In 1994, an event considered to be one of the most abhorrent incidents in recent times took place between two ideologically and culturally divided, yet geographically proximate, communities in Rwanda. This conflict between the largest (Hutu) and second-largest (Tutsi) tribes resulted in around 800,000 Tutsi members being killed by Hutus within the space of one hundred days (Prunier, 1997).
One difficulty posed by such atrocities is the question of how the formal legal process could manage cases of such widespread harm, how it can achieve justice for such a myriad of stakeholders with a variety of vested interests, and how can it reconcile the harm and seek to ameliorate the resultant tensions generated by such conflict.
In the case of the Rwandan Genocide, a formalistic legal approach was inappropriate. The UN, who could be called in to adjudicate on the matter from an international perspective, was heavily criticised. It was accused of being indirectly complicit in the genocide, as it decided to remove a significant proportion of their troops prior to the commencement of the killings (Melvern, 2000).
Resultantly, the UN International Criminal Tribunal for Rwanda (UNICTR/ICTR) (convened to provide a legal instrument with which to try the offenders) was criticised as being a placatory instrument without any substantial demonstrative intent (Soyinka, 1998). Many of those who staffed the ICTR were not professional prosecutors. Instead, they were academics or representatives from human rights organisations. By July 2013, only 75 cases had been completed, an extremely small proportion of the 750,000 people arrested in relation to crimes committed during the genocide (Penal Reform International, 2010).
Many of the survivors of the genocide were already suspicious of the UN due to the pre-stated failures (Schimmel, 2012). This was exacerbated by the lack of support that they received during the initial post-genocide period, coupled with the consensus that the UN were using the ICTR as an exercise to promulgate international law, rather than aiming to rectify the numerable complex issues arising in Rwanda. There were many repercussions from this, probably the most significant was the fact that survivors were unable to derive satisfaction or a sense of justice from the ICTR proceedings.
Forgoing the formal legal process, many of the survivors turned to a traditional form of justice, the Gacaca Tribunals. These were set up in October 12, 2000 by the Transitional National Assembly of Rwanda. Gacaca hearings (meaning ‘grass’ in Kinyarwanda, derived from the fact that many of the Gacaca tribunals took place in community oriented spaces such as markets or fields) would ideally include the confession of crimes committed by the offender, who would then be given a chance to express remorse or sorrow for their offences, be forgiven and forthwith provide some proportionate restitution. After this, all parties would drink to symbolise restitution and restoration and the conflict would be resolved without the need for what we would recognise as formal punitive sanctions such as imprisonment or fines.
In response to the atrocities of the genocide, the structure of the traditional courts was altered to provide a more formalistic and homogenous design which could be replicated across communities. Each respective community was to have its own Gacaca variant and was to depart somewhat from the wholly restorative process predicated on reconciliation of relationships and a ‘compromissory’ drink, and would possess an additional punitive function instead. This was in reference to the severity of the crimes committed. Whilst the proceedings retained the restorative ethos of the traditional courts and the importance placed on truth-telling and community, the new punitive addition was a rather stark contrast from the aims of the traditional Gacaca courts.
Due to the shortage of trained judges (and the fact that NGOs were constrained in their effort to support) (Gacaca Report Summary, 2012) the Gacacas were presided over by members of the community who were not legally trained. The only requirements placed on judges were that they were over 21, had no previous convictions for criminal activity and that they could not be involved in any political role. The result of this was that by April 2002, over 250,000 male and female judges were elected. These, what can only be described as, ‘lay judges’, were empowered by the tribunals to lay down life sentences for those convicted of a serious offence, and sentences of a maximum of 20 years for those aged 14 – 18 who had committed similar crimes (National Service of Gacaca Jurisdictions, 2012).
The ‘cases’ seen before the Gacaca tribunals were split into three categories. Category 1 included the most serious offences and offenders, and these encompassed the planning and preparation of murder, those in political control who organised the killings, killers themselves and those who practiced rape or sexual torture with accomplices. Category 2 offenders were those who had murdered with distinction and revelled in the cruelty of their crimes, torturers, those who possessed an intent to kill but failed in their aims, and any other offenders. Lastly, Category 3 included those who committed offences in relation to property.
In proceedings, victims (or close relatives to victims) were empowered to discuss the harm that they had suffered, detailing property damage and loss of life. If an entire family had been killed, this would be undertaken by a neighbour. The judges would then arbitrate on a proportionate sum which must be paid by the offender. This would go directly to the victims, or if, as previously stated, there were no victims to compensate, it would be held in a general fund which would be paid to relatives should they come forward at a later date. Notably, victims were also able to excuse offenders from their fines.
In what is perhaps the most significant departure from Gacaca justice and traditional Western justice systems was that even the most serious Category 1 offenders could reduce their sentence with the performance of community service. This is a recognisable theme of restorative processes and was retained for this purpose.
There is a mixed opinion regarding the efficacy of Gacaca tribunals. Some argue that, with respect of the heinous social upheaval, a community-oriented justice practice was essential and that to attempt similar outcomes through a national/international organisation is both unrealistic and illogical (Staub, 2004; Daly, 2002). This argument is supported by the fact that it took around $200 million for the ICTR to try 75 cases, when the Gacaca tribunals saw around two million cases for a quarter of that cost. However, many outside commentators criticised Gacaca for its abuse of human rights, arbitrary and/or capricious practices, the absence of a right to a lawyer, or the fact that judges did not have the required training to adjudicate (Apuuli, 2009; Rettig, 2008).
Events of mass atrocity and human rights violation will always be difficult to rectify. Gacaca processes are quite alien to an outside perspective, a perspective which has been constructed by cognisance of Western, adversarial, court-adjudicated systems of justice. However, that is not to say that we cannot learn lessons from them or gain insight from the practice. In doing this we can examine our own perceptions of justice and examine why we hold them to be so.
The nature of the crimes which occurred in Rwanda, primarily inter-community conflict, needed a unique approach which took account of the harm suffered by the victims whilst still ensuring that offenders were reprimanded. The ability of victims to tell their story in the Gacaca tribunals was recognised as something which was essential to the process. The organisers saw crime as an inter-personal conflict between two participants, not as an action by a person against the state. As such the processes were targeted satisfying the needs of victims as a foremost concern, something which is absent, yet perhaps desirable in British Criminal Justice.
Additionally, the Gacacas were tasked with attempting to reconcile and re-establish communities annihilated by the conflict and punish offenders effectively and proportionately. This all had to be done in an expeditious and sensitive way.
It can be asserted with confidence that any approach to managing the Rwandan Genocide would have been ill-equipped to account for the scale and nature of the crimes committed. The debate surrounding the efficacy and legitimacy of the Gacaca courts is one which persists to date.
It is dependent on one’s interpretation of justice as to which side of the argument is most compelling.
Apuuli K. P. (2009). Procedural due process and the prosecution of genocide suspects in Rwanda. Journal of Genocide Research, 11, 11-30.
Center for Conflict Management of the National University of Rwanda. (2012). Evaluation of gacaca process: Achieved results per objective. Study commissioned by National Service of Gacaca Courts. Kigali, Rwanda.
Daly E. (2002). Between punitive and reconstructive justice: The Gacaca courts in Rwanda. New York University Journal of International Law and Politics, 34, 355-396.
Justice on the Rights and Well-Being of Genocide Survivors, Journal of Human Rights,161-188
Melvern, L. (2000) A People Betrayed. London: Zed Books
Penal Reform International. (2010). Eight Years on … A Record of Gacaca Monitoring in Rwanda. Available: [online] https://www.penalreform.org/wp-content/uploads/2013/05/WEB-english-gacaca-rwanda-5.pdf [Accessed: 29/12/16].
Prunier, G. (1997) The Rwandan Crisis: A History of Genocide. London: Hurst
Rettig M. (2008). Gacaca: Truth, justice, and reconciliation in postconflict Rwanda? African Studies Review, 51(3), 25-50
Schimmel, N.(2012) The Moral Case for Restorative Justice as a Corollary of
Soyinka, W. (1998) ‘Hearts of Darkness’. New York Times [online] Available: http://www.nytimes.com/1998/10/04/books/hearts-of-darkness.html [Accessed 29/12/16]
Staub E. (2004). Justice, healing, and reconciliation: How the people’s courts in Rwanda can promote them. Peace and Conflict: Journal of Peace Psychology, 10, 25-32.
the Responsibility to Protect: A Rwandan Case Study of the Insufficiency of Impact of Retributive