In 2009, the International Victimology Institute Tilburg (INTERVICT/Tilburg University, the Netherlands), in collaboration with Together Against Impunity in the Great Lakes Region (TAI/GLR) (a Rwandan NGO focusing on victims’ rights), The Legal Aid Forum (a platform with member organisations engaged in the provision of legal aid services to indigent and vulnerable groups in Rwanda) and Ibuka (the umbrella organization for genocide survivors organizations in Rwanda), organized a five days international conference in Kigali, Rwanda, on developing victimological approaches applied to international crimes – genocide, crimes against humanity and war crimes – with a focus on Africa. A mix of academics and practitioners participated in the conference, composed of a combination of insiders describing the processes they helped establish and guide outsiders with more theoretical expert knowledge on these processes. The speakers came from different academic disciplines and from all over the world. Moreover, several speakers of Rwandan NGOs, universities and governmental organizations were invited who shared their experiences coming from a country in which genocide took place so recently. The valuable input from representatives of NGOs enabled to combine the academic perspective with ref ections from people working on the ground. In addition, the visits to various genocide memorials left an unforgettable impression on the participants and enriched our understanding of the complexities at hand. This book contains the results of the conference in four clusters, which ref ect the conference themes.

The wide range of topics addressed was instrumental in guaranteeing in-depth and constructive discussions on developing victimological approaches to international crimes. Correcting the unsettling observation that one stands a better chance of being tried and judged for killing one human being than for killing 100,000 has been a driving force behind the (international) criminal justice initiatives focusing on international crimes. The establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, followed a year later by a sister institution for Rwanda (ICTR), signalled the first steps of the global community in addressing these crimes. The move was later replicated in the form of internationalized tribunals, such as those for Sierra Leone, Cambodia, East Timor and Lebanon.

INTRODUCTION

The notion of ‘victim’ in relation to the genocide perpetrated against the Tutsi population of Rwanda is not easily translatable in Kinyarwanda, the national language of Rwanda. Generally, the concept of victimhood encompasses those who were killed and those who survived the atrocities. However, Kinyarwanda generally uses ‘victims’ to refer to persons who were killed while other victimized individuals who were not killed during the atrocities are generally referred to as survivors. Most survivors lost nearly all they had or cared for during the genocide or the civil war that preceded and accompanied it. They are the first to acknowledge that nothing can be done to give them back what they lost. This does not prevent the resolute action by individual survivors or their organisations to participate in endeavours aimed at ensuring accountability for perpetrators of the genocide. The quest for retribution and reparation only represents partial remedies as they can only provide minimal satisfaction to survivors who have endured tremendous pain and suffering.

The present analysis looks at how the needs and interests of the survivors of the 1994 genocide either have or have not been accommodated under various judicial procedures dealing with the genocide legacy. The chapter dwells on procedures in Rwanda as the scene of the crimes but also as the forum where the overwhelming number of cases were handled. However, it also touches upon the position of survivors in other proceedings – the ICTR and foreign domestic jurisdictions – dealing with the Rwandan genocide. The chapter is generally concerned with the various forms of involvement of survivors in legal proceedings, from the time of instigation of proceedings to the trial phase and the aft ermath or procedures of extradition. Analytical focus on survivors of the genocide is not intended to downplay any other form of victimization before, during and aft er the 1994 genocide. A number of authors have explored the fact from the end 1950s – with the country's transition towards independence from Belgium – until the 1990 civil war and the 1994 genocide, violent repression was part of the country's strategy of governance (Prunier 1995; Mamdani 2001; De Feyter et al. 2005).

INTRODUCTION

Writing about the role of ‘civil society’ in addressing problems faced by victims in post war and post genocide Rwanda is complex and challenging. The subject is too wide-ranging to be covered in one chapter and any attempt to do so would not do justice to the subject matter and the people it concerns. Such complexities exist for three main reasons.

Firstly, the definition of the civil society does not provide a border of clear bold lines and its composition is extremely vast. Civil society is understood as a complex of non-state / governmental organisations created for the promotion of a certain or some shared value(s) in society. It centres on a

Civil society is believed to be composed of

Discussing the role of civil society in a country like Rwanda where every person from at least a young age, is encouraged to belong to a certain mutual benefit cooperative or association for purposes of community development and social cohesion, is like being asked to tell a story about every Rwandan. Cooperatives which are coordinated by the Rwanda Cooperative Agency (RCA) bring together individuals in numerous professional categories, agriculturalists or farmers, small processing and marketing groups, workers/employees of different institutions, artisanal and handcraft s, fishery, consumers, youth and women.

INTRODUCTION

Since the publication of Gustave Le Bon's study on crowd psychology (1895) there has been a growing acknowledgement of the idea that mass or collective violence is essentially different from individual violence (Grimshaw 1970; Summers & Markusen 1999; Barkan & Snowden 2001; Tilly 2003). Horrific incidents, like those occurred during the decade of 1990 in the former Yugoslavia and Rwanda, renewed academia's interest in the most extreme forms of organized and systematic manifestations of collective violence (Ceretti 2009; Smeulers 2010). This brute reality fuelled the development of a new paradigm in criminal sciences, encapsulated in the unprecedented development of the branch of international criminal law (Bassiouni 2003; Cassese 2003; Werle 2009) and the criminology of international crimes (Smeulers & Haveman 2008). Genocide, crimes against humanity, war crimes and aggression, termed nowadays as core international crimes, offer the common ground of these two disciplines.

Although both disciplines converge on the centrality of the collective dimension of core international crimes, they diverge crucially in the way they address it: international criminal law seeks to develop concepts, categories and theories of liability apposite to determine individual criminal responsibility in the context of collective violence with systemic traits, whereas criminology urges for an ethically and legally appropriate allocation of responsibility to different kinds of actors (individual, state and state-like) with respect to different kinds of off ending conducts. In other words, whereas international criminal law analyses core international crimes mainly as instances of individual deviance, criminology analyses them as instances of organizational deviance (Chouliaras 2010c).

Another central issue is the consideration of state involvement in the commission of core international crimes. International criminal law scholars have characterized them as characteristic instances of “abuse of state power” (Bergsmo & Trifft erer 2008, 8), given that they “presume a context of systemic or large-scale use of force (…) typically a state” (Werle 2009, 32). In the same vein Schabas posits that “these are generally crimes of State, in that they involve the participation or the acquiescence of a government, with the consequence that the justice system of the country concerned is unlikely to address the issue” (2010, 40).

INTRODUCTION

Turning a blind eye, looking the other way, averting your gaze, wearing blinkers, living a lie, burying your head in the sand, putting a gloss on the truth. These are some of the expressions and phrases that are commonly used to describe the concept of denial. As individuals, we can be said to ‘live in denial’ when we avoid focusing our attention on information that is too disturbing, unsettling or shameful to be faced and openly acknowledged. The political echoes of these states of mind may be found in official defence mechanisms (‘It didn't happen’, ‘What happened is not what it looks like’, ‘It was an isolated incident’, ‘We had no idea that this was happening’, ‘They brought it on themselves really’, ‘Anyway it was justified’) through which entire societies try to conceal, suppress or dissociate themselves from a record of past atrocities. If such denials of past horrors are initiated by the state, or built into its ideological facade, few would doubt that something wrong is being done. This sort of official denial is immoral, because it involves treating the victims of those wrongs as if they simply did not matter, as if they were politically and morally negligible – an attitude that is disrespectful in its very essence.

The opposite of denial is acknowledgement. To deny that something once happened is to fail to acknowledge that it did happen. This distinction between denial and acknowledgement may look simple enough, but it becomes blurred when one considers the varieties of denial or gradations of acknowledgment (half-truth, evasions, legalistic sophistries and so on) that may appear in official discourse in the Aftermath of collective violence. So what exactly does it mean for a society to ‘acknowledge’ its record of public and political atrocities? And how can this acknowledgement be transformed into action? Part of the answer to these questions will depend on “the nature of the previous regime, its residual power, how the transition happened, and the character of the new society” (Cohen 2001, 222).

INTRODUCTION

It is widely acknowledged that the latter part of the 20th century and the early years of the 21st century witnessed a shift in both the tactics and targets of modern warfare. Whereas armies of one nation once confronted those of another, during this period most wars were waged and fought between factions with in the same nation. A shift in targets from trained and uniformed soldiers to unprotected, innocent civilians also occurred. The international justice community recognized the plight of the victims of such armed conflicts which, in many cases, included entire communities of people. In efforts to ensure an appropriate criminal justice response to international crimes (including war crimes, crimes against humanity and genocide) committed either in international or internal armed conflict settings, several international criminal tribunals and courts were created. The establishment of these criminal justice mechanisms served to increase attention to victims of international crimes in general and also to particularly vulnerable victims. In this regard, while victims of gender and sexual violence have attracted attention, child victims of international crimes – perhaps the most vulnerable of all victims due to a combination of physical, psychological, economic and political factors – are the focus of this chapter.

In the years since the above statistics appeared in UNICEF's 2005 Humanitarian Action Report, they have been routinely quoted in numerous publications relating to children and armed conflict. This fact has signalled a critical need to respond to this particular group of victims. Child victims of international crimes represent a priority for the international community as the needs of arguably the most vulnerable victims of the most heinous crimes known to humankind must be addressed.

INTRODUCTION

The genocide that hit Rwanda in 1994 has been the topic of many publications, academic and journalistic alike. From the start, a specific focus was put on sexual violence committed during the genocide. Many are the stories of women and men being the victims of rape and sexual torture. By including rape and sexual torture in the list of crimes to be tried, first by state courts, later shift ed to the gacaca tribunals, these crimes have officially been acknowledged as acts of genocide within the Rwandan judicial system.

Rape and sexual torture were among the last crimes to be tried by the gacaca tribunals. Starting mid-2008 and running to mid-2009, about 7,000 cases of rape and sexual torture were tried by 17,000 gacaca judges (Inyangamugayo) in 1,900 gacaca tribunals. Although it is extremely difficult to distinguish between bad and worse acts during genocide, rape and sexual torture may be considered among the worst. Trying genocide cases in general is not an easy task, but it may easily be assumed that trying sexual torture cases are amongst the most difficult; for the judges, and even more so for the victims involved, who have to narrate and relive the most intimate details of acts committed to them.

It is therefore that early 2008 it was decided that the Inyangamugayo should receive at least some training about how to deal with rape and sexual torture cases. Because of the language and the very specific experiences, it was decided that the experts/trainers should be Rwandans. Two trainers were identified: a lawyer for the legal issues (the first author of this chapter) and a psychologist for the psychological part of the training (Jeanne Marie Ntete). However, as it would have been impossible for two expert trainers to train all 17,000 Inyangamugayo within a reasonable time, it was decided to train a group of about 250 trainers, forming teams of a lawyer and a trauma counsellor, who together would train all Inyangamugayo during a three month period. This chapter describes sexual violence during the 1994 genocide on the Tutsi in Rwanda, and the way the Inyangamugayo were trained to handle these cases in the gacaca tribunals.

GENERAL INTRODUCTION

Over the centuries, rape has been a by-product of many wars and armed conflicts and its scale in some conflicts has led to its description as a weapon of war. Although there are no comprehensive statistics on the occurrence of rape during conflicts, 14,200 registered rape cases in South Kivu province of the Democratic Republic of the Congo (DRC) between 2005 and 2007, may suggest how high and common the incidence of rape in times of war is.

The Rome Statute of the International Criminal Court (ICC or Court) has made very significant progress in recognizing several gender-based crimes, including rape, as genocide as well as crimes against humanity and war crimes. This focus has also led to significant strides in the description of the off ence, its elements and profile. This is in contrast to the Statutes of the ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) where the definitions of the offences are given in general terms. In recognising the mere fact that both sexes suff er sexual violence in times of armed conflicts, the boundaries of justice are expanded to the inclusion of assistance to both female and male victims/survivors (OCHA 2008). The Rome Statute and the practice of the ICC envisage and include support to victims, which is eff ected by the establishment of the Victims and Witnesses Unit (VWU), the Victims Participation and Reparations Section (VPRS), and the Office of Public Counsel for Victims (OPCV).

In this manner the ICC recognizes the right of every individual to his or her physical integrity and self-worth and for the first time, victims/survivors of sexual violence are empowered to fight such breaches of their physical integrity, through actively participating as victims in the criminal proceedings before the ICC. Where the personal interests of the victims are affected, the Court permits their views and concerns to be presented and considered at different stages of the proceedings, thus departing from the ad hoc Tribunals practice of considering the victims as witnesses only.

INTRODUCTION

Violence is a human universal. It is of all times. This relativist truism should not cloud our awareness of the fact that during the past century interpersonal violence has acquired a new dimension. The 20th century has demonstrated mass violence on a scale and with an intensity hitherto unknown to mankind (e.g. Glover 2001; Mazower 2002). To name but a few sobering examples: there were the two World Wars, the horrors of the Stalinist era and the cultural revolution in China, the killing fields in Cambodia, the atrocities in the Balkans, and quite a few so-called regional conflicts on the African continent (see e.g. Power 2003; Mann 2005; Prunier 2009). The atrocities involved hundreds of millions of casualties. Like never before, the lethal combination of human flaws and modern technology and weaponry created an opportunity to inflict suffering beyond comprehension.

There has been another shift worth noticing. During previous centuries, mass violence was closely connected to warfare, while the latter was primarily an aff air between the armies of sovereign nations. Hence the individuals who used to pay the ultimate price for these conflicts were predominantly professional soldiers. In the course of the 20th century this has gradually changed. In the First World War, a significant majority of casualties still came from military ranks. The Second World War reduced this proportion to some 50%, with the other half taken from the civilian population. During the Vietnam War, some 70% of ordinary civilians accounted for the total loss of life. In subsequent armed conflicts, this percentage further increased (Valentino 2005). In a macabre sense there is evidence of an unmistakable ‘civilization of warfare’ (see e.g. Chesterman 2001).

These developments necessitated the definition of new concepts of crime. Mass violence, oft en committed in the name of the State, called for its own labels to capture the essence of this new level of injustice (see Lemkin 1947; Bassiouni 1992; Power 2003). The abuse of sovereign power inherent in these atrocities led to the development of the so-called international crimes: crimes against humanity, war crimes and the crime of genocide.

INTRODUCTION

The myth of pure evil defines the way we look at extreme atrocities (Baumeister 1999). It portrays the perpetrators thereof as bad and evil and the victims as good and innocent and thus classifies the victims and the perpetrators in two extremes, namely two mutually exclusive groups: the good and the bad. One may wonder, however, whether this is always fair. The distinction between perpetrators and victims might be clear cut when looking at a single event, for example a woman who kills her husband with a knife. Yet, if we look at the context, the distinction between perpetrator and victim might not be so clear cut when – to use the same example – it turns out that the wife has been abused, mistreated and sexually exploited by her husband for years and that he was about to attack her again. This could be no different for perpetrators of international crimes. The international legal framework has qualified perpetrators of international crimes as hostes humani generis; enemies of all humankind and thus seems to endorse the myth of pure evil. Yet, one may wonder if this classification is always adequate. In order to answer this we need to take the person who committed the crimes into account as well as the context in which the crime has been committed. The aim of this chapter is to do this and test whether the myth of pure evil in which the two groups are mutually exclusive is an adequate representation of reality or whether we need to take a more nuanced view.

In the following sections I will focus on perpetrators of international crimes and discuss to what extent perpetrators can also be victims and victims can become perpetrators. In the sections 2 to 4 three types of situations are distinguished. In section 2, perpetrators who are driven by an ideology in which they themselves are depicted as the victims are considered. In section 3, the focus is on victims who, as a means of self-defence, commit atrocities and thus become perpetrators themselves. In section 4, the focus will be on various situations of enforced compliance and cooperation in which individuals or even whole groups are pressured and forced by others to go along. Section 5 discusses three case studies in which victims come to cooperate with the oppressor and commit atrocities.

INTRODUCTION

Over the past decades the idea that serious perpetrators of international crimes – genocide, crimes against humanity and war crimes – can be amnestied has been severely challenged. According to Cherif Bassiouni (2002, 3): “The realpolitik of reaching political settlements without regard to a post-conflict justice component is no longer acceptable”. In its early peace-building efforts the United Nations has generally felt free of legal or moral constraints in endorsing amnesty-for-peace deals. In many of these cases such amnesties were accompanied by the parallel establishment of truth commissions, such as in El Salvador (1991), Haiti (1994), South Africa (1995) and Guatemala (1996) (Stahn 2002, 192–195). Over the last decades the United Nations and many other actors have shift ed to a more rigid doctrine that serious perpetrators of international crimes should always be prosecuted, no matter what accompanying activities are organised. It has led to the establishment of new (international) forums and mechanisms to prosecute perpetrators of international crimes. The United Nations argues that “carefully crafted amnesties” can help in the return and reintegration of displaced civilians and former fighters, but that “these can never be permitted to excuse genocide, war crimes, crimes against humanity or gross violations of human rights”. Likewise, other policy makers, scholars and international NGOs have taken a firm position opposing the granting of amnesties to any serious perpetrators of international crimes.

The consequences of this shifting position are not abstract. They are very real. It has for example led to the establishment of the International Criminal Court (ICC) with a Prosecutor's Office that can independently decide on the prosecution of the most serious suspects of international crimes. Once this office has issued an arrest warrant, there is no turning back. Recent history has taught the prosecutor's inflexible position regarding amnesties. After two years of serious negotiations between the Ugandan government and the rebels of the Lord's Resistance Army (LRA), LRA leader Joseph Kony considered making use of the government's offer for amnesty (Mukasa 2008). He however wanted existing ICC arrest warrants against the LRA leadership lifted before demobilising.

INTRODUCTION

South Africa is a country that emerged from the most inhumane racial oppression orchestrated by the apartheid regime. Apartheid sought to dehumanise South Africans and the Truth and Reconciliation Commission (TRC) forced a country to redefine itself through the accounts of its victims and perpetrators, or as Krog (2002, 293) asserted “we have to become each other, or for ever lose the spine of being”. The TRC is the most visible vehicle that made this redefinition possible but for a new democratic and reconciled order whose future relies on emerging and transcending an atrocious past, reconciliation had to become part of a much broader process. The following discussion will focus on various challenges associated with reconciliation, but for purposes of contextualising the challenges of a transitional society, it is first necessary to briefly discuss the institution of apartheid as well as key elements pertaining to the nature and functioning of the TRC.

BRIEF OVERVIEW OF APARTHEID

In South Africa the roots of apartheid can be traced back to its colonial era. In 1652, Jan van Riebeeck from the Dutch East India Trading Company founded a permanent settlement in the Cape of Good Hope. In 1795 the Cape colony was seized by the British, recovered by the Dutch and seized again by the British in 1806. Since its first colonisation and regardless of its colonial powers, and with the aid of slavery, a long history was established of white dominance over Africans in this region (Elian 2003; Loomba 2005). Despite such prolonged period of white dominance, the term apartheid (from the Afrikaans word ‘apartness’) only emerged as a political slogan of the National Party in the early 1940s (Oomen 2005). Subsequently, when the Afrikaner Nationalists came into power in 1948, the white supremacist policy of racial domination and segregation was further institutionalised through a plethora of laws:

INTRODUCTION

There is little argument that the primary function of international criminal tribunals is to investigate, prosecute and punish those believed to be responsible for the most serious crimes of concern to the international community, namely war crimes, crimes against humanity and genocide. International criminal courts, from the time of the Nuremberg trials to today, have steadfastly attempted to carry out their respective functions through condemnation of the criminal acts in question and of the perpetrators found guilty. In line withtraditional theories of criminal justice, the focus of international criminal courts has unquestioningly been on the seriousness of the crime committed and the role of the offender. Thus, the spotlight of international criminal trials has almost exclusively centred on the crime committed rather than on the harm suff ered. For example, at the ad hoc International Criminal Tribunals for former Yugoslavia (ICTY) and for Rwanda (ICTR) or the Special Court for Sierra Leone (SCSL), if the victims played a part in the trial process it was solely as witnesses called by the parties or by the court but never participating in his or her own right as a victim. When preparing the Statute for the ICTY a proposal for allowing the appointment of separate counsel for victims was rejected (Morris&Scharf 1995). The rejection, mainly by delegates from the United States but also from other states, was out of fear that third-party participation would lead to conflicts withthe prosecution's case (Tochilovsky 1999).

The exclusion of the victim from any role other than a witness at the international level, however, has met withstrong criticism. In almost all domestic legal systems victims are permitted to play a broader role in the process. In general, common law countries tend to allow victims the opportunity to present their views and concerns to the court at the sentencing stage of a criminal process through either oral or written victim-impact statements.