Twenty Years After the Genocide: Accountability and its Effects on the Rwandan Rule of Law

“It was the end of the first day of a hundred-day civil war and a genocide that would engulf all of us in unimaginable carnage”, Lt. Gen. Dallaire writes in Shake Hands with the Devil. Today, 7 April 2014, marks the twentieth anniversary of the beginning of the Rwandan genocide.

Ever since, whether at the national or international level, and both in and outside of Rwanda itself, initiatives have been launched to hold the perpetrators of the genocide to account. All these activities were at least also intended to foster a rule of law culture in Rwanda. After two decades, it is important to take stock of these measures aimed at nurturing accountability to the law as one of the most important rule of law principles, for the most and least powerful persons alike and in Rwanda and beyond.

At the international level, the United Nations International Criminal Tribunal for Rwanda (ICTR), which had jurisdiction over the crimes committed in Rwanda and neighboring countries from 1 January to 31 December 1994, contributed to establishing a historical record of genocide, for instance through its Akayesu[1] case.

This case also entails an important legal contribution, because rape was held a crime against humanity. The ICTR explained sexual violence can rise to the level of genocide if committed with the requisite intent of destroying a racial, ethnic or religious group – a “first” at the international level. The ICTR also dealt with the role of the media in encouraging genocide. Similarly, through the exercise of universal jurisdiction, foreign courts, mainly in Belgium, France and Canada, have contributed to factual findings about the Rwandan genocide.

On 14 March 2014, the French criminal court convicted Mr Pascal Simbikangwa of genocide and complicity in crimes against humanity and, in 2015, Belgium is expected to begin trials against seven genocide suspects. As the ICTR’s Registrar Mr. Adama Dieng said, justice “has gone global”, by not only extending human rights protection to individuals but also promoting accountability for crimes that “strike at the very heart of our common humanity – genocide, crimes against humanity, war crimes, torture, etcetera”.

In Rwanda, between 2005 and 2012, gacaca courts, made up of non-professional judges, have pursued an estimated two million accused of crimes linked to the genocide. While gacaca courts tried low and middle-level perpetrators of genocide, national courts were supposed to adjudicate the “planners”. To mediate conflicts,abunzi, a hybrid form of justice, combined traditional with modern methods of resolution.

The first Rwandan Reconciliation barometer, conducted sixteen years after the genocide, reported “very high confidence in gacaca as a transitional justice mechanism“, as also confirmed in international studies. However, further research will have to be done into the commitment to the rule of law in Rwanda by an exploration of theactual conduct of justice-seekers in all three forums. Another remaining challenge is the 2010 Barometer’s recommendation of pro-poor initiatives to counter the lasting effects of inequality between poor and rich as a remaining source of conflict.

Now the Canadian Supreme Court has extradited Mr Léon Mugesera, a relatively new test will be his trial before Kigali’s High Court for allegations of genocide by his speech on 22 November 1992. Finally, it remains to be seen what Rwanda will be able to do about the several nocidaires who arestill at large.

Given the closing of the ICTR, it is important to advance its lessons and its outreach program with the capacity-building legacy, including workshops, training and the dissemination of public information. It is hoped that both the Arusha and Hague branches of the United Nations Mechanism for International Criminal Tribunals will apply the ICTR’s lessons learned such as on prosecution of sexual violence.

Amongst the important tasks are the recognition of all Rwandan rape victims and the 20.000 children conceived through rape. Moreover, solutions will have to be found for relocation of acquitted defendants (also a recurring problem for the ICC, as the interim release of Mr Bemba Gombo or acquittal of Mr Ngudjolo Chui demonstrate). In time, we will also be able to assess the consequences of Security Council Resolution 1503 of 2003, which up to today resulted in ten cases being transferred to national jurisdictions.

With regard to the effect of all these accountability measures for Rwanda’s rule of law, two worrying aspects cannot be left unmentioned. First, the 2008 genocide-ideology statute has been used to convict political opponents such as Mrs Victoire Ingabire, president of the FDU-Inkingi party opposing President Kagame’s current ruling political party of Rwanda, RPF, in 2012.

In this same year, Mr Deogratias Mushayidi, president of the opposing PDP party, has been sentenced to life for similar charges. It is true that the 2013 revisions include a more precise definition of the offense and the requirement to demonstrate intent behind the crime, thereby reducing the scope for abusive prosecutions. Potential sentences were also lowered from 25 to 9 years. However, it remains to be seen how the end of President Kagame’s term in office in 2017 will affect treatment of (future) political opponents.

Second, any evaluation of the rule of law in Rwanda has to take into consideration the regional context. The M23, which President Kagame allegedly supported and which surrendered on 5 November 2013, allegedly committed many war crimes, including summary executions, rapes and forced recruitment of children. On March 18, the M23’s supposed leader Mr Bosco Ntaganda turned himself in to the US embassy in Kigali, Rwanda. He was flown to The Hague, where he now faces charges of war crimes and crimes against humanity at the ICC.

Earlier ICC cases have led to the conviction of Mr Germaine Katanga, an acquittal of his co-accused Mr Ngudjolo Chui and an outstanding warrant for Mr Sylvestre Mudacumura. The DRC is now reported to be introducing accountability measures for international crimes. Hopefully, this action will, in turn, have a positive spill-over effect into Rwanda and other neighboring countries as well as prompting the international community into preventing of genocide in the region.

As Lt. Gen. Dallaire stresses in his own reflections on the current situation, there is no lack of warning signs, such as the high number of child soldiers especially in South Sudan and the Central African Republic. The challenge is for such signals to be perceived and translated into timely action.

The Hague Institute continues to be committed to furthering the rule of law in Rwanda and prevention of genocide and will for that reason organize a high-level conference on the 20th anniversary of the genocide in June.

[1] Overall since its establishment in 1994 the ICTR, product of a Security Council resolution, completed 75 cases, resulting in 47 convictions, 12 acquitted and 16 cases are pending appeal.

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