The Gacaca courts were set up in the aftermath of the Rwandan genocide to try and help Rwandans live together in peace. But research suggests that this system has been used as a tool for vengeance, and political and economic gain. 

In the aftermath of the 1994 Rwandan genocide, the Rwandan Patriotic Front (RPF) government was faced with the task of bringing justice and reconciliation to a divided and devastated country. Gacaca, meaning “justice amongst the grass”, a traditional justice system once used to try local disputes between neighbours, was restored to relieve the overwhelmed prison system.

Initially, it was well received. For those accused of genocide crimes, it was a long awaited step towards justice, an opportunity for the truth to be heard and them to be judged (see Tertsakian 2008: 376).  For the survivors, it meant that they would be able to tell their story and have justice for their loved ones.

Between 2001 and 2012, gacaca processed nearly two million cases.  Most, if not all have involved Hutu as defendants. Gacaca was set up to try only genocide crimes. Crimes committed by RPF and out of revenge were excluded from the mandate. Waldorf notes that:

Early on Penal Reform International warned that the implementation of gacaca was emphasizing legalistic retribution over socio-political reconciliation.  Since then, gacaca has become increasingly retributive, both in design and practice

As a result, the legal system is perceived as being used against Hutu to not only criminalize them, but to obtain their wealth and resources. This paper examines the ways in which gacaca has been used as a tool for vengeance and to serve political or economic interests.

The misuse of gacaca

Beginning in March 2008, I carried out ethnographic research in Gisenyi and Cyangugu Rwanda as well as Goma and Bukavu Democratic Republic of the Congo (DRC). My research has emphasised that Hutu participants did not outright reject gacaca, rather they rejected how the system was being misused, as Zach, a Hutu participant, argued

Gacaca is good idea, but those who work in the government are bad. The rules are written in a book but they are not obeyed. …Gacaca would be very good, if the government didn’t influence the decisions.  But this is not the case; judges are influenced by soldiers, genocide survivors and others.

According to another Hutu participant, Huey:

Some Hutu begin a business and the government will stop them.  There are many example of this.  One man had a very successful business of selling materials for repairing cars.  However, people took him to gacaca because he had lots of money.  He gave them money even though he wasn’t guilty.  He gave them lots of money.  Now he had to change the way he conducts business.  He doesn’t like to show the materials he has, because he’s scared that he will get dragged back to gacaca.

Alphonse, another Hutu participant, agreed “They (the government) like to charge rich Hutu. When they don’t find anything, they take that Hutu to a different district and charge him with the same crimes there.” Robert was a Hutu participant arrested for genocide crimes in 1997 and for ‘genocide ideology’ in 2008. He believes the underlining cause for both arrests centred on property disputes:

I was accused of killing my neighbour by his brother.  During the genocide, my neighbour was caught at a roadblock.  I explained to the men there that this man was my brother, but he didn’t have his identity card to prove it.  They told me they wouldn’t kill him, but to find some way to prove his identity.  I went to the District Office and paid for an identity card that said my neighbour was Hutu and my brother.  It was a lot of money. They released my neighbour, who fled to Congo.  When he arrived at the border, the Interahamwe killed him.  I fled with my family to Congo after the genocide.  When I returned, I was arrested on genocide crimes for this man’s death.  I had spent years in prison when the formal courts found me innocent.  I told them everything and they found that my neighbour’s brother had lied. Next the brother brought me in front of gacaca for the same crimes [killing his brother]. The gacaca judges were confused as to why this case was in front of them.  They agreed with the previous ruling and I was released.  [Why was your neighbour’s brother going to all these lengths to charge you?] Because, while I was in Congo, my neighbours had moved into my house and did not want to give it back.  When I returned, I reclaimed my house, but it was stripped of all windows and doors.  Two days later I was arrested for the death of his brother.

Robert was in fact lucky. According to Human Rights Watch (HRW), Rwandan law protects an individual from double jeopardy. However, the practice has been allowed due to a loophole in the 2004 Gacaca law. HRW reported a case that was nearly identical to Robert’s, where a man was cleared by the formal courts and then given a thirty-year sentence in gacaca. He was released upon a successful appeal. In another case, in the district of Huye, a gacaca judge told how there were two cases where the men were acquitted in conventional courts, but convicted with lengthy prison sentences through gacaca (ibid).

Coercion within gacaca

Image credit: Elisa Finocchiaro/Flickr.

According to Douglas, a Hutu participant, who was also a RPF member and gacaca official, guilt and innocence are often determined by the government. He told me “For those Hutu who are rich, the decision is always made before he is charged, before the judges reach a decision.” The involvement of the government became evident when I was allowed to attend a gacaca proceeding in Douglas’s jurisdiction.

The accused was a former leader, who had been convicted by the formal courts of killing someone during the genocide. Upon appeal to the Supreme Court, the man’s conviction was overturned. He was finally released from prison and freed for only one night, when the police arrested him again. People from surrounding areas had accused him of killing and stealing a motorcycle during the genocide. However, some of those murder charges were the same accusations that the Supreme Court had previously overturned.

Douglas explained that a genocide survivors’ organisation had initiated a campaign to mobilise survivors to accuse those who were ‘guilty’ of genocide crimes. However, the organisation and gacaca officials were unable to find anyone to accuse this particular man. As a result, the trial was cancelled and the case was postponed for a month. I asked Douglas if this was a form of coercion:

Oh for sure, I’ve already been contacted. …I was told that I have to convince the judges and that we must charge this former leader and find him guilty.  We have to do this.  This is a heavy burden… As a team, we say that he is guilty. But in private we know this prisoner is innocent, we have no choice.  That prisoner was my neighbour.  I had seen everything that happened.  A former local leader took him to the market, where those Tutsi were.  He did nothing! He didn’t kill or hurt anybody!

Genocide ideology, a tool for vengeance

In all likelihood the ending of gacaca will not offset the misuse of the legal system as a tool for vengeance. In 2008, the Rwandan government passed Law No. 18/2008 that defined genocide ideology as:

an aggregate of thoughts characterized by conduct, speeches, document and other acts aiming at exterminating or inciting others to exterminate people basing on ethnic group, origin, nationality, region, colour, physical appearance, sex, language, religion or political opinion, committed in normal periods or during war.

Human rights organisations have been concerned with the imprisonment of Rwandans on vague accusations of ‘genocide ideology.’ Amnesty International argues that ‘genocide ideology’ legislation, like gacaca, ‘is compounded by the reality and perception that most accused come from one ethnic group.’  Furthermore, it is not uncommon for individuals to use ‘genocide ideology’ laws for personal gain.

In fact, Amnesty was only able to find one case where a Hutu attempted to bring ‘genocide ideology’ charges against a Tutsi. The individual was offended after a Tutsi neighbour had called him a Hutu. The case was dropped by the prosecution. Robert believed that in connection with gacaca, ‘genocide ideology’ becomes a weapon that is used to discriminate and imprison innocent Hutu:

Gacaca is used for stopping those Hutu who are rising up in society.  It allows Tutsi to take their property.  It helps to promote young Tutsi to occupy jobs.  A Tutsi can claim genocide ideology as a way of forcing a Hutu out of their post. It is like a business, anyone who gets into an argument at work can be accused of genocide ideology. Then they get put into prison.  Just ask why charges of genocide ideology only exist against Hutu, but Tutsi have genocide ideology as well.

In 2008, Robert was arrested on allegations of ‘genocide ideology’ made by the same man who accused him of murder. Robert felt that having failed to obtain his property through accusations of genocide crimes, the man now turned to ‘genocide ideology.’

I decided to rebuild a granary, after a few days the community leader came to me and told me that I must destroy the granary, because it was in the road.  I told him he didn’t have the authority… My neighbours sent that official, the same ones who had me arrested before, those that accused me before. They called the police and told them I had insulted them [a way of saying that a racial/ethnic epithet was used].  It was planned! The leader had told them that I had beaten him.  I am an old man; the leader is a young man. I cannot beat him!  When I got to prison, they charged me with crimes of genocide ideology and opposition to the government’s programmes. My wife’s brother came to intervene on my behalf.  He told me that I must be quiet; because they have many things they could charge me with.  The Police Commissioner also told me to go home and keep quiet.  Now I’m quiet.

The other man involved was a neighbour, with whom Robert was having a boundary dispute with.  According to Robert, the men believe that if Robert returned to prison, he wouldn’t be able to pay back a bank loan and his house would be repossessed, solving both problems. Robert’s testimony highlights how the misuse of the legal system through gacaca and genocide ideology presents challenges to reconciliation. While, at the same time, demonstrating that there is a desire and a demand for it, he states,

Those Tutsi were looking for any reason to condemn me to prison.  I didn’t do anything.  If I say anything, they will get me again and put me in prison. Everyday they accuse me.  Their (genocide survivors) agenda is like revenge there was no reason for them to do what they did.   They see me and their hearts accuse themselves.  When I was released (the first time) they were not happy to see me…In 2002, after I was released, I had electricity and water and my neighbours didn’t.  They came to me asking me for water.  They say, “This Hutu has TV, water, we have nothing”.  They think of me as being rich.  They say, “this Hutu, who has all these things, how can he get these things”? It’s a major reason why they want to punish me.  I put myself in Allah’s hands. …The best thing for all Rwandans would be to share power and forget.  To work for the nation, forget about the divisions or favouritism and use the same Arusha Accords as a power sharing agreement.  Only then can Rwanda be one house with one parent, to care for all children.

Conclusion

Much has been written and debated about whether or not gacaca has achieved reconciliation in Rwanda. While most would agree and recognize that gacaca was “one of the most ambitious transitional justice experiments in history”, it was also developed and carried out within the context of “deep political and ethnic division, fear, suspicion, intimidation and corruption” (see Tertsakian 2008: 362). The consequences of this is that gacaca was never going to be able to bring about reconciliation for all Rwandan, but rather contributed further wounds of mistrust and division.

Larissa R. Begley received her PhD in Social Anthropology from the University of Sussex. She is currently a lecturer in African and African American Studies at Iowa State University. Her research focuses on understanding the implication of genocide ideology laws as a form of state violence in Rwanda.

The UK is the state of registration for a large number of land-based and maritime PMSCs. How compatible is the UK regulation model for PMSCs with international norms, especially those concerning human rights?

Author’s note: this commentary draws upon work found in a previous article written by the author – ‘Regulation of the Private Military and Security Sector: Is the UK Fulfilling its Human Rights Duties?’ in (2016) 16(3) Human Rights Law Review 585-599.

There are a large number of Private Military and Security Companies (PMSCs) registered in the UK. In 2011 the Security in Complex Environments Group (SCEG) was appointed by the UK government as its partner for the development and accreditation of standards for the UK private security industry when operating overseas. SCEG is a special interest group within Aerospace Defence and Security (ADS), a trade organisation advancing the UK aerospace, defence, and security industries. SCEG lists nearly 60 UK-registered PMSCs as members. Separately, 21 UK-registered PMSCs are currently listed as members of the International Code of Conduct Association (ICoCA), set up in 2013 to oversee the implementation of a non-binding international code for private security companies, although a much larger number of UK PMSCs, over 150, had signed up to the International Code of Conduct for Private Security Providers of 2010. This emerging system of national and international self-regulation was a political choice by the UK government based on free-market thinking and limited resistance to a powerful and profitable industry.

Options for Regulation

Image credit: chuck holton/Flickr.

The post-Cold War peace dividend, which led to a surplus of well-trained former armed forces personnel, combined with the damage done to the UK’s reputation in the late 1990s by Sandline International, led to some soul searching about the regulation of the overseas operations of an emergent private military and security industry. Sandline was a private military company with a previous history of involvement in conflicts in Africa, headed by former British Army Officer Tim Spicer, that had breached a UN and UK arms embargo against Sierra Leone by supplying arms to President Kabbah. The recommendations of the Legg Report of 1998, that the government consider introducing a system of licensing for PMSCs operating out of the UK, were a direct outcome of the ‘Sandline Affair’.  The UK Foreign and Commonwealth Office’s (FCO) Green Paper, ‘Private Military Companies: Options for Regulation’ of 2002, provided a thoughtful examination of the reasons for growth of the industry, including a convincing rationale for regulating what was at the time still a fledgling industry:

Bringing non-state violence under control was one of the achievements of the last two centuries. To allow it again to become a major feature of the international scene would have profound consequences. Although there is little risk of a return to the circumstances of the 17^th and 18^th centuries when privateers were hard to distinguish from pirates, and Corporations commanded armies that could threaten states, it would be foolish to ignore the lessons of the past. Were private force to become widespread there would be risks of misunderstanding, exploitation and conflict. It would be safer to bring PMCs and PSCs within a framework of regulation while they are a comparatively minor phenomenon.

In outlining the options for regulation, the Green Paper clearly favoured a system of government licencing over a system of self-regulation based on a voluntary code of conduct. The Montreux Document (on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict) of 2008, a non-binding document agreed to by a number of countries (mainly those with a PMSC industry such as the UK or those that were hoisting significant number of contractors such as Iraq), also expressed a preference for a licensing system. The Montreux Document identifies exiting legal obligations incumbent upon states in their relationships with PMSCs when either acting as the host state, home state (state of registration) or contracting state, but it did not take the form of a binding treaty. It also recommends good practices for governments to adopt when engaging with PMSCs, but there is no supervision or enforcement of any aspect of the Document.

Given this support, the creation of a system of licensing seemed likely, particularly as such a regime had been introduced for UK domestic private security operators in the 2001 Private Security Industry Act, after a period of ineffective self-regulation. Indeed, when considering the Green Paper later in 2002 the Foreign Affairs Committee stated that, while self-regulation would establish better standards of PMSC conduct, it would not by itself prevent rogue or disreputable UK companies from acting against or, indeed, damaging UK interests or policies. Therefore, the Committee recommended a mixed system of general and specific licences.

However, the UK’s experience with contractors during its involvement in conflicts in Afghanistan from 2001 and Iraq from 2003 had significant effects. By the time the government came to reconsider the matter in 2009, a much more powerful PMSC industry in terms of reach, capability and lobbying influence, combined with a new climate of austerity following the financial crisis beginning in 2008, to push  the Conservative-led government rapidly towards the least burdensome, least interventionist and, moreover, least expensive option of self-regulation.

Despite further consultations revealing concern with a system of self-regulation, when the government re-engaged with the issue of regulation, it proceeded to create a system in which government backing for a national system of self-regulation was keyed into voluntary international codes. Concerning the latter, the UK government has been a keen supporter of the Montreux Document 2008, which provides a non-binding framework for states, as well as the International Code of Conduct for Private Security Providers of 2010. The latter contains a set of standards for security companies to respect human rights and humanitarian law, and which provides for a non-binding international form of self-regulation for the companies themselves. On the other hand, the UK has opposed any form of binding treaty requiring states to legislate for the regulation of PMSCs as proposed by the UN Working Group on Mercenaries, an item that has been on the agenda of the UN’s Human Rights Council since 2010.

Flaws in Self-Regulation

Ignoring the Rogue Traders

In 2009 the FCO optimistically estimated that in time 90% of PMSCs would opt-in to a system of voluntary self-regulation. Even if this happened, it would still leave 10% of unregulated rogue companies, potentially trading on their willingness to engage in shady operations rather than on their corporate social responsibility. A voluntary system may raise standards in the industry as a whole but it ignores the central point of regulating the industry: to deter and punish those most likely to commit abuses.

Nemo Judex in Causa Sua (no-one should be a judge in his own cause)

Self-regulation in its pure form means that the industry is essentially being given the task of acting as a judge in its own cause. This basic injustice has been partly addressed in the regime within the UK by creating a national system of monitoring, inspection and enforcement through SCEG, separated from the industry association (ADS). This has also been duplicated at the international level, with PMSC membership of the International Code of Conduct being separate from the system of monitoring and enforcement in the hands of the ICoCA. At national level, the SCEG consists of a mixture of PMSCs, with some legal and insurance industry membership, as well as representatives from the FCO and the Department of Transport. At the international level, the ICoCA comprises states (Australia, Norway, Sweden, Switzerland, UK, US), civil society and industry representatives, with equal representation of the three pillars in the Board of Directors. Clearly it is not solely a case of the industry judging the actions of its members, but a truly independent body would not include the industry at all.

Under the voluntary system put in place in the UK, the auditors comprise individuals from bodies accredited by the UK Accreditation Service (UKAS) as being able to measure the management, performance and activities of PMSCs against national (PSC1 US National Standard, 2012), and international standards (ISO 18788/28007, 2015), and these individuals and bodies are presumably approved because they are independent of PMSCs.

Limited Sanctions for Non-Compliance

Sanctions are limited, the main one comprising exclusion of a non-compliant PMSC, a sanction that ultimately does not stop the company in question from trading, as shown by the US experience of transition from ostracised ‘Blackwater’ (responsible for the 2007 Nisour Square lethal shooting of 17 civilians in Iraq), to the renamed ‘Xe Services’ in 2009, and then to ’Acedemi’ in 2011.

Applicable Standards?

The question of what standards are to be applied is not as straightforward as the documents (International Code of Conduct, PSC and ISO standards) suggest; that this system will be upholding human rights, humanitarian law and other applicable principles of international law. Given that these laws are not directly applicable to PMSCs, indeed most are designed to cover states not business actors, there is a certain amount of picking and choosing, adapting and interpreting, of standards. This is found at the international level, where the International Code of Conduct (ICoCA) covers some human rights but not others; and in the adoption of PSC1 (2012) as the national standard and ISO 18788/28007 (2015) as the international standards. These standards are not formulated in inter-governmental fora where the development and application of international norms normally take place. PSC1 was formulated by ASIS (an organisation for security professionals), and approved by the American National Standards Institute (ANSI); while ISO 18788/28007 was produced within the International Organization for Standardization (ISO), a non-governmental international organisation consisting of national standard-setting bodies.

Failure to Close the Accountability Gap

The UK government shows limited willingness to engage with its positive responsibilities under international law to ensure that private actors within its jurisdiction respect relevant national and international laws in foreign countries in which they operate. Arguably, the government’s presence on both the SCEG at national level and the ICoCA at the international level may address this deficiency, but its critical scrutiny of the practices of PMSCs in these fora is difficult to ascertain or gauge. In any case, it is certainly not as robust as a system of licencing that would require all UK-registered PMSCs to demonstrate to the licensing authorities due diligence in vetting, training, deploying and controlling personnel in conflict zones and other fragile situations. This must be backed up by a system of penalties and fines on companies and their directors for breach of the licence conditions and, ultimately, punishment for individual contractors committing serious crimes over which the UK authorities can, despite government protestations to the contrary, exercise criminal jurisdiction.

The rapid implementation of soft voluntary standards that might have been expected does not appear to have materialised as the number of certified UK registered companies is low (at just over 40 land and maritime PMSCs according to the SCEG website). This means that a majority of UK-registered companies remain unregulated. Given that such companies often operate in unregulated spaces in other countries, there remains a major accountability gap. In these circumstances it is very difficult to see how the government’s backing for a system of voluntary self-regulation for UK-registered PMSCs, no matter how sophisticated the system appears to be, has worked to close this gap.

Nigel D. White is Professor of Public International Law at University of Nottingham.