Focus on The ICTR: The Defence Perspective
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Focus on The ICTR: The Defence Perspective

Olivier Nyirubugara
17 November 2009

Focus on the ICTR: A defence perspective from olny.nl on Vimeo.

The UN International criminal Tribunal for Rwanda (ICTR) has a few years to go and discussions about its legacy for the International Criminal Law has started. While some perceive that Tribunal as a major advancement, others, including defense laywers, who have been defending genocide suspects for last fourteen years, think that this ICTR and other ad hoc courts, have created a regrettable precedent.

‘The ICTR has been a big mistake’, said Kenyan defense attorney Kennedy Ogetto. He was speaking in The Hague, The Netherlands on 14 November 2009 in a three-day self-sponsored conference. Over 100 people, mostly Rwandans, but also foreigners coming from all over the world listened to frustration-marked presentations by the lawyers and other scholars and experts.

The ICTR is illegal

The legality of the ICTR is still being discussed, even as the Court’s closure is drawing near. In this regard, the laywers and scholars who spoke during the conference converge to qualify the setting up the ICTR by the Security Council as an abuse of power.

‘No ad hoc criminal court should be created by the UN Security Council’, said, Austrian Philosophy professor Hans Koechler , adding that justice should not be administered by the five super-powers with the veto right. Veteran French Laywer, Roland Weyl agrees:

‘All the tribunals set up by the Security Council are marked by a fundamental international illegality’, he said. He explained that the sole task of the Security Council is to keep and restore peace. ‘The setting up of criminal tribunals is … a prerogative of the General Assembly in its full sovereignty’, he concluded.

Fabricated Truth

The ICTR was set up in late 1994, only months after the genocide that claimed over a million lives among the Tutsi minority. However, many speakers questioned this version, qualifying it as incomplete.

‘Contrary to what took place in Germany where the State clearly persecuted the Jews, what happened in Rwanda is a sui-generis genocide’, said German Historian Helmut Strizek. For him, the vacuum that was created in April 1994 led to what he called a ‘spontaneous genocide’.

‘The ICTR is contributing to the fabrication of distorted truth’, said French author and investigative journalist Pierre Péan in an interview on 14 November. Péan is author of Blancs menteur, noirs fureurs, a 2005 controversial book dedicated to what he calls Tutsi connections in France. He was accused of racial hatred against the Tutsi, whom the book allegedly presents as liars.

Joint Criminal Enterprise

British International Criminal Law scholar and Sorbone professor John Laughland holds that prosecuting and trying suspects in groups in criminal courts undermines the rule of law. The ICTR office of the prosecutor has been using the Joint Criminal Enterprise doctrine to put former government leaders, and former military commanders in groups. According to Laughland and other lawyers, the aim is to prove that a conspiracy took place.

‘The notion of plan is far from contributing to reconciliation’, said Laughland during the conference. He suggested that it would rather fuel conflict and violence as different groups would hasten to have their own plans. He added that in times of armed conflicts, as in Rwanda between 1990 and 1994, ‘crimes might have dictated by the violence of the other side’.

Beth Lyons, another defense lawyer, refers to the Joint Criminal Enterprise as, ‘the nuclear bomb for the prosecutors because with it they can encapsulate all their theories of conspiracy’. In her words, that doctrine tortures Law and Justice.

Acquitted but…

So far, the ICTR has acquitted a few suspects. However, according the laywers, acquittal does not mean so much. The post-prison life seems to be a psychological prison, to paraphrase Malian lawyer Seydou Doumbia. He presented about the ICTR acquitted who are still to be reinserted back into normal life. While some managed to find countries accepting to grant them asylum, many others are still in so called ‘safe houses’ in Arusha, Tanzania. Yet others found their families dislocated and, on top of that, could not find jobs as no one want to employ a genocidaire. ‘ Yet these are people who committed no crimes’, said Doumbia.

His colleagues Sadikou Alao from Benin and John Philipot from Canada, presented about the convicts in Benin jails and in the inmates in ICTR Detention facility, respectively. Their situations is mostly marked by uncertainty and worries, especially as to their fate after the ICTR closure now scheduled in 2012.

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