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Transitional Justice in Post-Conflict Situations

February 25, 2011

(Kathryn Pyle is a regular contributor to PhilanTopic. In her last post, she wrote about the "art of memory.")

Scales_justice The events of the past several weeks in Tunisia, Egypt, and the broader Middle East-North Africa region have been riveting and, at times, appalling, particularly in Libya. As other commentators have noted, each uprising has been unique, emerging from that country’s history, culture, and demographics. The wildfire nature of the uprisings; the creative use of Facebook, Twitter, cell phones, and the Internet; and the role of youth have all contributed to an extraordinary moment in world history that has been in turn heroic, horrific, inspiring -- and, at the end of the day, familiar.

Take away the new media and other features peculiar to this time and place and the similarities with opposition movements in Latin America in the 1970s and 1980s, with independence movements on the African continent in the 1960s, and with other pro-democracy uprisings around the world over the last hundred years are striking.

As in those earlier conflicts, the big question today is what happens next. Although the story is far from over -- strongmen in Tunisia and Egypt may be gone, but economic issues and the political structure they created remain -- reformers in those countries are turning the page on a new chapter. Nongovernmental organizations that work in the social, economic, and political sphere know that what happens in the post-conflict period is crucial over the long run.

The International Center for Transitional Justice was founded in 2000 by human rights activists and legal scholars with support from the Ford Foundation, MacArthur Foundation, Carnegie Corporation of New York, Rockefeller Brothers Fund, and Andrus Family Fund. (The center's work currently is supported by a variety of ministries and private and community foundations.) Transitional justice advocacy organizations like the center argue that it's possible to address the crimes perpetrated by toppled dictators and brutal regimes while nurturing the fragile, more inclusive political cultures that typically emerge after years of repression -- indeed, that in the interests of long-term stability and the promotion of human rights, it is necessary to pursue a measure of justice and accountability. ICTJ, along with university-based scholars and other human rights groups, has been instrumental in developing and defining this concept through the documentation of post-conflict processes that resolve many of the thorny issues associated with torture and abuse.

At the moment all eyes are on Libya, as the United Nations, Western governments, and nongovernmental organizations around the world call on Colonel Muammar al-Qaddafi, the country's erratic dictator, to step down and order security personnel and mercenaries loyal to him to refrain from violence. The murder of peaceful protesters and members of the opposition (some estimates put the number as high as a thousand) is widely viewed as a crime against humanity, and as such human rights groups are calling on the international community to insure that justice prevails.

"There must be no impunity for those engaged in the violent repression of fundamental human rights," David Tolbert, president of the New York City-based ICTJ, said earlier this week in a statement. "Justice for these heinous acts [in Libya] is an important first step towards achieving accountability for past abuses, truth, and rule of law. This is a crucial element of the better future which Libyan demonstrators are seeking."

Some Libyan soldiers have refused to take up arms against their fellow Libyans, and a growing number of diplomats and government officials, including Libya's deputy ambassador at the United Nations, Ibrahim Dabbashi, have abandoned the regime. "We are sure that what is going on now in Libya is crimes against humanity and crimes of war," Dabbashi said on Monday, before asking the International Criminal Court to charge Qaddafi for those crimes.

Like other international justice systems, including the Inter-American Commission and Court on Human Rights, the ICC was set up as a court of last resort for situations where a lack of consensus, political will, and/or an adequate justice system mitigated against the investigation of serious crimes against humanity. The court began operations in 2002, with 114 countries supporting its creation through treaties. (For more information about the court's formation and mission, be sure to see the documentary film The Reckoning.)

Earlier this week, Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch, commented on Dabbashi's request. "Libya is not a party to the ICC but the court's statute allows a non-state party to declare at any time that it accepts the court's jurisdiction for such crimes within its borders."

In an article in the Los Angeles Times on Thursday, Whitson connected the absence of a vigorous civil society in Libya to the country's isolation from much of the world community over recent decades. "Political associations, human rights organizations, independent professional associations, or trade unions were all strictly proscribed and organized opposition to the 'ideology of the 1969 revolution' was punishable by death."

The ICTJ's Tolbert, in an opinion piece in Egyptian-based Ahram Online, argues strongly for justice and accountability and against amnesty for human rights violations, noting that the experiences of other countries suggest that such measures "inevitably come back to haunt the societies emerging from dictatorial rule."

Indeed, Amnesty International, in a recent report (78 pages, PDF) on post-conflict (1991-95) developments in Croatia, observed that "war crimes were committed by both sides. Twenty years later, many of the crimes remain unaddressed." Despite prosecutions in Croatia, Serbia, and Bosnia and Herzegovina, and in the International Criminal Tribunal for the former Yugoslavia, the report notes that an atmosphere of impunity and intimidation of witnesses continues to prevent justice from being done, creating an atmosphere of fear that undermines the rule of law. The long-term consequences for social relations, political life, and economic development are devastating.

Tolbert, in the Ahram Online article, suggests how best to move forward. "Our experience has documented justice mechanisms that have worked to provide long-term stability in various contexts across the globe. There is no legitimate reason why these lessons would not be drawn upon in Egypt, Tunisia, and the rest of the region."

In addition to prosecution, such mechanisms include truth-finding and/or the establishment of a truth commission; a reintegration process back into society of soldiers and other perpetrators of human rights violations; reparations to families of the victims; and the creation of monuments and preservation of memory.

These steps, writes Tolbert, "will be key if Egyptians are to regain faith in the rule of law and start trusting government institutions."

Part of the truth-finding process involves access to military archives. "This record is of fundamental importance for any future justice effort," writes Tolbert, "and must be protected and made accessible to relevant bodies whose mandate and authority will draw from consultations with all segments of society, primarily the victims."

As professionals in the human rights and transitional justice area have noted, and as family members of victims universally report, the need for truth never dies and the desire for justice is never extinguished. Truth commissions and prosecutions have a substantial history, beginning with the Nuremburg Trials after World War II and including, over the last couple of decades, South Africa, Rwanda, East Timor, Cambodia, and many other countries. One can hope that the lessons learned from these efforts will prove to be invaluable as the current turmoil in North Africa and the Middle East is channeled into the creation of more democratic political systems and a greater willingness to address and resolve the roots of past conflicts.

-- Kathryn Pyle

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Posted by Nick Scott  |   March 01, 2011 at 04:54 PM

Great post Kathryn,

I wonder to what extent tribal divisions within Libya will complicated the reconciliation process -- especially given Qaddafi's penchant for drawing most of his paramilitary forces from the same three loyal tribes.

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