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Since 1994, when it was set up, the ICTR has completed hearing 20 cases. Of those cases, I think 12 are still awaiting appeal, and the appeals have to be made to this complicated joint appeals court that is in the Hague. So let's say that eight of these, at least, have gone completely through the first level of trial and through the appeals; another 12 are awaiting appeal or undergoing appeal as we speak now.
So, think of roughly $1.2 billion dollars having been invested in this court so far -- and I would note that it's very, very hard to actually get the budget for the court, because there are things that are seconded to the work of the court, from national governments, particularly, the work of people. And there are something like 872 staff people on the payroll and they are paid extremely competitively by international standards. So, it is an expensive thing to run a big series of trials like this -- over $1 billion. And they have completed, through the appeals process, eight cases. And they have completed at the first trial level, a further 12 cases. It is not a great value for money.
And there are more cases to come?
They have a further 22 people awaiting trial and 20 currently on trial at the court in Arusha. So at the end, when they wrap everything up, they will have tried about 60 people. Among the indicted, there are about 10 who are still at large and no doubt somewhere far from Tanzania and Rwanda.
Last April, I spoke with a Rwandan friend of mine, a businessperson. And I said to him that at least the court has incapacitated those people from the genocide's leadership who otherwise could have reconstituted that leadership and organized a comeback inside Rwanda. He really dismissed that notion. He said there are 200 people in the top leadership, and they only ever went after 60 of them. The genocide's international organization is still out there. I think that's true. I see traces of it everywhere. But I do think that the fact that there has been this international prosecutions attempt has certainly made it far harder for them to reconstitute and come back.
So that is one partial achievement of the court, a partial incapacitation of the ability of the genocide's leadership. That is not insignificant.
And I also want to mention the ICTR's achievements at the level of the development of international criminal jurisprudence, which is mentioned by a lot by people. For example, the ICTR got the first-ever international conviction on a charge of genocide. And the court got the first-ever conviction in international criminal jurisprudence for rape as a war crime.
It's a sort of an abstract significance. People haven't stopped committing rape as a war crime, people haven't stopped committing genocide. But it is a mark in the sand. Hopefully, over time, the international community can firm up those kinds of norms.
And yet, again, I'm just not sure that this amount of investment has been a worthwhile investment to do this. If you think about how $1 billion could have been put into other kinds of programs. For example, Rwanda's own criminal justice system cries out for rebuilding, and so do those in neighboring sub-Saharan African countries. There are social programs that you can put in place that will reconstitute societies in a wholesome way, where war crimes and genocide will not get committed, rather than people being so desperate and so caught up in such terrible conflicts, that they lose sight of basic humanitarian norms. And so I think the record is mixed, definitely.
When is the court expected to complete its work?
The U.N. Security Council, which has been looking at the ballooning budget for this court and for the Yugoslavia court (the International Criminal Tribunal for former Yugoslavia, ICTY) has said they have to wrap up by 2008, which is entirely appropriate. Witness testimony loses its power and credibility with every year that passes. And we're talking about witnesses who were living through very traumatic times then, and now are called to give absolutely ironclad testimony about the details of events that happened 10 years ago. And another really tragic part of this is that many of the witnesses are dying of AIDS.
You were in Arusha in April of 2003 and spent several days observing the tribunal's work. You sat in on some of the cases, and spoke to prosecutors, judges, defense counsels, and other close observers of the court. Can you talk about some of the challenges that they are facing?
I think they have made some progress under the present Chief Justice Erik Mose of Norway. I think he is consciously trying to be a good administrator of the court and has administrative skills that his predecessor didn't entirely have. Having said that, the challenges are almost insuperable.
You go to this courtroom, set in the middle of a bustling African market town, and here are people enacting these strange rituals of a European-style courtroom. I was looking at this whole thing through a sort of anthropological lens and it seemed so bizarre, so weird, that you have these people here who normally practice in British-style courts and are wearing their little powdered wigs and all the lawyers and judges wear long robes. They all wear little lacy bits at their throat, which is something that happens in French courts. To see them going through all these rituals of people coming into the court in an orderly fashion and standing and rising and sitting, and "My learned friend" this, and "His Honor, the Judge" that, in the middle of this African market town, it just strikes me as bizarre.
Of course, there are many other bizarre aspects to it. These people are all getting paid on international pay scales, which is quite appropriate. To be frank, somebody who's getting that much money, it's an almost unreachable amount for an attorney apart from the U.S. legal system and the British legal system, where attorneys are routinely fairly well paid. For people coming from other European countries, or from any other part of the world, earning that kind of money is an amazing windfall.
There is this underlying and very disquieting sense, when you visit the court, that a large proportion of the people who are doing the work there realize it's a kind of gravy train. The longer they can keep it going, the better for them and their families and their communities back home, to where one hopes they're sending generous remittances.
You have been researching the legacies of violence and in the course of that you have visited several countries. How has this informed your thinking about the ICTR and what it represents?
What I'm doing is I am comparing three countries that all took significant decisions in the early 1990s about how to deal with the legacies of atrocious violence. The three countries are: Rwanda, where decisions were made at both the national level and the international level; South Africa, where the decision was made at the national level; and Mozambique, where the decision was made at the national level with a lot of support from the international community.
Rwanda was the society that opted most strongly for a criminal justice approach, at both the national level and the international level with the ICTR. In South Africa, at exactly that same time period, you had the Truth and Reconciliation Commission (TRC), which offered conditional amnesties to individual perpetrators, who were able to convince a committee of the TRC that they had told all the truth about what they had done. It was amnesty in exchange for truth-telling and revealed an enormous amount of truth, though not all of it, about the terrible excesses that had been committed under Apartheid.
But, South Africa's was a very victim-centered process. If you recall, the most moving parts of those TRC hearings were where the survivors of apartheid-era violence got to talk about the terrible effects for them and their families of those killings and mutilations.
In the ICTR, it is not at all victim-centered. Like all criminal justice proceedings, it is all focusing on the individual perpetrators. This individual -- did he or she commit this act? That's the only question. The victim or survivor of that violence comes in only as a witness, and is subject, as such, to hostile cross-examination. So it's just very different from what happened in South Africa.
You have written about how the current Rwanda government distrusts the ICTR and the Tutsi-dominated government has, in your words, "constrained important aspects of the court's work." What is this about?
After the genocide, Rwanda's new government wanted an international tribunal, but they had severe criticisms. One was that they wanted it located inside Rwanda. Another was they wanted the court to have the death penalty, which is in the Rwandan criminal code. And the Rwanda government has had their own prosecutions -- many scores of thousands of suspected genocidaires, right up to, but not including the accused ringleaders. And after trial and conviction, they have executed around 23 individuals -- high-level, but not absolutely top-level participants in the genocide. To them it is quite bizarre, the ICTR not having the death penalty.
But the norm in international law, although you might not think it here in the United States, the norm is against the death penalty. There are international conventions against the death penalty. The ICTR, as with the ICTY, has no death penalty; the maximum sentence is life in prison.
Was the ICTR located outside Rwanda chiefly because of the death penalty issue?
No, not really because of the death penalty issue. Things in November 1994 were still a little unstable in Rwanda. Rwanda was still a traumatized society. There were good reasons, perhaps not compelling reasons, for the Security Council establishing it outside of Rwanda. And the reason the Rwandan government wanted it inside was to have more control over its work, which has been an issue.
The ICTR prosecutor -- there have been three prosecutors -- until recently was served as the Chief Prosecutor at the ICTY.
The three chief prosecutors for the ICTR: Richard Goldstone, Louise Arbor, and Carla Del Ponte had all insisted on the right to pursue investigations into the alleged wrongdoing of the Tutsi-dominated Rwandan government, and their forces. Nobody credible is accusing the Rwandan government of having committed genocide, but the mandate of the court includes, along with genocide, war crimes and crimes against humanity. There is some fairly credible evidence that the present Rwandan government, and the forces allied with it, committed war crimes and crimes against humanity at various points.
And so those three earlier chief prosecutors -- who each served as prosecutor for both the ICTY and ICTR -- had always reserved the right to pursue those investigations and perhaps to issue some indictments against people affiliated with the Rwandan government -- just as in, for example, the ICTY there have been indictments against Muslims, Serbs and Croats. Therefore, the ICTY has established a formal objectivity, which so far has not been established by the ICTR, where all the indictments have been against people who are Hutus accused of having committed various atrocities against Tutsis.
So the possibility of investigating people in the present government has been the sore point.
That certainly has caused problems at various points in the past. However, late last year, the Rwandan government, with the support of the U.S. government, succeeded in getting Carla Del Ponte taken off the case for the ICTR. As of last September, the ICTR has its own chief prosecutor, and he is thought to be somebody who is not going to pursue this idea of what are called "special investigations."
Let's talk about the gacaca courts which were introduced in 2002 in Rwanda. What are these courts and what is the idea behind them?
As I mentioned earlier, at the national level, the Rwandan government had launched a widespread campaign of prosecutions against suspected genocidaires. And, as part of that, they detained huge numbers of suspected genocidaires. And when I say huge numbers, what I'm talking about is around 135,000-140,000 people actually detained in a country of 7 million. It is just a huge burden on any society. All of these people would be obviously of breadwinning age and capability. And they are removed from productive labor and from being able to provide for their dependents.
In addition, for the government itself to be able to keep 140,000 detainees alive -- let's not even say in decent conditions -- it costs a lot of money. And at the beginning, the conditions for these detainees were really atrocious. Many of them died of tuberculosis or gangrene. The descriptions of those lock-ups and detention centers are really horrific to read.
Over time, they managed to regularize things a little bit, but still there was this massive task, because the Rwandan criminal justice system itself had been pulled apart by the genocide and by all the fighting. They didn't have the means at all to run the trials or even to have preliminary detention hearings. And evidently, under those circumstances, many people were in the lock-ups because of mistaken identity, or because of false accusations launched by jealous neighbors who coveted their cows or their vineyards, or whatever. The government had no mechanism for sorting through those accusations and/or these cases of mistaken identity.
So about 1998, Paul Kagame, who has always been the effective leader of this government in Rwanda, and who is a smart and well-intentioned person, he came to the conclusion that they just couldn't continue. Even if they managed to get the criminal justice system up and running, it would still take something like 200 years to run all these trials.
So the collective leadership of which he is a part decided to move these cases from the regular criminal justice system, with all its delays and problems, into something called the gacaca court system, which builds on a traditional village-level hearing system, where, basically, if I say that you never repaid a loan to me and we start fighting, and people in our village say, "Enough already, deal with it," then they all sit around on the lawn. That's gacaca -- it means "a lawn." I say what I accuse you of, and you give your defense, or whatever, and then everybody votes on it together, and then we all get to drink banana beer together. It's a community participation thing for resolving small-level conflicts.
Kagame decided that this would be integrated into the formal legal system, and that the whole country would participate in these community-level hearings. This is almost as massive an undertaking as launching regular-style trials would be. And I think they have recognized that.
They do have in Rwanda a traditional system in which once a week people do a half day or two-thirds of a day of community labor. I think Kagame's idea was that participating in these kind of hearings, it was an integration of this. But the community labor needs to get done. They're clearing drainage ditches and cleaning roads, and doing stuff that needs to be done in the community. You can't do that and participate for hours and hours at a stretch in these community hearing systems. And the idea is to have 11,000 of these gacaca courts. And each one has 19 judges; there are something like a quarter of a million people who are judges. They have all been elected.
I talked with one person there, a taxi driver who had been elected as a judge. He said, "It's a huge burden on my time." Every hour that he has to spend doing this, he's not out there plying for trade.
I fear that the gacaca system may actually be grinding to a halt. It has all run hopelessly behind the schedule. They have had some preliminary hearings. The first stage is that each community establishes a record of what happened in that community during the genocide, and afterwards, they move to the second stage, which is when they figure out responsibility for what happened.
And again, this venture of establishing an historical record, which at some level, is very valuable, at some level. It is also a huge burden.
Is it accurate to think of the gacaca system as being similar to South Africa's Truth and Reconciliation Commission?
In some respects. It's certainly more victim-centered than the criminal justice system and it emphasizes the reconciliation aspect. And it includes a lot of emphasis on community service by former perpetrators--
Which is not something that happens in South Africa's approach?
No, it's not. With South Africa's TRC, the perpetrators, once they've made their confession and it is judged to have been a full confession of everything they know and have done, then they are let off free. There's no requirement that they apologize to people that they have harmed. There's no requirement that they express remorse for what they did, or that they ask for forgiveness.
In your research and writing you have been focusing on the subject of remorse and how it seems essential to the healing process after a mass atrocity like Rwanda's. Can you talk about this?
In the course of my broader research, I have been thinking a lot about what are the ritualized things that need to happen to make reconciliation really work in these societies that have been deeply and multiply traumatized by atrocious violence. The classical Western, Judeo-Christian series of things that happens is that you have a confession followed by an absolution, granting of forgiveness, followed by atonement, which is judged to be the route to reconciliation. I'm not so convinced that that's necessarily a paradigm for all different cultures.
From the work that I've done in Africa, I think what seems to work for many societies there is something that is more direct, where a perpetrator will express remorse, which is both an acknowledgement of what he did, and his own feelings that he wishes he hadn't done it, or he wishes he had done something different. It encompasses a lot of things that are broader than simply confession. Remorse, in a sense, is expressed directly to the person who has been harmed.
So that it is about that direct and personal human connection, human being to human being.
Exactly. And this came to me from two examples. One, from this friend that I was talking to, a Rwandan exile. I said to him, "Has anything about the ICTR actually given you anything that you found valuable?"
There was one thing he pointed to, and that was this one perpetrator called Omar Serushago. Omar Serushago had actually made a confession that spoke directly to my friend, who was himself a Rwandan Tutsi, because my friend said, "Serushago expressed remorse. He looked at the camera. He spoke directly to us, as Tutsis, and said that he wished he hadn't done it." Whereas at around that same time, one of the other early convictions at the court was former Prime Minister Jean-Paul Akeyasu. Jean-Paul Akeyasu had made a confession on camera that my friend said was very formal and distant -- not conveying any remorse -- just the fact that he done this and the fact that he had done that. And my friend just totally focused in on the aspect of a credible expression of remorse.
Then, shortly after that, I was reading this wonderful book by Pumla Gobodo-Madikizela. She is a black South African clinical psychologist, who obviously herself is a survivor of apartheid. She underwent an amazing journey of exploration in which she was trying to reach out to one of the worst of the apartheid-era perpetrators of violence, a man called Eugene de Kock, who was called "Prime Evil" in those days.
She writes for about two pages in her book about the importance for people who had been direct victims of de Kock's violence of him expressing remorse. That was what would enable them to move on. It's very powerful stuff. I think that's something that's worth noting.
The need for remorse, and the process which can contribute to this, leads back to your earlier critique about the significant limitations in a Western-style criminal justice strategy that is used in dealing with an atrocity like Rwanda's.
In these societies that are already so deeply driven by inter-group conflicts and distrust -- in Yugoslavia or in Rwanda -- the whole thing assumes an inevitable inter-group coloration. I've mentioned already that all of the indictees at ITCR are Hutu. All the indictments have been launched against one side for its acts. In this situation, it just undercuts the idea of reconciliation. The demographic situation inside Rwanda is that about 1 million of the present 7 million people in the country are Tutsis. Six million of them are Hutus. The government is dominated by people who are Tutsis. It is a minority-led government. There's no getting around that. I can understand that they have many sensitivities about sharing power with Hutus, given their experience of Hutu power over the past 30 years.
There has to be some kind of way for these two large social groups to get beyond this division. Kagame's government has tried, but it tries by totally outlawing any mention of what is called the "H word" and the "T word." There's this Orwellian situation where everybody knows, who is inside the society, who is a Hutu and who is a Tutsi and who is connected to whom. It's a fairly small country.
But the "H" and "T" words are never mentioned. Whereas, for example, in South Africa, where you had had a minority group in power, there's no way to hide who has white skin and who has black skin. There's this coffee-colored gray area in between, but by and large, you can't hide it, and it continues to be openly spoken of. That has helped, in a sense, the reconciliation process, after the ending of the minority regime there.
But it is hard to see how the present situation in Rwanda -- which is linked to a truly terrifying broader, regional situation of instability. You have Burundi to the south, where you also have a Hutu/Tutsi divide. You have the Democratic Republic of Congo to the west, which is this vast country of atrocities and genocides -- it's hard for this very small group of Tutsis to figure out how to proceed.
It's hard for the Hutus in Rwanda to get beyond and away from their connection with what happened in the genocide, in the way that, for example, German society has truly made what I think of as a fairly complete quantum break from its affiliation with Nazism. By and large, in Germany, the national narrative of what happened in the 1930s and 1940s is the narrative of the victim group. German people buy the narrative of the Nuremberg trials.
You can't have anything like that frank discussion of what happened between Hutus and Tutsis inside Rwanda these days. There are so many challenges.
And so, what is the effect of the court proceedings on all of that? I think the court proceedings have kept the polarization between Hutus and Tutsis alive, in a way that South Africa's TRC deliberately sought to reconcile people from the different groups historically.
And in Mozambique, which is the other country I'm looking at, where they had neither a TRC nor a criminal tribunal, by design, they worked very hard at the end of their civil war, which was a bloody and awful civil war. It came to an end in 1992, and they said, "That's it! That was the era of violence. Now we're in the era of peace, and we just set all that stuff behind us."
I was in Mozambique last year. People there can't remember what side their neighbor was on during the civil war. That stuff is not important to them anymore. Societies adopt different ways to go forward.
My fear about these international criminal tribunals is that they hinder the ability of societies to reconcile after atrocious violence.
What you are saying suggests that it is going to take years to be able to assess the value of the ICTR and what impact it will have on helping Rwanda break the cycle of retributive violence. You don't sound too hopeful.
One thing I will say is that the value of such proceedings is always reinterpreted by new generations. All you can do, in a sense, is do the best you can in your present generation, and then your kids will come and look at it, reinterpret it afresh 20 years down the pike.
Germany is a great example of this, or even our own society, the United States. The way that we look at issues of the legacies of slavery, it changes from generation to generation. I certainly assume that everybody involved in setting up the ICTR and the gacaca process has been acting in good faith.
And I mentioned earlier that some of the people who work at the ICTR may view it as a gravy train. That's true in any new institution set up. I'm absolutely not doubting the good intentions of the people who head the institution, or the people who launched it from the Security Council in November 1994, except that I will say that in November, 1994, there was this absolute tsunami of guilt that washed over the whole of the Security Council. They knew they had let down the people of Rwanda. The court was established on the crest of that wave of guilt, maybe partially as a substitute for any real self-evaluation as to what the international community had done wrong.
I wrote once that having failed to deploy troops to Rwanda at a time when they might have made a difference, they now decided to deploy an army of prosecutors instead. That's perhaps a little super-critical of me to write, but there's definitely an element of that.
What is notable is that you have those two ad-hoc tribunals for Yugoslavia and for Rwanda. And on that wave of prosecutorialism, we then had the creation of the permanent International Criminal Court. It finally was established last year. And there is a sort of a quiescence and a reconsideration in the international system right now, as to what is the value of these courts. It's quite appropriate that there should be such a reconsideration. This yen for international judicial activism was very much a 1990s thing. There are many troubling aspects of it.
One is that the prosecutors act in their own name. Like, when you have a prosecution in Virginia, it says, "the Commonwealth versus Helena Cobban." When you have it in England, it's "the Queen versus Helena Cobban."
The prosecutors in these courts act in their own names, because their grounding in any legitimate international legislative process is totally nonexistent. There is no international legislative process. There's just the fiat of the Security Council, which is made up of a random group of 14 nations, many of them highly undemocratic. I think there are other aspects of the international system that need to be addressed before juridical activism, prosecutorialism, can actually take more meaning.
But what has it achieved? As I said earlier, it has done something, imperfectly, to incapacitate the ability of the genocidaire leadership to reconstitute. In concrete terms, that's about it.
The gacaca process has achieved getting most of those scores of thousands of detainees in Rwanda out of the prisons and lock-ups and back into the communities. I don't know if the communities are going to be able to absorb, over a long run, those number of people who are suspected -- and many of them actually were perpetrators -- in the genocide. So many Hutus in Rwanda did participate in the genocide. The genocide was a mass participation affair, very unlike the Holocaust in Europe, which was highly technicalized.
What about Rwanda today -- what sort of path is it on? What would you highlight?
I would highlight the word precarious, unfortunately. I look at Rwanda today as being very precarious, and needing all the love and care and prayers that we can send its way. It's a beautiful, beautiful country, in a very unstable part of the world. That's the first thing.
The people there are all traumatized -- people who are survivors of the genocide and people who themselves participated in perpetrating the genocide. Participation in mass violence traumatizes people. Just as we know about soldiers who come back with PTSD -- but those are people who have participated in regular combat -- but people who have participated in those terrible, terrible acts of very up close and personal, direct killing and maiming and raping and looting. That traumatizes people. We have to recognize that.
I should say, however, that there is one hopeful thing that I noticed in Rwanda -- that I hadn't really been looking for, and I haven't written much about this -- and that is the role of religion. A lot of emphasis has been placed on the involvement of various Christian churches, in particular, the Catholic church, in the genocide.
One of the amazingly hopeful things that has happened in Rwanda since the genocide has been a huge growth of evangelical Christianity. And there in Rwanda, they play a wonderful role.
I'm a Quaker. There are Quakers in Rwanda and they are evangelical Quakers. And I was staying in an evangelical Anglican mission run by wonderful people. I met a few of these people who were evangelical, either Pentecostals or Anglicans and they were real wonderful social activists.
In all of these institutions, I found survivors of the genocide and family members of perpetrators of the genocide working and worshipping together. To me, any force, whether it's evangelical Christianity, or any other social force that can bring about that kind of reconciliation, has to be supported and admired. It was quite genuine.
I talked to a couple of very inspiring evangelical Anglican pastors, who were themselves Tutsi survivors of the genocide. Their testimonies were so moving, about how they had actually stood up to the genocidaires when they came to their door and used a kind of Christian-based reaching out: How could you do this to a fellow Christian? Don't you remember the words of Jesus? And they actually changed the hearts of those killers, who then left their doors.
That stuff is powerful and it's there in the whole country. To me, that's fabulous because these are people who need all the healing they can get. That was the major institution I saw providing that kind of social healing.
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