International courts: justice vs politics

The genocide in Rwanda that claimed up to one million lives in summer 1994 is today far from the top concerns of the international community. But for many thousands of still grieving survivors, it is impossible to forget. The same goes for those in the states of former Yugoslavia who, also in the 1990s, suffered the loss of their relatives in genocidal crimes.

A degree of forgetting may be understandable if not welcome. But far more disturbing is the possibility that political influences or judicial agendas are interfering with the application of justice over the violations of those years.

Monitors from the International Criminal Tribunal for Rwanda (ICTR), based in Arusha, Tanzania were expected in the Rwandan capital Kiagli in the third week of February 2013. The ICTR has handed over a number of genocide suspects to Rwandan jurisdiction, and the monitors' mandate is to assess whether the Rwandan justice system is working effectively with due process in the matter. In fact, Rwanda has within months of the prisoners' arrival finished legal investigations, prepared cases and begun trials.

But this very efficiency contributes to the anger of the Kigali authorities at the United Nations monitors' visit, for – according to Rwanda's prosecutor-general Martin Ngoga - it contrasts greatly with the record of France, where two suspects accused of genocide, extermination and multiple rape were transferred for trial in 2008. There, the investigations have made almost no progress. Moreover, the ICTR decided that the French justice system was "competent" and did not need monitors to oversee the cases of former prefect Laurent Bucyibaruta and Father Wenceslas Munyeshyaka, who continue to enjoy their freedom pending any trial. Why should Rwanda's justice system be subject to monitoring when it is working smoothly in these cases, while France's is endorsed when it is not?

Speaking before the monitors' arrival in Kigali, Ngoga was clear. "If these monitors turn up I’ll tell them clearly it is their last time. They are not welcome here. We have done all the ICTR required yet they still send monitors. France has done nothing - and yet is not required to host these people. It seems a clear case of politics, with the poor African country yet again being treated differently despite abiding by rules the western states flout."

This new hard stance seems to have paid off in the short term, at least with the ICTR registrar, Bongani Majora. On his own three-day visit to Rwanda in February 2013, he promised that monitors would now be sent to Paris – and that they would be in place before their colleagues are next in Rwanda. It is a victory of sorts for Ngoga; but there is still a suspicion that when it comes to actions, the ICTR is very often found wanting as politics blocks its judicial remit.

A question of impunity

The charge of hypocrisy over these two alleged genocidaire is part of a far wider malaise at the heart of international justice. Laurent Bucyibaruta and Wenceslas Munyeshyaka were first brought before the French courts in 1995, having fled Rwanda after the genocide. In 2004, the European Court of Human Rights - reacting to a complaint from survivors - condemned the French judiciary's slowness in bringing their cases to trial. The ICTR had considered taking the cases to Arusha before, in 2007, transferring them to France - but only on the understanding that France's justice system would indeed implement justice quickly and thoroughly, according to its obligations.

In 2013, however - six years later - the files for both men remain closed and untouched. The ICTR had the option to recall the cases on the grounds that France was doing nothing, but chose for political reasons to remain silent. Bongani Majora, the ICTR registrar, announced during his recent visit: "We have sent a delegation to France to express our concerns that their investigation is going slowly”. After nineteen years of inaction, that is masterful understatement.

French pressure-groups such as Survie and the Collectif des Parties Civiles pour le Rwanda (CPCR) have noted that Bucyibaruta worked closely with France's Operation Turquoise - the intervention at the end of the genocide that is accused of allowing tens of thousands of suspects to escape justice (many to France). Munyeshyaka, for his part, was allowed to settle in the picturesque Normandy town of Gisors, where the Catholic church gave him a parish and legal assistance to fight the charges of genocide and rape against him.

In addition, there are more than twenty high-profile cases in France where no judicial action has been taken, with suspects either released pending further investigation or charges dropped. They include the case of the wife of the former Rwandan president, Agathe Habyarimana, who was described in a lengthy, independent asylum report as "being at the heart of the genocide".

French investigators have visited Rwanda searching for witnesses and evidence more than thirty times, without any judicial outcome at home. It is worth recalling that the Geneva conventions, of which France is a signatory, states: "(Each) High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts."

By contrast, several countries - among them Belgium, Norway and the United States - have tried Rwandan suspects in their own courts; others, like Canada, have sent them back to Rwanda, as its justice system is now seen as matching international requirements for fair trials and care of prisoners. France's president, Nicolas Sarkozy, made a landmark visit to Kigali in February 2010 as part of a political "rapprochement" with Rwanda, and promised to set up a special genocide chamber to investigate those on French soil still to face justice. Again, three years later the chamber’s efforts have made little progress.
France’s new ambassador to Kigali, Michel Flesch, has denied that politics have in any way interfered with its justice system, and reaffirmed the country's judiciary's independence of the state. The fact remains, however, that almost twenty years after the genocide in Rwanda, the justice system in a leading western state has failed to prosecute any of these highly serious cases.

A charge of hypocrisy

The indignation in Rwanda goes deeper, however. Many survivors of the genocide reacted with incredulity and shock after the appeals bench of the ICTR acquitted two more high-ranking ministers of the "interim government" that served during the eight weeks of the genocide - thus overturning sentences of thirty years' imprisonment at their original trials.

Judge Theodor Meron, an 82-year-old American academic, was in 2012 appointed president of the Appeals Court and Residual Mechanism, which was set up at the ICTR in Arusha and the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Hague to oversee the winding down of the two international courts. Ban Ki-Moon proposed the judge for the four-year position, though like much of the internal court process, a degree of mystery surrounds the appointment.

Already, Judge Meron has delivered a number of highly contentious reversals of original trial sentences. The quashing of the Hague court's original guilty verdicts against Croatian generals Ante Gotovina and Mladen Markac in November 2012, which had been reached over their role in operations in the Serbia-populated Krajina region of Croatia in 1995, was one. Serbia's deputy prime minister Rasim Ljajic responded that the ICTY had "lost all its credibility" and that the decision by the appeals bench was "proof of selective justice, which is worse than any injustice".  Another important judgment at The Hague approaches on 28 February, when Meron delivers the verdict in the appeal hearing of Momčilo Perišić, the former Yugoslav army chief-of-staff, who was given twenty-eight years at his original trial for war crimes.

In another case, Meron cut the sentence of a Rwandan colonel, Anatole Nsengiumva, from life to fifteen years - even though the case involved genocide, extermination and crimes against humanity involving the murder of tens of thousands in Gisenyi prefecture. Meron himself had described such crimes in his appeal verdict in December  2011 as "some of the most serious" known to humanity. Similarly, Théoneste Bagosora, the mastermind of the genocide, had his sentence cut from life to thirty-five years. Since the appeals court has increasingly made early release commonplace, all prisoners can now expect to serve a maximum of three-quarters of any sentence.

The downgrading of sentences by the ICTY and ICTR appeal court under Judge Meron, and the overturning of verdicts reached in trials lasting several years, have led to open splits within the courts. Some have blamed the office of the prosecutor (OTP) for lax administration; other senior officials have criticised the appeal bench for brushing aside original verdicts, often without new documentary or witness evidence.

For example, in the just-completed Mugenzi-Mugiraneza appeal case, Judge Liu Daqun dissented from Meron’s majority verdict. In his opinion he wrote: "Notwithstanding this detailed and considered evaluation of the evidence [by the original trial judges], and without identifying any specific error… this conclusion [of the other appeal judges] is without foundation and exceeds the purview of the Appeals Chamber."

The controversy over sentences is not all. In late 2012, reports emerged that genocidaire who have been sent to Mali to serve their sentences - among them former prime minister Jean Kambanda - were running lucrative businesses in Bamako from their prison. They were free to come and go at will and even employ non-prison assistants in daily living. Meron promised a report on these serious allegations, but there has been no sign of it so far. Rwanda's justice minister Tharcisse Karugarama has expressed fears that the insecurity in Mali at present could offer the prisoners an opportunity to escape.

The ICTR and ICTY's spokespersons highlight the courts' success in bringing high-level genocide suspects before international justice. But the true legacy is troubled. The ICTR alone has cost around $3 billion, trials have been lengthy, the fee-splitting between defence lawyers and their clients is but one example of the dubious influences at work, and there has been an overall lack of transparency in the workings, appointments and decisions of the courts.

The former ICTR spokesman Tim Gallimore recently said he was "increasingly disappointed" at trials that were "dragging on" and at judges who were handing out "unbelievably low sentences for convictions of the gravest of crimes". He added: "The expense is an issue, and the results of that spending are even more disturbing. It is difficult to say that the victims and survivors of the genocide against the Tutsi [in Rwanda] have received justice."

The president of the United Nations general assembly, former Serbian foreign minister Vuk Jeremic, has scheduled a public debate there on 10 April 2013, on the role of international criminal tribunals in achieving justice and reconciliation among peoples. He says:

"The ICTY Appeals Chamber's decision concerning Operation Storm [the Croatian military campaign in the Krajina in 1995] has caused bitterness... It is indisputable that about one quarter of a million Serbs has been forced to leave their homes in a matter of days and that the tribunal, set up to investigate these crimes, had practically decided that nobody is responsible for this. This could lead to a conclusion that no crimes were committed, which is contrary to the reality."

The international community is now committed to trying those allegedly guilty of war crimes in Syria and Libya. There is a clear need for its courts to prove that impunity from the most serious crimes does not occur. In this light, the current experience of the ICTR and ICTY, and the verdicts of Judge Meron, suggest that they are influenced by political and institutional interests more than by principle. In terms of international justice, is it one law for the west and one for the rest?