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Transitional Justice in Rwanda from the 1994 Genocide until Present Day

Belinda Merceron

30/11/2012

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In order to understand the great deal of importance that is involve in transitional justice

for the nation of Rwanda we must first understand how the Rwanda civil war begin. The

Republic of Rwanda is a sovereign state in central and east Africa, with neighboring nations such

as the Democratic Republic of the Congo, Uganda, Tanzania, and Burundi. The nation’s

population consisted of two major tribes; they are the Tutsi people and the Hutu people. It has

been documented that there were no physical differences between the Tutsi and the Hutu people.

Disputes stemmed from occupational differences rather than ethnic;”Agricultural people were

considered Hutu, while the cattle-owning elite were identified as Tutsi.” (Infoplease) The 1933

requirement by the Belgians that everyone carry an identity card indicating tribal ethnicity as

Tutsi or Hutu reinforced the distinction.

Since independence, from Belgian which was on January 20th 1959, repeated violence in

both Rwanda and Burundi increased ethnic differentiation between the groups. “The ethnic

tensions between the Hutu majority and the Tutsi minority had their roots in the Belgian colonial

era, where the ruling Belgian authorities empowered the Tutsi aristocracy, and cemented the

second class status of Hutus, in what had previously been a fairly fluid social system. Upon

leaving Rwanda, Belgian diplomats stirred the pot by reversing their favoritism, encouraging

nationalist Hutu uprisings in the name of democracy.” (Rwanda Genocide." Wikipedia, the Free

Encyclopedia. Wikimedia Foundation, Inc. 11. November. 2012. Web) “Episodes of violent

attacks and reprisals between Hutus and Tutsis flared up in the first two decades following

Rwanda's independence, building tensions and resentment that would explode in the civil war

and genocide of the 1990s.” (Gourevitch, 1998)

The ethnic tensions led to several civil wars, forcing many Tutsi into exile, which in turn

made the remaining few who continued to live in Rwanda outcasts. They also lost much of their

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powers. Hutu, in contrast, were the majority and came to power in the rebellion of the years of

1959 until 1962.”(Hinton & Babchuk 2010) Rwanda was ruled by the Hutu from July 1, 1962.

The 1990s began with a slew of nationwide issues for the struggling republic. Political pressure

from Francophone Africa became a new issue; neighboring African nations attempted to convert

Rwanda into a Democratic nation albeit ignoring the country’s slumping economy and food

shortages.

The nation’s president, from 1973 through the early 1990’s was Juvénal Habyarimana; he

was Rwanda’s 3rd president, considered by scholars as a “respectable being who would have been

able to fix that Republic if his life wasn’t cut short.”(Schabas 2010) All of these elements as a

whole created a dangerous political environment; to make matters worse exiled Tutsi from

decades ago were returning to Rwanda, as an organized anti-Hutu Power guerrilla group, known

as the Rwanda Patriot Front (RPF). The RPF followed the orders of Major-General Fred

Rwigyema, who was considered to have been a Tutsi. Uganda joined forces with the RPF in its

attempt to overturn the Hutu regime. “Hutu Power ideology, asserted that the Tutsi intended to

enslave the Hutu and must be resisted at all costs.”(Wikipedia, 11.17.2012)

Rebel forces failure to wait for the approval of governmental laws that would cease the

ethnic strife amid the Tutsi and Hutu people (Arusha Awards) resulted in continued violence;

The Arusha Awards were a “set of five accords (or protocols) signed in Arusha, Tanzania on

August 4, 1993, by the government of Rwanda and the rebel RPF, designed to, end a three-year

Rwandan Civil War. This protocol was believed to have been organized by the France, United

States, and the Organization of African Unity. The talks which began on July 12, 1992, and

lasted until June 24, 1993. Proposed rule of law, Broad Based Transitional Government (BBTG)

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repatriation of refugees both from fighting and from power sharing agreements, and the merging

of government and rebel armies.”(Jameson, 2006) The Arusha Award did not reach its full goal

of bringing peace and a stable Rwanda; it did however deter the internal disputes between the

Tutsi and Hutu. Two years of cease fire due to the Arusha Award would have been considered

the end of the civil war; it indeed was not. The RPF went on to invade north Rwanda and killed

dozens of Hutu, causing Hutu killings of Tutsi in the south. Following the assassination of

Rwandan president Juvénal Habyarimana and Burundian president Cyprien Ntaryamira in 1994,

all these politically fused dilemmas added up into one, one of the worst civil wars of the 20th

century.

The assassination of President Habyarimana resulted in the immediate national draft of

anti-Tutsi militias; one main militia was the Interahamwe, Hutu paramilitary under the authority

of Robert Kajuga [a fellow Tutsi], receiving support from prominent figures in the ruling party,

the National Republican Movement for Democracy and Development. The second key militia

was the “Impuzamugambi, Hutu militia under the command of leaders from the Coalition for the

Defense of the Republic.”(Totten 2011) Both rebel militias organization proceeded to set up

roadblocks across Rwanda and to slaughter every Tutsi or Hutu sympathizer they came across.

“This genocide had been planned by members of the Hutu power group known as the Akazu

(Hutu extremist), many of whom occupied top level positions in the Rwandan government.”

(Rwanda Genocide." Wikipedia, the Free Encyclopedia. Wikimedia Foundation, Inc. 11.

November. 2012. Web) The mass killings and tortures of both Hutu and Tutsi persons lasted

roughly 100 days from April 6, 1994 until the middle of July of the same year, where it has been

estimated that between 800,000-1,000,000 people (civilians, children, and soldiers) were

murdered. The “Interahamwe, systematically set out to murder all the Tutsi they could reach,

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regardless of age or sex, alongside political moderates among the Hutu.”(Peace Pledge Union,

2011)

The Rwanda genocide crimes against humanities consisted of: killings of protected

persons (children, civilians), torture (burning), murder, enslavement, cleansing, extermination

and imprisonment. A prime example of this violence can be seen in the act of the

Rassemblement Démocratique pour le Rwanda (Reassemble for Rwanda), composed of Hutu

troops and militia members. “They militarized the camps, by means of turning them into bases to

overthrow the new RPF-dominated government.” (Schenkman Books, 1998) “The Tutsi rebels

defeated the Hutu regime and ended the genocide in July 1994, but approximately two million

Hutu refugees - some who participated in the genocide and feared Tutsi retaliation - fled to

neighboring nations such as: Tanzania, Uganda, Burundi and Zaire.” (Rwanda Genocide."

Wikipedia, the Free Encyclopedia. Wikimedia Foundation, Inc.08. November. 2012. Web) The

international community responded with one of the largest humanitarian relief efforts ever

mounted. They feared and dreaded genocide at the magnitude of the Holocaust. The International

Criminal Tribunal for Rwanda (ICTR) was formed in November of 1994. The ICTR, an ad hoc

of the International Criminal Tribunal for the former Yugoslavia (ICTY), was established by the

United Nations Security Council in resolution 955; The International Criminal Tribunal for

Rwanda was created for the “prosecution of persons responsible for genocide and other serious

violations of international humanitarian law committed in the territory of Rwanda between 1

January 1994 and 31 December 1994, along with the purpose of this measure is to contribute to

the process of national reconciliation in Rwanda and to the maintenance of peace in the region.”

("General information about," 2012)

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Following its establishment one believe that justice is being served to Rwanda’s survivors. An

example is the ICTR prosecution of Athanase Seromba in 2002 for his involvement in Rwanda’s

genocide, Seromba, who was a local priest, surrendered himself to the ICTR for his crimes

against humanity as a result of demolition his church while people were in hiding and were

ordered the survivors to be shot. Other offences that were brought against him by the court were

crimes of genocide, complicity in genocide, conspiracy to commit genocide and extermination as

a crime against humanity Seromba was found guilty of all the charges brought to him, and was

sentenced. “His trial began on September 20, 2004 before the Third Trial Chamber of the ICTR.

On 13 December 2006, he was found guilty and sentenced to 15 years in prison. Seromba and

the Prosecution challenged the verdict. On 12 March 2008, the Appeals Chamber of the

International Criminal Tribunal for Rwanda (ICTR) decided his responsibility was even greater

than previously found, affirmed his conviction, and increased his sentence to a life sentence.”

(Rwandan priest guilty of genocide". BBC News Online. 13 December 2006).

Another motivating case is the ICTR prosecution of Omar Serushago. Mr.Serushago was

charged with Genocide and Crimes against Humanity “offences stipulated in Articles 2 and 3 of

the Statute of the tribunal” (UN ICTR, 2012). Mr. Serushago was believed to have been one of

the five leaders of the youth wing Interhamwe rebel group who were Hutu extremists. Mr.

Serushago exercised authority and control over groups of militiamen, from late 1990 until 1994,

participated in organized massacres against Tutsi population and sympathizers Hutu as a means

of extermination in order to remain in power. Serushago’s group of militiamen committed

abductions, on site killings, crimes of aggression of protected persons, and systematic killings of

refugees without questioning them. “The majority of the victims were killed solely because they

appeared to be Tutsi, or considered Tutsi accomplices.” ("Serushago ICTR case," 2012) The

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court found him guilty because he cooperated with other Interhamwe leaders whose objectives

were for the execution of a common scheme, organizing to commit atrocities. The prosecution

also stated that Mr. Serushago personally committed those crimes, and he assisted. Mr.

Serushago was found guilty on four counts of Crimes against Humanity and one count of

Genocide. There are several cases involving serious violations of international human rights laws

such as that of Augustna Ngirabatware that are currently being processed at the ICTR, for counts

of Conspiracy to commit genocide, genocide, complicity in genocide, direct and public

incitement to commit genocide, extermination as a crime against humanity and rape as a crime

against humanity.

Is the ICTR the remedy for Rwanda Genocide survivors? Yes, I consent that the formation of

the ICTR is a huge step forward for not only the nation of Rwanda but also for the international

community’s prevention of modern day genocide and sanctions for those who commit illegal

offenses against humanity.

This quote by Robertson explains it all when he states “diplomats fear that an

international criminal court, once established, would be a power in the world, prone to upset the

bargains they make with unjust regimes. The international criminal court is slowly succeeding in

teaching them to live with the idea that justice, in respect of crimes against humanity, is non-

negotiable.” (Robertson, 2007) Seromba’s sentencing is just one of thousands of war crime cases

that have been brought to the ICTR; I found it hard to believe that Rwanda was originally

opposed to establishing the tribunal criminal court as one of the primary mechanisms to provide

restorative justice for genocide survivors and suspects. Nation establishing international courts

have to face a great deal of guidelines and restrictions such as: lack of funding in order to operate

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the international tribunal, limited archives to base the cases on, hardship in finding accountable

and experienced judges, prosecutors or national law enforcement agents to regulate the courts

proceedings.

Originally the government of Rwanda believed “that politically motivated pursuit of members of

the RPA by the ICTR is not conducive to stability and national reconciliation in Rwanda.”

(Waldorf, 2010) There were various agendas on the table. “The Rwandans wanted help in putting

their own judicial infrastructure back in place so they could begin trying persons accused of

genocide. Shattuck wanted Rwanda's formal request designed as an international criminal court

and its solemn assurance that the court would have preeminent jurisdiction over the major

offenders.”(Rawson, 2007) Arrival court that considers some of these violations is the

International Criminal Court (ICC). The ICC is a hybrid court which is a permanent tribunal to

prosecute individuals for genocide, crimes against humanity, war crimes. It was established in

January 2002, this court is located in Hague, Netherlands. What is the ICC stance in dealings

with Rwanda genocide? Questions such as: which of the two courts is more efficient? Which is

more expensive to operate the ICC or the ICTR?

Larry Waldorf the chief of the international law department at Fordham argues that the political

strife between the ICC and the ITCR is merely based on politics. In other words, the ICC has the

funding for its operation along with practically universal jurisdiction which is completely

different from the statutes of its less powerful predecessor ICTR, which is restricted by time and

geographical location. I accept as true the opposite argument that “the ICC is not considered a

“foreign” court, but is instead an independent judicial body composed of legal experts and

governed by chosen procedures from Member States (Crafting the International Criminal Court:

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Trials and Tribulations, 2001) The ICC’s principal of complementarity, provides national courts

alongside international courts’ jurisdiction at prosecuting genocide, crimes against humanity and

war crimes. Though some human rights activist and humanitarians such as Alison Des Forges

disapprove of the ICC, she states that the ICTR is more effective, as compared to the ICC who

provides “mere pretense of justice” (Waldorf, 2010) for the victims. The ICC was more

deferential to state sovereignty, it promotes the diffusion of international norms at the national

level, and it is much less expensive.

“First, they suggest that international tribunals will be unable or reluctant to recognize

sham national proceedings, designed to shield the accused. Second, they make clear that

state cooperation is the Achilles' heel of international justice. Finally, they remind us that

international justice is inherently political.” (Waldorf, 2010)

One is in favor of both courts; they both prosecute war crime offenders and provide the

survivors with varying amounts of reassurance and justice. It appears as though the ICC is better

suited to these activities. Both courts’ mission though their jurisdiction correlate, share similar

elements albeit attempting to provide justice on the international scale.

I will now touch upon some of the prosecution that involved the ICTR in reference to the

Rwandan genocide while emphasizing the severity of the courts’ sanctions. The following

persons are alleged key figures who were involved in conspiracy, crimes against humanity, who

organized and commanded their rebel to commit those offenses. The leaders who were

prosecuted were Prime Minister Jean Kambanda (Interahamwe leader), Georges Rutaganda

(Interahamwe leaders), Jean-Marie Vianney Mudahinyuka (Azuku leader), Hassan Ngeze

(leaders of CDR) and Jean Bosco Barayagwiza (Co-Leader of CDR). The tribunal (ICTR) has

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convicted at least “41 persons, often with life sentences,” (Prunier, 2009) including former

interim Prime Minister Jean Kambanda and Georges Rutaganda.

Rwanda also has several domestic courts which offer other legal means to provide reconciliation

for victims who do not have the resources to bring suit to the ICC or ICTR. An example of this

hypothesis is Rwanda’s membership in the African Charter. Rwanda is one of the 15 ratified

members of the African Court on Human Rights and Peoples’ Rights (AFRCHPR); this is a

regional court which seeks judgments of member nation’s compliance with respect to the

Protocol of the African Charter. The AFRCHPR was established on January 25, 2004. The court

functions to: “Collect documents and undertake studies and researches on human and peoples’

rights matters in Africa; Lay down rules aimed at solving the legal problems relating to human

and peoples’ rights; Ensure protection of human and peoples’ rights; and Interpret all the

provisions of the Charter.” ("African court," 2012) The regional courts does not address cases

that are followed in the ICTR and ICC, it does however prosecute less serious offenses such as

employment violations, and discrimination would be allowed to proceed this court. Cases can

only be brought within the jurisdiction of the continent of Africa, with relations to the ratified

members.

Another court Rwanda operates to maintain peace and regulation of crimes against humanity are

the Gacaca courts, which originated for the purpose to “building or (re-) establishing the unity of

Rwanda together with eradicating the ‘genocide ideology’ [and] was a home grown tradition

derived from the Rwandan socio-cultural fabric needing to replace imported, divisive practices.”

(Ingelaere, 2008) Gacaca courts were established in 2001, they are community based justice

institutions that follows Rwandan tradition structure, traditional cultural communal law and

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enforcements procedures. They were created by the new Rwandan Patriotic Front after the 1994

genocide, in order to prosecute and sanction people who have been accused of involvement in

specified crimes against humanity. For example rape is not defined as a crime against humanity

under the Gacaca statute. Gacaca courts functions as a quicker, cheaper alternative to criminal

prosecution and sanctioning of war crime suspects in the ICTR or ICC. Prosecution would in

turn provide a greater deal of comfort for the victims and their families, and enable them to live

their lives more easily post genocide. The Gacaca court objective state’s: “The reconstruction of

what happened during the genocide; the speeding up of the legal proceedings by using as many

courts as possible; the reconciliation of all Rwandans and building their unity.” (Peacebuilder,

2009) Though this court may seem like a home based peaceful alternative to the bigger courts

that have been established with the sole purpose of prosecuting war crime offenders, Gacaca

courts have sustained large setbacks as a result of limited funding and resources. For example

“from December 1996 to December 2006, the courts managed to try about 10,000 suspects”

(Human Rights Watch 2004, 18), thousands of arrested alleged genocidaires were released by

Rwandan prisons before seeking legislative prosecution. It has been reported that Rwanda

Superior court has established a department specifically for the Gacaca areas of competence in

order to provide supervision, power, and more structure. Following the establishment of the

Gacaca courts, the International Community made more efforts provide Rwanda with a stable

government, peace, accountability, and power to prosecute its citizens, all of which are essential

in a nation’s reinforcing its autonomy. Over 8 thousand Gacaca Courts have been established

since 2001.

The courts mentioned above (AFCHPR, Gacaca) an alternative to the larger courts such as the

ICC and ICTR in various matters such as: their location, power, resources, prosecution rates, etc.

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Another court mechanism that could possibly combine both the quickness of the proceedings of

Gacaca courts and the efficiency and the large archives of the ICC and the ICTR are hybrid

courts. Their main objective is to strengthen national capacities for the hearing of human rights

violations by means of the transfer of international legal skills and expertise to nations that

benefit from them. An example of the power and effectiveness of hybrid courts in providing

justice for human rights victims and survivors is the Special Court of Sierra Leone (SCSL). The

SCSL was set up by the government of Sierra Leone alongside the United Nations on June 12,

2000 in Sierra Leone in order to implicate resolution 1315. The SCSL’s purpose is to "prosecute

persons who bear the greatest responsibility for serious violations of international humanitarian

law and Sierra Leonean law." (Special court of Sierra Leone. SCSL, SCSL Inc. RTRVD on 16-

11-2012. Web) The SCSL has the jurisdiction to maintain peace and act against persons who

violate both the Geneva Convention of 1949, and Sierra Leone's own treaties. "All sentences

should be carried out within Sierra Leone, unless there was no capacity to deal with the accused,

at which point any states pursuant to the ICTR or the ICTY who can hold the prisoner." (Statute

of the Special Court for Sierra Leone". RTRVD 17-11-2012)

Smaller national courts provide great forms of reconciliation for victims of the Rwanda

genocide if they receive adequate international support. In conclusion, courts domestic and

international aim at attempting to provide the same amount of transitional justice for victims and

survivors.

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