Prosecuting
Genocide in Rwanda
The Gacaca system
and the International Criminal
Tribunal for Rwanda
The Norwegian
Helsinki Committee
Report II/2002
Preface
The
Norwegian Helsinki Committee for Human Rights was founded in 1977. It
is a member of the International Helsinki Federation for Human Rights
(IHF) whose aim is to monitor state compliance with the standards of
the Helsinki Act, subsequent Organization for Security and Cooperation
in Europe (OSCE, previously CSCE) human rights related documents and
international human rights standards. The IHF has a consultative
status with the UN.
Although
Rwanda is outside of the geographical scope of the Norwegian Helsinki
Committee, the organisation decided to send a fact-finding mission to
study the efforts of the government of Rwanda to promote
reconciliation after the 1994 genocide. A second aim of the mission
was to evaluate the functioning of the International Criminal Tribunal
for Rwanda (ICTR), which was established by the UN Security Council in
1994.
The
Norwegian Helsinki Committee has since early 1990s promoted
accountability for crimes against humanity and war crimes in the wars
of the former Yugoslavia and in other conflict areas within the OSCE
region. Since 1997 it has been involved in international NGO work to
campaign for the establishment of a permanent international criminal
court. As a supplement to these efforts, the Committee decided to
study national and international efforts to facilitate prosecution of
the 1994 genocide and promote reconciliation in Rwanda.
Gunnar
M. Karlsen and Sylo Taraku researched the report. The Norwegian
Helsinki Committee wants to thank the students of The University
College of Buskerud, Vibeke Jonassen, Tone Ellefsrud and Arild
Jonassen for help in the collection of data.
The
report was written by Sylo Taraku and edited by Gunnar M. Karlsen.
Oslo,
September 2002.
Bjørn Engesland
Secretary General
Legal
settlements after massive abuses of human rights are regarded as means
to achieve peace and reconciliation. Even if international legal
settlements are a relatively new phenomenon, national settlements have
existed throughout history. Justice has not always been the main goal.
Traditionally, the states have chosen different ways to handle a
traumatic past. Strategies include legal settlements, truth
commissions, compensation, amnesty, or simply not doing anything at
all.
With
approximately one million people killed during three months in
April-July 1994, the genocide in Rwanda was one of the most extensive
of the 20th century. The international community did too
little to prevent the genocide, but wanted through establishing the
International Criminal Tribunal for Rwanda (the Arusha Tribunal), to
prosecute the main architects of the genocide and thereby contribute
to the revival of peace and reconciliation. The Tribunal may also
contribute to the development of international legal practice for the
prosecution of individuals for crimes against international
humanitarian law.
At the same time, the Rwandan authorities are
conducting a much more extensive legal settlement. More than one
hundred thousand suspects are held in overloaded prisons in Rwanda
waiting for trials. In order to face this great challenge, the
authorities have introduced “popular courts”, called “Gacaca”.
This process is also a part of the country’s strategy to achieve
national unity and reconciliation.
This report focuses on the two parallel legal
settlements of Rwanda and their challenges. The report is based on the
Norwegian Helsinki Committee’s study trip to Rwanda and Tanzania in
February 2002. The trip included interviews with representatives of
Rwandan authorities, non-governmental organisations (NGOs), religious
leaders, academics, students, journalists, people accused of genocide,
representatives of international organizations, and ordinary people.
The delegation from the Helsinki Committee followed, in short
sequences, several ongoing cases at the Arusha Tribunal and
interviewed representatives from the three units of the Tribunal: the
court chambers, the prosecution and the administration, as well as
independent observers. In addition, the report is based upon a variety
of relevant international reports and studies.
Rwanda
is among the most densely populated and poorest countries in Africa.
Approximately eight million people inhabit an area of 26,338 square
kilometres.
Rwanda
remained relatively inconspicuous until the country in 1994 suffered
one of the most atrocious genocides of the 20th
century. In the course of three months from April to July
approximately one million people were killed and tens
of thousands of women were raped.
To
discover the reasons for what happened in 1994 and to understand the
background of today’s settlement in Rwanda, both on a national and
on an international level, we need to take a closer look at the
country and its earlier and recent history.
”Banyarwanda”,
which means ”the people of Rwanda”, traditionally consists of
three ”population groups”: Bahutu, Batutsi, and Batwa, simplified
in the West as Hutu, Tutsi and Twa.
Traditionally all of them belong to 18 different clans, unrelated to
whether they are Hutu, Tutsi or Twa.
Banyarwandans have lived together for hundreds of years, but despite a
common language and shared religious traditions, there exist tiny
cultural differences that reflect historical rather than ethnic or
genetic divides.
In
Rwanda it is usually said that the Tutsis were nomadic cattle herders
from the Nile delta, who during the 15th century moved
southwest with their cattle. The explanations differ. A common version
has it that Tutsi clans settled between Lake Victoria to the east and
the Sea of Kivu to the west. They were militarily, economically and
culturally strong. The Hutus wandered southwards from the west of the
African continent at the beginning of the second millennium AD. They
established an agricultural base.
The
Twas are the aboriginals of Rwanda and traditionally have lived from
hunting and gathering. In more recent times they represent about one
per cent of the population. For some time, there was some mobility
between the groups. Every Rwandan would be called a Tutsi, provided
only that he owned more than a certain number of cattle. A poor Tutsi
could fall back into the position of a small peasant and be called
Hutu. Due to mixed marriages it is sometimes difficult to see the
difference between a Hutu and a Tutsi. In Rwanda, people born from
mixed marriages were often called “Hutsi”, and several cases are
known where Hutus were killed during the genocide because they looked
like Tutsis, or where Tutsis survived because they looked like Hutus.
The
early history of Rwanda is hard to document because there are no
written sources. All history has been passed on through a rich oral
tradition at the royal court. From the year 1506 Rwanda was a kingdom
and the king, or Mwami, was a Tutsi.
At
the Berlin Conference in 1885, Rwanda-Urundi was given to Germany as a
part of German East Africa. For tactical reasons, the Germans chose to
govern through the existing administrative structures. In 1916, during
World War I, Belgium invaded Rwanda-Urundi and formally took over the
administration of the country trough a mandate from the League of
Nations in 1923.
The
social divide between the Hutu majority and the Tutsi minority was
strengthened during the period of Belgian colonialism. The
colonial power brought in the concept of two races and ethnic
population groups. Every person was registered according to his
ethnicity. The Belgians governed the country through the Tutsis who
represented the social elite. But following claims for independence
from the Tutsis at the end of the 50s, the Belgians turned and
supported Hutu rebels against the Tutsis.
The Hutu rebellion of 1959 led to thousands of Tutsis being killed and
forced hundreds of thousands to flee, the greater part to the
neighbouring country Uganda. Some call this “the Hutu Revolution”,
while others think this was when the genocide against the Tutsis
started. In certain periods between 1959 and 1994 Tutsis were
systematically discriminated against, and several massacres and
expulsions of Tutsis took place.
In
the 1960 elections the Hutu party PARMEHUTU
(Parti du Mouvement de I’Émanipation) won an unexpected victory, and shortly after which the King was removed
from power. Rwanda was proclaimed a Republic on 28 January 1961.
Rwanda
won its independence in 1962, and Grégoire Kayibanda (one
of the founders of PARMEHUTU) headed its first government. He lost power in 1973 when general Juvénal
Habyarimana proclaimed himself president following a military coup.
Habyarimana
governed the country for 21 years to his death in 1994. He
concentrated on building a tough dictatorship, based on a one-party
system. Habyarimana himself led the only permitted party, i.e. The
National Revolutionary Movement for Development (MRND). Party
membership was obligatory for all citizens of the country from birth.
International pressure led to Habyarimana’s opening up for a
multi-party system in 1990, which resulted in the establishment of
several opposition parties.
In
the same year, the Rwandan Patriotic Front, RPF,
launched attacks on the regime and civil war broke out. The
organization had with increasing strength claimed the right of return
to Rwanda for Tutsi refugees. The Ugandan rebel leader Yoweri Musevini
had trained many young Rwandan refugees, who helped him take power in
Kampala in 1986. In this way, the RPF developed an army ready for
battle, which was probably stronger than the army of the regime in
Kigali. The quick advance of the RPF in 1990 was halted due to the
French intervention and support for Habyarimana’s regime.
Following
several failed attempts to secure a cease-fire, an attempt to end the
civil war was made through the Arusha agreement of 4 August 1993
between the government of Rwanda and RPF. According to the agreement,
an interim government consisting of members of the President’s
party, the opposition parties and RPF should be established within 37
days and stay in power until free elections were to be held at the end
of 1995. Parts of RPF should be incorporated into the regular army of
Rwanda.
The Tutsi refugees should be allowed to return home. The agreement
foresaw the presence of a neutral international force of 2 500 men,
who were to observe the implementation of the agreement. However, the
agreement was never implemented, probably because extreme powers
within the regime in Kigali disliked the idea of sharing power.
Instead of implementing the Arusha agreement, the regime worked at
full force on preparations for “the final solution”
of the conflict with the Tutsis.
On
6 April 1994, “unknown perpetrators” shot down the plane carrying
President Juvénal Habyarimana. This episode was used as an excuse for
starting the killing of Tutsis and moderate Hutus. The mass murders
lasted for three months, until RPF established control over the entire
country and put the genocide-regime to flight. Approximately one
million people were killed and tens of thousands of women were raped
during the genocide. Most of them were slaughtered with machetes and
clubs in their homes, on the street, in churches and in work places.
Death lists were being used, and many neighbours took part in the
killing. The genocide was planned and organized by the government
party, the army (the Rwandan Armed Forces - FAR) and the militia
Interhamwe,
together with mayors and leaders of sectors and cells. The purpose was
to exterminate the Tutsis and opponents of the government among the
Hutus. But the genocide regime also received help from several church
leaders, intellectuals and the media, while at the same time the
international community acted passively and did too little to stop the
madness.
It
is agreed that the media must bear a heavy responsibility in relation
to the genocide. One of the most central and infamous participants was
the radio station RLTM (Radio Télévision Libre des Mille Collines).
This radio station told all “true Rwandans” to murder the Tutsis
of the country. The station, which was established in 1993 by members
of the Akazu clan, called the Tutsis “inyensi”, cockroaches, which
were to be killed, and played Hutu-nationalistic pop music. “Make
sure the cockroaches don’t get through”, “the graves are only
half full, who are going to fill them?” the radio station asked its
listeners in spring 1994.
The
media’s role in the genocide is having a legal aftermath both in
Rwanda and at the Arusha Tribunal. The case against one of the
founders of RTLM, the former state secretary Jean Bosco Barayagwiza,
the assisting director of the station, Ferdinand Nahimana, and Hassan
Ngeze, editor-in-chief of the propagandistic hate-newspaper Kangura
started in Arusha on 11 April 2002. One of the most well known voices
of the RTLM was Valerie Bemeriki. Today she is in jail in Kigali and
rejects all accusations of complicity in the genocide: “We had to
use the radio station to protect our people.”
The Role of the Church
The
religious community of Rwanda does not escape responsibility for the
genocide – this is particularly true when it comes to the dominating
Catholic Church. In certain cases, priests did try to protect Tutsi
civilians, but all in all, the Church has deceived the Tutsis, and in
many cases it also has participated in the genocide.
How was this possible? Reverend Eustache Amani Karangua thinks that
the participating priests were not “real” Christians.
Quite
a lot of people accepted Christianity to achieve advantages, not
because they had actually turned to Christianity. You had to be a
Catholic to get an education or a good job. Christian faith opened
doors. In a poor country it is easy to manipulate people the way the
Church wants to. In this way one became a Catholic – a living of
lies.
Several
priests have been arrested and charged with participating in the
genocide. Two nuns (Gertrude Mukangango and Kisito Mukabutera) have
been sentenced for genocide by a Belgian court on 8 June 2001.
A suspected priest was under protection of the Vatican, but after
heavy pressure that he would be evicted he later surrendered
“voluntarily” to the Arusha Tribunal.
There
are no simple explanations to this complex question. Many factors have
made the genocide possible, and this is in itself worth a study. Now
we know a lot about what really happened, thanks to human rights
reports from the organisations Africa Rights, “Rwanda: Death and
Despair”
and Human Rights Watch’ “Leave none to tell the story”
(published in 1999), with a number of empirical facts. The Arusha
Tribunal has also contributed with many facts through its rulings.
There are fewer theoretical analyses on a macro level. Peter Uvin in
his article “Reading the Rwandan Genocide” explores three popular
paradigms that try to explain the genocide:
1.
Elite manipulation
2.
Scarcity of ecological resources
3.
Socio-psychological features of the perpetrators.
They
focus respectively on political leaders and macro level political
trends, on macro level ecological and demographic trends, and on macro
level socio-cultural features of Rwandan society.
1.
Elite Manipulation
The
most common explanation in Rwanda is the desire of Rwanda’s elite to
stay in power. The birth of political opposition, RPF invasion in 1990
and subsequent civil war, and international pressure for power sharing
and democratisation are among the factors that threatened the power
and the privileges of Rwanda’s elite. This elite consisting of
powerful people around president Habyarimana (the so called Akazu-clan),
as well as other cronies in the administration and the army – used
all means at its disposal, including racism and violence, to fend off
threats to its survival and privileges.
2.
Ecological Resource Scarcity
Rwanda’s
scarcity of ecological resources – with the highest population
density in Africa for an almost entirely rural country, coupled with
one of Africa’s highest population growth rates – constitutes the
root cause of the genocide.
3.
Socio-Psychological Features of the Perpetrators
Another
set of explanations refers to socio-psychological and cultural
dynamics. The most commonly heard argument is that the
“unquestioning”, “obedient” or “conformist” nature of the
Rwandan “traditional” mentality made Rwandans especially inclined
to follow orders from above, including orders to slaughter their
neighbours.
The famous Rwandan anthropologist Philibert Kagabo sees the genocide
as politically, not ethnically founded, because Rwandans are one
people.
Rwanda's
tragedy was the world's tragedy. All of us who cared about Rwanda, all
of us who witnessed its suffering, fervently wish that we could have
prevented the genocide. Looking back now, we see the signs, which then
were not recognised. Now we know that what we did was not nearly
enough--not enough to save Rwanda from itself, not enough to honour
the ideals for which the United Nations exists. We will not deny that,
in their greatest hour of need, the world failed the people of Rwanda.
(Kofi
Annan, Kigali, 7 May 1998.)
The
international community was not able to prevent genocide and crimes
against the people of Rwanda, but later showed the will to prosecute
those responsible. The Rwandan regime together with its supporters
must bear the main responsibility for the 1994 Rwandan genocide, but
the international community must take some of the blame for not
interfering in accordance with the Genocide Convention.
Both the UN and the countries that may have had influence over what
happened, carry a great responsibility for letting the genocide happen
before their eyes. This especially concerns France, Belgium and, not
least, the USA.
The
genocide regime with its militia managed unhindered to carry out their
genocide plans although the UN already had an international peace
force in Rwanda – United Nations Assistance Mission for Rwanda (UNAMIR)
– which was placed there in accordance with Security Council
resolution 872 of October 1993 with the aim of helping the parties
implement the Arusha Accords.
The
UN has later admitted its mistakes in connection with the 1994
genocide in Rwanda. A UN investigating committee was established in
April 1999, five years after the genocide. The commission, headed by
former Swedish prime minister Ingvar Carlsson,
concluded in its report on December 15th 1999 that the UN had betrayed
the genocide victims in Rwanda and therefore had to apologise to the
survivors: “This (UN) failure has left deep wounds within Rwandan
society (...) these are wounds which need to be healed, for the sake
of the people of Rwanda and for the sake of the United Nations”.
The
investigation concludes that the main mistake of the international
community was the lack of resources and political will, including
misjudging the extent of the events in Rwanda. Another unfortunate
circumstance mentioned in the report is that perpetrators of genocide
in Kigali were members of the Security Council and took part in the
discussion on the actions towards Rwanda.
In
addition to the UN, Belgium and France have also started
investigations to map their own part and responsibilities in
connection with the genocide. The USA has not done that, but the
American president at the time, Bill Clinton, apologised to the
surviving Rwandans for USA's failure to take action to prevent the
genocide. Belgium has done the same thing. A responsibility rests on
Belgium for having pulled out its own forces and having led a total
withdrawal of the UN forces when Rwanda needed international
intervention most.
In
the USA an intervention was not even seriously debated. The killing of
Belgian soldiers reminded the Americans of the fiasco in Somalia and
intervention became a non-subject – in resemblance to an eventual
participation in a UN-operation.
France
also carries responsibility having militarily and politically
supported the genocide regime in Kigali for a long time and for not
having put enough pressure on the regime to stop the genocide – even
when the French knew, with their contacts and intelligence
information, what might happen to Tutsis and government opponents
among the Hutus.
A
French parliamentary commission closed in December 1998 a nine-month
investigation on France's part before and during the genocide in
Rwanda.
The commission concluded that the main responsibility lies with “the
international community”, especially the UN and the USA. Even if it
was noted that France made some errors of judgement, the French
government takes no responsibility for the genocide in Rwanda.
The
UN's mistakes in Rwanda have left deep marks in the world organisation.
In a statement of December 16th 1999, the UN Secretary General Kofi
Annan welcomed the recommendations of the UN investigation report on
how the UN can prevent a repetition of “Rwanda” in the future.
When
RPF brought the genocide to a halt during summer 1994, most of the
social structure was reduced to a state of ruin. Practically
everything had to be rebuilt from scratch. Public offices were
abandoned, stripped of equipment and documents. The situation was
chaotic. A great number of public servants had been killed. A lot of
the people, who worked for the old regime, were urged to come back to
work. It was necessary in order to get the country back on tracks.
The genocide left 500,000 orphans and 400,000 widows.
The
situation in Rwanda right after the genocide was characterised by
trauma, need and chaos. The RPF leadership and Paul Kagame’s closest
associates declared that reconciliation was of the highest priority.
It was stressed as a first step that the RPF leadership would not take
a leading position, excluding other parties, when they vanquished the
Hutu regime in 1994. With the Arusha Agreement as a starting point,
the RPF, together with other political parties, formed a coalition
government – The Government of National Unity – with the Hutu
Pasteur Bizimungu as President. In spring 2002, eight political
parties were represented in Parliament with a total of 74
representatives. Only 13 of these were from RPF. The government
consists of six parties. Dr Charles Murigande, secretary general of
RPF said: “Everybody
expected that we would establish a regime by ourselves. We refused to
fall into that trap. We wish to unite the country.”
The
National Unity and Reconciliation Commission (URC), which was
established by the Parliamentary Law in 1999, plays an important role in building national unity. The
Commission’s role in the process of creating a Rwanda for everybody
is to create a well-functioning education system, to fight poverty and
to develop a common identity without differences. “Rwanda has learnt
its lesson. From now on everybody is a Rwandan, nothing more, nothing
less”, says Patrick Mazihmaka, President Paul Kagame’s personal
adviser.
In
order to create unity a new set of symbols have been made, an example
is the new flag, the new national anthem
and the annual "Heroes Day" which sheds light on the
national heroes.
On
6 and 7 March 2001 more than four million Rwandans took
part in the first local elections for 37 years. The Rwandan National
Commission (NEC) reported that more than 90% of registered voters took
part in the elections in which 112 district councils were elected.
No
political parties contested the elections, and the voters could cross
out candidates; hence self-appointed former leaders were not
automatically elected. There were three lists of candidates, one with
youths, one with women and one with mayor candidates. Hence, youths
and women were elected to the local councils on a quota basis.
Although
several political parties exist, the law forbids political
campaigning. The process of drafting a new constitution is ongoing.
The Constitutional Commission was elected by the National Assembly and
is regularly consulting with the population about different issues
concerning the Constitution. The people will take their stand on the
final draft of the new Constitution in a referendum in 2003. It has
been announced that the same year an election for a new national
assembly will be held and also a presidential election. Tito
Rutaremara, leader of the Constitutional Commission, says that the new
Constitution is one of the aims to reach unity and reconciliation.
“What we want is a democracy that does not promote conflicts. But
our country is poor and this is a difficult and time-consuming
process.”
Even
if the human rights situation in Rwanda has drastically improved for
the last years, the country is still facing severe challenges. Ruben
Niybizi, secretary of the human rights organization LIPRODHOR, claims
that freedom of speech is the civil-political right facing the biggest
challenge. Intellectuals may criticize current events, but, according
to Niybizi, individuals neither have the opportunity nor dare to
express themselves, because people are still frightened after the
genocide.
Representatives
of FACT, a youth organization working against torture, confirm this.
They also say that torture happens in Rwandan prisons, even though it
is not widespread. FACT urges the authorities to ratify the Torture
Convention.
There
are several human rights groups and NGOs in Rwanda today, among these
an organization working for the rights of widows. In addition, the
Parliament has established a Human Rights Commission that monitors
human rights. Even though the Commission is governmental, its reports
contain amounts of criticism of the authorities. In addition to the
freedom of speech, major problems include public security, prison
conditions, mistreatment and political killings.
The
educational system has gone through extensive reforms, and weighs
heavily in the reconciliation process. The primary school is now
obligatory and free for everybody. Racist elements in schools have
been removed to promote national unity. New history books are being
written, but there is a considerable amount of tension attached to the
problem of establishing a common history that everybody can agree
upon.
The authorities have declared that the children are not supposed to
learn the history of the conquerors.
A
doubling of the population is expected in the next 20 years, to an
estimated 16 million people. Considering the rapid growth of the
population, the efforts towards building a proper educational system
seem especially important. Good schools are important to fight
poverty, but the country needs international help to be able to handle
this challenge.
The
tragic past is still present in Rwanda, but conspicuously toned down.
Everybody has relatives that were either killed or who joined the mob.
According to the Rector at the University of Butare, Dr. Emile
Rwamasirabo it is naive to believe that the hatred is gone as if by
magic after the genocide, and points out that all students must attend
a six week course on reconciliation before starting their studies.
One
of the greatest challenges faced by the new authorities after the 1994
genocide was to stabilise the situation. One of the most urgent
questions was how to deal with the perpetrators of genocide. The
police force and the judicial system were completely put out of action
during the genocide. Investigators, police lawyers, defenders and
judges were eliminated or fled, and only a few stayed behind. About
130.000 suspects were imprisoned, a lot of them without being charged.
The intent was criminal prosecution, but the massive arrests
were also meant to prevent new assaults and to quench the thirst of
revenge. The situation became critical. Overcrowded prisons led to the
neglect of the most vital human rights, even the right to life. An
unknown number of people died, most likely from torture, diseases or
lack of food.
But the absence of a proper legal system made the needed prosecutions
difficult.
Rwanda
is divided into 12 counties, further divided into municipalities. A
report written by The Norwegian People’s Aid describes the court
system as follows:
Tribunal
de Canton: In every
municipality. A stipendiary magistrate judges the civil cases and
smaller cases without prosecutor and defender.
Tribunals
de première Instanse: Judicial authority on
the county level. After the genocide it took several years to restore
all these tribunals. Judges in civil cases which appeals from court of
the first instance and in larger criminal cases. Prosecutor, but not
defender in every case.
Cour
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