quietriot

So the following entry is an essay form of an article I'm brushing up on the problem of Victor's Justice as it may be perceived in the International Criminal Tribinal for Rwanda. I hope that no one thinks that I am trying to undermine the brilliant work that the good people at the UNICTR do there. They are truly heroes. I also hope that this paper does not suggest to anyone that any of the atrocities and human rights violations that occurred through the spring/summer of 1994 were in any way justified. They were all horrific and inexcusable. The Tutsis who endured the massacre are heroes and those who died ought to be remembered. The Paper argues simply that people ought to be held accountable for their crimes against humanity, regardless of which side of a massacre they happen to be on. Please, if I still have anyone following my blog, give the paper a read and let me know your thoughts.

Victor’s Justice at the International Criminal Tribunal for Rwanda

I. Introduction: Victor’s Justice in the Twentieth Century
One of the significant criticisms of the international tribunals at Nuremburg and Tokyo following World War II was that they “were victor courts because they prosecuted the crimes of the Axis powers, but not the Allied war crimes committed during the bombing of civilian targets in Europe and Japan.” This uneven prosecution style, which tried the losers of the conflict and granted general immunity to the victors became known as “victor’s justice” and has since become a legal anathema to those who study international criminal law. The United Nations’ ad hoc tribunals of the latter part of the twentieth century were subsequently designed, in part, to avoid the problem of victor’s justice. They have nevertheless been criticized for failing to offer evenhanded justice to parties on all sides of the conflicts in the wake of which each was created. The International Criminal Tribunal for Rwanda (ICTR) has not escaped this criticism.
This brief study will seek to explain how the ICTR was designed to avoid the problem of victor’s justice, how it has nevertheless failed in that attempt to avoid victor’s justice, and why that failure has occurred. In conclusion, this study will explore the implications that this failure may have on international criminal law.
II. Avoiding Victor’s Justice: The International Criminal Tribunal for Rwanda
Before discussing the structure and goals of the ICTR, it is necessary to briefly discuss the atrocity that the ICTR was organized to address. In 1994 the months of April, May and June witnessed one of the most vicious and temporally concentrated atrocities of the twentieth century. In three short months, more than 800,000 ethnic Tutsis and moderate Hutus were killed in an organized slaughter undertaken by an interim Hutu government in Rwanda. The catalyst for the bloodshed was the assassination of the Rwandan President, Juvenal Habyarimana (a Hutu), whose plane was shot down while he was returning from a summit in Tanzania on 6 April 1994. This event started an unimaginably violent outburst of ethnic violence between the ethnic Hutus and Tutsis and their respective political organizations. Colonel Bagosora, a Hutu Rwanda Military Officer, and his associates, entered the vacuum created by Habyarimana’s death. They quickly established an interim government, taking control of the country. Within hours “military officers and administrators…dispatched soldiers to kill Tutsi and Hutu political leaders in their local areas.” At the same time soldiers and militias began to undertake the systematic killing of Tutsis. The widespread and systematic killing went on practically unopposed as the United Nations and other international powers neglected to take significant action. The killing finally ended when the Rwanda Patriotic Front (RPF), a militant Tutsi group which had been waging war against the Hutu government for years, defeated the interim government and took control of the country. The leaders of the RPF then took high level posts in the new Rwandan government. For instance, Paul Kagame, a RPF general was appointed Vice-President of the new government, and in 2000 was elected President of Rwanda.
In an attempt to make up for its shameful inaction and the removal of the majority of the its force in Rwanda in the first two weeks of the massacre, the United Nations’ Security Council established the International Criminal Tribunal for Rwanda (ICTR) on 8 November 1994 through Resolution 955. The ICTR immediately gained credibility and insulation from accusations of victor’s justice as a result of its being an instrument of the United Nations’ Security Council, rather than of a singular government authority. The Security Council lent the ICTR further legal credibility through Resolution 977 which did not establish the seat of the tribunal in Rwanda, but rather in neighboring Tanzania in the city of Arusha. By not being established in the country responsible for the 1994 atrocities, the Tribunal took on the appearance of objectivity and judicial evenhandedness.
The statutory text by which the ICTR operates was drafted to further ensure the objectivity of the Tribunal. The text gives the ICTR power to prosecute and bring to justice “persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring states between 1 January 1994 and 31 December 1994.” By design the statutory text allows the Tribunal to try not only the Hutu genocidaires, but also Tutsis and any other individuals that committed atrocities on either side of the conflict.
The ICTR, therefore, was poised to be a model of international judicial fairness. By appearing objective in its structure, location, and statute, the tribunal had the capability to offer the balanced legal decisions that the Nuremburg and Tokyo tribunals could not.
III. Prosecutorial Omissions: RPF Crimes Ignored
In the years since its establishment, the Tribunal has failed in its promise of objectivity. Despite the fact that RPF crimes have been well documented, the ICTR has tried only those criminals who were associated with the murderous Hutu regime, and have prosecuted no affiliates of the RPF whose actions would also be prosecutable under the ICTR statute. This section will identify actions, attributed to the RPF, which have not been pursued by the ICTR. These prosecutorial omissions range from the assassination of individual political figures to large-scale, organized massacres killing victims numbering in the thousands. The remainder of this section will identify seven examples of RPF crimes and the sections of the Tribunal’s statute under which they could be prosecuted. It should be noted that this list is representative, and by no means exhaustive.
All of the following crimes fall into the ICTR’s temporal jurisdiction, according to Articles 1 and 7 of the ICTR Statute, because they fall between 1 January and 31 December 1994. They fall within locality jurisdiction by virtue of their having occurred in Rwanda and the surrounding territories pursuant to Article 1 and 7 of the Statute. Article 6 of the ICTR statute extends personal jurisdiction over those whose crimes are hereafter listed by granting the tribunal power to prosecute any “person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation of a crime” as defined in the statute. Article 6(a) therefore gives the ICTR power to prosecute individuals at any point up the chain of responsibility in these crimes. Furthermore, Article 6(b) goes on to state that “the official position of any accused person, whether as head of state or government or as a responsible government official, shall not relieve such a person of criminal responsibility nor mitigate punishment.” This section deprives members of the RPF of the ability to hide behind government positions in the post-Genocide government of Rwanda, and leaves them open and subject to prosecution by the ICTR. Furthermore, these crimes have been generally deemed by various authorities to be systematic and therefore fulfill a threshold requirement of Article 3 of the ICTR Statute.
The first example of a crime for which RPF members could be prosecuted is the political assassination of Felicien Gatabazi, the Secretary General of the Parti Social Democrate —an anti-Tutsi political party. RPF operatives were reported as having bragged about the political murder. This type of political murder is prosecutable under Article 3(a) of the ICTR Statute which gives the ICTR jurisdiction to prosecute individuals who are responsible for murder when it is “committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.” Because, as it appears, Mr. Gatabazi was killed by a political organization (the RPF) for his own prominence in an opposing political organization (which was in part a result of his identity as an ethnic Hutu), the murder falls squarely within the ICTR’s power to prosecute under this article. The assassination is also prosecutable under Article 4(a) of the Statute. Article 4(a) makes any “violence to life, health and physical and mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment” pursuant to the Geneva Conventions of 1949 for the Protection of War Victims and the Additional Protocol II of 1977 prosecutable by the ICTR. Mr. Gatabazi’s murder, as a civilian war victim, would be prosecutable under this article of the statute.
A second prosecutable offence was reported to Human Rights Watch. It was reported that in a town called Rutongo, north of the Rwandan capital of Kigali, the RPF soldiers went “from house to house killing unarmed inhabitants. If the victims were all indeed Hutu, these murders could be prosecutable under ICTR Article 3(a). If the victims were not distinguished and killed for their ethnicity, the murders are nevertheless prosecutable under Article 4(a) prohibiting the murder of civilian war victims.
A third and more harrowing crime for which members of the RPF could be prosecuted is string of organized massacres (presumably of Hutus). For instance, in Gishara, on 13 April, RPF soldiers extended an invitation to the townspeople to join a hunt for hippopotamus and a feast. Once the crowd was assembled, the RPF troops fired their guns and launched grenades into the crowd. Similarly, in several communities in Kibungo Province, individuals were promised food or salt if they attended certain assemblies. Once the assemblies had convened, they were attacked by RPF soldiers. One of the most well documented of these massacres occurred in the Nyagakombe cell in the Gitarama prefecture. The soldiers assembled the locals and displaced persons who had sought refuge there and explained to them that they wanted to “talk about transporting people to Rwasubusoro in Bugesera. About an hour after killing two people in the crowd for no given reason, the soldiers opened fire upon the crown, which by then consisted of hundreds of people. As the victims fled, they were pursued and killed as they ran; some where shot, while others were killed with hammers, hoes and other blunt instruments. The soldiers were reported to have killed indiscriminately without regard to age or sex. Though an officer, by the name of Major Sam Bigabiro—who has already been convicted by a military court of a similar crime —has been implicated in the in this massacre, no one has yet been indicted regarding it by the ICTR. These mass murders of civilians are clear violations of Article 4(a) of the statute, which seeks to protect civilian victims of war. Furthermore, if the victims were primarily Hutus, these massacres could be prosecuted under Article 3(a) as murders based on ethnic or political motives.
A fourth clear violation of Article 3(a) and Article 4(a) occurred on 7 April 1994 in Kigali. Here the RPF reportedly selectively killed 121 people. The victims were primarily intellectual Hutus and their families. They were allegedly killed according to a list of targeted victims. Among the victims were Hutus who had been targeted for their political affiliation and ethnicity, such as the former prefect of Kigali, Claudien Habarushaka, the former prefect of Ruhengeri, Sylvestre Bariyanga (and his entire family), the son of former president Gregoire Kayibanda, former cabinet Minister Benoit Ntigurirwa and others. The murder of these individuals, based on their Hutu ethnicity and their political affiliation is in clear violation of Article 3(a)’s prohibition of murder motivated by ethnic, racial, national or political reasons. The murder of their families is a violation of Article 4(a)’s prohibition on the killing of civilian victims of war.
A fifth crime for which the RPF could be prosecuted occurred at the Kiziguro parish in the Kibungo province. After Hutu militias killed about 1,000 Tutsi who had sought shelter at the parish, the RPF army killed about 10,000 Hutu civilians sheltered in the parish in response. This is yet another crime prosecutable under Article 3(a) and 4(a), as the 10,000 killed Hutus were killed for their ethnicity and were war victims who ought to have been protected under Article 4(a).
A sixth crime for which the RPF could be prosecuted is the capture and eventual murder of Gloria Mukwikwi, a Hutu woman. Because she resembled a Tutsi woman, the RPF spared her from a selective massacre of Hutus in Nyanza and kept her as a future concubine for an RPF officer. She was eventually killed along with her young son. The capture of Ms. Mukwikwi and intention to use her as a concubine is prosecutable under ICTR Statute Article 4(e) which makes any “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault” prosecutable by the ICTR. Being forced to be a concubine of a captor seems to fall squarely within this category of degrading treatment, similar to enforced prostitution. Therefore, the RPF’s treatment of Ms. Mukwikwi is actionable under the ICTR Statute.
A seventh crime of the RPF for which it could be prosecuted is the summary execution of the Roman Catholic Archbishop of Kigali by RPF Forces. Three other bishops and ten priests were also killed. According to a survivor of the attack, the group of churchmen was captured and held for a few days. Eventually the guards, in whose charge they were, summarily gunned them down. The killing effectively decapitated the Catholic Church in the area. If the killings were motivated by the churchmen’s religious affiliation it is prosecutable under Article 3(a), since the Article prohibits murder of persons based on religion. If the killings were not motivated by their religious affiliation, then they are nevertheless prosecutable under Article 4(a), since the churchmen would be considered civilian victims of war.
The crimes listed above are a representation of countless crimes perpetrated by the RPF between 1 January and 31 December 1994. Through committing crimes similar to these, the RPF ultimately killed somewhere around 30,000 Hutu civilians in the course of the year.
IV. Practical Complications: How Victor’s Justice Thwarts International Idealism.
With such a significant list of offences against the ICTR’s statute, it is initially puzzling that none of these offences has been prosecuted by the ICTR. However, a close analysis of the situation reveals that there are three very practical reasons for these prosecutorial omissions which explain, though do not excuse, the failure to prosecute the RPF.
The first reason behind the ICTR’s failure to prosecute the RPF for its crimes is the fact that the idea of prosecuting the RPF was simply not a priority for the ICTR prosecutors because the killing in 1994 was so imbalanced. The killing machine of the interim Hutu government was responsible for the deaths of about 800,000 Rwandans (mostly Tutsis and moderate Hutus) while the RPF seems to be responsible for deaths of about 30,000 Hutu civilians. Some may hold the opinion that the prosecution of the RPF is a low priority compared to the prosecution of a regime responsible for the deaths of hundreds of thousands. And though this kind of relative justice makes sense, it is not in keeping with the ICTR’s Statute which made any individual, not just those who are members of or sympathetic to the deposed Hutu interim government, culpable for the crimes laid out therein.
A second reason behind the ICTR’s failure to prosecute is more nebulous, but still significant. This reason stems from the unwillingness of the ICTR to prosecute the political body that ultimately stopped the genocide with which the United Nation’s was so unwilling to interfere. Indeed, the United Nations faced international condemnation when it pulled most of its forces out of Rwanda only two weeks into the slaughter after the states in the Security Council voted to do so on 21 April 1994. And those United Nations forces which remained were constrained by a narrow and impotent mandate from the Security Council which did not allow them to engage the genocidaires. Indeed, it was only the defeat of the Hutu interim government and the seizure of the country by the RPF that finally stopped the genocide. It’s quite conceivable that the ICTR, which is an instrument of the United Nations, has been reluctant to bring any charges against the entity that put a stop to the bloodshed when the United Nations itself was unwilling to do so. Thus, it could be the United Nations’ sense of shame that has kept the ICTR from prosecuting the RPF. It could also be the fear of sending a message that those who are willing to use harsh methods to combat wide scale atrocities will be held accountable for their use of such methods.
The final, and most practical reason behind the ICTR’s failure to prosecute the RPF is the way in which the RPF personnel—who are now leading members of the Rwandan government—have used their positions in the government to disrupt investigations into RPF crimes. Such interference was apparent in 2002 when the ICTR’s then lead prosecutor Carla Del Ponte announced that she would issue indictments against members of the RPF by the end of the year. In what most view as a response to this announcement, the Rwandan government instituted travel restrictions that prevented Tutsi survivors of the genocide from traveling to the ICTR in Arusha to testify in two trials that were then ongoing. Without these witnesses the ICTR was forced to adjourn the trials for some months. Though the Rwandan government maintained that its actions were unrelated to the announced RPF indictments, it demonstrated how easily it could, by its administrative actions, bring the ICTR to its knees. Del Ponte was criticized openly by the Rwandan representative to the ICTR who attributed her desire to indict members of the RPF to her unacceptable immersion in the theory of “equal guilt.” In the end, the United Nations’ capitulated to Rwandan diplomatic pressure and dismissed Del Ponte from her post as prosecutor for the ICTR in 2003. No indictments against RPF officials were ever issued. This final reason is probably the largest obstacle to overcoming victor’s justice at the ICTR. When the victors of a conflict control a country with as much power over investigation and witness transportation as Rwanda, it is nearly impossible for a judicial institution such as the ICTR to be able to pursue any indictments to which that government is opposed.
V. Conclusion: The Victory of Victor’s Justice
Despite the fact that the ICTR was organized by an international body, in an objective location, and given a statute whereby it could prosecute evenhandedly on both sides of the 1994 conflict, the ICTR has nevertheless failed to avoid victor’s justice by not prosecuting crimes committed by the RPF. This failure is likely the result of the relative insignificance of the RPF’s crimes when compared to those of the Hutu interim government which it deposed, the unwillingness of the United Nations to prosecute the RPF for stopping the 1994 Genocide, and the ability of the members of the RPF to block prosecution through manipulation of the government posts they now hold in Rwanda.
The assertion that the ICTR has failed to avoid victor’s justice regarding the crimes committed by the RPF is by no means a suggestion that that ICTR is a general failure. The ICTR has brought to justice many of the masterminds behind the Hutu interim government’s Genocide. Furthermore, the ICTR has been fair in its dealings with those whom it has prosecuted. Indeed, the ICTR has acquitted five of the thirty-four individuals whose cases have been completed before it. The fact that the ICTR has done much to advance international criminal law and to bring genocidaires to justice cannot be refuted. The ICTR is certainly one of the most significant judicial developments of the late twentieth and early twenty-first centuries.
However, the ICTR’s failure to prosecute any RPF crimes should not be ignored nor thought to be insignificant. This failure reinforces several ideas which undermine the ideal of uniform international criminal justice. It suggests that the RPF was justified in using criminal behavior to stop the bloodshed in Rwanda, thereby reinforcing the idea that atrocities can be excused if they are simply a means to a righteous end. It suggests that the RPF secured immunity for itself by taking control of Rwanda and subsequently using that government to manipulate the ICTR in its pursuit of evenhanded justice, thereby reinforcing the idea that the political victors in conflict are truly immune from prosecution. Furthermore, by suggesting that the RPF’s crimes ought not be prosecuted because they pale in comparison to the crimes of the Hutu interim government, the ICTR’s prosecutorial failure allows for a dangerous kind of judicial relativity. It suggests that war crimes are excusable, so long as they are not as bad as the offences of more egregiously sinister regimes. Each of these suggested ideas ultimately undermines the international criminal judiciary by suggesting that the international criminal tribunals are not evenhanded—that justice is relative and can be manipulated by the victors. The pragmatic students of the law may accept this kind of victor’s justice as a necessary element of international criminal law. However, the world may ultimately be better served by the idealism that would require accountability for all crimes against humanity, regardless of their relative degree or the party by which they were perpetrated. Such idealism, if adhered to, could ultimately bring the international community closer to a world without the kinds of atrocities that have been considered in this study.

If anybody is interested in seeing the full article with the accompanying footnotes fire me an email and I'll be happy to provide you with one.

Thanks all for you time and consideration