Ubutabera: Courts of Genocide
Thijs B. Bouwknegt is a legal historian and trial monitor, working at the NIOD Institute for War, Holocaust and Genocide Studies. Before, he was an international correspondent at war crimes trials and a researcher at the International Criminal Court (ICC) and International Criminal Tribunal for Rwanda (ICTR).
Ubutabera: Courts of Genocide
Bloodstained machetes are laid to rest. Their masters flee while their victims are buried. July 1994. As the dust slowly settles, the full scale of what happened in the past hundred days gradually comes to light. The contours of a wholesale genocide transpire; Tutsi massacred for being Tutsi, together with Hutu for resisting this premeditated extermination. As the survivors count the uncountable dead, the atrocity lingers on. It is carved in the minds of its witnesses and remains like a phantom pain to their ancestors.
There is no perfect antidote to the poisoned past.
Both crave for treatment.
There is no perfect antidote to the poisoned past. At best, there is a mélange of strategies to deal with the legacy of mass violence. The extreme cures involve forgetting and denying. More usual therapies require explaining, purging and judging. Transitional justice is the overarching treatment. Its key tropes are truth, justice and reconciliation. These almost magical words have resonated throughout the hills of Rwanda in the past two decades: Ukuri, Ubutabera, Ubwiyunge. Although they were advocated in harmony, justice set the tone.
12.000 courts dealt with more than one million suspected perpetrators
No genocide in world history has met with so much legal reckoning as the 1994 annihilation of Rwanda’s Tutsi. The numbers are mind-boggling. No less than 12.000 courts dealt with more than one million suspected perpetrators. In the past 18 years, justice was rendered at the speed of light, crossing over a dozen borders. August 1994, four years after civil war began and a few weeks after end of genocide. Impunity showed its impact. Rwanda was in ruins, its inhabitants either killed or on the run. On the rubbles, the victorious Rwandan Patriotic Front (RPF) installed a transitional government. But they had to start from scratch. The state’s treasury was looted, its apparatus fractured and infrastructure demolished. Only 237 judges were left. Prosecutors, lawyers and police officers were equally scarce. The ministry of justice was badly damaged, courthouses pillaged. Judicial officers had no pens and paper to record their interviews and the new minister of justice was keeping criminal dossiers in his hotel room. And these were piling up rapidly.
RPF Soldiers had already arrested 58.000 genocide suspects by October. Prisons soon over flooded and their populace doubled in less than four years. Many were held without charges or formal investigations against them. The mechanic of justice needed time to get into motion. The first push was already given seven days into the killing spree. The RPF asked the United Nations to set up a “war crime tribunal.” To appease its conscience for abandoning Rwanda during the genocide, the international community responded to the call 8 November. But it was not the court Rwanda wanted. The International Criminal Tribunal for Rwanda (ICTR) had no Rwandese judges and set up office a thousand kilometres away from the crime scene, in Arusha, Tanzania.
Kigali and Arusha embarked on a full competition for justice
Competing for suspects
It was a sour relationship from the start. And from late 1995 onwards, Kigali and Arusha embarked on a full competition for justice. On target were the ‘Big Fishes’, former official Hutu extremists who had masterminded, coordinated and executed the Tutsi genocide. The top twenty was well known and lived abroad in exile. They were sought by the Rwandan authorities but were also of interest to ICTR prosecutor Richard Goldstone. Rwandan secret agents tracked some of them down in Cameroon where 12 were arrested in the summer of 1996. But it was Goldstone who claimed them and had them transported to Tanzania, like many others. The exception was Froduald Karamira, a key player in the murderous Hutu regime. Rwanda succeeded to seize him in Ethiopia, try him in Kigali and convict him for genocide crimes in February 1997.
Karamira was shot to death in April 1998 at Kigali’s Nyamurambo Stadium, alongside 21 others, during the last court-ordered execution following the genocide. Karamira’s trial had been broadcast live on Rwandese national radio. It overshadowed the first international proceedings in Arusha that had started only five days earlier, on 9 January 1997. In the dock was Jean-Paul Akayesu, a rather insignificant village bourgomastre of Taba. Some 19 months later, he was the first ever to receive a sentence by an international court for the crime of genocide, the ‘crime of crimes’ under international law. Today, he is serving his life sentence in a prison in Mali. Akayesu was one of the 93 suspects who were indicted by the tribunal.
Rwanda’s national courts tried 10.000 génocidaires in a decade,
in Arusha 74 Hutu’s and one Belgian were put before judges over the course of 20 years.
From its first trials in December 1996, Rwanda’s national courts had nearly tried 10.000 génocidaires in a decade. It is in stark contrast to the 74 Hutu’s and one Belgian who were put before judges in Arusha over the course of 20 years. The group includes politicians, military, militia leaders, journalists, priests and even a pop singer. Its most legendary case focused on the inflaming radio broadcasts of Radio Television Libre de Milles Collines (RTLM/C) and ideological editorials published in Kangura. But the flagship trial dealt with Theoneste Bagosora, the alleged ‘mastermind’ of the genocidal conspiracy. In both cases, however, the court found that the factual responsibility of the accused was very limited. It failed to substantiate what Rwandans know about what happened in Rwanda.
“Court to acquit” rather than to convict
Most of the ICTR’s judgements were received as iconoclastic in Rwanda. Criticised for being a “court to acquit” rather than to convict, the ICTR illustrates justice its incompetence to punish history. Moreover, in Rwanda, the ICTR is often perceived as a western way of doing justice - unproductive, time-consuming, expensive and not adapted to Rwandan custom. Besides, victims and survivors had no means of seeing what went on in Arusha. At the same time, classic trials in Rwanda soon proved not to be enough to deal with the overcrowded prisons.
Therefore, Rwanda reinvented an old tradition: Inkiko Gacaca – or lawn courts in Kinyarwanda. Some 160.000 Inyangamugayo – lay judges - were nominated. These community respectables were tasked with truth finding and speeding up genocide trials. The idea was that this popular process would combat impunity, contribute to national unity and reconciliation and show the world that Rwandans can resolve their own problems.
Grassroots courts tried 1,003,227 people in 1,958,634 cases.
Every week, scores of people around the country attended the community-based Gacaca trials of alleged génocidaires in their communities. Killers were invited to publicly confess to their crimes in exchange for lenient punishments. Neighbours testified against neighbours. Suspects defended themselves before their communities. But there was much, obvious, criticism, particularly from American and European human rights organisations. The major issue was that defendants were not allowed to have lawyers and that the standard of proof was very low. The courts were also troubled by corruption and were often used to settle other disputes. In the first years of the trials, there were even reports of witnesses and judges being murdered. Others complained that the Gacaca jurisdictions left no room for Hutu civilians to address alleged RPF abuses from the civil war.
Despite its pitfalls, Gacaca has been a unique post-genocide response and process. From 10 March 2005 until the closing of Gacaca in June 2012, 12,103 grassroots courts had tried 1,003,227 people in 1,958,634 cases. All the trial testimonies, alongside the information gathered before the trials and pre-trial confessions establish an invaluable historical record. Its archive – stockpiled in some 19.000 boxes in Kigali - microscopically documents the 1994 genocide.
Apart from national trials, international justice and Gacaca, a score of Rwandans ended up in the dock in European countries or North America. Judiciaries in Switzerland, Belgium, The Netherlands, Germany, France, Denmark, Sweden, Norway, Finland, Spain, the United Kingdom, Canada and the United States of America have investigated, indicted or tried dozens of Rwandan refugees suspected of crimes committed in 1994. These countries act under the principle of universal jurisdiction, the idea that serious human rights abuses have no boundaries and can be prosecuted anywhere. Some of these countries have sent criminal files to Arusha or vice versa.
Almost every single suspect of the Tutsi genocide living in Rwanda has faced a judge of some kind. But it does not close the chapters on justice. In 2012, Rwanda set up an International Crimes Chamber. It is designed to try two leftover cases of the ICTR, which closed its doors in 2013, and to track down its nine remaining fugitives. It is also dealing with prominent Rwandans extradited from western countries, including Leon Mugesera. The political scientist is well known for a 1992 speech that led to the first massacres of Tutsi. Many Rwandans from the diaspora are likely to follow.
No one was amnestied, everybody was tried
Assassins of memory
Mass justice ought to balance mass violence. That has been the philosophy behind Rwanda’s tactic in closing the books on the 1994 atrocities. Each single culprit has had to account for his or her role in it. No one was amnestied, everybody was tried: the organisers, the overseers, the killers, the snitches, the rapists and the plunderers were all judged. Virtually all of them were Hutu. But it does not stop there, just like the fact that genocide does not end with the killings. The last phase of the crime is denial, the cover up.
The last categories of genocidaires that will end up in the dock are the revisionists, the assassins of memory. Like the Nazi murders of the European Jews, the mass murder of Tutsi in the name of Hutu Power is considered an historical fact that is protected by law. ‘Trivialising’ the genocide now, is considered as much a crime as taking part in it back then. The same is the case for stirring up ethnic divisions, the root cause and dynamic of the massacres. In Rwanda, justice stretches beyond the actual crimes from the past, it also targets those who seek to erase it from history.