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168 17 Giving and Taking Back What we are trying to do is contribute to peace and reconciliation. The ICTR can do something that a national system cannot: establish a historical memory of what happened. Judge Gabrielle Kirk MacDonald, interview, June 11, 1998 The entire staff is there solely to assist the judges in the trials and with the judgments. And not for any other reason. Not for peace. Not so that Hutus and Tutsis get along. Not for any of that; it is a tribunal. Judge Lennart Aspegren, interview, April 16, 1998 On December 31, 2004, the ICTR prosecutor officially closed the genocide investigations. The decision was not his. It was imposed on him by the countries that had created the court and were financially supporting it. According to President Pillay’s projections in 2001, if Carla del Ponte had been given free rein to implement her work plan, the trials would have lasted until 2021. The states firmly indicated that this was utterly unreasonable. They demanded that the trials be completed by 2008 and the appeals procedures by 2010. The same deadlines were imposed on the tribunal for the former Yugoslavia in The Hague. The deadline was never met. Initially given a four-year mandate, the ICTR will have lasted for approximately twenty years by the time it closes down, in 2013 at the earliest. Since its inception, it has tried forty-five individuals . Seventeen were sentenced to life in prison; nine others were sentenced to twenty-five years or more. Eleven, including nine who pled guilty, received between six and twenty years. Eight were acquitted.1 In December 2009 the trials of twenty-nine additional accused were in progress or pending. Eleven  fugitives were still at large. In all likelihood, only a few of them will be arrested. To have completed all appeals by 2010, the court would have had to try twice as many people as it had since it was established, in one-third the amount of time. To no one’s surprise, it failed to meet that deadline. The conditions for closing up the Arusha-based tribunal remain uncertain. But the length of its existence and that of the ICTY is already unprecedented (the Nuremberg trials were spread over only four years).2 With a total of ninety individuals indicted, the Arusha-based tribunal represents a symbolic justice that was supposed to formally mark the community of nations’ refusal to allow the crime to go unpunished and its primary perpetrators to have a say in the political debate. It was also symbolic in its selective prosecution of prominent suspects and key groups (the military, politicians, the media, etc.). In Rwanda, with tens of thousands of suspects in prison since 1994, the courts wanted to ensure that there was also mass justice. Symbolic justice and mass justice normally fall within a limited time frame. By being spread out over fifteen to twenty years, the two forms of justice rendered in both Arusha and in Rwandan courts have not only departed from what was envisioned in 1994, but their very purpose has also changed. The year 2002 was a turning point in the quest for justice following the genocide. In Arusha, the Rusatira case and the suspension of the investigations into the RPF dealt a fatal blow to the tribunal’s moral function and marked its forced entry into the era of “realjustice” (analogous to the concept of realpolitik). Since that time, the tribunal’s strategic direction has been dictated by its completion deadline. Its priorities and legal proceedings are no longer dominated by the moral duty and the political need to meet an urgent demand for justice. They are governed by administrative requirements—the prosaic need to process pending cases within a fixed period of time. There are no longer any expectations of a historic nature. Rather, it is simply a matter of planning for the institution’s closure. That same year in Rwanda, genocide trials in the national courts began to slow at first and eventually stopped altogether for at least ten months in 2004.3 This slowdown, followed by the temporary suspension of the judicial process, was initially intended to allow the so-called gacaca courts to get off the ground across the country. The government had decided to set up these community courts three years earlier in response to the 130,000-some suspects still in prison awaiting trial. Between 1997 and 2002 approximately 9,000 Rwandans were brought to trial...

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