Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (38 page)

Timothy Longman

University of California, Berkeley

On April 6, 1994, a plane carrying the presidents of Rwanda and Burundi was shot down as it approached the airport in the Rwandan capital, Kigali, killing all on board. The assassination of President Juvénal Habyarimana served as a pretext for launching a long‐planned program to eliminate political rivals to the president and his supporters. Violence was initially focused in the capital, as the presidential guard and other elite troops targeted opposition politicians and civil society activists of all ethnicities. As the group of military and political leaders who assumed control of Rwanda carried the violence into every corner of the country, however, it quickly assumed the clear characteristics of
genocide, since it focused on Rwanda's minority ethnic group, the Tutsi, regardless of their political activity, class, age, or gender. By the time the rebel
Rwandan Patriotic Front (RPF) took control of the country in mid‐July 1994, more than half a million people had been killed.
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In the decade since the 1994 genocide and war, the government of Rwanda has undertaken a variety of programs to attempt to promote reconciliation, combat impunity, and prevent future communal violence. The government has built numerous memorials and established annual commemorations of the genocide, sought to create unity by adopting a new national anthem, flag, and seal, overseen the drafting of a new constitution and various political reforms, and instituted programs, including
“solidarity camps” for students, former prisoners, and returned refugees to teach a revised history of the country. In addition, both the international community and the Rwandan government have undertaken trials of alleged perpetrators of genocide and other crimes against humanity as one means of helping to come to terms with the terrible events that overtook Rwanda. Yet classical judicial responses have proven inadequate to the needs of Rwandan society. The enormity of the crimes and the large numbers of people involved have overwhelmed the capacity of the courts. Many Rwandans have also felt that the ability of courts to contribute to reconciliation is limited, since their activity is removed from the general population, they focus on individual
perpetrators rather than social processes, there is little role for victims in the court process, and there is no attempt to bring restitution to those who suffered.
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In an attempt to meld the desire for justice with the need for reconciliation, the Rwandan government has instituted a novel judicial initiative to try those accused of participation in the genocide that builds upon traditional Rwandan mechanisms for dispute resolution, known as “gacaca”. The new gacaca courts that have been set up throughout the country involve popularly elected panels of lay judges who will oversee open public trials of people accused of lower level crimes. While the alleged organizers of genocide and those accused of rape will still be judged in the Western‐style national or international courts, the vast majority of those alleged to have participated in the genocide will be judged before their neighbors and families and sentenced by a group of their peers serving as judges. According to the laws establishing it,
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the gacaca process will require each community to develop a record of how the genocide occurred in their community and to determine those responsible for carrying it out and those who were victims, and it will establish mechanisms for providing reparations to survivors.
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The purpose of this paper is to assess the gacaca process as a response to mass atrocity with particular attention to relevant human rights issues and logistical and political considerations. To support my analysis, I draw extensively on research conducted under the auspices of the Human Rights Center of the University of California, Berkeley. As part of a wide‐ranging study of the process of social reconstruction in Rwanda, we have conducted an extended qualitative analysis of three local communities in Butare, Byumba, and Kibuye provinces, including observation of gacaca trials; a survey of over 2,091 individuals in four Rwandan communes;
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and interviews with numerous individuals.
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Based upon this research, I contend that despite some human rights, political, and logistical concerns, gacaca has the potential to make an important contribution to the fight against impunity and the search for reconciliation in Rwanda. The ultimate success or failure lies primarily in the will of the public to make the process work, whatever structural and political constraints it confronts.

The government that assumed power in July 1994 made a strong initial commitment to judicial action.
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Installed by the Rwandan Patriotic Front, the rebel army composed primarily of Tutsi refugees from previous waves of anti‐Tutsi violence in Rwanda, the new government saw
holding accountable those who committed atrocities as an essential means of fighting impunity and establishing order. Shortly after taking office, the government began to arrest thousands of people alleged to have participated in the genocide, but trials would not be possible for several years, since Rwanda's legal system had been devastated by the violence, with the vast majority of judges, lawyers, and magistrates dead or in exile. Furthermore, most of the chief organizers of the genocide were in exile, out of the reach of Rwandan prosecutors. Hence, the government of Rwanda formally requested that the United Nations create a tribunal to try those responsible for the 1994 genocide. On November 8, 1994, the Security Council adopted Resolution 955, creating the International Criminal Tribunal for Rwanda
(ICTR), charged with bringing justice to those responsible for “genocide and other systematic, widespread and flagrant violations of international humanitarian law” and with contributing “to the process of national reconciliation and to the restoration and maintenance of peace.”
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While the Tribunal has been successful at obtaining the arrest and extradition of a large number of suspects, it has worked at an excruciatingly slow pace and at a relatively high cost. The first trial at
the ICTR did not begin until January 1997, and by March 2003, only 11 individuals had been judged. By December 2005, the number judged had risen to 26, with an additional 26 accused with cases in progress, and 17 others charged and in detention.
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Furthermore, as I have argued elsewhere, the Tribunal has made very little attempt to influence the process of reconciliation within Rwanda, despite its being mandated to do so.
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Whatever the impact of the
ICTR, it will try only a small fraction of those accused of crimes against humanity in Rwanda, focusing primarily on the chief organizers of the genocide, while the Rwandan domestic judicial system will deal with the vast majority of cases. In the months after the
RPF took power, they arrested thousands of individuals under accusations of participation in the genocide. When
the RPF attacked and closed the Hutu refugee camps in Eastern Zaire (now Congo) in 1996, thousands of additional people were arrested as they returned to their communities, bringing the total number of prisoners to over 120,000 people – nearly 2 percent of the total population. Yet even as thousands languished in poorly equipped prisons, the launch of trials was delayed by a number of factors. Rwanda needed a law to cover the crimes, since although Rwanda was a party to the 1948 Genocide Convention, genocide had never been expressly addressed in Rwanda's penal code. Also, the government needed to train hundreds of new judges, prosecutors, court clerks, police investigators, secretaries, and other judicial officers, to replace those killed, in exile, or in prison.
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The first genocide trials began in Rwanda in December 1996, yet even as the pace of trials gradually increased, the sheer numbers of accused overwhelmed the capacity of the system. By June 2001, only 5,310 people had been judged, while thousands of those in prison had yet to have formal charges lodged and dossiers drawn up, even after seven years of incarceration.
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Yet the slow pace of trials was not the only problem confronting the Rwandan government in regard to its judicial system. The government saw trials as a means not only of bringing justice and combating impunity, but also of helping to heal individual and social wounds, bring reconciliation, and rebuild community.
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But much of the public has remained skeptical about Rwandan trials. Human rights groups have criticized them for bias, incompetence, and failing to provide defense counsel,
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though these problems have diminished over time.
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A more fundamental problem, however, is the nature of trials in Rwanda, which are based on a Western legal system inherited from Rwanda's Belgian colonizers. Although there is a limited role for victims in the Rwandan system, the trials are detached from the communities they are meant to influence. Victims, relatives of the accused, and other observers have little opportunity to attend the trials, and for many people, the legalistic approach of trials is alienating and feels unrelated to local processes of reconciliation. Many Hutu regard the trials as dominated by political concerns, a form of victor's justice, while victims are frustrated at both their limited role in the process and the failure of trials to address such problems as reparations. In our survey, we found that about one third of the population viewed the trials in Rwandan courts negatively, while a slightly smaller proportion viewed them positively.
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Other research has demonstrated that Rwandans feel only slightly better informed about Rwandan national genocide trials than about the
ICTR.
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Facing a prison population far beyond the capacity of the established justice system to process and seeking ways to fight impunity while contributing more effectively to reconciliation, the government of Rwanda has turned to a traditional dispute resolution mechanism, known as gacaca, as a basis for developing a new judicial strategy. Dating back to pre‐colonial times, gacaca was a public gathering of respected community elders called together whenever necessary to adjudicate disputes between or within families, often involving land and other property, personal injury, or inheritance. Gacaca literally means, “small grass”, referring to the lawn where gacaca meetings were traditionally
held.
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Gacaca was a means for Rwandan communities to resolve conflicts without involving political authorities, though when participants were unhappy with the results of gacaca, they could appeal to their chief. Under colonial rule, gacaca continued to occur, but it became less a community and family‐based institution, directed instead by chiefs appointed by the colonial administration. The jurisdiction of gacaca also became more limited, as more serious offenses, such as murder, were usually taken to colonial courts.
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Gacaca continued to be practiced even in the post‐colonial era. In 1987, Filip Reyntjens, a Belgian political scientist, spent a month observing gacaca trials and found that gacaca continued to be widely practiced, with informal support from local authorities. Parties unhappy with the gacaca decisions could take their cases to the official courts (as they had previously done with chiefs), while the official judges took account of gacaca decisions in their own deliberations and frequently reaffirmed them.
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Forms of gacaca have continued to be practiced since the genocide, as local administrators have brought community members together, particularly to regulate disputes over property as refugees have returned to the country.
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The proposal for adapting gacaca to deal with genocide cases came out of a series of meetings organized by then‐President
Pasteur Bizimungu in 1998–99 among leaders of government, business, and civil society to discuss Rwanda's political transition. The meetings, which came to be known as the “Village Urugwiro” consultations, after the presidential residence where they were held, made a variety of proposals for national institutional reform, including reviving gacaca.
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As part of the Village Urugwiro deliberations, a 13‐member ad hoc commission under the leadership of the Minister of Justice came up with a gacaca proposal, which was debated and adopted by the participants. This proposal was circulated for feedback from various Rwandan groups and from the international community before being forwarded to the Transitional National Assembly, where it was adopted October 12, 2000.
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The new form of gacaca that is currently being implemented in Rwanda represents a compromise between traditional gacaca and Western legal practices and standards. The new system preserves the popular participation of traditional gacaca and the adjudication by respected community members who are not legal professionals. But unlike the previous system, the gacaca courts organized to deal with crimes linked to the genocide are formally organized and recognized by the government. The rules of the new courts are codified, and their operation was overseen first by a special branch of the Supreme Court, the Sixth Chamber, created specifically for this purpose and later by the
National Service of Gacaca Jurisdictions, which provides legal advisors for each district to advise and monitor
proceedings.
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Gacaca judges, known as
Inyangamugayo
, literally “those who detest dishonesty”, are formally elected in government‐organized elections, and the guidelines for these elections encourage selection of women, who have traditionally been excluded from gacaca, and adults of all ages, rather than simply the most senior men of the community. The new gacaca courts are expected to respect human rights and uphold international standards for fair trials as much as possible, given the structure of gacaca and the economic and social constraints confronting Rwanda. To distinguish the new system from the old, the new courts are called “inkiko gacaca”, or gacaca courts, rather than simply gacaca.
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