Duke University Alumni Magazine

Writing Rwanda's Future
War Stories
by Bridget Booher

Mass exodus: terrified Rwandans flee the country in 1994
Photo: Steve Lehman '87 / SABA

Instrumental in drafting legislation on criminal justice and victim reparation matters, law professor Madeline Morris has become an international authority on prosecuting war crimes
n a central African country slightly smaller than Maryland, hundreds of thousands of men, women, and children were systematically massacred in a fifteen-week reign of terror. Today, nearly three years later, the unspeakable horrors of the 1994 Rwandan genocide are being revisited as those accused of war crimes are brought to trial. Given the complexity of Rwanda's political history, the precarious nature of its current socioeconomic climate, and the enormity of the crimes committed, these prosecutions present extraordinary challenges. As in the former Yugoslavia and Ethiopia, the nature and extent of the Rwandan violence requires international scholars and government officials to formulate justice proceedings that are equitable yet manageable. But as those who are intimately involved in shaping such policy admit, it's a tremendously difficult mission.

     As advisor on justice to Rwandan President Pasteur Bizimungu, Duke law professor Madeline Morris is well aware of the obstacles facing the tiny, troubled country. Instrumental in drafting legislation on criminal justice and victim reparation matters, Morris says that the pending criminal trials are both actual and symbolic steps toward healing Rwanda's deep wounds. At the same time, she says, restoring any sense of normality will require a combination of time, monetary assistance, and good fortune.

     "When you look at the judicial situation, you have to realize that it's an enormous problem to be met with very few resources--financial, physical, or human--and that justice is only one problem in a country beset with huge problems. Justice is a particularly important and volatile issue because Rwanda has to somehow proceed to a peaceful co-existence of people who have reasons not to co-exist peacefully," she says.

     The killing fields of Rwanda are worlds away for most Westerners, whose impressions of the country are informed by news accounts and photographs of absolute desperation--orphaned children and abandoned homes, dying mothers and dire living conditions. But for Morris, who has made the twenty-three-hour trip to the capital, Kigali, nearly a dozen times in the past year, the specific tragedy of Rwanda is compounded by the fact that it is not the only place where genocide has occurred in recent history.

     At a conference she co-convened in Brussels, Belgium, last summer, Morris joined representatives from governments and non-governmental organizations, academic institutions, and United Nations agencies to explore the role of national and international criminal justice systems in places where mass violence has occurred. More than 200 people from twenty-six countries attended the conference, which was sponsored by the Duke Law School in conjunction with the office of the prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda.

Widespread loss: nearly every Rwandan lost a friend or family member in the genocide
Photo: Steve Lehman '87 / SABA

      As Morris notes in her summary of the conference, recent world events have made such multinational efforts imperative. "In the mid-1990s, we are witnessing national and international efforts at mass-crime prosecutions such as have not been undertaken since the aftermath of World War II," she writes. (Relevant to her Rwandan appointment, Morris is conducting a comparative study of contemporary judicial treatment of crimes in armed conflicts in the former Yugoslavia, Rwanda, and Ethiopia.)

     In the case of Rwanda, a peculiar combination of circumstances will make criminal prosecution an arduous task. First, there is the sheer volume of cases. More than 80,000 suspects are awaiting trial in Rwandan prisons, most for participation in genocide-related crimes. To complicate matters, nearly all of the country's judges were killed or fled during the 1994 massacres. Hundreds of prospective judicial personnel are being given a crash course in law, says Morris, but, for the most part, they are only receiving four months of training. "These people have minimal training and are trying literally the most serious crimes and some of the most complex cases."

     Some cases arising from the 1994 Rwandan genocide will be tried by the International Criminal Tribunal for Rwanda (ICTR) while the rest will be handled by Rwanda's national court system. As Morris explains in "Justice After Genocide: Rwanda," a report that will be reproduced in the forthcoming book War Crimes: The Legacy of Nuremberg, suspects tried in the Rwandan courts will be classified into one of four categories: from the most culpable in category one (leaders and organizers of genocide and perpetrators of particularly heinous murders or sexual torture) to the least culpable in category four (people accused of property crimes). Category-two and three perpetrators--those charged with murder or with assault not resulting in death--who confess and plead guilty will receive reduced sentences, while convicted category-four defendants will receive suspended sentences.

     Yet there are multiple legal and moral dilemmas arising from this arrangement, says Morris. Given the concurrent jurisdiction between the ICTR and the Rwandan government, it remains to be seen how cases will be divided and whether the outcomes can be equitable. Under the Rwandan penal code, for example, criminals convicted of certain crimes can be sentenced to the death penalty, while the ICTR is only capable of passing along sentences involving imprisonment. If those charged with the most abhorrent crimes are tried before an international tribunal and found guilty, their sentence might be the same or even more lenient than someone convicted in the Rwandan courts of a lesser crime.

     "What we're going to have is this bizarre outcome in which the top-level people who are perhaps most responsible will get lesser penalties than those in the next round," says Morris. "But the question in Rwanda is always, well, what's the alternative? And this is just another example of that."

     When it comes to victim reparations, she says, the questions don't get any easier. "We are trying to establish where the assets might come from--perhaps from the international community or from a special Rwandan tax--as well as where they will go. Again, how do you categorize? How do you compare people who were physically injured with people who were psychologically damaged? What if someone lost an entire family? Or only one child? Or only a brother-in-law? Some people say this whole exercise is tragicomic, because Rwanda is such a terribly poor country that what we're doing is thinking of all the different ways to divide zero."

     As she and her Rwandan colleagues map out ways to begin to bring order to a chaotic situation, they are getting help from other countries that have struggled with their own hardships. At the Belgium conference last summer, she discussed her Rwandan work with Alex Boraine, a conference speaker and vice-chair of the South African Truth and Reconciliation Commission. With funding from the government of Belgium, Morris and Boraine have organized the Inter-African Cooperation on Truth and Justice program, which brings together government officials from Rwanda and South Africa to discuss issues of justice in the wake of mass-scale crimes.

     For someone so immersed in international criminal law, Morris took a rather indirect path to get there. As an undergraduate at Yale, she was interested in issues of social equality and justice. One day while reading an article in the Yale Law and Policy Review on comparable worth, the subsequent essay caught her eye. Written by feminist scholar Catherine McKinnon, the piece "made me so angry and provoked at what I considered a preposterous position that I decided to write an article in response to and as a critique of her work," says Morris. She began delving into the implications of governmental regulation of pornography and even spent one summer working for Playboy Enterprises as a research consultant, reviewing the existing social-science literature on pornography and aggression. (Her study was included in the 1985 Attorney General's Commission on Pornography report.) By this point, she says, she had decided on a career in law over sociology because law would provide "a more attractive combination of theory and activism that wouldn't be as easy to achieve in sociology." After graduating from Yale Law School in 1989, Morris was a law clerk for Judge John Minor Wisdom of the U.S. Court of Appeals for the Fifth Circuit before joining Duke's faculty in 1990.

     In the wake of the breakup of the former Yugoslavia, Morris became intrigued by the attitudes reflected in reporting on the incidence of rape during that conflict, observing "a widespread assumption that rape was an expected aspect of war." She decided to investigate the prevalence of rape by military personnel, both during peacetime and during times of armed conflict. "It seemed that a lot of the coverage of rapes in the former Yugoslavia had an underlying assumption that of course rape is very common in war. That while, yes, it was appalling and so forth, we wouldn't really expect it not to happen," she says. "So I began to wonder whether it was war specifically or something else within military organizations that accounted for the incidence of rape."

Morris: overseeing the "important and volatile issue" of criminal justice in Rwanda
Photo: Les Todd

     Morris embarked on a study to compare military rape rates with civilian rates during war and peace, using the United States military as her case study. She used Army records of rape committed by American military personnel in Europe during World War II for her wartime data, and civilian crime rates and crime statistics for 1987-92 for her peacetime data. Her research revealed that while peacetime rates of all violent crimes, including rape, by military personnel are lower than civilian rates of these crimes, the incidence of rape is reduced far less from civilian levels than are military rates of other violent crime. During war, military rape rates were several times the civilian rates, while the rates of other violent crimes by military personnel were about the same as civilian rates. In other words, she says, the ratio of military rape rates to civilian rape rates is substantially larger than the ratio of military rates to civilian rates of other violent crimes.

     In her report, "By Force of Arms: Rape, War, and Military Culture," published in the February 1996 volume of the Duke Law Journal, Morris explores the various cultural and environmental factors that might contribute to this "rape differential." She also poses a provocative policy question. "Can the gender and sexual norms of military organizations be changed without reducing military effectiveness?" she writes. "Or, put differently, are the norms in question--the gender culture of the military--integrally related to military effectiveness?" In Morris' view, the existing military culture that is built on specific sexual norms can indeed be revised and improved without risking military competence. Rather than forging a gender-based group identity through an indoctrination process that encourages and rewards stereotypically masculine behavior, Morris suggests that cohesion and loyalty can be fostered through other ideological or non-ideological means.

     As it happened, Morris soon found herself in the public position of being a spokesperson on military culture. Senator Dennis DeConcini (Democrat of Arizona) used her findings to bolster his promotion of a bill to establish an office of special investigations to oversee handling of sexual misconduct in the military. And as revelations of sexual harassment and rape at the Aberdeen, Maryland, military proving ground surfaced this past fall, Morris juggled requests from local and national media for interviews and analysis. Her op-ed piece, "The Rape Differential," appeared in The Washington Post, and as a result, Secretary of the Army Togo D. West has asked her to serve as his special consultant, and as consultant to the Senior Review Panel on Sexual Harrassment.

     Not surprisingly, she encountered the usual misinterpretations and misunderstandings of her research. During a call-in radio talk show in Fayetteville, North Carolina, some callers told Morris that her findings were further proof that women shouldn't be in the military. On the contrary, she says, as greater numbers of women enlist in the military and assume positions of power, the more likely the existing mind set will change to accommodate and respect women. "You can look at this two ways," she says. "On the one hand, we can say we're not doing as well with rape as we are with other crimes in the military. At the same time, we can say that the military is one of the safest places for women to be. Even though military rape rates are as high as 50 percent of the civilian rape rate while military rates of other violent crimes are only 18 percent of civilian rates, the military rape rates are still only 50 percent of the civilian rates. So either way you approach it, it's a good idea to have women in the military. You certainly can't use these data to show that you shouldn't have women in the military. If anything, you could use them to argue that women shouldn't be in the civilian population!"

     As 1997 gets under way, her calendar is already filling up with travel and appearances related to her military research and her Rwandan and international justice responsibilities. In January, she flew to South Africa for another meeting of the Inter-African Cooperation on Truth and Justice participants. In April and May, she'll present papers at Cornell University's Peace Studies program and the German Army's officer training academy, respectively. Her writings are slated to appear in The Oxford Companion to Military History, the ILSA Journal of International and Comparative Law, the Duke Journal of Comparative and International Law, and the German-language book Gender and the Military. In addition to teaching courses in criminal and international criminal law, she is the faculty director for the Duke/ Geneva Institute in Transnational Law, and a coordinating faculty member for Duke's Lemkin Program on Genocide, Refugees, and Ethnic Conflict Resolution. Since 1994, she has also supervised a project with Duke law students to provide research assistance to the office of the prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda.

     Despite her circuitous entry into the arena of international criminal law, Morris says she plans to continue devoting her professional energies to her current research. After all, no matter how exhausting and uncertain the mission, whether it's changing a cultural mind set or helping rebuild a country like Rwanda, her work day is never dull. But sometimes in the midst of it all, the weight of what she's taken on will catch up with her, she says. It's happened on the return flights from Rwanda, after spending days looking at massacre sights and afternoons that stretch into evenings planning how to revive a devastated country.

     "When I was in law school I had no idea I'd be doing anything international," she says. "Sometimes, when I step back from what I'm doing, I'll panic. What if it doesn't work, or what if there's a mistake, or what if there's something we haven't thought of? But then I'll think of the people in the Rwandan government who really do want to develop a basis for reconciliation and power-sharing. That is what I think is hopeful: that it may actually be possible to succeed."                                                                      


     To understand the present situation in Rwanda, it's important to know the country's fitful history. The population consists of two main ethnic groups, the majority Hutu and the minority Tutsi. During Rwanda's colonial period, Belgium governed through a privileged group of Tutsis. In 1959, as Rwanda was poised to gain its independence from Belgium, Hutus persecuted, forced into exile, or killed thousands of Tutsis.

     A generation later, a rebel Tutsi group called the Rwandan Patriotic Front (RPF) fought for the return of the refugees and for a share of political power. In 1993, the Arusha Peace Accords were signed despite continued objections from Hutu nationalists.

     In April of 1994, a plane carrying the president of Rwanda and the president of neighboring Burundi was shot down; mass violence broke out. In the next fifteen weeks, half a million to a million people were slaughtered, primarily Tutsis but also moderate Hutus and those suspected of being sympathetic to the Tutsi cause. Men, women, and children were hacked to death with machetes, including civilians seeking shelters in churches and schools. Another 2 million people fled to neighboring countries. The physical infrastructure of Rwanda was largely destroyed.

     By the time the RPF army finally succeeded in taking over the country militarily in mid-July, tens of thousands of people suspected of perpetrating the genocide had been taken into custody. That number has since grown to more than 80,000. Although there are concerns over how to process so many cases, those involved in shaping the criminal legislation agree that prosecution is necessary not only to punish perpetrators of genocide, but also to help speed the process of national reconciliation.

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