Abstract
The simultaneous pursuit by gacaca courts of a diverse set of goals such as emptying prisons; providing justice according to local culture; speeding up the genocide -related trials; providing Rwandans with a shared record of the genocide events and achieving reconciliation appears to have been overambitious. Despite this concern, the attempt to strictly abide by the principle of duty to prosecute (all) the perpetrators of genocide-related crimes as well as its participatory, community-based approach, made gacaca the most courageous effort ever in the search for post-genocide justice.
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Notes
- 1.
Agamben 1999, p. 18.
- 2.
Ibid.
- 3.
See Waldorf 2006a.
- 4.
See Mamdani 2002, p. 271.
- 5.
On this point, see Human Rights Committee 2009.
- 6.
Haveman and Muleefu 2011, pp. 219–244.
- 7.
Drumbl 2007, pp. 85–99.
- 8.
On this point, see Orentlicher 2007, pp. 10–22: ‘On the question of what international law required at the time of publication, in brief: ‘Settling Accounts’ found that States that had adhered to certain human rights treaties were generally required to ensure that criminal proceedings were instituted against those suspected of specified violations of human rights, such as genocide and torture. As for customary international law—the law that would apply to virtually all States, regardless of which specific treaties they had ratified—I concluded that States’ general obligation to ensure the enjoyment of fundamental rights was incompatible with wholesale impunity for atrocious crimes but did not require prosecution of every offense’.
- 9.
Human Rights Committee 2009: ‘The Committee remains concerned at the large number of persons, including women and children, reported to have been killed from 1994 onwards in the course of operations by the Rwandan Patriotic Army, and at the limited number of cases reported to have resulted in prosecution and punishment by the Rwandan courts (Article 6 of the Covenant). The State party should take steps to ensure that such acts are investigated by an independent authority and that those responsible are prosecuted and duly punished’.
- 10.
See Uvin 2003a, pp. 116–121. Gacaca tribunals represent at the same time a possibility and a high risk, because, as Peter Uvin wrote, ‘gacaca is a worthy gamble, but a gamble nonetheless. It is simultaneously one of the best and one of the most dangerous opportunities for justice and reconciliation in Rwanda. But in a country like Rwanda there are no easy, cheap or clean solutions’.
- 11.
Uvin 2003b.
- 12.
See Uvin 2003a: ‘On the first point, there is no separation between prosecutor and judge, no legal counsel, no legally reasoned verdict, great encouragement of self‐incrimination, and a potential for major divergences in the punishments awarded. In short, the modernized gacaca system seems to provide inadequate guarantees for impartiality, defence and equality before the law. Many foreign legal specialists and human rights observers have consequently been highly skeptical about the gacaca proposal. However, the alternatives they propose, such as guaranteeing the right to legal counsel, basically end up reinventing the same formal justice system which is clearly not adequate’.
- 13.
See Ingelaere 2016, p. 5.
- 14.
See United Nations High Commissioner for Human Rights 1996.
- 15.
Cautioning against the temptation to combine elements of the conventional justice systems with those of traditional system, Joanna Stevens’ study concluded ‘the rational for incorporating traditional and informal Justice forums into the formal state system of courts is to ‘combine the virtues of traditional legal institutions (accessibility, informality, economy, of time and money, and familiarity of legal norms) with those of state legal system (impartiality, uniformity of law and procedures and state legitimacy.’ However, attempts in various countries to achieve this successfully have generally failed. Linking the two systems tends to undermine the positive attributes of the informal system’.
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Sullo, P. (2018). Conclusion. 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_9
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