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Max Planck Encyclopedia of Public International Law [MPEPIL]

Gacaca Courts

Gerd Hankel

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 25 June 2019

Subject(s):
International criminal law — Torture — Settlement of disputes — International criminal courts and tribunals, composition

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Overview

‘Gacaca’ is derived from a word in Kinyarwanda, Rwanda’s official national language, and refers to a traditional mechanism for resolving local disputes that has been revived and adapted to ascertain what occurred during the Rwandan genocide and bring its perpetrators to justice (Transitional Justice in Post-Conflict Situations). The Gacaca courts represent a third jurisdiction—the others are the Rwandan State criminal courts, the competent courts of other States that apply the principle of universal jurisdiction, and the UN-mandated International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania—charged with investigating and prosecuting genocide-related crimes. In contrast to the ICTR—with a mandate to try alleged perpetrators of crimes committed in 1994 only—the competence ratione temporis of the Gacaca courts as well as that of the Rwandan criminal courts extended from 1 October 1990 to 31 December 1994. (See also International Criminal Courts and Tribunals, Complementarity and Jurisdiction.)

The first Gacaca courts were convened in a pilot phase in June 2002. It was not until early 2005—following amendments to the law that established the Gacaca jurisdictions for crimes perpetrated during the genocide and alterations in the court proceedings that were designed to increase the courts’ effectiveness—that Gacaca courts took up their work throughout the country. In mid-June 2012, ten years after the pilot phase began, a ceremony in the Rwandan parliament marked the end of the Gacaca process. According to Organic Law 04/2012, new cases were to be tried by the Intermediate Courts, the Primary Courts, or the Mediation Courts (abunzi), depending on the severity of the charges. Retrials were to be in the jurisdiction of the ordinary courts. By June 2012, charges related to almost two million crimes had been filed against nearly one million people (most of them, namely 90%, male) before approximately 13,000 Gacaca courts. The sentences ranged from compensation payments to prison sentences, including, in some cases, life sentences; frequently, the convicted were obliged to perform community service (Travaux d’Intérêt Général ‘TIG’). How many of the accused were acquitted is not known; estimates vary from 15% to 20%.

B.  Reasons for Reactivating and Adapting the Gacaca Jurisdictions

1.  The Challenges to the Rwandan Criminal Justice System

Some four years after the end of the genocide in Rwanda, nearly 130,000 suspects were incarcerated in Rwandan prisons awaiting trial. A law enacted in September 1996 assigned Special Chambers, newly created within the Rwandan Courts of First Instance and the military courts, exclusive jurisdiction in prosecuting genocide and crimes against humanity based on the country’s criminal code (Criminal Jurisdiction of States under International Law; International Criminal Jurisdiction, Protective Principle; Jurisdiction of States). By the end of 1998 these Special Chambers, each of which had three judges, had passed down decisions in only about 1,300 cases. By 1999, the total number of judgments was 2,600—with the annual rate of decisions remaining at somewhat more than 1,000 in the following years, and approximately one-fifth of these cases ending in acquittals. The regular criminal courts were quite evidently unable to deal with this backlog, due in part to the severe lack of judges, public prosecutors, and attorneys, many of whom had been murdered during the three-month genocide or had fled to neighbouring countries. Also significant was the fact that the trials took place virtually without the involvement of the Rwandan people; what occurred in the courtrooms was generally disconnected from the social reality of post-genocide Rwanda. Suspected perpetrators of the genocide were often unwilling to acknowledge their guilt and confess, despite being offered considerable reductions in their sentences—depending on when a confession was made, a life sentence for homicide might be reduced to a prison term of seven to 15 years. As a result of the population’s indifference, obtaining evidence or convincing witnesses that they should testify in court also proved difficult.

When, in the late 1990s, public discussion focused on the need for new procedures that would expedite the legal process and enhance its acceptance in the Rwandan population, the Gacaca courts, as a traditional form of resolving conflicts, were increasingly perceived as an appropriate answer to these challenges.

2.  Objectives, Competence, and Organization of the Gacaca Jurisdictions

(a)  Gacaca Courts as a Catalyst of Reconciliation

Gacaca courts were in existence in Rwanda before the colonial period (Colonialism)—which began in the late 19th century—and before the introduction of codified law. As the word Gacaca (the letter ‘c’ is pronounced in both syllables like the ‘ch’ in church)—which means ‘a grassy place’—suggests, such courts were convened outdoors in the middle of the village. Under the leadership of the so-called Inyangamugayo—people who detest dishonour or people of integrity, all of them male—conflicts of all kinds were heard, from cases of agreements that had been violated, to property damage, to violent crimes. All villagers who were directly involved or interested in the case were present and testified for one party or the other. The Inyangamugayo ruled on the case and their judgment generally reflected two considerations. The first goal was to restore peace. Actions of one or more persons that disrupted community life had to be rectified in a manner that would be accepted by all. The second aspect was the verdict itself. In order to re-establish harmony in the community, the decision had to be perceived as just. This did not necessarily entail holding the individual that had caused the damage responsible. Instead, another member of that person’s family or clan might have been the addressee of the verdict, so long as the decision reached secured the restoration of peace in the community.

A law enacted by the Belgian colonial regime in 1924 restricted the jurisdiction of the Gacaca assemblies to civil disputes and trade conflicts and stipulated that criminal cases were to be tried in the colonial courts. This division remained in effect until Rwanda gained independence in 1962 (Decolonization: Belgian Territories); thereafter, the influence of the Gacaca courts declined considerably, as these traditional forums were increasingly superseded by the State court system.

Before the Gacaca system could be revived as a mechanism for bringing the perpetrators of the Rwandan genocide to justice, their jurisdiction had to be re-extended to include criminal acts. Moreover, the structure, jurisdiction, and competence of the courts had to be formulated in detail, as did procedural rules and provisions for the appeals process. Three laws enacted in 2001 and 2004, which were revised a number of times until 2008, provided this framework that simultaneously supplies a legal form for the five goals of the Gacaca courts, namely, a) identifying the truth about what happened during the genocide, b) speeding up the genocide trials, c) fighting against the culture of impunity, d) contributing to the national unity and reconciliation process, and e) demonstrating the capacity of the Rwandan people to resolve their own problems. This became apparent when the pilot phase was launched in 2002, with placards in a nationwide campaign that proclaimed: ‘Gacaca courts—Truth heals—If we say what we have seen, if we confess what we have done, then our wounds will be healed’. (See also Truth, Right to, International Protection.)

(b)  Applicable Law, Structure of the Courts, and Procedures

In the laws referred to above, the competence of the Gacaca courts has been defined as the prosecution of acts of genocide and crimes against humanity committed in Rwanda in the period from 1 October 1990—the beginning of the civil war (Armed Conflict, Non-International)—to 31 December 1994, at which time peace had, for the most part, been restored. Prior to the genocide, and in some cases long before 1990, Rwanda had ratified the pertinent international agreements, such as the Convention on the Prevention and Punishment of the Crime of Genocide, the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Geneva Conventions I–IV [1949]), the additional protocols to the Geneva Convention (Geneva Conventions Additional Protocol I [1977]; Geneva Conventions Additional Protocol II [1977]), and the Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity (War Crimes); however, it had not transposed the provisions of these international agreements into national law. Thus, the Gacaca courts must apply the Rwandan criminal code for prosecuting and sentencing perpetrators of genocide-related crimes (Individual Criminal Responsibility).

The Rwandan laws of January 2001 and June 2001 that established the Gacaca jurisdictions stipulate that suspects are to be assigned to one of four categories. The first included those accused of mass murder as well as persons who had allegedly perpetrated sexual torture or rape, participated in planning the genocide, or used their position in the State or society to promote mass murder. The second category was to comprise persons accused of committing homicide or other violent acts resulting in death. Perpetrators of (aggravated) assault were assigned to category three and the fourth was to be reserved for those suspected of committing crimes against property. With the exception of perpetrators from the first category, who were to be tried before the conventional courts, each of the categories was assigned to a specific instance in the four-tiered Gacaca system. The lowest administrative level of the Gacaca courts, the cellule or cell, was to hear cases from category four. These courts were also charged with systematically recording for the first time which individuals were accused of specific crimes, and with the difficult task of classifying suspects according to these four categories. Courts on the next highest level (sector) tried cases from the third category. And the courts on the next level (district) were responsible for category two cases. The court of appeals for each level was the next highest court. For Gacaca courts on the district level, appeals would be heard by the highest level or provincial Gacaca court.

10  In practice, rather than contributing to expediting the judicial process, classification of alleged perpetrators into these four categories as well as the division of the Gacaca jurisdictions into four levels soon proved to be impediments. Further amendments to the Gacaca law enacted in June 2004 therefore reduced the number of categories to three and the number of appeals courts to two. Gacaca courts on the level of the cell continued to be responsible for categorizing the accused and for trying crimes against property—which were now in category three—whereas the sector level courts were assigned cases involving homicide or manslaughter as well as (aggravated) assault (category two). These latter courts became the appeals courts for decisions reached on the cell level. A new appeals court was established on the sector level to hear appeals from the regular sector courts. Following changes in the law passed in 2007 and 2008, certain crimes from category one that were previously in the jurisdiction of the regular courts were assigned to the Gacaca courts on the sector level. Among these crimes were incitement to perpetrate genocide and the organization of genocide up to higher administrative levels and cases of rape and sexual torture. These changes were intended to further speed the judicial process and to improve public awareness of crimes perpetrated in the context of the genocide. However, trials involving sexual offences were generally held in camera (Gender-Based Crimes). As a further measure aimed at speeding proceedings, the number of lay judges (men and women from all parts of the population who had to be at least 21 years old) in each Gacaca court was reduced from nineteen to seven, of whom five had to be present during the proceedings. The selection process for lay judges, respected adults from the specific community, remained unchanged: the adult population of each cell (who were to be at least 18 years old), referred to in the Gacaca system as the general assembly, elected the judges from among their midst.

11  Gacaca courts could impose prison sentences of as much as a life term and also charge the convicted with providing compensation for victims or their survivors. For those guilty of a crime against property (67% of the accused), material reparations were the sole punishment allowed. As in the State courts, the sentences of suspects who confessed and apologized were reduced considerably. If, for example, a perpetrator made a confession and expressed remorse before the Gacaca court that had taken up his or her case, the lowest possible sentence for homicide was eight years in prison; the sentence for assault under these conditions would have been one year. Sentences for minors—those who were older than 14 but not yet 18 years of age when the crimes were committed—ranged, depending on the gravity of the deed and on when a confession was made, from six months to 20 years. In all cases involving category two crimes, only one-sixth to one-half of the sentence was a prison term; half of the total sentence was transformed into community service and any remaining portion commuted to probation.

12  Six-day training programmes aimed at preparing Gacaca judges began in 2002; key issues were the structure and function of the Gacaca courts and procedural questions such as how to determine whether a confession is sincere and complete, what rights victims (Victims’ Rights) and witnesses are entitled to during the proceedings, how can accusations be assessed and decisions formulated. Another focal point was conveying an understanding of the three phases that form the core of the Gacaca jurisdictions and the key to its role in the process of national reconciliation. The first phase was devoted to determining occurrences in the area of each cell during the genocide. To this end, as many members of the population of a cell as possible had to attend—the quorum for a cell, each of which is assumed to have an average population of 250, was 100 attendees. Participants were called upon to report what they had observed or experienced and recount the suffering of the victims and the deeds of the perpetrators. In a second step, the reported acts were attributed to incriminated individuals; that is, the cell community ascertained—by hearing conflicting reports, accusations and objections—whether or not a person committed the crimes specified. The court then assigned the accused to one of the three categories. The third and final phase was the actual trial, in which the court decided in public session whether the alleged perpetrator was indeed guilty. The Gacaca court was obliged to formulate a written decision for each case.

13  The third phase began with the presiding judge reading the charges brought against the accused, who was subsequently given an opportunity to make a statement. Then, witnesses for the prosecution and the defence were heard and the case was debated; new witnesses could also come forward during the debate. If the allegations were substantiated by testimony, the accused was once more instructed before the court about the possibility of confessing and offered a final opportunity to confess. For those who made use of this option and also expressed their regret about the crime or crimes committed to possible survivors, prison sentences could still be reduced considerably at this stage of the proceedings—such that perpetrators of category two crimes (29% of the accused) were sentenced to between 25–9 years, of which only one-third was to be served in prison; the sentence would otherwise be from 30 years to life in prison. However, the confession and the expressions of regret had to be genuine and convincing and not appear to be motivated solely by the desire to receive a lighter sentence. Such questions as well as the final decision were reached by the judges in closed session and by means of an absolute majority of their votes.

C.  Assessment and Reception of the Gacaca Jurisdictions

14  Due to the massive participation of representatives of State institutions and the civilian population in the genocide, finding new ways of dealing with the legal issues the genocide raised was of vital importance. Beside the overwhelming caseload, Hutus and Tutsis continued to inhabit the same country, making it essential that the truth be determined and the perpetrators be punished in a manner that was based on a consensual process. The ‘culture of impunity’ that had reigned before the genocide with respect to crimes perpetrated against the Tutsi was to be ended. Reactivating the Gacaca jurisdictions was seen as an appropriate solution to these problems. The Gacaca courts were supposed to create a framework for rapprochement between the different groups and to contribute to turning the new official slogan, ‘We are all Rwandans’, into reality. The fact that the accused tried before the Gacaca courts did not have a right to legal counsel, despite the gravity of their alleged crimes, was an unavoidable weakness of the system. There were quite simply not enough attorneys in Rwanda to handle such a large volume of cases. Under these circumstances, it is acceptable that the local population supported a suspect in cases where the existing evidence made this seem appropriate. However, in a considerable number of cases—for example, during assignment of the accused to one of the three categories—the State prosecuting authorities put considerable pressure to bear on the Gacaca courts so that it may be questionable whether acceptable standards for a fair trial were being met (Fair Trial, Right to, International Protection). For example, the Gacaca law provided for the possibility of filing a complaint against a decision regarding the category of a crime made at the outset as well as a change in category in the course of the trial. But the probability that such a complaint would be effective was marginal, since the prosecutors had a great deal of influence on the proceedings and cooperated closely with the Gacaca courts. The result was usually a clear advantage on the side of the prosecution as compared with the defence.

15  In the early phase of the Gacaca courts, participation was high in many regions. Seated in a semi-circle in front of the judges, the inhabitants of a cell discussed the occurrences during the genocide quite openly. As time progressed and the sessions went on for several months, the interest of local residents and the willingness of the accused to confess waned considerably. Former participants, who had repeatedly had to recount the suffering experienced during the genocide, who had waited long periods until a judgment was handed down, or who had waited in vain for compensation from the government (a compensation law was never enacted), increasingly stayed away from the proceedings. Others became increasingly lethargic, after the Gacaca law of 2004 required compulsory attendance at the court proceedings. Moreover, the loss of faith on the part of survivors grew as considerable numbers of Gacaca judges were themselves suspected of having been involved in crimes of genocide—by mid-2006, some 45,000 judges had aroused such suspicions, and thus nearly one-third of the total number. These individuals were replaced by other judges—every Gacaca court has two substitute judges, who are also elected by the local population. The Hutu—who still constitute the majority of the population today and are quite aware of this fact, despite the rhetoric of national unity that has banned the Tutsi and Hutu labels—also tended to be more and more disinterested. They not only perceived themselves as the victims of collective defamation, but also observed that war crimes and crimes against humanity committed by the other side in the course of the war and the genocide were repeatedly ignored because of pressure and intimidation by the authorities. These crimes have also been absent from the ICTR’s investigations and its judgments handed down, so that, at least in this respect, the influence of the ICTR on the reconciliation process in Rwanda has been controversial.

16  Under Art. 152 of Rwanda’s new Constitution, which was enacted in June 2003, the Gacaca jurisdictions had attained the status of constitutional bodies. The current version of Art. 152 of the Constitution no longer mentions the Gacaca courts. According to the legislators, the Gacaca courts had fulfilled their function in dealing with crimes committed in the context of the genocide. Indeed, the Gacaca jurisdictions in general represent an appropriate instrument for dealing with the legacy of the genocide on a legal level. The generous provisions for reducing and commuting sentences, in particular, can be interpreted as an outstretched hand offered to those who wish to join in the reconciliation process. It is this aspect—the possibility of promoting social peace or even reconciliation—that make the concept of Gacaca justice a potentially promising model for the legal systems in other countries in the Great Lakes region (Great Lakes Region, Africa). Possible candidates are Burundi, the Democratic Republic of the Congo (Congo, Democratic Republic of the), Uganda or Kenya; all of which are States in which ethnically motivated conflicts and even genocidal wars have taken place or, indeed, are still occurring today (see also Ethnic Cleansing; Ethnicity). Like Rwanda, these countries also have a tradition in which recognized personalities from the community mediate in cases of conflict, with the main goal of reinstating social peace. However, in order to establish a form of Gacaca justice that has been adapted to suit local contemporary conditions, a (relatively) stable and conflict-free environment is needed as well as a State authority that recognizes the necessity of such a form of justice and is willing to use its power to promote it. If rather than attempting to assert a specific narrative all those involved aim to deal openly with the country’s violent past, then the concept of Gacaca justice would seem to be the best means of achieving rapprochement between (formerly) antagonistic groups through dialogue; it would constitute the best means, because it is rooted in the culture and history of these countries.

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