Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity…
Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes…
Resolved to guarantee lasting respect for and the enforcement of international justice.
Like much of the discourse with respect to international criminal justice, the idealistic tone of the Preamble to the Rome Statute is positively infectious. Indeed it would be very easy to be swept along with the current tide of indictments, arrest warrants and life sentences recently issued in the international criminal arena and to conclude that perhaps, slowly, we are making progress.
Certainly, ending impunity for the perpetrators of the world’s most heinous crimes is a very worthy and important aim. But unfortunately justice is never free. And as the world is slowly learning, international criminal justice has become monstrously expensive. In light of the recent explosion of activity in the international criminal arena, we should be seriously asking ourselves whether such proceedings represent the best use of our increasingly limited resources. For the accuracy of ‘no peace without justice’ is itself debatable. What is far more certain is that justice alone will not guarantee peace. And the mere existence of international criminal justice does not absolve the international community of its responsibility to confront the fundamental causes of human rights abuses: poverty, exploitation, and racial and social inequality.
Condemning the Devil
The recent flurry of activity in international criminal circles began on 18 December 2008, with the International Criminal Tribunal for Rwanda ("ICTR") finally rendering its judgment in the Military I proceedings against four senior military officials in the Rwandan army: Colonel Bagosora, Director of the Ministry of Defence, General Kabiligi, head of the operations bureau of the army general staff, Major Ntabakuze, commander of the elite Para Commando Battalion, and Colonel Nsengiyumva, commander of the Gisenyi operational sector. Colonel Bagosora was the alleged "mastermind" of the 1994 Rwandan genocide and the ‘devil’ in UN force commander Romeo Dallaire’s painful memoire, Shake Hands with the Devil. This was the ICTR’s star trial.
Between 12 and 15 January 2009, the International Criminal Court ("ICC") held confirmation hearings to determine whether sufficient evidence exists to charge Jean-Pierre Bemba Gombo, a one-time Vice President of the Democratic Republic of Congo ("DRC"), with war crimes and crimes against humanity including rape, murder and torture committed against civilians in the Central African Republic ("CAR") between 2001 and 2003. If the hearings are successful, the proceedings will be the first in connection with human rights abuses committed in the tiny African nation.
On 26 January 2009, the ICC commenced trial proceedings against Congolese war lord Thomas Lubanga Dyilo. Lubanga is charged with war crimes, including the recruitment of child soldiers into two rebel groups allegedly controlled by him in the DRC. Lubanga was the first accused to be arrested pursuant to an ICC warrant and is the first accused to ever stand for trial before the court. It is a landmark for the ICC.
One cannot argue with the virtue of international criminal justice as a concept. Successful prosecution of the authors of some of history’s darkest chapters can be vital to the victims’ healing process. It also goes some way to ending the culture of impunity enjoyed by the perpetrators. But to what extent does it contribute to genuine peace? How does it help prevent repetition of these horrendous crimes in the future? Long after the life sentence has been handed down, what role does international criminal justice really play in ensuring that such atrocities never recur? And at what cost?
Value for Money?
Putting aside the high-minded rhetoric, the real value of international courts such as the ICTR and the ICC must lie in a sober assessment of their cost versus their achievements. Unfortunately, in terms of financial cost, the picture is pretty grim. Commencing with an annual budget of approximately $25 million (USD) at its inception in 1996, the cost of the ICTR has been steadily increasing at an average rate of about 15% per year. The annual budget for the year 2009 is $133 million. What has the ICTR achieved? It has sentenced 29 defendants, acquitted five, withdrawn charges against five others, has 30 cases ongoing and eight defendants awaiting trial. The ICC, which after three years of operation has just commenced its first trial, has seen its annual costs increase at a rate of approximately 10% per year, from €80.5 million in 2007 to €101 million in 2009. It has one person on trial (Lubanga), three accused awaiting trial, and seven suspects still at large.
But my aim is not merely to draw attention to the high cost per trial of these institutions. That point has been made well and many times before. Rather, I would like to focus on another less obvious aspect of this system. Where do the results of all this expenditure, all these man-hours, all this effort end up? Who benefits from all this activity? Where is all the money going? The answer is: into the pockets of a few mostly Western lawyers. To be more explicit, where is the money not going? Not into schools, universities, hospitals, health, education or economic development programmes in the very countries ravaged by war and civil unrest. Not into the type of programmes which could have eased the grinding poverty and social inequality which caused the Rwandan genocide, and are still needed to prevent it recurring.
Generally speaking, it is a well-known fact that the Rwandan genocide involved the mass slaughter of one race of Rwandans (the Tutsis) by another (the Hutus). It is a lesser known fact that the real reasons for the tragedy have more to do with power, wealth and social inequality than ethnicity. The distinction between the Hutu and Tutsi was in fact exacerbated and exploited to great advantage by the Belgians in their period of colonial rule, beginning after the First World War. Prior to European interference Hutu and Tutsi coexisted in relative harmony.
On arrival in Rwanda, the Belgians discovered an elaborate legal and monarchical system pursuant to which central regions were governed by a system of multiple hierarchies of competing officials under the ultimate authority of a single ruler. Members of the small elite ruling class were responsible for administration of men, cattle and land, and were known as ‘Tutsi’, which apparently means ‘rich in cattle’. The remainder of the population were known as ‘Hutu’, meaning a subordinate or follower of the ruler.
Seeing an opportunity to decrease the costs of their administration, the Belgians established their own hierarchical structure and decreed that only Tutsis should be its officials. They began a system of classification and registration of ethnic groups so that all Rwandans were recorded as either Hutu or Tutsi at birth. Hutus were systematically removed from positions of power and excluded from higher education. This practice enabled the Belgians to reduce their physical presence in Rwanda whilst continuing to effectively rule through the Tutsi. It was also consistent with shameful European notions of racial superiority pursuant to which the Tutsi, who tended to be taller, leaner and fairer-skinned, were superior to the generally darker, stockier Hutu. The myth of Tutsi superiority was perpetuated in schools, history books and general public life. By the time Rwanda gained independence in 1962, an undeniable system of favour and patronage had been created in which Tutsis were generally wealthier, better educated and more likely to hold positions of power. The Hutu, on the other hand, had endured years of discrimination and oppression, setting the stage for violent conflict some 30 years later.
Shortly prior to independence in 1962, approximately 80 percent of Rwandans voted to end the Belgian-supported Tutsi monarchy, proclaimed a Hutu republic and quickly set about reversing the years of domination and humiliation. Prominent Tutsis were banished from government positions and fled the country; ordinary Tutsis became the objects of social and economic discrimination. Exiled Tutsis formed the Rwandan Patriotic Front (RPF) and began making incursions into Rwanda from Uganda in 1990 with the aim of re-taking power. The Hutu-led government was able to exploit the very real fear of many Hutu of a return to Tutsi domination and began a process of civilian militarisation and preparations for war. On 6 April 1994, Rwandan President Habyarimana’s plane was shot down and the President killed. This event triggered the mass mobilisation of armed paramilitary and youth groups such as the infamous Interahamwe. Over the next 100 days, they slaughtered Tutsis and moderate Hutus in their thousands.
Unfortunately, the racial dynamic which led to this tragedy is still very much alive in Rwanda today. I witnessed it first hand on a beach on the shores of the beautiful Lake Kivu whilst on a fact-finding mission during my time as an intern with the ICTR. On one side of the beach, a group of short muscular young Hutus washed rags in the water and caught fish with home-made rods. On the other side, a smaller group of tall young Tutsis removed jumpers emblazoned with the logos of American and English universities, placed them inside laptop bags and went for a swim. Fifteen years of operation of the ICTR, over $1 billion (USD) in costs and an untold number of volunteer hours have not changed this entrenched racial and economic inequality.
Despite recent advances and the drive by the government of Paul Kagame to turn Rwanda into the "Switzerland" of East Africa, a technological and economic hub, Rwanda remains a desperately poor country. It is ranked 165th out of 179 countries on the UNDP’s 2008 Human Development Index, down from 161st in 2007. Total foreign aid of about $500 million per year makes up 26% of its annual GDP. The annual cost of the ICTR, by way of comparison, is approximately $130 million – more than 20% of foreign aid donated to Rwanda by the international community and more than the Rwandan government spends on the health of its own citizens in an entire year!
As I travelled around Rwanda in one of the UN’s ubiquitous white four-wheel drives searching for witnesses whilst watching tiny Rwandan children chase behind our vehicle begging for our empty water bottles, I could not help but think that there must be a better way…
An ounce of prevention…
The sad reality is that for all its very laudable attempts to bring justice to places like Rwanda, international criminal justice alone cannot create peace. Delivering genuine and lasting peace to the war-torn countries of Africa involves making a concerted effort to remove the conditions which are conducive to war, including the scourges of poverty, exploitation, and racial and social inequality.
In Rwanda, efforts should be made to heal the racial divisions which led to the genocide. I believe that the solution lies not (or not only) in the courtroom, but in education, poverty reduction and economic development. Ordinary Rwandans who participated in the genocide did so predominantly out of fear and lack of understanding. A powerful and manipulative few were able to exploit the vulnerable and uneducated many. Raising education leaves people less susceptible to manipulation. Reducing poverty and pressure on scarce resources removes the incentive to fight.
Ending the brutal 12-year war in the DRC will require not only resolving tensions between ethnic groups (including between Hutus and Tutsis) but also confronting the various international actors, multinational corporations and state-backed rebel groups which profit from the war economy. Citizens of this war-ravaged nation enjoy none of the benefits of its vast natural resources, most of which are extracted and sold illegally by foreign backed militias with the revenue used to fund the violence. Until the issues surrounding access to land and exploitation of DRC’s natural wealth are acknowledged and attempts made to deal with them, the fighting will not stop.
In this context, the ICC charging Lubanga for recruiting child soldiers into one of the various militias is a bit like chopping off the leaf of a noxious weed with a chainsaw. It makes a lot of noise and temporarily eliminates part of the problem but does nothing to disrupt the roots. No sooner was he arrested and transferred to The Hague than another opportunistic (and probably internationally sponsored) thug took his place. Aid agencies observed a further increase in the number of child soldiers recruited in eastern Congo following the recent renewal of fighting in November last year.
Peace and justice
Like most people of conscience, I held high hopes for international criminal law and initiatives like the ICC. I still do. But I left the ICTR with the sinking feeling that the bench, the international community and the world was not interested in unearthing the real causes of the unimaginable apocalypse that was the Rwandan genocide. Rather the function of the tribunal was merely exculpatory; its objective was simply to reach a guilty verdict, lock the defendants away, and somehow exonerate the world from the overwhelming guilt of having done nothing for 100 days while Rwanda burned. But if we are serious about preventing the repetition of such atrocities, if we are serious about improving respect for human rights, if we are serious about creating peace, then we need to confront the difficult and unpleasant conditions by which it is threatened. Institutions like the ICTR and ICC are but one tool in the fight against human suffering, and they are looking like an increasingly blunt and expensive one.
Photo credits: ICC: Flickr//Michplay