Advancing International Human Rights Law Responsibilities of Development NGOs: Respecting and Fulfilling the Right to Reparative Justice for Genocide Survivors in Rwanda [1 ed.] 9783030502690, 9783030502706

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Advancing International Human Rights Law Responsibilities of Development NGOs Respecting and Fulfilling the Right to Reparative Justice for Genocide Survivors in Rwanda Noam Schimmel

Advancing International Human Rights Law Responsibilities of Development NGOs

Noam Schimmel

Advancing International Human Rights Law Responsibilities of Development NGOs Respecting and Fulfilling the Right to Reparative Justice for Genocide Survivors in Rwanda

Noam Schimmel International and Area Studies University of California, Berkeley Berkeley, USA

ISBN 978-3-030-50269-0    ISBN 978-3-030-50270-6 (eBook) https://doi.org/10.1007/978-3-030-50270-6 © The Editor(s) (if applicable) and The Author(s) 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration © John Rawsterne/patternhead.com This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

In loving memory of Berthe Kayitesi; survivor of the Rwandan genocide against the Tutsi, human rights advocate, educator and tireless champion of survivor rights and welfare—an inspiration, friend, and extraordinary woman of courage, generosity of spirit and resilience We miss you so very much And in loving memory of Daphrose Mukangarembe, whose resilience as a survivor inspired and inspires so many And in honor of those who risked their lives to rescue Tutsis during the genocide. You are the guardians of Gihanga and of humanity, and to you our thanks is infinite. In memory of the one million individuals who lost their lives in the Rwandan genocide against the Tutsi and the tens of thousands of Hutus murdered for rejecting genocide and defending freedom and equality for their fellow Tutsi citizens Baruhukire mu mahoro n’imigisha And for the Survivors with Love and Deepest Respect Turi Kumwe

To the memory of an extraordinary defender of Tutsis during the genocide against the Tutsi. A leader in Bisesero, Simeon Karamaga was one of the leaders of the local Tutsi community who fought back despite daunting odds against a military and militias equipped with weapons for mass murder and a ferocious zeal to maim, torture, and murder every Tutsi, loot and destroy their property, kill their livestock, and erase the memory of their collective, communal existence and their distinctive culture as cattle-­herders. For more than two months, Simeon fought the genocidal Hutu army, Hutu militias, and Hutu civilian accomplices who massacred over 50,000 Tutsis in that part of Rwanda in the most horrific and brutal ways. Because of Simeon, hundreds of Tutsis in Bisesero survived the genocide. Because of Simeon, despite their staggering losses, Tutsis found strength in their capacity to organize themselves to resist and to strive to protect themselves. Simeon passed away in May of 2020 as this book was going to press. His dignity, courage, and self-determination are a great inspiration to survivors of the genocide against the Tutsi. His defiance of the genocidaires and his defense of the human rights of his people—of their very lives—was and remains a clarion call for justice and freedom and for protecting the innocent from those who prey upon them. Simeon lost his eight children and his wife during the genocide as he fought for the right of Tutsis to be respected as equals in Rwanda. His loss is an enormous one for the survivor community. May his memory and the values he fought for strengthen survivors and contribute to their continued resilience. The justice that Simeon fought for and his quest for freedom are not yet won. Simeon’s spirit is unvanquished.

Acknowledgments

Many individuals in Rwanda and other countries have generously shared with me their life experiences, perspectives, community development efforts, educational programs, and business development projects that empower survivors and enhance their self-reliance and their resilience. I am grateful to all who recognize the unique needs and distinctive vulnerabilities of survivors and who honor their human rights and their dignity. Those individuals and organizations who incorporate them and ensure their full participation and integration in Rwanda on the basis of equity and equality and with the aim of enabling and realizing their right to reparative justice in its many, mutually reinforcing forms are often unsung heroes. Their work is done humbly, quietly, and with minimal resources and financial support. It sustains hopes, rebuilds lives, and enables dreams to become realities. Taylor Krauss has been an extraordinary friend whose love, altruism, and generosity have been felt by me in myriad ways and whose kindness as a friend is protective, gentle, and powerfully present. His depth of care for survivors is exceptional, and he has devoted his life for over 15  years to working in partnership with survivors to enable them to share their testimonies of life before, during, and after the genocide through his organization, Voices of Rwanda. His love for survivors is more than a commitment to justice; it is an act of solidarity, compassion, and continuous presence and accompaniment and profound personal humanism of sincerity and humility. His work is often daunting and difficult. He continues to do it indefatigably with warmth, tenacity, and great courage in the face of the indifference of vii

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so many to the rights and welfare of survivors and resistance to listen to them, learn from them, and respect and fulfill their human rights. Julia Viebach has done ground-breaking work at Oxford University with Rwandan genocide survivors on the ways in which they commemorate family and friends killed in the genocide. She makes her scholarship accessible to the public, and in so doing she amplifies the voices of survivors and increases public knowledge and understanding of their experiences and the history of the genocide and its consequences. Her work is exceptional in its moral integrity and psychological sensitivity and care for survivors. Its insistence on placing survivors at the heart of research, knowledge creation, and dissemination is a model of academic excellence and socially consequential research. I have been very fortunate to learn from her and with her and I am grateful for the ways in which she works so respectfully and in mutuality with survivors and for her warmth, friendship, and the conscience and compassion she shows survivors. Jacqueline Murekatete has worked tirelessly to advance the rights of genocide survivors through her speaking, advocacy, educational engagement at schools and universities, and her Genocide Survivors Foundation. Her work has been critical to increasing understanding of the legacy of the Rwandan genocide against the Tutsi and she embodies the extraordinary resilience of survivors, their desire and capacity for self-reliance and collective self-determination, and their magnanimity and openness of heart and spirit. I am always humbled, inspired, and energized by Jacqueline. She is an ambassador for women survivors with her care, compassion, and grace. I have had the tremendous good fortune of working with and learning from survivors in Rwanda, the United Kingdom, and the United States who inspire me each in their individual ways in how they pursue life with ethical purpose, generosity of spirit, and bravery in the face of catastrophic loss, suffering, and injustice. They are my heroes. I thank all those individuals in Rwanda and in the United States and the United Kingdom—survivors and their friends and advocates—who over the course of many years have opened their hearts and their homes to me with kindness and generosity, sharing their lives, memories, hopes, dreams, hardships, and heartache with graciousness and magnanimity. Your voices and visions, perspectives, and experiences have informed this work. For all who advance the rights and welfare of survivors in Rwanda and in the diaspora, and for all who stand with survivors even and especially when that may be difficult and may put your welfare at risk in speaking up and speaking out for them, thank you for your courage, your solidarity,

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and your insistence that justice, dignity, and repair are irrevocable and essential rights which cannot be compromised, denied, and postponed. No organization has done more—in partnership with genocide survivors—for genocide survivors than SURF, Survivors Fund, and the agencies run by and for survivors which it supports, particularly AVEGA, AERG, and GAERG.1  David Russell and Sam Munderere at SURF and other friends of SURF and all who fund SURF—especially Britain’s Department for International Development—are a model for those who seek to support survivors in dignity, with justice, and in respect for and advancement of their human rights. I have been privileged to support SURF since 2009 and I recommend that readers familiarize themselves with its extraordinary efforts and achievements which merit scaling up to reach all survivors in Rwanda. David and Sam’s contributions over many years to SURF have impacted tens of thousands of survivors in transformative, healing, and empowering ways. I cannot thank them enough for their outstanding leadership, indefatigable courage and tenacity, and their compassion for survivors. They are gentle, soft spoken, and humble advocates who are also incredibly effective and unbowed. They have always been encouraging and supportive and have shown great generosity for which I am most grateful. There are specific places in Rwanda, in addition to people, that have been instrumental in helping me to begin to understand the history of the Rwandan genocide against the Tutsi and its legacy for survivors. Murambi, Bisesero, Nyamata, and Ntarama in the Bugesera, and Nyanza in Kigali left indelible marks upon me. They are sights of memory and resistance to the genocide, and in referring to them I wish to honor the individuals and communities who were murdered there—alongside those of hundreds of thousands of others across Rwanda—and as a reminder that each story of life and death is specific to a particular place and community and that these places reverberate with memory and with the memory of the survivors. This book is written with the hope that all who are in the position to advance the rights and welfare of survivors will finally do so without further denial of the rights of survivors and delay: governments, national aid

1  AVEGA stands for Association des Veuves du Génocide (Association of Widows of the 1994 Rwandan Genocide); AERG stands for Association des Etudiants Et Éleves Rescapés du Génocide (Genocide Survivors Student Association); GAERG stands for Groupe des Anciens Etudiants Rescapés du Génocide (Graduate Student Genocide Survivors Student Association).

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agencies, the United Nations and other multilateral agencies, religious organizations, non-governmental organizations, and individuals. This is your time, this is your test. For each and every survivor knows that it is the greatest honor to learn from you, to listen to you, and to act with you to honor the memory of the individuals, families, and communities you have lost, and to do everything possible to advance your well-being today and to realize your human rights in partnership with you. A portion of the initial research for this book was conducted while I was a fellow and an associate fellow at the McGill Centre for Human Rights and Legal Pluralism. I would like to thank Dr. Nandini Ramanujam for the support provided by the Centre for Human Rights and Legal Pluralism at the McGill Faculty of Law and for her responsiveness, thoughtfulness, and efforts to include me in the life of the Centre and her support of my academic research throughout my time at the Centre and beyond. As an O’Brien Fellow in Residence in the summer and fall of 2014, and as a visiting fellow in the winter and spring of 2015, I was received with generosity and exceptional hospitality by the Centre. I am very grateful to the faculty for the sincerity and warmth of their welcome, for the care and support provided to fellows and their inclusion in the life of the faculty, and for the gracious and collegial atmosphere so conducive to research, writing, and exchange the Centre nurtures and sustains and which makes it an academic community of exceptional quality and integrity of character and purpose. I am thankful to the Centre for enabling me to remain an associate fellow, an affiliation I am honored to hold. Sharon Webb was particularly helpful throughout my time at McGill and exemplifies the self-effacing, kind, and humane spirit which so defined my time in Montreal and in Canada. Colleen Shepard was similarly caring and supportive. I benefited greatly from learning from Professors Payam Akhavan and Frederic Megret, both of the Centre. Professor Akhavan provided me the opportunity to audit his course on International Criminal Law and I was privileged to study with him and learn from his generous willingness to discuss human rights and share his life experiences, practical insights, and reflections on international human rights law. His warmth, openness, humor, and deep personal moral and practical commitment to human rights are a model of moral integrity and clarity of purpose. Fred’s ever down-to-earth friendliness, helpfulness in connecting me to individuals and opportunities, and welcoming spirit made it easy to settle into Montreal and find myself at home in a new city. His intellectual verve, ethical insight and rigor, and his genuine interest in

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my research and efforts to welcome me made my time in Montreal and at McGill a great pleasure. Oxford University’s Masters in International Human Rights Law program inspired much of the research and writing for this book which incorporates my Master’s dissertation. Thank you to its directors, Professors Andrew Shacknove and Nazila Ghanea, for their outstanding and inspiring teaching and leadership of a unique program which I am grateful to have had the opportunity to experience. Their friendship and championing of their students, humility, generosity in service, and sheer warmth, humanity, and sincere care for their students both as students and as people were at the heart of my Oxford experience and make it a great pleasure to return to Oxford again and again. Thanks also to my cohort for their contributions to learning and the sincerity and vigor of their commitment to human rights, accompanied by humility, openness, humor, and inimitable joie de vivre that made learning with them and from them an enormous pleasure and a touchstone in my human rights education. I had the good fortune to be taught by the following faculty members whose classes were central to my human rights education and who model ethical and scholarly integrity, dedication to their students, and passionate commitment to human rights as values, laws, and practice and who each inspired and inspire me: Fareda Banda of the School of Oriental and African Studies and Oxford, Patricia Sellers of the International Criminal Court and Oxford, Pablo De Greiff of New York University and Oxford, Andrew Shacknove of Oxford, and Wade Mansell of the University of Kent and Oxford. Carolyn Patty Blum of the Center for Justice and Accountability provided helpful feedback in the early stages of the drafting of my preliminary research for this book. The Bonavero Institute of Human Rights, Oxford Faculty of Law, where I was a research visitor, and Kellogg College, Oxford, where I was a visiting fellow, provided exceptionally warm, welcoming, and engaging contexts for research on human rights. I am grateful to each of them for meaningful and rewarding opportunities for learning in a collegial, communal environment in a spirit of inclusion and egalitarianism. I am always delighted to return to Kellogg College and the Bonavero Institute and feel fortunate to have them as communities at Oxford that give me an intimate home that allows me to partake in the vitality of the university. Thank you to Taylor and Francis/Routledge for permission to reprint part of an article of mine published in the Journal of Human Rights, (Volume 11, 2012) ‘The Moral Case for Restorative Justice as a Corollary of the Responsibility to Protect: A Rwandan Case Study of the Insufficiency

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of Impact of Retributive Justice on the Rights and Well-Being of Genocide Survivors.’ Thank you also to Elgar publishing for permission to reprint my article in the Cambridge International Law Journal, (Volume 8, 2019) ‘International Human Rights Law Responsibilities of Non-Governmental Organizations: Respecting and Fulfilling the Right to Reparative Justice in Rwanda and Beyond.’ A portion of the proceeds from the sale of this book will be donated to SURF Survivor’s Fund to advance their efforts to secure the rights and welfare of Rwandan genocide survivors and to other grassroots organizations working to advance the rights of Rwandan genocide survivors. Readers are encouraged to visit SURF’s webpage to learn more about ways of contributing to the realization of the rights and welfare of Rwandan genocide survivors: https://survivors-fund.org.uk/ I am solely responsible for the contents of this book. None of the arguments it advances necessarily reflect those of the individuals and organizations I have acknowledged. I take full and exclusive responsibility for the book’s contents. Finally, and as always, this book is dedicated with love and gratitude to the teachers of Newton North High School and the Newton Public Schools who taught me with great conscience, commitment, creativity, and a vision of global civic responsibility that transcends boundaries and borders, real and imagined. When I graduated from Newton North my US History teacher, David Moore, had the prescience to tell me that I would probably spend time in Africa and find myself committed to human rights issues there. Somehow he knew that somewhere in his gut long before I did. What he and my other teachers probably did not fully know is just how profoundly their teaching impacted me. I will never be able to say thank you sufficiently, but that will never stop me from saying thanks. The extraordinary humanism, respect for diversity, freedom, and equality, and passion for social justice and the transformative potential of education of my Newton North and Newton Public Schools teachers is my inspiration and lodestar. It binds my childhood and young adulthood to my present and my future and it grounds me in hope and gratitude.

Contents

1 Introduction  1 2 Defining Reparative Justice and Global Examples of Its Implementation 15 3 Treaty Law for States, Soft Law Addressing Non-State Actors, and the Human Rights Responsibilities of NGOs 37 4 How International Human Rights Law Potentially Applies to Development NGOs in a Post-Mass Atrocity Context Working in Partnership with/as Proxies of States 55 5 Rwanda Case Study 71 6 Conclusion107 Bibliography119 Index137

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CHAPTER 1

Introduction

This book asks what are the potential responsibilities to respect, protect, and fulfill1 international human rights law (IHRL) of a particular class of non-state actors: non-governmental organizations (NGOs).2 The book focuses on those NGOs3 pursuing development in a post-genocide transitional justice context acting simultaneously in partnership with state governments, as proxies and agents for these governments, and providing essential public goods4 and social services as part of their development remit. I define development as a process of expanding realization of social, economic, and cultural rights addressing food security, economic 1  See UN Committee on Social, Economic and Cultural Rights, General Comment 12, 1999, on the respect/protect/fulfill trichotomy. 2  Menno T. Kamminga, “The Evolving Status of NGOs under International Law: A Threat to the Inter-State System?” in Alston, (ed) Non-State Actors and Human Rights (Oxford University Press 2005) 96. 3  This book focuses on development NGOs rather than bilateral and multilateral aid agencies such as USAID, DFID, agencies of the United Nations such as UNDP, UNICEF, and UN Women, and the World Bank. However, despite this focus, the arguments it advances are relevant to these agencies as well, although they may have different legal status as agencies of national governments and of the United Nations, respectively. I focus on NGOs precisely because they are not direct agencies of national governments and thus are traditionally considered to be outside the remit of international human rights law. References to NGOs in this book refer to development NGOs, unless explicitly stated otherwise. 4  Public goods and public services/social services have similar meanings; I use the phrase public goods which includes the provision of social services such as healthcare and education.

© The Author(s) 2020 N. Schimmel, Advancing International Human Rights Law Responsibilities of Development NGOs, https://doi.org/10.1007/978-3-030-50270-6_1

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e­mpowerment/poverty reduction, healthcare, housing, education, and other fundamental human needs while integrating these alongside the expansion of freedoms and protections afforded by civil and political rights. It uses post-genocide Rwanda as a case study to illustrate how respect and fulfillment of the international human rights law pertaining to reparative justice are hindered by failing to hold NGOs responsible for IHRL. Consequently, this results in discrimination against, marginalization, and the disadvantaging of survivors of the Rwandan genocide against the Tutsi and violations of their human rights. This book defines reparative justice in accordance with the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.5 These are centered upon five principles: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. This book defines NGOs in accordance with Menno T. Kamminga’s definition: “NGOs are most easily defined by explaining what they are not.” . private structures not controlled by states 1 2. they do not seek to overthrow governments by force 3. they do not aim to acquire state power, in contrast to political parties 4. they are not for profit 5. they are not disrespectful of law.6 I argue that many development NGOs in Rwanda, by not adequately incorporating reparative justice into their development and transitional justice remit, and not acknowledging and responding to the distinctive rights and vulnerabilities of genocide survivors, are neglecting IHRL on the right to reparative justice. They have the capacity to prioritize reparative justice in their programming and in their negotiations with the Rwandan government of how development aid will be disbursed in Rwanda, who will be its recipients, and the prioritization of those facing disadvantage so as not to further marginalize them.  The UN Basic Principles will be analyzed in Chap. 3. http://www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx All online documents were accessed in the fall of 2019 and winter of 2020. 6  Menno T. Kamminga, ‘The Evolving Status of NGOs Under International Law: A Threat to the Interstate System?’ 5

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I argue, further, that current soft law demands that NGOs should never enter into a contract for provision of development aid with a sovereign that knowingly entails—whether by commission or omission—a violation of international human rights law. This is a significant departure from prevalent NGO policy which entails substantial compromise of human rights law, despite rhetorical claims otherwise in guiding principles of NGO self-accountability. These often collide with the real-world exigencies in which development NGOs must sacrifice some degree of commitment to political and civil rights within IHRL in order to advance social and economic rights within IHRL, which are generally their focus area, particularly for provision of public goods such as education, healthcare, housing, and income generation programs. Such efforts may be done in ways that undermine the civil and political rights of citizens generally and/ or the civil and political rights as well as the social and economic rights of individuals and groups of a particular ethnic, social, geographic, or other background that differentiates them from a favored population group (or several), and discriminates against them. Although civil, political, economic, and social rights are ultimately interconnected and mutually interdependent—and cannot meaningfully be separated both conceptually and practically into a rigid binary—repressive regimes often favor social and economic rights and severely limit political and civil rights. Only a comprehensive soft law framework within the UN system that addresses the issues of NGO IHRL responsibilities as they pertain to the full range of political, civil, economic, and social rights can elucidate the extent of these obligations in a way that can achieve some degree of uniformity, dissemination, normalization, and accountability. Though states are ultimately held legally responsible for the acts of NGOs this should not prejudice NGOs being held socially and morally responsible in some capacity and some degree, simultaneously. Absent such responsibility, this would enable NGO impunity for violations of human rights, whether through acts of commission or omission. As Adam McBeth states, “There is no reason that non-State actors should not have concurrent obligations with states under international law.”7 From the moment that NGOs voluntarily choose to entangle themselves in the delicate and often highly fraught dance of negotiation with states for the freedom to operate and to organize and provide development programming which involves all manner of moral and pragmatic 7

 Adam McBeth, International Actors and Human Rights (Routledge 2010) 244.

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compromises, I argue that IHRL should inform their activities as a matter of social and moral responsibility, similarly to how the Ruggie Principles are expected to inform corporate activities. There is potential for these soft law moral and social standards to become legal obligations, if they eventually achieve widespread status and practice as customary international law. Soft law is not legally binding (unlike treaty law), but creates an aspirational legal framework that can impact policies and behaviors of both state and non-state actors and encourage them to respect, protect, and fulfill human rights law with greater commitment and integrity. Chris Jochnick, of Oxfam America, writes that, “The narrow focus of human rights law on state responsibility is not only out of step with current power relations, but also tends to obscure them.”8 This book builds upon this argument, arguing that NGOs have substantial power and influence that should be wielded with consciousness of and respect for IHRL. The arguments for the human rights responsibilities of NGO non-state actors made in this book differ markedly from the arguments about who is responsible for respecting and fulfilling international human rights law historically, which have overwhelmingly focused on states. In this regard it seeks to innovate and push the boundaries of international human rights law because it believes that the current situation is untenable legally, morally, and practically. Not much more than a decade ago the category of non-state actors remained all but frozen out of the legal picture by international law doctrines and had received only passing recognition even from scholars. While the case-law of the regional human rights systems had begun to address some violations committed by private actors, the resulting jurisprudence was neither systematic nor especially coherent.9

But, as Philip Alston argues, ignoring the human rights responsibilities of non-state actors risks ignoring the realities of the evolving nature of how and who impact human rights. Today, however, at least a subset of non-state actors has suddenly become a force to be reckoned with and one which demands to be factored into the overall equation in a far more explicit and direct way than has been the case 8  Chris Jochnick, ‘Confronting the Impunity of Non-State Actors: New Fields for the Promotion of Human Rights’ (1999) 21 Human Rights Quarterly, 56, 59. 9  Alston, (ed) Non-State Actors and Human Rights (Oxford University Press 2005) 5.

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to date. As a result, the international human rights regime’s aspiration to ensure the accountability of all major actors will be severely compromised in the years ahead if it does not succeed in devising a considerably more effective framework than currently exists in order to take adequate account of the roles played by some non-state actors. In practice, if not in theory, too many of them currently escape the net cast by international human rights norms and institutional arrangements.10

It is precisely this problem of escape from the net of international human rights norms and institutional arrangements that this book seeks to address and for which it proposes a correction. Because, at present, there is little soft law on the IHRL responsibilities of NGOs, NGOs currently enjoy the freedom to operate in a legal vacuum where human rights law is not applied to them and there is no commonly accepted framework for NGO human rights responsibility. Although generally considered to be benign, and perceived as working uniformly to advance human welfare and human rights, the reality is far more complicated and mixed, but IHRL has not caught up with this reality. Human rights failures of NGOs found an extreme and catastrophic expression in Rwanda in 1990–1994 in the years immediately leading up to the Rwandan genocide against the Tutsi. In his book ‘Aiding Violence,’ the development scholar, Peter Uvin, analyzes how a broad cross-section of international NGOs submitted to the Hutu supremacist regime that ruled Rwanda prior to the 1994 genocide.11 Uvin argues that development NGOs operating in Rwanda during that period accepted that in order to gain the assent of the government to undertake development activities they would need to make a Faustian pact: pursue development for the Hutu majority at the expense of the human rights of the Tutsi minority. Uvin illustrates how development NGOs participated in and supported overtly racist plans and social programs which emboldened the regime, enabled its structural domination of the Tutsi minority and policies and practices of discrimination banned in IHRL, and contributed to the policy, political, economic, and social climate that enabled the genocide.12 He states that, “The international foreign policy community, as well as the development aid system, totally neglected the Tutsi question  Ibid., 6   Peter Uvin. Aiding Violence: The Development Enterprise in Rwanda (Kumarian Press 1998). 12  Ibid. 10 11

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and brought no pressure to bear on the government to allow the return of the refugees (Tutsis who had fled massacres between the late 1950s and early 1980s, author’s explanation) or to end discrimination within the country.”13 Thus, to those who might posit that NGOs need less of a legal framework to define the scope of their functioning than corporations, history offers a chastening rebuttal regarding the ease with which the good intentions of NGOs and public professions of commitment to human rights can be easily compromised with devastating results for human rights, human welfare, and human lives. Indeed, August Reinisch notes that the facile assumptions about NGO non-state actors of the past which romanticized them and assumed that they were—by definition—acting in accordance with international human rights law and human rights responsibilities is no longer assumed, and rightly so. Under traditional human rights law, the roles were clearly distributed among the main players. NGOs and international organizations were keeping an eye on the human rights performance of states and increasingly also of TNCs. International organizations and NGOs were the ‘good guys’ and it was their role to advocate and promote human rights, to campaign for human rights observance, and to supervise compliance and find violations. … These roles have been partially reversed today: international organizations are now increasingly questioned about their human rights performance. … NGO accountability is another new topic: their activities are subject to intensified scrutiny, and they are attacked for their lack of democratic structures and transparency. In some instance they are even accused of acting contrary to human rights.14

What is emerging is greater understanding that while states have an enormous impact on human rights respect and fulfillment—and primary responsibility for them—non-state actors also both impact upon human rights in often dramatic ways and need to assume some responsibility for this power and influence over human rights outcomes. Twenty-six years after the conclusion of the Rwandan genocide against the Tutsi the lack of effective and comprehensive reparative justice for  Ibid., 28. Uvin cites here the scholarship of Brusten and Bindariye, 1997.  August Reinisch, “The Changing International Legal Framework for Dealing with NonState Actors” in Alston, (ed) Non-State Actors and Human Rights (Oxford University Press 2005) 62. 13 14

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genocide survivors continues to thwart their human rights, dignity, well-­ being, and possibility for sustained rehabilitation, both as rights-bearing individuals and as a distinctive community. They merit redress for the disadvantages and vulnerabilities that result from their having been targeted in a genocide.15 The families of survivors were destroyed on a large scale leaving survivors with few of the human and material resources that immediate and extended families provide that enhance resilience and individual capacity for rehabilitation. Consequently, many survivors of all ages suffer from poverty, particularly those in which the primary family breadwinner, usually the husband/father, was killed.16 Young adults cannot afford education and vocational training because of their poverty and responsibilities to take care of younger siblings and other survivor orphans.17 Many survivors are bereft of housing and property as a result of wide-scale destruction of property and looting during the genocide and consequently live in unsafe and inadequate shelter.18 Rape and other sexual violence against women, including forced pregnancy, and the deliberate transmission of AIDS were defining elements of the genocide and add enormously to the physical and mental health burden of female genocide survivors.19 All survivors, male and female, face a heavy mental health burden because of the brutal violence they witnessed and experienced during the genocide.20 Despite extensive development aid by a wide range of international NGOs

15  See the annual reports and working papers of the NGO SURF Survivor’s Fund for details of the scale and scope of these injustices which will be discussed in detail in Chap. 6. See also SURF’s Annual Reports 2009–2018: https://survivors-fund.org.uk/about/our-reports/annual-reports/ Eric Stover and Harvey Weinstein, My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity Cambridge University Press (2004). J. Hatzfeld, The Antelope’s Strategy: Living in Rwanda After the Genocide (Farrar, Straus and Giroux 2007). Zachary Kaufman, ‘Lessons from Rwanda: Post Genocide Law and Policy’ Stanford Law and Policy Review (2019). 16  Ibid. 17  Ibid. 18  Ibid. 19  For more on the legacy of sexual violence and its impact on Rwandan genocide survivors and on trauma generally in genocide survivors see Kaitesi, Zraly, Zraly and Nrayizinyoye, Schaal and Elbert, and Schaal and Dusingizemungu, as discussed in Chap. 6. See also Rianne Letschert, Ed. Victimological Approaches to International Crimes: Africa. (Intersentia 2011). 20  Ibid.

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in Rwanda since the end of the genocide, reparative justice has not featured substantially and sufficiently in their work.21 There is a growing literature exploring NGO failures of morality and of practice. This includes critical assessments of well-intentioned development aid projects that fail due to a variety of reasons including corruption, lack of knowledge about and respect for local culture, history, and political and social dynamics, abusive behaviors and relationships between NGOs and their beneficiaries including and in particular sexual abuse of women and children and especially female children, as well as critiques of weak and mismanaged humanitarian aid interventions. These include the NGO response to Haiti’s earthquake of 201122 as well as the humanitarian intervention in Goma, Congo, in the immediate aftermath of the Rwandan genocide against the Tutsi which perpetuated conflict and violence and left the Tutsi minority and moderate Hutus at increased risk of attack from Hutu supremacists and ignored the rights of Rwanda’s remnant surviving Tutsi minority within the country’s borders and which received little NGO support.23 Sixteen years after that moral failure and humanitarian catastrophe in Goma, and the denial of essential support to genocide survivors in Rwanda, genocide survivors in Rwanda still were experiencing discrimination as Tutsis and as survivors from international NGOs. As Mary Kayitesi Blewitt, former director of SURF Survivor’s Fund, said in 2006—with commentary that tragically is as relevant and accurate today as it was then—“Sadly, little or no help is offered by international humanitarian organisations to women survivors, and any such efforts are severely 21   Noam Schimmel, ‘International Human Rights Law responsibilities of NonGovernmental Organizations: Respecting and Fulfilling the Right to Reparative Justice in Rwanda and Beyond’ Cambridge International Law Journal (2019). Noam Schimmel, ‘The Moral Case for Restorative Justice as a Corollary of the Responsibility to Protect: A Rwandan Case Study of the Insufficiency of Impact of Retributive Justice on the Rights and Well-Being of Genocide Survivors’ Journal of Human Rights (2012). Noam Schimmel, ‘Failed Aid: How Development Agencies are Neglecting and Marginalizing Rwandan Genocide Survivors’ Development in Practice (2010). Anne-Marie de Brouwer, ‘Reparations to Victims of Violence: Possibilities at the International Criminal Court and the Trust Fund for Victims and their Families’ Leiden Journal of International Law (2007) 207, 211. SURF Annual Reports (see note 15 in this chapter). 22  Jonathan M. Katz, The Big Truck that Went By: How the World Came to Save Haiti and Left Behind a Disaster, (Palgrave Macmillan 2014). See also Mark Schuller, Killing with Kindness: Haiti, International Aid and NGOs (Rutgers University Press 2012). 23  Linda Polman, The Crisis Caravan (Picador 2011).

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limited.”24 Stephen Hopgood, Michael Barnett, Patrice McMahon, Lisa Smirl, and David Kennedy have written extensively on the human rights failures of NGOs in humanitarian aid contexts.25 These and other examples will be discussed in Chap. 5. Developing IHRL for NGOs would begin to address this legacy of NGO human rights failures. NGOs are increasingly involved in international affairs, particularly in the areas of transitional justice and development aid. Their budgets, programs, and influence have grown in recent decades, and so has their capacity to serve as partners with governments in the fulfillment of human rights, particularly in the areas of social and economic rights through poverty reduction and community development programs, healthcare provision, educational and vocational training, and provision of shelter.26 As Philip Alston states, Civil society organizations today often have multi-million dollar budgets, employ very large staffs, and are engaged in a large number of countries. … Many of them are highly operational and exercise great leverage in communities in which they oversee the expenditure of huge amounts of aid, provide a wide range of basic services, or implement major projects.27  Schimmel, supra note 21 in this chapter.  Lisa Smirl, Spaces of Aid: How Cars, Compounds and Hotels Shape Humanitarianism (Zed Books 2015). Patrice McMahon, The NGO Game: Post-Conflict Peacebuilding in the Balkans and Beyond (Cornell University Press 2017). David Kennedy, The Dark Side of Virtue: Reassessing International Humanitarianism (Princeton University Press 2011). Stephen Hopgood, The Endtimes of Human Rights, (Cornell University Press 2015). Michael Barnett, Empire of Humanity: A History of Humanitarianism (Cornell University Press 2013). See also these older works but still trenchant and relevant critiques of humanitarian aid by Graham Hancock, Lords of Poverty: the Power, Prestige, and Corruption of the International Aid Business (The Atlantic Monthly Press 1989), and Michael Maren, The Road to Hell: The Ravaging Effects of Foreign Aid and International Charity (The Free Press, 1997). 26  See, for example, the annual reports of NGOs such as CARE and Save the Children, for prominent examples. For how NGOs can influence states that violate human rights to improve their human rights respect, protection, and fulfillment see B. Linsanes, H. Sano and H.  Thelle ‘Human Rights in Action: Supporting Human Rights Work in Authoritarian Countries’ in Ethics in Action eds D. Bell and J. Coicaud (Cambridge University Press 2007). http://www.savethechildren.org.uk/resources/online-library/annual-report-2012 http://www.care.org/newsroom/annual-reports 27  Philip Alston, in Philip Alston (ed) Non-State Actors and Human Rights (Oxford University Press 2005) 18. 24 25

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They also participate in advancing civil and political rights (though this is generally a much smaller part of their remit) through workshops and public education campaigns. Although NGOs operate only with the permission of a sovereign government, the power dynamics between NGOs and governments are complex and not unidirectional. A great deal of power resides with NGOs because of their human and financial resources, their ability to impact media coverage of a country’s government and its policies, and their relationships with the governments of the countries in which their headquarters are registered and in which they receive the bulk of their funding. These countries are overwhelmingly, the United States and Canada, member states of the European Union, the United Kingdom, and a handful of other countries such as Australia, the Gulf States, and Japan and Korea28— states with considerable economic and political resources and influence. NGOs, particularly large ones with substantial budgets, have a locus of influence; they can and often do impact state policy.29 David Karp argues that “Corporations can be viewed as having a ‘sphere of influence’ and authority, which is conceptualized in a way that varies according to the political contexts within which corporations operate.”30 So too, development NGOs propose to governments particular development projects, how they will be organized and implemented, and who will be their beneficiaries. Often, international NGOs are intimately linked with the national development policies of governments both in design and implementation, and in the fulfillment of at least some of a state’s social and economic rights obligations to citizens. As such, they are often implementing partners and subcontractors, working closely together with the government as agents of its ministries, rather than independently of it, despite their official status as independent organizations. This book recalls the comment of the International Court of Justice in 1949 indicating the dynamic nature of international law that hinted at the possibility of its evolution to reflect practical needs and changing 28  See, for example, the country donors to Oxfam. Page 43 of its 2014 Annual Report. http://www.oxfamannualreview.org.uk/wp-content/uploads/2014/09/6182_Oxfam_ ARA_web_final.pdf A. Alesina and D. Dollar, ‘Who Gives Foreign Aid to Whom and Why’ (2000) 5 Journal of Economic Growth. 29  David Karp, Responsibility for Human Rights: Transnational Corporations in Imperfect States (Cambridge University Press 2014). 30  Ibid., 133.

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socio-political realities: “subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends on the needs of the community.”31 Furthermore, the book laments the lack a substantive body of soft law and advisory principles to draw upon to inform NGO policies and practice, in contrast to corporations, which have an extensive and growing body of soft law to guide their policy and practice, most notably in the form of the UN Guiding Principles on Business and Human Rights, known more commonly as the Ruggie Principles. The book argues that a similar framework of soft law for development and humanitarian NGOs acting as state proxies is needed and discusses what its components might entail. Such a framework would necessitate intensive cooperation between the United Nations, NGOs, and states contracting NGOs for provision of public goods, and by the individuals and communities most directly involved with/receiving NGO aid and development efforts in a transitional justice context and more broadly. Human rights NGOs such as Amnesty International and Human Rights First also have a critical role to play in ensuring that NGOs working as proxies for national governments delivering social and economic programs and realizing social and economic rights are held to the highest standards of human rights accountability. Each of these parties has a stake and a responsibility in ensuring that the proper human rights law responsibilities of development and humanitarian NGOs are defined and appropriate standards set which should be used to establish a framework for NGO practice. Such a framework would provide a basis to improve the situation in Rwanda for genocide survivors, create public standards and accountability for IHRL, and specifically define reparative justice responsibilities of development and humanitarian international NGOs in Rwanda to Rwandan genocide survivors.

Book Outline Following this introduction, Chap. 2 defines reparative justice in its academic, legal, and policy permutations. It further situates reparative justice in the context of Rwanda’s post-genocide history, with particular  Alston, (see note 27 in this chapter) 19. See Tams and Sloan for more on the evolution of international law and the International Court of Justice. Tams C and Sloan J (eds), The Development of International Law by the International Court of Justice (Oxford University Press 2013). 31

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reference to the role of the United Nations and the UN International Criminal Tribunal for Rwanda regarding reparative justice. It discusses diverse programs of reparative justice undertaken by governments in different parts of the world in response to mass human rights violations. It also examines legally binding international law addressing the reparative justice obligations of states. Chapter 3 overviews the non-binding but guiding soft law that establishes responsibility for NGOs to respect and fulfill IHRL and makes reference to the Ruggie Principles on corporate responsibilities as a potential model for a framework for NGO IHRL accountability. It also examines legally binding international human rights law on reparative justice post-­ mass atrocity directed at states. Chapter 4 examines how IHRL regarding reparative justice may apply to NGO development aid agencies operating in a transitional justice context. It offers arguments for why NGOs working with full knowledge of state international human rights law legal obligations in partnership with states as their agents and proxies in the provision of social and economic rights in the form of public goods have at least some degree of moral and social responsibility for the respect, protection, and fulfillment of international human rights law. It discusses prominent examples of NGO failures to respect and fulfill human rights. Chapter 5 begins with the case study of the current situation of Rwandan genocide survivors. It examines the current efforts of community-­ based advocacy and service provision organizations run by and for genocide survivors in Rwanda to advance reparative justice in accordance with international human rights law.32 It begins with a description of the community-­ based survivor advocacy organizations who have joined together to advance a campaign for reparative justice and discusses the aims of their campaign which initially was welcomed by the Rwandan government but has since been rejected by it. It examines the forms of disadvantage and vulnerability that undermine the rights and welfare of genocide survivors stemming from their historical experiences during the genocide and its aftermath. It then turns to consider social programs that have been successful in responding to survivor needs that can inform 32  I refer to these organizations as NGOs for shorthand. The majority are also community based and grassroots in nature, and in effect are both NGOs and CBOs—community-based organizations. Most survivor centered NGOs in Rwanda that are operated by survivors for survivors to advance reparative justice and the rights and welfare of genocide survivors focus their philosophy, work, and mission in a local, community-based manner. We will discuss them in Chap. 6.

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reparative justice efforts in Rwanda and if scaled up would constitute a significant advance in reparative justice. It explores the history of Rwandan government reparative justice policy since the genocide and that of the United Nations, donor states providing Rwanda with development aid, and international NGOs. It illustrates the lack of adequate concern for and implementation of reparative justice by all respective parties and the often fragmented and haphazard social programs that have reached a mere fraction of survivors in need of them. It concludes by reflecting on where survivors stand in relation to their human right to reparative justice at the current time, and how advancing reparative justice for genocide survivors is not only in the interest of genocide survivors themselves but also of Rwanda as a whole, the Rwandan government, and international NGOs seeking to advance peaceful coexistence, unity, and development in Rwanda. Chapter 6 provides a synthesis of the book and concluding suggestions for future legal and policy development on NGO IHRL accountability broadly, and, specifically in reference to post-genocide Rwanda. It considers new programs initiated in 2019 that advance reparative justice and that serve as models for programs that need to be funded and provided by all relevant actors, including international NGOs, the United Nations and its aid agencies, national aid agencies/donor states, and the Rwandan government in partnership with Rwandan genocide survivors.

CHAPTER 2

Defining Reparative Justice and Global Examples of Its Implementation

Reparative justice has been theorized and defined in various ways. However, as distinct from restorative justice, which often incorporates the perpetrators of crimes in efforts to reconcile with the victims of their crimes, reparative justice in international human rights law focuses on the right to repair and rehabilitation of those whose rights were directly violated, that is the immediate victim/s survivor/survivors of a crime. There are many ways of theorizing restorative justice in the context of international human rights law in response to gross violations of human rights. Rama Mani provides a general but useful definition of what she terms “rectificatory justice,” “rectifying the injustices that are direct consequences of conflict, in terms of abuses committed against civilian non-­ combatants—gross human rights abuses, war crimes, and crimes against humanity.”1 In the literature on transitional justice in post-conflict/post-mass-­ atrocity societies, the overwhelming emphasis is on restorative justice in pursuit of broad social goals, particularly enabling social cohesion and coexistence of diverse social groups and on reconciliation. Wendy Lambourne, for example, states that “restorative justice may be defined as

1   Rama Mani, ‘Rebuilding an Inclusive Political Community After War,’ (2005) Development.

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justice that restores communities or relationships.”2 Typically, these relationships refer to those between victims of criminal acts and perpetrators of those acts and between communities in conflict. The phrase and concept of ‘restorative justice’ originally became prevalent in policy, academic, and community policing and community development programs in North American and European contexts referring primarily to misdemeanors and crimes not entailing significant violence and immense human damage, not in the context of massive, extreme, and systematic human rights violations involving rape, torture, and murder. Restorative justice is rarely applied to the most egregious crimes, which form the bulk of crimes that occur during genocide. I use the term ‘reparative justice’ to deliberately differentiate it from the traditional usage of the phrase and concept ‘restorative justice,’ which should not be conflated with it. Still, as we shall see, in the concern that restorative justice as originally conceived shows for the welfare of victims it does share at least one major area of commonality with my theorization of reparative justice in a post-genocide and post-mass-­ atrocity context. Restorative justice has been criticized for a variety of reasons including that it is not sufficiently victim/survivor centered, it limits access to judicial justice remedies, it lacks moral accountability, lacks deterrent impact, creates a false binary with retributive justice, does not show sufficient sensitivity and responsiveness to the realities and vulnerabilities of women, and that it confuses and conflates community reintegration of criminals with ‘justice,’ and creates unfair burdens on communities that are not always resourced by the state to enable such reintegration successfully and who may not themselves be ready for such reintegration. Many of these criticisms are reasonable and often well-founded, although they do not apply to all cases of restorative justice which need to be assessed in a context-­specific and case by case way. There are many cases of ethically sound, socially responsible, and legally reasonable and respectful successful programs of restorative justice globally. However, in theorizing reparative justice I have been informed by these and other critiques of restorative justice, which I strive to address.3 2  Wendy Lambourne, ‘Transitional justice and peacebuilding after mass violence’ (2009) International Journal of Transitional Justice. 3  Allison Morris, ‘Critiquing the Critics: A Brief Response to Critics of Restorative Justice’ (2002) The British Journal of Criminology. Jamie P.  Beven et  al., ‘Restoration or Renovation? Evaluating Restorative Justice Outcomes’ (2011) Psychiatry, Psychology and Law.

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The phrase ‘restorative justice’ often refers to informal community-­ based responses to crime rather than government-sanctioned legal interventions.4 It is often applied in juvenile justice contexts in response to youth crime. Restorative justice, according to John Braithwaite, “has to be about restoring victims, restoring offenders, and restoring communities as a result of participation of a plurality of stakeholders.”5 Linda Keller states that, “Restorative justice tends to be community-oriented, aimed at restoring society through reconciliation.”6 This emphasis on restoration is in contrast to the traditional emphasis on punishment in the form of retributive justice that dominates justice systems in North America, and in some though not all European countries—where restorative justice features prominently in the sentencing norms and prison programs and management in countries such as the Netherlands and in Scandinavia.7 Repair of relations between victims and offenders is fundamental to theorizations

Paul McCold, ‘Paradigm Muddle: The Threat to Restorative Justice Posed by its Merger with Community Justice’; (2007) Contemporary Justice Review. Gerry Johnstone and Daniel van Ness, editors, Handbook of Restorative Justice (Willan 2013). Lode Walgrave Editor, Restorative Justice and the Law (Routledge 2012). Carrie Menkel-Meadow, ‘Restorative Justice: What is It and Does it Work?’ (2007) Annual Review of Law and Social Science. Elizabeth Elliott and Robert Gordon, Editors, New Directions in Restorative Justice (Routledge 2005). Sarah Curtis-Fawley and Kathleen Daly, ‘Gendered Violence and Restorative Justice: The Views of Victim Advocates’ Violence Against Women (2005). Elmar G.M.  Weitekamp and Hans-Jurgen Kerner, Restorative Justice: Theoretical Foundations (Routledge 2012). 4  Howard Zehr and Harry Mika, ‘Fundamental concepts of restorative justice’ (1998) Contemporary Justice Review. 5  John Braithwaite, ‘Restorative Justice: Assessing Optimistic And Pessimistic Accounts’ (1999) Crime and Justice. 6  Linda Keller. ‘Seeking justice at the International Criminal Court: Victims’ reparations’ (2007) Thomas Jefferson Law Review 190. 7  Senay Boztas, ‘Why Are There So Few Prisoners in the Netherlands?’ The Guardian December 12 2019. https://www.theguardian.com/world/2019/dec/12/why-are-there-so-few-prisonersin-the-netherlands Henrik Pryser Libell and Matthew Haag, ‘New York’s Jails Are Failing. Is the answer 3600 Miles Away?’ The New York Times November 12 2019. https://www.nytimes.com/2019/11/12/nyregion/nyc-rikers-norway.html

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of restorative justice. “Healing relationships, as opposed to balancing hurt with hurt, is one core value of restorative justice.8” Tony Marshall affirms the centrality of victim welfare to restorative justice efforts, explaining that restorative justice seeks “to attend fully to victims’ needs—material, financial, emotional and social.”9 Similarly, Sullivan et  al. state that many theorists of restorative justice “see the aim of the restorative justice process as healing the physical and emotional wounds that harmful behaviour has produced as well as the communal connections that were severed.”10 Sullivan et  al. explain that restorative justice is achieved in large part “through acts of reconciliation,”11 which generally necessitates bringing together victims and offenders. However, in many situations victims may not wish to be so united and should they be pressed to do so under the guise of advancing ‘reconciliation’—as is prevalent in Rwanda today as both government policy and prevalent NGO programming—this can lead to retraumatization and extreme psychic distress. Other definitions of restorative justice are more cautious about this component of restorative justice, citing the need to respect victim preferences in this regard. Zehr and Mika state that, “The needs of victims for information, validation, vindication, restitution, testimony, safety, and support are the starting points of justice”12 and that “victims have the principal role in defining and directing the terms and conditions of exchange.”13 In Rwanda, genocide survivors are still being killed and suffer from significant insecurity, harassment, intimidation, and attacks—particularly when they pursue justice and accountability. This has been ongoing since 1994 and continues to be a problem through 2019 and 2020. In some cases they are murdered for requesting compensation and reparation, in others they are murdered for testifying in court against individuals implicated in the genocide who have until now evaded justice and who  Braithwaite note 5.  Tony Marshall. Restorative Justice: An Overview. A Report by the Home Office Research Development and Statistics Directorate (1999) 6. [Online]. Available: http://library.npia. police.uk/docs/homisc/occ-resjus.pdf 10  Dennis Sullivan, Larry Tifft, and Peter Cordella, The phenomenon of restorative justice: Some introductory remarks. Contemporary Justice Review (1998). 11  Ibid. 12  Howard Zehr and Harry Mika, Fundamental Concepts of Restorative Justice www.cehd. umn.edu/ssw/rjp/resources/rj_dialogue_resources/RJ_Principles/Fundamental_ Concepts_RJZehr_MIKA.pdf 13  Zehr and Mika note 12: 53. 8 9

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intimidate, harass, and kill genocide survivors as a form of silencing the living witnesses to the genocide and to their crimes.14 According to IBUKA, the umbrella organization for all survivor-led organizations providing services to genocide survivors in Rwanda, between 2002 and 2014 168 genocide survivors were killed in an effort to prevent them from testifying in Gacaca community courts.15 Killings of genocide survivors are largely ignored and underreported both in Rwanda and abroad. IBUKA keeps a tally of the number killed every year and SURF Survivor’s Fund has its own corroborating data, but except for periodic news releases by these organizations this information is not made readily public available by the Rwandan government. This is probably because the killings of genocide survivors undermine the image of a reconciled and unified Rwanda at peace, one in which the relationships between victims/survivors and perpetrators have been repaired and restored. International media, equally eager to tout Rwanda’s post-­ genocide transition, overwhelmingly elide this issue because it does not make a dramatic, transformative, happy, and easy marketable story about a nation recovered after genocide. It is a difficult and disturbing truth, but no less honest and real for being difficult and disturbing, nor should it be surprising given the intensity and magnitude of the Rwandan genocide against the Tutsi.

14  ‘17 Genocide Survivors Mysteriously Murdered in Rwanda’. Hirondelle News, https:// www.justiceinfo.net/en/hirondelle-news/20521-en-en-040908-rwandasurvivors-ibuka17-genocide-survivors-mysteriously-murdered-in-rwanda1132811328.html Sarah Womack, ‘Gang Kills Rwandan Genocide Widow’ The Guardian May 15, 2008. https://www.theguardian.com/world/2008/may/15/rwanda Rory Carroll, ‘Genocide Witnesses “Killed to Stop Testimony”’ December 18, 2003. https://www.theguardian.com/world/2003/dec/18/rorycarroll ‘Rwanda: Reports of Ill-Treatment of Members of the Ethnic Tutsi Group, In Particular Genocide Survivors …’, Immigration and Refugee Board of Canada. https://www.refworld.org/docid/54646e554.html?__cf_chl_jschl_tk__=e4de8d2f0c ad412ffbe4360eb81f9db276256c13-1581199252-0-AXRAsnB4wr1fBYeCkK1WJF4ik l d m B t U S T 4 q f 6 Vy 0 4 j P s G 0 x p m 8 Q i 3 L 9 - L S 0 S f O K 1 b O D f E - A y D 6 j v E l 9 0 d 8 0 V T 1 g O C z P u V r z V d 8 O Y x k y y D K 5 D X D s S X _ P _ NFHnTbGV1nWxHhDO0EEoeY8NHae0A5rohh3Ai15mO_cX8xRYs_FuJfdh4W81GS PxptOLk5q04NQNmr4NMSiekBOsao_7tgytDYHR2M3PZMZa7ztqyVgD4_5pE6Za8 fh9qZ8QMPi4gLTGn7ZKJo07uxvns8TIUFoRr8-AZkG1hfVW3S1mJ0m0IQU 15  Daniel Sabiiti, The East African ‘Ibuka Raises Alarm Over Killing of Survivors’ April 18, 2014. https://reliefweb.int/report/rwanda/ibuka-raises-alarm-over-killing-survivors

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These ongoing killings of Tutsis in Rwanda illustrate with urgency and consequence that some of Rwanda’s Tutsi minority that survived the genocide continues to face discrimination and persecution in Rwanda as survivors and as Tutsis 25  years after the genocide. ‘Reconciliation’— though often depicted by the Rwandan government as having been broadly achieved despite significant anti-Tutsi genocidal ideology existing in Rwanda’s population—is both a goal and an ongoing effort, and far from a consolidated one. The lack of it does not merely mean strained social relations between some segments of the Hutu and Tutsi populations (despite their not publicly identifying that way out of respect for Rwandan law which prohibits outward identification as Hutu or Tutsi); it has a fatal impact on many Tutsi genocide survivors. The principles of restorative justice of rehabilitating offenders, of reintegrating them into communities, and of rectifying the harm experienced by victims holistically and, as much as possible, to incorporate them in rebuilding relationships with criminal offenders, have influenced theorizations of restorative justice in international settings, including post-mass atrocity. Jennifer Melvin writes that restorative justice “requires more than just fair trials as it privileges reconciliation and reparation over punishment and retribution.”16 But while reparation must have a central role to play in restorative justice, it would be unethical for reconciliation with egregious human rights violators to be required implicitly or explicitly of survivors of genocide. Moreover, because survivors so often demand punishment for genocide perpetrators, restorative justice need not and should not replace retributive justice, which has an extremely important role to play post-­ mass atrocity and which itself can be restorative to the psychological well-­ being of survivors and society as a whole. This is because it affirms individual moral and legal accountability and legal redress and ensures that the justice system, rather than vigilante justice, can be trusted to affirm justice and due process. That retributive justice is intrinsic to the restoration of survivors is often overlooked in theorizations of restorative justice that pit it in binary opposition to retributive justice, rather than acknowledging that punishment for crimes can contribute to the restoration of victims/survivors. As Brandon Hamber and Richard Wilson note,

16  Jennifer Melvin, ‘Reconstructing Rwanda: Balancing Human Rights and the Promotion of National Reconciliation’ (2010) International Journal of Human Rights 936.

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nation-building discourses on reconciliation often subordinate individual needs, and that truth commissions and individual processes of healing work on different time lines. Calls for reconciliation may demand too much psychologically from survivors and retribution may be just as effective as reconciliation at creating symbolic closure.17

Governments in post-genocide contexts must take particular care and go to great lengths to ascertain from survivors that whatever their national policies are in advancing national reconciliation they do not violate the human rights and welfare of survivors. When survivors express concerns about them governments should modify these policies accordingly to respect the human rights of survivors and their perspectives and experiences. I define the primary concerns of reparative justice post-genocide as being centered upon protecting and realizing the rights and needs of survivors and ensuring their well-being. In some cases, survivors may wish to rebuild relationships with genocide perpetrators, but in many cases they may not.18 My theorization of reparative justice prioritizes their preferences, focuses on their most urgent needs, and allows them to determine the extent and the pace at which they involve themselves in efforts to rebuild relationships beyond their immediate community of fellow survivors—if they so desire at all. This theorization of reparative justice is critically aware of the limitations of traditional forms of restorative justice, which can be harmful to the psychological well-being of genocide survivors. Its foundational ethical principle is that survivors determine the nature, way, and timeline for any such reconciliation—with no implicit or explicit impositions on them from government or other actors such as sectors of society that wield social power, including churches and NGOs. In many historical situations, including after the Holocaust, demands for reconciliation were not made of genocide survivors. Indeed had they been made, it would have been considered appallingly insensitive and morally and psychologically untenable. There was, for example, no call for Jews after the Holocaust to reconcile with Nazis in Germany or with Nazi collaborators in other European countries. While the Rwandan genocide against the Tutsi was different in the intensity with which it was carried out over a relatively small physical area and with a much higher percentage 17  Brandon Hamber and Richard Wilson, ‘Symbolic Closure Through Memory, Reparation, and Revenge in Post-Conflict Societies’ (2002) Journal of Human Rights 35. 18  Jean Hatzfeld, The Antelope’s Strategy, Living in Rwanda After Genocide (Picador 2010) 16.

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of active civilian participation in direct acts of murder than the Holocaust— leaving genocide perpetrators and survivors living in inevitable proximity—no compelling evidence has been provided to substantiate the often made claim that survivors must reconcile with perpetrators to enable coexistence. While Hutus and Tutsis as larger communities understandably need to coexist, this does not imply, however, that genocide perpetrators and genocide survivors (subsets of these two communities) need to engage one another in order to enable such coexistence. The following opinion offered by one genocide survivor is not an isolated one; indeed, it is prevalent among survivors who generally prioritize both retributive and reparative justice before reconciliation. “You cannot have reconciliation. You reconcile two people if it is just a problem but not when it involves death— it is not appropriate. In effect you are telling victims to shut up.”19 However commendable goals of reconciliation between survivors of genocide and perpetrators may appear to some to be, they may inadvertently lead to the marginalization of the needs of victims and place unfair and psychologically damaging and traumatizing burdens on survivors.20 This is particularly the case if survivors of genocide are urged by the state through various forms of implicit and explicit pressure and incentives to forgive genocide perpetrators—a fundamental component of current Rwandan government policy and the recently completed gacaca community-­based trial system. Most theorizations of reconciliation and their practice entail providing human rights violators with the opportunity to ask forgiveness from their surviving victims. However, they may and often do lack genuine remorse. Nor does remorse obviate the gravity and consequences of their crimes. Such requests for forgiveness and the pressure to grant it can be deeply socially and politically coercive of genocide survivors and damaging to their mental health and well-being. Even for those perpetrators who have remorse, victims may still find themselves unwilling and unable to forgive and may be affronted by the very notion that such gross human rights violations can be forgiven in a formal, government-sanctioned way with the coercive powers of the state implicitly and often explicitly demanding

19  Bruce Baker, ‘He Must Buy What He Stole And Then We Forgive: Restorative Justice in Rwanda and Sierra Leone’ (2007) Acta Juridica. 20  Noam Schimmel, ‘A Safe Place to Call Home: Securing The Right of Rwandan Genocide Survivors to Resettlement Outside Rwanda’ (2010) The Journal of Humanitarian Assistance.

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that they forgive. The very request for forgiveness on the part of a perpetrator may be interpreted by a survivor as deeply selfish and insensitive. If a perpetrator recognized the destructive consequences of his acts while he certainly might wish to apologize and express contrition, to ask for forgiveness and the absolution it can imply reflects greater concern with the perpetrator’s need for the psychological satisfaction that results from forgiveness, than from the welfare of the genocide survivor, calling into question the ethics of the perpetrator’s request. Requesting forgiveness is, in short, in many cases a narcissistic desire to find absolution and psychic peace for an act of extreme evil and destructiveness which cannot be undone. It is also often incentivized by governments in ways that undermine the possibility of it being genuine and rather than primarily a product of self-­ interest. It’s not difficult or demanding morally and psychologically for a perpetrator of human rights violations—whether in post-apartheid South Africa in the context of South Africa’s Truth and Reconciliation Commission and South African laws that favored impunity rather than justice and accountability for victims of apartheid—or post-genocide Rwandan Gacaca Community Courts, to share the truth of his crimes. Simply stating the crimes enables the perpetrator in such contexts to benefit from minimal punishment or a radically reduced sentence that is incommensurable with the gravity of the crime and its consequence, as was the case in both South Africa and Rwanda but in a far more pronounced way and with virtually total impunity in South Africa. Such apologies are often perceived—entirely logically and understandably by survivors of extreme human rights violations—more as a product of government organized and sanctioned political and quasi legal theater, and not of introspective, sincere, individual human remorse, repentance, repair, and personal transformation of values and commitments. The ease with which forgiveness is provided can also severely undermine deterrence of future crimes. In Rwanda, where anti-Tutsi prejudice has been endemic since 1959 and mass killings of Tutsis have happened at frequent intervals between 1959 and 1994  in large-scale massacres and expulsions, it was the Hutu supremacist’s government’s decision not to prosecute and punish the destruction and theft of Tutsi property and the killing of Tutsis that sent a clear message of impunity for the first 35 years of Rwanda’s history as an independent state. When Bertrand Russell protested massacres of Tutsis as Rwanda won its independence from Belgium in 1961 and Belgium colluded with Hutu

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supremacists between 1959 and 1961 as they sought to create a racist Hutu supremacist dictatorial state, Russell tried to rouse the dormant conscience of the world and its indifference to the fate of the Tutsis. He stated that Rwanda had experienced, “the most horrible and systematic massacre we have had the occasion to witness since the extermination of the Jews by the Nazis.”21 State sanctioned forgiveness in such a historical context serves as a potentially dangerous continuity with colonization and with the colonizers, maintains the pattern of impunity of both the colonizers and of the Hutu supremacist state that practiced the crime against humanity of extermination as a matter of state policy, and incentivizes those who would harm Tutsis to do so. After all, if the punishments are minimal and easily subverted with a mere acknowledgment of crime and an apology, what is to stop those individuals still sympathetic to a Hutu supremacist ideology from killing Tutsis again and from envisioning further massacres and even genocide against the Tutsi? Survivors often express a desire for real expression of remorse and tangible efforts to repair whatever can be repaired which generally relates to rebuilding physical things that were destroyed during the genocide such as homes. But real remorse is exceedingly rare. If survivors forgive perpetrators it is often because they find forgiveness healing for themselves or because of a radical generosity and magnanimity—and not because they feel that perpetrators have some kind of intrinsic ‘right’ to forgiveness. Some survivors also note the limitations of survivors’ powers to forgive in that in cases of murder, the individual who could have conceivably forgiven because the crime was directed against that specific individual—no longer can, because they have been killed. Survivors are more than members of the persecuted groups; they are individual human beings and they are not an undifferentiated mass in which survivors can somehow serve as representatives and replacements of the dead. Such a notion dehumanizes and devalues the dead and desecrates their memory as individuals.22 The former Chief Rabbi of Israel, Rabbi Yisrael Meir Lau, a survivor of the Holocaust, recently said something similar at the 75th anniversary commemoration events of the liberation of the Auschwitz death camp held at Yad Vashem in Israel in January of 2020, “I came especially to tell  John Carlin, ‘New Dawn in Rwanda As Nation Forgives’ The Guardian (2003). https://www.theguardian.com/world/2003/aug/24/theobserver1 22  For additional commentary addressing these arguments see the essay by Rebecca Goldstein and other Jewish contributors to Simon Wiesenthal’s The Sunflower: On the Possibilities and Limits of Forgiveness (Schocken 1998). 21

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you I cannot forgive because I am not authorized. My parents … did not ask me to forgive. They asked me to continue the chain, so that the Jewish chain will be unbroken, unbroken forever.”23 Many Rwandan genocide survivors share the same convictions and sentiments. The conceptualization of reparative justice that I provide returns the victim of human rights abuses to the center. It makes addressing his and her needs a paramount priority legally, morally, psychologically, and socially. While it acknowledges that such efforts will likely increase social cohesion, general welfare, the possibility of reconciliation, and a sustainable basis for peace through greater equity and human freedom, it does not instrumentalize itself for the sake of the achievement of these important goals and rejects any theoretical conceptualizations and practical applications of restorative justice that do so. As Mary Kayitesi Blewitt explains in a lecture entitled ‘Is Violence Ever Justified’ commenting on forgiveness and reconciliation: Forgiveness without justice is a betrayal of my family. Forgiveness is between me and my God. It is not a matter of national policy. Individuals who have to deal with the aftermath of horrendous atrocities should not also be robbed of their independence to decide when to forgive or not. Forced forgiveness is insensitive, intrusive and morally isolating. Those who choose not to subscribe to society’s pressure to comply and be seen to forgive should be given that right to do so.24

Blewitt emphasizes that the failure to provide survivor-centered reparative justice first and foremost harms survivors, but it also harms the welfare of the next generation. Such an inheritance precludes the possibility of healing and rehabilitation, entrapping survivors, their children, and Rwandan society as a whole in a legacy of violence and trauma that remains unsatisfactorily addressed. It makes coexistence and social stability increasingly

23  David M.  Halbfinger, Isabel Kershner and Katie Rogers, ‘At Holocaust Memorial, A Survivor and Towering Moral Voice Says He Cannot Forgive’ The New York Times (2020). https://www.nytimes.com/2020/01/23/world/middleeast/auschwitz-liberation-anniversary.html 24  Mary Kayitesi Blewitt Restorative justice: Healing wounds and repairing lives exhibit. In Lecture on Forgiveness. [Online]. Extract available: http://survivors-fund.org.uk/blog/ restorative-justice/

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difficult and unsustainable when grievances, suffering, and injustice are ignored rather than acknowledged and addressed.25 Victim-centered reparative justice as I theorize it aims chiefly to rehabilitate and empower victims of human rights violations to enable them to recover the maximal individual psychological, social, and material well-­ being they had prior to the experience of the human rights violations. 25  For data and commentaries on trauma and resilience in Rwandan genocide survivors see the following studies and note that this is not exhaustive: H Rieder H. & T Elbert, ‘Rwanda—lasting imprints of genocide: trauma, mental health and psychosocial conditions in survivors, former prisoners and their children’ (2013) Conflict and Health 7(1), 1–13. AERG (Association des Etudiants et Eleves Rescapes du Genocide). (2012). The impact of legal and homeless problems on trauma: A case study of youth survivors of Genocide committed against Tutsi, member of AERG. Retrieved from http://www.aerg.org.rw/wpcontent/uploads/2013/10/AERG-Research-Report-final1.pdf M.  Amir, M., & R.  Lev-Wiesel, R.  Time does not heal all wounds: Quality of life and psychological distress of people who survived the Holocaust as children 55 years later (2003) Journal of Traumatic Stress, 16, 295–229. Life after death: Rebuilding genocide survivors’ lives: Challenges and opportunities. Proceedings of the Kigali Conference, 25–30 November 2001. Lindsey. Hilsum, L. (2014). Rwanda 20 years on: the tragic testimony of the children of rape. Observer, 7/8. Retrieved from https://www.theguardian.com/world/2014/ jun/08/rwanda-20-years-genocide-rape-children. Human Rights Watch (1996). Shattered lives—Sexual violence during the Rwandan genocide. Retrieved from https://www.hrw.org/report/1996/09/24/shattered-lives/sexualviolence-during-rwandan-genocide-and-its-aftermath Human Rights Watch (2004). Human Rights Watch (2004) Struggling to survive: Barriers to Justice for rape victims in Rwanda. Retrieved from http://www.hrw.org/reports/2004/rwanda0904/rwanda0904.pdf National Institute of Statistics of Rwanda. (2008). Genocide survivors census report—2007. Retrieved from http://statistics.gov.rw/publication/genocide-survivors-census-report2007 Nadja Jacob, Consequences of Traumatic Stress in Rwandan Genocide Survivors: Epidemiology, Psychotherapy, and Dissemination. January 2010. S.  Schall and T.  Elbert; Ten Years After the Genocide: Trauma Confrontation and Posttraumatic Stress in Rwandan Adolescents. Available at: https://kops.uni-konstanz.de/bitstream/handle/123456789/10432/Ten_years_after_ the_genocide.pdf?sequence=1 Denise H Sandole and Carl Auerbach, ‘Dissociation and identity transformation in female survivors of the genocide against the Tutsi in Rwanda: a qualitative research study’ Journal of Trauma and Dissociation (2013). Philomene Uwamaliya and Grahame Smith, ‘Rehabilitation for Survivors of the 1994 Genocide in Rwanda: What Are the Lessons Learned?’ Issues in Mental Health Nursing (2017).

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Recognizing that certain violations can never be redressed, such as the killing of relatives, it seeks to provide a range of services that enable and sustain coping, resilience, and personal development in the face of the traumas, pain, and losses caused by the violations, and to ensure that survivors are able to enjoy the realization of maximal freedoms and capability to pursue their interests and life goals. Reparative justice functions on a continuum, containing a range of dimensions that when applied holistically can most fully enable the realization of the rights of victims of extreme human rights violations and contribute to their welfare, individually and collectively. The literature on reparations provides some useful guidelines for how reparative justice can best be pursued with the aims of addressing theft of material goods such as housing, land, and personal belongings as well as the creation of programs that contribute to the repair, psychological and social, of victims.26 However, until recently with the establishment of the International Criminal Court, reparations theory has largely focused on engendering repair for crimes that took place at great temporal distance—100 or 150 years ago, for example. As such, much of the literature on reparations concerns itself with legal and theoretical questions related to moral responsibility and accountability in a historical context in which immediate victims and perpetrators have long since died. These often theoretical accounts have little bearing on relatively recent crimes of genocide in Rwanda, in which the overwhelming majority of perpetrators and survivors are still alive. Many perpetrators have the economic resources to contribute directly to the reparation of the individuals their actions violated who continue to suffer their consequences, although there are practical hurdles to accessing these funds. However, due to the scale and intensity of the Rwandan genocide against the Tutsi, even if the resources of all perpetrators were applied to reparative justice efforts by court order, there would still be a need for large-scale additional funding for the implementation of satisfactory reparative justice. Many perpetrators have also moved funds into foreign bank accounts and it is extremely difficult to seize these funds for distribution to genocide survivors in compensation and reparation. Various governments have embarked on their own reparative justice programs, largely in response to the demands of domestic constituencies and not necessarily to the demands of international law and international  Pablo De Grieff, Editor, Handbook of Reparations (Oxford: 2006).

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courts, though sometimes influenced by them. In Peru, government funding for collective reparations to partially address the social, economic, and institutional harm suffered by marginalized communities during civil war and attacks of the guerilla Shining Path movement includes grants for education, healthcare programs, cash grants, and government apology for human rights violations.27 Morocco has undertaken an extensive program of reparation—disbursing 85 million dollars in funds for reparative justice addressing human rights violations that took place in Morocco between 1981 and 1991.28 Programs of reparative justice in Morocco include health care provisions, education and skills training, memorial site construction, and employment-­ creation programs. They are targeted to reach communities where repression, torture, and denial of public services were especially grave and most damaging. In addition to these collective reparations, the Moroccan government provided reparations to 9779 victims and/or family members of victims of enforced disappearance, arbitrary detention, political killings, and injuries during urban riots, forced exile, or sexual violence. The Moroccan Independent Arbitration Panel which has developed many of these programs also recommended the government provide services including medical and psychological rehabilitation and the restitution of confiscated personal property.29 Reparations provided by the Chilean government for human rights violations under the Pinochet dictatorship include monthly pensions, fixed-­ sum payments, health benefits, and educational benefits. The law enacting reparations also confers the right to free health care services in the national health care system to victims’ relatives whose income is below the poverty line. In addition, the Ministry of Health established a ‘Programme of Reparation and Integral Health Care’ to cover the individuals affected by human rights violations. The program includes general medical care, social services, psychological counseling, and other services free of charge. The

27  Ibid. and Ruth Rubio-Marin, The Gender of Reparations: Unsettling Sexual Hierarchies while Redressing Human Rights Violations, (Cambridge University Press 2011). 28  Julie Guillerot and Ruben Carranza (2009) Rabat Report: The Concept and Challenges of Collective Reparations (New York: International Center for Transitional Justice).[Online]. Available: http://ictj.org/sites/default/files/ICTJ-Morocco-Reparations-Report-2009English.pdf 29  Ibid.

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victims’ parents, children, or siblings are eligible to receive this assistance.30 Argentina, in response to its own history of human rights violations during the dictatorship that ruled the country from 1976 to 1983, established pensions for relatives of individuals murdered during the dictatorship31 and provided various other social services addressing the losses and suffering they incurred as a result of the killings of their family members. These include support to address poverty and income security, educational programming, and health services to promote mental health and address lasting trauma resulting from government crimes during the Argentine military dictatorship. The largest reparative justice program in terms of total funds released and the number of people receiving support is that by the government of Germany negotiated with Israel and with Jewish organizations. It provides for compensation for material losses suffered by Holocaust survivors and by victims murdered in the Holocaust. It also funds supplementary pension support and social services such as healthcare, food provision support, and psychological and social work services for Holocaust survivors and general support to the Israeli government to promote the well-being of the Israeli society that took in over 500,000 Holocaust survivors as refugees in the years immediately following the founding of the state in 1948.32 The United States has also advanced reparative justice. Its 1988 Civil Rights Act33 provided approximately 60,000 surviving Japanese Americans who had been immorally and illegally arrested and detained in internment camps  during World War 2  with  payment of $20,000  in compensation. They also received a formal US government apology for the internment.34

30  Edelstein, Jayni. (1994) Rights, Reparations, and Reconciliation: Some Comparative Notes. Seminar Number 6. [Online]. Available: http://www.csvr.org.za/wits/papers/ papedel.htm 31  Ibid. 32  Melissa Eddy, ‘For 60th Year Germany Honors Duty to Pay Holocaust Victims’ The New York Times November 17, 2012. https://www.nytimes.com/2012/11/18/world/europe/for-60th-year-germany-honors-duty-to-pay-holocaust-victims.html 33  Edelstein, Jayni. (1994) Rights, Reparations, and Reconciliation: Some Comparative Notes. Seminar Number 6. [Online]. Available: http://www.csvr.org.za/wits/papers/ papedel.htm 34  Irwin Molotsky. (1988, April 21) Senate votes to compensate Japanese-American internees. New York Times. [Online]. Available: http://www.nytimes.com/1988/04/21/us/ senate-votes-tocompensate-japanese-american-internees.htm

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The absence of reparative justice inevitably leads to human rights violations that further victimize victims of the genocide. Genocide happens within a social, cultural, historical, and political context.35 Even when it ends, the prejudices, drives for power and structures of power, networks of relationships, psycho-cultural beliefs, and discriminatory and persecuting practices take years and often many decades to change, and often prejudices remain socially prevalent. Racism is terribly tenacious, and the end of genocide rarely signifies the end of the hatreds, processes of dehumanization, and delegitimization of the rights and dignity of persecuted individuals and groups. On more than eight separate occasions the UN General Assembly has passed resolutions with the near unanimous support of member states calling for UN agencies such as UNICEF and UNDP to actively reach out to genocide survivors living in poverty and suffering from violations of human rights in Rwanda. But these resolutions have never been transformed from rhetoric to reality. Not only have UN agencies overwhelmingly failed to implement them by prioritizing genocide survivors in their currently operating programs, but the United Nations failed to release funds to enable these resolutions to be implemented. The United Nations General Assembly adopted resolution 59/137 on December 4, 2004, that requests the Secretary-General to encourage the relevant agencies, funds, and programs of the United Nations system to continue to work with the Government of Rwanda in developing and implementing programs aimed at supporting vulnerable groups that continue to suffer from the effects of the 1994 genocide, in alleviating poverty, disease, and suffering and in promoting development in Rwanda.36 The 64th General Assembly readopted a resolution calling for assistance for genocide survivors: “requesting the Secretary-General to encourage relevant UN agencies, funds and programmes to provide assistance in the

35  The content of portions of this chapter is drawn from an earlier publication of mine in the Journal of Human Rights, as noted in the acknowledgments. However, it has been edited, revised, and rewritten here, and is distinctive from the article from which it draws much of its substantive information and commentary. Noam Schimmel. (2012) The Moral Case for Restorative Justice as the Corollary of the Responsibility to Protect: A Rwandan Case Study of the Insufficiency of Impact of Retributive Justice on the Rights and Well Being of Genocide Survivors. Journal of Human Rights 11, 161–188. 36  UN Resolution 59/137, https://undocs.org/en/A/RES/59/137

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areas of education, medical care, skills training and microcredit programmes aimed at promoting self-sufficiency.”37 Once again it adopted a similar proposal at the 69th plenary meeting on December 23, 2005; resolution 60/225, entitled, ‘Assistance to Survivors of the 1994 Genocide in Rwanda, Particularly Orphans, Widows, and Victims of Sexual Violence’ stated that it recognized the numerous difficulties faced by survivors of the 1994 genocide in Rwanda, particularly the orphans, widows, and victims of sexual violence, who are poorer and more vulnerable as a result of the genocide, especially the many victims of sexual violence who have contracted HIV and have since either died or become seriously ill with AIDS.38 Resolution 62/96 once again affirmed the commitment to provide for the welfare of genocide survivors and was passed on December 17, 2007. On December 22, 2009, the General Assembly issued a third call to support Rwandan genocide survivors “to encourage relevant United Nations agencies, funds and programmes to provide assistance in the areas of education, medical care, skills training and microcredit programmes aimed at promoting self-­ sufficiency.”39 Like the previous resolutions, it remains unfunded and unheeded. More recent calls have been made in the past decade, with a similar pattern of rhetorical action with no accompanying practical impact and direction of resources for implementation. There are a range of General Assembly resolutions similarly addressing transitional justice post-­ mass atrocity in countries such as the nations of the former Yugoslavia and Sierra Leone,40 among others.41 To its credit and in contrast to the current situation at the International Criminal Tribunal for Rwanda  ICTR’s Residual Mechanism, the ICTR tried, in its first years of functioning, to promote reparative justice by creating a trust fund to provide funding for projects in Rwanda aimed at  Fund for Survivors. http://survivors-fund.org.uk/news/survivors-rights/fund-for-survivors 38  UN Resolution 60/225, ‘Assistance to Survivors of the 1994 Genocide in Rwanda, particularly the orphans, widows and victims of sexual violence’. https://undocs.org/A/RES/60/225 39  (SURF 2011: para. 10). 40  See, for example, the following Security Council report and General Assembly resolution, http://www.securitycouncilreport.org/un-documents/sierra-leone/ and http:// www.un.org/documents/ga/res/48/a48r143.htm on the former Yugoslavia 41  UN General Assembly, 68th Session, Agenda Item 71. http://www.un.org/ga/search/ view_doc.asp?symbol=A/68/497 37

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rehabilitating genocide survivor witnesses and supporting housing and outreach services for them in recognition of their vulnerabilities and needs. Its first Chief Prosecutor, Carla del Ponte, tried to amend the statute that prohibits the ICTR from ordering compensation and reparative justice for victims, but she was unable to do so42 and met great resistance within the UN for such an advancement in reparative justice for genocide survivors. As De Brouwer explains: Thus where compensation and restitution could have provided a means to achieve restorative justice for victims of sexual violence, the tribunals [ICTY and ICTR] have not addressed victims’ needs for compensation or restitution at all. Survivors of sexual violence could have used compensation awards for such purposes as hospitalization, medication including ARV drugs, and counselling, but also, for instance, for food, education, and rent. Restitution of property might have been helpful for those victims of sexual violence who faced constraints in regaining access to their homes, land, or other property taken during conflict.43

But the leadership of the UN took a strictly narrow, legalistic, and retributive vision of justice to define the juridical aims and scope of action of these international criminal tribunals, much to the deprivation of the rights of genocide survivors and survivors of crimes against humanity in both countries. The ICTR also initially aimed to provide psychological, medical, and legal assistance to genocide survivors generally.44 Hassan Jubacar Jallow, the Tribunal’s former Chief Prosecutor, states in the name of the ICTR that “The ICTR acknowledges that retributive justice of itself is insufficient for justice and that it only complements further measures aimed at securing restorative or socio-economic justice.”45 But the response from the UN headquarters in New York that oversees the implementation of  De Brouwer, Anne-Marie. Reparations to victims of sexual violence: Possibilities at the International Criminal Court and at the Trust Fund for victims and their families. (2007) Leiden Journal of International Law 20, 207–237. 43  Ibid. 44   Hassan Jallow. (2007, January 31) Justice after Genocide: The Challenges of the International Criminal Tribunal for Rwanda. Speech to the University of Lund in Stora Salen. [Online]. Available: http://www.radioupf.se/contents/Hassan%20B%20Jallow%20 %20Justice%20after%20Genocide%20Jan%20-07%20Lund.pdf 6. 45  Ibid. 42

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the Security Council resolution calling for the establishment of the ICTR firmly rejected these efforts at enabling a modicum of reparative justice, stating, “The task of the ICTR is, in the first place, the pursuit and punishment of perpetrators of international crimes. The ICTR’s mandate does not allow for social assistance programs.”46 Thus, criticisms of the ICTR’s historical functioning are not primarily criticisms of the ICTR, but of the United Nations system. The United Nations system very deliberately advanced a mandate for the tribunals that excluded reparative justice, and in so doing it created a lasting legacy of violations of the very right to reparative justice that many international laws sanctioned and codified by the UN—as we shall soon see—affirm. The fundamental dissonance, hypocrisy, and contradiction of this policy call into question the basic legal and moral integrity of the United Nations. The International Criminal Court—established many years after both ad hoc tribunals for Rwanda and the former Yugoslavia—made an effort to correct some of these structural injustices and contradictions. It pursues legal rulings on reparative justice with sensitivity to the range of needs of survivors of genocide and mass atrocity. It approaches reparative justice not exclusively or primarily in the manner of a functional, schematic legalistic framework for compensation whereby certain amounts of money are given in reparation for particular crimes. Rather, it carefully analyzes the ways in which crimes undermine particular human rights and human capacities and, therefore, awards funding for programs that repair, to the extent possible, those damaged rights and capacities. For example, in both Uganda and the Democratic Republic of Congo (DRC), the International Criminal Court Trust Fund has established three categories of programs, reflecting the three aspects of its independent mandate to provide support to victims. These are physical rehabilitation, psychological rehabilitation, and material support. The Trust Fund says that the idea of livelihood “embodies three fundamental attributes: the possession of human capabilities (such as education, skills, health, and psychological orientation); access to tangible and intangible assets; and the existence of economic activities.”47 Elaborating on this, it says that “the interaction between these attributes defines how the Board of Directors prioritizes support so that victims can cope with and recover from the stress and shocks of victimization.”48  Ibid.  Conor Mccarthy. Reparations under the Rome Statute of the International Criminal Court and reparative justice theory (2009) The International Journal of Transitional Justice, 3, 253–271. 261. 48  Ibid. 46 47

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In this regard, the ICC is similar to the Inter-American Court of Human Rights that—in its rulings requiring compensation for victims of human rights violations in Latin America—was careful to consider the full range of human rights violations, how they caused harm, and the manner in which the rights and welfare of survivors can best be affirmed and restored. It used a context-specific thick rather than a thin approach to compensation, and one that is culturally and psychologically informed. In the act of providing compensation to rehabilitate, it humanizes and empowers victims: Rehabilitation involves measures signed to alleviate the physical, psychiatric, or social harm suffered by victims. … A wide variety of measures are encompassed by the concept of rehabilitation. The Inter-American Court of Human Rights has a particularly well-developed body of jurisprudence in this respect. The measures it has ordered include free healthcare and medicine for victims, the establishment, in communities where atrocities occurred, of specialist health clinics with capabilities in matters such as prosthetics, the provision of psychiatric counselling, and psychosocial support services.49

Programs supported by the ICC Trust Fund acknowledge that individuals derive a significant portion of their identity, sense of security in the world, meaning, and purpose from their larger collective affiliations and/or identities that may have been targeted during mass atrocity. That is a fundamental concern of genocide survivors, and it is a positive step that the ICC Trust Fund is respectful of this concern and this psychological and cultural reality for survivors of mass atrocity. Examples of projects that the Trust Fund for Victims of the ICC has funded are exemplary of the kind of programs needed in Rwanda to assist genocide survivors. They include agricultural training and counseling, vocational training, microcredit and savings programs, psychological counseling, reconstructive surgery and other healthcare, education grants and public education campaigns on human rights issues, and community centers and safe houses for disadvantaged and at-risk children and youth.50 By providing for the reparative needs of entire affected communities, the  Ibid.  The Trust Fund for Victims, (2012d) What We Do. [Online]. Available: http://trustfundforvictims.org/what-we-do 49 50

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Trust Fund simultaneously honors the fact that individuals targeted during genocide, for example, suffer and have their rights violated both as individuals and as members of a collective. This recognition is essential both to accurately respond to the consequences of mass atrocity and to tangibly and publicly affirm the dignity and human rights of those who have faced persecution. As Rubio-Marin and De Greiff write: Group-based measures are intended to make a contribution to reshaping social meanings, allowing present and future members of targeted groups to preserve their identity, status, culture, and sense of self-worth and reducing the chances of exposure to ongoing widespread societal discrimination and violence.51

This is significant because during genocide individuals are murdered on the basis of their group identity/affiliation and in the process along with individuals, communities, cultures, and collectives are also destroyed. The situation of Rwandan genocide survivors—whose rights to reparative justice and whose human rights more broadly have been neglected and violated for so long—is a tragic illustration of a broader international failure that impacts not only victims of genocide, but victims of mass atrocity generally. Ruben Carranza, a researcher on reparative justice, notes how little concern there has been among various international actors, institutions, and ad hoc programs of transitional justice for enabling the welfare of victims of mass atrocity: The necessity of reparations is often undisputed. Reparations are arguably the most victim centered of the various approaches to fighting impunity; but in recent years, most of the international resources meant for transitional justice and peacebuilding has gone to operating war crimes tribunals, occasionally to truth commissions, certainly to reintegrating ex-combatants, but seldom, if ever, to directly benefit victims of human rights violations.52

Unfortunately, many NGOs have been complicit in their programming and priorities with this neglect and marginalization of survivors of genocide in Rwanda.

51   Ruth Rubio-Maren and Pablo de Greiff. Women and reparations.  (2007) The International Journal of Transitional Justice, 1, 337. 52  Carranza, Ruben The Right to Reparations in Situations of Poverty. ICTJ Briefing. [Online]. Available: http://ictj.org/sites/default/files/ICTJ-Global-Right-Reparation2009-English.pdf

CHAPTER 3

Treaty Law for States, Soft Law Addressing Non-State Actors, and the Human Rights Responsibilities of NGOs

The Universal Declaration of Human Rights makes reference to a right to repair, stating “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental human rights granted him by the constitution or by the law.”1 The Permanent Court of International Justice ruled in the Chorzow Factory case that, “It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form.”2 What constitutes adequate repair and rehabilitation is extensively addressed in international human rights law. I define reparative justice in accordance with the UN Basic Principles on the Right to Remedy and Reparation which, as discussed in the introduction, include five principles: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.3 Building on these principles, the Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation addresses the distinctive vulnerabilities and needs of women. It states that NGOs and other non-state actors need to be held to account for their human rights 1  UN Universal Declaration of Human Rights. http://www.un.org/en/documents/ udhr/, Article 8 (see note 32 in Chap. 1). 2  Permanent Court of International Justice Chorzow Factory Case. http://www.icj-cij. org/pcij/series-a.php?p1=9&p2=1 3  The Basic Principles were affirmed by the Commission on Human Rights, Resolution 2005/35 and the Economic and Social Council Resolution 2005/30 in addition to the UN General Assembly’s approval of the Principles in Resolution 60/147 of December 16, 2005.

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responsibilities and potential violations.4 It also affirms that development is not a substitute for reparation and reparation is a distinctive right. This is particularly relevant in Rwanda, where development and humanitarian NGOs are undermining the Nairobi Declaration by providing development programs for women and girls while simultaneously denying them remedy and reparation. Restitution seeks to restore the victim/survivor—as much as feasible— to their life circumstances prior to the violation of their human rights. This includes restoration of property, employment, family reunification, return to one’s place of residence, personal freedom, human rights, identity, and equal citizenship status. Compensation provides financial or other resource-­ based provision for a wide range of losses. These include economic losses as a result of theft and destruction of property as well as compensation for physical and mental harm, lost opportunities including education and social benefits, material damages and loss of earnings including loss of earning potential, moral damage, and the costs of legal services, and social services including medical and psychological support. Rehabilitation entails access to a range of health services incorporating both physical and mental health as well as social services such as housing, education, skills training, and income support for those suffering from poverty as a result of severe human rights violations. Satisfaction may take the form of new laws protecting human rights, public education and commemoration programs as well as truth commissions, information about where the remains of relatives of victims were interred, police training programs, public apology, formal judicial accountability for perpetrators of human rights violations, and government services that provide victim/survivors with a sense of security. Guarantees of non-repetition include civilian control of the military, an independent judiciary, public education and police and government services training on human rights law, reviewing and reforming laws in accordance with international human rights law, creating a mechanism to monitor and address social conflicts in accordance with international human rights law, and creating professional and ethical codes of conduct for public servants.5

 UN Nairobi Declaration on Women and Girls’ Right to a Remedy and Reparation. http://www.fidh.org/IMG/pdf/NAIROBI_DECLARATIONeng.pdf 5  UN Basic Principles on Remedy (see note 5 in Chap. 1). 4

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Treaty law on the right to reparative justice is extensive in both depth and breadth. The UN Convention on the Rights of the Child,6 The UN Convention Against Torture,7 The International Covenant on Civil and Political Rights,8 The UN Convention on the Elimination of All Forms of Racial Discrimination,9 the African Charter of Human and People’s Rights,10 the American Convention on Human Rights,11 and the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms all guarantee a right to reparative justice for victims.12 Additionally, the optional protocol to the International Covenant on Economic, Social, and Cultural Rights allows victims of violations of these rights to petition the Committee responsible for monitoring of the Covenant for redress.13 As noted earlier, The International Criminal Court has an innovative dedicated Trust Fund for Victims and has disbursed several million dollars to advance reparative justice programs.14 In 2012, the International Court of Justice provided for reparative justice in its 2012 Ahmadou Sadio Diallo judgment in which Guinea alleged violations of the International Covenant on Civil and Political Rights by Congo.15

 UN Convention on the Rights of the Child. http://www.ohchr.org/en/professionalinterest/pages/crc.aspx, Article 39 7  UN Convention Against Torture. http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx, Article 14. 8  International Covenant on Civil and Political Rights http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx, Article 2. 9  UN Convention on the Elimination of All Forms of Racial Discrimination http://www. ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx, Article 6. 10  African Charter of Human and People’s Rights. http://www.achpr.org/instruments/achpr/, Article 7. 11  American Convention on Human Rights. http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.htm, Article 25. 12  Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms. http://conventions.coe.int/treaty/en/treaties/html/005.htm, Article 13. 13  At present, Rwanda is not a signatory. http://www.ohchr.org/EN/ProfessionalInterest/ Pages/OPCESCR.aspx 14  International Criminal Court Trust Fund for Victims. http://www.trustfundforvictims.org/ 15  Gerald L.  Neuman, ‘Bi-Level Remedies for Human Rights Violations’ (2014) 55 Harvard International Law Journal. For more on the role of regional courts in the enforcement of reparative justice see: 6

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The Inter-American Court of Justice has precedent setting rulings on reparations for victims of severe human rights violations.16 This case law can assist NGOs to incorporate reparative justice in their programming in accordance with the concerns addressed and rewards provided in the Court’s rulings. Many of them are relevant to a Rwandan post-genocide context because they address human rights violations that took place during the genocide. One of the most significant of the Inter-American court’s cases was that of Velasquez-Rodriguez. It emphasized the obligations of states to provide victims of human rights violations with reparations, in relation to forced disappearances in Honduras. This decision influenced the governments of Chile and Argentina, who developed large-­ scale programs of reparation for victims of dictatorial rule in their nations.17 In the Loayza Tomayo case the Inter-American Court ruled that the Peruvian government must fund medical treatment for post-traumatic stress disorder for a survivor of torture at the hands of the Peruvian police. In the Barrios Altos case the court ruled that the Peruvian government must fund social and health services for life to survivors of a massacre conducted by the Peruvian military. In the Neira Alegria case, the court ruled that the Peruvian government must provide financial compensation to surviving family members of individuals who were ‘disappeared’ in Peruvian jails, to make up for lost earnings and ensure that their family members would not fall into poverty.18 Additional relevant cases include the Caracazo judgment against Venezuela in which the Court ruled that Thomas M. Antkowiak, ‘Remedial Approaches to Human Rights Violations: The InterAmerican Court of Human Rights and Beyond’ (2008) 46 Columbia Journal of Transnational Law. Thomas M. Antkowiak, ‘An Emerging Mandate for International Criminal Courts: Victim Centered Remedies and Restorative Justice’ (2011) 47 Stanford Journal of International Law. 16   Gina Donoso, ‘Inter-American Court of Human Rights Reparations Judgments: Strengths and Challenges for a Comprehensive Approach.’ http://www.corteidh.or.cr/tablas/r24577.pdf http://opiniojuris.org/2014/08/08/emerging-voices-extraordinary-reparationslegitimacy-inter-american-court/ Bridget Mayeux and Justin Mirabal, ‘Collective and Moral Reparations in the InterAmerican Court of Human Rights’. http://www.utexas.edu/law/clinics/humanrights/ work/HRC_F09_CollectiveReparations.pdf 17  De Greiff, Pablo, Handbook of Reparations (Oxford 2008), 472. 18  See De Greiff (see note 51 in Chap. 2) 451–472 and case law in bibliography. The European Court of Human Rights has also ruled in support of reparations. See the bibliography for relevant cases.

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Venezuela must provide compensation for lost earnings to family members of 37 individuals illegitimately executed by the Venezuelan police. In cases against Guatemala for the torture and execution of street children in the Street Children Case and the White Van Case surviving family members received compensation for moral injury.19 The Inter-American Court of Human Rights has stated in the Velasquez-Rodriguez judgment that reparation “consists of full restitution, meaning the restoration of the prior situation, the reparation of the consequences of the violation, and indemnification for patrimonial and non-patrimonial damages, including emotional harm.”20 It has further stated that “Under international law a duty to provide reparations attaches to every violation of an international obligation which results in harm.”21 Under international humanitarian law, the Hague Convention regarding the Laws and Customs of Land Warfare includes specific requirements for compensation. Likewise, the four Geneva Conventions of August 12, 1949, contain a provision of liability for grave breaches and the 1977 Additional Protocol I (Article 91) specifically provides for the payment of compensation.22 Although international human rights law is predicated on the principle of state responsibility for its respect, protection, and fulfillment, the Universal Declaration of Human Rights23 (UDHR) affirms that international human rights principles and aspirations apply not only to states but to “every individual and every organ of society.”24 As an organ of society, NGOs are thus included in having international human rights social and moral responsibilities. Further, Andrew Clapham argues that in being “a common standard for all peoples and all nations”25 it applies universally,  Ibid.  Velasquez Rodriguez vs. Honduras, judgment on reparations, July 12, 1989. Inter-American Court of Human Rights Velasquez Rodriguez v Honduras http://www1.umn.edu/humanrts/iachr/b_11_12d.htm 21  Ibid. 22  Hague Conventions. https://ihl-databases.icrc.org/ihl/INTRO/195 Geneva Conventions and Additional Protocols. https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions 23   Universal Declaration of Human Rights. http://www.un.org/en/documents/ udhr/, UDHR. 24  Ibid. 25  Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford University Press 2006). 228. 19 20

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without exception and limitation, building on the argument of Louis Henkin. Further, he states, “Two UN High Commissioners for Human Rights, Mary Robinson and Sergio Viera de Mello, both wrote that corporations were to be considered ‘organs of society’ in this context. By 2004, EU Governments conceded that ‘such a provision could allocate responsibility to corporations,’ however, they go on to draw a distinction between ‘responsibilities’ and ‘legal obligations.’”26 The Universal Declaration is directed not in a narrow way to governments—but to all individuals and groups, whatever their legal or citizenship status.27 Some legal scholars have argued for the Declaration’s status as customary international law.28 At present, however, the UDHR is not treated as such by the United Nations. However, because it is the foundational document of the UN human rights regime and all human rights laws build upon its human rights framework, the Declaration supports a compelling argument that while a legal responsibility for NGO non-state actors is currently not the accepted norm in international human rights law some degree of moral and social responsibility would be supported by the Universal Declaration. The UDHR also reflects broad consensus among nations, and this further affirms its status as codifying social and moral human rights responsibilities. The Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, adopted by the UN General Assembly in 1999, is another soft law source that affirms the role of NGOs in advancing human rights. It refers to the UN Charter, recalling that the aims of the charter, which include the protection of human rights, apply not only to states but incorporate all individuals and groups. The Charter affirms that the promotion of human rights is one of

26  Ibid. UDHR. 27  Clapham (supra note 25 in this chapter) 228. 28  David Weissbrodt and Maria Kruger refer to Theodore Meron’s argument that certain rights protected by the Universal Declaration do indeed reflect customary international law. These include: the ban on genocide, slavery, murder, forced disappearance, torture, arbitrary arrest and detention, and systematic racial discrimination. Weissbrodt and Kruger in Alston (see note 28 in Chap. 1) 1. Weissbrodt and Kruger refer to Theodore Meron, Human Rights and Humanitarian Norms as Customary Law (Clarendon Press 1989).

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the fundamental aims of the United Nations, without limiting this to the domain of states.29 The Declaration states, Individuals, groups, institutions and non-governmental organizations have an important role to play and a responsibility in safeguarding democracy, promoting human rights and fundamental freedoms. … Individuals, groups, institutions and non-governmental organizations also have an important role and a responsibility in contributing, as appropriate, to the promotion of the right of everyone to a social and international order in which the rights and freedoms set forth in the Universal Declaration of Human Rights and other human rights instruments can be fully realized.30

The Declaration leaves a great deal of interpretive leeway even though it affirms that IHRL responsibilities fall upon states, makes no explicit mention of NGO legal responsibilities, and only addresses NGO responsibilities generally.31 It seems that this Declaration does not affirm that NGOs have legal IHRL responsibilities but that they do have moral and social ones to uphold and advance IHRL. The body of soft law on NGO IHRL responsibilities is small; but the UN Charter and the Universal Declaration of Human Rights provide legally solid grounding for its expansion on the basis of moral and social NGO responsibility. Another soft law32 source pertaining to development NGOs is the UN Basic Principles and Guidelines on Development-Based Evictions and Displacements which states, States bear the principle obligation for applying human rights … norms … this does not absolve other parties, including project managers and personnel, international financial and other institutions or organizations, ­transnational and other corporations, and individual parties, including private landlords, of all responsibilities.33

 UN Charter. http://www.un.org/en/documents/charter/preamble.shtml See Articles 1, 55, and 56. 30  UDHR. Article 18. http://www.ohchr.org/en/ProfessionalInterest/Pages/RightAndResponsibility.aspx 31  Ibid. 32  General Assembly resolutions and declarations are considered soft law. 33  UN Basic Principles and Guidelines on Development Based Evictions and Displacements. http://www.ohchr.org/documents/issues/housing/guidelines_en.pdf 108 29

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Here too, significantly, the narrow emphasis on exclusive state responsibilities for IHRL is broken; but here too it is unclear if it is a moral and social affirmation of IHRL non-state actor responsibilities or a legal one. A cautious reading would conclude that it is the former rather than the latter. A regional example of soft law also points to the possibility of NGOs having human rights responsibilities.34 Philip Alston notes that this agreement makes explicit the contractual nature of the relationship between states and NGO partners as implementing agents of their policy priorities and programs. Non-state actors are looming ever larger on the horizons of international and human rights law. They are a recognized category of partners for the European Union in development and humanitarian activities.35

In so being, it is not unreasonable to affirm that they have human rights responsibilities that stem at least in part from their relationship with states and from its being characterized by acting with the resources of states, on behalf of states, as agents of states. The preambles to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights state, “The individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant.”36 While these treaties’ preambles are not legally binding, they constitute explicit and compelling articulations of why NGOs (along with all individuals and all organizations consisting of individuals, including corporations) have at the least a moral and social obligation to strive to respect, protect, and contribute to the fulfillment of the human rights set forth in the treaties. As such, they form a clear basis for soft law on IHRL social and moral obligations of NGOs. 34  Article 4 of the 2000 Cotonou Agreement between the European Union and African, Caribbean, and Pacific Group of States “recognizes the complementary role of and potential for contributions by non-State actors to the development process.” Alston (see note 27 in Chap. 1) 4. 35  Ibid. 36  Jochnick (see note 8 in Chap. 1) 63. International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights. http://www. ohchr.org/en/professionalinterest/pages/ccpr.aspx  http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx

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Although treaty bodies tasked with interpreting the scope of these treaties evince substantial resistance to the idea that non-state actors may have some human rights responsibilities, a tentative shift is emerging toward openness to this possibility. August Reinisch observes that currently non-­ state actors may have moral and social responsibilities to IHRL, though not legal ones. While at present one could hardly conceive of, for example, the UN Human Rights Committee entertaining a communication complaining of TNC or NGO behavior, there are already indications in the current practice of adopting General Comments on provisions of the ICCPR and the ICESCR by the two committees that they are willing to express their view on the human rights conformity of non-state behavior.37

Reinisch notes the willingness of the treaty body for the ICESCR to interpret it broadly, incorporating non-state actors. The CESCR General Comment Number 14 states that while only States are party to the Covenant and thus ultimately accountable for compliance with it, all members of society—individuals, including health professionals, families, local communities, intergovernmental and non-­ governmental organizations, civil society organizations, as well as the private business sector—have responsibilities regarding the realization of the right to health.38

Not all treaty bodies, however, are so liberal in interpretation. In contrast to the other treaty bodies … the Human Rights Committee goes out of its way to suggest that the Covenant does not create direct international obligations for non-state actors. ‘The article 2, paragraph 1, obligations are binding on States parties and do not, as such, have direct horizontal effect as a matter of international law.’ The careful phrasing suggests that the Committee has left open the suggestion that international human rights obligations may be binding on non-state actors under general international law. It is just that the treaty itself does not generate these rights and obligations; the treaty, as such, merely generates obligations for the states parties.39

 Reinisch (see note 14 in Chap. 1) 86.  Reinisch (see note 14 in Chap. 1) 71. 39  Clapham, supra note 25 in this chapter. 37 38

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As such, concentrating on expanding soft law sources and interpretations and encouraging its observance are a pragmatic way to encourage increased acceptance by treaty bodies of at least some degree of IHRL moral and social responsibility for NGO non-state actors. The UN Human Rights Commission accepted complaints regarding non-state actor human rights violations under its 1235 and 1503 procedures.40 The 1235 procedure allowed the Commission to create a public ad hoc working group to study and assess alleged large-scale human rights violations.41 The 1503 procedure allowed for complaints regarding human rights violations that form part of a pattern, rather than individual, discrete violations. The UN Human Rights Council, which replaced the UN Human Rights Commission, developed a new mechanism for complaints of human rights abuses which accepts complaints on a broad basis, including complaints against NGOs and other non-state actors.42 Reports made by individuals charged by the Council with investigating human rights violations make extensive reference to the human rights obligations of non-state actors. A recent example is the report of the Forum on Minority Issues which reported to the Council and devoted a section of its report to recommendations for non-state actors, including NGOs, to enhance human rights protections for minorities.43 Many NGOs have a policy of linking their work advancing development to their commitment to international human rights law but this is primarily a rhetorical and aspirational commitment, not an acknowledgment that NGOs actually have IHRL responsibilities that are legally  Reinisch (see note 14 in Chap. 1) 86.   UN Human Rights Commission Procedures. http://www1.umn.edu/humanrts/ svaw/law/un/enforcement/1503.htm 42  Recent complaints made to the Council against non-state actors include complaints against ISIS in Iraq, A/HRC/28/18 and human rights violations by non-state actor militias in Mali, A/HRC/28/83. Human Rights Council Sessions and Complaint Procedures. http://www.ohchr.org/ EN/HRBodies/HRC/ComplaintProcedure/Pages/Resolutions.aspx http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session28/Pages/ ListReports.aspx 43   Human Rights Council Session Reports. http://www.ohchr.org/EN/HRBodies/ HRC/RegularSessions/Session28/Pages/ListReports.aspx A/HRC/28/77. Recommendations of the Forum on Minority Issues at its seventh session: Preventing and addressing violence and atrocity crimes targeted against minorities. (25 and 26 November 2014). 40 41

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binding upon them. As the lawyer T.  Jeffrey Scott writes, “NGOs that focus on economic and social rights tend to be more involved with the fulfillment of rights, while NGOs that focus on civil and political rights tend to be more involved with the promotion of rights.”44 Regardless of their particular emphasis and orientation, I argue NGOs have IHRL moral and social responsibilities. Even if NGOs do not consider international human rights law to be binding upon them (whether legally, morally, socially, or some permutation thereof) they often frame their goals as the fulfillment of international human rights and their projects aim to fulfill at least some of these international human rights. Regarding Oxfam, Scott states, “Oxfam’s explicit emphasis on human rights provides a clear mandate and basis in international law.”45 Scott further argues that NGOs can advance human rights by convincing states to refrain from policies that ‘result in maldevelopment.’46 Further, NGOs can work to fulfill the right to development by promoting the reform of national and international institutions in order to influence local development policies, identifying remedial measures, acting as a conduit for public opinion and local experience in order to customize official programs to public needs.47

In a transitional justice context, NGOs are particularly well-positioned to ensure that nascent development efforts reflect respect for and fulfillment of IHRL on reparative justice. Self-regulating codes of conduct created by NGOs in the fields of development and humanitarian aid/disaster relief such as the International Red Cross and a federation of major development organizations contribute to the soft law on human rights responsibilities of NGO non-state actors both in a transitional justice context and in general. The Code of Conduct of the International Red Cross does not make overt commitments to IHRL, although many of its core commitments clearly reflect respect for IHRL and the International Bill of Rights in that the Red Cross prohibits discrimination on the basis of race, creed, and 44  T. Jeffrey Scott in C. Welch (ed), NGOs and Human Rights: Promise and Performance (University of Pennsylvania Press 2001), 208. 45  Ibid. 46  Ibid. 47  Scott (see note 44 in this chapter) 209.

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nationality; they “respect culture and custom,” and they “recognize disaster victims as dignified human beings, not hopeless objects.”48 The Code of Conduct was agreed upon in 1994 by the International Red Cross alongside eight international disaster response organizations. On its functioning and significance the Red Cross states, The code is self-policing. There is as yet no international association for disaster-response NGOs which possesses any authority to sanction its members. … It is hoped that humanitarian actors around the world will commit themselves publicly to the code by becoming a signatory and by abiding by its principles.49

Similarly, the International Non-Governmental Organization Accountability Charter seeks to create a self-policing statement of standards by which NGOs should undertake to conduct themselves. Originally written in 2005 it was revised and made more comprehensive in 2014.50 The Charter focuses on the concept of accountability, but unlike the Red Cross Code of Conduct very directly refers to human rights as its guiding framework with regard to institutional goals, policies, and behaviors. It opens by stating, “We are independent non-governmental organizations (NGOs) that work globally to advance human rights, promote equitable and sustainable development and well being, environmental protection, humanitarian response, and other public goods.”51 The charter states that INGOs are accountable to the peoples (including future generations) whose rights we seek to protect and advance. We are further accountable to ecosystems, our members, supporters, staff and volunteers, donors, partners, regulatory bodies, the general public and organizations or peoples whose policies, programmes or behaviour we wish to influence.52

48   Red Cross Code of Conduct. http://www.ifrc.org/en/publications-and-reports/ code-of-conduct/ 49  Ibid. 50  Accountability Charter. http://www.ingoaccountabilitycharter.org/ Its members include some of the largest and most reputable development agencies, including but not limited to: CARE, Oxfam, Action Aid, Caritas, Save the Children, PLAN, World Vision, and SOS Children’s Villages. 51  Ibid. 52  Ibid.

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Its first ‘Accountability Commitment’ is ‘Respect for Human Rights,’53 specifically, “as expressed in the Universal Declaration of Human Rights.”54 It states, We will respect and advance the equal rights and dignity of all human beings. We seek to advance international and national laws that promote human rights, ecosystem protection, sustainable development and other public goods. Where such laws do not exist, are not fully implemented, or are being abused, we will highlight these issues for public debate and advocate for appropriate remedial action.55

The charter identifies diversity and inclusion as values and commitments, dedicating to “identification of potentially discriminated groups (where this does not lead to any danger for those identified)—which will inform the planning, implementation and evaluation of operational activities and programmes and support the setting of inclusion objectives where relevant.”56 The Canadian Council for International Co-operation (CCIC) adopted a code of ethics and code of conduct in 1995 that led to a revised Code of Ethics issued in 2004 and the current, revised Code of Ethics and Operational Standards issued in 2009. Significantly, it’s preamble states in article 1.4, “While recognizing that the primary responsibility for the protection and promotion of human rights rests with governments, CCIC and its Member Organizations support the fulfillment of these rights through their development and advocacy efforts.” It further states, “In all their activities, CCIC and its Member Organizations should respect and promote the human rights and dignity of all people.”57 The ‘Sphere Project,’ which led to the development of a Humanitarian Charter stemmed in part from the failures of NGOs to adequately respect humanitarian law in their response to the Rwandan genocide against the Tutsi.58 It has a very narrow remit in that it focuses on humanitarian rather than human rights law and commits itself to three limited principles: the  Ibid.  Ibid. 55  Ibid. 56  Ibid. 57  CCIC Code of Ethics. http://www.ccic.ca/_files/en/about/001_code_ethics_operational_standards_e.pdf 58  Clapham (supra note 25 in this chapter) 314. 53 54

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right to life with dignity, upholding the distinction between combatants and non-combatants, and the principle of non-refoulement. Still, it is a noteworthy example of soft law attempts at NGO self-regulation.59 One of the most significant recent attempts to improve the effectiveness of development aid, the Paris Declaration on Aid Effectiveness, brought together donor and recipient countries, and created a non-­ binding framework for assessment of aid quality and periodic assessments of the sector and evaluation of its adherence to the principles it developed to advance effective aid.60 Gender equality, respect for human rights, and environmental sustainability are cornerstones for achieving enduring impact on the lives and potential of poor women, men, and children. It is vital that all our policies address these issues in a more systematic and coherent way.61

It further refers to IHRL commitments by affirming that, Developing countries and donors will ensure that their respective development policies and programmes are designed and implemented in ways consistent with their agreed international commitments on gender equality, human rights, disability, and environmental sustainability.62

But the Paris Principles provide no guidance as to NGO responsibility for human rights respect and fulfillment even as they affirm the role of NGOs in contributing to the respect and fulfillment of human rights in the context of development aid. In considering soft law on the IHRL responsibilities of NGOs the UN Guiding Principles on Business and Human Rights (the Ruggie Principles) provide a model for how such soft law can be developed and for its content.63 As previously stated, the Ruggie Principles are not legally binding; 59  See www.thesphereproject.org for the Humanitarian Charter. The Sphere Project appears to have been eclipsed by the larger scale subsequent efforts of NGOs to self-regulate themselves in incorporating human rights law rather than exclusively humanitarian law. 60   Paris Declaration on Aid Effectiveness. http://www.oecd.org/dac/effectiveness/45827300.pdf 61   Paris Declaration Aid Effectiveness. http://www.oecd.org/dac/effectiveness/45827311.pdf 62  The Paris Principles (see note 34 in Chap. 2). 63  For a critique of the Ruggie Principles and their limitations, see Ivar Kolstad, ‘Human Rights and Positive Corporate Duties: The Importance of Corporate-State Interaction’ (2012) 21 Business Ethics: A European Review. Kolstad argues that the Ruggie Principles

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they are social and moral responsibilities rather than legal ones. As such, they have been criticized for lacking enforceability. This is a reasonable criticism; the same could be said for developing soft law on NGO IHRL responsibilities. However, if the Ruggie Principles were a compromise in that there was little support on the part of states for binding IHRL for corporations and in the absence of such support it was exceedingly difficult—if not impossible—to advance legally binding IHRL for corporations then the same is likely to be the case for NGOs. There is no enthusiasm and little openness on the part of treaty bodies and states themselves to create legally binding IHRL for NGOs. As such, the best alternative is to develop soft law which, as discussed earlier, with time will likely influence the policies and behavior of NGOs in a positive way leading to greater respect for and fulfillment of IHRL responsibilities, and eventually may crystallize into customary international law. The UN Guiding Principles on Business and Human Rights were endorsed by the UN Human Rights Council on June 16, 2011, and a UN Working Group on Business and Human Rights was also established.64 The Ruggie Principles are particularly relevant to IHRL social and moral responsibilities of NGOs, as they reflect similarities between the power dynamics of corporate relations with the state and those of NGO relations with the state and the ways in which NGOs can impact respect and fulfillment of IHRL in their programming: • The responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate. It exists independently of States’ abilities and/or willingness to fulfill their own human rights obligations, and does not diminish those obligations. • Because business enterprises can have an impact on virtually the entire spectrum of internationally recognized human rights, their responsibility to respect applies to all such rights … the Universal Declaration are too vague and do not hold corporations sufficiently accountable for respecting human rights and for applying pressure on governments to respect IHRL. 64  UN Guiding Principles on Business and Human Rights, http://business-humanrights. org/en/un-guiding-principles/related-initiatives The Principles were a result of a lengthy process of development by John Ruggie in consultation with governments, corporations, academics, NGOs, and a broad cross-section of civil society between 2005 and 2011 when Ruggie served as UN Special Representative on Business and Human Rights.

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of Human Rights and the main instruments through which it has been codified: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. …These are the benchmarks against which other social actors assess the human rights impacts of business enterprises. • In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances. These include human rights due diligence, remediation for adverse human rights impacts, and addressing the human rights risks facing marginalized and disadvantaged populations.65

The way in which the Ruggie Principles were developed, having an appointed Special Representative, a comprehensive consultation process, the creation of human rights guidelines and principles, and endorsement by the UN Human Rights Council, is a model for developing IHRL soft law for NGOs in both process and product. Every reference to ‘business enterprises’ in the Principles can be replaced with ‘NGOs’ and the moral logic and coherence of the reasoning for NGO social and moral obligations to respect human rights remains. To be sure, global corporations generally have vastly greater budgets, larger numbers of employees, and much more political power and influence than NGOs. They are far more resource rich and economically independent than even the largest international NGOs. Unlike NGOs, which are responsible principally to boards of trustees and donors and have non-­ profit status, corporations are accountable to their boards and to shareholders, and their primary goal is profit rather than social goals such as healthcare, education, and poverty reduction. Despite these real differences between corporations and NGOs, there are substantial and sufficient similarities between them that show a common applicable logic between the argument for the social and moral responsibilities of corporations and those of NGOs. NGOs also generally define themselves in relation to a set of social and moral aspirations and ways of working that they use to identify themselves and to differentiate themselves within the large and diverse NGO community. It is reasonable to hold them accountable to the same standards by which they generally define their missions,  Ibid.

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values, and purpose which are so fundamental to how they fundraise and advertise themselves and how they command resources and power globally. It is significant that the principles affirm that corporations have independent human rights responsibilities, irrespective of those of states—this is fundamental to my argument about NGO IHRL responsibilities. So too is the reference to the human rights responsibilities delineated in the Universal Declaration, the ICCPR, and the ICESCR which we have just examined in reference to their creating human rights social and moral responsibilities for NGOs. Finally, the assurance that the human rights of vulnerable and disadvantaged minorities are respected and reflected in policy reflects the IHRL concerns we have discussed with the responsibilities of NGOs to such populations, which, in a Rwandan context, include genocide survivors. NGOs have played a prominent role in seeking to hold transnational corporations (TNCs) accountable for international human rights law respect and fulfillment. Many development NGOs, including two actively working in Rwanda, Christian Aid and Oxfam, supported the UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights in UN resolution 2001/16.66 It is reasonable to argue that just as NGOs demand high human rights standards and obligations of corporations, they should maintain the same standards for themselves. Meanwhile, countries, organizations, and individuals which believe that some non-state actors, particularly corporate non-state actors, should have IHRL legal responsibilities continue to advance this position. In September of 2013 Ecuador proposed legally binding treaty law for corporations, with the aim “to provide appropriate protection, justice and remedy to the victims of human rights abuses directly resulting from or related to the activities of some transnational corporations and business enterprises.”67 Organizations from civil society globally, including many NGOs, supported this effort and in June of 2014 the UN Human Rights Council established a working group as a result of Human Rights Council resolution 26/9 to advance treaty law that would create legally binding IHRL 66  UN Norms on Responsibilities of Transnational Corporations, http://www1.umn. edu/humanrts/business/norms-Aug2003.html 67  ‘Statement on Behalf of a Group of Countries at the 24rd [sic] Session of the Human Rights Council’ http://business-humanrights.org/sites/default/files/media/documents/statementunhrc-legally-binding.pdf

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obligations for corporations.68 Such efforts are likely to eventually place pressure on NGOs to acknowledge that they too have IHRL obligations, and cannot shirk these by focusing their advocacy efforts exclusively on IHRL legal responsibilities for corporations. The development sector has proven itself in substance to be unresponsive to self-regulatory efforts of reform, including with regard to human rights respect and fulfillment.69 In all these efforts, people who actually receive development aid are conspicuously absent, a cause for concern and rectification. As these self-regulating codes indicate many NGOs have, in theory at least, accepted that they have moral and social IHRL responsibilities. Their nascent efforts need to be built upon, codified, and provided with a robust framework for enabling monitoring and assessment and encouraging respect and fulfillment. When one considers the soft law on the general human rights responsibilities of NGOs with the extensive treaty law and soft law on reparative justice we have just examined, it follows that the IHRL on reparative justice falls within the remit of social and moral responsibilities of development and humanitarian NGOs to respect and fulfill as part of their general IHRL obligations. As major actors with the resources, power, and influence to advance the respect and fulfillment of IHRL on reparative justice, it is incumbent upon them to exercise their substantial abilities to encourage respect for and to be direct agents of the fulfillment of IHRL on reparative justice.

68  http://www.ijrcenter.org/2014/07/15/in-controversial-landmark-resolution-humanrights-council-takes-first-step-toward-treaty-on-transnational-corporations-human-rightsobligations 69  Paris Principles (see note 34 in Chap. 2). http://www.oecd.org/dac/effectiveness/parisdeclarationandaccraagendaforaction.htm

CHAPTER 4

How International Human Rights Law Potentially Applies to Development NGOs in a Post-Mass Atrocity Context Working in Partnership with/as Proxies of States

Andrew Clapham argues that arguments about the human rights responsibilities of non-state actors in part hinge upon the extent to which lawyers, scholars, and practitioners recognize changing political and social understandings and expressions of the distinction between public and private, and the new ways in which public and private are conceived of and expressed globally, and how they mediate expressions of power that impact upon human rights outcomes. This paradigm shift, away from what has usually been an exclusively state-­ centric approach to human rights protection, also means that our appreciation of the traditional importance of the boundary between public and private may need adjusting if we are going to develop a coherent theory of human rights protection capable of practical application to protect the victims of indignities everywhere. We need not only to develop a framework for non-state actors, but also to re-examine the effect of the distinction we make between state and non-state activity—between public and private—between governmental and non-governmental. … We cannot pretend that the public/private distinction is a pre-ordained static border.1

1

 Clapham (supra note 25 in Chap. 3) 1.

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Indeed it is precisely this reality of the increasingly permeable border between public and private, between state and NGO, and the integral link between the two that is fundamental to acknowledging the human rights responsibilities of NGOs. Clapham also argues that in order to advance the principle that NGOs have human rights responsibilities, the concepts of complicity and complementarity are fundamental. This is because of the ways in which the actions of NGOs are imbricated with those of the state, and as reflections of state policy both complement state activities and are an expression of them, hence their ‘complicity’ in the policies of the state by being the state’s implementing agents vested with the authority, resources, and will of the state. The human rights responsibilities of NGOs stem in part from the practical limitations of states that often fail to respect and fulfill international human rights law. David Karp states, “Our actual world is one of imperfect states. … States do not always have the capacities that, in ideal theory, one might argue they ought to have. They are not always legitimate authorities who act in the public interest.”2 Given this reality, it merits attention to explore what are the responsibilities of NGOs operating in such an imperfect world? A world in which states do and will fail to respect and fulfill human rights laws in which NGOs, acting as proxies for the state, have the power and resources to advance or retard human rights directly through their programming content. As Eric de Brabandere states about the need to reflect upon and revise IHRL attitudes toward the human rights responsibilities of non-state actors, “Indeed, the traditional view that under human rights law the individuals hold the rights while only states bear the obligations has incrementally been subjected to criticism for its inability to fully respect and ensure respect for human rights of individuals.”3 NGOs do not have the same international legal personality as states. I acknowledge the circular quandary that August Reinisch depicts regarding such arguments claiming that NGOs have the same legal obligations as states which are more axiomatic in nature than analytical, statements of conviction and belief rather than legal exposition. Why would we want to show that non-state actors are subjects of international law? To demonstrate that they may be direct addresses of human rights obligations. How do we try to show that they are subjects of international law? By asserting that they are direct addresses of human rights obligations under international law.  Karp, (see note 29 in Chap. 1) 13. See also note 26 in Chap. 1.  Eric de Brabandere, ‘Non-State Actors and Human Rights: Corporate Responsibility and the Attempts to Formalize the Role of Corporations’ in Participants in the International Legal System (eds) Jean d’Aspremont (Routledge 2011) 268. 2 3

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NGOs generally cannot be party to international treaties, and thus this limits the ability to hold them accountable to IHRL. Supporting this characterization of the current IHRL regime Andrew Clapham explains that non-state actors, even when acting as partners with and with the approval of states are not considered to be legally obligated to respect and fulfill international human rights law; this is exclusively a burden of states: the rules of state responsibility attribute the acts of non-state actors to the state where that entity is empowered by the law of the state to exercise elements of governmental authority; where the non-state actor was acting on the instructions of, or under the direction or control of the state; where the non-state actors is in fact exercising elements of governmental authority due to defaulting government authorities.4

Alston similarly states that, At present one certainly cannot speak of any established system of international mechanisms whereby non-state actors are held directly accountable for human rights violations, even though one might recognize an increasing awareness that they are considered to be directly bound by human rights obligations.5

The Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social, and Cultural Rights reinforce Clapham and Alston’s analysis of the applicability of IHRL to states. “State responsibility extends to acts and omissions of non-State actors acting on the instructions or under the control of the State; and acts and omissions of persons or entities which are not organs of the State, such as corporations and other business enterprises, where they are empowered by the State to exercise elements of governmental authority, provided those persons or entities are acting in that capacity in the particular instance.”6 Despite the  Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford University Press 2006). 460. 5  August Reinisch, in Philip Alston (ed) Non-State Actors and Human Rights (Oxford University Press 2005). 82. h t t p : / / w w w. e t o c o n s o r t i u m . o r g / n c / e n / l i b r a r y / m a a s t r i c h t - p r i n c i p l e s / ? tx_drblob_pi1%5BdownloadUid%5D=23 6  Ibid. 4

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current limitations presented by treaty law and its prevalent interpretation by treaty bodies, a framework for expanding some human rights obligations to include NGOs has emerged, even if these are defined primarily as social and moral human rights obligations, rather than explicitly legal ones. August Reinisch states, While states are clearly the primary addresses of human rights obligations, the language of core human rights instruments does not narrowly restrict itself to states … the idea of ‘private’ duties with regard to human rights—in addition to the traditional, exclusive ‘public’ duties of states—finds some support in positive law.7

NGOs work in collaboration with states. They are able to do their work only with the agreement of states and, in effect, act as state proxies and agents, carrying out state policy and providing extensive social goods that are considered to be the responsibility of the government. Many of these services fall within the ambit of the International Covenant on Economic, Social and Cultural Rights and other international human rights sources.8 Therefore, when NGOs take on responsibility for the provision of services that international human rights law defines as in the domain and responsibility of the government to respect, protect, and fulfill, they must make a good faith effort to facilitate these protections within the limits of what is feasible given their resources. Failing to do so, I argue, by agreeing to provide some social goods but denying others to rights-bearing individuals would potentially make NGOs complicit in a state’s violation of IHRL. It is essential to recognize the increasing power and influence of NGOs in considering their human rights responsibilities. As Menno Kamminga writes, NGOs play an increasingly important role on the international plane, and to some extent this is being reflected in their formal status. Some ‘hybrid’ NGOs have concluded treaties with States and they enjoy privileges and immunities similar to those of IGOs. In some instances, NGOs are also able to bring international claims against States. Perhaps most spectacularly, NGOs more and more play a crucial role in the drafting of international instruments and in the follow-up and monitoring of those instruments. This  Reinisch (see note 5 in this chapter) 71.  International Covenant on Economic, Social and Cultural Rights. http://www.ohchr. org/en/professionalinterest/pages/cescr.aspx 7 8

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latter role has frequently been enshrined in treaties and other formal arrangements.9

NGOs are not merely passive agents of service provision, they have substantially more power and influence and relationships with governments that enable them to influence state behavior. The power and influence of NGOs to impact state practice has been comprehensively described and analyzed in the literature by Risse, Roppe, and Sikkink, in their books, International Norms and Domestic Change10 and The Persistent Power of Human Rights: From Commitment to Compliance.11 In these books, they illustrate how their spiral model of change concept depicts the ways in which NGOs and other non-state actors impact the policies and practices of authoritarian states, encouraging greater human rights compliance and contributing to changes in state behavior. With diverse examples from around the world—from Kenya and Uganda and South Africa—to Chile, the Philippines, Tunisia, and Morocco, and the countries of Eastern Europe—to the United States and China, NGOs act with consequence. On diverse issues such as women’s rights and gender-based violence, UN human rights treaties, torture, militia groups and terrorists, and business ethics and corporate social responsibility, their case studies show how NGOs wield influence, impact society and social norms, enable political changes, and contribute to changes in state policy and practice. In short, NGOs have power and they wield it in diverse, creative, and extensive ways that have both substantive depth and global reach. David Karp’s commentary and analysis on the human rights responsibilities of non-state actors center upon TNCs. But the power he ascribes to them, though generally far greater than that available to NGOs, still has relevance because, as discussed earlier, NGOs often have a substantial amount of power and influence vis-à-vis states. Karp problematizes the juridical basis of international human rights law that states, and only states, have the responsibility to fulfill human rights law obligations because

 Alston, See note 2 in Chap. 1.  Risse, Ropp, and Sikkink, The Power of Human Rights: International Norms and Domestic Change (Cambridge University Press 1999). 11  Risse, Roppe, and Sikkink, The Persistent Power of Human Rights: From Commitment to Compliance Cambridge University Press (2013). 9

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states have distinct qualities that make them best suited to actualize human rights law. State-centric theories of human rights, when pressed for reasons about why states uniquely ought to bear human rights duties, assume that states possess unique characteristics that, as a matter of fact, apply either as well or better to particular non-state actors in certain contexts.12

In reality, states often choose to privatize government functions and services.13 In Rwanda, for example, the government has signed a Memorandum of Understanding with the NGO World Vision for the construction and rehabilitation of 254 water points. World Vision states, “World Vision also worked closely with the Ministry of Health and other partners to reduce maternal and child death through different programs.” World Vision further states “World Vision partners with the Government of Rwanda to improve access to water and sanitation.”14 Its relationship of partnership with the Rwandan government and its acting as a proxy for the government—essentially a subcontractor—in the provision of public goods reflects that of many international NGOs in Rwanda. Karp states, It is no longer clear—if it ever really was—what a ‘public,’ ‘governmental’ and/or traditional state function is, such that state actors can be distinguished from non-state actors because they and only they perform these functions. So there is a space, unless the international human rights regime is adapted, for states to privatize away their human rights responsibility along with their traditional state functions.15

Indeed, this is what I have illustrated takes place when NGOs provide public goods on behalf of the government, in effect becoming an implementing agent of the government. The distinction between the government and the NGO is no longer empirically valid in such a relationship because it has deliberately been collapsed, with the government investing its authority and legal responsibilities in the NGO and the NGO accepting

 Karp (see note 29 in Chap. 1) 98.  World Vision Rwanda Annual Report 2013. http://www.wvi.org/rwanda/publication/world-vision-rwanda-2014-annual-report 14  Ibid. 15  Karp (see note 29 in Chap. 1) 29. 12 13

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this authority and responsibilities and acting with, under the direction of, and as an agent of the government. Building upon these observations about the character and resources of non-state actors, David Karp lists key reasons why international human rights law could reasonably apply to corporations: Corporations often have transnational character and have unique capacity to fulfill international law; corporations can affect fundamental social and economic realities; corporations are powerful, and wield power in relation to the governments of the states in which they operate; and states may regulate corporations in discriminatory ways that prejudice the rights of particular segments of their citizenry. Each of these reasons has corollaries with NGOs. NGOs are often of a transnational character and have the human and financial resources to fulfill international law. Major development NGOs involved in transitional justice efforts in Rwanda and globally such as CARE, Oxfam, and World Vision have a transnational character, with fundraising and programming offices located around the world. Non-state actors have the capacity to fulfill human rights which states may lack, and, in having that capacity, Karp argues, they share some degree of responsibility for fulfilling human rights. He also argues that because they have a public role and often provide public goods, serving a large sector of a nation’s public, such a remit entails at least some degree of co-­ responsibility for the fulfillment of human rights.16 Standard examples of public goods include national defence, security, transportation, health and education. … A single hospital, or a single school, is not a public good when analysed in isolation. However, the widespread existence of these institutions in a society contributes to health and education, which are public goods.17

The development work of NGOs is inextricably linked with the realization of a wide range of social and economic rights that impact the social and economic landscape. Whether or not NGOs choose to acknowledge it their work has tremendous bearing on the respect, protection, and fulfillment of IHRL on the part of the governments of the nations in which they operate.  Karp (see note 29 in Chap. 1) 3.  Karp (see note 29 in Chap. 1) 120.

16 17

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NGOs are not merely recipients of government directives about the nature of their development projects; like corporations, they exert power and influence vis-à-vis the governments with whom they partner regarding the nature of development projects and who will be their beneficiaries. Just as states may regulate corporations in discriminatory ways that unfairly favor some population sectors and disadvantage others, states may allow NGOs to advance the social and economic rights of particular populations with whom they wish to curry support, rather than to meet their human rights obligations to other, more disadvantaged populations with less political clout.18 On pragmatic grounds the capacity argument Karp develops is useful and intuitively logical but not sufficient to argue for some degree of legal responsibility for NGOs because it can be burdensome and potentially limitless.19 It can add to such an argument, but not form the core of it. However, Karp’s argument about the public nature of the NGO scope of action and its beneficiaries, and the core of my argument that it is the proxy nature of NGOs working as contracted agents of states that enables some degree of human rights fulfillment responsibility, when combined, make a coherent claim on the moral and social human rights responsibilities of NGOs. Karp explains that while all moral agents might have latent human rights responsibilities under the capacity approach these only become relevant when a particular agent has greater capacity than another, that is a wealthy transnational corporation or a wealthy and powerful international NGO which may be better placed and better resourced than a state government to respect and fulfill human rights.20 In a transitional justice context, and in Rwanda in particular, this would apply to the major NGOs who run programs there. Karp further states, “According to the capacity approach, the latent human rights responsibilities of secondary, or tertiary (and so on) human rights responsibility bearers become activated when those higher up the responsibility ladder fail to act as they should.”21 Thus, if the Rwandan government fails to uphold its IHRL reparative justice responsibilities NGOs working in Rwanda would be responsible for respecting and fulfilling them within their capacities.  Karp (see note 29 in Chap. 1) 30.  Karp himself acknowledges these limitations. Karp (see note 29 in Chap. 1) 90–92. 20  Karp (see note 29 in Chap. 1) 135–36. 21  Karp supra (see note 29 in Chap. 1) 3.  18 19

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Karp notes that states may lack both the will and the capacity to fulfill their international human rights law obligations, Not all states have the capacities that state-centric theories of human rights attribute to them. … State-centric theories of human rights responsibility rest on certain assumptions about sovereignty. These approaches are problematic precisely because they make untested and unjustified theoretical and empirical assumptions about states in the contemporary international system. … The idea that states have unique capacities that other actors lack is, in many cases, part of the ‘utopia’ of sovereignty. It is a normative ideal rather than an actual brute and/or social fact about the world we live in today.22

This brute fact about the world we live in today allows us to reasonably conclude that NGOs can and should influence IHRL respect, protection, and provision. This does not entail removing or lessening state responsibility for IHRL, which would be a legitimate concern. Rather, it expands this responsibility—at least with regard to moral and social responsibility for IHRL. Karp’s arguments could conceivably be used to advance NGO legal IHRL responsibilities, but that exceeds the more limited argument I make that NGOs have moral and social responsibilities to respect and fulfill IHRL because of their power, relationship with the government as agents of the government, and because they have the capacity to do so. Ivar Kolstad argues that corporations should apply pressure on governments to respect IHRL when they have the power to influence them. Kolstad states, “Where a government has the means but lacks the inclination to perform assigned duties, what corporations should do is address this lack of inclination, which can be done by applying pressure on the government to protect, promote, and fulfill the rights of its citizens.”23 The same argument can and should be applied to NGOs. As the lawyer T. Jeffrey Scott writes regarding development—though his arguments are similarly applicable to reparative justice in particular and to NGO IHRL moral and social responsibilities generally, NGOs can work to fulfill the right to development by promoting the reform of national and international institutions in order to influence local development policies, identifying remedial measures, acting as a conduit for public  Karp supra (see note 29 in Chap. 1) 92–93.  Kolstad (see note 63 in Chap. 3) 280.

22 23

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opinion and local experience in order to customize official programs to public needs.24

Indeed, NGOs are not passive, powerless partners; they have the capacity and responsibility to advance IHRL to the best of their abilities in relation to the governments with whom they work and under whose aegis they pursue their programs. The extensive nature of NGO activity acting on behalf of, in lieu of, and as an alternate agent to government that cannot or will not provide social services or that prefers to subcontract them to NGOs is increasingly acknowledged in the academic literature. As Karen A.  Mingst and Ivan M. Arreguin-Toft note, NGOS play unique roles at the national level. In a few unusual cases, NGOs take the place of states, either performing services that an inept or corrupt government is not providing or stepping in for a failed state. Bangladesh hosts the largest NGO sector in the world, a response in part to that government’s failure and the failure of the private for-profit sector to provide for the poor. Thus, NGOs have assumed responsibility in education, health, agriculture, and microcredit, originally all government functions.25

Bangladesh of course is not the only such example. Throughout the developing world one finds similar scenarios. While it is particularly prevalent in South Asia and in India and Nepal alongside Bangladesh, it is also especially true of many countries where poverty is so extreme and government infrastructure and social services severely underdeveloped—as in much of Africa—that these patterns of extensive NGO provision of social services as in Bangladesh are common, rather than unusual and exceptional. Indeed Uganda recently acknowledged the extent to which it relies on NGOs for provision of services to its citizens, and has sought to regulate those NGOs and services, in recognition of the extent to which they directly reflect and deliver government policy. In 2015, Uganda’s parliament debated a bill designed to, in the words of the country’s internal affairs minister, provide greater transparent and accountability. This bill would strongly regulate NGO activity and allow the  Scott (see note 44 of Chap. 3) 212.  Karen A. Mingst and Ivan M. Arreguin Toft, Essentials of International Relations WW Norton (2016) 249. 24 25

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country to punish NGOS aggressively for non-compliance. At the same time, the minister admitted that NGOs provided key services in health, education, and water.26

This paradigm of NGOs acting as agents of the government is not entirely new and has existed for several decades. It has long been an integral part of how the development and humanitarian aid sector work. What is new is the increasing formal and explicit acknowledgment of governments of this relationship and efforts to regulate it more formally and comprehensively.27 It is important to note that international NGOs are directed by states in how to spend their funding and delivery of social services in two contexts: from donor states and recipient states. There is a bi-directional relationship then between NGOs and states. While these examples focus on how international NGOs act as agents for states in the developing world that are generally donor recipients, NGOs equally act on behalf of donor states. Large international development NGOs such as CARE, Save the Children, World Vision, and Oxfam receive large portions of their budgets from governments, often in the tens of millions of dollars. Consequently, they are often acting on behalf of multiple states. Ultimately, however, donor recipient states as sovereigns have influence and often control over how funds are to be spent in-country, even if donor states provide general guidelines to NGOs to provide services in particular program areas, such as health services, vocational training, agricultural training, and education provision. It is not only in Rwanda that NGOs fail to respect their human rights obligations. In 2018 Oxfam28 and Save the Children were revealed to have seriously neglected adequate safety procedures to ensure the integrity of  Supra note 24, this chapter, p 251.  Dulcie Lee, ‘How Much Government Aid Does a Charity Like Oxfam Actually Get?’ The New Statesman (2018). https://www.newstatesman.com/2018/02/how-much-government-aid-doescharity-oxfam-actually-get 28  Sean O’Neill, ‘Oxford Scandal: Staff Still Offering Aid For Sex, Report Claims’ The Times (2019). h t t p s : / / w w w. t h e t i m e s . c o . u k / a r t i c l e / o x f a m - s c a n d a l - s t a f f - s t i l l - o f f e r i n g aid-for-sex-report-claims-pbx32xctw Rebecca Ratcliffe, ‘Oxfam Failed to Report Child Abuse Claims in Haiti, Inquiry Finds’ The Guardian (2019) https://www.theguardian.com/global-development/2019/jun/11/ oxfam-abuse-claims-haiti-charity-commission-report 26 27

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their employees so that they would not take advantage of asymmetrical power relations so typical of aid work for the pursuit of sex with minors and in exploitative ways with adults. A British Charity Commission report looking into the scale and scope of abuses at aid agencies had a sharp rebuke for Oxfam. Helen Stephenson, chief executive of the Charity Commission stated, What went wrong in Haiti did not happen in isolation. Our inquiry demonstrates that, over a period of years, Oxfam’s internal culture tolerated poor behaviour, and at times lost sight of the values it stands for.29

The Commission also challenged the quality and honesty of Oxfam’s selfpolicing, criticizing its internal investigation and the way it responded to cases of abuse of children as inadequate, under-resourced, and ultimately lacking in quality.30 Despite all the voluntary affirmations of ethics and respect for human rights which we have discussed to which they were signatories, these violations continued. In response, the UK government significantly cut Oxfam’s funding and warned them that they needed to improve their child protection and other prohibitions on exploitative sexual relationships and abuse if they wanted to continue to receive government contracts and government aid. Further, The inquiry also examined Oxfam’s wider approach to safeguarding and concluded that the charity’s own commitments and promises in the past had not always been matched by its resources. The commission instructed Oxfam trustees to submit an action plan to the regulator on how it would address concerns about its previous conduct, in an effort to “repair public Deborah Doane, ‘Oxfam’s ‘Hypocrisy’ Is Not Unique: The Aid System is Built On a Power Imbalance’ The Guardian (2019). h t t p s : / / w w w. t h e g u a r d i a n . c o m / g l o b a l - d e v e l o p m e n t / 2 0 1 9 / j u n / 1 2 / oxfam-hypocrisy-not-unique-aid-system-built-on-power-imbalance 29  Dhananjayan Sriskandarajah, ‘Oxfam Failed Horribly On Abuse. But I Plan To Deliver Radical Change’ The Guardian (2019). h t t p s : / / w w w. t h e g u a r d i a n . c o m / c o m m e n t i s f r e e / 2 0 1 9 / j u n / 1 4 / oxfam-abuse-power-safeguarding Oxfam Independent Commission Final Report (2019). https://independentcommission.org/wp-content/uploads/2019/06/Oxfam_IC_ Final_Report-EN.pdf UK Government Charity Inquiry (2019). https://www.gov.uk/government/publications/charity-inquiry-oxfam-gb 30  Ibid.

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trust and confidence” in the charity. Stephenson added that “cultural and systemic change is required” to address the failings identified in the report.

Not surprisingly, the commission found that, the charity should have been “fuller and franker” in its reports to donors and regulators. Its handling of the allegations “was influenced by a desire to protect Oxfam GB’s reputation, and to protect donor and stakeholder relationships,” the inquiry said.

Quite simply, NGOs have too much latitude and too little regulation and the result is predictable but also preventable violations of human rights. In 2019 the British government criticized the UK network of development organizations—which Save the Children and Oxfam belong to—for delaying addressing government concerns about the welfare and safety of individuals interacting with their employees.31 Members of Parliament called for an end to ‘voluntary self-regulation’ of aid agencies which they said “allows sexual exploitation and abuse to slip through the cracks.”32 Pauline Latham, a Conservative member of the UK International Development Committee criticized the aid agencies, stating, Some of the most vulnerable people in the world are being abused and they are being abused by people they should be able to trust. We need to support

31  Karen McVeigh, ‘Aid Agencies Accused of Failure to Make Good on Oxfam Abuse Scandal Pledges’ The Guardian (2019). h t t p s : / / w w w. t h e g u a r d i a n . c o m / g l o b a l - d e v e l o p m e n t / 2 0 1 9 / o c t / 1 8 / aid-agencies-accused-of-failure-to-make-good-on-oxfam-abuse-scandal-pledges The regulator said that when it looked at the wider issue of safeguarding in Oxfam it found ‘systemic weaknesses.’ It said this was largely down to the charity not adequately resourcing its safeguarding function. The Commission said that Oxfam’s safeguarding team was overstretched and unable to carry out much preventative work. It says it engaged with Oxfam about this between 2015 and 2017 but the charity did not meet promises to increase resources for safeguarding. Oxfam has since made a significant investment in its safeguarding team and provided training across the organization. An independent HR review, carried out for Oxfam in 2017, highlighted weaknesses and made 40 recommendations to strengthen the culture, 35 of which are in the process of being taken forward. Oxfam told the Commission it has completed 28 of these recommendations. See more at: https://www.civilsociety.co.uk/news/oxfam-inquiry-report-published. html#sthash.pL2RjhTD.dpuf 32  Ibid.

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these people. This is a huge issue within the industry. We need to move faster and they are just dragging their feet.33

Asmita Naik, co-author of a report on sex abuse among aid workers in Africa34 which revealed sexual abuse and exploitative behavior among employees of Save the Children, the International Rescue Committee, and other aid agencies, commented, Until these organisations are prepared to speak up and be honest, how on earth do they expect victims on the ground to do so? At the moment, they are still too defensive, too secretive. Where’s the sense of urgency? Where are the changes on the ground? It still seems stuck at that top level policy. That is where it has been for years.35

Commenting on the findings of the British independent commission looking into human rights abuses among aid and development agencies, Deborah Doane observes how endemic the problems were to Oxfam’s aid work. An independent investigation on sexual misconduct found abuse far beyond Haiti. The independent commission’s conclusion, after visiting 20% of countries where Oxfam works, was that the issues were endemic. Stories heard by the commission were from people being refused aid, or losing their jobs, if they refused to have sex with aid workers. Hierarchies existed for who would get help, like the older women forced to wait in the hot sun longer than those who were “desirable.”36

Without detracting from the significance of Oxfam’s lapses in enforcing protection of vulnerable individuals and groups and its failures in this regard, Doane also notes that the problems are not exclusive to Oxfam and Save the Children by any means. These complaints weren’t aimed specifically at Oxfam, as many agencies were present in the field. Nonetheless, the commission effectively called Oxfam a hypocrite—gender justice as a core objective didn’t translate in  Ibid.  Audrey Gillan, ‘Sex Abuse Work Tarnish Work of Aid Agencies in Africa’ The Guardian (2002) https://www.theguardian.com/society/2002/apr/20/voluntarysector 35  Ibid. 36  Doane (See note 28 in this chapter). 33 34

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how the organisation lived its values. Everything in the commission’s report could be written about any international NGO. The issues aren’t unique to Oxfam or Save the Children, as the report acknowledges: they are systemic across the aid system. Sexual abuse is about money and power, and these are the key pillars on which the aid system has been built. The rich donors of the north have all the money and all the power. Those who are beholden to their services have neither.37

The discrepancies in power and material resources between aid agencies and the individuals and groups they assist are so extensive and profound that until a system is in place to formally regulate NGO behavior these abuses will continue and with victims and survivors having little recourse to redress and justice. Empirically, returning to the example of Rwanda, we will now explore how NGOs pursuing development efforts there are not addressing reparative justice for Rwandan genocide survivors in a substantive way. The body of soft law and treaty law addressing reparative justice should inform the work of NGOs in Rwanda pursuing development in a transitional justice context. This should not be something to acknowledge merely rhetorically as part of a general NGO rhetorical commitment to human rights and as one consideration among many in determining NGO policy and programming. Rather, it should result from acknowledgment that if NGOs do not recognize and prioritize it they will be facilitating IHRL legal violations of the Rwandan government and thus complicit in them as well as violating their own moral and social responsibilities to respect and fulfill IHRL.

 Ibid.

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CHAPTER 5

Rwanda Case Study

The year 2014, 20 years after the Rwandan genocide against the Tutsi, marked a milestone for genocide survivors in Rwanda in which despite years of social, economic, and political marginalization increased efforts to secure their human rights were taking shape. These coalesced around a grassroots effort to envision, advocate for, and strive to implement a program of reparative justice in accordance with international human rights law. The effort began in a formal way in 2011 and has continued to expand since then1 but had been discussed in some form or another since shortly after the 1994 genocide against the Tutsi.2 The ‘Task Force to Remember Survivors 20’ was launched in early 2014 to advance commemoration of the Rwandan genocide against the Tutsi and coordinate the campaign for reparative justice and communicate 1  SURF ‘Right to Reparation for Survivors’ Discussion Paper, “Recommendations for Reparation for Survivors of the 1994 Genocide Against Tutsi”. October 2012. http://survivors-fund.org.uk/wp-content/uploads/2012/11/Right-to-reparationFinal.pdf “Interviews were carried out with survivors, Rwandan government officials, and representatives of national and international human rights organizations between 2008 and 2012” on the issue of reparations. Workshops and seminars were held as well including a conference on August 17, 2011, in Kigali and two workshops on March 20 and 21, also in Kigali. P. 4. 2  For a discussion of early efforts to advance reparative justice in Rwanda from 1995 to 2003, see Heidy Rombouts, Victim Organisations and the Politics of Reparations: A CaseStudy on Rwanda Intersentia (2004).

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the needs of genocide survivors. Its membership consisted of the following organizations which reflect the organized survivor community in Rwanda: • AVEGA3—Association of Widowed Survivors of the Rwandan Genocide. AVEGA is comprised of approximately 20,000 widows and 70,000 of their dependents, mainly orphans. • IBUKA—Umbrella organization coordinating the activities of survivor advocacy and service organizations. • AERG—National Student Association of Genocide Survivors. • GAERG—National Graduate Student Association of Genocide Survivors. • Kanyarwanda—Rwandan human rights organization; it manages the Centre for Rehabilitation of Victims of Torture and Repression, which provides services to genocide survivors, among others. • Barakabaho Foundation—provides homes for orphaned survivors of the genocide. • SURF Survivor’s Fund—the main international organization advocating for the human rights of genocide survivors and providing a range of social programs to meet their needs. SURF works closely with the aforementioned grassroots, community-based survivor advocacy/service provision NGOs. It is a major funder of their projects and a conduit for development aid from diverse development agencies, such as  Britain’s Department for International Development, among others. According to SURF the Task Force collectively represents over 300,000 survivors.4

3  For commentary on the distinctive needs of women regarding reparative justice see Ruth Rubio-Marin and Pablo de Greiff, “Women and Reparations” International Journal of Transitional Justice, (2007). See also Ruth Rubio-Marin, The Gender of Reparations: Unsettling Sexual Hierarchies while Redressing Human Rights Violations (Cambridge University Press 2011). See also Samuel Totten, ‘The Plight and Fate of Females During and Following the Rwandan Genocide,’ in Plight and Fate of Women During and Following Genocide, ed. Samuel Totten (Transaction Publishers 2012). 4  David Russell, ‘Twenty Years On’ (2014). http://survivors-fund.org.uk/news/twenty-years-on/

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In describing the Task Force, Jean Pierre Dusingizemungu, President of IBUKA, has said, “We are coming together as survivors’ organizations to raise awareness of the incredible challenges that remain for survivors today. Two decades after the genocide, for tens of thousands of genocide survivors in Rwanda, its consequences still very much endure.”5 The Task Force has outlined the needs of survivors including addressing “extreme poverty, terminal illness, disability, homelessness, unemployment and trauma. For survivors that have no family, and are now elderly, and without reparation, these effects are compounded.”6 One of the key aims of the Task Force is the creation of a trust fund that will contribute to the realization of a program of reparative justice—either through financial compensation, provision of social support services, or a combination of the two. A preliminary dialogue among various stakeholders under the auspices and direction of the International Organization of Migration (IOM),7 survivor organizations, the Rwandan government, and international governments and aid agencies resulted in a rough draft of a research paper synthesizing the results of an initial study envisioning a reparative justice program for Rwandan genocide survivors. It examines why a program of reparative justice for Rwandan genocide survivors is needed, what it could consist of, modes of implementation, and potential beneficiaries. The coalition of survivor organizations, with SURF as the coordinating agency, has released a response to this report. This process was initiated by a formal request from the UN International Criminal Tribunal for Rwanda in 2013 to study how a program of reparative justice for genocide survivors in Rwanda could be developed and implemented.8

5  http://sur vivors-fund.org.uk/wp-content/uploads/2011/08/SURF-AnnualReport-2013-14.pdf 24. 6  Ibid. 7  The IOM has undertaken similar studies in Colombia, the former Yugoslavia, and Sierra Leone and has particular expertise in this area. The report I refer to was tentatively titled, ‘Rwanda Reparations Assessment Study Realizing the Right to Reparations of the 1994 Genocide Against the Tutsi – Draft 01 for Circulation and Review.’ Peter Van der Auweraert, October, 2014. The report is available through SURF Survivor’s Fund. 8  Albert Gasake in ‘Pan-African Reparation Perspectives’ Special Bulletin on Reparation for Victims of International Crimes in Africa (2014). Sam Munderere, ‘Momentum’ (2014). http://survivors-fund.org.uk/news/who-we-are/momentum/

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Frustration has mounted among survivors for years that their right to reparative justice was being downplayed, sidelined, and ignored by a wide range of actors: the Rwandan government, global governments, the United Nations, bilateral and multilateral aid agencies, and development NGOs. For the past twenty years survivors and survivor organizations have continuously called on the government of Rwanda as well as the international community to provide adequate reparation to survivors. However, their calls remained mostly unheard, instead, emphasis was placed on the prosecution of the perpetrators before traditional ‘gacaca’ (community) courts and the ICTR.9

Indeed, survivors have essentially been asking the Rwandan government to ensure that its policies better reflect Rwanda’s very own Constitution, which states, “The State shall, within the limits of its capacity, take special measures for the welfare of survivors of genocide who were rendered destitute by the genocide committed in Rwanda from October 1st, 1990 to December 31st, 1994.”10 Clearly either the Rwandan government considers to define ‘the limits of its capacity’ differently from the understanding of survivors who expect that it can do more, and do better, or the executive and legislative branches of the Rwandan government are in contempt of Rwanda’s Constitution, and need to be held to account by Rwanda’s judiciary. But it is not only Rwanda’s Constitution upon which survivors base their case for reparative justice. A Compensation Law for genocide survivors was actually approved by Rwanda’s Council of Ministers and would have aided survivors considerably had it been implemented. But it was withdrawn by the Ministry of Justice in 2002 before it reached Parliament for debate. Thus a definition of who merits compensation and to what extent has never been legally defined in Rwanda, and, consequently, never implemented.11 As Jean-Paul Mugiraneza writes,  Ibid.  Constitution of Rwanda. http://www.ilo.org/wcmsp5/groups/public/%2D%2D-ed_protect/%2D%2Dprotrav/%2D%2D-ilo_aids/documents/legaldocument/wcms_127576.pdf Article 14, P 4. 11  David Russell, ‘Fund for Survivors’ (2013). http://survivors-fund.org.uk/news/survivors-rights/fund-for-survivors 9

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In theory, the Rwandan legal framework explicitly provides for genocide survivors to receive compensation. 50% of judgments made by the specialized chambers for prosecuting genocide suspects have awarded financial compensation to victims. However, although enforced on a criminal level they have yet to be enforced with regard to financial compensation. In some cases the Rwandan government itself has been mandated to pay indemnities to victims. But the Minister of Justice ordered the suspension of ‘all cases in which the Rwandan government is called upon to intervene.’ In 2001, a bill calling for the creation of a compensation fund was formulated, but it never materialized. We could interpret this in two ways: either as a demonstration of the practical difficulties of reparations, or as a political decision not to take that route.12

The reality is that it was and remains a political decision and it is at odds with the international human rights of Rwandan genocide survivors and the international legal obligations of the Rwandan state. The Rwandan government has not respected and enforced the rulings of traditional Rwandan courts and gacaca community-based courts ordering genocide perpetrators and in some cases the government itself to provide compensation and reparation to surviving victims. Given the Rwandan government’s well-documented development achievements in the areas of healthcare provision, its major advances in reducing poverty and improving food security and agricultural productivity, its increase in school provision for Rwandan children and youth, and its expansion of electricity and other essential infrastructure across the country including improved housing, it is highly unlikely that the government lacks the human and administrative resources to implement a program of reparative justice.13 Just in the area of health alone the Rwandan 12  Jean Paul Mugiraneza, ‘Rwanda Genocide: Why Compensation Would Help the Healing’ The Guardian March 4, 2014. https://www.theguardian.com/global-development-professionals-network/2014/ mar/04/rwanda-genocide-victims-compensation 13  On Rwanda’s healthcare provision system and its massive expansion, see Neil Emery, ‘Rwanda’s Historic Health Recovery: What the US Might Learn,’ The Atlantic Monthly, February 20, 2013. On Rwanda’s eyecare provision see, Verity Bowman, ‘Rwanda Becomes First Poor Country to Provide Eye Care for All’ The Guardian, January 31, 2018. h t t p s : / / w w w. t h e g u a r d i a n . c o m / g l o b a l - d e v e l o p m e n t / 2 0 1 8 / j a n / 3 1 / rwanda-becomes-first-poor-country-to-provide-eye-care-for-all

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government, in partnership with international organizations and aid agencies, has achieved stunning reductions in infant and maternal mortality On Rwanda’s dramatic healthcare improvements including doubling of life expectancy since 1995, lowering of premature mortality rates, and improvements in a range of health indicators see, Partners in Health Rwanda, https://www.pih.org/country/rwanda On Rwanda’s dramatic improvements in human development see, “Rwanda is the world’s most improved country in the UNDP Human Development Index.” http://infinitepotentials.org/wp-content/uploads/IPC-Datashots-2015-Week-10Rwanda-is-the-world%E2%80%99s-most-improved-countr y-in-the-UNDP-HumanDevelopment-Index.pdf Rwanda United Nations Development Assistance Plan UNDAP—2013–2018. http:// countryoffice.unfpa.org/rwanda/drive/RWANDA-UNDAP.PDF Millennium Development Goals: Rwanda Final Progress Report: 2013. March 31, 2015. h t t p : / / w w w. r w. u n d p . o r g / c o n t e n t / r w a n d a / e n / h o m e / p r e s s c e n t e r / a r t i cles/2015/03/31/millennium-development-goals-r wanda-final-progressreport-2013.html Regarding poverty in Rwanda, according to the US Agency for International Development, USAID, “between 2006 and 2011—just 5  years—poverty dropped markedly from 56.7% (2006) to 44.9% (2011) of the population, child mortality was reduced by 50%, and free public education was expanded to all students at both the primary and secondary levels.” http://www.usaid.gov/history-usaidrwanda On the subject of Rwanda’s efforts to improve food security see: Feike Sibjesma, ‘Wiping Out Hunger in Africa Could Cost 5 Billion Dollars What Are We Waiting For?’ The Guardian, July 15, 2019. h t t p s : / / w w w. t h e g u a r d i a n . c o m / g l o b a l - d e v e l o p m e n t / 2 0 1 9 / j u l / 1 5 / wiping-out-hunger-africa-could-cost-5bn-what-are-we-waiting-for On Rwanda’s conservation and environmental achievements see, Lawrence Caramel, ‘Rwanda Makes Saving Its Forests a National Priority’ The Guardian February 22, 2011. https://www.theguardian.com/world/2011/feb/22/rwanda-forests-national-priority Emile Clavel, ‘Think You Can’t Live Without Plastic Bags? Consider This: Rwanda Did It’ The Guardian February 15, 2014. h t t p s : / / w w w. t h e g u a r d i a n . c o m / c o m m e n t i s f r e e / 2 0 1 4 / f e b / 1 5 / rwanda-banned-plastic-bags-so-can-we AFP via the Guardian, ‘Black Rhinos Return to Rwanda Ten Years After Disappearance’ The Guardian, May 3, 2017. https://www.theguardian.com/world/2017/may/03/black-rhinos-return-to-rwanda10-years-after-disappearance For more on the Rwandan government’s lack of adequate fulfillment of survivor rights to reparative justice see, as noted earlier, Lars Waldorf, ‘Reparations for Victims of Genocide, War Crimes, and Crimes Against Humanity,’ ed. Carla Ferstman, Marian Goetz, and Alan Stephens (Leiden: Brill, 2009). 518–523.

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and morbidity, a doubling of life expectancy since 1995, and major reductions in transmission of malaria.14 While the Rwandan government has not acted in a sufficiently proactive and supportive way to address the unique needs and vulnerabilities of genocide survivors during the coronavirus crisis, its overall public health response in Rwanda has been of an exceptionally high quality. Although as of July 2020 it had received little attention in the media and development sector, Rwanda’s response to the COVID-19 coronavirus is a model of excellence in public health,  outstanding both in a comparative African context and globally. The Rwandan government has been very effective in reducing transmission of the disease and keeping its fatality rate extremely low. Its record in this regard is better than the United States and Canada, the UK, Australia, and most member states of the European Union, including Spain, Italy, the Netherlands, Sweden, France, and its former colonizers, Germany and Belgium. Given Rwanda’s extremely limited financial resources and nascent health sector this  is an extraordinary achievement. For this reason, while the European Union is accepting visitors from Rwanda in July of 2020 it will not accept travelers from the United States, where the American government’s response has been a catastrophic failure in utter contrast to that of the Rwandan government’s public health and public health communication competence, professionalism, coordination, execution, and scientific and medical  integrity. As of July 3, 2020 Rwanda has recorded three deaths from the coronavirus; the United States has recorded over 129,000 deaths.15 When there is a will in Rwanda, there is a way. Indeed the Rwandan state has a highly organized and efficient bureaucracy and service provision infrastructure. By 2015, Rwanda had created and implemented a system of basic universal health insurance available to all citizens, Mutelle de Sante. Rwanda achieved this, although a far wealthier country, the United States, still has not. 14  Agnes Binagwaho et  al., ‘Rwanda 20  Years On: Investing in Life’ The Lancet July 26, 2014. https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(14)60574-2/ fulltext Partners in Health Rwanda, https://www.pih.org/country/rwanda 15  Johns Hopkins Coronavirus Resource Center, https://www.coronavirus.jhu/edu/ map/htm and Matina Stevis-Gridneff, ‘E.U. Formalizes Reopening, Barring Travelers from US,’ The New York Times, June 30, 2020.

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This is a key example of the Rwandan government’s strong capacity for delivering social services. Its achievements in nature conservation at Akagera National Park and Rwanda’s other national parks and nature reserves and in expansion of educational opportunity to primary and secondary school age children are similarly dramatic and exemplary— particularly given the enormous deficit in human and financial resources and infrastructure resulting from the genocide.16 Survivors have also been frustrated for many years with the way in which their rights and needs have been marginalized by many development and humanitarian aid NGOs as well as UN agencies in Rwanda. There have been important and commendable exceptions among some NGOs, such as Send-A-Cow, Catholic Relief Services, and CAFOD (the Catholic Agency for Overseas Development), which historically deliberately included genocide survivors in their projects and have shown awareness of and sensitivity to their needs. But they are outliers and very exceptional; in no way do they reflect the policies and practices of most development NGOs working in Rwanda and in some respects they could still do more for survivors to better reflect the ongoing needs of survivors and their unfulfilled human rights. CAFOD is the only major development agency that has worked in Rwanda whose programs explicitly have historically given priority to genocide survivors, and it should be commended for this exceptional commitment. (It no longer works in Rwanda.) CARE supported projects with genocide survivors, such as the Nkunabana Initiative for Psychosocial Support for orphans and the Community Support and Mentoring for Orphans and Vulnerable Children (COSMO) program in the past as did Christian Aid, which funded Ibuka, an umbrella organization of Rwandan NGOs that focus on the needs of genocide survivors. But these programming commitments stopped over a decade ago, and they were never major and sustained programming commitments.17 They have not formed part of a dependable, substantial, coordinated program of explicit support for genocide survivors in recognition of their right to reparative justice. In its 2014 ‘Oxfam in Rwanda’ paper Oxfam states that its aim is “to empower the poorest and most vulnerable by enabling them to be part of the decisions which affect their lives, for sustainable growth and

 Ibid., supra note 11 in this chapter.  See Schimmel, Development in Practice supra note 21 in Chap. 1.

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development.”18 It explains that Oxfam networks with civil society, the private sector, and the government to advance knowledge and skills and support these development goals.19 However, beyond this boiler-plate development rhetoric which typifies development NGOs in Rwanda, there is no evidence in its development programming that Oxfam is explicitly advancing IHRL on reparative justice for genocide survivors.20 Doing so would entail ensuring that the UN General Assembly Resolutions and the UN Basic Principles on Remedy and Reparations inform Oxfam’s programming in Rwanda.21 Genocide survivors and their grassroots community-­based organizations should have a role in impacting the content and delivery of Oxfam NGO programming in Rwanda and Oxfam needs to provide them with opportunities to communicate their needs and participate in program development and implementation. CARE has a program in Rwanda dedicated to ‘Governance, Advocacy and Civil Society Strengthening.’ Though it purportedly addresses the most disadvantaged Rwandans, it does not directly address the right to reparative justice of genocide survivors. The program illustrates, however, how NGOs in Rwanda can channel their programming more effectively to advance reparative justice. It shows how NGOs have power and influence how development and transitional justice programs are created and whose human rights they respect and fulfill. “CARE Rwanda’s Governance, Civil Society and Advocacy strategy strives to facilitate broad participation in policy development and ensure that government policies and practices are pro-poor.”22 But being pro-poor necessitates advancing the rights and welfare of genocide survivors, and recognizing and responding to their distinctive needs, experiences, and vulnerabilities. Like Oxfam and CARE, World Vision—which we discussed earlier acts as an agent of the Rwandan government in various policy areas, including 18   Oxfam in Rwanda, May 2014. http://www.oxfam.org.uk/~/media/Files/OGB/ What%20we%20do/Countries%20we%20work%20in/New%20brand%20PDFs/rwandaNEW.ashx 19  Ibid. 20  Ibid. 21  The same would apply to other NGOs working in Rwanda. 22  CARE Rwanda Country Snapshot Sheet. http://www.care.org/sites/default/files/documents/rwanda-fact-sheet-2011.pdf See also Paul Gready, Fighting for Human Rights, (Routledge 2004) for an explanation for how NGOS are increasingly subcontracting the responsibilities, policies, and programs of government. 116

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water provision—also neglects genocide survivors in its Rwandan programs and does not address their right to reparative justice. It does however ask readers of its website to pray for them and notes uncritically and with no acknowledgment of survivor perspectives on ‘peace and reconciliation’ programs—which are often critical—its extensive investment in advancing ‘peace and reconciliation.’ World Vision conceptualizes ‘peace and reconciliation’ largely as emotional and interpersonal concepts, unrelated to structural and systemic injustices which genocide survivors face and which reflect their lack of access to reparative justice. Other large international NGOs, such as Save the Children, reflect the same lack of respect for and concern with reparative justice for genocide survivors. Notably, Save the Children’s ‘Theory of Change’23 neglects any mention of the impact of the genocide on Save the Children’s programs in Rwanda, and the rights and needs of genocide survivors, their families, and children. Development NGOs need to both correct their current post-genocide human rights failures vis-à-vis genocide survivors and advance their social and moral responsibilities as NGOs and take an intentional and proactive approach to assessing their own roles in the marginalization and discrimination Tutsis in Rwanda faced in the decades in which development NGOs were functioning in Rwanda prior to the 1994 genocide against the Tutsi in which many of their programs reflected the racism of the Hutu supremacist regime ruling the country. Once they have honestly and objectively assessed this—and ideally with the incorporation of independent scholars—they need to make their own efforts at repair for the human rights damage caused to Tutsis by their immoral and possibly illegal collaboration with a racist regime, as discussed earlier and as  is comprehensively illustrated and analyzed in Peter Uvin’s book, Aiding Violence: The Development Enterprise in Rwanda.24 23  ‘Theory of Change in Rwanda’ (Save the Children), https://rwanda.savethechildren. net/what-we-do/theory-change-rwanda, accessed 15 March 2019; also their files on their programming in Rwanda at the same web address; Save the Children, ‘Rwanda Country Office Annual Report 2017’ (Save the Children, Kigali), https://rwanda.savethechildren. net/sites/rwanda.savethechildren.net/files/library/Rwanda%20CO%20Annual%20 Report2017_.pdf, accessed 22 March 2019; Save the Children, ‘Rising to the Challenge: Save the Children Annual Report 2016’ (Save the Children International, London) https:// www.savethechildren.net/sites/default/files/libraries/Save%20the%20Children%20 Annual%20Report%202016.pdf, accessed 22 March 2019. 24  Uvin ibid., supra note 11 in Chap. 1.

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Uvin notes that it was only two years before the genocide that development NGOs in Rwanda bothered to address anti-Tutsi racism in the country, which they had been complicit with for years up until that point because in order to gain unfettered permission to work in the country they chose to acquiesce to and abide by the racist rule of the Hutu supremacist regime rather than to challenge it. Uvin characterizes these last ditch efforts just prior to the genocide as fundamentally desultory, insufficient, and indicative of the depth of the development sector’s disregard for the terrible price the Tutsi population was paying and would pay for the Faustian pact development NGOs made with the Rwandan government for the freedom to operate in the country and pursue a prejudicial and discriminatory national development plan which systematically excluded vast sections of Rwanda’s Tutsi population. It was only at the very end, in 1992–1993, that part of the aid system tentatively enlarged its mandate to include political factors, human rights, racism, and democracy on its agenda. … In 1993, a few Belgian NGOs, with funding from the Belgian bilateral agency, created human rights programs, while the Belgian NGO community co-financed the major human rights NGO study of 1993. Oxfam funded a set of reconciliation workshops with church organs. … The US and Swiss bilateral aid agencies set aside money for democracy and human rights. This was too little too late, though, and had little or no impact on the forces of violence and radicalism.25

Today, tragically, as in the early 1990s, the development aid sector in Rwanda continues to discriminate against, neglect, and marginalize Tutsis—but this time, it is a specific subset of the Tutsi population against which they practice this marginalization, the genocide survivors. This attempt to promote peaceful coexistence in Rwanda in the early 1990s was a fig leaf for the discriminatory role the development sector played as accomplices to the racist anti-Tutsi ideology of the Hutu regime. As Uvin writes, incorporating the findings of other scholars as well, From the 1970s onwards, in line with the great capacity of the Habyarimana regime to play the development game, the policy increasingly became to allow NGOs, all of them funded from abroad, to take up part of the slack, within tight political constraints, while taking much of the credit through a discourse of self-help. Hence, NGOs were allowed to flourish, provided  Uvin ibid., supra note 11 in Chap. 1, 176.

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they were willing to ‘… program and coordinate … development actions within the framework of the national development priorities’ (Goodring 1985, 13) and abstain from politics. All of this forced most NGOs into defining themselves along the restrictive lines of the development ideology to which the government, the donors, and in all likelihood, most of their personnel adhered.26

This was quantifiable and readily acknowledged. “In a survey of ninety-­ one NGOs in the late 1980s, 73 percent said they had close relationships with government ministries, 71 percent with communal authorities, 56 percent with prefectoral authorities.”27 The government and the international NGO sector were inextricably bound. Consequently, international NGOs in Rwanda—many of whom had been operating in Rwanda for decades prior to the genocide—have a huge moral debt of remorse, apology and repentance, and repair toward Rwanda’s genocide survivors. Uvin summarizes this NGO complicity with Rwandan government human rights violations in the years leading up to 1994 in a restrained but morally damning conclusion which implicates some of the international development NGOs discussed in this book such as Oxfam and CARE. (Save the Children and World Vision did not work in Rwanda prior to 1994.) With a few courageous exceptions in the 1990s, foreign NGOs largely took the same position as the official aid system. … Like elsewhere, international NGOs adhered to the common view that ‘development and human rights work constitute two distinct areas, where development is devoted to the promotion of economic growth and the satisfaction of basic needs, while human rights work exposes abuses of power.’ (Tomasevski, 1989, 113–114)28

Oxfam itself, just two years after the genocide, acknowledged the role of discriminatory national development policies as a major form of structural violence contributing to the physical violence of massacres prior to the genocide and to the genocide itself. “Poverty, the politics of exclusion, the denial of basic rights and economic exclusion are all facets of a problem that has frequently erupted into bloody conflict, culminating most recently in Rwanda’s genocide and Burundi’s continuing crisis.”29 But Oxfam did  Uvin ibid., supra note 11 in Chap. 1, 176.  Ibid., 177. 28  Ibid., 178. 29  Ibid., 4. Uvin quoting an Oxfam report from 1996. 26 27

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not acknowledge its own role in contributing to this very structural violence which was a significant precipitating factor in enabling the genocide against the Tutsi. Beyond the responsibilities of development NGOs to empower survivors and to respect, protect, and fulfill the human rights of genocide survivors, what is the current Rwandan government doing to respect, protect, and fulfill their human rights and what has it done historically? FARG, the Government of Rwanda Assistance Fund for Survivors, is the government agency created in 1998 in Rwanda mandated with survivor support in the areas of education, health services, housing, and other essential needs. Every year since its creation, the Rwandan government provides 5% of its budget for the FARG.30 These programs are provided as social services provision, not as a form of reparative justice reflecting international human rights law. Furthermore, as we will soon see, they are incomplete and inadequate in both scale and scope. Unfortunately, the 5% figure was and remains arbitrary. It was insufficient from the beginning and remains so. Survivors were not and are not prioritized in the Rwandan national budget in accordance with their level of vulnerability and disadvantage and their rights under international human rights law. Further, due to inefficiency, mismanagement, underspending, theft, and corruption much of this 5% never actually reached and still does not reach survivors in the first place, so the figure is misleading. Development NGOs working in Rwanda have contributed very little to FARG’s work—despite the fact that they were and are extremely well placed to be both implementing partners to FARG and providing supplementary funding and service provision for the well-documented gaps in FARG’s programs for survivors. This seems to be a function both of Rwandan government priorities that have limited NGO engagement with survivors, and the willingness of international NGOs to marginalize genocide survivors in their provisions and programs. While it is reasonable to critique this percentage of the annual budget devoted to FARG as being clearly inadequate at addressing the rights and needs of survivors in a way that was foreseeable and thus not an unintentional error but a reflection of lack of adequate support for genocide survivors, it would be unfair to single out the Rwandan government for critique given the immense challenges it faced and faces and its 30  For critique of the FARG see Waldorf in “Reparations for Victims of Genocide,” ibid., supra note 13 in this chapter.

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dependency on foreign aid due to the country’s poverty. Moreover, it has had to invest a great deal of resources in ensuring the physical security of Rwanda’s citizens and thus whatever weaknesses can be attributed to it vis-à-vis survivors must be placed  in the context of a daunting post-­ genocide transition. This  needs to be taken into account and acknowledged, although it  does not detract from the validity of the empirically based argument that the Rwandan government needs to show far greater concern for survivors, respect for their human rights, and dedication to their fulfillment than it has until now. That development NGOs have largely forsaken genocide survivors in Rwanda is not an accident or an oversight—they are well aware of their profound vulnerability and disadvantage—rather, it reflects indifference to advancing the rights and welfare of Rwandan genocide survivors and it is both morally and legally indefensible. It undermines the very principles of humanitarianism and development, advancement of women’s rights, and care for the most vulnerable and disadvantaged which are the purported core values of the major international NGOs working in Rwanda that we have already discussed, that is CARE, Oxfam, World Vision, Save the Children, and United Nations agencies. It is helpful to consider both the Rwandan government’s definition of social protection and the stated mission of its social protection sector, which includes FARG. It is in relation to this definition and these aims— alongside those of international human rights laws pertaining particularly to social and economic rights—that FARG’s work and the rights and welfare of genocide survivors should be assessed. The Rwandan updated 2017 Social Protection Policy defines social protection as follows: All public and private insurance and income transfer schemes as well as social care services that, together, ensure that all citizens, especially the most vulnerable and marginalized, have income security, a dignified standard of living, are protected against life-cycle and livelihood risks and that the rights of all citizens are upheld.31 31  UNICEF Social Protection Budget Brief, ‘Investing in Inclusiveness for Rwanda 2018/2019’. https://www.unicef.org/esaro/UNICEF-Rwanda-2018-Social-Protection-BudgetBrief.pdf Ministry of Local Government, National Social Protection Strategy, 2011, Kigali, Rwanda also available at www.MINALOC.gov.rw/fileadmin/documents/MINALOC_Documents/ National_Social_Protection_Strategy.PDF

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It defines the mission of the government’s social protection sector as ensuring that, All Rwandan citizens have a dignified standard of living, are protected from social exclusion, neglect and abuse, and are supported to access employment and other livelihood opportunities.32

We will now turn to discuss how FARG fares at realizing these social protection aims. FARG defines itself in English as The Fund for Support and Assistance to the Neediest Survivors of the Genocide Against the Tutsi and states its programs as being directed to the five following areas of social service provision: education, health, human rehabilitation, shelter, and income generating activities. One of the primary structural problems of the FARG is that is disburses funds to district (local) governments. This creates many opportunities for corruption, graft, and theft, as accountability has been and is weak once the funds leave the hands of FARG.33 FARG and the Rwandan government have been aware of this for many years. But they have not taken substantive action to address it. This passivity in the face of mismanagement, waste, graft, and corruption raises red flags because the Rwandan government normally has a very low tolerance for corruption and has put in place numerous mechanisms to root it out and punish those individuals and institutions engaged in it. It has a commendable record in Africa of relatively low corruption, particularly well compared with its East African neighbors such as Uganda, Tanzania, and Burundi although it still has extensive opportunity for improvement. Given the context of its history of genocide and total governmental, social, legal, and political collapse in 1994, its relatively low levels of corruption are an outstanding achievement.34  Ibid.  Innocent Kayitare, the vice-president of the parliamentary Committee on Unity, Human Rights, and the Fight Against Genocide, said that “he was suspicious about Kamonyi District which took 30 million Rwandan francs and Nyarugenge with 23 million Rwandan francs, but the money wasn’t deposited in any bank account but rather, according to district officials, immediately disbursed to survivors, yet without any proper reporting.” David Russell, ‘FARG’ (2016). https://survivors-fund.org.uk/news/farg-2/ 34  Julius Bizimungu, ‘Rwanda Improves in Global Corruption Perception Index’ Rwanda New Times, January 30, 2019. https://www.newtimes.co.rw/news/rwanda-improves-global-anti-corruption-index 32 33

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FARG has also operated in a very slow way with a backlog of cases of thousands often lasting for years at a time. In 2016 it was only beginning to address housing shortages that were known already in the years 2010–2012. A 2012 study concluded that more than 12,600 houses needed repairs and over 3000 were in a critical state.35 In 2016, a survey conducted by the CNLG Rwandan government agency revealed that, “about 9,000 genocide survivors who completed secondary school are still waiting for support to go to university, while 2,105 student survivors who dropped out of primary school and 3,582 who didn’t complete secondary school, need special support.”36 Although Rwandan genocide survivors have advanced considerably since the 1994 genocide, the latest data illustrates that large numbers are still suffering from wide-scale human rights violations which stem from the vulnerability and disadvantage caused to them by the genocide.37 The

 https://survivors-fund.org.uk/news/cnlg-survey/  Ibid. 37  See SURF Annual Report 2017/18; SURF Annual Report 2016/17; SURF Annual Report 2015/16; SURF Annual Report 2013/14; SURF Annual Report 2012/13; SURF Annual Report 2011/12; SURF Annual Report 2010; SURF Annual Report 2009, https://survivors-fund.org.uk/news/kwibuka25-initiativeto-recoverassets/ ; REDRESS, ‘Right to Reparation for Survivors: Recommendations for Reparation for Survivors of the 1994 Genocide Against Tutsi’ (Discussion Paper, October 2012) https://redress.org/wpcontent/uploads/2018/01/Oct-12-Right-to-Reparation-for-Survivors.pdf, accessed 22 March 2019. https://www.survivors-fund.org.uk/about/our-reports/annual-reports/ As stated earlier, the general situation remains substantially similar to that in 2008, with inadequate improvement in survivor access to housing, education, poverty reduction programs, and healthcare provision that addresses their unique needs, particularly in the areas of mental health and trauma support services where the failures are systemic, extensive, profound, and acute and they receive very little attention from FARG and the Rwandan government. There have been some achievements in scholarship provision for schooling—though much less so for university studies and still less so for vocational training and capacity building for income generation to reduce poverty. There has also been some improvement in FARG’s provision of houses for vulnerable genocide survivors, but this is far from complete and in the spring of 2019 FARG acknowledged that more than 35 billion Rwandan francs were needed to construct several thousand homes for genocide survivors who still lack adequate safe housing, 25 years after the genocide. By any reasonable standard—whether that of human rights, principles of humanitarianism, or development—FARG’s record is very weak and utterly at odds with its stated mission and legal obligations, both national and international. 35 36

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gap between the services provided to survivors and their needs is s­ taggering. As the 2013 Annual Report from SURF Survivor’s Fund states This year, the Government of Rwanda Assistance Fund for Survivors has been able to increase the number of young survivors it supports into university to nearly 5,000. However, there are a further 35,000 young survivors due to graduate from secondary school in the next three years; only a fraction will receive such support from FARG. With many of these young survivors caring for other orphans, the likelihood of them ever being able to secure employment to support their surrogate families without a university education becomes ever more remote as each year passes.38

Enabling merely one in six genocide survivors to study at university cannot be considered a success by any means, as it excluded over 80% of the survivor population in the need of scholarship assistance. The gaps between need and provision are large not only with regard to funding university education; they exist for orphans who are responsible for supporting surviving family members but do not have the means to do so, and thus fall into a poverty trap. Over 50% of the 43,000 members of AERG [undergraduate student association of genocide survivors] were orphaned as a result of the genocide, and are living in orphan-headed households. They are responsible for caring and supporting their younger siblings, which exerts greater pressure upon them to become wage earners. As such, many of these younger survivors now face grave challenges in securing employment after completing secondary school, and even university education. For many, formal education can be of low quality, with limited opportunities for skills development. Therefore, young people are largely unready for the formal labour market. Existing programmes are largely inaccessible or ineffective, as they do not accommodate for the multifaceted needs of young survivors.39

In April of 2016 Jean de Dieu Mirindi, the National Coordinator of AERG—Student Genocide Survivors Association, said that almost 9000 secondary school students were still awaiting scholarships to study at university. Mirindi stated that 2105 dropped out of primary school while  SURF 2013 Annual Report. http://survivors-fund.org.uk/annual-reports/how-surf-is-run-2/ 39  SURF 2013 Annual Report, page 4. 38

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3582 didn’t complete secondary school.40 These numbers reflect very poorly on the FARG. There have been some improvements in the last two years, with the latest data supplied by FARG indicating that by the first quarter of 2018/2019 over 882 students were enrolled in secondary schools and 11,923  in university.41 There are still many survivors, however, who lack funds to enroll in university. For several decades FARG failed to advance in any significant way substantive technical-vocational training programs for survivors to enable income generation. This should have been a primary concern of FARG from its inception, but FARG has only begun to address it programmatically more recently during the last five years, roughly. As David Russell, the former director of SURF, Survivor’s Fund, writes, The issue of youth unemployment is particularly acute for young survivors (and second-generation survivors) due to the lack of contacts and collateral that they can access. Despite many survivors having had the opportunity to complete their secondary education through support from FARG, many do not have the skills to secure employment. Despite the focus on transitioning Rwanda from an agriculture-based to a knowledge-based economy, many of this group—as well as older widows—remain excluded from the job market and continue to rely on agriculture for their livelihoods.42

While FARG has announced support for small business development for survivors—such as a brick and tile furnace and a multi-purpose hall whose rental can generate income—and that is certainly a positive step—it has largely been too little too late. As has been the unfortunate hallmark of FARG, issues of quality of provision, accountability, and achieving benchmarks of success have been wide off the mark. Albert Gasake writes, Since its establishment, the Government has injected into FARG over 200 billion Rfrw at least in paper but where is the impact? Objectively speaking, very little impact if any at least as long as income generation and self-reliance  https://survivors-fund.org.uk/news/farg-2/   Michel Nkurunziza, ‘Kwibuka 25: Farg Restores Hope For Young Genocide Survivors’ (2019). h t t p s : / / w w w. n e w t i m e s . c o . r w / n e w s / k w i b u k a 2 5 - f a r g - r e s t o r e s - h o p e young-genocide-survivors 42  David Russell, ‘Economy’ (2018). https://survivors-fund.org.uk/news/economy/ 40 41

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of survivors is concerned. 21 years since the genocide survivors are getting poorer. Many survivors are still without a roof over their heads. Others especially the elderly are dying day by day due to genocide consequences, HIV/ AIDS positive women raped during the genocide are dying due to lack of treatment and proper diet, many young survivors who dropped out of secondary schools in order to cater for their young siblings are unable to resume their studies. … Programmes such as the income generation projects are technically great if they are well designed and monitored. But in light of FARG’s weaknesses such programmes should be implemented by a separate institution such as micro-finances [microfinance organizations] that have necessary expertise in project management, monitoring and evaluation for low income communities.43

These criticisms are not outliers; they reflect mainstream concern among survivors about the efficacy of FARG. As a recent article from Hirondelle Foundation in the spring of 2019 states, The Fund has also faced many criticisms: embezzlement, houses built in a shoddy way to last only 5 to 10 years, corruption in the selection of beneficiaries, even allowing former militiamen to benefit. In 2010, following an assessment, more than 17,000 cases of malpractice were detected and 47 dishonest entrepreneurs identified and brought to justice.44

Survivors continue to suffer from this neglect. FARG continues to lack sufficient regulatory oversight to limit and punish corruption and to maintain clear and high standards of accountability and efficacy. Survivors fundamentally reject the notion that FARG replaces their right to reparative justice—a right they do not and will not relinquish, however much antagonism toward its respect and fulfillment they face. As Emmanuel Ruvugiro writes, the challenges are not limited to the Fund’s operations. Already in 2009, the genocide survivors’ organization Ibuka (meaning, ‘remember in the Rwanda language’) denounced the fact that, instead of compensating victims, the State opted for the creation of the FARG for which “even the victims are condemned to pay for their own reparation,” according to Denis Bikesha, 43  Albert Gasake, ‘Blog Post at Justice-Survivors.com’ incorporating new from Rwanda New Times, (2015) https://justice-survivors.com/2015/05/08/rwanda-genocide-survivorsgetting-poorer-as-farg-changes-strategy/ 44  Ibid.

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law professor at the University of Rwanda. ‘Reparation for victims must be understood as a right and not a favour,’ he says.

More recently, in December of 2018 in Rusizi, survivors challenged the state for failing to assist genocide survivors. “We want our rights, not favours,” said Laurent Ndayambaje, local president of Ibuka. Although the FARG does good things for “our widows, orphans and all the vulnerable,” he says, its services are perceived as “a favour to ask for and a favour to grant.”45

Human rights are—of course—not favors. And the fact that survivors feel humiliated in this way—made to beg—illustrates not just a failure to respect their human rights but also a failure of sensitivity, decency, care, compassion, and fundamental humanity in the face of their immense suffering, loss, and injustice. It is a violation of their dignity.  The director of FARG himself, Theophile Ruberangeyo, has acknowledged the tremendous inadequacies of FARG’s programming stating that FARG’s programs are “a drop in an ocean of problems” because the needs of survivors are so much greater than what FARG provides. What is striking is that even though the director of FARG himself acknowledges this neither the Rwandan government nor NGOs working in Rwanda have taken substantive and adequate measures to address this failure of policy, practice, and respect and fulfillment of human rights.46 Ironically, despite their general resistance to doing substantive community development for and with genocide survivors in deference to Rwandan government policy that wants international NGOs not to explicitly address survivor disadvantage and marginalization but to focus instead  only on general national development, NGOs working in Rwanda could do a far better job than FARG in developing and implementing these programs. Unfortunately, for reasons that are likely political and financial, FARG monopolizes survivor programming provision instead of contracting out to effective NGOs—both domestic survivor-led ones such as Avega, Ibuka, Aerg, and SURF and international ones such as Oxfam and CARE  Ibid.  Emmanuel Sehene Ruvugiro, ‘Rwanda Reparations Fund Breaks Ground But Is Still Not Enough Say Victims’ (2019) Fondation Hirondelle. https://www.justiceinfo.net/en/reparations/40610-rwandan-reparations-fund-breaksground-but-is-still-not-enough-say-victims.html 45 46

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that actually have the human resources, capacity, competence, training, and skills to provide these programs which FARG clearly lacks and which it has lacked since its creation. The end result is that FARG is negligent in its programming, neglectful of survivors, dysfunctional in its conduct, antagonistic toward those in government and Parliament who seek to hold it to high standards of conduct and effectiveness, and unaccountable to the individuals and communities it is supposed to serve and wasteful of limited and precious Rwandan national resources. In short, it is not fit for purpose and never has been. While it first and foremost fails survivors, it also fails Rwandans as a whole, and is ultimately to all their detriment even though it is survivors who suffer most from its dysfunction. FARG takes a very narrow view of education; focusing on formal education for a small sub-section of young adult survivors, but neglecting to take into account that widows and older survivors who have lost land and property and are impoverished need to be able to access job training and skills development in order to improve themselves economically and increase their capacity for self-reliance. Because in Rwanda the male was and remains the traditional head of household responsible for earning an income and managing finances, widows are particularly bereft of a means by which to support themselves. Heidi Rombouts states that, It is regrettable that the FARG education program does not provide training or education of adult women, even though increasing the professional skills of women in certain areas (for example, in the field of off-farm activities) could clearly strengthen their economic position. Including this type of training in the FARG educational program would make it more sensitive to the needs of many adult women—who are too old to go to secondary school—and widows.47

In this regard the FARG is exclusionary and in effect discriminates against survivors on the basis of both gender and age, which also potentially places FARG in violation of Rwanda’s Constitution. Instead, it has been left to AVEGA to offer such skills training programs with FARG offering very few of them to a small number of survivors and only in the last few years of 2017–2020. AVEGA has done so, and with substantial success, developing a multi-module program of training widows to develop marketable skills, build small businesses, and provide access to capital through  Rombouts, supra note 2 in Chap. 5 at 223–224.

47

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microcredit. In addition to the positive economic impacts of these projects they also foster enhanced self-esteem, decrease social isolation, and enable survivors to support one another in ways that reduce their vulnerability. These psychosocial outcomes are no less valuable and significant than the increases in income that result. However, AVEGA lacks the resources to extend these projects nationally and their funding is constrained by limited financial support and a lack of long-term financial commitment.48 Survivor testimonies of the positive impact of these programs provide a dramatic and positive contrast with the description survivors provided of their lives prior to the AVEGA program. Here are the testimonies of several survivors, who all share similar testimony. • “Before we couldn’t plan for the future: if I had something to eat this evening, it didn’t matter what I would eat tomorrow. We only managed to survive, many of us were traumatized, [...] we were really hopeless.” • “Before […] we used to live in isolation from others; we had no plans for the future. We used to cultivate enough so that we could survive but it was difficult to have decent clothes, a balanced meal, sugar, salt.”

• “We were hopeless because we had lost our families and everything else we had, like our houses. We didn’t interact with others...we were kind of traumatized.”

• “We were hopeless and we didn’t have plans for the future. Everyone was isolated in her own place and we didn’t have a social life at all.” • “[...] some were hopeless and isolated from everyone. When you visited them, they could cry, because they were thinking a lot to what happened during the genocide and they were traumatized. They live

48  Lorenzo Picco, Masters Thesis. “Transforming Lives: An Analysis of the Impact of AVEGA’s IGA Training Programme on Empowering Widows of the Genocide and Promoting Gender Equality in Rwanda’s Eastern Region.” http://survivors-fund.org.uk/wp-content/uploads/2014/01/Lorenzo-Picco-FinalDissertation.pdf, p. 142

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in very old houses which were built very badly after the genocide and did not have proper clothes to wear to go out. It was horrible.”49

Social isolation, difficulties in finding appropriate shelter, lack of support, inability to make plans for the future, and feelings of powerlessness, hopelessness, and destitution are a sampling of issues that affected these women, and prevented them from living the kind of lives they wanted to live.50 Furthermore, a large percentage of widows suffered severe sexual violence and rape with profoundly damaging consequences to their health. Special programs directed toward female genocide survivors to provide for their health needs with regard to HIV—because so many were deliberately infected with the disease by genocidaires rapists—have mostly concluded and now female survivors who are HIV positive access health services through clinics that serve the Rwandan population as a whole. However, they are still in need of extensive counseling and mental health services to address the effects of sexual violence. While AVEGA offers these services to some survivors, they lack the funding to offer it to all survivors who need it, and they reach a miniscule percentage of the total survivor population who have an international human right to such services. Widowed genocide survivors have received paltry assistance from the FARG, yet they remain among the most disadvantaged members of the survivor community. AVEGA issued a report entitled, ‘Current State of Care for Elderly Widowed Genocide Survivors in Rwanda’ based on a national survey conducted in 2013 which found gross lapses in service provision of widowed genocide survivors, extremely high rates of poverty, and ill health and social isolation. It called for the adoption of a “multi-­ disciplinary care strategy. This will enable the provision of care for elderly survivors in their own homes, independent living communities, or care homes, depending on the level of care required by the individual.”51 The survey targeted a group of 1462 widowed survivors. Around 60% have no living relatives. Over 65% had some difficulty or needed help with the most basic physical tasks of daily living, such as walking 100 meters. 89% reported health problems and chronic illness.52 Ninety per cent have  Ibid.  Ibid. 51  AVEGA Report, “Current State of Care for Elderly Widowed Genocide Survivors.” Available from SURF Survivor’s Fund. Not publicly accessible online. 52  For more on the health situation of female genocide survivors see, Maggie Zraly et al., “Primary Mental Health Care for Survivors of Collective Sexual Violence in Rwanda,” 49 50

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never attended school and suffer from illiteracy. Nearly 75% of respondents are in need of direct support and a regular carer. Sixty per cent stated that their houses needed rehabilitation. 98.2% were either very unsatisfied or unsatisfied with their lives. Mental health has been particularly neglected by the FARG. Given the extent of psychological trauma, depression, stress disorders, anxiety, loneliness, and social isolation in the survivor community, this has been a failure to provide the most essential of needs. According to Heidi Rombouts, “psychological assistance [for widows of the genocide and women who were victims of sexual violence during the genocide] has been almost non-­ existent in post-genocide Rwanda.”53 It is only the interventions of survivor NGOs—primarily AVEGA and SURF—since 2006, that has enabled basic mental health provision for genocide survivors, and yet they only reach a fraction of survivors in need of such support services. There is a higher incidence of poverty among older widowed survivors, than in the general population—87% of respondents had monthly household incomes below $14. This contributes to stress and mental health problems. The results of the study also demonstrate that elderly, widowed survivors of the Genocide are an especially vulnerable group whose needs are undergoing change, and that these needs are not being addressed. Governmental and non-governmental support to elderly genocide widows is largely uncoordinated. Local government tends to delegate responsibility for elderly survivors to survivor organizations, which do not have the funding or capacity to provide the support needed.54 Young survivors suffer from substantial mental health problems as well. In December of 2012 AERG published a research report on the impact of trauma on survivors of the genocide who are currently students. The research was based on interviews with 213 members of AERG across the country. 88% of respondents had symptoms of PTSD and 77% had ­symptoms of depression. The research determined that there is a strong correlation between legal and homeless problems on trauma. The principal recommendation of the report concluded that to resolve such cases of trauma amongst Global Public Health: An International Journal for Research, Policy and Practice, 6 (2011). See also Maggie Zraly, “Motherhood and Resilience Among Rwandan Genocide-Rape Survivor,” Ethos, 41 (2013) and Maggie Zraly et al., “Don’t Let the Suffering Make You Fade Away: An Ethnographic Study of Resilience Among Survivors of Genocide-Rape in Southern Rwanda” Social Science and Medicine 70 (2010). 53  Rombouts, supra note 2 in Chap. 5, p 209. 54  AVEGA report, supra note 51 in this chapter.

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student survivors, it is critical to address its root causes. By ensuring that student survivors have secure shelter, and have access to support and aid to resolve outstanding legal cases, it will strengthen the mental health of this vulnerable, and often marginalized, population.55

It is not only the studies of survivor organizations that reveal this troubling data; the research conducted by the Rwandan government itself confirms these findings. The National Commission for the Fight Against Genocide (CNLG)—a government agency released a report in 2013: “The research draws on interviews with 122 orphaned youth survivors from each district in Rwanda as well as focus groups with organizations supporting survivors.” The results of the research revealed that psychological and social problems continue to affect youth survivors 19 years on. This is often related to continued traumatic memories and reminders of the genocide, social isolation and lack of family. They face complex issues connected to rural isolation, property, compensation, and lack of educational resources.56

Consequently, inadequacies of the FARG’s programs undermine the rights, health, and welfare of genocide survivors of all ages, young and old. As recently as late May of 2019, genocide survivors have been struggling to acquire medicines they need for their health, another burden being placed upon them. Some are incurring extra costs as they try to buy medicines that Rwanda’s various national health insurance schemes no longer provide them because their health insurance is provided by FARG which is updating and changing its insurance program, but has left genocide survivors vulnerable and with inadequate coverage for medicines while in the process of so doing.57 Lapses in coverage of many months at a time—over six months for some genocide survivors—are totally

 David Russell, ‘AERG Research’ (2012). http://survivors-fund.org/news/aerg-research/ 56  David Russell, ‘Challenges’ (2013). http://survivors-fund.org.uk/news/who-we-are/challenges-4 57  Arafat Mugabo, Rwanda Today (2019) ‘Beneficiaries of Genocide Assistance Fund Lack Medicine’ http:// r w a n d a t o d a y. a f r i c a / n e w s / B e n e f i c i a r i e s - o f - g e n o c i d e - a s s i s t a n c e - f u n d - l a c k medicine/4383214-5129482-format-xhtml-11ithet/index.html 55

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unacceptable and put the health and welfare of survivors at risk.58 This example illustrates some of the structural problems and lack of reliability in FARG’s service delivery to survivors. FARG itself is structured so as to exclude rather than include survivors in its organization and management. Board members are appointed by Rwanda’s prime minister and they have not historically and do not today include significant formal representation of genocide survivors and their organizations. Inevitably, this creates a gap between the Rwandan government and Rwandan genocide survivors, and it raises serious questions about government inclusion efforts. It is hard to envision how a program of reparative justice can be implemented in Rwanda if the Rwandan government itself has excluded genocide survivors from the main government agency responsible for provision of services to them. Critique of the FARG stems not only from survivors and their organizations. The auditor of the Rwandan government has repeatedly leveled strong critique of how the FARG operates and its negative consequences on survivors and on the efficient and appropriate use of government funds. The current audit of FARG identified errors in its database, and various cases of ghost beneficiaries. … The report also revealed poor coordination and potential mismanagement of several billions of Rwandan Francs (equivalent to several million British Pounds) earmarked for house building, and education, for needy survivors. … A sum amounting to seven billion Rwandan Francs was disbursed between June 2010 and June 2012 for the construction of 3,489 houses for vulnerable genocide survivors identified as homeless in 2010. More than half this sum remains unaccounted.59

Despite having urgent needs for adequate housing, the FARG has failed to provide genocide survivors with such housing due to mismanagement. In 2011 the Auditor General affirmed that FARG had contracted housing developments for survivors that were of poor quality, too costly, and lacking in durability. He also noted large-scale theft and loss of building materials which were to be provided to survivors to enable them to construct homes and/or improve the safety and quality of their homes.60 Over 200  ‘FARG Beneficiaries Not Getting Benefits,’ https://www.youtube.com/watch?v=8E_tZPLxF6o 59  David Russell, ‘FARG Audit’ (2014). https://survivors-fund.org.uk/news/farg-audit/ 60  Ibid. 58

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million British pounds (over 260 million US dollars) have been budgeted for genocide survivors through FARG, but only a very small part of that sum has actually reached survivors in the form of quality programming and services.61 FARG has consistently failed to use the funds at its disposal for social services for survivors; instead redirecting funds back into the Rwandan national budget despite the fact that in doing so it was willfully neglecting its responsibilities to meet the needs of Rwandan survivors. According to Albert Gasake, who is a genocide survivor and a human rights lawyer who advocates for survivors with the Task Force to Remember Survivors and with SURF, The 2012 FARG evaluation report identified that FARG has consistently recorded an underspend on its annual budget since its establishment in 1998, a sum which amounts to 50 billion Rwandan Francs (50 million pounds.) IBUKA, the umbrella association of survivors’ associations, called for an immediate enquiry into why this budget has not been utilized—a call that remains unheeded to date.62

50 million pounds is roughly 60 million US dollars. That sum, had it reached survivors, would have enabled a truly comprehensive program of reparative justice that would likely have met many of the requirements of international human rights law. It would be highly advisable for the Rwandan government to account for the aforementioned issues of waste, corruption, and mismanagement in relation to the FARG and to redress them. A process of accounting should also be undertaken by Rwanda’s ombudsman in partnership with the relevant Rwandan government agencies, FARG, and survivor NGOs to ascertain exactly what funding originally set aside for survivors via FARG actually reached survivors before being siphoned off for other government expenditures, lost, or stolen due to corruption. Those funds which did not reach survivors—and thus violated the Rwandan parliament’s intention when funding the FARG—should either be directed toward a trust fund for survivors or to direct provision of services for survivors via a rehabilitated FARG or other Rwandan government agencies and/or NGOs working in Rwanda.  Ibid.  Ibid.

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Housing provision by FARG continues to be inadequate. As late as the end of December 2016 FARG was still in the planning stages of finding suitable housing for survivors which would not become available until well into 2017 or 2018. That there was finally a framework of housing provision for this particular group of survivors was a good thing of course, but it demonstrates that FARG has failed to work in a timely way, leaving thousands of survivors with inadequate and unsafe housing for many years on end.63 Despite these failures already in 2015 the government sought to wind down the FARG’s housing construction program, despite having the knowledge that its work was far from complete. It also called to cut back funding for secondary school education for survivors. Some Members of Parliament criticized FARG for its inadequate provision of housing for survivors, despite the claims of its Director General, Theophile Ruberangeyo, Legislators said some houses that were built for the survivors were either poorly constructed, or contractors abandoned housing projects before completion. According to the AG’s report, Farg’s 2012/2013 Budget Framework had intended to renovate 3,306 housing units for Genocide survivors but only 350 (about 11 per cent of the entire projects) were renovated. In Huye District, End Construction Company, contracted to build 30 housing units, worth Rwf126 million, put up 25 shoddy units and FARG had to part with a certain percentage of the charges. The report also indicated that 4,000 survivors from seven districts did not get direct support from the Fund worth Rwf364 million, while, survivors’ income generating projects, worth Rwf8 million, were never executed at the sector level, especially in Rulindo and Ngoma districts.64

As of May 2019 FARG is in arrears on the construction of over 2000 homes for genocide survivors. According to the State Minister for Social Affairs, Dr. Alvera Mukabarama, the construction of 2000 needed houses would cost approximately 25 billion Rwandan francs but that more than 2000 houses are needed which would bring the cost to approximately 30 billion Rwandan francs, which would address the significant rise in 63  Michel Nkurunziza, ‘FARG To Provide Shelter For 1, 836 Genocide Survivors’ Rwanda New Times (2016). https://survivors-fund.org.uk/news/shelter-2/ 64  Athan Tashobya, ‘Genocide Survivors Housing Programme Draws to a Close’ Rwanda New Times (2015). https://survivors-fund.org.uk/news/housing/

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construction costs as well as the need to furnish homes and insure that they are inhabitable and meet the basic needs of survivors by being equipped with water harvesting tanks, for examples. Survivors who are particularly disadvantaged are also to be provided with a cow to assist with income generation and food security. According to Emmanuel Munyangondo, the Director of Planning, Monitoring and Evaluation at FARG, FARG has thus far constructed 28,558 housing units and rehabilitated 4714 others.65 Some of the problems with FARG echo larger problems with Rwanda’s national social protection programs. Overall, these programs for a country with extremely limited economic resources and aid dependency show an unusually serious and intensive commendable commitment to social welfare, combating poverty, improving healthcare, housing, and educational opportunity, and raising both life expectancy and quality of life on the part of the Rwandan government. However, genocide survivors fall through a gap in service provision and social protection precisely because the general social protection programs are insufficient for their unique needs and deep forms of disadvantage. A recent UNICEF report on social protection, ‘UNICEF Social Protection Budget Brief: 2018/2019 Investing in Inclusiveness in Rwanda’ highlights areas of strengths and weaknesses in Rwandan social protection. One area for improvement which impacts all social protection programs, including FARG as we have previously discussed, is underspending of funds marked for social protection. The UNICEF Report states, The budget execution rate by central government and districts, respectively, declined from 92.5 per cent and 99 per cent in 2014/2015 to 72.7 per cent and 86.3 per cent in 2017/2018. The decrease in the budget execution rate is concerning and could potentially negatively influence the nominal increase in allocated budget. Therefore, there is a need to improve budget planning and execution to ensure full execution of allocated budgets.66

But there are also areas of social protection expenditure achievement that ought to be recognized. Government expenditure for general social 65  Michael Nkurunziza, ‘FARG Needs RWF 30 Billion for Survivors’ Housing’ Rwanda New Times (2019) https://allafrica.com/stories/201905080698.html 66  ‘Social Protection Budget Brief: Investing for Inclusiveness in Rwanda’ 2018/2019 https://www.unicef.org/esaro/UNICEF-Rwanda-2018-Social-Protection-BudgetBrief.pdf

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protection has increased substantially in the last five years, from 73.1 billion Rwandan Francs in 2015/2015 to 138.3 billion Rwandan Francs in 2018/2019. This is an increase of 89.3%—which is dramatic and significant. But when the data is disaggregated, we find that not enough of that expenditure reached survivors. UNICEF celebrates this increase in social protection funding and programs but notes that, The increase in budget shows renewed commitment by the Government of Rwanda to strengthen social protection and promote inclusiveness. However, a further increase in public spending in social protection on the medium term is required for the government to achieve the expected level of scale-up and coverage of social protection services.67

Some social protection programs such as the ‘One Cow Per Poor Family Girinka Program’ have grown more than five-fold in expenditure, from a budget allocation of 4.6 billion Rwandan Francs in 2016/2017 to 26.3 billion Rwandan Francs in 2018/2019. However, thousands of impoverished survivors still lack cows—whether those provided via FARG or the Girinka program. They are falling through the cracks. In the same way, the massive increase in expenditure on health has little impact on survivors, who still lack virtually any mental health support services. So despite the Government of Rwanda increasing its overall national health expenditures from 5.6 billion Rwandan Francs in 2016/2017 to 36 billion Rwandan Francs,68 an increase of over six-fold, little of that reaches survivors. In considering what types of programs of reparative justice might be most beneficial to genocide survivors it is valuable to turn to the recent and current programming of SURF and its partner agencies. These programs are provided not as a part of a formal program of reparative justice and in legal recognition of the human right to reparative justice. However, they address the exact same issues that such a reparative justice effort (were it to provide holistic social services, rather than direct financial compensation) would likely address. The Widowed Survivors Empowerment project69 run by AVEGA, for example, was funded by the UK Department for International Development. It was one of the largest reparative justice programs ever implemented in Rwanda both in funding level  Ibid.  Ibid. 69  SURF Annual Report, 2013–2014. See also earlier annual reports. 67 68

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(approximately $1.5 million) and the number of survivors it has reached over the course of three years between April 2012 and March 2015 (24,536 survivors). It extended to 15 of Rwanda’s 30 provinces. It provided holistic support to widowed survivors in the form of job training and skills development, human rights education, legal assistance to secure stolen property and land, health support services, and grants to alleviate extreme poverty.70 A similar project, but implemented on a smaller scale, is the Genocide Widows Empowerment Project. With a budget of approximately $800,000 between December 2012 and November 2015 the Genocide Widows Empowerment Project reached approximately 2500 widows in five Rwandan provinces who previously lacked support services.71 Like the AVEGA project, it included the same holistic wrap-around services as well as an emphasis on microcredit and small business development.72 A smaller scale program to address the needs of survivor youth, the Youth Entrepreneurship Training program, has provided training in small business development. Other programs of assistance to survivors include a Community Counseling Initiative which provides trauma counseling in a group setting for women genocide survivors who were raped and are parents of children born of rape. A counseling and legal helpline has been set up by AERG to help student survivors of the genocide with both practical and psychological support. Launched in 2013 it has received over 246 calls, providing legal advice for survivors trying to reclaim stolen property or land and supportive listening and intervention, where appropriate, for individuals suffering from trauma.73 Recognizing that grants from FARG to student survivors of the genocide reach only a fraction of survivors in need of such support, the University Sponsorship Program provides essential funds for impoverished genocide survivors to attend university, providing tuition fees, school materials, and hardship assistance toward transport and accommodation costs. These three programs currently reach a small number of survivors and there is a need to scale them up extensively.

70  For a richly detailed study of AVEGA’s efforts to advance the rights and welfare of widowed genocide survivors see Picco, supra note 48 in this chapter.  71  SURF 2013–2014 Annual Report. https://survivors-fund.org.uk/about/our-reports/annual-reports/ 72  Ibid. 73  Sam Munderere, http://survivors-fund.org.uk/news/uncategorized/helpline, June 26, 2014.

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While most of the large international development NGOs working in Rwanda neglect genocide survivors, currently there is one outlier that should be recognized for its commitment to genocide survivors and that is ActionAid. ActionAid supports approximately 1000 genocide survivors, and their commitment to genocide survivors and programming for and with them illustrates that when there is a will on the part of international NGOs to advance reparative justice then there is a way.74 ActionAid’s programs include vocational training, women’s empowerment education, legal support, clean water provision, distribution of cows for income generation and nutritional support, psychological counseling, resources to combat domestic violence and advance women’s rights, and diverse income generation activities. The work that ActionAid does in Rwanda could be scaled up and adopted by other international development NGOs so that it would reach a much larger number of genocide survivors, as it is the responsibility of all the international development NGOs in Rwanda to advance the rights and welfare of genocide survivors, not only that of ActionAid. In their response to the International Organization of Migration Report which endorses a program of reparative justice but does not make specific recommendations about how exactly it should be structured and how reparative justice should be actualized, survivor organizations have largely supported its findings and highlighted areas of convergence. They have offered the following framework, which could be used for financial compensation for survivors and/or provision of reparative social services, or some combination thereof, as a possible way forward for the implementation of reparative justice: Over different consultations, survivors have expressed ideas in favor of comprehensive and independent reparation as opposed to a reparation programme directly funded and managed by the GoR. … A combination of a reparation fund and a reparation programme is viable in the context of Rwanda. As such, the best way to operationalize the right to reparation will be the establishment of a separate reparation fund in which the government commits a line budget to finance the fund, alongside the international community.75 74  ‘Liberata’s New Dawn After the 1994 Genocide Against the Tutsi,’ https://rwanda. actionaid.org/stories/2019/liberatas-new-dawn-after-1994-genocide-against-tutsi 75  Submission to the Ministry of Justice in Response to the Final Draft Report of the Rwanda Reparations Assessment Study ‘Realizing the Right to Reparations of Survivors of

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In their response to the IOM report, survivors confirm what the preliminary report on reparative justice for Rwandan genocide survivors of the International Organization of Migration states, “For genocide survivors, reparation is the most tangible manifestation of the state and the international community’s efforts in acknowledging and repairing their lives.”76 The key concerns which the survivor organizations raise in their response to the IOM Report are as follows: • There is unanimous agreement across all stakeholders involved in the draft report that reparation is a right of survivors as enshrined in both national and international law. … In summary, we commend the draft report. • The draft report explicitly recognizes the past assistance efforts made by the Government of Rwanda to support the most vulnerable survivors, but that this assistance is separate from reparation. (Author’s italics.)

• That legally, morally, and psychologically there is a clear distinction between this assistance, and the reparation proposed in the draft report.

• That the responsibility for reparation lies principally with the State, and that the international community has an important contributory role to play in it. • That survivors need to be formally represented at the very highest level, alongside other stakeholders, in any reparation mechanism.

The draft report first and foremost reflects the views of the survivors as expressed during the consultations. It also recognizes the urgency of the issue of reparation as set out in the October 2012 Discussion Paper, ‘Right to Reparation for Survivors.’

the 1994 Genocide Against the Tutsi’. Submitted by IBUKA, SURF, AERG, GAERG, AVEGA, BARAKABAHO Foundation. November 20, 2014. 76  Albert Gasake, quoted by Sam Munderere, SURF Survivor’s Fund, https://survivors-fund.org.uk/awareness-raising/momentum/

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• The draft report emphasizes outstanding Gacaca reparation judgments and judgments from ordinary courts, including judgments against the State. It is important to protect survivors who have engaged in or who might wish to engage in legal recourse regarding their land rights, or Gacaca enforcement, or other legal related issues. The enforcement of national court judgments and/or gacaca decisions is an important component of and serves to restore trust of survivors in the rule of law. Simply dismissing the judgments survivors have obtained, often as a result of a long and persistent struggle, risks undermining their faith in the rule of law, and indeed, any future reparation effort. Notwithstanding the need for immediate reparation, survivors wishing to have their decisions enforced should continue to be able to do so.77 The survivor organizations further express concern that the IOM report does not show enough gender sensitivity, concern for survivor participation, and adequate attention to a reasonable minimum standard of financial resources required to deliver reparative justice that meets the criteria of international human rights law and makes a tangible, significant, and consequential impact on the lives and well-being of survivors. The survivor organizations affirm, “We reiterate our firm belief that the primary responsibility to fund reparation lies with the GoR. This does not mean however that we do not recognize the invaluable assistance offered to the most vulnerable survivors over the last two decades. The international community bears its responsibility to provide reparations too.” They express particular concern that the most vulnerable genocide survivors, widows with no means of income and orphans similarly unable to provide for themselves economically, are assisted expeditiously and substantially to alleviate their poverty and its resulting disadvantages, including social marginalization and ill health. Back in 2006, a Rwandan government official was frank about why the government would not support reparative justice for genocide survivors; it simply preferred to prioritize other populations and areas of government and wanted to spend aid on general national development, even if that 77  All bullet points from the Submission to the Ministry of Justice by Genocide Survivor Organizations—‘Task Force to Remember Survivors 20.’ SURF 2013–2014 Annual Report, p. 10. https://survivors-fund.org.uk/about/our-reports/annual-reports/

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came at the expense and marginalization of survivors. The Executive Secretary of the National Service of Gacaca (community court) Jurisdictions (SNJG in French) stated, “Compensation in a legal sense, we think it’s impossible for us. … We cannot commit ourselves on something we are not sure to achieve. Even our internal budget depends on outsiders for over 50 percent. … You’re not going to stop other lines of development of the country.”78 The logic here is morally, legally, and practically flawed and it lacks any empirical basis—but it accurately reflects the government’s reasoning—purported fears that reparative justice will somehow hinder Rwanda’s national development and be perceived as unfairly favoring survivors. As we saw earlier, reparative justice in the many countries where it has been undertaken—from Israel to Argentina and Chile ultimately contributes to the welfare of a disadvantaged population, empowering and reintegrating them into society, and advancing their human development and capacity to contribute to the country as a whole. There is no rational reason why it would be any different in Rwandan for genocide survivors, who are eager to rebuild their lives and contribute to Rwandan society but are hindered from so doing by a lack of reparative justice. But there is a diversity within the government. Although those who would refuse genocide survivors reparative justice clearly dominate the government and their preferences reflect government policy, there are dissenting voices in government and these have waxed and waned and continue to be dynamic, with some government officials sympathetic to the rights and welfare of genocide survivors and awake to the legal, moral, and social costs of failing to advance reparative justice for them. The former head of the National Unity and Reconciliation Commission has stated, The will from the government is there, but the challenge is funding for that … because Rwanda is a poor country. From a reconciliation point of view, a form of reparations—even if it would be symbolic—would be important so survivors also feel there is really a drive to rehabilitate them and restore their dignity.79

78  Lars Waldorf, ‘Goats and Graves: Reparations in Rwanda’s Community Courts’ in Reparations for Victims of Genocide, War Crimes, and Crimes Against Humanity: Systems in Place And Systems In The Making (eds) Carla Ferstman, Marian Goetz, Alan Stephens (Martinus Nijhoff 2009) 520. 79  Ibid.

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While he is certainly right that to advance reconciliation and national unity reparative justice is a prerequisite, survivors have legal rights to reparative justice and merit much more than mere symbolic reparations—they merit substantive ones which can and should also incorporate symbolic measures, but not at the expense of real repair. Poverty is not alleviated with symbolic gestures, mental health is not sustained through statements of purported solidarity, shelter does not result from mere affirmations of the importance of housing for survivor dignity and stability, and justice and well-being cannot be attained without attending to the physical and psychological wounds of survivors. While the survivor organizations have shown a pragmatic willingness to consider different forms of reparative justice, including ones that focus on provision of social services–rather than financial compensation to survivors—they emphasize that the majority of survivors when surveyed express a clear and strong preference for financial compensation as the primary means for them to actualize reparative justice. The survivor organizations also stress that while survivors expect and demand that Gacaca reparations rulings and those of Rwanda’s civil courts be respected and enforced, these should not and do not prejudice a survivor’s right to reparation provided by a national and/or international program of reparative justice, regardless of its means of organization and provision via financial compensation, provision of social services, or some combination thereof.80

 Ibid.

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Conclusion

Rwanda’s genocide survivors—as represented by the full cross-section of their communal organizations—have made it clear that what they need and deserve after the Rwandan genocide against the Tutsi is a comprehensive program of reparative justice in accordance with international human rights law. Whether or not international human rights law is respected and fulfilled will be determined largely by the Rwandan government, if it recognizes its obligation to use all reasonable resources to respect and fulfill reparative justice and if it reflects critically on whether it is adequately meeting its responsibilities under the Rwandan Constitution to realize the welfare and rights of genocide survivors. It also depends on the choices of donor nations able to contribute the necessary funds to enable such a program, and the NGOs currently delivering social services in Rwanda to make a more concerted effort to contribute to reparative justice efforts. These include bilateral and multilateral aid agencies and agencies of the United Nations such as UNDP and international NGOs such as CARE, Oxfam, World Vision, Save the Children, and other members of the Network of International Non-Governmental Organisations in Rwanda (NINGO). They can organize on their own initiative and without any delay a voluntary Trust Fund for Genocide Survivors. Frederic Auger, the Chairperson of NINGO and Country Director of the American Refugee Committee stated at the 21st commemoration events of the genocide in April 2015  in Ntarama church in Rwanda, “Commemoration is one thing, but we are working for Rwanda’s © The Author(s) 2020 N. Schimmel, Advancing International Human Rights Law Responsibilities of Development NGOs, https://doi.org/10.1007/978-3-030-50270-6_6

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development, improved wellbeing, reconciliation, healing, supporting Genocide survivors, and to fight divisionism as a way of preventing such atrocities from happening again.”1 If this is indeed the case, far greater resources and efforts need to be invested in supporting survivors, in partnership with survivor organizations and the Rwandan government if the gap between rhetoric and reality is to be bridged. These NGOs and unilateral and multilateral aid agencies have a role in advancing a formal program of reparative justice; but they can also contribute to the aims of reparative justice by supporting already existing small-scale programs addressing the rights and needs of survivors we have discussed, integrating them into their current development programs, and making the effort to try to expand such programs to reach a larger number of survivors working in partnership with survivor NGOs such as AVEGA and AERG. The East African community has gone on record endorsing reparative justice for Rwandan genocide survivors. In April of 2013 the East African Legislative Assembly passed a resolution calling for the establishment of an International Trust Fund for Survivors.2 The African Union Human Rights Commission released a statement in July of 2013 incorporating the resolution of the East African Legislative Assembly stating that reparation was a matter requiring ‘particular attention.’3 The recognition that the lack of a reparative justice mechanism within the ICTR creates an unacceptable and excruciating dissonance between international human rights law and its practice and fulfillment is an important one. The Tribunal’s Chief Prosecutor, Hassan Bubacar Jallow, stated in April 2015 at the Kigali Genocide Memorial that, “Unfortunately, at the time when the tribunal was established, the issue of compensation of victims was not part of that process. But the system of international justice has evolved to the point where the question of compensation to victims is paramount.”4 He continued to affirm that it is possible and necessary to take action to remedy this. “I think it’s still not too late for the international community, even outside the context of the ICTR, to look into the issue of reparations to 1  Jean Mugabo, ‘Kwibuka 21: NGOs Forum Pays Tribute to Genocide Victims’ Rwanda New Times (2015) http://www.newtimes.co.rw/section/article/2015-04-18/187965/ 2  SURF Survivor’s Fund 2013–2014 Annual Report, p. 10. https://survivors-fund.org.uk/about/our-reports/annual-reports/ 3  Ibid. 4  Edwin Musoni, ‘Genocide Survivors Hopeful of Reparations as ICTR Winds UP,’ Rwanda New Times (2015). http://www.newtimes.co.rw/section/article/2015-04-23/188122/

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ensure that victims are compensated for the suffering that they underwent.”5 Rwanda’s former Justice Minister, Johnston Busingye, has echoed these sentiments, reflecting on the IOM study envisioning reparative justice for Rwandan genocide survivors stating, “If this succeeds, it would be the first step, then we will have to move forward with mechanisms of implementation with all the stakeholders on board. There is every reason and every justification to hope for the best.”6 But the Rwandan government has now openly and vigorously positioned itself as an antagonist to reparative justice, seemingly concerned that funds directed toward reparative justice might come at the expense of general development funds for Rwanda as a whole. This fear is unwarranted. Development aid funds are not provided on a zero sum basis. There are sufficient resources at the United Nations, international NGOs, and UN member states such as the United States and EU member states as well as the United Kingdom and Japan—which provide Rwanda with the bulk of its aid budget—to provide the funds necessary to advance reparative justice for survivors without undermining Rwanda’s national development. The notion—often obliquely implied by the Rwandan government—that respecting the rights of Rwanda’s genocide survivors undermines unity and reconciliation lacks empirical foundations and evidence. There is no basis ethically and legally for asking genocide survivors to sacrifice their rights for the sake of unity and reconciliation and practically speaking there is no need for them to do so in order to advance unity and reconciliation. Rejecting reparative justice is detrimental not only to survivors but to Rwanda as a whole and to the ongoing achievements of the Rwandan government. A voluntary trust fund for genocide survivors that would disburse its funds through reparative justice programs similar to those already implemented on small scale by organizations like SURF Survivor’s Fund and supported by the Rwandan government, national aid agencies, international organizations like the United Nations, and international NGOs such as CARE and Oxfam would complement and deepen Rwanda’s national development—not slow it down and constrain it. It would contribute to unity and reconciliation. Its absence actively undermines them.

5 6

 Ibid.  Musoni note 4 in this chapter.

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In reflecting on the impact of AVEGA’s reparative justice economic development and business skills training project for widows, and the mutual support system it establishes, survivors are articulate proponents for reparative justice and its multiple positive impacts on them and more broadly, its positive ripple effect on Rwandan society as a whole. Their testimonies are the most compelling endorsement of its transformative potential. ‘We feel confident which is really different from how it was before. We are happy, and very proud of ourselves. We have even became younger somehow!’ ‘In groups [widows] have a social life and [...] even if they have lost their families they are able to interact with others and to have more hope. Now, they don’t only interact with other widows but also with the whole Rwandan community.’ ‘After the genocide it was difficult for us to speak to anyone because we feared them and we were unhappy. But today we interact with people because they are neighbours and our customers. If I have to leave my cow at home I ask my neighbour to look after it. We no longer fear people but we invite each other to our children’s weddings and we support each other.’ ‘Now we are leaders locally and we want to fight for our dignity and respect. Take me as an example: I don’t fear anyone and when there is a problem, I stand and fight for the truth.’7

In 2018, Daphrose Mukangarembe, a genocide survivor who passed away tragically in February of 2020, emphasized that survivors still need substantially more support than they are receiving. One of the areas of specific support still required by survivors is the need for homes for the elderly and the need for social support to alleviate hardship. As you can see I was physically injured in the genocide, and ever since then my health has not been good. As we become older it is difficult for us to work around our home. For many elderly survivors who do not have relatives, it is very difficult. We get only a small monthly hardship support from FARG, but it is very little, and only supports us for a maximum of two weeks. If the harvest is not good, then we even go hungry. We need to do more to take care of elderly survivors.8

 Picco, supra note 48 in Chap. 5 at 36.  David Russell, ‘Daphrose Mukangarembe’ SURF Survivors Fund, February 17, 2020. https://survivors-fund.org.uk/news/daphrose-mukangarambe/ 7 8

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Will Daphrose and countless survivors who echo her experiences and sentiments finally be listened to and genuinely respected and supported? Survivors have done their part—against all odds—to organize, articulate, and advocate for what is theirs by right. It is the test of conscience of the Rwandan government, the United Nations, its agencies and its member states, and NGOs to respect and fulfill their human right to reparative justice. In so doing they will contribute to the well-being of survivors as well as the economic growth of the country as a whole while also advancing sustainable and enduring human development, greater social cohesion, and peaceful relations between Rwandans. Although there has been resistance to provide survivors with adequate support recently there has been some improvement that, however small, is encouraging. The Rwandan government has increased the funds provided to particularly vulnerable survivors through FARG as of the summer of 2019.9 This increase in funds from a monthly stipend of 7500 Rwandan francs to 12,500 Rwandan francs will make a real difference for the most disadvantaged survivors and will reach over 25,000 survivors. Due to increases in costs of living the original plan was to increase the stipend to 15,000 francs but because of insufficient funds that has not happened. This needs to be urgently addressed and FARG needs the necessary funds and the necessary oversight to insure that they reach survivors promptly, with reliability and transparency. In the meantime, NGOs in Rwanda should be mindful of the gap between survivor needs and inadequate funding from FARG, and step in to close the gap as best they can. As Naphtal Ahishkaye, Executive Secretary of Ibuka has said, “Based on the prices of commodities on the market today as compared to when this money started being disbursed, you can tell that obviously the money was little. This increase is a good step even as all know that there is still not so much that 12,500 Rwandan francs can do.”10 The government needs to calculate based on the cost of living and the unique needs of survivors what funding stream would be sufficient to meet survivor needs. It is likely that it is closer to 30,000–40,000 Rwandan francs a month. Indeed, as noted by the survivor Daphrose Mukangarembe as discussed above, 12,500 Rwandan francs is not enough and leaves 9  Nasra Bishumba, ‘Government Increases Stipends for Vulnerable Survivors’ Rwanda New Times (2019). https://www.newtimes.co.rw/news/govt-increases-stipends-vulnerable-survivors 10  Ibid.

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survivors living precariously and puts them at risk for falling into food insecurity. It sustains chronic poverty and vulnerability, rather than alleviating them. The Rwandan government ought to work toward achieving a multi-­ year budget that provides  whatever the exact figure survivors require for their health and well being and—in the meantime—to cooperate with NGOs to have them provide some supplementary services until government revenue streams are dedicated in the adequate amount to survivor rights and needs. Despite daunting needs and a profound lack of support from international NGOs, the United Nations, and national aid agencies, survivor organizations such as AVEGA continue to pursue dramatically effective programs of community empowerment and development run by survivors for survivors. It is essential to recognize the outlier organizations that recognize the value, urgency, and effectiveness of their work. Unlike almost all national aid agencies working in Rwanda—including the US Agency for International Development and the national aid agencies of European Union countries—Britain’s Department for International Development (DFID) has been a continuous and robust supporter of AVEGA programs. Recently, UK Direct Aid announced major funding for a project that began in the fall of 2019 and will continue through March of 2022.11 UK Direct Aid is the challenge fund of the United Kingdom’s Department for International Development, and it supports civil society initiatives to achieve sustained poverty reduction. Entitled ‘Empowering Vulnerable Genocide Widows in Western Rwanda to Alleviate Extreme Poverty,’ this project is directed to vulnerable genocide widows and their dependents in the Nyamasheke and Rusizi districts of Rwanda’s Western province. The budget is just under a quarter of a million British pounds (249,613 pounds) and will empower 1050 vulnerable genocide survivor widows and 4000 of their dependents. Projects will include income generation training, community education and mobilization for self-empowerment, and programs aimed at improving food security and increasing sustainable energy resources. Simultaneously, the same project supported by a different funder is being run in Karongi District with the goal of reaching 400 vulnerable genocide survivor widows and their 1200 dependents. The goals of the 11  UK Aid Direct, UK DFID Department for International Development Grant Holders Announced. https://www.ukaiddirect.org/news/more-uk-aid-direct-grant-holders-announced/

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program are the same, but additionally include counseling and trauma therapy that have already reached over 200 genocide survivors as well as training in improved subsistence gardening and provision of solar lamps and clean cook stoves. The budget is 89,250 Swiss Francs and it is provided by the Addax and Oryx Foundation.12 These two programs show that if there is a will and serious engagement and commitment to survivors there is a way forward that advances the human rights, welfare, and dignity of survivors. The most recent studies from 2018 to 2019 illustrate the ongoing vulnerability and disadvantage of genocide survivors in Rwanda. 35.6% of Rwandans who sought mental health assistance in Rwandan hospitals in the calendar years of 2017 and 2018 were genocide survivors, despite being less than 5% of Rwanda’s national population, illustrating the extensive need for mental health services for genocide survivors who require such services at disproportionately high rates.13 A recent study  which interviewed approximately 1200 genocide survivors conducted by the Rwanda Medical Center, University of Rwanda, the Justice Ministry, and local governments reported rates of depression among genocide survivors at three times the rate of the general population with high rates of ongoing trauma among genocide survivors.14 Psychiatric and psychological care are severely underfunded in Rwanda—as in much of the developing world and in Europe and North America as well. Dr. Jean-Damascene Iyamuremye, the Director of the Psychiatric Care Unit at the Rwanda  Addax-Oryx Foundation Project Empowering Vulnerable Genocide Survivors. https://www.addax-oryx-foundation.org/en/projects/empowering-vulnerable-genocidewidows SURF: Empowering Genocide Widows in Karongi. https://survivors-fund.org.uk/news/empowering-genocide-widows-in-karongi/ SURF: Genocide Widows to Benefit from New Loan Guarantees. https://sur vivors-fund.org.uk/news/genocide-widows-to-benefit-from-newloan-guarantees/ 13  David Russell, Surf Survivor’s Fund, April 19, 2020. https://sur vivors-fund.org.uk/news/covid-19-sur vivors-fund-sur f-repor tsrise-in-trauma-cases/ This posting by David Russell is based on two extracts from Rwanda’s New Times newspaper April of 2020s edition of the newspaper written by Nasra Bishumba. Nasra Bishumba, ‘COVID 19: Survivor’s Fund Reports Rise in Trauma Cases’ Rwanda New Times, (2020). https://www.newtimes.co.rw/news/covid-19-survivors-fund-reports-rise-trauma-cases Nasra Bishumba, ‘Coronavirus Crisis Fuels Mental Health Problems Amongst Genocide Survivors’ Rwanda New Times, (2020). 14  Ibid. 12

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Biomedical Center, has stated, “Mental health is still underfunded yet we need to coordinate activities of treatment and prevention, fighting stigma against victims and we need to raise awareness regarding access to treatment.”15 Genocide survivors in particular pay a terrible price in their mental health because of the lack of prioritization of mental health within overall healthcare provision in Rwanda both by the government and by international development NGOs. As the COVID-19 coronavirus pandemic has reached Rwanda it has left genocide survivors in a uniquely vulnerable position, particularly because it struck right at the beginning of the 26th commemoration of the Rwandan genocide against the Tutsi in April of 2020, a time when genocide survivors experience especially intense and continuous distress, trauma, and loneliness. This is exacerbated all the more this year, as genocide survivors cannot gather together physically to support one another, they cannot pay their respects to their family members at genocide memorial sites and cemeteries, and they cannot gather to commemorate the genocide as is normally done every year throughout the country. Some are being retraumatized by feelings of powerlessness, fear, and physical entrapment, as reported by Emilienne Kambibi, a social worker and counselor with SURF Survivor’s Fund.16 There is a great need of support for expanded phone counseling. But we still do not see recognition of this by most international development NGOs in Rwanda and adequate response to the unfulfilled human rights and needs of genocide survivors. Instead, small amounts of support have been generated by SURF Survivor’s Fund from exceptional international donors due to a lack of commitment on the part of international development NGOs in Rwanda to genocide survivors.17 This is a tragedy that illustrates a continuity of neglect on the part of international development NGOs in Rwanda that is shameful, unethical, and in violation of the most fundamental obligations to assist those populations who are the most acutely disadvantaged, vulnerable, and at risk. The legal vacuum in which international NGOs now function needs to be addressed. Just as the Ruggie Principles have informed the policies of corporations, a similar effort ought to be undertaken for NGOs. The self-­ regulating frameworks such as the International Red Cross Code of Conduct and the NGO Charter of Accountability provide foundations for  Ibid.  Ibid. 17  Based on communications with SURF Survivor’s Fund. 15 16

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embarking on such a process although—as we have discussed—they have little impact without greater enforcement of the law to protect vulnerable individuals and communities, both domestic law and international human rights law. It remains unlikely that in the immediate future IHRL treaty bodies will consider NGOs to be legally responsible to respect and fulfill IHRL law. However, by creating a widely agreed upon soft law framework for social and moral responsibility there is a reasonable likelihood that, with time, a new common standard will impact practice. What will begin as soft law may eventually become binding customary law and may then inform the development of treaty law. Even if this does not come to pass it would be valuable to have a body of soft law on the IHRL responsibilities of NGOs. It is likely to influence NGO policies in a positive way, nudging them toward greater respect for IHRL as well as empowering individuals and communities impacted by NGOs to hold them socially and morally accountable for IHRL respect, protection, and fulfillment. Given the recent egregious examples of abuse of power and human rights violations at Oxfam and Save the Children, at various agencies of the United Nations, and among other development NGOs, it is urgent that such a framework be developed without delay. Much of this book deals with legal theory and interpretation. But it is equally concerned with their impact on policy and practice. In the absence of a legal framework for NGOs to undertake their activities they are now the one remaining major actor that lacks even minimal IHRL accountability, even an exclusively moral and social one. The consequence is that a major human rights actor is free to ignore IHRL and/or to adopt it only rhetorically rather than in practice. Beyond policy and practice are people. In the case of Rwanda, genocide survivors have suffered because development NGOs have largely ignored IHRL guarantees of reparative justice and have agreed to work in partnership with the Rwandan government and as an agent of it without sufficiently addressing and incorporating the human  rights of genocide survivors to reparative justice in their transitional justice development remit. In Rwanda, this neglect of IHRL has harmed the successful implementation of transitional justice because for genocide survivors adequate justice has not been delivered in the absence of reparation and rehabilitation. Respecting IHRL on reparative justice necessitates that NGOs in Rwanda go back to the soft law and treaty law of reparative justice and use it as a basis for informing development aid.

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For survivors survival is not something that happened in 1994 and ended on July 4, 1994. Liberation for survivors is a daily and daunting effort, not something that happened on a historical date and is finished. It is a process and a project, a commitment and a struggle, a mountain to climb, and many obstacles to surmount—physical, spiritual, emotional, psychological, social, economic, and in other ways each and every day. Often the summit of the mountain recedes and each day appears further and further away. But many survivors also summit that mountain everyday they get up and live another day, go to work, have children and raise families, form friendships, celebrate milestones, express themselves creatively, and advocate for the rights and welfare of genocide survivors and educate the public about the genocide. Survivors mourn and grieve not only in April. Survivors remember their mothers and fathers, brothers and sisters, aunts and uncles, sons and daughters, cousins and nieces and nephews, friends and neighbors every single day. In the morning, in the afternoon, in the evening. Upon waking and upon sleeping. Survivors carry the pain and the loss of genocide with them at all times. It is a profound grief, longing, and loss that aches and that every survivor carries and lives with in his or her own unique way and that echoes within them. Therefore all of us who are not survivors, it is our responsibility to accompany survivors as compassionate, kind, and humble companions who listen with respect, care, and attention, who help when help is asked for or necessary, and who never turn a survivor away and leave them alone, unaided. That is the task of NGOs as much as of individuals. Reverien Rurangwa, a survivor of the Rwandan genocide against the Tutsi, gives poignant expression to the enormity of the moral and emotional weight genocide survivors carry as they strive to rebuild their lives, a weight which NGOs must help to lift and to hold as they contribute to this process of rehabilitation and renewal. I will never, ever rest. I will continue to fight for justice the rest of my small life in this world of madness. In the twenty-first century, we do not have the right to shut our eyes. In doing this we will build a better world for us, for our children, for all human beings. It is not easy to survive but I endure because I must, out of love for all those who were dear to me. I did not choose to be who I am, but I am proud of it and I did once have the right

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to be happy, to have a family, to have two hands, two eyes. And that is all I ask of humanity; to be able to live for myself and for my family.18

In partnering with survivors to assist them to rebuild their lives we must understand the difference between equity and equality. Because the failure to recognize the distinctive inequalities, injustices, and vulnerability survivors face which are social, systemic, and economic fails at equity and ultimately makes a mockery of equality. While this harms survivors first and foremost, it also undermines Rwanda and Rwandans as a whole and the goal of a united Rwanda. When development NGOs and governments treat everyone the same despite there being huge differences in resources and life experiences and abilities between them they engage—whether willfully or not but always inexcusably—in immoral and illegal discrimination and divisionism and no one should face such discrimination, least of all survivors of genocide. Development NGOs ought to undertake a process of self-assessment of the extent to which they are addressing the human rights of genocide survivors and consult with genocide survivors and the community-based organizations19 that advocate on their behalf along with relevant UN human rights divisions and agencies when undertaking this assessment. This will enable substantial changes in the content of their development programming to make it in line with NGO IHRL responsibilities for reparative justice. This will correct the current insufficient attention and respect paid to IHRL on reparative justice, which, as we have examined, contributes to the continued disadvantage and marginalization of genocide survivors by not adequately taking into account their unique circumstances and rectifying the injustices from which they suffer. By exercising and leveraging their power and influence in such a manner vis-à-vis the Rwandan government and in constructive and cooperative dialogue with it, development NGOs will contribute to the advancement of IHRL by insisting upon its priority in Rwandan government mandated provision of public goods. By providing genocide survivors with the reparative justice that is their human  right and that is necessary to transform disadvantage and vulnerability to empowerment, equality of opportunity, and individual and collective welfare and  Reverien Rurangwa, Genocide: My Stolen Rwanda Reportage Press (2009).  In Rwanda, as discussed earlier, these organizations include SURF Survivor’s Fund, AERG and GAERG, AVEGA, and IBUKA. 18 19

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social development NGOs will finally meet their moral and social IHRL responsibilities. As development NGOs have grown in economic resources, political clout, and programmatic significance IHRL needs to adjust to a changing world where states rarely act alone and where development NGO state partners have power and resources and should be expected to utilize them in ways that advance respect, protection, and fulfillment of IHRL. This will potentially contribute to the advancement of human rights and human welfare and begin to close the gap between human rights ideals and rhetoric and reality in Rwanda and globally.

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Index1

A ActionAid, 48n50, 102 AERG, 26n25, 72, 87, 94, 101, 103n75, 108, 117n19 African Charter of Human and People’s Rights, 39 African Union, 108 Ahishkaye, Naphtal, 111 Aids, 1n3, 2, 3, 5, 7–9, 11–13, 47, 50, 54, 65–69, 72–74, 76, 78, 81, 82, 84, 95, 99, 104, 107–109, 112, 115 Alston, Philip, 4, 9, 44, 44n34, 57 American Convention on Human Rights, 39 Amnesty International, 11 Argentina, 29, 40, 105 Arreguin-Toft, Ivan M., 64 Auger, Frederic, 107 AVEGA, 72, 78, 91–94, 100, 101, 101n70, 103n75, 108, 110, 112, 117n19

B Bangladesh, 64 Barnett, Michael, 9 Belgium, 23 Bikesha, Denis, 89 Blewitt, Mary Kayitesi, 8, 25 Braithwaite, John, 17 Busingye, Johnston, 109 C CARE, 9n26, 48n50, 61, 65, 78, 79, 82, 84, 90, 107, 109 Carranza, Ruben, 35 Catholic Agency for Overseas Development (CAFOD), 78 Catholic Relief Services, 78 Chile, 40, 59, 105 Christian Aid, 53, 78 Civil and political rights, 2, 3, 10, 47 Clapham, Andrew, 41, 55–57 CNLG, 86, 95

 Note: Page numbers followed by ‘n’ refer to notes.

1

© The Author(s) 2020 N. Schimmel, Advancing International Human Rights Law Responsibilities of Development NGOs, https://doi.org/10.1007/978-3-030-50270-6

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INDEX

Coexistence, 13, 15, 22, 25, 81 Compensation Law, 74 Congo, 8, 39 Corporations, 6, 10, 11, 42–44, 51–54, 51n63, 51n64, 57, 61–63, 114 Council of Europe Convention for the Protection of Human Rights, 39 D De Brouwer, Anne Marie, 8n21, 32, 32n42, 32n43 del Ponte, Carla, 32 Development, 1, 16, 38, 55–69, 72, 108 Dusingizemungu, Jean Pierre, 7n19, 73 E East African Community, 108 Economic and social rights, 3, 47 Education, 1n4, 2, 3, 7, 10, 28, 31–34, 38, 52, 61, 64, 65, 76n13, 83, 85, 86n37, 87, 88, 91, 96, 98, 101, 102, 112 F FARG, 83–91, 86n37, 93–101, 110, 111 Food security, 1, 75, 76n13, 99, 112 Forgiveness, 22–25 Former Yugoslavia, 31, 33, 73n7 G Gacaca, 19, 22, 74, 75, 104–106 GAERG, 72, 103n75, 117n19 Gasake, Albert, 73n8, 88, 97, 103n76 Germany, 21, 29

H Hamber, Brandon, 20, 21n17 Healthcare, 1n4, 2, 3, 9, 28, 29, 34, 52, 75, 75–76n13, 86n37, 99, 114 Henkin, Louis, 42 Hirondelle Foundation, 89 HIV, 31, 89, 93 Holocaust, 21, 22, 24, 26n25, 29 Hopgood, Stephen, 9 Housing, 2, 3, 7, 27, 32, 38, 75, 83, 86, 86n37, 96, 98, 99, 106 Human Rights First, 11 Human Rights Watch, 11 I IBUKA, 19, 72, 73, 97, 103n75, 117n19 India, 64 Inter-American Court, 34, 40, 41 International Court of Justice, 10, 11n31, 39 International Covenant on Civil and Political Rights, 39, 44, 52 International Covenant on Economic, Social and Cultural Rights, 39, 44, 52, 58 International Criminal Court (ICC), 8n21, 27, 32n42, 32n43, 33, 34, 39 International Criminal Court (ICC) Trust Fund for Victims, 8n21, 32n43, 34, 39 International Criminal Tribunal for Rwanda (ICTR), 12, 31–33, 73, 74, 108 International Human Rights Law (IHRL), 1–6, 1n3, 9, 11–13, 15, 37, 38, 41–47, 50–69, 71, 79, 83, 84, 97, 104, 107, 108, 115, 117, 118

 INDEX 

International Organization for Migration (IOM), 73, 73n7, 103, 104, 109 International Rescue Committee, 68 Israel, 24, 29, 105 J Jallow, Hassan, 32, 108 Japanese Americans, 29 Jews, 21, 24 K Kamminga, Menno, 2, 58 Karp, David, 10, 56, 59–63 Keller, Linda, 17 Kennedy, David, 9 Kolstad, Ivor, 50n63, 63 L Latham, Pauline, 67 Lau, Yisrael Meir, 24 M Maastricht Principles, 57 Mani, Rama, 15 Marshall, Tony, 18 McMahon, Patrice, 9 Mello, Sergio Viera de, 42 Mental health, 7, 22, 26n25, 29, 38, 86n37, 93–95, 100, 106, 113, 114 Mika, Harry, 18 Mingst, Karen, 64 Mirindi, Jean de Dieu, 87 Morocco, 28, 59 Mugiraneza, Jean Paul, 74 Mukangarembe, Daphrose, 110, 110n8, 111

139

Munyangondo, Emmanuel, 99 N Naik, Asmita, 68 Nairobi Declaration on Women and Girl’s Rights to a Remedy and Reparation, 38n4 Nazis, 21, 24 Ndayambaje, Laurent, 90 Nepal, 64 Netherlands, 17 Non-governmental organizations (NGOs), 1–13, 1n2, 1n3, 7n15, 9n26, 12n32, 18, 21, 35, 37–69, 72, 74, 78–84, 79n22, 90, 94, 97, 102, 107–109, 111, 112, 114–118 O Oxfam, 4, 47, 48n50, 53, 61, 65–69, 67n31, 78, 79, 81, 82, 84, 90, 107, 109, 115 P Paris Declaration on Aid Effectiveness, 50 R Racism, 30, 80, 81 Rape, 7, 16, 93, 101 Reconciliation, 15, 17, 18, 20–22, 25, 81, 105, 106, 108, 109 Red Cross, 47, 48 Reinisch, August, 6, 6n14, 45, 56, 58 Reparations, 18, 20, 27, 28, 33, 35, 37, 38, 40, 40n18, 41, 71n1, 73–75, 89, 90, 102–106, 108, 115

140 

INDEX

Reparative justice, 2, 6, 8, 11–13, 12n32, 15–35, 37, 39, 39n15, 40, 47, 54, 62, 63, 69, 71, 71n2, 72n3, 73–75, 76n13, 78–80, 83, 89, 96, 97, 100, 102–111, 115, 117 Restorative justice, 15–18, 20, 21, 25, 32 Robinson, Mary, 42 Rombouts, Heidi, 91, 94 Ruberangeyo, Theophile, 90, 98 Russell, Bertrand, 23, 24 Russell, David, 88 Ruvugiro, Emmanuel, 89 Rwandan Constitutions, 107 Rwandan Parliament, 97 S Sante, Mutelle de, 77 Save the Children, 9n26, 48n50, 65, 67–69, 80, 80n23, 82, 84, 107, 115 Scandinavia, 17 Scott, T. Jeffery, 47, 63 Send-A-Cow, 78 Sexual violence, 7, 7n19, 28, 31, 31n38, 32, 93, 94 Sierra Leone, 22n19, 31, 73n7 Sikkink, Kathryn, 59 Smirl, Lisa, 9 South Africa, 23, 59 South African Truth and Reconciliation Commission, 23 Stephenson, Helen, 66, 67 SURF Survivor’s Fund, 7n15, 8, 19, 72, 73n7, 87, 88, 93n51, 109, 114, 114n17, 117n19 Survivors, 2, 15, 38, 71, 107 T Trauma, 7n19, 22n20, 25, 26n25, 27, 29, 73, 86n37, 94, 101, 113, 114

U UK Dept. for International Development (DFID), 72, 100, 112 UK Parliament, 67 UN Basic Principles and Guidelines on Development Based Evictions and Displacements, 43 UN Convention Against Torture, 39 UN Convention on the Rights of the Child, 39 UN General Assembly, 30, 31, 37n3, 42, 79 UN Guiding Principles on Business and Human Rights (Ruggie Principles), 11, 50, 51 UN Human Rights Commission, 46 UNICEF, 1n3, 30, 99, 100 United Nation (UN), 1n3, 3, 11–13, 30–33, 42, 43, 59, 74, 78, 84, 107, 109, 111, 112, 115, 117 Universal Declaration of Human Rights (UDHR), 37, 41–43, 49, 52 UN Norms on the Responsibility of Transnational Corporations, 53 UN Security Council, 33 UN treaties, 59 Uvin, Peter, 5, 80–82 W Widows, 31, 31n38, 72, 88, 90, 91, 93, 94, 101, 104, 110, 112 Wilson, Richard, 20 World Vision, 48n50, 60, 61, 65, 79, 80, 82, 84, 107 Y Yad Vashem, 24 Z Zehr, Howard, 18