JUSTICE AND HUMAN SECURITY IN AFRICA…By Dr. Yav Katshung Joseph

It is
important to look at their relationship to prosecutions and justice in an
immediate and historical sense. Are TRC's designed to generate more truth, more
justice, reparations, and genuine institutional reform? Or are they designed to
undermine the State’s and society’s legal, ethical and political obligations to
their people? This gives us opportunity to share views on adequate truth
commissions and their relationship with prosecutions.

II. TENSIONS BETWEEN TRUTH COMMISSIONS AND
PROSECUTIONS

Very often, when a country wishes to move from
dictatorship to democracy or from war to peace, various ways may be tried and
these include trials in an international or national court of law and
non-punitive approaches such as truth commissions. Thus, “…a country’s decisions
about how to deal with its past should depend on many things: the type of
dictatorship or war endured, the type of crimes committed, the level of societal
complicity, the nation’s political culture and history, the conditions necessary
for dictatorship to reoccur, the abruptness of the transition, and the new
democratic government’s power and resources [1].” One may adds the “interests”
of the country.

Different countries have chosen widely different
strategies to deal with the past including prosecutions in one hand and, truth
commissions and other non-punitive approaches, in the other. Although justice is
crucial after violations of human rights, it may not be possible or practical.
International tribunals are useful, but they are not the full solution. They are
hugely expensive and can try only a small group of perpetrators, the most
“responsible”. Ironically, many times, those who are tried are not the most
responsible but the most “available” in the country. Therefore, justice becomes
extremely selective and seems to be the way of granting de facto amnesty to
those who fled the country and those responsible. Then come the necessity of
other non-judicial mechanisms such as truth commissions not as a panacea for all
the challenges of transition, or an alternative, but as a complement way to be
used by broken societies, in order to bring the benefits of justice to the
victims and to the political culture.

However, this is challenging and
there are always tensions between the requirements of the criminal justice
system and those of non-punitive approaches to gross and systematic human rights
violations. Rightly, Charles Villa-Vicencio pointed out that, “the tension
between justice and reconciliation and revenge, prosecution and amnesty is
grounded as much in principled debate as in a tug-of-war between deep emotions,
unresolved memories and uncertain futures. It is a tension that is best not
collapsed into an attempted neat synthesis of a complex set of contradictions.
The contradictions need to be sustained. The demands of the one side need to
impact on the other. It is through honest encounter that opposing groups stand
the best chance of knowing that they need one another. It is then that new
possibilities begin to be imagined-and sometimes realised [2].

III. DOMESTIC TRUTH COMMISSIONS AND PROSECUTIONS:
REACHING FORWARD

Truth Commissions are established to
officially investigate and provide an accurate record of the broader pattern of
abuses committed during repression, civil war and unjust periods. There have
been more than thirty truth commissions worldwide, including in Sierra Leone,
DRC, Morocco, and more importantly South Africa. “Truth commissions today”,
according to Jose Alvarez, Professor of International Law at Columbia
University, “are inescapable tools in establishing the truth of past crimes and
a means for victim recompense and instruments to promote peace and
reconciliation.”

Most recently, the United Nations Secretary-General’s
report on “The rule of law and transitional justice in conflict and
post-conflict societies” praised them as “a potentially valuable complementary
tool in the quest for justice and reconciliation” and in “restoring public trust
in national institutions of governance [3]”. The increased interest in truth
commissions is, in part, a reflection of the limited success in judicial
approaches to accountability, and the obvious need for other measures to
recognise past wrongs and confront, punish or reform those persons and
institutions that were responsible for violations. Successful prosecutions of
perpetrators of massive atrocities have been few, as under-resourced and often
politically compromised judicial systems struggle to confront politically
contentious crimes. With an eye on building a human rights culture for the
future, many new governments have turned to mechanisms outside the judicial
system to confront, as well as learn from the horrific crimes of the past
[4].

However, a truth commission should at the same time never be
allowed to circumvent international human rights law or, more specifically, to
ignore the punitive demands of the criminal justice. Related to the South
African case, where there was a Truth and Reconciliation Commission (TRC) with a
possibility to grant a conditional amnesty [5] in exchange of a full disclosure
and shown remorse, could we say according to the Rome Statute that, the TRC
decisions or proceedings were taken for the purpose of shielding the person
concerned from criminal responsibility? One should take into account and
acknowledge that the South African TRC was democratic and genuine. The purpose
was not to shift or to hide someone or a group from prosecution. It was in the
interest of peace, reconciliation, etc. In my view and for many others, the
South African TRC was not there to shield perpetrators but to seek the truth for
national reconciliation. South Africa acted in good faith; the TRC was
established by the best efforts of negotiators to end violations of human
rights. This is justice, to my view and I may say in the interests of the entire
country/society, not in the interest of prosecuting some few and not others, and
still walk free as if they were granted de facto amnesty.

Emphasising
this argument, Juan Mendez, stated that:
“In
most parts of the world, the South African example stands out as an attempt to
achieve reconciliation and forgiveness without impunity. Others decry the fact
that most perpetrators of the worst crimes of apartheid did evade justice. In my
view, however, the South African exercise with truth, justice and reconciliation
is notable for its insistence on hearing the victims, consulting with all
members of society, allowing participation by all stakeholders, and conducting
the exercise in complete transparency. It is in this sense that the South
African example continues to inspire all those who decide to turn a page in a
country’s history without forgetting the plight of those who suffered [6].”

Therefore, we may pause with Naomi Roht-Arriaza that, if
perpetrators appear before an independent and democratic truth commission that
hears applications for conditional and accountable amnesty, they should not face
prosecution by the ICC. In this case, amnesty (conditional) is granted for the
purpose of domestic reconciliation and not to shield him/her/(the perpetrator)
from criminal prosecution [7]. However, can all truth commissions have the same
purpose of not shielding perpetrators? It is important to draw the line in order
to avoid some contradictions between truth commissions and prosecutions. The
next point will deal with that.

IV.
THE QUESTION OF ADEQUATE TRUTH COMMISSIONS IN ORDER TO COMPLY WITH INTERNATIONAL
STANDARDS

We should ask ourselves if all truth commissions
should be considered as genuine and serve the interests of the country. As we
may know, in some countries the purpose of a truth commission may be not genuine
and reasonable. This is challenging and it will be useful to deal at the
case-by-case level. Rightly, Professor James Crawford of the University of
Cambridge has said in relation to Article 17 of the Rome Statute:

“I think there is a question about truth commissions,
because you can’t say a priori which ones are a reasonable response to the
situation, and which ones are a cover-up. It’s going to require extreme care by
the prosecutor. There may be some problem there with the capacity to subvert
those processes if they are reasonable, and we’ll just have to hope that the
institutions within the court take a sensible view about it. But complementarity
extends to covering internal processes which don’t necessarily involve
prosecutions of individuals, so there’s no reason why the principle of
complementarity ought not to cover an appropriately constituted truth commission
[8]."

Moreover, Charles Villa-Vicencio, talking about truth
commissions states that: “… They demand fewer resources than courts and, if
designed properly, can provide some accountability [9].” Using the words such as
“if designed properly”, meant that we may find some not properly designed and
therefore, the need for benchmarks in order to comply with international law.
Can we say that the South African TRC was able to provide accountability and was
consistent with international law?

Despite some few critiques, the South
African TRC is internationally recognised, and has been favourably endorsed by
numerous international human rights organisations and commentators. The TRC was
passed pursuant to a valid Act of Parliament and imposes a form of public
procedure and accountability for the actions of perpetrators. It was the
country's decision in favour of peace. This is not impunity because there was
political consensus in South Africa that getting as much of the truth out as
possible and having fewer, but more effective prosecutions, was a just result.
Given that, this was what the majority of the public wanted, that is not
impunity.In this line, speaking on the relationship between the prosecutorial
mandate of the ICC and the amnesty administered by the South African TRC, the
Secretary-General of the United Nations has observed:
“The purpose of the
clause in the Statute (which allows the Court to intervene where the state is
‘unwilling or unable’ to exercise jurisdiction) is to ensure that mass-murderers
and other arch-criminals cannot shelter behind a State run by themselves or
their cronies, or take advantage of a general breakdown of law and order. No one
should imagine that it would apply to a case like South Africa’s, where the
regime and the conflict which caused the crimes have come to an end, and the
victims have inherited power.

It is inconceivable that, in such a case,
the Court would seek to substitute its judgement for that of a whole nation
which is seeking the best way to put a traumatic past behind it and build a
better future [10]”.
As noted, the South African TRC has been recognized and
even endorsed as a valid means of dealing with crimes arising out of apartheid
[11]. Moreover, state practice [12], international jurisprudence [13] and
authors [14] confirm that the Rome Statute does not preclude a state from
utilizing amnesty as an effective means of prosecution. However, what about the
Congolese TRC? In assessing if the Congolese TRC met some minimal requirements
to approach legitimacy under international law, one can point out that the
Congolese TRC was not created and operated transparently in order to sustain
democratic legitimacy. There was a clear lack of citizen involvement in the
creation and functioning of the TRC, and openness to ensure domestic legitimacy.
There was no endorsement of the TRC and its work as a mechanism of transitional
justice. Moreover, there are many critiques because commissioners came from
different factions, and were not chosen by means of a process, which tried to
ensure a democratic spirit and practice, and transparency. Therefore, it seems
that the purpose of such a commission, was to be a “Truth Omission” instead of a
“Truth Commission” and cannot encounter support by the international community
[15].
In order for truth commissions to merit international legitimacy,
Professor Crawford suggested that one possible test would be whether the
procedure in question had been freely ratified by the successor regime, “so it’s
not just a way that the generals can sign their amnesty on the way out of the
door [16].” And for that, Charles Villa-Vicencio [17] helps us by saying that
truth commissions needs at a minimum to incorporate the following:
– There
needs to be convincing evidence that the majority of citizens endorse the
provision as a mechanism of transitional justice; – The disclosure of as much
truth as possible concerning the gross violations of human rights; –
Accountability of those responsible for gross violations of human rights,
recognising that this need not to be in the form of retributive sentencing by
the state; – A mechanism needs to be put in place to provide a form of relief or
reparation to victims whose rights are suspended by a qualified amnesty
provision; – The suspension of prosecutions in a transitionary situation should
not be a pretext for the abrogation of other requirements of international law;
– A forum in which victims and survivors may tell their stories and questions; –
Prosecutions should remain an option both during and after the TRC against those
perpetrators who did not adequately participate in the process.

Although
we agreed with Charles on these criteria, the last one seems not to be
consistent. Truth commissions are not alternative to prosecutions, all are two
sides of the same coin and should be used complementarily but sequencing for
their success. Saying that “prosecutions should remain an option both during and
after the TRC against those perpetrators who did not adequately participate in
the process” seems to be too simplistic and could undermine the entire effort to
heal the wounds of the nation and to fight against impunity. In addition to
satisfying the above minimum criteria for international legitimacy, a Truth
commission should also be created and operated transparently in order to sustain
democratic legitimacy. Citizen involvement in the creation of a truth
commission, and openness to media coverage of its operations, are necessary to
ensure domestic legitimacy [18]. And Juan Mendez put it clearly by
saying:
“There are two conditions of legitimacy that we should insist upon
for any program of transitional justice. First, transitional justice policy
should be developed as part of an open, democratic debate, which includes
consultation with and participation of the relevant stakeholders and full
transparency of decisions. If decisions about how to reckon with the past are
adopted exclusively by the parties to a conflict, without appropriate
consultations with the victims of abuse or with society at large, the result
will almost always generate dissatisfaction and rejection. Second, transitional
justice policy should be contemplated in as comprehensive and holistic an
approach as possible. This is not only because there will always be an ‘impunity
gap’, meaning that many cases of abuse will not be resolved by trials, thus
generating the need for a broader treatment of the universe of violations. It is
also because the emerging principles in international law … establish that the
obligations of the State are four-fold: to prosecute perpetrators, to unearth
the truth, to offer reparations to victims, and to reform abusive public
institutions [19].

CONCLUSION

In many transition
periods two methods are used to establish record of grave human rights crimes
following a conflict/war: prosecutions at national or international level and
truth commissions with various names, which investigate situations and submits
reports. Both of these two methods are not sufficient and therefore, the need to
complement each other. There is a growing demand for transitional justice
mechanisms such as truth commissions, around the world. The problem however, it
is to test if all those mechanisms imply good faith. Is the effort designed to
generate more truth, more justice, reparations, and genuine institutional
reform? If so, they are welcome. If the objective is to evade the State’s and
society’s legal, ethical and political obligations to their people, they should
be rejected. The answer should be found in the design of the process itself, but
also in the degree of participation, consultation, and transparency that
surrounds them (e.g. of South Africa). Moreover, we should start by avoiding
seeing truth commissions as an alternative to prosecutions. Even if many of them
have been accompanied by grants of amnesty to the major perpetrators of human
rights crimes, viewing truth commissions, as substitute for prosecutions is not
a right way and can lead to contradictions.

Therefore, we should try to
consider truth commissions as complementary to national and international
prosecutions, not to substitute them. They are two sides of the same coin:
transitional justice. However, the processes must be sequenced in a way that one
does not affect the effectiveness of the other. Accordingly, Scharf has said, “a
country should not rush ahead with prosecutions at the cost of political
instability and social upheaval or that every single perpetrator must be brought
to justice, an impossible task in most countries that have experienced
widespread human rights abuses. By documenting abuses and preserving evidence, a
truth commission can enable a country to delay prosecutions until the
international community has acted, or the new government is secure enough to
take such action against members of the former regime [20].” Furthermore, it may
be useful to examine the utility of conducting prosecutions after Truth
commissions as a means of uncovering more “truth” that was not revealed through
the process. Because, like in the South African case, if those people who did
not apply for amnesty or those whom the amnesty was refused, do not face trials,
someone could say that there is de facto amnesty and therefore, the purpose of a
TRC was just to shield some perpetrators. In this hypothesis, the process will
violate the international law and will not be in the interest of justice
(society as a whole). So, we should look on the possibilities to trials for
those persons in order to avoid impunity, contradictions and allow the roots of
a just society to take hold.

NOTES
——
1] Tina Rosenberg,
“Afterword: Confronting the Painful Past”, in Martin Meredith, Coming to Terms:
South Africa’s Search for Truth, 1999, p 328
2] Charles Villa-Vicencio,
“Reconciliation as Political Necessity: Reflections in the wake of Civil and
Political Strife”, p.3
3] Paavani Reddy, “Truth and Reconciliation
Commissions Instruments for Ending Impunity and Building Lasting Peace” in The
Chronicle, See http://www.un.org/Pubs/chronicle/2004/issue4/0404p19.html
4]
Priscilla Hayner, Same species, different animal: how South Africa compares to
truth commissions worldwide, in Charles Villa-Vicencio and Wilhelm Verwoerd,
“Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation
Commission of South Africa” UCT Press, 2000, p34-35
5] Boraine, Alexander,
“Amnesty in exchange for truth: Evaluating the South African model” in “A
country Unmasked” Pgs 258-275
6] Juan E Mendez, “Transitional Justice in
Historical Perspective”, Outline, Somerset West Conference, March 28, 2005
Inaugural Address
7] Naomi Roht-Arriaza, “Amnesty and the International
Criminal Court”, International Crimes, Peace, and Human Rights: The Role of the
International Criminal Court (Ardsley, New York: Transnational Publishers Inc.,
2000) at 79.
8] James Crawford, See
http://www.crimesofwar.org/onnews/news-us-icc.html (accessed on 4th December
2007)
9] Charles Villa-Vicencio and Erik Doxtader (Ed) 2004, Pieces of the
Puzzle: keywords on reconciliation and transitional justice, Cape Town,
pp.89-90
10] Charles Villa-Vicencio and Erik Doxtader (Ed) 2004, op.cit, p
91
11] Kader Asmal, International Law & Practice: Dealing with the Past
and the South African Experience, 15 AM. U. INT.’L L. REV. 1211, 1228
(2000).
12] Azanian Peoples Organization (AZAPO) v. The President of the
Republic of South Africa, 1996 (4) S.A.L.R. 671, at 30 (South African
Constitutional Court);
13] Prosecutor v. Tadic, Appeals Chamber, Decision on
the Defence Motion for Interlocutory Appeal on Jurisdiction, No. IT-94-1-AR72
(Oct. 2,1995) at 6
14] Leila Nadya Sadat, Universal Jurisdiction, National
Amnesties, and Truth Commissions: Reconciling the Irreconcilable, in Stephen
Macedo, Universal Jurisdiction: National Courts and the prosecution of Serious
Crimes Under International Law (2003); Scharf, Amnesty Exception, supra note 33;
John T. Holmes, The Principle of Complementarity, in 41-79 The International
Criminal Court: The Making of the Rome Statute (Roy S. Lee., ed., 1999); Michael
P. Scharf, Swapping Amnesty for Peace: Was there a Duty to Prosecute
International Crimes in Haiti?, 31 TEX. INT’L L.J. 1, 4-5 (1996).
15]
Critiques reside especially in the way of nomination and the issue of openness
by involving civil society and other parties.
16] James Crawford, See
http://www.crimesofwar.org/onnews/news-us-icc.html
17] Charles
Villa-Vicencio, Truth Commissions, in Charles Villa-Vicencio and Erik Doxtader
(Ed) 2004, op.cit., p 92
18] See Andre du Toit, “The South African Truth and
Reconciliation Commission (TRC): Local History, Global Accounting”, in Politique
Africaines 92 (2003), p7
19] J. Mendez, 1997. “Accountability for Past
Abuses”, Human Rights Quarterly, 19, pp. 255- 282.
20] Michael P. Scharf,
“The Case for a Permanent International Truth Commission”, in Duke J. Comp.&
Int’Law, Vol.7:375, 1997, p.399
About the Author: Dr. Yav Katshung Joseph is
a Human Rights lawyer and Consultant; an Associate Professor in the Faculty of
Law at the University of Lubumbashi, an Advocate at the Lubumbashi Bar
Association and the coordinator of the UNESCO Chair for Human Rights, Democracy,
Good Governance, Conflict Resolution and Peace at the University of Lubumbashi,
DR Congo.

—
Envoyé par Dr. Joseph Yav Katshung dans JUSTICE
ET SECURITE HUMAINE EN AFRIQUE (JUSTICE AND HUMAN SECURITY IN AFRICA) le
1/31/2009 09:18:00 AM