Genocide: Past, present and future
Drew White is a Canadian Lawyer who prosecuted the perpetrators of the Rwandan
Genocide in 1994. He attended Kwibuka, the 27th commemoration of the
Rwandan Genocide in Auckland, where he was able to join the Rwandan Community and
other invited individuals and representatives of various organizations linked to African
communities based in Aotearoa-New Zealand.
ACOFI’s Secretary General, Henok RG took the opportunity to interview him about his experience of the Rwandan genocide trial and discuss the possible Genocide that looks looming out of the ongoing conflicts and wars in parts of Africa.
What makes a genocide trial different and challenging than other legal court business?
Some of the main differences are that first, genocide is an old act but a ‘new’ crime. There is very little judicial precedent to follow. Although genocide was first made a crime through the United Nations Genocide Convention in 1948, it took another 50 years before the first conviction, in 1998, which
happened at the Rwanda Tribunal.
Second, the entire purpose of genocide is to destroy a group, leaving none to tell the story, so
the vast number of victims with so few left, the ongoing suffering of survivors, the profusion
of perpetrators and the challenges of locating and producing witnesses to the crime makes the
prosecution of genocide trials lengthy and uncertain in outcome.
Third, genocide trials are procedurally elaborate, partly because with so little judicial
precedent there are a lot of issues that arise and that have not been fully settled, unlike in
national jurisdictions where the criminal trial procedures have become very settled over time.
Fourth, genocide trials are factually very complicated. This is partly because the evidentiary
context in which the crime takes place is enormous. For example in the 1994 Rwanda
genocide against the Tutsis the context was a whole country for a whole year.
Why has the word “genocide” become such a controversial term to apply in to various
atrocities happening to human race in parts of the world?
Governments are generally very cautious about describing an event as genocide because
calling it genocide carries a legal obligation to do something about it. More than three-
quarters of the countries in the world have agreed to the terms of the Genocide Convention,
so most countries have an interest in dealing with the question of genocide as part of a
diplomatic process, rather than as part of a system of international justice.
What are the fundamental lessons the world has to learn from the Rwandan genocide of
Humanity has many lessons to be learned from the long history of genocide against the
Tutsi in Rwanda. A few that have become the most memorable for me are:
- Even after the killing subsides, genocide ideology continues to destroy.
- The human spirit is capable of an amazing resilience, especially in facing a shared
experience of tragedy.
- When influential people in positions of authority use lies to create fear and division in
citizens, ordinary people can become capable of doing great harm.
- If there is enough political will, it is possible to succeed in building a system of
international justice to bring accountability and fight impunity.
- The United Nations requires organisational reform in order to respond to international
crime more effectively.
How closely have you been observing the current crisis in Ethiopia and Myanmar? And
how identical are the two countries in terms of military involvement, Nobel peace prize
winning leaders, and crackdown on press and opposition groups?
Although there are some similar features to the situations in both countries, the fact that
one crisis is driven by a coup against the government and the other is driven by the
government itself, makes a significant difference to who might be held legally responsible.
Of course, both political leaders are Nobel laureates and have disappointed the world, for
which they might face political accountability, but that will have no bearing on any potential
legal accountability. Repression against press and human rights defenders and political
opponents is an extremely serious violation and abuse of human rights, which has become a
patterned, standard, common tactic by regimes that are struggling to exert control over the
free choice of citizens.
How difficult would it be to conduct a research and prosecution on a call of genocide in a
certain country when the Security Council of the UN fails to address the crisis fast enough
and pave the way for ICC to go on legal probe?
The level of difficulty will depend on the country involved and whether that country is a
party to the ICC statute. If the country involved is a party to the 1998 Rome Statute that
authorizes the ICC to act, then investigation and prosecution is the responsibility of the ICC,
without involving the Security Council. On the other hand, if the country is not a party to the
ICC statute, then the responsibility is left with the Security Council to choose whether to refer
the case to the ICC for investigation, or even to create a separate ad hoc tribunal for the case,
such as it did for Rwanda and for the former Yugoslavia. In the absence of action by either
the ICC or the Security Council, recently the Human Rights Council has been authorizing
investigations under their human rights protection mandate, but those investigations are
without any authority to prosecute, so they simply archive the evidence for possible use later.
How would a prosecutor treat a third-party intervention as a perpetrator in a
neighbouring country? For example: Eritrean soldiers active engagement in the war crime
they have involved in support of the Ethiopian government?
In general, it is not the nationality of a perpetrator but the nation where the crime is
perpetrated that is the key issue for a prosecutor. This is because the first question will always
be whether the prosecutor has legal authority, referred to as ‘jurisdiction’, to prosecute the
crime. In other words, it won’t matter if the perpetrator is Ethiopian, Eritrean, Egyptian or
Estonian, if it is a crime that takes place within a territory that a prosecutor has jurisdiction
for. More specifically, cross-border perpetrators are still perpetrators under international law,
even if there might be no jurisdiction to actually prosecute them.
One of the important distinctions under international law is whether the armed conflict is
determined to be an “international armed conflict” (as between two nations) or a “non-
international armed conflict” (as between groups within a territorial state). This distinction
affects the type of law that applies and the availability of jurisdiction to prosecute.
In the situation of Eritrean forces supporting Ethiopian government forces, this has the
hallmark of a non-international armed conflict, with the result that the legal protection for
civilians will be more limited and more difficult to enforce. However, it does not mean that
cross-border support is not legally accountable.
One of the notable features of the conflict is that both the Ethiopian and Eritrean governments
appear to have publicly acknowledged that Eritrean forces participated against Tigray. Therefore, the Eritrean president could potentially be held extra-territorially responsible for
any criminal acts of the soldiers, just as President Charles Taylor of Liberia was held
responsible for “aiding and abetting” crimes in Sierra Leone.