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AfterViolent ConflictA HandbookHandbook Series
ReconciliationAfterViolent ConflictA Handbook
Editors:David Bloomfield, Teresa Barnesand Luc Huyse
Contributors:David Bloomfield, Noreen Callaghan, VannathChea, Mark Freeman, Brandon Hamber,Priscilla B. Hayner, Luc Huyse, Peter Uvin,Stef Vandeginste, and Ian White.
Handbook Series.The International IDEA Handbook Series seeks to present comparative analysis, information and insights on a range ofdemocratic institutions and processes. Handbooks are aimed primarily at policy-makers, politicians, civil society actors andpractitioners in the field. They are also of interest to academia, the democracy assistance community and other bodies.
International IDEA publications are independent of specific national or political interests. Views expressed in this publicationdo not necessarily represent the views of International IDEA, its Board or its Council members.
ForewordThere is no handy roadmap for reconciliation. There is no short cut or simple prescription forhealing the wounds and divisions of a society in the aftermath of sustained violence. Creating trustand understanding between former enemies is a supremely difficult challenge. It is, however, anessential one to address in the process of building a lasting peace. Examining the painful past,acknowledging it and understanding it, and above all transcending it together, is the best way toguarantee that it does not and cannot happen again.As our experience in South Africa has taught us, each society must discover its own route to reconciliation. Reconciliation cannot be imposed from outside, nor can someone elses map get us to ourdestination: it must be our own solution. This involves a very long and painful journey, addressingthe pain and suffering of the victims, understanding the motivations of offenders, bringing togetherestranged communities, trying to find a path to justice, truth and, ultimately, peace. Faced with eachnew instance of violent conflict, new solutions must be devised that are appropriate to the particularcontext, history and culture in question.And yet, despite the differences between Cape Town and Kigali, between Belgrade and Belfast,there are also similarities in each situation. The authors of this Handbook are not proposing simplesolutions, but they are offering a range of options, built on expertise and experience drawn fromaround the world. They provide a solid basis for constructing, adapting and adopting ideas and tools new and old, foreign and domestic, but above all practical and effective to design a reconciliationprocess appropriate to a particular set of circumstances.In South Africa we have travelled a long way down the road of reconciliation, but our journey isnot yet over. Reconciliation is a long-term process and it must and will continue for many yearsto come. And yet, we have made a good start. For us, truth was at the heart of reconciliation: theneed to find out the truth about the horrors of the past, the better to ensure that they never happenagain. And that is the central significance of reconciliation. Without it people have no sense of safety,no trust, no confidence in the future. The aim must be, as the Handbooks authors say, to build ashared future from a divided past. There is no alternative way to lasting peace.As we continue our own journey towards peace in South Africa, I commend this Handbook to thosewho struggle for reconciliation in other contexts around the world. I hope that the practical toolsand lessons from experience presented here will inspire, assist and support them in their supremelyimportant task.
desmond tutuArchbishop Emeritus
PrefaceIDEAs vocation is to promote sustainable democracy around the world. This includes attention tothe specific challenges of democratization after violent conflict. This may involve the reconstruction of politics and society by national actors, or the temporary stewardship of democracy-buildingby the United Nations or others. In either context, the subject of reconciliation the process ofaddressing the legacy of past violence and rebuilding the broken relationships it has caused is afocus of increasing interest. There is also an urgent demand for better tools to address this mostdifficult of post-violence issues. This Handbook is a response to such demand.For IDEA, democratic processes and structures are in themselves the most effective means for thepeaceful prevention and management of conflict, especially in post-conflict contexts, where the mosturgent need is for mechanisms that will, first and foremost, ensure that there will be no return to theviolence of the past. More specifically, an appropriate reconciliation process designed to fit the context,and owned by all stakeholders concerned is a vital measure in order to address adequately the legacyof the past, to develop working relationships in the present, to build a shared vision of the future,and thus to support and sustain nascent democratic structures. We do not offer universal models ofreconciliation in this handbook. Rather, we offer general advice and specific options to policy-makersand practitioners, to assist them in designing the most suitable reconciliation process for their particularneeds. These options are based on actual experience from post-conflict situations around the world.This book contains accumulated wisdom from acknowledged experts, politicians, civil society leaders,all of whom speak from their own personal experience of tackling the challenges of reconciliation intheir own situations.Reconciliation has only recently been recognized as a necessary component of post-violence reconstruction. Evidence and experience are still being accumulated. Consequently, this Handbook doesnot pretend to be a definitive statement on the subject, but rather a practically-oriented survey of theknowledge to date. Indeed, we invite critical comment and further inputs. We know that reconciliation can never be a quick fix. It requires time and patience, an incremental approach and a capacityto evolve and adapt to challenges and opportunities.The topic is huge, but the need is great since reconciliation is among the most difficult challengesfacing new or restored democracies. We hope that the contents can be of practical assistance instimulating the design and implementation of appropriate reconciliation processes which will, inturn, support and strengthen appropriate democratic structures. This Handbook, which is producedas part of IDEAs work on democracy building and conflict management, will also be used in training, discussion and co-operation with colleagues and partner bodies around the world and we inviteinterested organizations to make contact.We owe a huge debt of thanks to Prof. Luc Huyse, who shouldered the onerous task of lead writeron this project. We could not have chosen a more able, more knowledgeable or more co-operativecolleague. We also thank the many experts of world renown who have contributed to the text,including Birgitte Soerensen, our adviser on gender issues. We are very grateful to our memberstate, the Netherlands and observer country, Switzerland, which contributed towards the cost of theproject. Last but not least, credit also goes to our own staff in the Democracy, Dialogue and ConflictManagement Programme and the Publications Section, who have seen the Handbook through fromstart to finish.
karen foggSecretary-General, International IDEA
5 O FF ENDER S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 675.1 Understanding Offenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .675.2 Offenders and Reconciliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .725.3 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75
7.1 Retributive Justice: the Promise, the Practice and the Risks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .977.2 Amnesty: a Questionable Alternative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087.3 Restorative Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
annexesRelevant Institutions and Web Sites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Reconciliation: an Introductiond av i d b loom f i e l d
however fair and just they are, if there is not the minimum degree of cooperation in the interrelationships of those involved.This realization has in recent years been absorbed and assimilated by the international community.Thus, for example, the United Nations (UN) now speaks of democracy as being not only the holdingof regular elections but the development of a democratic culture within a society, so that the patterns of democratic discourse, of conflict management, filter through to all levels of political and civilsociety and manifest themselves in constructive relationships between societys differing constituenciesand opinion groupings. There is still considerable debate on exactly what a democratic culture meansand how to promote it, but clearly it suggests the need for cooperative relationships to implementthe structures of democracy.The conclusion to all this is that relationships matter. And that is where reconciliation comes in.In what are nowadays termed post-conflict societies, the pattern is generally that the warring sidesnegotiate a settlement in the form of new structures for governance. Almost always, these structuresare democratic. So former enemies - often with a long history of violence between them - findthemselves faced with the challenge of implementing the new negotiated structures for the futuremanagement of their differences on a minimally cooperative basis. One of the biggest obstacles tosuch cooperation is that, because of the violence of the past, their relations are based on antagonism,distrust, disrespect and, quite possibly, hurt and hatred. It is hardly a recipe for optimism, no matterhow effective or perfect those new structures may be.So there is a pressing need to address that negative relationship. Not to make enemies love eachother, by any means, but to engender a minimum basis of trust so that there can be a degree ofcooperation and mutual reliance between them. To achieve this, they need to examine and addresstheir previous relationship and their violent past. Reconciliation is the process for doing exactly that.While democratic compromise produces the solutions regarding the issues in conflict, then, reconciliation addresses the relationships between those who will have to implement those solutions. It isimportant to point out, though, that this applies not simply to the politicians and the deal-makerswho are engaged in the compromise. It applies to the entire population. The relationship which mustbe addressed is not simply that between parliamentarians or leaders, but between whole communities.It is entire communities who have to begin to reorient themselves from the adversarial, antagonisticrelations of war to more respect-based relations of cooperation. The very best democratic system inthe world produced by the most able democrats will not survive if the general populations to whichit applies are not minimally prepared to trust the system and each other and at least try it out. A keyelement of that process of developing a democratic culture is to engender the relationships necessaryfor good democracy between communities, neighbours, constituencies, individuals and so on.In a very important sense, then, reconciliation underpins democracy by developing the workingrelationships necessary for its successful implementation. Likewise, of course, democracy also underpins reconciliation: at many points in this Handbook, the authors repeatedly point out that reconciliation - the healing of relationships - needs the underpinnings of economic justice, of political andsocial power-sharing, and so on. Democracy and reconciliation are intertwined, indeed, interdependent.Again, we return to the point made above: we promote democracy and reconciliation for pragmaticreasons. There is a moral case to be made that reconciliation is the right thing to do. But there is alsoa powerful pragmatic argument to be made: positive working relationships generate the atmospherewithin which governance can thrive, while negative relations will work to undermine even the bestsystem of governance. Reconciliation, though not easy, is the most effective way to address those11
relations. (Indeed, the case study of Cambodia that follows chapter 3 warns against trying to dealwith reconciliation purely through politics. Issues and relationships are separate, though intertwined, elements; and politicsWhile democratic compromiseproduces solutions regardingand reconciliation are separate but interdependent processes.)issues in conflict, reconciliationAs this Handbook demonstrates, all the experience around theaddresses the relationshipsworld teaches the importance of this point. Reconciliation isbetween those who will havenot a luxury, or an add-on to democracy. Reconciliation is anto implement those solutions.absolute necessity.1.2 The Process of Reconciliation1.2.1 What is Reconciliation?Reconciliation is a complex term, and there is little agreement on its definition.This is mainly because reconciliation is both a goal - something to achieve - and a process - a meansto achieve that goal. A great deal of controversy arises from confusing these two ideas. This Handbookfocuses very firmly on the process. The goal of reconciliation is a future aspiration, something important to aim towards, perhaps even an ideal state to hope for. But the process is very much a presenttense way of dealing with how things are - building a reconciliation process is the means to work,effectively and practically, towards that final goal - and is invaluable in itself.A second source of complexity is that the process of reconciliation happens in many contexts between wife and husband, for example, between offender and victim, between friends who haveargued or between nations or communities that have fought. The focus of this Handbook is onreconciliation after sustained and widespread violent conflict. Typically, we have in mind what isoften called a post-conflict situation: war has ended, a settlement has been reached, and a new regimeis struggling to construct a new society out of the ashes of the old. Part of that task of constructionis to build better relationships between the previously warring factions. This Handbook concentrateson such specific situations, typically the aftermath of civilwar or the end of a brutally oppressive regime, becauseReconciliation is both a goal andthose are the contexts around the world today where thea process. This Handbook focusesneed for reconciliation is most pressing. But we hope andvery firmly on the process.believe that the tools offered here will be useful in other,different contexts.Reconciliation is an over-arching process which includes the search for truth, justice, forgiveness,healing and so on. At its simplest, it means finding a way to live alongside former enemies - notnecessarily to love them, or forgive them, or forget the past in any way, but to coexist with them, todevelop the degree of cooperation necessary to share our society with them, so that we all have betterlives together than we have had separately. Politics is a process to deal with the issues that have dividedus in the past. Reconciliation is a parallel process that redesigns the relationship between us. This isan immense challenge, and no one should think that it is quick or easy. But the effort carries a greatreward: effective reconciliation is the best guarantee that the violence of the past will not return. Ifwe can build a new relationship between us that is built on respect and a real understanding of eachothers needs, fears and aspirations, the habits and patterns of cooperation that we then develop arethe best safeguard against a return to violent division.And so we reach our basic definition of reconciliation: it is a process through which a society movesfrom a divided past to a shared future.
experience demonstrates that women (and often also other politically marginalized groups) havelimited access to peace negotiation processes and little or no representation in government and otherdecision-making bodies. This lack of involvement in political processes seriously reduces their possibilities to voice their concerns and interests and ensure that these are recognized as political concernsat a crucial point. And this may again result in a certain alienation from the nation and the state.1.2.3 Truth, Justice and ReconciliationThis Handbook recommends a wider view of the reconciliation process than is often used. For example, in many post-conflict contexts, people talk about truth and reconciliation and often establishcommissions of enquiry with exactly that title. Seeking for accuracy about the past is a vital stepin the reconciliation process, according to our wide definition, as is allowing victims to tell theirstories. But truth in itself will not bring reconciliation. Truth-seeking is a key ingredient, but onlyone ingredient, in reconciliation. In the same way justice is a vital requirement for healing wounds,making offenders accountable and re-establishing relations of equity and respect. But justice alonedoes not bring reconciliation. Truth and justice are not separate to reconciliation: they are key partsof it.Many people, especially theBox 1.1: The Reconciliation Processvictims of great hurt, are suspicious of reconciliation and seeThe process of reconciliation is not:it as an excuse to belittle or an excuse for impunity;ignore their suffering. It can only an individual process;indeed be misused in that way. in opposition to/an alternative to truth or justice;But this is the result of think a quick answer;ing of reconciliation as only a a religious concept;goal, not a process. These peo perfect peace;ple often, and rightly, suspect an excuse to forget; northat a fast move to a state where a matter of merely forgiving.everyone is apparently reconThe process of reconciliation is:ciled to the past and to each finding a way to live that permits a vision of the future;other is a way of short-cutting the (re)building of relationships;proper processes of justice, coming to terms with past acts and enemies;truth-telling and punishment a society-wide, long-term process of deep change;that it means they must for a process of acknowledging, remembering, and learning from the past; andgive and forget. This is not the voluntary and cannot be imposed.aim of this Handbook. Thatstate of reconciliation is a verylong-term objective, which can only be reached after all the important ingredients of justice, truth,healing and so on have been addressed. And the overall process in which all these and other issuescombine is the reconciliation process.Most of what follows in these pages is about examining the complex relationships between theseissues as they make up the process.1.3 The Necessity of ReconciliationThere is nothing simple about the reconciliation process. Especially in the immediate aftermath ofa negotiated settlement to a violent conflict, it can appear to be an impediment to more important14
priorities. With the urgent political pressures to establish the newly agreed democratic structures,resource pressure and time pressure, it is in fact very tempting, especially to politicians, to concentrateon the political process. Indeed, they may genuinely not see how to include reconciliation in the massof work ahead of them. Thus reconciliation can be delayed until other priorities are completed, or canbe reduced to a quick commission of enquiry which will acknowledge the painful past and rapidlymove on. Everyone wants to get on, to move fast, to get away from the past as quickly as possible.It can seem as if slowing things down, dwelling on the painful past and the unfinished thoughts andfeelings around past violence, would endanger the new political and social structures. The argumentruns something like this: How are we to expect our politicians to begin establishing the patternsof future cooperation in government if we spend time digging up and examining in public the verythings that divided them in the past? That will surely just undermine the fragile cooperation that weare attempting, by holding on to the past instead of looking to the future. Would it not be betterto concentrate for the time being on our similarities and leave our differences to a later, less tensetime?This is understandable, but it is counterproductive. Such reflection on the past is as necessary asit is painful because a divided society can only build its shared future out of its divided past. It isnot possible to forget the past and start completely fresh as if nothing had happened. Indeed, themotivation for building a future is precisely to ensure that the past does not return - and so aclear understanding of, and a coming to terms with, that past is the very best way to guarantee itwill not come back to haunt a society. The past must be addressed in order to reach the future.Reconciliation, if it is designed and implemented in a genuine and meaningful way, is the means todo that. Throughout this Handbook, tools are offered for suchexamination of the past, the use of which will generate a moreThe past must be addressedcooperative present in order to begin to develop a safer futurein order to reach the future.Reconciliation is the means toof coexistence.do that.At the political level, failure to address the past through areconciliation process - easier option though it might appear will almost guarantee the failure of the future. Politicians reach agreement through negotiation overthe issues in conflict. They find compromises, bargains or pragmatic ways to cooperate within thebounds of their self-interest. That is their job, and it is a vital part of transforming a situation offormer conflict into one of future peace. But their best efforts will be totally undermined if theydo not also address the broken relationship between the communities they represent, as well as theissues that broke it. The very best democratic system in the world will not endure if sections of itspopulation do not have a modestly cooperative relationship underlying their agreement to work withthe new structures.This is the basic, pragmatic reason why every new post-conflict democracy has to reconcile. Wherereconciliation, at first glance, may seem to be a hindrance to establishing working democracy, in factit is a necessary requirement for the long-term survival of that democracy. This is not the easy answer,but it is the reality. Meaningful reconciliation is a difficult, painful and complex process, but it mustbe grasped, because ignoring it sows the seeds of later, greater failure. On the other hand, effectivelyreconciling the divided elements of a society will, with time, permit the development of truly cooperative patterns of working and envisioning the future, which will be among the strongest guarantorsof successful democratization.
Some post-conflict societies tend to look within their own culture and traditions for existing,home-grown mechanisms for reconciliation and justice (see chapter 7). The fact that these are usuallycheaper than importing huge Western-designed models is one reason to encourage this development.(Another reason is that, since such mechanisms are anchored in existing values and relationships,they are more likely to win broad support. But this does not mean that they are the perfect answers.Adaptation is still needed to ensure that such local justice tools function inclusively and fairly,particularly with regard to women and their interests, experiences and rights.)While it may sound almost trite to say that the international community is a potential source offinance and expertise, there is a growing degree of truth in this. Increasingly, bilateral and multilateraldonors, as well as multilateral and regional actors, are beginning to realize the importance of reconciliation as an ingredient in conflict prevention, human development, human security, the eliminationof poverty and peace-building, as has been shown by recent declarations from the Organization forEconomic Co-operation and Development (OECD) Development Assistance Committee (DAC),for example, or the literature produced by several development cooperation agencies in the West.Such donors are more prepared than before to see reconciliation as fitting their general parametersfor assistance.Above all, lack of resources must not become an excuse for not beginning the process of reconciliation. Some elements are low-cost; some elements will attract donors. Economic constraints can, andalways will, impinge on the process design, but even economics is not a good enough reason to avoidcompletely the necessity of effective reconciliation.Every attempt has been made to illustrate all assertions in thisHandbook with a concrete example from the real world. This hasThere is no universally applinot been straightforward, and it has not always been possible.cable, perfect reconciliationReconciliation as a concept is still a comparatively new elementmethod or model.in peacemaking, and some of its ideas remain untested or unaddressed; others have only been applied in real situations once ortwice. Consequently, it has sometimes been necessary to fall back on making general points withouta specific example. Nonetheless, the generalizations made here are based on impressions gatheredfrom close examination of many varied reconciliation initiatives, peace-building efforts and conflictmanagement strategies.What is perhaps most important is to emphasize that no one has produced a perfect reconciliationmethod or model - indeed, of course, there is no such universally applicable thing - and thereforethose who face the challenge of post-conflict peace-building should trust their own capacities to takewhat advice they can get from elsewhere but to be creative in developing their own original process.What follows in this Handbook is a wealth of information and advice, tools and methods, to assistsuch a process. For now, in a brief conclusion to this introductory chapter, we simply offer the following very basic general principles which should underpin the design of every reconciliation process,and which may assist readers as they work through this Handbook: Begin early, when attitudes are most receptive to change and challenge. Stick to the commitment, and deal with the hard issues: they will only get harder with time. Give it sufficient time: it cannot be rushed. Be transparent about the goals, the difficulties, the time span and the resources.1.5 How to Use This HandbookThe pages that follow present an array of the various tools that can be, and have been, employed in17
the design and implementation of a reconciliation process. There are some practical ideas borrowedfrom academics and practitioners. (In the interests of readability, full reference details of individualcitations are provided in the References and Further Reading sections at the end of each chapter.)Most of the tools, however, come from the experience of others grappling with the issues of reconciliation in various contexts.There is no right answer to the challenge of reconciliation, and so we do not try to prescribea one-size-fits-all solution. Instead, we present the tools, with their strengths and weaknesses: theyare to be adopted and adapted, changed or replaced, as they suit the specific context to which areader applies them. Some will be appropriate, while some will not. The business of carefully thinkingthrough their relevance or otherwise (including asking the question, Why wont that work here?)should be an illuminating one and a positive step towards providing the most suitable process forthe context to hand.Part I examines the basic concepts and general principles of the process of reconciliation (chapter2) and the context within which it takes place (chapter 3). The points it makes are illustrated by casestudies from Zimbabwe and Cambodia. Part II looks in depth at the people involved at the core of theprocess - the victims (chapter 4) and the offenders (chapter 5). Part III examines the key instruments- healing (chapter 6), justice (chapter 7), truth-telling (chapter 8) and reparation (chapter 9). It isillustrated by case studies from Northern Ireland, Rwanda, South Africa and Guatemala. Part IVlooks briefly at the supportive role of the international community (chapter 10), followed by a briefsummary and conclusion to the entire Handbook (chapter 11).Annexes at the end provide information on relevant organizations and useful internet sites.
Reconciliation means different things to different people. Its significance varies from culture toculture, and changes with the passage of time. To get a grip on the concept, the Handbook posesfour basic questions: What? Who? How? When?2.1 What is Reconciliation?2.1.1 IdeallyIdeally reconciliation prevents, once and for all, the use of the past as the seed of renewed conflict.It consolidates peace, breaks the cycle of violence and strengthens newly established or reintroduceddemocratic institutions.As a backward-looking operation, reconciliation brings about the personal healing of survivors, thereparation of past injustices, the building or rebuilding of non-violent relationships between individuals and communities, and the acceptance by the former parties to a conflict of a common vision andunderstanding of the past. In its forward-looking dimension, reconciliation means enabling victimsand perpetrators to get on with life and, at the level of society, the establishment of a civilized politicaldialogue and an adequate sharing of power.2.1.2 In PracticeIn practice such all-encompassing reconciliation is not easy to realize. The experience of a brutal pastmakes the search for peaceful coexistence a delicate and intricate operation. Reconciliation is not anisolated act, but a constant readiness to leave the tyranny of violence and fear behind. It is not anevent but a process, and as such usually a difficult, long and unpredictable one, involving varioussteps and stages. Each move demands changes in attitudes (e.g., tolerance instead of revenge), inconduct (e.g., joint commemoration of all the dead instead of separate, partisan memorials) and inthe institutional environment (e.g., integrating the war veterans of both sides into one national armyinstead of keeping ex-combatants in quasi-private militias). Above all, the approach must be thatevery step counts, that every effort has value, and that in this delicate domain even a small improvement is significant progress.There is a certain danger in talking about reconciliation in terms of strict sequences. The processis not a linear one. At each stage a relapse back into more violent means of dealing with conflicts isalways a real possibility. And the stages do not always follow logically after each other in any set order.Nonetheless, they remain essential ingredients for lasting reconciliation.Three StagesStage 1. Replacing Fear by Non-Violent CoexistenceWhen the shooting stops, the first step away from hatred, hostility and bitterness is the achievement19
economic justice has not been achieved. It is widely believed that the end of the policy of reconciliation is partly based on and backed by a general disappointment among large sections of the blackpopulation who see that the economic disparities between Africans and white settlers have not disappeared. The experience of Zimbabwe is examined in the case study at the end of this chapter.2.1.3 What Reconciliation Is NotThe use of the term reconciliation in dealing with past human injustice is not without its dangers.The interpretation of the concept is contested, and there are many erroneous notions of what reconciliation is. (See section 1.2 for clarification of the definitions of reconciliation.)In a political context, those who want nothing done may cynically plan reconciliation merely as asmokescreen. Victims, on the other hand, may perceive and condemn it as a code word for simplyforgetting. For those who have to live with their own pain and trauma, the term is indeed extremelysensitive. As a victim of apartheid told the South African Truth and Reconciliation Commission(TRC), Reconciliation is only in the vocabulary of those whocan afford it. It is non-existent to a person whose self-respectReconciliation must be seen ashas been stripped away and poverty is a festering wound thata long-term process that mayconsumes his soul. A general feeling among black and coltake decades or generations.oured South Africans is that the discourse on reconciliation haspressured them towards a premature closure with the past.A second source of misunderstandings is that the people of a post-conflict society are sometimesforced to be impatient, as if coexistence, trust and empathy can come swiftly. Such timing,expecting too much too soon - especially if it is proclaimed as official policy - is doomed tofail. Reconciliation must be seen as a long-term process that may take decades or generations.Reconciliation based on ambiguity will not last. The notion and its interpretation must be publiclydiscussed. Here lies a task for the authorities, the media, schools and civil society in its broadest shape- NGOs, advocacy groups, religious institutions and so on. The need for peaceful coexistence, trustand empathy must be internalized before any effective policy can be set in motion. Such societywide debate will have to take into account that genuine reconciliation is much more than rebuildingrelationships between former enemies, or between victims and perpetrators.2.2 Reconciliation: Who is Involved?Coexistence, trust and empathy develop between individuals who are connected as victims, beneficiaries and perpetrators. This is reconciliation at the interpersonal level. That is, for example, whathappens when the victim is willing to shake hands with the torturer who inflicted their pain. Manyinitiatives in the area of healing (for example, counselling victims and offenders together) and restorative justice (for example, mediation) take this route towards reconciliation. However, all the steps inthe process also entail the reconciling of groups and communities as a whole. Each perspective, the interpersonal and the colAll the steps in the processlective, has its own chemistry but they are equally importantentail the reconciling of not onlyin the process.individuals, but also groups andcommunities as a whole.Individual victims and perpetrators are at the heart of all reconciliation activities. However, both categories embrace manymore persons and groups than those who are directly involved in acts of political, ethnic or religiousviolence. The definition of victimhood, as it is used in chapter 4, includes family members, neighbours and even friends of direct victims, all of whom may have been traumatized by what they22
have experienced or witnessed. Accountability must be understood in similarly broad terms. Forexample, beneficiaries of the South African apartheid system are guilty in a moral sense. Indifference,incompetence or neglect may be at the origin of the complicity of the international community (seechapter 5). Special attention should be given to the victims and offenders who fled their country andare living as refugees in neighbouring countries or as asylum seekers around the world. The tendencyto forget these people is often the source of persistent problems in the search for reconciliation. Thequestion is particularly delicate in cases where refugees return to areas and communities that remainunhealed and are consequently unprepared to receive men and women who are either victims orperpetrators. As a former head of the United Nations High Commission for Refugees (UNHCR)wrote, Returnees can indeed be an obstacle to coexistence and reconciliation. Their return inevitablyraises issues of property, compensation, unpunished crimes.There are various types of collective victims and offenders (see chapters 4 and 5). Religiousinstitutions may be both victims (for example, in East Timor) and co-responsible for grave violationsof human rights (as was the case in apartheid South Africa). Churches can act as facilitators - inNorthern Ireland members of the Protestant clergy held meetings with Catholic paramilitary andpolitical leaders - organize victim support, provide safe places for victim/offender dialogue and delivera spiritual contribution to healing programmes. Hate media, likeRadio Milles Collines in Rwanda, which helped incite the genoLasting reconciliation mustcide, may be extremely culpable, but the media can be an invaluablebe home-grown.tool in disseminating information to increase trust and empathy.The role of the international community is important, too, but itmust take a cautious and restrained approach. Respect for the specific historical and cultural contextof a conflict and of a domestic reconciliation process is essential. Lasting reconciliation must behome-grown because in the end it is the survivors who assign meaning to the term and the process.The credibility of official institutions like the UN and of NGOs is often damaged because of anexplicit disregard for this central rule that a post-conflict society must own its reconciliation process.However, even within such a context of caution and restraint, the international community can bevery useful in supporting and monitoring local reconciliation programmes, giving advice and training, and providing material resources. For example, the UN has constructively sponsored truth-tellingin El Salvador and Guatemala.2.3 Reconciliation: How?Burying the past in a reconciliatory way requires the mobilization of a variety of techniques (see figure2.1). Most of them have to be activated in the short run: healing the wounds of the survivors; some form of retributive or restorative justice; historical accounting via truth-telling; and reparation of the material and psychological damage inflicted on the victims.There are close links between these four mechanisms. Without reparation there can be no healing.Restorative justice, if adequately organized, can heal the wounds of both victim and perpetrator.Telling his or her story also can have a healing effect on the victim and the offender (revealingis healing was the slogan of the South African TRC). In addition, the acknowledgement of whathappened is a way of breaking the vicious circle of impunity: silence and amnesia are the enemiesof justice.23
Much has been written about the influence of these four instruments in the reconciliation process.Some believe that truth-telling, for example, leads directly to trust, empathy and even forgiveness.This conviction is clearly present in the label truth and reconciliation commission. It is an accuratename insofar as seeking for accuracy about the past is a vital step in the reconciliation process, according to our wide definition. But truth in itself will not bring reconciliation. Truth-seeking is a keyingredient, but only one ingredient, in reconciliation. In the same way, justice is a vital requirementfor healing wounds, making offenders accountable, and re-establishing a relationship of equity andrespect. But justice alone does not produce full reconciliation. Truth and justice are not separate fromreconciliation: they are key parts of it.Figure 2.1 Reconciliation: The Instruments
(chapter 8)
(chapter 6)
Peaceful coexistenceTrustEmpathyA culture of democracy
Restorative justice(chapter 7)
Reparation(chapter 9)
Healing, truth-seeking, justice and reparation lay the foundations for the gradual creation of thevarious outcomes of the reconciliation process. They create favourable conditions and generate opportunities. But other, often long-term, investments are also needed, such as educational programmesand human rights awareness activities.Decisions to be Taken, Choices to be MadePolitical and civil society leaders are faced with a variety of strategic and structural choices. Theidentification of critical factors and potential solutions is crucial. Many of these choices are dealt within other chapters, but the following is a brief presentation of some of the more general problems.The Question of Whether to Address ReconciliationIt seems self-evident to see reconciliation as a vital requirement in societies that are emerging froma terrifying past, but there are post-conflict countries where the notion of reconciliation is simply24
rejected in public discourse. A UNHCR memorandum notes: In Rwanda, for example, the attitudeof the government in the years that followed the genocide was to insist on the need for justice. Theword reconciliation was taboo for those who had survived genocide, and was never publicly used.In Kosovo, the very word reconciliation is so charged for the Albanian community, that it is simplynot used.The place reconciliation receives on the agenda of a transitional society depends on the particularconjunction of political, cultural and historical forces. Demands for a reconciliation policy tend tobe widespread following a negotiated shift from the old to the new order, for example, but largelynon-existent in the wake of a military victory. Where religion is a predominant feature of the culture,as in South Africa, calls for reconciliation programmes can be numerous and explicit. History, too,may have an effect, depending on previous experience with reconciliation initiatives. In post-WorldWar II Belgium, the idea of eventual reconciliation with those who had collaborated with the Naziswas greatly affected by memories of what had happened in the aftermath of World War I: many ofthe Belgians who had collaborated with the German occupiers in World War I and were grantedamnesty afterwards simply repeated the offence in 1940. Theiropponents felt that the repetition was encouraged by this leniAny reconciliation process is aency, and they consequently rejected as unthinkable calls forvery delicate operation. Butnot to address the issue is byspeedy reconciliation after World War II.far the worst response.Any reconciliation policy, as we have seen, is a very delicateoperation, and failures do happen. This may encourage postconflict societies to choose a minimalist approach or to avoid the venture altogether. But all one cansay is that not to address the question of reconciliation is by far the worst response.No One-Size-Fits-All PolicyThis Handbook presents a conceptual framework, but it is up to the local decision-makers to translatethe concepts into concrete, systematic programmes. This reality check is one of the most difficultchallenges in putting together a reconciliation policy, above all because the particular requirements ofeach post-conflict context require politically and culturally rooted responses.Moreover, one tool alone will not achieve reconciliation against a background of accumulatedfeelings of hostility. A combination of measures and instruments is called for. Such a mixture willhave to be innovative, again because of the uniqueness of each society that emerges from a violentconflict.Who Owns the Process?The role of the public authorities in planning and setting up reconciliation programmes is crucial,but opinions differ as to the direction such official policies should take.The bottomup approach is one that sees improved interpersonal relations among communitymembers as the primary area for reconciliation work. Local, home-grown reconciliation and grassroots initiatives are viewed as the key to success. In contrast, writes Hugo van der Merwe, a SouthAfrican scholar, the top-down approach is characterized by a perception that ... for local dynamics tochange, national intervention must first take place. This will then filter down, or create the conditions(and incentives) within which local actors can pursue reconciliation processes.The South African TRC took the topdown approach. Many observers have commented that thisstrategy led to some of its neglect of the perceptions of reconciliation in local communities and insufficient mobilization of NGOs. As a result many opportunities have not been taken - the educational25
potential of the NGOs in informing the population at large on the TRC, the databases they built upover the course of time, and the networks through which evidence could be collected.It is also an illusion to believe that reconciliation imposed from the top will automatically engenderindividual steps towards reconciliation. The authorities cannot impose trust and empathy by decree.Nor can they forgive in the name of the victims. (Former President Nelson Mandelas rhetoric aboutforgiveness is still a source of considerable frustration in parts of South Africas black community.)The history of amnesty legislation delivers the same lesson. Shortly after World War II, France andthe Netherlands issued amnesty laws for those who had collaborated with the Germans in a move tobury the past and speed up reconciliation and national unity, but this proved to be little more thana legal forgetting. It did not touch the hearts and the souls of many citizens. The amnesty policies ofseveral Latin American countries in the 1980s were even lesssuccessful. They did not, for example, discourage the familiesAuthorities cannot impose trustof the disappeared from demanding, again and again, justiceandempathybydecree.and retribution.Nevertheless, they can create aclimate that encourages privateNevertheless, what occurs at the official level is not entirelysteps towards reconciliation.without effect on individual attitudes and behaviour. Theauthorities can create a climate that encourages private stepstowards reconciliation. A public apology by a president, the establishment of a memorial day or theconstruction of a museum can have a considerable impact on individual victims and perpetrators.One conclusion might be that, in the words of van der Merwe: Top-down and bottom-up processes are both essential for a more sustainable long-term reconciliation process. They should, however,be pursued in a complementary fashion rather than at the expense of one another.Balancing Reconciliation and Retributive JusticeRestoring the moral order that has broken down requires that justice be done. A successor government owes it, above all, as a moral obligation to the victims of the repressive system. Post-conflictjustice serves to heal the wounds and to repair the private and public damage done by the antecedentregime. As a sort of ritual cleansing process, it also paves the way for a moral and political renaissance.On the other hand, judicial operations may thwart and stifle efforts for the lasting reconciliation onwhich the new regime depends in order to function.The need to close the history books is one of the main arguments of advocates of amnesty laws:they claim that reconciliation can only be produced if the successor elites refrain from prosecutingthe officials of the previous regime. Such was Uruguayan President Sanguinettis justification of anamnesty law pardoning abuses of a previous military regime: The Uruguayan government has decided to take measures of magnanimity or clemency using a mechanism provided for in the Constitutionof the Republic. The 12 years of dictatorship have left scars that will need a long time to heal and itis good to begin to do so. The country needs reconciliation to face a difficult but promising future.The same argument has been used by Nelson Mandela in defence of the amnesty clauses in the SouthAfrican provisional constitution and in the mandate of the TRC. Others argue that the absence ofjudicial actions precludes reconciliation.Tina Rosenberg, a journalist who has written extensively on this topic, says: If the victims in asociety do not feel that their suffering has been acknowledged, then they . . . are not ready to putthe past behind them. If they know that the horrible crimes carried out in secret will always remainburied . . . then they are not ready for reconciliation. She adds: The kind of reconciliation thatlets bygones be bygones is not true reconciliation. It is reconciliation at gunpoint and should not26
be confused with the real thing. To strike a balance between the demands of repressive justice andof reconciliation is no easy enterprise. It entails a difficult and, on occasion, tortuous costbenefitanalysis. All costs and gains must be balanced against each other. (See chapter 7 for a more detaileddiscussion.)2.4 Reconciliation: When, in What Order and How Fast?Given the volatility of an immediate post-conflict context, time management in processing reconciliation is an extremely important but difficult dimension in the search for a shared future. Policiesmust not come too soon or too late. Questions and challenges abound. When to develop reconciliation activities? What is the proper sequencing? What is the appropriate pace?2.4.1 TimeThe end of a violent conflict creates a complex agenda - rebuilding the political machinery and thecivil service, holding free elections, drafting a national constitution, guaranteeing a minimum ofphysical security, establishing a non-partisan judiciary, prosecuting human rights abusers, stabilizingthe currency, rebuilding the economic infrastructure, and so on. More often than not it will beimpossible to tackle all tasks simultaneously. As reconciliation is only one of the many challenges,short-term political or economic interests may lead to reconciliation measures being postponed. Ora post-conflict society may be forced to direct its efforts in several directions at once, ultimatelyallocating insufficient attention to the building of coexistence, trust and empathy.The decision as to when to develop reconciliation processes will inevitably impact seriously onthe final outcome. Difficult decisions have to be taken. To get the time as right as possible, policymakers must: Understand the times, that is, make an adequate reading of the forces that exert an influence onthe transition agenda. Be conscious of the importance of measures for the long term. Be aware that the mere passage of time will not ultimately generate reconciliation.Understanding the TimesSome of the factors affecting a societys dealings with a violent past, such as the nature of the peacesettlement, also shape the ranking of problems that appear on the transition agenda. Past experienceshows that this has often led to politics and economics being put first, at the expense of reconciliationprogrammes. International financial institutions (particularly the World Bank and the InternationalMonetary Fund) tend to encourage that approach. If political and economic reforms receive prioritythen, since improvement in socio-economic conditions for victims is a key step to reconciliation, caremust be taken not to damage the prospects of long-term reconciliation by establishing inappropriatepolitical and economic structures. (See chapter 3 for further discussion of factors affecting a societysdealing with a violent past.)However, reconciliation efforts cannot be put off indefinitely. Experience with past truth commissions suggests that the quality of witness statements diminishes quite fast. Healing also has to startsoon, as with time victims become further trapped in their pain and isolation. If the context preventsan early start, at least interim measures should be taken. Recent developments can help facilitate anearly start of reconciliation-oriented activities:27
Reconciliation is now clearly seen as a crucial dimension of conflict prevention - hence the moreprominent place given to it in the policies of post-conflict states, of the UN and of many donorcountries. In some post-conflict countries mobilization and empowerment of victims have reached a pointwhere demands for progress in the area of healing and truth-seeking can no longer be denied. The amount of information available on healing, truth-telling, justice and reparation programmeshas grown considerably. The experience of the South African and Guatemalan truth commissions hasled to the dissemination of quasi-models. Information networksnow exist - for example, the New York-based InternationalReconciliation is now clearlyCenter for Transitional Justice, and the Institute for Justiceseen as a crucial dimension ofconflict prevention.and Reconciliation in Cape Town - which offer professionalexpertise in the domain of reconciliation. Several internationalNGOs support local activities. Avocats sans Frontires, for example, has produced the manual that isbeing used in Rwanda to train the gacaca judges.
History teaches that, in the long run, such a policy is a serious obstacle on the road from a dividedpast to a shared future. Amnesia is the enemy of reconciliation because: It refuses victims the public acknowledgement of their pain. It invites offenders to take the path of denial. It deprives future generations of the opportunity to understand and learn from the past and toparticipate in the building of a lasting reconciliation.However, memory is a two-edged sword. It can play a crucial role in making reconciliation sustainable. But it also has the capacity to hinder reconciliation processes.There is the danger of too much memory. As Andrew Rigby writes: Too great a concern withremembering the past can mean that the divisions and conflicts of old never die, the wounds are neverhealed. In such circumstances the past continues to dominate the present, and hence to some degreedetermines the future. Memory is often selective and, worse, it can be manipulated and abused.Memory naturally tends to be selective. This is the case in everyday life, even in situations that arenot haunted by conflict. Selectivity produces real risks in the context of prolonged violence. MostAlbanians and Serbs in Kosovo, or Muslims and Serbs in Bosnia, for example, have developed completely different recollections of their common past. If they are not corrected through mechanismssuch as an independent truth commission, then selective memories are handed down from generationto generation.Memory can be manipulated. Policy makers in post-conflict societies often tend to impose a versionof the past that increases the chances of much-needed unity being achieved. This happened in postWorld War II France, where the German occupation had deeply divided the population into resistersand collaborators. After the war a well-planned operation of public discourse and academic researchminimized the importance of collaboration and maximized the role of the Resistance. A glorious pastwas invented. Only in the 1960s did cracks begin to appear in this official self-image, and the olddivisions rose again to challenge it.Wholesale abuse of memory is not uncommon. Some leaders of parties in a brutal conflict maydeliberately keep alive a memory that fuels the fires of hatred - Northern Ireland over many years isjust one example.Yet memory can also be a powerful instrument for achieving reconciliation.It may provide early warning signals, teaching future generations how to identify the first signs ofrenewed and potentially dangerous distrust. In the context of this argument the words of philosopherGeorge Santayana carry their full weight: Those who cannot remember the past are condemned torepeat it.It can be cast in forms that are conducive to reconciliation - permanent monuments to commemorate the fate of victims, places of remembrance (for instance, Robben Island in South Africa), memorial days or plays and poems. These give a collective dimensionto private pain, creating a long-lasting healing mechanism. AnSociety must try to attain theappropriate use of memory is considerably facilitated if a truthright delicate mixture of rememseeking institution - independent, official or civil society-basedbering and forgetting.- has prepared the ground. A publicly acknowledged reconstruction of the past might even allow for competing memoriesto coexist. Given the dangers of too much memory, a society must try to attain the right delicatemixture of remembering and forgetting.30
munity and individual needs tend to change fast in the immediate post-conflict period.2.4.3 TempoWhat is the appropriate cadence of reconciliation activities? Again, there is no standard approach.The appropriate time frame of the various stages in the process (achieving peaceful coexistence, trustand empathy) depends on each context. So does the amount of time needed to implement the fourpillars of reconciliation policy (healing, justice, truth-telling and reparation).Experience suggests that a rushed approach, as regularly advocated by national and internationalpeacemakers and facilitators, will almost certainly be counterproductive. In the immediate aftermath of a civil war or ofA rushed approach to reconciliation will almost certainly bean inhuman regime, victims are too preoccupied with theircounterproductive.own distress to develop trust and empathy in a hurry. In addition, coming to terms with human injustice is a deeply personal process. It touches the cognitive and the emotional, the rational and the non-rational in humanbeings. It is culturally determined and gender-based. How people view the tempo of a reconciliationprocess is also intimately linked with their position and experiences during the conflict. All this resultsin individuals and groups finding themselves at different levels and stages on the continuum thatleads from open hostility to trustful relations.
Other References
IntroductionIf yesterday I fought you as an enemy, today you have become a friend and ally with the samenational interest, loyalty, rights and duties as myself. If yesterday you hated me, today you cannotavoid the love that binds you to me and me to you. The wrongs of the past must now standforgiven and forgotten. The words are those of Robert Mugabe, Zimbabwes first post-colonialleader, and the time 17 April 1980, a few months after white Rhodesian rule ended. They mark thebeginning of the so-called Politics of Reconciliation. Victor de Waal has called Mugabes attitude amiracle and a demonstration of human maturity so far rarely equalled in our world. It put him,many observers said, in the company of other African reconciliation-minded statesmen - LopoldSenghor of Senegal, Julius Nyerere of Tanzania, Kenneth Kaunda of Zambia and Jomo Kenyattaof Kenya.Mugabe was speaking about the future relationship between white and black citizens of his country.He wanted, he said, to draw a line through the past - a past of colonialism in general and of theliberation war of the 1970s in particular. He put much less emphasis on the question of reconciliationwithin the black community where two groups had fought bitter conflicts, both in the far past and asrivals in the liberation movement. This second conflict is based on three interrelated divisions: Ethnic -- majority Shona versus minority Ndebele. Regional -- North and South Matabeleland (predominantly Ndebele country), versus most of theother regions. Political -- diverging visions of how to build the country after independence.The two dimensions of post-colonial inter-communal relationships - white-black and inter-black have taken different courses. After a brief honeymoon period the officially declared reconciliationbetween the black and the white population has turned sour. In recent statements Mugabe hasdeclared the Politics of Reconciliation completely dead. Within the black population reconciliationhas remained, at best, politically motivated coexistence, all too regularly interrupted by violent confrontations.This case study poses the following questions: Why did the relations between the (heirs of ) the white settlers and the black Zimbabweans notbecome the success story they initially promised to be? What factors are responsible for the lack of inter-black reconciliation?The Failure of White-Black ReconciliationSince the late 1990s relations between the Mugabe government and the ruling Zimbabwe AfricanNational Union-Patriotic Front (ZANU-PF) on the one hand, and most of the white citizens onthe other, have sunk to their lowest point since the coming of independence. The compulsory, oftenaggressive, government acquisition of white commercial farms is its most visible sign. It is clearenough that ZANU-PFs partisan and electoral strategies are a crucial factor in current developments.34
The issue of land reform - giving the black population back the resources that were theirs before thewhite settlers came - is a crucial tool in the process of staying in power. But other, less recent, aspectsof the Politics of Reconciliation are at least as important. This policy was from the very beginningbuilt on sand: it was almost exclusively based on political and economic imperatives, weakened bythe triple culture of amnesia, impunity and contentment (or easy satisfaction), and imposed fromabove.
ContentmentThe white population gratefully believed Mugabes promise in April 1980 of reconciliation. Thatthere was no enforced redistribution of land in the first decade after independence was the ultimateproof to them of his reliability. Observers have noted that this belief lulled many Rhodesians intoa false sense of economic security. The maintenance of their pre-independence privileges was seenas absolutely normal. Prejudices and the destructive social relations they generated were kept alive.Explicit acceptance of responsibility for the past and for the future was an exception, not the rule.This culture of contentment led to the persistence of serious economic and social inequality, mostvisible in the skewed distribution of land and in the wealth that is so obvious in the white suburbsof cities like Harare.Reconciliation Imposed from AboveThe various parties in the negotiations that led to Zimbabwes independence imposed the Politics ofReconciliation on the black population. It was a project conceived and developed at the level of theelite. There was no society-wide debate or involvement. Victims and survivors were not consulted,but rather watched powerlessly as many perpetrators of human rights violations went unpunishedand even took on key roles within the Zimbabwean Army and secret services. As a consequence theneed to forgive and forget was not internalized by the general public. Such unaddressed resentmentexplains in part why Mugabes actual economic revolution, aimed primarily at taking over whitecommercial farms, attracts a popular following. Imposed reconciliation fed, rather than eased, theunresolved grudges.The Failure of Inter-Black ReconciliationHistorians disagree about the origins of the antagonism between the Shona and the Ndebele. Somehave argued that it goes back to the arrival of the Ndebele in what is now Matabeleland somewhere inthe mid-nineteenth century. The Ndebele were feared because of their raids on Shona villages. Someobservers also point to the deliberate fostering of their rivalry by the white settlers as an instrument ofdivide and rule. Others believe that these ethnic identities were created more recently in the processthat deepened the political and regional divides in the liberation movement of the 1960s.In 1963, controversies led to a split within Joshua Nkomos Zimbabwe African Peoples Union (ZAPU),then the main movement. A rival group, the Zimbabwe African National Union (ZANU), was set up byNdabaningi Sithole. Robert Mugabe became its leader in 1966. Initially the split was not based on ethnicor regional differences or composition, but gradually it became significantly tribal in nature becauseZANU and ZAPU campaigned and recruited in different areas - ZAPU mainly in Matabeleland, ZANUin the Shona-populated areas. The rift deepened into serious conflict between the armed wings of thetwo movements - the Zimbabwe Peoples Revolutionary Army (ZIPRA) linked with ZAPU whilst theZimbabwe African National Liberation Army (ZANLA) was the armed wing of ZANU. ZIPRA andZANLA differed in outlook, training and ideology: the former was Russian-trained, the latter Chinesetrained. Fighting between them occurred in training camps in Mozambique and Zambia, in certaincombat zones and, shortly after independence, in the assembly points for former guerrillas.37
the political utility of immunity was underlined and surfaced in the form of the repeated use of theexecutives power of pardon and ad hoc clemency orders. Furthermore, the ZANU-PF governmentalso retained, and has reinforced, most elements of the previous state of emergency (giving it, amongothers, the power to detain without trial).
Concluding RemarksA stable democracy in Zimbabwe will remain a distant dream as long as the sad legacy of violenceand discrimination against an ethnic/regional minority is not dealt with in a genuine and thoroughprocess of reconciliation. This will need to be historically all-encompassing and deal with issues ofjustice across a range of political, social and economic acts, involving not only the communities andraces in Zimbabwe, but also the global and colonial actors implicated in this drama over the pastcentury.There were, no doubt, very good reasons to avoid explicit retributive justice in the Zimbabwe ofthe early 1980s. However, other less menacing strategies were available to the new elites: a fair degreeof truth-seeking, forms of restorative justice, reparation of the damage inflicted to the victims, and thefight against economic inequality. The white heirs of the Rhodesian regime and the black leaders preferred to impose a shallow, cheap form of reconciliation without historical, restorative or economicjustice. Cheap, imposed and based (for whatever pragmatic reasons) on amnesia and impunity - insuch a form, reconciliation can only damage fundamentally the prospect of a viable, peaceful andinclusive Zimbabwean democracy.
Midlands, but increasingly also against the disloyal urban-dwellers in central Mashonaland whovoted against ZANU-PF.
Each context, like each country or each conflict, is different. In the immediate aftermath of asettlement after violent conflict - during the transition from violence to peace - there is usuallya unique set of factors present that together affect the ease with which the necessary but painfulissue of reconciliation can be tackled. In some cases they can produce dilemmas over apparentlyconflicting goals; in others they may ease the path to reconciliation. It is impossible to list themall, precisely because they depend on the specific context. However, we can suggest the themes thatgenerate such factors. We examine some of these now.3.1 The Legacy of the PastOne obvious set of key factors that affect the business of devising an effective reconciliation processderives from the history of the conflict and the history of relations between the divided communities.This does not only relate to what actually happened in the past (the history); equally important arepeoples perceptions of what happened in the past (the mythology).There will always be what may be termed historical, objective issues (for example, who killedwhom, who ruled unjustly, who organized human rights violations). But there will also be subjectiveperceptions, beliefs, mythologies and interpretations of that history - why someone acted as he orshe did - which may or may not reflect actual events but will significantly shape peoples readiness orroom for manoeuvre in the present. Historical accuracy is always to be pursued. But the mythologiesthat we all build over our histories - our heroes and martyrs, our hate-figures and villains, our gloriousvictories and our proud suffering - are often as important. It is necessary to understand the past, andalso to understand how people interpret their past. Often it is their beliefs about what happened, asmuch as what actually did happen, that will render the history more or less amenable to a reconciliation process. If there are opposing histories, opposing truths, then they too must be recognized andreconciled.Other issues from the past will also have an effect on attemptsIt is necessary to understandto heal the current division. Have the alienated groups coexthe past, and also to underisted peacefully before? Were they initially one people beforestand how people interpret theirpast.divisions set in, or have they always considered themselvesas separate entities? Have there been previous reconciliationefforts? If so, what has their effect been? In particular, how well is their failure understood and inwhat ways can it inform the design of a better process this time around?3.1.1 Longer-Term HistoryThe past has many layers. This fact needs to be acknowledged before addressing the past through areconciliation process. Many violent conflicts and wars are not simply the outcome of one particularset of recent circumstances which led to violence. For example, reconciliation processes in LatinAmerica often focus quite naturally on the violence of a particular military regime, but a full understanding of many of those conflicts also requires an investigation of the much longer history of thetreatment of indigenous people at the hands of settler cultures. In Croatia, the focus of reconciliation40
is on the violence of the war in the 1990s, but no reconciliation process could function properlywithout the understanding that there is a long history of violent episodes between the opposing sides,and that the oppressor side at one stage has also been the oppressed at other times. The same appliesin Rwanda and Burundi, where the tables have been turned more than once over time, so that thevictims of one outburst of violence have become the perpetrators of the next.This clearly raises the question of the period of time the reconciliation process should cover. Doesit refer only to the latest outbreak of civil war or violence? If it does, will that leave unresolved theatrocities committed at another time by another group? How far back in history should a reconciliation process reach? Is living memory the realistic limit? Or can, and should, amends be made forhistoric wrongs? There are no easy answers, and it is not the aim of this Handbook to prescribe neatresponses. Our message, rather, is simply that such complexity must be thought through and resolvedas well as possible, even if there are apparently logical arguments for reducing the problem to the leastcomplex form, which seems most amenable to a solution. A realistic balance must be struck that takesinto account all the conflicting claims on justice, all the differing demands for truth, and all the painand suffering that may arise from the many layers of a complex social history.More global factors may impact as well. For example, in some regions, especially in Africa, thepre-independence history of a country will have a vital role to play in explaining the dynamics ofpost-colonial conflict. In many situations the cold war will have been a factor. While the greater,global agenda of EastWest ideology inflamed many violent conflicts, it also acted as a fire-blanketon others, keeping them on hold so that those involved were released only in the 1990s to continuetheir struggle on their own terms.Conflict analysis is always complex and wide-ranging, and the analysis that underpins the reconciliation process must be no less nuanced and extensive.3.1.2 The Nature, Scale and Degree of Past ViolenceThe intensity of the violence that has taken place directly affects the depth of response of thoseinvolved, and partly defines the scale of the problem to be addressed.Without for a moment belittling the suffering of the victims of the conflict in Northern Ireland,the intensity of violence there (around 3,000 dead in around 30 years) is clearly different from that ofthe 1994 Rwandan genocide (about 1,000,000 dead in about 100 days). At the individual level thereis little effective difference between the pain of a grieving family in Belfast and that of one in Kigali.Nonetheless, the effect of the intensity of the violence on Rwandan society is far more profound. Inparticular, this may dictate the degree of optimism or pessimism within a society when it looks at thechallenge of reconciliation. Not only has the violence affected a far broader spectrum of the society ina direct way, because of its scale: additionally, at the communal level the wounds appear much deeper,the trauma and emotions involved much more profound. The worst strategy in such a case is to tryto underestimate the size of the challenge. A wounded society cannot afford to underplay its tragedyand apply ineffectual remedies any more than it can afford to be overwhelmed by the trauma it hassuffered.The intensity of the previous violence may make the challenge appear even greater; but it alsoserves to increase the pressure for a process that will guarantee that there is no repetition. This mayserve usefully to focus minds and commitment on the need for reconciliation. At the same time italso produces pressures and a great urgency to move fast: yet reconciliation, as we repeatedly pointout in this Handbook, cannot be rushed.One important consequence of intense and/or sustained violence will be the extent of the damage41
to a countrys infrastructure, and in particular economic destruction. Logistical and resource capacities for implementing reconciliation (or any other) initiatives will depend on the economic state ofthe country, both present and projected. Planning must therefore be realistic in terms of what isfeasible and deliverable.3.1.3 The Depth of Division in SocietyThe depth of the divisions in a society will obviously dictate significantly how amenable it is to ahealing process of reconciliation. Those divisions will be deepened, clearly, by prolonged and intenseviolence, but this may also be a matter of time.The reconciliation process involves a society in questioning the confrontational attitudes and beliefsthat have sustained it during conflict. The longer those attitudes have survived intact, the more resistant they will be to change. Northern Ireland was mentionedabove as a conflict in which the intensity of violence wasThe longer confrontational attitudes have survived, the morecomparatively low; but the two communities who are curresistant they will be to change.rently striving to live together in Northern Ireland have beenstruggling to do so in the same territory for almost 400 years.Even if the violence has usually remained at what one British military officer once cynically termedan acceptable level, the sheer longevity of the conflict has entrenched deep and widespread attitudesand beliefs about ones own community and the other - indeed, complete mythologies and histories which are now presenting great challenges to the process of building a cooperative social and politicalframework.3.2 The Transition3.2.1 Types of TransitionA previously all-powerful regime (for example, a long-standing dictatorship) will have been both ableto use and quite possibly enthusiastic in using state violence to perpetuate itself. This increases theamount of hurt caused to the opposition, and thus the amount of trauma to be dealt with throughreconciliation. But it also in a way simplifies the direction of the reconciliation dialogue: most of thehurt to be addressed will have flowed in one direction - from the regime to the population and theopposition - and it will be much easier to identify, and differentiate between, offenders and victims.Likewise, when such an all-powerful regime decides itself to dismantle the old order, its motivation toadmit past wrongs may be greater and/or the degree of forgiveness from the oppressed may be greatergiven that an expression of guilt is implicit in the regimes self-dismantling.In contrast, when both sides work in partnership to produce the transition - as was the case inSouth Africa - the potential for a similar partnership in the reconciliation process is greatest.However, if a negotiated settlement arises, as it often does, from a stalemate after sustained violentstruggle, the complexity of wrongs suffered and committed by both sides and the consequent difficulty of differentiating victims from offenders may be much greater. A system where a regime dealtwith dissent by the summary killing of dissenters is appalling but at least straightforward. A systemwhere state violence (characterized by its victims as oppression) and rebel violence (interpretedby its victims as terrorism) have intertwined over an extended time is much less clear. Guilt andculpability rest on both sides, albeit possibly to different extents. This, indeed, is the norm in thetransitional phase.One of the most determining factors of post-conflict reconciliation is the balance of power betweenthe previous regime and its successor at the point of the transition. At least three different typical42
scenarios present themselves. Each will produce significantly and structurally different types of reconciliation processes: Where a formerly oppressive regime has been violently and completely overthrown, or where a civilwar has ended through a decisive military victory for one side (for example, the end of the Mengisturegime in Ethiopia in 1991). Where transition arrives at the initiative of reformers within the previous regime and those in powertake the initiative and play the decisive role in ending the regime (for example, the former SovietUnion). Where transition may result from joint action, including the negotiation of a settlement, betweenthe former government and opposition groups. The forces of the previous regime have not lost allpower; nor have the former insurgents gained absolute control. Instead, in the new context, everyaspect of life must be negotiated between them (for example, South Africa and many Latin Americancountries).Each of these types of transition will facilitate a reconciliation process to a different degree. Each willproduce a different way of dealing with the legacy of the past. The first scenario - the overthrow ofan oppressive regime - may more strongly encourage punitive structures for retributive justice (seechapter 7). The second, reform from within, may encourage self-protecting moves towards amnesty(again, see chapter 7). The third, a negotiated peace, may open up the possibility of a process designedthrough negotiation between equals. In this case, though, one side may pursue amnesty for its members and supporters as the price of its agreement to support coexistence while the other is pursuingjustice and punishment as the price of its support. Lacking absolute control, neither side will achieveits goal in this. What is important is that the negotiated compromise on justice facilitates, or at leastdoes not obstruct, the even deeper process of long-term reconciliation. If such a negotiation simplygives the victory to one side, the lingering resentments, however deeply they appear to be buried, willalmost certainly come back to haunt and hinder reconciliation at a later stage - and ultimately thatpath leads back to conflict and to renewed violence.Finally, if the transition produces a new, all-powerful regime, this will affect the reconciliationprocess too. On the one hand, the new state may find that it has great power to insist on reconciliation and to implement it by forcing the old powers to accept judicial punishment for their acts.On the other hand, such a one-sided process may simply stoke the former powers perception thatthey have now become the victims - which will almost certainly guarantee problems of unreconciledresentments further down the road.3.2.2 The Nature of the Peace SettlementClearly, the nature of the settlement reached by the conflicting sides dictates both the shape of thetransitional arrangements and, to some degree, the future shape of the social and political order.Naturally, then, it has consequences for the reconciliation process.Assuming, as this Handbook does, that the settlement consists of democratic structures designedto produce inclusive and fair governance, how will that improve the context for reconciliation? Forexample, a simple easing of the previously prevailing atmosphere of fear and distrust may be enoughto enable victims to trust the new context and thus to speak out more confidently and with moretolerance of past acts. On the other hand, a new economic order which discriminates against one sidein its share in the new hoped-for prosperity will have the opposite effect.Where possible, it is important that the negotiators of the settlement recognize in advance the43
need (a) to address the issues of reconciliation in constructing the agreement, (b) to make sure thatappropriate and meaningful reconciliation processes, formal or informal, are devised, and (c) toensure that the necessary resources for those processes are available. To do otherwise, as noted earlierin this chapter, is to store up trouble in the form of a continuing dysfunctional relationship betweenthe communities that will potentially undermine even the very best of democratic settlements.3.3 The Post-Transition ContextIn the first years after a transition, post-conflict societies usually have to operate in an unstableenvironment, trying desperately to grapple with the issues arising from the violence and from thesettlement, while giving the fragile new democratic structures time to bed down into normality. Thisis the critical time for developing the habits of coexistence, for building the legitimacy of the newregime on its record of action and achievement, and for dealing with the general expectations of thenew dispensation. It is the time when previous promises are measured by subsequent actions.Most new dispensations have as their aim simply to uphold a minimal degree of peaceful coexistence during this critical period. More positive relationship-building will hopefully develop with time,but just the negative peace of an absence of overt violence between the previously warring communities may well be enough to hope for. It is also the minimally fertile ground in which the fragilereconciliation process, having been planted, must now be nurtured and maintained.The various contextual factors working to enable or restrict this fragile growth do not only dependon the pre-transition period and the ingredients of the settlement and the transition discussed above.There are other factors which have much more to do with the current context than with any legacyfrom history. Some of these are reviewed below. Some work to enable reconciliation, some to constrain it, and some can work with either or both effects depending on the timing and/or the context.This Handbook can offer no definitive list, but examples of the kind of themes involved can be given.Some have an obvious relation to reconciliation. The relevance of others may be less apparent butthey must be considered nonetheless, if only briefly, in process design.3.3.1 Cross-Cutting InterestsSometimes it is possible for conflicting sides to come together to support something of equal importance to both of them - a transcendent nationality, for example, such as adherence to the Soviet Uniondespite local differences. Segments of the Ethiopian population have drawn together as nationalistEthiopians, despite their differences, to support the national war against Eritrea. Often people maycome together in solidarity against an external threat: it is as easy to see Ethiopian nationalism simplyas a logical response of pooling resources and following common interests when faced with the threatfrom Eritrea.Realistically, though, such factors are fairly rare and, when they do appear, somewhat transitory.They are the result of chance and fortune, rather than strategies on which to base action. Indeed, theyare a favourite, if obvious, tactic of desperate or unpopular leaders, who see fear of the external enemyas a way to quell internal unrest. Nevertheless, they can have an influence on the post-transitioncontext.What is much more typical of divided societies, and can be very effectively utilized in facilitating areconciliation process, is the existence of the same self-interests among sub-groups on each side of thedivide. Such interests can be developed, with care, into a basis for cross-community cooperation. Asociety that is at war usually sees every aspect of itself through the particular lens of the issue that hascaused the conflict: ethnicity, for example, often becomes the single defining issue that places each44
person on one or other side of the war. No middle ground is permitted. But often there are otherinterests which, if allowed to have influence, would divide the society along different lines, moderatethat all-powerful divide and develop that middle ground. In the fragile post-conflict peace, theseissues begin to exert, or re-exert, their influence, and to encourage other non-traditional groupingsamong the population that will ignore, say, ethnic cleavages and concentrate on others based on class,gender, religion, economic interests or the rural-urban divide.Women from both sides in a war may have very good reasonSelf-interests that cut acrossto join together the better to pursue their demands for an equalthe divide can be very effective in facilitating a reconciliashare of social power with men. Labour groupings may find ittion process.much more effective to pursue their interests in combination,so forming a more significant pressure group in society, thanto do so as two divided camps. Business and industrial interests may be better served by a larger,combined market, by complementing each others human, financial and natural resources. Wherepoverty affects people on both sides of the conflict, the poor can increase their resources by joiningtogether to fight for more equitable resource sharing. There may be common religious or linguisticlinks that can act as bonds to bring people together across the original divide.All these and many more such potential areas of cooperation tend to appear as delicate shoots in thetransition period, and nurturing them can generate a subtle but significant momentum away fromthe simplistic, binary division that has fuelled the violence along one dimension in the past. Whenthey are nurtured, they add a complexity to social life that makes it more difficult to return to thethem-and-us rivalry of the war. And of course, in the process of such reaching out across the divide,these developing patterns of cooperation lead to the forming of real cross-community relationships.It is those new relationships which lie at the heart of lasting reconciliation.3.3.2 The International ContextWere neighbouring or other countries or regions involved in the conflict? And will they need ordemand involvement in the reconciliation process?They may greatly complicate the design of the process, and/or they may be able to contributeresources to it. It must be admitted that where third-party states have had a long-term engagementin a conflict it has usually been to negative effect, for example, the role of the USA in sustaining andsupporting violence in many Latin American contexts and in some cases obstructing peacemakingand reconciliation initiatives there also. On the other hand, powerful outside states may, throughtheir self-interest in the region or the country, have the potential to add greatly to peacemaking andreconciliation: the supporting role of the US White House and Irish-Americans in developing thepeace settlement in Northern Ireland in 1998 is an example.There is also a regional dimension to most conflicts, so that regional actors may have to be a part ofthe reconciliation process. One example is Central Africa: not only is reconciliation in Burundi greatlyinfluenced by events in Rwanda and the eastern Democratic Republic of the Congo, but regionalAfrican institutions, intergovernmental or non-governmental, can significantly help or hinder reconciliation initiatives.The international community in the wider sense has the potential to contribute in two ways.First, it is a potential source of information, expertise and training on reconciliation - this Handbook,for example, is an attempt to gather advice, experience and good practice from many contexts aroundthe world for use in handling specific problems. Second, the slow but inexorable development ofinternational humanitarian and human rights law is having a growing effect by setting and supporting45
standards in the shape of an international legal order, and forming a supportive external consensus onissues such as impunity for serious human rights violations,the right to truth, the unacceptability of certain crimes andPowerful outside states havethe need to bring perpetrators to justice irrespective of wherethe potential to add greatly totheir crimes were committed. (Chapter 10 reviews in morepeacemaking and reconciliation.detail the potential role of the international community.)3.3.3 CultureThe way in which a community deals with a violent past is intimately linked to its more generalcustoms and culture. One key element is the way in which the culture influences the system of collective memory. Some societies embody a natural urge to forgive the injustices inflicted on them inthe past; others display a strong aversion to letting bygones be bygones.Ali Mazrui cites several examples of an African tendency to forgiveness: Jomo Kenyatta, independent Kenyas first leader, became one of the countrys most enthusiastic Anglophiles despite his years ofimprisonment by the British; there was no acrimony in Nigeria at the end of the Biafran civil war; IanSmith, the leader of Southern Rhodesias white breakaway movement, entered the new parliament ofZimbabwe. Archbishop Desmond Tutu has considered this culture of forgiveness extensively. Whatis it, he writes, that constrained so many to choose to forgive rather than to demand retribution?His answer is what Africans know as ubuntu in the Nguni group of languages (or botho in the Sotholanguages). It is a difficult concept to render in a Western language. Tutu says that a person withthe African world-view of ubuntu is open and available to others, for he or she has a proper selfassurance that comes from knowing that he or she belongs in a greater whole and is diminished whenothers are humiliated or diminished. Such a cultural outlook, the argument runs, will predispose itsmembers towards forgiveness and reconciliation.But opposed to such cultural beliefs are others - for example, in Albania - which prize revenge andhonour above forgiveness.Since cultures provide the atmosphere in which social systems work, they can be powerful forcesto help or to hinder the reconciliation process. It is necessary to be culturally sensitive, and to designor adapt the reconciliation process accordingly. Since reconciliation cannot be imposed from outsideand must flourish or fail depending on how far the people in a society are able to embrace it asmeaningful and in their interests, then it must be culturally appropriate. However, culture neversupercedes the need for a reconciliation process: all the pragmatic arguments for the necessity of areconciliation process to develop the relationships that will underpin a healthy new regime still apply,whatever the cultural context.One increasingly acknowledged role that culture can play is to act as a rich resource for findinghome-grown tools to use in the reconciliation process. Most cultures have developed, within theirnorms and customs, methods for dealing with conflict in various shapes and forms. There is still atendency, especially among Western or Northern interveners, to export conflict management mechanisms from the developed world and try to impose them in novel contexts - Western models ofmediation, for example, or Western justice mechanisms. One of many reasons for the subsequentfailure of such exports is that the models are rarely culturally appropriate to the context - they donot fit the situation and are thus seen by the recipients as alien, irrelevant and imposed from outside.More and more, people are looking within their existing cultures and finding models and mechanismsthat can be adapted or adopted to suit a home-grown reconciliation process.The Rwandan gacaca tribunals process is a modernized form of a very traditional justice mecha46
nism (see the case study following chapter 7). One of the great strengths of the gacaca system isprecisely that it includes a healing element, so that it can serve reconciliation at the same time as itserves justice. Another strength is that it is culturally familiar to Rwandans. However, the RwandanGovernment has come in for considerable international criticism for implementing gacaca preciselybecause it contradicts some of the norms of international (and especially Western) legal models.Other examples of home-grown healing and reparation tools include cleansing rituals in Sierra Leoneand healing circles among Native Americans. Examples of home-grown justice and decision-makingtools include the Afghan loya jirga; the joking relationship between tribes in Burkina Faso; andso on.This trend of looking within for tools and solutions, rather than looking outside for ready-made answers, is a new andDecision-makers should beencouraged to examine theirdeveloping one. Whatever the country or the culture, deciown cultural resources before,sion-makers should be encouraged to examine their own culor at least as well as, lookingtural resources before, or at least as well as, looking for outsidefor outside help.help. (Chapter 7 discusses various home-grown and indigenousmethods of achieving restorative justice.)3.3.4 GeographyLess obvious factors can have powerful effects. Sometimes ethnic differences are broadly reflected ingeographical location, for instance, in the physical separation of the Yoruba and the Ibo to specificparts of Nigeria. Elsewhere, as in Northern Ireland, two communities may be living closely interlinked in the same space.It is difficult to generalize about the effect of geography on conflict, except to say that either situation can work positively or negatively in creating the space for reconciliation, and so must be takeninto account when planning for a reconciliation process. Geographical separation can make it easierto coexist, or that very distance can make it more difficult togenerate the interaction that could lead to cooperative relaIt is virtually impossible for peotionship-building. On the one hand, good fences make goodple to challenge their negativeimages and stereotypes of aneighbours. On the other hand, it is virtually impossible forformer enemy if they do notpeople to challenge their negative images and stereotypes of aencounter them as a humanformer enemy in order to engender better understanding and areality.minimum of respect if they do not encounter them as a humanreality.3.4 Concluding RemarksA great many factors must be considered in the delicate work of designing and implementing themost appropriate reconciliation process for a particular context. Pressures for quick results must beresisted, since quick results will only scratch the surface and, while bringing temporarily the appearance of a reconciled society, will leave underlying resentments or emotions unaddressed and fail toaddress the relationship-building that is the basis of real reconciliation. Equally, however, too subtleor too invisible a process will discourage people from seeing progress and will breed scepticism.This chapter has tried to give a sense of the kinds of issue that must be considered and to instil theimportance of reviewing all relevant factors, including, and especially, the difficult ones. The presenceof some or all of the positive, enabling factors will not guarantee success, any more than their absencewill guarantee failure. And while there will always be negative, constraining factors, these must not47
be used as excuses for inaction when in fact what is missing is the political will to grasp the nettleof reconciliation.Despite all the pressures and logical temptations, the other agendas and pressing needs, the worstdecision is to postpone addressing the difficult issues - the pain, the guilt, the emotions - in anattempt to preserve stability and peace. The right time to deal with these matters never comes: theyonly become more difficult to deal with as time passes. Ignoring the divisive issues will only producefrustration and cynicism about the new dispensation, especially among those who see themselves asthe victims of past violence, and who may initially be the new regimes strongest supporters.
Historical Factors
For almost three decades of Cambodias recent history, its people suffered ongoing wars and socialupheaval. The period began in 1970 when General Lon Nols Republican forces ousted then PrinceNorodom Sihanouk. Since then, Cambodians have lived under a variety of political regimes asthe country changed from a monarchy to a capitalist republic, to a communist republic, to asocialist republic and then to the current constitutional monarchy. The most traumatic years ofthis period were undoubtedly those of the Killing Fields from 1975 to 1979, when the KhmerRouge established what they called Democratic Kampuchea and attempted to transform all aspectsof society totally. In this endeavour, acts of unspeakable barbarism were committed against thepeople: out of an estimated population of eight million, some five million were displaced. Mostscholars place the number of dead from murder, torture, disease and starvation at around 1.7million. Unlike other experiences of genocide, where race or religion were key factors, the KhmerRouge drew their lines in terms of social class: the killing and horror took place amongstCambodians, a largely homogenous ethnic, linguistic, religious and cultural grouping. The violence occurred as Pol Pot and his followers sought to abolish utterly the existing culture andreplace it with a newly invented one, which combined Maoist principles with mythical ideals of anAngkorean past. In so doing, they destroyed all the institutions of state - the education, financialand legal systems - as well as religious and other social institutions.Prior to this Norodom Sihanouk had worked hard to steer a neutral path for the post-colonialnation, but the conflict was largely driven by cold war relations and the worlds then superpowers wereimplicated in it. While local factors had been crucial in bringing the Khmer Rouge to power, Chinawas Democratic Kampucheas main supporter. Later the USSR financed Democratic KampucheasVietnamese-backed opponents, while China, the USA and other Western and Association of SouthEast Asian Nations (ASEAN) powers provided support to the Khmer Rouge and two royalist antiVietnamese factions.In December 1978 the Vietnamese Army entered Cambodia and, together with a group of KhmerRouge defectors, mounted a decisive military campaign against Democratic Kampuchea forces, whichresulted in a new Vietnamese-sponsored government being declared in January 1979. A mistrustof further socialist experimentation, along with deep-seated historical suspicion of Vietnamese intentions towards Cambodia, undermined support for the new regime. The conflict continued during the1980s, as Khmer Rouge forces formed an alliance with the two royalist factions to drive out whatthey characterized as foreign control of Cambodian political and civil life. But, as the cold war drewto a close, international support for all four warring factions dried up. In the face of this lack ofresources, and exhausted by years of conflict, all parties found the idea of a political settlement moreappealing.Although a political solution was probably the only acceptable way out of the deadlock, using thismethod to decide the war raised the political stakes very high. Not only did the Cambodian parties
need to agree: so did all the international players who had involved themselves in one way or another.The stage was set for a lengthy and highly politicized peace process.The Peace Agreements and the Politicization of Reconciliation ProcessesThe Paris Peace Agreements of October 1991 were meant to end the war in Cambodia. They weresigned by 18 countries and the Cambodian parties, and were based on a framework agreementreached by the five permanent members of the UN Security Council the previous year. Within theagreements, the extent of the tragedy was formally recognized and respect for human rights enshrined.In their detail, however, they focused mainly on political issues related to the cessation of hostilities,the provision for national elections and the rehabilitation and reconstruction of Cambodia.It seems that reconciliation was considered synonymous with the involvement of the four factionsin a free and fair election. For the Cambodian people at that time, however, reconciliation was largelyequated with the cessation of hostilities and the return of refugees. More complex questions of justiceand reintegration were yet to become apparent.Ironically, by proposing elections as the solution to the conflict, the Paris Peace Agreements hadensured that reconciliation was closely linked with a political contest that no party was prepared tolose. The three anti-Vietnamese resistance forces returned to Phnom Penh in preparation for the 1993multiparty elections; but the Khmer Rouge ultimately withdrew from the electoral contest, whichmeant that the election process could only ever deliver a partial solution at best.Peace was finally secured following a series of defections after 1993. These began with KhmerRouge Foreign Minister Ieng Sary in 1996 and then, following the death of Pol Pot in 1998, otherhigh-ranking Khmer Rouge cadres rallied to the government. The defectors were allowed to resettlein and around the semi-autonomous zone of Pailin, a gem- and timber-rich area near the Thai border.(The infamous Ta Mok, known as the Khmer Rouge Butcher for his cruelty, was captured, as wasDuch, known for his role as the S-21 Prison Torturer. Both are now in prison awaiting trial for crimesagainst humanity while in power.)The strong links between party politics and the peace process persist to this day. The CambodianPeoples Party (CPP), the successor to the Vietnamese-backed regime, is still able to capitalize on itsvictory over the Khmer Rouge in current political campaigning, promoting itself as the liberator andpatron of Cambodian society to whom the people remain indebted. In this way, issues of security andstability have also become politicized.The Khmer Rouge TribunalCurrently, the main focus of reconciliation efforts is the ongoing issue of the creation of anExtraordinary Chamber of the Criminal Courts of Cambodia. The UNCambodian Khmer RougeTribunal, as it is more popularly known, would seek to try key surviving high-ranking members ofthe Democratic Kampuchea regime.In securing the defection of Ieng Sary and many others, a number of political deals were struckbetween the government and the former Khmer Rouge. Most notably, an amnesty was granted toIeng Sary for a death sentence imposed under a widely discredited Vietnamese-convened war crimestribunal held in August 1979. Whether he and others who formally defected will be tried underthe new tribunal remains to be determined, and there are concerns that key figures will be shieldedfrom prosecution by the mutually beneficial arrangements reached between the former Khmer Rougeand the CPP. Again, the pattern of partisan interests determining peace and reconciliation processesbecomes apparent.50
The Center for Social Development (CSD) is an NGO in Phnom Penh which holds regular publicforums on issues of national concern. In early 2000, the Center decided to hold a three-part series ofdebates to consider whether a trial of the former Democratic Kampuchea leaders should be held. Atthese forums, all sides, including the former Khmer Rouge, stated the need for truth, justice, healingand national reconciliation. Yet it was clear that there are widely different views on what these termsmight mean in practical terms.Each party has its own version of what happened: there is the truth according to the Khmer Rouge,the government, the international community and ordinary Cambodians. If a reconciliation processis to move forward and be seen to be trustworthy, each of these truths must be accommodated tothe satisfaction of all parties. From the discussions it was also clear that a tribunal is only one partof a comprehensive process of reconciliation. In addition, there were almost no calls for reparation. Itseemed that this was too abstract a concept to consider when the truth is not yet even known. Mostpeople simply wish to be free of their suffering and return to the family life that was so cruelly interrupted through the refugee experience and policies of forced displacement. For them, real reconciliation will be found when trust returns between individuals: when they can smile at and trust eachother again.The answer therefore relies on finding a vehicle for addressing these issues at a personal level, andin a manner consistent with the foundations of Khmer culture. One potential path for finding thisreconciliation is that of the national religion, Buddhism, to which at least 90 per cent of Cambodiansare said to subscribe and which has a powerful influence in daily life. Buddhism has at its heartmessages of compassion and reconciliation.
devout and manage to use religion to justify opposing positions. To avoid politicization Yos HutKhemacaro advocates following the Middle Path, the traditional metaphor for the Buddhist way- neither joining the fight nor hiding from it. The Middle Path of non-violence and compassion provides a model for solving undoubtedly political problems outside the adversarial framework implicitin partisanship. As these ideas arise from traditional Khmer concepts, they can help the Cambodianpeople to find their own peace instead of feeling that their problems can only be solved by outsiders.Local InitiativesThe accumulated history of oppression, repression and ongoing trauma has had a profound, continuing effect. In responding to these, a range of very different organizations has been working on avariety of strategies that are an important part of Cambodian reconciliation and provide a usefulcomplement to more formal processes.Most closely linked to the question of the Khmer Rouge trial is the project of the DocumentationCenter of Cambodia. Originating in an academic programme of Yale University, USA, this nowindependent Cambodian-run centre serves as a permanent resource for providing information aboutthe Khmer Rouge, both in order to support potential litigants and to prevent such a tragedy happening in the future. Its mission is perhaps best summed up in the title of its regular publication,Searching for the Truth. By stressing the importance of the truth above all else, this project has chosenthe non-partisan Middle Path in dealing with these extremely sensitive issues.Even as we move away from the fields of politics and history, we can see the continuing effectsof the Killing Fields period in Cambodian daily life. There is a high prevalence of mental illness,including many chronic cases, which has reduced the ability of many people to cope with everydayproblems. As children grow up with mentally ill parents, they are far more likely to become depressedand abusive themselves, creating a vicious cycle with consequent social implications. Until now,ordinary people have relied on their understanding of the law of karma and their instinct for survivalas their means of healing, but many of these problems have undoubtedly been made worse by the lackof adequate treatment services or facilities. This problem has been acknowledged, and Cambodiansare learning to deal with the question of mental illness in more constructive and healing ways. Thework being done by some health sector organizations and emergent psychiatric facilities is anotherimportant step forward in facing up to the past.Concluding RemarksThe messages of non-partisanship in reconciliation are fundamental to the proper practice ofBuddhism. It is this type of leadership that is required of Cambodias politicians, if they and thepopulation are to move beyond their painful past. Cambodians need to overcome the deep-seatedmistrust of, and animosity towards, each other that arose as the consequence of the Khmer Rougeand their aftermath. Open discussion, improvement in social justice and human rights, educationand health care for all - these are all fundamental to a step-by-step process of building mutual trustand understanding.There are many elements to this overall process of national reconciliation. The Paris PeaceAgreements were one step and the proposed tribunal will be another. Negotiations over the runningof the tribunal broke down in February 2002 because of what the UN saw as the failure of the currentproposal to address concerns over potential political interference by the Cambodian Government. Atthe time of writing, it seems that this process is tentatively restarting. It is hoped that the key issuescan be tackled and that the process will regain momentum. A tribunal is important as it will uncover52
the truth and thus educate people about the past, provide justice for the victims, and promote thereturn of the rule of law to Cambodia. There must also be a role for ordinary people to play inreaching reconciliation at the level of everyday life, where old wounds are still deeply felt. The forumswere a step, as are the other grass-roots programmes described here. Above all, these steps should betaken along the Middle Path, in full consultation with the Cambodian people.
Victimslu c h u yse
Violent conflict creates all sorts of victims: those killed and tortured, those bereaved and maimed,those assaulted and raped, those injured in battle and by mines, those abducted and detained,the banned and the homeless, those intimidated and humiliated. This chapter aims to clarify thefactors and processes that lead to their identification (section 4.2) and mobilization (section 4.3).Starting with a presentation of the various types of victim (section 4.1), the chapter concludes witha discussion of cases where all rival groups have committed atrocities and where it is consequentlyimpossible to draw a sharp line between victims and perpetrators (section 4.4).4.1 The Many Faces of VictimsVictims are at the heart of all dimensions of the reconciliation process in societies emerging fromyears of violent conflict. It is crucially important that policy makers and civil society leaders areaware of the many faces of victimhood. This awareness must guide the search for adequate victimprogrammes, even if the means are insufficient to deal with all those who suffer - individually and/orcollectively, directly or indirectly, today or in the future. There has to be a broad public debate aboutwhich individuals and communities should be acknowledged as victims. Such civic debate shouldideally add to the development of guiding principles for all healing, truth-telling and reparationwork.Victims can be classified on the basis of three broad distincThere has to be a broad publictions. Two of these, individual/collective and direct/indirect,debate about which individualsand communities should beare constitutive parts of the various definitions of victims issuedacknowledged as victims.by the UN (see box 4.1). A third distinction, between firstand second-generation victims, is based on the dimension oftime. It is also important to bear in mind the fate of children and the implications gender has forvictimization.4.1.1 Individual and Collective VictimsAll brutal conflicts inflict severe harm on individual men and women but most, in particular genocideand civil war, also cause collective victims. Collective victims are created when violent actions aredirected at a specific population, for example, an ethnic, ideological or religious group. In such cases,individuals are targeted because of their connection to an identifiable collectivity. Overall, the effectis always to victimize the society at large.4.1.2 Direct and Indirect VictimsDirect victims are those who have suffered the direct effects of violence. They have been killed, orphysically and psychologically abused, detained, discriminated against and so on. Indirect victims arethose who are linked to direct victims in such a way that they too suffer because of that link.According to the Declaration of the UN Commission on Human Rights (see box 4.1), indirectvictims are the family members of a direct victim. Relatives often experience extreme hardshipand pain because of the suffering of a family member or by being punished because of their con54
nection to that person - through serious socio-economic deprivation, bereavement, the loss of abreadwinner, missed educational opportunities, family breakdown, police intimidation or humiliation. The Declaration also speaks of the people who suffer as a result of intervening to assist a victimor to prevent further violations.Some observers work with an even wider definition of indirect victim that includes neighbours,friends and bystanders of direct victims - all who may have been traumatized because of what theywitnessed. Others even query the usefulness of the distinction between direct and indirect victims inreality: one finding of the South African Truth and Reconciliation Commission (TRC) was that it isdifficult to distinguish meaningfully between the physical harm and psychological grief experiencedby the direct victim and the pain of those to whom this person is or was precious. Including awider constituency of victims in this way is very significant. It extends the scope of victimhood, andconsequently increases the number of people rightly claiming recognition and compensation for theirsuffering.4.1.3 First-Generation and Second-Generation VictimsMost attention goes to what can be called first-generation victims - those who have been victimizedduring their lifetime. But studies have demonstrated that their children and sometimes even theirgrandchildren have to bear the consequences of what happened and may feel and behave like victims,displaying deep hurt and bitterness. Trauma can be handed down. The second generation, particularly, tends to absorb and retain pain and grief, consciously or unconsciously. They carry traces ofthe experience into adulthood, and this is a problematic heritage that can threaten the future of asociety.4.1.4 GenderBrutal conflict causes immense suffering to all people, but it also has a different impact on men andwomen, because victimization is partly gender specific.Men are more likely than women to be involved in fighting and to be killed or wounded - althoughthere are cases where the participation of women in combat is considerable. Women have joinedthe ranks of several Latin American guerrilla forces, of the Irish Republican Army (IRA) and ofthe Liberation Tigers of Tamil Eelam (LTTE), among others. During the Ethiopian civil war of the1980s, approximately one-third of the rebel Ethiopian Peoples Liberation Front (EPLF) fighters werewomen. Women combatants can be doubly victimized - not only by their enemies but also by theirmale comrades - and in the latter case the victimization takes the form of physical and psychologicalabuse.Women suffer the brunt of various forms of sexual assault during times of violence or oppression.Mass rape of women belonging to an enemy group has been practised as a means of assaulting therole and identity of the men in the group as providers and protectors of the family and the group. Inother cases, young girls have been forced to marry men either as a strategy of creating alliances or tosatisfy the needs of men isolated from the family sphere during war. Women have also been exposedto increasing risk of rape, abuse and stigmatization by members of their own community as a resultof their new and more public roles and responsibilities during conflict. And, in response to growingpoverty, many more women have taken to prostitution for a living with a high risk of abuse andof becoming infected with HIV/AIDS. A long-term consequence of several of these acts of abuse ischildren who not only lack a father but who are also illegitimate and a continuous reminder of theviolation.55
One of the long-term consequences of mens engagement in war as combatants is their difficultyin redefining a post-conflict social role and a male identity. This may result in divorce, alcoholism,violence and criminality, with additional effects for the family and women.Sexual assault is not the only form of conflict-related victimization that is gendered. Differences inrights and entitlements have proved to be of great importance in determining how conflicts impact onmens and womens livelihoods. For instance, women are not always registered as individual citizens,nor are they always registered (and recognized) as owners of land, houses, assets and utensils. In asituation of conflict and social upheaval, women mayVictimization is partly gender specific.have difficulty protecting their resources and find italmost impossible to make claims for compensationand other kinds of assistance. This adds to their economic and social vulnerability.Not only do women suffer differently to men, but their response to victimization is often differenttoo. In most cases, women hesitate to testify to sexual abuse as it would be considered shamefuland, typically, result in stigmatization and perhaps even severe punishment, although men too, findit difficult to admit to repeated cases of rape, partly because it inverts prevailing notions of genderroles.With regard to economic victimization, womens weakness is often their lack of knowledge aboutand experience in dealing with authorities. Their strength, however, is the existence of local self-helpgroups created in order to help women overcome hardships and create supportive relationships. Itcan be said that women have succeeded better than men in identifying a commonality and unitingas victims across national, ethnic, class, religious and other boundaries. This is a reminder of theimportant point that no victim is only a victim, but also an actor with many identities, roles andresources.Finally, victimization may not cease with the establishment of a peace agreement. Cases fromCambodia and Sierra Leone demonstrate that sexual abuse unfortunately often continues with theappearance of peacekeepers and humanitarian workers. Experience in Rwanda and South Africaillustrates the difficulties - and double victimization - that women may face when they try to makethe state recognize and compensate the injustice and sufferings they have undergone during conflict.In some cases, limited representation on political bodies prevents them from giving voice to theirgrievances; in others it is a womans affiliation with a particular ethnic or social group or her husbandsposition and role in the struggle that determines her entitlements.4.1.5 Children as VictimsChildren are the most defenceless victims in civil war and other forms of violence and oppression.Two groups are particularly vulnerable - refugee children and child soldiers.More than half of the worlds refugee population is made up of children. They are often separatedfrom their family, suffer socio-economic deprivation, usually have no access to schooling and, moreimportantly, are seriously traumatized by what they have experienced. Child soldiers have frequentlybeen intimidated or abducted, brutalized and coerced to commit atrocities. A special case is the fateof the Latin American children of murdered members of the opposition, who as orphans were thenforced into a kind of adoption by the families of soldiers or police officers. Another group of childvictims are the many girls who are either forced into marriage at a young age or removed from theirfamilies and homes and sold as prostitutes. And, finally, there are the many invisible and indirectvictims - the children who are prevented from receiving an education and employed as child labourers, or who are abused at home by parents and relatives - a symptom that is found in many societies56
culture, partly shape the selection of those who will be allocated victim status.No post-conflict state can involve every single victim in healing activities, truth-telling, trials andreparation measures. Material resources and manpower are too scarce. Of necessity, usually only afraction of those whose fundamental rights have been violated will be accepted as real victims, buteven so they may fulfil a positive role of representing symbolically the wider constituency of victimsin the formal reconciliation process.4.2.1 The Definition of a VictimSocietys influence in this process of defining who exactly qualifies as a victim comes from threesources: socio-political factors; legal definitions of victims; and cultural influences on definitions.Equally important is the perception of the person who has been victimized. Is he or she aware ofthis victimization? Does he or she aspire to the status of victim or is there a conscious refusal of thislabel?Socio-Political FactorsOfficial agencies define victims. Initiatives in the area of healing, truth-telling, justice and reparationobviously contribute to the definition of who will be included in the category of victims.This is most clearly visible in the activities of truth commissions. No doubt, such bodies stimulatethe recognition of victims. This has clearly been the case with the TRC in South Africa. Hundredsof statement-takers talked to victims; many witnesses were heard during public sessions; its officialreport publicly acknowledged the distress of tens of thousands of men and women. Yet still its mandate excluded many others whose pain fell outside the terms of reference, and this was also true ofall the other truth commissions of the 1980s and 1990s. Such exclusion comes about as the result ofpolitical, time and economic restraints.The political definition of which crimes are to be identified and registered as relevant has majorconsequences, precisely because any such definition necessarily also excludes some crimes as irrelevant. But, irrespective of the definition, all such crimes are relevant to the victims. One possibleeffect is gender bias in a commissions mandate: definitions of gross human rights violations haveoften masked or sidelined the types of abuse more frequently suffered by women. (A major step incorrecting such prejudice is the recognition of sexual violence, in the statutes of the InternationalCriminal Tribunal for Yugoslavia (ICTY) and of the International Criminal Court (ICC), as a crimeagainst humanity and a war crime.)Time, too, is a significant factor. Truth commissions or commissions of enquiry usually examineevents during a specifically defined period of history. Violations that occurred before or after thisperiod will therefore not be addressed, despite the real suffering and victimization they have caused.Economic constraints can also have huge effects on restricting either the definition of victimhood orthe capacity to fulfil the resulting mandate.Reparation programmes have similar effects. These include individuals and communities in thedefinition of victimhood. But they, too, have to make painful decisions.In post-conflict states, where economic infrastructure has often been destroyed, resources are scarce.58
So the reality tends to be that only a section of all the injured parties, perhaps just direct victims,or just those with the most serious physical injuries, will qualify for compensation. Others will beexcluded. For example, refugees are a category of victims that can easily be forgotten. Their voices inthe debate around defining victimhood are weak; they have often lived outside the country, perhapsfor a generation or more. Reparation to them, for example, through restitution of property, is consequently a difficult, contentious and expensive enterprise. Women may be another group who becauseof their socio-political status or the nature of their victimization risk being excluding from reparationprogrammes. In many cases their suffering is considered a private issue which should mainly be dealtwith at the private level.The role of NGOs, both local and international, also contributes to the identification and definition of victims.Their role in these processes often starts before the demise of an inhuman regime or the end ofa violent conflict. Civil society groups monitor human rights abuses, gather information on victimsand provide assistance to them. In Argentina during the 1970s and early 1980s, NGOs collectedinformation on the disappeared while the generals were still in power. In 1983 they gave copies oftheir files to the state-initiated National Commission on the Disappearance of Persons. In Guatemala,the Human Rights Office of the Archbishop gathered information on victims well in advance of theactivities of the official truth commission. Most of the information these NGOs collected was ofcritical importance in the post-conflict situation.NGOs are also active in the area of healing, rehabilitation and reintegration of victims. All theseactivities have effects both on how victims come to perceive their own status and on official definitions and policies. While international and local NGOs may help to give silenced and invisiblevictims a voice, the engagement of NGOs is not always neutral. Sometimes they select victims ona sectarian basis and exploit humanitarian assistance to create or strengthen partisan relationships.Another problem inherent in humanitarian assistance work by NGOs and other agencies is a tendency to overstress the victimhood of individuals and groups, overlooking the fact that they havemultiple other identities, experiences, resources, capacities, interests and aspirations, which are equallyimportant in defining and positioning them as individuals and citizens.Legal DefinitionsIt took the international community many years to reach an agreed definition of victim.The UN Declaration of Justice for Victims of Crime and Abuse of Power of 1985 (see box 4.1) wasa first step. This general description served as the basis for the UN Commission on Human RightsDeclaration on the Right to Restitution for Victims of Gross Human Rights Violations of 1999. Thestatutes of the ad hoc international tribunals in The Hague and Arusha, and of the ICC, also containformal definitions (see box 4.1 for the last of these).The criminal legislation of a post-conflict state, combined with international humanitarian andhuman rights law and the states customary, indigenous and religious law, constitutes a second element in the identification and recognition of victims. The broader the scope of such legislation, thehigher the number of victims who can be included in the legal category of injured parties.In transitional societies, it is usually the task of parliament to oversee the process of adapting existing criminal legislation to develop a suitable prosecutorial system to try the perpetrators of violentacts. Political and time constraints usually result in limits being set on the scope of the new system.Further problems often occur later at the operational level, when a department of justice tries to putthe procedural machinery into gear. These are exemplified in Ethiopias transitional justice system.59
The courts there can deal with only a fraction of the crimes committed by the MarxistLeninistMengistu regime, and are forced to prioritize crimes and prosecute only the most serious, such asgenocidal acts. Other major crimes - arbitrary arrests, seizure and theft of property, forced migrationof farmers, the use of famine as a weapon of war and so on - remain outside their reach. The consequence is that the suffering of millions of victims will not beacknowledged or taken into account. In addition, as is oftenViews on rights are to somedegree culturally rooted.the case in such situations, the process focuses only on theactions of the previous regime, while the human rights violations of the armed opposition movements remain outside consideration.Finally, prosecutors and adjudicating judges in national and international tribunals are also keyactors in the definition process: it is they who decide, in a very formal way, who is a perpetrator andwho is his or her victim.Cultural InfluencesThe debate on the universality of human rights has demonstrated that views on these rights are tosome degree culturally rooted, as are opinions as to what constitute gross violations of these normsand, consequently, as to how the notion of victim should be constructed. Culture is also significantin delineating the extent of the circles of indirect victims. At a very general level, it is fair to say thatsocieties in Africa and Asia work with broader definitions of the scope of the immediate family and ofcommunity ties than do many in Europe (see box 4.1 for an example from South Africa).Personal PerceptionPolitical programmes and legal texts are not the only foundations for defining a victim in the contextof state crimes and civil war. The inclusion of people in (or their exclusion from) the broad categoryof victim also depends on the personal perception of the individuals involved and on the prevalentvisions within a society or a culture of what is a crime and, thus, of what is acknowledged as producing physical, mental and economic harm.Individuals differ in the way they perceive what was inflicted on them. Some deliberately refuse tobe labelled as victims. They see themselves as soldiers, heroes, freedom fighters or martyrs. Othersprefer the label of survivor because, in the words of Rama Mani, a scholar who has worked in severalAfrican countries, The term victim defines individuals in terms of their past; makes them appear illand in need of treatment; impotent and in need of help.Awareness of victimization is another important factor. To perceive oneself as a victim requiresnaming the pain one suffered, blaming the offender and claiming some type of restitution. Obviousthough this may sound, people regularly fail to do this. There are many understandable reasons.They may lack access to the public debate. They may lack the social skills necessary to make theirvoices heard. The effects of their trauma may have removed their belief that anything can be doneto help. They may remain passive because of feelings of guilt at having survived or at not havinghelped others. Womens experiences of harm differ from those of men. When making a statement, forexample, to a truth commission, women sometimes tend to speak about the agonies of their childrenor their husbands rather than their own anguish. Often, talking publicly about sexual abuse wouldonly bring them more shame and social exclusion.Victims have the right to remain silent. But, as noted earlier, in some ways those victims who dospeak out and engage in the reconciliation process can act as the symbolic representatives of thosewho remain silent.60
4.2.2 Re-victimizationThere are ways in which a person who is already the victim of political, ethnic or religious violencecan receive additional hurt after the direct cause of victimization has disappeared.Sources of re-victimization tend to appear in one or more of the following ways: denial of the status of victim; unfulfilled expectations in dealing with official agencies; unwanted effects of victim-centred initiatives; and social stigmatization and exclusion.The first mechanism was partly discussed in section 4.2.1: socio-political, cultural and legal definitions of victimhood result in the exclusion of individuals and communities. Inevitably, despite thebest attempts, some victims will be denied acknowledgement. Sometimes denying the status of victimis vicious in nature. It may rest on a conscious attempt to make the suffering appear banal (for example, the harm done to European Gypsies during World War II was publicly denounced as negligible).It may result from stigmatization (for example, in the late 1940s and early 1950s Jewish Holocaustvictims were almost blamed for a perceived passivity to their fate - going like sheep to the slaughter).Or it may be the effect of denying victims suffering by dismissing them en masse as terrorists,murderers, criminals and so on.Victims become engaged in a broad range of relations with a variety of government and nongovernmental agents - police, judges, civil servants, medical doctors, journalists and professionalsfrom victim support associations. In these engagements, victims expect an expression of understanding, sympathy and comfort. But in fact the actions and reactions of these people can sometimesmerely cause extra grief. The treatment received may be unprofessional, inadequate or humiliating.The information given may be incorrect or insufficient. The formal process may be too impersonaland cold. Such negative experiences leave the victims even more mentally scarred. They increase emotional stress and feelings of incomprehension, hopelessness and isolation. Sometimes the structures ofthe system establish hierarchies of suffering, causing great offence and renewed hurt to those whosepain is labelled as minor.A different but equally hurtful effect happens when victims agony is used and/or abused for political means. Sometimes a new regime may be tempted to exploit the misery of its victims as a sort ofemotional blackmail in order to gain more assistance from the international community. Consciousor unconscious, such manipulation of victims, by politically hijacking the victim issue, can bringshort-term rewards, but its internal effect in the society - alienating the victims - is seriously counterproductive to sustainable reconciliation.Ironically, re-victimization can even arise in institutions that are developed to serve the interestsof victims. Truth commissions, for example, may reopen the wounds of testifying victims becauseof the confrontation with their aggressors or because of negative exposure by the victimizer. Theprocedures of retributive justice can have a similar effect. Theyare perpetrator-oriented and thus tend to exclude the voicesRe-victimization can even ariseof the victims from the whole process, or directly hurt themin institutions that are develthrough a vicious cross-examination procedure that simplyoped to serve the interests ofvictims.serves to make the victim relive the trauma in public.Regardless of whether a violation has been officially recognized or not, victims will also be at risk of longer-term re-victimization as a result of social stigmatization and exclusion. The human will to forgive is considerable, but there are many cases where61
individuals, especially women, continue to be punished for having become a victim. Widows may notbe allowed to remarry; women who have been raped, forced to sell their sexual services or who havesimply taken a job outside their home are treated as prostitutes; their children are ostracized. Suchdenials of social recognition and reintegration may have serious ramifications for womens economicposition and ability to contribute to efforts to counter structural marginalization.4.2.3 Self-VictimizationIt happens that perpetrators of violence themselves lay claim to victimhood. They blame the ideological indoctrination they were subjected to or refer to earlier periods in history when it was theirgroup or community who was victimized. They may even blame the system for what they did. Theeffect is to render their actions excusable, and to shift theresponsibility to some more anonymous system, ideolVictim empowerment is a prerequisite of any reconciliation policy.ogy or regime.Observing the conflict in Northern Ireland, MarieSmyth writes: The status of victim renders the victim deserving of sympathy, support, outsidehelp. Victims, by definition, are vulnerable, and any violence on their part can be construed as theconsequences of their victimization. The acquisition of the status of victim becomes an institutionalized way of escaping guilt, shame, or responsibility.The argument of victimization through indoctrination is, to a certain degree, acceptable in thecase of bystanders and onlookers, who are faced with the charge of being morally, if indirectly, guilty(see chapter 5). But it can encourage them to avoid any responsibility for the construction of a justpolitical and economic future for all members of society. Where offenders call on the we are allvictims argument, the effect may be to seriously obstruct reconciliation programmes. Such blurringof guilt can become an obstacle on the path to coexistence, trust and empathy from the point of viewof many victims.4.3 Victim MobilizationPassive victimhood - the state in which people avoid addressing their pain and trauma throughsilence, disengagement and resignation - is an enemy to reconciliation. It blocks the return of thevery integrity and self-confidence of the victim. It also tempts the victimizers to define and organizereconciliation as a painless forgiving and forgetting. Victim empowerment, the way to escape fromthis submissive position, is a prerequisite of any reconciliation policy.4.3.1 Victim EmpowermentAlmost all reconciliation programmes, particularly in the area of healing and truth-telling (see chapters 6 and 8), aim to empower the victims of brutal conflict. They mobilize resources that restore thedignity, the reputation and the life chances of victims.Victim associations are key actors in this area. They operate in most post-conflict societies andrange from small groups, like the Mothers of the Plaza de Mayo in Chile, to large-scale organizationsof survivors, like IBUKA in Rwanda. They cover a whole array of activities in the area of empowerment. They act as pressure groups, inform public opinion, offer legal aid.Victim identification is one of their most important goals. IBUKA (kinyarwanda for remember)has published a list of 59,050 genocide victims, all from the prefecture of Kibuye situated in the westof the country, on the border of Lake Kivu. This record contains personal data (name, sex, age andso on), and information on the circumstances of the killing (place, weapon used etc.). In Argentina,62
Chile and Guatemala, where atrocities have for a long time been denied, the collection of such basicdata by victim associations can work to break the conspiracy of silence.Victim self-help organizations have another, equally crucial role to play. The healing effect of suffering together has been described by group therapists. While trauma can silently continue to killvictims from within, talking about it in the company of fellow-sufferers may give them a sense ofrelief and can start a cathartic process. The exchange of information, the learning process of listeningto other peoples problems and questions, the gradual discovering of the power of alliances - all thesefacilitate the development of social and politico-legal skills. Members of such groups will slowly butsurely enable each other to master the techniques of naming the pain they suffered, blaming thosewho are responsible and claiming recognition and reparation. To resent wrong done is conducive toregaining self-esteem, a crucial step towards rebuilding trust in oneself and in others. An additionaleffect is to counteract the attitudes and types of behaviour that develop in silent isolation.Self-help groups, like the associations of widows in Rwanda, create for their members a supportivesocial fabric. Victims who, through their involvement in such networks, make the transition frompassive disengagement to active engagement may even grow into the role of moral beacons and playa significant leadership role in reconciliation projects.One recent development - the rise of what has been called a victim culture - may make it easier forvictims to achieve the much-needed empowerment. Public opinion, in part stimulated by and partlyfollowed by policy makers and NGOs, has altered in two ways.First, there has been a shift from the cult of the hero or victor to the cult of the victim. Sufferinginstead of heroism now attracts public and political consideration. This cultural reversal is evidencedin what has been called the rediscovery of historical victims, such as the forced labourers of theThird Reich, the sex slaves (known as comfort women) of the Japanese Army in World War II, theJapanese-Americans who were detained in concentration camps after the Pearl Harbour attack, NativeAmericans in the USA, Aborigines in Australia, and the millions of men and women abused andkilled during the merciless period of European colonialism and slavery. This has led to the demandthat political descendants apologize for past acts, and to claims for restitution and reparation, all inthe name of reconciliation.A second shift has diverted attention, in the reaction to crime, away from an exclusive focus onthe offender and turned the emphasis towards the victim. In a general way, this trend is detectablein the proliferation of victim support programmes and in the growth of victimology as a scholarlydiscipline. More specifically in the context of dealing with a violent past, transitional societies nowseem to prefer restorative justice and truth-telling above outright retribution, partly because penalaction is perpetrator-oriented and largely excludes or ignores victims, while the alternative instruments focus much more on the victim and the effects of the crime.Victim empowerment is not a blessing in all circumstances. It can become an obstacle to peacefulcoexistence and mutual trust. Victim associations may organize opposition to measures that are aimedat reconciling former conflicting parties, such as conditional amnesties or reintegration of offenders.They can become trapped in the past, searching continually for recognition of their suffering butwith no strategy for the future. Rwandas IBUKA, for example, has been criticized for its opposition tothe release of prisoners who were detained without any indictment and for its initial refusal to acceptthe reconciliation-oriented gacaca tribunals (see the case study following chapter 7). Victim associations in Northern Ireland have opposed conciliatory measures, such as the inclusion of convictedprisoners in the governments Victim Liaison Unit. Activities and groups that serve to strengthenvictim identities and communities can sometimes lock people into the past, or encourage partisan63
groupings among sufferers. At worst, this can even lead to the use of past suffering as a justificationfor new retaliatory violence.4.3.2 Victim CompetitionIt is tempting to see all those who have suffered from violent conflict as natural allies, even as membersof one harmonious family. History, however, teaches us that victims frequently compete fiercely witheach other for recognition, for material resources such as compensation and positive discriminationin the areas of housing and education, and for symbolic goods such as monuments, medals, memorialdays and other types of commemoration.Most common is competition between victims of the same atrocities. There are historical studiesof the bitter post-World War II struggles between the various victims of the German invasion inBelgium, France and the Netherlands. Resistance fighters, forced labourers, persecuted patriots, antifascists, communists and surviving Jews all tried to represent their own suffering as greater thanthat of others and to make their experiences dominant in the national war memory. The pattern isrepeated again and again in many contexts today. In Burundi, for example, it is usual for Tutsi leadersto boycott the inauguration of any memorial to Hutu victims, and vice versa.A second kind of competition develops between victims of different aggressions. American historianPeter Novick speaks cynically of the fight for the gold medal in the Olympics of genocides. SomeJews in particular have emphasized the uniqueness of the Holocaust, even denying other victimgroups (e.g., the Armenians in early twentieth-century Turkey) the right to call their suffering genocide. This reaction is easy to understand. Not only is it the product of massive trauma, but its aim isto monopolize the symbolic capital that such a unique fate brings and to convert it into political andeconomic opportunities that might begin to compensate for the massive injustice.4.4 Victims and Offenders: Interchangeable RolesThere are post-conflict circumstances in which it is almost impossible to draw a clear line betweenvictims and perpetrators.Authoritarian regimes, particularly if they stay in power for many years, have the effect of blurringthe distinction between being victimized and being an accessory: large sections of the populationbecome casualties of the totalitarian use of continuous indoctrination and ideology, but they mayalso collaborate in state crimes. In the case of a civil war, almost all rival groups have committedflagrant violations of human rights. The cycle of violence in such countries as Burundi, Colombia,Northern Ireland, Rwanda and Sri Lanka continually turns victims into aggressors and vice versa.Most extremely, people are sometimes brutally forced intoaggression: Guatemalan peasants were coerced by the army toThe alternation of roles betweeneliminate informers passing information on to the guerrillavictims and offenders is an impormovements.tant consideration in preparingand implementing reconciliationThis alternation of roles is an important consideration inprogrammes.preparing and implementing reconciliation programmes. It isclear that no coexistence or mutual trust will develop if therotating nature of violence is not recognized and admitted. Many will refuse to accept accountability: Peoples who believe themselves to be victims of aggression have an understandable incapacityto believe that they also committed atrocities. Myths of innocence and victimhood are a powerfulobstacle in the way of confronting unwelcome facts, writes Michael Ignatieff. Mutual aggressionalso creates a post-conflict situation in which retributive justice is almost impossible to achieve. Penal64
Other ReferencesBoyden, Jo and Sara Gibbs. Children of War: Responsesto Psycho-Social Distress in Cambodia. Geneva: UnitedNations Research Institute for Social Development(UNRISD), 1997.Gibbs, Sara. Postwar Social Reconstruction inMozambique: Reframing Childrens Experiences ofTrauma and Healing. In Rebuilding Societies afterCivil War: Critical Roles for International Assistance,
Offenderslu c h u yse
Violent conflict produces a wide variety of offenders - men and women, state and non-state actors,local and foreign individuals and organizations, generals and foot soldiers. Ideally, the processesaimed at reconciliation should touch them all. In practice, many of them will remain outside thereach of healing, truth-telling, justice and reparation initiatives. Perpetrators may be unknown,on the run or simply unwilling to engage in reconciliation activities. Whatever the situation, it isessential to understand and recognize their role and motives (section 5.1). It is also in the interestsof a post-conflict society that perpetrators be reintegrated in their community (section 5.2).5.1 Understanding OffendersUnderstanding the why and how of offenders actions is not by any means the same as excusingthem. But it is a precondition for any reconciliation policy. It isUnderstanding the why andnecessary to understand the diversity of their guilt, the gravityhow of offenders actions isof their offence and their motives.a precondition for any reconciliation policy.5.1.1 Varieties of OffenderOffenders can be classified according to the nature of guilt. Isit criminal, political or moral? Is it individual or collective? The range of sources and forms of guiltdemands that a reconciliation policy reflect a diversity of approach.Primary and Indirect OffendersThe presence of criminal guilt is the distinctive factor for what are called primary offenders. Theyare the ones who, on the basis of national or international law, can be brought before a criminalcourt. This is the category that receives most attention from political actors, international institutions, public opinion and NGOs working in the field of human rights, the media and the academiccommunity.In the case of indirect offenders, guilt is of a political and/or moral nature. Their offence is caused(a) by the direct or indirect advantages they enjoyed as a result of the offences of others, (b) byinaction when witnessing violations of human rights, or (c) by unintentional harmful action.Each regime that is based on gross inequalities, each civil war, has its many silent beneficiaries.They do not kill, torture, abduct or abuse physically. But they profit whenever scarce resources areallocated - jobs and income, health care and education, housing and personal security, status and political power. In manySilent, indirect beneficiaries donot kill, torture, abduct or abuse.cases the benefits they receive continue from the past overBut they profit from the past.the present into the future. The report of the South AfricanTruth and Reconciliation Commission (TRC) rightly says:Reconciliation requires a commitment, especially by those who have benefited and continue tobenefit from past discrimination, to the transformation of unjust inequalities and dehumanizingpoverty. Focusing on beneficiaries also sheds more light on the victimhood of the majority, whereasan emphasis solely on the primary offenders inevitably limits the scope to individual victims whose67
suffering is most visible. The accountability of indirect beneficiaries must also be addressed in reconciliation processes.Domestic beneficiaries are those among the population who benefit most from the unjust situation.Their accountability, too, must be addressed in a reconciliation process. Otherwise, certain key aims,such as distributive or social justice, will remain a distant goal. (It was in this context that the SouthAfrican TRC proposed the introduction of a wealth tax to enable those who benefited from apartheidpolicies to contribute towards the alleviation of poverty. Up to now the scheme has not been putin place.)Bystanders and onlookers are another type of indirect offender. Complicity here is due to inactionwhen confronted with victims of violent conflict. They know what happens, or choose not to know,and remain silent. Their guilt is moral. Sometimes bystanders belong to the international community.The inaction of the UN in general, and of Belgium, France and the United States in particular, at thestart of the genocide in Rwanda was a forceful demonstration of such guilt. Another example was thepassive attitude of the Dutch UN battalion in Srebrenica, Bosnia, while thousands of Muslim menwere abducted and killed by Bosnian Serb forces.Unintentionally harmful action is a further sort of indirect offence. This is a problem that continually haunts UN institutions such as the United Nations Development Programme (UNDP) and theUnited Nations Commission for Human Rights (UNHCR), and large NGOs like Mdecins SansFrontires (MSF). They have sometimes been involved in actions that involuntarily led to the persistence of a civil war or of human rights violations. For example, the genocide in Rwanda producedmassive Hutu refugee camps in East Congo. MSF played a prominent role in the camps in responding to a major food and health crisis that broke out, while extremist Hutu elements in the campsexploited the crisis for the purposes of mobilization and indoctrination. It has been argued that asection of MSF, by maintaining aid provision for a year in the camps, in fact fuelled the war betweenHutu and Tutsi by indirectly facilitating the reorganization and regrouping of Hutu combatants.Individual and Collective OffendersCriminal courts deal with individual guilt. Truth commissions, on the other hand, can look at cases ofcollective guilt (see chapter 8). Their findings confirm that churches, professional groups such as thejudiciary and the medical profession, business and the media have contributed to human injustice.In many countries they act at least as beneficiaries and bystanders. Business leaders refrain fromcriticizing state violations of human rights because they need government contracts. In South Africa,the mining industry supported the migrant labour system thatdamaged black family life. Faith communities chose to look theChurches, the judiciary, theother way when confronted with the effects of state-sponsoredmedical profession, businessand the media have contributedterrorism. The line between being silent or active supportersto human injustice.of apartheid often became extremely thin. Churches providedtheological arguments in support of apartheid. Members of themedical profession advised police on torture techniques that left no marks.GenderThe perpetrators of genocide and mass atrocities are chiefly men. Understanding of the biological,psychological, cultural and political foundations of male violence in the area of human rights isextremely limited, and knowledge about the role of women in this domain is even more lacking. Basicstatistical information is scarce and, where it exists, merely anecdotal. For example, the report of the68
South African TRC has a section on women as perpetrators, but the only information is that one percent of amnesty applications of those where the applicants sex was known came from women.In effect, the inclusion of a gender perspective and information about the roles of women in situations of armed conflict is both recent and restricted, and there has been a tendency to depict womenas natural peace-lovers who altruistically take care of others. But, even when there is a differencebetween the social behaviour of men and that of women in conflict situations, it is important torecognize the roles that women may play as offenders as well. It has already been mentioned thatwomen have been active members in a number of liberation movements and armed forces. In SriLanka, for instance, there are women in both the national army and the Tamil liberation movement,the Liberation Tigers of Tamil Eelam (LTTE). In the LTTE women are said to be involved in thetorture of enemy soldiers, and they play an important role as suicide bombers and in recruiting forand justifying the war among civilian Tamils through seminars and public meetings. Women also playa significant role in justifying war through the upbringing of children, particularly sons. We knowfrom Sri Lanka, Palestine and other places that mothers actively encourage their sons to take up armsand fight the enemy. Also, women, like men, may take advantage of a militarized situation to involvearmed factions in resolving local and domestic disputes.5.1.2 Hierarchies of Cruelty, Hierarchies of OffendersThe term perpetrator is not applicable in all cases of victimization. Actions that produce considerable harm may be unintentional or the result of plain errors. In civil war, for example, collateral damage - killing or wounding civilians, destroying homes and communal infrastructure - is sometimesBox 5.1: Categories of OffenceInternational Crimes*(crimes posing a threat tointernational security and the safetyof humankind; these cannot bemodified by any treaty or domesticlaw): Crimes against humanity as definedin the Statute of the InternationalCriminal Court (ICC) of 1998 (article7) are crimes committed as part ofa widespread or systematic attackdirected against any civilianpopulation: murder, extermination,enslavement, deportation, severedeprivation of physical liberty inviolation of fundamental rules ofinternational law, torture, rape, sexslavery, forced prostitution, forcedpregnancy and sterilization, and allother forms of severe sexualviolence, persecution, enforceddisappearance of persons, apartheidor other inhuman acts of a similarnature.
unavoidable. No humanitarian or moral laws may have been violated. The strict notion of a perpetrator must be reserved for those whose acts fall into the categories of international crimes, gross violations of human rights and associated violations. Box 5.1 offers a short definition of these categories,portraying the faces of cruelty. It also helps to answer the questions whom to prosecute and/or whomto involve as perpetrators in programmes of healing, truth-seeking and reparation.Information on offenders must be located, processed and utilized. One of the first steps is to classifyoffenders according to the gravity of the crimes they committed or are suspected of having committed. This often proves to be difficult: the majority of the population has participated in human rightsviolations; records have been destroyed; the new regime lacks the logistical capacities.Two quite different approaches to offender classification can be found in Rwanda and Ethiopia.In Rwanda, the Organic Law of 12 October 2000 creating the special gacaca tribunals (see thecase study following chapter 7) provides for the classification of (suspected) perpetrators into fourcategories. Category 1 includes the planners, organizers and leaders of the genocide, persons actingin their official capacity, famous and excessively cruel killers and those who committed torture andsexual crimes. Persons suspected of physical assault resulting in the death of the victim belong tocategory 2. Category 3 is made up of criminals who committed serious but not deadly physicalassaults and violence. Finally, persons who committed offences against property (theft, destruction,looting etc.) fall into category 4. However, the obstacles and handicaps in information managementare immense and the implementation of this classification has proved to be extremely difficult.In Ethiopia, the Special Prosecutors Office had a double advantage: the former regime had keptmeticulous records and the US-based Carter Center contributed to the establishment of an information management system. The Special Prosecutors Office divided the suspects of genocide and otherhuman rights violations into three groups. Category I consists of the policy and decision makers.These are the people being tried in the so-called Dergue trials. (The Dergue was the government inthe previous regime.) Category II consists of the field commanders. They passed on the orders fromthe Dergue to the lower echelons. In the third category are the individual perpetrators of crimes.Right from the start, the Special Prosecutor has given priority to bringing category I offenders tocourt. This means that the most complicated cases are dealt with first, causing considerable delaysto the proceedings. In the meantime, some 9,000 suspects of the two other categories have been onremand since May 1991. The philosophy behind the Special Prosecutors strategy is that it will yieldan understanding of the chains of command.5.1.3 The Motives of OffendersUnderstanding offenders requires the examination of a multitude of potential sources of violentdeeds - biological, psychological, cultural and political. Asking offenders what their motives were isimportant, but it opens only one window on this immensely complicated matter. Many of the causesof vicious behaviour are consciously or unconsciously repressed.The Context as a Source of MotivesPsychological sources of acts of atrocity (e.g., pure revenge or sadism) are an important dimension toexplaining and understanding violent behaviour. However, in the context of reconciliation processes,factors of a social, cultural and political nature are even more significant, because they are moretangible targets for change-oriented policies than the psychology of real and potential offenders.Offenders may have acted or thought that they were acting under orders or under threat. Or, giventhe context (e.g., an authoritarian regime), their actions may not have been unlawful when they were70
committed. A major discussion in France, during and just after World War II, focused precisely onthe legality of the Vichy regime, which had collaborated with the German occupiers, and on theactions of those who, believing Vichy to be the legal and legitimate government of France duringthe war, obeyed its laws and committed ugly crimes. Some of the physical and psychological violencecarried out by the communist regimes of Central and Eastern Europe was sanctioned by the legalcodes then in force. Claus Offe, a German sociologist, gives the example of a communist offenderwho might argue that he was unaware of the now alleged criminal nature of the acts of which he isaccused; given the fact that he has been brought up in a regime that pardons and in fact mandatesacts (now deemed criminal) for the sake of higher political purposes, he had no reason to doubt therightfulness of what he had been doing.Perpetrators may themselves be victims of hate speech, as in Rwanda, where Radio Mille Collinesincited the Hutu population to exterminate the cockroaches (i.e., the Tutsi). The use of such dehumanizing language is a well-known technique that can turn ordinary citizens into violators of humanrights. As Alex Boraine says: The moment one designates a person as sub-human, one can act againstthem as an object with very little feeling. After all, if they arenot quite human, then they dont feel as we do, they dontPerpetrators may themselveshurt as we do, and in a sense they dont bleed as we do. Inbe victims.yet other ways, language creates confusion about the sourcesof, and the accountability for, violent behaviour. Authoritarianregimes tend to use ambiguous words and codes when they discuss security matters with the military,the police and secret services - take out, neutralize, methods after detention and informalpolicing. Adriaan Vlok, Minister of Law and Order in the last South African apartheid government,said in his testimony to the TRC: We at the top took certain decisions and we used terminologywithout actually really thinking about it and that worked its way through to the people on the groundand they misinterpreted it.Finally, the existence of a culture of impunity also adds to the ambiguity of some forms of violence.The Zimbabwe Human Rights NGO Forum published a report on alleged perpetrators and theircrimes during the 2000 parliamentary elections. They saw the culture of impunity in their country asone of the explanations for the violent behaviour of some of the followers of the governing ZimbabweAfrican National Union-Patriotic Front (ZANU-PF) party.Amnesties have proven to be a dangerous practice in Zimbabwe and have set an unfortunate precedent. A general amnesty was imposed both after the Liberation War and after the Matebelelandmassacres in the 1980s. As a result, Zimbabwes disinclination towards seeking accountability in boththese eras has been instructive to the populace in general: crimes will not be prosecuted, criminals arefree and are even encouraged to terrorize again, and victims will be denied justice.Latin American countries such as Colombia have a similar legacy of impunity, giving perpetratorsthe impression that their acts are politically, socially and morally accepted. (See chapter 7 on thequestion of amnesty and impunity.)Political MotivesViolence in the area of human rights is a multidimensional phenomenon. The political motives whichoften lie behind it are similarly varied.A frequent excuse is We were at war. This can be a genuine explanation in situations of civilwar between ethnic or religious groups. But it appears just as often in the context of colonial and anticolonial operations. The Cold War, too, was an extremely effective context for similar self-justifica71
tion. Ideology and a true belief in the cause can operate in the same way. Another, almost inexhaustible, source of rationalization appears when a society is caught in a cycle of violence. Revenge thenbecomes the fuel that continually causes breaches of human rights: new violence is justified, or evendemanded, as retaliation or punishment for previous violence.Non-state actors (paramilitary groups, rebels, and so on) who use violence will often explain theiracts as justifiable politically-motivated violence, unavoidable in response to state violence. Theirfight for freedom or against repression, for example, is purely motivated by political and/or moral aims, and is only dismissed as crimDistinguishing political frominal in the eyes of an unjust regime. Setting aside for the momentother motives for atrocitiesis a crucial mission in truththe question of the morality of violence in general, undoubtedlytelling and prosecution.this is a genuine explanation of why many ordinary peoplearound the world feel compelled to engage in extraordinary acts(i.e., violence) and see themselves as freedom fighters and reluctant heroes.Political motives can sometimes be used merely to camouflage criminal purposes. Examples can befound in the recent history of countries like the former Yugoslavia, Liberia, Sierra Leone and Somalia.The violence employed by official agencies (such as military and paramilitary units, police and so on)and by rebel movements is meant purely to protect their control over drug traffic, illegal migrationroutes or smuggling operations.Distinguishing political from other motives for atrocities is a crucial mission in truth-telling andprosecution. Victims will never accept amnesty, for example, as the outcome of a testimony in a truthcommission if there is no clear and unambiguous certainty that a human rights crime had a politicalfoundation. And transitional justice trials frequently use the notion of a political offence as a wayto identify attenuating circumstances. (See chapter 7.)5.2 Offenders and ReconciliationWhat can facilitate the reconciliation of offenders with their victims, with their society and with theirown destiny? Much depends on the context in which the victimization of fellow citizens was committed and on the motives of the perpetrators. In some cases background, motives and perspectivesraise serious obstacles to reconciliation; but experience suggests that under certain circumstances thereintegration of offenders is a principal step towards reconciliation.5.2.1 ObstaclesDenial of GuiltThe findings of truth commissions demonstrate that rejection of guilt and responsibility is based ona variety of discourses. We are heroes, not perpetrators is the interpretation repeatedly given whenviolence is committed against a background of civil war or of colonial and anti-colonial wars. Inaddition, where impunity is a dominant theme in the political and legal culture (as was the case inmany Latin American countries), offenders feel that they were entitled to do what they did. Othersrefuse to be called offenders, employing the well-known argument that they were only obeyingorders. They experience and acknowledge no guilt.Michael Ignatieff, writing on the tragic events in the former Yugoslavia, identifies yet other forms ofdenial, such as complex strategies of relativization: One accepts the facts but argues that the enemywas equally culpable or that the accusing party is also to blame or that such excesses are regrettablenecessities in time of war. To relativize is to have it both ways: to admit the facts while denying fullresponsibility for them.72
event.4. Moral evaluations of the eventsmay differ: actions may appear lesswrong, less evil, to the per-petratorthan to the victim. While victims tendto rate events in stark categories ofright and wrong, perpetrators maysee large grey areas.5. Discrepancies exist betweenvictims and perpetrators regardingthe question of motives andintentions, the crucial question ofwhy? Victims accounts show twoversions, one which emphasizessheer incomprehensibility - the
munity-based projects, asking them to offer their skills and time in rebuilding schools, hospitals androads. That is precisely the reconciliation-oriented sanction that the Rwandan gacaca tribunals at thelevel of the cell will be able to impose (see the case study following chapter 7).In countries such as Cambodia, Indonesia, South Africa and Mozambique, reintegration initiativesare often based on traditional rituals which express the acceptance of offenders back into the community. In Canada, Aboriginal ceremonies, called healing circles and including contacts with elders,have been integrated into official prisoner release preparation programmes. The philosophy behindsuch schemes is that modern criminal justice systems have disempowered local communities withrespect to reintegrating offenders by giving all the power to professionals such as social workers,psychologists and psychiatrists. These cleansing rituals place the crime back in the context in which ithappened. This approach is part of the broader perspective of restorative justice (see chapter 7).Reconciliation between offenders and victims will profit if both national and local policy makerscan retrieve, reassemble or combine elements of traditional mechanisms of healing, reintegration andrehabilitation.A Top-Down or Bottom-Up Approach?Balancing the needs of the political system against the desires of individuals and local communities,state authorities often give full priority to a top-down approach, developing policies such as amnestyor collective pardon. These may be perceived in the population as imposed solutions and, thus, beresented. Local initiatives, on the other hand, are frequently too few in number and too small inscope to constitute an adequate form of policy. The reintegration of members of the army or ofarmed rebellion movements, for example, needs to take place preferably in the context of a nationaldemobilization policy. What is wanted is a suitable mix of programmes and projects, both topdownand bottomup.That is exactly what is planned in East Timor. The Commission for Reception, Truth andReconciliation, created in late 2001, will try to achieve the objective of reception or reintegrationby using East Timorese traditional justice mechanisms and by facilitating community reconciliationagreements between the local community and the perpetrators of less serious crimes such as looting,burning and minor assault.Such a blend is particularly needed where child soldiers form an important part of the ex-combatant population. Approximately 300,000 children, some as young as 10 years, are currently servingas soldiers in more than 40 armed conflicts. They have often been kidnapped. (One of the mostbrutal examples is the abduction of some 10,000 children by the Lords Resistance Army in NorthernUganda.) According to Human Rights Watch, child soldiers in post-conflict societies are schooledonly in war and tend to be drawn into crime or to become easy prey for future military recruitment.Breaking this cycle of violence entails specific demobilization and reintegration projects, based oncreating opportunities for education, training and employment.5.3 Concluding RemarksIdeally, reconciliatory steps by offenders include fully exposing the facts, looking the victims in theeye, listening to them, repairing (part of ) the harm done, acknowledging sorrow, guilt or shame, andultimately feeling empathy with them. However, in many cases a variety of obstacles will block theway to such moves. Offenders may be unwilling to engage in reconciliation projects because theyunderestimate the consequences of their acts. Or ideology and a culture of impunity may incite them75
to reject guilt and responsibility or, even worse, look for revenge.Overcoming such obstacles should be the ambition of any reconciliation policy. Positive developments include accepting the diversity of guilt in violent conflict and distinguishing political fromother motives in atrocities. Reintegration of offenders into their local communities once a reasonabledegree of coexistence has been reached is another possibility. There is no guarantee that reintegrationprogrammes will convince offenders to reconcile with their victims, or vice versa. But such programmes certainly create opportunities for perpetrators to break out of their isolation and, in the caseof community-based initiatives, to realize the harmful impact their behaviour has had on the victimsand thus to consider how they might respond.
Other ReferencesBaumeister, Roy. Evil: Inside Human Cruelty andViolence. New York: Freeman, 1996.Boraine, Alex. A Country Unmasked: Inside SouthAfricas Truth and Reconciliation Commission. Oxford:University Press, 2000.Gibbs, Sara. Postwar Social Reconstruction inMozambique: Reframing Childrens Experiences ofTrauma and Healing. In Rebuilding Societies afterCivil War: Critical Roles for International Assistance,edited by Krishna Kumar. Boulder, Colo.: LynneRienner Publishers, 1997:227238Human Rights Watch, http://www.hrw.org/campaigns/crp/index.htm.Ignatieff, Michael. Articles of Faith. Index onCensorship 5(1996):11012276
Healingb r a n d on h a m b e r
There is no magic solution to the problem of dealing with the impact of extensive violence. Truthcommissions, criminal trials, or even extensive counselling and support, will not miraculously dealwith the legacies of violence in a society. Healing is inevitablya lengthy and culturally-bound process. There is often noHealing is inevitably a lengthyand culturally-bound process.clear starting point and there will be few markers along theway - indeed, it is rare for the psychological impact of thepast ever to be completely dealt with. This does not, of course, mean that programmes in pursuitof healing are a waste of time - quite the contrary. Assistance with healing can be invaluable forindividuals and their communities. But the inherent limitations of attempts to deal with the legacies of extreme violence and the long-term nature of any such project must be accepted.6.1 What is Healing?The World Health Organization (WHO) defines health as not merely the absence of disease andinfirmity but a positive state of physical, emotional and socialwell-being. Psychological health is understood by the WHOIt is not only important to helpas encapsulating, among other factors, subjective well-being,people deal with the impact ofthe conflict on them, but it isperceived self-efficacy, autonomy, competence, inter-generaalso essential to deal with thetional dependence, and self-actualization of ones intellectualcauses of the distress.and emotional potential. Psychological, emotional, physicaland social health are not only interlinked but interdependent.This chapter is primarily concerned with healing after what is often referred to as a traumatic situation, an event or series of events of extreme violence that occur within a social context - most typically,war. Building on his experience working as a psycholoBox 6.1: The Definition of Healinggist after the period of dictaFor the purposes of this Handbook,such, healing is not only abouttorship in Chile, practitionerhealing is defined as any strategy,assisting individuals to address theirDavid Becker uses the termprocess or activity that improves thepsychological health needs in anpsychological health of individualsisolated way, but is dependent uponextreme traumatization tofollowing extensive violent conflict.and integrally linked to repairingdescribe a situation whereStrategies, processes or activitiesand rebuilding communities and thethe psychological make-up ofaimed at rehabilitating andsocial context. This implies restoringindividuals and communitiesreconstructing local and nationala normalized everyday life that cancommunities more broadly are alsorecreate and confirm peoples sense ofis continuously overridden,integrally linked to this process. Asbeing and belonging.resulting in the destruction ofindividuals senses of belonging to society and their being unable to perform the normal activities required for society to function.It is important constantly to bear in mind that trauma is not simply a collection of symptoms, as itis often portrayed - in fact symptoms may not follow all traumatic situations. In its essence, traumais the destruction of individual and/or collective structures of a society. In this sense, it is not only77
important to help people deal with the impact of the conflict on them - to help them through,for example, a grieving process in a constructive way. It is also essential to deal with the causes ofthe distress and the symptoms. What needs to be healed is therefore the multitude of individual,political, social and cultural responses to a traumatic situation and its aftermath.6.2 Violence and its ImpactsViolence in most conflict situations generally includes a structural element, for instance, systematicdeprivation, racism or the denial of human rights.The devastating impact of structural forms of violence on psychological well-being cannot beignored. The psychological consequences of deprivation - one form of structural breakdown that canoccur during conflict - are well documented. They include the effects of poor nutrition on the mentaland physical development of children, as well as anxiety, depression and stress-related conditionscaused by poor living and occupational conditions. Repression of culture and expression, ethnicintolerance and discrimination - also common in conflict situations - can severely undermine andeven destroy social and cultural norms and feelings of identity, belonging and trust in institutions.Such micro-effects of violence can continue to ripple through communities for decades thereafter.Acts of extreme violence are not always isolated and can extend over a period of time in such a waythat an individual is victimized more than once. Or individuals may be exposed to multiple traumassimultaneously. For example, a person may be traumatically injured while at the same time witnessinganother person being killed or severely injured. An individual may be subjected to torture duringprolonged incarceration while knowing that his or her family is suffering economic hardship andsystematic intimidation.The South African Truth and Reconciliation Commission (TRC) provides a useful example of thecomplexities of dealing with extensive political violence. Various psychological symptoms and signshave been observed in some of those who have testified. On the whole, most individuals presenta mixture of issues related to social, psychological and medical problems. In most cases, individualpast traumas (e.g., torture or abuse by the police) have been overshadowed by present psychological,personal and social problems. Furthermore, the ability to draw direct causative links between theinitial traumatic incident and the present difficulties experienced by some survivors has generallybeen complicated by the protracted period of time that has passed since the violations took place. Insome cases, survivors and families have testified about violations that took place in the 1960s.Different violent and political incidents can have distinctive cultural meanings and thus specificimpacts. It is not only the traumatic event that requires attention: most particularly, the way inwhich the individual (or community) interprets the eventis vitally important when considering a strategy for healing.Different violent and political inciPsychologist Michael Wessels, reflecting on his experience ofdents can have distinctive culworking in Angola, argues that in Sub-Saharan Africa it istural meanings and thus specificimpacts.spirituality and community that are at the centre of life. Forexample, an Angolan boy whose parents were killed after thefamily was forced to flee may not need in the first instance to talk through his experience in a safeand supportive environment: rather the major stressor for the boy may be the spiritual discord andresultant communal problems following from his inability to conduct the proper burial ritual for hisparents. Similarly, in Zimbabwe, survivors of the Matabeleland massacre (see the case study followingchapter 2) consider the corruption of community values more offensive and disturbing than anyother aspect of the conflict. It is primarily this loss that is still being mourned years after the massacres78
of the 1980s.There is always a significant subjective component in an individuals response to a traumatic situation. This can be seen most clearly in disasters where, although a broad cross-section of the population is exposed in an objective sense to the same traumatic experience, individual psychological reactions are markedly different. The individuals reaction depends as much on his or her pre-traumaticpersonality structure, personal resources, coping strategies, understandings of the cause of the event,resilience and extended community support structure as on the actual traumatic incident.Other factors such as gender and age are also significant. A traumatic incident has different impactson children, young adults and older persons. In any healing process it may be necessary to specifically target vulnerable groups. According to the United Nations High Commission for Refugees(UNHCR), vulnerable groups include children, adolescents, victims of torture and sexual torture,those who have been repeatedly traumatized, the elderly, psychiatric patients, ex-detainees, prisonersof war and relatives of missing persons. A percentage of individuals (some estimates are as high as 30per cent) will develop a severe emotional response to a traumatic situation (e.g., psychosis or suicidaltendencies).The proximity in time of the traumatic incident should also be taken into consideration.Immediately following an incident victims often appear cut off, dislocated and unable to participatein a healing process. At a later stage they may be more ready to begin to move towards resolution orintegrate the event into a broader web of personal and community meaning.There is no linear progression to the healing process and no typical or universal response to violence. What we do know, however, is that individual and social impacts of extreme forms of violenceand social disruption caused by conflict can have an effect for decades thereafter. Any strategy aimed ataddressing the impact of political conflict and extreme violenceneeds to be long-term in its outlook. Some specific responsesThere is no linear progressionto the healing process and noto direct political violence include self-blame, vivid re-experitypical or universal response toencing of the event, fear, nightmares, feelings of helplessness,violence.hypervigilance, depression, relationship difficulties, feelings ofsocial disconnectedness, anxiety and even substance abuse-related difficulties. In Western practice, the term post-traumatic stress disorder (PTSD) is often usedto describe this collection of symptoms. However, the relevance of using this medical language isquestionable. Again, it is important to stress that the objective of a healing programme is not merelyto address the symptoms of trauma or make a diagnosis. PTSD should not be used as the principalvehicle for explaining the impact of the traumatic situation on the individual or society. Rather thesymptoms (or reactions) must be viewed from a position of understanding the origins of violence andits meaning to those involved, as well as the social and cultural context.The case of the Angolan boy mentioned above is useful to consider in this regard. Focusing on hissigns of distress (sleep disturbance and hypervigilance) could divert attention from strategies at thecommunal and spiritual level where they are most needed. Even in a Western context, focusing solelyon the distress of an individual and their symptoms can divert attention from the important role ofsocial interventions such as justice, truth and reparation. These issues are discussed in more depthbelow.6.3 Reconciliation and HealingHealing should be sought at the individual level but dependent upon and interrelated with the socialcontext.79
Much of this Handbook is about the use of broader social strategies aimed at restoring the socialcontext and society. It explores a number of strategies and approaches aimed at helping victims toacknowledge pain and providing space for victims or survivors of political atrocities to speak outif they so wish, or to participate in processes of justice or mediation. Such processes are necessarystarting points and preconditions for creating a social context that is conducive to healing. Strategiesfor healing (explored in section 6.5) are also part of this process.Just as healing is dependent on the collective and political context, so too can individual and community healing strategies bolster national attempts to re-establish society.When considering healing, particularly at the individual level, it is important to acknowledge that itstrajectory is naturally haphazard and it is a slow process. While, on the one hand, political processes andstrategies aimed at reconciliation are important in establishingthe context for individual healing and coming to terms withOften politicians and politicalviolence, each individuals healing path is personal and unique.processes are ready to move onbefore those who are the directIt can often be at odds with political, social and internationalsurvivors of political violence.political demands on people to leave the past behind.In this sense, some survivors can experience national processes of reconciliation, especially in the absence of full truth and justice, as false reconciliation.This is because the national process of moving forward and making amends does not coincidewith the process of the individuals coming to terms with the situation, or because reconciliation hasnot ensured sufficient social justice to complement the individual healing process. This situation isintensified when survivors feel that the social space in which they can vent their anger is closed down,or when their disenchantment with peace processes (e.g., over amnesties or prisoner releases) resultsin them being branded as anti-reconciliation. The result is that often the politicians and the politicalprocesses are ready to move on before those who are the direct survivors of political violence.6.4 Approaches to HealingThere is no single healing process. What is called for is a blend of facilitating transformation ofthe social world that causes distress, while attending to individuals needs. To this end, it is usefulto highlight some approaches that can be used to address the suffering of those affected by violentconflict. However, before doing this, it is important to acknowledge a set of broad principles thatshould guide all strategies aimed at healing. These are: understand the context; use local resources; and link healing with wider reconstruction efforts.6.4.1 Understanding the ContextAny strategy developed to deal with the needs of victims after conflict must acknowledge the socialand cultural context and address the individual as a whole. Often - especially from a Western perspective - this is understood to mean that any intervention (e.g., counselling) should be tailored orreworked to be culturally relevant. This is, in fact, a wrong approach. Context is not a minor variablewhose influence on a programme needs to be considered and accommodated; rather it is the majorvariable which should be the starting point when developing the healing strategy in the first place.6.4.2 Using Local ResourcesIt would be mistaken to see conflict and violence as always resulting in the complete breakdown of80
social, community and psychological functioning. Psychiatrist Derek Summerfield writes that thehuman responses to war are not analogous to physical trauma: people do not passively register theimpact of external forces (unlike, say, a leg hit by a bullet) but engage with them in an active andproblem-solving way.Some communities and individuals can become extremelyLocalized coping mechanismsgood at coping with adversity. Localized coping mechanismsand models of social and emotional resilience should be idenand models of social and emotional resilience should be identitified, supported and built uponfied, supported and built upon where possible. At the samewhere possible.time, one needs to guard against overvaluing or glorifying existing mechanisms. It is often the case that traditional mechanisms are destroyed in the violence. To take the view that only local supports should be used, especially in a context where these may be almost non-existent, could also mean denying people servicesand relevant supports. It is also possible that some coping mechanisms, such as silence, may in factbe counterproductive in the long run.6.4.3 Linking Healing with Broader Reconstruction ProgrammesTruth, acknowledgement and justice cannot be separated out from the healing process. Psychosocialinterventions which operate in a vacuum are less effective than, and cannot in themselves replace theneed for, truth, acknowledgement and justice. Bringing perpetrators to justice is an important, legitimate and sometimes essential component of a victims recovery and psychological healing. Amnestiesare generally unacceptable to victims.Today, some members of survivor self-help groups in South Africa will speak of a sense of closure,but for most the past is still very much alive. Some of this is merely a reflection of the long-termnature of healing. However, it is also largely due to the fact that, despite various healing initiatives,the truth about many cases has still not been revealed, while amnesty has been granted to perpetratorsand reparations have been slow to be delivered. The cry that there can be no reconciliation withouttruth is still common for many victims. This is not an uncommon occurrence in societies followingextensive conflict: groups started over two decades ago in Chile, Argentina and Brazil can be heardto say the same thing.The result of this is that psychosocial programmes (see section 6.5.1) often need to delve into thepolitical world. It may be necessary for those working with individual victims (e.g., with counsellingand complementary therapies) to be aware of broader processes and even be involved in activitiessuch as working for the discovery of the truth of past events orsupporting processes such as commissions of enquiry or prosHealing initiatives need to beecutions. This activist perspective can pose problems for somepart of socio-economic and cultural reconstruction in the posttraditional psychotherapy models which demand objectivity.conflict phase.One of the main interventions needed in terms of genuinehealing is to re-establish as far as possible a socio-political context conducive to helping those victimized to begin to reclaim their sense of identity and dignity.A favourable context is necessary if local and traditional forms of support (and resilience) are to beidentified and built upon. This means that healing initiatives need to be part of socio-economic andcultural reconstruction in the post-conflict phase.6.5 Healing Programmes and StrategiesA wide range of healing strategies has been used in different contexts, and they can be useful sources81
of inspiration and guidance when building a healing programme. However, two points to bear inmind are that: (a) all strategies should ideally grow out of the local context; and (b) most contextsdemand that multiple strategies be undertaken simultaneously.Some healing-oriented programmes typically seen in post-conflict situations are: psychosocial programmes; individual counselling and support interventions; training of local communities with psychosocial support skills; self-help support groups; and symbolic forms of healing.6.5.1 Psychosocial ProgrammesIntervention is generally described as psychosocial when it is built on the assumption that thereis a strong and important relationship between the individuals psychological status and the socialcontext. Psychosocial programmes address the psychological and general health needs of post-conflictpopulations by promoting and rebuilding the social and cultural context.The methods used in such programmes can vary, often including creative expression through artsand story-telling; the development and promotion of self-help groups; assisting with the completionof grieving and reburial rituals; an emphasis on re-training, education and re-skilling; the reintegration and reunion of individuals dislocated from communities and families; counselling and groupsupport; information dissemination and connecting people to resources; and at times simply focusing on creating a safe environment where those affected by conflict can meet, network, share experiences and focus on establishing new routines. While in many cases it may be sound to locate suchprogrammes within a community or at least within an ethnic group, experience from Sri Lanka showsthat the bringing together of women from all ethnic groups - and different sides to the conflict - oftenhelped women to face and give voice to their grievances, and turned the healing process into a moreproactive fight against the armed conflict that had victimized so many.Inger Agger highlights several levels at which psychosocial programmes were used in the formerYugoslavia. These included community development interventions, such as establishing schoolingand day care for refugee children; network-strengthening interventions, such as organizing knittinggroups; language courses or other types of occupational and educational activities; and mutual support-building interventions such as facilitating womens self-help groups and youth groups. Thesewere complemented by counselling and psychotherapy interventions at the individual, group andfamily levels.Obviously, not all levels of intervention may be appropriate in all contexts, but addressing traumaticsituations in this multifaceted way is generally found to be most effective.Imported Methods and the Local AgendaThere has been much criticism of the way in which some psychosocial programmes have been set upand foisted onto post-conflict societies, particularly in the former Yugoslavia and more recently inSierra Leone. Criticisms touch on the way international NGOs have shaped the local agenda with theuse of foreign methods of explaining the impact of conflict, specifically using terms like trauma orpost-traumatic stress disorder and disregarding local ethno-psychologies and the existing notionsof self which influence peoples suffering. Some international efforts have also increased local competition, giving rise to hierarchies of victimhood (see chapter 4) and resulting in a lack of coordinationand duplication between the international organizations themselves.82
To prevent this, guidelines for running psychosocial programmes have been published. It is worthreviewing the draft guidelines published by the Netherlands Institute for Care and Welfare, andthe WHOs 2000 Declaration of Cooperation: Mental Health of Refugees, Displaced and OtherPopulations Affected by Conflict and Post-Conflict Situations.6.5.2 Individual Counselling and Other InterventionsIndividual interventions characterized by culturally-specific counselling, or as part of a psychosocialprogramme, can be useful. This can include a range of individualized forms of psychotherapy, groupwork, family therapy, counselling or support from the community. These forms of support need notonly be professional services or psychotherapy. The case study at the end of this chapter is a verygood example of a voluntary, community-based initiative from Northern Ireland. In another examplefrom Northern Ireland, there is befriending: trained befrienders visit those who have lost relativesand develop a supportive relationship with them. Making space for individuals and groups to shareexperiences, if they so wish, can be beneficial in itself. This may entail a simple process of survivorsgathering and sharing (with or without a trained professional) in a familiar space, such as a community centre, religious building or other traditional meeting place.Over the past decade there has been a growing trend to develop trauma-specific counselling, oftengenerically referred to as trauma counselling. If done appropriately and in the relevant context, thiscan be helpful.This is not to say that individual interventions are more relevant or useful than other methods.Different individual methods have been useful in different contexts. In addition, individual interventions should not be equated with giving public testimony, as has been evidenced in some truth commissions (see chapter 8). Giving testimony at a truth commission can be useful in breaking downsome of the previous social barriers and silences - and for some individuals may even be the end-pointof a personal healing process - but, generally, individual, social and group interventions will be neededto address adequately the impact of extensive violent conflict.6.5.3 Training Local Communities in Psychosocial Support SkillsIt has become popular to involve (international) psychological health care professionals in the trainingof local people to help with trauma counselling. In some contexts this has been wholly inappropriate,and those trained have been left in difficult circumstances with little back-up support. The languageof traumatology has also been imported and local methods of dealing with suffering overridden. Asguidelines produced recently by the International Society for Traumatic Stress Studies noted: Thearrival of international agencies and their personnel has the potential of creating irreversible culturalchange . . . offering training without properly understanding the ongoing political process [and this]risks accusations of uninvited intrusion.That said, training programmes for local people that are built on a genuine appreciation of theinterplay between different methods and ideas, local and borrowed, can be valuable. These programmes seldom use the word trauma and certainly do not advocate trauma counselling as thepanacea. The Christian Childrens Fund (CCF) Angola project provides an interesting and usefulexample. The goal of the project was to improve the ability of adults working with children torecognize psychological trauma in children and help them come to terms with their experiences. TheCCF set up training for adults who were selected through ongoing dialogue with local communitiesand traditional leaders. The training courses were built on a bedrock of understanding developedthrough seminars and discussions at the local level, focusing on local customs and healing methods83
in the regions. They concentrated on a range of issues, including childrens psychosocial needs anddevelopment; the impact of war and violence on children; rites associated with death and bereavement; Western and traditional methods of assisting war-affected children; and non-violent conflictresolution. Seminars also focused on different interpretations of problems, such as sleep disturbanceor severe isolation and withdrawal. Through discussion, participants analyzed how best to help children using a mixture of traditional, ritual, expressive and Western methods. This resulted in traineesgoing into communities equipped with skills to encourage culturally-appropriate group activitiesamong the children they saw, such as play, singing, story-telling, drama and dancing.These methods served as vehicles for the construction of social meaning as children learned thesongs, myths and symbols of their community and ethnic group. The trainees also worked as agentsof change, encouraging communities to address the needs of children sensitively. Trainees were evendrawn into community rebuilding projects, which were identified as being central to the healingprocess. Over the course of the project, discourses evolved well beyond trauma. Over an extensiveperiod of time, new communities of practice were built.This experience is shared by many community-based or small-scale NGO interventions in thisfield. Experience suggests, however, that it is difficult to mobilize the required human and financialresources for such an ambitious programme all at once. It is also advisable to allow for a gradualexpansion of activities in order to enable the participants themselves to play a decisive role in definingactivities and implementing them.6.5.4 Self-Help Support GroupsSelf-help groups offer emotional or practical help to their members. Members generally share a common problem and pursue their goals through mutual aid. The groups are normally member-led.Self-help groups are common in many societies, typically forming around those who have a common illness, addiction and/or disability. It has also become fairly commonplace for such groups todevelop in conflict situations. They are generally made up of survivors of political violence and thefamilies of those killed or disappeared. They can be instrumental in healing and reconciliation.Born out of conflict situations, they are often referred to as victim or survivor groups. Perhapsthe best known is the Mothers of the Plaza de Mayo inArgentina. Similar initiatives, however, have been seenSelf-help groups can be instrumenacross the world in societies as diverse as Sri Lanka,tal in healing and reconciliation.Rwanda, Chile, Northern Ireland and South Africa (seebox 6.2).Self-help victim support groups generally serve as: a forum for joining together and recognizing that others have had similar experiences and havecommon problems; a place for friendship, companionship and emotional support; a forum where first-hand experiences of support outside the group through other agencies can beshared and broader coping techniques exchanged; a safe place to recount events and break the cultures of silence that are common in conflict situations; a possible vehicle for social change and for lobbying and advocacy to get authorities to address theirand other victims needs; a means of raising awareness about exclusion and the forgotten victims of a conflict; a forum for networking about how to access resources, health care, support services, housing, employ84
them. If a spirit is not honoured with a funeral and the umbuyiso ritual completed, it can becomerestless and angry, bringing bad luck to the family and the community. Clearly, the symbolic value ofthe burial and the subsequent rituals were vital to any sense of healing.This example reinforces the importance of processes such as investigations, prosecutions and commissions of inquiry in post-conflict societies which can uncover the facts about what happened toindividuals during the violence, including, for example, the locations of graves. However, it alsohighlights another important point: the process of healing occurs not through the delivery of anobject - a pension, a monument or an exhumation - but through the process that takes place aroundthis, such as the reburial ritual.That said, symbolic forms of healing, like other strategies for healing, cannot be separated outcompletely from the broader context. Symbolic acts can place the survivors in a difficult position.Acknowledgement, apology, recognition and even substantial material assistance can never bring backthe dead or be guaranteed to alleviate all the psychological pain suffered by a survivor. The essenceof the problem of making amends for past violations is thatthe amount of distress, hurt, injustice and anger the survivorIf symbolic acts are not linkedis personally struggling to come to terms with is immeasurwith the delivery of truth, justiceand social change, they run theable.danger of being seen as a stratAlso, in accepting the reparation or apology, the survivoregy to buy off the survivors.may feel as if his or her actions are finally putting their lovedone to rest - a step he or she may understandably feel ambivalent about taking. Furthermore, if symbolic acts are not linked with the delivery of truth, justice andsocial change, they run the danger of being seen by the survivors as a government strategy to close thechapter of the past prematurely, leave its secrets hidden and buy off the survivors. It is in these casesthat survivors or families of victims talk of reparations as a form of blood money. If full truth andjustice are not achieved, anger and other emotional responses from victims (e.g., refusing to acceptreparations or protesting about what is granted) can be legitimately anticipated.6.6 Concluding RemarksStrategies for healing are integrally linked to the broader social context and interface with, and arepart of, any broader process aimed at reconciliation. At the same time, healing is not one-dimensionalor easily attained, and it is as much about what already exists within communities and cultures asabout learning from other approaches or considering (if appropriate) the methods outlined in thischapter.The journey from victim to the status of survivor is long and complex. In South Africa somemembers of the Khulumani Group (see box 6.2) say they will only use the word survivor when theyfeel that they have been properly acknowledged. In the CCF programme in Angola the term waraffected children has been used to explain the position of those affected, rather than words foreignto the context such as victim or survivor. The language used to explain the impact of extremeviolence belongs to those directly affected. In this respect, it is the meaning of the experience thatis most important. Appropriate and culturally relevant healing strategies can provide the context inwhich alternative meanings to the experience of extreme trauma can be found.If a broader concept of healing is used, in which the individual is not treated as separate from thesocial context, then the shift from victim to survivor is as much a question of social justice as aquestion about any personal process the individual undertakes. Summerfield argues that: History86
has shown that social reform is the best medicine; for victims of war and atrocity this means publicrecognition and justice. Health and illness have social and political roots: post-traumatic reactionsare not just a private problem, with the onus on the individualto recover, but an indictment on the socio-political forces thatSocial justice is a foundationproduced them.stone of lasting healing.Social justice is a foundation stone of lasting healing.Reconciliation processes can, in some instances, deliver socialjustice, and this will invariably aid the healing process. Either way, though - and much to the distressof people who want those directly affected by political conflict to move on as soon as possible - itis certain that genuine healing is protracted and requires sustained personal, community and politicalattempts to integrate the suffering of the past into the present.
BackgroundThe Conflict in Northern Ireland
The armed conflict that erupted in Northern Ireland in the late 1960s was only the latest manifestation of a centuries-old antagonism between Ireland and England. A partial resolution of thisage-old quarrel had been attempted in 1921, when Britain conceded a degree of independence towhat became the Irish Republic, but allowed the six counties of north-east Ireland to opt to remainwithin the United Kingdom. In the 17th century those counties saw the concentrated settlementof hundreds of thousands of English and Scottish incomers - all Protestants, in contrast to thepredominantly Catholic Irish population of the time. The north-east was established as a provinceof the UK under the title Northern Ireland, with its own parliament, administration and policeforce (the Royal Ulster Constabulary, RUC). That parliament, with a fixed 2:1 Protestant: Catholicmajority and a heavily armed, overwhelmingly Protestant police force to enforce its rule, settledinto a 50-year pattern of anti-Catholic discrimination, using a combination of fear and heavyhandedness to maintain control.Catholic discontent in Northern Ireland manifested itself in political organization around the causeof Irish nationalism - the wish to reunite the north-east with the Irish Republic - and in a sporadicallyviolent campaign led by the Irish Republican Army (IRA). Control, however, remained with theProtestants, organized politically around Unionism - the wish to maintain the union with Britain and backed up on occasion by British military strength. It is important to note that, although thetwo communities in Northern Ireland are still identifiable as Protestant and Catholic, because of the17th century heritage, the conflict can only properly be understood as one over land, politics andpower. While sectarian attitudes certainly remain, and have been fuelled by the conflict, few peoplein Ireland are arguing about the right way to worship a Christian God. The religious labels act asbadges of identity for the two culturally distinct communities, not as indications of the core of theconflict.Five decades of British attempts to ignore the simmering situation in Northern Ireland finallyended when Catholics took to the streets in the mid-1960s, inspired by the US civil rights campaign,to demand equal treatment. Robust repression of the protesters by the RUC resulted in the reinvigoration of an almost moribund IRA and intervention by the UK, which sent in the army. Eventually,in 1971, Britain suspended the Northern Ireland Parliament and implemented direct rule fromWestminster. That set the pattern for the next 25 years, as the paramilitary IRA fought an increasingly sophisticated guerrilla war against the British Army and the RUC and as retaliatory Unionistparamilitaries were formed (calling themselves Loyalists). The war was mostly fought in NorthernIreland, but the IRA also launched sustained bombing campaigns against military and economictargets in Britain, and the Loyalists occasionally attacked across the border in the Republic. Morethan 3,000 people died during the period.The war never completely destroyed Northern Irelands infrastructure or completely preventedsome semblance of continued normality, but by the 1990s a whole generation was reaching adulthood
attack on the individuals entire community. It was also essential when designing LIVE to recognizethe very diverse political and cultural backgrounds from which Northern Irish participants would becoming. Some of the victims were relatives of combatants, both paramilitary and state, while otherswere relatives of civilians who had been caught in the crossfire. Even civilians have their own politicalvalues which, in the Northern Irish context, are likely to align them to some degree with one of thetwo main conflicting communities.In Britain most of the casualties of the three decades of violence were army personnel, leaving alarge number of grieving families. In the vast majority of cases their suffering had been caused by theactions of Republican paramilitary groups. There had also been civilian casualties.In the Republic of Ireland the direct casualties from the conflict were much fewer, but included thevictims/survivors of actions of mainly Republican paramilitaries and state security forces. The onlyformally organized group of victims in the Republic of Ireland was united by a shared tragedy in thatthey were all bereaved on the same day in 1974 by a series of Loyalist paramilitary bombings in twocities in the Republic. This particular group is involved in legal action concerning possible Britishsecurity services complicity in the bombings, and so chose not to engage with the LIVE programmein case its involvement might prove detrimental to the legal proceedings.Objectives of the LIVE Programme
ParticipationIn Northern Ireland, violent deaths have been well recorded by both state bodies and NGOs.Additionally, many victim/survivor groups have developed over the years. Some provide support andpsychological services. Others adopt a more political or campaigning approach to the need for truthand recognition, and are often perceived as aligned to one or other community. In Britain and theIrish Republic, in contrast, much less attention has been given to victims of the conflict, and thereis a serious absence of accurate records. This fact, which demonstrates to some degree a lack ofacknowledgement of the suffering of victims/survivors, was an obvious obstacle to the delivery of theprogramme.An important channel for recruiting participants to the LIVE programme was advertisementsplaced in national daily newspapers. In recruiting participants it was important to define the termvictim in such a way as to include all who have suffered as a result of the protracted social conflict.To define it more narrowly would almost certainly have excluded some participants from some sections of the three targeted jurisdictions.91
The initiative focused on the issue of relationship-building between some of the most vulnerablemembers of the communities which have caused lasting hurt to each other and, as a result, havedeveloped very negative perceptions of each other. The LIVE programme was established to createopportunities for relationship-building within and between the victims/survivors from the threegeographical regions outlined above. The basic belief which inspired this was that, regardless of political affiliations or the affiliations of the deceased family member, the loss of a loved one in the conflictor an injury caused by it is a common denominator which should to some degree transcend sectarianor political differences.The primary objective of the LIVE programme was therefore to build relationships between victim/survivor communities in the three jurisdictions which represent the main opponents engaged in theconflict. The secondary objective was to facilitate dialogue between former combatants in the conflictand those victims/survivors who felt ready for such engagement.
It was the participants themselves who designated themselves as victims. A small percentage of thetotal number had been physically injured as a result of the conflict, but the vast majority had sufferedbereavement. In total, about 20 victims each from both Britain and the Republic of Ireland, and60 in total from both Protestant and Catholic communities in Northern Ireland, participated in theprogramme. Participants were approximately 70 per cent women and 30 per cent men, about 80 percent being over 40 years old.StructureThe experimental programme was based upon 10 three-day workshops held over a period of 12months, where victims/survivors told their stories of suffering and heard each others. There werethree main components in each workshop: structured opportunities for discussion and the telling of participants stories; inputs from professionals and therapists on issues directly related to managing post-traumatic stress;and social activities aimed at allowing participants the chance to build relationships and share experiences in a less formal environment.Stage 1: Single-Identity WorkshopsThe first three workshops were single-identity events, that is, each involved victims/survivors fromone region only. This allowed participants to begin to trust the Glencree Centre, an organization withwhich most had had no previous contact. The fact that participants came from the same jurisdictiongave them a sense of safety and familiarity, which helped in building a group commitment to theLIVE programme. These workshops also allowed Glencree personnel to hear and make provisionfor some of the expectations and fears of the participants. The objectives of the programme wereexplained to participants. The possibility of moving on into a dialogue process between victims andperpetrators was also outlined as an option for those participants who felt they might be ready forsuch a step. These workshops were poorly attended, with an average of 15 participants in each, butthose who attended came away feeling very positive about the experience.Stage 2: Bilateral and Multilateral WorkshopsThe Glencree Centre then hosted seven workshops for victims/survivors, either bilateral (involvingtwo regions) or multilateral (involving all three regions), with members drawn from the participantsof the initial single-identity workshops. Because of their very positive experience of stage 1, theseparticipants encouraged more victims/survivors to participate at the second stage. Consequently,numbers rarely fell below 30 per workshop at this point.By the time of the third multilateral workshop, participants had built sufficient trust in eachother and in the Glencree Centre for some now to ask for the opportunity to hold a dialogue withrepresentatives from the organizations which had caused their suffering. These dialogue sessionswere organized as part of the formal sessions within the workshop programme and involved formercombatants from Republican paramilitary organizations. Given that they involved both a personaland a political dynamic, it was thought best that they should be facilitated by Glencree staff withboth political and psychological expertise and sensitivity.VictimCombatant DialogueAs part of the bilateral stage of the LIVE programme, a number of dialogue sessions took place92
between former paramilitary combatants and victims/survivors. Each session lasted roughly fourhours. The following account focuses on one such dialogue, which took place between a former IRAmember, who has since become an elected politician, and 28 victims/survivors, most of whom hadsuffered as a result of IRA violence.Trust had been built with and between the different groups of victims in the earlier stages of theprocess. In order to engage a former IRA combatant, a series of preparatory meetings were held toreassure him about the aims of the work and the procedures involved. A previous relationship betweenhim and the Glencree Centre helped allay any fears, some of which were political: he was interestedto know who would hear of this dialogue, whether it could be used by his political opponents toundermine him, or indeed whether his own community might view his participation as betrayal.The dialogue session started with the facilitator explaining the process and then inviting participants to introduce themselves briefly, to allow the former IRA combatant to realize the diversity ofexperience within the group. Then the victims/survivors were invited to ask questions of the formercombatant or make observations and comments. No restrictions were placed on the dialogue. Oneof the victims/survivors started by praising the former combatant for his bravery in coming to meetthem. This was a most fortunate and positive way to start the workshop, as it helped to create anappropriate environment for constructive dialogue by allowing the former combatant to be lessdefensive. The facilitator then praised the participants for their bravery in inviting the dialogue. Theformer combatant was accompanied by his wife, who offered him support throughout in the form ofphysical contact and other gestures.Although neither the victims/survivors nor the former combatant had had experience of this type ofdialogue before, there was a rapid engagement. It was as if, on both sides, they had been hangingon to unanswered questions and unresolved uncertainties, in some cases for many years, waitingfor the right opportunity. The composition of the group of victims/survivors was established by theGlencree Centre to create a balance of experience. This proved to be more helpful to the processthan anticipated. Some of the participants had been bereaved not by the actions of the IRA but bythe actions of the British Army. They became a kind of bridge between the former combatant, withwhom they shared some political perceptions or aspirations, and the other victims/survivors whohad suffered IRA violence, with whom they had now established a strong relationship through theprevious multilateral workshops.The questions came in the form of the detailed stories of the suffering caused, mainly but notexclusively by IRA activity. The retelling of the stories brought much grief with it, from both thestory-teller and other members of the group. The former combatant listened attentively and carefully.All the stories were followed by questions, ranging from the general, such as, Why do you thinkviolence will achieve your desired outcome? to the more specific, such as, Why him? or Wheredid you take him after the abduction?In response, the former combatant was able to answer some of the general questions with hisexplanation of the historical causes of the conflict, which he knew had to be conveyed with sensitivity and his natural conviction. His answer to the more general questions appeared to be welcomedin particular by the victims from Britain, who had little or no understanding of the causes of theconflict. It appeared that they were gaining an understanding for the first time of the IRA perspectivethat this conflict was a war against the British. While the former combatant offered a sincere apologyfor the casualties of his actions, he could not apologize for the war itself which was, he believed, ajust war.The more specific questions were more difficult for the former combatant to answer, as he simply
did not have full information on all the actions ever carried out by the IRA. However, he was able tooffer some insights into the way the IRA might have been thinking at the time of particular actions,and he undertook in one case to try to find out more information.The former combatant was then invited by the facilitator to tell his own story, and was asked tofocus on his total life experience in order that victims/survivors might understand more clearly hismotivation for engaging in the conflict. He explained the injustice he had experienced as a youngman, which provided his motivation to engage in the conflict. He also explained his two decades inprison and the consequences of that for his family and community.The engagement for the most part was respectful and, while it was filled with emotion, outburstsof anger were few. The word forgiveness was not mentioned in the workshop by either the victims/survivors or the former combatant. There was, however, a clear sense of a growth of understandingby both parties of each others sacrifice.Two of the victims/survivors left the room at different stages as they did not feel comfortablewith the dialogue. Therapists accompanied them to offer support. When the session was over, someparticipants felt the need to continue their discussions in a more private and even less formal one-toone context. These discussions mainly comprised expressions of reciprocal gratitude between combatant and victim in relation to the value of the dialogue and the bravery of each person who engagedin it.Following this dialogue session, there was a reflection session for the participating victims/survivors,which allowed the encounter to be fully processed. In addition to verifying the well-being of theindividuals involved, it also allowed many of the learning outcomes which follow to be identified. Theexperience of the group was overwhelmingly positive and, in addition to the essential conversationswhich took place within the session, participants were generally keen to continue this interactionfurther. We know that discussions on a one-to-one basis between the former combatant and thevictims have continued outside the remit of the LIVE programme.This encounter created the conditions through which a subsequent dialogue took place betweenone of the victims/survivors of the conflict and the former IRA combatant who had killed her father.Learning Outcomes1. This programme was designed for victims/survivors of the conflict, and at the time it wasdesigned did not include former combatants. Preparation and support mechanisms for victims/survivors were put in place within the programme, but little support was provided to look after thepsychological needs of the former combatant. This is now being addressed through a planned parallelprogramme for former combatants.2. An integral part of the LIVE programme is an ongoing telephone support service. Great demandswere made on this, following the victimcombatant session.3. Participation in such dialogue must be completely voluntary. In addition, care must be takennot to imply in any way that any victims/survivors who do not engage in dialogue are either weak orresistant to reconciliation. Everyone involved must realize that, while the opportunities for dialogueexist, no one is a bad person if he or she does not feel ready to participate. In reality, victims/survivorsencouraged each other to participate.4.94
The conclusion that this dialogue was a success is based on participants views and comments,
which suggest that, for most, their pain is at least a little easier to manage after the encounter.5. Inter-group dialogue is to be preferred, rather than one-to-one dialogue. It is less threatening forall and also allows a diversity of life-experience to be shared, rather than just that of a victim/survivorand a combatant.6. The staff involved in the delivery of the LIVE programme come from the same communities asboth the victims/survivors and combatants. It is important therefore to remember that, despite theirbest efforts, staff are directly affected by this type of reconciliation dialogue. They therefore have acapacity to impact on the process both positively and negatively. It is for this reason that the GlencreeCentre often reminds itself that it does reconciliation work with and not to people.7.
Activities have begun, with the Glencree Centre doing some intensive work with a small core groupwho will in turn recruit other combatants from their groupings. When relationships have been established between these combatant groupings, it is the intention to introduce those of them who feel itis appropriate to groupings of victims/survivors from the LIVE programme.Much is already being learned from the development of these two parallel programmes, one withvictims/survivors, the other with combatants.First, the fact that many combatants have also been bereaved or injured renders strict delineationsbetween the two groupings impossible. It is now even more important than before that the GlencreeCentre allow people non-judgementally to make their own definitions of themselves as survivor/victim and/or combatant.Second, the combatant participants, although divided into several categories above, can also beconsidered as belonging to one or other of just two categories - governmental and paramilitary. It isvital to take these categories into consideration, as there are different cultures, different structures anddifferent personal motivations for each which can impact on the way in which they view participationin the programme. While members of government security forces have come forward to participateas individuals, the authorities seem to have problems with this kind of reconciliation activity. Forexample, governments can be held responsible for violating the European Convention on HumanRights but paramilitaries cannot. This makes the authorities very wary of the possibility of litigationby victims who could use the information gained in the dialogue to pursue a case through the legalsystem.95
Since the events described here, the Glencree Centre has received EU funding for workshop activitiesto build relationships between the various different groups of combatants engaged in the conflict.The combatant groupings involved are: republican paramilitaries - the IRA and the Irish National Liberation Army (INLA); loyalist paramilitaries - the Ulster Defence Association (UDA) and Ulster Volunteer Force (UVF); the former RUC (Northern Ireland police force) (now the Northern Ireland Police Service); the British Army; the Irish Defence Forces (state army of the Irish Republic); and the Northern Irish Prison Service.
Third, great differences exist in the motivation for involvement in the conflict between government and paramilitary combatants. A paramilitary often becomes involved in violence because of anemotional reaction to real or perceived injustice. A soldier or police officer, in contrast, often treatsthe work as a profession, and many have little say in the selection of the particular field of conflict inwhich they find themselves. It is, therefore, a fair assumption that, if the Irish peace process fails, ahigh percentage of paramilitaries will return to armed struggle, whereas former government combatants, if still serving, will be directed to the next arena of conflict.Concluding RemarksIn general, the process of reconciliation can be very painful as well as rewarding. As one former combatant remarked after a dialogue session with a group of victims/survivors: Prison was easy comparedto that encounter. There are many reasons, both genuine and otherwise, for not participating insuch initiatives. One argument often put forward is that reconciliation dialogue is only appropriateand effective in a post-conflict environment. There is certainly no doubt that reconciliation workhelps significantly to consolidate a settlement already reached. But this kind of work can also be veryeffective at an earlier stage by helping to heal relationships, which in turn creates a more auspiciousatmosphere in which to reach a settlement. Indeed, NGOs in Northern Ireland have been developing a range of reconciliation activities aimed at relationship-building and dialogue since the early1970s. The personal risks to participants working in a pre-settlement context, however, will usuallybe considerably higher, and might create an added barrier to full, inclusive participation.Most conflicts around the globe are civil conflicts in which state and non-state combatants engage.This particular model of reconciliation dialogue could be applied to many of those situations, andwill produce positive outcomes, provided that the approach is: inclusive of all opinions and constituencies to the conflict; non-judgemental; voluntary; and supportive of all at the psychological level.The Glencree Centre is now examining how best to take the healing and relationship-building thathas been witnessed through the victim/survivor-combatant dialogue programme at the personal leveland produce an impact at the broader community level. In partial response to this challenge, some ofthe interactions were recorded for broadcast in 2002, and an annual convention has been establishedwhere the public can hear the stories of victims and combatants generated from the programme.
Justicelu c h u yse
Reconciliation and justice are almost twin notions. Many people argue that the search for peacefulcoexistence, trust, empathy and democratic power sharing demands that justice be done - that inone way or another the crimes of the past are acknowledged and punished. But justice has manyfaces:
The tendency in thinking about justice, especially in the West, is to focus on the retributive dimension. Central to this view is the idea that perpetrators should not go unpunished - that they shouldpay a price. This chapter reviews the potential role of criminal justice in reconciliation processes.Practitioners in the field argue that there is no peace and no reconciliation without punitivejustice. Sceptics have raised four general objections to the use of trials and criminal prosecutions indealing with a violent past: Political circumstances may mean that retributive justice is simply not possible as a post-conflictstrategy. Retributive justice tends to ignore or sideline the real feelings and needs of victims. Material obstacles can seriously hinder the delivery of adequate justice. Trials have the potential to thwart reconciliation processes.Justice has many faces.In cases where trials may not be possible or may be counterproductive to reconciliation, alternatives are amnesty, mechanismsof restorative justice, truth-telling and reparation. Amnesty and restorative justice are discussed insections 7.2 and 7.3. Truth commissions and reparations are the subjects of chapter 8 and chapter 9.7.1 Retributive Justice: the Promise, the Practice and the RisksThis section of the chapter poses four questions: Why is it that criminal prosecution in post-conflict societies can be conducive to reconciliation? How is retributive justice to be organized in a transitional context? Under what circumstances can trials and other forms of punishment obstruct reconciliation processes? What are the available alternatives?7.1.1 The Potential Role of Retributive Justice in the Reconciliation ProcessFor reconciliation to stand any chance in the immediate aftermath of a civil war or a regime transition, it is crucial to limit the danger of renewed violence and terror. If the fire re-ignites, coexistence97
(the first step in reconciliation) will be further away than before. Reconciliation also involves thegradual building of self-confidence and mutual trust, and implanting a culture of human rights anddemocracy. Some say retributive justice is the obvious instrument to realize both these conditions.Supporters of retributive justice have identified the following list of its possible benefits, which mayhelp policy makers in assessing its potential contribution to reconciliation:Avoiding unbridled private revenge. If there is no criminal prosecution at all, victims may be temptedto take justice into their own hands: the risks then are vigilante justice, summary executions, spiralsof revenge and so on. In addition, such self-help justice can trigger social and political disturbance.Refraining from prosecuting may also encourage conspiracy theories according to which the leadersof the new regime are suspected of collusion with one side in the former conflict.Protecting against the return to power of perpetrators. In the first months after a violent conflict hasended, the survival of a newly-established regime depends on swift and firm judicial action againstthose who are responsible for the gravest violations of human rights. This is seen as a necessaryprotection against sabotage from within and as a way of achieving some minimal physical security.Fulfilling an obligation to the victims. Advocates of punitive justice argue that retaliation is exactlywhat most victims want. It serves to heal their wounds and to restore their self-confidence becauseit publicly acknowledges who was right and who was wrong and, hence, clears the victims of anycriminal labels that were placed on them by the authorities of the past or, indeed, by rebel groups orthe new authorities. Only trials, the argument runs, lead to a full recognition of the worth and dignityof those victimized by past abuses. A post-conflict society thus has a moral obligation to prosecuteand punish the perpetrators.Individualizing guilt. Criminal courts establish individual accountability. This is crucial in theeradication of the dangerous perception that a whole community (e.g., the Serbs, the Muslims,the Hutu, the Tutsi) is responsible for violence and atrocities. This idea of collective guilt is oftenthe source of negative stereotypes, which may provoke more violence in turn.Strengthening legitimacy and the democratization process. Prosecutions, it is said, also advance longterm democratic consolidation. Retributive justice, as a sort of ritual sacrifice and purification process, paves the way for an ethical and political renaissance. It also consolidates the values of democracy,instils public confidence in the capacity of the new regime to implement these values, and encouragesthe population to believe in them. Failure to prosecute, on the other hand, may generate in the publicfeelings of cynicism and distrust towards the political system and its values. This is precisely whathappened in many newly-democratized Latin American countries.Breaking the cycle of impunity. Prosecutions are seen as the most potent deterrence againstfuture abuses of human rightsand the most effective insurBox 7.1: How Retributive Justice Can Help Reconciliationance against sustained vio avoiding unbridled revenge; individualizing guilt;lence and atrocities. They can protecting against return to power of strengthening legitimacy and processsuccessfully put an end toperpetrators;of democratization; andthe vicious circle of impunity fulfilling an obligation to the victims; breaking the cycle of impunity.that is at the origin of humanrights abuse and injustice inmany parts of the world. This argument has been heard in several countries that have emergedfrom painful conflicts. It is also behind the establishment of the international criminal tribunals forthe former Yugoslavia and Rwanda at The Hague and Arusha, respectively, and the creation of thepermanent International Criminal Court (ICC).98
The legal foundations of such a duty are found in an array of UN conventions and in the principle ofuniversal jurisdiction (see subsection below on universal jurisdiction).At the practical level, international jurisprudence takes the following forms: ad hoc tribunals; the International Criminal Court (ICC); and national trials based on universal jurisdiction.International ad hoc tribunals. The UN Security Council, confronted with the atrocities on the territory of the former Yugoslavia and in Rwanda, has established two international criminal tribunals.The International Criminal Tribunal for the Former Yugoslavia (ICTY) was created in 1993 byUN Security Council Resolution 827. It was mandated to prosecute individuals allegedly responsiblefor violations of international humanitarian law during armed conflict in the territory of the formerYugoslavia. It is based in The Hague, Netherlands.The International Criminal Tribunal for Rwanda (ICTR) was established in 1994 by UN SecurityCouncil Resolution 955. Like the ICTY, the tribunal for Rwanda was tasked with prosecuting individuals responsible for genocide and crimes against humanity committed in Rwanda between 1January and 31 December 1994. The ICTR also has jurisdiction for prosecuting Rwandan citizenswho committed such violations in neighbouring states. Its proceedings are held in Arusha, Tanzania.Both tribunals have the same three-section structure. The three arms are the Judges Chambers,the Office of the Prosecutor and the Registry. The judges are divided into two trial courts of threejudges each and a five-judge appeals chamber. The judges are responsible for issuing indictments andhearing and deciding cases. The UN General Assembly elects the judges serving on the tribunals. TheOffice of the Prosecutor has the responsibility for investigating alleged crimes, framing indictmentsand prosecuting cases. He or she is appointed by the UN Security Council and is assisted by a DeputyProsecutor and other staff. The Registry is the administrative division of the tribunal and performsa wide array of functions, including recommending protective measures for witnesses, providingcounselling for victims and handling the appointment of defence counsel.Although the ICTY and the ICTR are separate entities, they share some of the same personnel,such as the five appellate judges and the Chief Prosecutor.International ad hoc tribunals give a country the chance totake strong, concrete steps towards building a society based onThe ICC will have jurisdictionthe rule of law through a process that is seen to be fair andover the most serious crimesof concern to the internationallaw-based. The criticism of the post-World War II Nurembergcommunity, such as genocide,trials - that they imposed norms on the accused and victorscrimes against humanity andjustice on the accused retroactively - no longer applies. In thewar crimes.intervening years, the notion of individual responsibility forwar and related crimes has become internationally accepted.Additionally, as with Rwanda and Yugoslavia, an international tribunal under the UN need not becontrolled by the victors, and therefore cannot be accused of seeking revenge.A new departure in international jurisprudence is the creation of hybrid nationalinternationalcriminal courts. In the case of Sierra Leone, the UN Security Council has set up, at the governmentsrequest, a tribunal that is a mixture of international and Sierra Leonean law and judges. The UNSecretary General appoints the foreign judges. The (planned) international court for Cambodia thatwas to prosecute Khmer Rouge leaders would have consisted of three Cambodian and two foreignjudges. However, many problems arose at the implementation phase of this special court, and in100
February 2002 the UN decided to abandon all plans. It was no longer sure that the Cambodianpolitical elite wanted to respect the independence and impartiality of the proposed tribunal (see thecase study following chapter 3).Box 7.2: Questions and Answers about the ICCWhat is the ICC? The InternationalCriminal Court is a permanentinternational tribunal which will tryindividuals responsible for the mostserious international crimes. Onehundred and sixty countries attendeda UN-sponsored conference in Romein 1998 to draft a treaty establishingthe ICC. After five weeks of intensenegotiations, 120 countries votedto adopt the treaty. Only sevencountries voted against it (includingChina, Iraq, Libya and the UnitedStates) and 21 abstained. For thecourt to be set up, 60 countriesneeded to ratify the treaty. The courtwas established on 1 July 2002and is based in The Hague, theNetherlands. By 5 August 2002, 77countries had ratified the RomeStatute.What crimes will the ICC prosecute?The ICC will prosecute individualsaccused of genocide, war crimes andcrimes against humanity, all definedin the treaty setting up the court.It will help to ensure that theseserious crimes, which have longbeen recognized by the internationalcommunity, no longer gounpunished because of theunwillingness or inability ofindividual countries to prosecutethem.Who can be brought to trial beforethe ICC? The ICC will havejurisdiction over crimes committedby the nationals of governmentswhich ratify the treaty or in theterritories of governments whichratify it. It can try any individualresponsible for such crimes,regardless of his or her civilian ormilitary status or official position.What are the rights of those accusedof a crime by the ICC? The ICCtreaty contains a detailed list of therights that any accused person shall
The International Criminal Court. The establishment of a permanent international criminal court(the ICC) under the Rome Statute of July 1998 is another illustration of the emerging internationalconsensus on the issue of transitional justice. It will effectively supplant the temporary mechanismsused since World War II to prosecute crimes against humanity, such as the Nuremberg and Tokyowar crimes tribunals and the ad hoc UN tribunals for Rwanda and former Yugoslavia. The ICC willhave jurisdiction over the most serious crimes of concern to the international community, such asgenocide, crimes against humanity and war crimes. Box 7.2 presents the key issues of the ICC.Trials based on universal jurisdiction. The perpetrators of genocide, torture and other crimes againsthumanity are generally brought to justice by either domestic or international tribunals. There is,however, a growing tendency to accept the so-called rule of universal jurisdiction. This principleentails that the prosecution of genocide and related crimes is achievable by and in every state, no matter where the crimes were committed and regardless of the nationality of the victim or the offender.Various countries have incorporated the rule of universal jurisdiction into their national criminallegislation. This development led to the Spanish indictment of former Chilean President Pinochet, tocomplaints in Belgium against Israeli Prime Minister Ariel Sharon, and to the conviction by a Swisstribunal of a Rwandan official who was involved in the 1994 genocide. According to some observers,further diffusion of the principle will be a major step in the direction of global justice.Administrative Justice: Disciplinary Measures Outside the Criminal Court SystemDisqualification (or lustration) of agents of the secret police, of military personnel, judges and otherfunctionaries is an alternative way to address the question of punishing those who are responsible foraggression and repression. Such non-judicial disciplinary measures are usually meted out by administrative agencies. They come in various forms: political disqualification, for example, loss of suffrage; barring high-ranking officials from public service in the police, the army and the state administration; and softer types of penalty for senior officials, such as forced early retirement or transfer to less strategicposts.Political and professional disqualification was the preferredtransitional justice measure in the Central European statesafter 1989, often as a way to side-step criminal prosecution.It involves intricate vetting and screening operations which, ashas been demonstrated in post-communist Europe, tend to become highly politicized. Leaders ofpolitical parties, for example, in Poland, have manipulated screening legislation to pin suspicion onrivals and eventually to expel them temporarily or permanently from public office.
Political RisksThe end of a civil war or of a period of violent repression creates an intricate agenda - rebuilding thepolitical machinery and the civil service, guaranteeing a minimum of physical security, healing thevictims, repairing the damage inflicted to them and so on. Dealing with the perpetrators, eventuallyby means of criminal prosecution, is only one of many challenges. More often than not it will beimpossible to tackle all tasks simultaneously. Choices have to be made. The place of justice in general,and of trials in particular, on the post-conflict agenda depends on the particular conjunction ofpolitical, cultural and historic forces. There may be legitimate arguments that other problems andneeds are more important and/or more urgent than seeking justice through trials.In addition, prosecutions are ambivalent in certain transitional contexts. They can have highlydestabilizing effects on a peace settlement or a fragile shift to democracy. In fact, precisely to avoidsuch an outcome, Latin American policy makers throughout the 1980s deliberately opted againsttrials. Refusal to prosecute appears to be based on the argument that harsh punishment may have oneor more of the following negative results:Destabilizing a fragile peace settlement. Former military leaders may respond to the threat of prosecution by trying to reverse the course of events with a coup or a rebellion. The risk of a destabilizing backlash especially haunted the young democracies of Latin America in the 1980s and 1990s.Immediately after he came to power, President Sanguinetti of Uruguay, for example, rejected a punitive justice operation with the following argument: What is more just - to consolidate the peace of acountry where human rights are guaranteed today or to seek retroactive justice that could compromisethat peace?. The general attitude has been that there is a sleeping lion in the background, whichtrials will inevitably provoke,Box 7.3: Retributive Justice: Priority Questions and Political Risksthus risking a return to military dictatorship. Other points on the agenda are more It can provoke subcultures andProvoking hostile subculturesimportant and/or more urgent.networks, hostile to democracy.and networks. A prolonged It risks destabilizing a fragile peace. It may have crippling effects ongovernance.physical and social expulsionof certain sections of the population, based on criminal court decisions, may obstruct democratic consolidation by driving theconvicted perpetrators into social and political isolation. This in turn could result in the creation ofdestabilizing subcultures and networks which in the long run will become hostile to democracy.Causing crippling effects on governance. The viability of a post-conflict state depends also on its efficacy.A far-reaching purge of administrative and managerial staff can have crippling effects on governanceand endanger the vital political and economic development of the country. Prudent considerations ofthe problematic consequences of large-scale dismissals from the civil service and from high-level posts inindustry have been heard regularly in post-communist Central and Eastern Europe.Other Shortcomings and RisksEven where the establishment and operation of prosecutions is appropriate to the context, a number ofreasons may still be found not to prioritize retributive justice in a reconciliation policy. Constrainingfactors tend to appear in one or more of the following ways: The general deficiencies of retributive justice are accentuated. Material obstacles may prevent the adequate operation of the criminal justice system of a postconflict society. Post-transition trials may directly impede other routes to reconciliation.103
General Shortcomings ofRetributive Justice
remand since the summer of 1991 and will undoubtedly continue to be so for years to come. Somewill eventually be acquitted for lack of evidence after an extremely lengthy captivity. The same situation exists in Rwanda. By the end of 2000, six years after the genocide and with some 130,000arrested suspects, the Rwandan tribunals had only pronounced 5,200 verdicts. In 2001 no morethan 1,200 new cases were dealt with. (Of these 6,400 individuals judged, approximately 25 per centwere acquitted.) The saying Justice delayed is justice denied is certainly very applicable here. Andnothing is more damaging than ineffective justice.Shortcomings and Risks in a Context of TransitionCriminal prosecutions may also directly block or even reverse a reconciliation process. In transitionalcontexts, ranging from Spain in the 1970s to Cambodia in the 1980s to Mozambique in the 1990s,civil and political leaders have sometimes consciously opted not to try to bring perpetrators to court,precisely out of fear that prosecutions would endanger reconciliation initiatives. The following reasonshave been given:Post-transition trials may be emergency justice. The sooner trials start after the end of a conflict, thebigger is the danger of emergency justice being dispensed. The political and social climate is not yetwell suited to a scrupulous sorting of all the levels of responsibility for the abuses of the past, and thecriminal justice system is therefore incapable of dispensing fair and effective rulings. Consequentlyrash and hurried trials can actually add to injustice and inequality, especially if those who are triedfirst receive the most severe punishment, even if they are not the worst offenders. The resultingresentment will become an obstacle to reconciliation initiatives.Post-transition trials may violate rule-of-law norms. Retributive justice after violent conflict involvesa number of decisions that may trespass on rule-of-law norms and human rights. A key questionis how to punish persons for activities that were approved, legalized and encouraged by those inpower during a civil war or a cruel authoritarian regime. Political leaders may feel the need to issueretroactive penal legislation, thus breaking the rule that no conduct can be held punishable unless it iscovered by a law that existed before the offence was committed. Or they may, with good intentions,renew the statute of limitation once it has run out because major perpetrators would otherwise escapepunishment. In addition, in this volatile context, judicial impartiality may fall victim to politicalpressure, time constraints, shortage of trained judges and lawyers and, in the case of ad hoc courts,the appointment of non-career judges who are more amenable to pressure from politicians, the mediaand public opinion. The risk of partisan verdicts, or so-called victors justice, is very real. Tribunalsmay even turn into opportunities for settling old personal and political vendettas. The effect willalmost certainly be that new victims are created and that new hatred and bitterness arise. Criminalprosecution must be discarded as a priority option if procedural standards cannot be maintained.The penal system is not adapted to handle large-scale atrocities. Criminal justice systems are not wellresourced to deal with the most extreme of crimes, such as gross human rights violations, particularlyif these offences come in large numbers. There is a real risk that only a small percentage of perpetrators will be prosecuted and punished so that the process will appear merely arbitrary. Criminal courtsare, moreover, not adapted to the complexities that arise when all sides have committed atrocities, asis usually the case in civil war.Trials identify individual guilt, not patterns in atrocities. Criminal courts are, generally speaking, notable to get at the broader patterns of the multiple causes and (state) practices that contributed - andmight still contribute in the future - to violence and terror. Moreover, trials only recognize criminalguilt, not political or moral responsibility.105
Trials may conflict with the culture of a post-conflict society. Desmond Tutu, Chair of the SouthAfrican Truth and Reconciliation Commission (TRC), argues that retributive justice is not characteristic of traditional African jurisprudence. It is too impersonal and has too little consideration forvictims. The African view of justice is aimed at the healing of breaches, the redressing of imbalances,the restoration of broken relationships. This kind of justice seeks to rehabilitate both the victim andthe perpetrator, who should be given the opportunity to be reintegrated into the community heor she has injured by his or her offence. Retributive justice,in contrast, may make reintegration much harder. Writing onTrials only recognize criminalthe legacy of the 19671970 civil war in Biafra, when threeguilt, not political or moralresponsibility.million people died, Ifi Amadiume explains that, for Africans:The evil is in the social system, in the guise of inequality andoppression. According to this African logic, guilt is collective; Africans turn to their own socialmediators, healers and reclassifiers, such as diviners and prophets. It is a modern arrogance to assumethat courts are instruments of healing. Similar arguments have been developed with respect to theAsian vision of dealing with victims and perpetrators, exemplified by the hesitation of the Cambodianpeople about instituting a retributive reaction to the crimes of the Khmer Rouge.The Need for a Multiple CostBenefit AnalysisThe cry No peace, no reconciliation without retribution is a key argument in ongoing debates onhow to deal with a violent past. As a public argument, it cannot be discarded without creating heavyopposition and re-victimization. It is clear from the preceding discussion that political, materialand legal constraints may make retributive justice almost impracticable. However, this call for caution should not lead automatically to the abandonment of criminal prosecution as a dimension oftransitional justice. Some problems can be resolved. Political leaders and civil society, both local andinternational, may develop measures that neutralize the paralysing effects of the limitations and risks.Past experiences suggest that the best practice is to balance all costs and benefits of a given policyagainst each other, above all taking into account the particular conjunction of political, cultural andhistorical forces in a transitional society.Moral Requirements and Political ConstraintsIt is critically important that those who, in good faith, advocate the use of criminal justice understandthe obstacles and risks in advance. But the political costs of criminal prosecutions should not beexaggerated. This is a difficult and delicate calculation, balancing short-term gains against long-termcosts. But post-conflict policy makers can also make use of the international community at such ajuncture. Outside actors can put pressure on dissidents who threaten stability. The ICC now offerspermanent back-up in cases where countries are unable to try these criminals themselves because ofviolence, intimidation or a lack of political will and, finally, foreign criminal justice systems too can,on the basis of universal jurisdiction, bring offenders to their courts.The crucial challenge is to strike a balance between the demands of retributive justice and politicalprudence or, in other words, to reconcile moral imperatives and political constraints. It entails adifficult and, on occasion, tortuous costbenefit analysis.Overcoming Practical LimitationsRetributive justice, especially in the context of a post-conflict society, is at best plagued by certainshortcomings and, at worst, may endanger reconciliation and democratization processes.106
One of the major risks relates to the problem of maintaining procedural standards. Countering thedanger of rule-of-law violations requires drastic interventions in the criminal justice system - restoringthe judicial infrastructure, reforming the police force, recruiting and training judges and defence lawyers, and developingRetributive justice, at worst, mayendanger reconciliation anda human rights culture in the prison system. In other words,democratization processes.keeping prosecution as an option in transitional justice isonly justified if there is a simultaneous reorganization of thejustice system. This is no easy enterprise. It may imply the mobilization of the international community, as is currently demonstrated in Burundi and Rwanda, where Avocats Sans Frontires (aninternational NGO) offers training to judges and lawyers.Many of the other limitations discussed above necessitate even more radical interventions, severalof which will be presented later in this and the following chapters.International Jurisprudence as a Complementary InstrumentInternational tribunals, or national trials based on universal jurisdiction, are less vulnerable to intimidation, material obstacles, violation of procedural standards, lack of trained personnel and victorsjustice. This makes them seem a perfect complement, or even an alternative, to local trials. But theactual experience of the ad hoc tribunals in The Hague and Arusha suggests that they are constrainedby several factors: *Lack of an enforcement mechanism. Tribunals have the power to issue arrest warrants for perpetratorsbut do not have the police authority to apprehend those who have been indicted. Lack of enforcement may severely hinder the effectiveness of tribunals, thereby eroding public confidence in theirusefulness.Tribunals cannot stop a conflict in progress. Although tribunals may begin their work before hostilitiescompletely cease (as in the case of the former Yugoslavia), they cannot themselves stop a conflict thatis in progress. This problem can be alleviated to the extent that tribunals are established before a wararises, as will be the case now that the ICC has been set up. Questions have been raised, however,about the potential for interference by the ICC in delicate local or regional peacemaking: for example,ICC prosecutions might work against local amnesty measures, producing a serious clash of interests.The scope of prosecutions depends on whether the conflict is internal or international. Under the GenevaConventions, if a conflict is internal, a perpetrator can only be prosecuted for genocide or crimesagainst humanity but not for grave breaches of the Geneva Conventions on humanitarian law orother war crimes. The ICC, however, will not be hindered by this limitation.The danger of imposing retributive justice as the universal response to human rights crimes. In thecourse of their vigorous lobbying for an effective ICC and for the extension of universal jurisdiction,international institutions (such as the UN) and NGOs (such as Human Rights Watch and AmnestyInternational) have tended to put a one-sided emphasis on retributive justice. This has been happening simultaneously with, and in contradiction to, the growing support - particularly but not solely indeveloping countries - for more informal and mediation-oriented mechanisms of restorative justice(see section 7.3).Ad hoc tribunals tend to be costly, time-consuming and too distanced from the population. The innovation of tribunals that are a mixture of international and national elements (as in the case of the special* Parts of the following are based on Michael Lund, Reckoning for Past Wrongs: Truth Commissions and War Crimes Tribunals. InDemocracy and Deep-Rooted Conflict: Options for Negotiators, edited by Peter Harris and Ben Reilly. Stockholm: InternationalIDEA, 1998:291.107
courts in Sierra Leone and Cambodia), together with the establishment of the ICC, may eliminatesome of these problems. Mixed tribunals are less expensive and closer to the population, can developa stronger deterrent effect, and have easier access to evidence.7.1.4 The AlternativesIt is perfectly conceivable that policy makers and civil society, after weighing the pros and cons, willconclude in a particular situation that retributive justice is too dangerous a path or that the obstaclesare insurmountable. Various alternative routes are then available. One is amnesty, an approach whosepolitical appeal is often irresistible. Section 7.2 examines this policy option at length. Other optionsare (a) the use of restorative justice, possibly based on traditional mechanisms of conflict resolution;and (b) the establishment of a truth commission and/or reparation programmes - the two latter beingforms of justice without formal punishment. Restorative justice is the subject of section 7.3. Truthtelling and reparation are discussed in chapters 8 and 9.These alternatives all raise a preliminary but crucial question: how do they relate to the duty underinternational law to prosecute genocide, war crimes and gross violations of human rights? The spiriteddebate over this question is still unresolved. Some participants in the debate accept no exceptions tothis international obligation. Others argue that a post-conflict society may refrain from the duty toprosecute if certain strict conditions are met. Among the most important conditions are: Blanket amnesty must be completely out of the question. Irrefutable proof must be given that national courts are unable to prosecute. The population in general, and victims in particular, must have a voice in the decision not toprosecute. The state authorities must accept the commitment to acknowledge as much as possible of the truthabout the past. Firm promises must be given with respect to reparation for victims. Those who profit from a pardon must express regret.7.2 Amnesty: a Questionable AlternativeReconciliation processes are ineffective as long as the vicious circle of impunity is not broken. Thenasty reality is that in most post-conflict societies gross atrocities go unpunished, unacknowledgedand without redress.Impunity has many sources. In some countries silence is the main cause. It can be officially inducedor simply a case of public amnesia. In Zimbabwe, for example, the army committed gross humanrights violations in Matabeleland between 1983 and 1985. This remained unacknowledged until1997, when two NGOs published a report titled Breaking the Silence (see the case study followingchapter 2).In other societies impunity is the product of a deliberateattempt by the authorities to camouflage certain painful epiReconciliation processes are ineffective as long as the vicious cirsodes by imposing a selective reading of the past. Post-Worldcle of impunity is not broken.War II France is a compelling illustration of this. After thewar, the French Government presented a picture of a societythat had been united in resistance to the German occupiers and ignored the collaboration of thedomestic Vichy regime and its participation in the Holocaust. As a result, high-ranking officials of theVichy regime went totally unpunished until new trials in the 1990s put an end to this anomaly.108
Impunity also occurs when domestic criminal courts, and often military courts, fail to deal adequately with perpetrators.Immunity is a variant of impunity. It is embedded in international customary practice whichprovides protection against prosecution for heads of state. In some cases, for instance Burundi in20022003, peacemaking is facilitated by granting leaders of rebel movements provisional and limited immunity through domestic legislation.However, the most frequent source of impunity is amnesty legislation, an officially declared andimposed forgiving and forgetting. The next two subsections discuss the various forms of amnesty andits close relationship with the notion of political offence.7.2.1 Amnesty in its Many FormsAmnesty comes in a variety of forms. Which particular form it takes depends both on the way it isdecided upon and on the range of perpetrators and crimes it indemnifies.The Origin: a Unilateral or Negotiated Decision?Some sort of self-amnesty accompanied the transitions to democracy in many Latin American countries in the 1980s. The outgoing elites unilaterally pardoned most of their political leaders and seniorarmy officers. For example, in Argentina in 1983 democratic elections were held in October, butin September the military junta had passed the so-called Law on National Pacification, grantingamnesty for all political and related crimes by its officials and military. In 1978, years before Chilestransition to democracy, thePinochet government uniBox 7.5: The Notion of Political Offence in South Africalaterally pardoned all crimThe law and practice of states showpolicy of or to overthrow or destroyinal acts committed duringthat there is now a considerablethe political opponent);the state of siege (betweendegree of consensus both as to the legal and factual nature of thethe types of offence which may inSeptember 1973 and Marchoffence, including its gravity;principle be classified as political1978). In Zimbabwe, after the object and/or objective ofand as to the sort of factors whichthe offence (e.g., whether it waseach election in the periodshould be taken into account incommitted against the political19802000 the Zimbabwedeciding whether an offence is politicalopponent or his property, or directedornot.African Nationalist Unionprimarily against private individuals orThe following factors will bePatriotic Front (ZANU-PF)property; or was committed on theconsidered when making aassumption that a particular cause,government enacted amnesrecommendation for the grant ofgovernmental or otherwise, was beingty laws pardoning violencepardon or indemnity as may beserved);appropriate in individual cases:against opposition parties and the relationship between the offence the motive of the offender, i.e.,their members.and the political objective beingwhether the offence was committedpursued (e.g., the directness orPre-transitionalnegotiafor a political motive (e.g., to furtherproximity of the relationship, or thetions between warring partiesor oppose the aims of a politicalproportionality between the offenceorganization, institution or body) or for and the objective pursued); andare a similar source of amnesa personal motive;ty laws. This type of recipro the question whether the act was the context in which the offence wascommitted in the execution of ancal amnesty became a domcommitted, and in particular whetherorder or with the approval of theinant feature from the earlyit was committed in the course oforganization, institution or body1990s. The end of the apartor as part of a political uprising orconcerned.disturbance, or in reaction thereto;heid regime in South AfricaSource: South African Government the nature of the political objectiveGazette, 7 November 1990.was preceded by negotiations(e.g., whether to force a change in thethat facilitated amnesty for109
both sides. The Madrid peace accords of December 1996 between the government of Guatemala andthe rebel Guatemalan National Revolutionary Unit (Unidad Revolucionaria Nacional Guatemalteca,URNG) produced a similar result. The 2002 ceasefire agreement between the Angolan governmentarmy and the military commanders of the National Union for the Total Independence of Angola(Unio Nacional para a Independencia Total de Angola, UNITA) included the promise of amnesty forformer UNITA rebels: a few days before the official signing of the agreement the Angolan Parliamentpassed an amnesty law. The Nicaraguan general amnesty and national reconciliation law of March1990 was the result of negotiations between the Sandinista government and opposition parties.The Scope: Total or Conditional?Total amnesty is rare. In most legislation, pardon is reserved for crimes that are political in nature.Limiting conditions can be: amnesty after full exposure of the facts by the author of the crime, as in South Africa; amnesty reserved for certain perpetrators (for example, child soldiers); amnesty reserved for crimes committed during a specified period; or amnesty laws which specifically exclude crimes that fall under the countrys international obligations (such as the UN conventions on genocide and torture and the Inter-American Convention onHuman Rights). Examples are Perus amnesty law of June 1995, Uruguays law of national pacification of 1995, Surinames amnesty act of August 1992, and the amnesty proclamations of 1994 inthe Philippines.However, there are cases where the definition of a political offence is so broad as to produce a defacto total amnesty. The 1993 general amnesty law for the consolidation of peace in El Salvador, forexample, granted amnesty to all those who participated in any way in the commission of politicalcrimes or common crimes linked to political crimes or common crimes in which the number ofpersons involved is not less than twenty.EvaluationAmnesty legislation - the imposition of official forgiving and forgetting - is, then, a disputed instrument in the context of post-conflict societies. More often than not it obstructs the reconciliation process. It is a general rule that unilateral amnesties that are total inscope should be avoided. A different situation arises when amnestyAmnesty legislation moreis the price to be paid for negotiating a fragile peace. If the endoften than not obstructs theof a violent conflict is otherwise not attainable, amnesty can bereconciliation process.a last resort. But even then, according to most observers, strictconditions must be met. These include, among others, a publicdebate preceding the enactment of an amnesty law, as much truth-seeking and reparation as possible,and full respect for a states international obligations under any human rights treaty.7.2.2 The Notion of a Political OffenceAlmost all amnesty legislation explicitly refers to crimes or offences that in one way or another are of apolitical nature. In many cases, particularly in the indemnity laws of the 1980s, the notion politicalremained extremely vague, allowing authorities to bend the scope of the legislation to their needs. Changehas come with the transitions in Mozambique and South Africa. The parties at the negotiation table agreedon a set of guidelines on political offences drawn from extradition law. These criteria are a mix of elements(see box 7.5):110
Strengths They are accessible to local and rural people in that their proceedings are carried out in the locallanguage, within walking distance, with simple procedures which do not require the services of alawyer, and without the delays associated with the formal system. In most cases, the type of justice they offer - based on reconciliation, compensation, restorationand rehabilitation - is more appropriate to people living in close-knit communities who must rely oncontinuous social and economic cooperation with their neighbours. They are highly participatory, giving the victim, the offender and the community as a whole a realvoice in finding a lasting solution to the conflict. They help in educating all members of the community as to the rules to be followed, the circumstances which may lead to them being broken, and how ensuing conflict may be peacefully resolved. The fact that they employ non-custodial sentences effectively reduces prison overcrowding, mayallow prison budget allocations to be diverted towards social development purposes, permits theoffender to continue to contribute to the economy and to pay compensation to the victim, andprevents the economic and social dislocation of the family.
The compromise reached may reflect the unequal bargaining strengths of the parties. While checks
and balances exist (particularly public participation), existing social attitudes may in fact reinforceinequalities on the basis of gender, age or other status. Traditional leaders may favour certain parties depending on their political allegiance, or power interms of wealth, education or status. Another major flaw, not mentioned in the report, is that procedural safeguards are often insufficient.(Reproduced with permission from a study published in 2000 by Penal Reform International.)7.3.3 Restorative Justice in Post-Conflict SocietiesTraditional forms of justice may complement and even replace more formal and punitive ways ofdealing with past human rights violations. However, many doubts remain. These traditional mechanisms have some significant weak points, resulting in many instances in a denial of fair trial. Thishas recently been pointed out by the African Commission on Human and Peoples Rights: It isrecognized that traditional courts are capable of playing a role in the achievement of peaceful societiesand exercise authority over a significant proportion of the population of African countries. [However,]traditional courts are not exempt from the provisions of the African Charter relating to fair trial.Traditional forms of justice are designed to deal with relatively small numbers of cases of minorwrongdoing - theft, conflicts between neighbours and so on. Do they have the capacity to restoreyears and sometimes decades of oppression? Can they bear the weight of the most serious crimes?This is the most important reservation. The problem in answering these questions is that there are asyet only a few and fairly recent experiences of restorative justice being implemented in post-conflictsituations. Box 7.7 gives a brief description of two examples. The most ambitious operation so faris the remodelling of the gacaca tribunals in Rwanda with the aims of speeding up the prosecutionof suspected perpetrators of the 1994 genocide, increasing the participation of the population, andintroducing elements of mediation and reconciliation into the process. The importance of this enterprise and its potential relevance for other post-conflict societies are indisputable. This chapter therefore ends with a case study on the Rwandan experiment.
Penal Reform International. Access to Justice in SubSaharan Africa: The Role of Traditional and InformalJustice Systems. London: PRI, 2002.
IntroductionBetween April and July 1994, more than 700,000 Tutsi were killed in the Rwandan genocide. Inparallel massacres, tens of thousands Hutu were killed for being too moderate, too sympathetic toTutsi, too wealthy or too politically inconvenient. After the genocide a new government came topower, dominated by Ugandan-born Tutsi returnees but with the participation of other politicalparties. It inherited a totally destroyed country, with a traumatized and impoverished population,a collapsed state and a destroyed infrastructure. Eight years later, much of the physical fabric ofthe state and the economy has been rebuilt - at times better than it was before. However, the gianttear in the fabric of Rwandas society has not been repaired. Achieving justice and reconciliationremains the great challenge for Rwanda.From the beginning, the new government argued that unless the culture of impunity was onceand for all ended in Rwanda the vicious cycle of violence would never end. Although some donorswere interested in the South African truth and reconciliation model, the government firmly rejectedthis: only when the guilty had been punished would it be possible for the victims and the innocentto create a joint future together. As a result, the Rwandan Government and the donor communityinvested heavily in the (re)construction of the justice system. More than 100 justice-related projectshave been funded - training lawyers, judges, investigators and policemen; supporting reform ofadministrative and court procedures; funding the construction of courts, libraries and prisons; payingfor vehicles and fuel; supplementing the salaries of judges; and supplying technical assistance to theMinistry of Justice and the Supreme Court.All this has produced significant results. In 1996, the Rwandan National Assembly adopted agenocide law, creating four categories of crime and associated punishments, ranging from particularlycruel behaviour (category I) to simple property offences (category IV). Trials started by the end of thesame year. By mid-2001, approximately 3,500 persons had been judged.The quality of the trials has improved over the years as verdicts have become more nuanced, butserious problems remain. The quality of the justice delivered is deficient: there are too many instancesof investigative bias, corruption of judges, intimidation of witnesses, weak defence counsel or absenceof a defence counsel, and political pressure. A second major problem is quantitative: at the currentpace, it would take more than a century to finish the trials of the 130,000 persons who are currentlyimprisoned, often in horrendous conditions. It is widely believed that the justice system simply cannot work much faster than it currently does (it could work faster but not, let us say, 50 times faster,which is what is really needed). More people accused of participation in the genocide die in Rwandasprisons each year than are judged. This is socially, economically and politically very costly for theRwandan Government and society.From mid-1997, senior Rwandans began thinking about innovative ways of dealing with this challenge. Out of these discussions grew the idea of transforming a traditional Rwandan communitybased conflict resolution mechanism called gacaca into a tool for judging those accused of participation in the genocide and the massacres. This system is labelled the modernized gacaca and consti116
tutes an unprecedented legalsocial experiment in its size and scope. In the summer of 1999, a draftlaw began to circulate. This was followed by a large number of meetings and discussions involvingvarious segments of government and society, as well as the international donor community. The lawunderwent various modifications, which resolved some of the criticisms against it but not others, andwas finally passed by the National Assembly in October 2000. Elections for approximately 255,000gacaca judges took place in October 2001. Training for the judges followed in April and May 2002,with international support.The SystemThroughout the country gacaca tribunals have been created composed of persons of integrity electedby the inhabitants of cells, sectors, districts and provinces. Each prisoner (except those accused ofcategory I crimes) will be brought before the tribunal in the community where he or she is allegedto have committed a crime. The entire community will be present and act as a general assembly,discussing the alleged act or acts, providing testimony and counter-testimony, argument and counterargument. The community will elect among those present 19 people to constitute the bench. Thesepeople must be of high moral standing, non-partisan and not related to those accused.In the first phase, at the lowest level (the cell), gacacas will categorize all prisoners using the legalThe Structure of the Gacaca Tribunals in RwandaNumber
To judge category IIcrimesTo judge appeals forcategory III crimes
categories established in the 1996 genocide law. In so doing they can use the case files drawn upagainst the prisoners insofar as that these dossiers exist. However, they are expected to draw primarilyon testimony from the accused and the community assembly. In the second phase, gacaca tribunalsat different levels will judge the accused, with each level having competence to judge appeals fromthe level below.One of the innovative elements of the gacaca law is the confession procedure. Prisoners who confessand ask for forgiveness can receive dramatic reductions in penalties. Reductions are greatest for thosewho confess before the proceedings against them start, either while in prison or at the very beginningof the gacaca proceedings, when they are explicitly asked if they want to confess. Reductions are117
smaller for those who confess only during the gacaca procedure, while penalties are unchanged forthose who do not confess at all but are found guilty. Additionally, up to half of the sentence of allconvicted can be transmuted into community service (travaux dintrt gnral), the modalities ofwhich are yet to be determined by further laws. To benefit from the community service provisions,the accused have to ask for forgiveness publicly.Finally, the gacaca law greatly simplifies the reparation procedure for survivors of genocide. Partof the gacaca proceedings consists of a detailed listing of all the damages suffered by each survivor- destruction of property, physical harm or loss of relatives and providers. When the procedure iscompleted the claimants receive a statement of their losses and can use this to receive reparationsfrom a public fund which will be set up for this purpose.Merits and Limitations: the DebateThe aim of the gacaca system is twofold: to speed up the trials and empty the prisons; and to involve the community in establishing the truth and, through that, promoting reconciliation.On paper, the system should be able to achieve these two aims much better than the formal justicesystem. With approximately 10,000 tribunals, it should be possible to judge all prisoners over amuch shorter period of time. Given its decentralized nature, its relatively simple and recognizableprocedures and the importance attached to local participation, the gacaca ought to be much better atinvolving the entire community, including victims. As a result it is potentially more victim-centred,and may thus have a more profound impact in terms of reconciliation. Finally, through the process oflocal discussion and fact-finding, gacaca proceedings may well develop a fuller picture of the natureof the violence that occurred and the responsibilities of different people.The gacaca law contains a politically astutely designed set of incentives to encourage popular participation and acceptance. The confessions procedure, with its requirement for complete confession,including the names of all other people involved in the crime, is already setting in motion an avalanche of confessions, including the implication of other people, which is likely to lead to significantdebates as people seek to explain themselves, implicate others, contextualize events and so on. Hencethe gacaca procedure could produce more truth than the formal justice system has so far managedto do. In addition, the confessions procedure and the community service commutation option bringsignificant reductions in length of prison sentences, even for those found guilty. As a result, manypeople should be able to finally rejoin their families and get on with life. Finally, the streamlining ofthe reparation procedure provides a way to buy some (grudging) support from the genocide survivororganizations. However, the gacaca system suffers from significant limitations: It compromises on principles of justice as defined in internationally-agreed human rights andcriminal law. It could set in motion social dynamics that are unexpected and possibly violent.On the first point, there is no separation between prosecutor and judge, no legal counsel, no legallyreasoned verdict, great encouragement of self-incrimination, and a potential for major divergencesin the punishments awarded. In short, the modernized gacaca system seems to provide inadequateguarantees for impartiality, defence and equality before the law. Many foreign legal specialists andhuman rights observers have consequently been highly sceptical about the gacaca proposal. However,the alternatives they propose, such as guaranteeing the right to legal counsel, basically end up rein118
venting the same formal justice system which is clearly not adequate.At the same time, a number of real-world arguments have been proposed which may be sufficientto defend the gacaca system even from within a human rights perspective.The practice of formal justice, which has been maintained for years with massive internationalassistance, also violates human rights. The basic right to a speedy trial, reasonable detention timesand decent conditions of detention is being violated under the current practice, and no one has anycredible ideas about how to change this. In addition, approximately 60 per cent of those brought tojustice so far have not had legal counsel, and for many who had it this counsel was of low quality - aswere the prosecutors, investigators and judges. Hence, when discussing gacaca, we are not comparinga clean system that respects criminal and human rights law with one that violates it, but rathertwo practices that are both weak and incomplete. This may well be unavoidable: in the aftermathof mass violence, full, formal justice and complete adherence to human rights standards may beunattainable. For that reason, Ian Martin wrote about the impossibility of justice in Rwanda. Allthis is compounded by conditions of extreme poverty, continued profound social polarization, civilwar and the absence of a strong historical tradition of independent justice.It is possible to argue that the gacaca proposal actually respects the spirit of justice, if not theletter of criminal and human rights law. In other words, the practice of gacaca may well produce fairtrials, but in an original, locally appropriate form. For example, while there is indeed no independentlegal counsel, the play of argument and counter-argument and of witness and counter-witness bythe community basically amounts to a fair defence, possibly producing better results than the formaljustice system has until now been able to achieve. Similarly, if one accepts that people in the community by and large know the truth about who did and did not kill, and how, why, and with whatdegree of ruthlessness people killed others, gacaca is a superior tool to that which the formal justicesystem has produced.The categories of persons most affected - the prisoners, the survivors and all Rwandan communities- seem to be largely in favour of the proposed gacaca system. Indeed, there is strong evidence that theprisoners themselves overwhelmingly favour gacaca. Admittedly, people who have spent many yearsimprisoned in horrendous conditions are likely to be willing to try anything that gives them a chanceto get out of prison, and thus this argument cannot be given any decisive weight. Since the publicdiscussions about the gacaca law began, confession rates have skyrocketed, and these confessions havetaken the form of mini-gacacas. Prisoners thus seem to be giving, by their own behaviour, a certainlegitimacy to the idea of gacaca and, although their behaviour is certainly heavily constrained, this isof importance. In addition, research results suggest that the great majority of the population, bothHutu and Tutsi, prefer the gacaca process to the current system. While they do fear its potentialexcesses or abuses, they also judge that under current conditions the gacaca system is superior to thecontinuation of the current formal justice practice.In short, there seem to be a number of real-world reasons that may render the human rights andcriminal law violations embedded in the gacaca process less devastating than may appear, eitherbecause there are few real-world alternatives, or because the process can be argued to constitute alocally appropriate, and popularly legitimate, form of justice, with a higher potential for contributingto reconciliation. This does not mean that the human rights and criminal law violations inherentin the gacaca proposal become suddenly irrelevant; it does mean, however, that the gacaca proposalshould not be dismissed outright as inappropriate or unjust.On the second point, the potentially positive effects of gacaca in terms of community participationand victim-centredness could well be undone by local social dynamics. A number of such issues
must be mentioned here - (a) interference by power-holders, (b) neglect of the gender dimension, (c)population movements, and (d) the broader political and social dynamics in Rwanda.One factor that can reduce or destroy the potential of gacaca to produce a measure of truth, justiceand reconciliation is interference by power-holders - whether the power they possess is that of thegun, of money or of the state. Even if most power-holders are successfully excluded from electionto the gacaca benches, they will be present during the sessions as well as the periods in between. Forwhatever reasons - personal vengeance, political conflict, issues of land and property, family ties orsimply ideology - they may seek to influence the proceedings. If they do so, the gacaca process willnot yield justice or truth, and it will not contribute to reconciliation. Indeed, it may even do theopposite, rendering people even more distrustful, bitter and ready to embrace ideologies of hatredand contempt. The total absence of witness protection is worrying in this regard. Clearly, then, thecapacity of the police to stop attempts at intimidation and manipulation will be a crucial variable.There is an important gender issue: if no special efforts are made, womens participation in thegacaca process may well be minimal. The election of gacaca judges in October 2001 was a worryingsign in this regard. Relatively few women were elected, varying from one-third of all judges at celllevel to only one-fifth at the provincial level. There is concern that women may also be neglectedduring discussions about restitution and compensation, contrary to the law. As a consequence of theirprecarious economic situation, widows are particularly vulnerable to family and social pressure. Giventhe prevalence of social taboos, the horrific sexual crimes suffered by many of these women are likelyto go undiscussed. The absence of trauma counselling; the fact that a fixed representation of womenon the gacaca benches was not accepted; and the generally weak position of women in Rwandansociety are all cause for concern. On the other hand, womens groups, often made up of widows, havesprung up all across the territory, and they may well act as strong new voices.Underlying a neo-traditional mechanism such as the modernized gacaca jurisdictions is a notion ofcommunity - the existence of rather close-knit groups of people sharing certain values and expectations (at a minimum the expectation that they will live together for a long time to come). Thiscondition is not always met in present-day Rwanda. In many areas, a significant proportion of thepopulation has arrived since the genocide, and thus the process of witnessing and confrontation maybe incomplete. This situation is bound to be worst in urban areas. In general, the degree of distrustthat still reigns may well make any notion of community a mirage.Finally, the way in which the gacaca process unfolds will be profoundly affected by broader socialand political trends, both nationally and locally. The extent to which people distrust or dislike thegovernment (perhaps because they suffered heavily from the counter-offensives against rebel infiltration, or because they judge the central government to be increasingly unrepresentative and exclusive),the memories they carry about of the behaviour of government soldiers immediately after the genocide, and even general economic trends (e.g., the impact of localized famines) - all these factors arebound to influence peoples willingness to engage in the risky process of gacaca. While these factorsfall outside the design of the law, they may well be the key factors that determine its success orfailure.Concluding RemarksIf successful, the gacaca proceedings could produce great benefits. They may solve problems of thecurrent slow judicial practice; they also have the potential to create significant benefits in terms oftruth, reconciliation and even empowerment. For these reasons the international community, including many human rights organizations, has decided to cautiously support the process. These potential120
benefits follow from the central role played by local communities, as well as from the fact that thesystem involves many more people, particularly victims, and involves fewer time-consuming rulesthan the formal justice system. However, for precisely the same reasons, the gacaca system is also veryvulnerable to unpredictable political, social, psychological and economic dynamics. The results arepotentially dangerous.At the time of writing (summer 2002), the pilot phase has begun, with tribunals taking place inat least one cell of each province. The full-scale phase is expected to start in late 2002. Gacaca is aworthy gamble, but a gamble nonetheless. It is simultaneously one of the best and one of the mostdangerous opportunities for justice and reconciliation in Rwanda. But in a country like Rwanda thereare no easy, cheap or clean solutions.
Vandeginste, Stef. Les juridictions Gacaca et la poursuite des suspects du gnocide et des crimes contrelhumanit au Rwanda. Dialogue 220 (2001)See also articles inhttp://www.Diplomatiejudiciaire.com
Truth-Tellingm a rk f re e m a n a n d p r i sc i l l a b. h ayn e rint ern ati on a l c e n te r f or tr a n si ti on a l j u sti c e*
8.1 IntroductionConfronting the past in a reconciliatory way requires the mobilization of a variety of techniques.Historical accounting via truth-telling is one of the most important steps in the reconciliationprocess. But how does seeking accuracy about the past help a society to move from a divided pastto a shared future?The term reconciliation is widely used but not often clearly defined or understood. A study bythe Johannesburg Centre for the Study of Violence and Reconciliation of the impact of the SouthAfrican Truth and Reconciliation Commission (TRC) on one community showed that residents ofthe area had very different ideas of what reconciliation meant. A common underlying theme involvedbuilding a relationship between groups or individuals, but the definitions of that relationship differeddepending on culture, particular experience of human rights abuse, position in the political structureand personal circumstances. There does, however, appear to be generally uniform agreement amongmost experts that reconciliation is more a process than an achievable objective.In the context of truth commission work, perhaps the most important distinction that must bemade is that between individual reconciliation and national or political reconciliation. While a truthcommission may be a useful mechanism in advancing the latter to the extent that it may help preventbasic points of fact from continuing to be a source of conflict or bitterness among political elites,reconciliation on an individual level is much more complex and probably more difficult to achieve bymeans of a truth commission. Forgiveness, healing and reconciliation are deeply personal processes,and each persons needs and reactions to peacemaking and truth-telling may be different.Nevertheless, many continue to assert that it is necessary to know the truth in order to advancereconciliation. It is of course possible to point to evidence and to quote survivors to show that this isthe case: sometimes it is, for some people or in some circumstances. Yet it is easy to imagine thatthe opposite may also be true, or that reconciliation may bemore affected by factors other than knowing or acknowledgingTruth may be only one of manypossible elements in the purthe truth about past wrongs. For example, true reconciliationsuit of reconciliation.might depend on a clear end to the threat of further violence;acknowledgement by the state or by perpetrators of the injuriessuffered; a reparation programme for those injured; attention to structural inequalities and the basicmaterial needs of victimized communities; the existence of natural linkages in society that bringformerly opposing parties together; or, most simply, the passage of time.Thus, truth may be only one of many possible elements in the pursuit of reconciliation. Transitionsin places such as Spain and Mozambique suggest that a substantial degree of national reconciliationcan sometimes occur even in the absence of a formal truth-seeking process. Whether reconciliation in* The International Center for Transitional Justice is a nongovernmental organization based in New York which provides technicalassistance to countries in transition. The authors can be reached at the ICTJ at 20 Exchange Place, 33rd Floor, New York, NY10005; 917-438-9300; firstname.lastname@example.com or email@example.com
these and other cases can or will be as genuine or as sustainable as in places where truth commissionswere instituted remains very much an open question.8.2 Instruments of Truth-SeekingOne of the most popular transitional mechanisms in recent years is what has come to be known, inits generic form, as the truth commission. Section 8.3 is entirely devoted to this major instrument fordealing with a painful past. Although truth commissions were developed only recently, their potentialcontribution has been widely recognized, to the extent that transitional societies today are almostcertain to consider establishing them. In recent years two major truth commissions, in Guatemalaand South Africa, have brought considerable attention to the subject of official truth-seeking. Theyare examined in the case study at the end of this chapter. New commissions are under way or veryrecently concluded, as of mid-2002, in places such as Panama, Uruguay, the Federal Republic ofYugoslavia (FRY), Nigeria, East Timor and Peru, and are in the process of formation in Sierra Leoneand Ghana.Because truth commissions deal with many events that could also be the subject of judicial trial,many observers confuse truth commissions with courts, but truth commissions should not be equatedwith judicial bodies, nor should they be considered to be a replacement for judicial trials. Truthcommissions are non-judicial bodies and as such clearly have fewer powers than do courts. They haveno power to put anyone in prison, they cannot enforce their recommendations and most have noteven had the power to compel anyone to come forward to answer questions.While this chapter focuses largely on the experience and challenges of truth commissions, theimportance of other truth-seeking mechanisms should not be overlooked. There are at least threeother kinds of truth-seeking inquiries into human rights violations that can be contrasted with truthcommissions. All are important forms of inquiry in their own right. In addition, in some contextsthey may constitute the only available mechanism for truth-seeking, or perhaps the most appropriateone.In some countries, governments have established historical commissions. These are present-dayinquiries into state abuses that took place and ended many years, or even decades, ago. In contrast totruth commissions, historical commissions are not established as part of a political transition and maynot even pertain to todays political leadership or practices. Instead, they serve to clarify historicaltruths and pay respect to previously unrecognized victims or their descendants. Another distinctionis that, in contrast to truth commissions, historical commissions have generally not investigatedinstances of widespread political repression but have instead focused on practices that may haveaffected specific ethnic, racial or other groups. Examples include the US Commission on WartimeRelocation and Internment of Civilians, and the Canadian Royal Commission on AboriginalPeoples.A number of examples of official or semi-official inquiries into past human rights violations sharethe main characteristics of truth commissions but are distinguishable by the fact that they are lessindependent of political processes, or more limited in scope or authority, or undertaken only as aprecursor to a fully-fledged truth commission. Examples of such commissions include the variousparliamentary inquiries and congressional investigative committees established by legislatures aroundthe world, the inquiry undertaken by the National Commissioner for the Protection of HumanRights in Honduras in 1993 regarding disappearances in that country, the investigations carriedout by the Northern Ireland Victims Commissioner in the late 1990s, or the various event-specifictribunals of inquiry that are commonly established in Commonwealth countries and elsewhere. Other123
forms of official or semi-official inquiry that overlap with truth commissions include a variety ofinternational inquiries, often sponsored by the UN or by regional organizations, which investigateand report on war victims or national cases of severe repression. Examples of these inquiries includethe Organization of African Unity (OAU, now the African Union), International Panel of EminentPersonalities to Investigate the 1994 Genocide in Rwanda and the Surrounding Events, and thevarious war crimes commissions and bodies established by the UN to look into violations committedin places such as East Timor, Rwanda and the former Yugoslavia. Generally speaking, these inquirieshave the advantage of being relatively easy to establish in comparison to a truth commission, andof being more official and powerful than a purely non-governmental project. At the same time theymay head off calls for a more independent, comprehensive or robust inquiry, notwithstanding thefact that limitations in their independence, scope or authority will often result in a less than completepicture of the past.There have been a great number of non-governmental projects which, like truth commissions,have documented violations and patterns of abuse of a previous regime - generally at great personalrisk. These projects are usually undertaken by national human rights organizations, sometimes withchurch backing, and have sometimes produced remarkable results. Prominent examples include thework of organizations such as the Service for Peace and Justice in Latin America (Servicio Paz yJusticia en Amrica Latina, SERPAJ) in Uruguay in the 1980s and the Inter-Diocesan Project for theRecovery of the Historical Memory (Proyecto Interdiocesano para la Recuperacin de la MemoriaHistrica, REMHI) in Guatemala in the 1990s. In contexts where official truth-seeking is not possible, non-governmental projects are particularly important because they may provide the only reliable documented record of victims and past violations. At the same time, non-governmental projectslack the very important attributes of many modern truth commissions such as powers of investigation, guaranteed access to government records, personal immunity for commissioners and the benefitof a state obligation to implement or at least report on the implementation of final recommendations.8.3 Understanding Truth CommissionsThe purpose of this section is not to survey or examine all or even most of the past and current truthcommissions in the world. Instead it seeks to explain in practical terms what a truth commissionis, how it operates and what it can potentially achieve for a country in the process of democratictransition.The section is divided into six subsections. Subsection 8.3.1 defines what a truth commission isand then distinguishes commissions from other truth-seeking mechanisms. Subsection 8.3.2 exploresthe potential benefits, as well as the potential risks, of having a truth commission. Subsection 8.3.3provides a brief review of the various constraining and enabling factors that can affect the establishment and operation of a truth commission. Subsection 8.3.4 briefly explains how a truth commissiontypically is sponsored while subsection 8.3.5 provides a review of the principal design concerns inestablishing a truth commission. Subsection 8.3.6 takes a close look at how truth commissions operate and explores a few of the more difficult issues that they must confront. The chapter concludeswith a comparative examination of the truth commissions of South Africa and Guatemala.8.3.1 What is a Truth Commission?Generally, the term truth commission refers to bodies that share the following characteristics.At least 25 official truth commissions have been established around the world since 1974, though124
they have gone by many different names. There have been commissions on the disappeared inArgentina, Uganda and Sri Lanka; truth and justice commissions in Haiti and Ecuador; truth and reconciliation commisAt least 25 official truth comsions in Chile, South Africa, Sierra Leone and now the Federalmissions have been establishedRepublic of Yugoslavia; and most recently a commission foraround the world since 1974.reception, truth and reconciliation in East Timor. Althoughthese commissions all fit within the definition above, it shouldbe noted that some of them did not at the time of their operation consider themselves to be truthcommissions, nor were they understood to be such by the wider public.8.3.2 Potential Benefits and RisksPotential BenefitsAlthough truth commissions may not be appropriate in every context, they have the potential togenerate many benefits for societies in transition. The following list of potential benefits may assistin initial reflections on the role and focus of a truth commission while a new commission is indevelopment:Commissions can help establish the truth about the past. They can establish a record of the pastthat is accurate, detailed, impartial and official. This record can serve to counter the fictitiousor exaggerated accounts of the pastBox 8.2: Reasons for Establishing a Truth Commissionthat were propagated by the previous regime (or other parties to a pastA truth commission can:conflict) and bring the true scale and help establish the truth about the past; promote the accountability of perpetrators of human rights violations;impact of a violent past to the public provide a public platform for victims;consciousness. In addition, commis inform and catalyse public debate;sions can locate the whereabouts of recommend victim reparation;missing victims who may have been recommend necessary legal and institutional reforms;forcibly disappeared or buried clan promote social reconciliation; anddestinely. help to consolidate a democratic transition.Truth commissions can promote theaccountability of perpetrators of humanrights violations. They can complement the work of criminal prosecutors by gathering, organizingand preserving evidence that can be used in prosecutions. They can also build a case for and recom125
mend forms of accountability short of criminal sanction, such as civil liability, removal from office,restitution or community service schemes.Commissions can provide a public platform for victims. They can put victims - long ignored andforgotten by the public - at the forefront and centre of the transition process. This can help to makevictims whole again, both individually and as a group, and give them a sense of personal vindication.In addition, by providing a public platform for victims to speak in their own voices, commissionscan help to educate the public about the individual human impact of past crimes and thereby buildsupport for further victim-centred transitional justice initiatives such as reparation programmes.Commissions can inform and catalyse public debate. They can help stimulate public deliberation onthe complex array of moral, political and legal issues that must be addressed during a transition process. This can be achieved by engaging with the public through commission activities and encouragingbroad media coverage. In addition, truth commissions can themselves serve as a model for the public,as the public begins to take up again the critical practice of discussing controversial political subjectswithout fear of recrimination or resort to violence. Commissions can also serve as independent,impartial and public arbiters if and when members of the previous regime grossly misrepresent ordistort events of the past.Commissions can recommend victim reparation. They can build a case for reparation as a necessaryform of compensation for past abuses and for ongoing psychological, physical and economic injuriesexperienced by victims. They can also establish fair and effective definitions and categories of victimfor the purpose of financial reparation or benefits to follow. In addition, commissions can help torepair the moral dignity of victims by carrying out their work in a manner that is both sensitive toand acknowledges the harm suffered by them. Commissions can also make creative and appropriatesuggestions regarding symbolic forms of reparation for victims, such as memorials, reburials andcommemorative ceremonies.Commissions can recommend necessary legal and institutional reforms. Through their investigationsthey can provide clear evidence of how particular institutions individually and collectively failed touphold human rights protection in the past. Inaddition, commissions can identify and recomTruth commissions can promote reconciliamend specific legal and institutional reforms thattion by providing a safe and impartial forumwill enable the country to achieve the long-termfor direct restorative justice processes.social, economic and political objectives that areessential to ensuring a better future. Such reformsmay include, for example, strengthened civilian oversight of intelligence agencies and the military;new appointment, tenure and disciplinary rules for the judiciary; the establishment of an independent and well-financed prosecutors office; redesign of the electoral and political system; land reform;and new human rights training programmes for the police and armed forces.Commissions can promote reconciliation. They can promote tolerance and understanding by allowing conflicting parties to hear each others grievances and suffering. This may help build empathy,thereby deterring acts of vengeance and countering the rivalries and hatreds arising from past events.Commissions can also provide a safe and impartial forum for direct restorative justice processes inwhich the victim, the offender and/or other individual or community members can actively participate in the mediation and resolution of past grievances of a less serious nature. In addition, commissions can recommend practical and fair measures for the necessary reintegration of certain categoriesof offenders back into society.Commissions can help to consolidate a democratic transition. By all the above means, they can signal a126
formal break with a dark and violent past, and the transition to a more open, peaceful and democraticfuture. If they are successful, truth commissions can have the effect of weakening anti-democraticactors who might otherwise continue to pursue their goals outside the democratic process.Reasons Why Truth Commissions Are Not Always UsedJust as truth commissions have the potential to generate many benefits for societies in transition,they also have the potential to produce certain harms. In fact, precisely to avoid specific harms, intransitional contexts ranging from Spain in the 1970s and Cambodia in the 1980s to Mozambiquein the 1990s, civil society and democratic political leaders have sometimes consciously opted againstany attempt at formally establishing the truth about the past. The hesitation to engage in officialtruth-seeking initiatives in these and other cases generally appears to be based on one or more of thefollowing considerations:Fear of ongoing or renewed violence or war. There is a perception that violence would increase, warcould return or the current violence or war would not end if old crimes were revisited.Ongoing conflict. The utility of a truth commission in a context where an intense armed conflict isongoing is particularly dubious because it would be virtually impossible to achieve the appearance ofneutrality, or to ensure victim and witness participation and security. In addition, geographical accessas well as access to key information is likely to be severely limited in such a context. At the same time,even in the middle of a conflict, it may be useful to begin to deliberate and plan some form of officialtruth-seeking to take place following the ending of the conflict and the beginning of a transition.Lack of political interest. There is little or no interest on the part of the political leadership in truthseeking and a lack of pressure from significant non-governmental actors.Other urgent priorities. The government and public want to focus on survival and rebuilding in theaftermath of extensive destruction.Insufficient capacity. There is a lack of resources or basic institutional structures to support a formaltruth-seeking process.Alternative mechanisms or preferences. The indigenous national culture is one that eschews confronting past crimes, or there are existing community-based mechanisms that can better respond to therecent violence.These all appear to be reasons why societies in transition forgo official truth-seeking and why itmay be preferable or necessary to focus instead on non-governmental truth-seeking mechanisms. Itwill, however, often be a difficult decision, particularly if a number of victims are calling for a truthcommission. Certainly, one should treat with considerable scepticism any decision to forgo officialtruth-seeking that is taken with little or no public consultation, or by parties who have an interest inpreventing investigation of the past.Potential RisksImproper motives. Even where a truth commission is established, there is no certainty that it has beenestablished with the proper motives or that it will achieve the many potential benefits discussedabove. For example, it is possible that a government may perceive a truth commission as a vehicle forthe indirect pursuit of political vendettas or as a way to delegate responsibility to others for difficulttasks that it is not willing to carry out itself. It may also make the commission deliberately weak andthereby make it easier to challenge or reject the results later. Cynical governments may also establishtruth commissions to try to insulate themselves against criticism from victims that not enough hasbeen done to redress the human rights abuses of the past.127
Bias. In addition, commissioners themselves may approach commission work with a bias thatwould make an objective and complete account of the past impossible.Unrealistic expectations. On a different level, commissions must also be careful not to foster unrealistic expectations on the part of victims and the public generally, which can lead to renewed frustrations and further distress for victims.In fact, experience to date shows that few past commissions have suffered from the first two possible risks listed above. In particular, where there are a strong civil society and vocal and independentmedia in a given country, many of these risks can be mitigated through public pressure. None of theserisks is unavoidable. However, in many transitional contexts neither civil society nor the media willbe particularly strong. As a consequence, these risks must be understood in advance by those whowould, in good faith, advocate the use of a truth commission.8.3.3 The Political ContextBecause truth commissions are created at points of political transition, there are a variety of constraining factors and enabling factors that can affect their establishment and operation.Constraining FactorsConstraining factors tend to be greatest where the transition process is relatively non-consensual,although they may be present to greater or lesser degrees in more consensual processes.Many political transitions are the result of bitter negotiation and may depend on the oppositionconceding amnesties or reserve domains of power to the outgoing regime as the price of obtainingformal control of the state. It is also typical for there to be widespread destruction of evidence ofcrimes by the outgoing regime. There may be ongoing and legitimate public fears about testifying(and even private intimidation and threats against witnesses) that can significantly hamper the abilityof a truth commission to get to the truth and force the commission to become a private and insome cases confidential process, rather than an open and public process. Weakness or corruptionin the administration of justice and lack of cooperation from the police or army can make a truthcommission something of a paper tiger, since commissions must rely to some extent on supportand cooperation from key actors in the principal institutions responsible for the administration ofjustice. Finally, the establishment and operation of a commission can be undermined where thereis widespread social identification with the perpetrators, rather than the victims, or when there arewidespread concerns about scuttling a fragile process of demobilization, disarmament and reintegration.Enabling FactorsEnabling factors tend to be strongest where the transition process is relatively free and consensual,although they may be present to greater or lesser degrees in constrained transitions as well. Thefollowing factors are particularly important: public support for the establishment of a truth commission; the presence of a vigorous and engagedcivil society (and in particular of strong victims groups, human rights groups, religious leaders andintellectuals); widespread social identification with the victims of the abuses; vocal and independent media; and persistent international attention and pressure.In the absence of these factors, a truth commission may not be useful, desirable or effective. Indeed,128
public ownership and the active participation of certain key social sectors (both national and international) are critical ingredients in ensuring a successful commission.8.3.4 SponsorshipTruth commissions tend to be created in one of the following ways: the executive branch of government passes a decree establishing the commission; the legislative branch of government passes legislation establishing the commission; or the government and armed opposition sign an agreement authorizing the establishment of a commission (and there may or may not be a subsequent decree or legislation).In many countries, the way in which a truth commission is created will have a direct effect on whatits powers can be. For example, in democratic countries with presidential or semi-presidential formsof governance, the executive branch of government usually cannot, on its own, confer search andseizure or even subpoena powers; that tends to be the exclusive preserve of the legislative branch.The same may also be true in respect of powers of reporting, including the question of whetherthe commission can make binding recommendations. Similarly, who establishes the commission canaffect the allocation of funding, since one branch of government may have greater access to resourcesand a greater commitment to the commissions work.8.3.5 DesignSome of the principal issues involved in establishing a truth commission are: the process of selection for and ultimate composition of the commission; the design of the commissions mandate and powers; and decisions about material and human resources.CompositionPerhaps more than any other single factor, the persons selected to manage a truth commission willdetermine its ultimate success or failure. In fact, several commissions have run into serious problemsthat were clearly rooted in weak management by commissioners. Although commissioners are generally not involved in the day-to-day administration of a commission, they usually direct investigations,shape commission policy and have the last word regarding what will go into the final report. As thepublic face of the commission, the commissioners personal and political authority can also be criticalin dealing with recalcitrant authorities.The members of most truth commissions have been appointed through procedures that reliedon the good judgement of the appointing authority, with little to no consultation of civil society.This was the case, for example, in Argentina, Chad, Chile, Haiti and Uganda. In more recent years,however, the selection of commissioners has increasingly been conducted through more creative andconsultative processes. The key lesson from past truth commissions is that a commission will generallygarner greater public and international support where its members are selected through a consultativeprocess and where an honest attempt is made to ensure a fair balance in the representation of politicalviews, ethnic or religious groups and gender.A powerful example of the consultative approach to commissioner selection is that of the SouthAfrican TRC. A selection committee was formed that included representatives of human rights organizations. The committee called for nominations from the public and ultimately received some 300nominations, which it then trimmed down to 50 people to be interviewed. The interviews took place129
in public session and were closely followed by the press. The selection committee eventually narrowedthe finalists to a list of 25 candidates, which it sent to President Nelson Mandela for final selection.To provide geographical and political balance, Mandela added two members who did not go throughthe full selection process.Another good example comes from Sierra Leone. There,the statute establishing the truth commission designated theA commission will generally garSpecial Representative of the UN Secretary-General as selecner greater public and internation coordinator and directed him to call for nominations fromtional support where its memthe public. At the same time, a selection panel was formedbers are selected through awith representatives appointed by the former armed opposiconsultative process and wherean honest attempt is made totion, the president, the governmental human rights commisensure a fair balance.sion, the non-governmental inter-religious council and a coalition of human rights groups. This panel interviewed the finalists, ranked and commented on each and submitted the evaluations to the selection coordinator, whothen selected the final four national candidates (the three international members of the commissionwere selected by the UN High Commissioner for Human Rights (UNHCHR). The lists of bothnational and international commissioners recommended were then submitted to the president ofSierra Leone for appointment. The commissioners were appointed in May 2002.A similar consultative selection process was also employed in East Timor in establishing its truthcommission.Mandate and PowersEvery truth commission to date has been unique, differing in important ways from commissionsin other countries. Truth commissions are inherently flexible and each new one can be crafted torespond to the specific needs and circumstances of the country in which it will work. While muchcan be learned from prior experience, including from the specific language used in the truth commission legislation of other countries, it is essential that any new truth commission be derived froman indigenous process of strategic planning and reflection on the needs and opportunities of theparticular country.In recent years, it has become clear that truth commissions enjoy greater legitimacy where theprocess of defining their powers and mandate includes activeinvolvement from many different sectors of society. AlthoughTruth commissions enjoy greatthere is often a need to move quickly at a point of transition,er legitimacy where the proit is important to attempt to build a broad base of support forcess of defining their powersthe commission among several important constituencies. Inand mandate includes activeinvolvement from many differsome countries where the government has established a truthent sectors of society.commission with virtually no consultation with civil society,the commissions have suffered as a result. For example, inGuatemala it took time and considerable effort for the truth commission to gain the backing of thereligious and advocacy groups on which it depended to undertake its work.In terms of the actual content of a commissions mandate, the sponsors of the commission - whetherthe executive or legislative branch of government or the parties to an armed conflict - will typicallygive consideration to a number of key issues. Among the most important will be the following:Objectives. The terms of reference of the commission should generally set out its main objectives.These might include, for example, establishing the truth about the past, contributing to national rec130
onciliation, making recommendations to help vicBox 8.3: Key Variables in a Truth Commission Mandatetims and preventing a relapse into war or authori objectivestarian rule. The objectives will serve as the guide period of operationfor the commissions work and the yardstick against types of violation under investigationwhich it will be assessed. period of time under considerationPeriod of operation. The terms of reference will also functionsneed to establish start and end dates for the opera powerstion of the commission. These dates can be flexible, sanctionsallowing for one or more possible short-term exten follow-upsions. However, the total possible period of operation must be fixed, otherwise the commission cango on for too long, lose focus and ultimately cease to interest the public. Past experience indicatesthat a time frame of 12 years of operation is generally desirable.Types of violation under investigation. The terms of reference should set out what types of violationthe commission is to examine. Human rights violations, of course, tend to be the focus of truthcommission work; however, there are many different types of human rights violations and often toomany for a single commission to tackle meaningfully in such a short period of time. Accordingly, thecommission might be restricted to examining or prioritizing those violations that were most prevalentor considered to have been most serious or pernicious in that particular society. Such prioritizationcan, however, create understandable frustration on the part of victims of those violations that areexcluded from the commissions mandate. When that is the case, it is essential that other publicpolicies and mechanisms be implemented to assist those persons.Period of time under consideration. The specific span of time the commission is to inquire intoshould be clear from the start. This is often a controversial aspect of a com missions mandate, particularly where there is a sense of victimization on the part of both or all sides of a past conflict.Some commissions have examined violations that took place over a 30-year period, while others haveexamined violations that occurred over much shorter periods of time. The particular span of timewill generally be chosen on the basis of those periods in the nations history when the worst or thegreatest number of violations took place, and accordingly will often correspond to periods of civilwar or authoritarian rule. To avoid the appearance of bias, it is generally important for the time spanchosen to be consecutive and not broken up to focus only on selected periods in a nations history.Functions of the commission. The key functions of the commission through which it will pursueits objectives should also be indicated in the terms of reference. Normally these include publicizingits mandate, carrying out research and investigation, and submitting a final report setting out itsfindings and recommendations. Some commissions have also been directed to identify the individualsresponsible for specific violations; in other cases commissioners have either been precluded fromnaming names or left with the discretion to decide for themselves. Truth commissions are alsoincreasingly being authorized to hold public hearings, inspired in large measure by the power of theTRC experience in South Africa. In a few cases, truth commissions have also been asked to providesome form of emotional support or counselling to victims and witnesses, who may experience traumain the course of recounting their stories.Powers. The powers to be given to a commission will help to determine its strength and reach. Ata minimum, commissions generally need to be able to interview anyone who can provide relevantinformation, receive the cooperation of public authorities and carry out any necessary on-site visits(ideally unannounced). Increasingly, however, commissions are being given powers that extend well131
beyond those just mentioned to include powers of subpoena, search and seizure powers, and in somecases even witness protection. The conferral of such powers must be carefully balanced against theneed to preserve the non-judicial character of the commission process. Each addition of such powersmoves the process further away from that of a truth commission towards a court process.Sanctions. The commission should generally be given sufficient power to ensure that sanctions perhaps fines, imprisonment or both - can be brought against anyone who improperly interferes withor knowingly provides false information to it, or fails to respond to a subpoena without appropriatejustification.Follow-up. The terms of reference should ideally set out what obligations, if any, the governmentwill have both to publicize the commissions final report and to implement its recommendations.Consideration will also have to be given to the auditing, safekeeping and general subsequent use to bemade of the commissions files and records after it has ceased its operations.Resource IssuesEven the best-designed mandate will not ensure a successful truth commission if it lacks adequatematerial and human resources. This is not to suggest that truth commissions are expensive undertakings. In fact, with the exception of the truth commissions in South Africa and Guatemala (which bothhad multimillion dollar budgets), truth commission budgets have all been less than USD 5 millionand frequently less than USD 1 million. However, as the terms of reference of truth commissionsbecome increasingly sophisticated and as the international community takes an increasing interest inthese bodies, the average budget of new commissions has risento USD 510 million. This is true of several of the commissionsThe average budget of newnow in operation or being set up, including those in Peru, Eastcommissions has risen to USD510 million.Timor, Ghana and Sierra Leone. In terms of the source of funds,the trend is to combine national government funds with fundsreceived from donor states and private foundations, where available. Office space and equipment aregenerally provided directly by the national government.The truth commissions in South Africa and Guatemala hired more staff than previous commissions - over 200 multidisciplinary staff each, including both nationals and non-nationals. Currentcommissions have followed a similar approach to staffing, although budget constraints may limit thenumbers of persons hired. In those cases, greater reliance may be placed on staff seconded from thegovernment.8.3.6 Truth Commissions in OperationThe Preparatory PhaseIt is generally a good idea for truth commission members to try to devote their first weeks afterinauguration to essential preparatory tasks. These may include: developing a staffing plan and hiring staff; drafting internal regulations and policies; adopting a work plan; designing and installing an effective database for the storage, organization and retrieval of recordsand data; preliminary background research; collecting existing documentation from national and international NGOs, the UN, foreign governments and other sources;132
Undertaking these preparatory activities in a timely manner can serve the commission extremely wellin both the short and the long term. Indeed, past experience suggests that a commission that does notget off to a good start will lose precious time and political capital in the first year of its life.Principal Activities Of A Truth Commission During Its LifetimeOutreachPublic outreach by a truth commission is critically important. The nature and the extent of a commissions outreach efforts will profoundly affect its access to information, its effectiveness in addressingthe needs of victims, its ability to manage public expectationsand its general reputation in the eyes of the public. Some ofPublic outreach by a truth comthese efforts can be carried out directly by the commissionmission is critically important.through holding public information meetings and throughthe preparation, publication and dissemination of pamphlets,videos and publications in popular form about the role and mandate of the commission. The commission can also achieve its outreach goals by engagement with and effective use of NGOs, localgrass-roots organizations and the media. Relations with civil society and the media can, however,be complicated by the fact that they will often play a dual role vis--vis the commission, workingsimultaneously as partner to it and as critical watchdog of its procedures and actions.Statement-TakingMost truth commissions collect most of their information through private, closed-door meetings,usually by commission staff taking testimony from individual victims in one-to-one encounters. Thisprocess is referred to as statement-taking and typically involves both a meeting and the filling outof a statement form by the deponent. Statement-taking is important in at least two ways: it furthersthe goal of establishing the truth about the past; and it provides an opportunity for victims to comeforward and recount their traumatic experiences in a sympathetic and generally safe environment.Because of the sensitive nature of the process and the often horrific character of the informationinvolved, statement-taking requires staff to exhibit concentration, respect and emotional control, andshould generally involve intensive training before it is undertaken. Statement-takers need to knowwhen and how to listen and how to respect the often unexpected rhythm and logic of a personsmemory. Although there can be a tension between the desire to focus only on the specific type ofinformation being sought by the commission and the need to allow the deponent to tell the story inhis or her own way, a statement-taker must find a way to strike the right balance.For most victims and witnesses, a statement-taker will be the only personal contact they havewith the commission, and as a result the impressions they leave on deponents and communities areespecially significant and enduring.Research and InvestigationResearch units and police-like investigation units are increasingly becoming a part of the structure oftruth commissions. Such units, however, tend to form only part of commissions with large budgetsand robust mandates, such as the TRC in South Africa. Research units tend to be relatively small but133
staffed by persons with strong research skills and familiarity with national think tanks, NGOs, localarchives and other key sources of information. In contrast, investigative units may include peoplewith legal backgrounds or even experience in law enforcement. Many truth commissions combineresearch and investigation into one department, which has many advantages.Data ProcessingTruth commissions have to deal with enormous volumes of information which must be organized andsystematized. This requires, among other things, an effective database for the storage, organizationand retrieval of records and data. Generally speaking, commissions which do rigorous data collectionand analysis will be better able to defend their findings on scientific grounds. A strong data management system will help arrive at a big picture analysis of historical patterns that can show, for example, the exact ratio of violations committed by one side to those committed by the other. In termsof staffing, commissions should hire a programmer to write and maintain the basic software and toextract the data in formats appropriate for the analysts. They will also need professional statisticians(or social scientists fluent in statistical methods) to review the data before it is published, and a teamof data processors to input all the information received by the commission.Public HearingsMost past truth commissions have not held public hearings. There is, however, an increasing trend togive commissions a mandate to do this. This is the case for the new commissions in Peru, East Timorand Sierra Leone, to name only a few.There are persuasive reasons for a commission to hold public hearings. By giving victims andsurvivors a chance to tell their story before a public audience - particularly where the hearings areaired on television or the radio - a commission can formally acknowledge past wrongs, encouragepublic understanding and sympathy for victims, reduce the likelihood of certain sectors of societycontinuing to deny the truth, and enhance the transparency of its work. Public hearings can also helpto shift a truth commissions focus from product (i.e., its final report) to process, by engaging thepublic as audience, encouraging press coverage of its issues over a longer period of time and generallystimulating an authentic national discourse about the past.The truth commissions in Uganda, Sri Lanka and Nigeria have all held public hearings, but itwas the public hearings of the South African TRC that had the greatest international impact. Notonly were there hundreds of days of public hearings; there was also a unique diversity in the types ofhearing held, including victim hearings, amnesty hearings, special thematic hearings (e.g., on womenand children), special event hearings (e.g., on the 1976 Soweto student uprising), institutional hearings (e.g., with the legal and health sectors) and political party hearings. Lured by the powerfulexample of South Africa, a number of analysts have recommended that all truth commissions shouldhold proceedings in public.There may, however, be legitimate reasons not to do so, including security risks for commissionersand victims, time and resource constraints, and concerns about judicializing commission proceedings. At the same time, public truth proceedings are potentially powerful enough to at least warrantconsideration by all commissions.Emotional SupportTruth commissions seem to satisfy a clear need on the part of some victims to tell their stories, belistened to and ultimately be healed in some way. For others, however, the process can lead to re134
the commission.Few of the issues surrounding truth commissions have attracted as much controversy as this question of naming names, and the issue remains a point of tension for those crafting new bodies.The disagreement is between two contradictory principles, both of which can be strongly argued byrights advocates. The first is that due process requires that individuals accused of crimes be allowedto defend themselves before being pronounced guilty. Due process is violated if a commission, whichis different from a court of law and does not have the same strict procedures, names individualsresponsible for certain crimes. The second principle is that telling the full truth requires namingpersons responsible for human rights crimes when there is clear evidence of their culpability.The question therefore becomes: What standards and procedures of due process should apply toindividuals who may be named in a report? Should they be informed of the allegations against themand told that the commission intends to name them in a public report? Should they be given theopportunity to respond to the evidence against them and offer a defence? Should the commission beobligated to state clearly that its own conclusions about individual responsibility do not amount tocriminal guilt? These are the sorts of issue that commissions must grapple with.Past experience seems to suggest that the best practice is to allow commissions to name namesbut ultimately to leave it at their discretion whether or not to do so. This is because there may be arange of legitimate reasons for not naming names. For example, there may be real security risks forcommissioners, victims or witnesses, or there may be due process problems such as a lack of sufficientevidence to publicly condemn an individual, or an inability toafford proper notice or procedural safeguards for those accusedFew of the issues surroundingof violations.truth commissions have attracted as much controversy as theIf a commission decides not to name perpetrators, it shouldquestion of naming names.at least be required to set out its reasons for not doing so, andthese reasons must be politically, morally and legally defensible.Where a commission does decide to name names, it must clearly state that its findings do not amountto a finding of legal or criminal guilt. As to the due process entitlements that should apply, it seemsthat at a minimum persons who might be named should be (a) informed without undue delay ofthe allegations against them and of the intention to name them in a public report, and (b) given theopportunity to respond to the evidence against them and offer a defence, but not necessarily throughan oral hearing. Additional due process entitlements, such as the right to counsel or the right tocross-examine witnesses, should be offered only in very exceptional circumstances.As a general rule, it is both unnecessary and undesirable to burden truth commissions with dueprocess requirements equivalent to those of a court. Burdening a commission in this way wouldseriously undermine its ability to carry out its most essential duties by considerably slowing downthe investigation and hearing process, stifling its capacity to gather facts and evidence, and generallyover-judicializing commission procedures.This is not to say that commissions ought to sacrifice the rights of perpetrators in the name ofthe victims. It is simply to emphasize that a rational balance must always be found between the dualinterests of fairness and efficiency.The Challenge of Engaging Perpetrators in the ProcessOne of the greatest shortcomings of past truth commissions has been their inability to secure meaningful cooperation from perpetrators, whether in the police, the military, the intelligence agenciesor elsewhere. The one significant (and controversial) exception is the TRC in South Africa, which136
had the power to grant individual amnesty to perpetrators of politically motivated crimes. Amnestywas granted to those who fully confessed to their involvement in past crimes and showed them tobe politically motivated. For particularly serious crimes, the applicant was required to appear in apublic hearing to answer questions. Several thousand perpetrators came forward to the commission todisclose their involvement in and knowledge of past human rights violations under this process.Of course, the use of a truth-for-amnesty formula as a means to secure perpetrator cooperationraises difficult moral, legal and political issues. Amnesties generally violate the right of victims toredress and will generally be inconsistent with a states obligation under international law to punishperpetrators of serious human rights crimes. They can also subvert the rule of law by allowing onlycertain groups of perpetrators to escape liability. They can undermine both specific and general deterrence, and promote cynicism and disillusionment among victims of human rights abuses, which inturn could cause them to take the law into their own hands and embark on acts of private vengeance. On the other hand, a truth-for-amnesty arrangement can be more defensible where: (a) thecommissions power has been given reasonably democratically; (b) amnesty is given on an individual,not class, basis; (c) a form of public procedure is imposed on its recipients; (d) victims are given anopportunity to question and challenge an individuals claimto amnesty; and (e) reparation payments are made to victims.One of the greatest shortAn amnestys scope can also be narrowed by making the grantcomings of past truth commissions has been their inability toof amnesty reversible following the commission of a new andsecure meaningful cooperationsimilarly grave offence.from perpetrators.To date, only South Africa has used the truth-for-amnestyformula. The example should be copied only with the greatestcaution, and only where there are similarly compelling circumstances. First, in the absence of a credible threat of prosecution (a factor which is rarely present in transitional contexts), it is unlikely thatperpetrators will feel compelled to apply for an amnesty. They are more likely to prefer to remainsilent, thereby avoiding any risk of public shame or social ostracism. Second, a range of mechanismsto encourage perpetrators to come forward may be available that are more principled and practicalthan the granting of amnesty and could better serve the causes of truth and reconciliation. Forexample, commissions might offer mechanisms for testimony to be provided on an anonymousor confidential basis; they might use a subpoena power; or they might be able to offer a witnessprotection/relocation service. Another possibility is that truth commission sponsors could create anew punishable offence of failure by witnesses (other than victims) to come forward to the commission with information about past crimes.None of these alternative approaches will necessarily lead to extensive cooperation from perpetrators and reluctant witnesses. Without them, however, cooperation may be virtually non-existent.Follow-Up EffortsOnce a truth commission submits its final report, archivesits files and is formally dissolved, the task of carrying out itsrecommendations will naturally fall to others. Unfortunately,the implementation of recommendations has frequently beena major shortcoming for truth commissions, even where therehas been a legal obligation on the part of government to implement them (as there was in El Salvador, for example).One of the main causes of non-implementation appears to
when sufficient political will is present, there may not be sufficient institutional capacity or funds.Whichever the case, it is critically important for truth commissions to suggest mechanisms that canensure proper monitoring and follow-up. Sometimes truth commissions are fortunate in that a planof follow-up is built into the mandate, as is the case in Sierra Leone. For most, however, a system offollow-up must be recommended. In Chile, the commission recommended the creation of a publiccommission to continue some of its own work and to facilitate compliance with reparation measures.In Guatemala, the commission recommended the creation of a follow-up institution (the Foundationfor Peace and Harmony, Fundacin por la Paz y la Concordia, to be made up of government and civilsociety representatives) to implement some recommendations directly and monitor the implementation of others.8.4 Concluding RemarksThis chapter has sought to explain in practical terms what a truth commission is, how it operates andwhat it can potentially achieve for a country in transition.Scepticism has been expressed here as to the universal utility of truth commissions and as to thestrength of the contribution truth-seeking can be expected to make to reconciliation, but it is nevertheless important to appreciate the sometimes remarkable but little-known contributions that truthcommissions have occasionally made. For example, in Chile, almost entirely on the basis of thecommissions findings, the state initiated a broad reparation programme for many victims of thePinochet era. Critical judicial reforms were put in place in El Salvador following the truth commission investigations there. In South Africa, very few people will now defend or try to justify the systemof apartheid or question the fact that brutal practices were used to keep apartheid in place.A truth commission is, however, only one of the many mechanisms available to countries in transition that are seeking to consolidate democracy, human rights and the rule of law. Other possiblecomponents of a full programme of transitional justice could include trials, vetting programmes, legalreform, victim reparation, and restitution and reintegration measures. There appears to be a newtrend towards the integration or synthesis of these different elements of transitional justice. This canbe seen in places ranging from Sierra Leone (where a truth commission and a hybrid nationalinternational criminal court will operate alongside one another) to Rwanda (where the new gacaca systemis seeking to merge prosecutorial goals with the pursuit of truth and community reintegration) toEast Timor (where a truth commission will serve as a facilitator of refugee return, the prosecution ofserious crime, and restitution and reintegration for less serious offences). There are many challengesand complications in trying to integrate transitional goals and mechanisms in this way, generatingcreative and original solutions. Clearly the full story about truth commissions has yet to be written.
Other SourcesKritz, Neil (editor), Transitional Justice: How EmergingDemocracies Reckon with Former Regimes, Vol. I-III.Washington, DC: United States Institute of PeacePress, 1995.Nunca Mas: The Report of the Argentine NationalCommission on the Disappeared. New York: FarrarStraus Giroux, 1986.Report of the Chilean National Commission onTruth and Reconciliation (translated by Phillip E.Berryman; introduction by Jos Zalaquett), NotreDame: University of Notre Dame Press, 1993.From Madness to Hope: the 12-year War in El Salvador:Report of the Commission on the Truth for El Salvador.New York: United Nations, 1993.Informe de la Comision de la Verdad de Panama, 2002.(Panama Truth Commission Report).Biggar, Nigel (editor), Burying the Past: Making Peaceand Doing Justice After Civil Conflict, Washington,D.C.: Georgetown University Press, 2001.
Internet SourcesReport of the Truth Commission on El Salvador,http://www.derechos.org/nizkor/salvador/informes/truth.htmlCommission for Reception, Truth and Reconciliationin East Timor,http://www.easttimor-reconciliation.orgPeru Reconciliation Commission,http://www.cverdad.org.pe/Sierra Leone Truth and Reconciliation Commission,http://www.sierra-leone.org/trc.html139
The truth commissions of South Africa and Guatemala were two of the largest and most prominentof recently-completed commissions. This case study is divided into two parts: a broad overviewof the context and work of each commission; and a brief review of the main similarities and differences between them.South AfricaDuring 45 years of apartheid and almost 30 years of armed resistance by the African NationalCongress (ANC) and others, tens of thousands of South Africans suffered serious human rights violations and war crimes. The greatest number of deaths took place in the conflict between the ANC andthe government-backed Inkatha Freedom Party.Serious discussions about the idea of a truth commission began after Nelson Mandela was electedpresident in 1994. After considerable input from civil society and hundreds of hours of hearings,in 1995 the South African Parliament passed the Promotion of National Unity and ReconciliationAct establishing the Truth and Reconciliation Commission (TRC). Following a public nominationand selection process, 17 commissioners were appointed. The act provided the most complex andsophisticated mandate for any truth commission to date. It gave the TRC the power to grant individualized amnesty, search premises and seize evidence, subpoena witnesses and run a sophisticatedwitness protection programme. With a staff of up to 350, a budget of some USD 18 million each yearfor two-and-a-half years (plus an additional, smaller budget for another three years) and four largeoffices around the country, the TRC dwarfed previous truth commissions in its size and reach.The Promotion of National Unity and Reconciliation Act designed the TRC to work in threeinterconnected committees. The Human Rights Violations Committee was responsible for collectingstatements from victims and witnesses and recording the extent of violations; the Amnesty Committeeprocessed and decided on individual applications for amnesty; and the Reparations and RehabilitationCommittee (RRC) designed and put forward recommendations for a reparation programme.The TRC took testimony from 23,000 victims and witnesses, 2,000 of whom appeared in publichearings. Media coverage was intense: most newspapers ran a number of stories on it every day,and radio and television news often led with a story on the latest hearings. The TRC also heldspecial hearings focused on sectors or key institutions of society and their response to or participationin abusive practices. Other special hearings looked at important thematic issues, while still othersfocused on uniquely significant events in the countrys history.The greatest innovation of the TRC, and the most controversial of its powers, was its ability to grantindividual amnesty for politically motivated crimes. The amnesty-granting power was the subjectof an unsuccessful constitutional challenge early in the life of the TRC, as well as of numeroussubsequent court battles. The TRC received over 7,000 applications for amnesty, most of which wereultimately refused. Amnesty was granted only to those who fully confessed to their involvement in140
past crimes and showed them to be politically motivated. For particularly serious crimes, the applicantwas required to appear in a public hearing to answer questions from the TRC, from legal counselrepresenting the victims and their families, and from victims themselves. The Amnesty Committeeconsidered a number of factors in determining whether the applicant satisfied the terms for amnesty,including, for example, whether there was proportionality between the crime committed and thepolitical objective pursued. Neither an apology nor any sign of remorse was necessary for amnesty tobe granted. However, crimes committed for personal gain or out of personal malice, ill will or spitewere not eligible for amnesty.Given the detailed public disclosure that was required to gain amnesty, it was clear that this truthfor-amnesty offer would only be taken up by those who reasonably feared prosecution. It was hopedthat a number of early trials would increase the perceived threat of prosecution. A few high-profiletrials for apartheid-era crimes did successfully result in convictions and long sentences, which spurredan increase in amnesty applications. However, when another important trial (that of former ministerMagnus Malan and 19 others) ended in acquittal, it was clear that the threat of prosecution wouldnot be strong enough to persuade many senior-level perpetrators to apply for amnesty. The TRCthen tried to increase the pressure on perpetrators to come forward by holding some investigativehearings behind closed doors. In the end, however, many former perpetrators took the risk not toapply, particularly political leaders of the apartheid government and senior officers of the army.The TRCs five-volume final report was released in October 1998 and sparked intense controversy,including an attempt by the ANC to block its release. It was formally considered in parliamentseveral months later, but the government made no commitment to implementing the TRCs manyrecommendations, including - most controversially - the recommendations on victim reparation. TheAmnesty Committee, which was not able to conclude its review of all amnesty applications by theappointed deadline, continued to hold amnesty hearings for another two years. The full TRC wasexpected to reconvene in late 2002 to release an addendum to the final report that will incorporatethe final investigations and amnesty hearings.Looking back at the TRC experience, it is difficult not to marvel at its level of ambition andoriginality. For all the criticisms against it, the TRC marked a decisive turning point in South Africanhistory by narrowing the range of permissible lies. Like no other commission before it, the TRChad a truly international impact, leading to great interest in this kind of mechanism all around theworld. Although the legacy of apartheid continues to haunt South Africa, this cannot be attributed toparticular failures of the TRC. Such a legacy cannot be fully addressed, nor the damage rectified, in afew short years. New initiatives - possibly including long-overdue prosecutions of persons implicatedby the TRC - will probably be required to fully consolidate democracy and human rights in the newSouth Africa.Guatemala
The civil war in Guatemala, fought between anti-communist government forces and leftist rebelsGuatemalan National Revolutionary Unit (Unidad Revolucionaria Nacional Guatemalteca, URNG),lasted over 30 years and resulted in some 200,000 deaths and disappearances. Among the mostcontroversial issues on the table during the peace negotiations was the question of how past humanrights violations and war crimes would be addressed during the transition to peace. This was resolvedin June 1994 when the government and the URNG agreed to establish a Commission for HistoricalClarification (Comisin para el Esclarecimiento Histrico, CEH). It would, however, be anotherthree years until the final peace accords were signed and the CEH would begin its work.
The idea of a truth commission attracted intense interest from civil society and victims groups inGuatemala, which lobbied negotiators hard during the talks. Their main concern was with the shorttime period the CEH was given (six months, with the possibility of extension for another six months)and with the stipulation that the CEH would be precluded from naming names of perpetrators.Although there was considerable anger that the URNG agreed to these limitations, civil societygradually came to support the commission after the commissioners were appointed and the CEHhired an impressive team of staff. In the end, the CEH was able to operate for a total of 18 months.The chair of the CEH was a non-national appointed by the UN Secretary-General, while the othertwo commissioners were nationals selected by the chair with the agreement of the two parties. TheCEH operated in several phases, with staff size ranging from 200 at its peak (with 14 field offices) tofewer than 100 for the months of analysis, investigation and report writing. Its staff included bothnationals and non-nationals. Its total budget was approximately USD 11 million. The CEH receivedless than USD1 million from the Guatemalan Government; the remainder of the funding came fromthe US, Norwegian, Dutch, Swedish, Danish and Japanese governments. The mandate of the commission was to clarify the human rights violations and acts of violence committed between 1962and 1996 and connected with the armed conflict. It was required to prepare a final report based onits investigations, containing conclusions as well as recommendations to encourage peace, democracyand human rights, and to preserve the memory of the victims. The commissions proceedings wererequired to be confidential; however, it was obligated to publicize its establishment and mandate, andto invite interested parties to offer testimony.Many Guatemalan villages are very isolated, and CEH staff sometimes had to trek by back roadsto reach scattered communities, in some cases walking for six or eight hours through the mountainsbefore arriving at a village to take testimonies. Upon arrival in some locations, staff sometimes discovered that the community was not even aware that the civil war was over, and more than oncethe commission staff were assumed to be guerrillas themselves. Despite these challenges, CEH staffwere ultimately able to visit almost 2,000 communities and register 7,338 testimonies, including 500collective testimonies.The CEH also requested the declassification of files from the US Government with the help of theUS National Security Archive. This resulted in the successful declassification of thousands of documents. Considerably less information was forthcoming from the Guatemalan armed forces themselves, which claimed to have no records on the events under investigation. The CEH also incorporated the data from two national NGOs, in particular two projects that were established as alternativetruth efforts several years before the start of the CEH. Both projects had collected thousands oftestimonies, many of them audiotaped and transcribed, leaving behind a detailed database of casesand even published reports.The CEH completed its lengthy and hard-hitting report in February 1999, releasing it to the publicin an emotional ceremony attended by thousands. The report described acts of extreme cruelty andnoted that a climate of terror permeated the country as a result of these atrocities. The CEH alsoanalysed the economic costs of the armed conflict, concluding that costs of the war, including theloss of production due to death, equalled 121 per cent of the 1990 gross domestic product (GDP).Ninety-three per cent of the violations documented were attributed to the military or state-backedparamilitary forces; three per cent were attributed to the URNG. Perhaps the CEHs strongest conclusion, however, was that, on the basis of the patterns of violence in the four regions of the countryworst affected by it, agents of the state committed acts of genocide in the years 19811983 againstgroups of Mayan people. Although the CEH was precluded from naming those responsible, it did142
report that the majority of human rights violations occurred with the knowledge or by order of thehighest authorities of the State. The CEH also submitted a long chapter on recommendations.Three weeks after the release of the final report, the government responded with a statement thatsuggested that it considered all relevant matters in the CEHs recommendations to be sufficientlyaddressed in the peace accord. However, as a result of persistent pressure from civil society, someof the key recommendations may yet be implemented. For example, the CEH had recommendedthe establishment of a joint governmentcivil society council to oversee the follow-up process, anda decree has now been passed authorizing its establishment (although progress on implementing thedecree has been very slow). As to the recommendations concerning accountability for the worst abusers, it is also encouraging to note that there have been some judicial investigations into gross humanrights violations, albeit at the initiative of victims and human rights groups, not the state.Despite these minor advances, the realities of life in Guatemala remain largely unchanged. Therehas not been a renewal of conflict, but most of the root causes of the conflict persist, includingpervasive insecurity, lack of justice, racism, and extreme and widespread poverty. Moreover, there hasbeen limited dissemination of the CEHs final report, so that many of the communities that sufferedthe worst abuses often know little about the commissions work.Similarities and DifferencesThe differences between the Guatemalan and South African truth commissions are striking. Indeed,there are a number of important features of the South African TRC which stand out in comparisonto most other truth commissions to date (such as the unique truth-for-amnesty arrangement, itsextensive media coverage and its significant powers of investigation).Table 8A.1 illustrates the differences between the two. The points of similarity were: Both had large, multidisciplinary staffs. Both had relatively large budgets. There was strong involvement of civil society in both. Both presented detailed and comprehensive final reports. The periods of time they investigated spanned more than 30 years. Both received funds from government and from foreign sources. The recommendations in their final reports were not binding. Both took thousands of statements from survivors and witnesses. The selection of commissioners in both cases involved a consultation process. Staff travelled long distances to remote areas to take statements from victims. Both relied on prior investigative reports done by local NGOs.
The Differences between the Guatemalan and South African Truth CommissionsGuatemala
South Africa
No public hearings
3 commissioners
17 commissioners
No amnesty-granting power
Amnesty-granting power
Significant UN role
No UN role
Set up by legislation
Other Sources
Internet Sources
Reparationste f va n d e gi n ste
9.1 IntroductionThe concept of political transition in a post-conflict state and the notion of reparation are in theirvery essence interrelated and interdependent. On the one hand, reparation is a key element ofany true transitional justice and reconciliation process. A transition must go beyond the introduction or reform of norms, institutions and procedures to mandate elected representatives ifit is to eliminate discrimination and imbalances. This alsoinvolves the recognition and protection of individual rightsReparation is a key element ofand freedoms, and the state is under a corresponding obliany true transitional justice andgation to provide redress if there have been abuses of thesereconciliation process.fundamental rights by state actors or former armed insurgents. On the other hand, transitional justice in practice hasreshaped the notion of reparation. The concept has long been oriented to compensation and tothe past. Today, however, reparative measures taken in the context of actual political transitionshave broadened the very definition of reparation, which today includes important symbolic andfuture-oriented measures.9.2 What is Reparation?9.2.1 Clarification of the TerminologyIn international and national norms and case law, and in the political and historical literature, different terms are used to express sometimes identical or similar concepts - reparation, restitution,compensation, rehabilitation, satisfaction and redress. This chapter will use the term reparation asthe most comprehensive notion, including all these concepts and covering a wide range of measuresthat are taken to redress past wrongs which may or may not qualify as human rights violations and/oras criminal offences. It will therefore not limit the use of the term reparation to the international lawof state responsibility.Traditionally in international law, restitution (or re-establishment of the situation which existedbefore the wrongful act was committed) was the main and preferred form of reparation, and wastherefore often considered almost synonymous with reparation. It remains an important componentof reparation as it relates to essential belongings, such as the return of property, the restorationof liberty, citizenship and other legal rights, the return to place of residence and the restoration ofemployment.Compensation is the payment of money as a recognition of the wrong done and to make goodthe losses suffered. A distinction can be made between nominal damages (a small amount of moneysymbolizing the vindication of rights), pecuniary damages (intended to represent the closest possiblefinancial equivalent of the loss or harm suffered), moral damages (relating to immaterial harm, suchas fear, humiliation, mental distress or harm to a persons reputation or dignity) and punitive damages(which are of a different nature, and intended rather to punish or deter than to make up for the losssuffered).145
Rehabilitation can be defined as the restoration of a victims physical and psychological health.Including rehabilitation in a full reparation programme will normally require an initiative on thepart of the state and its active involvement in the provision of medical and psychological care andof legal and social services. (The mere reimbursement of medical and other related expenses can beconsidered a form of compensation.)The term satisfaction applies to those types of redress that do not aim to make good specificindividual losses or harm. The main forms of satisfaction are: (a) the verification of the facts andthe disclosure of the truth; (b) an apology; (c) sanctions against individual perpetrators; and (d)commemorations of and tributes to the victims.All reparation measures have some minimal deterrent effect. Guarantees of non-repetition arespecifically and purely preventive: they include structural reforms relating to the independence ofthe judiciary, civilian control of military and security forces, and the protection of those who defendhuman rights.9.2.2 The Nature and Types of ReparationThe terminological clarification above has shown that reparation is an evolving concept and one thatis becoming broader. Policy makers and victim support groups designing or advocating a reparationprogramme need to be aware of the different types of reparation measures: reparation rights and reparation politics; individual and collective measures; financial and non-financial measures; and commemorative and reform measures.Reparation Rights and Reparation PoliciesSome forms of reparation may find a legal basis in domestic law or in international human rights law,while other forms are a matter of policies and priorities. For instance, the right to compensation forvictims of torture is an individual subjective right in most domestic legal systems and is justiciablein criminal, civil, administrative or other proceedings, depending on the national legal setting. Inaddition, after domestic remedies have been exhausted, international complaints procedures may beavailable, as a result of which an international judicial body, such as the Inter-American Commissionon Human Rights or the European Court of Human Rights, can order a state to pay compensationin cases where the court finds that a violation has occurred.There is no individual subjective right to other reparation measures, such as reform of the judiciaryor the commemoration of torture victims. Even so, the impact of these elements of reparation maybe much more important at a structural level, and they must therefore logically be included in areparation policy. The work of international reporting mechanisms (such as the UN CommitteeAgainst Torture) may be helpful for civil society groups when designing proposals or lobbying forsuch structural reparation measures.It is nevertheless important to stress the interaction between the enforcement of reparation rightsand the adoption of reparation policies. In Argentina, for instance, proceedings instituted by victimsbefore the Inter-American Commission on Human Rights were an essential incentive for the adoption of a national reparation policy, which included, among other things, the issuing of certificatesof forced disappearance. This allowed the relatives of those forcibly disappeared, for instance, todeal with questions of inheritance.
achieve this, acts of revenge by victims of past oppression should be stopped - or, putting it morepositively, victims legitimate hunger for justice should be accommodated. This entails public recognition of their status as victims, public recognition of their suffering and the damage they havesustained, and a serious public effort to repair at least symbolically the harm done. It is a crucialinstrument in allowing a society to get on with life.Acknowledging and repairing the suffering of victims is a way of recognizing them as humanbeings, as equals, with their own human and civic dignity. In order to get on with life individually andto be able to function properly in the new society, each victim needs a renewed self-confidence. Forthe restoration of his or her psychological health and dignity, reparation - not only in its immaterialbut also in its material, financial dimension - is an important tool. Moreover, continued preoccupation with their own distress cannot but hinder peoples ability to be reconciled with others. The actualpsychological impact of receiving reparation can differ greatly between people. For some victimsreparation may mean the end of a personal healing process; for others it may be just the start of it.Reparation gives victims a role in the transitional justice process. Theoretically, a political transitioncould limit itself to legal and institutional reforms (of the army, the judiciary, the constitution and soon) and to sanctioning perpetrators, leaving the victimsout of the picture; but victims are likely to be better inteThe responsibility of a successorgrated into the transitional process if a reparation comregime or government for abusescommitted by the previous regimeponent is included. As a consequence, the confrontationis beyond any doubt.between victims and perpetrators and the issue of reconciliation become much more immediately relevant. TheGuatemalan Commission for Historical Clarification (Comisin para el Esclarecimiento Histrico,CEH), for instance, recommended in particular that collective (as opposed to individual) reparationmeasures be implemented in such a way as to facilitate reconciliation between victims and perpetrators, without stigmatizing either.Reparation, in the context of political transition, acts as a bridge between the past and the future. Itcombines the backward-looking objective of compensating victims with the forward-looking objectives of political reform. Thus, it also helps the new state in reconciling itself with its past.In some cases, reparation can function as a compromise. In some post-conflict societies, systematiccriminal prosecution of all those involved in the past oppression may threaten political stabilityand undermine democratic consolidation. On the other hand, requests by members of the previousregime that the past be simply forgotten are equally unacceptable. Reparation, which necessarilyincludes a form of sanctioning and honouring of victims rights, is therefore in itself a useful instrument of compromise. This is all the more true in those cases where an amnesty law denies victims theright to institute civil claims against perpetrators: a state reparation programme may counter, to someextent, the effects of the amnesty legislation.9.4 Sources of ReparationClaims for reparation are most often based on two different types of source: Fundamental feelings that justice needs to be done and that harm needs to be undone may providea strong moral basis. International (human rights) law and national legislation may provide a solid legal basis.In many cases the two will be mutually reinforcing.
Disappearances, the Human Rights Committee and the Committee Against Torture. Although theirfindings and recommendations are not binding, the work of these mechanisms can usefully inspirepolicy makers, as well as victims, their relatives and their representatives, in their attempts to obtainreparation from the responsible state authorities.At the regional level, international norms and mechanisms have been established by the Organizationof American States (OAS), the Council of Europe and the Organization of African Unity (OAU, nowthe African Union). The jurisprudence of these mechanisms can be found on the websites listed inthe Annex to this Handbook.The above deals with state responsibility for reparation. As far as the responsibility of individualsis concerned, there is no international mechanism for bringing an international civil action againstan individual perpetrator. The two ad hoc international criminal tribunals for the former Yugoslavia(the ICTY) and for Rwanda (the ICTR) do not allow victimsto participate in the criminal trials as civil claimants. While theThere is no international mechstatutes and rules of procedure and evidence of both tribunalsanism for bringing an international civil action against an indido contain some provisions on reparation, in practice thesevidual perpetrator.have yielded little or no result so far. More importantly, the1998 Rome Statute on the establishment of a permanentInternational Criminal Court (ICC), which entered into force on 1 July 2002, deals more extensivelywith reparation. It provides for the establishment of a Trust Fund for the benefit of victims whichcould fill an important gap, although the ICCs actual role remains uncertain.The most recent, still ongoing effort to bring together various reparation rights and components isthe draft UN Basic Principles and Guidelines on the Right to Reparation for Victims of Violations ofHuman Rights and International Humanitarian Law by special rapporteurs van Boven and Bassiouni.Although a number of important issues remain to be resolved, such as the distinction between violations and gross violations, they are nevertheless already being used as an authoritative source ofinspiration, including by the ICCs Preparatory Commission and some national legislators.Reparation under National LawIt is important to conclude that international norms and mechanisms primarily deal with the responsibility of the state for violations and with the states obligation to provide redress to victims.Furthermore, most of the international mechanisms cannot themselves issue binding reparationjudgements. These conventions primarily oblige states to adopt and implement national legislation.This legislation will necessarily deal with, inter alia, the criminal prosecution of suspected perpetrators, the right to compensation for victims and so on.It is, for obvious reasons, not possible to provide an overview of all national norms and mechanisms. However, generally speaking, at the national level a distinction can be made between judicialand non-judicial reparation mechanisms.The judicial mechanisms can again be subdivided into (a) reparation proceedings which are closelyassociated with the criminal prosecution of individual perpetrators, with victims participating andseeking reparation as civil claimants (constitution de partie civile), and (b) tort proceedings which mayallow victims to claim compensation independently of the criminal prosecution of the perpetrator.Examples of the latter type are the US Alien Tort Claims Act and Torture Victims Protection Act.A wide variety of mechanisms are non-judicial, that is, they do not operate in the context of formalcourt proceedings. They range from state-administered compensation funds for victims of violentcrime and abuse of power, to mediation programmes which involve both offender and victim, to150
traditional means of conflict resolution based on a restorative justice approach. (See chapter 7 onrestorative justice.)These judicial and non-judicial mechanisms and programmes may be specifically designed to dealwith reparation for victims of particular forms of human rights violations (for instance, a fund forthe rehabilitation of victims of torture) or may deal with victims of crime in general. The 1985UN Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power callsupon states to guarantee certain rights to victims of criminal offences and of human rights violationsrelating to access to justice and fair treatment, restitution, compensation and (material, medical, psychological and social) assistance. The UN Commission on Crime Prevention and Criminal Justice hasdrafted a Guide for Policymakers on the Implementation of the 1985 UN Declaration and a Handbookon Justice for Victims on the Use and Application of the 1985 UN Declaration.9.5 How to Develop and Run a Reparation ProgrammeDecisions on the establishment of a reparation programme will depend on a set of factors whichalso shape the overall political transition. These include the nature and the popular support of theprevious regime, the type of transition, the democratic or other nature of the new political regime,and the extent of support from the international community. It is therefore extremely difficult toprescribe a particular model. Nevertheless, this section tries to identify the dilemmas and constraintslikely to be faced by all governments and civil society groups seeking to create a reparations programme.As far as possible, recommendations are formulated to help in responding to these difficulties.However, they should be considered as suggestions which may need to be adapted to the particularcircumstances, not as guaranteed solutions.9.5.1 A Major Strategic Choice: Taking the Best from both Judicial and Non-JudicialApproachesIn the context of political transitions, reparation cannot be provided effectively to a large numberof victims through an exclusively judicial approach. Access to justice and legal remedies is obviouslyextremely important for victims seeking redress for the harm they have suffered. The developmentsin international law and in many national legal systems mentioned above, which strengthen victimsrights, are therefore encouraging for victims. However, thereare certain restrictions associated with approaching reparationsIn the context of political transolely as the outcome of a successful judicial exercise. A victimsitions, reparation cannot bemay lack legal skills, solid evidence or financial resources, andprovided effectively to a largenumber of victims through anamnesty legislation may have been passed. All these factors canexclusively judicial approach.make access to judicial mechanisms extremely difficult for thevictim, if not impossible, but they should not deprive him orher of the exercise of his or her right to reparation and should not discharge the state of its obligationto provide redress. At the same time, if a non-judicial approach to reparation is chosen, policy makersneed to try to incorporate the strengths of a judicial approach. For instance, the value of a judicialprecedent in determining standards of compensation or in recognizing certain categories of people asvictims should be reflected in the reparation programme.This section presents some of the advantages and risks of a judicial approach. These may apply toboth criminal and civil proceedings, although some inherent distinctions between the two need tobe borne in mind.151
8. Irrespective of the particular domestic legislation, access to a judicial process may not be morethan a theoretical option for the poorest victims: they will often lack the information, legal assistanceor financial means needed to initiate civil claims against perpetrators, to travel to a court or toparticipate as civil claimants in criminal proceedings. This is all the more likely in countries whereinternational or national support groups have limited capacity. A relevant question in this contextrelates to the admissibility of class actions under the relevant national legislation.MeritsDespite these limitations, judicial approaches set important precedents, both at a symbolic and at apractical level.1. A judicial decision sends a very strong signal that a certain practice will not be tolerated and thatvictims of that practice are entitled to redress. This in itself may provide victims with a certain degreeof satisfaction, despite the fact that criminal trials are usually more focused on perpetrators than onvictims. The judicial decision also confirms the validity and the binding nature of the norms thatwere violated.2. At a practical level, a successful legal claim may be the most convincing argument for a governmentto acknowledge the suffering of victims and to adopt reparation legislation and establish other, nonjudicial reparation mechanisms. For instance, the decision by the Japanese Government to seriouslyconsider the issue of reparation for around 20,000 so-called comfort women, abused as sex slaves duringWorld War II, was prompted by the legal action undertaken by one individual victim. It should benoted that, in cases where domestic legal action is not an option, proceedings before an internationalhuman rights body or before national judiciaries in other states may have a similar effect.3. Even if non-judicial mechanisms are created, the judicial enforcement of the right to reparationshould preferably remain an option for those victims who are not satisfied with the non-judicialapproach. Reparation should indeed remain an individual, justiciable right, whatever supplementaryreparation policies are developed.Illustrations of a Non-Judicial ApproachSeveral bodies have been established to deal with reparation for past abuses at the international andat the national level. This section will briefly present three different types of non-judicial bodies,looking at specific examples: the United Nations Compensation Commission (UNCC); truth commissions; and national administrative bodies.The UN Compensation CommissionThe UNCC was created in 1991 as a subsidiary organ of the UN Security Council. Its mandate isto process claims and pay compensation for losses and damages suffered as a direct result of Iraqsunlawful invasion and occupation of Kuwait in August 1990. The funds are raised through a tax onIraqi oil exports. The UNCCs approach to reparation is strictly limited to compensation.Claims which are broader that just damage resulting from gross human rights violations mustbe submitted through standard forms to the UNCC Secretariat and have been classified into sixcategories. Type A claims concern individuals who were forced to leave Iraq or Kuwait as a result of153
the invasion; type B claims concern serious personal injury or death; type C claims concern othercases of personal injury, including mental pain and anguish, and losses of property or other interests;type D claims concern losses over USD 100,000 and are paid after A, B and C claims have beencompensated; type E covers corporate claims; and type F concerns claims by governments and international organizations. As of July 2001, most of the 2.6 million claims filed with the commissionhad been processed. The compensation awarded against the claims processed so far amounts to USD35.4 billion; the 10,000 claims yet to be resolved represent requests for over USD 200 billion incompensation.The UNCC sets an important precedent which shows that, if only there is sufficient political interest, it is possible to process a large number of individual compensation claims, even at the highestinternational level: the normative framework has been created, a secretariat established and a fundingmechanism found. The UNCC experience offers inspiration for the processing of claims on a verylarge scale - the use of standard submission procedures, classification into different categories, the useof fixed sums for certain types of injury and the use of compensation ceilings. Such procedures maybe of use for the management of other reparation mechanisms.However, the UNCC has also highlighted the way in which the objectives of reparation and reconciliation can remain completely disconnected. In the UNCC case, reparation has been reduced to atechnical, financial operation that is exclusively backward-looking. Moreover, it operates one-sidedly,deliberately excluding the suffering of Iraqi nationals as a result of the military operations of theirown government or of the US Government and its allies. Finally, the financing mechanism of theUNCC raises serious questions given that it is intimately linked to a wider sanctions regime whichhas been denounced for its impact on human rights.Truth CommissionsThe work of a truth commission, when properly done, automatically leads to some form of reparation, as understood in the broader sense defined above. (Their work is the subject of chapter 8.)Allowing victims to speak out and be heard, investigating and establishing the truth about violations,public acknowledgements (possibly combined with apologies or expressions of regret), memorialsto victims and recommendations to reform public institutions - all are important aspects of a fullreparation package. Other reparation needs of victims are at least partly dependent on some formof payment: analysis of a representative sample of statements before the South African Truth andReconciliation Commission (TRC) revealed that deponents prime expectation of the TRC was financial assistance. The second most common request was for investigation of violations.The Reparation and Rehabilitation Committee (RRC) of the TRC recommended a reparation andrehabilitation policy consisting of five components: (a) urgent interim reparation payments for peoplein urgent need, to enable them to access services and facilities; (b) individual reparation grants foreach victim of a gross human rights violation paid over a period of six years; (c) symbolic, legal andadministrative reparation measures; (d) community rehabilitation programmes; and (e) institutionalreforms. The TRC Act provided for the establishment of a Presidents Fund to administer the individual reparation grant system. Contributions to the fund would come from the national budget,international and local donations, and interest earned on the fund. The TRC report recommendedthat each of the approximately 22,000 victims registered should receive between ZAR 17,000 andZAR 23,000 (ca USD 1,6782,270), with the total budget amounting to some ZAR 2.8 billion(USD 0.28 billion) over six years.The TRC sets an important example through its holistic approach to reparation as both a back154
ward- and a forward-looking concept, which goes beyond financial compensation and is thoroughlyembedded in a wider search for truth, justice and reconciliation. Reparation should indeed be linkedto truth and justice: if compensation is used merely to buythe victims silence in the absence of truth, their psychologicalReparation should indeed belinked to truth and justice.rehabilitation is likely to be impeded. On the other hand, theRRCs power was limited to formulating recommendations: itdid not have the same decision-making powers as the Human Rights Violations Committee andthe Amnesty Committee. Three years after the publication of the TRCs report, the South AfricanGovernment is coming in for strong criticism both for failing to pay out reparation grants and foradding insult to injury by paying no more than token amounts.National Administrative Bodies (Trust Funds, Compensation Commissions)Several countries have enacted legislation and established reparation funds or commissions to compensate victims of human rights abuses committed under a previous regime. The creation of suchadministrative bodies may be the direct or indirect result of a truth commission, or they may beestablished independently. Some examples follow:1. Brazil in 1995 established by law a Reparations Commission to compensate the relatives of 135members of an armed rebel movement who disappeared under Brazils military rule.2. A 1991 Hungarian law established a National Damage Claims Settlement Office to remedythe harm unlawfully caused by the state seizure of property through the payment of lump-sumcompensations.3. Prompted in part by the friendly settlement procedure of the Inter-American Commission onHuman Rights, Argentina in 1991 adopted reparation legislation to compensate victims of specifichuman rights violations, focusing especially on disappearances. The government Human RightsOffice was the implementing body.4. In 1992, the Chilean legislature established the National Corporation for Reparation andRehabilitation which was mandated to implement the Chilean Truth Commissions recommendations on reparations.5. In 1997, in Australia, the report of the National Inquiry into the Separation of Aboriginal andTorres Strait Islander Children from their Families recommended the payment of compensation topeople affected by forcible removal through a National Compensation Fund.9.5.2 Other Strategic IssuesThis section presents some of the strategic choices that arise within judicial and non-judicial approaches, as well as a number of dilemmas and constraints that governments and/or civil society groupsmay face when developing, advocating and/or running a reparation programme. As far as possible,recommendations are formulated to assist in responding to these difficulties. The strategic issues aredivided into five categories on the basis of the following questions: Who will qualify as a beneficiary of the reparation measures? Which reparation measures will be provided for?155
It should be noted at the outset that, in many countries, reparation has been and continues to bethe subject of a long process of campaigning, with the actual end result remaining uncertain. Thisprocess towards a negotiated justice, when it is sufficiently inclusive and owned by the victims,may well be important in itself. It allows people to become actively involved, to have their experiencesrecognized by and shared with others, and to regain a sense of dignity. This process is valuable.However, this should not be used as an excuse by the state to forget about the end result.The Beneficiaries of ReparationIf an integrated approach is adopted to deal with issues of justice, reparation and reconciliation,the range of potential beneficiaries of a reparation programme must logically be defined taking intoaccount the notion of victim that is used under other justice and reconciliation mechanisms. It islikely that the criminal justice mechanism will deal only with a limited range of violations. Truthcommissions and mediation programmes may deal with other consequences of past oppression. Anyreparation programme should take into account how victims are to be approached under all theinstruments being used in the transition and then decide how to select them. Two examples mayclarify this dilemma.First, reparation should not be seen as a reward for testifying in a criminal case or before a truthcommission, so the link between testifying and reparation must be correctly conceived.Second, victims of practices which have not been included in criminal justice or truth commissionmandates or in mediation programmes may have valid and unmet reparation needs. To exclude themfrom a reparation programme may be perceived as unjust and create feelings of resentment. Theexample of Chilean torture victims, who are not covered by the mandate of the Corporation forReparation and Reconciliation, is a clear illustration of thisdilemma.It is extremely important to provideReparation programmes should avoid strengthening existadequate information and avoiding or creating new discriminatory practices. Reparationcreating unrealistic expectations.should not be perceived as a form of revenge in the handsof the new regime. Victims of torture, whether at the handof agents of the past regime or of former rebels, should in principle be given access to the samereparation regime. Politically biased or one-sided reparation will make reconciliation more difficultand should be avoided at all costs.Similarly, attention should be paid to instances of victim competition. Some categories of victimmay, as a result of experience, good organization or political affiliation, be able to make themselvesheard better than others. Policy makers must be aware of the strength of, and competition between,victim support groups and design their programmes accordingly.The above issues also have an impact on victim registration. The registration of victims as beneficiaries of reparation can, in part, build on the work of a truth commission or the criminal justicesystem, but should ideally go beyond that threshold. In any case, it should be depoliticized and nondiscriminatory. Further, the threshold for reparation for all victims who meet the criteria shouldbe sufficiently low. For example, victims living in remote areas should not be excluded in practicebecause they are geographically isolated.156
Should victims be categorized in terms of their suffering, with priority given to those who are judgedto have suffered the most? This raises the question whether it is possible to quantify and compare suffering. Should reparation, rather, be prioritized in accordance with victims current needs? Or should allvictims who meet the criteria and who are eligible as beneficiaries receive equal compensation?In the case of wrongful death or disappearance, a range of indirect victims (see chapter 4) may claimreparation. The reparation programme should consider carefully who to accept as indirect victims only spouses, children and parents, or other relatives and dependants as well? Furthermore, will theseindirect victims receive compensation for the suffering of the direct victim only, or also for their ownmental suffering and financial damage as a result of the wrongful death or disappearance of theirrelative? Victim support groups may find arguments in international human rights law which clearlyaffirm a states obligation to repair an indirect victims own suffering as well.Whichever categories of victim are in the end eligible for reparation, it is extremely important toprovide adequate information and avoid creating unrealistic expectations. This applies both to therange of reparation measures and amounts of compensation and to the role of the various transitionalmechanisms: victims may well testify before a court or a truth commission, but it should be madeabsolutely clear what the powers of the court or the commission, if any, might be in awarding compensation.The Range of Reparation MeasuresCrucial decisions need to be taken on the nature of the reparation and as to whether to offer cashor services to those who suffered or a combination. The South African RRC identified a number ofdisadvantages of a services package - a package of access to health, housing, education and otherbasic services. These included higher administrative and logistical costs, less flexibility to adapt tovictims changing needs, the potential for tensions within a community as a result of a select groupof individuals having preferential access to services, and (less predictably) budget implications. Thecommittee therefore chose to give the recipients some freedom of choice and recommended financialreparations at a level which would enable reasonable access to essential basic services, thus generatingthe opportunity for people to achieve a dignified standard of living within the particular socioeconomic context.The determining argument for the RRC was the expectations of the victims themselves. It is important to design a reparation package consisting of a considered balance of services and financial reparation. The package should consider all the practical and financial factors affecting victims ability toaccess basic services as well as the preferences expressed by victims and their support groups or otherrepresentatives.This approach obviously presupposes that basic services are available to all concerned.Careful consideration should be given to the different kinds of compensatory damages to be included - nominal, pecuniary, moral and/or punitive (see section 9.2.1).The financial element of a compensation package is quite important. At the very least, addinginsult to injury should be avoided. It may not be realistic to aim to provide financial compensationthat is proportionate to the suffering of each individual victim, but any payment made should beenough at least to make some difference. Pecuniary awards may be either determined on a strictlyindividual basis - i.e., in accordance with the actual loss and suffering of an individual victim - ordetermined on the basis of fixed compensation schemes, with statutory or administrative regulationslaying down certain amounts of damages for each type of injury, for example, one day of unlawfulimprisonment, the loss of a thumb, or one day in hospital.157
As noted above, full individual reparation to all victims after mass victimization will be neithersufficient (because of the structural damage) nor possible (because of the number of people who werevictimized). Collective measures will be necessary to deal with past abuses adequately. In order to beeffective, the threshold for collective reparation measures will necessarily be low, which in itself willmake them more attractive. Thus collective measures have the advantage of reaching a larger numberof victims. There is also less risk of an artificial and arbitrary limitation on the range of beneficiaries.Furthermore, they seem better suited to offer a remedy for a past which has, in actual fact or in peoples perceptions, collectively victimized certain groups, beyond the violations suffered by individualmembers of the group.The beneficiaries of a collective reparations programme should ideally have ownership over itsdesign. The Guatemalan CEH, for instance, highlighted the need for the Mayan population to beinvolved in defining the priorities of the collective reparation process.This said, the extent to which collective measures can replace or supplement individual reparationmeasures should be carefully considered. As far as possible, individual reparation rights should berespected and existing judicial mechanisms should remain available to deal with individual reparationclaims. In many cases, as illustrated by the South Africansituation, the threshold (particularly in financial terms) toIt is important to maintain someaccess these mechanisms will in any case be excessively highlink between the material refor the average victim. Ideally, some combination andparation awarded to victims andacknowledgement of wrongdoingintegration of the individual and the collective dimensionsand responsibility.should be achieved. Providing better and more easily accessible health services to previously oppressed minorities inremote areas, for instance, is likely to be a useful collective reparation measure. However, for this to bepsychologically restorative at the individual level, it may need to be personalized: for those membersof the target group who have been tortured, for instance, specific personalized and free counsellingservices may also be organized.Generally, it is important to maintain some link between the material reparation awarded to victims and acknowledgement of wrongdoing and responsibility. Japans financial compensation for thecomfort women through the establishment of the Asian Womens Fund was criticized for being awelfare-oriented system based on gender and development needs rather than on acceptance of responsibility for wrongdoing and an obligation to provide reparation. The risk of this kind of response iscertainly greater where exclusively collective reparation measures are used.International legal scholars generally award primacy to restitution as a preferred form of reparation.This theoretical debate is not without practical repercussions: primacy should not rule out a certainflexibility when designing reparation schemes under transitional justice mechanisms. Ideally, evenwhen full restitution remains materially possible, victims may wish to opt for financial compensation.On the other hand, reparation programmes should not allow the responsible state to renounce someof its obligations at its own discretion: for instance, the payment of compensatory damages shouldnot be used as a substitute for returning citizenship to members of a formerly oppressed minority.Victims expectations and perceptions of reparation may vary widely. The variables which affecttheir view of reparation include their cultural background, their post-conflict socio-economic position, whether they are in exile or not, gender, and the passage of time since the violations suffered.It is therefore highly unlikely that it will be possible to meet all expectations of all victims on anindividual basis. Generally, it seems advisable to have a balanced package of individual and collective,pecuniary and non-pecuniary, and commemorative and reformative reparation measures.158
(ZANU-PF) party was liable to pay compensation to various victims of human rights violations bymembers of this party. The Marcos litigation in the USA is another example. Both cases presentinteresting illustrations not only of innovative procedures being used to deal with large numbers ofclaims in a judicial context but also of the role which foreign assets and governments can play infinancing part of a reparation programme.2. It is highly unlikely that this source of financing will be enough. A further contribution maycome from a reparations tax, although this will be highly unpopular if it is designed in such away as to cause victims to suffer a second time. Careful thought should be given to designing a taxscheme which targets primarily the least vulnerable (while, obviously, at the same time not financiallychasing them out of the country).3. National and international law deals with the responsibility of perpetrators. A legal approach payslittle or no attention to the different types and hierarchies of guilt. Under national or internationallaw primary perpetrators carry legal criminal guilt and legal civil responsibility. In the case of indirectoffenders, guilt is of a political and/or moral nature (see chapter 5). Their offence is caused by thedirect or indirect advantages they enjoyed during the pre-transitional period (as beneficiaries),by their inaction when witnessing human rights violations (as bystanders and onlookers) or byunintentional harmful action. When designing a reparations process, the inclusion of indirect offenders among those who bear responsibility should be one of the core issues considered.Financially speaking, some of the most interesting indirect offenders are companies which havebenefited from the abusive policies of the past. Careful attention should be given to the questionwhether corporate conduct under the former regime qualifies as corporate complicity in past abusesand therefore leads to legal responsibility on the part of the company. Another option is to advocateindirect offenders financial involvement through voluntary contribution schemes.4. An additional problem - that of intergenerational justice - arises when a period of time passesbefore a reparations programme is established. Can successor generations of perpetrators and beneficiaries be expected to pay for the wrongs perpetrated by regimes long gone to successor generations ofvictims who may (or may not) suffer from the continuing effects of the past injustices?Legally speaking, there is no such thing as succeeding generations personal responsibility. However,the continuing moral and political duty of the state to provide redress to the victims or their succeeding generations may lead to the adoption of a fiscal policy which obliges them to pay. In suchcases, their duty to contribute might be more easily conceived and presented as primarily linked totheir citizenship (and their general status as taxpayers) rather than based on some sort of inheritedperpetratorship. It is also likely that, in this context, reparation will take a collective form as socialredistribution policies or affirmative action-type programmes.5. To ease some of the immediate budget constraints, a system of compensatory payments throughyearly or other periodic instalments, possibly pension plans, might be an option, instead of immediatepayments of the full amount.6. One delicate question relates to contributions from foreign governments. Although in some casesthe political and even legal responsibility of foreign states may be unquestionable, it may be highlyproblematic for a newly democratic state to claim compensation from other states through legal160
proceedings. This is notably the case for Rwanda, which could, theoretically and probably successfully, initiate reparation claims against the UN, Belgium and possibly other states. For primarilydiplomatic reasons, no such initiative has been taken so far.The contribution of foreign states can also, obviously, beThe inclusion of indirect offendother than merely financial: any truth-telling exercise mayers among those who bearrequire information to be provided by third countries or formerresponsibility should be one ofallies of the past regime.the core issues considered.LogisticsEven in the case of large-scale victimization, the decision to recognize a victims right to reparationand to award reparation can to some extent be carried through by the regular transitional justicemechanism, be it a classical criminal tribunal or a truth commission. However, the actual implementation of a reparation programme will be better done by a separate reparation body. Some exampleshave been mentioned above. The operational requirements in terms of logistics alone are completelydifferent from those required of institutions dealing with truth-telling or criminal prosecution. Also,the other transitional justice mechanisms may necessarily be of limited duration - the end of theirterm symbolizing a return to normality - whereas a reparation body may require a much longerperiod of activity.The different components of a reparation programme may require partly similar, but also largelydifferent, approaches in terms of organization, personnel and skills. Some of the issues that may ariseinclude the following: Listing the victims who meet the criteria of beneficiaries of the reparation programme is generallya first logistical challenge. Part of this work may be based on the activities of the courts, a truthcommission or other transitional justice mechanisms, but the reparation programme should preferably also be open to those who do not wish to participate in such mechanisms. Listing the victimspresupposes nationwide information campaigns and easily accessible registration mechanisms. Statement takers need to be recruited and trained in registering victims reparation needs and inexplaining the limitations of the reparation programme. Awarding compensation requires a preliminary assessment of damages or, if lump-sum amounts areto be used, at least a verification that the damage has been suffered as a result of the past oppression.This requires effective corroboration of victim statements, which is a very time-consuming exercise.Otherwise false statements are likely to jeopardize the whole operation. Sufficient time and personnel are needed to undertake the administrative processing of claims. Togive just one example, the award of reparation in response to multiple claims by several indirectvictims for the suffering of the same person should be avoided. Appropriate payments procedures need to be developed, in particular for people who do not havebank accounts.9.6 Concluding RemarksReparation is an essential item on any post-conflict agenda: it should be solidly integrated into a widerapproach to truth, justice and reconciliation. This chapter has shown how reparation has recentlybeen shaped and redefined in the light of the legitimate expectations of victims of grave abuses. Theirright to reparation is finding an increasingly solid basis in international human rights law. However,bridging the gap between theory and practice remains an enormous challenge, particularly in the caseof large-scale victimization. Several strategic choices need to be made and a whole range of dilemmas161
and constraints need to be dealt with, at a time when few examples of best practice are available.As a general rule, when designing and implementing a reparation programme, great attentionshould be paid to inclusiveness, appropriateness and effectiveness as guiding principles. Inclusivenessshould inspire the accurate definition, identificationand involvement of all relevant players in the repWhen designing and implementing aarations process, victims as well as perpetrators,reparation programme, great attentionincluding, ideally, beneficiaries of past abuses. Inshould be paid to inclusiveness, appropriateness and effectiveness as guidingso doing, ownership and links between reparationprinciples.and responsibility can be achieved. Appropriatenessshould guide decisions on the range of reparationmeasures and assist in striking the right balance between financial and immaterial measures as wellas between reparation and other post-conflict challenges. Effectiveness goes hand in hand with thetreatment of reparation as an individual legal right while at the same time seeking to overcome theimportant limitations of classical judicial enforcement methods. Effectiveness as a guiding principleshould guarantee access and delivery.
Other ReferencesBrooks, Roy. When Sorry Isnt Enough: The Controversyover Apologies and Reparations for Human Injustice.New York: New York University Press, 1999.Torpey, John. Making Whole What Has BeenSmashed: Reflections on Reparations. Journal ofModern History 73(2) June 2001:333358.
Internet SourcesOrganization of American States, http://www.oas.org162
In the chapters on healing, justice, truth and reparation, brief references were made to the interventions of third parties, such as UN agencies and foreign NGOs, in these areas. This chapter nowtakes a closer look at the potential role and the limits of outside attempts to foster lasting reconciliation. Two questions will be raised here: What should be the canon of international engagement? In what reconciliation areas can third party support be useful?10.1 Rules of EngagementReconciliation in post-conflict societies cannot be imported from the outside. Foreign actors must seetheir role as one of support and facilitation of domestic policies. Several, more practical, imperativesfollow from this critical engagement perspective.10.1.1 A Cautious and Restrained ApproachCaution from the side of the international communityimplies: awareness of the specific political, cultural and historic forcesin a transitional society; accepting that the process must be locally owned; and being sensitive to such issues as appropriate timing and tempo.
Reconciliation in post-conflictsocieties cannot be importedfrom the outside.
the perpetrators can reconcile themselves with one another. From this it follows that the internationalcommunity must facilitate instead of impose, empower the people instead of picking the fruits ofsorrow, support local initiatives instead of drowning the post-conflict society in a sea of foreignprojects (as happened in Kosovo), and choose capacity building above importing experts.Sometimes societies coming out of a violent and long-lasting conflict will be so weak that externalsupport must be much more extensive and far-reaching. But even then so-called mixed projects,where domestic and foreign agencies and NGOs jointly take responsibility (as in the case of theGuatemalan truth commission), are preferable.A Cautious Time FrameInternational peacemakers and facilitators tend to advocate a rushed approach to reconciliation. Thisis often a reflection of their own short-term interests and/or based on the unfounded conviction thatthe success of a transition depends on a rapid move towardsnational unity. At several points in this Handbook it is arguedInternational peacemakers andthat such a perspective is more often than not counterproducfacilitators tend to advocate ative. Reconciliation as a process is a difficult, long and unprerushed approach to reconciliadictable voyage, involving various steps and stages. Its timetion. Such a perspective is moreoften than not counterproducscale must be measured not in months or years but in generative.tions. Where unhurried reconciliation activities may seem atfirst glance to be a hindrance to establishing a working democracy, in fact they are a necessary requirement for the survival of that democracy.An adequate time frame also involves foreign actors, governmental and non-governmental, ensuring a long-term engagement, with a continuous evaluation of past international projects and interventions.10.1.2 Protecting the Prospects of Enduring ReconciliationInternational agencies (particularly in the form of the World Bank and the International MonetaryFund) are inclined to suggest - even force - transitional societies to give priority to political andeconomic reforms at the expense of reconciliation programmes. It remains essential that care be takennot to damage the prospects of long-term reconciliation by establishing inappropriate political andeconomic structures.10.2 Areas Where International Support Can Be UsefulJustice is the domain where the international community is directly involved in processes that havea reconciliation potential. This is firmly demonstrated by the ad hoc tribunals in The Hague andArusha, the International Criminal Court (ICC), the UN-initiated tribunals in Cambodia and SierraLeone, and the implementation of the principle of universal jurisdiction. Truth-telling is another fieldwhere foreign agencies and NGOs are prominent. Examples are the UN-sponsored commissions inEl Salvador, Guatemala and East Timor.Other forms of support aim at: generating opportunities; and/or creating favourable conditions for reconciliation processes.10.2.1 Generating OpportunitiesThe amount of available information on healing, truth-seeking, justice and reparation programmes164
has grown considerably. Information networks (for example, the New York-based International Centerfor Transitional Justice and the Cape Town-based Institute for Justice and Reconciliation) have beencreated. They offer professional expertise and organize regional workshops where local decision makers can exchange information and advice. Several internationalNGOs sustain reconciliation activities in post-conflict counLack of coordination betweentries. Avocats Sans Frontires, for example, produced the mandonor countries and NGOs hasoften curtailed the efficacy ofual that has been used to train the gacaca judges in Rwanda.international support.Most societies emerging from brutal conflict are totallyimpoverished. They lack the material and technical resourcesto set up healing projects, truth commissions and reparation programmes. This is where outsidesupport is badly needed and extremely useful. It may take the form of: assisting truth commissions with forensic experts to identify victims in mass graves or supportingthe publication (in various indigenous languages) of the commissions reports; creating or financially backing funds for restitution to the victims; providing for witness protection; and assisting claimants in civil suits against torturers, as has been done by Redress, a UK-based NGO.Lack of coordination and networking between donor countries and NGOs has, however, often curtailed the efficacy of international support. The need for coordination is clearly visible in the contextof Kosovo today, where more than 300 international agencies have been registered.Another problem is the one-sided preoccupation of the international community with the materialconsequences of a violent conflict. This reflects the priority it gives to easing the effects of civil war andoppression. Much less attention goes to targeting the roots of human rights violations.10.2.2 Creating Favourable ConditionsThe international community is often a party in the processes that lead to the end of a civil war. Ithas, consequently, the opportunity to negotiate reconciliation programmes into peace agreements. Italso may help in the drafting of suitable domestic legislation and provide protection for those, suchas the members of a truth commission, who will be locally responsible for the implementation of suchprogrammes and legislation. Outside actors can put pressure on those groups in a post-conflict societythat are ready to renew a civil war or stage a coup. In cases where trials are a crucial step towardsreconciliation foreign states may facilitate the extradition of notorious murderers and torturers.Transnational NGOs and official agencies have an important role to play in drafting internationalguidelines that may strengthen local political and civil society leaders. Examples are the UN guidelines on the fight against impunity, the right to truth and the right to restitution for victims of grosshuman rights violations.International reporting and monitoring mechanisms are most useful instruments. Examples includethe Organization of African States International Panel of Eminent Personalities to Investigate the1994 Genocide in Rwanda and the Surrounding Events, and the various war crimes commissionsand bodies established by the UN to look into violations committed in places such as the formerYugoslavia, Rwanda and East Timor. Another illustration is the work of UN Committee againstTorture, which may be helpful for civil society groups when designing proposals or lobbying for reparation measures. Human Rights Watch published testimonies on atrocities in Bosnia. The GenocideStudies Program at the University of Yale, USA, compiled databases on the Cambodian genocide.In countries where criminal proceedings are partly based on unwritten evidence outside agencies165
may support the computerized storage of evidence. The US Agency for International Development(USAID) has offered such assistance to the Ethiopian Special Prosecutors Office in its preparation ofthe trials of pre-1991 human rights violations.It is, however, clear that third-party states must be ready to facilitate the transfer of significantinformation stored in their government and secret service archives. The international truth commission of El Salvador was refused access to 12,000 very relevant documents which the US Governmenthad collected on the civil war in El Salvador. The Guatemalan truth commission, on the other hand,successfully requested the declassification of thousands of US documents - with the help of theNational Security Archive, a US-based NGO.
Conclusionb av i d b loom f i e l d
The material in this Handbook represents most of the accumulated wisdom so far on reconciliation. Reconciliation is a relatively new addition to the post-conflict scene, and thus there are stilllarge gaps in our knowledge and serious imperfections in our practice. But contained in thesepages are the expertise and experience in the field as it currently stands. Much of that valuableinformation boils down to a few points, simply expressed but still immensely challenging to putinto practice. Here, we focus on just three.First, there is no one road to reconciliation. There is no right answer that has been worked out, noperfect model from South Africa or Peru or Rwanda or Cambodia that others can simply import andimitate. Nor will any single tool solve the whole problem: neither truth-telling alone, nor healing,nor justice, nor forgiveness. In every new context, a new and multi-stranded individual process mustbe designed. But this is not a handicap by any means. On the contrary, it should give those facedwith the challenge of designing their own process the confidence to realize that they are the expertson their own situation, to trust their own judgement about what will work and what will not in theircontext, and to use, adapt, alter or replace ideas from elsewhere.Second, it is not sensible to judge an entire reconciliation process as a success or a failure. Eachprocess consists of many small successes and failures. The work is not easy, and the challenges of theoverall process can occasionally seem overwhelming. But it is important to see the progress and successes, small and large, where and when they appear. Every step forward is a success - indeed, as onepractitioner commented, every silence that is broken is a victory for reconciliation. A reconciliationprocess consists of a multitude of initiatives, steps and stages, where progress is an accumulationof small steps. Success happens at the individual level, as well as the collective level. Sensitivelyand appropriately designed, reconciliation will bring these small successes. And the small victoriesaccumulate to form the bigger ones.Third, reconciliation is necessarily a long-term process. It is pointless to plan to do reconciliationfirst and then move on to justice, or economic reform, or constitutional reform. But reconciliation isalso a pressing need, and one which does not ease simply with time. Quite the reverse: the collectiveand individual hurt, pain, frustration and anger that are the legacy of violence will only grow, notdiminish, if left unaddressed. So it is equally counterproductive to leave reconciliation until afterthose other priorities have been achieved.How then can these opposing pressures be resolved? Quite simply, it is necessary to view reconciliation as a part of peace-building and democratization, just as integral to the post-conflict solutionas constitutional reform or any other key element. Reconciliation must be implemented in parallelwith and as a constitutive part of those other activities of reform or reconstruction. This is preciselybecause reconciliation underpins all those other strands of rebuilding - the rebuilding of relationshipsunderpins, and must run concurrently with, rebuilding all the other structures and processes. It mustbe done not before, not after, but at the same time.This Handbook points to some methods for doing this. The crucial actors (victims and offenders)must be understood. The crucial procedures (healing, justice, truth and reparation) must be undergone. And the habits and patterns of the past must be undone. Those are the crucial patterns of167
attitude and behaviour that produced and sustained the violence. If they remain unchanged, they willeventually produce the same outcome again.As the saying goes, those who ignore their history are condemned to repeat it. We must examineour past history, not only for its own sake and that of its victims, but in order to build a strategy - areconciliation process - that guarantees a secure future. However painful that history has been, it hasvital lessons for the future, and indeed it is the starting point for our journey into the future.This is not simply a moral argument about doing the right thing, even though reconciliation cancontain strong moral elements, such as justice, respect and equality. It is much more than that. Putbluntly, good democratic politics - even the best politics - only works when relationships betweenthe various actors are positive enough to permit basic trust, respect and cooperation. Bad relationships - those still built on distrust, suspicion, fear, accusation, even ignorance - will effectively andeventually destroy any political system based on respect for human rights and democratic structures.Reconciliation is the means to change relationships.A democracy is built on respect for the human rights of all concerned. Unreconciled people, stilldriven by fear or suspicion, do not afford each others human rights the same respect. If human rightsare not upheld widely and collectively, the basis for democracy is fatally flawed.The work of building democracy is never finished, never perfect. It has to be constantly tendedand mended, refined and re-tuned. So with reconciliation - the commitment must be for the longterm, for the widest and deepest possible process, and it must be seen as an integral part of, not someaddition to, overall reform and reconstruction.The good news is that it can be done. Never perfectly, perhaps, but often effectively: this is themessage from many of the examples we have examined in this book. Other examples show how it cango wrong, go backwards, even fail. But - and here we end where we began - the most conspicuousexamples are those where reconciliation was ignored or treated superficially: in every case, it has comeback to haunt the society. Only by building reconciliation in as a vital, equally important, piece of thejigsaw, along with economics, politics, justice and the other parts of the peace-building puzzle, can asociety truly move with confidence from a divided past to a shared future.
ContributorsDavid Bloomfield is Senior Executive for Democracy, Dialogue and Conflict Management withIDEA. Born in Belfast, he ran reconciliation projects in Northern Ireland in the 1980s, and has beena trainer in conflict resolution skills in Ireland and elsewhere around the world. With an MA in peacestudies and a PhD in conflict resolution, he has researched and taught at the universities of Harvard,Bradford and Ulster, and published three books on the Irish peace process.Noreen Callaghan holds a M. Phil. in International Peace Studies from Trinity College, Dublin. Shedevised, co-ordinates and teaches a Diploma in Reconciliation Practice at the National University ofIreland, Galways Community Education Centre. She teaches groupwork and reconciliation coursesat the PRONI Institute of Social Education and Leadership in Croatia and Bosnia. She is the authorof Building Peace: A Guide for Community Groups.
Mark Freeman currently works as a Senior Associate at the International Center for TransitionalJustice. He previously worked as a human rights officer at the UN Office of the High Commissionerfor Human Rights in New York, and as a commercial lawyer at a large private firm in Canada. Hehas participated in a wide range of human rights projects in Canada and internationally over the pastdecade, including as a consultant to the Office of former Vice President Hugo Cardenas in Bolivia.He has published a number of law journal articles on human rights and transitional justice, and hasforthcoming chapters in three books.Brandon Hamber was born in South Africa and is a clinical psychologist. He works in Belfastas an associate of the think-tank, Democratic Dialogue. He is an honorary fellow at the Schoolof Psychology at Queens University in Belfast. Formerly, he coordinated the Transition andReconciliation Unit at the Centre for the Study of Violence and Reconciliation, South Africa. Hehas published widely and has worked with various projects in different countries focusing on dealingwith the past in post-conflict societies.He edited the book Past Imperfect: Dealing with the Past inNorthern Ireland and Societies in Transition.Priscilla Hayner is a co-founder of the International Center for Transitional Justice and directs itswork on Sierra Leone, Peru, Ghana, and a number of other countries. An expert on truth commissions and transitional justice initiatives around the world, she has written widely on the subject ofofficial truth-seeking in political transitions. She is the author of Unspeakable Truths (Routledge,2001), which explores the work of over 20 truth commissions worldwide. Prior to joining the ICTJ,she was a consultant to the Ford Foundation, the UN High Commissioner for Human Rights,and numerous other organizations. Priscilla Hayner was previously a program officer on interna171
Vannath Chea has extensive experience working with governments and national and internationalnon-governmental organizations both in Cambodia and in USA. She served in the special missionsof the United Nations Transitional Authority in Cambodia (UNTAC) 1992-1993 and is currently thepresident of the Cambodian Center for Social Development (CSD), a non-governmental organization, advocating good governance through the institutionalization of democratic values and principles. Cheas articles have been nationally and internationally published in reviews and magazines.
tional human rights and world security for the Joyce Mertz-Gilmore Foundation in New York. Sheholds degrees from Earlham College and the School of International and Public Affairs at ColumbiaUniversity.Luc Huyse was, until his retirement in 2000, professor of sociology and sociology of law at theLeuven University Law School (Belgium). He has written extensively on the consolidation of youngdemocracies. His current research is on the role of retributive justice after violent conflict. He hasbeen a consultant to governments and NGOs in Burundi and Ethiopia.Peter Uvin is the Henry J. Leir Chair of International Humanitarian Studies and Director of theInstitute for Human Security at the Fletcher School of Law and Diplomacy at Tufts University.He has worked and consulted extensively in Africa for a variety of donor agencies. His numerouspublications deal with development aid, NGO scaling up, hunger and food aid, and genocide inthe African Great Lakes region. His most recent book Aiding Violence. The Development Enterprise inRwanda (Kumarian Press, 1998) received the African Studies Associations Herskowits award for themost outstanding book on Africa in 1998. Lately, he has worked with the OECD, the UNDP, andthe Belgian Secretary of State for Development Cooperation on post-conflict issues in Rwanda.Stef Vandeginste has an M.A. in law (Catholic University of Leuven, 1990). He did research onthe human rights situation in the Central African Great Lakes region for Amnesty International andworked for the United Nations Development Programme in Rwanda. He is currently doing researchon the international right to reparation for victims of gross and systematic human rights violationsat the University of Antwerp.Ian White is presently Chief Executive of the Glencree Centre for Reconciliation. He studied Youthand Community Work at the University of Ulster, Jordanstown, before becoming a Youth Workerin East Belfast. He has worked in youth, community work and community relations for the past20 years and is a former manager with International Voluntary Service and Co-Operation Ireland.He is currently a member of the advisory committee of the Travellers Mediation Project and is theTreasurer of the Irish Peace and Reconciliation Platform. Ian White is also a member of the advisorycommittee of the American based Peace Initiatives Institute.
Afghanistan 47Africa:forgiveness and 46justice, restorative 111, 112justice, view of 106see also under names of individualcountriesAfrican Commission on Human andPeoples Rights 113African Union 124, 150Agger, Inger 82Albania/Albanians 25, 30, 46Amadiume, Ifi 106AMANI 85amnesties 36, 71:as alternative to justice 10811evaluation 110forms of 10910history of 26origins of 109reconciliation and 110scope 10910unacceptability of 81, 114Amnesty International 38, 107Angola 78, 86:amnesties 109UNITA 109Argentina 21, 6263, 81, 125, 129, 146:disappeared 59, 125, 146, 155elections 109Human Rights Office 155Mothers of the Plazo de Mayo 84reparation 155trials 99Arusha tribunal see Rwanda,International Criminal Tribunal forASEAN (Association of South-EastAsian Nations) 49Asia 112Asian Womens Fund 158asylum seekers 23Australia 111, 112:Aborigines 31, 63, 155authoritarian regimes 64, 71Avocats Sans Frontires 28, 107, 165
Greece 99Guatemala 21, 23, 63, 65:amnesties 109Commission for Historical Clarification(CEH) 141, 142, 143, 148, 158peace agreement 163truth commission 28, 123, 124, 130,132, 138, 14144, 164, 166URNG 141, 142gypsies 60Hague Tribunal 164Haiti 125, 129healing 23, 24:apologies and 85, 86approaches to 8081compensation and 85context of 8081definition 7778imported methods 8283individual 80, 83local resources and 8081long-term nature 79, 87programmes and strategies 8186psychological 83psychosocial programmes 82, 8384reconciliation and 7980, 86reconstruction programmes and 81reparation and 24, 85, 86self-help groups 84social justice and 86symbolic forms of 8586timing 28HIV/AIDS 55Honduras 123human rights 10, 60, 65, 147:abuses, duty to prosecute 99100,137human rights law 14951Human Rights Watch 107, 165Hungary 155Hutu:reconciliation and 21refugee camps 68see also under Burundi; RwandaIgnatieff, Michael 65, 7273immunity 109impunity 71, 108, 109, 165Indonesia 75Institute for Justice andReconciliation 28, 165Inter-American Commission onHuman Rights 146, 155Inter-American Convention on HumanRights 10910Inter-Diocesan Project for theRecovery of the Historical Memory124
140Mani, Rama 60, 163Marcos litigation 160Martin, Ian 119Mazrui, Ali 46media 23Mdicins Sans Frontires 68Mengistu 60, 99Merwe, Hugo van der 26Mitchell, Senator George 90Mok, Ta 50Mozambique 35, 36, 37, 75, 110, 122Mugabe, President Robert 34, 35, 37,15960Muslims 30Muzorewa, Bishop Abel 35Netherlands 26, 64, 68:Institute for Care and Welfare 83New Zealand 111, 112:Overseas Development Agency 113NGOs (non-governmentalorganizations) 29, 59, 65, 68, 71, 96see also unders names ofNicaragua 109Nigeria 46, 47, 123, 134Nkomo, Joshua 37, 38Nol, General Lon 49Northern Ireland:befriending 83ceasefire 90combatant groupings 95EU and 90geography 47Glencree Centre for Reconciliation9096Good Friday Agreement 90LIVE Programme 9096Loyalist paramilitaries 90, 91Loyalists 89Minister for Victims 16Nationalists 90NGOs 96reconciliation 29Republican paramilitaries 90RUC 89, 90self-help groups 84USA and 45, 90victimcombatant dialogue 89victims 62, 63, 83Victims Commissioner 123violence in 41, 62see also IRANovick, Peter 64Nuremberg war crimes tribunal 102Nyerere, President Julius 34OECD (Organization for EconomicCo-operation and Development) 17
Offe, Claus 71offenders:apologies without accountability 73collective 23, 68degrees of guilt 20gender 6869guilt denial 7273hierarchies of 6970indirect 6768, 160individual 68laws and 160magnitude gap 73motives of 7072primary 6768reconciliation and 7275reintegration 7475, 76types of 6770understanding 6772unintentional 68victims, interchangeable roles 6465women 68Organization of African Unity 124, 150Organization of American States 150
Palestine 68Panama 123Paraguay 65PEACE Foundation Melanesia 113peacemaking 17Peru 110, 123, 132, 134Philippines 65, 110, 160Pinochet, Augusto 102, 109, 138Poland 102post-traumatic stress disorder 79Pot Pol 49, 50poverty 45, 55, 119Princess Diana Fund 113prostitution 13, 55, 56, 62public opinion 63
giving testimony 83guilt denial and 72mandate and powers 13032naming names 13536objectives 13031offenders accountability 12526offenders engaged 13637operation of 13238origins 129outreach 133period of operation 131period under consideration 131political context 128powers 13132preparatory phase 13233public hearings 134reconciliation and 126reforms and 126reparation and 126, 15455research 13334resource issues 132risks 12728sanctions 132sponsorship 129statement-taking 133truth-seeking and 123, 125understanding 12438victims, public platform for 126violation, types investigated 131see also under victimstruth-seeking 14, 12324truth-telling 23, 24:reconciliation and 122Turkey: Armenians massacred 64Tutu, Archbishop Desmond 48, 106Uganda 125, 129, 134UNESCO Commission on Education2829Union of Soviet Socialist Republics44, 49United Kingdom: terrorists victims in91, 92, 93United Nations:Basic Principles and Guidelines onthe Right to Reparation for Victims ofHuman Rights 150Cambodia and 50, 52, 101Commission on Crime Prevention andCriminal Justice 151Commission on Human Rights 57, 68,149Commission on Human RightsDeclaration 54, 55Committee Against Torture 146, 150,165Compensation Commission 15354Conference on Racism 31conflict prevention 28
victims:children 5657collective 23, 54competition 64, 156definitions 23, 57, 58, 5960, 65empowerment 6264gender 5556, 58identification 5762, 65individual 54legal definitions 5960, 65
mobilization 6264offenders, interchangeable roles6465organizations 62, 63perception of 60, 65re-victimization 61registration 156self-victimization 62social stigmatization 6162socio-political factors 5859survivors and 86treatment of 61truth commissions and 61types of 5457, 157Vietnam 49Villa-Vicencio, Charles 20violence:impacts 7879traditional mechanisms destroyed 81Vlok, Adriaan 71Waal, Victor de 34Wessells, Michael 78widows 13, 120women:abuse of 13, 58, 60combat and 55as offenders 68peace negotiation process and 14reparation 59sexual abuse of 60social stigmatization 62World Bank 27, 164World Health Organization 77:Declaration of Cooperation: MentalHealth of Refugees 83World War I 25World War II 25, 31, 61
Founded in 1995, the International Institute for Democracy and Electoral Assistance(IDEA) is an intergovernmental organization that seeks to promote and develop sustainable democracy world-wide. IDEAs current areas of activity include: Electoral systems and management. Political participation, including women in politics. Political parties, management and financing. Post-conflict democracy building and dialogue. Democracy at the local level. Democracy indicators and assessment.
A Handbook
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