Evidentiary Challenges of New Technologies in International Criminal Trials

Aparajitha Narayanan, Leiden University, The Netherlands

Aparajitha Narayanan has a Bachelor of Laws degree from I.L.S. Law College, India, 2015. She has worked in a corporate law firm for a period of three years, after which she pursued her LLM in Public International Law, with a Specialisation in International Criminal Law, from Leiden University. Her LLM thesis entitled ‘Command Responsibility: A Contemporary Exposition’ was supervised by Professor William Schabas. Her areas of interest include International Criminal Law (specifically, defence rights), Public International Law and International Humanitarian Law. She currently works as a Lecturer at Jindal Global Law School on the course Global South and International Law, taught by Prof. Dr. B.S. Chimni.

Abstract

Modern international criminal justice, and particularly the evolution of digital evidence, owe their exposition to the war crimes trials of World War II. During the time of establishment of such tribunals and their functioning systems, many felt that international criminal law (ICL) did not possess the legal finesse necessary to reprobate the atrocities committed then. While certain crimes were ostensibly considered to be morally wrong by the international community as a whole, legal sanctions against such actions were not entirely present. International criminal law thus had to develop and draw level with the expectations of the world, against the backdrop of the acts of savagery that took place at the time. Contemporary times also dictate that as technology becomes more and more boundary-less, it tends to take crimes in its stride, thereby enhancing their outreach as well. This paper will trace the history of evidence collection in ICL and will highlight the linkage between digital evidence and contemporary times. While delving into specific cases, the paper will elaborate on the present and future use of digital technology in international crimes. It will also deal with the confluence of digital technology and open source evidence. This paper will argue that digital evidence in ICL may be disadvantageous to defence teams, owing to lack of resources, and certain solutions will be discussed to address the above problem. In conclusion, the positive and negative aspects of technology’s influence on ICL will be espoused, while underscoring the need to take a cautious approach.

1 Introduction

Law is an evolutive paradigm; its development is directly affected by changes in society and politics. We live in a digital age, the effects of which also trickle down to the legal field. Evidence collection is a specific facet of law that has taken technology in its stride.

International Criminal Law (ICL) is multifaceted in both its yield and its outreach, since grave international crimes are typically rife with factual complexities (Ford, 2014, p. 5; Ford, 2015, pp. 151-152). During the investigation of a crime of murder, it will not suffice if the elements of actus reus (the constituent element of a crime, the physical ‘act’ of the commission of crime) and mens rea (the mental element of the crime, the ‘intention’ to commit the crime) are proven (simultaneously). Apart from the specific elements of a crime, the contextual elements, the individual criminal responsibility of the perpetrator (linkage evidence) are also required to be established. Failing at this, the charge falls flat (Dörmann, 2003, pp. 241, 357). For instance, in order to prove the crime against humanity of sexual slavery, it is also necessary to establish that the perpetrator engaged in purchasing, selling, bartering etc. the victim or deprived his/her liberty, made the victim participate or carry out acts of sexual nature, or that the conduct was committed as a “widespread or systematic attack against a civilian population,” among other elements (Article 8, Elements of Crime, 2002). From the above, we can clearly comprehend that the complexity of an international crime is enormous, and therefore, that its adjudication is also trammelled by composite intricacies.

International criminal courts and tribunals are ideal platforms that can use and showcase advancements in digital technology in an elucidatory manner. They may even set a good example for domestic processes provided they achieve high evidentiary thresholds. Courtroom evidence is now focused on new tools, which have changed the very identity of the said field. The high connectivity, easy availability, and expansive capabilities of internet enabled devices and cameras have successfully made their way into the realm of evidence gathering (Bergasmo and Webb, 2007). They have proved to be instrumental in devising updated methodologies for investigators to follow. International criminal trials require prosecutors to collect a wide array of evidence and present a diverse body of proofs to establish multiple crimes. Advanced digital technology is capable of storing copious amounts of information about any ‘case’ or even a ‘situation;’ it also assists lawyers and prosecutors to strengthen evidence by way of introducing time stamps etc.

Currently, in ICL, there are no rules of procedure that may be exclusively applied to digital technology related evidence, indicating that it is perhaps not keeping up with the changing times. The ‘best evidence rule’ followed in most criminal trials requires investigators to collect and present only evidence that is best suitable for establishing the factual circumstances (Freeman, 2018). However, extrapolating the said rule to evidence gathered via digital technology is difficult, since there is a barrage of information that may become available, thereby flooding the evidence table with superfluous information.

This paper will argue that digital technology and its influence on the functioning of international criminal law have complex nuances. It is imperative to first understand the import of advancement of new technologies before relying on them for evidentiary purposes. In order to develop this argument, this paper will firstly discuss the types of evidence (including the three-prong test in ICL) and the applicable provisions of the Rome Statute of the International Criminal Court (hereinafter called the Rome Statute) in relation to digital evidence. Then, the paper will trace the history of collection of evidence in ICL. Further, an examination of the evidence-gathering and submission methodologies used in some recent cases brought before international criminal courts and tribunals will be done, highlighting some of the contemporary nuances of international crimes and their linkages with the digital age. Moving on, the paper will elaborate on the applicable law of evidence and the practical changes carried out by investigators owing to advancements in technology, thereby filtering it further and understanding whether there is any ‘tunnel vision’ approach. Certain specific cases that throw distinctive light on the present and plausible future use of digital technology in evidence gathering concerning international crimes will then be discussed. The paper also attempts to comprehend the disadvantages faced by defendants when trials focus on digital evidence. Therefore, the paper will also discuss some suggestions on how to address the said problems. Finally, the present-day challenges of new advancements in the international criminal law sphere will be evaluated, while leaning principally towards its ambivalent potentialities.

2 Collection of evidence in international criminal law

There are different types of evidence: testimonial (where written or oral evidence is offered as truth in a court of law), documentary (where documents are submitted to a court of law as evidence), physical (material evidence used to prove the fact in issue) and forensic (evidence obtained via scientific methods, submitted in a court of law). Article 69(2) of the Rome Statute deals with giving testimonies via audio or video conferencing (Rome Statute, 1998). Rule 67 of the Rules of Procedure and Evidence (RPE) of the ICC concerns itself with the procedural requirements of such testimonies (RPE, 2004). It is relevant to note that Regulation 26(4) of the Regulations of the ICC (2004) states that “in court proceedings, evidence shall be presented in electronic form whenever possible, however, the original form shall be authoritative” (Regulations of the ICC, 2004).

Further, Article 69(4) of the Rome Statute enumerates a three-prong test for admission of evidence, structured around the following elements:

(i) “relevance” (whether it relates to the circumstances of the case), (ii) “probative value” (whether it contributes to proving the issue at hand) and (iii) “relevance to outweigh any potential prejudicial effect that may be caused by its admission” (Rome Statute, 1998).

It is pertinent to keep in mind that the above conditions must be met even while presenting digital or electronic evidence. Digital evidence may be defined as “data that is created, manipulated, stored or communicated by any device, computer or computer system or transmitted over a communication system, that is relevant to the proceeding” (Mason, 2008, p. 35).Digital evidence was first used by national jurisdictions, before its extrapolation to ICL. While witness testimony generally forms the focal point of international criminal trials (Article 69(2), Rome Statute, 1998; Prosecutor v. Bemba, Trial Chamber, 2011, para. 76), other forms of evidence also contribute to the smooth functioning of the trial process. They may include photographs, aerial imagery, recordings (audio and video), forensic evidence, ballistic reports, DNA etc.

With the advent of technology, nowadays any digital/electronic device is capable of being used as evidence, be it a mobile phone, a laptop, or a camera. While it is true that an eyewitness account is essentially the person’s rendition of a recollected memory of the incident, it may not be as all-encompassing as an electronic device. For instance, a satellite image may be capable of pinpointing an inaccessible spot, and mobile call records could enable one to identify the exact communications which may in turn assist in identifying the accused’s activities. Such information may potentially help courts in ascertaining the truth about the incident and further provide much-needed support in the proper execution of the investigation and its appropriate adjudication. Even so, while Rule 68 of the RPE provides that prior recorded testimony can be used as an alternative to viva voce testimony, it comes ridden with restrictions (RPE, 2004).

3 History of collection of evidence in international criminal law

3.1 The Nuremberg International Military Tribunal 

The International Military Tribunal (IMT) at Nuremberg was unique in a plethora of ways. It was set up just about six months after the surrender of Germany post World-War II (US Holocaust Memorial Museum, IMT at Nuremberg) and was lauded for its quick prosecutions. Prior to the establishment of the IMT, trials used to heavily rely on witness testimonies. However, for the first time, the IMT emphasised documentary evidence rather than live witness testimonies. The widespread and systematic persecution of the Jewish population by the Nazis was diligently documented (including registration forms for Jewish people, containing their names and other details, inventory lists for Jewish properties etc.) by official government and military records, thereby strongly assisting in proving genocidal intent, among other elements (Boender and Wichert, 2012, p. 10). Films and photographs were also widely prevalent since World-War II was an infamously important conflict (Freeman, 2018, p. 299). Reporting of crimes was done through the use of photography, and films also played the role of an educational and informative tool in spreading the news about war crime efforts in different parts of the world. Not only were whispers regarding the atrocities committed during the biggest war in history heard by one and all: actual footage of the heinous crimes committed were also virtually witnessed by many. Thus began the reliance on digital technology for the prosecution of international crimes.

Ad-hoc tribunals like the International Criminal Tribunal at Rwanda (ICTR), the International Criminal Tribunal of the former Yugoslavia (ICTY), Special Court for Sierra Leone (SCSL), Special Tribunal for Lebanon (STL) and the Extraordinary Chambers of the Courts at Cambodia (ECCC) also depended on digital evidence, in a direct or indirect manner, which will be discussed in the sub-sections below.

3.2 International Criminal Tribunal at Rwanda 

In proceedings before the ICTR, the Office of the Prosecution (OTP) relied on a video recording of a rally to prove that the accused had attended the rally (where the Interahamwe were present) and given a speech inciting violence against the Tutsis, and had also submitted a radio transcript of the same (Prosecutor v. Karamera et al., ICTR, Trial Chamber, 2012, para. 508). The ICTR, based on this information, held that the radio transcript effectively authenticated the video’s date, thereby proving conclusively that the defendant had indeed attended the rally (Prosecutor v. Karamera et al., ICTR, Trial Chamber, 2012, para. 598).

More radio announcements were submitted by the OTP wherein it was stated clearly that Tutsis were to be pursued and harmed (Prosecutor v. Rutaganda et al., ICTR, Trial Chamber, 1999, para. 358). The ICTR held that the recordings were authentic, when combined with an expert witness’ testimony (among two other testimonies) (Prosecutor v. Rutaganda et al., ICTR, Trial Chamber, 1999, para. 363). Additionally, to prove ‘control,’ video footage along with a transcript was submitted by the OTP. This was used by the ICTR to establish that the person in the video, the defendant, was indeed the Minister of Defence at the time of the conflict, thereby exercising effective control over the military forces (Prosecutor v. Bagosara et al., ICTR, Trial Chamber, 2008, para. 493, 494). Although the ICTR blatantly refused to admit any evidence without the author’s testimony (supporting the digital evidence), it was considered a laudable effort at the time (Prosecutor v. Renzaho, ICTR, 2007, pp. 1, 2).

3.3 International Criminal Tribunal for the former Yugoslavia

Upon obtaining the testimonies of intercept operators, the ICTY admitted into evidence certain intercepted communications produced by Bosnian Muslims (Prosecutor v. Tolimir, ICTY, 2012, Trial Chamber, para. 63). In the same instance, the intercepts’ printouts were corroborated with the original notebooks of the intercepted communications. Furthermore, the evidence was seconded via notes of UN officials, increasing its probative value, by way of telephone books, aerial imagery and witness statements (Prosecutor v. Tolimir, ICTY, 2012, Trial Chamber, para. 64). The Tolimir decision, wherein the accused was held guilty of having committed the crimes of genocide and other crimes against humanity, is particularly significant. In the case of Prosecution v. Tolimir, the OTP submitted aerial imagery evidence obtained from the United States of America, which came embedded with instructions not to discuss the methods used to obtain such evidence (Prosecutor v. Tolimir, ICTY, 2012, Trial Chamber, para. 68). Such evidence was found to be reliable regardless of the absence of direct evidence tracing its origin and collection methods since witnesses and investigators from the OTP gave testimonies authenticating the said aerial images (Prosecutor v. Tolimir, ICTY, 2012, Trial Chamber, para. 70). The ICTY was also imperative in establishing that upon the authentication of digital evidence, contrary testimonial evidence may be impeached (Prosecutor v. Krstić, ICTY, 2001, Trial Chamber, para. 278). The OTP also submitted video and other scientific evidence for authentication and the ICTY categorically held that since the digital evidence was separately corroborated by other pieces of evidence, its veracity could not be challenged (Prosecutor v. Galić, ICTY, 2003, Trial Chamber, para. 549).

Chain of custody as such is generally a controversial aspect of the use of evidence in criminal trials. However, identification of a witness via voice interception proved the authenticity of a piece of digital evidence in the case of Prosecutor v. Brdanin, even though it had certain chain of custody issues (Prosecutor v. Brdanin, ICTY, 2004, Trial Chamber, para. 34). Handwritten notes converted to digital notes were permitted by the ICTY instead of audio recordings, which would have been considered ‘best evidence’ (Prosecutor v. Popovic et al., ICTY, 2007, Trial Chamber, para. 39). Regarding the preservation of digital evidence, this was not a pre-requisite for it to satisfy the ‘best evidence’ rule popularly applied in international criminal trials, which was a considerable departure from earlier jurisprudence (Prosecutor v. Popovic et al., ICTY, 2007, Trial Chamber, para. 39). In respect of altered evidence, the ICTY held that such alterations do not affect the credibility of the evidence (Prosecutor v. Popovic et al., ICTY, 2010, Trial Chamber, para. 73-75). In addition, even when one of OTP’s analysts stated that certain intercepts could have been tampered with, the OTP contended that the transcripts and notes (instead of the recordings) ought to be admitted, despite the defence’s objections to the transcripts being incomplete (Prosecutor v. Blagojević and Jokić, ICTY, 2005, Trial Chamber, para. 29). The ICTY chose to admit the transcripts, stating that the transcripts were authentic since their preservation procedures were in order (Prosecutor v. Blagojević and Jokić, ICTY, 2005, Trial Chamber, para. 29; Prosecutor v. Popovic et al., ICTY, 2007, Trial Chamber, para. 39).

3.4 Special Tribunal for Lebanon

Trials in the Special Tribunal for Lebanon (STL) were entirely held in absentia of the defendants, in a series of firsts for the STL (apart from being the first hybrid tribunal that tried domestic cases on terrorism) (Fassbender, 2007). Telecommunication records (in this case, “call data records, cell site information and subscriber records”) were submitted as evidence by the OTP (first of its kind evidence) since it was alleged that the terrorists who killed the former Prime Minister of Lebanon Mr. Rafik Hariri had been tracking his movements using mobile networks (Public Information and Communications Section of the Special Tribunal for Lebanon, 2017). Further, video footage evidence has been submitted by the OTP, which contains surveillance cameras in the area where the attack occurred, and it is to be considered in conjunction with forensic evidence (STL Bulletin, 2018, p. 5). To understand the use of explosives and the epicentre of the detonation, the OTP submitted expert evidence that used the aid of computer programmes and mathematical algorithms to ascertain the various permutations and combinations (STL Bulletin, 2017, p. 1). The said evidence substantiates the OTP’s assertion that the explosion was above-ground and not under-ground as contended by the defence, and was the work of a suicide bomber (Prosecutor v. Ayyash, STL, Key Developments, Case Timeline). It is relevant to note that cellular signals are neither accurate nor highly reliable, and while there is no judgment on this matter yet, once the above case is adjudicated, the haziness surrounding the evidentiary value of such items will conceivably abate.

3.5 Extraordinary Chambers in the Courts of Cambodia

Film recordings of prison camps during the Khmer Rouge regime were not admitted by the Extraordinary Chambers in the Courts of Cambodia (ECCC) owing to the objections raised by the defendant about their reliability and authenticity. The ECCC, in Case 001 (regarding two sequences of film footage submitted by the co-prosecutors), held that the said films would end up intruding on the court’s valuable time (Case 001, ECCC, 2009, Trial Chamber, para. 5, 15). The OTP corroborated the said video recordings with a live witness testimony, however, the ECCC did not budge from its decision of rejecting their credibility. Further, video evidence was submitted by the OTP to the ECCC in another case as well (Case 002), but owing to its ‘low probative value,’ the ECCC did not admit it as evidence (Case 002, ECCC, 2018, Trial Chamber, para. 69).

By noting the pronouncements made by the above tribunals and courts, it becomes clear that digital evidence served as an important addition to the evidentiary procedures of international criminal trials. When combined with other corroborative evidence, its weightage multiplies two-fold and its vast potentialities may see the light of day when all the stakeholders understand the import of its influence in criminal trials. However, the above paragraphs also highlight that courts are extremely cautious (as they ought to be) before admitting digital evidence not corroborated by other pieces of evidence which they believe aid in strengthening its authenticity and veracity. Further, it is also evident that if preservation procedures are strictly followed while preserving digital evidence, courts trust that such evidence is credible.

4 The International Criminal Court and its treatment of digital evidence

The ICC, in its formative years, did not depend heavily on digital evidence during investigations. Later on, in 2008, the OTP relied on digital evidence while arresting Jean-Pierre Bemba, who had been accused of committing war crimes and crimes against humanity in the Central African Republic (CAR) (Prosecutor v. Bemba et al., ICC, 2017, Appeals Chamber, para. 5), and Callixte Mbarushimana, accused of committing war crimes and crimes against humanity in the Democratic Republic of Congo (Prosecutor v. Mbarushimana, ICC, 2011, Pre-Trial Chamber, para. 23). The investigation process produced a surfeit of digital evidence, which had to be processed by the national authorities in CAR and Congo respectively, since presumably, the OTP did not have experts who could attest to its credibility (Freeman, 2018, p. 306). After 2008, digital evidence became the norm, rather than the exception, and its usage was proportionally augmented owing to the increased use of many sources of digital evidence, like laptops, mobile phones and social media (Digital Fingerprints, 2014, p. 5).

The OTP has investigated cases where digital evidence was of paramount importance, such as in the situations in Libya and the Ivory Coast. The new trend urgently demanded preservation of digital evidence and the creation of a system governing the same. The Scientific Response Unit (SRU) in the OTP then added a sub-branch within it, that of a Forensics Science Section, consisting of Forensic, Cyber and Imagery sub-units (Ambos, 2016, p. 119). The focus was now placed on how technology and its widespread use  may assist criminal investigations. For the past years, the OTP has been encouraging open-ended investigations with a view of  promoting digital evidence, as a form of non-witness based evidence collection. The OTP started hiring experts in digital forensics for its SRU and also trained its investigators in cyber investigations conducted by INTERPOL (Digital Fingerprints, 2014, p. 8).

The remainder of this section will review some important cases adjudicated by the ICC, like those of Lubanga, Katanga, Al-Mahdi, Bemba and Al-Werfalli. Since the ICC is the most important court for prosecuting international trials, it is essential that we look into its treatment of digital evidence. The ICC’s handling of digital evidence could serve as a blueprint for other courts and tribunals and aid in further understanding the procedural and substantive aspects of the importance of digital evidence in the prosecution of international crimes.

4.1 Lubanga

The trial of Lubanga was the first trial before the ICC. Thomas Lubanga Dyilo was the founder and leader of the Union of Congolese Patriots (UPC), a rebel group responsible for committing mass atrocities in the Democratic Republic of Congo (DRC). Lubanga was found guilty of the war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities. The OTP introduced oral, written and audio-visual evidence, while physical and forensic evidence was not submitted at all (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 93), a decision which was touted to be a gamble by many. Transcripts of interviews, videos, photographs, maps etc. were also introduced, either while taking the oral evidence of witnesses, or by way of a special application made by the respective counsel (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 93). The OTP also introduced video footage showcasing the defendant inspecting and conscripting his troops, the majority of whom seemed to be children under the age of 15 years (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 793, 794). Ostensibly, the probative value of the digital evidence in this case was known to be minimal. The OTP chose to rely on such evidence as a way of corroborating the oral testimonies of witnesses. The defence, however, argued that the video footages were simply unreliable since they could not definitively conclude whether the children were 12-13 years old or 15-16 years old (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 716). The Trial Chamber then held that the defendant intended to recruit children below the age of 15 and that the video footage clearly proved that he had no genuine intention of avoiding recruiting children (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 1335).

4.2 Katanga

During the proceedings in the trial of Germain Katanga, who was the commander of the rebel group Force de résistance patriotique en Ituri, was convicted of being an accessory to war crimes and a crime against humanity committed on 24 February 2003 during the attack on the village of Bogoro, in Ituri, DRC. The OTP included the following digital evidence:

(a) a 360° visual representation of the ‘Institut de Bogoro’ (where civilians would take refuge whenever an attack would occur), along with a visual technician’s report;

(b) over 200 photographs taken by the visual expert and by drone, used to produce the visual presentation;

(c) a ballistic expert report;

(d) a video showing footage of the crime scene investigation by the ballistic experts and its log;

(e) aerial photographs;

(f) videos showing the exhumation and examination of human remains (and their logs); among others 

(Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 2).

The defence countered the admission of the above evidence by arguing that they were complex enough to be challenged by counter experts of the defence (Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 7). Except for the ballistic report, the Trial Chamber admitted the others into evidence, while specifically stating that “the material in itself is not incriminating and has very limited evidentiary value. It is simply a tool for orientation, just like a diagram or drawing” (Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 39). It is necessary to note that the OTP was severely reprimanded for not having consulted the defence while preparing such digital evidence and for taking evidentiary decisions unilaterally (Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 74).

4.3 Al-Mahdi

Ahmad Al Faqi Al Mahdi, an alleged member of Ansar Eddine, a movement associated with the Al Qaeda, was convicted of acting as a co-perpetrator of the war crime of intentionally directing attacks against religious and historic buildings in Timbuktu, Mali, in June and July 2012. The OTP’s evidence against the defendant included inter-alia: satellite images (showcasing the sites before and after their destruction), archive photographs, internet audio recordings from armed groups, video recordings showing destruction of the sites, geolocation and time-stamping expert reports, and 360° panoramic images (Freeman, 2018, p. 316; Prosecutor v. Al Mahdi, ICC, 2016, Transcripts, pp. 28, 29). The defence did not refute the admissibility of the above evidence, and therefore, the court did not have to rule on its admissibility. It is particularly noteworthy to mention herein that the amount of ‘open-source evidence,’ i.e. information taken from public sources for specific purposes of trials (Mehandru and Keonig, 2019, p. 130), used by the OTP in the above trial was unprecedented. The defendant had also recorded videos where he was seen writing sermons dedicated to mausoleums’ destruction and directly participating in the attacks, while also giving moral support (Prosecutor v. Al Mahdi, ICC, 2016, Trial Chamber, para 37, 38). The public had also uploaded videos of the said destruction, which inadvertently resulted in the enhancement of public participation (indirectly albeit) in the trial process. Furthermore, the use of digital evidence assisted the OTP in establishing a solid, wholesome and strong case against the defendant.

However, the treatment of digital evidence by the OTP in this case was not viewed positively by one and all. Open-source evidence is to be approached warily, since they may be doctored, fake or downright falsified. Additionally, the satellite images of Google Earth were also viewed apprehensively by some digital experts since no background check was carried out by the OTP authenticating such images. It is relevant to note that the above approach is cause for concern since meta-data issues may crop up, in light of the fact that Google Earth constantly keeps updating itself, which means that positional accuracy may keep varying (Freeman, 2018, p. 318; Mohammed et. al., 2013, pp. 6, 9). An interactive platform was also devised by the OTP, which was included as demonstrative evidence, enabling the OTP to “optimally present various videos found on the internet” (Prosecutor v. Al Mahdi, ICC, 2016, Transcripts, p. 44). It could be said that such a technologically sound and innovative approach was rightly praised by participants and onlookers alike and greatly assisted in finding the defendant guilty.

4.4 Bemba

Jean Pierre Bemba was the President and Commander-in-chief of the Mouvement de libération du Congo and was charged with the commission of war crimes and crimes against humanity. The OTP introduced ten audio recordings of radio programmes, in spite of authenticity challenges made by the defence (Prosecutor v. Bemba et al., ICC, 2015, Prosecution’s request, para. 18). Telephone intercepts, call data and financial records were also extensively used during the appeals stage (Prosecutor v. Bemba et al., ICC, 2016). At the investigations’ stage, the OTP submitted as evidence emails and other electronic data belonging to the defendant, after having confiscated his laptop and mobile phone. It was, however, argued by the defence that the OTP had failed to authenticate the emails and that they must consequently be excluded. The OTP also relied on photographs found on a Facebook profile, however, the defence countered the same by contending that since Facebook does not require any authorisation prior to account-creation, attribution would not be possible (Prosecutor v. Bemba, ICC, 2015, Defence’s Response, para. 44). Even though the judgment did not rule on the admissibility of this social media evidence, it may contentiously pave the way for the OTP and the defence to make use of the wide array of digital evidence in the future. Needless to say, future jurisprudence will, in all likelihood, have to address challenges posed by admission (or rejection) of social media evidence in this growing digital age.

Other tricky issues, such as the right to privacy of the defendant, may also encumber the positive influence of digital evidence. In Bemba, it was contended by the defence that by virtue of the release and potential use (as evidence) of the financial records of the defendant, his right to privacy was being violated, since the evidence collection was done prior to the receipt of the first order by a relevant judge, thereby flouting Austrian laws (Prosecutor v. Bemba, ICC, 2016, Trial Chamber, para. 11). The defence thereby submitted that the admission of such financial records as evidence would violate the integrity of the proceedings, as per Article 69(7)(b) of the Rome Statute (Prosecutor v. Bemba, ICC, 2016, Trial Chamber, para. 14). It was then held by the Trial Chamber that although the said evidence was obtained prior to receipt of an approval from the competent domestic authorities, the nature of such information is also not particularly sensitive and will thus not violate the internationally recognised human right to privacy (Prosecutor v. Bemba, ICC, 2018, Appeals Chamber, para. 338, 348). Jurisprudentially, this was the first time the ICC recognised any international human right, which proved to be the rightful cause for celebration among the human rights’ aficionados of the criminal justice process.

4.5 Al-Werfalli

The International Criminal Court’s (ICC) investigations in Libya posed many legal challenges in this respect. Citizen and victim engagement in fact-finding was unparalleled: social media platforms like Twitter, Facebook and the YouTube were inundated with potential usable evidence that documented the conflict on a real time basis (Hamilton, 2019). In 2017, a public arrest warrant was released by the ICC against Mr. Mustafa Busayf Al-Werfalli regarding the situation in Libya. Mustafa Busayf Al-Werfalli was a commander in the Al-Saiqa Brigade and is alleged to have directly committed and ordered and commission of war crimes in Benghazi and other surrounding areas in Libya. The said warrant was primarily issued based on information derived from social media, such as execution videos (Prosecutor v. Al-Werfalli, ICC, 2017, Public Warrant of Arrest, para. 14). In a video, the defendant is seen to be wearing a rebel uniform, carrying a weapon and shooting three people in the head (Prosecutor v. Al-Werfalli, ICC, 2017, Public Warrant of Arrest, para. 12). Another video also points to his raising his left hand and sweeping it down as if ordering the execution. Though the source of the video is not conclusively ascertained, the OTP did note that “the evidence supporting the application for the arrest warrant comes from social media posts by the Media Centre of the Al-Saiqa Brigade” (Prosecutor v. Al-Werfalli, ICC, 2017, Public Warrant of Arrest, para. 3). Notably, Article 15(3) of the Rome Statute stipulates that a ‘reasonable basis’ must be established to proceed to the investigation stage, using the available material (Article 15(3), ICC Statute, 1998). Clearly, this threshold has to be met by the OTP and time will tell whether the above arrest warrant was validly issued or not.

The above section is  an important contribution to the discussion of the use of digital evidence since the ICC is the principal court as far as the prosecution of individuals committing heinous international crimes is concerned. Arguably, international criminal justice practitioners have bestowed upon it the status of ‘first responders.’ Hence, the ways of handling digital evidence by bodies of the ICC serve as a reference material for other courts and tribunals.

5 Digital evidence in international criminal law – posing a serious disadvantage to the defence?

In order to uphold the integrity of the criminal justice system, the rights of the accused must always be protected; be it the accused’s right to effective legal representation, defence independence or, chiefly, the principle of equality of arms. The defence cannot work in a dysfunctional setting, especially one that may primarily concentrate on recognising and endorsing the efforts of the prosecution. Justice cannot be meted out if one party is at an obvious advantage and the other’s hands are essentially tied in an inordinate manner (perhaps, due to budgetary constraints, lack of communication, unequal resource allocation etc.). In the Tolimir decision, for instance, the ICTY held that the defence has to prove that the digital evidence submitted by the prosecution is unreliable before admitting any challenge on such grounds. Digital evidence could be construed as that invisible tripwire which aids only the prosecution, perhaps at the cost of defence rights. For instance, when the defence team in the previously mentioned Ayyash case objected to the acceptance of certain aerial images, the STL held that such digital evidence cannot be excluded without a counter-reliability and authenticity scrutiny conducted and proven by the defence (Prosecutor v. Ayyash et al., 2012, STL). It is extremely problematic for the defence to accumulate enough expertise to put forth counter evidence challenging that of the OTP’s since, unlike the prosecution, it does not boast of budgetary leniencies.

A quintessential fair-trial requirement is that of the principle of ‘equality of arms,’ which dictates that at no point during the criminal proceedings should any party “be put in a disadvantaged position vis-à vis the other” (Tuinstra, 2009, Summary). This principle is, however, ignored in ICL trials, and while it may arguably help in achieving the goal of ending impunity, it does so at the expense of the rights of the defence. As noted in the preceding section, judges at the ICC reproached the OTP for not working with the defence during the Katanga trial, particularly in relation to evidentiary submissions (Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 2). In the Ayyash case, the overwhelming amount of digital evidence submitted by the prosecution is so technologically complex that it is nearlyimpossible for the defence to refute it without expending similar resources and comprehending the true import of such evidence (Prosecutor v. Ayyash, STL, Key Developments, Case Timeline). Furthermore, due to budgetary constraints, it would not be feasible for the defence team to formulate and successfully prove its counter theories. Devoid of an abundance of resources at its disposal, defence teams cannot collate sufficient evidence favouring the defendants or debunking the OTP’s technically advanced evidence.

At various international criminal tribunals and courts, the Registry is placed at the helm of the servicing branch. Owing to the fact that it is ordained to fulfil the administrative needs of all the participants, defence interests occasionally take a hit. Setting up a separate body to address the needs of the defence teams could serve as a solution-primer for the above misgivings. A good example of equal representation would be the ICC’s Legal Aid Commission where the defence team may make its own arguments in relation to defence funds  (Tuinstra, 2009, Summary). To encourage transparency for the defence and enable it to participate in the decision-making process, the proposal of establishing a separate defence body could be given some credence. While it is a known fact that members of the OTP undergo regular training in honing their prosecutorial skills for better comprehension of evidentiary methods, the defence body could conduct similar workshops for the defence teams as well. Reducing disclosure obligations only for the defence could also polemically aid in tipping the partisan imbalance scale and righting apparent wrongs, although, as a workable suggestion, it may not be altogether viable. Justice that is seen to favour the ostensibly ‘good side’ is antithetical since its very fulcrum rests on equal treatment of all parties. Nonetheless, one must tread such an unpaved path with caution, since at no point can it lead to friction among the teams or cause conflicts of interest, inadvertently harming the very integrity of the judicial process (Mercuri, 2010, p. 132). In the future, in an effort to understand and appreciate the various facets of potential digital evidence, all the organs of courts may devise a strategy (forging partnerships with technology companies, programmers, government agencies, investigatory organisations etc.) to foresee digital evidence-related complications and counter them effectually (Digital Fingerprints, 2014, p. 12).

6 Conclusion

The increased reliance on digital technology in every single aspect of our lives is an irrefutable fact and it would not be a hyperbolic prediction if one were to hypothesise that we will be inextricably woven to its clutches as time progresses. We live in an era spearheaded by technological revolutions and the universal acceptance of the unfettered dependence on digitalisation must be viewed with a certain level of apprehension. The criminal justice system is also caught up in the technological web, be it in the national or international jurisdictions. Anyone who perceives digital evidence as a good Samaritan would argue within reason that the use of digital evidence has made the justice system more efficient, rendering quick yet effective decisions (Susskind, 2010, p. 166). Remarkably, digital technology “is held by many to be if not the panacea then at least a fundamental building block in any credible attempt to reform the criminal justice system” (Susskind, 2010, p. 160). However, those who err on the side of caution would contend that the existence of an unmanageable amount of digital evidence may create a backlog (Goodison et al., 2015, p. 15) and torrentially disparage the quality of evidence submitted in international criminal trials.

Specifically, in relation to open-source evidence, which has been gathering specific momentum in ICC trials (or even during pre-trial stages), the OTP is currently collating data from various stakeholders involved in an effort to strengthen the process and comprehend whether any further assistance is required. Concomitantly, the OTP is playing an active role in the formulation of the ‘International Protocol’ that may standardise the use of open-source evidence, which is expected to be up for public viewing soon (Mehandru and Koenig, 2019). Strategic tie-ups with law enforcement agencies, non-governmental organisations and educational institutions were instrumental in ensuring that those practising international criminal trials were kept abreast of relevant technological advancements (International Bar Association, 2016, Recommendations, p. 32).

Growing concerns are being voiced out by one and all regarding the negative impacts of the admission of digital evidence and the international community cannot take shelter in its ‘tunnel vision’ of securing the interests of justice in an unfastidious manner, thereby letting inter alia, defence rights (and the right to privacy) take a backseat. Training and funding on all levels (be it for the defence or the victim representatives) may be provided to allow technology to realise its full potential in the evidentiary scheme of the criminal justice system. A structured, cautious approach needs to be taken while espousing the advantages of the ready acceptance of technological innovations within the realm of ICL, preferably resulting in the converging of divergent minds. Law must never act as an afterthought, certainly not criminal law; it must resemble a macrocosm, rather than a microcosm, the whole must always be greater than the sum of its parts.

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Why Is Sexual Violence Such an Effective Weapon of War?

Dawn Stevenson, University of Leeds, UK

Dawn Stevenson studied International Development and Spanish at the University of Leeds. After volunteering with a sustainable development NGO in Nepal for 9 months, Dawn is now working as a Policy Advisor in the Civil Service. Her main areas of interest are human rights, climate change and sustainable agriculture.

Abstract

Sexual violence is one of many war crimes that is effectively and strategically committed to achieve war aims; it encompasses many forms of violence and is perpetrated against victims of all genders during both wartime and peacetime.This paper argues that rape is an extremely effective weapon of war because its multidimensional consequences give rape the powerful ability to destroy not only its victims, but to tear apart their families and communities. It will explore how rape becomes a strategic tool to inflict long-term, devastating and debilitating consequences for female victims, for the men socially connected to them, and equally for their communities and future generations. These consequences are facilitated by gendered structural violence and inequality entrenched in patriarchal (male-centred, structured in sexism) societies and their perceptions of female sexuality and male dominance. These pre-existing perceptions and attitudes facilitate the widespread use of sexual violence as both a deliberate strategy of war and as an outcome of economic grievances.

“We won’t waste bullets on you; we will rape you and that will be worse for you” (Zimbardo, 2007, p. 13)

Sexual violence is one of many war crimes that is effectively and strategically committed to achieve war aims in almost every armed conflict in recorded history (Jones, 2013, p. 1). Until the recent UN recognition of its systematic and deliberate employment as a strategic weapon of war in 2008 (UN, 2014), sexual violence had been perceived as merely a consequence or side effect of war (MSF, 2004). However, brutal and devastating forms of sexual violence are utilized to achieve the military and political objectives of warring factions, to terrorize, displace and destroy ‘enemy’ groups (UN, 2014; Baaz and Stern, 2009; Jones, 2013, p. 2). Sexual violence encompasses many forms of violence and is perpetrated against victims of all genders during both wartime and peacetime. For clarity and precision of focus this article will specifically analyse sexual violence in the form of rape of women and girls. As it is rape that is perpetrated en masse as an effective weapon of war (Farwell, 2004). Moreover, the preponderance of rape warfare is perpetrated against women and girls (UN, 2008).

This article will argue that rape is an extremely effective weapon of war because its multidimensional consequences give rape the powerful ability to destroy not only its victims, but to tear apart their families and communities. It will explore how rape becomes a strategic tool to inflict long-term, devastating and debilitating consequences for female victims, for the men socially connected to them, and equally for their communities and future generations. These consequences are facilitated by gendered structural violence and inequality entrenched in patriarchal (male-centred, structured in sexism) societies and their perceptions of female sexuality and male dominance (Boesten, 2012). Structural violence is defined as violence present not necessarily in direct, physical action but embedded into the political and economic structures of society (Farmer et al. 2006, p. 1686). Many forms of social injustice, including gender inequality and poverty form structural violence because they prevent individuals from realising their physical and mental potential (Galtung, 1969, p. 171). This article will conclude that these pre-existing perceptions and attitudes facilitate the widespread use of sexual violence as both a deliberate strategy of war and as an outcome of economic grievances.

To explore these issues, the article will principally analyse the case study of the Rwandan Genocide (1994), in which systematic, militarised rape was clearly used as a strategy of genocide to achieve ethnic cleansing and displacement of the Tutsi population. It will also draw from comparisons from the lengthy conflict in the Democratic Republic of Congo (DRC) (1997-2003), which provides insight into the complex interplay of the strategic, militarily-commanded use of rape understood by the ‘Rape as a Weapon of War’ discourse (Eriksson Baaz and Stern, 2013, p. 4), and the wartime exacerbation of ‘normal’ sexual violence born of soldiers’ socioeconomic grievances rooted in structural violence. It will explore how in both Rwanda and the DRC, rape warfare perpetrated with the economic goal of extorting personal assets and land by displacing women and communities, thus showcasing the political economy of rape (Turshen, 2001).

Sexual violence as a tool of genocide in Rwanda

We must first examine the use of sexual violence as a tool of genocide in Rwanda and explore why it was so effective in achieving the Hutu war objectives of destroying the Tutsi ethnic group and displacing them from land and assets in order to pillage. During the three months of genocide in Rwanda in 1994, an estimated 800,000 to 1 million Rwandans died, eradicating three quarters of the Tutsi population (Jones, 2013, p. 2). The systematic rape of up to 500,000 Tutsi women perpetrated by the ‘Interahamwe’ Hutu militia groups, civilians, and soldiers of the national Rwandan Armed Forces (FAR) (Human Rights Watch, 1996), was used as a weapon of war and an act of genocide with the intent to destroy the Tutsi ethnic group.

Understanding why rape was used as a weapon to further war objectives in Rwanda necessitates understanding the foundations of the genocide that created those objectives. The root of this genocide was the colonial assignment of distinct races to the previously fluid Hutu and Tutsi ethnic groups, creating “racialized political identities” that were later reproduced by nationalism during the post-colonial Rwandan revolution of 1959 (Mamdani, 2003, p. 144). Rwanda became a ‘Hutu nation’, in which the ‘alien’, non-Rwandan Tutsi aristocracy was seen to be holding a colonial, illegitimate claim to power. This language of political racialisation produced a radicalised Hutu social ideology which was inflamed by the military invasion of the Rwandan Patriotic Army (RPA) of exiled Tutsis from Uganda in 1990, which in turn triggered the civil war. The invasion was seen as an attempt to restore the colonial Tutsi monarchy, which justified brutal Hutu-Tutsi violence to wipe out the Tutsi population, all in pursuit of justice for the Hutu nation (Mamdani, 2003, p. 143, 147).

Genocide can be committed through various methods: by the mass murder and prevention of future reproduction of a victimized group, but also by destroying the cultural and social bonds of that group (Card, 1996, p. 8). In Rwanda, rape was used as a weapon for both strategies in the destruction of the Tutsi population. Firstly, rape was used to control reproduction, to end the Tutsi ‘race’ not only through murder and forced sterilization of Tutsi women by mutilation (Sai, 2012), but also by changing the race of the next generation through pregnancies resulting from Hutu rape of Tutsi women. During the genocide thousands of Tutsi women were gang-raped and raped with objects such as sharpened sticks and gun barrels, to cause life threatening injury and to forcibly sterilize them, to prevent the Tutsi population from bearing children (Human Rights Watch, 1996). In patriarchal societies such as the one in Rwanda, children adopt the father’s ethnicity; hence children of forced pregnancies take the ‘enemy’ group’s ethnicity (Sai, 2012). This ‘deliberate pollution’ of the “bloodlines of victimised populations” (Bartels et al., 2013, p. 341) is a frequent feature of genocidal warfare. It was also employed during the Bosnian war (1992-95), in which the systematic mass rape of an estimated 60,000 Bosnian women was used as a strategy for the genocidal ethnic cleansing of the Bosnian race through forced pregnancies, so that raped Bosnian women would give birth to a Serbian baby (MSF, 2004). The ability of rape to eliminate ethnic populations by changing the bloodlines of the next generation through forced pregnancy makes it a unique tool of genocidal warfare.

Rape warfare is extremely effective in decimating enemy communities because of its multidimensional, devastating and long-term consequences for raped women in the aftermath of their abuse. Many women raped in conflict are killed directly after or die from their injuries (Card, 1996, p. 8), whilst survivors can suffer life-threatening and long-term physical injuries from rape and/or mutilation (MSF, 2004). Many victims are also deliberately infected with HIV, which in fact led to an epidemic in Rwanda (Park, 2007, p. 15). Psychologically, sexual violence is used to intimidate, threaten and keep women in a state of fear (Brownmiller, 1986). In Rwanda, the Hutu population was encouraged to “use rape as a tactic of terror and spiritual annihilation” (Jones, 2013, p. 2), stripping Tutsi women of their dignity and identity (Sai, 2012) and causing long-lasting trauma (MSF, 2004).

Another factor that contributes to the efficacy of sexual violence as a weapon of war is that perpetrators of rape warfare have historically maintained impunity from retribution (Falcon, 2001). Despite its recent recognition by the UN and international community as a global security problem (Eriksson Baaz and Stern, 2013), rape remains one of the most “under-reported and inadequately prosecuted of all war crimes” (Allen, 2007; Jones, 2013, p. 1). The stigma and socioeconomic consequences for sexual violence victims, rooted in patriarchal gender inequality, reinforce impunity. As the vast majority of women who suffered rape and other forms of sexual violence in both Rwanda and the DRC did not report or reveal the abuse they went through due to fear of rejection and ostracization from their community (Human Rights Watch, 1996). Moreover, sexual violence is not sufficiently addressed in post-conflict reconstruction and transitional justice programs. The impunity of sexual violence is important to consider because a lack of deterrence “only perpetuates its use and lessens the likelihood that perpetrators will face justice for their transgressions” (Jones, 2013, p. 2) as well as reinforcing the image of a soldier’s entitlement to rape as a spoil of war (Falcon, 2001).

The physical and psychological trauma of rape is exacerbated by its socioeconomic consequences that are underpinned by gender inequality and patriarchal perceptions of women and female sexuality. This gives sexual violence the ability to destroy not only its victims, but also their families and communities. The importance of women’s sexual virtue and the prizing of female virginity means that raped women suffer from great stigma and shame. Survivors are commonly ostracised by their families and communities (Nolen, 2009) and are vunable to reintegrate into society. The husbands of rape survivors are also considered shamed, thus raped women are often rejected by their husbands (2009), especially when left with pregnancies and children from rape Thereby they lose their access to land and economic sufficiency, thus being forced to live in isolation and poverty (MSF, 2004). In this way, because of the structural violence of gender inequality entrenched into patriarchal societies, rape can tear apart families and communities, and create a population of landless, ostracised women in extreme poverty, transforming rape into “a kind of slow murder” (UN, 2008). Therefore, underpinning the power and efficacy of sexual violence as a weapon to dominate, destroy and humiliate enemy groups and the choice to use this method, is the cultural emphasis on women’s sexual virtue and on controlling female sexuality, founded on normalized gendered violence and gender inequality (Eriksson Baaz and Stern, 2013, p. 4).  The consequences of rape then reinforce the structural violence of gender inequality, as stigma, shame; social and economic ostracization and poverty exacerbate the already subordinated position of women in society, forming a continuity of violence against women, both structural and direct.

Women’s bodies as a battleground

Perpetrators exploit cultural conceptions of women’s sexual virtue and of men as protectors, to destroy individuals, families and communities through brutal forms of rape. In Rwanda, mass rape was used to tear apart communities and eliminate the cohesion of the Tutsi population. Frequent and brutal patterns of sexual violence during the Rwandan genocide included rape in the presence of family members, and equally witnessing the torture and murder of relatives (Human Rights Watch, 1996). This method was also employed in the Rape of Nanking during World War II, where Japanese Imperial Army soldiers gang-raped tens of thousands of Chinese women and girls, including the frequent use of forced rape between family members upon threat of death and forcing victims to watch the rape of their relatives (Jones, 2013, p. 1). These patterns exhibit a “calculated employment of psychological warfare aimed at reducing the cohesion of family units and the community as a whole” (2013, p. 1). The fundamental function of rape is the assertion of a “cross-cultural language of male domination” (Card, 1996, p. 11) by which perpetrators dominate and humiliate not only their female victims but also the men who consider themselves protectors of those women – husbands, fathers and brothers: “you destroy communities. You punish the men, and you punish the women, doing it in front of the men” (UN, 2008). The way women and girls are raped to humiliate and dominate their male relatives reflects the entrenched, structural, gendered violence they suffer, as “their bodies become a battleground over which opposing forces struggle” (Park, 2007, p. 15). Built upon these foundations, the multi-dimensional destructive consequences of rape are particularly effective in damaging familial and community cohesion (Card, 1996, p. 11) and are strategically employed to achieve “genocide by cultural decimation”, rendering mass killing unnecessary (1996, p. 8).

The mutilation of breasts and genitals that was perpetrated en masse alongside rape during the genocide formed part of a campaign of terror and “intimidation in its most malevolent form” (Jones, 2013, p. 2) and showcased the efficacy of rape and other forms of sexual violence as a weapon of war. This pattern reflected the hate media propaganda that portrayed Tutsi women as overtly “sexual weapons that would be used by the Tutsi to weaken and ultimately destroy the Hutu men” (Sai, 2012). As well as mutilations that took away distinctly Tutsi, ‘Hamitic’ features, the breasts, vagina and pelvic areas of victims were sometimes mutilated with machetes, sticks and boiling water following rapes (Human Rights Watch, 1996). Moreover, during the war and genocide women were more often raped out in the open than in their homes, often killed directly after they were raped, and “left splayed on public roads… with mutilated genitalia” (Sai, 2012). The horrific brutality of these assaults displayed publicly enacts symbolic violence, in that it sends the clear message of terror that “this can happen to you” (2012), validating Brownmiller’s (1986) assertion that through rape, “all men keep all women in a state of fear”. The clear patterns of mutilation show and symbolize the extreme bodily (re-)assertion of male Hutu dominance over Tutsi women and their sexuality, and over the whole Tutsi population, again exemplifying a war being fought over women’s bodies, which become the battleground for the humiliation of the enemy (Réseau des Femmes pour un Développement Associatif, 2005) (Park, 2007, p. 15).

A further purpose for using rape as a weapon of war in Rwanda was to disperse or forcibly relocate Tutsi communities, not only for ethnic cleansing, but strategically for the extortion of land and assets (UN, 2008). This was rooted in underlying Hutu grievances caused by the structural violence of social inequality between Hutus and Tutsis, entrenched by the colonial legacy of Tutsi aristocracy, which justified the extortion or ‘taking back’ of land from Tutsi families. Furthermore, the civil war legacy led to mass displacement, with 15% of the Rwandan population living in camps by 1994 (Mamdani, 2003, p.147).  The “plight of the displaced spread fear”, with hate media propaganda playing a crucial role in creating the discourse that if the Tutsi returned to power, the ‘Hutu nation’ would “lose both their land and their freedom, in short, everything” (2003, p. 147). Therefore, during the genocide, soldiers seized the property of widows whose husbands they had killed, acquired land through forced marriage to their victims, and pillaged the houses and possessions of those they raped (Turshen, 2001, p. 7). Some village massacres and mass rapes were committed for the prospect of acquiring land and assets (2001, p. 7) by killing the inhabitants and/or terrorizing them into fleeing their homes.

Rape for the extortion of assets: the case of the DRC

The effectiveness of rape as extortion of assets has also been a major objective of its mass perpetration during the lengthy conflict in the Eastern Democratic Republic of Congo (DRC). Sexual violence has been a ‘defining feature’ of the war, making it the clearest “example of brutality and [the] widespread nature of rape in modern-day conflict” (Bartels et al., 2013, p. 307), with currently approximately 1.8 million Congolese women having been raped in their lifetime (Hirsh and Wolf, 2012). Mass, brutal rape of civilian women was used to “destabilize, dominate and destroy entire communities” by up to 20 armed ‘warring parties’ in the Eastern DRC fought for control over the region’s vast reserves of gold, diamonds and other minerals (Bartels et al., 2013, p. 307) (Dettke, 2012). Clear patterns in the perpetration of rape show that it was committed systematically and strategically for the economic objectives such as wresting personal assets and land from women, creating the political economy of rape (Turshen, 2001, p. 1). Most rapes were perpetrated by armed combatants, and the livelihood of the majority of female victims was in agriculture, which gave them access to the valuable assets of land and livestock (Bartels et al., 2013, p. 332). The majority of rapes were committed inside the victims’ own home and in their fields, often in the presence of husbands and children (Hirsh and Wolf, 2012), and often with extreme brutality echoing those in Rwanda, including forced rape between victims, rape of the very young, old and pregnant, mutilation and murder (Bartels et al., 2013, p. 350). These patterns clearly showcase rape perpetrated to terrorize and displace women and communities, leaving abandoned settlements to the persecutors (Dettke, 2012), the power lies in the atrocity of rape which makes it an effective weapon of war.

However, analysis of rape warfare must consider that the causal factors of its perpetration are more complex than ‘simply’ as a deliberate tactic to achieve war aims. For Eriksson Baaz and Stern, the ‘rape as a weapon of war’ discourse can be problematic, because of its seemingly universal conception of rape warfare as a conscious military strategy, ordered and “enforced down the chain of command” (2013, p. 4). In some contexts, this very much is the case: in Rwanda both the killings and the mass, systematic use of sexual violence of the genocide are known to have been ordered or encouraged by military and political leaders at both national and local levels to further their political goal – the destruction of the Tutsi as a group (Human Rights Watch, 1996). However, the discourse can exclude the nuanced realities of different conflicts, in which a complex interplay of factors may lead to the perpetration of mass rape by soldiers without strategic orders necessarily being given (Boesten, 2010, p. 111).

In the DRC, the mass use of sexual violence in the conflict reflected the opposite: the breakdown of discipline and control in military structures, allowing soldiers to manifest their social and economic grievances into sexual violence (Eriksson Baaz and Stern, 2013, p. 4). Ethnographic research with soldiers in the DRC has shown clearly that individual perpetration of rape is very often directly caused by economic grievances and frustrations. Many militias in Eastern DRC are unpaid, with soldiers having little or no access to resources, making their living from extorting the population when possible in order to survive. Militias are dysfunctional and undisciplined, with combatants poorly trained, therefore rape becomes an ‘ideal’ and effective tactic to facilitate soldiers’ pillaging of local villages, that soldiers rely upon to meet their material ‘needs’ (Bartels et al., 2013, p. 342), without being a necessarily mediated and ordered warfare strategy. Interviewed soldiers said they had never received specific orders to rape, rather they had the attitude that rape is unavoidable in conflict situations (Eriksson Baaz and Stern, 2010, p. 31), and that rape was tolerated (even if not ordered) by their commanders. Furthermore, many soldiers claimed that poverty was their main reason for perpetrating sexual violence as well as other forms of violence, both to facilitate pillaging, and in their resorting to force to fulfil their sexual ‘needs’, being unable to “get a woman the normal way” without money (2010, p. 31).

Therefore, it can be said that the structural violence of extreme poverty can produce opportunistic rape (Boesten, 2010) within a patriarchal society that normalizes violence against women. From their justifications for rape, it is clear that in reality, widespread perpetration of rape by soldiers in the DRC (as in all conflicts), is caused not only by an ordered strategy but also influenced by the interplay of many contributing causes. These include ideas of militarised male sexuality that make them feel entitled to rape, and justify sexual violence as a ‘normal’ and ‘unavoidable’ consequence when combatant men are deprived of sex (Eriksson Baaz and Stern, 2010, p. 32). Moreover, pre-existing patriarchal perceptions of women as sex objects and of rape as a legitimate ‘spoil’ of war (UN, 2014) justify perpetration of the mass rape of women, and are exploited during conflict, facilitating the targeting of women through sexual violence as a weapon for achieving war aims. The intersection of normalized, gendered violence, and extreme wartime violence can be seen here: research shows that sexual violence is perceived as normal by communities in Eastern DRC (Hirsh and Wolf, 2012), and wartime violence is the “magnification of existing institutionalized and normative violence against women” (Boesten, 2012, p. 7). Therefore, the efficacy of sexual violence to achieve war aims, as both a deliberate strategy of war and as the outcome of economic grievances, is facilitated by pre-existing perceptions and attitudes which embody gender inequality and normalized gender-based violence, for “what people tolerate in peace shapes what they will tolerate in war” (Nordstrom, 1997, p. 1).

Conclusion

Sexual violence becomes an inexpensive and readily available yet extremely effective tool to achieve war objectives (Nolen, 2009), because of its immense impact that destroys and displaces communities (Bartels et al., 2013, p. 352), eliminating the cohesion of opposition and providing opportunities for perpetrators to pillage assets and extort land from their victims (Dettke, 2012, p. 2). Though not the only war crime that is used as a weapon to achieve these purposes, sexual violence has a unique ability to destroy its victims physically, socially and economically and tear apart their families and communities, stripping the humanity not just from the victim but from the group she is part of (Eriksson Baaz and Stern, 2013, p. 54). Held up by the structural gendered inequalities and perceptions of women in patriarchal societies, the consequences of rape devastate not only the victim but humiliate and destroy her family and community. The brutality and horror of rape perpetrated in warfare are so effective in terrorizing the population and preventing rehabilitation that they facilitate its use as a tool to achieve ethnic cleansing and displacement. The ability of rape to forcibly sterilize an enemy population and to ‘pollute their bloodline’ by changing the ethnicity of the next generation also make it a unique strategy of genocidal war. Moreover, whilst other war crimes face consequences in the post-conflict period, perpetrators of rape warfare commonly face no retribution. However, analysis of the complex interplay of contributing factors to the widespread use of rape in warfare, including the manifestation of economic grievances and brute poverty, and the exacerbation of pre-existing normalized sexual and gendered violence, shows that one cannot only conceptualize its use through the ‘weapon of war’ discourse, but must also consider these factors to gain a clearer understanding of the realities of rape in warfare.

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Transitional Justice: A Tool of Elite Manipulation? A Constructivist Analysis of Gross-Abuse in Kenya and Rwanda

By Alisha Lakhani

Alisha Lakhani is a graduate in Arabic and International Relations from the University of Leeds, with a keen interest in constructivist norm theory and transitional justice.

Abstract

Since its inception in the 1990s, significant concerns have been raised regarding the implementation of transitional justice and the abuse of its mechanisms. The purpose of this paper is to determine the extent to which the noble ambitions of transitional justice have been co-opted by political elites to serve vested interests. Whilst gross abuse of state institutions and processes is not a new phenomenon, using a constructivist lens unveils the sheer scope of elite manipulation. In this paper, norm theory is used to analyse transitional justice mechanisms in Rwanda following the genocide in 1994, and in Kenya following the outbreak of electoral violence in 2007. The paper addresses the abuse of transitional justice mechanisms through positing a three-tiered narrative which explains how leaders consolidate personal political power as well as party dogma. Firstly, elites create a state-directed version of truth which is later institutionalised as collective memory, and ultimately history. Secondly, all opponents are characterised as the ‘other’ and enemies of state through manipulating these mechanisms. Finally, notions of justice are mobilised to claim ‘liberation’ is under threat to justify elongation of political mandates. This paper demonstrates how elites mobilise transitional justice to serve their own agenda. Fundamentally, this paper reiterates the fact that transitional justice is a definitional project with both causal and constitutive effects, which render it vulnerable to abuse.

Introduction

This essay argues that transitional justice mechanisms are heavily instrumentalised by political elites in order to serve their vested interests. This conclusion was reached through an examination of the transitional justice processes that were introduced in Rwanda following the 1994 genocide and in Kenya following the 2007 post-election violence. A constructivist theoretical paradigm is utilised as it offers interesting insights into the ways in which transitional justice mechanisms are employed by elites to carry out their agendas, as well as the implications of such practices. Constructivists argue that although there is an objective reality, it is not simply a product of physical manifestations; it is also socially constructed by ideas and other forms of cognitive structures (Adler, 1997, pp. 319). With this in mind, it is necessary to consider the nature of justice and the mechanisms within which it manifests. As Nouwen and Werner (2015, pp. 176) highlight, “numerous articulations of justice co-exist, overlap and compete”. Furthermore, Acharya (2013, pp. 467) argues that ideas and norms, in this case, the norm of ‘justice’, have causal and constitutive effects. Therefore, it is necessary to consider who is responsible for the articulation of this norm as well as its reproduction, as it represents a form of agency.

Historically, transitional justice mechanisms adopt either a restorative approach, which can entail Truth and Reconciliation Commissions (TRCs) and provision of amnesties, or a retributive approach which can entail international, national and grassroots criminal tribunals with the end goal of punitive punishment, although there are elements of both in most transitional systems (Mallinder, 2007, pp. 208). If one considers the constructivist notion that there is rarely such a thing as value-free knowledge (Adler, 1997, pp. 336), an important question arises pertaining to the scope of elite manipulation and the extent to which such manoeuvrings have impacted and infiltrated norms of transitional justice and their application. It is argued that one-way in which transitional justice mechanisms are utilised is by constructing a version of ‘truth’ which downplays the serious transgressions of the political elite as well as those of the parties they represent. Elite political actors attempt to institutionalise this version of ‘truth’ to form a collective memory or ‘history’, which is particularly problematic as those “who control the past, control the future” (Orwell, 2004, pp. 44). Another way in which elites mobilise transitional justice mechanisms is through creating an enemy or an ‘other’. This is a concerted strategy employed by political elites to neutralise any perceived threat; whether that is domestic or international, material or fictitious. Finally, political elites also manipulate the ambitious, and some may contend, utopian aims of transitional justice (Campbell and Turner, 2008) to claim that it has not been fully actualised. This allows elites to elongate the transitional period, as well as their political mandate, by claiming that the process of liberation is under threat and that a particular party or a politician alone possesses the skill and foresight to protect it (Beresford et al., 2017). This paper argues that due to elite manipulation, transitional justice mechanisms are undermined and, as a result, lasting peace and reconciliation has yet to be actualised both in Kenya and in Rwanda.

Transitional Justice: A Discursive Tool

According to McAuliffe (2017, pp. 44), “transitional justice does not happen in a political vacuum, it always challenges an existing order that did not permit such progress to develop organically”. As this paper shows, in Kenya and Rwanda, political elites have re-articulated notions of justice to safeguard against any assault on their political power and authority. As aptly iterated by Miller (2008, pp. 267), transitional justice is, at heart, a “definitional project” and therefore it is subject to the whims and caprices of those who are part and parcel of its establishment, institutionalisation and enforcement. However, in relation to political elites, manipulation of transitional justice mechanisms is not simply a whimsical act devoid of intent; it is rather a concerted strategy employed to entrench personal power, cement party dogma and to secure political capital and legitimacy. As this paper argues, in Rwanda and Kenya, this is actualised through the creation and reproduction of a singular, prescribed narrative of ‘truth’. Through its replication and institutionalisation, this version of truth is characterised as collective memory, ergo history. This is of paramount importance as history frames the past and has the capacity to frame our present and our future.

One such transitional justice mechanism employed to create and promulgate state-directed versions of events are the gacaca courts in Rwanda. These were introduced by the Rwandan Patriotic Front (RPF) in 2002 in order to facilitate the expression of ‘truths’, to promote reconciliation, to eradicate the culture of impunity, in addition to expediting the trials of suspected génocidaires (Scanlon & Motlafi, 2010, pp. 302). However, it is argued that despite these lofty aims of the gacaca courts, they are not much more than a vehicle to disseminate state-imposed versions of events. This argument is supported by Corey and Joireman (2004, pp. 86) who claim that the jurisdiction of the gacaca courts were deliberately limited by the regime in order to exclude testimonies of Tutsi atrocities, thereby exonerating Tutsi and RPF violations which includes the massacre of civilian Hutu populations, during the genocide as well as after the establishment of the new regime. The characterisation of Tutsi transgressions as a ‘war crime’ and Hutu offences as ‘a crime against humanity’ is part of a concerted strategy to downplay the gravity of RPF and Tutsi crimes. Not only do the political elite define who is to blame for the outbreak of conflict, they are also instrumental in determining what constitutes a crime, as well as who may be considered a victim and whom the perpetrator. Such narratives of blame hold tremendous power as they are utilised to entrench systems of oppression and inequity against certain echelons of society whilst empowering others, thus demonstrating the manipulation of transitional justice mechanisms for political gain.

In Rwanda, systems of oppression operate along ethnic cleavages. Rentyjens (2006, pp. 1110) defines this as the ‘Tutsi-isation” and “RPF-isation’ of Rwanda, which is evident through their exclusive monopoly of public institutions and positions of power. Statistics reveal that in 2000, 70\% of the most prominent positions of office were held by Tutsis; which is concerning as they comprise just 10\% of the population (Rentyjens, 2011, pp. 30). The preferential treatment conferred to the Tutsi population is indicative of the RPF’s formation of a new ‘Akazu’ (patrimonial network) which works to bolster their support, allows the party to acquire legitimacy and to strengthen President Kagame’s hold over the reins of power (Rentyjens, 2011, pp. 30). The term ‘Akazu’ is a reference to an informal grouping of Hutu elites who were closely affiliated to the former Habyarimana regime; it is said that they abided by an extremist ideology and played a significant role in orchestrating the genocide against the Tutsi population (Behuria, 2015, pp. 258). It is of no coincidence that Rentyjens utilises such contentious terminology to describe the actions of the RPF-led regime; it is a damning denunciation. Bratton and Van De Walle (1997, pp. 65-66) argue that political elites acquire support and legitimacy through providing their patrimonial networks with access to state resources. This paper argues that due to the RPF’s authoritarian control over all state resources and institutions, there is no room for contestation of their power which explains their extraordinary success during elections. This is a deliberate strategy employed by the RPF and this paper suggests that the creation of this ‘Akazu’ would not have been feasible had the institutionalisation of a state-directed version of ‘truth’ not occurred. This sentiment is well exemplified by Miller (2008, pp. 280), who claims that “transitional justice mechanisms…are discursive tools, just as much as they are instruments of accountability or reconciliation; they may frame the conflict in one dimension without providing an alternative vocabulary.”

Similarly, in Kenya, transitional justice mechanisms are instrumentalised to create a version of ‘truth’ which portrays the current ruling coalition in a more favourable light. It is argued that this narrative of ‘truth’ is the source of the Jubilee Alliance’s power, legitimacy and support, despite the emergence of damning evidence of “potential crimes against humanity” (Brown et al., 2012, pp. 248). Following the 2007 post-election violence, a Commission of Inquiry revealed the violence in Kenya “followed ethno-religious patterns of party affiliations” (Lugano, 2017, pp. 15). The Commission recommended the creation of a Special Tribunal to investigate these crimes. When this did not materialise, the International Criminal Court (ICC) intervened. The ICC intervention in Kenya was especially controversial due to the revelation of the ‘Ocampo Six’; a list of six high-ranking members of the political elite under investigation for inciting ethnic violence, which was grave enough to be considered a ‘potential crime against humanity’ (GPPAC, 2014, pp. 16). It is argued that the political elite in Kenya downplayed their own role in the promotion of a zero-sum ethnic competition, through creating and replicating narratives which brought the ICC’s legitimacy into question. This strategy successfully allowed the political elite to circumvent both international and domestic scrutiny of their actions. This view is supported by Lynch (2014, pp. 94) who claims that the Jubilee Alliance “reframed the ICC story – at least in the eyes of a significant number of Kenyans – as a performance of injustice, neo-colonialism, and threat to the country’s sovereignty, peace and stability.” Lynch presents a persuasive argument, one which is verified through grassroots, ethnographic research, which consisted of interviews and focus-group discussions as well as election-monitoring processes, TRC participant observations among others (ibid, pp. 95). Moreover, this claim is supported by Lugano (2017, pp. 9) who claims that “the ICC’s intervention in Kenya’s 2007/2008 political crisis was framed as neo-colonialism by two of the accused – Uhuru Kenyatta and William Ruto…which was central to the accused overcoming their ICC stigma.” The institutionalisation of this ‘truth’ to form a collective memory was politically desirable for the elites in question, as it allowed them to circumvent culpability of serious crimes. Ironically, the ICC investigations, which were launched to tackle impunity, have been mobilised to fuel the very culture of impunity it was tasked to eliminate. In this case, transitional justice mechanisms have been re-articulated and instrumentalised to promote injustice. This view is supported by Mueller (2011, pp. 109) who claims that “no high-level figures in Kenya have ever been prosecuted for the increasingly deadly violence surrounding elections since the early 1990s.”

Introducing and reinforcing this discourse within the broader conceptualisation of transitional justice in Kenya worked to secure the identity and power of Kenyatta and Ruto, whilst simultaneously undermining the ICC’s legality. This narrative of ‘truth’ introduced by the political elite portrayed the ICC and the coalition of Kenyatta and Ruto as antithetical to one another (Mueller, 2011, pp. 109). As a result, whilst the political elite entrenched the notion that the ICC is a neo-colonial, divisive institution, they simultaneously propagated the idea that their coalition was one of unity, which brought together the two major ethnic groups: the Kalenjin and Kikuyu; who were bitter rivals prior to this point (Lynch, 2014, pp. 110). This view is supported by Brown et al. (2012, pp. 254) who claim that “shifting alliances by opportunistic ethno-regional power brokers have characterised Kenyan politics. Bitter enemies before one election can find themselves on the same side in the run-up to the next one”. This illustrates the argument that transitional justice mechanisms are employed not only to secure the power of incumbent leaders, but also to ensure continuity of nefarious practices, under the guise of ‘justice’ and ‘reconciliation’. Thus, transitional justice mechanisms in Kenya were manipulated by the political elite in order to deflect criticism, secure personal power for Kenyatta and Ruto as well as to acquire broad-based legitimacy and support for their ethnic patrimonial groups through the creation of an alternative ‘truth’; all under the guise of ’justice’.

The Instrumentalisation of Transitional Justice as a Strategy of Political Abjection

Transitional justice mechanisms are also manipulated by the political elite to create an enemy or an ‘other’. This tactic of vilifying, discrediting and defaming all forms of opposition is a particularly effective method of consolidating power as it allows regimes to rationalise their inequitable treatment of all those who pose a threat to their rule; whether that threat is real or simply fabricated. The instrumentalisation of transitional justice to eliminate opposition is actualised through mobilisation of the state’s version of ‘truth’. If a transitional regime has monopoly over what is considered true, the nature of justice, and of whom are the victims and the perpetrators, then they are also able to instrumentalise this ‘truth’ to demarcate outside groups or ‘others’. This strategy is evident in both Rwanda and Kenya. Both regimes have successfully delegitimised their opposition whilst simultaneously securing their power using political abjection. The term political abjection here refers to a strategy used to obliterate any opposition through defining it as a “malignant threat to the broader social and political health of the nation” (Beresford et al, 2017, pp. 2). By portraying any dissent as “actors who harbour ambitions to return these societies to past instances of mass political violence and neo-colonial relations, [t]hese individuals are said to warrant illiberal state interventions against them” (Beresford et al, 2017, pp. 2).

In Rwanda, the policy of ‘Rwandicity’ has been especially useful in eradicating all forms of dissent, whether that exists at a grassroots level or as a concrete political threat in the national arena. This policy is an integral part of transitional justice in Rwanda as it aims to foster reconciliation of the population through promoting unity by means of stigmatising and criminalising all references to ethnicity (Beswick, 2010, pp. 410). It is argued that this strategy was instrumentalised to burgeon RPF dogma. Moreover, it was not only successful in controlling the dominant population through a “collectivisation of Hutu guilt” (Thompson, 2011, pp. 378), it was also mobilised to contain any and all forms of political dissent. This argument is especially persuasive considering the sheer number of people who have been imprisoned under ‘genocide ideology accusations’, a figure that reached 912 people in 2009 (Rentyjens, 2011, pp. 16). Furthermore, prior to the 2003 elections, the Republican Democratic Movement party (MDR), the sole concrete political contender to RPF power, was abolished for “encouraging ethnic-divisions” (Rentyjens, 2006, pp. 1107). This is not merely a coincidence, but part of a broader strategy to eliminate all forms of opposition and exert authoritarian control over all aspects of life. The RPF would have been unable to wield such authoritarian power if not for the gross abuse of transitional justice mechanisms. This tactic has been incredibly successful in entrenching the RPF’s dominance as it eliminates all possibilities for a truly competitive party politics where there are programmatic differences between parties and electoral contenders; thus, allowing political leaders to retain their monopoly of power indefinitely. Moreover, the veneer of transitional justice shields the RPF regime against international scrutiny and interference which allows them to further their own agendas without restraint.

Similarly, in Kenya transitional justice mechanisms were manipulated by political elites in order to delegitimise the opposition. This was actualised on both national and international fronts. Firstly, the coalition of Kenyatta and Ruto manipulated transitional justice mechanisms to delegitimise the ICC’s investigation into the post-election violence (Lynch, 2014, pp. 105). This was politically expedient as the ICC had the potential to destroy the political careers as well as the personal lives of the politicians concerned, thus posing an existential threat to the leaders as well as the political parties they represent (Lynch, 2014, pp. 105). The political elite created, reproduced and propagated the notion of the ‘other’ in order to neutralise this menace. Dichotomous characterisations of the ICC as a neo-colonial invader and a western stooge stood in stark contrast to Kenya, a victim of colonialism, once again under attack from the same, insidious threat (Lugano, 2017, pp. 11). This argument is supported by Lynch (2014, pp. 106) who posits that Kenyatta and Ruto consciously portrayed themselves as “defenders of Kenya’s sovereignty and independence against Western interference…everything was cast as a competition between patriotic Kenyans and a patronising international community”. This dichotomy was further entrenched through characterisations of the ICC as antithetical to the Jubilee Alliance, which were widely circulated by these political actors (Lynch, 2014, pp. 106). The elite focused on the retributive nature of the ICC whilst contrasting it with promises of peace and reconciliation through restorative means under their coalition (Lynch, 2014, pp. 106). The manipulation of transitional justice mechanisms such as the ICC was integral to the success of the Jubilee Alliance. The creation of an ‘other’ was a central tenet of the coalition’s tactic of political abjection and it was highly successful as evident through the victory of the Jubilee Alliance in the 2013 elections, one which was characterised as “a referendum on the role of the ICC and its attendant neo-colonialism” (Lugano, 2017, pp. 11).

Additionally, the Jubilee Alliance utilised transitional justice mechanisms in order to vilify and defame political opponents on the domestic front. This is supported by Brown et al. (2013, pp. 253) who claims that the ICC is a useful tool to remove political rivals, both within a party and amongst opposition groups. The creation of an ‘other’ was salient in delegitimising the Alliance’s only concrete political opponent: Raila Odinga. The political elite capitalised on Odinga’s role in facilitating the ICC’s intervention in Kenya, and used this association to categorise him and the Luo minorities as ‘enemies of Kenya’. This argument is supported by Lynch (2014, pp. 109) who claims that “Jubilee effectively recast overarching narratives…regarding the ICC and Odinga, in such a way that individual and collective interests became intricately intertwined with one’s ethnic identity. The ICC’s intervention, for example, becoming not only an example of a political and biased court, but a process through which Odinga and ‘the Luo’ sought to tarnish ‘the Kalenjin’ as perpetrators, and to remove ‘the Kikuyu’ from power.” This demonstrates how transitional justice mechanisms are manipulated as part of a strategy of political abjection (Beresford et al., 2017), which in Kenya entailed creating an ‘other’ so as to firstly paint opponents as the enemy of the state and secondly to unite the rest of the population. It ought to be noted that once again, ethnic identities were mobilised for political gain, however, this time, it occurred under the veneer of transitional justice. The mechanisms which ought to facilitate reconciliation are mobilised to reignite ethnic divisions, thereby sowing the seeds of future conflict.

The Mobilisation of Transitional Justice to Indefinitely Prolong Political Mandates

Another tactic which is employed by political elites is the manipulation of transitional justice mechanisms to prolong political mandates. According to Galtung (1969, pp. 183), peace is not simply the absence of physical violence (negative peace) but also the absence of structural violence and inequalities (positive peace). Therefore, he argues that transitional justice should aim to establish positive peace in order to actualise true justice and reconciliation. However, it is argued that political elites have sought to capitalise on this extended articulation of justice to extend their political terms as well as to entrench their power and bolster their identities. Beresford et al. (2017, pp. 1) proposes a conceptual framework of ‘liminality’, which is particularly useful in examining how regimes retain characteristics of a hybrid system as a tactic to consolidate power. Hybrid democracies describe regimes where procedural elements of democracy are fulfilled whilst retaining authoritarian control over all elements of life (Heynes, 2001, pp. 12). Rwanda and Kenya both exemplify a ‘liminal state’.

Through utilising the ‘productive liminality’ framework (Beresford et al., 2017), Rwanda and Kenya, political elites have successfully mobilised liberation discourses to maintain their power and influence. Firstly, the RPF and Jubilee Alliance have disseminated their version of ‘truth’ which is later institutionalised into the collective memory of the population. This ‘truth’ claims that these parties have ‘liberated’ the population from ethnic violence and or genocide; therefore, it has been a source of peace and justice in the country. Through creation of an enemy or an ‘other’, these parties simultaneously target their political opponents whilst rationalising the implementation of extreme, authoritarian practices. Furthermore, the political elite claim that complete liberation has yet to be achieved as structural violence remains prevalent, which is then used to justify a prolonged mandate. This three-tiered strategy is particularly effective in consolidating political power, legitimating authoritarian rule and eliminating all form of dissent and opposition, thus demonstrating the degree to which politicians manipulate transitional justice articulations and mechanisms for their personal and political gain. This was apparent in Kenya in the recent 2017 election, which demonstrated that little has changed: “Voting patterns are still set up as ethnic blocks…The politics of tribe and patronage persist, political change trickles along, with little sign of a variation in the personalities dominating the space, or any shift in ideology” (Wesangula, 2017). Similarly, in Rwanda, President Kagame has held the reins of power for over 17 years and with the 2015 constitutional amendment, he is set to be in power till 2034 (Burke, 2017).

Conclusion

This essay examined the mechanisms of transitional justice adopted in Rwanda and Kenya to actualise peace and reconciliation following the outbreak of mass violence, as well as the ways in which these processes have been hijacked in order to serve personal as well as political vested interests. A constructivist theoretical framework has established that concept of justice simultaneously constructs and is constructed. Based on this analysis, this paper argues that transitional justice mechanisms ion Rwanda and Kenya have been mobilised to create, disseminate and propagate a state-sanctioned version of ‘truth’. Political regimes then endeavour to institutionalise this truth into a collective memory, ergo history, which further reinforces their power, increases their legitimacy and extends their influence. Additionally, regimes utilise transitional justice mechanisms to create an enemy or an ‘other’ in order to remove any opposition or political rivals. Furthermore, political elites often manipulate transitional justice mechanisms to prolong their political mandates as well as that of the parties they represent. The various means adopted by political elites demonstrate that transitional justice mechanisms are to a large extent instrumentalised for personal and political gain.

This paper has largely focused on the agency of political leaders in Rwanda and Kenya and their role in creating articulations of justice, which serve their vested interests. However, an area which has yet to be considered is the notion that “identities, interests and behaviour of political agents are socially constructed by collective meanings, interpretations and assumptions about the world” (Adler, 1997, pp. 324). Reflecting on this, to what extent are the actions of leaders in Kenya and Rwanda the product of individual motivation? Or is it the result of institutionalised practices?

Such questions raised in this paper are particularly relevant as transitional justice mechanisms are becoming institutionalised and reproduced sporadically across Africa as well as throughout the world. There is a very real, pervasive fear that the “the same mistakes may easily be perpetuated, in a way that bespeaks not a conspiracy of interests but a coherence of blindness” (Miller, 2008, pp. 272). Unfavourable practices and abuse of transitional justice not only serve to increase the propensity for physical violence; they also increase the prevalence of structural constraints, which undermines the core aims of transitional justice and thus jeopardises the prospects of genuine peace and reconciliation in the region. Thus, it is necessary to consider the ways in which these mechanisms are instrumentalised in order to safeguard against its abuse.

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