How can justice be found in the face of genocide, a crime so vast and evil that it defies simple justice? Is there restorative justice beyond retribution and revenge? Must some kind of justice be done before healing can take place?
The kinds of questions that informed the Nuremberg trials are still being asked in Rwanda today and bedeviling those who seek a durable peace. For women like Aloisea Inyumba--whose father was murdered in a genocide before she was born, whose two brothers were murdered in 1994, but whose mother reared her in exile to believe ethnic conflict was caused by bad leaders, not bad people-- reconciliation is the only way out. And that conviction about the need to come together has a bearing on how Rwanda defines and dispenses justice.
"My role is to see how we can create a new society, despite all we've gone through," said Inyumba, 36, the head of Rwanda's Unity and Reconciliation Commission. "We have to sit together and look into the future, look for new forms with which to create reconciliation. We are all poor, we all need justice," she said in a recent interview in New York, while visiting the United Nations. "And we need to talk about what happened." And talking--talking about evil, guilt, loss, anger and the need to live together--figure in a new form of justice taking shape in Rwanda.
Six years after the slaughter in 1994 of more than 800,000 Tutsis and moderate Hutus in 100 days in the tiny Central African country, 120,000 Hutus, including 1,200 women, remain in jail, accused of taking part in the genocide.
Overcrowded Prisons, Overwhelmed Courts: Where Is Justice?
Rwanda itself now has only 50 trained lawyers because lawyers, judges and other intellectuals, most of them Tutsi, were among the very first targets of Hutu nationalists in the genocide. Rwanda has set up an emergency system of special courts, but it has been overwhelmed. International human rights organizations condemn the treatment of the accused, the lack of formal charges, the abysmal conditions in which they are imprisoned.
On the international justice front, the U.N. Criminal Tribunal in Arusha, Tanzania, has only handed down seven convictions in five years. One of those, former Rwandan Prime Minister Jean Kambanda, was sentenced to life imprisonment for genocide--there is no death penalty in international tribunals--and his appeal is still in the courts. At this laborious rate of individual conviction, the search for justice in Rwanda could take hundreds of years.
How is justice to be found when the justice system is overwhelmed? People need some reckoning, some acknowledgment of the horror they lived through before they can move forward both individually and as a nation.
Simple, individual, retributive justice, an eye for an eye, would not advance the wounded society beyond the bloodletting of the genocide. Something different had to be invented, a different way of defining justice, a different way of dispensing it.
There is great potential in a plan that gets people to come together to talk about what they did, to express remorse, perhaps to do community service, said Paul Van Zyl of the Human Rights Center at Columbia Law School and a key aide to South African Archbishop Desmond Tutu, who first made a distinction between "retributive and restorative justice." The idea is that retributive justice is specific, limited and perhaps ultimately inadequate in the face of enormous national crimes; restorative justice can be ongoing and benefit both the accused and the accusers.
Rwanda, therefore, is gambling on restorative justice. The government plans to institute "gacaca," an informal tribal justice system in which wise elders deliberated together in order to resolve conflicts. An updated version of this grass roots justice is scheduled to begin in 11,000 communities perhaps as early as next fall.
"Gacaca" (pronounced GA-cha-cha) will not mean the death penalty. Gacaca justice might mean community service, tilling the fields of victims, collecting firewood and drawing water, donating produce or money, assigning one's sons or daughters to help another family.
Categories of Guilt: Masterminds, Mass Murderers, Killers, Quislings
The government has established four categories of guilt, and the legal system will deal with the worst, the masterminds of the genocide, who could be sentenced to death. The gacaca system will deal with the other three categories: those who killed on a scale of thousands, those who killed smaller numbers and destroyed property and those who divulged hiding places and collaborated with the killers. This means the accused will go home to face their victims and accusers. Retribution killings were not uncommon as some Hutu refugees returned home several years ago, and it remains to be seen whether time has had a healing effect and gacaca can be implemented fairly.
"There is nothing in our constitution that deals with genocide; we have had to create a new justice system," said Inyumba. "How do we insure that the victims benefit from justice, and also the accused? Not everybody who participated in genocide can be treated equally."
Skeptics consider the gacaca plan one of a number of sophisticated public relations efforts by a ruling Tutsi elite. Others say the plan reflects good intentions, but may never happen. The Rwandan government, digging out of desperate poverty in addition to genocide, cannot proceed with the gacaca system, or any other human rights work, without massive outside financial assistance. Will the international community, which stood by while hundreds of thousands were slaughtered, provide it? The United States alone has been asked for $32 million and has delivered $10 million, including $3 million to educate and persuade an illiterate and embittered population.
Women to Play a Major Role in Dispensing Grass Roots Justice
Still, gacaca may be the right and only direction. A woman has been appointed minister of justice and women will be prominent in the deliberations and dispensing of gacaca justice, said Inyumba. "The heart of the gacaca will be women," she added. Traditionally, women were excluded from the local justice system, a male preserve, but after the genocide women head many households and are playing an important role in reconstruction.
Women were not only the victims, but also the killers, Inyumba says. "There were women who killed their own children because the father was Tutsi, women who drowned their children in the river. Already women have come forward and said, 'I'm wrong, I killed my neighbor's kids.'"
Van Zyl of Columbia's Human Rights Center said that informal conflict resolution on a domestic level, like gacaca, could be important when criminal justice cannot be achieved for lack of institutions. "People do have to live in the country together," he said.
But given Rwanda's bloodletting, destruction and communal hatred, he expressed concern that the implementation might not be even-handed.
After So Much Bloodshed, Fears That Gacaca Could Be Used for Vendettas
"If the people who preside over the gacaca are not scrupulously fair and don't enjoy the trust and respect of all sectors, if the process is used to score political points or to marginalize one group or to settle scores, or used as a vendetta, then it will be counter-productive," Van Zyl added.
Inyumba also knows that making gacaca work won't be easy.
"For gacaca to succeed, we need to have public debates, discussions and workshops to create a basis for the victims and the accused to work together in the reconciliation process," she said. Over the past year, Inyumba has organized reconciliation workshops in more than 154 communities.
Rwanda will learn from South Africa's experience with its Truth and Reconciliation Commission, she said, although decades of human rights violations under apartheid are clearly not the same as the hundred days of frenzied killing in Central Africa.
"In Rwanda, crimes were committed in broad daylight," she said. "Everyone saw. We're opening up village councils and prisoners are going back to the villages. We have people--priests, nuns, administrators--who have already confessed. I want more people to confess. This can help the healing process."
Inyumba stages gacaca theater to show a mostly illiterate population how the tribunals would work.
"People stand up and say, 'I've killed, I'm sorry,'" said Inyumba. "Others say, 'I didn't know I would have people confessing to me.' At the end, I say, 'Now we have to go back to prepare food for our families,' or 'Now we have go take care of our children.' To let them know that we need to get back to normal life."
Jane Ciabattari is a contributing editor of Parade Magazine and a member of the Women's Enews advisory board.