Africa, Europe, Headlines, Human Rights

Q&A: 'No Peace Without Justice'

Interview with human rights promoter Dorota Gierycz

OSLO, Jul 16 2008 (IPS) - In the aftermath of massive human rights abuses such as the Srebenica massacre, the Rwanda genocide, or in Liberia and northern Uganda, the search for justice and reconciliation can be a controversial and dangerous business.

Atrocities in places such as Africa and the Balkans have increasingly put the focus on transitional justice, a range of approaches to address past massive human rights violations, that includes international tribunals, reconciliation commissions and truth-seeking measures.

While transitional justice may be necessary and important, judicial approaches have been accused of endangering fragile peace processes by threatening the perpetrators, while some fear that non-judicial means let murderers get away.

Transitional justice approaches are divided into judicial and non-judicial bodies. Judicial approaches include permanent bodies such as the International Criminal Court (ICC), ad-hoc bodies such as criminal tribunals for former Yugoslavia and Rwanda, as well as hybrid local and international courts as in Sierra Leone.

Non-judicial approaches are dominated by Truth and Reconciliation Commissions (TRCs), for instance in South Africa, that focus on understanding the conflict and on reconciling victims and perpetrators. Transitional justice also includes institutional reforms, as of the judicial and security sectors.

In Liberia a TRC has been employed, as well as judicial and security sector reform, in the search for justice and reconciliation following that country's brutal civil war. IPS correspondent Tarjei Olsen spoke to Dorota Gierycz, the former representative of the U.N. high commissioner for human rights in Liberia, about her experiences with transitional justice and lessons learned. Gierycz has just written a working paper on transitional justice as visiting researcher at the Norwegian Institute of International Affairs (NUPI).

IPS: What does transitional justice mean to you, and what did you learn from Liberia?

Dorota Gierycz: These are situations where, on the one hand, there is a desperate need for a new beginning, and I believe that this is only possible when you also assess what happened and why it happened. This is why the question of justice, and therefore of allowing societies to move on, comes into the picture.

On the other hand this is a very controversial issue, because some very traditional approaches to peace building are that 'ok, we have a fragile peace, and if we start talking about the past, if we start looking into causes and talking about crimes which were committed, it will probably hamper reconciliation.' I am of a different opinion, because I believe that yes, there is a very difficult initial period when there is this kind of tension between justice and peace, but in the long run there can be no peace without justice, and if we just keep pushing things under the rug there will be no room for genuine understanding and consolidation of the society and democracy.

Transitional justice as a principle is a good principle, but it can go both ways depending on how it is applied in practice. I think we should really do our best to help transitional justice, both as a concept and as an institution, to help and not to divide.

IPS: Are TRCs too soft on the perpetrators of atrocities by relying more on public confessions and on reconciliation than on judicial punishment such as imprisonment?

Dorota Gierycz: I think that there is a misunderstanding here, because the TRC with which I was involved in Liberia explicitly mandated that grave violations of human rights – genocide, war crimes, and crimes against humanity – are excluded from any future amnesty. With the ICC deciding on doctrine, these categories of crimes are practically excluded from amnesties. The cases of Milosevic and of Charles Taylor show that the general international rules are still applied. (Former Yugoslav president Slobodan Milosevic was prosecuted at the ICC following the Bosnia and Kosovo conflicts, but died of natural causes before the end of the proceedings. Former Liberian president Charles Taylor is currently facing prosecution by the Special Court for Sierra Leone for his alleged role in the civil war there.)

IPS: What about the opposite accusation, that judicial proceedings risk reigniting conflicts? Take northern Uganda – the ICC is refusing to drop its war crimes charges against the leaders of the rebel Lords Resistance Army even though they are refusing to give themselves up unless the ICC does so.

DG: Look, for me this is where we started our discussion. There is a kind of tension, but I personally believe that there are certain very basic principles which are included in human rights standards, and which everybody in a way accepts because all these countries are members of the U.N. I think it is increasingly understood and felt that there are certain crimes which go beyond what can be forgiven and forgotten, because it would be very difficult for people on the ground to accept it.

I think there are some let's say lower crimes – during the war people are killing each other, it's tragic – but I still think that these sorts of crimes can be much more a subject of forgiveness. But when you get a situation where somebody is hijacking the country or hijacking a group and committing systematic atrocities and abuses against local populations, then I think that that should be a matter for the ICC. Justice should be delivered; these perpetrators should not be forgiven like those of some so-to-say smaller crimes.

And I have doubts as to whether it really is the people on the ground that want the perpetrators of atrocities to be forgiven. Who is speaking on behalf of these people? Did anyone really talk to them? Are people on the ground in northern Uganda free to express their views, or do they fear that the warlords will be back and that they will be punished? In Liberia people were saying that if Charles Taylor was apprehended, people would rise up against it and there would be a security threat, but it never happened. I have no proof or indication that they were anything but glad that Charles Taylor was apprehended.

IPS: But reports from northern Uganda indicate that at least some of the local populations want the ICC to pull out, because they are afraid that if it does not then the conflict will continue as the Lord's Resistance Army leaders will not give themselves up?

DG: But you see this is giving in. This is because of brute force and not because of conviction. Yes it is a difficult aspect, but I think that in a way it confirms my point. For example, in Liberia some people that were alleged to have committed war crimes were elected to the parliament, which I think is the same mechanism of force and not conviction. But the people who elected them were very happy that Charles Taylor was arrested because the 'danger' was removed. So when it comes to northern Uganda I think that we can only see how people feel about it when the 'danger' is removed. Otherwise it's a survival mechanism, which of course is natural if people are oppressed for years – they have to survive.

IPS: Would you say that the requirements for successful transitional justice programmes are different in different places?

DG: Yes. One of my conclusions is that we really have to go case by case. For instance, when is a TRC needed and which kind? Or is it a tribunal? Is it a national tribunal or a mixed tribunal? Should it be the ICC? At which point during the conclusion of the conflict should it be established? These sorts of evaluations are very important when you work in the field.

IPS: Are there enough of these local evaluations, or is there too much reliance on general blueprints?

DG: There is a lot of descriptive work in this area but not so many analytical pieces based on analysis of very concrete cases. I would like to see a few cases very thoroughly analysed to see what worked and what didn't work. For example, if we had had some very practically formulated conclusions from Sierra Leone, it would have helped my colleagues and I very much in Liberia when we were dealing with the TRC.

IPS: Who should do these analyses and with whom?

DG: It should be independent academic institutions, because all of us, the courts, the commissions, the U.N., we are part of the structure. There should be very independent assessments based on very thorough discussions with all stakeholders – the U.N., the courts or commissions, and very much the civil society. Not only civil society elites but across the board.

IPS: Is it important to involve civil society?

DG: Yes, I think so. In general there is insufficient involvement of civil society, meaning the majority of societies, which in many countries are people with a very low level of education, who are far from the cities, far from the capitals, and to whom internationals and not even local elites normally reach out. It's very easy to talk English with somebody who is sitting in the capital, instead of going to the hinterland where there are no roads and no hotels, where people don't speak English and they are illiterate. But that doesn't mean that they don't sometimes have even better conclusions and more realistic approaches.

IPS: What about the U.N. headquarters in New York? Did they give you enough freedom to operate and to adapt the transitional justice approach in Liberia?

DG: You know, I don't think that cooperation with U.N. headquarters is an issue. In general it's a question of these experiences being relatively new. For example, in Liberia there was a very clear time frame coming from the Accra peace agreement concluding the war. In a way it was positive that the question of reconciliation was included in the agreement, but of course it put a straitjacket on everybody because you needed a TRC within a certain very limited time frame, and that time frame didn't allow for a really broad dialogue.

I think that all these very concrete provisions and deadlines should be decided in the next phase. It's good that such peace agreements conclude that there should be a transitional justice mechanism looking into atrocities of the past and into how a repetition can be avoided, but the details should be decided on a case-by-case basis. These sorts of things weren't thought through in Accra – the main concern was to stop the killing and shooting and reach peace.

IPS: We have talked a lot about TRCs, but I believe transitional justice also refers to broader reforms, such as of the security sector and judicial system?

DG: I think your point is absolutely valid and this is also the position of the U.N. – that all future reconciliation and democracy building requires reforms of the judicial system, requires building a very solid rule of law, and with the rule of law we include the judiciary, we include security, police, penitentiary services, and so on and so forth.

IPS: What is most difficult?

DG: I personally believe that the transformation to a modern judiciary based on modern human rights principles is the most complicated issue. Normally in countries like Liberia it's not only that there are no judges, but those who are qualified judges before the conflict leave, while others become compromised by working with compromised regimes. And during the conflict of course there were no new graduates. So I think there is an obvious gap in terms of skills, and there is no way that you can quickly train somebody to become a judge.

Because of all this I believe that rebuilding the judiciary, both in terms of legal reform – in many of these countries you still have a conflict between statutory law and traditional customary law, and customary law is often against international human rights standards, so this is additional issue – combined with reform of the judiciary is probably the most challenging issue. I'm not saying that police and security is easy, but I think it's something which can be more easily achieved within a limited time frame.

IPS: In conclusion, would you say that the transitional justice system has worked and is working in Liberia?

DG: I think that we have to qualify it. Generally speaking Liberia is making tremendous headway in terms of peace building and normalisation. However, within this context I would say that legal reform and the rule of law are the weak points. For instance, legal reform is something which should already have happened, because Liberia is a party to all international human rights agreements. Therefore it should adhere to international standards internally, and this is not happening.

IPS: Can a country like Liberia be expected to achieve this in such a short timeframe?

DG: No, of course not. But you know, don't ratify it if you cannot yet implement it. It's a question of delivery. And that's a separate discussion – there are certain issues which can be addressed very quickly, and there are certain issues which require time. But generally the rule of law is the weak point.