Lawyers fault Rwanda’s tribunal over legitimacy


For over a decade, defence lawyers and scholars have questioned the legitimacy and partiality of the International Criminal Tribunal for Rwanda (ICTR) established to try masterminds of the 1994 genocide.

Some argue that ICTR was politically motivated to appease the Rwandan government and remove blame from Western patrons guilty of failing to stem mass killings.

The Rwanda government has dismissed claims that ICTR has deliberately failed to prosecute the Rwanda Patriotic Army (RPA) officers over war crimes, while defence lawyers allege that through propaganda the government and allies in the West have succeeded in re-writing the global picture of what happened during the genocide using the ICTR.

As the International Criminal Court (ICC) prepares to receive the ‘Ocampo Six’, debate has emerged with some suspects claiming the ICC Prosecutor, Luis Moreno-Ocampo, was politically motivated and biased.

Key suspects

Rwanda, under the first post-genocide regime controlled by then Vice-President and Defence Minister, Paul Kagame, opposed its formation by a UN Security Council resolution in 1995, arguing it ought to have been seated in Kigali, not Arusha in Tanzania. The UN chose Arusha because post-war Rwanda was ill prepared to try genocide suspects.

At its installation in the mid 1990s, Kenya opposed the mandate of the ICTR, arguing it did not adequately address the instigation from Uganda of the civil war that degenerated into a genocide besides not investigating the April 6, 1994 assassination of former President Juvenal Habyarimana that led to mass murder.

Kenya eventually surrendered 11 key suspects of the genocide, including war time Prime Minister, Jean Kambanda, to the ICTR, and even received crucial assistance through the tribunal’s Senior Legal Officer and Spokesman, Roland Amoussouga, in establishing its Witness Protection Programme. But it still remains in bad books with the tribunal for allegedly failing to hand over genocide suspect Felicien Kabuga.

Not surprisingly, most defendants at the ICTR also opposed the court and spent years trying to question its legitimacy and capacity for equal justice. Other criticism relates to the cost of these trials. According to Amoussouga, ICTR spends $100 million a year with a staff of 1,200 from about 100 countries.

Evidently, polemics have followed all international tribunals since the Nuremberg and Manila trials.

But the ICTR has generated jurisprudence that has become the corner stone of principles of international humanitarian law leading to the creation of the Rome Statute. In spite of these criticisms, ICTR Prosecutor, Hassan Bubacar Jallow, declares the tribunal has generated an enduring legacy for the region and across the world and denies defence lawyers’ arguments that he has presided over a politically motivated court dispensing victor’s justice. But to defence lawyer, Lennox Hinds, it has fostered the tragedy of victor’s justice.

According to Hinds, a professor of law at Rutgers State University in the USA who represents genocide convicts Ephrem Setako and Juvenal Kajelijeli, "this tribunal (in Arusha) is held hostage by the regime in Kigali", and declares "we are not going to submit to victor’s justice", referring to what he alleges is political pressure on the ICTR to convict genocide suspects.

Jallow disagrees, saying that "the ICTR has had a substantial impact on the world" and "expanded the frontiers of justice", concluding that without this court most masterminds of the Rwandan mass murders would have gone scot free. The Gambian also argues that although atrocities happened in states near Rwanda despite the ICTR, its legacy stemmed worse events.

The important thing, he says, "accountability (has been fostered) even if people continue to commit these crimes (they know) they will be held accountable."

According to Amoussouga and Jallow the most important legacy for the tribunal is that it has demonstrated the viability of international justice, forcing leaders to discover that there will be consequences for all past liabilities.

They also argue that the cost is a necessary evil that does not come cheap with Amoussouga adding that the cost of peacekeeping operations for a year in a failed state exceeds ICTR’s expense in five years.