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Conventional Justice v. Innovative Justice: Comparing Reconciliation Experiences in Rwanda and Cambodia

by Hadley Rose, Esq.

I. Introduction At a community reconciliation forum in the former Khmer Rouge stronghold of Anlong Veng, Cambodia, villager Then Sophal posed this pivotal question:

“What is the meaning of the word ‘reconciliation’?” he asked, after apologizing for his ignorance. “I always hear this word, but I do not understand exactly what it means.”

A monk sitting in the front row rose to respond.

“It’s like how you need to apply medicine to an old wound, or it will always be causing new problems,” he explained. “How we reconnect our flesh to one another—this is reconciliation.”1

Despite the fact that some have argued there is no word for “reconciliation” in the Khmer language, this Cambodian monk seems to have captured its meaning and import with simplicity and eloquence. Reconnecting with one another, rebuilding social bonds and reforming broken communities is at the heart of reconciliation. But how do societies actually accomplish that? Rwanda and Cambodia have both experienced major genocides and atrocities and are now well into their reconciliation processes, but the nature of the atrocities and the cultural, religious and political situations in each of the countries are vastly different. This paper traces some of the similarities and differences in the respective genocides and the post-genocide reconciliation processes, with a view to encouraging the reader to notice and analyze how social, political, historical, cultural, religious and other factors play a role in the work of recognizing and punishing past genocides and preventing future genocides. II. Historical background of the Cambodian and Rwandan genocides

A. Democratic Kampuchea, 1975-1979

Cambodia in the 1960s and 1970s was a tumultuous place, rife with corruption, widespread poverty, and chaotic politics. By the time the Khmer Rouge definitively came to power in April of 1975, much of the population actually “cheered” their arrival as the

                                                                                                               1 Julia Wallace and Neou Vannarin, “Regime Victims, Perpetrators Meet at Former KR Stronghold”, the Cambodia Daily, 10-11 April 2010, p.1-2, 14.

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end of a 5-year civil war.2 The Khmer Rouge re-named the country Democratic Kampuchea, declared “year zero”, and implemented a form of communism meant to make Cambodia “completely independent of all foreigners”.3 Soon after the initial euphoria set in, the Khmer Rouge began to take extraordinary steps which were obvious causes for alarm among the population and international observers.4 Within hours of the rebel take-over, soldiers forced the evacuation of the capital city Phnom Penh and other major cities throughout the country, eventually forcibly settling people in rural communes, often separated from their spouses, children and other family members. Almost the entire population of 7 million people was forced to cultivate rice. The pervasive suspicion of the regime actually became manic and unfounded fears that anyone who talked to another person, or even worked too slowly was in fact an enemy spy. Detention centers opened all around the country for the purpose of coercing confessions through torture and murdering almost all “suspects”. The motivation for the destructiveness of the Khmer Rouge regime is not all that easy to grasp. Although Cambodians have been calling the Khmer Rouge period a genocide essentially since it occurred,5 most of the crimes seem to fit more accurately under the legal definition of “persecution”, which is characterized by “large-scale and discriminatory offending” and involves “massive criminality”, but which “may not entail the necessary physical destruction or exterminatory intent required for genocide.”6 While there were genocides against Cham Muslims and ethnic Vietnamese persons,7 the essence of most of the crimes of the Khmer Rouge was not the extermination of a nationality, race, ethnicity, or religious group, which is what the UN Convention requires.8                                                                                                                2 CAMBODIA: Long March from Phnom-Penh, 19 May 1975, page 2, TIME.com (last accessed on 14 June 2011). 3 CAMBODIA: Long March from Phnom-Penh, 19 May 1975, page 4, TIME.com (last accessed on 14 June 2011). 4 CAMBODIA: Long March from Phnom-Penh, 19 May 1975, page 1, TIME.com (last accessed on 28 June 2011) (“The enforced mass exodus from the capital was carried out, it seemed, in desperate, mindless haste. The rice harvest will not be in until November. What will the millions of refugees in the countryside eat between now and then?”). 5 This paper will also refer to the crimes of the Democratic Kampuchea period as “genocide” without intending to impute any special legal meaning.  6 Judgement (Public), Case File/Dossier No. 001/18-07-2007/ECCC/TC, 26 July 2010, citing Prosecutor v. Kupreškić et al., Judgment, ICTY Trial Chamber (IT-95-16-T), 14 January 2000, para. 636 (“persecution as a crime against humanity is an offence belonging to the same genus as genocide. Both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging. In both categories what matters is the intent to discriminate [. . .]. While in the case of persecution the discriminatory intent can take multifarious inhumane forms and manifest itself in a plurality of actions including murder, in the case of genocide that intent must be accompanied by the intention to destroy, in whole or in part, the group to which the victims of the genocide belong. Thus, it can be said that, from the viewpoint of mens rea, genocide is an extreme and most inhuman form of persecution.”) 7 Dr. Gregory H. Stanton, The Cambodian Genocide and International Law (1992), in Genocide and Democracy in Cambodia: The Khmer Rouge, the United Nations, and the International Community, Ben Kiernan, ed., Monograph #41, Yale University Southeast Asia Studies (1993). 8 Convention on the Prevention and Punishment of the Crime of Genocide, Gen. Assemb., U.N. Res. 260(III), 9 December 1948, Article II.

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In addition, those who were well-educated or westernized were specifically targeted as a threat to the regime’s legitimacy (although almost all the top leaders of the regime were very well-educated in Europe). This meant that the segment of the population educated and trained to run the nation’s institutions was decimated, feeding the genocidal regime’s power and also slowing the recovery process after the Khmer Rouge fell. In addition, most of the regime’s cadres were teenagers, or even younger children. In this way, an entire generation of youth were torn away from their families, forced to marry strangers, and brainwashed to swear allegiance to a brutal regime. After three and a half years of starvation and struggle for the Cambodian people, Vietnamese troops joined with the small Cambodian resistance movement growing in the eastern part of Cambodia. On 25 December 1978, Vietnamese troops entered the country, and by 7 January 1979, the force officially toppled the Khmer Rouge and took Phnom Penh. Although many now look back on it as one of the most brutal regimes in history, the communism imposed by the Khmer Rouge was not necessarily an outlying concept at the time, nor was it recognized as such by the international community.9 The United States, for example, had a tortured relationship with Cambodia and Vietnam during that time in history, and seemingly preferred Khmer Rouge leadership to a regime allied with Vietnam. In addition, the Khmer Rouge both maintained control of part of the country and remained the official ruling party representing Cambodia at the United Nations well into the 1990’s. In the end, those who snatched power through the promise of an egalitarian society instead wreaked such destruction and havoc upon their country that at least twenty percent of the population was killed either by starvation or disease, or murdered in one of the infamous detention centers. B. Civil War and Genocide in Rwanda, 1990-1994 Historically, Rwanda had two major ethnic groups. The Hutu majority group tended to be cultivators and among the poorer members of society. The Tutsi minority group had historically herded cattle, a source of great wealth in Rwanda. Although some mythology surrounds the origin of the Tutsi minority group,10 by the time colonial powers entered East Africa, both ethnic groups were fully Rwandan in nationality, spoke Kinyarwanda, practiced forms of Christianity, shared the same cultural practices, and had intermarried for generations. However, the Tutsi, allegedly due to their physical appearance, wealth and intelligence been given power and privilege by the colonialists, creating a stark separation between the two groups.

                                                                                                               9 Ben Kiernan, Cambodia’s Twisted Path to Justice, The History Place: Points of View, http://www.historyplace.com/pointsofview/kiernan.htm (last accessed 22 June 2011) (“China, the United States, and the Association of Southeast Asian Nations (ASEAN), all supported Pol Pot's Khmer Rouge in various ways. The Great Powers opposed attempts to bring the Khmer Rouge to justice. No country in the world could be found to file a case against them in the World Court. The Khmer Rouge held on to the Cambodian seat in the United Nations, representing their victims for another fifteen years even though they were openly accountable for their crimes. Rather, international aid poured into their coffers, abetting their war to retake power.”). 10 Some have alleged that the Tutsi are actually occupiers in the country of Rwanda who came from Abyssinia, or ancient Ethiopia.

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In 1959, a first genocide against Tutsis was perpetrated, and over a hundred thousand Tutsis fled to Uganda, some living as refugees there for decades. On 1 October 1990, a military force called the Rwandan Patriotic Front (RPF), comprised mostly of Rwandan refugees who had been living in Uganda, marched into northern Rwanda in what was probably an attempt to pave the way for some of the half million Tutsis living abroad to return home. However, some interpreted it as an invasion and an attempt to bring the Tutsi ethnic group back into power. Military skirmishes and “practice genocides” flared in the ensuing years, egged on by official policies of discrimination from the Hutu-led government and propaganda spread through radio broadcasts. Common messages compared Tutsis to cockroaches, dogs and hyenas. After a series of failed cease-fire agreements, then-President Juvénal Habyarimana and the RPF signed the Arusha Accords in August 1993 in an attempt to create a power-sharing government. The UN dispatched the UNAMIR force to Rwanda to help enforce the Accords and keep peace. However, on 6 April 1994, a plane carrying Habyarimana was shot down under mysterious circumstances as it neared the capital city of Kigali.11 Immediately, radio messages aired blaming Tutsis for the death of the President, and within hours, roadblocks went up all over the city in order to identify and kill Tutsis and moderate Hutus who were known to favor peace. After 100 days of mass hysteria and brutal violence, the RPF took control of Kigali and the violence finally tapered off, leaving over 800,000 bodies in its wake. The months that followed were tense, as an estimated 2 million Hutus fled the country, mostly to Zaire (now the Democratic Republic of the Congo), fearing reprisal killings. The skirmishes continued as the RPF sought to secure its control over Rwanda and break up the re-organization of militant Hutus (called “interahamwe”) in the refugee camps in Zaire, which had essentially become military training grounds. Many estimate that, in the end, over 1 million Rwandans from both ethnic groups died as a result of the genocide whether through violence, disease or other related causes. C. Observations on the progress toward reconciliation in each country Up to today, it seems that Rwandan society has come far in its official reconciliation efforts, making measurable progress stemming from State-sponsored initiatives and domestic reconciliation efforts (with some assistance from international agencies). Cambodian society (at least as represented by official efforts) seems to have been more reluctant to engage in, or merely less interested in engaging in, reconciliation efforts, despite the involvement of many international agencies in trauma counseling and healing initiatives.

                                                                                                               11 Although no conclusive evidence has been found, many scholars and journalists suggest a theory that extremist Hutus were in fact responsible for the killing, whether to prevent the President from agreeing to further peace measures, or to create an excuse to start the genocide.

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Despite the progress toward reconciliation in Rwanda, it is probably beyond dispute that the imminent danger of a relapse is much more palpable in Rwanda than in Cambodia. Educational programs and reconciliation initiatives have been implemented in the past 17 years, but ethnicity is still an issue in the minds and hearts of even the most educated members of society. At the same time, despite the apparent level of peace and calmness and the contempt for extremist communism in Cambodia, the air is so thick with resentment that one nonetheless wonders whether some unforeseen catalyst could in fact trigger underlying trauma, leading to violence in the country. In the end, the most basic issues of economic equality and educational equality, which create an environment in which genocide can flourish, have yet to be truly solved in either country. III. Significant similarities and contrasts in the two cases

A. Motivation behind the crimes The motivation behind the crimes and the nature of the crimes will undoubtedly affect reconciliation efforts. Rwanda grapples with deep-seated beliefs about inferiorities based on race or ethnicity, which do not instantly disappear simply due to a military victory, but may take generations to dissolve. The Cambodian case is more difficult to characterize. Communism itself was not necessarily the wrong belief that led to the crimes, nor did it purport to pit two groups against one another. However, at the time, Cambodia had a population in which most individuals lacked education and lacked the economic resources to opt out or challenge the regime once its brutality was evident. In the case of Rwanda, there is no doubt that the genocide was motivated by ethnicity, and also colored by economic inequality. The Belgian colonialists had enforced a strict system of racial division, measuring facial features and printing every person’s ethnicity on his or her identity card. Those designated “Tutsi” were promoted to positions of leadership, influence and wealth, while those designated “Hutu” were overlooked and even oppressed. Furthermore, the genocide crimes in Rwanda were characterized by incredible violence and betrayal. People were hacked to death with blunt machetes in the streets, and even killed by their own family members. Rape was used purposefully as a weapon of genocide.12 Often, the crimes involved betrayal by friends, neighbors and relatives. The goal was to eradicate, and in the process, humiliate an entire race of people. In the case of Cambodia, the motivation for the genocide was more about a political philosophy. A small group of political elites who were seemingly motivated by goals of egalitarianism and the communal good took over the country. However, their willingness to sacrifice the lives of so many innocents suggests that their motivation was not actually the greater good of the Cambodian people, but instead, the greater good of their political

                                                                                                               12 Even a woman has been convicted of rape at the ICTR. Pauline Nyiramasuhuko, ICTR-97-21, Summary of Judgment and Sentence, para. 27 (“Nyiramasuhuko aided and abetted rapes and is responsible as a superior for rapes committed by members of the Interahamwe”), para. 44 (“On Count Seven of the Indictment, Rape as a Crime Against Humanity, the Chamber finds you GUILTY as a superior of the Interahamwe who raped Tutsis taking refuge at the Butare préfecture office.”).

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ideology. While the regime certainly utilized violence and murder, the majority of victims instead experienced drawn-out suffering through starvation, dehydration and disease. Living in a constant state of hunger, illness and terror was undoubtedly mentally and emotionally violent. This contrast between Rwanda and Cambodia shows that the nature of the crimes is bound to play a role in the truth-telling and reconciliation process. The sense of betrayal by relatives and neighbors runs deep in Rwanda. Non-sensical cruelty from a stranger confounds the Cambodian consciousness. As the contrast between these two experiences shows us, the nature of the crimes must be taken into account when designing a reconciliation model.

B. Number and nature of perpetrators and victims Society’s characterization of who perpetrators and victims are also has a significant impact on the nature and success of reconciliation efforts. In Cambodia, a belief that everyone is a victim and few were perpetrators seems to have been widely adopted. In Rwanda, by contrast, even those guilty of mere property crimes during the genocide are labeled as genocide perpetrators. In Cambodia, only a handful of individuals have ever been detained for crimes committed during the Democratic Kampuchea period. In Rwanda, over 100,000 individuals have been detained for their suspected involvement.13 The Rwandan case involved upwards of a million perpetrators, many of whom were adults. While some individuals were forced to participate in the crimes under duress, the bulk of the perpetrators participated of their own free will (at least to a degree). Undoubtedly, years of propaganda, brainwashing and dehumanization of Tutsis created an environment in which mass participation in a genocide could occur, and the government’s official policy of discrimination was also a significant factor in people’s participation. However, the perpetrators in Rwanda were united by a cause—albeit a terrible cause, but a cause nonetheless. By contrast, the Cambodian case involved a much smaller number of perpetrators. While there were of course masterminds14 and subordinates,15 as in the Rwandan context, the proportion was skewed toward very few masterminds and many subordinates in

                                                                                                               13 Gacaca Jurisdictions: Achievements, Problems and Future Prospects, PowerPoint Presentation, National Service of Gacaca Jurisdictions, slide 3, available at http://www.inkiko-gacaca.gov.rw/En/EnIntroduction.htm. 14 Organic Law n° 08/96 of 30/08/1996 on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990, Article 2 (“Category 1: a) persons whose criminal acts or whose acts of criminal participation place them among the planners, organizers, instigators, supervisors and leaders of the crime of genocide or of a crime against humanity”). 15 Organic Law n° 08/96 of 30/08/1996 on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990, Article 2 (“Category 2: persons whose criminal acts or whose acts of criminal participation place them among perpetrators, conspirators or accomplices of intentional homicide or of serious assault against the person causing death”), Article 3, paragraph 2 (stating that superiors will be held responsible for the acts of their subordinates).

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Cambodia. Or, at least, that is how it has been interpreted over time. Many Khmer Rouge cadres were conscripted as what would now be called child soldiers, who by definition have limited or no culpability for crimes. Instead of being united by a cause, as in Rwanda, many of the perpetrators in the Cambodian genocide were seemingly united by a fear of disobeying the violent, controlling regime. Interestingly, in both countries, the current political leaders are credited, at least to some degree, with the liberation of their countries from the genocidal regimes. Prime Minister Hun Sen of Cambodia originally joined the Khmer Rouge as a young man, but later defected and joined the movement that overthrew the Khmer Rouge. President Paul Kagame had been living as a refugee in Uganda for his whole life because of the 1959 genocide in Rwanda, and he eventually helped lead the movement to overthrow the genocidal government. Without going into the layers of the potential criminal responsibility and culpability of each of these leaders, it is notable that both Rwandan and Cambodian societies are highly deferential to authority. Clearly, the role of those in authority immediately following the genocide and at the current time colors society’s perception of who was a victim and who was a perpetrator. In Cambodia, many people would have shared Hun Sen’s experience of originally supporting the Khmer Rouge, and even working for the regime, but later seeking a way out once the brutality of the regime became evident. However, the country’s leaders do not recognize any measure of culpability, but instead put forward an official policy of blaming the handful of senior leaders. In Rwanda, the genocide grew out of a state of civil war, and many in Rwanda and the international community have called for the RPF to take responsibility for criminal acts which occurred before and after the genocide. However, this has happened only in a very limited number of cases. Those in power have the capability to characterize the past and shape the future. In both Rwanda and Cambodia, the regimes currently holding power played pivotal roles in liberating their countries from genocide. This is likely one of the major reasons these regimes still hold power and the loyalty of their people. However, in countries where deference to authority is of high societal value, individuals will see and value the example their leaders set in reconciliation efforts. In both Rwanda and Cambodia, though, it seems that denial and finger-pointing have become the official policies. If reconciliation is a “reconnecting of flesh to one another”, a major gap in the reconciliation efforts in both countries is a lack of humanity and humility on the part of their leaders.

C. The role of religion and culture

When seeking truth and reconciliation, cultural and religious paradigms influence the shape and success of the reconciliation process. Some cultures emphasize shame and blame, leading to avoidance of responsibility. Others may allow for, or even force, individuals to accept culpability for even the smallest transgressions. Some religions are based on an understanding of forgiveness, while others are based upon retribution. The

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cultural and religious constructions of community, forgiveness and healing significantly affect the way reconciliation happens, if at all, in the post-genocide context. In the Cambodian context, a Buddhist understanding pervades and the desire for vengeance and the belief in the power and importance of retribution takes precedence. In addition, society has accepted that most of the lower-level perpetrators were forced to commit their crimes, and would not expect a person who has done something that society has (at least superficially) accepted was not his or her fault to need forgiveness. Additionally, the Buddhist belief in karma and retributive suffering makes the reconciliation process incredibly challenging for survivors. Pol Pot and many other senior leaders of the Khmer Rouge have died of old age, and those who are alive but detained are often living in much better conditions than the survivors themselves due to the international standards applicable to the tribunal’s detention center. This creates serious dissonance for survivors looking for retribution against the perpetrators to come to fruition in this lifetime. In the case of Rwanda, forgiveness was seen as a necessary means of preventing a future genocide and of re-integrating perpetrators back into society. Otherwise, a large percentage of the small, developing nation’s population would be sitting, unproductive, behind bars, leaving scores of children parentless and fueling economic divides. Additionally, the process of forgiveness requires the participation of both the survivor and the perpetrator, creating even the thinnest connection between them once again. Not only is this process important for a survivor to gain peace of mind and an understanding of the truth, but also for the perpetrators, who, as they get released, must once again live in the communities which they betrayed. In addition to religion, other cultural factors are bound to affect the development of a meaningful reconciliation process. Both Cambodian and Rwandan cultures are face-saving cultures, where often a lie is expected and even preferred to the sometimes uncomfortable truth. This makes reconciliation efforts aimed at discovering the truth quite difficult to depend on. When survivors discover lies in what is supposed to be the truth-telling process, it is incredibly disturbing. And while hearing “I’m sorry” can be the start of a healing process, some survivors in Rwanda, and even more in Cambodia, are probably more likely to hear “I did it, but it wasn’t my fault”, which is a difficult truth to accept.

D. Political situation following the genocide

In both Cambodia and Rwanda, the international community has been criticized for being slow to act, or not acting at all, in intervening to help innocent civilians targeted and attacked by their own governments.16 However, perhaps reconciliation following such unthinkable violence as was experienced in both Rwanda and Cambodia necessitates an indigenous, highly personal response. Aside from the effects of the international                                                                                                                16 It is easy to infer that neither country represented a particular strategic interest to the major economic and military powers at the time.

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community’s response, the post-genocide regime’s governance style will also have a significant effect on the reconciliation process. Whether the government tolerates free expression and freedom of information, even on matters unrelated to genocide crimes, will affect the success of the reconciliation process. In reviewing the cases of Rwanda and Cambodia, it becomes quite clear that the post-genocide political situation in the country plays an important role in moving the reconciliation process forward. In Cambodia, the Khmer Rouge retained control of a portion of the country into the 1990s, and was even officially recognized as the governing party of Cambodia at the UN until 1990.17 This in addition to the long time period the regime was in power and the extreme nature of its governance goes to show that the international community was not particularly concerned about intervening in the atrocities in Cambodia.18 At least initially, Cambodians were left alone to investigate, name and adjudicate the injustices they suffered, and this aloneness could have contributed to a reluctance among Cambodians to engage in the reconciliation process.19 It was not until 1997 that the Cambodian government invited the UN to assist in trying the senior leaders of the Khmer Rouge, not until 2003 that the hybrid tribunal was created, and not until 2010, 31 years after the Khmer Rouge fell, that the first judgment was finally rendered.20 In the case of Rwanda, the international community has been criticized for not intervening to stop the genocide against Tutsis in 1994.21 However, immediately following the genocide, the international community did recognize the gravity of the crimes and created the International Criminal Tribunal for Rwanda (ICTR) in November of 1994.22 In Rwanda, the international community’s response being too little and too late may have bred seeds of resentment which are still evident today. Rwanda often takes a tough stand against accepting foreign aid and intervention that comes with too many conditions, and it seems that in some ways, Rwanda has chosen aloneness.23

                                                                                                               17 Cambodia (Kampuchea), Government, http://www.countriesquest.com/asia/cambodia_kampuchea/ government.htm (last accessed 15 June 2011). 18 Many journalists and scholars did report on the crimes as they were happening. Compare, e.g., CAMBODIA: Long March from Phnom-Penh, 19 May 1975, page 2, TIME.com (last accessed on 28 June 2011) (“Another foreign observer called the exodus ‘pure and simple genocide. They will kill more people this way than if there had been hand-to-hand fighting in the city.’”) with Noam Chomsky, Distortions at the Fourth Hand, The Nation, 6 June 1977 (“the “slaughter” by the Khmer Rouge is a Moss-New York Times creation”). 19 See Section IV.D.1 (on Renakse petitions) and Section IV.C (People’s Revolutionary Tribunal). 20 See Introduction to the ECCC, Extraordinary Chambers of the Courts of Cambodia, http://www.eccc.gov.kh/en/about-eccc/introduction (last accessed 14 June 2011). 21 And, in the case of France, through its Operation Turquoise, possibly actually attempting to prop up the genocidal regime in the waning days of the genocide once the RPF began to take control of the country. See Chris McGreal, France’s Shame?, The Guardian, 11 January 2007, available at http://www.guardian.co.uk/world/2007/jan/11/rwanda.insideafrica. 22 U.N. Gen. Assemb., S/RES/955, 8 November 1994, available at http://www.un.org/ictr/english/Resolutions/955e.htm. 23 See, e.g., UN investigating DRC war crimes, as Rwanda denies involvement, Rwanda News Agency, 27 November 2008, available at http://www.rnanews.com/archives/634-un-investigating-drc-war-crimes-as-rwanda-denies-involvement,  Rwanda expels German Ambassador, Aljazeera, 12 November 2008, available at http://english.aljazeera.net/news/europe/2008/11/20081111133433222362.html.

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In addition to the political influences in these countries following their respective genocides, the reconciliation process is also influenced by the application of domestic law. In Rwanda, some quite infamous legislation exists which severely punishes the crimes of “genocide denial”,24 “genocide ideology”25 and “divisionism”.26 Significantly, the first two “fundamental principles” of the government in the Rwandan constitution are “fighting the ideology of genocide and all its manifestations”, and the “eradication of ethnic, regional and other divisions [. . .]”.27 In a country healing from a brutal genocide, such principles seem very reasonable, and even desirable. However, some critics have argued that these laws have been used to control the dissemination of information that does not fit into the official version of the truth about the genocide.28 This fact casts a shadow on many of the reconciliation efforts because some individuals in society may not feel free to speak their truth insofar as it diverges from the official truth. In Cambodia, individuals also suffer from extreme limits on their rights of free expression,29 but these restrictions do not seem to be applied to speech related to the Khmer Rouge or the Democratic Kampuchea period.30 Rather, the relevant provisions of the Cambodian Penal Code have instead been used to silence critics of the current regime in Cambodia.31 This strict control of speech which criticizes the government could certainly have a direct effect on reconciliation efforts, especially because the current regime is comprised of some former Khmer Rouge cadres, and also because of the regime’s tenuous relationship with the UN tribunal.32 Rwanda and Cambodia necessarily had to develop their own approaches to reconciliation which fit their particular countries, cultures and situations. In fact, in both cases, the international community had not been involved in helping to stop the atrocities, so it is                                                                                                                24 Law n° 33bis/2003 repressing the crime of genocide, crimes against humanity and war crimes. 25 Law n° 18/2008 of 23/07/2008 relating to the punishment of the crime of genocide ideology. 26 Law n° 47/2001 of 18/12/2001 on prevention, suppression and punishment of the crime of discrimination and sectarianism. 27 Constitution of the Republic of Rwanda of 04 June 2003 as amended to date (2010), Article 9. 28 See, e.g., Aprille Muscara, Genocide Ideology and Sectarianism Laws Silencing Critics?, International Press Service News Agency, 31 Aug. 2010, available at http://ipsnews.net/africa/nota.asp?idnews=52678. 29 Cambodian Penal Code (2009), Article 305 (criminalizing defamation without having to prove malice or falsity), 307 (penalizing insults against people and institutions), 311 (known false statements which could result in disciplinary actions against the person being defamed). 30 Although some genocides were perpetrated during the Khmer Rouge period, no overt examples exist that seem to prove that the population as a whole still holds or ever did hold a belief that minority groups should be eradicated. Instead, these genocides seemed to be driven by the beliefs of Khmer Rouge leaders that the survival of minority groups would confound their aim of creating a conformist society. 31 See, e.g., Cambodia Gagged: Democracy at Risk?, Article IX/Cambodian Center for Human Rights (2010), page 35, (“Teachers, students and workers that have criticised the RGC have been threatened, intimidated and even imprisoned [. . .]”), page 40 (“Tactics of intimidation, harassment, threats and legal charges continue to be used to silence dissenting voices and criticism of governmental policies.”), available at http://www.article19.org/pdfs/publications/cambodia-gagged-democracy-at-risk-.pdf. 32 For example, Prime Minister Hun Sen proclaimed that investigations would cease after Case 002, which was seen by many as overt political interference in the judicial process. Cheang Sokha, Hun Sen to Ban Ki-Moon: Case 002 last trial at ECCC, Phnom Penh Post, 27 October 2010. However, it must also be noted that the national co-Prosecutor also did not agree with her international counterpart’s decision to pursue investigations in further cases. See International Co-Prosecutor’s Written Statement of Facts and Reasons for Disagreement Pursuant to Rule 71(2), 20 November 2008, Doc. No. 1.

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easy to see why the post-genocide governments were not overly anxious to involve the international community in the reconciliation processes. Necessarily, the political and legal climates had an effect on how those reconciliation efforts proceeded, and particularly, the over-zealous application of free expression laws, which can hinder truth-telling and hamper the reconciliation process.

E. Conclusion While no formula exists to create the ideal reconciliation model, the contrast of the Rwandan and Cambodian genocides reveals much about the factors that are likely to influence the success of reconciliation in a given context. In order to reconnect with one another, these societies must understand exactly who they are disconnected from, what disconnected them and what reconnecting might actually look like in their cultural context. And finding out the truth of what happened is at the basis of this reconnecting. IV. The post-genocide justice process in each case A. The importance of truth in the reconciliation process Many reconciliation movements, from small NGOs to official government institutions, have recognized the role that truth can play in serving both therapeutic and legal functions, taking on not only a punitive function, but also a restorative function and serving as the basis for rebuilding personal connections and community.33 “Truth-hearing represents a vital means to healing, as people seek freedom from their ignorance of past events.”34 As one Rwandan genocide survivor explained, “truth frees us from the weight we have carried around since the genocide. [. . . I]t allows us to [. . .] learn to live together again [. . .]. [After learning the truth,] I will feel as if all these things have finished and life will start again.”35 This article will now turn to some of the different experiences and initiatives undertaken by the justice sectors and civil society in both Rwanda and Cambodia that have contributed to the elusive but essential concept of reconciliation. Learning from these other experiences and taking into account the factors examined above should help in the building of successful reconciliation models in other countries and contexts in the future. As one convicted perpetrator from the Rwandan genocide stated, “Reconciliation doesn’t come from the sky. It comes bit by bit. It means living together, saying sorry, asking for forgiveness. It is much more than words—it is actions.”36                                                                                                                33 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Cambridge University Press (2010), pages 186-187. 34 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Cambridge University Press (2010), page 198 35 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Cambridge University Press (2010), page 90. 36 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Cambridge University Press (2010), page 112.

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B. UN involvement In both Rwanda and Cambodia, the UN stepped in at various points in the post-genocide process, with varying degrees of reception from the local populations and governments. In the case of Rwanda, the government initially sought the UN’s assistance in developing a tribunal, but it actually cast the only vote opposing the creation of the ICTR as it exists today.37 The tribunal was located outside of the country for a number of reasons, including suspect and witness safety, the fact that the country’s infrastructure was in tatters and the justice system was not functioning, and the perception that the government would not allow genocide suspects to be tried fairly. In the end, the UN imposed its idea of justice upon the government and the population, and arguably “deprived the current government of legitimacy at a critical time.”38 One of the major problems with international tribunals, and particularly ones held wholly outside the concerned country’s justice system, is the “lack [of] accountability and perceived legitimacy in relation to the victim population since [international tribunals] often respond most readily to their patrons—the international community—and only incidentally to victims.”39 Some Rwandans feel that, “by undergoing trials hundreds of miles away in Arusha, high-level perpetrators avoid direct confrontation with the communities against whom they committed genocide crimes and therefore receive insufficient justice.”40 From the international community’s perspective, the completion of the criminal justice process is a measurable outcome to be achieved, whereas culturally, reconciliation is a less measurable and more theoretical goal. The pull between the survivor’s experience and the international community’s obligations is quite clear in the Rwandan case. Opinions about the tribunal range from contempt to neutrality to appreciation. The Rwandan government apparently “views the ICTR as an expensive, ineffective institution that has little relevance for the population because it is so geographically removed, based in Tanzania, and because little justice has been carried out there [. . .]. President Kagame argues that the ICTR ‘has performed very poorly and consumed huge amounts of resources for doing very little [. . .]’”.41                                                                                                                37 Timothy Longman, Trying Times for Rwanda: Reevaluating Gacaca Courts in Post-Genocide Reconciliation, 1 August 2010, Harvard International Review, available at http://hir.harvard.edu/law-of-the-land/trying-times-for-rwanda?page=0,1 (Rwanda objected to “the lack of the death penalty, the ICTR’s location outside Rwanda, and especially the ICTR’s primacy over Rwandan courts. The relationship between the ICTR and the Rwandan government has been tense ever since.”). 38 José Alvarez, Crimes of States/Crimes of Hate: Lessons from Rwanda, 24 YALE J. INT’L L. 365, 402-403 (1999). 39 Lindsey Raub, Positioning Hybrid Tribunals in International Criminal Justice, International Law and Politics, Vol. 41, 1013, 1020, 2009, citing José Alvarez, Crimes of States/Crimes of Hate: Lessons from Rwanda, 24 YALE J. INT’L L. 365, 410 (1999). 40 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Cambridge University Press (2010), page 166. 41 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Cambridge University Press (2010), page 136.

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Arguably, the ICTR could never have been a complete solution for reconciliation because it only took jurisdiction over a discrete set of high-level perpetrators,42 whereas Rwandans took a very broad view of defining who a perpetrator was. In addition, the western notion of a criminal trial was not sufficient to meet the cultural notion of reconciliation, which, like many other functions of Rwandan society, demands an opportunity for all affected persons to be given a forum to state their opinions. A formal adjudication process held in another country did not satiate the Rwandan cry for justice. The Cambodian experience, by contrast, is a more modern embodiment of the UN tribunal concept, the hybrid tribunal. “Hybrid tribunals present unique options in response to the criticisms lodged against purely international trials, and their flexibility allows them to incorporate the strengths of preceding international criminal judicial institutions while adjusting to the specific needs of a particular situation, including, significantly, the needs of the victim population.”43 The hybrid tribunal was a viable option in Cambodia because of a number of factors not present in the Rwandan situation, including a longer lapse of time between the crimes and the commencement of the trials, which leads to a less volatile public response, less threats to witness safety, and a more functional local justice system. In addition, the Cambodian government invited the UN to help it create the tribunal and at least initially supported the efforts by providing office space and other logistical support to the tribunal. However, this does not mean that the Cambodian government has always endorsed the tribunal’s actions, and many times, cultural misunderstandings have led to divisive issues: even among tribunal staff, a palpable separation can be sensed between the national and international staff members.44 In Cambodia, the more narrow definition of who is a perpetrator makes a small number of formal criminal trials a more viable step toward reconciliation. However, the western notion of a trial has not proven to be foolproof in the Cambodian context. One of the accused persons in Case 002, Ieng Thirith, has had a number of strange and religiously charged outbursts,45 leading not only to confusion and pain to the victims, but also procedural irregularity in the proceedings. Another example is Case 001, where the accused person, Duch, was known for his repentant attitude and his cooperation with the court. During the closing statements, his international co-lawyer highlighted all these points, pleading for leniency. However, Duch’s Cambodian co-lawyer pleaded for acquittal, saying Duch was not one of the senior leaders of the Khmer Rouge over whom the court had jurisdiction. When the Accused was asked directly in an extraordinary

                                                                                                               42 S/Res/955, 8 November 1994, Article 2. 43 Lindsey Raub, Positioning Hybrid Tribunals in International Criminal Justice, International Law and Politics, Vol. 41, 1013, 1017, 2009. 44 One example of a situation which drove a wedge between the national and international staff at the tribunal was that Cambodian staff members were expected to give kickbacks out of their salaries, which was accomplished by handing out paychecks and empty envelopes on payday, done openly in front of international staff. See, e.g., John Hall, Corruption Charges Threaten Khmer Rouge Tribunal, New America Media, 16 Aug. 2008, available at http://news.newamericamedia.org/news/view_article.html?article_id=6a5ca66d51bb985c375a306e0a60271f 45 See, e.g., T. 24 February 2009, Case No. 002/19-09-2007-ECCC-OCIJ/PTC02, at page 48 (“don’t accuse me of murder or you will be cursed to the seventh level of hell.”).

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procedural act whether he was pleading guilty or not guilty, he unequivocally sided with his Cambodian co-lawyer.46 The individuals who had joined the case as Civil Parties were distraught, confused and in tears at this startling statement.47 While it must be noted that the accused persons at the Khmer Rouge Tribunal are given wide privileges to testify on their own behalf, these examples show the failures of the judicial forum in adjudicating crimes such as genocide. They also reveal how the survivors of such senseless atrocities can be re-traumatized through their participation in the judicial process. These examples show the clash between truth-telling and the effects of cultural mores such as face-saving, illustrating the wide-sweeping effects cultural and religious factors can have upon reconciliation. C. Domestic judicial, quasi-judicial and non-judicial responses  Neither Rwanda nor Cambodia accepted the UN tribunal as the complete solution for justice and reconciliation, but instead developed domestic judicial responses and civil society initiatives to further the reconciliation process. In a number of the judicial and quasi-judicial initiatives developed in Rwanda and Cambodia, the theme of a communally negotiated and validated version of the truth emerges. It seems that the process of remembering together and creating a mutually-agreed upon version of events is a significant part of the healing and reconciliation process. This, it seems, is a part of memory, and “a society cannot know itself if it does not have an accurate memory of its own history.”48 1. Ad hoc judicial responses Immediately when the Khmer Rouge fell after its brutal 4-year reign, Cambodians cried out for justice. The People’s Revolutionary Tribunal tried Pol Pot and Ieng Sary in absentia, and in August 1979, both were convicted and sentenced to death.49 Many other potential perpetrators were not tried or incarcerated for a variety of reasons, including the difficulty of defining who a perpetrator actually is in the context of Democratic Kampuchea. Instead, all the efforts of justice were aimed at Pol Pot and his clique. In 1996, Ieng Sary was pardoned, and in April of 1998, shortly after being placed under house arrest, Pol Pot died in his home in Anlong Veng.50

                                                                                                               46 T. 27 November 2009, Case No. 001/18-07-2007-ECCC/TC, at pages 60-62. 47 The author of this article was part of the team of lawyers representing a group of Civil Parties at the tribunal and witnessed their reactions during the statements and was present at their debriefing immediately following the hearing. 48 Youk Chhang, DC-Cam Director, Homepage, Documentation Center of Cambodia (DC-Cam), http://www.dccam.org/ (last accessed 17 June 2011). 49 Amy Gordon, The Renakse Petitions: Background and Suggestions for Future Use, DC-Cam, page 1, available at http://www.dccam.org/Projects/Tribunal_Response_Team/Victim_Participation/PDF/Renakse%20by%20Amy.pdf. 50 Pol Pot dead, 16 April 1998, BBC News, available at http://news.bbc.co.uk/2/hi/asia-pacific/78981.stm.

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Arrests and domestic trials also began in Rwanda immediately after the genocidal regime was toppled. In April of 1998, Rwandan officials publicly executed 22 individuals convicted of genocide crimes.51 However, due to the nature of the crimes and the definition of who a perpetrator is in the Rwandan context, Rwanda’s prisons, which at the time had a capacity to hold just 45,000 detainees, were buckling under the weight of 120,000 detainees. While some trials were moving forward, it would have taken over 100 years to try all the suspects at the rate the justice system could bear at that time.52

2. Renakse Petitions (Cambodia) In October of 1982, the People’s Republic of Kampuchea (PRK), the then-ruling party in Cambodia, established a Research Committee to investigate the crimes of the Pol Pot regime.53 The Committee accomplished its mandate by traveling throughout the country and taking statements and petitions from Khmer Rouge survivors about the methods of torture and killing employed by the Khmer Rouge, the location of interrogation centers and mass graves, and the other forms of cruelty employed by the Khmer Rouge (e.g., forced marriage).54 The desire for a truth record was paramount among Cambodians in the wake of the devastating genocide. On 27 July 1983, the Committee issued a report55 detailing the number of deaths in each province, the profile of individuals who died and the causes of death.56 The report also provided details about the other atrocities committed by the Khmer Rouge, including methods of torture, permanent disabilities caused by the crimes, property that was destroyed, and targeting of ethnic and religious minorities.57 The evidence for the report came from over 1,000 petitions which were signed by more than 1 million people.58

                                                                                                               51 Jane Standley, From butchery to executions in Rwanda, 27 April 1998, BBC News, available at http://news.bbc.co.uk/2/hi/programmes/from_our_own_correspondent/84120.stm. 52 Gacaca Jurisdictions: Achievements, Problems and Future Prospects, PowerPoint Presentation, National Service of Gacaca Jurisdictions, slide 8, available at http://www.inkiko-gacaca.gov.rw/En/EnIntroduction.htm. 53 Amy Gordon, The Renakse Petitions: Background and Suggestions for Future Use, DC-Cam, page 1, available at http://www.dccam.org/Projects/Tribunal_Response_Team/Victim_Participation/PDF/Renakse%20by%20Amy.pdf. 54 Amy Gordon, The Renakse Petitions: Background and Suggestions for Future Use, DC-Cam, pages 2-3, available at http://www.dccam.org/Projects/Tribunal_Response_Team/Victim_Participation/PDF/Renakse%20by%20Amy.pdf. 55 Crimes Committed by Peking Expansionists and their Stooges—Pol Pot, Ieng Sary, Khieu Samphan—Against the People of Kampuchea in the Period from 1974 to 1989, No. 1051/83/NCC, published by the Council of the Front for National Solidarity, Reconstruction and Defense, Phnom Penh, (25 July 1983). 56 Amy Gordon, The Renakse Petitions: Background and Suggestions for Future Use, DC-Cam, pages 3-4, available at http://www.dccam.org/Projects/Tribunal_Response_Team/Victim_Participation/PDF/Renakse%20by%20Amy.pdf. 57 Amy Gordon, The Renakse Petitions: Background and Suggestions for Future Use, DC-Cam, page 4, available at

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The data included in the report was meant to warn of the “threat of resurgence of the Khmer Rouge”,59 who at that time still controlled a sizable part of the country, and also to “persuade the UN to deny recognition to the Khmer Rouge as Cambodia’s representative to the UN and to convince the UN and other countries to recognize the suffering of the Cambodian people and bring the Khmer Rouge leaders to justice”.60 The report was, at the time, unsuccessful in its aim of encouraging the UN to deny recognition of the Khmer Rouge as the rightful representative of Cambodia. However, it does show that one of the first priorities of Cambodians following the genocide was the discovery and memorialization of the truth.

3. Gacaca jurisdictions (Rwanda) History of Gacaca jurisdictions Around 1998, the Rwandan government realized it would be impossible to try all the genocide suspects through the conventional court system. Over 1,000,000 Rwandans were potential genocide suspects,61 but in the first 5 years after the genocide, only 6000 suspects had been tried and either released or convicted.62 The situation was unfair to suspects, survivors, and the community at large. A traditional dispute resolution mechanism called Gacaca was suggested as a potential solution to the backlog of cases. Historically, Gacaca had been an informal method of resolving disputes which arose in a given community. Male heads of households gathered to discuss the problems and debate a reasonable solution. Gacaca was not a legal forum, and the resolution of Gacaca cases was not aimed at punitive measures. In fact, prison sentences were not given at Gacaca. Rather, Gacaca proceedings and any punishments granted were “intended [. . .] to re-establish social cohesion, incorporating restorative processes that allowed individuals found guilty to regain their standing in the community.”63

                                                                                                                                                                                                                                                                                                                                         http://www.dccam.org/Projects/Tribunal_Response_Team/Victim_Participation/PDF/Renakse%20by%20Amy.pdf. 58 Youk Chhang, Renakse Records, 13 Searching for the Truth 9 (January 2001). 59 Amy Gordon, The Renakse Petitions: Background and Suggestions for Future Use, DC-Cam, page 4, available at http://www.dccam.org/Projects/Tribunal_Response_Team/Victim_Participation/PDF/Renakse%20by%20Amy.pdf. 60 Amy Gordon, The Renakse Petitions: Background and Suggestions for Future Use, DC-Cam, page 1, available at http://www.dccam.org/Projects/Tribunal_Response_Team/Victim_Participation/PDF/Renakse%20by%20Amy.pdf. 61 See, e.g., Rwanda/Genocide – One-tenth of the Rwandan Population Accused of Genocide, 3 April 2007, http://www.hirondellenews.com/content/view/9400/26 (last accessed 5 June 2011). 62 Gacaca Jurisdictions: Achievements, Problems and Future Prospects, PowerPoint Presentation, National Service of Gacaca Jurisdictions, slide 8, available at http://www.inkiko-gacaca.gov.rw/En/EnIntroduction.htm. 63 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Cambridge University Press (2010), page 52.

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At its core, Gacaca was a forum for truth-telling, restitution, and reconciliation. It was never necessarily based on concepts of retributive justice, or even any other basic legal principles or protections. Community participation in Gacaca is “not only [. . .] the modus operandi of Gacaca but more importantly [. . .] a valuable systematic expression of a Rwandan worldview of human identity as communally embedded and ‘truth’, both legal and non-legal, as a negotiated outcome reached via communal discussion in public settings.”64 The intent of Gacaca is to create a truth, and “[w]hatever ‘truth’ may be discovered in Gacaca will be reached through communal dialogue, not through the views of elites imparted to the population.”65 Truth then becomes agreed-upon by the entire community, validating the stories told and the outcomes reached, unifying and re-connecting society. Mechanics of Gacaca jurisdictions In 2002, Gacaca began in a pilot phase, and 11,000 Gacaca jurisdictions were formed at various administrative levels throughout the whole country in 2004.66 Gacaca had a defined jurisdiction, trying lower-level perpetrators, while those accused of the more severe crimes were tried before the national courts or the ICTR.67 Local communities elected Gacaca judges for their wisdom and reputation (called inyangamugayo in Kinyarwanda). Gacaca hearings were typically held outside in open spaces, meant to lend an air of transparency and emphasize public participation. The proceedings occurred without lawyers, prosecutors, or any other legal professionals, unless such practitioners happened to be members of the relevant local community where the Gacaca hearing was taking place. The sentencing scheme for genocide crimes is highly developed and orderly under Rwandan law,68 also minimizing the dangers of meting out punishment in a quasi-judicial forum moderated by individuals with little to no formal legal training.69 In this way, Gacaca furthered the aims of justice without necessarily embodying the traditional hallmarks of justice—at least from a western point of view.

                                                                                                               64 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Cambridge University Press (2010), pages 164-165. 65 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Cambridge University Press (2010), page 162. 66 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Cambridge University Press (2010), page 67. 67 Organic Law n° 16/2004 of 19/6/2004 establishing the organisation, competence and functioning of Gacaca courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994, (O.G special n° of 19/06/2004), Article 2. 68 See Organic Law n° 16/2004 of 19/6/2004 establishing the organisation, competence and functioning of Gacaca courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994, (O.G special n° of 19/06/2004), Articles 72-73, 75 (each category of offense corresponded to a punishment based on if and when the person confessed to the crimes alleged, with community service and reparations emphasized for the lowest levels of perpetrators). 69 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice Without Lawyers, Cambridge University Press (2010), page 78.

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In order to participate in the Gacaca process, a suspect must confess, which “entails a conscious decision by detainees to participate in the process [. . .]. Detainees convicted of crimes more severe than those they originally admitted will receive harsher penalties than suspects who confess fully at the earliest opportunity.”70 This necessarily limits the jurisdiction of Gacaca to those willing to confess to crimes, and likely excludes those who will be proven innocent. In fact, due to the slow speed of the conventional justice system at trying genocide crimes, even innocent suspects had an incentive to confess to the crimes they were charged with in order to get out of incarceration sooner. Accomplishments of Gacaca jurisdictions As Gacaca comes to a close, the question of whether Gacaca was a perfect solution to the reconciliation problem is now a moot point. Instead, the most productive questions are ones asking what can be learned from the Gacaca experience and applied in other scenarios. One Gacaca judge said the following regarding the benefits of Gacaca in comparison to the ICTR71:

In Arusha the big fish are there. The victims travel there but in Gacaca everyone is already here: survivors, perpetrators, judges. They are all here in the community. That is the difference. If we want prisoners to come, they come, they tell the truth, they apologise and ask for forgiveness. We can see if they are touched, if they are sincere. But in Arusha it isn’t possible for survivors to experience this. They can’t tell whether the accused are sincere. Those in Arusha haven’t asked for forgiveness. Those in Arusha have committed many crimes here, they should face us, the Rwandan family, but they avoid us by being there.72

Some observers and human rights activists view Gacaca as a failure, citing the lack of defense counsel and other supposed violations of procedural rights of the defendants. However, this type of criticism is at least partly due to the fact that “most non-Rwandan observers of Gacaca come from a legal background[, meaning] they tend to interpret Gacaca strictly as a judicial remedy to the legacies of the genocide.”73 However, Gacaca should not be viewed as a “court” in the western legal sense, but instead as an indigenously developed, extra-judicial remedy to an extraordinary situation. However, even when Gacaca is viewed as a quasi-judicial forum, some members of the population along with “the few commentators who address Gacaca’s contribution to peace argue that [Gacaca] is likely to increase discord between participants, particularly

                                                                                                               70 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Cambridge University Press (2010), pages 101-102. 71 The author of this quote refers to the ICTR as Arusha, the city where the ICTR is located. 72 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Cambridge University Press (2010), pages 166-167. 73 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Cambridge University Press (2010), page 92.

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between suspects and survivors and especially in the early stages of the process.”74 Although Gacaca began in a pilot phase in order to test its efficacy and functioning, very few adjustments were made in light of the experience of the pilot jurisdictions. Rather, the types of cases heard before Gacaca actually increased, and some procedural safeguards were sacrificed when Gacaca was implemented throughout the country.75 Many of Gacaca’s critics will say that the system which did not purport to be a court operated de facto as a court, and in the end “forfeited much of its restorative potential by overly focusing on retributive and deterrent justice.”76 Despite the criticisms of Gacaca, an important lesson that comes from Gacaca is the communal aspect of the trials, and the communally accepted and validated truth that resulted from the trials. Rwanda is a tiny country of close-knit communities and broad-spanning networks. Whether it functioned perfectly or not, Gacaca has formed a vital part of the reconciliation and peace-building process in Rwanda:

Justice at Gacaca is very important for reconciliation [. . .]. Justice at Gacaca is a form of state-controlled revenge, and this lessens the need for revenge by the community [. . .]. At Gacaca everybody is watching and talking. The justice at Gacaca is communal. It is not handed down by a judge. The way everyone takes part in doing justice at Gacaca means that reconciliation is possible.77

The reality of the Rwandan situation—that there was no possible way to try all genocide suspects in the traditional court system due to the sheer number of suspects and the dearth of legal professionals in the country—necessitated an extraordinary and expedient response. And because of Gacaca, suspects and perpetrators have both benefitted:

Many guilty suspects claim to have gained a sense of release from feelings of shame and dislocation by confessing to, and apologizing for, their crimes in front of their victims and the general assembly at Gacaca. Many survivors, on the other hand, claim to have overcome feelings of loneliness by publicly describing the

                                                                                                               74 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Cambridge University Press (2010), page 229 (emphasis added). 75 Compare Organic Law n° 40/2000 of 26/01/2001 setting up “Gacaca jurisdictions” and organizing prosecutions for offences constituting the crime of genocide or crimes against humanity committed between October 1, 1990 and December 31, 1994 with Organic Law n° 16/2004 of 19/6/2004 establishing the organisation, competence and functioning of Gacaca courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994. The 2004 law consolidated power in the Gacaca courts by doing away with the Gacaca courts at higher administrative levels (Article 4 in both laws), which had been hearing higher categories of crimes (Articles 39-42 of 2000 law), reducing the number of categories of offences from 4 to 3 (Article 51 of both laws), reducing the number of individuals on the bench from 19 persons (see Article 9 of 2000 law for the number of persons forming the “seat” of a Cell’s Gacaca court) down to 9 persons (Article 8 of 2004 law), and creating a very complicated, but in most cases, probably more protective, penalty scheme for minors (compare Article 74 of 2000 law with Articles 78-79 of 2004 law). 76 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Cambridge University Press (2010), page 246. 77 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Cambridge University Press (2010), page 248.

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personal impact of genocide crimes and receiving communal acknowledgement of their pain.78

In fact, Gacaca jurisdictions should not be held to the high standards of due process and fairness expected from ordinary courts of law. Gacaca should instead be seen as a reconciliation tool that incorporates some of the most significant aspects of Rwandan culture and the Rwandan perception of justice, while taking into account the difficulties brought about by the nature of the crimes and the number of perpetrators 4. Remembrance days Many countries that have experienced independence wars, genocides and other tragedies have national days of remembrance to commemorate the lives lost and celebrate the victories. In Cambodia, the liberation of the country from the Khmer Rouge occurred on 7 January 1979, so every year on 7 January, Victory Over Genocide Day (as it is often called in English) is celebrated. It is meant to commemorate the event without which “innumerable more Cambodian people would have lost their lives”.79 However, many individuals living in Cambodia have difficulty actually defining the meaning behind this holiday, and it seems to be a confusion of celebrating a military victory with an attempt to commemorate lives lost. Of course, the celebration of the military victory and the remembrance of lives lost are not necessarily divergent aims, but the fact remains that the day is not clearly a remembrance day, but is instead called a victory day. In its 1983 report, the Research Committee created by the PRK recommended that 20 May be declared a day of remembrance of the crimes committed by the Pol Pot regime.80 However, this recommendation has yet to be implemented. Some Cambodians argue against commemorating 7 January at all because to them it commemorates a Vietnamese invasion which ushered in a 10-year occupation of the country.81 What these other opinions on remembrance reveal is that the current political climate in Cambodia has essentially defined how the genocide shall be publicly and officially remembered: as a military victory. In Rwanda, the entire month of April is set aside as Remembrance or Memorial month (kwibuka in Kinyarwanda, which means “to remember”). The week following 7 April is the official week of mourning (icyunamo in Kinyarwanda, which means “mourning

                                                                                                               78 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Cambridge University Press (2010), page 194 79 National Holiday – Victory over Genocide Day – Thursday, 7.1.2010, The Mirror (Cambodia), Vol. 14, No. 646, 8 January 2010 (last accessed 13 June 2011). 80 Amy Gordon, The Renakse Petitions: Background and Suggestions for Future Use, DC-Cam, page 5, available at http://www.dccam.org/Projects/Tribunal_Response_Team/Victim_Participation/PDF/Renakse%20by%20Amy.pdf. 81 National Holiday – Victory over Genocide Day – Thursday, 7.1.2010, The Mirror (Cambodia), Vol. 14, No. 646, 8 January 2010 (last accessed 13 June 2011).

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period”), during which many public events and community meetings related to genocide issues occur. The memorial is celebrated in April because the genocide is considered to have begun on 7 April 1994, the day following the shooting down of President Habyarimana’s plane. On 4 July 1994, the RPF routed the genocidal regime and took power, so 4 July is also a public holiday called Liberation Day, although it is not nearly as significant as the April holidays. In addition to various activities throughout the month of April, including community meetings to allocate aid to genocide survivors, much of the population joins a public commemoration on 7 April, with a large gathering at the national stadium in Kigali, often lasting well into the night. At commemoration events, a number of genocide survivors give their testimonies about the tragedies they have suffered and if and how their lives have subsequently improved. In many other cities around the world with large populations of Rwandans, memorial events will also occur on 7 April. The different interpretations of commemoration adopted in the two countries reveal much about the process of reconciliation in each case. In Cambodia, Victory Over Genocide Day is celebrated on the day when the Khmer Rouge was defeated. In Rwanda, the Genocide Memorial Day is celebrated on the day when the genocide began. In Cambodia, the country dedicates one day to commemorate the fall of the genocidal regime. In Rwanda, the country almost shuts down for the week of 7 April, with many activities and meetings happening for the rest of the month (and some lasting until Liberation Day in July). The Cambodian celebration is arguably more politically focused, while the Rwandan memorial is arguably more victim-focused (although defining a victim is not without serious political implications in Rwanda82). In addition to the other political undertones in each case, the mere fact of which day is commemorated reveals in which context individuals will remember the genocide, and also speaks volumes about the official rhetoric of remembrance (and, possibly, truth). Perhaps the Cambodian case shows a regime focused on the future, while the Rwandan case shows a regime focused on the crimes of the past.

5. Documentation Center of Cambodia (DC-Cam) The Documentation Center of Cambodia is the leading organization working in the field of genocide prevention and truth in Cambodia. DC-Cam’s mission is to promote memory and justice, “both of which are critical foundations for the rule of law and genuine national reconciliation in Cambodia.”83 DC-Cam is the largest repository for documents and evidence related to the Democratic Kampuchea period. It is currently providing major support to all parties at the UN tribunal, and is in a constant process of cataloguing

                                                                                                               82 All official communications about the genocide in Rwanda will never use the term “genocide”, but instead will only and always use the phrase “genocide against Tutsis”.  83 History and Description of DC-Cam, DC-Cam, http://www.dccam.org/Abouts/History/Histories.htm (last accessed 17 June 2011).

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and digitizing documentary evidence so that it is easily accessible to Cambodians and other scholars. In promoting its aims of memory and justice, DC-Cam has implemented a countrywide effort to involve Cambodians in the trials occurring at the UN tribunal. DC-Cam has assisted individuals in joining the proceedings as civil parties,84 and has also ensured that Cambodians in rural areas have access to the proceedings, either through off-site screenings of hearings, or by bringing them to Phnom Penh to watch the hearings live. DC-Cam also began an educational component to its projects when it noted that the truth of the Democratic Kampuchea period was not being taught to younger generations. Reportedly, a 9th grade textbook from the year 2000 gave only the following information about the period:

From April 25 to April 27, 1975, the Khmer Rouge leaders held an extraordinary Congress in order to form a new Constitution, and renamed the country “Democratic Kampuchea.” A new government of the DK, led by Pol Pot, came into existence after which Cambodian people were massacred.”85

By 2002, all mention of the Democratic Kampuchea period had been removed from the curriculum because the section on modern history in textbooks had been torn out due to unrelated political in-fighting.86 Accordingly, DC-Cam has supported the development of an accurate, accessible textbook on the Democratic Kampuchea period to be used in schools throughout the country. DC-Cam has also spearheaded and supported some drama and video productions which provide survivor testimonies and also perpetrator perspectives. One play for which DC-Cam supported production, called “Breaking the Silence”,87 provides the audience with a number of plausible scenarios in which survivors come face-to-face with perpetrators and grapple with how to confront them, and possibly, forgive them.88 After a number of live performances, the drama proved so popular that it was recorded in Khmer language and has been broadcast over Voice of America radio numerous times since. Through its trial participation and education initiatives, DC-Cam furthers its aims of promoting memory and justice. Discovering and disseminating the truth is of vital importance to reconciliation efforts:

[b]y reconstructing a historical narrative of what happened to Cambodia, and by striving for justice where that is an appropriate remedy, we aim to lay a foundation

                                                                                                               84 The author served as a legal assistant to DC-Cam’s civil party group in Case 001 at the ECCC. 85 Genocide Education, DC-Cam, http://www.dccam.org/Projects/Genocide/Genocide_Education.htm (last accessed 17 June 2011). 86 Genocide Education, DC-Cam, http://www.dccam.org/Projects/Genocide/Genocide_Education.htm (last accessed 17 June 2011). 87 The play was sponsored by the Prince Claus Fund, the Embassy of the Kingdom of the Netherlands in Bangkok, and Theater Embassy, in Amsterdam. 88 Breaking the Silence: A New Cambodian Play, script by Annemarie Prins (2009), available at http://www.dccam.org/Projects/Radio/pdf/DCCAM_BREAKING_THE_SILENCE_%20FINAL.pdf.

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upon which all Cambodians can find firm footing in moving toward a better future. Reconciliation in Cambodia will happen one heart at a time. Cambodians cannot forgive one another until they know who to forgive, and for what.89

Reconciliation is a slow healing process, and re-connecting as a cohesive society through the search for truth seems to be at the heart of reconciliation. DC-Cam’s initiatives have reached millions in Cambodia with truth-focused and culturally appropriate responses, promoting memory and reconciliation following the genocide. 6. As We Forgive Initiative (Rwanda) As We Forgive is a Civil Society initiative based on a documentary film of the same name released in 2008. The major project of the initiative is a training program based on Christian principles of repentance, forgiveness and reconciliation. In a country where approximately 90% of the population identifies as Christian, a faith-based reconciliation model makes great sense, and has proven to be a great success. In fact, in Rwanda, forgiveness and reconciliation is of immediate concern as more and more detainees are being released and are returning to their communities whether following completion of their sentences or due to government policies to relieve overcrowding in prisons. The main program of the As We Forgive Rwanda Initiative is implemented through a screening of the film, which tells the stories of two genocide survivors as they confront the men who killed their entire families. The film, like the play mentioned above, provides Rwandans with examples of how to have conversations with individuals who have committed unspeakable atrocities against them and gives them a practical model of how to work toward reconciliation. Following the film screening, the program facilitators lead participants through teaching materials and discussions to encourage individuals to “engage reconciliation in their personal lives”.90 The As We Forgive Rwanda Initiative has now reached over 50,000 people, mainly through programs presented to students in secondary schools, perpetrators in prisons and church members. The organization also provides free copies of the film and materials to pastors and other church leaders, along with training on how to use them, to multiply its efforts at the community level. The program reflects the religious sensitivities of a predominantly Christian country, and the cultural practices of a country built of closely knit communities, providing a workable model to teach and encourage reconciliation in Rwanda. V. Conclusion: Truth as the Basis for Reconciliation

                                                                                                               89 History and Description of DC-Cam, DC-Cam, http://www.dccam.org/Abouts/History/Histories.htm (last accessed 17 June 2011). 90 Our Programs, As We Forgive Rwanda Initiative, http://asweforgive.org/our-programs/ (last accessed 20 June 2011).

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Through individual confessions and petitions for forgiveness, reconciliation occurs on the smallest scale: the offender and the offended agree upon a version of the events and make their peace with the crime in accordance with the circumstances, their religion and culture, and their personal choices. So perhaps reconciliation at a societal level means taking the individual experience of facing one’s perpetrator or victim and coming to a mutually-agreed upon version of the events and expanding that experience to involve the entire community in agreeing upon and creating the truth about the past. Truth in the context of genocide, however, is highly influenced by many factors. The motivations behind the crimes will influence the victim’s experience (“why me?”), and in some cases, the motivations may be so irrational, or so enigmatic, that the process is stalled as victims cry out for answers. The type of trauma, whether physically violent or emotionally violent, can also understandably influence the survivor’s memory of the events and ability to heal and move forward. Additionally, the characterization of who is a victim and who is a perpetrator will inevitably cause challenges in the pursuit of truth if these roles are not clearly defined. A survivor cannot forgive if she does not know who to forgive. And if a supposed perpetrator believes he was coerced or forced into committing the crimes, he may have difficulty believing that what he did was wrong, and in fact could also believe he is a victim himself. The influence of religion and culture will also have a major impact on the construction of truth. The definition of truth is itself culturally constructed. Some religions prioritize truth, confession, and repentance, while others do not. In some cultures, only an exact re-telling of events will constitute truth. In others, leaving out certain elements which are embarrassing or unsavory does not detract from the veracity of the statements. The political climate will also influence truth-telling in the context of reconciliation. Official versions of the truth will influence the community’s accepted version of the truth. Perhaps deviations from the official version of events will not be tolerated. In that case, which side of the current regime one falls on dictates whether he or she can speak the whole truth. In reviewing the post-genocide reconciliation efforts in both Rwanda and Cambodia, an interesting theme emerges: memory is communal, and truth is a communally-agreed upon version of past events. When designing reconciliation models and evaluating a community’s progress toward reconciliation, these major factors and their influence upon the communally-validated version of the truth must be of paramount importance. Because, perhaps communal remembering and creating of truth is precisely how reconciliation, the “re-connecting of our flesh to one another”, occurs.