Transitional Justice in Rwanda: Accountability for Atrocity

433 Pages·2012·2.517 MB·English

by  Gerald Gahima

TRANSITIONAL
JUSTICE IN RWANDA
ACCOUNTABILITY FOR ATROCITY
GERALD GAHIMA
Transitional Justice in Rwanda
Transitional Justice in Rwanda: Accountability for Atrocity comprehensively
analyzes the full range of the transitional justice processes undertaken for the
Rwandan genocide. Drawing on the author’s extensive professional experi-
ence as the principal justice policy maker and the leading law enforcement
offi cer in Rwanda from 1996–2003, the book provides an in-depth analysis
of the social, political and legal challenges faced by Rwanda in the aftermath
of the genocide and the aspirations and legacy of transitional justice. The
book explores the role played by the accountability processes not just in
pursuing accountability but also in shaping the reconstruction of Rwanda’s
institutions of democratic governance and political reconciliation. Central to
this exploration will be the examination of whether or not transitional justice
in Rwanda has contributed to a foundational rule of law reform process.
While recognizing the necessity of pursuing accountability for mass atroc-
ity, the book argues that a maximal approach to accountability for genocide
may undermine the promotion of core objectives of transitional justice.
Taking on one of the key questions facing practitioners and scholars of tran-
sitional justice today, the book suggests that the pursuit of mass accountabil-
ity, particularly where socio-economic resources and legal capacity is limited,
may destabilize the process of rule of law reform, endangering core human
rights norms. Moreover, the book suggests that pursuing a strategy of mass
accountability may undermine the process of democratic transition, particu-
larly in a context where impunity for crimes committed by the victors of
armed confl icts persists. Highlighting the ongoing democratic defi cit in
Rwanda and resulting political instability in the Great Lakes region, the
book argues that the effectiveness of transitional justice ultimately hinges on
the nature and success of political transition.
Gerald Gahima was central to the rebuilding of Rwanda’s justice system in
the aftermath of the 1994 genocide, fi rst as Deputy Minister of the Ministry
of Justice from 1996–1999, and subsequently as the country’s Attorney
General from 1999–2003. He now works as an independent consultant to
various organizations, including UN bodies, on issues relating to the rule of
law and reconstruction of post-confl ict countries.

Transitional Justice
in Rwanda
Accountability for atrocity
Gerald Gahima
First published 2013
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
Simultaneously published in the USA and Canada
by Routledge
711 Third Avenue, New York, NY 10 017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2013 Gerald Gahima
The right of Gerald Gahima to be identifi ed as author of this work has been asserted
by him in accordance with sections 77 and 78 of the Copyright, Designs and
Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
writing from the publishers.
Trademark notice : Product or corporate names may be trademarks or registered
trademarks, and are used only for identifi cation and explanation without intent to
infringe.
British Library Cataloguing in Publication Data
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Library of Congress Cataloguing in Publication Data
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ISBN 978-0-415-52278-6 (hbk)
ISBN 978-0-415-52279-3 (pbk)
ISBN 978-0-203-07515-9 (ebk)
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Contents
Abbreviations vii
Table of Legislation ix
Table of Cases xvii
Table of International Instruments xxvii
Acknowledgements xxxiii
Introduction xxxvii
1 Theoretical Framework of Transitional Justice 1
2 A Decade of Atrocities 32
3 Accountability for Mass Atrocity: Challenges, Choices
and Goals of Transitional Justice in Post-Genocide Rwanda 53
4 Accountability, Justice and the Role of the International
Criminal Tribunal for Rwanda 79
5 National Prosecutions 128
6 Seeking Alternative Accountability Mechanisms:
The Gacaca Courts 158
7 Trials Based on the Principle of Universal Jurisdiction 187
8 Untold Story, Unfi nished Business: Confronting the
Crimes of the Victors 223
9 Assessing the Impact and Legacy of Rwanda’s Mechanisms
of Accountability for Atrocity 242
vi Contents
10 Tentative Lessons from Rwanda’s Mechanisms of
Accountability for Atrocity 280
11 Conclusion 303
Notes 307
Bibliography 331
Index 369
Abbreviations

AfrCmHPR Africa Commission on Human and Peoples’ Rights
AI Amnesty International
CERD United Nations Committee on the Elimination of Racial
Discrimination
DRC Democratic Republic of Congo
ECHR European Court of Human Rights
FAR Forces Armées Rwandaises
FARG Fonds National pour l’Assistance aux Rescapés du
Génocide
HRC Human Rights Committee
HRW Human Rights Watch
I/ACtHR Inter-American Court on Human Rights
ICC International Criminal Court
ICJ International Court of Justice
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia
ILC International Law Commission
MDR Mouvement Démocratique Républicain
MRND Mouvement Révolutionnaire National pour le
Développement
NRM National Resistance Movement
OAU Organisation of African Unity
RANU Rwandese Alliance for National Union
RPA Rwandese Patriotic Army
RPF Rwandese Patriotic Front
UNAMIR United Nations Assistance Mission in Rwanda
UNCHR United Nations Commission on Human Rights
UNHCHR United Nations High Commissioner for Human Rights
UNOHCHR United Nations Offi ce of the High Commissioner for
Human Rights

Table of Legislation
Belgium
Penal Code, Kingdom of Belgium, 8 June 1867, as amended. . . . . . . . .196
Law of 17 April 1878 Containing the First Title of the
Criminal Procedure Code, as amended . . . . . . . . . . . . . . . . . . . . . . . .196
Law of 16 June 1993 relating to the repression of grave
violations of International Conventions of Geneva of
12 August 1949 and Additional Protocols I and II of
8 June 1977 to these Conventions, as amended by
Law of 10 February 1999 relating to the repression of
grave breaches of international humanitarian law . . . . . . . .195, 196, 321
Law of 5 August 2003 relating to grave breaches
of International Humanitarian Law . . . . . . . . . . . . . . . . . . . . . .196, 322
Bosnia and Herzegovia
Law on the Court of Bosnia and Herzegovina,
Offi cial Gazette of Bosnia and Herzegovina,
Nos. 29/00, 15/02, 16/02, 24/02, 3/03,
37/03, 61/04 and 32/07 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .318
Canada
Crimes Against Humanity and War Crimes Act 2000 . . . . . . . . . .213, 214
Denmark
Law No. 132 of April 29, 1955 relating to the
Punishment of Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .204, 322
France
Code of Criminal Procedure 1958, as amended . . . . . . . . . . . . . . . . . . .200
Law No. 92-2 of 4 January 1993 establishing amendment
of Code of Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . .200, 322
Act No. 95-1 of 2 January 1995: United Nations Security
Council resolution 827 of 25 May 1993 establishing an
international tribunal for the purpose of prosecuting persons