On the 17th September 2020, the new presiding Judge of the International Residual Mechanism for Criminal Tribunals (IRMCT), Carmel Agius, denied the early release of genocide convict Laurent Semanza. This welcome decision runs counter to those of the previous IRMCT president Theodor Meron that were not only outrageous, they lacked any sound legal or moral basis to stand on; they were simply unjustifiable. It was common for Judge Meron to release of genocide convicts simply because the general practice before UN courts provides that convicts are eligible for early release after serving two-thirds of their sentences. However, in so doing the judge disregarded an equally important principle of rehabilitation or prevention of recurrence. This was excellently argued by Hola Barbora, a legal scholar, in the article titled, “Early release of ICTR convicts, the practice beyond the outrage.” Hola argued that the early release of genocide convicts doesn’t allow them to reflect on the wrongfulness of their deeds or to acknowledge responsibility, nor to express remorse or to apologise for their crimes. Neither is early release concerned with considerations of justice and fairness as the gravity of crimes did not temper Meron’s inconsiderate interpretation of laws when exercising his discretionary powers. As noted above, this miscarriage of justice – which characterised Meron’s tenure - is neither informed by fairness or the prevention of the recurrence of genocide, which is the basis of “Never Again.” If Meron is not concerned with Never Again, then the purpose of the courts itself comes into question, including the fact that the judge’s dubious interpretation of laws failed to take into account the sensitivity of those affected by the crimes it sought to prosecute. The decisions to reduce sentences for or grant early release to genocide convicts under Judge Theodor Meron are a stark reminder of the need to ensure that justice serves the purpose of protecting society from harm. The creation of international courts, such as the International Criminal Tribunal for Rwanda (ICTR) and subsequently the residual mechanism, was based on the assumption that there exists a human society without borders, built around the idea of a shared humanity. It is an attempt for the international community of nations – representing a united human society – to stand in solidarity with victims and against those who commit the most heinous crimes perpetrated against humanity; in this specific case, the genocide against the Tutsi. Meron’s conduct, the utter disregard for the humanity of survivors, is evidence that such a society is yet to exist. The world we have fails the Never Again test because not only does the value of human lives deserving protection depend on the interests of the most powerful nations but the sensitivity to the crimes committed varies depending on the perspective that is favoured by the courts. Hence, if justice and prevention of recurrence were the primary concerns of international courts, then focus on the survivors’ sensitivity and the Rwandan society’s perspective on rendering court decisions regarding convicts would be important prerequisites. On the contrary, focus on the perpetrators’ sensitivity has emboldened proponents of negationism, revisionism and genocide minimization across the world. They are learning from the attitude of the international community in general and the courts in particular. For instance, Meron’s decisions which failed to take into account the gravity of the crimes constituted a minimization of the genocide against Tutsi, and for a presiding Judge of an international court to minimise genocide is not something to take lightly. Indeed, if international courts disregard the gravity of the crime of genocide, how can they be expected to uphold Rwandan courts’ judgements with regard to the minimization of genocide? This is what happened with the African Court on Human and Peoples’ Rights in whose ruling it disregarded the context in which Victoire Ingabire promoted her double genocide theory at the Kigali Genocide Memorial; the court erroneously considered that the right to freedom of expression is more important than efforts to preserve the Rwandan society from such harmful ideology. This attitude has created a context where the likes of Jean Kambanda, the former Prime Minister of the interim government that executed the genocide, write books from their prison cells to deny the very crimes they were convicted for. In the process, perpetrators are sanitized. Some have gone as far as allying with the remnants of the genocidal forces roaming in eastern DRC to conduct terror attacks in Rwanda and promoting the very ideology that informed the genocide against Tutsi, which is wrongly characterised as mere political dissent. In the same vein, Ingabire’s assertions were wrongly referred to as freedom of speech when they were clearly genocide denial. Similarly, in many instances, national courts in Africa and Europe have failed to enforce arrest warrants issued by the Rwandan government against genocide suspects or to bring them to justice in their host countries. As the Australian academic, Phil Clark has revealed, Human Rights Watch once argued that in cases where prosecution was not possible in the countries that have given sanctuary to genocide perpetrators it was preferable to let the suspects walk free. “In the first UK extradition cases, when pre-2002 international crimes couldnt be tried under UK law, HRW was confronted with a choice: a prosecution in Rwanda or impunity. HRWs amicus brief supported the latter and the 5 genocide suspects to this day have never been prosecuted” Clark tweeted. Such toxic advocacy by a corrupt human rights organization can be partly explained by the failure to identify with survivors’ grief and to consider their humanity as something to be recognized and defended. Judge Theodor Meron’s decisions were just a reminder of how the international community has failed Rwandans before, during and after the genocide. It has done so by ignoring warnings, concealing facts to evade the responsibility to protect, spending 2 billion US dollars for the ICTR’s shoddy work where less than 70 people were tried for a crime that claimed more than a million lives, sheltering genocide suspects from justice and ultimately releasing those who were convicted without any concerns for fairness and prevention of recurrence. As such, the international community and its courts have done little to win the trust of Rwandans. Whether Judge Carmel Agius’s decision to deny early release to Semanza, which takes note of the Rwandan government’s position on the matter - a position that reflects survivors’ objections to the release – will reverse the trend set by Judge Meron and restore confidence in the courts remains to be seen.
