors were presenting their evidence. I did not need to investigate since I could only "cross- examine" in court, at which time I could learn all I need to know. Trying to explain the difference between investigation and cross- examination fell on deaf ears -- the president was obviously clueless.
I filed several motions and requested evidentiary hearings, only to receive a letter from the Registrar informing me that the president had "entrusted" him with the task of informing me that my motions were meritless, undeserving of a hearing. Aside from challenging jurisdiction, I had motioned for the Tribunal to articulate the elements of the crimes(non-existent under the Statute) and the rules of evidence or standards the multi-national/diverse panel of august jurists intended to rely on in making findings of facts and conclusions of law.
If this were not enough, one must also contend with Luc de Temmerman, a Flemish commercial lawyer with very close ties to Hutu extremist organizations. Mr. de Temmerman represented the former Rwandan President and his family clan, the "acasu," which some credit as the organizers of the genocide.
Upon my formal appointment in the Akayesu case, de Temmerman cautioned me that I was not representing Akayesu, but "the Hutu nation" and "the cause." I was instructed that a genocide had not occurred, that it was simply Tutsi propaganda; but if a genocide had taken place, the Tutsis were responsible for exterminating the Hutu -- something that could be proved by exhuming the mass graves. According to de Temmerman all I needed to do was compare the body size and facial characteristics of the dead. When I refused to cooperate, he openly accused me of being an agent of the Rwandan government, a Tutsi spy who was sabotaging Akayesu's case, and of course "the cause." It came as no surprise that two weeks later I would be accused by my own client of having "brainwashed," "intimidated," and "manipulated" him into selecting me as his primary trial attorney (Akayesu had fired his previous counsel, a Flemish commercial lawyer, who for several months had done no preparation at all and refused to appear before the tribunal at the scheduled trial date).
January 9, 1997, Akayesu with his newly appointed attorney of seven weeks proceeded to trial. The tribunal did agree to allow the defense some time to prepare, but only after the prosecution presented its case. During the trial Akayesu was conducting the cross examination since his attorney is from the civil code tradition, with no experience in pretrial investigation or cross examination.
Conclusion
I don't want to lie . . . I expect vengeance. I want revenge. I'm hurting so much inside. And do you think it is going to stop because we are safe now? So much death, so much grief, so many families wiped out, and we are to forget about it. The fire is out, at least here in Kabuga, but not the fear. And what about the fire inside?
Genocide survivor 30
What is acceptable, moral, just? Bringing human rights violators to justice is the quintessential form of ending the culture of impunity that has existed in Rwanda for over thirty years. The quest for justice for yesterday's victims of atrocities must be pursued but in a manner so as to avoid, to the extent possible, replacing one set of human rights violations with another. This quest is only possible if, with precise identification of individual guilt based on documented evidence and fair trials, collective responsibility is replaced.
When reading about how nuns doused their parishioners with gasoline for cremation, or when Hutu grandparents killed their half-Tutsi grandchildren, or when doctors and nurses killed their colleagues and patients, it is easy to understand the desire, indeed instinct, of the survivors to seek the maximum revenge. Conversely, when visiting the prisons and seeing the deplorable conditions, when learning of arbitrary arrests or of the government's apparent indifference in providing adequate protection to the accused, or of extra-judicial killings,31 it is equally as easy to understand the anxiety and impatience of the international funders with what they perceive to be the government's unwillingness or inability to rectify on-going human rights violations.
After genocide, defining is justice will determine whether justice is possible. Pursuing a course of "objective" justice may assuage vengeance, but the attendant consequences are more likely to polarize rather than heal the Rwandan society. In its quest for justice Rwanda must focus on how best to reconstruct, rehabilitate, and reconciliate its ethnically divided society.
The survivors and living victims deserve justice, just as the innocent dead deserve the truth. These two goals can best be achieved through a multifaceted approach in dealing with impunity.
Yes, trials -- proper trials -- are necessary. However, all Rwandans would best be served if the International Tribunal handled all the cases that fit under category I of the Rwandan genocide statute. By conceding, the Rwandan government would take a giant leap in establishing its credibility in recognizing the rule of law. The Rwandan government should force the international community to live up to its obligations. The tribunal for Yugoslavia intends to prosecute everyone involved. Rwanda would only be asking the Tribunal to expand its mandate to prosecute all the alleged key organizers, sexual torturers, and mass killers. Anything less would appear and be, racially un-equal -- a different justice question for the European-white victim vis-á-vis the African-black -- an issue that is likely to be raised in any event given that thus far the Yugoslavia tribunal seems better financed and staffed than the Rwandan tribunal.
In addition to trials, Rwanda must institute structural reforms, erect museums and monuments memorializing the inhumanities of the "final solutions," form a truth/genocide commission for a systematic accounting of the events, create a national human rights watch agency to monitor complaints and assist HRFOR in accomplishing its mandate, legislate a legal aid institute to provide effective legal assistance to the accused, and establish a legal awareness educational program at the grassroots level that would focus on changing behavior through empowerment with legal knowledge -- use the legal process, not the machete. This multifaceted approach to justice allows for accountability without retribution and rehabilitation through awareness.
In spite of its shortcomings, the International Criminal Tribunal is the only functioning legal institution that is capable of securing, prosecuting and punishing many of the responsible architects and leaders of the genocide who have sought sanctuary outside Rwanda. Hence, it behooves the Rwandan government to cooperate and assist the tribunal. With sufficient funding from the international community, major administrative housecleaning and a commitment to providing adequate funding and resources to defense lawyers, the tribunal "may" achieve justice (albeit limited) as well as the perception of justice -- an indispensable prerequisite if the results of the trials are to be instructive, meaningful, and just.
However, for this to occur, the tribunal must resolve the inherent conflicts of interest, must commit itself to learning and appreciating the nuances of the adversarial system, must provide all accused with adequate time and resources for a competent defense and must conduct fair trials. The tribunal must realize that the results of the trials will be meaningless if the process is unfair.
Lastly, what should not be overlooked in the quest for justice, both at the national and international level, is to what extent the U.N. and several signatories to the 1948 Convention on Genocide are morally, if not legally, guilty for failing to stop the genocide as they were required to do under international law. Truth and justice demand that yesteryear's passive observers of the genocide who are the humanitarian moralists of today account for their behavior. An International Truth Commission should be created to determine whether the International Court of Justice should impose civil sanctions against any signatory which passively watched the genocide run its course. Establishing liability with direct compensation to the survivors would be the first step in reaffirming to all, not just Rwandans, that we live in a global society where we are our brother's and sister's keeper with moral and legal obligations.
NOTES
1. Gerard Prunier, The Rwanda Crisis: History of a Genocide (Columbia University Press, 1995) p.3432. Rwanda U.N. Situation Report (May, 1996) p.19
3. Id. at p.5
4. Figure estimated by Rwandan Genocide Commission; provided by a Belgium national who worked with the Commission and was responsible for visiting sites, exhuming mass graves and conducting a body count.
5. Speaking in Geneva at the Round Table Conference on Rwanda, American Envoy Richard McCall summed up the past and current situation gravely: "Just as the International Community failed to act to prevent the Rwandan genocide, the International Community stands silent as the genocidal forces continues to work their will both inside Rwanda and in neighboring Zaire." Death Never Left Kigali - Says Mc Call. The New Times, Kigali, (July 1996) p.10
6. Recommendations Of The Conference Held In Kigali From November 1st To 5th On: Genocide, Impunity And Accountability: Dialogue For A National And International Response. p.6.
7. Rwanda: Not so Innocent, Africa Rights, (August 1995) p. 90
8. Gerard Prunier, The Rwanda Crisis op.cit., p.168
9. Philip Gourevich, Letter from Rwanda: After the Genocide, New Yorker (December 18, 1995) p.84
10. For an objective and well informed account of how the killings took place. See U.N.Special Rapporteur René Degni--Segui's 29 January 1996 Report on the Situation of Human rights in Rwanda. E/CN.4/1996/68 For a comprehensive, detailed account as told by genocide survivor, see Rwanda: Death, Despair and Defiance, Second edition Africa Rights, August 1995.
11. Gourevitch, Letter from Rwanda op.cit., p.91-92
12. For a cogent analysis on the RPF See: Cyrus Reed, Exile, Reform and the Rise of the Patriotic Front, Journal of Modern African Studies Vol, 34 no. 3 (September, 1996).
13. Philip Gorevitch, Rwandans Despair of Justice for the Leaders of the Genocide, The International Herald Tribune op ed. June 28, 1996.
14. Gourevitch, Letter to Rwanda op.cit. at p.90
15. Draft Report of the U.N. Secretary General on Situation in Rwanda January to June 1996 paragraph 17.
16. Working paper on Round Table Conference 1996: Justice and Security of Persons and Goods, p.14.
17. Id. at page 15
18. Account given from extensive interviews with judges, members of parliament, lawyers, human rights activists and monitors. One Parliamentarian summized that the government would be lucky to have sufficient evidence to convict 2000 out of 75,000 plus detainees.
19. Rwanda: U.N. Situation Report May 1996, p.5
20. Remarks by Pasteur Bizimungu, President of the Republic of Rwanda. Recommendations of the conference held in Kigali from November 1st to 5th on: Genocide, Impunity and Accountability op. cit. p.3
21. Id. at p.16
22. Interview with Alphonse Marie Nkubito July 15, 1996. Nkubito was the Chief Prosecutor and an outspoken human rights activist during the Habyarimana regime. After the genocide he briefly served as Minister of Justice, before he was ousted for repeatedly denouncing Government abuses, insisting on a full measure of due process for the Hutu detainees and for sharply objecting during a cabinet meeting to government sanctioned killings.
23. Rwanda is a signatory to the following international instruments: The Universal Declaration of Human Rights (1948); the Convention on the Prevention and Punishment of the Crime of Genocide (1948); the International Covenant on Civil and Political Rights (1966); the Convention on the Non-Applicability of Statutory Limitation to War Crimes and Crimes against Humanity (1968); the African Charter on Human and Peoples' Rights (1981) and the Convention on the Rights of the Child (1989)
24. Agreement between the United Nations and the Government of Rwanda on the Status of the Human Rights Mission in Rwanda, par. V.5 (a).
25. Id. at par. V.5 (d).
26. The European colonizers gave preferential treatment to the Tutsi class believing and advocating that the Tutsi was superior to the Hutu. When the Tutsi began to express their desire for Independence in the early 1950s, Belgium switched its support to the Hutu. This resulted in the first Tutsi massacre on a massive scale in 1959 on the eve of Independence. For an analysis on the racial colonialist theories concerning Rwanda, See Iris Berger, Religion and Resistance, East African kingdoms on the precolonialist period, Butare: Institute National de Recherche Scientifique, 1981.
27. Gourevitch, Letter from Rwanda op.cit.
28. Froduald Karamira, the second Vice-President of MDR Hutu Party and one of the founders of Hutu Power -- an extremist group being credited with authoring the genocide.
29. Boston Globe, December 12, 1996.
30. Rights, Rwanda: Death Despair and Defiance, op. cit., p.735.
31. The worst incident was reported in late April 1995 in Kibeho when RPA soldiers, in response to an attack responded by firing into an unarmed fleeing crowd, resulting in an estimated death count of over 2000.