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contribution 07 - SCHABAS William

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ICTR assessment - Politics & Justice - RPF prosecution - Reconciliation


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Aside from the usual thanks to the organisers, I would like to start my remarks by thanking all of the people in this unusual gathering around the table who have given so much of their professional lives to trying to make this project work. I think it’s important that you should know that it has worked.

The discussions I have heard ‑‑ and I wasn’t here for the entire meeting ‑‑ left me with the impression of ‑‑ as often happens when people evaluate and assess the performance of an institution, criticism of various aspects without standing back and looking at the broader picture. But I remember when all of this started in 1994 and the goal was not to create a big institution and give people jobs for 15 years. I don’t think anybody imagined in 1994 that the Tribunal would last 15 years, that it would cost so much, that trials would take so long. But the real goal then was to see that impunity was brought to an end at all levels.

As I recall, that Resolution 955, that created the Tribunal, also had a paragraph ‑‑ we took note of it at the time because it wasn’t in Resolution 827 that created the Yugoslavia Tribunal. There was a paragraph about encouraging national justice institutions. I think, looking at the situation now, 15 years later, the biggest fish of all have been tried with one or two exceptions by the international Tribunal. The smaller fish have all been tried in one form or another and. We could quarrel, no doubt, about how effective Gacaca was. People often measure these things, and there was a tendency to do it this afternoon by saying, "Well, did it encourage reconciliation? Has it done this." I think that is unfair on all of these institutions. I think a Tribunal, a court system, is asked to hold trials and to decide whether people are guilty or innocent.

I think asking him to promote reconciliation, and all that ‑‑ this may be desirable ends. But if you want to assess whether he has done the job: Did you have the trials? Were people brought to justice? Were the guilty separated from the innocent? I would say that’s been largely done in Rwanda, a lot better, by the way, than in the Balkans in terms of the overall coverage, and a lot better certainly than in Sierra Leone and many, many other countries. So to me, by any measurement, that’s a great success.

The contribution of the people who worked in the international Tribunal, to that part of the battle against impunity, is an enormous one. I wanted to say that, perhaps it was already said earlier in the Conference, but I would hate to think that people who worked so hard for many years would go home thinking that their lives hadn’t actually validated too much or that they have wasted their time. I don’t believe that to be the case.

It is often said, and I heard it this afternoon on this panel and I have heard it since I arrived today, and I understand the idea was expressed earlier, that the Tribunal was nevertheless incomplete or a failure or lacks credibility because of the issue of the prosecution of the RPF. I don’t agree with that assessment. I want to speak to that in a couple of minutes, but I want to make another point first.

I think it might be useful to compare the work of the International Criminal Tribunal for Rwanda with other international justice initiatives and particularly on the African continent where we have two, the Special Court for Sierra Leone and the International Criminal Court. If we look at the Special Court for Sierra Leone, it held a handful of trials, and then largely evacuated itself from the content and went off to the Netherlands to finish its work. That has always struck me as being an indication that the Court was more comfortable in Europe than it was in Africa. I thought that was a very unfortunate development.

Now, if we were to compare the International Criminal Tribunal for Rwanda with the International Criminal Court, in January of 2005, the Commission of Enquiry that was presided by Antonio Kazazi issued its report on Darfur and discussed, after its famous conclusion, that what was being witnessed were crimes against humanity and war crimes but not genocide. It discussed the various avenues for accountability. It basically compared two options. One was to refer the cases to the International Criminal Tribunal for Rwanda and the other was to give them to the International Criminal Court. The conclusion, of course, from Professor Kazazi was, it must go to the International Criminal Court.

There is a lovely paragraph in there where he explains that the International Criminal Tribunal for Rwanda would not be appropriate because it was too slow. I gather there was some discussion about the length and proceedings and how slow the International Criminal Tribunal for Rwanda has been. But, again, you should all know that if there is ever a contest to see who is the slowest, you are not going to win. The ICC will win. It’s the slowest by a long shot. Kazazi, I joked about this with him since then. He laughs and says he regrets putting that in the report, or that it wasn’t entirely ‑‑ it didn’t prove to be true.

But we might ask today, as you know, the African Union a week about adopted a resolution that calls on the States not to cooperate with the International Criminal Court in the Darfur situation, or at least in the Bashir arrest warrant situation, that the handling of the Darfur situation by the International Criminal Court, I think, leaves a great deal to be desired. It’s been very slow. It took the Prosecutor more than two years to even request an arrest warrant. Now it has had the effect of turning the continent that was the most friendly to the International Criminal Court against the Court. It’s a very troubling and I think dangerous situation for the International Criminal Court.

The Court has been far too European European. In the first batch of Judges who were elected in 2003, 9 of the 18 were nationals of European Union States. They have reduce that had now. They had new elections late last year. Now they are down to 8 out of 16. There are two Judges missing on the Court at present from various EU countries, and yet this is a Court that essentially is judging Africans.

I think that some of the dissatisfaction in Africa with the International Criminal Court that it resonates, and I can understand that without even having to agree with all of the objections. But if we compare it with the International Criminal Tribunal for Rwanda, it has succeeded in being an African court. It has done that, better ‑‑ way better than the Special Court for Sierra Leone and a lot, lot better, even better than the International Criminal Court.

There is a model. It’s the question: Is there a model for international criminal justice? Is there something to learn? I think one part of this model is that it succeeded in being an institution that is welcomed and appreciated and respected in Africa. I don’t have time to go into explanations about everything that might account for that, but part of it is that it is full of Africans working for the Court, to start with, and that it has developed, although it’s a rocky relationship, as we all know, a relationship with the Governments who are principally concerned with its work as well. So I think that’s very positive. It demonstrates one aspect, anyway, of where this Tribunal is a model.

Now, the final point I want to turn to is what I alluded to a few minutes ago, and that is the consequences of not prosecuting the RPF, because it is said and it was just said just a few minutes ago that it undermines the credibility of the Court, that it’s a (French spoken) ‑‑ the spectrum that looms the Tribunal ‑‑ are expressions. And I think we should look at that more closely to see if that really is true. It’s said that by only prosecuting one side in the events of 1994, that this will prevent reconciliation or that it will impede reconciliation.

Again, I think we should just look at that up close a little more. This discussion doesn’t get very far without the word "Nuremberg" arising. I’ve heard, even since I arrived yesterday afternoon, Nuremberg referred to on several occasions. Often, Nuremberg is dismissed as being the paradigm for victor’s justice. I have heard that expression used as well, and I have heard it used with respect to Nuremberg.

We know this from surveys, that the United States occupation forces carried out in the 1950s in Germany, that in the years shortly after the Nuremberg Judgement, that it was considered to be victor’s justice by Germans. But I don’t believe that that’s anymore the case. I certainly don’t hear that when I go to Germany.

I lecture there frequently on genocide and other issues. I did it several times in the last year because it was the anniversary of the Genocide Convention. I was in Nuremberg and spoke in the courtroom last November at a Conference. I never heard from Germans, them saying, "The Nuremberg trial was defective, that it inhibited reconciliation because it only prosecuted one side." I don’t believe that to be the case.

I know the Germans believed it in the 1950s, but they don’t believe it now. So let’s look up close a little more this idea that if you only prosecute one side that you create terrible impediments of reconciliation. Because I think Germany, probably in all of Europe, has probably done the best job now of addressing the crimes of the past.
The question that I would like to know, and I ask people this when they talk about Nuremberg as being victor’s justice, is: What should we have done? How would we have got it right at Nuremberg? We know that we had a big trial of 24 leading Nazis. So, then, should we have had another trial of 24 leading Americans and another trial of 24 leading Brits and another trial of 24 Canadians? I just would like to know what would have looked like, to get it right?

Now let me turn to Rwanda, because I was involved in a discussion about this last year at a small seminar that was held in Florence. Amongst those around the table was Ken Rothman from Human Rights Watch. Ken repeated the call, saying that the Tribunal’s work won’t be finished until it deals with RPF. I think he cited 25,000 as the victims of the RPF crime.

Let me make it clear, I am not quarrelling with the fact that those crimes took place or that there were crimes against humanity. I am not arguing that point. But Ken made this affirmation, and then said, "Ergo, they must be prosecuted too for the Tribunal to fulfill its mandate and do its job properly." And Eric Mose, who was around the table, sort of speculated about this, and Eric says, "Well, yeah, all right. I think that’s true. We should do two or three prosecutions, maybe two or three cases. That wouldn’t be a bad idea."

I did a little mental calculation. I took 800,000, which seems to be the standard figure, at least from the jurisprudence of the Tribunal. I divided it by 25,000. I compared it with the number of cases prosecuted by the ICTR; two or three. Is that how you do it? Is that what it looks like? When we prosecuted Nuremberg, we said 6 million ‑‑ well, the Nazis were responsibile probably for 25‑ and 30 million deaths. But would we compare that with the 25‑ or 30,000 who were bombed and ^resident? Is that how we would do it? I don’t think that provides a satisfactory answer.

So I think that there should be a much, much closer scrutiny of the idea that this is causing some great harm or that the work is necessarily incomplete.

Prosecutor Jallow said in his remarks this morning that the ‑‑ and I don’t want to ‑‑‑ I may have misunderstand him or I may have remembered it wrong. But he said, the policy of the Tribunal, of the Office of the Prosecutor, is that the crimes are within the jurisdiction of the Tribunal and were properly within the mandate, I think, as I understood it.

I just want to make the point, I am not sure that was always the case. Many of you will remember, and we talked about it at the break, Chile and others, the Ntuyahaga case. This was the fellow who was charged with killing the prime minister and the Belgian paratroopers. And when the Prosecutor went for the indictment, Judge Ostrovsky said, "I am not going to give you genocide. That’s not genocide, killing a prime minister and eight or nine, ten Belgian soldiers. But I will give you war crimes or crimes against humanity." Prosecutor Arbour said, "Well, then I am going to withdraw that. I am not going to proceed with that. I am not going to spend my time on this because I am here to prosecute genocide." I could be wrong, but I think that I got this also from Prosecutor Del Ponte’s memoirs, but my impression was that that really begins in 1999, that idea that this is very much part of the prosecutorial agenda.

My own conclusion from this on the Rwanda Tribunal is simply that I am not prepared to say that it is a failure or that it’s defective because it doesn’t do this. I think that it’s a very sour note to conclude with in an assessment of the Tribunal to make that conclusion.

Let me just say, and I am sorry if I have to go on one or two more minutes. It’s a lot to ask of an academic, to sit quiet in a room and told they have four minutes to speak.

I think that the problem is not just a problem of the ICTR. It’s been an issue at the Yugoslavia Tribunal, as we all know. Do they prosecute Muslims? Do they prosecute Serbs? Again, do they get the balance right? Nobody’s happy, by the way. Every side complains that they didn’t get balance right. So I don’t know if the balancing exercise ever gives you reconciliation because people always thinks you’ve got the wrong balance. You are not further advanced by doing that, particularly. It’s not my impression.

As Lars has just mentioned, we have the same issue at the International Criminal Court. I am more and more of the view that this idea that we are going to eliminate the politics from these determinations ‑‑ because people said at Nuremberg, "That was political. That was the victors choosing who to prosecute."

When the Yugoslavia Tribunal was set up, people said, "We solved that problem now. It’s an independent prosecutor. We solved it." But we didn’t solve it. And they said with Rwanda, "We’ve solved it because it’s an independent prosecutor." We haven’t solved it. We still have the problem of choosing whom to prosecute. It’s not like national justice where you prosecute every serious crime against the person. You have to choose. It involves political determination.

Now we have got this situation, dramatically, at the International Criminal Court where you have got to choose not only whether to prosecute the rebels or the government but whether to even go into Afghanistan, although we all know that the Prosecutor is going to go after the Taliban in Afghanistan and not the other side in Afghanistan, whether to go to Colombia, whether to go to Gaza, and so on.

My concern is that I think it’s a lot to put on the shoulders of people like Mr. Jallow and Ambassador Del Ponte to make those determinations, or Prosecutor Moreno‑Ocampo. I think it’s asking too much of them to say, "You are independent. There is no politics in this." But if there is politics, then there has to be more political guidance.

I think we are more advanced in addressing this, but I am not sure the way out of it. If we acknowledge that it’s political rather than what we do now is be in denial and aspire to some unattainable equal justice that I think is just not realistic, we are never going to get there.

When the Rome Statute was being drafted, we resisted the political influence. We said, "We are going to have an independent prosecutor." We created the strongest mechanism of any international criminal institution to enhance that, to protect that. A Prosecutor with a nine year mandate, untouchable in many respects. Some people regret it now, and say, "How do we control this man?" But he is the run‑away Prosecutor.

Fine. We wanted that, and we did it. It involved ‑‑ because we saw ‑‑ and I remember this. I was at the Rome Conference and in the preparatory meetings. Because the alternative that was being offered to us was the Security Council control, and we hated the political oversight of the Prosecutor because we hated the Security Council.

I think that that distorted a little bit our perspective on it. We threw out the whole idea of some kind of political guidance to the process because we were afraid that that was going to be with the Security Council and that means, with the five permanent members, depending on how you look at it ‑‑ I know that in France they talk about the three permanent members and in Britain they talk about the two permanent members. But you all know who I am really talking about. Thank you.


Thank you. At least you managed to break a record in time management for an academic.
We will continue to follow the example of the academics that rarely agree. Clearly, from those short presentations, what can be gathered, and which was also a subject of stakeholders, is the collection between justice and politics, which is an important point that deserves discussion here.

We have the opportunity to have a broad spectrum of stakeholders. And it has been stated, and Antoine said that those relations are pretty close for a simple reason, because justice is an offshoot of politics and in return justice conditions politics.

This is obvious in national law and more visible in international law for a simple reason, that is, the omnipresence of the State as an active stakeholder working more dominantly compared to all the other international stakeholders. I would like to mention that when talking to my students, I always quote Paul Reiter who summarizes the issue properly. He said, "States are corporate entities who are not really persons or moral entities." This highlights the challenges and difficulties of justice and politics. As we try to refocus on this issue, which is not quite a problem, but which could be a problem, namely, are the State as a key stakeholder in the international arena? I believe that we need to deepen this issue in the course of our discussions.

I would like to give the floor to Mr. O’Donnell who has requested to speak in respect of the link between justice and politics and specifically on some crosscutting aspects of that tandem.