Last month I attended a panel discussion called “Post Genocide Rwanda: Inventing Structures of Hope” at Brown University’s Arts in One World conference. One speaker in particular, Tim Gallimore, had much to say that I wanted to share with my Law and Security Strategy readers. So I interviewed him. With events relating to Rwanda making headlines recently, the interview is particularly timely. Just last week the International Criminal Tribunal for Rwanda (ICTR) sentenced one of Rwanda’s former army generals to thirty years in prison for his involvement in the 1994 genocide. Earlier this week, the ICTR prosecutor announced the arrest of Bernard Munyagishari, who is wanted by the ICTR on genocide charges. And as Kimberly Curtis of the FPA Human Rights blog wrote last week (here and here), the current human rights situation in Rwanda remains controversial. Tim Gallimore is the former spokesman for the ICTR prosecutor. We conversed over email about genocide, the work of the ICTR, and the current situation in Rwanda.
GRACE: One criticism of the ICTR you raised at Brown was the cost. ICTR cases have proceeded slowly and the tribunal is incredibly expensive. Its annual UN budget exceeds $100 million. And this figure is in the same range as other international judicial fora, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC). Has the ICTR been worth the cost?
GALLIMORE: The answer will depend on who you ask. Families of genocide victims would probably say “No.” The disfigured, poor, starving, traumatized, and HIV/AID positive genocide survivors would perhaps also say “No”.
GRACE: Is international justice, in general, worth the cost?
GALLIMORE: International justice as we know it, in general, is a necessary evil. Entities like the ICTR/ICTY and ICC are an admission to failure. They are after-the-fact mechanisms for dealing with the international community’s failure to deter, prevent, and to protect despite its many resolutions and often repeated mantra of “never again.” The money for these institutions would be better spent on prevention of conflict.
GRACE: Is there anything the ICTR could have done to reduce its operating costs? Or is the expensiveness of international justice inescapable?
GALLIMORE: Death is the only thing that is inescapable. International justice need not be as expensive as it has become.
The ICTR could have reduced its operating costs by employing national legal experts from the East Africa region, rather than relying on United Nations staff who earn international salaries and benefits to prosecute the cases. The Tribunal could have saved money by requiring the defendants (Accused) to pay for their own defense attorneys and investigation teams. Each and every indicted person appearing before the Tribunal claimed to be indigent, thus obligating the ICTR (or more accurately, the international community) to pay for the prosecution and defense of these individuals. Some of the accused were wealthy Rwandans who allegedly absconded with the nation’s treasury when they fled the country just after the genocide. I am not convinced that not a single one of them has the financial resources to mount an adequate defense. In any event, those qualified attorneys around the world who claim to love justice and guaranteeing the rights of the accused could have, and should have, made themselves available for pro bono representation of those who were indicted by the ICTR.
It has been acknowledged that the early prosecution strategy of conducting joint (multiple-accused) trials slowed down the process and added to the overall cost of operating the Tribunal. That practice has been discontinued but the joint trials, some of which are still in progress more than a decade later (see the Butare trial ICTR -98-42), have consumed more resources than they would have consumed had they been tried as single-accused cases.
The cost of the ICTR would have been less if the Tribunal had taken the decision earlier than 2006 to issue judicial notice that there was genocide against the Tutsi ethnic group in Rwanda in 1994. Delay of that decision on judicial notice obligated the Prosecutor to present evidence in every case to prove that the genocide did take place. Much prosecutorial time and defense attorneys’ billable hours could have been avoided with an earlier judicial determination that the genocide did happen.
GRACE: You also critiqued the ICTR for its reluctance to transfer cases to Rwanda. The ICTR’s concern is about preserving the human rights of the defendants. Rwanda had the death penalty, as you noted, which risked violating the defendants’ right to life. But, as you also noted, Rwanda abolished the death penalty in 2007, and the tribunal remains hesitant to transfer cases to Rwandan jurisdiction. How does the tribunal now justify its hesitation? Why, in your view, are these reasons invalid?
GALLIMORE: I would have to read the most recent rejections of the Prosecutor’s motion to transfer cases to Rwanda to see what justifications the Trial Chamber judges are now offering for not transferring cases to Rwanda. I did read the decisions in the first round of rejections and, in addition to the existence of the death penalty in Rwanda, the reasons that the judges provided for not granting the transfers included:
1. The penalty structure in Rwanda. The judges found that conditions of detention in Rwanda for any person transferred for trial and convicted would not be “under international standards.” They concluded that any genocide convict would be subjected to life imprisonment in isolation or solitary confinement.
2. Independence of the Rwandan judiciary. The ICTR judges were not “satisfied” that the Accused would receive a fair trial in Rwanda. They concluded that trial by a single judge may compromise fair trial rights of the accused because of the Rwandan Government’s “tendency to pressure the judiciary” and because “past practice has shown interference with judicial decisions.” (See Munyakazi case, ICTR-97-36A.)
3. Guaranteeing availability and protection of defense witnesses. The judges reached the conclusion that defense witnesses might fear being charged with promoting genocide ideology if they testify for the accused in Rwandan courts. The ICTR judges also found that there would be a lack of “equality of arms” if defense witnesses choose to testify by video technology rather than in person as prosecution witnesses.
GRACE: Why, in your view, are these reasons invalid?
GALLIMORE: In my view, the judges’ reasons are invalid because they are based on speculations about what might happen and how people might behave. The judges have no way of knowing that the dreadful things they identified will indeed happen, or even might happen, to the accused if they are transferred to Rwanda for trial.
Their concern about international penalty for crime and international standards of detention reifies the double standard of justice that many have charged the Tribunal with perpetuating. Rwanda has a prison that meets international standards of incarceration and convicted prisoners from the Special Court for Sierra Leone are in that prison now. Many of the ICTR indictees who would be transferred for trial built and maintained the Rwandan prisons over the decades before the genocide and no one in the international community seemed to care much that these prisons were not up to international standards until there was the possibility that genocide convicts would have to live in these same facilities.
Rwandan courts have much more experience prosecuting genocide cases than the ICTR. Rwandan judges have adjudicated thousands of genocide cases some of which have resulted in acquittals. To argue as the Trial Chamber judges do that the structure of the Rwandan judicial system is inherently biased against the accused flies in the face of reason and fact. The Rwandan courts and legal system have managed to provide legal defense, protection of witnesses, and access to evidence for the parties in thousands of cases. In fact, the ICTR relies on the Rwandan legal system to protect witnesses and to facilitate the collection of evidence for the trials at the Tribunal. It is rather odd that the ICTR judges are satisfied with the performance of the Rwandan system in meeting the Tribunal’s legal needs but find the same system unsatisfactory for meeting the nation’s own needs.
GRACE: As you also stated at Brown, the tribunal has been reluctant to press France to proceed with prosecutions. The ICTR referred the cases of Wenceslas Munyeshyaka and Laurent Bucyibaruta to French courts in 2007, and they have still not been prosecuted. What could the ICTR do, and what could it have done, to press France more forcefully? What unused tools are at the ICTR’s disposal?
GALLIMORE: The ICTR judges required the Prosecutor to submit monitoring reports every three months on these two cases as a condition of the transfer to France. The monitoring reports are to ensure that France “diligently” prosecutes the two transferees. I do not know if those monitoring reports are being submitted to the Trial Chamber but it would be worthwhile for justice-loving advocates and watchdogs of fair trial rights to request copies of the reports to verify that prosecution is taking place. If diligent prosecution is not taking place, the Trial Chamber can revoke the transfers and require France to hand over the two indictees to the ICTR for trial.
There is precedent for revocation. In May 2008, the Trial Chamber revoked the transfer of Michel Bagaragaza to The Netherlands and ordered his return to ICTR custody for trial.
The Prosecutor or the Tribunal President can report France to the Security Council for not cooperating with the Tribunal in the prosecution of the two accused in its custody or for not cooperating in the apprehension and prosecution of other indicted fugitives who may be hiding in France.
The ICTR could also use the pressure of public opinion through public disclosure about the status of the case to get France to diligently prosecute the two accused.
GRACE: What explains the ICTR’s reluctance to press France? At Brown you raised the possibility that the ICTR has a Western bias. But could the concern be monetary? Perhaps pressing France would endanger the tribunal’s finances?
GALLIMORE: I suspect that the Tribunal’s reluctance to “press France” to prosecute Munyeshyaka and Bucyibaruta has more to do with politics and real international law that with a threat to its finances. The realpolitik of the Security Council (P5) permanent members probably drives what gets done or does not get done more than money to keep the ICTR in business. It has been publicly alleged on numerous occasions and in multiple venues that France armed, trained and otherwise assisted the former Rwandan regime and death squads that carried out the genocide in 1994. It has also been alleged that China’s actions in the Security Council have blocked greater intervention to stop the genocide in Darfur because China has economic interests (oil contracts) that would be threatened if peace and stability were to return to Darfur. I am in no position to pronounce on the veracity of these allegations but I believe they might offer a more plausible explanation for not pressing France to prosecute the two genocide suspects who have been on its territory for almost two decades and in its legal custody for prosecution on an ICTR indictment since 2007.
The circumstances and legal context surrounding the transfer of the cases to France in 2007 may be a better explanation about the reluctance of the ICTR “to press France to proceed with prosecutions” of the two genocide suspects in its custody. The legal exchange between French legal authorities and the ICTR leading up to the granting of transfers by the Trial Chambers were quite interesting—more interesting than the transfers themselves in my opinion. France had raised the issue of “primacy” of the Tribunal by questioning the validity of the ICTR arrest warrant and requiring evidence from the ICTR Prosecutor before executing the warrant and taking custody of the suspects. French authorities were arguing that any arrest of Munyeshyaka and Bucyibaruta would have to happen under a French warrant and in accordance with French law and not based on an ICTR warrant. The UN Resolution establishing the Tribunal gives the ICTR legal priority or primacy over all national courts in matters concerning prosecution of individuals indicted by the ICTR. All national courts are required to defer to the jurisdiction of the ICTR and it was this international legal principle that France was questioning.
There was an international legal train wreck in progress and some real international law was about to be made until the Trial Chambers derailed the confrontation by granting the transfers. The transfers made the primacy issue moot and it took the French courts another few months after the ICTR referrals to decide that they would accept the transfers that the Tribunal had granted.
It is worth noting that the same panel of judges that granted the transfers to France rejected the Prosecutor’s first requests to transfer ICTR cases to Rwanda for trial. A reading of the disparate treatment of the transfer cases involving Rwanda and France indicate a double standard and a distinct Western bias of the Tribunal judges. The ICTR judges subjected the Rwandan courts and legal system to different and additional scrutiny than what they applied to the French courts and legal system as criteria for judicial satisfaction to justify transfer of the cases.
The same bias was present in the unsuccessful transfer of Bagaragaza to The Netherlands.
GRACE: Let’s look at the positives of the ICTR. What contributions has the ICTR made to bringing the genocide perpetrators to justice and, more broadly, to developing the body of international law?
GALLIMORE: To date, the ICTR has indicted 90 persons and arrested 80 of them including 1 witness and a defense investigator. The Tribunal concluded the trial of 59 of the accused with 51 convictions and 8 acquittals. There are 9 cases on appeal. Another 16 cases are in progress and 1 accused is still waiting to go to trial. Two of the accused died before completion of their trials. Ten (10) fugitives are still at large. The U.S. State Department is offering $5 million under its Rewards for Justice War Crimes Program for information leading to the arrest of these fugitives. All trials should be completed by mid 2011 and all appeals in 2012 or early 2013 when the Tribunal is expected to close.
The ICTR has been successful in its mandate to hold accountable the highest level of perpetrators who organized and carried out the genocide in Rwanda. The trials completed by the Tribunal have challenged the historical impunity that existed in Rwanda for government and military officials who conducted previous massacres of Tutsi civilians under a societal ideology of hatred and extermination as a final solution to a scapegoat minority.
Taking bad guys and one bad gal out of circulation
One significant accomplishment of the Tribunal was taking the would-be genocide perpetrators out of circulation. Most of the genocide government/cabinet/military leaders are in detention or have been tried and convicted.
Besides its success in holding accountable the so-called “big fish” among the genocide perpetrators, the Tribunal has made substantial contributions to international criminal jurisprudence and to the developing human rights legal regime.
Interpreting the Geneva Conventions/Defining Genocide
The ICTR was the first international tribunal to interpret the definition of genocide set forth in the 1948 Geneva Conventions. The ICTR jurisprudence is a particularly important source for both the definition and application of the legal components for the criminal offence of genocide.
Rape as an Act of Genocide
The first ICTR judgment was groundbreaking for its finding that rape can be an act of genocide.
No Immunity from Prosecution for Heads of State
The ICTR was the first international tribunal since the International Military Tribunal in Nuremberg in 1946 to hand down a judgment against a head of government. The Former Prime Minister of the Interim Government of Rwanda, Jean Kambanda, was convicted of genocide and sentenced to life in prison, thus reaffirming the principle that no individual enjoys impunity for serious mass crimes because of official position. By judging the international fugitives who fled beyond the reach of Rwanda, the work of the Tribunal represents a significant attack against the historical government impunity for killing Tutsi in Rwanda.
Legal Doctrine of Command/Superior Responsibility
Under this doctrine, military commanders are held personally responsible for human rights violations and other international crimes committed by their subordinates if the superiors knew, or should have known about commission of those violations and did not prevent them or punish the perpetrators after commission of the crimes. The Tribunal’s Statute in Article 6(3) endorses the application of the doctrine of command responsibility to the civilian leadership.
Freedom of Expression vs. Incitement to Criminal Action
In the “Media Case”, the Tribunal established the legal principle that those who use the media for inciting the public to commit genocide can be punished for their communication which amounts to hate speech and persecution as a crime against humanity. This is the first contemporary judgment to examine the role of the media in the context of inciting the public to commit crimes. This important case addresses the boundary between the rights guaranteed under international law guaranteeing freedom of expression and incitement to genocide. See Nahimana, Case No. ICTR 99-52-T.
Judicial Notice of Genocide of the Tutsi
On June 16, 2006, the ICTR Appeals Chamber issued a decision that the Trial Chambers must take judicial notice that between April 6, 1994 and July 17, 1994 there was genocide in Rwanda against the Tutsi ethnic group. Judicial notice of the genocide means that the occurrence of the 1994 genocide in Rwanda is to be taken as an established fact that is beyond dispute and does not require any further proof. By establishing this legal fact (judicial notice) the ICTR put on record the genocide against the Tutsi and provides moral grounds for the international condemnation and public rebuke of the perpetrator of genocide crimes.
Judicial/Historical Record of the Genocide
The work of the Tribunal establishes a historical record against genocide negationism and revisionism. It also created an archive and depository of records for writing a new history and for re-imaging of Rwanda.
Cathartic for Trauma Healing
The trial process at the ICTR gives voice and audience to some of the genocide survivors to tell their stories and to validate their experiences of suffering. It has been argued that the ability to give testimony (witnessing) empowers survivors who appear as witnesses and assists in their psychological recovery and emotional healing.
Legal Precedent for National Prosecutions
The numerous decisions of the Tribunal on procedural and administrative issues have created a framework for prosecution of genocide and related crimes by courts in national jurisdictions.
GRACE: Some criticize the ICTR as a mechanism of “victor’s justice.” These critiques come, predictably, from defendants and their representatives, but they come from more reputable sources as well. Human Rights Watch (HRW), for example, has called on the ICTR to take on cases involving crimes committed by the Rwandan Patriotic Front (RPF). Human Rights Watch notes: “According to the United Nations High Commission for Refugees, between April and August 1994, the RPF killed between 25,000 and 45,000 civilians. At least four United Nations agencies, Human Rights Watch, and other nongovernmental organizations have also documented RPF crimes.” Why has the ICTR not pursued these cases? Should it have?
GALLIMORE: The ICTR did pursue these cases and referred them to Rwanda for trial. The trials were promptly completed and the guilty convicted and sentenced for their crimes. These allegations of RPF crimes were the subject of special investigations by the ICTR Prosecutor who provided updates to the Security Council and a report on their disposition.
GRACE: But HRW has scathingly critiqued these trials, calling one ” a political whitewash and a miscarriage of justice, betraying the rights of victims’ families to obtain justice for their loved ones.” HRW paints a picture of a biased court giving out lenient sentences to the RPF. Why you think HRW is wrong about whether justice was done?
GALLIMORE: HRW does not hold any special status of infallibility that requires any one to prove it wrong about its many inaccurate and politically biased statements and conclusions. HRW pronouncements and reports do not create a presumption of truth or accuracy giving readers a burden to prove that the organization is wrong. Readers can assess the value of HRW statements and reports based on the transparent data and credible evidence on which it bases its assertions and conclusions.
I was not aware that HRW has the mission or expertise to assess whether justice was or was not done in national courts. It would be interesting to see the HRW assessments of justice in national courts other than Rwanda. The surveillance of the two ICTR cases that were transferred to France for prosecution might be a useful start for the expanded mission of HRW to ensure justice in all legal jurisdictions.
The document to which you referred is a letter from the Executive Director of HRW containing a lot of assertions, opinions, and conclusions aimed at pressuring the independent Prosecutor of the ICTR to take action that HRW, or at least the Executive Director, believes should be taken. It is extremely presumptuous of HRW to be instructing the ICTR Prosecutor about the merits of indicting parties based on “evidence” that HRW “believes” that the Prosecutor has. HRW is hardly in a position to assess the evidence that the Prosecutor has never mind second-guessing the Prosecutor’s decisions based on evidence that HRW has not seen. In addition, the Prosecutor is prohibited from seeking or accepting directions from any outside source in discharging the responsibilities with which the Security Council has entrusted him. The high standards of international justice are perhaps better served by disinterested and independent prosecutors than by passionate human rights advocacy organizations.
While I was at the ICTR, I remember getting inquiries from Human Rights Watch researchers and other human rights organizations about the Prosecutor’s request to transfer cases to Rwanda. They were looking for information with which to disparage the Rwandan legal system and to discredit the Rwandan government in a campaign to influence the ICTR judges not to transfer cases to Rwanda for trial. I say this because the researchers’ questions demonstrated that they were more interested in their own agenda and in information to fit that agenda than they were in hearing the facts about the cases and the legal rules and procedures that the Tribunal would follow in assessing the Prosecutor’s request to transfer the cases.
If memory serves me right, HRW filed 4 or 5 amicus briefs arguing against the transfer of cases to Rwanda. These amicus briefs are replete with exactly the type of information that the researchers were trying to obtain or to confirm, in their questions to me. This organization is definitely not in a disinterested or dispassionate position to make objective commentary about the administration of justice in Rwanda.
It was not too long ago that organizations like HRW were criticizing Rwanda for handing out too harsh a punishment to RPF soldiers and civilians alike who were convicted by the Rwandan courts for criminal activity during the same period of armed conflict and genocide as the “whitewashed” cases for which it now criticizes the courts for being biased and too lenient.
GRACE: In Rwanda, it is a crime to deny the Rwandan Genocide. Can you lay out the justification of this law for my readers?
GALLIMORE: There are actually three different laws in Rwanda with provisions against genocide denial. One law criminalizes negating, minimizing, justifying or approving of genocide. A second measure outlaws genocide ideology, and the third prohibits discrimination and sectarianism. It would take a separate interview (analysis) to answer this question adequately and I am willing to do so at a later time. I am also willing to get the legislative notes and discussions of the Rwandan Parliament that should “lay out the justification” for their prohibition on genocide denial in the various laws much better than I can based on my own reading and analysis of the legal documents.
GRACE: Should we worry about the current political situation in Rwanda?
GALLIMORE: No
GRACE: According to The New York Times, Rwanda under President Kagame is “orderly but repressive” and “increasingly intolerant of political dissent.” Current events in the Arab world demonstrate the unsustainability of political repression. Though Rwanda is stable now, is Kagame sowing the seeds of eventual unrest?
GALLIMORE: No
GRACE: HRW has condemned what it calls “the steady crushing of political dissent” in Rwanda. Why do you think HRW is wrong?
GALLIMORE: Once again, HRW enjoys no privileged status with respect to the truth or “rightness” of its opinions and conclusions about political conditions and freedom of expression in Rwanda—or anywhere else for that matter. HRW makes a pretty sensational and sweeping charge about political dissent in Rwanda but offers no verifiable data or credible independent sources for that conclusion. It does follow the fallacious strategy of recirculating citations of undocumented charges that somehow are supposed to be taken as truth just because they appeared in HRW documents or in the New York Times.
The HRW document to which you referred is a commentary, an opinion piece by a HRW officer. The piece does contain the charge that the Rwandan government is “steadily crushing” political dissent. But the HRW official offers no evidence on which she based that conclusion. Yes, she does immediately refer to a New York Times article after making the accusation but she provides no supporting data to convince the reader of the accuracy of her conclusion. The New York Times article (April 30, 2010) on which she appears to be basing her salacious charge of political repression in Rwanda demonstrates the circular citation fallacy. The HRW official cites HRW Director Roth (or HRW cites itself) as the source for evidence of repression in Rwanda. Roth provides the quote that President Kagame is “stymieing a political opposition” in Rwanda. He offers that conclusion without any independent data or without identifying any repressed sources who made that claim.
The New York Times article referenced by the HRW official is full of unsupported claims by unnamed and unspecified “political analysts” “human rights groups” “critics” and political “dissidents” who say Rwanda is “repressive.” The article does quote two opposition politicians who claim to have no space to talk about the genocide. However, the charges of persecution and repression are assertions of the New York Times reporter. The piece should have been labeled “commentary or opinion” because it does not meet the usual journalistic news standards of the Times.
The New York Times’ reporting, no matter how “dogged” does not establish evidence that the Rwandan government killed journalists, dissidents or opposition politicians as HRW is attempting to suggest in its report that you present as truth needing my refutation.
GRACE: Finally, with the ICC, the age of special tribunals is over. Yet the ICC is vulnerable to the same flaws as the ICTR: high costs, slow progress, contamination by political considerations. How optimistic should we be about the future of international justice?
GALLIMORE: If you are interested in more of the same, you can be very optimistic. If you are interested in “blindfolded” justice, you have nothing to be optimistic about because all ICC “situations” under investigation to date are in Africa while there are other “situations” in other parts of the world that warrant investigation and prosecution but have somehow not made it to the ICC docket. The African Union made this observation 2 years ago and called for a resolution of its members to ignore the jurisdiction of the ICC and to boycott any arrest warrants it issues. The “situation” in Sudan/Darfur has not changed despite the ICC arrest warrant for the president of Sudan. Libya’s Kadaffi was recently identified for addition to the list of ICC indicted war criminals. Without the cooperation of police officials in these African countries, the perpetrators of mass violence and human rights abuses seem to have little to fear from the ICC and international justice. Some other method or tool is needed to get the job done.
