Tackling the root causes of war between Rwanda and the Democratic Republic of Congo requires an end to the culture of impunity, particularly the prosecution of alleged war crimes and crimes against humanity committed by the Rwandan Patriotic Front (RPF).
By Wamala Twaibu Rodney
Like the 2004-2009 rebellion, the current mutiny has its roots in ethnic and political wounds dating back to Rwanda’s 1994 genocide. Later invasions of the Congo by Rwandan forces, and Kigali’s backing of Congolese rebels, fuelled two successive wars that killed several million people.
It seems to many as if the story began shortly before April 6th 1994, when the incumbent President’s plane was shot down on its approach to Kigali airport, unleashing a wave of mass violence which claimed 800,000 lives. There are scholars, such as Mahmood Mamdani, who have sought to go beyond this popular understanding by contextualizing the genocide in terms of colonial history and developments in neighbouring countries; thereby moving from an understanding that the genocide was simply the product of ethnic hatred. Without wishing to trivialize the 1994 genocide, argue “moral equivalence” or promote the so-called “double genocide theory,” most would agree that it is important to recognize that mass violence was committed by both sides. Furthermore, the 1994 genocide needs to be placed in the context of the Rwandan Civil War that began in 1990.
The question of the Rwandan genocide has never really disappeared from the media and popular discourse, but it has been in the spotlight in recent weeks after a draft UN report on the most serious violations of human rights in the Democratic Republic of Congo over an eleven-year period (1993- 2003) was leaked to the French newspaper, Le Monde. The lengthy report states that after the Rwandan Patriotic Front’s (RPF) takeover of Rwanda in 1994, it proceeded to carry out “systematic and widespread attacks” against Hutu refugees who had fled Rwanda to neighbouring Zaire (now the Democratic Republic of the Congo) as well as against the Hutu civilian population of Zaire in general. It concludes that the pattern of these attacks “reveals a number of damning elements that, if they were proven before a competent court, could be classified as crimes of genocide.” Luc Côté, a war crimes prosecutor from Montreal who led the investigation and co-authored the report, told Agency France Press that the evidence of genocide includes speeches in which Hutus were targeted for elimination, systematic and repetitive killings, the burning of corpses and attempts to bar outsiders from visiting massacre sites.
A Hutu refugee with open machete wounds on his head stands amidst a group of hundreds of fellow refugees who were surrounded by the Tutsi Army Thursday April 27 1995, in the school compound of Kibeho, southern Rwanda. At least 2,000 people were killed by army gunfire or trampled in a stampede the previous week while the Rwandan army was trying to close the camp, which the government considered a center for extremist Hutu militias. This is not the first “public” revelation of RPF crimes. In 1994, Robert Gersony, an employee of the U.S. Agency for International Development (USAID) – then attached to the UN High Commissioner for Refugees – had been dispatched to survey the situation inside Rwanda to determine if conditions were right for a return of the Hutu refugees who had fled the RPF. Instead, he found that the RPF had been committing systematic massacres of the Hutu population in Rwanda, starting in April 1994 and continuing through the date of his oral presentation to the UN Commission of Experts on Rwanda on October 11th of that year. With the RPF sweeping through the country, the Hutu génocidaires – including politicians, priests and militias – fled to neighboring Zaire, where they hid among more than a million genuine Hutu refugees. When they regrouped to continue their resistance, RPF leader, Paul Kagame – the current president of Rwanda – ordered an invasion of eastern Zaire in 1996 marking the beginning of the First Congo War. This triggered a conflict that drew in six additional countries – Burundi, Uganda, Angola, Zimbabwe, Namibia and the Central African Republic – and led to the deaths of about 4 million people.
The leaked UN report, based on interviews with 1,280 individuals and a review of more than 1,500 documents, raises deep and troubling questions about the use of the word ‘genocide’. The common understanding of RPF aggression was that it was directed at those responsible for the genocide committed against the Tutsis; however, the UN report states that the majority of the incidents reported indicate that the Hutus were targeted as such, illustrated by the numerous targeted attacks against non-refugee Congolese Hutus. The report identifies the systematic use of barriers by the RPF, particularly in South Kivu, which “enabled them to identify people of Hutu origin by their name or village of origin and thus to eliminate them”.
This tendency to target all Hutus as such is, according to the report, also supported by evidence of declarations made during RPF “awareness-raising speeches” in certain places, “according to which any Hutu still present in Zaire must necessarily be a perpetrator of genocide, since the ‘real’ refugees had already returned to Rwanda.” These speeches were considered to have possibly constituted incitement for the population to look for, kill or help kill Rwandan Hutu refugees, whom they called “pigs”.
According to the definition of the international crime of genocide, certain genocidal acts such as the murder of those belonging to a particular ethnic group need to have been committed with the specific intent to destroy a particular group as such. It is this element that is the most difficult to prove in a court of law. One of the most important issues in international criminal law is whether a genocidal policy or plan is an element of the crime of genocide. According to the jurisprudence of the ad hoc tribunals, the existence of a genocidal plan is simply one factor from which such intent can be inferred. The draft UN report opens the possibility that a court could deduce the existence of a genocidal plan from “the behavior of certain elements of the RPF in respect of the Hutu refugees and Hutu populations settled in Zaire at this time,” which seems to equate to “a manifest pattern of similar conduct directed against that group”.
The UN report, however, also sets out some facts that may cause a court to hesitate in making a finding of genocide against the RPF. One of the most significant factors at odds with any portrayal of a genocidal RPF is that as of November 15th 1996, at the beginning of the First Congo War, several tens of thousands of Rwandan Hutu refugees were repatriated to Rwanda with the help of the RPF, whilst hundreds of thousands of Rwandan Hutu refugees were able to return to Rwanda with the consent of the Rwandan authorities prior to the start of the First Congo War, which ended when Zairean president, Mobutu Sese Seko – who was supporting Hutu extremists – was overthrown with the support of Uganda and Rwanda.
Without a doubt the report presents a challenge to Rwanda’s president, Paul Kagame, who was recently elected to a second seven-year term in office. Kagame rejected the draft report and threatened to withdraw Rwanda’s peacekeeping forces from the Darfur region of Sudan and other African countries should the United Nations publish the report in its current form. UN Secretary-General Ban Ki-Moon rushed to Kigali shortly afterwards to urge him to reconsider in light of South Sudan’s 2011 referendum on succession.
This is not the first time that Rwanda has threatened to withdraw its forces from Darfur. A similar threat was made in 2008 in response to the indictment issued by Spanish investigative judge Andreu Merelles against UNAMID (UN Assistance Mission in Darfur) deputy commander, Karake Karenzi, along with 39 other Rwandan officers for genocide, crimes against humanity, war crimes and terrorism perpetrated over a period of 12 years, from 1990 to 2002, against the civilian population, primarily against members of the Hutu ethnic group. The Spanish investigation was prompted by complaints from families of nine Spaniards who were killed, harmed or “disappeared” during the relevant period, but the indictment was subsequently expanded to include crimes committed against Rwandan and Congolese victims, based on the doctrine of universal jurisdiction.
The Spanish proceedings revealed prima facie evidence that from October 1990, a political-military structured group, heavily armed and well-organized, engaged in a series of criminal activities which were carried out in Uganda against the territory of Rwanda. The indictment, based on the testimony of 22 witnesses, identified a “large extremist group of Rwandan Tutsis based in Uganda called the Rwandan Patriotic Front (RPF), which was created in order to achieve three purposes: 1) To eliminate the largest number of persons of the Hutu ethnic group, the ethnic group predominant in their country of origin; 2) To seize power by force; and 3) To form a strategic alliance with the Tutsi ethnic group and other Western allies, to terrorise firstly the population of Rwanda and then all the Great Lakes area in order to increase their sphere of power, control and influence and to invade Zaire, taking and using as their own the rich natural resources of the country”.
According to the indictment, on October 1st 1990, the RPF crossed the Ugandan border into Rwanda “with the purpose of invading, killing certain civilians and causing massive internal displacement.” The indictment then describes in detail a series of massacres, attacks and acts of terrorism against the civilian population in Rwanda that took place over the next four years. In turn, Rwandan president Habyarimana’s party created its own militias, which would come be known as the Interahamwe. They launched numerous attacks against Rwanda’s Tutsi population, and were the ones who would later carry out the 1994 genocide. The indictment goes on to describe how, in March 1994, “in order to begin the definite assault to power and to create a situation of civil conflict,” several meetings were attended by the leaders of the RPF with the purpose of preparing an attack to assassinate the President. The last of these meetings took place on March 31, 1994, and was attended by General Paul Kagame and other high-ranking officials. Arrangements for the attack were made to determine the place from where surface-to-air missiles would be launched and the composition of the command that would carry out the attack. On April 6th 1994, the president’s plane was shot down, killing all those on board and sparking the genocide. In the following months, the RPF continued to launch attacks against civilians in Rwanda.
On July 17th 1994, the RPF seized power. Consequently, hundreds of thousands of Hutus headed to internally displaced persons (IDPs) camps, mainly in the western areas of Rwanda, while over a million sought refuge in neighbouring countries, especially Zaire. The indictment then details more RPF massacres and attacks against refugees and civilians in Zaire/DR Congo through to 1997, the end of the First Congo War, as well as from 1998-2002 (the Second Congo War). The draft UN report says that “the entire period [1996-1998] was characterized by the relentless pursuit of Hutu refugees and ex-Interahamwe by RPF forces across the entire Congolese territory.” It contains a catalogue of atrocities perpetrated by the RPF, along with forces from Uganda and Burundi, against the civilian population in DR Congo during the Second Congo War, including sexual violence and the use of child soldiers. But it does not make explicit mention of violence committed against Hutus during this period. The majority of the victims during the wave of terror, according to the Spanish indictment, were Rwandan Hutu refugees or Congolese Hutu civilians. The Spanish judge did not indict Kagame, because as head of state, he had immunity from prosecution, even though many of the incidents clearly imply criminal involvement on his part. It was a French judge, Jean-Louis Bruguière, who issued an indictment on November 17th 2006 against Kagame, alleging that he was responsible for ordering the downing of Habyarimana’s plane in April 1994. A week later, Kigali severed diplomatic relations with Paris. The incident will be reinvestigated by a team of experts later this month, with a view to determining from where the missiles were fired as a possible indicator of who was behind the attack.
The question of genocide aside, the UN findings are expected to lay the foundation for potential prosecutions for war crimes and crimes against humanity against senior Rwandan figures, such as Colonel James Kabarebe, who led Rwanda’s military operations in DR Congo and now heads the Rwandan forces. Kabarebe is also one of ten Rwandan officials accused by Bruguière of involvement in the assassination of Habyarimana.
The International Criminal Tribunal for Rwanda (ICTR) would have the authority to try these crimes if they were committed in 1994, because its jurisdiction extends beyond the territory of Rwanda to include “Rwandan citizens responsible for such violations committed in the territory of neighboring States between 1 January 1994 and 31 December 1994.” It would however be unable to prosecute individuals for crimes committed before or after 1994. Ordinarily, prosecutions for crimes committed outside 1994 would rest with the Congolese judicial system. However, the draft UN report identifies a multitude of shortcomings such as the judiciary’s lack of independence, military interference in judicial affairs and a severe lack of resources. It is clear that the system lacks the legitimacy needed to make the smallest inroads into ending impunity in DR Congo. Justice sector reform has been recommended as one component – with others including truth and reparation-seeking mechanisms – of a “transitional justice” solution for the country.
The ICTR has been in possession of evidence that could be used to prosecute members of the RPF, however, so far it has only prosecuted Hutu defendants. Former ICTY and ICTR chief prosecutor Carla del Ponte writes in her 2009 memoir, ‘Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity’, that she was eventually removed from her ICTR post after she refused to yield to pressure from the then U.S. ambassador-at-large for war crimes, Pierre Prosper, to sign away investigations of allegations against the RPF. That was not her first confrontation with blackmail, she writes. Earlier, Kagame’s government was obstructing justice by sabotaging the ICTR trials of Hutu génocidaires by introducing measures to restrict the movement of witnesses travelling to Tanzania to testify. In a meeting with Kagame on June 28th 2002, Del Ponte requested the military prosecutor’s files relating to the killings of the archbishop and other clergymen by RPF in Kabgayi in June 1994, the only RPF incident that she wished to investigate, at least initially. President Kagame refused to hand over the files. “You are destroying Rwanda,” he said. “If you investigate, people will believe there were two genocides”. The President’s desire to prevent any such perception within Rwanda may be said to be one of the reasons behind the country’s “genocide ideology” laws. Ostensibly, the laws have been created to encourage unity and restrict speech that could promote hatred, given the central role that hate speech played in the 1994 genocide. However, rights groups such as Amnesty International have criticized the legislation saying it violates the freedom of expression and is being misused to criminalize criticism of the government and legitimate dissent, including suppressing calls for the prosecution of RPF war crimes.