“That since wars begin in the minds of men,
it is in the minds of men that the defences of peace must be constructed.”
UNESCO’s Constitution
The Security Council of the UN decided on November 8, 1994, within the framework of Chapter VII of the UN Charter, to create the International Criminal Tribunal for Rwanda (ICTR). Its purpose was to prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda, as well as Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring states between January 1, 1994 and December 31, 1994.1 The statute itself linked prosecution of the international crimes committed in Rwanda in 1994 to justice and reconciliation.2
Questions arose: could this tribunal fulfill its mission of reconciliation when it excluded from its temporal jurisdiction crimes committed during the military invasion from Uganda and war from October 1990 to the end of 1993? And when it also excluded the crimes committed by the Rwandan Patriotic Front (RPF) from 1995 on? And when its territorial jurisdiction excluded crimes committed by the RPF outside of Rwanda? Did it not thus provide the RPF with impunity for crimes committed in the Democratic Republic of the Congo from 1996 to now? Many Rwandans everywhere consider that the recourse to justice at the ICTR with its obvious limits, combined with the national and Gacaca courts that sent thousands of Rwandans to prison, were simply victors’ justice that made no contribution to universal justice and reconciliation.
Memorials to the victims of the war were constructed, yet many victims, Hutu and Twa, consider themselves excluded.3 Many Tutsi, formerly close collaborators of Paul Kagame, have explained the RPF government strategy: manipulation of public opinion, appropriation of the victims by the state, and creation of guilt for the international community (but only in favour of Tutsi victims). Rwanda, like Spain,4 is confronted with the difficulty of remembering victims in an inclusive manner.
How can goals of sustainable peace and reconciliation be achieved? Several known studies imply that recourse to justice and prosecution is at odds or is even incompatible with such goals. The war gave rise to different forms of judicial prosecution. This paper focuses on the Spanish and Rwandan experiment. Other approaches to conflict resolution have been used but powerful interests have attempted to prevent the search for truth and reconciliation.
New transitional processes have brought novel means to finding remedies for the pain and suffering and promoting individual and collective harmony. Generally described as “transitional justice,” this approach was developed at the end of the 1980s and early 1990s as a broadly based and all-encompassing response to the systematic violations of human rights and past abuses in violent conflicts committed by authoritarian regimes. Countries adopted varied approaches, including judicial investigation of those responsible for massive and systematic crimes, truth commissions, and analogous mechanisms using different names (sometimes incorporating concepts of justice, reparations, or reconciliation). The mechanisms served to investigate and reveal human rights violations, recommend remedies, and provide assurances that such violations would not occur again.
Governments provided reparations, either material or symbolic, to victims, both individually and collectively. They could include economic compensation, acts of atonement, memorials, policies of commemoration with the participation of victims and their families, memorial institutions, community education, dedication of spaces to remembrance, museums, public monuments, centres of interpretation and remembrance, and oral histories of the victims, all of which contribute to creating a collective conscience of past abuses and helping avoid future crimes, thereby creating a strong foundation for democracy and peace.
Different mechanisms are proposed for reforming state institutions to avoid future abuses: army, police, courts, civil servants, and the administration all serving to bring about structural change in state organs of repression in order to create a public service for the people. Other complementary proposals include traditional courts and other mechanisms for peaceful resolution of conflict such as conciliation, mediation, public discussion, participatory proceedings directed at avoiding violence and favouring peaceful co-existence, and national dialogue. The diverse mechanisms should be adapted to the particular society.
This holistic approach and the vision of complementarity have become accepted. The UN Human Rights Council agreed to create the position of a Special Rapporteur with the specific mandate for the “promotion of truth, justice reparation and guarantees of non-recurrence.” The first report of the Special Rapporteur, dated August 9, 2012,5 stressed the global focus and the requirement to relate the four distinct aspects defined in the mandate, correlating furthermore the two medium-term objectives: recognising the victims and inspiring confidence in the process, with the two long-term objectives of contributing to reconciliation and consolidating the Rule of Law.
Following is a brief analysis of Rwandan national courts, traditional courts, and universal jurisdiction from the standpoint of “transitional justice,” with a particular focus on Spanish initiatives, first with respect to justice and then to efforts at reconciliation.6
Nevertheless, both the ICTR at first,9 followed by national entities, from both civil and common law traditions, have often refused extradition/transfer to Rwanda on legal grounds based on the lack of due process and legal guarantees of the Rwandan justice system (e.g., absence of judicial independence, risk of unfair trial, impossibility to exercise defence rights with minimal guarantees, systematic violation of the presumption of innocence, risk of prison sentences of life in solitary confinement, risk of cruelty, and unusual punishment). Congolese national courts have not carried out systematic investigation of crimes committed in war and other conflicts occurring on its territory from 1996 on. Different Congolese and international human rights groups in the Congo have called for the creation of national tribunals or hybrid tribunals through the United Nations to investigate the most serious crimes committed in the wars by Congolese or Rwandans. We consider that the Rwandan national courts have simply applied victors’ justice.
Charging and convicting under the principle of victors’ justice in these difference jurisdictions have exacerbated the political conflict in Rwanda and the Congo.
The roles of civil society and victims have changed from that of spectators and victims to participants in legal proceedings or peace processes. Many governmental and international organisations have misgivings about these developments, perceiving them as invading turf that “does not belong” to victims or civil society, but rather to those who count and have the required knowledge and expertise. Some organisations, however, foster this development.
Spain and other countries with continental justice systems allow victims, to varying degrees, to participate formally in judicial proceedings. Examples include the decisive intervention by Argentina’s Madres y Abuelas de la Plaza de Mayo; by Spanish, Argentine, and Chilean victims; Spanish and Guatemalan Maya victims; Catalonian, Spanish, Rwandan, and Congolese victims; Tibetan victims; Palestinian victims, etc. Victims have played varying roles in articulating, presenting, investigating, and even filing formal charges in processes of universal justice in application of current international law. On the other hand, the Nuremberg and Tokyo Trials, or the ad hoc courts for the former Yugoslavia and Rwanda, or other mixed courts largely inspired by the Anglo-Saxon law deem intervention or legal representation of victims unthinkable. However, the International Criminal Court has created a new system of justice. This new system, a hybrid between the continental and Anglo-Saxon systems, marks the first time ever that an international court offers victims the real possibility of participating and having legal representation—albeit in a more restricted way than in continental national systems of justice. It remains to be seen if the ICC will act independently and allow all victims to influence prosecutorial policy and lead to prosecution of powerful countries and leaders.
The increasing involvement of representatives of civil society in peace processes, including victims and relatives of victims, has had a significant impact. Scholars have argued in empirical studies that participation of civil society in peace negotiations enables agreements to be more feasible and sustainable.11 Agreements are more legitimate and stronger, and create conciliatory and integrative dynamics between the parties.12
The extended war in Rwanda and the Democratic Republic of the Congo has killed almost seven million people, including Rwandan, Congolese, Burundian, Spanish, Italian, Canadian, Belgian, and British victims, and has left more civilians dead than any conflict since World War II (not to mention the heads of state of Burundi, Rwanda, and the DRC).
The Spanish case was a joint initiative in which civil society and the victims of this conflict came together to create a mixed approach combining the path of justice and prosecution with a dialogue for peace13 in an attempt to transform the conflict by non-violent means.
At the end of the nineties, the International Forum for Truth and Justice in the African Great Lakes Region, which included a number of prominent personalities (including Nobel Peace Prize winner Adolfo Pérez Esquival and US Congresswoman Cynthia McKinney), victims, relatives of Spanish, Rwandan, and Congolese victims, national and international NGOs, and some public institutions, initiated an international process to investigate major international crimes perpetrated in Rwanda and the DRC between October 1990 (military invasion from Uganda) and July 2002 (International Criminal Court starting competence for DRC).
In 2005, after years of evidence collecting, the parties filed a lawsuit at the Spanish courts under the principle of universal justice. On February 6, 2008, after a full investigation, the Spanish courts issued a bill of indictment and international arrest warrants for forty top officials of Rwanda’s incumbent political-military group that has held power in Rwanda since 1994.14 The arrest warrants charged them with the crimes of genocide, crimes against humanity, war crimes, and terrorism. According to the decision made public by the Spanish courts,15 the judge had obtained extensive testimonial and documentary evidence and expert testimony regarding the crimes allegedly perpetrated by the RPA/RPF in Rwanda and the DRC in the period 1990-2000. This investigation revealed that the RPA/RPF’s rigid, hierarchical chain of command, headed by President Paul Kagame, was responsible for three major and closely interrelated blocks of crime.16 The investigation showed that large-scale crimes took place in Central Africa in every stage of the war: prior to, during, and after the mass killings of the Tutsi population occurring between April and July 1994. The April-July killings were classified as genocide by the UN Security Council in its ad hoc resolution and in the ICTR judgments. The official version in international public opinion only recognises the killings between April and July 1994.
On the other hand, the Spanish decision sheds light on a particular array of facts. First, RPA/RPF army units with 2,400 soldiers backed by Ugandan military, logistical, and political support, invaded northern Rwanda from October 1, 1990, causing the death of countless Hutu civilians. Secondly, from 1991 to 1993, the RPA/RPF carried out many open and carefully targeted military operations against civilians through its two main forces—the RPA’s regular army and the Directorate of Military Intelligence’s (DMI) secret services—creating also special death squads such as the “Network Commando.” Thirdly, in 1994 the RPA buried and hid in Uganda large amounts of weapons to be smuggled later into Rwanda prior to planning the April 6, 1994 attack against Rwandan President Juvénal Habyarimana, which triggered the ensuing chaos.
Then later in 1994 and in 1995, the RPA and DMI perpetrated mass and targeted crimes against civilians, mostly Hutu, following Paul Kagame’s explicit instructions to eliminate the Hutu population. The RPA and DMI also organised collective burials in mass graves and mass incineration of corpses in Akagera and Nyungwe Parks. The investigation also revealed that in 1996 and 1997, the RPA/RPF systematically attacked Hutu refugee camps in former Zaïre, killing hundreds of thousands of Rwandans and Congolese. According to the decision—and UN reports17—it also organised the plundering of mineral resources such as diamonds, coltan, and gold, thereby creating the intricate web of corruption led by the “Congo Desk,” the DMI and Rwandan companies—among them, Tristar Investment—all of whom were backed by multinational corporations and Western powers. During the second military invasion starting in 1998, the RPF/RPA continued in the same vein with a trail of killing and plundering in the DRC which continues until now.
Social scientists and jurists will study ad hoc tribunals such as the ICTR and the ICTY and their contributions, if any, to reconciliation and peace. They will also examine the Spanish court’s work under universal jurisdiction for similar impacts. The Spanish case attempted to bring before the court those primarily responsible for these international crimes to end impunity and have an impact on individuals and communities.
The Spanish court decision has affected the ICTR, the African Union, the European Union, the United Nations, and other countries including as follows:18
When the Spanish Court made its decision public, there were some significant international impacts. One very important ICTR-related consequence was the statement presented by ICTR Prosecutor Hassan Bubacar Jallow before the UN Security Council on June 4, 2008,20 explaining that he had decided to open the first file in ICTR history against RPF/RPA officials. In it he attested that his office had evidence showing that members of the RPA were allegedly responsible for the Gakurazo crime of June 5, 1994 where the priests were murdered. He did not refer to any other crime committed by the RPF/RPA in 1994.
It is now known that the ICTR prosecutor had investigated and kept evidence about this crime since at least 2001, but it was not until 2008, just after the Spanish court decision (including explicitly the Gakurazo crime, its victims, and alleged killers) that the chief prosecutor decided to open a case. Less than one week later, on June 11, 2008, the Rwandan prosecutor general stated that Rwanda had reached an agreement with the ICTR to organise a Rwandan trial for the four suspects who had been arrested.21 So the first and only ICTR case allegedly involving RPA officials for crimes executed during ICTR’s temporal jurisdiction was quickly neutralised.
The ICTR promised to supervise this domestic trial closely. The results are public and outrageous: the two high-ranking officials were acquitted, and the two soldiers were condemned for facts considered “revenge reactions.” Families of the victims have asked the ICTR prosecutor to show them the prosecutor’s evidence that had not been considered or used in the domestic trial. This evidence has not yet been given to the families of the victims.22 Human Rights Watch has exchanged several letters with the ICTR prosecutor in the same sense, noting the lack of interest of the ICTR in delivering all the pieces of evidence and the absence of real ICTR prosecutor supervision of the domestic judicial process as promised.23 International justice at the ICTR failed and the prosecution should have brought its own proceedings if it were to respect its mandate.
In 2010, the UN Secretary General called a meeting of the heads of state to advance his Millennium Development Goals. He proposed a co-presidency, one from a developed country and one from a developing country. Supposedly by chance, the two candidates were Rwandan President Paul Kagame and Spanish President Zapatero. The meeting of the heads of state was to take place in the Presidential Palace, but based on pressure from the families of Rwandan and Spanish victims, President Zapatero refused to participate and the meeting was moved to a nearby hotel. These events prompted the Spanish Government to actively solicit the extradition from South Africa of Rwandan General Kayumba Nyamwasa,26 accused of the murder of four Spanish nationals between 1994 and 1997 and thousands of Rwandans in the north of Rwanda and the DRC.
This all happened in 2010 as the UN High Commission for Human Rights was concluding an investigation initiated in the DRC. The UNHCR investigation was initiated in 2008, a few months after the Spanish court issued arrest warrants for the forty Rwandan officials.
Simultaneously, the UN Secretary General and President Kagame met in Madrid with other world leaders. A heated debate occurred in Geneva at that time to reach a consensus as to the final conclusions to the investigation by the UNHCR-mandated experts concerning crimes committed in the DRC. Military and civilian intelligence from Rwanda attempted to neutralise publication of conclusions implicating Rwanda and its army in the commission of international crimes in the DRC. A few short weeks after the meeting, investigators leaked to the press some of the conclusions implicating the Rwandan army for crimes against Rwandans and Congolese. After much difficulty, the UNHCR published the official report on October 1, 2010, known as the DRC Mapping Report, establishing the commission of serious violations of international humanitarian law including possibly genocide by the Rwandan Army and the senior authorities of Rwandan government both in Rwanda and in the DRC.27 This report referred specifically to the resolutions of the Spanish Court (Audiencia Nacional), its strengths, and its approval of the universal jurisdiction of the Spanish Court.28
This decision had consequences and more may come. Many forces in Congolese civil society, both in the Congo and elsewhere, can provide impetus for investigating and judging crimes before Congolese Courts or for the formation of mixed or hybrid courts, shared with the UN. This is necessary since the jurisdiction of the International Criminal Court only commenced on July 1, 2002. The UN has called for investigation and prosecution of these past abuses to end impunity and avoid the repetition of similar crimes.
The doctrine of universal jurisdiction allows national courts to try cases of the gravest crimes against humanity, even if these crimes are not committed in the national territory and even if they are committed by government leaders of other states. Courts apply international law. These initiatives have been both widely applauded and criticised.29 The ICTR encouraged states to use their universal jurisdiction for international crimes committed in Rwanda.30 As we saw above from the actions of Prosecutor Jallow, the effect on the ICTR was ephemeral.
Following the 2008 Spanish court decision, Rwandan President Kagame asked the United Nations, the African Union, and the European Union to stop the “abuse” of universal jurisdiction by refusing to execute the international arrest warrants.31 Paul Kagame succeeded at the African Union in its Eleventh Summit in Sharm el-Sheikh on July 1, 2008.32 This occurred prior to the well-known decision of the African Union about Sudanese President Al Bashir’s International Criminal Court indictment. In 2009, at the UN General Assembly, Paul Kagame congratulated himself that this initiative about universal jurisdiction was taking place at the UN.33
In Spain, after many years of the application of the principle of universal jurisdiction, following the Eichmann trial in Israel (but with respect of international law), the government and the parliament have taken initiatives to neutralise or paralyse the application of universal jurisdiction. Pressure, either open or veiled, has been applied on the Spanish government, the prosecutor, members of the court, deputies, and senators, with a view to amending the law on universal jurisdiction. It was similar to US pressure on Belgium with the threat to move Nato headquarters from Brussels. Pressure was applied through state organisations or multinational companies. In Spain, it came from Rwanda and the US. These are examples of how economic and geo-political interests can influence legislators and state administrators to establish effective impunity for Rwandan criminals. In Spain, there were several stages:
It must be stressed that the prosecutor (Ministerio Fiscal), unlike in Anglo-Saxon countries, is organically part of the government, since the prosecutor general is named by the executive branch. This is a very serious change since it violates the principle of the separation of powers with respect to crimes in general and with respect to international crimes and the principle of extra-territoriality (and the compromise between investigating and rendering judgment according to the principle aut dedere aut judicare (Latin for “extradite or prosecute”). It would violate the principles of universal justice since it would be based on limits imposed by the government over such initiatives and lead to a serious risk that Spain’s international obligations would not be respected.
The Spanish courts first exercised universal jurisdiction in 1998 when the Audiencia Nacional indicted several Argentinean and Chilean officials for their alleged roles in abuses committed as part of Plan Condor.37 Spanish courts have continued to address serious violations around the globe for which no alternate forum has been found.
States have not only a right but also a duty to guarantee that the most severe crimes—those which are considered to be committed not only against the victims, but against the international community as a whole—do not remain unpunished. The amendments introduced to Spanish law constitute an important step backwards in the effort to develop coherent global processes of accountability for human rights atrocities. International law has developed since the Nuremberg and Tokyo trials to provide norms and venues for the exercise of universal justice, as seen in the ad hoc Criminal Tribunals for the Former Yugoslavia and Rwanda, the Special Courts for Sierra Leone, East Timor, and Cambodia, and the International Criminal Court. Each mechanism, acting in tandem with domestic courts, serves as an instrument for the enforcement of human rights and international humanitarian law. Universal jurisdiction is only one of the tools available in the fight against impunity for severe human rights violations. Until now, the Spanish universal jurisdiction law had managed to withstand political pressure rising to the level of that which ultimately compelled Belgium to revise its own universal jurisdiction legislation. It is in the interest of the international community as a whole to preserve this instrument as another avenue of justice, complementary to the ICC and potential hybrid courts.
In spite of Rwandan President Kagame’s statement that universal jurisdiction does not apply to “local laws,” it is essential for it to apply to the most serious crimes recognised in most countries of the world
Since the legal prosecutorial approach represented an important but insufficient step towards transforming the Rwandan conflict, preventing further violent incidents, and overcoming the tragedy of the last two decades, a group of prominent members of Rwandan civil society living abroad set out to start a dialogue from exile. Two people initiated the dialogue: the Hutu president of a victims’ association who lived in Brussels and the Tutsi former plenipotentiary ambassador of the current Rwandan government to the United Nations who lived in New York.
In 2004, ten Rwandan men and women from the diaspora met for the first time at a meeting organised by international facilitators in Mallorca, Spain. The Rwandans, both Tutsi and Hutu, were able to ascertain the different ways in which they each understood Rwandan history and the past according to their own personal, family, and community experiences. At the same time, they also discovered the extent to which they agreed on constructive proposals for the future. In 2006, after two years in the works, a second encounter referred to as the Intra-Rwandan Dialogue took place in Barcelona, Spain, giving rise to the International Network for Truth and Reconciliation in Central Africa. Twenty Rwandan nationals, both Hutu and Tutsi from the diaspora and the Rwandan heartlands, took part in this event. The meeting was organised with the sponsorship of Nobel Peace Prize nominee/candidate Juan Carrero and the support of both Nobel Peace Laureate Adolfo Pérez Esquivel, present at the meeting, and of the president of Senegal Abdoulaye Wade. The protocol of findings of the 2006 event, which called for a more inclusive Inter-Rwandan Dialogue, served as the foundation for the talks held at five subsequent meetings, entitled Dialogue Platforms, in 2007 and 2008.38
These five events took place in Washington, D.C. for twenty participants from the US and Canada; in Amsterdam for twenty participants from Holland, Belgium, and Germany; in Orléans, France, for twenty participants from France and Italy; in Barcelona, where the Platform for Rwandan Women was held; and finally in Kinshasa, DRC, where a special ad hoc platform was organised for Congolese participants coming from the eastern region of the country bordering with Rwanda.
In 2007 the Spanish parliament extended its support for this initiative and passed a resolution where all political parties unanimously agreed to offer technical, legal, diplomatic, and political support and urged to take it to an international level.39 Later in 2009, the State of Vermont Senate voted a resolution approving this international initiative for dialogue, affirming as follows:
Whereas, all of these individuals and organizations have focused on the future and continuing this larger Inter-Rwandan Dialogue as the legitimate foundation upon which to build a new Rwanda that all political, ethnic, social, and economic groups in the country, as well as the international community, can widely accept... Whereas, the Inter-Rwandan Dialogue is an exemplary and realistic model for the bringing together of opposing ethnic groups involved in major national and international conflicts, and this unusual and praiseworthy international dialogue should be universally applauded and encouraged, and if possible, this dialogue model should be extended to other countries in conflict, now therefore be it... the State of Vermont supports the implementation of the Inter-Rwandan Dialogue in its development and continuing implementation of the Inter-Rwandan Dialogue.40
In early 2009, the eighth Dialogue held in Mallorca, Spain, featured the participation of thirty Rwandan men and women from all Rwandan ethnic groups—Hutu, Tutsi and Twa—as well as two Congolese. Participants came from Africa, Europe, and North America. Celebrating five years of dialogue, they agreed to formally ask a Central African government to hold a Highly Inclusive Inter-Rwandan Dialogue, and request institutional and financial support from the international community.41 This process has continued until now to consider various initiatives at the international level. In all, more than 150 Rwandan leaders have participated in the process, including two former prime ministers, various former cabinet ministers, former ambassadors, political leaders, representatives from civil society, victims, as well as human rights organisations, and institutions devoted to peace and economic research. All have set their eyes on the future and on carrying on this inter-Rwandan dialogue as the legitimate foundation upon which to build a new Rwanda that can be widely accepted by all political, ethnic, social, and economic groups as well as by the international community.
1. It is important to mention that the 1993 Arusha Peace Agreement, facilitated by UN officials, tried to put an end to a war that, according to the signed document, started October 1, 1990. Unlike the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Security Council decided in November 1994 to limit the temporal jurisdiction of the Tribunal to the 1994 calendar year, although the year was not over; crimes committed prior to 1994 or after 1994 were not investigated.
2. Considering that the ICTR Statute states, among other provisions: “Expressing once again its grave concern at the reports indicating that genocide and other systematic, widespread and flagrant violations of international humanitarian law have been committed in Rwanda; Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them; Convinced that in the particular circumstances of Rwanda, the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the process of national reconciliation and to the restoration and maintenance of peace,” in Article 1, ICTR Statute, http://www.un.org/.
3. See the official statement about the conflict delivered by the Rwandan goverment (that many Rwandans would not assume): “For centuries, Rwanda existed as a centralized monarchy under a succession of Tutsi kings from one clan, who ruled through cattle chiefs, land chiefs and military chiefs. The king was supreme but the rest of the population, Bahutu, Batutsi and Batwa, lived in symbiotic harmony... On 1 October 1990, the RPF launched an armed liberation struggle that ultimately ousted the dictatorship in 1994 and ended the genocide of more than one million Batutsi and massacres of moderate Bahutu who opposed the genocide. After Kigali fell to RPA (RPF’s armed wing) on 4 July 1994, RPF formed a Government of National Unity headed by President Pasteur Bizimungu, bringing parties that did not participate in the genocide together.”, “History,” Republic of Rwanda, http://www.gov.rw/History?lang=en.
4. In Spain, thirty-five years after the end of the military dictatorship, there has been no success in re-orienting Franco’s memorial in the Valle de los Caídos (Valley of the Fallen), which continues to honour “those who died for God and Spain” and forgetting the dead among the defeated. Although thousands—considered enemies of the nation—were executed or put in prison after military and civil trials, no democratic government has declared illegal, null, or void such processes (including the 1940 military trial and execution of the democratic elected president of Catalonia, delivered to Franco by Gestapo from France). While victims of the victors were officially recognised and honoured, more than 100,000 forced disappeared continue to be in mass graves without identification and the real right to truth, mourning, and reparation.
5. See Pablo de Greiff, Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence (first annual report submitted to the Human Rights Council), August 9, 2012, http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session21/A-HRC-21-46_en.pdf.
6. A full analysis of the different judicial processes (ICTR, ICC, Universal jurisdiction, and initiatives for peaceful resolution of the conflicts in Rwanda and the Democratic Republic of the Congo can be found in Jordi Palou-Loverdos, “Justice et paix inéquitables: des risques? Compétence juridictionnelle, réalités judiciaires, vérité et résolution pacifique des conflits en Afrique Centrale,” in the frame of international seminar lessons for the defence at the ad hoc UN tribunals and prospects for International Justice at the ICC, Brussels, 2010, http://www.tpirheritagedefense.org/Conference2/Papers/Jordi_Palou_Loverdos_Justice_et_paix_inequitables_aussi_des_risques.pdf.
7. Spain does not set an example for crimes committed in the civil war between 1936 and 1939. See: http://ep00.epimg.net/descargables/2012/02/27/c38da9aeed611d25e02b591d615891a5.pdf.
8. ICTR sources indicate that ten people have been transferred from the ICTR to the national jurisdictions of France and Rwanda. See http://www.unictr.org/Cases/tabid/204/Default.aspx.
9. In at least three difference cases, the ICTR has refused to transfer cases to Rwanda on the basis of sub-rule 11bis of the Rules. See The Prosecutor v. Yussuf Munyakazi, Case No. ICTR- 97-36-R11bis, May 28, 2008; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-11bis, June 19, 2008; The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-R11bis, June 6, 2008. The ICTR has recently allowed transfers of Jean-Bosco Uwinkindi and Bernard Munyagishari, as can be viewed on the ICTR website.
10. See Gacaca Courts and other official Rwandan information on justice and reconciliation, http://www.gov.rw/Justice-Reconciliation?lang=en.
11. Thania Pfaffenholz, Darren Kew and Anthony Wanis-St. John, “Civil Society and Peace Negotiations: Why, Whether and how they could be involved,” Centre for Humanitarian Dialogue, June 26, 2006, http://www.hdcentre.org/en/resources/publications/filter/thania-pfaffenholz-darren-kew-and-anthony-wanis-st-john/.
12. Priscilla Hayner, “Negotiating justice: Guidance for mediators,” Centre for Humanitarian Dialogue, February 2009, pp. 12-13, http://www.peacemaker.un.org/sites/peacemaker.un.org/files/NegotiatingJustice_Hayner2009.pdf.
13. Colombia is another example. See Felipe Gómez Isa, “Paramilitary Demobilization in Colombia: Between Peace and Justice,” Fundación para las Relaciones Internacionales y el Diálogo Exterior, Working Paper Nr. 57, Madrid, April 2008, http://www.fride.org/download/WP57_Colombia_Desmili_ENG_abr08.pdf.
14. At least nine of them were away from Rwanda when the decision was made public; they held prominent positions, even within the UN: four of them worked for the hybrid peacekeeping forces in Sudan (UNAMID), including a Rwandan army general who was the second commander of such forces. A fifth served at the demobilisation arm of the UN Development Program (UNDP) in Nepal. Several public institutions had formally requested that the UN remove them and turn them over to justice (see: http://www.veritasrwandaforum.org/dosier/resol_Ban_Ki_Moon_es.pdf.).
15. See judicial resolution: http://www.veritasrwandaforum.org/dosier/resol_auto_esp_06022008.pdf; See also Martin Vidal, “Mistrust of Rwanda and African Union related to universal and international justice initiatives,” 2008, pp. 3-6. A lot of international media and international experts reported about that universal jurisdiction preliminary decision. See a selection of it in different languages at http://www.veritasrwandaforum.org/dossier_40ordres.htm. See also expert reports such as “The Spanish Indictment of High-ranking Rwandan Officials,” Journal of International Criminal Justice, Vol. 6, No. 5, pp. 1003-1011, http://jicj.oxfordjournals.org/cgi/content/abstract/6/5/1003.
16. Specifically, a) crimes perpetrated against nine Spanish victims—missionaries and aid workers—whose first priority was helping the local population and by so doing, were all inconvenient observers of the killings of Hutu inhabitants in both countries; (The cases of two Canadian victims, Fathers Claude Simard killed on Oct. 18, 1994, and Father Guy Pinard killed on Feb. 2, 1997, were also examined in this context.) b) crimes against Rwandans and Congolese, either perpetrated pointedly against various specific leaders, or systematically carried out as mass murders of hundreds of thousands of civilians; and c) crimes of war pillage: the systematic, large-scale plundering of natural resources, especially strategically valuable minerals.
17. See various UN Group of Experts Reports on Illegal Exploitation in the DRC, e.g., S/2001/357, April 12, 2001; S/2002/1146, October 16, 2002; and S/2008/773, December 12, 2008, among others.
18. See also video statement: “La tragedie rwandaise (1990-2000) à partir de l’instruction espagnole; du passé vers l’avenir: le dialogue intrarwandais” by Jordi Palou-Loverdos in the colloquium “Le drame rwandais: la verité des acteurs”, held before the French Senate, April 1, 2014, https://www.youtube.com/watch?v=mzSGKIF2rYs.
19. See official Spanish version: http://www.veritasrwandaforum.org/dosier/resol_auto_esp_06022008.pdf.
20. Statement made at the occasion of the presentation of the Report by the ICTR President before the UN Security Council, 5904th Meeting.
21. The statement written by RDF spokesman, Major Jill Rutaremara is quoted as saying, “The Military Prosecution authorities have today (11 June 2008) ordered and effected arrest of four suspects: Brig Gen Wilson Gumisiriza, Major Wilson Ukwishaka, Captain John Butera and Captain (Rtd) Dieudonné Rukeba.” See Ibid.: http://politics.nationmedia.com/.
22. In a letter to a victim’s relative dated September 1, 2009 by Mr. William Egbe, Senior Trial Attorney, the Office of the Prosecutor states: “Whilst the Prosecutor sympathises with you for the tragic loss of your relative he is unable to institute a new proceedings in respect of his murder as the incident in which he was killed has already been the subject of a final determination. The Prosecutor is aware of allegations relating to the involvement of various persons but the evidence available to him cannot form the basis for the indictment of any persons other than Brigadier General Wilson Gumisiriza, Major Wilson Ukwishaka, Captain Dieudonné Rukeba and Captain John Butera who have been already been prosecuted for this offence. The Prosecutor is also satisfied that the trial in Rwanda was carried out with due process and in accordance with international standards of fair trial. He has accordingly closed the case file.”
23. See exchange between Human Rights Watch (HRW) and ICTR Prosecutor, letter dated May 26, 2009 by Kenneth Roth, Executive Director of HRW; letter dated June 22, 2009 of ICTR Chief Prosecutor; letter dated August 14, 2009 by Kenneth Roth, http://www.hrw.org/en/news/2009/08/14/letter-ictr-chief-prosecutor-hassan-jallow-response-his-letter-prosecution-rpf-crime.
24. See official information from the US Embassy in Rwanda: http://rwanda.usembassy.gov/.
25. See cables from US Embassy in Madrid to US State Department: February 2, 2008, http://www.veritasrwandaforum.org/dosier/03.03.11_cable1.pdf; March 13, 2008, http://www.veritasrwandaforum.org/dosier/03.03.11_cable2.pdf; May 9, 20018, http://www.veritasrwandaforum.org/dosier/03.03.11_cable3.pdf; and May 23, 2008, http://www.veritasrwandaforum.org/dosier/03.03.11_cable4.pdf.
26. See English version of the Spanish Government Press release about the request of extradition, September 17, 2010, http://www.veritasrwandaforum.org/dosier/sol_extrad/100917_consejo_ministros_en.pdf.
27. “Statement by the High Commissioner for Human Rights Navi Pillay,” October 1, 2010, United Nations Human Rights Office of the High Commissioner, http://www.ohchr.org/Documents/Countries/CD/HC_Statement_on_Release_EN.pdf.
28. See “Final Report on most serious violations of human rights and international humanitarian law between 1993 and 2003 in the Democratic Republic of Congo (DRC),” http://www.ohchr.org/Documents/Countries/CD/DRC_MAPPING_REPORT_FINAL_EN.pdf United Nations Human Rights Office of the High Commissioner, particularly p. 461, Para. 1029. The UN High Commissioner stated: “The Mapping Report provides the most extensive account to date of the most serious violations of human rights and international humanitarian law committed in the DRC between 1993 and 2003. In listing these incidents, province by province, and in chronological order, it reveals the suffering that years of instability and conflict have inflicted on the country. In doing so, the Mapping report seeks to honour the memory of victims of the conflict, and helps reiterate the importance of ensuring accountability for past human rights abuses. We hope the report serves as an important step on the difficult path towards coming to terms with this period of intense human suffering... civil society, both international and national, contributed to this project by sharing information and discussing their views on transitional justice... In conflict situations, the biggest challenges include ensuring that civilians remain protected, that the laws of war are respected, and that the harm done to victims of violence is repaired. While we cannot undo human rights violations, we can try to ensure that they do not re-occur, by holding to account those responsible for past abuses,” http://www.ohchr.org/Documents/Countries/CD/HC_Statement_on_Release_EN.pdf.
29. See only three examples: Henry Kissinger (US former Secretary of State and National Security Advisor), “The Pitfalls of Universal Jurisdiction” for one side, Global Policy, July-August 2001, http://www.globalpolicy.org/component/content/article/163/28174.html; and Kenneth Roth (Executive Director of Human Rights Watch), “The Case for Universal Jurisdiction” for the other, Global Policy, September-October 2001, http://www.globalpolicy.org/component/content/article/163/28202.html. Years ago, giving their opinion about Universal Jurisdiction, former members of US Presidents Reagan and Bush Sr.’s administrations stated: “The most recent example involved a Rwandan general, Emmanuel Karake Karenzi, and whether he should be reappointed by the United Nations to serve as deputy commander of the joint United/Nations/African Union implementation force in Darfur. Karenzi commanded military forces accused of war crimes in the 1990s… For its part, Rwanda stood behind its general—so much so that it threatened to withdraw its (crucial) troops from the Darfur mission if Karenzi were forced out… But the situation became more complicated early this year, when a Spanish judge indicted Karenzi for offenses in Rwanda. Although Spanish nationals also were allegedly killed by the general’s forces, the indictment mostly involved Rwandan victims and was based on a theory of universal jurisdiction… What we are seeing is not the birth of a global rule of law but a type of judicial anarchy. Spain’s Judges should not be driving foreign policy at the United Nations, but they are;” see David B. Rivkin Jr. and Lee A. Casey, “Judgment without borders,” Los Angeles Times, October 6, 2008, http://www.latimes.com/news/opinion/commentary/la-oe-rivkin6-2008oct06,0,2219226.story.
30. See The Prosecutor v. Bernard Ntuyahaga, Case No. ICTR-98-40-T, Decision, March 18, 1999, p. 4.
31. James Karuhanga, “Rwanda: Abusing Universal Jurisdiction Dangerous - Kagame Tells UN,” AllAfrica.com, September 25, 2008, http://allafrica.com/stories/200809250330.html.
32. Sam Ruburika, “Rwanda: African Union Refuses Arrest Warrants Against Rwandans,” AllAfrica.com, July 7, 2008, http://allafrica.com/stories/200807071845.html.
33. See: “President of Rwanda Paul Kagame Addresses UN General Assembly,” MaximsNewsNetwork, http://www.maximsnews.com/news20091005RwandapresidentUNGA1091000106.htm; see also: Legal Committee Delegates See Principle of Universal Law as Safeguard against Impunity for Major Crimes: Some Caution on Risk of Abuse,” UN General Assembly, http://www.un.org:80/News/Press/docs//2009/gal3371.doc.htm.
34. See: Non-Legislative Motion 161/000433, http://www.veritasrwandaforum.org/dosier/D_126-14_eng.pdf.
35. See Jordi Palou-Loverdos and Olga Martin Ortega, “Preserving Spain’s Universal Jurisdiction Law in the Common Interest,” in Jurist, University of Pittsburgh School of Law http://jurist.law.pitt.edu/forum/2009/06/protecting-spains-universal.php.
36. See: “Ley Orgánica 1/2014, de 13 de marzo, de modificación de la Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial, relativa a la justicia universal,” Agencia Estatal Boletín Oficial del Estado, http://www.boe.es/diario_boe/txt.php?id=BOE-A-2014-2709.
37. The fate of the proceedings against General Augusto Pinochet is well known. While most of the 99 indicted Argentines were not extradited by Argentina, Mexico extradited former Argentinean military official Ricardo Miguel Cavallo in 2000. In 2001, Adolfo Scilingo was also detained, tried, and sentenced to a long prison term by the Audiencia Nacional for crimes against humanity committed in Argentina.
38. Supporters included Federico Mayor-Zaragoza, former UNESCO Secretary General (1987-1999), president of Cultura de Paz, and co-chairman of a top-level UN group, Alliance of Civilizations, and United States Congresswoman Cynthia McKinney.
39. See Non-Legislative Motion in support of the Inter-Rwandan Dialogue Process, April 25, 2007, http://www.veritasrwandaforum.org/dosier/congreso_diputados_eng.pdf.
40. See Senate Resolution, http://www.leg.state.vt.us/docs/2010/resolutn/SR0024.pdf.
41. See Veritas Rwanda Forum, http://www.veritasrwandaforum.org/dialogo.htm.