Friday, April 16, 2004

RWANDA: POST-GENOCIDE JUSTICE


From: BBC News. Caption: Here at Kibungo prison families meet for a few minutes on a Saturday morning. Under the government's Gacaca programme killers must confess their crimes and apologise if they want to be freed. The prison's deputy administrator and a prisoner - the "Gacaca co-ordinator" - were urging the prisoners' families to convince their jailed relatives to confess and apologise so they can be released. The jails are crowded and it is the government's way of reducing the prison population.


To say that, Rwanda is a country in a very challenging situation is an understatement. A genocide which cost some 800,000 lives and sent several million into exile occurred only ten years ago. Nearly a hundred thousand genocide suspects remain in jail without charge. Over 600,000 children under 15 are orphans, 1/6 of whom are heading a household.

Rwanda seems to be a historical anomaly. In Germany, the country was split after World War II and most of the Jews had fled Europe anyway. After the Armenian genocide, the Ottoman Empire collapsed and Armenia got its independence (albeit briefly, before the Soviets conquered it). The Balkans were partitioned after those wars and even within "multi-ethnic" Bosnia, the groups tend to live apart. Though there may be a precedent, I can't think of one off the top of my head. When it comes to reconstructing a shattered society, Rwanda is operating essentially without a historical model.

The justice end has gone in fits and starts. The UN established an ad hoc war crimes' tribunal in Arusha, Tanzania, to try the genocide's organizers. The Arusha tribunal has been beset by problems from the start. It was poorly run in its early days. It's been met with resistance by the current RPF government (who fought against the genociders) who say the tribunal is inefficient and pointless, though some suspect the RPF is afraid that some of its members might be hauled into the dock.

Some worry that the tribunal's site in northern Tanzania, hundreds of miles away from Rwanda, dilutes the deterrent effect. Only a handful of trials have taken place during its nine-year existence. Critics say that the tribunal is nothing more than an half-hearted attempt by other countries to assuage its conscience for having done nothing during the actual massacres. Some say the tribunal is administering "victors' justice" by focusing too much on atrocities by the genociders and ignoring RPF war crimes. Most agree on one thing: the Arusha tribunal serves more to create a body of international legal precedents than to doing anything for the genocide's survivors or to its perpetrators. [The article Healing Rwanda from The Boston Review deals further with the promise and problems of the Arusha Tribunal.]

The Rwandan government has set up trials in domestic courts concurrent to the Arusha Tribunal. However, the country didn't have a ton of lawyers and judges to begin with and many of them were either killed in the or fled during the genocide or were implicated in it. The domestic justice system was never going to be able to deal with all the accused if things were done normally.

In another article for The Boston Review, Helen Cobban noted that the execution of the Rwandan genocide was very different from most other genocides in history because of the widespread implication of ordinary people.

What was the intent of this mass mobilization for genocide? Was it intended simply to complete the killing of the country's Tutsi population as rapidly as possible? Or were the organizers of the genocide also hoping to give the largest possible number of Hutus the bonding experience of participating in a pan-Hutu baptism in the blood of their foes? Was it designed to implicate as many individuals as possible in the killings, and thus to make any future assignation of responsibility for specific acts of genocide just about impossible? Whatever the reasoning of the organizers, the mass-participatory aspect of this genocide gave it a psychosocial content significantly different from that of the European Holocaust with its more 'sanitized,' mechanized, and secret methods of killing. Unlike the Shoah, too, once this genocide had been brought to a halt there was no clear place for survivors to flee to or regroup.

She points out out the limits of the judicial system in helping the country move forward. Given that Tutsis still only make up 1/7 of the country's population, Cobban concludes that they desperately need to find a way to coexist with the Hutus: there is no place either inside or outside the country where they can hope to regroup in a compact and self-supportive way. But given the events of 1994 and the sharp demographic imbalance between the two groups, finding a mechanism to bring this about presents a profound political challenge—for Rwanda's leaders and for their friends in the international community.

The Rwandan government decided a fairly interesting path for dealing with the multitude of problems, one that is trying to kill several birds with one stone. They set up community-based courts called gacaca, which is a Kinyarwandan word meaning "justice on the grass." Gacacas are a traditional Rwandan practice in which trial occurs in a community gathering, the focus of which is on reconciliation of the community.

The BBC described the gacaca process: elders in a village would congregate to solve disputes. Suspects are taken to the villages where they allegedly committed their crimes and confronted directly by their accusers. The trials are not overseen by legally qualified judges but local people respected for their integrity.

Amnesty International added that gacaca merge customary practice with a Western, formal court structure. The gacaca tribunals are legally established judicial bodies. Gacaca judges can impose sentences as high as life imprisonment. The Rwandese government re-invented and transformed the existing mode of conflict resolution, gacaca, in order to try the more than 100,000 genocide suspects who overfill the country's prisons...

The new gacaca court system further represents an ambitious, groundbreaking attempt to restore the Rwandese social fabric torn by armed conflict and genocide by locating the trial of those alleged to have participated in the genocide within the communities in which the offences were committed. Neighborhoods selected the gacaca judges who will hear the genocide cases. Local residents will initially aid the gacaca benches and general assemblies at the cell level in the listing of genocide victims and suspected perpetrators within their community. Later, community members will provide information about the genocide offences during the gacaca hearings. The government proposes that community hearings in which community members themselves serve as witness, judge and party will more effectively ventilate the evidence, establish the truth and bring about reconciliation than what has been achieved thus far by either the specialized genocide chambers or the ICTR [Arusha Tribunal].



I found this intringuing as it aims to kill several birds with one stone. Human rights groups complained that Rwandan prisons were intolerably overcrowded and that most of the detainees had been imprisoned for the better part of a decade without any sort of progress on legal proceedings. Yet the formal justice system was woeful unequiped to deal with such a huge number of accused. Gacacas are meant expedites the process. Furthermore, it implicates the entire community in the justice process, not just a few judges and lawyers. Gacacas are part of an organic process. It gets everything out into the open, rather than keeping resentments simmering inside. This restorative (rather than solely punitive) justice helps reconciliation.

Amnesty noted Post-conflict situations, particularly ones involving the heinous crime of genocide, demand a resolution of the conditions that led to them in the first place. If this is not done, the foundation for further conflict remains in place. Peace is the most desired commodity in post-conflict situations. Peace, however, depends not only on the absence of war but also on the existence of both justice and truth, with both justice and truth dependent on the other. Without justice and truth, the deep rifts in the Rwandese social fabric will not be healed and peace will not be achieved.

One of the main fears is that some gacacas may degenerate into mob justice. This is certainly a risk. Gacacas rely on the good faith of those involved; only a decade after a genocide, you could hardly blame anyone for being in short supply of good faith. Others fear that guilty suspects might be released, a risk linked precisely to the non-detached nature of gacaca. Yet no one has really offered a better solution. As far as I can tell, the other alternatives are either the wholesale release of all suspects or the indefinite detention of all 80,000 remaining suspects until the "normal" justice system takes its course. Rwandans would consider either of these solutions just as unacceptable as would the international human rights groups in the comfortable London and New York offices.

Gacacas are far from the ideal. Despite the aforementioned praise, Amnesty criticized them as failing to conform to international standards of fairness so that the government's efforts to end impunity, and the trials themselves, are effective. It's worth noting that Amnesty underlined the problems of gacaca without offering any concrete solutions.

Human Rights Watch described gacaca, in principle, as an innovative, participatory, state-run justice system meant to speed up genocide trials and promote reconciliation. But HRW complained that in practice, gacacas have become overly centralized (the antithesis of their community-based intent). HRW accused the Rwandan government of refusing to let gacacas investigate accusations against current members of the Rwandan military, many of whom were in the RPF's rebel army. Though this a bizarre "charge" since HRW admits that such accusations can still be brought before regular courts.

Yet gacacas seem to be making the best of a bad situation. And until Amnesty, HRW or any one else comes up with any better ideas that can be implemented on the ground, then gacacas will remain the imperfect way forward for a country with no historical model to follow.


**

Recommended reading: The Legacies of Collective Violence from The Boston Review addresses the limits of law in a post-genocide situation. While Human Rights Watch's Kenneth Roth and Alison DesForges offer a counterargument.

Recommended listening: Revolutionary Justice from American Radioworks on the gacaca courts.

Tommorrow: the post-genocide RPF government's record since 1994.

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