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.

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.