Responding to Rwanda: Accountability Mechanisms in the Aftermath of Genocide.

• Author: Scharf, Michael P.

After the, Nazi Holocaust, the world community pledged "never gain." Yet the 50 years that have followed the Nuremberg trials have been a golden age of impunity as over 170 million civilians have been killed by their own governments without any hope that their killers would ever be brought to justice.(1) Due to Cold War politics, no steps toward international accountability were pursued when two million people were butchered in Cambodia's killing fields, 30,000 disappeared in Argentina's Dirty War, 200,000 were massacred in East Timor, 750,000 were exterminated in Uganda, 100,000 Kurds were gassed in Iraq or 75,000 peasants were slaughtered by death squads in El Salvador.(2)

The world's most recent genocide occurred in the small central African country of Rwanda, where from April to July 1994, members of the Hutu tribe murdered over 800,000 members of the Tutsi tribe.(3) Comparing the scale of the international crimes committed in Rwanda to those committed in Nazi Germany, the exiled prime minister-designate of Rwanda asked, "Is it because we're Africans that a court has not been set up?" In November 1994 the United Nations Security Council, which had been criticized for failing to take action to prevent or halt the slaughter, responded by creating the International Criminal Tribunal for Rwanda with jurisdiction over the genocidal acts committed in Rwanda between 1 January and 31 December 1994.(4)

This article addresses the question of whether the creation of an international tribunal was the best available choice for responding to the 1994 genocide in Rwanda. By using Rwanda as a case study, it analyzes the range of potential accountability mechanisms and examines the problems and challenges presented by international criminal trials.

ASSESSING THE ACCOUNTABILITY OPTIONS IN RWANDA

Historically, the international community has relied on five alternative ways of responding to violations of international humanitarian law: (1) doing nothing, (2) granting amnesty, (3) creating a truth commission, (4) assisting in domestic prosecutions and (5) creating an ad hoc international criminal tribunal to try the offenders.(5)

The most frequent response of the international community to genocide, crimes against humanity and war crimes has been to do nothing. Very few of the perpetrators of such crimes have ever been brought to justice, and the basic truth of what happened has seldom been exposed by governmental bodies or governmental organizations.(6) Sometimes this has resulted from international indifference or paralysis. On other occasions, justice and truth were bartered away to achieve short-term peace. Rwanda was somewhat unusual in that the victims of the genocide--the Tutsis--emerged victorious from the civil war, but the country was so decimated that the new Tutsi government sought international assistance to achieve accountability for the genocide.(7) Given the international community's failure to head off or halt the Rwandan genocide, there was tremendous pressure for the U.N. Security Council to do something in response to the atrocities in order to shore up its credibility.(8)

The granting of amnesty(9) can be useful in settling civil conflicts or facilitating the exit of a dictator and a transition to democracy. These short-term benefits render the use of amnesty an attractive tool to the international community.(10) In the past few years, the United Nations, in order to bring an end to abuses and restore peace, has embraced de jure or de facto amnesties for perpetrators of attacks on U.N. peacekeepers in Somalia,(11) apartheid crimes in South Africa and torture and disappearances in Central America.(12) The most recent example concerned the military leaders in Haiti, who in 1992 had murdered some 3,000 civilians perceived as enemies of the regime.(13) In order to induce the Haitian military leaders to relinquish power to the democratically elected government, the U.N. Secretariat helped negotiate an amnesty for the military leaders,(14) and the Security Council later endorsed the peace accord containing the amnesty provision as the "only valid framework for the solution of the crisis in Haiti."(15) In the short run, the amnesty achieved more for the restoration of human rights in Haiti than what would have resulted by insisting on punishment and risking political instability; President Jean Bertrand Aristide was permitted to return to Haiti and reinstate a civilian government, the military leaders left the country, much of the military surrendered their arms and most of the human rights abuses promptly ended--all with practically no bloodshed or resistance.(16)

Yet amnesty would not have been a valid option for Rwanda. The provision of amnesty to the Hutus responsible for the 1994 genocide would have been in violation of the Genocide Convention, which provides an absolute obligation for states parties to prosecute persons responsible for genocide as defined in the convention.(17) Indeed, this was one of the reasons the U.S. government and the other members of the Security Council were initially reluctant to use the "genocide" label for the atrocities in Rwanda.(18) In addition to this legal obstacle, there are several reasons why an amnesty would not have made sense under the circumstances. Failure to prosecute genocidal crimes in Rwanda, which has suffered from repeated cycles of ethnic violence and abuse for 30 years, would have served as a virtual license to repeat the crimes.(19) As it was, Tutsis who had suffered at the hands of the Hutu extremists had already begun seeking personal revenge since no prompt effort seemed to be imminent to bring those responsible for their suffering to justice.

Finally, given the scale of the atrocities in Rwanda, if the international community had encouraged or merely condoned an amnesty for the perpetrators, it would have sent a signal to other rogue regimes throughout the world that they have nothing to lose by engaging in such acts. For instance, history records that the international amnesty given to the Turkish officials responsible for the massacre of more than 1 million Armenians during the First World War encouraged Adolph Hitler some 20 years later to conclude that Germany could pursue his genocidal policies with impunity In a speech to his commanding generals, Hitler dismissed concerns about accountability for acts of aggression and genocide by stating, "Who after all is today speaking about the destruction of the Armenians?"(20) Similarly, the failure of the international community to prosecute Pol Pot, Idi Amin, Saddam Hussein and Mohammed Aideed, among others, likely encouraged the Hutu extremists to launch their genocidal campaign against the Tutsis in Rwanda with the expectation that they would not be held accountable for their international crimes.

A third alternative was to set up a truth commission, as was done in South Africa in 1996(21) and El Salvador in 1992.(22) Truth commissions can establish a historic record of international crimes, thereby "preventing history from being lost or re-written, and allowing a society to learn from its past in order to prevent a repetition of such violence in the future."(23) Moreover, by acknowledging the suffering of victims and their families, helping to resolve uncertain cases and allowing victims to tell their story, a truth commission can serve as a sort of "historical group therapy session" for an entire country, facilitating national reconciliation and individual rehabilitation and imparting to the citizenry a sense of dignity and empowerment that can help them move beyond the pain of the past.(24) In addition, truth commissions can promote justice by imposing moral condemnation and laying the groundwork for other sanctions and victim compensation. Finally, truth commissions can contribute to the future by offering specific recommendations for reform. Past truth commission reports have included recommendations covering military and police reform, the strengthening of democratic institutions, measures to promote national reconciliation and reform of the judicial system.(25)

Although truth commissions can play an important role,(26) they are a poor substitute for prosecutions. Unlike courts of law, they do not have prosecutory powers such as the power to subpoena witnesses or punish perjury. They are inherently vulnerable to politically imposed limitations and manipulation; their structure, mandate, resources, access to information, willingness or ability to take on sensitive cases--even the wording of the final report--are all largely determined by political forces at play when they are created. When truth commissions name perpetrators, they impose the moral punishment of public condemnation, sometimes combined with the sanction of lustration--the disqualification from public office. Yet because of their institutional limitations, truth commissions do not first provide those named as perpetrators with the panoply of rights available to a criminal defendant.(27)

The fourth option was for the international community to have assisted the government of Rwanda in launching domestic prosecutions as the exclusive means of bringing the perpetrators of the genocide to justice. The most authoritative rendering of the truth is possible only through the crucible of a trial that accords full due process. Such trials can generate a comprehensive record of the nature and extent of violations, how they were planned and executed, the fate of individual victims, who gave the orders and who carried them out. Supreme Court Justice Robert Jackson, the U.S. Chief Prosecutor at Nuremberg, underscored the logic of this proposition when he reported that one of the most important legacies of the Nuremberg trials following the Second World War was that they documented the Nazi atrocities "with such authenticity and in such detail that there can be no responsible denial of these crimes in the future and no tradition of...