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In-Depth:
Justice for a Lawless World? Rights and reconciliation in a new era of international law
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 Download this in-depth report
Part I 6.36 MB
Part II 2.40 MB
- Professor Noam Chomsky
- ICC Chief Prosecutor Moreno Ocampo
- Samantha Power, Professor of Practice in Human Rights Policy
- Juan Mendez ,President of the International Center for Transitional Justice
- Justice Geoffrey Robertson Q.C.
- Dr Fanie du Toit, Programme Director for Educating for Reconciliation at the Institute for Justice and Reconciliation in South Africa
- Abdullah An-Na`im, Ph.D, Charles Howard Candler Professor of Law at Emory University, Atlanta, GA, USA
- Augustin Nkusi, the Director of the Legal Support Unit, National Service of Gacaca Jurisdictions, Rwanda
- Benjamin Gumpert, counsel representing Justin Mugenzi, who is currently on trial at the International Criminal Tribunal for Rwanda
- Hanny Megally, Director, Middle East and North Africa Program, International Center for Transitional Justice (ICTJ)
- Paul van Zyl, Country Programme Director at the International Center for Transitional Justice (ICTJ)
- Johnston Busingye, Secretary General of the Ministry of Justice in Rwanda
- Dennis McNamara (Special Adviser on Internal Displacement to the UN’s Emergency Relief Co-ordinator and Director of the OCHA Inter-agency Internal Displacement Division) on the rule of law
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GLOBAL: Interview with Paul van Zyl, Country Programme Director , ICTJ
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Paul van Zyl. |
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Paul van Zyl is the Country Programme Director at the International Center for Transitional Justice (ICTJ). Paul van Zyl served as executive secretary of the Truth and Reconciliation Commission in South Africa, helping to establish the Commission and develop its structure and modus operandi. He has also worked as a researcher for the Goldstone Commission and as a department head at the Centre for the Study of Violence and Reconciliation in Johannesburg. Van Zyl was recently director of Columbia University Law School's Transitional Justice Program, and now teaches law at both Columbia and New York University Law Schools.
QUESTION: Are Truth Commissions alone, without prosecutions, ever enough?
ANSWER: Transitional justice should be embraced in as holistic a way as possible.
In general, when nations try to come to terms with the legacy of gross violations of human rights they should seek to achieve justice for the crimes that have occurred, including criminal prosecutions and punishment for serious crimes. They should seek to establish the truth about what has occurred, which is often, though not exclusively, the province of truth commissions; they should seek to offer reparations to victims of gross violations of human rights; they should seek to reform state institutions that were responsible for human rights abuses, in particular the police, military and the intelligence services who are most likely to have been involved in the abuses; and they should attempt to promote meaningful reconciliation on the basis of engagement with the past, rather than seeking to sweep responsibility under the carpet.
Any one of those five approaches will often be insufficient and it is best to try to do as many of those as is possible in the circumstances.
Q: So in South Africa at the time, was it sufficient to have only a truth and reconciliation commission because prosecutions were not possible?
A: Ideally, at the transition of South Africa you would have had an approach which would have allowed for the prosecution of those responsible for the most serious crimes, as well as truth-seeking, reparation, institutional reform and a reconciliation programme.
The delicate and highly-negotiated nature of the transition made justice in the short-term difficult to obtain, and the truth commission was therefore a very welcome and important stand-in in the circumstances. The truth commission was always premised on the idea that those people who did not apply for amnesties, or those people for whom amnesty was refused or denied, would be held accountable and would be prosecuted. There was a sense that it was trying to marry together truth and justice in a rather difficult and delicate political situation.
There are two categories that are eligible for prosecution: those who did not apply for amnesty; and those who applied but who were turned down because their crimes did not fit the definition of political crimes or who failed to make full disclosure.
One of the great disappointments following the truth commission was that it explicitly mentioned that those people who did not apply, or who were denied amnesty, should be prosecuted. But there was no meaningful follow-up by the government in seeking to achieve post-truth commission justice, and committing the necessary resources and political will to prosecuting those people who did not apply for amnesty or who were denied amnesty. That is a serious criticism of the current South African government’s approach to this.
Q: There is discussion now though about potential prosecution?
A: It is going in the opposite direction. What the government has done is table a new prosecution policy that effectively gives perpetrators a second bite of the amnesty cherry. Human Rights organisations, victims groups and the ICTJ are deeply troubled by this as it violates the essential spirit of the compromise that was the truth commission. If you are to grant amnesties, to make the deal meaningful, you have to say that if people do not apply, or are refused, they will be prosecuted.
Q: Is there a role for amnesties in transitional justice?
A: There is a growing recognition that amnesties for gross violations of human rights violate international law. Therefore, they may not be enforceable. There is a trend across the world - but notably in Argentina, Chile and Peru - that amnesties have been overturned. Amnesties for the most serious crimes are either unlawful or they tend with the passage of time to be overturned. When democracies deepen or consolidate, or when militaries or perpetrators lose their capacity to threaten the current political situation, normal and democratic societies begin to question why the people who committed these atrocious crimes should live in impunity. The first point is that the comfort that some perpetrators derive from amnesties may be somewhat illusory.
Q: What about the Sierra Leone Truth Commission’s assertion that the withdrawal of amnesties can have a negative effect, and could prolong any conflict?
A: Sierra Leone is the exemplary case of the danger of granting amnesties. The Lome amnesty that was concocted was a very broad blanket amnesty for people who had committed atrocities during the course of the civil war. No sooner had the amnesty been granted than Foday Sankoh and the RUF returned to the bush and continued the conflict.
In a way I would argue that Sierra Leone exemplifies the dangers of amnesties and not the benefits. The problem there was not too much justice but too little justice.
The Sierra Leone Special Court will probably, in the course of its entire mandate, prosecute fewer than 20 people and that is just a tiny fraction of the overall number of people responsible for atrocious crimes.
Sierra Leone is not an example of justice endangering stability. Too little justice has promoted a culture of impunity that has allowed people to commit atrocious crimes with no accountability.
Q: Is it not arguable that Chile’s General Augusto Pinochet would not have left power when he did if he had not been granted an amnesty?
A: Where the tension between peace and justice becomes most acute is in the course of negotiation to end a conflict or to allow for a return to democratic and civilian rule. In contexts where one side in a bloody civil war is not going to give up its arms and stop fighting unless there is an amnesty, or where a very powerful and repressive military regime is not going to relinquish power unless it is granted an amnesty, this presents a genuine ethical and moral dilemma for people on the other side. On the one hand, there are people who want justice. But on the other hand, people do not want the violence to continue, and see the obvious value in a return to peace or in a restoration of democracy.
In that context, the only way that you minimise that tension between peace and justice, or democracy and justice, is by trying to be creative in the terms of the amnesty: by limiting them as much as possible; trying to make them as conditional as possible; trying to build sunset clauses into them; and trying to ensure that language is built into them which says that if people take up arms again or try to undertake another coup, then the benefits of that amnesty are immediately extinguished. There is no doubt that there are instances in which amnesties pave the way for a short-term improvement of the human rights position in a country or a reduction in hostilities.
The historical evidence tends to show that those amnesties do not stick. There are ways to negotiate those amnesties so that they do not give blanket impunity to people on the other side.
It is very important for everybody concerned to recognise that both as a matter of law and as a matter of principle it should be troubling for people who have committed atrocious crimes to be indemnified for the consequences of their actions.
Blanket amnesties should be avoided and everything should be done to allow these amnesties to be challenged in subsequent years. Amnesties should be designed in such a way that they benefit as few people as possible; and as narrow a range of crimes as possible if you have to do it in the first place.
Q: But aren’t those who negotiate the amnesties for themselves likely to be the “big fish” and accordingly the very people that the International Criminal Court (ICC) would be going after?
A: The people with the greatest responsibility are often the people with the greatest power in the negotiation. I would not argue that one always has to be a mandatory retributionist or a maximalist, asserting that justice must always be done in an unconditional or unqualified way. The reality of the world is such that in some circumstances it is just not possible to make that assertion. Precisely because people have committed such atrocious crimes, I would be very doubtful whether the ICC would respect those amnesties. They would say that that was a domestic arrangement extracted under circumstances of duress and we do not regard ourselves as bound by it. Most international courts are going to overturn those amnesties if the case comes before them.
It is an illusory assurance that people are seeking to extract for themselves.
Q: What would you say to those who criticise the amount that is spent in for example the The International Criminal Tribunal for Rwanda (ICTR) or The International Criminal Tribunal for the Former Yugoslavia (ICTY) in prosecuting very few people?
A: If you compare dollar for dollar the amount that it costs to convict the most senior people before the ICTY, with what it costs to convict for example a Mafia boss in the United States or the prosecution of Timothy McVeigh, the Oklahoma bomber, the amounts are comparable.
These are large complex cases involving multiple defendants, intensive investigations, with dozens if not hundreds of witnesses. Justice is a costly endeavour. Most people would balk at the idea that you should not prosecute mafia crime lords on the basis that it is too expensive. When you look at the kind of people who are being prosecuted before the ICTY and the ICTR, they are responsible often for tens and sometimes hundreds of thousands of deaths. It is useful to look at that as a comparator.
The second point is that if there is a question to be raised about the tribunals, it is how to make sure that we funnel the resources that we have committed to pursuing criminal justice in a way that enhances domestic capacity to prosecute in the future. There are some questions about having the ICTY and the ICTR outside the countries in which the crimes occurred, so they are not having either a developmental or a catalytic effect on the domestic jurisdiction. Hybrid tribunals do have an effect on the domestic jurisdiction. They are a welcome trend. But if you look back to when the ICTY was set up, it is very difficult to see how it could have been set up in the region. There are some particular historical circumstances around Rwanda that make it somewhat more arguable.
The Rwandan government’s attitude to prosecuting crimes committed by the RPF/RPA [[Rwandan Patriotic Army] make it difficult to imagine how the ICTR could operate without fear or favour within Rwanda. So there are good explanations for having these tribunals outside the countries.
I think it would be unfortunate for the international community and donors to view the ICC as a panacea; to say that they have invested in the ICC and there is no need for intervention on the justice front at a domestic level in the countries in question. The ICC is only ever going to prosecute a maximum of 10 people in any given context, and so there are going to be hundreds and thousands of people who escape accountability. Domestic institutions need to be given resources, and resource-strengthened, to be able to deal with the impunity gap between the people the ICC targets and the vast majority of people underneath. These people are not only low-level trigger-pullers, there is going to be a large number of middle- and senior-ranking perpetrators who will escape the jurisdiction of the ICC. The Sierra Leone Special Court and others have shown us what hybrid tribunals can do, and if anything, they make the case for more hybrids not less.
And generally on costs: if you consider that justice over time is a general deterrent, or that arresting and incarcerating individuals thereby minimises their power to perpetuate conflict, in that context, when you consider the cost of ongoing conflict and war, - and the ensuing developmental cost that conflict entails - those costs far outstrip the cost of international justice.
Q: Do you think that the ICC will have a deterrent effect?
A: It is important for advocates of international justice and strong proponents of the ICC not to overstate the deterrence argument. The ICC is valuable in and of itself. It may over the course of time come to deter people. But there are many important principled reasons to have a permanent tribunal that holds people accountable for the most atrocious crimes. It does not have to hinge on the deterrence argument.
That said, the certainty that if you commit atrocious crimes you will be caught and punished, will over time tend to deter people. But you also have to bear in mind the kind of people that international tribunals go after. People who are inclined to commit genocide and other atrocious crimes are not the most deterrable kinds of people.
Human rights advocates can afford to be honest and say that in some contexts it will deter; and in some contexts, if you manage to incarcerate some perpetrators that will have an effect. But there will be some people who are not deterrable. I do not think that is dispositive one way or another as to whether there should be a tribunal to prosecute people.
Q: The ICTJ is regularly called in to advise truth commissions and governments on aspects of transitional justice. Why has it grown so much and become so influential?
A: It has been responsive to a real need. As soon as we were set up, there was a large number of civil society organisations coming to see us, saying that they wanted to develop a holistic response to dealing with the past. There is a global experience that they wanted to be able to benefit from. I served as the executive secretary of the Truth Commission in South Africa, and part of the reason why the commission was successful was that we were able to look at the experiences of Chile, Argentina and Eastern Europe, and compare the circumstances and adapt what was done elsewhere to our own context. That has been the modus operandi of the ICTJ.
We have tried to go into countries on request and, with modesty and deference, say to the people whose country it is and whose choice it is: we are not going to tell you what to do but what we are going to try to give you a sense of what has been tried elsewhere and show the strengths and weaknesses, the successes and failures, and allow you to craft your own approach to try and deal with what has occurred.
We have invested a great amount of time and energy not only in providing that comparative policy advice but also in seeking to build capacity of local actors and strengthen local NGOs and policy makers. Many of the people in ICTJ worked in human rights organisations in their own countries and have a strong sense that international organisations should be empowering local actors to make good decisions, not supplanting them, and helping them craft the destinies of their own countries.
[ENDS]
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