THE RWANDAN CONFLICT AND THE GENOCIDE CONVENTION: IMPLICATIONS FOR

Khoti Kamanga*

I. INTRODUCTION

On April 6, 1994, at 8:30p.m. local time, a Falcon executive jet flying over 's capital, , was hit by a ground-to-air rocket. Among the plane's passengers were General Juvenal Habyarimana, the Rwandese President, and his counterpart, Cyprien Ntaryamiral- Both leaders perished in the crash. Ironically, the two Presidents were returning from a regional peace summit in Dar es Salaam, Tanzania, dedicated to the troubled situations in their countries,2. Rather than being an isolated incident, the "attack" is widely held to have constituted an integral component of, and in fact a cue to the genocidal killings that were to begin a few minutes later3. Quite apart from

* Khoti Kamanga, LL.M (Hons) Public International Law, LL.M European Union Trade Law (ASIR), Ph.D (Patrice Lumumba University), Lecturer, Department of International Law, Faculty of Law University of Dar es Salaam, Tanzania. The author wishes to thank Dr. Mpazi Sinjela for providing the intellectual seeds from which grew this paper, finalised at the University of Amsterdam in the course of studies in European Community Law, following kind grant of scholarship by NUFFIC. For this reason I am indebted to Prof. Peter Malanczuk and colleagues of the 1996/97 class at the Amsterdam School of International Relations (ASIR). 1 For further details and versions (and, 4 are advanced) of the plane crash, see Alain Destexhe, Rwanda and Genocide in the Twentieth Century. New York, New York University Press, 1995. See also African Rights, Rwanda: Death, Despair and Defiance, London: 1995. 2 Tanzania was the facilitator of the so called Arusha Accords, meant to end hostilities between government forces and the Rwandese Patriotic Front (RPF), and to the establishment of "a broad-based transitional government." See Security Council Resolution 893 (06 January 1994) which makes reference to the "Arusha Peace Agreement."" 3 See the blow by blow account by Lindsey Hilsum who happened to be in Kigali at the outbreak of the mass killings in "Doomsday," BBC Focus on Africa, July-September, 1994, pp.6-8. the mass killings, the attack on the plane gives rise to a serious international legal problem (in addition to the rhetorical question of "whodunit") straddling two branches of the law: Use of Force, on the one hand, and International Humanitarian Law (IHL), on the other. To subject a civilian aircraft to attack, whether in times of peace or war is generally prohibited under rules of international law pertaining to the use of force against the safety of civilian aircraft in service4, and so too, under that branch of IHL seeking to protect "civilian objectives'5. Within minutes of this fatal incident, Rwanda was gripped by mass killings of unprecedented magnitude, carried out with astounding rapidity and brutality6 Parallel to this was a refugee and internal displacement problem on a scale previously unknown to either Rwanda or the subregion. And since then, developments in the area7 have not ceased to be intense, dynamic and expansive as to defy legal analysis in a single article. The focus of this paper is limited, primarily, to the legal implications of those tragic events for Tanzania, in light of the Convention for the Prevention and Punishment of the Crime of Genocide8 (hereafter the Genocide Convention), and international law in general.

4 This is in accordance with Articles 1 and 2 of the Convention to Discourage Acts of Violence against Civil Aviation (Montreal Convention) reproduced in 10 International Legal Materials, (1971), p.1151. Supporting case law includes Questions of Interpretation and Application of the 1971 Montreal Convention arising from the aerial Incident at Lockerbie, Libya v. UK, LC.J. Reports, 1992 and Libya v. U.S., LC.J. Reports, 1992. Among detailed studies on the question, is Sami Shubber, "The Destruction of Aircraft in Flight Over Scotland and Niger: The Questions of Jurisdiction and Extradition Under International Law" 66 British Yearbook of International Law, 1995, pp. 239-282. 5 Of particular relevance are, Convention Relative to the Protection of Civilian Persons in Time of War 1949 (Geneva Convention IV) and Additional Protocol II 1977. 6 The genocide consumed nearly 1 million lives in the space of several months making it the largest in the country's history. The 1971 genocide in Bangladesh obliterated nearly 3 million lives. 7 One strand is the manner in which repatriation of Rwandese refugees from eastern Zaire (then) was "secured," and the alleged involvement of the Rwandese authorities in the military campaign that led to the ouster of Marshall Mobutu's administration. We are further witness to a probable shift in the balance of power in neighbouring Angola, clashes in the Republic of Congo and renewed tensions in the Central African Republic, all of which are likely to rekindle the "sovereignty/intervention" discourse. 8 Full text in Treaty Series, Volume 78 (1951), p.277. Since then the binding nature of the prohibition of genocide has been reaffirmed in a number of cases, including the Barcelona Traction case (I.C.J., Reports, 1970, at para 33 and 34). More recent case law includes that emerging from Ethiopia and the UN tribunals on Yugoslavia and Rwanda. See in addition, Boyle, Francis A., The Bosnian People Charge Genocide: Proceedings at the ICJ Concerning Bosnia v. Serbia on the