다원주의적 사법을 통한 이행기 정의와 초국가적 인권의 실현 - 르완다의 제노사이드와 가챠챠(Gacaca) 법원에 대한 논의를 중심으로 -

Abstract

The question regarding the appropriate mode of justice systems in massive human rights tragedies is difficult when the violation is deeply related in complex context of culture, ethnicity, and politics. In the case of Rwandan genocide, the question becomes more difficult because of historical background of colonization. Considering that the social structure, which influenced Rwandan genocide, was established by the European colonist powers, it is hard to determine who should bear the responsibility, diluting the sharp distinction between the perpetrators and the victims. Moreover, individual accountability is hard to be claimed because of the mass-participatory characteristic of the genocide. The goals of transitional justice, redressing massive human rights violation, encompass the following perspectives: i) ending the vicious cycle of ethnic violence; ii) promoting human rights and the Rule of Law; iii) giving official acknowledgement of ‘what actually happened’ and publicly assuring that ‘justice will be done’; and iv) constructing a new national identity. These objectives might be summarized as “a balance of justice and reconciliation.”As one of the measures, the ICTR has succeeded in punishing leading genocidaires. However, it has several deficiencies, such as slow proceedings, diplomatic/political influence, and long distance from Rwandan local communities. Also, the most critical point is its lack of accessibility, cultural relevance, and participation of Rwandan people, who are the immediately interested parties. Without substantial connection with Rwandans, the ICTR becomes merely symbolic institution. Also, the different notions of guilt or legal terms/concepts might be problematic during the testimony process of Rwandan witnesses. Because of these shortcomings, which are detrimental to credibility of the ICTR’s judgments, the reasoning behind the move to the Gacaca courts seems to be valid. As a practical matter, the Rwandese government had to solve the problem of massive amount of prosecutions, considering that speedy trial is one of the important legal rights. However, more fundamentally, the Gacaca courts, as the Truth and Reconciliation Commission in South Africa, were devised to create a comprehensive picture of the past abuses and to promote reconciliation in conflict-torn society for the future. Even if the traditional Gacaca has dealt with minor disputes, it might be suitable for the genocide case, especially when we focus on the value of reconciliation. The philosophy of the Gacaca is based on restorative justice, promoting recovery and reconciliation among community members. Facilitating reconciliation processes among ethnic groups is a joint task of community. Therefore, active participation during the Gacaca courts’ proceedings might be described not as rights but as duties. Generally, numerous indigenous dispute resolution processes in Africa are rooted in restoration and reconciliation. On the contrary, given the adversarial nature of proceedings, western official courts are generally based on zero-sum game, clearly dividing the winner and the loser. The ultimate objectives of the native court, as an autonomous and informal mechanism, include harmony, equilibrium, and peace. Therefore, the Gacaca judge’s role is more like an ‘advisor,’ a ‘mediator/arbitrator,’ or a ‘healer,’ trying to be a good listener to derive the essence of conflict and to arrive at reconciliation. Therefore, the problem of untrained judge’s incompetence might not be that serious problem as criticized by Amnesty International. The question whether the Gacaca judges are competent is not easy to be answered, when we consider the objective of reconciliation. For this matter, the Gacaca judges, who share the same cultural/historical context with Rwandans, might be more competent than the ICTR judges, who presumably cannot even understand the local language of Rwanda. Also, at local forum of Gacaca, where globalization and localization of human rights are merged, the Gacaca judge works as a translator, interpreting international human rights norms into local settings. Moreover, through the Gacaca procedures, survivors might experience healing processes of the wounds of the genocide. In this respect, the Gacaca courts might promote the philosophy of therapeutic justice and victimology as well. Furthermore, genuine meaning of reconciliation and healing can be achieved through continuous communication among community members in public forums. Therefore, ensuring certain procedural rights of all participants is an essential prerequisite for justification and legitimacy of the Gacaca. Thus, Amnesty International’s recommendations regarding fair trials should be respected. Conclusively, from the pluralistic perspectives, it seems desirable that various forms of justice systems—international/transnational criminal justice, domestic criminal justice, and alternative justice systems—might work in combination running parallel to each other.