The long road to justice

by Jack Tame / 21 January, 2016
After 21 years, an international court that New Zealand helped establish has delivered its final verdict on Rwandan war criminals.
Judge Jonathan Moses: Rwanda’s genocide was the equivalent of “three 9/11s. Every day. For 100 days.” Photo/Simon Young
Judge Jonathan Moses: Rwanda’s genocide was the equivalent of “three 9/11s. Every day. For 100 days.” Photo/Simon Young


In his neat office above the Manukau District Court, Judge Jonathan Moses keeps a few personal effects. Near a photograph of his wife and children, two handmade dolls in camouflage uniforms stand to attention on a shelf, unlikely sentries born in an African market and now retired in New Zealand.

Close to the desk is a frame with four photographs from Rwanda’s 1994 genocidal civil war. One shows a soldier swinging an AK-47 at an ad hoc military checkpoint. In another, dozens of distressed people fill a church’s pews. No one is smiling. In the most alarming shot, a group of young people pose with guns and crude weapons. Moses points out a girl in the photograph. She is holding a grenade.

Moses recalls that when he went to Rwanda with his wife and their three school-age children, they expected to stay only a year. But in 2001, he accepted a job with the United Nations as a lawyer for an  international criminal tribunal: he spent the next eight years prosecuting Rwandan war criminals.

Just before Christmas, 21 years after the tribunal’s formation, Moses watched from New Zealand as the court delivered its final decision.

The wholesale slaughter of Rwanda’s Tutsi population by the ethnic majority Hutu began in early April 1994. Hutu militia moved through the country, killing on a scale and with a speed and barbarity that sets Rwanda’s atrocities apart in modern human history.

As many as 60% of those who died were killed with farm implements, says Moses.

“It wasn’t a quick bullet that ended their lives. It was machetes, hoes, other handmade implements that caused the deaths.”

In a little over three months, according to most estimates, more than 800,000 died. “Three 9/11s. Every day. For 100 days.”

Yet as many have remarked of people who have committed horrendous acts,  Moses observes that many of the killers don’t seem like devils. “If many of them sat down in a room with us here, you might walk away and think, ‘Oh yeah, jolly decent people,’” he says.

Judge Jonathan Moses’ reminders of Rwanda’s civil war.
Judge Jonathan Moses’ reminders of Rwanda’s civil war.

WHEN THE WORLD LOOKED AWAY


In central Africa, at the juncture between Uganda, Tanzania and the Democratic Republic of Congo, Rwanda is roughly the size of the Waikato. A Hutu political movement developed during the country’s civil war in the early 1990s, and when Rwanda’s Hutu-led Government was threatened by a Tutsi rebellion, the assassination of the country’s president proved a catalyst for tragedy.

When the genocide began, much of the world was distracted or even complicit. War and genocide continued in former Yugo­slavia and, following the Battle of Mogadishu and the so-called “Black Hawk Down” incident in October 1993, the US remained wary of intervening in African conflicts.

The period also coincided with New Zealand’s month-long term as chair of the United Nations Security Council. As daily reports of Rwanda’s horrors filtered through to New York, New Zealand’s then Ambassador to the UN, Colin Keating, desperately promoted an immediate UN-sanctioned intervention. The council’s permanent members resisted his team’s efforts and within 10 weeks, the council recorded what is now widely considered its greatest failure.

“With hindsight, they could see the significance of what New Zealand had been arguing and the fact that something needed to be done,” says Keating of the Security Council’s permanent members.

Having missed the opportunity for intervention, the UN faced the responsibility of securing some semblance of justice for those who were butchered. Once the ­Security Council had officially acknowledged that the genocide had occurred, the New Zealand UN team began drafting a resolution to establish an international criminal tribunal to try the most egregious cases.

“For a lot of the permanent members of the Security Council, there was a sense of guilt or responsibility about the failure to stop the genocide,” says Keating. “New Zealand seized ownership of the issue and drove the process.”

Working with uncharacteristic speed and consensus, Security Council members used the recently established International ­Criminal Tribunal for Yugoslavia as a blueprint for the Rwandan model. But in contrast to that tribunal and the Inter­national Criminal Court, both based in The Hague, the Security Council agreed to set up Rwanda’s court in Africa, close to the scene of the atrocities. It chose Arusha, in northern Tanzania, 1000km east of Kigali.

On November 8, 1994, a mere four months after the genocide ended, the UNSC passed Resolution 955 and established the International Criminal Tribunal for Rwanda (ICTR).

A wounded Tutsi man. Photo/Getty Images
A wounded Tutsi man. Photo/Getty Images


The mind-boggling numbers of the Rwandan dead can dull our sense of the genocide’s inhumanity. But Moses remembers a girl whose story encapsulates the tragedy.

“She was carrying a child,” he says, his voice catching a little, “and running away from the massacre scene. A bullet went through her arm and killed her child. She’s sitting there with the mark on her arm that reminds her every day of her baby being killed.”

In the mid-2000s, the woman appeared as a witness in one of the ICTR’s most high-profile trials, one for which Moses led much of the prosecution evidence. Dubbed the “Butare” case, for the Rwandan city and prefecture in which the atrocities occurred, it involved six defendants who were charged with genocide, crimes against humanity, conspiracy and genocidal rape.

“There were a number of crime scenes in various parts of Butare,” says Moses. “Because it was [initially] seen as being a more peaceful prefecture, refugees from other prefectures flooded in and so people were seeking refuge in large numbers.”

But instead of being a place of safety, Butare was the scene of more deaths than any of Rwanda’s other 11 prefectures. Huge groups of Tutsis sheltering in churches and public offices were rounded up and massacred. Some estimates put the Butare death toll at more than 200,000.

Of Butare’s six defendants, two attracted particular attention. At the time of the killings, Pauline Nyiramasuhuko was Rwanda’s Minister for Family Welfare and the Advancement of Women. Her son, Arsène Shalom Ntahobali, led a militia group implicated in much of the Butare bloodshed.

The pair were called to the prefecture from the Rwandan capital shortly after the genocide began. At that stage, Butare was still considered a comparatively safe region, though with Nyiramasuhuko’s arrival, that situation changed dramatically.

In a particularly barbaric episode detailed during the Butare trial, vehicles with loudspeakers drove through the prefecture’s suburbs and advised Tutsis to gather at a local stadium to receive food and shelter from the Red Cross. The announcement was a trap. Survivors recall Nyiramasuhuko giving Ntahobali’s Hutu militiamen a chilling order before they massacred the crowds using machine guns, hand grenades and machetes. “Before you kill the women, you need to rape them.”

Nyiramasuhuko and Ntahobali fled the country but were arrested in Kenya in 1997 with the former Rwandan Prime Minister. They were indicted into the ICTR, but the case dragged on and the Butare accused didn’t appear in court until 2001. Proceedings were repeatedly delayed and legal teams changed.

In 2011, the tribunal judges finally ­delivered their verdict: Nyiramasuhuko and Ntahobali were found guilty. She became the first woman to be convicted by an international court of genocide and genocidal rape.

Convicted war criminal Pauline Nyiramasuhuko in 2011.
Convicted war criminal Pauline Nyiramasuhuko in 2011.

THE STIGMA OF THE VICTIMS


For the genocide victims, the international justice process was often a clumsy and traumatic experience. Estimates suggest few female survivors were not exposed to rape and sexual abuse during the mass killings, and many endured significant stigma in recalling their experiences.

At one stage, the Butare trial was delayed when the sitting judges laughed as a rape victim was questioned about her attack.

The nature of UN-sanctioned justice proceedings meant the accused enjoyed fair trial rights, which did not similarly benefit their victims and witnesses.

“Part of the healthcare meant that for those who had contracted HIV, they were provided with antiretroviral drugs,” says Moses.

But free, high-quality healthcare did not extend to tribunal witnesses. “Many of the victims of the genocide and the witnesses didn’t have access to those drugs.”

For witnesses and victims, just attending the Tanzania-based court was a stressful logistical exercise. Many of them first had to travel to Rwanda’s capital, Kigali, from small villages of basic mud and concrete huts. In Kigali, they had special travel documents prepared before flying to Arusha in what for many was their first experience on an aeroplane. In Arusha, they stayed in safe houses, isolated from their families, while waiting to give evidence.

And for survivors of heinous violence, the cross-examination was often insensitively combative. Moses remembers leading the evidence of a young man in the Butare trial.

“His dad had died before the genocide, but his mum was still alive and of his several siblings, he was the only one to survive. He was 13 or 14 at the time. He reminded me of some of my old clients around here. He was a bit staunch. He sort of gave you ‘the look’,” says Moses, raising his eyebrows.

The young man described to the court how he’d survived a massacre in a Butare church.

“There were 430 people in the church – 430 taken out and he was the only survivor. He’d been macheted or bashed over the head. He crawled out from under the pile of bodies and survived.”

As the young man was cross-examined, Moses remembers a defence lawyer implying the man’s murdered mother might have been responsible for allowing him and his siblings to be attacked. His staunch demeanour crumbled.

“His answer came out not as ‘my mother’ or ‘mum’. The translation into English was, ‘Mummy’.”

Survivors resting at a Red Cross Hospital in Kabgayi. Photo/Getty Images
Survivors resting at a Red Cross Hospital in Kabgayi. Photo/Getty Images

SUCCESSES AND FAILURES


By the end of July 1994, the Rwandan ­Patriotic Front, led by Paul Kagame, overran the Government and seized control of the country. The genocide ended as suddenly as it had begun.

In the two decades since, Rwanda has made extraordinary political and social advances. Kagame won the presidency in 2000 and remains immensely popular. Despite criticism from some human rights advocates and journalists, he has overseen a period of economic growth and increasing social stability. Kagame abolished the death penalty and in 2009 oversaw Rwanda’s admittance to the Commonwealth. Despite drawing international scorn last year for a national referendum and constitutional amendment that will allow Kagame to run for another term as president, Rwanda has been credited in recent years as being among the least ­corrupt countries in Africa.

In December, days before the ICTR judges delivered their final decision, New Zealand’s permanent representative to the United Nations addressed the Security Council.

Gerard van Bohemen reminded the council of New Zealand’s leadership role in establishing the tribunal in 1994, but acknowledged that more than two decades of proceedings had not been without their problems.

“The tribunals have not been perfect,” he said. “But we reject any suggestion that the tribunals have failed.”

After 5800 days of proceedings, the estimated cost of the ICTR is more than US$2 billion, a huge expense in the eyes of its critics. The court indicted 93 people, but the bureaucracy of international justice made for painfully slow progress throughout.

“Judicial machinery is inherently expensive. Judicial processes are slow,” van Bohemen said.

Keating agrees. “We were always conscious of the fact that this was an international tribunal that was going to be a huge experiment.”

International Monetary Fund managing director Christine Lagarde with Rwanda’s President Paul Kagame in Kigali in 2015. Photo/Getty Images
International Monetary Fund managing director Christine Lagarde with Rwanda’s President Paul Kagame in Kigali in 2015. Photo/Getty Images


He says one of the tribunal’s crucial achievements was getting the Rwandan Government to agree to exclude the death penalty as a punishment for the ICTR to use.

When asked about the cost of the tribunal, Moses dismisses any notion the money would have been better spent on reparations or aid.

“It is not like a domestic court situation.  The logistics are just huge, and whether some of those had been thought out, I don’t know.”

All ICTR proceedings were conducted in three languages: English, French and Kinyarwanda (Rwanda’s official language). Prisons and courts were maintained and staffed, and legal teams were flown to Arusha and Kigali from around the world.

In two decades, 61 war criminals have been sentenced by the ICTR. But Moses considers the court’s success can be measured by more than just its total of convictions and acquittals.

“Historically, rape has been seen by the victors in conflict situations as probably the spoils of victory,” he says.

Rape previously had no commonly accepted definition in international law, but the ICTR prosecuted rape as a war crime.

“In Rwanda, it really did have a particular function that was recognised as part of genocide.”

Keating believes that in Rwanda today, New Zealand’s promotion of a domestic justice process is more greatly appreciated than the UN-led version. In addition to the ICTR, Rwanda established “Gacaca” – village-based courts where almost two million Hutus who were implicated in the genocide were tried in exchange for community-based punishments.

“It had quite a significant healing effect in the society, because it meant people weren’t being held in prison for long periods and then tried in criminal processes that inevitably went on for years,” says Keating.

“That was the thing they actually most remembered the New Zealand contribution for. Not what the tribunal achieved, but what we had been suggesting needed to be done domestically to supplement the tribunal.”

Kagame at the UN General Assembly in New York in 2015. Photo/Getty Images
Kagame at the UN General Assembly in New York in 2015. Photo/Getty Images

THE FINAL VERDICT


In the week before Christmas, Jonathan Moses divided his attention between two legal worlds.

At the Manukau District Court, he presided over a rape trial. But the night before summing up in the case, he checked into the courtroom in Arusha via a YouTube link. The feed switched between shots of the public gallery, a cramped bench with each of the accused and their respective lawyers, and a row of UN judges seated before the baby blue of the UN emblem.

As the judges systematically worked through each of the appeal verdicts, a camera turned to individual shots of the accused. It is 16 years since Pauline Nyiramasuhuko and her son were taken into custody. They have aged, but look healthy.

The verdicts were upheld. Nyiramasuhuko and Ntahobali had their sentences reduced from life imprisonment to 47 years in recognition of the time taken for the Butare trial process to be completed. But at 69, Nyiramasuhuko is unlikely ever to be freed.

Most of the ICTR infrastructure in Arusha is being dismantled. A liquidation team is selling vehicles and office equipment. Computers are being donated to local schools.

“I do believe in the work that it did. I do think it’s important,” Moses said as the court adjourned for the last time.

He thinks the Butare appeal decision is appropriate, and representative of the ICTR’s wider pursuit of people who commit genocide.

“Rulers and leaders realised that if they do that sort of thing, they are going to be brought to account.”

Keating agrees. “At this point in history, it’s so hard to get other perpetrators of mass atrocities before courts.”

Twenty-one years since he helped establish the ICTR, Keating says New Zealand’s work in Rwanda helped to develop a stellar reputation in international justice.

“We all should feel proud that these things happened on our watch and we were able to make a real difference in getting them across the line.”

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