Rwanda: In Search Of Justice

Rwanda: In Search of Justice Class: Critical Issues Instructor: McCutcheon By Carsten Kaefert (3012875) Table of Contents Rwanda: In Search of Justice...........................................................................................................1 Introduction.................................................................................................................................3 The ICTR ...................................................................................................................................4 History and Function..............................................................................................................4 Success to date............................................................................................................................6 Shortcomings..........................................................................................................................7 The Gacaca System.....................................................................................................................8 A Failing Legal System..........................................................................................................8 Justice from the People: Gacaca Courts...............................................................................10 Appraisal...............................................................................................................................13 Failing to Heal Rwanda........................................................................................................14 Conclusion.................................................................................................................................15 Bibliography..............................................................................................................................17

Introduction The Rwandan Genocide deserves a special place in history books. Not only because it did happen right under the eyes of a world looking the other way. Neither only because it was ghastly effective, killing at least 800'000 Tutsi and moderate Hutu in just about one hundred days, which makes it the fastest recorded genocide in history.1 But shocking numbers and unimaginable cruelty have little lasting value, making the Rwandan genocide important rather because atrocity on this scale can teach us important lessons. Lessons about how to prevent such man-made disasters in the future. Some lessons have already been learned: The policies for international response and intervention, for example, have been influenced by the Responsibility to Protect framework, which explicitly names Rwanda as a reason for its independence.2 However, this comes too late for the atrocities ad genocides of the nineties. Somalia,3 Bosnia and Rwanda face the aftermath of the events that shattered their societies. For the latter two one question proved to be of special importance: How to deal with the perpetrators? Especially in Rwanda this turned out to be a challenge, as both participation and victimization by the genocide were close to universal: The grounds for a common future seemed thoroughly poisoned. Reconciliation was not more than a word with the country's Hutu and Tutsi demographics ogling each other with deep distrust. Over time, three different systems to deal with the perpetrators of the genocide came into being: The formal Rwandan legal system, the International Criminal Tribunal for Rwanda (ICTR) and as of late the Gacaca system of (semi-) 1 Cf. Lyn S. Graybill, “Pardon, Punishment, and Amnesia: Three African Post-Conflict Methods,” Third World Quarterly 25, no. 6 (2004): 1120. 2 Gareth Evans, Mohamed Sahnoun et al., The Responsibility to Protect. Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Center, 2001), VII. 3 For Somalia “aftermaths” is only partially correct, as the conflict is going in the country. Carsten Kaefert: Rwanda: In Search of Justice→Introduction | Page 2/16

traditional village, district and provincial courts. This article deals with the latter two, as both international criminal justice and traditional courts are seen as chances to achieve reconciliation where other means of justice are either not available or not able to fulfill their function.

The ICTR History and Function Building a New Court

Formally, the International Criminal Court for Rwanda came into existence less than half a year after the genocide. The United Nations Security Council passed resolution 955 in November 1994, thus establishing the court.4 Nevertheless should it take several more years till it became operational, let alone reached a verdict for the first time. The court's initial staff was led by presiding judge Laïty Kama, although Richard Goldstone, the first chief prosecutor, drew by far more public attention. His tight schedule – he fulfilled the same position in the International Criminal Court for Yugoslavia – also did not do much to speed up the creation of the ICTR.5 Despite this, the Office of the Prosecutor (OTP) was the first part of the court to become operational, setting up an investigative office in Kigali.6 The location of the court was after failed negotiations with Kenya determined to be in the Tanzanian town of Arusha, where a provisional courtroom and administrative offices were set up in a convention center in November 1995.7

4 5 6 7

Cf. Graybill, Pardon... 1121. Cf. Helene Cobban, Amnesty after Atrocity? (Boulder: Paradigm Publishers, 2007), 45. Cf. ibid. Cf. ibid. Carsten Kaefert: Rwanda: In Search of Justice→The ICTR | Page 3/16

Already in May of that year, the judges of the court were named and two months later, in July, the court finally gained a proper budget from the United Nations, thus enabling it to pursue its creation further.8 The judges were condemned to a great deal of inactivity, aside from occasionally confirming the OTP's indictments, which then was followed by even more waiting: due to the ICTR's lack of any law enforcement capability, the OTP had to rely on the goodwill and cooperation of governments to get defendants before the court. 9 The first defendant arrived in Arusha not before May 1996, with the trial not starting before January 1997 – almost three years after the genocide.10

Nuremberg in Africa

The tribunal was inspired in many of its workings by the Nuremberg trials. It aimed at the most culpable people as well as people from relevant sectors of society, with the aim to both punish perpetrators as well as educate the world about how the genocide came to be. As a result of this, indictees were often grouped into -and tried in – occupational categories.11 The similarities to the Nuremberg trials did not stop there – and they were far from coincidental.12 This is also expressed by drawing upon two principles of the Nuremberg trials: “that people should be held responsible as individuals for all their harmful actions, including those perpetrated in a time of war”13 and “that the new court leave behind an incontestable record of the atrocities”14 Another area where lessons from Nuremberg were learned is the legal

8 Cf. ibid. 46. 9 Cf. ibid. 10 Cf. “The Tribunal at a Glance,” International Criminal Tribunal for Rwanda, http://69.94.11.53/ENGLISH/factsheets/1.htm (accessed: 2008-12-05). 11 Cf. Cobban, Amnesty... 47. 12 Cf. ibid. 13 Ibid. 48. (italicization from original) 14 Ibid. 49. (italicization from original) Carsten Kaefert: Rwanda: In Search of Justice→The ICTR | Page 4/16

system that is used by the ICTR, as both of them incorporate some parts of a civil law system (like it is the tradition in Rwanda and Germany) into the common law system predominant in the anglophonic world, thus creating a kind of international justice.15 Despite the similarities in their aims and principles, the ICTR and the Nuremberg trials have some principal differences as well. Most fundamentally is probably the fact that Nuremberg was a military tribunal, causing quite a difference in how the trials were held. That made the court's work by far easier, as the demands regarding protection for the defendants are considerably lower in a military tribunal than they are in a modern day civil court. Additionally although both dealt with genocides of unmatched dimensions, the crimes they had to deal with were quite different: While the German genocide was heavily industrialized and thus left a considerable paper trail behind, the crowdsourced Rwandan genocide lacked any kind of comprehensive documentation on the side of the perpetrators.16

Success to date Whether the Rwandan tribunal is as successful as the Nuremberg trials were, is written on yet another page. Although it is widely seen as being just of minor success, it has some achievements to show off. Perhaps the most symbolic one is the conviction of Jean-Paul Akayesu: The former Bourgmestre (mayor) of Rwanda's Gitarama province was the first person ever to be convicted on charges of genocide by an international court.17 Thus it had achieved two things: it had for the first time interpreted the UN definition and had undercut the possibility of genocide denial,18 which is alive and well in Rwanda.19 A similar achievement has been reached 15 16 17 18 19

Cf. ibid. 48. Cf. ibid. 49. Cf. ibid. Cf. ibid. 52. Cf. Jeremy Sarkin, “The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Carsten Kaefert: Rwanda: In Search of Justice→Success to date | Page 5/16

with the conviction of the completion of its “media case” in 2003, which was the first of its kind since the Nuremberg trials.20 To date, the ICTR has completed 34 cases,21 which means it has improved its performance by a significant margin since its first mandate.

Shortcomings Despite the positive developments, criticism still overweighs appraisal of the ICTR. Unexperienced personnel is one of the central points towards this end. Although being highly qualified legal scholars, the judges actually lacked the experience on how to run a court room, which initially substantially slowed down the proceedings.22 Closely connected to this appears to be a lack of professional conduct. Human rights activist André Sibomana is quoted as saying:

I have met some of the ICTR officials; I am amazed by their incompetence[...] They are incapable od approaching those who lived through the genocide. They don't ask the right questions. People are offended by their attitudes and their discourse.[...] 23

Similar concerns are held against the tribunals treatment of witnesses in front of the court. Not only are they sometimes surprised by the adversarial nature of cross-examinations in

20 21 22 23

Process and the Role of the Gacaca Courts in Daling with the Genocide,” Journal of African Law 45 no.2 (2001): 150. “Achievements of the Tribunal,” International Criminal Tribunal for Rwanda, http://69.94.11.53/ENGLISH/factsheets/achievements.htm (accessed 2008-12-05). Cf.“Status of Cases,” International Criminal Tribunal for Rwanda, http://69.94.11.53/ENGLISH/cases/status.htm (accessed 2008-12-05). Cf. Cobban, Amnesty... 45. Ibid., 53-54. Carsten Kaefert: Rwanda: In Search of Justice→Success to date | Page 6/16

common law trials, there are also reports on retraumatization, especially of rape victims.24 Rumors of genocide perpetrators in the defense teams, thus on the tribunals payroll, 25 have further weathered down the trust and respect the ICTR enjoys in the Rwandan public.26 Further detrimental effects on the courts credibility within Rwanda have had cases where witnesses could not be protected from retribution after giving their statement in court.27 But most concerning is the ICTR's failure to achieve one of its most fundamental goals: to foster reconciliation in Rwanda. Although being especially designed to achieve this end, 28 it has so far failed due to a whole number of reasons. First of all, as an international court located outside of Rwanda, it is as obviously unfit for the task as it can get. 29 Even if the tribunal was designed differently, it might still be the wrong tool for the job, as in Rwanda's case justice seems to be opposite to reconciliation by means of reiterating social rifts and divisions.30 Last, but not least, the ICTR has proven to be an extremely costly measure. By 2005 the funds the court had consumed fund of over one billion US-$ - money that could arguably have been better invested.31

24 25 26 27 28 29 30 31

Cf. ibid. 51. Cf. ibid. Cf. ibid. 57. Cf. Rakiya Omaar, Alex de Waal, Rwanda. Killing the Evidence. Murder, Attacks, Arrests and Intimidation of Survivors and Witnesses (London: African Rights, 1996). Cf. Lilian A. Barria, Steven D. Roper, “How Effective are International Criminal Tribunals? An Analysis of the ICTY and the ICTR,” International Journal of Human Rights 9, no. 3 (September 2005): 363. Cf. ibid. Cf. Graybill, Pardon... 1121. Cf. Cobban, Amnesty... 50. Carsten Kaefert: Rwanda: In Search of Justice→Success to date | Page 7/16

The Gacaca System A Failing Legal System The Rwandan genocide was not only exceptional in its speed and size, but also in the number of people that were incarcerated as suspects of acts of genocide afterwards. A non-trivial part of the population was held imprisoned, the numbers reach into the six-digit range.32 It is obvious that this was a task the Rwandan legal was not up to. In fact, well-equipped western countries of a size similar to Rwanda would most likely have failed to get it done. 33 A country which did not suffer from the effects of a catastrophic genocide leaving most judges either dead or displaced and many facilities inoperable, that is. Nevertheless, the Tutsi-led post-genocide government, was eager to try every single suspect. To help with this, a Genocide Law was introduced that sought to make trials easier by dividing the perpetrators into four categories:

Category 1: Planners, organizers, instigators, supervisors and leaders of the crime of Genocide or of a crime against humanity; persons who acted in positions of authority; notorious murderers ... [and] persons who commited acts of sexual torture or violence. Category 2: Perpetrators, conspirators or accomplices of intentional homicide or of serious assault against the person – causing death. Category 3: Persons whose criminal acts or whose acts of criminal participation make them guilty of other serious assaults against the person. Category 4: Persons who committed offenses against property.34

32 Cf. ibid. 64. 33 Cf. Sarkin, The Tension... 160. 34 Cobban, Amnesty... 62. Carsten Kaefert: Rwanda: In Search of Justice→The Gacaca System | Page 8/16

Despite this law and international assistance in fast-tracking the training of further legal professionals,35 there was no end in sight: At one point the backlog was estimated to be 160-200 years long, just counting the genocide cases and assuming no other cases are heard in between.36 In the meantime, conditions within the prisons became unbearable and the pressure on the government rose to find another solution. The lock-up of hundreds of thousands, most of them able-bodied and in their productive age, put considerable stress on the Rwandan economy and social structure, which were already struggling from the genocide and continuing violence within the country.37 Furthermore, such a number of Hutu inmates in the hands of a Tutsi-dominated government did not help with reducing tensions among the two groups as well. A “modus vivendi”38 had to be found.

Justice from the People: Gacaca Courts The Historic Gacaca System

The Gacaca system promised exactly this kind of solution. It's historical roots reach back to pre-colonial times and it has been used for “ domestic disputes involving property settlement and the like.”39 Being “inherently a participatory and communal enterprise”,40 it is widely supported by and known to the population. Hobban provides an example by Filip Reyntjens of a dispute about the size of a debt that illustrates the traditional Gacaca workings beautifully:

35 36 37 38 39

Cf. ibid. Cf. ibid. 64. Cf. ibid. 59, 64. Ibid. 64. Erin Daly, “Between Punitive and Reconstructive Justice: The Gacaca Courts in Rwanda,” New York University Journal of International Law and Politics 34 (2002): 371. 40 Cf. ibid. 376. Carsten Kaefert: Rwanda: In Search of Justice→The Gacaca System | Page 9/16

According to Reyntjens, about sixty men and women of varied ages took part in the hearing, joining in with shouts to express support or opposition to the different arguments made. Nine local elders seated on a bench directed the proceedings. After an hour of discussion, the “defendant” said that the other woman's account of the debt was was indeed accurate, and that she would pay the whole amount. The people gathered around them debated what “damages” she should additionally pay to the community for having caused a disturbance of the peace. The size of this fine was later set at ten bottles of banana beer, which would be contributed to the community. “The reconciliation would then be celebrated later in the course of a little feast,” Reyntjens wrote.41

This approaches power is instantly obvious: Not only is the conflict at hand settled, but there is also chance for bonding within the society and thus to bridge any rifts that the dispute might have caused within the community.

Gacaca and the Genocide

Out of year long deliberations on a leadership-level came the idea to transfer the principal of the Gacaca court to the genocide trials.42 This was not to be an easy task, because as aforementioned the Gacaca courts did not usually deal with serious crimes such as murder, but rather with property disputes within the community – a departure that was also acknowledged bz Reyntjens.43 Implementing this system should accordingly become a task almost as enormous as the one waiting for the formal justice system. The sheer size of the task is explained by two factors: The hierarchical structure of Rwanda, which builds upon more than 9000 “cells” (each about ten to twelve families), six to ten 41 Hobban, Amnesty... 68. 42 Cf. Cobban, Amnesty... 64. 43 Cf. ibid. 68. Carsten Kaefert: Rwanda: In Search of Justice→The Gacaca System | Page 10/16

which are grouped into the next unit, “sectors”, which make up “districts”. The districts in turn are grouped into provinces. Gacaca courts were to be employed on all of these levels. The second factor explaining the size of the task was the government's plan to include every single adult Rwandan in the system. Every cell was to elect 25 judges, 19 for its own court and six for the district level – more than 170'000 persons altogether!44 For the judges there was a set of requirements:

They must be people of integrity, honesty, and good conduct who have never been sentenced to more than six months in prison and are above suspicion of involvement in genocide or crimes against humanity. They must be 'free of sectarian and discriminatory attitudes' and known for a spirit of encouraging dialogue.45

Elections were held in 2001 and around 260'000 judges elected. They were to receive a few hours of training.46 The courts are organized following the hierarchical Rwandan structure and the aforementioned Genocide Law, with the Gacaca courts on the cell-level just presiding over crimes of category four, with every higher instance also dealing with crimes one category more serious. As the severity of the crimes rises, also the level of appeals escalates in such a way that every level can hold appeals of the levels below it (with the logic exception of the cell level, of course).47

44 45 46 47

Cf. ibid. 69. Daly, Between... 372. Cf. ibid. Cf. ibid. 373. Carsten Kaefert: Rwanda: In Search of Justice→The Gacaca System | Page 11/16

Together with the external structure, the implementation of the Gacaca system for the genocide trials also introduced a further inner differentiation in the courts. First of all a general assembly that at the bottom level comprises of all the adults within the cell and at the higher levels is made up of delegates. This assembly “functions as prosecutor, identifying the crimes, the victims, and the alleged perpetrators and giving evidence to the court.”48 The second part on each level is the Court Council, which is responsible for trying the cases and, if applicable, appeals. Another change to the historic Gacaca courts is the inclusion of women.49

Appraisal The Gacaca courts have a noteworthy potential to improve the situation in Rwanda and even help the country towards reconciliation and, at a very optimistic note, lasting peace. First of all, it enjoys broad popular support with approval rates of up to 80 per cent.50 This is likely due to the many advantages it offers. First of all, it quenches the population's (and government's) thirst for justice and punishment, and that orders of magnitude faster than a formal Western court system could.51 In doing so it fulfills a range of other tasks as well. The feeling of justice having been served can offer closure to victims and survivors, as can the personalization of the perpetrator and his/her admission of guilt. This individualization serves another purpose as well: By giving “the evil” a name and a face, it becomes way harder to demonize a whole, anonymous group for the actions of single members.52 Obviously, this lowers the risk of acts of (mass-) vengeance directed unspecifically against Hutus and can thus help stabilize internal peace.

48 49 50 51 52

Ibid. Cf. ibid. Cf. ibid. 374. Cf. ibid. Cf. ibid. 375. Carsten Kaefert: Rwanda: In Search of Justice→The Gacaca System | Page 12/16

Additionally to these features that are common to measures of punitive justice, Gacaca is also an act of community-building. Elections, assemblies and councils all demand the cooperation and communication of Rwandans, probably across the ethnic divide. Ideally they can define a common idea of justice through this exercise and in the course develop trust in the rule of law.53 Furthermore, the concept is also under aspects of ownership beneficial. This applies on several levels, as the people gather ownership of the justice surrounding them: With the structures of Gacaca being very local and the number of courts enormously high, government influence becomes marginalized.54 But also on a wider scale does this have positive impacts: Gacaca is a originally African solution. Should it prove successful this would be emancipating and empowering for the whole country, perhaps the whole region.

Failing to Heal Rwanda Despite their promise, the Gacaca courts fail to be the cure for Rwandas genocide-related ills. It has, for one, been hard to get the project off the ground at all. One of the problems dogging the revised Gacaca courts has been low popular participation. This already showed in 2003 pilot hearings.55 The overall Rwandan situation offers various explanation for this outcome. Time constraints are one possibility, as the court proceedings are very time intensive: Rwandan are expected to give up one day per week, cutting deep into their already short work week.56 Another factor possibly preventing Rwandans from partaking is the government's policy of forced villageization: Local farmers and returning refugees or expatriates are made live together 53 54 55 56

Cf. ibid. 376. Cf. ibid. 378. Cobban, Amnesty... 71. Ibid. 70. Carsten Kaefert: Rwanda: In Search of Justice→The Gacaca System | Page 13/16

in villages, which not only might be inconvenient, but also lacks a common history. This goes together with a reduced motivation or outright unwillingness to participate in village life and common activities such as the Gacaca courts.57 A drawback bigger still than those rather practical issues lies within the risks of the concept – or every variant of punitive justice. For example, the problem of survivor/witness intimidation also applies to Gacaca. There have already been reports of attacks and even killings of people wanting to testify in front of a Gacaca court. 58 An even bigger problem is the policy of reducing penalties for perpetrator who fully and comprehensively testify: This has lead to a snowball effect and thus ballooning suspect lists. Out of 3'000 expected category 1 suspects have become some 50'000 – the effect was so strong that some thousand Rwandans fled abroad.59 Aside from other problems that are to be expected when applying community justice at such a scale, such as vigilante justice or a lack of due process,60 the most fundamental problem seems to be that any kind of punitive justice is likely to be unsuitable to achieve reconciliation: While promotes community cooperation and thus could so help rebuilding them, “it does so under a cloud of punishment and retribution.”61 Furthermore, the continuing confrontation between defendants and survivors could reinstate group identities and thus deepen the cleavages within Rwandan society.

57 58 59 60 61

Cf. Dely, Between... 379. Cf. Cobban, Amnesty... 72. Cf. ibid. 74. Cf. Dely, Between... 383. Ibid., 385. Carsten Kaefert: Rwanda: In Search of Justice→The Gacaca System | Page 14/16

Conclusion Although Rwanda has seen many attempts at curing its seriously disfigured society by the means of punitive justice, none of them has worked so far. There is the rather innovative approach of the ICTR, which shows some merit, but in the end of the day does not deliver the performance that would justify its costs. There is the classic approach of normal, western-style criminal justice, which failed completely. And there is the approach combining both the established and the new in the revised Gacaca courts, which despite its huge promise suffers from shortcomings so serious that it hardly appears to be a viable option for a country in Rwanda's state. This leads to the question for another alternative. Different suggestions have been made, from a retuned Gacaca system62 to a Truth and Reconciliation Commision63 following the South African model. Given that the recent Rwandan history has practically been without any previous example, it seems only reasonable that the solution to its problems should be just as unusual. Thus, a single measure does not appear to be enough – but a combination of existing and retuned measures bears considerable promise.

62 Ibid., 386. 63 Cf. Sarkin, The Tension... 172. Carsten Kaefert: Rwanda: In Search of Justice→Conclusion | Page 15/16

Bibliography •

Erin Daly. “Between Punitive and Reconstructive Justice: The Gacaca Courts in Rwanda,” New York University Journal of International Law and Politics 34 (2002)

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Lilian A. Barria, Steven D. Roper, “How Effective are International Criminal Tribunals? An Analysis of the ICTY and the ICTR,” International Journal of Human Rights 9, no. 3 (September 2005).

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Rakiya Omaar, Alex de Waal, Rwanda. Killing the Evidence. Murder, Attacks, Arrests and Intimidation of Survivors and Witnesses (London: African Rights, 1996).

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Jeremy Sarkin, “The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Daling with the Genocide,” Journal of African Law 45 no.2 (2001).

•

Helene Cobban, Amnesty after Atrocity? (Boulder: Paradigm Publishers, 2007)

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Gareth Evans, Mohamed Sahnoun et al., The Responsibility to Protect. Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Center, 2001).

•

Lyn S. Graybill, “Pardon, Punishment, and Amnesia: Three African Post-Conflict Methods,” Third World Quarterly 25, no. 6 (2004)

Carsten Kaefert: Rwanda: In Search of Justice→Bibliography | Page 16/16