This piece was published in the Global Issue Print Edition (Volume 12)
Introduction
The Rwandan genocide of 1994 is considered one of the most egregious human rights violations in modern history. In 100 days, ethnic Hutu extremists killed an estimated one million Rwandans.[1] The extremists carried out the murders with machetes at a rate three times faster than the killings during Nazi Germany’s peak.[2] While Rwandan citizens collectively reeled from the horrific scenes of slaughters marring their countryside, Rwandan women suffered an additional burden. During the 100 days of genocide, an estimated 500,000 women and girls were raped.[3] Many faced multiple assaults by military personnel who apprehended women and girls attempting to flee the scene of their initial attacks.[4] The assaults amounted to genocidal rape, which Dr. Christopher Mullins, a professor and author on the structural and cultural aspects of violence, defines as
“…mass rape that extends beyond men satisfying their immediate sexual desires in a forceful demonstration of hypermasculinity… but as a tool of terror and of population elimination … used to generate fear in a subdued population, humiliate the population (both men and women), derogate women (through spoilage of identity) and create a cohort of mixed-ethnic children to maintain the humiliation/soilage/domination.”[5]
The use of rape as a weapon of war represents a particularly damaging blow to Rwandan culture because Rwandans consider family the genesis of identity and the source of social development.[6] In committing genocidal rape across Rwanda, perpetrators created a gash in the fabric of Rwandan identity. For over half a million women and girls, the end of the genocide’s 100 days marked the beginning of surviving with the trauma of sexual assault. This paper considers international and domestic courts’ attempts to provide sexual assault victims with restorative justice. Using the background provided by the Rwandan case-study, the paper will argue that restoring justice to survivors of genocidal rape requires the international court system to work with domestic courts in establishing a community of survivors. Victim-based justice for sexual assault survivors also necessitates that courts conduct legal proceedings in a culturally appropriate way by adjusting court expectations such as language and procedure to adhere to community norms. As an inherently victim-centric approach, this paper will mirror restorative justice principles to consider how to tailor policies to survivors’ needs.
History
Rwanda was part of German East Africa from 1894 to 1918 before its transfer to Belgium under the League of Nations’ mandate system.[7] Belgium exploited ethnic divisions between the Hutu and Tutsi ethnic groups, encouraging the Hutu to resist Tutsi control. Until Belgium rule, the issue of race was irrelevant to tensions between the Hutus and the Tutsis. Instead, early strains between the two were focused on political clout since the Tutsi, an ethnic minority in Rwanda, held more political power than the Hutus.[8] Racist Belgian colonial masters who argued there were inherent differences between Hutu and Tutsi supported the 1959 Hutu Revolution.[9] This ideology of intrinsic superiority perpetuated by Belgium sparked the eruption of violence in 1994. As genocide survivor J.B. Kayigamba put it, “The colonial rulers sowed the seeds of hatred that led to later massacres of Tutsi.”[10] The direct influence of external actors in creating ethnic tensions in Rwanda produces a responsibility for these States to contribute to Rwanda’s recovery.
Restorative Justice
Restorative justice requires victim participation in legal proceedings and reparation determinations.[11] As Claire Garbett, an External Research Fellow at the International Victimology Institute Tilburg notes, restorative justice is considered highly effective in promoting long-term stability in societies reeling from recent conflict and is therefore critical in conceptualizing responses to genocide in Rwanda.[12] Restorative justice provides victims a degree of agency in the justice system. It seeks to equilibrate the power imbalance implicit in typical court proceedings. Not only are the evidentiary hurdles particularly high in legal cases involving sexual assault, but the limitations associated with sharing testimony within the rigid parameters of typical courtroom proceedings can rob victims of their power throughout the process.[13] At the heart of restorative justice are three key pillars: encounter, amends, and reintegration.[14] Following an initial crime or assault, victims move into the amends pillar. There is a common misconception that, according to this pillar, the legal community expects victims to forgive their assailants. This is not the case. Consider genocide survivor J.B.’s comment that “unlike what is suggested in Rwanda, I have never heard survivors of the Holocaust being asked to reconcile with the Nazis.”[15] As J.B. alludes to, forgiveness can be an impossible benchmark for victims to meet. However, this does not invalidate the potential for amends. Victims can seek amends in various form including as a judicial conviction, an acknowledgment of guilt from the attacker, or through discussions with the attacker’s family. The paths for victims to seek amends are unlimited, but the needs and desires of victims must drive all requests.
In a divergence from traditional court proceedings, restorative justice introduces flexibility into the justice system to acknowledge the diverse needs of survivors. The reintegration pillar is especially relevant for sexual assault survivors. It creates a responsibility to ensure protection and facilitate healing among survivors. Reintegration can catalyze linkages between the justice system and centers for survivors, providing resources to manage trauma. Through its emphasis on victims’ needs during the legal process and in healing afterward, restorative justice is a method already tailored to aiding survivors of sexual assault. Therefore, the following analysis of courts litigating post-genocide crimes in Rwanda seeks to uncover where restorative justice is lacking. Additionally, the subsequent policy section frames prescriptions in terms of restorative justice to re-ingrain agency in survivors’ legal experiences.
The Gacaca Court System
The Gacaca Courts began as an informal dispute resolution system in Rwanda as early as the 13th CE.[16] Deriving from the root word ‘grass,’ the Gacaca Courts are a communal experience intended to facilitate transparency by conducting trials publicly.[17] The system was revised in 2001 and repurposed as a means of administering justice post-genocide. Reforms mandated there be a minimum of 100 community members present before proceedings could commence. They also outlined that elected key leaders (including trained judges, local politicians, and ‘people of integrity’) would serve as judiciaries. By making the cases publicly visible, Rwandan leaders intended to build a body of collective knowledge that citizens could contribute to. With rulings decided in the public eye, the community could close the case together and move into the healing process united. By 2005, Gacaca Courts operated across Rwanda, and although it was a rather ad hoc system, they effectively adjudicated approximately 1.2 million cases.[18] This efficiency played a significant role in the nation’s ability to heal from genocide crimes.
Some legal professionals have criticized the Gacaca Courts as corrupt committees lacking the adequate legal training to rule on cases. However, when examining statistics, these claims are unfounded. Of the 169,442 Gacaca judges, only 443 were dismissed for corruption.[19] This is not to say that only 443 judges were corrupt, as some corrupt judges may not have faced dismissal. However, the decentralized nature of Gacaca Courts contained internal incentives, such as accountability to the community, to reduce corruption and improve governance. It is therefore unlikely that many judges were able to get away with misconduct.[20] Additionally, when comparing sentences assigned by the Gacaca Court to those ordered by the International Criminal Tribunal of Rwanda (ICTR) and national Tribunals, scholars found the distribution of sentences administered by the three systems was strikingly similar.[21] This indicates the Gacaca Courts were not doling out disproportionate sentences but instead adhering to legal standards. Thus, concerns about the lack of expertise among some judges did not manifest in unfair sentences.
Since the Gacaca Courts were not externally imposed, citizens saw them as legitimate and wanted to contribute. Individuals mobilized to gather evidence, and, using kinship networks, private citizens developed tens of thousands of case files.[22] The system allowed nationals to contribute to the restorative process and granted universal access to knowledge of genocidal crimes. The international community was quite skeptical of Gacaca Courts, but they amassed legitimacy among Rwandans because of their links to the Rwandan community. Of 504 Rwandans in 2011, over 90% stated they had confidence in the Gacaca process.[23] This is a heartening statistic because it suggests the communal nature of Gacaca Courts allowed the community to move on from the atrocities of genocide somewhat effectively.
While the Gacaca Courts successfully aided many Rwandans’ attempts to move past the trauma of genocide, they failed to do so with victims of sexual assault. Although beneficial in increasing transparency and communication among community members, the public nature of the courts was daunting and dangerous for victims of sexual assault. Rwandan culture emphasizes a taboo of any sexual discussions or mentions of the body. It is therefore against cultural norms for women to discuss sexual assault.[24] One woman who did testify was accused of lying and later stated “I would have preferred to testify in private because after I spoke in front of the assembly, [community members] snickered and whispered.”[25] Another woman who decided not to participate in Gacaca Courts said, “They [members of the Gacaca assembly] cry out and you become traumatized, you begin to cry. If you remember what happened, you feel that something has changed inside. An old woman like me, how can I stand before people and tell them everything?”[26] To violate cultural norms surrounding discussions of assault in front of a crowd was terrifying for many survivors. They worried that they would be considered impure following any public assault testimony and cited fears their husbands would leave them or they would never marry after testifying.[27]
The public nature of Gacaca proceedings also created safety concerns for victims. Attendee numbers at Court could range from 100 to several thousand, and since witnesses stood up before these observers, there was no option for anonymity.[28] The accused and their family members were often among the many onlookers. One woman, B.R. described the terror she felt that her rapists would harm her remaining family. “I think of my family which was large, with many children…Everyone was killed. Try to understand, there are only three children and my mother who remain alive.”[29] After discussing her rape with some community members, her rapists began threatening B.R.’s mother, and given the inadequate security afforded by the Gacaca system, B.R. quickly fell silent. B.R.’s statements emphasize the danger forced upon survivors and their loved ones when they stood up to accuse community members of sexual violence.
Reliving their past trauma is already common for sexual assault victims in private trials.[30] Remembering the events of one’s attacks repeatedly takes a toll on survivors’ psyches. To undergo this difficult process publicly and without security protections was enough to dissuade many brave women from pressing charges through Gacaca Courts. Consequently, the Court witnessed few sexual assault trials. “Since the launch of the pilot program in June 2002, 581 gacaca courts in ten provinces had registered approximately 134 cases of rape or sexual torture [as of 2004], as compared to approximately 3,308 cases of non-sexual violence crimes, such as murder, assault, or looting, brought before the same courts.”[31] This is a small sampling, but it provides insight into the disproportionate numbers of non-sexual violence cases that Gacaca Courts heard. Given these discouraging numbers, it is clear the Gacaca system did not provide restorative justice for victims of sexual assault. Most survivors were unwilling to testify about their attacks in the public settings Gacaca Courts insisted upon. They were unable to prosecute their assailants for fear of social and physical backlash. Any system that intrinsically silences victims cannot be considered an appropriate avenue for gaining justice. Therefore, while the Gacaca Courts benefited the community by promoting agency and healing from genocidal crimes other than sexual assault, it was not an appropriate system to try cases relating to rape.
The International Criminal Tribunal for Rwanda
The United Nations Security Council established the International Criminal Tribunal for Rwanda (ICTR) on January 1st, 1994, to “prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and neighboring States.”[32] The Akayesu case represented the first charges of rape as a crime against humanity and the first time rape was recognized as a means of perpetrating genocide.[33] Akayesu was the mayor of Taba, Rwanda found guilty on a variety of counts, including crimes against humanity and violations of the Geneva Conventions. Following testimony about Akayesu raping Rwandan women at his offices during the genocide, the charge of rape as a crime against humanity was added to his indictment.[34] For the international community, and particularly for victims of genocidal rape, the conviction of Akayesu acknowledged the deep fragmentation sexual violence causes. The decision set a landmark precedent and now acts as a deterrent for using rape as a tool of war. Soldiers watching the convictions knew that the decision to partake in such violence would no longer go unpunished.
While the decisions of the ICTR were critical in establishing an official ruling on rape as a means of warfare, they did not effectively provide victims with restorative justice. Patterns of victim exploitation permeated various cases the Tribunal handled. The original indictment in the Akayesu case did not include a charge of rape despite the widespread evidence of sexual violence that human rights organizations gathered.[35] The Tribunal did not initially seek to provide victims of genocidal rape with justice. However, the Jean-Paul Akayesu case changed this. Akayesu was the mayor of the Taba Commune where he had exclusive control over the Commune’s local police force. Under Akayesu’s control 2,000 people were killed during the genocide.[36] However, the prosecution against Akayesu worried that their case to prove genocidal intent was not strong enough to guarantee a guilty verdict. Therefore, when Witness H, a Rwandan women called to present evidence against Akayesu, discussed unbelievable system of mass-rape originating in Akayesu’s Bureau Communal during her testimony, the prosecution pounced. Since the prosecution had not considered evidence of rape relevant to their case, they had not asked women about witnessing assaults. It took a great deal of independent bravery from Witness H to bring these crimes to lights. Given the scale of sexual assaults occurring in the Bureau Communal which included an inhumane system of signing women out against their wills, the prosecution moved to add charges of rape as a crime against humanity and rape as a crime of genocide to Akayesu’s indictment. The prosecution presented the evidence they had gathered from Witness H to the Judges to increase the charges against Akayesu. One of the Justices on the panel granted the prosecution’s request to add this charge to the indictment, and investigators returned to Rwanda to gather evidence on sexual assaults. Since the original investigation did not emphasize the collection of sexual assault evidence, so upon returning to Rwanda, investigators had to start from square one.[37]
Upon returning to Rwanda, the Tribunal failed to liaise with local female leaders. Consequently, Tribunal workers intimidated Rwandan women as the workers jumped out of the white UN vans to bluntly question survivors about their trauma.[38] Very few felt comfortable enough in this setting to discuss the details of their sexual assaults. “Even those rare investigators who documented sexual violence did not gain the confidence of survivors and failed to ensure that witnesses were protected from possible retaliation.”[39] As a result, Tribunal workers left Rwanda and returned to Tanzania and the Hague (the two ICTR locations) with porous versions of events. The haste and insensitivity with which Tribunal members gathered data inhibited a complete account of the extent of sexual violence. The shallow nature of the investigations also failed to take customary Rwandan sexual violence responses into account.
Discussions or accusations of sexual assault violated Rwandan cultural norms, which, in turn, deterred victims from sharing their experiences. Ineffective privacy regulations by the ICTR meant Rwandans often knew who had flown to the Tribunal to testify, and these witnesses and their families were targeted. One witness to the Tribunal, witness T.A., returned from the ICTR to find her home and family attacked. As she attempted to pick up the pieces, her fiancé left her for violating cultural norms.[40] The accused and their family members had no trouble uncovering the whereabouts of witnesses given the ICTR’s ambivalence regarding witness protection. Thus, the lack of security provided by the Tribunal put these women and their loved ones in great danger. No system using women to strengthen a Court case without subsequently protecting them can be considered an example of restorative justice.
Accounts of the Tribunal’s deafness to Rwandan culture emerged time and time again throughout the ICTR’s proceedings. One such example was the use of language. Rwandan women often described their sexual assaults as “getting married.”[41] This phrase frustrated the Eurocentric counsellors in the room because it was not the standard language used to describe sexual assault in Western courts. The counsellors were comfortable working with the term rape and refused to adjust their conviction of the “right” way to label sexual assault. As one Rwandan Court interpreter put it, “In my culture you don’t say the words for genitalia. But in court you have to. It is a shock for interpreters as well as witnesses.”[42] As she noted, the Court was inclined to force victims to adjust their vernacular to the western norm, rather than recognize that the Court should prioritize the comfort of the victims testifying.
The Tribunal grappled with the convergence of several systems of law since leading judges and lawyers differed in their nationalities. There was no overarching document establishing a protocol for how witnesses should be treated during either interviews or trials. One early Tribunal worker, Lisa Pruit, created a guide for conducting appropriate interviews with victims of sexual assault. Pruit emphasized the importance of treating witnesses with dignity and compassion while providing a safe place to share their memories. She was publicly ridiculed for creating such an ‘unnecessary’ document, and eventually left the department.[43] It was not until the case of Akayesu some years later that her memo resurfaced, and efforts to make victims of sexual assault feel more comfortable in interviews began. This change only occurred when Counsel recognized the merit of the rape charges against Akayeasu; no efforts were made to support sexual assault survivors before they were directly relevant to the Court proceedings.
The Tribunal also suffered from the lack of consensus on the treatment of witnesses in the courtroom. No provisions regarding badgering the witness were agreed to before proceedings. When Pierre-Richard Prosper, an American lawyer, objected to the badgering of sexual assault victims during their cross-examinations, the presiding judge, Laity Kama of Senegal, dismissed his objections. Kama’s national legal system did not recognize the merit of such objections and thus he refused to entertain them.[44]
There were also accounts of inadequate professionalism and excessive questioning during ICTR cases. Witness T.A. endured both during her testimony. The opposing Counsel in the Butare trial insinuated that witness T.A. could not have been raped because she had not showered and therefore must have smelled.[45] A judge began laughing at this demeaning line of questioning but did not shut it down. After this cruel conduct, Witness T.A. faced another fourteen days of questioning. On the fourteenth, the opposing counsel once more asked her to go through her story, to which witness T.A. replied, “Counsel, I would like you to be told on my behalf that since I have been here, this matter has been put to me more than a hundred times. I don’t want to answer as if I have come here to sing some kind of chorus before the Tribunal.”[46] Instead of allowing her to reclaim her story and begin the healing process, inadequate legal protections exposed her to further trauma.
As Steketee and Austin note, delays in the justice process directly correlate with extended recovery times for victims.[47] Witness T.A. experienced numerous delays and extensive traumatization during her testimony at the ICTR. She faced pressure to retell her trauma countless times and faced badgering and belittling. Throughout all this psychological abuse, the ICTR made no provisions to protect her. The lack of regulatory action taken to avoid such inhumane treatment of witnesses dealing with trauma is appalling.
The rigidity of the ICTR curtailed witnesses’ abilities to tell their stories. Many victims agreed to make the trip to the Tribunal under the impression that they could tell their story in full. Instead, personal narratives were sliced into sterile pieces intended to aid the prosecution’s case by providing only digestible soundbites directly related to their argument. This clipping of victims’ stories promoted the prosecution’s legal agenda but prevented victims from taking ownership of their stories. The gathering of ICTR witness statements mirrored this issue. Investigators translated the complex and traumatic events that witnesses recounted into a one-page document that prioritized dates over victims’ experiences.[48] These statements did not provide survivors an opportunity to explain their stories; rather they were hyper-edited documents intended to benefit court cases. The Tribunal co-opted victims’ experiences, forgetting the central goal of restorative justice for victims.
The use of sexual assault victims as pawns in the legal process showcases the lack of attention to victim-based justice that characterized the ICTR. The prosecution in the Tribunal became more concerned with the logistics of winning cases than in protecting and providing justice for survivors of sexual assault.
Comparative Analysis
Before moving into recommending reforms, readers must understand where the Gacaca system prevailed when the ICTR could not and vice versa. Outlining their shared deficiencies builds the foundation for necessary reforms. While the ICTR suffered time and time again from its cultural illiteracy, the Gacaca Courts were firmly grounded in the community. The strength of these ties allowed for the mobilization of Rwandans in evidence collection and facilitated rapid rulings. The ICTR’s limited partnerships with local Rwandans harmed their evidence-gathering efforts since investigators did not know what witnesses should be contacted and were ignorant to Rwandan sexual assault vernacular. The differences in location between the two judicial systems serve as a stark reminder of which prioritized communal healing. The Gacaca’s location in Rwanda undoubtedly contributed to the high numbers of cases adjudicated, and witnesses presented there. Meanwhile, witnesses testifying for the ICTR had to fly to Tanzania or the Hague and lodge in unfamiliar accommodations for weeks at a time. The inconvenience and danger presented by such a trip could have been avoided if the ICTR had decided to operate in Rwanda.
The ICTR did serve an essential function in bringing Rwandan justice to the international stage. Its efforts in evidence-gathering confirmed the reality of the genocide to international actors. The landmark ruling of rape as a form of genocide was also incredibly validating for victims and witnesses, and its significance should not be overlooked. Given the individual merits of both systems, adjudication at both the domestic and international level is critical in cases of genocide.
Most of the shared deficiencies of the Gacaca Courts and the ICTR stem from the lack of sensitivity taken towards victims of sexual assault. Neither system set out with a commitment to care for the well-being of sexual assault survivors, and thus attorneys took no additional effort during interviews or cross-examinations to reduce the PTSD associated with assault. Both courts failed to ensure protections for witnesses, and many survivors consequently suffered retaliation. Women were killed, their families were attacked, and their properties were ransacked. By requesting testimony from these women while ignoring their subsequent security needs, both court systems treated witnesses as expendable pawns. Such practice certainly strayed far from the amends and reintegration principles of restorative justice. Additionally, both systems often forced victims to confront their attacker during trials. In permitting the accused’s attendance while witnesses re-lived their trauma, both Courts showed a profound insensitivity to the trauma associated with sexual assault.
Judicial Reform
Survivors of sexual assault face specific trauma that judicial members must be sensitive to. The development of a handbook for conduct in such cases would help reduce the re-traumatization of witnesses. Lisa Pruit and her memo regarding appropriate interviewing tactics for victims of sexual assault can serve as a foundation for a regulatory publication.[49] As part of this judicial handbook on managing sexual assault trials, clear limitations need to be placed on badgering the witness. The conduct at witness T.A.’s trial where she recounted her story over fourteen times is an unnecessary and unprofessional use of the court’s time.[50] As Pierre-Richard Prosper, the lead prosecutor in the Akayesu case, made clear during Akayesu’s trial, the lack of a consistent ruling on witness badgering was to blame for its use against sexual assault survivors.[51] Since no higher document existed dictating how Kama should rule on witness badgering, witnesses were left unprotected as Kama ruled against every objection. A potential handbook could include characteristics of witness badgering so judges from all nationalities could identify the practice. This simple addition to the handbook could significantly reduce the Court-induced trauma that sexual assault victims face.
The sexual-assault Court handbook should also include protocols regarding the presence of the accused at the trial. Should the witness request attendance from the accused in a desire to face them once more, the current system would suffice. In that case, the accused can witness the testimony. The witness can point out the accused in the trial space as is currently practiced. If, however, a witness requests that the accused be banned from the trial room during testimony, this must be respected. Attorneys could present witnesses with several photographs before the court and ask witnesses to point out their assailant as a means of identifying the accused. They could then single out their attacker without having to see them face to face. This is a far more humane method of conducting trials since coming into direct contact with their attacker can exponentially increase survivors’ anxiety and re-traumatization.[52] Such a method for managing the accused would be simple to outline in a potential handbook and place no further cost on the Courts.
Allowing narration in the courtroom must be an additional reformative component of the handbook. Legal jargon used in Court is a particular form of language. Short sentences are praised, and the desire to win is palpable. This linguistic style does not condone the nonlinear recollections of witnesses suffering trauma. Consequently, legal methodology needs to be adjusted to allow for alternative narration styles. Before the direct examination, the witness should be given time to tell the entirety of their story, un-edited for legal convenience. When the direct examination is the only method for witnesses to tell their stories, witnesses have no agency because of their inability to control the direction of testimony. Rather than being able to recall everything that happened to her, an abused woman must stick to telling the pieces of her story that are relevant to what the accused is charged with. For example, if a victim is brought in to testify about sexual assault, she cannot subsequently discuss the murders of her children that might have happened the same day since those events do not contribute to the specific sexual assault charges.[53] All the pieces of an assault story contribute to the realities of trauma. Therefore, curtailing witnesses’ stories to what is ‘relevant’ is synonymous with dictating what ‘matters.’ Such a value judgement strips the witness of agency in the process. Thus, the recollection of events strays from a reclaiming of power lost, and becomes another way in which stories are suppressed, and courtroom retraumatization is introduced. Once the witness is afforded adequate time to deliver her story, the direct examination can help the witness and the Court narrow in on the especially pertinent pieces of testimony. Such reform represents an inexpensive commitment to granting survivors’ control over their trauma.
Building Relationships
The ICTR would have had more success and saved time if it invested in building connections with the local community — specifically with Rwanda’s female leaders. The taboo nature of sexual assault applied to all aspects of a survivor’s life, and thus, when the burden of untold sexual assault became too great, it was often women leaders who women privately confided in.[54] Godelieve Mukasarai, a female Rwandan social worker, was instrumental in liaising with local women. She founded Solidarity for the Development of Widows and Orphans to Promote Self-Sufficiency and Livelihoods (SEVOTA) to seek justice for genocide survivors and immediately began facilitating the healing process for rape survivors in her community. Since she previously worked with other Rwandan based NGOs and developed relationships through them, an NGO director put her in contact with the ICTR during their second attempt to collect evidence on sexual assaults.[55] Mukasarai became critical to gathering witness testimony for the ICTR.[56] Mukasarai put it succinctly in saying, “The bridge between international justice and women had to be a member of the community.”[57] Given this sharing method, the ICTR tribunal investigators could have avoided a great deal of inefficiency and cultural illiteracy if they liaised with local female leaders. Since the Tribunal did not initially tap into these networks, they missed out on hundreds-of-thousands of witnesses because women were unwilling to break the taboo of their culture for insensitive strangers. The investigation would have benefited from additional time spent in communities, talking with women, and working to develop relationships.
Connecting with local female leaders could have offset the anxiety that Tribunal investigators induced, while aiding in the codification of culturally appropriate terms for sexual assault. Given the frustration over the phrase “getting married,” local vernacular needs to be indexed such that everyone in the Court understands what witnesses are referring to. If women feel at-ease using “getting married” to describe their sexual assaults, then they must be allowed to do so. The ICTR investigators could have worked with local female leaders to draft a document outlining phrases that Rwandan women would be comfortable using. This document could then be distributed to all Court staff. Again, the process’ goal is restorative justice, supporting victims to help them move on with the aid of the justice system. As such, the system itself must be geared towards protection for victims.
Witness Security
The most extensive oversight shared by the Gacaca system and the ICTR was undoubtedly their indifference to witness security. The public nature of Gacaca Courts made them incompatible with protecting security for victims of sexual assault. Instead, the National Rwandan Court network should have exercised complete jurisdiction over sexual assault cases because of its potential for privacy. The National Courts required no community participation and thus removed the security threat associated with allowing the accused’s loved ones to witness the testimony.[58] Given this division of powers, the Gacaca Courts could continue benefiting the country through effective prosecutions without intensifying the risk and stigma for victims of sexual assault.
Secure and discreet transportation between witnesses’ homes and the courts should also have been a priority. Under the National Court system, witnesses could be picked up at predetermined locations to avoid the dangerous optics of court employees coming to their homes. International tribunals should mirror this method. First, if possible (i.e. if active fighting is not occurring) a tribunal handling a country-specific issue should be based in that region. This serves to link the tribunal to the local community and reduce the burden on witnesses. Had the ICTR been based in Rwanda, secure and discreet transportation could have been provided for witnesses. The tragedy of witness T.A.’s return to Rwanda after being at a remote ICTR location for over two weeks likely could have been avoided if her testimony was concealed.
In the cases of both Tribunals and local judicial systems, methodologies for physical witness protection must also be put into place. The risk that witnesses accept in testifying is too significant to justify a lack of security. First, the severity of the threat towards a specific witness should be assessed. If that witness has received threats, knows of an imminent attack planned, or can reasonably indicate a real and present threat to herself or her family members, security should be provided. Witness security post-testimony could take one of two forms. First, should the witness request it, a bodyguard could be assigned to her and/or her family until the imminent threat has passed. Second, should the threat escalate, the witness and her family could be granted sanctuary in a community shelter for women (more information to follow). By tapping into the shelter networks, relocating the witness and her family should the threat fail to cease becomes possible.
Responsibility to Facilitate Healing
Pillar two of the Responsibility to Protect (R2P), a global political commitment endorsed by all United Nations member states to prevent global atrocities, outlines the international community’s duty to help States build the capacity to protect their populations.[59] While this pillar conventionally refers to preventing genocide, it is equally relevant in protecting genocide-affected populations. R2P centers around states’ responsibilities to protect their populations from atrocities or significant harms. Ingrained in this prescription are the requirements to react and rebuild.[60] The responsibility to rebuild is gaining greater traction with questions of jus post bellum or the morality of the termination phase of war.[61] R2P affiliated states could use its framework to funnel funds for post-genocide protection into Rwanda. These contributions would off-set the costs associated with witness security discussed above. They could also be leveraged as a means of financing centers for victim healing.
The IBUKA (Rwanda’s largest genocide survivor organization meaning “never forget” in Kinyarwanda) developed a peer-support program to help women gain the tools necessary for surviving with trauma.[62] Their teachings focused on assisting women in pushing past traumatic memories. While this was a useful framework, it was entirely too small to benefit the majority of Rwandan women. In 2013, there were only 30 women enrolled in the peer-support program.[63] Thus, while the materials provided by the IBUKA helped manage the trauma of some women, the limited access to the program inhibited healing and reconciliation. If instead, the IBUKA were accessible as a source of expertise in methods for female trauma reduction and healing on a wider scale, it could have produced educational materials for local communities. These resources could then have been distributed to the local women’s shelters constructed using R2P funding. These centers could tap into networks of female leaders to spread education and facilitate safe spaces for victims to discuss their trauma.
Victoire Mukambanda, a sexual assault victim who testified during Akayesau’s trial, said, “Keeping quiet kills you softly. That pain in your heart destroys you. But when you open up and you talk about it, the wound gradually gets better.”[64] Given the consistent theme of healing through participation in female support groups, this process must be encouraged for survivors. It is an international responsibility to contribute to establishing local centers dedicated to protecting and healing abused women since their reintegration is critical to rebuilding the state. National organizations such as the IBUKA do have a place in providing education for these local communities, but managing trauma ultimately takes place through intimate conversations at the grassroots level.
Framing Justice in the Victim’s Terms
The modern justice system concludes with declaring an accused either guilty or not guilty. This verdict is not enough to cover the complexities associated with granting victims of sexual assault restorative justice. For many survivors, a verdict of guilty is insufficient in making a difference for their attempts to heal. Instead, many survivors cite a desire for a personal acknowledgment of guilt from their attacker.[65] Victims often find the impersonal ruling of the Court superficial when compared to the validation afforded by an accused admitting to their role in an attack. At the end of one woman’s testimony in Akayeasu’s trial, she looked directly at him and said, “Can’t you at least say you’re sorry.”[66]
Given that victims of sexual assault face intense scrutiny over the veracity of their statements, an acknowledgment of the reality of an attack can make a substantial difference in allowing women to process their trauma. Court systems could develop several avenues to accommodate this need specific to sexual assault survivors. In the proposed handbook, a provision should be made to allow a convicted assailant to write personal acknowledgments of guilt to survivors. This measure could not be forced upon the convicted but would be looked favorably upon by the court. Victims of the assault would be under no obligation to read the acknowledgment of guilt but would have the opportunity if they so choose. This is an example of a free method that prioritizes victims’ needs and wants over strict adherence to traditional court practice. Small evolutions in legal norms, such as this one, promote restorative justice since the reparations process is developed in part by victims.
Reconciling Opposing Views
These policy recommendations focus on feasible methods for introducing restorative justice into sexual assault cases, but this integration is not supported by all legal personnel. Traditionally, law has been an inflexible institution. Legal scholars rationalized that if courts treated everyone the same, without bias or sensitivity, an equitable system would emerge. The phrase “justice is blind” indicates legal rulings should be made without considering victims’ specific circumstances. Some legal personnel cling to this norm, arguing processes of restorative justice remove impartiality and corrupt the judicial system. This reasoning directly contributed to the traumatization of sexual assault victims in Rwanda.
In the Gacaca system, women could not testify privately despite the widespread knowledge that the Courts’ public nature negatively affected rape survivors. The Gacaca system prioritized legal norms over victims’ access to justice. In the ICTR, skepticism over introducing any restorative justice processes was rampant. The early rejection of the Pruit memo indicates a disinterest in engaging with victims of sexual assault differently than other witnesses.[67] In 2005, ICTR prosecutors were reluctant to allow witnesses to access counselors. One prosecutor stated that if victims spoke to counselors, “the defense could say that someone put these stories in their heads.”[68] While this stands as another example of the prosecution prioritizing legal success over the well-being of their witnesses, it also indicates an underlying critique of reformative justice. Prosecutors feared that external involvement by counselors for sexual assault victims would compromise the impartiality that the legal system supports. As a departure from traditional practice, allowing access to counselors for victims of sexual assault violated the prescriptions of “blind justice.” It is this archaic, inflexible thinking that counters every principle of restorative justice.
Allowing sexual assault survivors access to counselors would not have affected the veracity of any sworn in statements because such counselors are tasked with aiding survivors, not manipulating their memories. Instead, the practice could have served to initiate the healing process for victims. Adjusting to a restorative justice system has no effect on the fairness of a trial since the underlying evidence provided remains the same. Rather, restorative justice reforms change the process of court proceedings to accommodate the particularities of trying sexual assault cases. By forcing justice to be ‘blind’ the legal system becomes blind to its own implicit biases, and the needs of those seeking justice. Such rigidity actively harms witnesses, whereas restorative justice has the potential to protect and heal survivors.
Conclusion
The tragedies of genocidal rape in Rwanda cannot be undone. The heartless cruelty of perpetrators left the nation fractured. However, Rwanda is a case study capable of rewriting how international and national communities deal with genocide and sexual assault going forward. Investigation of the ICTR yields the overwhelming conviction that future international Tribunals must be grounded in the local culture of the region they are adjudicating. National systems of justice excel in cultural literacy and can mobilize the community to accommodate a vast number of trials. Both the ICTR and the Gacaca Courts demonstrate the complexities associated with providing justice for sexual assault survivors, who are a vulnerable population in need of specialized legal provisions. A handbook regulating legal conduct in sexual assault cases could significantly reduce the trauma of victims currently imbedded in court proceedings. The failures of the ICTR and Gacaca Courts emphasize the importance of witness security for assault survivors. Such witnesses must be kept out of the public eye and protected from retribution. Concerns about witness security also emphasize the importance of secure centers for healing at the local level, which can inform reintegration policy. Finally, the necessity of facilitating female relationships throughout the justice process became clear in both the ICTR and Gacaca systems. These networks are central to both evidence-gathering and the trauma-reduction processes. The Rwandan genocide went down in history as the genocidal rape of a nation. To honor all victims, it is the responsibility of legal scholars to rewrite local and international judicial norms. It is only through such revisionary practices that the facilitation of restorative justice for sexual assault survivors can become a reality.
Works Cited:
Bellamy, Alex J. “Conflict Prevention and the Responsibility to Protect.” Global Governance 14, no. 2 (2008): 135-56.
Burke, Daniel. “Holocaust, Rwandan Genocide Compared.” LancasterOnline, April 3, 2006. https://lancasteronline.com/news/holocaust-rwandan-genocide-compared/article_26dd84e9-7ac0-5c7d-8061-ae459fd0ad8c.html.
Centre for Women, Peace + Security. “Jean-Paul Akayesu Case.” Tackling Violence against Women. Last modified August 7, 2016. https://blogs.lse.ac.uk/vaw/landmark-cases/a-z-of-cases/jean-paul-akayesu-case/.
Daly, Kathleen. “Restorative Justice and Sexual Assault: An Archival Study of Court and Conference Cases.” The British Journal of Criminology 46, no. 2 (2006): 334–56.
Department of Public Information. “ The Justice and Reconciliation Process in Rwanda.” Outreach Programme on the Rwanda Genocide and the United Nations , March 2014.
Fox, Nicole. “Oh, Did The Women Suffer, They Suffered So Much: Impacts of Gendered Based Violence On Kinship Networks in Rwanda.” International Journal of Sociology of the Family 37, no. 2 (2011): 279.
Garbett, Claire. “The International Criminal Court and Restorative Justice: Victims, Participation and the Processes of Justice.” Restorative Justice 5, no. 2 (2017): 198–220.
“IV. Barriers to Justice For Sexual Violence Crimes.” Rwanda: Struggling to Survive: IV. Barriers to Justice for Sexual Violence Crimes. Accessed March 28, 2021. https://www.hrw.org/reports/2004/rwanda0904/5.htm.
Kayigamba, J. B. “Without Justice, No Reconciliation: A Survivor’s Experience of Genocide.” In After Genocide Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond, edited by P. Clark & Z. D. Kaufman, 33-42. New York: Columbia University Press, 2009.
Koomen, Jonneke. “Without These Women, the Tribunal Cannot Do Anything”: The Politics of Witness Testimony on Sexual Violence at the International Criminal Tribunal for Rwanda.” The University of Chicago Press Journals 38, no. 2 (2013): 253-277.
Macauley, Cameron. “Women After the Rwandan Genocide: Making the Most of Survival.” Journal of Conventional Weapons Destruction 17, no. 1 (2013): 35–37.
“Meet Godelieve Mukasarasi, Rwanda.” Last modified August 26, 2016. https://nobelwomensinitiative.org/spotlight-godelieve-mukasarasi/.
Mitchell, Michele, and Louvel, Nick, directors. The Uncondemned. Film at Eleven Media, 2015.
O’Reilly, Colin, and Yi Zhang. “Post-Genocide Justice: The Gacaca Courts.” Development Policy Review 36, no. 5 (2016): 561–576.
“Rwanda under German and Belgian Control.” Encyclopædia Britannica. https://www.britannica.com/place/Rwanda/Rwanda-under-German-and-Belgian-control.
Steketee, Gail, and Anne H. Austin. “Rape Victims and the Justice System: Utilization and Impact.” Social Service Review 63, no. 2 (1989): 285–303.
“United Nations International Residual Mechanism for Criminal Tribunals.” The ICTR in Brief | United Nations International Criminal Tribunal for Rwanda. Accessed March 28, 2021. https://unictr.irmct.org/en/tribunal.
“United Nations Office on Genocide Prevention and the Responsibility to Protect.” United Nations. Accessed March 28, 2021. https://www.un.org/en/genocideprevention/secretary-general.shtml.
References:
[1] Nicole Fox, “Oh, Did the Women Suffer, They Suffered So Much: Impacts of Gendered Based Violence On Kinship Networks in Rwanda,” International Journal of Sociology of the Family 37, no. 2 (2011): 279.
[2]Daniel Burke, “Holocaust, Rwandan Genocide Compared.” LancasterOnline, April 3, 2006, https://lancasteronline.com/news/holocaust-rwandan-genocide-compared/article_26dd84e9-7ac0-5c7d-8061-ae459fd0ad8c.html.
[3] Ibid, 288.
[4] The Uncondemned, directed by Michele Mitchell and Nick Louvel (Film at Eleven Media, 2015).
[5] Fox, “Oh, Did the Women Suffer,” 279.
[6] Ibid, 283.
[7] “Rwanda under German and Belgian Control,” Encyclopædia Britannica, accessed March 28, 2021, https://www.britannica.com/place/Rwanda/Rwanda-under-German-and-Belgian-control.
[8] Ibid.
[9] J. B. Kayigamba, “Without Justice, No Reconciliation: A Survivor’s Experience of Genocide,” in After Genocide Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond, ed. P. Clark & Z. D. Kaufman (New York: Columbia University Press, 2009), 34.
[10] Ibid, 35.
[11] Claire Garbett, “The International Criminal Court and Restorative Justice: Victims, Participation and the Processes of Justice,” Restorative Justice 5, no. 2 (2017): 199.
[12] Ibid, 199.
[13] Kathleen Daly, “Restorative Justice and Sexual Assault: An Archival Study of Court and Conference Cases,” The British Journal of Criminology 46, no. 2 (2006): 353.
[14] Claire Garbett, “The International Criminal Court and Restorative Justice: Victims, Participation and the Processes of Justice,” Restorative Justice 5, no. 2 (2017): 201.
[15] J. B. Kayigamba, “Without Justice, No Reconciliation: A Survivor’s Experience of Genocide,” 41.
[16] Colin O’Reilly and Yi Zhang, “Post-genocide justice: The Gacaca Courts,” Development Policy Review 36, no. 5 (2016): 536.
[17] “IV. Barriers to Justice For Sexual Violence Crimes,” Rwanda: Struggling to Survive: IV Barriers to Justice for Sexual Violence Crimes, accessed March 28, 2021, https://www.hrw.org/reports/2004/rwanda0904/5.htm.
[18] Department of Public Information, “ The Justice and Reconciliation Process in Rwanda,” Outreach Programme on the Rwanda Genocide and the United Nations, March 2014.
[19] O’Reilly and Zhang, “Post-Genocide Justice,” 569.
[20] Ibid, 568.
[21] Ibid, 567.
[22] Ibid, 567.
[23] O’Reilly and Zhang, “Post-Genocide Justice,” 573.
[24] Jonneke Koomen, “Without These Women, the Tribunal Cannot Do Anything”: The Politics of Witness Testimony on Sexual Violence at the International Criminal Tribunal for Rwanda,” The University of Chicago Press Journals 38, no. 2 (2013): 259.
[25] “IV. Barriers to Justice For Sexual Violence Crimes,” Rwanda: Struggling to Survive: IV Barriers to Justice for Sexual Violence Crimes, accessed March 28, 2021, https://www.hrw.org/reports/2004/rwanda0904/5.htm.
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Ibid.
[30] Gail Steketee and Anne H. Austin, “Rape Victims and the Justice System: Utilization and Impact,” Social Service Review 63, no. 2 (1989): 293.
[31]“IV. Barriers to Justice For Sexual Violence Crimes,” Rwanda: Struggling to Survive: IV Barriers to Justice for Sexual Violence Crimes, accessed March 28, 2021, https://www.hrw.org/reports/2004/rwanda0904/5.htm.
[32] “United Nations International Residual Mechanism for Criminal Tribunals,” The ICTR in Brief | United Nations International Criminal Tribunal for Rwanda, accessed March 28, 2021, https://unictr.irmct.org/en/tribunal.
[33] The Uncondemned, directed by Michele Mitchell and Nick Louvel (Film at Eleven Media, 2015).
[34] Ibid.
[35] Ibid.
[36] “Jean-Paul Akayesu Case.” Tackling Violence against Women, Centre for Women, Peace, + Security, accessed August 7, 2016, https://blogs.lse.ac.uk/vaw/landmark-cases/a-z-of-cases/jean-paul-akayesu-case/.
[37] The Uncondemned, directed by Michele Mitchell and Nick Louvel (Film at Eleven Media, 2015).
[38] Koomen, “Without These Women, the Tribunal Cannot Do Anything,” 265.
[39] Ibid, 259.
[40] Koomen, “Without These Women, the Tribunal Cannot Do Anything,” 267.
[41] Ibid, 265.
[42] Ibid, 265.
[43] The Uncondemned, directed by Michele Mitchell and Nick Louvel (Film at Eleven Media, 2015).
[44] Ibid.
[45] Koomen, “Without These Women, the Tribunal Cannot Do Anything,” 266.
[46] Ibid. 266-267.
[47] Steketee and Austin, “Rape Victims and the Justice System,” 297.
[48] Koomen, “Without These Women, the Tribunal Cannot Do Anything,” 261.
[49] The Uncondemned, directed by Michele Mitchell and Nick Louvel (Film at Eleven Media, 2015).
[50] Koomen, “Without These Women, the Tribunal Cannot Do Anything,” 266-267.
[51] The Uncondemned, directed by Michele Mitchell and Nick Louvel (Film at Eleven Media, 2015).
[52] Koomen, “Without These Women, the Tribunal Cannot Do Anything,” 264.
[53] Koomen, “Without These Women, the Tribunal Cannot Do Anything,” 264-265.
[54] The Uncondemned, directed by Michele Mitchell and Nick Louvel (Film at Eleven Media, 2015).
[55] Ibid.
[56] “Meet Godelieve Mukasarasi, Rwanda,” last modified August 26, 2016. https://nobelwomensinitiative.org/spotlight-godelieve-mukasarasi/.
[57] Ibid.
[58] Department of Public Information, “ The Justice and Reconciliation Process in Rwanda,” Outreach Programme on the Rwanda Genocide and the United Nations, March 2014.
[59] “United Nations Office on Genocide Prevention and the Responsibility to Protect,” United Nations, accessed March 28, 2021, https://www.un.org/en/genocideprevention/secretary-general.shtml.
[60] Alex J. Bellamy,”Conflict Prevention and the Responsibility to Protect,” Global Governance 14, no. 2 (2008): 135.
[61] Ibid, 135.
[62] Cameron Macauley, “Women After the Rwandan Genocide: Making the Most of Survival,” Journal of Conventional Weapons Destruction 17, no. 1 (2013): 36.
[63] Ibid, 37.
[64] The Uncondemned, directed by Michele Mitchell and Nick Louvel (Film at Eleven Media, 2015).
[65] Ibid.
[66] Ibid.
[67] Ibid.
[68] Koomen, “Without These Women, the Tribunal Cannot Do Anything,” 272.