The Rwandan Genocide: 100 Days of Terror
The 1994 Genocide against the Tutsi in Rwanda is widely recognized as one of the worst genocides in modern history, and its impact on Rwanda and the international community is profound. In the Convention on the Prevention and Punishment of the Crime of Genocide of 9/12/1948, genocide is defined as “acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” A genocide, in its extreme destructiveness, is usually the last step of many along a continuum of depredation. Furthermore, it is accompanied by a long-lasting organization by the perpetrators and the passivity of outside bystanders.
The tragedy of the genocide against the Tutsi in Rwanda lies in its preventable nature. The killings targeting the Tutsi minority, perpetrated by the majority Hutu population in Rwanda’s northern and western regions, commenced in 1990. By January 1994, the leader of UNAMIR (United Nations Assistance Mission for Rwanda), General Romeo Dallaire, informed the UN Headquarters that a massive genocide against the Tutsi in Rwanda was in preparation. The UN, USA, and France ignored this intelligence, which resulted in the murder of at least 800,000 Tutsi, the systematic rape of 100,000 to 250,000 women by HIV-infected men, and the brutal slaughter of about 300,000 children to annihilate the Tutsi forever. These atrocities unfolded within a short span of about a hundred days, occurring between April and July 1994.
Court of Appeal of Rwanda’s Legal Ruling on the Case of Leon Mugesera
The Convention on the Prevention and Punishment of the Crime of Genocide of 9/12/1948, article 3 (c) prohibits “direct and public incitement to commit genocide.” Incitement plays a vital role in various stages of genocide, including classification, symbolization, discrimination, and the dehumanization of the victims. In the case of the genocide against the Tutsi in Rwanda, the influential media played a significant role in goading the majority Hutu population to perpetrate violence against the minority Tutsi population.
As a definition for direct and public incitement to commit genocide, the International Criminal Tribunal for Rwanda (ICTR) requires genocidal intent, and it is not necessary that the direct and public incitement to commit genocide contributed to an act of genocide. The ICTR, an international court established to prosecute perpetrators of crimes in Rwanda from 1/1/1994 to 31/12/1994, officially concluded its proceedings and ceased its activities on 31/12/2015.
This definition significantly impacted the case of Leon Mugesera v the Republic of Rwanda. Leon Mugesera delivered a speech on 22/11/1992 in the former Prefecture of Gisenyi, Rwanda, during which he called for violence against the Tutsi population. Subsequently, he left the country within weeks, and during the genocide in 1994, Leon Mugesera was not present in Rwanda. Furthermore, no causal link could be established between his speech and the genocidal acts that occurred in 1994.
In the proceedings of Mugesera V the Republic of Rwanda, the Court of Appeal of the Republic of Rwanda referred to the principles set forth by the ICTR. Consequently, the prosecution was not required to prove whether the incitement directly led to any act of genocide in 1994.
The Legal Issue of Referring to the Jurisdiction of the ICTR
In the case of Mugesera V the Republic of Rwanda, the Court of Appeal of the Republic of Rwanda refers to the decisions of the ICTR in the case Nahimana et al. v Prosecutor. Nahimana, who was responsible for establishing the RTLM (Radio Télévision Libre des Mille Collines), was found to have incited acts of genocide both before and during 1994. The ICTR classified incitement to commit genocide as an inchoate crime, which means that the success of the genocide itself is not a determining factor, and establishing a causal nexus is not necessary.
However, it is important to note that the ICTR’s jurisdiction was limited to addressing acts of genocide and crimes against humanity committed between 1st January 1994 and 31st December 1994, as defined by Article 7 of the ICTR Statute. Consequently, the ICTR did not possess the authority to adjudicate the case of Leon Mugesera if it involved acts of incitement to genocide occurring before 1994 unless a causal nexus to an act of genocide in 1994 could be demonstrated.
In the specific case of Leon Mugesera, the prosecution could not prove the causal nexus between the speech on 22nd November 1992 and acts of genocide in 1994. Hence, the jurisdiction of the ICTR did not extend to encompass the case of Leon Mugesera. Consequently, the definition of incitement to commit genocide as an inchoate crime could not be applied in this context, as it would necessitate the demonstration of a causal connection to an act of genocide in 1994.
Therefore, the Court of Appeal of the Republic of Rwanda’s reliance on the ICTR’s characterization of incitement to commit genocide as an inchoate crime in the case of Leon Mugesera is deemed inequitable, given the absence of a demonstrated causal nexus to the genocide that occurred in 1994.
The “Rechtsfolgenlösung” by the BGH and its Compatibility with the Rwandan Criminal Law
The Court of Appeal of the Republic of Rwanda sentenced Leon Mugesera under the Rwandan penal code for the crimes of public and direct incitement to commit genocide and crime against humanity to lifetime imprisonment. However, due to the prosecution’s inability to establish a causal link between Mugesera’s speech and any act of genocide in 1994, and considering that the speech occurred two years before the genocide, the court could have adopted an alternative legal approach to impose a more lenient sentence.
In this respect, one could refer to a concept in German case law corresponding to this situation by way of legal comparison, which could possibly bring advantages of application in the present situation.
Germany’s highest court of civil and criminal jurisdiction, known as the Bundesgerichtshof (BGH), introduced the “Rechtsfolgenlösung” (legal consequence solution) concept. It allows for mitigating a life sentence when exceptional circumstances significantly diminish the perpetrator’s guilt, analogous to § 49 I Nr. 1 Strafgesetzbuch (The Penal Code of Germany). This solution is derived from the fundamental principles of “ultima ratio,” which asserts that imprisonment is the state’s last resort due to its encroachment on citizens’ freedom, and “nulla poena sine culpa,” which states that punishment may only be imposed when the offender can be personally held accountable for the act committed. Consequently, the severity of the sentence must be proportional to the seriousness of the offense and the degree of the perpetrator’s guilt. While this rule is primarily applied in legislation, it serves as a foundational principle guiding the creation of laws within the German legal system.
It is pertinent to note that during the trial in Rwanda, the court did not consider that Mugesera delivered the inciting speech before the 1994 genocide. Rather, they equated him with someone who continued to incite during 1994 by sentencing him to life imprisonment. In addition, the court did not take into account the potential effects of the speech on the 1994 genocide. In contrast, this was done in the Nahimana case by the ICTR.
Given that the prosecution failed to prove a direct connection between Mugesera’s speech and the 1994 genocide, the actual impact of the speech on the genocide remains unverified. A judge should duly consider these circumstances. Thus, it would be reasonable for the judges in Rwanda to adopt the “Rechtsfolgenlösung” approach proposed by the BGH in their criminal law system. The Rwandan Penal Code provides for the mitigation of lifetime punishment, too. Article 78, 1º of the Rwandan Penal Code stipulates that a life sentence may be replaced by a penalty of no less than ten years imprisonment if mitigating circumstances exist. Mitigating factors are delineated within Article 77 of the Rwandan Penal Code. In the case of Leon Mugesera, none of the listed mitigating circumstances in Article 77 of the Rwandan Penal Code were considered. Notably, Article 77 is titled “some mitigating circumstance,” indicating that the legislature intends not to enumerate such circumstances exhaustively.
While Article 4, paragraph 2 of the Rwandan Penal Code prohibits courts from pronouncing sentences by analogy, even in favor of the perpetrator, it is essential to recognize that Article 77 of the Rwandan Penal Code uses a generalized formulation, suggesting that the legislature does not seek to establish an exhaustive list of mitigating circumstances.
In light of these considerations, it is worth contemplating the application of the “Rechtsfolgenlösung” principle established by the BGH. This principle creates the possibility of reducing the sentences for individuals who were involved in incitement prior to 1994 and for whom no direct connection to the 1994 genocide can be established. This reduction could include a transition from a life sentence to a minimum of ten years imprisonment. This proposed adjustment aligns with the provisions outlined in Article 78, 1º of the Rwandan Penal Code.
In evaluating this proposal, the judges of the Supreme Court of the Republic of Rwanda may find it appropriate to take into account the reduction in the degree of guilt attributed to the perpetrators. This reduction in guilt could be regarded as a mitigating circumstance, as stipulated in Article 77 of the Rwandan Penal Code. Consequently, the utilization of the provisions outlined in Article 78, 1º of the same code appears justified in this context.
Overall, this is a purely dogmatic analysis crafted in conjunction with my internship at the Supreme Court of the Republic of Rwanda: the practical implementation and realisation of such a legal transplant remains open in view of additional moral, geopolitical, and historical considerations.
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 Nahimana et al. v Prosecutor  ICTR-99-52-A, para. 677.
 Nahimana et al. v Prosecutor  ICTR-99-52-A, para. 678.
 Mugesera V the Republic of Rwanda  RP/GEN 00003/2019/CA, Facts.
 Mugesera V the Republic of Rwanda  RP/GEN 00003/2019/CA, para. 210.
 Mugesera V the Republic of Rwanda  RP/GEN 00003/2019/CA, para. 210.
 Mugesera V the Republic of Rwanda  RP/GEN 00003/2019/CA para. 210.
 Kam F. Siu, ‘Is Incitement to Commit Genocide A Continuing Crime Such That Acts Committed Outside The Temporal Jurisdiction Of The ICTR Can Be Considered In Prosecuting An Accused?’, War Crimes Memoranda (2004), p. 35.
 Nahimana et al. v Prosecutor (Case No. ICTR-99-52-A), Judgment, 28 November 2007, para. 678.
 Akhavan P, “The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment” (1996) 90 American Journal of International Law, p.506; Siu, Kam F., “Is Incitement to Commit Genocide A Continuing Crime Such That Acts Committed Outside The Temporal Jurisdiction Of The ICTR Can Be Considered In Prosecuting An Accused?” (2004), War Crimes Memoranda, p. 26.
 Mugesera V the Republic of Rwanda  RP/GEN 00003/2019/CA para. 210.
 Mugesera V the Republic of Rwanda  RP/GEN 00003/2019/CA para. 248.
 Rudolf Rengier, Strafrecht Allgemeiner Teil (13th edn, C.H.Beck 2021) 9; Hilgendorf/ Valerius, Strafrecht Allgemeiner Teil, (2nd edn, C.H.Beck 2015) 8.
 Rudolf Rengier, Strafrecht Allgemeiner Teil (13th edn, C.H.Beck 2021) 237; Hilgendorf/ Valerius, Strafrecht Allgemeiner Teil, (2nd edn, C.H.Beck 2015) 95.
 BGH Judgment on Treacherous Homicide under Extraordinary Circumstances  GSSt 1/81.
 Bundesverfassungsgericht on on the constitutionality of life imprisonment for murder,  1 BvL 14/76; Hilgendorf/ Valerius, Strafrecht Allgemeiner Teil, (2nd edn, C.H.Beck 2015) 8.
 Nahimana et al. v Prosecutor  ICTR-99-52-A, para. 694.