Towards the domestication of Rwandan genocide trials
In sum, I conclude that the Specialised Chamber for International Crimes of the High Court must become the appropriate legal arena to adjudicate Rwandan genocide cases. Rwandan judges are in a better position than foreign judges to hear witnesses in Kinyarwanda and to assess the quality and reliability of Rwandan oral testimonies.
It is important that one single judicial authority develop coherent opinions about the Rwandan genocide. The judicial decisions in different foreign countries are extremely complex and contradictory. They constitute a lawyer's paradise but have not resulted in clear guidelines on how to deal with these cases.
The GoR has a strong and justified desire to try genocide suspects before its courts. In 2018, most host countries show legal fatigue towards extradition and adjudication. The eagerness to end impunity has diminished considerably in the rest of the world. Therefore, I encourage the GoR to remove the existing hurdles for fair legal procedures in their country. Rwandan authorities should respect the presumption of innocence and not use denigrating terms about genocide suspects that appear before the court. It follows from the separation of powers principle—guaranteed in the Rwandan Constitution—that Executive representatives should not publicly comment on pending cases. The same principle implies that Rwandan officials must accept certain unfavourable outcomes of court decisions.
It is a worrying situation that the GoR is not able to deal with critical, factual analyses by unbiased experts like Witteveen, who write about the practices in justice sector institutions using inside information. This inability reflects my own experience as Vice Rector Academic Affairs and Research at the ILPD that Rwandan lawyers almost automatically interpret criticism of their legal system as a type of warfare or ambush.
In my classes, I have encouraged judges and prosecutors to invent a term in Kinyarwanda for positive or constructive criticism, but have never received a clear answer.Soft diplomacy
Rwanda is not an easy diplomatic partner, to put it mildly. In 2014, Patrick Karegeya, the former Rwandan Intelligence Chief who had been granted political asylum in South Africa, was murdered. President Kagame denied responsibility, but added, “I actually wished that Rwanda did it.” This statement led the US State Department to say it was “troubled by the succession of what appear to be politically motivated murders of prominent Rwandan exiles.”
Recently, Rwanda has successfully lobbied for a seat on the UN Security Council for the first time since the genocide. President Kagame was also chosen as Chairman of the African Union. If national interests are at stake, the GoR knows how to play the diplomatic game very well. Rwanda is also willing to change its commercial laws on a very short notice in order to rise in the rankings of the World Bank's Doing Business Report. But as long as the GoR tries to kill opponents of the regime abroad, the chances of international legal cooperation in genocide cases are slim.
Political goodwill and warm diplomatic relations between governments play an important role in realising legal cooperation. Therefore, Rwanda has to adjust its foreign relations strategy in a more subtle and peaceful direction, not only to attract foreign investments but also to make it acceptable for African and Western countries to extradite genocide suspects.
International standards
Because the GoR did not participate in the ICTR, the Rwandan legal community is not yet completely up to date with the international standards of adjudicating genocide suspects. The justice sector should admit that this lack of experience sets Rwanda back. The judiciary, the prosecution, the police, and the bar must make efforts to repair these shortcomings.
Rwanda's withdrawal from the African Court of Human and Peoples' Rights in Arusha in the Ingabire case is a clear sign that the GoR finds it difficult to acknowledge that human rights protections also apply to political opponents.
In its judgment, the Court confirmed that Rwanda had violated its obligations under the Charter on Human and Peoples' Rights.16The GoR's reluctance towards upholding the human rights of its critics harms the esteem that foreign governments and judges have for the quality of the Rwandan legal system and hence affects the extradition of genocide suspects and legal cooperation.
The Mpanga prison, situated near Nyanza, meets the international standards for prisons. It is now up to the GoR to take concrete steps to enable the Specialised Chamber for International Crimes of the High Court in Nyanza to reach that same level.
The judiciary
The Specialised Chamber for International Crimes of the High Court must become an African beacon for high-quality adjudication in genocide cases. If the Court succeeds in developing clear, consistent, and fair case law, it might become a good example of an African solution for African problems.
The hardest challenge for judges is to listen without bias to defence lawyer arguments that would qualify as genocide denial outside of the courtroom. One of the arguments against extradition to Rwanda is that Hutu suspects have no real chance for acquittal. The official narrative in Rwanda is that the genocide is against the Tutsi (jenoside abatutsi). The GoR has banned the Hutu-Tutsi divide from the public sphere and stresses “that we are all Rwandans now.” Therefore, every attempt to defend the behaviour of Hutu suspects is easily linked to genocide denial or divisionism.
For instance, Jean Uwikindi argued that there were Hutu bodies in the church in Kayenzi. On 28 June 2011, the Referral Chamber of the ICTR observed “it is unlikely that a potential witness would be willing to present evidence on the role of the RPF in killings in Rwanda and that it is equally unlikely that any defence counsel would agree to represent a client putting forward such a politically sensitive defence.”
The judges of the Specialised Chamber for International Crimes of the High Court must perform the Herculean task of being neutral arbitrators in a highly polarised, politicised arena.
Lifetime appointments would be a step towards minimising the risk of political interference.It would contribute to the legitimacy of the Court if the Chief Justice invited experienced foreign judges—preferably from African countries— to participate in the adjudication of concrete cases. Furthermore, all judges must be multilingual, so that they can understand the arguments of foreign advocates and witnesses. Finally, experienced and unbiased experts like Martin Witteveen must monitor the trials.
The defence
Rwandan attorneys must develop a more antagonistic attitude towards the government. They must defend genocide suspects against the state in these sensitive cases. The hostile reactions of the Rwandan Bar Association towards the Witteveen reports (Mugeni 2015) showed a worrying state of denial of the real problems regarding defence argument quality by Rwandan attorneys in genocide cases.
Foreign, vigilant lawyers on Rwandan defence teams that dare to raise sensitive political issues—such as RPF involvement in crimes during and after the genocide—are a necessary part of a good defence. Unlike their Rwandan colleagues, they can present these topics before the court without fear of sanctions.
Therefore, it is necessary that rich countries that extradite genocide suspects provide the funds for strong defence teams. That is not only fair but also cheap in comparison with adjudicating genocide cases at home.17
Notes
1 Nick Huls is emeritus professor at the Leiden Law School and the Erasmus School of Law. He also is an honorary professor at the law faculty of the University of Pretoria.
2 For opposing views, see Clark (2010) and Ingelaere (2016).
3 Ahorugeze v. Sweden, no. 37075/09, 27 October 2011.
4 The Reports can be accessed at https://bigwobber.nl/wp-content/uploads/osd/2017 1221/6946.pdf.
5 Vonnis in kort geding van 27 november 2015, C/09/494083, NERBDHA^015u3903.
6 Arrest van 5 juli 2016, 200.182.281/01, NL:GHDHA:2016:1924; Arrest van 5 juli 2016, 200.182.412/01, NL:GHDHA:2016:1925.
7 Approved Judgment on 28 July 2017, [2017] EWHC 1912 (Admin), § 288.
8 Ibid.
9 Ibid., § 361.
10 For a serious critique ofthe report, see https://francegenocidetutsi.org/DutchUniversity SlandersGenocideHero23October2o17.pdf.”
¿¿ Caroline Buisman wrote to me on April 4 that her review request is almost ready.
12 Approved Judgment, § 141.
13 Ibid., § 142.
14 Ibid., § 235.
15 Ibid.
16 Ingabire Victoire Umuhoza v. The Repubic of Rwanda, Application 003/2014, Judgment, African Court on Human and Peoples' rights [Afr. Ct. H.P.R.], (Nov. 24, 2017).
17 See the conclusion in my valedictory lecture at Erasmus School of Law (Huls 2015).