From the ICTR to the ICC: Sobering Up on Justice

We all should agree that there can be no lasting peace without justice. However, we should also be sober about what criminal proceedings can achieve. Criminal justice is only one piece of the puzzle.
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Twenty years ago the international community failed to prevent and thereafter to stop the killing of over half a million Tutsi and moderate Hutu in Rwanda. Stung by shame, the United Nations Security Council established the International Criminal Tribunal for Rwanda (ICTR), delivering a chance for justice.

In resolution S/RES/955 (1994) establishing the ICTR, the members of the Security Council expressed their conviction that the prosecution of persons responsible for serious violations of international humanitarian law would contribute to the process of national reconciliation and to the restoration and maintenance of peace in Rwanda.

The establishment of the ICTR and the International Criminal Tribunal for the former Yugoslavia (ICTY) revived the momentum to create a permanent international court to investigate and prosecute the worst crimes of concern to the international community as a whole. This was achieved in 1998, when states met in Rome and adopted the Rome Statute of the International Criminal Court (ICC). The aspirations were high - "to put an end to impunity for the perpetrators of [atrocity] crimes and thus to contribute to the prevention of such crimes" (Preamble of the Rome Statute). And, similar to the expectations for the ICTR and the ICTY, States Parties, as well as states not party the Rome Statute, have expressed their conviction that the ICC contributes to peace and reconciliation in numerous resolutions since the entry into force of the Statute in 2002.

The relationship between Rwanda and the ICTR has been full of challenges. While the tribunal was established upon Rwanda's request, Rwanda - then a member of the Council - in the end voted against the tribunal, as it fell short of Rwanda's expectations. However, while Rwanda continues to criticize certain aspects of the tribunal's work, it has also praised the ICTR's work in ensuring accountability for the most serious crimes in statements delivered in the Council on this topic, and has said it "has largely been able to render justice to the people of Rwanda and to humankind" (UN Doc. S/PV.6888).

While being outspoken on accountability for international crimes, Rwanda has not joined the Rome Statute, and, like some other non-States Parties, it has openly expressed its discontent with the ICC. In one of its most recent statements in the UN Security Council, where it is currently a member, Rwanda declared:

"(...) we don't believe, as we stated on many occasions in this Council, that the International Criminal Court (ICC), which is a politicized court that has so far exclusively targeted Africans, could anyhow contribute to the rule of law in our countries. In any case, it is difficult to argue that the ICC has strengthened the fight against impunity for the most serious crimes, while it has issued only one judgment in twelve years."

The ICC is not the only tribunal to receive criticism. The ICTR itself -- now entering its closing phase and seen as a valuable and important institution -- had a rocky start and faced criticisms similar to those now raised in relation to the ICC, such as high running costs, lengthy trials and the relatively small number of cases it has handled. However, the ICC's mandate is far broader than that of the ICTR -- while the ICTR's prosecutors were investigating crimes committed from January 1 to December 31, 1994, in relation to the Rwandan genocide, 21 cases in eight different countries have been brought before the ICC, with over 5000 victims participating in the proceedings. For the most part, these situations have been referred to the ICC by States themselves.

The history of the ICTR and ICTY clearly shows that international justice takes time and should be seen as part of a broader framework that includes national proceedings. The ICC is the court of last resort, stepping in only when a country itself is unwilling or unable genuinely to carry out the investigation or prosecution. But, considering the mass scale of international crimes, any international court by default will not be in a position to bring all perpetrators to account. It is therefore crucial that States strengthen their national capacity to investigate and prosecute atrocity crimes. This applies not only to states where crimes have already taken place, but should become a goal shared by all of us.

We all should agree that there can be no lasting peace without justice. However, we should also be sober about what criminal proceedings can achieve. Criminal justice is only one piece of the puzzle. Trials alone are not enough to bring peace: institution building, education and economic development are also crucial in promoting lasting peace and reconciliation in post-conflict societies. Acknowledging the painful suffering of victims has to be accompanied by national and international assistance and rehabilitation of victims, as States recognized when they created the ICC's Trust Fund for Victims under the Rome Statute. While we have to be sober about what an international criminal court can achieve, it is clear that we should work on strengthening accountability for the sake of victims of atrocity crimes and for the sake of deterring these crimes in the future.

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