Rwandan state authorities are wrestling with a crucial decision that could push Rwanda down the slope toward a repeat of the 1994 bloodbath, or break a deadlock that has paralyzed reconstruction in Rwanda and prevented the repatriation of refugees.
At issue is a draft law on genocide, accepted by the Cabinet on April 5. After months of wrangling, it was approved by parliament. Now it has to be endorsed by the constitutional court. Only then can it go to the president for signature and become law of the land.
With each stage, the prospects for this law are improving. But it is not yet a done deal, and until it passes, genocide will remain an emotive, ill-defined accusation used to justify the imprisonment of Rwandans without charge. This prevents the rebuilding of Rwanda's shattered justice system, alarms donor governments who insist on the rule of law as a precondition for aid, and deters 1.4 million Hutu refugees from returning home.
Why, then, the opposition to the law? One answer is found inside the remains of the small church at Ntarama, in Central Rwanda. Late in April 1994, hundreds of desperate Tutsi civilians sought refuge there from marauding Hutu militiamen. Eventually, the killers arrived, surrounded the church, tossed grenades through the windows, and finished off survivors with machetes.
Today Ntarama serves as a macabre shrine to Rwandans who died in the 1994 genocide. The floor is still littered with bones, clothes, and books. A visitor is left with the conviction that those responsible must be punished to the fullest extent of the law. There can be no compromise.
Unhappily, it rarely works out that way, even for a crime as grotesque as genocide. Slowly, this has dawned on Rwandans. Their reaction veers between revenge and pragmatism. Revenge appears to have been driving the prison policy. Rwanda's overcrowded jails now hold more than 85,000 suspected genocidaires, none of whom have been charged. In recent weeks, several prisoners have died of suffocation and others have been killed in an attempted breakout.
Pragmatists such as Paul Kagame know this is unacceptable and costs Rwanda international support. But they are also listening to friends who barely survived the massacres and now see the Hutu killers receiving international food aid in the refugee camps of Zaire and Tanzania.
The survivors in Rwanda have no wish to compromise, yet they also know there really is no alternative. Unlike the Nazi Holocaust, which was conceived in secret by Nazi leaders and carried out in isolated death camps, the Hutu militia leaders in 1994 tried to spread responsibility among so many villagers that there may have been as many as 100,000 murderers. Nor could there be any mistake about motive.
No society could mount an adequate response to a crime of this magnitude, least of all Rwanda. Only 12 of the country's 800 judges survived the massacres, and although aid programs have trained another 300, there are still not enough judges to prosecute common criminals, let alone genocidaires. The prosecutors' offices are even more impoverished.
Other countries emerging from civil war or dictatorship have faced a similar dilemma: how to design a punishment for past abusers that does justice to the crime while still being manageable. The Rwandan government wrestled with the question for weeks before finally unveiling the draft law on April 5.
The current draft proposes to give all but the architects of the genocide a real incentive to confess. Those who planned genocide, or killed more than 50 people, will face the death penalty. But anyone who comes forward and confesses to having killed fewer than 50 people will only be liable for between seven and twelve years in jail. Those who confess to rape and other violence could serve for fewer than three years. Finally, destruction of property, acts of arson, or theft of cattle will be dealt with as a civil rather than a criminal offense. Victims will be able to sue for damages.
It's easy to gloss over the extraordinary implications of this law. In the interests of reconciliation, it proposes that a Hutu mass murderer who methodically killed 49 people will be treated with greater leniency than a battered Tutsi wife who kills her abusive husband (a crime punishable by death under Rwandan criminal code).
Anyone who has visited Ntarama might question whether justice is being served. Remembering how Tutsi women were gang-raped and impregnated by Hutu militia, and how the unwanted babies were abandoned by their frantic mothers, they might raise an eyebrow at allowing self-confessed rapists fewer than three years in jail. It is also unusual for arson to be deemed a civil offense in a country so poor that there is little chance of compensation.
Nonetheless, this is what Rwanda's donors have demanded as a price for reentry into the family of nations. Yet having chosen this route, the donors had better deliver. It won't do to build a few new prisons and send out more missions. What's needed is a whole-hearted, generously-funded international plan to track down genocidaires wherever they may be, and ensure that they cooperate with the International Criminal Tribunal in Arusha or the Rwandan government.
Inside Rwanda, the UN should launch a large scale program of training for judges, police, and prosecutors, funded by the World Bank. The bank makes much of its commitment to reconstruction; here's a chance to show that this concern extends beyond strategic Western priorities.
Anything less could have disastrous results. Convinced that their compromise has been in vain, survivors in Rwanda could still kill the draft genocide law. We might then be treated to the spectacle of suspected genocidaires being tried before hastily convened courts and executed. Such state-sanctioned revenge would be infinitely worse than even partial justice. It would also compound the crime of Ntarama.
*Iain Guest is a senior fellow at the US Institute of Peace in Washington. He visited Rwanda in March.