Afako
Justice in Conflict
Tensions between Conflict Resolution and Human Rights Protection
Barney Afako, Solicitor's International Human Rights Group, London, 22 March
2006
War and repression have continued to plague many countries of the world. These
conflicts have inflicted grave humanitarian consequences on civilians and many have
been characterised by brutal and sustained human rights violations. Societies
recovering from war have to confront the difficult question of how establish peace
whilst dealing justly with the past. These are not new challenges; following the
Second World War, the Nuremberg trials represented the search for accountability for
Nazi crimes. The end of that war also put human rights firmly on the global agenda.
In the wake of the war, several human rights instruments were adopted to embody the
values which had been severely trampled during the war.
In the latter part of the twentieth century, political instability in many of the new
countries of the world saw a series of military governments depose civilian
governments. In Latin America, the instability often reflected Cold War rivalries. In
Africa, newly independent countries soon proved to be politically fragile and almost
all civilian governments fell to military coups, sparking off periods of civil war or
dictatorship. In some countries, notably the former Portuguese colonies, long wars of
independence transformed into even longer post-independence civil wars (Angola,
Mozambique). In Congo, an oppressive regime collapsed, to be replaced by weak and
unstable governments. Uganda has failed to establish peace even after the collapse of
the Idi Amin dictatorship. Rwanda plunged into a devastating genocide and Somalia
ceased to function as a state. In South Africa, in a hopeful development, the National
Party and the African National Congress (ANC) concluded the process of dismantling
apartheid by establishing a multi-racial democracy.
The Emergence of Transitional Justice
As states have grappled with the needs of political transformation and ending conflict,
they have faced the dilemmas about how to deal with the past. Transitional justice has
emerged in the last 25 years as a framework for understanding, and addressing these
issues. Transitional justice refers to a range of responses to address legacies of
conflict, repression or serious abuses, aimed at building as secure, just and peaceful
future. The definition is still contested, but it is to be understood in terms of the two
concepts of transition and of justice. The idea of
transition refers to political changes
in a country, for example, a shift from war to peace and from repression to democratic
rule. Justice, in this context, is a wider concept than formal trials, and embraces
other
forms of accountability
including truth-seeking, reparations, traditional justice and
other non-criminal sanctions.
Although transitional justice seeks redress for the past, the primary preoccupation for
nascent democracies is with the future: to strengthen the rule of law through
institutional reforms, and in poorer economies, to achieve social and economic justice
without which stability is threatened.
2
Transitional justice in Historical Perspective
The International Military Tribunal at Nuremberg, and the de-nazification programs
of Germany are now seen as the early instruments of transitional justice. However, it
was not until the trials of the Greek Generals (1975) and members of the Argentine
junta (1983) that renewed efforts to bring to book those who had orchestrated past
abuses were seen. Transitional justice, however, derives its unique flavour from its
adoption of alternatives to criminal trials. Of these, truth-seeking commissions have
perhaps received the greatest attention.
Truth commissions and other forms of accountability have emerged in response to the
challenges of applying formal criminal justice in transition situations. Transitional
countries often inherit weak or corrupt institutions
, including courts and security
services. Confronted by large-scale offending, these countries find that formal
processes of investigation and prosecutions are woefully inadequate. Efforts to apply
formal justice to these situations almost invariably lead to procedural and due process
violations against suspects. On the other hand, even where they are feasible,
prosecutions can prove destabilising
for fragile democracies. A trade-off is often
required. Many countries opt to forego trials in exchange for stability. There is now a
growing recognition of the dilemmas they face and an greater willingness to explore
an expanded range of responses of accountability and reparation.
Pursuing Prosecutions
Most victims and successor states would like to see the prosecution of perpetrators of
serious crimes. It has been argued that states have a duty under international law to
prosecute all serious crimes. There is much to be said in favour of prosecutions: they
prevent private vengeance, and provide a formal mechanism for realising justice.
They bring closure for victims, and by focusing on individual guilt of accused
persons, prosecutions clarify that social or ethnic groups are not all tarnished by the
excesses of the past. Prosecutions also are said to end the circles of impunity and to
deter future offenders, and thus restore confidence in the rule of law and restore trust
in institutions of justice.
International tribunals and Third States
The principal responsibility to deal with crimes rests with the state in which the crime
is committed. However, international tribunals have assumed particular importance in
the prosecution of the most serious crimes. The International Criminal Court (ICC),
which is now established in The Hague, has issued its first arrest warrants and
received its first suspect; it is likely to be a critical player in the search for
accountability. Where the abuses have caused particular concern to the international
community, ad hoc tribunals have been set up for the former Yugoslavia (The
International Criminal Tribunal for Yugoslavia - ICTY) and Rwanda (ICTR) to
prosecute those crimes committed in the conflicts in those regions. In Sierra Leone
and Cambodia hybrid tribunals combining national and international law and
personnel have been introduced.
International tribunals are not without their limitations or critics. In northern Uganda,
the ICC has been criticised by local communities for allegedly interfering with a
peace and amnesty processes. International tribunals are very expensive and are
3
usually far better resourced than national courts. This disparity in funding can
engender resentment and discredit international justice especially where the can only
deal with a few cases at a slow pace. In Rwanda, tensions have also been generated
between the victims and the government on the one hand and the ICTR on the other.
Rwandan rape victims have complained that whilst the perpetrators appearing before
the ICTR have received the best medical attention, victims continued to die for lack of
access to HIV/AIDS anti-retroviral drugs.
International tribunals are not the only alternative to domestic courts. Other states can
assume jurisdiction under the principle of Universal Jurisdiction. Countries that can
exercise wide jurisdiction include Belgium, which used it to try certain Rwandan
genocidaires
, others are Switzerland, and Spain.
Concerns about Prosecutions
Timing of Trials
The debate about prosecutions is often a choice about the timing of trials. In Latin
America, in 1980s the
real politik directed various countries away from trials to peace
commissions. However, as the situation in Chile demonstrates, the pendulum can
swing back in favour of prosecutions when the society has attained a certain amount
of political stability. When this happens countries have not been afraid to reopen the
issues of criminal accountability. Spurred on by the decisions of the House of Lords
in London, the Chileans started to go after past abusers.
Objections to Prosecutions
Arguments against retributive justice usually focus on the
destabilising effect of
trials
. The end of conflict or violent repression can be a volatile environment
requiring time and space for institutions to be rebuilt and strengthened. Trials are
involved and without the commitment of considerable resources, trials will become
mired in delays. Prolonged trials risk alienating sections of the community and can
engender resentments against the new order. This may trigger new cycles of
instability. These concerns are more pronounced where there have been ethnic or
racial divisions (Rwanda, Yugoslavia, South Africa). In these situations prosecutions
may be seen as a victor’s justice, undermining the prospects of reconciliation.
Prosecutions are also criticised because of the
procedural limitations of the
criminal trial
. In the common law tradition, trials focus on individual responsibility
and are governed by the strictest rules of evidence, which exclude all but the most
relevant evidence. Yet, repression and conflict generate a whole range of social
wrongs and moral culpabilities, which do not fit the narrow definitions of crimes, are
unsuitable for prosecutions, but are no less important to address. Neat distinctions
between victims and perpetrators are often impossible to sustain after during
prolonged conflicts, neither are trials capable of unearthing the causes and
complexities of conflicts.
Transitional justice mechanisms aim to give a central role to victims. Trials are
criticised for not being victim friendly. The criminal trial does not give meaningful
rights of participation to victims neither does it address adequately the issue of
reparations for the vast majority of victims. Victim-witnesses are also likely to be
4
subjected to rigorous cross-examination and are unlikely, even in the event of
convictions, to receive apologies from perpetrators.
Alternatives and Complements to Prosecutions
Truth telling
Many countries have resorted to mechanisms for establishing the truth about the past.
Truth commissions have thus become a vehicle for constructing a record of the past
and for giving voice to victims. The work of these bodies is not limited to taking oral
testimony; they carry out historical research and a wider-reaching investigation of the
structural causes of conflict or oppression. They provide a forum for victims to tell
their stories and in some cases to confront abusers. Their findings may also lead to the
awarding of reparations or to a better understanding of the causes of the past excesses.
This in turn contributes to efforts to prevent the repetition of the past.
Under the chair of Archbishop Desmond Tutu, the South African Truth and
Reconciliation Commission (TRC) has received plaudits for helping South Africans to
confront their past and to move towards reconciliation. Attitudes inside South Africa
towards the legacy of the TRC remain mixed but few South Africans can envisage a
history of the transition without the role of the TRC. Other truth commissions have
been established in Sierra Leone, Ghana, Peru East Timor and in the early years in
Argentina and Chile. The latest truth commission has been inaugurated in Liberia, by
the new president, Mrs Johnson-Sirleaf.
Reparations
Victims are often in the contemplation when transitional justice mechanisms are being
adopted. Reparations take different forms although most of the focus is often on
material elements. The scale of conflict poses challenges because of the numbers of
victims. Choices invariably have to be made between actual and more symbolic
reparations. Failures of reparations regimes often lead to resentments and discredit
transitional arrangements.
Reconciliation
Reconciliation means different things to different people. It can be seen as peaceful
co-existence amongst groups or former antagonists. It has been argued that
prosecutions do not necessarily promote reconciliation or truth telling, whereas noncriminal
processes offer a better chance of fostering reconciliation. The idea of
reconciliation remains strong although its content is not settled and it is notoriously
difficult to measure.
Other non –judicial approaches
Non-judicial approaches to dealing with crimes include; lustration for members of the
group perceived to have committed wrongs. Thus, members of the security services
may be bared from continuing in office or assuming certain responsibilities in the
future. This approach was used in the wake of the collapse of communism in Eastern
Europe to bar certain individuals from political and professional office. Such
measures as loss of suffrage, forcible retirement, freezing of assets can also be
employed.
5
Customary justice and reconciliation
Many societies of the world have devolved methods of dispute resolution focused on
community values and participation. In these models, a greater emphasis is often laid
on accepting responsibility rather than on adversarial procedures which usually entail
denials of wrong doing. Without the option of custodial penalties the actors must
focus on other goals such as truth seeking and reconciliation. However, customary
justice has weaknesses: its procedures do not often give equal voice and roles to
women or children. They might are also ill-equipped to deal with widespread crimes
such as during conflict. They work best where perpetrators and victims are from the
same communities (Northern Uganda, Acholi traditional justice) and share common
values and social structures. .
Non – prosecution – Amnesties
Amnesties are controversial and under international law and national legal systems
there is a growing hostility to amnesties and an increasing assertion by human rights
advocates that international law imposes a duty to prosecute the most serious crimes.
There is, however, a history of countries avoiding the prosecution route. Spain in the
1970s decided not to opt for trials; in Mozambique after the end of the war between
rebel RENAMO group and the FRELIMO government, elections were held as
RENAMO transforming itself into a viable political party. Today, RENAMO’s
Afonso Dhlakama is the leader of the opposition and Mozambique is registering
impressive growth and rebuilding its institution. At the time, there seemed to be no
credible alternative to the course Mozambique took.
The latest legal opinion is not sympathetic to amnesties, although it would probably
be wrong to assert that customary international law has evolved to the stage where it
can be said that there is a norm against amnesties. Examples of hostility to amnesties
include: the Yugoslavia Tribunal in the Furundzija (10 Dec 1998), which signalled
that amnesty provisions extending to the (jus cogens) crime of torture would not
receive international recognition. The Human Rights Committee has also expressed
concern over the incompatibility of amnesties in several countries with those
countries’ obligations under the International Covenant on Civil and Political Rights
(ICCPR). The Inter-American Court of Human Rights and the Inter-American
Commission on Human Rights too have found that amnesties in some Latin American
countries violate the American Convention on Human Rights on the grounds that
amnesties remove the most effective measure for enforcing human rights. In Sierra
Leone, the Special Court rejected the amnesty provisions of the Lomé Treaty (Kallon
SCSL – 2004 – 15 AR 72 (E)).
In reality, amnesties come in different forms and are more are more often granted
with conditions: requiring confessions or other reparations; excluding certain crimes;
or, with temporal limitations. Judgements about amnesties will depend on their scope
and the manner in which they have been introduced. Blanket amnesties, as do selfamnesties
(seen in some Latin American countries in the 1980s) rightly raise concerns
about impunity. In Argentina a month before elections were held in 1983, the military
introduce the Law on National Pacification granting amnesty to officials and the
military. Similarly in Chile, Pinochet’s government pardoned all criminal acts
between 1973 and 1978.
6
Even in qualified terms, amnesties are not always well received in transitional
countries. In South Africa, the amnesty provisions of the constitution were challenged
by some victims of apartheid, including, Steve Biko’s family. The Azanian People’s
Organisation (AZAPO) challenged the provisions in the Constitutional Court, which
upheld the provisions, emphasising the need to effect a successful transition in South
Africa (The Azanian People’s Organisation (AZAPO) v The President of the Republic
of South Africa 4 SA 653). The most credible amnesties, however, will not cover the
most serious crimes; will be justified in terms of the value of the prospects for
stability; and, will reflect societal consensus and victim participation in the decision
to offer pardons.
Conclusion
It is for the state to ensure and guarantee conditions of peace and stability within its
borders and for its people. In aspiring to build peaceful democracies countries will
continue to face difficult choices about dealing with the past. Although prosecutions
might at first appear to represent the best formal mechanisms for imposing justice and
accountability, the needs and resources of states emerging from conflict often do not
allow for exclusive or predominant resort to trials. Practical and political
considerations make it necessary to defer or even abandon altogether, formal
prosecutions in exchange for securing a stable future. States are arguably entitled to
adopt approaches which maximise the possibility of the cessation of conflict and
which favour the construction of a stable future. These countries may therefore opt for
a range of alternative mechanisms which will at the same time enhance the level of
participation of communities and victims in addressing the past and securing the
future. In weakened and vulnerable states faced with the inadequacies of the criminal
justice processes, alternatives will therefore thrive.
Truth telling and other mechanisms will continue to be refined to develop accurate
records of the past and in particular to give voice to victims. Amnesties, though
increasingly under challenge, are likely to continue to play a significant part in the
efforts to end conflicts or to recover from repression. The humanitarian consequences
of conflict and instability should weigh heavily on states and the international
community, in determining the most appropriate responses in ending conflict.
However, there is not yet a full dialogue between human rights law and humanitarian
law and values which often pull in different directions. Furthermore, without
addressing the structural injustices and inequities which fuel conflict, stability will
remain elusive in conflict prone states. Human rights instruments, on their own, do
not yet provide a satisfactory answer to these dilemmas. In particular they do not yet
offer the solutions to the political problems of state fragility and instability.
Transitional justice is an emerging effort to give coherence to alternative approaches
to dealing with the past and securing the future of unstable states.
19 March 2006
7
Country Profiles
Rwanda Summary
In 1994 genocide took place in Rwanda. Following the killing of president Juvenal
Habyarimana. Hard-line Hutu leaders hatched a plan to rid Rwanda of Tutsis as the
predominantly Tutsi Rwandan Patriotic Front was attempting to win political concessions
from the government after four years of civil war. The genocide led by the
interahamwe
militia drew in hundreds of thousands of Hutu participants. Thus, by the end of the end of the
war which drove out the genocidaires, hundreds of thousands of Hutus, including children and
women were complicit in genocide. Many fled to neighbouring countries fearing retribution,
and in the case of the
interahamwe and the army to regroup and then destabilise Rwanda.
Prosecutions
Following the genocide tens of thousands of people were arrested. The UN also set up the
International Criminal Tribunal for Rwanda (ICTR) in Arusha. By 2000 over 130 000, mainly
Hutu men, were awaiting trial in the Rwandan courts, for complicity in the Genocide. The
fledgling justice system simply could not cope with this number of suspects and most were to
remain in detention for the next 10 years.
Gacaca
– Complementing Prosecutions
Unable to cope with the numbers on remain for trial, the Rwandan government started to
explore a neo-traditional system called ‘
Gacaca’ primarily as a case management measure. A
faster clearance rate would enable more people to return to the communities and would
diffuse the political capital that Tutsi detractors were making out of the situation. Under the
new
Gacaca legislation, only the most serious category of offenders would remain in the
regular courts. It was estimated that this would reduce the number of suspects to be tried in
the criminal courts to no more than 5000.
When the communities were given a chance to address the genocide the effects have been
startling and unexpected. The
Gacaca courts spurned a new wave of refugees fleeing Rwanda
for Burundi in March and April 2005. As the hearings commenced, rather than reduce the
numbers of suspects the process has exposed even more people complicit in the genocide. As
a direct result of the findings of the
Gacaca courts the number of suspects has now risen to
over 500, 000 with at least one tenth of those liable as Category 1 suspects (orchestrators of
genocide).
Gacaca
is based on individualised truth telling. However, there has been resistance to the
courts with some suspects refusing to testify. These community courts have undoubtedly
given victims the opportunity to face perpetrators, but it is more doubtful that the
Gacaca
courts are contributing to a healing of relations between Hutus and Tutsis.
8
Press Reports on LIBERIA:
President vows not to 'sacrifice justice' for Charles Taylor
MONROVIA, 16 March (IRIN)
- Liberia's president Ellen Johnson-Sirleaf told the United
States Congress that she would not sacrifice justice on the matter of exiled former president
Charles Taylor who has been indicted for war crimes by a UN-backed special court.
Sirleaf, Africa's first female president, addressed the Joint Session of the US Congress on
Wednesday and said:
"But while we seek national unity and reconciliation, we must not sacrifice justice..Liberia
has little option but to see that justice is done in accordance with the requirements of the
United Nations and the broad international community."
Sirleaf also thanked Nigeria for giving Taylor exile - a move that enabled the signing of a
2003 peace deal and the end of 14 years of on-off fighting - and US President George Bush
for leading international pressure that forced Taylor to step down.
"I respect the life-saving role that our West African neighbours, particularly Nigeria, played
at no small cost to them in accepting to host Mr Charles Taylor," Sirleaf said. "Thanks also to
President Bush, whose strong resolve and public condemnation and appropriate action forced
a tyrant into exile."
Taylor's government was accused of supplying rebel forces in neighbouring Sierra Leone with
support and arms. As part of Sierra Leone's return to peace, a UN-backed court has indicted
those considered most responsible for war crimes during the country's ten year civil war,
among them Charles Taylor.
Nigeria has always maintained that it would hand Taylor over to the Special Court on the
request of a Liberian elected government. But Sirleaf, inaugurated as president in mid-
January, previously said the massive job of rebuilding war-battered Liberia, which has no
electricity or running water, came first.
Also on Wednesday the New York-based international rights group, Human Rights Watch
(HRW) called on the US to back the Liberian government in seeking Taylor's surrender for
trial.
"The Bush administration has played a positive role in pressing for Taylor to face trial at the
Sierra Leone war crimes court," said Richard Dicker, director of the International Justice
Programme at HRW. "Now the administration needs to see this through by giving Liberia's
new president strong backing to request Taylor's surrender. She should not be expected to
shoulder this burden alone."
And the bid to bring Taylor to justice appears to be moving. This week Sirleaf's government
said that it has asked Nigeria to begin consultations with the African Union and regional
economic group ECOWAS on the Charles Taylor issue.
"The Governments of Nigeria and Liberia are determined and committed to arrive at a
solution during these consultations that will be acceptable to the international community and
the United Nations, and at the same time guarantee the rights of Mr Taylor under international
laws," said a statement issued by the Liberian government.
9
But members of the former ruling National Patriotic Party, which Taylor used to head, said in
the Liberian capital Monrovia that it was untimely to decide the fate of their former
leader.[ENDS]
LIBERIA-NIGERIA: "Time to bring Taylor issue to closure," says Sirleaf
ABUJA, 17 March (IRIN
) - Liberia has requested the extradition from Nigeria of former
Liberian head of state Charles Taylor, the Nigerian presidency said on Friday.
President Olusegun Obasanjo's office said in a statement that Liberia's newly elected head of
state, President Ellen Johnson-Sirleaf, had made a "formal request" for the extradition of the
former warlord.
And while on a visit to the US on Friday, Liberian President Ellen Johnson-Sirleaf told the
UN Security Council in New York that "it is time to bring the Taylor issue to closure."
Taylor, who was indicted for war crimes by a UN-backed Special Court in Sierra Leone, fled
into exile to Nigeria in 2003 as rebel forces closed in on the capital Monrovia and the United
States led international calls for him to step down.
Taylor's exit from power was crucial to the signing of a 2003 peace deal in Liberia that ended
14 years of a brutal on-off civil war, and despite repeated calls for his handover to the court,
Obasanjo had always insisted he would only hand him over to a government that had been
democratically elected.
Johnson-Sirleaf, who is currently on a visit to the United States, was elected to office last
November in the first democratic polls held in the country since the peace deal.
"In keeping with his commitment to give consideration to any formal request from a
democratically elected government of Liberia for the return of former president Charles
Taylor, President Olusegun Obasanjo has duly notified the chairmen of the African Union
(AU) and the Economic Community of West African States (ECOWAS) that President
Johnson-Sirleaf has made such a request," the Nigerian statement said.
Nigeria will consult with the AU and ECOWAS before responding to Sirleaf's request, it
added.
While Human Rights Watch representative Corinne Dufka, who is based in Dakar, praised
Sirleaf's "enormous step," she criticised Nigerian plans to consult with regional bodies.
"Nigeria needs to respond favourably. We do not believe [Obasanjo] needs approval from the
African Union or ECOWAS,' Dufka told IRIN.
Representatives of the Special Court in the Sierra Leonean capital Freetown also welcomed
the news.
"This is a breakthrough in many ways - we are glad to hear that things are finally progressing
and would also like to see a conclusion as soon as possible," Harpinder Athwal, Special
Assistant to the Prosecutor told IRIN.
The Special Court, due to close in 2007, is currently facing a funding crisis and only has
enough money to last three or four more months. However, if Taylor were to appear in the
dock donors would likely stump up the cash necessary to complete his trial, said Athwal.
10
"It would take about six months to organise and conduct his trial.[but] if Taylor were to arrive
by April, his trial could be completed alongside the others," Athwal said, adding that the life
of the court could always be prolonged if Taylor was sure to face trial.
But on the streets of the Liberian capital Monrovia, where some fear that Taylor's arrest could
re-ignite old quarrels, reactions were mixed.
"We fought for Taylor to leave power and he left. Peace is now in Liberia," said Swaliho
Mansaray a 30-year-old former fighter with the largest rebel group, Liberians United for
Reconciliation and Democracy, that was originally established to chase Taylor out of office.
"It is unfair at this moment to have him sent to court for crimes he committed in Sierra Leone.
We should not encourage that. Sierra Leoneans and Liberians have all decided to put the past
behind them," he continued.
But others want to see Taylor in the dock: "Taylor made us suffer too much in this country
and helped to destroy Sierra Leone just for their diamonds," said Jerry Carter, who hawks
cosmetics on the war-blackened streets of Monrovia. "Now it is time for him to face justice
for all the wicked things he did."
Although Taylor has left Liberia, many of his former allies as well as his ex wife won seats in
the new parliament and senate during elections held late last year, the first since the end of
war.
Lawrence George, chairman of Taylor's former ruling party, the National Patriotic Party
(NPP), told IRIN that the fate of the former leader should go before the legislature.
"Now that the Nigeria government has confirmed receipt of a formal request to have Taylor
turned over, it is up to all stake holders - local party leaders, the regional body and the
international community - to jointly decide, not only the president," George said.
The NPP has formally requested that the legislature debate the matter, said George. Sirleaf
holds the presidency, but her party the Unity Party, does not have a legislative majority.