"...nationhood as we know it will be obsolete; all states will recognize a single, global authority."
- Strobe Talbott Deputy Secretary of State, 1994-2001
Posted on 12/23/2002 3:29:21 PM PST by Tailgunner Joe
Few of the words that President Bill Clinton offered the world have been stenciled onto the sides of buildings. An exception is his declaration that "Arusha is the Geneva of Africa," painted on several walls of the Arusha International Conference Center in Tanzania, home to the International Criminal Tribunal for Rwanda (ICTR). It is here in this safari town, in a grouping of buildings where the electricity is temperamental and the translators are few, that a new first draft of international law is being written. A court press release boasts that the ICTR is "providing a sound foundation" for the permanent International Criminal Court (ICC), which is scheduled to be up and running in February.
If that's the case, the ICC may be more of a disaster than its critics have predicted. While many of the technical snags of the Arusha tribunal's early days -- lack of translators, power failures, computer shortages -- have been remedied, its structural problems remain, according to yet another report from the International Crisis Group, an independent Belgian commission that has monitored the court from its inception.
Even the court's cheerleaders concede that justice here proceeds at a molasses pace. Seven-and-a-half years into its U.N. mandate, the ICTR has convicted a mere eight individuals, three by plea bargain. In the last three years, the court has handed down only one judgment.
It's now well-documented how the United Nations, and by extension the international community, sat on its hands and watched for 100 days in the spring of 1994 when an estimated 800,000 ethnic Tutsis and a scattering of sympathetic Hutus were slaughtered by the Hutu majority in Rwanda. In presenting the Organization for African Unity report to the United Nations, Canadian diplomat Stephen Lewis said, "Personally speaking, I don't know how [then-U.S. ambassador to the United Nations] Madeleine Albright lives with it." Albright, like many other Western diplomats, would not call the genocide by its name; to do so would have compelled U.N. member states to intervene. With the memory of Somalia still fresh -- and the grainy footage of a Black Hawk down and a dead American soldier being kicked through the streets of Mogadishu -- there was little interest, U.S. or otherwise, to commit troops to yet another man-made disaster on that benighted and feral continent.
Clinton admitted as much. Descending upon Kigali, Rwanda, for a few hours he apologized: "We did not act quickly enough after the killing began," in a genocide where the "killers, armed mostly with machetes and clubs, nonetheless did their work five times as fast as the mechanized gas chambers used by the Nazis." Given this history, it's understandable that the United Nations' sudden interest in the region is a sore spot for the current Tutsi-dominated government in Kigali. What's somewhat surprising is that many of the complaints about the ICTR are echoed by the prosecuting and defense attorneys attached to the court, as well as the Hutus on trial there.
Part of the problem, critics say, is that the ICTR was conceived hastily by a United Nations eager to atone for its inaction. In the name of expediency, the United Nations decided to hew the Rwanda tribunal from the Yugoslavia model even though the circumstances were vastly different. While it's doubtful there was enough time and perspective to assess the flaws of the Yugoslavia court, critics say, Rwandans were offended that an effort wasn't made to alter or improve the charter of the court. One improvement associated with the ICTR, however, is the quality of the hotels in Arusha -- places such as the Impala Hotel, with its malaria-controlled pool, where defense attorneys flush on U.N. retainers drink away their frustration at having to defend clients before a court they claim is seeking nothing more than victor's justice.
Not that the Impala is a one-sided venue. In October, Arusha's finest hotel played host to yet another conference on the weighty, and inexhaustible, subject of international law, this one titled "African Perspectives on Universal Jurisdiction for International Crimes." It is at public forums such as this that fed-up attorneys from the prosecutor's office can vent their frustration with the ICTR. For example, Ken Fleming, a senior trial attorney from Australia, actually is able to talk on the record and share his doubts about how this whole enterprise of universal jurisdiction and international law will function. For starters, he is concerned with establishing a unified set of standards for international law. "How can we assess truth in Colombia or Afghanistan with but one rule of evidence?" he asks.
The question, a difficult one, hangs in the temperature-controlled air, and noticeably is not answered by the tribunal's president, Judge Navanethem Pillay. Having shed her judicial robe for the day, Pillay is busy offering advice to the conference "drafting committee" working on the "Arusha principles," which are meant to supplement the earlier-approved "Cairo principles." Another draft, another conference, another bonanza for the African hotel industry. Somewhere along the way international law, whether in theory or practice, is being written. As Fleming says, "Prior to 1992, any discussion of international law was purely theoretical, purely academic. No one would have known what you were talking about. The world, the media, does not appreciate the significance of what is happening here. The task is immense."
Yet at this conference the problems of the ICTR -- and there are many -- were not on the agenda. Instead, the participants were most excited by a call to hold "IMF [International Monetary Fund] officials criminally accountable in the ICC for giving faulty advice to African countries," as Professor Shadrack B.O. Gutto of the University of Witwatersrand in South Africa suggested. "Yes! Yes!" and a few "Hear, hears" were heard. Then there would be justice, the room assented. After the conference, Pillay jetted off to the United Nations in New York City to ask for more funds, which, she explains, is the main reason for the slow pace of justice. In her absence, the trials continue with two judges presiding instead of three in Trial Chamber I.
"The work here is so important," says Rene Martel, a Canadian defense attorney, "that judges can leave their chambers when they please." In New York, Pillay met with Carla del Ponte, who heads the Office of the Prosecutor for both Rwanda and Yugoslavia from The Hague. In preparation for her appearance before a U.N. funding board, del Ponte reminded her lawyers in Africa that they are not to talk with the press. For del Ponte, a Swiss prosecutor with a prima-donna reputation, no news is good news, especially with regard to the ICTR. One can see why. Given that few of her prosecutors have anything nice to say about her -- charges range from subtle racism to obvious incompetence -- it's understandable why a memo reminding her staff about media guidelines was reissued as she was leaving The Hague for New York.
But del Ponte's media blackout may have been a tactical error on several levels. For one, her prosecutors seemed eager to flout her edict. More importantly, and for the sake of this new concept of international justice, sunshine might be the best disinfectant. The ICC is going to need all the help it can get, say prosecuting and defense attorneys, even if it comes from the trials and errors of the two ad hoc courts. That the ICTR is scribbling the first draft of international law keeps the fire burning in many legal hearts and minds here in Arusha. Since its Rwandan legacy is bound to be deeply muddled, developing a respectable body of jurisprudence now is the highest calling. That may come as a surprise to the Rome signatories to the ICC, who agreed to a specific treaty and not a body of jurisprudence to be determined later.
In fact, several judges at the ICTR don't intend to stay in Arusha and are trying to get appointments to the ICC at The Hague -- a more prestigious posting and in a more comfortable setting. And yet, according to attorneys at the ICTR, the judges -- especially because of their lack of experience and tact -- are the biggest problem. In one oft-cited example, last November judges laughed out loud as the defense attorney cross-examined a witness who repeatedly had been gang-raped over a period of weeks, as she was asked questions such as, "Did you bathe in between?" Not that Rwandans are surprised by the type of justice the U.N. court is providing. From the beginning, the postgenocide government in Kigali wasn't enthusiastic about the Arusha tribunal. For starters, the government officials wanted the trials to be held in their country, close to the scene of the atrocity. And they wanted to try those accused of genocide themselves, under their own legal code that includes the death penalty, which the ICTR does not allow.
Understandably, the Rwandan government was worried that the tribunal would be hampered by the same forces of international sluggishness that prevented the United Nations from interceding in Rwanda in the first place -- back when it could have made a difference.
Del Ponte, like many of her U.N. kin, believes as noted that more money, in particular for more judges, is needed to speed things. Pillay's plan is to establish a compensation fund for the victims. But according to defense and prosecuting attorneys in Arusha, as well as survivors in Rwanda, the quantity of judges is not the problem. Rather, it's the low quality of the judges -- specifically their inability to keep their chambers in control and operate in a timely fashion.
For certain, the judges have a difficult task, given that their chambers are operating under a set of rules no one has mastered -- a cobbling of common- and civil-law procedures with virtually no precedent to guide them, save those of Nuremberg and Tokyo a half-century ago. Trials proceed in three different languages and in as many legal cultures as there are people in the courtroom. Early on, the prosecutor decided to try defendants in groups, meaning that in most chambers there are six or more defense attorneys with the power of objection at any time. With racial preferences more important than courtroom experience, many prosecutors fumble their way through cross-examinations -- often the first of their careers.
In one example, Chile Eboe-Osuji, a Canadian-Nigerian prosecutor, was removed from a case for taking the unusual step of calling an expert witness before he had bothered to establish the facts of the case -- "blundering it," according to several of his colleagues. Eboe-Osuji didn't see it this way and immediately drafted a letter to the U.N. Security Council, alleging racism and demanding a reported $1 million in compensation.
From the beginning the ICTR has had trouble finding and retaining able people. Of the nine sitting judges, at least three have indicated they don't wish to continue when their terms are up in May. Court registrar Adama Dieng says, "Lawyers come down here for two years to build their CVs [curricula vitae] and then are gone," noting that most cases last longer than that.
As daunting as they are, operational problems are secondary to the court's real pickle. Despite its lofty rhetoric, the ICTR is practically -- and some would argue, morally -- beholden to the Tutsi-controlled government in Kigali. The court constantly is running into this reality, whether it's for a visa for del Ponte to visit Rwanda (which was denied in 1999) or for allowing witnesses to testify in Arusha (suspended in June of this year).
That visas haven't always been in order is a looming problem for the court, Tom Kennedy, a U.N. spokesman for the ICTR, tells Insight. In late July, all three branches of the ICTR -- the prosecutor, the judges and the registrar -- fired off letters to the Security Council accusing the Rwandan government of thwarting justice by obstructing witness travel. The Rwandan ambassador to the United Nations shot back an attack on the legitimacy of the ICTR, alleging "inefficiency, corruption, nepotism, lack of protection of witnesses, harassment of witnesses, employing genocidaires as members of defense teams and investigators, mismanagement [and] slow pace of trials," among other alleged misdeeds.
This dispute over witness travel is but the latest example of poor relations between Rwanda and the ICTR. Underneath the visa issue are more-troubling questions about the court's legitimacy and its future. Now that the U.N. Security Council's plate momentarily is cleared of matters concerning Iraq, it is expected to weigh in on the ICTR dispute any day, Kennedy says. It's a difficult situation. The council must choose between its own creation, an international court that is supposed to confer indisputable justice, and the country for which that court was created, a country that disputes the court's ability to provide any justice at all, let alone justice of the untested international variety.
Regardless of the visa games the Kigali government is playing, the more legitimate witness grievances will not fade away. After all, the Security Council may be able to arm-twist the Rwandan government into issuing travel visas, but it can't coerce cooperation from its people. With judges laughing during rape testimony, one can see why. Under tough cross-examination last December, a witness stormed out of the courtroom, accusing the defense attorney of "getting paid because Rwandans died. If Nahimana [the accused] had not killed people, you would not be here." This summer a survivors' group called Ibuka took to the airwaves to urge Rwandans not to cooperate with U.N. investigators.
There's an unsettling historical echo to the Ibuka broadcasts. Given a literacy rate of just 50 percent, Rwanda still is very much a country that uses radio to communicate ideas. In the months before the genocide, RTLM, one of two nationwide stations, fanned the genocidal flames with its mix of popular tunes and anti-Tutsi cant. One of the main criticisms leveled at the United Nations is that it didn't even knock out radio towers to prevent statements such as, "There is a Tutsi walking along the street. Someone should go kill him," from reaching the roadblocks where frenzied bands of killers gathered with grenades and garden tools. It is for actions such as this that Ferdinand Nahimana, the founder of RTLM, sits behind bulletproof glass in Arusha's Trial Chamber I in the so-called "media trial." He stands accused of setting the genocide to music, for providing "the drumbeat of persecution."
Not only does Nahimana deny his role as founder of RTLM, he denies that genocide occurred, which puts him in line with the original U.N. position. One of his codefendants has stopped showing up in court, refusing to recognize the court's legitimacy, which aligns him with the Tutsi survivor groups back in Rwanda. Pillay, the president of the tribunal, and many prosecutors in her chambers all but ignore this sort of thing, claiming that the court answers to humanity and to history, not to the current Tutsi-dominated government in Kigali. Pillay gamely maintains that history's sole yardstick for assessing the court will be "the jurisprudence it produces."
So to whom do Pillay and her colleagues answer? "The judges answer to God," says Kingsley Moghalu, a court spokesman. Naturally, Moghalu doesn't see it as a fundamental flaw that three individuals and then two appeals judges, all of whom are chosen more for their political acceptability than their judicial pedigree, are the final authorities on some very sticky legal questions. "The whole system relies on the integrity of the judges," he says with a smile.
As the court ponders these jurisdictional and moral questions, one factor that also merits consideration is the unease in Rwanda. While the situation is not nearly as tense today -- especially after Rwandan army forces invaded the Democratic Republic of the Congo and broke up the "Hutu Power" groups that were based there and, in some cases, operating out of U.N. refugee camps -- the genocide is less than a decade old. Scars still are raw. It's easy to see how the tribunal, meddling on behalf of humanity, could fracture the tenuous peace in Rwanda, sparking another wave of ethnic violence between Hutus and Tutsis.
And in neighboring Burundi, where a nine-year civil war rages along similar ethnic lines and peace talks are in yet another round, many are closely watching the antics of the ICTR. Might some Burundi rebels be reluctant to lay down their arms in a brokered peace deal, knowing they still might be subject to a Swiss prosecutor with a $100 million budget? None of the dozen or so ICTR functionaries interviewed by Insight in Arusha think the ICTR has an ounce of responsibility for the continued peace in the region. And, according to their mandate, they don't.
One attorney shrugged off any suggestion to the contrary with "the old stability argument." It's clear the lawyers and judges of the ICTR like the idea of working on behalf of humanity rather than something as trifling or temporal as a country such as Rwanda and its 800,000 dead. Representing humanity as a client is a nice luxury to have in the bubble of Arusha, or for del Ponte, hopping between The Hague and the United Nations in her private jet (she's neither fond of traveling to Africa, nor flying coach). But "humanity" is an abstraction, one of the many words with an unfixed meaning in the new lexicon of international law. Rwandans, Hutu and Tutsi alike, know all too well how vague political vocabularies can lead to political violence. Oh yes, and thus far humanity has yet to fire any of its legal counsel.
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