African human rights law journal

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27 F Reyntjens The great African war: Congo and regional geopolitics, 1996-2006

(2009) 24.

28 As above.

29 As above.

30 Prunier (n 26 above) 42.

31 Prunier 46.

about by the genocide and the feeling of guilt they instilled among the country’s Hutu population in the context of an increasingly police state were key in not only quelling any militant fervour among Hutu politicians, but also in aligning the civil society movement and the general public to the imperatives of the new power wielders. This new reality had significant implications on all aspects of the evolution of post-genocide Rwanda, including in the areas of justice and human rights.

3.3 Implications for justice and human rights
The Rwandan crisis posed a daunting challenge to any idea of pursuing justice as well as protecting and promoting human rights in its aftermath. As a collective action, the genocide defied the very essence of the feasibility of ‘modern’ justice while raising the question of the possibility of a human rights-based regime amid inter- community polarisation. This was mainly due to the very scale of the violence. Firstly, the violence killed around one million people, the majority of whom were targeted simply because of their ‘ethnic’ identity. Secondly, although it was instigated by the elite and co- ordinated by middle-level party and government officials, the

genocide was actually executed by ordinary community members.32

Four processes are worth analysing in so far as the pursuit of justice and reconciliation as well as the protection and promotion of human rights in post-genocide Rwanda are concerned, namely, the International Criminal Tribunal for Rwanda (ICTR); the national judicial process; the Gacaca courts; as well as the National Unity and Reconciliation Commission (NURC). From the onset it ought to be noted that the design of these processes was largely influenced by the

mode of conflict termination in the country. As Brown argues:33
Given the RPF’s victory on the battlefield and its virtual monopoly of political power, unchallenged in any significant way by local civil society and legitimated and reinforced by international donors, Rwanda’s efforts in the area of justice and the rule of law closely reflect the ruling party’s interests.
The ICTR was established by the UN Security Council through Resolution 955, adopted on 8 November 1994. Its purpose was to prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other

32 Strauss estimates the total number of perpetrators of genocide in Rwanda to be

‘between 175 000 and 210 000’. He defines a perpetrator as ‘someone who

participated in an attack that killed another person, even if the individual did not

himself kill’. See S Strauss ‘Rwandas security trap and participation in the 1994

genocide in JP Chrétien & R Banégas (eds) The recurring Great Lakes crisis: Identity,

violence and power (2008) 174.

33 S Brown ‘The rule of law and the hidden politics of transitional justice in Rwanda’ in CL Sriram et al (eds) Peacebuilding and the rule of law in Africa: Just peace? (2011) 179.

such violations committed in the territory of neighbouring states, between 1 January and 31 December 1994.34
Overall, the ICTR has been reasonably effective in holding key perpetrators accountable for their crimes. Its retributive functions can be said to have thus contributed to the rule of law, albeit on a very limited scale, since it is only mandated to try a relatively small set of perpetrators of the worst atrocities under the international law. [I]t also discredited Hutu … extremists and obstructed their efforts to reorganize abroad, as well as dissuaded Tutsi reprisals. The tribunal ... could potentially also have a deterrent effect, albeit a modest one, against future crimes on a massive

However, despite its achievements, the ICTR has received several criticisms. ‘Located in Arusha, Tanzania, the tribunal has been both physically and psychologically distant from the people of Rwanda.’36

Equally, the speed of trials has been alarmingly low.37 In fact,

between January 1997 and May 2012, the ICTR has only completed

62 trials, with 54 convictions and eight acquittals.38 In the meantime,

the cost of operations has nonetheless been very high. In its first

decade (January 1997 to April 2007), the ICTR spent about US$1

billion in 33 prosecutions, an average of about $30 million per completed case.39 Rapports between the tribunal and the Rwandan government have been fraught with tension, especially with regard to

witnesses’ protection. The ICTR views this protection as the responsibility of Rwandan authorities while the latter have repeatedly complained of not being kept informed of witnesses’ movements between Rwanda and Arusha. Furthermore, ‘[t]he impact of the ICTR on reconciliation (an explicit objective of the tribunal) and broader

peace building has been minimal’.40 This perception is fuelled by the

fact that not only all those prosecuted thus far before the tribunal

have been Hutu, but also the Rwandan government has clearly

opposed any attempt by the tribunal to investigate RPF’s soldiers for

their role in the conflict. Further criticisms have included ‘a lack of

qualified and competent personnel from the very beginning [and] allegations of mismanagement of funds and inefficiency’.41 Lastly, some have gone as far as questioning the very relevance of the ICTR.

According to Rwandan President Paul Kagame, the ICTR was

‘established by the UN against the wishes of the Rwandan

34 Brown (n 33 above) 183.

35 Brown (n 33 above) 183-184.

36 Brown (n 33 above) 183.

37 SF Musungu & L Louw ‘The pursuit of justice in post-genocide Rwanda: An evaluation of the international and domestic legal responses’ (2001) 2 East African Journal of Peace and Human Rights 203.

38 British Broadcasting Corporation ‘Rwanda “Gacaca” genocide courts finish work’ (accessed 18 June 2012).

39 Brown (n 33 above) 183.

40 Brown (n 33 above) 184.

41 NA Jones The courts of genocide: Politics and the rule of law in Rwanda and Arusha

(2010) 184.

government’.42 In this context, the international community’s rush in establishing the ICTR is viewed as a face-saving scheme for its blatant failure to prevent or stop the genocide. According to Uvin and Mironko, the ICTR plays ‘above all a symbolic role, a concrete

demonstration of the international community’s moral concern.43

At the national level, the Organic Law on the Organisation of Prosecutions for Offences Constituting the Crime of Genocide or Crimes against Humanity, enacted on 1 September 1996, provides for Rwandan national courts to prosecute individuals accused of crimes of genocide or crimes against humanity committed between 1 October

1990 and 31 December 1994. But the problem with the national

justice system was that it faced serious infrastructure and logistical

problems due to mismanagement under the previous regimes as well

as a major personnel shortage as a direct consequence of the

genocide. The majority of its personnel were either killed or had

chosen exile because of their involvement in the genocide and/or fear of reprisals.44 Yet, the system was able to process as many as 10 000 cases between 1997 and 2004.45

However, just like the international mechanism, the national justice system has also had its critics. It lacked capacity, especially in its early stages, while the quality of justice it serves has been described as

‘poor due to inadequate defence representation, lack of resources, and especially political interference’.46 A report released by Human Rights Watch in July 2008 found that the Rwandan judiciary was

‘largely subordinate to the executive branch and even to elite unofficial actors who enjoy both economic and partisan political power’.47 Furthermore, in spite of continuous efforts, the national

judicial system remained, over a decade after the genocide, compounded by the large number of suspects awaiting trial and overcrowding in prisons this leads to. As of 2006, Brown writes:48

A dozen years after the genocide, about 80,000 Rwandans were incarcerated without having been convicted of any crime, still awaiting a verdict or in most cases for their cases to be heard – a clear violation of their right to a speedy trial. Conditions in highly overcrowded Rwandan prisons constitute in themselves a human rights violation.
If anything, the virtual impossibility on the part of government to process all genocide suspects through the national judicial system led to the establishment of Gacaca courts in 2001 ‘to achieve truth,

42 P Kagame ‘Preface’ in P Clark & ZD Kaufman (eds) After genocide: Transitional justice, post-conflict reconstruction and reconciliation in Rwanda and beyond (2008) xxv.

43 Cited by Brown (n 33 above) 184.

44 Musungu & Louw (n 37 above) 205.

45 Brown (n 33 above) 185.

46 L Wardof cited by Brown (n 33 above) 184.

47 Cited by Brown (n 33 above) 184.

48 Brown (n 33 above) 185.

justice and reconciliation among Rwandans’.49 After a trial period between 2002 and 2004, the Gacaca courts were in 2005 launched countrywide. According to Rwandan President Paul Kagame, Gacaca

jurisdictions constitute a50
revived and reformed traditional conflict resolution system that involves the population intimately in the prosecution of genocide suspects. All Rwandans own Gacaca, a system which allows those accused of lesser crimes to face their accusers, and permits in turn their communities to participate in deciding whether to acquit or punish those charged with genocide crimes.

However, although51

often portrayed as ‘traditional’ community-based justice, contemporary gacaca mechanisms differ fundamentally from the traditional form, which did not, for instance, habitually deal with serious cases such as murder, and emphasised collective restitution over punishment.

According to Waldorf, although52

few of the ‘customary’ features remain … [the Gacaca system constitutes] an official state institution intimately linked to the state apparatus of prosecutions and incarceration, and applying codified, rather than

‘customary’ law.
Hence the Gacaca courts are administered through the national

Ministry of Justice.

There can be no doubt as to the contribution of Gacaca courts in clearing the backlog of genocide cases, delivering both retributive and restorative justice, facilitating processes of truth telling and truth hearing as well as initiating processes of healing, forgiveness and

reconciliation and thus providing for positive peace in Rwanda.53


the lack of representation for the accused violates international standards and the provisions of the Charter of the African Union and the Rwanda Constitution, which [are] antithetical to the concept of the rule of law.
Lastly, the transitional government of Rwanda established the National Unity and Reconciliation Commission (NURC) in March 1999 in an effort to rebuild a sense of national cohesion among all Rwandans. The NURC was conceived to prepare and co-ordinate national programmes for the promotion of national unity and reconciliation, educate the population on issues relating to national unity and reconciliation, conduct research and disseminate publications relating to peace, national unity and reconciliation as well

49 British Broadcasting Corporation (n 38 above).

50 Kagame (n 42 above) xxv.

51 Brown (n 33 above) 185.

52 Cited by Brown (n 33 above) 185.

53 P Clark The Gacaca courts, post-genocide justice and reconciliation in Rwanda: Justice without lawyers (2010) 342.

54 Brown (n 33 above) 186.

as serve as a vanguard in denouncing and fighting acts, writings and utterances intended to promote discrimination, intolerance and xenophobia.55 The NURC’s activities have encompassed the

organisation of meetings, workshops, conferences and national summits targeting different segments of the population and whose major themes specifically address civic education, conflict resolution and support to community initiatives aiming to achieve unity and

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