After mass violence, a nation or society needs to address at least eight goals:So, one of the things I did as I worked on the project-- especially as my research approach became more focused, during my second visits to Mozambique and South Africa-- was to take copies of that list around, and use it as a springboard for conversations with my Mozambican and South African colleagues. I also conducted some similar, but less focused, enquiries of the same nature with colleagues in Rwanda.
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.
After my many discussions with interlocutors in Mozambique, South Africa, Rwanda, and elsewhere, and my reflections on these experiences as outlined above, I now offer my own modified list of meta-tasks for such societies [i.e., societies reeling from recent mass violence], grouped into two ranks by their urgency as follows:So anyway, TJF readers, there you have it. (Next up, in terms of excerpts from some of the thinking in the book, will probably be the reflections I engaged in there on 'thinner' and 'thicker' types of accountability... )
Top rank (all of equal urgency):
1. Establish rigorous mechanisms to guard against any relapse back into conflict and violence.
2. Actively promote reconciliation across all inter-group divisions.
3. Build an equality-based domestic democratic order that allows for nonviolent resolution of internal differences and respects and enforces human rights.
4. Restore the moral systems appropriate to an era of peace.
5. Reintegrate former combatants from all the previously fighting parties into the new society.
6. Start restoring and upgrading the community’s physical and institutional infrastructure.
7. Start righting the distributional injustices of the past.
Second rank (of somewhat less urgency):
8. Promote psychological healing for all those affected by the violence and the atrocities, restoring dignity to them. (If the top-rank tasks are all addressed, those moves will anyway do much to achieve this; but it will probably need continuing attention.)
9. Establish such records of the facts as are needed to meet victims’ needs (death certificates; identification of the burial sites; etc) and to start to build a record for history.
Several of these items are ones mentioned by Minow in her listing. The most stark difference is over what each of us advocates with regard to former "offenders". Whereas Minow advocated the "punishment, exclusion, shaming, and diminishment" of offenders, the evidence strongly indicates to me—and I hope to my readers, as well-- that a well-crafted policy of amnestying, reconciliation, and reintegration of offenders might serve the longterm interests of many of these very vulnerable societies very much better.
CSVR in Johannesburg is associated with this site, I think. They held an event to launch a book called "Struggles in Peacetime, Working with ex-combatants in Mozambique", on March 28th, together with a couple of other organisations.
The first thing that came across was that using "ex-combatants" (some people don't like the term) as positive promoters of peace is more than expedient, but rather indispensible.
So far so good.
Unfortunately, if the post-conflict economy is capitalist, neo-colonial and neo-liberal (or worse, neo-conservative), the usual development projects that rely on petty-bourgeois entrepreneurialism (whether individual or co-operative, agriculatural or not) are bound to fail. In my opinion, that is.
Further than that, this programme has no component addressed to the most meta of meta-tasks, which is the ending of war and the cause of war which is imperialism. It relies on the hope that wars will dimish somehow in Africa and ignores the experience of decades that shows a continuous record of endemic war, fuelled by imperialist interests.
The same imperialist interests are what make prosperity based on local and small enterprise not only close to impossible, and always exceptional, but practically illegal under the WTO. Imperialist efforts to render local economies open to big capital are increasing. The latest is called NAMA (Non-Agricultural Market Access).
A TJ worldview that does not recognise these things and act upon the knowledge is more than complicit. It is positively obfuscatory in practice.
Frantz Fanon said: "There are no innocents and no onlookers".
Posted by: Dominic at April 8, 2006 11:29 AMDear Helena,
Let me add my voice to the chorus of those applauding your commitment to reflecting on your personal experiences pertaining to transitional justice mechanisms in a systematic manner so as to provide specific and generalizable suggestions useful to all the relevant parties. My comments are from an 'outside looking in perspective,' i.e., I have none of your experience and expertise in this area.
1. I'm surprised there's no specific mention of the importance of establishing a commitment to the rule of law, both a municipal legal order as well as international law.
2. While I think social norms go some distance in stabilizing or furthering what you refer to as moral systems, the modern (and postmodern) era would seem to suggest that the rule of law is not an insignificant component in concretizing and capturing at least some of the moral values and principles of such systems. Reconciliation, nonviolent conflict resolution, and so forth deserve the prominence you have given them, yet it seems sometimes society must resort to the forms of coercion found in the legal system to contain those of darker motivations and aims, to restrain those hell-bent on using social and political fora as stages for their psycho-pathologies.
3. While Minow clearly references crimninal justice mechanisms and the sanctions found in informal social norms, you assiduously avoid resort to such measures by way of calling to account those responsible for egregious human rights violations. Here I side with Minow inasmuch as I think your approach undermines the respect for the rule of law so urgent and important in both the short- and long-run in societies emerging from mass violence. The implicit message here is that should things descend into chaos and violence once again, one might resort to any means necessary in imposing one's political will on others, confident that one will not be held legally responsible for criminal conduct. At the very least, and insofar as is practically possible, it seems the leaders of those who have committed egregious acts of violence and human rights violations need to answer for their deeds in the arena of criminal justice. The only scenario I can envision trumping such a requirement is one in which there is widespread democratic support for the granting of amnesty and the like, meaning all the relevant social actors are willing to legally forgive such individuals.
4. I think you're right about 'psychological healing': it's largely a by-product or consequence (much as self-esteem is the by-product of consequence of learning to accomplish things for oneself, etc.) of taking care of the aforementioned items on your list (in addition to criminal justice!) and thus is superfluous or redundant as a separate item.
5. Amnesty, reconciliation and re-integration of (most) offenders are laudable and necessary goals, but I wonder if they must come at the expense of criminal justice. Perhaps this is democratically negotiable in each society. Of course problems might arise if the jurisprudential system is manipulated by those wanting the legal equivalent of 'blood vengeance' or those seeking solely to punish their (former) enemies.
In general, I also wonder if you have some recommendations regarding the role of 'outside parties', like NGOs, transgovernmental organizations, UN bodies and agencies, etc. in periods of transition. Should such groups and organizations stand back as it were and not involve themselves in transitional justice mechanisms, or do they possibly have a significant part to play here?
I look forward to reading your book.
Best wishes,
Patrick
Helena,
While my comments above did not address the specific arguments in your Foreign Policy article, I thought perhaps it might be useful to consider some methodological principles Jon Elster derived from Tocqueville's Democracy in America. Of course these principles are highly general, but I do think they address (if sometimes indirectly and in varying degrees) topics central to the assessment of mechanisms of transitional justice, in particular, with regard to war crimes tribunals, the International Criminal Court, and Truth Commissions. I quote here from Elster's Sour Grapes: Studies in the Subversion of Rationality (1983), leaving out most of the examples used to illustrate the specific principles:
1. One must look at the consequences that emerge when the institution in question is widely used rather than marginal.
2. Any given institution will have many consequences, some of them opposed in their tendency. It is imperative, therefore, to look at their net effect.
3. One should not evaluate a given institution or constitution according to its efficiency at each moment of time, but rather look at the long-term consequences.
4. One should not confuse the transitional effect of introducing an institution with the steady-state effect of having it. [For example,] the initial effect of a revolution may be loose morals, yet the steady-state effect may be to impose stricter morals.
5. The four principles just indicated can only be applied after the fact, to trace the consequences of a system that has been in operation for some time. Our knowledge about social causality is too slight to permit confident predictions about the effects of an as yet untried system.
Paraphrasing Tocqueville's objection to Edmund Burke's evaluation of the French Revolution, Elster writes 'that institutions which are viable in the large and in the long term may not be so in the small and short term.'
In Elster's Closing the Books: Transitional Justice in Historical Perspective (2004), he introduces some conceptual distinctions that may be relevant as well. First, he suggests we look at three forms of institutional justice: legal justice, political justice, and administrative justice: 'we may conceptualize the institutions of justice as a continuum, with pure legal justice at one end and pure political justice at the other. Administrative justice may be closer to the legal or to the political end of the spectrum, depending to the extent wo which the officials to be purged have the benefit of due process.'
PURE POLITICAL JUSTICE 'occurs when the executive branch of the new government (or an occupying power) unilaterally and without the possibility of appeal designates the wrongdoers and decides what shall be done with them.' [again, I've ommitted his rich examples]
PURE LEGAL JUSTICE 'may be characterized by four features: First, the laws should be as unambiguous as possible, to reduce the scope for judicial interpretation. Needless to say, there will always be some room for legal discretion. [....] Second, the judiciary should be insulated from other branches of government. Beyond a narrow range of offenses, there is no room for military courts. Professional judges should be assigned randomly to cases in order to prevent the governement from selecting "reliable" judges to try "delicate" cases. Lay judges and jurors should also be chosen randomly from the population at large. [....] Third, judges and jurors should be unbiased when interpreting the law. At a minimum, they should not distort the meaning of the law to justify a decision they have already reached for extralegal reasons. While bias may be produced by lack of insulation, it can also occur on its own. In transitional justice, judges and jurors, no less than legislators, illustrate Seneca's dictum that "anger wishes to have the decision which it has given seem the just decision." In such cases, bias results in excessive severity. [....] Finally, legal justice must adhere to principles of due process, notably: a) adversarial and public hearings; b) the right to choose one's lawyer; c) the right to appeal; d) no retroactive legislation or retroapplication of the law; e) respect for statutes of limitations; f) determination of individual guilt; g) a presumption of innocence that places the burden of proof on the prosecution; h) the right to a speedy hearing (justice delayed is justice denied); and i) the right to due deliberation (justice expidited is also justice denied).'
As Elster documents, 'these requirements are routinely violated in transitional justice.'
Another important point is that 'a functioning legal system is a source of uncertainty. FULL CERTAINTY EXISTS ONLY IN SHOW TRIALS' [capitalization here in lieu of italicization].
Your FP article is an eloquent recognition of the fact that during a period of transitional justice, a new democratic regime confronting the past may 'have to choose between justice and truth.' [again, Elster provides many concrete examples, and he discusses several transitions in which a decision was made not to open up the past]
Elster's categorization of the agents involved in transitional justice is helpful as well; 1. wrongdoers; 2. victims; 3. beneficiaries (of the wrongdoing); 4. helpers: those who tried to alleviate or prevent the wrongdoings while they were taking place; 5. resisters: who fought or opposed the wrongdoers while these were still in power; 6. neutrals: neither wrongdoers, victims, helpers, nor resisters; 7. promoters: organizers and advocates of transitional justice; 8. wreckers: those individuals who try to oppose, obstruct, or delay the process of transitional justice. Importantly, Elster goes on to note that 'a given individual may appear in more than one category, successively or simultaneously.' [he discusses eleven different role combinations] As one might guess, this complicates matters immeasurably when dealing with questions of legal culpability.
Both your article and the above delineation of meta-tasks is at least an implicit recognition that 'the leaders of an incoming regime may not be free to implement transitional justice as they please, if the transition was ushered in by negotiations that included provisions of amnesty or clemency.' As Elster explains, when the incoming forces are negotiating with the outgoing leaders, in order to achieve a peaceful transition (one goal), they may have to sacrifice (another goal) transitional justice. To the constraints on transitional justice of a negotiated transition, we can add the 'scarcity of reliable judges,' most perversely evidenced in those many cases in which 'the judiciary have been part and parcel of the regime to be judged.'
That said, I stick to what I said in the previous comments above but want simply to acknowledge how arduous the goals of transitional justice are when laid alongside the equally worthy pursuits of truth and peace. Your work clearly shows we may not be able to 'have it all,' that tradeoffs and concessions may have to be made....
All the best,
Patrick
Posted by: Patrick S. O'Donnell at April 9, 2006 12:06 PM
Hi, both of you. Thanks for some constructive and thought-provoking comments.
Dominic, I'm interested to see what you wrote about that CSVR program. I haven't seen anything about it on their website... But the site seems rather seriously out of date these days...
Actually, when I was in Mozambique in 2003, my main research associate was Salamao Mungoi, a senior staff member at ProPaz, which was an organization that ex-combatants of both Renamo and Frelimo formed together, ways back when, in order to do peace-promotion work throughout the country. His own story and the stories of his colleagues and others that they worked with in the various ex-combatants' movements were all really, really inspiring. Another key point: in all these organizations, the members had decided early on to include both Frelimo and Renamo ex-combatants....
Salamao said that a team from ProPaz had done a training workshop with a joint group from the ANC and Inkatha, and that the South Africans had been amazed at how well the ex-Renamistos and the ex-Frelimistos had all gotten along...
So some of those stories are in the Mozambique chapter of the book.
Patrick, I too am quite a fan of Jon Elster. However, he seems to work almost totally within a "western civ" framework and to give scant attanetion to the many other great traditions there are out there in the world regarding how to address justice issues in the aftermath of mass violence. Certainly the conflict-transcending practices from (many, most, or perhaps even nearly all?) indigenous African traditions are worth identifying, understanding, appreciating, preserving, and where possible supporting. Same is true of many non-"western" traditions, including native-American practices here in the Americas, Maori practices in Aotearoa/NZ, native-Hawaiian practices, etc etc...
I agree with you, in general, about the need to build an order going forward that is based on the rule of law. (I thought that would have been covered in the call for attention to building an "equality-based domestic democratic order" in my #3, but maybe I shd have been more specific.)
One of the key things that allowed for the success of the Mozambicans' reliance on a total blanket amnesty for civil-war-era atrocities was their clear understanding that the end of the war marked a clear and universally (among them) understood "transition point" between the truly ghastly violence of the war era and the very different moral order of the era of post-war peace.
In other words, their understanding and respect of that break-point meant that they could build a rule-of-law order going forward from October 1992 while also drawing a clear line under the victimization and grievances of the past.
They also have a vivid understanding of the generative power of words: the idea that talking about past violence can actually bring it back to life in your heart. So they've been very wary of any attempt to talk about the violence of the civil war in any detail at all, preferring just to talk generally about the violence of the war era and leave it at that. Their exorcization of the violence was achieved through performative rather than verbal means.
The big contrast in my study was between that approach and the one used in Rwanda, where the people are still being forced at every level-- ICTR, national courts, gacaca courts-- to re-live and re-describe and re-examine the violence of the genocide era over and over again... And they've been doing it almost non-stop for 12 years now.
At least in South Africa-- where the TRC process was a mixture of verbal and performative-- the process also had a strictly limited duration and the people have moved on to other (though often related) issues. In fact, that's what happened in post-WW2 Germany as well.
... I think the best role for rich and powerful westerners is to understand that "we" don't have the answers; that the criminal justice system that many of us see as dysfunctional in our own societies is certainly not a panacea for everyone's ills; that other societies have their own cultural resources and traditions, many of which might actually work a lot better than ours; and to approach people in societies reeling from recent or still-continuing violence with huge compassion, respect for their skills as survivors, a desire to support them in their own exercize of agency in determining their social and political futures; and the willingness to listen at length and quite open-mindedly to how THEY define their needs.
One hint: when people in such societies say they seek "justice", most often it is issues of basic economic/distributive justice and phsyical survival they are talking about, and not the orderly workings of a western-style criminal court. Gee, I wonder why?
Posted by: Helena at April 9, 2006 01:47 PMIt's a ProPAZ book, published by NIZA (Netherlands Institute for Southern Africa). It's not a big book, it's 56 pages.
The people who spoke at the launch were Jacinta Jorge, Director of ProPAZ, Pauline Dempers of Coalition for Peace in Africa (she's from Namibia), Esther Droppers from NIZA, and Hugo van der Merwe of CSVR. Chairperson was Richard Smith of CSVR.
I looked at the NIZA site but couldn't find it there. All Google brings up is the programme of the launch, which is here: http://www.wits.ac.za/csvr/eventarc/ev280306.htm
Best wishes.
Dear Helena,
Just wandering why my comments in response to your last letter were deleted.
Best wishes,
Patrick
Oh my gosh, Patrick, I am SOOO sorry. I've been waging a horrendous battle against spam on this site and doing mass-deletes on some really nasty comment spam... But I guess I included that comment in the 'delete' by mistake...
Any chance you cd retrieve it from somewhere or recreate it?
Again, I am incredibly sorry.
Posted by: Helena Cobban at May 9, 2006 09:51 PMThat's ok...I was a bit over-the-top in some of the remarks anyway, so I'll pretend it was meant to be! Still, at a later date I hope we can carry on this discussion, perhaps after your book appears.
All good wishes,
Patrick
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