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In-Depth:
Justice for a Lawless World? Rights and reconciliation in a new era of international law
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 Download this in-depth report
Part I 6.36 MB
Part II 2.40 MB
- Professor Noam Chomsky
- ICC Chief Prosecutor Moreno Ocampo
- Samantha Power, Professor of Practice in Human Rights Policy
- Juan Mendez ,President of the International Center for Transitional Justice
- Justice Geoffrey Robertson Q.C.
- Dr Fanie du Toit, Programme Director for Educating for Reconciliation at the Institute for Justice and Reconciliation in South Africa
- Abdullah An-Na`im, Ph.D, Charles Howard Candler Professor of Law at Emory University, Atlanta, GA, USA
- Augustin Nkusi, the Director of the Legal Support Unit, National Service of Gacaca Jurisdictions, Rwanda
- Benjamin Gumpert, counsel representing Justin Mugenzi, who is currently on trial at the International Criminal Tribunal for Rwanda
- Hanny Megally, Director, Middle East and North Africa Program, International Center for Transitional Justice (ICTJ)
- Paul van Zyl, Country Programme Director at the International Center for Transitional Justice (ICTJ)
- Johnston Busingye, Secretary General of the Ministry of Justice in Rwanda
- Dennis McNamara (Special Adviser on Internal Displacement to the UN’s Emergency Relief Co-ordinator and Director of the OCHA Inter-agency Internal Displacement Division) on the rule of law
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RWANDA: Neither forget nor forgive: Justice in Rwanda
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Billboards in Kigale call people to take part in the Gacaca courts. "If you tell the truth you can be forgiven or the punishment is reduced."
Credit: IRIN |
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Rwanda is a country that has become synonymous with genocide. The figure given by the current Rwandan government is that one million Tutsis and moderate Hutus were slaughtered in the 100 days between April and July 1994. Twelve years on, the country is dealing with the legacy.
The capital, Kigali, bears all the hallmarks of a poor country being patronised by richer nations. Roads have been built in the capital and to every major urban settlement with donor funds. Shiny four-wheel-drive vehicles, driven by foreign aid workers, cruise along the freshly tarmac-ed streets. The collective guilt of an international community that stood by and failed to act in the face of such an atrocity is almost palpable. But there is a question as to whether these efforts are helping a country deal with its past.
The efforts to help the country come to terms with the effects of the genocide occur daily. Different NGOs have set up programmes to provide assistance to those traumatised and to promote dialogue in the communities. Assistance and anti-retro viral drugs are given to those with HIV/AIDS (which spreads rapidly after a genocide), as well as to victims of rape. The quest for justice is also a major consideration when dealing with the past.
Justice for the community, by the community
The genocide is officially remembered every year on 7 April, the date that the Interahamwe set up roadblocks around the country and began what they termed their “public work” of exterminating an ethnic group. Purple bunting hangs from public buildings, flags fly at half-mast, and the newspapers are full of government messages stating “Never Again”. The image is of a country united in its grief and horror at the events of the past; of people remembering their dead, in the same way as other countries mourn those lost in a war. The emphasis seems to be on recognition, healing and justice.
The genocide in Rwanda is most notorious for the rate at which killing occurred; a rate which far oustrips even the Holocaust. The high rate of killing was made possible as Hutus murdered their neighbours with machetes.
”Rwandans often speak of a million deaths, and they may be right. The dead of Rwanda accumulated at nearly three times the rate of Jewish dead during the Holocaust. It was the most efficient mass killing since the atomic bombings of Hiroshima and Nagasaki”.
from the preface of Philip Gourevitch’s book “ We Wish To Inform You…”
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Despite the number of people involved, the Rwandan government has said no to any form of impunity. Often other countries that have experienced widespread atrocities have chosen to prosecute the main instigators but not prosecute the ordinary people. However, Rwanda has declared that justice must be done at all levels.
After preliminary investigations were concluded, it was estimated that 100,000 people would need to be prosecuted. As Caroline Stainier, of Avocats Sans Frontieres, points out: “No ordinary courts could digest that quantity and give them a fair trial in a decent amount of time”, much less courts emerging from a society ravaged by genocide and exodus. The gacaca procedure was chosen as the best alternative to the problem.
Gacaca literally means grass, but also refers to a traditional justice procedure in Rwandan society. Local-level courts that were traditionally used by village communities would gather on a patch of grass to resolve conflicts - usually between families - using the head of each household as a judge. Faced with the dilemma of wanting to reject impunity, yet aware that the ordinary courts could not handle the number of trials required, the Rwandan government introduced the “gacaca process”. The law provided for gacaca courts to be set up throughout Rwanda to try certain cases relating to genocide.
The gacaca courts are able to retain most of their traditional elements; they are essentially community courts, run by members of the community with no legal background. There are nine Inyangamugayo, literally meaning ‘people of integrity’, who are elected by the people in the community to serve as judges. They receive one week of training on the gacaca law and process. They are not paid, although they receive some minor benefits from the state. There is no official prosecutor and no counsel for the defence. The gacaca courts are supposed to be held one day a week, and the entire community is obliged to attend.
The gacaca courts currently only hear what are called Category 2 crimes (murder, physical injury and rape) and Category 3 crimes (theft and other property issues). Category 1 crimes, being those who encouraged or directed the genocide, or organised or perpetrated particularly brutal murders, are heard in the Rwandan courts.
There are currently two levels of gacaca court, although a third has been proposed: the secteur level which has the authority to hear Category 2 crimes, of which there are 1,545; and the cellule level, which has authority to hear Category 3 crimes, of which there will ultimately be approximately 10,000. The investigations are undertaken at the cellule level.
The scale of the undertaking is immense. In March 2002, the pilot phase began at the secteur level (limited to 118 secteurs), out of the total 1,545. These 118 secteurs are the only courts that have to date made final judgments. In January 2005, the process was rolled out at the cellule level across the country, and these are all involved in the information gathering stage.
There are 169,000 gacaca judges in all.
Diluting justice
Prisoners carry out a dead body from Kigali's central prison, 1995. Tens of thousands of mainly Hutu prisoners were held in poor conditions for years without trial. The under-resourced Rwandan courts were overwhelmed following the genocide.
Credit: IRIN
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The gacaca process is revolutionary in that it is a formally drafted, yet at the same time, traditional procedure. Reaction to it has been mixed. Certain observers believe that the gacaca courts do not provide the defendants with any of the protections normally afforded them, and that as a result, rough justice is being handed out.
Benjamin Gumpert, who acts as counsel for the defence of Joseph Mugenzi, a man being tried before the International Criminal Tribunal for Rwanda (ICTR), has said: “I think the idea of people’s justice is in theory delightful. However, I think that the Rwandan people are no more likely than any other ordinary people (by that I mean non-lawyers) of being able to conduct complicated trials of genocide. There is little chance of justice in these circumstances.”
“I think either you can hold a fair trial or you cannot. But I do not think that you can dilute the principles of justice. There seems to be an element of double standards at play here. You are effectively saying that the manner of trial that we consider appropriate in courts in North America, Europe or other international proceedings does not need to be observed in Africa.”
Others are more circumspect. Alison Smith, of the NGO No Peace Without Justice, believes that the gacaca process could form “part of a range of measures to try to bridge the impunity gap”. However, she points out that the gacaca process in its current incarnation is: “…not really traditional justice. It is what I would call neo-traditional. By that I mean it has been adapted from what it was, essentially a forum for resolving civil disputes, to one where criminal cases are heard.” She also expressed some concern as to whether the courts were fulfilling due process rights of defendants, or even promoting the rule of law.
Defending gacaca
Those working in the justice system in Rwanda are quick to defend the process, arguing that the critics have not fully understood the procedure. Johnston Busingye, the Secretary General of the Ministry of Justice, underlines that the process has more than one dimension: “Western models of justice are okay in certain contexts. In any case, I do not think there is one agreed model of western justice. Traditional justice is also helpful in specific circumstances like our own where we really needed to address a number of issues not simply an ‘eye for an eye’ type of justice.”
“Gacaca cuts across the whole range of issues that we are looking at: punishment, teaching the public a lesson, reconciliation etc. There are a lot of things which are addressed by traditional justice. It addresses issues of unity, issues of reconciliation, transition itself, getting out of the ugly past and walking to a better future in a society that was divided but is becoming reconciled.”
The NGO Avocats Sans Frontieres has been involved both in the training of judges and in monitoring the gacaca process since its inception. Stainier accepts the differences between gacaca and ordinary courts of law, but says: “As an alternative, it should be respected. That does not mean we did not have doubts, and still do.”
Their doubts centre on the extent of power in the hands of the judges. “Most judges seem to work with an enormous amount of goodwill, especially given the size of the task and the fact that they are not paid. But goodwill is not always enough. They often do not have the requisite skills to conduct discussions and ask the right questions. And at the end of the discussions, it is not always clear what has been decided or even why a decision has been taken.” This runs counter to fundamental legal principles of fairness and clarity. And yet these judges have the power to imprison people for up to 30 years.
It is the possible amendment to the current gacaca law that is particularly worrisome to Avocats Sans Frontieres and other NGOs at this time. A revised bill was issued in September 2005 that proposed that Category 1 cases should be heard in national gacaca courts, not in ordinary courts as they had been up until then. Avocats Sans Frontieres, along with Penal Reform International, RCN Justice & Democratie and The Danish Centre for Human Rights, have written a letter to the National Service of Gacaca Jurisdictions, the Rwandan body that runs the gacaca process, protesting the new law.
They point out that there are 10,000 people detained on Category 1 charges, who could be liable for the death penalty, and accordingly deserve a full hearing. Between 1997 and 2003, the ordinary courts were judging 1,000 people per year, but since 2003, all activity with respect to genocide trials has stopped. If the motivation for moving the cases to a new national gacaca court is speed, then why there has been no progress on genocide cases since 2003?
Quest for compensation: money talks
The logo of the International Criminal Tribunal for Rwanda based in Arusha Tanzania. Although successfully convicting dozens of genocide perpetrators the courts have been widely criticised in Rwanda for being expensive, slow and convicting a tiny proportion of those guilty.
Credit: ITCY
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The Rwandan government has been talking about compensation, but so far, no money has been forthcoming. The idea of compensating for the loss of family members may seem at some level bizarre or even insensitive. However, the fact is that Rwanda is an extremely poor country and many people support themselves by subsistence farming. In that context, the loss of family can have an economic as well as emotional cost. The theft of property that many Tutsis experienced has also meant that many survivors of the genocide have been left further impoverished.
Stainier, of Avocats Sans Frontieres, notes the effect that this has had on the gacaca process. “The gacaca judges only have the power to order compensation for goods which were stolen or destroyed. This can sometimes lead to trials where the debate focuses more on the theft of a goat, rather than on the children who were killed”, said Stainier. Although she adds: “Perhaps that is just because it is more difficult to discuss the loss of loved ones.”
Prisoners in pink and the outside threat
After putting an end to the genocide in 1994, the Rwandan Patriotic Front (RPF) rounded up all those suspected of complicity in the genocide and imprisoned them. Ten thousand in all were captured. The basis on which the suspects were gathered seemed to outside observers to be arbitrary. The journalist, Aidan Hartley, reported that among those accused of genocide, he found “an inmate of seven [years of age] and a paraplegic who had been confined to a wheelchair for 20 years”. The prison system could not cope with the numbers being detained, and hundreds of prisoners were crammed into cells designed to accommodate less than a tenth of the number of people. Conditions were dire.
As images of these people rotting in prisons in their standard issue pink pyjamas were broadcast around the world, international outrage heightened. Some thought the conditions, which were like a medieval vision of hell, were an acceptable punishment for those accused of genocide; others thought that prisoners should not be denied the most basic human rights, regardless the crimes of which they were accused. As the government in Kigali pointed out, criticisms from the international community were meaningless unless backed by adequate funding for prison renewal.
The majority of those who were responsible for the worst crimes fled as the RPF advanced. The wealthier fled to sympathetic African or European states; those less priveleged headed into neighbouring Zaire, now called the Democratic Republic of Congo. In the summer of 1994, an estimated two million Hutus flooded over the border. There has been ongoing fighting around the border ever since, in what the Rwandan government claims is defensive action against an outside threat, and others have called a counter-genocide.
Capacity
Piles of arms left by fleeing Hutu entering DRC at the end of the 100 days of slaughter that left almost one million dead.
Credit: IRIN
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Many of the 100,000 alleged killers detained in 1994 have since been held, awaiting trial. The fact that so many people still wait in prison to have their cases heard, 12 years after the genocide, is a “travesty of justice” in the words of Benjamin Gumpert. However, Johnston Busingye pointed out: “This was part of our unique situation in that immediately after the genocide the whole country was devastated, including manpower, legal capacity and traditional justice capacity.” Some steps have been taken to reduce the problem.
In August 2005, 20,000 prisoners were released by presidential decree. These were people who had confessed to a crime relating to the genocide, and who had already spent longer in prison than their crime merited under Rwandan law. This was the third wave of releases, which began in 2003. The number of genocide suspects in prison fluctuates, as some are released, some have died, and further suspects have been interned as a result of gacaca investigations.
This process of release has had other consequences; some people who were imprisoned for reasons unconnected to the genocide have been coming forward to confess to genocidal crimes on the basis that they might be released earlier. Not all the survivors are pleased with the releases. Even though the former detainees will still have to go through the gacaca process, the victims feel that their liberty before trial is an insult and a rejection of the suffering the victims went through.
Information gathering
“these traditional forms of justice are not single-issue courts; they have a wider scope and role in terms of keeping society as peaceful as it can be”
Johnston Busingye -Secretary General of the Ministry of Justice in Rwanda.
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One point that most observers agree upon is that the information collection phase of the gacaca process is a useful tool, not only for uncovering the people responsible for committing various acts, but also because it can provide information as to where some of those murdered have been buried. One woman in a village on the outskirts of Kigali, who has lost her sister as well as other members of her family, recounted how an accused person had confessed to the crime and indicated where her sister was buried, allowing the body to be exhumed and reburied in consecrated ground. The knowledge of where her sister lay let the woman move through the grieving process: “I am at peace now. I can move on.”
There have been suggestions that instead of trying to set up traditional courts, a truth and reconciliation commission would have served the same purpose without dividing the community. Information would have been unearthed, and the victims would have had a chance to tell their story, without the rights of defendants being jeopardised.
Since the information collection phase, the estimated number of people who have been accused has swelled to 800,000. As impunity is not tolerated, all these cases will need to be heard.
One NGO worker, who has been monitoring the gacaca process, commented: “The idea of absolutely no impunity is over-ambitious, almost counter-productive. It would have been better to focus on those who were most responsible.”
Other choreographers of mass murder
The living and the dead in Rwanda 1994.
Credit: Corinne Dufka
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Corinne Dufka, of the NGO Human Rights Watch, draws a contrast between the approach of the Rwandan government and that in Sierra Leone. During the 10-year civil war in Sierra Leone, which ended in 2000, countless atrocities were committed. She agrees that “the profound culture of impunity” that had existed in Sierra Leone needed to be tackled, but does not agree that the correct way to achieve that is by prosecuting every member of the lower ranks: “It is the choreographers of the whole process who most need to be made accountable for their actions.”
Sierra Leone also relied to some extent on traditional methods, but only to address the crimes of the lower-level perpetrators. “For years after the war, there were informal procedures going on in communities throughout Sierra Leone in which people would admit their guilt and be cleansed before being accepted back into the community.”
However, as Dufka points out, the situations cannot be compared in one fundamental respect: “In Sierra Leone 85 percent of those fighting with the rebel forces had been forcefully abducted. There is a fine line between victim and perpetrator in those circumstances.”
Reconciliation: the view from the ground
Many Rwandans will assert that the country is on the road to some sort of reconciliation. The terms Hutu, Tutsi and Twa are no longer accepted. According to one survivor: “We are all Rwandans now.” However, it is not clear how deep the idea of reconciliation cuts.
The words Hutu and Tutsi may not be used, but there is an awareness of which “tribe” people come from, especially in the smaller towns. There is also a certain feeling of paranoia that pervades the country. People are reluctant to voice any criticism. The few who do seem wary and talk of “potential repercussions”.
One villager said that he had been imprisoned for three months for missing one gacaca session, despite having submitted a request for his absence. He said that the gacaca was a great idea, but that the president of each court had too much power, which was often abused for personal reasons: “He wants me off my farm, so he sent me to prison for three months.”
Others say that the Tutsis, despite being the minority, have all the power and that Hutus are removed from positions of authority. One NGO worker spoke of a gynaecologist in Butare, Dr Pasteur Habaruka, who was commonly believed not to have been involved in any genocidal activity, but who was recently thrown into prison because “they do not like Hutu intellectuals”.
Theoneste Bagosora was Director of the Cabinet in the Ministry of Defence and a high-ranking officer of the Rwandan Armed Forces during the Rwandan genocide. He is accused of genocide, crimes against humanity and war crimes, and is currently on trial at the International Criminal Tribunal for Rwanda in Arusha , Tanzania.
Credit: TrialWatch
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Criticising the gacaca process, or even the regime in Rwanda, can have serious consequences. Several NGOs were forced to move out of Rwanda as the government accused them of having “a genocidal ideology”. At all levels of government, there is a concern, almost a suspicion, that outsiders may have a desire to downplay the magnitude of the genocide. As Augustin Nkusi, the Director of the Legal Support Unit for the National Service of Gacaca Jurisdictions warns: “Unfortunately in places like Belgium there are a lot of people who try to say that there was not a genocide. They sometimes spread misinformation, also about processes such as the gacaca process. It would be better if they were to return and we could work together to build a future in peace.”
It is hard to disentangle the complex webs of suspicion and distrust to find the ‘truth’ of what is going on in Rwanda. Reaction to the current events there differs hugely depending on who is being asked. Some have expressed their concerns by escaping. In 2005, after the gacaca process was rolled out at the cellule level across the country, according to the NGO Refugees International, approximately 10,000 Hutus fled Rwanda to refugee camps in Burundi, claiming that they feared reprisals in the gacaca courts.
Yet the gacaca process has had some proponents, although their number does seem to be dwindlng with the prospect of the introduction of a new law. At the least, Rwandans do feel that the gacaca process is relevant to them and part of their lives; whereas the ICTR is a remote entity about which they know and care little about. The fact that the ICTR has to date, 12 years after it was set up, only convicted 24 people, of whom eight are still appealing their convictions, does not enhance its image.
The gacaca courts were set up to provide a zero tolerance approach to impunity for anyone who was involved, no matter how small the involvement, in the genocide. They were also meant to commence the process of healing a divided society, but many feel that the courts are actually deepening divides. As Stainier replied to a question about the link between justice and reconciliation: “Sometimes I think too much is expected from justice. Justice does not equate to reconciliation. A fair justice is only one step on the road towards and reconciliation, which is something organic, something which cannot be decreed.”
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