Abstract
In order to understand the key features of the Rwandan Genocide and the debate surrounding it, this chapter provides an overview on both the concept of genocide and its evolution in international law. The challenges posed by the protection of ethnic minorities within sovereign states are highlighted, as well as the contribution of Raphael Lemkin to the emergence of the concept of genocide in international law. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide is analysed, with particular attention to the objective and subjective element of the crime. The contribution of the jurisprudence of the international tribunals and in particular the ICTR to the interpretation of the meaning of the concept of genocide is also in the spotlight. The key features of the Rwandan genocide are discussed. Particular emphasis is placed on the role of Belgian colonization , which significantly contributed to the ‘ethnicisation’ of the categories of Hutu and Tutsi , a factor that played a major role in the violent dynamics triggered in 1994. In addition, the careful preparation of the genocide by the regime of Juvenal Habyarimana and the indifference of the international community are emphasised. Finally, the constitutional transition and the challenges that post-genocide Rwanda faced in terms of reconstruction of the rule of law and of the social fabric are highlighted, with particular emphasis on the issue of post-genocide justice.
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Notes
- 1.
See William Schabas, The Greatest Crime, Washington Times, Dec. 7, 1998.
- 2.
See Ternon 1997.
- 3.
See Schabas 2000, p. 1.
- 4.
Ibid., p. 2.
- 5.
According to Article 2 of the Genocide Convention ‘Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group’.
- 6.
There are currently 137 parties to the Convention. Among the recent signatory states are Sudan, Comoros and Bolivia. For an interesting comparison, see Schabas 2000, p. 3. The 1989 Convention for the Rights of the Child, counts 192 parties, the 1969 International Convention for the Elimination of All Forms of Racial Discrimination has 173 adherents, the 1981 Convention for the Elimination of Discrimination Against Women, 185 parties.
- 7.
On this point, see ICJ, Case Concerning Armed Activities on the territory of the Congo (Democratic Republic of the Congo v. Rwanda), Jurisdiction of the Court and Admissibility of the Application, 3 February 2006 (New Application: 2002), para 64.
- 8.
On this point, see ICJ, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement, 26 February 2007, Reports 2007, p. 43, para 161.
- 9.
See Schabas 2000, p. 18: ‘In human history, the concept of international legal norms from which no State may derogate has emerged only relatively recently. This is, of course, the story of the international protection of human rights. The prohibition of prosecution of ethnic groups runs like a golden thread through the defining moments of the history of human rights’.
- 10.
Ibid., p. 18. See, for instance, the Treaty of Peace between Turkey and Russia signed in Adrianople on 14 September 1829, BFSP XVI, p. 647, Articles V and VII; or the Treaty of Peace and Friendship between France and Great Britain signed at Utrecht on 11 April 1713, Dumont VIII, Part 1, p. 339, Article 14.
- 11.
See the 1899 Hague Convention (II) with respects to the Laws and Customs of War on Land, Preamble. The Martens Clause established that ‘Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience’.
- 12.
See the Convention (IV) Respecting the Laws and Customs of War by Land (1910), UKTS 9, annex, Article 46.
- 13.
Schabas 2000, p. 20, notes that this is the first time that the term ‘crimes against humanity’ is adopted ‘at least within an international law context’. According to Schabas ‘the expression “crimes against humanity” appears to have been in use for many years. During debates in the National Assembly, French Revolutionary Robespierre described the King, Louis XVI, as a “criminal against humanity”. In 1890, an American observer, George Washington Williams, wrote to the United States Secretary of State that King Leopold’s regime in Congo was responsible for “crimes against humanity”’.
- 14.
See Violations of the Laws and Customs of War, Reports of Majority and Dissenting Reports of America and Japanese Members of the Commission of Responsibilities, Conference of Paris, 1919, Oxford, Clarendon Press, 1919, p. 23.
- 15.
Ibid., p. 39, the Commission, in fact, reported ‘people beaten for saying “good morning” in Serbian, destruction of archives of churches and law courts, and the closing of schools’.
- 16.
See Lippman 1999, pp. 589–613.
- 17.
See Schabas 2000, p. 23.
- 18.
On this point, see Article 228 of the Versailles Treaty: ‘The German Government recognises the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war. Such persons shall, if found guilty, be sentenced to punishments laid down by law. This provision will apply notwithstanding any proceedings or prosecution before a tribunal in Germany or in the territory of her allies. The German Government shall hand over to the Allied and Associated Powers, or to such one of them as shall so request, all persons accused of having committed an act in violation of the laws and customs of war, who are specified either by name or by the rank, office or employment which they held under the German authorities’.
- 19.
On this point, see Article 230 of the Versailles Treaty: ‘The German Government undertakes to furnish all documents and information of every kind, the production of which may be considered necessary to ensure the full knowledge of the incriminating acts, the discovery of offenders and the just appreciation of responsibility’.
- 20.
See Schabas 2000, p. 24.
- 21.
See Schabas 2000, p. 26.
- 22.
Treaty of Lausanne between Principal Allied and Associated Powers and Turkey, 1923.
- 23.
See Holloway 1967, pp. 60–61, where the author holds that the failed attempt to enforce the Treaty of Sèvres ‘Resulted in the abandonment of thousands of defenceless people—Armenians and Greeks—to the fury of their persecutors, by engendering subsequent holocausts in which the few survivors of the 1915 Armenian massacres perished’.
- 24.
See Schabas 2000, p. 28.
- 25.
Advisory Opinion, 6 April 1935, PCIJ, Series A/B, No. 64, p. 17.
- 26.
See Schabas 2000, ibid.
- 27.
See Lemkin 1944, p. 79.
- 28.
See Schabas 2000, p. 25.
- 29.
Lemkin 1944, pp. XI–XII.
- 30.
Schabas 2000, p. 28.
- 31.
See Lemkin 1944, p. 90.
- 32.
Ibid., p. 90.
- 33.
Ibid., p. 95. On this point, W. Schabas comments: ‘Here Lemkin may be able to claim credit for conceiving of the fact-finding commission eventually provided for under Article 90 of Protocol Additional I to the 1949 Geneva Conventions and relating to the Protection of Victims of International Armed Conflicts, (1979) 1125 UNTS 3, that was created in 1991’. See Schabas 2000.
- 34.
Ibid., p. 93.
- 35.
Ibid., pp. 93–94.
- 36.
On this point, see “Declaration on German Atrocities”, Department of State Publication 2298, Washington: Government Printing Office, 1945, pp. 7–8.
- 37.
See UN War Crimes Commission 1944.
- 38.
See United Nations War Commission, History, p. 75.
- 39.
As the American prosecutor Telford Taylor stated, ‘none of the Nuremberg judgements squarely passed on the question whether mass atrocities committed by or with the approval of a government against a racial or religious group of its own inhabitants in peacetime constitute crimes under international law’. See Taylor 1971, pp. 224 and 226.
- 40.
Kirchheimer 1962, p. 336.
- 41.
United Nations General Assembly Resolution 96 (I): The Crime of Genocide, United Nations, 11 December 1946.
- 42.
On this point, see International Court of Justice, Advisory Opinion Legality of the Threat of Use of Nuclear Weapons, ICJ Reports 226, para 70: ‘General Assembly resolutions, even if they are not binding, may sometimes have a normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or emergence of an opinio juris. To establish whether this is true of a given Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule’.
- 43.
Schabas 2000, p. 57.
- 44.
Ibid.
- 45.
See UN Committee on the Progressive Development of International Law and its Codification 1947, p. 13.
- 46.
According to Lemkin the political group, lacking the feature of permanency, should have been excluded. See Schabas 2000, p. 61.
- 47.
- 48.
Article III of the Convention affirms: The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.
- 49.
See United Nations 1948.
- 50.
Cassese 2003, p. 100.
- 51.
Ibid.
- 52.
Ibid.
- 53.
On this point, see ICTR, Akayesu, Trial Court, 2 September 1998, Case No. ICTR-96-4-T (Akayesu 1998) §511.
- 54.
Ibid., §516: ‘Moreover, the Chamber considered whether the groups protected by the Genocide Convention, echoed in Article 2 of the Statute, should be limited to only the four groups expressly mentioned and whether they should not also include any group which is stable and permanent like the said four groups. In other words, the question that arises is whether it would be impossible to punish the physical destruction of a group as such under the Genocide Convention, if the said group, although stable and membership is by birth, does not meet the definition of any one of the four groups expressly protected by the Genocide Convention. In the opinion of the Chamber, it is particularly important to respect the intention of the drafters of the Genocide Convention, which according to the travaux préparatoires, was patently to ensure the protection of any stable and permanent group’.
- 55.
On this point, see ICJ, Liechtenstein v. Guatemala (Nottebohm Case), 6 April 1955, [1955] ICJ 1.
- 56.
See Akayesu 1998, §512.
- 57.
Ibid., §513.
- 58.
Ibid., §514.
- 59.
Ibid., §515.
- 60.
Ibid., §702. Cassese observes: ‘It would thus seem that for the Trial Chamber the question of whether or not a multitude of persons made up a group protected by the rules against genocide was primarily a question of fact: the court had to establish whether (i) those persons were in fact treated as belonging to one of those protected groups, and in addition (ii) they considered themselves as belonging to one of such groups’, (italics in the original version). See Cassese 2003, p. 101.
- 61.
On this point, see ICTR, The Prosecutor V. Clément Kayishema And Obed Ruzindana, Case No. ICTR-95-1-A, §98.
- 62.
Cassese 2003, p. 102.
- 63.
See ICTR, Rutaganda, Judgement and Sentence, 6 December 1999, ICTR-96-3-T, §56. The ICTY has shared this point of view in two cases, respectively TY, Prosecutor v. Goran Jelisić, Trial Judgement, 14 December 1999, IT-95-10-T (§§70–71) and ICTY, Prosecutor v. Radislav Krstić Appeal Judgement, 19 April 2004, IT-98-33-A (§§556–7 and 559–60).
- 64.
On this point, see Akayesu 1998, §500, where Trial Chamber I held that ‘the term “killing” used in the English version is too general, since it could very well include both intentional and unintentional homicides, whereas the term “meurtre”, used in the French version, is more precise. It is accepted that there is murder when death has been caused with the intention to do so, as provided for, incidentally, in the Penal Code of Rwanda which stipulates in Article 311 that “Homicide committed with intent to cause death shall be treated as murder”.
- 65.
Akayesu 1998, §502.
- 66.
Ibid., §505.
- 67.
Ibid., §507, Trial Chamber I also clarified that ‘measures intended to prevent births within the group may be physical but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate’ (§508).
- 68.
Akayesu 1998, §509.
- 69.
See Cassese 2003, p. 98.
- 70.
For the Syrian proposal see UN Doc. A/C6/234, incorporated in A/C6/SR.81.
- 71.
The Jorgić case was decided the Higher State Court (Oberlandsgericht) of Düsseldorf in 1997, see Cassese 2003, p. 118.
- 72.
See Akayesu 1998, §498.
- 73.
Ibid., §523.
- 74.
Krstic, Trial Chamber, August 2, 2001, para 590.
- 75.
Ntaganda 2002, p. 6.
- 76.
Ingelaere 2016, pp. 14–18.
- 77.
- 78.
See Jones 2001, pp. 15–16.
- 79.
Beside the numerically dominating Hutus (about 85% of the total population), Tutsis (14% of the population) and Twa (1% of the population) used to live together for centuries in Rwanda.
- 80.
On this point, see Melvern 2008, pp. 21–31, stating that the genocide ‘was developed and perpetrated according to a conspiracy involving the Rwandan military, the Interhamwe as well as other militia groups and the propagandists who helped to spread the genocidal ideology throughout the population. Far from being a spontaneous atrocity, the 1994 Rwandan genocide was ‘premeditated, meticulously planned and systematically perpetrated’.
- 81.
On this point, see Organization of African Unity (OAU) 2000, p. 8: ‘What the Genocide Convention badly lacks, as the secretary-general of the International Commission of Jurists explained to the Panel, is a trigger mechanism which results in firm, appropriate action that prevents such atrocities ever being perpetrated by mankind again. At present the convention is almost purely reactive, in effect only providing for action after the crime has been committed, by which time it is too late for the victims and, indeed, for humanity in general’.
- 82.
On the role that the Rwandan genocide played in the development of the theory of the responsibility to protect, see Welsh 2008, pp. 333–350.
- 83.
OAU 2000, p. 12.
- 84.
Ibid., paras 2.1, 2.2 and 2.3, p. 11.
- 85.
‘The reliable traditions come to light from the mist and from the bricolage of the earlier legends’, translation by the author. See Vansina 2001.
- 86.
See Digneffe and Fierens 2002, p. 9.
- 87.
Fujii 2009, p. 180.
- 88.
Ibid., p. 12: ‘From that point, a powerful head of a centralized state provided firm direction to a series of subordinate structures that were ethnically differentiated under Tutsi domination. And while there was no known violence between the Tutsi and the Hutu during those pre-colonial years, the explicit domination of one group and the subordination of the other could hardly have failed to create antagonism between the two’.
- 89.
Ibid., p. 11: ‘Even today, after all the carnage, one historian estimates that at least 25% of Rwandans have both Hutu and Tutsi among their eight great-grandparents. Looking back even further, the percentage with mixed ancestry would most likely exceed 50%. These conclusions are inconsistent with the preferred Hutu version of history, which asserts that the Tutsi were treacherous foreign conquerors who had rejected and oppressed the Hutus since time immemorial’.
- 90.
Ibid., para 2.10, p. 13: ‘The theory was based both on the appearance of many Tutsi—generally taller and thinner than were most Hutu—and European incredulity over the fact that Africans could, by themselves, create the sophisticated kingdom that the first white men to arrive in Rwanda found there. (…) They [the Tutsi] were considered more intelligent, more reliable, harder working, and more like whites than the “Bantu” Hutu majority. The Belgians appreciated this natural order of things so greatly that, in a series of administrative measures between 1926 and 1932, they institutionalized the cleavage between the two races (race being the explicit concept used at the time before the milder notion of ethnicity was introduced later on), culminating in identity cards that were issued to every Rwandan, declaring each to be either Hutu or Tutsi. This card system was maintained for over 60 years and, in a tragic irony, eventually became key to enabling Hutu killers to identify during the genocide the Tutsi who were its original beneficiaries’.
- 91.
Ibid., para 2.12.
- 92.
Ibid., para 2.13: ‘The ramifications of the Belgian system could hardly have been clearer. Between 1932 and 1957, for example, more than three-quarters of the students in the only secondary school in the small city of Butare were Tutsi. Ninety-five per cent of the country’s civil service came to be Tutsi. Forty-three out of 45 chiefs and all but 10 of 559 sub-chiefs were Tutsi’.
- 93.
On the trial of Atanase Seromba before the ICTR trial Chamber see Human Rights Watch 2010, p. 10: ‘Athanase Seromba was a priest in Nyange parish, Kivumu commune in Kibuye prefecture. The Trial Chamber convicted him of aiding and abetting genocide and extermination as a crime against humanity for his role in the bulldozing and destruction on April 16, 1994, of the Nyange parish church holding over 1,500 Tutsi who had sought refuge there. The Trial Chamber sentenced him to 15 years’ imprisonment. The Appeals Chamber reversed the convictions of aiding and abetting regarding destruction of the church and instead convicted him of genocide and extermination as a crime against humanity; as to two other killings, it affirmed the conviction of aiding and abetting genocide. The Appeals Chamber sentenced Seromba to life in prison’.
- 94.
OAU 2000, paras 2.16–2.17.
- 95.
Ibid., para 2.19: ‘The fact that just two Tutsi clans among many were privileged by colonial rule points to a central truth of Rwanda: It has never been valid to imply that a homogeneous Tutsi or Hutu community existed at any time’.
- 96.
See Prunier 1997, p. 45.
- 97.
See OAU 2000, para 3.14: ‘Before these incursions ceased, 20,000 Tutsi had been killed, and another 300,000 had fled to the Congo, Burundi, Uganda, and what was then called Tanganyika. The nature of the reprisal attacks changed. Hutu government officials (senior officials were all Hutu) began accusing all Tutsi of being accomplices of the raiders. All Tutsi, in any event, were considered foreign invaders and, accordingly, all became fair game for the slaughters of these years; significantly, this included women and children. In that sense, as an aggressive and exclusivist Hutu solidarity was consciously being forged in opposition to these despised outsiders, we can see another building block in the long road to genocide. Indeed, the massacres briefly caught the attention of the outside world and were condemned as genocidal by such prominent western dissidents as philosophers Bertrand Russell in England and Jean-Paul Sartre in France’.
- 98.
See Bornkamm 2012, pp. 13–14.
- 99.
See Uvin 1998, p. 33.
- 100.
In spite of the fact that she is considered one of the masterminds of the genocide, Agathe Habyarimana was long hosted and protected in France before being put on trial in 2010.
- 101.
On this point, see OAU 2000, p. 34: ‘Even those sympathetic to the invaders’ cause acknowledge that the attack triggered a series of pivotal consequences that ultimately led, step by step, to the genocide. In the words of one human rights group, “…it is beyond dispute that the invasion …was the single most important factor in escalating the political polarization of Rwanda’.
- 102.
See des Forges 1999, pp. 692–735.
- 103.
See OAU 2000, p. 49: ‘In the end, the process could not resolve the greatest problem of all. That was the tragic irony of Arusha: the massacres against the Tutsi civilians were not directly addressed during the long months of negotiations in Tanzania, yet at the very same time in Rwanda, Hutu Power’s massacres continued, prompted by the fear that the Arusha process might succeed and deliver genuine power sharing’.
- 104.
On this point, see OAU 2000, para 7.18.
- 105.
In detail the Hutu Commandments stated that: ‘1. Every Hutu should know that a Tutsi woman, whoever she is, works for the interest of her Tutsi ethnic group. As a result, we shall consider a traitor any Hutu who—marries a Tutsi woman—befriends a Tutsi woman—employs a Tutsi woman as a secretary or a concubine. 2. Every Hutu should know that our Hutu daughters are more suitable and conscientious in their role as woman, wife and mother of the family. Are they not beautiful, good secretaries and more honest? 3. Hutu women, be vigilant and try to bring your husbands, brothers and sons back to reason. 4. Every Hutu should know that every Tutsi is dishonest in business. His only aim is the supremacy of his ethnic group. As a result, any Hutu who does the following is a traitor: (1) makes a partnership with Tutsi in business; (2) invests his money or the government’s money in a Tutsi enterprise (3) lends or borrows money from a Tutsi; (4) gives favours to Tutsi in business (obtaining import licenses, bank loans, construction sites, public markets, etc.). 5. All strategic positions, political, administrative, economic, military and security should be entrusted only to Hutu. 6. The education sector (school pupils, students, teachers) must be majority Hutu. 7. The Rwandan Armed Forces should be exclusively Hutu. The experience of the October 1990 war has taught us a lesson. No member of the military shall marry a Tutsi. 8. The Hutu should stop having mercy on the Tutsi. 9. The Hutu, wherever they are, must have unity and solidarity and be concerned with the fate of their Hutu brothers. The Hutu inside and outside Rwanda must constantly look for friends and allies for the Hutu cause, starting with their Hutu brothers. They must constantly counteract Tutsi propaganda. The Hutu must be firm and vigilant against their common Tutsi enemy. 10. The Social Revolution of 1959, the Referendum of 1961, and the Hutu Ideology, must be taught to every Hutu at every level. Every Hutu must spread this ideology widely. Any Hutu who persecutes his brother Hutu for having read, spread, and taught this ideology is a traitor.’
- 106.
See des Forges 1999, p. 71.
- 107.
On this point, see ICTR, Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze v. The Prosecutor, Judgment of the International Criminal Court for Rwanda, 3 December 2003, Case No. ICTR-99-52T; ICTR, Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze v. The Prosecutor, Judgment of the Appeals Chamber, 28 November 2007, Case No. ICTR-99-52-A, Judgment of the Appeals Chamber of 28 November 2007. An important precedent stressing the role of the media in the violation of international law was established in 1946 when Julius Streicher, editor-in-chief of the anti-semitic newspaper Der Stürmer was convicted by the International Military Tribunal at Nuremberg. See International Military Tribunal, Judgment of the International Military Tribunal for the Trial of the German Major War Criminals, 30th September and 1st October, Cmd 6964. See also Della Morte 2005.
- 108.
OUA 2000, para 7.4. At para 7.5, the report stresses that ‘Many hoped that these crucial issues would be illuminated at the International Criminal Tribunal for Rwanda, set up after the genocide to try senior figures accused of genocide. And indeed, the tribunal has concluded that genocide had been planned and organized in advance, but with no more precision than that’.
- 109.
See the Report of the International Commission of Inquiry into Human Rights Abuse in Rwanda, March 1993.
- 110.
See UN Commission on Human Rights 1994.
- 111.
Bornkamm 2012, p. 17.
- 112.
Ingelaere 2016, p. 17.
- 113.
See Gourevitch 1998.
- 114.
Ibid.
- 115.
OAU 2000, para 9.1, p. 53.
- 116.
See Feil 1998.
- 117.
OAU 2000, para 16.3, p. 141: ‘The extremist newspaper Kangura, which frequently ran pornographic cartoons featuring Tutsi women, explained: “The inkotanyi [members of the RPF] will not hesitate to transform their sisters, wives, and mothers into pistols to conquer Rwanda”. The conclusion was irresistible: Only when no Tutsi women were left could Hutu men be safe from their wicked wiles’.
- 118.
Ibid., para 16.4, p. 145.
- 119.
Ibid., para 16.17, p. 148.
- 120.
Ibid., para 16.20, p. 149.
- 121.
In 1994, rape was a crime under Article 360 of the 1977 Rwandan Criminal Code, punishable by five to 10 years of imprisonment.
- 122.
On this point, see Committee on the Rights of the Child, Consideration of Reports submitted by the States Parties under Article 44 on the Convention, CRC/C/15/Add.234, 1 July 2004: ‘The Committee notes that the genocide which occurred in 1994 has long-term negative consequences on the implementation of the Convention and that the lives of all children have been seriously affected during that event and its aftermath. The Committee also notes that, since the Convention was ratified there has been a serious deterioration in the socio-economic conditions in the Stare party, aggravated by the genocide’.
- 123.
See Halmai 2017, p. 7: ‘Huntington gives the following guidelines for democratizers dealing with authoritarian crimes: (a) If replacement (revolution) occurred and it is morally and politically desirable, prosecute the leaders of the authoritarian regime promptly … while making clear that you will not prosecute middle- and lower-ranking officials. (b) If transformation or transplacement occurred, do not attempt to prosecute authoritarian officials for human rights violations, because the political costs of such an effort will outweigh any moral gains. (c) Recognize that on the issue of “prosecute and punish versus forgive and forget”, each alternative presents grave problems, and that the least unsatisfactory course may well be: do not prosecute, do not punish, do not forgive, and above all, do not forget’.
- 124.
Ibid.
- 125.
Ingelaere 2016, p. 17.
- 126.
See Vandeginste 1999.
- 127.
The Arusha Accord consists of 7 different agreements and protocols negotiated in different moments.
- 128.
The Protocole relative àl’État de droit, signed in Arusha on August 18, 1992 by the Rwandan Government and by the Rwandan Patriotic Front, was part of the Arusha Peace Agreement signed in 1994. The former established under Article 1 that national unity had to be based on the respect of human rights as defined in both the 1948 Universal Declaration of Human Rights as well as in the African Charter on Human and Peoples’ Rights, which embody several guarantees in terms of fair trial standards (for more details see the chapter on gacaca courts and fair trial standards). The 5th Chapter of the Protocol, entitled “Droits de l’Homme”, further recognized the universal nature of the human rights and allows the international community to monitor violations taking place on Rwandan soil.
- 129.
On this point, see Haile 2008: ‘Up until then the Rwandan Constitutional Law was a curious amalgam of various instruments permitting the selective application of favourable provisions’.
- 130.
Vandeginste 1999.
- 131.
See the Protocole relative àl’État de droit, Article 16.
- 132.
On this point, see Haile 2008: ‘The RPF had to make a difficult decision, upon assuming political power. It had to either risk losing political power by respecting its pledge to form a genuinely power-sharing government and organize free and fair elections, or renegade on its pledge in order to assure its dominance for the foreseeable future. Having fought and won a bitter war to seize the state power and pursue their founding objective on their own terms, the RPF leaders had little internal or external incentives for pursuing a political process that would force them to share power with the attendant risk of relinquishing it altogether’.
- 133.
- 134.
See Article 3(1) of the Rwandan Constitution amended by Article 1 of the Amendment N. 2 of 8 December 2005.
- 135.
See Bornkamm 2012, p. 21.
- 136.
See UN High Commissioner for Refugees 1998.
- 137.
See UN General Assembly 2000, para 14.
- 138.
On this point see Mission d’Observation Electorale de l’EU Rwanda, 2003, Rapport Final sur l’élection présidentielle et les élections législatives.
- 139.
See Du Bois de Gaudusson et al. 1997.
- 140.
See Preamble of the 2003 Rwandan Constitution: ‘We, the People of Rwanda, In the wake of the genocide that was organized and supervised by unworthy leaders and other perpetrators and that decimated more than a million sons and daughters of Rwanda; Resolved to fight the ideology of genocide and all its manifestations and to eradicate ethnic, regional and any other form of divisions; Determined to fight dictatorship by putting in place democratic institutions and leaders freely elected by ourselves; Emphasizing the necessity to strengthen and promote national unity and reconciliation which were seriously shaken by the genocide and its consequences; Conscious that peace and unity of Rwandans constitute the essential basis for national economic development and social progress; (…) Now hereby adopt, by referendum, this Constitution as the supreme law of the Republic of Rwanda’.
- 141.
Article 9 of Rwanda’s Constitution affirms: ‘The State of Rwanda commits itself to conform to the following fundamental principles and to promote and enforce the respect thereof: fighting the ideology of genocide and all its manifestations; eradication of ethnic, regional and other divisions and promotion of national unity; equitable sharing of power; building a state governed by the rule of law, a pluralistic democratic government, equality of all Rwandans and between women and men reflected by ensuring that women are granted at least 30% of posts in decision making organs; building a State committed to promoting social welfare and establishing appropriate mechanisms for ensuring social justice; the constant quest for solutions through dialogue and consensus’.
- 142.
Article 11 of Rwanda’s Constitution states: ‘All Rwandans are born and remain free and equal in rights and duties. Discrimination of whatever kind based on, inter alia, ethnic origin, tribe, clan, colour, sex, region, social origin, religion or faith, opinion, economic status, culture, language, social status, physical or mental disability or any other form of discrimination is prohibited and punishable by law’.
- 143.
Article 13 of Rwanda’s Constitution affirms: ‘The crime of genocide, crimes against humanity and war crimes do not have a period of limitation. Revisionism, negationism and trivialisation of genocide are punishable by the law’.
- 144.
Article 33 of Rwanda’s Constitution affirms: ‘Freedom of thought, opinion, conscience, religion, worship and the public manifestation thereof is guaranteed by the State in accordance with conditions determined by law. Propagation of ethnic, regional, racial or discrimination or any other form of division is punishable by law’.
- 145.
These include the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965; the International Convention on Civil and Political Rights of 19 December 1966; the International Covenant on Economic, Social and Cultural Rights of 19 December 1966; the Convention on the Elimination of all Forms of Discrimination against Women of 1 May 1980; the African Charter on Human and Peoples’ Rights of 27 June 1981; and the Convention on the Rights of the Child of 20 November 1989.
- 146.
It is worth noting that in September 2008 Rwanda’s parliamentary election saw women win 45 of the 80 seats.
- 147.
Article 54 of Rwanda’s Constitution states: ‘Political organizations are prohibited from basing themselves on race, ethnic group, tribe, clan, region, sex, religion or any other division which may give rise to discrimination. Political organizations must constantly reflect the unity of the people of Rwanda and gender equality and complementarity, whether in the recruitment of members, putting in place organs of leadership and in their operations and activities’.
- 148.
Article 178 of Rwanda’s Constitution.
- 149.
Article 179 of Rwanda’s Constitution.
- 150.
Article 7 of the Rwandan Constitution affirms that ‘Rwandans or their descendants who were deprived of their nationality between 1st November 1959 and 31 December 1994 by reason of acquisition of foreign nationalities automatically reacquire Rwandan nationality if they return to settle in Rwanda. All persons originating from Rwanda and their descendants shall, upon their request, be entitled to Rwandan nationality’.
References
Bornkamm P (2012) Rwanda’s Gacaca Courts: Between Retribution and Reparation. Oxford University Press, Oxford/New York
Cassese A (2003) International Criminal Law. Oxford University Press, Oxford
Della Morte G (2005) De-Mediatizing the Media Case: Elements of a Critical Approach. Journal of International Criminal Justice 3(4):1019–1033
des Forges AL (1999) “Leave none to tell the story”: genocide in Rwanda. Human Rights Watch, New York
Digneffe F, Fierens J (2002) (eds) Justice et gacaca. L’expérience rwandaise et le génocide. Presses Universitaires de Namur, Belgium
Du Bois de Gaudusson J et al (1997) Les constitutions africaines. Bruylant, Brussels
Feil SR (1998) Preventing Genocide: How the Early Use of Force Might Have Succeeded in Rwanda. Carnegie Commission on Preventing Deadly Conflict, Washington, D.C.
Fujii LA, (2009) Killing Neighbours: Web of Violence in Rwanda. Cornell University Press, Ithaca
Gourevitch P (1998) We Wish to Inform You That Tomorrow We Will Be Killed with Our Families. Picador, New York
Haile D (2008) Rwanda’s Experiment in People’s Courts (gacaca) and the Tragedy of Unexamined Humanitarianism: A Normative/Ethical Perspective. Institute of Development Policy and Management, University of Antwerp
Halmai G (2017) The Role of Constitutionalism in Transitional Justice Processes in Central Europe. https://www.eui.eu/Documents/DepartmentsCentres/Law/Professors/Halmai/Constitutions-and-TJ.pdf. Last accessed 27 February 2016
Holloway K (1967) Modern Trends in Treaty Law. Stevens & Son, London
Ingelaere B (2016) Inside Rwanda’s Gacaca Courts, The University of Wisconsin Press, Madison
Jones B (2001) Peacemaking in Rwanda. The Dynamics of Failure. Lynne Rienner Publishers, Boulder, Colorado
Kirchheimer O (1962) Political Justice: The Use of Legal Procedure for Political Ends. Princeton, NJ
Lemkin R (1944) Axis Rule in Occupied Europe, Laws of Occupation, Analysis of Government, Proposals for Redress. Carnegie Endowment for World Peace, Washington DC
Lippman M (1999) Genocide. In: Bassiouni MC (ed) International Criminal Law (2nd edn.). Transnational Publishers, Ardsley, New York
Melvern L (2008) The past is prologue: Planning the 1994 Rwandan genocide. After genocide: Transitional justice, post-conflict reconstruction and reconciliation in Rwanda and beyond. Hurst and Company, London
Ntaganda E (2002) Editorial. Peuplement du Rwanda. Enjeux et Perspectives, Cahiers du Centre de Gestion des Conflits 5. Butare, Rwanda
Organization of African Unity (2000) Rwanda: The Preventable Genocide, Report of the International Panel of Eminent Personalities (IPEP), http://www.refworld.org/pdfid/4d1da8752.pdf. Last accessed 27 February 2018
Prunier G (1997) The Rwanda Crisis, History of a Genocide. Columbia University Press, New York
Schabas W (2000) Genocide in International Law. Cambridge University Press, Cambridge
Straus S (2006) The Order of Genocide: Race, Power, and War in Rwanda. Cornell University Press, Ithaca
Straus S, Waldorf L (2011b) Seeing Like a Post-Conflict State. In: Remaking Rwanda: State Building and Human Rights after Mass Violence, Straus S and Waldorf Lars (eds), University of Wisconsin Press, Madison
Taylor T (1971) Final Report to Secretary of the Army on the Nuremberg War Crimes Trials Under Control Council Law No. 10. Government Printing Office, Washington DC
Ternon Y (1997) Lo stato criminale, Il Corbaccio. Milan
UN Ad Hoc Committee on Genocide (1948a) Draft Convention on the Prevention and Punishment of the Crime of Genocide UN Document E/AC. 25/12
UN Ad Hoc Committee on Genocide (1948b) Report of the Committee and draft Convention drawn up by the Committee UN Document E/794
UN Commission on Human Rights (1994) Report by Mr. B.W. Ndiaye, Special Rapporteur, on his mission to Rwanda from 8 to 17 1993 E/CN.4/1994/7/Add.1
UN Committee on the Progressive Development of International Law and its Codification (1947) Summary record of the 28th Meeting UN Document A/AC.10/SR.28
UN General Assembly (1948) Ninety fifth meeting (6th Committee, 3rd session) UN Document A/C.6/SR.95
UN General Assembly (2000) Fifty-fifth Session, Item 116c, Report A/55/318
UN High Commissioner for Refugees (1998) UNHCR CDR Background Paper on Refugees and Asylum Seekers from Rwanda. http://www.refworld.org/docid/3ae6a63f8.html. Last accessed 28 February 2018
UN War Crimes Commission (1944) Draft Convention for the Establishment of a United Nations War Crimes Court, UN Document C.50 (1)
Uvin P (1998) Aiding Violence: The Development Enterprise in Rwanda. Kumarian Press, Bloomfield
Vandeginste S (1999) Justice, Reconciliation and Reparation after Genocide and Crimes against Humanity: The proposed Establishment of Popular Gacaca Tribunals in Rwanda, All-Africa Conference on African Principles of Conflict Resolution and Reconciliation. United Nations Conference Centre, Addis Ababa
Vansina J (2001) Central Africans and Cultural Transformations in the American Diaspora. Cambridge University Press, Cambridge
Welsh JM (2008) The Rwanda Effect: Development and Endorsement of the ‘Responsibility to Protect’. In: Clark P, Kaufman ZD (eds) After Genocide. Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond. Hurst and Company, London
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Sullo, P. (2018). The Crime of Genocide and Its Contextual Features in Rwanda. In: Beyond Genocide: Transitional Justice and Gacaca Courts in Rwanda. International Criminal Justice Series, vol 20. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-240-8_2
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