- The Oxonian Review - http://www.oxonianreview.org/wp -

Judging Genocide on the Grass

Phil Clark

Peter Harrell
Rwanda’s Gamble: Gacaca and a New Model of Transitional Justice
Writers Club Press, 2003
130 pages

Beside a lake on the Rwanda-Burundi border, I sat on a wooden stool in a nervous crowd gathered beneath a tattered blue tarpaulin shielding them from the midday sun. Before them on a long, wooden bench sat 19 elders, mostly middle-aged men and women, led by a young man – the President of the panel – who stood and addressed the gathering. The President explained that in the crowd was a group of prisoners, released from jail that week, who had confessed to committing genocide crimes nine years earlier, in 1994. The task of the gathering, the President explained, was to listen to anyone in the village who witnessed these crimes, to hear from the victims’ families accounts of the pain they had experienced since losing loved ones during the genocide, and for the 19 judges – elected by the community for their wisdom and dedication to peace, truth and justice – to decide the cases of those charged with genocide crimes.

A murmur went through the gathering as a prisoner walked to the front, standing between the crowd and the line of judges. The man, head bowed, explained that he wanted to confess publicly to killing his neighbour’s wife in May 1994. He pulled the woman out of the bushes, he said, where she was hiding as gangs of killers walked the paths of the village searching for Tutsis, then slashed her twice across the throat with his machete and left her to die. The murmur in the crowd rose as the prisoner said that he was sorry for what he had done and that he now wished to beg forgiveness from the dead woman’s family, particularly from her husband whom he had considered a good friend.

This scene is a common one in nearly 11,000 towns and villages across Rwanda that are taking part in a new communal justice and reconciliation programme known as ‘gacaca’ (pronounced ga-CHA-cha and derived from the Kinyarwanda word meaning ‘on the grass’, referring to the outdoor setting in which the hearings take place). Gacaca is a creative, local response to the devastating legacies of the genocide. In 1994, nearly 120,000 genocide suspects – mostly Hutus – were rounded up and transported to jails built to hold only 40,000. Most detainees were never formally charged with any crime and were forced to live in hellish conditions, underfed, drinking dirty water and crammed into tiny rooms where they slept on top of one another in latticework formations. Outside the prisons, genocide survivors cried for justice and to know the truth of who had killed or injured their loved ones in 1994.

The Rwandan judicial system, decimated by the genocide, was overwhelmed by the number of detainees. Nearly ten years after the genocide, only around 7,000 Rwandans have been tried, at which rate it will take 200 years to hear the remaining cases. The United Nations-run International Criminal Tribunal for Rwanda (ICTR), based in Tanzania and responsible for hearing the cases of the highest-level orchestrators of the genocide, has also proven largely ineffective, hearing only 20 cases and producing 17 convictions in nine years. While the national courts and the ICTR are necessary to try the most serious genocide cases, a new system of justice was needed to try lower-level suspects in order to decrease the overflowing prison population and, more importantly, to begin reconstructing the torn fabric of Rwandan society.

In January 2001, the Rwandan Government enacted the Gacaca Law, controversially transforming the traditional institution of gacaca, which had been practised in Rwanda at least since the 19th century. Gacaca hearings traditionally dealt with uncomplicated communal disputes related to land use, livestock or damage to property. Hearings were conducted outdoors either on a patch of grass or in the village courtyard and were overseen by male heads of households. Women were forbidden from taking part as witnesses. The primary aim of gacaca was not punitive justice but reconciliation: to restore a sense of social cohesion by facilitating a face-to-face resolution between victims and perpetrators. Any punishments handed down by the village elders incorporated a restorative element, often the sharing of food or beer between previously antagonistic parties, and never resulted in the imprisonment of the guilty.

Gacaca, in the post-genocide environment, maintains the outdoor setting of the traditional hearings and the high value placed on the community’s participation in electing judges and deciding the guilt or innocence of the accused. Modern gacaca differs greatly from the more traditional version, however, by relying on written law, involving women both as judges and witnesses, and by sentencing those found guilty of genocide crimes to prison terms. These sentences are greatly reduced, however, and often commuted to forced labour in the community if perpetrators confess before their crimes are exposed at gacaca.

Not surprisingly, the modernisation of gacaca has shocked many observers, particularly international lawyers concerned with due process for Rwandan criminals after the genocide. Gacaca’s most controversial feature is mass involvement of the population in hearing and prosecuting cases. Lawyers are barred from all hearings because the makers of gacaca argue that in order to create an environment where truth and reconciliation are possible, it is necessary to avoid the adversarial nature of more conventional courts, where victims rarely have the chance to talk openly of the pain they have suffered or to engage meaningfully with perpetrators. Excluding lawyers from gacaca is also meant to maximise the community’s sense of ownership over the process. Many international observers worry about the potential intimidation of witnesses and the likelihood of reprisals against genocide suspects. In a community that is so traumatised and riven with ethnic tensions, the observers ask, won’t gacaca simply lead to mob justice and a return to the violence of the past?

Peter Harrell’s Rwanda’s Gamble: Gacaca and a New Model of Transitional Justice is the first book-length academic investigation of gacaca as a response to genocide crimes. According to the publisher’s blurb, Harrell’s work is based ‘on interviews, training manuals, documents never-before-published in the United States, and extensive travels throughout Rwanda’. Beginning with a lengthy history of Rwanda and an explanation of the complex mechanics of gacaca, Harrell outlines his main argument: that an undue emphasis on punitive justice – what he calls the ‘liberal-prosecutorial model of transitional justice’ – has come to dominate international thinking and practice toward dealing with post-conflict situations. This model incorporates three components: the international prosecution of the main orchestrators of violence (usually through a war crimes tribunal), domestic prosecution of subordinates, and the creation of a truth commission to record the official history of crimes. At best the liberal-prosecutorial model is an agglomeration of different post-conflict remedies from around the world. Harrell’s point seems to be that this model represents the range of key options for decision-makers when faced with rebuilding post-conflict societies. He claims that leaders tend to focus solely on punishing the perpetrators of crimes while questions of truth and reconciliation are often sidelined, if they are considered at all.

Harrell argues that this model failed in Rwanda for two reasons. I have already mentioned the first: conventional justice methods could not cope with the immense backlog of genocide cases. The second reason, according to Harrell, is that the efforts of the national courts and the ICTR failed to provide for a raft of ‘utilitarian goals…of transitional justice‘, including upholding the rule of law and facilitating reconciliation.

What countries like Rwanda need instead, argues Harrell, is a new model: ‘communitarian restorative transitional justice’. This concept is not so much a model as a different set of justifications for the punishment of perpetrators of mass violence. Harrell quotes Durkheim’s argument that the real reason we punish criminals is to preserve an accepted form of communal morality and to educate the population about the utilitarian wrongness of crimes such as murder. Justice, Harrell argues, is not a sufficient endpoint in itself but that it should be employed to facilitate reconciliation. The communitarian restorative model entails that ‘instead of centralised state-administered courts meting out formal justice, less formal local committees must take control of justice…promote reconciliation…and prepare communities to welcome back wrongdoers after they complete their punishment’.

According to Harrell, gacaca is a prime example of communitarian restorative justice because it ‘emphasise[s] local forums, popular participation, deliberative rather than adversarial procedures, and penalties that have a restitutional component’. As the title of his book suggests, Harrell also recognises that there is a significant risk involved in employing the communitarian restorative model in Rwanda. The gamble of gacaca is the hope that the fractured Rwandan community will embrace the modernised institution and pursue justice and reconciliation peacefully and truthfully. Weighing these risks, Harrell concludes that ‘[i]f any form of justice can help Rwanda create a new moral ethic, lasting stability, and reconciliation, gacaca is it’.

Gacaca is indeed risky, revolutionary (with regard to international norms of justice for post-conflict societies), and probably Rwanda’s only hope of achieving something resembling truth, justice and the reconciliation of genocide perpetrators and survivors. Rwanda’s Gamble is important because it is the first detailed and lengthy attempt by a Western author to explain to the outside world how gacaca functions . The world will soon focus keenly on Rwanda as April 2004 marks the tenth anniversary of the genocide. Gacaca, as the key institution related to post-genocide justice and reconciliation, will be a hot issue. Harrell can rightly claim to have beaten all but a small community of scholars and NGO observers to a study of gacaca, highlighting its importance before the world’s media descends on Rwanda in droves.

Being the first to cover gacaca at length, unfortunately, does not guarantee covering it well. Alarm bells start ringing in Harrell’s introduction, when he begins describing his ‘extensive travels‘ around Rwanda with the penetrating insight that ‘[l]ike much of the developing world, Rwanda is a contrast of old and new. People live in mud-and-banana-leaf buildings a stone’s throw from signs hawking South African-based cellular carrier MTN’s local service’. Harrell rarely speaks to the people who live in these buildings to find out what life is really like in Rwanda after the genocide. He appears to have spent little time in Rwanda besides the ten days in which he conducted his 13 interviews, mostly with Government officials and Western NGO workers. Along with the key legal texts governing gacaca, these interviews form the central plank of his fieldwork. In trying to understand gacaca, Harrell gives no account of what the general population thinks of the institution, citing no interviews with genocide suspects or survivors.

Harrell conducted his fieldwork in early 2002, several months before the official opening of gacaca around the country, so he was unable to view this form of gacaca in practice. However, other forms of gacaca were running at the time of his visit – in its traditional form in many communities or, more crucially, in a test-run in selected genocide prisons. Harrell refers to these forms in passing but he provides no firsthand analysis. This is Contiki tour fieldwork and goes a long way towards explaining Harrell’s flimsy grasp of what gacaca means for everyday Rwandans.

This is not to suggest that the main thrust of Harrell’s argument is misguided. Harrell is undoubtedly correct in questioning the prevailing belief that pursuing punitive justice after mass violence is enough. Simply punishing criminals will not fulfil the immense needs of the Rwandan population after the genocide, especially that of rebuilding fractured personal and communal relationships. But in arguing that other social goods (such as truth and reconciliation) are also vital in societies such as Rwanda, Harrell gives no compelling reasons for why these ends should be pursued at the expense of some degree of punitive justice. For example, Harrell fails to adequately justify gacaca’s system of plea bargaining that seeks to foster truth and reconciliation by offering reduced prison sentences (and thus prisoners’ earlier return to their home communities, where they will often live side-by-side with genocide survivors) in exchange for perpetrators’ confessions of their crimes. Harrell’s justification for gacaca’s move from retributive to restorative justice amounts to little more than listing the pragmatic advantages of a fast, cheap system of justice that will empty the prisons and rapidly reintegrate genocide perpetrators into their home communities. It is precisely this sort of argument that sends a chill through international lawyers and donors.

In Harrell’s analysis of gacaca there is little of the ‘communitarian’ ethos that he claims is central to the new model of transitional justice with which he tries to link gacaca. For example, Harrell neglects the ways in which certain Rwandan understandings of human identity, particularly the importance of individuals’ embeddedness in local communities, inform gacaca’s response to the community-destroying effects of the genocide. Archbishop Desmond Tutu has stressed the importance of identity in the context of the TRC in South Africa, an institution from which Harrell partly draws his interpretation of gacaca. For Tutu, forgiveness and reconciliation are the most important aims of a structure such as the TRC because they express the deepest needs of ubuntu, a worldview that holds that individuals only gain an authentic sense of being and purpose through the communities in which they live, that ‘a person is a person through other persons’.1

The biggest problem, though, with Harrell’s critique of gacaca is the incidental link he claims to have discovered between gacaca and his own model of communitarian restorative transitional justice. Harrell’s argument seems to be that his overarching theory is applicable in most post-conflict societies and that gacaca is simply a derivative of this model. The ordering here is disingenuous, as gacaca not only embodies precisely the two main components of communitarian restorative justice – the need for justice to be educative and reconciliatory – but it goes far beyond this to create a complex galaxy of truth-telling, communal healing and forgiveness centred around the key aims of interpersonal and national reconciliation. Harrell fails to acknowledge the extent to which gacaca has undoubtedly informed and inspired his own theoretical argument. Consequently his argument, in an academic sense, mirrors the colonial looting of tribal artefacts, as he parades his findings in the gleaming museum of a new theoretical model.

Had Harrell spent more time listening to the population’s views on gacaca, he would have discovered that there is no overall interpretation of gacaca that can be summarised neatly in any academic theory. Gacaca means many things to different people, reflecting the widely-varying needs and cultural influences – local and Western, legal, political and religious – that have shaped the practice. In some communities with relatively high literacy rates, participants insist on keeping near-verbatim transcripts of gacaca hearings in order to construct a detailed historical account of the genocide in their particular community and of its lasting effects on the local population. In communities with large numbers of genocide survivors, gacaca is often viewed as a forum for communal healing, and local elders spend many days counselling those suffering from emotional and psychological trauma. In reality, there are as many interpretations and practices of gacaca as there are individual experiences of the genocide.

Perhaps the superficiality of Harrell’s work would be less concerning if his audience were only a small group of Western academics. However, as the first book-length analysis of gacaca, Rwanda’s Gamble has already gained a worldwide readership (I bought my copy in a bookstore in Nairobi) and it is likely to become more popular given this year’s commemoration of the tenth anniversary of the genocide. As journalists and international policy-makers descend on Rwanda, they should speak to genocide suspects and survivors and observe gacaca for themselves, rather than rely on Harrell’s itinerant account of this necessary gamble on Rwanda’s future.

As one genocide survivor, who watched her husband and two children hacked to death nearly ten years ago, told me at the gacaca by the lake: ‘We want everyone to know what happened to us because when it happened no one heard us crying, no one cared. At gacaca we come together, the killers and the survivors, and we talk like a family as in the old days. Sometimes we are silent, sometimes we fight. But we want to show everyone we can solve our own problems and we can live together in peace again.’

Phil Clark [1] is an Australian D.Phil student in Politics at Balliol College, Oxford. He was born in Sudan and grew up in Ghana and Cote d’Ivoire. His doctoral thesis examines post-genocide justice and reconciliation in Rwanda and issues of reconciliation and forgiveness in post-conflict societies more broadly.