Transitional Justice in Post-Genocide Rwanda: An Integrative Approach

Chapter 17
Transitional Justice in Post-Genocide Rwanda: An Integrative Approach

Lynne Tirrell

Whether dead or alive, the victims must be recognized as victims and must know that we consider them as victims. Whether dead or alive, the guilty must be declared guilty and recognize themselves as guilty. Whether dead or alive, the innocent must also be declared innocent. Justice does not have several faces; it has only one, and it must be the same for everybody.

Andre Sibomana 19961

Delivering justice would mean killing the killers … Justice finds no place after genocide, because it surpasses human intelligence. Priority must be given to the fields, the harvests, the country, and so to the killers as well and to their families, who are many and strong. What would become of a nation lying fallow, without schools or sturdy houses, eyed greedily by neighbouring countries? This is not a human justice, it’s a politics of justice. We can only regret that they never show either sincerity or sorrow.

Berthe Mwanankabandi, survivor of ’942

An imperfect “politics of justice” is inevitable in the aftermath of genocide. An even-handed justice, Andre Sibomana emphasizes, requires recognizing victims as victims, the guilty as guilty. In Rwanda, an even-handed justice has proven elusive, given the scale of the atrocities, the breadth of participation, and the need to build a justice system from scratch while establishing security and restoring the rule of law. Like many Rwandans, Berthe Mwanankabandi’s resignation to less than perfect justice is matched with determination to live again. Rebuilding individually and collectively in the aftermath of the apocalyptic events of April-July, 1994, Rwandans know that a non-ideal “politics of justice” will be incomplete justice, that despite efforts to build a new criminal justice system, major génocidaires have escaped punishment and small fry have served only short terms. They also know that distributive justice will be hard to achieve. And all along they have been hearing their government and churches stressing the importance of reconciliation without anyone really knowing how to bring it about, despite heroic efforts.

There can be no perfect justice for atrocity. The very concept of transitional justice carries with it diminished expectations and a sense of compromise, and unfortunately suggests that justice has “several faces” (Sibomana). This is, in part, because transitional justice cannot presuppose a stable society, and must have a variety of goals. Gerald Gahima defines transitional justice as comprising the “policies, practices and mechanisms with which societies seek to confront and deal with legacies of past violations of human rights and humanitarian law in the context of political transition with a view to restoring or establishing social cohesion and securing durable peace.”3 The twin goals of transitional justice—social cohesion and durable peace—are broad social goals, not limited to systems of justice. In his recent book Gahima, who was Rwanda’s Attorney General from 1999–2003, nevertheless argues that Rwanda’s intensive emphasis on prosecution may have undermined these important unifying goals. Understanding the complex systems of transitional justice embarked upon in Rwanda is too large a project for this brief chapter, so here I examine the ways different mechanisms yield distinctive forms of recognition, each crucial to Rwanda’s transition.

Learning from Rwanda’s post-’94 transitional justice, broadly construed, I shall argue that without development, neither official occasions for testimony nor the meting out of punishment yields sufficient recognition to survivors. The social cohesion that arises in the aftermath of silence about injustices done to survivors is bought at the expense of those who have already paid too high a price. Official contexts for survivor testimony and corresponding perpetrator punishment are crucial for establishing shared norms and narratives, but these processes can destabilize social relations in important ways. Survivors are often reluctant to come forward, for fear of retaliation from neighbors on whom they depend. Accordingly, without development, these justice mechanisms can undermine social stability and emerging cohesion. The converse is also true: without official contexts of testimony and judgment, development is only material support, and lacks the recognitive force we saw Sibomana demanding in our epigraph. The crucial interdependence of development, which provides distributive justice, with criminal proceedings, which offer retributive and restorative justice, has the potential to secure a lasting and stable peace.

A nation comprised of so many survivors and killers, locked into proximity by economic necessity, is beset by special challenges. Elsewhere, I have argued that genocide is not only mass murder writ large in the attempt to exterminate a people, but it is also what I call recognition harm.4 Genocide’s incomprehensible violation of self and community leaves survivors, bystanders, and even many perpetrators, truly and deeply bereft. These world-shattering wrongs leave survivors feeling cast out of humanity, for as persons we depend on the recognition—cognitive and moral regard—of others to develop our distinctively human capacities. Of course material harms must be repaired (bodies healed, homes rebuilt, wells cleaned, property restored) but social and psychological damage needs repair as well. Being recognized by others as each being a self—a being with plans and projects, a life to live in all its particularity—is an important part of moving away from genocidal terror and into social life and so back into a life of one’s own. Human rights articulate material and social protections of the self as well as the community, with an emphasis on individual well-being.

There has been significant discussion weighing the relative merits of retributive justice versus restorative justice, and there is a burgeoning literature on this topic. Following the genocide, the new government, led by the Rwandan Patriotic Front, decided that prosecuting the génocidaires was necessary, rather than offering blanket amnesty to low-level offenders or a South African-style Truth and Reconciliation Commission (TRC). As Schabas observed in 2005, “The Rwandan experiment is contributing a new element to the ongoing debate between those who brook no compromise in dealing with impunity, and others who argue that reconciliation, cultural differences, or simple pragmatism militate in favour of moderation.”5 In our epigraph from Berthe Mwanankabandi, we hear a resigned pragmatism, perhaps stemming from her conception of justice as requiring a life for a life. Moderation in Rwanda might have meant prosecuting only planners, but more is needed to help the Tutsi widow whose husband and children were killed, and who now lives alone on a hill alongside those who killed her family. Impunity for those who killed her family sends a message of disregard for their lost lives, which is why all accounts of survivor attitudes say they support punishment for all perpetrators.6 When 25,000 were released from prison in 2003, survivors lived in fear of further violence. As REDRESS reports: “Violence and intimidation, physical as well as psychological, overt and indirect, have been a central and recurrent theme of genocide justice for survivors, whether they take their cases to the established courts, to Gacaca, Arusha or to foreign jurisdictions.”7 Criminal justice, reparations and repair, and fair distributive justice must all work together to enact transitions to justice.

In real-life situations, political agents must decide how to allocate time and money to issues of punishment, restoration, security, and development. In the aftermath of atrocity, survivors need to know that their communities, states, and nation take seriously the wrongs done to them. This is a matter of offering recognition to those who have suffered horrible crimes, and in suffering those, suffered the recognition harms inherent in those crimes. Repairing recognition harms requires moral repair, establishing shared social values that restore lost standing and include those who had been cast out. Punishment of offenders and material repair are each individually insufficient for this task, but when combined with economic development and enhanced protection of human rights, there are better odds of creating a social and political system in which all have a voice, one which offers a shared narrative that fosters mutual recognition.

The case of post-genocidal Rwanda is worth examining because of the complexity of their challenges, and particularly because the new government gave priority to punishing génocidaires, in contrast to the strategy of South Africa’s TRC, which traded judicial amnesty for information. With this decision, Rwanda’s goals necessarily combined strong backward-looking and forward-looking elements which often conflicted. Looking backward to past wrongs required finding and punishing the killers and others who committed genocidal crimes. All this took place within a context of massive physical and social destruction. A distinctive aspect of Rwanda’s genocide was the number of civilian participants—literally hundreds of thousands were mobilized to hunt and kill their neighbors. During my research in Rwanda, an ICTR prosecutor warned me to bear in mind that “the entire country is a crime scene.”8 This dramatic yet helpful admonition reminds us that for survivors, there is no place that offers respite. Seemingly innocent moments—like seeing a child playing in a roadside ditch, or a woman walking with a giant hoe or a man carrying a machete as he approaches—can cause concern to anyone who has studied the genocide, so just imagine the effect of such moments on a survivor who saw the ditches filled with Tutsi, and who saw machetes and hoes used to kill. Starting in August 1994, Rwanda set about cleaning up its crime scenes, finding those responsible, and rebuilding a system of justice.

Rwanda’s genocide of the Tutsi left its judiciary decimated, its citizens traumatized and polarized, and its penal system overwhelmed. The new government needed to create safety and security within the country, and reestablish the rule of law. These initial steps include what is often spoken of as “DDR,” the disarmament, demobilization, and reintegration of offenders, but there was also a desperate need to find people to take jobs left vacant by the victims or by those who fled.9 Rwanda needed to rebuild its material infrastructure, rebuild institutions left desolate, and kick-start an economy. They needed to clean up a countryside strewn with the dead, find mass graves, identify and properly bury remains, and disinter people who were cast into smaller yet inappropriate “graves” (latrines, wells, etc.). These were huge and horrific tasks. Rwanda also faced social and economic challenges, with so many Tutsi men killed and so many Hutu men fugitives, with exiled Tutsi returning from neighboring countries, Hutu now in exile to avoid reprisals, and far too many citizens who had recently been in refugee camps, now without homes. Four languages were now common, marking social locations in troublesome ways: Kinyarwanda, French, English, and to a lesser degree, Swahili. Creating unity out of this chaos required great fortitude, and Rwanda’s strength in doing this in the early years was held up as a model.10 For the first decade or more, Rwanda’s situation was clearly transitional. Now, approaching 20 years on, questions arise, within Rwanda and amongst international agents, about which measures are transitional and which are permanent.

Mechanisms of Justice

Post-genocidal Rwanda had three official justice mechanisms: The International Criminal Tribunal for Rwanda (ICTR), operating in Arusha, Tanzania, the Rwandan National Courts, and since 2001, Rwanda’s local gacaca courts. Multiple mechanisms are appropriate, for as Waldorf argues, “Transitional justice requires legally pluralistic solutions, with innovative and context-specific combinations of formal and informal mechanisms operating at the international, national, and local levels.”11 Rwanda’s mechanisms reflect this legal pluralism, from the highly formal ICTR to the much less formal gacaca hearings. These multiple mechanisms send distinctive recognitive messages.

Each of the judicial mechanisms has distinct methods and cases. The ICTR was established to handle Category 1 cases, concerning high-level perpetrators: leaders, especially those who planned and led the genocide, and those who committed widely known, especially heinous murders and rapes. Rwanda’s traditional European-style judiciary system at first took all cases that were not referred to the ICTR, but later took only Category 2 cases, concerning those who killed with intent and who were low-level leaders, perhaps of a death squad. Starting in 2001, a long-abandoned traditional dispute-resolution mechanism, gacaca, was restored (and modified) to handle Category 3 and Category 4 cases. Category 3 cases involved participation in killings and mayhem (gross bodily harm) without the actual attempt to murder, including, for example, those who participated in death squads but who claimed lack of intent. (This would cover those who said they went along to save themselves but tried not to kill.) Category 4 cases primarily concerned crimes against property. In fact, the reality is more complex, and with the National courts moving very slowly, the lines between Categories 2, 3, and 4 often got blurry in practice. This matters, because the open-air public nature of gacaca lacks important protections to witnesses that the trial courts offer, as became starkly evident when rape cases were referred from the national Courts to gacaca in 2008.12

The ICTR was the first court to be established in the months following the genocide. Established by the United Nations Security Council on November 8, 1994, the ICTR’s mission is to prosecute Rwandan citizens (and those of neighboring states) for the crime of genocide in the genocide of the Tutsi in 1994.13 The ICTR’s establishing focus is on high-level leaders and perpetrators, and their broader purpose is “to contribute to the process of reconciliation in Rwanda by helping to restore a sense of justice and playing a role in development of a lasting peace in the Great Lakes region.”14 This statement reveals an important dimension of the ICTR: although its cases are specifically from the 1994 genocide of the Tutsi, its mission is not only about Rwanda. Its purpose was international and distinctly regional in scope and impact, and the court has been responsible for charting new paths in international law. In 2013, the trial cases are over, and, with only Appeals still pending, the ICTR’s closure predicted for 2015. Ninety-three cases were brought and processed, with some recently being referred to other jurisdictions, most especially the Rwandan national courts.

A common complaint I heard in Rwanda was that the ICTR was too expensive, not just internationally, but for Rwanda itself, and was therefore diverting much-needed funds from Rwandan development. Waldorf articulates the practical conflict between prosecution and development during Rwanda’s post-genocide transition, saying:

The RPF’s insistence on mass (often arbitrary) arrests and extensive criminal prosecutions only worsened an already terrible situation: it saddled a devastated justice sector with the impossible task of trying some 120,000 Hutu suspects and it fostered a culture of denunciation, both of which have undermined efforts to establish the rule of law. Most cruelly, it diverted resources away from survivors: instead of providing reparations to genocide victims, the government and international donors have spent millions of dollars incarcerating (and occasionally trying) genocide suspects.15

In my recent research in Rwanda, I spoke with many Rwandans dedicating their lives to rebuilding the country, improving health and education, and increasing economic productivity. Most would agree with Waldorf. One woman expressed annoyance that I was travelling to Arusha to meet with attorneys at the ICTR. She argued that the ICTR is useless to Rwanda, costs the government significant money that could be used for social services or national prosecutions, and that my time should be spent only in Rwanda. Stay in Rwanda, she said, and support Rwanda.

This argument is compelling in many ways, but overlooks the international significance of genocide, a crime that requires international response, both in prevention and in prosecution. The international argument does not carry much weight with Gahima, who writes: “victims of genocide and Rwandans, in general, still primarily view international criminal justice as a self-serving act of atonement to cover up the international community’s failure to come to their rescue.”16 Perhaps this view is widespread. Although post-hoc, international prosecutions do serve to spread the responsibility beyond Rwanda. As Francois-Xavier Nsanzuwera argues, “By recognizing that atrocities perpetrated against Tutsi civilians, and their Hutu sympathizers in 1994, were a crime of genocide and crimes against humanity, the ICTR rendered human dignity back to the survivors of the genocide, who had been robbed of it by the perpetrators.” This is an important form of recognition. Nsanzuwera adds that in testifying, survivors not only pay “a final homage” to the dead, but they also ask the court “to recall, by meting out such justice, that crimes which shock the universal conscience cannot go unpunished, regardless of where they were committed.”17

The ICTR, as an international tribunal, recognizes the gravity of genocidal crimes and their international significance.18 Also, as an international tribunal, it recognizes that genocide is a crime against humanity, not just against those directly wronged. It constitutes a post-hoc taking of responsibility, both backward-looking to decide punishment, and forward-looking to set precedents (as in Akayesu which for the first time recognized rape as an act of genocide).19 In a 2001 report on the ICTR, primarily lamenting its slowness and expense, the International Crisis Group nevertheless highlights the important recognitive role of the court: “It has provided indisputable recognition of the Rwandan genocide and has politically neutralised the ‘Hutu Power’ movement’s agenda of Tutsi extermination.”20 Practitioners at the court are surely aiming for more, but this recognition is an important moral and political achievement, one that an international tribunal is well situated to provide.

Beyond the resources complaint, a second sort of worry focuses on the limits of recognition that the ICTR can achieve, and in so doing highlights the value of multiple mechanisms of justice. For many survivors, testifying before the ICTR is logistically impossible and for those that do testify, they find that the process of ICTR trials is excessively formal and alien. Some see the ICTR as letting the “big fish” escape the gaze of the communities they harmed. One survivor says “they should face us, the Rwandan family, but they avoid us by being there.” Another emphasizes the importance of face-to-face encounters between accused and accuser: “A person who testifies in another’s absence, it is easy for them to lie but if you see each other, it is much more difficult to lie.”21 These survivors gave priority to local justice, giving little value to the international perspective of the ICTR.

The Rwandan National Courts provide the nation with its own formal mechanisms, saying, “we judge and punish our own, seriously and fairly.” Some survivors report feeling that the ICTR takes genocidal crimes seriously but their own government would prefer to sweep them aside.22 The truth is more complex, but the message that “we judge and punish our own” conveys a message of national autonomy. These national courts were not up to international standards even prior to ’94 and then were devastated by the killings of so many judges and attorneys. In the early years of the new regime, restoring the rule of law required reconstructing a judiciary; in the decades that followed that judiciary needed guidance and training to bring the courts to international standards of fairness.

One measure of the success of the Rwandan National courts can be seen in the approval given by a panel of judges, called the Referral Bench, to transfer 11 cases from the ICTR to Rwandan National courts under Rule 11 bis. Prior attempts all failed, hung up on two main sticking points: (1) a lack of assurance that the accused would get a fair trial, and (2) Rwanda still imposed the death penalty.23 With judicial improvements and with the death penalty off the table, on June 28, 2011, the Bench ruled that Rwanda could try these 11 high-level cases itself. I was visiting the ICTR when this ruling came down, and it was cause for celebration there, signaling a new phase in the distribution of responsibility. The goal of transfer, to UN nations as well as Rwanda, was partly to move toward closing the ICTR, but also to promote interaction across the many jurisdictions, each taking responsibility not only for their assigned cases, but also for observing proceedings elsewhere to ensure fair trials everywhere. With different nations comparing trials, there is also hope that higher standards will be followed. For Rwanda to receive responsibility for these cases was a significant vote of confidence from the ICTR and the Referral Bench.