Transitional justice is necessary for establishing criminal accountability where there has been a legacy of impunity for mass atrocities. The major goal of transitional justice is to help post-conflict societies achieve reconciliation.
The International Criminal Tribunal for Rwanda (ICTR) is a transitional justice initiative attempting to break the cycle of impunity by prosecuting the architects of the Genocide who fled Rwanda in 1994. The ICTR also has the mission of facilitating national reconciliation.
In 20 years of operation, the Tribunal has issued 47 convictions and has so far acquitted 14 people with another 11 cases still under appeal. Seven of those acquitted and three released convicts are still in a safe house operated by the ICTR in Arusha.
The ICTR has had limited impact on preventing Genocide and even less impact on reconciliation when considering the core processes of transitional justice: criminal prosecutions, reparation to victims, establishing truth, and institutional reform to prevent future human rights violations.
The Tribunal’s acquittal of high-level perpetrators, the comparatively low prison sentences imposed on those convicted for the gravest of crimes, the preferential conditions of incarceration, and the early release of convicts appear to be enshrining impunity for Genocide rather than serving as a deterrent to mass violence.
Most notably, the Tribunal has failed to stem the ongoing violent conflict in the Democratic Republic of the Congo.
Other failures of the ICTR as a transitional justice initiative includes its lack of ability to hold external actors and bystanders responsible for their role in Genocide; lack of provision for paying reparations to victims’ families and survivors of the Genocide; and the lack of ability or attempt to disarm, demobilise, and reintegrate into society the forces that committed the Genocide.
The ICTR failed even at the symbolic level because of its refusal to incarcerate the convicts in Rwandan prisons, choosing instead to send them to Europe and West Africa to serve their sentences.
The convictions by the Tribunal vindicate the victims and survivors of the Genocide. The convictions are a public recognition and restoration of the dignity and humanity of those who the perpetrators sought to dehumanise and annihilate.
Particularly noteworthy is the decision of the Tribunal’s Appeals Chamber on June 16, 2006 requiring that the Trial Chambers take Judicial Notice recognising the fact that, “Between 6 April 1994 and 17 July 1994, there was a Genocide in Rwanda against the Tutsi ethnic group.” The notice also establishes the historical fact of the Genocide as “common knowledge.”
By issuing and enforcing the judicial notice, the Tribunal has provided psychological support to Genocide survivors and ammunition to the advocates who are combatting Genocide denial.
Judge Theodor Meron, President of the ICTR Appeals Chamber, has been accused of bias in the recent acquittals of the military leaders who the Trial Chambers had convicted. The ICTR records show that Meron participated in all 8 of the acquittal cases decided by the Appeals Chamber. But that fact alone is not enough to establish bias on the part of Meron.
Researchers, and the public for that matter, need access to all the Tribunal’s records to analyse the suppression of evidence and exclusion of testimony that resulted in the acquittal of the likes of Protais Zigiranyirazo and others long known for their ideology and actions to exterminate the Tutsi in Rwanda.
Rwandans are right to question the contributions and legacy of the ICTR not only because of its judicial decisions that they dispute and dislike but also for the void that it is poised to leave in their knowledge of the Tribunal, accountability for the 20-year, $2 billion transitional justice exercise, and its lack of obvious impact on national reconciliation.
An often overlooked and undervalued outcome of transitional justice is its function of creating a historical record of mass violence that can assist with trauma healing and construction of a meta narrative for reconciliation and nation-building. But to do that, you need access to the records of the institution.
In June, the ICTR plans to hand over the Umusanzu mu Bwiyunge Information and Documentation Centre to the Government of Rwanda. But one must ask if a few hundred library books and a handful of outdated computer workstations are all that the Tribunal plans to bequeath to Rwanda as a legacy when it returns to government the building that houses the Centre?
In the interest of the truth, the whole historical and judicial truth, the ICTR should take the bold step of rallying the indifferent international community to construct and support the operation of a UN Information and Genocide Prevention Centre in Rwanda. This centre would give those most concerned with Genocide justice access to their historical posterity.
Now that would be a fitting legacy for the ICTR and grounds for starting on its mission to promote reconciliation in the country.
The writer is a consultant on genocide justice and education and a researcher affiliated with the Interdisciplinary Genocide Studies Centre in Kigali.