Trying International Crimes on Local Lawns: The Adjudication of Genocide Sexual Violence Crimes in Rwanda's Gacaca Courts

Amick, Emily, Columbia Journal of Gender and Law

INTRODUCTION

During the Rwandan genocide sexual violence was used as a weapon of war to ravage a people. Women were tortured psychologically, physically and emotionally. For some women the "dark carnival" of the genocide has not ended. (1) Living side by side with the men who committed violence against them, they must confront their past every day. This Article explores how, post-genocide, the country has come to adjudicate these crimes in gacaca.

Gacaca is a unique method of transitional justice, one that calls upon traditional roots, bringing community members together to find the truth of what happened during the genocide and punish those who perpetrated violence. One scholar calls gacaca, "one of the boldest and most original 'legal-social' experiments ever attempted in the field of transitional justice." (2) Others, however, criticize gacaca for the impunity it grants to crimes committed by the current ruling party, the Rwandan Patriotic Front (RPF), (3) and its lack of due process and nonconformance to international fair trial processes. (4) Most authors find that, for cases of sexual violence, gacaca is a wholly unsuitable forum.

When gacaca began in 2001, sexual violence (5) was not within its jurisdiction. Crimes of sexual violence were classified in category one (the highest category of crimes) along with the crimes of planning and supervising the genocide, and were under the jurisdiction of the national courts. Eventually, sexual violence cases were heard in the gacaca courts after a 2008 amendment to the gacaca law.

After the 2008 amendment, 6608 cases of rape or sexual torture were transferred from the national courts to the gacaca jurisdiction to be completed as the gacaca justice system was brought to a close. (6) The Minister of Gender and Women's Development in Rwanda estimated that 250,000 women were raped during the genocide. (7) Human Rights Watch suggests the number is much higher. (8) The question arises: what of the other 243,392 victims? How were their cases adjudicated?

The history of the classification of sexual violence as a category one crime is, in one way, a triumph of the woman's rights movement in Rwanda. Sexual violence was meant to be considered the most serious of crimes. However, this triumph resulted in sexual violence cases being moved to the side as the national courts practiced triage on their judicial system. The short time frame allocated for the adjudication of sexual violence trials in gacaca allowed for perpetrators to escape trial in national courts and sent inconsistent messages to the victims. This Article reveals that many of those who committed crimes of sexual violence received de facto amnesty.

Academics have argued that it would be inappropriate to adjudicate sexual violence in gacaca, a public court. The shame and fear women associated with the sexual nature of the crimes committed against them meant that the adjudication process would be a re-victimization. It is easy to conclude that the low number of sexual violence cases adjudicated in Rwanda reflects this social and cultural context. However, this Article will show that personal, cultural and societal forces were not the only drivers of the low caseload. Rather, the structure and process of the judicial mechanism prohibited women's access to justice.

This Article argues that the classification of rape and sexual torture as a category one crime within the jurisdiction of the national courts impeded access to justice for victims. In Part I, I will discuss the history of sexual violence during the genocide, the history of women in Rwanda, the history and mechanics of the gacaca justice system and the criminalization of sexual violence in international law. In Part II, I will examine what determined women's participation in gacaca and the problems women faced in participating in gacaca. I argue that while past scholars have found that the participation of victims of sexual violence was constrained by social mores, women do want to access justice and were inhibited because of legal and procedural features of gacaca. In Part III, I will identify the long-term impact of the manner in which sexual violence crimes from the genocide were adjudicated. By leaving sexual violence out of the gacaca process for the majority of time, women's voices were left out of the community narrative building process and there is a risk that those types of crimes will never be deemed 'wrong.' Lastly, I will conclude with the lessons that can be taken from Rwanda's endeavor to provide justice to victims of sexual violence. I argue that crimes of sexual violence should have initially been included within the jurisdiction of gacaca courts and that improved reporting procedures and training would have engendered greater participation.

Transitional justice is not a singular act; there are many tools to rebuild a country, and no single method can "adequately address and repair the injuries of the past nor chart a fully just future." (9) Recognizing that, this Article is an evaluation of the national adjudication of sexual violence crimes from the Rwandan genocide; a discussion of the reparations offered to victims is outside of its scope.

I. Background

A. Sexual violence during the 1994 Genocide of the Tutsis

1. The nature of sexual violence during the Genocide

In the spring of 1994, 500,000 to 800,000 Rwandans (10) were murdered at the hands of the genocidaires. (11) Over only a few months, men, women and children were killed by their neighbors, friends, strangers and leaders. (12) The violence was perpetrated in a way that not only destroyed human lives, but also institutions, infrastructure, communities, families and social bonds. (13)

Exact figures on the number of cases of sexual violence during the genocide are unknown. (14) Some estimate that between 250,000 to 500,000 women were raped. (15) Others argue that nearly every female adult and adolescent who survived the genocide experienced some type of sexual violence; (16) and if not, they were profoundly affected by it. (17) According to one scholar, "rape constitutes the central experience of the genocide period for most female survivors." (18) Hutu women were also victims of sexual violence because of associations with Tutsis--through marriage or protection--or affiliation with the political opposition. (19)

The crimes of sexual violence were extensive, including rape, gang rape, forced slavery, forced incest, intentional HIV infection and sexual torture. (20) Sexual mutilation included the pouring of boiling water into the vagina, the opening of the womb to cut out the unborn child before killing the mother, cutting off breasts, slashing the pelvis area, removal of genital organs, introduction of harmful objects into the vagina and mutilation of the vagina. (21) Women and girls were pierced with spears, in some cases from their vagina to their mouth. (22)

The women were often raped after witnessing the torture and killing of their families, and the destruction and looting of their homes. (23) Many murder victims were raped before they were killed. (24) In some cases, women were forced to kill their own children, (25) or, in extreme cases, rape their own children. (26) Some women, before being killed, were forced to commit incest with a family member, or had their breasts cut off. (27) According to survivors, even the corpses of some women were raped. After murdering a woman, the militia would sometimes leave her naked with her legs spread apart to dehumanize her. (28)

During the genocide, houses were set aside specifically for the purpose of keeping women to rape. (29) Women were pulled aside at checkpoints or roadblocks, and government soldiers would block village exits to prevent people from escaping, allowing the interhamwe time to find all of the Tutsi and rape and murder them. (30)

In a January 1996 report, the United Nations Special Rapporteur on Rwanda, Rene Degni-Segui, found that:

   Rape was the rule and its absence the
   exception ... According to the statistics, one
   hundred cases of rape give rise to one
   pregnancy. If this principle is applied to the
   lowest figure [the numbers of pregnancies
   caused by rape are estimated to be between
   2,000-5,000], it gives at least 250,000 cases of
   rape and the highest figure would give
   500,000, although this figure also seems
   excessive. However, the important aspect is
   not so much the number as the principle and
   the types of rape. (31)

The National Population Office estimated that the number of pregnancies resulting from the war (also known as "enfants nondesires" (unwanted children) or "enfants mauvais souvenir" (children of bad memories) to be between 2000 to 5000. (32) In some cases, these pregnancies resulted in infanticide and self-induced abortions. In other cases, mothers who decided to keep the children have been rejected by their families. (33)

Women who survived the genocide faced innumerable physical, emotional and psychological problems, in addition to a difficult economic situation. Without male relatives to rely on for economic support, some genocide survivors found themselves destitute. (34)

Senator Aloysea Inyumba, former Minister of Family, Gender, and Social Affairs noted that, "what was particular to the Rwandan experience was that the atrocities took place in the most intimate settings--between colleagues, teachers and students, neighbours and, most destructively, within families...." (35) While the rapes were intimate, they were often in public settings. Rapes occured at victims' or perpetrators' houses, however, "more often it [the rape] was committed in plain view of others, at sites such as schools, churches, roadblocks and government buildings." (36) The public nature of the crime was further emphasized "frequently" when a woman's corpse was left "spread-eagle" in public view--as a reminder for all who passed of the genocidaires domination and the women's degradation. (37)

2. Propaganda Vilified Tutsi Women and Was Used to Incite Genocide and Sexual Violence

Propaganda was used to incite genocidal tendencies amongst the people of Rwanda; the government taught its people to use sexual violence as a weapon of war. (38) The propaganda incited sexual violence to accomplish the dual task of dehumanizing and subjugating all Tutsi women (39) and as a means to dominate and undermine Tutsi men. (40) Through this dehumanization and sexualization of Tutsi women, a climate was created in which "the mass rape of Tutsi women appeared to be an appropriate form of retribution for their purported arrogance, immorality, hyper-sexuality, and espionage." (41)

The propaganda distorted Rwanda's history to paint Tutsi women as foreign conquerors who subjugated the majority Hutu through sexual trickery and heartlessness and who were, moreover, bent on resuming control over the Hutu after the 1959 revolution. (42) The Kinyarwanda word for a Tutsi woman was Ibizungerezi, which means beautiful and sexy. (43) The fact that Tutsi women were considered more beautiful than Hutu women was used to breed hate against them. (44) Cartoons showed Tutsi women seducing UN peacekeepers and moderate politicians in sexual poses. (45)

The focus was often on the role of the Tutsi woman as that of the evil seducer, who looked down on the ugly and inferior Hutu men, thus the propaganda warned Hutu men (and their families) to stay away from the arrogant Tutsi women. One Tutsi woman said, "For example, it is said if she gives you a good child, the child is not really for you--the child is really for her Tutsi brothers. These women are very sexual, and they sleep with their Tutsi brothers. You will be deceived by them." (46) The propaganda sought to characterize Tutsi women as trying to control the Hutu men (and therefore the whole community) through their sexuality. (47)

Four of the infamous The Ten Commandments of the Hutu, published in the December 1990 issue of Kangura, by Hassan Ngeze discussed women:

   Every Muhutu should know that a Mututsi
   woman, wherever she is, works for the interest
   of her Tutsi ethnic group. As a result, we shall
   consider a traitor any Muhutu who: marries a
   Tutsi woman; befriends a Tutsi woman;
   employs a Tutsi woman as a secretary or a
   concubine.

   Every Muhutu should know that our Hutu
   daughters are more suitable and conscientious
   in their role as woman, wife and mother of the
   family. Are they not beautiful, good secretaries
   and more honest?

   Bahutu woman, be vigilant and try to bring
   your husbands, brothers and sons back to
   reason.

   The Rwandese Armed Forces should be
   exclusively Hutu. The experience of the
   October [1990] war has taught us a lesson. No
   member of the military shall marry a Tutsi. (48)

Rape was intended to subjugate the Tutsi women who were seen as controlling the Hutu men. (49) Tutsi women were portrayed as beautiful and desirable women who saw themselves as "too good" for Hutu men. (50) One rapist stated, "You Tutsi women think that you are too good for us;" another said, "You Tutsi girls are too proud." (51) Tutsi women who were married to Hutu men were not spared from a fate of rape and murder, despite the local custom that a woman took on her husband's lineage after marriage. (52)

3. Sexual Violence Was Used as a Weapon of War During the Rwandan Genocide

The Special Rapporteur for Rwanda concluded in a 1996 report that "rape was systematic and was used as a 'weapon' by the perpetrators of the massacres ... rape was the rule and its absence was the exception." (53) According to Human Rights Watch, "[a]dministrative, military and political leaders at the national and local levels, as well as heads of militia, directed or encouraged both the killings and sexual violence to further their political goal: the destruction of the Tutsi as a group." (54) Sexual violence was encouraged by military and political leaders at all levels of government to achieve the goal of destruction of the Tutsis as a group. (55) One survivor said, "While they were raping me, they were saying that they wanted to kill all Tutsi so that in the future all that would be left would be drawings to show that there were once a people called the Tutsi." (56) It is estimated that nearly seventy percent of rape victims were infected with HIV--a deliberate strategy of the genocidaires. (57) Some survivors say their attackers told them it was so that they would "die of sadness." (58)

Rape was used as a weapon to terrorize and degrade the Tutsi ethnic group in order to achieve a political end. The humiliation, pain and terror were not just meant for the victim but also to strip humanity from the perceived politically powerful group of which she was part. (59) Rape was intended to cause not only private pain, but public pain as well. It was intended to degrade the community as a whole. Maggie Zraly wrote, "[wjhile rape is a violation of the social body as well as a violation of the self, massive rape provokes maximum terror by damaging and destroying multiple targets: social bonds, cultural practices, bodies, and psyches." (60)

Mass rape is a systematic policy and an act of genocide. (61) It is sexualized violence that seeks to humiliate, terrorize and destroy a woman based on her group identity. (62) Rape is also social degradation; it is intended to humiliate the family of the victim by tapping into a cultural protection of women's "sexual virtue." (63) The strategy was successful in ensuring the genocide lasted longer than the hundred days.

B. Women's Status in Rwandan Society

1. Before the Genocide

Historically, Rwandan women were discriminated against culturally, socially and economically. Women were traditionally viewed as dependents of their male relatives--fathers, husbands and children. A Kigali legal aid organization describes this traditional upbringing as a history of oppression:

   From a young age, the education that girls
   receive from their mothers initiates them into
   their future lives as wives and mothers. A
   woman will take care of the house as well as
   working in the fields. She will learn certain
   kinds of behavior, such as keeping a reserved
   attitude, or submission.... The strength of a
   family is measured in the number of its boys.

   Women's ability to seek opportunities beyond
   the home have been greatly limited by the
   idealized image of women as child-bearers.
   Women are most valued for the number of
   children they can produce, and prior to the
   genocide, the average number of children per
   woman (6.2) was one of the highest rates in
   the world. (64)

Women's traditional status was compounded by a lack of legal rights and access to education, as well as high levels of poverty. Before the genocide, Rwanda was classified as one of the twenty-five poorest nations in the world, with the vast majority of its residents living on subsistence agriculture. According to Binaifer Norwojee, sixty-five to seventy percent of agricultural work was done by women. (65) Prior to the genocide, women's representation in the halls of schools and governments was minimal. Levels of illiteracy among women were extremely high; women constituted only about ten percent of secondary school pupils, and in universities, women were outnumbered by men fifteen to one. (66) Women's participation in voting was often governed by their husbands' views; and very few women served in the government. (67)

The Rwandan legal system codified much of this systemic subordination by denying women ownership rights. Although the 1991 Rwandan Constitution guaranteed equality for women, (68) the Family Code of 1992 officially designated husbands as heads of households. (69) To obtain credit, open a bank account or enter any legal agreement, women needed their husband's authorization. According to the Commercial Code, a woman needed her husband's express authorization to participate in commercial activity or be employed. (70) The feminization of poverty and "structure of enforced vulnerability" (71) in Rwanda was driven by the lack of education, high rates of illiteracy, and limited access to the public sphere and formal employment. (72)

In the early 1990s, a few women's organizations and the Ministry of the Family and Promotion of Women were established. (73) Despite these advances, there was strong resistance to changes in women's status, and those organizations advocating for women's rights and the people who worked for them were threatened. (74)

2. After the Genocide

In post-genocide Rwanda, women made up seventy percent of the population. (75) Due to their majority position within Rwandan society post-genocide, women "took on new roles as community leaders and heads of household." (76) Women joined AVEGA, the Rwandan organization for genocide widows, and "[d]espite the risk of social exclusion from the stigma of rape in Rwandan society," victims also joined smaller groups, publicly known as organizations for sexual violence survivors. (77)

The lasting effects of the sexual violence have been exacerbated by the extreme poverty many of the victims lived in post-genocide. (78) Survivors were, in some cases, in the same or worse position than before the genocide. Moreover, female survivors were five times more likely to be living without a spouse than male survivors, (79) and more likely to have "significantly fewer material resources than their male counterparts." (80) Some women had little education, (81) no employment, (82) lived in poverty, (83) and were denied access to their husband's or father's property. (84) Scholar Sarah Wells commented, "[tjhis vulnerability may impact their participation in gacaca because women that are in need of such support are, at least in part, more susceptible to community pressures not to disclose shameful violations and publicly identify themselves as sexual assault victims." (85)

AVEGA reported that gender inequalities hindered women's participation in gacaca: "In pure Rwandese tradition the woman lives as the man's shadow. She is expected to be reserved and discrete. She doesn't have the right to give her opinion on questions concerning family life [and she] does not like to talk about anything concerning her modesty." (86) However, in the late 90s women in Rwanda began to take on new roles in the public and private spheres.

Internationally, the ICTR's decision in Akayesu (87) and Security Council Resolution 1325 (88) emphasized the importance of judicially addressing crimes of sexual violence. Nationally, the government's institution of women's councils guaranteed women's representation in government, (89) as did the creation of the Ministry for Gender and Women in Development and gender posts in government bodies and ministerial positions. (90) Moreover, laws were amended to empower and protect women; changes were made in laws regarding land rights, marriage, child rape and violence against women. (91) Maggie Zraly wrote that increased gender sensitivity in policy making at the national and international levels promoted women's participation in "social reconstruction" and offered opportunities for women to enter politics. (92)

Women in post-genocide Rwanda changed their roles and challenged traditional stereotypes. While structural vulnerability may have impacted women's participation in gacaca, their status was not static during this period.

C. The Gacaca courts

1. History

While there is little information on gacaca before 1919, when the Belgian colonial era began, historians report that during that era gacaca was not a permanent judicial institution, but rather "was based on unwritten law and functioned as a body assembled whenever conflict arose within or between families, particularly in rural Rwanda." (93) Gacaca literally means "the lawn" or "grass" and refers to the meeting of neighbors in front of a house. (94) Historically, gacaca was overseen by men, (95) and women's participation was limited. (96)

Traditionally, according to African scholar Abbe Smaragde Mbonyintege, gacaca aimed to "sanction the violation of rules that [were] shared by the community, with the sole objective of reconciliation." (97) Scholar Phil Clark argues that this analysis is drawn from the "traditional Rwandan worldview" (98) that the family and community units are the most important. The goal of sentencing was not purely punitive; (99) rather the goal was to "reestablish social cohesion." (100) Gacaca dealt with cases involving "livestock, damage to property, marriage, or inheritance." (101) The system was not monolithic; it varied in its ideological underpinnings and was influenced by the evolving norms of the community in which it was imbedded. Some evidence shows that gacaca was also used to adjudicate minor offenses such as theft. (102) As the Belgians began to institute their system of Tutsi administrators, (103) those administrators began to appoint the elders in charge of hearings. Gacaca was fundamentally altered from a community outgrowth to a judicial system led by political appointees. (104)

Gacaca was officially recognized as a legitimate judicial mechanism by the Belgian administration in 1943. (105) Citizens were allowed to choose where they had their cases heard. (106) Post-independence, gacaca took an even greater administrative role. When defendants sought to appeal a gacaca's decision, higher officials such as mayors, sector prefects or judges in the official courts would judge the cases. Administrators began to call parties to gacaca without a request from a community member. (107) Gacaca shifted from the family-based effort to reconstruct social harmony to a judicial forum in which elected judges could collect evidence and proclaim judgments. (108)

In 1994, Rwandan law was not prepared to facilitate the prosecution of crimes of genocide. The Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948, was ratified by Rwanda in 1975; (109) however, it was not implemented in domestic law and there was no national law prohibiting genocide or crimes against humanity in 1994. (110) Post-genocide, some commentators report an increase in gacaca in rural areas, possibly a reaction to the collapse of the national court system. (111) The need to find a solution to the problem facing the nation was strong; the jails were overflowing, (112) while reparation and rehabilitation programs were nearly non-existent. (113) In the jails, the inmates lived in "hellish conditions," without sufficient food and water, and lacked space to sleep. (114) The Rwandan legal system did not have the institutional capacity to support trials; most members of the legal profession--judges and lawyers--had been killed or had fled the country, and the judicial infrastructure was decimated. (115)

Many scholars find that post-genocide Rwanda faced an unparalleled task. (116) The nearly complete destruction of the judicial infrastructure (117) combined with the high level of civilian participation in crimes of the highest degree left some scholars to see gacaca as a "last hope for justice and reconciliation." (118) A Swedish radio journalist commented:

   I think I understood something of the
   magnitude of that problem when I talked to
   Kibuye Chief Prosecutor Rafael Ngarumbe,
   who led the pre-gacaca proceedings in
   Bisesero. He has got 250,000 murders and
   7000 suspects to investigate. His staff consists
   of 12 persons and they have got one vehicle,
   unfortunately without petrol. (119)

The practical need was to develop a system that would allow for reconciliation in a country where perpetrators and victims lived side by side. (120) The idea of looking for inspiration in a traditional participatory justice mechanism was first discussed (and rejected) in a colloquium on "The Struggle Against Impunity: A Dialogue for National Reconciliation" in Kigali from October 31 to November 3, 1995. (121)

A Truth and Reconciliation Commission (TRC) based on the type employed in South Africa was rejected because it allowed impunity. (122) Leaders wanted to stop what they considered the cycle of violence driven by the "culture of impunity." (123) In particular, the impunity for the events leading up to 1994 was seen as a factor leading to the genocide, (124) as very few people were punished for the 1959 massacres. (125) The 1995 Conference attendees were also concerned that amnesties would anger genocide survivors, and believed that a blanket amnesty might incite vengeance. (126) They did not believe that a TRC would allow the two groups (guilty and non-guilty) to establish a future together; punishment was a necessary component. (127) Though the conference attendees decided not to implement a TRC, the influence of that post-conflict justice mechanism can be seen in modern gacaca with its emphasis on revealing the truth and reconciliation. (128)

In 1996, the government passed the first law to adjudicate crimes from the genocide. The law created a specialized chamber within the national and military courts to hear genocide cases. (129) It also established a four-tier system for the classification of crimes committed during the genocide (130) and a confession procedure so that perpetrators could receive reduced sentences. (131)

The first genocide trial occurred in December 1996. (132) Then, in a series of meetings at Urugwiro Village held from May 1998 to May 1999, the President of the Republic, Pasteur Bizimungu, and main administrative and political authorities decided to institute a judicial system drawn from Rwanda's customary gacaca system, but adapted to the specific needs of the situation facing the country at the time. (133) Protais Musoni, then Prefect of Kibungo, said that during the discussion on how to restructure gacaca the lawyers kept saying: "How can we let the people judge their own cases so soon after the genocide?" (134) He said that the prefects believed that gacaca "should emphasize truth and reconciliation. Gacaca should be more than judgments." (135) A February 1999 report from the U.N. Special Rapporteur stated, "gacaca is not competent to hear crimes against humanity, but it could be utilized for purposes of testifying in connection with reconciliation." (136)

At the same time, two unofficial forms of gacaca developed. (137) Between 1998 and 2001, "prison gacaca" developed, in which the detainees would separate themselves into groups and elected judges (known as urumuri, Kinyarwanda for "the light"). The urumuri would record confessions and evidence provided by other prisoners to be used at official gacaca proceedings outside the prison. "Christian gacaca" developed in the rural catholic communities. Based on the Christian process of confession, parishioners were encouraged to confess their sins to the congregation. The judges, instead of being local community members, were priests or church officials. After confession, the parishioners had to ask for forgiveness from the victims and the community. Phil Clark wrote, "The assumption underlying this duty to forgive is that because God has forgiven his children of the sins they have confessed to him, believers are therefore obliged to forgive those who have transgressed them in daily life." (138)

Phil Clark wrote that the "only resemblance" between historical and present-day gacaca is that they both involve "local and non-professional judges." (139) Modern gacaca is based on a complex written law, with systematic and organized administrative divisions, women are included as judges and members of the general assembly, prison sentences can be imposed on the guilty, family is not privileged, (140) confessions are favored, (141) and references to religion are not …

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Publication information: Article title: Trying International Crimes on Local Lawns: The Adjudication of Genocide Sexual Violence Crimes in Rwanda's Gacaca Courts. Contributors: Amick, Emily - Author. Journal title: Columbia Journal of Gender and Law. Volume: 20. Issue: 2 Publication date: Summer 2011. Page number: 1+. © 2008 Columbia Journal of Gender and Law. COPYRIGHT 2011 Gale Group.

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