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Ernest Gakwaya and Emmanuel Nkunduwimye

23.04.2016 ( Last modified: 14.07.2020 )
Trial Watch would like to remind its users that any person charged by national or international authorities is presumed innocent until proven guilty.

Facts

Ernest Gakwaya and Emmanuel Nkunduwimye allegedly participate in the 1994 genocide in Rwanda. The genocide cost about 800,000 lives.

Ernest Gakwaya is accused of committing murders and rapes of Tutsis and moderate Hutus during the genocide. Emmanuel Nkunduwimye allegedly committed murders, attempted murders amd rapes during the same period. They were allegedly members of Interahamwe (pro-Hutu militias, heavily implicated in the 1994 genocide).

Legal Procedure

Ernest Gakwaya and Emmanuel Nkunduwimye were arrested in March 2011 in Brussels. They denied having been members of the Interahamwe militia.

On 9 October 2019, the Brussels Criminal Court decided to sever the cases against Ernest Gakwaya and Emmanuel Nkunduwimye from the case against Fabien Neretse, considering that there was no connection between the oenses. Thus, M. Neretsé was tried in November 2019, whereas the other two accused, Gakwaya and Nkunduwimye, will be tried at a subsequent trial session, scheduled for September 2020.

Context

In 1994, the country was torn apart by a bloody genocide, during which extremist Hutus targeted Tutsis and moderate Hutus. The United Nations Assistance Mission for Rwanda (UNAMIR) was powerless against those committing the genocide, as the peacekeeping troops were largely outnumbered the genocidaires and the international community notoriously failed to respond otherwise at the relevant period.

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR)

In hopes of facilitating the process of national reconciliation and to promote peace in the country, on 8 November 1994 the United Nations Security Council adopted Resolution 955. The Resolution established the ad hoc International Criminal Tribunal for Rwanda (ICTR), located in Arusha, Tanzania.

The Tribunal’s function was to prosecute perpetrators of crimes of genocide, crimes against humanity and war crimes committed between 1 January and 31 December 1994 in the territory of Rwanda, by Rwandan citizens and those committed in neighbouring states. During its existence, 93 persons have been indicted by the ICTR, the Tribunal was officially closed in 2015.

Some proceedings are however still ongoing before the so-called International Residual Mechanism for Criminal Tribunals (or “the Mechanism”). The Mechanism was established by the United Nations Security Council Resolution 1966 (2010) and took over the remaining functions of both the ICTR and the International Criminal Tribunal for the former Yugoslavia (ICTY). The Mechanism has been functioning since 1 July 2012 in parallel with the Tribunals and nowadays as an exclusive institution. It gradually took over the functions of the ICTR and ICTR, including the enforcement of sentences of those convicted and sentenced by the Tribunal, the tracking, arrest and prosecution of fugitives earmarked for trial at the Mechanism, and the protection of witnesses.

THE GACACA COURTS

In 1998, discussions began under the direction of the President of the Republic of Rwanda. Paul Kagame, about the possible use of traditional courts to support the ordinary Rwandan judicial system and the ICTR. A commission was created to study this possibility, and its report provided the basis of the Organic Law of 26 January 2001, which created the Gacaca Courts.

These courts were in charge of trying the low and middle-level perpetrators of the genocide, apart from the “planners” who should have been tried before the national courts. The Gacaca courts were composed of elected popular assemblies, made up of non-professional judges. The composition and functioning of such courts raised several concerns about the respect of fair trial guarantees.

According to Rwandan authorities, during their functioning, the Gacaca courts tried almost two million people. On 18 June 2012 Rwandan President Paul Kagame announced the official end of Gacaca courts’ activity.

 

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