Genocide, impunity and accountability in Rwanda: is it reasonable to expect a devastated legal system to deal justly with those who destroyed it?

Author:Schabas, William A.

William Schabas recently returned from Rwanda where he was a trial observer for the International Secretary of Amnesty International. He has been to Rwanda on many occasions in the past four years and has been actively involved in several projects relating to the rebuilding of the judicial system. He is Chair of the School of Law at the Universite du Quebec a Montreal.

In early February this year, a Kigali court sentenced one of the leaders of the 1994 genocide that killed as many as a million Rwandan Tutsi. Frodouald Karamira had led an extremist political movement that sabotaged the 1993 peace agreement and organized the mass killing of hundreds of thousands of innocent men, women and children. He is the twelfth person convicted and condemned to death since trials began in late December 1996.

I attended his three-day trial in January 1997 as an observer for the International Secretariat of Amnesty International. It had all appearances of fairness. The presiding judge gave the accused and his lawyer every opportunity to rebut the charges. But Karamira's defense convinced nobody. It consisted essentially of accusations that prosecution witnesses were liars.

One witness, who was missing an ear and an eye, described how Karamira had manned a barricade close to his home in a Kigali suburb and ordered armed thugs to execute a defenseless woman. Another testified that she called Karamira to request protection for her Tutsi employer, a prominent local businessman and neighbour of Karamira. But Karamira hung up the phone and minutes later militia members arrived at the house to kill the unfortunate man and his family.

Karamira denied accusations that he had fomented ethnic hatred. In fact, he had coined the phrase "Hutu Power" and mobilized racists in different political parties around a common program of genocide. When he challenged the court to furnish proof, the prosecutor played a damning tape recording of a racist speech Karamira had delivered in a Kigali soccer stadium.

Impunity: A new human rights focus

Impunity for massive human rights violations has become a major concern of human rights activists and scholars in recent years. Amnesties granted by some regimes in the name of national reconciliation have deprived victims of the moral satisfaction that accompanies convictions. They have often created obstacles to appropriate compensation. Impunity has served to perpetuate human rights violations or, at worst, acted as an invitation to pursue them. Some countries, aware of this but fearful that criminal prosecutions may revive or perpetuate tensions, have opted for means which are not strictly judicial, such as truth commissions.

Such a solution is inappropriate for Rwanda, given the magnitude of the crimes committed. Rwandese President Pasteur Bizimungu highlighted the dilemma in calling for innovative forms of justice while ruling out any possibility of amnesty. But is it practicable to judge 87 000 people--the current estimate of those held in Rwanda's grossly overcrowded prisons--for genocide and related crimes in a judicial system whose personnel has been decimated and whose material infrastructure devastated? Can it be done while respecting the fundamental rights of the accused, including the right while detained "to be treated with humanity and with respect" and to be tried "without undue delay" by an "independent and impartial tribunal"?

Genocide foretold

My involvement in Rwandan justice goes back to a 1993 human rights fact-finding mission which included the International Centre for Human Rights and Democratic Development, Africa Watch, the Inter-African Union for Human Rights and the International Federation for Human Rights. I represented the Centre, which was then chaired by Ed Broadbent, visiting Rwanda for 15 days with nine other international experts. Within hours of our arrival we were on our way with picks and shovels to a village in the northwestern corner of the country to investigate accusations of genocidal murder of Tutsi herders.

An elderly woman had described how her sons had been summarily executed by the local burgomaster. After an afternoon battling hostile crowds, thunderstorms and the equatorial sun, and at a depth of about five metres, we began to find bodies. It confirmed the woman's story and, together with other facts assembled during our mission, led us to conclude that genocide was a real danger in Rwanda. There was more than circumstantial evidence: just weeks before our arrival and only miles from where we unearthed the mass grave, a henchman of the regime, Leon Mugesera, had given a speech that was widely interpreted as incitement to genocide. Mugesera later came to Canada where he fraudulently obtained refugee status. In July 1996, an immigration adjudicator confirmed, after hearing expert testimony, that the speech was indeed a call to genocide.

Our conclusions about the danger of genocide were picked up by a United Nations special rapporteur who visited Rwanda later that year and essentially endorsed our report. Foreign ministries, particularly in important donor countries such as France, Belgium, Switzerland, the United States and Canada, were quite indifferent. It has often been suggested that this was a failure of "early warning"--that somehow the message of the threat of genocide...

To continue reading