A reappraisal of the abandoned Nuremberg Concept of criminal organisations in the context of justice in Rwanda

Abstract

It has become fashionable to be pessimistic about “Africa” and it is in the face of such pessimism that many African countries struggle to own the debate about their destiny. Rwanda felt let down by the international community when it awoke from the nightmare that consumed it in 1994 and found itself in ruins. Having failed to assist in preventing the genocide, the international community turned its attention to the question of justice, reintegration and reconstruction. Aid in various disconnected forms flooded into Rwanda but no basket fund was provided to encourage the country to pursue its own vision of justice. Although part of this vision was the establishment of an international tribunal, the one that grew up in Arusha was not the one that Rwanda requested. The vast number of individuals allegedly involved in the 1994 atrocities complicates the issue of justice in post-genocide Rwanda. Seven years have passed and 120,000 or so suspects are still in prison, many for their own safety. The International Criminal Tribunal for Rwanda (ICTR) aims to try only a handful of the key players. The burden falls on Rwandan courts to try the rest. It has been estimated that this task would take over 200 years if normal procedures were followed.6 Rwanda is applauded for its determination not to resort to an amnesty but at the same time criticized for failing to respect fully the rights of the accused.In 1996, Professor Schabas pertinently described this scenario as one of“searching for solutions to impossible problems”. The problem is essentially one of dealing with a form of mass criminality in the absence of any solid infrastructures apart from the ICTR. The ICTR was the first solution,but could never have been seen as a solution to the whole problem. The second solution consisted of a Rwandan law introducing a system of plea bargaining in exchange for lighter penalties together with a categorisation of perpetrators. In the face of a continuing impasse several years later,the Rwandan Government promoted a pioneering third solution, the so called gacaca solution. The decision to establish traditional tribunals to speed up the process of justice while simultaneously encouraging reconciliation represented a determined decision by Rwanda to decide its own destiny. Recognising that reconciliation should also be a national goal inits own right, Rwanda established a National Unity and Reconciliation Commission as a fourth solution. The Nuremberg solution to the situation of mass criminality during the Second World War, which took the form of the controversial concept of criminal organisations, was never seriously considered in the context of Rwanda. The aim of this article is to re-examine this concept and consider whether it could have fitted into the Rwandan equation. In other words,is there still a role for such a concept in modern international law and is it a help or a hindrance in situations in which enormous numbers of participants are involved in international crimes?

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ORCID for Nina Jørgensen: orcid.org/0000-0003-3499-8289

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