In the monthly "Ethical Inquiry" series, we examine ethical questions, highlighting a broad array of opinion from journalism, academia, and advocacy organizations. Our intent is to illuminate and explore the complexity of some of the most vexing ethical questions of our time.
Ethical Inquiry: November 2011
Seeking Justice After War Crimes, Genocide, Crimes Against Humanity: Which Approach?
“The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.”
– Justice Robert Jackson, Opening Statement, Nuremberg Trials, 1945
Which approach is best when seeking justice after war crimes, genocide, and crimes against humanity? A locally-driven approach? One led by the international community? A trial format? Truth and reconciliation commissions?
In this "Ethical Inquiry" we explore these questions in advance of “Just Performance: Enacting Justice in the Wake of Violence” a symposium the Center is hosting at Brandeis in collaboration with Northeastern University School of Law on December 1 and 2, 2011. The symposium will explore the performative dimensions of justice seeking in the aftermath of violence, with a focus on Cambodia, Peru and the United States.
War crimes and the violation of human rights increasingly lead to demands that those who have perpetrated these acts be “brought to justice.”
This ideology of retributive justice, which finds strength in domestic analogy, was developed during the 1945 international military tribunal known as the Nuremberg Trials of Nazi officials. This was the first time that individuals were charged with "crimes against humanity," and this justice-seeking approach continues to evolve through the work of the International Criminal Tribunals for the former Yugoslavia and for Rwanda.
However, the international community has sometimes prescribed mechanisms for criminal justice without first allowing the populations directly affected by the alleged crimes the opportunity to determine the kind of justice they wish to seek, or the best method to seek it.
While some argue that international and national criminal trials seek justice in the retributive sense, others argue that these trials can exacerbate divisions and hinder a society’s attempts to move forward and achieve sustainable peace.
More recently, alternative notions of justice for war crimes and crimes against humanity have grappled with this concern; some even reject the underlying values of criminal tribunals. Restorative justice favors reconciliation over punishment and has been applied increasingly since 1974.
With the advent of alternative justice mechanisms – including truth and reconciliation commissions (TRCs), amnesty commissions, the gacaca trials in Rwanda, and community performances – the pursuit of justice now encompasses a range of arguably exclusive strategies for reckoning with crimes of a heinous nature.
Truth and Reconciliation Commissions: A Local Approach
Since 1974, truth and reconciliation commissions (TRCs) have been established in approximately two dozen countries, including Argentina, the Central African Republic, Ghana, Morocco, Nigeria, Rwanda, Sierra Leone and South Africa. This development suggests that restorative justice is not a fad, but an innovative approach for citizens who must live with former enemies.
The most successful TRCs owe their success to the quantity and quality of local, public consultation. Local consultation enables a better understanding of the dynamics of past conflict, patterns of discrimination, and types of victims. Through open discourse, commissions have become a place for collective discussion about the past. Their ultimate objectives are to fashion a collective memory of war and reconstruct national unity.
Local consultation and awareness have also been key to the success of international criminal tribunals. While locating the Yugoslavia and Rwanda tribunals outside the country has allowed them to benefit from well-equipped operational facilities, as well as significant security and independence in their proceedings, their field offices allow them to benefit from community interactions. In particular, field offices allow criminal tribunals closer proximity to the evidence and witnesses, more access to the victims, and the ability to enhance national criminal justice capacity building.
Critiques of Truth and Reconciliation Commissions
The local nature of TRCs can be construed as a liability. Truth commissions, although advocated as a way to promote peace and reconciliation, are often criticized as being politically motivated because they are formed by the national government, which may itself be implicated in violations of international law.
While truth and reconciliation commissions are generally applauded for promoting a victim-centered, restorative justice, victims may also be dissatisfied with the limitations of their mandates. For example, after the completion of the Liberian TRC, some Liberians decided to push for the establishment of a special court, or international tribunal, to prosecute those deemed responsible for atrocities committed during the civil war.
TRCs and criminal tribunals ultimately share the goal of contributing to a deep-rooted and lasting peace in the societies in question. However, they differ fundamentally in their conception of justice – the former adopts a restorative approach while the latter seeks retribution.
Amnesty is a particularly controversial topic that truth commissions bring up.
Several proponents of truth and reconciliation are also proponents of amnesty and believe it is a key piece in ending conflict and national divides in a post-conflict society and promoting peace. This is because amnesty commissions, like the Uganda Amnesty Commission, encourage warring parties to lay down their arms and confess to their crimes in exchange for a waiver of punishment.
However amnesty, some argue, raises fundamental moral problems, infringes upon the mission of international tribunals, and calls into question a major accomplishment of these last years – the refusal to grant immunity for war crimes, crimes against humanity and genocide.
In addition, amnesty may produce a two-tier justice system: one for the major criminals and one for those who carried out the orders. This would be difficult to justify vis-à-vis the universal conceptions of the rule of law, e.g. equality before the law. For now, international criminal tribunals with Security Council mandates are not obligated to enforce amnesty agreements made between warring parties.
Colombia hoped to demobilize its paramilitaries through its adoption of a “Justice and Peace Law.” Although it did not provide amnesty, this law granted generous concessions to paramilitary commanders. During the five years that the law has been in effect, the JPL has yet to yield a single final conviction, while 290,000 registered victims are waiting for justice. This record certainly legitimizes complaints that tribunals and traditional court systems often work too slowly to address the needs of victims in post-conflict communities.
Criminal Tribunals: An International Approach
Proponents of international tribunals believe that peace and stability can only prevail if the population perceives that politically charged issues, such as ethnic discrimination and denial of the right to property or citizenship, can be addressed in a legitimate and fair manner. Viewed this way, accountability is the first imperative of justice. In this context, particularly in transitional societies where many of these politically charged issues have been laid bare, criminal trials can play an important role.
Criminal trials express public denunciation of criminal behavior, provide a direct form of accountability for perpetrators, contribute to greater public confidence in the state’s ability and willingness to enforce the law, help societies to build a shared historical account of their conflict, de-legitimize extremist elements, end cycles of retributive justice, and ensure that victims can see their former tormentors made to answer for their crimes.
An indication of the Court’s success and the faith of the international community in this model of justice is the number of courts that have been established since its founding to address atrocities in Cambodia, Kosovo, Rwanda, Sierra Leone, and Timor Leste, as well as the creation of the International Criminal Court.
For example, the International Criminal Tribunal for Rwanda was established in November 1994 to investigate and prosecute the political, military and civic officials most responsible for the 1994 genocide during which an estimated 500,000 Rwandans, mostly of Tutsi identity, were killed.
The impact of current international courts can also be felt in the application of the principle of complementarity. Under this principle, the International Criminal Court will only intervene directly in the legal affairs of a state if the state is unable or unwilling to prosecute those most responsible for widespread commissions of international crimes. This principle has prompted many states to develop their capacity to conduct international criminal cases in fair trials.
Overall, these courts reflect a growing shift in the international community, away from a tolerance for impunity and amnesty and towards the creation of an international rule of law. Despite their limitations and imperfections, international and hybrid criminal tribunals have changed the character of international justice.
Critiques of Tribunals
These tribunals are not, however, without criticism. The processes of these courts are criticized primarily on these issues: pursuing political prosecutions; not addressing the reconciliatory needs of victims, including the need of victims to tell their stories, hear apologies, and receive reparations; poor public outreach; and lengthy trials.
There is widespread debate about whether the selection of a particular transitional justice strategy necessarily entails a choice between peace and justice. Some argue that tribunals may harm the cause of peace in the pursuit of justice by discouraging those who may be prosecuted from turning themselves in, which could end the violence.
Additionally, one criticism of the effectiveness of the ICTY points to the fact that, although established two years before the Srebrenica massacre in which some 8,000 Bosniak Muslims were slaughtered, the ICTY did not prevent the massacre. Is the tribunal a success when relationships continue to be frayed across ethnic lines or its trials do not have a deterrent effect?
While some contend that these tribunals have enhanced the global character of the rule of law, others see them as a continuation of an imposition of conceptual frameworks and institutional processes familiar to the developed world.
Seeking Justice: Some Examples
South Africa's Truth and Reconciliation Commission (TRC), established in 1995, is the best known example of restorative justice. After the transition from apartheid, the Government of National Unity authorized a truth commission to study the effects of apartheid in that country. The TRC was charged with investigating widespread human rights abuses that occurred between 1960 and 1994, during the apartheid regime, with the goal of developing a complete national history of the atrocities of that period.
Perpetrators were offered amnesty in exchange for full, voluntary confessions. This commission was deemed necessary by the Government for a peaceful transition to democracy and was part of a compromise between the African National Congress and the outgoing apartheid government.
Anecdotal evidence suggests that for many who addressed the commission, the value of telling one's story before a supportive audience was significant. Referring to the psychological value of testifying, Commissioner of the South Africa Truth and Reconciliation Commission Mary Burton said that giving public testimony was healing for many survivors: "The right to be heard and acknowledged, with respect and empathy, did contribute to a process of healing in many cases.”
The TRC of South Africa is generally considered a success and had a large impact on the international community. It sharply contrasted with the criminal justice paradigm of the Nuremberg Trials after World War II. Bishop Desmond Tutu, the Commissioner of the TRC, acknowledged its deviation from standard judicial practices and expressly rejected the paradigm of the Nuremberg trials.
Instead, Tutu valued the healing, harmony and reconciliation of the TRC over the retributive, punitive sentences of the courts. Former Minister of Justice of South Africa, Dullah Omar, agreed with Tutu and determined that “...a commission is a necessary exercise to enable South Africans to come to terms with their past on a morally accepted basis and to advance the cause of reconciliation."
The impact of the TRC of South Africa is clear in the gacaca tribunals, taking place in Rwanda to foster national unity in the wake of the 1994 genocide. The gacaca trials, like the TRC of South Africa, aim to promote community healing over the punitive objectives of retributive justice mechanisms.
Gacaca is a traditional method of conflict resolution in Rwanda that has been revived, albeit with recent controversy, with the aims of prosecuting genocide suspects. Approximately 120,000 genocide suspects had been detained in jails around the country when gacaca was inaugurated. The process was intended to begin the reconstruction of national unity and to ensure that the justice mechanisms of Rwanda would be able to handle the large caseload. Furthermore, in contrast to the International Criminal Tribunal for Rwanda, which seems distant to many Rwandans, the Gacaca process would, it was hoped, mobilise the people and revitalize parts of the Rwandan cultural heritage. Gacaca is a unique judicial experiment, which may provide a good example for other African countries.
Nine judges, elected by their community, decide the case of an accused who has come forth and confessed to committing crimes during the genocide. Their task is to listen to anyone from the village who saw what this prisoner did, to hear from the victims’ families of their pain after losing loved ones and for the nine judges to decide in the case. Like the TRC in South Africa, the success of the gacaca tribunal in Rwanda is due to its reflection of historical community values, and in this case, processes.
The Former Yugoslavia
The International Criminal Tribunal for the former Yugoslavia (ICTY) was created in 1993 by the United Nations Security Council to prosecute and adjudicate war crimes, crimes against humanity and genocide committed in the territory of the former Yugoslavia on or after January 1991. To date, the tribunal has indicted a total of 161 persons, proceedings have been concluded against 126 persons, and proceedings are ongoing for 35 accused. The Tribunal’s judgements have created a shared historical record, combating denial and attempts at revisionism.
In the former Yugoslavia, recognition that the ICTY had a limited ability to create a lasting peace led to popular support for a truth and reconciliation commission (though a TRC was ultimately not established), and a prioritization of the work of national courts, which are better equipped to reconstruct a national identity and promote peace.
As international tribunals reach the time limits of their mandates, national courts are undergoing capacity-building to handle the remaining case load of the tribunals. The Court of Bosnia and Herzegovina is now the busiest war crimes court in the world and continually receives case referrals from the ICTY. Rwanda's national courts are also receiving case referrals and support for case referrals from the ICTR.
Can These Approaches Work Together? Should They?
In post-conflict societies, there is often a large “impunity gap.” This occurs when justice mechanisms were destroyed during the conflict, rendering a nation incapable of prosecuting persons who violated international law. There is a move towards comprehensive, holistic policies to promote peace and justice that include the establishment of complementary justice initiatives. The 2004 United Nations Secretary-General’s report states that “it is now generally recognized that truth commissions can be a positive complement to criminal tribunals.”
This has been the case in Rwanda and the former Yugoslavia, as well as Argentina, Peru, Timor-Leste and Sierra Leone. In the experiences of these countries, truth commissions have covered context, the responsibilities of groups, heard a broad cross-section of victims, and held accountable individuals who cannot be held to account through the judicial system, such as child soldiers, beneficiaries and bystanders, and serve as sites for reconciliation.
Meanwhile, international tribunals uncover information that the perpetrators of international crimes would not volunteer, punish those most responsible for violations of international law, and create secure communities
In Peru, an alternative cooperative mechanism in transitional justice was used to restore national unity. Over its 20 year civil war, nearly 70,000 Peruvians were killed or displaced –mostly indigenous people who were caught in the cross-fire between guerillas and government soldiers.
Together with the Truth and Reconciliation Commission, the cultural group Yuyachkani performed outreach work in communities where public hearings were to be convened by the Commission to use the power of theater and ritual to reconstruct and remember and begin to heal the traumas of the war. These performances transformed public spaces into places for ritual reflection and community healing. They also brought the stories of the indigenous communities to the capital city, Lima, for reflection by members of the elite class.
While these justice mechanisms attempt to address the threat of impunity for international crimes, other post-conflict policies may be necessary to lessen ethnic tensions and moderate ethnic divisions in post-conflict societies. Several examples demonstrate this shortcoming. In the Bosnian Federation, 34 schools are segregated by religion. In Rwanda, tensions continue to exist in inter-ethnic romantic relationships.
The strengths and challenges of post-conflict justice mechanisms wil be explored further at the “Just Performance: Enacting Justice in the Wake of Violence” symposium. We invite you to join us to continue exploring the ethical issues that arise in this context, and to share your thoughts with us on our Facebook page.
Have suggestions for additional content that looks at the ethical issues surrounding seeking justice after war crimes, genocide, and crimes against humanity? Let us know:
- Comment on this "Ethical Inquiry" on the International Center for Ethics, Justice and Public Life's Facebook page.
- Send an email.
- And follow the Ethics Center on Twitter: @EthicsBrandeis.
This installment of "Ethical Inquiry" was researched and written by Kate Alexander ’12, a member of the Spring 2011 Ethics Center Leadership Council (ECLC). Read more from Kate on the ECLC's blog, "Exploring Ethics."