16 July 2008
interview
Oslo — In the aftermath of massive human rights abuses such as the Srebenica massacre, the Rwanda genocide, or in Liberia and northern Uganda, the search for justice and reconciliation can be a controversial and dangerous business.
Atrocities in places such as Africa and the Balkans have increasingly put the focus on transitional justice, a range of approaches to address past massive human rights violations, that includes international tribunals, reconciliation commissions and truth-seeking measures.
While transitional justice may be necessary and important, judicial approaches have been accused of endangering fragile peace processes by threatening the perpetrators, while some fear that non-judicial means let murderers get away.
Transitional justice approaches are divided into judicial and non-judicial bodies. Judicial approaches include permanent bodies such as the International Criminal Court (ICC), ad-hoc bodies such as criminal tribunals for former Yugoslavia and Rwanda, as well as hybrid local and international courts as in Sierra Leone.
Non-judicial approaches are dominated by Truth and Reconciliation Commissions (TRCs), for instance in South Africa, that focus on understanding the conflict and on reconciling victims and perpetrators. Transitional justice also includes institutional reforms, as of the judicial and security sectors.
In Liberia a TRC has been employed, as well as judicial and security sector reform, in the search for justice and reconciliation following that country's brutal civil war. IPS spoke to Dorota Gierycz, the former representative of the U.N. high commissioner for human rights in Liberia, about her experiences with transitional justice and lessons learned. Gierycz has just written a working paper on transitional justice as visiting researcher at the Norwegian Institute of International Affairs (NUPI).
What does transitional justice mean to you, and what did you learn from Liberia?
These are situations where, on the one hand, there is a desperate need for a new beginning, and I believe that this is only possible when you also assess what happened and why it happened. This is why the question of justice, and therefore of allowing societies to move on, comes into the picture.
On the other hand this is a very controversial issue, because some very traditional approaches to peace building are that 'ok, we have a fragile peace, and if we start talking about the past, if we start looking into causes and talking about crimes which were committed, it will probably hamper reconciliation.' I am of a different opinion, because I believe that yes, there is a very difficult initial period when there is this kind of tension between justice and peace, but in the long run there can be no peace without justice, and if we just keep pushing things under the rug there will be no room for genuine understanding and consolidation of the society and democracy.
Transitional justice as a principle is a good principle, but it can go both ways depending on how it is applied in practice. I think we should really do our best to help transitional justice, both as a concept and as an institution, to help and not to divide.
Are TRCs too soft on the perpetrators of atrocities by relying more on public confessions and on reconciliation than on judicial punishment such as imprisonment?
I think that there is a misunderstanding here, because the TRC with which I was involved in Liberia explicitly mandated that grave violations of human rights -- genocide, war crimes, and crimes against humanity -- are excluded from any future amnesty. With the ICC deciding on doctrine, these categories of crimes are practically excluded from amnesties. The cases of Milosevic and of Charles Taylor show that the general international rules are still applied. (Former Yugoslav president Slobodan Milosevic was prosecuted at the ICC following the Bosnia and Kosovo conflicts, but died of natural causes before the end of the proceedings. Former Liberian president Charles Taylor is currently facing prosecution by the Special Court for Sierra Leone for his alleged role in the civil war there.)
What about the opposite accusation, that judicial proceedings risk reigniting conflicts? Take northern Uganda -- the ICC is refusing to drop its war crimes charges against the leaders of the rebel Lords Resistance Army even though they are refusing to give themselves up unless the ICC does so.
Look, for me this is where we started our discussion. There is a kind of tension, but I personally believe that there are certain very basic principles which are included in human rights standards, and which everybody in a way accepts because all these countries are members of the U.N. I think it is increasingly understood and felt that there are certain crimes which go beyond what can be forgiven and forgotten, because it would be very difficult for people on the ground to accept it.
I think there are some let's say lower crimes -- during the war people are killing each other, it's tragic -- but I still think that these sorts of crimes can be much more a subject of forgiveness. But when you get a situation where somebody is hijacking the country or hijacking a group and committing systematic atrocities and abuses against local populations, then I think that that should be a matter for the ICC. Justice should be delivered; these perpetrators should not be forgiven like those of some so-to-say smaller crimes.
And I have doubts as to whether it really is the people on the ground that want the perpetrators of atrocities to be forgiven. Who is speaking on behalf of these people? Did anyone really talk to them? Are people on the ground in northern Uganda free to express their views, or do they fear that the warlords will be back and that they will be punished? In Liberia people were saying that if Charles Taylor was apprehended, people would rise up against it and there would be a security threat, but it never happened. I have no proof or indication that they were anything but glad that Charles Taylor was apprehended.
But reports from northern Uganda indicate that at least some of the local populations want the ICC to pull out, because they are afraid that if it does not then the conflict will continue as the Lord's Resistance Army leaders will not give themselves up?
But you see this is giving in. This is because of brute force and not because of conviction. Yes it is a difficult aspect, but I think that in a way it confirms my point. For example, in Liberia some people that were alleged to have committed war crimes were elected to the parliament, which I think is the same mechanism of force and not conviction. But the people who elected them were very happy that Charles Taylor was arrested because the 'danger' was removed. So when it comes to northern Uganda I think that we can only see how people feel about it when the 'danger' is removed. Otherwise it's a survival mechanism, which of course is natural if people are oppressed for years -- they have to survive.
Would you say that the requirements for successful transitional justice programmes are different in different places?
Yes. One of my conclusions is that we really have to go case by case. For instance, when is a TRC needed and which kind? Or is it a tribunal? Is it a national tribunal or a mixed tribunal? Should it be the ICC? At which point during the conclusion of the conflict should it be established? These sorts of evaluations are very important when you work in the field.
Are there enough of these local evaluations, or is there too much reliance on general blueprints?
There is a lot of descriptive work in this area but not so many analytical pieces based on analysis of very concrete cases. I would like to see a few cases very thoroughly analysed to see what worked and what didn't work. For example, if we had had some very practically formulated conclusions from Sierra Leone, it would have helped my colleagues and I very much in Liberia when we were dealing with the TRC.
Who should do these analyses and with whom?
It should be independent academic institutions, because all of us, the courts, the commissions, the U.N., we are part of the structure. There should be very independent assessments based on very thorough discussions with all stakeholders -- the U.N., the courts or commissions, and very much the civil society. Not only civil society elites but across the board.
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