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X. Equal Access to Justice: Prosecuting Crimes by RPA Soldiers

Equal access to justice requires that all citizens have the same rights to bring their claims before the courts. At least four UN bodies and numerous NGOs have established that some soldiers of the RPA committed serious violations of international humanitarian law by killing and otherwise abusing civilians in Rwanda since 1990. A Commission of Experts established by the Security Council in July 1994 concluded, for example, that in addition to the genocide of the Tutsi, war crimes and crimes against humanity had been committed by soldiers of the RPA, as well as by forces of the Rwandan government. The Commission, whose report was the catalyst for the establishment of the ICTR, “strongly recommend[ed]” that the Security Council ensure that the persons responsible for these crimes be brought to justice before an independent and impartial tribunal.²⁸⁹

According to estimates from experts working for the UN High Commissioner for Refugees between 25,000 and 45,000 persons were killed by RPA soldiers between April and August 1994.²⁹⁰ A former Rwandan minister of the interior in 1994 and 1995 has estimated that some 60,000 persons were killed by RPA soldiers between April 1994 and August 1995.²⁹¹

According to information from the Rwandan military justice system, it has prosecuted RPA soldiers responsible for killing approximately 100 civilians.²⁹² On June 12, 2008 the Rwandan government arrested four military officers in connection with the murder of 15 civilians, 13 of them clergy, in June 1994 (see below).²⁹³ If these officers are convicted, then about 115 Rwandan victims of crimes by RPA soldiers in 1994 would have received justice in Rwandan courts.  Tens of thousands of other Rwandans who suffered from crimes by RPA soldiers in 1994 would still have had no access to justice. To insist on the right to justice for all victims, as did the UN Commission of Experts, is not to deny the genocide, nor does such an insistence equate war crimes with genocide; it simply asserts that all victims, regardless of their affiliation, regardless of the nature of the crime committed against them, and regardless of the affiliation of the perpetrator, must have equal opportunity to seek redress for the wrongs done them.

In the four years after taking power, the RPF-led government prosecuted 32 soldiers accused of killing or otherwise violating the rights of civilians during the year 1994, of whom 14 were tried, convicted, and sentenced to prison.²⁹⁴ Most of those convicted were of lower ranks or were ordinary soldiers and they received punishments that were not proportional to the gravity of the crime. In government documents listing these cases, the crimes were called “crimes of revenge” or “human rights violations,” not war crimes or crimes against humanity. They were prosecuted as violations of the Rwandan penal code, not as violations of international humanitarian law.²⁹⁵

After 1998, Rwandan military courts prosecuted no soldiers accused of crimes allegedly committed in 1994. When the gacaca jurisdictions were organized, the first law (2001) included war crimes in the jurisdiction of the gacaca courts, but the 2004 law eliminated that provision. A public information campaign then insisted that RPA crimes were not to be talked about in gacaca.²⁹⁶ As one Rwandan commented,

The biggest problem with gacaca is the crimes we can’t discuss. We’re told that certain crimes, those killings by the RPF, cannot be discussed in gacaca even though the families need to talk. We’re told to be quiet on these matters. It’s a big problem. It’s not justice.²⁹⁷

Government officials have frequently said that anyone who suffered at the hands of a soldier should report him or her for prosecution. Given that discussing RPA war crimes has been and continues to be equated with holding “genocide ideology,” no Rwandan was ever likely to file a complaint.

Prosecution of RPA Soldiers outside Rwanda

After 1998 Rwandan authorities also sought to block the prosecution of RPA soldiers by jurisdictions outside Rwanda.  In 2001 when ICTR prosecutor Carla del Ponte began investigating RPA crimes, Rwandan authorities brought political and diplomatic pressure on her to halt the investigations. When the prosecutor did not respond immediately to pressure, the Rwandan government imposed new regulations on the travel of witnesses to the ICTR in Arusha, Tanzania, forcing the ICTR to suspend three genocide trials.²⁹⁸

In June and July 2003 Rwandan authorities made use of the good offices of the United States to broker an agreement with the prosecutor concerning the timing and nature of investigations and prosecutions in RPA cases.²⁹⁹ When the agreement failed to materialize, Rwanda supported a division of the mandate of the office of the prosecutor, an office that until 2003 carried out prosecutions for the ICTR as well as for the ICTY. The division of the office in effect removed Del Ponte from work on Rwandan cases and led to the naming of Hassan Bubacar Jallow as prosecutor of the ICTR.  As of April 2008 Prosecutor Jallow had not committed himself to prosecuting any RPA soldiers at the ICTR although he had not foreclosed that possibility.³⁰⁰

In November 2006 French judge Jean-Louis Bruguière issued international arrest warrants for nine RPA officers, several of them highly placed, on accusations of having shot down President Habyarimana’s plane in April 1994. The Rwandan government immediately broke diplomatic relations with France and expelled some French organizations from the country. In March 2008, Rwanda was still requiring the withdrawal of the warrants as a condition for resuming diplomatic relations with France.³⁰¹

In addition, the Rwandan government appealed for relief from the International Court of Justice (ICJ) on the grounds that the French order violated Rwandan sovereignty and the diplomatic immunity of three of the officers being sought (one an ambassador, another the army chief of staff, and a third the chief of protocol). In order for the ICJ to take on a case, both parties must agree to accept its jurisdiction. Thus far France has refused ICJ jurisdiction in this matter, so no further action has been taken by the court.³⁰² Two other officers named by the French judge also sued in Belgian court seeking to prevent Belgium from executing the arrest warrants; that case will not be heard until 2009.³⁰³

In February 2008 Spanish judge Fernando Andreu Merelles issued international arrest warrants for 40 high-ranking RPA officers. In his judicial decision Judge Merelles said that he had tried without success to obtain cooperation from Rwandan authorities in investigating at least two of the crimes. Rwandan authorities have not begun any judicial action in reaction to Judge Melles order although some have proposed prosecuting the Spanish judge for “genocide ideology.”³⁰⁴  High-ranking officials began denouncing the judge and his order in the press and at diplomatic gatherings, putting into effect their announced intention to deal with the Spanish order through political and diplomatic means.  President Kagame reportedly told a journalist, “He has no moral authority in doing that. … If I met him, I would tell him to go to hell—they have no jurisdiction over Rwanda, over me or over anybody."³⁰⁵ The ministry of foreign affairs called on other governments to ignore the arrest warrants.³⁰⁶  The minister of justice described the judicial order as “racist and negationist,” and asked African Union ministers of justice to condemn what he characterized as a neo-colonial attempt to reassert control over African states by a judicial coup d’etat.³⁰⁷ Showing again the link made by some Rwandan officials between discussion of RPF crimes and “genocide ideology,” Rwandan authorities said they were exploring the possibility of prosecuting the Spanish judge for “genocide ideology.”³⁰⁸

Parts of the French and the Spanish orders appear to be based on serious investigations and to have merit. Other parts of each are not fully substantiated by the information presented. Some information in the Spanish order, such as the figure of some 40,000 civilians killed by RPA soldiers in February 1993, seems to be inaccurate.³⁰⁹ Judges in both cases are continuing their inquiries and must evaluate further information in the most systematic and critical way possible.

A New Effort at RPA Prosecutions

In June 2008 ICTR Prosecutor Jallow and Rwandan Prosecutor General Martin Ngoga told the UN Security Council that Rwanda would prosecute four military officers on charges of having killed fifteen civilians, thirteen of them clergy, in June 1994. Jallow said that the ICTR had investigated the crimes but would entrust the actual prosecution to the Rwandan judicial system.³¹⁰  At the time of the announcement, two ICTR courts had just refused to transfer cases to Rwandan courts on the grounds that they did not provide adequate guarantees of a fair trial (see below).³¹¹ Faced with questions about how he could nonetheless entrust prosecution of RPA cases to a Rwandan jurisdiction, Jallow said the ICTR would monitor proceedings and would recall the cases to ICTR jurisdiction if they were not properly prosecuted.³¹²

It is not clear whether Rwandan authorities intend to prosecute more than this one case, apparently undertaken at least in part because of renewed international pressure as a result of the French and Spanish judicial action. Even if they were to continue this welcome initiative and prosecute others, this would not absolve the ICTR of responsibility for completing its mandate by also trying RPA soldiers accused of war crimes and crimes against humanity.

Interface with Other Judicial Systems

Rwandan police and prosecutors have called on the international police network, Interpol, and other national judicial systems to assist in tracking and arresting persons accused of genocide as well as at least one person accused of “divisionism.” They seek to have most of these persons extradited although they have also assisted judicial authorities in Belgium, Switzerland, and Canada in prosecuting Rwandans accused of genocide and related crimes in their own national jurisdictions. In April 2008 a French court ruled that Clavier Kamana should be extradited to Rwanda to stand trial for genocide. This decision was overturned on appeal.³¹³ In June, a court in the United Kingdom ruled that four Rwandans sought on charges of genocide could be sent back to Rwanda for trial, a decision that has been appealed.³¹⁴ If the decision is upheld, they would be the first individuals to be extradited to Rwanda for prosecution on genocide charges.

Rwandan cooperation with the ICTR has been inconsistent, but certainly on many occasions Rwandan officials have assisted the prosecution. Judicial officials have praised ICTR decisions that pleased them and been equally quick to condemn those with which they disagreed.

As the ICTR drew near the end of its operations, plans called for the court to transfer some of its remaining cases to national jurisdictions for prosecution. Rwanda has showed the greatest interest in receiving such cases, adopting a special law to govern the transfers and building special prison and detention facilities in order to meet international standards. Such transfers, involving persons indicted by the court, require approval by a panel of judges who must determine whether the defendant will receive a fair trial in the proposed jurisdiction. In 2007 and 2008, the ICTR prosecutor proposed the transfer of five cases to Rwanda. In the first two cases decided, the ICTR chambers held that defendants could not be assured of trials that would meet international standards and denied the prosecutor’s motions. The other three cases are pending.

Based on the research presented in this report, Human Rights Watch took the position that Rwandan courts were not certain to be able to provide fair trials, a position presented in amicus curaie briefs submitted to the ICTR chambers deciding on the transfers.³¹⁵