WOMENAID INTERNATIONAL

 RWANDA: CRIMES AGAINST HUMANITY

The Republic of Rwanda is one of Africa's smallest countries in east-central Africa.  However, although it is a small country it is rich in resources and economic potential.  Yet, for decades it has remained in a densely populated nation of poverty, victimised by bad government and furious tribal hatreds. 

The population consists of three main tribes: the majority, 84%, are Hutu, the Tutsi make up almost 14%, and other groups the remaining 2%.  While the Hutu and Tutsi have similarities and a common history, they have been rivals for many years.  Before colonisation by Belgium, the Tutsis had economic domination despite being a minority, and for over 500 years they had remained politically dominant, oppressing the land-owning Hutu majority.  The ethnic identity of the Rwandese is traditionally determined on a patrilineal basis, taking sole account of the father's ethnicity.  Thus, in a mixed marriage where the father is Tutsi, the children will be considered Tutsis regardless of the ethnicity of their mother.  In Rwanda, every individual's ethnic identity is clearly indicated on his or her identity card. 

THE 1959 UPRISING

In 1959, Tutsi domination was ended when a violent revolt resulted in a reversal of the roles and the Hutu majority came to power.  Tens of thousands of Tutsis fled Rwanda and entered Uganda as refugees.  Since then, conflict has plagued the Republic and ethnic distinctions remained strong in the mind of the Rwandese people.  It is suggested that this that this was not only fuelled by feelings of anger and frustration among the Hutu at how they were treated in the past, but also because of evidence of ethnic propagandists asserting its importance, and thereby manipulating Hutu feelings of ethnic inferiority.  Such propaganda succeeded in persuading many people to become involved in the massacres which arose in 1994. 

DEATH OF THE PRESIDENT

A peace accord to end the conflict, the Arusha Peace Agreement, was signed on August 14th 1993.  Less than a year later in 1994, the peace process ended with the sudden death of President Habyarimana on April 6th 1994 when his plane was shot down as it landed in Kigali.  Within one hour, many roadblocks had been assembled and a violent, bloody war ignited.  The evidence would suggest that the serious human rights violations which followed, were part of a pre-planned agenda of the ethnic majority, the Hutus. 

The massacres which occurred were systematic and particularly horrific.  Tutsis were attacked and killed with machetes, axes, cudgels and iron bars.  The victims were hunted down even in their final refuge - orphanages, hospitals, churches.  No one was spared.  Not even babies.  The exact number of killings in 1994 may never be known, but hundreds of thousands died. 

THE ATROCITIES THAT OCCURRED 

The massacres which swept over Rwanda in 1990's were not a surprise to the nation.  Conflicts have sporadically occurred in 1912, 1959, throughout the 1960s, 1973 and 1990 - all setting a pattern for the 1994 eruption. However, that year saw unprecedented violence, severe human rights violations, systematic, widespread and flagrant breaches of international humanitarian law and genocide. 

SYSTEMATIC & WILLFUL KILLINGS 

Just two days after the death of the President, a campaign of mass murder of Tutsis was put into action, carried out primarily by the Hutus.  Eyewitness accounts indicate that house to house searches were conducted in Kigali by the Presidential Guard, Rwandanese Army troops and interahamwe militia (Hutu extremists).  Tutsi civilians were hunted down and killed.  Churches were surrounded by soldiers who prevented Tutsis from leaving.  Within one week, the Presidential Guard and militia had killed an estimated 20,000 people in Kigali.  Corpses filled the streets of Ngenda, Butare, Kibungo, Kibeho and other towns. 

The systematic and calculated nature of these mass executions becomes evident from the planned and methodical way in which people were incited to murder, and the way in which large groups of the same ethnicity were brutally hunted down and slaughtered.  In addition to race hate propaganda disseminated by the Radio des Milles Collines, posters and leaflets were distributed which dehumanised Tutsis as 'snakes', 'cockroaches' and 'animals'. 

The holocaust that Rwanda suffered is shocking and incongruous with what we have come to call a civil world.  The following are just a few accounts of the extent to which executions were carried out :  In the town of Butare, on April 1994 it is reported that 600 persons most of whom were Tutsis, were killed in the commune of Mnugaza.  The perpetrators were from the Hutu militia.   

On 22-23 April, at the Butare University Hospital, 170 patients (wounded and sick) all Tutsis and 5 members of the medical staff, were kidnapped and then beaten to death or cut to pieces.  The perpetrators were interahamwe militia.  Another town, Kibuye, also saw the face of death everywhere.  Reportedly 15,000 Tutsis were grouped together at the Stadium of Gatwaro, and massacred by interhamwe militia on 18th April.  In Gikongoro, 88 students were singled out because of their Tutsi origin and murdered.  The 13 Rwandese Red Cross volunteers who tried to protect the children, were also murdered. 

Interestingly enough, a report published by African Rights indicates that women played a surprisingly active role in some of these executions.  'Women of every social category took part in the killings' inflicting cruelty and death on men, other women and children.  They also report that the extent to which women were involved in the murders is unprecedented anywhere in the world.  Some women killed with their hands, while others, such as female councillors in Kigali, led the militia to refugees in their hiding places, who then abducted them. Many nurses in the Butare's University Hospital gave the militia and soldiers lists of patients, colleagues and refugees to be killed. 

RAPE 

It has been reported that systematic and planned rape was the weapon of war and genocide used to humiliate and terrorise women and girls, their families and their communities. In 1994, almost every adolescent girl who survived the genocide in Rwanda was raped.  Due to the nature of the crime of rape, there are always difficulties in gathering accurate statistics as to the number of women who were victims.  Rape is an offence to which women and girls are uniquely vulnerable, and the effect may not be physically evident but certainly is psychologically and emotionally damaging.  Secrecy, reticence and shame cover up this tragedy.  Rwanda's population office has estimated war time pregnancies as between 2,000 to 5,000. 

Some women however, are risking their lives to speak out against their perpetrators.  At the first trial before the ICTR, some women gave evidence against Jean Paul Akayesu, the former mayor of Taba.  One 38 year old, a Tutsi who lived in Taba told the UN Tribunal that he was behind many of the atrocities in the district.  Hidden from view, she also testified that at a meeting Akayesu said that 'Whoever is hiding Tutsis must bring them out even a women who is married to a Tutsi and is pregnant must be found and her pregnancy ended.'  Another woman testified that she suffered multiple rapes at the hands of Hutu militants led by Akayesu.  He has pleaded not guilty to all the charges against him. 

GENOCIDE 

The Genocide Convention of 1948 (adopted 1951) affirms that genocide is a crime under international law.  Genocide means any of the acts laid out in Article 2 of the Convention, which are committed with intent to destroy whole or in part, a national, ethical, racial, or religious group.  These acts include killing members of the group.  The figures which represent the groups of Tutsis killed in the brutal massacres in 1994 undoubtedly qualify as evidence of genocide : 

In Cyahinda over 5,800 Tutsis who sought refuge in a church were murdered.  In Kigali thousands of Tutsis sought refuge in the Amahoro stadium, the Sainte Famillie church and other locations.  Militia entered at night on several occasions, removed hundreds and murdered them.  The genocidal murders of Tutsis continued under the control of the Rwandese 'provisional government'.  Estimates put the number murdered between April 6th and July 15th 1994 at half a million. 

The motivation behind the ferocity of the killings may be attributed to the long history of violence between Hutu and Tutsi, and the events of 1994 were just another example of ethnic killing, albeit extreme.  However, the evidence is overwhelming in support of the fact that it was incited far beyond its historical context, by propaganda. Public authorities have been reported to openly involve themselves in the perpetration of massacres of Tutsi through explicit orders.  An example of this is when the President of the interim government, Mr. Sindikubwabo, urged the population to 'get to work' in a speech at Butare, in the Rwandese sense of the term by using their machetes and axes. 

THE LAW 

It is evident from these reports that serious violations of human rights and international humanitarian law have occurred in Rwanda.  Before dealing with the law that is applicable to such circumstances it is important to consider two issues.   

  • Firstly, that the law that applies to internal conflict is different to that applied to international conflict.   

  • Secondly, that the individual rather than the State should be held responsible for the human rights violations which took place in Rwanda.   

With regard to the first issue, the Commission of Experts, in their preliminary report of 1994, has concluded that the conflict in Rwanda is in fact armed conflict of a non-international nature.  As a result, the law which applies includes  

(i) Common Article 3 of the Geneva Conventions of 1949  

(ii) The norms prohibiting crimes against humanity 

(iii) The Genocide Convention.   

This does not mean to say that because the conflict has taken place within the boarders of Rwanda, that the violence does not affect and concern the international community.  It merely classifies the nature of the conflict for the purposes of applying appropriate international law. 

As to the second issue, it is far more a priority to ensure that individual responsibility is recognised by international law, than state responsibility in circumstances of war crimes.  It is suggested that an effective way to deter human rights violations may be to expose individuals responsible to the risk of international legal sanction in a personal capacity.  This principle that individuals shall be held responsible for serious violations of human rights (universally recognised by the international community) is the same principle that guides the operation of the International Criminal Tribunal for the Former Yugoslavia. 

TRIALS IN RWANDA 

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA 
The International Criminal Tribunal for Rwanda (ICTR) was established on November 8th, 1994 by Resolution 955 of the Security Council under Chapter VII of the Charter of the United Nations.  It is located in Rwanda and it creates a binding obligation on all Member States to cooperate fully with the Tribunal. 

The purpose behind the Tribunal is to prosecute individuals who fall into one of two groups or both: they are either those persons responsible for genocide and other serious violations in international humanitarian law committed in the territory of Rwanda, and/or those Rwandan citizens who are responsible for genocide and other such violations committed in the territory of neighbouring states, between January 1st and December 31st 1994. 

The jurisdiction of the ICTR is laid down in the statute of the Tribunal under Articles 2-4 giving it the power to try persons committing genocide, crimes against humanity, violations to Article 3 common to the Geneva Conventions of 1949, and Additional Protocol II.  In accordance with the principle that individuals shall be held responsible for serious violations of human rights, the Tribunal also has jurisdiction over 'natural persons', additionally it has concurrent jurisdiction with national courts, but it has primacy over the national courts of all States (Article 8). 

The structure of the Tribunal is similar to that of the ICTFY, having three main organs -  

(i) the Chambers comprising two trial chambers and the Appeals Chamber  

(ii) the Prosecutor  

(iii) the Registry.   

In total, there are eleven independent judges no two of whom may be from the same state.  The President is elected by the judges.  Finally the rights of the accused are laid down by Article 20 including the right not to be tried in absentia.  Should the accused be found guilty, penalties are limited to imprisonment and/or an order to return property.  A sentence shall be served in Rwanda, or any state on a list of states which have indicated their willingness to accept convicted persons (Article 26). 

THE TRIBUMAL AT WORK 

The ICTR has been established to ensure that justice prevails over all forms of human right violations in war time conditions, especially where national courts are unable or unwilling to bring perpetrators to justice.  It has been described as the 'acid test' for UN member states as to whether or not a permanent International Criminal Tribunal is feasible. 

The first trial before the UN Tribunal in Arusha, Tanzania, commenced with Jean Paul Akayesu in the dock.  He was the former mayor of Taba and stands accused of genocide and several crimes against humanity, including rape (as mentioned above).  He has pleaded not guilty to all charges against him.  One of the judges hearing testimonies stated that 'Never before in history has such evidence emerged of sexual violence being used as a military strategy on such a large scale as in Rwanda.' 

Is the Tribunal Working? 

Despite the fact that the Tribunal has lists of alleged perpetrators and has started hearing trials, the ICTR is not without its problems.  A UN Inspector's report issued early in 1997 described misplacement of tribunal funds, gross mismanagement and a lack of commitment to the purpose of the tribunal.  It is experiencing similar problems to the Tribunal for the Former Yugoslavia, especially in the field of investigation and the failure to apprehend persons indicted of the crimes. 

These problems however, do not necessarily mean that the Tribunal is doomed to failure.,  It is experiencing some of the 'teething problems' which are inevitable in any new institution. The similar difficulties experienced by the Tribunal for the Former Yugoslavia indicate flaws which need to be addressed in tribunals of this nature, and it must be done swiftly.  Additionally these problems must be taken into consideration when establishing the permanent ICC.  If the international community is trying to make a statement globally that it does not tolerate behaviour which is an affront to the basic rights of humanity, then it must strengthen the institution through which it makes that statement.  It will only become the subject of distrust by citizens who are victims of atrocities and of ridicule to the perpetrators who will continue to evade justice. 

RWANDA'S NATIONAL COURTS 

During the turmoil and devastation that swept over Rwanda in 1994, not only was the physical structure of towns and villages destroyed, but so too was the judicial system and other institutions.  However, since then the Rwandanese government has commenced the very difficult process of gathering its pieces and setting the judicial system and other institutions functioning once again.  Efforts are clearly being made by the Rwandese government to bring to trial those suspected perpetrators of crimes of genocide and violations of other international humanitarian law.  The start of trials is a significant step towards justice and ending the culture of impunity.  However, the circumstances surrounding these trials have caused deep concern about the level of fairness which exists in the judicial system. 

Through observations of trials which have already taken place in Rwandese courts, Amnesty International has observed in its report, that two issues are of particular concern.  The first relates to the pace of arrests, and the second to the actual conduct of the trials.  With regard to the first issue, it has been reported that the manner in which arrests have been carried out in Rwanda is arbitrary.  This has led to almost 100,000 people being held in prisons across the country.  What is more, the consequent overcrowding of prisoners exists in conditions which amount to cruel, inhuman and degrading treatment, Amnesty reports.  It is feared that a significant proportion of these people are in fact innocent.

OVERVIEW 

This wave of arbitrary arrests is not entirely surprising, given the hostility and resentment which many of the surviving Tutsis must be festering.  However, the repercussions can be just as grave and disconcerting if innocent men are brought to trial, many of whom face the death penalty, when the real perpetrators and conspirators live in liberty.  This is especially disturbing as Rwandan law recognises the death penalty, - as may be found in the new law adopted in Rwanda called the Organic Law on the Organisation of Prosecutions for Offences Constituting the Crime of Genocide or Crimes Against Humanity Committed since 1st October 1990 (Organic Law No.8/96).  Article 2 of this law divides defendants into four categories, category 1 defendants get the death penalty. 

With regard to the second issue, it appears that the judicial system needs to be addressed.  Not only is there a shortage of personnel - the number of practising defence lawyers in Rwanda totalling 16 - but the judges who hear these trials are inadequately trained, some having received only up to six months training, others never having any prior legal training at all.  The result is that lawyers are being made to represent defendants with little or no time for preparation, trials being heard in record time and defendants being swiftly sent to the gallows.  This type of justice is questionable and disturbing. 

There is no doubt that the Rwandese government deserves credit for being anxious to redress the injustice that Rwandese people have suffered and repair the broken nation by declaring that it will not tolerate violations of human rights to any extent.  However, it seems that the judicial system needs some strengthening and readjustment.  A further imbalance is evident when the maximum sentencing in the ICTR is imprisonment while that of the Rwandese national courts is death.  This can mean that the more serious perpetrators and conspirators (if ever arrested) will be sentenced to jail in the ICYTR, whereas the 100,000 who are being held, perhaps wrongfully, will be executed.  Those in support of capital punishment would argue that the UN Tribunal should impose the death penalty, but many feel that not even life imprisonment should be an option. 

Paper prepared by Nalini Lalla, LLB

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