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Should there be one court for the world?
Sometimes governments are unable or unwilling to punish the guilty.
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
This programme in the 'I have a right to...' initiative was first broadcast on 3 November 2000. It was presented by BBC World Affairs Correspondent Rageh Omar and produced by Charu Shahane.
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 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 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.
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.
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.
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 Navanetham Pillai, the President of the Tribunal and head of panel of international judges at the ITCR.
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 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.
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:
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.
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:
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:
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.
So you would say the prisons are full, but the graves are also full?
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
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.
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.
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 :
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:
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
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:
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.
Of course not everybody in Rwanda is
as enthusiastic about Gachacha:
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:
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:
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.
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:
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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