The 1994 Rwandan genocide has become the most heavily adjudicated conflict in recent world history. After the assassination of Rwanda’s president on April 6, 1994, a reactionary group of elites seeking to reassert their control over Rwandan society by appealing to the ethnic loyalties of the majority Hutu population, organized genocide of the country’s Tutsi minority. On orders from the central government, community leaders throughout Rwanda gathered Tutsi in churches, schools, and other public buildings with promises of protection, before local militia groups systematically slaughtered them. In the weeks after, death squads and roadblocks helped to hunt down survivors. In just 100 days, over 80 percent of Rwanda’s Tutsi population was killed.
After the July 1994 military victory of the Rwandan Patriotic Front (RPF), a largely Tutsi rebel army that had been attacking Rwanda since 1990, both the international community and the newly installed Rwandan government embraced trials as a primary tool for promoting post-conflict social reconstruction. The UN Security Council created the International Criminal Tribunal for Rwanda (ICTR) in late 1994, which focused on prosecuting the top organizers of the genocide, and the first trials took place in Arusha, Tanzania in 1997. The Rwandan government itself began to arrest thousands of individuals on genocide charges immediately after the RPF victory, and by 1999, Rwandan prisons held more than 120,000 genocide suspects. With the Rwandan judicial system in shambles, the government did not begin the first genocide trials until December 1996, and even working at full capacity, the courts would have taken over 100 years to complete prosecutions. Seeking to speed up the rate of prosecution and implicate the population more directly in the judicial process, the government launched a new system of non-professional grassroots justice in 2002, called gacaca courts, drawing loosely on a traditional Rwandan dispute resolution mechanism. Gacaca courts were organized in every locality in the country, using popularly-elected lay judges to treat most genocide crimes. By early 2010, over 1.5 million cases had been heard in gacaca courts, and the process was winding down to a close.
Transitional justice—the use of judicial mechanisms to help rebuild post-conflict and post-authoritarian societies—has emerged in the past two decades as a major international trend, promoted by the international community and widely studied by scholars. Along with the International Criminal Tribunal for the former Yugoslavia (ICTY), which has sparked a wave of human rights trials around the world, and the South African Truth and Reconciliation Commission, which has inspired numerous attempts to develop alternative judicial mechanisms, post-genocide justice in Rwanda has become a major focus of international interest and academic analysis. In the Rwandan case, given the shocking nature of the violence that took place in 1994, policymakers, diplomats, and human rights activists insisted that judicial accountability was essential. Trials of genocide perpetrators, they argued, would promote the rule of law, stop the cycle of violence, and allow survivors to move on with their lives. Scholars of transitional justice have been particularly intrigued by gacaca’s innovative attempt to adapt Western legal traditions to Rwandan culture, and many have predicted that gacaca could become a model for using local judicial mechanisms to promote reconciliation.
In practice, however, the benefits of trials in Rwanda remain unclear, while their negative consequences are substantial. In this essay, I draw on an extensive field research from a project conducted in Rwanda between 2001 and 2006 involving a national survey, hundreds of individual and focus group interviews, and ethnographic case studies of three local communities, to assess the impact of trials on social reconstruction. I first review Rwandan conceptions of justice and reconciliation, before looking at the various judicial initiatives that have been undertaken since 1994.
Based on my research, I argue that far from serving to resolve conflicts and promote reconciliation, as their advocates claimed, trials have allowed an authoritarian government to consolidate its power, created insecurity in the population, and heightened ethnic divisions. Although gacaca has held many genocide perpetrators accountable and promoted dialogue in some communities, the gacaca process has promoted neither the restorative nor traditional judicial principles its supporters claimed. Instead, gacaca has been a retributive and punitive process used to promote a repressive political agenda and to settle many personal vendettas.
Rwandan Conceptions of Justice
As indicated in hundreds of interviews with a wide range of Rwandans, the Rwandan understanding of justice—referred to by the Kinyarwanda word utabera—differs in substantial ways from standard Western conceptions of justice. While justice in the West is commonly understood to involve individual accountability and punishment for infractions of public law, utabera is understood in more collective terms. In Rwanda, crime is seen as disturbing the equilibrium of society, and the primary goal of judicial processes is to re-establish society’s balance rather than establishing accountability through the punishment of wrongdoers.
The concept of utabera was historically closely related to the Rwandan idea of reconciliation, ubwiyunge, which comes from the same root as the word for setting a bone. The concept of ubwiyunge traditionally referred to repairing damaged relationships within a family or between families, due to criminality, inappropriate or abusive behavior, or conflicts over property, and it took place neither at the individual nor national level but within local communities.
The process of achieving reconciliation commonly involved a public airing of grievances either before a chief or in a gathering of community elders, known as gacaca, or “small grass,” a reference to the lawn upon which the gathering would be held. In gacaca, each side in a dispute would have an opportunity to speak, and the chiefs or elders would then determine whether anyone had been wronged. If so, the elders decided what restitution should be made. Given the interest in restoring social equilibrium, restitution was the responsibility of the family, not individuals, with the gift of a cow by the offending family as a common requirement. At the conclusion of the gathering, all parties would share a calabash of banana beer, symbolizing the acceptance of the judgment and the restored unity of the community.
Current ideas about utabera reflect the historic notions of social repair symbolized by gacaca. The idea of a public gathering where all sides speak and the truth is revealed remains central. When asked to define justice, a large number of Rwandans gave some version of the statement, “Justice means telling the truth.” For genocide survivors, finding out the truth about what happened to their family members was particularly important, more important for many than seeing that perpetrators are punished. The idea that all parties are treated equally and have an opportunity to be heard also remains important. Many people defined justice as involving a fair hearing regardless of background. An admission of guilt and request for forgiveness, as happened in the gacaca process, is also important to contemporary Rwandan ideas about justice and reconciliation. Finally, restitution for victims of crime and abuse remains seminal to Rwandan ideas about justice, particularly among genocide survivors.
Post-Genocide Judicial Initiatives
The various trials undertaken inside and outside Rwanda since 1994 reflect Rwandan conceptions of justice in some ways, but they fall short in other key ways. When the RPF came to power, Rwanda’s judicial system was incapable of functioning, with courts and other facilities in ruins and the vast majority or judges, lawyers, and other judicial personnel either dead or in exile. Rwanda’s ability to seek accountability was further undermined by the fact that most of the key organizers of the genocide were outside Rwanda. The newly installed Rwandan government thus requested that the Security Council create an international tribunal along the lines of the recently created ICTY. The UN Secretary General sent a fact-finding team to Rwanda in August 1994 that found evidence of genocide, and in November 1994, the Security Council created the ICTR to prosecute Rwandans accused of “genocide and other serious violations of international humanitarian law” committed from January through December 1994. Despite having initially sought the tribunal’s creation, the Rwandan government, which at the time held a seat on the Security Council, cast the sole dissenting vote, objecting to the lack of the death penalty, the ICTR’s location outside Rwanda, and especially the ICTR’s primacy over Rwandan courts. The relationship between the ICTR and the Rwandan government has been tense ever since.
The ICTR was slow in getting off the ground and was initially plagued with major logistical challenges. At the start, the prosecution lacked a clear strategy, focusing its first investigations on whichever alleged perpetrators were in detention. With insufficient funds, limited equipment, and a randomly assembled and largely inexperienced staff, the quality of investigations was at first poor. Over time, however, the ICTR became much better organized and, with strong international support, they were able to obtain the arrests of most of the major genocide perpetrators, based on a prosecutorial strategy that focused on the symbolic prosecution of perpetrators from each region in Rwanda and from central, regional, and local governments, the military, the media, and religious communities. By early 2010, some 52 individuals had been judged in Arusha and another 26 had trials underway. The Tribunal is scheduled to complete its work by late 2010 but is likely to continue into at least 2011.
While the ICTR has made important contributions to the development of international law, its work has made only limited contributions to justice as understood by Rwandans. Our research indicated that the Rwandan population is not hostile to the ICTR (as the government has often claimed) but rather regards it as largely irrelevant. People told us that the ICTR was good for dealing with criminals outside Rwanda and for informing the international community about what happened, but they saw it as contributing little to the effort to establish the truth about what happened in Rwanda in 1994. The physical distance of the ICTR from Rwanda and the failure of the ICTR to aggressively publicize its activities in Rwanda have left most Rwandans almost completely ignorant of the ICTR’s work, undermining the ability of the tribunal to serve as a public forum like gacaca. Although a few survivors have served as witnesses, the nature of trial proceedings at the ICTR, based on the Western judicial model, does not allow the personal confrontation and resolution of grievances that is central to utabera. The ICTR involves no restitution for victims. Another serious concern has been the failure of the ICTR to bring any charges against the RPF, despite evidence that RPF troops killed tens of thousands of people both as they advanced across Rwanda and in the months immediately after taking power. The one-sided nature of prosecutions has given an impression that only one side has been heard and undermined the impression of fairness.
Trials in Rwandan national courts have experienced many of the same problems. The special genocide courts set up after extensive investment in physical infrastructure and training of personnel were, like other courts in Rwanda, based on the Western judicial model inherited from Belgian colonizers. Domestic genocide trials also lack meaningful confrontation between concerned parties and have no mechanisms for restitution. Held in courtrooms located in major cities, domestic genocide trials are less removed physically than the ICTR located in Tanzania, but they remain remote from the general public, which almost never observes proceedings and remains largely ignorant of their activities. Despite the government’s claim that ordinary courts are able to deal with RPF abuses during and after the war, in practice, almost no charges against RPF personnel have been heard, so that the one-sided nature of prosecutions and the appearance of a lack of equality prevails in the domestic justice system as well.
Gacaca: A Bold Experiment Gone Wrong
The gacaca courts created to deal with genocide crimes resemble historic gacaca in their lack of professional judicial personnel, their accessibility, and their popular participation, but the relationship of these courts to the historic gacaca process has still been overstated. Traditional gacaca was an informal process, organized by communities only when needed without direct connection to state authorities. The gacaca genocide courts, by contrast, were created by law to enforce codified laws. In elections in October 2001, every community in Rwanda chose 19 “individuals of high integrity” to serve as lay judges. With 10,652 gacaca jurisdictions in the country, over 250,000 people were chosen as gacaca judgers. Unlike historic gacaca, which involved only male community elders, the judges in gacaca genocide courts included women and young people as well. The first gacaca courts were launched in 2002 in two pilot phases. Then, the process was put on hiatus for two years before being inaugurated nation-wide in 2005. The official closure of the gacaca courts was the end of 2009, though a few courts continue to function.
The gacaca court process involved several steps. The process began in each locality with a public meeting in which the population developed a record of the crimes committed in their community during the genocide, including a list of those killed, then developed a list all those accused of participating in the crimes. Individuals, including those already imprisoned, were offered provisional release and reduced sentences if they would confess to crimes and implicate others. Trials of those accused of all but the most serious crimes were then held in the communities, with the population encouraged to talk openly about the events that occurred and the judges then rendering a verdict. Those accused of organizing the genocide, being particularly vicious, or participating in rape still faced trial in the national genocide courts.
While the government initially embraced the idea of adapting Rwanda’s historic gacaca process largely to speed up the prosecution and release of the country’s massive prison population, as the process was being implemented, advocates asserted that the gacaca courts represented an important innovation and would make major contributions to the social reconstruction of the country. They argued that, like the South African Truth and Reconciliation Commission, the gacaca courts would involve community meetings and the establishment of a transcript about what happened in each community. They would thus represent a form of restorative justice, resembling utabera, because it focuses on the needs of victims and on restoring community rather than merely punishing offenders. Because they would draw on Rwandan tradition, gacaca courts would be more effective and have a wider impact. By encouraging confrontation and conversation between victims and perpetrators, gacaca courts would allow communities to come to terms with the past, and would help survivors feel closure and allow them to move on with their lives.
In practice, for both structural and political reasons, gacaca courts did not live up to their potential to contribute to social reconstruction. For all of the talk about restorative justice, in reality gacaca courts administered retributive justice, with the power to sentence those found guilty to sentences as serious as life in prison. Organized by the government and applying codified law, gacaca courts resembled classical courts more than a truth commission. The more serious problems arose from the government’s political manipulation of the process. Although in theory gacaca courts were supposed to allow communities to discuss the violence of 1994 and develop a transcript of the past, the government made clear at the beginning of the process that only genocide crimes could be addressed. Government officials observing the process in various communities intervened quickly to quash any discussion of RPF crimes. The lists of the dead were to include only those killed in the genocide, which in practice encouraged communities to list only Tutsi, who were the clear target of the violence. Like the ICTR and national courts, gacaca courts thus provided one-sided justice. Many Hutu we interviewed regretted that they were not allowed to discuss their own losses and complained that gacaca was not a fair and equal process.
Politicization of gacaca grew more serious as the process developed. The gacaca process gradually became more coercive. In the first pilot phase, participation in gacaca hearings was optional, but after problems with attendance (in large part because of disappointment at the one-side nature of proceedings), the government made participation mandatory. When some of the courts acquitted a number of the accused, government officials began to suggest publicly that some of the gacaca judges were themselves guilty of genocide. A national campaign to find and arrest gacaca judges involved in the genocide had a chilling effect that discouraged courts from acquitting all but the most egregiously falsified cases. Gacaca became an opportunity for individuals to exact revenge on enemies or to blackmail people with the threat of accusation, so the cases quickly began to multiply.
Government officials also realized during the pilot phase that gacaca was an excellent means of intimidating and disenfranchising a large portion of the Hutu population. Officials in the Ministry of Justice and elsewhere began to speculate that there could be up to 2 million people tried in gacaca. In the end, 1.5 million cases were heard in gacaca courts, involving more than 1 million accused. Since there were fewer than 2 million adult Hutu men of an age sufficient to participate in the genocide in 1994, the implication of such widespread prosecution is that all Hutu are guilty of genocide. Thus, rather than individuating guilt, as advocates of transitional justice commonly argue trials after mass violence can do, the gacaca courts have actually implied collective guilt on all Hutu, suggesting that Hutu by their very nature are genocidal. Discussion with government officials has made clear that merely having been present when a Tutsi was killed counts as guilt, even if an individual was coerced into standing at a barricade and contributed nothing to the killing. Genocide charges and prosecutions in gacaca courts have been used effectively to intimidate and eliminate government critics, journalists, human rights activists, and opposition politicians.
In the initial proposal, those who confessed participation in the genocide were to spend part of their sentence living in their communities, doing public work. This was expected to represent a form of restitution, since it would include providing services to genocide survivors such as rebuilding their homes. In the end, however, the government implemented a more punitive form of public work. Many of those who confessed were sent to work at camps outside Kigali, where they provided labor for the city, such as repairing roads and maintaining city gardens. Not only did this fail to provide reparations to victims, but it also contributed to an impression that government officials were using the process for their own benefit.
Conclusion
If regaining social equilibrium is the central idea of the Rwandan conception of utabera, then all of the judicial processes implemented in response to the 1994 Rwandan violence—including gacaca—have mostly failed. While genocide crimes are particularly serious and must be addressed, the complete absence of accountability for crimes committed by the RPF—which may have left as many as 200,000 Rwandans dead in Rwanda and the Democratic Republic of Congo—undermines the potential impact of trials to promote reconciliation. The one-sided nature of all of the trials has contributed to the impression that the government is merely seeking to establish its dominance and exercise power rather than promoting justice. By limiting their focus, the trials fail to present the type of public truth about the past that could become a basis for social reconstruction. Since in practice even the most egregious offenses committed by Tutsi against Hutu have gone unpunished while even the most minor offenses committed by Hutu against Tutsi have been prosecuted, trials have heightened ethnic awareness and ethnic tensions. The excessive number of gacaca prosecutions and the politicization of gacaca courts have sown fear in the population. The absence of restitution means that the survivors have been denied an element key to Rwandan conceptions of justice.
The ultimate lesson of the trials’ failure to provide justice in Rwanda is that post-conflict justice does not happen in a political vacuum but is shaped by ongoing political concerns. The tragedy of the experiment with gacaca courts is that if they had been allowed to function freely and discuss crimes and loss on all sides, they might have contributed to real healing in Rwanda. Instead, the gacaca courts have been a tool of fear and control for an authoritarian regime under the guise of seeking justice.