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VI. International Legal Standards

During the genocide, lower-level perpetrators—including Interahamwe, soldiers, and others—were directly responsible for most acts of sexual violence. The smaller group of leaders of the genocide often exercised command responsibility in the perpetration of these offenses and directly incited rape. In addition to being acts of genocide under the Genocide Convention, such offenses violated other international treaties, notably the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the Convention on the Rights of the Child. While some of the high-level perpetrators have come before the ICTR, the national justice system is responsible for the prosecution of the majority of offenders. Therefore, most Rwandan victims of genocide sexual violence who seek accountability must rely on national justice mechanisms. The Rwandan government is obliged to uphold international standards in this respect. Rwanda is additionally obligated to implement the International Covenant on Economic, Social and Cultural Rights on behalf of its population.  Of particular importance to rape survivors of the genocide and their families is the right to the highest obtainable standard of health.

Violence against Women

International human rights law requires states to adopt effective measures for the prevention, investigation, prosecution, and punishment of sexual violence; to ensure its citizens the highest attainable standard of health; and to provide reparations to victims of serious human rights violations. Rwanda has ratified international and regional treaties containing the above protections.²¹⁴ The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to which Rwanda is a party, obliges states parties “to pursue by all appropriate means and without delay a policy of eliminating discrimination against women,” whether such discrimination is perpetrated by state laws or institutions, or by state or private actors.²¹⁵  Specifically, international human rights law requires states to provide an effective remedy for human rights abuses²¹⁶ and renders states responsible for their failure to prevent, investigate, prosecute, and punish recurrent violations by private actors.²¹⁷

The CEDAW Committee²¹⁸ has affirmed that violence against women constitutes a form of discrimination under CEDAW and identified key steps that states parties should take to combat the practice:

(a) Effective legal measures, including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence, including inter alia violence and abuse in the family, sexual assault and sexual harassment in the workplace;

(b) Preventive measures, including public information and education programmes to change attitudes concerning the roles and status of men and women;

(c) Protective measures, including refuges, counseling, rehabilitation and support services for women who are the victims of violence or who are at risk of violence.²¹⁹

In its Declaration on the Elimination of Violence against Women, the U.N. General Assembly similarly calls upon states to take decisive action against gender-based violence.²²⁰

Beyond its status as sex-based discrimination under international human rights law, sexual violence infringes upon sexual rights and the right to bodily integrity. The International Covenant on Civil and Political Rights (ICCPR) guarantees the right to bodily integrity through its protections for liberty and security of person.²²¹ The Committee on Economic, Social, and Cultural Rights²²² (ESCR Committee) has recognized the right of a woman to make decisions with respect to her sexuality under the International Covenant on Economic, Social, and Cultural Rights (ICESCR).²²³ Similar protections appear in such documents as the International Conference on Population and Development (ICPD) Programme of Action 1 and the Beijing Platform of Action 2.²²⁴          

International legal protections against sexual violence also apply to persons under eighteen. States party to the Convention on the Rights of the Child (CRC) must protect children from “all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse” and ensure that victims of such acts receive legal and psycho-social redress.²²⁵ The ICCPR grants every child the right to “such measures of protection as are required by his status as a minor.”²²⁶ Under the African Charter on the Rights and Welfare of the Child, states must take preventive and remedial measures against child abuse and torture, particularly sexual abuse.²²⁷

Right to Reparations

International human rights law obliges states to provide reparations to victims of serious human rights violations. The Universal Declaration of Human Rights provides for a right to remedy for violations of rights protected “by the constitution or by law.”²²⁸ The ICCPR requires states to provide an “effective remedy” for violations of rights and freedoms and to enforce such remedies.²²⁹ The U.N. Human Rights Committee, which authoritatively interprets and monitors adherence to the ICCPR, has affirmed the state obligation to provide reparations under the ICCPR:

Article 2, paragraph 3, requires that States Parties make reparation to individuals whose Covenant rights have been violated. Without [such reparation]. . .  the obligation to provide an effective remedy, which is central to the efficacy of article 2, paragraph 3, is not discharged. . . . The Committee notes that, where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations.²³⁰

The draft Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law (Basic Principles and Guidelines) reaffirms and elaborates on these international legal obligations.²³¹  Endorsing this draft document, the U.N. Commission on Human Rights has noted that a state must grant or facilitate reparation in accordance with its duty to respect and ensure human rights.²³² The Basic Principles and Guidelines enumerate the main forms of reparation: (a) restitution, meaning the restoration of circumstances that existed prior to the violation; (b) compensation for resulting material losses, as well as physical and emotional pain and suffering; (c) rehabilitation, meaning legal, medical, psychological, and other assistance to the victim; and (d) redress and measures to prevent future violations, through such means as truth-seeking, public acknowledgment, investigation and prosecution of responsible individuals, apology, commemorations and memorials dedicated to the victims, and revision of the historical record.²³³ The current government of Rwanda, although not responsible for the genocide, must nonetheless fulfill the human rights law obligations of the predecessor regime, including providing an effective remedy and reparations to victims of past violations.²³⁴

In the case of the Rwandan genocide, the issue of reparations relates to both criminal accountability for murder, sexual violence, and other crimes, and the material needs of the victims, including health care for rape victims. Compensation for victims of human rights abuse, such as mass rape, is an important component of legal redress and may contribute to improving the health and standard of living of the victims. Since 1996, the Tribunals of First Instance and military courts have ordered persons convicted of genocide or related crimes to pay damages to the victims, but, due mainly to the insolvency of the defendants, none of these awards has been executed.²³⁵

Since early 2001, government officials have endorsed versions of a draft law on reparations and made assurances of its imminent adoption, but have not taken any further action since.²³⁶  Articles 32 and 90 of the 1996 Genocide Law and the 2001 Gacaca Law, respectively, affirmatively state that a third law will be adopted to create and govern a reparations fund for genocide victims.²³⁷ Both laws include other provisions that presuppose the existence of such a fund.²³⁸  Article 96 of the 2004 Gacaca Law states simply that “[o]ther forms of compensation the victims receive shall be determined by a particular law.”²³⁹

The August 2002 version of the draft reparations law outlines a comprehensive reparations policy. Notably, it would grant financial compensation to genocide victims, with particular attention to health care, educational expenses, treatment for trauma, and the legal and social problems of the most needy persons; truth-seeking; proper burial of the relatives of the victims; and the preservation of the memory of the victims through memorials and programs.²⁴⁰ Proposed sources of funding for the reparations fund include: a proportion of the national budget; awards of damages to unidentified victims in the course of genocide trials; revenue from detainees’ community work; public taxation; and voluntary contributions by foreign states, charity organizations, and private persons or organizations.²⁴¹