Questions About the Gacaca Courts in Rwanda

Gacaca courts have many advantages over traditional individualized Western trials, which the Rwandan government says would take nearly 200 years to complete. Erin Daly provides a nice summary of those advantages in her article Between Punitive and Reconstructive Justice: The Gacaca Courts in Rwanda, 34 N.Y.U. J. Int’l L. & Pol. 355 (2002) :

Gacaca’s unique nature may promote additional goals not normally associated with criminal trials. Gacaca is inherently a participatory and communal enterprise. Traditionally and as applied to the genocide, its aim is to strengthen the communities in which it operates. It does this in a number of ways. Gacaca requires the participation of individuals within the communities. Individuals participate by electing representatives, acting as judges, locating and adducing information about the identity of suspects, and providing evidence. Rwandans of all stations will literally be defining justice for the post-genocide society rather than having it defined for and imposed on them. This may be valuable from a rule of law perspective, and it may also constitute an important mechanism for promoting democratic values.

The participation of individuals is designed to build and strengthen communities as well as to empower the population. Gacaca requires people within the communities to work together as voters, witnesses, tribunal personnel, and jurors. It creates a common experience in which everyone works together toward a common goal. In a sense, it aims to replace the divisive experience of the genocide with the cohesive experience of securing justice. This participatory process promotes national democratic and rule-of-law values as well, in that it shifts power from the central government to the people. This is particularly important in a context where there is a significant rift between the people and the government. While gacaca is still a state process, it leaves as much power as possible to those outside the central state power structure. Thus, although the Tutsi-dominated Rwandan government could still influence the process or its outcomes, the government’s influence will be moderated by the conduct of thousands of individuals at the local level and therefore felt less than it would be if the central government were managing the prosecutions directly. The sheer number of tribunals operating simultaneously should protect the process as a whole from undue influence by the central government. This is important not only because weakening central authority may invariably promote democratic values, but also because in this specific instance weakening the role of the government may enhance the trust that people have in the process.

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Furthermore, localizing justice ensures that justice is visible to those who suffered. Nearly everyone who survived suffered by being a victim or related to one, witnessing a crime, or being pressured to participate as a perpetrator.

Ultimately, then, the program is intended to strengthen communities by encouraging people to work together. This is an admirable goal in any case; in Rwanda‘s situation, it is essential to long-term stability. Rwanda will thrive only if the communities within it function cohesively. The gacaca plan thus aims to link two important goals–retributive justice and community rebuilding–by making them interdependent.

One other aspect of gacaca may be appealing to the government and to the people. Gacaca is a distinctly local tradition. It resembles processes that developed over centuries throughout Africa, but the particular form of local justice known as gacaca seems to be distinctly Rwandan. This sends the salutary message that the tools necessary to rebuild Rwandan society inhere in its indigenous culture. It may infuse this local tradition with some Western ideas, but the essence of the solution is African.

This is not to say, of course, that gacaca courts are without flaws. On the contrary, Daly is concerned not only with their underprotection of defendants’ rights, but even more fundamentally with their ability to promote national reconciliation:

Because the gacaca tribunals will have the power to order lengthy prison sentences– including life imprisonment–and other burdensome sanctions, many people have voiced concern about several facets of the gacaca process as presently envisioned. These concerns include that defendants are not to be represented by counsel, judges are ill-trained, and, at least at the beginning, there will be no precedent to assure consistency of treatment. Another problem relates to confessions. The current law offers reduced prison sentences as an incentive to confess. Based on the practice of plea bargaining in the United States, these provisions are aimed at reducing the prison population by reducing the time that prisoners would serve. However, justice may be compromised if these provisions are over-effective; there is little to deter a false confession, particularly for individuals who have already served years in jail awaiting trial.

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While the problems relating to lack of due process are undoubtedly the most significant, they are by no means the only dangers of gacaca. The flipside of community empowerment is vigilante justice. While it might help the community that the government is not likely to interfere with particular gacaca trials, it may help the defendant if more effective controls are placed on the ability of the community to become a lawless and vengeful mob. Given these due process and other concerns, gacaca may actually retard, rather than promote, Rwanda‘s progress towards justice and reconciliation.

With respect to some issues, gacaca may operate neutrally, neither helping nor hindering Rwanda‘s progress. For instance, the process may do little to alleviate the problem of prison overcrowding. While many current detainees may be acquitted by gacaca, it is quite possible that many more will be convicted and that, through the fact-finding procedures of gacaca, people who have escaped detention so far may be arrested, which would add to the number of detainees.

Secondly, criminal trials–whether gacaca or conventional trials–may not solve one of the principal ironies of prosecuting the Rwandan genocide: the very fact that so many people were involved in manual murder on such a large scale may make prosecuting any individual more difficult. Human Rights Watch quotes one “participant” as saying that “[n]o one person killed any one person.” To the extent that is true, then, it may be difficult to harness the necessary evidence against any individual defendant. If a number of individuals jointly massacred ten people, it may be difficult to determine who was responsible for the death in each case. Indeed, in these extraordinary situations of butchery, it may be quite beside the point. While it remains important that no innocent person be punished, it is not obvious how many resources should be devoted to distinguishing between those who identified the person as Tutsi, those who located him or her, those who restrained him or her, those who maimed, raped, stabbed, or cut, and those who issued the fatal blows. Furthermore, of course, in criminal trials, a lack of evidence correlates to a lack of punishment, but not necessarily to a lack of guilt. If the country’s only response is criminal prosecution, many guilty will go free for lack of evidence.

Finally, gacaca as presently envisioned has only limited ability to promote reconciliation. Although gacaca has the potential to rebuild communities, it does so under a cloud of punishment and retribution. These values are not necessarily conducive to building a new peaceful Rwanda. While gacaca does not necessarily exacerbate these problems, Rwanda‘s reliance on gacaca as presently envisioned constitutes a wasted opportunity to promote values of reconciliation and reconstruction.

I find particularly interesting Daly’s statement that neither gacaca nor conventional trials will ever be able to remedy the damage done by the Rwandan genocide. She is almost certainly correct; as Mark Drumbl has eloquently explained in his essay Collective Violence and Individual Punishment: The Criminality of Mass Atrocity, 99 Nw. U. L. Rev. 539 (2005), there is simply something odd about trying to blame particular individuals for mass atrocity:

Whereas for the most part ordinary crime deviates from generally accepted social norms in the place and at the time it was committed, extraordinary crime has an organic and group component that makes it not so obviously deviant in place and time…

Perpetrators of serious international crimes generally belong to a collective that shares a mythology of ethnic, national, racial, or religious superiority, perhaps even infallibility. In fact, in certain circumstances, those who commit extraordinary international crimes are the ones conforming to social norms whereas those who refuse to commit the crimes choose to act deviantly. How does one justify as criminal law something obeyed only by exceptional individuals?

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Although I accept that mass atrocity is manifestly illegal, I argue that its collective nature problematizes concepts such as bystander innocence, public responsibility, victim reintegration, reconciliation, recidivism, and the moral legitimacy of pronouncements of wrongdoing by international tribunals when the international community itself is perceived as having failed to prevent (or, at least, to attenuate) the wrongdoing. Ignoring or denying the uniqueness of the criminality of mass atrocity inhibits the development of effective methods to promote accountability for mass criminals. Jan Klabbers is right to inquire: “How useful is it to think of human rights violators as common criminals?”

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Atrocity would not reach truly epidemic levels but for the vigorous participation of the masses. To be sure, there are cases in which atrocity is perpetrated top-down, through occasional and targeted covert state operations, such as in Chile.… But there are other cases where conflict entrepreneurs publicly exhorted violence and substantial numbers of ordinary people ordinarily disconnected from the political process actively committed the acts in question with the acquiescence or complicity of many more individuals.

I have written elsewhere that Rwanda presents a compelling case study of this unsettling phenomenon. Rwanda disturbingly demonstrates David Luban’s perception that “getting people to murder and torment their neighbors is not hard; in some ways, it turns out to be ridiculously easy.”… In Rwanda, genocide was a social project: as José Alvarez observes, a crime of hate more than a crime of state. To speak of individual mens rea in such contexts is a bit facile. Clearly, Jean Kambanda–the Prime Minister of Rwanda during the genocide–was responsible for genocide, but he did not singularly cause it. Instead, the causes are diverse, and touch upon individual actors, low and high in the command chain, along with a myriad of economic, political, historical, and transnational factors.

Although he recognizes their drawbacks, Drumbl is more optimistic than Daly about the transformative potential of the gacaca courts, given their emphasis on collective reparations instead of on collective punishment. Who is right? I don’t think we have enough information to decide. I do know, though, that the appeal of alternative forms of justice may well be determined by the success or failure of the gacaca courts, which clearly represent the most ambitious attempt yet to find a new way to address mass atrocity. That’s what makes the gacaca courts’ current phase so important.

UPDATE AND CORRECTION: Mark Drumbl has pointed out to me that the gacaca process was amended in two important ways by an Organic Law in 2004: (1) the number of offender categories was collapsed from 4 to 3; and (2) Category 1 offenders whose confessions are not accepted were made eligible for the death penalty. Drumble notes, though, that Rwanda hasn’t executed a convict since April 1998, so the country has de facto abandoned capital punishment. My thanks to him for the correction.