Abstract
This chapter assesses gacaca courts against the background provided by domestic and international norms governing fair trial standards. The question whether gacaca courts provided a fair trial has been answered by investigators in different, sometimes contrasting ways. The concerns expressed by scholars and practitioners regarding the respect by gacaca of key principles of fairness, such as independence of the judges , non-retroactivity of criminal law, the right to defence, double jeopardy and the presumption of innocence, are given wide room. This investigation answers the questions regarding whether gacaca courts respected constitutional and international fair trial standards providing a fair trial in terms of formal justice. To assess gacaca however it is also necessary to answer the question whether these courts, despite formal shortcomings, were able to provide fair trial in substantive terms. The latter aspect is in the spotlight on the next chapters, which analyse the daily practice of gacaca courts and the perceptions of ordinary Rwandans concerning the fairness of the trial before gacaca.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Schabas 2005, pp. 886–887.
- 2.
Haveman and Muleefu 2011, p. 220.
- 3.
For a definition of substantive justice, see note 43 in Chap. 1.
- 4.
See Articles 1 and 6 of The Protocol of Agreement between the Government of Rwanda and the RPF on the rule of law of 18 August 1992, Articles 14 and 17 of The Protocol of Agreement on Miscellaneous Issues and Final Provisions of 3 August 1993, and Constitutional Court, (Judgment of 09 of July 26, 1995).
- 5.
See Haile 2008, p. 21: ‘What is more disturbing about the gacaca process, however, is that while violations of fair trial standards in regular courts occur in spite of the law, the gacaca law institutionalizes such violations in contravention of the Rwandan Constitution, the African [Banjul] Charter on Human and Peoples’ Rights (ACHPR) and other relevant international human rights instruments’.
- 6.
Longman 2006, p. 214.
- 7.
Clark 2010, in particular pp. 154–161.
- 8.
Ingelaere 2016, pp. 5 and 66–67.
- 9.
Human Rights Watch 2011, p. 138.
- 10.
See Schabas 2002, p. 538: ‘Like the International Covenant on Civil and Political Rights, the Convention for the Prevention and Punishment of the Crime of Genocide does not make the obligation to prosecute subject to available resources’.
- 11.
The Dakar Declaration was adopted on 11 September 1999 following a seminar on the Right to a Fair Trial in Africa organised by the African Commission on Human and Peoples’ Rights. See Dakar Resolution on Fair Trial and Judicial Assistance in Africa, African Commission on Human and Peoples’ Rights (1 September 1999).
- 12.
See Article 7.2 ACHPR: ‘No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender’.
- 13.
I rely on the translation from French into English of Fierens 2005, p. 906.
- 14.
See Article 20 of Rwanda’s Constitution: ‘Nobody shall be punished for acts or omissions that did not constitute an offence under national or international law at the time of commission or omission. Neither shall any person be punished with a penalty which is heavier than the one that was applicable under the law at the time when the offence was committed’.
- 15.
For a legal analysis of the instruments binding Rwanda to the due process of law principle see also Fierens 2005, p. 896: ‘Customary international law could have been invoked to justify the prohibition on crimes against humanity, although this argument prompts discussions over the existence of such customary nature. The prohibition was established in 1994, though these crimes were only included twice, in the Charters of the International Military Tribunals at Nuremberg and for the Far East’.
- 16.
Ibid., p. 907.
- 17.
See Article 1 Organic Law 8/1996.
- 18.
See Article 14 of Organic Law 8/1996 and 40/2000.
- 19.
See Fierens 2005, p. 907: ‘The reasoning stood as follows: the 1977 Rwandan Penal Code incriminated acts equivalent to genocide or crimes against humanity, but under different appellations. Thus, it was put forward that punishing such acts with the sentences provided for in the code would suffice to counter retroactivity. The argument’s weakness is immediately apparent. Applying penalties from the Penal Code to acts prohibited elsewhere than in the Code bears more resemblance to legalistic block-building than respect for the principle of non-retroactivity. A genocide or crime against humanity does not contain the same acts as those laid out in the Penal Code. The overarching social necessity of going beyond the traditional incriminations of murder, assault and battery or rape is one such clue of this. The point, as it was in 1945, is to adopt different prohibitions precisely because what happened went beyond the penal code. Furthermore, the international prohibition, which purports to express the exceptional gravity, even supreme gravity, of certain crimes, calls on judges to inflict particularly severe penalties, and thus engenders retroactive effects’.
- 20.
‘Organic Law no. 40/2000 of 26 January 2001, establishing the creation of gacaca courts, also contained a double prohibition, phrased in rather awkward terms inherited from the Organic Law of 1996. The ambiguity stems from the unfortunate juxtaposition of para 1 and lit. b, which reads: ‘acts qualified and punished by the penal code and which constitute … offences aimed at in the penal code…”. See Fierens 2005, p. 907.
- 21.
For a contrary opinion, see Bornkamm 2012, p. 51.
- 22.
See Organic Law 40/2000, preamble: ‘Considering that the committed acts are both constituting offences provided for and punished by the Penal Code, and crimes of genocide or crimes against humanity (…) Considering, consequently, that prosecutions must be based on the penal code of Rwanda’.
- 23.
Ibid.: ‘Considering that the crime of genocide and crimes against humanity are provided for by the International Convention of December 9, 1948, relating to repression and punishment of the crime of genocide; Considering the Convention of November 26, 1968 on imprescriptibility of war crimes and crimes against Humanity’.
- 24.
See Haile 2008, p. 22.
- 25.
On this point, see the amendments to the legislation allowing gacaca courts to try category 1 perpetrators adopted through Organic Law 10/2007 and 13/2008.
- 26.
This offence has been newly introduced and added to the first category of offences, the most serious ones, in the 2004 Gacaca Law, (see Article 51(6)).
- 27.
See Judgment of the International Military Tribunal for the Trial German Major War Criminals: Nuremberg, 14 November 1945–1 October 1946, Vol. 1: ‘It is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished’, available at http://avalon.law.yale.edu/imt/judlawch.asp. Last accessed 4 February 2018.
- 28.
Article 14 ICCPR in particular affirms that: 1. ‘All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. 6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country’.
- 29.
- 30.
GC 32 (2007) provides a general overview of Article 14 at para 3: ‘Article 14 is of a particularly complex nature, combining various guarantees with different scopes of application. The first sentence of para 1 sets out a general guarantee of equality before courts and tribunals that applies regardless of the nature of proceedings before such bodies. The second sentence of the same paragraph entitles individuals to a fair and public hearing by a competent, independent and impartial tribunal established by law, if they face any criminal charges or if their rights and obligations are determined in a suit at law. In such proceedings the media and the public may be excluded from the hearing only in the cases specified in the third sentence of para 1. Paragraphs 2–5 of the article contain procedural guarantees available to persons charged with a criminal offence. Paragraph 6 secures a substantive right to compensation in cases of miscarriage of justice in criminal cases. Paragraph 7 prohibits double jeopardy and thus guarantees a substantive freedom, namely the right to remain free from being tried or punished again for an offence for which an individual has already been finally convicted or acquitted. States parties to the Covenant, in their reports, should clearly distinguish between these different aspects of the right to a fair trial’.
- 31.
See HRC General Comment 13 (1984), para 5: ‘Paragraph 3 of the article elaborates on the requirements of a “fair hearing” in regard to the determination of criminal charges. However, the requirements of para 3 are minimum guarantees, the observance of which is not always sufficient to ensure the fairness of a hearing as required by para 1’.
- 32.
See HRC General Comment 32, para 2.
- 33.
Ibid., para 4.
- 34.
On this point, see General Comment 32 (2007) and General comment, No. 24 (1994) on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under Article 41 of the Covenant, para 8.
- 35.
See General Comment 32 (2007), para 8.
- 36.
See Article 10 of the UDHR: ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charges against him.’ See also Article 7 UDHR: ‘All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination’.
- 37.
Article 3 of the ICCPR affirms that: ‘Every individual shall be equal before the law. 2. Every individual shall be entitled to equal protection of the law’.
- 38.
See General Comment 32 (2007), para 7; see also Communication No. 1015/2001, Perterer v. Austria, para 9.2 (disciplinary proceedings against a civil servant); Communication No. 961/2000, Everett v. Spain, para 6.4 (extradition).
- 39.
See General Comment 32 (2007), para 9.
- 40.
See General Comment 32 (2007), para 13.
- 41.
See General Comment 32, para 14.
- 42.
See Haile 2008, pp. 28–29 ‘The maintenance of two separate systems of justice on the basis of a rather arbitrary classification violates the first aspect of the principle. In effect, the above classification leads to an illogical situation where a person who is accused of stealing a cow from a Tutsi or a Hutu moderate during the genocide will be tried before gacaca tribunals, whereas a member of the Tutsi-dominated RPF who had killed any number of people will not. This has significant discriminatory effect because as discussed earlier, those who stand accused before gacaca tribunals do not have any recourse to regular courts and are denied many of the fair trial guarantees reviewed in this section. They are required, in certain cases, to respond to criminal files or “dossiers” prepared by trained prosecutors. Defendants do not have sufficient time and resources to prepare their defense whereas the prosecution and the accusers can rely on the exculpatory information compiled by government-supported institutions, including the tribunals themselves and the technical advice of the National Service (…) In sum, there are two main points that make the above practice deeply problematic. In the first place, even if all those who are to be tried before the gacaca tribunals are said to have committed genocide pursuant to the internationally accepted definition of the term, there is no valid rationale for selectively denying them access to the regular courts. Second, the official distinction between “genocide” and “revenge crimes”, does not justify the discrimination in respect of access to the regular courts because it is not based on any objective determination of the conducts constituting such crime’.
- 43.
See Discours de Paul Kagame à l’occasion du lancement officiel des travaux des juridictions gacaca, le 18 juin 2002, Klaas de Jonge (April–June 2002). The gacaca research project in Rwanda. An in-depth field study concerning gacaca jurisdictions and Community Service, Report III, Kigali, Penal Reform International. The Rwandan Justice Minister repeated the same view when asked why crimes committed by RPF are not subject to gacaca. Rwandan Minister of Justice, Jean de Dieu Mucyo, in Exclusive Interview: Rwanda Pushes Ahead with Gacaca Tribunals, Foundation Hirondelle, Open Document, 6 December 2002.
- 44.
See Article 26 of the Power-Sharing Protocol between the Rwandan Republic and the RPF, signed in Arusha on January 9, 1993, which before the enactment of the 2003 Constitution was part of the post-genocide constitutional framework: ‘Les Jurisdictions ordinaries suivantes sont reconnues: les tribunaux de canton, les tribunaux de première instance, les Cours d’appel et la Cour Suprême. Les jurisdictions militaries suivantes sont également reconnues: les conseiles de guerre et la Cour Militaire. La loi peut créer d’autres jurisdictions spécialisées. Toutefois, il ne peut être créé de jurisdictions d’exception’.
- 45.
See Fierens 2005, p. 905, who states that the term ‘special’ referred to courts ‘is a highly ambiguous term, since “special courts” could also refer to courts specialized in certain proceedings, such as military tribunals or juvenile courts, and their institution is not currently in question. It seems preferable to use the terms “extraordinary courts” for courts whose creation is prohibited by classical democratic constitutions’.
- 46.
Ibid. See also Haile 2008, p. 23.
- 47.
See General Comment 13 (1984), para 4: ‘The provisions of Article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialized. The Committee notes the existence, in many countries, of military or special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in Article 14 (…) In some countries such military and special courts do not afford the strict guarantees of the proper administration of justice in accordance with the requirements of Article 14 which are essential for the effective protection of human rights. If States parties decide in circumstances of a public emergency as contemplated by Article 4 to derogate from normal procedures required under Article 14, they should ensure that such derogations do not exceed those strictly required by the exigencies of the actual situation and respect the other conditions in para 1 of Article 14’.
- 48.
- 49.
See Article 7.1 ACHPR.
- 50.
On this point, see Haile 2008, p. 23, referring also to Malawi African Association et al v. Mauritania, Communication Nos. 54/91, 61/91, 98/93, 164/97-196/97, 210/98, 11 May 2000, paras 99–100, Institut pour les droits humains et le développement (Banjul, Gambie), Compilation des décisions sur les communications de la Commission africaine des droits de l’Homme et des peuples. Extraits des rapports d’activité 1994–2001, (Banjul: Institut pour les Droits Human et le Development, 2002).
- 51.
See International PEN, Constitutional Rights Project, and Civil Liberties Organization Interights (on behalf of Ken Saro-Wiwa Jr. et al.) v. Nigeria, Comm. Nos. 137/94, 139/94, 154/96 and 161/97, para 86, Compilation des Decisions, p. 247.
- 52.
See Haile 2008, p. 23.
- 53.
Ibid.
- 54.
Ibid.: ‘First, the law establishing gacaca jurisdictions contradicts every provision of the new Constitution guaranteeing due process and fair trial (…) To the extent this is the case, the recognition of the gacaca courts under Articles 143 and 152 of the new Constitution does not make them immune to the unconstitutionality challenges based on those other provisions of the Constitution’.
- 55.
On this point, see Long et al. 1999, p. 596.
- 56.
See Fierens 2005, p. 905.
- 57.
Ideology of genocide consists in ‘behaviour, a way of speaking, written documents and any other actions meant to wipe out human beings on the basis of their ethnic group, origin, nationality, region, colour of skin, physical traits, sex, language, religion or political opinions’; see Article 3 of Organic Law N° 10/2007 of 01/03/2007.
- 58.
See Articles 7(1) and 26 of the African [Banjul] Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5, entered into force Oct. 21, 1986, Articles 14(1) and 5 of the International Covenant on Civil and Political Rights, G.A. RES. 2200A (XXI), 1966 and Article 10 of the Universal Declaration of Human Rights, G.A. Res. 217A (III), (1948).
- 59.
See Article 10 of the Basic Principles on the Independence of the Judiciary, UN Congress on the Prevention of Crime and the Treatment of Offenders 1985.
- 60.
Comm. Nos. 48/90, 50/91, 52/91, 89/93, Compilation des decisions, pp. 358–59, paras 61 and 62.
- 61.
Haile 2008, p. 24.
- 62.
On this point, see Comm. no. 60/91, Id., Compilation des decisions, p. 198, para 14.
- 63.
See Haile 2008, p. 24.
- 64.
Ibid.
- 65.
Ibid. Dealing with the revolutionary courts established in Sandinista Nicaragua, the Inter-American Commission held that it amounted to a violation of the Article 8.1 of IACHR the creation of tribunals that made defendants liable for ‘legal judgment of people, some of whom at least, were not lawyers; the judicial decision of people who were not judges; the verdict of political enemies and the judgment of people, influenced by the psychology of their victory, who were more inclined to be severe rather than fair’. On this point, see Inter-American Commission on Human Rights, Reports on the situation of Human Rights in the Republic of Nicaragua, (1981) OEA/Ser.L/V/II.53 doc. 25 (30 June 1981) and (1982–1983), OEA/Ser.L/V/II.61, Doc. 22 rev. 1, 27 September 1983. Similarly, the commission has cast doubts on the independence and impartiality of judges in military courts in Chile because of their lack of legal competence and training. See Report on the Situation of Human Rights in Chile, OEA/Ser.L.V/II.66, doc 17 at p. 185 (27 September 1985).
- 66.
Articles 34(3), 46, 47 and 59 through 61 of Gacaca Organic Law No. 16/2004.
- 67.
Haile 2008, p. 25 stressing that during the gacaca procedure ‘the criminal files that are presented to such judges, which, when available, comprise the results of the prosecution’s investigations and the charges, are usually prepared by the Prosecution. The judges, whose functions are also ‘supervised and coordinated’ by an executive organ, do not have the necessary background to challenge or make an independent evaluation of the legal and factual issues formulated by learned civil servants’.
- 68.
See Penal Reform International 2010, p. 30.
- 69.
Ibid.
- 70.
Interview with ASF representative, Brussels, 13 March 2016, on file with the author.
- 71.
Penal Reform International 2001, p. 35.
- 72.
Article 49 of Organic Law 16/2004 affirms that ‘Leaders of administrative organs in which Gacaca Court function shall provide them with premises in which they shall perform their duties, as well as sensitize the population for their active participation. They exercise a steady monitoring of the functioning of Gacaca Courts and provide them with necessary materials, in collaboration with the National Service in charge of follow up, supervision and coordination of the activities of Gacaca Courts’.
- 73.
Article 50 of Organic Law 16/2004 affirms that: ‘The National Service in charge of follow up, supervision and coordination of the activities of Gacaca Courts, follows up, supervises and coordinates Gacaca Courts’ activities in the country. It also issues rules and regulations relating to the smooth running of Gacaca Courts, as well as the conduct of persons of integrity, without prejudice to the Gacaca Courts’ ways of trying’.
- 74.
See The New Times, Ombudsman’s report exposes misconduct in Gov’t circles, available at http://www.newtimes.co.rw/section/read/9070/. Last accessed 22 February 2018, quoting the Ombudsman saying that ‘The top four corrupt organs at the grass-root levels were; cell leaders, Gacaca judges, local defence and local mediators’.
- 75.
See Ingelaere 2016, p. 28.
- 76.
Ibid., p. 26.
- 77.
See Longman 2006, p. 215.
- 78.
See Haile 2008, p. 26: ‘The structure of the gacaca process, the absence of any procedural and evidentiary rules, and the fact that the judges lack basic training, tenure or official standing makes the entire process particularly susceptible to mob pressure. (…) It is precisely because mob pressure does not always work in favor of the truth that formal procedures and safeguards have been developed in criminal justice systems. (…) It is also important to note that mob trials may be detrimental to victims and their relatives as they are to the accused. One observer of the pre-gacaca trials noted “(…) some of the witnesses are jeered and laughed at, including a woman who everyone says is crazy from grief because of her dead children’. See also Fierens 2005, p. 913.
- 79.
See Haile 2008, p. 25; in note 113 the author stressed that, ‘The researchers also observe that the judges did not have a clear idea and could not reach a consensus as to how to categorize the conduct in question’.
- 80.
Interviews with ASF representatives, Kigali, November 2009 and Brussels, March 2016, on file with the author. See also the case of Xavier Byumba reported by ASF at www.asf.org.
- 81.
See Human Rights Watch 2000.
- 82.
UN High Commissioner for Refugees 2000.
- 83.
See Economic and Social Council of the UN 1999.
- 84.
See Council Common Position of 18 September 2000 on Rwanda, 2000/558/CFSP Official Journal L236 (20 September 2000). See also, more recently, Council Common Position of 21 October 2002 on Rwanda and repealing Common Position 2001/799/CFSP, Official Journal L285 (23 October 2002), at 3. The Council ‘‘welcomes the official launch of gacaca tribunals and encourages the Government of Rwanda to monitor the forthcoming procedures in close cooperation with national and international non-governmental organization;…encourages the Government of Rwanda and the Supreme Court to ensure that gacaca justice is administered in line with international human rights standards; … also encourages the gacaca courts to establish clemency in general as a basic working principle and to safeguard rights guaranteed by law both to the accused, particularly as regards defence and appeals, and to civil parties’’.
- 85.
See Article 39 Organic Law 16/2004.
- 86.
Fierens 2005, p. 911.
- 87.
On this point see Fierens 2005, p. 912: ‘The fact that interested persons may participate and testify in hearings could somewhat mitigate this serious breach of international standards, but, as such, the right to counsel and, generally, defence rights are not provided for. The right to be defended by an individual wholly distinct from the prosecution, witnesses or judges is nevertheless one of the most universally recognized human rights. Victims cannot be assisted either’.
- 88.
See Achutan (on behalf of Banda) and Amnesty International (on behalf of Orton and Vera Chirwa) v. Malawi, African Commission on Human and Peoples’ Rights, Comm. Nos. 64/92, 68/92, and 78/92 (1995), Compilation des Decisions: 158, para 10.
- 89.
See General Comment 32 (2007), para 30.
- 90.
Article 19 of the Rwandan 2003 Constitution states that ‘Every person accused of a crime shall be presumed innocent until his or her guilt has been conclusively proved in accordance with the law in a public and fair hearing in which all the necessary guarantees for defence have been made available’.
- 91.
Group interview with Rwandan citizens participating in gacaca trials, Butare, 9 October 2009, on file with the author.
- 92.
Gacaca jurisdiction of sector of GAHOGO, Muhanga District, South Province, 01/09/2009, trial of Habimana Laurent, on file with the author.
- 93.
Interviews with representative of ASF, HRW, Liprodhor, Kigali, September–November 2010, on file with the author.
- 94.
Amnesty International 2002. Last accessed 4 February 2018, p. 35: ‘The presumption of guilt on the part of the Rwandese authorities is as much the cause of prolonged detention without trial of tens of thousands of Rwandese as their repeated claim that it is due to the government’s lack of resources. Likewise, the lack of fair trial guarantees in the legislation establishing the gacaca tribunals refers as much to the government’s presumption of detainees’ guilt as it does to the lack of resources to provide a fair trial’.
- 95.
On this point see the ASF communication concerning the case of Theodore Munyangabe.
- 96.
See Amnesty International 2002, pp. 23–24.
- 97.
Ibid., p. 24.
- 98.
See Haile 2008, p. 30: ‘A journalist working for Internews notes that in one of the sessions she observed a detainee was taken back to prison despite the fact that only exculpatory information was obtained from the public. The insistence by the authorities on finding incriminating evidence on people who have been in detention for years and the pressure applied on reluctant villagers to speak only against the detainees suggests an underlying presumption of guilt’.
- 99.
See Amnesty International 2002, p. 24.
- 100.
Haile 2008, p. 31.
- 101.
On this point, see Haveman and Muleefu 2011: ‘Criticism on the fact that the gacaca know trials in absentia do not so much regard the gacaca in particular, as well it regards practice in at least half of the world. A trial and conviction in absentia may be abhorrent for an adversarial educated lawyer, but is accepted in an inquisitorial process model; the person who rejects this has to acknowledge that (s)he not only rejects gacaca but an important part of the world penal systems’.
- 102.
Article 190 of the Rwandan Constitution 2003 states that ‘Upon their publication in the official gazette, international treaties and agreements which have been conclusively adopted in accordance with the provisions of law shall be more binding than organic laws and ordinary laws except in the case of non-compliance by one of parties’.
- 103.
Human Rights Committee General Comment 32 (2017), para 54.
- 104.
General Comment 32 (2017), para 56.
- 105.
Ibid.
- 106.
Human Rights Committee General Comment 32 (2017), para 57.
- 107.
On this point see Article 24 of Organic Law 13/2008.
- 108.
See Human Rights Watch 2011.
- 109.
Fierens 2005, p. 912.
References
Amnesty International (2002) Rwanda: Gacaca: A Question of Justice. https://www.amnesty.org/en/documents/afr47/007/2002/en/. Last accessed 27 February 2018
Bornkamm P (2012) Rwanda’s Gacaca Courts: Between Retribution and Reparation. Oxford University Press, Oxford/New York
Clark P (2010) The Gacaca Courts, Post-genocide Justice and Reconciliation in Rwanda, Justice without Lawyers. Cambridge University Press, Cambridge
Fierens J (2005) Gacaca Courts: Between Fantasy and Reality. 3 Journal of International Criminal Justice
Haile D (2008) Rwanda’s Experiment in People’s Courts (gacaca) and the Tragedy of Unexamined Humanitarianism: A Normative/Ethical Perspective. Institute of Development Policy and Management, University of Antwerp
Haveman RH, Muleefu A (2011) The Fairness of Gacaca. In: Rothe DL, Mullins CW (eds) State Crime: Current Perspectives. New Brunswick: Rutgers University Press, pp 219–230
Human Rights Watch (2000) Rwanda: De la recherche de la sicurit aux abus des droits de I’homme. http://pantheon.hrw.org/legacy/french/reports/rwfr/index.htm. Last accessed 28 February 2018
Human Rights Watch (2011) Justice Compromised the Legacy of Rwanda’s Community-Based Gacaca Courts. https://www.hrw.org/report/2011/05/31/justice-compromised/legacy-rwandas-community-based-gacaca-courts. Last accessed 4 February 2018
Ingelaere B (2016) Inside Rwanda’s Gacaca Courts. The University of Wisconsin Press, Madison
Long M et al (1999) Les grands arrêts de la jurisprudence administrative. Dalloz, Paris
Longman T (2006) Justice at the grassroots? Gacaca trials in Rwanda. In: Roth-Arriaza N, Mariezcyrrena J (eds) Transitional justice in the twenty-first century. Cambridge University Press, Cambridge
Penal Reform International (2001) PRI Research on Gacaca Report, Rapport I, ‘Gacaca jurisdictions and its preparations’, https://www1.essex.ac.uk/armedcon/story_id/000868.pdf Last accessed 4 February 2018
Penal Reform International (2010) Eight Years On…A Record of Gacaca Monitoring in Rwanda, http://srsg.violenceagainstchildren.org/sites/default/files/consultations/restorative_justice/presentations/nikhil_roy/Gacaca.pdf. Last accessed 3 March 2018
Schabas W (2002) The Rwanda Case: Sometimes It’s Impossible. In: Bassiouni M (ed) Post-Conflict Justice. Transnational Publishers, Ardsley
Schabas W (2005) Genocide Trials and Gacaca Courts, Journal of International Criminal Justice 3:879–895
UN Commission on Human Rights (2010) Covenant on Civil and Political Rights (ICCPR) E/CN.4/SR.110
UN Congress on the Prevention of Crime and the Treatment of Offenders (1985) Report A/CONF.121/22/Rev.1
UN Economic and Social Council (1999) Situation de droits de I’homme au Rwanda, Resolution of the Human Rights Commission 1999/20
UN High Commissioner for Refugees (2000) Background Paper on the Human Rights Situation in Rwanda. https://reliefweb.int/sites/reliefweb.int/files/resources/5A90CEF120119A91852569140066B949-rwanda00.pdf. Last accessed 28 February 2018
UN Human Rights Committee (1984) CCPR General Comment No. 13: Article 14 (Administration of Justice), Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law, 13 April, available at: http://www.refworld.org/docid/453883f90.html. Last accessed 4 February 2018
UN Human Rights Committee (2007) General comment no. 32, Article 14, Right to equality before courts and tribunals and to fair trial CCPR/C/GC/32
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2018 T.M.C. Asser Press and the author
About this chapter
Cite this chapter
Sullo, P. (2018). Gacaca Courts Under Human Rights Scrutiny. In: Beyond Genocide: Transitional Justice and Gacaca Courts in Rwanda. International Criminal Justice Series, vol 20. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-240-8_6
Download citation
DOI: https://doi.org/10.1007/978-94-6265-240-8_6
Published:
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-94-6265-239-2
Online ISBN: 978-94-6265-240-8
eBook Packages: Law and CriminologyLaw and Criminology (R0)