Rwanda's Genocide

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<p>Rwanda s G enocide</p> <p>This page intentionally left blank</p> <p>Rwanda s G enocideT he Politics of Global Justice</p> <p>Kingsley Chiedu Moghalu</p> <p>RWANDAS GENOCIDE</p> <p> Kingsley Chiedu Moghalu 2005. The views expressed in this book are those of the author alone. They do not necessarily represent the official positions of the United Nations, the International Criminal Tribunal for Rwanda, or any other organ or specialized agency of the United Nations. All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles or reviews. First published in 2005 by PALGRAVE MACMILLAN 175 Fifth Avenue, New York, N.Y. 10010 and Houndmills, Basingstoke, Hampshire, England RG21 6XS Companies and representatives throughout the world. PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martins Press, LLC and of Palgrave Macmillan Ltd. Macmillan is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 1403970815 Library of Congress Cataloging-in-Publication Data is available from the Library of Congress. A catalogue record for this book is available from the British Library. Design by Newgen Imaging Systems (P) Ltd., Chennai, India. First edition: November 2005 10 9 8 7 6 5 4 3 Printed in the United States of America.</p> <p>For Maryanne, and our children Tobenna, Smchi, Yagazie, and Chidera</p> <p>This page intentionally left blank</p> <p>ContentsList of Figures Acknowledgments Introduction: Political Justice 1. The Final Solution to the Tutsi Problem 2. Send in the Lawyers: The Political Architecture of Justice 3. The Arusha Tribunal 4. Uncharted Waters: Judging Genocide 5. A Baptism of Fire: The Barayagwiza Affair 6. Carla Del Ponte Axed 7. Hot Pursuit: Fugitives from Justice 8. Image and Reality: Perceptions of War Crimes Justice Conclusion: The Impact of the Arusha Tribunal Notes Index ix xi 1 9 25 53 75 101 125 153 175 201 209 237</p> <p>This page intentionally left blank</p> <p>L ist of Figures</p> <p>2.1.</p> <p>The United Nations Security Council Votes to Adopt the Statute of the International Criminal Tribunal for Rwanda, November 8, 1994. Judge Laity Kama, President of the International Criminal Tribunal for Rwanda (19951999) meets UN Secretary-General Boutros Boutros-Ghali. Agwu Ukiwe Okali, UN Assistant Secretary-General and Registrar, International Criminal Tribunal for Rwanda (19972001) addressing a Press Conference at UN Headquarters in New York. Jean Paul Akayesu, the first person to be convicted for genocide by an international war crimes tribunal. Judge Laity Kama presiding over a trial at Arusha. Former Rwandan Prime Minister Jean Kambanda at his sentencing for genocide. Jean-Bosco Barayagwiza at his trial for genocide. Judge Gabrielle Kirk McDonald taking her oath of office as head of the Appeals Chamber of the ICTR. Former ICTR Chief Prosecutor Carla Del Ponte in court at the Arusha tribunal. Carla Del Ponte, Prosecutor of the International Criminal Tribunal for Rwanda, 19992003. Honorable Pierre-Richard Prosper, United States Ambassador at Large for War Crimes Issues. Prosper was the ICTR lead prosecutor in the Akayesu trial. The judges, prosecutor (far left) and registrar (far right) of the International Criminal Tribunal for Rwanda.</p> <p>31</p> <p>3.1.</p> <p>56</p> <p>3.2.</p> <p>64 77 78 85 102 109 110 126</p> <p>4.1.</p> <p>4.2. 4.3.</p> <p>5.1. 5.2.</p> <p>5.3.</p> <p>6.1.</p> <p>6.2.</p> <p>132 201</p> <p>9.1.</p> <p>This page intentionally left blank</p> <p>Acknowledgments</p> <p>uthors are debtors to the people who help them in various ways in the process of creative work. I am no exception, and owe much to a number of people. I would like to thank a number of key actors in the life and work of the International Criminal Tribunal for Rwanda over the past several years, who granted me research interviews for this book. I am grateful to Pierre-Richard Prosper, Carla Del Ponte, Agwu Ukiwe Okali, Bernard Muna, Martin Ngoga, and Catherine Cisse for taking the time to talk with me at length in various capitals, on the telephone, and by email correspondence. To Angeline Djampou, the chief librarian of the International Criminal Tribunal for Rwanda, who provided me with excellent research assistance, much of it long distance and online, I am grateful. Viola Rugege-Kamara assisted me in compiling, several years ago with ease and expertise, many of the official public documents and other materials I was to draw upon later for this book. Beatrix Heward-Mills played the crucial part of typing and preparing the manuscript. Bocar Sy, senior public affairs officer at the International Criminal Tribunal for Rwanda, kindly provided most of the photographs. My thanks to them. By far my greatest debt is to my wife Maryanne and our children. I am grateful for their understanding and support as I worked at odd hours to write this book. Without their love and support it would not be in your hands.</p> <p>A</p> <p>This page intentionally left blank</p> <p>Introduction: Political Justice</p> <p>n 2004, exactly 10 years after the Rwanda genocide, the conflict in the Sudanese province of Darfur focused minds yet again on the question of genocide even as the ghosts of Rwanda continue to haunt world politics and the international society. An estimated 200,000 black Africans have been killed in Darfur by Arab militias known as janjaweed, using civil war as a pretext. In Rwanda, 800,000 victims, mostly Tutsis and some politically moderate Hutus, were massacred in what was unquestionably genocidealthough not without some obfuscation around the G-word and attempts to clothe the slaughter as collateral damage in a civil war. The United Nations (UN) Security Council established an international war crimes tribunal,1 the International Criminal Tribunal for Rwanda (ICTR, or Arusha tribunal) at Arusha, Tanzania, to prosecute persons responsible for the genocide and other serious violations of international humanitarian law. This book is about the political and strategic factors that surround and influence the quest for international justice for Rwandathe accomplishments, hopes, and frustrations of that process in a world of politics and contending moralities. That story has three important dimensions. First, the ICTR has made an enormous impact on the development of international humanitarian law. It has the distinction of being the first international court in history to judge and punish the crime of genocide. This normative impact is part of the tribunals political dimensions. The creation of norms by war crimes tribunals is something that ultimately hasor is expected to havea political impact on how nations and individuals behave. This impact, qualified though it is, exists because the norms that are created by such institutions often progressively displace those that existed in previous eras. For example,</p> <p>I</p> <p>2</p> <p>R wanda s G enocide</p> <p>genocide has surely always been considered evil, and, to the amazement of commentators like David Scheffer, has become a growth industry.2 But international judicial intervention3 to punish itstill a rarity, lest we forgetis largely a product of the international societys evolution in the twentieth century. The concept entered the lexicon of world politics in the 1990s when the UN Security Council created the International Criminal Tribunal for the Former Yugoslavia (ICTY, or the Hague Tribunal) in 1993 in response to ethnic cleansing in the Balkans and established the Arusha tribunal in late 1994. This process has been called norm entrepreneurship,4 and like much of international law it is a political phenomenon. The task of international war crimes tribunals is political justice5the use of law and legalism to construct new political orders. This is what the Security Council was doing when it stated, in its resolution creating the ICTR, the hope that the tribunal would deter future genocides and contribute to reconciliation and the maintenance of peace. Norm creation too has another political dimension, one in which it is seen from a realist interpretation of world politics as faade legitimation,6 or the kinder, gentler face of naked power considerations in pursuit of state interests.7 The second important dimension of the story is the actual political and societal impact the Arusha tribunal has had, or is likely to have in the longer term, in Rwanda, in Africas Great Lakes Region, and in the continent as a whole. This is a basic point since, as noted a moment ago, the tribunal was created not just to achieve technical judicial outcomes, fundamental as punishing genocide undoubtedly is, but also to contribute to a hoped-for emergence of a new political order. In this light, it is necessary to look at whether the means chosen (retributive justice by an international tribunal located in a foreign country) match the desired ends of wider political and social outcomes. Thus the question of how relevant the international tribunal is to the Rwandan society and to African politics is an important one. Of course, this is a question that is validly raised about international criminal justice in other regions of the world as well. The third dimension, the most important from this books standpoint, is the latent tension between the Arusha tribunal and the Rwandan government, and the ebb and flow of relations between the two entitiesthe tribunal seeking to preserve its independence as a court of law and justice (even as it depends on Rwandas cooperation and the political and financial muscle of the great powers such as the United States and Britain), and Rwanda pursuing its own strategic interests, the tribunal being one path toward achieving those interests.</p> <p>I ntroduction</p> <p>3</p> <p>Two core components of those strategic interests are (1) the use of the judicial process of the international tribunal to put the countrys former genocidal leaders permanently out of commission and the destruction of the ideology of genocide, and, at the same time, (2) the prevention of its own forces from getting prosecuted for war crimes by the Arusha tribunal. The tribunals defendants have so far been the Hutu extremists accused of perpetrating genocide. It is no coincidence that they also happen to be the side that was defeated in the civil war. No Tutsis, members of the victorious Rwanda Patriotic Army (RPA), the erstwhile military wing of the Rwandan Patriotic Front (RPF) that now governs Rwanda, have been publicly indicted by the tribunal, much less arrested and put on trial. Is this victors justice? And if it is, who is to blamethe Arusha tribunal, or the externally imposed political framework within which it must function? In this sense, the phrase the independence of the tribunal is one that needs proper contextualization. I will come to this point in a moment. The underlying point of this book, then, is that the ICTR has notched up momentous normative achievements but is hemmed in by international politics that exists at the level of grand strategy, and the facts that its possibilities are limited by these factors, and that this situation is not unique to the tribunal. It has much to do with the fundamental nature of these institutions, a topic I explore at a wider conceptual level in Justice and High Politics.8 As such, it is often not just the defendants who are on trial at the tribunals set up to advance political justice, but the very concept of justice itself as understood by the average personthat the scales will weigh the crimes and the evidence, and the chips fall where they may. International war crimes tribunals are created by politics. They are therefore surrounded and affected by that hardy constant of international life. We see this in the problem-prone trial of Slobodan Milosevic, former president of the Federal Republic of Yugoslavia, at the ICTY at The Hague. It is evident in the controversial circumstances of the U.S.-led invasion of Iraq and the capture and imminent trial of Saddam Hussein, and in the politics of the permanent International Criminal Court. The wheels of justice nonetheless continue to turn. The Arusha tribunal is no different. Like the Hague tribunal for war crimes in the Former Yugoslavia, it was created by a political body, the Security Council, and, in UN parlance, is a subsidiary organ of the Council. Like other war crimes tribunals, its work proceeds apace in the midst of swirling political currents in the domestic society for which it has been established, and also in the</p> <p>4</p> <p>R wanda s G enocide</p> <p>wider international society. Consider the challenge that Serb nationalism has posed to justice in the Balkans, and the widespread belief amongst Serbs that they are the victims of the Hague tribunal, rather than understanding its work as an opportunity to see without blinkers, and repudiate, the crimes that were committed in their name. In a recent book about the Hague tribunal, Rachel Kerr has captured its nature with a characterization that is just as relevant to the Arusha tribunal:The question of politicization is not a straightforward one. The decision to establish the [Hague] tribunal was political, and it was established for a political purpose, but its internal mandate was to deliver justice. Thus, while politics permeated every aspect of the tribunals operations, including its establishment, proceedings had to be conducted in a political vacuum. On a conceptual level, while this form of justice is inherently political, the judicial process is not necessarily politicized. On a practical level, the interaction of politics and law was central to the tribunals ability to perform its judicial function, it did so independently of politics, which was crucial for its success as a tool for the restoration and maintenance of peace and security.9</p> <p>I had earlier made a reference to this symbiotic relationship between politics, law, and diplomacy in administering international justice for war crimes, adopting the phrase political justice to reflect its essence. Kerr has attempted a fine but perhaps ultimately academic distinction between this situation and what she calls politicization: Politicization is the manipulation of the judicial process by politics, not the manipulation of politics to serve the judicial process, or the apolitical administration of justice to serve a political goal . . . Whilst they are intertwined, law and politics are not merged: The boundary exists at the doorway of the courtroom.10 All of this is largely true. The best example is probably that of the indictment of Slobodan Milosevic after Western powers had negotiated a peace agreement with him in Dayton. But the distinction between law and politics is not quite as clear cut as the finality with which the boundary has been asserted. In adopting law for expressly political ends, a fusion takes place not necessarily in the courtroom proceedings o...</p>