Then: co-counsel for the prosecution,
Office of the Prosecutor vs. Jean-Paul Akayesu
Now: senior counsel, us program for human rights watch
Q: The Akayesu case happened 17 years ago—did you ever think it would be made into a film?
A: No, I did not! I assumed it was a story I would bore my grandchildren with, and that it was not ever going to be more widely known. Periodically, I’ll get a call from grad students who are doing a thesis on rape as a war crime. But, in general, the story is one of those things when we lived it, circumstances were often so absurd that we thought no one would ever believe it or that it would lead to such a positive outcome.
Q: You have previous experience working in Africa and the Balkans.
A: I interviewed Bosnian Muslim refugees who were victims of sexual violence for the State Department in 1993. Before that I spent a year working with refugees for International Rescue Committee in Sudan, Kenya and Sierra Leone. I also spent a summer in law school monitoring violence in South Africa and then went back as an election monitor during the 1994 presidential election in South Africa, when Nelson Mandela won the presidency.
Q: In the film, you say that your first words in Rwanda in 1995 were “fuck, fuck and fuck.”
A: I am sure I ended up swearing while I was there a lot more than usual. When I arrived I was naive about the tribunal and the UN. The tribunal was still in its very early stages, and they had not figured out how to meld a justice system with a typical UN field mission. We couldn’t get cars to travel anywhere; we couldn’t make calls to our witnesses because some personal phone bills had not been paid. It was frequently mind-blowingly disorganized and dysfunctional. Much of the time I was just hoping that our work would have a decent outcome, and not be something that went down in flames.
Q: You were only 27 when you started working on the Akayesu case. How did you become a legal officer?
A: There was almost nobody in the tribunal office when I got there. After a few weeks, 20 Dutch police officers arrived on loan from their government. And then we got a call out of the blue from the Zambian government saying that they had seven people from our most-wanted list. At the time there were not many people with legal training on hand, so I was de facto made into a legal officer. So that was it. I ended up getting all this responsibility, just by virtue of being a lawyer amongst policemen, even though I had no experience drafting indictments. I often thought, “Oh my God, I better not screw this up.”
Q: The Akayesu case isn’t the one that springs to mind as the “first” genocide—or rape—case to go to trial.
A: How it came to the office really still boggles my mind, or that it ended up being such an important case given such an inauspicious beginning. When I presented the indictment itself, there was no courtroom; it was all very ad hoc. I met with a judge in an office. Then, of course, interviewing Akayesu himself in a Zambian prison. The whole thing just seemed surreal.
Q: You inadvertently came up with the witness protection system of using letters instead of names when you wrote the first-ever indictment for genocide, a system that is still used today in international criminal courts. [I am not sure about whether they were doing this at ICTY before – also this was not very innovative!]
A: The one thing going in my favor as an inexperienced lawyer was that there was no prior practice that I was at risk of subverting. You couldn’t say, “Ok, this is totally contrary to what all the other tribunals are doing, or what we’ve been doing in the past,” because it was all so new. It was okay to make things up as we went along using common sense as a guide. Although some of those things were better than others and it was surprising to see what stuck.
Q: Akayesu was your first suspect interview ever. Was it unusual to interview the defendant?
A: In the US justice system, it would be unusual. But in Belgium, where Akayesu’s lawyer was from, prosecutors regularly interview the suspect, because they’re trying to determine what happened. It’s less adversarial. It was so early in the tribunal process that nothing was usual or unusual. I think Akayesu was hoping that he would charm us into not charging him. He was friendly and very talkative.
Q: Do you have a favorite part of the film?
A: Any time the survivors are on. And I love at the end when JJ says, “Oh it was worth flying on the plane.” I thought that was great. This story is not an obvious movie story. “Rape as a war crime” seems like something that would not have that much appeal in general to a broad audience. But Michele and Nick made it really suspenseful and also very positive for a film on such a serious subject.
Q: What was it like, in 1997, meeting Witnesses JJ, NN and OO for the first time?
A: I felt very protective of them. It was their first time on a plane, first time out of the country. And I knew they were making a big sacrifice. Seeing them again in the documentary—that was great, great, great. I was very excited and moved to see them and how they’re doing. Their interviews were incredible.
Q: What was your reaction to seeing your former colleagues in the film?
A: They haven’t changed that much! I had seen Binaifer a little at Human Rights Watch, because we overlapped a little bit. And I’d see Pierre once in a while, whenever he was in New York. But I hadn’t stayed in touch with Patricia, whom I admire. Patricia was someone whom I wanted to be like when I grew up. I was excited to work with her. And Rosette—I had lost touch with her, and now we’re back in contact, which is great. We lived together in Rwanda. What was really gratifying to see in the film was people who were involved in the case—like Lisa—who felt like their work had come to nothing find out it did have impact. And also seeing Patricia, who hasn’t gotten the credit that she deserves for the case.
Q: Why do you think rape was not tried as a war crime until 1997?
A: There was a huge gap between Nuremberg and the international tribunals so there just weren’t that many opportunities to try these kinds of cases. Over time there has also been an evolution between thinking of rape as something along the lines of “pillaging,” that it “just happens” as a part of war, that you can’t really control your troops, and that women –and men – are treated as spoils of war. That’s the terrible attitude that people had for so long. Attitudes are shifting.
Q: What impact do you hope this film can have?
A: Anything that raises awareness that this type of behavior is unacceptable and illegal in conflict can only be helpful in moving the ball forward and preventing it from happening again. Nobody wants to be the Akayesu of the next war. Also there are some universalities, some commonalities, to rape. Sexual assaults in the United States look very different than rape as a war crime in a lot of ways, but there are some similarities too, particularly in terms of trauma. Discussions around the film may help people in domestic or non-conflict settings approach this issue in a different way.
Q: With sexual assault used as a weapon of terror by ISIS and Boko Haram, what can be done to build on the precedent set by Akayesu and hold the perpetrators accountable?
A: The problem is that even if it is established under international law that rape is a war crime and is not permissible, which is the case and has been longer than Akayesu, what matters is enforceability. That’s true for all crimes. The law doesn’t act as a deterrent unless people think they’re going to get caught. Unfortunately, for international justice, there are so many obstacles to holding people accountable. The tribunals don’t have their own enforcement mechanism. They have to rely entirely on states to cooperate and arrest people. Unless countries are willing to make arrests and hold people accountable, these crimes are going to continue.