Hybridity, Holism and ‘Traditional’ Justice: The Case of the Gacaca Community Courts in Post-Genocide Rwanda

Abstract

I. INTRODUCTION Hybridity is an increasingly common theme in the study and practice of transitional justice and post-conflict reconstruction. In recent years, a growing trend has emerged in institutional responses to complex conflict and post-conflict situations that advocates pluralism, or hybrid structures in which two or more legal systems coexist in the same social field.1 Today, legal pluralism usually involves some type of international criminal tribunal and a locally-directed truth commission, as in the cases of Sierra Leone and Burundi. The primary purpose of such hybridity is to facilitate holism. A holistic approach to transitional justice provides that multiple political, social, and legal institutions, operating concurrently in a system maximizing the capabilities of each, can contribute more effectively to the reconstruction of the entire society than a single institution. Holistic approaches cater to the various physical, psychological, and psychosocial needs of individuals and groups during, as well as after conflict. The trend toward hybrid systems coincides with the greater legitimacy afforded to and more regular use of localized methods of accountability and conflict resolution, which are often designed to augment international and national processes. In 2004, United Nations secretary-General Kofi Annan stated that, in the context of transitional societies, due regard must be given to and informal traditions for administering justice or settling disputes to help them to continue their often vital role and to do so in conformity with both international standards and local tradition.2 It is becoming increasingly popular, particularly in Africa, to employ forms of local or traditional dispute resolution in response to serious atrocities. In many cases, traditional mechanisms have been co-opted by political elites and modified so that they bear only a cosmetic resemblance to their antecedent institutions, calling into question the legitimacy of referring to these institutions as indigenous or traditional.3 This article clarifies the genesis and operation of the Rwandan system of gacaca, which is also embedded within a hybrid structure for responding to mass crimes, situating it within the broader realm of transitional justice.4 Gacaca is comprised of approximately 9000 community-based courts, each overseen by locally-elected judges and designed to adjudicate the cases of suspected perpetrators of the 1994 genocide, during which approximately 800,0005 Tutsi and Hutu and Twa, considered Tutsi sympathizers,6 were killed, many by their friends, neighbours and even family members. Gacaca operates alongside the UN International Criminal Tribunal for Rwanda (ICTR) and the Rwandan national courts. In this hybrid system, which Madeleine Morris terms one of stratified-concurrent jurisdiction,7 different judicial bodies are charged with prosecuting the same pool of suspects, subject to a legal hierarchy dictating which bodies have priority jurisdiction over any given case. Much confusion currently surrounds how best to define the history and operation of gacaca as well as how to situate it within the wider framework of transitional justice or post-conflict reconstruction processes around the world. Questions abound: Is it fundamentally a legal institution, a social institution with certain quasilegal functions, or something entirely different? What is it designed to achieve and how should we judge its effectiveness as a response to the Rwandan population's needs after the genocide? This Article shows that most critiques, especially those from Western legal commentators, mischaracterize gacaca and what it is designed to achieve. Therefore, it is unsurprising that most commentaries provide highly unconvincing accounts of how effectively gacaca contributes to post-conflict reconstruction in Rwanda. In particular, many legal critics wrongly characterize gacaca as a form of mob justice, in which the rights of individuals are sacrificed for the sake of the cheap and rapid prosecution of genocide suspects. …