Fadel Abdulghany
The experience of Rwanda offers Syria a field for comparing the institutional challenges, functions, tensions, and risks associated with building a system of transitional justice after mass atrocities. Its most prominent institutions, namely the International Criminal Tribunal for Rwanda (ICTR) and the community-based Gacaca jurisdictions, were established in response to a specific crisis.
The value of the Rwandan experience for other contexts, therefore, lies in what it reveals of the difficulties that recur in the aftermath of mass atrocities, not in its institutional design itself.
This comparison is limited to the period from 1994 until the end of 2003, a period that covers the building of the accountability system in Rwanda and the beginnings of its operation, and it allows for the examination of the choices made at the time without projecting later outcomes onto them retroactively.
The first lesson relates to the proof of outcomes. Within a few years, Rwanda had an international tribunal, a specialized national framework for the prosecution of the crime of genocide, a legal basis for the Gacaca system, a fund for assistance to survivors, and a new constitution. However, the existence of any of these institutions or mechanisms, in and of itself, was not evidence that justice had been achieved, that assistance had reached those entitled to it, or that reconciliation had taken place.
A law, a jurisdiction, or a fund creates a pathway toward a certain outcome; however, it does not constitute evidence that the outcome has been achieved. Therefore, transitional justice mechanisms should be assessed on the basis of their demonstrated effects on accountability, truth, the rights of victims, fair trial guarantees, the capacity of institutions to restrain the exercise of their own powers, and public trust.
The second lesson relates to purpose. The justice mechanisms in Rwanda addressed criminal responsibility, but they were also instruments for managing detention, the return of refugees, property, and the rebuilding of public authority. The provisional release in 2003 of eligible detainees who had confessed to their crimes shows how these functions overlapped. Its purpose was to reduce prolonged detention and to prepare for the Gacaca system; however, it raised at the same time concerns regarding the security of survivors and refugees, and the reintegration of those released.
A given measure may serve the purposes of governance well while performing poorly from the perspective of justice. The risk increases when accountability and the consolidation of political authority are pursued through the same mechanism, because success in one domain may then be presented as success in the other. Where the two cannot be separated, the mechanism should be assessed in terms of its effects on both justice and governance.
The International Criminal Tribunal for Rwanda illustrates what international criminal justice can provide and what it cannot. Under its Statute, annexed to Security Council Resolution 955 (1994), the Tribunal had jurisdiction over genocide, crimes against humanity, and violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, committed in Rwanda during 1994.
It also had jurisdiction over such crimes when committed by Rwandan citizens in the territory of neighboring states during the same year. The jurisprudence of the Tribunal established precedents that have become a reference in international criminal law. In the Akayesu case in 1998, which was the first judgment by an international tribunal convicting an accused of the crime of genocide, the Tribunal recognized that rape and sexual violence may constitute genocide when committed with the specific intent to destroy, in whole or in part, a protected group as such.
However, a tribunal that sat outside Rwanda, in Arusha, Tanzania, whose proceedings were lengthy, and which tried only a limited number of accused, limited until the end of 2003 to those belonging to the camp of the former regime, was not able to address the sheer scale of cases. The witness support arrangements and the information center of the Tribunal in Kigali were intended to facilitate access to the Tribunal and to strengthen outreach to the public, without this removing the distance that separated international proceedings from the affected communities.
Rwanda addressed the problem of scale by distributing the work among multiple judicial bodies. National law divided suspects into categories according to the roles and acts attributed to them. Under the Gacaca legislation of 2001, the most serious category, which included alleged planners, leaders, and persons accused of rape, remained within the jurisdiction of the ordinary courts.
As for Gacaca, it was assigned the lower categories, in addition to the tasks of collecting information and alleviating the burden of mass detention. This arrangement was not free of problems. The ICTR had primacy over national courts, meaning that it could request national courts to defer cases to its competence, at a time where the national courts and the Gacaca jurisdictions bore far larger caseloads, with fewer resources and weaker defense capacities.
When allegations exceed what conventional courts can try in practice, the distribution of work may become a necessity. However, its effectiveness depends on clear rules regarding jurisdiction, referral, evidence, and appeal, and on not expecting a single body to perform all the functions of accountability.
The volume of cases placed the greatest pressure on fair trial guarantees. The confession and guilty plea procedure provided for in Organic Law No. 08/96 of August 30, 1996, required full disclosure in exchange for varying legal effects. Its aim was to obtain information, to distinguish between degrees of responsibility, and to reduce the number of full trials. However, it also created incentives for strategic disclosure and for shifting blame onto others.
The accused had the right to choose counsel; however, the State was not obliged to bear its cost, which created a risk of inequality between accused persons represented by lawyers and those who had no legal representation. Moreover, the death sentences handed down against perpetrators in the most serious category added to the concerns regarding fair trial guarantees, and they also hampered cooperation with states that were not prepared to extradite suspects to a jurisdiction that applied the death penalty.
This is a risk that exists in Syria as well, since retaining the death penalty may lead states that hold Syrian suspects, or that possess evidence against them, to refrain from extraditing them or from cooperating in their prosecution.
Gacaca shows the same problem at the local level, and it is often mischaracterized in two opposite directions. It was not an unorganized popular tribunal; rather, it was a criminal process set up by the State and inspired by local methods of dispute resolution, yet it was created by law and included public hearings, a right of appeal, and penalties for false accusations.
At the same time, it was not an ordinary professional court; its judges were lay persons, although it had powers of investigation, summons, and provisional detention. By the end of 2003, the legal framework had been enacted, amended, and piloted; however, trials at the national level had not yet begun.
This framework continued to raise an open question regarding the capacity of lay judges to apply its guarantees in environments shaped by fear, trauma, imbalances of local power, and limited legal assistance. Formal guarantees and practical capacity are two separate matters, and any process that relies on broad local participation must satisfy both.
The same distinction applies to truth. Confessions and public testimonies can reveal information, identify participants, and grant survivors a measure of acknowledgment of what they endured. However, they may also produce narratives shaped by sentence reductions, local pressure, or fear, and they may expose survivors, witnesses, and the accused to danger within their own communities.
Disclosure, thus, is not equivalent to verified truth. The conditions under which testimonies are extracted or collected, and the manner in which they are tested and protected, have a great influence on whether truth-seeking supports accountability or reproduces insecurity. A process that collects testimonies without testing them may record allegations without establishing facts.
The claims of victims require a similar degree of precision. Rwanda established a needs-based fund for assistance to genocide survivors, to which the law allocated 5% of national revenue. Organic Law No. 08/96 also provided for the possibility of civil actions and for the establishment of a compensation fund, and a ministerial order issued in the same year provided for an administrative track for dealing with certain abandoned and unregistered rural lands.
These measures recognized material harm and displacement. However, the records I have reviewed do not establish that they resulted in comprehensive reparations, large-scale monetary compensation, or the successful restitution of property.
Dealing with crimes attributed to all parties requires the same degree of discipline. The United Nations Commission of Experts reported that there was overwhelming evidence of genocide committed against the Tutsi, and evidence of serious violations committed by individuals on both sides.
On the basis of the evidence available to it at the time, the Commission found no evidence of an intent on the part of Tutsi elements to destroy the Hutu as a group, and it recorded the limitations relating to time, staff, and investigations. The jurisdiction of the ICTR applied, as a matter of law, to crimes committed by any party, including members of the Rwandan Patriotic Front (RPF).
However, those findings, this jurisdiction, the subsequent choices of the prosecution, and the establishment of individual responsibility are distinct matters. Equal treatment means the application of consistent standards of investigation, legal characterization, and proof to every person alleged to have committed a crime. It does not mean assuming equivalence between allegations whose equivalence the evidence has not established.
By the end of 2003, Rwanda had laid the foundations of a multi-tiered accountability system under extremely harsh conditions. There remained open questions regarding the fairness of detention and trials, the protection of witnesses and survivors, the adequacy of remedies, and the relationship between justice and the consolidation of political authority. The sources relating to that period support cautious conclusions regarding legal mandates, the legislation enacted, pilot activities, and early judgments.
However, they do not support the claim that justice or reconciliation was achieved. Therefore, what Syria can draw from Rwanda is a method; no Rwandan arrangement is relevant except to the extent that it addresses a genuinely comparable Syrian problem, and any mechanism Syria adopts should be assessed on the basis of its effects on victims, the accused, and institutions.
