AFRICANEWS

Rwanda

Retribution or Restoration for Rwanda?

Human Rights

In mid November 1997, the writer attended sessions of the International Criminal Tribunal for Rwanda (ICTR) being held in Arusha, northern Tanzania. In this article he argues, in the main, that because the ICTR is founded on a retributive "paradigm" of justice, it is unable to foster genuine reconciliation in the central African nation.

The International Criminal Tribunal for Rwanda (ICTR) is being held in Arusha, Tanzania. For security reasons the identity of witnesses are concealed. Though it is impossible to see the witness from the public gallery, it is easy to imagine the reality socially constructed around him: he is mushroomed by men and women of all colours dressed in western legal attire; the scene is placid and formal; and perhaps the witness is seeing the accused people Clement Kayishema and Obed Ruzindana for the first time since their alleged acts of darkness of 1994. There is very little the witness, and quite possibly a victim of the genocide, can identify with: it is a trial in a foreign world.

This is not kind of world where the witness/victim can lament, weep and hope to embark on a journey of recovery. The ICTR only seeks to balance the scale, as it were. Moreover, the witness is more on trial than the accused: His story must be consistent with that which he told the investigators lest he provides the defense lawyers with badly needed ammunition; he has to restrict himself to what he saw and heard, not what he felt or surmised for that is how the law works. My premise is that the Arusha tribunal has little potential in terms of advancing reconciliation in Rwanda.

Suffice it to say that the retributive understanding of crime and justice, upon which the ICTR is founded, is discordant with the world view of many African communities. To emphasise retribution is the surest way to poison the seeds of reconciliation. If anything, retribution turns offenders into heroes, re-victimizes the victims and fertilizes the circle of violence.

Howard Zehr has written an insightful book, Changing Lenses, in which he identifies and evaluates the assumptions we make about crime and justice in the heavily pro-punishment judicial systems. In the main he raises the following questions about the retributive model of justice:

Is crime merely a violation of the state and its laws or is it essentially a violation of people and relationships?;

Should justice focus on establishing guilt or should it focus on identifying needs and obligations?;

Should we aim to mete out doses of pain as punishment to the guilty or should we aim to see things made right?;

Should we seek justice through a conflict of adversaries in which the offender is pitted against the state or ought we encourage dialogue and mutual understanding giving victims and offenders central roles?; and

Should the rules and intentions outweigh outcomes or should we judge the efficacy of our justice system by the extend to which responsibilities are assumed, needs are met and healing of individuals and relationships is encouraged.?

Many Africans would not find anything particularly novel about Zehr's restorative "lenses" since offenders in most African cultures were held responsible to settle the breach in relationship with the victim. At the heart of most African traditional justice systems was the need to re-integrate both the offender and victim into society. Unfortunately, Africans are now zealous disciples of the Western justice model that alienates the victims and offenders from society. In this regard, the intangible international community suddenly becomes the victim; the real victims of the genocide are turned into spectators.

Will the Arusha court help those they find guilty identify needs and obligations? Will it encourage the guilty to try and make things right? If Messrs. Kayishema and Ruzindana were to be found guilty their likely reaction as they get their punishment will be to rationalize their actions and focus on themselves.

Through the "due process," the witness/victim has to relive the event unsupported. I would imagine that the real details are never told to the court for the victim can only tell the court what he can find words for, or what is relevant to the case. And, of course, it is not for him to decide what chunk of his story is relevant. It is not even decided by people he knows. What is "admissible" is the prerogative of the learned friends.

Instead of salvaging the weak links of relationships to bolster reconciliation, the court process heightens adversary. The story of the victim is appropriated, sometimes mutilated. I imagine the witness/victim leaves the courtroom bitter, dejected, humiliated. The space is not provided for the witness/victim to own the story, to even understand himself in order to embark on the path of recovery. Owning the story, psychologists tell us, is an integral part of the healing process.

And there are questions to which the victim badly needs answers, in the absence of which he will conjure up his own. For instance the witness/victim badly needs and wants to know why particularly his wife, father, daughter, to mention a few, were maimed or killed. Answers to such questions which are vital in the healing process are not the kind of stuff the tribunal deals with. Once the guilty are incarcerated, or acquitted, the victims will have to live with fundamental questions unanswered. They have to nurse their scars in the manner they deem fit. Only God knows how.

At the end of the day the success of the tribunal will be determined, not by how much healing has taken place in the central African nation, but by how fast cases would have been gone through the ICTR mill. I should hasten to say that offenders have needs too which ought to be addressed, but not at the expense of those of the victims.

While I have respect for history, I believe that a fixation with the past will not foster a healthy future for Rwanda. The trial is stubbornly focused on the past. In this respect, it is potentially unable to advance a future peace-building cause. The South Africa's Truth and Reconciliation Commission (TRC) seems more focused on the future so that the dark history illuminates the present and guides the future. My impression is that, in spirit and structure, the ICTR does well to focus on the past but it whirls there.

I am inclined to believe that the Arusha tribunal is a pretentious exercise on the part of the international community to purge itself the shame of not expeditiously intervening in the Rwanda conflict and to nurse its metaphysical guilt, for remaining aloof when a people was threatened in real terms with extermination. I was hardly surprised when under cross examination one witness burst out: "Honourable president... and everyone...Tutsis died in full view of the international community...no one came to help us."

One might even question the timing of the tribunal. While things are just assuming a semblance of stability, the UN would perhaps have done more to help in social reconstruction and peace-building in Rwanda than financing a tribunal thousands of miles from Rwanda's soil.

The Truth and Reconciliation Commission in South Africa, despite its apparent lack of a comprehensive recovery program for apartheid victims, and occasional theatrics, serves as a more assured path for restoration of relationships and the peace of posterity.

By defining guilt in the technical sense and meting out punishment on the selected individuals, the ICTR may well send out the opposite message to what it desires. As Zehr points out:

Studies of capital punishment have failed to find evidence that the death penalty deters. Some evidence shows that the example of the death penalty actually causes some people to kill. Apparently the message potential offenders receive is not that killing is wrong, but that those who wrong us deserve to die.(emphasis added)

So, when the curtains close on Arusha what message shall be sent out? Or better still, what message shall be received?

Psychologist have already warned on how easy it is for victims to turn into violaters. I venture to say that there are many in Rwanda now who are even blaming themselves for being alive after their relatives, friends, beloved ones lost their lives in their presence. The potential for such people turning to suicide or homicide is real. And the international community would be doing Rwanda more good by supporting the country in creating the space to heal the wounds of the genocide within Rwandan soil than mounting a detached judicial experiment in a foreign country.

I believe that whatever happened in Rwanda in 1994 gives the people of that nation the opportunity to give the world a human face. Much as there may be deep suspicion which is indeed part of the healing process the people in Rwanda have the capacity to walk the path of renaissance.

I have no illusion that the search for justice can lead us to genuine reconciliation. My contention is that other elements of reconciliation like truth, repentance, forgiveness and mercy are hardly considered in the ICTR. I would have wished to see a forum where, like the South African TRC, suspects are first given the chance to own up for their crimes and ask for forgiveness. I would have liked to see the perpetrators of the acts of darkness make a gesture of repentance towards the victims first and then to the state. In other words, I would have liked to see a forum that would create space for the re-integration of offenders and victims in the Rwanda society. The ultimate test of reconciliation would be how healthy the living relate to each other, to the ancestors, to the unborn and, above all, to God.

The time to rid ourselves the superstition of retribution is now. Meanwhile, I hold the ICTR forum suspect as far as building pillars to sustain reconciliation in Rwanda is concerned.

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