It is now almost 17 years since more than 800,000 Tutsis and their Hutu sympathisers were killed in Rwanda during three of the most shocking months of murder, torture and rape, while the rest of the world averted its collective eye.

As the horrific details seeped into the public domain over the years, a range of emotions have gripped the world, from guilt to shock to disbelief.

But words cannot begin to describe the mental anguish that continues to be experienced by the surviving victims.

While complete closure may forever be elusive, some measure of healing can be gained by the victims from the ongoing judicial process at the International Criminal Tribunal for Rwanda (ICTR).

It would be foolhardy to suggest that the 1994 massacres occurred in a vacuum, for the background of political, economic and social events that preceded and followed is too complex to be ascribed to the events of a single year, or even a single decade.

And for the rest of the world, a lesson; it would be rash to pat ourselves on the back and pretend that the set of circumstances that came together in Rwanda are unique.

Before Rwanda, there was Yugoslavia and closer to home, recent events in Kenya have taught us how even in the seemingly most stable of countries, neighbour can turn against neighbour. 

The Rwandan trials at the ICTR are instructive to the EAC region.

In particular, for Kenya, now flirting with the idea of a local tribunal to try the perpetrators of its 2008 post-election violence, the successes and failures of the ICTR are of great interest.

For starters, it is clear that a tribunal has far wider reach than the ICC, which confines its prosecution to those most responsible — the planners and financiers of genocide and crimes against humanity.

A tribunal, as we have seen in Rwanda, can and will go after more than just a few top individuals.

It is important to keep in mind that there is a big difference between a local tribunal such as the one Kenya is considering, which may be more vulnerable to political interference and altogether too close to the issues, and an independent international tribunal such as the ICTR, which enhances the perception of due process and fair trial.

So far, ICC Hague trials have been championed as the major solution for Kenya, while in the Rwanda case, the search for justice and peace was broad-based — involving an international tribunal, People’s Courts (Gacaca), security sector reforms, and economic reforms.

Challenging impunity

The ICTR slogan, “Challenging Impunity,” speaks to the deterrent function of the trials as much as it does to the retributive.

The tribunal’s mandate and jurisdiction is concisely defined; the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in Rwanda, and Rwandans responsible for genocide and other such violations committed in the territory of neighbouring states, between January 1, 1994 and December 31, 1994.

While the ICTR’s jurisdiction is confined in space and time, its deterrent effect is intended to spread wide and imprint an unforgettable message; that those suspected of bearing the greatest responsibility for atrocities committed can and will be called to account.

In the years since it begun its work, the ICTR has been much more than a court.

It is an institution that is contributing to the evolution of international law.

In addition to the Statute of the International Tribunal for Rwanda, the tens of cases tried by the tribunal continue to set legal precedent.

It is a challenge to the world to take responsibility for its global citizens.

Countries from all corners of the world have some involvement in the process.

With the seat of the tribunal in Arusha, judges from St Kitts & Nevis, Pakistan, Jamaica, Tanzania, Norway, Guyana, Turkey, Italy, China, Senegal, United States, Madagascar, Russian Federation and Sri Lanka; the current prosecutor from Gambia; the Deputy Prosecutor from South Africa; ad litem judges and defence lawyers from several countries, the ICTR has truly earned its international status.

Besides, several countries have contributed to the arrest of suspects, or have agreements to conduct trials or enforce sentences.

In addition to its legal function, the ICTR is an historical archive, memorialising the events of 1994 in perpetuity.

The case documents tell a tale that forms a dark part of human history; a reminder to future generations, for those who forget history are doomed to repeat it.

The tribunal’s principle role, however, continues to be the quest for justice on behalf of the victims of the 1994 genocide in Rwanda, and to this end the arrests, trials, conviction and sentencing of the guilty.

International co-operation

The banning of the death penalty by Rwanda’s parliament and co-operation with Interpol have been instrumental to the successful arrest and extradition of fugitives.

In June 2007, Rwanda’s parliament voted to end capital punishment to smooth the transfer of suspects from countries that refuse to extradite people to nations that practice the death penalty.

Later that year, Interpol created the Rwandan Genocide Fugitives Project with the objective of apprehending the people wanted by ICTR.

Numerous fugitives have since been arrested, among them former Minister for Planning Augustin Ngirabatware — on September 17, 2007, in Germany. His case is currently being heard.

Others include former Deputy Governor Dominique Ntawukulilyayo, arrested on October 17, 2007 in France; former mayor Grégoire Ndahimana, arrested on August 10, 2009 in the Democratic Republic of Congo (DRC); former Youth Minister Callixte Nzabonimana, arrested on February 18, 2008 in Tanzania; and Captain Idelphonse Nizeyimana and Pastor Jean-Bosco Uwinkindi, arrested on October 5, 2009 and June 30, 2010, respectively, in Uganda. The two are in custody awaiting trial.

Fifty-two cases and counting

The ICTR has completed the trial of 52 cases. Of these, there have been 36 convictions, eight acquittals and eight cases pending appeal.

Seven of those convicted have been released after completing their sentences.

Another 21 cases are in progress, while two are awaiting trial and two have been transferred to the national jurisdiction of France.

Ten indicted suspects are still at large. It is interesting to note that all but one of the suspects indicted by the ICTR are men.

Pauline Nyiramasuhuko, former Minister for Women Affairs and president of the National Assembly, is the first woman to be indicted by an international court for genocide and crimes against humanity. Her case has been on trial for close to 10 years now.

Besides the expected government and military cases tried and still on trial at the ICTR, there have been some unlikely cases that go to show the tribunal is not just a court for the powerful and mighty in government.

These include the media cases, the trial of a famous musician, and the trial of a witness who was induced by a defence investigator to change his story and lie to the appeals chamber.

These cases are worth studying, particularly in Kenya where one of the named ICC suspects is a media man and where some potential witnesses have already begun changing their stories. 

The media case

The power of the media, for good or evil, is indisputable.

The ICTR trial and sentencing of three former media bosses for their role in the 1994 massacres goes down in history as a lesson on media accountability, and a potential deterrent to those who would use the media to cause harm.

As the ICTR states in its judgment in this case, “the power of the media to create and destroy fundamental human values comes with great responsibility. Those who control such media are accountable for its consequences.”

The case raises important issues on where the line is drawn between freedom of speech and hate speech and between hate speech and incitement to commit genocide.

At trial, all three were found guilty of several counts relating to genocide and crimes against humanity.

Ferdinand Nahimana and Hassan Ngeze were sentenced to life in prison in 2003, while Jean-Bosco Barayagwiza was given a 35-year sentence.

Nahimana and Barayagwiza were both founding members of Radio Télévision Libre des Mille Collines (RTLM) and members of the station’s steering committee and held supervisory responsibilities.

Nahimana also played an active role in determining the content of RTLM broadcasts.

Ngeze, the founder and editor-in-chief of Kangura newspaper wrote many articles and editorials that the trial chamber found “openly evidenced his genocidal intent.”

In November 2007, the Appeals Chamber partially allowed appeals against conviction for all three men.

Nahimana’s sentence was reduced to 30 years, Ngeze’s to 35 years and Barayagwiza’s to 32 years.

The complexity of the issues in this case is underscored by the fact that of the five judges, four wrote partial dissenting opinions.

In his dissent, Judge Meron argued that hate speech that does not incite the listeners to violent actions is not criminal.

Just a musician

Among the cases that have stood out is the trial and conviction of well-known Rwandan composer and singer Simon Bikindi, accused of writing lyrics that incited killing in the 1994 genocide.

The songs were repeatedly broadcast on radio, accompanying anti-Tutsi propaganda.

Bikindi was arrested in The Netherlands in July 2001 and transferred to the Tribunal.

He was found guilty of Direct and Public Incitement to Commit Genocide based on his exhortations to kill Tutsi through a public address system on the main road between Kivumu and Kayove in June 1994.

However, the prosecution was unable to prove that he had any complicity in the dissemination of his songs to incite genocide, although the tribunal found that he composed two of his songs, Nanga Abahutu (I hate the Hutu) and Bene Sebahinzi (Sons of the father of the cultivators) with the specific intention of disseminating pro-Hutu ideology and anti-Tutsi propaganda, and thus to encourage ethnic hatred. 

In December 2008, he was sentenced to 15 years in jail, with an entitlement to credit for time served in detention.

His appeal was dismissed and he continues to serve his sentence. In June 2011 he will have served 10 years since his arrest.

Double victim?

The GAA case is unique in that it is the only one involving a former witness as a defendant.

It also set a precedent as neither the ICTR nor the International Criminal Tribunal for Former Yugoslavia (ICTY) had previously rendered judgements in which a conviction or sentence for giving false testimony had been imposed.

GAA, known by that pseudonym because he was a protected witness who had previously testified for the prosecution in a different trial, pleaded guilty to giving false testimony under solemn declaration and to contempt of the Tribunal. He was sentenced to nine months in prison in December 2007.

GAA had testified in the trial of Jean de Dieu Kamuhanda, but on appeal, he recanted his testimony, stating that he was not present at Gikomero Parish on April 12, 1994 and did not witness the actions of Jean de Dieu Kamuhanda at the time of the massacre that day as he had previously testified. 

GAA confessed that his false testimony was induced by an investigator on Kamuhanda’s defence team who offered him 1,000,000 Rwandan francs, which he complained was never paid.

The court noted with regret that no indictment was issued against Léonidas Nshogoza, the investigator who offered the inducement to the farmer and genocide survivor in return for changing his story. GAA has since served his sentence and been released.

Co-operation by the Government of Rwanda with the ICTR and the cordial relationship between the two has been crucial to advancing the work of the tribunal.

Without the co-operation of governments, international courts would have a hard time.

Government co-operation is often needed for the arrest and surrender of suspects and the acquisition of evidence and witness testimony.

But it can also be a double-edged sword where the international courts seek to prosecute members of the same government; how to maintain co-operation without compromising the duty to prosecute?

How close a relationship can an international court forge with a government without being perceived to be, or actually being, compromised?

There is also a very real danger that governments may use the courts to settle political scores back home, and punish their vocal critics.

Take American lawyer Peter Erlinder, a lead defence counsel in the Military 1 case at the ICTR and a critic of President Kagame’s regime, who was arrested and charged in Rwanda with Genocide Denial in May 2010 when he travelled to Kigali to defend opposition presidential candidate Victoire Ingabire against the same charges.

Erlinder’s articles, written in the US and published on the Internet, expound on his theory that there can be no genocide in the absence of conspiracy.

Denying the 1994 genocide is a crime in Rwanda.

In a piece published in the Jurist titled Rwanda: No Conspiracy, No Genocide Planning... No Genocide? he questions whether the 1994 murders in Rwanda can properly be called “Genocide” given that all of the top Rwandan military officers were found not guilty of conspiracy or planning to commit genocide.

While Erlinder was released in June 2010 on medical grounds after a hue and cry was raised in the United States, Madame Ngambire remains in prison.

What’s more, the Genocide Denial law can not auger well for forthright testimony by witnesses at the ICTR.  

Getting it right

As the ICTR begins its 17th and perhaps final year, 10 judgments involving 21 defendants are still pending at the trial level.

The ICTR estimates that these judgments should be completed by the end of 2011.

There is no denying that justice has been a long way coming. The first trial at the ICTR begun in January 1997.

Since then the tribunal has tried 52 cases in 10 years, an average of five cases a year.

The tribunal has spent $1.4 billion, and still counting, clear proof that international justice does not come cheap.

The challenges the ICTR faces are bound to affect the pace of the proceedings.

Translation of documents; interpretation of testimony between English, French and Kinyarwanda, transport of witnesses from all parts of the world; and the unavailability of witnesses are all factors that make for a prolonged process. 

As to whether the process has been worthwhile, the formula to calculate the reasonable cost of justice for the calculated deaths of close to one million and the suffering of many more has yet to be discovered.

Perhaps this is a situation where getting it right is more important than getting it over with.

As to the most important benefit, the strong message to those who would plan the torture and extermination of civilians, that they will face justice and could spend the rest of their lives in prison, the value is priceless.

In assessing the success or failure of this and any other international court, a measure of realism is necessary.

While an international tribunal may fulfil the objectives of retribution and deterrence, it is not a fix-all solution.

Reconciliation, advancement of democracy and institutional reforms are all issues that a country must work on itself.