One for the Law Books: In Africa, A UN Court Prosecutes Genocide
Tribunal in Arusha, Tanzania, hopes to set a precedent in international law. The first verdict is expected next month.
In 1962, Israelis kidnapped Nazi Adolf Eichmann in Buenos Aires and brought him to Jerusalem to stand trial for genocide and crimes against humanity.
As the prosecution took the world back to Auschwitz and Treblinka, a sharp, angry voice rose out of the courtroom arguing that Israel had no right to try Mr. Eichmann, the slight, fastidious bureaucrat who had overseen the efficiency of the Nazi death camps.
It was the voice of Hannah Arendt, a Jewish philosopher who had fled Nazi Germany and found refuge in the United States. Mankind, she said, needed the proper tools to deal with the perpetrators of a future genocide. By trying him on the basis of its own territorial law, Israel was depriving the world of an internationally accepted legal interpretation of the crime of genocide.
Thirty-six years later - in the chaos of a little-known African city with few phone lines or passable roads - an international tribunal set up by the United Nations is trying to do what Ms. Arendt had pleaded for: build a body of international law on crimes against humanity.
In the wake of the 1994 genocide in nearby Rwanda - a three-month explosion of violence in which about 800,000 people, mostly ethnic Tutsis, were massacred - prosecutors, defense lawyers, and judges in Arusha, Tanzania, are interpreting the definition of genocide that came out of the London Convention in 1948 and was adopted by the Geneva Convention of 1949. The International Criminal Tribunal for Rwanda (ICTR) is expected to render its first verdict in April or May.
It will be the first time an international tribunal will find an individual guilty or innocent of genocide, the "killing or causing serious mental or bodily harm with the intent to destroy, in whole or in part, an ethnic or racial group," as defined by the Geneva Convention.
"Our judgments will detail genocide: We will provide the legal lamppost for future generations," says Kingsley Moghalu, a legal adviser for the tribunal.
None of the 22 Nazi leaders tried at Nuremberg were convicted of genocide: The definition came later. Men like Hans Frank, the murderous governor-general of occupied Poland, and Rudolf Hoss, Auschwitz's commander, were charged with crimes against peace, crimes of war and, halfway through the trials, crimes against humanity.
Ironically, the ICTR's first, momentous ruling will come in the case of Jean-Paul Akayesu, a "small fish" by the grim standards of the Rwanda genocide. The former mayor of Taba has been accused of orchestrating the slaughter of 2,000 Tutsis and charged with genocide, crimes against humanity, and rape and sexual torture.
His alleged acts, however, pale in comparison with those attributed to Theoneste Bagosora, the head of the Army during the genocide, who is also in detention in Arusha.
"Comparatively speaking, Akayesu is a nobody," says a defense lawyer in the tribunal. "But because of that, the prosecution has had to work that much harder to prove him guilty of genocide."
The lead prosecutor in Mr. Akayesu's case, Pierre Prosper, is a United States federal prosecutor. For two years now he has been collecting evidence to prove that Akayesu committed the crime of genocide.
"The key issue is not necessarily the planning but the intent," says Mr. Prosper. "We have to prove that an accused intended to destroy a group in whole or in part. The killing is the easy part. To prove intent you basically have to get into the mind of an individual. You need credible witnesses who will say, 'He told me this.'"
Prosper works out of a cubicle on the third floor of Arusha's Conference Center. A whole section of the sprawling African-style mall has been colonized by the ICTR with its 488 employees, its printers and computers, and its colossal bureaucracy. "It's vintage UN," notes an observer, "A bureaucratic nightmare from the word go."
Critics say the ICTR does not have much to show for three years of work and an eternally ballooning budget. This year alone, with 19 out of 22 detainees still waiting for their day in court and not a single judgment passed, the tribunal will drain $59 million out of UN coffers.
Rwandan officials have been especially sarcastic in their assessment of the tribunal's worth. "They believe this is an experiment being done at the expense of the Rwandan people," says Jean-Jacques Dushimiyimana, a Rwandan journalist who is covering the tribunal's work.
ICTR president, Judge Laity Kama, says the imperatives of justice are partly to blame: "We have to abide by the rules of evidence and avoid expeditious justice at all costs. The same people that are pressuring us today will accuse us tomorrow saying, 'This is what African justice amounts to.' "
Working in the ebullient chaos of Arusha, most people in the tribunal appear substantially unfazed by the criticism.
They say that by codifying legal enormities such as genocide, they are setting the stage for a permanent world court that one day will be given jurisdiction over internal atrocities of international relevance.
"History will retain the analytical work done by magistrates and not the administrative headaches of this tribunal," says Pascal Besnier, a defense lawyer with the ICTR. "There is a sense here that we are working for the betterment of humanism."
Observers such as Betty Murungi, a Nairobi-based lawyer with the Coalition for an International Criminal Tribunal - which is pushing for the establishment of a permanent world court - are not as enthusiastic. "The Akayesu ruling will be a fairly momentous one, but let us not imagine for one minute that it will affect international law to such a vast extent. Akayesu will not constitute the perfect precedent," she says. The witnesses produced by the prosecution were not the most credible, she explains, because the tribunal could not guarantee their safety.
"What this will do is send the message that genocide is not acceptable and hopefully expedite the establishment of an international tribunal," Ms. Murungi adds.
Observers say the interpretation of genocide that will come out of Arusha will also have a direct impact on the work of the Criminal Tribunal for the Former Yugoslavia.
The court in The Hague is also seeking indictments for genocide. But many say that while there were "genocidal acts" in the Bosnian war - the mass graves in the enclave of Srebrenica being the most obvious example - genocide was not a predominant aspect of the conflict in the Balkans.
"I think a legal distinction will be made in that regard," says another legal adviser for the ICTR. "There is no question that what happened in Rwanda was genocide. What happened in Bosnia seems to fit more under the category of war crimes. I think lessons will be drawn from what happens here."
What Is Genocide?
Genocide is the "killing or causing serious mental or bodily harm with the intent to destroy, in whole or in part, an ethnic or racial group," as defined by the Geneva Convention.
The term was first coined in 1944 to describe the extermination campaigns of the Nazis during World War II. Polish jurist Raphael Lemkin - whose family was killed during the Holocaust - is credited with coming up with the word in his book "Axis Rule in Occupied Europe." Mr. Lemkin lobbied for an international agreement barring such state-sponsored actions.
On Dec. 9, 1948, the United Nations General Assembly unanimously adopted the Convention on the Prevention and Punishment of the Crime of Genocide - the first multilateral human rights treaty proposed by the UN for ratification. By the 1990s, it had been ratified by more than 100 nations, including the United States.
Sources: Webster's New International Dictionary and The Encyclopedia Americana