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Heyes, Luc --- "The Role of Traditional Justice and Reconciliation Mechanisms in Societies Emerging from a Destructive Conflict" [2006] HRightsDef 24; (2006) 15(3) Human Rights Defender 13

The Role of Traditional Justice & Reconciliation Mechanisms in Societies Emerging from a Destructive Conflict

Luc Huyse

During the last 50 years of the 20th century, the world witnessed approximately 130 civil wars, a number of genocides and several brutal dictatorships. Many of these devastating conflicts and regimes have now come to an end. However a very complex agenda arose in their aftermath: disarming rebel movements, reorganising the army, guaranteeing a minimal degree of physical security, rebuilding infrastructure, reconstructing the economy, stabilizing the currency, reviving the civil service, establishing a non-partisan judiciary, organizing democratic elections, and so on. There is one further point on the transition agenda of utmost importance with regard to the introduction or re-introduction of a human rights culture: how to deal with those who committed grave human rights abuses. Bloody conflicts and oppression may return if this issue is not tackled in a productive and meaningful way.

Two periods

From the end of the 1940s to the middle of the 1980s, countries responded to this last question by distancing themselves from the painful legacy of civil war and repression. Sometimes this policy took the appearance of a self-imposed silence, as was the case in post-Khmer rouge Cambodia. Elsewhere amnesia was forced upon the population, as in Spain after the demise of the Franco regime. Or impunity was established through formal amnesty legislation: Pinochet’s Chile is a good example in this regard. Thus, the dominant strategy was to close the books.

This response is quite surprising. In the immediate post-World War II context the emphasis had been on accountability. A legal foundation was laid for the fight against impunity in the form of the genocide convention of 1948 and the four Geneva conventions of 1949. The tribunals of Nuremberg and Tokyo tried the leaders of the wartime German and Japanese governments. Other, mainly national courts also dealt with thousands of perpetrators of war crimes. But this trend towards greater accountability for human rights crimes was not continued in the years that followed. Silence, amnesia and amnesty were the rule, with the trials of the junta leaders in Greece in 1974 a notable exception.

A major policy shift, both morally and politically grounded, occurred from the middle of the 1980s. The global growth of a human rights culture blossomed into a new, now much wider fight against impunity. International agencies such as the UN and the Inter-American Human Rights Court as well as large human rights NGOs co-operated to develop both the norm and practice of a duty to prosecute crimes against humanity, genocide and war crimes. This in turn resulted in the establishment of the ad hoc tribunals of The Hague (ICTY) and Arusha (ICTR) and of the International Criminal Court (ICC), and in the gradual spread of the principle of universal jurisdiction. A summary of the arguments that underscore the choice for retributive justice underpinning these initiatives can be found in Box 1 below.

Why retributive justice?

  • Avoid unbridled revenge
  • Protect against return to power of perpetrators
  • Fulfil an obligation to the victims
  • Individualise guilt
  • It is an international law-based duty
  • No peace without justice
  • Strengthen legitimacy and the process of democratisation
  • Break the cycle of impunity
Box 1

Concurrently, however, questions were asked - and are still being asked - about the applicability of systematic prosecutions in contexts where regime change is an extremely delicate and/or complex operation. Local political and civil society leaders point to the many political, social, economic and cultural contingencies that in some instances may make it almost impossible for their societies to fulfil the ‘duty to prosecute’. Their plea for a certain degree of flexibility in this regard is based on a variety of arguments, as is demonstrated in Box 2.

Retributive justice: shortcomings and risks in times of transition

Practicalities
  • Evidence may have been destroyed
  • The criminal law system may be in shock or crippled
  • The judiciary is not adapted to handling largescale atrocities
Political, social, cultural shortcomings and risks
  • Trials of administrative and managerial staff may have negative effects on reconstruction
  • Other points on the transition agenda are more important and/or more urgent
  • Risk of destabilising a fragile peace (because of delicate post-conflict balance of power)
  • Prosecutions are perpetrator-oriented, not victimoriented
  • Trials identify individual guilt, not patterns in atrocities
  • Criminal courts restrict the flow of information
  • Trials may contradict the culture of a post-conflict society
Box 2.

The last point on the list is closely related to the discussion on the role of traditional justice mechanisms, as will be demonstrated later in this article. Desmond Tutu, Chairperson of the South African Truth and Reconciliation Commission (TRC), argues that retributive justice is not characteristic of traditional African jurisprudence. It is, he contends, too impersonal and involves too little consideration for the victims. Rather, the African view of justice is aimed at ‘the healing of breaches, the redressing of imbalances, the restoration of broken relationships. This kind of justice seeks to rehabilitate both the victim and the perpetrator, who should be given the opportunity to be reintegrated into the community he or she has injured by his or her offence.’ (Tutu, 1999: 51-52)

Doubts about the use of trials lead to a search for alternative and/or complimentary mechanisms to avoid the dangers of too much and of too little justice. The South African TRC, with its principle of amnesty for truth, has been a turning point. Other strategies require the deployment of a combination of various tools: conditional amnesty, vetting or lustration, a truth commission, or a few token trials. What we thus witness is the domestic appropriation of previously existing models of dealing with a painful past, with the aim of taking into account the numerous contingencies that trouble transitional societies. The result is the move from a de facto dichotomy (amnesty or trials) to multiple conceptions of justice (state and nonstate instruments; legal, semi-legal and non-legal techniques).

As part of this important development, some postconflict societies have turned their attention to the Traditional Justice & Reconciliation Mechanisms

“The end of the civil war in Mozambique...was followed by a general amnesty. Such a policy, however, shifts the burden of the past to the victims”

legacy of indigenous mechanisms of dispute settlement and reconciliation. The argument is that traditional and informal justice systems may be adopted or adapted to develop a more appropriate response to a history of civil war and oppression.

Examples of local responses to dealing with postconflict crimes

In many societies on the African and Asian continent, such justice systems are or have been at work. But only in a very limited number of cases have they been explicitly mobilised to deal with crimes against humanity. The most ambitious operation so far is the remodelling of the gacaca tribunals in Rwanda with the aims of speeding up the prosecution of suspected perpetrators of the 1994 genocide, increasing the participation of the population, and intro¬ducing elements of mediation and reconciliation into the process. In its original format a gacaca tribunal, composed of ‘wise men’, is a grass root court where relatively small crimes and conflicts are discussed. In its modern, state-driven form it has become the nucleus of a gigantic operation with more than 200 000 locally elected lay judges managing some 12 000 courts at the level of the ‘cell’ (the smallest administrative unit) and the ‘sector’. This policy has already been confronted with major problems of a practical and political nature.

Timor Leste has brought another example of a formal introduction of informal justice into a national policy when dealing with a painful past. The Commission for Reception, Truth and Reconciliation, created in late 2001, has sought to achieve the objective of ‘reception’ or reintegration by using traditional mechanisms and by facilitating ‘community reconciliation agreements’ between the local community and the perpetrators of less serious crimes such as looting, burning and minor assault.

The end of the civil war in Mozambique, a third example, was followed by a general amnesty. Such a policy, however, shifts the burden of the past to the victims, who may remain extremely frustrated. It also creates difficult situations at the local level when offenders return to their community. Both problems have been tackled through the use of existing rituals, performed by traditional healers (called magamba) who re-enact the wartime experiences of victims and perpetrators. In the Acholi region (North Uganda) the reintegration of ex-child soldiers is facilitated by mobilising local traditions for reconciling and punishing. One is the mato oput ceremony: returning members of the Lord’s Resistance Army and their victims together drink the bitter sap of the oput tree so as to leave the sourness of the war behind them.

Strengths and weaknesses of these tools of justice

A report of Penal Reform International (2000: 126-128) lists the advantages and disadvantages of traditional and informal justice. The main strengths of such mechanisms are that they are victimoriented and community-based, that they strongly emphasise mediation and reconciliation, and that their accessibility is very high because of the use of local languages and of simple procedures. There are, however, some significant weak points. In its Dakar Declaration (September 11, 1999), the African Commission on Human and People’s Rights writes: ‘It is recognised that traditional courts are capable of playing a role in the achievement of peaceful societies and exercise authority over a significant proportion of the population of African countries. [However,] traditional courts are not exempt from the provisions of the African Charter relating to fair trial’. Rules are, indeed, very often imprecise and unwritten. Procedural safeguards may well be insufficient. Women, children and minorities often suffer due to the unequal bargaining strengths of the parties involved. Major practical shortcomings arise in the context of societies that emerge from war or severe repression. Traditional justice mechanisms are designed to deal with relatively small numbers of minor wrongdoing. Do they have the cap¬acity to restore years and sometimes decades of oppression? Can they bear the weight of the most serious crimes? Also, civil war probably destroys or vastly transforms these tools. Can they be resurrected? Can they still be called ‘traditional’?

It is much too early to come to a well-grounded evaluation of the role of traditional justice and reconciliation devices. Looking at the Mozambican experience one might conclude that such techniques are quite useful in dealing with the reintegration and reconciliation of ex-combatants and their victims. The Rwandan gacaca operation, on the other hand, is not so convincing. It would certainly be a mistake to romanticise these tools. It would be even more unwise to declare them totally unfit for use in countries that wrestle with a cruel legacy.

Luc Huyse was, until his retirement in 2000, professor of Sociology and Sociology of Law at the Leuven University Law School (Belgium). He has been a consultant to governments and NGO’s in Burundi, Ethiopia, South Africa and Zimbabwe.

References

Bloomfield, D., Barnes T., Huyse L. (eds.) (2003) Reconciliation After

Violent Conflict. A Handbook, Stockholm: IDEA.

Penal Reform International (2000) Access to Justice in Sub-Saharan

Africa. The Role of Traditional and Informal Justice Systems.

Tutu, D. (1999) No Future Without Forgiveness, Rider: London.


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