16 April 2014 at 2:30 AM ET edited by Kenneth Hall
JURIST Guest Columnist Fred K. Nkusi of the Independent Institute of Lay Adventists of Kigali and Mount Kenya University in Rwanda argues that the twentieth anniversary of the Rwandan genocide is a period of mourning for those lost as well as remembrance of the international community's failure to comply with its international obligations ...
On April 7, 2014, Rwanda held commemorative events for the twentieth anniversary of the 1994 Rwandan genocide against the Tutsi in Rwanda. As President Paul Kagame remarked in his speech: "we are gathered here to remember those who lost their lives in the genocide and comfort those who survived." The mourning week reminds Rwandans and the international community of the tragic events in 1994 in which a million Tutsi Rwandans—the minority ethnic group—were largely exterminated. While the brutal killings were occurring, the global community stood by idly and essentially spectated the mass slaughter, something Ban Ki-Moon—the UN Secretary-General— recently apologized for on behalf of the international community. As well known, the genocide lasted for 100 days, until the Rwandan Patriotic Front (RPF)—an opposition movement descended from Uganda—was able to fully liberate the country.
What has Rwanda done to prevent and punish the crime of genocide and ensure that it never happens again? What role does the international community play in preventing and punishing the crime of genocide? Why have some of the genocide perpetrators not yet been brought to justice?
In July of 1994, the RPF—the dominant political party currently—ended the genocide after the liberation war. This happened when the UN Assistance Mission in Rwanda (NAMIR)—supposedly established to bring Rwanda security—failed to live up to its mandate. The first remarkable victory by the RPF was to halt the widespread killings of the Tutsi by Hutus militias. Secondly, the newly installed RPF government designed, inter alia, legal and institutional mechanisms in response to the perpetration of genocide. This was empathized in President Kagame's speech: "we have pursued justice and reconciliation as best as we could. But it does not restore what we lost."
In response to the genocide, Rwanda adopted Organic Law No. 08/96 of August 30, 1996, organizing criminal proceedings against persons accused of committing acts of genocide or other crimes against humanity from October 1, 1990 through December 31, 1994, and established special benches of ordinary and military courts to hear the cases. Five years later, the government enacted Organic Law No. 40/2000 of January 26, 2001 [PDF], governing the creation of a new court system—the Gacaca Courts—to expedite the administration and reduce the costs of the proceedings. This law created a Gacaca Court at every administrative level of local government, particularly at the Cell level—the second lowest administrative unit. Both of these laws served as a lodestar to a legal and institutional framework in which justice could be brought against the perpetrators of genocide and other human rights violations.
At the closing of the Gacaca Courts in 2012, it is estimated [PDF] that the Gacaca Courts had tried nearly two million cases. However, not all genocide perpetrators were identified and punished for their crimes.
Currently, the Constitution of the Republic of Rwanda of June 4, 2003 [PDF], as amended to date, envisages in its Preamble that Rwanda is "[r]esolved to fight the ideology of genocide and all its manifestations and to eradicate ethnic, regional and any other form of divisions."
The existing Rwandan Penal Code punishes the crime of genocide and other serious international crimes. It not only punishes the crime of genocide, but also the denial of genocide. Organic law n° 01/2012/OL of 02/05/2012 [PDF] —instituting the penal code—describes the Rwandan crime of genocide in Article 114, which perfectly mirrors Article 2 of the UN Genocide Convention of 1948. Accordingly, Article 115 of the same penal code provides: "Any person, who commits, in time of peace or in time of war, the crime of genocide as provided in the preceding Article, shall be liable to life imprisonment with special provisions." Furthermore, Article 116 states:
Any person who publicly shows, by his/her words, writings, images, or by any other means, that he/she negates the genocide against the Tutsi, rudely minimizes it or attempts to justify or approve its grounds, or any person who hides or destroys its evidence shall be liable to a term of imprisonment of more than five (5) years to nine (9) years."
In view of the existing legal framework, can one say "never again" regarding genocide in Rwanda? The answer to the question transcends a mere declaration of words on paper, and a number of conditions will likely have to be met. First, there is a need for greater political will and support of the populace to live up to notion of 'never again genocide'—to prods us into action and awakens us from passivity, indifference or ignorance in order to defeat genocide once and for all. Second, law enforcement needs greater empowerment to act as a deterrent to genocide—to ensure a strict observance and promotion of human rights and the rule of law. Third, there must be an improvement in our awareness—by promoting the general and civil education of our children in schools and institutions of higher learning—that advance the understanding that the commission of genocide, or denial of a group's right to life, is the vilest encroachment upon human rights.
What is the role of the international community in preventing and punishing the crime of genocide? Without mincing my words, when I talk of the international community I specifically refer to the UN Security Council, whose primary responsibility—as enshrined in the first paragraph of Chapter V, Article 24, of the UN Charter—is to maintain or restore international peace and security. On October 5, 1993, while Rwanda's crisis was underway, the UN Security Council unanimously adopted Resolution 872 [PDF], establishing the UN Assistance Mission for Rwanda (UNAMIR) with explicit instructions of contributing to the security of the city of Kigali and monitoring the observance of the cease-fire agreement—during the transitional government's mandate—leading up to the elections. But UNAMIR lacked the precise authorization to halt the killing, along with enough contingent force to accomplish such a mission. On both issues the UN reneged to fulfill its directive until the volatile situation culminated into full-blown genocide. The failure of the international community to avert such a humanitarian catastrophe was an unforgivable betrayal in the eyes of many Rwandans.
Article 1 of the UN Genocide Convention requires signatory "[p]arties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish." The provision expressly places a legal and moral obligation on the international community to prevent and punish the crime of genocide.
According to Jacob Schiff's 2008 paper The Trouble with "Never Again!", after the Holocaust—when the Nazis conducted an exterminatory campaign against the Jews and other minority groups in Germany—the international community declared "never again," but there have been genocides and other mass atrocities in various countries since, most notably in Cambodia, Srebrenica, Rwanda, Kosovo, East Timor, Darfur and the current situation in Syria. Likewise, after the horrific episode in Rwanda, the international community was quick to declare 'genocide never again', but 'never again' persists throughout the world time and time again. Of course, it goes without saying that it is easier said than done. In fact, the international community's inaction portrays cynicism and indifference as opposed to hierocracy. The international community must stop merely paying lip service where urgent action is desperately needed.
In utter shame, the UN Security Council adopted Resolution 955 [PDF] as a response to the 1994 genocide and their subsequent inaction, which called for:
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.The International Criminal Tribunal for Rwanda ("ICTR") had jurisdiction over genocide, war crimes and crimes against humanity committed in Rwanda and neighboring countries by Rwandans within the preceding specific time frame—ratione temporis. The establishment of the ICTR was a measure to restore peace and security by forging a sense of justice; nevertheless, the UN deserves little—if any—credit precisely because it was a measure taken after failing to discharge its responsibilities in the first place. At this juncture, some of the genocide perpetrators are still shuttling around the world and have never been brought to justice. As ever disappointing Rwandans, no measures have been taken against countries harboring them. It is very likely that some of the perpetrators may go unpunished throughout the remainder of their lives. There is a general lack of genuineness by some countries to arrest the suspects or extradite them to Rwanda. Despite their dismal response to Rwanda's situation during the genocide's occurrence, today, one would laud the international community for their swift response in South Sudan, Mali and the Central African Republic (CAR), where the situations are approaching a restoration of peace and security. However, the Syrian crisis is yet another shift of the blame to the UN Security Council—which has become a dead end—where the P-5 members are safeguarding their subjective interests instead of actively resolving a dire situation.
At this particular juncture in time—as Rwandans reflect on the horrific events that occurred during the 1994 genocide—one would opine that the UN ought to revisit its legal and moral obligation outlined in its legal framework as well as the Genocide Convention of 1948.
Fred Kennedy Nkusi is a Rwandan lawyer, Lecturer and Researcher at the Independent Institute of Lay Adventists of Kigali (INILAK) and a part-time lecturer in Mount Kenya University in Kigali, Rwanda. He did his LLB at the National University of Rwanda (NUR) and received an LLM from Groningen University in the Netherlands. His areas of specialization are International Law, the law of international organizations, international criminal law and international environmental law. He is also versed in medial law and IT law.
Suggested Citation: Fred Nkusi, Rwanda marks the 1994 Genocide: is Never Again possible?, JURIST - Forum, Apr. 16, 2014, http://jurist.org/forum/2014/04/fred-nkusi-rwanda-genocide.php.
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