Rwanda's Gacaca Courts Between Retribution and Reparation

by Bornkamm, Paul Christoph

• ISBN13: 9780199694471
• ISBN10: 0199694478
• Format: Hardcover
• Copyright: 2012-03-21
• Publisher: Oxford University Press

Summary

Rwanda's Gacaca Courtsprovide an innovative response to the genocide of 1994. Incorporating elements of both African dispute resolution and of Western-style criminal courts, Gacaca courts are in line with recent trends to revive traditional grassroots mechanisms as a way of addressing a violent past. Having been devised as a holistic approach to prosecution and punishment as well as to healing and repairing, they also reflect the increasing importance of victim participation in international criminal justice. This book critically examines the Gacaca courts' achievements as a mechanism of criminal justice and as a tool for healing, repairing, and reconciling the shattered communities. Having prosecuted over one million people suspected of crimes during the 1994 genocide, the courts have been both praised for their efficiency and condemned for their lack of due process. Drawing upon extensive observations of trial proceedings, this book is the first to provide a detailed analysis of the Gacaca legislation and its practical implementation. It discusses the Gacaca courts within the framework of transitional and international criminal justice and argues that, despite the trend towards local, tailor-made solutions to the challenges of political transition, there is a common set of principles to be respected in addressing the past. Evaluating the Gacaca courts against the backdrop of existing or emerging principles, such as the duties to investigate and prosecute, and the right to the truth, the book provides a sophisticated critique of Rwanda's reconciliation policy. In doing so, it contributes to the development and the clarification of these principles. It concludes that Gacaca courts have achieved a great deal in stimulating a basic discourse on the genocide, but they have also contributed to assigning collective responsibility and may thus end up deepening the divides within Rwandan society.

Author Biography

Paul Christoph Bornkamm has been a senior research fellow at Humboldt University of Berlin since 2007 and a junior lawyer at the Higher Regional Court of Berlin since 2009. He has taught and worked on national and international criminal law as well as transitional justice in Germany and South Africa.

Table of Contents

Table of Cases	p. xi
Table of Treaties and Other Relevant International Instruments	p. xix
Table of Legislation and Other Relevant National Instruments	p. xxi
List of Abbreviations	p. xxvii
Introduction	p. 1
Gacaca: Transitional Justice in Rwanda	p. 1
Between Retribution and Reparation: An International Legal Framework for States in Transition	p. 4
Scope of the Study	p. 6
Methodology	p. 7
A Short History of the Rwandan Genocide and its Aftermath	p. 9
The Origins of the HutuùTutsi Antagonism	p. 9
The First and Second Republic	p. 10
Genocide 1990-94	p. 14
The Refugee Crisis and the War in Zaire/Congo	p. 17
Rwanda Today	p. 19
Dealing with the Events between 1990 and 1994	p. 22
The Implementation of Modern Gacaca	p. 31
Traditional Gacaca	p. 31
The Introduction of lnkiko Gacaca	p. 35
The Structure of the Gacaca System	p. 46
The Jurisdiction of Gacaca Courts and the Applicable Substantive Law	p. 48
The Pre-Trial Phase: Investigation and Categorization	p. 61
The Trial Phase	p. 65
The Appeals Phase	p. 70
Sanctions Imposed by Gacaca Courts	p. 75
Civil Claims for Damage to or Loss of Property	p. 85
Monitoring Gacaca Activities	p. 87
Transitional Justice Through Prosecution	p. 91
The Prosecution of Crimes under International Law: Rwanda's Obligations	p. 91
The Limits of Prosecution	p. 96
The Implementation of the Duty to Prosecute: Trials and Local Mechanisms	p. 98
Locating Gacaca between Retributive and Restorative Justice	p. 100
Gacaca Courts and International Law	p. 103
Transitional Justice Through Reparation	p. 119
The Right to Reparation for Human Rights Violations under International Law	p. 120
Reparation for Human Rights Violations in Post-Genocide Rwanda	p. 131
Who Is Entitled to Reparation?	p. 145
Who Is Liable to Pay Reparation?	p. 149
Conclusion	p. 158
Conclusion	p. 158
Summary of the Study's Principal Results	p. 158
Outlook	p. 161
Learning Lessons from the Gacaca Experience	p. 164
Appendix	p. 167
Glossary	p. 207
List of References	p. 209
Books and Articles	p. 209
Print and Online Journalism	p. 227
Reports and Manuals	p. 228
International Organizations: Resolutions, Reports, and Other Instruments	p. 233
Index	p. 237
Table of Contents provided by Ingram. All Rights Reserved.