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What's the issue?

International courts have been set up - for the first time since Nuremberg in 1945 - to judge the genocide in Rwanda and the wars in the former Yugoslavia, while European prosecutors have attempted to make Pinochet stand trial. Do we need a worldwide human rights court, with its own powers of arrest, giving no safe havens for former dictators? Or should sovereign states be left to make their own political and judicial settlements?

What people think

Transcript:

This programme in the 'I have a right to...' initiative was first broadcast on 3 November 2000. It was presented by 麻豆官网首页入口 World Affairs Correspondent Rageh Omar and produced by Charu Shahane.

SYLVESTER MWANZA:
"After the genocide I realised that Rwandans are in total darkness and we need some light somewhere and I was among the first to convince myself that one day I will speak the truth and I would call on other Rwandans to speak the truth".

More than six years after the genocide in Rwanda there is still a sense of disbelief amongst the victims and even among some of those who committed the murders, like the man you've just heard. In 1994 an estimated eight-hundred-thousand people were killed in one-hundred days in this central African country. Now there are about one-hundred-and-twenty-thousand men and women in prison awaiting trial for their involvement in the massacres. Entire communities were killed and entire neighbourhoods participated in the massacres. But Rwanda's genocide was the only worst in a series of massive crimes committed globally in the half century since the Second World War. So, more than fifty years after the Holocaust the world is reconsidering how it can bring to justice the perpetrators of such atrocities. In this programme I'll be asking who decides who should be brought to trial and how they should be tried.

THOMAS KAMILINDI:
"They gave me a piece of paper and a pen and told me to write. I wrote to my wife saying I love her, that she should be strong and look after the children and that I was leaving everything behind for her spiritually and materially".

Thomas Kamilindi is in the genteel surroundings of the Hotel de Milles Collines in the Rwandan capital, Kigali, he tells us about one of three occasions on which he was nearly killed. Soldiers working for the extremist Hutu dominated government of the time allowed him to write a message before putting a gun to his head.

THOMAS KAMILINDI:
"So I wrote to my wife who was pregnant with our third child and said if God wants you to you will have the baby. By that time I didn't know about my first born because she was not with us. I mentioned my three children and told me wife to start her life again if she survived. I said don't be alone, carry on, keep going".

Thomas Kamilindi had resigned from state run radio a few months before the genocide started. He knew what was coming. As a journalist with a radio station run by the Hutu dominated government of President Habyarimana he had sometimes been asked to broadcast news repugnant to him. Messages like these, in which the minority Tutsi ethnic group was referred to as "cockroaches" and in which the Hutu majority was urged to "wipe out" the Tutsis.

During the massacres which followed President Habyarimana's death in an air crash, Thomas Kamilindi was among the many liberal Hutus accused of sympathising with the Tutsi led rebel forces of the Rwandan Patriotic Front. When the killings began they were battling their way to the capital to take over the government. A Hutu married to a Tutsi, on one occasion Kamilindi was saved by a commander who happened to pass by just as a soldier pointed a gun at Kamilindi's head.

THOMAS KAMILINDI:
"The soldier told everyone to pull back because he was going to finish me, but curiously I was not scared. I was prepared for death. It was like a dream. This guy pulled the trigger and just then miraculously a tank arrived while the gun was at my temple. It was like a movie. The commander in the tank shouted "Thomas what's going on?", I turned to look at him and said "They want to kill me".

The commander stopped the killings. Later Thomas Kamilindi discovered that his five year old daughter had been murdered while on a visit to her Tutsi maternal grandparents.

THOMAS KAMILINDI:
"It is very difficult to put my life experiences behind me and to forget. I and my wife live with it all the time. It is part of me. Sometimes I shut myself in a room and cry when I think about my first born, my little girl Mamee. It's difficult when you know you were about to be killed and you survived but your child was killed".

Kamilindi was one of the Hutus targeted, but the victims if the 1994 massacres were mostly Tutsis. They were killed with guns, machetes, sticks and stones. In churches, in schools, in courtyards or in their homes. When the bloodshed stopped there was an uproar about the international community's failure to do anything about the horror. The United Nations set up the International Criminal Tribunal for Rwanda or ICTR, to try people for genocide and other war crimes, but it only got going two years after the killings. It was modelled on a similar tribunal for the former Yugoslavia, based in the Hague. Rwanda's was located in the town of Arusha in Tanzania.

TOM KENNEDY:
"Here we are in the number one court room. The first thing that you notice about it is the rather peculiar elongated shape and this is because the building which was provided for the tribunal to do its work was obviously never conceived as a court house and so we've had to improvise court rooms in the available space and the result is a long shoe box like shape".

Head of Public Affairs, Tom Kennedy describes the ICTR's spanking new court room in an office building in Arusha. It was hard getting a fully equipped international court up and running in a small country with poor infrastructure. But the most difficult task of all was defining the crimes that tribunal was going to try.

JUDGE PILLAI:
"Genocide seems such an emotive journalistic kind of word and judges don't do that. We need to know precisely what is this crime. We all understand murder, for instance, has to be accompanied by the intention to kill a person. So what is genocide?".

Judge Navanetham Pillai, the President of the Tribunal and head of panel of international judges at the ITCR.

JUDGE PILLAI:
"We are to examine the intention, examine the elements, define, for instance, what is an ethnic group in the Rwandan context. Just think of that difficulty alone. They all look alike, speak the same language, follow the same religion, live in the same areas, inter marry and even live together. So what is the character that defines this group as an ethnic group?".

Beset by difficulties the International Criminal Tribunal for Rwanda created a controversy from its inception. The new Rwandan government was perplexed by the decision to locate the tribunal outside Rwanda. It said survivors of the massacres needed to see justice being done. But the UN feared the tribunal would not be free from political pressure in post genocide Rwanda. Later there were questions raised about the tribunal's efficiency and transparency. But by far the most controversial subject was who was being tried and how?

JUDGE PILLAI:
"I can understand the emotions and sensitivities of the Rwandan people, when they heard that the tribunal has released someone whom they wished to see brought to justice. I come from South Africa, suffered under apartheid and emotionally we would hate to we would hate to see someone not tried".

Judge Pillai on the case of Jean-Bosco Bariyagwiza which caused an outcry when the accused was released, not for lack of evidence, but because his lawyers successfully that his rights had been violated by the length of his pre-trial detention. The Rwandan government was outraged at the release of a man accused of running a hate radio station which incited the killings of Tutsis. The case outlines the difficulties of bringing justice to a country traumatised by war. On the one hand there is a UN court trying hard to meet rigorous international judicial standards, on the other there are angry survivors, led by a government at least party composed of former rebels. Barayagwiza 0will now be tried after an appeal court admitted the case, although he says he will boycott the hearings. But the International Tribunal has been tainted by the allegation that it succumbed to political pressure. The ICTR's spokesman, Kingsley Moghalu denies the charge.

KINGSLEY MOGHALU:
"The whole decision was reached on the basis of law and nothing else. There might have been a coincidence with the feelings of some people, but I can assure you that this is an independent court and simply cannot operate on the basis of public opinion. Politics plays no role in the decisions of the judges. You must understand something. There is a balance that needs to be addressed between the human rights of the accused and also the rights of the victims and also the importance of arriving at the justice of every situation and I believe that the justice of the case was served".

But is justice being served overall? An additional charge against the ICTR is that it hasn't prosecuted any members of the Tutsi dominated Rwandan Patriotic Front or crimes they allegedly committed later that year. The chief prosecutor, Carla del Ponte, says it's not a priority.

CARLA DEL PONTE:
"We have a lot of litigation to achieve and we must set priorities and I'm sure you agree with me that the genocide which was committed in April 1994 is the main (subject for) investigation".

So, clearly although everybody has equal rights in the eyes of the law, the claims of those who have suffered more are taking precedence over those who have suffered less and it's not hard to see why they would. Despite its limitations Kingsley Moghalu says the Rwanda war crimes tribunal has made a significant contribution to international justice.

KINGSLEY MOGHALU:
"This is the first international court to render judgements for the crime of genocide, the first international court to bring to account the former head of government, the first international court to rule that rape is a genocidal crime. It's a global institution, but it is based in Africa. But it's not peculiar to Africa because the crimes in the Balkans were not committed in Africa. The alleged crimes in East Timor were not committed in Africa, the crimes in Cambodia were not committed in Africa. The world is still full of pockets of impunity and this tribunal is part of a vanguard that is making the statement, there will no longer be impunity. You will answer for your crimes".

Inevitably there are comparisons with the International Criminal Tribunal for the former Yugoslavia, the only other such tribunal set up to investigate war crimes since Nuremberg and Tokyo after the Second World War. Carla del Ponte, who was chief prosecutor for both tribunals says the Yugoslavia trials are simpler because there are far fewer people accused of war crimes. But it hasn't yet done what Rwanda has, tried people at the very top of the chain of command.

CARLA DEL PONTE:
"The most upsetting in our work in the Hague is non-arrest of the fugitives and the most important fugitives and it's much more surprising if you notice that the territory is controlled by the military and NATO. I am always trying to find out why, what is the reason they are not arresting (people). But so far I have no real response on this question and so we will see. But I have many fugitives in Bosnia Herzegovina and the Republic of Srebska. I always spoke with NATO about this, especially I spoke with the governments of the nations who are members of NATO, trying to obtain these arrests and trying to find out why it's not valid".

Many of Rwanda's alleged war criminals have been handed over by the countries they have sought refuge in. While the tribunal for Yugoslavia is still looking for many of its top criminals. Brining people to trial is more political than human rights campaigners would like it to be. So many of them are trying to make it less political by setting up a super national institution, the International Criminal Court. Amnesty International's Christopher Hall is a leading campaigner:

CHRISTOPHER HALL:
"This is a very important even. Perhaps it's true significance is that no longer are these crimes seen as simply political events to be solved by politicians and diplomats. But as ordinary crimes, just like murder or rape or assault, to be prosecuted".

But the ICC hasn't yet taken shape. In Rwanda the tricky business of bringing to justice alleged war criminals continues. Here the rights of the victims are pitted against those of the alleged killers. The International Tribunal has indicted around forty people so far, the people in position of power at the time of the genocide. In Rwanda, where the national courts are also trying alleged 'genocider' as they are called, there are nearly one-hundred-and-twenty-thousand people in prison. The dilemma is how to keep the prisoners in gaol without violating their rights to a speedy trial. But when I spoke to him, the country's President, Paul Kagame, said letting them go would be unthinkable.

PAUL KAGAME:
"Alright we do have one-hundred-and-twenty-thousand people in prison, but you have to understand their responsibility that put them in prison in the first place. You have to be aware that these are people accused of having murdered one-million of our people in just a hundred days. And you have to fully understand the responsibilities they have for the genocide in this very serious tragedy of ours".

So you would say the prisons are full, but the graves are also full?

PAUL KAGAME:
"Yes, they are more than full, the graves are more than full and one has to understand which is graver than the other. Is it having the prisons full or is it having mass graves everywhere you move in the country? I think people need to look at the comparison and understand the magnitude of our problem".

Rwanda says its domestic courts are making some progress in sentencing people - more than two-thousand in the three years since trials began against the International Tribunal's eight. In the early stages at least international lawyers felt uneasy about the speed of these convictions. Could they all possibly all have been fair? Such criticisms have died down, but a remaining source of discomfort is the maximum sentence. In Rwanda it is the death penalty and the government horrified human rights campaigners by executing twenty-two people in public in 1998. At the International Tribunal the maximum sentence is Life. The ICTR's President Navanetham Pillai is unapologetic, saying the death penalty is anathema to most international jurists.

JUDGE PILLAI:
"This is a UN tribunal, the year 2000 and that is the penalty imposed here. I do hope that countries like Rwanda and other countries in the world will, like my own country, South Africa did, do away with the death penalty. Instead of them asking the tribunal to change, which is not possible because the UN has a particular position on penalty. I think they should examine whether the death penalty is the most effective penalty".

The norms of international justice again at odds with the national mood. Rwandans say it is ironic that the leaders who directed the massacres will only get life whilst thousands who followed their order might die. The tension between Rwanda's national and international judicial systems continues, but there is much sympathy globally for Rwanda's plight. At the current pace of justice it will take about sixty years for all the cases to be brought to trial. So Rwanda is trying to speed up the process.

(CREAKY DOOR)
This particular floor contains those who have been sentenced to death.
Rilima Gaol in Rwanda. A two hour drive from the capital, Kigali. It is literally crammed with prisoners. More than seven-thousand suspected criminals are held here in facilities meant for just over two-thousand. As in other Rwandan prisons holding alleged genocider security is light because these people have nowhere to run to. These prisoners are on death row and prayers are one way of making their peace with God.

As we pressed our way through courtyards and rooms bursting with sullen, hungry men and women, some of whom are undoubtedly remorseless murderers, it is easy to understand why the International Tribunal's detention facilities are sarcastically called "the Arusha Hilton". Rilima's conditions are terrible.

But the prison is involved in an extraordinary experiment, the revival of a traditional village based system, known as Gachacha. Here murderers who have confessed to their killings are sitting in judgement on those who have yet to plead guilty. The Gachacha hears about the murder of a man called Wyimana. The panel of judges and about five hundred prisoners hear one man defend himself against charges of involvement in the killing. Members of the audience are urged to speak out, to say what they know. In little more than an hour and judgement is reached.

VOICE:
"He reached the crime scene and he saw the people who killed him but he still hid the people behind murder".

The accused is found not guilty of involvement in murder, but is judged to be concealing the identity of the real killers. Sylvester Gashagaza Mwanza is the head of the Gachacha system in Rilima prison.

SYLVESTER MWANZA :
"The purpose of the trial is to establish and to speak the truth. Hopefully one day the country can be reconciled".

Sylvester had confessed to killing three women and one child in 1994, but because his remorse is thought to be genuine he's been made head of the Gachacha prison trials. Rwanda's Minister for Justice Jean de Dieu Mucyo told us why the government had to take such extreme measures.

JEAN DE DIEU MUCYO:
"We found that if you try these people in the normal way you end up giving the death penalty or the highest punishment to everybody, everyone who was collectively involved in the genocide. We will end up of hundreds of thousands of people in prison, it's an impossible situation. If these people participated fully in the killings, why can't they participate fully in the judicial process? Because everything happened in the open, everyone knows who did what".

So village communities will sit in judgment on each other. Far from being alarmed at the prospect of a people's court, the prisoners in Rilima say they were delighted when the system was proposed.

SYLVESTER MWANZA:
"We were very, very happy. The Minister himself visited us with his officials. In comparison to the speed of normal trials we are reaching somewhere significant".

The Gachachas will undoubtedly speed things up, but the government hopes it will also mimic South Africa's Truth and Reconciliation Commission and start a healing process.

JEAN DE DIEU MUCYO:
"You cannot have justice without reconciliation. That's why the Gachacha has a system of participation, where all the people gather at one place and focus on the level of crimes of different people. You will find some people who are more guilty than others. All this time we have been asking people from villages to come to the court, now we take the court to the people. People will see it and discuss what happened, who did it, who stole what, who looted what, who died. Once you have found out the truth, you get a form of justice".

Rwanda's killers certainly approve. Sylvester Mwanza says he killed out of fear. It was either kill or be killed, but he's sorry now and the only way forward is to reintegrate people like him into society.

SYLVESTER MWANZA:
"After the genocide I realised that Rwanda was in total darkness and we need some light somewhere and I was among the first to convince myself that one day I would speak the truth. I think if we have the spirit of forgiveness and consider what happened and why it happened, that will be a stepping stone to take us forward. People like me must conduct ourselves with humility".

Of course not everybody in Rwanda is as enthusiastic about Gachacha:

IBUKA CONGRESS:
This is a meeting of a genocide survivor's group called Ibuka or 'Remember'. Its former President, Freddy Mutagwera says the group has accepted the Gachacha, but doubts that it will bring justice to the people:

FREDDY MUTAGWERA:
"In some villages, for example hundreds have been killed and we are going for Gachacha to chose among the people that we find from the village, so there is a high probability that you will choose people who have been involved in the genocide. and we are going for Gachacha to chose among the people that we find from the village, so there is a high probability that you will choose people who have been involved in the genocide".

In some villages all that Tutsis have been killed, says Freddy Mutagwera. So who's going to sit in judgement on whom? His worries are shared by some outside the country, like Judge Pillai. She thinks the Gachchas might turn into witch hunts:

JUDGE PILLAI:
"It is very attractive to have a village hearing where the village determines what kind of rehabilitative remedy. I was witness to some of these community courts or township courts operating in South Africa during the transition and they were just awful, because people took it upon themselves to hang people, to place burning tyres around their necks. So as a judge I'm very cautious about that, I would say why don't you have a tried and tested legal system where guilt is proved beyond reasonable doubt?".

But the real problem with the Gachacha system is that the guilty will not be punished in any significant way. In effect the hearings will lead to an amnesty, although Rwandans don't call it that. While many people might recoil from the thought of letting off killers, some amnesties can be quite valuable, says human rights lawyer, Professor Christine Chinkin:

CHRISTINE CHINKIN:
"I think a lot depends on just what the amnesty actually is. If it is just a blanket amnesty given to everybody without any further enquiry, I think it does very little for any future reconstruction of society. Where you have an amnesty that is coupled with some sort of truth process, with a requirement that people admit their guilt, admit their complicity, involvement, may even have some sort of addressing with the victims, then it may be more effective. The most obvious model is the South African model where people were required to make admissions of guilt. That becomes far more realistic than say the Chilean situation, where amnesty was essentially just asserted without any attempt at all to examine what had actually happened".

Rwanda says it is getting it right, the Gachachas will establish the truth at public hearings involving the victims as well as the criminals. What's more they will run alongside the domestic courts and the International Tribunal. The Rwanda and former Yugoslavia tribunals have given other countries ideas on how they can end the culture of impunity, says Judge Navanetham Pillai.

JUDGE PILLAI:
"We've seen Chile now, the Supreme Court has confirmed that General Pinochet is no longer entitled to hold immunity from prosecution. The prosecutors in Spain have been very actively examining crimes against humanity committed by individuals in other countries. Switzerland has tried one individual for having committed crimes against humanity in Rwanda. These are all the new developments and in my view they float from the establishment of these two ad-hoc tribunals. The international criminal justice system turns into reality the notion that the rule of law will prevail from now on globally".

But campaigners say it will only flourish internationally if it can be divorced from narrow national politics. That's what the International Criminal Court is hoping to do, free international criminal justice from the strangle hold of politics and diplomacy. The court will try individuals for genocide, war crimes and crimes against humanity where ever the offences take place. It will be able to act when states are unable or unwilling to do so. Kingsley Moghalu of the ICTR says it's one of the most significant developments for human rights since the Second World War:

KINGSLEY MOGHALU:
"It will be a coalition of the willing to say that now there will be a standing court to punish impunity, no matter who commits these crimes. I think this is a very salutary development and it shows the globalisation of international criminal justice and the democratisation, I hope of it".

Some countries have their reservations about the ICC. Most notably the United States, India and China, which either don't want their citizens to be tried by a global court or object to the supremacy of international law over their own. But human rights campaigners say the International Criminal Court does not replace national courts. It is in addition to them and it may demonstrate to the perpetrators of war crimes and to governments, that in a world where there is a standard International Court, there is nowhere to hide.

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