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V. "JUSTICE HAS LEFT US": NO LONGER CHILDREN, ACCUSED OF GENOCIDE
Rwanda is the first country to try people for acts of genocide committed while they were children. Those convicted of these crimes must be punished but at the same time they should be seen as victims entitled to special care aimed at their rehabilitation and reintegration into society. Balancing the community's need for justice against the best interests of the child is a difficult task in any circumstances, one made particularly complex here because of the scale and horror of the crimes committed. The Rwandan government has the obligation to deliver justice and at the same time to establish a strong juvenile justice system for the future. Thus far it has largely failed to do either. The Rwandan Penal Code defines "minors" as children aged between fourteen and eighteen at the time of the alleged infraction, and the term minor is commonly used in Rwandan parlance to denote people in this age group who have been accused of genocide.72 This report will use the term minor to refer to those accused of having committed genocide as children, even though they have since reached the age of majority. Some five thousand "minors" have been arrested since the end of the genocide, many arbitrarily, and most have been detained under inhumane conditions for years without trial.73 In June 2002, UNICEF estimated that 4,000 such minors, all now young adults, remained in prison.74 Starting in 1995, the Rwandan government repeatedly promised to bring them swiftly to justice. At various it has promised to release those below the age of criminal responsibility (fourteen at the time of the crime) and those against whom there was no evidence, to hire and train more investigators and prosecutors to compile their case files, and to ensure that the system as a whole would treat their cases as a priority.75 From the beginning though, progress was slow, in part because the Rwandan government and its international donors chose to allocate resources to other pressing problems. In 1999, when the government officially endorsed the creation of gacaca jurisdictions, officials further delayed action on juvenile justice.76 Over the years, the government has slowly increased the pace of genocide trials, yet has tried minors at a slower rate than adults. The government also failed to release significant numbers of people who had been wrongfully detained, including minors, until December 2000. By November 2001, the government claimed that it had released 1,500 detainees accused of committing genocide while they were children, by then all young adults. They were released because they were too young at the time of the alleged crimes to be held criminally responsible for their actions or because there was no significant proof against them.77 These prisoners, who should never have been arrested in the first place, lost their adolescence in prison. Since these releases, it has become even harder to draw attention to the plight of the thousands of young adults who are still languishing in detention for crimes they allegedly committed as children. As one report on the progress of genocide trials observed:
Legal Responsibility of Children for Genocide
Few minors are accused of being among the planners or most horrific perpetrators of genocide. Out of more than two thousand persons listed by the Rwandan government as suspected planners, instigators, and most notorious killers of the genocide, only 1 percent were under eighteen during the genocide. The International Criminal Tribunal for Rwanda has not indicted anyone for crimes committed while they were children, although its statute does not contain any limitations regarding age.81 Yet some Rwandans in the government and on the hills believe that child perpetrators are just as guilty as adults who committed genocide. Nearly all Rwandan participants in a 1995 study by Save the Children - USA recognized that the children were susceptible to influence by authorities, politicians, and parents, but concluded that these children committed crimes of their own volition and were not forced to do what they did. In all crimes other than genocide, the respondents felt that children should be punished differently from adults, but not so for genocide. Most of those interviewed said the punishment for children guilty of genocide should be death. A group of respondents from one area greatly affected by the genocide stated, "These children, one should not compare them with other children."82 Rwandan Legislation
Category one carries a maximum penalty of death for adults, or twenty years for those tried as minors. The organic law requires the attorney general to establish and publish a list of suspected category one offenders in the Official Gazette. The list, which is also available on the Rwandan government's web site, includes twenty-two suspects who were born between 1976 and 1979. Those born in 1976 could be considered adults if the government proved they committed crimes of genocide after the date of their eighteenth birthdays. In theory, being named on the category one list does not violate 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.84 According to the organic law and the gacaca law, children in the first category are to be tried as adults. With the establishment of the gacaca jurisdictions, panels of judges at the most local level are to assume responsibility for classifying suspects into categories. That juvenile defendants probably could not have the requisite capacity to organize genocide should likely exclude them from category one offenses; however this is not incorporated into the law. The organic law provides for minors (at the time of the crime) to be tried in proceedings separate from adults' trials. Within the existing civilian courts, called the Tribunals of First Instance, and in military courts, the organic law created specialized chambers with exclusive jurisdiction over the crime of genocide.85 Each specialized chamber was headed by a president, and comprised of benches of three magistrates. Within each specialized chamber, the law called for the formation of at least one bench of "magistrates for minors," to have exclusive jurisdiction over the cases of minors.86 These benches for minors, which once functioned somewhat effectively, now have largely ceased to operate, as discussed below, and minors are now routinely tried with adults. In any case, the law creating gacaca jurisdictions abolished the specialized chambers. Persons convicted of a crime who were minors at the time of its commission are entitled to reduced penalties. They cannot be sentenced to death or life imprisonment but to a maximum term of twenty years. For any other sentence, they should receive only half of the applicable penalty.87 Additionally, the Penal Code allows magistrates to consider mitigating circumstances in sentencing, which could further reduce penalties to a minimum of five years (to replace the death penalty), a minimum of two years (to replace a life sentence), and a minimum of one year (to replace a sentence of five to twenty years.)88 The penalty for category four crimes, whether committed by adults or minors, is restitution and should not involve imprisonment at all.89 To ease the burdens placed on the judicial system and to speed prosecution of all cases, the government has established a system of plea-bargaining which offers reduced sentences to suspects, adult and juvenile, who confess prior to trial. Confessions must include a detailed description of the offenses committed including the names of victims, witnesses, accomplices, and conspirators, and an apology and offer to plead guilty. The prosecutor has a three-month time limit to verify and accept or reject the confession. If accepted by the prosecutor, the case is forwarded to court where magistrates try the accused. The practice of plea-bargaining has resulted in many trials where a number of accused persons are prosecuted together in "group trials." If minors are involved in such cases, they are then tried together with the adults. 90 In practice, confessions have rarely been processed within the required time limit, and at present speed many may not even be registered by the time gacaca trials begin.91 In February 2002, less than half of approximately 16,000 confessions made to date had been processed. In order to ensure that prisoners who confessed in a timely fashion receive the reduced penalties to which they are entitled, prosecutors in Gitarama launched an effort to register, but not verify, 5,000 confessions made by prisoners in local cachots or lockups.92 Since the end of the genocide, the Rwandan government has detained over 120,000 persons accused of genocide, most of whom were jailed without regard for procedures specified by Rwandan law. The Rwandan National Assembly attempted to regularize these detentions by passing a law on September 8, 1996 that stipulated that detentions of adults and minors must be regularized by December 31, 1997 and that pretrial detention orders must be limited to six months.93 The Assembly then passed new laws extending the deadline for regularization of pretrial detention three times, most recently in July 2001. The 2001 law authorized continued pretrial detention of those arrested before January 2000 and still lacking case files, pending the establishment of gacaca jurisdictions. However, the law requires timely confirmation by the courts of provisional arrests warrants and completion of case files for those arrested more recently in conformance with the Code of Criminal Procedure.94 The organic law grants accused persons "the same rights of defence given to other persons subject to criminal prosecution, including the right to the defence counsel of their choice, but not at government expense."95 There is no right to state-funded counsel under Rwandan law, in violation of the International Covenant on Civil and Political Rights, which guarantees free legal assistance "in any case where the interests of justice so require,"96 and the Convention on the Rights of the Child, which guarantees accused children "legal or other appropriate assistance in the preparation of and presentation of his or her defense."97 Rwandan law allows detainees, including children, access to counsel only once a trial date has been set, which could be years after their arrest and initial interrogation.98 A new Rwandan law on child protection expressly prohibits subjecting children to torture and inhumane and degrading treatment and further criminalizes "any sadistic torture including disproportional punishment; ill-treatment; inhuman or degrading punishment on a child."99
The Rwandan Justice System
The Ministry of Justice and UNICEF operate a joint project, housed in the ministry, to deal with juvenile justice issues. The project originally had a mandate to work on cases of those accused of genocide as minors, to which has been more recently added responsibility to address the growing problem of child rape. Its tasks include assuring that cases of minors get priority, providing legal representation at trial, maintaining a database, and drafting a law on juvenile justice. Staff of the project have also verified the ages of detainees to ensure that older ones do not benefit from reduced penalties by lying about their ages. In November 2000, the project was funding twenty prosecutors (officers of the public ministry) and twenty-six investigators (inspectors of judicial police). All were supposedly working on the cases of minors but they made little progress, in part because they were sometimes assigned cases having to do with adults. In addition they often lacked means of transportation and communication. The project's biggest accomplishment has been organizing two "solidarity camps"104 and release from prison in 2000 and 2001 for those under the age of criminal responsibility, fourteen at the time of the crime, as discussed below. By the time these releases began, all of those known to have been children at the time of their alleged crimes of genocide and still in jail were over eighteen years old.105 The project is also charged with ensuring that minors have legal assistance at trial. In 1997 UNICEF reached a tentative and informal arrangement with the Rwandan bar association to provide attorneys to represent those charged as minors at UNICEF expense (to be paid on a per case basis with an honorarium and allowance for expenses, with estimated total costs of U.S. $1,000 per case). However, this agreement was not implemented at the time as UNICEF felt that funds "would be better directed towards improving the justice system as a whole."106 Avocats sans Frontières, which had been defending adults and minors in genocide trials, briefly suspended its representation of defendants tried as minors after this agreement but later resumed providing assistance after it saw that UNICEF and the bar association had failed to follow through.107 Since then, UNICEF has provided funding for the Ministry of Justice Project to retain lawyers for juvenile defendants, but this assistance does not reach all minors being tried. The coordinator acknowledged that there have been failures to provide the needed lawyers due to administrative errors as well as funding shortfalls. He said that the Ministry of Justice did not provide representation for any minors from March through September 2001.108 The Danish Center for Human Rights created a team of five judicial defenders to specialize in juvenile justice in 1999. Their work was interrupted when all Danish Center defenders were obliged to suspend their activities at various points in time due to conflicts among the Danish Center, the bar association, and the Corps des défenseurs judiciaires (Association of Judicial Defenders). Frustrated that they were not able to work, the team entered negotiations with the Ministry of Justice to represent minors through the Ministry of Justice/UNICEF Project in mid-2000. The coordinator encouraged them to begin working in July 2000 pending completion of formalities. In the succeeding months, they began work on thirty-eight cases and completed eleven of them. In mid-November 2000, the ministry, which had yet to sign the contract or pay the defenders for three months work, ordered them to suspend all work-including their representation of minors at trials already in progress. In December, the ministry terminated the agreement with the defenders.109 International donors have also continued to finance Rwandan and foreign lawyers and judicial defenders who, at times, represent defendants charged as minors independently of the project.110 Foreign lawyers who attempted to ensure that adults and children accused of genocide had the right to legal assistance initially found their efforts rebuffed. One European lawyer said that a senior justice official had once threatened him by saying that he must be Interahamwe for wanting to help other Interahamwe.111 Another said that, even in 2002, magistrates had complained to him that the quality of representation by Rwandan lawyers was very poor.112 The Ministry of Justice/UNICEF Project has yet to embark in earnest upon the major task of developing a juvenile justice system.113 The project has at times initiated efforts and suspended them shortly thereafter, citing budget shortfalls. In some cases it did lack the money but, according to some donors, the ministry had in some cases allocated the money to other projects. UNICEF has failed to require demonstrable progress in implementing the mandate of the project and, in some cases, has itself failed to provide the necessary funding. A senior UNICEF employee acknowledged in late 2001 that the juvenile justice system was still a "disaster."114 There have been a few limited initiatives to train justice officials in juvenile rights. In 1997, the Ministry of Justice, with support from UNICEF, provided a three-day training course in Nyanza for selected magistrates and prosecutors, but this was in fact more of a basic training course on the genocide law. The session dealing with minors lasted for only a few hours, and did not provide detailed instruction on the unique situation of minors or on the existence of special protections for minors under international standards.115 Between 1997 and 2001, there was no further training of judicial personnel regarding juvenile justice.116 Subsequent training sessions organized for magistrates have focused on fundamental aspects of the organic law and difficult legal issues arising out of the gacaca law. A foreign legal expert conducting some of the training stressed that training on more specialized issues such as juvenile justice would have to be addressed later.117 The government has created various initiatives to accelerate the preparation of case files for all detainees, adult and minor, with mixed success: screening commissions (commissions de triage) in 1995, mobile teams (groupes mobiles) in May 1997, then council chambers (chambres de conseil) in late 1997.118 Council chambers, which continue to function, have worked to meet the recurring deadlines for regularization of arrest and detentions by providing provisional arrest warrants (mandats d'arrêt provisoire) for prisoners presented to them. Prior to the December 31, 1997 deadline for pretrial detention, they released hundreds of detainees but, once that deadline had been extended, their work slowed.119 At the end of 1999, before the next extension expired, prosecutors and council chambers scrambled to regularize the pretrial detention of as many prisoners as possible by issuing provisional arrest warrants for them. Council chambers, which approved thousands of provisional arrest warrants in less than three months in 1999, were widely considered to be doing little more than rubber-stamping existing situations. One local human rights activist compared the council chambers to a "dipping tank" where large numbers of cows are dipped in pesticide. When the deadline passed and was once again extended by parliament, the council chambers slowed their pace once again. Note on Ages
It is sometimes difficult to verify ages of detainees either because births were never recorded or because communal records disappeared or were destroyed during the genocide and subsequent war. In the absence of written proof of age, investigators have resorted to interviewing the neighbors of those who claim to be juveniles and other imperfect methods to ascertain their ages. Further, records that do exist generally refer only to the year of birth, not the exact date, making it difficult to establish whether genocide suspects born in 1976 and 1980 had passed their fourteenth or eighteenth birthdays when the alleged crimes were committed. Prosecutors have asserted that prisoners have lied about their age in the hopes of receiving reduced penalties, justifying their challenges to detainees' claims of minority at the time of the genocide. When pressed to accord self-declared minors their rights, prosecutors and courts have given them the benefit of the doubt, but only after time-consuming investigations and litigation. This was the case in one trial in military court in Rwamagana and another before the Tribunal of First Instance in Ruhengeri. In both cases, the defendants had legal representation. Their lawyers successfully argued that the young men should be treated as minors because prosecutors were not able to prove that they were lying about their ages.121 Prison authorities seriously beat detainees who attempted to attend a training session on children's rights and the justice system, claiming that they were really eighteen in 1994 and thus should not be allowed to attend the training. They conducted the beatings in full view of judicial defenders working for the Danish Center for Human Rights who had come to lead the training.122 When not pressed to make special provision for minors, officials have treated all detainees as adults. As discussed below, courts have sentenced numerous minors to full penalties instead of the reduced prison terms that Rwandan law mandates. In Rilima prison in Kigali Rural, the director initially allowed only thirteen minors, all of whom were still younger than eighteen, to attend another training session with Danish Center judicial defenders about the criminal justice process and children's rights. Only after lengthy discussion with the trainers did the director allow 127 young adult detainees who were children at the time of their alleged crimes to attend. A person who witnessed the incident said that this was not likely a mere oversight. Correctional personnel commonly use the term minor, as defined in the penal code, to refer to those under eighteen at the time they allegedly committed genocide and they keep prison statistics according to this definition.123
Among the tens of thousands of persons detained since 1994 without regard for legal formalities or their rights are thousands of children. RPA soldiers arrested Jean Louis R., aged thirteen at the time of the genocide, on August 24, 1994 near his Kigali Rural home in Shyrongi. He told Human Rights Watch researchers that he was held first in a local bar and later transported to Kigali's Nyabugogo market, where he spent the night in a cargo container along with other prisoners, men and women, adult and children. He and the other prisoners were beaten before being placed in the container. Later, the soldiers tied their hands behind their backs and placed heavy bricks on their chests to extort confessions from them. Having witnessed others suffer, he confessed immediately once they began to tie his hands, though he maintains the confession was false. His father, who was detained with him, and other detainees in the container died that night. Prosecutors never processed Jean Louis R.'s "confession," and, in any case, he was too young to be held criminally responsible. He was finally released in late December 2000 because of his age.124 A thirteen-year-old genocide survivor from Nyamata was arrested-presumably by accident-on New Year's Day 1995. He had survived the massacres by hiding, but his parents and siblings were slaughtered. He told Human Rights Watch researchers that local authorities had summoned him to testify as to what he had seen from his hiding place. When he replied that he had not seen anything, they put him in custody. Perhaps they only meant to question him further, but somehow authorities kept him in prison and he ultimately spent six years incarcerated with adults and children accused of genocide. In late 1995, he met a group of RPA soldiers who he said attempted to organize his release. But authorities then transferred him to Gitagata Reeducation Center for Children, a center that housed some detainees who were below the age of fourteen at the time of the genocide. In 1998, he and several other boys were transferred again, this time to Gikondo central prison, he believes as punishment for having complained that there was not enough food at Gitagata. He was finally released only in December 2000 because of his young age.125 When a Human Rights Watch researcher brought the child's situation to the attention of a senior prosecutor who was unaware of the child's case, he first denied that anyone so young would have been detained at all. When reminded that the government had publicly acknowledged the detention of hundreds of children under fourteen and had recently taken steps to release some 500 of them, the prosecutor sighed and said, "There are always casualties of war."126 Alexander B. of Butare was fourteen when arrested in 1994. He said:
In April 1995, Human Rights Watch estimated that some 1,500 people were being arrested per week.128 UNHCR, UNICEF, and the U.N. High Commissioner for Human Rights (UNHCHR) had all complained about arrests and physical violence against children returning from refugee camps in 1995.129 Francine M., for example, aged eleven or twelve at the time of the genocide, said she was arrested in 1995 after a woman from her home region accused her. Five years later, the accuser came to visit her in detention and asked forgiveness for having falsely accused her. Francine M. begged her accuser to tell prosecutors that she was innocent but to no avail. Almost one year after that apology, at age eighteen, Francine was released because she was too young to be held criminally responsible.130 Authorities carried out many arrests of adults and children during the massive repatriation of Hutu refugees from Zaire (now the Congo) and Tanzania in late 1996 and in the following months. Many children and adults interviewed by Human Rights Watch reported being summarily arrested within days of their return from exile. Some repatriates from that period told researchers that they were afraid to speak to acquaintances in public or otherwise draw attention to themselves lest someone point a finger at them, leading to what might become indefinite detention in overcrowded, inhumane conditions. They added that many had learned that they could falsely accuse their rivals or their neighbors without consequence, for example in order to facilitate the taking of the accused's property. Marc B.'s father was arrested days after his return to Kigali from exile in November 1996, reportedly because of the role he played in a political party during the genocide. Authorities returned to arrest Marc B., who was fourteen at the time of the genocide, later the same day. A relative told Human Rights Watch researchers that the reason they gave for arresting the boy was that, as the oldest child in the family, he must have accompanied his father in the man's criminal acts. Marc B. remained in pretrial detention at the Gikondo central prison in early 2002.131 Some minors reported that they were arrested after police or local authorities came to their homes looking for adult family members who had fled, or were detained along with older relatives in group arrests. Eric R., who was fifteen years old at the time of the genocide, explained:
Two girls in Miyove, arrested in 1995, told Human Rights Watch researchers in 1998 that they were arrested after soldiers came looking for their brothers, but could not find them.133 André K. of Kigoma commune, Gitarama, told a similar story, but he remained in prison even after his father was arrested. He was fourteen during the genocide.
Some authorities continued to arrest children arbitrarily and in violation of the law long after emergency conditions had ended. Communal authorities arrested a Butare boy, only twelve at the time of the genocide, in August 1998. They should have known his age, having given him an identification card when he turned sixteen earlier that year.134 Miscarriage of Justice: Detention and Mistreatment of Children below the Age of Criminal Responsibility
In June 1995, the Ministry of Justice reopened the Gitagata Reeducation Center for Children, which served as a residential center for psychiatric patients prior to the genocide, to house some of the detained children who were below the age of responsibility.135 Gitagata technically had a capacity limited to 200 children but, at times, has housed more. Many "under-fourteens" never made it to Gitagata at all. Some, like Jean Louis R., literally missed the bus to take them there. He told Human Rights Watch he had gone to visit his uncle in the adult wing of Kigali central prison while a truck came to take the youngest children to Gitagata came and left without him.136 Others in prisons were told to wait for impending transfer, but their transfers never came. For those who were sent there, Gitagata initially represented an improvement over the abominable conditions in lockups and central prisons, described below. At the very least, they were no longer mixed in with adult inmates. When Human Rights Watch researchers visited Gitagata in February 1996, conditions appeared acceptable with the exception of an inadequate supply of water. One thirteen-year-old boy said he had not washed for a month. The director admitted that what little water they had, which the children carried in buckets from a nearby lake, was not safe to drink and they lacked the resources to boil it.137 There was less overcrowding than in prisons and lockups and children received some educational programming. One boy who was formerly detained there told Human Rights Watch researchers that he learned basic literacy skills at Gitagata.138 Another said he had not been able to take classes at Gitagata, but that was because he already knew how to read and write.139 For a while, one boy said, the children had had food and clothes and activities. By mid-1998, though, conditions at Gitagata grew progressively worse. Children then started to complain about chronic food shortages, lack of activities and programming, and epidemics of malaria and other diseases.140 In 2000, staff of UNICEF and other international agencies dealing with children in detention unanimously described conditions in Gitagata as abominable.141 At first, the opening of Gitagata also symbolized the prospects for under-fourteens to be rehabilitated and returned to their families. But, in fact, that turned out to be a long way off for most. In February 1996, the director of Gitagata told Human Rights Watch researchers that some seventy children out of 163 detained there had case files.142 But a U.N. human rights monitor who had been making weekly visits to Gitagata in 1996 said she had yet to see a single case file with her own eyes. Although she said that compiling files for fewer than two hundred children should not be an onerous task, she saw lack of organization and accountability hamper any real progress.143 As the years went by, there was less and less talk about case files for the hundreds of detained children below fourteen as they could not be held criminally responsible in any case. One hundred sixty-three children, less than one-fourth of the total under-fourteens who were detained, were released from Gitagata and reintegrated with their families in 1998.144 No further releases of this group were made until more than two years later. In November 2000, authorities transferred some five hundred under-fourteens from Gitagata, prisons, and lockups to a "solidarity camp" in Busogo, Ruhengeri organized by the Ministry of Justice/UNICEF Project on Children in Conflict with the Law and the National Commission on Unity and Reconciliation. There the young people followed a six week long program of ideological re-education as a last step before returning home. Of those transferred to the camp, approximately fifty were boys currently younger than fourteen years old who had been arrested for allegedly raping young girls recently. The rest were young men who had been detained for periods of years on genocide charges.145 Conditions in the camp were far from ideal-two young persons died of malaria and dozens of others were seriously ill-but they had enough to eat and, on the whole, Busogo represented an improvement from where they had been before. Participants at the camp were taught about Rwandan history and human rights, and were encouraged to accuse adults in the gacaca proceedings already being discussed at that time. Many of them may be faced with the dilemma of inculpating their own family members. Like participants in other solidarity camps run by the National Unity and Reconciliation Commission, the youths were required to perform military exercises, but unlike others, they did not learn to shoot firearms.146 ASOFERWA, a Rwandan NGO working on women's and children's issues, administered the programs at the camp and was charged with following up the children's reintegration into society. This is a daunting task given the number of orphans-estimated as one half the participants by one youth-the number who had had no contact with their families for years; and the number who had had little or no education and who did not know how to farm or otherwise make a living. Some Rwandans questioned whether the Busogo camp had given the youths, whose entire adolescence was spent in prison, sufficient background to be reintegrated into society.147 Several months after their release, Human Rights Watch researchers attempted to locate two of the young men we had interviewed at Busogo without success. Neighbors believed they had migrated to Kigali to try to make a living as domestic workers or on the streets. Officials closed Gitagata when most of its residents were moved to the 2000 solidarity camp, suggesting that they considered the problem resolved.148 But it soon became clear that authorities still detained hundreds of under-fourteens throughout the country. Sixteen were left at Gitagata because they were too sick to travel.149 A youth who had been detained at Gikondo rattled off the names of six fellow detainees who were below the age of criminal responsibility and who remained at that prison.150 The Prosecutor of Butare told Human Rights Watch researchers that, on a visit to one lockup in April 2001, he found three detainees who had been under fourteen at the time of the genocide.151 As more and more such cases came to their attention, officials at the Ministry of Justice told their keepers to hold them where they were and wait for further instructions.152 In September 2001, the Ministry of Justice/UNICEF Project on Children in Conflict with the Law organized another six-week solidarity camp in Kigali for approximately 400 additional under-fourteens in Kigali. Announcements broadcast on the national radio station encouraged fourteen- to eighteen-year-olds (at the time of the genocide) who had been freed in pre-gacacas, discussed below, to come to Kigali for the solidarity camp as well.153 International observers who had been urging the government to release the under-fourteens for years were taken by surprise by the announcement of these solidarity camps. At a monthly coordination meeting for actors in the justice sector a week after the Busogo camp had begun, a Human Rights Watch researcher asked representatives of the Ministry of Justice, U.N. agencies, donor embassies, and international NGOs about the camp. Most had not heard of the camp, and none knew whether there were concrete plans to release the participants after the camp.154 The Ministry of Justice/UNICEF Project likewise hastily organized the 2001 camp, without coordinating with UNICEF, the International Committee of the Red Cross, or other relevant actors in advance. UNICEF was notified of the camp less than a week before it began, when the Ministry of Justice asked it for money to pay for it. International officials have repeatedly raised the issue of minors detained illegally with the government but rarely achieved success. In an exceptional case, Michel Moussalli, then Special Representative of the U.N. Commission on Human Rights to Rwanda, spoke to President Kagame about the problem in October 2000 and obtained from Kagame the promise that the under-fourteens would be released by the end of the year.155 True to the president's word, the government did release some 500 under-fourteens in December 2000. The Rwandan government and Moussalli both gained international praise and positive press for this achievement.156 International attention was not, however, drawn to the fact that at least 400 others who were under fourteen in 1994 had not been released and would spend another year in prison. The extensive media coverage of the solidarity camps has given some observers the mistaken impression that all detainees who were children at the time of the genocide had been released, including those aged over fourteen, even though thousands of such minors remain in detention.157 In December 2001, after the camp had concluded, another young man who had been under fourteen years old during the genocide was identified in the Gisovu central prison in Kibuye. When his existence was brought to the attention of the local prosecutor, he was reportedly released.158 This case highlights the possibility that others, too, have been overlooked. Justice Delayed: Criminal Cases Dragging on for Years
Recent efforts to accelerate completion of case files for prisoners in Butare and Gitarama, spearheaded by the Belgian NGO Citizens' Network and the prosecutor general for the Nyabisindu court of appeals, have revealed that case files are in a much worse state than previously feared. Many prisoners in central prisons, adults and children, have no case files at all, i.e. they have never been through the council chambers. Existing case files may have no more than the detainee's name and identity card number. Few contain the results of comprehensive investigations. In September 2001, many detainees at a prison in Kibuye told an international aid worker they had not been interviewed by a prosecutor in up to three years, if ever.160 As in other aspects of the judicial system, minors are frequently last in line to be investigated. The Special Representative of the U.N. Commission on Human Rights to Rwanda reported that only 35 percent of prisoners aged fourteen to eighteen at the time of the genocide had complete case files at the end of 2000.161 When Human Rights Watch researchers visited Rutonde lockup in 1998, the minors detained there said that-despite overcrowding, lack of water, and poor sanitation-their most urgent complaint by far was that they had received no information or progress on their cases. Although the police inspector had been visiting the lockup daily, he interrogated only the adult prisoners. None of the twenty-two we interviewed said they had been questioned, despite the fact that they had been detained there for close to or more than a year.162 Even in 2002, some minors still lacked case files. Human Rights Watch researchers attended a ceremony in Kabagare district (formerly Murama commune) in Gitarama in February 2002 at which prisoners who had confessed asked the victims' families for forgiveness. Most of the 800 prisoners at Murama lockup had confessed, apparently motivated by Seventh Day Adventist religious beliefs. At the end of the ceremony, the prosecutor general for Nyabisindu announced the release of twenty-six prisoners who had spent seven years in the lockup though there were no concrete allegations of wrongdoing against them. He later told Human Rights Watch researchers that three of those released were minors in 1994.163 Primary responsibility for building case files lies with prosecutors and police inspectors, but their work has been extremely slow. Given their enormous workload, prosecutors designated to work on minors' cases have not had much opportunity to do so, as minors' cases have not been uniformly prioritized within the system. Although UNICEF had provided support for at least twenty-six special investigators for children (two per prosecutor's office) who began working in late 1997, the ground they were to cover is immense. The special investigators for children, based in the prosecutor's office, must coordinate with police inspectors based at the commune level, who conduct the bulk of the fact finding. With few working telephones at the commune levels, communication between the field and the office has been difficult and time consuming. UNICEF provided two motorcycles for each prosecutor's office for its special investigators to use. However, support for fuel and repair of broken vehicles has been difficult to obtain at times. "We heard UNICEF would supply fuel, and promised a per diem for [investigators] when they're in the field. So far we've been waiting," said a prosecuting attorney in Butare in 1998.164 When researchers visited the Gikongoro parquet, a prosecutor said the investigators' two motorbikes were broken and awaiting transport to a government garage in Kigali.165 Other prosecutors and investigators may not have had any training at all in children's rights. Prosecutors and ministry officials have taken several high profile actions towards completing minors' case files. In late August 2000, for example, the Ministry of Justice attracted international praise and media attention for reinstating mobile groups of prosecutors to prepare minors' case files in order to accelerate their eventual trial.166 These groups prepared tens of case files that month. However, they failed to transfer the files promptly to courts-a necessary step for the cases to move forward-allegedly because the ministry had no money to photocopy them.167 In 2001, prosecutors finally managed to make case files for hundreds of minors and released many of those against whom they found no evidence. With the help of a mobile group sponsored by the Ministry of Justice/UNICEF Project, Butare prosecutors completed seventy-five minors' files and sent them to the tribunal in March 2001. Shortly thereafter, though, the law creating gacaca jurisdictions entered into force, leaving courts and prosecutors in limbo, not knowing what to do next.168 Citizens Network has organized and financed intensive investigations for prisoners, adult and minor, in certain lockups in Gitarama and Butare provinces. It has also assisted prosecutors to interview detainees, adults and minors, in lockups and central prisons, and to register their confessions if they confessed. After initial investigations, prosecutors take detainees against whom there is no evidence or incomplete evidence to a meeting of the population of their sector. They present the detainees one by one and encourage the population to come forward to say what they know about their conduct during the genocide. At these presentations, which have been referred to as pre-gacaca presentations, prosecutors and prisoners who have confessed preach to the population that they have a religious duty to tell the truth. Prosecutors are supposed to free immediately all detainees who have been cleared by those attending at the meeting. As of October 2001, approximately 30 percent of those presented from Ntongwe lockup of Gitarama province had been freed after their communities cleared them of charges.169 Minors, the elderly, and the infirm are supposed to be given priority in these procedures. However, some adult detainees have reportedly bribed prosecutors to ensure that they will be presented at one of these meetings. 170 Minors are less likely to be able to raise money to do this. Peter R., a young man who was fourteen during the genocide, was freed amid cheers from the crowd at one public meeting attended by Human Rights Watch researchers in Ntongwe. Large numbers of people stood to defend him, alleging that an adult prisoner, who was also presented that day, had falsely accused Peter R. because of a property dispute. Peter R. had spent seven years in prison without ever speaking to a prosecutor. None of the other detainees presented that day were charged as minors171 nor did any minor detainees participate in another presentation Human Rights Watch observed in Runda the following week.172 The Ministry of Justice/UNICEF Project also initiated similar presentations in 2001 specifically for detainees who were minors in 1994. A Human Rights Watch researcher attended one of these presentations in Nyamirambo, Kigali, on May 7, 2001. Thirty-seven minors without case files had been brought from the Kigali central prison, but only seventeen were presented to the meeting. Six neighborhood residents came forward to accuse one boy. Those present affirmed the innocence of most of the others, though. Fourteen people lined up behind one boy to show they thought his hands were clean, and twelve behind others. No one stood up when others were presented-either because no one with evidence had come to the session, which had been announced on the radio, or because participants were reluctant to speak out. In a departure from the procedure used at the presentations organized by Citizens' Network, none of the minors was freed that day-not even those whom the public unanimously considered innocent.173 At a similar presentation for minors in Butare, the population "acquitted" one, accused seven, and did not come forward to testify either way for six others.174 Radio Rwanda reported that, out of 262 minors imprisoned at Rwamagana, "only" sixty-two, approximately 23 percent, were cleared in the presentations.175 Some detainees may go free because victims or others refuse to testify against them. In one case a woman felt unable to publicly accuse the man who, as a teenager, had raped her and her young daughter. In the absence of any accusations, he was released and the woman now laments that his release has caused her to experience the trauma of her rape all over again.176 Trials
The system has also failed to provide other special dispositions for minors, including due process protections guaranteed under the Convention on the Rights of the Child.179 As mentioned above, certain jurisdictions have continued to try minors together with adults rather than separately before judges designated specially to try minors.180 Judicial authorities also give inadequate consideration to the social background of the minor, to his or her mental state at the time of the alleged crimes, and to his or her emotional and mental immaturity and susceptibility to external influence and manipulation. As noted above, detainees, including minors, are allowed access to legal counsel only once a trial date has been set, often years after their arrest and initial interrogation. Further, not all have access to a lawyer even at trial in practice. Human Rights Watch researchers interviewed Robert U. in Gikongoro prison after his trial had already taken place.
Robert U. had confessed and received a reduced sentence under the confession and guilty plea procedure. However, the fact of confession does not diminish in any way the necessity and importance of defense counsel, particularly in the sentencing phase of those convicted as minors. For example, in the case of John S., the prosecutor recommended a sentence of twenty years (the maximum sentence permissible for minors convicted of category two crimes), yet the court ordered a sentence of five years after consideration of extenuating circumstances put forward by defense counsel.182 Courts have increasingly moved to try genocide suspects in groups in order to speed up trials. However, group trials have actually led to increased violations of the rights of those charged as minors and conflicted with the supposed prioritization of their cases. Group trials can take a long time to complete, exacerbated by the difficulty of coordinating the schedules of all involved. Some groups of defendants have grown so large as to be unwieldy, such as one in Rilima in 2000-2001 that had 126 defendants including six minors.183 In Rwamagana, a juvenile being tried in military court implicated thirty adults in his confession. His trial was then postponed for months as prosecutors searched for those adults, completed their case files, and joined them to the trial.184 The prevalence of group trials has also led to failures to try children separately from adults and before minors' benches. A Rwandan who has followed genocide trials closely since 1996 remarked that, around the same time that prosecutors began to try suspects in large groups, special minors' benches seemed to stop functioning. The Court of First Instance at Kibungo is the only court where he observed minors being tried separately since the group trials began, though not by minors' benches. A magistrate told him that the minors' benches were not suspended pursuant to an official policy. Rather, the magistrate reportedly said that many spots on the minors' benches had become vacant when magistrates had been transferred to other posts, and consequently the tribunals no longer used those benches.185 Even where minors' benches (which were formed in only some of the specialized chambers) existed, the magistrates presiding over them did not always have specialized knowledge of children's rights. Group trials also pose a dilemma for legal assistance. The coordinator of the Ministry of Justice/UNICEF Project said that group trials are not cost-effective from a juvenile justice perspective because they take too long and, thus, the project decided not to sponsor lawyers for them.186 Avocats sans Frontières and the Danish Center for Human Rights have represented detainees at group trials, providing enough lawyers or defenders to avoid conflicts of interest among the accused, for example between one who has implicated another who professes his innocence. They represent those charged as minors as part of the group, but acknowledge that they are not necessarily guaranteed the individual attention to which they are entitled.187 LIPRODHOR, a local human rights NGO that has monitored genocide trials since 1996, initially monitored trials of minors separately.188 However, with the advent of group trials, their observers found it too difficult to identify juvenile defendants.189 The only tangible benefit that Rwandan law grants for those charged as minors is reduction in penalty if convicted. Roger M., tried after he confessed, was freed after the court sentenced him to three years imprisonment, which he had already served in pretrial detention. He had confessed and pled guilty to the crime of second-category genocide, the category of genocide under Rwandan law reserved for perpetrators, conspirators, or accomplices of intentional homicide or serious assaults resulting in death. As discussed above, he said he had been forced by Interahamwe to kill his sister's small children, in order to save his own life.190 Attorneys of Avocats sans Frontières and defenders of the Danish Center for Human Rights have likewise found that many minors they represented at trial have been sentenced to time they already served in pretrial detention, in some cases even less. Avocats sans Frontières represented twelve minors at trial in 2000. All twelve were convicted, but ten were sentenced to less than seven years imprisonment.191 Courts have erroneously sentenced some minors to more severe penalties in numerous cases. Judicial defenders assisted Emmanuel M. in a twenty-eight-person group trial in Rusumo, Kibungo in 2000. Unfortunately, the defenders were not aware of his age until after the trial finished. Thus, they failed to request a reduced penalty for him and he was erroneously sentenced to the maximum penalty.192 Human Rights Watch researchers interviewed one boy in Kibungo who had been tried and convicted of genocide although, according to his reported age, he would have been only twelve at the time of the genocide and thus not chargeable.193 Another minor was sentenced to death although his case file clearly indicated that he was born in 1979 and, as such, could receive a maximum penalty of twenty years under the penal code. Appeal of the boy's sentence was pending as of December 2001.194 As noted above, Rwanda has not carried out a death sentence against any minors. Conditions of Detention
Separation of Children from Adults
While efforts to provide separate facilities for minors continue, the issue has lost its relevance for those accused of genocide. Detainees who were minors at the time of the genocide are a vulnerable group and should, ideally, remain separated from older adults. However, because they are now adults themselves, they may pose a danger to children accused of recent common crimes. The government has apparently failed to inform prison officials to abide by the provisions of the Convention on the Rights of the Child that require those presently under eighteen to be separated from those who have become adults.201 At the solidarity camp held in Busogo in 2000 for detainees who were below the age of criminal responsibility at the time of their alleged crimes, officials arranged for forty-eight children currently under fourteen, all of whom had been accused of raping young girls, to stay together with young men accused of genocide who were under fourteen in 1994. In some cases the boys and young men shared the same beds. A camp official told a Human Rights Watch researcher that he thought their sharing beds would reduce the incidence of homosexual acts among the older boys and had not considered the risk it posed for the younger ones.202 The first place of detention for most Rwandan prisoners is the local lockup, of which there are more than 150 around the country.203 District authorities, who report to the Ministry of Local Government and Social Affairs, control the lockups, but the central government does not provide a budget for their operation. Detainees, through their families, are responsible for their own food and supplies. It is difficult to monitor the large number of lockups dispersed across the country and local burgomasters, now called mayors, have at times denied access to international monitors seeking to investigate conditions in these lockups. The Ministry of Local Government, too, has at times refused to grant NGOs access to visit lockups. While conditions vary widely from one lockup to another, they have generally improved in recent years as the bulk of detainees have been transferred to central prisons, thus reducing overcrowding. However, cases of ill-treatment (particularly at the time of arrest and during the first days of detention) and instances of insufficient food, water, medicines, and poor sanitation still exist.204 Conditions in lockups can be abominable, far below recognized standards for adults as well as children. During and after the massive post-genocide arrests of 1995-1998, detainees complained of overcrowding to the point that they could not even lie down to sleep. At Rutonde lockup in 1998, some 464 detainees, all but nine accused of genocide, were crowded into the small space. Twenty-two were children, and nineteen were women. From the appearance and stories of the twenty-two boys who filed out from the lockup to speak with Human Rights Watch researchers, conditions inside were abysmal. All twenty-two had been there for close to or more than one year, and many said they were arrested soon after their return from refugee camps in Tanzania in December 1996 or January 1997. The boys were extremely thin and many had open sores, wounds, insect bites, and scabies covering their bodies.205 Many said they were suffering from malaria. Bernard S. told this story:
Detainees at Rutonde were allowed outside twice a day to use the two toilets dug behind the lockup. Family visitors were allowed to bring food and water daily, but were not allowed to meet or speak with detainees.
In 1997 and 1998, when living conditions in the lockups were far worse, detainees in some places also suffered from physical abuse by local authorities and security agents, particularly around the time of arrest. In Gikoro lockup in Kigali Rural, two boys detained there for common law crimes told Human Rights Watch researchers that they had been beaten indiscriminately: "The police come in and threaten us, telling us we're killers. Most of the people in here are accused of genocide. They make us lie down and hit us on our backs, or do handstands against the walls while they kick us."207 Several boys in different lockups across the country reported that guards would sometimes take detainees outside to allow their accusers to beat them. "Usually when someone accuses a person they come here and beat you. The guards take you out and the accuser then beats you," said Michael R., who had been detained in Rutonde lockup since April 1997.208 Fourteen-year-old Richard N., who was detained in Murambi lockup for four months in 1997 before being transferred to central prison, similarly complained that he had been removed from the lockup for interrogation by the police inspector, and was beaten by both the inspector and the survivors who accused him.209 One thirteen-year-old boy, ten at the time of the genocide, complained of having been beaten by a police inspector with metal rods in the presence of those who accused him in the lockup of Mugesera commune.210 In theory, lockups are only supposed to be a temporary detention facility. Prosecutors should compile case files for each prisoner and, once this is done, transfer him or her to the central prison, generally located in the provincial capital. Due to overcrowding in prisons and slowness of the justice system, however, detaining of prisoners including children in lockups for long periods became common practice. Some minors who spoke to Human Rights Watch researchers had stayed in their local lockups only a few days or months. Others are still there, years after their arrest. In preparation for gacaca, the government pushed prosecutors to complete case files in 2000-2001 and transfer detainees to central prisons despite the overcrowding in prisons. The southern provinces of Gitarama and Butare, with 9,774 and 5,194 pretrial detainees remaining in their lockups respectively in December 2001, have been slow to comply.211 A small number of organizations including the International Committee of the Red Cross and the NGOs Concern and Dignité en Détention have attempted to improve the conditions for minors in lockups, but their efforts alone are not sufficient. At first, transfer to central prisons was thought to be a step forward, indicating that a detainee's case was moving forward, and he or she might soon get a day in court. Minors are supposed to be given priority for these transfers, but most are not. While conditions at central prisons may be better than in lockups, they are well below recognized minimum international standards. Central prisons, too, are plagued by severe overcrowding and poor sanitation. When prosecutors made a concerted effort to prepare case files for those still in lockups and transfer them to central prisons in 2001, the resulting transfer of detainees exacerbated overcrowding in many prisons. Prisoners who can afford to pay for a shared bed typically sleep in unlit and poorly ventilated rooms, in tiered wooden bunks, sometimes four or five levels high. Their few belongings and clothing are strung in bags and on lines from the rafters and beams, crowding the interior overhead spaces. Those who came after interior spaces were already filled beyond capacity-or those with insufficient financial means-must sleep outside on the ground. Whenever the weather is bad, they are exposed to rain and cold. Later arrivals to prisons often lack blankets, plates, or basins, the few articles which were distributed to prisoners years ago. Minors, lacking the financial means, family support, or political clout possessed by the adults, are the least likely to have these basic supplies. Silas K., who was fifteen during the genocide, explained:
Despite the overcrowding, prisoners themselves maintain order and discipline within the prison blocks, relying on a tight hierarchy. Prison guards are few and remain outside the prison block walls. At the top of the prisoners internal social structure is the kapita general, Kinyarwanda for general captain, in charge of all prison blocks, followed by the vice captain, the secretary, and four captains in charge of food, health, women, and minors. Each block has its own captain, and beneath him or her there are different chiefs in charge of security and discipline, food distribution, and so on. These inmate authorities are elected by prisoners themselves or are appointed by the prison director or the captain of the block. In prisons with minors' wings, children mirror the same structure, and those in positions of power don baseball caps or berets with insignias denoting their authority and rank. Captains can also be recognized by the sticks they carry. On a visit to the minors' wing at Gikondo central prison, Human Rights Watch researchers observed young security team members walking around with long sticks, whacking boys to keep order and to clear the way.213 Discipline can, at times, be violent. Christopher K., aged twenty-one when Human Rights Watch researchers interviewed him, was the secretary general of the minors' wing at the Gikondo central prison. Conditions for minors there were generally better than in other central prisons. Christopher V. described the system of discipline under his authority in 1998:
Steven B., fourteen during the genocide, was a simple prisoner at Gikondo, not among the leadership. He described conditions as follows:
Beatings were reportedly most common after the time of arrest and initial interrogation. After the post-genocide period of massive arrests, reported beatings have been primarily described as "disciplinary," less frequent, and less severe. Laurent S., sixteen during the genocide, was arrested in Ntyazo commune in Butare in October 1994. Human Rights Watch researchers interviewed him in the minors' wing of the Butare central prison in March 1996:
Four out of five children Human Rights Watch researchers interviewed there that month reported beatings. Prison officials explained that boys had been disciplined for trying to climb up the door to their room, which had recently been closed off to limit the noise they made while they played.217 "I was kicked by one of the soldiers last Sunday," another boy, thirteen during the genocide, said. "I was playing cards and one of the boys climbed up [to look outside from a gap between the wall and the roof] and the military wanted to get him. I went to the doctor and got some medicine."218 Homosexual relations are reportedly common in prisons among adults and minors. One young man, twelve during the genocide, told Human Rights Watch researchers that then Minister of Internal Security Sheik Abdou Karim warned prisoners in Gikondo that anyone caught practicing homosexuality would be punished with 200 strokes of a cane. He said that instances of homosexual rape diminished after that.219 In his report on the situation of human rights in Rwanda for 2000, U.N. Special Representative Michel Moussalli referred to a similar incident, perhaps the same one, when a minister ordered anyone guilty of homosexual acts caned. Moussalli added that the risk of HIV/AIDS infection is increased when minors are not separated from adults.220 Foreign assistance workers, including some who specialized in prison issues and another who specialized in AIDS programming, said that they do not know of any programs to distribute condoms in prisons or jails or to educate detainees about HIV/AIDS prevention.221 The Rwandan NGO ASOFERWA, has provided educational assistance for minors in detention, primarily organizing adult prisoners to teach them. Prisoners organize and teach primary and secondary school classes at Nsinda prison in Kibungo.222 However, education has not been consistently available in all prisons. When Human Rights Watch researchers visited Nyanza prison in 1998, minors said there had been no classes for over a year.223 A girl who had been detained at Miyove explained that she was too busy keeping livestock and fetching water for prisoners to study.224 A boy told us the teachers at Gitarama prison refused to allow him to participate in their classes because he was supposed to be transferred to Gitagata any day. He told Human Rights Watch that two years passed before he was transferred.225 Prison authorities often deny minors the privilege of going outside to work, ostensibly because their small size and agility make them greater flight risks. In addition, representatives of Penal Reform International who help organize work projects for prisoners said that those who work outside must first purchase uniforms, which minors can rarely afford to do.226 A chief complaint among prisoners of all ages, along with the lack of justice, has consistently been lack of food. "It is up to the prisoners to make their food last through the day," said the deputy director at Butare I central prison in 1998. A typical ration was a small cupful of maize and beans per day.227 Adult prisoners, themselves undernourished, are concerned with their own survival, and children often eat last. Théogène N. was seventeen when he told Human Rights Watch researchers that adults would sometimes steal the children's food at Nyanza central prison.
Visitors bring extra food, but they were allowed to come only periodically. The captain of minors at Butare I described visits as follows:
Many minors-orphans, children who were separated or lost contact with their parents, and those whose families live too far or lack means of transportation-may not receive any visitors or extra supplies. Central prisons can be tens of miles or more each way from a family's home, and many prisoners' families cannot afford transportation. This was a problem for Butare orphan Pierre T., twelve during the genocide, from the time he was first detained at a local police station after his arrest and through his time in Nyanza central prison, tens of miles away.
At times, prisoners have gone days at a time without any food barring the assistance of family. The situation was particularly dire during a drought affecting much of Rwanda in 2000. During the drought, prison officials allowed family members to bring food every day instead of once a week, but many were unable to do so because they did not have enough to feed those at home. In cases of extreme need, religious workers, the International Committee of the Red Cross, and international NGOs sometimes intervened to provide food. "You hear the news on the radio," said one child. "There is famine in the country. It is worse in prison. It is common to spend three days without eating. Imagine for a child!"231 72 Décret-loi instituant le code pénal, Journal Officiel de la République Rwandaise, 17ème année, no. 13 bis, 1 juillet 1987, Livre Premier, ("Penal Code") Art. 77. 73 Human Rights Watch asked the Ministry of Justice for statistics on the numbers of people incarcerated for crimes allegedly committed while they were children on several occasions in 2001, which the International Committee of the Red Cross provides the government regularly, but the information was not forthcoming. The United Nations reported that 4454 juveniles were detained at the end of 2000. Officials at the Ministry of Justice and international agencies informally reported higher figures in 2001. UNICEF reported that the government had released 1,500 juvenile detainees as of November 2001. "Question of the Violation of Human Rights and Fundamental Freedoms in Any Part of the World, Report on the Situation of Human Rights in Rwanda Submitted by the Special Representative of the U.N. Commission on Human Rights to Rwanda, Michel Moussalli, Pursuant to Resolution 1999/20," U.N. Doc. E/CN.4/2000/41, February 25, 2000, para. 117; "Rwanda: Government frees 552 child genocide suspects," U.N. Integrated Regional Information Networks (IRIN), November 14, 2001. 74 "Rwanda: Interview with UNICEF Representative Theophane Nikyema," U.N. Integrated Regional Information Networks (IRIN), June 10, 2002. A November 2002 Rwandan government document puts the number of minors at 4,500, but does not say how many of these are accused of genocide as opposed to more recent crimes. Technical Committee and Ministry of Local Government, "Draft National Policy for Orphans and Other Vulnerable Children in Rwanda," November 12, 2002, p. 14. 75 Ministry of Labor and Social Affairs, Children: The Future of Rwanda, no. 3, September 30, 1995, p. 17; Coordination meeting of international actors in the justice system, Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ), Kigali, October 17, 2000. 76 Human Rights Watch interview, Kigali, July 18, 2000. Gacaca is a system of popular justice to try the backlog of genocide cases, as discussed below. 77 "Government frees 552 child genocide suspects," IRIN, November 14, 2001. 78 LIPRODHOR (Ligue Rwandaise pour la Promotion et la Défense des Droits de l'Homme) Centre de Documentation et d'Information sur les Procès de Génocide, Procès de Génocide au Rwanda Deux Ans Après (Dec. 96-Dec. 98), Kigali, 1999, p. 35. 79 Convention on the Prevention and Punishment of the Crime of Genocide, 1948. Rwanda became a party to the Genocide Convention in 1975. 81 Statute of the International Criminal Tribunal for Rwanda, art. 5. Annex to Security Council Resolution 955, U.N. Doc. S/RES/955, November 8, 1994. To date, the focus of international tribunals has been on prosecution of commanders and the worst offenders. The statute for a permanent International Criminal Court precludes the court from prosecuting anyone under the age of eighteen at the time of a crime. Rome Statute of the International Criminal Court, art. 26, U.N. Doc. no. A/CONF. 183/9 (July 17, 1998), 37 I.L.M. 999. Chief among the considerations that led to this limitation was that children accused and found guilty of such crimes are still entitled by law to special treatment and protection, aimed at furthering their education, rehabilitation and reintegration into their communities, which the Court would be hard pressed to meet; and a belief that adults who manipulated and used children's vulnerability towards their own destructive ends were more deserving of prosecution than children. The Special War Crimes Court for Sierra Leone, however, has the power to prosecute someone for crimes committed between the ages of fifteen to eighteen if it considers the accused to be among those "who bear the greatest responsibility." However, a report by the United Nations secretary-general recommended limiting this jurisdiction to cases where the prosecution would not interfere with the child's rehabilitation program. Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, U.N. Doc. S/2000/915, October 4, 2000, Paras. 29 - 38. 82 Save the Children Federation - USA et al., Children, Genocide, and Justice, p. 26. 83 "The organic law of 30 August 1996 on the Organization of the Prosecution of Offences Constituting the Crime of Genocide or Crimes Against Humanity," Official Gazette of the Republic of Rwanda, September 1, 1996. 84 Human Rights Watch, Leave None to Tell the Story, p. 752. 85 There are twelve Tribunals of First Instance in Rwanda, one for each of Rwanda's twelve administrative provinces. Tribunals of First Instance have general jurisdiction for all civil and criminal matters. Above them are four Courts of Appeal based in Kigali, Nyabasindu, Cyangugu, and Ruhengeri. At the top is the Supreme Court which is divided into six sections, including the Court of Cassation, which is the court of last resort for cases in the Tribunals of First Instance. Below the Tribunals of First Instance are canton courts, for minor criminal charges and small-sum civil suits. 86 Organic law, arts. 19 - 20. 88 Penal Code, arts. 73, 82, 83. 89 It is possible that many children in detention are accused only of property damages. Human Rights Watch is not aware of any statistics on this question. 90 Organic law, arts. 6 and 7. Many minors have not made use of the procedure, maintaining that they are innocent. Others refuse to confess out of suspicion of a system they have grown to distrust, or out of loyalty to or fear of reprisals from those they would have to name as accomplices (some of whom may be either their own family members or fellow detainees). Those who confess are not usually separated from the rest of the prison population, nor are pretrial detainees separated from convicted persons. 91 Human Rights Watch interview, Kigali, September 28, 2001. 92 Human Rights Watch interview, by telephone, with the prosecutor general for the Court of Appeals at Nyabisindu, Kigali, February 12, 2002. 93 This law applies only to prisoners accused of genocide. However, in practice, its norms have been applied to those accused of common crimes as well. Regularization of detention requires the creation and completion of the case file, known as the dossier, which includes the arrest warrant, the recorded testimonies of the witnesses and accusers, the charge sheet, and the pretrial detention order. 94 Law no. 35/01 of 7/7/2001 Relating to Provisional Modification of the Criminal Procedure Code for Persons Being Prosecuted for Genocide or Crimes Against Humanity, Committed Between 1 October 1990 and 31 December 1994 (English Version), Official Gazette of the Republic of Rwanda, no. 15, August 1, 2001, pp. 14-15, arts. 1 and 2. 95 Organic law, art. 36. Avocats sans Frontières (ASF) originally organized teams of foreign lawyers to defend genocide suspects. With time, more and more Rwandan lawyers were available for this task, and ASF organized and financed their representation of genocide suspects. In 2001, the Bar Association took over the role of providing Rwandan defense lawyers, and ASF no longer does so. A steering committee made up of the Bar Association, the Ministry of Justice, and UNDP processes requests to assign lawyers, who are paid with funding from UNDP. Judicial defenders, who have had limited legal training, are also authorized to represent genocide suspects at trial. The Danish Center for Human Rights sponsors some 110 of these defenders, and others belong to the Corps des Defenseurs. 96 International Covenant on Civil and Political Rights, art. 14(3)(d). 97 Convention on the Rights of the Child, art. 40(2)(b). 98 The Convention on the Rights of the Child states that every child deprived of liberty "shall have the right to prompt access to legal and other appropriate assistance as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority and to a prompt decision on any such action." Art. 37(d). 99 Law Relating to Rights and Protection of the Child against Violence, arts. 20 and 32 (English version). 100 Organic law setting up "GACACA Jurisdictions" and organizing prosecutions for offences constituting the crime of genocide or crimes against humanity committed between October 1, 1990 and December 31, 1994, No 40/2000 of 26/01/2001, Official Gazette of the Republic of Rwanda, no. 6, March 15, 2001. 101 Human Rights Watch press release, "Rwanda: Elections May Speed Genocide Trials," October 4, 2001. 102 Cour Suprème Département des Juridictions Gacaca, Projet, Manuel explicatif sur la loi organique portant création des juridictions Gacaca, 2001, p. 131. 103 Human Rights Watch, Leave None to Tell the Story, pp. 748-749. 104 Solidarity camps are organized by the National Commission on Unity and Reconciliation (NURC) to provide reeducation. Camps have been held for various segments of the population including returning refugees, students beginning university, and local government officials. 105 Human Rights Watch interviews, Kigali, November 16, 2000 and September 27, 2001 and with staff of international organizations working with children under fourteen, September 24, 2001. 106 Human Rights Watch interview with Steven Allen, UNICEF country representative, February 2, 1998. 107 Human Rights Watch interview, Kigali, November 14, 2000. 108 Human Rights Watch interview, Kigali, September 27, 2001. 109 Human Rights Watch interviews, Kigali, December 11, 2000 and November 16, 2000. 110 Avocats sans Frontières planned to cease provision of foreign defense lawyers in June 2002. Human Rights Watch interview, Kigali, February 20, 2002. 111 Human Rights Watch interview, Kigali, May 17, 2001. 112 Human Rights Watch interview, Kigali, February 20, 2002. 113 Human Rights Watch interviews, Kigali, September 27, 2001 and November 16, 2000. 114 Human Rights Watch interview, Kigali, September 12, 2001. 115 See Aloys Habimana, CLADHO (Collectif des Ligues et Associations de Défense des Droits de l'Homme au Rwanda), Seminaire sur les Procès des Mineurs, 1997. 116 Human Rights Watch notes from the meeting, April 30, 2001. 117 Human Rights Watch interview, Kigali, February 10, 2002. 118 Human Rights Watch, Leave None to Tell the Story, p. 755. 121 Human Rights Watch interviews, Kigali, December 11, 2000 and November 14, 2000; Radio Rwanda evening news broadcast, October 5, 2000. 122 Human Rights Watch interview, Kigali, December 11, 2000. 123 Human Rights Watch interview, Kigali, December 11, 2000. 124 Human Rights Watch interview, Busogo, Ruhengeri, December 18, 2000. 125 Human Rights Watch interview, Busogo, Ruhengeri, December 18, 2000. 126 Human Rights Watch interview, Kigali, December 19, 2000. 127 Human Rights Watch interview, Butare, March 15, 1996. 128 Human Rights Watch, "Rwanda: The Crisis Continues." 129 Ministry of Labor and Social Affairs, Children: The Future of Rwanda, no. 3, September 30, 1995, p. 8 130 Human Rights Watch interview, Busogo, Ruhengeri, December 18, 2000. 131 Human Rights Watch interview, Kigali, February 16, 2002. 132 Human Rights Watch interview, Rutonde Cachot, Kibungo, February 19, 1998. 133 Human Rights Watch interview, Miyove Prison, February 13, 1998. 134 Human Rights Watch interview, Busogo, Ruhengeri, December 19, 2000. 135 Then Ministry of Gender, Family and Social Affairs, the division of social affairs of which is now incorporated in the Ministry of Local Government, took over its administration. A local NGO, ASOFERWA, was responsible for administration and programming at Gitagata. 136 Human Rights Watch interview, Busogo, Ruhengeri, December 18, 2000. 137 Human Rights Watch interviews, Gitagata Reeducation Center, February 28, 1996. Prison guards were present while researchers interviewed the children. 138 Human Rights Watch interview, Busogo, Ruhengeri, December 18, 2000. 139 Human Rights Watch interview, Busogo, Ruhengeri, December 18, 2000. 140 Human Rights Watch interviews, Busogo, Ruhengeri, December 18, 2000. 141 Human Rights Watch interviews, Kigali, July 31, 2001, November 7 and 14, 2000, and July 18, 2000. 142 Human Rights Watch interview, Gitagata, February 28, 1996. 143 Human Rights Watch interview, Kigali, March 18, 1996. 144 U.N. Integrated Regional Information Networks (IRIN),Update no. 625 for Central and Eastern Africa (Tuesday 9 March 1999). 145 Numbers given range from 484 to 509 participants. 146 Human Rights Watch interviews, Busogo, Ruhengeri, December 18-19, 2000. The medical assistant at the camp attributed the illnesses to the fact that many had been given only half the recommended dosage of chloroquine when ill with malaria when they were detained elsewhere, and that those who had become resistant to the drug had had no alternative treatment. 147 "Le sort des mineurs relaxés," Amani, no. 24-25, February - March 2001, p. 8. 148 The Ministry of Local Government reopened Gitagata in August 2001 to house child soldiers formerly with Hutu rebels who had recently been captured or surrendered. See Human Rights Watch, "Rwanda: Observing the Rules of War?" 149 Human Rights Watch interview with Jean Louis Ndahirwa, coordinator, Ministry of Justice/UNICEF Project on minors in conflict with the law, November 16, 2000. 150 Human Rights Watch interview, Busogo, Ruhengeri, December 18, 2000. 151 Human Rights Watch interview with Jules Marius Ntete, Prosecutor of the Republic, Butare, April 25, 2001. 152 Human Rights Watch interviews with Jean Louis Ndahirwa, Kigali, November 16, 2000 and with Jules Marius Ntete, Butare, April 25, 2001. 153 Human Rights Watch interview with Jean Louis Ndahirwa, September 27, 2001. 154 Coordination meeting hosted by GTZ, Kigali, November 15, 2000. 155 Statement of the Special Representative of the U.N. Commission on Human Rights to Rwanda Mr. Michel Moussalli, 55th Session of the GA of the U.N. (3rd Committee), New York, November 1, 2000. 156 Maggie O'Kane, "Children of Genocide: Six years after one of the worst massacres in history, the genocide children are going home," Guardian (London), December 21, 2000. 157 Avocats Sans Frontières, Justice Pour Tous au Rwanda: Rapport d'activités 2000, Kigali, December 2001, p. 19. 158 Human Rights Watch interview, telephone, Kigali, December 20, 2001. 159 Human Rights Watch interview, Kibungo, February 19, 1998. 160 Human Rights Watch interview, Kigali, September 28, 2001. 161 Question of the Violation of Human Rights and Fundamental Freedoms in Any Part of the World, Report on the Situation of Human Rights in Rwanda Submitted by the Special Representative of the U.N. Commission on Human Rights to Rwanda, Michel Moussalli, Pursuant to Resolution 2000/21, U.N. Doc. E/CN.4/2001/45, March 21, 2001, para. 29. 162 Human Rights Watch interviews, Rutonde, Kibungo, February 14, 1998. 163 Human Rights Watch interview, Kabagare, Gitarama, February 15, 2002. 164 Human Rights Watch interview, Butare, February 17, 1998. 165 Human Rights Watch interview, Gikongoro, February 16, 1998. 166 See, e.g., "Rwanda vows to speed trials of minors: 4000 youths held in 1994 massacres," Reuters, August 13, 2000. 167 Human Rights Watch interview, Jean Louis Ndahirwa, Kigali, November 16, 2000. 168 Human Rights Watch interview with Jules Marius Ntete, Butare, April 25, 2001. 169 Parike Ya Gitarama, Imbonerahamwe igaragaza ibyagezweho n'igikorwa cyo kujyana abafungwa ku mirenge bakekwaho kuba ariho bakoreye icyaha (genocide) PAID/PJG, September 27, 2001. Human Rights Watch interviews, Kigali, October 9 and September 28, 2001. 170 Human Rights Watch interviews Ntongwe, September 25, 2001; Gisenyi, September 20, 2001; Kigali, August 30, 2001. 171 Human Rights Watch field notes, Ntongwe, Gitarama, September 25, 2001. 172 Human Rights Watch field notes, Runda, Gitarama, September 30, 2001. 173 Human Rights Watch field notes, Kigali, May 7, 2001. 174 Radio Rwanda evening news broadcast, May 21, 2001. 175 Radio Rwanda, morning news broadcast, November 23, 2001. 176 Human Rights Watch interview, Kigali, February 16, 2002. The gacaca law classifies rape in the first category of genocide crimes. As such, rape will fall outside of the jurisdiction of gacaca courts and may only be tried in the regular criminal courts. 177 Avocats Sans Frontières, Justice Pour Tous au Rwanda, p. 19. 178 Felicien Kamashabi, "Les procès de génocide continuent," Le Verdict, No. 38-39, May-June 2002, p. 11. 180 Avocats Sans Frontières, Justice Pour Tous au Rwanda, p. 19. 181 Human Rights Watch interview, Gikongoro prison, February 6, 1998. 182 Human Rights Watch interview, Kigali, February 4, 1998. 183 Human Rights Watch interview, November 14, 2000; Radio Rwanda Evening News Broadcast, June 15, 2001. 184 Human Rights Watch interview with foreign lawyer, November 14, 2000; Radio Rwanda evening news broadcast, October 5, 2000. 185 Human Rights Watch interview by telephone, Kigali, January 28, 2002. 186 Human Rights Watch interview, Kigali, November 16, 2000. 187 Human Rights Watch interviews, Kigali, December 11 and November 14, 2000. 188 See LIPRODHOR, Procès de Génocide au Rwanda Deux Ans Après, pp. 33-35. 189 Their most recent report does not present data on trials of detainees who were minors at the time of the crime. LIPRODHOR, Quatre ans de procès de génocide. 190 Human Rights Watch interview, Taba, Gitarama, February 7, 1998. 191 Avocats Sans Frontières, Justice Pour Tous au Rwanda, p. 19. 192 Human Rights Watch interview, Kigali, December 11, 2000. 193 Human Rights Watch interview, Kibungo Prison, February 19, 1998. The Rwandan government carried out one public execution of twenty-three people convicted of genocide in April 1998, all adults, but has not carried out any death sentences since then. 194 Avocats Sans Frontières, Justice Pour Tous au Rwanda, p. 19. 195 Human Rights Watch/Africa, "Rwanda: The Crisis Continues," p. 4. and "Human Rights Watch/Africa, "Rwanda: A New Catastrophe?," A Human Rights Watch Report, vol. 6, no. 12(A), December 1994, p. 10. 196 See U.N. Standard Minimum Rules for the Treatment of Prisoners, adopted Aug. 30, 1955, by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders. 197 Convention on the Rights of the Child, art. 37(c). 198 Question of the Violation of Human Rights and Fundamental Freedoms in Any Part of the World, Report on the Situation of Human Rights in Rwanda Submitted by the Special Representative of the U.N. Commission on Human Rights to Rwanda, Michel Moussalli, Pursuant to Resolution 1999/20, U.N. Doc. E/CN.4/2000/41, February 25, 2000, para. 117. 199 Human Rights Watch interviews, Kigali, October 1, 2001; December 11 and November 14, 2000. 200 Human Rights Watch interview, Kigali, February 13, 2002. 202 Human Rights Watch interviews, Busogo, Ruhengeri, December 18-19, 2000; 203 Previously known as communal cachots, there was at least one in each of Rwanda's 152 communes. In March 2001, as part of a decentralization scheme, the 152 communes were transformed into 106 districts. The cachots remain in place. 204 Lige Rwandaise pour la Promotion et la Défense des Droits de L'Homme (LIPRODHOR), Quatre ans de procès de génocide : Quelle base pour les « Juridictions Gacaca » ?, Kigali, July 2001, pp. 31-32. 205 Human Rights Watch field notes, Rutonde cachot, Kibungo, February 19, 1998. 206 Human Rights Watch interview, Rutonde cachot, Kibungo, February 19, 1998. 207 Human Rights Watch interview, Gikoro cachot, Kigali Rural, February 13, 1998. 208 Human Rights Watch interview, Rutonde cachot, Kibungo, February 19, 1998. 209 Human Rights Watch interview, Byumba II Prison, February 20, 1998. 210 Human Rights Watch interview, Nsinda Prison, Kibungo, February 19, 1998. 211 Statistics as of December 15, 2001 provided by LIPRODHOR, January 30, 2002. 212 Human Rights Watch interview, Kibungo Prison, February 19, 1998. 213 Human Rights Watch field notes, February 14, 1998. 214 Human Rights Watch interview, Kigali, February 14, 1998. 215 Human Rights Watch interview, Kigali, February 14, 1998. 216 Human Rights Watch interview, Butare, March 15, 1996. 217 Human Rights Watch interviews, Butare, March 6 and 15, 1996. 218 Human Rights Watch interview, Butare, March 6, 1996. 219 Human Rights Watch interview, Busogo, Ruhengeri, December 18, 2000. 220 "Question of the Violation of Human Rights and Fundamental Freedoms in Any Part of the World, Report on the Situation of Human Rights in Rwanda Submitted by the Special Representative, Michel Moussalli, Pursuant to Resolution 1999/20," U.N. Doc. E/CN.4/2000/41, February 25, 2000, para. 116. 221 Human Rights Watch interviews, Kigali, February 13 and 23, 2002. 222 Human Rights Watch interview, Kigali, February 13, 2002. 223 Human Rights Watch interviews, Nyanza, Butare, February 15, 1998. 224 Human Rights Watch interview, Busogo, Ruhengeri, December 18, 2000. The girl was referring to work programs organized for prisoners. 225 Human Rights Watch interview, Busogo, Ruhengeri, December 19, 2000. 226 Human Rights Watch interview, Kigali, November 14, 2000. 227 Human Rights Watch interview, Butare, February 15, 1998. 228 Human Rights Watch interview, Nyanza, Butare, February 15, 1998. 229 Human Rights Watch interview Butare I Prison, February 15, 1998. 230 Human Rights Watch interview, Nyanza, Butare, March 24, 1996. 231 Human Rights Watch interview, Busogo, Ruhengeri, December 19, 2000.
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