Using Community Courts in Rwanda to bring Genocidaires to Justice

February 22, 2006

by Nicholas Alexiou, Editor-at-Large
Eleven years ago, Rwanda was plunged into darkness when civil war descended on the Central African nation. In the span of one hundred days during the summer of 1994, ethnic Hutus (the dispossessed majority) slaughtered approximately 800,000 Tutsis (the wealthy minority) and uncooperative Hutus in a brutal campaign of ethnic cleansing. As author Philip Gouveritch noted, the term genocide is almost too tame to describe the horror than reigned during these many morbid months. A more appropriate term would be decimation, for more than one out of every ten people in this central African nation was massacred (this would be roughly equivalent to the deaths of 30,000,000 Americans). Not since World War II had the world been witness to scale of horror that was inflicted on this tiny country that is no bigger than the state of Maryland. The effects of this brutality did not halt at the Rwandan border, nor were they limited to the summer of 1994. Geopolitically, the effects of the decimation were staggering. Fearing reprisals from the new Tutsi government (constituted by members of the Tutsi led Rwandan Patriotic Front which forcefully ended the Hutu genocide), ethnic Hutus fled Rwanda, with many settling across the border in the country now known as the Democratic Republic of Congo. This influx of refugees helped spark what has become known as "Africa's Great War," a conflict, which has claimed over three million lives. Nor were the effects limited to the geopolitical realm. Indeed, the fallout from this unspeakable tragedy has and continues to have an effect on the Rwandan legal system, and the legal questions that have arisen in the past decade will likely have a substantial impact across the sub-Saharan region and possibly the world. As is the case in most instances of prolonged civil war, there was hardly a piece of the Rwandan landscape that went untouched during the genocide. This included large portions of the country's infrastructure, including the much (if not all) of the judicial infrastructure. The problem of meting out justice with a shattered judicial infrastructure might not have been as dire were there but a few perpetrators of the genocide who needed to be brought to justice. Unfortunately, in Rwanda this was not the case. During the summer of 1994, many Rwandans were faced with a dire choice. Either become a victim of the genocide or join the roving bands of killers who were crisscrossing the countryside. When fighting finally ceased and the streets were no longer rivers of blood, the reconciliation process began. There was (and still is to this day) no greater obstacle on the road to reconciliation than prescribing justice to the over one hundred thousand alleged perpetrators.

The justice system that evolved consisted of three distinct pieces. A select group viewed as the leaders of the genocide were placed under the jurisdiction of the newly formed International Criminal Tribunal for Rwanda in Arusha, Tanzania. This deliberative body would likely be seen as the idea method from bringing all Rwandan genocidaires to justice. However, as of May 2005 the ICTR had only handed down twenty-five judgments at a cost of well over half a billion dollars. In addition to this slow and expensive pace, recent rulings have set some who were accused of being at the highest levels of the genocide go free. While these rulings are a vindication for some who fear that a form of "victors' justice" is being imposed by the ICTR, there are worries as to whether these rulings will agitate Rwandans who are assured of the defendant's guilt. The second avenue for judicial remedies being explored is that of the standard Rwandan courts system. While in tatters at the end of the war, the past decade has given the courts a chance to rebuild and proceed in its normal activities as an integral part of Rwandan society. The judicial system should be lauded for the progress that it has made in recent years. By the end of 2001 over 7000 accused genocidaires had been tried in Rwandan courts, a figure that seems impressive until realizing that when the fighting ceased in 1994, some 120,000 Rwandans were accused of murder and shoved into the overcrowded penal system. At that rate it would take the Rwandan court system some two centuries to adjudicate all pending genocide cases. Knowing that bold steps had to be taken, Rwandan President Paul Kagame introduced an innovative judicial concept, which took a traditional look at a modern problem. Author and journalist Helena Cobban describes a process known as gacaca, which in Kinyarwandan means "the lawn:"

...basically, if I say that you never repaid a loan to me and we start fighting, and people in our village say, "Enough already, deal with it," then they all sit around on the lawn. That's gacaca -- it means "a lawn." I say what I accuse you of, and you give your defense, or whatever, and then everybody votes on it together, and then we all get to drink banana beer together. It's a community participation thing for resolving small-level conflicts.

As Cobban notes, this unorthodox (at least by Western standards) method of conflict resolution has historically been used to settle minor incidents (as one scholar noted "...the theft of cattle, or domestic disputes between husband and wife") and as any observer could note, there is nothing minor about genocide. Yet faced with staggering court clog, the Rwandan government decided to resurrect this system of dispute resolution to try and bring some semblance of justice and closure to the events of 1994. However, process of creating and convening these gacaca courts was far from a simple task. A multi-tiered system was developed to determine which defendants would have their "day in court" in the gacaca system. Only those defendants accused of "category one" crimes (which included the crimes of genocide and rape) would be exempt from the new tribunal, those accused of lesser crimes during the genocide period would be eligible for the new gacaca system. The gacaca system itself is divided into four different "courts" (in order from decreasing to increasing authority): cell, sector, district, and province. To even a knowledgeable observer this multi-tiered system resembles a MBA flowchart gone awry. The sheer of gacaca tribunals created throughout this tiny nation is staggering. Over 10,000 have been created and yet by the end of 2005 only 118 had commenced the trial phase. Yet, despite the numerous obstacles, this unique system was able to judge over 4,000 accused genocidaries in 2005 alone. While these numbers are impressive, some outside observers question whether any semblance of justice is being served by the gacaca system. Critics point out that under this new method of "jurisprudence", some punishments are less severe than that which would be meted out under the current Rwandan criminal code. This feeds fears that this extra-judicial system will foster feelings of resentment rather than reconciliation in the minds of the survivors. Conflicts have arisen in some tribunals, forcing them to be shut down. Thus slowing what has already been for both the accused and the accusers a painfully slow process of arriving at "justice." The brutality that descended upon this tiny African nation over a decade ago are (in terms of veracity and velocity) unmatched in modern history. For any hope of reconciliation, the perpetrators of this violence had to be brought to some form of justice. And yet with more suspects than even the most advanced legal system could process in multiple lifetimes, Rwanda decided to borrow from in an attempt to take the next step toward the future. Whether or not the gacaca system will be "successful" is a question that will likely not be settled for years, if not decades. Until then the entire world watches as a new legal system attempts to conquer the darkest reaches of humanity.