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September|October 2002
Rwandan Ghosts By Victor Peskin
National Sovereignty By Ruti Teitel
Radio Hate By Dina Temple-Raston
Kiss & Tell By Amy Benfer

Rwandan Ghosts

Eight years after the genocide, an international tribunal is failing to sort the criminals from the victims.

By Victor Peskin

For three years, Sammy Bahati Weza helped defend a Hutu military leader accused of rounding up minority Tutsis in the prefecture of Cyangugu during the 1994 Rwandan massacres. The charges against Lt. Samuel Imanishimwe included genocide. As a defense investigator for the International Criminal Tribunal for Rwanda (ICTR), which is based in Arusha, Tanzania, Bahati Weza's job was to gather evidence to refute the charges.

Imanishimwe's ongoing trial began in September 2000. Bahati Weza, who identified himself as a Congolese, often watched from the courtroom gallery during the trial's early months. On a number of occasions, survivors testified that another Hutu named Simeon Nshamihigo, the deputy prosecutor of Cyangugu at the time of the massacres, had supervised roadblocks and ordered the killing of Tutsis who tried to walk through them. The witnesses said Nshamihigo had helped herd people into a stadium, where some of them died for lack of food, water, and sanitation, and that he helped forcibly to take away others so that they could be killed. Based on these accounts, prosecutors opened an investigation into Nshamihigo.

Then, in early May 2001, someone saw Bahati Weza in Arusha and told prosecutors two unsettling things. The first was that Bahati Weza was a Rwandan, not a Congolese as he (and his passport) said. The second was that his real name was Simeon Nshamihigo.

A month later, the 41-year-old defense investigator pleaded not guilty to charges of genocide and crimes against humanity. Nshamihigo's arrest was followed by the dismissal or suspension of four other defense investigators also suspected of killing Tutsis. And in December, another defense investigator named Joseph Nzabirinda was arrested in Belgium after witnesses before the tribunal identified him as a member of the Interahamwe, the Hutu militia responsible for many of the 1994 killings. At the United Nations detention center in Arusha, Nshamihigo and Nzabirinda spend their days behind bars awaiting trial.

The discovery of genocide suspects on the ICTR's payroll has threatened the integrity of the experiment in international law taking place in Arusha. Along with the International Criminal Tribunal for the Former Yugoslavia in The Hague, the tribunal for Rwanda is the first international court to try war criminals since the famous ones in Nuremberg and Tokyo following World War II. The U.N. Security Council set up the courts in 1993 and 1994 respectively to prosecute leaders suspected of committing genocide and crimes against humanity, and to alleviate Western guilt about having let them rage unchecked. The tribunals are the forerunners of the newly established and permanent International Criminal Court, which will be based in The Hague.

The Bush Administration strongly opposes the ICC—which was formally created in July—citing the potential threat to the authority of the U.S. courts and to Americans whom, theoretically, the court could prosecute. (See "Go Dutch," pp. 16-17.) But the revelations about Nshamihigo and Nzabirinda expose a more practical and perhaps more debilitating problem for international tribunals—porous security and inept bureaucracy. The arrests have undermined the ICTR's relationship with the current Tutsi-led government of Rwanda, which was already fragile, and have shaken the faith of some in the international diplomatic community, which was already weak. As a European diplomat based in Rwanda put it recently, "Imagine Klaus Barbie working for the defense at Nuremberg."

At stake is the safety of prosecution witnesses: As members of defense teams, investigators commonly receive confidential information about survivors who testify at the tribunal, including their names. A genocide suspect who can identify a survivor poised to give incriminating testimony in Arusha, it is feared, could easily encourage colleagues in Rwanda to intimidate or kill the witness. Because of these concerns and allegations that witnesses have been mistreated at the tribunal, Ibuka and AVEGA, influential organizations of survivors to whom many witnesses belong, suspended cooperation with the tribunal in January.

Since then, citing the boycott, two witnesses expected to testify have failed to show up for hearings in Arusha. Numerous other potential witnesses have refused to work with tribunal investigators. In June, the Rwandan government effectively blocked witnesses from traveling to Arusha to testify over the summer, forcing judges to adjourn two trials.

The government claims that the travel restrictions aren't related to the boycott; others say Rwanda is disrupting cooperation for political gain, to prevent the tribunal's chief prosecutor, Carla Del Ponte, from indicting Tutsi members of the Rwandan army for war crimes allegedly committed against Hutus in 1994. When Del Ponte and tribunal administrator Adama Dieng traveled in late June to the country's capital of Kigali, 3,000 protestors demonstrated outside the court's offices there. "Go home, you are nothing worse than Interahamwe," shouted an Ibuka speaker. Some diplomats said the government played a pivotal role in the protest.

Regardless of the source of the crisis, the breakdown in cooperation between the tribunal and Rwandans could derail the court's work, since prosecutors depend heavily on witness testimony. As important as it is to prevent this, however, the tribunal may not have the institutional competence to weed its ranks of genocide suspects. Nshamihigo and Nzabirinda were undone by chance encounters long after background checks failed to reveal the former ties they are now suspected of having. Unverified rumors that the tribunal harbors more genocide suspects continue to swirl in Rwanda.

In Kigali, trucks ferry pink-clad Hutu genocide suspects back and forth from overcrowded prisons to work sites during the morning and evening commutes. It's a rare visible reminder of the genocide. In most communities, the genocide's legacy of fear, distrust, and poverty simmers beneath a surface calm. Deep divisions persist between Hutus and Tutsis, and also between Tutsis who survived the genocide and those who were in exile abroad during those bloody days and have returned, many to hold high government positions. But there is no room for separation; Rwanda, which is somewhat smaller than Maryland, is ten times more densely populated than the United States as a whole.

Since the genocide, Hutus account for 84 percent of Rwanda's population of about 8 million; Tutsis for roughly 15 percent. The groups are often said to differ physically—the stereotype is that Tutsis have finer features and lighter skin—but it's unclear what, if anything, actually distinguishes them. The high level of marriage between the two groups makes the supposed physical distinctions misleading in any case, and during the genocide some Hutus were murdered after being mistaken for Tutsis.

Still, the notion that Hutus and Tutsis are different has taken root, thanks in part to Rwanda's Belgian colonizers. In governing the country from 1918 to 1962, the Belgians made ethnic tensions worse. First they favored Tutsis for administrative posts and prevented Hutus from entering universities. Then, when Tutsi elites began pushing for independence in the late 1950s, the colonizers installed a Hutu supremacist as president and gave their blessing to independence in 1962.

For most of the next 30 years, Hutu-led governments curtailed Tutsis' rights. Hutus had turned to attacking Tutsis in 1959, killing some and sending many more into exile. Similar waves of ethnic violence swept the country in the 1960s and 1970s. In 1990, the Tutsi-led Rwandese Patriotic Front struck back, invading northern Rwanda from Uganda to overthrow the government and bring the refugees back. After intermittent fighting over the next few years, in August 1993 the RPF and then-president Juvénal Habyarimana, a Hutu, signed a power-sharing agreement in Arusha. The compact officially brought an end to the war; it also promised elections and allowed for U.N. peacekeeping to monitor the implementation of the agreement.

But hopes for peace quickly deteriorated. Loath to share power with Tutsis, Hutu extremists demonized them and stirred up opposition to the Habyarimana regime. In early April 1994, a plane carrying Habyarimana and the president of Burundi was shot down on its approach to Kigali. The circumstances of the crash were mysterious, but some observers suspected that Hutu extremists had arranged for the president's assassination because he'd become too conciliatory. The extremists began slaughtering Tutsis and moderate Hutus in Kigali the day after the plane went down.

Within days, scores of moderate government officials and ten Belgian U.N. peacekeepers were murdered; within weeks, the U.N. Security Council removed most of its forces stationed in Rwanda. One hundred days of genocide followed. Between 500,000 and 800,000 Tutsis and moderate Hutus were massacred, many of them hacked to death with machetes. The United States and its Western allies failed to intervene. The genocide ended in early July when the RPF took control of Kigali.

Like the Allied armies that marched victorious into Germany in 1945, the RPF had the power to enforce a victor's justice. Following the genocide, the new government made more than 100,000 arrests. But most of the highest-ranking officials suspected of committing war crimes fled Rwanda in the genocide's waning days. Many of the refugees, who totaled two million, returned to Rwanda in 1996 after the RPF broke up camps in neighboring Congo that harbored thousands of perpetrators. With money and connections abroad easing their escape, however, the major suspects eluded capture.

It is the job of the ICTR to find and try these suspects while the Rwandan courts handle less serious offenders. To do its work, the tribunal must rely on the cooperation of the governments of Rwanda and neighboring countries, which under international law are required to consent to the transfer of witnesses to the tribunal and to investigations on their soil. Unlike a domestic court that has a police force to back up its orders, the ICTR has little enforcement power. Yet the roster of detainees at Arusha is a veritable Who's Who of Hutu power during the genocide and includes the former ministers of foreign affairs, commerce, and finance, and military and religious leaders. Investigators have arrested 60 suspects, tracking them down in Africa, northern Europe, and the United States.

Still, the halls of the tribunal in Arusha don't radiate energy or idealism. Persistent management problems and allegations of corruption are hurting the tribunal's self-image. In eight years, the ICTR's nine judges—who currently come from South Africa, Senegal, Norway, Russia, Slovenia, Tanzania, Lesotho, St. Kitts, and Madagascar—have handed down only eight convictions, three of which were the result of plea bargains, plus one acquittal. The trials of 22 suspects are in progress. By comparison, though the tribunal for the former Yugoslavia has caught fewer top-level suspects, it has convicted 27 people and acquitted five. Eleven suspects are now on trial at The Hague. U.N. sponsors in New York and others in the international community complain about the slow pace in Arusha; they fund the ICTR at a current cost of about $96 million a year (the tribunal in The Hague receives about $110 million annually).

The Rwandan government has long questioned the ICTR's effectiveness. Initially, the Rwandans requested the formation of an international court. But when the U.N. Security Council decided to locate the tribunal outside the country and not to allow the tribunal to use the death penalty, Rwanda, which then held one of the security council's rotating seats, cast the lone dissenting vote against the court.

Rwanda's own justice system is moving far more quickly. Human Rights Watch says that through March 2001, about 5,300 genocide suspects were tried in Rwanda, with 83 percent of them convicted. Courts in Rwanda can move faster because the procedural protections they offer are weaker than those found in international law. Trials there also are simpler to administer than those in Arusha, where the proceedings are often slowed by the task of translating much of what is said into three languages: English, French, and the Rwandan language of Kinyarwanda.

Still, Rwanda faces a backlog of more than 100,000 cases related to the genocide, which would take generations to try at the current pace. So in June the government began reverting to a version of the traditional courts, called gacaca in Kinyarwanda for the "patch of grass" where disputants sit. Two hundred and fifty thousand judges elected locally will oversee streamlined, village-based prosecutions for crimes committed in their communities. The scaled-down proceedings offer even fewer due- process safeguards than the regular courts, which will continue to handle the most serious genocide cases. Defendants, for instance, do not have a right to counsel before the gacaca courts. Yet according to a recent report by Human Rights Watch, these courts offer "the only hope of trial within the foreseeable future for the tens of thousands now suffering inhumane conditions in prisons and communal lockups."

In peaceful, lush northern Tanzania, the ICTR judges hear cases in three courtrooms that occupy a large, concrete conference center. The walls of the main courtyard are painted with the logo "Arusha, 'The Geneva of Africa' "—a quote from remarks that Bill Clinton made during a presidential visit in 2000. With the languid weather, bright sunshine, and view of the majestic cone of the 14,990-foot Mount Meru, it's hard to imagine that prosecutions for war crimes are now taking place here. The international media often acts as if they aren't, paying much more attention to The Hague, particularly to the dramatic prosecution of Slobodan Milosevic. The few outsiders in the Arusha courtrooms are a mix of journalists, defense investigators, and tourists catching a bit of a trial before heading out for a safari in the nearby Serengeti plains.

On the ground floor of the conference center in a walkway that until recently served as a canteen, prosecutors and other staff members trade gossip over the sound of ping-pong from a nearby room. Some defense investigators mix freely with staff members, grabbing coffee at the canteen and checking their e-mail in the small library. But many stay tucked away in cramped offices they share in a nearby building with the lawyers who hire them. Day to day, they pore over court documents and follow trials. Many also travel abroad to find witnesses who will testify for the defense.

About 45 of the 50 defense investigators are Hutus. Other than a few translators and low-level staff members, they are practically the only Rwandans employed at the tribunal. Defense lawyers argue that Rwandans, who know the country's language and mores, make the best investigators. Only Hutus are available because Tutsis want nothing to do with the defense of war crimes.

Some at the tribunal, however, question the qualifications of many Hutu investigators. "It is a mafia," one official said in reference to the ease with which genocide suspects have gained employment at the court. "The problem is our [defense] investigators are not really investigators." There is evidence that some Hutu defendants press their lawyers into hiring their relatives and friends, and that lawyers are splitting with defendants the fees they get from the tribunal for representing people who say they can't afford to hire their own counsel. Two investigations by the U.N. Office of Internal Oversight Services found support for allegations of fee-splitting at the ICTR and The Hague.

However corrupt the hiring process, it's still hard to explain why genocide suspects would take jobs at a tribunal charged with tracking down their kind. Generous salaries may be one reason. Defense investigators earn up to $2,500 a month, a small fortune in Rwanda, where civil servants typically make about $200 a month. Money may especially attract Hutu refugees, thousands of whom still struggle to earn a living in exile.

Another possibility is that some war-crimes suspects convince themselves that working under the nose of prosecutors offers good cover. As a European diplomat put it, "Nobody would have ever [thought] a possible genocide suspect would hide under the wing of the ICTR." In distance and tone, the tribunal feels far from Rwanda. Once genocide suspects get there, a kind of denial may settle over them—as well as over tribunal officials in charge of security. The tribunal's relaxed atmosphere and attention to abstract questions of law and procedure seem to lull many of those inside into a comfortable state of denial. In Arusha, one prosecutor explained, the genocide is "almost too hard to really imagine ... almost something you don't want to imagine."

There is also a more sinister explanation for the presence of genocide suspects at the tribunal. Rwanda's political future may depend on whether the Hutu leaders now detained in Arusha spend years in prison, or become free to organize armed resistance to the Tutsi-led regime. Rwandan officials say that some Hutu defense investigators may be foot soldiers in a legal battle to spring their leaders. The supposed strategy is to exonerate those charged with war crimes and to spin a revisionist history by reducing the scale of the genocide or the nature of the killings.

Whatever their reasons for working at the tribunal, genocide suspects probably didn't worry much about getting caught before Nshamihigo and Nzabirinda were arrested. Lax security and a thriving black market in forged passports and false identities make it easy for anyone to pass for someone else. "You come and say 'I'm X, Y, Z from the Congo' and that's it," one prosecutor observed. "It's difficult to prove that you are not." Witnesses are unlikely to identify war-crime suspects among the tribunal's staff: For their protection, many witnesses testify from a shielded booth and cannot see into the gallery or the audience. A defendant who recognizes a fellow perpetrator has little incentive to expose him.

Defense investigators may be particularly well hidden. Unlike other employees, they are usually short-term hires selected by defense attorneys—"independent contractors," the tribunal calls them in press releases—who do not go through the same prolonged screening as permanent staff. The tribunal requires ten years of experience for defense lawyers, but no such minimum for investigators. The task of screening applicants generally falls to the Registry, the tribunal's main administrative division, which according to some prosecutors lacks the most up-to-date information on war-crime suspects and the expertise of the prosecution investigators who hunt for them worldwide.

After Nshamihigo's and Nzabirinda's arrests, tribunal officials said they had begun scrutinizing applicants more closely. "We have our ways of doing those investigations to be sure that [prospective employees] don't have backgrounds that may embarrass the court," tribunal spokesman Kingsley Moghalu said at an April press conference. Some diplomats are reassured by the tribunal's pledges. But others at the tribunal, including prosecutors, worry that not enough is being done to improve the screening process.

The task is a formidable one, given budget constraints—and the challenge of ferreting out Hutu war criminals without fueling false suspicions of other Hutu employees. Some Hutu defense investigators say Arusha is starting to feel like the Rwanda they left behind, divided and raw with suspicion. They worry that if a Hutu works at the tribunal, it creates a presumption that he is a genocide suspect in hiding, at least in the eyes of the Rwandan government. "It's a risk to be a defense investigator in the current circumstances," one Hutu defense investigator said. "A high risk."

Several weeks after Nshamihigo's arrest, chief administrator Adama Dieng dismissed three defense investigators alleged to be on Rwanda's most-wanted list and suspended a fourth. But while one of the investigators, Aloys Ngendahimana, had the same name as a man wanted by Rwanda, he was 13 years older and came from a different part of the country.

One month after firing Ngendahimana, Dieng announced that the investigator's contract would be renewed after all. But Dieng never completely cleared him. A press release from the tribunal said only: "Reliable additional information has shown that there is a possibility that the defense investigator and the person under investigation by the Rwandan authorities are namesakes." To Diana Ellis, the British defense lawyer who hired Ngendahimana, the tribunal's treatment of him was "fundamentally unjust."

The Rwandan government, however, remains much more concerned about security lapses than about false accusations. In March, the government sought to expand the mandate of a proposed joint commission between the tribunal and Rwanda on the alleged mistreatment of witnesses to include the vetting of Rwandan tribunal employees.

The government's bid to play a role in the screening of employees went too far. Defense lawyers raised strong objections, and tribunal officials decided that Rwanda's request had no legal basis and would have required the court to cede too much of its authority. "The Rwandan government cannot vet the employment of Rwandans at this tribunal," spokesman Moghalu explained in an April press conference. "We don't, in the administration of the tribunal, take instructions from any government, and that includes Rwanda."

The dispute points to the tribunal's delicate position: It can't afford to be perceived as bending to Rwandan pressure. If the ICTR wants to be seen as impartial in the eyes of defense lawyers and the international community, the Rwandan government must be kept at arm's length.

At the same time, Rwandans aren't likely to have faith in the tribunal as long as they think genocide suspects are hiding in Arusha. The need for trust will be particularly acute this winter, when chief prosecutor Del Ponte hopes to hand down her first indictments against Tutsi officers for war crimes allegedly committed during their service in the RPF. The arrests of Nshamihigo and Nzabirinda and the aftermath are reminders of how easily international courts can be discredited.

Victor Peskin is a Ph.D. candidate in political science at the University of California, Berkeley. He is currently researching a doctoral thesis on the politics of the war-crimes tribunals in Arusha and The Hague.

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