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1 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. 2 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. 3 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). 4 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). 5 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. 6 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. 7 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. 8 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://22.214.171.124/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. 9 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. 10 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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