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As a response to the results of our recent questionnaire, IRIN is introducing a new series of reports - IRIN "Special Features" - on topical issues in the region. This is the first in the series. Some of these features will be commissioned by IRIN and some will be undertaken by IRIN staff, but in either case, their contents reflect the opinions of the author, and cannot be taken to reflect the views of the United Nations.
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.
1. 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.
2. Available from IRIN on request.
3. Available from IRIN on request.
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Date: Fri, 21 Feb 1997 18:38:46 +0300 From: UN DHA IRIN - Great Lakes <firstname.lastname@example.org> Subject: Rwanda: IRIN Special Feature on Rwandan Trials 19 Feb 97 97.2.19 Message-ID: <Pine.LNX.3.91.970221183122.160Eemail@example.com>
Editor: Dr. Ali B. Ali-Dinar, Ph.D
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