The International Criminal Tribunal for Rwanda (ICTR) was set up not only to prosecute persons responsible for serious violations of international humanitarian law between 1 January and 31 December 1994 but with the belief that prosecutions will contribute to the process of national reconciliation and to the restoration and maintenance of peace. Three and a half years later, it is becoming increasingly clear that the ICTR will not be able to contribute significantly to national reconciliation. This article summarises some of the main arguments leading to this conclusion and tries to indicate to what extent these arguments apply to a permanent International Criminal Court (ICC) that may be established soon.
A reasonable time-frame
As of early April 1998 no single person has been acquitted or convicted for facts of genocide or other crimes against humanity by the ICTR. In the meantime, and during years that are not included in the ICTR mandate, thousands of Rwandese have been killed in Rwanda by the Rwandese Patriotic Army (RPA) and some 200,000 Rwandese refugees have disappeared in the Democratic Republic of Congo. The ICTR has had no deterrent effect whatsoever to prevent this loss of life and it will not reveal the truth nor identify and prosecute those responsible for mass human rights violations from 1995 onward. After the Nuremberg trials, chief prosecutor Taylor was recorded as saying that if the trials (…) had started and been finished a year earlier, it might well have been possible to bring their lessons home to the public at large far more effectively. His observation applies very much to the Rwandese scenario. Even if the ICTR succeeds in judging the main leaders of the genocide in Rwanda, too much has happened since for the Rwandese to be convinced that human rights violations cannot go unpunished and that peace and reconciliation should prevail over violence or revenge. The ICC, if sufficiently funded and staffed, would definitely be in a much better position to avoid the waste of time caused by the start-up delays as well as other problems that are inherently linked to an ad hoc institution.
Compensation of victims
Contrary to the approach of a truth and reconciliation initiative, the ICTR is accused entered, not victim entered. Prosecutions and judgments are concentrated on the acts of the accused, not on the suffering of victims. Interestingly, the Special Prosecutors Office in Ethiopia for instance, was set up not only to conduct investigations and institute criminal proceedings against individuals but also to record for posterity the brutal past of Mengistus regime. As a consequence, court hearings to some extent are also truth commission sessions: the number of witnesses exceeds the number of testimonies needed for strictly legal purposes. One of the main aspects linked to the ICTR accused entered approach is the impossibility for victims to take part in proceedings as civil parties. In some instances where cases were deferred from a national jurisdiction to the ICTR, victims even lost their status of civil parties. Belgium recently filed a petition maintaining that eligible parties have the right to appear as plaintiffs in case they have been dispossessed of their goods. Currently, the only option for victims to obtain compensation is to bring an action before a national court, for which the ICTR judgement shall be considered final and binding as far as the criminal responsibility of the convicted person is concerned (Rule 106). Under the latest (Zutphen meeting of January 1998) version of the ICC draft statute, three proposals are put forward with regard to compensation of victims. The minimal option is nearly identical to Rule 106 of the ICTR, the maximum option allows the ICC to determine a compensatory award or another order for reparations. It has been recommended by Amnesty International that, in case no provision for compensation is adopted by the ICC, an international civil court or a claims commission be established.
The Arusha detention facilities are currently holding 23 indictees. All of them are dignitaries, military, business people, journalists or other persons connected to the pre-April 1994 regime of Hutu president Habyarimana. However, the mandate of the Tribunal not only relates to the genocide against Tutsis and moderate Hutus, it also covers other crimes against humanity. There are several serious reports indicating that the Rwandese Patriotic Front is responsible for violations within the ICTR mandate. And yet, nothing happens. Internal sources within the ICTR indicate that these violations are not being investigated, i.e. because of some clear suggestions by the new regime in Kigali that such would jeopardise all ICTR activities on Rwandese territory. This political imbalance will certainly increase the popular perception that Arusha stands for victors justice. This should definitely be one of the main lessons for future ICC operations, though in practice the problem may come up again. To some extent, governments will always hold the key to the level of investigation, the protection of witnesses and the security of ICC personnel on their territory.
Justice and social order
The distance between Rwandese citizens and the ICTR is enormous. As already indicated in late 1994 by the Independent Commission of Experts appointed to investigate the Rwanda genocide, an international tribunal, compared to domestic courts, generally lacks sensitivity to nuances of local culture. This may mean that their decisions have less immediate symbolic force than verdicts rendered by courts familiar to the local community. Particularly in the early ICTR stages, minimal outreach and public relations took place in Rwanda. Reportedly contacts between ICTR staff and NGOs or genocide survivors associations were not encouraged, and the initial popular suspicion surounding yet another international institution was definitely fuelled by the attacks on witnesses interviewed by the ICTR. Finally, the traditional role of justice in Rwanda, as in many other African countries, is to promote restoration of social order and of congenial relations with fellow citizens. This collective nature of traditional justice definitely contrasts with the modern, retributive understanding of justice which inspires the ICTR and also the ICC. These may, on the other hand, be useful models in terms of fair trial setting for domestic modern justice.
The ICTR is not expected to propose specific structural reforms at the level of the government administration, security forces or society at large (through human rights education programmes for example) in order to prevent recurrence of past abuses. However there is obviously an inherent (be it one-sided) deterrent effect in the prosecution and judgement of suspected genocide leaders. It must also be stressed that in terms of prevention, at UN level, the ICTRs role is completed by the promotional and training activities of the field operation of the High Commissioner for Human Rights similar UN operations may be set up in parallel to future ICC activities.