The Challenges Reparations for Mass Atrocities Present
15th February 2017
The Challenges Reparations for Mass Atrocities Present in Relation to Relevant Case Studies
Queen’s University, Belfast
Truth and Reconciliation Commissions (TRC) have been one of the mechanisms that are widely used to tackle the violation of human rights and to transition into democracy smoothly by revealing facts about what happened to victims of mass atrocities. However, is it more effective for a transitioning society to just focus on trials that emphasizes punishment or to focus on the facts of mass atrocities that victim might find closure? I hypothesize that ideally; both aspects should be focused on in order to reach a desirable outcome. But following recent development in international criminal law, it is increasingly difficult for both approaches to work complimentarily.
Mass atrocity crimes refer to the three legally defined international crimes: genocide, crimes against humanity and war crimes. These are international crimes and that are so egregious that it affects the “core dignity of human beings”. Therefore, after mass atrocities, reparation should be at the forefront of peace building.
Perhaps one of the most cited notions of reparation is from Charzow case, that reparation should “wipe out all the consequences of the illegal act and re-establish the situation” where “the act had not been committed”. However, going back to the original situation is impossible so reparation should focus on rebuilding and healing divided societies to achieve sustainable peace.
“Healing involves a long and painful journey, addressing the pain and suffering of victims, understanding the motivations of offenders, bringing together divided communities, trying to find a path to justice and ultimately peace.” – Desmond Tutu
We know that transitional justice in a post-conflict society is not a linear process. According to many victims, justice is a precondition for peace but it manifests in many forms. In Dr. Wendy Lambourne’s field researches in countries like Cambodia, Sierra Leone and East Timor, revealed that the notion of justice is different among the interviewees. “The militia who killed my brother have to go to prison”, that is justice according to a Timorese victim. “Justice is not only punishment of a criminal… it is also equity of distribution of resources and wealth of the nation”, a Cambodian interviewee answered. “Having a good strong political leader who is not bias and talk straight” is justice, according to a Sierra Leonean.
The first part of this articles dealt with advantages and disadvantages of retributive justice and restorative justice. Then the question of whether retributive justice works better than restorative justice will be discussed. I concluded that elements from both retributive and restorative justice need to be present, subject to the consensus of the people, for a smooth and peaceful transition. The second part of the article dealt with the legality issue of immunity and amnesty under international law. In terms of immunity, I concluded that the Rome Statute is clear on the issue of legality for State Parties and the international norm today does not extend immunity to core international crimes. In terms of amnesty, although the Rome Statue is silent on the legality of amnesty, developments on international criminal law suggests that amnesty should not be extended to cover core international crimes.
Justice is often thought in terms of retributive justice. Retributive justice theory considers that punishment is the best and morally acceptable response to crime. It focuses on the need to criminally prosecute perpetrators of human rights abuse and has been widely promoted as the main mechanism for transitional justice. Article I of the Convention on the Prevention and Punishment of the Crime of Genocide acknowledged that genocide is a crime under international law and states have the obligation to prevent and punish perpetrators. The Preamble of the Rome Statute highlighted the need to put an end to impunity for the “most serious crimes of concern to the international community”. Victims also have the right to seek redress from national tribunals for violation of fundamental rights.
Domestic prosecution, especially in post conflict society is necessary in re-establishing the rule of law and for the people to regain trust in their own judicial system and government, because it is the government’s commitment to accountability, which may not exist during the conflict. It also acts as deterrence for future acts of violence, by sending a clear message addressing the issue of impunity.
However, it is important to note that in post conflict society, the rule of law might not exist. An authoritarian regime is often reflected in the judicial system. The courts are usually politicized, inefficient and have little independence. It may have stopped during extreme violence or it may be so corrupt that it supported the officials who carried out human rights abuses. This pose a huge problem as the purpose of the courts is to hold perpetrators accountable and when courts are unable to fulfill this, it violates the right to free and fair trial. Judicial reform is needed to rebuild the rule of law but it is a long, arduous and expensive process, which many post conflict countries simply could not afford. For example, after the conflict in East Timor and when the UNTAET arrived, there were only ten trained lawyers who remained in the country and none of them have experience in being a judge or prosecutor. They were left with the impossible task of interpreting Indonesian penal code through the lens of international human rights standards. Even when UNTAET left, the judges appointed lack training and coordination. Some took a short training in Australia, and Indonesia while some took a separate training program in Portugal. By 2003, a total backlog of 3,197 cases were recorded by the Office of the Prosecutor General and in 2005, all judges were dismissed by the Timor-Leste government for failing government capacity tests.
The retributive approach can be perceived as equating criminal punishment with vindictiveness and vengeance instead of focusing on reconstruction of society. As former deputy president of South Africa, Thabo Mbeki recalled, initially ANC leaders perception of justice was to “catch the bastards and hang them”. He also noted that if this approach had been taken, South Africa “would never have undergone the peaceful change.” Trials have been used in the past by new regime as a weapon to legitimize its presence and silence its enemies, so called “victor’s justice”. On the 11th May 2016, the head of the Jamaat-e-Islami party, Motiur Rahman Nizami was executed for war crimes committed during the 1971 liberation war in Bangladesh. However, the ICT of Bangladesh have been criticized by human rights organizations like No Peace Without Justice as a “weapon of politically influenced revenge whose real aim is to target the political opposition” and Human Rights Watch expressed concerns of the proceedings meeting fair trial standard when Nizami was only allowed four defense witnesses and was unable to challenge prosecution witness when their testimony had been allegedly be inconsistent. Trials in this instance failed to heal and reconcile divided communities as thousands of police were deployed after Jemaat-e-Islami called for protest of the execution.
Restorative justice focuses on repairing individual, relational and social harm caused by a crime by involving all parties, victims and perpetrators to consider the appropriate outcomes. It recognizes victim’s right to have crimes acknowledge but also the right of perpetrators to reintegrate into the community. The use of Truth Commission has been one of the most promoted mechanism for restorative justice. Desmond Tutu referred the South African Truth and Reconciliation Commission (TRC) as restorative justice, which concerned less about punishment and more on restoring broken relationships through healing, harmony and reconciliation.
The reason for the establishment of a Truth Commission like the South Africa TRC is to give a “complete picture of… the causes, nature and extent of the gross human rights violation” including the perspective of the victims, motives of perpetrators by holding public hearing and conducting investigation. Often victims need to know what happened to them and their loved ones in order to have peace and closure, which will eventually lead to reconciliation after violence.
“No government can forgive. No commission can forgive. They don’t know my pain… only I can forgive and I must know before I can forgive”, a widow testified at TRC amnesty hearing in South Africa.
The goal of TRC to reconcile divided society by seeking “truth” but its credibility and reliability can be challenged. It is very common for people to develop post-traumatic stress disorder (PTSD) or acute stress disorder (ASD) after a traumatic event. For example, a survey showed that a year after the Rwandan genocide, 2/3 of children and adolescent survivors probably had post-traumatic stress disorder and another survey showed 24.8% of Rwandan respondents met symptom criteria for PTSD. It is well documented that memories of the traumatic event of PTSD sufferers tend to be “incomplete and fragmented” where “only parts… may be accessible, and different parts on different occasions”.. Because TRCs are different than courts, they do not have the same standard of proof or evidence or cross-examination to give credibility to victim’s testimony. This questions the reliableness of victim’s “truth” and it is impossible to construct a complete picture when the “truth” has been distorted, which means the mandate of TRC has failed.
TRCs do give a platform for victims to speak, to let their sufferings known, but hearings often left people at loss. Assuming that facts of what happened will lead to healing is too simplistic and untrue because “now you have to deal with the knowledge that you have”. When Marius Schoon, a South African who lost his wife and daughter because of a bomb sent by security forces, discovered the perpetrators identity, he said: “it has been anything but reconciliatory for me” and that “there is a good chance… I might actually shoot him”. He would “prefer to hate a system rather than people” and knowing that the security forces of National Party were responsible was enough for him. In the book, “Unspeakble Truths”, Hayner met with Margaret and Mandla, a mother and son from the town South of Johannesburg who survived the “night vigil massacre”. They told their story before the TRC public hearing and stated that for her, her life has deteriorated since the hearing, as all she can think is the day of the massacre. The risk of re-traumatizing victims when they talk about their experiences is high and the South African TRC did give this issue serious attention and hired four mental health professionals and statement-takers were given training on how to respond to signs of trauma. However, most countries that have TRC will not have the means to have psychological services and it simply is not part of their culture to seek for these services. For example, years after the war in Mozambique, there were only nineteen psychologists and one psychiatrist in the country. In Sierra Leone, only one psychologist was available after the war.
TRCs are often associated with the grant of amnesties, however, only the South African TRC had the power to grant amnesty. Other TRCs can recommend the grant of amnesty but it is not guaranteed. Amnesties are crucial to maintain a fragile peace and can be used as a bargaining chip in negotiating a peace agreement. Judge Richard Goldstone pointed out that if South Africa insisted on Nuremberg-style trials, a peaceful transition to democracy would be impossible but if apartheid government “insisted on blanket amnesty, then negotiations would have broken down”. There are numerous examples of how blanket amnesty and lack of accountability had not only failed to achieve peace but was detrimental to the prospect of a peace agreement. For example, in Sierra Leone, the worst violence against civilians, including kidnapping of UN peacekeepers and British soldiers happened after the signing of Lome Peace Agreement, which granted blanket amnesty to all combatants and collaborators. Blanket amnesty granted and the lack of accountability in Haiti actually increased the violence and human rights breaches by police, special riot police, military and paramilitary forces.
Retributive Justice vs Restorative Justice
It is important to note that the context for each armed conflict is different. The aim of transitional justice is to develop a sustainable peace so that rebuilding of society based on the rule of law is possible. For transitional justice to be effective, we need to understand the conflict and know what the people need to move on. Individual accountability is crucial but often during conflicts, more than one party will be responsible for committing atrocities. During the war in Sierra Leone, several parties, like the Revolutionary United Front (RUF), Armed Forces Revolutionary Council (AFRC), Sierra Leone Army (SLA) and Civil Defense Forces (CDF) committed atrocities. To prosecute everyone responsible for atrocities is simply impossible, given the large amount of perpetrators. Also in a long, exhausted armed conflict where each side is incapable of defeating each other, focusing only on retributive justice can be harmful as it provides no incentives for the other party to end the conflict. For example, the Colombian conflict has been going on for over 50 years. When President Juan Manuel Santos re-ran for president in 2014, his mandate was to negotiate with FARC guerrillas to end the war, whereas his opposition, Óscar Iván Zuluaga, pushed for tougher measures against FARC. President Santos received an overwhelming 50.95% of the votes, while Zuluaga received 45%. This shows Colombians are ready to compromise some justice for FARC to surrender its arms and end the conflict. Therefore, they acknowledge that amnesty will be granted to some fighters so they can reintegrate into society.
This is where TRC comes into the picture. Amnesties can act as an incentive for other perpetrators to come forward, acknowledge their responsibilities and provide “truth” that victims need like, why their loved ones were targeted, where their buried and what they did. Although reliving painful experiences can re-traumatize victims, many reported that it provided emotional relief when they were able to get together with others to talk about their experiences. Despite Mandla’s suffering, he did say that TRC public hearing was worth it and he is positive about it. Knowing the “truth” will not be beneficial for all victims but for those who feel better after giving testimonies and knowing the details of torture and killings, TRC can make a significant help. While blanket amnesty lack basis and would most likely be rejected by the people as it provides zero elements of retributive justice, a conditional amnesty that applies to the less responsible, or requires truth telling, or reduced sentences maybe more legitimate and readily accepted by the people.
An example of this hybrid between retributive justice and restorative is the South Africa TRC. The dilemma for South Africa was how to construct a “complete picture” while limiting impunity? And their solution was to reject blanket amnesty and opted for conditional amnesty. Perpetrators need to fulfil criteria before amnesty can be granted to them. These criteria includes the need to apply individually, make full disclosure of their human rights violations, attend before the Amnesty Committee hearing, which were open to public…. Although truth revealed only offered limited justice, amnesty is the price that South Africa has to pay for peace and reconciliation. The SA Reconciliation Barometer 2015 report reported that 52.2% of South Africans believe that their friends and family have experienced reconciliation since the end of apartheid and 59.2% believe that South Africans have made progress in reconciliation since the end of apartheid.
Immunity and Amnesty under International Law
The development of international criminal law since the Nuremberg Tribunal, especially with the establishment of the International Criminal Court (ICC), has been moving towards individual accountability. However, the question about whether a person can be shield from prosecution under the doctrine of immunity is often raised. International law grants immunity to certain state officials like Head of States and diplomats from jurisdiction of foreign courts. Head of State immunity that protects head of States from foreign court’s jurisdiction is a matter of customary international law, unlike Diplomatic immunity, which is set out in the Vienna Convention on Diplomatic Relations, further supported customary international law. When former head of State of Chile, Senator Pinochet came to the United Kingdom for medical treatment in 1998, Spain issued a request for his extradition, with charges of torture and conspiracy to torture. In the first instance, the Divisional Court quashed the arrest warrant because former head of State continues to enjoy immunity relating to ‘public acts’ performed during their position of head of State. Pinochet was not charged with personally torturing victims but with using the power vested in the head of State, therefore the judges considered it as an official act and not a private act, therefore Senator Pinochet was entitled to immunity as a head of State. This was appealed to the House of Lords and the decision was overturned, stating that Senator Pinochet’s immunity could not prevent his extradition for torture. One interpretation that came to this decision was based on the 1984 Torture Convention, which necessitates the element of official involvement in the crime. As Lord Millett noted, “international law cannot be supposed to have established a crime having the character of ius cogens and at the same time to have provided an immunity”. The judgment also stated that when it comes to international crimes, no immunity could exist as the obligations of the state was so strong that it overrides the customary international law – doctrine of immunity.
In light of the ICC, the doctrine of immunity can be viewed as eroding. When States become State Party to the Rome Statute, they surrendered their immunities and are obliged to cooperate with the ICC to surrender individuals under the arrest warrant. Article 27(2) of the Rome Statute clearly states that immunities attached to the official capacity of a person would not interfere the Court’s jurisdiction. However, Article 98(1) states that the ICC will not pursue the requests for surrender if it requires the State Party to act “inconsistently with its obligation under international law with respect to the State or diplomatic immunity of a person… of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity”. This two provisions seemed to contradict each other but Article 98(1) only applies in the situation where it requires a State Party to surrender a national protected by immunity of a non-State Party, as insisting the surrender of that national requires the State Party to breach its obligation to respect immunities of a non-State Party under international law.
Although Article 98(1) creates an obstacle for the ICC to exercise its jurisdiction, there are ways to circumvent it. Chapter VII of the UN Charter grants the Security Council wide discretion to carry out appropriate measures to maintain or restore international peace and security. According to Article 25 of the Charter, all UN Member States are required to carry out those measures accordingly. So the Security Council could remove personal immunity attached to the national of non-State Party or order a State to cooperate fully with the ICC through Chapter VII decisions. This overrides the immunity and obliges the State Party to surrender the individual. When the Security Council orders a non-Party State to the Rome Statute to fully cooperate, the non-Party State’s obligation will be the same as any State Party’s. In the Al Bashir case, the ICC issued arrest warrants for President Al Bashir for crimes against humanity, war crimes and genocide. When President Al Bashir visited Malawi, an ICC State Party, Malawi failed to surrender President Al Bashir. Malawi argued that Sudan is not a State Party, therefore, under Article 98(1), Malawi has the right to not surrender President Al Bashir. Sudan is a non-State Party so President Al Bashir continues to enjoy immunity. The Pre-Trial Chamber rejected Malawi’s argument, stating that the Security Council had referred the situation in Darfur to the ICC and required all states to cooperate fully, therefore, Sudan, though a non-State Party, was placed under the same obligations of a State Party.
Amnesty is usually reached through political agreements, with the aim of improving relations between the parties to ensure smooth transition to peace and stability. It ensures impunity and prevents prosecution for acts that otherwise would be criminal. Following the implementation of the Rome Statue and setting up of the ICC, the use of amnesty and TRCs to deal with violations of basic human rights have been challenged. The purpose of the Rome Statute was to address the issue of impunity so, in a sense, we are saying goodbye to TRCs by putting “people who are guilty of certain crimes in the same position as… the leaders of Germany in 1943 by demanding unconditional surrender”. However, there is not a single international treaty that bans the use of amnesty. Article 16 of the Rome Statute gives the Security Council the power to defer proceedings for 12 months by passing a resolution. This signals the acknowledgement that peace and justice do not always coincide, and when there is a clash, peace will prevail. Moreover, Article 6(5) of the Additional Protocol II to the Geneva Conventions of 1949 stated that “at the end of hostilities, the authorities in power shall… grant the broadest possible amnesty to persons who have participated in the armed conflict.”
However, Article 31(1) of the Vienna Convention on the Law of Treaties required the treaty to be “interpreted in good faith” and “in their context… in light of its object or purpose”. Additional Protocol II was created to ensure greater protection for victims of armed conflict. If it has been interpreted to justify amnesties for war crimes, it will be against the primary objective of the protocol. Moreover, the ICRC asserted that Article 6(5) was not intended to cover international crimes, despite the fact that this was not clear when the Protocol was drafted. Article 6(5) is intended to discourage prosecution under ordinary domestic criminal law for those who took part in hostilities against government but respected international humanitarian law (IHL). In an non-international armed conflict, people who fought against the government may face prosecution under national legislation even when they complied with IHL. So Article 6(5) is encouraging national authorities to grant amnesty to those who respected IHL and not to those who committed international crimes. Therefore, the grant of amnesty would not derail from the principle of accountability for core international crimes.
When Morris Kallon and Brima Bazzy Kamara, Commander of RUF and AFRC argued before the Special Court for Sierra Leone (SCSL) that Article IX of the Lome Agreement obliged the government of Sierra Leon to take no judicial action against perpetrators and collaborators, the appeal chamber of SCSL ruled that amnesties granted by Lome Peace Agreement does not bar it from exercising its jurisdiction and it is a “crystallising international norm that a government cannot grant amnesty for serious violations of crimes under international law”. It also ruled that just because the UN and other third state parties signed the agreement, it does not mean that it is an international treaty that creates obligations and states have the responsibility to not forget crimes against international law. The Human Rights Committee stated that the grant of amnesties for State officials for torture are ‘generally incompatible’ with state’s obligation to investigate, prosecute and deter human rights violations. The ICTY stated that any amnesty granted for torture would be delegitimize. In the Barrios Altos case, the Inter-American Court of Human Rights went further and prohibited all amnesty designed to remove responsibility and prevent punishment for serious human rights violations concerning non-derogable rights such as, torture, arbitrary execution and forced disappearance.
Article 17 of the Rome Statute set out instances where a case would be inadmissible before the ICC and it includes instances where a State has carried out investigation or prosecution. Amnesty, however, was not mentioned in Article 17. The term ‘investigation’ in Article 17 has been argued to include amnesties as Article 17 does not specifically state that investigation need to be criminal in nature. If amnesties are followed by inquiry like the South African TRC, that would be sufficient enough to constitute an ‘investigation’, making the case inadmissible. However, this expansive interpretation can be easily challenged as Article 17(2) of the Rome Statute clearly stated that the intention of investigation and prosecution is to bring the person responsible to justice. The Preamble of Rome Statute highlighted the issue of impunity and individual accountability signifies that the drafters intended the investigation to be criminal in nature. Since TRCs and amnesties are not criminal in nature and are widely interpreted as inconsistent with justice, it is likely that it would not constitute an ‘investigation’ under Article 17. The only way for the ICC to refrain from a case concerning the grant of amnesties for international crimes is either the deferral by the Security Council, or if the Prosecutor believes that carrying out an investigation on this particular case would not serve the interests of justice. The seriousness of the crime and interests of the victims will need to be balanced and the Pre-Trial Chamber would need to approve this.
In the first part of this article, we looked at both the advantages and disadvantages of both retributive justice and restorative justice and which works best. It is important that we do not treat armed conflicts as monolithic. Although states should strive to end impunity, it is well recognised that this hard-core stance is detrimental in achieving peace as it provides no incentive for armed groups to surrender arms and end the conflict. A hybrid system of both retributive and restorative justice can help address the issue of impunity and offer incentives for armed fighters to surrender arms and reintegrate into society. Nonetheless, the people must be willing to accept this. For example, if Colombians are not ready to compromise some form of justice in order for peace to prevail, this hybrid system would lack basis as the people would reject it.
In the second part of this article, we see the relationship between individual accountability and immunity or amnesty under international law is complex. The Rome Statute is clear that the official capacity of State Party will not bar the ICC from exercising its jurisdiction. As of March 2016, 124 states out of 193 states ratified the Rome Statute. Those 124 states are obliged to let go of the doctrine of immunity and uphold individual accountability. States that are not bound by the Rome Statue are shrouded in uncertainty. Although the Pinochet case set up the precedent for limiting immunity, it is only confined to the Torture Convention. Since ongoing developments in international criminal law are moving towards ending impunity, immunity can be seen as not extending to core international crimes. For the use of amnesty for international crimes, although there are some arguments that supports this, those arguments tend to be weak and are easily countered by the numerous conventions like the Geneva Conventions and Torture Convention that imposed a universal jurisdiction. Although a complete prohibition as seen in the Barrios Altos case have not emerge as the case has not been adopted by other international courts, the current position on amnesties under international law can be seen as not extending to core international crimes.
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