Guichaoua is a specialist on the African Great Lakes region and has testified as an expert witness in several trials before the ICTR.
Hirondelle: Do you think the ICTR has accomplished its mission? Guichaoua: Yes, on the institutional, political and ethical levels. After the war and genocide in Rwanda in 1994, the advent of the ICTR reflected the UN’s will to create an independent international judicial institution that would end impunity in a region affected since independence by recurring widespread massacres by the authorities, by armed rebels or opposition forces. The Tribunal was a given a mandate to try the worst crimes committed in 1994: war crimes, crimes against humanity and genocide. The crimes had to be determined, the authors identified and brought to justice. That was done for the first time on the African continent, which led a number of national courts also to open cases against suspects on their territory and in some cases to hold trials and convict them. After nearly 20 years, the quality and quantity of the ICTR’s legacy may give rise to some reservations, but it has blazed a trail: the prosecution, judges and staff have tried the main architects of the genocide, established jurisprudence and set standards in terms of truth and justice. And in its wake, other situations, other massacres on the African continent or elsewhere have given rise to international criminal investigations. That is the most important thing.
Hirondelle: Rwanda has accused the ICTR Appeals Chamber of having a plan to acquit the main authors of the genocide or give them light sentences. What do you think about that?
Guichaoua: Relations between the post-genocide authorities in Rwanda and the ICTR have always been difficult. For ten years, the question of possible ICTR trials of RPF crimes (the Tribunal’s “second mandate”) meant constant tension, until the Tribunal dropped this possibility in 2005. After that, Kigali demanded that the full sovereignty of the Rwandan judicial authorities be re-established. When the ICTR authorized its first detainee transfer to Rwanda in 2011, the Court deemed that the Rwandan justice system had been brought up to international standards. Some Western countries followed suit, extraditing to Rwanda suspects who were under an international arrest warrant. Nevertheless, since the “big trials” ended at the ICTR in the late 2000s, each judgment has brought stronger and stronger criticism from Rwanda. The accusations have included labelling ICTR staff and judges in the same way as the genocide suspects, saying they are defending “genocide ideology” or “revisionism”. Accusing Judge Meron, President of the ICTR Appeals Chamber, of having a “plan” to acquit genocide perpetrators can be seen in this context as part of a series of unacceptable verbal outbursts springing from a deterioration in the internal, regional and international context for Rwanda.
Hirondelle: Has the Tribunal managed to establish the facts about the genocide?
Guichaoua: In addition to the accusations of judges being clement towards the accused (which would need close examination on a case by case basis and especially a contextual analysis of these tardy judgments), it seems there are very likely to be two major points of conflict with the Rwandan authorities hanging over the ICTR’s legacy.
The first relates to the relation between the “popular justice” delivered by Rwanda -- which in 2012 claimed to have held nearly 2 million trials in a climate of popular excitation that went beyond the control of the authorities -- and the image of an independent and exacting judicial process put forward by international courts. The judges in Arusha, basing their judgments on thousands of testimonies from direct witnesses of the Rwandan tragedy, have laid down the historical substance and framework with a rigorous, factual and coherent account of facts and of the players’ strategies. Using this approach, the judges systematically refused to confirm the charge of “conspiracy to commit genocide” against accused persons that had widely been dubbed the “brains” or the “planners” of the genocide. So while they established that the anti-Tutsi genocide included from April 1994 pogroms, propaganda, written texts and so on that showed undeniable and explicit genocidal intent, the historical record established by the judges goes against widespread preconceptions of an almost “genetic cause” (ancestral hatred of the Tutsis, a culture of submission to authority, uneducated peasantry, propaganda).
The ICTR judgments describe a de facto criminal strategy whereby from April 6 decisions and events contributed daily to the most radical outcomes sought by the two parties in conflict in their search for a “final solution”. But the outcome was not inevitable. The launch and implementation of the genocide was only possible after April 6, 1994, when the interim government had free rein after eliminating the legitimate authorities. So the judges, basing their views on facts presented to them, have refused to endorse the theory of the Rwandan Tutsis who say the genocide was being prepared from 1990 when the RPF launched war, or even from the declaration of the “Hutu” republic in 1959.
Hirondelle: And the second point of conflict with Rwanda?
Guichaoua: The second point arises from a Security Council decision on the future of the ICTR archives. Just as the Tribunal in The Hague will keep most of the ICTY archives, most of the ICTR archives are to stay in Arusha where a special building will be constructed to house them. This “dispossession” has angered the Rwandan authorities, who say they are speaking for the memory of the victims. Their claim to have the archives in Rwanda is legitimate, even if most of them have already been scanned and are in the ICTR Documentation Centre in Kigali, where they can be consulted by residents, foreigners – or at least those who get a visa – and exiled persons who get a passport. But there is more at stake than that. Housing all the originals, as Rwanda wants to do, cannot be done without strict respect for the confidentiality of witness testimonies and the obligation to preserve everything, whereas Kigali has always opposed any investigation into war crimes and crimes against humanity allegedly committed by the RPF. Such crimes have been partially documented in “special inquiries” that were conducted up to 2005.
Hirondelle: The ICTR has been called a victors’ court because it has never held any trials for alleged RPF crimes. What do you think about that criticism?
Guichaoua: Trying those most responsible for the genocide was a legitimate choice at the time the ICTR was created and a duty to victims and survivors. However, the fact that successive prosecutors – with the approval of the Security Council -- bowed to Rwandan opposition and failed to pursue the Tribunal’s full mandate has weakened its credibility, the scope of its judgments, the uncovering of the truth and its potential to appease the passions and points of contention between the parties in conflict.
The task entrusted to the ICTR is thus not finished. But crimes against humanity and war crimes are imprescriptible and the “winning side” is well aware of this, especially at a time when the United Nations intervention force in the Congo has just brought to a brutal end the right to intervene that Rwanda has assumed for itself in the last 15 years throughout the eastern DR Congo in the name of fighting regrouped “genocidal forces” and the instability they have caused. That is the reason the official reaction was so strong at the beginning of the year when a personality from the US State Department – who also happens to know well the suspended ICTR case files – made it clear that Rwandan officers could be brought to justice for crimes committed recently or being committed currently in eastern Congo. The mission entrusted to the ICTR was to fight impunity, and its de facto establishment of a new category of citizens, those who have gone unpunished, has done much to raise the demands of those in the region who should be brought to justice.