Section 2 - History, memory, and justice

Contents

1. Local justice: the Gacaca courts, the genocide of the Tutsis in Rwanda
2. Addressing mass atrocities with an international criminal justice system: the International Criminal Tribunal for the former Yugoslavia (ICTY)

Following the end of the Cold War, despite the hope for a “New World Order” free from conflict, the 1990s witnessed deadly inter-state conflicts erupting in regions such as the Balkans (1991-2008) and Rwanda (1994).

In the former Yugoslavia, mass atrocities, including ethnic cleansing against Bosnian Muslims, occurred, constituting large-scale violence targeting specific populations. Jacques Sémelin's definition in Purify and destroy: the political uses of massacre and genocide(2005) characterises these actions as an organised process of civilian destruction. Despite international awareness, these crimes could not be prevented. Nevertheless, the United Nations took steps to address the issue of impunity by establishing the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993.

In Rwanda, approximately 80% of the Tutsi minority, totalling one million people, were killed within three months, between April 6th and mid-July 1994. To address this recognised genocide, the Rwandan government established local tribunals known as Gacaca, alongside international justice efforts such as the International Criminal Tribunal for Rwanda (ICTR) established in 1994.

These examples illustrate several significant trends:

The emergence of exceptional judicial mechanisms at various levels since the latter part of the 20th century.
The endeavour to standardise legal procedures through the implementation of international law.
The crucial role played by both history and justice in the reconstruction of societies traumatised by genocide.

Is it possible for justice to ease, soothe and reconcile the memories of genocide at various levels (local, national, international) and contribute to the construction of history?

#1. Local justice: the Gacaca courts, the genocide of the Tutsis in Rwanda

Rwanda, formerly a Belgian colony from 1916, gained independence in 1962. Despite its small size, the country is densely populated, with a land area comparable to that of Brittany (26,000 km²) and a population of six million in 1994. The country is known as the “land of a thousand hills.”

It's essential to recall Raphael Lemkin's definition of genocide to understand the gravity of the events. Genocide is the intentional and systematic destruction of a human group, wherein members are targeted and killed as such.

The United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, outlining five criteria (though meeting just one is sufficient to classify an act as genocide):

Mass killings of a group.
Deliberate infliction of serious bodily or mental harm on members of the group.
Intentional imposition of conditions of life calculated to bring about the group's physical destruction in whole or in part.
Measures intended to prevent births within the group.
Forcible transfer of children of the group to another group.

#A. The genocide of the Tutsis, known as "the village genocide"

Hélène Dumas, a historian, authored a book on the topic of "the village genocide" in 2014.

#a) Origins of the genocide

The Belgian colonisers played a role in the division of the country that ultimately led to the genocide. They established racial or ethnic categories of Hutus and Tutsis to facilitate control over the country, transforming social categories (Hutus predominantly being peasants, and a minority of Tutsis as wealthier herders) into ethnic/racial distinctions. Tutsis were purportedly of nobler origin due to their supposed Ethiopian ancestry). However, no substantial differences existed between these created ethnicities: both groups shared the same language, religion, and customs. This racialist perspective propagated by the colonisers was adopted by Rwandan elites, as evidenced by ethnicity being mentioned on identity cards.

Long-standing and violent conflicts between Hutus and Tutsis have marked Rwandan history. In the 1960s, there were already massacres of Tutsis by Hutus, leading to the exodus of Tutsis from the country. For instance, between 8,000 to 12,000 Tutsis were killed in 1963 alone. There was a desire for Tutsi children to return to Rwanda, leading to the formation of the Rwandan Patriotic Front (RPF) in 1987. The civil war erupted in the late 1980s, pitting the Tutsi-led RPF against the Hutu-dominated government under President Juvénal Habyarimana, who had been in power since 1973.

The Hutu regime deliberately and systematically planned the genocide by portraying Tutsis as an internal threat through intense propaganda via radio, schools, and newspapers, which permeated the population before the genocide. This propaganda depicted all Tutsis as members of the Rwandan Patriotic Front (RPF) and thus labelled them as cockroaches (inyenzi), dehumanising them in the eyes of the population. Additionally, the Hutu government armed local Hutu militias, such as the Interahamwe (meaning “those who work together”), whose work entailed massacres.

France provided support to the Hutu government, especially as Tutsi rebels were backed by the English. The Tutsis were thus perceived as a threat to French influence in the region. France offered logistical support to the Hutu regime, including arms and military training.

The international community intervened but was unable to prevent the genocide: In 1993, peace agreements were brokered between the Hutu government and the RPF to ensure peace in Rwanda. However, these agreements were never fully implemented. The UN deployed a peacekeeping mission (United Nations Assistance Mission for Rwanda: UNAMIR, 1993-1996), consisting of 2,500 blue helmets under Canadian command. However, the number of peacekeepers was reduced to 200 in 1994 due to a lack of consensus at the UN, attributed to the failure of Kofi Annan, who was then head of UN peacekeeping operations, to garner support for intervention.

#b) The genocide: 80% of Tutsis, one million deaths by machete in three months

The genocide was triggered by the shooting down of the Hutu President's plane on April 6, 1994, an incident that remains unresolved. Massacres occurred across the country, with a higher number of victims in the south due to the larger Tutsi population.

This genocide was characterised by collective killings carried out by relatives, encouraged by propaganda and impunity. Genocidal groups, comprising both young men, women, and children, operated in small formations, exterminating victims. Massacres took place in public places, such as churches and schools, in full view of everyone. Unlike the Holocaust, there were no large-scale killing centres. Instead, everyday rural weapons like machetes were predominantly used, with only 15% killed by firearms. The entire group: men, women, and children, was targeted with the intention to humiliate and exterminate to prevent reproduction (including acts of rape and disembowelment).

This is a "genocide of proximity" that implicated a significant portion of the population. It was orchestrated and coordinated by the government and military but executed by the Hutus under the supervision of militias.

#c) The end of the genocide

In late June 1994, French troops were deployed in Rwanda as part of Operation Turquoise, without a UN mandate. However, their role remains ambiguous and subject to ongoing debate. In 2021, President Macron acknowledged on behalf of France “an overwhelming responsibility in a spiral that led to the worst,” but stopped short of admitting guilt or complicity with the genocidal regime in the spring of 1994.

On July 4, 1994, the Rwandan Patriotic Front (RPF) seized control of the capital, Kigali, toppling the Hutu government. Paul Kagame, a Tutsi, emerged as the dominant figure in the regime and has been president since 2000, marking the end of the genocide. If the RPF had not come to power, the genocide could have been even more catastrophic.

Since the adoption of the 2003 constitution, the political reference to "Hutu-Tutsi" is unconstitutional.

#B. Justice at the international level: ICTR, International Criminal Tribunal for Rwanda in 1994

#a) An essential role in rebulding the society but a flawed execution

In the summer of 1994, chaos reigned in Rwanda: lawyers were scarce, and those remaining were unwilling to defend genocidaires. A lack of judges exacerbated the situation. In 1996, a law was passed to establish conventional courts at the national level. However, fewer than 10,000 judgements were rendered in eight years, despite a high number of suspected perpetrators,nearly 120,000, in prisons by 2001.

Specialists estimated that it would take a century to try them all. This situation reflects the execution of a transitional justice: a set of measures employed by a new regime to restore peace and justice in a context of post-conflict or democratic transition.

#b) Local jurisdictions, the Gacaca courts

The Gacaca courts, which operated between 2006 and 2012, epitomised a form of popular, non-professional, decentralised justice entrenched in the local context of Rwanda. Their operation was not entirely traditional but rather reflected the unique circumstances of the genocide. “Village justice” was meant to address “the village genocide,” these courts entrusted the community itself with dispensing justice, recognising that each village comprised both victims and perpetrators. Chaired by local figures, often elected and esteemed for their impartiality, the courts facilitated public debates in open-air settings, typically at the heart of the genocide site, where witnesses and victims actively participated.

This justice system relied heavily on the confession of the accused. Confessions were incentivised with reduced sentences, aiming to encourage perpetrators to openly acknowledge their crimes before the community, assist in locating victims' remains, and seek forgiveness. Defendants were required to defend themselves without legal representation. Sentences were prescribed according to a well-defined code, with no provision for the death penalty.

The Gacaca courts boasted significant success, with approximately 12,000 jurisdictions established, over two million cases processed, and 1.7 million convictions recorded, demonstrating that even minor offenses like looting did not go unpunished. However, they were not without limitations and criticisms. Challenges included the absence of legal representation, limited resources for investigation, the potential for witness intimidation, and the risk of judicial corruption due to judges' lack of pay and formal training.

The Gacaca courts allowed for:

Judging a maximum number of individuals in a minimal amount of time.
Preventing both victims and perpetrators from feeling a sense of impunity.
Relieving congestion in prisons and the justice system.
Facilitating reconciliation for the establishment of a collective memory and history.
Providing a “neighborhood justice” capable of acknowledging the magnitude of the crimes. The judgements give voice to the victims, allowing them to articulate their trauma. The justice process helps to ease relations between survivors and perpetrators who may still live in proximity.
Enhancing understanding of the genocide of the Tutsis, thereby contributing to the reconstruction of the nation. For example, the Gacaca courts present diverse and mosaic narratives that demonstrate aspects like the Hutu resistance. This form of testimonial justice serves historians and offers a narrative distinct from the national discourse.

Overall, the combination of justice at both local and international levels has been complementary and effective, serving both memorial, historical, and judicial purposes, allowing for both judgement and reconciliation. The widespread participation of the population in the genocide and the challenges in assigning responsibility underscore the political project of reconciliation aimed at national unity, which was facilitated through the local justice of the Gacaca courts.

#2. Addressing mass atrocities with an international criminal justice system: the International Criminal Tribunal for the former Yugoslavia (ICTY)

#A. Civil war in former Yugoslavia after the breakup of the Yugoslav Federation (1991-95)

In the early 1990s, following the collapse of the USSR, the popular democracies in Eastern Europe (communist regimes allied with the USSR) collapsed as well.

#a) Yugoslavia

The country was created in 1918 and evolved into a communist federal State in 1945, under the leadership of Tito, maintaining a degree of independence from the USSR. It consisted of six republics (Serbia, Bosnia and Herzegovina, Croatia, Slovenia, Montenegro, and Macedonia) and two autonomous provinces (Kosovo and Vojvodina), with the federal capital situated in Belgrade, Serbia. The central power, predominantly wielded by Serbs, tended to suppress national and regional aspirations.

#b) The awakening of nationalism: multiple wars from 1991

The wealthiest States, Croatia and Slovenia, declared independence in 1991, triggering secession. The Serbian central government, unable to accept this, deployed the army to maintain federation unity. The newly independent territories were also ethnically diverse, with Orthodox Serbs, Catholic Croats, and Muslim Bosniaks in each.

This diversity led to significant internal community tensions. Bosnia declared independence in 1992, sparking a civil war with 100,000 casualties, half of whom were civilians, and 2 million refugees. Bosnia and Herzegovina had the most balanced and intermingled communities. Bosnian Serbs, manipulated by the central power, seceded to form the Republic of Serbian Bosnia, led by Radovan Karadžić and supported by Serbian President Slobodan Milosevic.

#c) Mass indoctrination: communities designating each other as enemies

Ethnic cleansing is the forced displacement of civilians, victims of mass violence, to achieve a “culturally homogeneous” population. Bosnian Serbs expelled other communities, Croat and Bosniak, through house destruction and executions. For instance, 100,000 Croats and 700,000 Bosnian Muslims were expelled from Bosnia and Herzegovina by the Serbs.

Genocide was committed by Serbs against Bosniaks: 33,000 Bosniaks were murdered. For example, in 1995, the Srebrenica massacre in Bosnia and Herzegovina, which was supposed to be protected by UN peacekeepers. More than 8,000 Bosniaks were executed by the Serbian army under General Ratko Mladić, supported by Serbian militias. The ICTY characterised these events as massacres constituting genocide.

#B. International community's reaction: the International Criminal Tribunal for the Former Yugoslavia (ICTY)

In the 1990s, international justice resurged in the context of mass violence broadcasted live on TV, reigniting international justice from the Nuremberg and Tokyo tribunals after World War II.

#a) Reaction to mass crimes committed in former Yugoslavia

As early as 1992, the deployment of UN peacekeepers (UNPROFOR, United Nations Protection Force) failed to prevent the massacres. In May 1993, the UN established an exceptional international criminal tribunal, the ICTY, in The Hague, Netherlands.

#b) A dual intent

The international community's response, despite diplomatic and operational challenges, highlighted its commitment. Efforts to prevent impunity for genocidal acts involved decentralising legal proceedings beyond territorial confines.

#C. The ICTY: a milestone in the establishment of International Justice

#a) Characteristics of the ICTY

The International Criminal Tribunal for the Former Yugoslavia (ICTY) operated as a civilian tribunal, unlike the military tribunals of Nuremberg and Tokyo in 1945-1946. It was exceptional: it was not a permanent institution and functioned during the conflict. The tribunal was delocalided in The Hague to ensure impartial justice, recognising the impossibility of fair judgements being rendered on-site during the war. Its mandate included judging political and military leaders for war crimes, such as deliberate attacks on civilians and mistreatment of prisoners, as well as crimes against humanity, such as forced disappearances and widespread rape. The focus was primarily on prosecuting high-ranking officials rather than all perpetrators, aiming to hold those responsible for atrocities accountable.

#b) Operation and assessment

Each defendant received a fair trial, with debates and lawyers having access to all the evidence. And the assessment of the ICTY goes beyond merely judging those responsible for the conflict:

No impunity.
Difficult transition out of conflict when the perpetrators are fellow citizens, necessitating transitional justice.
It allowed victims to feel heard and reclaim their place in society.
Through public and highly publicised trials, the ICTY contributed to the restoration of civil peace.

#c) Examples of trials

Radovan Karadžić was tried in 2009 and again in 2019. Ratko Mladić faced trial in 2017. Both were sentenced to life imprisonment for charges including genocide (Srebrenica), crimes against humanity, and violations of the laws or customs of war. The evidence presented during their trials included testimonies from witnesses and the discovery of mass graves by investigators.

#d) A decisive step towards permanent International Justice in 2002

In 2002, the International Criminal Court (ICC) was established in The Hague, serving as a permanent and universal jurisdiction under the United Nations.

It prosecutes four main crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. Eighteen international judges are elected for nine-year terms by the Assembly of the 124 signatory States (excluding the USA and Russia).

However, the ICC has limitations. It can only prosecute individuals who are nationals of signatory States or if the crimes were committed within the territory of a signatory State. Additionally, it faces challenges in making arrests in States that refuse to cooperate. The ICC only intervenes when national jurisdictions lack the willingness or capacity to prosecute international crimes. For instance, in 2020, the ICC opened 13 investigations, including one for Afghanistan.

#D. The role of justice in shaping History and appeasing memories

#a) Challenges posed by crime against humanity

The administration of justice for crimes against humanity is fraught with challenges. Initially, justice systems were designed to individualise sentences, which became difficult when the victims number in the thousands or even millions (such as in the Holocaust). It also became difficult when there were numerous accused individuals (in post-war Germany under Western Allied occupation, for example, where 186,000 suspects were detained until 1947).

Moreover, these crimes are often instigated or ordered by a State, sometimes through coercion or indoctrination. Therefore, understanding the degree of coercion versus free choice among the accused becomes crucial, as some defendants claim they were compelled to commit the crimes.

Additionally, the complexity of the situations being adjudicated, coupled with the difficulty of comprehending the violence and the lack of evidence (such as concealed bodies or destroyed archives), further complicates investigations.

#b) Facilitating democratic transitions: transitional justice

After conflicts: justice helps reconcile. Following serious human rights abuses, justice is essential to restore national unity and appease memories. For example, in France, from 1944-45, to halt spontaneous purges (violence and murders against suspected collaborators), the Provisional Government of the French Republic (GPRF) established "legal purges" (100,000 convictions) followed by amnesty laws (to quickly reduce the rift among the French).

The use of justice has become more common, especially since the 1970s, to settle the legacy of dictatorial regimes. Transitional justice is judicial or non-judicial measures that a new government employs to restore peace and the rule of law in a context of conflict resolution, democratic transition. The establishment of "truth and reconciliation commissions" has become the emblematic device, adopted in around 40 countries, for example, in South Africa.

Reconcilitation commissions seek a compromise between former enemies and favour non-judicial solutions. It is often a staged public reconciliation that replaces criminal prosecutions. International institutions promote them because they are believed to alleviate tensions more effectively than traditional trials.

The International Center for Transitional Justice was created in 2001.

Why can't justice always bring peace? The desire to address crimes raises the dilemma of justice versus peace: seeking justice (and thus imposing heavy penalties) can reignite tensions.

Justice is sometimes sacrificed in the name of stability. Amnesties are common: more than half of transitional justice measures between the 1970s and 2010. For example, in Latin America, former military personnel guilty of leading Operation Condor in the 1970s to eliminate left-wing opponents, under six dictatorships, were granted amnesty.

Transitional justice does not garner unanimous support: victims not only seek the healing of painful memories but also material reparations.

Reconciliation is therefore primarily a political project (seeking national unity) rather than genuine justice. Memories can thus hinder justice.

#c) Justice and memory

Debates give legitimacy and dignity to the victims, allowing their suffering to be acknowledged. Sometimes, it is during these proceedings that bodies are identified.

Trials enable the memory of various groups to be constructed and pacified.

#d) Justice and History

Investigations reveal the roles of actors in mass violence. Justice establishes useful milestones for constructing history: through trials, historians can obtain information about the sequence of events.

Time works against justice as the number of potential witnesses dwindles. Historians can assist in contextualisation. For example, in 2014, Hélène Dumas, a French historian specialszing in the Rwandan genocide, served as a "contextual witness" in trials of genocide perpetrators who had sought refuge in France.