International Criminal Tribunal for Rwanda in Arusha, Tanzania

Greetings from Arusha, Tanzania, where I am interning at the United Nations International Criminal Tribunal for Rwanda (ICTR).

For my first blog, I am posting a summary I have written to provide a little background information on the history of Rwanda, the buildup to the genocide, and the creation and work of the ICTR.

Historical Context of the 1994 Violence in Rwanda

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In order to understand the violence of 1994, during which about 800,000 Tutsi and moderate Hutu were systematically massacred in less than 100 days, it is essential to understand the historical buildup to this violence and the labyrinth of social, political and economic forces that shaped Rwanda’s journey from colonization to independence, from one form of autocratic rule to another. Especially key is the racialization of Rwandan society under colonial rule, and its extension after independence in the 1st and 2nd Republics, contributing to waves of ethnic tension and violence starting in 1959 and culminating in 1994.

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When Europeans first came upon pre-colonial society in Rwanda, they observed its composure primarily of two different groups, the same two which compose its society today: the majority Hutu, and the Tutsi. Society was organized by a divine kingship traditionally dominated by Tutsi, yet several Hutu principalities remained. Traditionally, there was a great degree of fluidity between the two groups, who share the same land, culture and language. The groups have historically been in most regards similar, although not necessarily equal, and one could move between these categories through marriage or acquisition of wealth.

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German colonization in Rwanda officially began in 1899. The 1919 League of Nations mandate made the transfer of power to Belgian colonial rule effective. As had the Germans, the Belgians preferred the Tutsi, who were regarded to have more European features than the Hutu. With their support, the Tutsi were able to enhance their control over the population, and rework the social and economic systems in their favor. The consolidation of such a system of ethnic division was allowed for through the colonizers’ “ideological construction of Rwanda’s past, and … present” based on a racist ideology that legitimized the Tutsi superiority over the Hutu as natural, scientific and traditional.[1] This ideology lies at the core of the racialization of Rwanda and of the violence that has plagued the country in intervals since 1959.

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Social and economic changes came in the wake of World War II, and the Tutsi elite began to push for liberalizing reforms, contesting the colonial order in a growing bid for independence. This led to a shift in favor during the last years of colonial rule, and the Church, which had been dominated by Tutsi, as well as the Belgians began to foster a “Hutu counter-elite” which gradually came into formation protesting their position of subordination. The creation of political parties in the late 1950s contributed to such racial tensions, culminating in the looting and violence of November 1959. This incident proved Belgium’s alliance had shifted to the Hutu, and prompted a move towards self-rule in Rwanda.
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Communal elections were set in the summer of 1960 and the Hutu won a landslide victory; “under the banner of ‘democratic majority rule’ on one side and ‘immediate independence’ on the other, it was a fight between two competing elites, the newly developed Hutu counter-elite produced by the church and the older neo-traditionalist Tutsi elite which the colonial authorities had promoted since the 1920s.”[2] As Tutsi chiefs were replaced with Hutu, around 130,000 Tutsi fled the country to cross into neighboring states in the early 1960s. The so called “revolution,” closely administered by the Belgians, could really be seen more as a power trade-off from the Tutsi to the Hutu, who picked up the reigns of oppression over the Tutsi much as had been done to them before. The monarchy was soon abolished. After Gregoire Kayibanda’s “legal coup” in January 28, 1961, the Belgians granted formal independence to the Republic of Rwanda in July of that year, solidifying the 1959 revolution and the formation of the 1st Republic. An ethnic quota policy was kept in all institutions, including schools, universities, the civil service, and private business, to ensure that the Tutsi, who represented only 9%, of the population, would not represent more than that percentage in any institution.

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Attacks on Rwanda from exiled Tutsi groups continued, culminating in the invasion of Bugesera from Burundi in December 1963, which was quickly crushed but contributed to a massive wave of repression and slaughter of Tutsi. By January 1964, 10,000 were killed and the remaining Tutsi politicians in the country were put to death. A decade later, unrest among the elite, and the killings of Hutu by the Tutsi government in Burundi scared the government, which responded by cracking down in late 1972 and early 1973 on enforcement of the ethnic quota policy in all institutions by establishing vigilante committees which often stood to gain from pushing Tutsi out of jobs.

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New waves of ethnic tension, Tutsi emigration, peasant unrest, and elite frustration over the country’s immobility and isolation, cleared the way for Major-General Juvenal Habyarimana on July 5, 1973 to take power in a bloodless coup marking the start of the 2nd Republic, which would be marked by single-party oppressive authoritarian rule and the continued equation of democracy with demographically justified power. Eventually, shrinking resources due to the fall of coffee prices and the collapse of tin mining in the late 1980s led to increased competition among the elite for political power to enable access to foreign aid funding, and political clan rivalries ensued. Meanwhile, unrest among the heavily taxed and worked peasants was generated by the deep 1989 budget cut that took away from social services. With the rising population and shrinking food supply, the peasant class grew more and more dissatisfied with the situation of land distribution in the country, which was one of the most population dense in the world.

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By the time of Habyarimana’s announcement of support for a multi-party system in 1990, prompting the mobilization of various groups, the Rwandan scene of politics had plunged into calamity. The Tutsi Rwandese refugees in Uganda who had formed the Rwandese Alliance for National Unity, later to be replaced by the Rwandese Patriotic Front (RPF) in exile, a politically militant group aimed at securing their return, took advantage of the apparently fragile political context and revved up their plans to invade. By October 1990 they made their strike, marking the start of the civil war between the RPF and the Rwandan Government Forcers (FAR).
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Peace negotiations arranged by regional and international forces resulted in the Arusha Accords signed in August 1993. The agreement set out to establish the rule of law through a power-sharing pact that would allow for repatriation of refugees and integration of the armed forces. These conditions, however, were regarded as threatening to the ruling regime, which feared its power was slipping away. The accords were not implemented and the situation did not improve in Rwanda, in part due to elements on both sides of the conflict desirous to bypass power-sharing.

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When President Habyarimana’s plane was shot down on its return to Kigali from discussions about the accords in Burundi on April 6, 1994, forces behind the genocide were unleashed. The assassination of the President was immediately followed by the murder of several moderate targets within the ruling bloc and of the political opposition, and the massacre of Tutsi and moderate Hutu civilians by elements of armed forces and interahamwe militias. The mass killing, rape, and violence were the product of a planned attempt by Hutus in the political and military establishment to eliminate their “opponents” entirely. Within two days, the entire government had been replaced with Hutu extremists. The RPF re-launched its military campaign under the direction of Major General Paul Kagame to end the killing of Tutsi and to take over the capital. The RPF ultimately succeeded in taking over Kigali roughly two months later, on July 4, 1994, thereafter establishing the Government of National Unity on July 19, 1994.
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In only three months, between 500,000 to one million victims were claimed, mostly Tutsi- possibly as many as three quarters of the entire Tutsi population- but also some moderate Hutu. In order to combat the Hutu forces that continued their attacks into Rwanda over the next years led by the some of the hundreds of thousands of Hutu, militias, and FAR soldiers which fled to Zaire (now the DRC) after the RPF capture of Kigali, the RPF intervened in Zaire on two separate occasions. These interventions have contributed to fighting throughout the region of the Great Lakes. This fighting occurred as attempts were made at re-education and reintegration of combatants, establishment of truth and justice through local, national, and international avenues, and reconstruction of a war torn country, economy, politics, and society.
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International Reaction to the Rwandan Genocide and Legal Classification of the Crimes Committed
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The slaughter of roughly 800,000 Tutsi and moderate Hutu by militias, parts of the army, and the local population between April 6 and mid-July, 1994 was met with a lethargic reaction by the international community, which wrangled over the application of the term “genocide” while hundreds were brutalized, raped, and murdered each day. The UN Secretary General publicly made the distinction between civil war and the “massacre of civilians” on April 29, 1994, and not until June 8 did the UN Security Council issue a resolution acknowledging “acts of genocide,” although not necessarily “genocide,” in Rwanda. By June 28, 1994, the UN Commission on Human Rights’ Special Rapporteur on Rwanda presented his report on the situation, and, drawing on Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (UNGC), he claimed that such conditions were met so as to constitute genocide. The application of the UNGC to the situation in Rwanda was done with much delay, and it proved to be a complex and controversial process.
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While the violence in Rwanda was in part the product of a civil war, and of two competing groups of elites’ refusal to give away or share power in any type of agreement, the political application of the term genocide, as opposed to civil war, insurgency, or revolution, has been consistently made by the New National Unity Government led by the RPF, with this recognition resounding around the world led by the West.
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The intentional, planned, and widespread killing of civilians in Rwanda during a period of armed conflict may be classified as war crimes, as defined under Article 8 of the Rome Statute of the International Criminal Court 37 I.L.M. 999 (1998), and Article 3 common to the Geneva Conventions of August 12, 1949 for the Protection of War Victims and Additional Protocol II thereto of June 8, 1977. The systematic and widespread rape, torture, murder, and persecution of the Tutsi in particular as a group, on political and ethnic grounds, as part of a systematic and planned attack on civilian populations also demands the classification of crimes against humanity. While the violence perpetuated by the RAF was of course far greater in scale and intent, the violence perpetuated by the RPF may also classify as crimes against humanity.

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The importance of the label genocide is that it goes beyond the targeting of a particular group which constitutes a crime against humanity, to cover such targeting with the intent to exterminate such group. The UNGC was adopted by Resolution 260 (III) A of the UN General Assembly on December 9, 1948, making genocide a crime under international law. According to Article II of the 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: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group."
The convention declares that anyone who commits, conspires to or attempts to commit, incites others to commit, or is complicit in genocide shall be punished, “whether they are constitutionally responsible rulers, public officials or private individuals,” in either a State tribunal in the place the acts where committed or in an international penal tribunal. Both Rwanda’s national legislation regarding genocide and the ICTR use the UNGC’s definition. Case law from the ICTR has since established that rape may be an act of genocide when it is committed with intent to destroy one of the protected groups stated in Article II.
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The ICTR, in its decision of its first trial involving the prosecution of Jean Paul Akayesu, former mayor of Taba commune and the first person ever to be convicted of, among other crimes, rape as genocide, took the opinion that the violence in Rwanda indeed went beyond that of a civil war, to constitute not only war crimes and crimes against humanity, but also genocide on behalf of the RAF forces and its militias. The ICTR decision stated that “there is no doubt that considering their undeniable scale, their systematic nature and their atrociousness, the massacres were aimed at exterminating the group that was targeted.” In other words, the 1994 massacres did not “occur solely within the context of the conflict between the RAF and the RPF” but rather that “the genocide did indeed take place against the Tutsi group, alongside the conflict.”[3]
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Prosecution of the Rwandan Genocide through Criminal Law

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The prosecution of the Rwandan genocide has allowed for international courses of justice to be run, while incorporating efforts to achieve justice on a national level, in both traditional and inventive ways.
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On the international level, the UN Security Council established the ICTR by Resolution 955 of November 8, 1994, acting under UN Charter Chapter VII. The ICTR was established for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda, or by Rwandans in the region, between January 1, 1994 and December 31, 1994. It is important to note that serious violations of humanitarian law and crimes against humanity committed both by the RAF and by the RPF, as well as the crime of genocide committed by RAF’s forces, are justiciable under the ICTR.

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The stated aim of the ICTR is to aid national reconciliation and ensure the rule of law, making sure such violations are stopped and redressed, thereby contributing to peace in the region. The ICTR is the second ad hoc tribunal in the world, and has since been responsible for the first genocide-related convictions ever made in an international court. Furthermore, the ICTR has played a key role in the development of international criminal justice, and has contributed to the groundwork for the development of the International Criminal Court.

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In addition to the cases prosecuted by the ICTR, genocide-related cases are also prosecuted at a national level in Rwanda through both the traditional court system as well as through a new gacaca system. The gacaca system is based on the Rwandan tradition of community conflict resolution. It was developed to address the genocide on a massive scale beyond the country’s traditional justice system, which has been hindered by its very limited resources and overwhelmed by the massive population of suspected killers and prisoners, which at one point constituted over half of the country’s adult male population. The most serious offenders, as determined by Rwandan law, are either tried in the ICTR or the traditional national court system. The lower-level offenders are tried through the gacaca system, which aims to abolish the culture of impunity and speed up the process reconciliation through participative justice incorporating local populations in the judgment of participants of the 1994 violence.
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Importance of the ICTR and Establishment of International Criminal Justice and Legal Accountability in the Wake of the Rwandan Genocide
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The naming of the crime of genocide in the aftermath of the 1994 violence in Rwanda and the subsequent prosecution of individuals in criminal trials has re-created the past in a sense, and has given the international community a chance to establish and enforce the boundaries of international law. While there is both the risk that criminal trials may lessen combatants’ or leaders’ willingness to concede power out of fear that amnesties are unreliable, or that in some cases efforts to achieve justice may exacerbate tensions within a fragile political situation, thereby worsening the condition of human rights, the hope is that criminal trials will help to establish norms and expectations of punishment, making an example for current and future leaders in the country and beyond. While arguments calling for peace over justice may be forceful, one must only recall Hitler’s question “Who, after all, speaks today of the annihilation of the Armenians?” to observe the potential consequences of failure to pursue justice in the face of gross violations; for the Rwandan Hutu government, the international silence that met the 1972 slaughter of Hutu in Burundi may have taught them a similarly tragic lesson of impunity.[4]
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The role of the ICTR is especially important given that it represents the first time that high-ranking individuals have been held accountable in an international court for mass human rights violations in Africa, and the first time that that a head of government has been convicted of genocide anywhere in the world. The standard-setting and abolishment of a culture of impunity that the ICTR has contributed to has helped enable national reconstruction, as well as the restoration of the rule of law to a war-ravaged zone, and thus helps to enable national reconstruction.
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The ICTR: Past, Present, and Future
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The ICTR is headquartered in Arusha, Tanzania. It is composed of three organs: The Chambers, including three Trial Chambers and the Appeals Chamber, which hear trials, the Office of the Prosecutor, responsible for investigations and prosecutions, and the Registry, responsible for judicial and administrative support. Cases before the ICTR are heard at first instance by a Trial Chamber of three international temporary or permanent judges, and, if appealed, by the Appeals Chamber of five international permanent judges.
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To date, 50 cases have been completed at the ICTR, including eight acquittals and eight cases pending appeal. Completed trials include those of the former Prime Minister, and several political and military leaders. These cases have played an important role in extending the concept of respondent superior to civil authorities, which has made it possible for the first woman prosecuted at the ICTR to be currently charged with rape via her responsibility for the acts of her subordinates. While the ICTR’s mandate covers violations of international humanitarian law committed by the RPF as well as by the Hutu forces, and the Prosecutor’s official stance is that it continues to investigate such cases against the RPF, it is important to note that not one Tutsi or member of the RPF has been tried at the ICTR.
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The ICTR’s mandate has been extended several times by the UN Security Council, most recently until 2012. Currently, twenty four cases are in progress, several trials are ongoing, and two are pending after the recent arrest of two suspects in late 2009. The tentative date set to complete all first instance trials is by the end of 2011, with another two and a half years estimated for appeals. Although the vast majority of the originally indicted 90 high-priority suspects have been apprehended, eleven key fugitive suspects remain at large. The Prosecution has stepped up efforts to ensure the location and apprehension of these fugitives, and the ICTR President Dennis Byron has recently expressed that the goal of the tribunal will not be completed until each of the accused is arrested. Although not all of the indicted will be tried at the ICTR, four of them have been earmarked for trial at the ICTR based on their leadership status and extent of participation in the genocide, in accordance with the priorities laid out in Security Council resolution 1534 (2004). Others will most likely be transferred to national jurisdictions for trial.
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While it has been nearly sixteen years since the Rwandan genocide, the year 2010 is a crucial time in implementation of the ICTR’s Completion Strategy in preparation for the end of its mandate, and particularly in attaining the goal of completing all first instance trials by the end of 2010.

Sources:
Alston, Philip, Henry J. Steiner, and Ryan Goodman. International Human Rights in Context. 3rd ed. Oxford: Oxford University Press, 2007.

Eltringham, Nigel. “Debating the Rwandan Genocide.” Violence, Political Culture & Development in Africa. Ed. Preben Kaarsholm. Oxford: James Curry Ltd., 2006.

Internet Site of the International Criminal Tribunal for Rwanda. United Nations International Criminal Tribunal for Rwanda. 8 June 2010.

Mamdani, Mahmood. The Politics of Naming: Genocide, Civil War, Insurgency. London: London Review of Books, 2007.

Powell, Jeffrey H. “Amnesty, Reintegrating and Reconciliation in Rwanda.” Military Review 88.5 (October 2008): 84-90.

Prunier, Gerard. The Rwanda Crisis: History of a Genocide. New York: Colombia University Press, 1995.

[1] Prunier, Gerard. The Rwanda Crisis: History of a Genocide. New York: Colombia University Press, 1995. 36.
[2] Prunier, 50.
[3] Alston, Philip, Henry J. Steiner, and Ryan Goodman. International Human Rights in Context. 3rd ed. Oxford: Oxford University Press, 2007. 1278.
[4] Eltringham, Nigel. “Debating the Rwandan Genocide.” Violence, Political Culture & Development in Africa. Ed. Preben Kaarsholm. Oxford: James Curry Ltd., 2006. 74.