Hirondelle: Can we say the ICTR has fulfilled its mandate?Gordon: I think the ICTR results speak for themselves. The ICTR has indicted 93 persons – including high-ranking military and government officials, politicians, businessmen, as well as religious, militia, and media leaders. Given its mandate to prosecute the persons most responsible for the 1994 genocide, I think it has done an admirable job under what has often been quite challenging circumstances. In addition to this, it has established an Information and Documentation Centre (along with 10 provincial branches) as well as an Outreach Team that conducts awareness-raising exhibitions, workshops and judicial training. I think it has learned over the years that it must play an important role in preserving the memory of what happened in 1994 and teaching others that such crimes can never be committed again.
Hirondelle: Could you be more specific? Gordon: First, it began the justice enterprise at a time when Rwanda had absolutely no investigative/judicial capacity in the immediate wake of the genocide. Second, it developed crucial international criminal law jurisprudence (among other things, it was the first international tribunal to flesh out the elements of genocide; the first international tribunal to define rape in ICL (International Criminal Law) and recognize it as a means of perpetrating genocide; it formulated the elements for direct and public incitement to commit genocide and established that hate speech not directly calling for violence can be the basis for charging persecution as a crime against humanity). Third, it helped establish and/or improve local capacity building. Four, it helped facilitate improvements in the Rwandan penal/judicial system (including abolishing the death penalty, better guarantees of due process and greater independence of judges) and transferred, or helped get transferred, cases to Rwanda. Five, it is helping preserve memories, raise awareness and establish important precedents.
Hirondelle: But the Tribunal has been criticized for being slow and too expensive…Gordon: It is difficult to start a court from scratch and prosecuting the architects and leaders means investigating and adjudicating everything that went on below them for which they are responsible – that is a massive undertaking. And from going through this, we have learned invaluable lessons. The ICTR was meant to prosecute “the big fish” and it has succeeded in that endeavor.
Hirondelle: Most of the acquittals were denounced, notably in Rwanda. Your comment?Gordon: The recent acquittals of Justin Mugenzi and Prosper Mugiraneza, as well as earlier acquittals such as that of Protais Zigiranyirazo, have been criticized. But acquittals show this is not “rubber-stamp” justice. It should be pointed out that, in sum, the ICTR has less than a 20% acquittal rate – this compares to about 27% in Rwandan domestic courts and about 35% in gacaca courts. Hirondelle: Another criticism is the lack of prosecutions for crimes allegedly perpetrated by former rebels of the Rwandan Patriotic Front (RPF), now in power. Your comment on that?Gordon: Critics have pointed out that the ICTR has prosecuted only extremist Hutus connected with the genocide perpetrated against the Tutsis – it has not prosecuted crimes committed by the RPF. This is true, but certain other points must also be considered. First, as a practical matter, the ICTR needed the cooperation of the Rwandan government to fulfill its mandate and it would not have gotten it had RPF officials been prosecuted. That is a sad reality but it has been the reality. And this helps answer another criticism directed at the Tribunal, that it should have been based in Rwanda but that would have aggravated the situation even more! Second, there have been Rwandan domestic prosecutions of RPF officials but, in all candor, these have been criticized as “whitewashed” justice. The fact is that all crimes connected to the massacres in 1994 should be prosecuted. But let’s face it: extremist Hutus committed genocide against the Tutsis, and the RPF, whatever its crimes were, did not commit crimes of the same scope or gravity. It was clearly not an ideal situation but the ICTR undertook the justice measures that were possible given the situation.
Hirondelle: What about the problem of acquitted people who have nowhere to go?Gordon: Regarding acquitted persons, I think it’s true that the Tribunal framers probably did not consider this issue in any depth when the Tribunal was initially created. This is a serious issue in international criminal law and I think it’s something that needs to be addressed by the international community. In the end, I believe it’s a question of allocating proper resources to effectuate successful relocation (along the lines of witness protection programs). Of course, if there are no countries willing to take these individuals, even the most robust international efforts will come to naught.
Hirondelle: Is there any hope that the nine fugitives will be arrested after the Tribunal closes?Gordon: As concerns the remaining fugitives, I am optimistic they will be caught. My understanding is that the ICTR Residual Mechanism will track and ultimately try three high-profile fugitives: Félicien Kabuga, Protais Mpiranya and Augustin Bizimana. I think they will be caught and tried eventually. I think that is also true of the other six. I used to work for the Office of Special Investigations – the US Department of Justice’s so-called “Nazi-hunting Unit.” We were able to find war criminals decades after commission of their crimes and bring them to justice. I believe domestic authorities in the various countries through which these individuals may pass or in which they may reside will eventually find them. And I hope they sweat and suffer under the Damocles Sword of potential justice until that time.