In early June the International Criminal Court appeals chamber acquitted Jean-Pierre Bemba in a 3-2 ruling. Two years ago Bemba was sentenced to 18 years’ for his role, as military commander, for atrocities committed in Central African Republic (CAR).
The decision astounded observers. The unexpected, narrowly decided acquittal, brought scads of criticism. This was because Bemba’s 2016 conviction was considered hugely significant. It assigned criminal responsibility to a senior military official physically removed from the violence. It also made sexual violence a centrepiece of the charges.
Sexual violence, a staple of war, has long been absent from international criminal law’s charge sheets. By assigning Bemba responsibility for the rapes committed by fighters under his command, the 2016 judgment was seen as an important doctrinal advance for international criminal law.
Bemba’s acquittal has wide implications. This is true both for Bemba as well as the ICC and international criminal law. Bemba, who will shortly be released, is rumoured to be returning to Democratic Republic of the Congo (DRC) to pursue political goals. There are reports that his party, the Movement for the Liberation of Congo, known as the MLC, has nominated him as its candidate for the presidential race.
By Jina Moore
In July, 1993, an eleven-year-old named Damas Dukundane got a new pair of shoes. His mother bought them, unused, and paired them with a new blue suit. She was not terribly religious, and her son’s baptism would be the only time in her life that she would enter the brick church in the unremarkable village of Kaduha, in rural Rwanda. What the rest of the family looked like on that day, in their nicest clothes, Damas does not remember. There are no surviving photographs, and no surviving witnesses, either.
One year later, his father was missing, and his mother, like so many mothers from the area, had fled to the church, with her five children. Outside, they huddled in a crowd of hundreds, praying for their lives. The village’s men encircled them protectively, raising machetes and sticks, hoping to intimidate the interahamwe, the Hutu militias moving house to house and church to church in a national rush to exterminate the country’s ethnic-minority Tutsi population.
“At first, we were stronger than them, because we were the ones with nowhere else to go,” Damas recalled recently. “We were the ones who were fighting for our lives. Then the military came with guns, and that’s when people realized—we can never win a fight with the military.”
This is how the genocide in Rwanda unfolded. From hilltop to hilltop, across a country famous for its undulating landscape, interahamwe chased their neighbors with machetes and clubs. They were trained, dogged, and successful. But the most efficient, large-scale killing happened when soldiers arrived with automatic weapons and seemingly limitless ammunition. “When they started shooting into the crowd, the people ran. We realized this time there was no way they can fight,” Damas said. “That is how the apocalypse of us happened.”
The man who brought the military to Damas’s church was Aloys Simba. In 1994, Simba was fifty-five years old, an ex-colonel celebrated for helping to bring Juvénal Habyarimana, then the President, to power in a coup in the nineteen-seventies. On the evening of April 6, 1994, for reasons that are still a matter of historical dispute, Habyarimana’s plane was shot down. After the crash, the Tutsi became prey for legions of armed, agitated Hutu militiamen. Killings quickly began, and then spread. Virtually every hilltop became a death site that rainy season, as Hutu extremists killed an estimated eight hundred thousand of their neighbors in just a hundred days.
Simba armed the soldiers who attacked the Kaduha parish. He ordered them to chase every last Tutsi who might escape and kill any Hutu comrade who showed mercy. He forced the condemned to dig their own graves. In 2005, Simba was convicted of genocide and crimes against humanity at an international war-crimes tribunal, in Arusha, Tanzania. Other places where he killed—Murambi, Kibeho—are, in today’s Rwanda, touchstones of collective memory. His conviction was affirmed in 2007, after an appeal.
Soon, if all goes as planned—and there is little reason to expect that it will not—Simba, a giant of genocide, will be a free man. He is expected to be paroled, along with Dominique Ntawukulilyayo, who, after promising twenty-five thousand Tutsis safety, lured them to a hilltop in Kabuye before having them slaughtered, and Hassan Ngeze, a journalist whose hateful propagandist newspaper, Kangura, many Rwandans still see as the real fuel of the genocide. The court regards Ngeze’s conviction for inciting genocide as a “landmark” in international justice, though his life sentence was reduced to thirty-five years on appeal.
“We really thought someone like Ngeze, at least, who really incited the extremists to kill their neighbors, should stay in prison for life,” Freddy Mutanguha, the vice-president of Ibuka, a national association of survivors of the 1994 genocide, said. “He made too many victims in this country. It’s really very insulting.” He called the court’s practice of early release “a new form of impunity.”
Whether to release the three men is up to one judge, Theodor Meron, the president of the Mechanism for the International Criminal Tribunals, whose decision cannot be appealed. Though thousands of procedural considerations went into setting up the International Criminal Tribunals for Rwanda and the former Yugoslavia, twin courts tasked with trying the perpetrators of near-simultaneous genocides, the ad-hoc system nevertheless failed to establish clear standards for sentence reductions. Now, more than twenty years after the trials began, the guilty who have been imprisoned in seventeen countries around the world are asking to get out early. A study from 2014 found that nearly half of the convicts from both courts have been released, the vast majority of them before serving full sentences.
The first decisions in paroling genocidaires cited domestic parole regulations, which often grant eligibility after two-thirds of a sentence has been served; over time, as Meron has noted, the Tribunals have come to rely on two-thirds of time served as an eligibility standard. But critics question any parole system for the world’s gravest crimes. Early release of rehabilitated criminals may make sense in states that are trying to reduce the costs of incarceration, and where authorities can monitor the activities of parolees. But the criminals convicted by international tribunals have perpetrated a scale and degree of harm that domestic regulations were not designed to account for; furthermore, they are not supervised after their release, and there are no legal grounds for detaining them should they once again begin stoking ethnic hatred or worse. In a letter to the court, the Rwandan government has adamantly protested the request, writing that the men’s crimes “offend all standards of humanity, morality and decency” and continue to harm Rwanda and Rwandans a quarter-century later. Damas wholeheartedly agrees. “This may not be something the whole world is ready to understand—it’s just my opinion—but, if we are going for justice, Simba cannot be let out,” he told me. “It would be unfair for the small people who took those machetes, who came running after us, who had no idea of whatever was happening up the chain of command.”
More than a million of those “small people,” the petty genocidaires, were tried over nearly a decade in Rwanda’s gacaca, or “grass courts,” a system meant to insure that not a single Hutu crime went unpunished. Early releases came after both confession and contrition, which the accused often demonstrated by showing the community where he had left the bodies of those he killed. At gacaca, remorse, like innocence, required proof.
The system is different for those convicted in the U.N.-created Tribunals. In granting early release to the convicted, the Tribunals presume their rehabilitation—even when they demonstrate precisely the opposite. So far, we know very little about the remorse of the three men asking now for early release: a confidentiality rule protects the contents of their applications. Johnston Busingye, Rwanda’s Minister of Justice, said that the government twice asked to see the applications prior to its response, but the court never replied. “This is not a deal with thought for the victims,” he said. “This is a deal between the convicts and the court.”
In fact, Busingye said, this is the first time since the early release of Rwandan genocidaires began in 2012 that the court has bothered to ask for the Rwandan government’s input at all. The court is not required to consult with Rwandan officials before ruling on early-release applications, nor is it required to inform any of the eighteen hundred people who were offered witness-protection services in exchange for their testimony. In 2016, when Ferdinand Nahimana, who co-founded a hate radio station that broadcast the names and locations of surviving Tutsis, was released after serving two decades of his thirty-year sentence, the Rwandan government and its citizens, including those who testified against him, found out on the radio.
When the International Criminal Tribunal for Rwanda concluded its last trials, in 2012, its sixty-two convictions were hailed as a triumph of justice, both in the narrow criminal sense and, more broadly, as a method of historical documentation and a foundation for reconciliation. So far, nearly twenty per cent of its convicts have been released early. If the three pending requests succeed, the lawyers for the Rwandan government expect Théoneste Bagosora, who is regarded as the mastermind of the genocide, to file a similar request later this year.
Human-rights advocates say that paroling the perpetrators threatens the entire logic of international criminal law. “You convict people for genocide, they get relatively low sentences, and then they are eligible for early release—it completely undermines the process,” Toby Cadman, a co-founder of Guernica 37, an international-justice law firm in London, told me.
Or, as Damas put it: “If Simba is let out, who is left in?”
More than hate, more than fear, more than machetes or machine guns, scale has always been the genocidaires’ most powerful weapon. The world remembers mass murder, mass rape, mass crimes, and speaks with pathos of nameless, faceless victims—and the tribunals tell us, through millions of pages of testimony and other overwhelming proof, that those mass crimes were committed by these relatively few men. The perpetrators’ ability to execute atrocity outstrips our capacity to imagine it. We cannot grasp it. The overwhelming proof overwhelms us. A countable collection of perpetrators has become as faceless, as abstract, as the thousands and thousands of people they’ve killed.
This is not, of course, how Damas feels about Aloys Simba. Damas, whom I first met in Rwanda nearly fifteen years ago, is now the father of three children, and an adopted member of my family. But, after the soldiers sent by Simba shot into the crowd at Kaduha parish, he never saw his own family again: his mother ran, with a newborn in her arms and Damas’s siblings trailing behind, down a hill. Damas, at eleven, had refused to follow. He fled up the hill instead, and he was pushed by a stranger into the priests’ living quarters. He hid under a bed there, as the massacre that began at dawn dragged into dusk. “There was screaming, screaming—there were so many people to kill—and more screaming, until it was the last voice,” he said. “And then that was that.”
This, Damas has learned, is the injustice of international justice: the killers, like their victims, become nameless, faceless statistics. And if we cannot name them, and we cannot imagine their crimes, we will hardly notice when they are let go.
Published on The New Yorker on July 9, 2018