11 Mar Gacaca Justice
When we think of prosecuting perpetrators of the Rwandan genocide I would suspect that the work of the ICTR immediately comes to mind. That is unfortunate, because fewer than one percent of all Rwandan genocide trials are conducted by the ICTR. It is the local “gacaca” courts where almost all the prosecutions are held, with the ICTR and Rwandan conventional courts trying only the very top perpetrators.
The question of Rwandan justice is extraordinarily complicated. When over 50,000 Rwandans committed acts of genocide, there is simply no easy answer for how to pursue justice and reconciliation. The Rwandan government estimates that it would take over 200 years to prosecute the perpetrators if one were to rely on traditional criminal prosecutions.
How do you move forward in the face of such a dilemma? The solution Rwanda has chosen is gacaca justice. It is highly unusual by international standards, and yet there seems to be a strong sense that it is the right approach for a country that is trying to move forward in a spirit of justice and reconciliation.
I had the good fortune earlier this week to spend an evening in the home of one of the top gacaca judges in the country. Like most gacaca judges, he has no formal legal training but was elected by his community as a person of the highest moral integrity. He serves as one of nine appellate gacaca judges for the highest level crimes within the gacaca system. This court focuses on those who, in his words, “excelled at committing acts of genocide,” often killing dozens of victims. He does not sit in judgment on the planners or instigators of the Rwandan genocide, but rather those, like thousands of others, who were highly-efficient killers.
In a typical gacaca court there are no lawyers present. No prosecutor, no defense lawyer, and no legally-trained judges. What you have instead is community-based justice system, a trial by a jury and judge of your peers.
I asked him why the perpetrators engaged in such atrocities. What could bring someone to partake in such madness? His answer was a study in the psychology of mass killing. It was a combination of fear, weakness, respect for authority, and group identity. He did not say they were just following orders, because they were not. But they were following something just as powerful. It was about community, and wanting to participate in community acts, acts of killing the inyenzi, the Tutsi “cockroaches.”
When I inquired why Rwanda did not opt for a Truth and Reconciliation Commission like South Africa, he recoiled at the suggestion. He said, “Rwanda cannot have reconciliation without some measure of justice. A general amnesty of the perpetrators would do more harm than good. If we as a country have any hope of moving forward we must pursue both justice and reconciliation.”
He emphasized that confession is at the heart of the system. The accused stands before the community facing his own neighbors who lost loved ones at his hands. His genuine remorse is a tonic that heals. His public confession will result in a much lighter sentence and in many cases brings a significant measure of healing and forgiveness in the community.
I left terribly impressed by the man’s integrity in the task that is set before him. This is a man with two small children and a dual-career spouse who spends his week as a high-end professional in the business world. It is the kind of life that is familiar to all of us. But then he spends his weekends doing gacaca justice in his community. It is the kind of life that is almost impossible to comprehend. Case after case of mass atrocities.
Roger-
Thanks for this really insightful on-the-ground reporting. It seems to me that understanding how post-conflict societies actually deal with past atrocities is an essential part of the academic debates over international criminal law. The facts on the ground — which evolve over many, many years, and are deeply rooted in history and culture — do not always map neatly to theoretical frameworks and assumptions about peace, justice and reconciliation.
For those who can’t go to Rwanda in person, I highly recommend the 2002 documentary, “Gacaca: Living Together Again in Rwanda” by Anne Aghion. It is a deeply moving account of the challenges of both ordinary justice and the Gacaca process. It is suitable for showing to human rights or international criminal law classes.
As much as we would want and hope for a common international justice system the Rwandese gacaca system gives us a legitimate reason to pose and think about our international jurisprudence. What do we consider as international? Are the interests of justice local? If they are then at what point does the international community have the standing to criticize any given system?
I guess these and many other questions need to be asked and answered if we are to have a real and credible international justice system. The gacaca judge crystallized the inherent complexities that any justice system on an international level faces. He distinguished post apartheid South Africa’s Truth and Reconciliation Commission from the post genocide Rwandese gacaca system and argued that the commission would not have worked in Rwanda. We will never know for sure if the South African Truth and Reconciliation style system might have worked in Rwanda because it was never tried in Rwanda. At one point some people argued that the commission would not work in South Africa and they made seemingly valid points to support their argument. Some people still think that it did not work because the interests of justice, what ever their definition of justice is, were never met. I am sure that there are some people in Rwanda who decry the gacaca system because they think the perpetrators of the genocide are getting away lightly. But that is beside the point.
Holistically, both systems serve the same purpose; the urgent need to move on and try to reconcile. The effort put and the willingness to reconcile is the only measure that can be used to judge whether either option works. There is nothing fundamentally wrong with either system. Ultimately, what maters most is the objective that both countries tried and still try to accomplish. It is obviously complicated to have an international judicial system that can be applied universally.
A uniform system should be objective based. The first question is: what is the main objective? Rwanda and South Africa are different from Cambodia where, three decades after Khmer Rouge, the Cambodians are hunting the perpetrators of the genocide in Cambodia. Reconciliation is not the main motive; punishment of the perpetrators of genocide is the objective. But in South Africa and Rwanda punishment is not the driving force. Reconciliation is, therefore, once the objective of the exercise if found the international community will have to apply or support an acceptable societal legal remedy to the situation it is faced with. Although there is room for the international community to play a role in remedying any given crisis there is a delicate balance that has to be made. Justice should be seen to be done and yet the interests of the locals should play a very important role in how and the extent to which the international community must be involved. It is tricky but looking at South Africa and Rwanda such an approach seems to work.
Just like every good approach to a crisis, an objective based approach may not satisfy everyone but it does seem to work. We therefore, may not need to be too rigid on precedents but assess what the local population considers satisfactory and workable. Of course the interests of justice should not be totally ignored. Thus, if a locally agreed approach to an international crisis overly burdens the interests of justice then the international community can and should actively criticize such an approach. The Truth Commission of South Africa and gacaca system of Rwanda seem to pass muster.