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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: Transitional justice: Paving the way to peace
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Relatives hold portraits of the “Disappeared” in Chechnya between 1999-2001. The bitter struggle in Chechnya and the serious violations of human rights by the Russian forces remain unresolved. There will need to be a reconciliation and a perception of justice being performed if the Chechnyans are ever to live peacefully with Russians again.
Credit: Human Rights Watch |
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A Rwandan woman explained her view of how to reconcile Rwandan society and try to prevent future bloodshed: “We are Abel and they are Cain. The government should force Cain to be good.” She lost her sister during the genocide in 1994, and several of her children.
Against this backdrop of a still divided society, the Rwandan government ensures that the slogan “Never again” is writ large on monuments across the country, and is frequently pronounced in newspapers and television programmes. It has set up gacaca courts, which are an attempt to dispense community-based justice in a country where the tension between the past and the present is almost palpable; a country that seems to be struggling with the demands of reconciliation.
Reconciliation is just one aspect of efforts to help a society move forward from its troubled past to a more stable and less bloody future. A variety of organisations - principally NGOs and the UN - work in assisting countries and communities to rebuild themselves after conflict; an area of development which is commonly known as peacebuilding.
According to a 2003 World bank report, that 44 percent of countries which have suffered violent conflict return to violence within 5 years, underlining the importance of trying to build strong foundations around peace accords.
Why peacebuilding is not in vogue
Despite the obvious need for peacebuilding processes, in a world where 15 of the 20 poorest countries have experienced significant periods of conflict in the last decade, peacebuilding is not always top of the aid agenda. The term peacebuilding was first used in 1992 by the then Secretary General of the UN, Boutros Boutros-Ghali in a report called “An Agenda for Peace” which set out the UN’s toolkit to respond to conflicts at the end of the Cold War. The toolkit consisted of preventive diplomacy, peacemaking, peacekeeping and peacebuilding.
“He killed my father, he killed my mother – still I voted for him”
was the explanation of many Liberians who were war-tired and feared a renewal of the fighting in case Taylor would lose the presidential elections.
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The international environment that existed then was more favourable to consensual peace initiatives. The attack on the United States on September 11 2001, and the subsequent wars in Afghanistan and Iraq, have since divided the international community; and the priorities set out in “An Agenda for Peace”, “no longer remain at the nucleus of the UN system”, in the words of Dr Necla Tschirgi, Vice President of the International Peace Academy. The emphasis has moved to the national security interests of the more powerful member states; the focus being on regime change in parts of the world which may directly affect the interests of those same powerful member states.
Aside from a lack of political will, the fact that peacebuilding is a slow process also counts against it. A report on the joint Utstein Study of Peacebuilding - commissioned by the governments of Norway, the Netherlands, UK and Germany – (the “Utstein report”) points out “following bitter conflicts, sustainable peace is only available on the basis of sustained effort lasting a decade or more”.
It can be hard to justify a decade or more of consistent involvement in one peace process in one country, when so many conflicts or humanitarian disasters compete for international attention. Domestic political pressure can also be a factor as people want their governments to respond to the crises which get media attention and coverage, not to longer term peacebuilding projects which occur away from the cameras following forgotten wars in far off countries. The frenzy of donations that followed the 2004 Asian tsunami, both from individuals and governments, attests to this. By comparison, there is an almost complete lack of political will to fund solutions to the problems of the Democratic Republic of Congo, where a war has been raging since 1998, with a death toll higher than in any conflict since World War II. The Lancet, a UK medical journal, estimates that there are more than a thousand deaths occurring there every day.
Value for money
Compounding the problem is the fact that it is hard to assess what impact peacebuilding projects have in contributing to lasting peaceful relations after upheaval. Quantifying the results of any peacebuilding or conflict resolution initiatives is notoriously difficult. Even the significance of different outcomes of such initiatives will vary in importance from context to context. This makes funding initiatives less appealing; it is always difficult to raise money for projects which have no concrete results.
The burning library of Sarajevo, once containing a huge collection of old and precious books and documents, was destroyed completely on August 26, 1992, deliberately targeted by Serbs. During the siege of Sarajevo about 400,000 residents were trapped, and were cut off from all basic supplies. Thousands of civilians were killed and wounded, suffered from rape and starvation.
Credit: Manoocher/IRIN
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Dr Fanie du Toit of the Institute for Justice and Reconciliation, a South African NGO, has worked on various projects designed to promote reconciliation in South Africa. The Institute produces questionnaires that are widely distributed in different regions of South Africa to gauge how the process of reconciliation is progressing. Despite these laudable attempts, he agrees on the difficulty of assessing individual peacebuilding processes: “I do not think there is a way you can measure that, though I would say we have had a positive impact.” This is a common claim of peacebuilders which can leave donors cold.
There is a conflict between the desire for tangible results and the very nature of peacebuilding, which attempts to rebuild and reconnect different aspects of society over the medium to long term.
How do you “build” peace? Aspects of the peacebuilding palette
The term peacebuilding covers the range of projects designed to reconstruct the social, economic and legal fabric of a society following a conflict. Many NGOs are active in different sectors trying to build a stronger society on fragile peace accords. These organisations work in all areas of peacebuilding including enhancing security, trying to address poverty, building infrastructure and strengthening the political framework.
Security
Peacebuilding can only start once there is security: governments are responsible for demobilisuing former combatants, but it is often the NGOs that are instrumental in re-integrating these former soldiers into society, clearing mines and establishing programmes for handing over weapons and small arms so that they are not circulated to criminal elements, fuelling insecurity.
The problem of trying to reintroduce child soldiers back into the community is a long, difficult and sometimes unsuccessful process. It requires community-based rehabilitation projects, that enable former child soldiers to obtain education, to address the trauma of the conflict years, and to create opportunities for an alternative to military life. As the NGO Amesty International points out in a report on child soldiers in Burundi: “NGOs can play a vital role, complementing the formal process, in preparing both the child soldiers to return and the communities - also traumatised by years of political or ethnic violence and armed conflict and largely impoverished - to accept them, as well as by developing rehabilitation programmes.”
Rebuilding economies
The construction of socio-economic foundations and a functioning political framework complement security. The physical reconstruction of cities, development of healthcare, education, water provision, electricity, roads, livestock, and crop production all need to function for a country to get back on its feet and return to some kind of normality.
As wars end and/or rebel forces lay down their arms local government and the international community grapple with the issue of how to prevent battle hardened soldiers drifting back into violence if they find the peace unrewarding or hopeless. Disarmament, Demobilisation and Reintegration (DDR) programmes are fraught with problems.
Credit: Brent Stirton/OCHA
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This requires investment from outside. However, another urgent need is skilled manpower. Many people were forced to flee their communities during times of conflict, resulting in a ‘brain drain’. Ellen Johnson Sirleaf, the recently elected President of Liberia, has broadcast appeals to Liberians to return home, to bring back the skills that the country urgently needs to develop the healthcare, education and governmental infrastructure.
Political framework
Democratisation, re-installing the rule of law, building institutions and ensuring that human rights are being safeguarded systemically are other aspects that the UN and NGOs focus upon to strengthen a society emerging from upheaval.
Dennis McNamara, Special Adviser on Internal Displacement to the UN, criticises the failure to prioritise the rule of law in post-conflict situations:
“The failure is pretty total. We don’t seem to grasp the need to have rule of law aspects addressed on the ground with the appropriate people at the critical time, when conflict is low-level or ending. The military cannot do it. In Kosovo, the (British) forces arrested people who were burning down houses, but then they had to release them as there was no civilian justice system to turn them over to. In Afghanistan, it has been impossible in a peace-keeping context to get sufficient civilian police in place.”
Without a judicial system in place, and a functioning police force which can apprehend those engaging in criminal activity, there can be no hope of a return to ordered civil society. The situation in Iraq at the moment is a classic example of a state operating without effective rule of law, the absence of which precludes any serious reconstruction efforts.
The fourth area of what was termed the peacebuilding palette in the Utstein report, is reconciliation and justice.
Reconciling torn societies
How to bring about some form of reconciliation and healing in a society which has witnessed genocide, widespread rape, torture or systematic limb amputation is a problem with no easy answer, not least when the preconditions to conflict may still be present and unchanged.
A man recovers from a brutal beating in the North Uganda conflict. For him and hundreds of thousands who have been terrorised, raped, mutilated, displaced and abducted what is the process of healing and what kind of justice can they ever expect?
Credit: Sven Torfinn/IRIN
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Practitioners of transitional justice advocate a holistic approach to the issue including: criminal prosecutions; truth commissions to uncover what occurred and to give the victims a voice; financial reparations for those who have suffered egregious violations; reform of state institutions to root out those who were involved in the human rights abuses; and meaningful dialogue between various parties including victims’ groups.
As Paul van Zyl, Programme Director at the International Centre for Transitional Justice, told IRIN: “Any one of those five approaches will often be insufficient and it is best to try and do as many of those as is possible in the circumstances.”
Unfortunately, it is rarely the case that all five aspects are implemented. Often, apart from financial constraints, there are political ones which affect what steps can be taken at a particular time. Unsavoury compromises, such as granting amnesties to perpetrators of gross human rights abuses, are sometimes seen as the only alternative to a return to open conflict.
A thousand mile journey begins with one step
In Morocco, a truth and reconciliation commission (the IER) was set up to examine the state-sanctioned abuses that occurred under the regimes of the previous two kings, between 1956 and 1999. This was the first commission of its kind in the Arab-Islamic world. It has been criticised on the basis that there have been no prosecutions and so no punishment for those who have confessed to human rights abuses.
However, as Hanny Megally, the Director of the Middle East and North Africa Programme at the International Centre for Transitional Justice (ICTJ) points out, even the process of having a truth commission has taken time. In the early 1990s some of the disappeared were released from the detention centres where thay had been held. This was followed by compensation committees set up to make reparations to those who had suffered. In 2006 the IER published the report on its findings. “Each step was presented as the last step before turning the page. The compensation process paved the way for the truth commission. There is no reason not to think that other steps, whether further reforms, the removal of those responsible for abuses from public office or even prosecution, have been completely ruled out.”
He also told IRIN: “Each country has its own specificity as to how it will go about addressing a legacy of past abuses. With the Middle East and North Africa, impunity has reigned for the last 40 to 50 years. Any effort to break that wall of silence has to be seen as a positive step forward.”
The story of Morocco is not atypical: the brief history of transitional justice has been one of small steps towards justice. It is not always an option to hold an open and thorough examination of past abuses, and to make those responsible accountable. Timing is of the essence.
Timing is of the essence
Humanitarian demining teams (MAG) take a rest in north-west Cambodia. Many of the workers are mine victims themselves. Offering employment to those injured and mutilated by conflict or oppressive regimes is often a higher priority to the victims than a public show of ‘justice’ which may net a few ‘big fish’but maks no different to their daily struggles.
Credit: (By kind permission) Sean Sutton/MAG
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In Lebanon, where there were widespread massacres and human rights violations during the civil war which ravaged the country between 1975 and 1990, there has so far been no effort even to investigate, let alone bring those responsible to justice. Calls for justice have so far fallen on deaf ears, partly because as Megally says: “The fear there is that investigations could reignite the civil war.” Justice can only begin to be done when the structure of peace is solid enough to withstand the pressure of potentially divisive investigations.
The importance of timing in transitional justice measures is still being seen in parts of South America. It has taken more than 20 years for Argentina and Chile to confront those responsible for human rights abuses in court. Argentina did hold truth commissions in the early 1980s to investigate the abuses perpetrated under the military junta that held power there, but steps towards criminal prosecution caused the threat of a new military coup. Legislation, in the form of the 1986 Full Stop Law and the 1987 Due Obedience Law, was brought in to impede any prosecutions. Only in 2005 did the Supreme Court there declare those laws to have been unconstitutional and thereby open the door to criminal prosecutions of the abuses that occurred in Argentina.
Similar moves are taking place in Chile to reverse the immunity that General Pinochet accorded himself when he stepped down in 1990. As Patricio Aylwin, who succeeded Pinochet, said at the time: "We will tackle the excesses of the past," but added, "within the realm of the possible." Thanks in large part to mounting external pressure after the extradition trial held in London in [ ], Pinochet’s immunity is being stripped away on a case by case basis, and it is now possible for him to be made to stand trial. After a lapse of some sixteen years, the country is in a position to examine its past.
Are truth commissions alone ever satisfactory?
Practicioners of transitional justice advocate a holistic approach to healing the community. But can truth commissions alone, without judicial measures, bring about reconciliation?
The Truth and Reconciliation Commission (TRC) in South Africa, which eased the process of transition from apartheid to democracy, is often trumpeted as the model truth commission success story, and is held up as an example of why truth-telling mechanisms can be more palliative to the community than trials.
However, the TRC was predicated on the basis that there would be trials for those who did not cooperate in the process. Human rights and civil societies have levelled criticism at the South African government’s failure to follow up this initiative. Paul Van Zyl, who served as executive secretary to the TRC, is disappointed with the government’s recent initiatives in this area: “What the government has done is table a new prosecution policy which effectively gives perpetrators a second bite of the amnesty cherry... (this) violates the essential spirit of the compromise that was the truth commission.”
Truth commissions are seen as an important process in helping a society come to terms with the legacy of its past. Whereas the role of courts is to judge the guilt or innocence of the alleged perpatrator, the focus of truth commissions is on the victims and their individual stories. The information that is uncovered in truth telling procedures has a dual role: it can be a form of catharsis for the victims and it can be an effective method of amassing evidence for prosecution later. Families often learn what happened to people who disappeared, which enables them to
"While the law is first applied against German aggressors … if it is to serve any useful purpose it must condemn aggression by any other nations, including those who sit here now in judgment."
Robert H Jackson, Chief of Counsel for US at Nuremberg
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start the process of grieving. Furthermore, Juan Mendez, the President of the International Centre for Transitional Justice, points out: “Courts will never be able to investigate every episode, and therefore there will always be a sense of inconclusiveness about justice and dissatisfaction on the part of victims of human rights violations that their case was not properly aired in a court.” Truth commissions can fill the gaps left by judicial procedure and close gaps where revisionist history might grow.
Truth commissions as a panacea
Increasingly however, truth commissions are being employed by governments instead of seeking full criminal prosecutions for human rights abusers. As Mendez, himself a victim of detention and torture under the military junta in Argentina, told IRIN: “That is a travesty because it tries to exchange the demands for justice for a truth telling exercise that becomes a substitute for justice. I would never support a truth commission as a substitute for criminal prosecution.”
Justice Geoffrey Robertson, Q.C., a human rights lawyer, also rejects the idea that truth commissions and other reconciliatory measures can be used to replace trials. He told IRIN: “I do not believe in “healing” if it anoints mass-murderers with the balm of forgiveness.”
In transitional justice, principles and pragmatism clash. Du Toit recognises the dilemma of balancing the desire for retributive aspects of criminal proceedings, which entails meting out punishment to perpetrators, with the need to heal a society as a whole: “The human rights standpoint would say that there is not enough justice in transitional justice measures. The political would say that there is too much justice and that we should just move on, as Spain did”, following the oppressive regime of Franco.
A clean sweep
The process of vetting, whereby those who were complicit in the violations committed by the previous regime are removed from their positions of office, is considered another necessary step towards attaining a reconciled society and drawing a line under the previous system.
Although justice is an important component of any transition, it is not sufficient on its own. This is because the judicial process can only address the tip of the iceberg of systemic abuse. Despite the prosecution of a few individuals, often a considerable number of human rights abusers who were part of the previous system are left in positions of responsibility. As a study published in the Harvard International Law Journal points out: “Some victims of human rights violations may identify the court with the perpetrator if the perpetrator was a state agent at the time of the abuse.” In order to build public confidence in the system, and to show that the regime change is more than superficial, those who were identified with the previous regime should be ejected from official state bodies.
Some of the disarmed child soldiers of South Sudan prepare to board a plane to return them to their parents and peace. Reversing the conditions that contribute to the start of conflicts is a colossal undertaking in terms of human and economic resources.
Credit: UNICEF
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In Afghanistan, there has been little or no vetting, which has translated into known warlords holding seats in parliament. This damages the credibility of the government and promotes an image of lawlessness. A system of vetting those who were standing for election would have counteracted this. The difficulty is that the warlords still maintain considerable political power, and the removal of such individuals may have violent and destabilising consequences. Again, timing is of the essence, and unpalatable choices may have to be made in the short term for longer term stability.
Mendez points out that vetting is a tool that can also be open to abuse. The process of de-Ba’athification which is going on in Iraq at the moment - that is the removal of anyone who belonged to Saddam Hussein’s Ba’athist party from official positions - “makes a mockery of vetting” in his words. It is being abused as a political process what is being conducted is in effect “a witchhunt, chasing after people for the sole ‘crime’ of having had to sign a membership card”.
Prospects for peace
If the international community is serious about reducing the likelihood of a return to conflict or abusive regimes, then peacebuilding needs to be high on the agenda. Once the peace accords have been signed and the guns have been put down, the work of building a society with a realistic prospect of peace and stability begins. This means ensuring ongoing security, investing in physical reconstruction and economic infrastructure, fostering good governance, and trying to help a wounded society heal itself. No one aspect of this peacebuilding menu is sufficient on its own. It is a positive step that truth and reconciliation commissions are now regularly mentioned in the early stages of any discussion on promoting peace in the wake of conflict, although the cynical might note that truth commissions are one of the less expensive peacebuilding procedures. The challenge to donor governments is whether they will be far-sighted enough to fund what is inevitably a long and expensive process with few tangible results.
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