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CIAO DATE: 6/99
The Pursuit of Justice and Reconciliation: Responding to Genocide in Cambodia and Rwanda *
Department of Government
University of Sydney, Australia
International Studies Association
40th Annual Convention
Washington, D.C.
February 16–20, 1999
Genocide & The International Human Rights Regime
Over the past 50 years, an estimated 86 million civilians have been killed in non-international conflicts, including genocides which have claimed the lives of more than 10 million people (Bassiouni, 1997; Nyankanzi, 1998). In addition to those killed, an unknown number of people have suffered human rights abuses, rape and torture at the hands of governments and opposition groups engaged in identity-based conflicts and other civil wars. At the same time, the international community has developed an impressive human rights regime to complement the laws of war and international criminal law which had previously focussed almost entirely on controlling the conduct of international armed conflicts.
The international human rights regime developed since World War Two represents a new focus of international law — the protection of individuals, including citizens who are abused by their own governments. The list of international human rights treaties adopted by the UN General Assembly in the last fifty years includes the Convention on the Prevention and Punishment of the Crimes of Genocide (1948), Convention on the Elimination of All Forms of Discrimination Against Women (1979), International Convention for the Elimination of All Forms of Racial Discrimination (1965), Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), Convention on the Rights of the Child (1989) and the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973). 1 In addition, there are regional human right treaties in Africa, Europe and the Americas; a number of United Nations Declarations such as the Declaration on the Protection of All Persons from Enforced Disappearance (1992) and Declaration on the Elimination of Violence Against Women (1993); and the Geneva Conventions and their Protocols covering the protection of human rights of soldiers, prisoners of war, and civilians during international and non-international armed conflicts. The Universal Declaration of Human Rights (1948) and its two Covenants (1966) are now considered part of customary international law.
Human rights are thus, at least theoretically, protected under international law. 2 There are twenty-four categories of international crimes, including war crimes, crimes against humanity, and genocide as three of the most serious after crimes of aggression. As indicated above, other crimes relating to the protection of human rights include racial discrimination and apartheid, slavery and related crimes, torture, and unlawful human experimentation (Bassiouni, 1994). And yet states have done little to develop mechanisms to enforce the law against these crimes. The International Court of Justice is only accessible to states (or UN bodies), and thus offers little protection to individuals or groups who suffer human rights abuses at the hand of states. The Genocide Convention requires that states enact offences of genocide in their domestic criminal codes and ensure that it is effectively punished, but given that genocide is generally a state crime it is unrealistic to expect that states will pursue trials unless the perpetrators have been vanquished, as in the case of Rwanda (Schabas, 1999).
The 1948 Genocide Convention defines genocide as “acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group” (Article II). The limitations of this definition (i.e. not including political, economic or social groups) have made it more difficult for the international community to legally determine whether genocide has occurred. This observation applies, for example, to the case of Cambodia where it was not clear that the victims of mass starvation and killings comprised a group identifiable as such under the Genocide Convention (Kiernan, 1997). From a moral or ethical perspective, however, mass killings of any group would seem to warrant the same condemnation. It has therefore been argued that the legal definition of genocide should be expanded to include the “mass destruction of any human collective based on any integral element of human identity” (Ratner & Abrams, 1997, p. 43). This is certainly a more useful definition for the purposes of comparative study of genocides and attempts to foster reconciliation in the aftermath of genocide. The legal definition becomes relevant when considering the obligations to prosecute the perpetrators.
The implementation of international human rights and humanitarian law to prevent genocide and crimes against humanity has been notoriously weak, primarily because of the apparently competing requirement of adherence to the twin principles of state sovereignty and non-interference in the internal affairs of states (Pease & Forsythe, 1993). When faced with political concerns and constraints, states fall back on respect for state sovereignty as an excuse for inaction, at least at a collective level. This is illustrated most vividly in the case of the 1994 Rwandan genocide which the international community failed to stop despite clear evidence before and during its occurrence. 3 By contrast, there was some doubt about what was happening to the people of Cambodia during the closed regime of 1975-78, although there were refugee reports of mass killings and starvation reported widely in the press in 1977-78 (Kiernan, 1997). The international community failed to identify that a genocide was being perpetrated in Cambodia and therefore failed to prevent the Cambodian genocide from occurring, but the Vietnamese invasion and occupation did prevent the genocide from continuing 4 .
On an individual level, states have intervened in internal conflicts, often in neighbouring states, where the conflict has been perceived as a threat to national security. This was the case when Tanzania intervened in Uganda to end the genocidal regime of Idi Amin, and the Vietnamese intervened in Cambodia and overthrew Pol Pot and the Khmer Rouge. Only following the end of the Cold War, has the international community begun moving more towards intervention in internal affairs on a collective basis (through the United Nations or regional organisations such as the OAU or NATO) where gross abuse of human rights has occurred, as in Iraq, Somalia and the former Yugoslavia. However, this progress has been inconsistent and largely ineffective in promoting change. Some lives have been saved, but the tyrannical regimes and leaders have remained. For example, the US-led, UN-sanctioned humanitarian interventions in Somalia and Iraq were breakthroughs in the implementation of international law, but not very successful in protecting the victims from further abuse (Clements & Ward, 1994; Community Aid Abroad, 1994; Ramsbotham & Woodhouse, 1996).
In the area of accountability and punishment for crimes against humanity, genocide and war crimes, the international community has made more significant progress in recent years, most notably with the formation of the international criminal tribunals for Rwanda and the former Yugoslavia, and the recent establishment of the International Criminal Court. However, this progress has only occurred after 40 years of inaction following the Nuremberg and Tokyo tribunals. During the Cold War in particular, corrupt regimes were able to abuse their citizens with impunity as the international community suffered from the paralysis of Cold War alliances and Western political priorities driven by anitcommunism. National governments in Africa, Central America and Europe implemented transitional justice mechanisms to deal with former corrupt regimes and human rights abusers, but these did not involve the international community and mostly incorporated amnesties for the alleged perpetrators in the interests of political stability (Hayner, 1994; Kritz, 1995). 5
The problem of impunity is defined by the United Nations as covering those measures and practices whereby states fail in their obligation to investigate, try and sentence those responsible for the systematic practice of gross violations of human rights, and thereby impede the enjoyment by victims and their families of the right to know the truth and have their rights restored (quoted in Harper, 1996, p. ix). Impunity can occur by default or can be part of a deliberate policy of political expediency, as in Cambodia. In the interests of reconciliation, perpetrators of human rights abuses and even genocide may be granted amnesty. But, for some people, especially the survivors of genocide, reconciliation will never be possible without justice.
An example of the importance of the international enforcement of human rights law and overcoming the tendency to permit impunity for political leaders guilty of war crimes, genocide and other crimes against humanity is a comment made by Adolf Hitler in 1936 “and who now remembers the Armenians?” It seems that impunity can breed contempt (Blakesley, 1997, p. 192). And yet, despite the trials of Hitler (in absentia) and other Nazi war criminals at Nuremberg, we have subsequently witnessed massive human rights violations in numerous countries of Central America, Africa, Asia and Europe, including the genocides in Cambodia, Rwanda and the former Yugoslavia. The Cambodian genocide took place during the Cold War, making it more difficult for the international community to mobilize to prosecute the perpetrators, but the two recognised post-Cold War genocides have resulted in the establishment of International Criminal Tribunals. For the first time since the signing of the 1948 Convention on the Prevention and the Punishment of the Crime of Genocide, the crime of genocide is being prosecuted. 6 Finally, after nearly 50 years, an International Criminal Court is to be established which should also assist in the prosecution and punishment of perpetrators of genocide, war crimes and other crimes against humanity. It is too soon to determine if these developments will act as deterrents to would-be war criminals 7 , but in the meantime, we can at least start to assess the impact of these tribunals on the process of reconciliation and peacebuilding in the communities affected.
This paper analyses the concepts of justice and reconciliation and discusses the accountability mechanisms that may be implemented in the pursuit of justice and reconciliation in the aftermath of genocide. The two case studies examined are Cambodia and Rwanda. My particular focus is on the role of the international community and the impact of international justice mechanisms (or lack thereof) on the peacebuilding process. 8 My argument is that justice and reconciliation are fundamentally significant goals that need to be addressed in the design of successful post-conflict peacebuilding programs, particularly in the aftermath of genocide.
The Concepts
Justice
The need for justice is a strong motivating force in human life, whether it plays out in violent retribution or the application of legal principles in court. As a concept, it has been accepted as part of political discourse since the “golden age of Athens” (Shriver, 1995, p. 13) and is a central tenet of monotheistic religious doctrine. The definition of justice assumed in Western legal traditions, and thus in the functioning of international war crimes tribunals, is based on the ideas of retribution and restitution. Retribution originally meant a settling of one’s accounts, involving both the punishment of evil and rewarding of good deeds, but has become associated solely with punishment and revenge in common usage in the twentieth century (Borneman, 1997, p. viii). Retributive justice thus deals primarily with responding to moral injuries or wrongs with “punishment to fit the crime”. Restitution, meaning the recovery of losses or compensation to rectify harms, is commonly associated with legal justice. It generally takes the form of a financial payment made to the victim either by the offender or by the state. As argued by Zehr (1995, p. 193), both retribution and restitution have symbolic value and are concerned with “righting an imbalance”.
Many traditional societies take a more restorative approach to justice in which the emphasis is placed on restoring relationships between the parties in a conflict rather than inflicting punishment. 9 Restoration of relationships as well as restitution (‘making things right’) are also the focus of biblical justice according to Christian theology. Restorative justice is based on recognition of the humanity of both offender and victim and the goal is to heal the wounds of every person affected by the conflict or offence (Consedine, 1995). Options are explored that focus on repairing the damage and thus the concept of restitution also plays a role in the implementation of restorative justice. There is a growing trend of applying the models of restorative justice in Western societies to complement the legal justice system. 10 According to Zehr (1995, p. 11), “We need to discover a philosophy that moves from punishment to reconciliation, from vengeance against offenders to healing for victims, from alienation and harshness to community and wholeness, from negativity and destructiveness to healing, forgiveness and mercy. That philosophical basis is restorative justice.”
In addition to the categories of retributive, restitutive and restorative justice, other terms which may be used to describe different aspects of justice include distributive or economic justice; procedural justice; corrective justice; social justice, and symbolic justice. These categories tend to overlap and interact, and any particular individual may value one type of justice over another at different times and in different circumstances. Peacebuilding programs need to take this into account in addressing the justice needs of the population.
Forgiveness
“Forgiveness is not, of course, a substitute for justice. Forgiveness is a gift, not something we earn, but to know the reality of forgiveness we must be ready to turn our backs on the things we have done which required us to seek forgiveness in the first place. Justice and forgiveness are related this way. To claim forgiveness while perpetuating injustice is to live a fiction; to fight for justice without also being prepared to offer forgiveness is to render your struggle null and void. Justice is not only about what is due to a human being; it is also about establishing right relationships between human beings.” (Kenneth Kaunda, first president of Zambia, quoted in Augsburger, 1992, p. 277). By linking the concepts of justice and forgiveness in this complementary way, Kaunda is implying a definition of justice which is restorative rather than retributive.
A religious concept originally, forgiveness has been adopted in various forms of secular thinking (philosophical and psychological) but has only recently started to gain some legitimacy in the political arena. Frost (1991) and Shriver (1995) have argued from a Christian perspective for the importance of forgiveness in social and political life. According to Frost, the relationship between forgiveness and justice is the vital concept to consider “for much political action is based on the sense of an injustice which needs reversing” (p. 3). Frost raises the important question of the relevance of religious orientation or beliefs to the use of forgiveness in politics: “is forgiveness part of human experience and wisdom regardless of what faith politicians profess?” (p. 5). His survey of the relationship between individual and group forgiveness in different cultural contexts suggests there is a “thread of forgiveness” running through even the most violent regions. For example, Kaunda believes Africans show a particular preparedness to forgive, and he refers to the “spirit of forgiveness” which he sees in African leaders (Frost, 1991, p. 162).
In the past few years, it has become very popular for political leaders or religious leaders to apologise on behalf of the populations they represent for the abuse of human rights of other populations (Woodley, 1997). For example, on 16 March 1998 the Roman Catholic Church formally apologised for failing to take more decisive action in challenging the Nazi regime to stop the extermination of the Jews during World War II. 11 Other examples include the Queen of England’s apology to the Maoris of New Zealand for the confiscation of their land by 19th century British settlers; US President Bill Clinton’s apology to black Americans used as guinea pigs testing the long-term effects of syphillis; and Japan’s apology for its wartime atrocities and role as the aggressor in World War II. The implication is that forgiveness is being sought from the victimised population in a quest for reconciliation and avoidance of continuing cycles of violence and retribution: “without forgiveness, hurts go unchecked and we recycle failures, resentment, bitterness, and mistrust in our lives ... Without forgiveness, there can be no real peace and no lasting reconciliation” (Donnelly, 1982, quoted in Frost, 1991, p. 1).
Forgiveness does not imply forgetting; it is not about ‘giving up’, ‘turning the other cheek’ or ‘letting the other off the hook’. Forgiveness is a “self-realization that allows one to develop a sense of compassion”; it allows for a ‘civil’ relationship and can be seen metaphorically as overcoming a ‘point of view’ (Murphy & Hampton, 1988, p. 37, quoted in Johnston, 1995, p. 10). According to Borris (1997), forgiveness is a complex act of consciousness which “liberates the psyche and soul from the need for personal revenge” and “empowers us and releases us from feeling victimized” (p. 2). Forgiveness is a process, not an instantaneous event (Kraybill in IMTD, 1995). As Volkan (1994) and others have emphasised, forgiveness follows after a period of mourning and healing, and is an internal process which does not necessarily rely on the contrition of the one being forgiven. There is certainly a role for acknowledgement, apology and acts of contrition in facilitating forgiveness, but one does not need to precede the other. Both are, however, necessary components of a process of reconciliation. According to Montville (1993, p. 112), “forgiveness is a key element in peacemaking”; Mofid (1995, p. 2) maintains that “forgiveness is the essence of peace”.
Reconciliation
The concept of reconciliation also had its origins in religion and only recently has the term found its way into political discourse. In fact, reconciliation has become a popular political buzzword in the 1990s. For example, in Australia a National Reconciliation Convention was held in May 1997 and a People’s Movement for Reconciliation has emerged in the quest for better relations between the indigenous Aborigines and the rest of the population. The 1998 Federal election promise on reconciliation has resulted in the government’s appointment of a Minister for Reconciliation whose responsibilities include the production of a Charter of Reconciliation 12 .
Unlike forgiveness (which may or may not involve the other party), reconciliation requires the involvement of two or more parties in coming together. “Healing and reconciliation in violent ethnic and religious conflicts depend on a process of transactional contrition and forgiveness between aggressor and victims which is indispensable to the establishment of a new relationship based on mutual acceptance and reasonable trust. This process depends on joint analysis of the history of the conflict, recognition of injustices and resulting historic wounds, and acceptance of moral responsibility where due.” (Montville, 1993, p. 112). According to Kraybill (in IMTD, 1995), reconciliation needs a commitment to apology, risk and willingness to trust the other. “Reconciliation requires an acknowledgement of wrongs committed and a re-evaluation by their perpetrators of the morality which lay behind them.” (Asmal, Asmal & Roberts, 1996, p. 47).
The concept of reconciliation is a very important theme in Christian theology. The term reconciliation is derived from the Latin root word, ‘conciliatus’, which means to come together, to assemble ... Reconciliation refers to the act by which people who have been apart and split-off from one another begin to stroll or march together again. Essentially, reconciliation means the restoration of broken relationships or the coming together of those who have been alienated and separated from each other by conflict to create a community again. Reconciliation is conflict resolution, but ... it has greater dimensions and more profound implications. (Assefa, 1993, p. 9).
A crucial element in the reconciliation process is an ending of the cycle of accusation, denial and counter-accusation (and counter-denial). According to Mitchell (1996, p. 14), reconciliation involves the replacement of “the whole ‘culture of revenge’ and reprisal with a different ethic that emphasises both responsibility on the one side and acceptance (if not forgiveness) on the other”. The history-taking component of psychodynamic problem-solving workshops 13 , or the production of an agreed historical account of each side’s chosen traumas as part of a truth commission or other commission of inquiry, can contribute to the overcoming of this cycle of accusation and denial. Mitchell (1996) proposes the following five stage process of conflict resolution, culminating in reconciliation:
According to a study by the International Peace Academy and the Organization of African Unity (1996, p. 17), “reconciliation and rebuilding are long-term processes, and intrinsically involve healing of individuals, communities and entire societies”. The report identifies the following as some key elements of reconciliation:
Reconciliation may thus be seen as an integral part of the peacebuilding process. Brecke & Long (1997, p. 1), for example, describe reconciliation as a “returning to peace, harmony, or amicable relations after a conflict ... integral to mitigating future violence and maintaining societal stability”. And according to Colletta, Kostner & Wiederhofer (1996, p. 75), reconciliation involves “bringing people to have faith again in civil institutions, in justice and in the rule of law. In the final analysis, lasting reconciliation must be built on forgiveness.”
The question remains, is it appropriate to talk about forgiveness and reconciliation in the context of genocide? I would argue that in this extreme case, forgiveness and reconciliation are most important. I am not saying it is easy, but that it is essential in the long-term if the survivors and perpetrators are ever to come to terms with what they have suffered or done. The individual who does not forgive, and the group that does not forgive, will always be a victim of their feelings of revenge or guilt. Not only will they not be at peace with the other, they will not be at peace with themselves. At a psychological level, they will remain open to encouragement or manipulation by political or military leaders to wreak revenge on the other group. My argument is that cycles of violence can only be short-circuited if a process of reconciliation is entered into. Only by recognising the sufferings and understanding the motives of the other group, can a survivor of genocide ever live together in peace with members of the group that perpetrated the genocide. Similarly, only by acknowledging and expressing contrition for the crimes they have committed and the suffering they have caused can perpetrators ever hope to live together with members of the victim group.
All this does not mean that reconciliation should be equated with a culture of impunity or that perpetrators of genocide should not be punished under international law. Processes of legal justice and reconciliation need to go hand in hand and not be seen as alternatives. Reconciliation implies the acknowledgement of wrongs committed. Compassion towards the perpetrator should not be equated with condoning the crimes committed. Without justice, forgiveness can perpetuate impunity. Individual perpetrators, and particularly the leaders and organisers, should be held accountable. Criminal trials for the key perpetrators provide a sense of retributive and symbolic justice, while a public acknowledgement and reconciliation process can heal the relationship between the victim and perpetrator groups.
Accountability Mechanisms
Skills training, exploration of competing victimhoods, or forums to address larger institutional injustices need to be entered into through structured mechanisms that can help to foster peacebuilding. (McFarland, reporting on IMTD’s “Consultation on Reconciliation”, 1995).
Transitional justice or accountability mechanisms may be locally driven, or be supported or instigated by the international community, including the UN and its various agencies, governments and universities, international lawyers and international NGOs. In cases of genocide, war crimes and crimes against humanity, the international community may be obliged to establish mechanisms to implement prosecution under international law if the state in question is unable or unwilling to do so.
International Criminal Tribunals & Domestic Prosecutions
The process of criminal accountability can provide victims/survivors with a sense of justice and catharsis; a public record of historical facts and the illegality of human rights abuses; a new faith in judicial systems and legal accountability; and the establishment of individual guilt and concomitant rejection of a culture of collective guilt and retribution (Kritz, 1997). However, the application of criminal law in the aftermath of violent conflicts is fraught with difficulties and especially susceptible to promoting a culture of impunity. In the interest of maintaining a fragile peace agreement, amnesty may be granted to political leaders, and the arrest and prosecution of war criminals may be seen as selective or biased. If people do not develop a faith and trust in the legal justice system, they are more likely to resort to violent retribution again in the future, and deterrence of would-be perpetrators will be undermined.
Advantages of international tribunals include the message that the international community will not tolerate such abuses of human rights; there is a greater chance of expert staffing and availability of sufficient resources; there is more likely to be a perception of independence and impartiality; there is an opportunity to advance the development and enforcement of international criminal norms; and there is a greater chance of obtaining physical custody and extradition of indicted war criminals (Kritz, 1997, p. 4). Some problems of international tribunals may include the physical distance of the court from the affected population (as with the Rwanda tribunal based in Arusha, Tanzania) and the difficulties of ensuring the dissemination of unbiased reports of proceedings to the local population (e.g. via the media).
Domestic prosecutions have the advantages of potentially enhancing the legitimacy and credibility of the new government; providing a focus for rebuilding the domestic judiciary and criminal justice system; being closer to the people and being potentially more sensitive to the nuances of local culture; and being able to cope with larger numbers of lower level perpetrators compared with the selective and restricted capacity of an international tribunal (Kritz, 1997, p. 6).
As can be seen in Rwanda in relation to both domestic and international prosecutions, there is still a danger of retribution in the form of violence towards witnesses and released prisoners who are either not brought to trial or granted amnesty or shorter sentences after confessing. It is clear that the holding of trials is not in itself sufficient to produce a sense of justice and a process of reconciliation — other mechanisms are also necessary, as well as the conscious incorporation of the goals of achieving justice and reconciliation into the strategy of prosecution (Kritz, 1997, p. 8). Otherwise the trials may be seen as just another means of continuing the conflict, with a biased focus on arresting and prosecuting perpetrators only on one side, and a fuelling of the desire for violent retribution in the absence of legal justice. Similarly, the absence of credible enforcement and arrest of indicted war criminals, and the absence of unbiased media coverage of the legal proceedings, may undermine the process of justice as a means to reconciliation (Kritz, 1997, p. 10). On the other hand, effective co-operation and communication between international and domestic accountability mechanisms can assist the ability of both to address the justice needs of the local population.
Legal solutions are also limited in their ability to promote reconciliation because of their reliance on an adversarial approach to dispute settlement. The emphasis is on the accused avoiding any admission of guilt in order to avoid conviction and punishment. Apology and forgiveness are not encouraged in the Western legal tradition which is based on the models of retributive and restitutive justice, rather than on the model of restorative justice.
Truth Commissions
Truth Commissions establish a full, official accounting of the ‘truth’ of past abuses and provide an opportunity for reconciliation between perpetrators and victims. They can provide an important healing function as victims/survivors are able to tell their stories and to be heard, thus creating a cathartic public airing and acknowledgement of their loss and suffering. Truth commissions also provide a historical record which may be perceived domestically and internationally as legitimate and impartial, and they may also provide the formal basis for subsequent compensation of victims. Truth commissions cover not only individual cases of abuse but also reveal the broader context and government structures that enabled the pattern of violations to occur, and may recommend measures to deal with past abuses and avoid their repetition. (Kritz, 1997, pp. 14-17) Truth commissions provide a form of restorative justice, as well as the potential for restitution, but cannot in themselves provide a sense of retributive justice. Truth commissions are most appropriate when the ‘truth’ regarding human rights abuses has been hidden or denied, as in South Africa.
Hayner’s definition of a truth commission has four primary elements (1996, p. 20):
The South African Truth and Reconciliation Commission (TRC) is the most well-known, but there have been a number of variations of commissions of inquiry or truth commissions in 16 countries mostly in Africa and Latin America (also one in The Philippines and one in Germany) over the past 24 years. 14 Each ‘truth commission’ is unique in form, structure and mandate, and they vary in their formal title. Hayner’s review provides a comprehensive account of these commissions and their varying degrees of success in promoting reconciliation (Hayner, 1994).
Of course, war crimes tribunals and truth commissions should not be seen as mutually exclusive. They may indeed complement each other (Hayner, 1997). For example, a truth commission may be established more quickly and begin collecting evidence which may later be used in criminal prosecutions (e.g. Argentina in 1983, Kritz, 1997, p. 16). In South Africa, perpetrators who fail to confess and seek amnesty from the TRC may be prosecuted by the domestic courts. In Bosnia, three separate war crimes commissions (Bosnian, Serb and Croat) are co-operating to form a single Bosnia-wide truth commission to complement the work of the International Criminal Tribunal for the Former Yugoslavia established in 1994 (Kritz, 1997, p. 17).
Cambodia
History of the Conflict
Cambodia was a French protectorate and then colony between 1863 and 1953, becoming an independent country again in 1954. Civil war erupted in 1968, a US-backed government ruled from 1970-75 (Khmer Republic), followed by the brutal Khmer Rouge regime led by Pol Pot (Democratic Kampuchea), until the Vietnamese invasion in 1979 and the installation of the Hun Sen government (People’s Republic of Kampuchea). UN-sponsored peace negotiations from 1988-91 resulted in the Paris Peace Accord of October 1991 and elections in May 1993, and the coalition government with Prince Ranariddh and Hun Sen as co-prime ministers. The name change to the State of Cambodia occurred in 1989.
The Pol Pot regime was reportedly responsible for the deaths of an estimated 1-2 million Cambodians (approximately 25% of the population) in three years, although at least one commentator (Vickery quoted in Kiernan, 1997, p. 192) says the statistical evidence indicates the number killed was more likely between 500,000 and 1 million. Either way, the extent of human rights violations during the Pol Pot era has been described as the worst to have occurred anywhere in the world since Nazism (Chanda, 1986) 15 . As described by Kiernan (1997, p. 191): “During the Pol Pot period, from April 1975 to January 1979, Cambodia was subjected to what was likely the world’s most radical political, social, and economic revolution. The country was cut off from the outside world; foreign and minority languages were banned; its cities were emptied; and all its neighboring countries were attacked militarily. Schools and hospitals were closed, and the labor force was conscripted. The economy was militarized, and the nation’s currency, wages, and markets were abolished. Many of Cambodia’s families were separated; its majority Buddhist religion, along with other religions and folk cultures, were destroyed; and 1.5 million of its nearly eight million people were starved to death or massacred.”
The systematic and carefully planned regime of terror, torture, hard labour and starvation was aimed at establishing a racially pure and independent Khmer state, and has been generally thought of as a politically motivated mass killing as the victims were characterised as political opponents. Strictly speaking, this does not qualify as genocide according to the definition in the Genocide Convention, although the term ‘auto-genocide’ has been used to describe what happened. However, Montville (1990) and others have argued that the Khmer Rouge goal of cleansing the Cambodian people and economy of any foreign presence was racially motivated and essentially anti-Vietnamese. Montville (1990) applies a psychodynamic analysis to the Khmer Rouge regime of terror and concludes that the source of the extreme violence could be traced to the Khmer experience of victimhood at the hands of outside aggressors, and especially the Vietnamese. Added to this was the more recent experience of being bombed by the US as part of its military campaign against Vietnam. 16 Historically, the Khmer people had not experienced independence and a sense of self-worth as a people since the Angkor era between the 9 th
and 15th centuries; they were alternately invaded and controlled by Siam/Thailand and Vietnam until the French occupation during which time the Vietnamese were recruited even for the lowest level positions. It seems that the extent of hatred of the Vietnamese and mission of purity extolled by Pol Pot and the Khmer Rouge indicates an identity-based or ethnic motive, rather than simply political ideology, as the source of inspiration for the killing spree. Thus it could be argued that what happened in Cambodia between 1975-78 was genocide according to the definition in the Convention, and certainly should be regarded as genocide under the broader definition proposed earlier in this paper.
Responding to Genocide
There have been no significant or effective official public processes of acknowledgement, apology or legal justice implemented in Cambodia, despite the numerous initiatives proposed by the international community and Cambodian government. Etcheson (1997) provides a thorough analysis of the various attempts at redress or justice over the past two decades, including domestic prosecutions in 1980-82 and 1995-97; two outsider attempts to take a case against the Khmer Rouge to the International Court of Justice in the mid 1980s; US attempts to impose immigration and travel restrictions in 1992; both domestic and US-based financial penalties proposed in 1992-93; a planned civil action in a US court in 1993; a Cambodian lustration law adopted in 1994; the US Cambodian Genocide Justice Act also adopted in 1994; and efforts to establish a truth commission in 1996-97. The PRK government did hold a trial of KR leaders, Pol Pot and Ieng Sary, in Phnom Penh in August 1979, but the sentence (of death in absentia) was not recognised internationally because of due process objections to the trial procedures and the diplomatic isolation of the PRK regime (Vickery & Roht-Arriaza, 1995, p. 246).
During peace negotiations, the Hun Sen government apparently stressed the issue of genocide and the need to bring the perpetrators to justice, but this was blocked by the Khmer Rouge supported by the US and China. Indonesia and France, co-chairs of the Paris Peace Conference in 1991, accepted Phnom Penh’s proposal that the final agreement include provisions that the new constitution would be consistent with the provisions of the UN Genocide Convention, but this was vetoed by the Permanent Five of the UN Security Council. The final peace agreement did not preclude the KR from participating in the elections, nor did it prevent former officials of the KR associated with the genocide from holding office in the future.
Since early 1997, the UN Special Representative of the Secretary-General has been focussed on trying to establish an international criminal tribunal for the Khmer Rouge. He obtained support from the co-prime ministers, Prince Norodom Ranariddh and Hun Sen, in June 1997 and the Secretary-General, Kofi Annan, issued the unprecedented ruling that either the UN Security Council (UNSC) or General Assembly (UNGA) could establish an ad hoc tribunal. US Secretary of State, Madeleine Albright, told reporters that the US was committed to bringing Pol Pot to justice, but efforts foundered in trying to find a country willing and legally able to hold and possibly try Pol Pot 17 , and then in July Prince Ranariddh confirmed an alliance agreement between the Royalists and the Khmer Rouge. The subsequent renewal of violence and terror slowed down the momentum for an international tribunal, although both Ranariddh and Hun Sen (now also in alliance with a faction of the Khmer Rouge) both publicly reiterated their endorsement of an international tribunal for the Khmer Rouge genocide. 18 (Etcheson, 1997). However, Prince Ranariddh was ousted by Hun Sen in a violent defacto coup in July 1997 thus effectively erasing the results of the 1993 UN-supervised elections and undermining the Paris Peace Agreement 19 (Plunkett, 1998, p. 66).
US officials have continued to reiterate their commitment to bringing senior Khmer Rouge leaders to justice, despite the death of Pol Pot in April 1998. Late in 1998 a UN mission visited Cambodia to assess the scope for an international genocide tribunal, and the UN General Assembly was expected to pass a resolution to establish such a tribunal to hear charges against the surviving KR leaders before the end of the year. 20 Hun Sen reportedly told the UN delegation that it would be easier if such a tribunal were to be set up in Cambodia under Cambodian law with international assistance. 21 However, any attempts to uncover and punish the crimes of the KR are complicated by the number of KR defectors who have joined the Cambodian security forces, some occupying senior positions. Two of the last three remaining senior KR leaders defected in late December 1998 in return for amnesty from the Cambodian government, but this does not guarantee their immunity from prosecution by an international tribunal.
Human rights groups and many Cambodians reportedly responded with anger and dismay at the possibility that the KR leaders might never be brought to justice. 22 In a recent development, Cambodian Prime Minister Hun Sen (himself a Khmer Rouge defector) said in a letter to the UN Secretary-General that Cambodia was seeking an international tribunal that would guarantee justice for the Cambodian people by going beyond the crimes against humanity committed by the KR to include crimes by the US (for the bombing of Cambodia in 1969) and other foreign powers (who supported KR rebels after the overthrow of Pol Pot). 23 In the meantime, former KR leaders have continued to respond to calls for justice with threats of renewed civil war.
Etcheson (1997, p. 10) lists the reasons for the failure to end Khmer Rouge impunity as including disputes over the various Cambodian regimes; irregularities in the various legal proceedings; lack of institutionalized accountability mechanisms; failure to obtain custody of the accused; failure to obtain jurisdiction over the accused; capricious selection of persons to be prosecuted; considerations of ‘national reconciliation’; financial corruption; superpower politics; regional politics; domestic politics; and a general lack of political will. It seems the local Cambodian people required the assistance of the international community to implement justice, but this was not forthcoming because of the Cold War and its legacy. The Cambodian Genocide Program (based at Yale University and supported by governments and NGOs internationally) is belatedly producing a thorough documentation of the genocide, researching the conflict, and undertaking training of Cambodian judges, lawyers, police and human rights activists so they can participate effectively in achieving accountability of the Khmer Rouge (Etcheson, 1997, p. 11) However, the vicissitudes of Cambodian politics and continuation of structural conflict and violence are mitigating against fulfilment of the accountability mission of the CGP, although the experience of documenting and publicising the details of the KR atrocities is reportedly helping the process of reconciliation amongst the Cambodian people. 24
There are a number of small-scale, non-government projects to promote reconciliation in Cambodia, including Thai and Cambodian Buddhist monks organising peace marches and assisting to revitalise wats and Buddhist temples (Colletta et al, 1996). Also, non-official investigations and documentation of the genocide have provided some form of acknowledgement of people’s sufferings and hopefully a valuable healing opportunity.
The policy of impunity for perpetrators of genocide, and the inclusion of the Khmer Rouge in the political process, have arguably not aided the reconciliation process and have certainly not produced a lasting peace in Cambodia. The lack of firmness of the UN Transitional Authority in Cambodia (UNTAC) with the Khmer Rouge seemed to reduce the compliance of the new Cambodian government with the terms of the peace agreement, especially in relation to the implementation of human rights protection (Vickery & Roht-Arriaza, 1995). After withdrawing from the peace process, the Khmer Rouge have until recently continued to terrorise Cambodians, ethnic Vietnamese and foreign workers in the Cambodian countryside. There are continuing reports of government human rights abuses in Cambodia: prison conditions remain poor, arbitrary arrest is a problem, detainees have been tortured and killed, and the legal system is marred by inefficiency, lack of training and resources, and corruption (United States, Department of State, 1997). Government violence continues, human rights protection mechanisms are ineffective, the government is unstable, no compensation has been provided for the victims of the Pol Pot era, and the Khmer Rouge leaders have not been held accountable. In short, no sense of justice has been achieved for the Cambodian people. There was a peace settlement, but the conflict has not been resolved.
Rwanda
History of the Conflict
The pre-colonial history of Rwanda reveals a succession of inter-clan fighting and expansion of a dominant ruling class over a bonded labour class not unlike the British feudal system. Indistinguishable in terms of language and religion, but identifiable by their different physical appearance and occupational ties, the predominantly cattle-owning Tutsis achieved political domination over the majority Hutu agriculturalist population during the 15th – 19th centuries. However, this relationship was by all accounts more symbiotic than exploitative, and the categories of Tutsi and Hutu were treated as interchangeable according to a person’s status rather than being seen as a fixed ethnic identity. Intermarriages were common. The inter-ethnic hatred and cycles of violence and revenge between the two groups that we see today did not begin until the end of the colonial era.
Rwanda was colonised by Germany in 1885 but following World War I the colony became a trustee territory of Belgium. As in other parts of the world, these colonial powers followed the strategy of “divide and rule”, reinforcing the division between Tutsi and Hutu. For the first time, identity cards were issued, so that the formerly fluid ethnic categories of Hutu and Tutsi became fixed. The Belgians used the Tutsi as the administrators of their harsh policies and the Hutu became increasingly resentful — not of their colonial masters, but of the Tutsi monarchical system. The Hutus, encouraged by the Belgians in a policy turnaround, rebelled and following a bloody civil war Rwanda achieved its independence and became a republic under Hutu leadership in 1962.
An estimated 200,000 Tutsis fled the country and became refugees in Uganda, Zaire, Tanzania and Burundi. The Hutu government maintained the ethnic identity system instituted by the Belgians and initiated a policy of discrimination against the minority Tutsi population in retaliation for the years of subjugation under Belgian/Tutsi rule. The Tutsis of the diaspora tried on several occasions to return by force, but the Hutu government responded with periodic anti-Tutsi pogroms, a purge of Tutsis from universities, and a quota placed on Tutsis employed in civil service and teaching posts. In 1988 the Tutsi exiles and Hutu dissidents formed the Rwandan Patriotic Front (RPF) which launched several attacks on Rwanda between 1990 and 1993. The Hutu government conducted periodic massacres of Tutsis in Rwanda in retaliation for the RPF invasions. During this period of discrimination, violence and exile the ethnic identities of Hutu and Tutsi and cycles of revenge became entrenched.
The international community supported the incumbent Hutu government against what were perceived as invading rebel forces. A succession of ceasefire agreements and peace talks in July 1992 and March 1993 finally culminated in the Arusha Peace Agreement signed in August 1993. But in April 1994 the presidents of Rwanda and Burundi were killed in a plane crash outside Kigali, triggering the onset of the mass killings by Hutu extremists of Tutsis and moderate Hutus perceived as their political enemies. The downing of the plane carrying Hutu President Habyarimana and the subsequent genocide appear to have been orchestrated by Hutu extremists determined to stop the power-sharing agreement about to be implemented by Habyarimana, as well as to eliminate the Tutsis from Rwanda once-and-for-all. The international community failed to intervene despite evidence of planned genocide, and the United Nations withdrew its peacekeeping force. The French government continued to support the Hutu government despite the rising evidence of genocide.
After three months of terror and violence in which thousands of women were raped and between 500,000 and 1 million people were killed, the RPF installed a new Tutsi-led government in July 1994. As the RPF advanced into Rwanda, thousands of Hutu refugees (including the genocide perpetrators) fled to neighbouring Congo (former Zaire) and Tanzania, but most have since been repatriated. After 30 years of exile, most Tutsi refugees have also returned to their home country following the RPF victory, adding to the population pressures on this very small and very poor country.
The new Rwandan government comprises both Hutus and Tutsis and its stated policy is one of inclusiveness, to the point that ethnic categories are no longer officially recognised. The stated aim of the government is to promote peaceful coexistence, but the fear of some is that denying ethnic differences may lead to greater violence in the future as a result of repressed ethnic tensions. Furthermore, the Tutsis retain effective control and occupy most of the key positions in the country, adding to the alienation and resentment felt by the Hutu population (Prunier, 1997). The government’s policy of achieving justice for the victims of the genocide is also seen as potentially divisive as thousands of prisoners, mostly Hutus, are held in terrible jail conditions, given unfair trials and executed.
Responding to Genocide
A Rwandan law was passed in August 1996 authorising prosecution of crimes committed during the genocide. From the government’s perspective, the detention and trial of perpetrators of the genocide is an important step towards ending the culture of impunity prevailing in Rwanda. They see it as an integral part of the reconciliation process. 25 This attitude was reflected by the Tutsi survivors and returnees whom I interviewed in Kigali. 26 While some may not agree with the Rwandan government’s decision to hold the executions in public, there is a general feeling that justice demands that the perpetrators of the genocide receive the death penalty. The executions were generally welcomed by the Tutsi population and by some Hutus who could begin to dissociate themselves from the feeling of group guilt as individual perpetrators are found guilty and punished.
Observers tend to agree that legal justice is crucial to the peacebuilding process in Rwanda, but there are huge logistical problems in prosecuting all those accused. Rwanda’s jails are overflowing with some 120,000 detainees of whom about 2000 are designated as ‘Category 1’. 27 At least 330 of the accused have been tried and 116 had been sentenced to death as at October 1998. The first 22 convicted were executed in April 1998. Some 95% of Rwanda’s lawyers and judges were either killed or are in exile or in prison, making it very difficult for the criminal justice system to cope with the huge numbers of accused. In October 1998 the Rwandan government released 10,000 suspects, sparking fears of revenge killings, as reportedly occurred when some 1500 detainees were released in 1997. In addition, the failure of the Rwandan government to prosecute RPF officers for massacres and other human rights abuses perpetrated during the invasion and subsequent years since the RPF has been in power, is leading to the perception of “victor’s justice” and criticism from both the Hutu population and the international community (Prunier, 1997).
Parallel international trials are underway in Arusha, Tanzania, under the auspices of the International Criminal Tribunal for Rwanda (ICTR). The ICTR was established in November 1994 to prosecute war crimes, crimes against humanity and crimes of genocide committed in Rwanda during 1994. Its focus is on prosecuting the leaders and planners of the genocide but, unlike the domestic judicial system, does not have a mandate to impose the death penalty. After a slow start plagued with administrative difficulties and corruption, the ICTR has made significant progress and as at February 1999 had obtained custody of 29 of the 35 individuals indicted, including the former Prime Minister, Jean Kambanda, as well as another five suspects. On 1 May 1998 Kambanda became the first person to accept culpability for genocide before an international court, and his conviction on 2 September 1998 was the first ever for genocide. However, the lack of death penalty and the slow pace of trials have been a focus of criticism by the Rwandan government and have significantly undermined the perception that justice is being done. After nearly four years, the first two trials were completed and the judgements announced in September 1998. After pleading guilty, Kambanda was sentenced to life imprisonment and Jean-Paul Akayesu, a former village mayor, begged for forgiveness and a light sentence but was ordered to serve three life sentences for genocide plus 80 years for other violations, including rape. A further three trials were underway in early 1999 and in February a former Rwandan militia leader, Omar Serushago, was sentenced to 15 years in prison for crimes against humanity after pleading guilty and apologising to the people of Rwanda for his role in the genocide.
There has been much criticism of both international and national attempts at achieving justice for the Rwandan people; while the latter are being conducted primarily by one ethnic group and without adequate witness protection, the former has been under-resourced and under-staffed, and in both cases the trials have been proceeding very slowly. 28 Nevertheless, the International Tribunal does have an important role to play in enforcing international law, demonstrating equitable treatment of both sides in the conflict, and hopefully providing some deterrence to future potential war criminals. Rwandans have criticised the ICTR’s inability to impose the death penalty on some of the alleged ringleaders of the genocide, and have said it would be better if the ICTR were disbanded and the money used for rehabilitation schemes (UN DHA IRIN, 7 March 1997). Gerald Gahima, Secretary-General of Rwanda’s Ministry of Justice, expressed resentment at the ICTR’s US$50 million annual budget: “If we received a twentieth of that, we would have gone a long way toward solving our problems [with bringing to trial the 120,000 genocide suspects being held in local jails]”. 29 While the progress of trials may appear to be painfully slow, the fact that many key perpetrators of the genocide have been arrested is a significant breakthrough in achieving accountability under international law and may in time contribute to peacebuilding and reconciliation in Rwanda. In the short term though, it does seem that the ICTR is doing more to assuage the guilt of the international community for not intervening earlier to stop the genocide than it is to promote a sense of justice for the Rwandan people.
The thirst for vengeance in Rwanda is understandable . . . The elimination of impunity is essential to ensure that the cycle of genocide is broken in Rwanda. National reconciliation will only be brought about when justice is seen to be done . . . While doubting the main architects of the genocide feel any remorse for their actions, many Tutsis accept that they have to live side by side with their Hutu neighbours again, despite feelings of suspicion and mistrust. The tentative steps towards national reconciliation and rehabilitation must be respected and sensitively handled. (UN DHA IRIN, 7 March 1997)
The establishment of the ICTR was specifically intended to help overcome the ‘culture of impunity’ evident in Rwandan society and thereby to promote reconciliation and peacebuilding (Akhavan, 1996, p. 265). The UNSC stated its aim as, in part, “to contribute to the process of national reconciliation and to the restoration and maintenance of peace” (quoted in Kumar, 1997, p. 70). The location of the ICTR in Arusha is less likely to promote reconciliation because of the difficulty in communicating the proceedings of the tribunal to the local population. The proceedings of the ICTR are seen as distant and irrelevant to most Rwandans, and although there is some recognition that only the ICTR could have arrested the so-called ‘big fish’ who had fled the country, there is also a perception that the accused are being held in comparative luxury. Even though Kambanda pleaded guilty to genocide and other crimes at his initial hearing in May 1998, it is feared that the punishment meted out by the ICTR of life imprisonment in some comfortable Western jail will not be enough to satisfy the Rwandan people in their call for justice. According to Kumar (1997, p. 70), there is a need to address the public perception of the tribunal’s deficiencies before it can contribute to the process of justice and reconciliation. In October 1998 a delegation of the Rwandan National Assembly visited the ICTR in Arusha and were reportedly impressed by the effectiveness and efficiency of the ICTR. It is hoped this visit may help to create a more positive experience of the ICTR for the Rwandan people.
The ICTR has taken a number of steps in the past two years to improve its administrative capacity in response to criticisms. A significant area of improvement has been the ICTR’s capacity to investigate crimes committed against women during the genocide, including the formation of a Sexual Assault Team in the Office of the Prosecutor based in Kigali, the recruitment of female investigators, and the appointment in July 1997 (two years after the tribunal began operations) of an Advisor on Gender Issues & Assistance to Victims whose mandate includes the fostering of restitutive justice and national reconciliation in Rwanda. After the first trial began the indictment was amended to include charges of rape as part of the counts of genocide and crimes against humanity, and charges of sexual violence have been included in subsequent indictments.
For most of the women survivors of genocide in Rwanda, however, criminal justice seems a distant and irrelevant goal. Their needs are immediate and urgent - for health care and medicines, clothing, food for their children, housing, and for counselling to help them to deal with the trauma of being raped. The UN High Commissioner for Refugees (UNHCR) is caring only for refugees in camps; the survivors of rape are interspersed throughout the community and are not receiving material assistance from the UN. The ICTR is based in Arusha - a long way from their homes and family. What incentive is there for them to spend their precious time and resources visiting the prosecutor's office in Kigali or making the journey to Arusha? Women who do make it to Arusha to testify are in need of physical and psychological support. For example, one woman told how she was freezing cold in the courtroom and was having difficulty speaking, but there was no-one available to support her. Another told how she needed antibiotics as she was still suffering painful discharges as a result of the rapes she experienced. What role can and should the ICTR play in supporting these women whom it is using as witnesses? 30
The Advisor on Gender Issues & Assistance to Victims, Francoise Ngendahayo, and others are arguing that the ICTR is obliged to provide physical and psychological support for witnesses under Rule 34 of the tribunal's statute. Rule 34 (as amended as of 6 June 1997) provides that a Victims and Witnesses Unit be established consisting of qualified staff to: "recommend protective measures for victims and witnesses ... ; provide counselling and support for them, in particular in cases of rape and sexual assault ... [and] develop short and long term plans for the protection of witnesses who have testified before the Tribunal ...". A gender sensitive approach is needed as women in Rwanda are denied access to land, for example, so this needs to be considered in the need for reparations and rehabilitation. Also, women may need special assistance to be able to testify if this would not be allowed by their husbands. In terms of counselling and support, the UN could (and should) work with the non-government organisations who are already doing that job. In Arusha, more support is needed in terms of safety and security for the witnesses, for example having more women as safety officers and drivers (instead of Tanzanian soldiers with guns).
I would argue that the international community has a moral obligation to consider and take responsibility for the wellbeing of the women it is using as witnesses. The ICTR was established with the mandate to contribute to justice and reconciliation in Rwanda. One of the keys to reconciliation is the attitude and wellbeing of the survivors. Thus, in order to fulfil its mandate to contribute to reconciliation in Rwanda, the ICTR should seek out as many survivors as possible to interview them as potential witnesses and to provide them with physical and psychological support whether or not they decide to testify. In this way, the survivors will have the opportunity to experience both retributive and restitutive justice, thus decreasing the liklihood that victims will participate in retributive violence against the accused if they are released from the prisons in Rwanda. Only the survivors can forgive. Providing reparations and support mechanisms can be an entry point for the processes necessary for reconciliation.
While the residents of Kigali appear to be getting on with their lives and building a peaceful society, there are obvious tensions beneath the surface which have the potential to emerge especially in response to the continuing violence in northwest Rwanda and neighboring Congo. I would argue that there needs to be some public process of recording the historical experiences and sufferings of both ethnic groups in addition to accountability for genocide and crimes against humanity. What prospects are there for true reconciliation if resentments, hurt and anger remain unexpressed and unacknowledged? In the terminology of Vamik Volkan (1994), each ethnic group has its chosen trauma which is continuing to influence its attitude to the other. According to Volkan (1994) and Montville (1995), the process of enmification and cycles of violence can only be short-circuited if a comprehensive reconciliation process is undertaken in which past losses are mourned and each side expresses contrition and forgiveness of the other.
This process of reconciliation could be assisted by a truth commission modelled on the South African Truth & Reconciliation Commission, but with some important differences. It would not be acceptable to the Rwandan people and the international community to allow amnesties in return for confessions due to the seriousness of the charges. Genocide, war crimes and crimes against humanity are clearly breaches of international law and should not go unpunished. In both the local and international trials the focus is on the perpetrator. One advantage of a truth commission would be the emphasis on hearing and validating the stories of victims and survivors without needing to follow strict legal principles of admissability of evidence. The result could be a report that provides a unified account of the history of Rwanda and the injustices perpetrated against both Hutus and Tutsis. Such a truth commission could exist in parallel with the local and international trials, as is proposed in the former Yugoslavia. 31
To date, attempts to establish a truth commission for Rwanda have not met with any success. Rwandan officials have visited South Africa to examine the workings of the TRC, and it was anticipated that, despite the calls for vengeance, a similar mechanism encouraging confessions from perpetrators in exchange for indemnity from prosecution would be implemented in Rwanda (UN DHA IRIN, 7 March 1997). A non-government project entitled “Conflict Prevention and Justice After Genocide” was also launched by a researcher in the Netherlands with the goal of establishing truth commissions and the holding of public hearings on the genocide in Rwanda (AFB-INFO 2/95). The project sees the basis for reconciliation lying in the application of the principle of justice, but in a way that avoids both impunity and vengeance. 32 While the idea of creating a truth commission in Rwanda does not appear to have taken hold, the Rwandan government has encouraged prisoners to confess in return for reduced sentences, but this applies only to Category 2-4 prisoners (i.e. not those subject to the death penalty). To date, more than 2000 prisoners have reportedly confessed, but there are suspicions that their motives were to avoid punishment rather than reflecting contrition for their crimes. These confessions are thus not expected to do much to further the cause of reconciliation in Rwanda.
On the other hand, one innovation of the Rwandan domestic trials is the requirement for perpetrators who confess their role in the genocide in exchange for lenient treatment to also formally apologise to their victims. The assumption is that victims are more likely to accept lesser punishment if the perpetrators show remorse, thus facilitating the process of national reconciliation. (Kritz, 1997, p. 8) At one of the first domestic trials, the defence lawyer said that the defendant should ask the people’s forgiveness and be spared the death penalty, while the defendant himself told the court “that if his death would help bring about national reconciliation, then so be it” (UN DHA IRIN, 7 March 1997). It has also been claimed that “many Hutus realise that the prosecution and conviction of those responsible for the 1994 genocide is the only way to rid themselves of collective guilt” (Reyntjens, 1997).
It seems that the people of Rwanda are not yet ready or willing to embrace the concept of reconciliation on a large public scale. There are, however, a growing number of reconciliation initiatives being pursued by international and local NGOs on the ground, and there are individual survivors who have forgiven the perpetrators and expressed to me their commitment to reconciliation. On the other hand, there are many other survivors and returnees who are not willing to reconcile; they are hurting and angry because of the betrayal by their friends and neighbours who killed, or have not yet forgiven the Hutus for the years of discrimination and exile. My conclusion was that, at least for now, the best hope for peace in Rwanda lies in time — to heal the wounds and to rebuild trust. The Tutsi survivors need to begin to trust their Hutu neighbours again and the returnees need to overcome their fear of the return of majority Hutu rule, while the Hutus need to dissociate themselves from the guilt of being associated with genocide and to trust that the Tutsis will not take a bloody revenge. It was fear of the Tutsi invaders that enabled the Hutu extremist leaders to manipulate the masses into participating in their genocidal plans. Trust is therefore a key element in preventing a recurrence of such violence. The biggest threat to rebuilding trust is the continuing extremist activity in the northwest and how this is being handled by the Rwandan government.
The future depends on the quality of moderate leadership that is committed to promoting inclusiveness, reconciliation and a comprehensive approach to peacebuilding and justice. As one of my interviewees commented, the mistakes of the previous government in excluding part of the population must not be repeated. Unfortunately, it appears that this policy of exclusion is being repeated (in reverse), although not as blatantly as in the previous government. While maintaining the outward appearance of moderate leadership and inclusiveness, the new government is not including the Hutus in positions of real power and the RPF is covering up, and perhaps continuing to perpetrate, violent reprisals against the Interahamwe and Hutu civilians (Prunier, 1997).
A comprehensive sense of justice could be achieved by including legal justice, social and economic justice, and restorative justice. In other words, there is a need for the perpetrators of genocide to be punished to satisfy the retributive justice desires of the survivors; there is a need for social and economic programs to promote equality, nondiscrimination and poverty reduction; and there is a need for relationship-building, restorative justice programs which promote reconciliation between and within the two ethnic groups. 33 My observation was that such a comprehensive approach to peacebuilding is being implemented in Rwanda, albeit slowly and not without difficulty, and with insufficient attention to the restorative justice component. The government and international community are pursuing legal justice, and there are local and international NGOs involved in such projects as housing reconstruction, microcredit and economic empowerment, trauma healing, reconciliation workshops, joint Hutu/Tutsi activities, prisoner reintegration, health care, education and youth programs. More resources are needed to support these programs. Also lacking is trust and cooperation between the different sectors — government, NGOs and the international community. My interviews suggested that this level of cooperation is improving, but there is still a long way to go, especially in terms of co-ordination and trust.
| Chronology of Rwandan Genocide | ||
| Pre-1885 | Precolonial domination of cattle-owning Tutsi immigrants over majority Hutu agriculturalist population | |
| 1885 | Rwanda becomes part of the German Empire | |
| 1924 | Belgium accepts the mandate of the League of Nations to administer Rwanda and Burundi | |
| 1926 | Belgians introduce a system of ethnic identity cards differentiating Hutus from Tutsis Under Belgian rule Tutsis are favoured and ethnic divisions entrenched |
|
| 1959 | Hutus revolt against the Tutsi nobility and Belgian rule Civil war results in the massacre of 20,000 Tutsis and the exodus of refugees to Uganda, Tanzania, Burundi and Zaire |
|
| 1962 | Rwanda gains independence from Belgium and is led by Hutu nationalist government Further mass exodus of refugees |
|
| 1963 1967 |
Unsuccessful attempts by Tutsis of the diaspora to return by force on two occasions result in anti-Tutsi pogroms | |
| 1973 | Purge of Tutsis from universities, fresh outbreak of killings and refugees General Juvenal Habyarimana seizes power in a bloodless coup and sets up a one-party state Policy of ethnic quotas introduced for all public service employment |
|
| 1988 | Exiled Tutsis and dissident Hutus in Uganda form the Rwandan Patriotic Front (RPF) | |
| 1990 | July | Under pressure from western aid donors, Habyarimana sets up national commission to develop multiparty democracy |
| Oct | RPF launches attack from Uganda, Tutsis arrested and massacred in Rwanda | |
| 1991-92 | Ceasefires signed between Rwandan government and RPF, but massacres continue Habyarimana stalls on development of multiparty system with power-sharing |
|
| 1993 | Feb | Fresh RPF offensive provokes exodus of Hutu refugees |
| Aug | Peace accords signed in Arusha, Habyarimana agrees to power-sharing | |
| Dec | RPF arrives in Kigali Radio Milles Collines begins broadcasting extremist exhortations to attack the Tutsis |
|
| 1994 | April | Habyarimana killed in plane crash and killings begin in Kigali RPF launches major offensive to end genocide and rescue its troops based in Kigali Massive exodus of mainly Hutu refugees to Tanzania, Burundi and Zaire |
| July | RPF captures Kigali and Rwandan army defeated, new government installed Killing of Tutsis continues in refugee camps |
|
Concluding Remarks
In 1995, Roht-Arriaza claimed that: “Ultimately, responsibility to investigate, prosecute, and provide redress will remain largely with each state for the foreseeable future... International actors can help move us closer to the ideal by providing support for governments attempting to overcome impunity, by refusing to recognize or support de facto regimes that overthrow elected governments, and by consistent and steadfast enunciation and application of the applicable legal norms. We owe the victims of mass executions, disappearances, and other crimes no less.” (Roht-Arriaza, 1995, p. 304)
And yet, experience has shown that it is no good relying on governments to bring their own nationals to justice. Most states that have experienced massive human rights abuses over the past fifty years have instituted amnesties for the perpetrators. 34 The Cambodian government, for example, has not made any attempts since 1979 to bring the Khmer Rouge leaders to justice and has bestowed amnesties on all of the senior Khmer Rouge leaders who have surrendered. On the other hand, domestic trials are being held in Rwanda to try the perpetrators of genocide, but under huge logistical constraints and with the appearance of implementing victor’s justice which is undermining the potential impact on reconciliation.
At the same time, respect for state sovereignty, as well as political priorities, have impeded the international community in the implementation of international humanitarian law in response to massive human rights abuses in many internal conflicts over the past 50 years, including Cambodia. The international war crimes tribunals for the former Yugoslavia and Rwanda are the first such tribunals since Nuremberg and Tokyo following World War Two. For the first time, the crime of genocide is being prosecuted, and the Rwandan tribunal represents the first time the international laws of war and crimes against humanity have been applied to an internal conflict. A similar tribunal is again being proposed for Cambodia, but only after Pol Pot has died and most of the other Khmer Rouge leaders have been granted amnesty by the Cambodian government. Finally, after 50 years, an International Criminal Court is being established which should assist in the prosecution and punishment of perpetrators of genocide and other war crimes, perhaps including the Khmer Rouge. The ICC will overcome to some extent the need to rely on the political will of the international community to establish ad hoc tribunals as in the former Yugoslavia and Rwanda, but it will still be limited by state rights and will only be able to pursue cases with the approval of the UN Security Council.
Whether international tribunals, domestic prosecutions or truth commissions, or a combination of these approaches, are the optimum means of achieving justice and reconciliation for peoples devastated by genocide is still a matter for debate and will vary in different cases.
“With the aid of the international community, each society emerging from genocide, war crimes or sustained mass repression will need to find the specific approach or combination of mechanisms which will help it achieve the optimal level of justice and reconciliation.” (Kritz, 1997, p. 23).
It has been argued that reconciliation is a process necessary for psychological healing and the ending of cycles of violence based on ethnic hatreds and resentments. But is this goal too ambitious? Should we just be focussing on providing the political and economic assistance to support peaceful coexistence based on democracy and equitable distribution of resources? It seems that this was not enough in Cambodia to produce a long term peace; the question remains whether ending the culture of impunity in that country may yet contribute to reconciliation. In Rwanda, on the other hand, attempts to end the culture of impunity are being made at both the international and national levels, but their contribution to achieving a sense of justice and reconciliation is being undermined by the slow pace of trials and other problems. While there are strong calls for justice, there is also a clear need for equitable economic development to help overcome one of the root causes of the genocide.
In both Cambodia and Rwanda, no lawyers, judges or legal system remained after the genocide. There was thus a role for the international community in capacity-building, training and possibly bringing in lawyers and judges from other countries to address immediate needs (IPA/OAU, 1996, p. 18). The international community also has a role in facilitating and supporting the establishment of truth commissions and the dissemination of results from these commissions, and in assisting in the establishment of local institutions, structures and culture to promote accountability for human rights abuses and respect for the rule of law (Kritz, 1997, p. 20). There is a potential for the international community to undertake a partnership role in empowering the society victimised by abuse. There should be local ownership of the mechanisms with international technical assistance and monitoring as necessary.
In Cambodia, numerous private and official attempts have been made to bring Pol Pot and the Khmer Rouge leadership to justice, including proposals for an international criminal tribunal, but so far a culture of impunity has prevailed. In Rwanda, by contrast, the perpetrators of genocide are being arrested and prosecuted by both an international criminal tribunal and domestic courts It is too early to assess the impact of the ICTR and local trials on the process of reconciliation in Rwanda, but it is hoped that the greater emphasis on justice and reconciliation in post-genocidal Rwanda will lead to a more stable and peaceful society than that which is evident in Cambodia today.
References
Abdullahi Ahmed An-Na’im & Francis M. Deng (eds), Human Rights in Africa: Cross-Cultural Perspectives, The Brookings Institution, Washington, DC, 1990.
Payam Akhavan, “The Yugoslav Tribunal at a Crossroads: The Dayton Peace Agreement and Beyond”, Human Rights Quarterly, 18:3, August 1996, pp. 259-285.
George J. Andreopoulos (ed.), Genocide: Conceptual and Historical Dimensions, University of Pennsylvania Press, Philadelphia, Pennsylvania, 1997.
Hizkias Assefa, Peace and Reconciliation as a Paradigm, Nairobi Peace Initiative, Nairobi, Kenya, 1993.
Kader Asmal, Louise Asmal & Ronald Suresh Roberts, Reconciliation Through Truth: A Reckoning of Apartheid’s Criminal Governance, David Philip Publishers, Cape Town, 1996.
David W. Augsburger, Conflict Mediation Across Cultures: Pathways and Patterns, Westminster/John Knox Press, Louisville, Kentucky, 1992.
M. Cherif Bassiouni, “Enforcing Human Rights Through International Criminal Law and Through an International Criminal Tribunal”, in Louis Henkin & John Lawrence Hargrove (eds), Human Rights: An Agenda for the Next Century, American Society of International Law, Washington, DC, 1994, pp. 347-82.
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Endnotes
*: A paper presented to the 40th Annual International Studies Association Convention, Washington, D.C., February 16–20, 1999. Back.
Note 1: See Steiner & Alston (1996) for a complete listing and thorough analysis of the international human rights regime. Back.
Note 2: In discussing human rights, one needs to counter the dangers of cultural relativism but still retain the concept of a cultural context for the application of universal human rights standards. It has become increasingly clear that while political leaders may invoke local cultural values to defend the violation of human rights, those who fall victim to such abuse do not generally reject international human rights standards by invoking local cultures (An-Na’im & Deng, 1990). “Concepts of human dignity can be expressed by many terms: social justice, dharma, human rights. The particular form in which the international community, under Western influence, has chosen to express human dignity, however, is the concept of human rights. Despite its Western origin, the concept of human rights must now be recognized as a universal term accepted throughout the world. ... Western influence, dominant in the origin of the development of international human rights norms, is now only one of a number of cultural influences on the development of international human rights standards.” (Leary, 1990, pp. 29-30). Silk (1990) also argues for the importance of accepting the universality of basic human rights, starting with the right to personal security, while Berger (1977) distinguishes the grossest abuses of human rights which receive condemnation from a consensus much wider than Western civilisation. These include genocide, torture, terror, religious persecution and destruction of ethnic institutions. Back.
Note 3: Then UN Secretary-General, Boutros Boutros-Ghali, said the Security Council hesitated to define what was happening in Rwanda as genocide as it may then have been obliged to intervene militarily. In a similar vein, US President Clinton said the international community failed to “immediately call these crimes by their rightful name: genocide”, thus implying that if they had identified it as genocide, they should have taken effective action. (Schabas, 1999, p. 6). Back.
Note 4: The US and the rest of the Cold War alliance treated Vietnam’s invasion of Cambodia as an illegal use of force against a sovereign state, rather than as the legitimate use of force to prevent the continuation of a genocide. The Khmer Rouge, the perpetrators of genocide, meanwhile continued to represent Cambodia in the UN as the Vietnamese-run government was regarded as an illegal occupying force. Back.
Note 5: Accountability or transitional justice mechanisms may include: criminal prosecutions and punishment (legal justice via domestic courts or international tribunals); investigations and acknowledgement of the past (such as fact-finding commissions or truth commissions); civil/non-criminal sanctions (including purges, bans from public office); compensation (such as civil remedies, national reparations); public commemorations, and national lustration (see, for example, Kritz, 1995, pp. xxi-xxvii; Roht-Arriaza, 1995, pp. 282-292). Back.
Note 6: Respect for state sovereignty, the Cold War and political priorities have combined to impede the international community’s implementation of the 1948 Genocide Convention. Back.
Note 7: Although one could observe that the existence of the ICTY has done little to deter the Serbian leaders from continuing violence and alleged perpetration of crimes against humanity in Kosovo. This lack of deterrence may be attributable to the problem of impunity associated with the ICTY as the Prosecutor has failed to obtain custody of key alleged perpetrators who are being protected by Serbia. Back.
Note 8: There are various stages in the conflict cycle and corresponding methods by which the international community (in the form of the United Nations, regional organisations, individual countries, or international NGOs) may become involved in violent conflicts: conflict prevention (early warning, mediation, fact-finding, sanctions, negotiation); military intervention (use of force against combatants and/or to protect civilians); peacemaking (mediation, negotiation); peacekeeping (monitoring of ceasefires, protection of human rights); and post-conflict peacebuilding (economic development assistance and reconstruction, refugee repatriation and reintegration, promotion of the rule of law, election monitoring, demining, prosecution of war criminals, trauma healing and reconciliation workshops). Back.
Note 9: Of course, traditional societies are also replete with examples of the implementation of retributive violence. Back.
Note 10: See, for example, the Victim Offender Reconciliation Program (VORP) described by Zehr (1995, pp. 158-174). Back.
Note 11: “Vatican Apologizes to Jews: Church Cites Failings in Fighting Holocaust”, Washington Post, 17 March 1998, pp. A1 & A15. Back.
Note 12: The Australian, 1 December 1998, p. 12; Sydney Morning Herald, 6 November 1998, p. 9. Back.
Note 13: As developed by Vamik Volkan and Joseph Montville (Montville, 1993; Volkan et al, 1991). Back.
Note 14: Uganda (1974 & 1986), Bolivia, Argentina, Uruguay, Chile, El Salvador, Zimbabwe, Chad, South Africa (1992, 1993), Rwanda, Ethiopia, Philippines & Germany (Hayner, 1994). Guatemala, Burundi, & South Africa (1995) and possibly Sri Lanka, Haiti & Malawi (Hayner, 1996). Back.
Note 15: The atrocities of the Khmer Rouge have since been eclipsed by those committed in Bosnia and Rwanda. Back.
Note 16: Up to 150,000 Cambodians were killed in the American bombardments between 1969-1973. The Communist Party of Kampuchea and its leader, Pol Pot, used the US bombings as recruitment propaganda and as a basis for their “brutal, radical policies and their purge of moderate and pro-Vietnamese Khmer communists and Sihanoukists”. (Kiernan, 1997, p. 194) Back.
Note 17: In March and April 1998, Canada, Spain and Israel all declined the US invitation even though their domestic laws would technically have allowed them to try Pol Pot (Schabas, 1999). Back.
Note 18: The Khmer Rouge ‘show trial’ of Pol Pot in July 1997 referred to the killing of the former foreign minister and his family, not to the genocide. Back.
Note 19: Hun Sen’s party won a majority at the election held on 26 July 1998. Back.
Note 20: Craig Skehan, “Cambodia: The long road from genocide to justice”, Sydney Morning Herald, 29 August 1998, p. 28. Back.
Note 21: Associated Press, 3 December 1998. Back.
Note 22: Associated Press, 3 January 1999. Back.
Note 23: Sydney Morning Herald, 22 January 1999, p. 8. Back.
Note 24: For example, the CGP has developed four databases documenting the genocide — bibliographic, biographic, geographic and photographic — which have been made available to the Cambodian people through the Documentation Center in Phnom Penh ( The Cambodian Genocide Program 1994-1997, Yale Center for International and Area Studies, Yale University, New Haven, CT, February 1998). Back.
Note 25: Paul Kagame, leader of the Rwandan Patriotic Front (RPF) and the Vice President in the new Rwandan government, has reportedly argued that the prosecution of those responsible for crimes against humanity is urgently needed in order that the nation be reconciled. Similarly, Prime Minister Faustin Twagiramungu, a Hutu moderate in the new government, also argued that only with trials and punishment of the guilty can true reconciliation (and ultimately peace) take hold (quoted in Blakesley, 1997, p. 198). Twagiramungu resigned in August 1995 in protest at the way the RPF was running the country. Apparently, by curtailing the activities of the Hutu moderates, the Tutsis in power were boosting the position of the Hutu extremists (Prunier, 1997, p. 367). Back.
Note 26: These and the following observations are based on interviews conducted by the author in Kigali and Arusha in July 1998. Unfortunately I was unable to travel to other regional centres nor to interview Hutu survivors, refugees or prisoners who might have provided a different perspective on the role of the local trials and executions in reconciliation Back.
Note 27: The Rwandan legislation created four levels of culpability for the genocide: (1) the planners and leaders of the genocide; (2) others who killed; (3) those who committed other crimes against the person; and (4) those who committed offences against property. Categories (1) — (3) are subject to full prosecution and punishment, although reduced penalty incentives for voluntary confession are available for categories (2) — (3). (Kritz, 1997, p. 8) Back.
Note 28: A newspaper report indicated that the first trials in the Rwandan capital of Kigali were adjourned because of criticism of the justice system where Hutu defendants were being tried by the Tutsi-dominated authorities (“Rwanda Genocide Trials Halted”, The Australian, 1 January 1997, p. 10). See Kumar (1997, pp. 68-70) for details of some of the problems faced by the ICTR, including logistics, inadequate funding and staffing. Back.
Note 29: Lara Santore, “For Rwandans, Justice Done Only for Others”, Christian Science Monitor, 11 September 1998. Back.
Note 30: A report by the NGO Coalition for Women’s Human Rights in Conflict on “Witness Protection, Gender and the ICTR” (October 1997) calls for strengthening witness protection and the ICTR’s capacity to investigate crimes against women. Back.
Note 31: See report in United States Institute of Peace, PeaceWatch, 4:2, February 1998, pp. 1-2,7. Back.
Note 32: A useful list of major aims and functions of truth commissions is provided by the Rwanda Truth Commission project: creating awareness of crimes at all levels of society through public hearings; breaking through the wall of silence and fighting the suppression of collective traumatic experiences; developing accountability and guilt-consciousness on the side of the perpetrators; reparation for survivors and rehabilitation of the dignity of victims; and standard-setting for government policy in dealing with genocide. (AFB-INFO, 2/95) Back.
Note 33: Even the World Bank has acknowledged that its work on demobilisation and reintegration needs to be accompanied by social reconstruction and reconciliation (Colletta, Kostner & Wiederhofer, 1996). Following the 1993 Peace Accord, the Bank had planned a demobilisation and reintegration program in Rwanda which was curtailed by the return to violence in 1994; it has now been invited back but this time social reconciliation will be part of the program. The Institute for Multi-Track Diplomacy (IMTD) will be working with the World Bank on this project once it receives approval from the Rwandan government. Back.
Note 34: An exception is the Ethiopian government which has been conducting trials of members of the former Deng regime charged with genocide (Schabas, 1999). Back.
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