- The Washington Times - Thursday, January 2, 2003

ARUSHA, Tanzania The flight from this safari town in northern Tanzania to Kigali, the capital of Rwanda, passes above the Olduvai Gorge, the grave of one of the earliest men, a site that has been called the "birthplace of humanity."

It also crosses the southern tip of Lake Victoria, whose shores lapped with the thousands of Tutsi corpses as a result of humanity's latest genocide the 1994 slaughter of 800,000 ethnic Tutsis by extremists in the majority Hutu group.

No commercial carrier takes this route, but the U.N. "Beech Craft" services the Arusha to Kigali run, transporting U.N. investigators from the International Criminal Tribunal for Rwanda (ICTR) seated in Arusha to the scene of the genocide one country over. If everyone's visas are in order, witnesses are to leave Kigali and fly back to Arusha to give evidence in the trials taking place there.

But visas have not always been in order, and that is a problem for the court, said Tom Kennedy, a U.N. spokesman for the ICTR. In late July, all three branches of the ICTR the prosecutor, the judges and the registrar fired off letters to the Security Council accusing the Rwandan government of thwarting justice by obstructing witness travel.

The Rwandan U.N. ambassador shot back and attacked the legitimacy of the ICTR, charging "inefficiency, corruption, nepotism, lack of protection of witnesses, harassment of witnesses, employing genocidaires as members of defense teams and investigators, mismanagement [and] slow pace of trials."

This dispute about witness travel is the latest example of poor relations between Rwanda and the ICTR. Underneath the visa issue are more troubling questions about the court's legitimacy and its future, said prosecuting and defense attorneys in Arusha.

Three years ago, cooperation between country and court were thought to have hit a low point when the Rwandan government denied Carla Del Ponte a visa, preventing the chief prosecutor from visiting her offices in Kigali. Now, relations appear to be worse.

In June, rumors were circulating in Arusha and Kigali that prosecutors had prepared three secret indictments against members of the Tutsi-dominated government in Rwanda. In response, Kigali concocted "this bogus visa issue" to prevent witnesses from participating in the trials, said one prosecutor.

The message to the ICTR was clear: Indict our people and we will paralyze your court.

In October, the Rwandan government softened its position on witness travel, feeding speculation that the prosecutor's office quietly had promised not to indict any Tutsis. Even if no secret deal has been reached, the outstanding dispute remains in front of the Security Council, which is expected to weigh in on this matter soon, Mr. Kennedy said.

This latest round of bad public relations for the ICTR comes at a particularly awkward time for the apostles of international justice. In February, the International Criminal Court is scheduled to be up and running, presumably on a far grander scale, multiplying all the administrative and jurisdiction headaches of the ICTR and the International War Crimes Tribunal for the Former Yugoslavia.

While many of the technical snags of the tribunal's early days lack of translators, power failures and computer shortages have been remedied, the structural problems of the ICTR remain, says a report by the International Crisis Group, a Belgium-based group that has conducted independent monitoring of the court from its inception.

Meanwhile, the Rwandan government has begun its own system of justice to clear its clogged prisons of the 115,000 people accused of participating in the genocide. About 11,000 of these village courts, or gacaca, are planned. The courts are named after the grass where traditional village meetings take place, and a successful three-month pilot program ended Nov. 26. More than 1,000 gacaca courts now are operating.

In the gacaca system, each of the accused stands before a panel of 19 elected judges in his hometown. The goal is to provide justice and reconciliation at the local level. Its motto, played on the radio and painted on billboards throughout the country, is: "The truth will set you free."

The gacaca pace of justice is expected to be much faster than that provided by the ICTR, said Rwandan officials. In its seven-year history, the ICTR has rendered nine verdicts, with one decision having been handed down in the past three years.

Some of the main reasons for the slow pace of trials at the ICTR are the judges' inexperience and inability to control their chambers, said defense and prosecuting attorneys.

The judges have a difficult task, given that their chambers are operating under a set of rules no one has mastered: a cobbling of common- and civil-law procedures with virtually no precedent to guide it, save Nuremberg and Tokyo. Trials proceed in three different languages and as many legal cultures as there are lawyers and judges in the courtroom.

In Trial Chamber I, the president of the tribunal, Navanethem Pillay of South Africa, shares the bench with judges from Norway and Senegal. All of them are entitled to ask about legal precedents in their own countries or, for that matter, in any of the United Nations' 191 member states.

"How can we assess truth in Colombia or Afghanistan with but one rule of evidence? We simply can't," Ken Flemming, an Australian senior trial attorney at the ICTR, said at an October conference sponsored by the African Legal Aid Society.

These types of problems had been predicted from the beginning by the Kigali government, which never was enthusiastic about the Arusha tribunal. At the very least, it wanted the trials to be held in country, on the soil stained with the neighbor-on-neighbor killings. The Rwandan authorities wanted to prosecute the genocidaires and try them under a Rwandan legal code, which includes corporal punishment. The ICTR does not include the death penalty.

The new Kigali government was worried that the tribunal would be hampered by the same forces of international sluggishness that prevented the United Nations from interceding in Rwanda and stopping the genocide in the first place.

They noted that the United Nations didn't call those 100 days of killing a "genocide" until it was over.

Today, the defense lawyers representing the accused at the ICTR deny that any "genocide" has occurred. The events set into motion in April 1994 were a "civil war," said Rene Martel, a Canadian defense attorney. Killing was everywhere in the fog of war, amid a frenzy of tribalism and blood, he said. It is part of the defense's strategy to argue that 1.5 million to 2 million Hutus were killed in a backlash genocide.

Just as the figure of Tutsi deaths varies from 500,000 to 1 million, no one is certain about Hutu deaths.

One U.N. report put the number at 10,000.

To avoid the accusation that it is nothing more than a victor's court, the ICTR is under considerable pressure to indict at least one Tutsi, if only for the sake of symbolism. As a result, the ICTR is pressured constantly to offend the government, whose cooperation is crucial for it to undertake its work. It is well understood in Arusha how easily the Rwandan government can freeze the court.

Even if the Rwandan government's full cooperation can be assured, the ICTR still needs to contend with the citizens of Rwanda. In July, the survivor group Ibuka started urging Rwandans to stop cooperating with the ICTR.

"We have addressed our grievances to the ICTR, but it has not yet deigned to reply. This unacceptable silence is another form of disdain towards the victims of the genocide," said Antoine Mugesera, the chairman of Ibuka.

Mr. Mugesera cited an incident in November when judges laughed as the defense attorney cross-examined a witness who was gang-raped repeatedly for a couple of weeks, asking her questions like, "Did you bathe in between?"

In addition to witness complaints, defense and prosecuting attorneys complain that in seven years the judges have yet to establish standard rules of evidence. As for comparison with traditional common-law courts, Diana Ellis, a British queen's counsel, said, "In the Old Bailey, I'd have my client off in no time," though she is not optimistic for an acquittal in Arusha.

The tribunal appears to be in an impossible position.

If it pursues the kind of impartial justice that the international community demands, then it will be effectively shut down. Add to that the fact that the ICTR seems incapable of remedying many of the technical problems that have beset it from day one, giving indignant Tutsis and defiant Hutus every reason to question the court's legitimacy.

As a result, say defense and prosecuting attorneys, the court is unlikely to offer any sort of resolution, let alone justice, that will be acceptable to any of the involved parties: the Rwandan people, Hutu and Tutsi, or the international community.


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