On May 6th 2020 (https://email@example.com_27884/kayibanda-habyarimana-kagame-and-the-weaponization-of-genocide-a370c840131c) Dr David Himbara on his own blog medium.com confirmed unverified hypothesis that “Every post-independence Rwandan dictator weaponized genocide”. “This is an indisputable fact”, he wrote. This post is a reproduction of another he wrote on April 26th 2017 (https://firstname.lastname@example.org_27884/rwanda-will-never-commit-to-the-convention-on-the-prevention-and-punishment-of-the-crime-of-c9cabae0d62c ) at the same blog.
Despite insufficiency of tangible evidence in both articles, you may understand how it is so important to him to find the dictator Paul Kagame and other Republican leaders in the same basket. By my right and duty of a good citizen, I would like to help him by answering the questions on which he based his thoughts.
1. “Why did Kayibanda refuse to adopt the Genocide Convention in his 11-year rule?” Dr David Himbara questioned.
Himbara’s only argument that HE Gregoire Kayibanda would be a genocidaire like Kagame is that he did not sign the Genocide Convention during his 11 years on power. Dr Himbara supports his sole argument with the fact that some other African countries quickly ratified that convention! Assuming that Himbara has no other thought behind, one would like to know why he has never worried nor questioned why no king of Rwanda signed such genocide convention. I think this should be a good way to reason in the best possible way, as from the date when the Genocide Convention was opened for signature on December 09th 1948, both Mutara III Rudahigwa and Kigeli V Ndahindurwa were absolute kings of Rwanda, respectively.
In fact, at that time any Member of the United Nations and any non-member State to which an invitation to sign had been addressed by the General Assembly, had the right to be a party to the Convention and Rwanda was one of them (See Article 11 of the genocide convention). I very much doubt that Himbara jumped this period of time from 1948 to 1962 without knowledge of this fact. He merely wanted to rush on HE Gregoire Kayibanda who is quite innocent in this matter of Rwanda genocides.
To proceed I may remind Himbara that even today in 2020, not in 1962, the Convention on genocide still stands a low rate of acceptance by many countries. For instance, the United States signed on only yesterday, after decades with protracted debates, and I hope they have not weaponized genocide. To be complete, one should list and examine each state which has not yet ratified or acceded to the Genocide Convention in order to let Himbara prove himself wrong and apologize to the public for luck of intellectual honesty.
If to Himbara a non-ratifying state weaponizes genocide, many countries are now concerned, as of in February 2018, at least 45 United Nations Member States had not yet ratified the Genocide Convention. Some of those are: Dominica, Grenada, Guyana, Angola, Botswana Cameroon, Central African Republic, Chad, Congo, Djibouti, Equatorial Guinea, Eritrea, Kenya, Madagascar, Mauritania, Mauritius, Niger, Sao Tome and Principe, Sierra Leone, South Sudan, Swaziland Zambia, Indonesia, Japan, Kiribati, Nauru, Oman, Palau, Qatar, Samoa, Thailand, Timor-Leste, Turkmenistan, Tuvalu and Vanuatu. Etc.
Briefly speaking, signature subject to ratification of multilateral convention is an act of interests towards other countries. Like any other contract, it is negotiated and signed, ratified or accessed considering in first place always the interests of your own nation.
Therefore, HE Gregoire Kayibanda did not refuse to adopt or sign the convention because at the time of its adoption (1948), Rwanda was not ruled by him but by the King Mutara III Rudahigwa. Nor he did not refuse ratification of the convention as it is a process done always by the country not by a president as a person. In this case, Dr Himbara should have asked why His Majesty MUTARA III Rudahigwa did not sign the genocide convention. Following Himbara’s reasoning, King MUTARA “knew that he would sooner or later unleash genocide” (Himbara’s own words on Habyarimana).
Theoretically and practically, a country cannot be bound without its consent, and consequently no convention can be effective on the territory against the will of that country, therefore, no ratification without its agreement thereto. That is why Rwanda was subjected to the “Accession”, the act whereby a state accepts the offer to become a party to a convention or treaty already negotiated and signed by other states. Accordingly, Rwanda accessed to the genocide convention on April 16th 1975.
Thanks to HE Gregoire Kayibanda, Rwanda has become an independent Republic until today. For sure he will remain a father of our nation, because not only he served many from slavery to liberty, from domination to equality but also, he established democracy in our young Republic. And with the wisdom he had, he could not accept such event of genocides on Rwandan soil or elsewhere in pursuit of Tutsi who fled the country.
2. “Why did Habyarimana in his 21-year rule block the jurisdiction of the International Court of Justice (ICJ) to try genocide crimes in Rwanda?” A question raised by Dr David Himbara.
To the first question raised, Dr David Himbara was against HE Gregoire Kayibanda because he did not “adopt” the genocide convention. Now the convention is accessed but he is still accusing HE Juvenal Habyarimana that he did block the ICJ to try genocide crimes because of “a reservation” he made during the time of accession. In both articles since 2017?
Himbara argued that “Habyarimana effectively blocked the International Court of Justice from holding Rwanda accountable for genocide crimes in Rwanda. It is as if Habyarimana knew that he would sooner or later unleash genocide. Habyarimana would not give up his genocide weapon.” And he concludes that the former president Juvenal HABYARIMANA like his predecessor, used the genocide as a weapon. But Himbara fails to explain when, how and where exactly this happened? I wish Himbara himself would have provided more information. But he did not, probably and may be, he will.
The only argument he advances, is constituted on the fact that the president accepted the accession to the Genocide Convention in 1970s, with a reservation. To Himbara, this is a crime! Not an ordinary one, but a genocide. I must say that this is wrong, wicked, and dangerous!
Before I proceed, I may ask Himbara if he knows any act of genocide committed during Habyarimana regime. And why did this wait so long after his assassination (on the 06th April 1994) to be discovered by Himbara? Moreover, why this was not mentioned in the reasons of the RPF’s attack of October 1st, 1990?
It is true that Rwanda’s instrument of accession to the Convention, contains a reservation worded as follows: “The Rwandese Republic does not consider itself as bound by Article IX of the Convention.” However, this reservation cannot block the ICJ to try genocide crimes especially that the court itself is not competent for crimes matters like genocide. (See the ICJ statute, Article 36, pt.2). I will provide more explanation below, by answering your 3rd question.
Yet, someone may wonder what the content of this Article IX of the Genocide Convention is. It reads as follows:
“Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”
Except Himbara, everyone including Paul Kagame who reads this article can easily find out that “this reservation to Article IX is not incompatible with the object and purpose of the convention, inasmuch as the reservation relates not to the substantive obligations of the parties to the Convention but to a procedural provision”.
In addition, many other States maintain similar reservations, and the majority of the 151 States parties to the Convention have raised no objection to that reservation. Just for information, even the USA has ratified the Convention, though after forty years (1988) with significant reservations on the same Article IX. It states that with respect to any disputes involving the United States, such disputes may only be submitted to the International Court of Justice with the specific consent of the United States. (see reservation 782). Following Dr Himbara’s reasoning, the sole purpose for such reservation can be also a genocide plan.
Notwithstanding that the question of reservation to Genocide Convention has been even solved in 1951, Himbara still fails to understand it in 2020. In fact, when Rwanda made its reservation on April 16th, 1975; this confusion of Dr Himbara was already removed 24 years before Rwanda accessed to the convention.
Generally speaking, the Jurisprudence made by the ICJ has already found that reservations are not prohibited under the Genocide Convention. “It is well established that even if a convention contained no article on subject of reservations, it does not mean that these are prohibited”. (See the ICJ Advisory Opinion on Reservations to the Genocide Convention, ICJ, May 28, 1951, P.12, 22 (1951 I.C.J. 15).
David Himbara should know that the reservation made by Rwanda to the Genocide Convention was legal and lawfully accepted, otherwise it would had been disputed among states members. And he should also know that the reservation is raised when the interests of the country is flouted. Therefore, it was in the best interests of Rwanda as a country and its citizens, not Habyarimana as an individual.
3. “Why did Kagame use Habyarimana’s clause to block the International Court of Justice’s jurisdiction to try Rwanda’s genocide crimes in DRC?”- Dr David Himbara asked.
Dear Dr Himbara, first, the ICJ is not competent for criminal matters, much less to try genocide crimes. Only states may be parties in cases before this court because its jurisdiction in all legal disputes is limited to:
a) the interpretation of a treaty;
b) any question of international law;
c) the existence of any fact which, if established, would constitute a breach of an international obligation;
d) the nature or extent of the reparation to be made for the breach of an international obligation.
Therefore, in its application the DRC contended that Rwanda has violated Articles II and III of the Genocide Convention as the “result from acts of armed aggression perpetrated by Rwanda on the territory of the Democratic Republic of the Congo in flagrant breach of its sovereignty and territorial integrity. (See ICJ, DRC v Rwanda, 3 February 2006, No. 126, pt 22)
Nevertheless, I agree with you that Paul Kagame not only planned genocide but also committed it either in Rwanda or in Democratic Republic of the Congo. But he did not block the criminal prosecution just by reservation as you said. Normally, due to the interests of colonial power (via Kagame) all reservation including this one should have been removed according to the Article 15 of the Arusha Protocol as signed on 3 August 1993, later on confirmed through a décret-loi No. 014/01 of 15 February 1995. For sure, one day he will face justice under Rwandans people's court or under the ICC or any other court through universal jurisdiction.
It is a matter of time. In your second article you well mentioned the violation of the Article II of the Convention to define the crime of genocide. Actually, Paul Kagame’s criminal responsibility is based on those acts found in that Article, together with other two important elements:
1) The physical element: the acts he committed as found in Article II.
2) The mental element: His intent to constitute genocide against Rwandans inside, there must be a proven intent on the part of perpetrators to physically destroy a national and ethnical group both Hutu, Twa and Tutsi. This is a special intent, or dolus specialis, that makes the crime of genocide so unique. To know this, the real question is “what is the purpose of the offender?”, not “what is the result?”.
Thus, to constitute “crime of genocide”, it needs to be established that the victims are deliberately targeted not randomly because of their real or perceived membership of the group protected under the Convention. This means that the target of destruction must be the group, as such, or even a part of it, but not its members as individuals. For instance, the target of Hutu by RPA, in Byumba alone should be qualified as genocide, the same the devastation of Kibeho camp, alone constitutes genocide, and also extermination of Hutu Refugees in DRC alone constitutes genocide as well.
With the same idea, why in your first Article in April 2017, do you write as follows: “As we mourn our loved ones who departed from us during the 1994 Rwandan genocide”, but for second time on the May 6th 2020, you change the gear to “the commemoration of the genocide against Tutsi”? Dr Himbara why and what is the difference?
Why did you insist on equating Paul Kagame to Juvenal HABYARIMANA? It is true that Kagame used genocide as a tool to avoid justice but why do you want to convince everyone that Kagame is as bad as Habyarimana. Let me tell you something which I can stand on until I die, Kagame will stay a unique tyrant in the history of Rwanda until the end. No one can be compared to Kagame, he is the worst.
Dear Dr HIMBARA, When I find that you served as the Principal Private Secretary (PPS) to the President Paul Kagame, and that before that you headed the Strategy and Policy Unit (SPU) in the Office of the President, I understand how very difficult it is to oppose a system that you yourself have built.
However, it is a universal principle that “no one may profit by his own wrongdoing”.
Your fellow Rwandan