A DISCUSSION OF LAW AND JOURNALISM

Tanzania

Judgment Day

ICTR

By Halina Schiffman-Shilo

“There will be no humanity without forgiveness. There will be no forgiveness without justice. But justice will be impossible without humanity.”

-Yolande Mukagasana. Inscribed in the Kigali Genocide Memorial Centre

On December 20, the ICTR delivered its last judgment. Augustin Ngirabatware, indicted in 1999 for his alleged role in the Rwandan genocide, was found guilty of genocide, direct and public incitement to genocide, and rape by Trial Chamber II. He was sentenced to 35 years imprisonment.

Since our arrival in August, those of us interns designated to Chambers worked almost exclusively on the Ngirabatware case. We reviewed the files, discussed (and at times argued) its legal and factual points, and even visited some places in Rwanda where crimes particular to this case were committed. In short, we spent the last four months living and breathing Ngirabatware.

And on judgment day, we were in the courtroom.

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Piki-in’ All Over The World

Piki-piki

By Halina Schiffman-Shilo

Called piki-pikis in Tanzania, motos in Rwanda, and boda-bodas in Uganda, these low-grade motorcycles are to East Africa what the yellow-cab is to New York City: ubiquitous. Driven by men of all ages and levels of sobriety, the piki-piki is by far the fastest way to get around. It’s also the most dangerous.

Piki-piki drivers do not seem to be hampered by fear – or traffic laws. Carrying people, lumber, gas canisters, household goods, animals (I even saw a dead boar tied to the back of one once), piki-pikis navigate through roads filled with cars, trucks, pedestrians, bicycles, dalla-dallas, makeshift rickshaws, and the occasional goat, without even breaking a sweat. That is, until they crash. In Arusha, there is a whole hospital wing, lovingly nick-named the “warda-warda,” to treat piki-piki injuries.

And yet, it’s a terrifically popular means of transportation. Exhilarating, frightening, and a touch addictive, riding on the back of one looks cool, too.  Just remember to hold on tight, and remember not to mention it to your travel insurance company, or your family.

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A Cross-Border Affair

DRC

By Halina Schiffman-Shilo

In late October, I stood exactly 2.5 kilometers away from Goma.

A few friends and I had gone to Rwanda to see the countryside and visit some of the places we had read about in the Ngirabatware case we are working on.  A couple of long bus rides and two powerful genocide memorials in Butare and Kigali later, we left central Rwanda and headed north to Gisenyi. We wanted to spend some time relaxing and hiking around Lake Kivu before continuing on to Uganda.

Rwanda is aptly known as “Le Pays des Mille Collines,” the “Land of a Thousand Hills.” Everywhere I looked there were lush, explosively green hills, some terraced with banana and bean plantations and others simply untouched. Our ride to Gisenyi on winding, hilly roads, was absolutely spectacular, if a little nausea-inducing. But for the lack of dinosaurs, the landscape looked like it came straight out of Jurassic Park.

We arrived at night and, silently, took in the starlight shimmering off the waters of Lake Kivu. How could such an overwhelmingly beautiful place have been a dumping ground for so many dead bodies during the genocide?

The next morning we set out walking along a network of trails that weave through farmland on a ridge of hills. We had crystal clear views of Lake Kivu, Gisenyi town, and Goma. Along the way, we imagined what would happen if we accidentally crossed into the Democratic Republic of Congo (DRC). Though we knew that wandering into the DRC was highly unlikely, we weren’t exactly sure of where we were, so we weren’t ready to toss an accidental border crossing into the realm of impossibilities. With the help of a local farmer, we stayed safely in Rwanda and eventually found a tar road leading into town.

On the way we reached a crossroads — one sign pointed in the direction of the DRC border crossing, only 2.5 kilometers away, while another pointed in the opposite direction towards the Bralirwa brewery. We weighed our options. In the end, we decided that despite the strong travel-cred we’d accrue for venturing to the border, heading back to our lodge for a cold beer was the prudent, if less exciting, choice. And so we did.

On November 20, the M23 rebels, a group of soldiers who defected from the Congolese army in April, took control of Goma. Shots flew into Gisenyi and Rwanda returned the fire.

Another group of interns were there, in Gisenyi, when the shelling began. They had to run for cover while waiting at the bus rank to return to Kigali. Though the rebels have now retreated from Goma, news sources have reported that more than 60 people have died and at least 300,000 have been displaced due to rebel activity.

The DRC emerged from a civil war in 2003, but the eastern region surrounding Goma has remained a hot bed of militant activity and violence, in part because it is rich in natural resources. It’s widely believed that Rwanda, and to a lesser degree Uganda, are arming and supporting the M23 in the hopes of gaining control of the natural resources in the area. We interns speculated whether the M23 purposely shot into Rwanda to enable the country to invoke her right to self-defense and use of proportionate force, both enshrined in international law, to fire back into the Congo and possibly help the rebels.

With all the recent talk of arming the Syrian opposition, and recalling the 2011 UN-sanctioned action in Libya, I wondered whether it was legal for Rwanda and Uganda to support the M23. And on a more meta-level, I wondered when material international support for any insurgency was legal.

Western media wasn’t reporting on the legal issues, so with the splendor of Rwanda fresh in my mind, (and the fear of what could happen if the situation were not quickly pacified), I got down to business and did some research.

Is it legal for Rwanda and Uganda to support the M23?  The answer is an easy “no”. The arms embargo against the DRC established by the UN Security Council in 2003 has been continually reaffirmed and was recently extended until February 1, 2014. In addition, per Article 25 of the UN Charter, Security Council resolutions are binding on all member-states. Because Rwanda and Uganda are both UN member-states, they are obligated to respect the Security Council Resolution regarding arms trading with the DRC — the language of the Resolution reflects this obligation.

And when is international support for an insurgency legal? The answer to this question is a little more nuanced. Under international law, it is generally prohibited for one state to meddle in the internal affairs of another state. However, the Security Council is empowered under Chapter VII of the UN Charter to call on member states to use military force in a conflict when international peace and security is threatened. The Security Council has invoked its Chapter VII powers for both internal and international conflicts. In addition to Libya, these powers have been called upon, for example, in Bosnia and Herzegovina, Afghanistan, and Iraq.  To date, it has not done so in Syria.

In short, the Security Council needs to pass a resolution in order for military intervention, including UN peacekeeping missions, to be legal.

Though home to the largest UN peacekeeping mission on the planet, the Security Council has not passed a resolution allowing multilateral intervention in the DRC conflict, so by supporting the M23, Rwanda and Uganda are breaking the law in this regard, as well.

So, what’s the punishment for these treaty-breaching, obligation-shunning, rule-breaking states? It’s unclear – no state has taken any steps to force legal compliance. But that doesn’t mean the culprits are off the hook.

At times, politics and money speak louder than law, and over the past few months, Britain, the US, and other countries have suspended aid money to Rwanda. For the time being, Rwanda doesn’t seem fazed, but it may feel the pinch soon. Perhaps then Rwanda will take a time-out, and reassess whether its cross-border affair is worth the consequences.

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A Special Day in Arusha

Owuor carries her newly born twin boys named after Obama and Romney in Siaya

By Halina Schiffman-Shilo

Jumping out of bed before the alarm sounded, I caught a beautiful view of the sun rising over the hills. I usually lie in bed until the very last minute, trying to eke out every second of slumber I can before facing the day.  But this morning was different.

I wondered if I usually slept through this kelele, or if it was louder than usual, but had the feeling that the chickens were clucking rather vigorously, and I thought I could hear people hollering loudly, too. My neighborhood, or rather, my neighborhood bars, are colorful places at all times of day, even at sunrise, so I should not have been surprised. But in my early morning fog, I took all these sounds to be a “sign.”

By the time my alarm went off at 6:04am, I was already racing to throw on my running clothes. I had planned my morning the night before. Get up and jog, come home, shower, get dressed for work, and then head to town with my roommates. It seemed like a good plan the night before, but in the morning I realized it wouldn’t do—I was just too excited for the day. I could skip showering, shorten my usual run, and head straight to town to meet my friends at one of the hotels that shows American news. Sure, I’d be sweaty, but it was worth it.

Today was, in Tanzania time, Wednesday November 7, and back home, in Eastern Standard Time, it was eight hours earlier.

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Justice Delayed

ICTR

By Halina Schiffman-Shilo

Last week, judges from the ICTR Appeals Court in The Hague flew to Arusha to deliver the judgment in the Gatete appeals case.

The gallery was packed. We interns nearly filled the first row, chatting and adjusting our headsets to the right language channel—proceedings are simultaneously translated into French and English—before the proceedings began. Along the back row sat former alleged genocidaires, men who were acquitted at earlier trials and were present at the hearing to support their friend who was still on trial. The lead defense attorney came into the gallery and greeted each man warmly, inquiring after their families. The freed men nodded to the accused in a show of solidarity as he was sitting in the courtroom, awaiting judgment.

In 1993,  Jean-Baptiste Gatete was the mayor of Murambi Commune and a member of the MRND, the party of assassinated Rwandan President Juvenal Habyarimana. He was accused of organizing and arming the Interahamwe to attack and kill Tutsis. Apprehended in the Republic of Congo in 2002, he was brought to Arusha to await trial, a trial that didn’t begin until 2009.

Last year, Mr. Gatete was found guilty of genocide and of extermination as a crime against humanity. He was sentenced to life in prison. He was then 58 years old.

Mr. Gatete is a seemingly humble man of average height. At the Appeals hearing, he gave a brief and solemn statement, thanking his wife and remembering the many Tutsi who were murdered. I don’t know what I imagined a genocidaire to look like, but to me, he looked like an ordinary elderly man, someone you’d give up your seat for on the subway. After his statement, he sat down and smiled at his wife and friends in the gallery.

Amongst the many counts Mr. Gatete was challenging, the Appeals Chamber granted only one: his right to trial without undue delay.

The Appeals Court found “that the extent of pre-trial delay disproportionately exceeded the time reasonable….and constitute[d] prejudice.” Though the ICTR has rules dictating the rights of detainees, Mr. Gatete was still confined in a small room with few liberties for seven years before trial even began.

Yes, at trial Mr. Gatete was found guilty and his guilt was affirmed by the Appeals Court. But for the seven years he spent in pre-trial detention, he was, or should have been, presumed innocent.

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