On April 10, Amnesty International (AI) launched an appeal and a short video calling upon the Nepalese government to protect women human rights activists. A year after a new Constituent Assembly in Nepal was elected, women human rights activists continue to be at high risk of attack and progress in establishing transitional justice mechanisms has been slow despite the Maoists’ campaign promises to end impunity and improve the human rights situation. "When the Maoist Government came to power, it made commitments to protect women's rights but these now seem like false promises," said Madhu Malhotra, Amnesty International's Asia-Pacific Deputy Director. "Now that they are in government, all the revolutionary rhetoric has not resulted in real improvements in women's lives.”

Greater Attention to Women in Transitional Justice: An ICTJ Report on Afghanistan

In Nepal and elsewhere, civil society groups have called for greater attention to women in transitional justice processes. In February 2009, the International Center for Transitional Justice (ICTJ) published a report on gender-specific violations in Afghanistan. The three authors – Fatima Ayub, Sari Kouvo and Yasmin Sooka – argue that the deprivations and violations suffered by women are rarely specific to outbreaks of war. Rather, the authors conclude that the conflict merely accentuates discrimination and violations that women suffered during peace.

Women’s suffering = Direct Sexual Violence? It is more complicated

In a previous post in this Forum, I have criticized that the Liberian Truth and Reconciliation Commission (TRC) has narrowly conceived women’s suffering. By concentrating exclusively on direct sexual violence (gang rape, sexual slavery, etc.), the Liberian TRC has missed an opportunity to analyze the complexity of the gendered dimensions of the conflict as well as of discriminations and biases already existing prior to the outbreak of the civil war. It simply seems wrong to assume that if women’s human rights are violated, it must necessarily always be related to direct sexual violence. Moreover, it would also be wrong to assume that sexual violence only affects women.

Similar points are made by the three authors of the ICTJ. They write that “the reduction of gender to simply sexual violence against women is to ignore the gendered dimensions of conflict.” As a positive example, they mention the truth commission of Sierra Leone. Part of the mandate of Sierra Leone’s truth commission was to focus on the experiences of women and in particular, the sexual violence that occurred in the conflict period. However the commission went further and highlighted in its report the structural injustices that women had experienced as a result of gender inequalities in Sierra Leone in the period before, during and after the conflict. Ayub, Kouvo and Sooka point out that the extensive findings of the Sierra Leonean commission provided an account of how social, legal, political and cultural forces conspired to render women more vulnerable during the conflict.

Specific Incidences and Structural Problems

How can transitional justice processes be equipped to empower women and to reverse a discriminatory environment? How can transitional justice grapple with systemic and structural problems which go beyond the focus on specific moments in time? Transitional justice has traditionally focused on specific incidences of human rights violations. Especially in criminal prosecutions, the legal vocabulary which can be used to build a case against a perpetrator must necessarily concentrate on specific events. While it is a challenge to distinguish between those gender-based violations that stem directly from conflict and violations that occur during peacetime or as indirect products of conflict, this distinction may not matter so much for those women (and men) concerned. Even if the vocabulary of transitional justice mechanisms is limited by their respective mandates and powers (or the way these have been interpreted), the human rights law framework in general does not preclude the analysis of continuous, systemic or structural violations. For instance, the UN Committee on Economic, Social and Cultural Rights – the organ of the UN supervising the implementation of the Covenant on Economic, Social and Cultural Rights in 2005 issued a General Comment on how to interpret the “equal right of men and women to the enjoyment of all economic, social and cultural rights (art. 3 of the International Covenant on Economic, Social and Cultural Rights)”. The Committee clearly explains that “substantive equality for men and women will not be achieved simply through the enactment of laws or the adoption of policies that are, prima facie, gender-neutral. In implementing article 3, States parties should take into account that such laws, policies and practice can fail to address or even perpetuate inequality between men and women because they do not take account of existing economic, social and cultural inequalities, particularly those experienced by women.”

While not expecting any transitional justice mechanism to solve problems of inequality, income gaps and the distrust of state institutions at once, the Sierra Leonean example shows that it is possible that transitional justice strategies can be designed to at least create the opportunity to tackle these fundamental weaknesses. At the same time, if we agree that discriminations faced by women (or others) are deeply rooted and pre-existing to the outbreak of conflict, the “social engineering dimension” of transitional justice becomes all the more apparent and it seems all the more imperative that those concerned are given a voice in the decision-making at all stages. As far as Nepal is concerned, the government should be encouraged to take immediate steps to ensure that its promises can be realized.

Nepal: Extend the mandate of the OHCHR Field Mission and protect all human rights defenders

While Nepal has some plans for a truth commission and other transitional justice mechanisms, it is not clear whether they will take off anytime soon. In addition, the UN Office of the High Commissioner for Human Rights (OHCHR) has a field mission in Nepal, and its mandate expires in June 2009. The High Commissioner personally visited Katmandu to request a three-year extension to continue the work of capacity-building of national human rights institutions and individuals; promoting a culture of accountability and respect for rule of law; and promoting enjoyment of economic, social and cultural rights. So far, she is still waiting for an answer.

As Amnesty International writes on its website, the Nepalese state has a duty not only to ensure that its agents and officials do not commit violence against women, but also to protect women from violence committed by private individuals and bodies including members of their own families and communities.

The UN Security Council decided unanimously on February 26 to keep its peacekeeping mission in East Timor (UNMIT) for another 12 months, noting that the political and security situation there remains fragile and many cases of serious human rights violations remain unaddressed. The 1,500-strong international police force was given authority over East Timor's internal security force in 2006, after tensions between the police and military led to deadly violence. One of the main tasks of UNMIT is the restoration and maintenance of public security through the provision of support to the Polícia Nacional Timor-Leste (PNTL, the Timorese national police). Two and a half years later however, the Timorese police force is still a weak, factionalized and unaccountable force and some of its most senior members have been accused of human rights abuses.

East Timor’s president Ramos Horta last week went to New York to lobby UN members not to abandon his country prematurely. While security in Timor has improved since the unraveling of law in 2006, UN Security Council members agreed on the necessity to renew UNMIT’s mandate for another year.

Although not widely reported, a recent decision of East Timor’s highest court casts doubts on the sustainability of international efforts to enhance accountability for human rights abuses. The court’s judgment in the case of a “fake policeman” may only add to the already daunting challenges to build a sustainable, human rights abiding and democratic police force. Online reports explained that East Timor’s highest court has found the agreement between the East Timorese government and the United Nations Police mission non-binding and unconstitutional.

The December 2008 court decision demonstrates that to prevent future abuses, many challenges remain. Moreover, the court case shows that the there is a long way to go to address the culture of impunity within the police force and potentially across institutions.

Radio Australia reported the decision of East Timor’s highest court of appeal concerning the "fake policeman". An audio is available here . One of the most senior East Timorese police officers lost his job after a disciplinary procedure found practices carried out by him in violation of human rights. The interim PNTL commander of Baucau, the second largest city after Dili, was sent home by the UN Police Commissioner . The fallible Timorese officer apparently twice handed over his weapon, but repeatedly went back to work until he was arrested by the UN police, charged and convicted of a false identity crime by a local court. Some of the allegations against the police commander and some of his colleagues are described in the UN Secretary-General’s report on East Timor .

The Baucau police officer appealed the decision. East Timor's court of appeal, in December 2008, overturned his earlier conviction on grounds that the UN police commander was not in a position to suspend the officer. According to Radio Australia , East Timor’s highest court found the agreement between the Timorese government and the UN was not constitutional. As Stephanie March from Radio Australia puts it, this decision casts doubt “over exactly who is the fake policeman.”

As Bu Wilson from the Australian National University writes in the East Timor Law Journal , UNPOL’s executive policing authority is derived from the Supplementary Policing Agreement between the Government of Timor-Leste and the United Nations signed on 1 December 2006. The Court of Appeal Decision found that as the Supplementary Agreement was not ratified by Parliament and promulgated as required by the Constitution of Timor-Leste, it had no legal force.

What could the decision mean for transitional justice and the rule of law in East Timor?

If other challenges to the action of the UN police over the last two years follow, the case of the “fake policeman” could mean that other executive policing decisions that have been made by the United Nations Police (arrest, institutional decisions, etc.) are potentially not legally valid. The court’s decision also implies that currently, the Timorese police officers are under no one’s authority. This is probably not exactly what rule of law practitioners wanted to achieve.

Wilson mentioned in the radio report that prior to the court case of the “fake policeman” the relations between the UN police and the PNTL have been deteriorating. According to her, tensions arise because UNPOL had been placed under considerable pressure to have PNTL certified and operational before there is any evidence of PNTL being ready.

Let’s consider the possible consequences of the court decision in relation to post-conflict justice in Timor Leste. The ingredients are a police who seems to escape accountability to anyone, a weak government and a UN mission under pressure to close down. At the same time, most UN pledges concerning human rights and accountability for human rights abuses committed in Timor-Leste between 1975 and 1999 remain unfulfilled. Human rights groups complain that the “international community” failed to seriously examine the recommendations contained in the report of the Timorese Reception, Truth and Reconciliation Commission (CAVR). In my view, the initial plan on how to tackle transitional justice issues in Timor Leste was highly innovative and promising: a truth commission well adapted to the local legal and cultural traditions would aim at inquiring the big picture of the past violations and would support the reintegration of individuals who had caused harm to their communities through minor offenses. At the same time, a UN led serious crimes unit would try serious violations of human rights. The idea was that both mechanisms would be institutionally linked to ensure that perpetrators are dealt with at the appropriate level.

The trouble was that the plan relied on the assumption that both counterparts would complement each other . However, the serious crimes process proved unable to reach accused (and sometimes already indicted) individuals outside Timor-Leste. In addition, the serious crimes process was not able to investigate or prosecute the vast majority of perpetrators, even those who had participated in the 1999 violence (rather than the entire period of Indoensia's occupation and internal factional conflict; 1975-1999). As a result, some who participated in the community reconciliation process of the truth commission felt resentful because perpetrators of more serious crimes remained outside the scope of either process. After the violence in 2006, the Security Council decided in August 2006 to reopen the serious crimes process to investigate crimes committed in 1999 and a UN investigation team went back to work in February 2008. Little is reported on its activities and if some of the readers are familiar with the investigations during the last year, your comments would be highly appreciated.

To conclude, ten years after Indonesia’s violent exit from Timor-Leste, many still await justice. The governments of East Timor and Indonesia are unlikely on their own to take concrete steps to ensure accountability, to end impunity and to provide reparations to victims. The UN mission’s mandate falls short of the demands of the CAVR to fully reconstitute the serious crimes processes . One may hope that UN members agree to support the mission until it achieves to improve the human rights situation and the administration of justice, including by the police force.

It remains to be seen if the 2008 decision of the Appeals Court will be followed by similar legal challenges. I am wondering if underlying the court decision there is not somehow a dilemma for outside actors engaged in post-conflict rule of law and in building accountability for past abuses. On the one hand, rule of law practitioners seek to enhance domestic courts so that they are enabled to apply the constitutional provisions of the “reformed” country. The East Timorese appeals court may have evaded the question of what international agreements precisely require parliamentary ratification and the court’s invocation of the provision may be farfetched. But what should the UN do about an unpleasant decision of the judiciary? The UN is probably well advised not to discredit the court’s interpretation of the constitutional provision. Maybe this explains why Williams has observed an almost total lack of UN reporting on the court case with potentially wide ranging consequences?

Northern Ireland’s Consultative Group on the Past has released its report on how post-conflict Northern Ireland should best deal with the legacy of its three decades of the Troubles.

For more than three decades, the six counties that comprise Northern Ireland have experienced violent conflict over the country's political status. Between 1966 and 1999, more than 3500 people were killed. A fragile political process started in 1997, followed by the Good Friday Agreement of April 1998. The Provisional Irish Republican Association (IRA) ended its armed campaign in July 2005. The independent Consultative Group on the Past was established in June 2007. Its mandate was to consult across the community on how Northern Ireland society can best approach the legacy of the events of the past 40 years; and to make recommendations, as appropriate, on any steps that might be taken to support Northern Ireland society in building a shared future.

On Wednesday January 28, the independent consultative group launched its 190-page report and recommended the creation of an independent Legacy Commission “to deal with the legacy of the past by combining processes of reconciliation, justice and information recovery. It would have the overarching objective of promoting peace and stability in Northern Ireland.” The consultative group seems to favor a dialogue which would help to reduce sectarianism. The proposed Legacy Commission would play the role of a truth commission and its mandate would be limited to five years. The group also recommends that the Legacy Commission includes separate Investigation and Information Recovery Units and an international commissioner as its chair.

The disputed £12,000

It was not the proposals on the Legacy Commission which filled the commentaries and news reports of the next days. What provoked amid controversy, vivid demonstrations and outraged statements was the fact that the consultative group implicitly treats as equals perpetrators and victims. The controversial suggestion of the consultative group was the following: The nearest relative of someone who died as a result of the conflict in and about Northern Ireland, from January 1966, should receive a one-off payment of £12,000 (approx. U$17,000).

Many victims however expressed that they wanted justice for what happened, and not to be bought off. Others felt it was an important recognition that all families have suffered from the conflict. It is understood that the goal of the consultative group’s proposal is to end the “hierarchy of victims” on the understanding that the pain to those bereaved is equal. Yet, the plan to treat relatives equally, regardless of their role in the Troubles, is problematic for two reasons:

First, victims of human rights violations do not only have a right to reparations under international law, but also a right to know the truth about the fate of their loved ones and a right to a remedy for the individual violation that they have suffered. Determining a sum of money even before a truth-seeking process has started may well divert attention away from dealing with the past. Once the money is paid, will the factions accept responsibility for abuses? Will leaders come forward to testify on their own deeds? Experiences from other countries show that victims feel bribed if monetary compensation is paid before the truth is revealed.

Second, States’ obligations under international law to provide reparations for harm suffered are not fulfilled by paying a lump sum to all relatives of those who died in relation to the conflict. It seems doubtful to speak of reparations in the first place. The consultative group calls the £12,000 “ex-gratia recognition payments” while international law speaks of legal obligations to provide reparations to victims. Moreover, short of death, there are many ways of having suffered human rights violations which give rise to a right to a remedy. The proposal of the consultative group does not seem to suggest reparations for other victims.

The independent Consultative Group on the Past should be supported in its strike for an acknowledgement of victims’ suffering and a shared understanding of the past. Its recommendation to establish a Legacy Commission should be welcomed. One may ask if the sequencing to first determine an amount of money and then establish a truth commission was well-chosen. However, whatever the fate of the controversial proposal on the “recognition payments”, this controversy should not divert attention away from the manifold other suggestions made by the consultative group. Importantly, the establishment of the Legacy Commission should not be delayed.

The Truth and Reconciliation Commission of Liberia (TRC) uploaded the first volume of its final report to its website on January 24. Two other volumes are due to be released prior to the end of the commission’s mandate on June 22, 2009.

Volume I is 107 pages long and contains an analysis of the legal nature of the conflicts in Liberia, as well as a list of findings and recommendations. The commission has reserved the right to make additional determinations and recommendations in the final consolidated report. The TRC keeps Liberians in suspense and many thorny questions are left for the final two volumes of the report.

The TRC recommends “prosecutions in a court of competent jurisdiction and other forms of public sanctions”. It has promised to issue a list of names of individuals not recommended for prosecution as well as more detailed recommendations on the establishment and nature of such a criminal court. Not surprisingly, the recommendation of prosecutions has attracted a lot of attention and controversy. Ex-rebel leader Prince Johnson, who is now a senator, already warned that there would be trouble if anyone tried to arrest him.

The commission also called for the establishment of a National Palava Hut Forum as a complementary tool for justice and national reconciliation. The Palava Hut process is a dispute resolution mechanism that has traditionally been used in Liberia in the case of conflict between two groups. The TRC suggested that reparations shall apply to communities and individuals and that general amnesty should be granted for children. Others may be recommended not to be prosecuted if they admit their wrongs and express remorse. Further recommendations concern institutional reform which the TRC thinks must be implemented to promote “good governance” and human rights.

Liberian President Johnson Sirleaf testified before the commission on February 12

Commission takes into account antecedents back until 1822

There are some very positive features about the first volume of the TRC’s report: The report clearly explains the methodology of the commission, its structure, who has been involved in its work and how the commission interpreted its own mandate. It provides an honest outline of some of the challenges the TRC has faced. Importantly, the commission took the liberty not to narrow its analysis to the period of January 1979 to October 2003. The Truth and Reconciliation Act of May 2005 allowed the commission to also take into account “any other period preceding 1979” and the TRC has taken full advantage of this clause. The chapter on the root causes of Liberia’s conflicts begins its analysis in 1822; the year in which Americo-Liberians began settling in. The commission points out that the historical antecedents of tensions are “far more complicated than Black Colonial paradigm machinations” and that both settler and natives generated misconceptions, fear and conflict with one another.

Some Skeptical Thoughts on Volume I and Suggestions for the Final Consolidated Report

The commission could still make changes or elaborate on its views in the consolidated version of the report. Here are thus a few thoughts and suggestions:

• To a large extent, the TRC takes a very legalistic approach, even if the commission states that it is “not a court or tribunal”. Long sections are dedicated to an analysis of which parts of international and domestic law applied at what point. While the main legal conclusions are convincing, the analysis is not always waterproof (e.g. including “imprisonment” among violations of preemptory norms of international law or stating that there was no definition of economic crime and that the TRC would therefore “adopt” one to hold perpetrators accountable). Why does the TRC spend a section on the appropriate “standard of proof” if it is not a judicial organ? Obviously, the TRC must be applauded for avoiding to make statements without considerations of evidence, but I wonder how much of the report will resonate with ordinary Liberians. The conflict is presented almost “faceless”. Compared to reports of other truth commissions, little is said about the concrete experiences and the daily life of the population during the 14 years of violent conflict. Let’s hope the consolidated version gives those Liberians who testified before the commission a voice in the final report. The TRC must have collected a rich amount of statements, videos, photographs and drawings. Including some of this material (by respecting the consent of those concerned) might help to make the report more accessible and relevant to ordinary citizens. Another idea would be to follow the example of the Sierra Leone TRC which has produced illustrated versions of its report for young children and for students at senior schools. WITNESS, an international NGO, was invited by the Sierra Leonean Truth and Reconciliation Commission to produce a video accompaniment to the official TRC report.
  
  
• Another critical issue of the Liberian TRC’s Volume I concerns reparations. While the commission suggests that “reparation is a desirable and appropriate mechanism to redress the violations of human rights”, it fails to acknowledge that reparations are not only a desirable element of transitional justice, but that the State of Liberia has legal obligations to provide them. It is important that the TRC corrects this mistake in the consolidated report and clearly states that reparations are due as a matter of law.
  
  
• Last but not least, there seems to be an yawning gap between the TRC’s finding that “the major root causes of the conflict are attributable to poverty, greed, corruption, limited access to education, inequalities; identity conflict, land tenure and distribution” and the way the commission conceives the abuses of the past. An example: Violence against women is a central part of the commission’s mandate and the first volume of its report. However, the underlying assumption seems to be that women primarily suffer from direct sexual violence (gang rape, sexual slavery, torture, etc.). Indeed, this was and unfortunately continues to be one of the worst aspects of Liberia’s human rights situation. At the same time, the more subtle gender dimensions of the conflict are glossed over. The narrow way the TRC seems to have conceptualized the harm suffered by victims – women in particular – almost exclusively deals with the civil and political dimensions of the violations of their rights. If the TRC diagnoses issues such as the limited access to education or land tenure as the major root causes of the conflict, Volume I of its report does not really discuss the economic, social and cultural dimensions of human rights violations. The TRC’s mandate refers to all gross human rights violations and is not limited to civil and political rights. Moreover, the Truth and Reconciliation Commission of Liberia is among the first ones to explicitly include economic crimes such the exploitation of natural or public resources to perpetuate armed conflicts in its mandate. It remains to be seen if this promising feature can be fully explored in Volume II and III of the final report. The Liberian TRC should grasp the opportunity to detail its views in the upcoming consolidated report. For instance, a more detailed analysis of the conflict’s impact on the victims suffering from limited access to education or land tenure might reveal a further gender dimension, etc. The Commission should make sure its recommendations, including those on reparations, are in line with its diagnosis that the major root causes of the conflict are linked to violations of economic, social and cultural rights.

A number of excellent articles in the latest issue (December 2008) of the Oxford International Journal of Transitional Justice deal with precisely this question: “Can transitional justice today afford not to concern itself directly with social injustice and patterns of inequality, discrimination and marginalization that were underlying causes of a conflict and that inflicted major suffering and victimization on vast swathes of a population?” The issue is worth reading.

He said this (please note that the italics and bolding in what follows are in the RLP version of the text, while the underlines are mine):

Over the last twenty years a deadly trail of heinous human rights violations has been committed by both the Government of Uganda and the rebels of the Lords Resistance Army. Uncountable numbers of people have lost their lives or been maimed, and almost the entire population has been uprooted and displaced at one point or another.

At times it seems as though no amount of stocktaking could ever come to terms with the magnitude of what has happened – but should that stop us from trying?

We at the Refugee Law Project think not. Yet, ever since the International Criminal Court seized itself of the situation in northern Uganda, many within the international and local communities have been complicit in shifting attention away from the true scale of what has been done to people and the range of actors involved, focusing instead on the infinitely more manageable task of prosecuting a handful of individuals from only one of the many parties to the conflict – and in the process ensuring the institutional interests of a fledgling global governance mechanism, the ICC.

Sadly, the proponents of the ICC have made their case in a way which has resulted in the creation of a false opposition between peace and justice.

They have pitted those of us who, on the basis of many years of on-going interaction with the many stakeholders in the conflict, argue that peace should always come first, and justice later, against a largely external set of actors who claim in a somewhat selfrighteous manner that peace will be the eventual outcome of justice.

We in the former category have been accused of condoning impunity - yet we could equally argue that justice along the lines pursued by the ICC also condones impunity, not least that of the government actors.

In ordinary circumstances, it would appear quite natural that peace and justice go hand-in-hand, following the argument that peace and justice are inseparable and one is a subcomponent of the other.

But this argument does not hold in a situation such as northern Uganda, where conflict is on-going and where the simultaneous pursuit of peace and justice only delays a peaceful resolution of the conflict (as we see in the current Juba peace talks) and contributes, in a very real and visible sense, to the continued internment of people in squalid camps for the internally displaced.

In the case of Uganda, the ICC indictments issued against the five top commanders of the Lords Resistance Army are always cited as evidence that the "peace with justice" position is tenable, based upon the claim that the threat of these indictments brought the LRA to the negotiating table.

While it may be the case that the carrot-and-stick threat of the indictments led the LRA to the negotiating table, this is merely speculation informed by opportunism. This is, after all, not the first time in the history of the conflict that the LRA and the government have attempted to talk peace. There were peace talks in 1994 and again in 2004. These talks were frustrated by the same government which referred the situation in northern Uganda to the ICC.

On the other hand, the rationale for a "peace first, justice later" position is quite simple: It is a matter of sequencing. And, sequencing should be distinguished from prioritization. If the preferred sequencing is peace followed by justice, this in no way signals that justice is a lower priority than peace – quite the opposite, in fact.

Whichever way you look at it, trying to ensure that the environment is conducive for a comprehensive pursuit of justice (i.e., that a peace deal has been struck, civilian authorities are back in place, clan structures responsible for traditional justice have re-grouped after decades of forcible dispersal, people are no longer living hand to mouth and are therefore better able to pursue justice for themselves) is definitive proof that you want real justice to be done. Rushing in a fashion which jeopardises the whole enterprise, on the other hand, must raise serious questions about the underlying objectives of those who claim to be pursuing justice and peace simultaneously.

...Many human rights activists seem unable to approach grave human rights violations without yielding to a retributive impulse; what else would justify developing sophisticated international tribunals, with their sometimes perplexing rules for the administration of justice, and attempting to apply these rules to all situations regardless of contextual specificities?

Rarely – if ever – have we invested in developing restorative mechanisms for addressing grave human rights violations, ostensibly because they are "incapable" of meeting the due process standards retributivists have invested so much in entrenching.

But what does this bode for the meaning of justice, which is central to the dilemma confronting Ugandans today?

In a 2004 report on "The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies,” the Secretary General of the United Nations referred to justice as "an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs.

Justice implies regard for the rights of the accused, for the interests of victims and for the well-being of society at large. It is a concept rooted in all national cultures and traditions and, while its administration usually implies formal judicial mechanisms, traditional dispute resolution mechanisms are equally relevant [emphasis added]."

...It is ... intriguing that in the pursuit of both peace and justice, we consciously adopt retributivists' conceptions of justice, as embodied in the mandate of institutions such as the ICC.

Not that the latter is per se problematic. What is discouraging, however, is the failure to think outside such institutional frameworks. I wonder whether you have ever considered the injustice created by institutions such as the ICTY, the ICTR, and now the ICC?

Have we ever considered the impunity created by such actors and the role of others (such as donors) in supporting impunity?

Have we considered that retributivist conceptualisations of justice, with their focus on the visible leaders who ordered gross abuses to be committed, in fact enable international actors to conceal their role in fuelling conflict? What impunity!

Could it be the case that George Bush and Tony Blair - who both supported the Ugandan military while the latter decimated people - are as culpable for crimes committed in northern Uganda as Joseph Kony?

Lastly, while we could debate this forever (and, in particular, the irony that some of the most ardent supporters of retributive justice and the ICC preach their secular gospel from a country which sees itself as somehow exempted from international justice mechanisms), I think the greatest justice one can deliver to a people living in conflict is to enable them to enjoy some sort of peace, and then to enable them to have a say in how they think justice should be done – AND TO WHOM!

Thank you very much.

By the way, last Thursday (July 5) Uganda's Internal Affairs Minister Ruhakana Rugunda told reporters on 4 July that the Ugandan penal code would have to be changed to include in it a provision to use Mato Oput, a system of "traditional" justice practised by the Acholi community of northern Uganda, whose incorporation into the national legal system should help Ugandans of all political stripes convince the ICC that their justice system indeed can hold the LRA in a nationally acceptable way (and therefore, the IUCC can drop its cases.)

Rugunda said,

"The parties committed themselves to ensuring accountability and reconciliation... This will require all those who committed crimes to admit the crimes they committed. They will be taken through a transparent justice mechanism to be agreed upon."

Those who confess to war crimes under the Mato Oput mechanism will be required to ask for forgiveness and pay reparations.

And here we have the response from some of those western-based rights activists whom Okello was writing about... Today, Human Rights Watch issued a statement saying,

Provisions for trials in the June 29 agreement between Uganda and the Lord’s Resistance Army (LRA) are welcome, but any national trials for the most serious crimes should include penalties in the event of convictions that reflect the gravity of the crimes, Human Rights Watch said today. Punishments that are fair and fit the crime are critical for ensuring justice and peace in northern Uganda.

And honestly, can anyone envision any kind of a workable peace process between Israel and Palestine or Israel and Lebanon if every perpetrator of a grave human-rights or IHL violation in those theaters would have to face trials and punishments as part of that process?

So why should matters be so different in Uganda? Is there just a teeny-weeny bit of colonialist thinking seeping in here?

(Before I proceed to give you more details of this latest Concordis paper, I'd like to quickly note this excellent publication titled Peace by Piece: Addressing Sudan's conflicts, that was co-produced last year by Concordis and the London-based organization Conciliation Resources. Its 23 different articles constitute is a true treasure-trove of information and analysis for anyone interested in war and peace issues in Sudan.)

Participants in the consultation whose contributions are summarized in the most recent Concordis paper include Andrew Rigby of Coventry University, Phil Clark of the University of Ulster, Micah Laila (the Assistant Bishop of Juba-- denomination unstated, but in the context probably Anglican?), Adam Azzain of the University of Khartoum, and a few others.

Here are the Executive Summary, and later the Recommendations, of their consultation. Please note I have added numbers to the 'bulleted point' in both texts, to facilitate discussion):

Executive Summary

This Concordis Paper is based on the content of a consultation held in the UK in March 2007, the goal of which was to consider Sudanese approaches to peace-building through post-conflict justice and reconciliation. In other states in Africa - South Africa and Rwanda among others - transitional justice mechanisms have played a central role in post-conflict reconstruction. Participants considered the examples of numerous ‘experiments’ of this nature to inform their discussion about the Sudanese context. In turn, the lessons learnt from African and international experiences fed into their reflections and conclusions about the most appropriate approaches to the pursuit of justice and reconciliation in Sudan.

Some of the consultation’s central conclusions are outlined below:

1. Though not all of Sudan is yet ‘post-conflict’, it is timely to consider ways of dealing with the past in order to respond to the present and prepare for the future.

2. Ultimately, national reconciliation can only be achieved when the root causes of Sudan’s conflicts are addressed in an holistic and just manner, particularly in terms of addressing inequalities in the distribution of wealth and power.

3. Given the complexity of Sudan’s conflicts, a package of complementary and co-ordinated transitional justice measures at different levels of society is needed.

4. At a national level, processes of justice and reconciliation should be developed through an inclusive national consensus, so that they enjoy ownership and trust across the diverse groups making up Sudanese society.

5. Sudan’s religious and cultural traditions emphasise forgiveness. Community conflict resolution practices administered by traditional authorities and religious leaders have many strengths and should be encouraged by the government.

6. Truth-telling about the past and creating a national record are important to reduce temptations for revenge and promote the rule of law.

7. Unconditional amnesty could encourage a culture of impunity and is unlikely to be acceptable under current international human rights conventions.

8. Accountability - meaning both retributive, restorative and redistributive justice - is fundamental to the achievement of broad-based reconciliation and peace.

9. Transitional justice processes should recognise the disproportionate burden of suffering borne by women in past and current conflicts.

In general, the authors of this summary seem to want to "have it all"-- in terms of sustainable peace and retributive justice and full truth-telling , and give little recognition of the fact that in every single real-life situation of "transitional" justice, trade-offs need to be made among these goals... And they therefore give little indication of the criteria according to which such tough choices should be made.

My own views on these matters have been articulated in my recent book on the topic-- and also in these two earlier posts on TJ Forum: on 'justice and accountability', and on the value of truth-telling.

So here are the Recommendations voiced in this Concordis paper:

1. An inclusive institutional mechanism be established to agree an historical record of all acts of political violence since 1 January 1956. This ‘national framework for truth, justice and reconciliation’ would give Sudan’s many different communities the opportunity to air and manage their grievances, agree a shared history and pave the way for a full process of justice and reconciliation.

2. Ongoing rule of law reform (including for example greater emphasis on training and community policing) be part of an inclusive and effective process of transitional justice.

3. There should be a mechanism for amnesty for all individuals who have committed crimes in the context of war or with political objectives with the exception of those directly responsible for gross violations of human rights. Amnesty should only be considered once information relating to the crime in question has been fully disclosed.

4. The importance of individual compensation and collective reparation be recognised, and reparation be linked to a deliberate attempt on the part of the Sudanese government to address socio-economic exclusion through a fair and equitable distribution of resources and rapid development of neglected areas of the country.

5. Reconciliation processes take into account the disproportionate suffering of women and children.

6. At local levels, traditional community healing and dispute resolution systems should be recognised and empowered by government to deal effectively and impartially with current inter and intra-group conflicts and disputes across the country.

7. The role of women and of religious and traditional leaders in local-level peace-building should also be proactively supported by local, regional and national governments.

8. The provisions of Sudan’s peace agreements for regional and national processes of reconciliation be honoured, fully supported, and, within regional constraints, implemented as a matter of urgency.
Regarding these recommendations, I have my doubts about the value of the first one-- and in particular, the temporal priority they seem to assign to it... What they seem to be saying is that this "National Framework for T, J, and R" should be constituted and do its "truth-establishing" work before there is "a fill process of justice and reconciliation." It is my general observation of truth-seeking exercises, however, that they very frequently run the risk of becoming extremely tendentious and polarizing. And therefore, if they are undertaken at all, it would be very unwise to undertake them before at least the broad underpinnings of a sustainable peace have been put firmly in place.

Similarly, the very tight restrictions that Rec. 3 places on the providing of amnesty seems fairly misplaced to me. The way I read Rec. 3 is that "those directly responsible for gross violations of human rights" (they do not say in whose estimation this is the case, note) should not have any eligibility for amnesties. And those who committed lesser crimes "in the context of war" would win the amnesties only after "full disclosure" (again, they do not say in whose estimation this has happened) of the crime in question.

The temporal priority this plan gives to the proposed TJ&R process, and its specific exclusion of perpetrators of "grave" HR violations from any consideration for amnesty, make it very different from-- and in my view, far less workable or constructive than-- the South African TRC process.

The rest of the Recommendations here seem generally helpful.

In the piece I write the following text... Be aware, though, that I's inserted he mark-ups, formating, and hyperlinks in what follows into the version of this post that I earlier puiblished on my home blog, Just World News:

In 2002, when the UN was figuring out how to deal with the aftermath of the many atrocities committed during Sierra Leone's civil war, they tried to correct flaws that had become evident during the work of Africa's oldest war-crimes court, the International Criminal Tribunal for Rwanda (ICTR). Serious criticisms of the ICTR have been expressed – by myself and others – on five main grounds. Despite the excellent motives of ICTR's founders and officials, it has been:

1. selective in its choice of cases...
2. disconnected, both geographically and conceptually, from the primary stakeholders whom it seeks to serve, inside Rwanda...
3. very expensive, gobbling up international aid dollars...
4. largely unaccountable, either to the survivors of the Rwandan genocide or to anyone else,
5. [a]nd it has strongly polarized Rwandan politics.

So in Sierra Leone, the UN located its new war-crimes court inside the country, and, by making it a "joint" court with the national justice system, they tried to maximize the good effects it would have on that system. Also, alongside the court, the UN established a Truth and Reconciliation Commission, that could – like its earlier model in South Africa – help build national reconciliation while getting the truth out about earlier atrocities. (The Sierra Leonean TRC finished its work in 2004, leaving a mixed record of achievement.)

As it is, though, don't all these courts-- and especially the ICC-- look worryingly like European-dominated institutions that seek to haul over the coals some naughty Africans while completely ignoring the role that people of European heritage have played for centuries, and all too often continue to play, in fomenting, enabling, and conniving in the commission of atrocious violence in Africa?

Then, regarding the expense of the SCSL, I did try to do find out the size of its global budget. The best estimate I could come up with, from combining the figures in various annual reports and doing one needed act of interpolation (for FY2003-04), was that for its whole duration, 2002-2009, SCSL will have budgets totaling about $200 million... and that, to try a total of 11 indictees. Which would be a per-case processing cost of around $18 million. This would be a considerable improvement over the ICTR, whose per-case costs were at one point running at about $43 million... But the figure still looks outrageous and excessive.

(Per-case processing costs for the many, often very complex amnesty applications processed by South Africa's TRC came to just under $4,300-- see my Amnesty After Atrocity book, p.193.)

You might also want to take into consideration that in 2004 the GDP per capita in PPP$ for Sierra Leone's 5.3 million war-battered people was $561, while for Liberians it was literally unmeasurable because of the lengthy perpetuation of post-civil war impoverishment and social breakdown in the country. (In the Netherlands, meanwhile, it was a very comfortable $31,789.) In 2004, Sierra Leone received a total of $359.7 million of overseas aid.

In another note on the expenses of the Charles Taylor trial as such, AP reported on Friday that SCSL acting registrar Herman von Hebel had told reporters that the court had decided to allot Taylor a budget of some $100,000 per month to conduct his defense.

Tha report added:

"It is almost three times as high as the other cases at the special court and (up to) two times higher than at the Yugoslavia tribunal," Von Hebel told reporters in The Hague.

... Taylor is entitled to receive the money because the court has ruled he is indigent, meaning he cannot pay for his own defense, despite prosecutors and U.N. experts suggesting he has millions of dollars stashed in bank accounts around the world.

"We believe there are tens of millions," said prosecutor Stephen Rapp.

... Investigators are working to track down Taylor's alleged loot. If it is found and can be linked directly to him, the court has the power to make him pay back money he has been given to fund his defense.

Taylor's new defense team is expected to be in place in time for his trial's scheduled resumption on Aug. 20.

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.

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

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.*

Should the extremely poor population of today's South Africa be held responsible for making 'reparation' payments to people and institutions in even poorer Mozambique, Angola, Namibia, and elsewhere that were damaged by the apartheid regime's decades-long aggressions against those countries?

Should the largely pauperized population of today's Iraq be held responsible for making 'reparation' payments to people and institutions in Iran that were damaged by Saddam Hussein's September 1980 invasion of Iran and the very lengthy war that ensued and that also involved Iraq's largescale use of chemical weapons against Iran?

I would say that the people damaged in all three of these cases have roughly equivalent moral claims to some form of 'reparation'. But the problem is, of course, that the people now governing in South Africa (and 'governing' as best they can in Iraq) are people who were themselves majorly the targets of the earlier, abusive governments in those two places. So it is hard to see how these new successor governments can be held responsible for the sins of their predecessors... And indeed, in South Africa, the question of the country paying financial recompense to the peoples of Mozambique, Namibia, and Angola has never really to my knowledge come up.

And neither has the question of Iraq paying reparations to Iran.

All of which makes it fairly disquieting for me to have learned recently that the UN Compensation Commission that was established in 1991 with the purpose of "process[ing] claims and pay[ing] compensation for losses and damage suffered as a direct result of Iraq's unlawful invasion and occupation of Kuwait" has continued until now on its course of turning over to Kuwait and other claimants regular payments funded by the UNCC's expropriation of five percent of the proceeds of Iraq's oil exports.

Just yesterday, the UNCC issued a press release describing proudly how in the current quarter it has disbursed $417.8 million to claimants in seven countries. The countries that got the biggest shares of those payments? Kuwait, which got $335.5 million, and Saudi Arabia, which got came in a distant second with $30.3 million.

A factsheet issued by the UNCC some time earlier reported that "Awards of approximately US$52.5 billion have been approved in respect of approximately 1.55 million ... claims", and at that point around $21 billion had been disbursed. As far as I can see from the charts I viewed, the lion's share of that money has gone to Kuwait.

Now I know Saddam's regime was bad, and caused much damage to Saudis and Kuwaitis. And it is possible (I suppose) that there, somewhere, some indigent Kuwaitis who benefit a lot from these reparations. But Kuwait's GDP per capita in 2005 was $17,421. It seems quite crazy to me to expect that Iraq's hard-pressed people should still today-- 15 years after the liberation of Kuwait from Saddam's rule, and more than three years after Saddam's overthrow at home-- be paying these reparations to Kuwait.

Doesn't anyone in the international "community" remember the effect the reparations exacted from Germany after WW1 had in helping to incubate Nazism among the Germans? Is this a good way to build stability in the Gulf region today?

[Cross-posted at Just World News.]

What follows is a long post, that contains much material from the research trip I made to The Hague and Uganda in late July 2006.  The following links to different portions of it can only be used if you're looking at the archived version, not the "front page" of the blog.  

After an introductory section the post addresses the following: a brief decsription of the dimensions of the anti-humane crisis in northern Uganda;  the main points gleaned from a short focus-group discussion I held in an IDP camp near Gulu; my interview with ICC prosecutor Luis Moreno-Ocampo; a reflection on the effects of the work of the ICC and the ad-hoc tribunals; how Ugandans have been pursuing a way forward ; and some additional points.

In addition, you can read two columns I published in The Christian Science Monitor in mid-August about the situation in northern Uganda and the dilemmas it causes for the ICC: here and here.  You can read early, unedited field-notes from my time in Uganda, as posted on my personal blog Justworldnews.org, here , here , and here . And you can access the other valuable resources TJF has on Uganda, here.

Dep. Camp Leader Harry Okello:  The ICC should be suspended, to give peace talks a chance.  because if the prosecutions proceed, Kony won't ever come out of the bush.

Camp Defense Secretary Kito:  The ICC is looking only at the commanders.  But what about the other LRA fighters?  They would just spread out if the arrests proceed, and make more problems everywhere.

Driver Robert:  If you arrest Kony, though, it would be like doing away with the head of the household and it would be good because it would end the problem.

Vice Zone-leader Florence:  What mechanism does the ICC have to arrest Kony?  I hope it works.  I compare it to the situation of a hen and its chicks.  If you do away with the hen, the chicks will scatter.  That's good.

Camp Women's Chair Margaret: The ICC is not delivering the peace we need.  It will take a long time to do its work, anyway.  So meantime we should pursue peace.

Camp Leader Raymond Odoki:  I consider that the war here has become a kind of business.  But if the ICC arrests  its indictees then the backlash would come against the people.  We should make peace.  Look at the example of Sudan:  President Bashir sat down with Garang, and it was good.  We should avoid careless statements of the kind that President Museveni sometimes makes-- but he is also given false reports about what's happening by people who don't directly feel the pain of the conflict, as we do.

Housewife Wiliberti:  The arrest warrants won't work.  I see no way to end the conflict through issuing arrest warrants.  Therefore we should concentrate on making the peace talks work.

'Mobilizer' Dennis: The arrest warrants should be revoked so Kony and the other commanders can themselves come to the negotiating table.

Kito:  The UN is the biggest world body.  Why is the UN reluctant to go and fight Kony in Garamba?  [Note:  If this comment was correctly recorded, then it seemed to represent two views that I heard with some frequency in Gulu: first, a general misunderstanding of the ICC as being somehow a part of the UN, and of the UN as having impressive but suspiciously under-utilized policing and coercive capabilities; and second, a view that the 'international community' in general was involved in conspiracies to perpetuate northern Uganda's already lengthy civil war. See below: Ester.]

'Councillor' Catherine ( also, the Chairperson of her Sub-County, before she was relocated here):  I agree with what Dennis said.

... Peasant Farmer Angelo:  Why doesn't the ICC speed up its process and be done by August so we can can all back to our lands for the new planting season?

Harry Okello:  If the peace talks fail, then the governments of Sudan and the DRC should let theUgandan army go and get Kony.

Camp Women's Vice-chair Ester: The UN is the biggest world body.  Why is the UN not arresting Kony?  ... I believe the ICC is reluctant to arrest Kony themselves because they're all in business together.

Kito: The ICC should make an agreement with Kony that he could come out of the bush.  And both sides should keepo their contract.  

Harry Okello: We lost nearly all our livestock and so many valuable trees.  These were the sources of our livelihood.  We've lost our education system.

Raymond Odoki:  HIV and AIDS have come into our community.

Ester: We've had such an erosion of our traditional culture.

Raymond:  It used to be that our elders would sit with the children and talk with them and pass on their traditions.  But now, no more.  The kids don't even know their ancestral homes!  There will certainly be many land disputes when we do get back to our lands.  I also want to stress the issue of food.  What we are given here in the camp is certainly not enough to feed our families.

This was my third relocation during the war.  This relocation was in 1996.  Rebels had come to this general area and killed four people there [he pointed to one portion of hillside], six people there [he pointed elsewhere], and burned huts in other places.  The LRA and the army had both been very active in the region.  But at that point the government came in and gave us 48 hours to move ourselves and our families into this camp they were creating here.

Some people stayed outside the camp until 1997.  But then the army brought big, big guns to shoot at them. [He pointed to where that had happened.]  So then everyone came in.  

We had to leave behind everything that we had cultivated, and we have been here ever since.

The working of a criminal justice system assumes a social consensus.  In an established political system, criminals are everywhere recognized as marginal people.  But that wasn't present in Argentina at that time I was doing that.  There wasn't a consensus.  Many people there still saw the junta as protecting the interests of society.  Including my mother, who was in the same church as General Videla...

Justice is not just for the victims!  I had to work hard with my mother to convince her.  But then, after two weeks of the trial there, my mother said I had been right: what they had done were indeed crimes.  That trial delegitimized the use of violence by the army in that way and underscored a basic principle of the rule of law.

The challenge the ICC faces in its work is different from if you were sitiing in Boston or Stockholm.  There, the role of a court is to 'confirm' laws, but for us, here, it is to 'establish' laws.  And international relations have to be based on law-- including the 'duty to punish'.

In the DRC, the worst situation that occurred after 2002 was in Ituri propvince... In Uganda, nearly everyone agrees that the LRA was creating the worst situation...  With respect to the UPDF, we will still have to see whether their actions reach up to the 'gravity' threshhold.

We have 160 people working here, from 40 different countries.  I have sent 20 missions to Uganda.  I have talked to the Paramount Chief of the Scholi and so many other people there...

We have a particular goal, which is to prevent future crimes.  We have very good information from many, many sources-- the best in the world!  We don't care about idelogy.  We are just looking at the facts.

These kinds of massive crimes have no owners.  It is not just an Acholi crime or a Ugandan crime; but it's an international challenge...

The ICC is a bit different from the ad-hoc courts.  They were just a way to punish people according to the rules in their statutes.  But our role is much bigger:  It's to build something over the longterm.

Mao, a graduate of Yale Law School who was recently elected chair of the majority-Acholi Gulu District Council, expressed a nuanced view of the ICC's efforts: "As a lawyer, I know the ICC has its role.... And in general, that's an important role. All societies need to have an accountability system.... The essence of the court is to ensure accountability. But we have accountability systems in northern Uganda, too - our traditional systems."

Mr. Mao explained that the Acholi system of conflict resolution, called mat oput or "drinking the bitter root," requires perpetrators to acknowledge their crimes, show remorse for them, and ask the community for forgiveness. Western-style criminal proceedings require none of these things, though a perpetrator who shows remorse can sometimes win a lighter sentence.

Now, Mao, Ogenga-Latigo, and their allies are working fast to have the main points of mat oput codified and incorporated into Ugandan law. (Other countries that have incorporated traditional systems into national law in this way include New Zealand and Rwanda.) Mao told me he hopes this will enable Uganda to tell the ICC that if the LRA leaders undergo mat oput, then they have been fully dealt with under Ugandan law, and therefore the ICC should withdraw its indictments. Uganda's peace campaigners have also recently won the right, as recognized victims of Kony's crimes, to be represented in a "pretrial" hearing here at the ICC: They plan to use that hearing to argue strongly, as victims, that the indictments be dropped.

1. This very useful resource, a paper from Zachary Lomo, the former director of the Refugee Law Project in Kampala.  It's a slightly modified version of a text he had printed in the Sunday Monitor on August 20.  It's titled, Why the International Criminal Court must withdraw Indictments against the Top LRA Leaders: A Legal Perspective .
2. The importance of the provisions that the ICC's Treaty made for taking into account the perspectives and interests of the victims of the crimes being tried...  "Representatives" of victims recently won the right to take part even in pre-trial proceedings in The Hague, and it seems this might actually provide a way for Uganda's civil-society peacemakers to have serious input into whether the case should actually proceed.
   
   

In general references, Amnesty International uses the term "truth commission" in preference to "truth and reconciliation commission". This is because, while some form of reconciliation may be the desired outcome of a truth-telling process over the medium or longer term, that cannot be imposed by either a truth commission or any other body or procedure... In using the term "truth commission", however, Amnesty International notes that, as commissions of inquiry, truth commissions have the task of investigating and publicizing facts, particularly facts which have hitherto been hidden or misrepresented, rather than uncovering the ‘truth’ in an historical or philosophical sense.

As longtime TJF readers might have guessed by now, I for one don't believe that that needs of "reconciliation": can be disposed of so neatly.  After all my experience of having lived in and also studied societies plagued by chronic, atrocity-ridden violence, I conclude that the establishment of a sustainable and rights-respecting political order going forward is the most important task that these societies face; and in order to do that, the needs of inter-group reconciliation must be placed in center stage.  In the absence of such reconciliation no system of governance can emerge that can provide any guarantee that people's most basic human rights-- including those to life, liberty, and physical security-- will be assured.

The AI authors, by contrast, simply sweep the needs of reconciliation aside in that very cavalier fashion.  Instead of recognizing any link at all between reconciliation and the establishment of a rights-respecting order going forward, they focus on other dimensions in which they argue that truth commissions can help atrocity-plagued states to meet their human rights obligations under international law, as follows:

Amnesty International has particularly followed the work of the truth commissions in Chile, Timor-Leste, Ecuador, El Salvador, Guatemala, Haiti, Morocco, Nepal, Nigeria, Peru, Sierra Leone, South Africa, Sri Lanka and Uruguay. On the basis of this experience, the organization considers that truth commissions can help to ensure a state’s compliance with its obligation to respect, protect and fulfil the right of victims of human rights violations to an effective remedy. This obligation includes three elements:

• Truth: establish the facts about violations of human rights that occurred in the past;
• Justice: investigate past violations and prosecute the suspected perpetrators;
• Reparation: provide full reparation to the victims and their families, including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.