|
Get AfricaFocus Bulletin by e-mail!
Print this page
|
Note: This document is from the archive of the Africa Policy E-Journal, published
by the Africa Policy Information Center (APIC) from 1995 to 2001 and by Africa Action
from 2001 to 2003. APIC was merged into Africa Action in 2001. Please note that many outdated links in this archived
document may not work.
|
Rwanda: Recent Documents, 1
Rwanda: Recent Documents, 1
Date distributed (ymd): 970307
Document reposted by APIC
U N I T E D N A T I O N S Department of Humanitarian Affairs Integrated
Regional Information Network, Tel: +254 2 622147 Fax: +254 2 622129 E-mail:
irin@dha.unon.org
[Via the UN DHA Integrated Regional Information Network. The material
contained in this communication may not necessarily reflect the views of
the United Nations or its agencies. If you re-print, copy, archive or re-post
this item, please retain this credit and disclaimer.]
IRIN SPECIAL FEATURE 1/97
THE RWANDAN GENOCIDE TRIALS:
BUILDING PEACE THROUGH JUSTICE
19 February 1997
"The exceptional situation in the country requires the adoption
of specially adapted measures to satisfy the need for justice of the people
of Rwanda." These words, encapsulated in Rwanda's newly promulgated
Organic Law (or Genocide Law), illustrate the necessity to show Rwandans
in particular, and the world in general, that the architects of the April-July
1994 genocide cannot go unpunished. Two and half years after the mass slaughter
in which at least 500,000 Tutsis and moderate Hutus died, the beginning
of 1997 finally witnessed the start of trials of those suspected to have
taken part in the Rwandan genocide.
Parallel trials are underway, both in Rwanda and in Arusha, Tanzania,
where the UN International Criminal Tribunal for Rwanda (ICTR) is based.
The scope and mandate of the two systems vary enormously. The ICTR, with
a budget of $36 million for 1996, has indicted 21 people. Thirteen are
in detention (11 in Arusha, one in Switzerland and one in the USA), the
others are still at large. Rwanda's jails and detention centres, meanwhile,
are crammed with some 90,000 detainees, of whom about 2,000 are on a preliminary
official list of "Category 1" accused as provided for in the
Organic Law (Footnote 1). If found guilty, these defendants face the death
penalty.
Rwanda's Directeur de Cabinet in the Ministry of Justice, Gerald Gahima,
points out that his country's justice system had to be started from scratch
after the war. According to some estimates, the sheer number of detainees
in Rwanda means it would theoretically take about 200 years to judge them
all. Rwanda has indicated that prisoners on the Category 1 list will go
to trial. It is hoped many others will come forward under a "Confession
and Guilty Plea" procedure contained in the Organic Law, according
to which self-confession could result in reduced penalties.
But although Category 1 defendants have the right to confess and plead
guilty, the death penalty to which they are liable is mandatory and must
be pronounced by the court. The UN Human Rights Field Operation in Rwanda
(HRFOR) says the "Confession and Guilty Plea" measure marks a
radical innovation in criminal procedure as hitherto followed in Rwanda.
A defendant who wishes to plead guilty must describe in detail all the
offences committed, the date, time and scene of each criminal act and the
names of victims and witnesses if known. S/he must also furnish any further
information which may aid the prosecution.
Time will tell whether this procedure is effective and workable. Rwandan
officials have gone to South Africa to look into the workings of the Truth
and Reconciliation Commission there and it is likely that once the trials
have been underway for a length of time, a similar mechanism will be set
up in Kigali. The South African Truth Commission is empowered to grant
reparations to victims of atrocities as well as an amnesty or indemnity
from prosecution for perpetrators who confess their crimes. In the meantime,
Rwanda appears to be steaming ahead with its trials, which began on 27
December 1996. As of 16 February, 12 genocide cases had been tried, with
11 Category One defendants given death sentences and one Catergory Two
defendant given life imprisonment.
Rwanda, fiercely critical of the ICTR, is bitter that the international
court does not have a mandate to impose the death penalty, yet it is judging
some of the alleged ringleaders of the genocide. "It would be better
for the ICTR to disband completely and the money used for rehabilitation
schemes such as helping widows and orphans in our country," Gahima
believes. He explains the rapidity of the trials by the fact that Rwanda's
legal system is "different". Witnesses are not cross-examined,
having made their statement in writing beforehand.
Gahima also rejects international criticism that defendants have no
time to prepare their cases nor access to legal representation. He says
Rwanda has no resources for providing defence lawyers but if foreign groups
want to become involved they can operate in complete freedom. "Why
should Rwanda delay its trials just because there are no defence lawyers?"
he says. "This means that thousands of people would go unpunished
for the crimes they have committed and it would send the wrong signal to
the people." For the same reason, Rwanda is unable to provide witness
protection, an issue which human rights monitors say must be resolved following
numerous instances of murder and attacks on vulnerable groups such as genocide
survivors and judicial personnel. Many witnesses have refused to testify
out of fear or have been forced to move for their own security.
After the first cases in Kibungo, Kigali and Byumba last year in which
the first two (unrepresented) defendants were sentenced to death (there
is a 15-day appeal procedure), Rwanda seems to have to taken some of the
criticism on board to a certain extent and foreign lawyers have now been
invited to represent the accused. A case in point is that of one of the
most notorious defendants undergoing trial in Kigali. Froduald Karamira,
a former politician and businessman, was arrested at Addis Ababa airport
and extradited to Rwanda last June while trying to flee during a stopover
of a flight bringing him back from India. Allegedly one of the chief instigators
of the genocide in the Kigali area, he was represented by a Beninois lawyer
provided by the independent jurists' association, Avocats Sans Frontieres.
The three-day trial, which had been adjourned and resumed on 29 January
1997 to a packed courtroom, was highly emotionally charged. Despite a pronouncement
by the judge that displays of jeering, clapping or laughing were forbidden,
this went unchecked by the court. The trial itself was surprising with
the defence lawyer finally announcing he was delivering his client to the
will of the Rwandan people, and that Karamira should ask their forgiveness.
He asked for Karamira to be spared the death penalty, while the defendant
himself told the court that if his death would help bring about national
reconciliation then so be it. Karamira was convicted and sentenced to death
on February 14 and given 15 days to appeal.
Coupled with the emotion of the trials, are the sheer physical restrictions
of the courtrooms. Rwanda says the courts of first instance, where the
genocide trials are being heard, have been sufficiently improved to enable
the cases to go ahead. But the fact remains that the courtrooms were never
intended to deal with cases of this magnitude and they remain small, cramped
and uncomfortable, lacking in ventilation and amenities. Seating is provided
by low benches, occupied for the most part by lawyers, journalists, civil
damages claimants, human rights monitors and diplomatic representatives.
Any standing room is taken up by members of the public. Often, the trials
continue throughout the day without a break.
The trials in Rwanda beg the question of whether fair justice can be
meted out by a court essentially made up of lawyers and magistrates (predominantly
of one ethnic group) without recourse to a jury. This is an issue of grave
concern to HRFOR which is closely monitoring the progress of justice in
Rwanda. While welcoming the start of the trials, HRFOR expressed anxiety
over the lack of legal representation both for defendants and civil claimants
who may not know the extent of their rights, as well as other fair trial
guarantees. HRFOR has also pointed out that Rwanda is a signatory to the
International Covenant on Civil and Political Rights (ICCPR) and was therefore
bound by article 14 which entitles a defendant "to have adequate time
and facilities for the preparation of his defence and to communicate with
counsel of his own choosing . . . " HRFOR admits it has little influence
over the course of events. An HRFOR official stressed it was up to the
international community, especially donor countries, to bring pressure
to bear on the Rwandan government.
A government response is still awaited to a project proposal put forward
by Rwandan and foreign lawyers concerning legal representation for civil
claimants and defendants, in which it is stressed that counsel must be
available to instruct them of possible avenues of appeal. To this end,
the lawyers suggested creating a Legal Representation Agency as a central
body to harness resources aimed at providing legal counsel, acting independently
of the government. Foreign lawyers would be recruited to train Rwandan
legal practitioners, drawn mainly from law graduates and students. The
proposal, at an estimated cost of $1,744,500, pointed out that any attempts
to provide counsel for defendants must be accompanied by a public awareness
campaign to sensitise people to the right to defence and representation.
Rwanda itself instituted screening commissions known as Commissions
de Triage, favoured in theory by human rights monitors. The commissions
were an attempt to avoid summary justice by examining the cases of detainees
at prefectural and commune level. Although the inspector of judicial police,
IPJ, is responsible for judicial investigations, the government was forced
to revise the composition of the commissions to include the prosecutor
as well as representatives of the RPA, the gendarmerie, and intelligence
services. This too backfired, however, as there was rarely a quorum and
decisions were pronounced invalid. Released suspects were rearrested. The
commissions were initially scrapped, but have just been given another lease
of life by the UN Development Programme in Kigali which is helping to relaunch
them as "Commissions de Triage Specialisees". UNDP was previously
involved in providing support to the commissions in the form of equipment,
vehicles and computers.
The ICTR, established by Security Council Resolution 955 (Footnote 2)
on 8 November 1994, has come under strong international criticism for being
slow and ineffective. In a press briefing last September, outgoing Prosecutor,
Judge Richard Goldstone, pointed out that the main problems had been starting
up, lack of secure funding and bureaucratic tussles. Recruitment had to
be carried out through the United Nations, he said, and qualified staff
were mostly unwilling to work in Arusha and in Kigali, where the Prosecutor's
Office is situated.
The Tribunal is still under-staffed, resources are scant (the press
room has just one telephone) and Arusha is an unlikely venue for an international
tribunal because of poor communications and complicated logistics. However,
Judge Goldstone stressed that the Security Council had taken an important
step from the perspective of international humanitarian law in setting
up the Tribunal. He commended the Council for making "the very brave
link" between restoring peace and restoring justice. As a judicial
institution, the Tribunal is independent of any nation or group, including
the Security Council.
Despite many setbacks, and a highly critical recent UN report on its
management, the ICTR - whose six judges currently have a four year term
from June 1995 - has an important role to play in enforcing international
law and rendering fair justice. Its Statute guarantees that defendants
are innocent until proven guilty. They have the right to legal assistance
and the right against self-incrimination. Individuals cannot be tried in
absentia, neither can they be sentenced to death. The Tribunal believes
it is of the utmost importance to demonstrate equitable treatment to both
the defence and the prosecution.
Resolution 978 (Footnote 3) of 27 February 1995 calls on UN member states
to arrest and detain suspects on their territory and the Tribunal is mandated
to take precedence over national courts, which has led to accusations by
Rwanda of invasion of its national sovereignty. The Rwandan government
has also criticised the Tribunal for not making its own indictments, alleging
these have been carried out at the request of other countries. A statement
by Avocats Sans Frontieres called for extending the ICTR mandate to include
the possibility of ruling on claims for damages sought by genocide victims.
The statement voiced concern that the mandate was restricted to judging
the events which actually took place and not the widely-supported theory
that the genocide had been planned long before the massacres occurred.
The thirst for vengeance in Rwanda is understandable, as is the feeling
of frustration that those considered to be the main inciters of the massacres
will never die for their crimes. It will be difficult for genocide survivors
to reconcile this with statements that impunity must be eradicated, when
they feel that at the very worst these "big fish" will get life
imprisonment. Because of this, upholding the credibility of the ICTR to
those most involved - the Rwandans - will be very difficult. As the trial
of the first defendant Jean-Paul Akayesu, the former mayor of Taba commune
in Gitarama prefecture, resumed on 9 January this year, Rwanda had already
convicted two people to death. The Akayesu trial is expected to last some
eight weeks during which 31 witnesses, who can be cross-examined, are set
to give evidence.
With the appearance of witnesses for the first time in Arusha, the importance
of security has increased several-fold. To this effect, a witness protection
unit has been established within the ICTR charged with upholding the security
measures agreed by the court. These include using pseudonyms when referring
to witnesses to conceal their identity, forbidding the filming, sketching
or photographing of witnesses while on the premises of the ICTR and excluding
any identifying data from public court records. The issue of protecting
witnesses is very sensitive and ICTR officials are not keen to elaborate
on the measures.
A growing number of attacks and murders in Taba commune as the date
of the Akayesu trial approached, illustrates the crucial need for witness
protection. According to the local authorities, in one murder incident,
the victim, a shopkeeper, had given testimony to local judicial officials
and the ICTR. Other potential witnesses have been intimidated to the point
that they are no longer willing to give evidence.
A major concern now is that the mass return of refugees from Tanzania
and Zaire, including ex-FAR/Interahamwe infiltrators and genocide suspects,
may undermine attempts to redress the legal system. In 1996, an estimated
227 genocide survivors were killed, most of them in the volatile western
prefectures bordering Zaire. Human rights monitors found that most of those
responsible for the killings were ex-FAR/Interahamwe or other insurgents
opposed to the government. Following the November-December arrival of over
a million refugees from Zaire and Tanzania, HRFOR received reports that
returnees were implicated in such attacks. Rwanda's emergent legal process
could be thrown into jeopardy if killings of genocide survivors spiral
out of control.
Rwanda recognises, however, that it cannot continue throwing people
into jail withourb trial. Since the mass return there has been an inevitable
increase in arrests: 5,000 according to the Rwandan government, 7,000 according
to HRFOR. Many people have turned themselves in for their own protection.
Additionally, a large number of arrests were arbitrarily carried out when
returnees arrived in their communes, HRFOR said. Prison conditions have
been described as appalling and HRFOR says it has noticed a deterioration
in the ill-treatment of detainees. While also expressing outrage over the
extra-judicial executions of four genocide suspects by members of the RPA
in December, HRFOR has welcomed the trial of an RPA officer implicated
in the April 1995 Kibeho camp killings, as a step in the right direction
for Rwandan justice. Lt.Col Fred Ibingira, who commanded troops sent in
to close the camp, was found guilty of failing to protect the lives of
civilians. The Military Court sentenced him to 18 month's imprisonment
but given the time spent in pre-trial custody he was considered to have
served his term.
The elimination of impunity is essential to ensure that the cycle of
genocide is broken in Rwanda. National reconciliation will only be brought
about when justice is seen to be done. In this context, the ongoing trials
in Arusha and Rwanda must be supported. Rwanda has to find a balance between
satisfying the demands of its people for speedy justice and demonstrating
fair procedures to the outside world. The ICTR must not be allowed to procrastinate.
While doubting that the main architects of the genocide feel any remorse
for their actions, many Tutsis accept that they have to live side by side
with their Hutu neighbours again, despite feelings of suspicion and mistrust.
The tentative steps towards national reconciliation and rehabilitation
must be respected and sensitively handled. Also, how long will it take
for Rwandans to feel vindicated while many of the truly "big fish"
are still at large, escaping justice? The Rwandan genocide was one of the
worst instances of crimes against humanity this century and the international
community has a duty in helping bring the perpetrators to justice and maintaining
assistance and observation of the trials, whose success is vital if peace
and stability is ever to return to the Great Lakes region.
Footnotes:
- The Organic Law of 30 August 1996 was promulgated to close the gap
in Rwandan legislation which had no specific provision for punishing genocide
and crimes against humanity. The law is limited to events that occurred
between 1 October 1990 and 31 December 1994. People accused of genocide
are classified according to four categories: Category 1 is sub- divided
into four groups comprising a) the planners, organisers, instigators, supervisors
and leaders of genocide or a crime against humanity b) people in positions
of authority at national, prefectural, communal, sector or cellule level,
or in a political party, the army, religious organisations or in a militia
who perpetrated or fostered such crimes c) notorious murderers who by virtue
of the zeal or excessive malice with which they committed atrocities, distinguished
themselves in their areas of residence or wherever they passed d) persons
who committed acts of sexual torture. Category 2 is made up of persons
whose criminal acts or whose acts of criminal participation place them
among perpetrators, conspirators or accomplices of intentional homicide
or serious assault against person, causing his/her death. Category 3 is
classified as people whose criminal acts or acts of criminal participation
make them guilty of other serious assaults against the person. Category
4 comprises people who committed offences against property.
- Available from IRIN on request.
- Available from IRIN on request.
This material is being reposted for wider distribution by the Africa
Policy Information Center (APIC), the educational affiliate of the Washington
Office on Africa. APIC's primary objective is to widen the policy debate
in the United States around African issues and the U.S. role in Africa,
by concentrating on providing accessible policy-relevant information and
analysis usable by a wide range of groups and individuals.
|
