By Mark Kersten
The relationship between Kigali and the International Criminal Tribunal for 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 heightened tension. 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 years 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 are these institutions leaving behind and bequeathing to future generations? As Viviane Dittrich, an expert on the subject, 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 [of] 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 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.
At the same time, the tribunal is in possession of substantial evidence relating to crimes perpetrated by the Kagame-led Rwandan Patriotic Front (RPF) during the 1994 genocide — evidence that it never used for prosecutions. As Yolanda Bouka says
"This political aspect of the tribunal is very frustrating, as it offers an official narrative: Where genocide crimes against the Tutsi population have been highlighted as the only crimes.
"The reality is…the RPF committed a tremendous amount of crimes throughout the country during the civil war and during the genocide, and because the tribunal has failed to properly investigate them or try to prosecute them, I think this is going to be one of the biggest failings of the tribunal."
But ICTR prosecutors did, in fact, attempt to investigate alleged RPF crimes in early 2002. However, Kigali was so outraged that it successfully ensured the dismissal
of the tribunal’s then-chief prosecutor, Carla del Ponte. RPF crimes were subsequently and consequently swept under the rug. Amazingly, they have never been accounted for. The fact that evidence of their commission exists in the ICTR’s archives, however, is seen as an ongoing threat to the Kagame regime — and one over which the government cannot exert its control. There are resultant concerns from the human rights and international justice communities that handing over the archives could lead to their (at least partial) destruction.
There is little-to-no chance that the ICTR’s archives will end up in Rwanda any time soon. Instead, they are likely to reside for the time being in the tribunal’s residual mechanism, the so-called Mechanism for International Criminal Tribunals, housed in the same Arusha-based premises as the ICTR. Leaving the archives there will buy the tribunal and the United Nations Security Council a few years to find a permanent solution that both protects the tribunal’s legacy whilst promoting access to its archives. But one thing is certain: this controversy is far from over.
Courtside Justice is a bi-monthly column by Mark Kersten, the creator of Justice in Conflict
, looking into the politics and dilemmas of international justice.