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contribution 16 - GUICHAOUA, André

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ICTR assessment - Historical legacy

André GUICHAOUA

transtlated version

Let me start by sayings that even though the idea to organize this symposium came from a small group of persons, let us not leave it at that. To put it clearly, when we discussed the idea of convening this symposium, the issue was discussed with officials of the ICTR. I didn’t say so before, but let me say so now very clearly, at the end of 2007, when we discussed the issue for the first time, I discussed it with Prosecutor Jallow, with Mr. Dieng, Judge Møse, Roland Amoussouga and also Richard Karegyesa, and everyone was unanimous of the idea. So it is not a Guichaoua symposium. I am sorry. It is first and foremost an ICTR symposium. I insist on this for a very simple reason, that it is focused on the ICTR and the persons who have managed the ICTR along the line. That is how this symposium is being held. So I really insist on saying it.

And I may add a few more points, because if the symposium has gone the way we wanted, it is because all the guests around the ICTR, in quotes, have agreed to go along. And I believe that it is very true that over the past two days we’ve heard statements that some persons may consider surprising but which were not very common.

Still on that score, I would like to thank Prosecutor Jallow for what he said this morning. It was important. And I believe that instead of having one on one discussions, what was said this morning, was important to be said publicly. I mean, from a personal standpoint, I may not entirely endorse what he said, but as far as I’m concerned, a prosecutor is independent. We are academics. We are not responsible for prosecution strategy. So I believe that what was said, I may have reservations, but I understand.

I may go even further by saying that what makes our "attachment" to the ICTR and our investment in the institution, because it represents something to some of us, it is not necessarily the success or the failure of the ICTR, but the fact that it exists. The fact that it exists in such a depressed area as the Great Lakes, the ICTR represents a ray of hope. It represents a landmark as far as its functioning goes. I believe it is very useful and important to say that regardless of any points of reservation that we may express, the ICTR is a moral institution that is necessary for that region. And for that reason we have to believe in it, in quotes. And even though it may be hard for some people to believe in it, but we need to.

Let me add again that the ICTR is not accountable for the errors of the international community. That is why it was set up. And if there is an independent prosecutor and an ad hoc statute, it was to state that it was a moral institution that wasn’t responsible for the errors of the others and its duty is to try independently the authors of the crimes committed in this conflict.

So I will continue with other points. The comment on victims present at this symposium. We are sorry, we wanted to invite persons involved in the management of the Tribunal. We also said that we were not inviting institutions. We invited victims as they were represented at the Tribunal and they participated actively at the debates.

I would like to mention that some persons are absent, as some persons have pointed out. We assume that effectively representatives of the Rwandan prosecutor’s department and other authorities are not present here. On that score again, I think it is important to say that Prosecutor Martin Ngoga and the representative of Rwanda to the ICTR, Aloyse Mutabingwa, and Ambassador Vénantie Sebudandi were invited. They were invited since April 2008 and had all the time to make all provisions to attend this meeting. Now, if they are not here today, I believe sincerely that we all regret it, because I believe that it would have given rise to another debate with persons who also have strong arguments and who could also defend them here. But that is how it went. I take their decision for what it is worth, and I think we should just take it as it is.

Another point. A few years ago a RPF spokesperson came out in reaction to something I wrote, that they could not imagine that in a Tribunal, at the same time the killers and the victims could be tried at the same time in the same Tribunal. As far as I’m concerned, I may even admit that the Prosecutors and the Judges considered it necessary not to mix up crimes which are considered to be of different characters and to dwell on the prime issue of genocide. I am ready to admit that.

And as an academic or as a witness, I’m ready to say that we are not accountable for prosecution policy. However, what we are responsible for, in my opinion, and that is where we will have to establish our credibility, is to try to speak the truth, not the truth as established by law, but like in the researchers’ reports, how it can be when it is validated in the legal context through contradictory debates.

And on that score, I believe that things are quite easy. What we academics are asked for is to be able to contribute to writing what happened. But when I say so, what really makes me uncomfortable is not whether the RPF was tried or not, it is that the ICTR constitutes a specific objective and that it bases itself on its own exclusive conception of genocide.

It was perfectly possible to try only genocide, recognizing that genocide is only one element of a civil war. Now, the ICTR, in the elements of truth in what it tried, it made genocide an object that it could no longer situate in a war together with the other elements that make up the war. Only in 2008, during the Bagosora judgment, this distinction was clearly said. This goes well beyond the fact to ask that the hangmen and the victims be tried at the same time and in the same area, as they say in Kigali.

To me, I think it is up to us now. Our time schedules are not the one of the ICTR which will conclude its work inevitably, whether it is in a year or in several years. It has to end some day. But the truth that we are supposed to produce as academics is not for 2004, 2005 or 2010. It is expected to be established over time.

To give a personal example, in the early ’70s I was supposed to begin my career in Chile. I was not able to go there, yet I had worked to prepare to move to Chile for over two years. And that example has always marked me because 30 years after, the one who took over power was tried.

That is why I personally feel that I’m not in a hurry. The ICTR may close down, but the truth will be built up, it will be written, and if at some point the speeches are not being heard for political or ideological reasons, in any case, I believe that those who will ultimately win out are those who would have written and provided the best elements to establish true history.

It is not possible that some lying history can survive. It is not up to us to see who is speaking the truth or who is lying. It is future generations who would revisit all this material and witnesses and establish the truth. Personally I feel that the only thing we can do now is not to establish blame or say that the ICTR has not done this or that, but to work in our own areas and build what we are able to build, that is, elements of truth, and see whether it can stand up to criticism in the future. Thank you.

Vincent CHETAIL

I believe we have three more speakers, and I will ask them to be very brief.

Now I will give the floor to Mr. Eboe Osuji on the distinction between ordinary crime and international crime, as we discussed before.