Abstract
The crime of genocide triggers a multiplicity of questions regarding victims , perpetrators and bystanders . Transitional justice has tried to address the issues emerging from contexts marked by genocidal violence: possible forms of accountability for perpetrators, repair and healing for the victims and reconciliation for the society involved. However, systematic analysis in the field of transitional justice is embryonic and there is little evidence concerning its achievements in terms of reconciliation, peace-building and healing. This book concentrates on the most ambitious programme of prosecution for genocide-related crimes ever: Rwandan gacaca courts. Gacaca courts aimed at punishing the genocide perpetrators, searching for the truth , encouraging dialogue between former enemies, reconstructing the social fabric, repairing the harm to victims and achieving reconciliation. Gacaca courts have also drawn attention to the use of traditional customary patterns of justice as a transitional justice instrument, emerging as a possible model for prospective transitional justice strategies. Due to their key features, grass-roots nature, flexible procedures, presence of lay judges directly elected by the population that witnessed the genocide and lack of defence lawyers, gacaca courts have triggered a heated debate. This chapter explains why Rwanda has emerged as a key test for transitional justice and how the analysis of gacaca as an accountability, reparation and reconciliation mechanism is articulated.
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- 1.
Alain Resnais, Night and Fog, 1955.
- 2.
Convention on the Prevention and Punishment of the Crime of Genocide, adopted by resolution 260 (III) of the United Nations General Assembly on 9 December 1948.
- 3.
See the Guardian, Unseen Alfred Hitchcock Holocaust documentary to be released, at http://www.theguardian.com/film/2014/jan/10/unseen-alfred-hitchcock-holocaust-documentary-screening. Last accessed 9 June 2015.
- 4.
See Halpern and Weinstein 2004, pp. 303–304.
- 5.
Letschert et al. 2011.
- 6.
Laraux 1997.
- 7.
Agamben 2015.
- 8.
Adorno 1951.
- 9.
Arendt 1964.
- 10.
See Agamben 1999, preface, p. 11: ‘We can enumerate and describe each of these events, but they remain singularly opaque when we truly seek to understand them. This discrepancy and unease has perhaps never been described more directly than by Zelman Lewental, a member of the Sonderkommando who entrusted his testimony to a few sheets of paper buried under crematorium, which came to light seventeen years after the liberation of Auschwitz. “Just as the events that took place there cannot be imagined by any human being,” Lewental writes in Yiddish, “so is it unimaginable that anyone could exactly recount how our experiences took place. We, the small group of obscure people who will not give historians much work to do.” What is at issue here is not, of course, the difficulty we face whenever we try to communicate our most intimate experiences to others. The discrepancy in question concerns the very structure of testimony. On the one hand, what happened in the camps appears to the survivors as the only true thing and, as such, absolutely unforgettable; on the other hand, this truth is to the same degree unimaginable, that is, irreducible to the real elements that constitute it. Facts so real that, by comparison, nothing is truer; a reality that necessarily exceeds its factual elements—such is the aporia of Auschwitz. As Lewental writes, “the complete truth is far more tragic, far more frightening.” More tragic, more frightening than what? Lewental had it wrong on at least one point. There is no doubt that “the small group of obscure people” (“obscure” here is to be understood in the literal sense as invisible, that which cannot be perceived) will continue to give historians work to do. The aporia of Auschwitz is, indeed, the very aporia of historical knowledge: a non-coincidence between facts and truth, between verification and comprehension’ (emphasis added).
- 11.
Agamben defines Primo Levi ‘Implacable land surveyor of the Muselmannland’ (translation by the author) referring to the zone were the victims of the Holocaust dwelt before death. ‘Muselmann’ was the term used in Auschwitz and other concentration camps to identify those prisoners whose will was completely annihilated by the Nazi and were destined for death. In the words of Amery ‘The so-called Muselmann, as the camp language termed the prisoner who was giving up and was given up by his comrades, no longer had room in his consciousness for the contrasts good or bad, noble or base, intellectual or unintellectual. He was a staggering corpse, a bundle of physical functions in its last convulsions’. See ibid., p. 41 (quoting: Améry 1977, p. 39).
- 12.
Levi 1997 quoted in ibid., pp. 14–15.
- 13.
Ibid., p. 17, where the author affirms that ‘Victim and executioner are equally ignoble; the lesson in the camps is brotherhood in abjection’.
- 14.
- 15.
Arendt et al. 1992, p. 54.
- 16.
Ibid., p. 20.
- 17.
Drumbl 2007.
- 18.
Garland 2012. Helena Cobban interestingly noticed that ‘The Rwandan genocide throws into profound relief many of the cosmological and ethical assumptions—about the nature of individual responsibility, the purpose of punishment, and the normal conditions of human life—upon which our contemporary criminal-court system is based. We in the West seldom examine these assumptions. But the Rwandan case challenges them deeply and calls on us to tread lightly and carefully before we spread the mantle (or strait-jacket) of our criminal justice system over populations or situations to which it may be fundamentally unsuited’, Cobban 2002.
- 19.
Drumbl 2007.
- 20.
See Drumbl 2000, pp. 1224–1225.
- 21.
Ibid.
- 22.
See Mamdani 2002, p. 271.
- 23.
On this point see UN Security Council 1994, as well as Hassan Bubacar Jallow, The contribution of the United Nations International Criminal Tribunal for Rwanda to the development of international criminal law, in Clark and Kaufman 2009, p. 262.
- 24.
- 25.
See Palmer 2015, p. 45.
- 26.
Ibid.
- 27.
The RPA was the armed wing of the Rwandan Patriotic Front, a political movement formed in 1987 by the Tutsi refugee diaspora in Uganda. Led by the current Rwandan President Paul Kagame, the Rwandan Patriotic Front has ruled Rwanda since 1994, when it took the power immediately after the end of the genocide.
- 28.
For a comprehensive study of the ICTR case law see Human Rights Watch 2010.
- 29.
See Mamdani 2001, pp. 20–35.
- 30.
Chakravarty 2015, p. 7.
- 31.
- 32.
Ibid., p. 2.
- 33.
Ibid.
- 34.
Ibid.
- 35.
- 36.
See Waldorf 2006a, p. 7.
- 37.
Ibid., pp. 7–8.
- 38.
Ibid., p. 8.
- 39.
Chakravarty 2015, p. 7.
- 40.
- 41.
- 42.
- 43.
See, for instance, Clark 2010. Roberto Unger has provided a clear distinction between formal and substantive justice. He argued that ‘One way is to establish rules to govern general categories of acts and persons, and then to decide particular disputes among persons on the basis of the established rules. This is legal justice. The other way is to determine goals and then, quite independently of rules, to decide particular cases by a judgement of what decision is mostly likely to contribute to the predetermined goals, a judgement of instrumental rationality. This is substantive justice’, Unger 1976, p. 89.
- 44.
Haveman and Muleefu 2011, pp. 219–244.
- 45.
See Sikkink 2011. See also Sikkink, Making Tyrants Do Time, The New York Times, 16 September 2011: ‘Historical and statistical evidence gives us reason to question criticisms of human rights trials. My research shows that transitional countries—those moving from authoritarian governments to democracy or from civil war to peace—where human rights prosecutions have taken place subsequently become less repressive than transitional countries without prosecutions, holding other factors constant (…) Although civil war heightens repression, prosecutions in the context of civil war do not make the situation worse, as critics claim’. http://www.nytimes.com/2011/09/16/opinion/making-tyrants-do-time.html. Last accessed 27 February 2018.
- 46.
- 47.
See Organic Law No 04/2012/OL of 15/06/2012 Terminating Gacaca Courts and Determining Mechanisms for Solving Issues Which Were Under Their Jurisdiction.
- 48.
- 49.
See Ingelaere 2016, p. 8.
- 50.
Ibid., p. 10.
- 51.
Ibid.
- 52.
See McEvoy 2007, p. 414, where the author argues that legal scholars are often ‘largely disconnected from the real lives of those affected by the legal system’, as ‘it is broadly less likely to reflect critically on the actions, motivations, consequences, philosophical, assumptions or power relations which inform legal actors and shape legal institutions. A thicker understanding of transitional justice is therefore intended to counteract at least some of these tendencies’.
- 53.
See McEvoy and McGregor 2008.
- 54.
See Pozen et al. 2014.
- 55.
The term ‘subaltern studies’ is linked to the use by scholars of an approach defined as ‘history from below’, focused more on the factors that impact the life of the masses than on what occurs to the upper layers of the society, the elite. The term ‘subaltern’ refers to the work of the Italian Marxist and antifascist opponent Antonio Gramsci (1881–1937). Literally, ‘subaltern’ designs any individual of inferior rank and status because of a plurality of reasons including race, sex, class, religion, ethnicity, sexual orientation, education and incomes.
- 56.
This idea is borrowed from Lollini 2005.
- 57.
Ibid.
- 58.
See Kaldor 1999.
- 59.
On this point see Lollini 2005.
- 60.
On the relevance of transitional justice in the Libyan constitution drafting process, see International Commission of Jurists 2015.
- 61.
See Rettig 2008, pp. 26–27: ‘not nearly enough is known about how Rwandans view gacaca. Empirical evidence about Rwandan attitudes toward gacaca and post-conflict reconciliation is scant, out-of-date, and suspiciously positive given the range of problems documented by observers. For example, a public opinion survey conducted in early 2002, after the election of gacaca judges but before the courts had begun to function, found that 83% of Rwandans had confidence in gacaca (Longman et al. 2004). In an earlier survey, 53% of respondents said they were “highly confident” that gacaca would promote a lasting peace (Ballabola 2001). A third survey, conducted in 2003 by Rwanda’s National Unity and Reconciliation Commission (NURC), revealed some sceptical attitudes toward gacaca but still was generally positive (NURC 2008). These results seemingly contradict most qualitative evidence and raises several questions: if Rwandans support gacaca in high numbers, why do officials resort to threats and fines to achieve a quorum at gacaca sessions? Why do interviews with Rwandans reveal deep concern about gacaca’s ability to promote truth, justice, and reconciliation?’.
- 62.
Ibid.
- 63.
- 64.
Penal Reform International (PRI) 2002a, p. 7: ‘Although the study did not originally include ethnicity, this experience forced the research team to take also the concept and role of ethnicity into account to understand the views, needs, fears and interests of various groups concerning the gacaca programme and its consequences. Research experience over several months has reinforced the clear impression that the importance of ethnicity remains crucial for many Rwandans in describing their own identities and relationship to others’.
- 65.
Government of Rwanda 2012.
- 66.
See on this point Wojkowska 2006.
- 67.
Ibid.
- 68.
See Diehl et al. 2015, p. 57.
- 69.
Wojkowska 2006.
- 70.
Ibid.
- 71.
Ibid.
- 72.
Ibid.
- 73.
Ibid., pp. 11–12: ‘in Malawi between 80 and 90% of all disputes are processed through customary justice forums; In Bangladesh an estimated 60–70% of local disputes are solved through the Salish; In Sierra Leone, approximately 85% of the population falls under the jurisdiction of customary law, defined under the Constitution as ‘the rules of law, which, by custom, are applicable to particular communities in Sierra Leone; Customary tenure covers 75% of land in most African countries, affecting 90% of land transactions in countries like Mozambique and Ghana; There are estimates claiming that up to 80% of Burundians take their cases to the Bashingantahe institution as a first or sometimes only instance’.
- 74.
See UN Security Council 2004, para 8, p. 12.
- 75.
See Kötter et al. 2015, preface, ix.
- 76.
Ibid.
- 77.
- 78.
On this point, see Huyse and Salter 2008, p. 1.
- 79.
See Alessi 2002.
- 80.
On this point, see Griek 2006, pp. 1–5.
- 81.
On this point, see Huyse and Salter 2008, pp. 181–198.
- 82.
See Waldorf 2006a, p. 4.
References
Adorno TW (1951) Kulturkritik und Gesellschaft. In: Soziologische Forschung in Unserer Zeit (pp. 228–240). VS Verlag für Sozialwissenschaften, Wiesbaden
Agamben G (1999) Remnants of Auschwitz: The Witness and the Archive. Zone Books, New York
Agamben G (2015) Stasis, Civil War as a Political Paradigm. Stanford University Press
Alessi G (2002) Il Processo Penale, Profilo Storico, Laterza, Bari-Rome
Améry J (1977) Jenseits von Schuld und Sühne. Bewältigungsversuche eines Überwältigen. F. Klett, Stuttgart
Amnesty International (2002) Rwanda: Gacaca: A Question of Justice. https://www.amnesty.org/en/documents/afr47/007/2002/en/. Last accessed 27 February 2018
Arendt H (1964) Eichmann in Jerusalem. Viking Press, New York
Arendt H et al (1992) Hannah Arendt/Karl Jaspers Correspondence, 1926–1969. Harcourt Brace Jovanovich, New York
Avocats Sans Frontières (2005) Rwanda: Rapport analytique des jurisdictions gacaca (I). Brussels/Kigali
Avocats Sans Frontières (2006) Rwanda: Rapport analytique des jurisdictions gacaca (II). Brussels/Kigali
Ballabola S (2001) Perceptions about the Gacaca Law in Rwanda: Evidence from a Multi-Method Study. Cahiers du Centre de Gestion des Conflits 3:112–13
Brounéus K (2010) The trauma of truth telling: Effects of witnessing in the Rwandan Gacaca Courts on psychological health. Journal of Conflict Resolution 54(3):408–437
Chakravarty A (2015) Investing in Authoritarian Rule: Punishment and Patronage in Rwanda’s Gacaca Courts for Genocide Crimes. Cambridge University Press
Clark P (2010) The Gacaca Courts, Post-genocide Justice and Reconciliation in Rwanda, Justice without Lawyers. Cambridge University Press, Cambridge
Clark P, Kaufman ZD (2009) After Genocide: Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond. Hurst & Company, London
Cobban H (2002) The Legacies of Collective Violence: The Rwandan Genocide and the Limits of the Law. Boston Review 27(2):4–15
Diehl K et al (2015) South Sudan: Linking the Chiefs’ Judicial Authority and the Statutory Court System. In: Non-State Justice Institutions and the Law. Palgrave Macmillan, London pp 55–79
Drumbl M (2000) Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda. NYU Law Review 75(5):1221–1326
Drumbl M (2007) Atrocity, Punishment, and International Law. Cambridge University Press, New York
Fierens J (2005) Gacaca Courts: Between Fantasy and Reality. Journal of International Criminal Justice, 3(4):896–919
Garland D (2012) Punishment and Modern Society. University of Chicago Press, Chicago
Government of Rwanda (2012) Summary of the Report Presented at the Closing of Gacaca Activities. National Service of Gacaca Jurisdictions, Kigali
Griek I (2006) Traditional Systems of Justice in Refugee Camps: The Need for Alternatives. Refugee Reports, 27(2):1–5
Haile D (2008) Rwanda’s Experiment in People’s Courts (gacaca) and the Tragedy of Unexamined Humanitarianism: A Normative/Ethical Perspective. Institute of Development Policy and Management, University of Antwerp
Halpern J, Weinstein HM (2004) Empathy and rehumanization after mass violence. In: My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, pp 303–22
Haveman RH, Muleefu A (2011) The Fairness of Gacaca. In: Rothe DL, Mullins CW (eds) State Crime: Current Perspectives. Rutgers University Press, New Brunswick, pp 219–230
Human Rights Watch (2008) Law and Reality, Progress in Judicial Reforms in Rwanda, https://www.hrw.org/report/2008/07/25/law-and-reality/progress-judicial-reform-rwanda. Last accessed 28 February 2018
Human Rights Watch (2010) Genocide, War Crimes and Crimes Against Humanity. A Digest of the Case Law of the International Criminal Tribunal for Rwanda. New York. http://www.hrw.org/node/87652. Last accessed 27 February 2018
Human Rights Watch (2011) Justice Compromised The Legacy of Rwanda’s Community-Based Gacaca Courts, https://www.hrw.org/report/2011/05/31/justice-compromised/legacy-rwandas-community-based-gacaca-courts. Last accessed 4 February 2018
Huyse L, Salter M (eds) (2008) Traditional Justice and Reconciliation after Violent Conflict. Learning from African Experiences. International Institute for Democracy and Electoral Assistance, Stockholm
Ingelaere B (2007) Does the Truth Pass Across the Fire without Burning? Transitional Justice and its Discontents in Rwanda’s Gacaca Courts, Discussion Paper. Institute of Development Policy and Management, University of Antwerp
Ingelaere B (2016) Inside Rwanda’s Gacaca Courts. The University of Wisconsin Press, Madison
International Commission of Jurists (2015) The Draft Libyan Constitution: Procedural Deficiencies, Substantive Flaws. http://www.refworld.org/pdfid/57ee86814.pdf. Last accessed 27 February 2018
Kaitesi U (2014) Genocidal gender and sexual violence. The legacy of the ICTR, Rwanda’s ordinary courts and gacaca courts. Intersentia, Cambridge/Antwerp/Portland
Kaldor M (1999) New and old wars: organized violence in the global era. Stanford University Press, Palo Alto
Kötter M et al (2015) Non-State Justice Institutions and the Law. Decision-Making at the Interface of Tradition, Religion and the State. Palgrave Macmillan, New York
Laraux N (1997) La cite divisée. Payot, Paris
Letschert RM et al (2011) Victimological Approaches to International Crimes: Africa. Supranational Criminal Law, 13. Intersentia, Cambridge/Antwerp/Portland
Levi P (1997) Conversazioni e interviste: 1963–1987 (Vol. 486). Einaudi, Turin
Lollini A (2005) Costituzionalismo e giustizia di transizione, Il ruolo costituente della commissione sudafricana verità e riconciliazione, Il Mulino, Bologna
Longman T, Phuong P, Weinstein H (2004) Connecting Justice to Human Experience. In: Stover E, Weinstein H (eds) My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity. Cambridge University Press, New York, pp. 206–25
Mamdani M (2001) A Diminished Truth. In: James W, Van De Vijver L (eds) After the TRC. Reflections on Truth and Reconciliation in South Africa. Ohio University Press, Athens
Mamdani M (2002) When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda. Princeton University Press, Princeton
McEvoy K (2007) Beyond Legalism: Towards a Thicker Understanding of Transitional Justice. Journal of Law and Society, 34(4):411–440
McEvoy K, McGregor L (eds) (2008) Transitional Justice from Below: Grassroots Activism and the Struggle for Change (Human Rights Law in Perspective). Hart Publishing, Oxford
National Unity and Reconciliation Commission (2008) Social Cohesion in Rwanda, An Opinion Survey, 2005–2007
Palmer N (2015) Courts in Conflict: Interpreting the Layers of Justice in Post-Genocide Rwanda. Oxford University Press
Penal Reform International (2000) Access to justice in sub-Saharan Africa. The role of traditional and informal justice systems. London
Penal Reform International (2002a) Gacaca jurisdictions and its preparations, July–December 2001, Research on Gacaca Report I. London-Kigali
Pozen J et al (2014) Assessing the Rwanda Experiment: Popular Perceptions of Gacaca in Its Final Phase, The International Journal of Transitional Justice, 8:31–52
Rettig M (2008) Gacaca: Truth, Justice and Reconciliation in Postconflict Rwanda? African Studies Review, 51(3):25–50
Sarkin J (2000) Promoting Justice, Truth, and Reconciliation in Transitional Societies: Evaluating Rwanda’s Approach in the New Millennium of Using Community-Based Gacaca Tribunals to Deal with the Past. International Law Forum du droit international
Sarkin J (2001) The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process, and the Role of the Gacaca Courts in Dealing with the Genocide. Journal of African Law
Schabas W (2005) Genocide Trials and Gacaca Courts. Journal of International Criminal Justice 3:879–895
Sikkink K (2011) The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (The Norton Series in World Politics). WW Norton & Company, New York
Sullo P (2015) Punishing Mass Atrocities: Penological Developments in the Aftermath of the Rwandan Genocide. In: Fijalkowski A, Grosescu R (2015) Transitional criminal justice in post-dictatorial and post-conflict societies. Intersentia, Cambridge/Antwerp/Portland
Thoms O et al (2008) The Effects of Transitional Justice Mechanisms. A Summary of Empiric Research Findings and Implications for Analysts and Practitioners Centre for International Policy Studies. University of Ottawa, Ottawa
UN Security Council (2004) The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General S/2004/616
Unger RM (1976) Knowledge and Politics. Free Press, New York
Vandeginste S (1999) Justice, Reconciliation and Reparation after Genocide and Crimes against Humanity: The Proposed Establishment of Popular Gacaca Tribunals in Rwanda, All-Africa Conference on African Principles of Conflict Resolution and Reconciliation, United Nations Conference Centre, Addis Ababa
Waldorf (2006a) Mass Justice for Mass Atrocities: Rethinking Transitional Justice as Local Justice. Temple Law Review, 79:1
Wibabara C (2014) Gacaca Courts versus the International Criminal Tribunal for Rwanda and National Courts. Lessons to Learn from the Rwandan Justice Approaches to Genocide. Nomos, Baden-Baden
Wojkowska E (2006) Doing Justice: How Informal Justice Systems Can Contribute. United Nations Development Programme, Oslo Governance Centre, The Democratic Governance Fellowship Programme
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Sullo, P. (2018). Introduction. In: Beyond Genocide: Transitional Justice and Gacaca Courts in Rwanda. International Criminal Justice Series, vol 20. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-240-8_1
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