The New Kosovo Tribunal – Turning Victors’ Justice on its Head?

A man pushes his ailing grandmother in a wheelbarrow to Albania during the Kosovo war.

An international criminal tribunal has been set up to prosecute the victors of the 1999 war in Kosovo. Yes, you read that right. A court has been set up with a mission to investigate and bring to justice those members of the victorious Kosovo Liberation Army (KLA) allegedly responsible for heinous human rights violations and atrocities committed against ethnic minorities and political opponents in the region. An outgrowth of specialist chambers set up by Priština last summer, the lumpily named Kosovo Relocated Specialist Judicial Institution (KRSJI) will be hosted in The Hague. This marks the first time that a special court has been established with the express purpose to prosecute the victors of a war. But can it succeed?

Perhaps the most stubborn, unyielding criticism of international criminal tribunals is that they suffer from victors’ justice. Nuremberg only prosecuted Nazi crimes — and not the ghastly crimes of the Soviet Union or the Allied Force’s carpet bombing of Dresden; The International Criminal Tribunal for Rwanda only prosecuted the Hutu perpetrators of the genocide, leaving all others — including some who subsequently enjoyed political power — to enjoy impunity; the International Criminal Court (ICC) generally prosecutes one side of a conflict — and its targets are typically on the losing side. But in the case of Kosovo, there has been a push to ensure that new structures are created to combat one-sided accountability and to ensure that victors’ justice is itself vanquished.

The product of long-term negotiations aimed at integrating Kosovo into the European Union, the KRSJI will focus exclusively on KLA combatants, many of whom are revered in Kosovo. Precisely because of the controversial nature of prosecuting widely celebrated figures, all sides agreed that the tribunal should be housed away from the scene of the war. According to the government of the Netherlands,

prosecuting KLA members “is a sensitive issue in Kosovo. Possible suspects may be seen by sections of Kosovan society as freedom fighters, and witnesses may feel threatened in Kosovo. This is why the option of trying cases outside Kosovo was explored.”

The court itself is a sort of hybrid of a hybrid tribunal. Rather than having an international-domestic mix between the various elements — judges, prosecutors, staff, funding, etc., the EU will foot the entire bill, all of the judges will be internationals, and everything else will ostensibly come from Kosovo. Notably, it remains unclear who will be responsible for witness protection, especially given the fact that many witnesses have already been moved out of Kosovo.

As noted above, the special court will be based in The Hague — in some undisclosed location until the former Europol headquarters can be retrofitted with a courtroom. Some, however, don’t see it as an international tribunal at all. Because it was set up under Kosovan law, rather that under international law or some mix of the two, the government of the Netherlands has insisted that the KRSJI “will not be an international tribunal, but a Kosovan national court that administers justice outside Kosovo.” Again, however, all of the funding and all of the judges will be come from outside of Kosovo.

The big question is whether the tribunal — international or not — can manage to successfully pursue and prosecute KLA perpetrators. This is an undoubtedly daunting task. Not only is the KLA broadly supported in Kosovo but some of its most senior members remain in positions of political power. For one, Kosovo’s former Prime Minister and its current Foreign Minister is Hashim Thaçi, a founder of the KLA as well as its  political chief. Thaçi was named in a 2011 Council of Europe report as a being involved in organized crime networks that committed war crimes and were involved in the sex trade as well as and organ trafficking. Unsurprisingly, Thaçi, who has hired a British PR firm to improve his image and profile, was less than supportive when asked about his cooperation with the KRSJI:

We’ll do our utmost not to allow for the perpetrators of crimes [Serb forces] and the victims of crimes to be equals in the book of history … This was a defensive war and I expect nothing else but this will be proven.

Not only has Thaçi declared that the allegations against KLA members were “groundless” but, according to some reports, he also at one point threatened to release the names of all ethnic Albanians who assisted the Council of Europe investigation. Continue reading

Posted in Balkans, Kosovo, Kosovo Liberation Army (KLA), Kosovo Relocated Specialist Judicial Institution (KRSJI) | 6 Comments

A Tug of War for Justice — Confusion over Complementarity and Cooperation in the Congo

Patryk I. Labuda joins JiC for this timely and important update on critical events relating to international criminal justice in the Democratic Republic of Congo (DRC). Patryk is a Ph.D. Candidate at the Graduate Institute of International and Development Studies and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.

A family flees violence and heads towards Goma in the Eastern DRC (Photo: James Akena / Reuters)

A family flees violence and heads towards Goma in the Eastern DRC (Photo: James Akena / Reuters)

The Democratic Republic of Congo (DRC) has been the most active state party to the International Criminal Court (ICC). Twelve years after President Kabila referred his country to the ICC, three Congolese nationals — Thomas Lubanga, Germain Katanga, and Mathieu Ngudjolo — have been tried and another, Bosco Ntaganda, is currently on trial before the Court. A fifth Congolese, Jean Pierre Bemba, is also being tried in The Hague but on charges stemming from the situation in the neighbouring Central African Republic. He and three other DRC nationals also face obstruction of justice charges relating to Bemba’s case. In total, the ‘Congolese cases’ account for over half the ICC’s trials to date.

Yet even by these standards, the last few weeks in the DRC have seen remarkable developments that go to the very heart of the ICC’s mandate and raise interesting questions for the international criminal justice project more generally. First of all, after nearly fifteen years of political horse-trading, the Congolese authorities finally incorporated the Rome Statute into domestic law. On 2 January 2016, President Kabila officially promulgated a series of legislative bills, known collectively as la loi de mise en œuvre du Statut de Rome, which brings key aspects of Congolese criminal law into line with international standards. Long resisted by parts of the DRC’s political establishment, the bills’ adoption concluded a lengthy struggle led by Congolese civil society and international NGOs under the banner of complementarity, i.e. the principle that gives states priority to prosecute international crimes. Though not a legal obligation flowing from the Rome Statute itself, it is widely believed that domesticating the ICC’s definitions of crimes, procedural safeguards, and other cooperation obligations will enable national judicial systems to more effectively meet the challenges of prosecuting international crimes domestically.

It quickly became apparent that these moves were more than just a symbolic victory for the international justice and human rights community. Although international crimes have already been prosecuted before some Congolese military tribunals, the first test of this new legislation may come sooner than anyone anticipated.

On 19 December 2015, the ICC announced that Katanga and Lubanga had been transferred back to the DRC to serve out their sentences. This caught many ICC observers by surprise. It has long been assumed that international criminal defendants not only prefer trials before international tribunals (considered more impartial than their domestic counterparts) but also that the conditions at Scheveningen prison, used by the ICC as well as other tribunals in The Hague, are relatively comfortable — especially when compared to prisons in the DRC.

Yet what is most surprising about Katanga and Lubanga’s transfer is that both risk prosecution by the Congolese authorities once they complete their ICC-mandated sentences. It should be remembered that Lubanga and Katanga were already under investigation in the DRC before their surrender to the ICC. A the time, this prompted some observers to question whether the ICC’s exercise of jurisdiction in these cases was in conformity with the principle of complementarity, which seemed to require that the ICC defer to the Congolese investigations. The question today is whether the Congolese authorities can re-open those investigations when Katanga and Lubanga are back in Congo. Sure enough, just a few days after their transfer to Kinshasa, Human Rights Watch reported that the Congolese government plans to try Katanga once his ICC-mandated sentence expires. Given that the former rebel commander is set to be released later this month, his decision to willingly go back to the DRC seems astonishing and incomprehensible in equal measure.

If and when it materializes, Katanga’s domestic trial before the High Military Court in Kinshasa raises further questions about the nature of complementarity. For one, the military judges will surely apply the recently domesticated Rome Statute in this case. La loi de mise en œuvre introduced a number of fair trial guarantees that had hitherto been conspicuously absent from the Congolese code of criminal procedure. While Congolese military tribunals have in the past applied some Rome Statute principles in some trials, this will mark the first time that Congolese defendants are held to account in conformity with internationally recognised principles of due process.

But the real question is how Katanga’s (and presumably, at some point in the future, Lubanga’s) trial can be squared with the principle of double jeopardy. Article 20 (2) of the Rome Statute provides that “[n]o person shall be tried by another court for [international crimes] for which that person has already been convicted or acquitted by the [ICC].” This provision is hardly a model of clarity. Crimes against humanity and genocide are by their very nature composites of multiple crimes, so it is not very hard to argue that defendants were prosecuted for only one underlying crime (for instance, murder as a crime against humanity) but not another (for instance, rape as a crime against humanity).

Given the ICC Prosecutor’s practice of charging suspects with only a few crimes (usually those easiest to prove), there is a very real prospect that people convicted or acquitted by the ICC will, after their release, face domestic prosecutions in relation to charges that the ICC ‘missed’. Not only is this a serious challenge to the idea of equitable justice, but it also undermines the principle of complementarity: what is the point of international trials if people tried in The Hague then face domestic prosecutions for conduct closely related (though not identical) to the crimes pursued by the ICC? How the Congolese answer this question may have knock-on effects in other situations where defendants, after serving their sentences, will presumably have second thoughts about the prospect of returning home.

As news of Katanga and Lubanga’s transfer to Kinshasa broke, another remarkable story was unfolding in the DRC. On 7 December 2015, the Congolese government announced it had custody of Ladislas Ntaganzwa. Wanted on charges of genocide and crimes against humanity and on the run for nearly twenty years, Ntaganzwa is one of nine fugitives who managed to evade justice before the International Criminal Tribunal for Rwanda (ICTR). In 2012, ahead of the ICTR’s planned closure, Ntaganzwa’s case was transferred back to the Rwandan prosecution authorities, but little was known about his whereabouts… until now. Continue reading

Posted in Complementarity, Democratic Republic of Congo, Germain Katanga, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Rwanda, Thomas Lubanga | Tagged | 3 Comments

The Case for a Permanent Hybrid Tribunal for Mass Atrocities

Muslim civilians in Bangui take cover to avoid heavy gunfire directed towards the Baya Dombia school where voters were gathering for the Constitutional Referendum on December 13, 2015. (Photo: Marco Longari / AFP)

Muslim civilians in Bangui take cover to avoid heavy gunfire directed towards the Baya Dombia school where voters were gathering for the Constitutional Referendum on December 13, 2015.
(Photo: Marco Longari / AFP)

There is no point denying it. The current global production of mass atrocities far outweighs the tools and institutions that exist to respond to them. There is a far greater demand for, than supply of, international justice. We often hear about the development, growth, and entrenchment of a “system” of international justice. But Stephen Rapp, the former U.S. Ambassador-at-Large for War Crimes Issues, recently remarked: “there isn’t a global system of justice, just some cases in The Hague and a few other places”.

Despite lofty rhetoric, the International Criminal Court (ICC) was never going to be a silver-bullet solution to creating a system of international justice. That’s not the institution’s fault, but it is high time the international community look beyond the ICC towards establishing a network of institutions and organisations that can, together, cohere into such a system of global accountability. As just one part of that, serious consideration should be given to the establishment of a permanent hybrid tribunal to prosecute mass atrocities.

In 1998, when states gathered to negotiate the Rome Statute of the International Criminal Court, the preponderant idea was to move away from an ad hoc approach of international criminal justice to a permanent system that would, eventually, become universal in reach. And who knows, it might yet achieve that aim. But it won’t do so any time soon. While most states are members of the ICC, the most powerful countries — including Russia, China and the U.S., as well as the vast majority of the world’s population — lie outside of the Court’s jurisdiction. Moreover, if the lack of adequate funding of the ICC as well as the UN Security Council’s apathy and inaction on matters of international criminal justice are any indication, state interest in an effective and independent ICC is lukewarm — at best.

Making matters worse, states that were once staunch supporters of the Court are, at the very least, re-thinking their allegiances. The ICC’s Office of the Prosecutor itself understands its limitations, publicly admitting that the institution has a “basic size”, meaning that it can only afford to open a small number of investigations and have a small number of ongoing trials in any given year moving forward. Some, like Elizabeth Evenson of Human Rights Watch and Jonathan O’Donahue of Amnesty International, have described this situation as “the ICC’s capacity crisis”. But even if the ICC wasn’t facing such difficult times, the Court is inherently limited in what justice it can mete out. Even in an ideal world, the Court is structured in such a way that it would never be able prosecute all actors responsible for international crimes. And neither can states, particularly those emerging from violent political conflict. Some ‘outside the box’ thinking is needed.

The limits of what the ICC can achieve with regards to delivering justice and accountability point to the need to think beyond The Hague as the sole capital of international criminal justice. In the world of international criminal law, the ICC should not be, does not need to be and cannot be, the only game in town. Today, the widespread view that the Court should displace all ad hoc and hybrid tribunals seems as trite as it is misplaced. No tribunal type should be discarded entirely, certainly not in the name of the ICC, an institution that structurally and politically can only prosecute a tiny sliver of perpetrators.

As a result of the ICC’s limited reach, the incapacity of states to prosecute international crimes themselves, and the increasing expectation that justice be pursued in the wake of mass atrocities, we are witnessing the rehabilitation of other forms for tribunals, including the hybrid model. Last year, the Central African Republic (CAR) passed legislation establishing the Special Criminal Court. Early signs suggest that if any criminal tribunal is set up in South Sudan to deal with recent unrest, it also will take the form of a hybrid tribunal. While the push for a Security Council referral of Syria to the ICC has absorbed the lion’s share of global attention, there has also been persistent talk of the potential to create an ad hoc, possibly hybrid, court to deal with crimes perpetrated during the Syrian civil war. All of these tribunals, like their predecessors for Cambodia, Sierra Leone, Lebanon, etc., would be temporary. But what if there was a single institution which could host all of these hybrid courts? Continue reading

Posted in Complementarity, Human Rights, Hybrid Tribunals, International Criminal Court (ICC), International Criminal Justice, International Criminal Tribunal for Rwanda (ICTR), International Law | 6 Comments

The UN Library’s Most Checked-Out Book Doesn’t Bode Well for International Justice

The United Nations Dag Hammarskjöld Library, New York (Photo: John Gillespie/Flickr CC)

The United Nations Dag Hammarskjöld Library, New York (Photo: John Gillespie/Flickr CC)

The United Nations’ Dag Hammarskjöld Library has announced its most checked-out book of 2015. Maybe something on the UN, you say? Maybe a breezy read on climate change? Or perhaps the latest treatise on the refugee crisis? Okay, maybe diplomats and staff go to the UN’s library for less serious matters and the most popular book is E L James’ Fifty Shades of Grey or the latest release of Stephen Covery’s Seven Habits of Highly Effective People (wouldn’t that be great!). But no. The most checked-out book was entitled Immunity of Heads of State and State Officials for International Crimes. According to Dylan Matthews of Vox,

The book in question isn’t a UN document — it’s a doctoral thesis from the University of Lucerne by Ramona Pedretti, pursuing the question of when heads of state and other government officials can be charged in foreign courts. Generally, she explains, there are two forms of immunity in international law from which heads of state can benefit.

“Immunity ratione personae prevents incumbent Heads of State from being subjected to foreign criminal jurisdiction,” Pedretti writes. “In contrast, immunity ratione materiae protects official acts, i.e. acts performed in an official capacity on behalf of the State, from scrutiny by foreign courts.”

She concludes that immunity ratione personae is absolute, and thus that domestic courts in one country can’t indict the sitting leader of another nation, whereas ratione materiae can be invalidated for defendants who’ve left office — as happened with the arrests of the Nazi fugitive Adolf Eichmann by Israel and Chilean dictator Augusto Pinochet by Spain. Basically, Pedretti is arguing that incumbent heads of state can’t be charged and prosecuted by a foreign court, whereas past heads of state can.

This isn’t exactly great news for proponents of international justice and, in particular, the principle of universal jurisdiction.

Weirdly, the UN Library sort of bragged about the book on Twitter – despite the institution’s mission to, you know, fight global impunity. As Hayes Brown rightly chirped: “…Guys. Why would you brag about this [-] this is not good.” There is a silver lining, though. Clearly diplomats are taking international criminal justice seriously and evidently some (rightfully, we should add) see it as threatening. Like it or not, the possibility of heads of state being prosecuted for international crimes is indelibly part of the world of diplomacy.

Now, how badly do you want the catalog of people who checked out the book – and the breakdown of states they work for?

Posted in International Criminal Justice, United Nations | 3 Comments

An Institution within an Institution – An Interview with the ICC President

Just a few days after the International Criminal Court moved to its permanent premises, Shehzad Charania was honoured to be received as ICC President Silvia Fernández de Gurmendi’s first-ever visitor in her new office. On that unusually mild and sunny December afternoon, there was a spring in everybody’s step. But how does the President see her time at the ICC, the Court’s record to date, and the future of the institution?

ICC President FernandezA New Dawn

I began by asking the President how she was settling into her new surroundings.  She described the building as impressive. Being purpose-built, the new premises were, above all, a much more “functional” group of buildings than the ICC’s previous home. They now had an excellent library, and the courtrooms were modern, light, and much less claustrophobic. The President also sensed a feeling of renewal, and boost in morale among staff. She would look to take advantage of this rejuvenated atmosphere, and ensure that it created momentum towards a improved working environment as well as better leadership and management.

Becoming a Judge …

The President had been involved with the International Criminal Court in one way or another since the mid-1990s. I asked her why she had wanted to become a Judge in 2008. She explained that this had never been her intention when she was part of the Argentinean delegation in Rome. After the Rome Conference in 1998, she remained involved as the Chair of the Drafting Committee of the Rules of Procedure and Evidence. The former Prosecutor Luis Moreno Ocampo then invited her to join his office (OTP), where she worked for four years. After this, she returned to Buenos Aires, thinking that her ICC days were over. But when her government proposed her nomination as an ICC judge, she felt compelled to give it serious thought. In the end, she realised that this was an offer and a challenge she was unable to resist; she has never regretted that decision since.

… and then the President

Standing for ICC President in March 2015 was a natural progression for Judge Fernández. When she was elected as a Judge in 2008, she thought she could change many things such as expediting proceedings and making the Court generally more efficient. But she soon saw that the changes she could implement in her position as a Judge were limited to a single chamber; it was much more difficult to have an impact beyond that. In order to expedite proceedings in any serious and meaningful way, there had to be a more collective judicial effort in conjuction with collaboration with the other organs. This required a systemic shift in thinking and, with that in mind, Judge Fernández decided to stand for President.  She thought that her previous experience would be an advantage: having been at Rome, part of the OTP, and then a Judge, she was intimately familiar with the interconnections and synergies between all the different parts of the Court.

Expediting Trials

I asked the President why she had singled out expediting proceedings as her “number one priority”. Surely dispensing international justice while ensuring the rights of the accused were preserved would, and should, take time, and not be rushed for the sake of efficiency. The President agreed that justice takes time.  But the issue was how long the Court could take in conducting its trials while still maintaining credibility. Anyone involved in the prosecution of international crimes, nationally or internationally, recognised that such proceedings were slow, and complex. But, with respect to the length of proceedings at the ICC, the Court could do better. Of course, the trials during the Court’s first decade were testing the Rome Statute system. They revealed many procedural obstacles, which the Court now understood better how to overcome, and could avoid in the future. But it was also clear that the reasons for the slowness of the trials was not just because of the complex nature of the crimes, but also due to issues such as the Court’s working methods, and the lack of harmonisation between the different chambers. These were factors within the control of the Judges; the move from four to three years for a trial would provide an opportunity for  substantial improvement.

Achievements to Date

I then asked Judge Fernández what she felt she had achieved in her first nine months in her role as President. Her response was: “a lot”. After her election, she had organised a retreat in Nuremberg. Even the issue of what the Judges would discuss, and the basis of those discussions, could have been contested. But it had been an excellent retreat and the Judges made real and tangible progress in achieving common agreement on how to handle certain aspects of the proceedings. Upon their return, they had produced a Pre-Trial Manual reflecting such agreement. The first part of the Manual had focussed on Pre-Trial issues, but they had now added sections on common systems applying to various stages of proceedings, including handling of evidence, disclosure, and victims applications.  The updated version would be issued shortly.

Looking towards the next twelve months, the Judges would formally propose adoption of an amendment to the Rules of Procedure and Evidence (RPE) to reduce the number of Judges required to sit in Article 70 trials (cases involving offences against the administration of justice). Other proposals for amendments to the RPE were also in the pipeline. The Court as a whole would also be taking forward the issue of performance indicators – an important mechanism through which the Court’s progress could be assessed.

Improving and enhancing the governance of the Court was another key focus. The first step therein was to improve the budget process. Discussions on this question had already begun between the principals — the President, the Registrar and Prosecutor. For the President, the budget was not just about mere numbers; it involved aligning visions and required that all parts of the Court move forward together in the same direction. Continue reading

Posted in ICC President, International Criminal Court (ICC), International Criminal Justice | Tagged | Leave a comment

The Best, Worst, Weirdest, Funniest, and Most Frustrating of 2015 – Plus a Surprise for to 2016!

Happy 2016!

The Best Development of 2015

It has been yet another fascinating year in the realm of international criminal justice. After twenty years, the International Criminal Tribunal for Rwanda finally closed its doors. By opening an investigation into Georgia, the International Criminal Court (ICC) made its first intervention outside of Africa. A peace deal between the rebel FARC rebel group and the government of Colombia included widely touted plans for transitional justice. Ukraine opened itself up to an ICC investigation since 2014. Dominic Ongwen, a former child solider turned Lord’s Resistance Army rebel, was detained and transferred to The Hague. Hissène Habré finally went on trial for his crimes against the people of Chad. The Central African Republic moved to establish a hybrid Special Criminal Court to prosecute international crimes perpetrated during its most recent bout of political violence. Palestine provided the ICC jurisdiction crimes committed on its territory since June 2014. And these are just a some of the key developments in international criminal justice in 2015 that we covered here at JiC.

But what, in my view, takes the cake for the best development in 2015 is the growing possibility and expectation of the ICC doing what it always promised: pursuing impartial justice globally, without fear or favour. They may not be overwhelming, but there are growing signs that the Court is taking crimes perpetrated by powerful states more seriously. This was evidenced most strongly in the ICC’s 2015 preliminary examination report, released last November. Within it can be found an implicit warning to Western states, particularly the UK and the US, that if they don’t hold senior perpetrators of international crimes perpetrated in Iraq and Afghanistan to account themselves, the Court will open an official investigation into their conduct. It is worth stressing: the ideal here, as in any situation where the ICC intervenes, is for states – and not the Court – to conduct fair and genuine investigations and, if necessary, prosecutions. But if they don’t or choose note to, Court prosecutors should move to open investigations. Refusal to do so is increasingly untenable. Of course, questions abound as to whether the ICC will ever have the gumption to prosecute powerful actors from powerful states. It’s far from clear and global politics don’t lean in the institution’s favour. But if the ICC is to move beyond the rampant allegations that it is a biased institution that targets the weak and protects the powerful, being bolder and more confident in how it deals with Western crimes is of the essence. As Toby Cadman recently argued: “With the world beset by conflict, an equitable system of international justice – and a functioning institution to deliver it – is needed more than ever.”

The Weirdest Development of 2015

There are couple of nominees for the strangest development in 2015. Who can forget the stunningly whacky idea, proposed by a former senior official in the administration of George W. Bush, that it should be a federal crime in the United States to prosecute American citizens at the ICC? Yeesh!

At the Court itself, while unforseen developments are seemingly always around the corner, the surrender of Ahmad Al Faqi Al Mahdi to The Hague from Mali certainly took  justice followers by surprise. Al Faqi had been charged with perpetrating cultural crimes — specifically the destruction of religious shrines in Timbuktu, Mali. The exact details of how he ended up at the ICC remains shrouded in secrecy and the ICC’s Office of the Prosecutor decided against shedding any light on the matter. It issued a press release on his surrender in the wee hours of a Saturday morning (ensuring that few, if any, media would cover the story) and then chose not to elaborate on this major event the following week. Remarkably, this should be a good story of the institution — one that demonstrates close cooperation from a number of African states and the Court’s willingness to effectively go after perpetrators of cultural crimes. While JiC did cover what we do know to date, hopefully 2016 brings new details.

The Worst Development in 2015

While the lack of any justice for the people that desperately deserve it in places like North Korea and Syria is an ongoing stain on the international community, there is no doubt about what was the worst single development for international criminal justice, and the ICC in particular, in 2015: the visit of Sudanese President Omar al-Bashir to to South Africa. Bashir has been indicted by the Court on charges of crimes against humanity, war crimes, and genocide. South Africa, on the other hand, has historically been a strong supporter and defender of the ICC. While there may be ‘silver linings’ and important details to the story, Bashir’s visit seemingly put a spanner into the notion that South Africa would continue to stand strong with the Court and defend the institution against its political interests in currying favour with other African states. Moreover, it should make observers think twice about how states’ preferences towards the institution have evolved with time — it simply isn’t good enough to insist that, because African states joined the ICC, they must approve of, or support, the Court fifteen years later. States change and so do their interests and preferences. We need much richer thinking on the Africa-ICC relationship. But perhaps more than anything else in 2015, Bashir’s bolstered the widespread view that the ICC has a serious ‘Africa problem’. Continue reading

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The Rwanda Tribunal Closes — But Who Owns its ‘Legacy’?

Archives of the ICTR's cousin, the ICTY (Photo: Damir Sagolj / Reuters)

Archives of the ICTR’s cousin, the ICTY (Photo: Damir Sagolj / Reuters)

The relationship between Kigali and the International Criminal Tribunal Rwanda (ICTR) has always been a sensitive balancing act. Ever since 1994, when the United Nations Security Council decided to establish the tribunal in order to investigate and prosecute senior perpetrators of the Rwandan Genocide, the relationship has been marked by periodic bouts of controversy and heightened tensions. The tribunal never seemed to truly trust the regime of Paul Kagame and the Rwandan president never seemed to truly trust the tribunal. As the ICTR concludes its work and closes its doors twenty year after its creation, this mutual mistrust is still rearing its ugly head.

The closing of the ICTR, as well as that of its cousin, the International Criminal Tribunal for the Former Yugoslavia, has brought forward important questions about the so-called ‘legacy’ of both tribunals. What will these institutions will leave behind and bequeath to future generations? As Viviane Dittrich, a leading expert on the subject of tribunals and their legacies, has cogently observed:

Talk about legacy often arises in a valedictory or commemorative setting when reflecting upon accomplishments and the meaning of being… [But t]he concept of legacy seems to be engulfed in a paradoxical situation: it is understudied, yet rhetorically overused… Ultimately, constructions of legacies are both a reflection and a sideshow of broader debates about the Court’s raison d’être, international involvement in conflict and post-conflict settings and the meanings of justice.

One of the primary raisons d’être of the ICTR — and indeed any international criminal tribunal — is the volumes of records it has accumulated regarding the crimes investigated and prosecuted under its purview. For the Court, these troves of documents were crucial to establishing who bore the greatest responsibility for the Genocide. Moving forward, the ICTR’s archives will prove an indispensable resource to students, scholars, historians, and journalists hoping to establish a detailed and accurate account of not only who perpetrated the Genocide but how and why.

And for this very reason, the closing of the ICTR has been met with some controversy. According to one report:

Rwanda will not relent in its push to host the International Criminal Tribunal for Rwanda (ICTR) genocide archives even when the court closes. Senior ICTR officials met with Rwanda judicial leaders, last week, in Kigali ahead of the official court closure after 20 years of adjudication…

…Rwanda and the tribunal established in 1995 have disagreed over several issues, including lengthy but minimal trials, refusal to transfer archives of the court to Rwanda and breach of sentence enforcements of convicts…

…At least 900,000 pages of transcripts, audio and video recordings of more than 6,000 trial days, 10,000 decisions, on top of 1,020 terabytes digital content are shelved at the tribunal centre in Arusha, Tanzania.

According to the tribunal officials, the court documents, including those classified as ‘confidential’, are the sole property of the United Nations.

But why is the ICTR so hesitant to hand over its archives to Rwanda? After all, this is the history of the people of Rwanda and not that of a now-extinct tribunal. It was Rwandans who lived these crimes and who undoubtedly deserve ownership over the documents which spell out, in harrowing detail, the forensic and factual truths behind the 1994 Genocide.

The problem is, once again, that there remains very little trust between the Kagame government and the broader international community, of which the ICTR is just one part. Kigali has always been suspicious, not only of the tribunal, but of the broader project of international criminal justice and the human rights community that propels it. Kagame’s government, which has ruled since the end of the Genocide and which many consider to be authoritarian, has also earned a reputation of hunting down, intimidating, and assassinating political figures opposed the regime. There are thus pertinent fears that, in the wrong hands, the archives could be used for rather nefarious purposes. Continue reading

Posted in Archives, International Criminal Justice, International Criminal Tribunal for Rwanda (ICTR), Legacy, Rwanda, Rwandan Genocide | Tagged , , | 2 Comments