Transcript - Peace, Justice - or Both

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MARK SOMMER: Peace or justice? That question takes on an anguished poignancy these days in war ravaged societies from Bosnia and Rwanda to Sudan and Sierra Leone.

PRISCILLIA HAYNER: Sort of by the very definition, you’re sitting down to negotiate peace with people who are now peacemakers, but have been basically the war-makers, right?

MARK SOMMER: Peace negotiators and human rights advocates struggle to reconcile the often competing priorities of ending the bloodshed and obtaining justice for the victims.

MARIEKE WIERDA: And then the clan of the perpetrator, in a form of apology, invites the clan of the victim to drink from the bitterroot, which it does taste very bitter. But the swallowing of this liquid symbolizes putting behind them the bitterness of the grievance.

MARK SOMMER: Today on A World of Possibilities, “Peace, Justice, or Both?” We examine how efforts to attain peace without sacrificing justice for victims, and accountability for perpetrators have fared in societies whose weak and often corrupt legal structures have been decimated by war.

I’m Mark Sommer. Welcome to A World of Possibilities.

Marieke Wierda has struggled with just such questions, as director of the prosecutions program at the International Center for Transitional Justice. She’s helped establish and monitor judicial processes for the U.N. and other agencies in war-torn societies like Uganda, Sierra Leone, Afghanistan, and the former Yugoslavia. Marieke joins us from her office in Beirut to explain the difference between retributive and restorative justice.

MARIEKE WIERDA: If one were to typecast very simply, then often one says retributive is punishment, whereas restorative is more victim-centered and looks at restoring the relationship. But in reality, in most societies, I think it’s more accurate to think of retributive justice as the state administering justice, and restorative justice tends to be more horizontal.

So most criminal law systems, including in The United States, have elements of both, so that they’re neither purely oriented towards punishment. They may have elements, for instance, of perpetrator/victim mediation or-- But likewise, they’re also not completely restorative, because sometimes there’s a recognition that there are normative values that have to be reinforced through the application of criminal justice.

And so one of the goals of our center I think is to help to get people away from thinking about this in a dichotomous form. So it’s not that you have to choose. In fact, you know, in situations where there is really massive or widespread human rights abuse, you in fact need a whole range of approaches to deal with those crimes, because they’ve been very sociologically complex. So you need both elements of criminal law, but you would also need, you know, elements of reconciliation or more reintegration oriented activity.

MARK SOMMER: Can you take us into a situation that you’ve seen where the perpetrators and the victims have been reconciled?

MARIEKE WIERDA: Well, also it’s-- I think it’s in many places, although I think one has to be very careful with the term ‘reconciliation’. Because I think because of South Africa-- And there’s some misconceptions about what it really means to be reconciled, so. People tend to have a public image of South Africa that what happened was that many people who were involved in Apartheid government came forward and kind of unburdened themselves and asked unreservedly for forgiveness for what they had done.

This is not what happened at all. In fact, on the societal level, rather than individual level, the process tends to be more stale than that. And perpetrators I think very often, what they seek to do is if they’re given an opportunity to give their views, they very often use the occasion to simply justify what they have done, and to elaborate on it, and somehow to try to make people believe that they were right in what they’ve done.

So I think one has to be very careful about this concept, reconciliation. But likewise (and this particularly applies to Uganda) I think in some situations, we should perhaps not be entirely rigid of our categories of victim/perpetrator. Because one can really think of situations. And I’ve seen many of these cases in Uganda.

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People were abducted at a very young age, and then were forced to do terrible things under a great deal of duress, i.e., you know, they would be threatened to be killed if they don’t do these things. And as a consequence, they may emerge out of the bush some years later.

But they are truly, I think in every respect, both perpetrators and victim. And I think what I’ve seen in Uganda, both amongst individuals and on a greater community level, is that people really acknowledge those moral differences. And they say, “We’re willing to welcome people back if they were not the masterminds of this violence. But if they were somehow trapped in the circumstances, and did things that they may really regret, and so those people can become part of our society again. But we may choose to act differently to people who really planned, organized, instigated this kind of violence. And that I think is a distinction we see in many society.

MARK SOMMER: Several years ago, we interviewed a young man who later became famous for writing a book about his experiences as a child soldier in Sierra Leone.

MARIEKE WIERDA: Yeah, I know him. I know him well, in fact — Ishmael Beah is his name I think, no?

MARK SOMMER: It is indeed.

MARIEKE WIERDA: Yeah. Yeah.

MARK SOMMER: And he spoke of being essentially coerced into becoming a child soldier, and then being essentially brutalized by drugs and intimidation into doing these atrocious things. And then once they were taken out, I think by a U.N. group and put in camps where they were going to be treated better, the first thing they did was to attack the camps, because they just had so much twisted anger in them. So is that a large challenge as well?

MARIEKE WIERDA: Absolutely. And I think there are similar instances in Uganda, again. I mean, in Uganda for instance, there are these reintegration centers where children spend time when they first come out of the bush. And one hears many stories I think of the staff of those centers, you know, having to cope with violent outbursts and really having to re-socialize those children as part of life.

And the pity is I think that those are aspects of conflicts which often get, to some extent, neglected by the international community, because in essence, what people want is for people to put down their guns, and then everyone goes home, and then, you know, live happily ever after. But one always hears repeatedly that this reintegration, which really has to be long-term and very, very carefully monitored, and, you know, requires a lot of support, psychological, social, and otherwise, often those aspects are somewhat neglected.

Now, in Ishmael’s book, I recall that there were certain individuals who he met during those final months when he was emerging out of the RUS. There were some individuals who really gave him a lot of time and attention. And I think those people, you know, the role of just a few, one or two mentor type individuals, can make an enormous difference to these vulnerable youth.

MARK SOMMER: Yes. I can see how in the-- I think it’s called 3-D security-- Was it demobilization, disarmament, and--

MARIEKE WIERDA: --reintegration.

MARK SOMMER: --and reintegration. The reintegration part does get short shrift because it’s harder. You know, it’s one thing to take people’s weapons away. And that’s hard enough. But to actually work with them on their complex emotions, that has to be very hard work. Have you been involved in that?

MARIEKE WIERDA: It is hard work. And somehow this is reflected in a small anecdote. Because in the U.N., as they took on different missions, including Sierra Leone and then DRC, they kept adding ‘R’s to the DDRs. So in Sierra Leone, DDR became DDRR. And then later it became DDRRR, which pointed to-- I don't know what all the ‘R’s stood for right now. But they were all aspects of kind of this reintegration, this reconciliation, if you will. So it’s, in a way, you know, portrays that people struggle with finding the right approach on this.

Now in Uganda, this debate has had a very interesting dimension, because the traditional leaders strongly argue that traditional ceremony should form a part of this. And that’s really been a debate. We’ve seen it elsewhere as well, but it’s assumed a new dimension in Uganda.

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And so they really argue for what are in fact, you know, a kind of, well, ritualistic aspects of reintegration that are highly symbolic.

And the most well-known of these ceremonies is the sharing of the bitterroot, the matta aput(?). So what happens in essence is that, the clan of a victim and the clan of a perpetrator come together and negotiate. And they agree on the harm that was done. And then the clan of the perpetrator, in a form of apology, invites the clan of the victim to drink from the bitterroot, which is a stamped root from a particular plant, which apparently does taste very bitter.

But the swallowing of this liquid symbolizes putting behind them bitterness of the grievance. And after that, they share a meal, which symbolizes their reconciliation or their willingness to go forward in social harmony. And that’s just one of many, many ceremonies that have been advocated in the Ugandan context to assist with reintegration.

Now, many of these things still have to be put to the test. It’s very, very early days. And at the moment, there hasn’t been the capacity to really practice them on a widespread level. But it does, I think add something new and interesting to that debate.

MARK SOMMER: Marieke Wierda, director of the prosecutions program at the International Center for Transitional Justice. When we return, we’ll hear more about one of those reintegration ceremonies. You’re listening to A World of Possibilities. Stay with us.

ANNOUNCER: This is A World of Possibilities. If you wish to contact us, please direct emails to info@aworldofpossibilities.org. This is the WFMT Radio Network.

MARK SOMMER: Welcome back to A World of Possibilities. I’m Mark Sommer. Many techniques and institutions have been developed in recent decades to bring justice and accountability to the often chaotic aftermath of conflict. But sometimes it’s the ancestral rituals that are the most effective in healing the personal and communal wounds of war.

Mohamed Suma has witnessed such ceremonies in the course of his work as director of the Sierra Leone Court Monitoring Program. Trained in law, history, and sociology, he endured a decade-long civil war in his country and was moved to join the campaign against injustice.

Mohamed Suma joins us by phone from his office in Freetown, Sierra Leone.

Tell us about these symbolic reconciliation ceremonies? Did you ever attend any? And if so, describe one for us.

MOHAMED SUMA: After a perpetrator confessing to a group of people, the commissioners, you know, would bring both parties together. And in that process, the perpetrator will ask for forgiveness ...(inaudible). But before the perpetrator ...(inaudible) will have to lie flat on the floor, hold the feet of the victims and request for their forgiveness. The victims are expected to bow down and raise the perpetrator, and tell the perpetrator how they have forgiven the perpetrator.

Following that will be pouring of libation to the guests. And that is followed by lot of hugging, crying, kissing, and sometimes feasting, you know? So this is what happens during the process of reconciliation.

MARK SOMMER: Do these reconciliation ceremonies come from traditional ceremonies within the culture? Or are they being invented today from the ground up?

MOHAMED SUMA: No. This is from traditional system(?), you know? Because before ...(inaudible). Today the model of reconciliation ...(inaudible) primarily on the particular communities’ system of reconciliation.

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It’s more of the reconciliation rather than of punitive. Because we find out that even the method of punishing people, you know, you bring that person ...(inaudible) mainly(?), instead of boasting that you can get away with it, instead of projecting that kind of image, you know? But ...(inaudible) and requesting for forgiveness is a form of punishment, but a punishment which leads to reconciliation, you know? This is the way it is ...(inaudible) in communities here.

And it doesn’t end there. Once you have done that, you are expected to remain-- you know, to remain like that, in a sense that you should not repeat this kind of crime. That’s why we(?) normally(?) figure(?) we forgive and forget. The forgetfulness, the concept of forgetfulness does not mean that they will forget the actual crime that occurred, but they expect the perpetrator not to repeat.

Because if you repeat the crimes that you committed during the conflict...(inaudible). So this is the concept of forgetfulness we have here, when we say we forgive and forget.

MARK SOMMER: Mohamed Suma, director of the Sierra Leone Court Monitoring Program.

The International Criminal Court has sometimes been faulted by its critics for holding developing countries to standards of accountability it fails to apply to advanced industrial nations. Nick Grono acknowledges some inconsistencies, but points out that many African nations have joined the ICC with the understanding that it could help bring accountability to the crimes of their own former leaders.

Nick is deputy president of the International Crisis Group, and joins us to discuss his experience of transitional justice efforts from his office in Brussels.

NICK GRONO: Some thirty African states have signed up to the International Criminal Court on the basis that it was often African leaders committing atrocities against their own people and accountability is a way of dealing and responding to that. But you have the theory and then you have the practice. I mean, it’s also important to remember, it was the Security Council that asked the International Criminal Court to look into Sudan and Tanzania and Benin with the African members of the Security Council at the time. And they supported the request.

But then when you strike the reality of an African head of state being indicted and other issues being thrown into the mix, concerns that perhaps the ICC has focused unduly on African conflicts, concerns about double standards, in particular when people see conflicts elsewhere that aren’t receiving the level of attention from the International Criminal Court, then it becomes difficult.

And the gut reflex has been, “We will support one of our own leaders,” even though, you know, a number of African states are very concerned about what is happening in Darfur, and have expressed concerns in the past. But at the moment, their reaction has been to rally around Sudan. It will be interesting to see whether there are greater divisions within African states over time if, for instance, Sudan continues to target its own population.

MARK SOMMER: How do you view that critique, I mean, from the point of view of African heads of state? Do they think of it as essentially a racist policy on the part of the ICC?

NICK GRONO: It’s difficult to get to its heart, because if you break it down, if you look at it, the ICC has what are called active investigations, formal investigations going on into four African countries. There’s Sudan, Uganda, Democratic Republic of Congo, and the Central African Republic. Now leading aside Sudan, each of those other three countries have asked the ICC to come in. So the ICC hasn’t intervened against the-- you know, against the wishes of those countries. It’s their own governments that have asked the ICC to conduct the investigation. So it’s very difficult to argue that this is some kind of colonial or imperialist conspiracy.

Where it’s all crystallized is the fact that it’s proceeding against Darfur, against the head of state there, and against the wishes of the Sudanese state. So that’s one issue. Other countries have different agendas. Rwanda is very concerned about a concept called universal jurisdiction which allows countries to proceed against individuals who have committed crimes against humanity, war crimes, very, very serious crimes, whether or not there’s any connection to the state in question.

So for instance, if a Rwandan accused of very serious crimes steps into Germany and Germany decides to prosecute that person, there’s some doctrine that allows the prosecution to go ahead. And Rwanda has expressed grave concern about prosecutions that France and Spain are doing on this basis.

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So you have a coming together of various agendas. And that’s what we’re seeing right now.

MARK SOMMER: The indictment of President Bashir and the reaction on his part point up the tension that seems to exist between trying to achieve accountability and justice, and trying to reach peace. This happens in numerous different circumstances. How do you see-- Is there a way to optimize the two? Obviously if you start to try to maximize one, you start to lose the other. So how do you think about that?

NICK GRONO: Well, a starting point is to say that both peace and justice are fundamental, but can’t always be achieved at the same time. It’s particularly difficult when you have an active, ongoing conflict, because often to end that conflict, you need to do a deal with the parties. And it’s the parties themselves that may have committed atrocities. And they’re not going to sign up to a peace deal if it means that they’re then hauled off to an international tribunal or so on.

But the tension is sometimes overstated. For instance, there are often pressures on the parties to look at other justice mechanisms, other than the issue of international prosecution. So even in Sudan, you know, the Sudanese government has made noises about looking into abuses committed in Darfur. And so sometimes there is pressure, and particularly the threat of international prosecution that will drive certain mechanisms to take place in that country.

You also run into the issue of, can you really have a sustainable peace if you don’t deal with the issues of impunity and address some of the grievances that have driven the conflict. So I think what you have to do is look at each case and look at the particular circumstances.

To take one example, the case of the special court in Sierra Leone and president Charles Taylor of Liberia. Charles Taylor was indicted by the special court at a time when he was president. And there were claims that that may worsen the conflict that was going on in Liberia at the time. But what we found in fact happened is it played a role in de-legitimizing him. And soon after that indictment, he effectively fled from Monrovia and took asylum in Nigeria, so. It’s a difficult interplay. And I don't think there are any-- there’s not one size fits all answer to this question.

MARK SOMMER: We interviewed John Norris, the director of a human rights organization called Enough. And he told us about an audience he had with Charles Taylor when he was still in office. And it was somewhere on the palatial grounds of the palace, the decaying palace. And there were peacocks strutting around and soldiers in the distance. But he was a very pleasant, even charming man. And he, in seeking to justify, you know, what he had done, he said, “You should go to this particular village and see how much they actually support my rule.”

And when John Norris demurred, said he had to leave the next day, the next morning he woke up and found an arrest warrant for him, and had to flee in a hurry. It seemed to say to me that such men are extremely unpredictable, and that you’re dealing with someone who, on one level, can be extremely shrewd, but on another level, can be quite mad.

NICK GRONO: Well, I mean, it’s funny. John’s a good friend of mine. And in fact, he was working for International Crisis Group, my organization, at the time, doing research for our report on Liberia, so.

MARK SOMMER: Well, then you know this better than I. I’m sorry, I [simultaneous conversation]--

NICK GRONO: It’s all right. No, no, it’s a good example. But I think you have to-- I mean, you can have capriciousness in individual acts while a greater rationality overall. And someone like Charles Taylor was very, very successful at promoting, you know, kind of running the conflict, at funding the conflict, at getting access to the diamonds in Sierra Leone to fuel his own conflict of destabilizing neighboring countries.

There is a calculation there. I mean, again, look at president Bashir. To run a campaign that involves mobilization of the Arab militias, the Janjaweed, the military capabilities of Sudan to basically drive several million people from their homes, and into, have a diplomatic campaign to ensure that you’ve got political cover on all of this, I mean, these are all sophisticated, calculated acts. They’re not acts of a madman in the sense of defining it as someone who just, you know, is doing-- making completely random decisions.

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So I think you can have both. And I think it’s wrong. I mean, look at president Mugabe. I mean, president Mugabe, you can look at as an example of deterrence in the sense that-- and it’s a bad example for deterrence, but president Mugabe has, on numerous occasions said, “I saw what happened to Charles Taylor.” And he is frightened that if he ever surrenders power in Zimbabwe, he will be hauled up before an international tribunal, even though there is no international tribunal that has jurisdiction over Zimbabwe and what’s gone on there.

So, you know, one of the reasons he’s absolutely determined to cling onto power is because of his fear of the consequences. Another example is Muammar Gaddafi, who, when Charles Taylor was handed over to the special courts, said, “Look — this is what can happen to heads of state. How terrible this is.” When in fact what it demonstrates is that there potentially can be a cost.

So these people who, you know, have been responsible for some fairly horrendous decisions are impacted upon by this issue.

MARK SOMMER: We know from-- well, even from World War II, let's say, East Germany. I mean, there have been some very interesting films done in recent times, German films by and large, that have looked at both the informants within repressive regimes that last really until about 1989 or so. But in addition, the difficulty of former warring factions or victims and perpetrators continuing to live beside one another after having, in very intimate ways, been embroiled in slaughter and atrocity. I still find it very difficult to imagine how one could go back to living normally among people, knowing that your neighbor may have killed your brother.

NICK GRONO: Yeah, I share the difficulty. And I think it’s one of the major challenges for the societies that are going through this transition from partly authoritarian/autocratic/dictatorial regimes or conflict-ridden regimes. I mean, to take a different example from, you know, the Soviet countries, to look at what happened in Rwanda and how one can build a peace knowing that one’s neighbors may have been responsible for the death of one’s family is a hugely fraught exercise. And I suspect that the ultimate and only kind of genuine solution is, it’s a very, very, very long passage of time to allow people to move beyond that.

But there’s a whole theory of justice that says, unless you deal with justice issues, how do you challenge the-- I mean, one idea of prosecuting someone is to challenge the desire for revenge. So instead of allowing people to pursue vengeance vigilante style, you put people on trial, even if it’s just putting those most responsible. It allows an accounting for what has happened. It’s a way of allowing society to move on, to say, “Well, not everyone has been held responsible. And maybe my neighbor hasn’t been held responsible for his crimes, but the person who directed his activities or the personal head of state that was responsible has at least paid a price.” And that goes some way towards allowing societies to come to grips with some of these issues. I mean, that’s a lot of the thinking and the theory behind criminal justice in these situations.

MARK SOMMER: Nick Grono, deputy president of the International Crisis Group. For more information about transitional justice, visit our website at AWorldOfPossibilities.org. This program is distributed by the WFMT Radio Network. Production of this special series on transitional justice is supported by a grant from the Compton Foundation. I’m Mark Sommer.

When we return, we’ll hear more about peace, justice, and the tribunals that seek to bring them together. Stay with us.

ANNOUNCER: We’d like to hear your thoughts about this program. Please write us at info@aworldofpossibilities.org. This is the WFMT Radio Network.

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MARK SOMMER: Welcome back to A World of Possibilities. I’m Mark Sommer. In recent statements, the Obama Administration has made clear that in its continuing commitment to the Afghan war, human rights will take a back seat to the defeat of the Taliban. For Nader Nadery, Afghanistan’s leading human rights activist, this comes as a bitter betrayal of the commitment The United States made to establishing human rights and the rule of law when it first invaded the country in 2001.

Nader has many times risked his life opposing both the Taliban and the current regime in Kabul. In 1998, he was publicly beaten by the Taliban and tortured in prison for the crime of refusing to wear a turban. Today, as head of the country’s Independent Human Rights Commission, he openly condemns abuses by the warlords whom he asserts now effectively run the Afghan government.

Nader Nadery joins us by phone while visiting Geneva, Switzerland.

MARK SOMMER: Defense Secretary Robert Gates recently said, “We’re not going to try to create a Valhalla in Afghanistan.” It appears that the signal is, we’re going to raise the commitment of troops, but we’re not that interested in democracy or human rights. We’re basically interested in putting down the Taliban and getting at Al Qaeda. With that abandonment of even the rhetoric of trying to deal with these other priorities, do you think that’s going to further reduce the support for the enforcement of human rights in Afghanistan?

NADER NADERY: Well, of course that would further exacerbate the situation, that recently we hear these kind of rhetorics, and that somehow now it seems to be translated in some policy actions that Afghans do not deserve a democracy, Afghans do not-- we should not spend time making Afghanistan a place where there’s human rights and justice and democratic institution. And most of the population in Afghanistan feel that they are betrayed in a way, that the first place, there was high promises and expectation that, we would work with the Afghans to build a democratic state and to clean up the miseries of the past and to look at a prosperous future of the nation and Afghanistan.

MARK SOMMER: I mean, what would you advise someone like the Obama Administration when it has limited resources, and the Taliban appears to be growing by leaps and bounds? And yet, as you say, the more we support the corrupt warlords to oppose the Taliban, the more we recruit for the Taliban because of the abuses that these warlords commit.

NADER NADERY: Of course when we talk about our expectation in Afghanistan, it’s not that we expect that, in the course of a few years, we become a very full-fledged democracy, all the issues to be gone, and we become a stable state. We do understand that there are certain limitations to the number of the boots to be on the ground, to the amount of money to be given of aid or otherwise to Afghanistan.

A sustainable way of getting rid of the Taliban and terrorist groups, and ending the threats coming out of Afghanistan to The United States would be first, helping Afghans to build credible institutions that are trusted by its population. The war and the conflict would not end if we promote again(?) and invest on the corrupt, in most cases, drug lords, and, in most cases, warlords with blood in their hands, and support them and gave them more of authority to operate in an area where they would continue abusing that authority and marginalizing more of the population, both from The United States and the Afghan government.

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And the end result, the short-term would be that a very fragile stability, probably most of the frontline battle that the Taliban are fighting today would reduce, because most of the elements of the Taliban would be not able to hold on number of the frontlines and the districts. But the long-term and the end result would be totally in the contrary of the objective. And that would be that majority of the population would become more disillusioned. They would lose more confident. And it would become more of a support-- a reason to support the Taliban against the warlords and the criminals. And then in one or another way, it would become a source of chaos and the collapse of this very already ...(inaudible) state that we have.

MARK SOMMER: When you look forward in time to Afghanistan five or ten years down the line, given current trends, what do you imagine it becoming?

NADER NADERY: Well if the current trends continue, if the Afghan government continue to fail to address its weaknesses, corruption, the nepotism, the weakness in the leadership, if that continue, if the policy of accommodation continue, if the rule of the warlords continue, and if the international community, as it seem, to seek quick fixes, to seek an exit strategy, Afghanistan five years down the road would be, again, an Afghanistan that it was in 1990s, a place where all the mafia groups, including the terrorist groups, would join together and become a hub for anything bad that was coming out of Afghanistan, that time. It would be much more worser, much more stronger, and much more bigger and much more empowered and confident.

And most of the achievements that we’ve made in the last seven years would gone, and there will be no place for human rights and even basic freedoms for woman and majority of Afghans.

But if I’m still-- Because most of the time, when it gets really difficult, and I look to some of the achievements we have had, I still remain optimist. Looking to the new generation in Afghanistan and especially with the new force of educated people that either return to Afghanistan or being educated in the last seven years-- A large number of Afghans have educated outside Afghanistan. Most of them return back. Looking to that force of educated people, looking to a free and vibrant media in Afghanistan, looking to an(?) entire(?)-- and institutions of civil society that emerged and slowly finding its way to be institutionalized, I still hope for some level of hope, that this may get itself to a kind of movement that would not allow a collapse and failure of Afghanistan to a level that the worse case scenario that I have just explained.

But that requires not only for us Afghans to get our act together, to utilize some of the opportunities that are ahead of us, with a very narrow window of opportunity that have left for us, but as well the international community, for them to avoid being cynical about the future of the country, about the ability of Afghanistan and Afghans, and about the aspiration and hopes and expectation of Afghans, for them to not lower their expectation about Afghanistan, as Secretary Gates says, that we can’t make-- we can’t engage in state building and make them a better place.

Some of the Europeans says that we just contain the war and gave up most of the things to the Taliban. For them not to focus in this way, and for us Afghans not to-- just leave everything to international community, if we work together and work faithfully, I think five years down the road, Afghanistan would, if not be a very full fledged functioning democracy with at least basis for democratic state, would be established.

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MARK SOMMER: Nader Nadery, prominent Afghan human rights activist and head of the Afghan Independent Human Rights Commission. He was speaking with us from Geneva, Switzerland. It’s A World of Possibilities. More after this short break.

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MARK SOMMER: Welcome back to A World of Possibilities. I’m Mark Sommer. Crucial to the success of peace in the aftermath of divisive conflicts are the terms of the negotiations that determine who gets what, and who, if anyone, is held accountable for the crimes committed. Unfortunately, those at the negotiating table usually are those who’ve perpetrated the crimes, while those who were their victims often remain locked out of the process.

Under such circumstances, a certain kind of peace may be achieved, but often at the expense of justice. Priscilla Hayner has studied peace negotiations in many post-conflict societies, and has observed both what has and hasn’t worked. A cofounder of the International Center for Transitional Justice, she directs its peace and justice program, and joins us from New York City.

You have actually focused in on the peace negotiations that occur after wars in a variety of places like Liberia, Sierra Leone, the Democratic Republic of the Congo, Nepal, and Indonesia. Tell us about a particular negotiation that illustrates the tension that occurs between the desire for peace and the desire for accountability and justice.

PRISCILLIA HAYNER: Well perhaps one case that jumps to mind and actually goes back ten years is that of Sierra Leone. And in fact things have changed over the last ten years, so it’s a good place to start. But Sierra Leone went into peace negotiations in 1999, fresh out of a very serious attack on the capital by the rebel forces who clearly had a lot of military power and threatened the government. They were verily pushed back. And they’re a quite-- rebel forces with quite a significantly bad human rights record, which had the practice of amputating limbs in the course of battle when they ran into civilians, for example.

The peace talks starts therefore with a government weak politically and militarily, and dependent on its neighbors in the region militarily to keep the rebels at bay and not have the country thrown over entirely, the government thrown over. So you have a very difficult situation, perhaps one of the most difficult one. In fact, it’s very hard to negotiate justice, and especially criminal justice, where the very people who are going to be sitting down at the peace table are those that are the most responsible for the most serious crimes that one would think of. That’s where the tension around peace and justice comes to the fore during talks.

MARK SOMMER: I’ve been wondering about that. I mean, so often in these negotiations, all the parties that are in the negotiations are in fact those who’ve committed the crimes. You take a place like Colombia, the government, the paramilitaries, the guerrillas, and nobody’s a white hat here. But the victims have no place at the table. This is always true, isn’t it?

PRISCILLIA HAYNER: Well, luckily it’s not always true. It’s less likely that victims, per se, as victims, are sitting at the table. But it’s now not entirely uncommon for independent actors, especially non-governmental human rights organizations or other civil society organizations to perhaps have a seat at the table. They may be invited as observers, but they sit and they can advise. And they can meet with and lobby the parties between sessions. Or they may actually be official delegates.

I mean, there’s a bit of an irony, right? I mean, you are sitting down, sort of by the very definition, you’re sitting down to negotiate peace with people who are now peacemakers, but have been basically the war-makers, right?

[00:45:06]

The people that made the war are the only ones-- and are still driving the war, are the only ones with the power to stop it, really, I mean unless there’s a military victory. But in so many cases, there isn’t. And it’s a stalemate or it’s continued fighting and continued fighting. So you have to be speaking with the people who are the most responsible for the war and all of the abuses that went along with the war. So it’s the nature of the beast, unfortunately, is to speak with those very people. And those very people, you know, are not likely to be the most innocent in terms of best practices, in virtually all contexts.

The challenge is, as you say, to somehow reach beyond the interests of the people that were driving the war, and those people that, yes, they do in fact have the power to decide whether there will be peace in the future, or whether there will be more fighting and more killing. And that reality is what drives the motivation of mediators to prioritize almost anything to get the violence to stop. And one has to understand that as a priority. At the same time, I think we all need to think more creatively about how to get beyond those interests and somehow empower a broader set of voices to take part in these processes.

Something has changed in the last years, because now we have of course the International Criminal Court, which reaches many states and has jurisdiction in the majority now of countries in the world, although certainly not all. And we also have had regional courts that have come up, or ad hoc courts that have been developed such as, in the case of West Africa, the special court for Sierra Leone, which not only was looking at crimes that took place by Sierra Leoneans, but by others which were involved in the Sierra Leone war.

MARK SOMMER: How, by and large, are these peace negotiations and truth commissions viewed by the people in the country who are not part of them? How are they viewed while they’re going on? Do people pay attention to them? And how are they viewed afterwards by those who’ve had to endure these wars and atrocities, and who now have to endure an aftermath in which not much is different?

PRISCILLIA HAYNER: For truth commissions, often there is considerable public engagement in the commission itself, especially by the direct victims and survivors. They’re invited to provide their story. The commission and staff of the truth commission are likely to travel the country and take individual testimony from many, many victims, often 10,000, 15,000 or more individual statements which they record and they study and analyze and look at the patterns, as well as individual cases.

So I have often heard victims and survivors talk about how important it was for them to have something that was a state-sanctioned body, something that represented actually an investigation by the state, actually come to them and listen to their story and recognize that and respect that.

Now, that’s not sufficient, but it’s an important first step. And I think from that, people then recognize that perhaps accountability of a criminal sense or in terms of reparations to victims may follow. So the process itself is often engaged with at a fairly intensive level by the public, with often public airing on the radio or television of public hearings, and a lot of press coverage as the commission is underway.

Afterwards, the demand for real reform and for recommendations to be actually put in place is usually also quite high. And that’s where the challenge comes in, as to how to get these various reforms or policies in place. Although there’s been some examples of truth commissions recommending, and in some cases, helping to put in place reparations for victims, or helping after a truth commission has ended to put in place a reparations program. And that can also be very, very important for victims.

[00:49:48]

MARK SOMMER: Perhaps because the media pay more attention now than they once did to these issues, these conflicts in seemingly remote places, and to the human rights dimensions of them, it seems like there’s more than ever of these kinds of struggles and atrocities. At the same time, it does seem like there’s beginning to be an infrastructure of international law that has at least modest powers of enforcement. If you look down the line ten years or so, what do you see in that sort of parallel developments in opposite directions?

PRISCILLIA HAYNER: It’s true. I often wonder if we’re not midstream. And if we are midstream, and maybe not even halfway down the stream yet, can we not look to the future and try to see where we’re going? I think where we’re going, although it will be in fits and starts, is in ten years, we’ll have a much more solid sense of an international criminal justice system in place, and also I think much more clear and solid standards as to what an accountability package or policy should look like. That we’re now in a place which is quite different from ten years ago or even five years ago. We’re not in a place where the idea of granting impunity for atrocious crimes is really not very acceptable anymore.

That’s changed quickly and radically. But we still are struggling with what system one can put in place to respond to this demand. I think in another ten years, we will be then in a place where I think we’ll be seeing a stronger International Criminal Court, which in part will be stronger because it has a history behind it. It’s still a new institution. It’s undertaking its very first case in court right now. It’s still working out its rules and procedures in some areas with each case that it comes upon.

And at the international level, I mean, I think the first prize in terms of the impact of the International Criminal Court is to strengthen domestic systems of criminal justice. So if courts, if trials can go forward at the national level, the ICC will and must, by its own statute, step back and allow the national system to handle a case. That’s much preferred than to have an international court come in, of whatever nature.

I hope that in another ten years, we’ll be much-- ‘we’, broadly speaking, international community, will be much better at understanding how we can assist national systems while allowing the national systems to really take the lead.

MARK SOMMER: Priscilla Hayner, director of the Peace and Justice Program at the International Center for Transitional Justice.

Given the scale and nature of atrocities committed in time of war, there’s no legal system on Earth that could render justice to the victims or mete out adequate punishment to the perpetrators. The great majority of these crimes are never tried. Legal systems in societies shredded by war are already overwhelmed. In addition, those who negotiate the peace are more often than not the perpetrators themselves, carving up the spoils of war while their victims sort through the rubble.

For the great majority of individuals who can’t attain legally administered justice, some measure of peace can sometimes be achieved through collective truth telling. Others achieve reconciliation through a personal process of acceptance and forgiveness. The challenge for the international community is to establish the norms and institutions of a global legal order and the means to enforce it equal to the far from perfect rule of domestic law in advanced nations.

We’re still a long ways from that lofty goal. But the efforts of many dedicated individuals to build a bridge from here to there are slowly but surely taking us closer to it.

I’m Mark Sommer. And this has been A World of Possibilities, brought to you this week with support from the Compton Foundation. Catch our podcast at AWorldOfPossibilities.org. While you’re there, we invite you to send us your comments and check out our new mini-cast.

ANNOUNCER: You’ve been listening to A World of Possibilities with host and executive producer, Mark Sommer. Access the full interviews with our guests, read more about the issues, and subscribe to our podcast at AWorldOfPossibilities.org.

The recording engineer is Mike Schwartz. Associate producers, Naihma Deady and Matt Fidler. The senior producer is Gregg McVicar. And I’m Gabriela Castelan. This is the WFMT Radio Network.

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