Country situations

• Author: Olympia Bekou
• Pages: 37-74

State of play of ex isting instruments for co mbating impunity for inter national crimes

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4. Country situations

4.1 Rwanda

In 100 days between April and July 1994 Rwanda experienced a genocide against the minority ethnic Tutsi

population, led by members of the majority Hutu population (Horovitz). During the genocide, serious

violations of international law were committed, and moderate Hutus were also attacked. The genocide was

perpetrated at the end of a four-year civil war between Hutu-dominated government forces and the Tutsi-

dominated Rwandan Patriotic Front (RPF) (Horovitz). After militarily ending the armed conflict and the

genocide in July 1994, the RPF established a government of national unity and pursued a policy of

accountability in relation to the genocide against th e Tutsi.

The EU has a strong cooperation with Rwanda, especially in relation to development. Rwanda was

allocated EUR 460 million between 2014-2020 divided between three focal sectors (energy, food security

and governance) under the eleventh European Development Fund (EU-Rwanda; EDF; Ministry of Finance

and Economic Planning). Accountability is not a focal area but is covered as part of the funding allocated

for governance (indicatively EUR 40 million), which encompasses capacity-building in relation to justice

and the rule of law (EU-Rwanda). Priority areas were outlined under the 2014-2020 National Indicative

Programme in alignment with Rwanda’s national development strategy (EU-Rwanda). To support the

response to COVID-19 in Rwanda the EU and its Member States have contributed over EUR 100 million to

protect both public health and socio-economic development (EEAS 2020c).

Whilst Rwanda is recognised for strong developmental ambition and performance in socio-economic

rights, areas of concern for the EU at the domestic level include allegations of serious human rights

violations such as excessive use of force, extra-judicial killings, enforced disappearances in relation to

political opposition, arbitrary detention and the conditions in which people are detained (EEAS 2020d).

Beyond development, the EU and its Member States have focused on two key priority areas of serious

human rights violations and significant human rights restrictions around political rights, and freedoms of

expression, association and assembly (EEAS 2020d).

In this context, this section considers accountability for international crimes committed in Rwanda. Firstly,

by looking at the ICTR, secondly, by considering Rwanda’s domestic Specialised Chamber for International

Crimes, and finally by examining how EU Member States have applied the principle of universal jurisdiction.

4.1.1 The International Criminal Tribunal for Rwanda

The ICTR was established by UN Security Council resolution 955 on 8 November 1994 and issued its

completion strategy report on 15 May 2015. The European Parliament provided political support for the

establishment of an accountability mechanism for Rwanda, adopting resolutions on the issue (Parliament

1995, 1999b). EU political support continued throughout the operational period of the ICTR, with the

Council providing common positions alongside statements on behalf of the Union, which reaffirmed

commitment to the work of the Tribunal, highlighting the necessity of outreach and the need to manage

the archives in readiness for closure (Council 2002c; Štiglic Statement). The EU also provided significant

funding, including EUR 1.5 million approved by the European Commission in 2004 for eight projects to

strengthen the managerial and operational capacity of the ICTR in relation to: witnesses and victims;

information management and security; and outreach and capacity-building (MICT 2020f). EU Member

States similarly provided significant support, including for outreach and capacity-building activities

(S/2015/340). The consistent political and financial backing of the EU and its Member States were crucial

forms of support for the ICTR, especially when combined with the EU’s focus on capacity-building, outreach

and legacy planning. Given that similar issues arise today, political and financial support should be

maintained in interactions with current accountability mechanisms elsewhere (

infra

Sections 4.4.5, 4.5.3, 4.6.2).

Policy Department , Directorate-General for External Policies

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As the ICTR approached closure, its completion strategy faced challenges around transferring cases to

national jurisdictions. Despite a global engagement there was hesitance from States to accept cases due

to issues such as lack of resources, as the ICTR Prosecutor could not provide assistance for the costs of

subsequent national prosecutions ( ICTR-OTP; Gahima). There was also a legal capacity issue as compliance

with Rule 11bis, the ICTR Rule of Procedure and Evidence provision that enabled referrals to national courts,

was a prerequisite before a case could be transferred to a national jurisdiction. The ICTR Chambers had to

consider whether the legal framework of a potential receiving State criminalised the alleged conduct,

provided an adequate penalty structure, whether the accused would receive a fair trial, and whether the

conditions of detention were in line with international standards. Motions to transfer the Bagaragaza case

first to Norway and then to the Netherlands were unsuccessful as their domestic legal frameworks did not

criminalise the relevant conduct (ICTR-OTP). The cases of Munyeshyaka and Bucyibaruta were transferred

to France on 20 November 2007 after the accused were arrested in France (S/2015/340).

The need to comply with Rule 11bis provided a catalyst for domestic change in Rwanda, as early motions

to transfer the Munyakazi and Kanyarukiga cases to Rwandan jurisdiction were denied. Subsequently, the

ICTR Office of the Prosecutor worked with Rwanda, including through an internal Rule 11bis committee to

improve conditions by providing training, constructing prison cells to meet international standards, and

enacting legal reforms (Obote-Odora). Notably, in March 2007, as part of these reforms, Rwanda introduced

Organic Law No. 11/2007 prohibiting application of the death penalty to transferred cases, before

abolishing it completely with Organic Law No. 31/2007 in July 2007. The ICTR subsequently transferred

Uwinkindi and Munyagishari to Rwanda and provided ongoing monitoring (continued by the MICT), being

praised for the collaborative working and positive impact on the development of national legislation in

Rwanda (S/2015/340; Rowanda and Buckley-Zistel). The EU acknowledged the positive impacts of the

completion strategy on domestic justice and therefo re consequently on society, stating full support for the

strengthening of the Rwandan judicial system in readiness for transferred cases from the ICTR (Štiglic

Statement).

The strong emphasis by the Government of Rwanda on accountability and the need for justice as part of

reconciliation created a domestic consensus on the need for Rwandan justice, with some acknowledgment

among the population of the ICTRs role in prosecuting core international crimes (Rowanda and Buckley-

Zistel). However, the lengthy proceedings and location in Arusha have been criticised. Survivors’

associations expressed concern about the sentences handed down by the ICTR compared to the acts

committed, and that accused were being found not guilty or acquitted over technicalities, with the general

consensus among the population being that responsibility to provide justice falls on the government

(Rowanda and Buckley-Zistel). As international criminal justice efforts move towards providing

accountability closer to the victims, Rwanda exemplifies the need to provide capacity-building support to

countries in transition in order to facilitate trials in the country where the crimes took place (Interview 2).

The EU should consider the salient lessons from Rwanda around the importance of supporting domestic

capacity-building during transition. Within that, there is the need for robust legal and physical

infrastructure, forward-thinking training and comprehensive outreach.

In line with its current practice the EU should, however, continue to be mindful of the political context of

transition and its effect on fair trial norms. It should be especially mindful of potential associated pitfalls

such as the unequal application of justice, which in Rwanda led to allegations of ‘victor’s justice’ and

possible political influence over selection of the accused at the ICTR, as the Tribunal did not prosecute RPF

crimes (Interview 11; Schabas). In 1999, investigations were opened into RPF crimes by then Prosecutor

Carla del Ponte, causing negative reactions from the Government of Rwanda including preventing

witnesses travelling from Rwanda to testify ( Peskin). After sustained tensions Carla del Ponte was replaced

and the ICTR focused on crimes committed by prominent Hutu accused (Al-Jazeera 2020a). In 2008 the

ICTR transferred the case files of individuals suspected of involvement in RPF crimes to Rwanda where they

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were tried in a military tribunal in Kigali amid heavy criticism of political interference (Human Rights Watch

2020a; Rowanda and Buckley-Zistel). The Government of Rwanda remains reluctant to investigate or

prosecute international crimes allegedly committed by the RPF, and political interference in such activity

is a concern in relation to every option for accountability (Human Rights Watch 2020a; Rowanda and

Buckley-Zistel). Whilst the issue is highly sensitive, the EU and the European Parliament should continue to

call for accountability for all international crimes and encourage Member States who, despite potential

political repercussions, make efforts to apply th e law equally where violations are suspected (infra Section

4.1.3).

In line with UN Security Council resolution 1966 (2010) the functions of the Residual Mechanism (MICT)

include tracking, locating and arresting the one remaining fugitive of the ICTR, Protais Mpiranya, and

prosecuting Félicien Kabuga, who is being transferred to the MICT from French custody (supra Section

2.1.1). The MICT is also working cooperatively with Rwanda regarding cases transferred to its jurisdiction

from the ICTR. This includes assistance with locating and arresting the five remaining fugitives who are

intended to be tried by the Rwandan domestic judiciary: Kayishema, Munyarugarama, Ndimbati,

Ryandikayo and Sikubwabo (MICT 2020g). It also includes monitoring proceedings in relation to the ICTR,

beginning with the two initial cases (Uwinkindi and Munyagishari) and latterly the fugitive case

(Ntaganzwa). For these cases the MICT has a partnership with the Kenyan Section of the International

Commission of Jurists (ICJ Kenya) to provide experts for assistance as monitors and to manage the

monitoring of referred cases (MICT 2020d). The Memorandum of Understanding between the MICT and

the ICJ Kenya regarding monitoring of Uwinkindi and Munyagishari was signed in January 2015 and was

revised in August 2016 to include Ntaganzwa (MICT 2020d). Monitoring includes adherence to human

rights norms such as fair trial protections and conditions of detention. In order to facilitate the completion

of the MICTs work, the EU should seek to provide full cooperation to the mechanism. To this end, the

Parliament should also encourage inter-State cooperation and activity such as participation in the

European Task Force on Rwandan genocide suspects, the Genocide Network, domestic capacity-building

and application of the principle of universal jurisdiction.

4.1.2 The Specialised Chamber for International Crimes

The EU made a statement in support of domestic trials to continue the legacy of the ICTR, in which it

reiterated that national judicial authorities must conduct fair trials and ensure that sentences are served in

line with international standards (Štiglic Statement). In 2012, following Organic Law No. 11/2007 concerning

transferred cases, a Specialised Chamber for International Crimes (Specialised Chamber) was established

within Rwanda’s High Court to prosecute transferred or extradited individuals. The Specialised Chamber

has been hosted at the High Court in Kigali since 2012, with purpose-built premises in Nyanza District

completed in 2018: the facility was constructed with co-funding from the Netherlands and the Government

of Rwanda and was designed to meet international standards (Tashobya). Although the EU is not

interacting directly with the Specialised Chamber at this time, the importance of their work is recognised

(Interview Arena). In order to facilitate justice where the crimes have been committed and continue to

increase Rwanda’s capacity to provide accountability, the EU should remain open to supporting

appropriate capacity-building activities related to the Specialised Chamber. Such activities should be

locally owned or requested, could include financial or technical support, and the EU should encourage

Member States to provide similar support.

Extradition and transfer are important aspects of accountability for Rwanda as many individuals fled the

country, including some claiming to be refugees, who took part in the genocide. Suspects remain at large,

stood trial in the ICTR, and continue to stand trial in other jurisdictions with international arrest warrants

being issued by the Government of Rwanda (Bolhuis et al.; Rowanda and Buckley-Zistel). In 2007, the

Rwandan National Prosecution Services established a Genocide Fugitive Tracking Unit to facilitate

international cooperation to prosecute the accused elsewhere or extradite them to Rwanda. By 2012, it