ANALYSIS Elena Barth 22 October 2020
When emerging from a period of violence, oppression and systematic human rights abuses, transitional societies are necessarily concerned with the question of whether and how to enter into a process of judicial work-up of the past events and the rebuilding of their social fabric. Transitional justice designates an academic discipline as well as a legal and political practice that investigates these questions. After a brief characterization of its approach to justice, an innovative example of the past – the Rwandan Gacaca Courts – will be evaluated. An outlook into a future field of application, being the Rohingya Crisis in Myanmar, will point out the major challenge the establishment of transitional justice encounters: The unique nature of each country`s legal, social and economic fabric requires to provide for individual solutions for almost every case of application.
I. What is Transitional Justice?
The United Nations defines Transitional Justice as “the full range of processes and mechanisms associated with a society`s attempt to come to terms with a legacy of largescale past abuses, […].” In light of the complexity of such process, transitional justice comprises a broad range of objectives and corresponding instruments. Apart from entailing mechanisms to establish legal accountability and compensate past injustice with proportionate punishment, it focuses on inducing a process of reconciliation and social reconstruction. As, at times, these goals conflict with each other, transitional societies are tasked with finding an equilibrium between accountability and reconciliation, between justice and peace.
II. An example of the past: Rwanda`s Gacaca courts
As a means of transitional justice, the Rwandan Gacaca courts were intended to address the needs of a society that was deeply affected by a civil war between its largest population groups – the Hutu and the Tutsi –, which had culminated in a governmentally driven genocide campaign against the Tutsi in 1994. Due to the country`s exhausted resources in the aftermath of the genocide, the Tutsi-led government was urged to adopt alternative methods of administering justice.Its ideas materialized in a revival of traditional, community-based tribunals that were governed by a legislative framework. Addressing the needs of the Rwandan population, the courts were ought to conduct criminal proceedings in a cost- and time-efficient way and incite a process of reconciliation through applying a participatory approach. The extent, to which Gacaca established accountability and reconciliation serve as criteria to measure its success.
With regard to the scope of accountability, the courts accomplishments in providing access to justice to a tremendous number of suspects are almost undisputed. In order to initiate and accelerate social reconciliation, Gacaca transferred the judicial treatment of its past towards the Rwandese population. While operating as a network of communal forums, it allowed to address and discuss conflictual matters openly. As such, modern Gacaca was substantially more inclusive than its historic role-model, which becomes apparent in 30-40% of the judges being women. It is yet noteworthy that the trials suffered from a significant decline in participation, due to local actors bribing, intimidating and even killing witnesses. Likewise, Gacaca has been criticized for operating as a mechanism of state-control and establishing “victors` justice”, since the court system – which was employed by a Tutsi-led government – almost exclusively prosecuted crimes committed by Hutu.
What evoked most criticism was the courts` failure to comply with international human rights provisions, in particular fair trial standards. As legal counsels were not permitted in the trials, thereby violating Art. 14 (3) (d) of the International Covenant of Civil and Political Rights (ICCPR), it was significantly more difficult for the accused to mount an effective defense. In noncompliance with the accused right to a competent and impartial judiciary (Art. 14 (1) ICCPR), the judges were not required to having attained any level of education nor qualification in law. Due to the courts` embedding in the local communities and the lack of monetary compensation, they were particularly sensitive to local power structures and susceptible to bribery.
Yet, owing to the country`s miserable economic situation in the aftermath of the genocide as well as the need to relieve the desperately overcrowded prisons, doubts had been raised, whether international standards were appropriate to apply. Indeed, one can presume that a greater investment of material resources and time in order to fully adhere to international standards would have increased the risk to induce further eruptions of violence and perpetuate inhumane living conditions in detention facilities. Nonetheless, human rights organization such as Human Rights Watch proposed a range of mechanisms, which could have helped protecting fair trial rights but not overburdened the country`s resources. One can thusly conclude that the given potential to safeguard human rights was not fully utilized. The Gacacajurisdiction, however, constitutes an innovative means of transitional justice that stands exemplarily for the precarious conflict between the processing of past, terminating of present and pre-empting of future human rights violations in post-conflict societies.
III. Transitional Justice: Finding individual solutions
Yet, the Gacaca Court`s success with regard to the judicial and social processing of the Rwandan genocide does not make it an instrument that is universally applicable to address human rights violations in any post-conflict society. Such “problem of transferability” becomes noticeable when relating the Rwandan case to a more recent conflict, the Rohingya Crisis in Myanmar. The Rohingya, a Muslim minority group, suffered from decades of discrimination and persecution by the Myanmar authorities, which escalated in a military campaign of ethnic cleansing starting in October 2016. Yet, the government has so far refused to adequately investigate and prosecute the crimes committed. The political reality in Myanmar makes an installation of community-based tribunals, following the example of the Rwandan Gacaca courts, highly unrealistic. As the comparison of both conflicts illustrates, a country`s social, economic as well as political conditions determine the range of mechanisms that can be employed in a given conflictual context and whether such means will succeed in promoting social reconciliation and long-lasting peace. An inconsiderate adoption of an instrument or combination of instruments proven effective in another country will very rarely turn out successful. Therefore, engaging in Transitional Justice encompasses an in-depth examination of a country`s social and economic fabric as well as legal parameters. It involves scrutinizing a given concept`s applicability to such conditions and, in many cases, the modification of existent or even invention of new mechanisms to best address the respective society`s needs. With regard to the Rohingya Crisis, it remains to be seen, whether international and national efforts come to adapt successfully to the country`s political constraints.
Report by Elena Barth.
Elena Barth is a Student of Law at University of Bayreuth.
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 Bolocan (2004), Rwandan Gacaca: An Experiment in Transitional Justice, Journal of Dispute Resolution, 04(2), 358;
 Clark (2010), The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda, Cambridge University Press, 142.
 Bornkamp (2012), Rwanda`s Gacaca Courts, Oxford University Press, 112.
 Tiemessen (2004), After Arusha: Gacaca Justice in Post-Genocide Rwanda, African Studies Quarterly, 8(1), 65 et seq; Ingelaere, supra note 5, 95.
 Bolocan, supra note 6, 388; Westberg (2010), Rwanda`s Use of Transitional Justice After Genocide, Kansas Law Review, 59(2), 365.
 Ingelaere, supra note 5, 54.
 Tiemessen, supra note 9, 66.