Reparations for Survivors of the Genocide in Rwanda

REPARATIONS FOR SURVIVORS OF THE GENOCIDE IN RWANDA: A TOOL FOR UNITY AND RECONCILIATION?

ISMENE NICOLE ZARIFIS

Introduction

Despite the fact that 15 years have passed since the 1994 Rwandan genocide, the socio-political context in the country today continues to be dominated by the effects of the conflict.. In response, the Rwandan Government led by President Paul Kagame has since adopted numerous measures to address the harm caused by the genocide and to prevent the country from falling into crisis once again. However, despite the variety of measures that have been adopted, one of the challenges the government continues to face at present is how to grant reparations to the survivors of the genocide. Questions that the government has had to tackle include: What form of reparations would be most adequate given the socio-cultural context, history and particular characteristics of the genocide? To whom should reparations be awarded? Who should grant reparations; and what is the feasibility of granting reparations to large numbers of persons with different needs? As the Vice-President of the Supreme Court of Justice related, the unresolved question that continues to linger on the minds of government officials is whether to grant survivors reparations at all, beyond the measures already adopted in their favour.1 The government’s position is rooted in the idea that granting reparations to survivors will contribute to the promotion of divisionism2 and potentially cause new dissatisfaction among those who will not benefit from the reparations. Officials suggested during the visit that the granting of such reparations would compromise the government’s policy of unity and reconciliation.3 As such, the government is reticent to issue reparations, notably monetary compensation, on behalf of one group to the exclusion of the other,

1 Interview with the Vice-President of the Rwandan Supreme Court on 17 April 2009. These views were also expressed by a representative of the Rwandan National Commission on Unity and Reconciliation in another interview on 16 April 2009. 2 Divisionism is a term used by the government to describe one of the causes of the 1994 genocide, in which the population was taught to believe there were innate superior/inferior differences between the Hutus and Tutsis. 3 Interviews at the Rwandan National Commission on Unity and Reconciliation (n 1 above). thereby risking the perception of perpetuating divisions in society and sparking renewed resentment between survivors and perpetrators. Arguably, the extent and nature of the abuses committed during the Rwandan genocide fall within the category of abuses that are defined as the most serious war crimes under international law.4 As such, the state has an international obligation to guarantee the right to an effective remedy to victims of gross human rights violations and war crimes.5 Interviews with victims’ associations during the April visit confirmed what has been well documented on the effects of the genocide in Rwanda on society, generating thousands of victims who suffered a variety of abuses and who continue to live with the effects of the harm caused 15 years ago.6 In response to the questions posed above, this paper seeks to show that the granting of reparations has the potential to contribute to building lasting reconciliation in Rwanda rather than perpetuating divisions in society. In doing this, the paper will first evaluate the measures adopted by the government. It will then compare these to the current views and concerns of the survivors. Thirdly, the paper will outline the challenges to providing a more adequate and comprehensive response to genocide survivors through the adoption of a national reparations program with a focus on social justice for victims. The findings of this paper are primarily based on a fact-finding visit to Rwanda from 15 to 24 April 2009. During the visit, the author interviewed key stakeholders, including government officials, national human rights organisations, members of the media, and genocide survivors. Prior to the visit, the author consulted human rights reports on Rwanda, academic sources on transitional justice in Rwanda and documents on international principles on the right of victims to reparations. Most critical to this study was The handbook on reparations, which sets out key comparative experiences of reparations programmes for mass human rights violations. Also fundamental to the

4 Genocide is a war crime, outlawed in the Geneva Conventions and included in the Rome Statute of the International Criminal Court. 5 See, generally, the United Nations (UN) Basic Principles and Guidelines on the Right to a Remedy and Reparation for victims of gross violations of international human rights law and international humanitarian law (UN Basic Principles and Guidelines), available at http://www2.ohchr.org/english/issues/remedy/principles.htm 6 Rwanda: The Preventable Genocide (2000) Report of International Panel of Eminent Personalities to Investigate the 1994 Genocide in Rwanda, available at the National Commission on Unity and Reconciliation website; Interviews with representatives of non governmental organisations like IBUKA, Association des Veuves du Genocide (AVEGA), PROFEMMES and the KIGALI MEMORIAL CENTER. study was the United Nations standards setting forth states’ obligations to repair mass violations. Finally, the author reviewed works by scholars such as Mamdani, Boraine, Kritz and Goldstone who have sought to shed light on the interconnectedness between the concepts of truth, justice, reconciliation in post-conflict societies. This paper seeks to complement existing works by showing how a national reparations program in Rwanda can contribute to the long-term peace and justice process in that country.

I. Situation of survivors of the genocide

Statistics show that the genocide of 1994 resulted in unprecedented numbers of victims in the country: an estimated one million people were killed in a period of 100 days while 300 000 children were orphaned and 500 000 women widowed. Further, 120 000 people were detained in prison and over three million Rwandans fled the country to seek refuge.7 Further, rape was used as a strategy of war by the perpetrators, subjecting women to all forms of gender based violence and HIV/AIDS infection.8 According to survivors’ associations, the direct effects of the harm caused to survivors of the genocide have been devastating, immediate and long-lasting. In some cases, physical and mental health of survivors have been affected, families have been destroyed, survivors have been deprived of their land, and left homeless, without means to earn a living or access basic social services.9 Women and children were the most affected, turning them into widows and orphans in a matter of days.10 Both groups suffer the consequences of the genocide in distinct ways. The majority of women survivors suffer from HIV/AIDS as a result of rape that was used as a tool of punishment by the perpetrators.11 Further, while the law on succession has been modified to allow women equal rights to inherit property, socio-cultural norms continue to present obstacles to women attempting to secure ownership of their marital property. 12 Consequently, service

7 ‘A Quick Look at Reconciliation Work in Rwanda’, Publication of the Rwandan National Commission on Unity and Reconciliation, Kigali, Rwanda 2. Also see Rwanda: The Preventable Genocide (n 6 above). 8 Rwanda: The Preventable Genocide (n 6 above). 9 Interviews with organisations such as IBUKA, AVEGA, National Assistance Fund for Needy Victims (FARG) and the Memorial Center (Social Programs) 10 Interviews with representatives of AVEGA and FARG. 11 Rwanda: The Preventable Genocide (n 6 above). 12 Interviews with AVEGA representatives. providers confirm that, securing adequate shelter and land rights for widows constitute primary concerns and challenges.13 Survivors who were children during the genocide continue to suffer emotionally from having lost their parents and along with that, critical family support necessary for their development.14 Most of these orphans are now forced to manage their own households with limited access to shelter, education, health services and means of earning an income.15 Both widows and orphans experience depression, in some cases preventing them from functioning normally in society.16 While invisible in many cases, the psychosocial effects of the violence on survivors and perpetrators alike is immeasurable. Persons suffering trauma from the genocide are referred to as the ‘walking dead’.17 Many of the survivors continue to live with the effects of the trauma, depression and constant fear of being targeted by those perpetrators who have remained in their communities.18 Even though 15 years have passed, survivors are still burying their loved ones.19 While survivors suffer from the loss of family members, perpetrators suffer from feelings of shame and guilt, especially in the context of Rwanda where family members, friends and neighbours turned against each other as a result of the policy of ethnic hatred promoted by the government at the time. 20 Ethnic divisions and hatred eventually became institutionalised. As such, victims’ associations say that the numbers of persons being treated for depression and other mental illness related to the genocide has been increasing.21 Beyond the individual and direct harm suffered by the survivors, the widespread nature of the killings resulted in a complex set of social, political, and economic consequences for the society as a whole. The economy was ruined and the social-moral fabric of Rwandan society was destroyed.22 Specifically, given the significant involvement of the population in the killings, many victims and perpetrators are still

13 Interviews with AVEGA, HAGARUKA, FARG. 14 Interviews with AVEGA; Interview with Francine Uwamohoro, child genocide survivor working with FARG. 15 As above. 16 Interviews at the Kigali Memorial Center, Representative of Social Programs. 17 G Prunier, The Rwanda Crisis, 1959-1994: History of a Genocide, (1995). 18 Interview at IBUKA. 19 As new mass graves are continuously being identified through the Gacaca hearing process, burial of the remains are scheduled during the annual commemoration period of the genocide. Burial of 19 people on Sunday 19 April 2009 at the Kigali Memorial Center. 20 See the Law establishing FARG. Similar views were expressed by representatives of LDGL 21 Interviews with representatives of AVEGA and FARG. 22 ‘A Quick Look at Reconciliation Work in Rwanda’ (n 7 above). grappling with the challenges of living side by side in the same communities.23 Many perpetrators who confessed before the Gacaca are now serving community service terms which involve them in public service works around the country, but where they are essentially free to circulate in society.24 As such, the feelings of fear, distrust, anger and a sense of impunity for the crimes committed runs high among the survivors.25 In response to the 1994 genocide, the Rwandan government and the international community took steps to establish accountability mechanisms to address violations. Rwanda for its part established a truth and justice commission, which aimed to record the truth about the events that led up to 1994. 26 Additionally, it began holding criminal trials in its national courts. However, with 120 000 detainees awaiting trial, the Government decided to rely on the Gacaca traditional justice system to alleviate the backlog, and it began to hear cases related to property damage and pillaging.27 For its part, the United Nations established the International Criminal Tribunal for Rwanda (ICTR) to try persons with the most responsibility for the planning and executing of the genocide.28 While these mechanisms attempted to address the need for criminal justice, victim’s associations confirm that these mechanisms have been extremely limited in their capacity to provide an effective remedy for the thousands of victims of the genocide.29 In the case of the Gacaca, government sources and civil society confirm that most of the perpetrators are indigent themselves, therefore, incapable of compensating the victim for material damages.30 Moreover, Gacaca is not capable of providing a remedy for irreparable harm suffered. In some cases however, proceedings may involve acts of apology by the perpetrator, and the agreement to restore lost/damaged property or housing to the victim.31 With respect to the formal justice system, the survivors’

23 Interview with representatives of IBUKA 24 During the visit, the author observed numerous community service workers (serving their Gacaca sentences) performing agricultural or construction projects in and outside of Kigali, in close proximity to resident communities. 25 Interviews with IBUKA representatives. 26 Rwanda: The Preventable Genocide (n 6 above. 27 Interviews at the National Secretariat of Gacaca Courts. 28 See the statute of the International Criminal Tribunal for Rwanda (ICTR Statute). Confirmed in interviews with ICTR staff. 29 Interviews with representative of IBUKA and LDGL 30 Interviews with the Vice President of the Rwandan Supreme Court as well as in other interviews with representatives of LDGL and IBUKA. 31 Interviews at the Gacaca secretariat. This also came out in interviews with representatives of Collectif des Organisations des Droits Humains (CLADHO). association, AVEGA, confirms that victims only bring cases for reparations when they know the perpetrator has the capacity to pay compensation, otherwise, claims for reparations are not pursued.32 Further, claims for reparations for rape cases are extremely rare due to an associated sense of shame shared by the victim, her family and community.33 Finally, the ICTR has been extremely limited in its capacity to order reparations for similar reasons of lack of capacity of the perpetrator to pay. These findings are supported by a study on the ability of courts to order reparations in cases of mass violations, and concluded that, “pursuing individual cases through the courts tends to be a very incomplete way of addressing the scale of the challenge represented by the victims in post-conflict settings. Courts only have the capacity to attend to a limited number of cases. Furthermore, those victims without resources or access to legal counsel and courts - though equally harmed - often go without redress.” 34 As such, studies reflect that reparations are made significantly more effective when linked to other complementary initiatives, such as truth-seeking, institutional reform, accountability mechanisms and symbolic measures including commemoration.35 On this point, Rwandans confirm that the primary concerns of the survivors of the genocide are not limited to accountability through criminal justice mechanisms, but recognition of their current situation (poverty alleviation, access to basic social services, and greater participation in public interest matters) and the need to live in conditions of peace and security are equally important.36

II. Reparations for survivors in Rwanda: Achievements and challenges

In recognition of its duty to help ‘needy citizens’, the government adopted Law 02/98, Establishing a National Assistance Fund for Needy Victims of Genocide and Massacres Committed in Rwanda (FARG) between 1 October 1990 and 31 December 1994. Established in 1998, the fund was created to provide urgent assistance to genocide survivors in four key areas: education; health/rehabilitation; housing; and income generation projects. According to the law, the beneficiaries must meet the definition of 32 Interviews with AVEGA 33 As above. 34 L Magarell. “Reparations in Theory and Practice” ICTJ, Reparative Justice Series. 35 As above. 36 Interviews with representatives of IBUKA, FARG, AVEGA and HAGARUKA “survivor”, which the law defines as: “a person who survived genocide and massacres committed in Rwanda between 1 October 1990 and 31 December 1994 consisting in acts meant to: (i) exterminate persons and destroy their property because of their ethnic origin’; (ii) exterminate persons and destroy their property because of their opinion or of those of close relatives who were against genocide and massacres.” From 1998 to 2008, FARG has reportedly assisted 51 091 children at the secondary level, to pay school fees, and cover associated costs of attendance; and, between 1999-2008, FARG has assisted 3 084 youth with school fees at the university level.37 Indeed, 65% of FARG’s budget is allocated for education grants to help the youth.38 Housing is the other area where FARG is assisting survivors. At the outset, a survey conducted of the needs of survivors reported that 20 000 people had lost their homes during the genocide.39 Between 1999 and 2008, FARG assisted with the construction of 12 596 houses.40 In the area of health, FARG assists persons in need of medical care and has provided such assistance to 271 684 survivors since 1999, while in the area of counselling, the fund (with the assistance of IBUKA) has facilitated assistance to 4 864 beneficiaries.41 In addition, FARG is supporting a programme to provide educators with psycho-social counselling skills so that they can address such issues with schoolchildren.42 Finally, the income generation branch of FARG assists persons with agricultural, commerce, livestock and general income generation projects. Since 1998 to 2008, a total of 9 304 projects were financed by FARG.43 Despite these achievements, the most frequent criticism from victims’ associations and the public is that FARG is still too limited in its capacity to assist all those survivors in need.44 Further, FARG has not been able to repair irreparable harm, such as the loss of life. According to the LDGL representative, a victim must be made to feel comfortable in his/her environment and live in a peaceful society.45 In short, he stated “one’s humanity must be restored”.46 This can be especially difficult given the

37 Interview with representatives of FARG. 38 As above. 39 As above. 40 As above. 41 As above. 42 As above. 43 As above. 44 Interviews with representatives of LDGL and IBUKA 45 Interviews with LDGL 46 As above. characteristics of the genocide, and the particular needs of special categories of victims, especially women and children, which have not been sufficiently addressed by FARG.47

III. Reparations: A tool for unity and reconciliation?

A. A victim’s right to a remedy

The United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of Human Rights Law and Serious Violations of Humanitarian Law set forth the obligations of states to provide an effective remedy, including reparations to victims, which may include: equal and effective access to justice; adequate, effective and prompt reparation for harm suffered; and, access to relevant information concerning violations and reparation mechanisms.48 Forms of reparations may include: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, or any combination of the four.49 In the event that the liable parties are unwilling or unable to meet their obligations, the state should establish national reparation programs and other forms of assistance for victims.50 Government sources confirm that mass atrocities, such as violations committed during the genocide, pose a particular challenge with respect to the feasibility of providing individual reparations for significant numbers of persons. 51 Civil society members confirmed that perpetrators in Rwanda have ‘nothing’ and are just as ‘poor’ as the victims.52 In such cases, collective reparations according to the category of violation or category of victim has been set forth as an adequate approach to repairing the harm of similarly situated victims.53 This is usually achieved through the adoption of national reparation programmes. As such, “a reparation policy must usually include several measures that combine material and symbolic components rather than relying on a single measure.”54

47 As above. 48 UN Basic Principles and Guidelines (n 5 above). 49 As above. 50 See sec IX (16) OF THEICTR Statute (n 28 above). 51 Interviews with the Vice President of the Rwandan Supreme Court and the RwandanNational Commission on Unity and Reconciliation. 52 Interviews with representatives of LDGL 53 Magarell (n 34 above) 5. 54 Magarell (n 34 above) 4. B. Government of Unity and Reconciliation

President Kagame’s government of National Unity and Reconciliation has recognised its duty towards the survivors of the genocide, and as described above, has made notable efforts to grant collective reparations to the survivors through FARG’s project areas. However, survivors maintain that monetary compensation has yet to be issued by the government.55 While monetary compensation alone will not adequately repair the harm caused to survivors, both due to the challenges of placing a price on irreparable harm and the sheer cost implied in repairing the harm to hundreds of thousands of beneficiaries, it is still considered a critical ingredient of reparations for survivors of the genocide.56 Similarly, specialists confirm that ‘a commitment to unity or to welcoming victims who have been excluded from society’s care and protection will not be taken seriously by victims if it is not accompanied by at least some concrete material solutions for harm suffered’.57 For example, while the Chilean Head of State offered an apology for human rights abuses committed during the former Pinochet regime, experts claim that, ‘this apology would have rung hollow if Chile had not also made a commitment to pay a pension to family members of Pinochet’s victims’.58 At present, the Rwandan government is posed with two challenges to granting material compensation for harm caused in the 1994 genocide, one political and the other, a question of feasibility. The political dilemma is perhaps the biggest obstacle in that the government views the granting of individual compensation to survivors as contrary to its policy to promote national unity and reconciliation.

C. Reparations, justice and reconciliation

As stated in the UN Basic Principles, a victim’s right to a remedy includes equal and effective access to justice and adequate, effective and prompt reparations for the harm suffered. As such, the right to reparations and access to justice for gross human rights violations are inextricably linked. While criminal justice may provide a remedy for victims

55 Interviews with representatives of IBUKA and AVEGA. 56 As above. 57 Magarell (n 34 above) 4. 58 As above. in some cases, it is limited in scope and capacity to provide redress to all those who suffered harm. Consequently, when considering what is adequate in repairing harm to victims, it is important to conceive of justice broadly so as to ensure that all those who suffered harm will receive adequate reparations. In this case, it is also important to meet the victims’ need for social justice.59 This need is especially strong in the case of Rwanda, as noted by FARG, which stated that the primary needs of victims were social and economic.60 In this connection, studies reflect and opinions from Rwandan genocide survivors confirm the strong link between ensuring justice and achieving national reconciliation. Genocide survivors have a strong interest in justice and accountability for the abuses they suffered, without which the process towards genuine and lasting reconciliation is compromised.61 This is particularly true for the process of individual reconciliation between victim and perpetrator. To date, survivors of the genocide challenge the government’s intent to promote national reconciliation through Gacaca. Survivors do not view Gacaca as rendering justice in respect to the atrocities committed, given that the process favours a type of amnesty for truth-telling. As such, individual reconciliation is nearly impossible for a majority of the survivors.62 On the above, it is useful to distinguish individual reconciliation between the perpetrator and victim, from social reconciliation which aims to address a traumatised society as a result of widespread and systematic violations.63 Social reconciliation addresses collective harm and seeks to rectify underlying structural issues and power imbalances in order to include those groups which have been historically excluded and the subjects of discrimination.64 While distinct, the two are interrelated. On this point, a member of Rwanda’s civil society stated that one could not really talk about social reconciliation if it is being ignored at the individual level.65 Mamdani believes that degrees of reconciliation are linked to forms of justice and therefore, it is important to “explore ways of linking the two to make reconciliation

59 M Mamdani, ‘When does Reconciliation turn into a Denial of Justice?’, University of Cape town (1998) 16. 60 Interviews with representatives of FARG 61 Interviews with representatives of BUKA 62 As above. 63 Mamdani (n 59 above) 14. 64 Mamdani (n 59 above)16. 65 Interview with representative of LDGL durable.”66 Specifically, he states that “If reconciliation is not to turn into an embrace of injustice, of evil - even if called truth - then the pursuit of social justice needs to be recognised as a political imperative.”67 While Mamdani recognises the challenges presented here, his position is that the challenge of resolving the “tension between managing the reconciliation politically in the short run and making it durable socially in the long run” is necessary for conditions of peace rooted in a society that has achieved lasting reconciliation.68 Finally, it can be concluded that just as individual reparations are intimately linked to justice, and just as justice constitutes an essential ingredient to achieve genuine reconciliation, collective reparations are just as intimately linked with justice, especially social justice, which is the key to achieving social reconciliation at the national level. Given these links, it can be said that the granting of reparations to victims of gross human rights violations is an essential element to achieving lasting individual and social reconciliation in Rwanda.

Conclusion and recommendations

While repairing the harm to the Rwandan people presents numerous challenges for the government, these should not constitute absolute obstacles to providing an effective remedy to victims of gross human rights violations. One important ingredient for granting reparations rests in the political will of the Kagame government. From the above, it is clear that the granting of reparations will foster individual and long-term, social reconciliation, which conforms to government policy. It is equally important when granting reparations however, “to right historical wrongs by providing a measure of justice to previously excluded groups”.69 That is to say, even where the government is providing a remedy to victims, it should also seek to ensure social justice for all, especially the marginalised. As such, the government will need to consider providing compensation to survivors in addition to the measures adopted thus far and in order to make the government measures meaningful to the victims of the genocide.

66 Mamdani (n 59 above)19. 67 As above. 68 As above. 69 As above at 16.