Image: Ermes Beltrami Vincenzi
Twenty years after the genocide against the Tutsi in Rwanda, it can seem that the momentum behind international justice is at last increasing towards lift-off. In London, five suspects are back in court, facing a renewed attempt to extradite them to Kigali, Rwanda's capital; in France and Germany, the first trials have delivered guilty verdicts against high-profile genocide suspects; in Kigali itself, the trials of two men transferred from the International Criminal Tribunal for Rwanda (ICTR) in Arusha are underway, while the ICTR continues to issue appeal-judgements as it seeks to conclude its often troubled mission.
This appearance of progress, however, belies a much more troubling reality. There is a growing question over whether international justice can ever live up to its much-heralded mandate to end impunity. Such apparent current action by the international community only casts further doubt over political interference, as the argument gains currency that international justice is but a convenient tool promoted by western leaders to suit their own agendas. So now, with the twentieth commemoration of the genocide nearing on 7 April 2014, previously apathetic and even hostile states are suddenly rushing to gain credit from putting alleged genocide perpetrators in the dock. It is an argument used by the defence at the recent high-profile trial in Paris and it has some element of truth in it.
Several factors have ensured that the international community has poorly served justice for genocide survivors. They include a real lack of political will; a damaging political interference in judicial matters; complex and highly subjective legal interpretations; financial restraints and occasional moral considerations. Moreover, these too often pull in differing directions. Survivor groups such as IBUKA have consistently asked how states that agreed to "prevent and punish" genocide and related acts in the genocide convention of 1948 have seemingly shelved their obligations. To take but one example related to the Rwanda genocide of 1994: how can Europe and the west still be home to hundreds of alleged genocide suspects, when the principle of universal jurisdiction allows punishment of certain horrendous crimes beyond the country where these took place?
The ICTR allegations
The most evident immediate failures of international justice are threefold. First, the ICTR has foundered. It was set up in late 1994 following a wave of guilt (mostly American) at the global failure to halt the genocide, but has been plagued by a host of less than flattering allegations throughout its life: of financial mismanagement, political interference, indifference to witnesses, and evident failures by the prosecution to provide coherent indictments and trial strategy, to name but a few. In addition, several of its appeal-bench rulings since 2008, which have overturned hefty trial sentences to acquit the accused, have caused intense controversy.
In a growing number of cases, critics accuse the Office of the Prosecutor (OTP) of failing to complete basic tasks such as getting together a legally-tight indictment. So, the recent Ndindiliyimana/military II judgment was yet another setback for the OTP; it was found to have made fundamental mistakes with the indictment and legal procedure, which allowed the defence to demolish what should have been airtight cases. How, survivors and UN taxpayers are entitled to ask, after tens of millions of dollars spent by the OTP, can such fundamental errors be made, time and time again?
The Meron enigma
Second, a particular judge wields a powerful mandate which he has delivered in an extraordinary manner that critics allege casts doubts not just on particular judgments but also on the very authenticity of the courts and their proceedures. This is Theodore Meron, the president of the appeal chamber, and residual mechanism (MICT) charged with the all-important legacy of the ICTR and also of the International Court for the former Yugoslavia (ICTY) in The Hague. Meron's reports to the United Nations Security Council continue to promote the work of the two courts and the role of international justice. However, critics argue that this 83 year-old legal academic is responsible for diminishing the legacy he speaks so eloquently about - and indeed, for assisting the promotion of impunity.
A growing number of leading military and political leaders, found guilty at original trials in The Hague and Arusha, have walked free after Meron’s appeal bench has overturned (often on a split vote) the initial verdicts. The result has been a real sense of confusion within the courts and among survivors who have made long and frequently dangerous journeys (from Serbia, Croatia, Bosnia and Rwanda) to give evidence.
At the ICTY, Meron has presided over an appeal bench that dismissed long trial sentences against two senior Croatian generals (a split three-two decision) and the Serbian commander Momčilo Perišić.These judgments were used as precedents to later free two Serbian secret-police chiefs accused of war crimes. In his dissenting opinion, after another split decision in this latter case, Judge Michèle Picard noted: "If we cannot find that the Accused aided and abetted those crimes, I would say we have come to a dark place in international law indeed." She condemned the Perišić precedent-setting interpretation of aiding and abetting as "overly restrictive" - raising the bar for proof so high that a guilty verdict was virtually unobtainable.
In January 2014, the ICTY's appeal chamber released an 800-page judgment that affirmed guilty verdicts (albeit with reduced sentences) on Serbian commanders for crimes in Kosovo. But in doing so they decided that the appeal-judgement in 2013 leading to Perišić's release was in error. It explained that "under customary international law, the actus reus of aiding and abetting consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.” In effect, the two appeal chambers are now in disagreement over legal interpretation. As a result of this decision, the ICTY prosecutor took the quite extraordinary step in February 2014 of appealing Meron’s appeal-chamber decision that acquitted Perišić, for it claimed that the bench had "erred" in its interpretation of aiding and abetting.
As the judges at the ICTY descended into an undignified and bewildering internal wrangle over legal interpretation, the prosecution team at the ICTR was sitting in shock as Meron’s appeal-bench overturned three more trial verdicts in February 2014. Members of the OTP later expressed despair that, given the way cases were now being decided by the appeal-judges, the dozen or so remaining appellants at the ICTR could all reasonably expect to be freed. First among them could well be General Augustin Bizimungu, head of the Rwandan military during the genocide, and originally sentenced at his trial to serve thirty years for genocide.
As damaging as the legal wrangling and case decisions have been, a greater controversy brewed in 2013 as a fellow appeal-bench judge questioned Meron’s impartiality. A leaked email from the Danish judge, Frederik Harhoff, in May 2013 accused Meron of following an American/Israeli agenda that meant decisions were "watered down" when they impinged on the highly debatable legal interpretation around "command responsibility" - thus precluding any future legal action against United States or Israeli senior officers or politicians as a result of military action in, say, Afghanistan or Gaza. Harhoff argued that Meron’s interpretation made it almost impossible for any political or military leader to ever be held accountable unless they were at the crime scene giving the orders as the butchery took place. Harhoff was subsequently thrown off from the ICTY appeal-bench case he was serving on (involving the Serb, Vojislav Seselj), ironically also in a split (two-one) decision.
Meron’s supporters are vocal in his defence. They note he is just interpreting existing international laws - and if states want their leaders to be answerable for serious crimes, it is these legal devices that need to be tightened. Eric Gordy, an expert on the tribunal, says: "People in international law are divided...over how much oversight international law ought to have over military activity." Whatever the rights or wrongs of Meron’s interpretation and his motivation, the end result is clear - bringing further confusion, controversy and disrepute to the international judicial system. The guilt or innocence of the accused has seemingly become of secondary importance to legal interpretation and realpolitik.
The rash of acquittals by the ICTR appeal-chamber have created a new, unexpected problem. The former detainees cannot find countries willing to grant them visas, which they seek especially from Belgium and France, where most have families. so they are now living, at further UN expense, in "safe houses" in Arusha. When the ICTR was set up, it was expected that due process would mean such individuals would be sent to prison for a substantial period. The decisions of Meron’s appeal-bench are responsible for a situation where these former detainees are in limbo, and the UN and MICT seem uninterested or unable to resolve it.
The ICTR has found these politicians and military personnel to be "not guilty" of specific charges against them, or has released them after shortened sentences; but western nations clearly do not consider them to be innocent and want nothing to do with them. The ICTR has no power to force states to take such individuals, so they are marooned in Arusha: free but unwanted. An international court has given its verdict on them, though western states seem to have made up their own mind. All of which continues to undermine the ICTR.
The state dimension
Third, efforts by individual states to bring belated justice to those accused of the genocide have also run into difficulties. The stalling of two prominent cases the ICTR transferred back to France in 2007, for example, is an area of grave concern. A priest, Wenceslas Munyeshyaka, and a former prefect, Laurent Bucyibaruta have been "under investigation" since they arrived in France shortly after the genocide. They were subject to a long wrangle between the ICTR and France over where they should stand trial, with the former accusing Paris of delay in processing the cases.
In 2007 it was agreed that France would indeed prosecute the cases, so the ICTR handed over the completed files. Since then nothing has happened. But the ICTR took a political decision not to recall the suspects to stand trial in Arusha, which would have brought it into conflict with France. The result is a clear breach of international justice, with two men accused of the gravest crimes being allowed to continue living in impunity before the law. These cases have enormously harmed the standing of the ICTR and France.
In another case, the UK's crown prosecution service, acting for the Rwandan government, is seeking to get a positive verdict to extradite five suspects (including a doctor and three former mayors) accused of genocide. Such cases - and there are many in the pipeline - throw up a host of issues. They include the political and financial will for the cases to go ahead, when each trial or hearing can last months or years and be very costly; this requires politicians to explain why huge sums need to be spent on proceedings for foreign nationals accused of crimes committed in far-off lands.
The recent proceedings in London, Paris and Frankfurt also show the inherent practical difficulties of putting on such complex extradition hearings or trials. Witnesses, many needing protection or added security, need to be flown in or to give evidence by video-link. Both prosecution and defence lawyers must travel to the crime scene to carry out their own investigations. "Expert" witnesses use the dock as a means to express their own political views of the current situation in the country or to engage in genocide denial, rather than offer assistance to judges and juries. Court staff struggle over locating crime scenes on maps and argue about specific customs and cultural norms alien to western life. The experience of seeing court officials in London trying to understand complex Kinyarwandan phrases, and arguing over travel-routes gives the proceedings a somewhat surreal atmosphere.
The trial of former intelligence director Pascal Simbikangwa in Paris in early 2014 caused a degree of media interest, at least in France. However, the interest was less to do with the man in the dock than the remarkable fact that - close to the twentieth commemoration of the genocide - this was the very first trial to take place in France. It is hardly surprising that France has become the preferred home to dozens, if not hundreds, of suspected genocidaire.
In late February 2014, in the middle of the six-week Simbikangwa case, the French court of cassation refused to extradite three Rwandan suspects. The grounds for their ruling were not that the suspects would not get a fair trial (the UN, the European Court of Human Rights and other western countries now recognise the capability of a transformed Rwandan judicial system). Instead, the court used a technicality: since Rwanda did not have the crime of genocide on its statute books in 1994, these suspects could not be sent back to face a crime that did not exist when they allegedly committed it. Survivors are left clinging to the hope that if, for political reasons, France refuses to extradite suspects to Rwanda, it will be prepared to host and fund prosecutions of those on its territory who may have sought to escape justice over crimes committed elsewhere.
International justice has reached a crossroads. At present it too finds itself in the dock as much as those high ranking alleged genocidal masterminds and assorted killers it asserts it has the mandate, will and legal wherewithal to try. The controversies caused by Meron and his appeal-bench, by palpable prosecution failings and legal disagreements have undercut confidence that justice is being done - and seen to be done.
As member-states of the UN Security Council have become involved in global conflicts during the past two decades, they are acutely aware of the need to protect their own leaders from any later fallout over crimes committed. The knock-on effect is their failure to support the tightening of legal interpretation against war crimes, even when civil conflict has led to appalling global violations. At the ICTR especially, the "forgotten" international court, there is a growing sense that the prosecution has given up and are going through the motions, albeit on excellent salaries, in the face of Meron’s appeal-bench onslaught and their own inadequacies and apathy (which the situation has fostered).
Victims and survivors are at the very root of international justice - yet they are also forgotten amid all the legal and political disputes. How to explain to them why a politician or military chief who gave orders for their village or family to be destroyed is guilty according to one judge but then released by another; or that for political reasons there can be no extradition, nor will the accused face justice in their new "home" state for financial or political reasons? States that back the concept of international justice but not its implementation cannot be surprised when they are accused of wholesale hypocrisy.
Meron himself, in one of his very few media interviews accepted that international justice was indeed "selective" in a situation where justice was "imposed on the weak [states] but never applied to the strong." The appeal bench president noted that achieving a few prosecutions was better than none at all, which would be the case if the courts did not exist.
The difficulty is that such "selective" prosecutions - together with "selective" decisions inside the courts, based on highly controversial legal interpretations - make the prospects for an end to impunity for war crimes and genocide seem a long, long way off. While much is made of the "never again" mantra when it comes to genocide, perhaps more should be made of "never again" when it comes to failures to bring those responsible to justice.