There must be justice for the genocide, political murders, and other violations of human rights in Rwanda in 1994. The guilty must be punished and prevented from inflicting further harm. The innocent must be freed from unjust assumptions about their culpability and, if they are jailed, they must be released.
Demanding justice is morally and legally right and it is also politically sound. Without justice, there can be no peace in Rwanda, nor in the surrounding region. This truth, widely acknowledged in 1994, has become even clearer in the four years since: insurgents, including some responsible for the 1994 genocide, and RPA soldiers are killing and will keep on killing civilians until they become convinced that such a course is futile and costly.
Establishing the responsibility of individual Hutu is also the only way to diminish the ascription of collective guilt to all Hutu. The unexamined and incorrect assumption that all Hutu killed Tutsi, or at least actively participated in the genocide in some way, has become increasingly common both among Rwandans and outsiders. Fair trials, as well as other mechanisms for discovering the truth, such as missions of inquiry, can help establish a record of the events of 1994 that is credible to all Rwandans and thus useful in promoting reconciliation, distant though that prospect may be.
In addition, judicial decisions about responsibilities are necessary before the courts can decide on reparations, including allocating damages to the victims. Although such payments can never compensate for the suffering of victims, survivors must at least be able to recuperate lost property and see their destroyed homes rebuilt.
The international community, the Rwandan state, and other nationsall participants in some way in the genocide or witnesses to itmust share the burden of rendering justice for the crimes committed in Rwanda in 1994.1 All recognize this responsibility but are slow to fulfill it. The international community took months to establish the international tribunal and then at first failed to fund it adequately or to oversee its proper administration. The new Rwandan government needed considerable foreign assistance to rebuild its devastated judicial system. Even after funds and technical assistance began to arrive, authorities required two years more before beginning trials. Two years after that, fewer than 1,500 peoplehad been tried while some 135,000 others were detained and awaiting trial.2 Other national governments hesitate to prosecute alleged perpetrators because they expect the trials would be complex and expensive. Whatever the causes, the inadequate delivery of justice in all jurisdictions has aggravated the crisis in Rwanda and the larger region.
Rwandan government officials will be tried for their participation in the genocide, but foreign leaders whose inaction contributed to the scale and duration of the catastrophe will likely face the judgment only of history and public opinion. Some international authoritiesincluding the U.N. secretary-general, the U.S. president, and leaders of the Belgian Senatehave rightly recognized their responsibility for failing to avert and halt the genocide. Some policymakers, however, have confused an appropriate recognition of the debt they owe to Rwandan genocide victims with a sense of obligation to current Rwandan authorities. This sense of obligation helps keep them silent before past and present abuses of the RPA, thus perpetuating the pattern of impunity for massive abuses. International efforts at justice will gain full credibility only if the victors in 1994 are held accountable for their alleged violations of international humanitarian law just as the losers are brought to justice for the genocide they executed.The International Criminal Tribunal for Rwanda
On April 30, just over three weeks after the start of the genocide, the Security Council issued a presidential statement recalling the definition of genocidestill without using the termand asking the secretary-general to make proposals for investigating such serious violations of international humanitarian law.3 Following this first indication that the guilty would face international prosecution, other international actors began calling for justice for the genocide, adding to the demands of human rights and humanitarian organizations. Once the U.N. special rapporteur for Rwanda and a Commission of Experts named by the Security Council both concluded that Rwandan authorities had committed genocide and that soldiers of the RPA were guilty of violations of international humanitarian law, theSecurity Council established the International Criminal Tribunal for Rwanda in November 1994.
Following the precedent of the International Tribunal for ex-Yugoslavia, the tribunal for Rwanda was established under Chapter VII of the U.N. charter, concerning threats to international peace. Acting under this authority, the council required member states of the U.N. to cooperate fully with the tribunal and to enact whatever domestic legislation was needed to do so. The tribunal is to judge persons accused of genocide, crimes against humanity, and violations of article 3 common to the Geneva Conventions and of Protocol II Additional to the Conventions. It is accorded jurisdiction over persons of whatever nationality accused of committing such crimes in Rwanda and over Rwandans charged with such crimes in neighboring states as well. The mandate of the tribunal extends to crimes committed from January 1, 1994 to December 31, 1994. In the limitation of the period covered by its mandate, the Rwandan tribunal differs from that for ex-Yugoslavia, for which no final date to its jurisdiction has been set.
The tribunal is competent to judge persons who planned, instigated, ordered, committed or otherwise aided and abetted in executing the crimes within its jursidiction.4 Since much of the planning took place before January 1, 1994, however, prosecuting planners of the genocide may be hampered by the time limits placed on the mandate. The Security Council intended the tribunal to try government authorities and specified that having held an official position at the time of the crime shall not relieve such person of criminal responsibility nor mitigate punishment.5 Officials are held responsible for the acts of subordinates, if they knew or had reason to know such acts were planned and failed to halt them.6 Subordinates who committed crimes on the orders of their superiors cannot beexonerated for that reason, although the tribunal may take that into consideration in setting the punishment.7
The tribunal operates with a synthesis of common and civil law procedures, with heavier weight given to the common law system. In contrast to Rwandan courts where victims claiming damages as a result of the crime may speak at the trial, the international tribunal hears victims only if they are called to testify and then they speak as witnesses, not as injured parties. The tribunal operates with all the generally-recognized guarantees of due process, including the right to appeal the judgment. It may order punishment up to life imprisonment, but in accord with growing international practice, it does not impose the death penalty. It may order those found guilty to restore property taken from victims, but it has no procedure for ordering the payment of damages to the injured.
The tribunal was originally established with two chambers, each of three judges, and an appeals chamber of five judges. The Rwandan and the ex-Yugoslavia tribunals share the same appeals chamber in order to assure a single body of legal precedent for both. In response to the slow progress of trials and the large numbers of accused already in custody, the Security Council added a third chamber of three judges to the Rwandan tribunal on April 30, 1998.8 One judge, Lennart Aspergen, announced in 1998 that he would not stand for re-election when his term expired in 1999. The U.N. has reportedly found it difficult to locate highly qualified candidates to stand for election to be judges.
The prosecutor for the tribunal for ex-Yugoslavia was charged also with investigating and presenting cases before the Rwandan tribunal, assisted by a deputy prosecutor. Although this arrangement has permitted some sharing of experience and resources between the prosecutorial staffs for the two courts, it initially hampered the work of the Rwandan tribunal. At the time of its establishment, the prosecutor, Judge Richard Goldstone, was already fully engaged in cases from the former Yugoslavia and found it difficult to take on the new responsibilities. A new prosecutor, Judge Louise Arbour, was named in 1996 and declared her intention to allocate more time to the work of the Rwandan tribunal. Although she has done so, she works primarily at the European headquarters of the tribunals in The Hague, leaving observers, particularly Rwandan observers, with the impression that the ex-Yugoslav tribunal remains the primary focus of her attention. In 1997 the Rwandan government attempted to secure the appointmentof a separate prosecutor for the Rwandan tribunal, arguing that the scale of the work demanded such a full-time post, but the effort failed.
When the Rwandan tribunal was first being discussed, Judge Goldstone hoped that the court would be established in Rwanda and that some of its sessions might even take place outside the capital, as near as possible to the site of the crimes. The Security Council, concerned about the safety of staff and trial participants as well as about logistical considerations, decided to place the trial chambers in Arusha, a small city in neighboring Tanzania. Although not much closer to major international airports than Kigali, Arusha offers a large conference center for the trial chambers. The office of the deputy prosecutor and his staff is located in Kigali. The division of personnel between the two African sites in addition to the distance of both from the general headquarters of the tribunals in The Hague complicates and slows communication among staff.
Relations Between the International Tribunal and National Jurisdictions
The tribunal takes precedence over the national courts of U.N. member states and can ask any national jurisdiction to defer to its competence. Persons tried by the tribunal cannot be charged for the same crime in national courts, nor vice versa, except if the national trial is deemed to have been only a charade. The statute of the tribunal sets terms for its cooperation with national jurisdictions. In addition, in a resolution passed in February 1995 (S/RES/978), the Security Council specifically asked member states to arrest those suspected of crimes that fell under the competence of the tribunal.
Belgium, Benin, Burkina Faso, Cameroon, Cote dIvoire, Kenya, Mali, Switzerland, Togo, and Zambia have arrested persons who were then transferred to the custody of the tribunal. One suspect, Elizaphan Ntakirutimana, was arrested in the United States, but a local court held unconstitutional the law providing for his delivery to the tribunal. The judge ruled that the law did not conform to the usual pattern of extradition treaties, which have to be negotiated with other nations and approved by the U.S. Senate. Ntakirutimana was released but was subsequently rearrested. A second judge found the law constitutional in August 1998 and ordered his release to the tribunal. Ntakirutimanas lawyer has announced that this decision will be appealed, to the U.S. Supreme Court, if necessary.9
Administration of the International Tribunal
At the start, tribunal staff were obliged to spend a great deal of their time dealing with setting up and running offices. Drained by the search for paper clips,pens, and paper, they had little energy left for dealing with the complexities of understanding, investigating, and prosecuting the genocide of at least half a million people. Even the most basic supplies failed to arrive, sometimes because of lack of money, bureaucratic complications, or even corruption. Funded initially on a provisional basis, the tribunal offered contracts of three months to potential staff members and found it difficult to attract qualified personnel for employment of uncertain duration in a distant location lacking many of the amenities of city life. When competent people were hired, it could take U.N. headquarters up to a year to process their contracts and get them to central Africa.10
By late 1996, the problems of mismanagement were so obvious and constituted such an impediment to the work of the tribunal that they could not be ignored. After an investigation by a U.N. auditor, the registrar, responsible for daily functioning of the tribunal, and the deputy prosecutor were replaced. Subsequent audits have found considerable improvement but have noted the need for further changes in the administration.11 Judge Aspergen cited incompetence and lack of committment in the administration of the tribunal as partly responsible for his decision, mentioned above, not to stand for election to another term.
By 1998, the tribunal was receiving regular funding on a yearly budget, which facilitated its operation. Although the sum available for 1998 was substantial, some U.S.$50 million, considerably more than half this amount was allocated to the registrars office, about U.S.$34 million, while the office of the prosecutor, responsible for investigating and preparing the cases, was allocated only U.S.$14 million.12 A substantial number of positions, including some for the senior prosecutorial staff, remained unfilled. The deputy prosecutor, Bernard Muna, remarked in February 1998 that the international tribunal was then functioning with some fifty investigators while 2,000 had been available to prepare cases for the Nuremburg tribunal after World War II.13
The tribunal has operated at a slow pace, in part because of administrative problems, such as assuring the attendance of witnesses and counsel for the defense, in part because of extended vacations taken by the judges. According to one study, the tribunal was in recess for four months during one twelve month period.14
Because of the slow progress of the tribunal, the right of the accused to be tried without undue delay may have been affected in certain cases. Joseph Kanyabashi, Elie Ndayambaje, and Gérard Ntakirutimana have been detained at Arusha since November 1996 and their trials had not yet begun two years later. Several of the accused have also experienced delays in being brought before a judge for confirmation of their detention or for having their motions heard.
The tribunal has recognized that delays present a serious problem, one that is likely to continue given the number of person already awaiting trial. The addition of another trial chamber is intended to help resolve this problem, as are several expedited procedures adopted by the tribunal in May 1998.
The tribunal has experienced great difficulty organizing its press and public relations office. Journalists from the independent news agencies Fondation Hirondelle and Ubutabera have kept the international community well informed about developments at the tribunal, but within Rwanda, the majority of the population knew little of what was happening at Arusha in the first years of the tribunal. It was only in 1998 that Radio Rwanda established a regular service to inform Rwandans about the trials.
Protection of Witnesses
The defense and, increasingly, the prosecution often find that potential witnesses fear reprisals if they testify and so refuse to do so.15 The tribunal is charged with protecting all witnesses, but except for the time when witnesses are actually at Arusha, their safety is supposedly assured by local authorities in the country where they reside. In one case in September 1997, the tribunal sought the help of the Office of the U.N. High Commissioner for Refugees and of the Kenyan government to assure protection to defense witnesses in Kenya.16 Most witnesseslive in Rwanda and return there after testifying. In December 1996, a person scheduled to testify for the prosecution was killed in Rwanda; another was slain after testifying in March 1997. Seth Sendashonga, set to appear as a defense witness, was assassinated in Nairobi in May 1998. There is no proof that any of the three murders was directly related to the planned or past testimony of the victims, but the killings added to the sense of danger which discourages potential witnesses.
A number of the accused wish to call witnesses who currently live outside Rwanda. Some of these persons reside illegally in other African countries. Others have no valid passport because the Rwandan government has cancelled all passports issued by the previous government and these persons have been afraid to apply for new documents or have been unsuccessful in doing so. In order to assure the accused the right to call witnesses in their defense, the tribunal may have to make arrangements to permit witnesses to travel and to return to the countries where they now reside or to some other location which they deem secure.
The tribunal has occasionally failed to provide adequate safeguards for witnesses in its own hands, such as not shielding them adequately from public view. In one case, a prosecution lawyer inadvertently revealed the country of residence of a witness who wished to keep that information secret. In another, tribunal staff permitted unauthorized persons access to a list of possible witnesses whose identity was supposed to be kept confidential.17
When the tribunal was still getting organized, various national governments handed over suspects whom they had arrested but did not wish to try. Engaged in responding to the opportunities thus presented, prosecutors failed to develop a firm strategy for the cases they wished to pursue. Although the Security Council clearly intended the tribunal to focus on the highest officials and political leaders, the prosecutors found themselves putting together cases against officials of local importance who happened to have been surrendered to them.
In 1997 prosecutors began to plan a more coherent strategy and to seek out the high-ranking officials who should be tried for the genocide. With the cooperation of Kenyan authorities, they arrested seven important suspects in July 1997 and they also took custody over several senior officials who had been arrested elsewhere in Africa. Prosecutors then envisaged joint trials to focus on the collaboration that existed among those responsible for the genocide. Their initial effort to join the indictments of several persons was rejected in 1998 both by the trial chamber andon appeal. But prosecutors planned to try again, developing trials focused either on one aspect of the genocide, such as the media used to incite killing, or on one region.
One of the most important Rwandan government officials now in the hands of the tribunal is the former interim prime minister, Jean Kambanda, who pleaded guilty to genocide in May 1998 and was sentenced to life imprisonment by the tribunal in early September 1998. On September 2, 1998, the tribunal found Jean-Paul Akayesu, former burgomaster of Taba, guilty of nine of fifteen charges, including genocide, inciting to genocide, and rape. He was the first person to be convicted of genocide after trial by an international court. The verdict was also the first to recognize rape as a form of genocide. In December 1998, Omar Serashago, a militia leader from Gisenyi pleaded guilty to four charges, including genocide and crimes against humanity. He was sentenced to fifteen years in prison. The tribunal heard final arguments in the case of Clément Kayishema, former prefect of Kibuye, and his co-defendant, businessman Obed Ruzindana, in late 1998 and was expected to issue a decision in early 1999. Among others awaiting trial at Arusha are Colonel Bagosora, CDR leader Barayagwiza, propagandist and RTLM head Ferdinand Nahimana, MRND president Mathieu Ngirumpatse, and former minister Pauline Nyiramasuhuko and her son Shalom Ntahobali.18
The initial indictments submitted by prosecutors made no mention of rape and other crimes of a sexual nature. After a coalition of nongovernmental organizations drew the attention of the tribunal staff to the importance of prosecuting these crimes as a category of genocide, the prosecutors amended the indictment against Akayesu and stated their intention to give greater attention to this matter in the future.
The resolution establishing the tribunal included crimes against humanity and violations of the Geneva Conventions within its mandate. As yet the prosecutors have taken no action against RPF soldiers who might be accused of such crimes, a circumstance which has provoked little commentary from major international actors but which risks undermining the credibility of the tribunal.
Rwandans and the International Tribunal
After having requested the establishment of the tribunal, the new government of Rwanda voted against the resolution creating the court because it was dissatisfied with some of the terms of its mandate. When the Office of the Prosecutor began its work in Rwanda, its staff encountered an atmosphere of general hostility to the U.N. Rwandans in general were disillusioned with its failureto intervene in the genocide and some authorities were dissatisfied with the ongoing operation of various of its agencies. In 1997 the Rwandan government sharply criticized the tribunal. It demanded that Judge Arbour be removed and that a separate prosecutor be designated exclusively to handle cases in Rwanda. Bernard Muna, appointed Deputy Prosecutor at this time, succeeded in improving relations with Rwandan authorities. The new good feeling between the tribunal and the Rwandan government was reflected in a statement made by Vice-President Kagame when the tribunal registrar, Agwu Ukiwe Okali, visited Kigali in July 1998. Kagame noted that his government and the tribunal were partners, congratulated the tribunal on the significant progress made under difficult circumstances, and offered to provide any assistance needed in the future.19 When the first verdict was announced in September 1998, however, Gerald Gahima, secretary-general of the Ministry of Justice, again expressed scepticism about the tribunal and declared that had Rwanda received one twentieth of the funds given to the tribunal, it would have gone a long way towards solving our problems. He remarked, I think there is something perverse about aspiring to provide good justice for genocide. And he continued, People should aspire to prevent these crimes, not to punish them adequately after they have been committed.20
Beginning in 1996, the deteriorating security situationthe result of a growing insurgencycreated new obstacles to investigations and the transport of witnesses needed for trials. Tribunal staff were unable to travel freely, particularly in the western part of the country. Were the tribunal to begin investigating charges against RPF soldiers, assuring the safety of staff would presumably become even more difficult.
Perhaps more important than relations between the Rwandan government and the tribunal is the comprehension of the work of international justice by the Rwandan people. Conditioned by long experience of courts which operated only to serve the interests of the powerful, Rwandans could benefit from following the work of an independent tribunal which seeks to operate according to the highest standards of impartiality and respect for all parties.
Unfortunately, the tribunal is far from Judge Goldstones original vision of delivering justice as near the site of the crime as possible. The court chambers at Arusha, even though in a neighboring country, are distant and hard to reach. Travelby car requires many hours over difficult roads. Travel by plane is far beyond the means not just of ordinary people but even of lawyers and other members of the elite. Although proposals to bring Rwandan magistrates, lawyers, victims, and ordinary people to witness the proceedings have been made to Rwandan authorities, tribunal staff, and various foreign aid officials, these suggestions have as yet produced little result. In 1998, some staff from the office of Rwandan prosecutors did finally attend court sessions and Rwandan representatives witnessed the announcement of the judgment against Akayesu, but the general public remains far removed from the proceedings. A plan to bring televised hearings to local communities has as yet to be realized, although, as mentioned above, Radio Rwanda now broadcasts news regularly from Arusha.
Distant in location, the tribunal is also alien in procedure. Rwandans are accustomed to presenting their own complaints to persons in authority, whether in a formal court or before the local burgomaster. Tribunal procedure obliges them to leave the process of accusation and presenting evidence in the hands of a professional legal staff with whom most of them have no contact. In the Rwandan capital, the office of the prosecution staff is well-guarded. Persons without prior appointment or acquaintance with tribunal personnel find it difficult to gain entrance. Reasonable though these precautions may be, they inhibit Rwandans from initiating contacts with staff whom they have never met. Should they be contacted by investigators, Rwandans can usually speak to them only through an interpreter and thus wonder if their real meaning is being communicated. As a result of these circumstances, many victims feel that the entire process has little to do with them and their suffering.
Rwandans are accustomed to a court case being heard in one or two days, with few or no witnesses, and being decided soon after. The lengthy presentation of evidence, complicated by the need to observe extensive safeguards for the rights of the accused, is foreign to them. Since neither the tribunal itself nor Rwandan authorities have successfully explained such aspects of tribunal procedure, most Rwandans see the slow pace of trials as simply one more proof of the inefficiency of the U.N., or worse still, of its indifference to Rwandan needs.
Rwandan law provides for the death penalty. In the years just before the genocide, there were no official executions of condemned criminals, but most Rwandans anticipated that the leaders of the genocide would be executed if found guilty. As with other aspects of court procedure, little has been said to Rwandans to explain why the international tribunal will not condemn those found guilty to death. With Rwandan courts prepared to execute some convicted of genocide even if they never exercised responsibility at high levels, the refusal of the tribunal toexecute persons who directed the genocide at national level is doubly incomprehensible to some Rwandans.
According to the statute of the tribunal, the convicted are to serve their sentences in prisons in Rwanda or in other countries, as arranged by the tribunal. As of early 1999, several European and African governments had indicated a willingness to imprison convicted persons in national facilities, but only the government of Mali had signed an agreement with the tribunal.21 Imprisoning the criminals in European or North American jails would anger those Rwandans who imagine foreign jails to be places of comfort, if not luxury.The Rwandan Prosecution of Genocide
Justice, important in any orderly society, is arguably even more essential in a society that has suffered the trauma of a genocide. The guilty must be found guiltyand found guilty of crimes that they actually committed. Condemning a person for one crime even if he is in fact responsible for another allows a perpetrator to go unpunished and raises doubts among those who know that the judgment was wrong. To allow the innocent to be wrongly accused or, even worse, to find them guilty of crimes they did not commit makes the judicial process appear to be nothing more than politically-driven, organized reprisals. Without justice, there is no reliefpsychological and materialfor the victims and there is no hope of reconciliation for the society.
The proper prosecution of the genocide could permit the Rwandan state both to end impunity and to lay the foundation for the rule of law. These trials offer an opportunity to establish the independence of the judicial system from political influence and to set the courts on the path of respect for the rights of all citizens, whether victims, accused, or neither.
Yet delivering justice after a genocide is extraordinarily difficult because of the enormous scale of the crime and because of the extent of suffering it has caused. Remarkably enough, some Rwandans who have suffered enormously recognize the need for fairness and honesty in judging alleged perpetrators. One woman who was raped during the genocide testified at the international tribunal:
Not all the Hutu had wild hearts....I cannot say that all the Hutu have killed. There is a difference between Hutu and assassins.22
But other Rwandans, including some recently returned from decades in exile as well as some who survived the killing campaign, are not so careful about questions of guilt. In 1996 a professor at the national university published a magazine with a cover photograph of a person sitting in front of a pile of guns. The headline, as well as the article inside, implicated the subject of the photo in the genocide. The person had not been charged, far less convicted of genocide. When a researcher from Human Rights Watch/FIDH asked the professor if the photograph, which appeared to be a montage, was faked, he readily admitted that it was and explained that it had been created by combining an innocuous photograph of the subject with another unconnected photograph of a pile of arms. He added that it did not really matter, since the person in question was clearly guilty anyway. Having decided in his own mind that this person had committed genocide, he then apparently concluded that fairness and honesty were unnecessary in presenting proofs against him. The same reasoning seems to move witnesses at some genocide trials who recount events they could not possibly have seen and prosecutors and judges who accept their testimony without question.
Attempting to deliver justice for a genocide could overwhelm even the best organized judiciairy. In Rwanda, even before 1994, the judicial system was weak and subject to outside pressures, with relatively few attorneys, magistrates, and police professionally prepared by the study of the law. During the war, many of those persons were killed, themselves committed genocide, or fled the country. Court buildings, few and poorly equipped, were pillaged and in some cases partially or completely destroyed.
Beginning soon after the establishment of the new government, foreign donors offered considerable aid, both in funds and in training programs for judges, prosecutors, and other judicial staff. Although the National Assembly refused to accept the help of foreign judges in carrying out genocide trials, the government did accept other kinds of technical assistance provided by the U.N. Human Rights Field Operation, by foreign governments, and nongovernmental organizations, such as Réseau des Citoyens, the first to undertake training programs after the genocide. Courthouses were rebuilt and judges appointed at various levels of the system, including to the Supreme Court and to the supervisory Higher Council of Magistrates. A bar association was established in March 1997, permitting thesetting of ethical standards for lawyers and the creation of a mechanism for legal assistance to the indigent.
Soon after the judicial system began to function, military officers, civilian officials, and other influential people began interfering with its operations. The essential issue of judicial independence has not been resolved with the passage of time, with the result that other gains in resources have not brought improvements to the extent anticipated in the functioning of the judicial system.
Authorities in the new government sought legislative solutions to deal with the extraordinary number of arrests and projected prosecutions resulting from the genocide. In the first months after the end of the genocide, there were few civilian judicial authorities in place and neither courts nor prosecutors' offices were functioning. In the first efforts to bring the alleged perpetrators to justice, soldiers and others without legal authority to arrest detained thousands of persons without respecting their rights or legal formalities. The National Assembly first attempted to regularize these detentions by a law passed in June 1995, but the Supreme Court declared the statute unconstitutional on several grounds, including that it violated the right of the accused to be presumed innocent. A second law, passed on September 8, 1996, stipulated that such detentions must be regularized by December 31, 1997, and that pre-trial detentions must be limited to six months. As it became clear that the deadline would never be met, a law of December 26, 1997 set December 31, 1999 as the new deadline for regularizing detentions and set the length of pre-trial detention at a maximum of two years.
After long and bitter debate among advocates of different approaches to identifying and punishing those guilty of genocide, the Assembly passed a law on August 30, 1996 to regulate prosecutions for genocide, crimes against humanity, and other crimes committed in connection with them.23 The law divided the accused into four categories according to the extent of their alleged participation in crimes committed after October 1, 1990 and before December 31, 1994.24Category one included the planners, organizers, inciters, supervisors, and leaders of genocide and crimes against humanity, including anyone who acted in a position of authority from the national level down to the level of the cell in political parties, the army, religious organizations, or the militia. It included all those who committed criminal acts or encouraged others to commit them. It also included notorious murderers, those known for the brutality of their crimes, and persons who committed acts of sexual torture.25
Category two included the authors of or accomplices in homicides or attacks that resulted in the death of the victim. Category three comprised those who caused serious injury to victims and category four included persons who committed crimes against property.
Those found guilty in category one were liable to punishment up to and including the death penalty. Legislators did not intend the death penalty to be mandatory, as was shown by their deleting the word gusa (only) from the kinyarwanda text of the law,26 but many Rwandans expect that those condemned as category one criminals will be sentenced to death and in practice that has been the case. Persons found guilty of category two crimes were to be sentenced to punishment up to life imprisonment. Those convicted in category three were subject to imprisonment and the payment of damages as specified in the ordinary criminal code while those in category four were not to be imprisoned at all but were merely to deliver reparations to their victims in an amount settled by discussion between the parties and with the mediation of their fellow citizens in the community.27
Persons convicted in category one are jointly and severally liable for all damages caused anywhere in the country, regardless of where they personallycommitted a crime, while those convicted in other categories are liable for damages resulting from their own acts.28 In addition, persons convicted in category one lose all civic rights for life, while those in category two may lose the right to vote, to stand for election, to serve as a witness (except for delivering simple factual information), to carry arms, and to serve as a member of the armed forces, as a policeman, or as a teacher. Persons convicted in category three may also lose civic rights for a period of up to twenty years, as provided for in the regular penal code.29
The definitions of category one are broad, including such terms as notorious killers and those who killed with excessive malice and zeal. This vagueness leaves substantial latitude to prosecutors and judges and introduces the possibility that there may be significant variation from one jurisdiction to another in how the terms are applied. The consequences of assignment to a category are serious, since it is only criminals of category one who are liable to the death penalty.30
The chief prosecutor at the Supreme Court Procureur général près la Cour suprême was to publish a first list of persons placed in category one within three months and did so at the end of November 1996. The list of 1,946 names was hastily assembled, apparently by a foreign assistant in the justice ministry on the basis of information supplied by local administrative or judicial authorities. More than a dozen persons listed were dead at the time of publication, including one Tutsi killed in the early days of the genocide. One hundred and forty-three persons at the head of the list were mostly recognizable leaders of national importance. They were followed by names grouped according to commune. In some communes, local authorities apparently forwarded large numbers of names to the chief prosecutor for inclusion on the list. The commune of Kigoma was represented by 142 names and the commune of Mbogo by 234 names, considerably more than the number of national leaders and more than one tenth of those listed for the entire country. In other regions, authorities were less efficient in providing information to Kigali and some communes where major massacres took place were not mentioned at all or were represented by three or four names. Some persons wereidentified incompletely, without full name or other details, raising the possibility of future disputes over the identity of the person intended.31
In theory, being named on the list of category one does not infringe the presumption of innocence since those named must all be tried and convicted before being pronounced guilty. But many Rwandans assume otherwise, and except for those most scrupulous about legal procedure, consider those named on the list to be guilty. Those whose names are published lose the possibility of reducing their punishment by confessing in the plea-bargaining process established by the law and have no right to appeal having been placed on the list. Despite the importance of the list, it has not been revised in the two years since its publication.32
Persons convicted under the genocide law have the right to appeal the verdict, but only on the relatively narrow grounds of errors of law or flagrant errors of fact and only for the brief period of fifteen days after the verdict is handed down.33
The genocide law instituted a system of confession and reduced sentences modeled on the U.S. practice of plea-bargaining. If the accused made an apology and a full confession, including details concerning all others involved in the crime, he could benefit from lesser penalties. The extent of the reduction depended on whether or not the confession had been made before the trial had begun. Persons who might be assigned to category one and who confessed before trial could be placed in category two and hence avoid the death penalty, but only if their names had not already been published on the list of category one criminals.
In some cases, the genocide law retained the penalties which were set in the ordinary penal code and in others reduced them. But in certain cases of crimes in category one, including sexual torture, serving as an accomplice to certain crimes, and committing genocide through the exercise of authority, the penaltiesup to and including deathare greater than they were before the passage of the genocide law. In these cases, the genocide law seems to have violated the principle of non-retroactivity contained in Article 12 of the Rwandan constitution and in Article 15 of the International Convention on Civil and Political Rights.34
According to the law, trials for persons accused of genocide, crimes against humanity, and related crimes were to be held solely in specialized chambers to be created within ordinary civilian or military trial courts.
In 1994, the RPF spokesman spoke of trying 2,000 persons for genocide, a figure later raised by judicial authorities to 10,000 and then increased by political leaders to 30,000.35 In mid-1998, some 135,000 persons were incarcerated in prisons and communal lockups, most of them charged with genocide or related crimes.36 Even four years after the defeat of the genocidal government and over a year after the end of the massive return of Rwandans who had fled to Zaire, Rwandan authorities were continuing to arrest persons for genocide.
An indeterminate number of those detained have been falsely accused by those who seek their posts or property or who wish retribution for some current or past wrong, real or imagined. In some cases, authorities have wrongly charged political rivals with genocide and imprisoned them without good cause. In 1995, the prosecutor of Kigali estimated that 20 percent of detained persons were innocent;37in 1998, the prosecutor of Ruhengeri set the number as 15 percent.38 Another person in the legal profession acquainted with prison conditions declared that some 60 percent of the persons held in Gitarama prison were either falsely accused or were at most guilty of category four crimes, which do not carry the punishment of a prison sentence.39 Because the overburdened judicial system has failed to discover and punish false accusations, increasing numbers of people have brought false charges for their own interests. In some cases reported to our researchers, persons have been obliged to pay others in order to avoid being falsely accused and imprisoned or they have been asked to provide a substantial sum of money to officials in order to arrange for the release of a family member.40 In 1997, two members of the prosecution staff in Ruhengeri and two judicial police inspectors were arrested for corruption and arbitrarily detaining innocent persons.41
In 1994, Minister of Justice Alphonse-Marie Nkubito and such subordinates as the prosecutor François-Xavier Nsanzuwera and Judge Gratien Ruhorahoza attempted to limit 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 the 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.42
Soon after, the minister of justice ordered the establishment of screening commissions, joint civilian and military committees, to examine cases of detainees who might be liberated. After sporadic activity in several prefectures, the screening commissions were disbanded in 1997 to be replaced by mobile teams, which moved from one commune to another, supposedly to help prepare judicial files fordetainees who had none and to speed the release of those who had been accused without sound basis. The teams, which received minimal training for two weeks, did facilitate the release of several hundred persons in some regions, but in others, such as Butare, Kibungo, and Kigali-rural prefectures they engaged in further large-scale arrests, sometimes together with harsh treatment or actual beatings of detainees.43 In late 1997 the teams were generally superseded by Council Chambers, Chambres du Conseil, an institution that existed before the genocide in which presiding judges held hearings to determine whether detainees should be freed or kept in prison. Sitting in Kibungo, Kigali, Remera, Gikondo, Gitarama, Butare, Rilima, Gikongoro, Cyangugu, Byumba, and Nyanza these panels worked under pressure of the December 31, 1997 deadline described above and sought to dispose of the huge number of cases of persons detained without due process. They released hundreds of detainees, but once the 1997 deadline had been extended two years, their activity diminished to virtually nothing.44 The panels began working more efficiently again in late 1998 in some areas but as of early 1999, none of the various efforts tried had yet reduced the prison population by any significant amount.
As the prison population swelled, trials progressed very slowly. The first began at the end of December 1996 and by the end of December 1997, 322 persons had been judged in 105 trials held in the specialized chambers created by the genocide law. Of this number, 111 of the accused were found guilty and sentenced to death while another 109 were condemned to life in prison and eighty-one to shorter terms. Nineteen persons were acquitted.45
Acknowledging the extraordinarily slow rate of trialsa pace which would require literally hundreds of years before judging all those detainedRwandan authorities set a goal of trying 5,000 persons during 1998. To this end, they began prosecuting larger groups of defendants together, the largest of which was fifty-one persons tried in the prefecture of Byumba. This practice offered some hope of disposing more rapidly of cases, but the confusion and logistical problems in dealing with such a large number of defendants at one time may prejudice therights of some of them.46 The Rwandan government stated that during 1998 courts had judged 864 persons, a considerable improvement over the previous year but still far short of their announced goal.
Prosecutorial staff often prepared cases extremely slowly, a circumstance which was only partly explained by the difficult conditions under which they often work. Many judicial police inspectors, those charged with doing on the spot investigation, lacked any means of transportation to get them quickly to the sites where they need to work. They sometimes did not appear at court or were not prepared and had to request a postponement.47 Judges, too, were often absent from court, forcing postponements. According to one evaluation, some 60 percent of judicial hearings were postponed in the first half of 1998, about half of them for good reason, such as allowing the defendant to seek counsel or to prepare his defense, and the rest because of absenteeism, poor preparation of judicial personnel, or logistical problems.48 Judicial staff are poorly paid, with judges earning only about U.S.$70 a month. In 1997, judicial salaries were subsidized by the U.N. Development Program, but this support finished at the end of 1997. To make the situation worse, judicial personnel did not receive even their regular salaries at least from December 24, 1997 through the end of March 1998, apparently because of the establishment of new procedures for payment.49 Inadequate compensation, the overwhelming nature and scale of the work, and therisks involved in prosecuting the genocide help explain why judicial personnel fail to perform at maximum efficiency.
In the first trials for genocide, the accused were not represented by counsel, a situation which was strongly criticized by local and international human rights groups as well as by the U.N. Human Rights Field Operation. Soon after, the Belgian-based nongovernmental organization Avocats sans Frontières began providing foreign lawyers, many of whom were from other African countries. Of the forty-five who participated in 1997, most assisted defendants accused of genocide, but some also counseled victims who were seeking damages as civil claimants.50 Between ten and twelve lawyers from Avocats sans Frontières were in Rwanda in early 1998, a figure that increased to between sixteen and twenty later in the year.51 In 1998 several Rwandan lawyers also agreed to defend persons accused of genocide, a step that most had refused to take before, but even so, this meant that ordinarily there were fifteen or fewer lawyers available at any one time to assist persons charged with genocide. Some 56 percent of defendants in criminal trials during 1997 had no counsel, many of them in regions where local insecurity inhibited travel. None of the defendants in Kibuye was assisted by a lawyer and only about 20 percent of the accused in Ruhengeri and Gisenyi had representation at their trials. In contrast, 92 percent of those tried in the capital had legal advice.52
When trials began, many judges were completely inexperienced and had just completed a four month-long training program. Not surprisingly, many made errors, some of which violated the rights of the defendants. In some cases, for example, they failed to inform the defendant of his right to have legal counsel or they refused to grant a postponement to permit the defendant to consult his file. In many of the early trials, neither the prosecution nor the defense presented witnesses and the judgment was based solely on the written file, including a summary of evidence by the prosecutor, and on any comments or responses made by the defendant. According to Rwandan law, prosecutors have the duty to seek out andpresent evidence that might establish the innocence of defendants, but they rarely did so.53
With experience, continued training, and criticism by attorneys who appeared before them, some judges have improved in the performance of their duties. They have shown greater willingness to grant postponements, such as to enable a defendant to seek counsel or to prepare his defense. Some conscientious judges have sought to resolve contradictions in witness testimony, even if doing so requires them to visit the site of the crime.54 Other judges, however, still make no apparent effort to examine contradictions in testimony between witnessesor even within the testimony of a single individualand appear ready to accept without question any statement made by witnesses for the prosecution.55
Respect for the rights of the defendants and the victims, like the general decorum and efficiency of the proceedings, vary considerably from one courtroom to the next. The trials of the MDR leader Froduald Karamira and that of two soldiers and a civilian in a special chamber of a military court in Butare appear to have been conducted according to international standards of due process. In others, like that of Silas Munyagishali, there were apparently procedural errors as well as the intimidation of defense witnesses, and in the case of Dr. Geoffrey Gatera, judges failed to keep order and allowed the blatant harassment of the defense lawyer and of witnesses.56
Prosecutors have called witnesses to help establish proof of guilt with growing frequency. In 1997, witnesses testified for the prosecution in 63 percent of the trials. Defendants ordinarily made use of their right to examine these witnesses only if they had a lawyer present to assist them. In 1997, defendants presented witnesses on their behalf in about 18 percent of the cases.57 In some cases, they were unaware that they had the right to do so. In other instances, they were unable to contact potential witnesses or to persuade them to appear. In one case documented by our researchers, a defense witness changed his testimony underpressure and falsely inculpated the defendant. The defendant was found guilty and condemned to death. The witness later went to beg the pardon of the defendants wife and family.58 In a case recorded by the U.N. Human Rights Field Operation, a witness who testified in defense of Jean-Baptiste Sebarame, a member of the assembly charged with genocide, was arrested by a judicial police inspector from the office of the Kigali prosecutor. He was detained from January 27 to February 15, 1998, without being charged with any crime. During this time, he was reportedly beaten severely and told to change his testimony to inculpate Sebarame.59
Witnesses sometimes fail to appear at trials because they have not been informed in time or because they have found it too difficult to get there. In some cases, judges have moved proceedings to locations where witnesses will find it easier to come forward. In general this is an initiative worth encouraging if arrangements are made for the defendant to be present. In some cases, judges have held sessions away from the court chambers without the defendant and even without the prosecutor.60
Witnesses also refuse to testify for fear of reprisals. This may happen more often with those asked to present evidence for the defense, but it also happens with people asked to testify for the prosecution.61 Judges, prosecutors and other members of the judiciary, as well as lawyers, also feel at risk because of their involvement in the genocide trials. Two Rwandan attorneys working with Avocats sans Frontières, Innocent Murengezi and André Ndikumana, were the victims of crimes that may have been linked to their willingness to defend persons accused of genocide. Murengezi disappeared in February 1997 and has never been found and Ndikumana was strangled, along with one of his household staff, in January 1998. Another attorney working with Avocats sans Frontières received both written and oral threats in the course of his defense of Jean-Baptiste Sebarame, whose case is mentioned above.62
The victims of genocide have the right to have their property returned and to be compensated, as far as is possible, for other losses, whether material or more abstract. Hundreds of thousands have been left destitute by the genocide, including many of the 300,000 children who now live without adult protection in households headed by minors and many of the women now solely responsible for the wellbeing of their households.63 Some survivors, generally those based in urban centers, understand their right to damages from criminals who have harmed them or their families and have filed the necessary papers in court to receive compensation. Those who are in touch with organized groups formed to protect the interests of survivors understand best the procedures involved. In 1997, 27 percent of civil claimants were represented by lawyers in court.64
Often those most in need of compensation, such as elderly widows and children, are least informed or least able to act in their own interests and fail to claim damages at the appropriate time. In some cases, they live too far from court to appear or they are unaware that the case is being heard. In such cases, the court may set aside an amount of damages for claimants who have not yet made themselves known, but if it does not, those persons will never receive compensation.
In contrast, some survivors have learned how to exploit the system to their advantage and request damages from defendants who never harmed them. In one case that took place in Butare in 1998, a person filed for damages merely because the accused were charged with crimes that had taken place in her neighborhood the same week her own residence had been attacked. She had no indication that the assailants involved had ever been at her residence. Some judges are extremely lenient in such cases and award damages without requiring a link to be established between the defendants and the supposed losses.65 Persons convicted of categoryone crimes are liable for damages throughout Rwanda, as mentioned above, but no effort has yet been made to implement such compensation. The National Assembly has established an assistance fund for survivors, but its aid will be distributed according to need, not according to damages legally awarded.66
In 1995, administrators in some regions began encouraging the local settlement of claims by survivors against perpetrators of genocide through a customary process known as gacaca. Supposedly the result of negotiation between the injured party and the perpetrators, the process often took place before a community gathering. In case of subsequent conflict over the arrangement, the injured party could take the case to court to insist on its implementation.67 Rwandan authorities reportedly began talking in late 1998 of using the procedure also to judge persons accused of causing injury or even death to others during the genocide, an extension of customary practice which would raise questions of due process for the accused.
The Executions of April 1998
In late April 1998, the Rwandan government carried out the executions of twenty-two people condemned to death for having led or participated in the genocide. The executions took place in public stadiums in several towns. Those in the capital attracted thousands of spectators, who watched the executions in a noisy, celebratory mood. Many expressed their satisfaction at the executions. Authorities had encouraged the public to attend, citing the educational effect of watching the condemned be executed.
Many international political and religious leaders as well as human rights organizations asked that the executions not be carried out and protested when they did take place. Human Rights Watch and FIDH oppose the death penalty because of its inherent cruelty and because no judicial system is free from the possibility of error. An error in a case resulting in capital punishment obviously can never be corrected. This logic is particularly compelling in the Rwandan situation where the inexperience of the judges, the inadequate investigations by prosecutors, and the strongly emotional atmosphere of a post-genocide society increase the possibility that errors will occur. Many observers, Rwandan and foreign, believe, for example, that the guilt of former prosecutor Silas Munyagishali was not proven in the trial which resulted in his condemnation. He was one of those executed in April 1998. Several of the condemned had not had the benefit of counsel during their trials.
According to the Arusha Accords, the Rwandan government was bound to ratify all international human rights conventions, including the Second Optional Protocol to the International Convention on Civil and Political Rights, which abolishes the death penalty. Although the first minister of justice in the new government, Alphonse-Marie Nkubito, tried to persuade the government to fulfill its obligation to ratify the protocol, it refused to do so.
Among those condemned to death in 1998 but not yet executed is the husband of a Tutsi woman who lost all of her family except her husband and children during the genocide. She told our researchers that he was found guilty on the basis of testimony from witnesses who had been paid to lie against him, but she will not speak publicly about the perjury. Her husband insists that she remain silent to protect their children and she agrees with him that protecting their lives must take priority.
In the first year after the genocide law was passed and the accused were offered the chance to confess in return for a reduction in punishment, fewer than sixty persons took advantage of the plea-bargaining opportunity. The number increased in 1998, particularly after the first executions. By the end of 1998, 8,615 people had begun the process of making confessions. Others refused to do so, citing mistrust of governmental authorities or fear of reprisals against themselves or members of their families. Some fear reprisals from fellow prisoners because in most prisons those who confess are not separated from the rest of the prison population.68
The confession procedure, even if it became widely used by detainees, would not quickly reduce the prison population. Each confession has to be examined by prosecutorial staff to determine its veracity and by judges to determine if the appropriate procedure has been followed. This process demands time and resources, although clearly somewhat less than a trial.
As authorities increase efforts to obtain confessions, even innocent persons may choose to confess, particularly if they believe that doing so will bring them a faster release from prison. Such erroneous confessions of course will do nothing to advance the cause of justice: they will result in punishment of persons for crimes they did not commit and they may discourage efforts to find and prosecute the real perpetrators of the crimes.
Conditions in Prisons and Communal Lockups
In 1996 and 1997 Rwandan authorities expanded old prisons and opened new ones, temporarily relieving some of the overcrowding which had produced inhumane and in some cases life-threatening conditions in prior years. In the early months of 1998, however, thousands of prisoners previously housed in communal lockups were moved to central prisons, causing conditions there to deteriorate once more.69 Conditions in the communal lockups are worse than those in the central prisons. The facilities are severely overcrowded and lack light, ventilation, and toilet facilities. In the first three months of 1998, 405 detainees died in central prisons and communal lockups. The International Committee of the Red Cross provides food at the central prisons but detainees at the communal lockups are supposed to be fed by their families. In households where the only adult male is detained, women often have great difficulty preparing and delivering food to communal jails, sometimes far removed from their homes, and at the same time cultivating the crops to feed children and others in the family. In the early months of 1998, U.N. monitors found that about two-thirds of the detainees were receiving no food from their families. The International Committee of the Red Cross provided high-protein biscuits in some communal lockups but in only three of eleven prefectures.70
Rwandan authorities have expressed serious concern about the numbers of people detained. In August 1997, Vice-President Kagame declared that in addition to prisoners whose guilt is clear, there are others whose files have been lost or never even been opened. He continued:
There is an incomprehensible situation, and this is the most essential: there are innocent people, arbitrarily detained. Justice must be done for these innocent people; no one should be unjustly detained.71
In addition to being wrong, keeping the innocent in prison is costly in terms of dollars and wasted human resources. The international community now supports the cost of feeding prisoners in the central prisons, a sum of more than U.S.$18million per year, but presumably it will eventually require the Rwandan government to assume this expense. While the cost of maintaining the guilty in prison is a necessary expense in the interests of justice, it makes no sense to pay for detaining the innocent. Unjustified detentions are also politically costly, undermining the legitimacy of the government with those whose relatives and friends are the victims of injustice.
In July 1998, nearly a year after Kagames statement and with the prison population still larger, authorities of the RPF talked about the possibility of releasing large numbers of detainees, perhaps as many as 80,000 people. They foresaw the provisional release of those accused in categories two, three, and four, including people who aided and abetted the genocide but did not actively participate in it.72 Even were authorities to release only persons from category four, for whom punishment by imprisonment was never prescribed, this would reduce the prison population by a very significant number. The possibility of a massive release was not raised again until early October 1998, when the minister of justice once again told the press that ten thousand detainees might be provisionally released. He made clear that those persons would eventually be tried. In early December seventy-six persons were released, the first to be liberated under this plan.
The RPF authorities recognized that any large-scale release would first require substantial preparation of public opinion.73 The return to their communities of released detainees or persons acquitted after trialeven discussion of plans for such releasehas often resulted in demonstrations by survivors or those who purport to speak in the name of survivors. In a number of cases, those released or acquitted have been harassed by their neighbors. In one case investigated by Human Rights Watch and FIDH, an elderly man twice arrested and twice released chose to spend his days hidden at home rather than leave his house and risk insults or worse from others in the neighborhood.74 In another case, researchers found that a child released from prison shortly before had been beaten by neighbors.75 Persons provisionally released from detention were reportedly killed in Cyangugu and inDecember 1996 twenty-four persons who had been released were said to have been killed in several communes of Butare.76 In August 1998 in the prefecture of Gitarama assailants killed thirteen persons in the household of a man who had recently been acquitted of genocide.77 Many detainees continue, nonetheless, to have faith that their neighbors can discriminate between the innocent and the guilty and do not fear release.78 To assure their safety, authorities must be prepared to act firmly and promptly to halt and punish any attacks on them.
Delivering justice for the genocide will continue to require extensive resources and a great deal of time. Large-scale provisional release of those against whom there is no credible evidence of guilt and those accused of category four offenses would at least signal the determination of Rwandan authorities to take decisive action. This in combination with improved efficiency in distributing resources throughout the system might encourage judicial personnel to work harder. Increased international technical assistance for judges, prosecutors, and other judicial personnel might also give renewed impetus to Rwandan authorities who are currently overwhelmed by the task.Foreign Prosecutions and Other Proceedings
Rwandans implicated in the genocide began arriving in Europe and elsewhere in Africa even as the slaughter was going on, but judicial authorities in these areas have shown little determination to prosecute them. To do so means creating the necessary precedents and implementing hitherto untested criminal legislation. To invoke jurisdiction outside of Rwanda in common criminal cases would usually require that either the perpetrator or the victim be of the same nationality as the prosecuting authority. But these criteria do not apply in many of these genocide cases where both accused and victim are Rwandan and where the crimes were committed on Rwandan soil. In most cases, prosecutions would involve reliance on the principle of universal jurisdiction, the right to prosecute certain crimes recognized by international law as so heinous as to require prosecution without regard to the site of the crime, when it took place, or the nationality of the accused or the victim.
The first legal action related to the genocide was undertaken in the U.S. in a civil rather than in a criminal court. An imaginative interpretation of a nineteenth-century law had established the precedent in the Filartiga case of suing human rights abusers for civil damages, even if neither abuser nor victim were U.S. citizens and even if the crime were not committed in the U.S. When Jean-Bosco Barayagwiza, the head of the CDR, came to New York in May 1994 to present the case of the Rwandan government to the U.N., Human Rights Watch used this precedent to sue him in the name of several Rwandans resident in the U.S. and related to persons killed in the genocide. Judge John Martin of the Second District Court in New York returned a strong verdict against Barayagwiza in April 1996. Declaring that he had never judged a case where monetary damages so inadequately compensated for the suffering inflicted, he ordered Barayagwiza to pay a total of U.S.$105 million to the Rwandan plaintiffs. Although the plaintiffs are unlikely ever to receive any of this money, the judgment was a strong symbolic statement, the clearest verdict that a U.S. court is likely to deliver on the Rwandan genocide.
In July 1994, several Rwandans and members of their families filed complaints with Belgian judicial authorities against four Rwandans, two burgomasters and two political leaders, then resident in Belgium. The four were arrested and two of them were later transferred to the International Tribunal which took over their prosecution. Belgian judicial authorities, initially slow to investigate the complaints, were stung to action by public protests by complainants and their attorneys. They assigned an examining magistrate who carried out extensive investigations in Belgium, Rwanda, and Arusha, but none of the prosecutions of those still in Belgium has been carried through to the stage of a trial. This delay, as well as an unexpected change in position by the Brussels prosecutor, who asked that the charges in one case be dropped, have raised questions about whether political influence has impeded the judicial process. In any case, in late 1998 the Ministry of Justice suggested that the costs involved made any prosecutions for genocide unlikely.79
Also in Belgium, several Rwandan genocide victims, as well as the families of the Belgian peacekeepers killed in Rwanda, have taken the extraordinary step of filing complaints against Léo Delcroix and Willy Claes, respectively minister of national defense and minister of foreign affairs at the time of the genocide. They rely upon the strong language of a 1993 statute which specifically attributes to Belgian jurisdiction the right to prosecute serious violations of the 1949 Geneva Conventions regardless of the place of the crime or the nationality of the accused and the victim. The law defines as a crime not just the commission of such acts butalso the failure to act by those who know such crimes are planned or have begun, who have the possibility to act to prevent or halt them, and who do not do so.
In France, charges have been brought against only one person, the priest Wenceslas Munyeshyaka. After his arrest, a French court held that it had no competence to try his case. This decision was later reversed by the Appeals Court of Nimes. In January 1998, the Cour de Cassation upheld the decision of the Appeals Court, ruling that the case could be tried on the basis of the 1984 Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment, which has been incorporated into French criminal law. The case was returned to the trial court but has not been heard. Munyeshyaka is at liberty in France.
Swiss authorities arrested Alfred Musema, a politician and businessman, and later transferred his case to the International Tribunal. In 1998, authorities began proceeedings under Swiss law against a Rwandan burgomaster. Because violations of the genocide convention figure in military rather than civilian law in Switzerland, he will be tried by a military tribunal.
Canada has thus far undertaken no criminal proceedings, but, after a long hearing, an administrative arbiter decided that Léon Mugesera had incited to genocide by his notorious 1992 speech in northwestern Rwanda and ordered him expelled from Canada. The decision was appealed. In November 1998, an administrative tribunal heard new witnesses and confirmed the expulsion order with a decision of some one hundred pages. Mugesera has asked for the case to be further reviewed by federal court, but no action has yet been taken.
When an European Union (E.U.) delegation visited Rwanda in June 1998, British Minister of State Tony Lloyd said that E.U. countries were discussing how to ensure that every suspected genocide perpetrator is arrested in every country of the E.U.80 Dozens of such suspects are now living in Europe and North America. Hundreds of others are in various African countries. Although many African governments have arrested suspects who were then transferred to the international tribunal, none has yet indicated a willingness to begin genocide trials in their own courts. Most cite lack of resources to undertake such prosecutions. Were other governments to offer either technical assistance or funds to support such trials, the judgment of alleged perpetrators in African courts could have considerable impact in the region.Taking Responsibility
In May 1994, U.N. Secretary-General Boutros-Ghali admitted that the international community had failed the people of Rwanda in not halting the genocide. From that time through 1998, when U.S. President Bill Clinton apologized for not having responded to Rwandan cries for help and Secretary-General Kofi Annan expressed regret in vaguer terms, various world leaders have acknowledged responsibility for their failure to intervene in the slaughter. The archbishop of Canterbury has apologized on behalf of the Anglican church and the pope has called for clergy who are guilty to have the courage to face the consequences of their crimes.
Members of the Belgian Senate were the first to initiate an examination of the failures of their political leaders during the genocide. Spurred by a probing report by a preliminary ad hoc commission and by pressure from the families of the slain peacekeepers, the senators launched a broad inquiry into Belgian policy and actions during the genocide. After long hearings, they produced an extensive report in 1997 which lays out the successive errors in policy but does not treat the personal responsibility of the decision makers.
The next year, members of the French National Assembly investigated the policies of France, other foreign actors, and the U.N. in Rwanda, but unlike the Belgian senators, they did not take testimony under oath and they heard many important witnesses in closed session. In a report published at the end of 1998, they recognized that the French government had erred in supporting a government bent on genocide. They published less pertinent information on how decisions were made than did their Belgian counterparts and thus remained even further removed from establishing accountability for various political and military leaders.
The Sub-Committee on International Operations and Human Rights of the International Relations Committee of the U.S. House of Representatives tried in May 1998 to investigate U.S. policy during the genocide in Rwanda, but only Richard McCall of U.S.A.I.D., the U.S. foreign assistance agency, gave testimony. Other senior officials from the State and Defense Departments declined to attend. No serious efforts have been made within the State Department to examine why decisions were made or what consequences they produced during the genocide.
The United Nations examined the conduct of its peacekeeping operation in Rwanda, but the inquiry focused more on the technical and logistical aspects of UNAMIR than on the larger issue of responsibilities of senior U.N. officials and of member states in failing to act vigorously to avert or halt the genocide. U.N. authorities permitted General Dallaire and Captain Lemaire to testify at the international tribunal but only on a limited range of questions. Otherwise, the U.N.has indicated that U.N. personnel will not be permitted to testify in such national investigations as that of the Belgian Senate.
These inquiries and others by the press and human rights organizations have revealed something of the roles played by individuals who were in positions of national or international authority during the genocide. Much of the truth remains hidden, however, by the laws, regulations and practices long used to protect political leaders from accountability. With the exception of the complaints against former ministers Delcroix and Claes in Belgium, no effort has been made to hold policymakers personally and legally responsible for refusing to halt the slaughter. Researchers must continue trying to go beyond the relatively painless, generalized confessions of political leaders to analyze the decisions taken by individuals, so that those persons can be obliged to acknowledge their responsibilities at least in the public domain, if not in a court of law. Only in this way can we hope to influence decision makers in the future to never again abandon a people to genocidal slaughter.
On several occasions, Rwandans and foreigners proposed some kind of truth commission to gather the accounts of survivors or to hear the confessions of the guilty. In June 1998, the Organization of African Unity created such a panel to inquire into the Rwandan genocide. It may provide an opportunity for at least some survivors to be heard who still believe their voices are ignored in the world community and even in their own country. By exposing the responsibilities of Rwandans and foreign leaders in the catastrophe, the commission may help deter other leaders in Africa and elsewhere in the world from following a similar disastrous course.Conclusion
The Rwandan genocide stands alone for the way its organizers aimed to mobilize mass participation in murder. Far from hiding their objective, they advertised their goal of exterminating the Tutsi citizens of Rwanda in song and chant, through the press and over the radio. They exhorted Hutu to join the killing campaign, insisting that it concerned everyone. They carried out the worst massacres in broad daylight and in many communities they left the dead in full view.
By focusing fear and hatred on the Tutsi, the organizers hoped to forge solidarity among Hutu. But beyond that, they also aimed at creating collective responsibility for the genocide. People were encouraged to kill together, just as soldiers in a firing squad are ordered to discharge their weapons simultaneously so that no one should bear individual or total responsibility for the execution. No one person killed any one person, said one of the participants.
The leaders of the genocide, experienced at wielding power, knew how to use the state machinery and their network of personal contacts to mobilize large numbers of people. They expected to succeed and had planned carefully for the operation. With their quick, ruthless murders of political opponents that began on April 6, they intimidated the remaining dissidents. Then, strengthened by their apparent acceptance as a legitimate government by the international community, they pushed ahead with a speed and ease that may have exceeded their own expectations. By two weeks into the campaign, they had slain hundreds of thousands of Tutsi and squashed any significant open dissent.
But ultimately they failed in their goal of total mobilization for extermination. Hundreds of thousands of Hutu who lacked the courage or resources to openly oppose them resisted passively, most by withdrawing from political and community life, a few by working within the system to restrain its excesses.
Among those who did carry out genocide, actors participated in many ways: from the national leaders who aimed to extirpate the Tutsi down to the level of ordinary people who showed no taste for violence but wanted only to enrich themselves through pillage. As the roles varied, so did the motivations of the actors, some moved by virulent hatred, others by real fear, by ambition, by greed, by a desire to escape injury at the hands of those who demanded they participate, or by the wish to avoid fines for nonparticipation that they could not hope to pay. Whatever the role, whatever the motivation, participants must accept responsibility and be appropriately punished.
Outside Rwanda, most international leaders found mass slaughter of Tutsi tolerable provided it furthered or at least did not impinge on narrowly defined national interests. Many of their subordinates would not risk loss of favor and future advancement by arguing a moral position contrary to the course advocated by the powerful. A small number of foreigners did fight passionately to stop the slaughter, some in humanitarian and human rights organizations, some in governments and the U.N. An even smaller number struggled to save lives courageously within Rwanda.
Accurate accounts of the genocide must establish in all their complexity the roles of the leaders, the followers, and the dissidents within Rwanda as well as the parts played by various international actors. This is essential both for assessing fairly the behavior of individuals and for creating strategies for the future. We must find ways to increase the numbers and effectiveness of resisters against such crimes, whether within or outside the society at risk. We must understand how local and international protest can resonate back and forth to create the swell of outrage that will prevent or halt future genocides.
This work is one of the many that must come to establish the historical record, to lay the groundwork for justice for Rwandans and accountability for all others who failed to respond to the bonds of our common humanity. The story must be told.
2 Fondation Hirondelle, Libérations de Suspects du Génocide: Controverses et Vengéances; August 26, 1998, citing official sources. The U.N. Human Rights Field Operation estimated a total of 125,800 detainees at the end of March, 1998, 81,000 of them in central prisons, the rest in communal lockups. Arrests continued after that time, making 135,000 for the end of August a plausible figure. UNHRFOR Report...January-March 1998, p. 16.
3 United Nations, The United Nations and Rwanda, pp. 55-56. 4 Statute of the International Tribunal for Rwanda, Article 6,2. The resolution establishing the tribunal, S/RES/955, and the annexed statute is printed in United Nations, The United Nations and Rwanda, pp. 387-93. See also, E. David, Le Tribunal pénal international des Nations Unies pour le Rwanda, Dialogue, no. 186, octobre-novembre 1995 and M.-A. Swartenbroeckx, Le Tribunal pénal international des Nations Unies pour le Rwanda, in J.-F. Dupaquier, ed., La justice internationale face au drame rwandais (Paris: Karthala, 1996). 5 Statute of the International Tribunal for Rwanda, Article 6,3. 6 Ibid., Article 6,4. 7 Ibid., Article 6,5. 8 United Nations, Security Council, S/RES/1165 (1998), 30 April 1998. 9 Fighting Genocide Case, Houston Chronicle, August 22, 1998. 10 Human Rights Watch/FIDH interviews, Kigali, January 24, 1995, July 13, 1996; Arusha, February 7, 1997. 11 United Nations, General Assembly, Report of the Secretary-General on the activities of the Office of Internal Oversight Services, A/52/784, 6 February 1998. 12 United Nations, International Criminal Tribunal for Rwanda, Press and Public Affairs Unit, ICTR Fact Sheet, May 14, 1998. 13 AFP, UN war crimes court for Rwanda limited by funds: prosecutor, Kigali, February 24, 1998. 14 Amnesty International, International Criminal Tribunal for Rwanda, Trials and Tribulations, April 1998. 15 Fondation Hirondelle, Un Ancien Préfet en Mal de Témoins Directs pour sa Défense, June 17, 1998. 16 Fondation Hirondelle, Cooperation du HCR et du Kenya pour la Protection de Témoins à Décharge, September 8, 1997. 17 Fondation Hirondelle, Imprudence du Parquet: Le Lieu de Réfuge dUn Témoin Devoilé, June 17, 1998. 18 See the appendix for a list of those indicted and detained. 19 United Nations, International Criminal Tribunal for Rwanda, Press Release, ICTR/INFO-9-2-133, July 24, 1998. 20 Lara Santoro, For Rwandans, Justice Done Only for Others, The Christian Science Monitor, September 11, 1998. 21 Fondation Hirondelle, Le Mali Accepte dAcceuillir des Personnes Condamnees par le TPIR, February 16, 1999. 22 Ubutabera, Arusha, No. 24, October 27, 1997, found at http://persoweb.francenet.fr/-intermed . 23 The Organic Law of 30 August 1996 on the Organization of the Prosecution of Offences Constituting the Crime of Genocide or Crimes Against Humanity, Government of Rwanda, Official Journal, September 1, 1996. 24 The Organic Law of 30 August 1996, article 7,2; Daniel de Beer, et al., Rwanda, The Organic Law of 30 August 1996 on the Organization of the Prosecution of Offences Constituting the Crime of Genocide or Crimes Against Humanity, Commentary (Alter Egaux Editions, 1997, no place of publication), pp. 41-45 (hereafter cited asCommentary). 25 Although the legislators included crimes of sexual torture among those to be most severely sanctioned, judicial personnel have shown little interest in prosecuting such crimes. As of the end of March 1998, the United Nations Human Rights Field Operation in Rwanda had registered only eleven cases of persons charged with sexual crimes although such crimes were widely reported to have occurred during the genocide. United Nations Human Rights Field Operation in Rwanda, Report on the Human Rights Situation in Rwanda and the Activities of HRFOR, January-March 1998, HRFOR/RPF/16/January-March 1998/E, p. 12 (Hereafter cited as UNHRFOR, Report...January-March 1998). 26 De Beer et al, Commentary, p. 46, n. 1. 27 The Organic Law of 30 August 1996, article 8. 28 Ibid., article 30; De Beer et al, Commentary, p. 88. 29 The Organic Law of 30 August 1996, article 17; De Beer et al, Commentary, p. 47. 30 De Beer et al, Commentary, p. 41; Stef Vandeginste, Poursuite Des Présumés Responsables du Génocide et des Massacres Devant Les Juridictions Rwandaises, p. 2. 31 Government of Rwanda, Journal Officiel, numéro spécial, Novembre 30, 1996. 32 Government of Rwanda, Journal Officiel, numéro spécial, Novembre 30, 1996. 33 The Organic Law of 30 August 1996, article 15,2; De Beer et al, Commentary, p. 98. 34 Whether Article 15 of the ICCPR has been contravened is open to question since it provides that the prohibition of retroactivity must not be taken to inhibit the prosecution of crimes like genocide. It states: 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.... 2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations. 35 Human Rights Watch interview, Kigali, August 28, 1994; Serge Arnold, Government Considers Amnesty for Militiamen, AFP, September 23, 1994, FBIS-AFR-94-186, September 26, 1994. 36 Fondation Hirondelle, Libérations de Suspects du Génocide: Controverses et Vengéances, August 26, 1998. 37 Human Rights Watch/FIDH interview, by telephone, Brussels, October 9, 1998. 38 Charles Sekabaraga, Jugement Juste et Rapide des Présumés Coupables de Génocide, Rwanda Liberation, no. 33, April 18-May 18, 1998. 39 Human Rights Watch/FIDH interview, June 22, 1998. 40 Human Rights Watch/FIDH interviews, July 31 and August 10, 1998. 41 United Nations Human Rights Field Operation in Rwanda, Report on the Human Rights Situation in Rwanda and the Activities of HRFOR, January-December1997, HRFOR/RPF/16-An/1/1777/E, p. 30 (hereafter cited as UNHRFOR, Annual Report 1997). 42 Human Rights Watch/Africa, Rwanda, A New Catastrophe, vol. 6, no. 12, December 1994, p. 10. 43 UNHRFOR, Annual Report 1997, p. 9. 44 Fondation Hirondelle, Liberation de Suspects du Génocide: Controverses et Vengeances, August 22, 1998; Avocats sans Frontières, Rapport Annuel 1997, pp. 17-18. 45 UNHRFOR, Annual Report 1997, p. 26. 46 Human Rights Watch/FIDH, notes from trial observations, January to August, 1998; UNHRFOR Report...January-March 1998, p. 13; Ligue Rwandaise pour la Promotion et la Défense des Droits de lHomme, Centre de Documentation et dInformation sur les Procès de Génocide, Proces de Genocide: Un Nouvel Elan, July 1998, pp. 2-3 (Hereafter cited as CDIPG, Procès). The limited availability of lawyers will hinder efforts to speed up the trials. With only ten to fifteen lawyers available nationwide (see below), those involved at a large group trial will be unable to appear at other trials where they were scheduled to represent clients and those trials will have to be postponed. 47 One small nongovernmental organization, Legal Aid Rwanda, assisted prosecutors in 1998 by meeting with more than 450 detainees at Kigali central prison, helping to clear up questions about their legal files. Higher officials at the ministry of justice, however, gave a negative evaluation to the project and its staff left Rwanda. 48 The assessment apparently did not include the jurisdictions of Gisenyi, Ruhengeri and Kibuye. Avocats sans Frontières, Rapport, 1 semestre 1998, p. 15. 49 UNHRFOR Report...January-March 1998,p. 14. 50 As in other countries using civil law, Rwanda permits civil complainants to make their case for damages as part of the criminal proceedings. 51 Avocats sans Frontières, Rapport, 1 semestre 1998, p. 6. Persons other than lawyers are permitted to represent others in legal proceedings. The Danish Center for Human Rights provided the funds to train one hundred paralegal assistants who had completed training in early 1999. 52 United Nations, High Commissioner for Human Rights Field Operation in Rwanda, Genocide Trials to 31 October 1997, HRFOR/STRPT/59/2, 19 December 1997/E. 53 Avocats sans Frontières, Rapport, 1 semestre 1998, p. 9. 54 CDIPG, Procès, p. 4. 55 Human Rights Watch/FIDH interviews, May and June 1998 and notes from trial observations, 1998. 56 Ibid. 57 UNHRFOR, Annual Report 1997, p. 27. 58 Human Rights Watch/FIDH interview, August, 1998. 59 UNHRFOR Report...January-March 1998, p. 11. 60 Avocats sans Frontières, Rapport, 1 semestre 1998, p. 18. 61 CDIPG, Procès, pp. 3-4. 62 Ibid., p. 4; UNHRFOR Report...January-March 1998, p. 11. 63 Doug Schwarz, Rwandas Orphans Find a HomeWith One Another, Christian Science Monitor, May 12, 1998. Some 34 percent of Rwandan households are headed by women, but of course they are not all survivors of the genocide. United Nations, Commission on Human Rights, Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Work of the Commission: Report of the Special Rapporteur on violence against women, its causes and consequences, Addendum, Report of the Mission to Rwanda, E/CN/4/1998/54/Add.1, February 4, 1998, p. 6. 64 UNHRFOR, Annual Report 1997, p. 27; CDIPG, Procès, p. 6. 65 Human Rights Watch/FIDH notes from trial observations, May-June, 1998. 66 Avocats sans Frontières, Rapport, 1 semestre 1998, p. 20. 67 Human Rights Watch/FIDH, notes from trial observations, May 10, 1998. 68 Neil Boisen, Knowledge, Attitudes and Practices Among Inmates of Rwandan Detention Facilities Accused of Crimes of Genocide, The United States Institute of Peace, November 1997. 69 Avocats sans Frontières, Rapport, 1 semestre 1998, p. 15. 70 UNHRFOR Report. . . January-March 1998, p. 16. 71 Fondation Hirondelle, Liberation de Suspects du Génocide. 72 Agence France Presse, Release Considered for 80,000 Rwandans Held for Genocide, July 22, 1998. 73 Ibid. 74 Human Rights Watch/FIDH interview, Gitarama, July 13, 1996. 75 Human Rights Watch/FIDH interview, Kibungo, February 10, 1998. 76 Fondation Hirondelle, Liberation de Suspects du Génocide. 77 Ibid. 78 Boisen, Knowledge, Attitudes and Practices Among Inmates. 79 Human Rights Watch/FIDH interview, by telephone, Brussels, October 9, 1998. 80 United Nations, Office for the Coordination of Humanitarian Affairs, Integrated Regional Information Network for Central and Eastern Africa, Update no. 429 for Central and Eastern Africa, June 3, 1998.