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Shannon E. Powers
On May 21, 2011, the Rwandan Justice Minister announced the imminent completion of all trials in gacaca courts, the modified community justice mechanism used across the country to try suspects of the 1994 Rwandan genocide. That same month, Human Rights Watch issued a comprehensive report on the gacaca trials. This Insight provides an overview of the gacaca system and highlights some of its successes and shortcomings in light of the varied, and often conflicting, goals of international criminal law and transitional justice.
The Gacaca System
Named for the Kinyarwanda word for grass, gacaca was a traditional form of communal justice, whereby communal elders would resolve disputes by devising compensatory solutions aimed at restoring societal harmony. Gacaca proceedings took place on an ad hoc basis and encouraged community participation. Following the genocide in Rwanda in 1994, the UN Security Council set up the International Criminal Tribunal for Rwanda (“ICTR”) in neighboring Tanzania to prosecute those most responsible for the organized violence. However, over 120,000 lower-level suspects remained in Rwandan prisons, and the government soon realized it would take its dilapidated domestic judicial system over 200 years to try all cases. It therefore passed Organic Law N° 40/2000 in 2001, repurposing the traditional gacaca courts to deal with the remaining genocide cases. It is estimated that over one million cases have been tried to date under this law and its subsequent modifications.
The Gacaca Law divides crimes into three categories: the first category, relegated to the exclusive jurisdiction of the national courts and the ICTR, is reserved for the planners of the genocide and people who held positions of authority; Category 2 crimes include murder and bodily harm; and Category 3 is comprised solely of property crimes. Due to the slow pace of the national courts, in May 2008, the Rwandan parliament transferred most of the remaining Category 1 cases to gacaca, including cases of sexual violence.
The law also provided for the administrative structure of gacaca. Over 9,000 courts were set up across the country, with panels of nine locally elected judges hearing cases based on events that had taken place in that area. The courts were divided into two levels: the cell level, which handled information gathering and had jurisdiction over Category 3 cases, and the secteur level, which heard Category 2 cases and appeals from both levels. Collectively, the gacaca courts are coordinated by the National Service of Gacaca Jurisdiction (“NSGJ”), an agency under the auspices of the Ministry of Justice.
Because gacaca is a community-based institution, participation is mandatory for everyone, and legal professionals are generally not involved in the proceedings. Judges are provided basic training by the NSGJ, and the community at large, which serves as the General Assembly, is responsible for reporting events that took place, for filing accusations, and for testifying at hearings. From the community’s reports, dossiers are compiled about what transpired in a particular community during the genocide, and judges rely on these dossiers to conduct hearings.In the conciliatory spirit of the original gacaca, suspects are encouraged to confess both before they have been accused and again following their hearing in return for a reduced sentence. Victims are equally encouraged to forgive perpetrators. Gacaca judges can sentence those found guilty to imprisonment, order them to make reparations to victims, and/or complete community service, depending on the nature of the crime and whether or not the accused had confessed.
Enforcement of International Criminal Law and Transitional Justice Goals
Many of the challenges in the gacaca process stem from the inherent contradiction of using a conciliatory process for a retributive purpose. The Rwandan government explicitly rejected the possibility of a truth and reconciliation commission because it refused to grant amnesty to perpetrators, preferring instead retributive measures. The institution of gacaca, however, with its emphasis on social reconciliation, foregoes many of the procedural safeguards awarded defendants in criminal trials in favor of a more participatory process. Such issues reflect broader tensions among the goals of international criminal law and transitional justice. The localized gacaca courts must be evaluated in light of each of these goals to fully understand the extent of their capacities and challenges.
Retributive justice emphasizes holding individuals accountable for their actions through commensurate punishment. On the one hand, gacaca has been credited with the swift delivery of results that could not possibly have been achieved by the ICTR or the national courts. This is significant because overcrowding in Rwandan prisons had rendered conditions intolerable, and delayed trials also raise significant human rights concerns. Tellingly, despite criticisms of the gacaca, virtually no feasible alternatives have been suggested. Some observers have even lauded the gacaca’s ability to individualize responsibility and avoid the collective blaming of abstract groupings.
Swift trials, however, are meaningless if the process employed is fundamentally flawed. The Human Rights Watch report pointed out a number of procedural concerns with gacaca trials. The major concern focuses on the rights of the defendants. The accused are often deprived of the fundamental right to the best possible defense. Defendants are encouraged to confess to crimes, and, because they are not represented by counsel, they may not always be making informed decisions. This is especially troubling as confessions judged to be incomplete may garner lengthy prison sentences anyway. Moreover, because participation in gacaca is mandatory, an accused may be forced to incriminate him or herself. Other procedural concerns are rooted in the lack of legal professionalism, including the ability of judges to weigh the credibility of evidence and to render sound, impartial judgments. Finally, the adequacy of the appellate procedure has been questioned since cases can only be appealed within the gacaca system.
A second area of concern is whether gacaca is the appropriate forum for trying cases of sexual violence, which were pervasive throughout the Rwandan genocide. Article 38 of the 2004 Gacaca Law provides for closed door hearings in cases of sexual violence; however, victims emphasized that this special process itself draws attention to the nature of the issue being discussed. Furthermore, it can be more difficult for victims to testify about such experiences before members of their own community and harder to protect their identities. Some victims also feared reprisals.
Finally, in addition to the formal rules governing the gacaca process, problems have arisen in their implementation, including security concerns, allegations of corruption, and extensive government interference. Overall, in terms of retributive justice, gacaca has delivered swift results but could benefit from stricter procedural safeguards that would not necessarily impinge upon communal participation in the courts.
Compensatory JusticeCompensatory justice focuses on the attempt to restore the victims’ property or provide them with some measure of reparation for the harm and losses suffered. Gacaca courts can order perpetrators to pay reparations or provide the equivalent value in labor for Category 3 crimes relating to property. The original Gacaca Law also suggested a possibility of indemnification for Category 2 and 3 crimes by requiring judges to draw up lists of damages to be transferred to the government. The 2004 version made clear, however, that before any indemnification could take place, enacting legislation would be required—a proposal that never materialized. Many of those interviewed by Human Rights Watch cited the lack of compensation to be one of their greatest disappointments in the gacaca process. Although gacaca has not yet provided adequate compensation to the genocide victims, it appears to be more an issue of political will and implementation than a consequence of the institution itself.
Deterrence and Norm Creation
Deterrence emphasizes the need to demonstrate to would-be perpetrators that genocide and crimes against humanity will always be punished, thereby preventing such crimes. It is too early to judge whether the gacaca process will have a deterring effect on future behavior in Rwanda. However, another way in which deterrence is achieved is through the creation of norms that encourage peaceful conflict resolution and that stigmatize perpetrators of violence. Specifically in terms of international criminal justice, the goal is to create and reinforce an awareness of international law with real implications in people’s everyday lives.In this respect, gacaca can be considered more successful in Rwanda than the ICTR has been. The ICTR is perceived by many Rwandans as a remote, inaccessible institution that is controlled by foreign elements and has very little to do with their actual experiences. The gacaca process, on the other hand, has become a part of virtually every Rwandan’s daily life. The fact that gacaca is rooted in traditional practice, led by members of local communities, and does not rely on formal legalistic procedures, renders it accessible to all participants. Thus, the institution itself is ideally situated for purposes of norm creation and consolidation. Whether or not gacaca proves to actually be capable of socializing Rwandans into non-violent conflict resolution and faith in international law is contingent upon Rwandans’ perceptions of the fairness and legitimacy of the proceedings.
Restorative Justice and Building a Historical Record
Restorative justice shifts the focus from individual punishment to the broader needs of the community and attempts to foster the healing and forgiveness required to move forward after large scale atrocities. Gacaca forces confrontation between victims and perpetrators on the theory that the experience of accusation, confession, and forgiveness will have cathartic effects for participants. It further carves out the space and audience for individuals to share their experiences and for the community to grieve together.
Interviews with Rwandans, however, indicate mixed results on the restorative effects of the gacaca experience. Some Rwandans have reported feeling a sense of relief and closure, but for others, participation has meant uncertainty, re-traumatization, and fear. Participation in gacaca has also declined steadily over the years, despite the legal requirement and penalties for truancy. This may reflect an increased stress stemming from participation and frustration with the process, or could simply be attributed to the necessities of life.
A related aspect of restorative justice is the ability to create a historical record. Courts are thought to be appropriate mechanisms for such endeavors as they invite dialogue from all parties, and also because survivors often value official acknowledgement of the wrongs they have suffered. In some cases, people remained uncertain about what had happened to loved ones, and finding out their fate through gacaca has provided emotional closure, or more pragmatically, the requisite information to find bodies for a proper burial.The extent to which ordinary Rwandans are free to construct this narrative, however, remains in question. Some observers of the trials suggest that the informal structure of gacaca has enabled individual courts to conform to the needs of its participants. Others, in contrast, view gacaca as local productions scripted by the state in which ordinary Rwandans are simply acting out prescribed roles. In support of this latter view, observers point to Rwanda’s sweeping laws prohibiting genocide ideology and sectarianism, the broad and ambiguous nature of which is said to have a chilling effect on expression in gacaca. They further emphasize the taboo against participants deviating from their expected roles of Hutu perpetrators and Tutsi survivors, and the consequent distortion of their narratives where no true fit exists. Such an allocation of roles based on ethnicity flies in the face of individualized responsibility, and it is possible that this process will ultimately serve to re-harden ethnic divisions rather than improve them. Furthermore, the gacaca courts do not try crimes committed by the Rwandan Patriotic Front, the party in power in Rwanda since the genocide. Such selectivity of prosecution omits integral passages from the historical record.
Another way in which gacaca has attempted to foster reconciliation has been in the partial or complete commutation of prison sentences into community service for those who have confessed. Arguably, this type of punishment is productive not only because it helps physically rebuild the community, but because it enables those found guilty to reintegrate into the community.
Overall, the record for gacaca’s restorative effects is mixed. While the institutions are well primed to be sources of healing and forgiveness, it remains unclear whether they can serve as such either because they may be premised on flawed theories or because they have been implemented imperfectly.
The gacaca courts are still ongoing, and their overall success in the process of transitional justice will continue to be debated for a long time to come. Perhaps the point that emerges most clearly from the gacaca experience is that the efficacy of informal judicial institutions depends not only on the constitutional or substantive rules applied but also on the context in which they actually operate. In the Rwandan case, a number of external factors influenced gacaca and its ability to meet the goals of international criminal law; regime type, rampant poverty, lack of security guarantees, and national laws regulating speech each exerted an influence over the ways in which gacaca functioned and the people related to the courts. Nevertheless, the lessons from all aspects of gacaca’s functioning are sure to inform future debate and endeavors in international criminal law and transitional justice.
About the Author:
Shannon Powers is a Ph.D. candidate in Political Science at the George Washington University and holds a J.D. from the University of Connecticut School of Law. She currently serves as an International Law Fellow at ASIL. The author would like to thank Leehee Goldenberg and Alana Tiemessen for their valuable contributions.