Yesterday’s and today’s genocides and crimes against humanity: what should we do tomorrow?
"Gacaca" (pronounced Gatshasha) literally means "grass" in Kinyarwanda, one of Rwanda’s official languages. But rest assured, the Globe Lawyer is not going to discuss gardening.
The Globe Lawyer wants to highlight a national judicial initiative proposed as a response to genocide. The globe lawyer takes you to an African region that has chosen an original reaction in order to turn the page on the darkest part of its history: Rwanda!
It is necessary to understand the historical background: n 1994, the country when through a genocide in which a million people died, leaving the population traumatized and decimated, infrastructures were destroyed. Since then, Rwanda has embarked on a process of justice and reconciliation for all Rwandans.
After this was put in place in 19 July 1994, the national unity government recognized that the Rwandan genocide took place.
The conventional judicial system rebuilt on the ruins of four years of civil war was not up to the task: In 1998, only 1,274 judgments were settled while there were still more than 120,000 perpetrators to judge.
The particularity of the Rwandan genocide is the fact that the executioners were almost as numerous as the victims: it was planned at the center of the military and political hierarchy; this genocide was able to take place due to substantial civilian population participation.
The challenge was sizeable. How could justice take place on a national level while trying to establish a lasting peace?
The judicial system functioned on three levels: the International Criminal Tribunal for Rwanda (ICTR), the National Rwandan Courts and the Gacaca courts.
The UN Security Council established in 8 November 1994 an international criminal tribunal for Rwanda to prosecute persons responsible for acts of genocide or crimes against humanity in Rwanda (ICTR).
At the same time other systems were created such as the Organic Law of 30 August 1996. This law concerns the organization of criminal prosecutions regarding offenses committed after 1 October 1990 involving crimes of genocide or crimes against humanity. Specialized chambers were used within the primary courts and military courts with exclusive jurisdiction for these hearings.
Under article 8 of the ICTR statute, the latter and the national courts were simultaneously competent. But only the ICTR had the primacy over all of the state’s national laws. This is why the ICTR prosecuted in priority the leaders most responsible for planning those crimes. As for the perpetrators of massacres and atrocities, namely rapes, they were prosecuted nationally.
Eventually, in 1998 the President of the Republic suggested that meetings should take place about that issue, with both administrative authorities and political institutions involved. The 2001 organic law establishes “Gacaca” courts, i.e. traditional courts which so far were used to settle local quarrelsome problems (often on the grass, hence the name). They exercise extensive powers, similar to those of the ordinary criminal courts.
This new kind of participatory justice had the advantage to put an end to impunity, while allowing national reconciliation. Finally, the law of the 20th of May 1963 was acknowledged as the seed of the 1994 genocide; that law granted amnesty to all of the perpetrators of the crimes committed in 1959, and presented the massacres against the Tutsis as a major event in the fight for the independence of the country.
The gacaca have multiple impacts: they enable the truth to come out about what really occurred, they accelerate trials, they help the population to be involved in the administration of justice, they enable the perpetrators to confess their crimes and to ask the community for forgiveness, and they enable to judge a great number of people at relatively low cost.
However, the gacaca resulting from the 2001 law are very different from the initial ones, not only regarding the subject matter (the seriousness of the crimes) but also regarding the modern form of the legal proceedings.
The difference lies in several features of the procedures. Indeed, during the pre-trial phase, they can act just as any other “normal” jurisdiction: they subpoena, search, take protective measures, and demand preventive detention. At the trial stage, they can acquit or sentence, and determine the level of damages that should be granted to the victims. And while the civil party is established, the negotiations of confession in return for the reduction of the sentence (largely based on the Anglo-Saxon system) differs from the Continental Law, from which the Rwandan law is derived.
Moreover, the gacaca are not without critics. Despite their position of criminal jurisdiction, they did not draw the legal consequences: a fair trial guarantee is not yet assured. Indeed, the gacaca combined the responsibility of the investigation and of the trial proceedings, and neither the right to assistance from a lawyer nor the right to remain silent was granted. The same applies to the people who serve as “judges” in the gacaca: they were not professionals but “honest Rwandans” (inyangamugayo), elected locally by the community.
Over 12.000 community courts judged almost 2 million people across the country. The conviction rate was of around 65%.
During almost a decade, hearings were held almost every week. The gacaca officially closed their doors on the 18th of June 2012. As for the ICTR, it should stop its activities by the end of the year 2015.
Even though some people think that the gacaca were created on the basis of political expediency, this modern form of a traditional model enabled a cathartic effect which founded a new national unity, by respecting the cultural specificity of the Rwanda and by preferring the geographic proximity with its population. The future will tell us about its level of efficiency.