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. …