Vengeance is mine saith the lord.

From Cyberlaw

Introduction

In 2001, Belgium held one of the most unusual war crimes trials in history. Belgium had a law proclaiming its right to exercise “universal jurisdiction” over anyone accused of participating in genocide, regardless of nationality. Under this law, Belgium tried four Rwandans – two professors, Vincent Ntezimana and Alphonse Higaniro, and two nuns, Maria Kisito and Gertrude Mukangango - for their roles in the Rwandan genocide. The professors were accused of having helped organize and orchestrate the murders. The nuns were accused of supplying gasoline to Hutus who sought to burn Tutsis alive. While their crimes were ghastly, none of the defendants were primary architects of the genocide. They were tried because they happened to be living in Belgium. A Belgian jury convicted all four defendants.

This trial raises profound questions about war crimes prosecution. Having studied and written extensively about it, I continue to have mixed feelings about whether justice was done. I will discuss three aspects of the trial: first, the narrative and metanarrative content achieved by the trial; second, the manner in which the trial procedures assisted in expressing these narratives; and third, the role of race. I will finally reflect on whether the trial provided any resolution.

Narrative and metanarrative

The trial expressed multiple interlocking narratives. One narrative was that of the crimes themselves. The trial told a story that convinced the jury that the defendants had committed genocide.

However, two metanarratives – narratives in which the trial itself played a role, rather than narratives that were expressed at trial - obscured the narrative of the crimes. One metanarrative was of Belgium assuaging its guilt for the genocide. The guilt stemmed both from Belgium’s fomenting of racial tension between Hutus and Tutsis during its colonization of Rwanda, and from its failure to intervene during the genocide. The trial served to purge Belgium’s guilt by demonstrating its newfound respect for human rights. Another related metanarrative was the expression that Belgian justice is international justice – that an international tribunal was unnecessary, because Belgium alone could channel universal law. The two metanarratives were self-serving: their goal was to reinforce Belgians’ self-confidence and faith in their values. Indeed, the narrative of the crimes themselves supplemented this self-serving goal. Belgians’ guilt that they were responsible for the genocide could be mitigated by expressing the narrative that individual Rwandans, rather than Belgium, bore responsibility for the genocide.

Now, all war crimes trials have metanarratives. Many would argue that the Nuremberg trials occurred in part to express a message about Western-style justice. But this trial was unique. In most such trials, the primary goal is retribution against the enemy; the public eye is trained on the defendants. In this case, there was little concern for retribution. The defendants were anonymous perpetrators of an unfamiliar crime. And yet, it was inevitable that they would be found guilty anyway because the narrative of the trial – the effort to assuage Belgian guilt and glorify Belgian justice – could only work if the Rwandans were found guilty. The focus in Nuremberg was the narrative – the guilt of the Nazis. The focus in Belgium was the metanarrative – the innocence of the Belgians.

How the trial procedures reflected the narrative

The jury: The trial used a Belgian jury. Unlike any other war crimes tribunal in memory, the jury had no particular expertise – it was composed largely of blue-collar workers who had never heard of the genocide.

This can be explained in terms of the trial’s narrative goals in two ways. First, it aided in assuaging Belgium’s guilt that their racist policies in Rwanda led to the genocide. It did so by contributing to a narrative that would divert moral responsibility from the Belgians to the Rwandans. Using a standard jury and treating the trial as a standard proceeding reinforced the narrative of the Rwandans as standard criminals who, like any other criminals, bore responsibility for their actions. Alternately, it reflected the narrative that Belgium had developed a newfound commitment to human rights. The most compelling way to exhibit this narrative was to channel the trial through a random cross-section of Belgium – expressing that the values had percolated through the entire community.

Hearsay: There was some use of hearsay evidence in the trial. Rwanda is thousands of miles away; practicality alone necessitated some admittance of hearsay. But there is a more textured reason that hearsay could be admitted. The hearsay rule is traditionally justified on the basis that hearsay is unreliable. But in truth, hearsay is no more unreliable than other admissible types of evidence. Hearsay may be less reliable than in-court testimony, but it is still somewhat probative, and excluding it completely hides relevant data from the jury. A better account for the hearsay rule is that society has an interest in making verdicts publicly acceptable. One way of achieving this goal is by admitting only testimony for which the jury has a comparative advantage in assessing its reliability – that is, in-courtroom testimony – so that outside observers will defer to the jury’s judgment.

But these considerations were irrelevant in this case. There was little danger of Belgians evaluating the hearsay evidence and deciding that the Rwandans were innocent. The genocide was sufficiently distant and unfamiliar that Belgians did not exhibit much concern over the specific evidence or nature of the crimes. They viewed the defendants as a generic collective that committed generic war crimes, for whom punishment might glorify the Belgian justice system. Even the judge exhibited this mentality. The four defendants, despite being accused of separate crimes, were tried in the same proceeding, over their vigorous objections. Normally, trying defendants together for unrelated crimes is deemed unfairly prejudicial; the judge ignored this consideration, apparently viewing them not as people with individual stories, but a unit for which a jury could establish collective guilt. Unlike in the Rodney King case or O.J. Simpson cases, the focus was not whether the defendants were guilty; unlike in the Saddam case, there was little concern over the actual crimes. Because few people focused on the details of the crimes, public faith in the verdicts was unlikely to be swayed by admitting hearsay.

The irony is that the use of hearsay might have made the trial fairer. Including eyewitness testimony but excluding hearsay has always seemed to me unfair. Arbitrarily including some evidence of limited probative value and excluding other evidence of limited probative value might advance the cause of public acceptance of verdicts, but it doesn’t seem to advance the cause of truth. It’s quite possible that permitting the jury to consider all of the evidence increased the pursuit of truth – if only because the public was apathetic to what actually was the truth.

The role of race

When viewing pictures of the trial, it is impossible to escape the image of black defendants and white jurors. In America, this visual image is inextricably linked to racism. And in a sense the trial was racist. Belgium tried four African defendants before an all-white European jury. Its implicit claim was that a European system could express a definitive judgment on African crimes. But in another sense, it would have been even more racist not to try them. Arguing that black defendants are not responsible for genocide in the same way as white defendants attributes a kind of inherent savagery and inhumanity to Africans. It would also mirror the widespread apathy to Rwandan crimes that the Western world exhibited while the genocide was actually occurring. Stare at the trial for more than a few seconds and it seems to flip from racist to antiracist and back again…

Resolving the dispute

Although the dispute over the crimes was largely resolved at trial - there was overwhelming evidence that the Rwandans were guilty - the dispute over the legitimacy of the trial was not. The defendants argued that the trial was illegitimate and racist. Their argument had merit. For instance, as argued above, certain aspects of the trial, such as the use of the Belgian jury and hearsay, were used for political reasons to facilitate a narrative orthogonal to the defendants’ guilt. The government, in contrast, argued that the trial was a legitimate means of exacting punishment according to universal standards of international law. The dispute over the trial’s legitimacy could not be resolved in the courtroom. It’s hard to see how even an Archibald Cox acting within the courtroom could help in resolving a narrative exterior to the courtroom – whether he was justified to be there in the first place.

But deep down, I believe that the trial provided resolution. The defendants participated in a genocide that was among the most tragic in history. It doesn’t matter that the trial was politicized, or that the jury was Belgian, or that the structure of the trial could be attributed to narratives extrinsic to the defendants’ innocence or guilt. As I stare at the proverbial Necker cube, only one face seems to leap out, and that is the face of human evil and deserved punishment.

1495 words + picture (an additional 1000 words?)

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