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Complete List of Institute Reports

Release Date:
January 1995



CONTENTS

Key Points

Introduction

Background

The International Tribunal

Trials Before Rwandan Courts

Complementary Approaches

Consequences for Burundi

About the Conference

Endnotes

SPECIAL REPORT 13

Rwanda: Accountability for War Crimes and Genocide

Key Points

The Need for Justice
The International Tribunal
Trials Before Rwandan Courts
Alternatives to Prosecution

The Need for Justice
Justice and accountability must be established with respect to those individuals who perpetrated the atrocities that occurred in Rwanda during the spring and summer of 1994. This is necessary to:

  • exorcise the long-entrenched culture of impunity and collective guilt in Rwanda,
  • achieve a sense of justice necessary for reconciliation,
  • stem vigilante retribution,
  • facilitate a return of refugees, and deter a new round of violence in Rwanda and Burundi.
  • Debate over whether trials should be conducted before an international tribunal or before Rwandan courts has been an unhelpful distraction. Both are necessary and should get under way as quickly as possible.

The International Tribunal
To have an impact in Rwanda, the tribunal should conduct its hearings in Kigali, not elsewhere in Africa or in the Hague.

  • The international tribunal should focus its prosecution efforts on the central core of individuals who planned and organized the genocide (approximately 100 to 300 persons).
  • Without diluting its primary focus on the atrocities of April-July in Rwanda, the tribunal can also ameliorate the situations in Zaire and Burundi by exercising its jurisdiction over certain crimes committed in those countries.

Trials Before Rwandan Courts
The Rwandan government should begin its own prosecutions as soon as possible, not postpone these national proceedings until the conclusion of trials before the international tribunal.

  • The international community should immediately provide judges, lawyers, investigators, and monitors for the Rwandan trials. Individuals in the first three categories would not merely act as advisors, but actually function in their respective roles in the Rwandan court system.
  • Estimates of potential defendants in the trials before Rwandan courts range from 20,000 to 100,000. Attempts to prosecute such large numbers would drain needed resources, result in less fair proceedings, and have a destabilizing effect rather than contributing to national reconciliation. Despite declarations by the Rwandan government that every participant in the atrocities must be tried and punished, a method must be found to significantly reduce the number of possible defendants.
  • Rwandan courts should not impose harsher penalties--including the death penalty--in their trials of second- or third-tier defendants than the penalties the international tribunal will impose on the organizers of the genocide.
  • The Rwandan government must firmly and visibly oppose vigilantism by prosecuting and punishing those who commit crimes of retribution. If Rwandan authorities do not prosecute such cases, the international tribunal should do so.

Alternatives to Prosecution
Other approaches that have been taken in countries emerging from violence and repression may complement the prosecution effort, such as the use of a commission of inquiry and the compensation of victims.


Introduction

Within a matter of weeks this past spring, the name "Rwanda" became synonymous with carnage and violence on a massive scale. Images of executions and massacres flooded the media, shocking the international community. An organized campaign of violence was carried out, during which the Tutsi were referred to as "cockroaches" and "the enemy," and Rwandan radio broadcasters exhorted every Hutu to kill Tutsi, complaining that "graves are still only half full." In less than four months, between 500,000 and a million people were killed. Before 1994, Rwanda was the most densely populated country in continental Africa. Between April and August 1994, that statistic shifted radically, as Rwanda lost 20 percent to 40 percent of its population to slaughter or exile.

As one participant in the Institute conference stated, "Genocide has worked in Rwanda." Precise figures are difficult to obtain. Over the past thirty years, however, the cycle of violence and counter-violence in Rwanda and neighboring Burundi has resulted in the killing of between 300,000 and 600,000 people--and that was before the carnage in 1994. Elites maneuvering for power have, for decades, been able to manipulate ethnic rivalries for political ends without any fear of being called to account for their actions. Rejection of this culture of impunity will be crucial to ending the cycle of violence and achieving authentic national reconciliation. To this end, the Rwandan government and the international community must provide a clear and public demonstration that those who organize or engage in such genocidal activity will be held accountable.

The United Nations Security Council has taken the first important step toward the goal of accountability by establishing the "International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighboring States, between 1 January 1994 and 31 December 1994." The approach adopted by the Security Council largely affirms the conclusions reached at the Institute's conference, at which a variety of options and approaches for establishing an international tribunal were analyzed and debated by senior officials and policymakers from Rwanda, the United States, and the UN, and by several academic experts. This report discusses the choices made by the UN Security Council on key features of the International Tribunal for Rwanda and recommends several further steps to be taken.


Background

The population of Rwanda is composed primarily of two ethnic groups, the Hutu (85 percent) and the Tutsi (14 percent). In 1959, Rwanda's Hutu majority rebelled against their former Tutsi overlords. By 1960, the Hutu-dominated party, Parmehutu, had gained political control of Rwanda, which it retained after the country achieved independence in 1962. Ethnic violence erupted in December 1963, with the killing of more than 20,000 Tutsi and the exodus of 100,000. Tutsi refugees tried unsuccessfully to invade Rwanda from neighboring countries a number of times. After each failed invasion, the Tutsi in Rwanda faced severe reprisals; one attack in late 1963 for instance, resulted in the killing of 10,000 Tutsi. After a few years of relative calm, tensions between Hutu and Tutsi again escalated in the early 1970s. In 1973, Juvenal Habyarimana seized power in a coup d'etat, citing the need to establish order, and continued as president for the next twenty-one years.

Over the next two decades, although President Habyarimana claimed to have instituted a program to ease ethnic tensions and create a balance between the two ethnic groups, most observers saw the initiative as perpetuating discrimination against the Tutsi. Worsening economic conditions in the late 1980s also increased opposition to Habyarimana. Responding to both international and domestic pressures, Habyarimana had recently announced a new program of political reform when the Rwandan Patriotic Front (RPF) invaded Rwanda from bases in Uganda on October 1, 1990. The government responded by arresting and imprisoning 8,000-10,000 people around the country, primarily Tutsi and suspected opponents of Habyarimana, and holding many of them without charge for several months. The conflict continued through 1991 and 1992, resulting in the deaths of thousands and the displacement of an estimated 100,000 persons.

Early in 1992, political organizations affiliated with President Habyarimana formed two militias--the Interahamwe ("Those Who Attack Together") and the Impuzamugambi ("Those Who Have the Same Goal"). Trained and supplied by the Rwandan army, the militias were involved in the killing of more than 2,000 civilians, mostly Tutsi. They would play a central role in the atrocities that commanded the world's attention in 1994.

During late 1992 and 1993, the Rwandan government and the RPF negotiated a series of agreements in Arusha, Tanzania, culminating in the signing of a comprehensive accord in August 1993 that provided for a programmed demobilization, the creation of an integrated army, a new transitional government with a prime minister acceptable to both sides, and multiparty general elections with the full participation of the RPF. Hutu extremists, including many close to Habyarimana, were vehemently opposed to the accords and the consequent reduction of their own power.

Unfortunately, the tentative peace resulting from the Arusha Accords was short-lived. Massive ethnic massacres in Burundi in October 1993 fueled tensions in Rwanda. Political assassinations and a reign of terror by the militias increased. On April 6, 1994, a plane carrying Habyarimana and Burundian President Cyprien Ntaryamira crashed near Kigali airport, killing both men and igniting an explosion of violence and brutality.

Hutu extremists immediately accused the RPF of assassinating President Habyarimana. Almost instantly, Hutu soldiers, the presidential guard, and the militias began to hunt down and kill Tutsi civilians. Sufficient evidence exists to confirm that the slaughter that ensued was not chaotic, uncontrolled violence, but rather a planned and organized campaign of genocide. Hutus suspected of opposing extremist policies were also targeted for slaughter, in cluding moderate members of Habyarimana's cabinet who were searched out and killed within hours of the plane crash.

In many countries that have suffered a campaign of massive violations of human rights, the violence has been perpetrated mainly by military and political organizations associated with the regime, leaving the rest of society to go about its business with relatively clean hands. In striking contrast, the Rwandan atrocities were characterized by the deliberate attempt to force public participation on as broad a basis as possible, co-opting everyone into the carnage against Tutsis and moderate Hutus. The militias were tightly organized throughout the country, inciting civilians to participate in the massacres. Many Hutu were forced to choose between killing or being killed. If Tutsi deaths were not of sufficient number in a region, experienced killers were brought in from other areas to intensify the massacres.

Fighting between the Rwandan army and the RPF resumed on April 7, the day after the plane crash. On July 18, 1994, with the Hutu-dominated Rwandan government in flight, the RPF declared victory and established a new government of national unity. After three months of fighting, between 500,000 and a million Tutsi had been exterminated. Up to two million refugees, overwhelmingly Hutu and constituting 25 to 30 percent of the pre-April population of Rwanda, are estimated to have fled the country for refugee camps in Zaire and Tanzania. The capital city, Kigali, was left in ruin. Of the 350,000 inhabitants before the war, only 40,000 to 50,000 remained. There was no running water, no electricity, no government infrastructure, and nearly every building was damaged.

On July 1, 1994, the UN Security Council called for the appointment of a Commission of Experts to investigate and make recommendations concerning "grave violations of international humanitarian law" and "evidence of possible acts of genocide" in Rwanda. On September 29, 1994, the Commission of Experts submitted a preliminary report to the Security Council in which it recommended the establishment of an international tribunal to prosecute war crimes and genocide committed in the country since April 6 of this year.[1] Rather than awaiting the commission's final report and recommendations, the Security Council voted on November 8 to create the tribunal. In accordance with its mandate, the Commission of Experts submitted its final report at the end of November.

In the absence of a formal judicial process, it has been difficult to contain a surge of counter-violence and revenge killings of returning refugees suspected of participation in the April-July massacres, as RPF soldiers and civilians dispense a more brutal form of "justice." These violent incidents of collective vengeance not only threaten the international assistance that the new government desperately needs to rebuild the country, but also impede the return of the refugees and risk plunging Rwanda into a new round of widespread violence. The prompt beginning of a visible prosecution process is required to demonstrate that people need not take the law into their hands.


The International Tribunal

Relationship of the International Tribunal for Rwanda to its Counterpart for the Former Yugoslavia
Jurisdiction of the International and Rwandan Tribunals: The Debate
Jurisdiction of the International and Rwandan Tribunals: Sorting Out the Cases
Location
Obtaining Custody of Suspects: A Step in Resolving the Refugee Problem
Questions of Timing

Relationship of the International Tribunal for Rwanda to its Counterpart for the Former Yugoslavia
"The Security Council,...
Convinced that in the particular circumstances of Rwanda, the prosecution of persons responsible for serious violations of international humanitarian law would ... contribute to the process of national reconciliation and to the restoration and maintenance of peace,...
Acting under Chapter VII of the Charter of the United Nations...Decides hereby, having received the request of the Government of Rwanda, to establish an international tribunal for the sole purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighboring States, between 1 January 1994 and 31 December 1994..."

-- Security Council Resolution 955

On May 25, 1993, the UN Security Council created the "International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991," in the belief that accountability would "contribute to the restoration and maintenance of peace." The tribunal has its seat in the Hague. It is made up of eleven judges from as many countries, divided into two trial chambers and an appellate chamber. The tribunal's 1994 budget was $11 million in UN funds plus several million dollars in voluntary contributions of funds, personnel, and equipment from various countries.

In establishing an international criminal tribunal for Rwanda, the Security Council had three options: (1) expansion of the mandate of the existing tribunal for the former Yugoslavia to include Rwanda; (2) creation of a wholly separate entity under UN auspices, with its own charter, judges, personnel, facilities, etc.; (3) creation of a separate Rwanda tribunal, sharing administrative staff, facilities, and other resources with the Yugoslavia panel.

In its November 8 resolution, the Security Council selected a combination of the three approaches. The International Tribunal for Rwanda is established as a separate entity with its own trial judges, registry system, and administrative staff. On the other hand, the same persons who serve as chief prosecutor and appeals judges for the International Tribunal for the Former Yugoslavia will also carry out those functions for the Rwanda tribunal. The Rwanda tribunal will adopt the rules of evidence and procedure that have been developed for its Yugoslavia counterpart. The decision to link the two tribunals bodes well for a number of reasons, including the following:

Questions of cost: Collecting contributions of staff and resources for the International Tribunal for Yugoslavia from various donor states has been a difficult and time-consuming process. At its offices in the Hague, the Yugoslavia tribunal already has in place sophisticated computer facilities for maintaining investigatory information and court records, training programs for investigators dealing with the sensitive tasks of interviewing victims of the atrocities as well as suspects, a "Victims and Witnesses Unit" to provide counseling and support, a prosecution staff of sixty persons, and an appellate chamber of five judges elected by the UN. While some of these resources will require modification or expansion to accommodate the additional Rwanda responsibilities, this will be much less costly--in a time of zero-growth budgets at the UN--than complete duplication for a separate Rwanda tribunal.

Start-up time: It took a year and a half for the Yugoslavia tribunal to issue its first indictment (on November 7, 1994), and the first trials are not expected until early 1995. These delays have hurt the tribunal's credibility. As noted above, timing is extremely important to the effectiveness of the Rwanda proceedings, both to deter vigilante retribution and to resolve the refugee problem. Establishing an entirely new tribunal would likely have delayed the Rwandan process by some months.

Contradictions in substantive international law: Rwanda and Yugoslavia are the first two cases since the post-World War II war crimes trials in Nuremberg and Tokyo in which such an international tribunal will function. As was true of the earlier proceedings, the tribunal's interpretation and application of evolving international norms with respect to war crimes, crimes against humanity, and genocide will affect this field for years to come. Wholly separate tribunals could well arrive at conflicting interpretations of these international norms, putting them at cross-purposes and undercut ting their credibility. Rather than clarifying and strengthening international standards, the result of "dueling" tribunals could muddy an area of law that is already somewhat murky. Use of a single appeals chamber for both tribunals will ensure that these evolving international norms are interpreted and applied consistently by both of these groundbreaking bodies.

Procedural contradictions: Aside from creating conflicts in substantive international law, completely separate tribunals would potentially also develop two different systems of investigation, rules of procedure, and standards of evidence, raising questions of fairness and possibly negative comparisons between the tribunal established for a European case and the one created with an African focus.

It is important to note that the statute of the Rwanda tribunal does not completely eliminate the possibility of such procedural dissonances. It provides:

The judges of the International Tribunal for Rwanda shall adopt ... the rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters of the International Tribunal for the Former Yugoslavia with such changes as they deem necessary. (emphasis added)

-- Statute of the International Tribunal, Article 14

For the reasons stated above, the judges of the new tribunal should take a highly restrictive approach in adapting the Yugoslavia tribunal's rules of evidence and procedure to the Rwandan case, minimizing the disparities between the two and maintaining a uniform set of rules.

Jurisdiction of the International and Rwandan Tribunals: The Debate
Before the passage of the November 8 Security Council resolution, there was much debate over whether prosecution of those implicated in the Rwandan genocide should take place before an international tribunal established under UN auspices or before a Rwandan court. In its September 29 report, the UN Commission of Experts strenuously argued that prosecution "would better be undertaken by an international, rather than a municipal, tribunal"[2] and warned that convictions by Rwandan courts would likely be perceived not as justice but as simple retribution.

An international tribunal is better positioned to (1) convey a clear message that the international community will not tolerate such atrocities, deterring future carnage of this sort not only in Rwanda but worldwide--and notably in Burundi; (2) be staffed by experts able to apply and interpret evolving international law standards; (3) be more likely to have the necessary human and material resources at its disposal; (4) function--and be perceived as functioning--on the basis of independence and impartiality rather than retribution; (5) advance the development and enforcement of international criminal norms; (6) have a much greater chance than Rwandan courts of obtaining jurisdiction over the majority of senior officials who are no longer in Rwanda.

Prosecution before domestic courts, on the other hand, could enhance the legitimacy of the new Rwandan government and of the judiciary, be more sensitive to nuances of local community, emphasize that Rwandan society would henceforth hold individuals accountable for their crimes, and stress a local alternative to vigilante justice.

The debate over which approach is better, however, has been an unhelpful distraction. While details may remain under discussion, it is now a certainty that the genocidal acts of April 6-July 15, 1994 will be prosecuted by the new international tribunal and by Rwandan courts. The Rwandan trials are necessary both because of the enormous number of potential defendants--not more than one percent of whom will likely be brought before the international tribunal--and for reasons of justice and catharsis within the country. The correct question has never been whether to opt for a UN court or a Rwandan one; it is how each will function and how to coordinate their respective jurisdictions and the timing of their proceedings.

The UN Security Council resolution correctly acknowledges this need for proceeding on both levels, confirming that the "International Tribunal for Rwanda and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law...."

Jurisdiction of the International and Rwandan Tribunals: Sorting Out the Cases
The decision to allow for concurrent jurisdiction of the international tribunal and Rwandan courts makes it necessary to determine where each will place its emphasis. How should the tasks of investigation and prosecution be divided? To maximize the efficiency and effectiveness of both the domestic and international prosecutions, some coordination and understanding of their respective caseloads will be required.

The International Tribunal for Rwanda will likely follow the precedent set by the Nuremberg trials, hearing cases against the smaller number of principals responsible for the genocide. Like Nuremberg, it will focus on senior leaders of the former government, military, and the militias, and may expand the list of defendants to include representatives of other segments of Rwandan society particularly implicated in the atrocities.[3]

Officials of the new Rwandan government have estimated as many as 20,000 to 30,000 potential defendants to be tried for genocide and war crimes. These numbers can be made more manageable by classifying potential defendants into three tiers of culpability:[4]

  1. The central core--a tightly organized group of an estimated 100 to 300 persons. These were the people who planned and organized the genocide. In Kigali, this core, known as the "zero network," included many close associates of the late President Habyarimana as well as political, military, and economic elites; beyond the capital, it included regional and local relays--mayors, political party heads, and militia leaders. This first tier would likely also include the leadership of Radio de Milles Collines.
  2. Local leaders who were not part of the zero network but who were able to personally order local killings, including a number of municipal officials and administrative authorities; this second tier may comprise 1,000 to 3,000 individuals.
  3. All those who have killed, including many who were themselves victimized and were forced to kill or be killed. This last tier of culpability could far surpass the 20,000 to 30,000 number that has been mentioned by officials of the new Rwandan government.

For reasons of both practicality and policy, the international tribunal can be expected to limit its prosecutions to some portion of the first tier. The authorities at Nuremberg faced a similar dilemma in determining how far down the chain of command to focus their efforts--and with much more substantial resources than those which will be available to the Rwanda tribunal. At peak staffing in 1947, the Nuremberg proceedings required the services of nearly 900 Allied employees and about an equal number of Germans. Even with such a large-scale and costly operation, the Nuremberg trials ultimately involved the prosecution of 200 defendants, grouped into thirteen cases and lasting four years.

This limited focus for the International Tribunal for Rwanda will leave tens of thousands of additional cases for consideration by the Rwandan government, judiciary, and society. Prosecutions before Rwandan courts should focus primarily, if not exclusively, on defendants from the second tier of responsibility.

Location
[T]he seat of the International Tribunal shall be determined by the Council having regard to considerations of justice and fairness as well as administrative efficiency, including access to witnesses, and economy,... having regard to the fact that the International Tribunal may meet away from its seat when it considers it necessary for the efficient exercise of its functions;... an office will be established and proceedings will be conducted in Rwanda, where feasible and appropriate, subject to the conclusion of ... appropriate arrangements.

-- Security Council Resolution 955

The location of the seat of the tribunal and the site of its hearings have been a subject of debate among policymakers. The September 29 Commission of Experts report concluded that "for the purposes of independence, objectivity and impartiality, there are advantages in having trials conducted by an international criminal tribunal in a place such as the Hague for the very reason that there would be a certain measure of distance from the venue of the trial and the places where severe atrocities have been perpetrated."[5] Participants in the Institute conference firmly came to the opposite conclusion. While leaving the issue unresolved, the November 8 resolution leans in the right direction.

A key purpose of the UN tribunal, as described by the Commission of Experts, is unquestionably the "coherent development of international criminal law to better deter such crimes from being perpetrated in future not only in Rwanda but anywhere."[6] More immediately, however, the tribunal must provide Rwandans with a message and a visible image that justice is being done, that the atrocities in their country are being addressed within the framework of the rule of law. This very public display through the trials is vital in order to exorcise the long-entrenched culture of impunity, achieve a degree of reconciliation, stem vigilante acts of retribution, facilitate a return of the refugees to Rwanda, and deter a new round of violence. In the context of these goals, conference participants strongly believed that trials in the Hague, given the limited access to communications and media for millions of Rwandans, would not be effective. Again by way of comparison, the Nuremberg tribunals were conducted in Germany not simply as a matter of convenience, but to give them the greatest public impact in Germany--and that in a country with a communications infrastructure vastly superior to that of Rwanda.

Some observers have proposed a compromise approach, with the tribunal conducting its trials in the region but outside Rwanda. Under this scenario, the availability of UN facilities and infrastructure in Nairobi and Addis Ababa suggest these as possible locations. To have an impact on the atmosphere in Rwanda--and in the refugee camps and in Burundi--this would not be much more effective than sitting in the Hague. Most participants in the Institute conference, including Prime Minister Faustin Twagimarungu, strongly urged that the tribunal conduct its hearings in Rwanda. President Pasteur Bizimungu has recently emphasized this point as well. As stated by one participant, "It is essential that the trials be conducted in a location such that the victims of human rights abuses not feel irrelevant." In addition, on a practical level, witnesses and evidence are in Rwanda, making it a more efficient venue for the tribunal.

Should the seat of the tribunal be established in the Hague, Nairobi, or elsewhere, trials before the tribunal could and should still take place on-site in Kigali. The Rules of Procedure and Evidence governing the Yugoslavia tribunal (which, as noted, will be adopted for the Rwanda tribunal) already authorize that body's trial or appellate chamber to "exercise its functions at a place other than the seat of the Tribunal ... in the interests of justice."[7]

Security concerns need to be addressed as well. UN forces, along with the police and/or military personnel of the new Rwandan government, will have to ensure the safety of defendants, particularly senior officials who may be returned to Rwanda to stand trial before the tribunal.


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See the complete list of Institute reports. The views expressed in this report do not necessarily reflect those of the United States Institute of Peace, which does not advocate specific policies.

 


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