Compared to the ICTR, the Spanish Court is adopting a wider perspective as at least two different ethnic groups (Tutsi and Hutu) had the opportunity to ask for justice, as well as Twa victims, the third ethnic minority, often disregarded. The originality (which distinguishes us also from other countries’ universal jurisdiction processes) stands from the fact that we are bringing under investigation the so-called “victors of the war”. Moreover, we are not only looking at the most easily visioned crimes (the Spanish and Rwandans killed or survived that I am representing), but we are also asking for justice for a type of crime which represents the underwater part of the “iceberg of crimes”.
Jordi Palou-Loverdos is a Catalan lawyer accredited before the International Criminal Court. He is a mediator in conflict resolution at Aequitas, which he founded. As part of its efforts in the African Great Lakes region, he works with Veritas Rwanda Forum, the International Forum for Truth and Justice in Great Lakes Africa. He also has a Facilitator role in the Intra-Rwandan Dialogue for governance reforms in Rwanda and peace consolidation in the Great Lakes region. Since 2001 he has been the defense layer of Catalonian, Spanish, Rwandan and Congolese victims. He is investigating crimes committed in Rwanda and in the Eastern part of the Democratic Republic of the Congo (DRC) from 1990 to 2002. Jordi Palou-Loverdos represents 9 Spanish victims, missionaries and NGO workers, who were killed between 1994 and 2000 because they were witnesses of massacres perpetrated against Rwandans and Congolese. He also represents around 20/30 Hutu, Tutsi and Twa Rwandan victims or survivors of massacres allegedly committed by the Rwandese Patriotic Army (RPA) after July 1994.
Interview by Sara Marelli (2023)
The interview was conducted in the spring of 2023 and has been edited for clarity
Looking at the results achieved by the ICTR (International Criminal Tribunal of Rwanda), how do you judge the work that has been done? Do you identify some impediments?
The work of the ICTR has resulted in only partial investigations and partial judgements. There are two main drawbacks: the jurisdiction covered only the year 1994, and the judgements were only against Hutu perpetrators.
The ICTR was an ad hoc tribunal created by Resolution 955 of November 8, 1994, of the UN Security Council. Looking at its territorial, material, and temporal jurisdiction, it is worth noting that it was charged solely with the prosecution of persons allegedly “responsible for serious violations of international humanitarian law committed on the territory of Rwanda and Rwandan citizens responsible for such violations committed on the territory of neighbouring States, between 1 January 1994 and 31 December 1994” (Article 1, ICTR Statute). The fact that the Tribunal has jurisdiction only over crimes committed in the year 1994 gives a crucial message, that nothing matters as an international crime before 1994 and nothing should matter after 1994. The established temporal jurisdiction of the ICTR does not allow to investigate the massive killings that continued to take place in Rwanda and in the refugee camps in Eastern DRC after the RPA took power. The problem is that the International Criminal Court cannot do so either, since it is only competent to investigate crimes committed after 2002.
There is a debate on how ICTR’s mandate should have been bigger. What do you think about it?
Yes, I agree. Indeed, as recognized in the text of the Arusha Peace agreement of 1993, the war started on the 1st of October 1990. The ICTR should have started the investigation from that day, and it should not have had a mandate of just 1 year, on the model of the ICTY (International Criminal Tribunal for the former Yugoslavia). The ICTY has a temporary jurisdiction set from a predetermined start date, 1991, but its Statute (see Article 1 ICTY Statute) does not establish ex ante an end.
In 1998, the UN Secretary General's Team of Experts also suggested the extension of the material and temporal jurisdiction of the ICTR as one of the possible solutions to investigate and prosecute these international crimes.
From a victims’ perspective, how inclusive has the ICTR been? Have all victims without distinction had the opportunity to feel recognized in the proceedings?
As the common vision considers Tutsi as victims, and Hutu as perpetrators, only one group has been the target of the ICTR Prosecutor’s Office investigations: members politically or militarily associated with the defeated government of the Hutu ethnic group (Rwandan Armed Forces and politicians associated with the regime of the former Rwandan President Juvénal Habyarimana). Some of the presumed innocents, the winning party, could be responsible for the crimes related to the political-military regime that governed Rwanda from July 1994 to the present day.
The same dynamic happened inside Rwanda in the traditional justice system of the Gacaca courts, the system of informal dispute resolution, where no case could be brought against people of the Rwanda Patriotic Army. In addition, this system lacks professionality. The judges of the Gacaca courts were not professional judges, and they were used to look after small disputes. Despite this, they were called to judge over the most technically complex crime in international law: genocide.
Is it because of this situation of impunity that you decided to resort to the principle of universal jurisdiction in Spain? Do you consider that the Spanish Court is more inclusive for victims? And what do you mean with the term “iceberg of crimes” that you cite in some of your articles?
Yes, as several of the victims were out of the scope of the ICTR and ICC, and because the Rwanda or Congolese national courts were not inquiring about them, on the 22nd February 2005 we (the International Forum for Truth and Justice in the African Great Lakes Region) presented a lawsuit in front of the Spanish National Court according to the principle of universal jurisdiction. After years of investigation, we managed to get a judge from the National Court to issue 40 international arrest warrants against persons in government positions in Rwanda, generals, or ambassadors. This set a precedent in international justice as it was the first time that a judge of a national court requested the arrest of members of the active government of another country. We also asked for the President of Rwanda, Paul Kagame, to be put under arrest, but the examining judge declared that the Spanish courts lack the authority to try him as he is immune from prosecution.
Although we managed to bring to justice high-ranking officials, a challenge of our strategy is related to the judiciary of third states: because of political and economic interests, not all countries are willing to extradite the Rwandan under investigation in favour of the Spanish court. Also, we are facing difficulties as the Spanish court is not an international court and has limited resources, but if we manage to have at least 6,7 high-ranking officials before the court, I would be happy.
Compared to the ICTR, the Spanish Court is adopting a wider perspective as at least two different ethnic groups (Tutsi and Hutu) had the opportunity to ask for justice, as well as Twa victims, the third ethnic minority, often disregarded. The originality (which distinguishes us also from other countries’ universal jurisdiction processes) stands from the fact that we are bringing under investigation the so-called “victors of the war”. Moreover, we are not only looking at the most easily visioned crimes (the Spanish and Rwandans killed or survived that I am representing), but we are also asking for justice for a type of crime which represents the underwater part of the “iceberg of crimes”. It is the plunder of national resources, held and organized either by government or by national and multinational companies, which the court of Spain is investigating following reports of the United Nations Panel of Experts in relation to the illegal exploitation of mineral resources in the DRC.
Concerning reparations and conflict resolution, have some victims being repaired so far? and, given your role as a mediator, how do you consider that dialogue facilitation helps the victims?
The Spanish government gave economic reparation of 120 thousand euros to some of the Spanish victims, but Rwandan victims have not been repaired as there still hasn’t been a trial of this lawsuit.
However, economic reparation is not the only one to be considered: truth and justice are a type of reparation, a symbolic and immaterial one. Thanks to the investigation opened by the Spanish National Court, a part of the hidden truth has been rebuilt. However, it is still just a partial success, as after more than 17 years since our lawsuit was presented, we still haven’t had the opportunity to celebrate a trial.
Dialogue is an important part of peaceful resolution as judicial mechanisms must be accompanied by other measures. I worked as a facilitator for the Inter Rwandan Dialogue, a non-governmental initiative of the International Network for Truth and Reconciliation in Central Africa. It is a form of alternative dispute resolution mechanism which asks for structural and cultural transformation of Rwanda and the DRC, through a highly inclusive dialogue where victims from all sides (Hutu, Tutsi, Twa) are able to express their claims, needs and truths.
About the interviewer: Sara Marelli recently graduated from the Master in International Security at Sciences Po Paris, with concentration in human rights and humanitarian actions. These studies were part of a double degree program with Bocconi University of Milan, where she attended a master’s in economics and management of Governments and International Organization. She is now working as an humanitarian operator and she is passionate about displacement studies.