Gacaca courts: Between fantasy and reality

Journal of International Criminal Justice

Volumn 3, Issue 4, 2005, Pages 896-919

  Fierens, Jacques ^a,b  

^a UNIVERSITY OF NAMUR   (Belgium)

^b UNIVERSITY OF LIÈGE   (Belgium)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 26444602057     PISSN: 14781387     EISSN: None     Source Type: Journal    
DOI: 10.1093/jicj/mqi069     Document Type: Article

References (84)

1. See E. Kant, Essai sur le mal radical, in Berlinische Monatschrift, 1792.
2. Hannah Arendt refers to radical evil in the context of concentration camps. See H. Arendt, Les origines du totalitarisme. Le système totalitaire, French translation by J.-L. Bourget, R. Davreu and P. Lévy (Paris: Seuil [Points Essais no. 307], 1972), at 180.
3. See J. Hatzfeld, Une saison de machettes. Récits (Paris: Seuil, 2003).
4. P. Levi, Si c'est un homme, French translation by M. Schruoffeneger (Paris: Juliard [Pocket no. 3117], 1987), Appendix, at 211, emphasis added.
5. See also: 'Notre sagesse, c'était de ne pas chercher à comprendre' ('We were wise not to try understanding'), at 124.
6. A long philosophical tradition, dating from Parmenid, presents evil as the lack of being and reason, even though certain authors, such as Leibniz, attempt to view it as rational.
7. See, on this issue, A. Garapon, Des crimes qu'on ne peut ni punir ni pardonner (Paris: Odile Jacob, 2002).
8. See J. Fierens, 'La non-définition des crimes contre l'humanité', La revue nouvelle (March 2000, no. 3) 36-49.
9. The Statute of the International Military Tribunal at Nuremberg included the prohibition of 'crimes against humanity', although 'genocide' is not expressly referred to. Only the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 introduced the incrimination in international law. See, on the development of this concept, W.A. Schabas, Genocide in International Law (Cambridge: Cambridge University Press, 2000), particularly at 14 ff.
10. See also J. Fierens, 'La qualification de génocide devant le Tribunal pénal international pour le Rwanda et devant les juridictions rwandaises', 6 Actualité du droit international humanitaire. Les dossiers de la Revue de droit pénal et de criminologie (2001) 181-209.
11. With the return of refugees and subsequent denunciations, this number rose to 120,000 in 1998. See 'Lawyers without Borders', Annual Report (1999).
12. On the specific nature of crimes committed by women during the genocide, as well as their status as victims, see J. Fierens (ed), Femmes et génocide. Le cas du Rwanda : Actes du colloque organisé par le Centre Droits fondamentaux&lien social de Namur le 20 septembre 2002 (Bruxelles: La Charte, 2003).
13. F. Mutagwera, 'Détentions et poursuites judiciaires au Rwanda', in J.-F. Dupaquier (ed.), La justice internationale face au drame rwandais (Paris: Karthala, 1996), at 17. Following the first outbursts of so-called 'interethnic' violence in 1959, 1,242 individuals were prosecuted; 94 were acquitted; 244 convicted and sentenced to imprisonment for a year or less; 773 to one to five years; 90 to five to 10 years, 39 to over 10 years; and two were sentenced to death. These convictions took place before independence, while Rwanda was under Belgian protectorate. The Belgian authorities decided to grant amnesty to individuals who had committed political crimes between 1 October 1959 and 1 April 1961 (Decree-Law no. 01/188 of 31 May 1961, BORU (1961), 997). Amnesty was not granted to those who had committed assassination, murder, arson leading to death, bodily torture and attacks aimed at devastation, massacre or looting, if the imposed sentence involved a five-year prison sentence. Accusations of impunity were therefore justified. For further details,
14. see F. Digneffe and J. Fierens (eds), Justice et gacaca: L'expérience rwandaise et le génocide (Namur: Presses universitaires de Namur, 2003), at 35-36.
15. Decree-Law no. 08/75 of 12 February 1975, approving and ratifying various international treaties on human rights, disarmament, prevention and repression of certain acts likely to endanger peace among human beings and nations.
16. Art. 5 provides: 'The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III'. In 2003, Rwanda adopted specific legislation: Law no. 33bis/2003 of 9 September 2003, repressing the crime of genocide, crimes against humanity and war crimes.
17. For an analysis of this law and its implementation (which is beyond the scope of this piece), see Digneffe and Fierens, supra note 8, at 64-73. Concerning the temporal application of the law, which will be identical for crimes before gacaca courts, in 1996, certain lawmakers proposed that the law punish genocide in general, without regard to limitations, while others argued that since the genocide began before 1990 and continued after 1994, the law should refer to genocide committed from 1959, i.e. the year of the first interethnic massacres. According to government representatives, 1 October 1990 was the date from which many people, particularly Tutsis, were killed. As for 31 December 1994, it was agreed that the genocide had ceased in July 1994, but that massacres were still perpetrated in various parts of the country; 31 December 1994 marked the end of all massacres.
18. See in this article, infra, 4.B.
19. According to the former department of 'gacaca courts', within the Supreme Court, the state spent 2,000,000,000 Frw of its budget for 1998 solely on purchasing food for the detainees. This amount, even though it took up two-thirds of the budget of the Ministry of Justice, still had to be supplemented by a substantial contribution from the ICRC. In 1999, 1,500,000,000 Frw was spent on food, i.e. half the Ministry's budget of 3,800,000,000 Frw; see http://www.inkiko-gacaca.gov.rw/pdf/ solution.pdf (visited 29 April 2005).
20. State agents had obviously received orders not to appear or not to provide conclusions. All judgments against the state were adopted by default. See Digneffe and Fierens, supra note 8, at 69-70.
21. Gacaca literally means grass, the lawn, and refers to the meeting of neighbours in front of a house. On the current gacaca courts, see F. Nzanzuwera, 'Les juridictions "gacaca", une réponse au génocide rwandais on le difficile équilibre entre châtiment et pardon', in L. Burgorgue-Larsen (ed), La répression internationale du génocide rwandais (Bruxelles: Bruylant, 2003), at 109-119.
22. Letter from the Vice-President of the Transitional National Assembly no. 105/AN/96 of 12 June 1996 and records of the Transitional National Assembly nos 208/AN/96, 210/AN/96-213/AN/96, 728/AN/2000 and 729/AN/2000 (unpublished).
23. Journal officiel, 15 March 2001. A presidential decree was adopted after the law: Presidential decree no. 12/01 of 26 June 2001, organizing the election of members of gacaca courts. See also presidential decree no. 26/01 of 10 December 2001, concerning alternative sentences to prison and community service.
24. Journal officiel, 15 July 2001.
25. 'A "gacaca court" is established in each cell, each sector, each district or city and in each province of the Rwandan Republic' (Art. 3 of Organic Law no. 40/2000,26 January 2001, setting up gacaca courts and organizing prosecutions for offences constituting the crime of genocide and crimes and humanity, committed between 1 October 1990 and 31 December 1994).
26. Article 3 of Organic Law no. 16/2004. There are 9,010 cells and 1,545 sectors in Rwanda.
27. See infra in this article, 4.B.4.
28. Art. 2(2), of Organic Law no. 16/2004.
29. Only certain individuals falling within category 1 may be sentenced to death. Under Art. 72 of Organic Law no. 16/2004, defendants within the first category who refused to have recourse to confess, plead guilty, repent and apologize, as stipulated under Art. 54 of the Organic Law, or whose confession, plea of guilt, repentance and apologies have been rejected, incur a death penalty or life imprisonment. Defendants in the first category who confess, plead guilty, repent and apologize incur a prison sentence ranging from 25 to 30 years maximum.
30. Articles 154 and 155 of the Constitution of 4 June 2003.
31. Rwandan military justice, which received substantial financial aid from the USA and Great Britain, opened 843 investigations in 1999; 295 trials were held; 58 individuals were acquitted; 28 sentenced to death; and 207 sentenced to prison for periods of one month up to life. It is difficult to evaluate how many of these cases concerned former soldiers of the RAF accused of genocide, how many involved soldiers of the RPA accused of human rights violations, and how many related to ordinary crimes or offences against military discipline; see Human Rights Watch, http://www.hrw.org/french/reports/rwfr/rwfr-10.htm#P198_47798 (visited 29 April 2005).
32. The Constitution was adopted by referendum on 26 May 2003, as confirmed by the Supreme Court in its decision no. 772/14.06/2003, handed down on 2 June 2003.
33. The preamble explicitly refers to the UN Charter of 26 June 1945, the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, the Universal Declaration of Human Rights of 10 December 1948, the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965, the International Convention on Civil and Political Rights of 19 December 1966, the International Covenant on Economic, Social and Cultural Rights of 19 December 1966, the Convention on the Elimination of all Forms of Discrimination against Women of 1 May 1980, the African Charter of Human and Peoples' Rights of 27 June 1981 and the Convention on the Rights of the Child of 20 November 1989.
34. See Art. 143.
35. See Art. 152 and Law no. 8/2004, establishing the organization, functioning and competence of gacaca courts.
36. See Art. 18.
37. See Art. 19.
38. See Art. 20.
39. See Art. 21.
40. See Art. 60(3).
41. See Art. 140, (2) to (4).
42. See Art. 141.
43. No specific law has been adopted, despite the fact that a proposal was discussed before parliament from July 2002 to February 2003.
44. For an analysis of political, historical, legal and criminological issues on the basis of the former legislation and observations until 2002, see Digneffe and Fierens, supra note 8. The following remarks add to that analysis, or flesh it out with regard to the new law, but are the sole responsibility of the present author.
45. See J. Rivero, Les libertés publiques (Paris: PUF, 1987), 5th edition, at 161-162.
46. M. Long, P. Weil, G. Braibant, P. Delvolvé and B. Genevois, Les grands arrêts de la jurisprudence administrative (Paris: Dalloz, 1999), 12th edition, at 596.
47. International norms have direct legal effect in the Rwandan system and primacy over national law. Certain international instruments had formerly been held as superior to the Constitution itself. Art. 17 of the Protocol on various issues and final provisions in the Fundamental Law of 5 May 1995 indicates such primacy: 'Concerning fundamental rights and freedom, the principles contained in the Universal Declaration of Human Rights of 10 December 1948 have primacy over the corresponding principles in the Constitution of the Republic of Rwanda of 10 June 1991 in case of conflict' (unofficial translation). Today, however, the Constitution's primacy is upheld. Art. 190 of the Constitution of 4 June 2003 states that international treaties and agreements which have been conclusively adopted are superior, from their publication in the Official Journal, to organic and ordinary laws, on condition of their performance by the other party. The Constitution is no longer referred to.
48. Customary international law could have been invoked to justify the prohibition on crimes against humanity, although this argument prompts discussions over the existence of such customary nature. The prohibition was established in 1994, though these crimes were only included twice, in the Charters of the International Military Tribunals at Nuremberg and for the Far East. For an opposing view, see J. Verhoeven, 'M. Pinochet, la coutume internationale et la compétence universelle', Journal des tribunaux (1999) 311.
49. 'The purpose of this Organic Law is to organize the putting in trial of persons prosecuted for having, between October 1, 1990 and December 31, 1994, committed acts qualified and punished by the penal code and which constitute: A) either crimes of genocide or crimes against humanity as defined by the Convention of December 9, 1948 preventing and punishing the crime of genocide, by the Geneva Convention of August 12, 1949 relating to protecting civil persons in wartime and the Additional Protocols, as well as in the Convention of November 26, 1968 on imprescriptibility of war crimes and crimes against humanity; b) or offences aimed at in the penal code which, according to the charges by the Public prosecution or the evidences for the prosecution or even what admits the defendant, were committed with the intention of perpetrating genocide or crimes against humanity', Art. 1 of Organic Law no. 08/96.
50. The ambiguity stems from the unfortunate juxtaposition of par. 1 and lit. b, which reads:'...acts qualified and punished by the penal code and which constitute ...offences aimed at in the penal code....'
51. 'It is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished', Judgment of the International Military Tribunal for the Trial German Major War Criminals: Nuremberg, 14 November 1945-1 October 1946, Vol. 1, available online at: http://www.yale.edu/lawweb/avalon/imt/proc/ judlawch.htm (visited 29 April 2005).
52. Which amounts to the same from a criminal perspective as far as genocide is concerned, since attempt and complicity are punishable as acts of genocide. See Art. 3 of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948.
53. The first was defined as follows under Organic Law no. 08/96, which had introduced these categories: A) persons whose criminal acts or whose acts of criminal participation place them among the planners, organizers, instigators, supervisors and leaders of the crime of genocide or of a crime against humanity; b) persons who acted in positions of authority at the national, prefectoral, communal, sector or cell level, or in a political party, or fostered such crimes; c) notorious murderers who by virtue of the zeal or excessive malice with which they committed atrocities, distinguished themselves in their areas of residence or where they passed; d) persons who committed acts of sexual torture. The post-war American tribunals had already used categories for trying Japanese criminals.
54. One can only wonder what constitutes 'unexcessive' malice.
55. UN High Commissioner for Refugees, Background Paper on the Human Rights Situation in Rwanda (Geneva, January 2000).
56. Economic and Social Council of the UN, Situation de droits de l'homme au Rwanda, Resolution of the Human Rights Commission (1999/20, 23 April 1999).
57. Human Rights Watch, Rwanda: De la recherche de la sécurité aux abus des droits de l'homme (New York, April 2000).
58. Council Common Position of 18 September 2000 on Rwanda, 2000/558/CFSP, Official Journal L236 (20 September 2000). See also, more recently, Council Common Position of 21 October 2002 on Rwanda and repealing Common Position 2001/799/CFSP, Official Journal L285 (23 October 2002), at 3. The Council 'welcomes the official launch of gacaca tribunals and encourages the Government of Rwanda to monitor the forthcoming procedures in close cooperation with national and international non-governmental organization;...encourages the Government of Rwanda and the Supreme Court to ensure that gacaca justice is administered in line with international human rights standards;...also encourages the gacaca courts to establish clemency in general as a basic working principle and to safeguard rights guaranteed by law both to the accused, particularly as regards defence and appeals, and to civil parties'.
59. See Art. 39 of Organic Law no. 16/2004.
60. See the theory of the appearance of justice developed by the European Court of Human Rights: 'juItice must not only be done: it must also be seen to be done'; among others, see Judgment of 28 June 1984, Campbell and Fell v. United Kingdom, available online at: http://www.echr.coe.int (homepage) (visited 29 April 2005).
61. Decree-Law no. 06/82 of 7 January 1982, relating to the status of judicial personnel (Journal Officiel, 15 April 1982), Art. 31(1).
62. On the establishment of the seats of gacaca courts, see Arts 5, 8, 14 and 15, 23, 34, 36, 37 of Organic Law no. 16/2004.
63. Art. 64(6) of Organic Law no. 16/2004.
64. C. Ntampaka, 'Le retour à la tradition dans le jugement du génocide rwandais: Le gacaca, justice participative', 48 Bulletin de l'Académie royale des sciences d'Outre-mer (2002) 419-455.
65. From the same author, 'Le gacaca rwandais, une justice répressive participative', 6 Actualité du droit international humanitaire. Les dossiers de la Revue de droit pénal et de criminologie (2001) 211-225.
66. F. Reyntjens, 'Het recht van het grasveld: Statelijk en niet-statelijk strafrecht in Rwanda', in Liber Amicorum Jules D'Haenens (Gand: Mys and Breesch, 1993), 269-275.
67. On the contrary, members of gacaca courts cannot sit in hearings or participate in decisions on cases concerning a family relative; see Art. 10 of Organic Law no. 16/2004.
68. Except for oaths of 'persons of integrity'; see Art. 9 of Organic Law no. 16/2004: '...So help me God.'
69. Only members of the coordination committee elected for each gacaca court need to be able to read and write kinyarwanda. See Art. 11 of Organic Law no. 16/2004.
70. Currently, gacaca courts can only sit in session if at least seven of its members are present. Previously, 15 members were needed.
71. See Human Rights Watch, Rwanda: De la Recherche de sécurité aux abuses des droits de l'homme (Camps de solidarité), available online at http://www.hrw.org/french/reports/rwfr/rwfr-14.htm (visited 29 April 2005).
72. See Art. 39(8) of Organic Law no. 16/2004.
73. For more details on its implementation until 2002, see Digneffe and Fierens, supra note 8, at 104-116.
74. See http://www.asf.be and http://www.penalreform.org (visited 29 April 2005).
75. The author does not yet have access to them.
76. On these factual elements, see press releases by Hirondelle in March 2005, available online at: http://www.hirondelle.org (visited 29 April 2005) and International Justice Tribune, no. 23, available online at: http://www.justicetribune.com (visited 29 April 2005).
77. See Ntampaka, supra note 58, at 424.
78. See P. Ricœur, Lectures 1: Autour du politique (Paris: Seuil, 1991) 176-195.
79. F. Nietzsche, Ainsi parlait Zarathoustra (Paris: Aubier-Flammarion [bilingual edition] 1969), at 221.
80. See, in particular, La Doctrine du droit (Rechtslehre): Die Metaphysik der Sitten (1797), ed. by W. Weischedel, Vol. VIII (Berlin: Suhrkamp, 1989), at 314 ff.
81. See P. Ricœur, Le Juste (Paris: Esprit, 1995) 193-208.
82. It is difficult to conceive of amnesties for a genocide. The Treaty of Lausanne of 1923 nevertheless granted amnesty for the 1915 genocide of Armenians.
83. One of the first and most famous examples is Art. 1 of the Edict of Nantes, signed by Henry IV in 1598 to end the wars of religion involving what would nowadays be viewed as genocide (the massacre of St. Bartholomew's Day, for example) or crimes against humanity: 'First, that the recollection of everything done by one party or the other between March, 1585, and our accession to the crown, and during all the preceding period of troubles, remain obliterated and forgotten, as if no such things had ever happened. It will not be opportune or allowed for our prosecutors or any other person, public or private, on any occasion at all, to invoke trials or prosecution before any court whatsoever', translated in J.H. Robinson, Readings in European History, 2 Vols (Boston: Ginn, 1906), at 180-183.
84. According to the Rwandan Office for Information (ORINFOR), Madame Domitille Mukantaganzwa, Executive Secretary to the National Service for Gacaca Courts is said to have stated on 30 March 2005: 'Gacaca is a more religious than political programme, as it aims at confession, pardon and reconciliation among Rwandans, available online at: http://www.orinfor.gov.rw/DOCS/Justice21.htm (visited 29 April 2005) (unofficial translation).