Gacaca Courts: Between Fantasy and Reality

Faced with an overflowing caseload and imperatives of nationalreconciliation, Rwandan authorities have established a systemof justice, meted out through gacaca courts under the legalframework created by organic laws. The following contributionanalyses this framework, within the context of national andinternational legal systems, and pinpoints the shortcomingsof the proposed form of justice. These include legal issuessuch as the problem of retroactivity, as well as the definitionof crimes and concerns over due process and the right to a fairtrial for defendants. Practical and material obstacles arisein implementing the organic laws, alongside broader implicationsowing to the traditional nature of such courts and possibleinterference by political authorities. In this respect, thegacaca courts may be victims of their own ambitions, by seekingto respond to judicial, societal and philosophical concernsalike.     

Strict Adherence to Law by Courts in Criminal Trials

The reinforcement of legality and public order by every possible means, and the fuller protection of the rights of Soviet citizens are inviolable conditions for the successful building of a communist society in our country. In connection therewith, there is a marked increase in the demands made upon the judicial agencies, whose work must be performed with exact and undeviating execution of the laws.     

Between Law and Culture: Rwanda's Gacaca and Postcolonial Legality

This article recounts a clash between an establishment international nongovernmental organization (NGO), Amnesty International, and the government of Rwanda over the meaning of international human rights norms in a postconflict society. It offers a critical perspective on the mainstream human rights community's due process critique of Rwanda's gacaca— a system of over ten thousand local judicial bodies modeled on a precolonial communal dispute resolution the Rwandan government introduced to process the over one hundred twenty thousand suspects crowding its prisons following the 1994 genocide. This moment of norm contestation offers a lens to broader problems facing the human rights regime. It argues that Amnesty International's legalistic approach to the gacaca prevents it from appreciating its unique postcolonial hybrid form, and that other approaches, such as the one adopted by Penal Reform International, are perhaps better models for human rights praxis in the developing world.     

Making Genocide Unthinkable: Three Guidelines for a Critical Criminology of Genocide

Through a critical examination of some of the prevailing arguments for establishing a criminology of genocide, this paper seeks to demonstrate the limitations of mainstream criminological frameworks for understanding genocide. Moreover, it argues that, if we are to move beyond a mechanical application of the criminological canon to this thus far understudied area of criminal behaviour, we must develop a critical and reflexive criminological approach to the topic of genocide. In this manner, the analysis presented here follows in the footsteps of Bauman [Bauman (1989). Modernity and the Holocaust. Ithaca, NY: Cornell University Press] by asking: what can genocide teach us about criminology? In addressing this question, three guidelines for a future criminology of genocide are proposed. Briefly put, a criminology of genocide should be: (1) reflexive and non-redemptive; (2) ‘undisciplined’ and critical; and, (3) responsible.     

Reparation in Cases of Genocide

In the judgement delivered in Bosnia and Herzegovina v. Serbia,the International Court of Justice (ICJ) found that Serbia,with regard to the acts of genocide committed in Srebrenica,had breached the obligation, as set out in Article I of the1948 Genocide Convention, to prevent genocide. However, it alsofound that Bosnia and Herzegovina had no right to monetary compensationand that the mere declaration of Serbia's responsibility fornot preventing the genocide in Srebrenica was in itself appropriatesatisfaction. This article criticizes the decision of the ICJnot to accord monetary compensation, which was based on thelack of a causal nexus between the failure by Serbia to complywith its obligation to prevent genocide and the death of 7000men in Srebrenica. It argues that the Court should have shiftedthe burden of proof and should have required Serbia to showthat even if the institutions of the then Federal Republic ofYugoslavia (FRY) had taken appropriate measures, the BosnianSerbs would nonetheless have completed their criminal plans.Concerning the issue of satisfaction, the article notes thatthe ICJ could have ordered symbolic monetary damages, by takinginto account international practice and the request by the Applicant.In addition, it observes that international tribunals enjoya large measure of discretion in awarding satisfaction and that,in making a determination on the most appropriate form of satisfactionthe genocidal tragedy itself should not have been left aside.In this connection, the ICJ could have found guidance in thecase law of the European Court of Human Rights, which in someinstances has taken into account the degree of pain and sufferingendured by the victims. Finally, with regard to guarantees andassurances of non-repetition, the article notes that these donot constitute a form of reparation, but rather should be consideredas an expression of the obligation to comply with the primaryrule incumbent upon a state in particular situations. The articleagrees with the Court's conclusion that an assessment of theprevailing situation in Bosnia and Herzegovina did not provideany clues to the presence of an actual threat to the physicalintegrity of the Muslim population. However, it contends thatthe reluctance by Serbia to arrest and transfer to the ICTYGeneral Mladi, more than three months after the delivery ofthe judgment of the ICJ and the issuance of a specific orderin this regard, unequivocally demonstrates the strong ties ofsolidarity between the Serbian leadership in Serbia and in theRepublika Srpska. Serbia is making itself an ex post accompliceof genocide, with far-reaching consequences for its envisagedintegration into the European Union.     

Genocide, Complicity in Genocide and International v. Domestic Jurisdiction: Reflections on the van Anraat Case

When adjudicating international crimes, domestic courts arefaced with a choice between the application of internationallaw or national law. In the recent van Anraat judgment, a DutchDistrict Court explicitly opted for the former alternative.This approach led to the accused's acquittal of complicity ingenocide. In the Court's opinion, there was no proof beyonda reasonable doubt that van Anraat had actual knowledge of SaddamHussein's special intent to destroy part of the Kurdish population.According to the Court, such proof is required under internationallaw. This article argues that the Court's preference for internationallaw was not prescribed, either by international law or by domesticlaw, although in principle such preference may prove advisable,whenever international rules are clear and exhaustive. Aftertracing the intricate legal discussions on mens rea requirementsfor genocide and complicity in genocide, the author concludesthat the issue has not yet been completely elucidated in internationalcase law and legal literature. In situations of ambiguity whereinternational case law offers insufficient guidance, domesticcourts would better resort to their own criminal law. As Dutchcriminal law extends the mens rea of the accomplice beyond ‘knowledge’so as to cover dolus eventualis as well, application of domesticlaw might have affected the outcome of the case.     

Social science and the Courts

Social scientists have increasingly become involved in the submission of amicus curiae or friend of the court briefs in legal cases being decided by state and federal courts. This increase has triggered considerable debate about the use of briefs to communicate relevant social science research. This article evaluates the strengths and weaknesses of various methods of summarizing social science research for the courts. It also reviews the procedures for submitting briefs developed by the American Psychology-Law Society which, in collaboration with the American Psychological Association, has submitted its first brief inMaryland v. Craig, a case recently decided by the U.S. Supreme Court.The authors wish to thank James Ogloff, Kathy Roesch, and Claudia Worrell for their comments on an earlier draft     

The Mengistu Genocide Trial in Ethiopia

This article analyses the sentencing judgment issued on 11 January2007 by the Ethiopian Federal High Court in the case of MengistuHailemariam and his co-accused who had been tried, among others,on charges of genocide and crimes against humanity. This wasthe first African trial where an entire regime was brought tojustice before a national court for atrocities committed whilein power. Twenty-five of the 55 accused found guilty, includingMengistu, were tried in absentia (Mengistu remains in exilein Zimbabwe). The trial took 12 years, making it one of thelongest ever trials for genocide. In December 2006, Mengistuwas convicted by majority vote of genocide and crimes againsthumanity pursuant to Article 281 of the 1957 Ethiopian PenalCode, which includes ‘political groups’ among thegroups protected against genocide. A dissenting judge took theposition that the accused should have been convicted of aggravatedhomicide because the relevant part of the provision had beenrepealed. A few weeks later, the Court, by majority, sentencedthe top tier of the accused to life imprisonment, taking intoaccount certain extenuating circumstances. If not for these,the death penalty would have been imposed. In addition to ensuringsome accountability, the judgment is important for providingan official and detailed account of what happened in those yearsin Ethiopia under Mengistu's reign. Given that in Ethiopia thereare no official gazettes where court judgments are published,it is unlikely that the public will be able to read the judgmentand thus become aware of what had happened. In addition to analysingthe reasoning of the court, this article also looks into theprevailing political circumstances in the country and reflectsupon the trial and the reception that this important decisionhas had, and will receive, in the wider community.     

Divergent Approaches to Determining Responsibility for Genocide: The Darfur Commission of Inquiry and the ICJ's Judgment in the Genocide Case

Internationally sanctioned assessments of genocide are relativelyuncommon, and since genocide is usually assessed in the contextof an individual's criminal prosecution, assessments of stateresponsibility for genocide are even rarer. Yet two such analyseshave recently been completed: the International Commission ofInquiry on Darfur's Report and the International Court of Justice'sJudgment on genocide in Bosnia. On a key issue, the methodologyfor determining whether a state is responsible for genocide,they diverged. Whereas the Darfur Commission determined whetherthe ‘central government’ of Sudan pursued a statepolicy or plan for genocide in Darfur, the ICJ stressed thata state commits genocide through the acts of its officials,holding that if a state organ or a person or group whose actsare legally attributable to the state, engages in genocide,then the international responsibility of that state is incurred.This article critically examines the different methodologicalapproaches taken by these two bodies in light of internationaljurisprudence. It argues that the Darfur Commission erred infocusing its genocide inquiry on whether high-level officialsin Sudan's government possessed genocidal intent, rather thanon the perpetrators of the underlying criminal acts. In addition,it argues that, whether the Commission's goal was to determinestate responsibility or individual criminal responsibility,its approach was at variance with international law as elucidatedin the UN ad hoc tribunals and as subsequently confirmed bythe ICJ in the Genocide Case. In that regard, the ICJ Judgmentreestablishes two sound methodological principles: the existenceof a state plan or policy, although probative of intent, isnot an implicit element of genocide; and determining state intent(however that may be defined) is not a part of determining stateresponsibility for genocide.