Enforcing International Humanitarian Law at the National Level: the Gacaca Jurisdictions
Spotlight On Issues Of Contemporary Concern In
International Humanitarian Law And International Criminal Law
ENFORCING INTERNATIONAL HUMANITARIAN LAW AT THE NATIONAL LEVEL: THE GACACA JURISDICTIONS OF RWANDA
Chiseche MIBENGE[1]
1.INTRODUCTION
2.WHAT IS GACACA?
2.1Establishing ‘new’ gacaca tribunals
2.2Jurisdiction of gacaca courts
2.3Sentencing
2.4International fair trial standards
3.CONCLUSIONS
‘What Rwanda expects from the Gacaca Courts is to establish the truth about what happened, to expedite the backlog of Genocide cases, to eradicate the culture of impunity and to consolidate the unity of our people…Furthermore, if the Gacaca Courts function as we anticipate, it will be an important contribution to the understanding and advancement of international law.’
Address to the nation by H.E. Paul Kagame President of the Republic of Rwanda on the eve of the gacaca elections, 3 October 2001[2]
1.INTRODUCTION
Genocide was unleashed in Rwanda in April 1994. Within the first few hours, ten Belgian peacekeepers had been kidnapped and murdered and the leading moderate political leaders summarily and brutally executed. Approximately 100 days later, an estimated 800,000 people were killed. Militias, armed forces, police officers and the ordinary man and woman on the street took part in the massacres.[3]
In the decade that has elapsed since the genocide,Rwanda has put transitional justice at the centre of its post-conflict reconstruction process. In September 1994, the United Nations Security Council, at the behest of the Rwandan government, passed a resolution creating the International Criminal Tribunal for Rwanda (ICTR), to adjudicate the crimes of genocide, war crimes and crimes against humanity committed in that country.[4] Subsequently, in September 1996, Rwanda’s legislative body passed the Organic Law on the Organisation of Prosecutions for Offences Constituting the Crime of Genocide or Crimes Against Humanity (Organic Law).[5]
Thus, by September 1996, two legal processes—one international and one national—were in operation, exercising concurrent jurisdiction over international crimes. However, by the close of the century, justice remained indefinitely delayed, and indefinitely denied, to many victims and survivors, as well as detainees accused of gross violations of human rights and international humanitarian law. By January 2000, approximately 2,500 people had been tried by Rwanda’s judiciary and over 120,000 were awaiting trial in dangerously overpopulated prisons. The prosecution rate of the ICTR also remained modest. Seventy indictments have been brought since 1995 and by early 2000 nine trials had been completed resulting in eight convictions and one acquittal. The Appeals Chamber confirmed all of the convictions.
In response to the national judiciary’s inability to make significant headway in the criminal prosecution of persons suspected of violating international law, the government of Rwanda began to seek alternative forms of justice which could operate concurrently with the ICTR as well as the ordinary courts’ criminal process. There was an emphasis on establishing a model of justice that would embrace traditional Rwandan values by advocating restoration over retribution. A model that would expedite the process of justice, ease overcrowding in detention centres, and uphold the rights of the accused while remaining palatable to the survivors of the genocide. Gacaca tribunals emerged as the only viable solution to the impasse in Rwanda’s domestic transitional justice process.
2.WHAT IS GACACA?
The gacaca is a traditional community-based mechanism of dispute resolution and a literal translation into English is ‘lawn’ or ‘yard’, referring to the fact that parties to a dispute as well as members of the gacaca sit on the grass whilst determining the dispute. Historically, it was a non-state or informal system used by indigenous Rwandan families and communities for dispute resolution. Created on an ad hoc basis, it remained an unwritten law and proceedings varied depending on the circumstances of the dispute.
Generally, the types of conflict dealt with by the gacaca were related to issues that struck at the core of social cohesion, tolerance and peaceful co-existence in Rwanda’s densely populated rural communes. Disputes over property rights, livestock, marriage, succession, attacks on personal dignity and physical integrity, etc. were most often brought before the elders for mediation. Gacaca courts were not made obsolete by colonisation or independence; they remained active in regulating the lives of Rwandans and maintaining social harmony and justice in communities. Legal pluralism allowed gacaca to flourish generally unhindered and it remained active throughout the 1990s, increasingly under minimum commune administration.[6]
The ‘new’ gacaca is not an attempt by the government of Rwanda to duplicate the traditional gacaca. It is a unique process with similarities to the traditional mechanism but also incorporating a contemporary legislative framework derived from Rwanda’s Penal Code, as well as international conventions to which Rwanda is a party, such as the Geneva Conventions and the Genocide Convention.
2.1Establishing ‘new’ gacaca tribunals
The Transitional National Assembly of Rwanda formally adopted proposals for the introduction of modern Gacaca Tribunals on 12 October 2000. Rwanda’s Constitutional Court declared the Draft Gacaca Law constitutional on 18 January 2001.[7] An amended Gacaca Law was enacted in June 2004 and where differences exist, the current Law will prevail.[8]
The Gacaca Law provides for the establishment of 11,000 Gacaca Tribunals throughout the country, from Rwanda’s lowest political and administrative level of the cell, to that of thesector. Each gacaca jurisdiction includes a general assembly, a seat (judges), and a coordinating committee. The general assembly of a cell is made up of all the cell’s residents over the age of 18. This community elects from its members 9 ‘honest persons’ constituting the seat and 5 deputies.[9] The general assembly for the sector is composed of the seats for the gacaca court of the cells constituting that sector, the seat for the gacaca court of the sector and the seat for the gacaca court of appeal. The general assembly for the sector elect from amongst its members 9 judges and 5 deputies as well as 9 judges and 5 deputies for the Gacaca Court of Appeal. The Gacaca Law prohibits lawyers, career magistrates, politicians, soldiers and policemen in active service, and civil servants from standing as judges of the gacaca.[10]More than 90 percent of the Rwandan electorate participated in electing over 200,000 judges known as les Integres in October 2001. Thirty five percent of those elected were women. This is notable, as historically gacaca courts were presided over by male heads of families or communities. The training of 781 trainers selected from magistrates and final year law students began in February 2002 and subsequently, the training of 254,152 judges of gacaca began on 8 April 2002.
The sheer scale of the implementation of the gacaca process quickly overwhelmed the Rwandan government and the inauguration of the tribunals was repeatedly delayed. Finally, on June 2002, President Kagame officially inaugurated a small sample of gacaca tribunals in order to test the efficiency and justness of the process. Gacaca became operational only in 73 cells of the 12 sectors chosen for the pilot project. By the end of 2002 gacaca was operational in a total of 650 jurisdictions.
Pilot gacaca jurisdictions were officially inaugurated and launched by President Kagame on June 18, 2002 and the government commenced the first and second phase of the gacaca mandate with pilot courts in select sectors. In each community where gacaca had been set up, people held public meetings where residents detailed what happened in the neighbourhood during the massacre and identified the victims as well as culprits (phase 1).[11] Thereafter gacaca judges would categorise the crimes alleged (phase 2).
During phase one and two of the pilot gacaca an impressive 63,447 cases were recorded, and out of this number, approximately 38,896 were categorised and awaiting trial before the gacaca courts. The normal courts had compiled 56,763 cases.[12]
By early February 2005, 8260 gacaca courts (3000 less than first envisaged in 2001) at the cell level began carrying out genocide trials on a nation wide scale. The Rwandan government estimates that all pre-trial phase one and two activities will be completed by the end of June 2005. According to those estimates, the first trials in these courts would start on January 2006. Tentative projections put the completion date of gacaca hearings at five years.
Several other government bodies support the work of the gacaca jurisdictions. The election of Judges is organised and conducted by the National Electoral Committee. Legal advice when required can be sought by the gacaca seat from legal experts appointed by the National Service which is also responsible for the follow up, supervision and coordination of gacaca activities. It is also empowered to issue rules and regulations relating to the procedure of gacaca. The Ministry of Justice is responsible for the elaboration of all gacaca related laws and decrees, while the Ministry of Interior affairs is responsible for prisons and the transfer of detainees, and the Ministry of Finance controls and distributes the Gacaca budget. The Office of the Prosecutor continues to receive denunciations and conduct investigations before transferring case files to the gacaca tribunals.
2.2Jurisdiction of gacaca courts
The Gacaca Law categorises suspects according to the gravity of the crimes committed by them. Category 1 offenders include: (1)The person whose criminal acts or criminal participation place him among planners, organisers, and ringleaders of the genocide or crimes against humanity, together with his accomplices; (2)The person who, at the time, was in the organs of leadership, at the national level, at the level of prefecture, sub-prefecture, commune, political parties, army, gendarmerie, communal police, religious orders or in militia, has committed these offences or encourages other people to commit them, together with his accomplices; (3)The well-known murderer who distinguishes himself because of the zeal which characterised him in killings or excessive wickedness with which they were carried out, together with his accomplices; (4)The person who committed acts of torture against others even though they did not result in death, together with his accomplices; (5)The person who committed acts of rape or torture against sexual organs, together with his accomplices; (7)The person who committed dehumanising acts on the dead body, together with his accomplices.[13]
With respect to the third (trial) phase, category 1 crimes fall outside the jurisdiction of gacaca, but investigations and categorisation of all case files is the responsibility of gacaca. Only once sufficient facts and evidence is adduced by the gacaca general assembly and a case is classified as category one by the seat of the gacaca tribunals will it be transferred to the ordinary courts for trial. This in effect means that victims and witnesses of sexual violence, torture and other class one offences have had to testify at the gacaca level during the first and second phase of gacaca in order that the allegations could be recorded, investigated and then categorised before transfer up to the ordinary courts for trial.
Gacaca courts’ therefore exercise jurisdiction over category 2 and 3 offenders. Category 2 offenders include: (1)The person whose criminal acts place him among killers who committed serious attacks against others, causing death, together with his accomplices; (2)The person who injured or committed other acts of serious attacks with the intention to kill them, but who did not attain his or her objective, together with his or her accomplices; (3) The person who committed or aided to commit other perpetrators, without the intention to kill them, together with his or her accomplices.[14]
The gacaca court of the cell deals at the first and final instance with category 3 offenders.[15] The gacaca court at the sector deals at the first level with category 2 offenders. Both gacaca at the cell and sector level have jurisdiction over community members accused of intimidating victims and witnesses of the gacaca courts as well as those victims and witnesses who commit perjury, refuse to participate in the proceedings or otherwise obstruct the course of justice.[16] The gacaca court at seat level has the power to hear appeals against judgments arising from the cell level regarding obstruction by witnesses and intimidation of witnesses. The Gacaca Court of Appeals deals with appeals against sentences pronounced at first instance at sector level. [17] Accused persons will be tried before the gacaca court in the area where the alleged crime was perpetrated.[18]
2.3Sentencing
The gacaca justice system relies on a system of plea agreements. A pre-set fixed reduction in the penalty that would otherwise be imposed for their crimes is available to all perpetrators in return for an accurate and complete confession, a plea of guilty to the crimes committed, and an apology to the victims.[19] A greater reduction in their sentence is made available to perpetrators who confess and plead guilty prior to prosecution than to perpetrators who come forward only after prosecution has begun.
The sentences provided under the gacaca legislation are as follows: Category 1 offenders categorised by gacaca courts and convicted in the ordinary courts who refused to participate in the guilty and confession plea procedure, or whose confession was rejected by the seat are sentenced to death or life imprisonment whilst those who confessed incur a sentence ranging from 25 to 30 years of imprisonment; Category two perpetrators who killed or had the intention of killing will receive a sentence of 25 to 30 years if they refused to confess or had their confessions rejected by the Seat, and those who confessed during or after the trial incur a prison sentence ranging from 12 to 15 years, but out of this sentence, half will be served in custody and the rest is commuted into community service on probation, and for those who confess prior to the trial phase are sentenced to 7 to 12 years, serving half in detention and half on community service; Category 2 offenders who committed assault are sentenced to a maximum of 7 years and a minimum of 1 year depending on their cooperation in the confession procedure. They are also entitled to have half of their sentence commuted into community service. All category 3 defendants convicted are liable only for civil reparations for damages caused to other people’s property.[20]
The Gacaca Law provides for lesser sentences for juvenile offenders who were 14 years or more but less than 18 when they were charged. Sentences range from between 20 years to 6 months detention depending on the gravity of the crimes and cooperation with the guilty plea procedure.[21] Accused persons under the age of 14 at the time they were charged cannot be prosecuted and are released by gacaca and ordinary courts into solidarity camps created for the rehabilitation of juvenile delinquents.
The sentence reductions offered by the guilty plea procedure are drastic, and indeed the effect of this system will be that the majority of accused who confess will not serve a further day in Rwanda’s prisons, as the system allows that category two and three offenders who plead guilty and are convicted can serve half of the sentence outside prison engaged in community work. So, for accused persons who have already served a substantial period in detention and who are guilty, a plea bargain is an attractive option. The guilty plea system requires a full and detailed confession, which may yield important evidentiary information given that many crimes were committed in the context or under the cover of war where witnesses are few and survivors are often cowed by the fear of reprisals and desist from testifying. The guilty plea procedure has yielded impressive results: By June 2004, approximately 40,000 genocide suspects brought before the gacaca courts during the preliminary phases had admitted participating in the 1994 genocide, all 40,000 belonged to the 2nd category of offenders.[22]
2.4International fair trial standards
It is apparent to even the most casual observer that the gacaca process conflicts in part with international fair trial standards. The right of all accused persons to be represented by counsel, and the right to a competent, independent and impartial tribunal immediately jump to mind.Gacaca does not provide for any form of legal representation, for either victims and perpetrators and the government has argued that this is by default the best form of equality of arms: Rwanda’s legal profession was decimated by the genocide and despite some recovery, it would be an impossible feat to provide all victims and perpetrators with legal representation. Advocates of restorative justice also suggest that the presence of legal counsel or active prosecutors in the gacaca process would ‘steal’ the conflict and the responsibility for its resolution from the fractured community, and thereby retard reconciliation. Regarding the impartiality and competence of the gacaca judges, it has been argued that justice in the traditional Rwandan sense, demands that stakeholders in the justice and reconciliation process, i.e. all those who were most closely affected by the dispute, in this case the genocide, are seen to be the principal actors in the gacaca process. Importing impartial judges from abroad would provide impartiality borne of ignorance and lack of recognisance of the social, cultural and political undertones impacting Rwanda’s process of transitional justice. Thus, an impartial judge violates the spirit of the gacaca process.