What do we mean by ‘Justice’ and ‘Accountability’?

(This post has been cross-posted at ‘Transitional Justice Forum’)

Two of the key watchwords used by people who argue for war-crimes
prosecutions in the aftermath of atrocity are the need for “justice”
and “accountability.”  Yet it seems to me that many of these
people construe both these concepts in a narrow and essentially
backward-looking way that often has the effect of keeping people in
communities that are struggling to escape from very serious recent, or
even ongoing, political conflict mired in the grievances and
blame-games of the past rather than investing their energies in
figuring out how to build a rule-of-law-resecting political system
going forward and then working together to build it.

This is one of the major conclusions I have reached after reflecting
deeply on the findings of my recent book Amnesty After Atrocity?: Healing Nations
after Genocide and War Crimes.  In the book I compared
the
effectiveness of the policies that three sub-Saharan countries adopted
at the point, in the early 1990s, when they were trying to bring to an
end long-running political conflicts that had been marked by the
widespread commission of very grave atrocities.  The three
countries were Mozambique, whose two major political movements in late
1992 concluded a General Peace Agreement (GPA) that ended the civil war
that had beset their country since 1977;  South Africa, whose
major political movements agreed on the holding, in April 1994, of the
country’s first-ever one-person-one-vote democratic election, bringing
to an end 40 years of apartheid and 350 strife-torn years of colonial
rule; and Rwanda, where in July-August 1994 the Rwandan Patriotic
Front (RPF) won a decisive battlefield victory that brought to an end
four
years of armed civil conflict that culminated in the three months of
the anti-Tutsi genocide committed by their ‘Hutu Power’ opponents.

As each of those conflicts came to an end (or, more realistically, a
conflict termination ‘opportunity’), these countries’ new,
post-settlement rulers each pursued a very different approach to the
challenge of dealing with the legacies of the recent atrocities. 
In Rwanda, both the national government and the international community
pursued policies dominated by the need for war-crimes
prosecutions.  In Mozambqiue, the post-GPA government was bound by
one of the provisions of the GPA that stipulated that a blanket amnesty
be granted to all who had committed criminal acts during the civil
war.  Instead of launching any war-related prosecutions, the
government focused on disarming and demobilizing as many as possible of
the former combatants from both sides and reintegrating them as quickly
as possible into normal civilian life.  This policy, known as
‘DDR’ in standard U.N. jargon, was enthusiastically supported by the
international community which underwrote most of the funding needed for
it.  In South Africa, the post-democratization government was
similarly bound by an agreement concluded during the pre-settlement
negotiations that promised that an amnesty would be provided to all who
had committed criminal acts during the conflict.  In South
Africa’s case, subsequent legislation spelled out that these amnesties,
and the resulting immunity from criminal prosecution, would be offered
only to those who individually applied for them to a special committee
that was part of the country’s post-apartheid Truth and Reconciliation
Commission (TRC), and then only if they could satisfy that committee
that (1) those acts had been been politically motivated, and (2) they
had also shared fully with the committee everything they knew about
such politically motivated criminal acts committed by themselves or
others during the apartheid era.  So the deal there was amnesty in
return for truth-telling.

In my book I examined these varying approaches to dealing with the
perpetrators of past atrocities.  In addition, since I was doing
this work some dozen years after those respective political
transitions, I sought to to understand and analyze the effectiveness of
those approaches over those crucial post-conflict years.  One
early challenge I came up against was to enquire: effectiveness at
doing what? 
Now, I know that many lawyers and legal theorists are reluctant to
apply extrinsic yardsticks to the work of juridical institutions, which
they hold somehow to exist in a rarefied zone of pure deontology far
from the grimy world of politics or history.  But for my part,
since I am a long-time participant in the international human-rights
movement, I would hope at the very least that the policies adopted by
the government of any country still reeling from a period of widespread
atrocity commission would lead to a measurable and sustained
improvement in the rule of law situation within that country. 

As it happens, there is an institution in New York City that, on a
world-wide, country-by-country basis measures this every year. 
This is Freedom House, which each year assesses each
country on a two-headed scale, giving it one number for “political
rights” and another for “civil liberties”.  It is a very
specialized way of ranking.  The best score a country can win is
“1; 1”, and the worst is “7; 7”; therefore, there are potentially
twelve total intervals of variability between the top score and the
bottom score. I checked the Freedom House rankings for the the three
countries I had studied, for the years 1994 and 2006 (and for several years between), and Idiscovered the
following:

Among the components of the “political rights” situation inside each
country that I was able to examine in some detail was the fact that, by
2006, South Africa and Mozambique had each been able to hold three
rounds of national elections that outside observers had judged to be
essentially free and fair.  (Mozamabique had a little more trouble
organizing demonstrably fair elections at the provincial level, but was
able to pull that off in, I think, 2005.)  In Rwanda, meanwhile,
by 2006 the RPF’s post-genocide regime had still not been able to
organize any free and fair nationwide elections, and successive reports
by international human-rights bodies were painting a bleak situation
regarding such issues as civil liberties, the independence of the
country’s judiciary, and so on.

And all this time– until today and also for many further years into
the future– Rwanda’s citizens will continually be faced with the
challenge of delving in a detailed and public way into the terrible
events of those three months of the genocide in 1994, since the
community-level “gacaca
[ga-cha-cha] courts” that the government has established to “try” all
the less-serious crimes committed during the genocide are expected to
continue their work until  2014 or so.  The government will
also simultaneously be attempting to try thousands of the “bigger fish”
among the genocide suspects in the regular courts (and until 2008, the
UN’s special court for the 60 or so very biggest fish of all will also
be continuing its work.)  Thus, for all these many years following
the RPF’s July 1994 victory, the people of Rwanda have been forced to
re-examine, argue about in detail, and very often therefore vicariously
“re-live” all the minutest and most grisly details of the genocide.

In South Africa and Mozambique, meanwhile, almost none of that
divisive, polarizing, and frequently re-traumatizing process is
currently going on.  South Africa’s TRC had a fixed term between
1995 and 1998, though a few of the amnesty hearings dragged on after
that original stop-date.  And in Mozambique, given that a blanket
amnesty for civil-war-era crimes was embedded integrally into the GPA,
no public examination of the atrocities of those years was ever
conducted. Meanwhile, throughout all the peacemaking process both
before and after the conclusion of the GPA, churches, mosques, and the
networks of the country’s traditional healers (curandeiros/as) worked with other
institutions in society to heal survivors of the many terrible
atrocities that had been committed during the war, to resettle and
rebuild communities uprooted and torn apart by the fighting, and to
reintegrate former perpetrators into those communities.  At the
governmental and non-governmental levels, a determined efort was made
to draw a clear line under the horrendous violence of the past and to
focus the attention of the country’s war-shocked people on the tasks of
social and political reconstruction.

In both South Africa and Mozambique, an essential part of the agenda
for political reconstruction was the establishment of political systems
that actively fostered the democratic inclusion of parties advocating a
range of different views, and thus providing mechanisms other than
armed violence for the resolution of those differences.  These
newly democratic systems were designed to provide a new level of
accountability both between the elected leaders and their 
citizenries and among compatriots of the same country who espoused
widely divergent political views.

At the same time, the governments in both South Africa and Mozambique
also took numerous steps to start to meet the basic needs of their
citizens in the fields of economic and social justice.  (I note
that several well-documented surveys of the opinions of people reeling
from recent armed conflict have shown that these people tend to put
their extremely urgent needs for economic and social survival
considerably higher on their agendas than their desire for any form of
retributive justice; and often, when asked how they define the
“justice” that they cry out for, they do so in terms of having these
very urgent economic and social needs satisfactorily met.)  The
economic justice needs of the people in both these countries– and
particularly, perhaps, in South Africa– are still far from being
satisfactorily met.  But at least the post-conflict governments in
both countries have made a start on this task.  And by having a
decent measure of political and social stability, and by being able to
cut the budgetary and manpower burdens imposed by their previous levels
of  military spending to a significant degree (especially in
Mozambique), they have registered some achievements in improving the
lives of their citizens.

In Rwanda, meanwhile, not only have the government and people remained
mired in re-examining and reliving the traumas of the past, but in
addition the post-genocide government has built up a bloated military
and security apparatus that has maintained an oppressive political
system at home and has been a major participant in the waging, since
1996, of a series of wars and milirary occupations in the neighboring
Democratic Republic of Congo.  Between them, these wars in the DRC
(in which Uganda has also participated) have left an estimated four
million people dead and have ravaged areas of DRC some 16 times larger
than Rwanda itself.

Now it is hard, evidently, to draw a straight line of connection
between the RPF’s very extensive pursuit of a prosecutorial strategy at
home at home and its engagement in that series of massively lethal and
damaging foreign wars.  I can note, however, that the political
content of the prosecutorial strategy at home has been to maintain the
country’s Hutu majority population in a state of persecution, fear, and
political marginalization; while the need to combat alleged
concentrations of ‘Hutu Power’ extremists in DRC has been the main
pretext under which the RPF has maintained its bloated military
presence in the DRC.  So at the political-rhetorical level, and
perhaps also at the level of the RPF ruling groups’ own core ideology,
there is a clear link between the two.  At home as abroad, instead
of seeking an equitable and mutually respectful form of political
accomidation with opponents, the RPF’s leaders have sought to use means
of forceful coercion– including, at home, the use of its broad
strategy of prosecutions.

… In light of the above, I would like to urge my friends and
colleagues in the international human rights movement to be open to the
idea of interrogating and reframing these key concepts of “justice” and
“accountability” to which we are all so attached in a way that is
considerably more forward-looking than is generally the case
today.  As understood today, these terms have come to be
associated almost wholly with the institution of processes and
procedures that look in a specific, detailed, and often very
time-consuming way at the events of the past.  But
should they not also be applied to the need to build just and
accountable political systems
going forward?

Another related question is what should we do when a choice or a
trade-off has to be made between the requirements of the task of
winning some form of justice and accountability in the backward-looking
sense, and the task of winning it going forward?  This choice is,
it seems to me, often posed particularly starkly in countries reeling
from recent widespread political conflict.  (As an important
related matter, I note that the commission of atrocities in most or
perhaps all cases does actually require a state of continuing, violent,
inter-group conflict that  incubates,and perpetuates it. 
There
is, after all, a very solid reason why the field of atrocities
law grew out of the jurisprudence of “war crimes”…  One
important corollary of this is that truly to end the commission of
atrocities, we
need to succeed at  finding peaceful, rights-respecting ends to
situations of armed conflict.  More on this, below.)

Anyway, if we are looking at the vast majority of countries and
communities where the commission of atrocities has been widespread in
recent times we can see that these are countries that (a) may be way
down near the bottom of the per-capita income scale, and may have a
very poor or virtually non-existent infrastructure at the basic level
of a nationwide network of roads, bridges, and shool-houses, let alone
in terms of court-houses and the administrative infrastructure required
to support them, and (b) are reeling from widespread recent conflict
that has devastated much of whatever physical and institutional
infrastructure previously existed, while leaving the population further
impoverished and riven by deep social/political cleavages marked by
continuing fear and feelings of vulnerability and hostility.

What are the potential costs to such a society of investing huge
amounts of the available aid dollars, and the attention of
decision-makers at all levels, national and international, into
launching some program to enact (or exact) the kind of
backward-looking  “justice” and “accountability” that rights
activists in secure western/northern countries seem to favor?  I
would argue that, as in Rwanda– and even more so in post-invasion
Iraq!– the costs can be enormous.  Certainly, if war-crimes
courts are the chosen vehicle, then this very vulnerable population
that is emerging– as its members fervently hope– from a period of
damaging armed conflict, then the social/political cleavages that
marked that conflict will almost certainly be deepened by such 
proceedings.  And meanwhile, a significant proportion of the aid
dollars and decisionmakers’ attention that could have been invested in
the tasks of socioeconomic reconstuction that any community emerging
from chronic armed conflict so desperately needs, will be diverted
instead into the pursuit of this divisive and backward-looking
project.  (The amounts of money involved are not trivial.  By
the end of 2005, each case that the UN’s International Criminal
Tribunal for Rwanda (ICTR) had tried had cost it $42.3 million! 
Most of
the immediate beneficiaries of this spending were not Rwandan
nationals.  Many have been highly paid lawyers from high-income
countries.)

So yes, I am all for justice and accountability!  But instead of
construing these worthwhile goals in a backward-looking way, let us
reframe them in a way that as places the stress instead on building
political and social systems going forward that as far as possible
embody and ensure these ideals within these different societies. 
I would maintain, moreover, based on my own enquiries with people who
have survived periods of horrendous armed violence, including violence
that touched most of them very personally, that such survivors of
violence — please let’s not carry on infantilizing them by calling
them ‘victims’– seem overwhelmingly to prefer to focus on justice and
accountability projects going forward rather than on endlessly looking
back at a past that in all cases was very painful, and is often still
painful to remember.

And as for those other, often barely goals of the deontologists among
us– such as “giving Pinochet what he deserves”, or Joseph Kony, or
whomever– we might usefully remember some advice I heard in 2001 from
Rejoice Mabudhafasi, a Black South African woman who had suffered
considerable abuses from the apartheid government during her years as
an anti-apartheid activist, and who later became Deputy Minister for
the Environment in one of the post-democratization governments. When I
asked how she felt about the fact that the apartehid-eras torturers all
escaped punishment she said, “We can never do anything to them as
bad
as what they did to us.  It’s not in our
nature. God will deal with them. We leave that to Him.” I
heard a very similar sentiment expressed in Rwanda in 2002 by Rev.
Michel Kayetaba, a genocide survivor who by then was running a very
effective, church-based program that brought genocide survivors and the
family members of accused genocde perpetrators together in
socioeconomic rebuilding projects around the country.

Regarding the concept of accountability, there is another related
question: namely whom should we seek to have the perpetraors of former
violence be accountable to? 
Sometimes, in the west, there is an unexamined assumption that such
people should be held accountable to “the whole of humanity”, or “the
world community”– or at any rate some group that definitely includes us.  But if people
like Ms. Mabudhafasi or Rev. Kayetaba are prepared to forego attempts
to enact earthly judgments and punishments, then who are the rest of us
to insist on them?

… One final word here. On March 8th, I had the pleasure and privilege
of taking part in an excellent round-table discussion, organized here
in London by the Royal Africa Society and some other organizations, on
the topic of “The ICC, Justice Systems, and Reconciliation.”  One
of the afternoon speakers was Mariana Goetz, who is an advisor to the
ICC at the UK-based victims’ rights organization Redress. 
Previously, she has worked on the legal staffs of both the
ICTR and the Special Court for Sierra Leone; and she was part of the
team that, after the US-UK invasion of Iraq, trained the participants
in the ‘Iraqi High Court’ that tried Saddam Hussein and others. 
Ms. Goetz talked a little about the development of the concept of
victims’ rights in recent international instruments, noting that they
were adressed and defined in two UN conventions in 1985 and 2005. 
The second of those conventions dealt particularly with the rights of
“victims” under international and international humanitarian law. (See
the text of this document here. 
The list that follows is in Section IX.)

As Goetz described it, this convention describes victims as having both
procedural and substantive rights, with the latter including a “right
to reparation.”  Such reparation, she said, can have five
different elements:

1. a right to restitution of expropriated properties,
2. a right to rehabiliation, whether phsyical or psychosocial, for
   the harms done to the person,
3. a right to compensation,
4. a right to ‘satisfaction”, which may include the issuing of an
   apoligy, the building of a memorial, or other similar acts that
   symbolize reparation, and
5. a guarantee of
   non-repetition.*

Now this whole list is very interesting.  But the last item seems
extremely important to me.  For how, in practice, might the
members of the
international community best assure the “non-repetition” of acts of
atrocity in any country or community wracked by recent
atrocities?  I am strongly of the view that the best way to do
this is to help the parties to the conflict that has incubated those
atrocities to find a durable and rights-respecting peace.  And
now, this important goal of a “a guarantee of non-repetition” has been
codified as constituting one of the rights of victims/survivors of any
atrocity.

Now I know I need to do a whole lot more more to lay out my whole
argument about the relationship between violent conflict and the
commission of atrocities; and I shall try to do that as soon as I have
time.  But for now, let me just note (1) that any society,
anywhere, can always contain a certain number of individual sociopaths
or atrocity-committing mass murderers, though their number is usually
very small; but that 2) such individuals only thrive, gain social
power, and proliferate in number in circumstances in which social norms
break down under the stress of violent conflict.

When sociopaths commit their atrocities in settled societies that enjoy
a significant level of social peace, their activities can nearly always
be brought to an end through the work of a police force and the
associated criminal-justice system, which between them are capable of
protecting the rest of society from any repetition of atrocious acts by
these individuals.  But in societies wracked by violent conflict,
or in which the rule-of-law protections for the safety of ordinary
citizens are absent for other reasons, sociopathically inclined
individuals can not merely continue to enact their atrocities with a
high level of immunity from the law but are also, often, either
shielded by some branches of the public authorities or otherwise
accorded increased social power by virtue of the continuation of the
state of conflict. 

What is centrally needed, therefore, is to strengthen the ability of
society as a whole to protect itself against the repetition of such acts. 
This can be achieved in a number of different ways.  One way, in
societies that have the social and legal infrastructure needed for
this, is to take away the capacity of these individuals to commit
further outrages by incarcerating them after the holding of an
appropriate and fairly conducted criminal proceeding.  (I note
here that neither the holding of trials nor the maintaining of an
incarceration system are cost-free ventures.  The burdens they
impose on society are not only financial.  In particular, the
incarceration any person of bread-winning age affects a wide circle of
family members and dependents; and the incarceration of large numbers
of people, as in the present-day US, can exact enormous social
costs.  However, there probably are some circumstances in which
incarceration is, on balance, a helpful response.)

Another way in which a society can protect its members against the
repetition of past acts of atrocity is to remove both the motivation of
those past offenders to re-offend and, crucially, the social/political
context within which they committed their earlier offenses, and to do
this through the institution of a new, more just and acountable social
order while ensuring the integration into this new order of as many as
possible of those past offenders.

That was the path that was followed in Mozambique after the peace
agreement of 1992.  Under the terms of the GPA some 93,000 former
combatants– from both sides of the line– were given DDR packages that
gave each of them some basic living necessities, transportation to
their home communities, and a demobilization stipend that assured them
a small cash income for the next 24 months.  During that whole
process, no attempt was made to sort out former combatants who had
committed the many atrocitirs that had marked the civil war from those
who had not.  A small number of combatants from both sides were
not demobilized but were formed into a new national army that
integrated fighters from both the previous fighting forces.

In 2003, I was able to interview two men who, between them, had
presided over the military system that was responsible for the
commission ofa huge proportion of the war-time atrocities: that of the
Renamo insurgent force.  These men were Raúl Domingos, who
had been head of the Renamo military, and Hermínio Morais, head
of the Renamo Special Forces.  After the conclusion of the GPA
(which he helped negotiate), Mr. Domingos was elected to parliament on
behalf of the political party that Renamo formed after 1992.  Mr.
Morais also helped to negotiate the GPA.  After it went into
effect he stayed in the new, united armed forces as the head of its
training unit; after some years he left the military and entered law
school, and when I interviewed him he was about to qualify as a lawyer.

How do Mozambicans feel about outcomes such as these?  Nearly all
of them feel very satisfied.  They feel, moreover, that the social
order put in place after the conclusion of the GPA gives them fairly
strong protections against the repetition of the acts of barbarism
committed during the war, and they have a strong reluctance to doing
anything that might damage that social order or revive even any general
“aura” of the violence of the war years.  (Hence, they have a
generally strong reluctance to even talk about that violence, but that
is another story.)

Based on my study of the developments of the post-conflict,
post-atrocity years in these countries and elsewhere, I would say that
all the rest of us in the human rights movement need to do some drastic
rethinking of the way we look at issues of justice and accountability.

————-

*  Subsequent to writing the above, I was able to access the text
of the
U.N. General Assembly Third Committee’s document Basic
Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and
Serious Violations of International Humanitarian Law, UN doc. #
A/C.3/60/L.24 of 24 October
2005.  Article 23 states the following:

It seems evident to me that none of these tasks can be accomplished in
a situation of ongoing violent conflict.