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
Mr. Karim Asad Ahmad Khan Appointed Special Adviser and Head of the Investigative Team to support domestic efforts to hold ISIL (Da’esh) accountable
United Nations Secretary-General António Guterres today announced the appointment of Mr. Karim Asad Ahmad Khan of the United Kingdom of Great Britain and Northern Ireland as the Special Adviser and Head of the Investigative Team, which was established pursuant to Security Council resolution 2379 (2017), to support domestic efforts to hold ISIL (Da’esh) accountable by collecting, preserving, and storing evidence in Iraq of acts that may amount to war crimes, crimes against humanity and genocide committed by the terrorist group ISIL (Da’esh) in Iraq.
Mr. Khan is the first Head of the Investigative Team. He is a barrister and Queen’s Counsel in the United Kingdom of Great Britain and Northern Ireland, with more than 25 years of professional experience as an international criminal law and human rights lawyer. Mr. Khan has extensive experience in acting as prosecutor, victim’s counsel and defence lawyer in domestic and international criminal tribunals, including, but not limited to, the International Criminal Court, the International Criminal Tribunal for Rwanda, the International Tribunal for the former Yugoslavia, the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon and the Special Court for Sierra Leone.
Mr. Khan holds an LLB (Hons) in law from King’s College, University of London, and various other degrees and qualifications. Mr. Khan has studied and lectured on Islamic law and has published extensively in the area of international criminal justice and human rights.
Published on the UN News Center on May 31, 2018
A court in Ivory Coast has acquitted the former first lady Simone Gbagbo of crimes against humanity and war crimes charges linked to her role in a 2011 civil war that killed about 3,000 people, state television announced on Tuesday.
Judge Kouadio Bouatchi said a jury unanimously voted to free Gbagbo. The prosecution had asked for a life sentence, saying she had participated on a committee that organised abuses against supporters of her husband’s opponent after the 2010 election.
More than 3,000 people were killed after the former president Laurent Gbagbo refused to accept defeat to the current president, Alassane Ouattara.
The trial, the west African country’s first for crimes against humanity, was held in an Ivorian court after the government rejected her extradition to the International Criminal Court (ICC) in The Hague.
“We are happy. Since the start of the trial we proclaimed her innocence. The prosecution’s case against her was empty,” Gbagbo’s lawyer, Mathurin Dirabou, told Reuters after the verdict was announced.
Tuesday’s acquittal was a surprise for many. Simone Gbagbo did not attend the trial in protest and was not present for the verdict.
“I’m disappointed and sad for the victims today. Only international justice can fight against impunity, it seems. We can no longer trust Ivorian justice,” said Issiaka Diaby, president of the association for victims of the crisis.
Simone Gbagbo had already been tried and convicted in March 2015 of offences against the state and sentenced to 20 years in prison, a jail term that was upheld on appeal this month.
Prosecutors in her war crimes trial alleged she was part of a small group of party officials from Gbagbo’s Ivorian Popular Front (FPI) that planned violence against supporters of Ouattara to stop him taking power.
Her husband, Laurent, is standing trial before the ICC on similar charges connected to the brief conflict.
Published on The Guardian's website on March 28, 2017.
By RICK GLADSTONE
The United Nations Human Rights Council adopted a resolution on Friday that authorizes the use of criminal justice experts to devise legal strategies for eventual prosecutions of violations by North Korea.
Approved on the final day of the 47-member council’s four-week session in Geneva, the resolution also authorizes the creation of a central repository for evidence to be used in such prosecutions.
The resolution amounted to what human rights experts called a significant warning to North Korea, one of the world’s most repressive and isolated countries. They called it a step toward a judicial reckoning for North Korean officials and institutions implicated in human rights crimes.
A 2014 report by a United Nations panel of inquiry on North Korea described “systematic, widespread and gross human rights violations” that included a vast network of prison camps and punishments like starvation that it said constituted crimes against humanity.
A letter by the panel sent to Kim Jong-un, the North Korean leader, warned him that he could face prosecution some day and said that the panel was recommending a referral of its findings to the International Criminal Court at The Hague.
It remains unclear what court would undertake such a prosecution, should it ever proceed. While the International Criminal Court was partly created for this reason, approval for a case against North Korea would be necessary from the United Nations Security Council’s permanent members. They include China, which has long signaled its opposition to such a move.
Other possibilities for prosecution have been raised, however, including the formation of an ad hoc tribunal like those that investigated crimes in the Balkans and Rwanda.
Under the resolution adopted on Friday, the Seoul office of the United Nations high commissioner for human rights will be expanded to include criminal justice experts who can develop plans for eventual prosecution. The resolution also would establish a structure to collect evidence “with a view to developing possible strategies to be used in any future accountability process.”
John Fisher, the Geneva director at Human Rights Watch, welcomed the resolution in a statement, saying the “Human Rights Council spoke with one voice today by condemning North Korea’s horrific rights abuses and supporting efforts to bring leading officials in Pyongyang to account,” referring to North Korea’s capital.
He said support for the resolution “shows the resounding commitment of the international community to ensure that Kim Jong-un and North Korea’s rights-abusing authorities don’t escape justice.”
North Korea has denounced all accusations of rights abuses as fabrications concocted by the country’s enemies, led by the United States, and says North Korean people are happy and free.
The North Korean delegation to the Human Rights Council boycotted the debate on the country and said in a statement quoted by Reuters that it “categorically and totally rejects” the resolution.
This article was published on the New York Times' website on March 24, 2017.
The International Criminal Court Friday ordered 297 victims of ex-Congolese warlord Germain Katanga to each be paid "a symbolic" $250 in damages for a brutal 2003 attack on their village, in the tribunal's first such award.
Awarding both individual and collective damages, the court also found that Katanga was liable for one million dollars of the total damages estimated at $3.7 million (3.4 million euros).
Katanga was sentenced by the ICC to 12 years in jail in 2014, after being convicted on five charges of war crimes and crimes against humanity for the February 2003 ethnic attack on Bogoro village in Ituri province of the Democratic Republic of Congo.
He was accused of supplying weapons to his militia in the attack in which some 200 people were shot and hacked to death with machetes.
"The chamber has assessed the scope of the prejudice to 297 victims as $3,752,620. The chamber sets the amount to be contributed by Mr Katanga towards the reparations as one million dollars," said presiding judge Marc Perrin de Brichambaut.
He recognised however that Katanga, currently imprisoned in Kinshasa where he is on trial on other charges arising out of the unrest in the Ituri region, was penniless or "indigent" and had no home or possessions.
The court acknowledged that the "symbolic amount of $250 to each victim of Mr Katanga ... does not make up for the totality of the crime," Perrin de Brichambaut said.
However it "can grant some measure of autonomy to the victims by making it possible for them to engage in some kind of activity... and make relevant decisions pertaining to their current needs."
Friday's order for reparations is a landmark step for the tribunal, set up in 2002 to prosecute the world's worst crimes, and marks the first time that monetary values have been placed on the harm caused by such crimes.
The court asked the Trust Fund for Victims, set up under the tribunal's founding guidelines to support victims, to consider using its resources to pay for the reparations and to come up with a plan for the court by late June.
Legal representatives for the victims had assessed the damage caused by the attack at $16.4 million in a filing to the court last year.
Katanga was watching Friday's order from his prison in Kinshasa, while five victims representing the group followed in the village of Bunia with their lawyers.
This article was published on The New Indian Express on March 24, 2017.
By Stephanie Nebehay
A new body is being set up at the United Nations in Geneva to prepare prosecutions of war crimes committed in Syria, U.N. officials and diplomats said on Thursday.
The General Assembly voted to establish the mechanism in December and U.N. Secretary-General Antonio Guterres is due to name a judge or prosecutor as its head this month.
"We expect to start very, very shortly with just a handful of people," a U.N. human rights official told Reuters.
The team will "analyze information, organize and prepare files on the worst abuses that amount to international crimes - primarily war crimes, crimes against humanity and genocide - and identify those responsible", she said.
While it would not be able to prosecute itself, the idea is to prepare files for future prosecution that states or the International Criminal Court in The Hague could use.
The focus on prosecutions means evidence collected since 2011 by a U.N. Commission of Inquiry may be sharpened into legal action.
The COI has issued 20 reports accusing the Assad government, rebel forces and Islamic State of mass killings, rapes, disappearances and recruiting child soldiers.
It too lacks a prosecutorial mandate, but has denounced a state policy amounting to "extermination", and has compiled a confidential list of suspects on all sides, kept in a safe.
Rights watchdog Amnesty International said last week the Syrian government executed up to 13,000 prisoners in mass hangings and carried out systematic torture at a military jail. Syria denied the report, calling "devoid of truth".
A Swedish court on Thursday sentenced a former Syrian opposition fighter who now lives in Sweden to life in prison for war crimes.
A U.N. report in January put the start-up budget for the new team at $4-6 million. So far $1.8 million has been donated, the U.N. official said. Funding is voluntary, posing a major challenge.
The United Nations aims to recruit 40-60 experts in investigations, prosecutions, the military, and forensics, diplomats said.
"It's a very important step. It will not only allow court cases but also help us preserve evidence if there are cases in the future," a senior Western diplomat said.
Legal experts and activists welcomed the initiative.
"The focus is on collecting evidence and building criminal cases before the trail goes cold," said Andrew Clapham, professor of international law at Geneva's Graduate Institute.
Jeremie Smith of the Cairo Institute of Human Rights Studies said the United Nations must lay the groundwork for prosecutions ahead of any "exodus" of perpetrators when the war ends.
"This is the only way to make sure criminals don't get away by fleeing the scene of the crime."
The new team will seek to establish command responsibility.
"This is mass collection of information on all sides with a view to prosecution in the future by the ICC (International Criminal Court), national courts or in some completely new international tribunal that would be created," Clapham said.
Many national courts could pursue suspects using its dossiers, he said. States that have joined the ICC could bring cases to the Hague court, without referral by the Security Council.
This article was published on Reuters' website on February 16, 2017.