Healing a nation
Approaches to transitional justice, truth and reconciliation in Rwanda
The Rwanda situation combines both retributive justice measures, including the UN tribunal and domestic justice system, with the restorative justice of the Gacaca courts.
The first thing to look at is the UN Tribunal. The UN Tribunal came about after 1994 when the Rwandan Patriotic Front (RPF) invaded the country and took over as the government. The RPF were mainly made up of Tutsis who had fled the waves of violence in the 1950's and 1960's, and so it is no wonder that once in power they decided on bringing those responsible for the Rwandan Genocide to justice. The way in which this was done was through the construction of a liberal-prosecutorial model formed by a UN and ICTR tribunals. These justice systems were retributive in nature, and designed to punish and bring about reparations for those affected by the genocide. The Rwandans wanted the UN tribunal in favour of their own domestic system mainly because their own nation was crippled from the fighting that had taken place over the years and another system was needed to bring about justice. The UN stepped in to help national reconciliation in the region and act as peacekeepers. The tribunal was also an attempt to reaffirm the politics of the UN upon the region, and show that the international community does indeed care about Rwanda.
The work of the Tribunal has produced some remarkable results in some areas. The conviction of Jean-Paul Akayesu in 1998 for genocide was the first of its kind by an international court. In 1999 the first confession of genocide came about, and had convicted eight people in all up until 2002.
Despite these landmark convictions, there have also been a lot of problems, mainly with the efficiency of the tribunal. With over 800 employees and vast resources, 8 convictions in around nine years is an extremely poor return considering the scale of the problem. The ICTR blames a lack of investigators and lack of office space, but it is more likely that the bad relations and level of communication with the Rwandan government are to blame.
The ICTR has been accused on many occasions of caving into the Rwandan government in order to maintain relations with them, including reindicted a suspect after they were cleared on a technicality.
These problems have led to large amounts of money being spent for very little return, and in turn a negative attitude towards the tribunal from both the Rwandan government and the Rwandan people. Just 36% of those polled in Rwanda in 2002 thought that the ICTR promoted reconciliation. With the 25 successful trials up until 2006 costing over $1 billion, this is hardly an encouraging statistic - over $40 million a conviction.
The fact is that the ICTR feels it cannot try anyone outside of the top officials, leaving Rwandan residents still living next to the people who attacked their homes and families.8 The government does not hold the tribunal in high esteem either, with the fact it is inefficient meaning the domestic Rwandan justice system is clogged to a standstill with those awaiting trial for genocide and other crimes. Furthermore, the government feels the tribunal is not hard enough on suspects, with the death penalty not available.
However, underlying this is the deeper problem that the current government resents the involvements of the UN because it wants to establish its own power and does not care about atoning for the sins of the country. Instead, it wants to seek justice and establish its authority, which cannot be done with the ICTR in the way. This is why many on the outside see the caving into this government as a farce, and in fact just a method to maintain another brutal regime in the country.
Overall, the ICTR has tried to establish a sense of reconciliation in the country but its inefficiency has meant that it has not acted as deterrent to future hostilities. Also, it cannot show the necessary success to suggest that this is the way forward for justice within Rwanda.
However, this was not the only method of justice being carried out in Rwanda at the time. The domestic justice system was also put in place by the government, with justice a major part of their policy. Retributive justice was supposedly needed to end the culture of impunity in the country, and so the domestic justice system went to round up those suspected of genocide. The idea was to trial around 20,000 criminals in relation to the genocide, but in the end the numbers became much larger and over 120,000 were to be charged.
The problems with this were immediately obvious. The country was crippled by the atrocities that had occurred and there simply weren't the resources to carry out such a large-scale operation. Only around 6,000 prisoners were tried in the first eight years of the system, and this left over 120,000 people languishing in prison waiting for their trial. Many of these people may not even be guilty, and are being held in poor conditions without being consulted on what they are charged with. At the current rate it would take over 100 years to clear all of these cases, and things did not look good.
Another problem with the domestic justice system in Rwanda is that it is seemingly under the thumb of the leader Tutsi-dominated government and their leader. The creation of such a domestic system was seemingly doomed from the start, as the task was too big and too much needed to be done to create this new system. Whilst the system undoubtedly moves at a faster pace than the ICTR and should be praised for this, the fact that the system may be biased and so many people who may be innocent are being held without trial in awful conditions is extremely damaging. There is a clear suggestion that this domestic system of retributive justice is doing little for the processes of justice, reconciliation and regime legitimacy in Rwanda.
The quality of justice in the domestic regime thanks to poorly qualified judges and a lack of amnesty for many of those involved in the crimes. It seems impossible to put on trial all those who were involved in the genocides at a time when such behaviour was not seen as deviant. Instead, Rwanda should learn from the examples of Mozambique and South Africa whose amnesties allowed the rule of law and justice to be established much more effectively.
It was clear that another method of justice needed to be pursued in Rwanda if reconciliation was to occur. This resulted in the creation of the Gacaca courts in 2001. These courts were a type of restorative justice aimed at easing the pressure on the domestic justice system and the ICTR. These courts were a type of modernised version of the traditional dispute resolution systems presided over by tribal elders. The Rwandans elected around 250,000 judges to mediate these courts, and proceedings began in 2002.
The courts distinguished between war crimes and genocide, only trying those who were accused of genocide in order to ease the load of cases and bring about a process of reconciliation rather than continue retributive justice. Although some believed that this process would bring about even further insecurity in amongst the Rwandan people, there was an opportunity to carry out transitional justice more effectively than before.
This was a chance for both reconciliation and justice, which were widely recognised as the only way forward for the country to allow the victims to move on from such atrocities and bring about cooperation between different groups within the country. The initial steps taken by Gacaca seemed to be extremely promising, allowing for a localised and participatory justice system that could help bring about peace and reconciliation within areas of Rwanda whilst still providing justice.
The government had little choice but to agree to Gacaca because of the huge pressure it was under from the international community thanks to the backlog of prisoners awaiting trial. However, Gacaca was blighted almost immediately with the same problems as the other measures, and many of the trials were far behind their scheduled starts. Less than half of the pilot trials had even finished their pre-trial phases, with tens of thousands of trials still waiting to start.
Despite this, the response from the Rwandan people was more positive. This type of court allowed people to hear the confessions of those who had attacked them, particularly for women who were sexually abused. The process allows for a confession from the accused and then forgiveness from the victim, which is an important part of the process of reconciliation. It also allows for compensation for the victims, which is another important step in the process of reconciliation.
Despite this, there are still dangers that the Gacaca trials fall into the trap of victor's justice. The Gacaca has been modernised by the government, which is largely controlled by the Tutsis. Therefore, the victors of the conflict are creating the justice, and this may lead to bias and tension between Hutus and Tutsis who have to live in the same village. With victims and perpetrators having to live together, it is important that victor's justice does not take over the Gacaca courts and turn it into a form of retribution.
Whilst some argue that this has already occurred, it seems possible that Gacaca and Rwanda can still be salvaged by allowing further participation from the general population in the processes of reconciliation and transitional justice. With the community dedicated to the recreation of events and bringing about reconciliation, then victor's justice is less likely to take over. Examples where Gacaca has worked in villages has shown that whilst the process may be painful, it can help to put the past behind and bring about a new future.
However, until the RPF have faced justice for their alleged crimes along with the Hutus involved in the genocide, then Rwanda may well continue to be an example of victor's justice, with a potentially biased and inefficient legal system in place. So far, the Gacaca is a step towards reconciliation, but as of yet has not done enough. The retributive measures used before only pushed back the chances of reconciliation further, and it may be some time before this changes.
Approaches to transitional justice, truth and reconciliation in South Africa
The situation in South Africa is somewhat different from that of Rwanda, and the scale of crimes and genocide were not as difficult to deal with. The processes of reconciliation and transitional justice in South Africa took a different path, and have been far more successful.
The process of transitional justice in South Africa began in 1995 with the establishment of the Truth and Reconciliation Commission (TRC). The commission was established to look at the abuses that had occurred during apartheid and bring about justice in South Africa. Whilst the approach itself was not new, the strengths of the TRC lie in its commitment to learn from the mistakes of previous commissions in other countries.
The aim of the TRC was not to look for retributive justice, but rather to put the horrible events of apartheid behind them by focusing on truth-telling and reconciliation. One way this was done was through amnesty. Those who would confess their crimes to the commission could in turn receive amnesty rather than retributive justice, which allows for reconciliation to move forward.
There are a number of benefits to this idea of amnesty, not least that it avoids the problems of retribution seen in places such as Rwanda. It also helps to provide compensation to those who were victims of violence during the apartheid regime, which helps to make amnesty seem fairer. The reparations offered are nuanced and allow for various individual and communal reparations based on both moral and legal grounds.
Despite this process of reparations, the TRC has been criticised for not supporting those victims who testified before the commission. Many of these people suffered flashbacks and depression after testifying, and did not receive the support of compensation they were promised. However, this is less of an issue with the TRC and more of an issue with the South African government who did not provide the correct levels of support.
One strength of the commission was that it could not be obviously seen as a form of victor's justice. The ANC had negotiated victory rather than won outright, and so victor's justice was not possible. The commission was made up of all ethnic minorities involved in the conflict, including, blacks, Indians, and whites. This made the commission fairer than those in other countries where those in charge were the victors of a war and deciders of justice. Furthermore, the commission was not created to punish, but simply to get the truth of events out in the open and get those who committed crimes to confess so the process of healing could begin. The TRC allowed the conflict between the government and resistance movements to be quelled through truth rather than punishment.
Despite this, the strengths of the commission were also its potential weaknesses. Some thought that justice was not being done through simply finding out the truth, and wanted retribution for what had happened. The problem was that it was hard to forgive many of these crimes, and some form of justice might be needed to individualise those who committed crimes from the general white population who had supported apartheid.
There were also protests from the side of the Afrikaners, who believed the TRC would promote a 'witch hunt' and would help to show history in a biased light whereby those who were involved in the apartheid were demonised and any crimes by the ANC were seen as just actions. However, as the war against apartheid was internationally adjudged to be a fair and just war, this seems to be a problem of bitterness from those who lost out. However, if the Afrikaner side are unhappy and feel the commission is not giving truth, this could slow down reconciliation.
The TRC was a massive step towards reconciliation in South Africa by not only examining the atrocities of the past, but the reasons and contexts of how these atrocities occurred. The idea behind this was to transcend hatreds and to allow the country to move forward. It also avoided the problems of revenge and retribution that meant another tragedy would be unlikely to occur. It allowed both sides to heal by allowing these hatreds to subside. A story of one African man who lost his brother to a white raid changed from hating all whites to realising this position would go against what his brother had stood and fought for. It was not only a process to allow the atrocities and truth to be known, but allow both whites and blacks to come to terms with the events and reconcile their differences.
This has helped develop mutual trust between both sides, and move past apartheid to a situation where South Africa can be fairly stable both economically and politically.
The most important issue in South Africa is whether or not reconciliation has indeed been achieved by the creation of the TRC. At first glance, it is hard to work out whether or not the process has been completely successful. Whilst there are undoubtedly those who are extremely satisfied and feel reconciled by the process of truth and reparation that has occurred, others still feel bitter about the amnesty afforded to those who committed atrocities and want to see retributive justice served.
Many, including the family of Steve Biko, feel the commission allows for political protection for criminals who will not be brought to justice thanks to the amnesty. Whilst this is clearly true, the point of the commission is far bigger in scope. It goes beyond issues of justice and instead is a political solution on the national level to try and overcome the feelings and problems created by apartheid. With both sides of the conflict having now to work together to rebuild South Africa, retributive justice would not be the answer to the problems.
However, it is still difficult to measure the quantitative success of reconciliation in South Africa from the TRC. Whilst Tutu and others suggest that reconciliation is a long process and the TRC is just one component, some polls suggest that it has not been a successful component. One such poll of South Africans suggested that the TRC in fact hurt relationships between whites and blacks rather than improving them.
Indeed, the scepticism of the success of the TRC as a tool for reconciliation is fairly widespread. One study suggests that the hurt of apartheid is too hard to reconcile through amnesty, whilst another suggests that the expectations of justice amongst the South African people have not been satisfied by the commission.
Whilst not all are after retribution, many people do not believe they have received justice, either in terms of punishment for the perpetrators or for the reparations they have received. However, the fact that people can be involved in the process of truth-gathering and confession means that they feel less disapproving than they otherwise would. This means that whilst many people are still not fully happy that justice has been done, they are pleased with the involvement they have had in the process and that the truth has finally been told.
The truth is that the TRC has been seen in many conflicting ways across South Africa. There are some parts of the TRC that have been successful, and other parts less than successful, with people having differing opinions on each part.
The TRC has been fairly unsuccessful in terms of reintegrating perpetrators back into the community, with very few of those who confessed to crimes being given immunity and then reintroduced in the community. This has surely damaged trust between the white community and black leaders after amnesty was promised for full disclosure in the hopes that reintegration could occur.
However, the TRC has been successful in agreeing a consensus about what happened in apartheid, which is an important step in moving forward and beginning the process of forgiveness. South African society now better understands what happened during apartheid, and the mindset of those involved. This has certainly helped to ease some tensions and begin the long road towards reconciliation.
Whilst the TRC has not achieved full reconciliation, its approach of truth and reparation above retribution has helped to reduce tensions and allowed South Africa to move forward much more quickly than Rwanda from the terrible atrocities that have occurred.
