The Courts of Genocide

Politics and the Rule of Law in Rwanda and Arusha

Nicholas Jones

• Publisher: Routledge-Cavendish
• Year: 2009
• Print ISBN: 9780415490702
• eBook ISBN: 9781134008780
• Edition: 1
• Topic: Law
• Subtopic: Criminal Procedure
• Index: Law

The Courts of Genocide focuses on the judicial response to the genocide in Rwanda in order to address the search for justice following mass atrocities. The central concern of the book is how the politics of justice can get in the way of its administration. Considering both the ICTR (International Criminal tribunal for Rwanda), and all of the politics surrounding its work, and the Rwandan approach (the Gacaca courts and the national judiciary) and the politics that surround it, The Courts of Genocide addresses the relationship between these three 'courts' which, whilst oriented by similar concerns, stand in stark opposition to each other. In this respect, the book addresses a series of questions, including: What aspects of the Rwandan genocide itself played a role in directing the judicial response that has been adopted? On what basis did the government of Rwanda decide to address the genocide in a legalistic manner? Around what goals has each judicial response been organized? What are the specific procedures and processes of this response? And, finally, what challenges does its multifaceted character create for those involved in its operation, well as for Rwandan society? Addressing conceptual issues of restorative and retributive justice, liberal legalism and cosmopolitan law, The Courts of Genocide constitutes a substantially grounded reflection upon the problem of 'doing justice' after genocide.

1
The Rwandan genocide and the judicial response

If you must remember, remember this …

The Nazis did not kill six million Jews …

Nor the Interahamwe kill a million Tutsis,

They killed one and then another, and then another …

Genocide is not a single act of murder, It is millions of acts of murder.

(Smith 2004)¹

Erected at one end of the Kanombe District Office parking lot, the Gacaca (pronounced ga-cha-cha) court, literally translated as justice on the grass in Kinyarwanda, is a collection of crudely constructed benches under the shade of a semi-permanent tarp. A truck arrives in the compound with two men, dressed in neatly pressed pink prisoners’ uniforms, sitting on the sides of the open box. The prisoners climb out of the back of the truck while the driver, who is also their armed police escort, gets out of the front. The crowd of approximately 100 people, who have been slowly gathering over the past hour, begin to find seats within the space delineated by the tarp. Once a week, members of the community descend upon this court to participate in this resurrected and modernized form of traditional Rwandan dispute-resolution mechanism.

This day, two men who have previously pled guilty to their crimes under the provisions outlined in the Gacaca Organic Law No 40 (2001) (later revised as Organic Law No 16; Government of Rwanda 2004a), will have their cases heard before the Inyangamugayo (literally translated as persons of integrity) who are community-elected judges in a process open to the entire community. The two accused prisoners take a seat in the front row, under the tarp, sitting beside and amongst other members of the community. Prior to the arrival of the judges, a brief exchange of greetings occurs between the accused and some members of the community. The formal arrival of the eight judges, each adorned with a sash in the blue and yellow colours of the Rwandan flag and inscribed with the word Inyangamugayo, take their seats behind a wooden table at the front of the court. In addition to the police escort, a red-uniformed individual representing the local defence force stands guard with an automatic weapon, under the shade of a nearby tree. The president of the court addresses the gathering and proceeds through a variety of formalities that signal the beginning of the court session.

The first defendant’s case is called before the court. It is June 2005. The accused, who has been incarcerated since 1994, stands at the front of the court. He is facing a charge of manning a roadblock, while in possession of a firearm, in the district of Kanombe, in rural Kigali, during the 1994 genocide. Although many people were killed at or in the vicinity of this roadblock, no evidence is presented to suggest that he directly participated in any of the killings. However, as part of his confession, the law compels him to provide the court with any information that he has regarding the events that transpired during that time, regardless of whether he was personally involved or not. A judge presents him with the legislated guidelines regarding confessions and their ramifications to ensure that he understands them; he reads his written confession before all in attendance. Witnesses present at the court verify his confession. The Inyangamugayos then make a determination in accordance with the law as to whether the confession is sincere, truthful, and full. All persons in attendance are included in the process, and they are permitted to ask questions of the accused, through the judges, as well as also participate in the discussions that may inform the judges’ eventual decision.

Approximately five and half hours after the start of the trial – without any breaks and continuing through a torrential downpour that lasted for almost an hour and a half – the judges leave the confines of the tarped area and move to a room in the District Office to discuss and render their decision on the case. Upon their return, 15 to 20 minutes later, they read their decision before the court. For his participation in the genocide, as outlined in his confession, the defendant receives a sentence of imprisonment for 12 years, plus 6 months of community service; the 12 years of imprisonment are imposed for manning the roadblock!

The defendant, who had been sitting with his head down and his hands covering his face during the pronouncement of the sentence, upon hearing the verdict lifts his head up with a decidedly relieved look on his face. With the time he has already served, his term of imprisonment is now finished. The local prison will hold one less detainee, at least for the time being, in the same overcrowded and arguably substandard conditions that exist throughout Rwanda.

Before finalizing the decision, a judge reads the entire hand-written transcript of the trial. The people in attendance openly discuss the transcripts for further clarification, amending them where required and, then, verify them one last time by signing the document. At the Kanombe District Gacaca, one trial was completed on that day and the other case held over to the following week. As the crowd disperses, his father among them, many address the defendant in what appears to be sentiments of congratulations.

According to Domitilla Mukantaganzwa, Executive Director of the Gacaca Jurisdiction in Kigali, throughout the country there are approximately

Figure 1.1 Gacaca in Kanombe.

760,000 outstanding cases that still require adjudication (Mukantaganzwa 2004). This single case may seem insignificant in the context of such numbers. However, given the circumstances that existed within Rwanda in the aftermath of the genocide – as part of a larger, multifaceted judicial process including the International Criminal Tribunal for Rwanda (hereafter referred to as ICTR), the Rwandan National Courts, and third-party trials adjudicated in foreign countries – each genocide case that is successfully completed demonstrates a culmination of extensive efforts to address the crimes of the genocide. As part of the Rwandan government’s efforts to adjudicate individuals accused of genocide crimes, the proceedings in Kanombe during 2005 were part of a national pilot-project utilizing Gacaca.

What is genocide?

The recent Rwandan genocide that shocked the sensibilities of the ‘civilized world’ is not without historical precedent. Indeed, according to Chalk and Jonassohn, genocidal behaviour has occurred from the human atrocities observed in the destruction of the city-state Carthage by the Romans in 146 BC through the medieval Crusades, European expansion and colonization,² the civil wars in the former Yugoslavia, Rwanda and, arguably, in the ongoing situation in the Darfur region of Sudan (Chalk and Jonassohn 1990:8). Schabas also notes that ‘the destruction of ethnic groups has marred the progress of human history almost from the beginning’ (Schabas 1999:1). That such examples of man’s inhumanity to man are pervasive throughout the course of history presents a need for consideration of a statement, albeit an eerie one, made by Adolf Hitler that, ‘natural instincts bid all living human beings not merely conquer their enemies but also destroy them. In the former days it was the victor’s prerogative to destroy tribes, entire peoples’ (as cited in Lemkin 1945).

In the aftermath of the Allied victory, despite the claim by Hitler and the actions taken by Germans during the course of the Second World War, perceived acceptance of such barbarity shifted. Through the elimination of what Chalk and Jonassohn refer to as a ‘process of collective denial’ (Chalk and Jonassohn 1990:8), these atrocities would become recognized, defined, and collectively rebuked.³ The specific circumstances of the Allied victory, the climate it created allowing victims to share their experiences, the conceptualization of human rights and the political climate both in Western and Eastern Europe, as well as the adherence to the ideology encapsulated within the rule of law and its resulting legalism, all played a part in the construction of a new era of international relations.

The atrocities that were part of the German war plan were recognized as the orchestrated destruction of entire groups of people based on an identifiable factor: race. According to Lemkin, ‘[R]eferring to the Nazi butchery in the present war, Winston Churchill said in his broadcast of August, 1941, “we are in the presence of a crime without a name”’ (Lemkin 1946). Lemkin coined the term ‘genocide’ responding to a void in terminology for dealing with such events. Genocide, ‘tragically enough must take its place in the dictionary beside other tragic words like homicide and infanticide’ (Lemkin 1946).

By examining the root parts of ‘genocide’ (genes: Greek for tribe or race, and cide: Latin for killing) we get the literal meaning of the word, the killing of a race or tribe. According to Lemkin’s initial conceptualization of the term, genocide ‘refers to a coordinated plan aimed at the destruction of the essential foundations of the life of national groups so that these groups would wither and die like plants that have suffered a blight’ (Lemkin 1946). He continues in his discussion by outlining the methods – political, social, cultural, religious, moral, economic, biological, and physical – by which the desired result can be achieved. Significantly, Lemkin further examines the elements that distinguish between genocide and individual killings: ‘Genocide is directed against a national group as an entity and the attack on individuals is only secondary to the annihilation of the national groups to which they belong’ (Lemkin 1946).

Lemkin’s (1946) conceptualization of genocide includes a second defining aspect of the commission of genocide that addressed not the actions of the accused, but rather the level of intervention and/or response that such actions would suggest. Lemkin argued that ‘by its very legal, moral, and humanitarian nature, [genocide] must be considered an international crime’ (Lemkin 1946). The acts present an affront to all humanity and therefore concern the international community as a whole. Genocide, by virtue of its international consequences, therefore required a distinctly international means to address it. He further argues that ‘[t]he significant feature of international crime is a recognition that because of its international importance it must be punished and punishable through international cooperation. The establishment of international machinery for such a purpose is essential’ (Lemkin 1946). The international and cooperative nature of such a response to genocide provides a level of condemnation that is unattainable at a national level. Lemkin referred to this reaction as the Principle of Universal Repression.

The United Nations discussed this principle and suggested the machinery that might accompany it. According to Chalk and Jonassohn (1990), the United Nations took its first step on the path towards addressing the crime of genocide in response to the urging of Lemkin. Incorporating much of the language found in Lemkin’s work – although differences existed in defining potential victim groups – the idea of international condemnation for the crime of genocide was about to be realized in an international forum. According to Jacobs (2002), although the final definition of genocide incorporated into the Genocide Convention was not as broad as laid out originally by Lemkin, he is nevertheless considered to be the originator of the term and was instrumental in moving the United Nations on the path leading to the drafting of the Convention.

After 3 years of di...

Table of contents

• Contents
• List of tables and figures
• Acknowledgements
• 1 The Rwandan genocide and the judicial response
• 2 A historical and conceptual framework for understanding justice in the aftermath of the Rwandan genocide
• 3 The Gacaca courts
• 4 The Rwandan national judiciary
• 5 The International Criminal Tribunal for Rwanda
• 6 International jurisprudence: definitions of the crimes and the key precedents
• 7 Issues impacting the search for justice: witness protection, hearsay evidence, and plea bargaining
• 8 Conclusions, predictions, and reflections
• References
• Appendix 1
• Index