The Rwandan Genocide. Gacaca Tribunals and Due Process of Law

Table of Contents

List of Abbreviations

Introduction

Chapter One Overview of the concept
Genocide definition
Genocide, Crimes against humanity, War Crimes and Inhumane Treatment

Chapter Two Historical Background of Rwanda’s Genocide
How it all started.
Aftermath of the genocide

Chapter Three Gacaca Tribunals-Overview
Brief History of the Gacaca
Functions, purpose and jurisdiction of the tribunals
Structure of the Gacaca
Sanctions employed by the tribunals
Advantages and limitations of the tribunals

CHAPTER FOUR Gacaca Tribunals and Due Process of Law
The right of the genocidieries to be tried under a competent, impartial and independent tribunal
The Denial of the right of appeal
The Right to Counsel
Right of adequate time to defend oneself
Presumption of Innocence

Conclusion and Recommendation

Bibliography

List of Abbreviations

Abbildung in dieser Leseprobe nicht enthalten

Introduction

The atrocities that occurred in Rwanda have been the issue of the international community for some time now. Books have been written about the evils of the genocide that occurred there. Scholars have had their share of debates and arguments about the issue. Newspapers, government reports and human right organizations have made it their headlines in different events.

On April 6, 1994 the airplane carrying the then president of Rwanda was shot down nearing its depart point in Kigali airport. A few hours later, Hutu extremists started carrying out a well planned out genocide. In not more than a hundred days, more than 500,000 people were brutally murdered in Rwanda. Over 3 million fled away to neighboring countries fearing the worst. Over a period of four years (1990-1994) this number was estimated by the Rwandan government to exceed 1 million.

Many scholars attribute the mass genocide that occurred in Rwanda to the general international community specially Belgium and France. The United Nations in particular had the upper hand in repulsing the outcome of such atrocity but it chose to ignore the issue and consider it as a mere internal disturbance instead of a well planned out genocide.

Few months after the genocide the international community sent out its deepest regrets and condolence to fathers whose children were murdered in cold blood, to children whose mothers were raped in front of their eyes and to wives whose husbands were mutilated.

Upon cooperation with the Rwandan administration and other organizations the Gacaca tribunals were established as a means of reconciliation mechanism and due to the lack of prison facility to admit more than 100,000 genocidieries. There are around 12,000 tribunals which serve as a mechanism of speeding up the trials and establishing the truth about the genocide.

The rationale of Gacaca is based on the causal logic that truth leads to justice and justice leads to reconciliation. In this sense, their intended function is both punitive and restorative. Truths being a requirement of justice, the Gacaca tribunals lack a great deal of it. In addition many human rights activists and organizations argue that the tribunals lack the due process rights of the victims, lack of separation of the judges from the prosecutors and the absence of legal counsel to the accused.

The main aim of this paper is to deal with some of the core issues related with the accusation that Gacaca tribunals lack due process rights. Furthermore, the paper also looks at the distinct features that separate the tribunals from the normal court system. It also deals with the issue of reconciliation and cooperation the tribunals brought to the Rwandan society.

Lastly the paper seeks to look into some of the achievements the tribunals have in the international arena as well as within the Rwandan population. In addition reports by international organizations like the UN and human rights organizations are also included.

A point of remark here is that the paper is not an exhaustive research into the whole affair of the Rwandan genocide but seeks to look into the Gacaca tribunals in connection with due process rights of the victims as well as that of the perpetrators. It does not seek to address the issues that came into being in post-genocide Rwanda.

Chapter One Overview of the concept

Genocide definition

...Genocide does not mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objective of such a plan would be the disintegration of the political and social institutions of culture, language, national feelings. Religion and the economic existence of national groups and the destruction of the personal security, liberty, health, dignity and even the lives of the national group as an entity and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group¹.

The term genocide became part of the legal terminology only after World War II. It was derived from the Greek word genos, which translates to race or tribe, and the Latin cide, which translates to killing².

The Convention on the Prevention and Punishment of the Crime of Genocide affirms that genocide is a crime under international law and defines it as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.³

In addition to this, a report on the Rwandan genocide states that the act of genocide is an act intended to exterminate an entire group of individuals for the sake of being themselves alone. Furthermore, a summary agreement of the United Nations on human rights forbids propaganda advocating either war or hatred based on race, religion, national origin, or language⁴. It declares genocide itself, conspiracy or incitement to commit genocide, attempts to commit or complicity in the commission of genocide all to be illegal. Individuals are to be held responsible for these acts whether they were acting in their official capacities or as private individuals⁵.

Furthermore to what has been said above the general assembly in its resolution number 96(I) which it adopted on Dec. 11, 1946 states that:

…Genocide is the denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these groups…

The general assembly therefore affirms that genocide is a crime under international law which the civilized world condemns and for the commission of which principals and accomplices, whether private individuals, public officials or statesmen and whether the crime is committed on religious, racial, political or other grounds are punishable.⁶

What we can understand from the above statement of the general assembly is that genocide amounts to a crime heinous enough to be condemned by the international community. In addition, it also amounts to a crime punishable under international law and principles.

In addition to what has been said above legal scholars give out an international definition of genocide. They state that genocide does not have to start from killings but the mere planning and incitation of genocide also amounts to genocide. The broader picture here is that the conventions article when seen deeply includes acts like direct killing and actions causing death, inflicting trauma on members of the group through widespread torture, rape, sexual violence, forced or coerced use of drugs, and mutilation, The deliberate deprivation of resources needed for the group’s physical survival, such as clean water, food, clothing, shelter or medical services. Deprivation of the means to sustain life can be imposed through confiscation of harvests, blockade of foodstuffs, detention in camps, forcible relocation or expulsion into deserts⁷.

The crime of genocide has two basic elements: intent and action. The former shows purpose of the action conducted. Statements or orders can be shown to prove intent. But more precisely, it can be inferred from patterns of coordinated acts. Intent differs from motive in that whatever may be the motive for the crime (land expropriation, national security, territorial integrity, etc.), if the perpetrators commit acts intended to destroy a group, even part of a group, it is genocide⁸.

Therefore what we can conclude from the above definitions is that genocide, as defined by many rules and principles as well as legal experts, is an international crime resulting in atrocious and horrific outcomes.

Genocide, Crimes against humanity, War Crimes and Inhumane Treatment

Genocide has been regarded as an international crime since the Second World War and the Genocide Convention, 1948 was a critical step in that process. After World War II, through the relentless efforts of Ralph Lemkin, the concept of genocide as a separate international crime emerged.⁹

Article 2 of the Convention defines the crime of genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.¹⁰

Article 6(c) of the Nuremberg Charter included ‘crimes against humanity ’within the jurisdiction of the Tribunal and these were defined as ‘murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the law of the country where perpetrated’.¹¹

The Rome Statute establishes a non-exhaustive list of acts that can amount to crimes against humanity when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

a. Murder;
b. Extermination;
c. Enslavement;
d. Deportation or forcible transfer of population;
e. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
f. Torture;
g. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
h. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
i. Enforced disappearance of persons;
j. The crime of apartheid;
k. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.¹²

The basic textual difference between crimes against humanity and genocide is that crimes against humanity require that the acts prosecuted be part of a systematic or widespread attack against a civilian population. Genocide requires that the acts (which can only be the specific five listed) be committed against a racial, religious, national or ethnic group and be done with the specific intent of destroying the group in whole or in part ‘‘as such.” ¹³

The genocidal acts need not be widespread and directed as a systematic campaign against civilians, though the Rome statute states the reverse in defining elements of crime¹⁴. On the other hand, crimes against humanity as expressed in a judgment given by the ICTY are crimes of a special nature to which a greater degree of moral turpitude attaches than to an ordinary crime. In addition the court wrote that “Because of their heinousness and magnitude they (crimes against humanity) constitute an egregious attack on human dignity, on the very notion of humaneness¹⁵. Apart from the above said differences, the statute of the international tribunal for the former Yugoslavia under articles 4 and five clearly state the difference between the two crimes¹⁶.

War crimes are essentially serious violations of the rules of customary and treaty law concerning international humanitarian law, otherwise known as the law governing armed conflicts. Essentially, war crimes law applies to individuals and international humanitarian law to states.¹⁷

The ICC statute lists the conducts constituting war crimes. Among them, those constituting “grave breaches” to the 1949 Geneva Conventions entail the obligation of all States to prosecute them. These acts are:

(i) Willful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Willfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
(vi) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.¹⁸

Many of the same acts may constitute both war crimes and crimes against humanity, but what is distinctive about the latter is that they do not need to take place during an armed conflict. However, to constitute crimes against humanity the acts in question have to be committed as part of a widespread or systematic activity, and to be committed against any civilian population, thus any reference to nationality is irrelevant.¹⁹

Chapter Two Historical Background of Rwanda’s Genocide

How it all started.

..The second was a woman who had been beaten and sexually mutilated, and who lived in terror because her attackers, who had been and continued to be her neighbors, still passed freely by her home every day. The third was a woman who was imprisoned, lashed to a bed for several months, and gang-raped continuously. Her final words to us were the stuff of nightmares, vivid, awful, and impossible ever to forget. She said, with a chilling matter-of-factness: "For the rest of my life, whether I am eating or sleeping or working, I shall never get the smell of semen out of my nostrils."²⁰

The above were words of victims of the unforgettable Rwandan genocide. This was just an example but if research was to be conducted on it, there would be about a couple million testimonies.

Finding out a balancing ground as to how the killings started is a debatable issue among scholars as well as both the ethnic groups that were involved in the killing (Hutus and Tutsis). Both the groups existed for centuries together speaking the same language, sharing the same religious beliefs and intermarrying one another.²¹ They had a history of less confrontational hostilities.²² The Hutus had developed as an agricultural people, while the Tutsi were predominantly cattle herders. Yet the two groups had none of the usual differentiating characteristics that are said to separate ethnic groups. An estimation made by one historian states that out of 25 percent of the Rwandan population has both Hutu and Tutsi great- grand parents. If this was to be further extended the percentage would grow to 50 percent. ²³

But soon enough, the whole tolerance and brotherhood became a wedge between the two. The European colonizers, more specifically Germany and Belgium, played a great role in laying the foundation for the extermination and killings of people in no less than 100 days. It was the practice of colonial administrators to select a group to be privileged and educated 'intermediaries' between governor and governed. The Belgians chose the Tutsis: landowners, tall, and to European eyes the more aristocratic in appearance.²⁴ This brought about a racial theory called “Hamitic hypothesis”. It stated that the Tutsi came from some Caucasoid race and had Christian origins.²⁵ This came to be an instrument powerful enough to create discrimination among Hutus and Tutsis. In addition most of the world population came to acknowledge this painstakingly untrue issue and started considering the Tutsi as more intelligent, more reliable, harder working, and more like whites than the “Bantu” Hutu majority.²⁶ In addition to this, children from Hutu background do not have enough access to education as that of a fellow Tutsi. Identity cards were issued to people bearing the sign “Hutu” or “Tutsi”. This was later on used to distinguish the exterminable and the living. More to add to the fuel, the missionaries that came to Rwanda during that time also twisted the Hutus brains so that they started thinking that they were a cursed soul. Since the Catholic Church was in control of most of the schooling activity, it created a new generation filled with what some scholars today call “ethno genesis”. In response to this, the Hutus chose an armed struggle and in 1956 a rebellion broke out. Three years later in 1959, the Hutus seized power and started tormenting the lives of their Tutsi brethren. Some Tutsis retreated to exile to neighboring countries and they formed a patriotic Rwandans front called RPF²⁷. After their first delight in gaining power - and, in 1962, independence for Rwanda - a politically inexperienced Hutu government began to face internal conflicts as well. Tensions grew between communities and provincial factions. Tutsi resistance was continually nurtured by repressive measures against them. In 1990 RPF rebels seized the moment and attacked: civil war began. A ceasefire was made in 1993, followed by the intervention of the UN in negotiating a new multi-party constitution. This caused a major problem because Hutu extremists and leaders opposed any Tutsi involvement in the government²⁸.

With these tensions going on, another major and probably the trigger to the whole genocide occurred on April 6, 1994. A plane carrying Rwanda’s president was shot down from a ground to air strike when it was about to reach its destination in Rwanda. Shortly afterwards, Hutus started exterminating Tutsis in the surrounding areas. From that point on, the overwhelming number of Tutsi killed in Rwanda died in large-scale massacres. Thousands sought sanctuary in public sites such as churches, schools, hospitals, or offices. Others were ordered by Hutu administrators to assemble in large public areas. In both cases, this left the Tutsi even more vulnerable to Hutu soldiers and civilian forces, which were ordered to kill en masse. For three weeks in April, the party militias, the Presidential Guards, interahamwe, and FAR soldiers killed many thousands of Tutsi every day²⁹. A little more than 100 days later at least 800,000 women, children and men lay dead on the grounds of Rwanda. Thousands more were raped, maimed, tortured for life. In addition to this, nearly a million refugees exiled to neighboring countries like Zaire and Uganda.

[...]

¹ Raphael Lemkin, Axis Rule in Occupied Europe (1994), ILSA journal of international and comparative law, vol 7

² Arthus Jay Klinghoffer, the international Dimensions of genocide in Rwanda, New York University press, 1998

³ Convention on the Prevention and Punishment of the Crime of Genocide, entered into force 12 Jan., 1951 article I and II

⁴ Summary agreement of the United Nations on human rights, http://www.hrweb.org/legal/undocs.html (accessed 10 December, 2010)

⁵ Ibid, http://www.answerbag.com/q_view/31747 (accessed 10 December, 2010)

⁶ Resolution 96(I) adopted by the general assembly, the crime of genocide, Dec.11, 1946

⁷ Prevent genocide internationally, legal definition of genocide, http://www.preventgenocide.org/genocide/officialtext-printerfriendly.htm (accessed 10 December, 2010)

⁸ Ibid

⁹ Genocide and crimes against humanity, Patricia M. Wald, Judge ICTY, Washington 1999-2001

¹⁰ Convention on the prevention and punishment of the crime of Genocide, 78 U.N.T.S.277, entered into force 12 Jan., 1951, article 2

¹¹ Infra no. 15

¹² Rome Statute of the International Criminal Court, 17 July 1998, article 7 see also Article 5 of the Statute of the ICTY 25 May 1993 and Article 3 of the Statute of the ICTR 8 November 1994

¹³ Ibid

¹⁴ Supra No.12, article 6

¹⁵ ICTY case numbers IT-94-1-A Para. 271 (July 15, 1999) and Case No. IT-96-22-A (Oct. 7, 1997)

¹⁶ Statute of the ICTY, adopted 25 May 1993, art.4 and art.5

¹⁷ International Law, Malcolm Shaw, sixth edition, Cambridge University Press, 2008

¹⁸ Rome statute of the International Criminal Court 2187 U.N.T.S. 90, entered into force July 1, 2002, article 8

¹⁹ Supra No.17

²⁰ International panel of eminent personalities, Rwanda: the preventable genocide, excerpt, page 4

²¹ Ibid

²² Peace pledge Union information, Talking about genocide, http://www.ppu.org.uk/genocide/g_rwanda.html (accessed 10 December, 2010)

²³ Supra 20

²⁴ Supra 22

²⁵ Ibid

²⁶ Supra No.20

²⁷ Supra No.20 cum. Supra No.26

²⁸ Supra No.22

²⁹ Supra 14, chapter 14