Victor's justice revisited: Rwandan patriotic front crimes and the prosecutorial endgame at the ICTR

Founded on the principle that all victims of atrocity have a right to justice, contemporary international war crimes tribunals are mandated to prosecute individual suspects from all sides of an armed conflict. This mandate sets these institutions apart from the victor's justice paradigm of the Allied- run Nuremberg and Tokyo military tribunals. Today's tribunals, of course, are different from those of Nuremberg and Tokyo because they are not operated by the winners of particular armed conflicts. But this difference does not immunize today's tribunals from being effectively controlled by the winning side. A victorious state may, on its own or in conjunction with international allies, thwart a tribunal's prosecution of the state's atrocities. Whereas the Yugoslavia and Sierra Leone tribunals have sought prosecutions from all sides, the Rwanda tribunal has not. As the International Criminal Tribunal for Rwanda (ICTR) nears the end of its mandate, it has yet to indict a single Rwandan Patriotic Front (RPF) suspect implicated in the nongenocidal massacres of Hutu civilians in 1994. If moving beyond victor's justice is so fundamental, why has this not occurred at the ICTR Specifically, why have successive ICTR chief prosecutors not indicted RPF suspects? Answering these questions requires addressing the political and legal factors that have shaped the decision of the ICTR prosecutors to forgo targeting RPF suspects. While none of the four ICTR chief prosecutors has issued RPF indictments, each one has approached the RPF question differently. This chapter pays particular attention to the different approaches of three prosecutors and their relationship with the RPF- led government. The first prosecutor, Richard Goldstone (1994-96), focused on securing the cooperation of a testy Rwandan government and avoided opening the volatile issue of investigating the RPF. Carla Del Ponte's tenure at the ICTR (1999-2003) was marked by her vocal and ultimately unsuccessful confrontation with Kigali over her bid to investigate RPF crimes. Hassan Jallow's tenure (2003-present) has been markedly conciliatory toward the Rwandan government. Initially, Jallow was largely silent on the RPF issue, refusing to say whether he would issue RPF indictments. In 2008 he reached an "understanding" with the Rwandan government to forgo tribunal indictments if it conducted a fair trial of RPF suspects who had been under ICTR investigation (Jallow 2008, 11). In seeking an arrangement that suited the interests of the Rwandan government, Jallow has sought to avoid becoming the target of Kigali's wrath and to avert the political crisis that might arise if he tried to prosecute the RPF. At fi rst glance, Jallow's approach appears to resemble the International Criminal Court's (ICC) notion of complementarity in which it prosecutes only if a domestic legal system is unable or unwilling to do so. However, Jallow has abdicated the ICTR's responsibility to ensure that individuals from all sides of the Rwandan conflict face international trial for violations of international humanitarian law. Moving beyond the victor's justice paradigm at the ICTR proved particularly difficult because of the strategic opposition of the Rwandan government. This opposition has been bolstered by three factors. First, the Tutsi- led RPF government has garnered significant international backing for its self- declared status as representative and rescuer of Tutsi victims of the 1994 genocide. Second, the government has likened calls for RPF prosecutions to genocide denial and genocide ideology (Article 19 2009; HRW 2008, 92). Finally, the government has intimidated the tribunal by blocking prosecution witnesses from testifying in genocide trials.