Truth passes through fire and does not burn An Analysis of discourse and transitional justice in post-genocide Rwanda

Universiteit van Amsterdam (UvA) Master History: Holocaust and Genocide Studies, 2016-2018 Mark van de Beld Mentor: Thijs Bouwknegt Second Reader: Nanci Adler 16 November, 2018

1 Foreword Before you lies my Master’s thesis, the result of a research into post-conflict narrative and discourse in Rwanda. This thesis is written to complete the Master’s program Holocaust and genocide studies at the University of Amsterdam. Genocide and the events in Rwanda specifically have fascinated me ever since I took a course on the subject ‘Genocide after 1945’ in the second year of my Bachelor. Despite this fascination the writing of this thesis has proven to be quite the challenge for me. It is therefore with appropriate pride that I deliver this product of my labour. I could not have completed this thesis without the help of some important people. I would like to thank Thijs Bouwkegt especially. For his patience, his guidance and making it possible for me to enrol in this Master program and participate in a study trip through Rwanda. I would also like to thank Yte Elbrich Schukking for supporting me through all the difficulties I encountered and for being a sparring partner. Finally, I would like to thank my parents, my family and my friends, who collectively provided enough pressure and comfort for me to carry on.

Wishing you much reading pleasure, With kind regards,

Mark van de Beld Utrecht, 16 November 2018

2 Abstract This Master’s thesis looks at the historiography of Rwanda’s genocide in an attempt to establish how and why the debates that are found within it are created and perpetuated. This thesis uses frameworks concerning the abuse of history and different notions of truth to look at the current debates in the historiography. Doing so, it demonstrates that history is abused by the Rwandan government through their attempts at influencing the possibilities of research and efforts to censor unfavourable outcomes. After that a thorough analysis of the transitional justice mechanisms that were used in Rwanda, especially the Gacaca courts, follows. Using the same frameworks, it is consequently displayed that the meddling of the government of Rwanda ICTR proceedings and influencing of national debates through Gacaca courts and special laws is abuse of history. Furthermore, the truth that is found through these transitional practices is a mixture of different notions of truth but resembles most closely an effectual truth.

3 Contents

FOREWORD 2

ABSTRACT 3

CONTENTS 4

INTRODUCTION 6

CHAPTER ONE: THEORETICAL FRAMEWORKS OF THE ABUSE OF HISTORY AND TRUTH 8 INTRODUCTION 8 A MORAL CODE FOR HISTORIANS 9 CONCEPTS OF TRUTH 10 CONCLUSION 13

CHAPTER TWO: A WEB OF NARRATIVES OF THE RWANDAN GENOCIDE 14 INTRODUCTION 14 CONTENTION 15 WHO ASSASSINATED THE PRESIDENT? 15 PLANNING THE GENOCIDE 17 VICTIMS: WHO AND HOW MANY? 18 PERPETRATION IN THE GENOCIDE 20 THE CASE OF RPF CRIMES 21 CONSENSUS 22 THE ROOTS OF ETHNICITY 23 COLONIAL INFLUENCE 24 TEMPORAL BOUNDARIES 24 COURSE AND EXTENT 25 HALTING THE GENOCIDE 25 CONCLUSION 26

CHAPTER 3: TRANSITIONAL JUSTICE AND TRUTH IN RWANDA 30 INTRODUCTION 30 TRANSITIONAL JUSTICE, AN OVERVIEW 31 TRANSITIONAL JUSTICE MECHANISMS USED IN RWANDA 33 THE INTERNATIONAL CRIME TRIBUNAL FOR RWANDA 34 DOMESTIC COURTS 36 LAWS AGAINST DIVISIONISM AND GENOCIDE IDEOLOGY 37 THE CREATION OF THE GACACA COURTS 39 AN ANCIENT CUSTOM 39 REVAMPING THE OLD CUSTOM 40 THREE LEADING PRINCIPLES 42 CATEGORIZATION OF GENOCIDE CRIMES 43 TRUTH IN GACACA COURTS 44 EVALUATION OF THE GACACA COURTS 45 RELIANCE ON ACCUSATIONS 46 MICRO MECHANICS 47 RPF CRIMES 48

4 GACACA COURTS AS A VEHICLE FOR RPF POWER 49 ANALYSING THE USE OF HISTORY AND KINDS OF TRUTH 53 CONCLUSION 54

CONCLUSION 55

BIBLIOGRAPHY 59

5 Introduction The release of Judi Rever’s book In Praise of Blood: The Crimes of the Rwandan Patriotic Front in March of this year has lead to controversy.1 In this book Rever details how members of the Rwandan Patriotic Front (RPF), the organization of Tutsi diaspora that ended the Rwandan genocide in 1994 and has been in power even since, have committed genocide against Hutu both during their struggle to topple the genocidal regime and afterwards in the Democratic Republic of Congo.2 While suspects of the Rwandan genocide have extensively been put on trial, these crimes committed by the RPF have been left unpunished. This counter-narrative to the official version of history that is propagated by Rwandan officials gave rise to a heated debate as people took to Twitter to speak out about Rever’s work.3 Some lauded Rever’s work, but most voiced their dissatisfaction, calling Rever biased and accusing her of working for genocide deniers and enemies of President Kagame. In Praise of Blood was nominated for the Hilary Weston Writer’s Trutst Prize for Nonfiction.4 This year marked the 24th anniversary of the Rwandan genocide, a genocide marked by ethnic hatred and intimate violence. During a hundred days in 1994, Rwanda was the stage to a genocide in which predominantly Hutu were swept up by political elites to kill predominantly Tutsi. These two identity groups were at odds with each other ever since colonizers instituted a minority rule by the Tutsi and solidified the social classes into ethnicities. As a wave of violence swept the country many victims were killed up close and personal with agricultural instruments at roadblocks and places were they gathered. 24 years later, there are still numerous debates surrounding the genocide. The genocide has proven to be a popular subject of academic and journalistic research. Rwanda has also been home to a range of transitional justice mechanisms that have produced factual knowledge of what happened during the lead up and during the genocide itself. Yet, the historiography of Rwanda’s genocide is marked by multiple points of contention. The reception of Rever’s work moreover shows how heated these debates can get. The debates are sings that a common truth about the past has not been agreed upon by all parties. This begs

1 Judi Rever, In Praise of Blood: The Crimes of the Rwandan Patriotic Front (Random House Canada, 2018). 2 Interview with Judi Rever, CBC Radio, 2 April 2018. 3 See the thread following Rever’s tweet to promote her book: “My book, In Praise of Blood, exposes the crimes that Paul Kagame and his Rwandan Patriotic Front got away with. https://www.amazon.ca/exec/obidos/ASIN/0345812093/prhca-20 …” (@JudiRever, March 23, 2018). 4 “Awarding the top Canadian nonfiction of the year,” Writer’s Trust Canada, accessed November 12, 2018, https://www.writerstrust.com/awards/hilary-weston-writers-trust-prize- for-nonfiction.

6 the question what truth actually is and how it is created or formed. Moreover, history is a discipline of nuance and interpretation that therefore naturally has debates. These characteristics also leave history open to be used of ulterior motives. This thesis will not focus on the genocide of Rwanda on itself, but rather the discourse and historiography that has surrounded the genocide since its start. This focus on the historiography will provide knowledge of what others have to say about the genocide. In this light, this thesis will make use of publications on the Rwandan genocide and look into different transitional justice mechanisms, in particular the Gacaca courts system, that were practiced in post-genocide Rwanda. These institutions have provided information about the genocide just as scholars have and can therefore hold information concerning the creation of narratives. In order to be able to make claims of these sources and processes this thesis will look into theoretical frameworks about use and abuse of history and different understandings and definitions of truth. Research into these debates is of interest because of the implications they have on the Rwandan people and their government. The RPF has ruled Rwanda ever since their victory over the genocidal regime. President Paul Kagame currently is on his third term after a change to the constitution. This position has potentially given the political elite considerable power to influence the shaping of the genocide’s narrative both inside Rwanda’s borders and outside. If truth is established through an open, democratic debate that gives room to multiple viewpoints and public acknowledgement it can help to heal the nation.5 The continuation of debates and especially the tone with which it happens now can be an obstruction to a lasting stability in Rwanda. Central to this thesis is the following question: ‘what are the major debates about the Rwandan genocide and in what way has transitional justice contributed to them?’ To come to an answer to this question this thesis’ first chapter shall give an outline about the use and abuse of history along with an analysis of different kinds of truth. The second chapter will focus on the historiography, accompanied by the question ‘what are the major debates found in the historiography of Rwanda’s genocide and what interests are connected to the sides of these debates?’ The third chapter will focus on some of Rwanda’s transitional justice mechanisms using the question ‘in what way has transitional justice contributed to the shaping of narrative about the genocide?’

5 Truth and Reconciliation Commission, Truth and Reconciliation Commission of South Africa Report: Volume One (Cape Town, 1998), 112 – 114.

7 Chapter one: Theoretical Frameworks of the Abuse of History and Truth Introduction To come to an answer to the main question of this thesis, a demarcation must first be given of the theoretical frameworks that stand at the core of the question itself. This will happen in the following chapter. First, attention will go to the process of making history itself. There are numerous ways in which that process of writing history can be influenced. Using the theoretical framework brought forward by Belgian historian Antoon de Baets in his book Gebruik en Misbruik van de Geschiedenis (Use and Abuse of History), I will demarcate what in this thesis will be understood as abuse and irresponsible use of history, as well as how and why it occurs.6 Second, the focus will shift to truth. A narrative, or a version of history, is made up out of a series of statements and findings. These are claims on truth and together they make one narrative differ from another. But what exactly does truth mean? The final report of South Africa’s Truth and Reconciliation Commission has put forward four different kinds of truth.7 And coming back to Antoon de Baets again, his book also mentions three notions of truth. Additionally, Bert Ingelaere and Phil Cark each have, in their study of the Gacaca courts, written on the concept of truth as well.8 I will use these four works to describe the different notions of truth and their characteristics. Some of them will have slightly overlapping definitions, while others are more unique. In mapping these definitions this chapter will help to come to an understanding of what truth is and how it relates to narratives. This understanding will subsequently be of use in the following chapters, where the many narratives on Rwanda’s genocide and their points of contention will be analysed and where the narrative-shaping properties of transitional justice mechanisms in Rwanda will be examined. As is stated in the introduction to this thesis, there exists a lively debate on Rwanda’s genocide that can be roughly drawn into two sides (the ‘conventional’ or official narrative that is most commonly known and generally favours the RPF’s role during and after the genocide, and the ‘counter’ narrative that is critical the actions and motives of the RPF during and after the genocide). Due to the RPF’s attitude towards criticism, which will be described more

6 Antoon de Baets, Gebruik en Misbruik van de Geschiedenis (Amsterdam: Boon, 2008). 7 Truth and Reconciliation Commission, Truth and Reconciliation Commission of South Africa Report: Volume One (Cape Town, 1998). 8 Bert Ingelaere, Inside Rwanda’s Gacaca Courts: Seeking Justice after Genocide (Madison: University of Wisconsin Press, 2016); Phil Clark, The Gacaca Courts: Post-Genocide Justice and Reconciliation in Rwanda (Cambridge: Cambridge University Press, 2010).

8 thoroughly in this thesis’ second chapter, any divergence from their narrative on the genocide – and by extension the Gacaca courts – is treated as an attack on the RPF and Rwanda’s peace. Raising the stakes to such a high point has lead to a situation wherein Rwanda’s past is being scrutinized by researchers from all kinds of backgrounds. The result is that claims about history and truth are being made by people who in most cases have not enjoyed any historical training. This leaves the door open for the abuse of history – the use of history with the intent to deceive.9 If one is to make an analysis of the debates surrounding the Rwandan genocide and the Gacaca courts in this light, it is needed to first come to an understanding of what use and abuse of history entails.

A moral code for historians In his book Gebruik en Misbruik van de Geschiedenis (Use and Abuse of History), Antoon de Baets writes on the multiple uses of history, focussing on the wrong ones in particular. Inspired by the moral codes of judges and journalists and moved by the lack of such a code for historians, he sets out to define a system of right and wrong for historical research.10 The first important distinction he makes is that between abuse and irresponsible use of history: the former is the usage of history with the intent to mislead, while the latter means a mere misleading or negligent use of history. The differentiating aspect between abuse and irresponsible use therefore lies in the intent of the action – not unlike the legal definition found in the Genocide Convention. But where this aspect of intent hampers the practicality of the legal term genocide, De Baets argues that it is a crucial element of his definition. He opposes reframing his definitions to focus on the consequences of the act because he sees the act in itself as damaging, regardless of any apparent victims. By sticking with intent as a key factor in the abuse of history, De Beats affirms that he is constructing a moral code rather than a legal one. In doing so, he is not preoccupied with any judicial consequences of his work.11 De Baets outlines his theory with a mental and a material component, where the mental element is related to the mind of the abuser and the material element to the conduct itself, its consequences and the circumstances in which it takes place. Focussing on the material element first, De Baets discerns three levels on which abuse can take place. On the heuristic level, abuse takes place when sources are improperly collected. In practice this can occur prior to research through the erroneous interference with cultural heritage or the

9 Antoon de Baets, Gebruik en Misbruik van de Geschiedenis, 26. 10 De Baets, 13. 11 De Baets, 26 –28.

9 (illegal) prohibiting of access to archives. During the research this occurs in the undue destruction, collection and usage of sources and making sources up. On the epistemological level, abuse takes place when non-scientific work is altered – through omitting, changing or making data up or twisting existing theories – to pass it of as scientific. This mainly happens during the research during the analysis of sources through undue descriptions of used sources and using intentionally faulty logic, rhetoric or interpretation of sources. On the pragmatic level, abuse happens when historians lie about the status or authorship of their work. It also entails when the reception of the results are influenced by censors, ordering parties and parties otherwise involved in the research, editors, publishers and peer reviewers.12 The other component to De Baets’ theory is the mental element. This is connected to the motives behind any abuse or irresponsible use of history. De Baets states that there exists a multitude of motives for the (ab)use of history and divides them up in two major groups. The first group of motives are what he calls scientific motives and include primary-scientific and secondary-scientific. The second, much larger group of motives consists of non-scientific or instrumental motives. These include educational, moral, didactic, cultural, philosophical, religious, metaphysical, racial/ ethnic, therapeutic, leisurely, literary, aesthetical/ artistic, psychological, economic, professional, ideological/ political/ social and judicial motives.13

Concepts of Truth Another key factor in making sense of the many claims that are being laid on Rwanda’s history or in assessing the effectiveness of the Gacaca courts’ truth-finding capacities is to have an understanding of what truth exactly is. When looking up the definition of truth, one often finds descriptions along the lines of ‘the quality of being true’, or ‘the real facts about a situation, event, or person’. 14 In this light, truth seems unquestionable and absolute; something that is to be established once and then never questioned again. Truth in this matter can be found in mathematics or hard sciences. For instance, any sane person accepts the fact that one and one equals two or that gravity causes objects to move. But in the former sentence lays a crucial element to truth: it needs to be accepted. If a truth needs to be accepted upon to exist, a problem arises when one is looking for truths of the past. When sources are thinly stretched and leave room for interpretation, truth starts to lose its verified and indisputable character. Truth additionally becomes more subjective when it concerns important events, or when individuals stand to win or lose

12 De Baets, 29 – 34. 13 De Baets, 38 – 40. 14 Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/truth, accessed May 30th 2018.

10 something by their interpretation of the source material. Establishing truth in such an environment is challenging to say the least. A primary example of an effort to establish truth despite such a challenging climate is the Truth and Reconciliation Commission of South Africa.15 This Truth and Reconciliation Commission (SATRC) was instituted in the final years of the twentieth century to heal the nation after it had put an end to the Apartheid regime in 1994.16 In its final report, the SATRC acknowledges the complexity of the concept of truth and describes four notions of it that emerged from many debates within the Commission. The first of these notions of truth is the factual or forensic truth. This is a truth based on factual, corroborated evidence or reliable, impartial and objective sources. It answers the basic questions of what happened to whom, where, when, how, and who was involved. It moreover describes the causes, patterns and context of the violations concerned. The forensic truth serves to reduce the number of lies that can be circulated unchallenged in the public discourse. The second notion of truth purported by the SATRC is the personal or narrative truth. Based on individual storytelling, this notion is based in personal recollections. It can contribute to the process of reconciliation by ensuring that the truth includes the validation of those individual experiences of people who previously had been silenced. The third notion of truth is the social truth. This is established through interaction, discussion and debate. Essential herein is the public aspect of the process of establishing the truth. Social truth is about having a transparent and democratic discourse that is broadcasted to the public so that it can contribute to the reinstating of essential norms of social relations between people. Finally, the SATRC established the healing and restorative truth. This truth places the facts and what they mean within the context of human relationships – both between civilians and between the state and its civilians. Acknowledgment plays in important part in this truth, as the full and public acknowledgement of the past can lead to the restoration of the dignity of victims and instil in the public a sense of ‘never again’.17 In his book providing his before-mentioned frameworks on the use and abuse of history, De Baets also offers some insights on truth. He gives three concepts of truth, the first one being the factual truth. This truth is similar to the factual or forensic truth as described by

15 Truth and Reconciliation Commission, Truth and Reconciliation Commission of South Africa Report: Volume One (Cape Town, 1998). 16 Truth and Reconciliation Commission, Truth and Reconciliation Commission of South Africa Report, 24. 17 Truth and Reconciliation Commission, Truth and Reconciliation Commission of South Africa Report, 110 – 114.

11 the SATR. It is what De Baets calls a scientific and objective sense of truth that corresponds with the realities of the past that it describes. De Baets’ second notion of truth is the moral truth. He states that a moral truth does not necessarily describe what has happened in the past, but much rather what should have happened. This kind of truth relies on the status of its origin, as in this notion a statement is considered true if it is purported by a reliable person. The third and final of De Baets’ notions of truth is the orthodox truth. In the orthodox notion truth is somewhat conservative, as the acceptance of this truth relies on the seniority and authority of its claims.18 As Bert Ingelaere is analysing the Gacaca courts in Rwanda, he also starts to deliberate on kinds of truth. Ingelaere acknowledges and uses the notions of truth that were produced by the SATRC.19 However, he also adds to these four a fifth notion: that of the effectual truth. In the effectual truth, true is that which has the desired consequences given the circumstances. This makes effectual truth inherently subjective, as what is accepted to be effectually true depends on the particular time, place and social forces at work while recording the truth.20 Finally, like the aforementioned authors, so too does Phil Clark work out concepts of truth. Similar to Ingelaere he does so in context of his research on the Gacaca courts. Clark provides us with three notions, the first being the therapeutic truth. This truth is intended to facilitate healing and is based on personal and emotional recollections of individuals. Clark’s second notion is that of the legal truth. As it is based on evidence delivered to prove innocence or guilt, this legal truth corresponds with the SATRC’s and De Baets’ notion of factual truth. The third notion of truth as written down by Clark is the restorative truth. This truth entails expressing or shaping of truth in order to restore relationships. It thus has a healing element, but provides healing to an entire community while the therapeutic truth heals on an individual level.21 Besides these notions, Clark also writes about three processes related to truth finding that can be distinguished. The first one is truth telling and refers to the public articulation of the truth. This often happens in legal settings at tribunals, or truth commissions. Truth hearing is about the reception of truth telling. Along with truth speaking, this makes a dialogue of post-conflict truth. Finally, truth shaping is the process of reshaping or remodelling the post-conflict dialogue to cater for something other than solely facilitating

18 De Baets, 54. 19 Ingelaere, Inside Rwanda’s Gacaca Courts, 161 – 162. 20 Ingelaere, 12, 143. 21 Clark, The Gacaca Courts: Post-Genocide Justice and Reconciliation in Rwanda, 187.

12 healing. Truth shaping can have nefarious motives: Clark mentions truth shaping can be attempted by political elites to cover up their own crimes.22

Conclusion This chapter was all about the theoretical frameworks that are needed to come to an answer to the main question of this thesis. From the moral code for historians as purported by Antoon de Baets, that contemplates the different ways and motives in which irresponsible use and abuse of history occur, to the deliberations of South Africa’s Truth and Reconciliation Commission, De Baets, Bert Ingelaere and Phil Clark, these frameworks should be kept in mind when reading chapters to come. In Chapter Two, I will write on the historiography of Rwanda’s genocide and analyse the points of contention and points of consensus that are found in it. In an attempt to disentangle this web I will analyse the stakeholders involved with the points of contention. In Chapter Three, I will analyse the transitional justice mechanisms of post- genocide Rwanda, paying particular attention to the Gacaca courts. The frameworks and theories discussed in this chapter will be used in the following two chapters to analyse the findings and answer the sub-questions.

22 Clark, The Gacaca Courts, 34 – 35.

13 Chapter two: A web of narratives of the Rwandan genocide Introduction The previous chapter has elaborated on the frameworks of truth and the use and abuse of history. In the following chapter our attention will turn to Rwanda specifically. As Scott Straus mentions in his chapter on the historiography of Rwanda’s genocide in Dan Stone’s The Historiography of Genocide, ‘despite its relative recentness, the Rwandan genocide already has given rise to a very large body of work’.23 Throughout the same chapter by Straus it also becomes apparent that, while the many authors whom write on the genocide agree on broad range of aspects, the historiography also is home to multiple points of contention.24 While contention in and of itself is normal, when it comes to Rwanda’s past the debates around these points of contention are all but gentle. An example of such a debate is the argument that featured in Human Rights Quarterly between Luc Reydams and Raymond Debelle et al.25 What started with Reydams’ questioning of the functioning and motives of Ngo African Rights and its publication Rwanda: Death, Despair and Defiance26, turned into a back and forth filled with personal attacks and other fallacies. In his most recent addition to that debate, Reydams claims that there is a phenomenon in which critics of the Rwandan government or the official narrative on the genocide are denounced and intimidated by a group of what he calls ‘Friend of Rwanda in the West’.27 Central to this chapter is the question ‘What are the points of contention and consensus in the historiography of Rwanda’s genocide and how can the points of contention be explained?’ To answer this question the following chapter will look at the points of contention and consensus that are apparent in the literature and, in an attempt to make sense of the existence of the points of contention, analyse what can be gained from supporting one side. Doing so will not provide conclusive answers to the running debates, but rather explain why these debates continue to exist and who stands to gain from it. This chapter is structured in the following way: using the outline from Straus’ article, the points of contention in the literature will be listed first. Each of these points will be

23 Scott Straus, “The Historiography of the Rwandan Genocide”, in The Historiography of Genocide, ed. Dan Stone (London: Palgrave Macmillan, 2008) 517. 24 Straus, “Historiography”, 519 – 534. 25 Luc Reydams, “NGO Justice: African Rights as Pseudo-Prosecutor of the Rwandan Genocide,” Human Rights Quarterly 38 (2016), 547 – 588; Raymond Debelle et al, “Rebuttal to: ‘NGO Justice: African Rights as Pseudo-Prosecutor of the Rwandan Genocide,’ by Luc Reydams,” Human Rights Quarterly 40 (2018), 447 – 465; Luc Reydams, “Protesting Too Much: A Response to Linda Melvern et al,” Human Rights Quarterly 40 (2018), 466 – 473. 26 African Rights, Rwanda: death, despair, and defiance (London: African Rights 1995). 27 Reydams, “Protesting Too Much,” 466 – 467.

14 examined on its backgrounds, its contributors and the consequences that the opposing views hold, or in other words: why the contention exists on these specific subjects. This will then be followed by shortly dealing with the points of consensus. These points of consensus serve to demonstrate that the point of contention are not arbitrarily chosen and beg the question why contention exists on these exact points. Finally, the conclusion of this chapter will summarize the findings and tie them in with the main question of this thesis.

Contention The following section of this chapter will be devoted to the points of contention that dot the historiography of Rwanda’s genocide. In his chapter on the historiography of the Rwandan Genocide, Scott Straus, an American political scientist, provides a list of disputes found in said historiography. 28 This chapter will follow along with his summing-up of disputes, but will also add to it. In the following section the following points of contention will be treated: the debate surrounding who assassinated Rwandan president Habyarimana; the chronology debate, with the question of when the planning phase of the genocide started; the identity and number of victims; the identity of perpetrators; and de debate surrounding the extent of RPF crimes before, during and directly following the genocide.

Who assassinated the president? The first point of contention that will be analysed is the assassination of president Habyarimana on April 6 1994. The assassination, in which the president’s plane was downed by anti air rockets over Kigali, is widely accepted as the starting point of the genocide (more on this later). What remains a major point of controversy however is the question who bears responsibility for the murder. The question of who did it gained traction rather quick, as is exemplified in Alison Des Forges’ 1999 publication Leave None to Tell the Story: Genocide In Rwanda.29 Des Forges has tried to make sense of this shrouded event that started the genocide. She lists three most likely actors – the RPF, moderate Hutu parties and Habyarimana’s own circle (the akazu) – from which she deems the latter one as the most likely perpetrators.30 Gérard Prunier dedicated more work on this topic and dismisses claims that the French or Belgian governments were involved in the assassination – two theories expressed in the months following the downing of the plane by journalists and a Rwandan ambassador

28 Straus, “Historiography”, 530 – 534. 29 Alison Des Forges, Leave None to Tell the Story: Genocide in Rwanda (New York: Human Rights Watch, 1999). 30 Des Forges, 182 – 185.

15 respectively.31 Prunier also disqualifies the claim originating from a US-based Ugandan exile group and later chartered by the akazu that the RPF shot down the plane.32 In the first place because killing Habyarimana went against the interests of the RPF, for the signing of the Arusha Accords gave the RPF a good political settlement that Habyarimana seemed dedicated to uphold. Killing the president would jeopardize this achievement.33 Moreover, the RPF had not planned any military actions to profit from a temporary disrupted Rwandan government. It took two full days for the RPF to start fighting the regime, a lack of initiative that to Prunier proves the RPF’s innocence in assassinating Habyarimana.34 Just like Des Forges, Prunier points at the Hutu hardliners of the akazu as being the most likely perpetrators. First, because the akazu had been home to a number of extreme hardliners who sought to achieve total ethnic and political domination by killing all Tutsi and moderate Hutu. These extremists were in conflict with Habyarimana. Second, Prunier notes the prevalence of the notion of genocide in Kigali during 1993 and 1994. Death lists had been drafted and there were even articles and radio broadcasts that alluded to some special events in April of 1994. Third and most importantly, Prunier finds the speed and efficiency of the events following the assassination incriminating. Roadblocks were build by Interahamwe and houses were searched by Presidential Guard using death lists in less than an hour following Habyarimana’s death.35 On the other side stand writers like Scott Straus and André Guichaoua. Straus explains a contrasting opinion that is the result of interviews with a number of RPF defectors and a French investigation published in 2006. According to these sources, the plane of Habyarimana was not shot down by the akazu, but by the RPF itself. This way the triggered genocide served as a pretext for the RPF Tutsi in exile to overthrow the Rwandan government and take back the country for themselves. Three pieces of data are brought up to support this claim, namely the quickness with which the RPF reacted to the crash, the fact that after more than two decades of RPF rule in Rwanda no condemning evidence for the akazu has been found and the fact that the military top of Rwanda’s government also died in the plane crash, leaving its forces in disarray.36 Guichaoua stands with Straus and suspects the RPF of bringing down Habyarimana’s plane. When serving as an expert witness at the International Crime Tribunal

31 Gérard Prunier, The Rwanda Crisis: History of a Genocide (London: C. Hurst & Co., 2005), 213 – 215. 32 Prunier, The Rwanda Crisis, 215, 216. 33 Prunier, 220. 34 Prunier, 221. 35 Prunier, 222 – 225. 36 Scott Straus, “The Historiography of the Rwandan Genocide.” In The Historiography of Genocide, ed. Dan Stone (New York: Palgrave Macmillan, 2008), 530.

16 for Rwanda (ICTR), Guichaoua came across documents from high-level Rwandan officers detailing how the attack was launched, along with the mentioning of witnesses and participants. Incriminating as they were, ICTR prosecutor Carla Del Ponte decided not to follow up on these sources.37 Guichaoua writes that many of the names from these initial documents resurfaced in other independent research efforts. This has led to the concerning individuals becoming the targets of arrest, abduction and assassination in Rwanda, often trying to flee the country.38 The effort to suppress these individuals and their position within the RPF hierarchy are reasons for Guichaoua to suspect the RPF of assassinating Habyarimana.39

Planning the genocide There is another point of contention that is in a similar vein to the contention surrounding Habyarimana’s assassination. This debate focuses on the question whether and when the Rwandan government hatched the plan to commit genocide. When Straus wrote his chapter on the genocide’s historiography, the contention associated with this chronology debate lay in when the planning started. He lists multiple writers who advocated different dates, ranging from October 1990 to March 1994.40 Straus’ work was published in 2008 however and as he himself is quick to point out, the ICTR at the time had not yet finished its investigation into the matter.41 As of now, the ICTR has closed up shop almost three years ago and its legacy has been open for discussion. A more thorough analysis at the ICTR will follow in Chapter 3 but for now it is sufficient to review the case against Théoneste Bagosora. Bagosora was a colonel in the Rwandan Army (FAR) and was part of the hardliners in the akazu. During the period of instability following Habyarimana’s death, Bagosora played an important role in setting up the interim government that would rule Rwanda until the RPF victory.42 Guichaoua notes furthermore that the theory of planning of the genocide had taken on mythical proportions over the years, with a pivotal role ascribed to Bagosora.43 As such, he was indicted by the ICTR on counts of genocide, crimes against humanity and more importantly conspiracy to commit genocide. In its verdict the Chamber claimed that

37 André Guichaoua, From War to Genocide: Criminal Politics in Rwanda, 1990-1994 (University of Wisconsin Press, 2015), 145. 38 Guichaoua, From War to Genocide, 146. 39 Guichaoua, 147. 40 Straus, “Historiography”, 531. 41 Idem. 42 See chapter 7 of Guichaoua, From War to Genocide. 43 Guichaoua, From War to Genocide, 322.

17 while it could not exclude the possibility of the existence of a conspiracy to commit genocide prior to April 6th44, the evidence that was brought forward by the Prosecutor Office was circumstantial at best.45 It contended that acts like training militias and composing lists of RPF accomplices were fitting with the context of the war with the RPF and did not prove a conscious targeting of Tutsi civilians.46 As a result, the Chamber reasoned it was not convinced that ‘the Prosecution has proven beyond reasonable doubt that the four Accused conspired amongst themselves or with others to commit genocide before it unfolded on 7 April 1994.’47 The Chamber ruled Bagosora guilty of genocide, but freed him of the charge of conspiracy to commit genocide.48

Victims: who and how many? Following the discussions concerning Habyarimana’s assassination and the planning of the genocide, focus will now shift to contention within the historiography concerning matters during the genocide itself. The first point contention in this category concerns the victims of Rwanda’s genocide. As with many other point of contention, the differing opinions can be roughly drawn into two groups: the mostly Western scholars and researchers on one side and the largely regional or African scholars and the RPF on the other side. In the coming section the debates surrounding the identity and quantity of the victims will be detailed. One aspect of the contention surrounding the genocide’s victims is their identity. It is generally understood and accepted that the Tutsi formed the major target group, making up the vast majority of the total victims. According so some scholars however, besides the Tutsi there were also Hutu being prosecuted by the same génocidaires that killed Tutsi.49 While Tutsi were killed for belonging to a perceived ethnic group, Hutu that found their death did so for different reasons: Mahmood Mamdani points to the fact that Hutu killed Hutu out of political reasons. This happened in cases where moderate Hutu were killed for not supporting the Hutu Power movement or were suspected of backing the RPF. Alternatively, Hutu killed Hutu for social reasons with the aim to steal their property and land and redistribute it.50 Lee Ann Fujii and Linda Melvern argue along the same lines as Mamdani and add to the mix the

44 International Crime Tribunal for Rwanda (ICTR), The Prosecutor v. Théoneste Bagosora et al.: Judgement and Sentence (Arusha, 2008), para. 2107 - 2109, 538. 45 ICTR, The Prosecutor v. Théoneste Bagosora et al., para. 2110, 539. 46 ICTR, The Prosecutor v. Théoneste Bagosora et al., para. 2109, 539. 47 ICTR, The Prosecutor v. Théoneste Bagosora et al., para. 2113, 540. 48 ICTR, The Prosecutor v. Théoneste Bagosora et al., 568. 49 See Adam Jones, Genocide: A Comprehensive Introduction (Abingdon-on-Thames: Routledge, 2011) 352; Des Forges, 201; Straus, 526. 50 Mahmood Mamdani, When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda (Princeton University Press, 2002), 17 – 18.

18 role of regionalism. They remark the historical rivalry between the north and south of Rwanda and pose that some Hutu were also killed because they were prominent southern Hutu and therefore considered rivals of the interim government, whom originated from the northern parts of Rwanda.51 In contrast, the official narrative leaves little room for debate concerning the victims of the genocide, stating that only Tutsi found their deaths. In her book Whispering Truth to Power: Everyday Resistance to Reconciliation 52 Susan Thomson notes that the official representation makes a clear distinction between Hutu and Tutsi and the frame in which they were targeted. According to the narrative only Tutsi were killed in the genocide, while the Hutu that died at the same time were victims of politicide that died in massacres.53 This distinction relies on a specific understanding of the underlying reasons of the killings. In the official final report on the Gacaca courts of Rwanda54, an elaboration on this nuance can be found. In a section that aims to respond to criticism, the report brings forward the eight stages of genocide as theorized by Gregory Stanton.55 Following this theory, the report postulates that what occurred was a genocide against the Tutsi only. A stage like dehumanization did not occur against the Hutu; therefore they cannot be considered victims of genocide.56 It is here that the unique way in which the RPF uses information to suit their needs first appears in this thesis. I will pay more attention to this further down the line. Besides the victim groups of the genocide, the total number of victims of the massacres is another disputed point. A number of different estimations exist, generally ranging from 500,000 – made by Des Forges working with census figures from 1991 – up to 1,000,000 deaths – made by a post-genocide research charged by the RPF.57 According to National Commission for the Fight Against Genocide (CNLG) the exact number of victims

51 Lee Ann Fujii, Killings Neighbors: Webs of Violence in Rwanda (Ithaca: Cornell University Press, 2009), 48; Linda Melvern, Conspiracy to Murder: the Rwandan Genocide (New York: Verso, 2004), 170, 192. 52 Susan Thomson, Whispering Truth to Power: Everyday Resistance to Reconciliation in Postgenocide Rwanda (Madison: University of Wisconsin Press, 2013). 53 Susan Thomson, Whispering Truth to Power, 80. 54 National Service of Gacaca Courts, Gacaca Courts in Rwanda (Kigali, 2012). 55 Stanton’s theory is often circulated by government officials and institutions in their explanation of genocide, see for example the website of Rwanda’s National Commission for the Fight Against Genocide (CNLG), http://www.cnlg.gov.rw/genocide/background/?L=0 , for Stanton’s theory see: Gregory Stanton, “The 8 Stages of Genocide” (working paper, University of Yale, 1998). 56 National Service of Gacaca Courts, Gacaca Courts in Rwanda (Kigali, 2012), 189 – 190. 57 Des Forges, 15 – 16; Straus, 526.

19 sits at 1,070,014.58 Here again, the divide between Rwanda’s government and – by and large – Western academia is clear. Longman notes that the RPF and its supporters have continually advocated for the largest possible number of victims in order to underline its significance.59

Perpetration in the genocide A fourth point of contention is the level of perpetration in the genocide and the make up of the perpetrator group. Some scholars, like Mamdani, state that virtually all Hutu Rwandans were perpetrators in the genocide.60 This complies with the general conception that the genocide in Rwanda is unique for its massive popular support. Other authors, like Melvern and Longman, state that there was a cooperation effort between trained units of the army, police and militias during the many massacres.61 This means that ordinary Hutu – that is those locals who were not trained as militia or belonged to the interahamwe62 – only perpetrated on a small scale, often as a result of coercion. Longman specifically notes that participation in patrols and roadblocks by ordinary Rwandans was generally done rather reluctantly and that normally only trained groups committed large-scale bloodbaths.63 Memoires and testimonies that were collected by Jean Hatzfeld in his book Machete Season: The Killers in Rwanda Speak64 paint a picture that is situated somewhere in between full on participation of the population and perpetration by predominantly army, police and militia. The perpetrators he interviewed tell stories of being pressured into killing65, but also reveal that they were trained and supported by interahamwe.66 While anecdotal at best, Hatzfeld’s collection of interviews does illustrate that participation of civilians in the killings was widespread. Many of the interviewees recall massacres as group activities carried out by local communities under the supervision of interahamwe.

58 National Commission for the Fight Against Genocide, “Background”, http://www.cnlg.gov.rw/genocide/background/?L=0 . 59 Longman, 53. 60 Mamdani, 4. 61 Melvern, 182; Longman, 42. 62 Bert Ingelaere notes that the term interahamwe initially denoted members of the MRND youth wing, out of which a militia grew during Rwanda’s civil war. After the genocide the definition of the term expanded and started to include all those who were suspected of perpetration, Bert Ingelaere, “The Gacaca Courts in Rwanda”, in: International IDEA, Transitional Justice after Violent Conflict: Learning from African Experiences, eds. Luc Huyse and Mark Salter (Stockholm, 2008), 29. 63 Longman, 42. 64 Jean Hatzfeld, Seizoen van de Machetes: Het Verhaal van de Daders trans. Théo Buckinx (Amsterdam: Bezige Bij, 2004). 65 Hatzfeld, Seizoen van de Machetes, 30. 66 Hatzfeld, Seizoen van de Machetes, 44 – 47.

20 Some of the conclusions that can be derived from Hatzfeld’s work are compliant with what Scott Straus found during extensive research on the identity characteristics of the genocide’s perpetrators. From his interviews with confessed and sentenced perpetrators Straus has made the observation that perpetrators were in many aspects regular Hutu citizens.67 The perpetrators originated by and large from ordinary backgrounds and were ordinary in terms of age, education and occupation.68 Lee Ann Fujii backs up Straus’ findings with her research, stating that ‘joiners’, a term she uses to describe the low level perpetrators, where ordinary men and women.69 Moreover, Straus found that armed militias like the interahamwe played an important role in genocidal attacks but were, conversely to what Hatzfeld’s interviews implicate, only present in around a quarter of them.70 Finally, Straus concludes that in total around 7 to 8 per cent of the adult Hutu population (14 to 17 per cent of the adult male Hutu population) participated in the genocide.71 While this is still a reasonably big group of people, it stands in contrast to the aforementioned claims by Mamdani.

The case of RPF crimes The fifth and final point of contention that will be dealt with in this thesis is the one surrounding the crimes perpetrated by RPF soldiers during the genocide and the years following their victory. It is held as a fact by scholars and in general Western authors who researched the genocide like Thomson, Des Forges and Prunier, that in its war on the genocidal government the RPF committed a number of serious crimes themselves. Thomson writes that the RPF committed reprisal killings during the genocide, costing the lives of ten to fifteen thousand Hutu. Moreover, the RPF forfeited to save countless other lives regardless of ethnicity due to its focus on military victory instead of protecting civilians.72 Des Forges and Prunier furthermore give attention to the fact that out of the RPF controlled areas flowed many stories of forced disappearances, summary executions and massacres.73 Part of these stories can be turned down as efforts by the interim government to spread fear for the RPF.74 But the accounts offered by writers like Des Forges and Prunier are also accompanied by

67 Scott Straus, The Order of Genocide: Race, Power, and War in Rwanda (Ithaca: Cornell University Press, 2006) 96. 68 Straus, The Order of Genocide, 108. 69 Lee Ann Fujii, Killings Neighbors: Webs of Violence in Rwanda (Ithaca: Cornell University Press, 2009), 15 – 16. 70 Straus, The Order of Genocide, 114. 71 Straus, 118. 72 Thomson, Whispering Truth to Power, 81. 73 Des Forges, 701 – 722; Prunier, 266. 74 Prunier, 297 – 298.

21 official reports, as is the case with Kibeho, a place for refugees where, after the genocide, the RPF was responsible for a massacre of Hutu refugees and internally displaced persons.75 The Gersony Report is another example.76 A UNHCR mandated research endeavour confirmed systematic crimes committed by RPF soldiers during their advance but was barred from publication.77 The official narrative of the Rwandan government and its supporters vehemently denies all responsibility for civilian deaths during their war on the genocidal regime. Official documents like the RPF’s report of the Gacaca courts, state that some actions against civilians did occur during the war but that they were acts of individual soldiers without approval of the RPF leadership.78 Accusations concerning RPF campaigns following the end of the genocide, like the incursions into the Democratic Republic of Congo or the massacre at Kibeho, are written off, as these actions are deemed fundamental for peace and stability in post-genocide Rwanda.79

Consensus It is now demonstrated that the historiography of Rwanda’s genocide is home to a number of debates. These debates aim to settle who is responsible for the assassination of president Habyarimana; whether the genocide was planned and if so from when; the identity and number of the genocide’s victims; the identity and number of perpetrators; and the severity and nature of RPF crimes. Now that these points of contention genocide have been handled, the following part of the chapter will examine a number of points of that same historiography where consensus exists. These points of consensus serve to demonstrate that the historiography is not only composed of debates and confrontations. The fact that there exist a great number of concurrences in the writings on the genocide means that the contentions that

75 For a detailed report on the Kibeho massacre see: Kleine-Ahlbrandt, Stephanie T E. “The Kibeho Crisis: Towards a More Effective System of International Protection for IDPs,” Forced Migration Review 2 (1998), 8 – 11; Paul Jordan, “Witness to Genocide – A Personal Account of the 1995 Kibeho Massacre” accessed on 29 March 2018 http://main.anzacday.org.au/witness-to-genocide-a-personal-account-of-the-1995-kibeho- massacre. 76 Robert Gersony, “Summary of UNCHR Presentation Before Commission of Experts 10 October 1994: Prospects For Early Repatriation of Rwandan Refugees Currently in Burundi, Tanzania and Zaire” (United Nations High Commissioner for Refugees). 77 Victor Peskin, “Victor’s Justice Revisited: Rwandan Patriotic Front Crimes and the Prosecturorial Endgame at the ICTR” in Scott Straus and Lars Waldorf (eds.), Remaking Rwanda: State Building and Human Rights after Mass Violence (Madison: University of Wisconsin Press, 2011), 174. 78 National Service of Gacaca Courts, Gacaca Courts in Rwanda (Kigali, 2012), 190. 79 Longman, 57 – 58.

22 inhabit these same writings are peculiar and worth investigating. The upcoming section of this chapter will, partly based on Straus’ Historiography of the Rwandan Genocide, handle the consensuses on the following subjects: the roots of ethnicity; the influence of Rwanda’s colonial past; the course and extent of the genocide; including the start and finish of the genocide and the party accountable for the end of the genocide.

The roots of ethnicity Starting with the history of Rwanda itself, the primary consensus appears to be the nature of what later became Rwanda’s two major ethnicities. It is uncontested that these ethnic groups started out as identity groups that were primarily linked to occupation. In general, pastoralists were considered Tutsi while agriculturists were considered Hutu. It also implicated status, with Tutsi enjoying a higher status than Hutu. Mobility between these groups was common however, as fortune or disaster struck individuals. Another element of pre-colonial Rwanda on which most agree is the degree in which it was governed under a single monarchy. This monarchy was centralized and hierarchical. More importantly, it was one of the most powerful monarchies in the region and served as a unifying component of Rwandan society.80 Linda Melvern follows the consensus on what set Rwandan society on its destructive path. She acknowledges the solidifying of once fluid identity groups by colonial powers and post-independence political elites. A valuable addition by Melvern is her mention of the regional factors that were at play in Rwandan society both before and during the genocide. She remarks that Rwanda’s first two presidents came from respectively the southern and northern regions of the country and that they, especially president Habyarimana, relied increasingly on the kinsmen from their home regions.81 Timothy Longman also agrees on the notion that the categories Hutu, Tutsi and Twa were prevalent in Rwanda long before any colonizer crossed the border. He adds that the categories cannot be seen as ethnicities, especially since their people share a common culture, language and integrated communities. According to Longman, being Hutu or Tutsi was only one of a number of identifying parameters that also included lineage and region. He furthermore endorses the view that the ‘ethnicities’ were made more salient by Germany and Belgium, who based their policies on social Darwinist ideas and reshaped Rwanda’s history.82

80 Melvern, 4; Prunier, 20 – 23. 81 Melvern, 8, 12. 82 Timothy Longman, Memory and Justice in Post-Genocide Rwanda (Cambridge: Cambridge University Press, 2017) 38 – 40.

23 Gérard Prunier further supports the idea that there were many more ways to identify other than Hutu, Tutsi and Twa in Rwanda. He repeatedly refers to clans or tribes as being important identification markers that often consisted out of both Hutu and Tutsi.83

Colonial influence This role played by Germany and Belgium is another major point of consensus in the literature on Rwanda’s history. Widely endorsed is the insight that especially the Belgians tried to substantiate their racist ideas with pseudoscience and heavily supported on the Rwandan Tutsi as cliental leaders of the country to maximize Belgium’s profits from Rwanda. Gérard Prunier suggests that, while these policies and their supporting history were made up out of whole cloth, the Rwandan people over time came to internalize the imposed divide. He states that even the poorer Tutsi came to believe they were inherently more valuable than their Hutu peers. Hutu for their part, frustrated with continually being confronted with their supposed inferiority, started to hate all Tutsi, even those of the same social standing as themselves.84 Prunier even goes so far as to say that the synthesized colonial reality became such an important element of Rwandan society that it survived decennia of Western absence and became the foundation for post-colonial realities set by Rwandan elites. It eventually enabled the high level of perpetration during the genocide, as to Prunier the incorporated ideas and myths outweighed any possible material interests.85

Temporal boundaries Broad consensus also exists on the starting and ending points of the genocide. A clear beginning is recognized in the assassination of president Habyarimana. Returning from a convention for regional heads of state in Tanzania, his plane was shot from the sky as it was about to land. The Presidential Guard and other military elements came out of their barracks in the same night, shortly after the crash, to assassinate political opponents of the Hutu Power movement and prominent Tutsi.86 While this event is commonly marked as the triggering event of the genocide, there exists little agreement on the identity of the Habyarimana’s killers. This will later be examined more extensively. Like the start, the end of the genocide is also generally understood and accepted. It is dated on 17th July, the day that the RPF ended their fight against the genocidal regime by

83 Gérard Prunier, The Rwanda Crisis: History of a Genocide (London: C. Hurst & Co., 2005), 15, 24, 85. 84 Gérard Prunier, The Rwanda Crisis, 38, 39. 85 Prunier, The Rwanda Crisis, 40. 86 Des Forges, 187, 191; Roméo Dallaire, Shake Hands with the Devil: The Failure of Humanity in Rwanda, (Toronto: Random House Canada, 2003), 231; Prunier, 229.

24 officially toppling it. Having already taken Kigali, the RPF managed to subjugate the last stronghold of the interim government in Ruhengeri on this date.87

Course and extent Another point of consensus is the general course and extent of the genocide. Starting soon after the crash of Habyarimana’s plane the hardliners of the Hutu Power movement sprang in action, killing their political opponents and solidifying their own position. It is Gérard Prunier who points out that in this initial phase, these two categories almost completely overlapped each other. In Kigali, most people who belonged to the social and political elite were still Tutsi, by virtue of the past colonial favouritism.88 Once the members of the akazu felt they were sufficiently in control of the political landscape in Kigali they continued to form an interim government. Subsequently, they started to spread the violence against Tutsi and moderate Hutu throughout the country. Leaders of prefectures and towns who rejected the massacres were simply replaced with individuals who did support the killings. In doing so, the interim government was able to spread the genocide all over Rwanda by the 21st of April.89 Scholars point out that the scale of the massacres was enormous. Tutsi were targeted and killed all over Rwanda at roadblocks, their homes, in fields and at large gathering places. The victims were killed by military, paramilitary forces and militias, often accompanied or witnessed by neighbours and other ordinary Rwandans. Often times, the victims were humiliated, tortured or raped before their death and their bodies mutilated afterwards. At places were large groups victims sought refuge or fought back at their assailants, government forces or militias from adjacent communities where called in and often came to help. The government forces usually used their modern weapons to weaken the amassed victims and then left the locals and militias to finish the job with crude equipment.90

Halting the genocide A final and important point of consensus is the fact that the RPF played a crucial role in bringing an end to the genocide. Many scholars point out how the international community failed to act during the build up and course of the genocide. Melvern notes how the United Nations Security Council first held a specific meeting on Rwanda on the 3rd of May – almost a month after the assassination of Habyarimana. The

87 Des Forges, 302; Daillare, 474 – 475; Prunier 299. 88 Prunier, 232. 89 Melvern, 210. 90 Des Forges, 205 – 2016; Prunier, 253 – 255.

25 one thing on which the Council could agree was that a forceful intervention was out of the question. Sounds went up for a humanitarian mission or a symbolic delegation to Rwanda. Members of the Council also pointed to neighbouring countries and the Organization of African Unity as entities more suited to act.91 Even though General Dallaire of UNAMIR repeatedly called for reinforcements and a broader mandate, the UN failed to come up with any meaningful actions.92 Because there was little to no international intervention – Opération Turquoise initially backed the interim government but did not come in direct confrontation with the RPF– the conflict continued to encompass only two sides. 93 It is widely described as a war between the interim government of Rwanda and the invading RPF. Eventually the interim government lost the war, partly because it kept siphoning troops and supplies from the frontline to aid in the genocide.94

Conclusion This chapter has focussed on the historiography of the genocide in Rwanda. As is exemplified by the debate between Reydams and Debelle and al., the historiography is home to some discussions that fought out quite harshly. Now that the historiography of Rwanda’s genocide has been analysed both on its contention and consensus, the question remains why specific subjects remain contested while others do not. In the following paragraphs I will elaborate on why the identity of Habyarimana’s assassins, the planning of the genocide, the genocide’s death toll, the genocide’s perpetrators and the crimes committed by RPF soldiers are contested topics. Who stands to gain from what position on each of these cases? Looking into Habyarimana’s death, the short answer to the before-mentioned question lies in its reputation as the starting point of the genocide.95 Because the common acceptance of the assassination as the event that finally tipped Rwanda over into genocide, the question of responsibility for starting the genocide is inherently tied to the downing of the plane. For the RPF, whom have ruled Rwanda since their victory over the genocidal regime, it is unthinkable to bear any responsibility for starting the genocide. According to the RPF, they

91 Melvern, 222. 92 Dallaire, 359 – 360, 364 – 365. 93 Des Forges, 683; Prunier, 294. 94 Des Forges, 698. 95 The notion that Habyarimana’s death is the start of the genocide is accepted by amongst others: Straus, “Historiography”, 525; Guichaoua, From War to Genocide, 146; Jones, Genocide, 352; Thomson, Whispering Truth to Power, 80.

26 saw their homeland plunge into genocide and decided to save their people from devastation.96 In doing so they sacrificed their lives in order to save Rwanda and its people from genocide, the Second Republic97 and any colonialist, un-Rwandan remnants like ethnic salience and foreign interference that had continued to linger even after Rwanda’s independence.98 Due to the close ties between the RPF during the genocide and the RPF as a ruling party now, the current regime’s authority is inherently and closely connected to the purported moral high ground of its predecessors. Conversely, if it were true that the RPF actually was behind Habyarimana’s death it would fundamentally undermine its own claim to power. It would subsequently also cast doubts on many other elements of the official narrative and call into question the regime’s authority and policies. By all means there appears to be no conclusive evidence of an extensive planning phase of genocide. While Clark in his overview of the historiography states that the planning of the genocide was largely agreed upon, the ICTR verdict in the Bagosora trial has concluded that there is not enough proof that such a conspiracy existed. It is crucial to the RPF to have the conspiracy to commit genocide accepted as their narrative propagates a planned and continued effort destroy all Tutsi. To the side accused of this conspiracy it is important to have the theory proven wrong as it would lessen their punishable acts under the Genocide Convention. The salience of the discussion surrounding the genocide’s death toll is of a similar nature of the one surrounding the downing of Habyarimana’s plane crash. Since Rwanda’s current political elite draws so heavily on its role during the genocide, a higher number of victims is favourable to their case. This works in both a domestic and international context. Domestically, a high victim count amplifies the heroism of the RPF’s victory over the genocidal regime. As Longman argues, the genocide has been made to form a pivotal point in Rwanda’s history.99 In paring these two elements together, a large death toll enlarges the current regime’s prestige, authority, and right to rule. In the international context, a high number of casualties serves to amplify the severity of the genocide. The international community, having failed to purposefully act upon the genocide, is reminded of their inactions by the RPF. An example of this behaviour is found in the RPF’s mingling in ICTR

96 Longman, 56. 97 The First and Second Republic of Rwanda are the names given to Rwanda’s two regimes that ruled after the country gained independence in 1962, ruled by respectively Grégoire Kayibanda and Juvénal Habyarimana. 98 Longman, 57. 99 Longman, 37.

27 proceedings. 100 The bigger the official death toll, the bigger the leverage Rwanda’s government has over the international community. Cruvellier notes that the debate surrounding the number of victims has been so convoluted with politics that, ‘depending on which figures people use to estimate the number of deaths, they end up taking an ideological position.’101 The debate concerning the crimes committed by the RPF during and after their armed struggle with the genocidal regime has a, by now, recognizable pattern. Rwanda’s government has constructed a foundation history in which they fought for the liberation of Rwanda. Many RPF soldiers were killed during this war and their sacrifices are remembered and commemorated annually during the Day of Heroes.102 To accept that these heroes systematically and purposefully killed Hutu on the scale that is portrayed in for instance the Gersony Report would cause problems with their image, and in extend the RPF. In contrast, the victims of these crimes and their relatives stand to gain from a more nuanced approach to this debate. These people are predominantly Hutu, a group marginalized since the genocide.103 Ingelaere writes of the resentment that was caused by not trying these crimes in the Gacaca courts.104 This chapter has shown the multiple debates that continue to exist on Rwanda’s genocide. As described above, it appears that the RPF is a recurring party when analysing the stakeholders in these debates. Rwanda’s political elite stands to gain or lose from all the debates. It has a limited influence on the findings of research performed by foreign actors: authors who are critical on the RPF and its policies risk being barred from entering Rwanda,105 while others are rewarded with special medals commemorating their outstanding friendship with Rwanda.106 If we look back to the frameworks described in the previous

100 More on this in Chapter three, Peskin, “Victor’s Justice Revisited”, 174. 101 Thierry Cruvellier, Court of Remorse: Inside the International Criminal Tribunal for Rwanda (Madison: University of Wisconsin Press, 2010), 45 102 Longman, 53. 103 Jennie Burnet, “Whose Genocide? Whose Truth?” in Hinton, Alexander Laban & O’Neill, Kevin Lewis (eds.), Genocide, Truth, Memory, and Representation (Durham, NC: Duke University Press, 2009), 89. 104 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers (Cambridge: Cambridge University Press, 2010), 333. 105 A primary example is Alison Des Forges, who continued her endeavours even after this ban, Don Webster, “The Uneasy Relationship between the ICTR and Gacaca,” in Scott Straus and Lars Waldorf (eds.), Remaking Rwanda: State Building and Human Rights after Mass Violence (Madison: University of Wisconsin Press, 2011), 185. 106 Daniel Sabiiti, “How Igihango Medal Recipients Fell for Rwanda”, KT Press, November 19, 2017, http://ktpress.rw/2017/11/how-igihango-medal-recipients-fell-for-rwanda/.

28 chapter, this behaviour fits in the theory of De Baets as abuse of history. By influencing possibilities of research, like barring certain researchers from entering the country, and attempting to influence the reception of works, as shown by the preferential treatment of Linda Melvern, Rwanda’s government is abusing history both at the heuristic and pragmatic level. The RPF thus tries to influence the debates that are held outside its borders, but what about the debates within its borders? The next chapter to this thesis will look into this. Out of the transitional justice mechanisms that were employed in Rwanda, especially the Gacaca courts had the goal of establishing the truth about what happened during the genocide. In the first chapter, we have seen that there exist multiple definitions on what truth means. In this second chapter, we have seen that Rwanda’s government is a stakeholder in the major debates that surround de genocide’s historiography. The third chapter will analyse transitional justice mechanisms in Rwanda in an attempt to come to an understanding in what way they contributed to the narrative on the genocide.

29 Chapter 3: Transitional justice and truth in Rwanda Introduction The previous chapter was dedicated to making sense of the many different views that are held on the Rwandan genocide. It found that while the historiography is home to multiple commonly held truths, there are also a number of heavily fought-over points of contention. The following chapter will focus specifically on the period that followed the genocide. In the transition from civil war and genocide to the state it is today, Rwanda has seen a number of mechanisms put in place to help that process. In a broad term, these measures are called transitional justice. Transitional justice comes in many shapes and forms and is heavily influenced by contextual factors like the scale of the conflict, involved stakeholders and local traditions.107 Transitional justice in Rwanda has held mechanisms ranging from trials to national funds for survivors to re-education camps for perpetrators. This chapter will analyse four transitional justice mechanisms that concerned judicial handling of the genocide’s perpetrators. These are: the International Crime Tribunal for Rwanda (ICTR), the domestic courts, the so-called laws against revisionism and the Gacaca courts. With a emphasis on the Gacaca courts, this chapters aims to not only come to an understanding of how successful these transitional justice mechanisms have been, but also in what way they have contributed to the consensuses and contentions that have been described in the previous chapters. This chapter will be structured as follows. First, transitional justice will be shortly introduced with an historical overview of challenges and developments. Second, the focus will shift to Rwanda’s transitional justice measures with an analysis of the ICTR. While the tribunal has achieved some successes, there are also a number of faults to find in its efforts. Following the ICTR, Rwanda’s domestic courts will be handled shortly. After these two systems have been discusses, attention will be given to the set of Rwandan laws that prohibit genocide ideology and divisionism. While created to promote unity amongst Rwandans and prevent further genocide, I will contend that these laws serve to silence the regime’s critics and mute the debates about the genocide. Following these laws, the Gacaca courts will be analysed thoroughly. We will see how the RPF found an old Rwandan tradition for mediation and transformed it into a modern mechanism for traditional justice, how the Gacaca courts were set up according to three leading principles and how it was designed to function. Afterwards, the functioning of the Gacaca courts will be evaluated. In this section Gacaca’s reliance on testimonies will be considered, along with the micro mechanics at play during

107 Ruti Teitel, ‘Transitional Justice Genealogy’, in Harvard Human Rights Journal, (16 2003), 93.

30 Gacaca sessions, the impact of not handling RPF crimes and the way in which the Gacaca courts served to grow the RPF’s control over Rwanda’s countryside. Finally, a link will be made with Chapter one and the findings of this chapter will be analysed on potential use or abuse of history and different kinds of truth that are associated with Rwanda’s transitional justice mechanisms.

Transitional Justice, an overview The following section of this chapter revolves around the theories on transitional justice. It will give a few definitions from different scholars and show how its developments are regarded. This will provide the rest of this chapter with a sufficient background to analyse the different transitional justice measures in Rwanda. Transitional justice is a relatively modern element that concerns the, generally judicial, ways in which post-conflict societies transition into stable, often democratic but primarily peaceful societies. Ruti Teitel defines transitional justice as ‘the conception of justice associated with periods of political change, characterized by legal response to confront the wrongdoings of repressive predecessor regimes.’108 Luc Huyse states that transitional justice has general goals like healing the victims, repairing the social fabric and protecting the peace. In order to achieve these goals, most transitional justice measures go after four instrumental objectives: reconciliation, accountability, truth telling and reparation.109 Teitel distinguishes three phases in the history of transitional justice, in which there has been an increased pragmatism in and politicization of the law. The first phase followed the end of the Second World War. It saw a reliance on international justice instead of national justice with the creation of the tribunals in Nuremberg and Tokyo. Moreover, the first phase characterized transitional justice with personal justice over collective punishments. Collective punishments that were imposed on Germany following the First World War were tied to the rise of the Nazi party; with individual punishments those responsible would be targeted instead of the population at large.110 The first phase laid the foundation for the belief in law as a tool for state modernisation.111 This theory is more or less affirmed by Luc Huyse in his chapter on tradition-based transitional justice and reconciliation policies. Huyse adds however

108 Teitel, ‘Transitional Justice Genealogy’, 69. 109 Luc Huyse, “Introduction: Tradition-Based Approaches in Peacemaking, Transitional Justice and Reconciliation policies”, in: International IDEA (eds. Luc Huyse, Mark Salter), Transitional Justice after Violent Conflict: Learning from African Experiences (Stockholm, 2008, 10 110 Teitel, 72. 111 Teitel, 74.

31 that the effective duration of the sentiments described by Teitel lasted only ended along with the closing of the tribunals in Germany and Japan. Instead, the dominant strategy was to look away from history. Cambodia after the Khmer Rouge, Spain after Franco and Chile after Pinochet are examples listed by Huyse of post conflict societies that elected such a stance.112 In Teitel’s theory, the second phase started after the Cold War. This phase is characterized by the divergence from big international courts and the move to localized measures with room for contextual knowledge.113 More than just retributive, transitional justice in the second phase started to concern itself with questions on healing entire societies, reconciliation and other conditions for nation building.114 This move led to the creation of the first truth commissions and, with them, a dichotomy between justice and truth. Used by new, post conflict regimes, these measures offered ways to legitimization and nation building.115 The third phase started around the beginning of the new millennium. Teitel states that this phase is characterized by the normalization of transitional justice, as is seen in the expansion of humanitarian law and the revisiting of the phase one international characteristics with the creation of the International Crime Court (ICC).116 In a period of globalization, the third phase saw a move away from modern state theory and instead revolves around the universal humanitarian law. This law can be enforced upon a regime’s leadership through the ICC.117 Huyse does not differentiate between the second and third phase of Teitel’s theory. Instead, he sees an on-going process that started form the 1980’s in which a growing concern and interest in human rights lead to fight against impunity. The ICC and ad-hoc tribunals of Yugoslavia and Rwanda exemplify this process.118 A third phase started with the Truth and Reconciliation Commission (TRC) in South Africa. This development was the result of the idea that retributive justice and systemic prosecutions could be harmful to the delicate process of regime change after violent episodes. The development of the TRC was a clear break from former transitional justice policies in that it explicitly put truth before justice. It started an era of transitional justice in which multiple tools would be used alongside each other. 119 Moreover, it introduced the concept of borrowing indigenous practices for accountability as it

112 Huyse, “Introduction”, 2. 113 Teitel, 76 114 Teitel, 77. 115 Teitel, 78. 116 Teitel, 90. 117 Teitel, 91. 118 Huyse, 2. 119 Huyse, 2, 3.

32 is thought that it will increase the overall success rate if community members can easily associate with the offered transitional justice policies.120 Furthermore, using indigenous practices moves the core of the proceedings closer to the communities that are to profit from them.121 Since Huyse writes on transitional justice in light of the African context of his book, he adds some important cultural insights and how they interplay with transitional justice. Whereas modern courts are predominantly rational and binary, indigenous practices are more fluent and home to palaver and ritual events. The result is that indigenous traditions are generally better equipped than modern courts to deal with the subtle complexities and grey areas that are associated with civil war and genocide.122 Moreover, modern justice systems are commonly built to administer guilt and punishment on an individual level. In doing so they again fall short in the African context, wherein the communal dimension of society results in a collective perspective on guilt, responsibility, victimhood and reparation.123

Transitional Justice mechanisms used in Rwanda It is now established that transitional justice aims to aid a society that is transitioning from a troubled, violent era into a stable era. Core elements of transitional justice are healing the victims, repairing the social fabric and protecting the peace. In the remainder of this chapter our attention will shift to Rwanda and its transitional justice policies implemented after the genocide. The specific policies that will be analysed are the International Crime Tribunal for Rwanda (ICTR), Rwanda’s domestic courts, Rwanda’s anti-divisionism laws and finally the Gacaca courts. When focussing specifically on Rwanda, Timothy Longman discerns three main categories of transitional justice practices being used: memorialization, commemoration and trials.124 The latter category forms a manner of transitional justice with which a narrative can easily be constructed. When courts sentence individuals they not only end impunity, they also produce a version of history that has great authoritative value. Three distinct court mechanisms were active in post-genocide Rwanda, each with differing scale, scope and influence. These judicial institutions were the ICTR, the domestic court system and the Gacaca courts. According to Phil Clark this setup, i.e. using three distinct transitional justice

120 Huyse, 11. 121 Huyse, 16. 122 Huyse, 15. 123 Huyse, 15. 124 Timothy Longman, Memory and Justice in Post-Genocide Rwanda (Cambridge: Cambridge University Press, 2017), 103.

33 mechanisms working in tandem, is part of a popular approach to transitional justice. Clark coined this a holistic approach and Huyse also noted the move to this approach.125 This holistic approach holds that multiple institutions that function simultaneously on different levels can achieve more towards a durable post-conflict society than a single one can. It seeks ‘to respond to the various physical, psychological and psychosocial needs of individuals and groups during and after conflict.’126

The International Crime Tribunal for Rwanda After the genocide was stopped, Rwanda started taking stock of the ravages that had blown across its hills. It became evident that Rwanda’s judicial system lay utterly destroyed. Many of its buildings were destroyed. More importantly, judges, lawyers and other officials were either killed during the genocide or implicated in those killings.127 It was clear to both Rwanda and the world that Rwanda was in no state to try the génocidaires128 that were already starting to crowd its prisons.129 Enter the ICTR. An example of Teitel’s second phase transitional justice measures, the tribunal in Arusha was an international measure to hold Rwanda’s genocidal regime responsible for its actions. Investigations into the possibility and desirability of a tribunal started as early as August 1994, leading to the founding of the ICTR by the United Nations Security Council in November of that same year. The tribunal was equipped with a jurisdiction limited to crimes committed inside Rwanda from January 1st to December 31st of 1994.130 Based in Arusha, the ICTR operated up until 2015 and tried some of the highest- ranking individuals that were charged under the genocide convention.131 Despite these achievements, both Rwandans and scholars are not unanimously appreciative of the ICTR and its body of work. Multiple scholars establish that there existed a disconnect between the tribunal and Rwandan society.132 This has multiple causes, one of which is the literal, geographical distance. As the ICTR set up shop in Arusha it became a distant and abstract place for many Rwandans. Researcher Chiseche Mibenge states that to the

125 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers (Cambridge: Cambridge University Press, 2010), 48; Huyse, 3. 126 Clark, The Gacaca Courts, 48. 127 Bert Ingelaere, Inside Rwanda’s Gacaca Courts: Seeking Justice after Genocide (Madison: The University of Wisconsin Press), 21. 128 Génocidaire is a term denoting one who is guilty of genocide. 129 William Schabas, “Genocide Trials and Gacaca Courts”, Journal of International Criminal Justice (3, 2005), 881 – 882. 130 United Nations Security Council, Resolution 955 (New York: 1994), Article 7. 131 Longman, 109. 132 Longman, 109; Cruvellier, 29; Guichaoua, 295.

34 Rwandans living in the countryside the tribunal and Arusha were just as far and abstract concepts as Europe was.133 Furthermore, the tribunal had difficulty in accessing the media circuits of Rwanda from their post in Arusha.134 Other than this geographical distance, there has also been an experienced distance between the ICTR and Rwandan society. The experienced distance was enlarged due to several factor, including the before mentioned lack of access to Rwandan media. This meant that many of the proceedings and achievements of the tribunal took a long time to reach ordinary Rwandans. The fact that the ICTR only chose to publish reports and outcomes of trials in Kinyarwanda from 2014 onwards further helped to multiply the experienced distance.135 In attempting to stay as impartial as possible the ICTR was very hesitant to actually visit Rwanda for research and did so only on few occasions. In combination with hearing primarily Western experts, this focus on impartiality furthered the gap between Arusha and Rwanda.136 Finally, the tribunal suffered from loss of authority in the eyes of ordinary Rwandans due to its failure to try RPF crimes.137 A loss in faith in the ICTR due to the absence of RPF cases is a common recurrence when studying the writings on the tribunal. As stated above the lack of any trials against members of the RPF meant that the ICTR was perceived negatively in the eyes of common Rwandans. Guichaoua notes that the tribunal has had a difficult and long-lasting journey when it comes to putting members of the RPF on trial. During their mandates as Chief Prosecutor both Richard Goldstone and Louise Arbour, the ICTR struggled with bad audit reports concerning the management of the tribunal. The Rwandan government took the chance to denounce the ICTR, thereby delaying the investigations into RPF crimes.138 Goldstone and Arbour’s successor Carla Del Ponte declared her ambition to investigate RPF crimes and was also met with backlash from the Rwandan government.139 Longman contends that this backlash was a calculated move by the RPF to prevent further research into human

133 Chiseche Mibenge, “The International Criminal Tribunal for Rwanda and Universal Jurisdiction”, in Evelyn Ankumah and Edward Kwakwa (eds.), African Persecives on International Criminal Justice (Maastricht: African Legal Aid, 2005), 193 – 194. 134 Guichaoua, 295 135 Guichaoua, 344. 136 Cruvellier, 133. 137 Guichaoua, 344. 138 Guichaoua, 309. 139 Victor Peskin, “Victor’s Justice Revisited: Rwandan Patriotic Front Crimes and the Prosecturorial Endgame at the ICTR” in Scott Straus and Lars Waldorf (eds.), Remaking Rwanda: State Building and Human Rights after Mass Violence (Madison: University of Wisconsin Press, 2011), 177 – 178.

35 rights abuses by the regime.140 Guichaoua states that the RPF realized such an anti-ICTR radicalization within its borders that cooperation with the tribunal haltered. Hostility towards the tribunal remained throughout Del Ponte’s mandate and only dropped when her successor Hassan Bubacar Jallow took office with an implicit understanding to drop the investigations into RPF crimes.141 Under Jallow’s mandate the ICTR transferred all pending cases against RPF members to Rwandan authorities in March of 2008.142 Inside Rwanda, these cases were tried in a military court and resulted in light sentences.143 Cruvellier finds that the ICTR in general suffered from RPF mingling, stating: ‘[Rwandan authorities] have managed to use, shake up, manipulate, and intimidate the ICTR. [They had] no qualms about subjecting the tribunal to their interests – this has considerably weakened the institution in the eyes of Rwandans.’144 Furthermore, the tribunal’s failure to prosecute any crime committed by RPF soldiers has lead Victor Peskin to conclude that the ICTR was a form of victor’s justice.145 It must be noted as well that in light of the continued de facto divide between Hutu and Tutsi, the decision to forego any trials against members of the RPF was experienced by Rwandans themselves too as victor’s justice: in essence the tribunal only punished crimes committed by Hutu and ignored those of Tutsi.146 While there are more points of criticism – like the slow pace of proceedings, their relative costs, and their focus on prominent figures147- there are also positives to be considered. Guichaoua notes that in the verdict in the Bagosora trial, the judges of the tribunal acknowledged the one-sided reading of the genocide that was imposed by the Prosecutor on the Trials Chamber through its indictments.148

Domestic Courts The ICTR tried only a small percentage of the many suspects. Because it only went after the main actors, Rwanda was still left with crowded prisons. 149 To combat the threat of

140 Longman, 107. 141 Guichaoua, 311 – 312. 142 Guichaoua, 319. 143 Peskin, “Victor’s Justice Revisited”, 180. 144 Cruvellier, 133. 145 Peskin, “Victor’s Justice Revisited”, 181. 146 The continuation of ethnic divides in post-genocide Rwanda will be handled further down in this chapter. Jennie Burnet furthermore provides a solid analysis of the emerging of a new, codified way of speaking about Hutu and Tutsi. See Jennie Burnet, “Whose Genocide? Whose Truth?” in Hinton, Alexander Laban & O’Neill, Kevin Lewis (eds.), Genocide, Truth, Memory, and Representation (Durham, NC: Duke University Press, 2009), 79-110. 147 Guichaoua, 295. 148 Gouchaoua, 326. 149 Schabas, 882.

36 overcrowding and continuing impunity, the RPF government and international beneficiaries began rebuilding Rwanda’s own judicial system. New venues were constructed, new personnel were trained and new laws were signed. Rwanda’s new system began functioning in late 1996.150 While initially heavily criticized for a failure to uphold an international fair trial standard, Rwanda’s domestic courts in time gained more experience and started to adhere better to international standards. An inherent downside of the domestic courts was their pace however: it was stipulated that trying all suspected génocidaires would take the domestic courts over a hundred years.151 Even combined with the ICTR, it became clear that classic trials would be inadequate to prosecute all genocide suspects.152 Phil Clark exemplifies this in stating that the domestic courts had only tried 3 per cent of the total backlog by 2000.153 With this in mind the government started searching for a more durable alternative. It found what it was looking for in the ancient Rwandan tradition of gacaca.

Laws against divisionism and genocide ideology As stated in the introduction to this chapter, Rwanda has chosen multiple mechanisms to work alongside each other. These include three court-style mechanisms like the ICTR, the domestic courts and the Gacaca courts. Another measure that the government of Rwanda has taken relies less on the creation of court systems and more on the creation of laws. This process is the creation of the laws against divisionism and genocide ideology. Spanning from 2001 to 2008, the action of signing these laws into action ran largely parallel to the Gacaca courts.154 Longman argues that the RPF shifted its means of pursuing political dominance after the year 2000. As Paul Kagame took more direct control of the RPF, the government stopped resorting primarily to violent actions against opponents and in turn took an approach compromising grand programs aimed to restructure Rwanda’s social and political spheres.155 The act of designing laws against divisionism and genocide ideology is, along with the Gacaca courts, exemplary for this latter attitude of the RPF.

150 Longman, 110. 151 Longman, 111. 152 Thijs Bouwknegt, “Unraveling Atricity: Between Transitional Justice and History in Rwanda and Sierra Leone” in Ugur Üngör (ed.), Genocide: New Perspectives on Causes, Courses and Consequences (Amsterdam: Amsterdam University Press, 2016), 230. 153 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, (Cambridge: Cambridge University Press, 2010), 56. 154 Lars Waldorf, “Instrumentalizing Genocide: The RPF’s Campaign against ‘Genocide Ideology,’” in Scott Straus and Lars Waldorf, eds., Remaking Rwanda: State Building and Human Rights after Mass Violence (Madison: University of Wisconsin Press, 2011), 54 155 Longman, 151.

37 The first relevant law, signed in 2001, was the Law on Prevention, Suppression, and Punishment of the Crimes of Discrimination and Sectarianism. 156 This law prohibited divisionism, but failed to provide a clear definition of what was to be understood as divisionism. A research by Human Rights Watch found that not one of the judges that they interviewed was able to give a conclusive definition of the term divisionism, even though they had convicted individuals for it.157 The law was effectively used to repress criticism on the government. Political opponents, critical journals and individuals who strayed too far from RPF principles were accused of spreading divisionism and were consequently arrested and shut down.158 Rwanda’s constitution of 2003 called for the fight against genocide ideology in all forms as a fundamental principle of the nation. It furthermore stated that “Revisionism, negationism and trivialisation of genocide are punishable by the law.”159 Again however, the exact meanings of each of these terms were left with ample room for interpretation. According to Lars Waldorf, at that point the term genocide ideology had been fused with genocide denial so thoroughly that it became especially difficult to tell the difference between mere political criticism and genuine genocide denial.160 In 2008, after government reports were produced on rampant genocide ideology throughout Rwanda and its school system, Parliament adopted a law that specifically made genocide ideology a crime. In fashion of the previous laws and initiatives however, the definition of genocide ideology was again left vague.161 The law did establish the criteria for genocide ideology, but these included broad and subjective elements. 162 The penalties enclosed in that same law are quite rough, with high prison sentences accompanied by heavy fines.163 As a matter of fact, the laws on genocide ideology were largely detached from any actual crimes of genocide, with perpetrators not having to be in possession of knowledge on

156 Republic of Rwanda (RoR), “Law No. 47/2001 of 18/12/2001 Instituting Pun- ishment for Offences of Discrimination and Sectarianism.” Journal Officiel No. 4, February 15, 2002. 157 Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda (2008), 34. 158 Longman, 168 – 169. 159 Republic of Rwanda (RoR), “Constitution of the Republic of Rwanda,” June 4, 2003, Article 9. 160 Lars Waldorf, “Instrumentalizing Genocide”, 48–66. 161 Longman, 170 162 Human Rights Watch, 41. 163 Human Rights Watch, 40.

38 or action during the genocide itself to be convicted.164 The RPF purported that these laws were crucial to the self-imposed task of preventing future violence through eradicating dangerous ideologies. While that there is little to remark on that goal, the actual laws themselves made it possible for the RPF to use allegations of divisionism and genocide ideology to gag government critics and would-be opponents.165

The creation of the Gacaca courts So far this chapter has handled theories of transitional justice and three transitional justice mechanisms that were put to use in Rwanda following the genocide. The following section of the chapter will focus exclusively on the Gacaca courts. This will be done in two parts, with the first part concerning the creation of the Gacaca courts and the second part concerning the workings and results of the courts. First, we will see how the RPF found an old Rwandan tradition for mediation and transformed it into a modern mechanism for traditional justice, how the Gacaca courts were set up according to three leading principles and how it was designed to function. In the second section Gacaca’s reliance on testimonies will be considered, along with the micro mechanics at play during Gacaca sessions, the impact of not handling RPF crimes and the way in which the Gacaca courts served to grow the RPF’s control over Rwanda’s countryside.

An ancient custom Gacaca was a well-known tradition in Rwandan society, its origin dating back long before any European set foot on Rwandan territory.166 The traditional Gacaca fitted in with Rwandan society as a way to not hamper the highest judge in Rwanda. The position of highest judge was vested in that of the Mwami, or king of Rwanda. The king was considered to have the highest authority on matters both worldly and spiritual and while a council of elders that guarded tradition aided him, it was generally understood that a dispute had to travel all the way up through Rwanda’s hierarchical society before it would reach him. The tradition of Gacaca ensured this, as it was a tool to address conflicts on the lowest units of society.167 A Gacaca gathering was generally held on fields of soft grass surrounding a village, which gave the custom its name. During these informal gatherings, village elders or Inyangamugayo came together to resolve conflicts. This was done with a principal focus on

164 Human Rights Watch, 42. 165 Longman, 170. 166 Clark, The Gacaca Courts, 52. 167 Bert Ingelaere, “The Gacaca Courts in Rwanda”, in Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences ed. Luc Huyse and Mark Salter (Stockholm: International IDEA, 2008) 33; Longman, 111.

39 the restoration of harmony in the society.168 While these gatherings also ventured in truth finding and could punish perpetrators or compensate the victim, such elements essentially only existed to serve the restoration of social harmony. The gatherings would only deal with small time crimes and violations and would forward more serious cases to the royal court.169 The colonial administrators had a big impact on the country’s judicial system and the Gacaca system. With the introduction of a written law and official courts inspired by Western ideas, the role of the Mwami and his council gradually lessened. Serious crimes were to be dealt with using the imposed judicial system and could no longer by solved by the king. This waning of traditional influence trickled down to the lower levels of society, where the tradition of Gacaca continued to exist but lost some of its prevalence.170 Gacaca was used alongside western courts, with judges being appointed by Belgians instead of the local community.171 The tradition regained popularity again after Rwanda gained its independence.172 The new republic chose to keep the Western-styled court system alive, but supplement it with Gacaca. To this end the state started a formalization process and forced the gatherings to uphold some new principles. Gacaca gatherings were amongst other things to follow certain fixed procedures, keep notes and meet on appointed days. While the tradition was made more formal and had to adhere to some modern ideas, it still held its emphasis on reconciliation and could settle conflicts in ways that were not in conformity to the written laws of Rwanda. The reintroduction of Gacaca in a way allowed the custom to regain its initial role in society. Once again, the gatherings served as a first-stop measure for small conflicts. Instead of relieving the king’s court, it now relieved the new court system. Only cases that could not be solved in Gacaca or were too severe for the traditional customs were forwarded to the higher courts.173

Revamping the old custom The genocide left Rwanda devastated on many levels. As stated by William Schabas, the country was left with nothing that resembled a functioning judicial system. Even after a few years of rebuilding that system it remained vastly inadequate to deal with the enormous task

168 Clark, The Gacaca Courts, 52. 169 Bert Ingelaere, Inside Rwanda’s Gacaca Courts: Seeking Justice after Genocide (Madison: The University of Wisconsin Press) 19. 170 Ingelaere, Inside Rwanda’s Gacaca Courts, 20. 171 Clark, The Gacaca Courts, 53. 172 William Schabas, “Genocide Trials and Gacaca Courts”, Journal of International Criminal Justice (3, 2005), 892. 173 Ingelaere, Inside Rwanda’s Gacaca Courts, 20.

40 of trying Rwanda’s detainees.174 At the same time Rwanda’s new government, headed by RPF general Paul Kagame, was looking for ways rebuild Rwandan into a new and durable society.175 Kagame and his government propagated the view that the two republics headed by Presidents Grégoire Kayibanda and Juvénal Habyarimana were in fact neo-colonialist regimes that were puppets to Western nations. In the same view, this had inadvertently lead to the genocide that Kagame had put and end to. He wanted to manifest a clean break between the old, genocidal Rwanda and the new, post-genocide Rwanda.176 This rejection of Rwanda’s past and the aim to create a new Rwandan identity lead to the creation of new symbols, like the creation of a new flag, seal and anthem through an open public contest.177 Moreover, it heralded a renaissance of Rwanda’s pre-colonial era, when the country was not tainted by colonial and genocidal ideas. In the effort to replace institutions and practices that were imposed by foreign powers with home grown traditions that were truly Rwandan, Gacaca proved a promising contender. Not only did it tick the box of pre-colonial Rwandaness, it could furthermore be used as a means to fight impunity after the genocide while also reconciling society and bringing unity to Rwanda.178 When the suggestion to revamp the traditional system into Rwanda’s own transitional justice mechanism in 1996, it appeared that villages at the local level had already reinstated the practice. Several areas had started semi traditional Gacaca gatherings in an attempt to restore local harmony. These initiatives were backed by both the local administrative authorities and population. Functioning largely in the same way as before the genocide, these Gacaca gatherings were preoccupied with minor disputes like the destruction of houses, looting or the appropriation of land.179 This is a continuing feature of the Gacaca practice, as later in this chapter it will become clear that the Gacaca courts mainly handled similar cases. According to research by the United Nations High Commissioner for Human Rights (UNHCHR) at the time it was an absolute taboo to talk about the killings of the genocide during these initial gatherings. While at some places names of killers were collected, the gravity of actual murders was often deemed too much for the Gacaca gatherings to handle.180

174 William Schabas, “Genocide Trials”, 884. 175 Filip Reyntjens, Political Governance in Post-Genocide Rwanda (Cambridge: Cambridge University Press, 2013),166. 176 Longman, Memory and Justice in Post-Genocide Rwanda, 160. 177 Longman, 160. 178 Ingelaere, “The Gacaca Courts in Rwanda”, 31 – 32. 179 Schabas, “Genocide Trials”, 892; Clark, The Gacaca Courts, 55. 180 Ingelaere, Inside Rwanda’s Gacaca Courts, 20 – 21.

41 The first serious steps to use the traditional Gacaca system were made in 1999, as a result of the so-called Urigwiro meetings. Confronted by the crippling caseload that faced the conventional courts of Rwanda the government chose to press on with the creation of a new Gacaca system, even though there were some arguments against it. These reservations include the fear that lay judges were not equipped to deal with the seriousness of the caseloads or that it would create new conflicts and tensions in Rwanda’s society. The reservations were countered by the idea that the people could be trained and assisted by lawyers in order to prepare them for their responsibilities and that it would end the culture of impunity. Ending that culture of impunity, along with a desire to rebuild society by propagating unity, was an element that stood at the centre of many of these preliminary discussions of Rwanda’s new elite.181

Three leading principles During the Urigwiro meetings a fundamental framework was set from which the RPF later started the process of creating the Gacaca courts.182 This framework rested on three distinct pillars, each providing a principle to modernize the traditional Gacaca. The first principle held that a system should be created that allowed for suspects to be tried in parallel according to their suspected crimes. Practically this meant that accounts of murder were to by tried by the ordinary court system and different levels of local courts tried lower crimes. The second principle called for a popularization and decentralization of justice. To this end, a court should be created on every administrative zone throughout Rwandan society. The third and final principle put the use of confessions at the core of the Gacaca process. Instead of using evidence provided by the police or other institutions, testimonials of victims, killers and bystanders were to be used in the sessions of the Gacaca courts.183 The first version of Rwanda’s own transitional justice mechanism was created over the course of the following years. By 2001 the first laws were drafted that issued the creation of a Gacaca court system.184 They set a number of goals for the Gacaca court system: to reveal the truth about Genocide; to speed up the cases of Genocide and other crimes against humanity;

181 Ibidem, 22 – 24. 182 Schabas, “Genocide Trials”, 892. 183 Ingelaere, Inside Rwanda’s Gacaca Courts, 25. 184 Republic of Rwanda (RoR), ‘Organic Law 40/2000 of 26/01/2001 Setting Up Gacaca Jurisdictions and Organising Prosecutions for Offences Constituting the Crime of Genocide or Crimes against Humanity Committed between 1 October 1993 and 31 December 1994’, Official Gazette of the Republic of Rwanda, October 2000.

42 to eradicate the culture of impunity; to strengthen unity and reconciliation among Rwandans; and to prove the Rwandans’ capacity to solve their own problems.185 The laws dictated that each Gacaca court to consist of a General Assembly, a Bench and a Coordination Committee. The General Assembly was to be made up out of local people, who had elected from their midst nineteen inyangamugayo, or persons of integrity. While due to the rural nature of Rwanda’s society most of these were laypersons, the government provided training to prepare them for their roles.186 Any member of the General Assembly who was above the age of 21, did not serve a prison sentence longer than six months, was not implicated in the genocide and was ‘free from the spirit of sectarianism and discrimination’ could be chosen as a person of integrity.187 The elected inyangamugayo together constituted the Bench and were the judges of the Gacaca court. The Coordination Committee was subsequently elected by and from the Bench and was primarily tasked with keeping records of the proceedings and making sure that their Gacaca court convened once a week.188

Categorization of genocide crimes With the tasks and responsibilities divided, the laws also created a categorization system that divided the crimes to be tried in to four categories and gave each level of Gacaca court its own task based on these categories. The first category held the following charges: planning and organizing genocide; social, political, religious and army and militia leaders who committed genocide or encouraged others to; well known murderers; and persons who committed rape or sexual torture. The second category held perpetrators and accomplices who used violence resulting in death and persons who used violence with the intent to kill but ultimately failing to do so. The third category held those who used violence without the intent to kill. The fourth and final category held those who caused property damage.189 In the creation of the Gacaca system, Gacaca courts at the lowest level, the Cell level were tasked with trying cases from the fourth category as well as categorizing each suspect in one of the four categories. The Sector level Gacaca courts were to deal with third category cases. District or Town level Gacaca courts were tasked to handle cases from the second category. Finally, Gacaca courts at the Province level or the one in Kigali had to deal with appeals of the verdicts provided in lower level Gacaca courts. Those who were accused of crimes of the first category were deemed too intricate for Gacaca courts and were passed on to

185 National Service of Gacaca Courts, Gacaca Courts in Rwanda (Kigali, 2012), 33. 186 Ibidem, 77. 187 RoR, ‘Organic Law 40/2000 of 26/01/2001’, Articles 10 and 11. 188 Ibidem, 34 – 39. 189 National Service of Gacaca Courts, 39 – 40.

43 the formal court system of Rwanda. Furthermore, as a build in controlling mechanism, each level of Gacaca courts had to exam the reports and activities of the lower level Gacaca courts in its jurisdiction.190 After a brief pilot phase from June 2002 to March 2005 in which the Gacaca courts functioned according to the mechanisms described above, the government of Rwanda evaluated the results of the processes.191 This examination led to a number of adjustments of the system. Most importantly, a change was made to the core mechanic of the Gacaca courts in order to strengthen its efficiency.192 A new law redesigned the four categories of crimes that were tried and bundled the second and third category into a single one. It also changed the partitioning of the country in Gacaca court levels by disbanding all District, Town, Province and Kigali Gacaca courts. The remaining levels were Cell Gacaca courts, whose assignment was unchanged, and Sector Gacaca courts, who had to process accusations grouped in the new thirds category. In addition, a new Gacaca court of Appeal was constituted to handle appeals from the Sector level Gacaca courts.193

Truth in Gacaca courts A key future of how the Gacaca courts functioned lay in the use of Rwanda’s population at large and the reliance of the courts on testimonies provided by that population. As mentioned before, the Gacaca courts did not use evidence that resulted from research done by the national police or other judicial bodies. The use of testimonies was a conscious choice for it ensured that justice was done by the people, instead of ‘in the name of the people’ like in classical courts.194 This fits in with one of the objectives of the Gacaca court system as it sought to improve unity and reconciliation amongst Rwandans. Another important aspect of the Gacaca court system is the possibility for defendants to influence their potential punishment through a formal arrangement of testimony and apology. If a defendant admitted to the crimes he or she was charged with and the Gacaca court accepted his or her apologies, the prison sentence could be reduced. Depending on the crimes and time of pleading guilty, up to a sixth of the initial prison sentence could be reduced, a third of it suspended and half of it changed to community service.195 A testimony by the defendant had to be accepted by the inyangamugayo in order to achieve such a

190 National Service of Gacaca Courts, 42 – 46. 191 Ibidem, 53, 78. 192 Ibidem, 60. 193 Ibidem, 64 – 75. 194 Ibidem, 188. 195 National Service of Gacaca Courts, 101 – 112.

44 reduction of the sentence. This could only occur when the testimony detailed as much as possible of the crime – including information on what had exactly transpired, where it had and who were the victims and accomplices. Moreover, the testimony also needed to be accompanied by a public apology that was both complete and sincere and included a request for pardon.196 The reliance on testimonies and the plea bargain system showcase the crucially fundamental and central role that truth played in the Gacaca court system. The Gacaca courts were constructed to establish the truth of what had happened during the genocide. Much more than producing truth, it needed truth to function properly. Truth was needed to determine what crimes were committed during the genocide, to tell guilt from innocence and to establish what sentence should be passed. Whether the Gacaca courts were able to find truth in their existence from 2002 to 2012 is subject of discussion and will be examined in the analysing paragraphs later on in this chapter. The next section will evaluate the Gacaca court systems, using the works of multiple scholars that have done fieldwork in Rwanda. It will show how the system had problems concerning the reliance on accusations; the social mechanics at work in rural Rwanda; the refusal to deal with RPF crimes; and the way in which Gacaca has worked to solidify the government’s hold on the population.

Evaluation of the Gacaca courts In its ten years – the first pilot phase included – of functioning, the Gacaca court system was reorganized and refined many times. These changes were generally made to speed up the proceedings as it soon became clear that the system was not equipped to complete the caseload in its determined running time.197 While the government of Rwanda is proud on the system and praises its reconciling and truth finding results, many scholars have voiced their critiques on the system. These views range from outright condemnation to more objective analyses. It is here that I would like to make a point about the literature on the Gacaca court system. There exists a large field of debate on the use of Gacaca courts in Rwanda, not unlike the one on the genocide itself. Given the prevalence of the Rwandan genocide in many studies and reports during the past ten to twenty years and its unique nature, it is perhaps not surprising that the Gacaca courts as well are a prevalent topic in the field of transitional justice studies. The body of literature on the Gacaca courts appears extremely critical at face

196 Ingelaere, “The Gacaca Courts in Rwanda”, 39. 197 Ingelaere, Inside Rwanda’s Gacaca Courts, 27.

45 value. As Phil Clark rightfully mentions in his analysis of the critiques on the Gacaca courts, many of the studies and reports rely too much on the legal aspects of the system.198 Such critiques generally focus on the lack of properly trained judges or the absence of lawyers for defendants. 199 In concurrence with Clark, I find that such an approach overlooks the experienced realities during the actual Gacaca court sessions. Whilst I do acknowledge the existence of the reports based on legal frameworks, I believe that there is much more to be gained from analysing the Gacaca courts through a more relevant, local lens. Seeing that transitional justice mechanisms are designed to have impact on the individuals that are connected to the relevant conflict, it is only logical to look at and evaluate the Gacaca courts through the lived experiences and attitudes of the ordinary Rwandan. It is because of this reason that in the following analysis I mainly use studies by authors like Longman, Ingelaere, Chakravarty and Clark, whom have each performed a lot of fieldwork in Rwanda during their researches.

Reliance on accusations A critique on the Gacaca courts that followed from a number of these fieldwork driven researches is the widely used practice of false or partial accusations and testimonies during the proceedings. Longman argues that the system of Gacaca courts was tempered in its ability to contribute to reconciliation because it was used as a tool of political domination by the RPF.200 Crucial to this tempering lays the fact that the Gacaca courts relied on testimonies of their constituencies to be able to preform. In a continuous attempt to gather more information through testimonies, the system promoted confessions by promising a reduction of time spent in prison for those defendants that confessed. The alternative to confession – to want to prove ones innocence – often came at the price of a long time in custody awaiting trial since the Gacaca courts prioritized cases in which defendants pleaded guilty. Because the Gacaca courts froze all assets of those awaiting trial, a practice that isolated defendants both financially and socially, some of the accused chose to confess to crimes they did not commit.201 Together with the sentencing of Gacaca courts in general being quite harsh, those accused could also try their luck and deliver partial or false confessions in the hope that they

198 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda, 347. 199 A prime example of these studies on the Gacaca courts is the report by Penal Reform International from 2010: Penal Reform International (PRI), Final Monitoring and Research Report on the Gacaca process, 2010, https://www.penalreform.org/resource/final-monitoring- research-report-gacaca-process/. 200 Longman, 120. 201 Ingelaere, Inside Rwanda’s Gacaca Courts, 63.

46 could at least arrange a reduction of the impending sentence.202 The preconditions for such testimonies to be accepted and therefore successful are listed above, but in practice it commonly came down to how many accomplices a defendant could name. Due to the risk of inciting revenge testimonies, it was common for defendants to name individuals that were already dead or in exile in their confessions.203

Micro mechanics The reconciling abilities of the Gacaca courts were also interfered with by an aspect that is connected with the social conditions of rural Rwanda. Ingelaere pays a lot of attention to the dynamics at play at hill-level of Rwandan society. He states that before the Gacaca courts became in use, villages and small communities had employed their own means of working through the past. Forced into cooperation by the conditions of poverty and agricultural life, these communities often chose not to confront their past but resume a day-to-day routine. The Gacaca courts rudely broke into these tailor-made coping and reconciliation mechanisms. By forcing Rwandans to recount and relive the genocide, the Gacaca courts scraped away the small layer of varnish that was created in communities and put bare again the regret, hatred and general grievances associated with the genocide.204 Examples of Gacaca courts generating such hostile attitudes can be found when examining the practices of testimonies. As mentioned before, the procedures of the system meant that Rwandans were pushed to confess and point out génocidaires to the Gacaca courts. In theory, this ensured that all génocidaires would eventually be known and subsequently tried. In practice however, it allowed for many people to be falsely accused. People were falsely accused in order to settle a multitude of disputes. Sometimes, these disputes had little or nothing to do with the genocide but were disguised as being relevant to the Gacaca courts’ operations. More often however these disputes were a direct consequence of earlier rulings by the Gacaca courts. People in prison would occasionally accuse those whose testimonies had put him or her in jail of committing genocidal acts themselves.205 Another aspect of the sociocultural universe of Rwanda that relates to this us of false or partial accusations is named ubwenge. Ubwenge literally means intellect or smartness, but can best be understood as the manner in which one navigates the social. It contains elements of self-control in public, trickery and prudence and is essentially about understanding

202 Longman, 130. 203 Longman, 124. 204 Ingelaere, Inside Rwanda’s Gacaca Courts, 84 – 87 205 Ibidem, 120 – 122; Longman, 301.

47 situations and creating a network of profitable social relations.206 Ubwenge is central to many interactions in Rwanda and indeed also was to the Gacaca courts. Good examples of this ubwenge can be seen in multiple court session where defendant make an estimation of their chances before deciding whether they would plead guilty or not. The system of the Gacaca courts worked in such a manner that a defendant was more likely to be found guilty as more people were present to testify against him or her with a coherent story. When a defendant could not organize a group of testimonials in his favour that was larger than that of the group accusing him, he would generally plead guilty and vice-versa. Occasions can even be found where defendants seemingly started to bargain with the inyangamugayo about how many witnesses needed to be found willing to testify against them before they themselves were willing to accept guilt.207 False accusations were not the only disruptive element in local Gacaca courts. In a practice called ‘buying the hill’, a person who stood accused was willing to accept guilt for more or other crimes than he or she committed. Persons would do so in exchange for financial or social gains. The person who in this manner succeeded in evading punishment for his or her crimes by influencing others was the one who ‘bought the hill’.208 With ordinary Rwandans generally using the Gacaca courts in ways that were most beneficial to themselves, the truth-finding en reconciling capabilities of the Gacaca courts were seriously hampered. Indeed, as Chakravarty states, there existed a figural marketplace for information: important information could be made up, suppressed or strategically brought out if one had enough financial or social capital.209 This undermining of the truth was naturally highly frustrating for those predominantly Tutsi survivors, who actually were interested in finding the truth about the final moments and resting place of their loved ones.

RPF crimes Besides the problems that relying solely on testimonies to conduct trials brought to the Gacaca courts, the system was also challenged by the fact that it did not allow the handling of any crimes committed by the RPF. This limitation to the Gacaca courts is marked by many writers as problematic, as it typically seen as an obstruction to nation-wide reconciliation if

206 Ibidem, 119. 207 Anarudha Chakravarty, Investing in Authoritarian Rule: Punishment and Patronage in Rwanda's Gacaca Courts for Genocide Crimes (Cambridge: Cambridge University Press, 2016), 147, 150 – 151; Ingelaere, Inside Rwanda’s Gacaca Courts, 123. 208 Ingelaere, Inside Rwanda’s Gacaca Courts, 127 – 128. 209 Chakravarty, Investing in Authoritarian Rule, 151.

48 courts are allowed to handle only a selected part of the crimes that were committed during the genocide. In its own report on the Gacaca courts, the government of Rwanda reserves a section to dispel some common critiques on the use of the Gacaca courts. The absence of RPF crimes from the Gacaca courts is one of these critiques. The report counters this point by stating that while there were indeed some crimes against civilians committed by RPF soldiers, these actions were isolated and perpetrated by rogue soldiers. It labels these crimes as war crimes instead of genocide and therefore have no place in Gacaca courts because that system is set up only to deal with genocide crimes. The war crimes instead are tried in military courts.210 Longman notes how the government of Rwanda limited the caseload of the Gacaca courts. While the courts were allowed to try crimes of genocide and other crimes against humanity that were committed up until December 31st of 1994 and therefore officially allowed for crimes perpetrated by RPF soldiers to be tried, this never happened in practice. During the training of the inyangamugayo and through visiting officials during the active period of the Gacaca courts the government made clear that the trials were to be focused on genocide crimes and that crimes committed by the RPF would explicitly not be tried.211 Building on an extensive local research, Longman goes on to amplify his findings by mapping how ordinary Rwandans perceived the Gacaca courts. He notes that before the Gacaca courts started, people were generally supportive of the idea. People believed that the system would put them in control of the rendering of justice. More importantly Longman found people who expressed that the Gacaca courts should also try RPF crimes if they were attempting to reconcile the nation. Denying these people their precondition to reconciliation lessened the effectiveness of the Gacaca courts for them, which becomes even more salient when considering the outcome of Phil Clark’s research wherein the majority of held ‘the RPF responsible for crimes against Hutu civilians committed during the civil war and after their seizure of power.’212

Gacaca courts as a vehicle for RPF power The reimagined Gacaca courts system that Rwanda employed to cope with its genocide thus had some shortcomings that its designers could not have foreseen. But what a number of critical studies have found is that the system meant something else to Rwanda’s government than it did to Rwanda’s people. The analyses by both Longman and Chakravarty lead to the

210 National Service of Gacaca Courts, Gacaca Courts in Rwanda (Kigali, 2012), 189 – 190. 211 Longman, 124 – 125. 212 Clark, 103.

49 conclusion that the Gacaca courts were important vehicles to solidify political power and authority in the hands of the RPF. Timothy Longman is clear about his views on Rwandan transitional justice practices in general and the Gacaca courts in particular. He states that the Gacaca court system was an extremely effective and far-reaching instrument to exercise state control over ordinary Rwandans.213 A major point on which Longman attacks the Gacaca courts is the fact that they were limited by design to only cover crimes of genocide. This effectually left any crimes committed by the RPF out of the equation. The resulting one-sided nature of the trials made the Gacaca courts lose its ability to establish the truth of what happened during the genocide and made it more a way to promote a particular – the official – narrative that serves the interest of those in power. The centrality of the genocide to Rwanda’s history is emphasized through this narrative through the establishing of the extend and the brutality of many genocide crimes, while crimes committed by the RPF in the same period are purposefully pushed to the back of peoples memories.214 The emphasis of the Gacaca courts’ proceedings on the genocide not only diminished the remembrance of RPF crimes during the genocide, but also the connection that the RPF had to the outbreak of genocide. According to Longman, the rising tensions and conflict between the RPF and Habyarimana’s regime are integrated with the genocide because the latter party used RPF actions to instil fear and resentment in Rwanda’s population. While Habyarimana’s anti-Tutsi campaign caused massacres as early as 1990 that could have also been tackled by the Gacaca courts, the RPF opted not to do so because it would have put the spotlight on the role that their invasion played in inciting Rwanda’s widespread massacring of Tutsi.215 A third critique of Longman on the decision not to try RPF crimes in the Gacaca courts is connected to ethnicity. The RPF has officially tried its best to put and end to the ethnic dichotomy that had plagued Rwanda throughout the second half of the twentieth century and instead had tried to promote a sense of Rwandaness amongst its people. However, the Gacaca courts effectively served to reinstate and deepen the divides between in Hutu and Tutsi despite government efforts to ban them out. In the Gacaca courts even the smallest of crimes, like property theft, were tried if it was a Hutu who acted it out. At the same time the

213 Longman, 124. 214 Ibidem, 125 – 126. 215 Ibidem, 126.

50 system refused to handle cases where RPF combatants were responsible for killing Hutu civilians. Not trying RPF crimes therefore meant that the Gacaca courts in practice were a place where implicitly all Tutsi were defined as victims and all Hutu as perpetrators.216 Doing so paved the way for many Tutsi – were they survivors or caseload immigrants – to occupy the majority of socially powerful positions that were formerly held by Hutu. Even though powerful Hutu were often able to bribe themselves out of prison, they remained implicated in the genocide. This implication meant that they could still easily be targeted and imprisoned again. Some of them had confessed to their allegations, which meant that they had received a reduction to their sentence. In doing so however they had entered in a patronage deal with the RPF. Often times these once socially and politically powerful Hutu were forced to forego their former positions after their trial and time in jail in an attempt to keep a low profile. RPF-minded Rwandans consequently filled their places in society. As a result the RPF indirectly strengthened their grip on Rwanda’s localities as a by-product of the Gacaca courts.217 Anarudha Chakravarty agrees with the notion that the Gacaca courts helped the RPF with extending and consolidating their political rule on the Rwandan population.218 Through her fieldwork she uncovered a number of interesting dynamics at play during and after the Gacaca courts, like the consent effect and the clientelist relationship between confessors and the RPF. I will handle these dynamics in the following paragraphs. Central to her findings is the concept of the ‘consent effect’. This means that through the act of confessing to accusations for crimes during the genocide, defendants conceded the moral right to rule to the RPF. Confessing had some far-reaching effects for suspects. The act of confessing meant that the confessor completely put himself at the whims of the government, who had the power to unilaterally decide to do whatever it wished with the confessor. Besides possible re-imprisonment by the government, confessors were known in their local community and faced social isolation. They moreover lived in fear of retributions from those they had exposed in their confession or from insurgents that occasionally ventured out of the DRC. Finally, an individual who was found guilty in a genocide case formed an easy target for local authorities to pick on and abuse.219

216 Longman, 127, 130. 217 Ibidem, 130 – 132. 218 Anarudha Chakravarty, Investing in Authoritarian Rule: Punishment and Patronage in Rwanda's Gacaca Courts for Genocide Crimes (Cambridge: Cambridge University Press, 2016). 219 Chakravarty, 167, 169 – 170, 186.

51 To counter these challenges that came with a confession, confessors often opted to shrug close against their new government. Signalling to the RPF itself and to Rwandan society at large that a confessor was loyal to the government gave him or her a certain insurance against arbitrary punishments and other possible reprisals. Confessors could express their loyalty through leading Gacaca sessions in prison, traveling the country performing musicals acts to popularize RPF support and confession in Gacaca courts and generally actively supporting and cooperating with any government programs and initiatives.220 Chakravarty calls this resulting connection between a confessor and the government a clientelist relationship. The relationship in this arrangement is unequal, whilst both parties benefit from it. The client, or confessor, enjoys an early release from prison and consequential protection; the patron, or RPF, on the other hand gets to have an enormously far-reaching control on its clients. The client must do all he or she can to remain in favour with the patron, meaning that confessors aimed to thoroughly comply with the RPF on all fronts in fear of losing its protection. Confessors thus mirrored their patrons’ ideology not only in public, but also in private settings. As a consequence, the RPF gained numerous ardent supporters throughout the country by releasing confessors from prison. These clients dotted the small communities throughout the hills of Rwanda and became agents of the RPF, raising support for and compliance with their rule and gradually reducing any obstruction or hostility against their patron.221 Aiding the securing of political domination by the RPF was yet another consequence of the Gacaca courts. It ties in with the effects of the legally mandated denunciations surrounding the Gacaca courts. Rwandans responded to this mandate en masse and – not unlike during the genocide – seemingly had little qualms denouncing those extremely close to one’s own. Families of accused génocidaires struggled to make a living and turned to the government for help and benefits. Groups that killed together during the genocide were broken up as some confessed others in the hopes of RPF favours. Anti-RPF individuals became isolated and were less likely to conspire against the government. With denunciations rampant, ordinary Rwandans became paranoid and started to pre-emptively fall into line with the RPF rule for their own safety. The practice of denunciation thus not only dissuaded enemies of the state, it also urged civilians into the fold of the RPF.222

220 Ibidem, 170. 221 By confessing and entering the clientelist relationship with the RPF, the confessors automatically discredited Hutu elites from the past, present and future, whilst also accrediting Tutsi elites and by extension the RPF at the same time, Chakravarty, 174, 196 – 197. 222 Chakravarty, 206 – 207.

52 Analysing the use of history and kinds of truth In the following section the transitional justice mechanisms will be analysed with the frameworks from Chapter one in mind. As stipulated by De Baets, abuse of history can occur on three different levels: the heuristic, the epistemological and the pragmatic level. Heuristically, abuse has taken place in Rwanda when its government interfered with the ICTR due to their conflict over the trials on RPF crimes. It stopped cooperating with the research teams, denied access to sources and in doing so influenced the possibilities to conduct proper research. On the epistemological level, abuse has occurred with the creation of the anti divisionism laws. Their limiting effect on public discourse has influenced outcomes, as is moreover described in the analysis of the Gacaca courts. Finally on the pragmatic level, the reception of the Gacaca courts as portrayed by the government’s final report on the system differs starkly form the way it is described by other authors found in this chapter.223 This leaves the question what kinds of truth are associated with Rwanda’s transitional justice practices. The factual, forensic or legal truth as described by the SATRC, Ingelaere and Clark is mostly found in the proceedings of the ICTR. To a lesser extent this kind of truth was also established through the Gacaca courts, as many factualities of crimes were uncovered, except those concerning crimes perpetrated by RPF soldiers. A narrative truth that is based on personal recollections of the past can be found in the many testimonies throughout cases of the ICTR, the domestic courts and the Gacaca courts. More interestingly is the social truth, one that is established through interaction, discussion and debate. It moreover is about having a transparent and democratic discourse that is broadcasted to the public. This kind of truth therefore is less easily found in formal legal procedures like a court sitting but all the more so in more dynamic environments. Gacaca courts provided a stage for the development of a social truth, with the caveat that the openness and democratic value of the debates were hampered by the anti divisionism laws and the efforts to speed up the proceedings. The laws against divisionism have equally impeded the full fruition of a healing or restorative truth. Crucial to the healing truth is acknowledgement of past crimes. The three judicial institutions discussed in this chapter have contributed to the acknowledgement of many crimes committed during the genocide, but here again the refusal to handle RPF crimes has denied a part of Rwanda’s population access to a healing truth. According to Ingelaere an effectual truth reigned during the Gacaca court sessions. With an effectual truth, true is that which has the desired consequences given the circumstances. Ingelaere links this to the Rwandan concept of

223 National Service of Gacaca Courts, 275, states: “Gacaca Courts ended their activities successfully and Rwandans are proud of the giant step made.”

53 ubwenge and states that it was the practice during Gacaca hearings to confess or testify in such a way as to gain the most from each situation. In assessing the role of Rwanda’s transitional justice mechanisms in the discourse of the genocide it has appeared that abuse of history has taken place on three levels. The difference between abuse and irresponsible use lies in the intent according to De Baets. It is difficult to prove intent in these cases. But at the risk of treading too much in territory of speculation, it can be stated that there are enough motives described in Chapter two to make it plausible to believe that history

Conclusion This chapter has shown how the multiple transitional justice mechanisms used in post- genocide Rwanda functioned and in what way they contributed to the historiography of Rwanda’s genocide. It has first analysed the theoretical background of transitional justice, how it has developed throughout the years and how it has been practiced in post-genocide Rwanda. The cocktail of transitional justice mechanisms that have been used there can be seen as a bridging between Teitel’s second and third phase as described in her genealogy of transitional justice. The practices in Rwanda fit into Teitel’s second phase as mechanisms like the Gacaca courts and the laws against genocide ideology were employed with state building in mind: confronting the people with their past, meeting out punishments and preventing the spread of divisionism are all ways to show off a strong, centralized government. Teitel’s third phase is represented by the ICTR that was created by the international community and relied on the notion that said community could hold a regime responsible for its actions against humanity. The coexistence and operating next and in succession to each other fits with Clark’s notion of an holistic approach to transitional justice. From all the mechanisms discussed in this chapter, the Gacaca courts also symbolise a development of transitional justice as described by Huyse. This development marked the tendency to look beyond the classical transitional justice measures and supplement or replace them with societal, or indigenous, resources. A central theme resurfaces amongst the transitional justice mechanisms that have been discussed in this chapter: this is the interference with these mechanisms by Rwanda’s ruling party the RPF. Concerning the ICTR, the RPF has tried its best to influence the proceedings and to bend them to its will. It succeeded in doing so by successfully achieving a halt to the investigations into RPF crimes by the Prosecutor. Rwanda’s government even managed to have all pending cases concerning RPF crimes be handed over to Rwandan authorities.

54 The RPF also created laws against divisionism and genocide denial. These laws in practice limited freedom of speech concerning the genocide and did so from 2001, even before the Gacaca courts started their trial phase. The Gacaca courts were installed with a set of goals, of which establishing the truth about what had happened during the genocide was one. The establishing of truth was hampered by the afore mentioned laws, but also by limitation of the scope of cases that Gacaca courts were allowed to handle and a general pressure dealt by Rwanda’s government to speed up the trial phase. In forcing the entire population to participate in the court sessions and through special relationships with the state that confessors were forced into, the Gacaca courts can be considered a tool to improve government control over its population. Using the theoretical framework from Chapter one, this chapter has furthermore demonstrated that history has been abused by the Rwandan government. The truth that is found in the transitional justice practices has parts of the factual, healing and restorative truth. However, with the glossing over of certain aspects of history and the glorifying of other aspects, the resulting truth of Rwanda’s transitional justice efforts are more akin to Ingelaere’s concept of an effectual truth.

Conclusion By now we know about frameworks about use and misuse of history and different definitions of truth; the state of the historiography of Rwanda’s genocide along with its key debates; and transitional justice practices in Rwanda. Chapter one has provided this thesis with a theoretical framework about the use and abuse of history. This can happen at multiple times: before, during and after the research. More importantly, this chapter gave insights in a number of different definitions of truth that were formulated by scholars and the SATRC. Chapter two has shown that debates exist on key elements of the historiography of Rwanda’s genocide, like the responsibility of Habyarimana’s death or the genocide’s death toll. The common denominator in all these debates is the involvement of Rwanda’s

55 government in them. Rwanda’s political elite has chosen a specific narrative of the genocide and stands by it. Because the direct line from todays government to the RPF during the genocide, this narrative serves to legitimize today’s elite both nationally and internationally. Any serious deviation from the official narrative therefore means a potential loss of face, legitimacy or authority for the RPF. The government accordingly tries to manipulate the debate. Overtly critical researchers like Alison Des Forges, Filip Reyntjens and Human Rights Watch are prohibited from entering Rwanda. The example of Judi Revers also shows that these people become targets of smear campaigns. At the same time researchers and writers who confirm the RPF’s preferred narrative are held close. According to the theory provided by Antoon de Baets, this inference with research through denying access to sources and influencing reception of outcomes through honouring only certain researches while denouncing others is abuse of history both at the heuristic and pragmatic levels. In Chapter Three we saw what kind of transitional justice mechanisms were implemented in Rwanda. It showed that in the mechanisms, like the ICTR, the laws against divisionism and the Gacaca courts, the RPF tried to influence the outcomes and aspects of the resulting narratives. At the ICTR Kigali put severe pressure on the Prosecution Office throughout the mandates of all Chief Prosecutors but Jallow’s in order to drop investigations in to crimes committed by RPF personnel. This only stopped when Jallow dropped the investigations and transferred the cases to the Rwandan justice system. Furthermore, the public debate on the genocide became seriously restricted with a set of laws designed to combat divisionism and genocide ideology. The Gacaca courts, tasked amongst other things with establishing the truth of what had happened, were redesigned and altered multiple times in order to speed up proceedings. Linking these findings with those of Chapter one resulted in the conclusion that the Rwandan government has abused history during transitional justice mechanisms like the ICTR and Gacaca courts. This abuse happened at all three levels described by De Baets: heuristic, epistemological and pragmatic. Concerning the kind of truth that resulted from the Rwandan transitional justice institutions, this thesis had found that the official narrative of Rwanda’s government has elements of the factual, narrative, social and healing truth. There are however certain elements found in these institutions that prohibit the full fruition of any of these truths. Certain facts are ignored, certain aspects cannot be talked about and certain victims are not acknowledged. This makes the resulting truth closely resemble a truth described by Bert Ingelaere: the effectual truth. The effectual truth finds true that which has the desired consequences given

56 the circumstances. This truth is inherently subjective, but in Rwanda it is officially enforced by law. Throughout the latter two chapters of this thesis it has become clear that there are still apparent divides within Rwanda. The disconnect between Hutu and Tutsi still continues and is compounded by the return of many refugees after the genocide. Transitional justice mechanisms like Gacaca courts have not succeeded in bridging these gaps between identity groups, despite what official reports tend to say. The Gacaca courts have arguably reaffirmed these differences due to the fact they did not provide a platform to discuss crimes that were committed by RPF soldiers. Doing so has differentiated the factual or forensic truth from the narrative/pragmatic truth: what is forcefully accepted in Rwanda as the truth of what happened differs from what can be construed from corroborated facts and research. In this regard I would like to shift attention to post-war Germany. There too, a reluctance or incapability to deal with the past can be seen. Collective amnesia or vanishing acts are terms described for incompletely remembering acts and events of the past. This was only an initial attitude towards the history however. Authors like Katharina von Kellenbach and Susanne Karstedt have shown how it were the third and fourth generations following the war who were able to have a more frank and open attitude towards their history.224 Perhaps if Rwanda will be given the time a similar development can occur. This thesis is not without limitations. It has not made any new claims about the genocide itself, it rather followed what others have written about it and analysed where debates exist. In doing so this research is limited by my insufficient knowledge of French. Due to Rwanda’s history French still is an important language in Rwanda. A large part of the body of work on Rwanda’s genocide and the writers on the genocide are French. As the bibliography exemplifies, French works have only been used in this thesis when an English translation exists. Furthermore, this thesis has a rather large scope. Covering both a Meta analysis of the historiography and Rwanda’s transitional justice mechanisms and linking these subjects about notions of rightful use of history and truth is a lot. Due to this extensive scope this research cannot cover every aspect that is handled as thoroughly as the next one. The theoretical framework of De Baets moreover explicitly mentions intent as a key difference between mere irresponsible use and abuse of history. Just as with the Genocide Convention,

224 Susanne Karstedt, “The Life Course of Collective Memories: Persistency and Change in West Germany between 1950 and 1970,” Polish Sociological Review, 1, 165 (2009): 27-38; Katherina von Kellenbach, “Vanishing Acts: Perpetrators in Postwar Germany,” Holocaust and Genocide Studies, 17, 2 (Fall 2003): 305-329.

57 intent is difficult to prove. This means that the conclusions of this thesis are more speculative than factual. Further research is needed to be able to overcome this speculative character. A study that has a more focussed scope and concerns specifically what I described in Chapters two and three that also sees more use of French sources has more chance to provide answers that lean more towards indisputability than speculation.

58 Bibliography

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