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ABSTRACT
International criminal tribunals and courts, such as the International Criminal Tribunal for Rwanda (ICTR), are commonly understood within the legal transitional justice scholarship as the primary response to mass human rights violations. Tribunals and courts are expected to address the issue of impunity, but also uncover the truth of what happened and why. The legal scholarship often understands the ICTR as able to produce a collective legal memory of the atrocities through the memories of witnesses. Using the ICTR as a case study, the aim of this conceptually led article is to respond to these discussions by exploring the potential role ICTR archival material can have in extending our understanding of the construction of memory at international criminal courts and tribunals. The article uses insights from discourse studies, specifically based on the work of French philosopher Michel Foucault. It applies these insights to an exploratory analysis of legal documents relating to the selection of witnesses from the ICTR archive and interview transcripts with ICTR personnel from the archive of the University of Washington (UoW). This exploration suggests that the pre-trial stage shape, edit and restrict in significant ways, determining which individuals can be witnesses and what these witnesses can remember.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes on contributor
Benjamin Thorne is a interdisciplinary academic who has recently completed his Economic and Social Research Council funded PhD in Law Studies at the University of Sussex. His research interests are situated at the intersection of socio-legal studies, transitional justice, and critical theory. Currently, a major research thematic for him is memory and transitional justice, particularly drawing upon insights from critical theory, Giorgio Agamben; Paul Ricoeur; Emmanuel Levinas and Michel Foucault, as a lens through which to explore empirical issues during periods post-conflict transition. Previously, Benjamin was a Visiting Researcher (January – August 2018) at University of Oxford Centre for Socio-Legal Studies.
Notes
1 Michel Foucault, The Archaeology of Knowledge: And the Discourse on Language (University of Michigan: Pantheon Books, 1972).
2 Ibid., 1972.
3 Ibid., 1972.
4 , Dermot Groome, ‘The Right to Truth in the Fight against Impunity’, Berkeley Journal of International Law 29 (1): 175 (2011); Melanie Klinkner, M., Ellie Smith., ‘The Right to Truth, Appropriate Forum and the International Criminal Court’, in N. Szablewska, and S.-D. Bachmann, eds., Current Issues in Transitional Justice: Towards a More Holistic Approach, Springer Series in Transitional Justice (Springer International Publishing, Cham), 3–29; Mark Osiel, Mass Atrocity, Collective Memory, and the Law (New Brunswick: Routledge, 2000).
5 Klinkner, Smith, ‘The Right to Truth’, 3–30; Osiel, Mass Atrocity Collective Memory, 2.
6 Mark J. Findlay and Ralph Henham, Transforming International Criminal Justice (Taylor & Francis, 2005); Claire Garbett, ‘The Truth and the Trial: Victim Participation, Restorative Justice, and the International Criminal Court’, Contemporary Justice Review 16, no. 2 (2013): 193–213; Nancy Amoury Combs, Guilty Pleas in International Criminal Law: Constructing a Restorative Justice Approach (Stanford University Press, 2007); Klinkner, Smith, ‘The Right to Truth’, 3–30; Sara Kendal, ‘Beyond the Restorative Turn: The Limits of Legal Humanitarianism’, (2015): 352–6.
7 Kendal, ‘Beyond Restorative Justice, 357–9.
8 For critical discussions on international criminal law see Megret (2018a); Schwöbel-Patel (2016).
9 Julia Viebach, ‘The Evidence of What Cannot Be Heard: Reading Trauma into and Testimony against the Witness Stand at the International Criminal Tribunal for Rwanda’, International Journal for Crime, Justice and Social Democracy 6, no. 1 (2017): 51–72; Richard Ashby Wilson, Writing History in International Criminal Trials (Cambridge, Cambridge University Press, 2011); M-B. Dembour, E. Haslam, ‘Silencing hearings? Victim-witnesses at war crimes trials’, European Journal of International Law 15 (2004): 151–77.
10 , Marianne W Jørgensen., and Louise J. Phillips. ‘Discourse analysis as theory and method’. Sage, 2008, 4.
11 , Johannes Angermuller, ‘Discourse Studies’, (2015): 510–15.
12 Angermuller, ‘Discourse studies’, 511–2; Jørgensen, Phillips, Discourse Theory and Method, 4.
13 Andrew Hoskins, ‘Memory Ecologies’, Memory Studies 9 (3) (2016): 348–57; Michael Rothberg, ‘Multidirectional Memory: Remembering the Holocaust in the Age of Decolonization’ (Stanford: Stanford University Press, 2009); James W Booth. ‘The work of memory: Time, identity, and justice.’ Social Research: An International Quarterly 75, no. 1 (2008): 237–62.; Osiel, Mass Atrocity Collective Memory, 2000.; Jeffrey K Olick. ‘Collective memory: The two cultures.’ Sociological theory 17, no. 3 (1999): 333–48.
14 Olick, ‘Collective Memory’, 333–48.
15 Rothberg, ‘Multidirectional Memory’, 29.
16 The ICTR issued a total of 93 indictments, from which 62 individuals received sentences. The first judgement at the ICTR was on the 2 September 1998, Jean Paul Akayesu. The average length of a trial from an indictment being issued to judgment was just under 8.5 years, the longest was 19.5 years (Elie Ndayambaje) (Brouwer and Smeulers 2016).
17 Henry Alexander Redwood. ‘Accounting for Violence: The Production, Power and Ownership of the International Criminal Tribunal for Rwanda's Archive.’ PhD diss., King's College London, 2018. Redwood (2018) has used Foucault's insights on the Archeology of Knowledge in arguing that the construction of the ICTR archive and its content was significantly shaped by key stakeholders including actors from the United Nations Security Council and the Rwandan government. The influence of these stakeholders on the creation of the archive highlights that the archive was not constructed, nor did in operate, with the interests of witnesses or Rwandan society. Rather, it was the influential stakeholders who primary benefited from the way the archive was produced.
18 Foucault, The Archaeology of Knowledge, 146.
19 Nizeyimana (ICTR-00-55C) was known to be a member of then president Habyarimana inner circle of advisors referred to as Akazu ('the little house’). His charges included genocide, crimes against humanity, rape and murder (Nizeyimana Indictment 2000). In June 2012 the trial Chamber III sentenced Nizeyimana to life in Prison, which was reduced to 35 on appeal (Judgment 2012). Ndahimana (ICTR-01-68-PT) was mayor of Kivumu before and during the start of the genocide. In July 1994 he fled to the Democratic Republic of the Congo where in 2009 he was arrested and transferred to the ICTR. The charges against the accused included genocide and extermination as a crime against humanity. In a majority decision he was found guilty of genocide and extermination by aiding and abetting and sentenced to 15 years (Ndahimana Judgment 2011). In 2013 the Appeals Chamber increase his sentence to 25 years primarily because the prosecutor had been able to demonstrate ‘beyond reasonable doubt’ that Ndahimana had intent to commit genocide and acted as part of a joint criminal enterprise to exterminate Tutsi.
20 E. Ketelaar, ‘Archives as Spaces of Memory’, Journal of the Society of Archivists 29 (2008): 9–27.
21 Lisa P Nathan., Milli Lake, Nell Carden Grey, Trond Nilsen, Robert F. Utter, Elizabeth J. Utter, Mark Ring, Zoe Kahn, and Batya Friedman. ‘Multi-Lifespan Information System Design: Investigating a New Design Approach in Rwanda’, in Proceedings of the 2011 iconference, pp. 591–7. 2011.
22 R. Keydar, ‘Mass Atrocity, Mass Testimony, and the Quantitative Turn’, International Law, Law & Society Review 53 (2019): 554–87; Osiel, ‘Mass Atrocity Collective Memory’, 2000.; Groome, ‘The Right to Truth’, 175.
23 Groome, ‘The Right to Truth’, 175.
24 Osiel, ‘Mass Atrocity Collective Memory’, 3–4.
25 Keydar, ‘Mass Atrocity, Mass Testimony’, 566.
26 Viebach, ‘The Evidence Not Heard’, 70.
27 Marie-Bénédicte Dembour, and Emily Haslam, ‘Silencing hearings? Victim-Witnesses at War Crimes Trials’, European Journal of International Law 15, no. 1 (2004): 151–77.
28 Ruti G. Teitel, ‘Transitional Justice’, Oxford University Press on Demand, 2000.
29 For a discussion on how human rights reports constructed a narrative of the Rwandan gacaca courts as a failure because they didn't adhere to legal and human rights norms see Thorne and Viebach (2019). Thorne, Benjamin, and Julia Viebach. 2019. ‘Human Rights Reporting on the Rwandan Gacaca Courts: A Story of Stagnation and Failure’. In Rwanda Since 1994: Stories of Change, edited by Hitchcott and Grayson. 10.
30 Laurel E. Fletcher and Harvey M. Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’, Human Rights Quarterly 24, no. 3 (2002): 573–639.
31 C. Turner, Violence, Law and the Impossibility of Transitional Justice (Abingdon: Routledge, 2016); M. Zunino, Justice Framed (Cambridge: Cambridge University Press, 2018).
32 J. Winter, ‘Notes on the Memory Boom’, in Memory, Trauma and World Politics: Reflections on the Relationship Between Past and Present ed. D. Bell (London: Palgrave Macmillan, 2006).
33 Nancy A. Combs, Fact-Finding without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge: Cambridge University Press, 2010).
34 VFRT Dennis Byron (President and Judge). Interview Date: 28 October 2008, 5 November 2008 Location: Arusha, Tanzania Interviewer: Robert Utter – http://www.tribunalvoices.org/voices/transcripts/transcript_BYRON_Dennis_full.pdf.
35 Michel Foucault, ‘Archaeology of Knowledge’, 49, 55.
36 Michel Foucault, ‘Archaeology of Knowledge’, 50, 98–101.
37 The word ‘statement(s)’ has been italicised when referencing Foucault's use of it to help distinguish this from witness statements.
38 Michel Foucault, ‘Archaeology of Knowledge’, 55.
39 Ibid., 48.
40 David J Howarth., David R. Howarth, Aletta J. Norval, and Yannis Stavrakakis, eds. ‘Discourse Theory and Political Analysis: Identities, Hegemonies and Social Change (Manchester University Press, 2000), 50.
41 Michel Foucault, Discipline and Punish: The Birth of the Prison (Vintage, 2012), 207–8.
42 Foucault, ‘Archaeology of Knowledge’, 87–8.
43 Gerald Gahima, ‘Transitional Justice in Rwanda: Accountability for Atrocity’ (Abingdon: Routledge, 2013).; Keydar, ‘Mass Atrocity Mass Testimony, 566–72; Osiel, ‘Mass Atrocity Collective Memory’, 2000.
44 Foucault, ‘Archaeology of Knowledge’, 77.
45 Ibid., 188.
46 Gavin Kendall and Gary Wickham. ‘Using Foucault's Methods’. Sage, 1998: 2.
47 Ahl used a Foucauldian framework to conduct a discourse analysis of academic research articles on women's entrepreneurship, in order to understand how the female entrepreneur was discursively constructed. Neergaard, Helle, and Ulhøi, Handbook of Qualitative Research Methods in Entrepreneurship (Cheltenham: Edward Elgar Publishing, 2007). Also, see Zunino (2018), Moon (2006). C. Moon, ‘Narrating Political Reconciliation: Truth and Reconciliation in South Africa’, Social & Legal Studies 15 (2006): 257–75.
48 Foucault, Discipline and Punishment, 2012.
49 International Criminal Tribunal for Rwanda, Statute: Article 31 Rules of Procedure and Evidence, Arusha: United Nations, 2007, p.55.
50 International Criminal Tribunal for Rwanda, Statute: Article 17 Investigation and Preparation of Indictment, Arusha: United Nations, 2010, 57–9.
51 Foucault, ‘Archaeology of Knowledge’, 126.
52 P. Akhavan, Reducing Genocide to Law: Definition, Meaning, and the Ultimate Crime (Cambridge: Cambridge University Press, 2012).
53 Kjell Anderson, Perpetrating Genocide: A Criminological Account (Abingdon: Routledge, 2017), 4.
54 Anderson, ‘Perpetrating Genocide’, 4–6.
55 William A. Schabas, Genocide in International Law: The Crime of Crimes (Cambridge: Cambridge University Press, 2009).
56 Anderson, ‘Perpetrating Genocide’, 7.
57 Lee Ann Fujii, Killing Neighbors: Webs of Violence in Rwanda (New York: Cornell University Press, 2009).
58 For further discussions on the Genocide against the Tutsi see Eltringham (2003); Strauss (2006); Mamdani (2002); Melvern (2004).
59 Fujii, ‘Killing Neighbours’, 8.
60 Ibid., 9.
61 Ibid., 11.
62 Former ICTR Acting Chief of Investigations Alfred Kwende notes, ‘the tribunal didn't start with professional investigators. It started with just picking anybody. They asked most countries to send staff, they sen[t] volunteers’ … ‘In some case there were no follow ups [to investigations] because they had to go back to their countries, the secondees [were here] for three months, six months. (Nathan 2008).
63 Foucault, Archaeology of Knowledge, 1972.
64 Golder, Ben, ed. Re-Reading Foucault: On Law, Power and Rights. (Routledge, 2013).
65 For a discussion on the importance of Foucault's writings on law see Golder 2010. Golder, B., Fitzpatrick, P., 2009. Foucault's law. Routledge-Cavendish.
66 VFRT David Wagala, Acting Chief of Investigations .Interview Date: 16 October 2008 Location: Butare, Rwanda Interviewers: Batya Friedman John McKay – http://www.tribunalvoices.org/voices/transcripts/transcript_WAGALA_David_full.pdf.
67 VFRT Roger Pionana, Investigator. Interview Date: 15 October 2008 Location: Butare, Rwanda Interviewers: John McKay Batya Friedman - http://www.tribunalvoices.org/voices/transcripts/transcript_PIONANA_Roger_full.pdf.
68 VFRT Suzanne Chenault, Legal Officer and Juris-Linguist. Interview Date: 4 November 2008 Location: Arusha, Tanzania Interviewers: Lisa P. Nathan Donald J Horowitz - http://www.tribunalvoices.org/voices/transcripts/transcript_CHENAULT_Suzanne_full.pdf.
69 Foucault, ‘Archaeology of Knowledge’, 97.
70 Phil Clark, Distant Justice: The Impact of the International Criminal Court on African Politics (Cambridge: Cambridge University Press, 2018).
71 Judge Eric Mose was a minority voice amongst ICTR judges advocating the usefulness of the trial chamber visiting the site where alleged crimes took place. See interview with Judge Mose (Voices from the Rwandan Tribunal 2008).
72 Mechanism Archives and Records Section. ICTR-00-55C. ICTR. ‘Prosecutors Pre-Trial Brief’, 29th September 2010.
73 Mechanism Archives and Records Section. ICTR-00-55-0125. ICTR. ICTR-00-55. ‘Supplementary Submission To The Motion To Vary The Witness List’, 14th September 2010.
74 The prosecution/defence teams would create pseudonyms for witnesses.
75 Mechanism Archives and Records Section. ICTR-00-55-0125. ICTR. ICTR-00-55. ‘Supplementary Submission To The Motion To Vary The Witness List’, 14th September 2010.
76 Mechanism Archives and Records Section. ICTR-00-55C-0236. ICTR. ICTR-00-55C. ‘Prosecution Response To Urge-For Disclosure Of Prior Statements (Rule 54, 66(A)(Ii), 70 And 73 Of The R.P.E)’, 26th January 2011.
77 Foucault,’ Archaeology of Knowledge’, 63.
78 Ibid., 56–7.
79 Mechanism Archives and Records Section. ICTR-00-55C-0099. ICTR. ICTR-00-55C-0099. ‘Second Amended Indictment Second Amended Indictment’, 29th September 2010.
80 VFRT Hassan Jallow, Chief Prosecutor. Interview Date: 5 November 2008, 6 November 2008 Location: Arusha, Tanzania Interviewers: Lisa P. Nathan Donald J Horowitz Batya Friedman – http://www.tribunalvoices.org/voices/transcripts/transcript_JALLOW_Hassan_full.pdf.
81 Akayesu amended indictment included the crime of rape. This crime was not included in the original indictment because it was only after it had been submitted that prosecutors became aware of six key witnesses. While the Akayesu case highlights that the amended indictment allowed for addition witnesses to be called, however the Akayesu case setting the foundations for further rape prosecutions at the ICTR also acted to restrict what stories of rape witnesses could tell. As Buss (2009) and De Brouwer (2015) have argued, the ICTR since the Akayesu judgment has created a narrow ‘script’ of what stories of rape and/or sexual violence can be told in court. This narrow ‘script’ has meant many individuals, such as male victims of rape, not being able to testify in court.
82 International Criminal Tribunal for Rwanda, Rules of Evidence: Rule 73 bis Pre Trial Conference (Arusha: United Nations, 2013), 83.
83 Mechanism Archives and Records Section. ICTR-00-55C. ICTR. ‘Prosecutors Pre-Trial Brief’, 29th September 2010.
84 Inyenzi, meaning cockroach, was a term used to describe Tutsi.
85 Mechanism Archives and Records Section, ‘Prosecutor Pre-Trial Brief’, 13–14.
86 Fujii, Killing Neighbours’, 12.
87 Ibid., 13.
88 Ibid., 20.
89 Nigel Eltringham, Genocide Never Sleeps (Cambridge: Cambridge University Press, 2019), 138–9.
90 Ibid., 139.
91 Here it is worth noting a difficulty of working with the ICTR online archival material. Some documents are not yet digitised, or/and are not currently available for legal reasons. This is the situation for transcripts and audio-visual recordings of witness testimonies given in court in the Nizeyimana case. The online archive does include some audio-visual recordings of witness testimonies in the Nizeyimana case, however these need to be requested and to date this request is still waiting to be fulfilled. In absence of transcripts of witness testimonies in the Nizeyimana case, the article will make this argument with the Gregoire Ndahimana case (ICTR-2001-68-PT), and witness YAU.
92 GREGOIRE NDAHIMANA Case No. ICTR-2001-68-PT THE PROSECUTOR'S PRE-TRIAL BRIEF.
93 S. Uglow, ‘Law of Evidence’. Textbook. 1st ed. L (1997), 325.
94 Atkinson, J. Maxwell, and Paul Drew. Order in court. Springer, 1979, 326.
95 Schabas, William A. The UN international criminal tribunals: the former Yugoslavia, Rwanda and Sierra Leone. Cambridge University Press, 2006.
96 Ndahimana Trial Transcript 2010, 41–8.
97 Foucault, ‘Archaeology of Knowledge’, 87–8.