UNU Conference on
The rule of law and transitional
justice: the way forward?
Presentation on "Re-examining the context of transitional
justice"
by Helena Cobban, columnist, The Christian Science Monitor
and senior fellow, Univ. of
Virginia Institute for Practical Ethics.
hc3z@virginia.edu
(This is a working
paper, not to be reproduced or
disseminated without permission of the author at this time)
I imagine, as a representative of the media, that some people might like me to talk about the challenge of finetuning the "outreach" that the ad-hoc tribunals conduct with respect to their "target societies"—a task that the ICC administration has not even started to tackle yet. Certainly, there is much more that could and should be done regarding "outreach" by both ICTY and ICTR. For example, in Longman et al's 2002 study of public attitudes to the ICTR, inside Rwanda, they found that on more than half they questions they asked about the ICTR, more than half of the respondents there answered either "I am not informed enough to answer", or, more simply, "I am uncertain about the answer."[1]
But I think that, when looking at the work of the ad-hoc tribunals, to focus too much on their failures in the technical aspects of outreach to the "target" societies is analogous to what happens when a government like my own here in the US focuses too heavily on the failures of its "public diplomacy" in the rest of the world without being prepared to conduct any serious re-examination of the content of its own policy. In both cases, I would argue, what is needed first and foremost is a rigorous re-examination of the policies being pursued, and their political context in the real world; and only afterwards an examination of the media-related aspects of all of that. And now, regarding the ad-hoc tribunals, we have more than a decade's-worth of experience to look back and evaluate.
Over the past four-plus years I have spent much of my time examining, with support from the US Institute of Peace and other institutions, the effects on the politics of some real countries of the very different kinds of post-conflict policies that their governments adopted toward the legacies of recently-past atrocities.
Using
a broad, system-level approach I have looked mainly at the policies adopted in
this regard by three governments, with varying degrees of involvement by the
international community. They are:
In addition to looking at those three countries, I have also looked fairly closely at aspects of the history of the Nuremberg Tribunal and the 12-year record of the ICTY.
My main approach has been a "ground-upwards" approach; that is, to focus primarily on the effects the various policies have had on the politics and general wellbeing of the people in the countries concerned, rather than looking at more abstract issues such as "the development of the jurisprudence of international criminal justice", or arcane points within this newly developing body of law. I am, however, interested in many of the procedural, administrative, and broader political aspects of the emerging international criminal "system", since I believe that while they embody a lot of idealism they also reflect a system that is dangerously removed from any effective form of democratic accountability, and that has been subject to considerable and damaging amounts of politicization at the highest levels. That politicization is regrettable but it is almost inevitable, given the world as it is.
Looking at the effects the ad-hoc tribunals have had on post-conflict reconciliation in former-Yugoslavia and Rwanda is quite necessary; in addition, it flows quite naturally from the UNSC resolutions that established the tribunals, both of which expressed the "conviction" that the tribunals would "contribute to the process of national reconciliation and to the restoration and maintenance of peace" within the territories concerned. One of my goals in structuring my study of Rwanda, Mozambique, and South Africa in the way that I did was to put that "conviction" to the test, since as we all know at the times of conflict termination in Mozambique and South Africa those governments adopted policies very different from the ones adopted by both the international community and the Rwandan government with respect to Rwanda.
One of my main propositions, with regard to these three countries as to virtually all other cases of the commission of mass atrocities in today's world, is that there is an intimate nexus between political conflict and the commission of atrocities. Atrocities of the scale that engages the attention of the international community do not come from nowhere. In any society, settled or otherwise, individual sociopaths or small groups of sociopaths can commit atrocities on a small scale. But when we are talking about atrocities that engage the international community we are talking about atrocities that are intimately connected with, and spring from, a situation of deepseated political conflict. Like the conflict between the "Hutu power" networks and their opponents in Rwanda in 1990-94; or that between the apartheid government and its opponents in South Africa for decades leading up to 1994; or that between Renamo and Frelimo in Mozambique in the years 1977-1992.
It is only in the circumstances of such deepseated political conflicts that the generally near-total human taboos on killing other humans and the commission of other atrocious acts can be eroded or dissolved on a scale broad enough to "allow" the widespread commission of those atrocities. Therefore, if our goal is to prevent the re-eruption of a climate of atrocity commission and condoning in any society, then the primary way to do that is to satisfactorily end the political conflict.
But is everyone's primary goal indeed to prevent the re-eruption of a climate of atrocity commission and condoning? Or, are many people—especially people in basically comfortable and secure western societies that have not experienced atrocity-laden political conflict for some generations now—more interested in trials and punishment for their own sake? This is an important question.
One key tool I started using in my research was a list that Martha Minow of Harvard had developed, in which she sought to describe the major goals that she thought a nation or society should address in the aftermath of mass violence. Her list was:
1.
Overcome communal and official denial of the
atrocity; gain public acknowledgment.
2.
Obtain the facts in an account as full as
possible in order to meet victims’ need to know, to build a record for history,
and to ensure minimal accountability and visibility of perpetrators.
3.
Forge the basis for a domestic democratic order
that respects and enforces human rights.
4.
Promote reconciliation across social divisions;
reconstruct the moral and social systems devastated by violence.
5.
Promote psychological healing for individuals,
groups, victims, bystanders, and offenders.
6.
Restore dignity to victims.
7.
Punish, exclude, shame, and diminish offenders
for their offenses.
8.
Accomplish these goals in ways that render them
compatible rather than antagonistic with the other goals.[2]
What I did in some of my research—though I did not, unfortunately start doing this until after my research visit to Rwanda—was that I asked my Mozambican and South African interlocutors what they thought of this list and how, based on their own experience, they might amend it. Most of the Mozambican and Black South African interlocutors prioritized Minow's #4 strongly over the other goals in her list, with #3 in a second rank and numbers #5 and #6 just behind it. They seemed largely indifferent to #1, and indifferent or even hostile to #2 and #7. (Number 8 is not a substantive goal.) In addition, they stressed the needs to: take steps to guard against any relapse back into conflict and violence; undertake a broad and committed campaign of constructing/reconstructing the community’s physical and institutional infrastructure; pay keen attention to righting the distributional injustices of the past; and find ways of reintegrating all former combatants into the new society.
Based on those responses, a revised list of post-conflict meta-goals produced by people in those two societies might look like this:
Top rank:
·
Guard
against any relapse back into conflict and violence.
·
Actively
promote reconciliation across all inter-group divisions.
·
Urgently
work on restoring and upgrading the community’s physical and institutional
infrastructure.
·
Restore
the moral systems appropriate to an era of peace.
·
Build a
domestic democratic order that allows for nonviolent resolution of internal
differences and respects and enforces human rights.
·
Reintegrate
all former combatants into the new society.
·
Start
righting the distributional injustices of the past.
Second rank:
·
Promote
psychological healing for all those affected by the violence and the
atrocities, restoring dignity to them.
·
Keep
records of the facts such as are needed to meet victims’ needs and to build a
record for history.
I submit it is very important to listen carefully to the views of policymakers and opinion leaders within those two southern African communities precisely because the peoples of those two countries have been startlingly successful at escaping from the cyclical or otherwise iterative forms of mass political violence that have so often plagued societies still reeling from recent conflict. In both Mozambique and South Africa, the years that have passed since the conflict-termination events of the early-1990s have seen: a near-definitive end to the political conflict that had plagued those societies before then; the transformation of what remained of that conflict into one that is now pursued overwhelmingly through peaceful political institution; the strengthening of those institutions and of the kinds of democratic norms that they both embody and engender; and, most importantly, a notable level of actual reconciliation between the formerly parties and an end to the commission of atrocities.
I recognize that there are many,
many differences among the three countries that I studied, regarding both the
nature of the conflict that was terminated in the early/mid 1990s, the scale of
the atrocities that were committed in the course of that conflict (though we
should never forget the scale of the atrocities committed during Mozambique's
civil war). Equally importantly, the
actual mode of conflict termination was significantly different. In both
In
Fifty years previously, the conflict
between the Allied and Axis powers in World War 2 was also terminated through a
military victory; and as in
We can certainly learn a lot by re-examining the history of a policy that Gary Bass, citing Robert Jackson, quite rightly summed up as one that was designed not to implement but to "stay" the hand of vengeance.[3] We can also learn a lot from looking at what the Mozambicans and South Africans did, in the early/mid 1990s, to escape from a climate of deeply entrenched political violence. In the latter two cases—as also, I would argue, in the broad outlines of the policies adopted by the Western occupation powers in post-WW2 Germany and Japan—these policies were much more in line with the essentially restorative response that many non-western peoples have toward instances of wrongdoing, than with the highly individualized and essentially retributive approach advocated by many of the western-origin people who currently dominate the main international institutions. One of the key differences between these two approaches is the over the issue of how former perpetrators are to be treated, with most westerners favoring an approach of “punish, exclude, shame, and diminish” (as in Minow’s #7), while many or most non-westerners tend instead to favor their reintegration into productive society.
At the policy level, this difference
is manifested as one over the acceptability of amnesties, and it is over this
issue that the international community needs to do the most re-thinking. If the notable success of a
Since I don't have time to present
all the findings of my work so far, I just want to note here that both the speed
and the cost of atrocity-response mechanisms are factors that need to be
assessed carefully. Speed is a factor because to dwell for too long on the
terrible and traumatic harms of the past can—for societies perhaps even more
than for individuals—paralyze the ability to move forward into rebuilding the
productive relationships that future generations need. At
And finally, one word regarding costs (and relative benefits), which I am sure are a concern both for a UN that perennially undergoes budget crises and perhaps even more so for people in very low-income countries who look at where the benefits of the major UN institutions and policies end up going.
In September 2004, when I calculated
the costs of the various procedures I was looking at, I estimated-- based on
the insufficient scraps of data then available-- that the ICTR had by then
consumed around $1 billion of international "aid" dollars. At that point it had completed processing 12
cases while a further 11 awaited their appeals. Let's say it had
"completed" trying those 23 cases.
The per-case cost was therefore roughly $43 million. In
In
I submit that the per-case costs of
the ICTR's work are grossly disproportionate to the needs of the Rwandan
people. While the costs of any given
atrocity-response mechanism cannot be the single over-riding concern, they must
in a time of scarce resources be taken into account. And as H.L.A. Hart and other legal theorists have
clearly recognized, at the broadest system level any criminal-justice mechanism
can and must be submitted to the same kind of cost-benefit analysis as any
other policy that a government or set of governments might choose to adopt.
[1] Timothy
Longman et al., Connecting justice to human experience", in Eric Stover
and Harvey M. Weinstein, eds., My neighbor, my enemy: Justice and community
in the aftermath of mass atrocity (
[2] Martha Minow, “Hope for healing”, in Rotberg, Robert
I., and Dennis Thompson, eds., Truth v. Justice : The Morality of Truth
Commissions (
[3] Bass, Gary Jonathan, Stay the Hand of Vengeance:
The Politics of War Crimes Tribunals (