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230 Chapter 10 population implemented it. 20 Thus, the large scale of the genocide may be attributable to the large number of the population involved. The ICTR opted for selective justice by prosecuting those individuals bearing the greatest responsibility in the genocide, whereas the gacaca courts have opted for the categorisation of individuals based on the gravity of their involvement in the genocide. In addition, at the ICTR genocide sentences are based on circumstances surrounding the convicted (aggravating and mitigating circumstances) whereas, in gacaca courts, besides taking into consideration the surrounding circumstances (mitigating and aggravating) the sentences are pronounced based on the category to which the accused belongs to. Thus, article 72(1) of Organic Law 13/2007 of 19 May 2007 provides for life imprisonment for an individual belonging to the first category and who refuses to confess, plead guilty, repent and ask for forgiveness or whose confession, guilty plea, repentance or request for forgiveness was dismissed. The provision seems to compel individuals to confess their guilt. Article 72(2) provides for a prison sentence ranging from 25 to 20 years for individuals belonging to the first category but who have pleaded guilty, confessed, repented and asked for forgiveness once convicted. These provisions may create confusion for gacaca judges (who do not have any formal legal training) when they have to establish whether or not an accused has pleaded guilty, asked for forgiveness, repented or confessed. This is due to the similarity in meaning of the different terms. In my opinion, the legislator should have avoided repeating words which are so similar in meaning. In addition, it is very difficult for a judge to establish whether an accused has repented after pleading guilty. This is because that person might plead guilty during the proceedings whereas repentance, as a long process, happens only after the proceedings have been concluded. The same law provides for community service for individuals belonging to the second category who have confessed and who had spent half of their sentences in prison. An interesting question that arises is whether the categorisation of individuals based upon the gravity of their involvement is in compliance with the principle of equality before the law as a human rights and constitutional principle. 20 See JB Lyakaremye Les juridictions ‘Gacaca’ ou un pis-aller à l'insoluble problématique de la répression du génocide au Rwanda http://www.page-rwanda.ca/JusticeTextes Gacaca.html (accessed 5 March 2010).
8 Reparations Genocide as prosecuted by the ICTR and Gacaca Courts in Rwanda 231 Reparations may be defined as the embodiment of a society’s recognition, remorse and atonement for harm inflicted. 21 Genocide victims, like any other victims of human rights violations, need reparation to repair actual damage suffered by a human rights violation. 22 Reparation may be either moral or material or both. 23 In the case of genocide, it is regrettable that neither the ICTR nor gacaca courts provide material reparation for the victims. However, some may argue that the restitution of property is a form of reparation and that, therefore, gacaca courts have been providing material reparation because they provide for the restitution of property stolen or destroyed during the genocide. 24 9 Conclusion The chapter has analysed the prosecution of the crime of genocide in the ICTR and in gacaca courts. The ICTR and gacaca courts both have jurisdiction over genocide; the main difference lies in the lack of a definition of the crime in the gacaca law. Other differences between the two institutions are: judges from the ICTR are highly trained in law, whereas gacaca judges do not have any formal legal training. The gacaca judges’ understanding of genocide remains limited to case law and therefore they are unlikely to develop jurisprudence on the matter. In addition, sentences in gacaca courts relate to convictions based on categories of criminal responsibility. Furthermore, gacaca courts are able to impose community service as a sentence for certain catgories of offenders, while the ICTR Statute does not provide for such a sanction. 21 See N Roht-Ariaza ’Reparations decisions and dilemma’ (2004) 27 Hastings International and Comparative Law Review 157. 22 See LJ Laplante ‘On the indivisibility of rights: Truth commissions, reparations and the right to development’ (2007) 10 Yale Human Rights and Development Law Journal 147; art 2 ICCPR. 23 n 19 above. 24 S Vandeginste ‘Réparation pour les victimes de génocide, de crimes contre l’humanité et des crimes de guerre au Rwanda’ http://www.ier.ma/IMG/pdf/ reparationRwanda.pdf (accessed 1 April 2010).
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Prosecuting International Crimes in
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1 2 TABLE OF CONTENTS FOREWORD ix C
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6 7 8 6 Relevance of the jurisprude
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12 13 14 4 Conclusion 246 PART IV:
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FOREWORD I write this foreword with
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CONTRIBUTORS Benson Olugbuo is a So
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1 INTRODUCTION Chacha Murungu* & Ja
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Introduction 3 The commission of in
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Introduction 5 Apart from internati
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Introduction 7 resort. The conclusi
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PART I: GENERAL ISSUES IN THE PROSE
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12 Chapter 1 oblige states to prose
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14 Chapter 1 3 The obligation to pr
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16 Chapter 1 perpetrators of these
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18 Chapter 1 namely, national, ethn
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20 Chapter 1 the International Crim
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22 Chapter 1 amnesties for serious
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24 Chapter 1 payment of compensatio
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26 Chapter 1 punish international c
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28 Chapter 1 notorious violations o
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30 Chapter 1 in the case of the cou
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CHAPTER 2 1 Introduction IMMUNITY O
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Immunity of state officials and pro
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PART II: INTERNATIONAL COURTS AND P
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64 Chapter 3 evidentiary areas of i
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66 Chapter 3 pioneering effort in a
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68 Chapter 3 particular group, the
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70 Chapter 3 Indisputably, the abse
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72 Chapter 3 The Akayesu judgment,
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74 Chapter 3 particularly in light
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76 Chapter 3 for the destruction of
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78 Chapter 3 being of persons, in p
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80 Chapter 3 conflict - the ‘war
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82 Chapter 3 Chamber had itself fou
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84 Chapter 3 found in the first pla
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86 Chapter 3 of the Statute than
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88 Chapter 3 The majority’s appro
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90 Chapter 3 duties as a superior e
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92 Chapter 3 present at the trial,
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94 Chapter 3 international crimes.
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96 Chapter 3 advanced nor argued an
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98 Chapter 4 Unlike the Internation
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100 Chapter 4 years imprisonment wh
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102 Chapter 4 The Prosecutor’s de
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104 Chapter 4 2.3 SCSL and the Trut
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106 Chapter 4 who bear the greatest
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108 Chapter 4 responsibility for in
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110 Chapter 4 population’. 76 The
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112 Chapter 4 2.5.1 Acts of terrori
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114 Chapter 4 and Additional Protoc
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116 Chapter 4 Essentially, there mu
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118 Chapter 4 conscription of child
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120 Chapter 5 The United Nations Se
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122 Chapter 5 There are two main th
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124 Chapter 5 goal of rehabilitatio
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126 Chapter 5 that punitur quia pec
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128 Chapter 5 circumstances of the
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130 Chapter 5 retribution, deterren
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132 Chapter 5 Another argument in t
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134 Chapter 5 children. 111 Those o
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136 Chapter 5 assessed’. 119 In m
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138 Chapter 5 that there were no mi
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140 Chapter 5 Santigie Borbor Kanu
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142 Chapter 5 Chamber found no reas
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144 Chapter 5 has adopted a tone th
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146 Chapter 6 However, with the adv
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148 Chapter 6 2. 1 Africa-ICC relat
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150 Chapter 6 national elections, c
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152 Chapter 6 resolution may be ill
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154 Chapter 6 He has added that his
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156 Chapter 6 out of a desire to av
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158 Chapter 6 (b) US legislation to
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160 Chapter 6 encourage countries o
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CHAPTER 7 1 Introduction THE TRIAL
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The trial of Mengistu and other Der
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Page 191 and 192: The trial of Mengistu and other Der
Page 197 and 198: CHAPTER 8 1 Introduction THE TRIAL
Page 199 and 200: The trial of Hissène Habré in Sen
Page 209 and 210: CHAPTER 9 1 Introduction PROSECUTIN
Page 211 and 212: 2 Genesis of the conflict Prosecuti
Page 213 and 214: Prosecuting international crimes by
Page 233 and 234: CHAPTER 10 1 Introduction GENOCIDE
Page 235 and 236: Genocide as prosecuted by the ICTR
Page 241: Genocide as prosecuted by the ICTR
Page 246 and 247: 234 Chapter 11 losses in excess of
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Page 256 and 257: 244 Chapter 11 3.3 Capacity problem
Page 258 and 259: 246 Chapter 11 support us. They did
Page 261 and 262: CHAPTER 12 Benson 1 Introduction PO
Page 263 and 264: Positive complementarity and the fi
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Page 290 and 291: 278 Chapter 13 international crimin
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280 Chapter 13 Africa’s involveme
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282 Chapter 13 countries has tended
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284 Chapter 13 passed domesticating
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286 Chapter 13 crimes within their
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288 Chapter 13 offences. Procedural
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290 Chapter 13 Constitution, 62 thi
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292 Chapter 13 4.1.3 The law regula
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294 Chapter 13 either reciprocal or
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296 Chapter 13 committed to fightin
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298 Chapter 13 The procedure for th
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300 Chapter 13 trial. While the Rom
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302 Chapter 13 Having draft legisla
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CHAPTER 14 Lee 1 Introduction IMPLE
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Implementation of the Rome Statute
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Books SELECTED BIBLIOGRAPHY Allen,
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Selected bibliography 333 Neier A (
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Selected bibliography 335 Chitiyo,
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Selected bibliography 337 Jalloh, C
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Selected bibliography 339 Roht-Arri
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Selected bibliography 341 Report on
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Table of cases 343 Right of Passage
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Table of cases 345 Prosecutor v Vas
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Table of cases 347 Muhimana v Prose
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Table of cases 349 Prosecutor v Rut
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Table of cases 351 and the Governme
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Table of cases 353 Prosecutor v Ses
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Table of cases 355 GAOR, 45th Sess.
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Table of cases 357 R v Bow Street M
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360 Subject index Domestication ...
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362 Subject index S Selective justi
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