THE COURTS OF GENOCIDE: POLITICS AND THE RULE OF LAW IN RWANDA AND ARUSHA

by Nicholas A. Jones. London: Routledge-Cavendish, 2010. 256pp. Hardback $130.00. ISBN: 9780415490702.

Reviewed by Judith Holmes, Legal Studies Program, Department of Political Science, University of Massachusetts Amherst. Email: jholmes [at] legal.umass.edu.

pp.366-369

The facts of the Rwandan genocide are fairly well settled: over a period of three months in 1994, during civil war, 800,000 – 1,000,000 Tutsis and politically moderate Hutus (about 10-15% of the Rwandan population) were hacked to death by a comparable number of civilian Hutus wielding machetes. In this book, Nicholas A. Jones sets out to investigate the judicial response to these atrocities in three legal venues: the community courts, known as Gacaca, the Rwandan national criminal courts, and the ad-hoc international criminal tribunal established by the United Nations (ICTR). Jones is a criminologist, and the questions he asks include: What unique aspects of the Rwandan genocide shaped the judicial response? What political and cultural factors influenced how the international and newly established Rwandan government approached prosecutions for these crimes? What are the goals of each of the three courts, and how well do the specific procedures of each court advance those goals?

Jones begins with a brief history of politics and ethnicity in Rwanda that helps establish the context for the civil war and targeting of Tutsi and moderate Hutus. He concludes that “the civil war may have been the catalyst for the genocide, but the ideological foundations for excluding the Tutsi from national political life have much deeper roots in the colonial re-fashioning of identities and the rigid juxtaposition of social differences in the Belgian-colonial Rwanda and in the post-Belgian government of democracy that superseded it” (p.26). Because of these pre-civil war factors, Jones argues that the post-civil war government understood it had to create new conditions that would permit Hutu and Tutsi to coexist; this led to the development of a policy of maximal accountability through judicial proceedings to end a long-standing culture of impunity.

Chapters three through six discuss each of the three courts in detail, including the institutional and informal relationships between the three courts and between the national government and each court. This is a particularly important part of Jones’ research, since much of the reporting and existing scholarship tends to focus on just one of the courts in isolation from the other prosecutorial efforts.

Jones starts with the Gacaca courts which represent a modernized version of a dispute resolution process developed in pre-colonial Rwanda that had fallen into disuse. The translation of the word “Gacaca” is “justice on the grass.” This is the richest chapter of Jones’ book. Relying on government documents and participant interviews which Jones [*377] conducted during his field work in 2005, he describes the national government’s process of establishing the Gacaca providing the context for these unique courts. Jones details the procedures used to hear and decide Gacaca cases and discusses how these courts deal with the thorny legal issues of confessions and plea agreements. It is expected that these local community proceedings will hear about 750,000 cases, an astounding number that will involve literally the entire population of Rwanda. The final decision of these proceedings must be accepted by the nine judges, the community witnesses and observers, and the defendant. The theme that runs throughout Jones’ discussion of the Gacaca proceedings is the objective of establishing individual culpability while serving both restorative and retributive justice in order to achieve the government’s twin goals of maximal accountability and reconciliation.

In the final section of this chapter, Jones moves beyond the narrative of how the Gacaca was established and how it works in practice and attempts to engage with relevant theory. Jones is a criminologist and looks to John Braithwaite’s provocative work on restorative justice and the “regulatory pyramid” in analyzing the Gacaca. Braithwaite argues that emphasizing restorative processes and restorative values over legalistic processes will result in social justice. Jones tries to situate the Gacaca within Braithwaite’s theory but lacks the data to do more than speculate. His primary research, consisting of participant interviews, was done in 2005, before the Gacaca courts had begun in earnest to hear and decide cases. He has no information about the results or effects of completed Gacaca proceedings on Rwandan society or on the goal of reconciliation. Jones’ analysis of the Gacaca using Rule of Law theory also falls short. He has no data about the ethnic identity of Gacaca judges, participants and defendants, nor is it likely that such data will ever be available since the Rwandan government has removed ethnic labeling from identity cards and official records.

The next chapter addresses the problem facing the Rwandan domestic courts in the aftermath of genocide and describes the process of finding and implementing solutions. His data consist of participant interviews, government documents, and NGO reports. The problems these courts faced were enormous. According to Jones’ sources, 75% of the Rwanda judicial personnel, including judges, prosecutors, and support personnel, who were mostly Tutsi, perished in the genocide. With 124,000 accused g√©nocidaires in jail, there was no way the depleted judiciary could try all these cases. Even if judicial resources were available, there was no crime of genocide in the Rwandan criminal code. Jones describes the process of reforming the judiciary to meet these pressing challenges and the relationship of the national courts to Gacaca and the ICTR.

Jones’ theoretical discussion at the end of this chapter again falls short since he has no data with which to test the theories. He argues that, despite efforts to place the genocide prosecutions within a framework Gary Bass calls “liberal-legalism,” “there remains a distrustful and negative perception of the overall judicial process.” He presents no data to support this claim, which may very well be true. Jones criticizes the lack of prosecutions against RPF soldiers as “victor’s justice,” but he never addresses why Rwanda would be any different from other countries’ genocide prosecutions when Bass, who provides Jones’s theoretical basis, acknowledges the apparent contradiction that liberal-legalis[*368] tic regimes do not prosecute their own.

The last in the triumvirate of genocide courts is the ad hoc International Criminal Tribunal for Rwanda (ICTR) created by the United Nations Security Council in 1994 as a sister-court to the International Court for the Former Yugoslavia (ICTY). The ICTR sits in Arusha, Tanzania, about 450 miles from Kigali, the Rwandan capital. Jones’ sources, as in previous chapters, are primarily official documents and participant interviews. Of the three courts, the ICTR has been studied and written about the most. Jones does not break any new ground here, even with the participant interviews. The criticisms he discusses are well known, particularly the ICTR’s low number of verdicts and disproportionately high budget in comparison to the verdicts and budgets in Rwandan national and Gacaca courts. According to Jones, the ICTR’s principal contribution is its development of international jurisprudence. Again, this analysis is not new. It is well known that the ICTR won the first conviction ever for the crime of genocide and developed important precedent for rape as a crime of genocide.

The last topic Jones address are three thorny legal issues – hearsay evidence, plea bargaining, and use of confessions – in a side-by-side explanation of how each court addresses these issues. Jones touches on contradictions arising from the use of common law, civil law, and traditional legal doctrine in each court’s handling of these evidentiary issues. It is very helpful to have this cross-court discussion of a single issue to better understand the interplay between the three courts. Jones argues that how each court resolves these legal conflicts impacts the “search for justice” and how the verdicts are understood by Rwandans. The comments are observations, though, since there is no data to test Jones’ premises.

Jones is among a growing number of scholars drawn to the study of the many war crimes tribunals and truth commissions established in the past twenty years. The earliest work was produced by representatives of NGOs who observed and chronicled the initial development of courts and commissions and volunteer practitioners who assisted in the establishment and initial processing of cases and hearings. Virtually all of this early work is available on-line; later, many of the newly established institutions posted official documents and transcripts of proceedings on their websites making these processes accessible to a worldwide community of human rights scholars.

Jones’ work is a narrative description of the establishment and structure of the three different courts established to address the Rwandan genocide. Much of what he discusses is well known, although there are several factual errors as another reviewed noted (Caplan). His contribution is to synthesize the earlier work and to look at all three courts together and the interplay between them. The new sources he draws on are [*369] interviews with government officials and participants in these courts; however, his methodology in conducting these interviews is neither apparent nor ever explained. Indeed, there is not even a comprehensive list of interviewees in an appendix. While Jones often uses these interviews as oral history, he never places the source in context or attempts to corroborate the information. He simply states his source’s opinion as fact. If done well, interviews can be a rich source of information, as demonstrated by law and society scholars Patricia Ewick and Susan Silbey, among many others across several disciplines, but the methodology has to be much more rigorous than Jones’ to yield meaningful data that can be used to build and test theoretical principles. As part of a second-wave of scholars writing about these issues, we ought to be seeing richer, interdisciplinary analyses that draw on methodologies and theory from many fields including Sociology, Law, Anthropology, and Political Science.

REFERENCES:
Bass, Gary (2000). STAY THE HAND OF VENGEANCE: THE POLITICS OF WAR CRIMES TRIBUNALS. Princeton, NJ: Princeton University Press.

Braithwaite, John (2002). RESTORATIVE JUSTICE AND RESPONSIVE REGULATION. New York: Oxford University Press.

Caplan, Gerald (2010). The Courts of Genocide: Politics and the Rule of Law in Rwanda and Arusha (review). GENOCIDE STUDIES AND PREVENTION, 5 (1), 124-128.

Ewick, Patricia and Susan Silbey (1998). THE COMMON PLACE OF LAW: STORIES FROM EVERYDAY LIFE. Chicago and London: University of Chicago Press.

© Copyright 2010 by the author, Judith Holmes.