The arrest and subsequent release of American human-rights lawyer Peter Erlinder in Rwanda on charges of “genocide denialism” last month has refocused attention on the work of the International Criminal Tribunal for Rwanda.
Erlinder, lead counsel for the tribunal, was arrested while acting as defence lawyer for Victoire Ingabire, who was arrested when she returned to Rwanda after 16 years in exile. Her goal was to be a presidential candidate to oppose President Paul Kagame in the national election in August. She was accused of terrorist activities and of furthering genocide ideology.
The tribunal was established in 1994 to bring to trial the masterminds of the Rwandan genocide in which about 800 000 Tutsis and moderate Hutus were killed by Hutus.
International watchdog organisations including Human Rights Watch have in the past criticised Kagame and his Rwandan Patriotic Front government for intolerance and accused him of suppressing dissent.
The imprisonment of Erlinder and Ingabire seemingly confirms this and is an uncomfortable reminder of the intolerance of the Hutu government before the 1994 genocide, when Tutsis were subjected to discrimination.
The tribunal was set up to bring justice to Rwanda. But Kagame has been critical of it since its inception, claiming that its Western-style processes are unsuited to an African country.
The government has complained that the court, based in Arusha, Tanzania, is too far from Rwanda and expensive court cases are drawn out over many years because complex legal procedures are followed.
Erlinder has also slammed the tribunal — but for different reasons. He has claimed that it does not give genocide accused a fair trial. In 2004 he led a strike by defence lawyers at the tribunal.
Earlier this month the UN Security Council quietly extended the deadline of the tribunal, which was supposed to wrap up proceedings in 2008, whereas cases on appeal had to be finalised by 2010.
The terms of office of the judges of the trial chambers have been extended to December 31 2011, and the terms of office of the Appeals Chamber judges were extended to December 31 2012.
The tribunal, which tries high-level perpetrators, has been widely lauded in the legal world for its precendent-setting rulings.
Before 1998 little attention was given to rape as a war crime. This changed when presiding judge Navaneetham Pillay convicted Jean-Paul Akayesu, a former Rwandan mayor, on charges including rape.
The tribunal was also the first to indict a former leader of state, giving Jean Kambanda, Rwanda’s prime minister before the genocide, a life sentence in 1999 after he pleaded guilty to all charges against him.
The tribunal is the only international court to have indicted a woman for genocide. Pauline Nyiramasuhuko, a former minister of family and women’s affairs, is standing trial on charges including conspiracy to commit genocide, crimes against humanity and rape.
She allegedly identified Tutsi women for rape by the Interahamwe, including her son and former military commander Arséne Salom Ntahobali. He is also on trial.
In addition, the tribunal was the first international court to try people accused of perpetrating genocide through the media. Ferdinand Nahimana and Jean Bosco Barayagwiza, executives at Radio Television Libre des Mille Collines (RTLMC) and Hassan Ngeze, owner of the newspaper Kangura, were found guilty of incitement to genocide, genocide and crimes against humanity.
Fifteen years after its establishment the tribunal has completed 33 cases, with 23 still in progress.
One of its biggest headaches is that 10 high-level perpetrators remain at large. They include Félicien Kabuga, accused of financing the RTLMC and importing millions of pangas, hoes, machetes and other weapons used during the orgy of violence that erupted on the morning of April 7 1994 and that lasted 100 days.
Kabuga has evaded justice for 15 years despite a reward of $5-million for his arrest under the United States’s Reward for Justice Programme. The tribunal believes that he is living in Kenya, where he allegedly enjoys the protection of supporters of the former president Daniel arap Moi. In a submission to the Security Council in June this year the tribunal president, Judge Dennis Byron, complained that Kenya “refuses to comply with its cooperation obligations under Article 28 of the tribunal’s statute”.
It remains unclear what will happen if the fugitives from justice are arrested, as insufficient time remains for them to be tried.
To deal with génocidaires, Rwanda overhauled its judicial system and scrapped the death penalty. But to date the tribunal has transferred only dockets of low-level perpetrators who have been identified but not arrested, provoking the anger of the Rwandan authorities.
According to the US legal publication, Jurist, Rwanda’s prosecutor general, Martin Ngoga, told the Security Council in June that this undermines the country’s judicial reforms and hinders national reconciliation.