Can an international court deliver justice?
The man at the witness table wears a gray suit, a too-blue shirt,
a checkered brown-and-yellow tie, and gold-rimmed glasses. His
face is heavyset, its mid-coffee coloring sheened with sweat.
He is the defendant in this trial. Through the floor-to-ceiling
Plexiglas that separates our long, thin public gallery from the
similarly shaped courtroom we the people can see only his back.
But his face looms large on the video monitors suspended above
decide to walk along the public gallery from left to right, the
better to observe each well-lit section of this distinctively
shaped courtroom. On the far left I see the row of blond wood
desks for the defendant or defendants, now empty. They face inward
to the right, as do the two rows of desks for the defense attorneys
that I walk past next. Then theres a pillar in the Plexiglas.
In the middle section of the courtroom is the elevated bench where
three judges sit directly facingand unnervingly close tothe
witness and us, the public. Beneath the bench a pair of black-robed
clerks hunt for documents in bulky box-files stacked three-high
on metal carts. I pace on. Another pillar and then I see, facing
in, toward the left now, two or three rows of desks for prosecuting
attorneys. Beyond them, further right still, are the walled-in
booths for the interpreters. The scene looks like a series of
dioramas in an old-fashioned museum.
In the Tanzanian city of Arusha, a
set of intriguing and tightly choreographed rituals is being enacted.
Attorneys and judges in this bland, wood-paneled space all wear
capacious robes patterned on the gowns of medieval European clerics.
For the judges, the robes are mainly black, though they have broad
red satin revers and cuffs. For the attorneys: mainly black, with
occasional dashing streaks of color. All the legal professionals
wear severe, French-style white jabots Velcroed around their necks,
and headsets for the interpretation jammed down over their hair.
Some of the headsets have tiny, curled British barristers
wigs perched on top of them. (In one of the courtrooms here, the
air is thick with quaint-sounding British courtroom locutions.)
When the judges file in or out, a clerk barks All rise; il
faut se lever, and we all do. If anyone else should enter
or leave while the judges are sitting, that person pauses and bows
gravely to the bench.
The UN Security Council established
the International Criminal Tribunal for Rwanda (ICTR) in late 1994
in the aftermath of the terrible genocide that had engulfed Rwanda
earlier that year. From early April to early July hate-crazed members
of Rwandas majority Hutu population killed about 800,000 of
the countrys one million Tutsis and about 200,000 moderate
Hutus. Millions of Hutus participated in these (typically) low-tech
killings. Though the UN had a peacekeeping force in Rwanda at the
time, the Clinton administration and its Security Council allies
worked to remove or reduce the force rather than have it intervene
in the fighting. Some survivors of the genocide describe the ICTR
as a product of Western guilt.1
Security Council Resolution 955 established
ICTR for the sole purpose of prosecuting persons responsible
for genocide and other serious violations of international humanitarian
law committed in the territory of Rwanda and Rwandan citizens responsible
for genocide and other such violations committed in the territory
of neighbouring States, between 1 January 1994 and 31 December 1994.2
The post-genocide government in Rwanda, which had a seat on the
Security Council that year, cast the only vote against Resolution
955. Rwandas rulers had been the first to call for an international
court but had strong reservations about the actual resolution, including
the move to locate the court outside of Rwanda; Rwandas distrust
of the ICTR has subsequently constrained important aspects of the
Most people in the international human
rights movement lauded the courtalong with the parallel, ad
hoc international tribunal for former Yugoslavia (ICTY)as
marking a watershed in the project of holding accountable perpetrators
of genocide, crimes against humanity, and war crimes: the most heinous
acts of the modern age.
In the nine years since Resolution
955, the initial excitement has largely eroded. The court has been
plagued by both administrative problems and political controversy.
At the end of August, the Security Council removed Carla Del Ponte,
a feisty Swiss lawyer and the courts chief prosecutor, from
her job. (She will stay on as chief prosecutor of ICTY, with which
the ICTR prosecutors position has until now always been twinned.)
In a mid-September interview she said that politics
had played a big role in her change of status. Rwanda
demanded my resignation several times. . . . Therefore,
yes, pressure from Rwanda contributed to the non-renewal of my mandate.3
To this point, anti-Tutsi génocidaires
have filled ICTRs docket. But Del Ponte had consistently pressedagainst
Rwandan government oppositionfor continuing with special
investigations of allegations that members of the Tutsi-led
group that has ruled Rwanda since mid-1994 also committed indictable
crimes during the genocide. (When I saw her in Arusha in April,
she stressed to me that we are proceeding with the special
investigations.) Now, after Gambias Hassan Jallow became
Chief Prosecutor on October 1, the special investigations
face an uncertain future.
Disagreements over special investigations
have repeatedly set back the courts pursuit of its Security
Council mandate. In 2002 the work of the three trial chambers in
Arusha was brought nearly to a standstill after the Rwandan government,
acting in coordination with well-organized groups of genocide survivors
in Kigali, persuaded most of the Rwandan witnesses who were scheduled
to testify in Arusha to request postponements. More generally, the
degree of political leverage that the Rwandan government has been
able (often, with the support of the U.S. government) to exert over
the court has caused many observers to conclude that it delivers,
at best, victors justice. Indeed, the most notable
such accusation came not from an observer but from one of the ICTRs
own judges, the Russian national Yakov Ostrovsky: Not surprisingly,
Hutu refugees see the international tribunal as a kind of trial
by victors, he told Moscow News in April 2002.
In my own interview with him a year later, he sounded a more judicious
note: I see defense has equality [with the prosecution] from
legal point of view, though perhaps not from practical point of
Victors justice may
not always be an entirely bad thing: the Nuremberg trials come to
mind in this regard. But it is not what ICTR, ICTY, or the more
recently established International Criminal Court (ICC) have promised
to deliver. Indeed, the existence of the ICCand the role that
many people see ICTR and ICTY playing in helping to establish a
body of law on which the ICC can drawmakes ICTRs shortcomings
a matter of great concern. For if indeed ICTR delivers a form of
victors justice, is plagued by maladministration, and fails
to achieve the Security Councils goal of contribut[ing]
to the process of national reconciliation in Rwandathen
what do these failings augur for the ICC?
The Citadel of Boredom
ITCRs administrative challenges and apparent failures, return
with me to Trial Chamber 2, where last April 14 Juvénal Kajelijeli
was on Day 69 of his trial on eleven counts of genocide, crimes
against humanity, and war crimesthe three crimes over which
ICTR has jurisdiction. (In this court, the same actfor example,
a murdercan be cited as falling into more than one of the
Kajelijeli served as bourgmestre
(mayor) of Rwandas Mukingo commune from 1988 through 1993,
and he was reappointed at the height of the genocide in June 1994.
He had allegedly been a founder and leader of interahamwe
militia in Mukingo. In addition, when he was bourgmestre
he exercised authority over local police and gendarmerie units.
His first ICTR trial day had been in
mid-March 2001, when he faced a bench composed of Judges Laity Kama
(Senegal), William H. Sekule (Tanzania), and Mehmet Güney (Turkey).
But Judge Kama died not long after, and Judge Güney was assigned
to the Appeals Chamber. In July 2001 Kajelijelis case started
again from scratch, with Judge Sekule now presiding, assisted by
Judges Winston C.M. Maqutu (Lesotho) and Arlette Ramaroson (Madagascar).
Those three were still on the bench when I visited last April.
On Day 69 of Kajelijelis trial,
defense lawyer Lennox Hinds of New York City is continuing his principal
examination of his client. Hinds is a distinguished, balding African
American with a whitening beard who peers down over his reading
glasses and asks his questions in English. After a pause for a relay
translation, Kajelijeli (who reportedly understands little
English) answers in his mother tongue, Kinyarwanda. Kinyarwanda,
English, and French are the three official languages of the court.
The interpreters translate Kajelijelis answers to Hinds into
both French and English.
Hinds is asking Kajelijeli about the
questioning he was subjected to back in June 1998 when he was first
apprehended in Benin, West Africa, by agents of the
ICTRpresumably, people working for the Office of the Prosecutor
(OTP). They had questioned Kajelijeli on his whereabouts on specific
days around the beginning of the genocide. Hinds asks Kajelijeli
about some changes he now seeks to make in that testimony. Suddenly,
on my earphones I hear an anguished cry from one of the interpreters:
The French is not coming through! A lengthy on-air discussion
ensues between an interpreter and Judge Sekule in which the increasingly
distraught interpreter explains that yet again, as she says, they
have problems with the relay between two sets of interpreters.
Hinds must be asked to leave a longer pause before starting
his questions! she insists.
After proceedings resume, a question
arises about two audio tapes made by the OTP people when they interrogated
Kajelijeli after his 1998 arrest. Hinds has gotten hold of these
tapes only recently and wants to enter them into the courts
record. Judge Sekule speaks at some length to the question of whether
the whole tapes or just excerpts compiled by the defense should
be played in court. The difference, we are told, would be between
hearing 15 or 20 minutes of tape and a full three hours.
Hinds reminds the court that the OTP
had originally denied in open court that the tapes even existed,
and that they only later had said, Oh sorry; yes they do
and unsealed them in The Hague. Then the prosecuting attorney (female,
African, with a British-style wig) suggests that the original
tapes from the interrogation may have been even longer than the
ones Hinds got hold of. (Someone notes that she is not the same
prosecutor who was working on this case from 1998 through 2000.
So how would she know?)
The confused discussion of how to handle
the tapes continues. Everyone is discussing the issue together,
like neighbors around a kitchen table. Even the defendant has some
suggestions. Judge Sekule has completely lost control of the courtroom.
Finally, he suggests a break.
All rise; il faut se lever.
And out the judges file.
I go back briefly to Trial Chamber
2 later in the morning, when the first tape is being played. We
hear portions of the 1998 interrogation. Kajelijeli and his questioner
are speaking in French about the events surrounding the launching
of the 1994 genocide. After that tape finishes, uncertainty remains
about the length of the second tape. So Judge Sekule orders a 95-minute
I go back in mid-afternoon. Now Hinds
is asking Kajelijeli to clarify some of the things he had said in
the 1998 oral statements. (It is clear that peoples memories
even of what happened in June 1998 are already very fuzzy. How much
more so their memories of what exactly happened in 1994? Once Hinds
and Kajelijeli get to discussing 1994, there are endless questions
about the make and color of car a certain person was driving. In
a normal criminal case those kinds of details could make or break
a witnesss credibility. But now, nine years after a series
of traumatizing events, can anyones credibility really hang
on his ability to recall such details?)
Hinds repeatedly asks his client to
spell out for the record the names of the individuals
and the geographic locations that he mentions. All the spellings
are painstakingly interpreted and reinterpreted into the courts
two other languages. To the left of Judge Sekule, Judge Maqutu is
sitting with his eyes closed, leaning slightly back. It certainly
looks as though he is asleep. (Maqutu is one of two ICTR judges
who failed in their bid to seek reelection to the bench by the UN
General Assembly in January. His term was due to expire in May,
but he was still sitting on the Kajelijeli case in late September.)
One can sympathize with Judge Maqutu.
Back in 1946, Rebecca West wrote of the Nuremberg courtroom, The
trial was then in its eleventh month, and the courtroom was a citadel
of boredom. Every person within its walk was in the grip of extreme
in the eleventh month of the Nuremberg trial everyone at least knew
they were in the home stretch: that whole trial only lasted ten
months and ten days. Here in Arusha, by contrast, two years into
the Kajelijeli trial, everyone knows we are only about halfway through
itand that Kajelijeli is only one of about 90 individuals
whom OTP wants to try. As of September 1, 2003, eight of ICTRs
indictees had completed both their primary trial in Arusha and their
appeal hearing in The Hague; four still awaited appeals; three had
been released either for lack of evidence or after being found not
guilty; and one had died in custody. Nineteen other individuals
were still, like Kajelijeli, slowly making their way through Arushas
three courtrooms. Thirty indictees were in detention with their
trials not even having started. (Some of these have been in detention,
awaiting their day in court, since 1998.) And some 25 people whom
the OTP wanted to try had not yet been detained.5
Clearly, the walls of Arushas citadel of boredom
would not be breached anytime soonthough the Security Council
has repeatedly told ICTRs leaders that it wants them to wrap
up the courts work by the end of 2008.
Some in the UNs management have
been aware of the administrative problems plaguing ICTRs work
since the very beginning. In early 2001, they introduced a time-tracking
system that requires the presiding judges and courtroom administrators
all to sign off on a daily report on how time is used in each courtroom.
The reports are posted on ICTRs website, www.ictr.org:
the report on Day 69 of the Kajelijeli trialthe day that I
visitedreveals that precisely three hours and 36 minutes
worth of work got done.
has 800-some employees, and many are interesting and committed people.
But during my nine days in Arusha observing the courts work,
I heard court employees remark several times that many other
members of the staffthough not, of course, they themselveswere
there only to ride the gravy train. Arusha, it should be noted,
is a lovely place to live: less than an hour from the base of Mount
Kilimanjaro, with lots of great game parks and mountain hiking all
around; cheap household help; lots of English spoken. Plus, inviting
UN salaries. I saw a number of staff members doing things other
than work in their offices; and on the Friday I was there everything
closed down at 2:30 p.m.
But something else was happening there
besides some appalling failures of courtroom management and lax
working habits. The OTPs basic approach to its task seemed
to be contributing massively to the courts management problems.
Prosecutors and judges at ICTR and ICTY have often told me how inspired
they feel about being able to follow and build on the Nuremberg
precedent. Although nearly everyone agrees that the Nuremberg legal
process contained many flaws, what everyone seems to admire about
Nuremberg was its ability to pull together and establish a just-about-incontestable
historical record of all the worst things the Nazis didto
the Jews, the Roma, and other subject peoples, as well as to Allied
prisoners-of-warand to tease apart some of the details of
exactly how the Nazis had been able (both technically and
politically) to carry out such acts. The designers and implementers
of Nuremberg had always placed didacticism very high among its goals.
And to good effect. Consider how much easier the job of the Holocaust
deniers would have been had the Allies not made a focused effort
to compile as many as possible of the Nazis records regarding
their war crimes and crimes against humanity, and then to lodge
huge numbers of these documents into the official record of the
The desire of ICTR judges and prosecutors
to emulate Nurembergs didactic achievement is entirely laudableespecially
because of the many genocide-deniers who continue to
challenge the conventional descriptions of what happened in Rwanda
in 1994. The didactic nature of the OTPs approach is evident
in the way it haswith the blessing of the benchdesigned
its work. Thus, the ICTR has followed the Nuremberg prosecutors
in choosing to indict small numbers of high-level representatives
of different sectors of society. As OTP attorney Simone Monasebian
told me, Our strategy was . . . to bring indictments
against the most culpable people, but also people from broad sectors
of society. The idea was, very much like Nuremberg, to make an
example of all those who carried high responsibility in society.
The materials published by ICTR routinely divide the indictees into
groups like political leaders, military leaders,
media leaders, or church leadersand
many of the trials have been designed and conducted by using these
OTPs desire to emulate Nuremberg
has frequently been frustrated by the fact that Rwandas génocidaires
never left anything comparable to the detailed trail of records
that the Nazis kept concerning the actions they took against Jews
and others. The current OTP has therefore sought to build its casesand
establish its historical recordoverwhelmingly by relying on
witness testimony. The way this has played out in the case of the
trial known as Military I has been particularly instructive.
This trial involves four notorious military leaders including Théoneste
Bagosora, who as directeur du cabinet in the Rwandan Ministry
of Defense in 1994 is widely viewed as having been one of the main
architects of the genocide. In June 1998 the OTP informed the court
that it wished to call some eight hundred witnesses for this
Remember that most of these witnesses
would have to be located, usually inside Rwanda; then taken to Kigali;
then flown by the UN to Arusha and looked after there for however
long it might take the court to schedule their appearance; and then
conveyed back home. Moreover, nearly all the witnesses called by
ICTR fear retaliation and so request protection of their identities.
In an attempt to assure identity protection, the courts Victims
and Witnesses Support Unit (VWSU) maintains two separate support
structures in Arusha: one for protected prosecution witnesses, the
other for protected defense witnesses.8
In addition, in a determined nod to the victims rights
movement, the VWSU tries to provide some basic items of humanitarian
careclothing, decent food, medical checkupsto the survivors
of violence who go to Arusha as witnesses.9
And then, keep in mind that if the prosecution calls 800 witnesses,
the judge would find it hard to deny the defense the right to call
a comparable number of witnessesor indeed, since each of the
four defendants in the Military I trial has the right to call his
own witnesses, they might call 3,200 altogether!
Faced with the OTPs request to
call 800 witnesses for this trial, the bench, not surprisingly,
demurred. In the end it persuaded the OTP to bring the number down
to 121. The trial finally began in Chamber 3 on April 2, 2002. The
accused, however, were not present: they sent word through their
lawyers that they were protesting the OTPs failure to present
some materials to them as the bench had ordered. Chief Prosecutor
Del Ponte, who had come to Arusha from The Hague for the opening
of this momentous trial, went ahead and presented the prosecutions
opening remarks anyway. The judge then adjourned the proceedings.
Soon thereafter,the OTP replaced the lead attorney on the case.
The Military I trial resumed briefly
in September 2002, but presiding judge Lloyd George Williams of
St. Kitts and Nevis almost immediately criticized the new lead prosecutor.
In May 2003 Judge Williams declared that he was withdrawing from
the trial for personal reasons. (He was not the only
judge to withdraw from the case. Fourteen months earlier, Judge
Ostrovsky had resigned from it.) In early June ICTR President (Chief
Justice) Erik Møse of Norway announced that he would be taking
the trial to his own courtroom, Chamber 1, and hearing it there
with two recently elected judges. Møse was able to win the
agreement of the four defendants to the plan of continuing the trial
where it had been interrupted rather than starting de novo,
and on June 16 called Prosecution Witness (PW) number 3. In a fairly
successful feat of courtroom management, Møse held 18 more
days of hearings over the month that followed and heard from PW-3
and eight more witnesses. These trial days averaged around six hours.
By July 18, Day 51 of the trial, the OTP had completed its presentation
of 11 of its proposed 121 witnesses. (It had also asked to be allowed
to introduce an additional half-dozen witnesses.)
Court time, and all the associated out-of-courtroom
work by attorneys and others, is expensive. The OTP has its own
sizable cadre of Arusha-based attorneys, who are compensated as
fairly high-level UN staff. Because the defendants have all claimed
indigency, their attorneys fees are all also paid by the UN.
A lead defense counsel receives $220 per hour and a co-counsel $80
per hour; they can be remunerated for up to 175 hours per month.
Defense attorneys receive an additional $100 per day for time they
spend outside their home countries. They receive reimbursement only
for coach-class travel to and from Arusha. (OTP attorneys have their
way paid in business class for authorized travel.) One defense attorney,
a high-ranking barrister back home in England, wrote to me, For
many advocates at the Tribunal, I understand the rates of pay compare
very favorably with the remuneration they would receive in their
home countries . . . though as far as I am concerned,
I could earn significantly more in England.
These very favorable salaries
have, quite understandably, come with their own temptations. At
the end of the 1990s, in response to persistent reports that defense
attorneys at ICTY had been splitting their fees with
clients in order to obtain and keep their lucrative representation
arrangementsand suspicions that the same thing may have been
happening at ICTRthe UNs Office of Internal Oversight
Services (OIOS) launched an investigation. They found that several
former defense counsels at both courts had either been solicited
and/or have accepted requests for fee-splitting arrangements;
some defense teams at ICTR had made arrangements for gifts
to their clients, their clients relatives and other forms
of indirect support and maintenance; and some defense teams
at both courts had, hired friends or relatives of their clients
as defense investigators. OIOS also found that the issue of
fee-splitting was linked to other matters such as, problems
in verifying claims for indigence submitted by the suspect/accused;
. . . the fees paid to defense teams; and the use of frivolous
motions and other delaying tactics before the Trial Chambers.10
(OIOS was in a position only to recommend, not to mandate, corrective
actions that the courts should take. In a follow-up report of February
2002, it stated that both Tribunals have implemented most
of the recommendations but noted some areas of continuing
the broader context of defense counsels hiring of clients
friends as investigators, the registrar terminated the employment
of two defense investigators who were themselves credibly accused
of having participated in the genocide. One of these, Joseph Nzabirinda,
was indicted by the court.)
And so the courts costs have continued
to add up, day after mind-numbing day. In late fall 2002 the UN
General Assemblys Fifth Committee, which administers the organizations
budget, approved an allocation for ICTR for the biennium 20022003
that totaled $256.9 million. (By comparison, $322 million was given
in foreign aid in 2000 to Rwandas 7.6 million people. Many
extremely needy countries in Africa receive considerably less foreign
aid than that.)
tribunal has certain achievements that cant be denied,
Judge Ostrovsky told me in April 2003 in his wood-paneled office
in the ICTR building. Some people say, howeverand that
includes methat these results have been very modest.
Ostrovskya craggy older man with the courteous mien of the
diplomat he had been in first the Soviet, then the Russian, Foreign
Ministrywas not entirely negative about the court; but he
certainly was impatient. At 76, he had not stood for reelection
when the UN General Assembly elected judges to new ICTR terms back
in January, so his term would be expiring at the end of May, and
in April he was wrapping up his last involvements in Arusha.
He said he saw many reasons for continuing
to try to accelerate the courts work. It has already
been eight years. It becomes hard to rememberand we are totally
reliant on witnesses, since we dont have documents. Memories
are hard to access! . . . Everything becomes very difficult
eight or nine years after the events. One has to establish the credibility
of the evidence; and the credibility of witnesses always depends
on their disinterestedness. From this point of view, it is not easy
to find them credible. He had observed earlier that as
a rule, all prosecution witnesses are Tutsis who come from Rwanda,
while all defense witnesses are Hutus who had left Rwanda.
He recalled that Article 19 of ICTRs
founding statute mandated expeditious trials, and he
said, If a person committed a crime, we dont need to
hear one hundred witnesses! You know, the French have a saying,
Qui preuve trop, ne preuve rien. [He who proves
too much ends up proving nothing.] That is quite relevant here.
He ascribed a lot of blame for the delays in the courts work
to the OTP. You see, the prosecutors wanted to have joint
trials here, as in Nuremberg. We judges were quite ready to go ahead
with individual trials, but the OTP delayed because they wanted
to pull together these large joint trials. But now, everyone needs
to hurry! He also complained about the sheer length and heavy
reliance on historical detail that the OTP brought to its writing
Ostrovsky notably did not show the
same degree of understanding he had expressed to Moscow
News a year earlier for the view of many Hutus that ICTR was
providing only victors justice. He told me that
he did recognize the practical advantages of the OTP:
<10.000000>But there is never equality between
prosecution and defense in any system! For example, the prosecution
is always a continuing body, with its own means of keeping long-term
records. . . . Here, I know the OTP is more numerous
than the group of defense attorneys. It has a big office inside
Rwanda. It has contacts with the Government of Rwanda, and so
<7.000000>But the defense has every opportunity <-2.000000>to
prove innocence. The judges dont need to take the practical
disadvantage [of the defense] into account because after all
its the OTPs job to <-2.000000>prove-2.000000><-2.000000>
guilt. . . . We have good procedural protections for
the defense. And then, the OTP has to prove its case beyond
a reasonable doubt.
One of the most outstanding achievements
of our tribunal and ICTY, Ostrovsky said, is that for
the first time we got the punishing of the crime of genocide.12
Also, these tribunals prepared the ground for the ICC. . . .
It is really a pity that states like Russia, China, and the U.S.
are not members of the ICC because then it looks as if the
big countries of the world are above the law. But he also
warned that the ICC might face the same chronic administrative and
political problems that have plagued ICTR.
Judge Møse was even more insistent
than Ostrovsky that ICTR was enacting judicial procedures of a decent
quality. On process, this courts work looks fair to
me. Both sides contest this, but thats not abnormal. Our weak
point, however, is time. Its difficult to explain to those
who are not following us closely how complex, and therefore time-consuming,
some of the proceedings are.
When we talked, the wiry, intellectually
passionate Møse was still vice-president of the court. The
president at that point, South African Judge Navanethem Pillay,
was soon to leave ICTR to become one of the first judges on the
ICC. In late May Møse was elected by his fellow ICTR judges
to succeed her. Before he came to ICTR in 1999, he worked as an
appeals court judge in Oslo and a barrister at the groundbreaking
European Court for Human Rights and taught human rights law in Norway
and the UK.
Møse stressed that he did not see
the number of witnesses being called in ICTRs cases as excessive,
since they supplement and bolster each other. The problem
here is that the prosecution and defense witnesses often tell two
completely different stories. This is different from what you hear
in disputes in national jurisdictions. So you need to hear a lot
of them in order to reach a judgment. He said he thought it
should be possible to hear cases involving a single accused in
about 25 through 40 trial days, whereas he saw trials involving
multiple accused as very complex and time-consuming. But he also
mentioned some of the factors that contribute to frequent interruptions:
The defense needs time after hearing the prosecution case
to prepare its reponse; witnesses fall sick; witnesses are delayed
or prevented from coming to Arusha; documents need to be translated;
witnesses need to be brought from other countries and protected;
the defense counsel needs to go home because the time they have
scheduled to be here has expired . . .
Resolution 955 instructed the ICTR to
contribute to the process of national reconciliation
inside Rwanda, and I asked Møse whether he thought the ICTR
was carrying out that part of the mandate. He suggested that one
need not adopt an either/or approach to the issue of
judicial and nonjudicial mechanisms to accomplish this task and
noted that the circumstances of each country are different. He cited
Sierra Leone as an interesting case where the international community
was trying to support the establishment of two parallel institutionsa
criminal court and a truth-establishing commission. And inside Rwanda,
the government was working with two different types of institutions
in its approach to dealing with the scores of thousands of suspected
génocidaires. The criminal-court system is used for
persons suspected of being high-level organizers or ringleaders.
A special new mechanism called the gacaca [ga-cha-cha]
court systema version of an indigenous truth-establishment
mechanism called gacacahas been modified to handle
lower-level genocide suspects and brought under supervision of the
countrys high court.13
In early October the government announced that the full-scale trial
phase of the countrys 10,000 gacaca courts would
start in February 2004.14
Møse described ICTR as a third
prong in the policy of reconciliation, but he thought that
it had limited effect because of its location outside Rwanda. He
said that all the courts judgments are videotaped and sent
to Rwanda to be broadcast with a simultaneous translation into Kinyarwanda;
but he noted, too, that lengthy intervals often pass between the
judgments. Our ability to contribute to reconciliation inside
Rwanda would presuppose that what we say is received inside Rwanda,
he said. A complicating factor has been that in periods the
Rwandan government has had problems with the court.
Møse stressed that he thought the
fulfillment of the peace and reconciliation part of the Security
Councils mandate mainly needs to be done by the society
itself. An international tribunal can play a role, but only a subsidiary
role. If the population can see that there is an institution that
delivers fair justice within a reasonable time, then it can make
a certain contribution. The final assessment will have to be done
when the ICTR has finished its work. Meanwhile, though, he
felt that ICTRs main achievement had been that it maintains
the [Rwandan] conflict on the map of the world conscience.
That assertion may or may not be correct.
Since 1994 atrocity has been heaped upon atrocity in the consciousness
of the world: Sierra Leone, the Democratic Republic of Congo, the
Marsh Arabs in Iraq, Chechnya, Liberia, etc. It is hard to judge
whether, amidst all this atrocity, the terrible happenings in Rwanda
would have been forgotten had ICTR not existed. I suspect not. But
what is clear is that the hope expressed in Resolution 955that
the ICTRs establishment would have a broad deterrent effect,
that it would contribute to ensuring that such violations
are halted and effectively redressedhas not been fulfilled.15
1990s the successive creations of ICTY, ICTR, and the ICC captured
the imagination of human rights activists worldwide. Finally, so
many decades after the UNs 1948 adoption of the Universal
Declaration on Human Rights, and of the Genocide Convention, these
new courts could hold accountable rights violators who until then
had been able to hide behind the shield of national sovereignty
or other forms of impunity. A number of attorneys, organizers, and
activists who were filled with pro-international court idealism
found their way into jobs in the new courts. Judge Møse was
one of those. And two of the trial attorneys with whom I had the
lengthiest conversations had also come to the court filled with
idealistic motives. But their experience at ICTR had been sobering.
Diana Ellis is a British attorney who
is a senior barrister in the criminal-courts division and also sometimes
runs her own courtroom as a judicial magistratea kind of supplementary
judge. In London she works in the same barristers chambers
as Steven Kay, one of three lawyers appointed by an ICTY bench in
The Hague to be amici curiae in Slobodan Milosevics
lengthy trial there.16
I had never done anything like this before, she told
me, referring to her experience at ICTR. I was fascinated
by the prospects of international justice, and by the magnitude
of the crimes. Plus, I felt I could contribute to the development
of the idea of international justice.
Ellis came to Arusha to serve as co-counsel
to Jean-Marie Biju-Duval, the French lawyer who was lead counsel
for Ferdinand Nahimana, the former head of Radio Télévision
Libre des Milles Collines, a broadcasting institution that did much
to stir up anti-Tutsi feelings before and during the genocide. Nahimana
was in a joint trial with two other leaders of the genocide-era
media. When I went to observe the Media trial on April
9, I saw Ellis standing up a number of times to sharply voice objections
to actions or lines of questioning being pursued by the lead prosecution
lawyer, Simone Monasebian. Ellis later explained to me that lawyers
in the French-style civil law tradition are much less familiar with
the adversarial style of Anglo-American-type courtrooms, so Biju-Duval
often relied on her to voice objections.
The Media trial had been running since
October 2000. (I observed Days 228 and 229 of its proceedings.)
In her time at ICTR Ellis said she had found a great deal
of incompetence. It is appalling! In a courtroom you have to have
the maximum speed of proceedings that is consistent with fairness.
The proceedings here should be much sharper and more precise! They
should make it defendant-focused. People need to understand that
one good witness is better than 20 poor witnesses.
She said, I find these tribunals
are a way to no reconciliation. . . . The court
was set up for Rwanda, and the Rwandan government controls
it. It controls the evidence now. It controlled the evidence that
was handed over to the FBI in 1994. Here, you only get their side.
She said that when the defense goes to Rwanda to conduct investigations
that Rwanda is supposed to allow under Article 28 of the courts
founding statute, We get no cooperation, no access.
Ellis, like many other close observers
of the court, judged that the Rwandan government received significant
backing from the Bush administration in many of its policies toward
the court. She recalled looking at some relevant documents with
a U.S. State Department stamp on them. She could not introduce them
as evidence without being able to prove provenance. So last
May, I went to DC to follow up, to try to get hold of official copies
from there. They all denied having any information.She said
Allison Des Forges, a well-known U.S. expert on Rwanda who has served
as an expert witness for the OTP in a number of cases, told her
that chief prosecutor Carla Del Ponte had successfully pressed the
United States for access to 28,000 pages of microfiched
information held by the government. I then filed a motion
with Judge Pillay protesting that we were not given equal access.
Pillay called Pierre Prosper who promised to send it all to us.
But he did not. (Pierre-Richard Prosper, a Haitian-American
who heads the State Departments Office of War Crimes Issues,
used to work for Del Ponte in the OTP. He was the lead attorney
on the Akayesu case.)
Ellis said she had invoked Article
28 of the ICTR (States shall cooperate with the International
Tribunal for Rwanda in the investigation and prosecution of persons
accused . . .) in lodging requests for relevant
information with Germany and a number of other governments, with
complete satisfaction. But I have gotten nothing from Rwanda
under Article 28, while the prosecutor gets whatever she wants.
. . . So its very one-sided. Everyone knows that
if Rwanda withdraws its cooperation, the tribunal would collapse.
She also voiced blistering criticisms
of some of the judges, though she did not name them. They
are often totally unqualified, because they are named by national
governments. A judge needs to know what he or she is doing, and
to control the courtroom.
In Elliss view, the ICTR is delivering
only victors justice, and that makes it incapable
of contributing to reconciliation inside Rwanda. Undoubtedly
there were massacres committed by both sides, she said. She
accused both the U.S. government and her own of having supported
and covered up for Rwandas now-ruling party, the Rwandan Popular
Front (RPF). She argued that What happened in Germany [under
the Nazis] was different from what happened in Rwanda because in
Germany there was a clear aggression against innocent populations
but in Rwanda what happened really was a war.
She said her experience in Arusha had
made her very pessimistic about the prospects for the
ICC. Now we have the same incompetents who have been working
here going to the ICC, she said.
* * *
That a defense attorney in a court system
where the prosecutor sometimes seems to play a larger-than-life
role might have some qualms about the systems fairness is
perhaps not surprising. What surprised me more was to find a prosecutor
from the OTP who raised doubts about the courts overall value
and effectiveness. I had seen Simone Monasebian strutting her trial
lawyers stuff as the lead prosecutor in the Media trial. A
tall, no-nonsense woman, Monasebian would impatiently brush a wisp
of hair off her cheek as she presented some complex, lengthy proposition
to defense witness Valérie Bemeriki and then swoop in with
a challenge of What say you, Mme. Bemeriki?
When she came to meet me in an ill-furnished
interview room in the OTP quarters, Monasebian looked tired. I
had always been a defense attorney, back home in the U.S.,
she said. I certainly didnt want to be a prosecutor
there with the death penalty and the terrible conditions in the
jails. I hoped the protections here, for the defendants, would be
sufficient to allow me to be a prosecutor in this system. . . .
The main problem here is the length of time people are detained
before they get into court.
She explained the OTPs strategy
of selectively prosecuting leaders from different sectors of society
and justified this generally didactic approach as a way of fostering
peace and reconciliation. In our case, Nahimana and [codefendant
Jean-Bosco] Barayagwiza both had official roles in the Rwandan media
establishment of the time. . . . They were indicted by
virtue of their civilian roles as inciters. We think thatunlike
Julius Streicher, who was the main Nazi propagandist tried at Nurembergwe
generally chose our media indictees pretty well. Later, she
said, establishing the historical record is very important.
Its important not just for the Rwandese, but for all humanity.
She reported that in the Media case
the OTP had called 47 witnesses, and the defense a similar number.
(When I was in Arusha, the Media case had nearly been completed.
It only lasted for another ten or eleven trial days. But such was
the difficulty of scheduling them that it only concluded at the
end of August.)
In Monasebians view, the inefficiencies
of ICTR and ICTY are a reason to have a permanent ICC,
not a reason not to have one. Setting up an ad hoc tribunal
like this one is definitely not the way to go. Still, she
did not seem wedded to the idea that Western-style criminal prosecutions
are always the best route in such circumstances. When I asked if
she would seek to work at the ICC once she finished at ICTR she
said she doubted it. I am rather thinking of going to Rwanda
to see if I can work with their gacaca system, which seems
very interesting to me.
Rwandans Judging the Court
at the end of the day, should judge the work of ICTR and its sister
court for former Yugoslavia, and what criteria should be used? The
ICTRs annual reports to the UN focus on procedural issues
rather than any more substantive achievements. For example, in the
17-page report she submitted on July 2, 2002, ICTRs then-president
Navanethem Pillay wrote, The proceedings may be perceived
to be slow, but the judges have to be thorough and scrupulous. . . .
The jurisprudence established by the Tribunal has received significant
endorsement from academics, representatives of member States and
organs of civil society, and constitutes a reliable body of precedents
for the International Criminal Court.17
That report does not refer to any other extrinsic achievements such
as: the courts success (or otherwise) in deterring the commission
of atrocious crimes worldwide; the contribution it may have made
to curbing the ability of the génocidaires to regroup;
or its effect on fostering reconciliation inside Rwanda. The idea
that then-president Pillay was claiming endorsements from unidentified
academics before anyone else suggests something about
her intended audience. The report notably did not seem to be written
with the aim of assessing the effect of the courts work on
people living in Rwanda or other societies afflicted with atrocious
A comparison with the intention and
effects of the Nuremberg Trial is again instructive. The U.S. War
Departmentthe main body that designed and supervised Nurembergwas
always intent (as noted above) that the court should have a didactic
effect on the Germans, and the U.S. occupying forces undertook sustained
campaigns of public outreach in pursuit of that goal.
Many historians working in Germany today have judged that that educative
effort had little immediate effect on popular attitudes. In 194546,
they say, Germans were still living in a physically, economically,
and politically shattered society. Most Germans were not in a mood
to learn a salutary moral lesson from their foreign
occupiers. Only much later, with the German miracle
at the economic level and a recovery of a sense of security and
self-confidence, were most Germans able or motivated to learn from
their countrys Nazi past. But once they started to do so,
the whole huge record of the Nuremberg trial and its successors
provided a centrally important database on which they could draw.
Thus it came about that, as historian Konrad Jarausch said in a
2002 interview, public memory in Germany now is the memory
of the victims, rather than the memory of the perpetrators. That
is breathtaking. I know of no other international example where
that has happened. . . . If you ask the young people now
who they associate with, it is people in the camps. It is people
who are survivors. It is not their grandparents or their great-grandparents
who did these things.18
Jarausch stressed, however, that this process of what he termed
a transformation of memories did not happen overnight
in Germany. It took 40 or 50 years.
We probably should not expect any speedy
transformation of memories in other cases as atrocious
and complex as that of the Holocaust, including in Rwanda. Nevertheless,
Jarauschs focus on the effects of the post-atrocity courts
work on the community from which the perpetrators (and condoners)
sprang is helpful. In a parallel Rwandan context, we might be
asking if ICTR has laid an effective basis for helping present or
future generations of Rwandan Hutus repudiate the actions
of the génocidaires and empathize with their victims.
We should, certainly, be prepared to
wait many years before we can hope to answer this question. And
the answer will inevitably be affected by a number of other, quite
independent factors, including the ability of the great mass of
Rwandan Hutus (and Tutsis) to rebuild a stable and thriving society.
But the answer will also be affected by the degree to which Rwandan
Hutus judge the ICTR: has its work been balanced, judicious, and
fair? Here the issue of the special counter-RPF investigations
can play a crucial role. Numerous reputable observers, including
human rights monitors, have reported that RPF officers committed
excesses that clearly seemed to be either crimes against humanity
or war crimes. If ICTR fails to bring indictments against any of
those suspects and test the allegations in open court, then its
fairness will inevitably be open to question. The accusation of
victors justice would be hard to lay to rest.
(Yes, Nuremberg was also victors justice. But it was unabashedly
so, since it had in fact been established by the victors in World
War II. ICTR was set up by the UN and aspires to a more universal
perspective, so it is more likely to be judged by that criterion.)
How do Rwandas Hutus and Tutsis
view the work of ICTR? Most of the Rwandans I have interviewed until
nowinside and outside their countryhave probably been
Tutsis. But while I was in Arusha I talked a while with D.T., who
works on one of the defense teams and is probably a Hutu. (He talked
a little about the difficulty of getting defense witnesses to come
to Arusha, but said that a small number had done so.) D.T. noted
that his client had been in detention for eight years, and the OTP
still had 70 witnesses to call in his case, which was one of the
larger group trials. Here, they never give bail, he
noted. He said his client has not seen his wife and children for
D.T. seemed careful not to criticize
the process at ICTR too sharply; but he noted that theres
a lot of pressure put on the judges here by the Rwandan government.
Asked about the impact of the tribunal
on intergroup relations inside Rwanda, he said, Its
very small. People there dont know much at all about the tribunal
and its achievements. In his view, the gacaca process
held much more hope than ICTR of healing the countrys intergroup
rifts. In principle, I support gacaca, he said.
But even that seems limited to looking at crimes committed
by one side only. If they built it fairly, to judge both sides,
that would really help reconciliation.
Martin Ngoga is a Rwandan diplomat who
maintains an office near the courts headquarters in Arusha.
Ngoga told me that his government still had some problems with the
court (this was last April); but he said relations seemed to be
getting better. He was hopeful that U.S. Office of War Crimes chief,
Ambassador Prosper, could help iron out the remaining difficulties.
The issue that Ngoga identified as
most troubling for his government was the way that, in his view,
ICTR continued to mistreat prosecution witnesses. They promise
them security. But what is security? The woman whos
been a victim of rape needs much more than physical security. She
especially needs HIV treatment, and counseling. Witnesses have been
dying from lack of HIV treatment! . . . We have cases
that will last another five years, and the witnesses are actually
dying. . . . We also have cases of witnesses being threatened
and killed after testifying. (I asked for more details, but
he provided none and seemed to backtrack a little.)
Ngoga accused the court of showing great
insensitivity in its choice of defense witnesses and investigators
for the defense attorneys. There is still a problem of genocide
suspects being on the payroll of the court. . . . In the
past, two former employees were arrested by ICTR itself, two by
the Tanzanian government, and three others were sacked and put under
investigation. . . . The registrar will tell you that
these people were not employees. But ICTR pays the budget for all
defense teams. Rwandans find the process ridiculous. Ngoga
alsolike several of the Rwandan officials and genocide survivors
I interviewed inside Rwanda in 2002derided ICTR as being mainly
a job creation program for foreigners. He noted that
recently the OTP had announced it would call 100 witnesses for one
of its cases. That doesnt make it a better case than
if you had five or 15 witnesses, he said. I certainly
dont rule out the motive of financial gain in this whole business
of time delayespecially for the defense attorneys, since they
get paid by the hour. . . . The judges need to learn,
and to have rules to limit the number of witnesses.
I asked Ngoga, too, how he assessed
the courts contribution to fostering reconciliation inside
his country. We had originally requested the tribunal, but
we were the only ones on the Security Council who voted against
it, he recalled. Why? Because we didnt get what
we thought was needed in the statute. We needed an international
court, in order to get hold of the exiled perpetrators. But we needed
it to be established inside Rwanda, so it could contribute
to peace and reconciliation. The concerns we expressed then have
now been vindicated.
Elsewhere in Arusha I met a thoughtful
and apparently well-connected Rwandan business executive, B.V.,
whose business takes him throughout East and Central Africa. He
told me that his fatheralong with many other relativeshad
been killed in his home village toward the end of the genocide.
I had been to the village just three months before the genocide,
for a wedding, B.V. told me. We were very hospitably
received by our Hutu neighbors there. They were good people. Also,
when I went back to the village, after the genocide, the same thing.
But in the meantime they had participated in the genocidein
the looting that was connected with it, at least. When I went there
afterwards, I saw some of my familys goods in their houses,
and when I mentioned that, the Hutus gave them back to me!
B.V., whose father had been a Protestant
missionary, has given much thought to what it was that had caused
his good Hutu neighbors to participate in the genocide.
He believed the frenzy of violence was the result of two factors,
manipulative politicians and mass psychology, with the former making
use of the latter. In his view, the street-level perpetrators were
also in some sense victims.
B.V. saw ICTR as far removed from
the real, concrete needs of the people in Rwanda. We have women
survivors of the genocide who come here and theyre still
bleeding, he said. But no one gives them anything.
Whose interest is it that ICTR
serves? he asked. If they just took one years
worth of the budget from there and put it into social programs inside
Rwandaeven if they freed all the detainees from here!it
would still be much more helpful than what theyre doing here.
He told me he saw gacaca as filling the needs of Rwandas
people much more than ICTR. But he said that even the gacaca
process would not alone be enough. We also need to have a
big process of continuing education and reeducation, in order to
build peace and reconciliation.
There was, however, one moment in all
the years of ICTRs work that gave B.V. and his friends some
real satisfaction. This came in 1998 when Omar Serushago, who had
pleaded guilty to one count of genocide and three of crimes against
humanity, made a confession in open court.19
B.V. had seen Serushagos statement on television, and he remembered
it clearly even five years after the event: Serushago cried.
He pleaded for forgiveness. He showed remorse, he said. (In
Arusha, the court was also moved by Serushagos statement,
and despite the severity of the crimes he had confessed to it gave
him a sentence of only 15 years.)
Rwandese liked to see the way
Serushago acted, B.V. told me. He contrasted Serushagos
behaviorand the popular reaction to itwith that of the
most prominent suspect to plead guilty at ICTR, Jean Kambanda, who
was Rwandas genocide-era prime minister. Kambanda pleaded
guilty to counts of genocide and crimes against humanity. But in
his pre-sentencing hearingalso in 1998he notably failed
to express any remorse.20
Kambanda just admitted he had committed the crimes, and thought
that was enough, B.V. said. And he didnt even
understand why, after he had done that, he got a life sentence.
Remorse: this is a sentiment that is
taken into little account in the proceedings of modern, Western-style
courts whose proceedings are directed far more at examining the
facts of the cases before them than at the complex web of
emotions around those facts. But after any occurrence of large-scale
atrocious violence like that which struck Rwanda in 1994, the credible
expression of remorse by former perpetratorsand perhaps, beyond
that, its enactment in the form of reparative actionscan play
an essential educative role and help to build a strong basis for
long-term reconciliation. (In South Africa, psychologist Pumla Gobodo-Madikizela
has reported on her extensive conversations with survivors of apartheid-era
violence. She quotes one Black South African woman whose husband
was killed by apartheids security police as saying, Victims
are looking for signs . . . and when they see those signs,
they are ready to forgive. From her discussions with this
woman and many other survivors of apartheid violence, Gobodo-Madikizela
concludes that the most crucial sign is an expression of remorse.21)
So, after ICTRs investment of
more than half a billion dollars and the creation of hundreds of
thousands of pages of court records, we were left in the view of
one thoughtful Rwandan observer with this significant achievement:
a single, credible expression of remorse from a significant, self-confessed
génocidaire. One cannot help wondering if more such
expressions of remorse could have been obtained for far less money
using different means. And that is, indeed, one of the results the
Rwandans themselves have been starting to achieveat a per-capita
cost that is exponentially smaller than those of the ICTRthrough
their continued pursuit of gacaca. <
Helena Cobban is global affairs
columnist for the Christian Science Monitor and Al-Hayat
(London) and a member of the Middle East advisory committee of Human
For more information on the circumstances around the creation of
the court see Helena Cobban, The
Legacies of Collective Violence: The Rwandan Genocide and the Limits
of Law, Boston Review, April/May 2002 . For more
on U.S. decision-making during the genocide see Samantha Power,
A Problem from Hell : America and the Age of Genocide
2 UN Security Council
Resolution 955, 8 November 1994, UN document S/RES/955 .
3 Interview with
Carla Del Ponte: If I had the choice I would have remained
Prosecutor of the ICTR, Hirondelle Press Agency, Arusha,
15 September 2003.
4 Rebecca West, Greenhouse
with Cyclamens I, in A Train of Powder: Six Reports on
the Problem of Guilt and Punishment in our Time (Chicago: Ivan
R. Dee, 1955), 3. Fifteen days after Sir Geoffrey Lawrence closed
that courts last session on October 1, 1946, ten of the original
22 indictees had been hanged as per sentence passed, seven had been
sent to their places of incarceration, and three had been released
after being found not guilty. Hermann Göring cheated the hangman
by killing himself the night before the executions.
5 All these figures
except the last are from www.
ictr.org/ENGLISH/factsheets/detainee.htm, accessed September
29, 2003. The last figure is from details Carla Del Ponte had given
about the OTPs plans for future arrests and indictments.
6 Such wholesale lodging
of unexamined documents into the court record was a serious infringement
of the defendants due-process rights and is not allowed in
the present generation of courts. Note, too, that a significant
third type of crime in addition to war crimes and the then newly-minted
category of crimes against humanity was also tried at
Nuremberg but is not on the docket of the present courts: crimes
against the peace. The Rome Statute for the ICC has a provision
for trying crimes of aggression, which would presumably
be similar to crimes against the peacebut the
ICC cannot try these types of crime until after this category
of crimes has been defined. This has not yet happened.
7 The court decided
to try Kajelijeli individually rather than as part of the government
case because there were fewer charges against him than against the
others, so the judges thought his trial could be conducted more
quickly than the group trial.
8 David Chappell, who
runs the support services unit for prosecution witnesses, told me
that this is not the case at ICTY in The Hague. ICTY, he said, runs
a single witness support unit for witnesses of all three of the
relevant ethnic groups. But in Rwanda the polarities, sensitivities,
and fears are, it seems, that much more intense.
9 A number of these
witnesses are women who were infected with HIV/AIDS during genocide-related
rapes. ICTR does not offer them anti-retroviral treatment, though
it reportedly does offer this to the suspects in its Detention Unit.
10 UN Office of Internal
Oversight Services, Report of the Office of Internal Oversight
Services on the Investigation into Possible Fee-splitting Arrangements
. . . at ICTR and ICTY, 1 February 2001 (UN document
A/55/759): 2, 3. Of course, one persons frivolous motion
may be anothers essential due-process protection.
11 See OIOS report
of 26 February 2002 (UN document A/56/836). In June 2001 the ICTR
Registrar issued a public statement describing actions he had taken
in response to OIOSs recommendations (see www.ictr.org/ENGLISH/PRESSREL/2001/9-3-02.htm.)
Neither the recommendations nor the registrars actions involved
any sanctions for past fraud or mismanagement. They merely dealt
with the introduction of new oversight procedures.
12 In a decision
of September 2, 1998, judges in ICTR Chamber 1 found Jean-Paul Akayesu,
former bourgmestre of taba commune, guilty on one count of
genocide and one of incitement to commit genocide. This bench also
found him guilty of rape as a crime against humanity.
Akayesu received a sentence of life imprisonment, which would be
served in a UN-approved prison in Mali.
13 For more information
about the gacaca courts, see Helena Cobban, The Legacies
of Collective Violence.
Start of Trial Phase in Gacaca Courts Delayed Again,
Hirondelle News Agency, 6 October 2003. Accessible at:
It could also be noted that however laudable the essentially didactic
goal expressed by Møse may be, it was nowhere explicitly
mentioned among the goals assigned to the court in Resolution
16 Milosevic has
been determined to represent himself in the court. The role given
the amici curiae has been to assist the Trial Chamber
by . . . making any submissions or objections to evidence
properly open to the accused during the trial proceedings and cross-examining
witnesses as appropriate; drawing to the attention of the Trial
Chamber any exculpatory or mitigating evidence, etc. Information
Annual Report of the International Criminal Tribunal for . . .
Rwanda . . . for the Period from 1 July 2001 to 30 June
2002 (UN document A/57/163S/2002/733): 6. The
report for 2003 is not easily accessible.
18 Interview with
Konrad Jarausch by Sarah McKim for the Project on Violence and its
Legacies (VAIL project), Potsdam, 28 May 2002. For information on
the VAIL project, see www.people.virginia.edu/~hc3z/vail.html.
19 Serushago was
one of only two or three of the courts indictees who belong
to Rwandas minority Muslim population. The rest were (at least
nominally) Christiansand four, including an Anglican bishop,
were men of the cloth.
20 This fact was
also duly noted by the court. See paragraph 51 of the official record
of his pre-sentencing hearing, at www.ictr.org/ENGLISH/cases/Kambanda/judgement/kambanda.html.
21 Pumla Gobodo-Madikizela,
A Human Being Died That Night: A South African Story of Forgiveness
(Houghton Mifflin, 2003), 9798. Gobodo-Madikizela was
a member of the Human Rights Committee of South Africas
Truth and Reconciliation Commission.
Originally published in the December
2003/January 2004 issue of Boston Review