1
Prosecuting Genocide in RwandaProsecuting Genocide in Rwanda
The Gacaca System and the InternationalThe Gacaca System and the International
Criminal Tribunal for RwandaCriminal Tribunal for Rwanda
The Norwegian Helsinki Committee Report II/2002
2
PrefacePreface
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. The report is
published in the Norwegian Helsinki
Committee's series of reports dealing with
human rights. For further information, please
contact the secretariat of the Norwegian
Helsinki Committee.
Oslo, September 2002.
Bjrn Engesland
Secretary General
3
Table of contentsTable of contents
IntroductionIntroduction 44
IIII Historical BackgroundHistorical Background 55
IIIIII The 1994 GenocideThe 1994 Genocide 77
IVIV The International (NonThe International (Non--) Intervention i) Intervention in Rwandan Rwanda 99
VV PostPost -- Genocide RwandaGenocide Rwanda 1111
VIVI The Gacaca SystemThe Gacaca System 1414
VIIVII The International Criminal Tribunal for RwandaThe International Criminal Tribunal for Rwanda 1919
VIIVII ConclusionsConclusions 2626
4
II IntroductionIntroduction
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.
5
II Historical BackgroundII Historical Background
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.
Who are the Rwandans?Who are the Rwandans?
"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.1
Traditionally all of them belong to 18 different
clans, unrelated to whether they are Hutu, Tutsi
or Twa.2
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
1
According to several sources, the distribution is as
follows: Hutu 84%, Tutsi 12%, Twa 3%, but these figures
vary. Today, all citizens are registered as Rwandans, and
there are no official statistics about ethnicity.
2
The 18 clans are: Abasinga; Abasindi; Abazigaba;
Abagesera; Ababanda; Abanyiginya; Abega; Abacyaba;
Abungura; Abashambo; Abatsobe; Abakono; Abaha;
Abashingo; Abanyakarama; Abasita; Abongera; and
Abenengwe
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.3
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 Colonial Period and the DivideThe Colonial Period and the Divide
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
3
Interview with "Peace", Kigali, 2. February 2002.
6
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.4
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.
4
The largest massacres and expulsions took place in 1963,
1967 and 1973. Fergal Keane's Season of Blood and Alain
Destexhe's Rwanda and Genocide in the Twentieth
Century.
The Civil WarThe Civil War
In the same year, the Rwandan Patriotic Front,
RPF,5
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.6
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.7
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"8
of
the conflict with the Tutsis.
5
RPF had its military branch, called the Rwandan Patriotic
Army (RPA). For the sake of simplicity, we do not separate
the RPA from the RPF.
6
Des Forges, Alise (1999): Leave none to tell the story,
Washington: Human Rights Watch.
7
The Arusha Accords can be downloaded at
http://www.incore.ulst.ac.uk/cds/agreements/africa.html
8
"The final solution" was proposed by some intellectuals,
among them Ferdinand Nahimana, who is now charged at
the Arusha court.
7
IIIIII The 1994 GenocideThe 1994 Genocide
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 Interhamwe9
, 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.
The Role of the MediaThe Role of the Media
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 1994.10
The media's role in the genocide is
9
Interhamwe means "those who stand together in fight".
Some interpret this in the actual situation as "together to
kill". Interhamwe was the most infamous killing machine
during the genocide, but also other militia groups
operated in 1994.
10
Article 19 (1996): "Broadcasting Genocide - Censorship,
Propaganda & State-Sponsored Violence in Rwanda 1990 ­
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 Kangura11
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."12
The Role of the ChurchThe 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.13
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.14
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
1994." Article 19, report, XIX, International Centre against
Censorship.
11
Kangura literally means "the voice which seeks to
awaken and defend the `majority people'" (Hutu)
12
Interview with Valérie Bémériki, Kigali Central Prison, 8
February 2002.
13
Interview with John Gunnar Rae, representative of The
Norwegian Church Aid in Rwanda, 4 February 2002.
14
Interview with Eustache Amani Karangua, Kigali 8
February 2002.
8
court on 8 June 2001.15
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.
Why Genocide?Why Genocide?
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"16
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 Manipulation1. 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.
15
Catholic World News and BBC 11 June, 2001.
16
The book was first published in 1995, but was later
published in a new edition with more than 700 pages:
Rwanda: Death, Despair and Defiance.
2. Ecological Resource Scarcity2. 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. Socio3. Socio--Psychological Features of thePsychological Features of the
PerpetratorsPerpetrators
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.17
The famous Rwandan anthropologist Philibert
Kagabo sees the genocide as politically, not
ethnically founded, because Rwandans are one
people.18
17
Uvin, Peter (2001): Reading the Rwandan Genocide,
International Studies Review, Vol, 3, Issue 3, s. 75-99.
18
Interview with Philibert Kagabo. Kigali 7 February 2002.
9
IVIV The International (NonThe International (Non--) Intervention in Rwanda) Intervention in Rwanda
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.19
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.20
19
The 1948 Convention on the Prevention and Punishment
of the Crime of Genocide. Article I, states that "genocide,
whether committed in time of peace or in time of war, is a
crime under international law which they undertake to
prevent and to punish".
20
UNAMIR had a far more limited mandate than the UN
force in Somalia. It could not us force, except in self-
defence, but even for that purpose it was poorly
equipped. General Romeo Dallaire of Canada, who led
UNAMIR, informed and warned the UN in New York about
what was happening and would happen, but met with only
limited understanding. His requests for a stronger
mandate and more resources were not met.
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,21
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".22
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.23
In the USA an intervention was not even
seriously debated. The killing of Belgian soldiers
reminded the Americans of the fiasco in Somalia
21
In addition to Carlsson, the team consisted of former
Korean prime minister Han Sung-Joo and General Rufus
M. Kupolati of Nigeria.
22
Report of the Independent Inquiry into the Actions of
the United Nations During the 1994 Genocide in Rwanda,
New York, 15 December 1999.
23
Belgium withdrew its forces after ten Belgian soldiers
were killed while trying to protect the Rwandan prime
minister.
10
and intervention became a non-subject ­ in
resemblance to an eventual participation in a
UN-operation.24
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.25
A French parliamentary commission closed in
December 1998 a nine-month investigation on
France's part before and during the genocide in
Rwanda.
24
Samantha Power: Bystanders to Genocide, The Atlantic
Montly. September 2001.
25
Philip Gourevitch: We Wish to Inform You That
Tomorrow We Will Be Killed With Our Families, Farrar
Straus & Giroux, 1998.
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.
11
VV PostPost--Genocide RwandaGenocide Rwanda
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.26
The genocide left 500,000 orphans and
400,000 widows.
National Unity?National Unity?
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."27
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.
26
Interview with Patrick Mazihmaka, personal advisor of
the President Paul Kagame, Kigali 4. February 2002.
27
Interview with Charles Murigande, Kigali, 7 February
2002.
"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 anthem28
and the annual "Heroes
Day" which sheds light on the national heroes.29
DemocratisationDemocratisation
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,
28
Surprisingly, a suspected perpetrator of genocide won
the lyrics competition and had to be brought from prison
to receive the prize. A military officer wrote the melody.
29
The "Heros Day" of Rwanda was established in 1995. The
heroes' prizes are divided into three categories. On the 7th
award ceremony, on 1 February 2002, prizes were awarded
to the unknown soldiers who lost their lives on the
battlefield, an officer, a former king who fought against
colonial rule, and named massacred Rwandans. The New
Times, Kigali 4 February 2002.
12
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."30
Human RightsHuman Rights
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 SystemThe Educational System
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
30
Interview with Tito Rutaremara, leader of The
Constitutional Commission, Kigali 7 February 2002.
can agree upon.31
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.
National Legal SettlementNational Legal Settlement
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.32
31
Interview with Emile Rwamasirabo, Rector of The
National University of Butare, Butare 6 February 2002.
32
Our sources cannot state numbers but think many
people disappeared in the prisons. Representatives of the
UN High Commissioner for Human Rights that wished to be
anonymous said that as recently as 1998 they discovered
prisons in which human rights were completely
neglected. Rwandan authorities do not deny that
human rights violations took place in prisons, but
claim that those were not widespread and
13
But the absence of a proper legal system made
the needed prosecutions difficult.
The Judicial SystemThe Judicial System
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 premire 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 d'Appel: There are four of these courts of
appeal in Rwanda, each of which covers several
counties.
Cour Suprme: The country's Supreme Court,
which sits in Kigali.
In addition: Chambre Spesiale: Special Court for
the genocide in every county.33
A court of appeal was absent for a long time in
several areas, leaving genocide sentences
unfinished. The Norwegian People's Aid is one of
many international organisations that have
contributed with expertise to rebuild the judicial
system. Rwanda only had a small number of
lawyers before the genocide, almost none in
1994, and as late as the middle of 1997 there
were only 50 lawyers. In the Cyangugu County
where The Norwegian People's Aid contributed,
there were no lawyers at the time.
To meet the precarious shortage of lawyers, the
University of Butare produced lawyers with the
speed of lightening. The genocide cases
gradually started: 346 were sentenced in 1997,
1318 in 1999 and 600 in the first quarter of 2000,
something Rwandan authorities describes as
extraordinary, but it was far from satisfactory
considering the great number of cases.
systematic violations, as some human rights
organisations have reported.
33
Report on a project to rebuild the judicial system
in Rwanda, initiated by Norwegian People's Aid,
Oslo, June 1998.
As of February 2002, approximately 15.000 of the
about 130.000 people imprisoned after the
genocide, have been released. About 6000 have
been put on trial so far, of which 20-25 per cent
have been released.34
The high number of
releases indicates that many of the remaining
110.000 also will go free.35
Death PenaltyDeath Penalty
23 people have been executed so far. This has
relieved some of the pressure from popular
demands for the most extreme kind of revenge.
The Prosecution estimates that 3.000 or maybe
as many as 5.000-10.000 people will be
sentenced to death, but the death sentence will
only be used for the most serious cases. Public
Prosecutor Gerhald Gahima thinks that the
worst perpetrators deserve the law's maximum
penalty ­ death, but it may hurt the
reconciliation process if all the people
sentenced to death are actually executed. In
addition Rwanda runs the risk of massive
international criticism.36
Rwanda is already subject to heavy criticism
concerning prison conditions. But Tito
Rutaremara of the RPF reckons that Rwanda's
current legal system is not able to handle the
large number of cases and that a delayed legal
settlement may hurt the reconciliation process.
He replies to the criticism in this way:
Rwanda is a poor country. The human rights in
our prisons are nothing to brag about. The
prisoners are suffering, but what is the
alternative? We cannot let them out, but we
cannot really keep them in now either. To follow
the western trial process would take far too long
time and therefore be a violation of the human
rights itself. We had to do something.37
34
Those acquitted are not offered compensation,
because the Rwandan state lacks the necessary
funds.
35
Interview with The Rwandan Public Prosecutor,
Gerald Gahima, Kigali, 8 February 2002.
36
Public Prosecutor Gerald Gahima says that far
from all those sentenced to death will be executed,
although capital punishment will be enforced for
those sentenced of very serious crimes.
37
Interview with Tito Rutaremara, leader of the
Constitutional Commission, Kigali 7 February 2002.
14
VIVI The Gacaca SystemThe Gacaca System
The legal system in Rwanda was not designed to
respond to the massive violence during the
genocide in 1994. The country did not have the
capacity to prosecute the enormous number of
suspects; it would have taken several hundred
years to finish all the trials. "Justice delayed is
justice denied" it is said. As a consequence the
authorities formed the popular tribunals, the
Gacaca.38
The Gacaca has traditionally been a conflict-
solving council used for centuries before the
colonial times, to solve local and regional
conflicts. A modernised version will from mid-
2002 relieve the ordinary legal settlement.
Gacaca will involve perpetrators, victims and
the whole local population in the legal process.
The goal is not only to assist the ordinary justice
system to finish all the cases but also to heal
wounds, to bring forth the truth, to create
justice, and to contribute in the reconciliation
process.
An election was held in October 2001 in which
the people elected about 250.000 Gacaca-
judges, men and women. They are the
"Inyangamugayo", the people of integrity. 781
Gacaca instructors, judges and last year's law
students, trained them. The three-month
training finished in July 2002, when the Gacaca
processes started.
Previously around 300 pilot trials have been
held, so called "gaca-cases", around the country,
which have resulted in several releases.
Considerable amounts of people were held
imprisoned without documentation about their
imprisonment. These prisoners were taken
before the people through hearings similar to
the Gacaca. If they were accused of anything
worth consideration of suspicion, they were
returned to prison to be tried in front of the
Gacaca. In cases without any accusations, the
38
The Government assigned a group of researchers with
the task of assessing various ways to reconcile the people.
The work to develop the Gacaca system started in 1995
with judicial and practical planning of the legal processes.
The law was put before the interim national assembly
(L'Asseblée Nationale de Transition) on 12 October 2000.
prisoners could walk into the crowd as free
persons after years of imprisonment.39
Structure and JurisdictionStructure and Jurisdiction
The Gacaca will operate on four levels: from
cell, sector, municipality and county. A cell is
the smallest administrative unit of the country.
In Rwanda, there are approximately 9000 such
cells. On the cell level, all citizens over the age
of 18 constitute a general assembly. If a cell has
more than 200 members, it has to be split in
two, but no cell can have less than 50 members.
The main task of the assembly is to make a list of
which members of the cell who were killed as a
result of the genocide, but also of the killers,
and in the same way both the raped and the
rapists. In addition, the cell shall prepare a list
of who has moved away from the cell. The
general assembly elects a council of 19 members.
The "Secteur", "District" and "Province"-levels in
the Gacaca system are organized in the same
way, with general assemblies consisting of
members from the level below. Here a council of
19 members is also elected.
An Organic Law of 1996 categorises the
prisoners into four categories based on the
seriousness of the crimes they have been
accused of (chapter 2),40
and decides on which
levels their cases are going to be held. Gacaca is
going to handle the cases connected to the
genocide in the period October 1st 1990 to
December 31st, 1994.
The four categories are:
1. Those who planned, organised and led the
genocide, together with mass murderers, rapists
and torturers. These people will be dealt with by
the ordinary judicial system. Only the ones
belonging to this first category can be sentenced
to death. A confession may reduce the sentence.
2. Those who did not take part in the planning,
only in the actions, which have resulted in
39
Interview with Wanda Hall from Hirondelle news
aganecy, Kigali, 10 February 2002.
40
Organic Law No. 08/96 of August 30, 1996 on the
organization of Prosecutions for Offences constituting the
Crime of Genocide or Crimes against Humanity committed
since October 1, 1990.
15
manslaughter. These will be judged by the
Gacaca on municipality level and may be
sentenced to life in prison. A confession before
conviction reduces the sentence from lifetime to
7-11 years in prison (art. 15a) while a later
confession reduces the sentence to 12-15 years in
prison (art. 16a). Eight years must be served in
prison, the rest as community service.
3. Those who participated in serious
infringements against people, without killing.
The Gacacas on sector-level will treat these
cases, which will be punished with a shorter
sentence, half in prison and half as community
service.
4. Those who participated in the destruction or
plundering of property. These cases will be
treated by the lowest Gacaca tribunal on cell-
level and may be punished by paying
compensation to the victims (art. 14d).
Gacaca on the county level is the instance of
appeal for all the three lower instances.
As already noted, the Gacaca judges will not be
able to sentence people to death, and
confessing pays off. The strategy of the
prosecutors is to first handle the cases of those
who confess.41
They are of first priority in the
Gacaca process, as a nail bar on those who do
not confess. These will later be important
witnesses against those who claim not guilty.
The authorities expect more prisoners to see the
advantage of confessing and avoid death
penalty, something that will make the legal
process easier.
Legal ProtectionLegal Protection
The Gacaca judges are supposed to judge by
consensus, attached to traditions from before
the colonisation. Centuries before the
colonisation the wise men of the village had
gathered in the Gacaca councils, without
prosecutor or defender. Women were not
allowed to participate, but were to be consulted
before decisions were made. By consensus they
solved cases involving everything from marital
problems to violence and theft. The suspect was
allowed to speak, so were villagers who could
contribute to solving the case. Incompetence
41
According to the annual report of Human Rights Watch
(2001-2002), 15.000 (April 2002) have confessed.
was not an issue, like when the suspect was the
son of one of the council members. The council
had to discuss their way to consensus anyway.
This way, his own father could judge the son.42
In the Gacaca today, women are elected as
judges.
The Gacaca tribunals and the ordinary judiciary
have a close co-operation. The Gacaca are
guided and supervised by a co-ordination
committee (Comité de Coordination) in addition
to national and international NGOs to prevent
abuse of the system. An information programme
has been established to inform the people about
the system and its function. According to the
plan, Internews Foundation will do some of the
work. The organisation is also involved in
informing the people about the work of the
Arusha Tribunal and the ordinary court
processes in Rwanda.
Many people fear that the Gacaca can be a
source of new unrest, because there are many
family and social ties among witnesses, victims
and judges. Most Gacaca judges are Hutus, who
form the majority of the population. Therefore,
the relatives fear unjust releases when the
suspects are neighbours or from the judges'
families. Many relatives are also worried that
the Gacaca process will result in too mild
sentences for perpetrators who have committed
terrible crimes. Recent sentences are relatively
low, the strictest being 17 years of
imprisonment.
Because Gacaca shall be done in openness, by
consensus and with the participation of a large
crowd, Kagabo says that with the historical
experiences of the Gacaca in the background,
this cannot be considered a great danger.
The criticism from human rights organizations
has focused the lack of legal protection.
Amnesty International criticises the legal
process, pointing that suspects do not have the
right to a defender and that judges lack
sufficient competence.43
But one of the reasons
the Gacaca was chosen was exactly the lack of
defenders and judges. The majority of the few
42
Interview with Philibert Kagabo, Kigali, 7 February 2002.
43
Amnesty International report: Rwanda: The troubled
course of justice, AI-index: AFR 47/010/2000 (26/04/2000).
16
lawyers in Rwanda do not wish to defend
genocide suspects. In the Gacaca processes, the
prosecutor's office will state its accusation, and
then the people who have showed up will speak
for or against the accused.
The accused has the right of appeal to a higher
court (Gacaca on county level). But it is still
important that independent observers follow
the legal process to monitor it and give it more
legitimacy. Rwandan authorities answers the
criticism by pointing out that the human rights
organisations do not give any alternatives and
that the country do not see any other
solutions.44
The Norwegian Helsinki Committee sees the
Gacaca-process as promising, provided that it is
carried through in a way that is perceived as fair
both by Hutus and Tutsis.
Reintegration of Released PrisonersReintegration of Released Prisoners
Because many already have been imprisoned for
more than seven years and because half of the
sentence can be converted into community
service, a large number of inmates will probably
be released relatively soon. Many express a
deep concern for the hatred innocent prisoners
will carry with them. It is described as an
unpredictable volcano that can erupt when the
prisoners are let out. They are the poorest of the
poor, and many will come back to broken family
structures, they may be met with hatred from
the villagers and may have trouble finding
work.45
Another problem will be eventual
conflicts concerning the right to land and
property. Still there are many optimists who
work to prevent problems attached to these
circumstances. The Norwegian Church Aid has
been among the initiators of the project
Interfaith, which is established to use the
congregation's power in the service of
reconciliation. A total of 28 religious
communities ­ both Christian and Muslim ­
have joined the project for released prisoners
and survivors. Released prisoners learn how to
44
Republic of Rwanda: Reply to Amnesty International's
report: "Rwanda: The troubled Course of Justice".
(http://www.rwanda1.com/government/)
45
Interview with John Gunnar Rae, representative of The
Norwegian Church Aid in Rwanda, 4 February 2002.
meet survivors and ask for forgiveness. They
have also been offered classes on how to easier
get a job. There seems to have been a change of
climate behind the walls as the Gacaca process
has started rolling. It has given hope, noticed
both by volunteers, inmates and the prison
management in the Kigali central prison. The
inmates have not known if or when they will be
released. Now the time has come for a lot of
them. Eustache Amani Karangua, president of
the Interfaith, says: "More than seven years
have passed since the genocide. It has been a
learning process both for the ones inside and
the ones outside the prisons."
The authorities have prepared the Gacaca by
giving information programmes to both the
villagers and the prisoners. In addition several
private organisations, including religious ones,
have run projects in the prisons to prepare the
prisoners for their reintegration to society. The
Gacaca has given the prisoners hope that their
fate soon will be decided.46
Far from all the participants in the manslaughter
are imprisoned. New names on perpetrators are
expected to appear in connection with
testimonies in the Gacaca processes. It has been
estimated that as many as 50.000 of those guilty
were never arrested. Many of them will risk
arrest as the inmates are released from
prisons.47
The Psychosocial AspectThe Psychosocial Aspect
The Gacaca process will strain society, because
it will open wounds and represent both great
possibilities, but also great dangers, say
researchers Ervin Staub and Laurie Perlman who
are working on psychosocial problems and
reconciliation in Rwanda.48
A large part of the
population is traumatised physically and
46
Interview with Eustache Amani Karungua, Kigali 8
February 2002.
47
Interview with The Rwandan Public Prosecutor Gerald
Gahima, Kigali, 8 February 2002.
48
They are working on a project supported by John
Templeton Foundation in co-operation with the local
organisation MUSECCORE. The works spans healing
processes, forgiveness and reconciliation. The conclusions
were also expressed at a conference in August 2001 on
psychosocial aspects of reconciliation. Several
prominent people from Rwanda attended the conference.
17
psychologically, both among the victims and the
assaulters. In addition, many people, especially
from the generation who were small children
during the genocide, may get to know the
horrible truth of what happened to their
parents. The Gacaca has the potential to
contribute to healing wounds and reconciliation,
but also to provoke and renew feelings of grief,
pain, anger and hatred. It is crucial that an
adequate psychosocial groundwork is done, if
the process shall have a positive effect.49
Non-
governmental organisations has in co-operation
with the authorities made a programme were
experts are leading trauma groups, among other
things by use of radio, to follow these problems.
CompensationCompensation
Compensation as a means to reach a settlement
can contribute to create a feeling of justice
through repairing the emotional and physical
losses and encroachments the victims have been
experiencing.
The compensation for victims of genocide in
Rwanda is a major challenge. Those who
participated in the killings are usually poor and
unable to pay compensation to their victims.
The earlier regime is out of the country, leaving
only ruins, while the new regime is unable to
pay compensation to such a large number of
victims.
Still, it is arranged that the victims can receive
compensation, which is going to be paid by the
perpetrators, but also through a state fund ­
"The National Fund for Assistance to the
Survivors of Genocide and Massacres."
According to the authorities, 5% of the national
budget is being earmarked to this fund. The fund
is helping victims with shelter, medical care,
education and other needs. But it is unrealistic
to believe that this will work satisfactory in
Rwanda without assistance from outside. The
released prisoners on the other hand, as it looks
today, will not be paid compensation. This is
something that can cause new tension.
49
Laurie Anne Pearlman and Ervin Staub: "The Gacaca
Process as an Avenue toward Healing and Reconciliation",
2001.
The Gacaca and the ReconciliationThe Gacaca and the Reconciliation
ProcessProcess
Even if the legal settlement cannot be viewed
isolated from other conditions that influence the
reconciliation process, there is a general
attitude among central government officials that
a lot of things depend on a successful Gacaca
process. It is emphasised that the Gacaca is a
kind of mixture of a truth commission and a
judicial authority. Amnesty, as in South Africa,
would not be accepted in Rwanda.50
In Rwanda
the opinion is that an offer of a severe reduction
of the sentence will make the prisoners tell the
truth and maybe also apologise. This way one
avoids amnesty, which may seem unjust to the
victims, especially in Rwanda were the assaults
were so serious. In conformity with the Truth
Commission in South Africa, The Gacaca will give
the victims and the perpetrators the possibility
of meeting each other. In addition to bring forth
the truth through the Gacaca, the legal
settlement will contribute to put an end to the
impunity culture that has characterised Rwanda.
Gacaca gives the legal settlement a connection
to the local communities, something the Arusha
Tribunal is unable to do. For the people, it is
important to see that also mayors may have to
stand handcuffed in front of the local judges.
Everybody whom the Norwegian Helsinki
Committee has spoken with in Rwanda supports
the Gacaca, sometimes enthusiastically. This
also includes human rights organisations, both
national and international. The Gacaca concept
is well received also by the population, including
prisoners, provided it works as planned.
Some scepticism towards the project still exists.
This is partly because of the time it has taken to
put the system in place. Many have been
imprisoned for 7 years without sentence, and
thus have accumulated lots of bitterness and
anger during that time. Both Rwandan and
international lawyers are concerned about
public security. Some fear that the Gacaca will
bias crimes committed by Hutus, and to a lesser
extent address Tutsi crimes in the same period.
50
Mazihmaka, Gahima, Murigande and several others
whom we interviewed stressed this.
18
It is important that the reconciliation process
includes the same people and the same levels in
society that were involved in the conflict. A
related problem can be that many people have
resettled in order to avoid punishment.
Rwanda's extensive reconstruction and
settlement programme has to a large degree
contributed to this, because housing offered
through the project is not necessarily in the
same cell, sector or district as the recipient lived
before the genocide. The Gacaca cell has lesser
opportunities to find out if a person is guilty of
crimes if he or she has resettled from elsewhere.
Thus, resettlement is a challenge for the Gacaca.
At the same time it is important that the
programme of reconciliation and trauma
treatment reaches the people, when wounds
again are exposed in this extensive legal
process.
The Gacaca is an answer first and foremost to a
capacity problem in the Rwandan legal system.
"Gacaca is maybe not the most perfect process,
but over time we may achieve good results. This
is a choice we have made," president Paul
Kagame said during a meeting with the press in
April 2002 in Kigali.51
The president's words reach the heart of the
Gacaca and Rwanda's dilemma. Since the "Hutu-
revolution" in 1959, a series of massacres took
place without punishment until the real
Armageddon in 1994. Rwanda has decided to
reverse this trend. Paul Nantulya in the South-
African non-governmental organisation
ACCORD52
describes the Gacaca as an African
solution to an African problem.53
In addition to the Gacaca solving a legal state of
emergency, Nantulya also sees other
advantages. As a contrast to the complexity of
the ordinary legal system, the Gacaca will to a
wider extent include the locals and as a
51
Hindorelle Press Agency: www.hindorelle.org
52
ACCORD: African Centre for Constructive Resolution of
Disputes.
53
Interview with Paul Nantulya, Drammen, Norway,
December 2001. He also wrote an essay about Gacaca:
"The Gacaca-system". Conflict Trends. No 4/2001, Durban,
South Africa.
consequence have a greater chance of healing
wounds and contribute to reconciliation.
To succeed with a legal settlement, it is
important that the legal process is being
regarded as fair among the majority of the
people. Everyone The Norwegian Helsinki
Committee have talked to in Rwanda, including
prisoners,54
has been fundamentally positive to
the Gacaca. The Rwandans seem to be proud of
having found a solution in their own cultural
heritage. This may in itself be a contribution to
reconciliation because it gives a feeling of
community and a common identity.
The legal settlement is a big challenge for the
country in addition to education, poverty, and
HIV/AIDS. A successful legal settlement is
necessary to stabilise the country and to focus
on development and democratisation. Gacaca
may face many problems, but it has a great
potential in contributing to the reconciliation
process. Rwanda's Public Prosecutor only views
one possibility for the Gacaca to fail, namely the
lack of resources for a qualitative
implementation. Victor Mugarura says
optimistically: "The Gacaca will solve far more
problems than it will create".55
This far, the
Gacaca tribunals seem to work generally well.
54
The prisoners in Category 1, who are facing the most
serious charges, have no advantage of the Gacaca, except
that the legal settlement will be faster. In this group we
met inmates who criticised the Gacaca but who still
recognised the advantages compared to if everyone had to
go through an ordinary legal process.
55
Victor K. Mugarura: Restorative Justice through Gacaca,
Kigali: The New Times, 11. October 2001.
19
VII The International Criminal Tribunal for Rwanda (ICTR)VII The International Criminal Tribunal for Rwanda (ICTR)
The UN Security Council was for a long time
reluctant to acknowledge that genocide had
taken place in Rwanda, probably to avoid the
commitments following from such an
acknowledgement. Only close to the end of the
genocide, on 1 July 1994, the Security Council
appointed an expert commission to investigate
the claims of genocide.56
Exactly three months
later the first report was released, which
concluded that a systematic and planned
genocide had happened. The commission
recommended that an international tribunal
similar to the one for the former Yugoslavia in
The Hague should be established.
The UN Security Council established "The
International Criminal Tribunal for Rwanda"
(ICTR) on 8 October 1994, four months after the
fall of the genocide regime. The establishment
was historical. This was the first international
institution established to prosecute perpetrators
in a solely internal conflict. Both the
Nuremberg- and Tokyo processes involved
international conflicts. Also the wars of the
former Yugoslavian Republics in the 1990s had
an international character.
Rwanda was one of the initiators of the Arusha
Tribunal, but voted against the resolution
because the country did not agree on the
jurisdiction. The decision to limit the Tribunal's
jurisdiction to the period 1 January to 31
December 1994 was among the most
controversial. Rwanda claimed that the genocide
had taken place and had been planned since
1990. This was also the conclusion of the UN
Special Rapporteur shortly before the large-
scale killings started on 6 April 1994. It was
ascertained that murders of Rwandan Tutsis in
the period 1990-93 constituted genocide in a
judicial sense.57
Another complaint was that the Tribunal did not
have the possibility to sentence people to death
penalty, something Rwanda wished to do in line
56
UN Doc. S/RES/935(1994).
57
UN Doc. E/CN.4.1994/7/Add.1 (1993). Report reviewed by
the UN Commission for Human Rights in April 2002.
with its own penal law. Rwanda's third and
important complaint was that the Tribunal was
to be placed outside the country's borders.58
There were also other, less serious complaints.
Mandate and StructuresMandate and Structures
The Tribunal's mandate is to investigate and
prosecute 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 or by Rwandan citizens in one of
the neighbouring countries in the same period
(art. 2-4 in the statutes of the Tribunal). Article 8
gives the Tribunal the right to take on the legal
prosecution of crimes under its jurisdiction from
any state. Article 9 states that the Tribunal may
retry a case that has been conducted before a
national court of law. A sentence in the Tribunal
is on the other hand final and cannot be brought
before a national court.
Security Council resolution 955 of 8 November
1994 stresses that the Rwanda Tribunal shall
"contribute to the national reconciliation
process and to the maintenance of peace." The
Tribunal is built on the same model as the
Yugoslavia tribunal (ICTY) with common
Prosecutor and Chamber of appeal in The Hague
in the Netherlands.
The Rwanda Tribunal has been described as a
"three-headed monster" consisting of the
following units independent of each other: the
Tribunal Chambers,59
the Prosecutor's Office,60
58
Security Council Resolution 997, 22 January 1995 ­ the
decision to locate the Tribunal in neighbouring Tanzania.
59
The Tribunal Chambers: There are currently nine judges
in three chambers, headed by a president and a vice-
president. In addition there are translators and a large
number of other employees. The UN General Assembly
elects the judges.
60
The Prosecutors Office has an investigation unit in
Kigali that gathers evidence against the suspects. In
Arusha the office has the powers to prosecute suspects,
with prosecutors that lead the offence in court, and an
evidence unit. The Chief Prosecutor is common for the
Rwanda and Yugoslavia tribunals.
20
and the Registry.61
The Tribunal has a total
number of approximately 800 employees in
Tanzania and Rwanda. By the turn of the
millennium the Tribunal had collectively spent
about 400 million dollars since its
establishment. The 2001 budget was 100 million
dollars, while the 2002 budget is nearly doubled
to 192 million dollars.62
ResultsResults
It is generally agreed that the Rwanda Tribunal
had a difficult start. Opinions about the reasons
for this vary. Sources in the Tribunal give the
following explanation to the fact that the
Tribunal took a long time to establish: The
placement of the actual building in Arusha was
problematic. The town lacked necessary
infrastructure. Everything had to be constructed
from scratch, which was time-consuming and
expensive.
Others claim that incompetence, laziness and
corruption are more important reasons. Many
sources admit that a lot has gone wrong and
claim that big challenges still remain before the
Tribunal can function satisfactory.
As of August 2002 the Arusha Tribunal has
indicted nine persons. Eight have been
convicted, of whom three on the basis of
personal confessions, while one has been
acquitted. Another 17 are now on trial in the
Tribunal in cases that run parallel in the three
Tribunal chambers with sentence at the latest
next year. Another 30 or so prominent accused
are in custody pending trial.
The Arusha Tribunal has to a large extent
managed to get arrested and judge central
architects behind the genocide. It is the first
international tribunal to indict, arrest and
61
The Registrar: As Assistant Secretary General, the
Registrar reports directly to UN Secretary General Kofi
Annan. An administrative unit heads the bureaucratic
apparatus, but the Registrar also has five units in a judicial
and legal service section, of which two assist and protect
witnesses of the prosecution and the defence.
62
For more information about the Arusha Tribunal's
budgets, see the following article from 5 April 2002, in
Internews: Expensive Justice: Cost of Running the Rwanda
Tribunal.http://allafrica.com/publishers.html?passed_nam
e=Internews&passed_location=Arusha
convict a head of government for genocide. On 4
September 1998, the Tribunal convicted and
sentenced Jean Kambanda, former Prime
Minister of Rwanda, to life imprisonment for
genocide and crimes against humanity.
Kambanda was one of those who pleaded guilty.
In addition, ministers, top politicians, prominent
clericals, military leaders, bureaucrats, media
bosses and intellectuals are waiting for criminal
proceedings and sentence in the Tribunal's
prison in Arusha. Without the Tribunal's
existence these would probably be free men.
The Chief Prosecutor Carla Del Ponte has
declared that another 111 genocide suspects will
be arrested, most of them Rwandans on the run
in other countries. Among the suspects there are
also supposedly members of the RPF.
By punishing some of the central persons behind
the 1994 genocide, the Arusha Tribunal has sent
a strong signal that also top leaders will be held
personally responsible for serious violations of
international humanitarian law.
Despite the limited number of judges, the
Tribunal has contributed considerably to the
development of a legal practice for the
enforcement of humanitarian law. The Tribunal
applied for the first time the Genocide
convention of 1948. It has also applied Protocol
II of the Geneva Convention of 1977 in its ruling,
i.e. rules for internally armed conflicts.
Until the Tribunal's 2 October 1998 conviction of
mayor Jean-Paul Akayesu, the Genocide
convention had been a sleeping document for 40
years. This way the Tribunal confirmed that
genocide had taken place in Rwanda. This
judicial decision was also pioneering in that it
defined systematic rape as genocide.63
The Tribunal has adopted about 600 different
decisions in connection with the ongoing
63
In the case of Jean-Paul Akayesu (Decision of 2
September 1998, Case No. ICTR-96-4-T) the sentence
concluded that sexual violence constitutes genocide
insofar as it is committed "with the specific intent to
destroy, in whole or in part, a particular group, targeted
as such". ICTR further asserts, "sexual violence was a step
in the process of destruction of the Tutsi group ­
destruction of the spirit, of the will to live, and of life
itself".
21
genocide cases. This has contributed to form a
foundation for a uniform legal process in
international criminal law. Gradually the
sentences become shorter and the proceedings
run faster. The judgments and legal practice of
the Tribunal are also of great importance for the
future work of the new permanent International
Criminal Court (ICC). The judgements of the
Tribunal have also given a considerable
contribution in describing what actually
happened in 1994.
Finally, the Tribunal is an example of increasing
willingness of the international community to
fight impunity for grave abuses. This may have a
deterrent effect on despotic leaders around the
world. However, since the jurisdiction is
restricted to 1994, the legal process has had a
limited deterrent effect for perpetrators after
1994. This especially concerns the ongoing
conflict in Congo where the parties from
Rwanda are involved.
The Rwandan army fights inside of neighbouring
Congo against the former army and the
Interhamwe guerrillas who have regrouped
there after being forced to flee by RPF in July
1994. According to the peace treaty between the
presidents of Congo and Rwanda, which was
signed in South Africa in July 2002, the Rwandan
army will withdraw from Congo, while the
Kinshasa government will demilitarise guerrilla
groups that threaten Rwanda. Another
important development is that The Democratic
Republic of Congo has ratified the Rome Statute
of the ICC, meaning that this court will have
complementary jurisdiction to legal authorities
in Congo and Rwanda. If Rwandan citizens
commit crimes within the jurisdiction of the ICC,
and neither authorities in Congo nor Rwanda
prosecute them, the ICC could do it.
The Arusha Tribunal and RwandaThe Arusha Tribunal and Rwanda
The Tribunal was established according to
Security Council resolution 955 to deliver justice
and contribute to peace and the reconciliation
process in Rwanda. An important question is
therefore how the work of Tribunal influences
the situation within Rwanda and development of
peace of stability in the region.
Despite Rwanda's dissatisfaction with the
mandate and the slow legal process in Arusha,
the government has as a general principle been
willing to co-operate with the Tribunal. Most of
the Rwandans that The Norwegian Helsinki
Committee interviewed underlined the
importance of the Tribunal.
From a Rwandan perspective the Tribunal is
important since it may try suspects that have
escaped to other countries. Rwanda is still
practising death penalty and several countries
are therefore reluctant to extradite genocide
suspects to the country.64
But generally, the Arusha Tribunal has so far not
satisfied the Rwandans' need for justice, and
neither the authorities nor Rwandan
organizations save their criticism about the
Tribunal. There are several very serious
challenges to improve the relationship between
the Tribunal and Rwanda.
Recognition and the TruthRecognition and the Truth
It is an important recognition of the sufferings
of the victims that an independent international
tribunal states that genocide has taken place in
Rwanda and prosecutes some of the main
perpetrators. A documented description of "the
truth" is an important part of the reconciliation
process, but it is limited how much the Arusha
Tribunal has managed to contribute to bring
forth the whole truth about several key
questions. Who committed the genocide, and
how was it organised and financed?65
And who
shot down the president's airplane on 6 July
1994 ­ an important trigger of the genocide.
64
Public Prosecutor Gerald Gahima says to The Norwegian
Helsinki Committee that Rwanda may give guarantees that
the country is not going to use the death penalty in
specific cases. This way, extraditions may be obtained in
the future, after the Arusha Tribunal is closed down.
65
International Crisis Group has criticised the Tribunal's
lack of ability to disclose the truth. In its report "The
Rwanda Tribunal: Justice Delayed" from June 2001, ICG
states: "Seven years on it has still not been able to shed
light on the design, mechanism, chronology, organisation
and financing of the genocide, nor has it answered the key
question: who committed the genocide?"
22
Both sides in the conflict have their own
"truth"66
and a clarification of this question may
be an important contribution to the
establishment of a common truth. Even if we see
that some of these questions lie outside the
Arusha Tribunal's mandate, it should perhaps be
given priority because of the great value such a
clarification may have in Rwanda.
The Big Distance and (The Big Distance and (lack of)lack of)
InformationInformation
The legal process takes place far from the
people in Rwanda. Many claims that what
happens in Arusha do not concern them and
they do not get acquainted with it. The long
distance also hampers logistics and makes the
work slower. A few of the problems are:
Many people have never before been abroad or
travelled by airplane
The need for protection of witnesses
Acquisition of travel documents
The Rwandan government has from the
beginning wanted the Tribunal in Kigali, and has
on several occasions demanded that the
Tribunal be moved there, or at least that some
trials be held there. The Tribunal has shown the
will to hold some sessions in Kigali, but so far
little progress has been made.
To the extent that the Tribunal has managed to
document parts of the truth on the genocide, it
may seem as though it has failed to pass this on
in a sufficient way to the people. It is important
that the victims see and experience that justice
is taking place, but this seems to have had low
priority at the Tribunal.67
However, after
massive criticism there was after some time
established an information centre in Kigali and
the Tribunal supports some information
programmes around the country. The American
66
The genocide regime claimed that RPF shot down the
plane, and used that for all it was worth. RPF claim that
the architects of genocide themselves ordered the
shooting down of the plane.
67
As an illustration, the media was originally not offered
space at the Tribunal. The organisation Hirondelle granted
35.000 US dollars to the Tribunal for a press centre in
1995, but only after strong pressure were premises set up
in 1997. All equipment was later obtained through other
sources of funding. Hirondelle never made an inquiry into
what happened to the original grant.
foundation Internews Network co-operates with
the Tribunal in producing videos showing its
work. Until now, four videos have been made.
One of the reasons for producing the videos is
that it is difficult to reach people in the
countryside with information.
There are no daily newspapers, but two papers
are published two-three times a week, one of
them (The New Times) only in English. These are
mainly distributed in the cities. In the real
countryside there are no papers at all, and
illiteracy is widespread. Rwanda has no national
network of television, and television sets are
found only in larger cities. In addition, the
countryside is suffering from a poor and
unstable power supply; this is of course also
making it impossible to use TV to inform the
people.
The radio is very important and radio broadcasts
can have great leverage, both for the good and
for the bad (as was seen during the genocide,
with RTLM). The authorities use large public
gatherings to inform and discuss various issues
with the people, for example the Gacaca or the
new Constitution. In addition, information
videos and even drama, theatre, art and comics
have been used.
It is important that organisations outside of
Rwanda take part in the information work, so
that the information is perceived as neutral.
Internews provides a large contribution to meet
this challenge. Internews has so far managed to
show the four videos about the work of the
Arusha Tribunal in various locations in Rwanda.
The same kind of work is also taking place to
inform people about the national legal process
and the Gacaca.
InefficiencyInefficiency
The general attitude in Rwanda is that the
Tribunal has not delivered good enough results.
Some, even central politicians, claim the
Tribunal's work so far has been scandalous. As
an example it has been pointed out that the
large spending does not stand in proportion to
the results. The expenses are enormous and the
results meagre. The money could have been
23
spent more successfully on a faster
implementation of the legal process in Rwanda.
Critics describe the legal process as far too slow.
Public Prosecutor Gerhald Gahima points out
that in three of the nine Tribunal cases where
there is sentence in the first instance, there
were confessions which made these easier to
carry out. He points to Rwanda, which with only
a fraction of the Tribunal's budget has passed
6000 genocide sentences.
The Arusha Tribunal has joint Chief Prosecutor
with the Yugoslavia Tribunal, which may make
progress slower. The fact that the Chief
Prosecutor spends more time in The Hague than
in Arusha and Kigali creates much frustration in
Rwanda. The position as Deputy Chief
Prosecutor at the Arusha Tribunal, with office in
Kigali, has been unfilled since spring 2001.68
The
Government of Rwanda has several times
proposed to divide the Prosecution Office in
order to have a Chief Prosecutor who can work
on a daily basis in Kigali and Arusha. Now the
Chief Prosecutor must lead the work in several
locations: The Hague, Former Yugoslavia, Arusha
and Kigali. Obviously, this may be a difficult task
for one person.
InequalityInequality
The Arusha Tribunal has to follow international
standards for convict treatment. Prisoners in
Rwanda suffer from much worse conditions. It is
a common saying in Rwanda, that the Arusha
prisoners "enjoy luxury conditions". They have
access to telephones, the Internet, good food,
Medical treatment, their own garden, etc.
something most Rwandans can only dream of.
All these factors are perceived as unfair among
ordinary Rwandans.
Also when it comes to sentences, there is great
inequality. Masterminds of the genocide and
other key perpetrators get a maximum of life
sentence in Arusha, while the subordinates
arrested in Rwanda risk death penalty. So far 23
68
According to Florence Hartmann, Spokesperson for
Arusha tribunal, the position hopefully will be filled by
September 2002. Internews, ARUSHA 31 July 2002.
out of 1000 death sentences have been carried
out.
Mismanagement and MistrustMismanagement and Mistrust
Another problem that has marked the Arusha
Tribunal from the start is incompetent
employees at all levels of the Tribunal's
hierarchy. An illustrating example is that eight
lawyers given on a loan to Rwanda from another
African country were not found to have the
necessary qualifications to work in Rwanda, but
several of them later got well-paid jobs at the
Tribunal.
Many are offered a job even though they lack
the relevant background from their own
country. We have been given examples of
investigators who cannot use a computer and
therefore do not themselves question suspects
and witnesses. In court there are examples of
judges who do not have experience in penal law,
for example a Russian former diplomat, or a
central person in the prosecution who has his
background in business law. Furthermore, a key
person in the prosecution is not fluent in the
official languages of the Tribunal. One reason
for problems in recruiting competent employees
might be that it is not attractive to work in Kigali
or Arusha. There is however a lot of criticism
that the Tribunal does not have a professional
recruitment strategy. Some measures have
however been taken. In May 2001 the Chief
Prosecutor fired seven senior attorneys, citing
"professional incompetence".
One of the scandals related to the Tribunal was
the fact that genocide suspects indirectly were
on the Tribunal's payroll. They had been
recruited to work for the defence, which is
financed by the Tribunal. Two of these assistants
were later themselves prosecuted, while two
others were fired.
Anonymous sources at the Tribunal also confirm
that people with ties to the old regime are paid
by investigators to find witnesses. In the view of
Rwandan authorities, the Tribunal in this way
supports the old regime that was responsible for
the genocide.
24
One of the prisoners has even established his
own website69
and Rwandan governments are
worried that the prisoners can keep in touch
with the Interhamwe in Congo from the Arusha
prison.
Another episode that has contributed to weaken
the Rwandans' faith in the Tribunal was when
three judges laughed out loud when a rape
victim in the so-called Reverend Case of Butare
was in the witness box in January 2002. It
happened when the witness, a mass rape-victim,
was cross-examined by a defender. The witness
felt humiliated and left the Tribunal in protest.
This led to a sharpened atmosphere between
Rwanda and the Tribunal. The organisation
Ibuka, which represents genocide victims, ended
its co-operation with the Tribunal and
recommended that victims (witnesses) boycott
the Tribunal.
The judges have later denied that they laughed
at the woman, but claim that they laughed at the
defenders "hopeless" questions.70
Attempts to
reconcile Ibuka and the Tribunal have so far
failed.
The Registrar of the Tribunal on 4 March 2002
proposed to the Government of Rwanda to
establish a joint commission to investigate the
allegations. But because of an inability to agree
on certain fundamental points, the Registrar
decided to withdraw the proposal. The Registrar
reassured that witnesses "will not suffer any
mistreatment, and that their welfare and
security will continue to be ensured in the
interest of the proper administration of
justice."71
In Rwanda all critical events attached to the
Arusha Tribunal have a tendency to attract much
attention. The positive sides of its work barely
69
This was confirmed by representatives of the Tribunal,
but it was claimed that the inmate received external
assistance to update the website.
70
This stirred great emotions in Rwanda, and most of our
interviewees, even high in the Rwandan administration,
stressed this. The explanations by the judges were not
accepted.
71
Statement, Arusha, 17 April 2002 "The Registrar decides
to withdraw his proposal to establish Joint Commission to
investigate allegations of mistreatment of witnesses from
Rwanda."
tend to show. One of the reasons may be the
lack of an offensive media strategy by the
Tribunal, but there is also a general lack of
confidence towards the world community and
international institutions. In particular the
betrayal in 1994 has left deep marks. This adds
to the scepticism towards the Tribunal based on
specific episodes.
As already noted, if the international legal
settlement is to contribute to reconciliation it is
crucial that it is positively received in Rwanda.
This is a great challenge to the Arusha Tribunal.
Many Rwandans the Norwegian Helsinki
Committee talked with felt that the Tribunal is
not for them but for the world community.
The CoThe Co--operation Between Rwanda andoperation Between Rwanda and
the Arusha Tribunalthe Arusha Tribunal
The co-operation between Rwanda and the
Arusha Tribunal has lately become even more
difficult. The case of the suspected perpetrators
of genocide hired by defence team financed by
the Tribunal and the "laughing episode" has led
to boycott by the association for victims of
genocide, Ibuka.
Three month ago, the Government of Rwanda
imposed new travel regulations for witnesses to
the Tribunal. The Tribunal considers the new
regulations, which provides that witnesses must
declare their identity and reason for travel to
the authorities before they can be granted travel
documents, as "dangerous and strenuous to
protected witnesses". Rwanda maintains that the
new requirements are "regular procedures
required of any Rwandan applying for travel
documents". Witnesses leaving Rwanda to
testify in Arusha were previously not required to
go through the procedures.72
Prosecutor Carla Del Ponte, in her July 23, 2002
report to the Security Council, criticised Rwanda
for several other obstructions, like "failure to
provide government records" and "failure to co-
operate in investigations of violations of the
international law by the RPF in 1994".
72
Arusha, August 12th, 2002 (Foundation Hindorelle) "ICTR
is still cautious of Rwanda's co-operation, says
spokesperson". www.hirondelle.org
25
The Rwandan government quickly denied all
accusations. In a nine-page response to the
Prosecutor's charges, of 2 August 2002, the
government accused the Arusha Tribunal of
undergoing "a crisis of management,
incompetence and corruption of its own
making". It wished "to challenge the attempt by
the prosecutor to point to Rwanda as the cause
of the crisis and not to the Tribunal itself."
The government presented its own version of
the problems and their causes. The allegation
that the Government of Rwanda "failed to
provide government records" required by the
Office of the Prosecutor, useful to the
prosecution's case against those charged, is
characterised as "most absurd".
With regard to the co-operation on investigation
of alleged violations committed by RPF, the
government states "the Tribunal should try only
genocide cases and leave any possible
prosecution of RPA members to Rwandan
courts." This is explained by the fact that
Rwanda "has a functioning judicial system" and
that "the international accountability is
intended only in the cases of the absence of a
state that is able and willing to bring
perpetrators of human rights violations to
justice." According to the government "Rwanda
has already brought members of the RPF who
committed abuses to justice and sentencing,
which included capital punishment."73
Victor's Justice?Victor's Justice?
The Tribunal has also been criticised for
providing the victor's justice, because no one
from the RPF so far have been charged. The
Prosecutor has assured that they look at this
type of cases and that charges against RPF
members may appear during the Tribunal's
existence.
The Government of Rwanda strongly dislikes
this. It thinks that the investigation of RPF is
politically motivated and argues that Prosecutor
Carla Del Ponte herself has admitted that she is
73
"Reply of the Government of Rwanda to the report of
the Prosecutor of the International Criminal Tribunal for
Rwanda to the Security Council". New York, 26 July 2002.
www.rwanda1.com/
under pressure from certain states to indict RPF
members.
From a legal point of view, there is no doubt
about the obligation of Rwandan authorities to
co-operate fully with the Tribunal. The Security
Council has provided the Tribunal with a
mandate to overrule decisions by national
courts, and to take up cases irrespective of
whether there have been national investigation
and prosecution.
The Norwegian Helsinki Committee believes that
the investigation and possible indictments of
RPF members is based on reasonable suspicions
of violations of international humanitarian law,
as defined in mandate of the Arusha Tribunal.
Rwanda is under a legal obligation to co-operate
with the Arusha Tribunal also when it indicts
RPF members. Although RPF cannot be held
responsible for the genocide, Rwandan
authorities have themselves admitted that RPF
members have committed serious crimes. The
Arusha Tribunal prosecute individuals only, not
organisations, institutions or states. The
Rwandan authorities can therefore not use as an
excuse the fear that "RPF crimes are compared
with the genocide."
In the view of the Norwegian Helsinki
Committee, it is important for reconciliation and
future peace in Rwanda that the Tribunal
investigates accusations of serious crimes by
RPF members.
26
VIIIVIII ConclusionsConclusions
Prosecution on national and international level
of those responsible for grave abuses in the 1994
genocide is an important condition to achieve
peace and reconciliation in Rwanda. Much
depends, however, on how it is carried out and
how it is perceived.
Traditionally, states have chosen different
approaches to handle traumatic pasts. Usually it
has been a choice between amnesty, truth
commissions, legal settlements and
compensation, or combinations of these.
Rwanda has chosen legal settlements. There are
no amnesties, but sentences are reduced if you
confess and give information.
The legal settlement is first and foremost an
answer to the need for justice. In Rwanda, with
traumatic events still present in the memory of
the people, amnesty arrangements would be
destabilising. And to end the culture of impunity
and deter future atrocities, legal and quasi-legal
procedures to settle responsibilities and impose
punishments are necessary.
The Gacaca trials are a risky project that may
strike both ways. The process will re-expose
wounds and may cause conflicts to surface. But
it may also contribute to heal wounds and settle
conflicts. In contrast to the court-based national
and international legal settlement, the Gacaca
will include deep involvement by the local
population. The Gacaca process contains
elements of both justice and healing, which is
important in order to achieve reconciliation.
In contrast to the Arusha Tribunal, which seems
distant to many Rwandans, the Gacaca process
will mobilise the people and revitalise parts of
the Rwandan cultural heritage. Gacaca is a
unique judicial experiment, which may provide a
good example also for other African courtiers.
The Gacaca may be criticised for the lack of
sufficient legal protection of the accused, but in
the current situation it is hard to see realistic
alternatives. A precondition for the success of
Gacaca is that it is handled professionally and is
perceived as just by everyone who is involved.
The Norwegian Helsinki Committee recommends
the authorities of Rwanda to invite independent
international monitors to overlook the process.
International donors should on their part give
financial support to the authorities, to ensure
proper technical implementation of the process.
The Arusha Tribunal functions as an important
supplement to the national legal settlement. In
the short term the Tribunal may have limited
impact on the reconciliation processes.
However, in the long term the work of the
Tribunal has the potential of contributing to
consensus on a common historic understanding
of the genocide and to ending the culture of
impunity.
From an international perspective the Tribunal
gives effect to the principle that serious
international crimes cannot go unpunished. And
the Tribunal contributes to the development of
an international legal practice for the
enforcement of the international humanitarian
law.
It is however very unfortunate that the Tribunal
eight years after its establishment has passed
only nine judgements, even if important leaders
behind the genocide are among those indicted
and sentenced. It is a serious limitation of its
functioning that it does not have a mandate to
provide compensation to victims, something
Rwandan authorities wish to implement in the
national legal settlement, but cannot afford.
There are serious challenges to improve the
functioning of the Tribunal. Rwandan officials
seem to have lost respect for the Tribunal and in
some cases misuse the failures of the Tribunal
for their own benefit.
The Arusha Tribunal has a long way to go to
improve professionalism and efficiency. In
particular, the recruitment policy of the Tribunal
must be improved. It is simply too much at stake
to let business continue the way it has done so
far. The well functioning of the Tribunal is
important for many reasons. To improve the
credibility of the international community in the
27
region, to promote reconciliation and rebuilding
of Rwanda and as a deterrent of future plans of
mass atrocities to solve political conflicts. The
Tribunal is also important as a step towards
establishing a credible permanent international
system of fighting impunity.
Rwandans, including the organisation Ibuka that
represents genocide victims, has of course a
right to criticise the Tribunal. Yet co-operation is
in everyone's interest. Both the Government of
Rwanda and the Tribunal must contribute to
improve relations. Authorities in Rwanda must
improve their assistance to the Tribunal and
fulfil their legal obligations.
The people of Rwanda were betrayed in 1994.
Genocide and crimes against humanity (that is,
crimes against you and me) were allowed to
happen. The international community can never
make up for that injustice. It is important that
the Rwandans are not betrayed again. Rwanda
must therefore be assisted in its efforts to carry
out an extensive legal settlement, to strengthen
the reconciliation process within the country
and to improve its human rights conducts.
Reconciliation cannot be imposed from outside.
Yet the road to reconciliation can be less
strenuous if the international community helps
Rwanda with development aid, supports funds
that pay compensation to genocide victims and
help building a society respecting the dignity
and rights of everyone.