Genocide trials and gacaca courts

Journal of International Criminal Justice

Volumn 3, Issue 4, 2005, Pages 879-895

  Schabas, William A ^a  

^a NATIONAL UNIVERSITY OF IRELAND   (Ireland)

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EID: 26444553577     PISSN: 14781387     EISSN: None     Source Type: Journal    
DOI: 10.1093/jicj/mqi062     Document Type: Article

References (73)

1. Cited in The Listener, 14 December 1939, p. 1153. Nansen may have borrowed the words from a personality of the French Revolution, Charles Alexandre de Calonne, who said: 'Madame, si c'est possible, c'est fait; impossible? Cela se fera.'
2. See J. Michelet, Histoire de la Révolution française (in seven volumes, 1847-1853; 2nd edn, edited by G. Walter, Gallimard: collection Bibliothèque de la Pléiade, 1952) Vol. I, Pt 2, s. 8. Also known as a slogan of the United States Armed Forces: 'The difficult we do immediately; the impossible takes a little longer.'
3. But, as the International Commission of Inquiry on Darfur helpfully points out: 'The conclusion that no genocidal policy has been pursued and implemented in Darfur by the Government authorities, directly or through the militias under their control, should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region. International offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide.' See Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005 at 4. The authorities remain unsettled as to where the line should be drawn between genocide and the cognate category of crimes against humanity. See, e.g. ICTY Judgment, Krstić (IT-98-33-A), Appeals Chamber, 19 April 2004, § 41-58; ICTY Judgment, Blagojevic and Jokić (IT-02-60-T), Trial Chamber I, 17 January 2005, § 633-686.
4. According to a UN report in 1999, '[w]hile regular food is not provided in the cachots, the almost 86,000 detainees in the prisons under the Ministry of Justice alone cost Rwanda 2 per cent of its national budget: Report on the situation of human rights in Rwanda submitted by the Special Representative, Mr. Michel Moussalli, pursuant to resolution 1998/69. UN doc. E/CN.4/1999/33, §30.
5. On the 'impossibility' theme, see also W.A. Schabas, 'Justice, Democracy and Impunity in Post-Genocide Rwanda: Searching for Solutions to Impossible Problems', 8 Criminal Law Forum (1997) 523;
6. W.A. Schabas, 'The Rwanda Case: Sometimes it's Impossible', in M.C. Bassiouni (ed.), Post-Conflict Justice (Ardsley, New York: Transnational, 2002) 499.
7. Judgment, Akayesu (ICTR-96-4-T), Trial Chamber 1, 2 September 1998, §17.
8. E. Daly, 'Transformative Justice: Charting a Path to Reconciliation', 12 International Legal Perspectives (2001-2002) 73;
9. E. Daly, 'Between Punitive and Reconstructive Justice: The Gacaca Courts in Rwanda', 34 New York University Journal of International Law & Policy (2002), at 355. Others remain doubtful about how far legal approaches can contribute to reconciliation.
10. M.A. Drumbl, 'Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda', 75 New York University Law Review (2000) 1121.
11. M. Day, 'Alternative Dispute Resolution and Customary Law: Resolving Property Disputes in Post-Conflict Nations, a Case Study of Rwanda', 16 Georgetown Immigration Law Journal (2001) 235.
12. P. Wald, 'The Omarska Trial: A War Crimes Tribunal Close-Up', 57 Southern Methodist University Law Review (2004) 271. As Carsten Stahn noted, '[s]uch a far-reaching transformation of a country's legal system, allowing legally untrained members of a local community to impose formal criminal sanctions on persons suspected of having committed medium-level or even severe crimes, raises serious concerns relating to the right to be tried by a competent, independent, and impartial tribunal by means of procedures established by law'.
13. C. Stahn, 'Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor', 95 American Journal International Law (2001) 952, at 964.
14. 'Drawing from the experience and figures accruing from the pilot trials, we estimate a figure slightly above one million people that are supposed to be tried under the gacaca courts,' Ms Mukantaganzwa told Reuters in Kigali (A. Meldrum, '1 million Rwandans to face killing charges in village courts', The Guardian, 15 January 2005).
15. 'UN tribunal's database of genocide suspects ready for use', Xinhua News Agency, 20 December 2004.
16. Although international law has struggled to provide a normative framework for the process, there is still enormous variation in terms of practice. Some countries have done simply nothing. Some - Cambodia is an example - have prevaricated for years, publicly pledging commitment to a process yet constantly devising new obstacles, leaving few observers very confident about its sincerity. South Africa and Sierra Leone opted for truth commissions and amnesty. Sierra Leone subsequently reversed itself, agreeing to prosecution by an international tribunal of 'those who bear the greatest responsibility', a concept whose application seems to have more to do with the generosity of international donors in an institution dependent on voluntary contributions than any autonomous legal meaning. The 'international community' ostensibly supported Sierra Leone's efforts at criminal accountability, but actually contributed only enough money for a handful of trials.
17. The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the Secretary-General. UN doc. S/ 2004/616.
18. Report of the International Commission of Inquiry into Human Rights Violations in Rwanda, Paris, Brussels, Montréal, 1993;
19. O.-L. Bouvier, 'Magistrature: Sous le diktat de l'exécutif', in 162 Dialogue (January 1993), at 4-24.
20. Several international studies were produced at the time: Pour un système de justice au Rwanda, Rapport d'une mission exploratoire effectuée par l'Hon. Jacques Lachapelle, juge à la Cour du Québec (Chambre civile), et le Pr William A. Schabas, directeur du Département des sciences juridiques, Université du Québec à Montréal, du 27 novembre an 6 décembre 1994, International Centre for Human Rights and Democratic Development, Montreal; Rapport de la mission Union Interafricaine des droits de l'homme/Synergie à Kigali du 15 au 22 octobre 1994; Mission francophone d'évaluation des besoins prioritaires dans le domaine de l'état de droit et des droits de l'homme au Rwanda du 17 au 21 novembre 1994, Agence de coopération culturelle et technique, Paris; Report, Joint Mission to Evaluate Needs of Justice System, UNDP, UNCHR, UNHCHR, USAID, Swiss Cooperation, ACCT, ICJ, IPA, Lisbon Forum, ICHRDD, 2 December 1994.
21. Projet d'appui à la reconstruction du système judiciaire rwandais du Ministère de la justice. UN doc. TCB/BT2/8/Add.9, 7 November 1994.
22. Aperçu de la situation, in La lettre hebdomadaire de la Fédération internationale des droits de l'homme, hors série no 206, June 1995, at 25-26.
23. According to the Rwandan Code de procédure pénale, which governed the procedural regime at the time of the first arrests, in the case of an offence involving a possible sentence of six months or more, the accused could be detained in custody pending trial if des indices sérieux de culpabilité (serious grounds suggesting guilt) could be shown. See Code de procédure pénale, in F. Reyntjens and J. Gorus (eds), Codes et lois du Rwanda (2nd edn, Butare, Bruxelles: Université Nationale du Rwanda, 1999), Art. 37, 561-578;
24. W.A. Schabas and M. Imbleau, Introduction to Rwandan Law (Montreal: Éditions Yvon Blais, 1997), 60-61. The accused person was required to appear before a judge within five days of issuance of a provisional arrest warrant by an official from the Prosecutor's Office, and the five-day time limit could only be exceeded where this was strictly necessary. Preventive detention could then be authorized by the presiding judge of the court of first instance (Art. 38). Any order of detention remained in force for 30 days, and could be extended on a monthly basis as long as the public interest and the exigencies of the proceedings so required (Art. 41).
25. Pour un système de justice au Rwanda, supra note 14.
26. Rwanda, Office of the President, Recommendations of the Conference Held in Kigali from 1 to 5 November 1995, on 'Genocide, Impunity, and Accountability': Dialogue for a National and International Response, Kigali, 1995;
27. C. Braeckman, Terreur africaine (Paris: Fayard, 1996), 323-337. The author participated in the Kigali Conference and was responsible for delivering its conclusions and final report on 5 November 1995.
28. Organic Law No. 08/96 of 30 August 1996 on the Organisation of Prosecutions for Offences Constituting the Crime of Genocide or Crimes against Humanity committed since 1 October 1990, J.O., 1996, Year 35, No. 17, p. 14. In the Rwandan system, an Organic Law ranks hierarchically immediately beneath the Constitution. Organic Laws are adopted with a view to specifying or completing provisions of the Constitution, according to special procedures which must be rigorously respected.
29. See Judgment and Sentence, Kambanda (ICTR-97-23-S), Trial Chamber I, 4 September 1998, §18.
30. The 1996 legislation has been referred to regularly in judgments of the ICTR, generally within the context of sentencing convicted persons. The Prosecutor has often cited the national legislation with reference to Art. 23(1) ICTRSt., which directs: 'The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of Rwanda' (UN doc. S/ RES/955, annex). The Prosecutor has argued that offenders at the ICTR are, by and large, within category 1 of the Rwandan legislation. Were they to be tried in Rwanda, they would be exposed to the death penalty or life imprisonment, and this is invoked to justify a harsh sentence at the ICTR. Actually, Art. 23(1) ICTRSt. was intended to ensure respect of the nulla poena sine lege principle. In other words, its purpose is to protect the defendant, rather than to justify severe punishment.
31. Situation of Human Rights in Rwanda, GA Res. 51/114, §10.
32. Ibid., §11.
33. C. Tomlinson, 'UN Report Blasts Rwanda Trials', Associated Press, 11 January 1997.
34. 'Rwanda Unfair Trials: Justice Denied', April 1997 (AI Index AFR 47/008/ 1997).
35. 'The steps taken towards bringing the perpetrators of the genocide to justice and compensating civil claimants are to be welcomed. Progress has been made since the commencement of the genocide trials, including the increased number of witnesses testifying in court; the improvement in detainees' access to case files; and the increase in the granting of reasonable requests for adjournments.... However, several aspects of the proceedings remain cause for concern, in particular the lack of full respect for some fair trial guarantees as required by Rwandan law and article 14 of the International Covenant on Civil and Political Rights, and the lack of legal representation in many cases, as well as a general lack of opportunity for category-one defendants to cross-examine witnesses. These shortcomings can be particularly serious given the fact that if found guilty, under Rwandan law, the accused may face the death penalty...' (§ 64-65 of the Report of the United Nations High Commissioner for Human Rights on the Human Rights Field Operation in Rwanda. UN doc. A/52/486, annex). See also Decision 5(53) of the Committee for the Elimination of Racial Discrimination, adopted 18 August 1998, §10.
36. The judgment in Karamira is reported: Ministère Public v. Karamira, 1 Receuil de jurisprudence contentieux du génocide et des massacres au Rwanda (1st inst., Kigali, 14 February 1997) 75.
37. 'Gacaca, A Question of Justice', December 2004 (AI Index: AFR 47/007/ 2002), at 18.
38. Report of the United Nations High Commissioner for Human Rights on the Human Rights Field Operation in Rwanda. UN doc. A/52/486, annex, §63.
39. Report on the situation of human rights in Rwanda submitted by the Special Representative, Mr. Michel Moussalli, pursuant to Commission resolution 1999/20. UN doc. E/CN.4/2000/41, §136.
40. Ibid., §137.
41. See, in this Journal, J. Fierens, 'Gacaca Courts: Between Fantasy and Reality'. According to Amnesty International, the decline in the number of trials in recent years is a consequence of reduced donor funding: 'Gacaca, A Question of Justice', December 2004 (AI Index: AFR 47/007/2002), at 16.
42. See M.H. Morris, 'The Trials of Concurrent Jurisdiction: The Case of Rwanda', 7 Duke Journal of Comparative and International Law (1997) 349;
43. C.M. Carroll, 'An Assessment of the Role and Effectiveness of the International Criminal Tribunal for Rwanda and the Rwandan National Justice System in Dealing with the Mass Atrocities of 1994', 18 Boston University International Law Journal (2000) 163.
44. A.S. Link (ed.), The Papers of Woodrow Wilson, Vol. 56 (Princeton: Princeton University Press, 1987), 534.
45. In his 1999 report, Special Representative Michel Moussalli 'commend[ed] the Government of Rwanda for its creative efforts to hasten the reduction of the caseload' and he 'encourage[d] the Government of Rwanda to persevere in these efforts and to ensure that all such measures are in conformity with established human rights standards' (Report on the situation of human rights in Rwanda submitted by the Special Representative, Mr. Michel Moussalli, pursuant to resolution 1998/69. UN doc. E/CN.4/1999/33, §76). The Special Representative proposed to the Rwandan authorities that 'serious consideration should be given to releasing, on humanitarian grounds, the sick and the elderly, minors and children for whom alternatives to imprisonment can be found, and those identified as having case files belonging to the lower categories according to the Organic Law, where the length of their pre-trial detention exceeds that of the sentence they are likely to receive' ( ibid., §77). The General Assembly, in its 1998 Resolution on Rwanda, similarly '[w]elcome[d] and encourage[d] the release of minors, elderly prisoners, prisoners suffering from terminal illnesses and suspects with incomplete files, who were detained for their alleged involvement in the genocide and other abuses of human rights...' (Situation of Human Rights in Rwanda. UN doc. A/RES/53/ 156, §14).
46. Ministère Public v. Barayagwiza, 3 Receuil de jurisprudence contentieux du génocide et des massacres au Rwanda (Conseil de guerre, Kigali, 26 November 1998), 309.
47. Ministère Public v. Murindangwe, 1 Receuil de jurisprudence contentieux du génocide et des massacres au Rwanda (1st inst., Kibungo, 28 July 2000), 63.
48. Ministère Public v. Nzirasanaho&Munyakazi, 1 Receuil de jurisprudence contentieux du génocide et des massacres au Rwanda (1st inst., Nyamata, 9 September 1998), 147;
49. Ministère Public v. Bizuru et al., 3 Receuil de jurisprudence contentieux du génocide et des massacres au Rwanda (1st inst., Kibungo, 22 September 2000), 175;
50. Ministère Public v. Nsabimana, 5 Receuil de jurisprudence contentieux du génocide et des massacres au Rwanda (1st inst., Kibungo, 3 February 2000), 139.
51. Ministère Public v. Ndikubwimana, 2 Receuil de jurisprudence contentieux du génocide et des massacres au Rwanda (1st inst., Butare, 7 July 1997), 9.
52. See also Ministère Public v. Ndererehe&Rwakibibi, 2 Receuil de jurisprudence contentieux du génocide et des massacres au Rwanda (1st inst., Nyamata, 21 October 1999), 181.
53. Ministère Public v. Namahirwe, 2 Receuil de jurisprudence contentieux du génocide et des massacres au Rwanda (1st inst., Byumba, 19 November 1997), 23;
54. Ministère Public v. Nduwumwami, 2 Receuil de jurisprudence contentieux du génocide et des massacres au Rwanda (1st inst., Cyangugu, 6 October 1997), 35; Ministère Public v. Munyawera et al., 2 Receuil de jurisprudence, contentieux du génocide et des massacres au Rwanda (1st inst., Gikongoro, 28 March 1997), 45.
55. Ntimugura et al. v. Ministère Public, 5 Receuil de jurisprudence contentieux du génocide et des massacres au Rwanda (C.A., Cyangugu, 24 July 2002), 261.
56. Ministère Public v. Sebishyimbo et al., 2 Receuil de jurisprudence contentieux du génocide et des massacres au Rwanda (C.A. Ruhengeri, 30 December 1998), 263.
57. Ministère Public v. Mukansangwa, 3 Receuil de jurisprudence contentieux du génocide et des massacres au Rwanda (1st inst., Nyamata, 31 July 2000), 221;
58. Ministère Public v. Munyaneza, 5 Receuil de jurisprudence contentieux du génocide et des massacres au Rwanda (1st inst., Gitarama, 17 August 1998), 117.
59. Ministère Public v. Munyaneza, 5 Receuil de jurisprudence contentieux du génocide et des massacres au Rwanda (1st inst., Gitarama, 17 August 1998), 117.
60. 'Gacaca, A question of justice', December 2004 (AI Index: AFR 47/007/ 2002), 17.
61. Munyangabe v. Ministère Public, 3 Receuil de jurisprudence contentieux du génocide et des massacres au Rwanda (C.A. Cyangugu, 6 July 1999) 255, at 261.
62. Ministère Public v. Munyangabo et al., 4 Receuil de jurisprudence contentieux du génocide et des massacres au Rwanda (1st inst., Gikongoro, 10 June 1998), 89.
63. L.D. Tully, 'Human Rights Compliance and the Gacaca Jurisdictions in Rwanda', 26 Boston College International and Comparative Law Review (2003) 385, citing an unpublished paper by Stef Vandeginste.
64. J. Sarkin, 'The Tension Between Justice and Reconcilliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with the Genocide, 45 Journal of African Law (2001) 143, at 159.
65. See also J. Sarkin, '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', 2 International Law Forum (2000) 112, at 118;
66. I.T. Gaparayi, 'Justice and Social Reconstruction in the Aftermath of Genocide in Rwanda: An Evaluation of the Possible Role of the Gacaca Tribunals', 1 African Human Rights Law Journal (2001) 78, at 83.
67. The phenomenon has been studied by F.-X. Nzanzuwera, who was formerly a prosecutor in Kigali. See F.-X. Nzanzuwera, Les juridictions 'gacaca', une réponse au génocide rwandais ou le difficile équilibre entre châtiment et pardon, La répression internationale du génocide rwandais (Brussels: Bruylant, 2003).
68. L.D. Tully, supra note 48, at 396-397.
69. The 2001 Organic Law began with a lengthy preamble which read, in part: 'The establishment of such a legal system is justified by the fact that offences that constitute the crime of genocide or crimes against humanity were committed publicly in full view of the population. This non-dissimulation resulted from the fact that the public authorities, whose role is to plot the course for the population to follow, themselves incited the population commit crimes in order to generalize participation in them and thus be able to leave no survivors. This inspired the population, manipulated by the politicians, not even to attempt to conceal its criminal actions, since it was confident it was following the path indicated by the very persons who should have apprehended the population. For that reason it is essential that all Rwandans participate on the ground level in producing evidence, categorizing the perpetrators of the offences by taking into consideration the role they played, and establishing their punishments without applying the classic system of repression of offences, but instead, re-establishing peace and the return of citizens who were manipulated to commit crimes to the right path. As a result, the population who witnessed the atrocities committed shall achieve justice both for the victims and the persons suspected of being perpetrators of the offences, a justice based on evidence and not on passion. This justice shall be implemented within the framework of the 'gacaca jurisdictions', meeting at the cell, sector, commune, and prefecture level and composed of honourable persons appointed by their neighbours'. The preamble continued with a list of objectives of the gacaca courts: 1) Find out the truth about what happened since residents shall be called upon as eyewitnesses to the acts committed in their cells, and they shall compile a list of victims and perpetrators. 2) Accelerate the prosecution of genocide since those who know what happened shall testify in the presence of their neighbours on their hills. In addition, the trials shall be resolved by almost 11,000 'gacaca jurisdictions', while 12 specialized chambers used to take on this task. Finally, it should be hoped that the defendants can no longer seek to deny the evidence as a delaying tactic since they will be in front of eyewitnesses to their actions. 3) Continue the eradication of the culture of impunity by using any method that makes it possible to identify a person who took part in the tragedy, since once the truth is known, none of those who were complicit shall escape punishment, and the people will understand that an offence results in the conviction of the criminal without any exception whatsoever. 4) Punish those who played a part in the tragedy, reconcile the Rwandans, and strengthen their unity since the 'gacaca jurisdictions' system shall induce the residents of the same cell, sector, commune, and prefecture to collaborate in judging those who participated in the genocide, to discover the victims, and restore their rights to innocent people. The 'gacaca jurisdictions' system shall thus be the basis for collaboration and unity, especially since, once the truth is known, there shall no longer be any suspicions of guilt. The perpetrator shall be punished, and justice shall be rendered both to the victim and to any innocent imprisoned person who will be reintegrated into Rwandan society. 5) Prove the capacity of the Rwandan society to settle its own problems through a legal system based on Rwandan custom, since, although the cases that the 'gacaca jurisdictions' will have to hear, are different from these that are normally resolved within the gacaca framework, these jurisdictions fit well into the custom of settling differences by arbitration, even amicable arbitration.
70. Ibid., § 22-25.
71. Ibid., §25.
72. '60,000 genocide cases ready for Rwandan courts', Xinhua News Agency, 8 January 2005.
73. Judgment, Kamuhanda (ICTR-95-54A-T), 22 January 2004, §395; Judgment, Gacumbitsi (ICTR-2001-64-T), 17 June 2004, § 73 and 77-78.