Peace versus Justice Edited by Chandra Lekha Sriram and Suren Pillay
Summary:
This book attempts to analyze this the different forms of transitional justice that have taken place in modern Africa. Exploring the political, economic, and social environment, this analysis looks at both domestic and foreign actors as it highlights successes and pitfalls during the reconciliation process.
Introduction/Analysis
Although, “Peace vs. Justice: The Dilemma of Transitional Justice in Africa” does not specifically deal with Tunisia, it helps to situate Tunisia’s peace and justice process through looking at the African experience of transitional justice. It asks the fundamental question should truth or justice be prioritised in post conflict resolution. Is amnesty an effective tool or does it create more resentment? South Africa has often been held up the model, but do current visions of truth and justice resolution overlook traditional African methods of post conflict resolution.
Many authors in the book believed that amnesty does not foster good will or reconciliation but only tends to lead to more resentment. This is an important aspect for Tunisia, as they are currently debating a law to give amnesty to public officials and businessmen who committed financial crimes during the past regime. This book does not address financial crimes, which highlights how groundbreaking Tunisia’s truth and dignity committee is in attempting to tackle them. Charles Villa-Vicencio, a former member of the South African Truth and Justice Committee, also points out that although truth and justice is important, there needs to be socio-economic reforms, because the people will remain frustrated as long as there are no jobs and not enough food.
Points for Analysis
- amnesty does not foster good will or reconciliation but only tends to lead to more resentment
- not many of the these mentioned financial crimes mostly about prosecuting human rights abuses
- Villa-Vicencio not enough to just have truth need socioeconomic reform as well
- transitional justice does not created democratic reforms
- transitional justice programs need to work in conjunction
Key lessons
- peace vs. justice dilemma is oversimplified
- pursuit of justice is not always an obstacle to peacemaking
- timing and sequencing
- when should accountability mechanisms be put in place? right away to help democratization or wait w awhile to allow consolidation and stabilisation
- should truth commissions and trials occur simultaneously?
- what is it for?
- must have local support and not soley be an external imposition
- large footprint of south africa
- south africa model remains large
- but still has problems with economic reform and reparations
- local and international
- opinions for who bears the greatest responsibility can differ
- insider vs. armchair
Chapter 1: The Politics of Transitional Justice by Yasmin Louise Sooka
Yasmin Louise Sooka, a member of both the South African and Sierra Leonean TRC, discusses the dilemma over whether to prosecute or give amnesty. She warns that even if the new government has achieved control, they may not have control over the security forces or human rights perpetrators-so holding them accountable may destabilize the society. This raises questions over whether prosecutions will imperil a peaceful transition and strengthens the argument of national unity, which implies that the rights of victims should be compromised for the sake of national reconciliation. However, she stresses that peace cannot come at the sake of further impunity and that in order to ensure positive peace, the root causes of conflict must be addressed in order to prevent the conflict from reappearing. She warns that negative peace only ensures an end to the immediate violence, but which permits old divisions and tensions to flare up later, resulting in an uneasy peace.
Chapter 2: Inclusive Justice by Charles Villa-Vicencio
Charles Villa-Vicencio, a member of the South African TRC, argues that amnesty does not foster reconciliation but resentment. He believes that amnesty is not the result of good will, but is used as “a calculated tool for political benefit”. The South African model was criticized for absolving perpetrators of human rights abuse by letting them only go on remorse, where Villa-Vicencio argues that not only is truth is not enough to get past trauma but there is a need socioeconomic reform as well. He believes that fostering dialogue and conversations are necessary is even if there are inherently going to be differing views on how to approach transitional justice.
Chapter 3: Prosecute or Pardon by Kingsely Chiedu Moghaulu
Kingsley Chiedu Moghaulu, spokesperson for the Rwandan tribunal, examines political factors that shape a country’s decision to prosecute or pardon. He finds that judicial processes have a better track record than other means of transitional justice, as TRC’s are useful compromises but Moghaulu is not convinced they have the lasting effect that is often cited. However, he also emphasizes that legalism is not the correct response for every atrocity that is why truth commissions have a place, however they are not to be used instead of criminal courts. Truth commissions and criminal trials are not mutually exclusive, both can have a place in the reconciliation process.
Chapter 4: Gender and Truth and Reconciliation Commissions by Sheila Meintjes
Sheila Meintjes argues that gender was often overlooked and the human rights approach that is often used in transitional justice does not take into account the history of each country that created the problems. Gender had been an important aspect of people’s status and identity in the past, therefore the transitional justice process must address it, in order to really create a new society that gives basic fundamental rights to all. Furthermore, the mere presence of women at the table does not assure that their experience will be taken into consideration, and throughout the transitional justice process women were often painted as victims, rather than agents of their own free will. And although many transitions saw constitutional being changed to reflect increased women’s rights, this has not led to real material transformation.
Chapter 5: Transitional Justice, Democratisation and the Rule of Law by Mirelles Affa’a Mindzie’
Mirelles Affa’a Mindzie highlights the interconnected relationship between democratisation and rule of law in peace building. Democracy and rule of law can facilitate an effective transition, because the democratic process allows for vulnerable groups to be empowered and fosters multiethnic consensus. In addition, the creation of a civil society allows for more tolerance and promotes reconciliation. Unfortunately, transitional justice mechanisms have only had limited success in aiding to implement democratic institutions and rule of law. For the transitional justice committee to facilitate the desired change, the committee needs to be truly independent with a credible commissioner selection process.
Chapter 6: South Africa’s Truth and Reconciliation Commission from a Global Perspective by Alex Boraine
This chapter speaks about South Africa’s Truth and Reconciliation Commission and the impact it had nationally and internationally. It was created with the premise that only by confronting the nation’s past with killing, torture, imprisonment, and discrimination could they move forward. Subsequently, countries like Sierra Leone, Timor-Leste, and Peru created committees built around similar ideals. Both SA’s failures and successes have influenced groups since. The South African Commission popularized public hearings (rather than behind closed doors) and a few other things (widespread consultation, powers of subpoena and search and seizure, media access to the commission’s work, and introduction of institutional hearings as well as individual hearings). SA failures included not being able to persuade whites of their role in change (many did not attend hearings). They also failed to uncover the whole truth of apartheid, especially with regards to the military and its involvement.They did not secure justice for people who drew up the terrible apartheid policies. Finally, reparations to the victims were not adequate. But all in all, good leadership example (TRC).
Chapter 7: Reflecting on the Sierra Leone Truth and Reconciliation Commission by Thelma Ekiyor
SLTRC claimed in 2005 that the injustices from their 10 year civil war would be addressed. However, they are still having a hard time implementing the recommendations from this report, meaning they have not achieved much. Sierra Leone is currently at peace, but pre-civil war structural problems persist. TRC process didn’t bring peace or reconciliation, but it did provide a platform for long-term peace. International involvement stifled local ownership of change. Based off of SA, but the situation was different (civil war vs apartheid), and Sierra Leone didn’t have the same leadership figures. A commitment to carrying out recommendations from national report is essential to progress.
Chapter 8: Peace versus Justice? A view from Nigeria by Matthew Kukah
Nigerian Human Rights Violation Investigation Committee was created by Obasanjo. Establishment of HRVIC was newfound and surprising for Nigeria so there were lots of critics and cynics. HRVIC had lots of problems, but these problems were results of the environment in which they were operating, in which the old order still had tremendous influence. Obasanjo set up his commission as a tool to help keep himself in power, by pleasing people. Thus, TRCs aren’t meant to solve our problems, merely point out past flaws and therefore give us a good view of what to avoid in the future. Spectators cry for more to be done than the destruction of military rule, but if people are content with just change, who are we to complain more than the people who experienced these things?
Chapter 9: A Path to Peace and Justice. Ghana’s National Reconciliation Commission in Retrospect by Kenneth Agyemang Attafuah
NRC in Ghana was created in 2002, wanting to reconcile the people after military rule and public officers abused Ghana. They were trying to help transition Ghana into more of a democracy and open society. However, in this case, prosecution of perpetrators would have been inappropriate because it was so late. Interestingly, in Ghana, this TRC came 9 years after the official transition to a democracy. This is why it didn’t work very well and wasn’t appropriate. It needed to be closer to the actual transitional justice.
Chapter 10: Peace and Justice: Mozambique and Sierra Leone Compared by John L. Hirsch
This chapter is a comparison between the two countries post civil war. Mozambique had successful reconciliation while Sierra Leone still has very high tensions. Mozambique looked ahead for progress rather than looked to assign accountability and punish a few responsible individuals. Lots of people died in both, and we have learned that sometimes the decision to grant amnesty is better in the long run, and the decision to grant it or not is especially best handled by domestically based processes of transition. Mozambique removed Western ideas of transition and reconciliation and focused on creating justice organically from its own soil and its own people. This shows that an international human rights movement isn’t always best for protecting the people. Sierra Leone has transitioned more recently, so it is harder to judge, but they have so far not implemented their primary goals for reparations and transition. These two have shown that there is no one easy solution for all emerging democracies, each country is a case by case basis.
Chapter 11: Sierra Leone’s ‘not-so’ Special Court by Abdul Tejan-Cole
RUF attack on Sierra Leone from Liberia and then became a political party.Thus, Rebel leaders became politicians. TRC was established when RUF was removed, meaning peace was valued more than justice. Lome Peace Accord granted amnesty, even though this was technically unconstitutional. Court has failed to be consistent and implement laws and agreements. There needs to be a trade-off between peace and justice, not just all one or the other. This trade-off must be societally and locally accepted. Not every responsible individual can always be prosecuted, and this is why negotiations for peace and justice are necessary and better carried out locally. If we only value peace, it will not be sustainable. If we only value justice, there will not be peace.
Chapter 12: Charles Taylor, the Special Court for Sierra Leone and International Politics by Abdul Rahman Lamin
Sierra Leone’s Special Court charged and tried the former Liberian President, Charles Taylor, but the court has still been repeatedly questioned as a legitimate leader for peacebuilding in Africa long-term. They have many skeptics who claim that they have made questionable choices in terms of who to prosecute and who not to prosecute. Also their decisions to prosecute individuals to the fullest extent possible have potentially added tension, this scapegoating can be problematic. The argument in this chapter is that the principle of the court is well-founded, but after a certain amount of time, continual judicial accountability and prosecution may stand in the way of long-term peace. In short, the Court can be criticized, but it is also important to bear in mind that the government did not provide other adequate programs/suggestions to help deal with the West African situations encountered. The fusion of local/domestic and international presence in this Court may have been good at first, but now it seems that different self-interests are being promoted, and the victims of Sierra Leone’s war are being forgotten about.
Analysis:
In the chapters 6-12, there are lots of political lessons from recent African history that remind us of Tunisia’s recent transition, especially when it comes to Transitional Justice. Many of these chapters touched upon the concept of a ‘Truth Commission’ and what these types of commissions entail and how to make them successful. By stressing the fact that Truth Commissions are completely neutral, not good or bad, these chapters showed us that what the two things that these types of commissions often value most is attaining peace and serving justice. Tunisia itself had a very effective Truth and Dignity Commission (similarly to South Africa) but this commission was neither a good nor bad agent, just neutral. These chapters also insinuated that the strength of leaders in Truth Commission is important, as to ensure unity in values and goals. Tunisia completed this when Moncef Marzouki established the commission, and this is why the country remains on a stable track for reconciliation, like South Africa. Another important point learned in these chapters that can be attributed to Tunisia is the idea that Truth Commissions must be part of or at least near the period of Transitional Justice. Tunisia implemented its TDC while the new order was still being established, which prevented eventual bias from the new order towards members of the old regime.
However, it was also stressed in these chapters that every bit of Transitional Justice, especially through Truth Commissions, is a case by case situation. Both Mozambique and Sierra Leone tried to mimic South Africa’s Transitional Justice system, but because their situations were so different, it worked for Mozambique but not for Sierra Leone. Other countries should bear this in mind if they try to copy Tunisia. With this in mind, it is important to recognize Tunisia’s success when it comes to making the Transitional Justice process as domestic as possible. While each situation may be case by case, International involvement often leads to corruption and a loss of focus on what matter for the country itself, since there are other self-interests invested. For this reason, we find it important that Tunisia eventually strive away from loans from IFIs.The authors in this book strike this point home well, as well as encourage minimal scapegoating, since peace and justice should be valued equally. If a country is experiencing a transitional process, bearing these points in mind, as Tunisia did with many, can potentially help ensure success, and therefore: peace and justice.
Key Points:
- Strong leaders are important
- There is no such thing as good or bad TRC,
- TRCs role is to help people prepare for the future but not actually create the progressive future
- TRCs must be established in or at least temporally near TJ.
- Domestic processes can be just as successful or more successful than TJ processes with international intervention .
- TJ is case by case, there is no one size fits all model.
- Peace v Justice. We cannot value one more than the other. There needs to be compromise.
- International involvement means eventual promotion of long-term self-interest.
- Again, scapegoating can many times do more harm than good.
Chapter 13: The International Criminal Tribunal for Rwanda by Wambui Mwangi
In this chapter Wambui Mwangi explores the International Criminal Tribunal for Rwanda and its effect on the country’s reconciliation process. After the Rwandan Genocide, the UN Security Council came together and attempted the lay the framework for reconciliation with the Arusha Peace Agreement. However this document was never signed and therefore the ICTR was established in order to prosecute those responsible for crimes against humanity. The Rwandan government and Security Council had different visions for the purpose of the ICTR which led to discrepancies in Rwanda’s penal code as well as a slow and inefficient prosecution process. For this reason, little was achieved by the ICTR and the Rwandan people and government felt as though they lost control of the transitional justice process.
Chapter 14: The Politics of Peace, Justice and Healing in Post-war Mozambique by Victor Igreja
This chapter explores post-war Mozambique and how spiritualists were involved in the reconciliation process. After the civil war between the FRELIMO and RENAMO parties in Mozambique, little was said about the humanitarian crimes committed. Both parties were guilty and therefore pursued amnesty and amnesia during the transition to democracy. Eventually, a law was passed that granted amnesty but the pain of the people still remained. Thus, the grassroots movement of fighting magamba spirits emerged. Spiritual members of the community would ask citizens to face the evil spirits (magamba) of those who died in the war. This brought the crimes committed back into the open and cured the Mozambican population of its amnesia. This allowed the reconciliation process to continue from the grassroots level to the higher authorities in order to finally seek justice for those that suffered.
Chapter 15: Indigenous Justice or Political Instrument by Helen Scanlon and Nompumelelo Motlafi
This chapter deals with the tribal courts used in Rwanda after the genocide. Post-genocide, the ICTR was moving extremely slowly and did almost nothing to prosecute the lesser crimes associated. Thus, the tribal courts, or gacacas, were reestablished in order to deal with lesser crimes to convicte people to community service and short prison terms. These courts used elder men of the community as judges and dealt with local crimes. They were extremely efficient and, working as an organized body, were able to prosecute thousands that were responsible for some part of the genocide. However, criticisms of these courts include the lack of international standards and the sometimes ethnic biases that come along with certain communities.
Chapter 16: The International Criminal Court Africa Experiment by Chandra Lekha Sriram
This chapter explores the International Criminal Court and its relationship to Africa. The ICC is often criticized for its involvement in Africa as it appears to be a court specifically designed to deal with African problems. Since its ratification in 2002 (largely as a response to the Rwandan and Yugoslavian Genocides) the ICC has dealt with cases in the Central African Republic, the Democratic Republic of the Congo, Darfur, and Uganda. Many believe that the ICC is a sort of neo-colonialism because of its heavy involvement in Africa, however the fact that African nations refer themselves to the court seem to reject this issue. However, it is important to note that many humanitarian crises occur in Africa due to past issues and many of these countries struggle when it comes to dealing with them on their own.
Chapter 17: The International Criminal Court in Darfur by Dumis Buhle Ntsebeza
This chapter focuses on the International Criminal Court and its involvement of Darfur. The genocide of Darfur sparked the UN to create the UN commission of Inquiry on Darfur (UNCOI). This body investigated many crimes against humanity and eventually ended up charging Ahmad Harun and Ali Kushayb with the most serious of crimes. The former being the head of the “Darfur Security Desk” responsible for hiring the Janjaweed militias and the latter being the colonel that led massive attacks on the Sudanese citizens. The court also found a major neglect from the Sudanese government when dealing with these issues. But, despite all of this, there is still criticism of the ICC for its slow pace and lack of actual “truth” uncovering when dealing with these crimes.
Key Points:
- It is important for governments to take ownership of the transitional justice process
- Past abuses are something that need to be addressed or there is a risk of national pain
- While using sound procedure, the ICC is a slow moving and overly bureaucratic body
- The power of small communities and grassroots efforts are things that should never be overlooked
Analysis:
In looking at Tunisia, there is a lot to be learned from these case studies. For one, the fact that Tunisia has its own Truth and Dignity Committee is a major step in the right direction. We see from Rwanda that it is important for a government to take responsibility for its own reconciliation plan. However, where Tunisia is lacking is its grassroots efforts in attempting to prosecute those responsible for past abuses. The situation now is very slow and is often stonewalled by members of the Old Regime. If Tunisia really wants to push the process forward, it needs grassroot pressures and procedures like those seen in Mozambique.
These issues are important to understand because they are pitfalls and success that can be used as a model and applied to other cases of transitional justice. For this reason, I agree with the points presented and would recommend this advice to any State going through a reconciliation process.
(Text by Caroline Guiot, Morgan Ingenthron, and Adam Fisher)