JUSTICE AND RECONCILIATION IN RWANDA SINCE GENOCIDE by gyvwpsjkko

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JUSTICE AND RECONCILIATION IN RWANDA SINCE GENOCIDE
                  Jean Chrysostome Kanamugire

In 1994, Rwanda has experienced genocide and other violations of international
humanitarian law such as crimes against humanity and war crimes. They are all violations
of international humanitarian law. ‘Societies that have suffered mass violence such as
genocide must find ways to confront past atrocities in order to strike a balance between
burying the gruesome past and burying themselves in the memory of it.’ 1 In order to heal
society, Rwanda has ‘emphasised punishment and the need for justice.’2 For this reason,
Gacaca Tribunals have been established to deal with perpetrators of atrocities committed
in Rwanda. In addition, the United Nations (UN) Security Council has made international
Criminal Tribunal for Rwanda (ICTR) with the aim of achieving peace and reconciliation
in Rwanda. After 15 years of genocide, Rwanda still has challenges in achieving genuine
peace and reconciliation. This research will analyse whether Rwandan government, as
well as international community, has achieved peace, justice and reconciliation in
Rwanda. An emphasis will also be put on the way forward.

Challenge of justice and reconciliation in Rwanda

Achieving justice and reconciliation remains a major challenge in Rwanda. ‘From the
beginning, the new government argued that unless the ‘culture of impunity’ was once and
for all ended in Rwanda the vicious cycle of violence would never end.’ 3 This idea was
not shared by all people especially investors. Some donors were interested in the South
African ‘truth and reconciliation’ model but the government firmly rejected it and argued
that ‘only when the guilty had been punished would it be possible for the victims and the
innocent to create a joint future together.’4 For this reason, a focus has been put on the
judicial system.

Many individuals were put in jail without adequate or sufficient evidence. Some judicial
officials tried to maintain the law and integrity of judicial system. They have experienced
challenges in the performance of their functions. In 1994, the Minister of Justice
Alphonse – Marie Nkubito and such subordinates as the protector Francois – Xavier
Nsanzuwera and judge Gratien Ruhorahoza attempted to limit the detentions to those
persons for whom there were credible accusations of guilt. They also sought to insist that
judicial files be promptly prepared to document charges against accused. In late 1994,
judge Ruhorahoza disappeared after having ordered the release of some forty persons,
whom he found had been detained without good cause. He was never seen again and the
military promptly rearrested the persons who had been released.5



1
  RM Borland. The Gacaca Tribunals and Rwanda after Genocide: Effective Restorative Justice or Further
Abuse of Human Rights? at 7.
2
  Ibid 7.
3
  P Uvin Gacaca Tribunals in Rwanda. Case study (116 – 117) at 116.
4
  Ibid 116.
5
  Human Right Watch (HRW). Justice and responsibility; Human Rights Watch/Africa, Rwanda, A new
catastrophe, vol. 6, no. 12, December 1994, p.10.
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Many people were detained and prisons become overpopulated. Experts estimated that it
would take more than a century to finish the trials of the 130,000 persons who were
imprisoned, often in horrendous conditions.6 The other challenge concerned with the
quality of the justice delivered that was deficient. They were too many instances of
investigative bias, corruption of judges, intimidation of witnesses, weak defence counsel
or absence of a defence counsel, and political pressure.7 The government introduced the
Gacaca Tribunals to deal with the problems of overpopulated prisons.

Gacaca Tribunals

The transitional National Assembly of Rwanda formally adopted proposals for the
introduction of the modern gacaca tribunals on 12 December 2000. 8 The Draft Gacaca
Law was declared constitutional by the Rwandan Constitutional Court on 18 January
2001.9 Organic Law No 16/2004 of 19/06/2004 established the organisation, competence
and functioning of Gacaca courts charged with prosecuting and trying perpetrators of the
crime of genocide and other crimes against humanity, committed between October 1,
1990 and December 31, 1994. The amendment to this law has set up the Gacaca court of
the cell, the Gacaca court of the sector and the Gacaca court of Appeal. 10 The current
manifestation of gacaca is based on a traditional practice within Rwandan society in
which members of the community took part in resolving disputes between community
members and in punishing offences committed by individuals within the community.11

Gacaca system has two main objectives: to speed up the trials and empty the prisons, and
to involve the community in establishing the truth and, through that, promoting
reconciliation.12 Confession procedure plays an important role in the Gacaca law.
Prisoners who confess and ask for forgiveness can receive dramatic reductions in
penalties. Reductions are greatest for those who confess before the proceedings against
their start, either while in prison or at the very beginning of the gacaca proceedings, when
they are explicitly asked if they want to confess. However, reductions are smaller for
those who confess only during the gacaca procedure, while penalties are unchanged for
those who do not confess at all but are found guilty. In addition, up to half of the sentence
of convicted can be transmitted into community services (travaux d’interet General), the
modality of which are yet to be determined by further laws.13

6
  HRW Gacaca Tribunal in Rwanda note 5.
7
  Ibid.
8
  C Mibenge Introducing International humanitarian law at the national levels: the Gacaca jurisdiction of
Rwanda’ in Spotlight on issues of contemporary concern in international humanitarian law and
international criminal law at p. 3. For the definition of traditional gacaca tribunal, see F. Reyntjens. ‘Le
gacaca ou la justice du gazon’ at p. 33 available at http://www.politique-
africain.com/numeros/pdf/040031pdf
9
  Mibenge note 8 at 3.
10
   Organic Law No 28/2006 of 27/06/2006. For the law creating Gacaca Tribunals, see Organic Law No
40/2000 of 26/01/2001.
11
   A. M. Pitsch. The Gacaca law of Rwanda: possibilities and problems in adjudicating genocide suspects.
Working paper NUR-UMD Partnership. Center for Development and Conflict Management, University of
Maryland, College Park, USA, August 2002 (1-27) at 3.
12
   Uvin note 2 at 3.
13
   Ibid 3.
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However, the gacaca system suffers from significant limitations. It compromises on
principles of justice as defined in internationally recognised human rights and criminal
law. Furthermore, it could set in motion social dynamics that are unexpected and possibly
violent.14

On the first point, there is no separation between prosecutor and judge, no legal counsel,
no legally reasoned verdict, great encouragement of self-incrimination, and a potential for
major divergences in the punishments awarded.15 In short, the modernised gacaca system
seems to provide inadequate guarantees for impartiality, defence and equality before the
law.16 The accused cannot test evidence presented or given by the witnesses. For these
reasons, gacaca tribunals do not confirm to the international standards and are highly
criticised by human rights defenders and legal experts.

The practice of formal justice, which has been maintained for years with massive
international assistance, also violates human rights. The basic rights to a speedy trial,
reasonable detention terms and decent condition of detention is being violated under the
current practice, and no one has any credible ideas about how to change this.17 There are
individuals who have passed more than 10 years in jails without any charge or files for
their alleged crimes.

On the second point, the potentially positive effects of gacaca in terms of community
participation and victim-centeredness could well be undone by local social dynamics.18
The system can be manipulated by power-holders or leaders.

One factor that can reduce or destroy the potential of gacaca to produce a measure of
truth, justice and reconciliation is interference by power-holders- whether the power they
possess is that of the gun, of money or of the state. Even if most-holders are successfully
excluded from election to the gacaca benches, they will be present during the sessions as
well as the periods in between. For whatever reasons – personal vengeance, political
conflict, issue of land and property, family ties or simply ideology – they may seek to
influence the proceedings.19 Gacaca tribunals have been used by political leaders to
exclude or eliminate their opponents. For instance, the formal presidential candidate, Dr
Theoneste Niyitegeka, has been sentenced to life imprisonment by the Gacaca tribunal.

Rwanda has abolished death penalty on 2 August 2007. This was a major improvement in
promoting human rights. The last executions took place in 1998, when 22 people found
guilty of genocide-related crimes were executed.20 Some individuals were unfairly


14
   Ibid 3.
15
   Ibid 3.
16
   Ibid 3.
17
   Ibid 4.
18
   Ibid 4.
19
   Ibid 5.
20
   Amnesty International 2 August 2007. Rwanda abolishes death penalty. Available at
http://www.amnesty.org/en/news-and-updates/good-news/rwanda-abolishes-death-penalty-20070802
(accessed on 1 April 2009).
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prosecuted. For instance, Mr Callixte Gakwaya was sentenced to death in March 1997
after an unfair trial.

A government spokesperson said the executions, the first in connection with the
genocide, shows it is serious in punishing such crimes. This idea was shared by genocide
survivors. They believed that they have waited a long-time to see justice being done, and
it is hard to find anybody who does not believe the execution should go ahead.

Human right groups and Pope John Paul II questioned whether those who were being
executed were fairly convicted. The Amnesty Secretary – General, Pierre Sane, said: ‘we
do not believe that more killings in Rwanda will be conducive to the healing process and
reconciliation that needs to take place in the country.’ Pope John Paul II sent a telegram
to Rwandan president Pasteur Bizimungu urging him to halt the executions. He wrote: ‘I
beg your Excellency to suspend these judgments with an act of clemency which would
favour the process of reconciliation.’ The former Irish president said: such public killings
could promote feelings of revenge rather than contribute to the process of national
reconciliation.21

When one refers to Rwanda Hutus as ‘moderate’ one is in a way saying that they support
and did support the Tutsi rebel groups who supposedly saved everyone, and specifically
the Tutsi from genocide committed by ‘extreme’ Hutus. And dangerously enough, this
assumes that any dead hutus could not have possibly been killed by Tutsi Rebels, but by
‘Hutu extremists’ who were out to get the moderates due to their moderate status (or their
support of the Tutsi Rebels). And even more so, that that it is impossible to have
extremists among the rebel group.22 This is not correct as there are Hutus who were killed
by Tutsi Rebels from RPF and one also finds extremists among Tutsis.

Since 2004, there has been change on the appellation of events that happened in 1994.
The government of Rwanda decided that the 1994 events will only be called genocide
committed against Tutsis. It includes all Tutsis regardless of their real situation (whether
they were in Rwanda or outside). Therefore, it ignored other crimes such as crimes
against humanity and war crimes committed at the same period. This amounts to a total
denial to recognise that even Hutus were killed. Thus, there are denied to remember or
mourn for their relatives who were killed in 1994 by either party to the conflict. This does
not contribute to the reconciliation of the society. At the 10th commemoration of
genocide, the former president Thabo Mbeki said ‘a time such as this demands that the
truth, the whole truth and nothing but the truth should be told. It should be told because
not to tell it is to create the conditions for the crime to recur.’23 The current situation does

21
   Rwanda executes genocide convicts
   http://news.bbc.co.uk/1/hi/world/Africa/82960stm (accessed on 2 April 2009).
22
   Genius Moderate Hutus and Dead Hutus are he only Good Hutus?
http://backtomyroots.wordpress.com/2008/03/11/moderate-hutus-and-dead-hutus-are-the-only-good-hutus/
(accessed on 3 April 2009).
23
   President Thabo Mbeki 10th year commemoration of genocide in Rwanda on 7 April 2004. Mbeki:
Commemoration of the Rwanda genocide. Available at
http://www.polity.org.za/article/mbeki-commemoration-of-the-rwanda-genocide-2004-04-07 (accessed on
3 April 2009).
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not reveal the whole truth as Hutus are denied opportunity to remember or mourn their
relatives who were killed in 1994 by RPF.

The Gacaca courts (semi-traditional courts) are scheduled to end in June this year at all
levels. According to the schedule of the National Service of Gacaca Courts, all trials
before the gacaca, in appeal and revision, would be concluded by the end of June 2009.24
During 2008, the gacaca courts tried 68,408 cases which were pending by 31 December
2007. The same year was significant because it was also marked by an amendment of the
law which widened the jurisdiction of the gacaca to rape cases. 5 000 cases are still
pending.25

Gacaca does not judge members of RPF for their alleged crimes against humanity and
war crimes that they have committed. The government has refused to allow the gacaca
courts to deal with crimes allegedly committed by the Rwandan Patriotic Front, the Tutsi-
led rebel military army that ultimately toppled the Hutu government and ended the
genocide.26 This does not bring genuine justice among Rwandan society. As a result,
many hutus say they feel the trials are not addressing the whole story of what happened.27
The system intentionally ignores another side of the events and does not reveal the whole
truth.

Fours officials of RPF were arrested on 11 June 2008 for the killing of 3 catholic Bishops
and other 15 clergy at Gakurazo in 1994. This event has followed joint investigations by
Rwandan General prosecutor and prosecutor of the International Criminal Tribunal for
Rwanda (ICTR). However, the ICTR prosecutor, Hassan Jallow, clarified that Rwandan
justice could be dispossessed of the case if the trial would not meet international
standards on the matter. Two officers have pleaded guilty and convicted to eight years
imprisonment, while the other two were found not guilty.28 The matter went to appeal and
the sentence was reduced to five years imprisonment while the Appeal Court confirmed
the acquittal of other two individuals.

On 25 May 1995, the National Assembly of Rwanda voted a motion refusing to bury with
dignity catholic Bishop Hutus killed by RPF at Gakurazo. 29 Hutus are not allowed to
mourn for their relatives who disappeared or were killed in 1994 by RPF soldiers. This
undermines a genuine and true reconciliation among all people of Rwanda. All
individuals who were killed or massacred in 1994 must be remembered and relatives
should be allowed to bury them in dignity.

On 27 July 2007, Rwanda promulgated a legislation to abolish the death penalty. Rwanda
was the first country in the Great Lakes region to abolish the death penalty and become

24
   Gacaca trials to end in June. Hirondelle News Agency 19 January 2009. Available at
http://allafrica.com/stories/200902130595.html
25
   Hirondelle News Agency 16 February 2009 (Gacaca trials to end in June).
26
   Barland note 1 at p. 4.
27
   Ibid.
28
   Hirondelle News Agency 27 October 2008
   www.rwandagateway.org/articles.php.3?id_article=10119
29
   J Gasana. Rwanda de l’etat-parti a l’etat-garnison (2002): 341.
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the 100th country to abolish the death penalty in law. At that time, Rwanda held
approximately 600 prisoners on death row. Despite their sentences being commuted with
the enactment of the legislation, there are continuing concerns regarding the cruel,
inhumane and degrading prison conditions in which those prisoners remain detained.30

Genocide ideology

Genocide ideology is a term used to describe the notion genocide perpetrators used to
instil a hate campaign that creates divisions among two distinctive groups, usually ethnic
groups.31 These ideologies cause differences based on individual characteristic features,
religion, race and tribal sentiments. So, the genocide idea or ideology begins with the
process of identification and stigmatisation of ‘other’ that is, labelling of the ‘other’ and
eventually the separation of the ‘other’ from the rest of ‘us’.32 But, ideologies are usually
baseless and used by leaders to incite hate against one another in order to yield power and
control resources.33 So, genocide ideology can be used as a pretext or strategy to silence
the opponents.

Genocide ideology should not be used to silence other or political opponents in order to
protect one’s ethnic group. Leaders must perform their functions to the best of their
abilities and promote the development of the entire nation. Loyalty must be to the state
and not to particular ethnic group or only to the government of the day simply because
the leadership of that government is predominantly from one’s ethnic group. Political and
military leaders must therefore treat their citizens in a manner that they themselves wish
to be treated after they have left office. Abuse of judicial process in prosecuting the other,
or opposition leaders or former Heads of state without sufficient evidence or reasonable
cause undermine the effort to fight genocide ideology.34 This occurs in Rwanda as they
are still political prisoners who are in jail simply because they are opponents to the
current regime.

Other massacres committed after 1994

On 22 April 1995, two battalions of RPF surrounded Kibeho camp of internally displaced
people in order to close all camps. About 5 000 people were killed. Former Minister of
interior, Sept Sendashonga, tried to go to the scene of event but he was prevented by the
RPA. The president of Rwanda at that time, Pasteur Bizimungu, confirmed that only 300
people were killed. Mr Sendashonga proposed an international commission to investigate
the matter but the government refused. It appointed a commission of investigation which
simply declared that only 330 people were killed in the incident. Shortly, the government
confirmed that only 800 individuals were massacred. The Australian soldiers, who were
in peace mission in Rwanda, counted 4 200 dead bodies before they were prevented by
30
   Amnesty International, public statement 27 July 2007. Rwanda: abolition of the death penalty.
31
   K M David. Rwanda MPs in bid to stamp out genocide ideology. Nation January 17, 2008. Available at
http://politics.nationmedia.com/inner.asp?sid=1284 (accessed on 4 April 2009).
32
   O Odera. Understanding and fighting genocide ideology. The 13 th Commemoration of Rwandan
Genocide at the African Union Headquarter 7th April 2007 at 4.
33
   David note 31.
34
   Odera note 32 at 19.
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RPA to continue to do so. When a Zambian officer in peace mission in Rwanda was
asked to stop killings by RPA, he answered that they had been ordered to cooperate with
Rwandan authorities, not shoot at them, even if they killed innocent people before their
eyes.35 It is estimated that 5 000 people died. Kibeho’s massacre marked the beginning of
misunderstanding between Hutus who were members of the RPF and the Tutsis from the
same party. Some of them had to resign from 1998 to 2000.

The other massacres committed by RPF occurred in 1997. At least 6 000 people – the
majority unarmed civilians – are reported to have been killed in Rwanda between January
and August 1997.36 On 23 July 1997, around 170 civilians were reportedly killed by RPA
soldiers following clashes with armed groups in the communes of Mukingo and
Nyakinama in Ruhengeri.37 In this period, soldiers killed many internally displaced
people and the government confirmed that they have used excessive forces.

The role of international community

In 1994, Rwanda has asked the UN Security Council to create an international criminal
tribunal to prosecute people responsible for atrocities committed in Rwanda in 1994.
Once the UN special rapporteur for Rwanda and a commission of experts named by the
Security Council both concluded that Rwanda authorities had committed genocide and
that soldiers of the RPA were guilty of violation of international humanitarian law, the
Security Council established the international criminal tribunal for Rwanda in November
1994.38 The mandate of the ICTR is to prosecute (bring to book) all individuals, from
both parties to the conflict, who committed violations of international humanitarian law.
The UN Security Council has established the International Criminal Tribunal for Rwanda
in its Resolution 955 (1994) S/RES/955 (1994) of 8 November 1994. Member states
remained convinced that in the particular circumstances of Rwanda, the prosecution of
persons responsible for serious violations of international humanitarian law would
contribute to the process of national reconciliation and to the restoration and maintenance
of peace in Rwanda and in the region.39

However, international effort at justice will only gain full credibility only if the victors in
1994 are held accountable for their alleged violations of international humanitarian law as
the losers are brought to justice for the genocide they executed.40 If only losers are
prosecuted, it will amount to the justice of winners against the losers. This is vengeance
not justice.


35
   Kibeho massacres. Available at http://www.anzacday.org.au/history/peacekeeping/anecdotes/kibeho.html
(Accessed on 6/4/2009); see also Joshua Hammer. Carnage in a crowed camp. Available at
http://en.wikipedia.org/wiki/Kibeho_incident (Accessed on 6 April 2009).
Paul Jordan. Witness to genocide: A personal account of the 1995 Kibeho Massacre. Available at
http://www.anzacday.org.au/history/peacekeeping/anecdotes/kibeho.html (Accessed on 6 April 2009).
36
   Amnesty international 25 September 1997. Rwanda ending the silence (1 – 46) at p. 1.
37
   Ibid 7.
38
   HRW Justice and responsibility
39
   Statute of International Criminal Tribunal for Rwanda (Preamble).
40
   HRW Justice and responsibility.
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After 15 years of its creation, the ICTR has completed 29 cases, eight accused pleaded
guilty and 6 individuals have been acquitted. There are 23 cases in process including one
that is being retried. In addition, 8 accused are awaiting trial, 7 cases are on appeal and 2
cases have been transferred to the national jurisdictions in France. Three individuals had
died, one before trial, the other after his release upon completion of his sentence and the
last one while serving his sentence. The major problem with the proceedings in ICTR is
that some witnesses fabricate evidence and give false testimony. One witness GAA
(ICTR-07-90-R77) pleaded guilty for giving false testimony and was convicted to 9
months imprisonment which he has completed. One person was arrested for contempt of
court and the matter is still on trial. Three people had been released after completing their
sentences and two had their indictments withdrawn due to insufficient evidence. 13
accused are still at large.41

The ICTR has only prosecuted individuals who were members of the former government
and ignores to charge RPF members whose evidences exist that they have violated
international humanitarian law. The UN’s own investigation, Michael Hourigan, first
came across compelling evidence of RPF’s responsibility for assassinating president
Habyarimana and the other unfortunate occupants of his plane. Hourigan resigned after
then a chief prosecutor Louise Arbour ordered him to drop any investigation related to
Kagame and the RPF.42 However it appears that under the pressure of Washington, the
UN agreed to shut down its investigation into the missile. Another UN investigator,
Robert Gersony, came across evidence of RPF atrocities and was also silenced; the UN
stated that his report ‘did not exist’.43

For all of its 15 years of operation, the ICTR, whose brief is to establish the truth of what
happened in 1994, has ruled that the matter of the president Habyarimana’s assassination
(which it chooses to refer to simply as a plane crash) is not within its remit. When one of
the ICTR’s chief prosecutor, Carla Del Ponte, expressed her desire to dust off the
investigation into the allegations against the RPF, stating that ‘if it is the RPF that shot
down the plane, the history of genocide must be rewritten’, she was abruptly relieved of
her position and moved to the Hague.44

The successor of Carla Del Ponte, the Gambian Hassan Jallow, subsequently confirmed
that the shooting down of the aircraft is ‘not a case that falls within our jurisdiction’.45
This is surprising since article 1 of the ICTR Statute provides that ‘the ICTR shall have
the power to prosecute persons responsible for serious violation of international
humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible
for such violation committed in the territory of neighbouring states, between 1 January

41
   ICTR website (http://69.94.11.53/default.htm ) accessed on 4 April 2008.
42
   World News Journal. Kigali re-arrests of RPF suspects in 1994 priests killings, 13 June 2008.
43
   B Collins Rwanda obscuring the truth about genocide. (August 13, 2008). Available at
http://www.globalpolicy.org/security/issues/rwanda/2008/0813rwanda.htm (accessed on 7 April 2009).
44
   Ibid. See also Interview with Carla Del Ponte, Aktuelt, 17 April 2000. Cited in le drama rwandais: Les
aveux accablants des chefs de la mission des Nations Unies pour l’Assistance au Rwanda, E Karemerea,
Editions Sources du Nil, 2006.
45
   Collins note 44; Bush and other war criminals meet in Rwanda: the Great Rwanda Genocide’ coverup, P
Erlinder, Global Research, 20 February 2008.
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1994 and 31 December 1994.’ The shooting of Habyarimana’s plane occurred on 6 April
1994 and falls within the ICTR mandate or competence. Furthermore, the missile attack
was, among other things, a deliberate violation of article 1 of the Arusha Accord of 4
August 1993 which stated: ‘the war between the government of Rwanda and the
Rwandan Patriotic Front is over.’46 As a result, the shooting of the Habyarimana’s plane
was a gross violation of international humanitarian law.

The first ICTR prosecutor, Richard Gladstone, has expressed his view that the plane
attack does fall within the remit of the court and ought to be investigated. ‘It is clearly
related to genocide, by all accounts (it was) the trigger that started the genocide and it
would have been very, very important from a justice point of views, from victims’ point
of view, to find out.’47

The shooting of Habyarimana’s plane and other violations of international humanitarian
law had been under investigation in foreign jurisdictions. In France, the families of
French pilots who were assassinated in the plane shooting brought a case in court and
wanted to know what happened to their husbands so that perpetrators can be punished in
order to ensure justice. Judge Jean Louis Burguiere investigated the matter and concluded
that 9 high officials of the RPF including Paul Kagame, the current president of Rwanda,
were involved in the plane shooting. He made Interpol for responsible people to be
arrested and brought to court to face justice. According to the judicial precedent, current
president, Paul Kagame, could not be indicted and the matter was sent to the UN Security
Council to order the ICTR to indict him. The ICTR is competent to prosecute Paul
Kagame as article 6 (2) of its Statute provides that ‘the official position of any accused
person, whether as Head of State or Government or as a responsible Government official,
shall not relieve such person of criminal responsibility nor mitigate punishment.’48 So,
even the incumbent president or other government officials may be prosecuted by the
ICTR and cannot plead diplomatic immunity.

In Spain also there were investigations of crimes allegedly committed by the RPA/RPF in
Rwanda and in the Democratic Republic of Congo (DRC) in the period of 1990 – 2000.
This investigation has allowed to reveal that RPF, headed by Paul Kagame, is responsible
for three major and closely interrelated blocks of crime: (a) crimes perpetrated against 9
Spanish victims – missionaries and aid workers – whose first priority was helping the
local population and by so doing, were all inconvenient observers of the killings of Hutu
inhabitants in both countries; (b) crime against Rwandans and Congolese, either
perpetrated pontedly against various specific leaders, or systematically carried out as
mass murders of hundreds of thousands of civilians, and (c) crime of war pillage – the
systematic, large – scale plundering of natural resources, especially strategically valuable
minerals.49

46
   Collins note 44.
47
   Collins note 44; April 6th 1994 attack Fits ICTR Mandate. Gladstone, Hirondelle News Agency, 12
December 2006.
48
   ICTR Statute article 6 (2).
49
   International Forum for Truth and Justice in Africa of the Great Lakes region – Press release: Spanish
courts issue 40 international warrants against highest-ranking officials of Rwanda’s political-military helm.
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Judge Mr Fernando Andreu Merelles investigated the scope of the criminal acts disclosed
by the International Forum for Truth and Justice in Africa of the Great Lakes region in its
lawsuit filed on February 22, 2005. At the end of the first investigative phase, the Spanish
judge has passed a resolution on 6/2/2008 which issued international arrest warrants
against 40 people who belonged or continue to belong to the highest ranking political-
military helm of the RPF which had held power since 1994. The arrest warrants charge
them with the crimes of genocide, crimes against humanity, war crimes and terrorism,
among others.50

In the face of lawsuits and summons by Spanish and French judges, Rwanda president
Paul Kagame managed to secure broad support from the African Union (AU) for his
proposal that its members neither answer nor accept being tried in other countries or by
international courts. During the AU summit held on 1 July 2008, Kagame proposed as
absolute necessity the creation of an international regulatory body with powers to review
the ‘growing abuse of the principle of universal jurisdiction by individuals states’ and, in
so doing, to avoid an ever increasing interference in the sovereignty and international
relations of African states.51 This is not the principle of universal jurisdiction since both
France and Spain were investigating the crimes committed against their citizens and any
country has a right to do so, including Rwanda.

Currently, only Rose Kabuye has been arrested in Germany as a result of the international
arrest warrant issued by judge Jean Louis Burguiere. She was extradited to France where
she faces justice in order to answer her involvement in the alleged crime. The accused has
been released on bail and the proceedings continue. Her arrest brought grievances among
officials and individuals in Rwanda who organised demonstrations to show solidarity
with her.

In retaliation to judge Jean Louis Burguiere investigations, Rwanda has established
Mucyo commission to investigate the role of France in 1994 genocide. The commission
has recommended Rwanda to bring France to book in international competent courts.52
Rwandan authorities have issued 33 international arrest warrants against French
politicians.

The government of Rwanda has set up a commission, which is composed of seven
people, in 2007 to investigate the cause of Habyarimana’s plane shooting.53 It is chaired
by the retired judge Jean Mutsinzi. Mutsinzi commission has not yet finalised its report.


Available at http://hungryoftruth.blogspot.com/2009/03/rwanda-spain-international-arrest.html ; see also
Tracy Wilkin Spanish judge indicts Rwanda officers. Los Angeles Times February 7, 2008. Available at
 http://hungryoftruth.blogspot.com/2009/03/rwanda-spain-international-arrest.html (accessed on 7 April
2009)
50
   International Forum for Truth and Justice in Great Lakes region note 49.
51
   V Martin. ‘Pride: Africa mistrust Northern justice’ in Pride Africa 21/12/2008.
52
   Mucyo commission (2007) 331.
53
   Report on Habyarimana plane crash this month. New Times 10/2/2009. See also Who killed ex-president
Habyarimana. Monitor 25 November 2008.
                                                                                                   11


The ICTR is currently scheduled to finalise trials by the end of 2009 and the appeals in
2010. Richard Dicker, Director of Human Right Watch’s International Justice Program,
observed that ‘the tribunal has not prosecuted even one of the serious Rwandan Patriotic
Front crimes from 1994. This glaring omission means delivering one-sided justice and
risks tarnishing the important work that the court had done to date.’54 Furthermore, the
doors seem to be closing with the mandate of the court unfulfilled. The victims of the
RPF crimes also deserve justice. Failure to bring these cases to court will call into
question the impartiality and independence of the ICTR.’55

With the expected closure of ICTR, Rwanda wants to receive convicted individuals for
the purpose of serving their sentences and the transfer of pending cases. The ICTR’s trial
chambers have in three cases refused to transfer trials for genocide to the courts in
Rwanda, citing fair trials concerns, including the ability to secure and protect witnesses.56
It is difficult to bring witnesses who are opposed to the government in Rwanda. They
may be accused of genocide ideology or be brought to the Gacaca tribunal.

The detention conditions in Rwanda do not comply with international standards.
However, it wants ICTR to transfer convicted individuals to Rwanda to serve their
sentences. For this reason, it has built the detentions facilities in Mpanga ‘which have
been dedicated for the purpose of enforcing sentences of those people convicted by
international tribunals.’57 In addition, prison confinement for people sentenced to life
imprisonment will not be applied for prisoners convicted by international courts or people
who are transferred to Rwanda and are sentenced to life imprisonment.58 The principle is
that individuals who committed the same crimes under the same circumstances should be
tried, sentenced and serve their prison term (punishment) in the same manner. Prison
confinement is against human rights and should be abolished. Preferential punishments
simply because the person has been convicted by international court or transferred to
Rwanda cannot be accepted. If Rwanda wants to meet the international standards, it
should improve its judicial system and conditions in detention facilities.

Rwanda has tried to silence everybody who openly says that RPF has committed crimes.
In her book, Leave no one to tell the story (1999), Alison Des Forges concluded that RPF
has committed crimes against humanity and war crimes. The government of Rwanda
prohibits this book to be sold on its territory.

Way forward



54
   Rwanda tribunals should pursue justice for RPF crimes. Human Rights Watch. News Release. Available
at http://www.hrw.org/en/news/2008/12/12/rwanda-tribunal-should-pursue-justice-rpf-crimes (accessed on
7April 2009).
55
   Ibid.
56
   Ibid.
57
   J Karuhanga. Sierra Leone: war crime convicts to serve sentences in Rwanda. The New Times. 19 March
2009. Available at http://allafrica.com/stories/200903190004.html (accessed on 7 April 2009).
58
   Alison Des Forges Rwanda: End life solitary confinement’ Human Rights Watch. News Releases January
29, 2009.
                                                                                              12


Rwandan constitution in its article 56 stipulates that ‘political organizations officially
recognised in Rwanda shall organize themselves in a consultative forum.’ Furthermore,
‘the leadership organs of political organizations shall only maintain offices at the
national, provincial and Kigali City levels.’59 Therefore, they are denied opportunity to
meet with the population in the village or elsewhere. There are no opposition parties in
Rwanda. Political parties authorised by RPF to contest the election do not represent the
opposition. They pledged allegiance to the latter. Indeed they are bound by a biased
stringent code of conduct within an interparty forum chaired by RPF.60

The constitution should be amended to allow opposition parties to operate in Rwanda.
Currently, opposition parties operate outside Rwanda in different countries situated in
Europe, North America and elsewhere. All victims of genocide, crimes against humanity
and war crimes should be remembered in dignity and individuals should be allowed to
bury their loved ones in dignity. A commission of truth and reconciliation, like the one
established in South Africa, should be implemented in order to know the whole truth
about what happened in 1994 in Rwanda. The truth must be told so that the Rwandan
society can heal itself from the atrocities that have been committed. Both the current
government of Rwanda and the ICTR has deceived the Rwandan nation as they only
provide for a biased or one-sided justice.

Conclusion

Rwanda has experienced gross violations of international humanitarian law such as
genocide, crimes against humanity and war crimes committed in 1994. To achieve justice
and reconciliation, Rwandan government has chosen to punish perpetrators instead of
commission for truth and reconciliation. After few years, prisons were overpopulated and
the government introduced the gacaca tribunals to solve this crisis. These tribunals do not
comply with international standards of justice as the accused does not have right to legal
representation, remain silent, test evidence from witness and there is a lack of separation
from the prosecution and judges. Gacaca tribunals only prosecute one party to the
conflict. They have refused to prosecute crimes committed by members of the RPF and
do not fully address the problem of Rwanda as a nation.

The ICTR has been established to prosecute those who are responsible for genocide,
crimes against humanity and war crimes committed in Rwanda between 1 January 1994
and 31 December 1994. It has only charged and prosecuted individuals who were in the
former government for the crimes they have committed. However, it has refused to judge
any member of the RPF for the alleged crimes they have committed in Rwanda. The
tribunal has a mandate to bring justice and reconciliation among Rwandans and in the
Great Lakes region by prosecutors those who committed atrocities in 1994. The ICTR has
failed in its mandate as it has not prosecuted any member of the RPF.



59
  Constitution of the Republic of Rwanda 2003 article 52.
60
  United Democratic Forces (UDF) Press Release 21 August 2008. Available at www.fdu-udf.org
(accessed on 7 April 2009).
                                                                                       13


The constitution of Rwanda needs to be amended in order to accommodate opposition
political parties. A commission for truth and reconciliation is recommended in order for
the Rwandan society to achieve genuine justice and reconciliation. All individuals must
be allowed to mourn for their relatives that they have lost in 1994 and to bury them in
dignity. The whole truth of what happened in 1994 must be known. This will contribute
to the genuine peace, justice and reconciliation and will completely prevent atrocities to
be committed again in Rwanda.

								
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