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Healing Rwanda

Can an international court deliver justice?

Helena Cobban

8 The man at the witness table wears a gray suit, a too-blue shirt, a checkered brown-and-yellow tie, and gold-rimmed glasses. His face is heavyset, its mid-coffee coloring sheened with sweat. He is the defendant in this trial. Through the floor-to-ceiling Plexiglas that separates our long, thin public gallery from the similarly shaped courtroom we the people can see only his back. But his face looms large on the video monitors suspended above us.

I decide to walk along the public gallery from left to right, the better to observe each well-lit section of this distinctively shaped courtroom. On the far left I see the row of blond wood desks for the defendant or defendants, now empty. They face inward to the right, as do the two rows of desks for the defense attorneys that I walk past next. Then there’s a pillar in the Plexiglas. In the middle section of the courtroom is the elevated bench where three judges sit directly facing—and unnervingly close to—the witness and us, the public. Beneath the bench a pair of black-robed clerks hunt for documents in bulky box-files stacked three-high on metal carts. I pace on. Another pillar and then I see, facing in, toward the left now, two or three rows of desks for prosecuting attorneys. Beyond them, further right still, are the walled-in booths for the interpreters. The scene looks like a series of dioramas in an old-fashioned museum.

In the Tanzanian city of Arusha, a set of intriguing and tightly choreographed rituals is being enacted. Attorneys and judges in this bland, wood-paneled space all wear capacious robes patterned on the gowns of medieval European clerics. For the judges, the robes are mainly black, though they have broad red satin revers and cuffs. For the attorneys: mainly black, with occasional dashing streaks of color. All the legal professionals wear severe, French-style white jabots Velcroed around their necks, and headsets for the interpretation jammed down over their hair. Some of the headsets have tiny, curled British barristers’ wigs perched on top of them. (In one of the courtrooms here, the air is thick with quaint-sounding British courtroom locutions.) When the judges file in or out, a clerk barks “All rise; il faut se lever,” and we all do. If anyone else should enter or leave while the judges are sitting, that person pauses and bows gravely to the bench.

The UN Security Council established the International Criminal Tribunal for Rwanda (ICTR) in late 1994 in the aftermath of the terrible genocide that had engulfed Rwanda earlier that year. From early April to early July hate-crazed members of Rwanda’s majority Hutu population killed about 800,000 of the country’s one million Tutsis and about 200,000 moderate Hutus. Millions of Hutus participated in these (typically) low-tech killings. Though the UN had a peacekeeping force in Rwanda at the time, the Clinton administration and its Security Council allies worked to remove or reduce the force rather than have it intervene in the fighting. Some survivors of the genocide describe the ICTR as a product of Western guilt.1

Security Council Resolution 955 established ICTR for “the sole purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994.”2 The post-genocide government in Rwanda, which had a seat on the Security Council that year, cast the only vote against Resolution 955. Rwanda’s rulers had been the first to call for an international court but had strong reservations about the actual resolution, including the move to locate the court outside of Rwanda; Rwanda’s distrust of the ICTR has subsequently constrained important aspects of the court’s work.

Most people in the international human rights movement lauded the court—along with the parallel, ad hoc international tribunal for former Yugoslavia (ICTY)—as marking a watershed in the project of holding accountable perpetrators of genocide, crimes against humanity, and war crimes: the most heinous acts of the modern age.

In the nine years since Resolution 955, the initial excitement has largely eroded. The court has been plagued by both administrative problems and political controversy. At the end of August, the Security Council removed Carla Del Ponte, a feisty Swiss lawyer and the court’s chief prosecutor, from her job. (She will stay on as chief prosecutor of ICTY, with which the ICTR prosecutor’s position has until now always been twinned.) In a mid-September interview she said that “politics” had “played a big role” in her change of status. “Rwanda demanded my resignation several times. . . . Therefore, yes, pressure from Rwanda contributed to the non-renewal of my mandate.”3

To this point, anti-Tutsi génocidaires have filled ICTR’s docket. But Del Ponte had consistently pressed—against Rwandan government opposition—for continuing with “special investigations” of allegations that members of the Tutsi-led group that has ruled Rwanda since mid-1994 also committed indictable crimes during the genocide. (When I saw her in Arusha in April, she stressed to me that “we are proceeding with the special investigations.”) Now, after Gambia’s Hassan Jallow became Chief Prosecutor on October 1, the “special investigations” face an uncertain future.

Disagreements over “special investigations” have repeatedly set back the court’s pursuit of its Security Council mandate. In 2002 the work of the three trial chambers in Arusha was brought nearly to a standstill after the Rwandan government, acting in coordination with well-organized groups of genocide survivors in Kigali, persuaded most of the Rwandan witnesses who were scheduled to testify in Arusha to request postponements. More generally, the degree of political leverage that the Rwandan government has been able (often, with the support of the U.S. government) to exert over the court has caused many observers to conclude that it delivers, at best, “victors’ justice.” Indeed, the most notable such accusation came not from an observer but from one of the ICTR’s own judges, the Russian national Yakov Ostrovsky: “Not surprisingly, Hutu refugees see the international tribunal as a kind of ‘trial by victors’,” he told Moscow News in April 2002. In my own interview with him a year later, he sounded a more judicious note: “I see defense has equality [with the prosecution] from legal point of view, though perhaps not from practical point of view.”

“Victors’ justice” may not always be an entirely bad thing: the Nuremberg trials come to mind in this regard. But it is not what ICTR, ICTY, or the more recently established International Criminal Court (ICC) have promised to deliver. Indeed, the existence of the ICC—and the role that many people see ICTR and ICTY playing in helping to establish a body of law on which the ICC can draw—makes ICTR’s shortcomings a matter of great concern. For if indeed ICTR delivers a form of victors’ justice, is plagued by maladministration, and fails to achieve the Security Council’s goal of “contribut[ing] to the process of national reconciliation” in Rwanda—then what do these failings augur for the ICC?

The “Citadel of Boredom”

  To appreciate ITCR’s administrative challenges and apparent failures, return with me to Trial Chamber 2, where last April 14 Juvénal Kajelijeli was on Day 69 of his trial on eleven counts of genocide, crimes against humanity, and war crimes—the three crimes over which ICTR has jurisdiction. (In this court, the same act—for example, a murder—can be cited as falling into more than one of the three categories.)

Kajelijeli served as bourgmestre (mayor) of Rwanda’s Mukingo commune from 1988 through 1993, and he was reappointed at the height of the genocide in June 1994. He had allegedly been a founder and leader of interahamwe militia in Mukingo. In addition, when he was bourgmestre he exercised authority over local police and gendarmerie units.

His first ICTR trial day had been in mid-March 2001, when he faced a bench composed of Judges Laity Kama (Senegal), William H. Sekule (Tanzania), and Mehmet Güney (Turkey). But Judge Kama died not long after, and Judge Güney was assigned to the Appeals Chamber. In July 2001 Kajelijeli’s case started again from scratch, with Judge Sekule now presiding, assisted by Judges Winston C.M. Maqutu (Lesotho) and Arlette Ramaroson (Madagascar). Those three were still on the bench when I visited last April.

On Day 69 of Kajelijeli’s trial, defense lawyer Lennox Hinds of New York City is continuing his principal examination of his client. Hinds is a distinguished, balding African American with a whitening beard who peers down over his reading glasses and asks his questions in English. After a pause for a “relay translation,” Kajelijeli (who reportedly understands little English) answers in his mother tongue, Kinyarwanda. Kinyarwanda, English, and French are the three official languages of the court. The interpreters translate Kajelijeli’s answers to Hinds into both French and English.

Hinds is asking Kajelijeli about the questioning he was subjected to back in June 1998 when he was first apprehended in Benin, West Africa, by “agents” of the ICTR—presumably, people working for the Office of the Prosecutor (OTP). They had questioned Kajelijeli on his whereabouts on specific days around the beginning of the genocide. Hinds asks Kajelijeli about some changes he now seeks to make in that testimony. Suddenly, on my earphones I hear an anguished cry from one of the interpreters: “The French is not coming through!” A lengthy on-air discussion ensues between an interpreter and Judge Sekule in which the increasingly distraught interpreter explains that yet again, as she says, they have problems with the “relay” between two sets of interpreters. “Hinds must be asked to leave a longer pause before starting his questions!” she insists.

After proceedings resume, a question arises about two audio tapes made by the OTP people when they interrogated Kajelijeli after his 1998 arrest. Hinds has gotten hold of these tapes only recently and wants to enter them into the court’s record. Judge Sekule speaks at some length to the question of whether the whole tapes or just excerpts compiled by the defense should be played in court. The difference, we are told, would be between hearing 15 or 20 minutes of tape and a full three hours.

Hinds reminds the court that the OTP had originally denied in open court that the tapes even existed, and that they only later had said, “Oh sorry; yes they do” and unsealed them in The Hague. Then the prosecuting attorney (female, African, with a British-style wig) suggests that the “original” tapes from the interrogation may have been even longer than the ones Hinds got hold of. (Someone notes that she is not the same prosecutor who was working on this case from 1998 through 2000. So how would she know?)

The confused discussion of how to handle the tapes continues. Everyone is discussing the issue together, like neighbors around a kitchen table. Even the defendant has some suggestions. Judge Sekule has completely lost control of the courtroom. Finally, he suggests a break.

“All rise; il faut se lever.” And out the judges file.

I go back briefly to Trial Chamber 2 later in the morning, when the first tape is being played. We hear portions of the 1998 interrogation. Kajelijeli and his questioner are speaking in French about the events surrounding the launching of the 1994 genocide. After that tape finishes, uncertainty remains about the length of the second tape. So Judge Sekule orders a 95-minute lunch break.

I go back in mid-afternoon. Now Hinds is asking Kajelijeli to clarify some of the things he had said in the 1998 oral statements. (It is clear that people’s memories even of what happened in June 1998 are already very fuzzy. How much more so their memories of what exactly happened in 1994? Once Hinds and Kajelijeli get to discussing 1994, there are endless questions about the make and color of car a certain person was driving. In a normal criminal case those kinds of details could make or break a witness’s credibility. But now, nine years after a series of traumatizing events, can anyone’s credibility really hang on his ability to recall such details?)

Hinds repeatedly asks his client to spell out “for the record” the names of the individuals and the geographic locations that he mentions. All the spellings are painstakingly interpreted and reinterpreted into the court’s two other languages. To the left of Judge Sekule, Judge Maqutu is sitting with his eyes closed, leaning slightly back. It certainly looks as though he is asleep. (Maqutu is one of two ICTR judges who failed in their bid to seek reelection to the bench by the UN General Assembly in January. His term was due to expire in May, but he was still sitting on the Kajelijeli case in late September.)

One can sympathize with Judge Maqutu. Back in 1946, Rebecca West wrote of the Nuremberg courtroom, “The trial was then in its eleventh month, and the courtroom was a citadel of boredom. Every person within its walk was in the grip of extreme tedium.”4 But in the eleventh month of the Nuremberg trial everyone at least knew they were in the home stretch: that whole trial only lasted ten months and ten days. Here in Arusha, by contrast, two years into the Kajelijeli trial, everyone knows we are only about halfway through it—and that Kajelijeli is only one of about 90 individuals whom OTP wants to try. As of September 1, 2003, eight of ICTR’s indictees had completed both their primary trial in Arusha and their appeal hearing in The Hague; four still awaited appeals; three had been released either for lack of evidence or after being found not guilty; and one had died in custody. Nineteen other individuals were still, like Kajelijeli, slowly making their way through Arusha’s three courtrooms. Thirty indictees were in detention with their trials not even having started. (Some of these have been in detention, awaiting their day in court, since 1998.) And some 25 people whom the OTP wanted to try had not yet been detained.5 Clearly, the walls of Arusha’s “citadel of boredom” would not be breached anytime soon—though the Security Council has repeatedly told ICTR’s leaders that it wants them to wrap up the court’s work by the end of 2008.

Some in the UN’s management have been aware of the administrative problems plaguing ICTR’s work since the very beginning. In early 2001, they introduced a time-tracking system that requires the presiding judges and courtroom administrators all to sign off on a daily report on how time is used in each courtroom. The reports are posted on ICTR’s website, the report on Day 69 of the Kajelijeli trial—the day that I visited—reveals that precisely three hours and 36 minutes’ worth of work got done.

The Witnesses

  ICTR now has 800-some employees, and many are interesting and committed people. But during my nine days in Arusha observing the court’s work, I heard court employees remark several times that many other members of the staff—though not, of course, they themselves—were there only to ride the gravy train. Arusha, it should be noted, is a lovely place to live: less than an hour from the base of Mount Kilimanjaro, with lots of great game parks and mountain hiking all around; cheap household help; lots of English spoken. Plus, inviting UN salaries. I saw a number of staff members doing things other than work in their offices; and on the Friday I was there everything closed down at 2:30 p.m.

But something else was happening there besides some appalling failures of courtroom management and lax working habits. The OTP’s basic approach to its task seemed to be contributing massively to the court’s management problems. Prosecutors and judges at ICTR and ICTY have often told me how inspired they feel about being able to follow and build on the Nuremberg precedent. Although nearly everyone agrees that the Nuremberg legal process contained many flaws, what everyone seems to admire about Nuremberg was its ability to pull together and establish a just-about-incontestable historical record of all the worst things the Nazis did—to the Jews, the Roma, and other subject peoples, as well as to Allied prisoners-of-war—and to tease apart some of the details of exactly how the Nazis had been able (both technically and politically) to carry out such acts. The designers and implementers of Nuremberg had always placed didacticism very high among its goals. And to good effect. Consider how much easier the job of the Holocaust deniers would have been had the Allies not made a focused effort to compile as many as possible of the Nazis’ records regarding their war crimes and crimes against humanity, and then to lodge huge numbers of these documents into the official record of the Nuremberg Tribunal.6

The desire of ICTR judges and prosecutors to emulate Nuremberg’s didactic achievement is entirely laudable—especially because of the many “genocide-deniers” who continue to challenge the conventional descriptions of what happened in Rwanda in 1994. The didactic nature of the OTP’s approach is evident in the way it has—with the blessing of the bench—designed its work. Thus, the ICTR has followed the Nuremberg prosecutors in choosing to indict small numbers of high-level representatives of different sectors of society. As OTP attorney Simone Monasebian told me, “Our strategy was . . . to bring indictments against the most culpable people, but also people from broad sectors of society. The idea was, very much like Nuremberg, to make an example of all those who carried high responsibility in society.” The materials published by ICTR routinely divide the indictees into groups like “political leaders,” “military leaders,” “media leaders,” or “church leaders”—and many of the trials have been designed and conducted by using these same groupings.7

OTP’s desire to emulate Nuremberg has frequently been frustrated by the fact that Rwanda’s génocidaires never left anything comparable to the detailed trail of records that the Nazis kept concerning the actions they took against Jews and others. The current OTP has therefore sought to build its cases—and establish its historical record—overwhelmingly by relying on witness testimony. The way this has played out in the case of the trial known as “Military I” has been particularly instructive. This trial involves four notorious military leaders including Théoneste Bagosora, who as directeur du cabinet in the Rwandan Ministry of Defense in 1994 is widely viewed as having been one of the main architects of the genocide. In June 1998 the OTP informed the court that it wished to call some eight hundred witnesses for this trial.

Remember that most of these witnesses would have to be located, usually inside Rwanda; then taken to Kigali; then flown by the UN to Arusha and looked after there for however long it might take the court to schedule their appearance; and then conveyed back home. Moreover, nearly all the witnesses called by ICTR fear retaliation and so request protection of their identities. In an attempt to assure identity protection, the court’s Victims and Witnesses Support Unit (VWSU) maintains two separate support structures in Arusha: one for protected prosecution witnesses, the other for protected defense witnesses.8 In addition, in a determined nod to the “victims’ rights” movement, the VWSU tries to provide some basic items of humanitarian care—clothing, decent food, medical checkups—to the survivors of violence who go to Arusha as witnesses.9 And then, keep in mind that if the prosecution calls 800 witnesses, the judge would find it hard to deny the defense the right to call a comparable number of witnesses—or indeed, since each of the four defendants in the Military I trial has the right to call his own witnesses, they might call 3,200 altogether!

Faced with the OTP’s request to call 800 witnesses for this trial, the bench, not surprisingly, demurred. In the end it persuaded the OTP to bring the number down to 121. The trial finally began in Chamber 3 on April 2, 2002. The accused, however, were not present: they sent word through their lawyers that they were protesting the OTP’s failure to present some materials to them as the bench had ordered. Chief Prosecutor Del Ponte, who had come to Arusha from The Hague for the opening of this momentous trial, went ahead and presented the prosecution’s opening remarks anyway. The judge then adjourned the proceedings. Soon thereafter,the OTP replaced the lead attorney on the case.

The Military I trial resumed briefly in September 2002, but presiding judge Lloyd George Williams of St. Kitts and Nevis almost immediately criticized the new lead prosecutor. In May 2003 Judge Williams declared that he was withdrawing from the trial “for personal reasons.” (He was not the only judge to withdraw from the case. Fourteen months earlier, Judge Ostrovsky had resigned from it.) In early June ICTR President (Chief Justice) Erik Møse of Norway announced that he would be taking the trial to his own courtroom, Chamber 1, and hearing it there with two recently elected judges. Møse was able to win the agreement of the four defendants to the plan of continuing the trial where it had been interrupted rather than starting de novo, and on June 16 called Prosecution Witness (PW) number 3. In a fairly successful feat of courtroom management, Møse held 18 more days of hearings over the month that followed and heard from PW-3 and eight more witnesses. These trial days averaged around six hours. By July 18, Day 51 of the trial, the OTP had completed its presentation of 11 of its proposed 121 witnesses. (It had also asked to be allowed to introduce an additional half-dozen witnesses.)

Court time, and all the associated out-of-courtroom work by attorneys and others, is expensive. The OTP has its own sizable cadre of Arusha-based attorneys, who are compensated as fairly high-level UN staff. Because the defendants have all claimed indigency, their attorneys’ fees are all also paid by the UN. A lead defense counsel receives $220 per hour and a co-counsel $80 per hour; they can be remunerated for up to 175 hours per month. Defense attorneys receive an additional $100 per day for time they spend outside their home countries. They receive reimbursement only for coach-class travel to and from Arusha. (OTP attorneys have their way paid in business class for authorized travel.) One defense attorney, a high-ranking barrister back home in England, wrote to me, “For many advocates at the Tribunal, I understand the rates of pay compare very favorably with the remuneration they would receive in their home countries . . . though as far as I am concerned, I could earn significantly more in England.”

These “very favorable” salaries have, quite understandably, come with their own temptations. At the end of the 1990s, in response to persistent reports that defense attorneys at ICTY had been “splitting” their fees with clients in order to obtain and keep their lucrative representation arrangements—and suspicions that the same thing may have been happening at ICTR—the UN’s Office of Internal Oversight Services (OIOS) launched an investigation. They found that several former defense counsels at both courts had “either been solicited and/or have accepted requests for fee-splitting arrangements”; some defense teams at ICTR had “made arrangements for gifts to their clients, their clients’ relatives and other forms of indirect support and maintenance”; and some defense teams at both courts had, “hired friends or relatives of their clients as defense investigators.” OIOS also found that the issue of fee-splitting was linked to other matters such as, “problems in verifying claims for indigence submitted by the suspect/accused; . . . the fees paid to defense teams; and the use of frivolous motions and other delaying tactics before the Trial Chambers.”10 (OIOS was in a position only to recommend, not to mandate, corrective actions that the courts should take. In a follow-up report of February 2002, it stated that “both Tribunals have implemented most of the recommendations” but noted some areas of continuing concern.11 Within the broader context of defense counsels hiring of clients’ friends as investigators, the registrar terminated the employment of two defense investigators who were themselves credibly accused of having participated in the genocide. One of these, Joseph Nzabirinda, was indicted by the court.)

And so the court’s costs have continued to add up, day after mind-numbing day. In late fall 2002 the UN General Assembly’s Fifth Committee, which administers the organization’s budget, approved an allocation for ICTR for the biennium 2002–2003 that totaled $256.9 million. (By comparison, $322 million was given in foreign aid in 2000 to Rwanda’s 7.6 million people. Many extremely needy countries in Africa receive considerably less foreign aid than that.)

Two Judges

  “This tribunal has certain achievements that can’t be denied,” Judge Ostrovsky told me in April 2003 in his wood-paneled office in the ICTR building. “Some people say, however—and that includes me—that these results have been very modest.” Ostrovsky—a craggy older man with the courteous mien of the diplomat he had been in first the Soviet, then the Russian, Foreign Ministry—was not entirely negative about the court; but he certainly was impatient. At 76, he had not stood for reelection when the UN General Assembly elected judges to new ICTR terms back in January, so his term would be expiring at the end of May, and in April he was wrapping up his last involvements in Arusha.

He said he saw many reasons for continuing to try to accelerate the court’s work. “It has already been eight years. It becomes hard to remember—and we are totally reliant on witnesses, since we don’t have documents. Memories are hard to access! . . . Everything becomes very difficult eight or nine years after the events. One has to establish the credibility of the evidence; and the credibility of witnesses always depends on their disinterestedness. From this point of view, it is not easy to find them credible.” He had observed earlier that “as a rule, all prosecution witnesses are Tutsis who come from Rwanda, while all defense witnesses are Hutus who had left Rwanda.”

He recalled that Article 19 of ICTR’s founding statute mandated “expeditious” trials, and he said, “If a person committed a crime, we don’t need to hear one hundred witnesses! You know, the French have a saying, ‘Qui preuve trop, ne preuve rien.’ [He who proves too much ends up proving nothing.] That is quite relevant here.” He ascribed a lot of blame for the delays in the court’s work to the OTP. “You see, the prosecutors wanted to have joint trials here, as in Nuremberg. We judges were quite ready to go ahead with individual trials, but the OTP delayed because they wanted to pull together these large joint trials. But now, everyone needs to hurry!” He also complained about the sheer length and heavy reliance on historical detail that the OTP brought to its writing of indictments.

Ostrovsky notably did not show the same degree of “understanding” he had expressed to Moscow News a year earlier for the view of many Hutus that ICTR was providing only “victors’ justice.” He told me that he did recognize the practical advantages of the OTP:

But there is never equality between prosecution and defense in any system! For example, the prosecution is always a continuing body, with its own means of keeping long-term records. . . . Here, I know the OTP is more numerous than the group of defense attorneys. It has a big office inside Rwanda. It has contacts with the Government of Rwanda, and so on.

But the defense has every opportunity to prove innocence. The judges don’t need to take the practical disadvantage [of the defense] into account because after all it’s the OTP’s job to prove guilt. . . . We have good procedural protections for the defense. And then, the OTP has to prove its case “beyond a reasonable doubt.”

“One of the most outstanding achievements of our tribunal and ICTY,” Ostrovsky said, “is that for the first time we got the punishing of the crime of genocide.12 Also, these tribunals prepared the ground for the ICC. . . . It is really a pity that states like Russia, China, and the U.S. are not members of the ICC because then it looks as if the big countries of the world are above the law.” But he also warned that the ICC might face the same chronic administrative and political problems that have plagued ICTR.

Judge Møse was even more insistent than Ostrovsky that ICTR was enacting judicial procedures of a decent quality. “On process, this court’s work looks fair to me. Both sides contest this, but that’s not abnormal. Our weak point, however, is time. It’s difficult to explain to those who are not following us closely how complex, and therefore time-consuming, some of the proceedings are.”

When we talked, the wiry, intellectually passionate Møse was still vice-president of the court. The president at that point, South African Judge Navanethem Pillay, was soon to leave ICTR to become one of the first judges on the ICC. In late May Møse was elected by his fellow ICTR judges to succeed her. Before he came to ICTR in 1999, he worked as an appeals court judge in Oslo and a barrister at the groundbreaking European Court for Human Rights and taught human rights law in Norway and the UK.

Møse stressed that he did not see the number of witnesses being called in ICTR’s cases as excessive, “since they supplement and bolster each other. The problem here is that the prosecution and defense witnesses often tell two completely different stories. This is different from what you hear in disputes in national jurisdictions. So you need to hear a lot of them in order to reach a judgment.” He said he thought it should be possible to hear cases involving a single accused “in about 25 through 40 trial days,” whereas he saw trials involving multiple accused as very complex and time-consuming. But he also mentioned some of the factors that contribute to frequent interruptions: “The defense needs time after hearing the prosecution case to prepare its reponse; witnesses fall sick; witnesses are delayed or prevented from coming to Arusha; documents need to be translated; witnesses need to be brought from other countries and protected; the defense counsel needs to go home because the time they have scheduled to be here has expired . . .”

Resolution 955 instructed the ICTR to “contribute to the process of national reconciliation” inside Rwanda, and I asked Møse whether he thought the ICTR was carrying out that part of the mandate. He suggested that one need not adopt an “either/or” approach to the issue of judicial and nonjudicial mechanisms to accomplish this task and noted that the circumstances of each country are different. He cited Sierra Leone as an interesting case where the international community was trying to support the establishment of two parallel institutions—a criminal court and a truth-establishing commission. And inside Rwanda, the government was working with two different types of institutions in its approach to dealing with the scores of thousands of suspected génocidaires. The criminal-court system is used for persons suspected of being high-level organizers or ringleaders. A special new mechanism called the “gacaca [ga-cha-cha] court” system—a version of an indigenous truth-establishment mechanism called gacaca—has been modified to handle lower-level genocide suspects and brought under supervision of the country’s high court.13 In early October the government announced that the full-scale “trial phase” of the country’s 10,000 gacaca courts would start in February 2004.14

Møse described ICTR as a “third prong” in the policy of reconciliation, but he thought that it had limited effect because of its location outside Rwanda. He said that all the court’s judgments are videotaped and sent to Rwanda to be broadcast with a simultaneous translation into Kinyarwanda; but he noted, too, that lengthy intervals often pass between the judgments. “Our ability to contribute to reconciliation inside Rwanda would presuppose that what we say is received inside Rwanda,” he said. “A complicating factor has been that in periods the Rwandan government has had problems with the court.”

Møse stressed that he thought the fulfillment of the peace and reconciliation part of the Security Council’s mandate “mainly needs to be done by the society itself. An international tribunal can play a role, but only a subsidiary role. If the population can see that there is an institution that delivers fair justice within a reasonable time, then it can make a certain contribution. The final assessment will have to be done when the ICTR has finished its work.” Meanwhile, though, he felt that ICTR’s main achievement had been that it “maintains the [Rwandan] conflict on the map of the world conscience.”

That assertion may or may not be correct. Since 1994 atrocity has been heaped upon atrocity in the consciousness of the world: Sierra Leone, the Democratic Republic of Congo, the Marsh Arabs in Iraq, Chechnya, Liberia, etc. It is hard to judge whether, amidst all this atrocity, the terrible happenings in Rwanda would have been forgotten had ICTR not existed. I suspect not. But what is clear is that the hope expressed in Resolution 955—that the ICTR’s establishment would have a broad deterrent effect, that it would “contribute to ensuring that such violations are halted and effectively redressed”—has not been fulfilled.15

Lost Dreams

  During the 1990s the successive creations of ICTY, ICTR, and the ICC captured the imagination of human rights activists worldwide. Finally, so many decades after the UN’s 1948 adoption of the Universal Declaration on Human Rights, and of the Genocide Convention, these new courts could hold accountable rights violators who until then had been able to hide behind the shield of national sovereignty or other forms of impunity. A number of attorneys, organizers, and activists who were filled with pro-international court idealism found their way into jobs in the new courts. Judge Møse was one of those. And two of the trial attorneys with whom I had the lengthiest conversations had also come to the court filled with idealistic motives. But their experience at ICTR had been sobering.

Diana Ellis is a British attorney who is a senior barrister in the criminal-courts division and also sometimes runs her own courtroom as a judicial magistrate—a kind of supplementary judge. In London she works in the same barristers’ “chambers” as Steven Kay, one of three lawyers appointed by an ICTY bench in The Hague to be amici curiae in Slobodan Milosevic’s lengthy trial there.16 “I had never done anything like this before,” she told me, referring to her experience at ICTR. “I was fascinated by the prospects of international justice, and by the magnitude of the crimes. Plus, I felt I could contribute to the development of the idea of international justice.”

Ellis came to Arusha to serve as co-counsel to Jean-Marie Biju-Duval, the French lawyer who was lead counsel for Ferdinand Nahimana, the former head of Radio Télévision Libre des Milles Collines, a broadcasting institution that did much to stir up anti-Tutsi feelings before and during the genocide. Nahimana was in a joint trial with two other leaders of the genocide-era media. When I went to observe the “Media” trial on April 9, I saw Ellis standing up a number of times to sharply voice objections to actions or lines of questioning being pursued by the lead prosecution lawyer, Simone Monasebian. Ellis later explained to me that lawyers in the French-style civil law tradition are much less familiar with the adversarial style of Anglo-American-type courtrooms, so Biju-Duval often relied on her to voice objections.

The Media trial had been running since October 2000. (I observed Days 228 and 229 of its proceedings.) In her time at ICTR Ellis said she had found “a great deal of incompetence. It is appalling! In a courtroom you have to have the maximum speed of proceedings that is consistent with fairness. The proceedings here should be much sharper and more precise! They should make it defendant-focused. People need to understand that one good witness is better than 20 poor witnesses.”

She said, “I find these tribunals are a way to no reconciliation. . . . The court was set up for Rwanda, and the Rwandan government controls it. It controls the evidence now. It controlled the evidence that was handed over to the FBI in 1994. Here, you only get their side.” She said that when the defense goes to Rwanda to conduct investigations that Rwanda is supposed to allow under Article 28 of the court’s founding statute, “We get no cooperation, no access.”

Ellis, like many other close observers of the court, judged that the Rwandan government received significant backing from the Bush administration in many of its policies toward the court. She recalled looking at some relevant documents with a U.S. State Department stamp on them. She could not introduce them as evidence without being able to prove provenance. “So last May, I went to DC to follow up, to try to get hold of official copies from there. They all denied having any information.”She said Allison Des Forges, a well-known U.S. expert on Rwanda who has served as an expert witness for the OTP in a number of cases, told her that chief prosecutor Carla Del Ponte had successfully pressed the United States for access to “28,000 pages” of microfiched information held by the government. “I then filed a motion with Judge Pillay protesting that we were not given equal access. Pillay called Pierre Prosper who promised to send it all to us. But he did not.” (Pierre-Richard Prosper, a Haitian-American who heads the State Department’s Office of War Crimes Issues, used to work for Del Ponte in the OTP. He was the lead attorney on the Akayesu case.)

Ellis said she had invoked Article 28 of the ICTR (“States shall cooperate with the International Tribunal for Rwanda in the investigation and prosecution of persons accused . . .”) in lodging requests for relevant information with Germany and a number of other governments, with complete satisfaction. “But I have gotten nothing from Rwanda under Article 28, while the prosecutor gets whatever she wants. . . . So it’s very one-sided. Everyone knows that if Rwanda withdraws its cooperation, the tribunal would collapse.”

She also voiced blistering criticisms of some of the judges, though she did not name them. “They are often totally unqualified, because they are named by national governments. A judge needs to know what he or she is doing, and to control the courtroom.”

In Ellis’s view, the ICTR is delivering only “victors’ justice,” and that makes it incapable of contributing to reconciliation inside Rwanda. “Undoubtedly there were massacres committed by both sides,” she said. She accused both the U.S. government and her own of having supported and covered up for Rwanda’s now-ruling party, the Rwandan Popular Front (RPF). She argued that “What happened in Germany [under the Nazis] was different from what happened in Rwanda because in Germany there was a clear aggression against innocent populations but in Rwanda what happened really was a war.”

She said her experience in Arusha had made her “very pessimistic” about the prospects for the ICC. “Now we have the same incompetents who have been working here going to the ICC,” she said.

*  *  *

That a defense attorney in a court system where the prosecutor sometimes seems to play a larger-than-life role might have some qualms about the system’s fairness is perhaps not surprising. What surprised me more was to find a prosecutor from the OTP who raised doubts about the court’s overall value and effectiveness. I had seen Simone Monasebian strutting her trial lawyer’s stuff as the lead prosecutor in the Media trial. A tall, no-nonsense woman, Monasebian would impatiently brush a wisp of hair off her cheek as she presented some complex, lengthy proposition to defense witness Valérie Bemeriki and then swoop in with a challenge of “What say you, Mme. Bemeriki?”

When she came to meet me in an ill-furnished interview room in the OTP quarters, Monasebian looked tired. “I had always been a defense attorney, back home in the U.S.,” she said. “I certainly didn’t want to be a prosecutor there with the death penalty and the terrible conditions in the jails. I hoped the protections here, for the defendants, would be sufficient to allow me to be a prosecutor in this system. . . . The main problem here is the length of time people are detained before they get into court.”

She explained the OTP’s strategy of selectively prosecuting leaders from different sectors of society and justified this generally didactic approach as a way of fostering peace and reconciliation. “In our case, Nahimana and [codefendant Jean-Bosco] Barayagwiza both had official roles in the Rwandan media establishment of the time. . . . They were indicted by virtue of their civilian roles as inciters. We think that—unlike Julius Streicher, who was the main Nazi propagandist tried at Nuremberg—we generally chose our media indictees pretty well.” Later, she said, “establishing the historical record is very important. It’s important not just for the Rwandese, but for all humanity.”

She reported that in the Media case the OTP had called 47 witnesses, and the defense a similar number. (When I was in Arusha, the Media case had nearly been completed. It only lasted for another ten or eleven trial days. But such was the difficulty of scheduling them that it only concluded at the end of August.)

In Monasebian’s view, the inefficiencies of ICTR and ICTY “are a reason to have a permanent ICC, not a reason not to have one. Setting up an ad hoc tribunal like this one is definitely not the way to go.” Still, she did not seem wedded to the idea that Western-style criminal prosecutions are always the best route in such circumstances. When I asked if she would seek to work at the ICC once she finished at ICTR she said she doubted it. “I am rather thinking of going to Rwanda to see if I can work with their gacaca system, which seems very interesting to me.”

Rwandans Judging the Court

  Who, at the end of the day, should judge the work of ICTR and its sister court for former Yugoslavia, and what criteria should be used? The ICTR’s annual reports to the UN focus on procedural issues rather than any more substantive achievements. For example, in the 17-page report she submitted on July 2, 2002, ICTR’s then-president Navanethem Pillay wrote, “The proceedings may be perceived to be slow, but the judges have to be thorough and scrupulous. . . . The jurisprudence established by the Tribunal has received significant endorsement from academics, representatives of member States and organs of civil society, and constitutes a reliable body of precedents for the International Criminal Court.”17 That report does not refer to any other extrinsic achievements such as: the court’s success (or otherwise) in deterring the commission of atrocious crimes worldwide; the contribution it may have made to curbing the ability of the génocidaires to regroup; or its effect on fostering reconciliation inside Rwanda. The idea that then-president Pillay was claiming endorsements from unidentified “academics” before anyone else suggests something about her intended audience. The report notably did not seem to be written with the aim of assessing the effect of the court’s work on people living in Rwanda or other societies afflicted with atrocious violence.

A comparison with the intention and effects of the Nuremberg Trial is again instructive. The U.S. War Department—the main body that designed and supervised Nuremberg—was always intent (as noted above) that the court should have a didactic effect on the Germans, and the U.S. occupying forces undertook sustained campaigns of public “outreach” in pursuit of that goal. Many historians working in Germany today have judged that that educative effort had little immediate effect on popular attitudes. In 1945–46, they say, Germans were still living in a physically, economically, and politically shattered society. Most Germans were not in a mood to learn a salutary moral “lesson” from their foreign occupiers. Only much later, with the “German miracle” at the economic level and a recovery of a sense of security and self-confidence, were most Germans able or motivated to learn from their country’s Nazi past. But once they started to do so, the whole huge record of the Nuremberg trial and its successors provided a centrally important database on which they could draw. Thus it came about that, as historian Konrad Jarausch said in a 2002 interview, “public memory in Germany now is the memory of the victims, rather than the memory of the perpetrators. That is breathtaking. I know of no other international example where that has happened. . . . If you ask the young people now who they associate with, it is people in the camps. It is people who are survivors. It is not their grandparents or their great-grandparents who did these things.”18 Jarausch stressed, however, that this process of what he termed a “transformation of memories” did not happen overnight in Germany. It took 40 or 50 years.

We probably should not expect any speedy “transformation of memories” in other cases as atrocious and complex as that of the Holocaust, including in Rwanda. Nevertheless, Jarausch’s focus on the effects of the post-atrocity court’s work on the community from which the perpetrators (and condoners) sprang is helpful. In a parallel Rwandan context, we might be asking if ICTR has laid an effective basis for helping present or future generations of Rwandan Hutus repudiate the actions of the génocidaires and empathize with their victims.

We should, certainly, be prepared to wait many years before we can hope to answer this question. And the answer will inevitably be affected by a number of other, quite independent factors, including the ability of the great mass of Rwandan Hutus (and Tutsis) to rebuild a stable and thriving society. But the answer will also be affected by the degree to which Rwandan Hutus judge the ICTR: has its work been balanced, judicious, and fair? Here the issue of the “special” counter-RPF investigations can play a crucial role. Numerous reputable observers, including human rights monitors, have reported that RPF officers committed excesses that clearly seemed to be either crimes against humanity or war crimes. If ICTR fails to bring indictments against any of those suspects and test the allegations in open court, then its fairness will inevitably be open to question. The accusation of “victors’ justice” would be hard to lay to rest. (Yes, Nuremberg was also victor’s justice. But it was unabashedly so, since it had in fact been established by the victors in World War II. ICTR was set up by the UN and aspires to a more universal perspective, so it is more likely to be judged by that criterion.)

How do Rwanda’s Hutus and Tutsis view the work of ICTR? Most of the Rwandans I have interviewed until now—inside and outside their country—have probably been Tutsis. But while I was in Arusha I talked a while with D.T., who works on one of the defense teams and is probably a Hutu. (He talked a little about the difficulty of getting defense witnesses to come to Arusha, but said that a small number had done so.) D.T. noted that his client had been in detention for eight years, and the OTP still had 70 witnesses to call in his case, which was one of the larger group trials. “Here, they never give bail,” he noted. He said his client has not seen his wife and children for 10 years.

D.T. seemed careful not to criticize the process at ICTR too sharply; but he noted that “there’s a lot of pressure put on the judges here by the Rwandan government.”

Asked about the impact of the tribunal on intergroup relations inside Rwanda, he said, “It’s very small. People there don’t know much at all about the tribunal and its achievements.” In his view, the gacaca process held much more hope than ICTR of healing the country’s intergroup rifts. “In principle, I support gacaca,” he said. “But even that seems limited to looking at crimes committed by one side only. If they built it fairly, to judge both sides, that would really help reconciliation.”

Martin Ngoga is a Rwandan diplomat who maintains an office near the court’s headquarters in Arusha. Ngoga told me that his government still had some problems with the court (this was last April); but he said relations seemed to be getting better. He was hopeful that U.S. Office of War Crimes chief, Ambassador Prosper, could help iron out the remaining difficulties.

The issue that Ngoga identified as most troubling for his government was the way that, in his view, ICTR continued to mistreat prosecution witnesses. “They promise them security. But what is ‘security’? The woman who’s been a victim of rape needs much more than physical security. She especially needs HIV treatment, and counseling. Witnesses have been dying from lack of HIV treatment! . . . We have cases that will last another five years, and the witnesses are actually dying. . . . We also have cases of witnesses being threatened and killed after testifying.” (I asked for more details, but he provided none and seemed to backtrack a little.)

Ngoga accused the court of showing “great insensitivity” in its choice of defense witnesses and investigators for the defense attorneys. “There is still a problem of genocide suspects being on the payroll of the court. . . . In the past, two former employees were arrested by ICTR itself, two by the Tanzanian government, and three others were sacked and put under investigation. . . . The registrar will tell you that these people were not employees. But ICTR pays the budget for all defense teams. Rwandans find the process ridiculous.” Ngoga also—like several of the Rwandan officials and genocide survivors I interviewed inside Rwanda in 2002—derided ICTR as being mainly “a job creation program for foreigners.” He noted that recently the OTP had announced it would call 100 witnesses for one of its cases. “That doesn’t make it a better case than if you had five or 15 witnesses,” he said. “I certainly don’t rule out the motive of financial gain in this whole business of time delay—especially for the defense attorneys, since they get paid by the hour. . . . The judges need to learn, and to have rules to limit the number of witnesses.”

I asked Ngoga, too, how he assessed the court’s contribution to fostering reconciliation inside his country. “We had originally requested the tribunal, but we were the only ones on the Security Council who voted against it,” he recalled. “Why? Because we didn’t get what we thought was needed in the statute. We needed an international court, in order to get hold of the exiled perpetrators. But we needed it to be established inside Rwanda, so it could contribute to peace and reconciliation. The concerns we expressed then have now been vindicated.”

Elsewhere in Arusha I met a thoughtful and apparently well-connected Rwandan business executive, B.V., whose business takes him throughout East and Central Africa. He told me that his father—along with many other relatives—had been killed in his home village toward the end of the genocide. “I had been to the village just three months before the genocide, for a wedding,” B.V. told me. “We were very hospitably received by our Hutu neighbors there. They were good people. Also, when I went back to the village, after the genocide, the same thing. But in the meantime they had participated in the genocide—in the looting that was connected with it, at least. When I went there afterwards, I saw some of my family’s goods in their houses, and when I mentioned that, the Hutus gave them back to me!”

B.V., whose father had been a Protestant missionary, has given much thought to what it was that had caused his “good” Hutu neighbors to participate in the genocide. He believed the frenzy of violence was the result of two factors, manipulative politicians and mass psychology, with the former making use of the latter. In his view, the street-level perpetrators were also in some sense “victims.”

B.V. saw ICTR as “far removed from the real, concrete needs of the people in Rwanda. We have women survivors of the genocide who come here and they’re still bleeding,” he said. “But no one gives them anything.”

“Whose interest is it that ICTR serves?” he asked. “If they just took one year’s worth of the budget from there and put it into social programs inside Rwanda—even if they freed all the detainees from here!—it would still be much more helpful than what they’re doing here.” He told me he saw gacaca as filling the needs of Rwanda’s people much more than ICTR. But he said that even the gacaca process would not alone be enough. “We also need to have a big process of continuing education and reeducation, in order to build peace and reconciliation.”

There was, however, one moment in all the years of ICTR’s work that gave B.V. and his friends some real satisfaction. This came in 1998 when Omar Serushago, who had pleaded guilty to one count of genocide and three of crimes against humanity, made a confession in open court.19 B.V. had seen Serushago’s statement on television, and he remembered it clearly even five years after the event: “Serushago cried. He pleaded for forgiveness. He showed remorse,” he said. (In Arusha, the court was also moved by Serushago’s statement, and despite the severity of the crimes he had confessed to it gave him a sentence of “only” 15 years.)

“Rwandese liked to see the way Serushago acted,” B.V. told me. He contrasted Serushago’s behavior—and the popular reaction to it—with that of the most prominent suspect to plead guilty at ICTR, Jean Kambanda, who was Rwanda’s genocide-era prime minister. Kambanda pleaded guilty to counts of genocide and crimes against humanity. But in his pre-sentencing hearing—also in 1998—he notably failed to express any remorse.20 “Kambanda just admitted he had committed the crimes, and thought that was enough,” B.V. said. “And he didn’t even understand why, after he had done that, he got a life sentence.”

Remorse: this is a sentiment that is taken into little account in the proceedings of modern, Western-style courts whose proceedings are directed far more at examining “the facts” of the cases before them than at the complex web of emotions around those facts. But after any occurrence of large-scale atrocious violence like that which struck Rwanda in 1994, the credible expression of remorse by former perpetrators—and perhaps, beyond that, its enactment in the form of reparative actions—can play an essential educative role and help to build a strong basis for long-term reconciliation. (In South Africa, psychologist Pumla Gobodo-Madikizela has reported on her extensive conversations with survivors of apartheid-era violence. She quotes one Black South African woman whose husband was killed by apartheid’s security police as saying, “Victims are looking for signs . . . and when they see those signs, they are ready to forgive.” From her discussions with this woman and many other survivors of apartheid violence, Gobodo-Madikizela concludes that “the most crucial sign is an expression of remorse.”21)

So, after ICTR’s investment of more than half a billion dollars and the creation of hundreds of thousands of pages of court records, we were left in the view of one thoughtful Rwandan observer with this significant achievement: a single, credible expression of remorse from a significant, self-confessed génocidaire. One cannot help wondering if more such expressions of remorse could have been obtained for far less money using different means. And that is, indeed, one of the results the Rwandans themselves have been starting to achieve—at a per-capita cost that is exponentially smaller than those of the ICTR—through their continued pursuit of gacaca. <

Helena Cobban is global affairs columnist for the Christian Science Monitor and Al-Hayat (London) and a member of the Middle East advisory committee of Human Rights Watch.


1 For more information on the circumstances around the creation of the court see Helena Cobban, “The Legacies of Collective Violence: The Rwandan Genocide and the Limits of Law,” Boston Review, April/May 2002 . For more on U.S. decision-making during the genocide see Samantha Power, “A Problem from Hell” : America and the Age of Genocide (Perennial, 2003).

2 UN Security Council Resolution 955, 8 November 1994, UN document S/RES/955 .

3 “Interview with Carla Del Ponte: ‘If I had the choice I would have remained Prosecutor of the ICTR, ’” Hirondelle Press Agency, Arusha, 15 September 2003.

4 Rebecca West, “Greenhouse with Cyclamens I,” in A Train of Powder: Six Reports on the Problem of Guilt and Punishment in our Time (Chicago: Ivan R. Dee, 1955), 3. Fifteen days after Sir Geoffrey Lawrence closed that court’s last session on October 1, 1946, ten of the original 22 indictees had been hanged as per sentence passed, seven had been sent to their places of incarceration, and three had been released after being found not guilty. Hermann Göring cheated the hangman by killing himself the night before the executions.

5 All these figures except the last are from www., accessed September 29, 2003. The last figure is from details Carla Del Ponte had given about the OTP’s plans for future arrests and indictments.

6 Such wholesale lodging of unexamined documents into the court record was a serious infringement of the defendants’ due-process rights and is not allowed in the present generation of courts. Note, too, that a significant third type of crime in addition to war crimes and the then newly-minted category of “crimes against humanity” was also tried at Nuremberg but is not on the docket of the present courts: “crimes against the peace.” The Rome Statute for the ICC has a provision for trying “crimes of aggression,” which would presumably be similar to “crimes against the peace”—but the ICC cannot try these types of crime until after this category of crimes has been defined. This has not yet happened.

7 The court decided to try Kajelijeli individually rather than as part of the “government” case because there were fewer charges against him than against the others, so the judges thought his trial could be conducted more quickly than the group trial.

8 David Chappell, who runs the support services unit for prosecution witnesses, told me that this is not the case at ICTY in The Hague. ICTY, he said, runs a single witness support unit for witnesses of all three of the relevant ethnic groups. But in Rwanda the polarities, sensitivities, and fears are, it seems, that much more intense.

9 A number of these witnesses are women who were infected with HIV/AIDS during genocide-related rapes. ICTR does not offer them anti-retroviral treatment, though it reportedly does offer this to the suspects in its Detention Unit.

10 UN Office of Internal Oversight Services, “Report of the Office of Internal Oversight Services on the Investigation into Possible Fee-splitting Arrangements . . . at ICTR and ICTY,” 1 February 2001 (UN document A/55/759): 2, 3. Of course, one person’s “frivolous motion” may be another’s “essential due-process protection.”

11 See OIOS report of 26 February 2002 (UN document A/56/836). In June 2001 the ICTR Registrar issued a public statement describing actions he had taken “in response to” OIOS’s recommendations (see Neither the recommendations nor the registrar’s actions involved any sanctions for past fraud or mismanagement. They merely dealt with the introduction of new oversight procedures.

12 In a decision of September 2, 1998, judges in ICTR Chamber 1 found Jean-Paul Akayesu, former bourgmestre of taba commune, guilty on one count of genocide and one of incitement to commit genocide. This bench also found him guilty of rape as a “crime against humanity.” See Akayesu received a sentence of life imprisonment, which would be served in a UN-approved prison in Mali.

13 For more information about the gacaca courts, see Helena Cobban, “The Legacies of Collective Violence.”

14 “Start of Trial Phase in Gacaca Courts Delayed Again,” Hirondelle News Agency, 6 October 2003. Accessible at:
8fb28f73336b844e43256db7003299fb?Open Document.

15 It could also be noted that however laudable the essentially didactic goal expressed by Møse may be, it was nowhere explicitly mentioned among the goals assigned to the court in Resolution 955.

16 Milosevic has been determined to represent himself in the court. The role given the amici curiae has been “to assist the Trial Chamber by . . . making any submissions or objections to evidence properly open to the accused during the trial proceedings and cross-examining witnesses as appropriate; drawing to the attention of the Trial Chamber any exculpatory or mitigating evidence,” etc. Information from

17 “Seventh Annual Report of the International Criminal Tribunal for . . . Rwanda . . . for the Period from 1 July 2001 to 30 June 2002” (UN document A/57/163–S/2002/733): 6. The report for 2003 is not easily accessible.

18 Interview with Konrad Jarausch by Sarah McKim for the Project on Violence and its Legacies (VAIL project), Potsdam, 28 May 2002. For information on the VAIL project, see

19 Serushago was one of only two or three of the court’s indictees who belong to Rwanda’s minority Muslim population. The rest were (at least nominally) Christians—and four, including an Anglican bishop, were men of the cloth.

20 This fact was also duly noted by the court. See paragraph 51 of the official record of his pre-sentencing hearing, at

21 Pumla Gobodo-Madikizela, A Human Being Died That Night: A South African Story of Forgiveness (Houghton Mifflin, 2003), 97–98. Gobodo-Madikizela was a member of the Human Rights Committee of South Africa’s Truth and Reconciliation Commission.

Originally published in the December 2003/January 2004 issue of Boston Review

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