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Sierra Leone : Punishing Genocide in Rwanda  by Peter Dumbuya

rious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighboring states, between 1 January 1994 and 31 December 1994." The Security Council acted pursuant to Chapter VII of the UN Charter that empowers it to act in the interest of international peace and security.

Background to Genocide

The long standing Hutu-Tutsi conflict seemed destined to be resolved when, on 4 August 1993, the government of Rwanda and the Rwandese Patriotic Front (RPF) signed the final Arusha Peace Agreement. By signing the peace agreement, both parties undertook to end the war that had started in October 1990. The Arusha Peace Agreement provided for the establishment of a Broad-Based Transitional Government (BBTG) to include the RPF, partial demobilization and integration of the armed forces of both parties (13,000 RPF; 35,000 Rwandan Armed Forces-FAR), creation of a demilitarized zone between the RPF-held areas in the north and the rest of Rwanda, deployment of an RPF battalion in Kigali, and the deployment of UN peacekeepers. On 5 October 1993, the Security Council established the United Nations Assistance Mission for Rwanda (UNAMIR) to monitor the cease fire agreement and the security situation in Rwanda.

Within weeks of the establishment of UNAMIR, events in neighboring Burundi cast a dark shadow over the peace process in Rwanda. On 23 October 1993, Burundi Tutsi soldiers assassinated President Melchior Ndadaye, a Hutu, in an attempted coup d’état. The death of Ndadaye reinforced the majority Hutu (84% of the population) suspicion of the intentions of the minority Tutsi (15% of the population) in Rwanda. Historically, the Tutsi monarchy had dominated Rwandan politics before and during the colonial era. First German and then Belgian colonial governments had administered Rwanda with the support of the Tutsi minority. Independence from Belgium in July 1962 and the adoption of universal suffrage sharpened the ethno-regional cleavage between the Hutu and Tutsi populations of Rwanda. On 5 July 1973, General Juvénal Habyarimana, the Hutu army chief of staff, seized power in a coup d’état. The Tutsi who fled to Uganda formed the RPF. The RPF’s military wing, the Rwandan Patriotic Army (RPA) was responsible for the cross-border war the Arusha Peace Agreement sought to end in August 1993.

For Habyarimana, the death of Ndadaye was evidence of a Tutsi conspiracy to undermine the emerging Hutu political ascendancy in Rwanda. Accordingly, Habyarimana denounced the Arusha Peace Agreement as "treason." On 6 April 1994, the plane carrying Habyarimana and President Cyprien Ntaryamira of Burundi was shot down as it came to land at the Kigali airport. The presidential guard and the Interahamwe militia responded to the plane crash by killing Tutsi and Hutu who supported the Arusha Peace Agreement. By the time the RPF entered Kigali on 18 July 1994, Hutu extremists, led by the Interahamwe militia and the rump of the Hutu government led by Colonel Théoneste Bagosora, had massacred over 800,000 Rwandan Tutsi.

Constituting the ICTR

By adopting Resolution 955 in November 1994, the UN Security Council recognized that the situation in Rwanda constituted a threat to international peace and security as contemplated by Chapter VII of the UN Charter. Therefore, Resolution 955 empowered the ICTR to "prosecute persons responsible for serious violations of international humanitarian law" in Rwanda in 1994. The mandate of the ICTR extends to three categories of crimes: genocide, crimes against humanity, and violations of Article 3 common to the 1949 Geneva Conventions and of Additional Protocol II of 1977.

The statute of the ICTR defines genocide as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group." Such acts include 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, or forcibly transferring children of the group to another group. Persons who commit genocide, as well as those who attempt, conspire, and incite others to commit genocide are subject to prosecution by the ICTR.

The statute also empowers the ICTR "to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds": murder, extermination, enslavement, deportation, imprisonment, torture, rape, and persecutions on political, racial and religious grounds. These crimes are subsumed under the rubric of "crimes against humanity."

The third category of crimes falls under Article 3 of the 1949 Geneva Conventions for the Protection of War Victims, and of Additional Protocol II of 1977. The ICTR has jurisdiction over persons who committed acts of violence to the life, health, and physical or mental well being of persons, in particular murder, torture, mutilation, or corporal punishment. Other serious violations of Article 3 include collective punishments, the taking of hostages, acts of terrorism, outrages upon personal dignity, pillage, and extra-judicial executions and sentences.

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