By MARTIN NGOGA

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On April 20, 2020, the United Nations General Assembly adopted resolution 74/273, entitled International Day of Reflection on the 1994 Genocide against the Tutsi in Rwanda.

The explanations of position submitted on the resolution by United States and the United Kingdom may have overshadowed the fact that all 193-member countries, including the US and the UK, adopted that terminology. There is usually no need for further debate on a unanimous decision. However, the focus on the comments gave the impression that the US and the UK had dissented. Far from it. They couldn’t dissent and vote in favour at once.

For much of the early post genocide period, the term “Rwandan genocide” was used to describe the tragedy that befell the country in the 100 days starting on April 7, 1994. Over a million people were killed during that period. Among these were Hutus and Tutsis.

The 1946 Convention says that victims of genocide must be those targeted for elimination “in whole or in part.” Applying this definition, only the Tutsi were targeted for elimination in part or in whole.

The perpetrators of the crime were part of the Habyarimana extremist government. They used the entire state apparatus for this enterprise, and incited ordinary Hutus to kill their neighbours with the expressed intent to eliminate them “in whole”. The intervention of the Rwanda Patriotic Army stopped the genocide, thereby preventing the implementation of that intent in whole, and the Tutsis were eliminated only in part.

Between 1999 and 2003, I observed closely the process that led to the Judicial Notice of 2006. Until 1996, the parties and media could use any terminology before the judge because the facts surrounding the terminology had yet to be established from the judicial perspective.

A rigorous process was still underway to determine the facts that would constitute such terminology. This process culminated in the decision of the Appeals Chamber (the Judicial Notice) that settled any ambiguity regarding what had transpired in Rwanda; it would once and for all place any reservations or “comments” beyond debate, by characterising the facts they had assembled as being “beyond any dispute and do not require proof.”

On June, 16, 2006, the Appeals Chamber of the ICTR in the trial of Prosecutor vs Karemera, Ngirumpatse and Nzirorera (ICTR-98-44-AR73 (C)) affirmed that indeed a genocide against the Tutsi had taken place in Rwanda.

It instructed that “all the current and pending trials before the Trial Chambers of the ICTR” must refer to the following as facts “beyond any dispute and not requiring any proof”: The existence of Twa, Tutsi and Hutu as protected groups falling under the Genocide Convention; The following state of affairs existed in Rwanda between April 6, 1994, to July 17, 1994: there were throughout Rwanda widespread or systematic attacks against a civilian population based on Tutsi ethnic identification. During the attacks, some Rwandan citizens killed or caused serious bodily or mental harm to person(s) perceived to be Tutsi. As a result of the attacks, there were a large number of deaths of persons of Tutsi ethnic identity; Between April 6, 1994, and July 17, 1994, there was genocide in Rwanda against the Tutsi ethnic group. According to the ICTR, the terminology “genocide against the Tutsi” is self-evident since only self-evident truths require no proof. This self-evident situation was, by this decision, put beyond dispute. That the genocide was committed against the Tutsi actually became the only such situation to be confirmed as such, at both political and judicial levels, in a binding and conclusive way.

Even Rwandans who had initially used “Rwandan genocide” have since adopted terminology reflecting the ICTR jurisprudence.

The Trial Chamber as the court of last resort sets the record on debates that have remained inconclusive from the lower chambers; this means that its decision considers all arguments presented in the lower courts which are synthesised into its deliberations and decisions. For this reason, its decisions become law.

In other words, to ignore its conclusions is to take a sharp turn towards lawlessness. Parts of the letters from the UK and US regarding the resolution read: “We disagree with the framing of the genocide purely as ‘the 1994 genocide against the Tutsi’ … we believe that Hutus and others who were killed should also be recognised.” They add that the terminology “genocide against the Tutsi” is “not inclusive” enough to drive reconciliation in Rwanda.

As noted earlier, for genocide to take place, a group must be isolated and targeted for elimination. For this reason, isolation and inclusion are necessarily at odds for purposes of the commission of genocide and, naturally, its commemoration. This principle has been consistently applied when recognising victims of genocides elsewhere.

The commemoration of the Genocide against the Tutsi is the most inclusive in modern history. While the 7th of April is Genocide Commemoration Day in Rwanda, the 13th of April commemorates ‘other groups’ that were victimised during the genocide, particularly those who resisted the genocidal government in one way or another, mostly opposition politicians, the majority of whom are Hutus.

From a strictly legal standpoint, the observation of ‘other groups’ fundamentally deviates from the object and purpose of the convention which defined the crime and created protected groups. Despite this, Rwanda has in her own domestic approach to reconciliation found a way to recognise all victims, without violating the letter of the convention, without legitimising the double genocide conspiracy theorists that were put to rest by ICTR Jurisprudence.

The historical record has been established “beyond any dispute and not requiring any proof”. Attempting to create doubt around the terminology of genocide risks bringing ambiguity to historical facts, and tossing aside jurisprudence of the very institution the United Nations created to establish the truth beyond a reasonable doubt. This kind of ambiguity is dangerous as it feeds an already resurgent denialist movement in the region and internationally.

Historical clarity on the genocide is the surest path to reconciliation. This why all member states should actively support the excellent resolution for which they voted unanimously.

Martin Ngoga is a former Prosecutor General of Rwanda and former Special Representative to International Criminal Tribunal for Rwanda