The political character of genocide trials

Governmental cooperation requires political will

The political dimension of these trials is obvious. The host governments that receive a request from the GoR to extradite a genocide suspect must be willing to fund legal actors (e.g., police, prosecutors, judges) to handle these complicated cases, both in the investigatory and extradition phase.

It is hard for the Dutch government to justify the high costs of adjudicating Rwandan genocide cases in the Netherlands during a period in which the government is under attack for limiting the national legal aid budget. Extradition is the cheaper alternative.

In January 2016, the Under Minister of Justice, Fred Teeven, signed a Memorandum of Understanding (MoU) with Rwanda to extradite 15 suspects. However, since he resigned soon thereafter, there has not been a follow-up as of April 2018.

Furthermore, the Dutch government has an interest in affirming that the Rwandan justice sector is in order after all of the development aid money that it has invested in the sector.

The UK government also offers generous development aid to Rwanda. During the UK trials, the GoR placed itself in a difficult position: Two Rwandans living in the UK had received so-called Ozman warnings from the police. They were in real danger of being killed. President Kagame mentioned these two in a speech when he complained that Lieutenant General Karake was arrested in the UK. Kagame said that this arrest was intended to show contempt for Rwanda and to destabilise the country.

The UK District Court observed that, “it is not a satisfactory state of affairs that a foreign government thought it appropriate to plan to kill those taking refuge here at a time they were seeking to take advantage of a memorandum of understanding brought about by diplomatic ties between the two countries, which they hoped would lead to extradition.”¹² The High Court Judges added, “these remarks could have been even more trenchant.”¹³

Defence lawyers and support teams

Defence lawyers in host countries are ambiguous towards the political character of these trials.

Because political opposition against the government in Rwanda hardly exists, it is rooted in the diaspora. The GoR has effectively outsourced the political opposition to other countries. Support groups with good political connections help Rwandans that face extradition. In the Netherlands, Jan Hofdijk and Anneke Verbraeken are key figures in politicising legal issues and organising support for oppositional groups of the GoR (Verbraeken 2017). They have found a political lobby partner in Joel Voordewind, a Member of Parliament for the ChristenUnie. They supported an open letter in a newspaper arguing against the extradition of Mugimaba and Iyamuremye, which was signed by prominent Dutch public figures (van Ardenne 2014).

IBUKA, an organisation representing genocide survivors, filed a complaint against one of the signatories, Prof Ton Dietz, the Director of the African Studies Centre at Leiden University, for lack of academic integrity. This complaint failed. However, IBUKA was successful in its complaint against Anneke Verbraeken, who received an official warning from the Journalist Disciplinary Board for a ‘non-veracious and tendentious' article about the Iyamuremye case (Raad voor de Journalistiek 2015).

Legal complexity

In 2018, the field of Rwandan genocide cases is a legal mess. More than twenty years after 1994, it is unclear which are the right procedures and legal venues for dealing effectively and fairly with these cases. I describe four contributing factors to this legal uncertainty that prevent the realisation of the imperatives of international law.

The hybrid Rwandan legal system

Rwanda is proud of the hybrid character of its legal system. The Belgian colonisers created the basis for a civil law system, but since Rwanda became a member of the Commonwealth, the Rwandan government has introduced many common law concepts into its legal system. Matters are further complicated because ‘traditional legal values' are also part of the Rwandan legal system.

The downside of this hybridity is that it is not easy for foreign lawyers to make a sound judgment of the Rwandan legal system. For instance, common law observers expect cross-examination of witnesses. By contrast, in the civil law tradition, the judge leads the examination of witnesses. Rwandan legal practitioners are themselves not always sure ‘what the law says.'

The judiciary

The UK High Court noticed that there were over 23.000 pages of evidence before the District Judge and her judgment covered 128 pages. The Dutch Mpambara case file consisted of 15.000 pages. The abundance of evidence and facts, testimonies, legal interpretations of treaties, and verdicts of other countries create a rich reservoir of arguments from which national judges can freely choose.

The legal influence of the international courts (ICTR, ECtHR) on national courts was strong in the Netherlands but limited in the UK. The High Court was not impressed by the ICTR's two referrals. The judges argued that the ICTR's decision was not conclusive. For the High Court, there was new information. The ICTR had to close and had a procedure for revocation. The GoR's advocate claimed that “if the ICTR has agreed to transfer cases, who are you to refuse?”¹⁴ The Court rejected that as an “unpersuasive piece of advocacy.”¹⁵

Coordination and streamlining of judicial opinions from different countries are not easy. The differences between common law and civil law jurisdictions play a role alongside the way that national courts respect the decisions of supranational judges.

Witnesses

The reliability of witness testimony is also a rich source of confusion and contradiction. It is not easy for foreign lawyers who do not speak Kinyarwanda to interview Rwandan witnesses. Bouwknegt (2017, 188n4) offers valuable insight from the Akayezu trial at the ICTR.

First up was Dr Matthias Ruzindana, a Rwandan lecturer from the University of Rwanda in Butare. Rwandan witnesses had almost exclusively been interviewed by investigators or testified in court in their language, Kinyarwanda. Strikingly, in lecturing the court on how Rwandans use language to communicate, Ruzindana touched upon a crucial area: “you have to bear in mind [...] that most Rwandese do not write or read. They hear and report what they hear.” “Rwanda,” lectured Ruzindana, “is a society run by oral tradition [...] so therefore they do not rely on print, or on radio or television to know facts [...] A saw or heard something, which he or she said to person B, who reported to person C and so on. This is how information was channelled. Ok? In this situation, the tendency is not to question the source, because very often the source isn't there. You get it from D, who got it from C, who got it from B, who got it from A. But C will not tell D how the information travelled. The tendency will be ‘I heard this,' or, ‘I saw this.'”

“Facts in Rwanda,” Ruzindana thus explained, “are reported as they are perceived by the witness, often irrespective of whether the facts were personally witnessed or recounted by someone else (hearsay).” When asked how Rwandan witnesses respond when asked questions, he jokingly answered that the witness “was not even answering the [prosecutor's] questions directly.” He continued to state that the “Rwandese are rarely straightforward.” They are very general, avoid explanations, beat around the bush, or give implied answers, especially when the issue is delicate. Mostly, answers—or Kinyarwanda words in general—have to be ‘decoded' to be understood correctly, depending on the context, the particular speech community, the identity of and the relation between the orator and the listener, and the subject matter of the question.

Later, in its judgment, the judges themselves recognised other cultural constraints in relying on witness testimony highlighting that Rwandan witnesses had difficulty being “specific as to dates, times, distances and locations” and their “inexperience [...] with maps, film and graphic representations of localities.” However, the judges had not drawn “any adverse conclusions regarding the credibility of witnesses based only on their reticence and their sometimes circuitous responses to questions.”

As time passes, it becomes harder to reliably gather evidence because of the risk of contaminating testimonies and the rapidly deteriorating quality of testimonial evidence. Unfortunately, there are examples of lying witnesses. Furthermore, witnesses are threatened and groups of witnesses abroad sometimes fabricate evidence (Bouwknegt 2017, 171n5; refers to “denunciation-syndicates”).

Experts

It is also hard to explain why Witteveen's analysis was not followed by the Dutch Court of Appeal, while it became a pillar of the UK's High Court decision. Even neutral legal experts do not provide a solid basis for predictable outcomes. The case of Martin Witteveen is a nice example of a prophet that is not revered in his own country and is heeded abroad.

Undesirable consequences

Because official legal routes lead them into an impenetrable legal forest and costly court cases, foreign governments of host countries are looking for alternatives. One possible avenue is following the path of administrative law. For example, the Dutch government has withdrawn Ingabire's spouse's residence permit. In a so-called 1F situation, the residence permit of the accused can be easily revoked with limited judicial control. The person loses his or her social security rights and remains in a legal limbo if the government takes no further initiatives (Bolhuis, Middelkoop, and Van Wijk 2014).

In May 2016, Underminister of Justice Teeven informed Parliament that all Rwandan asylum cases since 2008 had been reviewed on 1F aspects (van der Steur and Dijkhoff 2016). This review had led to ten cases of residence permit revocations and two (unsuccessful) attempts to withdraw the Dutch citizenship of two former Rwandans. These approaches make the Netherlands a very unattractive place for Rwandan genocide suspects. They might decide to leave to other countries, such as Belgium or France. To put them in a legal void is not compatible with decent, rule of law requirements (but it does reflect the changing hostile attitudes towards ‘illegal' foreigners).