The International Criminal Tribunal for Rwanda (ICTR) must in theory close its doors on December 31. On November 8, it celebrated twenty years of existence. While the Tribunal’s contribution to fighting impunity is clear, observers point to remaining grey areas of its legacy. These include the failure to prosecute alleged crimes by one of the parties to the 1994 conflict in Rwanda; lack of any mechanism for victim reparations; acquitted persons with nowhere to go; and nine top suspects still on the run.
The ICTR was set up under UN Security Council Resolution 955, which gave it a mandate to hunt down and bring to justice those most responsible for “genocide and other serious violations of international humanitarian law committed in the territory of Rwanda, and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994.”
Twenty years on, observers agree on one point: most, if not all the individuals tried by the ICTR would still be free if the international community had not created this Tribunal, based in Arusha, northern Tanzania.
Since its first trial started in 1997, the ICTR has convicted 60 people (of whom seven are still on appeal) and acquitted 14 others accused of having played a leading role in the anti-Tutsi genocide. One witness and one investigator have also been tried and sentenced for contempt of court. Those convicted include former Prime Minister Jean-Kambanda and other members of his government, army generals, businessmen, clergy and members of the media.
But some analysts, like French sociologist André Guichaoua who has testified as an expert in several ICTR trials, think the Tribunal has not fully implemented its mandate. “Choosing to focus on prosecuting and trying the authors of the genocide was justified in the conditions that were those of the ICTR when it was set up, as well as a duty towards the victims and survivors,” he said in a recent interview with Hirondelle News. “But the fact that successive Prosecutors subsequently bowed – with the blessing of the UN Security Council – to the refusal of the military men in power (in Kigali) to have the whole of the Court’s mandate carried out has weakened its credibility and the scope of its judgments, truth telling and most certainly the appeasing of passions and controversies between parties to the conflict,” he said. “So the task given to the ICTR has not been completed,” added Guichaoua, in reference to crimes allegedly perpetrated by members of the RPA, former armed wing of the ex-rebel Rwandan Patriotic Front (RPF) now in power in Kigali.
Current ICTR Prosecutor Hassan Bubacar Jallow refutes this allegation. At a press conference on November 5 at the Tribunal headquarters, the Gambian lawyer said his team had “never been prevented from investigating” allegations against the RPF. Jallow thus rejected claims that some Western powers, notably the United States, have blocked the “special investigations” started by Swiss former Prosecutor Carla del Ponte, who was Jallow’s predecessor. “We have conducted investigations and concluded that there was a case, the case concerning the killing of (Catholic) bishops” in June 1994 in Kabgayi, central Rwanda, Jallow said.
“Mandate not fulfilled”
Among the 13 clergy killed – almost all Hutus – were three bishops. The case was entrusted to Rwanda by the ICTR Prosecutor. In October 2008, following a trial, a Rwandan court acquitted General Wilson Gumisiriza and Major Wilson Ukwishaka and sentenced the two other co-accused, both of lesser rank, to five years in prison.
But Human Rights Watch (HRW), which says it helped Jallow’s team in this investigation, does not think justice has been done. “The case was not vigorously prosecuted and did not pursue the evidence suggesting a planned military operation ordered by more senior level commanders,” HRW Executive Director Kenneth Roth said in a letter to Jallow on August 14, 2009. “The prosecutor did not pursue more senior commanders who had been involved in the military operation and against whom evidence exists.”
“We continue to believe that your mandate as Chief Prosecutor at the ICTR will not be fulfilled until you pursue all senior commanders responsible for atrocities committed in Rwanda in 1994,” Roth also said in the letter to Jallow.
For genocide survivors, their main criticism of the Tribunal is the absence in its governing texts of any mechanism to provide reparations for victims. This is a criticism not so much of the ICTR itself but of the UN Security Council which set it up. “The ICTR still lacks this important component of reconciliation because it doesn’t have a fund to compensate victims,” said Naphtal Ahishakiye, Secretary General of the main survivors’ organization Ibuka (meaning “Remember” in the Rwandan language), on November 8.
Ibuka President Jean-Pierre Dusingizemungu launched the same appeal on April 10 this year as he was attending a genocide remembrance ceremony at the ICTR’s headquarters. “As we commemorate the 20th anniversary of the genocide, reparations are at the heart of what Ibuka is asking for,” he said. “And we think this is the moment for the (Rwandan) government and the international community to redouble their efforts to put in place a reparation mechanism for victims.”
Whereas the ICTR Statutes do not provide for any reparation or participation mechanism for victims, those of the International Criminal Court (ICC) do. At the ICC, victims have a right to present their observations and question witnesses through their representatives. At the end of a trial, they can ask for reparations for harm suffered. The Rome Statute which founded the ICC also set up a Trust Fund for Victims, which is independent of the Court. “Our recommendation now is that an international Fund be set up for victims,” the Ibuka president concluded.
Three “big fish” still on the run
The Collective of survivors’ associations is also calling for the international community to continue hunting for the nine ICTR accused still on the run so that “the closure of the ICTR does not signal the end of justice”. Six of those still at large have had their cases transferred to Rwanda, which now has the first responsibility to track them down. The three others, including rich businessman Félicien Kabuga said to be the financier of the genocide, will be tried if they are caught by the residual Mechanism for International Criminal Tribunals (MICT). In a press statement on November 8, as the ICTR was celebrating its 20th anniversary, the Security Council called on all member states to “cooperate with the ICTR, the Residual Mechanism, and the Government of Rwanda in the arrests and prosecutions of the remaining nine indicted fugitives”. ICTR Prosecutor Jallow made the same call from Arusha. “The nine fugitives who remain at large (…) need to be arrested and brought to justice,” he said. “This can be done only through the active collaboration of all states to secure the arrest and transfer of these fugitives for trial.”
Billionnaire Félicien Kabuga, accused notably of having ordered the machetes used to kill Tutsis, is believed by the ICTR to be hiding in Kenya, only six hours by road from the seat of the Tribunal in Arusha. The second “big fish”, former Defence Minister Augustin Bizimana, is said to be in eastern Democratic Republic of Congo (DRC). The third is former presidential guard commander Protais Mpiranya. He was in charge of the élite protection unit of ex-president Juvénal Habyarimana, which was active in the massacres. Mpiranya, who was a commanding member of the FDLR Rwandan Hutu rebels in the eastern DRC, is being protected, according to the ICTR, by senior Zimbabwean officials. However, some Rwandan sources say Bizimana and Mpiranya have died of natural causes. ICTR Prosecutor Jallow contests this.
On another issue, the ICTR recognizes it has had enormous difficulty finding host countries for the people it has acquitted, and for convicted persons who have served their sentences. Of the 14 acquitted so far, only six have found host countries while the others are still in an ICTR “safe house” in Arusha, along with three people who have served their sentences. “I humbly call on all governments present to see how they can assume this international responsibility and agree to host persons acquitted or freed by the ICTR after serving their sentence,” said ICTR Tanzanian Deputy President Mohammed Gharib Bilal at the November 8 ceremony. According to the agreement between Tanzania and the UN, people who have been definitively tried by the ICTR must leave Tanzanian territory.
The fact that acquitted persons cannot leave Tanzania represents a “failure” for the ICTR and a “big human rights challenge”, according to ICTR Registrar Bongani Majola.