Something legally intriguing is happening at the International Crimainal Tribunal of Rwanda (ICTR in Arusha.
There were two acquittals in as many days this week at the court.
The judges in the case of Protais Zigiranyirazo popularly known as ‘Z’, said that the Trial Chamber committed serious errors in its judgment delivered in December 2008 which handed down a sentence 20 years to the 71-year-old suspect. As for Fr. Hormisdas Nsengimana, the grounds were “insufficient factual and legal basis.”
Both were shocked by the verdicts as the guilty plea was likely something they both seriously considered at some point in their trials to avoid the maximum sentence.
This raises important questions of jurisprudence because, especially in the former instance, how does the appellate court acquit a genocide suspect for errors committed by a lower court. This is self defeating, convoluted justice, to say the least.
For those who are interested in the law jurisprudence is basically, that facet of philosophy that deals with the law and the principles that influence courts to make the decisions they do.
To try to understand how the judges in Arusha came to the conclusions they did in the above two cases calls for a study of the evolution of jurisprudence and international justice with a focus on crimes against humanity.
In the first instance, jurisprudence that derives from the Latin term juris prudentia, which means “the study, knowledge, or science of law,” has evolved over time based around four major branches.
These are; that jurisprudence that seeks to analyze, explain, classify, and criticize entire bodies of law, ranging from contract to tort to constitutional law such as legal encyclopedias, law reviews and books.
Also, the one that compares and contrasts law with other fields of knowledge such as literature, economics, religion, and the social sciences. The third type of jurisprudence is that which raises fundamental questions about the law itself.
The fourth and in this case relevant area of jurisprudence addresses abstract questions, including; what is law? How does a trial or appellate court judge decide a case?
Is a judge similar to mathematicians or scientists who apply empirical rules and principles? Is a judge like a politician whose decisions usually favor the most politically preferable outcome?
Must a judge base his decisions only on written law enacted by legislatures? Or may a judge also be influenced by unwritten principles derived from personal experience, theology, moral philosophy, and historical practice?
Differing schools of jurisprudence have variously held that: that law is a science- formalism; that law is just another name for politics- realism; that law must be confined to the written rules and regulations enacted or recognized by governments- positivism; and that the law must reflect eternal principles of justice and morality that exist independent of governmental recognition- naturalism.
Formalism is rooted in the belief that a judge identifies relevant legal principles, applies them to the facts of a case, and logically deduces a rule that will govern the outcome of a dispute. Judges derive relevant legal principles from various sources of legal authority.
Formalism also is reliant on inductive reasoning to settle legal disputes, whereas deductive reasoning involves the application of general principles that will yield a specific rule when applied to the facts of a case.
Inductive reasoning starts with a number of specific rules and infers from them a broader legal principle that may be applied to comparable legal disputes in the future.
Realism as opposed to formalism has two main principles. First, it asserts that law is not a scientific enterprise in which deductive reasoning can be applied to reach a determinate outcome in every case. Instead, most litigation presents hard questions that judges must resolve by balancing the interests of the parties and ultimately drawing an arbitrary line on one side of the dispute.
This line is typically drawn in accordance with the political, economic, and psychological proclivities of the judge.
For example, when a court is asked to decide whether a building built in a wetland should be demolished the judge must ascertain whether that is reasonable.
The judge does not base this determination on a precise formula but weighs the competing economic and social interests of the parties against each other, and rules in favor of the more persuasive case.
Realism would thus contend that judges who are ‘green minded’ would authorize the demolition whereas judges who are pro business would not.
Next, realism also propounds the theory that as judges decide cases based on their political leaning, the law has a tendency to perpetually lag behind social change.
Finally, natural-law proponents, agree that governmental rules and regulations are legitimate source of law, but do not agree that they are the only source.
They believe that the law must be informed by eternal principles that existed before the formation of governments and are not reliant on governmental recognition.
The issue at hand usually determines whether a judge derives the principle from, morality, contemporary reasoning, historical practice, theology or personal conscience.
These various schools of jurisprudence are not zero sum games rather they are intertwined and borrow from each other. Harold Berman, a world renowned legal authority, who before his death worked to redress global societal inequalities and to establish systems of trust, peace, and justice in developing countries and co-founded and co-chaired the World Law Institute, advocated for the development of an integrative jurisprudence, which would assimilate into one philosophy the insights from each school of legal theory.
The staying power of any body of legal thought, Berman suggested, lay not in its name but in its ability to explain the enterprise of law.
Next with regard to international law and crimes against humanity, the two great evils of slavery and the accompanying crimes of murder, bondage and torture and the genocide against European Jews, which at their heights were legally recognized by many countries, to bring to light a conundrum that legal practitioners were faced within the two eras.
Both were clearly covered by legislation yet went against well known principles of natural law such as the right to life, dignity and the pursuit of happiness.
How then were judges to deal with these issues when they came before them? Luckily enough for humanity natural justice triumphed, killing off arguments of strict law stating that those gross injustices were legal at the time they were committed.
At least in the latter case- at Nuremberg- the perpetrators were made to pay, ex post facto, for their actions. They were mostly hanged, others committed suicide, while some were incarcerated for lengthy terms.
As the judges, defence lawyers and prosecutors at ICTR, Arusha enter their ninth year of interacting and getting chummy with the convicted and suspected perpetrators of the genocide, and considering that not only do they not have a firsthand perspective of what occurred in Rwanda, for the most part, but also that as they spend a lot more time with them, than with their accusers-- the survivors of the genocide, there certainly comes a time when they begin to empathise and commiserate with the perpetrators.
This leads to the judges’ appreciation of the grossness of genocide to recede, just like a bad smell to a nose over exposed to it. This then leads to the tendency to be more compromising to the defendants.
There are three clear problems with the Arusha tribunal from a factual point of view. First, it is too slow, has taken unnecessarily too long and lastly the same judges have been there for a long time.
Having concluded 47 cases thus far (39 convictions and 8 acquittals) this makes for a judgment every 10 weeks including appeals. In reality some of these cases have gone on for more than 5 years.
The court has various trial chambers. In comparison, the Nuremberg Trials for the top perpetrators of the Jewish Holocaust took just under a year. It was held from November 21, 1945 to October 1, 1946 and was conducted by only four judges.
In this time the court dealt conclusively with 24 cases making it an average of a judgment every two weeks. Despite this expeditious handling of the trials, some cases of officers who interacted closely with the suspects getting cozy with them were reported.
So it is quite clear the folly in letting this Arusha thing go on and on.
In 1945 the judges at Nuremberg were dealing with a more complex legal challenge than those in Arusha today. There wasn’t any clear body of law dealing with genocide, crimes against peace, crimes against humanity, and crimes in violation of transnational obligations embodied in treaties and other agreements.
Also, in order to avoid getting unnecessarily tied down in legal intricacies, when considering the admissibility of particular documents or testimony, the IMT at Nuremberg was not bound by technical rules of evidence common to Anglo-American systems of justice.
The tribunal retained discretion to evaluate hearsay and other forms of evidence that are normally considered unreliable in the United States and Great Britain.
The tribunal at Arusha on the other hand attempts to hide its shortcomings behind a strict application of the written law acquitting a suspect simply because of a grave error on its part and not because of the merits of the case serious as it is.
As it chugs along like an old train moving up a sloppy gradient, ICTR is failing in its historic task of ensuring genocide is deservedly and uncompromisingly given a special place in jurisprudence combining attributes from the four schools of thought elaborated above as unfettered in its approach to dealing with perpetrators of this unparalleled crime and acting as a deterrent in fulfilling the eternal unfulfilled promise of ‘Never again!’