The Tension Between Justice and Reconciliation in Rwanda Politics, Human Rights, Due Process...

The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due
Process and the Role of the Gacaca Courts in Dealing with the Genocide
Author(s): Jeremy Sarkin
Source: Journal of African Law, Vol. 45, No. 2 (2001), pp. 143-172
Published by: Cambridge University Press on behalf of the School of Oriental and African
Studies
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Journal of AfricanLaw, 45, 2 (2001), 143-172 ? School of Oriental and African
Studies. Printed in the United Kingdom.
THE TENSION BETWEEN JUSTICE AND

RECONCILIATION IN RWANDA: POLITICS,
HUMAN RIGHTS, DUE PROCESS AND THE ROLE
OF THE GACACA COURTS IN DEALING WITH
THE GENOCIDE1
JEREMY SARKIN*
INTRODUCTION
How a society deals with its past has a major determining influence on whether
that society will achieve long-term peace and stability. The critical question for
such a state is whether or not to prosecute and punish those responsible for past
gross human rights abuses. The objectives of policies to deal with past human
rights abuses are often to prevent future human rights abuses and to repair the
damage that has been caused. The need of victims and the society as a whole
to heal from the wounds inflicted upon them by the former regime often has to
be balanced against the political reality in which the new government may have
limited political power, and in which it may have inherited a fragile state. A
new state has to be founded on a commitment to human rights and a dedication
to the rule of law. Often, however, the aims of achieving national reconciliation,
building unity, reconstructing the institutions necessary for stable political and
economic systems, and obtaining the resources necessary to fund the transition
are in conflict with dealing with the past. Criminal trials are one way in which
the facts of past abuses may be established. The establishment of a truth
commission is another. However, either strategy in isolation can have dire
consequences.
These are important issues2 to consider in the context of Rwanda where
possibly a million people died in the genocide of 1994. Many others have been
killed subsequently, largely because the tragedy remains unresolved in terms of
truth, justice and reconciliation. A critical issue facing Rwanda is the present state
of the criminal justice system. Around 120,000 people accused of participating in
* Law Faculty, Universityof the Western Cape, South Africa.

1
Paper delivered at the Cape Town Holocaust Centre and the Institute for Justice and Re-
conciliation Conference-Genocide and the Rwandan Experience: A South African-Rwandan
Dialogue, Cape Town, February2001.
2 See furtherJ. Sarkin, "The Trials and Tribulationsof South Africa'sTruth and Reconciliation
Commission", (1996) 12 SouthAfricanJournalon HumanRights617; J. Sarkin, "The Truth and
ReconciliationCommission in South Africa",(1997) Commonwealth Law Bulletin528; J. Sarkin, "The
Development of a Human Rights Culture in South Africa",(1998) 20(3) HumanRightsQuarterly 628;
J. Sarkin, "The Necessity and Challenges of Establishinga Truth and Reconciliation Commission
in Rwanda", (1999) 21(3) HumanRightsQuarterly 767; J. Sarkin, "Preconditionsand Processes for
Establishinga Truth and Reconciliation Commission in Rwanda: The Possible Interim Role of
Gacaca Community Courts", (1999) Law Democracy and Development223; J. Sarkin, "Transitional
Justice and the ProsecutionModel: The Experienceof Ethiopia",(1999) LawDemocracy andDevelopment
253; J. Sarkin, "PromotingJustice, Truth and Reconciliation in Transitional Societies: Evaluating
Rwanda'sApproach in the New Millenniumof Using Community-BasedGacaca Tribunalsto Deal
LawForum112;J. Sarkin, "Dealing With Past Human Rights
with the Past", (2000) 2(2) International
Abuses and PromotingReconciliationin a FutureDemocratic Burma",(December 2000) LegalIssues
onBurma1.
144 Gacaca Courtsin Rwanda [2001] J.A.L.
the genocide are in detention.3 Some of them have been detained for up to
seven years without trial in violation of international law.4 Very few trials have
taken place and Rwanda's legal system does not seem to have the capacity to
meet the need. One possibility being investigated is the involvement of local
communities in the justice system.
This article examines the situation in Rwanda since the genocide of 1994. It
examines the political situation in the context of the country's human rights
record. This is critical as there are many different attitudes towards the
government's decision to follow the path of bringing perpetrators to justice at
the expense of other ideals. Relatively few genocide trials have taken place. The
proposed new gacaca courts are examined to determine whether the benefits of
using these traditional courts to deal with genocide cases outweigh the potential
problems. The legislation giving these courts powers to deal with genocide cases
has problematic provisions from a substantive and a procedural point of view.
So many years have elapsed since the genocide of 1994 that the authorities
cannot, and should not, seek to prosecute all those accused of participating in
the slaughter. Perhaps only the architects and main organizers ought to be
prosecuted. If prosecutions are seen as the panacea for Rwanda's ills, then that
country's problems are far from over and may in fact be exacerbated in the
future. In conclusion, various suggestions are made for moving Rwanda positively
forward to meet these challenges.
DEALING WITH THE PAST
Dealing with past injustices is a crucial test for a new democratic order. Facing
the tension between justice and peace, the transitional process entails tremendous
challenges.5 Countries in such a situation have to resolve similar problems: should
they punish human rights violations committed under the old order? Is an
amnesty permissible and necessary in the interest of peace, reconciliation and
unity? Does a society need an official account and acknowledgement of the
wrongs of the past? Must the public sector be purged of supporters of the old
regime? How can the victims of human rights violations be assisted in some way
and have their dignity restored? To what extent should unjustly expropriated
property be restored? Knowing about the abuses of the past6 and acknowledging
them seems to be the crucial issue in a transitional process.7 Ignoring history
leads to collective amnesia, which is not only unhealthy for the body politic, but
is essentially an illusion-an unresolved past will inevitably return to haunt the
citizens.8 The establishment of a full official account of the past is increasingly
seen as an important element of a successful transition to democracy. New
3 R.
Holloway, "RwandaUsing TraditionalJustice to Clear Huge Backlog of Prisoners",Agence
France-Presse,3 November, 2000.
4 Amnesty International,Rwanda:The Troubled Course ofJustice, Report AFR 47/10/00, April
2000.
5 R. Siegel, "TransitionalJustice:A Decade of Debate and Experience",(1998) 20(2) HumanRights
Quarterly 433.
6
J. Sarkin, "The South AfricanConstitutionas Memory and Promise"in C. Villa-Vicencio (ed.),
Transcending a Century Cape Town, 2000, 72.
of Injustice,
7 See for andForgiveness:
example M. Minow, BetweenVengeance FacingHistoryafterGenocide
andMass
Violence,Cambridge, 1998.
8 J. Sarkin,"The Necessityand Challengesof Establishinga Truth and ReconciliationCommission
in Rwanda", (1999) 21(3) HumanRightsQuarterly 767.
Vol. 45, No. 2 Gacaca Courtsin Rwanda 145
democracies have various options in dealing with these issues.9 They make their
choices according to the contexts of their transitions, taking into account the
seriousness of the crimes committed and the resources available to deal with
these issues.
How DEMOCRACYCOMES TO BE ESTABLISHED
There are three broad types of political transition from an authoritarian

regime to a democratic one:'l reform, compromise and overthrow."
When reform is undertaken,12 the old government plays a critical role in the
shift to democracy as, initially at least, the opposition is weak and the old
government determines the type and pace of change. Sometimes a group within
the authoritarian regime steps forward and leads a movement towards ending
the old order and establishing democracy. In this scenario, the old forces still
retain control at some level even though they have allowed a democratic
government to come to power. This unequal distribution of power is a significant
obstacle to exacting transitional justice, and the new government's power to
implement the human rights policy of its choice is limited. Because such a
transformation may have occurred from within the authoritarian regime, there
may be a feeling among some that democracy is at the whim of the former
regime. Since these former leaders retain a lot of power, they have the ability,
to a greater or lesser extent, to dictate what happens in the transitional process.
An example of this is Chile where General Pinochet was able to enact legislation
during his tenure to ensure that he would not be prosecuted for human rights
abuses after a civilian government came to power. Additionally, the military
retained a great deal of power even after the handover of power to the civilian
government. There was, therefore, always the fear of another coup d'etat if the
military was provoked. As a result, nothing was done to deal with the gross
human rights violations allegedly perpetrated by Pinochet for two decades. Only
now, as a result of the process in Spain and the United Kingdom, the state in
Chile is feeling secure enough to bring Pinochet to book. Where the reform
model of change applies, an amnesty is likely, few prosecutions if any are likely
to occur, and the past will largely be ignored.
In countries where change is the result of compromise,'3 the existing regime
and opposing forces are equally matched and cannot make the transition to
democracy without each other.'4 Such was the case in South Africa. This model
therefore entails democratization by the combined actions of the former regime
and the opposition forces. In compromising itself out of power, the authoritarian
regime will generally negotiate protection for itself in terms of amnesties or
9 See further Carter Center of

Emory University. 1992. InvestigatingAbuses and Introducing
Safeguardsin the DemocratizationProcess.Conferenceconvened 6-7 July, 1992. Conference Report
Series 61.
10 See
generally G. O'Donnell, P. Guillermo,C. Phillipe, and C. Schmitter (eds.), Transitionsfrom
AuthoritarianRule:Tentative AboutUncertain
Conclusions Democracies,Baltimore, 1987; G. O'Donnell, C.
Authoritarian
Philippe, and L. Whitehead (eds.), Transitionsfrom Rule:Prospectsfor
Democracy, Baltimore,
1986.
11 N. Kritz How DemocraciesReckon withFormer
(ed.), Transitional
Justice: Emerging Regimes,Washington,
D.C., 1995.
12 As in Chile, Hungary and Spain.
13 As in El Salvador,Namibia,
Nicaragua, Uruguay and Zimbabwe.
14 See S. Huntington, "The Third Wave: Democratizationin the Late Twentieth Century"in N.
Kritz (ed.), above, n. 11, at 69.
extract a promise by the new government not to investigate or prosecute

certain past crimes. Therefore, the human rights policies adopted by successor
governments in such a situation generally involve institutional measures aimed
at deterring future human rights abuses15rather than investigating and punishing
past abuses.'6 The critical determinant is the level of power retained by the old
order.17 If the forces of the old order are strong enough, they may simply wait
for the new government to make a mistake or push its power too far (especially
when it comes to seeking prosecutions). Former leaders may be able to state
outright that they will not tolerate being held accountable for human rights
abuses committed during their reign. If this happens, the new government will
have to make a choice between dealing with the past or succumbing to the
pressure exerted by the former regime to deal only cosmetically with the human
rights abuses of the past. If it does not deal with the past, its legitimacy could
be undermined. If it takes on the challenge of forcing the former regime to
account for the past, it runs the risk of becoming susceptible to overthrow.
Rwanda is an example of the overthrow model. Being overthrown18 is the
fate of a regime that has refused to reform: opposition forces become stronger
and finally topple the old order. In the "overthrow" model, the dominant forces
are staunchly opposed to reform and over time the opposition gains significant
political strength while the authoritarian regime loses strength. Democratization
occurs after the authoritarian government collapses or is overthrown and the
opposition comes to power. Under these circumstances, the former regime has
lost not only power but legitimacy as well. Consequently, the transitional
government comes to power with no significant political constraints inhibiting
implementation of a legitimate human rights policy. In such a case, the new
government has the widest discretion to decide how it should deal with the past,
including unfettered power to bring the perpetrators of human rights abuses to
justice. The choice that Rwanda has made to deal with the past is
justice-prosecuting those accused of involvement in the genocide is the focal
point of government policy. The government believes that there is very little
reason not to pursue this option, as it perceives few constraints on this course
of action. However, as will be shown below, there are vital reasons why choosing
one model-justice in this case-to the exclusion of the principles of truth and
reconciliation will have dire consequences in the long term.
TRUTH, JUSTICE AND RECONCILIATION
Broadly speaking, options available to a new democratic society include (1)

criminal sanctions; (2) non-criminal sanctions; and (3) the rehabilitation of the
society. Usually, the path chosen takes into account three goals: truth, justice,
15 N.
Roht-Arriaza, "Combating Impunity: Some Thoughts on the Way Forward", (1996) 59
Law & Contemporay 93 and R. Teitel, "TransitionalJurisprudence:The Role of Law in
Problems
PoliticalTransformation",(1997) 106 TaleLawJournal2009.
16
J. Zalaquett, "ConfrontingHuman Rights Violations Committed by Former Governments:
PrinciplesApplicable and PoliticalConstraints"in AspenInstitute
JusticeandSocietyProgram
StateCrimes:
Punishment or Pardon,Maryland, 1989.
17 S. Huntington, "The Third Wave Democratizationin the Late Twentieth Century"in N. Kritz
(ed.), above, n. 11, at 65.
18 As in
Argentina, East Germany, Persia (now Iran) and the Philippines.
and reconciliation. The balance19 struck between these goals is determined to a

large extent by the type of transition, and thus the limits of the power of the
new regime to make unfettered choices. Rwanda's new government has almost
no fetters on its discretion, although the choices made will certainly have long-
term ramifications.
Truth is knowing about and officially acknowledging past human rights
abuse. This official acknowledgement can open a dialogue in the state between
individuals, and the various groups in the society.20 Facilitating an open and
honest dialogue can effect a catharsis, and prevents collective amnesia which is
not only unhealthy for the body politic, but also essentially an illusion-an
unresolved past inevitably returns to haunt a society in transition.21
Justice is a critical aspect of ensuring respect for human rights and the rule
of law-it is necessary to prevent future violations. Justice deters similar acts in
the future and promotes peace and human rights while consolidating the new
government as one bound by the rule of law, and therefore distinctly different
to the regime of the past. The degree of justice possible depends on-among
other things-historical, political, military and socio-economic factors. It is shaped
by the nature of the past, the obstacles of the present, and the future needs of
the society.22Prosecutions may be ineffective in fragile democracies where regimes
may not be able to survive the destabilizing effects of politically charged trials.
Many countries emerging from dictatorship are polarized and unstable, and may
be further fractured by prosecutions of those from the previous regime. This is
certainly true in Rwanda.
The basic argument in support of prosecutions is that trials are necessary in
order to bring violators of human rights to justice and to deter future repression.23
By holding past violators criminally liable, the transition from an oppressive to
a just society is emphatically marked, and the new government is consolidated.
Those who oppose prosecution as a means of dealing with the past argue that
such trials serve not as a remedy for, but rather as a perpetuation of, human
rights abuse; due process is rarely guaranteed, ex postfacto laws are often applied
and, as a result, the trials are nothing more than victor's justice.24 Those who
oppose trials often advocate granting amnesty to former power elites, thereby
quelling the possibility of an uprising that would threaten the new regime.25
This, it is argued, does more to consolidate the new regime than having trials.
Generally speaking, the answer as to whether to prosecute or not must lie
19 See D. Pankhurst, "Issues of

Justice and Reconciliation in Complex Political Emergencies:
ConceptualisingReconciliation,Justice and Peace", (1999) 20(1) ThirdWorldQuarterly 239.
20 M. CherifBassiouni,"Searchingfor Peace and AchievingJustice:The Need for Accountability",
(1996) 59 Law & Contemporary Problems9, 24.
21
J. Sarkin,"The Trials and Tribulationsof the Truth and Reconciliation Commission in South
Africa",(1996) 12 SouthAfricanJournalonHumanRights617.
22 R. Goldstone, "Justiceas a Tool for Peace-Making: Truth Commissions and International
Criminal Tribunals",(1996) 28 New YorkUniversity Law & Politics485, 486.
Journalof International
23 See D. Orentlicher, "SettlingAccounts:The Duty to Prosecute Human Rights Violations of a
Prior Regime", (1991) 100 TaleLawJournal2537, 2542.
24 See M. Mutua, "Never Again: Questioning the Yugoslav and Rwanda Tribunals",(1997) 11
TempleInternationaland Comparative Law Journal 167, who argues that the Nuremberg Tribunal
"representedthe calculatedrevenge of the victors [and] had little to do with justice per se", at 185.
25 See also the example of South Africawhere the draftersof the interim constitutionrecognized
the primacy of reconciliationand reconstructionto the pursuit of national unity and accepted the
principleof amnesty as a necessarytool for this purpose. SeeJ. Sarkin,"The Trials and Tribulations
of the Truth and Reconciliation Commission in South Africa", (1996) 12 SouthAfricanJournalon
HumanRights617.
somewhere in between the two sides of the debate. The goal has to be to find
an appropriate balance between denouncing the abuses committed by the former
regime, consolidating the new regime, and achieving reconciliation. At the same
time it must be remembered that there is no uniform nor magic formula for
deciding when prosecutions are appropriate. There are unique considerations
in every country's transition. However, there are some general considerations
that should be taken into account in every determination of whether to prosecute.
These include: (1) the nature of the transition and whether the former regime
is still capable of an effective uprising; (2) the type and extent of crimes; (3) the
applicability of old and new laws; (4) the judiciary's capacity to guarantee fair
trials; (5) the public perception of the intention behind the trials and the effect
the trials could have on reconciliation; (6) the cost and resource question in
relation to other priorities; and (7) the effect of trials on investor confidence.
However, even if the prosecution route is followed, it does not always lead to
positive results for a transitional society. Experiences with war crimes trials, for
example, show that it is difficult to meet the hopes and expectations of the
victims by these means. Victims are mostly not involved in the trials, and are
often denied the cathartic experience of a process that focuses on them as victims.
In isolation, trials allow for recognition of only a single version of events. While
trials can help lead to truth, the criminal justice system must adhere to principles
of due process and the assignment of individual, not collective, responsibility.
Trials often limit truth discovery. In addition, new judges that have been
appointed may not be willing to hand down decisions that are too politically
controversial. The standard of proof for conviction in a criminal trial is higher
than that in a civil trial. Guilty verdicts are therefore far from certain. An
acquittal can have a devastating effect on victims and the society in general. It
must also be remembered that the aim of a trial is to attain a guilty verdict, not
to assist victims in their recovery process. There could, therefore, be major
disadvantages in using the criminal justice system in a transitional society from
the viewpoint of victims of human rights abuses. Issues such as resources and
the state of the criminal justice system will play a critical role in determining
the number of trials. The state might not have the available human and financial
resources to pursue or carry out these prosecutions. If the requirement to
prosecute everyone who has committed atrocities is met, it may place impossible
demands on the judiciary. However, criminal punishment is a very effective
means of preventing future repression.26 Knowling that there is a good chance
of being prosecuted will deter many who may be tempted to commit human
rights abuses.
These are some of the reasons prompting some states to grant amnesty to
perpetrators of gross human rights abuses, or not to prosecute those who have
committed atrocities. However, the context in which trials occur is crucial, as
are the way they are seen. Fears about victor's justice, real or imagined, can
have a long-term negative effect on relationships and reconciliation. Prosecutions,
while often having positive results, can also have very negative consequences
and can completely undermine a country's long-term stability. In the Rwandan
context, Professor Mahmoud Mamdani has stated:
26See for exampleJ. Malamud-Goti,"TransitionalGovernmentin the Breach:Why Punish State

Criminals?",(1990) 12 HumanRightsQuarterly
1, 12.
"After 1994, the Tutsi want justice above all else, and the Hutu democracy above
all else. The minority fears democracy. The majority fears justice. The minority
fears that democracy is a mask for finishing an unfinishedgenocide. The majority
fears the demand for justice is a minority ploy to usurp power forever."27
This notion of victor's justice is implicit in the comments of Mark Drumbl, who
writes about his work as a defence lawyer in Rwanda. He notes that:
"thosepresentlygoverningRwandan society and insistingupon the genocide trials
are, for the most part, RPF28Tutsi who have a different background than the
Tutsi victims of the genocide. To this end, those promulgatingthe genocide trials
are, for the most part, not the same people whose families were killed during the
genocide."29
Thus, different motivations for prosecuting those in detention are believed. For
example, people in prison say they do not know why they are there.30 Some
state that they have been detained because of their former jobs or jobs that
relatives held.
The Organization of African Unity's (OAU) report of a seven-member
international panel of eminent persons, assembled to investigate the Genocide
in Rwanda, in this regard finds that:
"The tragic truth, as one observerputs it, is that, 'The government seems caught
in a vicious cycle. It is perceived by the Hutu masses as an occupying force
maintainingpower throughthe use of arrestand intimidation.The jails, filled with
people who are the sons, brothers, cousins, nephews, or fathers of most Rwandan
Hutu, are a persistent reminder of this power. But from the government's
perspective,without the arrestsand the consequent intimidation,the Hutu masses
may revolt against the minority government.'"31
The perception of at least some of those awaiting trial, and their families, is that
the process is a Tutsi version of victor's justice.32 This notion of victor's justice
is alluded to by the Special Representative of the Commission on Human Rights
on the situation of human rights in Rwanda, Michel Moussalli,33 who reported
on 4 August, 2000, that:
"thevictorswent for a maximalistapproachto justice, arrestingnot just the leaders,
planners, instigators and main implementers, but everybody suspected of any
participationin the genocide of Tutsis or the massacresof moderate Hutus."34
27 M. Mamdani, When Does a Settler Become a Native? Reflections of the Colonial Roots of
Citizenship in Equatorial and South Africa, Inaugural Lecture, University of Cape Town, New
Series, No. 208, May 1998, 11.
28 Rwandan PatrioticFront.
29 M. Drumbl, "Rule of Law Amid Lawlessness:
Counsellingthe Accused in Rwanda's Domestic
Genocide Trials", (Summer 1998) Columbia HumanRightsLaw Review546, 567.
30 See
Amnesty International,Rwanda Unfair Trials:Justice Denied, April 1997 (AI Index: AFR
47/08/978).
31 318-page report of the seven-memberinternationalpanel, assembled by the Organization of
African Unity (OAU 2000) ch. 18.60.
32 S. Vandeginste, "Justice,Reconciliation and
Reparation after Genocide and Crimes Against
Humanity: The Proposed Establishmentof Popular Gacaca Tribunals in Rwanda", Paper to the
All-Africa Conference on Principles of Conflict Resolution and Reconciliation, Addis Ababa,
November 1999.
33 The mandate of the
Special Representative,as stipulatedin Commission resolution 1997/66
of 16 April, 1997, is "to make recommendationson how to improve the human rights situation in
Rwanda, to facilitatethe creation and effectivefunctioningof an independent national human rights
commission in Rwanda, and further to make recommendations on situations in which technical
assistanceto the Government of Rwanda in the field of human rights may be appropriate."
34 Fifty-fifthsession Item 116(c) of the provisionalagenda human rights questions:human rights
situationsand reportsof special rapporteursand representatives-Rwanda report of 4 August, 2000.
The consequence of this is that "many Rwandans outside and inside Rwanda
(and not only those in prison) do not sufficiently recognize the state as theirs,
and do not sufficiently recognize the justice rendered as theirs".35 The OAU
report notes:
"many Hutu remain alienated from and intimidated by this regime. The
government, then, does not trust the majorityof its citizens, and they do not trust
their government.The vicious cycle continues:The governmentbelieves it has no
choice but to maintain its strict control. Most Hutu seem to believe either that
Hutu Power will rise up one day or that simple population facts will eventually
return them to power."
The report further notes:
"Hutu perceive the current situation as massive political and ethnic oppression,
since tens of thousands of their families are directly affected by the detentions,
despite the fact that they insist on their innocence and in any event should be
consideredinnocent until proven guilty.37. . . Hutu radicalswho still claim to speak
for Hutu in Rwanda refuseto acknowledgeeven that there was a genocide: a civil
war in which both sides committedatrocities,yes; Tutsi-inflictedgenocide, in which
Hutu were the victims, yes; perhaps even genocide by both sides. But denial of
the one-sided genocide of April to July 1994 remains an unshakeable article of
their faith. Accordingly,there is no need for collective atonement or for individual
acknowledgementof culpability."38
Regardless of whether this is true or not, it is believed by at least a part of the
population. Drumbl reports that:
"the overwhelmingmajorityof the prisoners we interviewed do not believe they
did anything wrong. They believe they are incarceratedsimply because their side
lost the war. Should their side win and topple the Government of National Unity,
they will be freed. Their imprisonment,so goes the thinking, has nothing to do
with any wrongdoing, but only with the vengeance of the new group which now
holds the reins of power."39
This view has even been articulated before the International Criminal Tribunal
for Rwanda. During the trial of Georges Rutaganda, Belgian defence lawyer
Luc de Temmerman stated:
"It is not Hutus who are guilty of this so-called genocide. We are convinced there
was no genocide. It was a situationof mass killingsin a state of war where everyone
was killing their enemies ... There are a million people dead, but who are they?
They are 800,000 Hutus and 200,000 Tutsis. Everyone was killing but the real
victims are the Hutus. So they've got this so-called genocide all wrong."40
This sense, or perception, is exacerbated by Hutu exclusion from many aspects
of Rwandan society. The United Nations High Commissioner for Refugees
notes:
"Over the years, the current government demonstrated a lack of interest in
establishinga broad politicalpower base and in processesleading to power-sharing.
Instead, gradual exclusion of Hutu opponents from the top political levels, as well
35 above,n. 32.
36Vandeginste,
OAU 2000 ch.23.64. See B. Crossette,"ReportSays U.S. and OthersAllowedRwanda
Genocide", TheNewYorkTimes,8July, 2000, and TheWashingtonPost,"WestTurned Back on Rwanda
Genocide, OAU Report Says", 8 July, 2000.
37 OAU 2000 ch. 18.59.
38 OAU 2000 ch. 23.61.
39 Drumbl, above, n. 29, at 546, 547.
40 See "Rwanda Genocide is a Lie, Court Told", Electronic Mail and Guardian
http://web.sn.
apc.org/wmail/issues/961004.
as in the administration and in the judiciary, added to the current conflict

potential."41
According to Prunier, at the end of 1996, 15 of the 22 cabinet directors, 16 of

19 director generals, six of the 11 prefects, 80 per cent of burgomasters and 95
per cent of all soldiers, gendarmes and police officers were Tutsi.42 The
International Panel of Eminent Personalities of the OAU report in 2000 noted:
"Some have argued that from the very first, real power in the government has
consistentlybeen monopolized by a small group of Tutsi, even though Hutu have
formallybeen well represented.In 1999, for example, while the Cabinet contained
14 Hutu and 12 Tutsi, of 18 ministerialgeneral-secretariesidentified, 14 were RPF
Tutsi; with only two exceptions, all the non-RPF ministers have RPF general-
secretaries.Of the 12 district prefects, nine were Tutsi, two Hutu; one position
was vacant. Over 80 per cent of burgomastersare estimated to be Tutsi. Among
the 14 officerscomprisingthe army and gendarmeriehigh command, only one is
Hutu. The 'tutsization' of the judicial apparatus is also evident: the Supreme
Council of the Judiciary is mainly Tutsi; three of the four presidentsof the Courts
of Appeal and the majority of the judges of the Tribunal of First Instance are
Tutsi. For the first time since the new government took over, the Presidentis now
Tutsi as well."43
While the state is still Tutsi-dominated, some Hutu individuals have been
brought in. This has, however, been undermined by the fact that several leading
politicians-nearly exclusively Hutu-have left or have been forced to leave the
government, the National Assembly, senior administration posts and the justice
system. In this regard the United States Department of State in its 2000 Rwanda
Country Report reported that the:
"largelyTutsi Rwandan Patriotic Front (RPF), which took power following the
civil war and genocide of 1994, is the principal political force and controls the
Government of National Unity ... [and] ... Some Hutu organizations and
individualsaccuse the Governmentof favoringTutsis, particularlyEnglish-speaking
Tutsis, in governmentemployment,admissionto professionalschooling,recruitment
into or promotion within the army, and other matters. Some organizationsalso
complainthat in hiring,the governmentfavorsEnglish-speakingTutsis over French-
speakingTutsis."44
In addition, many Hutu leaders have left or been forced out of high profile
positions. This has added to the perception of Hutu exclusion. These include
Fautin Twagiramungu (Hutu Prime Minister, who resigned and fled in 1995),
Seth Sendashonga (RPF Hutu Minister of the Interior, who resigned in 1995
and was assassinated in Nairobi in 1997), Augustin Cyiza (Hutu President of the
Cour de Cassation,who resigned under pressure in 1998), Faustin Nteziryayo
(Hutu Minister of Justice, who resigned and fled in January 1999) and Alype
Nkundiyaremye (Hutu President of the Council of State, who fled inJune 1999)
and the Hutu President of Rwanda, Pasteur Bizimungu, who resigned in 2000.
In fact it has been reported that in 2000:
41 United Nations High Commissionerfor Refugees Background Paper on the Human Rights
Situation in Rwanda, UNHCR Centre for Documentation and Research, Geneva, January 2000.
See further European Platform for Conflict Prevention and Transformation, Rwanda Country
Survey, 1999.
42 G. Prunier, TheRwandaCrisis.Historyof a Genocide,
New York, 1997, 369.
43 OAU 2000 ch. 23.
44 United States Department of State in its 2000 Country Reports on Human Rights Practices
Released by the Bureau of Democracy, Human Rights, and Labor in February2001.
"Not all bodes well on the unity front, however. Eight Hutus have resigned from
government posts during the past year over differenceswith Tutsi leadership ...
some observerssee danger sins in a largely Tutsi-run government in a country
with a huge Hutu majority."
A report of the UN High Commissioner for Refugees reported inJanuary 2000
that:
"Aftera series of governmentreshuffles,ministers'resignationor flight abroad, the
legitimacy of the Tutsi minority-ledgovernment is fragile and undermined by the
continuing defections of its Hutu members. Hutus are discouragedfrom voicing
their opinions in the political arena fearing retaliation."46
Michel Moussalli also reported in August 2000 that:
"some tensions, concerns and disquiet have appeared in recent times in the
population at large, as reported to the Special Representative by civil society
organizationsand other stakeholders.They are reportedlydue to the insufficiently
explained personnel changes at or near the top of the political hierarchy,
some apparently isolated and unexplained cases of assassinationsof high-level
officials .. ."47
Exclusion from land and enforced relocation to villages is another major

source of tension.48 While there has been growth in the economy, infrastructure
restored and about four million people resettled, major problems exist around
the question of access to land and where people live.49 Enormous population
growth is exacerbating the problem.50 Hutus, for the most part, have, since the
genocide, been completely marginalized both politically and economically. As
refugees return at the rate of about 500 a week, they find others on the land
they used to occupy. Fear of being denounced as a genocide perpetrator stops
many from reclaiming their land. This is an issue that needs to be resolved as:
"the numbers of people forced out of farming and becoming impoverished are
likely to pose a social and ethnic threat. Rwanda's history should have shown that
an ethnicization of economic activities is something to be avoided if the country
wants to evolve to a more peaceful future."5'
The UN High Commissioner for Refugees has also commented that:
"Hutu returnees continued to be subject to a high level of control and the
reintegrationprocess seems to be proceeding very slowly. In such circumstances
of increased segregation, there seems little hope of ethnic reconciliation and an
integratedsociety."52
As far as the villagization process is concerned, Michel Moussalli has commented
that the policy of collective resettlements known as imidugudu,or villagization:
"has alarmed many of Rwanda's important partners. On 12 July, 1999, the
European Union Council of Ministersurged Rwanda to ensure 'carefulplanning,
prior impact studies and pilot projects in order to avoid villagization that brings
45 J. Lampman,"WomenLead in Effortto Rebuild Rwanda", Christian

Science
Monitor,15 February,
2001.
46 See
above, n. 41.
47 See above, n. 34.
48 Land has been a source of conflict for
many years in Rwanda and is believed to have been a
factor leading to the genocide. SeeJ. Sarkin,"The Necessity and Challenges of Establishinga Truth
and Reconciliation Commission in Rwanda", (1999) 21(3) HumanRightsQuarterly 767.
49 Editorial:"Rwanda:No Easy Answers",TheEastAfrican(Nairobi),8 March, 2000.
50 S. Van Hoyweghen, "The Urgency of Land and Agrarian Reform in Rwanda", (July 1999),
98 (392) AfricanAffairs353.
51 See above, n. 50, at 353, 367.
about human rightsviolations'.This reflectsthe two chief concerns of donors:first,

that villagization may be coercive, and second, that it could further undermine
Rwanda's agriculturalproductivityand food security. There is some evidence on
both counts. In December 1998, 41 per cent of those questioned in a government
survey of Gisenyi and Ruhengeri said that they wanted to remain in their own
homes instead of moving to villages."53
Without examining the effect of this process, Human Rights Watch on 16

February, 2001, noted:
"Since late 1996, the Rwandan government has ordered tens of thousands of
personsto leave their homes and take up residencein officially-designated'villages'
known as imidugudu. In some cases homeowners have been obliged to destroy
their own homes before moving to the imidugudu;in others landholdershave been
obliged to cede their fields to serve as building sites. Persons unwilling to move
and those critical of the policy have been subject to harassment, imprisonment,
and fines by government officials. Established without any form of popular
consultationor act of law, this policy of ruralresettlementdecreed a drasticchange
in the way of life of approximately94 per cent of the populationwho had previously
lived in dispersed homesteads, near the fields they cultivated and where they
pastured their livestock.Households headed by women, children, and the elderly
appear to have sufferedmost from this policy because they are least able to provide
the resourcesneeded to build new houses in the imidugudu.Thousands of persons
who once lived in solid homes surroundedby their fields now live in temporary
shelters made of leaves, wood, and bits of plastic. Many of them have to walk
further each day to get to their fields, to fetch water or firewood, or to go to
school."54
Another study on the villagization process conducted by a university in the

Netherlands concluded that in regard to the villagization programme the
government "had hidden aims" and "its compulsory nature could contribute to
long term social tension".55
The army has remained a nearly exclusively RPA and Tutsi bastion. While
some members of other groups have been included, there is little faith that this
has been done to any significant degree. Negative perceptions of the army have
been aggravated by human rights violations at the hands of soldiers. The fact
that free political activity is prohibited and that "no political party, other than
the RPF, is allowed to conduct the usual political party activities, despite their
representation in the National Assembly",56 feeds doubts that are held about the
democratic intentions of the government. According to one report, "local and
international human rights organizations alleged that some Hutu residents,
mostly boys and small business owners, disappeared from their homes or from
prisons".57 These events can only further the notion of Hutu exclusion and the
specific targeting of Hutus by the government. Unless these issues are dealt with,
and these perceptions laid to rest, the achievement of long-term peace will be
impossible. Long-term peace requires reconciliation; stability and growth depends
on it.

54 See written statement submitted
by Human Rights Watch to the Commission on Human
Rights Fifty-seventhsessionItem 10 of the provisionalagenda. E/CN.4/2001/NGO/30 16January,
2001.
56 See
above, n. 32.
57 The United States
Departmentof State in its 2000 CountryReports on Human Rights Practices
Released by the Bureau of Democracy, Human Rights, and Labor in February2001.
New regimes often inherit societies fractured by oppressive regimes that have
utilized race, religion, ethnicity and other divisions to gain and maintain power.
Populations subjected to "divide and rule" tactics, as was the case in colonial
Rwanda, are likely to remain divided and to continue to feel deep-seated fear,
resentment and other negative emotions against other groups in that society.
These are formidable obstacles to reconciliation in any country. Reconciliation
is a long-term goal that requires deliberate, measured programmes and processes.
Finding a way to achieve reconciliation is often at odds with the goals of achieving
truth and justice. For example, the pursuit of truth must sometimes come at the
expense of justice. Likewise, the pursuit of justice does not always promote
reconciliation.58 Dealing with the unique circumstances of each country's situation
requires balancing truth, justice and reconciliation to achieve the best result,
given the relevant political, social, economic, demographic and other factors.
Until now reconciliation in Rwanda has not been seen to be a major objective
by the government. Comparing South Africa and Rwanda, Mahmoud Mamdani
comments that in South Africa the Truth and Reconciliation Commission:
"exemplifiesthe dilemma involved in the pursuit of reconciliationwithoutjustice,

whereas Rwanda exemplifies the opposite: the pursuit of justice without
reconciliation."59
While it seemed the government of Rwanda was investigating the possibility
of a truth commission process in that country when it visited South Africa in
1996 and again when it visited the South African Truth and Reconciliation
Commission in 1997, it has now rejected the idea.60 On their visits to South
Africa, the Rwandans commented that reconciliation would be nice, but that
they preferred justice, and reconciliation could wait. In addition, the Rwandan
Minister of Transport commented "we don't need truth, we know who did
what".61 The government of Rwanda believes that such a commission is not a
feasible option at the present time for a number of reasons. One reason given
is that the process should begin at the local level to bring communities together.
However, many of the reasons for the government's reluctance to have such a
process now are predicated on political factors. It is only recently that
"reconciliation" has entered the government's vocabulary. Even then, the context
in which it is brought up is usually that there can be no reconciliation with
victims unless there has been justice. However, a change in this attitude has
been described like this:
"Afterfive years of refusingto talk of reconciliationuntiljustice is seen to be done,
Rwandans have accepted that reconciliation must be a national goal in its own
right."62
58 See C. Nino, "The Duty to Punish Past Abuses of Human Rights Put into Context: The Case
of Argentina", (1999) 109 TaleLaw Journal2619, who argues that a categorical absolute rule
demanding the punishment of human rights abuses is not always conducive to remedying/ending
such abuses.
59 M. Mamdani, "Reconciliationwithout Justice", (November-December 1996) Southern Afriican
Review
ofBooks3-5.
60 W. Schabas, 'Justice, Democracy, and Impunity in Post-genocide Rwanda: Searching for
Solutionsto ImpossibleProblems",(1996) 7 Criminal Law Forum523, 559.
61 See D.
Goodman, 'Justice Drowns in Political Quagmire", Electronic Mail and Guardian, 31
January, 1997, http://web.sn.apc.org/wmail/issues/970131.
62
Report of Special RepresentativeMoussalli, Fifty-fifthsession Item 116(c) of the provisional
agenda human rights questions: human rights situations and reports of special rapporteurs and
representativesreport of 4 August, 2000.
The question, however, is whether this agenda has been provoked by international
concern or whether it is real in the sense of ensuring reconciliation for all-victims
and perpetrators alike. As far as mechanisms to foster reconciliation and a human
rights culture are concerned, Rwanda has established two commissions to
assist with unity, reconciliation63 and human rights.64 However, the structure,
appointment method and focus of these bodies may limit their efficacy.65Without
doubt, an independent process aimed at uncovering the truth and achieving
national reconciliation in Rwanda is necessary. A national independent truth
commission could analyse various versions of events and validate more than one
version by accepting differing testimony and incorporating all versions into a
report that becomes official history.66
HUMAN RIGHTS IN RWANDA
The government of Rwanda has done very well in re-establishing the structure
of the state and its various institutions. At local and national level, administrative
organizations have been restored, the schooling system has swiftly been re-
established, an entirely new communal law enforcement establishment has been
set up, the transport system has been repaired, and new roads are being built.67
Various new institutions have been established such as the National Human
Rights Commission. However, as far as the latter commission is concerned,
Human Rights Watch reported that:
"The governmentproposedten candidatesfor the seven posts on the Commission.
The candidateswere then elected by the National Assembly. Of the seven elected,
one, the commission'spresident,previouslyserved as head of a small human rights
organization based in Belgium and another headed a women's association in
Rwanda that did considerable work in human rights. The others came from
governmental posts or positions linked to the Rwandan Patriotic Front. One
commissionerwas formerlya high rankingofficer in the Rwandan PatrioticArmy
and served for sometime as its liaison to the foreign press before becoming editor
of a semi-officialnewspaper."68
Human Rights Watch therefore states:
"It is too early to tell whether the Commissionwill function independentlyenough
to help improve the situation of human rights in Rwanda. Given the strong
governmentallinks of the majorityof its members, it may prefer to work through
personal contacts behind the scenes ratherthan through public criticismof abuses.
While this may help resolve individual cases, it will do little towards developing
real respect for human rights in Rwanda."69
In the legal system some important legal reforms have been carried out. Essential
structures (such as the Supreme Court and the Supreme Council of Magistrates)
have been put in place and court buildings have been repaired. New judicial
63
This body beganits taskby investigating
whatreconciliation
is. SeeJ. Lampman,"Taming
the Desirefor Revenge:AfricanNationsDrawon CulturalHeritageto HealWoundsof Warand
RestoreSocialFabric",ChristianScience 4 November,1999.
Monitor,
64 The law providingfor the NationalHumanRightsCommission was passedinJanuary1999
and the commissioncameintobeingon 24 May, 1999.
65 See later, Human Rights Watch, "Protectors or Pretenders: Government Human Rights
Commissionsin Africa-Rwanda (2001).
66 This will be examined in more detail below.
67 See
above, n. 32.
68 See
above, n. 65.
personnel have been trained and, by May 1999, 104 judges had been trained
and there were a total of 1,800 people in the judicial system.70
However, in February 2001 the United States Department of State reported
that the government's human rights record in 2000 remained poor and that it
"continued to be responsible for numerous, serious abuses; however, there were
some improvements in a few areas". The army was accused of extra-judicial
killings. The report also noted that:
"security forces beat suspects, and there were some reports of torture ... a
nongovernmentalorganization(NGO) credibly reported that beatings at the time
of arrest are common, and some released detainees reported that they had been
tortured."71
The OAU panel reported in July 2000:
"Film footage from Rwandan prisons in the first year or two after the genocide
shows men crammed together with little sanitation in disgustingconditions, many
of them with open wounds and paralysedlimbs, the resultsthey claimed of beatings
and torture by RPF soldiers."7
In this regard Michel Moussalli reported in 2000 that as far as detention in the
cachotsare concerned, "scores showed the wounds of mistreatment"73 and the
UN High Commissioner for Refugees reported that:
"During 1998 more than 3,300 prisonersdied. Conditionsin the cachots, the local
detention centers, are even worse. ... Cases of torture or ill-treatmentwere also
reported, usually at the time of arrest and interrogation,during detention in the
cachots and in the militarydetention centers."74
Amnesty International in a 2000 report noted:

"Conditionsin many prisonsand detention centresin Rwanda still constitutecruel,
inhuman or degradingtreatment.Gross overcrowding,poor hygiene and medical
care, and insufficientfood continue to cause widespreaddisease and thousands of
deaths ... Many detaineesin the cachots communaux, in militarydetention centres
and in some brigades have been subjected to torture or other forms of ill-
treatment-most commonly beatings. Beatings-usually inflicted during arrest or
in the initial period of detention-were consideredvirtually'normal' by detainees
due to their frequency... In some cases, the torture or ill-treatmentwas so severe
that detainees have died."75
In its Resolution 1999/20, the UN Commission on Human Rights reiterated:
"its concern at the conditions of detention in many communal detention centres
and some prisons in Rwanda, calls on the Government of Rwanda to continue in
its effortsto ensure that personsin detention are treatedin a mannerwhich respects
their human rights and emphasizes the need for greater attention and resources
to be directed to this problem, and again urges the international community to
assist the Government of Rwanda in this area."
Obviously these are major human rights problems, but they also have major
political and anti-reconciliation effects in Rwanda. It is believed by many that
70 D.
Browne,"HowBritainCanHelpBringJustice afterWorld'sFastestGenocide",TheScotsman,
14 November,2000.
71The United States
Departmentof State in its 2000 CountryReportson Human Rights
Practices,releasedby the Bureauof Democracy,HumanRights,and Laborin February2001,US
Department of State2001.
72 OAU 2000 ch. 18.36.
73 Reportof SpecialRepresentativeMoussalli,see above,n. 62.
74 See above, n.41.
75 See above, n. 4.
the government, by condoning or doing little to prevent these abuses, exacerbates

the levels of bitterness and resentment in the general population by detaining
alleged perpetrators of genocide in severely overcrowded and disease-infested
prisons.76 While human rights abuses are reported by a variety of independent
sources, a new trend as reported by the United States Department of State is
that:
"duringthe year, the Governmentbegan to provide to human rightsorganizations,

and even other governments, systematic replies and rebuttals to allegations of
human rights abuses."
THE GENOCIDE
TRIALSSOFAR
While the criminal justice system has improved dramatically since 1994, it is
still weak and the judiciary is still overwhelmed. The courts lack infrastructure,
qualified personnel and funding. Due process rights have often been absent-in
violation of both international standards and Rwandan law. In this regard the
OAU report notes:
"there can also be little doubt that much justice dished out, both formally and
informally, could best be described as rough. Frankly, without condoning this
situation, it seems to us that many Tutsi would be inspired by an unquenchable
thirst for vengeance and that many of them set out to wreak that vengeance. It is
certain that great injustice was inflicted on many innocent Hutu in these recent
years."77
In this regard Drumbl, who worked as a defence lawyer in Rwanda, noted in
1998 that they have tended towards the "haphazard and erratic" and "trappings
of due process, although increasing, still remain fleeting".78 The situation has,
however, improved to some degree.79 It has, however, not been an issue high
up on the agenda for improvement-it has been stated that financial and human
resource constraints do not permit this.80
Trials did not begin in Rwanda until December 1996. The manner in which
the trials have been conducted has raised questions about their fairness. The
court milieu's hostility to those on trial has been made apparent by the booing
of defendants and applause for the prosecutors. In some cases trials have been
concluded in as little as four hours.81 Between 1996 and the end of 2000 about
3,343 cases had been dealt with.82The death penalty was handed down in about
20 per cent of cases. Life imprisonment was imposed in 32 per cent of cases,
76 In
February2001, it was estimatedthat 120,000 detainees were being held captive in Rwanda
even thoughthe detentionsystemhad been designedfor only 30,000. With such extremeovercrowding,
it is not surprisingthat detention conditions are poor. Problems include poor sanitation, lack of
sufficientfood and inadequate health care. Detainees have also been subject to cruel and unusual
punishment, including rape, torture of juveniles, and denial of food by RPA soldiers and prisoner
guards. See the Report on the Situation of Human Rights in Rwanda, submitted by Mr Rene
Degni-Sigu, Special Rapporteurof the Commission of Human Rights (20/01/97) E/CN/1997/61.
See further,Amnesty International,Rwanda: The Troubled Course ofJustice, Report AFR 47/10/
00, April 2000.
77 OAU 2000 ch. 18.2.
78 Drumbl, above, n. 29, at 546.
79 See Amnesty International,Rwanda Unfair Trials:Justice Denied, April 1997 (AI Index: AFR
47/08/978).
80 Inadequate financial and human resourceshas been a major obstacle in the establishmentof
an independent and impartialjudiciary.
82 See
above, n. 57.
and acquittals made up about 20 per cent of the total.83 Part of the reason why
so few trials have been held is because of the small number of trained judges in
Rwanda. Many judges were killed during the genocide. However, the number
of judges involved in the genocide trials has continued to rise: as of August 2000,
104 judges were appointed at the Specialized Chambers (versus 76 in November
1998).84 However, there are other reasons for the slow pace of the trials.
Absenteeism of judges, for example, remains important, and is a major cause of
delayed hearings.85
Michel Moussalli noted in August 2000 that "the overcrowding in Rwanda's
prisons is due primarily to the slowness of the justice system in processing cases
and completing trials".86While the government of Rwanda blames the fact that
there are few lawyers and limited resources, Attorneys without Borders in its
1999 report, states that "there is clear progress and justice is at work, but justice
is non convincing (lajusticene convaincepas)".87The US Department of State notes
that:
"thejudiciary is subjectto executive influence and also suffersfrom inefficiency,a

lack of resources,and some corruption.There were occasional reports of bribery
of officials,ranging from clerks to judges. ... Several magistratesand prosecutors
were suspended or dismissedon corruption charges during the year. There were
reportsthat some magistrateswere removed from office from May throughAugust
following 'not guilty' verdicts of suspects alleged to have participatedin the 1994
genocide. There also were credible reports that a few magistrateswere removed
from offices on false charges of genocide."88
As noted above, exclusion has characterized Rwanda. This has also occurred
in the legal system. Thus, the refusal to incorporate some experienced Hutu
judges and prosecutors into the criminal justice system has removed trained
individuals from the legal system who could have ensured that the system could
have worked far better. Some Hutu lawyers have been arrested, assassinated or
forced into exile. In this regard the OAU report notes:
"Yet as in virtuallyall other sectors of Rwandan public life, the justice system was
dominated by Tutsi. Most of the new judges were Tutsi, as were most of the
Supreme Council of the Judiciary and three of four presidents of the court of
appeal. Six Hutu judges were suspended in 1998 and later dismissed. Moreover,
the independence of the judicial system was called into question soon after the
courts began to function, as military officers,civilian officialsand other influential
people did not hesitate to interferewith its operations."89
US Departmentof Statein whichit is statedthat,accordingto a

83 See above,n. 4. See further,
"localhumanrightsorganization, betweenJanuary andSeptember2000, 1,588personswerejudged.
Of the 585 personsjudgedon genocide-related chargesbetweenJanuaryand March,58 received
the deathpenalty;124 were sentencedto life in prison;248 receivedvariousprisonterms;75
receivedother penalties;and 80 were acquitted.The vast majorityof trialsmet international
standards."
84 AvocatsSansFrontiers JusticepourTousau Rwanda.RapportSemestriel.ler semestre1999,
Bruxelles,Kigali,(Septembre1999)5.
85 See above,n. 84, translatedby S. Vandeginste,'Justice,Reconciliation
and Reparationafter
GenocideandCrimesAgainstHumanity: The ProposedEstablishmentof PopularGacacaTribunals
in Rwanda".Paperto the All-AfricaConferenceon Principlesof ConflictResolutionand Re-
AddisAbaba,November1999.
conciliation,
86 Reportof SpecialRepresentative Moussalli,above,n. 62.
89 OAU 2000 ch. 18.38.
A problematictrend has been to re-arrestafter discharge.Amnesty International

noted in April 2000:
"The trendtowardsre-arrestingdetaineeswho have been acquittedcould discourage
some of the judges and other officials who have so far demonstratedgood faith
and a willingness to act fairly; in the current political climate in Rwanda, the
acquittalof an individualaccused of genocide-even when there is a clear lack of
evidence-is a courageousdecision and significantprogresshas been made in this
area, as illustratedby the number of acquittals."90
THE GACACACOURTS
The use of traditional gacaca courts has been adopted by the Rwandan
government9l as a mechanism to ease the burden on the normal courts and to
apply justice92 by assisting the legal system to deal with those in detention
awaiting trial. However:
"gacacameans different things to different people. Some see it as a way to ease
overcrowding in the jails, some as a tool of reconciliation, some as a way of
establishingthe facts of genocide, and some as a way of punishing the guilty."93
The government gacacaproposal sees a wide-scale pyramid structure in terms of
which thousands of gacaca tribunals, at village, region and provincial level, will
be created under a department within the Supreme Court. The government
model sees gacaca tribunals at the lowest level of the pyramid, judging those
accused of Category 4 crimes (the least severe crimes) in terms of the 1996
Rwandan genocide law. More serious crimes are dealt with at appropriate higher
levels of the pyramid.
Traditionally the gacaca had a dispute resolution focus. The name is derived
from the word for "lawn", referring to the fact that members of the gacaca sit
on the grass when listening to and considering matters before them. The process
involves the community in dispute resolution, making it community-based. It
acts as a local healing and dispute resolution mechanism that is cheap and
accessible. In general, where these structures operate, people have some degree
of confidence in the system as they see respected community figures serving on
the gacaca and are able to observe proceedings in close proximity to where they
live. The gacaca, similar to nearly all systems of traditional law, is part of the
culture. It is established upon principles of morality and reverence of life. As
such it cannot be examined in a detached way, but has to be examined in the
context of the wider society and the changes that have occurred since the
genocide in 1994. Rwandan society, families and family relationships have
fundamentally changed as a result of the killings and large-scale population
movements since that time. The way in which the gacaca are used, and the role
these structures play has changed. People are now inclined to approach the
90 See above, n. 4.
91 PreambleDraft
Organic Law creating "GacacaJurisdictions"and Organizing Prosecutionsof
Offenses that Constitute the Crime of Genocide or Crimes against Humanity Committed between
1 October, 1990 and 31 December, 1994, Draft Organic Law.
92 In February2000, the Rwandan Parliament
unanimouslyenacted the law that establishedthe
gacacatribunals.It was reportedthat theJustice MinisterJean de Dieu Mucyo had stated that some
high-ranking individuals such as ministers would be immune from prosecution by the gacaca
tribunals.See IntegratedRegional InformationNetworksof the UN Office for the Co-ordinationof
HumanitarianAffairsIRIN Update 862 for the Great Lakes, 16 February,2000.
93
Report of Special RepresentativeMoussalli, above, n. 62.
gacaca less frequently, preferring instead to use the state courts. In the past, the
gacacaconsidered issues around marriage, divorce, succession, parental authority,
injury, and land disputes. One of its major purposes was to re-establish order in
a community.94 Because the gacacadid not previously deal with murder (ethnically
motivated or otherwise) or various lesser crimes relevant to the genocide, changing
their role so fundamentally could be unworkable.
A conciliatory view of how the government of Rwanda is planning to use
gacaca courts comes from Michel Moussalli:
"It is to the credit of the Rwandan authorities that ... they do not hesitate to
innovate and to try new approacheswhen it appears that the one at hand is not
working at all or not adequately.The current effort to institutegacacajurisdictions
alongside the conventional ones must be seen in this light. ... The Special
Representativeapplaudsthe boldness of the gacacaproposal. Time and time again
he was told that 'justiceas it is practised in the West is not working. We need to
find an alternative'.At the same time, he would point out, as many others have
done, that the gacacaplan is a major gamble. Furthermore,any Western country
of Rwanda's size faced with a caseload of these proportionswould have enormous
problems as well. If successful,gacacacould break the deadlock. Equally, it could
create an entirely new set of problems, as indicated above."95
He does, however, note that:

"the survivorsof genocide are coming around. They have reservationsabout any
proposalthat could free guiltygenocide perpetrators.But it has become increasingly
likely that the only alternativewould be an amnesty,which would be unacceptable
at present."
Amnesty International has reported that:

"delegateswho visited Rwanda in late 1999 received both positive and negative
reactions to the proposals from Rwandese of various backgrounds.Many people
expresseda general sense of hope and optimism for the proposals.However, some
familiesof victims of the genocide expressedfearsthat the gacacajurisdictionswould
result in excessively light sentences for those who may have committed terrible
crimes. Some of the accused, on the other hand, viewed the proposalsas a way of
legitimizingpopular retributionon those presumed to be guilty for the genocide.
Both groups expressed fears that the gacacajurisdictionswould be used as a way
of settlingpersonal scores, rather than extractingthe truth or deliveringjustice."9
At least one group, the Rally for the Return of Refugees and Democracy in
Rwanda (RDR), has rejected the gacacacourts.97 They released a press statement
claiming "the proposed courts give the accusers all the power to themselves
prosecute the accused".98 While the government claims that there is widespread
support for the process, the following testimonial needs to be borne in mind. It
was not made in the context of the gacaca courts but still has major relevance
for Rwanda today. A member of a human rights organization in Rwanda made
the statement:
"But who, in today's Rwanda, would dare to say no? Those who protest are
soon indirectly threatened. During commune assembly meetings, for instance, a
burgomastersometimes denounces the behaviour of someone who disagrees, by
94 See F. Reyntjens, (December 1990) 40 Politique

Africaine31.
95 Reportof SpecialRepresentative
Moussalli,above,n. 62.
96
See above, n. 4.
97 "RDR Rejects SpecialJurisdictionsin Rwanda", 2 October, 2000, Africa News Service.
98
See above, n. 97.
saying that he 'thinkslike the previous regime'. This comes close to an accusation
of complicity in genocide. Therefore, people prefer to remain silent."99
THE GACACALAWANDCOURTS
Various problems with the gacaca law need to be addressed to safeguard the
process and avoid long-term negative consequences. Of major significance is the
view of Alison des Forges, a well-known researcher and commentator on Rwanda
who has stated:
"The fairness of the proceedings will vary enormously, because they will be
essentially political rather than judicial proceedings ... The result in any one
community will be determinedby the local balance of power."1'?
This view, whether correct or not, indicates a perceived political motive and
focus of the process. Steps should therefore be taken to mitigate the perception
of possible political bias in the findings of these courts.
Firstly, the time-period during which crimes committed will fall within the
gacacajurisdiction could be contested terrain, as they will only deal with crimes
committed between October 1990 and December 1994. This alone is likely to
make large segments of society consider the process to be illegitimate. Many
believe that the history of discrimination and brutality perpetrated against them
during colonial times as well as during other periods of Rwanda's history are
the root causes of the events of 1994. If only the events that occurred between
1990 and 1994 are examined, people would regard this as prejudicially narrow
because the process would focus on the Hutu as perpetrators and fail to take
into account the long history of human rights abuses in Rwanda in which both
Hutus and Tutsis have been perpetrators and victims. There is a danger the
gacaca court process may be used for settling personal scores, political issues,
issues of land and property, and family issues. The OAU report notes that:
"In too many cases, false accusationswere made against those whose only 'crime'
was inhabitingland or propertyor workingin a post that returningTutsi refugees
coveted. In other instances, accusers were known to be seeking retribution for
some current or past wrong, real or imagined, but unconnected to the genocide.
In some cases, authorities wrongly charged political rivals with genocide and
imprisonedthem without cause."l
The gacaca law determines that crimes to be examined by these courts are:
"(a) crimes of genocide or crimes against humanity as defined by the December
9, 1948 conventionon the preventionand suppressionof the crime of genocide
in the August 12, 1949 Geneva convention, relating to the protection of legal
entities during war and its additional protocols and the November 26, 1968
conventionon the imprescriptibilityof war crimesand crimesagainsthumanity.
(b) or offenses,to which the penal code applies and according to the accusations
of the public prosecutorsoffice or testimonies for the prosecution, that the
defendant admits were committed with an intention to exterminate an ethnic
group."
These are extremely complex issues even for legally trained individuals.102 These
judges will have to understand and apply the Genocide Convention, the Geneva
99 OAU 2000 ch. 18.48.
'00 in Pittsburgh 24 September, 2000.
101Reported Post-Gazette,
OAU 2000 ch. 18.39. See also Drumbl, above, n. 29, at 546, 607.
102 See later.
Conventions and protocols, crimes against humanity as well as other conventions

and principles of international law. They will also have to apply domestic offences
to the principles relating to a very specific form of intent. Even to lawyers, the
question of the forming of intent in the legal sense is not a simple matter.
Additionally, some of the gacacatribunals will have powers to sentence individuals
to life imprisonment. This is obviously problematic because although criminal
sanctions will be handed down, those doing the adjudication are not legally
trained, and no procedural or other rights will be guaranteed. Special
Representative Moussalli also notes that:
"it might be difficult for an accused person to defend himself in a large public
meeting. And there is always the danger that people will try to disculpate (clear)
themselves by accusing others."'03
In terms of planning, logistics, training and uniformity, more than 250,000

individuals will be involved as adjudicators.'04 There cannot be consistency and
uniformity in the way that these courts function, understand or apply the law.
Whether sufficient training can take place to enable these structures to function
fairly and properly and to dispense justice in a fair and impartial manner is
unknown. There is no doubt that there will be enormous problems in setting up
these structures properly and in a very short time-period. It will be necessary to
educate those on the structures and the communities they are in about the
system, its procedures and what rules it must apply. It is also necessary to educate
the community about the benefits of a process which is conducted with dignity,
and what must be done to prevent preconceived notions and beliefs about people
who appear before these courts from undermining the work of the gacaca.
GACACAJUDGES
Who is appointed to the gacaca courts and how they are appointed is very
important, since these judges will determine the decisions that emanate from
that court. Appointment to the local gacaca courts will take place by election in
communities. However, mechanisms must be found to ensure that both Hutus
and Tutsis are elected to sit on the gacacatribunals to ensure that both communities
feel their interests are represented. The United Nations Basic Principles on the
Independence of the Judiciary,105 while they are not binding principles of law,
should be borne in mind here. A lack of adequate representation for either
group could be a violation of Principle 10 which states:
"... In the selection of judges, there shall be no discriminationagainst a person
on the ground of race, colour, sex, religion, political or other opinion, national or
social origin, property,birth or status, except that a requirement,that a candidate
for judicial office must be a national of the country concerned, shall not be
considered discriminatory."
Already, Alison Des Forges has commented that the gacaca "outcome depends
on balance of power in the area". In this regard the OAU notes:
103 See
above, n. 3.
104
See above, n. 3.
105
Basic Principleson the Independence of the Judiciary, UN GAOR 40/146 of 13 December,
1985.
"Fears have also been expressed that the proposed system may be used to settle
personal scores through some form of collusion between defendants and local
inhabitants,especiallyin rural areas with large Hutu majorities."'06
If those who appear before the courts see or believe that the outcome of a
hearing is determined by the area in which the trial is heard, the process will
lose credibility and legitimacy very quickly and be a source of tension and
conflict for the future. The responsibility of sitting on a gacaca court will be
considerable because judges will be subjected to political and psychological
pressure,'07 not only from the state but also from the community in which they
live. This pressure is already being brought to bear on the judges of the ordinary
courts and is likely to be more serious in the gacaca, in violation of Principle 2
of the Basic Principles on the Independence of theJudiciaryl08 which states that:
"the judiciary shall decide matters before them impartially,on the basis of facts
and in accordance with the law, without any restrictions,improper influences,
inducements,pressures,threatsor interferences,direct or indirect,from any quarter
or for any reason."
Another area of concern is related to expertise and competence. Judges will
be expected to understand complex legal issues, and they will be expected,
without the benefit of legal training or legal argument, to distinguish between
genuine and false testimonies. In addition, they will have to deal with the
problems caused by the delays in the matters coming to trial, and the poor
quality of dockets and witness statements, where these exist. In this regard
Drumbl states:
"It might very well be that, over the years, many people have difficultiesseparating
what they actuallysaw with what they heard or otherwisebecame acquaintedwith
through hearsay. Given that hardly anyone is cross-examinedand that, as time
goes by, many accusers become incapacitated or die, there is no mechanism to
ensure the accuracyof their accusations.In the end, it is Rwanda as a whole which
loses out as historicalfacts become blurred."'09
It is a matter of concern that untrained judges will be expected to hand down
heavy sentences, including life imprisonment. Basic Principle 1010 states:
"personsselected forjudicial office shall be individualsof integrityand ability with
appropriatetrainingor qualificationsin law."
These issues are important in the Rwandan context as there has been:
"considerabledebate and even controversy,especiallyabout the failure to provide
for any professionaldefence for the accused, the expected lack of or insufficient
training of the judges, the statutory disqualificationof most of the literate and
influentialmembers of the communitiesby virtue of their professionalposition, the
consequentlygreaterpotential susceptibilityof the judges to outside pressures,the
risk of the mob syndrome, and even the potentially excessive weight granted to
the dossiersfrom the parquetsin the absence of professionaldefenders."
A number of people who could be expected to constitute the more educated,
intelligent and potentially more able stratum of society have been excluded from
election as members of the bench of the cell "gacacajurisdiction" or the sector,
106 OAU
report ch. 18.46.
107 See
above, n. 4.
108See above, n. 105.
109Drumbl, see
above, n. 29, at 546, 606.
110 See
above, n. 105.
Il
Report of Special RepresentativeMoussalli, see above, n. 62.
commune and prefecture general assembly: heads of government administrations

whether centralized or decentralized with the cell level; politically active persons;
active military personnel; active members of the national police or the local
defence force; career magistrates, unless they are used as legal advisers; members
of the managing bodies of political parties, religious sects, or non-governmental
organizations. The criteria for being part of the process are simply that a
person must be 21 years old, Rwandan and "honourable". In this context, an
"honourable" person is one who: (a) has good conduct, a good life, and good
moral standards; (b) always tells the truth; (c) is honest; (d) is characterized by a
spirit of sharing the floor; (e) has not received a sentence, which has the authority
of resjudicata,of at least 6 months in prison; (f) has not participated in offences
that constitute the crime of genocide or crimes against humanity; (g) is exempt
from a spirit of sectarianism and discrimination. At face value, these criteria
seem reasonable, but many articulate, critical, enquiring and "honourable"
members of the society are excluded from appointment. Clauses (d) and (g) seem
to limit critical engagement and ensure that people elected will go along with
the majority and not be too probing. Similarly, judges may be removed from
the gacacaif their participation is divisive or if they perform "an action incompatible
with the quality of an honourable person". This will constrain objections from
people who do not believe in simply going along with "the mob".
The prospect of courts under the control of under-educated, non-legally
trained judges is even more problematic when the possible role of the conseillers
juridiques(legal advisers) is examined. These advisers could play a useful role if
they are ethical. However, their legal knowledge may be so much better than
the presiding officers that they could control the whole process. Amnesty
International has noted that:
"they may be able to exert considerableinfluence, as the lay judges in the gacaca
jurisdictionswould find it difficultto challenge or reject guidance from advisersin
the Supreme Court who have a legal professionalbackground.""2
If the gacaca court process is to work, the court's members must come from all
groups-men and women, Hutu and Tutsi-and the process must be seen to
be fair, unbiased and inclusive. Unless everyone in a community buys into the
process and participates wholeheartedly, the work of the structure will be doomed
from the outset. Individuals who serve on the gacaca must command the respect
and support of the people in general, and those appearing before the tribunal
must believe they will receive a fair hearing.
EXPEDIENCYAND EFFICIENCYVERSUSDUE PROCESSAND FAIRNESS
Have the gacacaproposals prioritized expediency at the expense of due process

and fairness? Does this apparently quicker and more efficient process fall foul
of a range of fair trial rights accepted internationally and in Africa, standards
which Rwanda has undertaken to meet? Michel Moussalli has noted "the most
widely voiced concern is that due legal process will be compromised and the
rights of the defendants ignored". The OAU report says "speed and efficiency,
important as they are, must also be accompanied by fairness. Basic human
rights must not be sacrificed either to productivity or local participation"."3 A
112
See above, n. 4.
113
OAU 2000 ch. 18.49.
fundamental question is whether the procedures laid down for the gacaca will
ensure that they exercise their vast powers in a competent, independent, unbiased
way.
Some might argue that, given the African context, the notion of fair trial
rights should not be given the same degree of protection in Rwanda. However,
the Dakar Declaration, adopted on 11 September, 1999, following the Seminar
on the Right to Fair Trial in Africa, organized by the African Commission on
Human and Peoples' Rights states that:
"It is recognized that traditional courts are capable of playing a role in the
achievementof peacefulsocietiesand exerciseauthorityover a significantproportion
of the population of African countries. However, these courts also have serious
shortcomings,which result in many instances in a denial of fair trial. Traditional
courts are not exempt from the provisions of the African Charter relating to fair
trial."
Avoiding contentious procedures at all costs is in keeping with the traditional

African conception of law. There is a preference for trying to settle disputes
through reconciliation, discussion and consensus, so that there are no winners
or losers. Trials are seldom used because the way courts deal with disputes
creates further animosity rather than peaceful resolution.
Various international instruments demand independence and impartiality.
The Universal Declaration of Human Rights states:
"Everyoneis entitled in full equalityto a fair and public hearing by an independent

and impartial tribunal, in the determinationof his rights and obligations and of
any criminal charge against him.""14
Similar provisions are found in articles 8(1) and 27(2) of the American Convention
on Human Rights"5 and article 6(1) of the European Convention for the
Protection of Human Rights and Fundamental Freedoms.16 The right to a fair
trial is also found in article 14(1) of the International Covenant on Civil and
Political Rights, which is binding on Rwanda since it ratified this instrument.
The issue of independence and impartiality is seen to be so basic that the Human
Rights Committee, the adjudicating body on the International Covenant on
Civil and Political Rights, has found that it "is an absolute right that may suffer
no exception"."7 It could, however, be argued that article 4 of the International
Covenant on Civil and Political Rights has relevance in Rwanda now. Article 4
states that:
"intime of public emergencywhich threatensthe life of the nation and the existence
of which is officiallyproclaimed, the States Parties to the present Covenant may
take measures derogating from their obligations under the present Covenant to
the extent strictlyrequiredby the exigencies of the situation."
It may be argued that in 1994 these circumstances existed in Rwanda, but this
is certainly no longer the case some seven years after the genocide.
114 Article 10.

15 American Convention on Human Rights, 22 November, 1969, O.A.S. T.S. No. 36 at 1,
O.A.S. Doc OEA/ser. L/V/11. 23 doc. 21 rev. 6 (entered into force 8 July, 1978), reprinted in 9
I.L.M. 99 (1970).
116
European Convention for the Protection of Human Rights and Fundamental Freedoms, 4
November, 1950, 213 UNTS 221, 1953 Great Britain TS no. 71 (Cmd. 8969) (entered into force 3
September, 1953).
17 Gonzalez
delRio v. PeruComm.Nos. 263/1987 (28 October, 1992) U.N. Doc A/48/40 (1993).
Also relevant for Rwanda, as it has ratified its accession to this regional human
rights instrument, are articles 7(1) and 26 of the African Charter on Human
and Peoples' Rights."8 Article 7(1) states:
"Everyindividualshall have the right to have his cause heard. This compromises:
(a) the right to an appeal to competent national organs against acts of violating his
fundamentalrightsas recognizedand guaranteedby conventions,laws, regulations
and customs in force; (b) the right to be presumed innocent until proved guilty by
a competent court or tribunal;(c) the right to defence, including the right to be
defended by counsel of his choice; (d) the right to be tried within a reasonable
time by an impartialcourt or tribunal."
Article 26 states:
"States parties to the present Charter shall have the duty to guarantee the
independence of the Courts and shall allow the establishmentand improvement
of appropriatenational institutionsentrusted with the promotion and protection
of the rights and freedoms guaranteedby the present Charter."
The African Charter permits no derogation from this, or any other provision.
Against this background, there are various problems with the gacaca courts.
One problem relates to the rights of the accused in relation to a defence and
the ability to be represented. The only article dealing with the right to a defence
is article 65(5) of the gacaca law which states that: "[t]he Chairperson of the
session invites each defendant to speak". No provision permits the accused to
have representation. This clearly violates Rwanda's international obligations.
There are also problems with fairness in the gacaca appeal process. Amnesty
International has found:
"If the gacacajurisdictionsare set up as outlined in the draft law, the trials would
clearly fail to meet basic internationalstandardsfor fair trial.""9
While it would be useful to use the gacaca as a mechanism to play a part in
discovering the truth of what happened in all communities in Rwanda, it has
already been pointed out that there are numerous problems with the law as it
stands, the way the courts will operate, and the exigencies of successfully setting
up so many courts in such a short time. The government should establish two
or three pilot gacaca tribunals to see how the process works. In this vein the
Special Representative has noted that much can be done to minimize the risks.
He recommends, in particular, that gacaca be launched in a gradual manner so
as to test the practicalities. If these pilots are successful, the government could
allow an increasing number of communesor secteursto have gacaca. Eventually the
system could be expanded to all parts of the country, possibly over a five-year
period, but for a much narrower purpose than is presently envisaged.
A TRUTH AND RECONCILIATION COMMISSION120
There are various truth and reconciliation models. The model implemented
in South Africa, in addition to dealing with issues of truth and reconciliation,
118 The African Charteron Human and

Peoples' Rights (OAU Doc, 7 CAB/LEG/67/3/Rev 5)
was adopted unanimouslyas a regional treaty by the Organisationof African Unity (OAU) in June
1981 and the Charter itself entered into force on 21 October, 1986.
19 Above, n. 4.
120See furtherJ. Sarkin,"The Trials and Tribulationsof South Africa'sTruth and Reconciliation
Commission", (1996) 12 SouthAfricanJournalon HumanRights617; J. Sarkin, "The Truth and
Reconciliation Commission in South Africa",(1997) Commonwealth LawBulletin528; J. Sarkin, "The
Development of a Human Rights Culture in South Africa",(1998) 20(3) HumanRightsQuarterly 628;
J. Sarkin, "The Necessity and Challenges of Establishinga Truth and Reconciliation Commission
also establisheda process to grant amnesty to individual offenders.In terms of

the legislation,perpetratorshad to apply for amnesty and their applicationshad
to comply with variouscriteria.These criteriaincludedproving a politicalmotive
and revealing the complete truth about the crime for which they were applying
for amnesty. However, such an institutionneed not necessarilyreplace criminal
prosecutionsor grant amnesties.In fact, internationallaw prohibitsthe granting
of amnesty for certain gross violations of human rights. However, such an
institutioncould play a role, together with the criminaljustice system, in truth
discovery.
Truth and reconciliationcommissionscreate records of human rights abuses
that are as complete as possible. They often record the nature and extent of the
crimes and a full record of the names and fates of the victims. The identities of
those who gave the orders and those who executed them have been included in
some reports,but othershave omitted the names of perpetratorsfearingvigilante
justice. Some commissions have covered very short periods while others have
covered much longer, but still well-defined,periods. A truth and reconciliation
commission can be set up in a variety of ways. Tailoring the commission's
mandate and powers to both the country'scurrentsituation,as well as its history,
providesthe best chance for success.A truth and reconciliationcommission can
facilitate a national catharsis.'21Should such a commission be successfulin its
work, future generationswill be served by the knowledge that the record of past
abusesis as complete as it can be. The hope is that such a record, in combination
with the recommendationsmade by the commission,will ensurethat such human
rightsviolationsdo not take place in the future and also furtherthe development
of a human rights culture in the society.
A properly constituted, totally independent, non-government appointed
commissionin Rwandawould generatepublic awarenessof what reallyhappened
during the genocide. In the absence of the processes envisaged in the workings
of such an institution,anger, resentment,hatred, and revenge might be the order
of the day. Only by publicly and collectively acknowledgingthe horror of past
human rights violations will it be possible for the country to establish the rule
of law and a culture of, and respect for, human rights. Should a truth and
reconciliationcommissionbe established,victims across the spectrumwill have
a credible and legitimate forum through which to reclaim their human worth
and dignity;perpetrators,irrespectiveof persuasionand motivation, will have a
channel through which to expiate their guilt. Failure to establish this kind of
process disregardsthe rights and views of victims, denies the need for a healing
process, prevents recovery of the past, imagines that forgivenesscan take place
withoutfull knowledgeof whom and what to forgive,and fails to establishhuman
rights values as the core standardfor the future.
in Rwanda", (1999) 21(3) HumanRightsQuarterly 767; J. Sarkin, "Preconditionsand Processes for

Establishinga Truth and Reconciliation Commission in Rwanda: The Possible Interim Role of
Gacaca Community Courts", (1999) Law Democracy and Development 223; J. Sarkin, "Transitional
Justice and the ProsecutionModel: The Experienceof Ethiopia",(1999) LawDemocracy andDevelopment
253; J. Sarkin, "PromotingJustice,Truth and Reconciliation in Transitional Societies: Evaluating
Rwanda'sApproach in the New Millenniumof Using Community-BasedGacaca Tribunalsto Deal
LawForum112;J. Sarkin, "Dealing With Past Human Rights
with the Past", (2000) 2(2) International
Abuses and PromotingReconciliationin a FutureDemocratic Burma",(December 2000) LegalIssues
onBurma1.
121
J. Sarkin,"The Development of a Human Rights Culturein South Africa",(1998) 20(3) Human
RightsQuarterly 628.
A truth and reconciliation commission could develop a complete picture of

the causes, nature, and extent of gross violations of human rights and, importantly,
make this known. It could also provide a mechanism that would facilitate
confession of crimes and ease the pressures on the already weak criminal justice
system. If the route of granting amnesty is chosen, it can assist in this process
or suggest sentences for persons who make full disclosure of all the relevant facts
relating to acts associated with a political objective. Such a truth and reconciliation
commission should establish and make known the fate or whereabouts of victims
and restore the human and civil dignity of survivors of abuse by granting them
an opportunity to relate their own accounts of the violations they suffered. By
recognizing and publicizing the victim's story, the inherent worth and dignity
of the person is acknowledged. In addition, the commission can recommend
such reparation measures as are possible in the circumstances. A commission can
also compile a public report detailing its activities and findings and recommend
measures to prevent future violations of human rights. Several positive
consequences would flow from this. First, it would deter government authorities
from committing abuses themselves because they will have to respect the rule
of law, since mechanisms to ensure accountability will be in place. It would
demystify the past and expose the previous regime's brutality and its inability to
govern fairly. It would imbue the new government with respectability, especially
if the planners of the genocide were prosecuted. It would be sending the clear
message that no one is above the law, and that ethical values may not be
discarded in the name of a political goal. Finally, it would legitimize the new
government's actions because it upholds the rule of law. A possible danger, and
something that should be proactively addressed, is the fact that a truth and
reconciliation commission holds the potential to open up old wounds and renew
resentment and hostility against the perpetrators of abuses. Therefore, careful
planning and preparation is crucial to ensure that the process achieves its aims
and objectives. If this is not done, revenge killings may be committed.
It is, of course, vital that such a process is credible and legitimate. Unless this
is the case, it will not be accepted by all parties and whatever result it arrives
at will be questioned. In other words, it is crucial to ensure that the commission
has political legitimacy. In the absence of such legitimacy, whatever record of
past human rights abuses the commission produces will be contested and
reconciliation will remain a vain hope. Various factors are the key to establishing
a successful process. For example, the choice of the time-period over which
human rights violations are to be examined will often determine the acceptability
of the process. In order to promote reconciliation, it is vital to ensure that the
process has political legitimacy. It is vital to the success of the project that all
sectors of the population buy into the process. If the process is not seen to be
independent of the government, it will affect the objectivity of the process, at
least as far as the public perception is concerned. If such a process is to enjoy
legitimacy and fulfil its function of enabling reconstruction, rehabilitation and
reconciliation, its establishment must be informed by an understanding of the
particularities of the history and transition of the country within which it is to
operate.
The extent to which a process is established by the new order, in co-operation
with those who were vanquished, plays an important part in determining whether
such a process can assist in national reconciliation. On the other hand, the
Vol. 45. No. 2 Gacaca Courtsin Rwanda 169
extent of the involvement of the vanquished perpetrators also has a bearing on

the acceptance of that institution by those who suffered human rights abuses.
Great sensitivity is called for in this regard. Even though there cannot be one
final "objective truth", it is critical that the version of "truth" arrived at by the
commission embraces the experience of all. Unless the people feel that they have
been a part of the process of decision making, they will doubt the integrity and
motivations of those setting up the commission and those involved in its work.
Legitimacy for a commission means that the process is accepted as an objective
body capable of finding an unbiased "truth". This perception is generally achieved
by having a well-balanced commission of highly respected people. A process is
perceived to be well balanced when the individuals serving on it are from a
variety of ethnic and political backgrounds and constituencies. The key to
legitimacy is that the enquiry must not only be unbiased and non-partisan, but
be perceived in this way by the whole population. To attain legitimacy, an
enquiry must be an officially designated, non-partisan entity. This means that
the process cannot be controlled or influenced by the government, or even
appear to be under the government's control or influence. To ensure that this
is the case, the very creation and set-up of the process must be unbiased and,
most importantly, perceived as such by the country's nationals. These are all
extremely relevant questions for societies such as Rwanda that have a history of
major human rights abuses.
DEMOCRATIZATION
The issue of democratization is one that Rwanda cannot avoid. Rwanda

cannot have a transition and deal with the past in a way that has long-term
positive effects without moving to a democracy. According to Michel Moussalli
"the building of democracy, in Rwanda as elsewhere, is inseparable from
the fundamental objective of promoting reconciliation and protecting human
rights".'22The OAU notes "it is not realistic to expect reconciliation so long as
an unelected minority rules. Majority rule must be respected. No majority will
forever accept minority rule".'23
Since the Hutu government was overthrown in 1994, Hutus have been
excluded from positions of power, although the government states that there are
only Rwandans, no Hutus or Tutsis. Hutus comprise 85 per cent of the population
and need to be incorporated politically in some way. Although the new Tutsi-
dominated government in 1994 stated that it was a transitional government and
that elections would be held in 1999, in June 1999, a month before the elections
were due to be held, the government prolonged the transitional phase to 2003.
Although local government elections were held in 1999 as a move to begin the
democratization process, party politics and campaigning were forbidden. In
addition, these elections were not seen to be free and fair. Controversy has also
surrounded the elections in March 2001.124
122
123
Report of Special RepresentativeMoussalli, see above, n. 62.
OAU 2000 ch. 23.70.
124 Human
Rights Watch has reportedthat while hundreds of thousands of Rwandans voted for
local officialsin these elections,many had no meaningfulchoice at the polls. The organizationstated
"This election has been flawed from the beginning, and those flaws far outweigh the few election-
day irregularitiesthat have been reported". See Human Rights Watch Report "No Contest in
Rwandan Elections Many Local OfficialsRun Unopposed", 9 March, 2001.
Only by means of democratizationcan all of the essential elements for an

effective system of transitionaljustice be met. Mahmoud Mamdani has said "to
break out of this notion of the state of a representationof a permanentlydefined
majorityis the challenge that Rwanda faces today" and "how to move from an
order based on conquest to one based on consent is the challenge for Rwanda
today".125For the transitionin Rwanda to be successful,a structurebased on
some system of power sharing must be found. This has to be done on a basis
of negotiation and agreement involving all parties. However, this will not be
achieved unless there is a generally accepted view that reconciliation ought to
be achieved. A comprehensiveeducation campaign is needed to eliminate the
ideology of genocide and the collective responsibilityplaced upon the Hutu by
the Tutsi. Critically,theremustbe a systematicand all-encompassinginvestigation
into the truth of the events leading up to the genocide and the genocide itself.
The objective truth must then be made public to the victims, their families, and
all of society. It is only with a complete knowledge of the truth that Rwanda
can step toward reconciliation.Full and complete participationby all sectors of
society is therefore necessary.Rwandans need to come to terms with their past
and build their country into a united one. Unless all citizens in Rwanda have a
governmentwhich they believerepresentsthem, instabilityand strifewill continue.
Paving the way to an inclusive democracy will be a critical step in dealing with
the past and halting the continuing violence and division that haunts Rwanda.
CONCLUSION
The use of the gacacatribunalsin their present form is problematic and, even
if revised, can only be an interim measure. Will it help to alleviate the pressure
on the courts?Possibly.Will it lessen the burdens on the prisons?Probablynot.
The government should not change the nature of the gacacaby making them
play a role that they have not traditionallyplayed. Using them in the way
envisaged by the new legislation, untried and untested, will most probably
undermine any role they are able to play in the future. If the Rwandan
government wishes to truly and adequately address the massive human rights
violations of the genocide, it must go beyond mere criminal trials. Despite the
existence of the UN Security Council's war crimes tribunal, the immense task
of trying all the accused in prison is too great for the system to bear. The
deficiencies of the Rwandan judiciary are a major concern. Relying on the
Rwandan judicial system or even the international tribunal to achieve
reconciliationand breakthe country'slengthy cycle of violence will prove fruitless.
In any case, prosecutionsare not the panacea to deal with the problems of a
country'spoliticalpast because they give rise to new problems or exacerbate old
ones.
Political and practicalconsiderations,such as resource constraints,must lead
to the conclusion that not everyone can or should be prosecuted. In any case,
does internationallaw demand that every person involved be prosecuted?Could
the draftersof the genocide convention have envisaged an absolute compulsion
to prosecute hundreds of thousands of individuals?Additionally, article 6(5) of
125 M.
Mamdani, "From Conquest to Consent as the Basis of State Formation: Reflections on
Rwanda", (1996) 216 New LeftReview17.
Optional Protocol II of the Geneva Conventions, which relates to non-

international armed conflict, states that:
"At the end of hostilities, the authorities in power shall endeavour to grant the
broadestpossible amnesty to persons who have participatedin the armed conflict,
or those deprivedof their libertyfor reasons related to the armed conflict, whether
they are interned or detained."
It will, however, be argued that Rwanda does not fall under this provision as it
was not an armed conflict but a genocide. However, others have argued that
the 1994 events present "many examples of a classic civil war"'26 and that "this
is civil unrest between two historically symbiotic groups".'27 A case can certainly
be made for this provision to play some part in Rwanda now. Because Optional
Protocol II does not call for a total or blanket amnesty, perhaps only the architects
or main organizers ought to be prosecuted. This would help to alleviate the
crisis in the prisons and certainly achieve most of the overarching goals that the
trials are now trying to achieve. This strategy would certainly limit the number
of trials that are envisaged and reduce the strain on the criminal justice system.
This would obviously be very controversial in Rwanda, and probably be
unacceptable to the government, but the long-term benefits of pursuing this path
outweigh the pitfalls. The view that not everyone presently being held should
be prosecuted was also presented in the OAU report:
"There is also, however, a practicalcase to make for amnesty. First,what incentive
is there for ex-FAR soldiersand interahamwe to give up the fighting, unless it is the
chance to begin normal life afresh?In South Africa, amnesty became the explicit
price paid to the white establishmentto give up power peacefully;is a comparable
scenario possible for Rwanda? Secondly, there is the more practical question of
the capacity of the justice system ever to try all present suspects, even with the
new gacacatribunals.28
Although amnesty or non-prosecution may not be acceptable to many victims,

it would have the effect of defusing the tensions between Hutu and Tutsi. It is
doubtful that individuals will benefit from trials anyway because they are unlikely
to find out what happened to their families.
Rwanda must start down the road of a national reconciliation process soon.
Unless an independent national process is developed which provides the
opportunity for victims to tell their stories and perpetrators and victims of human
rights violations to converse, Rwandan society will continue to live under the
shadow of division, tension, and violence. A truth commission can analyse various
versions of events and can validate more than one version by accepting differing
testimonies and incorporating all versions into a report that becomes a part of
the country's official history. This process is useful because the society as a whole
is able to listen, absorb, and begin the healing process that leads to reconciliation.
Without such a dialogue, the pain, anger and resentment which arise during a
political transition of this nature may never find a satisfactory outlet. If a way
of releasing this pressure is not found, underlying tensions may ferment for a
period of time until they erupt, leading to renewed social fragmentation and
conflict. Such a truth and reconciliation commission should ensure its work and
its report are comprehensive and public. Because so many of the Rwandan
126
Schabas, above, n. 60, at 523, 525.
127
Drumbl, above, n. 29, at 546-547.
128 OAU 2000 ch. 18.58.
people are both rural and illiterate, in order to reach the widest audience possible,
its report should be broadcast over national radio.
Neither a truth commission nor a process focusing on prosecutions can succeed
in isolation. Using both strategies in combination will have a much better effect.
A truth and reconciliation commission in Rwanda could complement other
initiatives already under way, serving as a forum in which victims can tell of
their suffering, be heard and acknowledged, and so regain their dignity. If it is
a legitimate and impartial body and if its processes facilitate participation by all
so that all Rwandans can discern in the report some acknowledgement of their
particular truths, then catharsis and reconciliation can be the fruits. The ground
is then prepared for the prevention of future abuses and the recognition of the
need for a culture of human rights. Additionally, a truth and reconciliation
commission's process and recommendations should re-establish the rule of law.
The best way to prevent future human rights abuses is by strengthening the rule
of law and the corresponding independent judicial institutions and uncorrupted
governmental bodies.
This suggests that only the main architects and organizers of the genocide
ought to be prosecuted, perhaps 5,000-10,000 individuals. Other processes could
be found to deal with other issues that arise and provide a way of focusing on
a better future for the country. Even if it is decided not to reduce the number
of people facing prosecution, it will be necessary to resolve some of the current
blockages in the criminal justice system. There is no reason why the pace at
which the present system works could not hear more cases quickly and fairly.
In South Africa, for example, about 1,500 magistrates hear about 300,000 cases
per year. The Rwandan criminal justice should be able to deal with more than
the 3,500 cases it currently completes each year. There is no reason why 1,000
prosecutors, judges and magistrates could not be trained within a year to quickly
clear the backlog. The plan for the gacaca courts is likely to see that process last
for at least three years. Many of those in detention have already been incarcerated
for more than six years. The dangers of proceeding along a path fraught with
unfairness and the attendant risk of long-term negative implications should
ensure that a more cautious and fair route at least be investigated. A critical
overarching requirement is the need for real democracy in Rwanda, without
which, whatever path is chosen, the society will be unable to secure long-term
sustainable peace. Dealing with the past is a prerequisite for achieving national
reconciliation, the reconstruction of the political and economic life of the nation,
and the entrenchment of a respect for human rights.

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The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due

THE TENSION BETWEEN JUSTICE AND

* Law Faculty, Universityof the Western Cape, South Africa.

DEALING WITH THE PAST

How DEMOCRACYCOMES TO BE ESTABLISHED

There are three broad types of political transition from an authoritarian

9 See further Carter Center of

extract a promise by the new government not to investigate or prosecute

TRUTH, JUSTICE AND RECONCILIATION

Broadly speaking, options available to a new democratic society include (1)

and reconciliation. The balance19 struck between these goals is determined to a

19 See D. Pankhurst, "Issues of

26See for exampleJ. Malamud-Goti,"TransitionalGovernmentin the Breach:Why Punish State

as in the administration and in the judiciary, added to the current conflict

According to Prunier, at the end of 1996, 15 of the 22 cabinet directors, 16 of

Exclusion from land and enforced relocation to villages is another major

45 J. Lampman,"WomenLead in Effortto Rebuild Rwanda", Christian

about human rightsviolations'.This reflectsthe two chief concerns of donors:first,

Without examining the effect of this process, Human Rights Watch on 16

Another study on the villagization process conducted by a university in the

53 See above, n. 34.

"exemplifiesthe dilemma involved in the pursuit of reconciliationwithoutjustice,

HUMAN RIGHTS IN RWANDA

Amnesty International in a 2000 report noted:

the government, by condoning or doing little to prevent these abuses, exacerbates

"duringthe year, the Governmentbegan to provide to human rightsorganizations,

"thejudiciary is subjectto executive influence and also suffersfrom inefficiency,a

US Departmentof Statein whichit is statedthat,accordingto a

A problematictrend has been to re-arrestafter discharge.Amnesty International

He does, however, note that:

Amnesty International has reported that:

94 See F. Reyntjens, (December 1990) 40 Politique

Conventions and protocols, crimes against humanity as well as other conventions

In terms of planning, logistics, training and uniformity, more than 250,000

commune and prefecture general assembly: heads of government administrations

EXPEDIENCYAND EFFICIENCYVERSUSDUE PROCESSAND FAIRNESS

Have the gacacaproposals prioritized expediency at the expense of due process

Avoiding contentious procedures at all costs is in keeping with the traditional

"Everyoneis entitled in full equalityto a fair and public hearing by an independent

114 Article 10.

118 The African Charteron Human and

also establisheda process to grant amnesty to individual offenders.In terms of

in Rwanda", (1999) 21(3) HumanRightsQuarterly 767; J. Sarkin, "Preconditionsand Processes for

A truth and reconciliation commission could develop a complete picture of

extent of the involvement of the vanquished perpetrators also has a bearing on

The issue of democratization is one that Rwanda cannot avoid. Rwanda

Only by means of democratizationcan all of the essential elements for an

Optional Protocol II of the Geneva Conventions, which relates to non-

Although amnesty or non-prosecution may not be acceptable to many victims,

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