Hirondelle: Twenty years after the genocide, how do you assess the work of the ICTR?
Tertsakian: The ICTR was only ever expected to try a small number of people: primarily those who played a leading role in the genocide. To some extent, it has succeeded in doing this. It has tried 75 people and convicted 49, including several prominent individuals, such as former Prime Minister Jean Kambanda, former army Chief of Staff General Augustin Bizimungu, and former Ministry of Defence Chief of Staff Colonel Théoneste Bagosora.The ICTR has fulfilled its mandate to a certain extent with regard to key figures behind Rwanda’s genocide.The ICTR also set an important precedent in the first-ever prosecution of rape as genocide in the case of former bourgmestre (mayor) Jean-Paul Akayesu.Hirondelle: Has the ICTR helped reconcile the Rwandan society?Tertsakian: It has not fulfilled the part of its mandate relating to war crimes and crimes against humanity committed by the RPF. RPF troops killed tens of thousands of civilians when they took over the country in 1994. These killings were not equivalent or comparable to the genocide but many of them constituted war crimes and crimes against humanity. These crimes clearly fell within the ICTR’s mandate, but the ICTR has not prosecuted a single RPF case.As a result, this has created a sentiment among some Rwandans and international legal observers that the ICTR provided only one-sided or victor’s justice. This may have reduced its effectiveness in contributing to reconciliation.Hirondelle: What about the trials before Rwandan courts, especially the gacacas? Have those village courts helped bring reconciliation to Rwanda?
Tertsakian: On the basis of our field research and trial observation, Human Rights Watch concludes that gacaca left a mixed legacy. Gacaca’s positive achievements included the courts’ swift work in processing a huge number of cases (almost 2 million, according to Rwandan government statistics); the participation of local communities; and the opportunity for some genocide survivors to learn what had happened to their relatives. Gacaca might also have helped some survivors find a way of living peacefully alongside perpetrators. However, many gacaca hearings resulted in unfair trials. Many of the accused were not able to effectively defend themselves; there were numerous instances of intimidation and corruption of defence witnesses, judges and other parties; and flawed decision-making due to inadequate training for judges.The expectation that gacaca could deliver national-level reconciliation in a matter of a few years was unrealistic. But gacaca's potential for contributing to reconciliation was hindered by difficulties in revealing the truth, as some participants lied or remained silent due to intimidation, corruption, personal ties, or fear of repercussions.In addition, gacaca did not deliver on its promises of reparations for genocide survivors: survivors received no compensation from the state, and little restitution and often overly formulaic apologies from confessed or convicted perpetrators. While gacaca may have served as a first step to help some Rwandans on the long path to reconciliation, it did not manage to dispel distrust between many perpetrators and survivors of the genocide.Hirondelle: What do you think of the way procedures are being conducted in the cases referred to Rwanda by other countries and the ICTR?
Tertsakian: In 2011, the ICTR decided to transfer its first genocide case to Rwanda: Jean Uwinkindi. Uwinkindi was sent back to Rwanda in 2012. Court hearings in his case have begun at the High Court in Kigali, but have not progressed beyond procedural matters so far. The same applies to the case of Bernard Munyagishari, sent back to Rwanda by the ICTR in 2013. It is therefore too early to comment on the standard of their trials in Rwanda.Hirondelle: Some countries in the West are still refusing to extradite genocide suspects to Rwanda but are also not bringing them before their own courts. Isn’t this encouraging impunity?Tertsakian: The trend has shifted. Until around 2011, most countries were unwilling to extradite genocide suspects to Rwanda, initially because of the death penalty, then, after Rwanda abolished the death penalty in 2007, because of the risk of unfair trials. However, in the last two or three years, an increasing number of countries, such as Sweden and Norway, have been willing to extradite genocide suspects to Rwanda. Extradition proceedings are currently underway in several countries, including the UK.The turning point came when the ICTR decided to transfer its first case to Rwanda in 2011 (Uwinkindi). Courts in several countries subsequently used the ICTR’s decision as the basis for their own agreement to extradite suspects to Rwanda.In addition, there have been a number of trials of Rwandan genocide suspects before the domestic courts of Western countries – for example in Belgium, Switzerland, Germany, Canada, Finland, Norway, Sweden, the Netherlands, and France. In some cases, for example in the United States, Rwandan genocide suspects were charged and tried on immigration-related offenses for concealing their alleged role during the genocide.One of the important recent cases was the first trial of a Rwandan genocide suspect in France – a country that had backed the former government of Rwanda and supported and trained some of the forces which went on to commit genocide. On March 14, 2014, a court in Paris found Pascal Simbikangwa, an intelligence chief under the Habyarimana government, guilty of genocide and complicity in crimes against humanity and sentenced him to 25 years in prison. Just one month earlier, on February 18, 2014, a court in Germany sentenced former mayor Onesphore Rwabukombe to 14 years’ imprisonment for aiding and abetting genocide.These cases of domestic prosecutions under the principle of universal jurisdiction are important milestones in the demonstration of international commitment to ensuring that perpetrators of the genocide are held accountable, wherever they are found.AH/JC