Adjudicating the Perpetrators of Genocide: a Preliminary Investigation Into The

UNIVERSITY OF CALGARY Adjudicating the Perpetrators of Genocide: A preliminary investigation into the judicial response to genocide in Rwanda by Nicholas A. Jones A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY DEPARTMENT OF SOCIOLOGY CALGARY, ALBERTA August, 2006 © Nicholas A. Jones 2006 Abstract The research presents an exploratory and comparative analysis of the International Criminal Tribunal for Rwanda (ICTR), the Rwandan National Judiciary, and the Gacaca Courts. These three judicial arenas are involved in the process of adjudicating approximately 750,000 perpetrators of genocide. The research involved three field excursions to Rwanda and Tanzania. Many of the key actors in the judicial processes were interviewed, the courts were observed and various documents were collected. The research incorporates a theoretical framework that includes restorative and retributive justice. Although the research is exploratory in nature, the “jury” as it were, remains “out”, a number of conclusions were nonetheless drawn. The achievement of simply engaging in such a monumental task must be applauded. Especially within Rwanda, and more specifically, the Gacaca, the process can be seen as the largest community-based judicial undertaking in recent history. The Rwandan National Judiciary is undergoing a massive reconstruction effort to establish the Rule of Law. The work of the ICTR has produced significant international jurisprudence that may have its impact at the International Criminal Court. Despite these significant achievements a number of contradictions also became apparent. Continuity in the efforts of the three judicial realms was not observed. Rather a distinctive and pervasive discontinuity appeared between the Rwandan and the international efforts. There was also a politicization of the judicial processes that undermines the overall notion of achieving justice for the ii victims. Additionally, a discontinuity in the allocation of resources was readily apparent. The ICTR operates on a budget over twenty times that of the entire Rwandan Judiciary while only addressing perhaps 100 of the three quarters of a million perpetrators. The ability of the Rwandan effort to successfully address the enormous number of cases is a final issue that became evident during the course of the research. The Rwandan judicial system appears to be ill-equipped to handle the burden of a case-load of such proportions. Despite the limitations and contradictions that were observed, the success of the judicial response to genocide may lie in the fact that the effort brings to the forefront recognition of the atrocities that took place. iii Acknowledgments I would like to begin by thanking Dr. Augustine (Gus) Brannigan for his guidance, expertise, support, encouragement, and continued belief in me, during the course of this research project. Thanks for the “pat on the back” and the “kick in the butt,” whichever was needed at the time. Without you, this life- changing research would have never taken place (especially without the funding from your SSHRC grant). Next I would like to express my sincerest gratitude to everyone who assisted in the research during my field research in Rwanda and Tanzania. To those within the Rwandan National Judiciary, the National Service of Gacaca Jurisdictions, and the International Criminal Tribunal for Rwanda who facilitated and participated in the research and made my time in Africa memorable, thank- you. I would especially like to extend my appreciation to Richard Renaud who not only played a key role in the research process, but also welcomed a fellow Canadian into a foreign world. A special thanks to Innocent Bizimana who volunteered his time on many occasions to translate the proceedings at the Gacaca courts. With regard to the research process upon my return to Canada, I would like to express my gratitude to two other individuals: Lucie Pratt for her work in translating documents collected in Rwanda into English, and my mother- in-law Shirley McAuliffe, for her tireless efforts in assisting in the transcription of the interviews, thank-you. I would like to acknowledge the members of the committee, Dr. James S. Frideres, Dr. Erin Gibbs Van Brunschot, Dr. Joe Hudson, Dr. Gerry Caplan, and iv Dr. Richard Wanner (who played an unpredicted additional role superbly) for all of their time and hard work in reading and evaluating the research. The insights that you presented are appreciated. This research represents the cumulative efforts of a number of people who have supported me from the very beginning of my graduate career. Thank-you to all of the staff and faculty in the Department of Sociology at the University of Calgary for providing a collegial, friendly and supportive atmosphere in which to engage in the process of learning. Special thanks to Dr. Linda Henderson who has been a wonderful support and friend in my transition from her student to her colleague. Additionally, to Dr. Holscher, Lou, you believed in me from the outset, and supported me throughout the process, thanks. To the other students in the department, especially: Leslie-Anne, Roland, Anita and Jay thanks for the laughs, the drinks, and the opportunity to engage in successfully navigating the “hurdles” of grad school with good friends. My gratitude for the support of my parents is never-ending, a testament to their unwavering love and support. They have instilled in me their own thirst for knowledge as a life-long adventure. And finally, to my best friend, my wife, Kelly, words cannot express the joy that I have experienced having you by my side throughout this adventure. Your love and support were truly instrumental in my achievement of this degree; this has been a team effort, and I share this with you as a full partner. v I would like to dedicate this work to the victims and survivors of the Rwandan Genocide in 1994, as well as all those currently striving to achieve justice and reconciliation in a country that demonstrates strength and determination as they continue to move forward despite this tragedy of the past. vi Table of Contents Abstract ……………………………………………………………………. ii Acknowledgements ………………………………………………………. iv Dedication …………………………………………………………………. vi Table of Contents…………………………………………………………. vii List of Tables and Figures……………………………………………….. x CHAPTER ONE: INTRODUCTION TO THE RWANDAN GENOCIDE AND THE JUDICIAL RESPONSE……………………………………… 1 Prelude…………………………………………………………….. 1 What is genocide?................................................................... 6 The Adjudication of the Rwandan Genocide………………….. 12 The International Criminal Tribunal for Rwanda (ICTR). 16 The Rwandan Criminal Courts………………………….. 18 The Gacaca Courts………………………………………. 21 Other Relevant Jurisdictions…………………………………….. 25 Military trials……………………………………………….. 26 Genocide trials in other foreign jurisdictions…………… 29 The Research Process…………………………………………… 31 Interviews with Key Informants………………………….. 33 Documentary Data………………………………………... 35 Observational Data……………………………………….. 36 Looking Forward………………………………………………….. 37 CHAPTER TWO: A THEORETICAL FRAMEWORK FOR JUSTICE IN THE AFTERMATH OF GENOCIDE………………………………………….. 38 A Short History of Ethnicity and Politics in Rwanda………….. 39 Pre-Colonial Ethnic Relations and “Political” Organization………………………………………………. 39 The Colonial Era: The Institutionalization of Ethnicity and the Creation of Tutsi Political Dominance… 41 The Hutu “Social Revolution” in 1959: The Reversal of Ethnic Politics………………………………….. 44 Post-Colonial Rwandan Political Structure: The First and Second Republics: 1959 – 1992.…………. 47 The Arusha Accords 1992………………………………. 50 Key Elements of the Rwandan Context……………………….. 52 The International Context………………………………………... 59 vii Conceptual Framework…………………………………………... 60 Retributive and Restorative Justice……………………... 65 Cosmopolitan Law………………………………………… 68 Liberal-Legalism: The Use of Trials within the Context of Crimes Committed During Armed Conflict………….. 71 CHAPTER THREE: THE GACACA COURTS………………….……… 78 The History and Development of the Gacaca………………….. 80 Anthropological Considerations…………………………. 81 Legal Considerations……………………………………… 84 Religious Considerations…………………………………. 95 Gacaca Courts and the Search for Justice…………………….. 97 Gacaca Courts: Restorative or Retributive Justice?................. 100 Liberal Legalism and the Gacaca Courts………………………. 105 Responsive Regulation: An explanatory framework?............... 107 CHAPTER FOUR: THE RWANDAN NATIONAL JUDICIARY………. 110 Historical Development of the Rwandan Judiciary……………. 111 Problems facing the judiciary immediately following the genocide…………………………………………………… 112 A System in Transition: Judicial Reform……………………….. 122 CHAPTER FIVE: THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA……………………………………………………………. 134 Factors Contributing to the Creation of the ICTR……………… 135 The ICTR: Organizational Structure…………………………….. 142 The Chambers…………………………………………….. 143 The Office of the Prosecutor (OTP)…………………….. 147 The Registry………………………………………………. 153 The ICTR Statute and the Concept of Jurisdiction……………. 156 Jurisdictional Mandate of the ICTR and Suspected Crimes of the RPF…………………………………………………. 159 ICTR Cases and Budget…………………………………………. 164 Liberal Legalism…………………………………………………… 166 CHAPTER SIX: INTERNATIONAL JURISPRUDENCE: DEFINITIONS OF THE CRIMES AND THE KEY PRECEDENTS………………………………. 168 The ICTR Statute and the crimes it is charged with prosecuting………………………………………………… 169 Genocide…………………………………………………………..

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