Defendant perpetrators and conflict-related sexual violence

As the International criminal tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR, respectively) are concluding their mandates, the archives they leave behind comprise an unprecedented historical record about the war years, about the collective and individual harms suffered, and about the development of international criminal law. The tribunals’ legacies will be interpreted, negotiated, and renegotiated as more researchers dive into these materials. Undoubtedly, the archives will keep scholars from a wide array of disciplines busy for years and decades to come.

So what are we to make of these archives? What are they documenting? What are they leaving aside? What kind of historical record do they produce, and what is it that they establish? For whom? On what premises? What are the values of trial truths and the legal narratives they story?

In a recent article in the British Journal of Criminology I engage with these questions by focusing on a specific subset of cases at the trial end of these archives: cases brought to trial and ending in convictions of defendants for their direct participation in sexual violence.

Rather than analysing the production of jurisprudence before these courts, or the treatment of victims and victim witnesses, I ask how these direct perpetrators and the causes of their offenses are constructed within and by these institutions and its primary actors.

Emphasizing arguments that are interpretive or explanatory in terms of the defendants and their participation in sexual violence over those that are descriptive in terms of the offenses, there are two primary narratives in the court actors’ arguments. These explain the defendant either as someone whose personal characteristics and personality deviate from the norm, or they re-present the defendant as an ordinary man/woman, pointing to factors beyond the control of the defendant as explanations for his or her crimes.

Deviant defenders

So-called deviance narratives are either formulated by the prosecution, for which they constitute aggravating arguments. Here, the defendants are portrayed as sadistic opportunists who thrived on the opportunity to rape or sexually torture their victims. These narratives are often repeated in judgments, as in the case against Delić at the ICTY:

The manner in which these crimes were committed are indicative of a sadistic individual who, at times, displayed a total disregard for the sanctity of human life and dignity.

When defense counsels invoke deviance narratives, they do so for mitigating purposes. Thee narratives often involve partial acknowledgement of the crime, while also full or partial denials of responsibility. Typically they are based on the statements of psychiatric experts who account for the defendants’ dependent personalities and their extreme conformity, which in turn inevitably lead to criminal behavior if authority figures ask for it.

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Incendiary Media Use and The Failure of the Rwandan Case

Use of the media is a powerful tool in crimes against humanity for the following reasons: it allows the wielder to shape contemporary discourse, it helps desensitise and marginalise those who are not being targeted, and it can successfully contribute to the generation, entrenchment and wholesale acceptance of dangerous demographic stereotypes, which often serve as the premise for ensuing violence.

The Rwandan Genocide is a prime example of how influential persons in control of sources of information, such as radio broadcasts and newsletters, can distort and filter the material that the public can access. The International Criminal Tribunal for Rwanda (ICTR), which was tasked with prosecuting various violations of international humanitarian law during the genocide, handed down a landmark judgment on this use of the media. This judgment, along with two significant cases of incendiary media use during the Third Reich in Germany, constitute a large part of the law on attribution of responsibility to the perpetrators.

I will analyse each case in order to arrive at an appropriate standard for responsibility, and to demonstrate why I think the Appeals Chamber of the ICTR did not do a good job.

I. The Case of Julius Streicher 

The Nazi regime in Germany is well-known for its careful, manipulative use of the media. Julius Streicher was the founder and editor of an anti-Semitic newsletter called Der Stürmer, translatable to ‘The Attacker’. He made various far-fetched and malicious claims about Jews in the cartoons and articles he published in this newsletter scapegoating them for Germany’s economic problems and criminal happenings. In an article published in a 1939 edition of Der Stürmer, the author decried the idea of a ‘decent Jew’, stating his intention to make the public of the Third Reich understand why it was a “shameless lie”.

Streicher was tried by a military chamber at Nuremberg. The Tribunal found no direct causality between his acts and specific acts of killing Jews.  He had issued no direct orders to anybody to exterminate the Jews and had not actually participated in the Holocaust. However, his circulation of vitriolic messages was noted as a “poison” which infiltrated the citizenry’s minds and made them subscribe to the general atmosphere of anti-Semitism. It quoted the following statement from Der Sturmer to illustrate Streicher’s ill-intentions: “A punitive expedition must come against the Jews in Russia. A punitive expedition which will provide the same fate for them that every murderer and criminal must expect. Death sentence and execution. The Jews in Russia must be killed. They must be exterminated root and branch.”  The Tribunal considered that his efforts, in line with this sentiment, constituted incitement to murder and extermination of Jews.

In other words, Streicher had successfully contributed to desensitizing the non-Jewish population and was held responsible for crimes against humanity.

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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.

Write On! Call for Papers: International Symposium on the Legacy of the ICTR

unictr

The International Criminal Tribunal for Rwanda is organizing an International Symposium on the Legacy of the ICTR to be held in Arusha, Tanzania, on 6-7 November 2014, and has issued a call for papers:

With the ICTR’s closure scheduled for 2015, the Symposium aims to provide an opportunity for experts in the field of international justice to reflect on the ICTR’s contributions to the development of international humanitarian law, administration of justice, and promotion of the rule of law, particularly in the Great Lakes Region. We invite experts in the field to submit proposals for papers to be presented during the Symposium. Papers should focus on the topics indicated in the draft program, which can be found here (pdf).

Those interested in presenting a paper at the Symposium should submit an application including a 300-word abstract summarizing the proposed paper via email to the ICTR Legacy Committee at ictrlegacy@un.org. Applications must include:

1) A 3o0-word abstract of the proposed paper;

2) The author’s name, title, and affiliation (if any);

3) The author’s Curriculum Vitae/Résumé; and

4) The author’s contact details including phone number and email address.

All applications must be received no later than 15 August 2014.

Successful applicants will receive an invitation to submit a paper by 5 September 2014 and a first draft of papers will be expected to be submitted by 17 October 2o14. Submission of an application will be considered as acknowledgement that the author is available to be in Arusha from 5-8 November 2014 to participate in the Symposium. The ICTR will endeavor to cover travel and accommodation for successful applicants.

Acquitted But Still Not Free

ICTRIn February 2014, Lead Counsel Chief Charles A. Taku and I (with our defence team) won the acquittal of our client, Major F.X. Nzuwonemeye, former Commander of the Reconnaissance Battalion, Rwandan Army in April 1994, in the Ndindiliyimana et al. (“Military II”) case at the International Criminal Tribunal for Rwanda (ICTR).  The Appeals Chamber reversed the Trial Chamber’s convictions for crimes against humanity and violations of common article 3, for the murders of the Belgian peacekeepers and former Prime Minister Agathe Uwilingiyimana.

Major Nzuwonemeye joined the other ICTR acquitted persons and those who have completed their sentences (about ten in total), who live under U.N. auspices in a “safe house” in Arusha, Tanzania.  One person, Dr. Andre Ntagerura, has lived in a “safe house” since his acquittal at trial in 2004.   The reason is that no country where these men can live in safety and without fear will accept them.   They are separated from their families.   Many of their families live in Europe, in countries where these men were initially arrested, prior to transfer to the ICTR.

These men are former members of the Rwandan government and military in 1994 – the very enemy against whom the Rwandan Patriotic Front, led by Rwanda’s current President Paul Kagame, waged war.   A year or so ago, Rwanda expressed its willingness to accept these persons.  Based on the government’s past and current practices and attitudes towards its opponents (both inside and outside the country), the men fear for their safety if they were to set foot on Rwandan soil.

Their fears are unequivocally justified.  The environment in Rwanda under the current government is unsafe for anyone or any party perceived to be in opposition to the regime.  As The Economist’s editorial on the Parliamentary elections in September 2013 stated, “Political opposition has been allowed only where it does not question the RPF’s role as the country’s saviour.”

The opponents of the RPF – whether political candidates, or journalists or other individuals – are imprisoned or found dead.  In the last Presidential election in 2010, the First Vice-President of the Democratic Green Party [one of the three opposition parties excluded from the ballot], Andre Rwisereka, was found dead a few weeks prior to the elections.  Leaders (as well as members) of other opposition parties, such as Me. Bernard Ntaganda, Deogratias Mushayidi, Dr. Theoneste Niyitegeka, and Victoire Umuhoza Ingabire remain incarcerated.   Journalists have been killed inside and outside the country.  In fact, Rwanda ranks 162nd out of 180 countries in the 2014 Reporters Without Borders press freedom index.

Victoire Ingabire, President of the Unified Demcratic Forces (FDU-Inkingi), a coalition of Rwandan opposition parties, returned to her home country after 16 years in exile in the Netherlands to challenge President Kagame in the last Presidential election.  Instead, she was arrested and prosecuted for “genocide ideology,” “divisionism” and other charges related to terrorism and is now serving a sentence of fifteen years (see, Amnesty International’s  2013 publication, Rwanda in Jeopardy:  The First Instance Trial of Victoire Ingabire).   In a Resolution (23 May 2013), the European Parliament stated that it “strongly condemns the politically motivated nature of the trial” and noted that “respect for fundamental human rights, including political pluralism and freedom of expression and association, are severely restricted in Rwanda, making it difficult for opposition parties to operate and for journalists to express critical views.”   Continue reading

Write On! The Legacy of the ICTR

In collaboration with the International Criminal Tribunal for Rwanda, theWrite On! University of Johannesburg, South Africa, is hosting a conference on the legacy of the ICTR.  The conference will be held on 31 October and 1 November 2013.  It is envisaged that leading academics as well as judges, prosecutors, and defense counsel of the ICTR will present their views at the conference.

With the ICTR nearing its end, it becomes important to evaluate the successes and failures of the ICTR for the future of international criminal law.  The conference will cover a wide variety of topics including: the Tribunal’s contribution to international law; transitional justice and reconciliation; and the challenges of international criminal prosecutions in Africa.

The organizers are currently calling for papers.  A short abstract must reach mswart@uj.ac.za by May 24, 2013.

More information on the conference is available here.