To the ICTR: Give us our archives!

On the 31st of December this year, the International Criminal Tribunal for Rwanda (ICTR), will officially close down its operations of trying War Crimes, Crimes of Genocide and Crimes Against Humanity perpetrated against the Tutsi. After 21 years of expensive, protracted, high profile and mostly controversial operations, the last thing that will be expected of the court is not to deny the Rwandan people their history. Those genocide archives are part and parcel of the Rwandan patrimony; of Rwanda’s history of suffering and resilience. If the aim of the international court was to contribute to rendering justice for what happened in Rwanda in 1994, or a way for the international community to clear its conscience of its absence during the slaughter of the Tutsis, I am afraid the court is just about to miss both aims. In the end, the ICTR will have succeeded in taking what is intimate and personal for the Rwandan people and made it a business for themselves. By they, I mean: the Judges, the lawyers, the experts, the researchers and the perpetrators of the highest crime against humanity. To put things in perspective: the Gacaca tried just under a million people, over a period of nine years and with a total budget of around US$ 55 million overall, while the ICTR tried around 80 people, over 21 years and with a budget of US$ 100 Million annually. Yes, the ICTR will have produced an important body of genocide jurisprudence and doctrine. It will have succeeded in interpreting the United Nations Charter and its application to trying crimes of War, Genocide and Crimes Against Humanity. It will have rendered some of the landmark judgments, including the ‘Nahimana et al’ Judgment, which established the doctrine of ‘Media of Hate’ or the ‘Akayezu’ Judgment that established rape as constituting in some instances a crime of Genocide. The ICTR was also an important business industry for international criminal lawyers; it created a vibrant business environment in the City of Arusha. Not least, from it, emerged a federating association of genocide denying lawyers and experts. It was in constant conflict with associations of genocide survivors and today it leaves us with mixed feelings at best. The ICTR is that gift that keeps on giving: While Judges established ‘rape’ as a crime constituting Genocide, defense lawyers made sure to humiliate victims in the process of applying that rule. Asking them to describe the experienced scenes of rape: in open trial! Asking all sorts of horrific and uncomfortable questions with the intent to ‘crack’ the victims and prove that they are lying. This went on until the associations of survivors protested and such practice banned. Now that the court was able to gather and develop significant documentation on the Genocide perpetrated against the Tutsi, the powers that might be would rather the archives are kept in Arusha, The Hague, China or halfway across the world, instead of bringing them home to Rwanda, after the court phases out. The process was brutal, soulless; the politics around it, ruthless and the cutthroat lawyers, indecent. As it turned out, some of the judges were biased. For instance, Rwanda had to call for the resignation - in vain - of embattled president of the ICTR’s Appeals Chamber Theodor Meron, after “A letter leaked by [his colleague] Danish judge, Frederik Harhoff to the media, revealed that Meron had exerted ‘persistent and intense’ pressure on his fellow judges to allow suspects to go free.” Judge Meron acquitted Protais Zigiranyirazo in November 2009 and, recently, Justin Mugenzi and Prosper Mugiraneza, all senior officials of the genocidal regime. Meron and other judges also reversed convictions and reduced considerably the sentences of Col. Theoneste Bagosora – the mastermind of the 1994 Genocide against the Tutsi – and Lt. Col. Anatole Nsengiyumva’Equally, 15 Associations of Victims and Witnesses of Genocide of Bosniak in former Yugoslavia: The Association of Mothers of the Srebrenica and Zepa Enclaves, Munira Subasic, and Murat Tahirovic, also requested for Judge Meron’s resignation for similar bias in cases of Bosniak Genocide of which he was also judge in appeal. Kenyan lawyer Wilfred Ndiretu, is the only one counsel who exposed rampant corruption, after his client and other defense lawyers on his team, kept putting pressure on him to corrupt witnesses, into wrongly testifying in favor of perpetrators; a rather commonplace practice in the court. At some point, the best way to be noticed as a potential defense lawyer was to brand oneself as a world class genocide denier: Touring the world, holding conferences, publishing articles or books denying genocide. Almost automatically, one would be hired by genocide defendants in Arusha. Then ensure that the trials lasted the longest time possible and continue to be paid. [(more than US$ 500,000 was spent on the defense of Akayesu alone. Ever heard of prosecutors who so much want to be the people they prosecute Ocampo-style? Or lawyers who want to be the people they defend? Here is the perfect example: Everyone in Kigali remembers one Peter Erlinder, who was briefly jailed in Rwanda after he had come to defend Victoire Ingabire. The government was baffled that he would dare turn up here, after he had made numerous declarations in international colloquia denying genocide, and then hired to work as a defense lawyer in Arusha. Everyone also remembers the two American ‘experts’ interviewed in the Untold Story BBC documentary, who worked for the defense lawyers in Arusha. In the documentary they can be seen making ‘expert’ assessments of how there were more Hutus killed than Tutsis in the Genocide. An account that was swiftly dismissed by Judges of the ICTR, but that didn’t stop them from peddling it in the infamous BBC film. Similarly, embattled ‘Professor’ Filip Reyntjens surprised prosecutors of the ICTR, when he told them, that he would not be testifying for the prosecution any longer, but only for the defense (In favor of genocide suspects that is) – this intervened after he had been denied visa to come back to Rwanda. So, the ICTR’s closing doors marks an important page, turned in the long history of suffering of the Rwandan people. Should we get the archives or should we not. We are just too happy to move on! When the hammer goes down – as they say, the ICTR would have enriched the jurisprudence, the scholarship; enriched the lawyers and the families of perpetrators – through, among other horrors; fees-splitting between the lawyers and the perpetrators’ families, it will have humiliated the victims and ultimately denied justice to the Rwandan people. Some of its ‘high profile’ fugitives: masterminds of the genocide, such as Kabuga Felicien the financier of the Genocide and Protais Mpiranya, head of Habyarimana’s presidential guards, are still on the run. In their words, they are keen to protect witnesses on the pretense that their identity would be compromised should the archives fall in the wrong hands. By wrong hands they mean the Rwandan government. In their arrogance, they seem to forget that we had genocide trials of our own, where more than a million people participated. Where convicted perpetrators were allowed to go home and today, benefit from full protection of the same Rwandan government. They pretend to love Rwandans more than we do, they are wrong! If the archives are the property of the United Nations; well Rwanda is also part of the United Nations. The UN should feel free to continue administering the archive but from here in their home: Rwanda Just imagine I, a Rwandan lawyer having to ask for a visa, fly miles away in a foreign country, just to consult archives of the Genocide perpetrated against my own people. Let foreigners consult digital versions of the archive, Genocide survivors and their children earn the right to preserve their own history first hand: In their own country! In the end, no reparations will have been affected to genocide victims, while funds continue to flow for the wellbeing of perpetrators in their luxurious prisons, from where the ICTR allows them to receive frequent help from British media to continue spreading their genocide message and show no remorse for their deeds. I will conclude this piece with a quote from genocide scholar Linda Melvern: ‘Genocide denial follows the crime as night follows day and its purpose is the destruction of truth and memory’. We want our truth and memory here where we can see it! No one knows the value of those archives as we do. The only judicious action that the ICTR would commit, to salvage an otherwise tainted record, would be to give the archives to its rightful owners: the Rwandan people. For the rest: good riddance! The writer is a human-rights lawyer and blogger based in Kigali. www.gateteviews.blogspot.com

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To the ICTR: Give us our archives!