International justice and Rwanda: Has the UN failed again?

Has the international court system provided Rwandan genocide survivors proper justice?

    The ICTR has become the forgotten court, writes Wallis [AFP/Getty Images]
    The ICTR has become the forgotten court, writes Wallis [AFP/Getty Images]

    This month, the world has focused its attention on Rwanda as it commemorates the genocide against the Tutsi that tore the country apart during the summer of 1994. For those present at the Amahoro Stadium in Kigali on April 7 for the main commemorative event, the screams of agony from still traumatised survivors in the crowd revealed for many survivors the suffering continues.

    A continuing source of pain is seeing those they hold responsible for the slaughter being acquitted or given meagre sentences at the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania. Having been failed by the United Nations which stood by and watched the genocide unfold, many accuse it again of failing again - this time to bring justice.

    The ICTR had notable successes in its early days. A legal precedent was set with the trial of Jean-Paul Akayesu with rape judged to be an act of genocide. Use of the media as a crime of genocide was also determined. In 2006 it was recognised by the Appeal Chamber that "there was a genocide in Rwanda against the Tutsi ethnic group,"  asserting as historical fact the events between April and July 1994.

    Yet during the past seven years a series of highly controversial appeal bench acquittals and sentence reductions for senior military and political leaders held responsible for organising the genocide has left the legacy of the $2bn court in doubt.

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    For those who think this is purely a "Rwandan" problem should think again. In the past few years an apparent change of legal interpretation by the appeal bench has blasting a hole though previous recognised norms of "command responsibility" of military and political leaders.

    Leading this change for a vastly higher "burden of proof" is Judge Theodor Meron, an 84 year-old American legal academic and President of the appeal courts at the ICTR and sister court - International Criminal Tribunal for the former Yugoslavia (ICTY) - in The Hague.

    The Meron-led ICTY introduced the idea of having to prove "specific direction" by an accused military or senior political leader for them to be found guilty. Previously, just having knowledge of what your troops were going to do or had done would count as aiding and abetting and meant a hefty sentence. Now this change to proving "specific direction" has meant a new "pattern" to appeal judgements in the past few years at ICTY/ICTR.

    Senior officers like Anatole Nsengiyumva and Theoneste Bagosora and politicians such as Justin Mugenzi and Prosper Mugiraneza have had sentences slashed or they have been acquitted. Meron has presided over the ICTR appeal bench - usually made up of 5 or 3 judges - for all 8 acquittals at the ICTR.

    In a leaked email to fellow ICTY judges, Frederik Harhoff accused Meron, of working under a US agenda. Harhoff's allegation, backed by many inside and outside the judiciary, was that Meron "watered down" command responsibility to quell fears from the US in particular that it could ever face legal action against its senior leaders.

    Wikileaks-released documents revealed one US ambassador noting Meron was "the tribunal's pre-eminent supporter of United States government efforts". While a former legal advisor to the ICTY, speaking anonymously, said "the perception among my colleagues is that Meron takes instructions from the US government and that this reigning in of the legal standards - as we have seen with the acquittals - would have implications for the US and probably Israel."

    The argument is while the Cold War was in full swing, the five permanent Security Council members had little reason to think that a few years down the line they would become embroiled in some horrendous conflicts. All now face the possibility their politicians or military leaders could face war crime charges in Iraq, Afghanistan, Gaza, Chechnya or Libya.

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    The recent overturning of long sentences against Croatian and Serb military leaders at the ICTY by Meron has increased this perception of a "hidden" agenda.

    However, all is not plain sailing for this new "command responsibility" logic. Meron's appeal bench had its precedent-setting ruling, made in the case against army chief General Momcilo Perisic, overturned in January 2014 by another ICTY appeal bench which Meron had decided not to sit on (and which confirmed the sentences for four Serbian officials). They decided that the "specific direction" was in error and the Serbian commander had his guilty sentence upheld.

    Equally, the International Criminal Tribunal for Sierra Leone dismissed "specific direction" in upholding Charles Taylor's original guilty conviction.

    The result of the current undignified, and for many unfathomable, legal and political battle within the International appeal chamber invariably tarnishes its judgments. Can justice be seen and believed to be done when even the judges disagree between themselves over liability for the most terrible of crimes?

    The ICTR has become the forgotten court. While appeal decisions in cases such as Serb leader Radovan Karadzic and military commander Ratko Mladic will cause huge media and political interest, those against Rwandans accused of similarly horrific crimes creep quietly under the western headlines.

    The "Meronisation" of international justice has been a disaster for combatting impunity and denial. Former ICTR spokesman Tim Gallimore said, "It is difficult to say that the victims and survivors of the genocide against the Tutsi have received justice." This verdict is set to become more relevant with the expected overturning by Meron's appeal bench of the 30 year trial sentence for genocide against General Augustin Bizimungu in the coming weeks.

    The United National failed Rwanda in 1994 - and no amount of positive media "spin" over the legacy of its court will persuade survivors that it has not now failed them yet again.

    Dr Andrew Wallis is a journalist, academic and author of Silent Accomplice: The untold Story of the Role of France in the Rwandan genocide, i.b.Tauris, 2014

    SOURCE: Al Jazeera



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