70 Years Later: the Tenth International Humanitarian Law Dialogs in Nuremberg

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Co-authored by Leila Sadat

 

 

“Let us leave here renewed in our devotion to justice – not just for the people of our own countries, but for the people of all countries.  Let us leave here refreshed in our determination to defend human rights, to protect human liberty, and to uphold human dignity wherever and whenever it is threatened.” Commemoration of the 70th Anniversary of the Nuremberg Trials, U.S. Attorney General Loretta Lynch (Sept. 29, 2016)

On September 29-30, 2016, the Tenth International Humanitarian Law Dialogs convened in Nuremberg, Germany. Normally held at the Chautauqua Institution, this year’s special location was chosen to commemorate the 70th anniversary of the close of the Nuremberg trials, where the Allied Powers tried Nazi war criminals for atrocities committed during World War II. Intlawgrrls, the Whitney R. Harris World Law Institute at Washington University in St. Louis and New York University’s Center for Global Affairs are among the sponsors and long-time supporters of the IHL Dialogs, which gather prosecutors, jurists, and nongovernmental partners to discuss issues involving international justice that extend beyond the walls of any one court or tribunal.

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International Prosecutors at the IHL Dialogs in Nuremberg, with U.S. Attorney General Loretta Lynch

This year’s IHL Dialogs opened on Thursday, September 28 with an inspiring program in Courtroom 600, the small, iconic courtroom where 22 defendants were tried at the International Military Tribunal. The Keynote Speakers included ICC Chief Prosecutor Fatou Bensouda, who spoke powerfully about the shared responsibility that people and States around the world have to address atrocity crimes and the arc of justice’s continual bend towards accountability, and U.S. Attorney General Loretta Lynch, who gave a beautiful, reverent speech about the potential power of fairly-applied justice and the rule of law, stating that by seeking justice rather than vengeance, Nuremberg participants showed that “war does not have to be the final arbiter of human affairs.”

“Certainly the onslaught of evidence of man’s inhumanity to man can leave one dispirited and discouraged.  But we cannot – and we should not – give in to despair, because the legacy of Nuremberg is that when we are called to confront the evil that walks this earth, we turn to the law.  When we need to mete out justice to those who have reaped the whirlwind and revel in the chaos resulting therefrom, we turn to the law.  And through the law we give voice to those shattered souls who seek redress, and we provide a reckoning to those who trade in fear and trembling.  Let us never forget that within these walls, evil was held to account and humanity prevailed.” – Commemoration of the 70th Anniversary of the Nuremberg Trials, U.S. Attorney General Loretta Lynch (Sept. 29, 2016)

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Is There a Linkage Between Gender-Based Atrocity Crimes and Sexual Assault?

Over the last two decades, there has been exponential growth in the capacity at the international level to prosecute atrocity crimes, particularly through international and hybrid tribunals, including, prosecutions of rape and other forms of sexual and gender-based violence.  In light of these strides which advance the rule of law, particularly, international criminal law, and bring at least a measure of accountability for some of the worst atrocities of the last two decades, is it permissible for a public figure who aspires to leadership to brag about (and allegedly commit) sexual assault?   Are atrocity crimes and sexual assault delinked concepts, or part and parcel of the same phenomenon?

Unlike the prosecutions after World War II before the International Military Tribunal at Nuremberg and before the International Military Tribunal for the Far East in Tokyo, where sexual violence crimes were virtually ignored, today, international and hybrid criminal tribunals prosecute these crimes.  Through groundbreaking jurisprudence of the International Criminal Tribunal for Rwanda, the judges recognized that rape can be a form of genocide.  And, through groundbreaking cases at the International Criminal Tribunal for the former Yugoslavia, the judges recognized that rape can also be a war crime and a crime against humanity.  That tribunal also brought important focus on the use of rape, for example, through prosecutions of perpetrators at a particularly notorious “rape camp,” in Foca.  Other (often horrific) forms of sexual violence that do not constitute “rape” per se, were prosecuted as “other inhumane acts,” which is a crime against humanity.  This work of the Yugoslav and Rwanda Tribunals is today being carried forward by the International Criminal Court, where, for instance, the recent conviction of Jean-Pierre Bemba, included command responsibility convictions for rape, as both a war crime and crime against humanity, committed in the Central African Republic.

Why has there been such pervasive use of gender-based violence, and why does it continue unabated today (in places, for instances, such as Syria, against the Yazidis)?  (It was also part of the genocide in Darfur, and the 1988 genocide by Iraqi forces against the Kurds.)  A few observations can be offered.   

First, through a long period of history, rape was seen as similar to plunder, something to which the victors were entitled, as spoils of war.  While the laws of war now clearly forbid such behavior, it is not clear whether that linkage has been entirely severed. 

Second, atrocity crimes, including crimes of sexual violence, are made easier to commit through dehumanization of “the other.”  Thus, in both Rwanda and Bosnia, the “other” ethnic group was portrayed as both the enemy (collectively) and as something less than human.  Thus, for example, in Rwanda, the Hutu, in the planning of and during the genocide, termed the Tutsi as Inyenzi, or “cockroaches.”  Had the enemy been seen as individual, it would have been harder to commit the crimes.  Through dehumanization and the stoking of fear, nationalistic leaders in the former Yugoslavia, and leaders in Rwanda (aided by an incendiary media), convinced people to commit horrific crimes, including gender-based violence crimes. 

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Rethinking the Death Penalty and Complementarity

NEITHER AMNESTY NOR EXECUTION WOULD BE A GOOD RESULT IN THE ICC’S LIBYA CASES

The International Criminal Court’s two Libya cases, against Saif Al-Islam Gaddafi and Abdullah Al-Senussi, appear potentially poised to end in Libya, in an amnesty and an execution:  neither would be an appropriate result.

After the UN Security Council referred the situation in Libya to the ICC, the Court rendered divergent rulings on complementarity— that Saif Gaddafi should be tried at the ICC, while Senussi could stand trial in Libya.  Saif was never transferred, as he reportedly was held by a militia in Zintan and not governmental authorities.  Both men were then sentenced to death in a flawed domestic trial in Libya.  Now, new, unconfirmed news reports suggest that Saif has been amnestied.  Senussi appears still to be under a death sentence. 

From death sentence to amnesty for Saif

In her recent May 26 briefing to the U.N. Security Council, the chief prosecutor of the ICC Fatou Bensouda had announced new efforts to get Saif transferred to The Hague – asking the Pre-Trial Chamber to direct the ICC Registry to send the request for Saif’s arrest and surrender directly to the head of the militia.  This approach may prove moot if reports are true that he was amnestied (and one report, now contradicted, was that he had been released).  These events then present the concern of him potentially escaping accountability, depending on whether or not his ICC case would proceed if there is a (valid) domestic amnesty of him.  This presumably will now be litigated at the ICC – that is, what becomes of the ICC case after a flawed domestic trial in Libya that was never supposed to happen because he was supposed to have been transferred, and in light of a possible domestic amnesty that may or may not be valid.       

The need to reopen admissibility regarding Senussi

Disappointingly, in her May briefing, the Prosecutor did not announce any intention to revisit complementarity (admissibility) in the Senussi case.  This is unfortunate.  When the ICC ruled that Libya could try him, there were before the Court only initial indications that his trial in Libya might face fairness challenges — lack of counsel in early phases of the proceedings.  The Court did not reach other issues, finding them speculative.

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Reflections on Rwanda – 20 Years After the Genocide (Part II)

As noted in Part I of this posting, beautiful appearances can also be deceiving.  In reflection, the author probably spoke mainly to those who had formerly been known as Tutsi (since these terms are no longer supposed to be used in Rwanda).  Although it is impossible to gain much accuracy over a week, most Tutsi are likely supportive of their staunchly pro-Tutsi government, presided over by President Paul Kagame.  (There would be some notable exceptions, however, of those who have fallen out of favor with the government, and have fled, or worse; it is clear that the government has little tolerance of opposition.)  Because one is not supposed to ask about ethnicity (as citizens “are all Rwandans now”), it would be fascinating (but somewhat difficult) to ask about the views of Hutus in Rwanda; one might anticipate that a fair number of them would not necessarily share such a rosy assessment.

As an outsider to Rwanda, the author found herself not asking any of the hard questions – certainly not to government officials – out of concerns that it is difficult to know how close one can come to sensitive issues without crossing the line.  At the same time, the author felt somewhat guilty at not having asked hard questions, as that is a form of self-censorship.  Thus, having travelled all the way to Rwanda and back, the author, came home with some of the same nagging questions she had upon starting out.

Some of the most indelible impressions came from visits to key genocide memorials.  These include Murambi (a challenging memorial to visit, the site of a former school, with classrooms full of bodies preserved in lime); the churches of Nyamata and Ntarama (sites of horrific mass slaughter for Tutsis who mistakenly thought they would receive sanctuary), as well as the main genocide memorial in Kigali.  At each of these, tens of thousands are buried.  (There are an estimated 50,000 bodies at Murambi – a number so large it is scarcely possible to imagine).  These memorials help ensure that no one will forget the genocide.  Nor should they.

Yet, the author noticed that despite the fact that, during the genocide, crimes were perpetrated against both the Tutsi as well as moderate Hutu, in Rwanda, the official description at the memorials is “the genocide against the Tutsi.”  One cannot help but wonder whether this simplified narrative results in stereotyping of Tutsi as heroic survivors and Hutu as perpetrators.  One has to ask whether, 20 years later, the country should not use a more accurate and inclusive narrative, one that also acknowledges some of the suffering that occurred on the other side – it is not nearly of the same magnitude, but nonetheless not insignificant.

Admittedly, recognizing the suffering of “the other” is perhaps easier said than done.  Recently, the author read of a monument in the U.K. erected to R.A.F. pilots lost in WWII and their victims.  While many countries erect monuments to the losses on their side (for example, virtually all of the memorials in the former Yugoslavia do this), it takes a mature sense of memorialization, and history, to recognize suffering on the other side.  (One also does not see this in the former Yugoslavia, with the notable exception of the Potocari Memorial outside Srebrenica, which the international community mandated, despite it being in the solidly Serb territory of Republica Srpska).  Of course, we are more than a half century after WWII, and perhaps mature forms of memorialization, as well as historical narratives, take time to recognize that, in any conflict, one group is not wholly good, and the other is not wholly evil.

Rwanda has also switched its narrative that citizens should not be known by ethnic identity as Hutu or Tutsi, but “as Rwandans.”  This is a fascinating attempt at social engineering.  But will it work?  That is a huge question.  Perhaps the younger generations can be schooled to think that way, but surely the adult population knows which group they belong or belonged to, and, to some extent, undoubtedly still associate with that identity.  It is curious that the government itself seems not to follow its own prescription when, at national genocide memorials, it consistently memorializes “the genocide against the Tutsi.”

While the Hutu are also beneficiaries of Rwanda’s rebuilding, it appears that much of the governing class are Tutsi.  Will there be enough successful economic growth for all citizens that the country simply successfully moves on from the genocide?  Or will there remain lingering resentment, with the two groups still cognizant of differences, and, the Hutu, potentially feeling marginalized by the pro-Tutsi leadership, and potentially even demonized?  The chilling problem is that the 1994 genocide was not the first genocide in Rwanda; there have been repeated waves of genocide.  Clearly, the stakes are high if the Kagame regime calculates this wrongly.

Another potential source of resentment could stem from the one-sided justice after the genocide – essentially, victor’s justice.  Génocidaires were tried through three different justice mechanisms:  the ICTR, set up by the international community in Arusha, Tanzania; domestic courts in Rwanda; and, after it proved impossible to handle the cases of all the imprisoned génocidaires through the domestic courts, use of indigenous “Gacaca” trials, that very roughly adjudicated nearly 2 million cases.

Justice for the genocide was imperative.  Genocide is a crime that must be prosecuted, so choosing to have a truth commission (as was used in South Africa) would not have sufficed.  And, 20 years later, the cases (except for a handful of transfer cases and génocidaires recently sent back from Europe), are largely concluded.  However, crimes were committed against Hutus as well, and these were basically excluded from these three levels of trial mechanisms.  Will such one-sided justice leave a legacy of resentment?  It has that potential.

So, while Rwanda appears stable, and prosperous, and is a beautiful country, only time will tell whether it in fact is in fact a success story.  Will the 80% Hutu population see itself as sufficiently benefiting from the country’s remarkable economic recovery?  Clearly, Rwanda’s approach to rebuilding has not been cost free, while donor countries (who perceive mainly a success story in Rwanda), remain largely uncritical of the government.  Ultimately, one has to wonder, 20 years after the genocide, whether in the face of such remarkable success, the government still needs to rule with such an intolerant “top down” approach.  Can it not afford, at this point, to allow a more honest dialogue about the past to develop?  Can suppression of dissent and ethnic identity lead to a healthy outcome?  Only time will tell, but it is possible that ruling with a less stringent hand might permit the development of a more healthy and, ultimately, more stable society.

Reflections on Rwanda – 20 Years After the Genocide (Part I)

This summer, I had the chance to visit Rwanda.  Twenty years after the genocide, my sojourn allowed me to witness and enjoy the remarkable progress made in the country, but also to reflect on the cost of that progress.

It is almost unimaginable what devastation Rwanda has overcome, when 20 years ago approximately 10% of its populations slaughtered another estimated 10% of its population in approximately 100 days.  Thereafter, Rwanda had to rebuild itself, as well as establish justice mechanisms to prosecute the perpetrators.  Due in large part to international guilt at having done virtually nothing to attempt to halt the genocide, Rwanda at least was assisted in rebuilding by the international donor community.

Kigali, today, is a remarkably clean metropolis, where one would be hard-pressed to find litter, due in part to an admirable ban on using plastic bags, and designating the last Thursday of every month as a day where every citizen must tidy.  The streets are swept clean, so that every aberrant leaf is removed.  Those lucky enough to afford them (likely only a fraction of the population), can also enjoy beautiful hotels (such as the Serena and Mille Collines), with swimming pools and lovely restaurants.

Rwanda’s countryside is also quite extraordinary, with rolling hills covering virtually the whole country – hence, Rwanda is called the land of a thousand hills, “mille collines.”  Some are covered with picturesque terracing, to allow cultivation and minimize soil erosion.  Rwanda also boasts three wildlife preserves, two of which are home to a variety of monkeys (including mountain gorillas), and one of which hosts plains animals.  The author’s visit to see golden monkeys in Ruhingeri was truly enjoyable – as they jumped from tree to tree, groomed themselves, ate, and played, all in a thick bamboo forest.

Meetings with NGOs, government officials, academics and others generally revealed a positive vision of Rwanda, with some speaking proudly of how far their country has come since the genocide, the challenges for the future, and tasks ahead in apprehending and trying remaining génocidaires.  (There are a few “transfer” cases that have been sent back to Rwanda from the International Criminal Tribunal for Rwanda (ICTR), as well as some cases of individuals apprehended in various European countries, now also returned for trial).

Beautiful appearances can also be deceiving.  To find out why, stay tuned for PART II of this post.