Prosecuting International Crimes in Africa - PULP - University of ...

Genocide as prosecuted by the ICTR and Gacaca Courts in Rwanda 223
There should be no doubt that the law refers to the Genocide
Convention in its preamble. However, the law assumes that persons
accused of genocide as well as the prosecutor are aware of the definition of
genocide as provided for under the Genocide Convention and also the
definition of crimes against humanity as provided for under international
law. It should be noted that in terms of this law, sentences for crimes
depend on the individual’s responsibility during the genocide. An in-depth
analysis of the categorisation of criminal responsibility will be undertaken
later in the chapter. Nevertheless, it is worth noting that Rwanda has
enacted a new law on genocide and crimes against humanity which
complies with the definition of these international crimes. 2 This law only
applies to people transferred to Rwanda from either the ICTR or foreign
countries.
With the large number of people awaiting trials related to genocide,
Rwanda was not able to try all the genocide suspects. Indeed, conventional
courts were overwhelmed with genocide cases and it was estimated that
more than 120 000 individuals were detained on genocide allegations. 3
Rwanda decided to establish traditional courts known as gacaca to speed up
genocide-related cases. Gacaca jurisdictions brought together modified
elements of customary practices for resolving conflicts and aspects of a
conventional state-run punitive justice system. Gacaca jurisdictions (courts)
have been inspired by customary dispute settlement in Rwanda. 4 Judges of
the gacaca courts are known as inyangamugayo and are elected at the
community level by their peers. Their eligibility is based only on their
moral integrity and most have no legal background.
Unlike conventional courts, no prosecution is represented in gacaca
proceedings as such - the parties are the accused, victims, judges and the
community (witnesses and observers). The first law to establish gacaca
courts is known as Organic Law 40/2000 of 26 January 2001 (Establishing
the Organization, Competence and Functioning of Gacaca Courts
Charged with Prosecuting Establishing the Organization, Competence
and Functioning of Gacaca Courts Charged with Prosecuting and Trying
the Perpetrators of the Crime of Genocide and other Crimes Against
Humanity, Committed between October 1, 1990 and December 31, 1994).
2
Law 33 bis/2003 of 6/09/2003 Repressing the crime of genocide, crimes against
humanity and war crimes. One would assume that the English translation of this law is
not accurate. The word ‘repressing’ would have been replaced by ‘prosecuting’.
3
Probably the translator tried to translate the French word ‘reprimant’’ with repressing.
Penal Reform International La contribution des juridictions Gacaca au règlement du
contentieux du genocide : Apports, limites et attentes apres Gacaca http://
4
www.penalreform.org/files/Gacaca_final_2010_fr.pdf (accessed 6 April 2010).
See Human Rights Watch Law and Reality: Progress in Judicial Reform in Rwanda (2008).