Transitional Justice Study Guide

Restorative Justice

AIM ●*Restoration* of the *relationship between the perpetrator & the victim* by focusing on their respective *needs within the broader community* to which they belong (practical experiences of TRCs.) CHARACTERISTICS ●Focus on the *healing of the victim & the entire country* ●*Problem is viewed* as that *of the whole community or group*. ●Emphasis on reconciliation & *restoring social harmony.* ●*High* degree of public *participation*. ●*Full participation of the victim &* the *relevant communities* ●Rules of evidence and procedure are *flexible*. ●*No professional legal representation* ●Process is *voluntary* and decisions *based on agreement* ●Emphasis on restorative penalties. ●Justice based on *reconciliation, compensation, restoration & rehabilitation* STRENGTHS ●*Accessible* to local (& rural) people, carried out *in the local language*, within *walking distance*, with *simple procedures* & few delays. ●*Highly participatory, giving* the victim, the offender and the community *a real voice in finding a lasting solution* to the conflict. ●Help in *educating all members of the community* as to the rules to be followed, the circumstances which may lead to them being broken, and *how ensuing conflict may be peacefully resolved* ●Their non-custodial sentences *reduce prison overcrowding*, allow *prison budget* allocations to be *diverted towards social development purposes*, permit the *offender to contribute to the economy* and to *pay compensation to the victim*, and *reunite prisoners and their families* WEAKNESSES ●The compromise reached may *reflect the unequal bargaining strengths of the parties* ●Prevailing social attitudes may in fact *reinforce inequalities on the basis of gender, age or other* status. ●Those who lead the process *may be biased* towards certain groups. ●Because of procedural flexibility *procedural safeguards may be insufficient* ●*Few experiences of restorative justice implemented* in post-conflict situations (Gacaca tribunals)

Sierra Leone

CIVIL WAR ('91-'02) ●Over 100,000 dead ●2 million displaced ●Rampant Human Rights abuses - rape, forced marriage, sexual servitude, amputations, child soldiers ●Thousands & thousands mutilated ●"The future is in your hands" ●48,000 child (12,000 girls) soldiers used on all sides of the war *LOME PEACE ACCORD* (1999) ●*Cessation of hostilities* ●Establish a *TRC* (Act passed in 2000) ●Initiation of *DDR* programme ●Inclusion of RUF in government ●*Complete & unconditional blanket amnesty for all combatants for all crimes committed after 1991* ●Why was there a *return to violence w/in a year*? ~Concessions to armed groups and undemocratic elites eroded the legitimacy of civilian political authority ~Signalled that violence and criminality were a legitimate route to political power ~*Violence paid in terms of money*. Poor governance, *corruption*, and poverty key conflict dynamics ~*International peacekeeping* involvement *characterised by incoherence and inconsistency*, each with their own agenda PERSONAL JURISDICTION (*Ratione Persona*) ●Prosecute those who bear "the *greatest* responsibility for serious violations of international humanitarian law and Sierra Leone law committed *within* Sierra Leone since 1996 SUBJECT-MATTER JURISDICTION (Ratione Materiae) ●Crimes under int'l humanitarian law & under Sierra Leone law ●Unlike the ICTR the crime of genocide was ommitted from SCSL Statute TEMPORAL JURISDICTION (Ratione Tempore) ●3 main considerations; ~Reasonably limited to not overburden prosecutor ~Beginning date should correspond to an event but not have any political connotations ~Encompass the most serious crimes committed by all political and military groups in all geographical parts of the country ●Beginning date; 30 November 1996 (Abidjan Peace Agreement) and when Freetown first came under attack LANDMARK DECISIONS ●Amnesty provisions cannot preclude int. criminal justice system from holding perpetrators accountable ●Convict individual for the recruitment of child soldiers ●Sexual slavery listed as a crime in the Statute. "Forced Marriage" included in "other inhumane acts" from the category of crimes against humanity. ●Unanimous decision that a sitting head of state did not enjoy immunity from prosecution ●Attacks against peace keepers SHORTCOMINGS ●Funding came from voluntary contributions - the *Court spent a lot of time concentrating on getting more funding* ●SL domestic law; from the start the prosecutor decided that no charges would be laid under domestic law. No precedents for domestic courts, unfortunately. ●No prosecutions of mid-level perpetrators ●Mandate ruled out the prosecution of peace keeping troops .... ●Mostly open to the public ●No death penalty ●SL government not paying for court. ~Raised $ 57 million from international donor countries (1st) ~Cost $300 million ~Took 11 years instead of 3 years as expected ~Total of 9 convictions ranging from 15 - 32 years MANDATE ●Determine the causes and context of *HRV* and Int. Hum. Law and the result of which group ●Undertake *investigations* and research into key events, causes and patterns ●*Hold sessions and take statements* from both victims and perpetrators ●Report to President - Parliament - UNSC TRC FINDINGS ●*Bad governance*, *Corruption*, *Human Rights Abuse*, *Failure of leadership* - All *created the conditions* for violent conflict. ●Liberia and Libya contributed to the war. ●Youth were both perpetrators and victims ●"Women and girls suffered uniquely." DISARMAMENT, DEMOBILIZATION & REINTEGRATION 1. Disarmament 2. Demobilization 3. Reintegration ●Highly unsuccessful. Reintegration process less successful than disarmament & demobilization MEMORIALIZATION ●*Reclaiming space* that was once violated ●Illiterate Sierra Leoneans requested a *space to gather and discuss* ●Focus on what can be derived from a memorial REPARATIONS ●Service packages; healthcare, education support, mental health care ●United Nations Peacebuilding Fund pledged $3 million in 2008 for Year One Project ●Primary Beneficiaries: amputees, war wounded civilians, war widows, orphans, victims of sexual abuse ●*Insufficient outreach* ●*Little inclusion* of victims' organisations ●*Low level of registration* in areas that were *severely affected* by the conflict (rural) ●Victims of *sexual violence lowest registered category* ●Cross referencing (victim verification) with the TRC and other public registries excluded many rural communities. ●1. *Interim Payments*; ~Only for *principal applicants who had been approved* ~The majority of registered victims received payment ●2. *Emergency medical cases* ~Psycho-social counselling ~HIV/AIDS & STI testing & treatment ~Fistulas ~Scar removal for former child combatants *INSTITUTIONAL REFORM* ●Police Force ●Armed Force ●Judiciary ●Change in laws - rape ●Issues ~There was no formal relationship between TRC, SLSC and DDR; too little attention paid to reintegration and reconciliation ●2005 UN peacekeepers left handed over all security to the SL military Seems to be a trend in violence in Sierra Leone where there is more violence between armed combatants, while in Liberia there is more violence against civilians

Transitional Justice

DEF ●Involves *prosecuting perpetrators*, *revealing the truth about past crimes*, providing victims with *reparations*, *reforming abusive institutions* and *promoting reconciliation* ●Generally refers to a range of approaches that states may use to *address past human rights wrongs* & includes both judicial and non-judicial approaches ●Embodies an attempt to *build a sustainable peace after conflict, mass violence or systemic human rights abuse* EMPHASIS ●Provides *opportunities for societies in political transitions* from authoritarian, dictatorial regimes or from violent/ civil conflicts to address past human rights abuses, mass atrocities, or other forms of severe trauma in order to facilitate a smooth transition into a more democratic or peaceful future with a focus on victims

Retributive Justice

DEFINITION ●*Based on prosecution*, retributive justice *emphasizes the need to hold perpetrators accountable* & being punished for their crimes INSTITUTIONAL MECHANIMS ●*Domestic courts* (Iraqi High Tribunal [IHT]) ●*Special or Ad hoc tribunals* (ICTR & ICTY) ●*Int'l Tribunals* (ICC) ●*Hybrid Domestic Tribunals* (Employ international judicial personnel, rely on international cooperation & assistance by states & international organisations & usually have jurisdiction to try international crimes. Ex.: Special Court for Sierra Leone) ●*Foreign courts* (Belgium national court - law of universal jurisdiction repealed in 2003 in favour of law on extraterritorial jurisdiction in Euro, but 4 Rwandan genocide suspects convicted & sentenced from 12 to 20 years in prison in 2001 & Chadian ex-President Hissen Habré indicted for serious crimes in 2005) BENEFITS ●*Reduction of* risks of *private revenge* ●Prevention of the return to power of perpetrators, so *no repetition of past abuses* ●FulfiLlment of an obligation to victims, healing of their wounds & restoration of their self-confidence because of public acknowledgement of who was right & who was wrong ●*Individualization of guilt*. Establishment of individual accountability by criminal courts eradicating the dangerous perception of collective or community responsibility ●*Breaking of the cycle of impunity*, deterrence of future human rights abuse LIMITS & RISKS ●More focus on perpetrators & *ignorance of* the real feelings & *needs of victims* ●*Risk of relapse* into violence & destabilization of fragile peace settlement ●Possible *obstruction of democratic consolidation* ●*Possible crippling of governance* & vital political & economic development by a far-reaching purge of administrative & managerial staff ●*Selectivity of prosecution* ●*Incapacity* of criminal tribunals *to stop ongoing conflicts*

Redistributive Justice

DEFINITION ●Aims to *address socio-economic imbalances* and ensures *better equity on addressing social & economic rights* OBJECTIVES ●*Realisation of broader social objectives*, such as *fairness, economic growth, political stability* & a new collective national identity FOCUS ●It focuses *not only on the victims & perpetrators*, but also on *those who suffered from past socio-economic injustice, as well as those who benefited* from it ●It focuses on the *collective socio-economic dimension of authoritarian abuse* ELEMENTS/MEASURES ●*Socio-economic rights* (ex: fiscal & welfare reform) ●*Wide-ranging redistribution* (eg. Nationalisation of major economic & industrial sectors, land reform, etc. & affirmative action) BENEFITS ●*Addresses the most urgent demands of post-conflict societies*, i.e. social justice; ●*More significant to the victims' ability to forget the past*, as it attends to their material needs (housing, health care, education, employment, etc.; ●*Tackles* one of the most pro-eminent *root causes of conflict* by addressing socio-economic disparities; ●*Contributes to economic growth*, especially in societies where authoritarian regimes were protecting a relatively small landowning oligarchy. ●*Promotes structural change* & offers a more solid & *sustainable solution for preventing future abuse* WEAKNESSES ●Likely to trigger a *backlash from powerful elite group* opposed to redistribution & to jeopardize regime change; ●Alienates the international business & financial community & *discourages foreign investment, weakening democratic stability* by *undermining new regime's economic potential*; ●Emphasising equality, it *sacrifices individual liberty over social justice*, & undermining the new regime's legitimacy; ●*Requires considerable investment* to finance redistribution of assets or employments; thus weakening democratic efforts in other areas

Reconciliation

DEFINITION ●An *overarching* process,* including the key instruments of justice, truth, healing & reparation*, for moving *from a divided past to a shared future*. ●Reconciliation is *both a goal* - something to achieve - *and a process* - a means to achieve that goal. ●Reconciliation is: - *a long-term process*: it takes time, & it takes its own time. - a deep process: it involves *changes in attitudes, aspirations, emotions & feelings*, & even beliefs. Cannot be rushed or imposed. - a very broad process: it *applies to everyone: victims & offenders* ●Reconciliation is about *communication/ talking & understanding*; ●Reconciliation is *about memory*; ●Reconciliation involves *an acknowledgment of truth*; ●Reconciliation *process is unique to each society*; ●Reconciliation *does not necessarily involve forgiveness, impunity & amnesia* FORMS ●*Individual & interpersonal reconciliation*: requires the healing of deep psychological & emotional wounds. A TRC process leading directly to individual healing & forgiveness for some individuals. ●*Political or national reconciliation*: demands a desire & opportunity for sustained & meaningful interaction PROCESS ●Stage 1. *Replacing Fear by* Non-Violent *peaceful coexistence* ●Stage 2. *Building Confidence and Trust* ●Stage 3. *Towards Empathy* (victims' willingness to listen to offenders & offenders' acknowledgement of hurt of victims OBSTACLES ●*Denial of guilt*: Rejection of guilt and responsibility based on a variety of discourses (Offenders acted under orders or threat. Or their actions not unlawful at the time of commission.) ●'*Magnitude gap*': offenders generally undervalue the significance & consequences of their acts, while victims feel the full weight of their suffering. ●*Apologies without accountability*: apologies by offenders without admitting responsibility to the victims do not lead to genuine reconciliation. Many victims find incomplete apologies insulting. ●Acceptable reconciliation cannot: ~Ignore the past; ~Deny the suffering of victims or; ~Subordinate the demand for accountability & redress to an artificial notion of national unity

Truth Commissions

DEFINITIONS ●An official body, often *created by a national government*, to *investigate, document, & report on human rights abuses* within a country over a specified period of time AIMS ●*Investigates the past through truth-telling processes*; ●*Holds perpetrators of past violations accountable*; ●*Forges reconciliation*; ●*Develops reparations packages*; ●*Memorializes victims, survivors* or historical events; and ●Makes *proposals for the reform of abusive state institutions* in order to prevent future violations TYPES ●National ●International CHARACTERISTICS ●*Temporary* bodies, usually in operation from 1 to 2 years; ●Officially sanctioned, *authorized or empowered by the state* ●*Non-judicial bodies* ●*Focus on the past & help to establish the truth* about the past; ●*Investigate patterns of abuses & specific violations* committed over a period of time, not just a single specific event POTENTIAL BENEFITS ●*Help to establish the truth about the past* ●*Promote accountability of perpetrators* of HR violations: - can complement the work of criminal prosecutors by gathering, organizing and preserving evidence ●Provide a *public platform for victims*: can put victims at the forefront of the transition process, helping to heal them, supporting their cause, giving them a sense of personal vindication, & educating the public about the individual human impact of past crimes. ●*Inform & catalyse public debate*: can help stimulate public deliberation on the moral, political and legal issues that must be addressed during a transition process. ●*Recommend victim reparation*: can promote reparations for past abuses & for ongoing psychological, physical and economic injuries, and establish fair and effective definitions and categories of 'victim' for such purposes. ●*Recommend necessary legal & institutional reforms*: can provide clear evidence of failures of human rights protection, ●*Promote reconciliation*: can promote tolerance and understanding by allowing conflicting parties to hear each other's grievances and suffering. ●Help to *consolidate a democratic transition* CHALLENGES ●*Fear of ongoing* or renewed *violence* or war; ●*Ongoing conflict*; ●*Lack of political interest*; ●*Other urgent priorities*: wish to focus on survival & rebuilding in the aftermath of extensive destruction; ●*Insufficient capacity*; ●*Alternative mechanisms or preferences*: existing *community-based mechanisms* & prosecutions POTENTIAL RISKS ●*Improper motives*: use of TRC by government to *pursue political vendettas* or to avoid its own responsibility for difficult tasks; ●*Bias from Commissioners*; ●*Unrealistic expectations* on the part of victims & the public. ⇒ With a *strong civil society and independent media, many of these risks can be reduced* through public pressure

Disarmament, Demobilization & Reintegration (DDR)

Divided into 2 categories: 1. *Disarmament, Demobilization & Reintegration* (DDR). a) DISARMAMENT: ●Voluntary or coerced - *turning-in of weapons*. ●*Focus* not only *on local combatants*, but *also civilians*. ●Combatants often *disarmed in especially established camps* ("cantonment" or "encampment" principle). b) DEMOBILIZATION: ●Actual *elimination of military structures & units* &, on an individual basis, *discharge of combatants* from these units *& beginning of their transition into civilian life*. ●Regularly accompanied by *support provided to fulfil their immediate needs*. So, it's a *short-term measure, geared to combatants* (sometimes their families). c) REINTEGRATION: ●Process which should *allow the demobilised ex-combatants to (re-)integrate themselves into family & society and to earn their living* by productive work ●Instruments for this ~*Regular support payments* ~Payments in kind, such as seeds, tools, education in schools or other training programs, ~*Advice on which job* might be suitable, whether self-employment or the foundation of small businesses could be an option. ●Reintegration is therefore *a medium- to long-term measure* both *geared towards ex-combatants & civil society* into which they are supposed to return CHALLENGES OF DDR PROCESS ●*How to organise the ex-combatants' new life & integrate them* into civil society after being disarmed? viable economic alternatives & a socio-economic development project for the country as a whole ●*Ex-combatants offered substantially more generous demobilisation packages than victims' reparations*. This produces a morally asymmetrical result & can *generate a great sense of injustice amongst victims &* causes them to be *less receptive to reintegration of ex-combatants* ●Full legal immunity to all participants in DDR increases chances of full participation; but *blanket amnesty for gross HR violations to encourage demobilisation is contrary to international law & generates substantial resentment among victims*. It instills a *sense of impunity*, which may contribute to a resumption of hostilities 2. *Disarmament, Demobilization, Repatriation, Reintegration & Resettlement* of foreign combatants. ●DDRRR program is to *encourage combatants & their families to take a step towards a better life without weapons*. *Required cooperation* from the parties *& must be voluntary* a) REPATRIATION: ●Term used *when foreign combatants are involved in a conflict & are being transferred to their home country* after having been demobilised b) REINSERTION: ●Comprises *immediate, short-term needs of combatants & their relatives*, if applicable, such as medical care, food aid, interim financial aid, etc. c) RESETTLEMENT: ●*Transfer & repatriation of the demobilised combatant* into his usual familiar surroundings or to a place of his choice

Zimbabwe

ECONOMIC MELTDOWN ●2008 hyperinflation Currency: Zim $ until 2009. 1$=4.397billion Zim$ Phased out at 35 quadrillion ZWD for $1. ●Now *Yuan*, US $, €, £, RSA, BWP ●Massive trade deficit (diaspora remittances) little liquidity ●2016 government bond notes valued identically at US$. ●IMF - "Zimbabwe in debt distress" *CECIL RHODES & CHIEF LOBENGULA* ●1886 gold discovered in Transvaal ●1888 Moffat Treaty ('Friendship' treaty with England) & Rudd Concession based on verbal and written agreements ●British South African Company (BSAC) established ●*1896 Matabeleland&Mashonaland become Rhodesia introducing arrival of white settlers* ●1964; N. Rhodesia → Zambia Nyasaland → Malawi Bechuanaland → Botswana IAN SMITH ●*Headed the Rhodesian Front party* ●1964 Prime Minister of UK colony Southern Rhodesia ●1965 Unilateral Declaration of Independence (UDI) from England ●No international recognition (except SA) ●UN economic sanctions ensued ●*White minority rule continued until 1979* NATL REBELLION ●1961 Founding of ZAPU; Zimbabwean African People's Union. ●1963 ZAPU split into 2 factions ~ZAPU under Nkomo (Ndabele); Soviet Union alignment. Armed wing Zimbabwe People's Revolutionary Army (ZIPRA) ~*ZANU under Mugabe* (Shona); Chinese alignment. Armed wing Zimbabwe Liberation Army (ZANLA) ●*Civil War* (Rhodesian Bush War/Chimurenga II)ZAPU&ZANU = *Patriotic Front* (PF) with assistance from Zambia&Mozambique governments *against the Smith's UDI government* ●March 1978 *Internal Settlement* leading to a *biracial rule and a coalition government* led by Abel Muzorewa. Declared illegal by UNSC ●December 1979 *Lancaster House Agreement* ~End of the Civil War ~Official Independence from UK ~Opening way to national elections with majority vote ~New constitution ~Protection of minority rights (ie. Whites) MATABELELAND & MIDLANDS CRISIS ●1980 marked the beginning of discontent in country as *Shona victory was contested* in Matabeleland ●ZIPRA & ZANLA fighting killing several hundreds on two different occasions ●*Gukurahundi* (Fifth Brigade) established by *Mugabe to crush any resistance and answerable only to him* ●20,000 Matabele *murdered & buried in mass graves* - genocide? ●*Political manipulation of food* - 400,000 people left to starve in Matabeleland ●Detention of civilians in *torture camps* in Matobo District ●*1988 Unity Agreement between ZANU&ZAPU ending violence and merging* the 2 parties, creating ZANU-PF ●*Creation of a one-party state* ROBERT *MUGABE* ●Born 1924 ●Political prisoner from 1964 - 74 ●Head of government since 1980 in landslide victory ●Regime characterized by systematic & escalating *violations of human rights, corruption & nepotism* ●*Political intolerance* ●Denial of fair trials ●Massive internal *displacement* and emigration ●*Violent expropriation of white farmers* ●*Arbitrary arrests*, kidnapping, detentions, murders by police ●*Hyperinflation* and gross mismanagement of economy CURRENT CRISIS ●June 2008 presidential run-off was *proceeded by so much state-led violence* SADC&AU (staunch Mugabe supporters) could not endorse his victory ●Sept. 2008 *power-sharing agreement* between Movement for Democratic Change (MDC-T) and ZANU-PF *resulting in unstable coalition government* ●Indigenisation Policy (2008 - ) ●Near total collapse of ~Economy ~Governance ~Health ~Education ~Food production TRANSITIONAL JUSTICE MECHANISMS ●Possibility of *TJ process likely to be derailed due ideological clash* of ZANU-PF and MDC ●*Power sharing agreement "considers" a mechanism* for national healing ●*Truth commission not only not possible, but also inadvisable* at present ●Political *mobalisation difficult*; ~Shrinkage of formal sector = drop in unionisation ~State attacks = labour movements more defensive ~Strikes & stay-aways no longer viable because so few are still employed ●*Accountability* ~*Previous* truth commissions, memorializations etc *only dealt with colonial period* ~1988 Blanket amnesty. 3,500 members of 5th Brigade and 122 dissidents pardoned ~2000 General amnesty for all political crimes up to August 2000, except murder, rape and fraud ~*Prosecution of perpetrators seldom successful* ~*Impartiality of judiciary undermined*; Prosecutor has no power of initiative ~*Not a member of the ICC* ●*Truth Recovery* ~*Civil society* keeping track of HR violation *invaluable* ●*Reconciliation* ~*Needs to be economic recovery* for this ●*Institutional Reform* ~*Reforms in government, judiciary, police and army* ~Magistrate's Court in Buluwayo cannot even find an A4 sheet of paper to type a letter on ~*Need resources to deal with corruption* etc. ●*Reparations* ~*Where is the money to come from?* ~*Community reparation* in certain regions *instead of individual reparations* ROLE OF INT'L COMMUNITY ●R2P (Right-to-Protect) ●UN sanctions (mostly lifted) ●AU/SADC ●EU stick-and-carrot policy ●SA - quiet diplomacy PROTESTS ●Restrictive trade measures with RSA on imports ●Pastor Evan Mawairie ~#ThisFlag ~Brutal police clampdown - the colour red ●Mamas protesting by taking to the streets and banging on empty pots

Aims/Objectives of TJ

PRIMARY ●*End* the culture of *impunity* ●*Establish the rule of law* in a context of democratic governance 8 BROAD OBJECTIVES ●Establishing the truth ●Provide victims a public platform ●Holding perpetrators accountable ●Strengthen the rule of law ●Provide reparations / compensation to victims ●Effectuate institutional reform ●Promote individual & national reconciliation ●Promote public deliberation AIMS ●Halt ongoing human rights abuses; ●Investigate past crimes; ●Identify those responsible for human rights violations; ●Impose sanctions on those responsible (where possible); ●Prevent future abuses; ●Preserving & enhancing peace; ●Prevent a relapse of violence

Accountability

Prosecution/Accountability of perpetrators may: ●*Deter future crimes*; ●Be a *source of comfort to victims*; ●*Reflect a new set of social norms*; ●*Begin the process of reforming* & building trust in gov. institutions

African Court on Human & People's Rights (AfCHPR)

●Protocol adopted 8 June 1998 *Burkina Faso* ●Came into force 25 January 2004 - minimum 15 countries to ratify. ●Placed in Arusha, Tanzania ●Set to *merge with the African Court of Justice*, creating the African Court of Justice and Human Rights ●3 July 2014 AU summit decided that *no sitting leader or senior official would be immune* ●*Court would not have the power to convict international crimes* ie. crimes against humanity, war crimes and genocide

Types of Justice

●Retributive ●Restorative ●Redistributive ●Reconciliation ●Disarmament, Demobilization & Reintegration (DDR) ●Disarmament, Demobilization, Repatriation, Reintegration, & Resettlement (DDRRR)

Types of Transition

●Transition *from war to peace* ●Transition from authoritarian *dictatorship to democracy* ●Transition from *Apartheid to a non-racial democracy* ~Ex. *RSA*: Transition from an undemocratic & repressive state predicated on legalised racial discrimination to a non-racial democracy

Memorialization

●*Public memorials*/Sites of Conscience ●Create *sites for citizen engagements* ●Can *build broader cultures of democracy* ●*Engage new generations* ●*What should be memorialized* and where should it go

Democratic Transition Paths

●*Transformation*: occurs when the *elites* in power take the lead in bringing about democracy ●*Replacement*: occurs when *opposition* groups take the lead in bringing about democracy; *former regime collapses* or is overthrown ●*Trans-placement*: occurs when democratization resulted largely from *joint* action by *government elites and reform opposition groups*

Transitional Justice Mechanisms

●Accountability ●Truth-seeking/Truth Telling ●Reparations ●Institutional Reform ●Disarmament, Demobilization, Reintegration (DDR/DDRRR) ●Memorialization ●Reconciliation

Institutional Reform

●As response to mass atrocity, *fundamental change or abolition of institutions responsible for HR abuse* is necessary. ●Primary *responsibility lies on newly established govts*; ●*TRCs can play an important role & make recommendations* in their final reports on legal, administrative & institutional measures to prevent recurrence of HR abuse. ●*Lustration programmes* might be adopted by govts *to remove persons responsible for HR abuse from public service* or prevent them from being employed in govt institutions (*vetting*) ●Vetting/lustration *can establish non-criminal accountability for HR abuse*, particularly when it is impossible to prosecute all responsible. ●Vetting/lustration programmes should: ~Scrupulously *protect the due process rights of persons under scrutiny*; ~Be used to *target only those responsible for HR abuse, rather than political opponents* of the new regime or those who may hold different views & beliefs

Democratic Republic of the Congo

●Congo Free State (1885 - 1908): extraction of rubber & ivory relied on forced labour and resulted in the massacre and mutilation of millions of Congolese. ●B. Belgian Congo (1908-1960): Annexation & Colonisation ●C. Post-independence conflicts (1960-1965): Mutiny & attack on Belgian citizens (July 1960) Secession of Katanga (July 1960) Secession of South Kasai (August 1960) Assassination of Lumumba (January 1961) ●D.* Mobutu authoritarian regime* (1965-1997): gross human rights abuse, atrocities, terror...'kleptocracy CAUSES ●*Economic causes*: (Long-term *interest in DRC's natural or mineral resources* since colonial time. Much of the conflict was focused on gaining control of substantial natural resources in DRC, including diamonds, copper, zinc, & coltan. In 2001 the UN independent panel of experts established that the armed forces of Rwandan & Uganda were perpetrating war & human rights abuses in DRC in order to loot its natural resources) ●*Ethnic / tribal divisions* (citizenship question): (*Tutsi Congolese* (Banyamulenge) *not fully accepted as Congolese citizens* given their Rwandan origin fight for their recognition & identity as Congolese.) ●*Political causes*: (*Lack of democratic values*, rule of law, absence of human rights, *bad governance, corruption*, nepotism, etc.) PEACE AGREEMENTS ●*Lusaka Cease-fire Agreement* (July 1999): signed by heads of States in region & rebel leaders calling for a cease-fire, inter-Congolese political negotiations, *disarmament of rebel & other groups*, & normalisation of the security situation on the borders of neighbouring countries. ●*Sun City Accord* (19 Apr. 2002): emerged from an ICD held at Sun City from Feb. to April 2002. It drew together 350 delegates representing 8 political groups in DRC, & produced a consensus on the principles of transition. This included the *establishment of 5 transitional institutions*. ●*Pretoria Agreement* (July 2002): signed by DRC & Rwanda. *Rwanda agreed to withdraw its troops* from DRC & *DRC agreed to dismantle Rwandan rebel camps* in the eastern provinces. The 2 countries also *agreed to cooperate in the disarmament & repatriation of Rwandans in DRC* & to establish a mechanism for the normalisation of the security situation along their common border ●*DRC-Uganda Peace Agreement* (Luanda Agreement): Signed on 6 Sept. 2002 in Luanda: *Uganda agreed to withdraw its troops from DRC*. It further proposed the establishment of a pacification committee for Ituri Province. Both sides agreed to refrain from military support for armed groups on the other's territory & to cooperate in defence & security in order to establish a border security mechanism. ●*Global and All-Inclusive Agreement on the Transition in the DRC*: Signed on 16 Dec. 2002 in Pretoria; drew together the agreements established at Sun City, the Pretoria Agreement & the agreements subsequently reached with Rwanda & Uganda. It *gave rise to a transitional constitution for DRC*, a memorandum on military & security & opened the way for the implementation of 36 resolutions adopted at Sun City, & introduction of the 5 transitional institutions agreed on. An endorsement of all agreements was signed in a final session at Sun City in April 2003 TRANSITIONAL GOV'T ●the President of the Republic; - the Government; - the National Assembly; - the Senate; - the courts and tribunals ●In addition to the above institutions, the following Institutions supporting democracy shall be set up: - the Independent Electoral Commission; - the National Watchdog on Human Rights; - the Media Authority; - the Truth and Reconciliation Commission; - the Committee on Ethics and the Fight against Corruption MONUC ●Originated from the Lusaka Ceasefire Agreement on 17 July 1999 & UN Security Council Resolution 1258 of 6 Aug 1999, authorizing the deployment of a maximum of 90 officers in DRC. ●Mandate: to monitor the implementation of the Ceasefire Agreement & the redeployment of belligerent forces, to develop an action plan for the overall implementation of the Ceasefire Agreement, to work with the parties to obtain the release of all prisoners of war, military captives and the return of the remains, to facilitate humanitarian assistance and to assist the Facilitator of the National Dialogue MONUSCO (UN Stabilization) ●Established by UNSC Res. 1925 (*2010*) of 28 May 2010. MONUSCO is deployed until 31 March 2014 ●It comprises: in addition to the appropriate civilian, judiciary & correction components, a maximum of 19,815 military personnel, 760 military observers, 391 police personnel and 1,050 personnel of formed police units; ●While *concentrating its military forces in eastern DRC*, it keeps a reserve force capable of redeploying rapidly elsewhere in the country ●UNSC res 2098: March 2013 "*intervention brigade*" ~Enables offensive combat force to *neutralize and disarm Congolese rebels, foreign armed groups* UN PEACEKEEPERS ABUSES ●OIOS investigators recommended disciplinary action against 9 civilian MONUC members & 65 soldiers, 63 of whom were expelled from the mission & repatriated. But other cases were dropped because the victims were unable or unwilling to identify their assailants. In 2005 Sexual misconduct & abuses of women & children by UN personnel in the DRC. The peacekeeping department requested an investigation by the UN's Office for Internal Oversight Services (OIOS). MONUC members stationed in Bunia were accused of soliciting prostitution & exchanging money & food for sex with refugees -- some as young as 12 ●August 2011: Arrest by DRC border control authorities of the MONUSCO staff in a UN vehicle for alleged illegal exploitation & smuggling of natural resources (cassiterite) at the border in their attempt to cross into Rwanda 1.* AMNESTY* ●As per 2002 Global and All-inclusive Agreement; amnesty covered acts of war, political breaches of the law, and crimes of opinion for period 2 August, 1998 - 4 April 2003; except for genocide, war crimes, and crimes against humanity (time frame later extended) ●Amnesty law passed on 7 May 2009 applies to all Congolese, at home or abroad, for acts of war & rebellion committed in the provinces of Nord-Kivu & Sud-Kivu since June 2003. However, it does not apply to "acts of genocide, war crimes & crimes against humanity 2. *RETRIBUTIVE* ●Cooperation w/ the *ICC* ●*Criticism* of ICC prosecutor's strategic approach to DRC ~ICC *not targeting the highest-level perpetrators*, i.e. key players in power in Kinshasa, Kampala & Kigali. ~ICC's *geographic reach* within DRC is *too limited* ~ICC seems *unwilling to prosecute crimes committed by government* forces. ~*Charges/convictions are too limited* ~ICC has done *little national outreach*. ~ICC's presence in DRC *could unexpectedly reduce the likelihood of national prosecutions* 3. *TRC-CVR* (June 2003 - Feb. 2007) ●*Mission*: ~*Establish truth*; ~*Promote peace*, justice, *reparation, forgiveness & reconciliation* for sustaining national unity. ●Mandate (Art 6 of Law No 04/018 of 30 July 2004): ~Establish the truth about all political crimes & all HR abuses committed within & outside the DRC from Independence to end of the transition. ●Jurisdiction: ~1. Jurisdiction ratione personae CVR has *jurisdiction over all Congolese citizens*, comprising the State, members of the army, members of Police, members of security services & individuals who have enjoyed official immunity & judicial privilege ~2. Jurisdiction ratione materiae & ratione loci Establish truth about all political crimes & all HR abuses committed in DRC *& those committed outside DRC, but related to political conflicts in DRC*. ~3. Jurisdiction ratione tempore Events occurred & HR violations committed during the period of 30 *June 1960 up to end of transition* (Dec. 2006 elected institutions.) OUTCOME ●The CVR *did not implement its mandate & failed to hold hearings or conduct investigation* as it was empowered to do. Reasons for the CVR's failure: ●Problematic composition: with *political appointees rumoured to have been involved in abuses*; ●Lack of professional capacity among the Commission's staff members; ●*Budget deficiencies*,; ●*Lack of credibility* among the Congolese public; ●*Failure of leadership* to deal with these problems; ●*Unrealistically large mandate*, spanning a *46-year period*, from 1960 to 2006; ●*Inability* of the CVR *to grant amnesty*; ●*Bad governance within the CVR* 4. *TRUTH-SEEKING & RECONCILIATION* ●On 24 Feb *2017*, under the mediation of DRC authorities, *Luba and Twa communities signed a deal for peaceful coexistence* following a three-day forum held in Kalemie. ●The 2 communities *agreed to "tackle the root causes of the conflict*" & *promote genuine reconciliation* & peaceful coexistence in the community RAPE AS WEAPON OF WAR ●Subjugate populations ●*Instill fear* ●Curtail/force movement ●Curtail economic activity ●*Stigmatize women* ●Undermine community and family structures ●Contribute to the bonding of perpetrators ●*Ethnic cleansing* (patrilineal society) ●*Violence against women increases during conflict & post-conflict* compared to pre-conflict levels ~Become an *accepted norm* ~*Availability of weapons* ~Trauma among male family members ~Sense of impunity accompanied by amnesty agreements 5. *REPARATIONS* ●ICD resolution gave *TRC* responsibility *to take all necessary measures to compensate the victims* & restore their dignity. ●*Difficult to identify all perpetrators* given the multitude of warring parties, i.e. rebels, militias, foreign troops, FARDC troops. (DRC courts can't provide for reparations in the absence of the perpetrator.) ●*Who will pay* reparations to the victims in such complex cases? ●*No acknowledgment by perpetrators* of their wrongdoings *and no willingness to pay reparations* to victims or survivors. ●*No payment of damages & interest awarded to victims of sexual violence* by the courts, even in cases where the state is held liable in solidum (solidary liability) 7. EFFECTIVENESS OF *INSTITUTIONAL REFORM* ●*Public administration & other infrastructures devastated during the dictatorial regime & during the wars need urgent reform* ●Corruption needs to be addressed in public sectors. ●Security system reform (SSR): identify & remove past human rights abusers from army, police & other security forces & create ongoing accountability mechanisms. ●*No lustration or vetting*: appointment of *warlords* responsible for mass atrocities to military or government posts. 2 former militia leaders (Germain Katanga & Mathieu Ngudjolo) *were integrated into the national armed forces*, serving as general and colonel, respectively 8. *DISARMAMENT, DEMOBILIZATION & REINTEGRATION* 1. *Disarmament* ●Collection, documentation, control and disposal of small arms, ammunition, explosives and light and heavy weapons ●*Weapons from combatants (& civilians) collected, documented and disposed of* ●Certification of eligibility for benefits ●Should not give the impression of a weapons buy-back program ●*Transportation to demobilization centre* 2. *Demobilization* ●*Armed groups formally disbanded and active combatants discharged*. Short and complex phase ~2 stages for *reinsertion* ("transitional assistance") 1) *Processing of individual combatants*, placing in temporary centres 2) *Support packages for demobilized* ~Cash payments ~In-kind assistance of goods and services ●*Combatants separated from commanders* and transported to temporary quarters for counselling and basic necessities 3. *Reintegration* ●*Economic* ~*Create sustainable livelihoods* and *general standard of living* ~Avoid creation of a dependency syndrome ~Apprenticeships & Vocational training ●*Social* ~Support by extended family network ~Create informal networks DDR 3 STILL IN PROGRESS Various challenges ●*Eruption of violent incidents in demobilisation camps*, i.e. Kitona & Kamina military camps due to hardships therein; ●*Lack of logistical resources* despite DRC government allocating more than US$20 million for transport, logistics, food assistance & other expenses. ●Programme implementation: *call for a new & better demobilisation programme due to government's ineffectiveness* & inefficiency for poor implementation of the current programme. ●*Current political tension: could destabilise the entire country* with the DRC electoral commission's decision delaying the elections. ●*Instability* in the region *by armed rebel groups from neighbouring countries* operating in eastern DRC, i.e. FDLR, ADF, SPLA rebels. ●*Economic decline of the DRC* ●*Overall DDR program considered inadequate*; ~Supervision and monitoring weak ~Lacked in professional capacity to anticipate gaps in the programming ~Negative attitude by government; more concerned with defence reform and integrating combatants into new armed forces ~Elections being held BARRIERS TO FEMALE PARTICIPATION (as combatants) ●*Did not possess a gun* ●*Forced to hand it over to commanders for male combatants* to hand in ●Feared further abuse at DDR centres ●Did not want to be associated with armed groups ●*Were ill-informed* CHILD SOLDIERS ●16 & younger ●A total of 30,000 removed from armed groups ●Hnaded over to UN & other NGOs Challenges ●Did not officially have to hand in a weapon or have combatant status but often in DDR centres they were turned away if they did not. ●They *played multiple other roles* ●Were prevented from leaving the control of their commanders ●*Fear of stigmatization* ●*Fear for their security* .... ●*DDR programs need to be community-based and not individual-based* approach for them to succeed ●Need to be *well-funded, not just in the short-term* INFORMAL/TRADITIONAL MECHANISMS ●1. Traditional community courts (village based mechanisms): ~*Councils of elders* in most communities meet regularly in order to resolve conflicts & disputes between community members. ~Focus on *reparative justice, forgiveness & reconciliation* between parties in conflict. ~*Criticised for 'being under the control of local chieftains*, being based on certain 'retrograde' customs and being discriminatory toward women'. ~Do not comply with standard international principles for better administration of justice ●2, *Barza intercommunautaire* ~A *project based on conflict resolution*, conflict prevention in the community to strengthen harmony, social development & cohesion between members. ~Has the responsibility to *receive complaints from the victims & create opportunities for resolving the conflict* between the victims & the perpetrators for sustainable reconciliation. ~*Accused of being hijacked*, controlled & influenced *by some political authorities*, undermining its originality, effectiveness & causing the failure of attempts to replicate it in other areas ●3, Commission for Pacification & Harmony (*POC*) ~Established by Decree to create opportunities for different communities to engage in dialogue, discuss community problems & achieve reconciliation. Achievement: DDR of former combatants into society. ●4. *The Kyaghanda* ~A traditional mechanism for conflict resolution in the most populous ethnic group in North Kivu province, the Nande. A 'traditional veranda': serves as *space for meetings, customary rituals & intercommunity dialogues* for peaceful coexistence between different social groups. ●5. *Church-based institutions*: 'Comités des Sages' (Committee of wise people) Communautés Ecclésiales Vivantes (CEV) in the Roman Catholic Church. Sub-commissions of *peace & reconciliation in the Catholic Church & other protestant churches*

Int'l Criminal Court

●Court of Last Resort INT'L CRIMES ●*War Crimes* ~*Unlawful targeting* of civilians ~*Severe mistreatment* of both soldiers & civilians (i.e. torture) ~*Prohibited methods* of warfare (excessive use of force, human shields) ~*Prohibited means* warfare (use of weapons that cause *unnecessary suffering*) ●*Crimes Against Humanity* ~Whether in time of peace or conflict they include *certain inhumane acts committed* as part of a *widespread or systematic attack* against a civilian population (murder, torture, sexual violence, deportation...) ●*Genocide* ~Killing, *causing bodily or mental harm deliberately* inflicting conditions of life *calculated to bring about the destruction of a group* ~Measures intended to *prevent birth* ~*Forcibly transferring children* from one group to another ~Must be *committed w/ the intention* to *destroy a nat'l, religious, ethnic or racial* group in whole or in part ●*Crime of Aggression* ~The *use of armed force by one state against another state* (launching an invasion or attack, blockading ports, sending armed groups or mercenaries) .... ●A state that becomes a party to the *Rome Statute* authorizes the *ICC to exercise jurisdiction over these crimes* when they are *committed by their national or on their territory* ●Case can be opened by (when state part of Rome Statute): ~1. *That state* (proprio motu [one's own initiative]) ~2. By *another state party to the Rome Statute* 3. By the *ICC Prosecutor* acting on her/his ow initiative, *w/ the authorization from the ICC judges* ●Case can be opened by (when state NOT part of Rome Statute): ~1. A non-party state can *lodge a declaration* with the Court *accepting its exercise of jurisdiction over a particular situation* (E.g. Ivory Coast 2003) ~2. Under Chapter VII the *UN Security Council can refer* a situation *for* ICC *investigation and possible prosecution* (E.g. 2005 Darfur (Res. 1593)) CHARACTERISTICS ●*Domestic courts remain the preferred forum* for delivering justice for international crimes. ●States can exercise *universal jurisdiction over individuals* accused of international crimes; ('based solely on the crime, without regard to where it was committed, the nationality of the victim, or any other connection to the state exercising such jurisdiction') PRINCIPLE OF COMPLEMENTARITY ● This is at the *heart of the Rome Statute*. The ICC will *only prosecute an individual if the state* concerned is *unwilling or unable to prosecute the offender domestically* FOR & AGAINST IN AFRICA ●For: Botswana, Côte d'Ivoire, Mali, The Gambia, Burkina Faso and Senegal ●Against; Kenya, Rwanda, Uganda, Sudan, South Africa, Zimbabwe, Ghana, Ethiopia, Tanzania, Algeria ●*AU* agreed (2014) that *no sitting African president should be tried by international courts* while in office

Reparations

●Def: *State-sponsored initiatives that help repair material & moral damages of past abuse* ●Forms 1. *Material assistance* (financial compensation payments, pensions, bursaries & scholarships); 2. *Physical, mental & psychological assistance* (trauma counselling); 3. Symbolic measures (official state apologies, expressions of regret, public acknowledgements, recommendations for reform, monuments, memorials, museums & national days of remembrance) ●Types 1. Reparation Rights & Reparation Politics 2. Individual & collective measures; 3. Financial and non-financial measures; and 4. Commemorative & reform measures ●*States bear an obligation* under international law *to provide reparation* to victims of gross violations of human rights. ●State to decide: ~Whether reparation to be *paid only to victims of gross violations* of human rights (torture, killings & disappearances), *OR* ~Whether *also to* provide reparation to *a broader class of victims*, (i.e. victims of systematic racial discrimination or those who have lost land or other property). ●A just & sustainable reparation policy should: ~*Neither create nor perpetuate divisions* amongst different categories of victims, ~Be *feasible and financially realistic* ●Reparation must be *linked to truth & justice*: compensation used to buy the victims' silence in the absence of truth will impede their psychological rehabilitation

Definition of Transition

●Etymologically from the Latin "transire" meaning *to go* (ire) *across* (trans) ●Passage from *one state, stage, subject, or place to another* ●Process or period in which something *undergoes a change & passes from one state*, stage, form, *or activity to another* ●Interval *between one political regime* & another

Gacaca Village Justice Program

●Gacaca (urucaca, a kind of grass) refers to *the gathering place where people used to sit together & settle their disputes* around issues such as land rights, theft, marital issues & property damage. Called *"justice on the grass"* ●Rwanda Gacaca Court system was implemented to *eradicate the culture of impunity* & deliver expeditious justice ●It has *evolved from traditional cultural communal law enforcement* procedures. ●Gacaca Courts charged with prosecuting & trying *perpetrators of crimes of genocide & other crimes against humanity*, committed between 1 Oct. 1990 & 31 Dec. 1994 ●As a cornerstone for reconciliation: ~It removes suspicion as the guilty party is denounced. ~It helps to eradicate the culture of impunity. ~It enables people to live in peace and harmony once again. ~It enhances collaboration between inhabitants in disclosing the truth about genocide events OBJECTIVES ●Enable truth-telling about genocide Promote reconciliation among Rwandans Eradicate culture of impunity Speed up trials of genocide suspects Demonstrate Rwanda's own problem solving capacity ACTIVITIES ●*Collection of information* relating to the genocide ●*Categorisation of persons prosecuted* for having committed genocide or having played a role in different genocidal crimes. ●*Trial of cases* falling under their competence STAGES ●1. Collecting info ('02-'04) ●2. Categorizing perpetrators ●3. Trials ('05) CHALLENGES ●Legal due process: failure to adhere to int'l legal standards ●*Logistical and operational capacity*: consistently delayed starting times; the lack of shelter from heat and rain for the courts. ●*Lack of compensation for Gacaca judges*: judges are unpaid as the system is based on voluntary participation, but they do receive free education for their children and medical insurance. ●*Attacks on participants/ potential witnesses*: intimidation against testifying and fear of retaliation ●*Non-participation*: alleged perpetrators; widespread reluctance of community residents to participate & name accused persons because of lack of information about the Gacaca process, security reasons & fear of retaliation; resistance of women to testify on acts of sexual violence. Limited participation of intellectuals, public and religious leaders ●*Absence of a sense of "community ownership"* supposedly driving the Gacaca system ●Regarding reparations ~*Silence of the law on reparations* ~*Limited financial compensation* to genocide survivors. ~Reparations *only for [stolen] property but* goats, cows, houses *[property] destroyed*. ~A social fund for health & education for widows, orphans & the disabled; it is estimated that *only 30% of the needs of genocide survivors are covered*

Truth Seeking/Truth Telling

●Governments, citizens & perpetrators *need to acknowledge the wrongfulness of the abuse* ●*Establishing an official truth* about a brutal past can help inoculate future generations against revisionism & empower citizens to recognise & *resist a return to abusive practices* ●*TRCs can provide victims with a voice* in public discourse & their testimony can help *rebut official lies* & myths regarding HR abuse. ●*TRCs can help facilitate* & add impetus to *transformation of state*

To know

●How to spell names (leaders, presidents...) ●Mnangagwa ●Cecil Rhodes ●What can be considered a mechanism under the term a national healing (truth commissions, reparations [money, flag change], memorialization, institutional reform) ●Don't forget the intro slides b/c that'll be the backbone of this info ●5 long answer - 20 points for choice of 2/5 options ●~25 short answer questions - 30 points (some questions are 1 pt., others are 3pts. [look @ pts to determine how detailed answer should be]

South Africa

●Motto: 'Unity in Diversity' ●Diverse population (50% in poverty, 25% unemployment) ●One of the world's most violent countries ●A country of '2 nations': one rich & largely white, & one poor & largely black APARTHEID POLITICAL ECONOMY ●*Race* was definitive criterion for *access to privileges & opportunity* ●White workers guaranteed access to jobs rising wages....*Restriction of social & economic mobility of black SA through legislative* & administrative measures ●Influx control measures: preventing black people from being physically present in white ares w/out state permission ●Predominance of Indians & colored in the expanding sectors of the economy PRECONDITIONS TO NEGOTIATION ●1. Release of political prisoners (Mandela) ●2. Lifting by the gov't of the state of emergency ●3. Granting of temporary amnesty for ANC leaders & cadres returning from exile ●4. Repeal of political repressive legislation ●5. Repeal of racial legislation TJ MECHANISM 1: *Institutional Reform* ●*New constitution, proportional representation non-racial democracy* ●Trias politica w/ *safeguards for minority groups & women* ●Security sector ●Corruption/nepotism/cronyism ●Framework but *too few substantial checks & balances* TJ MECHANISM 2: *Truth Telling* ●*Types* of truths recognized by TRC ~Narrative; forensic; historical & social/dialogic ●*Only gross HR investigated*; out of individuals ID'd only 10% gave public testimony ~Black women made up majority (against their male relatives) but given little special attention ●*Minimal participation by white community* ●*Didn't address economic or social injustice* ●Artificially *separated structured violence & performed violence* by apartheid regime ●*Failed to address institutional violence* ●*Not enough reconciliation* THE 3 COMMITTEES ●1. Human Rights Violations Committee (HRV) ●2. Amnesty Committee ●3. Reparations & Rehabilitation Committee (R&R) RESTORATIVE JUSTICE ●*'Repair' the injustice*; to make up for the injustice ●Effect *corrective changes* in the record, *in relationships and in future behaviour* ●*Denouncing* of the *harmful act rather than the offender* ●*Reparations* play a large part in restorative justice, *both socially and economically* TRC REPARATIONS ●'Any form of *compensation*, ex gratia payment, *restitution, rehabilitation or recognition*'. ●TRC *Distinction between* ~*broad, longer-term reparations* policy ~*urgent* interim reparations (*UIR*) policy → Those in urgent needs (urgent medical, emotional, education...needs) → Those considered especially urgent included (terminally ill, no fixed home or shelter, orphaned...) ADDITIONAL TASKS ●*Outreach* program ●*Statement taking* (trauma counselling) ●Post-hearing *follow-up* ●Conduct *research*; ~i. Consequences of HRV on individuals, families, communities ~ii. Assessing people's expectations of the Commission TYPES OF REPARATIONS ●1. *Financial* ●2. *Symbolic* ●3. *Community forms* OUTCOME ●Process *took too long to be implemented* ●Amounts *made little material difference* ●*Some victims felt* more *alienated* from the TRC ●*None* of the victims *viewed it as 'blood money'* ●*All experienced backlash from local community members who did not receive UIR* ●Many *had conflicts within families* ●*None* of the recipients were **empowered psychologically or politically by the UIR process*, did not understand the legal foundations of their access to reparations, *lacked basic knowledge on how the Commission was organised* or functioned *5 R's* The CRR for its final report turned to int'l literature on reparations ●*R*edress ●*R*estitution ●*R*estoration of dignity ●*R*eassurance of non-*r*ecurrence 5 COMPONENTS OF REPARATIONS & REHABILITATION ●1. *UIR* ●2. *Individual Reparations* Grants ●3. *Symbolic Reparations*/Legal & Administrative Measures ●4. *Community Rehabilitation* ●5. *Institutional Reform* 2. INDIVIDUAL GRANTS ●3 Components ~*Acknowledgement* of suffering (50%) ~*Access to services* (25%) ~*Daily living costs* (25%) ●To be paid out every 6 months for 6 years, but gov't just paid a once off 3. SYMBOLIC REPARATIONS/LEGAL ADMINISTRATIVE MEASURES ●1. *Individual intervention*: ~issuing of death certificates ~exhumations/reburials & ceremonies ~headstones & tombstones ~expunging of criminal records ●2. *Community intervention*: ~renaming of streets & facilities ~memorial and monuments ~culturally appropriate ceremonies ● 3. *National intervention*: ~renaming of public facilities ~monuments & memorials ~a Day of Remembrance 4. COMMUNITY REHABILITATION ●*National demilitarisation ●*Resettlement of displaced* persons ●Construction of app. *local treatment centres* ●*Rehabilitation of perpetrators* & families ●Support for mental health services & *community-based victim support groups* ●*Skills training* ●*Specialised trauma counseling* services ●*Family based therapy* ●*Educational reform* at the national levels ●*Building and improvement of schools* ●*Provision of housing* 5. INSTITUTIONAL REFORM ●Report to *form public memory and be available* 'in the widest possible way' ●*Closing of* intolerable *gap between advantaged and disadvantaged*; ●*Transforming education* ●*Provision of shelter, clean water, health services* ●*Protection of socio-economic rights* ●All possible *measures to overcome racism* CONCLUSION ●The *delay* by government *to implement UIR and final reparations undermined the goal of reparations* by raising and then frustrating victims' expectations. ●*Government's input on reparations has been offhand and inconsistent*; failing victims, NGOs and other groups TJ MECHANISM 3: *Redistributive Justice* LAND REFORM ●1.*Restitution; returning of land that was taken away* by apartheid government ●2. *Redistribution; address highly skewed ownership of land* along racial lines ●*Tenure Reform; strengthen the rights of people whose land tenure is insecure* as a result of discriminating laws and practices in the past, i.e. farm workers BLACK ECONOMIC EMPOWERMENT (BEE/B-BBEE) ●Moral *initiative to redress past & pragmatic growth strategy* - *redistributive* policy ●*Empower black people*, women, youth, disabled and rural communities ●Achieve *substantial change in the racial composition of ownership* and management structures ●1 ½ million black people have moved into the middle class HIV/AIDS ●6.3 million living ●Women 15-24 yo have a 4x higher rate than men ●AIDS denialism (stigma, low testing, fear over loss of health insurance) PROTESTS ●Increase of student protests TJ MECHANISM 4: *Reconciliation* ●*Acknowledgement and acceptance* of the past *by all?* ●*Afrophobia* ●*Disintegration of the family* ~Drugs, gangsterism & violence ~Unemployment & poverty ~Lack of rural development ~HIV/Aids ●*Structural racism* ●*Corruption*

Rwanda

●Post-1994 Genocide: Left w/ ~800,000 dead & 2 million external refugees (mainly Hutu) Categories of Genocide ●First Category: ~*Planners, organisers*, instigators, supervisors of the genocide; ~*Leaders* at national, provincial or district level, *within political parties, army*, religious denominations or militia; ~*Well-known murderers* who distinguished themselves because of the zeal which characterised them in the killings or the excessive wickedness with which killings were carried out; ~People who committed rape or acts of sexual torture ●Second category: ~Authors, co-authors, *accomplices of deliberate homicides*, or of serious attacks which caused someone's death. ~People - with the intention of killing - *caused grievous bodily harm (GBH), but without actually causing death*. ●Third category: ~People who *committed criminal acts* or became an accomplice of serious attacks, *without the intention of causing death* ●Fourth category: ~People having committed *damage to property* INT'L CRIMINAL TRIBUNAL FOR RWANDA (ICTR) ●Created by UNSC in Nov 1994 ●Jurisdiction over genocidal acts committed in Rwanda between 1 Jan & 31 Dec 1994. ●Indicted several high officials among genocidaires & sentenced masterminds of genocide to life in prison ●*93 individuals indicted* by the ICTR ~*61 sentenced* ●*First ever tribunal to deliver verdicts*; ~To deliver a verdict on a genocide case ~Interpret definition of genocide as per 1948 Geneva Conventions ~*Recognise rape as a form of genocide* ~*'Media Case*'; convictions for broadcasting genocidal messages ●Its performance described as 'lamentable', as it *fails to reveal enough truth on design, mechanisms*, chronology, organisation, financing *& actors of the genocide* ●Accused of *mismanagement & corruption* ●Accused of *focusing only on Hutu population* NAT'L UNITY & RECONCILIATION (NURC) ●Made into law 1999 by Gov't of Nat'l Unity ●To *assist and foster* in the sensitisation of the Rwandan people *in reconciliation, unity & tolerance* ●To *eradicate the devastating consequences of the policies of discrimination & exclusion* from successive repressive regimes of Rwanda ●Main justification was *an educational function at the service of the communities* ●Programs: civic education, conflict mediation/management, support of community initiatives, media & communication SPECIAL NURC ACTIVITIES ●*Ingando*: *solidarity camps organised for different groups*, i.e. youth, women, widows, orphans, former Interahamwe & ex-FAR fighters, prisoners, political & community leaders ●*Abakangurambaga*: social & community *volunteers incorporated* in NURC civic education programme *to reinforce reconciliation activities*. ●*Ubusabane*: *Community celebration or get-together festivals* (i.e. traditional songs, poems & discussion) used in NURC's reconciliation activities to *enhance social cohesion* within communities. ●*Inyangamugayo*: *persons of integrity* or virtue *selected by their communities to provide counseling & resolve disputes*, promote reconciliation between enemies & adversaries. Also serve as judges in the Gacaca hearings. *●Ubudehe*: *Solidarity in poverty reduction*. Full participation of communities in *decision-making about their welfare*. It is being used by the government RWANDAN NAT'L COURT SYSTEM ●Began Dec 1996; justice system lacks human/material resources & capacity; By 2006 10,000 suspects had been tried ●Domestic *trials conducted by Tutsi-dominated government viewed as biased* by Hutus; ●*Prosecutions perceived* by Hutus *as mere vengeance*; ●2007 Death penalty abolished after unfair trials & public executions (i.e. of 22 accused on 28 April 1998.) ●*Revenge killings of released* detainees & relatives REPARATIONS ●FARG) established in 1998 by the government to: ~*Assist destitute or vulnerable* persons *with education, medical care etc*; ~*Facilitate appropriate income-generating activities* by committing 5%-6% of its national budget to this end. ●Fond d'indemnisation (*FIND*): allowed for in the 1996 Organic Law, *provides for payment of reparations* or restitution to victims of genocide. ~*International donors not keen to contribute* to reparations fund for over 400 000 identified survivors ●*Communal reparation* in the form of *education grants, medical care* & rebuilding of infrastructure is provided through gacaca courts & several instances. ●*Memorialisation, preservation & restoration of genocide sites* & documentation of events related to genocide are also seen as part of the reparation process