Punishment, Postgenocide: from Guilt to Shame to Civis in Rwanda
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PUNISHMENT, POSTGENOCIDE: FROM GUILT TO SHAME TO CIVIS IN RWANDA MARK A. DRUMBL* Following the 1994 Rwandan genocide, nationaland internationaltrials set out to encourage nationalreconciliation, promote peac punishperpetrators, foster a cul- ture of human rights, and effect justice In this Articl, Professor Mark Dnmbl questions the ability of these trials to achieve these goals and suggests they may in fact aggravate ethnic identify politics, thereby threatening Rwanda's long-term sta- bility. He arguesthat the highly interdependentyet dualist natureof Rwandan soci- ety, together with the widespread level of participationin and victimization by the genocide, create a situationwhere accountabilityfor the violence and the deterrence of future violence can be pursued more effectively through the restorative cultiva- lion of shame, rather than through the retributive imposition of guilt. Although criminalsanction usually attaches to deviant conduct, participationin genocide in Rwanda was not particularly devian4 nor was it an individualized,pathological transgression. Professor Drumbl asks whether there might be times and places where collective wrongdoingneeds to be exposed and not hidden by the law's pref- erence for individual fault Despite the concerns that ought to be emerging from the Rwandan experience internationallawyers continue to push-with significant degrees of success-for selective criminalprosecution as a preferred, and poten- dally exclusive; response to mass atrocity. In contrast, he suggests that creating presumptions in favor of criminaltrials may preempt the supervening inquiry about the suitability of those trials to the afflicted society. ProfessorDrumbi concludes that policy responses to mass atrocity should be founded upon contextual inquiries, not driven by globalitarianor legalistic agendas, and should recognize ie unique- ness of each incidentof mass atrocity and fie uniqueness of the reconstructionpro- cess that should follow, instead of flattening that uniqueness. This may lead to a preference for flexible, polycentrie responses within and outside of what may be customarily identified by the West as the "law." * Assistant Professor, Widliam H. Bowen School of Law, University of Arkansas at Little Rock; Adjunct Assistant Professor of Law, Columbia University; madrumbl@ualredu. B.A., 1989, McGill University, M.A., 1992, Institut d'Etudes Politi- ques de Paris/McGill University; LL.B., 1994, University of Toronto; LL.M., 1993, Colum- bia University. In February and March 1998, the author volunteered as a public defender in the Rwandan criminal justice system, representing detainees awaiting trial on genocide- related charges. Thanks to Gene Mullins, Lori Damrosch, Brad Karkkainen, Ken Gallant, Tm Bakken, Philip Oliver, Kent Roach, Jos6 Alvarez, Martha Minow, Thdrtse O'Donnell, John DiPippa, Ricardo Bascuas, and Dianne Martin for helpful suggestions on earlier drafts. This Article benefited from the insight of participants in the Canadian Law and Society Association Conference (University of Sherbrooke, Canada, June 1999) and the International Conference on Sentencing and Society (University of Strathclyde, Scotland, June 1999). Appreciations to the School of Law, University of Arkansas at Little Rock, for providing the opportunity to present this project at a faculty colloquium, as well as for financial support through a generous Summer Research Grant. This Article is written in partial fulfillment of the requirements for the degree of Doctor of the Science of Law in the School of Law, Columbia University. 1221 Imaged with the Permission of N.Y.U. Law Review NEW YORK UNIVERSITY LAW REVIEW [Vol. 75:1221 Introduction .................................................... 1222 I. The Social Geography of Genocide ..................... 1235 A. A Typology of Postgenocidal Societies .............. 1235 1. The Homogenous Postgenocidal Society ........ 1236 2. The Dualist Postgenocidal Society .............. 1237 3. The Pluralist Postgenocidal Society ............. 1239 B. Rwanda as a Highly Complicitous, Dualist Postgenocidal Society ............................... 1241 1. Ethnic Integration and Division ................ 1241 2. Broad Complicity ............................... 1245 II. Restorative Justice for Radical Evil ..................... 1253 A . Sham e .............................................. 1253 B. Transforming Rwanda, Postgenocide ................ 1263 1. Reintegration through Gacaca .................. 1263 2. A Truth Commission ........................... 1267 III. Guilt: The Limits of Trials .............................. 1277 A. Trials in Dualist Postgenocidal Societies ............ 1279 B. Gridlock: The Normalization of Incapacitation in Rwanda ............................................. 1286 IV. Building a Rwandan Civis .............................. 1292 A. Creating Citizenship ................................ 1294 B. Civic Nationalism and Ethnic Accommodation ..... 1300 C. Ettnocracy in Rwanda .............................. 1308 V. The Globalitarianism of Retributive Retroactive Justice: An Admonition for International Lawyers .............. 1312 Conclusion ..................................................... 1322 Well I've been living next to you my friend But what kind of friend are you? -Supertramp, "Asylum," from Crime of the Century (1974) INTRODUCTION From April to July 1994, an estimated 800,000 people were mur- dered in an attempt to wipe out the Tutsi inhabitants of Rwanda.1 1 See G6rard Prunier, The Rwanda Crisis: History of a Genocide 261, 264-65 (rev. ed. 1997). This figure includes Tutsi victims, Hutu who opposed the genocide, and Hutu killed by an extraterritorially based Tutsi army that took control of Rwanda to end the genocide. It is difficult to estimate the number of victims, but the figure of 800,000 appears regularly in the literature. See, e.g., Letter from Kofi A. Annan, Secretary-General, United Nations, to the President of the Security Council, Annex: Report of the Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda 3, U.N. Doc. S1 1999/1257 (Dec. 15, 1999) <http://www.un.org/News/ossg/rwanda-report.htm> (citing 800,000 killed); Philip Gourevitch, We Wish to Inform You That Tomorrow We Will Be Killed with Our Families: Stories from Rwanda 4 (1998) ("[O]f an original population of about seven and a half million, at least eight hundred thousand people were killed in just a Imaged with the Permission of N.Y.U. Law Review November 2000] POSTGENOCIDAL RWANDA This death toll amounts to roughly ten percent of the Rwandan na- tional population.2 Although the majority Hutu group orchestrated the violence against the minority Tutsi group, between 10,000 and 30,000 Hutu also were slain.3 The Hutu government of Juv6nal Haby- arimana, which had ruled Rwanda since 1973, exploited and politicized the interethnic tensions that had been simmering since Rwandan independence in 1960.4 Habyarimana was assassinated on April 6, 1994; members of an even more extremist fringe of Haby- arimana's political party then assumed power.5 The genocide erupted that same day (although it had been planned for months).6 The only entity that actively sought to stop the genocide was the Rwandese Pa- triotic Front (RPF), primarily composed of Tutsi who previously had hundred days. Rwandans often speak of a million deaths, and they may be right."). For other estimates of the number of victims, see Daniel de Beer, The Organic Law of 30 August 1996 on the Organization of the Prosecution of Offences Constituting the Crime of Genocide or Crimes Against Humanity: Commentary 6 (1997) (estimating one million killed); Alison Des Forges, Human Rights Watch, "Leave None to Tell the Story": Geno- cide in Rwanda 16 (1999) (estimating at least half million deaths); Bruce D. Jones, Civil War, the Peace Process, and Genocide in Rwanda, in Civil Wars in Africa: Roots and Resolution 53,53 (Taisier K. Ali & Robert 0. Matthews eds., 1999) (estimating up to one million deaths); Alex de Waal & Rakiya Omaar, The Genocide in Rwanda and the Inter- national Response, 94 Current Hist. 156,156 (1995) (estimating number of deaths in Tutsi- Hum conflicts from 1990 to 1994 at 750,000); Alan J. Kuperman, Rwanda in Retrospect, Foreign Aff., Jan.-Feb. 2000, at 94, 101 (estimating 500,000 Tutsi and from 10,000 to over 100,000 Hum killed). An official census has been launched recently in RNanda in an effort to determine the precise number of victims. See What's News, Wall St. J., July 19,2000, at Al. 2 See Gourevitch, supra note 1, at 4 ("Decimation means the killing of every tenth person in a population, and in the spring and early summer of 1994 a program of massacres decimated the Republic of Rwanda."). 3 See Prunier, supra note 1, at 265. Before the genocide, the Hutu comprised approxi- mately 85% of Rwanda's population (estimated at seven to eight million), while the Tutsi comprised 14%. See Letter from Boutros Boutros-Ghali, Secretary-General, United Na- tions, to the President of the Security Council, U.N. Doe. S1199411125 annex 1 45 (Oct. 4, 1994); Madeline H. Morris, The Trials of Concurrent Jurisdiction: The Case of Rwanda, 7 Duke J. Comp. & Int'l L. 349, 350 (1997). These percentage distributions remain similar after the genocide due to the subsequent repatriation of lbtsi emigrds from Uganda. Also, many Hutu fled Rwanda, supra, at 352, to relocate in the Democratic Republic of Congo or farther abroad. 4 See Des Forges, supra note 1, at 3-5. 5 Human Rights Watch and journalist