By The Rwandan Lawyer
INTRODUCTION
For decades France viewed post-colonial Africa as an exclusive sphere of influence, or pré-carré. France still maintains military influence and stations thousands of its troops across the continent, from western Senegal to the Horn of Africa. Among countries with which the cooperation was concluded there is counted Rwanda under Habyarimana Juvenal regime who governed the country from 1973 to 1994.The issue which motivated the present study is that under the French military cooperation a genocide was committed by the side which that regime and the current regime of Kigali under Anglophone influence is still involving this European superpower in those horrible killings that took away thousands of Tutsi and non-extremist Hutu. This Rwandan claim against France still pushed its politicians to appoint different commissions to deeply determine the real role of their country in the Rwandan drama pending notably the commission entrusted by the parliament to deal with this issue and the recent Duclert commission constituted by historians which issued its report on the same matter. In general, the two commissions concluded that France bears a moral, political and institutional liability corroborating Sarkozy’s statement who talked of political errors all excluding an eventual criminal liability of this state.
The present article intends to analyze the legal sphere of the French presence in Rwanda during the civil war which amounted to the genocide and the victory of the Tutsi rebellion
1. WHAT IS CRIMINAL LIABILITY?
In general term, liability is a duty imposed upon a person or a legal entity to answer for legal consequences of his/her actions. Criminal liability is then a legal duty imposed upon a person to answer for his/her criminal acts and to face penalties provided for in incriminating legal texts. Criminal liability is opposed to civil liability which is the duty to compensate the injured person due to one’s fault. By constitutional principles, criminal liability is personal while civil liability is defined within the limits of the law.
As so defined, criminal liability should be distinguished from culpability on the one hand and imputability on the other.
Imputability is the capacity to discern the consequences of one’s actions. Imputability means that the offender has a certain level of discernment and can act with free will. For example, persons with serious mental disorders, minors or some adults should be relieved of the consequences of their criminal conduct; they are not held criminally liable.
As for culpability, this describes the degree of one’s blameworthiness in the commission of a crime or offence. The culpability implies the existence of fault. This might be intentional fault or negligence which constitutes the intentional element of a crime. In the absence of fault, there is neither culpability nor crime. Modern crimes codes in the United States usually make distinct four degrees of culpability and this is shown by the following expressions:
A person acts purposely with respect to a material element of an offence when: if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
A person acts knowingly with respect to a material element of an offense when: if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.
A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
In nutshell, there is criminal liability when a fault (culpability) can be imputed (imputability) to the defendant. Therefore the legal equation: Criminal liability = culpability+ imputability.
2. WHAT IS CRIMINAL COMPLICITY
An accomplice is a person knowingly aids or abets the offender in preparing, facilitating or committing the offence, or a person who incites the offender. It is an individual who participates in the commission of a crime knowingly, willingly, and with common interest. It is an individual who knowingly; helps the offender (s) of a crime, in preparing, facilitating or committing it, whether or not he/she physically commits the act itself. The complicity is thought of only when the offender performs one of the following acts which are part of the definition of accomplice. Therefore, a person may participation as an:
Accomplice by instigation (abetting)
Accomplice by instruction
Accomplice by providing necessary means
Accomplice by providing aid and assistance
Accomplice by concealing criminals
The words ‘aid and abet” are words to be given their ordinary meaning. The suppliers of equipment for a criminal offence are aiders and abettors.
3. STATES AND INSTITUTIONS IMPLIED BY RWANDA
Rwanda denounces a series of states and international institutions for a passive or active liability in the genocide of 1994.
1. International Community
In 100 days the Rwandan regime at the time, along with its militias, murdered over 800,000 people. They targeted Tutsis, but also politically moderate Hutus and those who tried to help their neighbors and friends.
Why did no one heed the early warnings? As early as January 11, 1994, almost three months before the killings began, the commander of the UN force in Ruanda (UNAMIR), Romeo Dallaire, had sent a message to his superiors in New York. In the so-called “genocide fax,” Dallaire warned that he had received information on the existence of detailed plans for massacres. According to his informant, militiamen in teams of 40 people were capable of killing over 1,000 people in 20 minutes.
After the genocide had begun, Dallaire sent desperate appeals to UN headquarters for more peacekeepers and a robust peacekeeping mandate, in order to be able to protect the population. Instead, the UN reduced the number of peacekeepers. Presumably out of fear of another disaster like the failed intervention in Somalia, they looked the other way and did not want to believe that such atrocities were happening.
2. Belgium
Belgium, as the former colonial master of Rwanda, had a deep political connection with that country. When UNAMIR was formed in October 1993, they contributed the largest Western contingent. There were further reasons for Belgian involvement in the mission. After the Cold War, Belgium needed a rationale for keeping a large and well-equipped national army; in order to preserve its status, Belgium tried to present itself as the African peacekeeping specialist (African Rights 1995: 1112). Early on, Belgium knew of the ethnic and political killings so it began to argue for a stronger UNAMIR mandate, but no other state was interested in supporting the mission. After ten Belgian peacekeepers were killed on April 7, one day after the genocide had begun, Belgian public opinion that had been uninterested before, began to lobby for “the boys to be sent home” . In order to save face and not to lose its status as “African peacekeeping specialists”, Belgium began to petition for the complete withdrawal of UNAMIR, which was supported at the Security Council as no other state had an interest in the mission. UN Secretary General Boutros-Ghali said that Belgium was “afflicted with ‘the Somalia Syndrome’: pull out at the first encounter with serious trouble”. After the debacle with the dead Belgian peacekeepers, the only time the country showed any interest in Rwanda was when Belgian, French and US soldiers came to rescue expats between April 7 and 10. The quick and effective rescue mission of foreigners demonstrated what would have been possible had the international community been serious about stopping the genocide. Belgium knew about the nature of the killings and had the capacity to prevent and stop the genocide. However, the “shadow of Somalia”, its concerns about losing face and satisfying voters at home stopped them from doing so.
3. United States
The United States is often blamed as being most responsible for inaction in Rwanda. This is partly because since the end of the Cold War, “no international action can be taken without the leading role of the United States”. As early as 1993, CIA studies warned of imminent massacres with up to 500,000 potential victims (Des Forges 2000: 141; Power 2003: 339). Before the genocide began, major powers knew “that something terrible was underway in Rwanda” and that there were plans for genocidal killings. Kuperman (2000: 101) states that by April 20, the US must have known about the genocide. However, since the death of its rangers in Somalia, the US had decided to “stop placing the agenda of the UN before the interests of the US. President Clinton, who was worried about his poll ratings after bringing home body bags from African missions, had decided that a range of factors must be met in order for the US to approve future UN peacekeeping missions (Bellamy and Williams 2010: 107-108): The Presidential Decision Directive 25 (PDD-25), although not published until May 1994, strongly influenced US decision-making in April 1994 (Scheffer 2004: 129). Unfortunately for the people of Rwanda, their country did not “qualify” for a US-sponsored peacekeeping operation under PDD-25 .
In addition to the memories of Somalia, the United States had never had “national interest” in Rwanda, one of PDD-25’s many requirements. Power contends that Washington simply “remembered Somalia and heared no American demands for intervention”. Citizens have a powerful voice in lobbying their government to place topics on the policy agenda. However, there was no such pressure in 1994, owing largely to the absence of international media in Rwanda. Reports about the conflict also demonstrate Western misunderstandings of African conflicts: Instead of seeing the killings as extraordinary, there was the belief that “these people do this from time to time”. Government officials realized that they would look ridiculous calling the killings in Rwanda genocide and then do nothing. Apart from moral obligations, there are also legal requirements. Under the 1948 Genocide Convention, the international community is obliged to act if genocide occurs anywhere in the world (Genocide Convention 1948). This led to a “dance to avoid the g-word” in the US. The US’ response to the Rwandan genocide demonstrates all three major reasons for inaction: the “shadow of Somalia” as well as inaction because of a lack of national interest and internal pressure.
4. Catholic Church
To what degree were Christian Churches involved in the genocide of 1994? Does the Church’s guilt lie merely in a sin of passivity, in the actions of few bad apples within the sacrosanct lines of the Clergy, or did it have a role on actively shaping the ethnic and political realities that made the genocide feasible and possible? In the years following the genocide, a major denunciation has imputed the Church for its passivity and inaction in the face of the slaughters, committing a sin of omission and lack of action. Others have acknowledged the allegations against specific individuals within the clergy, yet deny the universal responsibility of the Church as an institution – including Pope John Paul II; in a communication released by the Vatican in 1996, John Paul affirmed that ‘the Church could not be held responsible for the guilt of its members that have acted against the evangelic law’. In support to this claim, it has been argued that, in Rwanda, the Church ‘was also one of martyrs’ (The Tablet, 1994), and neglecting this aspect would certainly result in an unbalanced account of history. Yet, the case for Christian Churches’ deep and direct implications in the Rwandan violence, with their responsibility going well beyond silence or the actions of a few, remained strong over the two decades following the genocide, and eventually prevailed with the statements made by Pope Francis in 2017. Whichever reading of history one should adopt, it remains undeniable the role of the Church in the Rwanda massacres was far from a simple phenomenon, but should instead be analysed as the result of a set of intricate dynamics.
5.France
In the analysis of investigative journalist Linda Melvern, documents released from the Paris archive of former president François Mitterrand show how the RPF invasion in October 1990 was considered as clear aggression by an Anglophone neighbour on a Francophone country. The documents are said to argue that the RPF was a part of an “Anglophone plot”, involving the President of Uganda, to create an English-speaking “Tutsi-land” and increase Anglophone influence at the expense of French influence. In Melvern’s analysis, the policy of France was to avoid a military victory by the RPF. The policy had been made by a secretive network of military officers, politicians, diplomats, businessmen, and senior intelligence operatives. At its centre was Mitterrand. As a matter for the French presidency, this foreign policy was not referred to parliament. Melvern goes on to state that most of Rwanda’s arms deals were negotiated through the Rwandan embassy in Paris, even if these weapons were not used for the genocide. When the genocide was over, according to her, extensive records were found in the embassy offices, but none of them concerned Rwanda’s relationship with France, as the documents had been systematically destroyed by Colonel Sebastien Ntahobari, Rwanda’s military attaché in France.[4] The book also relates other forms of military assistance the government of France gave the Rwandan government, similar to what France was doing in many other African countries and part of the “Françafrique” politics. A French military co-operation team was openly acknowledged to be in Rwanda, and was thought to have included forty seven people. These people were attached to key units in the army and in the gendarmerie as “advisers” or “technical assistants”. A list of Rwandan officers prepared by Rwandan army officers within the Rwandan Ministry of Defense and dated March 5, 1994, shows three French nationals working as “technical assistants” in the reconnaissance battalion. In the Rwandan air corps, there were two French flying instructors, a navigator, an air traffic controller, and a mechanic. In the para-commandos, under Colonel Aloys Ntabakuze, there were four French nationals including a major in the French Army.
4. LEGAL ANALYSIS
France intervened militarily in Africa nineteen times between 1962 and 1995. Most of the operations were ostensibly to protect French nationals or subdue uprisings against legitimate governments. Yet Professor Shaun Gregory of the Department of Peace Studies at the University of Bradford in England says the standard for military support was contingent on an African leader’s willingness to support French interests. As France’s former colonies in Africa gained their independence in the early 1960s, most signed bilateral treaties pledging various degrees of military cooperation and support. Most of these treaties exist today, though some remain state secrets. France expanded these arrangements in the mid-1970s to include the former Belgian colonies of Burundi, Rwanda, and Zaire—now the Democratic Republic of Congo. Currency links, entrenched French business interests, and close personal relationships between governing elites all contributed to the maintenance of France’s preeminence in the region from the 1960s to the 1990s.
The turning point came with the 1994 genocide in Rwanda. Some say that France’s humanitarian intervention there in June saved thousands of lives and stabilized the region. Critics, however, point to another French operation in April of that year, whereby a smaller force evacuated French nationals and certain “Rwandan personalities,” including some government officials who were accused of genocide. Andrew Wallis, a researcher at the Department of Peace Studies at the University of Bradford, goes so far as to link military support for the Hutu regime with the slaughter that eventually occurred. The French embassy in the U.K. strongly denied the claim, saying that “France acted not only in order to prevent the tragedy, but also to mobilize the international community to come to the aid of the genocide victims.” Still, Gregory says Rwanda marked a turning point for French policy in francophone Africa.
Report of DUCLERT commission
In a nutshell, the voluminous document of 900 pages produced by the DUCLERT commission constituted by historians may be summarized through six points:
1. There is no criminal liability imputable to France as an accomplice in the genocide of 1994;
2.the appellation genocide against Tutsi was supported by some African and Asian countries was rejected by US, Canada, Australia and the European union in favour of Rwandan genocide to include moderate Hutu and many Hutu massacred by Rwandan patriotic Army during the civil war;
3. Catholic Church when Vatican was visited by KAGAME Paul begged pardon for individual involvements of some clergymen but did not recognise the liability of the institution;
4. If the criminal liability of France as accomplice of genocide was recognised, Rwanda may claim civil damages for committed crimes and France would be compelled to pay them as well it occurred in the case of the 6 millions of Jews killed during the second world war whereby Germany was retained as guilty and held to pay damages to Israel;
5. Mitterrand administration is retained a moral, political and institutional liability as well as that imputed generally against the international community and political errors as underlined by the former French head of state Nicolas Sarkozy; Historian Duclert told France 24 that Mitterrand was blinded by an effort to extend France’s post-colonial influence in Rwanda, and saw events though an ethnic prism. Mitterrand had close ties with Rwanda’s Hutu president Juvénal Habyarimana, whom the report described as racist, corrupt and violent. His death in an airplane crash unleashed the genocide.
6. The turquoise operation which was resolved in the last month of the war is not guilty of any crime committed in Rwanda given that it acted mandated by UN; it failed to save the victims because it arrived in the region late; if occupying the western regions of Rwandan facilitated the ancient regime officials to flee and escape from justice, catching them was not included in its mandate and doing so may not insure a fair trial instead it may occasion the revenge or justice of the victor over the vanquished. Indeed, the report dismisses the accusations that may have been made against Operation Turquoise, which was launched at the end of June 1994. Even though the commission members indicate that this operation was late and that it may have initially been subject to certain ambiguities in the political directives received, they stress that this mission nevertheless enabled the rescue of several thousand Tutsis.
However, according to one source, “the report provides detailed and unpublished analyses – as it cross-references numerous documents – on the main subjects that have crystallized questions about France’s involvement between 1990 and 1994, whether it concerns arms deliveries to the Rwandan regime, operational involvement with the Forces Armées Rwandaises, or various episodes such as the Bisesero massacre in [June] 1994 or the unrest caused by the Rwandan interim government in the Southern Humanitarian Zone [then controlled by the French army].”
To sum up our critical legal analysis, the report of DUCLERT Commission is not different from that issued by the other commission previously appointed by the French parliament on the same purposes.
It goes without saying that this report swept all Kigali expectations to finally attribute the criminal liability to French government and thus benefit from damages resulting from the ignominious offences.as emphasized by the spokesman of Survie Association, David Martin, first what was needed is a recognition of complicity from France and apologies to the Rwandan people, the Rwandan government. Second there should be trial for people who have taken decisions (during 1994), have assisted in decisions.
CONCLUSION
Although the report’s conclusions seem to mark a notable shift in France’s analysis of its controversial role in Rwanda at the beginning of the 1990s, the Duclert commission has denied the accusation, of a legal nature, that has long hovered over Paris’ past actions in the ‘Land of a Thousand Hills’.“Was France complicit in the Tutsi genocide? If this means a willingness to join the genocidal enterprise, there is nothing in the archives consulted that would suggest this,” say the authors. However, the authors do not exonerate the French Republic, saying instead that it bears “overwhelming responsibilities.”
The commission has drafted a long list of its shortcomings. These include: “lack of coordination powers and absence of effective checks and balances”; “political [and] institutional responsibilities, both civilian and military”; “parallel chains of communication and even command”; “bypassing the rules of engagement and legal procedures”; “institutional abuses covered up by the political authority or in the absence of political control”, “an ethnicist reading” of the Rwandan situation, etc.
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