Impact case study database

Clark’s research into post-genocide justice in Rwanda was used in 9 court cases in the UK, the US and Sweden and led to him providing expert evidence to support the prosecution, extradition or deportation of Rwandan genocide suspects. In all of these cases, Clark’s 2010 monograph was submitted as evidence, followed by his oral testimony either in person or via video-link. Clark’s research also contributed directly to accountability for Rwandan genocide crimes and led to greater public involvement in courtroom debates through media engagement in Rwanda and internationally.

As an expert witness, Clark had a substantial and wide-ranging effect on these cases, and 5 cases are used as illustrative examples. These effects can be summarised under 4 themes.

First, in the UK case of Brown et al, Clark’s research (particularly 3.1) was instrumental in convincing the Crown Prosecution Service (CPS) that there were sufficient grounds to pursue the extradition of 5 suspects living in the UK, despite having lost similar cases on appeal in the High Court in 2009. As the Head of the CPS Extradition Unit outlined, the CPS discovered Clark’s research after reading an op-ed he published on the UK High Court ruling for the New Vision newspaper in Uganda [5.5]. Shortly after, the CPS arranged a meeting at which Clark shared the draft manuscript of his monograph [3.1]. The CPS was convinced by Clark’s demonstration that genocide suspects routinely receive fair trials in gacaca and the Rwandan national court system, and that significant shortcomings exist in the methodologies of international organisations such as Human Rights Watch, upon whose testimony the 2009 High Court judgments hinged. Clark subsequently conducted further research and compiled an expert report, commissioned by the CPS, for a second set of UK extradition hearings which took place in 2014 [5.4]. The CPS also shared Clark’s report with prosecutors at the UN International Criminal Tribunal for Rwanda (ICTR), to inform their own deliberations over the possible transfer of suspects to Rwanda. Even though the eventual UK hearings did not lead to the 5 suspects’ extradition, Clark’s research was instrumental in convincing the CPS to pursue the case in the first instance and shaped their trial strategy (discussed below), while opening the possibility for future proceedings against them.

Second, Clark helped overcome negative perceptions of gacaca generated by human rights organisations and defence counsel in court cases in the UK, US and Sweden [5.1, 5.2, 5.3]. Explaining and legitimising the gacaca process – a justice system profoundly different from those in these three countries – was crucial in these foreign cases, which relied heavily on community-level evidence gathered through gacaca. In all 9 cases, as a result of Clark’s evidence, the courts in question accepted gacaca evidence as submissible in their own proceedings and referred favourably to the importance of gacaca for Rwandan society (often in the face of contrary evidence presented by human rights organisations and defence counsel).

In the Ngombwa case in the US, for example, the judge’s sentencing determination stated: ‘The court credits Dr. Clark’s testimony because of his vast experience – both academic and in-person – with the gacaca system. Particularly, the court credits Dr. Clark’s testimony over the testimony of defense witness Leopold Nsengiyumva, whose experience stemmed primarily from the International Criminal Tribunal for Rwanda and who had never personally observed or interacted with gacaca proceedings’. The judge’s determination found that the defendant’s gacaca convictions to be reliable for purposes of sentencing and stated, ‘Furthermore, the court recognizes that the gacaca courts found, after their investigations, that Defendant participated in genocide’ [5.2a, p43 note 8].

Similar statements concerning the importance of Clark’s evidence for convincing these courts of gacaca’s legitimacy can be found in: Brown et al [5.1a p151]; Mbanenande [5.3a p11 and pp36–39]; Berinkindi [5.3b pp51–53]; Rukeratabaro [5.3c pp159–161 and p170]; and Teganya [5.2b p19]. Regarding the UK cases, the CPS indicated that ‘The judgments [at Westminster Magistrates Court and the High Court] continued to bar extradition but increasingly recognized the legitimacy of gacaca courts and in 2017 the High Court left open the possibility of hearing further evidence on Rwanda’s justice system meeting fair trial standards’ [5.4].

Third, Clark’s oral and written testimony helped inform the UK and Swedish courts on the political environment in Rwanda, particularly the relationship between national politics and the independence of the national judiciary, as well as the concern that witnesses and evidence provided by the Rwandan judiciary were tainted by executive interference. Clark’s evidence – accepted as convincing in the 3 cases where this issue arose – emphasised that, since the beginning of systematic reforms in 2008, the Rwandan judiciary had maintained a high degree of independence despite a repressive political atmosphere. For example, the judgment in Brown et al [5.1b] stated (quoting Clark’s expert report): ‘[Dr. Clark] explains and I accept that seeing the suspects transferred or extradited and then prosecuted in Rwanda is significant for the [Government of Rwanda] and the population. He also argues and I accept that the GoR has shown a marked dedication to “reforming the domestic judiciary in order to facilitate international transfers and extraditions” . . . He explains how the Government of Rwanda has used the recent International Criminal Tribunal of Rwanda and UK High Court rulings as a checklist of reforms to improve the domestic system. I accept that this is the case’ [5.1b pp96-97]. Clark’s evidence on Rwandan politics and the interplays between the national executive and judiciary was also cited favourably in Berinkindi [5.3b pp51–53] and Rukeratabaro [5.3c pp160–161].

Finally, in the Teganya case in the US, Clark’s evidence – gathered during his research into gacaca – concerning the nature of genocidal violence throughout Rwanda and specifically in the province of Butare (where Teganya was accused of committing genocide crimes) was central to Teganya’s conviction and sentencing [5.2b]. The Boston Globe reported on Clark’s expert evidence describing how ‘Prosecutors will focus in particular on the attack at the Butare hospital, where Tutsis had fled seeking safety from Hutu extremists. Their hopes were misplaced, said Phil Clark, the first witness called by prosecutors. “Many Tutsis sought refuge in . . . churches, schools, and hospitals,” when Tutsis tried to seek refuge in these places, more often than not they were killed”’ [5.8e p2].

At Teganya’s sentencing hearing, the prosecution attorney highlighted the centrality of Clark’s testimony for the successful prosecution case, explaining that with ‘something that big as the Rwandan genocide’ they were ‘worried that people would not be able to apprehend the horror of what happened then, the worst genocide since the Holocaust. And that’s why we started out with an expert, an expert who could basically talk about the historical record, and what other people had seen and done not only throughout Rwanda but in Butare and around the hospital itself, to base that so that other people could understand the testimony – the eyewitness testimony that they were going to hear, and to judge what Mr. Teganya had said in the immigration proceedings.’ [5.2b pp12–14]

Taken together, these 4 dimensions highlight the impact of Clark’s research on the 9 cases in question. His findings helped launch a new extradition case against 5 Rwandan genocide suspects in the UK. His evidence regarding genocide crimes, the function of gacaca and the nature of executive-judiciary relations in Rwanda was central to the successful prosecution of 8 suspects in the US and Sweden.

Despite decades of investigations and legal initiatives, only a handful of the hundreds of genocide suspects who fled Rwanda after 1994 have been arrested abroad and prosecuted. Clark’s work aided the pursuit of Rwandan genocide suspects around the world by increasing foreign prosecutions and increasing the international confidence in the Rwandan justice system necessary to facilitate extraditions. Throughout these cases, prominent media reports also ensured that Clark’s evidence had a wider societal impact, increasing accountability for the Rwandan genocide and its aftermath.

The Head of the Genocide Fugitive Tracking Unit in the Rwandan National Public Prosecuting Authority indicated that Clark had made ‘vital contributions to the pursuit of accountability for suspected perpetrators of the 1994 genocide’, which ‘constitutes an invaluable contribution to the quest for justice and reconciliation in Rwanda’ [5.6]. Survivors in Rwanda and in the Rwandan diaspora followed Clark’s court cases with great interest. The Ishami Foundation is a UK- and Rwanda-based charity that draws on the experiences of survivors of the 1994 genocide against the Tutsi to promote awareness of the genocide and reconciliation. The CEO noted that Clark’s research had helped ‘achieve accountability for genocide crimes – something that genocide survivors (whether they live in Rwanda or in the diaspora) believe is imperative’ [5.7].

Beyond the courtroom, Clark’s research helped raise awareness and understanding of the genocide and of gacaca thanks to traditional and social media coverage of his involvement in these court cases, particularly in Rwanda [5.8c], the wider African region [5.8a] and in the US. The Boston Globe [5.8e] and The Gazette in Iowa reported the ways in which Clark’s testimony in the Ngombwa case challenged negative perceptions of gacaca expressed by one expert witness for the defence: “The defense expert . . . testified defendants in the gacaca courts didn’t have a right to a lawyer and the judges were not trained or lawyers themselves. Clark agreed with him, saying the courts were specifically set up that way. The biggest issue the country had was how to handle the masses of genocide suspects [with only] a small handful of judges or lawyers. Many were killed or fled the country after 1994.’ [5.8b]. This coverage was reproduced on IGIHE in Rwanda [5.6bii]. The East African noted that Clark raised his misgivings in requiring Rwanda to invite foreign judges and lawyers to try cases domestically, quoting Clark as saying ‘[t]he UK legal system would never tolerate the idea of foreign judges... in British courts’ [5.6a].

Similarly, a widely cited piece on Quid Justitiae, a key blog for legal practitioners and students, covered the Mbanenande case in Sweden and quoted Clark’s courtroom testimony: ‘Many believe that gacaca justice should not be discredited as it greatly helped Rwanda to recover after the genocide. We share this point of view. Phil Clark agrees: ‘[A]fter 10 years you can honestly say that the vast majority of genocide perpetrators have been prosecuted, not perfectly, but there is a sense in the hills now of who is responsible for what. . . . people in the communities know more about the genocide now because of the Gacaca process”’ [5.8d].