Taking stock of the legacy of ICTR

Pan African Review (PAR) Interview with Mr. Serge Brammertz, Chief Prosecutor General of the International Residual Mechanism for Criminal Tribunals (IRMCT) that took up functions of the International Criminal Tribunal for Rwanda (ICTR)

PAR: What would you say about the legacy of ICTR vis-à-vis the Genocide against the Tutsis of 1994?

Mr. Brammertz: I think that it was a historical decision. With the Yugoslavia tribunal, it was the first and only times the Security Council created a tribunal. This, I think, reflects the importance given to the Genocide against the Tutsis by the international community and the Security Council. In the 90s, there was obviously stronger support and consensus within the international community and UN’s Security Council to create accountability mechanisms. Probably more support than, unfortunately, what we see today.

PAR: Given the political will behind international justice and also given what has been achieved so far, what do you have to say about that?

Mr. Brammertz: It always depends on the perspective you are taking. There have been a bit more than 90 indictments by the ICTR. That is actually a lot compared to other international tribunals, more than the ICC, the Sierra Leonean, and Cambodian tribunals put together. Overall, then, if we look at international prosecutions in general, then I’d say that the way the international community and international authorities have addressed the crimes of the Genocide against the Tutsi is very significant.

But of course, from a victim’s perspective, 90 is still a small number knowing that there were tens of thousands of perpetrators. So, I think the achievements of the ICTR have to be seen alongside the tremendous work done by the national judiciary and also by the Gacaca Courts. If you have a conflict of massive crimes like in the genocide against the Tutsis, you need to find a way to have a comprehensive justice, where, in fact, international justice, national justice and, if necessary, local judicial solutions are integrated.

PAR: Some genocide convicts have since written books justifying or denying the crimes for which they have been convicted. If convicts are allowed to publish books or if they benefit from early release and go on to promote the same ideology that led to the killing of over one million Tutsis, what does that say about a justice system that oversaw their conviction, imprisonment and release? I ask because there is a perception that the international community has been very lenient with people who have committed heinous crimes, as convicts are released for “good conduct.” Should there be such leniency?

Mr. Brammertz: Well, I have always taken quite a strong position against automatic early release. An early release should be exceptional, based on specific circumstances, and, if granted, it has to come together with a number of measures in relation to public speaking, denial, and recognizing all the wrongdoings. The practice has now changed, thanks in part to my Office’s efforts. So, we are satisfied that finally, after many years, the system of early release is more similar to national systems, and convicts are not automatically released after serving 2/3 of their prison terms, independently of circumstances.

PAR: When did this effect come into place?

Mr. Brammertz: It has been a development under the new president, President Agius, who took over in January 2019. His decisions on early release applications have considered more factors than in the past, including submissions from victims. He has also imposed conditions on convicts when he grants early release.

PAR: What would you say are the most remarkable decisions of the ICTR that are key in dealing with post-ICTR denial and the minimization of the Genocide against the Tutsi?

Mr. Brammertz: There have been important cases against high-level perpetrators like Bagasora, but I believe all cases are important for establishing the truth. The world needs to know what the victims suffered, whether the perpetrator was an important person or a neighbour. Of course, if you speak about what were the most important legal decisions, having sexual violence as an element of the commission of the genocide is definitely one of the instrumental decisions which have been taken. More recently, of course the arrest of Kabuga brought attention again to the Genocide and reminded everyone that more justice is still needed.

PAR: What is your view on the question of genocide denial and what do you think that Rwanda and the international community must do to address it?

Mr. Brammertz: I have said many times publicly that genocide denial is the last stage of genocide. Genocide denial seeks to destroy all traces of the victims and erase the memory of what they suffered. I have been the prosecutor of the ICTY [International Criminal Tribunal for the Former Yugoslavia], and now I am the prosecutor of the Mechanism. In my professional experience, I have seen that genocide denial is present in many places. It is a significant issue, whether you speak about certain elements in the diaspora denying the Genocide against the Tutsis or people in the Balkans denying the Srebrenica Genocide. Sometimes, it seems that those who are active in genocide denial are more visible than those who are fighting against it. So, I am always making a public call, highlighting that everyone needs to be more proactive. The truth of genocide needs to be taught at all levels of education, and there must be strong remembrance and information centres. The problem is so significant that even more needs to be done. That is why I have always been supportive of legislation that punishes denial. It started with Holocaust denial, but more and more these laws address denial of the Genocide against the Tutsi as well as other crimes established by international tribunals.

PAR: The ICTR judicial notice in Prosecutor vs Karemera et al is widely believed to be a key reference in fighting genocide denial. Can you elaborate?

Mr. Brammertz: International judges have repeatedly said that the Genocide against the Tutsi is a fact of common knowledge. What this means is that it is a truth beyond any dispute. But as I said, it’s not about individual cases, but action. We had last year an important event with the former Permanent Representative of Rwanda to the UN, Ambassador Valentine Rugwabiza, where we discussed the need to joint efforts in relation to fighting denial. That means making sure that victims and survivors have a very strong voice and are heard. It also means not giving those who deny genocide a public platform.

We see, for example in the ex-Yugoslavia, many convicted war criminals publicly deny their crimes, and they are even running for political office. Can you imagine? Thankfully, something like that is not possible here in Rwanda, but it is critical that, everywhere, we publicly stand against those who deny genocide.

PAR: Isn’t there any international concern that someone who has been convicted in international justice is pursuing political positions because they could be back in a position where they could perpetuate the same ideology?

Mr. Brammertz: This is definitely something the international community needs to carefully look at and critically examine. It is important to set up international tribunals in order to investigate and prosecute these crimes, but it is not enough. The decisions and judgments have to be respected. I think that it is very important that the international community reacts and reaffirms the truth, and that those who are glorifying war criminals are isolated.

PAR: In the ICTR media trial, we can see a lot of arguments about what constitutes free speech and what is denial. There are elements in the decisions that distinguish what can be acceptable and what is not. Today we are seeing that debate coming back and we say, ok; people are denying but hiding behind freedom of speech, what do you have to say?

Mr. Brammertz: It is a fact that the media is an important factor to consider when you look at how genocide and other crimes are committed. You can see this with Kabuga, who played an important role in Radio-Television Mille Collines. No one can forget the images of genocidaires with a radio in one hand, the machetes in the other, getting information about where people were hiding. Of course, there is a line between freedom of speech and denial. In some countries like the US, freedom of speech is one of the highest values, whereas in some European countries there are more restrictions on genocide denial. In my personal view, there should be laws criminalizing the denial of the judicial decisions made by UN criminal courts. This is probably the best balance, to make it very clear that look, you can express your opinion but there is a limit to what you can say. You cannot deny genocide because, as I said, it is the last stage of genocide.

PAR: Deniers insist that there was no planning in the genocide against the Tutsi. As a prosecutor, what’s your response to this claim?

Mr. Brammertz: Well, there have been enough trials, experts, and witnesses in court, who all argue that you cannot try to exterminate a population if there isn’t some planning, right? This was obvious at the time and there were communications even among the international community that warned that something was going to happen. So, of course, there was planning.

PAR: You have expressed some frustrations that there have been some jurisdictions that are not handing over genocide fugitives. Could you tell us more about that?

Mr. Brammertz: Because the Mechanism was created by the Security Council based on Chapter 7 of the UN Charter, all member countries of the UN have an obligation to cooperate with our office. It is not a question of countries thinking about whether they want to cooperate or not? No! It is a legal obligation. Tracking ICTR fugitives is of course one of the main priorities of the Mechanism. We are utilizing very modern technologies to do this work, and as a result we are gathering important information.

But for years, a number of governments have not been providing us with the support we need. For instance, with regard to the case of Fulgence Kayishema in South Africa, it took over a year before South Africa agreed to execute the arrest warrant and by then, of course, he was no longer in his house. We have also pending requests with Uganda, the DRC, Zimbabwe, where we are still actively engaged. You can’t just give up and close the door. So, we remain proactive and inquire again and again, but it is definitely not making our task easier.

As I said in the Security Council, it is so difficult for me as a prosecutor, but also as a human being, to understand that the country of Nelson Mandela would not help us arrest a guy who is suspected of having been involved in throwing hand grenades in a church full of women and children. But it’s not just South Africa; it’s any country that is not responding to our requests. It is really difficult to conceive that this cooperation isn’t provided. The South African government is now saying that they are willing to set up a task force to help us more actively, but we will have to wait and see.

PAR: The UK has refused to extradite genocide fugitives or to try them. Andrew Mitchel, a British Member of Parliament, has been critical of his own government for failing to hand over or try genocide fugitives. He says that they’ve been able to find a sanctuary in his country and he says that is unacceptable. What is your office doing about this?

Mr. Brammertz: There are more than 1200 international arrest warrants involving individuals who should be prosecuted for crimes during the Genocide, so it’s not about just one country. My Office is working with the Prosecutor General to respond to his request for our assistance to find these people.

PAR: What do you think are the main reasons behind the reluctance of many governments in Europe and Africa in bringing to account genocide deniers?

Mr. Brammertz: What I have personally said publicly for a number of years is that, well, there are only two options if there is serious evidence in relation to a possible genocidaire. As a country, you either prosecute the person yourself or extradite him or her to Rwanda. But it is not acceptable that it stays in limbo. You either prosecute or extradite. The ICTR transferred a number of cases to Rwanda. Since then, the question is, if a UN tribunal has considered that Rwanda is presenting all the guarantees for a fair trial, why should individual countries not do so?

There is definitely progress over the last several years, with extraditions from Germany, Netherlands and from other countries. So, it is definitely an area where we are supporting the Prosecutor-General to make the message clear: you extradite or prosecute

PAR: Is there a mechanism at the Security Council to activate a certain level of sanctions against governments that have willfully ignored your requests?

Mr. Brammertz: Yes, there is a formal mechanism, and I have triggered it in the past with South Africa. We can report a country for non-cooperation to the president, and then the president can formally report that to the Security Council. And then it is up to the Security Council to decide what they will do.

PAR: Recently there was an incident that prompted the government of Rwanda to protest the transfer of genocide convicts to 34 Niger. Is it true that Rwanda was left in the dark? What happened?

Mr. Brammertz: Well, it is difficult for me to comment on it because the execution of sentences is really in the hands of the Registrar, and as Prosecutor I am not involved in this. I fully understand the concerns expressed by Kigali though.

PAR: Finally, genocide commemoration is coming and we have noticed a trend that at least a month or two before the commemoration, there is a concerted media onslaught with denialist themes. It is like the deniers come out of the woodwork and occupy these platforms. What do you have to say about that, especially in the context of what message you would give to the survivors?

Mr. Brammertz: When I was here last month, I met a number of victims’ organizations. I went to the Gacaca archive, and I met the Ibuka Secretary-General. Of course, they made a number of points in relation to denial, reparations, etc. They were almost a little bit apologetic for being very critical. But I said look! if there is one group of people who have the right to be critical it is you. So, I encouraged them to speak out, because they remind us every day why this work is still important.

I strongly disagree with those who consider that the events around the genocide against the Tutsi should be left in the past because it’s been 28 years. For the survivors who have lost so much, these events still dominate their lives every single day. It is important that we continue to fight for them. The strength of the survivors and the commemorations are impactful. So, if the deniers are becoming more active, it is probably that they can see and feel that the truth is stronger than they are. We have to stay vigilant and not give up. I really believe that truth will prevail. And we are stronger than the deniers who are often denying the wrongdoings that they were themselves part of.

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