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Max Planck Encyclopedia of Public International Law [MPEPIL]


Roland Adjovi, Nandor Knust

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 25 June 2019

Propaganda for war — Genocide — Internally displaced persons — Countermeasures — Peace keeping — Reprisals — Weapons

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Introduction

The Republic of Rwanda (‘Rwanda’) is a small country in the Great Lakes Region of east-central Africa (Great Lakes Region, Africa). Rwanda shares borders with Burundi to the south, the Democratic Republic of the Congo (Congo, Democratic Republic of the) to the west, Uganda to the north, and Tanzania to the east. With its 9 million inhabitants Rwanda has the densest population in all of Africa. Rwanda was admitted as a member of the Commonwealth of Nations in 2009.

Rwanda was shattered by a genocide in 1994, which resulted in the death of over 800,000 Tutsi and moderate Hutu.

B.  Historical Development from an International Law Perspective

1.  Pre-Colonial Phase

The aboriginal Pygmy inhabitants, the ‘Twa’, have probably lived in Rwanda for 35,000 years. According to the statements of the first European colonists, the ‘Hutu’ arrived in Rwanda from the Congo basin and the ‘Tutsi’ population arrived from Ethiopia.

Prior to colonization, Rwanda was a kingdom under centralized supervision, headed by the Mwami (the king). The Rwandans shared a common culture, religion, and language, but were divided into social groups depending on their level of wealth or on their profession (cattle or agriculture). Usually, the (Ba-)Tutsi were cattle breeding, the (Ba-) Hutu were agricultural, while the (Ba-)Twa were specialized in pottery production. There was no fixed membership of one of the social groups. The Tutsi who lost their cattle became Hutu and similarly the Hutu who obtained cattle developed into Tutsi. Pre-colonial Rwanda seemed to be a homogenous society, lacking social tensions between the different social groups.

2.  Colonial Phase

The start of the colonial phase of Rwanda can be seen in the Berlin West Africa Conference (1884–85) (see also Colonialism). At the Berlin West Africa Conference, Rwanda, as well as other parts of Africa, was given to Germany. In 1884–85, after signing treaties with chiefs in the Tanganyika region, Germany claimed Tanganyika, Rwanda, and Burundi as its own territory (for representative treaties, see K Büttner, Die Anfänge der Deutschen Kolonialpolitik in Ostafrika [Akadamie-Verlag Berlin 1959] 120–21).

One hundred years before the Rwandan genocide peaked, the direct European involvement in Rwanda began. On 4 May 1894 the German Count Gustav Adolf von Götzen met the Mwami Rwabugiri, the Rwandan king, for the first time. At the beginning of the German colonization of Rwanda, the Germans did not change the existing power structures of the kingdom. The Germans used the popular colonial formula of ‘divide and rule’ to establish a functional co-operation between the ruling minority and the foreign colonial power. In 1899 German colonists started to place colonial advisers at the local courts to guarantee a judicial system friendly to colonial power.

In 1910 Belgium, the United Kingdom, and Germany met at the European Convention of Brussels. They fixed the borders of Uganda, the Congo, and German East Africa which included Tanganyika and Ruanda-Urundi. The conference ended in an agreement on Sabinio as the tripoint of the territories of the three States (see Agreement between Great Britain and Belgium Settling the Boundary between Uganda and the Congo (1914) 107 Part I BSP 348; Agreement between Great Britain and Germany Settling the Boundary between Uganda and German East Africa (1914) 107 Part I BSP 394; Convention between Belgium and Germany Settling the Boundary between German East Africa and the Belgian Colony of the Congo (1909–10) 103 BSP 372; Protocol between Great Britain and Belgium Describing the Frontier between the Uganda Protectorate and the Belgian Colony of the Congo (1914) 107 Part I BSP 349; Agreement between Great Britain and Belgium respecting the Boundary between the British and Belgian Territories in East Africa, from Mount Sabinio to the Congo-Nile Watershed (1916) 110 BSP 487). The final determination of the boundary between Sabinio and Lubirizi of the Muvogero was made in the Protocol between Great Britain and Germany Describing the Frontier between the Uganda Protectorate and German East Africa with a Memorandum ((1914) 107 Part I BSP 397).

In 1916, during World War I, Belgian forces from the Congo advanced into Germany’s East African colonies. After Germany lost the war, Belgium accepted a mandate from the League of Nations to govern Ruanda-Urundi along with the Congo, while the United Kingdom agreed to govern Tanganyika and the other German African colonies. Ruanda-Urundi, which was two separate German protectorates before World War I, became a League of Nations Class B mandate (see Mandates; Protectorates and Protected States). Art. 22 Covenant of the League of Nations ([1919] 225 CTS 195) stated that ‘the Mandatory must be responsible for the administration of the territory under conditions which will guarantee freedom of conscience and religion’. Therefore Belgium had to ensure the development of the national administration, as well as providing development and basic rights such as the freedom of speech and freedom of religion. A Belgian colonial report declared that the Belgian colonial power should not establish its own colonial administration; instead it should use the existing institutions. The report clarified that the Belgian authorities had the obligation to support the (Ba-)Hutu against injustice which they often faced, but nevertheless that the authorities needed the (Ba-)Tutsi to keep and save the already existing local administrative structure. The Belgians shifted from the former German ‘indirect rule’ to a ‘direct rule’ which led to an erosion of the whole kingdom through the Belgian colonial administration.

In 1931 the Tutsi tried to arrange a plot against the Belgian colonial power, because the Mwami was against colonization. This led to the deposition of the Tutsi Mwami (Yuhi) which caused almost no objection from the League of Nations. The Mwami was replaced by Mwami Rudahigwa, who was also known as the King of the Whites.

10  After the deportation of Mwami Yuhi, the Belgians felt it necessary to restructure Rwandan society. Therefore the colonial power established a system of classification to divide the local population. They set up fixed criteria to distinguish Tutsi, Hutu, and Twa. In 1933–35 the Belgian administrators even went a step further by starting the classification of the whole Rwandan population into three categories: (Ba-)Tutsi, (Ba-)Hutu, or Twa. Rwandans who possessed more than 10 cattle were registered as (Ba-)Tutsi whereas those Rwandans with fewer than 10 cows were registered as (Ba-)Hutu. The Twa, a pygmy population, were the third category. Additionally, especially tall and thin persons were registered as (Ba-)Tutsi whereas shorter and broader Rwandans were registered as (Ba-)Hutu. Every Rwandan was registered and measured. With this later physical criterion, the Belgians tried to support this system identifying the genetic rules of these different ‘ethnicities’. Every Rwandan received an identity card in which his/her ethnicity was specifically stated.

11  From the very beginning of Rwanda’s colonization, the Roman Catholic Church (Pères Blancs) had a very strong influence in its development. Under the influence of the Catholic Church a discriminatory educational system was established within which the Hutu and Tutsi were not treated equally. The majority of students were Tutsi in the 1940s and 1950s. In 1943 even Mwami Mutari converted to Catholicism.

12  After the end of the League of Nations and the establishment of the United Nations (UN), the direct involvement of the UN began. The UN Trusteeship Council was founded to help the former colonial countries transition to independence. Rwanda was transferred from a League of Nations’ mandate to an UN Trusteeship territory (United Nations Trusteeship System) still administered by Belgium. Between 1948 and 1962 the UN Trusteeship Council sent five missions to Rwanda and each of the reports criticized the Belgian administration. The reports pointed out the lack of education and the missing self-representation of the Hutu in local affairs. On a general level the reports alleged that the Belgian administration was gaining material success at the expense of the Rwandan people. In 1954 the Tutsi monarchy of Rwanda demanded independence and challenged the abolishment of Ubuhake. Ubuhake was an old socio-economic system practised for over 400 years in Rwanda. It described a form of voluntary patron/client relationship which is not characterized by the ethnicity of the individual but by their social status. The less-privileged client used the land and cattle of the privileged patron who in addition granted his protection in exchange for agricultural goods and personal or military services. The ultimate patron was the Mwami who for 20 generations originated from one Tutsi clan. He had Tutsi clients who themselves had Hutu, Twa, or Tutsi clients of inferior status. Although Ubuhake was a reciprocal system that had benefits for both client and patron, it ultimately allowed the cattle-owning Tutsi to rule over the Hutu.

13  In 1957 anticipated by a UN visit and encouraged by the Catholic Church and many Belgian priests, a movement of Hutu advocates arose against the aristocratic Tutsi. The Hutu movement was united in the Parti du Movement de l’Emancipation Hutu (‘PARMEHUTU’) which mainly focused on ending their colonization by the Belgians, assisted by the Tutsi. Grégoire Kayibanda, one of the main leaders of PARMEHUTU, wrote the ‘Manifesto of the Hutu’ which was the basis for the group to become militarized.

14  The Tutsi response to this new formation was the foundation of the Union Nationale Rwandaise (‘UNAR’) in 1959. This pro-monarchist party was founded by Tutsi who aimed for the direct independence of Rwanda.

15  In July 1959 the Tutsi Mwami Mutara III Charles died under suspicious circumstances. In the Rwandan Tutsi community the conspiracy-theory of the assassination of the Mwami emerged. They believed that the Mwami had been killed by the Belgians in co-operation with the Hutu.

16  In November 1959 violence erupted in the whole country, causing, according to a UN report, the death of around 200 people. This ultimately led to a wave of migration of the Tutsi into neighbouring countries. Rwanda was placed under Belgian military rule. Several UN reconciliation conferences failed.

3.  Independence Phase

17  At the UN’s urging, the Belgian administration divided Ruanda-Urundi into two countries: Rwanda and Burundi. In 1961 the Rwandans, with the support of the Belgian administration, abolished the monarchy and established a republic (Decolonization: Belgian Territories). Dominique Mbonyumutwa, a Hutu, was the first President of the Transitional Government of Rwanda.

18  During the period 1961–63, Tutsi guerrilla groups started to attack the transitional government from the neighbouring countries, namely Burundi and Uganda. But the attacks failed and the National Rwandan troops responded with reprisals against national Tutsi populations. Over 10,000 people fell victim to the backlash by the PARMEHUTU government. In February 1962 the UN expressed its deep concern with the refugee crisis by creating a Special Commission of five Member States to guide Rwanda into independence. Independence was to be received as soon as possible, to allow the refugees to return to their country. In March 1962 the Commission visited Rwanda and found that the Tutsi minority had been systematically suppressed by the Hutu leadership. Nevertheless the UN Trusteeship ended on 1 July 1962 and Rwanda, as well as Burundi, gained full independence. Rwanda became a sovereign republic ruled by the PARMEHUTU.

4.  Post-Independence

19  From 1962 to 1973 Grégoire Kayibanda was the first President of Rwanda. In 1973 the former Defence Minister Juvénal Habyarimana, a Hutu, gained power through a coup against Kayibanda. Habyarimana was a harsh dictator who suppressed the Tutsi as well as the moderate Hutu. By the 1990s Rwanda had approximately 1 million refugees spread throughout neighbouring countries, such as Uganda, the Congo, Burundi, and Tanzania. On the political level, Habyarimana’s party, the Mouvement Révolutionnaire National pour la Démocratie et le Développement (‘MRND’), remained in power, although it was just one of multiple parties participating in the political system.

5.  1990s: Civil War and Genocide

20  In 1986 Paul Kagame—a Tutsi who became head of military intelligence in the Ugandan army—together with Fred Rwigema, founded the Rwandan Patriotic Front (‘RPF’). Most of the Tutsi, Rwandan refugees, who were in the Ugandan military forces joined the RPF and formed the Rwandan Patriotic Army (‘RPA’), with the objective of a military invasion from Uganda into Rwanda, while the political wing engaged in negotiations with the Habyarimana regime.

(a)  Peace Negotiations

21  On 1 October 1990 the RPF invaded Rwanda from Uganda, but the Rwandan Army Forces repelled the attack and forced the RPF to retreat (Armed Attack). Directly after the invasion of the RPF, a Belgian delegation, including the Prime Minister, the Foreign Minister and the Defence Minister, went on a peace mission to meet the Heads of State of Rwanda, Uganda, Tanzania, and Zaire (now the Democratic Republic of Congo). Additionally, the Communauté économique des pays des Grands Lacs (‘CEPGL’) and the African Union (AU) reacted quickly to the conflict.

22  In February 1991 the Rwandan government agreed to the Dar-es-Salaam Declaration. This agreement between the Rwandan government and the RPF included a necessary cease-fire element and the need for essential peace negotiations. This declaration was witnessed by the UN High Commissioner for Refugees, the AU, and the Zairian government. A particularity of the declaration was its outline to a solution concerning the question of refugees. This declaration was the first main achievement within the peace negotiations and formed the basis for negotiations on the situation of the Rwandan refugees during the Arusha talks.

23  The next step constituted the N’sele Cease-Fire Agreement between the Government of the Rwandese Republic and the Rwandese Patriotic Front of 29 March 1991 (‘N’sele Agreement’), which only lasted for a couple of days. This ceasefire agreement included the deployment of a monitoring force, under the authority of the AU but, at the time of the N’Sele Agreement, the Neutral Military Observer Group (‘NMOG’) was not yet established. Shortly after the signing of the N’Sele Agreement, violations from both sides resumed and caused the continuation of the fighting for several months.

24  On 16 September 1991 both sides signed another ceasefire agreement: the Gbadolite Cease-Fire Agreement. The content of the new agreement was similar to the N’Sele Agreement: there was a restructuring of the NMOG which mainly focused on a new Nigerian Head Officer instead of the Zairian one, because of the lack of confidence in the neutrality of Zaire within the peace process.

(b)  The Arusha Accords

25  Under the main influence of Belgium, the United States of America, and the AU, the two parties—RPF and the Rwandan government—continued their peace talks. In July 1992 the peace talks started in Arusha, Tanzania. The peace negotiations continued for the whole of 1992, when representatives of the Rwandan government and RPF also gathered in Paris to develop a Peace Accord to finish the civil war. In October 1992 the Rwandan government granted the establishment of a transitional government which involved all Rwandan political parties including the RPF. In August 1993 the RPF and the Rwandan government signed the Peace Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front—known as the Arusha Accords. The Arusha Accords incorporated three ceasefire agreements: (i) the N’Sele Agreement, (ii) the Gbadolite Cease-Fire Agreement, and (iii) the Arusha Cease-Fire Agreement. It also included five protocols: a) the Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on the Rule of Law of 18 August 1992, b) the Protocols of Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on Power-Sharing within the Framework of a Broad-Based Transitional Government of 30 October 1992 and 9 January 1993, c) the Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on the Repatriation of Refugees and the Resettlement of Displaced Persons of 9 June 1993, d) the Protocol Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on the Integration of Armed Forces of the Two Parties of 3 August 1993, and e) the Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on Miscellaneous Issues and Final Provisions of 3 August 1993. Based on a request of the Rwandan government and the leaders of the RPF, manifested by the Letter Dated 14 June 1993 from the Permanent Representative of Rwanda to the United Nations Addressed to the President of the Security Council (UNSC [15 June 1993] UN Doc S/25951), the Arusha Accords included the determining role of a Neutral International Force (‘NIF’), mainly UN, which was to be in charge of the supervision and assistance of the implementation of the Arusha Accords during the time of transition. This NIF also included the NMOG II.

26  The Arusha Accords initiated a fundamental change in the existing political, military, and constitutional system of Rwanda. New transitional institutions were to be installed, such as a (broad-based) transitional government and a new National Assembly. The Rwandan Army and the RPF were to be disarmed, demobilized and integrated into a new collective Rwandan army. And the return of the refugees was to be forced and initiated. It was also decided that the first Prime Minister of the transitional government should be Faustin Twagiramungu, a politician from the Mouvement Démocratique Républicain (‘MDR’)—a Rwandan opposition party.

27  But this agreement had two main entrapments: first, the exclusion of the extremist parties and secondly, the pressure from outside through the international community caused some irrational reactions.

28  The first problem was mainly caused through the RPF. The RPF leadership insisted on the ban of the extreme right wing group of the government of Rwanda, the ‘Coalition pour la Défense de la République’ (‘CDR’), from the talks. Additionally the CDR was to be excluded from the new government. This extremism had grown up since 1990 with multi-partyism, and had given rise to some civil defence programmes with the establishment of militia, namely the Interahamwe and the Impuzamugambi (Militias). The government of Rwanda, the external African negotiators (Tanzania, Uganda), and the Western governments were against the exclusion of the CDR (and other Pro-Hutu/Anti-Tutsi-hardliners), because they were of the view that it would be easier to control the extremists if they were part of the government. However, the RPF enforced the ban of the CDR from both the negotiations and the government.

29  The other main problem during the negotiations was the fragmentation of the negotiation team of the Rwandan government. The team was split into three main groups: the group around President Habyarimana, the CDR, and the opposition parties. Therefore the government negotiation team was weakened through internal structural problems and the strong opposition of the RPF to extremist parties. The exclusion of the extremists increased such weakness.

30  The peace negotiations in Arusha are a prime example that conflict resolutions on an international level can bear major sources of conflict. On one hand, the parties have to produce a resolution within a short period of time which every party to the conflict afterwards can agree to as an acceptable obligation. On the other hand, the pressure of external negotiators often pushes parties in a direction which completely contradicts their primary conception of the conflict resolution and, most importantly, their primary interests. Both problems were manifest during the Arusha peace negotiations, which resulted in neither the Rwandan government nor the RPF accepting the accords as absolutely compulsory. Therefore, the fighting between these two sides continued.

(c)  The Role of the UN in the Peace Process and the Peacekeeping

31  In addition to supporting the mediation process through the international community, the UN was also dealing with the situation in Rwanda on a human rights level. In 1992 and 1993 the UN Commission on Human Rights discussed the human rights situation in Rwanda. Both sessions of the UN Human Rights Commission were held in closed sessions.

32  Bacre Waly Ndiaye, the Special Rapporteur for the Commission on Human Rights for Extrajudiciary, Summary or Arbitrary Executions, visited Rwanda in April 1993. In his report, he stated that massive and grave violations happened in Rwanda (UN Commission on Human Rights Special Rapporteur BW Ndiaye, ‘Extrajudicial, Summary or Arbitrary Executions’ [11 August 1993] UN Doc E/CN.4/1994/7/Add.1). The report stated that the Rwandan government accused all Tutsi of aiding and abetting the RPF. The situation inside the country was therefore filled with ethnic hatred and the government of Rwanda was accused of making propaganda against the Tutsi.

33  In his report he used the word ‘genocide’ because the victims of the occurring violence in Rwanda were mainly the Tutsi population and the massacres were prepared and planned while weapons were distributed via representatives of the authorities and hatred propaganda was broadcast on the Rwandan radio and the well-known Radio Télévision Libre des Mille Collines. Additionally the perpetrators of the massacres were precisely organized under strict organizational leadership. Based on the collection of these facts, Ndiaye was convinced that the Convention on the Prevention and Punishment of the Crime of Genocide (78 UNTS 277; ‘Genocide Convention’) was applicable.

34  At the beginning the UN played a marginal role in the Rwandan conflict and the dispute settlement between the government of Rwanda and the RPF. After an RPF offensive in February 1993, Ugandan President Y Museveni sent a written invitation to the UN to observe the Ugandan border with Rwanda in order to monitor that Uganda was not supporting the RPF offensive (UNSC ‘Letter Dated 22 February 1993 from the Permanent Representative of Uganda to the United Nations Addressed to the President of the Security Council’ [3 March 1993] UN Doc S/25356; see also UNSC ‘Letter Dated 18 May 1993 from the Permanent Representative of Uganda to the United Nations Addressed to the President of the Council’ [19 May 1993] UN Doc S/25797). This official invitation to the UN caused on the one side the establishment of the UN Observer Mission Uganda-Rwanda (‘UNOMUR’), and on the other side it can be seen as a starting point for a more effective involvement of the UN in the peace negotiations between the RPF and the Rwandan government.

35  The UNOMUR was a peacekeeping mission established pursuant to UN Security Council Resolution 846 of 22 June 1993 that lasted from June 1993 to September 1994. Its mandate was to:

[M]onitor the Ugandan/Rwandan border to verify that no military assistance reaches Rwanda, focus being put primarily in this regard on transit or transport, by roads or tracks which could accommodate vehicles, of lethal weapons and ammunition across the border, as well as any other material which could be of military use.

It was based in Kabale, Uganda. From June to October 1993, Brigadier-General Roméo Dallaire from Canada was the Head of the Mission; he later became Force Commander of the United Nations Assistance Mission for Rwanda (‘UNAMIR’).
36  After the weak performance of the NMOG, the UN established the international peacekeeping force UNAMIR (Peacekeeping Forces) by UN Security Council Resolution 872 of 5 October 1993:

to assist in ensuring the security of the capital city of Kigali; monitor the ceasefire agreement, including establishment of an expanded demilitarized zone and demobilization procedures; monitor the security situation during the final period of the transitional Government’s mandate leading up to elections; assist with mine-clearance; and assist in the coordination of humanitarian assistance activities in conjunction with relief operations.

Furthermore the UNAMIR was to encourage the return of displaced persons and provide support for humanitarian operations inside Rwanda (Humanitarian Assistance in Cases of Emergency; Humanitarian Assistance, Access in Armed Conflict and Occupation ; Internally Displaced Persons).

37  On 21 April 1994 the UNAMIR mandate was altered by UN Security Council Resolution 912 of 21 April 1994. The UNAMIR mandate integrated a mediation position for UNAMIR between the different Rwandan parties to secure a ceasefire agreement, to support humanitarian operations, and to monitor the recent developments within the country. Additionally, UNAMIR was mandated as a refuge shelter to guarantee the safety and security of civilians. During the genocide, after the situation in Rwanda worsened, the UNAMIR mandate was extended through UN Security Council Resolution 918 of 17 May 1994. UNAMIR was thereafter enabled to contribute actively to the security and protection of refugees and civilians, through means like the establishment of secure humanitarian areas and the provision of security for rescue operations. Numerous resolutions were later adopted to adjust the mandate of the peacekeeping mission throughout the years (see UNSC Res 965 [1994] [30 November 1994]; UNSC Res 997 [1995] [9 June 1995]; and UNSC Res 1029 [1995] [12 December 1995]). The mandate of UNAMIR came to an end on 8 March 1996, and the withdrawal of the Mission was completed by April 1996. An independent inquiry was conducted on the way in which the UN reacted to the events which led to the genocide. The aim of the inquiry was to draw a conclusion and clarify the lessons learnt from the misbehaviour of the UN. Therefore the mandate of the inquiry covered the entirety of the actions of the UN concerning the Rwandan genocide of 1994.

(d)  Genocide

38  On 6 April 1994 the plane of the Rwandan President was shot down while almost in Kigali. That same night, senior Rwandan military officers and some leaders of the ruling party, the MRND, met and started working towards setting up a new regime, while members of the Transitional Government and moderate political leaders were systematically assassinated. On 8 April 1994 an interim government was established with Mr Kambanda as Prime Minister.

39  From the night of 6 April onwards, after the plane had been shot down, the army and the militiamen were mobilized in a mass killing which the UN failed to stop, in the absence of an appropriate mandate for UNAMIR. The killing also affected the Blue Helmets; 10 Belgian Blue Helmets sent for the protection of the Prime Minister having been executed. The immediate withdrawal plans implemented by Belgium, in April 1994, and other contributing States, weakened UNAMIR. Various governments deployed troops to organize the transfer of their citizens out of Rwanda, while UNAMIR remained weak, both in term of human resources and military capacity to respond to the violence.

40  The jurisprudence developed concerning the genocide has shown that political leaders (especially within the interim government), military leaders, and various local leaders (including some key players in the militia) were involved in the killings. Among those, it is worth mentioning, were Jean Kambanda, who pleaded guilty before the International Criminal Tribunal for Rwanda (ICTR) and was convicted on trial; Colonel Théoneste Bagosora, who was convicted by trial and whose case is currently under appeal (see Military I [Bagosora and others] Case); and George Rutaganda, Vice-President of the Interahamwe, who was also convicted. Each of them was convicted at least for genocide, even though most of them did not, themselves, actually kill: their role had been to lead and/or support the assailants, either by their words of encouragement, their presence, their assistance, or the initiatives they put in place or implemented (Individual Criminal Responsibility).

41  According to the AU report on the genocide, at least 500,000 and more likely 800,000 persons were killed during the 100 days from April to July 1994 (African Union ‘Rwanda: The Preventable Genocide’ para. 14.2). Even though no forensic or criminal procedure could ascertain such data, this seems an uncontested fact. However the Rwandan government stated on 8 November 1994 that more than 1 million Rwandans were killed (UNSC Verbatim Record [8 November 1994] SCOR 49th Year 3453rd Meeting).

(e)  Post-Genocide

42  In his report, the Special Rapporteur (mandated on 25 May 1994 to investigate the human rights situation firsthand) characterized the ongoing violence as a genocide and recommended the establishment of an ad hoc international criminal tribunal to punish the involvement in the commission of crimes (UN ECOSOC ‘Report on the Situation of Human Rights in Rwanda E/CN.4/S-3/1 of 25 May’ [28 June 1994] UN Doc E/CN.4/1995/7). After the RPF gained control of the country, in mid-July 1994, it requested the UN to establish an international criminal tribunal for the punishment of those who committed the genocide (UNSC ‘Letter Dated 28 September 1994 from the Permanent Representative of Rwanda to the United Nations Addressed to the President of the Security Council’ [29 September 1994] UN Doc S/1994/1115). On 8 November 1994, the UN Security Council adopted Resolution 955 establishing the International Criminal Tribunal for Rwanda (UNSC Res 955 [1994] [8 November 1994]). It is worth noting that Rwanda, however, was the only State to vote against that resolution. In his statement after the vote, the representative of the government of Rwanda criticized the temporal jurisdiction (limited to 1994) of the ICTR, the extension of the jurisdiction to other crimes than genocide (International Criminal Courts and Tribunals, Complementarity and Jurisdiction), the sharing of court organs with the International Criminal Tribunal for the Former Yugoslavia (ICTY) (Prosecutor and Appeals Chamber), the exclusion of the death penalty from the scope of possible sentences, and the site of the Tribunal (UNSC Verbatim Record [8 November 1994] SCOR 49th Year 3453rd Meeting).

43  In early 1995 the UN Security Council and the UN General Assembly elected the ICTR judges for a four-year term. In November 1995 the first indictment was confirmed. The first trial opened on 9 January 1997, the judgment being delivered some 30 months later. Since then, the tribunal has convicted 41 individuals, and acquitted seven others. There are still 29 accused currently either on, or awaiting, trial. In addition to those two groups, there are some 11 fugitives (UNSC ‘Letter Dated 12 November 2008 from the President of the International Criminal Tribunal for Rwanda Addressed to the President of the Security Council’ [12 November 2009] UN Doc S/2009/587). Among the fugitives, Félicien Kabuga remains the most notorious, and the situation raises questions about the ability of the ICTR to secure the enforcement of its orders. In the absence of an enforcement agency, the ICTR relies on the co-operation of States. In this particular case, it appears that the Republic of Kenya has failed to provide such co-operation (UNSC ‘Letter Dated 3 June 2008 from the Secretary-General Addressed to the President of the Security Council’ [3 June 2008] UN Doc S/2008/356), while at the same time, it managed the arrest of some six other accused in the past. Such double standard can only be explained by the interests of the State or those of some of its individual leaders. Currently some of the fugitives have been identified in the Congo, and only the failure of the State can help to explain why they have not yet been arrested.

44  After 15 years of existence, the life of the ICTR seems to have come to an end. On 19 December 2008 the UN Security Council accepted the need for an international mechanism to take over for the functions which will survive the closure of the tribunal, ie the residual functions, the end of the trial proceedings having been envisaged for December 2009. The UN Security Council has since extended the deadline to December 2010 (UNSC Res 1901 [2009] [16 December 2009] SCOR 64th Year 2). Having been asked, the UN Secretary-General has produced a report on the residual issues and the UN Security Council is currently working towards a Statute for an International Residual Mechanism for Criminal Tribunals, as it is called at this stage (UNSC ‘Report of the Secretary-General on the Administrative and Budgetary Aspects of the Options for Possible Locations for the Archives of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda and the Seat of the Residual Mechanism(s) for the Tribunals’ [21 May 2009] UN Doc S/2009/258).

45  Apart from the criminal justice system at the international level, there are also domestic proceedings both in Rwanda and outside Rwanda against persons allegedly involved in the genocide.

46  In Rwanda, the State-built judicial system was not able to deal with all of the persons accused of participation in the crimes. In 2000 the State therefore institutionalized a traditional dispute resolution mechanism, the Gacaca, and gave the newly established Gacaca Courts jurisdiction over certain categories of participation in the genocide. The Gacaca Judges were elected in 2001, and trained throughout 2002. Since then, they have been hearing many of the offences committed in 1994. At the same time, those accused of actual killings are being tried by the State courts, at different levels.

47  As part of its completion strategy, the ICTR has decided to refer some cases to domestic jurisdictions, including Rwanda (see Rule 11bis International Criminal Tribunal for Rwanda Rules of Procedure and Evidence). Rwanda has taken steps for such a referral to occur, including adopting an organic law on the referred cases, and abolishing the death penalty. However, no referral to Rwanda has been granted yet. In other countries, there have been extradition proceedings in favour of Rwanda, but the referral decisions of the ICTR have in some instances fuelled the denial of the extradition request (see, for example, Vincent Brown aka Vincent Bajinja, Charles Munyaneza, Emmanuel Nteziryayo and Célestin Ugirashebuja v The Government of RwandaEngland and Wales High Court of Justice Divisional Court of Appeal [8 April 2009] [2009] EWHC 770).

48  There have been proceedings against Rwandans in other countries, notably Belgium, Canada, France, Spain, and Switzerland. Those criminal proceedings were initiated on various grounds, including the universal jurisdiction established for international crimes in those countries (Criminal Jurisdiction of States under International Law). In two instances (France and Spain), the proceedings were initiated against members of the RPF, and they have provoked political arguments and countermeasures from Rwanda. For instance, an investigation has been conducted by the Rwandan government on the participation of the French government in the genocide, and a complaint has been even lodged before the International Court of Justice (ICJ). In February 2005 in France, six Rwandans filed a complaint before the Tribunal aux Armées de Paris for complicity in genocide and crimes against humanity, the allegation being that French military officers (Opération Turquoise) permitted Interahamwe to remove some Tutsi refugees from the protected zone under their control, and those refugees were later killed. In November 2008 the Protocol Chief of President Kagame was arrested in Germany and extradited to France, charged with participation in the shooting down of the presidential plane on 6 April 1994. After a few days of pre-trial detention, she was granted bail and returned to Rwanda while awaiting trial.

49  These criminal proceedings, at both international and domestic levels, even with their eventual political dimension, are part of the fight against impunity for international crimes, and massive violations of human rights. However the crisis in which Rwanda has been engaged since the early 1990s is not over, in view of the developments involving some neighbouring countries.

C.  Rwanda and Crisis in its Neighbouring Countries

50  As indicated in the introduction, there are four neighbouring countries: Burundi, the Congo, Tanzania, and Uganda. Rwanda has developed historical relations with Burundi based on the similarity between their population and the related culture; and with Uganda first through the successive exile of the Tutsi and through the rebellion as described above. Tanzania has also welcomed Rwandan refugees, especially since 1994. It is only with the Congo that the relationship has developed into a major crisis.

51  In July 1994 when the RPF came into Kigali and took over power, military and paramilitary forces of the interim government fled, many of them escaping to Zaïre. The new government then provided substantial support to the Alliance des Forces Démocratiques de Libération du Congo-Zaïre (‘AFDL’), run by Laurent-Désiré Kabila who succeeded in overcoming the Mobutu regime in 1997. However, the idyll did not last long: in July 1998 the Army Chief-of-Staff was dismissed and Kabila instructed all military Rwandans to leave the country, while relying on the support of some ex-Rwandan officers. Despite such a breakdown, the Government of Rwanda did not withdraw its military forces. Instead it shifted its substantial support from Kabila’s government to the rebellion in the Eastern provinces, mainly in Kivu and, to some extent in Ituri. In June 1999 the Congo lodged a case before the ICJ, separately against Rwanda, Burundi, and Uganda. In 2001 the Congo withdrew its applications against Burundi and Rwanda, but renewed the proceedings against Rwanda in 2002. The ICJ has already rendered its judgments in those cases (Armed Activities on the Territory of the Congo Cases).

52  On 19 December 2005 the ICJ rendered its judgment in the case against Uganda, and its relevance is based on the similarity to the first application against Rwanda (Armed Activities on the Territory of the Congo [Democratic Republic of the Congo v Uganda] [2005] ICJ Rep 168). The ICJ found that Uganda did violate, among others, the prohibition of military action by invading part of the territory of the Congo and providing military support to rebellion in the Congo. One could imagine that the ICJ might have reached the same conclusion, had the Congo pursued its original action against Rwanda.

53  In the second case, on 3 February 2006, the ICJ found that it did not have jurisdiction to hear the renewed application against Rwanda in 2002, which was limited to human rights violations in relation to specific instruments (Armed Activities on the Territory of the Congo [Democratic Republic of the Congo v Rwanda] [Jurisdiction of the Court and Admissibility of the Application] [ICJ 3 February 2006]).

54  Despite those judicial proceedings, the military presence of Rwanda has persisted. Recently, the warlord and International Criminal Court (ICC) suspect, Laurent Nkunda, has been at the forefront. His rebellion group, Congrès National pour la Défense du Peuple (‘CNDP’), has grown with the support of the Rwandan government, which was clearly detailed in the report of the expert panel (UNSC ‘Final Report of the Group of Experts on the Democratic Republic of the Congo’ [12 December 2008] UN Doc S/2008/773). He had even won some major fights against the Kinshasa forces. However, he is currently under house arrest in Rwanda. And in January 2009 the CNDP issued a unilateral statement on the end of hostilities, while requesting the government of Kinshasa to take all necessary measures to win the fight against the ex-Rwandan military forces and Interahamwe occupying the eastern provinces. At the same time, the two governments (of Rwanda and the Congo) agreed and conducted joint military actions in those regions which have been carried out with some success, according to the official sources.

D.  Assessment

55  The Rwandan genocide has offered to the world the first instance for enforcement of the Genocide Convention before an international court, let alone a criminal one. In addition, both ad hoc tribunals (the ICTR and the ICTY) influenced the willingness of States to move forward, and the negotiations for the ICC were reopened and led to the adoption of the Rome Statute of the International Criminal Court (2187 UNTS 90) in July 1998. Throughout that process, international crimes have been further developed, including certain customary norms. The definition of the crimes has been further elaborated, building on the jurisprudence developed by the ad hoc tribunals. Later, other courts were set up, namely the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia (Mixed Criminal Tribunals [Sierra Leone, East Timor, Kosovo, Cambodia]). Moreover, the ICJ has been able years later to provide its own substantial judgment finding that a State failed in not taking measures to prevent another genocide (Application of the Convention on the Prevention and Punishment of the Crime of Genocide [Bosnia and Herzegovina v Serbia and Montenegro] [Judgment] [2007] ICJ Report 43, 169). Since Rwanda 1994, the world has certainly changed, especially the criminal dimension of international law. But that seems insufficient to discourage similar criminal conduct.

56  The slogan ‘Never Again’ has been repeated, and it should be hoped that it would not be in vain. Elsewhere, in Sudan for instance, there are already serious allegations of mass atrocities against specific groups. While in Rwanda no reliable allegations have been of such a nature, the violations of human rights are still serious enough, bearing in mind the past. Early in 2003, when the transitional period was coming to an end, civil liberties were still restrained without good reason, while in the context of the elections, some political opponents disappeared. More recently a key opponent and candidate for 2010 elections, Mrs Ingabire Victoire, was jailed for denial of the genocide. At the same time, there have been a few instances of grenades exploding in public places in Kigali. In addition, the actions of the Government of Rwanda abroad, in the Congo, and the crimes allegedly committed by its troops and the rebel armed groups it supported, have raised doubt as to whether the authorities have learned any lesson from the genocide. Nevertheless, it should be noted that Rwanda has gained massive importance within the region of the Great Lakes of Africa with its involvement in regional organizations such as the AU, the East African Community, and the Commonwealth of Nations. Additionally it should be pointed out that in 2004 Rwanda was the first country which sent out troops, within a mandate of the AU, to protect observers monitoring the ceasefire between the Sudanese government and rebels in the remote western region of Sudan. Therefore it is noticeable that the slogan ‘Never Again’ can be seen as an ultimate principle and guideline for the actions of the small country of Rwanda.

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