Criminal Law and Gacaca
Coming to Terms with the Rwandan Genocide by means of a Pluralistic Legal Model
Systematic, mass violence can be addressed by means of procedures with differing legal forms, including procedures of a national, non-national, or mixed national and non-national nature. This research project examines how the procedures of the UN Rwanda Criminal Court, the Rwandan criminal justice system, and the neo-traditional Gacaca deal with the mass violence experienced in Rwanda and clarifies the issue of a pluralistic approach to the prosecution of international criminal offenses.
|Project category:||Doctoral thesis|
|Organisational status:||Individual research project|
|Project time frame:||
Beginning of project: 2005
End of project: 2011
|Status of Project:||completed|
|Legal system(s):||International criminal law, national criminal law, tribal law|
Head(s) of project
It is possible to respond to systematic, mass violence by means of different kinds of legal procedures, including procedures of a national, non-national, or mixed national and non-national nature. These procedures generally take place in societies that are undergoing a transition, which is why they are referred to by the general term "transitional justice." This is true in the case of the Rwandan genocide, which is being prosecuted, for the most part, in three different legal systems: the international, the national, and the (neo)traditional legal sanctioning system. To date, however, the research desiderata in this area, namely, the use of a combination of various types of procedure to deal with mass violence (national, non-national, and international), are large.
In the instance of the Rwandan genocide, this research void will be filled by the dissertation project "Criminal Law and Gacaca," in which the interconnections among the International Criminal Tribunal for Rwanda, the national Rwandan criminal justice system, and Gacaca in their handling of Rwandan mass violence is studied.
The goal of the dissertation is to research and compare the procedures and sanctions of these three legal systems in order to understand their functions in relation to one another. In order to do this on a practical level, it is necessary to examine the legal policy goals underlying the implementation of each of the procedures and to pinpoint conflicting objectives. As far as methodology is concerned, the project takes a pluralistic approach that goes beyond the discussions to date, which apply western criminal law-oriented measures to evaluate legal reactions to mass violence. The project will provide information about whether and how a pluralistic approach can be applied in the process of coming to terms with mass violence. It will focus not only on issues of international criminal law but also on the functional limits of traditional criminal law. This is because the three systems under study must deal with the challenge posed by the very large number of offenders – a situation that overwhelms the capacities of a traditional criminal law system. Furthermore, faced with a collective of mass violence, the systems must confront the task of attributing individual criminal responsibility to individual offenders. Given these objectives, the project is clearly well-suited to the Research Program of the Max Planck Research School for Comparative Criminal Law, because its results will provide new insights into the developmental trends and the functional limits of (international) criminal law.
In order to fulfill this objective, the research project relies on legal pluralism as an analytical concept, whereby methodologically it makes use of the entire canon of comparative criminal law. In so doing, fundamental – especially qualitative – aspects of law in practice are included, along with a function-oriented assessment of individual provisions and their practical implementation.
The study is divided into three parts: an introduction, a main body, and legal policy conclusions. In the main body, the character, the scope of application, and the substantive and procedural rules of the three legal systems will be examined. Each of these three subsections ends with a comparative criminal law discussion. The third part of the study consists of legal policy conclusions that encompass the goals and functions of the models, the standards to be applied in their assessment, and finally their assessment.
Initial results of the study indicate that while all three legal systems pursue the same goals, their approaches, methods, and places of operation are completely different. The combination of these legal systems, however, facilitates a more precise and selective mode of operation. Thus, it may be stated that the pursued objectives can be only be achieved by means of a pluralistic system of transitional justice.
This project is a doctoral dissertation supervised by Prof. Dr. Ulrich Sieber, University Freiburg.
- Knust, Nandor: Strafrecht und Gacaca. Entwicklung eines pluralistischen Rechtsmodells am Beispiel des ruandischen Völkermordes. Berlin, Duncker & Humblot, 423 p., 2013. In addition: Diss.