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.