Transitional Justice Forum

'Amnesty' book chapter now on the web

Katherine McNamara, the editor of the online magazine Archipelago has now published the concluding chapter of my book Amnesty after Atrocity?: Healing Nations after Genocide and War Crimes on the web, with my permission and that of the publisher. So now you can read it here.

The hope is, obviously, that you'll be so intrigued by the arguments that you'll go and buy the whole book. Then you can come and discuss it here.

What do we mean by 'justice' and 'accountability'?

Two of the key watchwords used by people who argue for war-crimes prosecutions in the aftermath of atrocity are the need for "justice" and "accountability."  Yet it seems to me that many of these people construe both these concepts in a narrow and essentially backward-looking way that often has the effect of keeping people in communities that are struggling to escape from very serious recent, or even ongoing, political conflict mired in the grievances and blame-games of the past rather than investing their energies in figuring out how to build a rule-of-law-resecting political system going forward and then working together to build it.

This is one of the major conclusions I have reached after reflecting deeply on the findings of my recent book Amnesty After Atrocity?: Healing Nations after Genocide and War Crimes.  In the book I compared the effectiveness of the policies that three sub-Saharan countries adopted at the point, in the early 1990s, when they were trying to bring to an end long-running political conflicts that had been marked by the widespread commission of very grave atrocities.  The three countries were Mozambique, whose two major political movements in late 1992 concluded a General Peace Agreement (GPA) that ended the civil war that had beset their country since 1977;  South Africa, whose major political movements agreed on the holding, in April 1994, of the country's first-ever one-person-one-vote democratic election, bringing to an end 40 years of apartheid and 350 strife-torn years of colonial rule; and Rwanda, where in July-August 1994 the Rwandan Patriotic Front (RPF) won a decisive battlefield victory that brought to an end four years of armed civil conflict that culminated in the three months of the anti-Tutsi genocide committed by their 'Hutu Power' opponents.

As each of those conflicts came to an end (or, more realistically, a conflict termination 'opportunity'), these countries' new, post-settlement rulers each pursued a very different approach to the challenge of dealing with the legacies of the recent atrocities.  In Rwanda, both the national government and the international community pursued policies dominated by the need for war-crimes prosecutions.  In Mozambqiue, the post-GPA government was bound by one of the provisions of the GPA that stipulated that a blanket amnesty be granted to all who had committed criminal acts during the civil war.  Instead of launching any war-related prosecutions, the government focused on disarming and demobilizing as many as possible of the former combatants from both sides and reintegrating them as quickly as possible into normal civilian life.  This policy, known as 'DDR' in standard U.N. jargon, was enthusiastically supported by the international community which underwrote most of the funding needed for it.  In South Africa, the post-democratization government was similarly bound by an agreement concluded during the pre-settlement negotiations that promised that an amnesty would be provided to all who had committed criminal acts during the conflict.  In South Africa's case, subsequent legislation spelled out that these amnesties, and the resulting immunity from criminal prosecution, would be offered only to those who individually applied for them to a special committee that was part of the country's post-apartheid Truth and Reconciliation Commission (TRC), and then only if they could satisfy that committee that (1) those acts had been been politically motivated, and (2) they had also shared fully with the committee everything they knew about such politically motivated criminal acts committed by themselves or others during the apartheid era.  So the deal there was amnesty in return for truth-telling.

In my book I examined these varying approaches to dealing with the perpetrators of past atrocities.  In addition, since I was doing this work some dozen years after those respective political transitions, I sought to to understand and analyze the effectiveness of those approaches over those crucial post-conflict years.  One early challenge I came up against was to enquire: effectiveness at doing what?  Now, I know that many lawyers and legal theorists are reluctant to apply extrinsic yardsticks to the work of juridical institutions, which they hold somehow to exist in a rarefied zone of pure deontology far from the grimy world of politics or history.  But for my part, since I am a long-time participant in the international human-rights movement, I would hope at the very least that the policies adopted by the government of any country still reeling from a period of widespread atrocity commission would lead to a measurable and sustained improvement in the rule of law situation within that country. 

As it happens, there is an institution in New York City that, on a world-wide, country-by-country basis measures this every year.  This is Freedom House, which each year assesses each country on a two-headed scale, giving it one number for "political rights" and another for "civil liberties".  It is a very specialized way of ranking.  The best score a country can win is "1; 1", and the worst is "7; 7"; therefore, there are potentially twelve total intervals of variability between the top score and the bottom score. I checked the Freedom House rankings for the the three countries I had studied, for the years 1994 and 2006 (and for several years between), and I discovered the following:

	Rwanda	South Africa	Mozambique
Movement on Freedom House indicators, 1994-2006.	1994:  6 ; 5 2006:  6 ; 5 Total positive movement: 0	1994:  5 ; 4 2006:  1 ; 2 Total positive movement: 6	1994:  6 ; 5 2006:  3 ; 4 Total positive movement: 4

Among the components of the "political rights" situation inside each country that I was able to examine in some detail was the fact that, by 2006, South Africa and Mozambique had each been able to hold three rounds of national elections that outside observers had judged to be essentially free and fair.  (Mozamabique had a little more trouble organizing demonstrably fair elections at the provincial level, but was able to pull that off in, I think, 2005.)  In Rwanda, meanwhile, by 2006 the RPF's post-genocide regime had still not been able to organize any free and fair nationwide elections, and successive reports by international human-rights bodies were painting a bleak situation regarding such issues as civil liberties, the independence of the country's judiciary, and so on.

And all this time-- until today and also for many further years into the future-- Rwanda's citizens will continually be faced with the challenge of delving in a detailed and public way into the terrible events of those three months of the genocide in 1994, since the community-level "gacaca [ga-cha-cha] courts" that the government has established to "try" all the less-serious crimes committed during the genocide are expected to continue their work until  2014 or so.  The government will also simultaneously be attempting to try thousands of the "bigger fish" among the genocide suspects in the regular courts (and until 2008, the UN's special court for the 60 or so very biggest fish of all will also be continuing its work.)  Thus, for all these many years following the RPF's July 1994 victory, the people of Rwanda have been forced to re-examine, argue about in detail, and very often therefore vicariously "re-live" all the minutest and most grisly details of the genocide.

In South Africa and Mozambique, meanwhile, almost none of that divisive, polarizing, and frequently re-traumatizing process is currently going on.  South Africa's TRC had a fixed term between 1995 and 1998, though a few of the amnesty hearings dragged on after that original stop-date.  And in Mozambique, given that a blanket amnesty for civil-war-era crimes was embedded integrally into the GPA, no public examination of the atrocities of those years was ever conducted. Meanwhile, throughout all the peacemaking process both before and after the conclusion of the GPA, churches, mosques, and the networks of the country's traditional healers (curandeiros/as) worked with other institutions in society to heal survivors of the many terrible atrocities that had been committed during the war, to resettle and rebuild communities uprooted and torn apart by the fighting, and to reintegrate former perpetrators into those communities.  At the governmental and non-governmental levels, a determined efort was made to draw a clear line under the horrendous violence of the past and to focus the attention of the country's war-shocked people on the tasks of social and political reconstruction.

In both South Africa and Mozambique, an essential part of the agenda for political reconstruction was the establishment of political systems that actively fostered the democratic inclusion of parties advocating a range of different views, and thus providing mechanisms other than armed violence for the resolution of those differences.  These newly democratic systems were designed to provide a new level of accountability both between the elected leaders and their  citizenries and among compatriots of the same country who espoused widely divergent political views.

At the same time, the governments in both South Africa and Mozambique also took numerous steps to start to meet the basic needs of their citizens in the fields of economic and social justice.  (I note that several well-documented surveys of the opinions of people reeling from recent armed conflict have shown that these people tend to put their extremely urgent needs for economic and social survival considerably higher on their agendas than their desire for any form of retributive justice; and often, when asked how they define the "justice" that they cry out for, they do so in terms of having these very urgent economic and social needs satisfactorily met.)  The economic justice needs of the people in both these countries-- and particularly, perhaps, in South Africa-- are still far from being satisfactorily met.  But at least the post-conflict governments in both countries have made a start on this task.  And by having a decent measure of political and social stability, and by being able to cut the budgetary and manpower burdens imposed by their previous levels of  military spending to a significant degree (especially in Mozambique), they have registered some achievements in improving the lives of their citizens.

In Rwanda, meanwhile, not only have the government and people remained mired in re-examining and reliving the traumas of the past, but in addition the post-genocide government has built up a bloated military and security apparatus that has maintained an oppressive political system at home and has been a major participant in the waging, since 1996, of a series of wars and milirary occupations in the neighboring Democratic Republic of Congo.  Between them, these wars in the DRC (in which Uganda has also participated) have left an estimated four million people dead and have ravaged areas of DRC some 16 times larger than Rwanda itself.

Now it is hard, evidently, to draw a straight line of connection between the RPF's very extensive pursuit of a prosecutorial strategy at home at home and its engagement in that series of massively lethal and damaging foreign wars.  I can note, however, that the political content of the prosecutorial strategy at home has been to maintain the country's Hutu majority population in a state of persecution, fear, and political marginalization; while the need to combat alleged concentrations of 'Hutu Power' extremists in DRC has been the main pretext under which the RPF has maintained its bloated military presence in the DRC.  So at the political-rhetorical level, and perhaps also at the level of the RPF ruling groups' own core ideology, there is a clear link between the two.  At home as abroad, instead of seeking an equitable and mutually respectful form of political accomidation with opponents, the RPF's leaders have sought to use means of forceful coercion-- including, at home, the use of its broad strategy of prosecutions.

... In light of the above, I would like to urge my friends and colleagues in the international human rights movement to be open to the idea of interrogating and reframing these key concepts of "justice" and "accountability" to which we are all so attached in a way that is considerably more forward-looking than is generally the case today.  As understood today, these terms have come to be associated almost wholly with the institution of processes and procedures that look in a specific, detailed, and often very time-consuming way at the events of the past.  But should they not also be applied to the need to build just and accountable political systems going forward?

Another related question is what should we do when a choice or a trade-off has to be made between the requirements of the task of winning some form of justice and accountability in the backward-looking sense, and the task of winning it going forward?  This choice is, it seems to me, often posed particularly starkly in countries reeling from recent widespread political conflict.  (As an important related matter, I note that the commission of atrocities in most or perhaps all cases does actually require a state of continuing, violent, inter-group conflict that  incubates,and perpetuates it.  There is, after all, a very solid reason why the field of atrocities law grew out of the jurisprudence of "war crimes"...  One important corollary of this is that truly to end the commission of atrocities, we need to succeed at  finding peaceful, rights-respecting ends to situations of armed conflict.  More on this, below.)

Anyway, if we are looking at the vast majority of countries and communities where the commission of atrocities has been widespread in recent times we can see that these are countries that (a) may be way down near the bottom of the per-capita income scale, and may have a very poor or virtually non-existent infrastructure at the basic level of a nationwide network of roads, bridges, and shool-houses, let alone in terms of court-houses and the administrative infrastructure required to support them, and (b) are reeling from widespread recent conflict that has devastated much of whatever physical and institutional infrastructure previously existed, while leaving the population further impoverished and riven by deep social/political cleavages marked by continuing fear and feelings of vulnerability and hostility.

What are the potential costs to such a society of investing huge amounts of the available aid dollars, and the attention of decision-makers at all levels, national and international, into launching some program to enact (or exact) the kind of backward-looking  "justice" and "accountability" that rights activists in secure western/northern countries seem to favor?  I would argue that, as in Rwanda-- and even more so in post-invasion Iraq!-- the costs can be enormous.  Certainly, if war-crimes courts are the chosen vehicle, then this very vulnerable population that is emerging-- as its members fervently hope-- from a period of damaging armed conflict, then the social/political cleavages that marked that conflict will almost certainly be deepened by such  proceedings.  And meanwhile, a significant proportion of the aid dollars and decisionmakers' attention that could have been invested in the tasks of socioeconomic reconstuction that any community emerging from chronic armed conflict so desperately needs, will be diverted instead into the pursuit of this divisive and backward-looking project.  (The amounts of money involved are not trivial.  By the end of 2005, each case that the UN's International Criminal Tribunal for Rwanda (ICTR) had tried had cost it $42.3 million!  Most of the immediate beneficiaries of this spending were not Rwandan nationals.  Many have been highly paid lawyers from high-income countries.)

So yes, I am all for justice and accountability!  But instead of construing these worthwhile goals in a backward-looking way, let us reframe them in a way that as places the stress instead on building political and social systems going forward that as far as possible embody and ensure these ideals within these different societies.  I would maintain, moreover, based on my own enquiries with people who have survived periods of horrendous armed violence, including violence that touched most of them very personally, that such survivors of violence -- please let's not carry on infantilizing them by calling them 'victims'-- seem overwhelmingly to prefer to focus on justice and accountability projects going forward rather than on endlessly looking back at a past that in all cases was very painful, and is often still painful to remember.

And as for those other, often barely goals of the deontologists among us-- such as "giving Pinochet what he deserves", or Joseph Kony, or whomever-- we might usefully remember some advice I heard in 2001 from Rejoice Mabudhafasi, a Black South African woman who had suffered considerable abuses from the apartheid government during her years as an anti-apartheid activist, and who later became Deputy Minister for the Environment in one of the post-democratization governments. When I asked how she felt about the fact that the apartehid-eras torturers all escaped punishment she said, "We can never do anything to them as bad as what they did to us.  It's not in our nature. God will deal with them. We leave that to Him." I heard a very similar sentiment expressed in Rwanda in 2002 by Rev. Michel Kayetaba, a genocide survivor who by then was running a very effective, church-based program that brought genocide survivors and the family members of accused genocde perpetrators together in socioeconomic rebuilding projects around the country.

Regarding the concept of accountability, there is another related question: namely whom should we seek to have the perpetraors of former violence be accountable to?  Sometimes, in the west, there is an unexamined assumption that such people should be held accountable to "the whole of humanity", or "the world community"-- or at any rate some group that definitely includes us.  But if people like Ms. Mabudhafasi or Rev. Kayetaba are prepared to forego attempts to enact earthly judgments and punishments, then who are the rest of us to insist on them?

... One final word here. On March 8th, I had the pleasure and privilege of taking part in an excellent round-table discussion, organized here in London by the Royal Africa Society and some other organizations, on the topic of "The ICC, Justice Systems, and Reconciliation."  One of the afternoon speakers was Mariana Goetz, who is an advisor to the ICC at the UK-based victims' rights organization Redress.  Previously, she has worked on the legal staffs of both the ICTR and the Special Court for Sierra Leone; and she was part of the team that, after the US-UK invasion of Iraq, trained the participants in the 'Iraqi High Court' that tried Saddam Hussein and others.  Ms. Goetz talked a little about the development of the concept of victims' rights in recent international instruments, noting that they were adressed and defined in two UN conventions in 1985 and 2005.  The second of those conventions dealt particularly with the rights of "victims" under international and international humanitarian law. (See the text of this document here.  The list that follows is in Section IX.)

As Goetz described it, this convention describes victims as having both procedural and substantive rights, with the latter including a "right to reparation."  Such reparation, she said, can have five different elements:

1. a right to restitution of expropriated properties,
2. a right to rehabiliation, whether phsyical or psychosocial, for the harms done to the person,
3. a right to compensation,
4. a right to 'satisfaction", which may include the issuing of an apoligy, the building of a memorial, or other similar acts that symbolize reparation, and
5. a guarantee of non-repetition.*

Now this whole list is very interesting.  But the last item seems extremely important to me.  For how, in practice, might the members of the international community best assure the "non-repetition" of acts of atrocity in any country or community wracked by recent atrocities?  I am strongly of the view that the best way to do this is to help the parties to the conflict that has incubated those atrocities to find a durable and rights-respecting peace.  And now, this important goal of a "a guarantee of non-repetition" has been codified as constituting one of the rights of victims/survivors of any atrocity.

Now I know I need to do a whole lot more more to lay out my whole argument about the relationship between violent conflict and the commission of atrocities; and I shall try to do that as soon as I have time.  But for now, let me just note (1) that any society, anywhere, can always contain a certain number of individual sociopaths or atrocity-committing mass murderers, though their number is usually very small; but that 2) such individuals only thrive, gain social power, and proliferate in number in circumstances in which social norms break down under the stress of violent conflict.

When sociopaths commit their atrocities in settled societies that enjoy a significant level of social peace, their activities can nearly always be brought to an end through the work of a police force and the associated criminal-justice system, which between them are capable of protecting the rest of society from any repetition of atrocious acts by these individuals.  But in societies wracked by violent conflict, or in which the rule-of-law protections for the safety of ordinary citizens are absent for other reasons, sociopathically inclined individuals can not merely continue to enact their atrocities with a high level of immunity from the law but are also, often, either shielded by some branches of the public authorities or otherwise accorded increased social power by virtue of the continuation of the state of conflict. 

What is centrally needed, therefore, is to strengthen the ability of society as a whole to protect itself against the repetition of such acts.  This can be achieved in a number of different ways.  One way, in societies that have the social and legal infrastructure needed for this, is to take away the capacity of these individuals to commit further outrages by incarcerating them after the holding of an appropriate and fairly conducted criminal proceeding.  (I note here that neither the holding of trials nor the maintaining of an incarceration system are cost-free ventures.  The burdens they impose on society are not only financial.  In particular, the incarceration any person of bread-winning age affects a wide circle of family members and dependents; and the incarceration of large numbers of people, as in the present-day US, can exact enormous social costs.  However, there probably are some circumstances in which incarceration is, on balance, a helpful response.)

Another way in which a society can protect its members against the repetition of past acts of atrocity is to remove both the motivation of those past offenders to re-offend and, crucially, the social/political context within which they committed their earlier offenses, and to do this through the institution of a new, more just and acountable social order while ensuring the integration into this new order of as many as possible of those past offenders.

That was the path that was followed in Mozambique after the peace agreement of 1992.  Under the terms of the GPA some 93,000 former combatants-- from both sides of the line-- were given DDR packages that gave each of them some basic living necessities, transportation to their home communities, and a demobilization stipend that assured them a small cash income for the next 24 months.  During that whole process, no attempt was made to sort out former combatants who had committed the many atrocitirs that had marked the civil war from those who had not.  A small number of combatants from both sides were not demobilized but were formed into a new national army that integrated fighters from both the previous fighting forces.

In 2003, I was able to interview two men who, between them, had presided over the military system that was responsible for the commission ofa huge proportion of the war-time atrocities: that of the Renamo insurgent force.  These men were Raúl Domingos, who had been head of the Renamo military, and Hermínio Morais, head of the Renamo Special Forces.  After the conclusion of the GPA (which he helped negotiate), Mr. Domingos was elected to parliament on behalf of the political party that Renamo formed after 1992.  Mr. Morais also helped to negotiate the GPA.  After it went into effect he stayed in the new, united armed forces as the head of its training unit; after some years he left the military and entered law school, and when I interviewed him he was about to qualify as a lawyer.

How do Mozambicans feel about outcomes such as these?  Nearly all of them feel very satisfied.  They feel, moreover, that the social order put in place after the conclusion of the GPA gives them fairly strong protections against the repetition of the acts of barbarism committed during the war, and they have a strong reluctance to doing anything that might damage that social order or revive even any general "aura" of the violence of the war years.  (Hence, they have a generally strong reluctance to even talk about that violence, but that is another story.)

Based on my study of the developments of the post-conflict, post-atrocity years in these countries and elsewhere, I would say that all the rest of us in the human rights movement need to do some drastic rethinking of the way we look at issues of justice and accountability.

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*  Subsequent to writing the above, I was able to access the text of the U.N. General Assembly Third Committee's document Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN doc. # A/C.3/60/L.24 of 24 October 2005.  Article 23 states the following:


It seems evident to me that none of these tasks can be accomplished in a situation of ongoing violent conflict.