The Rwandan government is playing some role in how the case has proceeded. Preparing for the case, U.S. prosecutors traveled to Rwanda, where government authorities helped to find witnesses and take depositions. In a later motion, the defense noted that "all of the government witnesses have participated in gacaca" -- a sprawling Rwandan system of community-level courts dedicated solely to genocide cases -- either as defendants, witnesses or victims," and the government's own list of evidence against Kobagaya includes "gacaca records gathered by the U.S. government in Rwanda."
According to Duke University professor Madeline Morris, a transitional justice expert who has advised the Rwandan government, Rwanda imprisoned about 80,000 people accused of genocide-related crimes in the immediate aftermath of the conflict. The country's existing court system would simply have been incapable of processing all of the accused genocidaires. "In the Rwandan context the problem of finding evidence was enormous," Morris said. "A lot of people where dead, a lot of documents were destroyed, and a lot of people who were arrested weren't identified." The Rwandan government was leery of using the country's courts to prosecute tens of thousands of suspects solely on the basis of eyewitness testimony. "I think that politically and internally within the Rwandan government there was a lot of ambivalence about what the results would be if people were actually able to use that law," she said.
The solution was to create a new court system altogether. "Gacaca courts were to be based on informal testimonies by local people, including people who had had personal involvement in the genocide," explained Ruth Wedgewood, a Johns Hopkins University professor and member of the State Department's Advisory Committee on International Law. The Rwandan government empowered ad-hoc community courts to try and sentence genocide suspects. But the gacaca "doesn't have any formal court procedure," said Wedgewood. "It doesn't exclude hearsay or have a professional fact finder. Even if local people try to be fair they might be highly impassioned and there are no checks and balances."
The result is a system ripe for government abuse. The gacaca courts were forbidden from trying Tutsis, even though some Tutsi militia leaders massacred civilians both during and after the genocide. And, said Wedgewood, it "appeared more and more frequently that Kagame was trying to attack his enemies" through the court system. If a political opponent seemed potentially threatening, the Kagame government could accuse him of trivializing or denying the genocide, or of using the memory of the genocide to stir up ethnic division. Defense motions cite at least one case of a gacaca witness later being prosecuted as the result of supposedly "divisionist" court testimony. The defense has claimed that the U.S. prosecutor's reliance on Rwandan witnesses, who come from a country with limited free speech and gave their testimony as part of a dubious gacaca justice system, , amounts to a kind of witness tampering and a denial of Kobagaya's right to due process.
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It's not terribly surprising that the U.S. government's case depends on gacaca witnesses produced with the help of the Rwandan government. Investigating Kobagaya's case would likely have been prohibitively difficult or even impossible without going through the Rwandan government and justice system. But a U.S. courtroom is not a gacaca court, and the case raises the discomforting question of whether individual, small-scale responsibility for the Rwandan genocide is even provable by the American standard: beyond a reasonable doubt.
What if the answer turns out to be no? Despite the political and evidentiary challenges, basic moral and political necessity demands something more than just a blanket free pass for alleged lower-level perpetrators like Kobagaya -- especially in Rwanda, where, in the years immediately following the genocide, killers often lived side by side with survivors of the ethnic group they once victimized. The possible civil rights violations inherent in this case, both in the United States and Rwanda, are worrying. But so is the prospect of letting off a perpetrator of one of the worst mass killings of the 20th century.
This dichotomy between victor's justice and impunity might exist in Rwanda, but it doesn't have to operate in an American courtroom. Though the two crimes are difficult to separate entirely, Kobagaya is being tried for lying to the INS, and not for genocide. Judge Belot has tried to make the trial less about its political and moral context than about establishing what happened in Birambo in April of 1994. He has explicitly forbidden the defense from presenting a socio-historical theory of Kobagaya's prosecution, deciding that the role of the genocide in Rwandan politics is irrelevant in determining the defendant's guilt.
Of course, the possible role of the Rwandan government in intimidating witnesses is relevant, and the prosecution, in responding to the defense's motion to dismiss the case in January 2010, invited their opponents to use "the time-tested tool provided by the Constitution: cross-examination." In this small way, the American justice system -- a system where Hutu and Tutsi ethnic identities matter less than evidence and argument -- is giving the Rwandan genocide the kind of dispassionate, coldly judicial treatment that it has seldom received. Even the UN-sponsored International Criminal Tribunal for Rwanda has never prosecuted any Tutsis, according to Wedgewood.
Belot has tried to banish from his courtroom the larger debate over how and whether justice for the Rwandan genocide can be achieved. Yet the question lingers all the same. An American court presents an unprecedented test case for establishing personal culpability for the most notorious mass slaughter since World War Two. If Kobagaya is acquitted, justice for the Rwandan genocide might become a murkier concept than ever before.