When the Rwandan Patriotic Front (RPF) took power in Kigali in July 1994, the judicial system no longer existed. Most of the country’s magistrates had been killed or fled into exile. There were no longer any gendarmes, judicial police or judicial structures. A few weeks later, the communal lock-ups, prisons and other improvised detention centres were overflowing with tens of thousands of people accused of participating in the genocide that left between 600,000 and 1 million people dead between April and July 1994, according to different estimates.
Two years later, Rwanda published the “Organic Law of 30 August 1996 on the organization of prosecution of offences constituting the crime of genocide or crimes against humanity committed between 1 October 1990 and 31 December 1994”. It thus gave itself a broader temporal jurisdiction than that of the UN’s International Criminal Tribunal for Rwanda (ICTR) set up after the genocide, which covered only the period from January 1 to December 31, 1994.
On the history of the genocide, there are two different opinions about when it started. While the international community considers that the genocide started on April 6, 1994, after the assassination of Hutu President Juvenal Habyarimana, the new Rwandan authorities claimed that anti-Tutsi pogroms, which had been taking place since the outbreak of the RPF rebellion in October 1990, were part of a genocidal plan that had been in place for many years.
Rwanda, ICTR, Belgium, France and Switzerland: a few emblematic trials on the genocide in Rwanda.
A 1996 Act established a specialized chamber within each court of first instance to deal with genocide cases. It introduced the procedure of confession and guilty plea in exchange for reduced sentences, and put genocide suspects into categories according to the seriousness of their alleged crimes.
The first trials started at the end of 1996. Among the difficulties pointed out by observers was a lack of defence lawyers in many of the cases. “Implementation of the right to defend oneself and to be assisted by a lawyer of one’s choice, free of charge if necessary, has not always been easy in the context of genocide litigation,” said Lawyers without Borders (ASF) in its report “The crime of genocide and crimes against humanity before Rwanda’s ordinary courts”. “At the beginning of the trials, some of the courts were reluctant to grant postponements to suspects who appeared alone at the first hearing and expressed a desire to be assisted by a lawyer. The judges frequently described such requests as delaying tactics.”
At the time, even Rwandan lawyers were reluctant to defend genocide suspects. Courageously, ASF made lawyers available to some of the accused and civil parties, but demand far exceeded the number. In some cases the judges, who were not necessarily trained jurists, reversed the burden of evidence, requiring that the accused prove his or her innocence, ASF also notes.
Eight individuals indicted by the ICTR are still officially at large. In case of arrest, five of them would be sent for trial in Rwanda.
The eight men that escaped the ICTR
“Finding and arresting the fugitives is a priority for my office. Cooperation with States remains key for us to implement this residual function as quickly as possible,” Serge Brammertz, prosecutor of the MICT mechanism that performs the “residual” functions of the International Criminal Tribunal for Rwanda (ICTR), told the UN Security Council last December. Twenty-five years after the genocide in Rwanda, eight people indicted by the ICTR are still on the run.
Many other judgments followed, involving illiterate people and academics, rich and poor, minors and adults, men and women. It is estimated that some 9,000 people were tried by the specialized chambers. But the government was already well aware that it would take several decades, at a staggering cost, to try all detainees (the International Red Cross published a figure of 144,000 genocide suspects in prison, thousands of whom would die before they were tried).
And so in 1998, consultations were opened about drawing on the Rwandan tradition of Gacaca (grass) courts, in which village elders seen as people of integrity held outdoor hearings to settle disputes. The Gacaca courts, a contemporary criminal version of a tradition adapted to circumstances, were about to be born. They would go on to mark international judicial history.
The first law on these community-based courts was published in March 2001. It was modified several times to take account of difficulties in implementation and adapt with pragmatism to evolving needs. The aims were to speed up trials, establish the truth through community participation and reconciliation. Confession was at the heart of the process. As volunteers, those called to serve in the Gacaca were elected by their community on the basis of integrity alone.
The work of these courts began on June 18, 2002, with the launch of the “information gathering” phase on how the genocide had unfolded. This was a kind of public investigation, often under blazing sun, with the participation of witnesses and victims. The trials themselves began in March 2005 in a few pilot jurisdictions, before spreading throughout the country.
Western countries try Rwandan genocide suspects
Where was the genocide of Rwanda’s Tutsis put on trial? How many people were tried? Here is the geography and the maths of an unprecedented criminal justice undertaking.
2 million cases, 1 million people tried
More than 12,000 gacaca courts were set up across the country at all administrative levels, in all communes, on thousands of hills. A gigantic judicial undertaking was taking place, unprecedented in history.
When President Paul Kagame closed the Gacaca in June 2012, these courts had heard, according to an official report, the titanic figure of 1,958,714 cases involving 1,003,227 individuals, the vast majority of whom were found guilty. Guilty of what is not always very clear. According to case statistics (different from individuals, for whom no data are available), 1,320,634 (67.5%) of them related to looting and destruction of property. For the category of murder, torture, abuse and physical violence, a total of 577,528 cases were tried (29%). The acquittal rate, 37%, is much higher than for property theft (4%). Finally, in the first category – that of organizers, authorities and perpetrators of sexual violence – there were 60,552 cases tried (3.5%), with a 12% acquittal rate.
“There were prison sentences ranging from 5 to 10 years, life sentences in 5 to 8% of the verdicts and acquittals for 20 to 30%,” said Justice Minister Tharcisse Karugarama. President Kagame, speaking in the country’s largest stadium, said that “the gacaca process has reaffirmed Rwandans’ ability to find solutions to their own problems”. “Gacaca justice has been directly administered by the people for the people,” he continued, saying that this system “has served the Rwandan people well and even beyond our expectations. There was no better alternative”.
In a report published in May 2011 as the Gacaca were finishing their trials, US-based NGO Human Rights Watch (HRW) concluded that the legacy of this justice on the grass was mixed. It recognized certain achievements, such as the holding of rapid trials with the participation of the people, reduction of the prison population and a better understanding of what had happened in 1994. But HRW said there were “multiple shortcomings and failures with gacaca: basic violations of the right to a fair trial and limitations on accused persons’ ability to effectively defend themselves; flawed decision-making (often caused by judges’ ties to the parties in a case or pre-conceived views of what happened during the genocide) leading to allegations of miscarriages of justice; cases based on what appeared to be trumped-up charges, linked, in some cases, to the government’s wish to silence critics (journalists, human rights activists, and public officials) or to disputes between neighbors and even relatives; judges’ or officials’ intimidation of defense witnesses; corruption of judges to obtain the desired verdict; and other serious procedural irregularities”. According to HRW, some victims of rape during the genocide would also have liked their cases to remain within the ordinary courts, better equipped to protect personal information (a 2008 amendment extended the jurisdiction of the Gacaca to include sexual crimes committed in the context of the genocide).
The NGO also criticized the Rwandan government for not having included crimes committed by some elements of the RPF in the jurisdiction of the Gacaca. Ruling out putting these crimes – which Rwandan prosecutor Gerald Gahima qualified in a 2001 interview as war crimes and crimes against humanity – on the same level as genocide, the authorities decided that only cases linked to the genocide would be tried.
Responding to this criticism, Rwandan minister Karugarama accused HRW of not taking seriously “all the efforts of all Rwandans working together to promote justice and reconciliation”. He urged people to “take account of the enormity of the challenges Rwanda faced after the genocide” and insisted that “the choice to hold Gacaca must be seen in its context. After the genocide, the country was devastated and had very few people with a legal training. Gacaca was a response to that”.
The rest of the world does its part
In parallel with the judicial work done in Rwanda, the international community, anxious to redeem itself after its abandonment of Rwanda in 1994, established an International Criminal Tribunal for Rwanda (ICTR), based in Arusha, Tanzania. Starting with a renewable four-year term, it lasted twenty-one years, charging 90 individuals, effectively prosecuting 75 and judging 73. Among them was the only non-Rwandan to have been convicted of incitement to genocide, the Italo-Belgian Georges Ruggiu, a former Belgian social security agent who came to Rwanda a few months before the genocide and ended up as a radio host on RTLM, which became known throughout the world for its calls for murder and its sinister contribution to the massacres. Above all, the ICTR made it possible to arrest and try several army leaders, many government and political party leaders, prefects, mayors, media figures, church and militia leaders, as well as a few business people.
The International Criminal Tribunal for Rwanda (ICTR), established in November 1994 by the United Nations and based in Arusha, Tanzania, officially closed its doors in December 2015. In twenty years, it indicted 89 Rwandans and 1 Belgian for their role in the genocide. 75 of them were effectively prosecuted, 73 of whom were tried. 9 pleaded guilty and 14 were acquitted.
20 years of ICTR trials, the highlights
Finally, in the past 20 years some ten countries – Switzerland, Belgium, France, Sweden, Germany, Norway, the Netherlands, Finland, the United States and Canada – have tried 22 people responsible for the genocide under the principle of “universal jurisdiction”. Other trials are pending in Belgium and France.
The end of the Gacaca and the closure of the ICTR do not, however, mark the end of the trials for genocide, an imprescriptible crime. In Rwanda, a law has been passed for the judicial management of the post-gacaca period. According to this text, new genocide prosecutions are conducted in the ordinary courts. These procedures, which are rare and often go unnoticed, involve suspects returning from exile after the closure of Gacaca. In addition, a special chamber has been created to try accused persons returned or extradited by third countries or surrendered by the former ICTR, which concluded its work at the end of 2015.
Deportations and transfers: who gave over genocide suspects for trial, and to which country?
And so the genocide of the Tutsis in Rwanda is by far the most judged in history, even if it will “never be completely judged”, as jurist and essayist Antoine Garapon noted in a recent preface to the first book by François-Xavier Nsanzuwera, who was the first Rwandan Attorney General after the massacres. It has been a unique and extraordinary judicial enterprise in which Rwanda in particular defied the accepted idea that there cannot be mass justice after a mass crime.
Information and data in this special report come from direct coverage and research from Justiceinfo reporters. As indicated, additional sources include reports from gacaca courts, reports from Human Rights Watch and ASF, ICTR.