Power Impunity Memory And Reconciliation Criminology Essay

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Some argue that truth commissions weaken the case for proper justice and that it is traded for truth, which allows people to get away with human rights violations. It is also claimed that truth commissions in some cases are intentionally deployed in order to avoid holding offenders who are responsible for a crime.

Examples of this occurred in Guetamala, where the mandate for the truth commission decided that evidence obtained could not be used in judicial terms, which raised concerns that the information could not bring about a prosecution at a later stage. This was also true for El Salvador, where an amnesty law with was implemented with the Truth Commission and in South Africa 'where justice was put up for trade ' here prosecution was dismissed if the offendor admitted to the crime being politically motivated

However this is not as straight forward case of trading truth for justice as it may seem. Reviewing the above cases there have been instances where the truth commissions have strengthened the prosecutions that eventually followed. Truth commissions have also been important in countries where the judicial system is weak, corrupt or biased and have been able to bring about accountability that sometimes courts fail in achieving such as in Uganda, Haiti and South America. The reasons can be a lack of resources or even death threats tot he judges presiding over the cases.

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Nevertheless it is important that truth commissions do not replace the proper judicial system which brings perpetrators to justice as both have different purposes, which in the past some policy makers have recommended. It is important that legal prosecutions should not be replaced, and justice shown to be done.

However many peace treaties have occurred on the basis of the close relationship of judicial and non-judicial means. At the very least, this system has helped removed perpetrators from positions of authority.

In some situations there have been blanket amnesties, but human right scholars have argued that such crimes against humanity should be prosecuted independent to any treaty. What crimes should be categorised as being unprotected by an amnesty are in some cases not clear. It is also argued that impunity will encourage further abuses.

Justice sometimes cannot be done as the judicial system may be biased in favour of the state, which itself has been responsible for the crimes as in the case of El Salvador. In the end the military received an amnesty in exchange for stepping down. This was seen in some ways as a successful outcome as a prosecution was very difficult to implement.

In Argentina the evidence from the truth commission did lead to a prosecution of Luis Moreno Ocampo. But again there were limitations put in and some of those convicted were later released by Carlos Menem. But in the case of Uganda it was deemed impossible to use the vast information they had establsished simply because they did not have the judicial infrastructure, and the psychological will to deal with such a huge volume of cases

In Uganda it was also difficult to bring cases under the theory of 'command responsibility' as it was difficult to pin point their crime. Often on paper there was enough to evict them. But they were granted bail and released, and the courts unable to put forward a case against them.

In Haiti there was a lot of information gathered through the truth commission but 'many people were not willing to risk their lives by trying to investigate, prose- cute, or stand as a witness against these still very dangerous men'

Summarise - in bullet points if you prefer - Hayner's discussion of the controversy surrounding 'naming the guilty' (pp.107-108 & 127-132).

There are two contradictory principles when the situation of 'naming the guilty' arises.

Firstly it can be argued that when there are to be no trials in a country then it is important to name names of the perpetrators. This usually occurs where the evidence against the perpetrator is overwhelming and since the judicial system cannot take account for these crimes then the truth telling process is extremely important.

However there is an argument that the accused should have the right to defend themselves. So a process which does not have the same strict laws is seen as violating the rights of those named.

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In the past it has been up to the Commissions themselves, whether they choose to do so. And not many have as there has been many disagreements between commissioners as well as others whose interests would be compromised such as Chad.

However in recent times there has been improvements as commissions have started to be explicit about their powers which has lead to some success. But this success has been limited as factors such as governmental pressure, risks to the security of witnesses or members of the commission staff or risk of revenge to those named.

Commissions also have to be careful about the reliability of their information, because even though the individuals that are named are officially not seen as liable of their crime, it does however stigmatise those individuals. Therefore it is very important that truth commissions have accurate and comprehensive information. As a result sometimes commissions have been reluctant to highlight cases as they do not have the exacting standards that are used in the court of law.

Scholars like Juan Mendes have argued that it is important to have truth commissions in countires without trials even if it oversteps its powers to do so. He argues that people are always named when they are suspects in normal criminal cases. This can contribute to opposing the impunity that perpetrators may receive. But others such as Zalaquett have argued that

" My own position about naming names is based on rights and procedure. . . . My position may be characterized as follows: official truth commis- sions may investigate moral responsibilities of governments, concen- trating on victims, which is usually the case. In some cases, as in South Africa, they may come close to touching on legal responsibilities of in- dividuals as well.

When they do concentrate on moral responsibilities, their official character, the solemnity of the whole exercise, etc., means that if they name names, the persons so named would be painted with a brush of guilt, outside due process. This is wrong in legal terms and also in moral terms. The possibilities of failure in judging individual cases outside due process are great. Second, the principle of a bilateral audience, meaning both sides have to be heard, is a sacred one. Third, in reconstructing a so- ciety after a major trauma, human rights must be upheld. This means that justice must be sought through just means. It is important that the lesson given by the precedent of truth commission work is that rights were scrupulously respected, despite the fact that others might not have respected them at all in the past.

All that having been said, if procedural safeguards like in South Africa are introduced, I have no qualms about the process. My problem is not with rights or justice. It is with easy righteousness and facile jus- tice."

Make clear notes on the relationship between 'truth commissions and the prospects for justice' (Hayner 2002, 91-106) in TWO of the following cases:

El Salvador; Argentina; Haiti; Chile; South Africa

Country 1:

Country 2:

Truth vs. justice balance

Truth vs. justice balance

Using the same TWO commissions chosen for question 2 of this response sheet, make notes on their approach to 'naming the guilty' (pp.109-127).

Country 1:

Country 2:

Approach to naming the guilty

Approach to naming the guilty

RESPONSE SHEET 2/4

Restitution and reparations

Key Reading

Unspeakable Truths, chapter 11, 'Reparations for State Crimes'

What is meant by each of the bold headings below (in this context) according to Hayner?

'Reparations' is a general term 'that encompasses a variety of types of redress, including (Hayner 2008, 171):

Restitution;

Compensation;

Rehabilitation;

Satisfaction;

and guarantees of non-repetition

RESPONSE SHEET 3/4

Frameworks and foundations of reconciliation

Key Reading

Unspeakable Truths, chapters 9 and 10

Make notes on the following points based on your reading of chapter 9:

The approaches (or absences of approaches) taken by truth commissions to the training and support of commission staff

Other operational choices of relevance to truth commissions (give examples of choices made)

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The 'things commissions can do to improve the likelihood that they will have a positive impact for individual victims' (p.153)

Make notes on the following points based on your reading of chapter 10:

What reconciliation might 'look like' (p.161)

The factors which 'encourage reconciliation' (p.163)

The 'follow-up measures' Hayner discusses (p.165)

RESPONSE SHEET 4/4

A critically informed evaluation of ONE Latin American truth commission

Starting from the bulleted headings outlined in the shaded column of the table below, provide a summary evaluation of your allocated Latin American commission. The additional information under each heading is for elaboration.

The majority of work for these evaluations will take place during preparation for the group presentations in TW5. It is therefore strongly advised that all students attend the seminars in order to carry out this work in the most efficient and effective way (i.e. through collaborative 'co-researching').

All entries to the table below are to be fully referenced (using the havard system - with a bibliography after the table). Note also that further sources (beyond Hayner) will need to be consulted. As will be explained in TW2 - students are strongly recommended to make use of the respective commission websites and the online journals available - especially Human Rights Quarterly and the International Journal of Transitional Justice.

[NOTE: The allocation of the truth commission is to be arranged by the tutor in the seminar of TW2. If for any reason you were not present, you must email h.miller@kingston.ac.uk ASAP.]

A Summary Evaluation of the [INSERT NAME] Truth Commission

Transitional Justice: conceptual perspectives

(NB: link to module learning outcomes)

Truth Commissions: practical perspectives

Human Rights

Overview of gross and serious human rights violations covered by the commission

Power

Who are the abusers and how is the abuse carried out?

Brief overview of power relations before truth commission

How was power exercised vertically, i.e. between state and society/victims?

And horizontally, i.e. between citizens?

What was extent of public support for the state/government?

Impunity

What factors support the abusers?

How can they be held accountable?

Summary assessment of the culture of impunity before truth commission

To what extent were violations backed by the laws, courts, armed-forces or other institutions?

and after the truth commission

Were there amnesties or other processes put in place, during the process of negotiating transition?

And, were the 'guilty' named? (cf. response sheet #1)

Memory and testimony

How can they be recorded; and with what evidence, and what aim?

Summary detail on methodology, staff-training, and operational choices of truth commission

Reconciliation

(How) can divided societies become whole again?

Detail on other specific interesting features of truth commission

and brief discussion of implications of these

i.e. what they meant in local context or in context of transitional justice

Analysis and critical evaluation

Summary analysis of (a) to (e) above

As noted in the Module Guide, both the reading portfolio and essay are to be submitted as one document. Therefore, please write your 2,000 word essay below.

ESSAY QUESTION: How successful have post-genocide efforts at justice and reconciliation been in either Rwanda or Cambodia? 2000 words

In 1994 Rwanda was faced with challenges on how to handle the aftermath of the genocide which had taken place between the Hutus and the Tutsis. As a result, the Gacaca trials were established to enforce justice and to achieve reconciliation. In this essay I will discuss how successful the post genocide effort was in achieving comprehensive justice and reconciliation.

After the genocide it was clear that a different approach to bring about justice and accountability was necessary; this was because "In Rwanda, a decimated judicial system had the responsibility for dealing with some 120,000 Hutu Rotting in prisons in appalling circumstances, often without proper charges. The task defied capacity. As of 2004, some 6,500 had been tried. At this rate, it was estimated, it would take two to four centuries to clear the back log." (Thompson. A, 2007:31). This lead to the re-introduction of the gacaca trials, which was in many ways a unique social experiment as it was a mix of traditional and contemporary approaches in a hope to achieve justice and reconciliation. However it is evident that people who were in charge of conducting the trials and deciding a verdict on the appellants were only trained for a week, and no trained lawyers were present. This would have an impact on the extent to which justice was achieved, as it is unlikely that a system which has inexperienced and poorly trained people could give out appropriate punishment for the crimes that had been committed. The scale of the task was so huge as the number of suspects were so high, that such important matters as properly trained officials, came to be overlooked.

The Gacaca was a cultural system that was already set up in Rwanda……….

The aim of the Gacaca trials was to try and achieve restorative justice for the victims, however the manner in which the trials were approached actually made it harder on the victims than the perpetrators as "apologizing is easier than forgiving, especially when the former brings a lighter sentence. The extent that confessions and apologies are perceived as formulaic, insincere, untruthful or callous, they only serve to reinforce the bitterness of survivors, particularly when coupled with the public expectation that survivors should offer forgiveness".(Sullivan.D,Tifft.L,2006:429) This shows that justice was not achieved effectively through the gacaca trials as perpetrators did not receive appropriate punishment, and the victims had difficulty getting over the injustice and pain they experienced.

It is clear due to the huge amount of perpetrators, and the division between the Hutus who make the majority and the Tutsis who are the minority, meant the genocide was suited for restorative justice as Rwanda had to move forward from the atrocity and try and reform society as a whole. However, "gacaca has always been an uneasy mix of restorative and retributive justice: confessions and accusations, plea-bargains and trials, forgiveness and punishment, community service and incarceration."(Sullivan.D,Tifft.L,2006:422) this means that that the right approach wasn't taken to achieve the standard of justice that was needed. It is apparent that if a clear aim to achieve restorative justice instead of a mixture of retributive and restorative justice were taken then there would be a better outcome.

It is clear gacaca has four major flaws, in the case of restorative justice "(1) it is not truly participatory; (2) it provides no compensation to victims; (3) it is 'victor's justice;' and (4) it risks imposing collective blame on the Hutu."(Sullivan.D,Tifft.L,2006:429) people who had suffered not only from being victims of the genocide, but also by reliving the tragedy when going to the gacaca trials and telling their story in order to achieve justice received no compensation which means the victims continue to suffer. In a sense it allowed the perpetrators to redeem them selves even if their apologies weren't genuine. And because only Hutus were tried it hindered reconciliation and placed a stigma on anyone who was a Hutu in Rwanda, regardless of the fact if they were a part of the genocide or not.

Some pilot studies indicated gacaca will not fulfil the success it had needed in order to truly achieve truth and reconciliation in Rwanda this is because of the "enormous difficulty of achieving truth-telling, reintegrative shaming, and reconciliation in any society recording from mass atrocity. However, it also reflects the deliberate choices of an authoritarian government whose commitment to justice and reconciliation for all Rwandans remains half hearted at best."( Sullivan.D,Tifft.L,2006:432) Therefore reconciliation and justice could not be truly achieved as people weren't admitting to their crimes, therefore bitterness continued and people were unable to be integrated back in to society. It is also clear that the Rwandan government could have done more to help this process.

In some places it is evident that the gacaca trials allowed people to talk about their experiences move towards understanding and forgiveness, however in many cases the gacaca had little positive impact on society "because of piecemeal community participation during hearings, or has aggravated people's circumstances through a lack of justice, inadequate degrees of truth and increased trauma."(Clark.P,2010:354). This implies the success of the trials were mixed however it was clear that the approach taken did not help the victims as much as it should have, and many felt like they were treated as though they just had to 'get on with it', which left them unhappy as justice was not served.

Additional initiatives were undertaken to achieve justice The United Nations who set up the International Criminal Tribunal for Rwanda that was established in Arusha. They took a different approach and focussed on the main perpetrators including Theoneste Bagosora who was named as one of the key people in instigating this genocide. He "allegedly drew up lists of those marked for death two years before the killing began. He organized militia training and made sure recruits were armed"(Time(2008)) Because people like Bagsora were tried by the UN and ICTR, it appears that justice to an extent was achieved. It was important that the main instigators of genocide were tried and charged in an official court of law receiving the appropriate sentences unlike the gacaca trials. However it was also clear that because the number of people that needed to be tried was so high it was impossible to do all trials in this manner, so justice was effective but very limited in this system. Also during these trials there was criticism that key people were left out, for example "President Paul Kagame's Rwandan Patriotic Front" (Time(2008)who it is claimed was guilty of playing a key role in the genocide.

Once justice was dealt with, the next and most challenging stage was reconciliation. Rwanda needed to some how integrate perpetrators back into the community, without condoning their previous crimes against humanity. However the treatment of prisoners and alleged perpetrators would create an impact on achieving reconciliation. It appears due to the slow progress in prosecuting such a huge number of prisoners, it "negatively affected reconciliation for both detainees and genocide survivors. As the trials are directed only at Hutus, they are viewed, at least by some, as victors' justice, thereby hampering reconciliation." (Daly.E,Sarkin.A,2007:256)

WHAT DOES THIS MEAN? The Hutus were being picked on as the tutsi's were now in charge?

As a result of the genocide a vast number of people had become displaced, and the government must deal with this issue because if people don't return to their communities they are more likely to remain in a vulnerable position and will negatively effect themselves and their families and society at large. This does not only affect the present generation but the generations to come. "Thus, finding solutions to internally displaced persons or refugees poses extreme challenges for nations (and their neighbours) but can not be avoided. Without resolving such difficulties the path to reconciliation remains fraught with obstacles" (Daly.E,Sarkin.A,2007:256) by neglecting the refugee issue, reconciliation could not be achieved as everyone needed to be re-integrated back into their communities, and efforts only seem to be made towards perpetrators and not the victims who had fled. ARE YOU SURE WHO SAID SO?

Therefore the Gacaca trials did have some positives as it allowed everyone who wished to give an insight into their own personal experience to speak out. "allowed all social groups to discuss their experience of genocide and fruitful interactions beyond gacaca. In such places, profound results including healing, forgiveness an reconciliation are certainly possible"( Clark.P,2010:354) Because the gacaca trials were held in a traditional and familiar manner to the local people, it allowed everyone to contribute if they wished to, and consequently lead to some progression towards reconciliation.

One way in which gacaca has successfully achieved its aim is by making perpetrators do community services, if offenders are seen giving back to their community they are more likely to be forgiven and they will have a much better chance in integrating back into society. "Gacaca's community service component, a crucial restorative justice element, remains stalled in the development phase.". ( Sullivan.D,Tifft.L,2006:429) However this again was not fully successful, as it was not implemented with proper care.

There were many hindrances and some small successes therefore the expectations for these trials in achieving truth, justice and reconciliation were not achieved. One of the reasons is "Public confessions do not seem to lead to 'reintegrative shaming' so far, confessions have been largely limited to the detainee population and have contained little in the way of either apology or shame. Over time, gacaca has become less participatory and more coercive. There is little prospect of Tutsi genocide survivors receiving reparation through gacaca." ( Sullivan.D,Tifft.L,2006:422). There were too many problems to address when trying to reintegrate people back into society and victims had suffered too much to achieve this, making it almost impossible to have any true reconciliation in this generation.

However there had been some attempts by the government to achieve reconciliation politically "The government has created a series of structures and institutions designed to foster reconciliation and unity, but on its own terms. Ethnicity can no longer be recognized except as a destructive aberration of the past - a radical proposition given the past century." (Thompson. A, 2007:31) It has to be acknowledged that although the government had put initiatives in place it was up to the public to accept and follow them, but in this case it is clear that they rejected them. This was so ineffective that even report of killings between the Hutus and the Tutsis are continuing to the present day. This shows that the government was not effective in enforcing laws that were there to help society and that old bitterness can override everything, even the fear of the law.

However it is important that Rwanda continues with its efforts to repair society. A way in which they can move towards both justice and reconciliation for future generations is to educate the generations to come about the atrocities that have happened because "Ignoring history leads to a collective amnesia, which is not only unhealthy for the body politic, but essentially an illusion - an unresolved past will inevitably return to haunt the citizens. The establishment of a full official account of the past is increasingly seen as an important element of a successful transition to democracy"(Sarkin.J(2001, p.143). This means that truth commissions are crucial in achieving success in justice and reconciliation for Rwanda.

In conclusion it is clear that the road to justice has been unsuccessful, for numerous reasons including the scale of the task because of the huge number of perpetrators as well as, lack of evidence, unqualified prosecutors, and an odd mix of retributive and restorative justice. Also reconciliation has been difficult to achieve as people found it hard to accept people back into society when they felt justice had not been done and offenders had not paid the penalty. Also many felt that the Hutus received an easy escape, whilst the victims received no compensation and continued to suffer. The government did not do enough to end the discrimination in society and to address the refugee situation. Despite all the failures there has been some success for example the eventual involvement of the UN to help bring about some justice, and the community service, which helped along reconciliation in some parts, also the gacaca allowed people to talk about what happened and in some communities this was a positive result.

References

Clark, P. (2010) The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda. Cambridge: Cambridge University Press.

Daly, E. Sarkin, J. (2007) Reconciliation in divided societies: finding common ground. Pennsylvania: University of Pennsylvania Press.

Dunn, M. (2007) 'How to survive Rupert Murdoch', British Journalism Review, 18(5), pp. 5-10 SwetsWise [Online]. Available at: http://www.swetswise.com (Accessed: 1 September 2009).

Hayner, P. (2000) Unspeakable Truths: confronting state terror and atrocity. London: Routledge.

Sarkin, J. (2001) 'Journal of African Law',The tension between justice and reconciliation in Rwanda: politics, human rights, due process and the role of the gacaca courts in dealing with the genocide, 45(2), pp.143-172 Journal of African Law [Online]. Avalable at: http://www.jstor.org/stable/3558953 (Accessed: April 28 2011).

Sullivan, D. Tifft, L. (2006) Handbook of restorative justice: a global perspective. Oxon: Routledge.

Thompson, A. (2007) The media and the Rwanda genocide. London: Pluto Press.

Time (2008) A Final Measure of Justice in the Rwandan Genocide. Available at: http://www.time.com/time/world/article/0,8599,1867949,00.html (Accessed: 20 April 2011)