International Criminal Tribunal For Rwanda: Delayed Justice
International Criminal Tribunal For Rwanda: Delayed Justice
Table of Contents
  1. Executive Summary
De-escalating Tensions in the Great Lakes
De-escalating Tensions in the Great Lakes
Report 30 / Africa

International Criminal Tribunal For Rwanda: Delayed Justice

Seven years after its establishment immediately following the genocide in Rwanda, and more than four years since the beginning of the first trial, the International Criminal Tribunal for Rwanda (ICTR), based at Arusha, Tanzania, has to date handed down verdicts on only nine individuals.

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Executive Summary

Seven years after its establishment immediately following the genocide in Rwanda, and more than four years since the beginning of the first trial, the International Criminal Tribunal for Rwanda (ICTR), based at Arusha, Tanzania, has to date handed down verdicts on only nine individuals. Of 69 indicted suspects, 45 have been arrested. Not one of the alleged masterminds of the genocide has been brought to trial – including Colonel Theoneste Bagosora who has been in prison for five years. Most of the masterminds of the genocide, whether officially indicted by ICTR or not (due to lack of evidence), are able to live freely in many countries, including the DRC, Gabon, Kenya, and also France and Belgium.

With more than 800 employees, three trial chambers presided over by nine judges, and a budget of around 90 million US U.S.$, the performance of the ICTR is lamentable. Between July 1999 and October 2000, the only substantial case heard[fn]A substantial case is defined as the taking of witness testimony, their questioning by the prosecutor, their cross-examination by the defence or the taking of expert evidence during a public hearing. The trial of the former mayor of Mabanza, Ignace Bagilishema began last December and the verdict is expected on 7 June 2001.Hide Footnote was the trial of a single accused, Ignace Bagilishema, the former mayor of the village of Mabanza, which has just concluded. Five judges out of nine have spent more than a year and a half without hearing a substantial case and one of them had managed by last March to attain a record 28 months without hearing a substantial matter.

There are some points in the ICTR’s favour. It has provided indisputable recognition of the Rwandan genocide and has politically neutralised the “Hutu Power” movement’s agenda of Tutsi extermination. However, seven years on, it has still not been able to shed light on the design, mechanisms, chronology, organisation and financing of the genocide, nor has it answered the key question: who committed the genocide? Compared to the International Criminal Tribunal for the former Yugoslavia (ICTY), the ICTR has suffered from international disinterest and a shocking lack of media attention. That is in part because the jurisdiction of the ICTR is limited to the trial of crimes committed in 1994, while the ICTY’s jurisdiction is not subject to any time limit.

The symbolic existence of the tribunal has also not discouraged the ongoing protection in certain capitals (Kinshasa, Brazzaville, Nairobi among others) of more than a dozen powerful Rwandan Hutus who are among the principal genocide suspects. Neither does it appear to have dissuaded the perpetrators of the 1994 genocide and the war between the former Rwandan government of Habyarimana and the Rwandan Patriotic Front (RPF). The perpetrators of the genocide rearmed with complete impunity in the refugee camps of eastern Congo, leading to the resumption of the war by the RPF in 1996 and again 1998 on the territory of the Democratic Republic of Congo, where war crimes and crimes against humanity continue to be committed by both sides.

It is certainly not the responsibility of the judges of the ICTR to write history. But their failure to complete the central tasks of delivering justice and establishing a record of events also prevents them from contributing to another mandate set by the Security Council: national reconciliation between the Hutu and Tutsi communities. The fact is that the political relevance of that mandate has been rapidly overtaken by the continuation and regional spread of the conflict.  

For the majority of Rwandans, the ICTR is a useless institution, an expedient mechanism for the international community to absolve itself of its responsibilities for the genocide and its tolerance of the crimes of the RPF. The Rwandan government complains of the squandering of money and resources while 130,000 prisoners fill its jails and its courts have tried more than 4000 suspects; the survivors of the genocide find the tribunal distant and indifferent to their lot, and the victims of the crimes of the RPF denounce it as an instrument of the Kigali regime, seeing the ICTR as a symbol of victor’s justice.

The important task of the ICTR seems to have been lost in daily dysfunction and internal bureaucratic conflict. The geographic split of the office of the Prosecutor between Arusha, Kigali and The Hague has seriously impeded investigations, and the long absences of judges and defence lawyers have not assisted trial proceedings. There is now a grave risk that those in custody will be released because of the failure to bring them to trial after a period of years. The ICTR must immediately focus on meeting its mandate, while the UN Security Council must ask the prosecutor to set a deadline for investigations, and ask the judges to publish a trial schedule. Every day the mission of the ICTR becomes more of an historical exercise, with less and less chance of having an impact on events of the present. To tolerate such a situation, and support it for too long, would be a second betrayal of the people of Rwanda.

Above all, in the short term, it is imperative to establish priorities among pending cases, and bring to trial those who are already in custody. Three of the key groups that were used by Hutu extremists in the former Rwandan leadership were the army, the interim government and the media. The trial of key media figures is underway. The trial of military figures, many of whom are already in prison, should also begin as a matter of urgency. This is extremely important in order to show how the genocide was planned and carried out. The cases against former ministers of the interim government should also begin as soon as possible.

Once the major genocide trials are complete, the ICTR must undertake investigations of crimes committed in 1994 by the RPF.  Despite public announcements at the beginning of the proceedings and the promise of cooperation by the government of Rwanda, it is likely that this inquiry will be seriously limited. It is hard to imagine that those in power will, in effect, lift immunity on the military, especially those who are continuing the war in the DRC. It is nevertheless crucial to insist that the regime in Kigali deliver criminals into the hands of international prosecutors, and so give a strong political signal that no crime, past or present, will go unpunished.

If the international community really wants to deliver justice and combat impunity it must urgently reform the operations of the ICTR. The recruitment of judges must be reviewed to ensure that they have real professional experience in criminal justice.  They must be made accountable for their activities and performance. The independence of the prosecutor’s office must be strengthened and incompetent employees of the prosecutor’s office and registrar’s office should be dismissed. At the same time, international cooperation between states and the ICTR must be improved in relation to the arrest and prompt transfer of suspects.

UN member states should extend their legal jurisdictions to help the cause of justice in Rwanda. The best example so far has been that of Belgium, which has just tried four Rwandans under a 1993 law that gives its national courts the power to try suspects for genocide, no matter where the crimes were committed. 

In the current situation and in the face of such a large task, it is illusory to think of enlarging the mandate of the ICTR to include crimes committed in the DRC, or in Burundi, as some have proposed. Until the permanent International Criminal Court is established, international law must immediately be applied in national jurisdictions to prosecute crimes committed in Burundi since 1993 and in the DRC since 1995. It may also be envisaged that a special court of mixed jurisdiction be created along the lines of those proposed for Sierra Leone and Cambodia. The question of the enlargement of the ICTR may be reconsidered in future, but only if it quickly manages to fulfil its mandate.

In the end, the international tribunal must deliver justice to the victims of the genocide. Certain trials should for example be transferred to Kigali to reach certain audiences and to increase the impact on the Rwandan population. The question of compensation for victims by the creation of an international fund is equally important.

Nairobi/Arusha/Brussels, 7 June 2001

Commentary / Africa

De-escalating Tensions in the Great Lakes

President Tshisekedi’s plans for joint operations with DR Congo’s belligerent eastern neighbours against its rebels risks regional proxy warfare. In this excerpt from our Watch List 2020 for European policymakers, Crisis Group urges the EU to encourage diplomatic efforts in the region and Tshisekedi to shelve his plan for the joint operations.

This commentary is part of our Watch List 2020.

Since assuming office in early 2019, the Democratic Republic of Congo’s (DRC) president, Félix Tshisekedi, has stressed his determination to dismantle the dozens of Congolese and foreign armed groups blighting the troubled east of the country. He has also prioritised repairing ties with neighbouring states, which have historically both backed and fought against rebels in the eastern DRC over various cycles of war in the last two decades. Today, tensions are again mounting among the DRC’s neighbours – between Burundi and Uganda, on one hand, and Rwanda, on the other – potentially compounding the country’s security challenges. Alongside Tshisekedi’s diplomatic efforts to calm tensions, he has floated plans to invite these three neighbours to deploy their armed forces into the DRC to conduct joint operations with Congolese forces against rebels. Yet insofar as tensions among those countries remain high, such operations could pave the way for them to step up support to allied groups even while fighting rivals, and thus fuel proxy warfare. Civilians in the eastern DRC are likely to suffer most.

In line with its December Foreign Affairs Council conclusions that lay out the EU’s plans for re-engagement with the DRC, and to help President Tshisekedi de-escalate regional tensions, the EU and its member states should:

  • Reinforce the International Contact Group for the Great Lakes region, an informal gathering comprising the UN (including both the UN’s special envoy to the Great Lakes and the head of its mission in the DRC, MONUSCO), the U.S., the African Union and South Africa, as well as the EU and several European states that are important donors in the region, such as Belgium, the UK, Germany, France, the Netherlands and Sweden. The EU and European governments could designate senior EU and other European ministerial appointees to fill the group, over and above the working-level desk officers who normally tend to participate.
  • Use the increased clout this would bring to push for a mechanism whereby each of the three neighbours airs allegations against states they believe are backing armed groups in the DRC and supports the charges with evidence. Allegations can then be investigated by the UN Group of Experts and the Expanded Joint Verification Mechanism of the International Conference of the Great Lakes Region (the ICGLR comprises regional states and is a guarantor of a 2013 regional peace agreement; its joint verification mechanism and the UN expert group already have mandates to investigate claims of support to armed groups). Their findings could inform diplomatic efforts to de-escalate tensions among neighbours and end their backing of insurgents in the DRC.
  • At the same time, encourage President Tshisekedi to shelve, at least for now, his plan for joint operations with neighbours’ security forces.
  • Offer financial and technical support for the national disarmament, demobilisation and reintegration (DDR) process, to ensure that Congolese militias linked to foreign rebels operating in the eastern DRC have a safe pathway to giving up their fight.

Security Challenges

In recent months, eastern DRC-based foreign insurgencies have escalated attacks on both the Congolese army as well as soldiers and civilians in neighbouring countries. The Burundian, Rwandan and Ugandan presidents are all rattling their sabres in response, accusing one another of proxy warfare.

On 4 October, DRC-based fighters killed fourteen people in Kinigi village in Rwanda’s Musanze district. Rwandan authorities blame the Forces démocratiques de liberation du Rwanda (FDLR) rebels. They say the FDLR is working with another DRC-based rebel group, the Rwanda National Congress (RNC), which they allege is run by one of President Paul Kagame’s former generals. They also say both the FDLR and the RNC enjoy Burundian and Ugandan support. In a speech, Kagame vowed to retaliate against anyone seeking to attack Rwanda.

After the Kinigi killings, fighters crossed into Burundi from the DRC to launch two separate deadly attacks. Burundian RED-Tabara rebels, whom Burundian officials say are backed by Rwanda, claimed the first attack. No one claimed the second, but Burundian President Pierre Nkurunziza, recalling Kigali’s support for mutineers in a 2015 coup attempt, blamed Rwanda for both attacks, alleging that Kigali supports RED-Tabara. Ugandan officials, for their part, assert that Rwanda is collaborating with the Allied Democratic Forces, a rebel movement with roots in Uganda that is implicated in dozens of massacres in the Beni area of North Kivu since 2014.

Rwandan and Ugandan officials continue to trade accusations that each is plotting to destabilise the other.

Rwandan and Ugandan officials continue to trade accusations that each is plotting to destabilise the other. Both governments have purged their security services of suspected traitors. Rwanda has now also closed a main border crossing into Uganda, suffocating trade between the two countries. Meanwhile, Burundi and Rwanda have dispatched troops to their mutual border while Uganda has deployed troops to its western frontier facing North Kivu. Should these tensions heighten, they could fuel more proxy fighting in the eastern DRC, further threatening regional stability.

Recognising the dangers, Tshisekedi invited Rwanda and Uganda for talks in July and August hosted by Angolan President João Lourenço in the Angolan capital Luanda. They culminated in a memorandum of understanding, signed on 21 August, in which both countries promised to halt “actions conducive to destabilisation or subversion in the territory of the other party and neighbouring countries”. In addition to these diplomatic efforts, the DRC president floated plans that would involve the armed forces of Burundi, Rwanda and Uganda conducting joint military operations with Congolese forces against insurgents in the eastern DRC. Absent political de-escalation among the neighbour governments, such operations could pave the way for all three to ratchet up support to proxies opposing their respective rivals. The eastern DRC could again become the arena for a multi-sided melee.

Calming Regional Tensions

In its latest Foreign Affairs Council Conclusions on the DRC in December 2019, the EU asserted its readiness to redefine its relationship with the country. This comes after relations between Brussels and Kinshasa cooled at the tail end of Kabila’s presidency, when the EU sanctioned some of his top henchmen in late 2018. President Tshisekedi has expressed an increasing willingness to work with Brussels even as the EU renewed sanctions in December 2019 against twelve of the fourteen Kabila-era officials. In particular, the EU could help de-escalate regional tensions and lessen neighbours’ support to foreign armed groups while contributing to pathways to surrender for Congolese fighters allied to such groups.

The immediate priority is to encourage President Tshisekedi to reinvigorate diplomatic efforts to calm tensions among DRC’s neighbours.

The immediate priority is to encourage President Tshisekedi to reinvigorate diplomatic efforts to calm tensions among DRC’s neighbours while putting aside, at least for now, plans for those neighbours to conduct military operations in the eastern DRC. The EU’s best bet for pressing for an approach along these lines would be to increase its influence in the International Contact Group for the Great Lakes, the informal group to which it and a number of European states belong. Brussels and other European capitals should commit more senior officials both to the contact group itself and to liaising with the group and with regional governments. Together with the UN special envoy to the Great Lakes, Xia Huang, who has recently been instrumental in bringing together the Burundian, Congolese, Rwandan and Ugandan intelligence chiefs to discuss their deteriorating relations, the EU should use its weight in the group to prioritise the need for a political solution to tackling foreign armed groups in the eastern DRC.

Such a solution could entail Xia encouraging the three states to lay out their allegations and evidence of support by their rivals to armed groups in the DRC. He could share all information received with the UN Group of Experts and the Expanded Joint Verification Mechanism of the International Conference of the Great Lakes Region. The evidence provided by regional states, and investigations conducted by the expert group and joint verification mechanism, could collectively inform diplomatic efforts to halt or diminish support to DRC-based insurgents.

By financially and technically supporting the national DDR process, the EU can also back Tshisekedi’s priority of tackling the plague of Congolese armed groups. Congolese insurgents, many of whom are sucked into alliances with more powerful foreign armed groups, often lack an alternative in the absence of a fully funded DDR program. Under Kabila, the Congolese authorities gave only limited resources to DDR. Several donors pulled out, frustrated by Kinshasa’s lack of commitment to funding a national program. Despite the uptick in attacks in the east, there are signs that some fighters are placing greater hope in Tshisekedi’s presidency and expressing greater desire to surrender. MONUSCO’s new mandate, adopted at the end of December 2019, encourages the DRC’s government to appoint a senior coordinator to lead the DDR effort. The EU could consider supplying this person with the necessary funding and expertise to carry out the mandate.

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