Course: Genocide and Group Hostility
Module 4: Restoration
Moving forward after a genocide or mass atrocities is difficult, but possible. Doing so calls for restorative justice, legal processes, and non-legal accountability.
Combating impunity in the aftermath of genocide calls for the concrete use of different accountability measures. Both legal and non-legal avenues can and should be pursued, each with their own strengths and specific goals.
Restorative justice
Restorative justice aims to repair the harm done to victims after genocides or other mass atrocities. It also aims to provide a basis for mending the relationship between victims and perpetrators, or at least provide conditions for reconciliation. By bringing those harmed by crime or conflict and those responsible for the harm into communication, restorative justice enables everyone affected to remedy the harm done and find a way to peacefully coexist together. There are various models on how to do this.
Case presentation: The Rwandan genocide
Rwanda is an example of a country where both legal and non-legal measures have been used after its genocide in 1994. From international processes and tribunals to home-grown solutions, many of those involved with and affected by the genocide were given the chance to apologize, find peace, and mend relationships.
Like most countries on the African continent, Rwanda is diverse and complex, ethnically, linguistically, and religiously. As discussed in Module 1 – Genocide, ethnic conflicts between the Hutu majority and Tutsi minority have a long history, dating back to the time before Rwanda’s independence.
After the genocide in 1994, both the government and the population have contributed to ethnic reconciliation and reconstruction. Distinctions between Hutu an Tutsi are now largely dismissed, with Rwandans living as a united people.
Accountability strategies
Accountability is necessary to ensure that perpetrators are held responsible for their actions and that victims are granted justice. Successful and effective accountability measures can also help prevent future atrocities.
Legal Measures
Mass atrocities are crimes defined by the International Criminal Court, meaning that their prosecution requires strong legal approaches. National courts and laws bear the primary responsibility for preventing atrocities and prosecuting perpetrators, so below are examples of national-level measures relating to our main cases.
The International Criminal Court (ICC) is a permanent international tribunal established and governed by the Rome Statute. It is responsible for investigating and prosecuting individuals accused of committing the most serious international crimes, including genocide, war crimes, crimes against humanity, and the crime of aggression. Its primary goal is to hold perpetrators accountable and help prevent these atrocities from happening again.
Operating as a court of last resort, the ICC seeks to complement, not replace, national courts, stepping in when local jurisdictions are unable or unwilling to take action.
Case presentation: Accountability strategies in Rwanda
The International Criminal Tribunal for Rwanda (ICTR) delivered the first international conviction of a person for the crime of genocide. Since then, international tribunals like the ICTY (former Yugoslavia) have continued to prosecute those accused of atrocity crimes.
The ICTR was an ad-hoc tribunal with a specific mandate limited to Rwanda, separate from the permanent ICC. The ICTR was created by United Nations Security Council Resolution 955 in 1994, distinct from the ICC, which was established under the Rome Statute.
Rwanda employed different types of courts to prosecute the people involved in genocide, such as its national court system and its Gacaca courts.
Gacaca courts were based on traditional forms of Rwandan justice. Local communities came together and created grassroots courts. Gacaca courts dealt with individuals who were remorseful for their involvement in the genocide.
The communities would come together to address the specific crimes of individuals. The individual would confess, accept responsibility, and apologize. Survivors and victims who were present were allowed to ask questions or talk about this individual’s impact on them. The community would then decide on a punishment for the individual.
The Gacaca courts processed almost two million cases for genocide before they closed in 2012.
Case presentation: The Srebrenica Genocide
Legal accountability is not sufficient to bring justice after atrocity crimes. Without comprehensive restoration processes, those harmed by atrocities and those who perpetrated them may not be able to live positively and move on.
Case presentation: The Yazidi Genocide
No international tribunals have been established for the prosecution of the people involved in the Yazidi genocide. Establishing such a tribunal would be difficult since Iraq is not a signatory state of the Rome Statute, meaning that the ICC cannot be directly involved. However, national courts, decisions, and trials for both perpetrators and victims (in Iraq and Germany) have taken place.
Women as actors for restoration and justice - Ashwaq's story
Ashwaq
Non-legal measures
The Genocide Convention obliges states to prevent genocide in more ways than just through judicial settlements. In non-legal measures, the requirements for evidence are not as strict compared to more comprehensive assessments of whether a genocide has taken place.
Documenting atrocity crimes is an important step towards accountability processes and restorative justice. Along with truth commissions and investigative bodies, documentation centers and initiatives aim to concretely understand what crimes happened, who perpetrated them, and against whom.
Here are some relevant to our case studies:
Gender-sensitive restorative justice
Even restorative justice can be gender-blind, avoiding the root causes and consequences of gender-based violence and discrimination. Comprehensive frameworks that recognize gender as a major component of mass atrocities can help avoid this.
In 1998, during the sentencing of Jean Paul Akayesu in the International Criminal Tribunal for Rwanda, rape was recognized for the first time as a weapon of genocide. This recognition was groundbreaking, leading to its definition in international criminal law.
Since rape and sexual violence is a common weapon used in conflicts and genocides, the aftermath they leave behind can include the conception of Children Born of War (CBOW). These children are often forgotten or mistreated due to their inherent association with their perpetrator’s actions and identity.
For instance, rape targeting Yazidi women by ISIS has led to women birthing children whose father’s faith is different from the Yazidi faith. In accordance with Iraqi legislation and local perspectives of parentage, the resulting child would belong to the father’s religion. The unwelcome pregnancy and its resulting child can often damage and split communities.
During the Rwandan genocide, mass rape and sexual violence was also used as a widespread tool of genocide. Along with infecting victims with HIV and damaging reproductive organs, forced impregnation of Tutsi women by Hutu fathers was an established goal, effectively contributing to the ethnic cleansing of Tutsis.
Restorative justice for women affected by sexual violence and their children born from perpetrators is multifaceted. Along with mental, physical, and social support, identifying the child’s father can grant victims the chance to face their assailant, as well as punishing the perpetrator for their actions.
Questions for reflection and discussion
- What role can restorative justice play in addressing the needs of both victims and perpetrators of genocide?
- In what ways may gender-sensitive restorative justice address violence in genocide and mass atrocities differently from other measures?
- What are the legal advantages and disadvantages of focusing on intent to classify acts as genocide?
- Case Discussion: Based on the cases discussed, what key insights and effective legal and non-legal measures can be identified for addressing concerns related to genocide and other mass atrocities? Consider all available resources, including relevant international and national rulings associated with these cases.
Additional Resources
Legal measures
- Nwoye, Leo C. 2016. “Transitional Justice and the ICC: Lessons from Rwanda.” In The International Criminal Court and Africa: One Decade On, edited by Evelyn A Ankumah, 549–92. Cambridge: Intersentia. (link)
- Kottou, Eva. 2022. “International Criminal Court Addressing the 1994 Rwandan Genocide in 2022: Is It Too Late for Justice?” The Yale Review of International Studies, November. (link)
Non-legal measures
