Reconciliation(s): Transitional Justice in Postconflict Societies 9780773576735

Citation preview

23144_GB.book Page i Monday, February 9, 2009 11:46 AM

reconciliation(s)

23144_GB.book Page ii Monday, February 9, 2009 11:46 AM

studies in nationalism and ethnic conflict General Editors: Sid Noel, Richard Vernon Studies in Nationalism and Ethnic Conflict examines the political dimensions of nationality in the contemporary world. The series includes both scholarly monographs and edited volumes that consider the varied sources and political expressions of national identities, the politics of multiple loyalty, the domestic and international effects of competing identities within a single state, and the causes of – and political responses to – conflict between ethnic and religious groups. The books are designed for use by university students, scholars, and interested general readers. The editors welcome inquiries from authors. If you are in the process of completing a manuscript that you think might fit into the series, you are invited to contact them. 1 Nationalism and Minority Identities in Islamic Societies Edited by Maya Shatzmiller 2 From Power Sharing to Democracy Post-conflict Institutions in Ethnically Divided Societies Edited by Sid Noel 3 Bringing Power to Justice? The Prospects of the International Criminal Court Edited by Joanna Harrington, Michael Milde, Richard Vernon 4 National Identity and the Varieties of Capitalism The Experience of Denmark Edited by John L. Campbell, John A. Hall, Ove K. Pedersen 5 Parallel Paths The Development of Nationalism in Ireland and Quebec Garth Stevenson 6 Reconciliation(s) Transitional Justice in Postconflict Societies Edited by Joanna R. Quinn

23144_GB.book Page iii Monday, February 9, 2009 11:46 AM

Reconciliation(s) Transitional Justice in Postconflict Societies Edited by JOANNA R. QUINN

McGill-Queen’s University Press Montreal & Kingston • London • Ithaca

23144_GB.book Page iv Monday, February 9, 2009 11:46 AM

© McGill-Queen’s University Press 2009 isbn 978-0-7735-3462-9 (cloth) isbn 978-0-7735-3463-6 (paper) Legal deposit second quarter 2009 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free This book has been published with the help of a grant from the J.B. Smallman Publication Fund, Faculty of Social Science, The University of Western Ontario. McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Book Publishing Industry Development Program (bpidp) for our publishing activities.

Library and Archives Canada Cataloguing in Publication Reconciliation(s): transitional justice in postconflict societies/edited by Joanna R. Quinn. (Studies in nationalism and ethnic conflict 6) Includes index. ISBN 978-0-7735-3462-9 (bnd) ISBN 978-0-7735-3463-6 (pbk) 1. Reconciliation – Political aspects. 2. Justice, Administration of. 3. Restorative justice. 4. Human rights. 5. Crimes against humanity. 6. Peace-building. I. Quinn, Joanna R., 1973– II. Series. jc571.r43 2009

323.4'9

c2008-907242-1

This book was typeset by Interscript in 10.5/13 Sabon.

23144_GB.book Page v Monday, February 9, 2009 11:46 AM

Contents

Acronyms vii Acknowledgments ix 1 Introduction 3 Joanna R. Quinn part one: reconciliation in theory 2 Forgiveness as Righteousness 17 Laurence Thomas 3 Towards the Healing of History: An Exploration of the Relationship between Pardon and Peace 26 Nicholas Frayling 4 A Dialectic of Acknowledgment 36 Trudy Govier part two: reconciliation in practice: evaluating instruments and initiatives 5 Transitional Justice in Morocco: Lifting the Veil on a Hidden Face 53 Veerle Opgenhaffen and Mark Freeman 6 Traditional Justice and Legal Pluralism in Transitional Context: The Case of Rwanda’s Gacaca Courts 86 Rosemary Nagy

23144_GB.book Page vi Monday, February 9, 2009 11:46 AM

vi

Contents

7 Truth and the Challenge of Reconciliation in Guatemala 116 Anita Isaacs 8 Contact and Culture: Mechanisms of Reconciliation in Schools in Northern Ireland and Israel 147 Caitlin Donnelly and Joanne Hughes 9 What of Reconciliation? Traditional Mechanisms of Acknowledgment in Uganda 174 Joanna R. Quinn 10 A Survey of Reconciliation Processes in Bosnia and Herzegovina: The Gap between People and Politics 207 Valery Perry 11 Tensions between Human Rights and the Politics of Reconciliation: A South African Case Study 232 Stephanus Du Toit 12 Interethnic Reconciliation in Lebanon: After the Civil War 263 Samar El-Masri 13 Beyond Coexistence: Towards a Working Definition of Reconciliation 286 Brandon Hamber and Gráinne Kelly Index 311

23144_GB.book Page vii Monday, February 9, 2009 11:46 AM

Acronyms

acdp amdh anc bih ccdh ceh cgtl ci civhr csos da de dpa drc eu fbih frg fvj gmi icc icty ictr idps

African Christian Democratic Party Association Marocaine des Droits de l’Homme (Moroccan Association for Human Rights) African National Congress Bosnia-Herzegovina Conseil Consultatif des Droits de l’Homme Comisión para el Esclarecimiento Histórico (Commission for Historical Clarification) Confédération Générale des Travailleurs Libanais (Lebanon) Controlled Integrated Commission of Inquiry into Violations of Human Rights civil society organizations Democratic Alliance (South Africa) Department of Education Dayton Peace Agreement Democratic Republic of the Congo European Union Federation of Bosnia and Herzegovina Frente Republicano Guatemalteco (Guatemalan Republican Front) Forum Vérité et Justice Grant Maintained Integrated International Criminal Court International Criminal Tribunal for the Former Yugoslavia International Criminal Tribunal for Rwanda internally displaced persons

23144_GB.book Page viii Monday, February 9, 2009 11:46 AM

viii

ier imf imtd ingo irin lpa lra ngo nrm omdh remhi rpa rpf rs sadr tac trc

Acronyms

Instance Équité et Réconciliation International Monetary Fund Institute for Multi-Track Diplomacy international non-governmental organization International Regional Integration Network Landless People’s Movement (South Africa) Lord’s Resistance Army non-governmental organization National Resistance Movement (Uganda) Organisation Marocaine des Droits Humains (Moroccan Organization for Human Rights) Recuperación de la Memoria Histórica (Recovery of Historical Memory) Rwandan Patriotic Army Rwandan Patriotic Front Republika Srpska Sahrawi Arab Democratic Republic Treatment Action Campaign (South Africa) Truth and Reconciliation Commission

23144_GB.book Page ix Monday, February 9, 2009 11:46 AM

Acknowledgments

The seed for this volume grew from a conference hosted by the Nationalism and Ethnic Conflict Research Group at The University of Western Ontario in May 2005. Dr Richard Vernon, co-director of NECRG , played a key role in that conference and in shaping the manuscript that became Reconciliation(s). To him, as always, I owe a great deal of thanks. When I was given the opportunity to organize that conference, Richard encouraged me to invite the superstars of the world who think about reconciliation – in all its forms. I did, and they came. Their papers make up Reconciliation(s). Throughout this long process the authors have been both thoughtful and patient. I thank them for their generosity of spirit and for their contributions.

This page intentionally left blank

23144_GB.book Page 1 Monday, February 9, 2009 11:46 AM

reconciliation(s)

This page intentionally left blank

23144_GB.book Page 3 Monday, February 9, 2009 11:46 AM

1 Introduction JOANNA R. QUINN

In recent years, scholars and practitioners alike have begun to concentrate their attention on the transformation of conflict and postconflict societies. Significantly, one area of focus is what has come to be known as “transitional justice,” which is defined as the process by which societies move either from war to peace or from a repressive/authoritarian regime to democracy while dealing with resulting questions of justice and what to do with social, political, and economic institutions.1 Although the field of transitional justice has only been recognized for ten years or so, already certain efforts to bring about transitional justice are seen as conventional. Some examples are the work on international tribunals, including the International Criminal Tribunal for the Former Yugoslavia (icty) and the International Criminal Tribunal for Rwanda (ictr) as well as the recently established International Criminal Court (icc); truth commissions in twenty-five or more countries; and mechanisms of reparation and apology. In addition to this, other work has been brought about in areas that include education, art, political restructuring, and the use of customary, or “neotraditional,”2 mechanisms. There is also a standard body of literature that both directly addresses and reflects upon these ideas. The “canon” consists of a number of books written by authors from various disciplines, from the social sciences to law to the humanities, and all of them are concerned with issues and processes related to this kind of postconflict social reconstruction. These can be divided into categories according to their focus on particular aspects of the transitional process.

23144_GB.book Page 4 Monday, February 9, 2009 11:46 AM

4

Joanna R. Quinn

One such category focuses on memory and remembering. The books in this category include Ifi Amadiume and Abdullahi AnNa’im, The Politics of Memory (Zed Books, 2000); Martha Minow, Breaking the Cycles of Hatred (Princeton University Press, 2002); Alexandra Barahona de Brito, Carmen Gonzaléz-Enríquez, and Paloma Aguilar, eds., The Politics of Memory (Oxford University Press, 2001); and Paul Connerton, How Societies Remember (Cambridge University Press, 1989). Another category focuses on truth. The books in this category include Priscilla Hayner, Unspeakable Truths (Routledge, 2003); Tristan Anne Borer, ed., Telling the Truths (Notre Dame University Press, 2006); Robert I. Rotberg and Dennis Thompson. eds., Truth v. Justice (Princeton University Press, 2000); and Kader Asmal, Louise Asmal, and Ronald Suresh Roberts, Reconciliation through Truth (St. Martin’s Press, 1997). Other books focus on peacebuilding and the transformation of institutions. Among these are John Paul Lederach, Building Peace, 6th ed. (United States Institute of Peace Press, 2004); Eric Stover and Harvey M. Weinstein, eds., My Neighbour, My Enemy (Cambridge University Press, 2004); Antonia Chayes and Martha Minow, eds., Imagine Coexistence (Jossey-Bass, 2003); Nat J. Colletta and Michelle L. Cullen, Violent Conflict and the Transformation of Social Capital (The World Bank, 2000); and Roland Paris, At War’s End (Cambridge University Press, 2004). Another category deals with forgiveness. This category includes Raymond Helmick and Rodney Petersen, Forgiveness and Reconciliation (Templeton Foundation Press, 2001); Jeffrie Murphy, Getting Even (Oxford University Press, 2003); Everett J. Worthington, (ed.), Dimensions of Forgiveness (Templeton Foundation Press, 1998); and Trudy Govier, Forgiveness and Revenge (Routledge, 2002). One unifying theme of the work that has been done in this area involves an emphasis on an important subset of transitional justice: reconciliation, the act of “building or rebuilding relationships today that are not haunted by the conflicts and hatreds of yesterday.”3 Reconciliation is dynamic. And it operates at a variety of different levels, including both the personal and the political. For example, individuals may be reconciled to one another or states may call for reconciliation. Indeed, many instruments have been used to bring about this kind of political reconciliation among groups at a societal level. Perhaps the most well known of these is South Africa’s Truth and

23144_GB.book Page 5 Monday, February 9, 2009 11:46 AM

Introduction

5

Reconciliation Commission, although many other mechanisms have also been employed to facilitate reconciliation. Agencies, including the United Nations Security Council, have begun to recognize the importance of transitional justice and to focus on justice, peace, and democracy not as “mutually exclusive objectives, but as reinforcing imperatives”4 critical to the process of reconciliation. Three questions relating to reconciliation, however, have yet to be settled. The first concerns the definition of the concept of reconciliation. Those within the transitional justice community have not settled on any one particular definition of reconciliation. In part, this is what many of the authors of the chapters in this volume are attempting to do. This book provides an introduction to the reconciliation debate. Reconciliation can mean very different things to different people, as is articulated in the chapters that follow. The contributing authors agree, however, that, at its heart, reconciliation is about building relationships of trust and cohesion. And, while all of them accept the moral good of reconciliation, not all of them see reconciliation as possible in every circumstance. The second question concerns the nature of reconciliation itself. Many argue that reconciliation is a process, or a series of actions that eventually lead to a conclusion. From this perspective, reconciliation may comprise any number of different steps and may utilize different methods. Others argue that reconciliation is an end-point, the stage at which the relationship in question has been repaired. Both of these points of view are articulated in the chapters that follow. The third question concerns the level at which reconciliation operates. This is an especially challenging notion because it deals with the collective but, at the same time, remains located within the individual, whose commitment to, and action regarding, reconciliation ultimately informs the corporate process. It is possible for a person to carry out reconciliation at the personal level and, in so doing, to contribute to political reconciliation. As a result, the chapters in this book explore, in part, the attitudinal and behavioural aspects of reconciliation. The perspectives conveyed in this book are, in part, the result of the widely varied backgrounds of their authors. Some of these people are practitioners of transitional justice, whose work on the ground informs their perceptions and guides their very practical assessments of the state of reconciliation. Many are academics, grounded in the theoretical evaluation and critical consideration of these same issues.

23144_GB.book Page 6 Monday, February 9, 2009 11:46 AM

6

Joanna R. Quinn

These authors by no means present a uniform perspective. Among those whose work is applied, there are theologians and psychologists as well as mediators and lawyers. Even the academics are a varied lot, coming from backgrounds in education, political science, and philosophy. The authors also live and work in a number of countries, including South Africa, Northern Ireland, and Bosnia-Herzegovina. Their diverse experiences infuse the chapters with a range of viewpoints on the theory and practice of reconciliation. Largely owing to the vastly different experiences and training of the authors, the analyses of reconciliation presented in this book are built upon a number of different models. They expose a range of inquiries, methodologies, and case studies. Aside from the obvious split between theoretical and case-based chapters, we find a broad range of analytical methods. Isaacs (chapter 7), Donnelly and Hughes (chapter 8), Du Toit (chapter 11), and Hamber and Kelly (chapter 13) employ various methods of thick description and nuanced observation. These chapters are of particular importance because they showcase the actual voices of people who are living with processes of reconciliation, something that is not found often enough in the research surrounding reconciliation. Other authors, including Opgenhaffen and Freeman (chapter 5), Nagy (chapter 6), Quinn (chapter 9), Perry (chapter 10), and El Masri (chapter 12), analyze the political-legal frameworks and institutions in which reconciliation has been expected to take place. This analysis is crucial to understanding how the intricacies of postconflict reconstruction are played out in practice. And Thomas (chapter 2), Govier (chapter 4), and Frayling (chapter 3) provide an important foundation for this kind of applied analysis. Opgenhaffen and Freeman, Donnelly and Hughes, Quinn, El Masri, and Perry address the structural processes of reconciliation; Opgenhaffen and Freeman, Nagy, Quinn, and Perry examine the legal frameworks within which such processes are allowed to take place and the kind of strictures within which they operate; Isaacs, Du Toit, and El Masri consider how attitudes are able to shape the public response to reconciliation and influence its societal impact. The authors also vary in their approaches to and understandings of reconciliation. El Masri, Perry, Nagy, and Opgenhaffen and Freeman see reconciliation as a facet of political reform and, therefore, focus on institutions as agents of reconciliation. Their chapters contemplate truth commissions, justice, social reform, and political

23144_GB.book Page 7 Monday, February 9, 2009 11:46 AM

Introduction

7

institutions and how they are able to bring about social healing. In contrast, Frayling, Govier, Thomas, and Isaacs posit that individuals are the agents of reconciliation. They give great importance to emotional processes, including repentance, acknowledgment, truth, and forgiveness. Donnelly and Hughes, Quinn, Du Toit, and Hamber and Kelly see reconciliation as a social process and posit the collective (which is ultimately comprised of individuals relating to one another) as the agent of reconciliation. They emphasize communitybuilding, relationships, social cohesion, and social processes as means of bringing about reconciliation. The nature and scope of all of the chapters, then, is informed by the attempt to determine who is to be accorded responsibility for what is ultimately an interpersonal process that must be undertaken at the societal level. The chapters in this collection are varied in both scope and objective. They reflect the diversity of their authors, while very clearly articulating the uncertainties and struggles inherent in the processes of social healing and reconciliation.

1 The chapters in part 1 reflect on the elements that make up the process of reconciliation. From a theoretical perspective, each of the three chapters considers ways in which both victims and perpetrators can begin to get past the wrongs committed in the past, thereby promoting the building or repair of a relationship. Together, they propose a theoretical model of how reconciliation ought to work, focusing on three complementary aspects of the process: acknowledgment, repentance, and forgiveness. In chapter 2, Laurence Thomas employs a dialectic style to discuss forgiveness. The chapter is written as a hypothetical case, and Thomas uses it as a means of exploring his argument in some depth. It provides one-half of an argument that is later picked up by Frayling (chapter 3). Like Frayling, Thomas deals with the interpersonal, although his chapter differs a great deal in this regard from the other chapters in Reconciliation(s), which are more straightforward studies of political and social processes. Thomas is able to tease out an extremely thorough understanding of a complex set of ideas. He argues that “forgiveness functions rather like an exchange in equity” in that the act of forgiveness can compensate for a wrong that has been committed. He also, however, argues that, in cases

23144_GB.book Page 8 Monday, February 9, 2009 11:46 AM

8

Joanna R. Quinn

where the damage incurred cannot be undone or the former situation restored, forgiveness functions as righteousness. Like both Frayling and Govier, Thomas argues that the sincerity of the act itself (in this case, the realization that the act that he/she has perpetrated cannot be undone, along with a commitment to do right in the future) has the ability to transform the individual. And Thomas concludes that, if and when the victim affirms that this transformation has taken place, then reconciliation will also have taken place. In chapter 3, Nicholas Frayling looks at personal and interpersonal aspects of the process of reconciliation. He rejects the oftenheard call to “forgive and forget” and focuses instead on the call to “remember and repent.” His chapter is based on his own experiences in the ministry of the Church of England and on his observation of the “Troubles” in Northern Ireland. He reflects on both his own actions and the actions of his country, Britain. He asserts that reconciliation begins with what he deems “costly repentance”, a measure that, if genuine, can be a valuable step in the process. In carrying out that act of repentance, he says, transitional societies must “examine with courage and care the historical record, with as open a mind as possible, before we can even think of setting it aside”. He argues that only through repentance can historical abuse and hatred be stopped and society be transformed. In chapter 4, Trudy Govier considers another of the personal acts integral to the process of reconciliation: acknowledgment. Acknowledging wrongs that have been committed, she says, “is regarded as pivotal in reconciliation and as constituting a necessary first step towards dealing with the past and achieving something like sustainable peace”. Govier discusses the importance of acknowledgment and offers a useful typology and examination of its different forms: existential, aversive, and affirmative. She admits to the complexities of aversive acknowledgment – that is, the sincere act of admitting something that may be difficult to face – particularly in situations in which one has been both a victim and a perpetrator. And she argues that perpetrator acknowledgment, although in many cases difficult, is nonetheless important to the rebuilding process.

2 The chapters in Part 2 are concerned with the practical application of the kinds of theoretical models offered above. These nine chapters

23144_GB.book Page 9 Monday, February 9, 2009 11:46 AM

Introduction

9

look at various instruments and mechanisms that are being used (or could soon be used) to bring about reconciliation. They focus on initiatives operating on four continents, and they attempt to evaluate and assess the processes being used. Although each of these chapters begins at a different place and examines different mechanisms, all are interested in just how these various instruments either enable or constrain the reconciliation process. Chapter 5, by Veerle Opgenhaffen and Mark Freeman, is the first of the practically focused chapters and it looks at Morocco’s Fairness and Reconciliation Commission (Instance Équité et Réconciliation). In January 2004, the commission began to look into the repression and abuses committed in Morocco from 1956 to the early 1990s. The authors provide an in-depth look at the commission and how it came to be, although they are careful to state that it is still early going and too soon to definitively evaluate its outcome. One of the greatest strengths of the Moroccan Fairness and Reconciliation Commission is what Frayling calls the examination of the historical record. Indeed, this has the potential to provide the foundation for repentance, acknowledgment, and forgiveness, all critical elements of reconciliation. In chapter 6, Rosemary Nagy provides a similar assessment of the gacaca (pronounced ga-cha-cha) courts implemented in Rwanda to deal with the aftermath of the 1994 genocide, juxtaposing them with the International Criminal Tribunal for Rwanda and the country’s own national courts, all of which are attempting to process the large numbers of people who committed offences during the genocide. She provides a useful review of the gacaca process and attempts to clearly define the courts as an amalgam of both Western and African mechanisms of justice and reconciliation, arguing that critics in Rwanda and in the international community are judging the courts by vastly different criteria. She argues that the process itself has substantive value in the social rebuilding process. Like Thomas, Nagy contends that the ultimate power of the gacaca courts lies in their transformative potential. In chapter 7, Anita Isaacs evaluates the truth commissions that were held in Guatemala: the Commission for Historical Clarification, mandated by the peace agreement and sponsored by the United Nations, and the Project for the Recovery of Historical Memory, carried out by the Guatemalan Archdiocese of the Roman Catholic Church. Through an assessment of victims’ stories, which

23144_GB.book Page 10 Monday, February 9, 2009 11:46 AM

10

Joanna R. Quinn

are powerfully presented here as first-person accounts, she examines the role of truth and acknowledgment in healing and reconciliation. Isaacs argues that both commissions were more polarizing than conciliatory, and she suggests that other instruments, including the kind of customary mechanisms described by both Nagy and Quinn, might be more effective with regard to bringing about social reconciliation, which, she asserts, has yet to happen within Guatemalan society. In chapter 8, Caitlin Donnelly and Joanne Hughes compare two approaches to the mixed-religion schools that, in an attempt to effect reconciliation, were adopted both in Northern Ireland and Israel. Following the tenets of the contact hypothesis, Donnelly and Hughes argue that the social and cultural norms inherent in these schools can influence the reconciliation process. They provide a description of the methods used and analyze a number of variations in how mixed education is carried out in Israel and in Northern Ireland. Like Frayling, Donnelly and Hughes consider issues of social transformation. In chapter 9, Joanna Quinn concentrates on practical approaches to reconciliation, focusing on efforts at social rebuilding in Uganda. First, however, she lays out a model for social healing. She argues that acknowledgment, forgiveness, social trust, democracy, and reconciliation are intricately linked and that acknowledgment is central to the healing process; in this, she concurs with Govier. She also contends that reconciliation might more appropriately be called social cohesion. Quinn then considers the failed legacy of Uganda’s truth commission. Finally, she describes, and provides a rationale for, the use of customary mechanisms to bring about reconciliation. She also provides a list of potential impediments that are specific to the Ugandan case but that are also applicable in other societies as well. In chapter 10, Valery Perry uses a holistic, multi-track model of diplomacy to evaluate what she refers to as the “traction” of reconciliation in Bosnia-Herzegovina. In so doing, she considers the utility of both official processes and non-official mechanisms in the reconciliation process ten years after the Dayton Agreement, which ended the brutal Wars of Yugoslav Succession. Perry argues that processes of institution- and democracy-building, along with reconciliation, have not yet taken hold, in spite of the many efforts at peacebuilding and reconciliation that are ongoing within the country, many of which she evaluates in this chapter. Although she

23144_GB.book Page 11 Monday, February 9, 2009 11:46 AM

Introduction

11

details several efforts that have met with some success, she also describes many efforts that have not, and she therefore urges “cautious optimism and continuing determination”. In chapter 11, Stephanus Du Toit argues that, to be successful, human rights and reconciliation need each other. He looks at the social and political realities of this hypothesis in South Africa eleven years after the adoption of democracy. Du Toit also considers the roots of reconciliation in the South African context, analyzing the Bill of Rights in order to establish a framework for subjecting the positions of various political leaders within the country to discourse analysis. While all of the major political parties in the country have adopted the language of human rights, Du Toit argues that they have vastly different conceptions of human rights and that this has influenced the manner in which some rights are prioritized over others. He contends that the resulting tension between human rights and reconciliation has greatly affected the current political discourse. In chapter 12, Samar El-Masri examines the social and political realities of Lebanon sixteen years after the Ta’if Accord, following the protracted war of the 1970s and 1980s. She argues that power sharing and social transformation are critical to the process of reconciliation, and she focuses on the role that Lebanese civil society has played in this regard. She argues that, although civil society organizations at one time simply reinforced the status quo, today some are actively engaged in social rebuilding. El-Masri also evaluates particular initiatives, including educational reforms similar to those described by Donnelly and Hughes, to facilitate national cohesion and reconciliation. However, she concludes that, in Lebanon, efforts by civil society organizations have failed to bring about any substantive social or political change. In the final chapter, Brandon Hamber and Gráinne Kelly return to the arguments put forward by each of the authors in the previous eight. They attempt to build a cohesive definition of reconciliation, in the end opting for one that includes elements of a shared vision, acknowledgment, the building of relationships, and cultural, attitudinal, social, economic, and political transformation. Through the lens of a study conducted in Northern Ireland, they argue that the lack of definitional and conceptual clarity surrounding the term “reconciliation” is, in fact, partly to blame for unsatisfactory results achieved in the area of reconciliation around the world. They demonstrate what many of the other authors have established: any

23144_GB.book Page 12 Monday, February 9, 2009 11:46 AM

12

Joanna R. Quinn

process that seeks to bring about reconciliation ought to take cultural specificities into account – in effect, there can be no “cookiecutter” solutions.

3 This book provides a number of perspectives on reconciliation, at the levels of both practice and theory. Many of the chapters are concerned with testing how the realities of transitional justice correspond to conceptual arguments. And while each of the chapters focuses on a different point in the reconciliation process, and on the different instruments that might make it possible to repair certain relationships, the distinctive experiences of different states and societies in bringing about reconciliation are instructive. As such, from a number of important perspectives, the book as a whole addresses several cross-cutting themes that are of enormous importance in better understanding the role of reconciliation and its significance in social rebuilding after conflict. The first theme concerns the definition of the term “reconciliation.” The authors all attempt to come to terms with the many-headed beast that is reconciliation. As Quinn points out, “‘reconciliation’ is articulated very differently in a variety of circumstances”. In some cases, it simply means a mutual agreement to co-exist; one thinks here of the formerly warring co-habitants on the island of Cyprus who have essentially agreed to disagree and are now living free from war in the same space. In other cases, reconciliation can mean rapprochement, or the restoration of cordial relations, as in the return of formal diplomacy between Ukraine and Russia early in the twenty-first century. At a deeper level, reconciliation characterizes the re-establishment of friendship between two people – essentially a bringing back together of those who have been estranged. More broadly, the exercise of community building may also be seen as an act of reconciliation. While these many definitions may seem mystifying and demoralizing, it turns out that, in part, they are an indication that processes of reconciliation are not stagnant. Reconciliation is an ever-evolving concept; as a result, its interpretation is growing and changing. It is also, however, understood very differently, depending on the notional lens through which it is examined.

23144_GB.book Page 13 Monday, February 9, 2009 11:46 AM

Introduction

13

The second theme that runs through this book concerns different cultural practices and moral responses to reconciliation. The successes and failures of the South African Truth and Reconciliation Commission, for example, can be seen through the lens of the specific experiences of apartheid and in the particular instrument that was developed to meet the extraordinary needs of a divided population. In other cases, such as that of Northern Ireland, the strong traditions of social justice that emanate from the Christian roots of the country – which themselves are the source of the Troubles – have been instrumental in shaping the country’s attempts at social rebuilding and reconciliation. Throughout this book, the authors accord practical recognition to the fact that reconciliation has everything to do with the meanings ascribed to it, and this tempers their expectations. In spite of this, societies have proved able to discern a meaning for the term to such an extent that they have been able to develop processes and practices that allow them to deal with legacies of abuse and turmoil. The third theme that runs throughout these chapters focuses on the authors’ shared concern for processes of social rebuilding. On the whole, they see great promise in reconciliation as both a concept and a construct. And their chapters reflect their commitment to it.

notes 1 From a definition developed in Lucy Hovil and Joanna R. Quinn, “Peace First. Justice Later: Traditional Justice in Northern Uganda,” Refugee Law Project Working Paper Series, Working Paper No. 17, 8 July 2005, 10. 2 From Stephen Brown, “Forging Political Unity in Rwanda: Government Strategies and Grassroots Responses,” paper presented at “Reconciliation,” The University of Western Ontario, London, Ontario, 14 May 2005. 3 Priscilla Hayner, Unspeakable Truths (New York: Routledge, 2003), 161. 4 United Nations Secretary-General, Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (United Nations Security Council, S/2004/616 [revised], 23 August 2004), 1.

This page intentionally left blank

23144_GB.book Page 15 Monday, February 9, 2009 11:46 AM

PART ONE

Reconciliation in Theory

This page intentionally left blank

23144_GB.book Page 17 Monday, February 9, 2009 11:46 AM

2 Forgiveness as Righteousness LAURENCE THOMAS

There are wrongs that can be repaired. The idea is not to diminish any wrong that a person suffers; rather, it is to draw attention to the important truth that not all wrongs constitute irreparable damage. Of course, it is not uncommon nowadays for people to use the term “violated” to refer to all sorts of wrongs. Thus, people even claim to have been violated simply on account of someone’s having lied to them. This way of talking raises the pitch, if you will, of the moral rhetoric; for a term that was once used in a very special context with regard to a wrong that is indeed horrendous – namely, rape – has been extended for rhetorical force to wrongs that clearly do not come even close to being analogous to rape in any way. Rape is a violently coercive act with respect to the intimate and, thus, with respect to that which should indicate the fullest expression of a person’s own wishes. Rape does not admit of restoration precisely because there is no way to compensate for a wrong that is tied to having coerced a person to participate in intimate behaviour against her or his wishes. Now, without attempting to offer a typology of the difference, I want to distinguish between wrongs that admit of restoration and wrongs that do not – ineffaceable wrongs, as I shall say. And the point that I wish to make is that, when it comes to restorative wrongs, forgiveness functions rather like an exchange in equity. Opidopo commits a restorative wrong against Jasmine. He is contrite. He apologizes profusely and sincerely. Moreover, he performs the set of restorative acts necessary in order to repair the wrong in question. In fact, we might very well say that, unless Opidopo actually performed the appropriate restorative act in order to repair the

23144_GB.book Page 18 Monday, February 9, 2009 11:46 AM

18

Laurence Thomas

wrong, then his apology could not have been all that sincere. To be sure, whether a person who commits a restorative wrong can perform the appropriate restorative act depends upon a number variables, with the person’s means being a key one. But let us not forget that restorative acts can be conducted in a number of ways. One can simply replace the object in question or one may do something of equivalent value for the person. Thus, while Opidopo may not be able to replace Jasmine’s vase, for example, which he stole from her and then broke, he may instead mow her lawn or render some other service that amounts to a replacement. I shall not belabour the point. I think that we all know that restorative acts can be negotiated if it turns out that the actual item lost cannot be replaced. When it comes to restorative wrongs, the issue of forgiveness does not simply disappear. Indeed, even with restorative wrongs, a person can refuse to forgive. Notice, though, that where we have restorative wrongs followed by a genuine willingness to perform the reparative acts, along with appropriate remorse, then a person who fails to forgive in this instance can actually come across as someone who has a morally flawed character. For example, people who hold grudges take more delight in focusing upon the wrong that someone committed against them than in the willingness of that person to repair the wrong. In fact, this is what they do even with a repair in place. Everyone else is impressed with the remarkable repair, while the person wronged is still fuming over the fact that a repair had to take place to begin with. Holding a grudge bespeaks a flaw in character. I have argued that forgiveness is a gift;1 and I still maintain that view. But it is possible to reproach someone morally for not offering a gift. After all, we certainly reproach people for not being kind. And a person with sufficient means most certainly can be morally reproached for not giving a gift to a departing colleague who has given many years of service. We might think that the person is too selfish, too self-centred, or too cold. These are moral criticisms, even though the person may be far from being a thief or a killer or even someone who is inclined to cheat others. We generally understand that there are things that people ought to do, although no one has a right to their so behaving, and there is no strict moral duty that they so behave. Gifts, as such, are not the exception. Forgiveness as equity, let us say, is an important kind of forgiveness. Just so, I do not believe that it constitutes forgiveness at its most majestic. There is what I shall refer to as forgiveness as righteousness.

23144_GB.book Page 19 Monday, February 9, 2009 11:46 AM

Forgiveness as Righteousness

19

Not surprisingly, I regard forgiveness as righteousness as forgiveness at its most majestic. Therefore, it should also not be surprising that I regard forgiveness of this kind as pertaining to non-restorative wrongs. Let me hasten to add that, as I understand it, forgiveness as righteousness is not about forgiving no matter what, as some interpret Christianity. There is little doubt in my mind that some people do not merit forgiveness. This is not so much because the wrong committed is so heinous (though that might be the salient factor) as because the wrongdoer shows absolutely no remorse at all. A person who shows no remorse upon having committed a heinous crime does not merit forgiveness, at least insofar as this involves trust. It cannot be rational to trust such a person again. Divine forgiveness is in a different category entirely, since God is never vulnerable to those to whom He gives. The distinguishing feature of forgiveness as righteousness is that it looks at the significant good that can be done by forgiving, where the good does not pertain to the restoration of the person wronged (except only incidentally). Thus, persons could exhibit forgiveness as righteousness, though they realize that there is no restoration in it for them. One might wonder why I have drawn attention to the difference between forgiveness as equity and forgiveness as righteousness. The answer is that we are losing sight of the latter; and, in so doing, we are losing sight of one of the extraordinary ways in which human beings can make a difference in the world, as I shall illustrate momentarily. This is the reason why I distinguished, in the first place, between restorative and non-restorative wrongs. It is a mistake to treat every wrong as one kind or the other. On the one hand, we must not resort to moral pitch raising, thereby turning every wrong into that which cannot be restored; on the other hand, we must be careful not to regard all wrongs as restorative, where the restoration turns out to be simply a matter of assigning a monetary amount. For this move, in the end, does us more harm than good, as the following example illustrates. I began this chapter with the observation that rape is a horrendous wrong. Supposing, though, that one could fix a designated amount of money to the wrong of rape. This would be to add insult to injury. Why? Because then a person could commit this horrendous act, serve up the designed sum of money, and then proceed as if he had indeed wiped his slate clean. Worse still, the moral

23144_GB.book Page 20 Monday, February 9, 2009 11:46 AM

20

Laurence Thomas

sentiments of guilt, shame, and remorse could become otiose as the monetary sum offered up as restoration would be seen as completely settling everything. It goes without saying that we would not want to see this sort of attitude regarding rape come about. This is because, from the moral point of view, it is unequivocally true that rape does not admit of a monetary compensation. No one, neither the victim nor the wrongdoer, should ever think that the moral sentiments just mentioned are irrelevant just so long as adequate sums of money have been offered for the wrong done. Likewise for murder and various other horrendous wrongs. To be sure, even with non-restorative wrongs it can be appropriate to offer money in response to the damage done. The problem lies in our moral sensibilities shifting in such a way that non-restorative wrongs become the functional equivalent of restorative ones. At first glance, the advantage might seem to be that extraordinary sums of money can be demanded as a form of restoration. In the long run, however, the drawback is that (1) non-restorative wrongs are treated as if they can be set straight by sufficiently large sums of money and (2) the moral sentiments of guilt, shame, and remorse on the part of the wrongdoer become increasingly irrelevant. Presumably, a world with no wrongdoing is the best of all possible worlds. If, however, we are going to have wrongs, then the next best world, albeit some distance from the best, is a world in which those who do wrong exhibit genuine contrition for the wrongs they commit and a deep resolve not to commit them again. I take it as an incontrovertible truth that the very idea that there could be a monetary compensation for apartheid or the Holocaust or American slavery or the vast slavery of the Ottoman Empire is morally repugnant. Accordingly, we do not have moral progress, whatever else we might have, in a world that is so busy privileging pecuniary sums that it loses sight of, or even renders irrelevant, the moral sentiments enumerated above. And this brings us back to forgiveness as righteousness. Even when restoration is out of the question and even when no form of monetary compensation is adequate, forgiveness is still possible. For the impossibility of restoration or monetary compensation is nonetheless compatible with profound remorse and contrition for the wrongs committed, along with coming to have an unfailing commitment to doing what is right in the future. Those who have committed unthinkable wrongs can become transformed

23144_GB.book Page 21 Monday, February 9, 2009 11:46 AM

Forgiveness as Righteousness

21

and take as their goal the task of making the world a better place. And part of their moral pain, ever so fully acknowledged, will be their realization that there is not anything that they could possibly do that could repair the wrong that they have done. When we have lives of this sort, we also have the opportunity for forgiveness as righteousness. Imagine that a rapist, call him Craliger, had such a transformation. Craliger knows that he cannot possibly undo the horrendous wrong that he did to the eighteen-year-old, call her Nataminine, that he raped some ten years ago. And he is not pretending that such a thing is even possible. Still, he is not the man that he once was. Craliger set up a foundation, called marv (Men against Rape Violence), the aim of which is to educate men regarding their sexist attitudes towards women by drawing attention to the profound ways in which the violence of rape is tied to the vulnerability men; and it is he who opens each meeting with a most poignant account of both his past and his transformation. This Craliger has been doing for ten years. It goes without saying that Craliger talks about the wrong that he did without mentioning Nataminine’s name. Now Nataminine, who is still wrestling with her pain owing to having been raped by Craliger, learns about marv and the role Craliger plays in it. She can show up at a marv convention and mightily denounce Craliger. She can, as it were, put flesh and bones upon the account that he tells of his life and the wrong of rape that he committed. Yet, she knows there is nothing that she could say that would add in content to Craliger’s account; for she learns that in no way does his account of matters diminish the wrong that he committed. Quite the contrary, his account is eye-opening even to her, as he proffers details that reveal just how vicious a man he was. She could go on being bitter towards him because nothing he does will change the fact that he raped her and damaged her considerably. As it happens, she is being given all the psychological help that she needs, and financially she is as well off as a person could be. So it is not as if there is anything that Craliger could do to make a difference – though it goes without saying that if he could, then he would. No doubt I should mention that he had sent her a profound letter of contrition years before he started marv. Understandably, perhaps, Nataminine threw the letter away in disgust and outrage. Do I think that Craliger is morally entitled to forgiveness from Nataminine? Absolutely not. On the other hand, I think that her

23144_GB.book Page 22 Monday, February 9, 2009 11:46 AM

22

Laurence Thomas

forgiving him would be a most majestic instance of forgiveness as righteousness. There are various possibilities here. One is that she lacks the psychological wherewithal to forgive him because she remains too scarred. Another is that she simply wants to hold a grudge against him. It should be pointed out here that, even if there is nothing whatsoever that Craliger could possibly do that would diminish the wrong that he did, it does not follow that it does not matter at all how he goes on to live. He could, for instance, deny the wrong that he did. Even worse, he could claim that she deserved to be so wronged; and, in keeping with that, he could go around boasting of what he did. That would be objectionable in and of itself. So whatever it is that one thinks of Craliger and marv, it is absolutely not morally insignificant that this is the route that he took. Besides, we may not use the wrongs that have been done to us as an excuse to distort or diminish the moral good done by another. Thus, not even Nataminine’s moral pain allows her to claim that what Craliger is doing is insignificant. Of course, it does not follow from anything that has just been said that Nataminine is under an obligation to forgive Craliger. Still, it turns out that there are some significant moral constraints that apply to her as she may not use her moral pain as an excuse to diminish the good that he is doing. That said, it should be noted that there is a fundamental difference between not diminishing the good that another is doing and affirming it. In order not to diminish the good that Craliger is doing, Nataminine need only not speak. When his name comes up, she may listen quietly or discreetly leave the room. And if this is all that she ever does, then it follows that she is not in any way diminishing the good that he is doing. Yet, there is a tremendous good that she can do: she can affirm the good that he is doing by forgiving him.2 This would be a righteous act. It would be an affirmation of his transformation that would be quite unlike the affirmation that would come from any other person as it would be an acknowledgment that she, whose trust he so brutally breached, found him trustworthy again. No other person on the face of the earth is in the position to offer this depth of affirmation. No other person can validate his life in this way as no other person has had to travel so far experientially in order to appreciate the good that he is doing: not the men whose lives he touches (as Craliger has not violated their trust) and not the women who are grateful that he has done so (as he has not violated their trust either). And if Nataminine

23144_GB.book Page 23 Monday, February 9, 2009 11:46 AM

Forgiveness as Righteousness

23

were to forgive him publicly that would be all the more dramatic. For one thing, her life would bear witness to the possibility that it is possible to trust again; and that alone would undoubtedly serve to uplift and encourage many a woman suffering from the damage of rape. For another, in validating him before others, Nataminine would offer on his behalf a testimony whose weight no one else could equal. This is momentous in and of itself. But it might also make it possible for him to do even more good. Still, what we would have in this case is surely not forgiveness as equity. Craliger has not restored anything in Nataminine’s life. He has not repaired anything. However, Nataminine has looked beyond that to the enormous good that he is doing. And she has found the strength to affirm that. I take the majesty of what she has done to be self-evident. The forgiveness that gives rise to the affirmation stems not from servility on Nataminine’s part or from a refusal to acknowledge the depth of the wrong that Craliger did. There is no self-denial at play. On the other hand, her forgiveness did require considerable moral fortitude. It required the wherewithal to look beyond her own pain and acknowledge that Craliger was doing a considerable good and that he was doing so with earnestness and purity of heart. Yet, her forgiveness of him, in constituting an affirmation of him that no other can give, stands for her as a moral power of the highest magnitude. And that is why what we have in this case is forgiveness as righteousness rather than forgiveness as equity. Some concluding remarks are in order. The first involves the unfortunate truth that few people own up to the horrendous wrong that they have done in the way that Craliger did. All the same, forgiveness as righteousness requires this high level of moral excellence. Even on the view that forgiveness as righteousness is a gift, there is still the truth that a person can fail to merit a gift, including a magnificent one. No matter how much a person might want a Steinway piano, it would not be appropriate to give one to her if she did not have a clue as to how to play it. This holds true regardless of how much money the would-be gift giver has at her disposal. I have talked about forgiveness with regard to a very personal violation. But I have done so with some very horrendous social harms in mind, such as apartheid, the Holocaust, and other forms of oppression. It has become commonplace these days to define ethnic pride or self-respect so that they are incompatible with forgiving. Indeed, the willingness to forgive is seen as a moral flaw. Undoubtedly, a person

23144_GB.book Page 24 Monday, February 9, 2009 11:46 AM

24

Laurence Thomas

can be a little too willing to forgive. And if I had described Nataminine as being willing to forgive Craliger merely because he had had a religious conversion experience, say, one could with some justification maintain that her willingness to forgive is problematic. This is because a religious conversion, in and of itself, does not eradicate the wrong that one has done to another; and for a wrongdoer to argue that his victim must forgive him because God has done so is an abuse of religion. Clearly, my story of Craliger is nothing like that. My assumption is as follows: if forgiveness as righteousness on Nataminine’s part is plausible in the case of Craliger, then it is surely false that forgiveness as righteousness with respect to racial injustice portends a lack of self-respect or ethnic pride.3 I do not believe in comparing evils. But I cannot think of a more despicable utterance than the following: “I would take brutal rape any day over racism.” The very utterance of such a statement bespeaks a most profound moral depravity. In any event, the point is this: it is not possible to hold that a self-respecting Nataminine can forgive a Craliger but that a self-respecting black cannot forgive a white for racism or that a self-respecting Jew cannot forgive a Nazi for antiSemitism or that a self-respecting Irishman cannot forgive English Protestants for religious persecution, where in each of these cases the offender has gone on to do tremendous good publicly using his sordid past as a moral catalyst. For just as Nataminine may not use her moral pain as an excuse to distort the good that Craliger is doing, so people may not the use wrongs that they have suffered as an excuse to distort or diminish the good of others, including those who were once utterly lacking in virtue. Whatever self-respect or ethnic pride may come to, if either serves as an excuse for diminishing the good that others do, then they provide but an illusion of inner-strength. Most assuredly, no one who so behaves can be a righteous person. Finally, the very nature of righteousness at its best is that it accomplishes what it does while far exceeding all plausible moral demands that might reasonably be made. In a city of angels, there would be none but the righteous. Accordingly, trust would be a part of the very fabric of everyone’s life. Presumably, everyone would be constituted so as to be trustworthy. Or, in any case, being trustworthy would be so very much a part of everyone’s character that it would be second nature to all. There would be no violations of trust with which anyone would have to contend. There would be no

23144_GB.book Page 25 Monday, February 9, 2009 11:46 AM

Forgiveness as Righteousness

25

scars owing to having been caught off-guard. However, in the less than idyllic setting of reality, trust violated is an ever-present concern. What is more, few who violate the trust of another ever come even remotely close to earning it again. But if such a person should have the fortitude to do so, then the simple truth of the matter is that there is no affirmation quite like the acknowledgment, from the one whom he has wronged, that he is again trustworthy. To be in the position to offer or withhold such enormous affirmation is to have considerable power with respect to a person’s life. And just as nothing will ever detract from the suffering that anyone has undergone, so the suffering that a person has endured will not change the reality that the person wronged is now in the position either to offer or to withhold affirmation that a person who had once been untrustworthy has proven himself trustworthy again. Clearly, this is a good that is independent of the good of restoration. And we should not let rapaciousness prevent us from seeing it. In any given context, the worst thing is not to possess the power to make a difference for the better. The next worst thing is having that power and not being willing to use it. Precisely what distinguishes the righteous person from the ordinary person is that the former never allows her pain to be an excuse not to do what is good. Far from being a sign of weakness, forgiveness as righteousness bespeaks a fortitude exceeded only by the gods – if, that is, there are any.

notes Laurence Thomas is a professor of political science in the Maxwell School at Syracuse University. 1 Laurence Thomas, “Forgiving the Unforgivable,” in Moral Philosophy and the Holocaust, ed. Eve Garrard and Geoffrey Scarre, (Burlington, vt: Ashgate Press, 2003). 2 I have endeavoured to show the importance of affirmation in living a meaningful life in “Morality and a Meaningful Life,” South African Journal of Philosophy 34 (2005): 3 I am grateful here to Nicholas Frayling, Pardon and Peace (London: spck Publishing, 1996). See, especially, chapter 3, “Enough Is Enough.”

23144_GB.book Page 26 Monday, February 9, 2009 11:46 AM

3 Towards the Healing of History: an Exploration of the Relationship Between Pardon and Peace1 NICHOLAS FRAYLING

We all know with our minds that “the only way to peace is through the door of justice,”2 but to make it work is something else. We are, for the most convincing reasons, inclined to avoid engagement with the risky business of peacemaking. We find political, social, and sometimes theological excuses for this strategy, and we justify it by speaking of our mature consideration, prudence, reasonable caution, or even wisdom. We lament the lack of a prophetic stance by political and religious leaders, but we do not create the conditions that would enable them to take such a lead, because we are forever watching our backs, wondering what others will say or think or do. Bishop George Bell, the Anglican Bishop of Chichester at the time of the Second World War, said, “To despair of being able to do anything, or to refuse to do anything, is to be guilty of infidelity.”3 One of the problems is that, in conflicts the world over, it seems that the same political leaders use the same methods, the same tools, to till the same ground in order to try to bring about a harvest, and they then wonder why the fields remain barren of new growth and new ideas. Let me explain how I have come to be engaged in these issues, with particular reference to my own area of concern, which is one of the oldest and most intractable conflicts in Europe, that between Britain – or, more specifically, England – and Ireland, now represented by the apparent collapse of the political process in which so many hopes have been invested. If ever there was a place where new vision and new methods were required, it is Northern Ireland.

23144_GB.book Page 27 Monday, February 9, 2009 11:46 AM

Towards the Healing of History

27

I acknowledge that, for some of you, this may seem far from your own experience, but I invite you to remain with me, for I have found, in speaking of these matters, that they have a much wider relevance. Indeed, after I had given an address in Westminster Abbey on the subject of Britain and Ireland, people of seven different nationalities came up to me and said, “You could have been speaking about us. Did you mean our situation?” As an Englishman, I have become deeply troubled by the bitter legacy that my country has bequeathed to the peoples of Ireland, both North and South, Protestant and Roman Catholic. In summary, these are the reasons for my disquiet: 1 We invaded Ireland, and we fought our own battles there. 2 We robbed the Irish people of their language and their literature, and we attempted to rob them of their church. 3 We colonized Ireland with foreigners and persecuted the Irish people when they would not conform to our religion. 4 We drove the Roman Catholics into exile and killed thousands of men, women, and children; and we invoked God as our justification. 5 We failed to feed a starving people whose country was politically part of our own, leaving millions to die or emigrate without hope. 6 We degraded the Irish people by caricaturing them in the British press and media. 7 When they protested, we met violence with violence. 8 These atrocities were not confined to the native Irish. When it suited our purpose, we “planted” the land with Protestants, took advantage of their loyalty (especially allowing them to die in unparalleled numbers in two world wars), enriched ourselves from their industry, and then told them we no longer needed them.4 It is a bitter legacy, and, in light of it, in 1993 I made an unhurried pilgrimage to Ireland in order to listen and to learn. How is it that people can bear arms and be ready to kill their neighbours on account of bitter deeds that were perpetrated hundreds of years ago? How can a society evolve if people who live in the same town can despise each other and preserve for generations a climate of mistrust, hatred, and fear? I soon discovered that the underlying question that I was posing was simply this: “Can history be healed?” It formed the basis for my book, Pardon and Peace.

23144_GB.book Page 28 Monday, February 9, 2009 11:46 AM

28

Nicholas Frayling

Now, even to pose a question such as this is to invite a charge of being naive, making mischief, supporting terrorism, or – most wounding of all – lacking in patriotism. But the beginning of patriotism is to speak the truth as we see it, and a patriotism that is founded on duplicity or that enshrines an explicit or implicit culture of inequality – of winners and losers – is unworthy of the name. In Northern Ireland, despite real efforts to fashion a political solution, there has been little healing of a deep, pervasive sense of pain and injustice mainly, but not exclusively, within the Catholic nationalist community. You will no doubt be making connections with your own sphere of concern or personal experience. The reality of resentment that is present in many postcolonial, or historically conditioned, conflicts has been well expressed by Niketu Iralu, who writes of deep divides in his native Nagaland, on the borders of India and Myanmar (Burma). These take the form of vicious intertribal rivalries and half a century of disagreement with the Government of India. There has been much violence and continuous mistrust. A chain of revenge and counter-revenge starting from unhealed hurts is the story inside every conflict. The chain becomes bloodier with every act of “paying them back in their own coin.” It is easy for those outside to pass judgment from comfortable distances. But for those directly involved the possible consequences of defeat are so grave that hitting back good and hard … is seen as the only safe road map to follow. Meanwhile, more and more families and communities are subjected to fear, hate, and destruction beyond what the human spirit should have to bear. [Other conflicts] are admittedly more complicated, older and wider in scope [than ours], but they too are often sustained by a failure to acknowledge that we each have our share of responsibility in the wrongs of others.5 My reaction to all this used to be quite straightforward. The way to deal with the pain of history, with all its injustices, was simply to forgive and forget. Faced with the day-to-day experience of sectarian bitterness and all that flows from it, it is hardly surprising that many people in Northern Ireland do, indeed, long and plead for this to happen. The trouble is, and I ask you to take this very seriously indeed, “forgive and forget” does not work. It is untrue to the insights of

23144_GB.book Page 29 Monday, February 9, 2009 11:46 AM

Towards the Healing of History

29

human psychology, and, for that matter, it is bad theology as well. The only way to deal with deep pain and resentment, whether far in the past or a present experience, is not to forgive and forget but to remember and repent, or, if you prefer, to remember and change, or at lease initiate change. This was memorably expressed by the AfricanAmerican writer, Maya Angelou, in words that have defined much of my own work: “History, despite its wrenching pain / Cannot be unlived, but if faced / With courage need not be lived again.”6 The agony of Ireland, and, I dare to say, the agonies of which many of you have personal, and sometimes deeply painful, experience, come from a failure to apply that principle. We speak too readily of the need for forgiveness, without understanding that it begins with costly repentance. As Dietrich Bonhoeffer, a Christian minister who was executed by the Nazis, memorably wrote from prison: “There can be no such thing as cheap grace.”7 No, and there is no such thing as cheap forgiveness either. It is often objected that repentance, or apology, can have no place in the harsh world of politics – “the real world,” as people often call it. But memories stay alive in people and communities. We live on a selection of memories. In fact, unhealed memories are the stuff of politics and of community life. To repair the past is to prepare the future. In my judgment, there is ample evidence that the politics of penitence can indeed have lasting and beneficial effects. I cannot go into specific examples now, but the case is convincingly made, with numerous examples from the last sixty years, by Donald Shriver in an important book entitled An Ethic for Enemies. Like forgiveness, the word repentance falls from most western lips in reference to the crimes and the reformation of individuals. Rare as it may be in politics, however, there is such a thing as the repentance of institutions … Neither in personal nor political contexts is any human repentance ever quite complete. This is one of the gaps which forgiveness fills, especially the forgiveness that consists in the willingness of offended people to resume neighbourly relations with the offenders.8 I am suggesting that the only way to lasting reconciliation involves examining with courage and care the historical record, with as open a mind as possible, before we even think of setting it aside. How the historical record can be faced with courage is, of course, a

23144_GB.book Page 30 Monday, February 9, 2009 11:46 AM

30

Nicholas Frayling

very complex matter. A Protestant headmaster in Northern Ireland said to me, quite aggressively, “You don’t know what you’re talking about. There’s no such thing as history in this island, there are facts, and our facts will never be the same as their facts.” At first, that seems a shocking and thoughtless observation, but I invite you to examine your own study of history at school. If, like me, you are English, it was probably taught in a thoroughly Anglocentric way: I know it was in my school. It stands to reason, in the Irish context, that the events of Anglo-Irish history would be presented in a radically different way in, say, a Protestant school in the North than they would in a Christian Brothers school in the Irish Republic. You will know, from your own context, what I am saying. In other words, we have to acknowledge that all historical learning is, to a greater or lesser extent, culturally determined. On this basis, the headmaster’s remark is not so silly, and the connection that is often made between violent actions in the present and grievances in the past is at least understandable. But neither approach takes us very far. I suggest that Maya Angelou seems to offer the possibility of something better – the notion that to face the pain of history with courage is to make it less likely that we shall be condemned to endlessly repeat it. Let me give just two quotations which I find especially helpful, one from a politician and one from a Christian leader. Richard von Weizsäcker, then President of West Germany, later of the unified Germany, spoke in 1985 on the 40th Anniversary of the liberation of Auschwitz: “No feeling person expects young Germans now to wear a hair shirt merely because they are Germans. Yet their forefathers have bequeathed them a heavy legacy … All of us, whether guilty or not, whether young or old must accept the past. Whoever closes his eyes to the past becomes blind to the present. Whoever does not wish to remember inhumanity becomes susceptible to the dangers of new infection.”9 And in 1995, Robert Runcie, formerly the Archbishop of Canterbury, spoke in an act of worship to mark the fiftieth anniversary of the liberation of the Channel Islands – the only part of the United Kingdom to have been occupied by German troops during the Second World War: “It is in understanding that healing comes. Those who do not wish to look at the past or understand the past or heal

23144_GB.book Page 31 Monday, February 9, 2009 11:46 AM

Towards the Healing of History

31

our memories are the sort of people who become easy victims of fatal lies and suspicions about other people in the present.”10 Repentance is the sort of theological notion that people like me are apt to produce at conferences, but I have already suggested that it is a basic feature of human experience that you cannot have true reconciliation – be it personal or institutional – without sorrow and penitence, or apology and symbolic restitution. If we repent, others may choose to offer forgiveness – that is a matter for them – but it is not the main object. Repentance is important for its own sake – and for ours. Put even more basically, in the British/Irish context, there have been atrocities on all sides: violence begets violence, and blood will have blood, as the Scriptures teach us. But somebody always has to make the first move. What about this business of restitution, or reparation? Dudley Thompson, formerly the foreign minister of Jamaica, reminds us that this is no easy matter: “Reparations is not about asking for money. You can’t pay me for raping my grandmother. You cannot compensate me for lynching my father. What we demand is the restitution of our human dignity, the restoration of full equality, socially and economically, between the oppressors and the oppressed.”11 Restitution, reparation – penance, if you like – may be largely symbolic, but at least a sincerely conceived gesture, an attempt at restorative justice, is an inescapable part of the process of closure and moving on. Sorrow and penitence, then, are the business of theologians, but they have a wider and more worldly reference, too. They can provide a means, and sometimes the only means, to break an inherent pattern of evil and make possible new freedom of action. Furthermore, since sorrow and penitence presuppose humility, they are of particular benefit to the person or institution or nation that offers them. Much is made, and rightly, of the miracle of the new South Africa. Of course, the situation of Northern Ireland is hardly comparable, but I believe that South Africa has a vital lesson for us. When the will for change is strong enough on all sides, and where there exists creative and courageous political leadership, and where there are prophetic and engaged religious leaders, then – and perhaps only then – it becomes possible to sit down and discuss the unthinkable with those one has always regarded as unspeakable. Archbishop Desmond Tutu has expressed this with characteristic directness: “I have no doubt that repentance and forgiveness are

23144_GB.book Page 32 Monday, February 9, 2009 11:46 AM

32

Nicholas Frayling

indispensable for setting right relationships between those who have been wronged and the wrongdoers within nations and between nations. Unless you deal with the past in a creative and positive manner then you run the terrible risk of having no future worth speaking about. The past can have a baleful or beneficent impact on the future.”12 What occurred in South Africa involved a great leap of faith and creativity, which seemed miraculous at the time. Urging some such process of truth and reconciliation in Northern Ireland, a British member of Parliament, Kevin McNamara, said (in a speech at Westminster) in June 2004: “Surely if the recovery of truth is to serve as a step in the process of reconciliation, the beginning of truth must precede the final end of conflict. Of course, the recovery of truth has already begun. So, too, has the ending of conflict. We must bring the two processes together.”13 In Northern Ireland, the new Legislative Assembly, which came to fruition after the Belfast, or Good Friday, Agreement of 1998, was an astonishing advance and owed as much to the skill and persistence of Senator George Mitchell and the commitment of President Clinton as it did to the politically risky efforts of prime ministers John Major and Tony Blair. Yet now the assembly is suspended. Elections have been held, but they have been to an institution that remains in abeyance – an extraordinary state of affairs, and one that is fraught with danger for the democratic process. We have often been told that the longed-for breakthrough is near, that the parties would carry on talking; but one is forced to observe that the majority party refused even to meet, still less to sit down with, its main opponents. We should remember, however, that, until the assembly was suspended, people who in other circumstances would not speak to each other were discussing the nuts and bolts of a normal society: education, transport, commerce, healthcare, tourism. They did not, of course, discuss the decommissioning of paramilitary weapons in the same spirit, but even here, South Africa is instructive. Nelson Mandela has told us precisely how that issue became an almost impenetrable obstacle in the peace process. Indeed, it threatened to derail it. They dealt with it by deciding to sidestep it altogether, resolving to return to it when new institutions were firmly in place. They realized that no organization that defined itself as being made up of freedom fighters would ever lay down weapons in advance of

23144_GB.book Page 33 Monday, February 9, 2009 11:46 AM

Towards the Healing of History

33

a settlement as to do so would seem to be a defeat and would negate the sacrifices made along the way. How, then, are we to move forward? The beginning of wisdom is to acknowledge that we do not have all the answers. I guess that is why we are here. The German theologian Jürgen Moltmann has expressed this very well: Compassion … demands a solidarity that goes beyond activism and the illusion that there is something to be done about everything. It demands a fellowship in impotence, in helplessness, and even in silence. This is what I would call community in the depths. It has become something alien for modern men and women. They find it deeply repellent, because it is in such crass contradiction to their “active” attitude to living … Anyone who responds to pain merely with activity, to suffering simply with offers of help, and to grief with attempts at distraction, knows nothing about this solidarity in the depths.14 So we are to listen – not as those who come bearing gifts but, rather, as those who come in the certainty of their own inadequacy and impotence. I first began to learn that, incidentally, when I worked as a welfare officer in a large London prison, with some of the most degraded and disturbed men in British society. Our listening is not a substitute for action but an absolutely essential precursor. It is, if you like, the raison d’être of the peacemaker. But that does not make it straightforward. I was once involved in a discussion between some keenly motivated American conference delegates and a group of indigenous Americans. The delegates really did want to listen and learn, but one man could only say, and keep on saying, “You stole our land … You stole our land.” An ancient Babylonian text leaves us with these words: By three things does the world endure: Justice, truth and peace … The three are one, because if justice is done, truth has been effected, and peace brought about.15 The Palestinian Christian scholar, Dr Naim Ateek, reminds us again that the only way to peace is through the door of justice. That

23144_GB.book Page 34 Monday, February 9, 2009 11:46 AM

34

Nicholas Frayling

begins with listening and truth telling. Therein, and only therein, lies the beginning of trust, which is deeper than mere emotion. You would expect me, as a Christian priest, to approach this subject from a religious perspective, though I hope what I have said also has a more worldly and practical application. At the centre of the teachings of Jesus was forgiveness and tolerance, though balanced by a firm denunciation of injustice, oppression, and hypocrisy. He did not speak of the virtue of peace-loving or even peace-seeking. “Blessed are the peace-makers” is not the same thing at all. We can all take heart from this. Johnston McMaster, a Methodist theologian at the Irish School of Ecumenics, puts this very succinctly. He reminds us that peacebuilding and reconciliation are not merely secular activities. It may be that we in the faith communities have allowed the agenda to be secular-driven because it is worked out in the public square and because religion gets a bad press these days. And that is hard. But he reminds us, The church, mosque and synagogue are also part of that public square and need to be committed to its well-being and public good. Peace and reconciliation are relational issues and therefore spiritual issues. Secularists may see religion as a cause and an intensifier of conflict in society and therefore want to ignore or eliminate religion from the processes of societal transformation, peace-building and reconciliation. But whilst religion has much to acknowledge and repent of, and religious people and institutions require forgiveness and conversion, there are deep and authentic resources at the heart of all faith traditions which are indispensable for the processes of building new relationships, transforming communities; and imaging, and working for reconciliation. There is a spiritual depth, a mystical-prophetic treasure to be unearthed.16 I would add that this is surely nowhere more true than in the families of Abraham. What, we may wonder, would it mean for the Abrahamic spirit of peace and reconciliation to find fearless public expression in the Christian, Jewish, and Islamic communities of faith? I leave the question hanging in the air – it is one we should ponder carefully as we reflect on the practical working out of the making of peace in the circumstances of our own lives and in the communities to which we belong.

23144_GB.book Page 35 Monday, February 9, 2009 11:46 AM

Towards the Healing of History

35

My hope and my prayer is that our time together will renew our appreciation of the importance of reconciliation and, at the same time, awaken our sense of wonder at the richness of human diversity and experience so that we ourselves may become more effective bridge-builders and peace-makers. Above all, I hope that we may recognize the importance for this work of pardon and peace and that we may resolve to study and interpret the connection between the two.

notes The Very Reverend Nicholas Frayling is dean of Chichester Cathedral, uk. 1 Since this paper was delivered in 2005, there has been remarkable progress towards reconciliation in Northern Ireland, but it is the author’s contention that underlying, historically rooted causes of mistrust remain to be addressed. 2 Naim Ateek, Justice and Only Justice (Maryknoll, ny: Orbis Books, 1989). 3 George Bell, Bishop of Chichester, 1929-58. 4 Nicholas Frayling, Pardon and Peace: A Reflection on the Making of Peace in Ireland (London: spck, 1996). 5 Niketu Iralu, “Who Will Break the Chain of Hate?” For a Change: Journal of Initiatives of Change (August/September 2004): N.p.5 6 Maya Angelou, On the Pulse of Morning (New York: Random House, 1993). 7 Dietrich Bonhoeffer, 1906–45, Letters and Papers from Prison (London: scm Press, 1971). 8 Donald Shriver, An Ethic for Enemies: Forgiveness in Politics (New York: Oxford University Press, 1995), 164, 167. 9 Richard von Weizsäcker, “Speech to the Bundestag 1985,” in Shriver, An Ethic for Enemies. 10 Robert Runcie, unpublished sermon, May 1995, Guernsey. 11 Dudley Thompson, quoted in The Witness, December 2002. 12 Desmond Tutu, “Foreword,” in The Politics of Peace, ed., Brian Frost (London: Darton, Longman and Todd 1991), viii. 13 Kevin McNamara, mp, Speech in the House of Commons, uk, June 2004. 14 Jürgen Moltmann, The Power of the Powerless (London: scm, 1983). 15 “Ancient Babylonian Talmud,” in With Sure Fierce Love, Tony Graham (unpublished) 1999. 16 Johnston McMaster, paper delivered at uk Fellowship of the Kingdom Conference, Willersley Castle, Derbyshire, summer 2003.

23144_GB.book Page 36 Monday, February 9, 2009 11:46 AM

4 A Dialectic of Acknowledgment TRUDY GOVIER

In contexts of reconciliation, it is extremely common to speak of acknowledgment and to emphasize its importance for reconciliation. In these instances, what is usually at stake is the acknowledgment of wrongs committed by some persons and groups against others. Acknowledgment of such wrongs is regarded as pivotal in reconciliation and as constituting a necessary first step towards dealing with the past and achieving something like sustainable peace.1 Typically, calls for acknowledgment in these contexts do not pause to explain what acknowledgment amounts to or even to define the term. Nor do they include explanations of just why acknowledgment is so central to reconciliation. I have explored these issues in other writings, so will offer only a brief statement here.

w h at i s a c k n ow l e d g m e n t ? Clearly, acknowledgment is related to knowledge. It includes knowledge plus “ac,” where “ac” stems from the Latin word “ad,” which means to or towards. Acknowledgment adds something to knowledge. When we acknowledge something, we mark our knowledge or awareness of that thing, and we mark that knowledge to someone. Typically, knowledge is marked by being verbally articulated to other persons. There are, however, forms of acknowledgment that are not verbal. (We may acknowledge the presence of another person by saying hello or, non-verbally, just by nodding.) Not all acknowledgment is acknowledgment to another person; we may also acknowledge things to ourselves. Or we may fail to do so. For example, people may have evidence strongly suggesting that they have

23144_GB.book Page 37 Monday, February 9, 2009 11:46 AM

A Dialectic of Acknowledgment

37

personal failings in such areas as substance abuse or that they have symptoms of serious diseases such as diabetes or cancer and nevertheless fail to acknowledge such things to themselves and to others. Denial of our failings and problems is tempting and common. In fact one author, Stanley Cohen, has urged that denial is in fact more normal and common than acknowledgment. Cohen claims that, in contexts in which what we are being asked to acknowledge is something with negative implications, denial is actually more common than acknowledgment; on this account, it is acknowledgment rather than denial that calls for special explanation.2 It is possible to make many distinctions regarding acknowledgment. There are different modes of acknowledgment: for example, it may be granted in words, gestures, memorials, works of art, and rituals or ceremonies. There are different agents of acknowledgment: it may be expressed by the self, by other individual persons, or by corporations, communities, or states through their representatives. There are different recipients of acknowledgment: it may be the self, another individual, a community, or a larger group. And we can make distinctions with regard to the content of the acknowledgment. In this area, three significant kinds of acknowledgment can be distinguished. These are: 1 Existential acknowledgment. What is acknowledged is the existence of an individual or group and the moral stature and entitlements of these people based on their proper existential status. Existential acknowledgment may seem insignificant or even peculiar until we stop to reflect on how people can be utterly denigrated and ignored to the point where their existence goes unrecognized. Sadly, examples abound. According to the doctrine of terra nullius, for example, Australia was an empty country and thus appropriate for European settlement. That doctrine was a failure of existential acknowledgment; the Aboriginal people were treated as though they did not exist. In South Africa under apartheid, census information before 1994 did not count black Africans; they quite literally did not count, and much planning was based on simply ignoring the fact of their existence and entitlements. Existential acknowledgment is an articulation and acceptance of the fact that some previously denigrated persons do count, do have status as human beings with rights and dignity, and do have a claim to have their voices heard.

23144_GB.book Page 38 Monday, February 9, 2009 11:46 AM

38

Trudy Govier

2 Aversive acknowledgment. What is acknowledged is something unwelcome. In personal contexts, this may be a health problem such as alcoholism or symptoms of cancer, or a personal failing such as forgetfulness or irritability. In interpersonal contexts, it is often a wrong committed against another person. Aversive acknowledgment gets its name because we are so often averse to admitting unpleasant things. An implication of acknowledging that there is a problem or that there has been a fault is that we act in some way; such recognition will often be resisted. In contexts of reconciliation, aversive acknowledgment is usually the admission that one bears or shares responsibility for wrongs against others, has harmed them, and accepts one’s accountability in that context. It is aversive acknowledgment that is most emphasized in thought about reconciliation. Victims cry out for it – and perpetrators tend to resist it. 3 Affirmative acknowledgment. What is acknowledged is something positive – the success, accomplishments, or good qualities of a person. It is affirmative acknowledgment that we find in the prefaces of books, where men used to acknowledge the secretarial efforts of their wives and women now acknowledge the computerrelated assistance of their husbands. Affirmative acknowledgment is typically offered to other people; it is an expression of our recognition and appreciation of their skills, efforts, and contributions. People generally like to be affirmatively acknowledged for their efforts and accomplishments; they find in it incentives to continue and find its absence discouraging. We may also affirmatively acknowledge characteristics or actions of ourselves. For example, a person may acknowledge his skill at cooking or sports, or his qualities as a strong singer or a good host. Such acknowledgment is important in building and retaining self-esteem and self-respect and in realistically deliberating about plans and goals. If we fail to acknowledge our own positive capacities and accomplishments, we are likely to plan in an unrealistic way, undermining our opportunities and our potential. Although these contents of acknowledgment are logically distinct, they may be significantly related in practice. To return to a focus on reconciliation contexts, failures of existential acknowledgment may have contributed profoundly to serious wrongs committed against those persons and groups whose existence was denied or ignored. That combination of attitudes and policies was characteristic of

23144_GB.book Page 39 Monday, February 9, 2009 11:46 AM

A Dialectic of Acknowledgment

39

settler societies. In such contexts, aversive acknowledgment and existential acknowledgment will be closely associated. It is because people were not in the full sense counted as human beings that they could be wronged in such significant and appalling ways as having their land taken from them and their culture and human status ignored. In an aftermath in which people acknowledge that past practices of racism and colonialism were wrong, they will, in effect, also be acknowledging that the black or brown people whom they failed to consider were people who should have counted. These were people who were human beings with dignity and rights and who should have been treated as such. Thus, existential acknowledgment may be connected with aversive acknowledgment. Existential acknowledgment can also be connected with affirmative acknowledgment, where that has been denied as a corollary of denying or ignoring the existence and status of some group. Obliviousness to the very existence of a group will also mean obliviousness to its culture, traditions, and practices. Recognizing the group as a human group with its own history and traditions may lead to an awareness and appreciation of its achievements and a sensitivity to its importance. Conversely, to ignore or deny the achievements of people – whether individuals or groups – may go so far as to amount to an insult. In extreme cases, this failure of acknowledgment may be so hurtful as to feel almost like a failure of existential acknowledgment. (One man, for instance, left the room whenever his wife asked their daughter about her professional activities. The daughter felt profoundly hurt and insulted; he acted as though these activities and her very self, as a professional person, just did not exist.)3 People whose achievements are, in some context, systematically ignored may begin to feel as though they are doing nothing in this world and that they scarcely exist at all. In contexts of reconciliation, the relevance of affirmative acknowledgment is not always obvious. It is possible, however, that offering affirmative acknowledgment to former opponents would be an important way of making overtures and might support efforts to elicit aversive acknowledgment.4

r e c o n c i l i at i o n a n d av e r s i v e a c k n ow l d e g m e n t: s o m e c o m p l e x i t i e s In contexts of reconciliation, when people allude to the central importance of acknowledgment, they are generally referring to aversive acknowledgment. Typically they are referring to the

23144_GB.book Page 40 Monday, February 9, 2009 11:46 AM

40

Trudy Govier

acknowledgment that perpetrators of wrongs would grant to victims of those wrongs. If an oppressive or violent situation is to be transformed into something better, victims have to be reassured that they will not be wronged again, and for that reassurance to be given, acknowledgment that wrongs have been committed is necessary.5 Acknowledgment that certain actions – and by implication similar actions – were wrong implies a commitment that such things will not be done again. Statements of acknowledgment serve as a form of reassurance and a basis for the establishment of some degree of trust. Without such acknowledgment, there would seem to be little basis for the restoration of trust. Acknowledgment offers a kind of vindication to victims: a public articulation of the fact that they were wrongfully harmed and did not deserve the treatment they received.6 Receiving an acknowledgment, those who were wronged are likely to have a sense of relief because their claims are no longer denied. People commonly seek vindication in the aftermath of wrongdoing because wrongs, by implication, deny worth and status. Acknowledgment unstates such implications and thus seems to legitimate victims’ claims and status and vindicate their status and position. If we examine further the need for aversive acknowledgment, we will see that it has a certain logical complexity. There are a number of key elements. If a perpetrator, P, acknowledges that he has wronged a victim, V, in committing an act, W, then all the following presuppositions hold: • • • •

act W did occur act W was wrong act W was done by P P was responsible for committing act W

If perpetrator individuals or groups seek to avoid aversive acknowledgment there will, accordingly, be many approaches to doing so. They may deny that the act, as described, even happened – insisting that nothing happened or that something else happened, something described so as not to be brandable as wrong. (“We did not torture anyone, we merely carried out a lengthy interrogation to get the information we had to have.”) They may allow that the act was wrong but insist that they did not do it: it was done by other agents or perhaps it just “happened” and was not committed by anybody

23144_GB.book Page 41 Monday, February 9, 2009 11:46 AM

A Dialectic of Acknowledgment

41

in particular. They may allow that the act as described did occur, was wrong, and was committed by them, but they may deny responsibility for it, arguing that, in the circumstances, it was excusable or even justifiable because there was no real alternative. There are further complications too. In conflicts there are often many persons who are both victims and perpetrators.7 They are victims in the sense that they have been harmed by the wrongful acts of others, and they are perpetrators in the sense that they have committed wrongs themselves. Given the many acts and many contexts in which people can be involved in serious political conflicts, it makes sense to think of “victim” and “perpetrator” as roles that people play. If we do that, then being both a victim and a perpetrator is no more complex than being both a teacher and a mother or both a carpenter and an activist. (From the point of view of logic and common sense, at least.) In life, people occupy many roles. However, in the aftermath of conflict there is a strong tendency for people to identify themselves – and for others to identify them – as either victims or perpetrators, not both. Often there is a kind of central and paradigmatic act in the life of a person affected by a conflict, and it is the person’s role in that context that dominates his or her self-conception. Because they are harmed in various ways, many people identify strongly as victims and then, on that basis, resist any suggestion that they were implicated in wrongdoing or shared responsibility for negative events. The tendency to simplistically dichotomize victim and perpetrator roles provides further paths to resist aversive acknowledgment. An individual or group is committed to the idea of victimhood and, understanding victimhood simplistically, will deem itself innocent, passive, and blameless and will, thereby, resist acknowledgment of wrongdoing. Aversive acknowledgment is something that victims want to receive, and their wanting to receive it is understandable and justified. All too often, however, aversive acknowledgment is not something that perpetrators want to give. Perpetrator groups and individuals often resist any implication that they are responsible for wrongdoing. And there are many logically available roads to resistance.

w h y i s a c k n ow l e d g m e n t i m p o r ta n t ? Acknowledgment is articulated or embodied awareness.8 It is the expression of knowledge, typically its public expression. In contexts in which it is public acknowledgment that we are considering,

23144_GB.book Page 42 Monday, February 9, 2009 11:46 AM

42

Trudy Govier

acknowledgment functions to name or point to a reality and to mark that reality externally.9 To acknowledge a reality is to incorporate into our deliberations the awareness and recognition that the reality does exist and needs to be marked. To acknowledge is not to deny; it is not to ignore; it is not to deceive or self-deceive. It is worth exploring just why acknowledgment is so important – assuming that we grant that it is so. Responses to this question can be given from three different points of view. From the point of view of victims, aversive acknowledgment is important. They have been harmed by acts done to them; their lives and social reality have been significantly affected by those acts. If what happened is not acknowledged, their own lives will take on a quality of unreality. The phenomenon of harmful denial is notorious in contexts of sexual abuse if abused persons are expected to live as though these things never happened to them at all. In contexts of oppression or political conflict, acknowledgment that certain acts were wrong implies a commitment not to do these things again, and this offers a degree of reassurance to victims. It offers a kind of vindication to victims as it is a public statement that they did not deserve the kind of treatment they received. Acknowledgment that what was done was wrong amounts to a retraction of the message of worthlessness implied in the original wrongdoing. Identity and status are implicitly recognized in the aversive acknowledgment. (Aversive from the point of view of perpetrators, it is sought by victims.) From the societal point of view, acknowledgment constitutes an articulation of fundamental values and a commitment to uphold them. The public discussion that precedes acknowledgment is often instructive and helpful for a society since it provides many occasions to reflect upon contested narratives, interpretations, and values. In contexts in which the wrongs committed amounted to an expression of distorted norms, such as racism or ethnic prejudice, acknowledgment that those acts were wrong and should never have been committed amounts to a public airing of arguments for better standards. From the perspective of societies in transition, acknowledgments imply and express norms of human rights and a resolve to reform and amend. Statements and acts of acknowledgment say, in effect, “what was done in the past was wrong; it will not happen again because the error of these ways has been understood; we are committed to new values.” From the point of view of perpetrators, matters often look otherwise: acknowledgment will often appear as a cost rather than as a

23144_GB.book Page 43 Monday, February 9, 2009 11:46 AM

A Dialectic of Acknowledgment

43

benefit. Acknowledgment is desired by victims and is beneficial and constructive for them and for society. But when we are speaking of aversive acknowledgment – as is usually the case in contexts of reconciliation – this is not likely to be an attractive thing for perpetrators. It seems that they are being asked to give something but cannot expect to receive. There are many logical routes to denial, and these can be attractive for persons drawn to a political struggle. Many such persons honestly believed that they were fighting for a just cause in the only way they could and were entirely justified in committing killings, maimings, beatings, and even torture. In the case of some persons drawn to a violent struggle or career in a questionable occupation (policeman or jailer for an abusive regime, for instance), their identity, purpose, and career may be tied to their role in the former conflict. The term “acknowledgment” is passive, and it is passive in a way that can be seriously misleading. The point is, victims can receive acknowledgment only if somebody grants it, and the most obvious persons to do so are the perpetrators – those individuals and groups who share responsibility for having committed the wrongs. Clearly, what is called for in such cases is aversive acknowledgment, and the problem is that perpetrators are very often highly averse to offering it. They may confuse the humility of apologizing with humiliation itself, or they may fear onerous obligations in the areas of restitution and redress. We are thus led to the question: what is in it for perpetrators, so far as acknowledgment is concerned? The answer to this question is far from clear, and, indeed, few of the accounts of reconciliation that emphasize the importance of acknowledgment go so far as to allow for this profound and basic difficulty. The lack of such an account may be referred to as a gap in the theory of acknowledgment.

t h e g a p : p r o b l e m s w i t h p e r p e t r at o r a c k n ow l e d g m e n t Perpetrator resistance to acknowledgment is notorious and common. It has many sources, not all of which can be explained here. They include, at least, the following: 1 A sense of righteousness. Under an oppressive regime, agents of the state may claim, and may even believe, that they were doing the best they could for their country. After the fall of the East German

23144_GB.book Page 44 Monday, February 9, 2009 11:46 AM

44

Trudy Govier

regime and state, some persons who had worked for and within the notorious Stasi secret police claimed that they had actually been trying to reform the system from within – as did many who worked for South Africa’s apartheid regime once that regime had been replaced by the 1994 election. Persons who have carried out oppression, abuse, torture, or other forms of violence often claim only to have been doing what they needed to do in order to survive and support their families, and they claim to have been perfectly justified in doing it, given their circumstances. In contexts of sporadic paramilitary violence (as in Northern Ireland) or civil war (Sierra Leone or the former Yugoslavia), people may claim that they had to use violence to defend their community against opponents who were threatening its very survival or to get rid of a corrupt government that had no legitimate authority. Reconciliation between political opponents may be understood as the improvement of relationships between former opponents – an improvement that will provide a sense of trust sufficient for coexistence and cooperation. Reconciliation in this sense becomes an issue in the aftermath of oppression or war, when there is a fairly stable ceasefire and the situation is one of transition. But the fact that a situation is one of aftermath and transition does not mean that the values and interpretations of the past have disappeared in that context. Such values and interpretations will be held, even clung to, by many who have led their lives accordingly. 2 Narrative divisions. This point is much the same. People interpret situations and events differently and, according to their different situations, see their own side and their own selves as in the right. If they are in the right, there is no need to acknowledge wrongs because, according to their own narrative, they never committed any. 3 Denial, refusal to give up one’s narrative and the sense of identity and purpose that that narrative provides. The narrative may be highly functional and may have been so central in one’s life as to provide the organization and focus of that life. If one could no longer think of oneself and one’s activities in these terms, because public discourse had put in question and sought to overcome the past conflict, what kind of alternative identity and narrative would one develop? The question may be posed by some as a purely rhetorical one, to which the obvious response is that no alternative identity and sense of purpose is available. But it should be understood as a real question, a question calling for a real

23144_GB.book Page 45 Monday, February 9, 2009 11:46 AM

A Dialectic of Acknowledgment

45

answer. When the answer is not obvious, there are clear motivations for understanding oneself and one’s group in terms of the previous struggle, and the implication of that understanding will be a refusal to acknowledge wrongdoing. 4 Criticism of victims. Victims may be criticized on various grounds. It may be alleged that they are by no means innocent themselves and were in fact (wholly, or also, or in part) perpetrators and that they are morally arrogant because they refuse to acknowledge their own faults. It may be argued that victims do not deserve acknowledgment since they are not as blameless as they take themselves to be. Victims who seek acknowledgment may be understood as demanding moral victory and, thereby, effectively continuing the conflict that is supposed to have ended; they may be accused of refusing to move effectively into the future on the grounds that they are inappropriately fixated on the past.

a s ta l e m at e ? If perpetrators will not acknowledge, and acknowledgment is essential for reconciliation, is reconciliation then impossible? It may seem that a compelling argument can be constructed to just this effect. And such an argument need not be based on purely abstract and philosophical considerations; there is ample empirical evidence that many perpetrator groups and individuals are unwilling to engage in aversive acknowledgment. People who have engaged in acts of violation and violence see themselves as justified, are reluctant to revise their political narratives, and are frequently just not willing to offer the kind of aversive acknowledgment that victims want and transitional societies need. There is little point in seeking to coerce confessions: the result would almost certainly be insincerity and falsehood. Much popular thinking is based on victim/perpetrator dichotomies that set the innocent victim against the evil perpetrator. Perpetrators are typecast as “bad guys” while victims get the moral upper hand, sometimes to absurd extents. If one is deemed to be a victim, one will be regarded as righteous and deserving, whereas if one is deemed to be a perpetrator, one will feel humbled, even humiliated, and be liable to pay costs. Given the natural human desire to preserve a positive self-image and the moral and legal liabilities or perpetratorhood, few will wish to accept perpetrator status. Given the tendency to think in terms of a fixed victim/perpetrator dichotomy, a

23144_GB.book Page 46 Monday, February 9, 2009 11:46 AM

46

Trudy Govier

“perpetrator” role, status, and identity will seem to be implied by the acknowledgment that one has committed serious wrongs against others. Accordingly, people have many incentives to avoid such acknowledgment. It would be aversive, and they will be averse to it. This is not the end of the story, however. Arguments for the importance of acknowledgment are not refuted by the fact of its difficulty under some circumstances. When perpetrators are unwilling to acknowledge, victims will be resentful and suspicious. Wrongs that are not acknowledged leave victims with a sense of frustration and unreality and with good reason to suspect that the unrepentant will commit wrongs again. After all, these people have not even managed to understand and admit that these things were wrong in the first place. In such contexts, victims’ warranted distrust will be a fundamental obstacle to improved relationships with perpetrators and, thus, a fundamental obstacle to reconciliation itself. Reconciliation may be understood as the process of establishing improved relationships between previously alienated individuals and groups. People who were separated by violent conflict have to be able to work together to construct and run a society in its aftermath, so relationships are of the utmost importance. To work together, people need to cooperate – and to cooperate they need to trust each other, at least to some extent. And yet, perpetrator denial and resistance are real and pose profound difficulties. As sustainers of distrust, perpetrator denial and resistance are clearly obstacles to reconciliation. The gap in the theory of acknowledgment is serious, both in theory and in practice. Perpetrator acknowledgment seems to be essential because of its pivotal connection with issues of trust and confidence. What can be said in response to this fundamental problem? Does the gap in the theory of acknowledgment provide a general argument for the impossibility of reconciliation?10

t h e p r e m at u r i t y o f d e s pa i r To despair would be premature: difficulties are not impossibilities. Against generalized pessimism, the approaches presented in the following sections may be explored. Restoring Wrongdoers Perpetrator resistance may itself be combated, in theory and in practice. From a theoretical point of view, we may begin by considering

23144_GB.book Page 47 Monday, February 9, 2009 11:46 AM

A Dialectic of Acknowledgment

47

the ancient Socratic/Platonic doctrine that a wrongdoer harms himself. We may posit that persons who have carried out acts of oppression, brutality, or violence have some kind of conscientious awareness that their acts were violations against their fellow human beings and were for that reason wrong. On this view, protestations of righteous justification are not to be interpreted as fully genuine. We will stipulate that persons who have committed serious wrongs must feel inner discomfort as a result, even when they do not acknowledge that deep discomfort, even to themselves. On the basis of such a presumption, we can say that reluctant perpetrators are, after all, human beings who must suffer inner guilt and feel a need to express remorse and be forgiven. In violating others, these people have violated themselves and the humanity within themselves. In harming others, they have harmed themselves; by acting cruelly to others, they have acted against something deep in themselves. On these presumptions, it is not only victims who need restoration: perpetrators need it too, and their aversive acknowledgment will be the first step. That need fills the gap in the theory of acknowledgment. By acknowledging what they have done, perpetrators can arrive at a condition in which they can accept any forgiveness that might be offered. (To accept forgiveness from another, one has to acknowledge that one has done something wrong, something for which forgiveness would be appropriate.)11 If one is genuinely forgiven and reaccepted by a community, one can proceed from remorse and acknowledgment in the direction of moral change and a new life, providing for identity and meaning that transcend the framework of the original oppression or conflict. Following through this account, we can identify a route to the rational persuasion of reluctant perpetrators. We presume, for general philosophical reasons, that such perpetrators do have latent feelings of guilt and discomfort and that the expression of acknowledgment and remorse will benefit them by relieving these feelings. We then try to show how acknowledgment, improved relationships with victims and society, and reintegration will benefit perpetrators as well as victims and society. Combining Affirmative and Aversive Acknowledgment Perpetrator groups and individuals are rarely to be understood solely in terms of that role. To the extent that they have made such contributions to the aftermath, those positive contributions should

23144_GB.book Page 48 Monday, February 9, 2009 11:46 AM

48

Trudy Govier

be affirmatively acknowledged. Positive capacities and potential should be acknowledged so as to provide a sense of positive alternative roles. In these ways, those seeking improved relationships can offer to perpetrators the promise of new identity and meaning. The Role of Third Parties Wrongs carry messages of insult; those messages have been communicated by perpetrators; it is, accordingly, perpetrators who are in the most significant position when it comes to retracting those messages. However, perpetrators are not the only parties who can offer acknowledgment: third parties may also do so. To victims, acknowledgment on the part of perpetrators will probably be most significant; nonetheless, there is such a thing as third-party acknowledgment. Significant third parties include bodies of the state such as courts, truth commissions, and boards of inquiry; representatives of bodies outside the state, such as the United Nations; counsellors and therapists; and family and community representatives. Many victims need to hear that what was done to them was wrong and that they did not deserve to suffer as they did. They need a public confirmation of their sense of reality, in which the wrongs and resultant harms figure profoundly. Public vindication can be offered in many ways, and third parties have important roles to play. Indirect Reconciliation The emphasis placed on acknowledgment seems to presume a timeline. We are inclined to think this way: first, there must be acknowledgment. Then trust can be built. Then there is some degree of reconciliation, and then reconciled parties can work together cooperatively. The idea of indirect reconciliation can be understood as a reversal of this timeline. Indirect reconciliation – so called because it seeks to avoid acknowledgment and explicit discussion of the rights and wrongs of the past – is predicated instead on joint practical activity.12 Previously opposed people are brought together in a context in which they participate in joint activities. Circumstances are such that, to complete necessary tasks, they need to cooperate. Having to cooperate, they will discover that they can cooperate, and, as a corollary, they will discover that, within some limits, they can rely on each other and trust each other. Such trust marks the beginnings

23144_GB.book Page 49 Monday, February 9, 2009 11:46 AM

A Dialectic of Acknowledgment

49

of reconciliation – a reconciliation to be achieved even in the absence of aversive acknowledgment by perpetrators.

concluding comments I have argued here that acknowledgment is central for reconciliation in the aftermath of serious political conflict. I have contended, however, that the nature and varieties of acknowledgment have received insufficient attention and that the obstacles to it may be considerable. My understanding of reconciliation itself presumes that it should be understood with reference to trust. Reconciliation may be understood as requiring, centrally, the building of trust between previously alienated individuals and groups. If persons alienated by oppression and conflict are to live in a society together, they will need to cooperate. In societies in transition, there are many tasks of building and rebuilding, which people need to do together. To cooperate, they require some degree of trust. How much trust? That depends on the context and the kinds of cooperation needed for former opponents to live together again in a society characterized by decent relationships, reliable institutions, and sustainable peace. The centrality of relationships and the need for some degree of trust within those relationships permit us to understand more specifically why acknowledgment is so central to reconciliation and why obstacles to it should be seriously considered. The obstacles are significant – but so, too, are the means by which we can work to overcome them.

notes Trudy Govier is a professor in the Department of Philosophy at the University of Lethbridge. 1 One early reference is in Lawrence Weschler, A Miracle, a Universe: Settling Accounts with Torturers (New York: Penguin, 1990). Another is my own “What Is Acknowledgment and Why Is It Important?” in Dilemmas of Reconciliation, ed. Carol A.L. Prager and Trudy Govier, 65–89 (Waterloo, on: Wilfrid Laurier University Press, 2003). References to acknowledgment are prominent in the South African trc Final Report (???: Government of the Republic of South Africa, vol. 1); the Peru Truth and Reconciliation Final Report (translated from the Spanish by the

23144_GB.book Page 50 Monday, February 9, 2009 11:46 AM

50

2 3 4 5

6 7 8

9 10

11 12

Trudy Govier

International Center for Transitional Justice, available at , viewed November 2004); the Final Report of the Canadian Royal Commission on Aboriginal Peoples (Ottawa: Ministry of Supply and Services, 1996); and many similar documents. Stanley Cohen, States of Denial: Knowing about Atrocities and Suffering (Cambridge, uk: Polity Press, 2001). Personal story. I return to this theme later. Normally. If there is such a thing as indirect reconciliation, within which trust is built as a by-product of cooperative activity rather than a workingthrough of narratives about the wrongs and rights of a conflict, then acknowledgment is not strictly necessary. This theme is discussed briefly later. A discussion of vindication is offered in my Forgiveness and Revenge (London: Routledge, 2002), chap. 1. Argued more fully in Trudy Govier and Wilhem Verwoerd, “How Not to Polarize ‘Victims’ and ‘Perpetrators,’” Peace Review 16, 3 (2004): 371–7. The words “or embodied” are added to allow for the possibility of acknowledgment expressed through external symbols other than words – symbols such as monuments, for example. My understanding of these themes has been assisted by discussions with Karl Tomm. This doctrine could also be given a Kantian interpretation, as may be clear when we think of it in terms of violating the humanity (reasoned interpretation of something like the categorical imperative) in oneself. This theme is discussed in Govier, Forgiveness and Revenge, chap. 3. My understanding of this approach has arisen from presentations by Derek Evans and discussions with Wilhelm Verwoerd.

23144_GB.book Page 51 Monday, February 9, 2009 11:46 AM

PART TWO

Reconciliation in Practice: Evaluating Instruments and Initiatives

This page intentionally left blank

23144_GB.book Page 53 Monday, February 9, 2009 11:46 AM

5 Transitional Justice in Morocco: Lifting the Veil on a Hidden Face1 VEERLE OPGENHAFFEN MARK FREEMAN

i n t ro du c t i o n My story is that of thousands of Moroccans. I dream of lifting the veil on the dark years without fear of repression in the future. Jamal Ameziane2

Morocco has long enjoyed a reputation as a moderate “bridge” state capable of linking disparate regions and balancing international political tensions. Former King Hassan II embodied this quality in his ruling style. Yet behind his well-groomed reputation as a modern international ambassador, there was a hidden face. A skilled middleman, the king possessed a unique capacity for appearing to move towards democracy and human rights while, “when necessary,” quietly ruling with an iron fist behind the scenes.3 From 1956 to the early 1990s, Moroccans experienced an era of fierce repression that saw the monarchy’s power consolidated under a vast and tightly controlled web of allegiances and punishments.4 Those who were considered a threat to either the territorial integrity or absolute rule of the palace were subject to a wide range of human rights violations. Thousands were arbitrarily detained, arrested, tortured, and forcibly disappeared, leaving behind a dark and painful chapter in the country’s history. In the early 1990s, the wall of denial around this era began to crumble, making way for a gradual, but meaningful, reckoning with the past. Since January 2004, the Moroccan Fairness and Reconciliation Commission (Instance Équité et Réconciliation [ier]) has been working on addressing the terrible legacy of this era with a view to

23144_GB.book Page 54 Monday, February 9, 2009 11:46 AM

54

Veerle Opgenhaffen and Mark Freeman

building a stronger human rights culture for Morocco in the new century. Empowered to investigate some of the worst past human rights violations and to grant compensation for victims and families, this commission represents a groundbreaking mechanism for the entire region. As a truth-seeking body, it is an anomaly because it was initiated without an official regime change. It is also exceptional in that it has the blessing of a king who is examining the crimes of his own father, and it is made up of many former victims of arbitrary detention and torture. In addition, it is the first truth commission to have been established in the Arab world. These unique factors make the Moroccan experience one that could have a significant regional and international impact, though at present it remains relatively unknown.5 This chapter seeks to trace the events that led to the development of the ier and its present work, providing both a historical reference and laying the foundation for a more thorough analysis once the commission’s work has been completed.

b ac k g ro u n d : t h e e r a o f r e p r e s s i o n (1950s-1990s) Morocco has always been a case apart in the Arab-Muslim world. Standing at the northwestern tip of Africa, only a few miles from the southern tip of Spain, Morocco is at the crossroads of Christian and Muslim worlds, and the European and African continents.6 The influences of these traditions, and many others (not least that of the indigenous Berber culture), are apparent throughout Morocco.7 Until the twentieth century, the Alawi monarchy ruled Morocco. Based on the Sharifian principle, Morocco’s monarchs are considered direct descendants of the Prophet Muhammed. This makes them both the temporal and spiritual rulers of the country.8 From 1912 to 1956 the country was a protectorate of France (in the south) and Spain (in the north), but in 1956 Morocco regained its independence and the monarchy was restored. Today, Morocco is a constitutional monarchy, with political power concentrated in the king and only limited powers residing in the elected Parliament. The population of Morocco, overwhelmingly arabophone and Muslim, consists of over 30 million inhabitants. There is also a very large Moroccan diaspora (almost 2 million persons) that is concentrated in Europe, especially in France. Though a stable country, it remains very poor, with high rates of unemployment and low levels

23144_GB.book Page 55 Monday, February 9, 2009 11:46 AM

Transitional Justice in Morocco

55

of literacy. At the same time, among Arab countries Morocco stands out for its relative openness and tolerance. Political Turmoil, Reward, and Punishment The era of widespread repression in Morocco, commonly known as the “years of the gun” (les années de plomb), began shortly after Morocco gained its independence from France in 1956.9 The roots of state violence stemmed from the struggle for independence, which spawned two major political parties vying for greater measures of control, and left the monarchy feeling threatened.10 This political threat, coupled with regional revolts against poverty, created a vast population of “suspects” to which King Mohammed V dealt swift blows in an effort to eliminate any rumblings of dissent. Entire areas that had joined in the struggle for independence were subjected to severe crackdowns by the makhzen,11 which was anxious to consolidate centralized power as a new state. The Northern Rif region, for example, found its anti-colonial struggle turned against it as soon as independence was achieved. Left out of the new and narrow power balance, the region revolted in 1958, only to be brutally crushed by the Royal Armed Forces, resulting in thousands of deaths and continuing oppression that would last several decades.12 This kind of violence was but one of many tactics the newly independent Moroccan monarchy employed to consolidate its rule in the early postcolonial years. When Hassan II inherited the throne from his father in 1961, he adopted a less blunt style of repression – one that blended handsome rewards and harsh punishments. The new king’s preferred tactic was to woo potential power contenders by incorporating them into a web of loyalty consolidated in generous land grants, business deals, and semblances of governance.13 Indeed, Hassan II’s skill lay in the fact that he “could co-opt members of various parties, squelch dissent, crush enemies, and still be regarded by many as a beloved monarch.”14 The 1960s and 1970s witnessed the worst of the king’s tactical handling of his perceived or potential enemies. These were politically contentious times around the world, and Morocco was no exception to a global trend to suppress “dissent.” Trade unionists, Marxists, intellectuals, farmers, Islamists – basically anyone suspected of being critical of the monarchy – could potentially be subject to a wide range of punishments, often just for the “crime” of a rumoured political affiliation.15

23144_GB.book Page 56 Monday, February 9, 2009 11:46 AM

56

Veerle Opgenhaffen and Mark Freeman

The crackdown was especially severe against members of the leftleaning unfp party, whose leader, Mehdi Ben Barka, was forced into exile in France, then kidnapped and killed under questionable circumstances – circumstances that remain unresolved to this day. Speculations around his death have implicated a range of French, Moroccan, and American agents who appear to have colluded in his disappearance and death. It is rumoured that, after he was tortured and killed in France, two cia officers instructed Moroccan security on how to dissolve his body in a vat of acid.16 Later, two unsuccessful military coup attempts in 1971 and 1972, respectively, led to mass arrests, military trials, and even the executions of those thought to be linked to the internal revolt. Many who received prison sentences were transferred to secret detention centres to serve terms that exceeded their sentences, often in conditions that led to long, slow deaths. Even when there were trials, they were often conducted “en masse” and, by all accounts, were shams.17 Punishment was meted out broadly, sometimes drawing in family members who were disappeared together for decades at a time.18 The majority of Hassan II’s victims were the Sahrawis of the Western Sahara.19 Under Spanish colonial rule since 1884, the region had a long history of struggle against external power. The discovery of high-grade phosphate deposits there in 1949 increased Spanish resistance to allowing Sahrawi self-rule.20 In 1973, the indigenous Polisario movement began a determined armed defence of the territory, but Spain retained enough control over the region to make it one of the largest exporters of phosphates in the world. When Spain eventually experimented with self-rule for the Sahrawi people, Morocco, Algeria, Mauritania, and (later) the un became involved. In 1974, Spain accelerated plans to grant autonomy to the region, albeit reserving rights to export phosphates. In 1975, as Spain’s Franco lay dying, the International Court of Justice issued a judgment against Morocco’s claim to rule the region. In November 1975 Hassan II, sensing an imminent loss of control, ordered the so-called “Green March” to lay claim to the region as part of Moroccan territory. As many as 350,000 Moroccan civilians and 50,000 soldiers marched into what was still the Spanish Sahara to take possession of it for the king. Spain ceded the region to both Morocco and Mauritania, denying local claims to an independent Sahrawi Arab Democratic Republic (sadr).21 Thus began a long era of violence and struggle between Morocco and

23144_GB.book Page 57 Monday, February 9, 2009 11:46 AM

Transitional Justice in Morocco

57

Polisario, and this often affected relations with Algeria, which became increasingly supportive of the Sahrawi cause.22 Disappearances of Sahrawis by Moroccan forces started in 1975 and appear to have continued up until the early 1990s, when several hundred prisoners were released. Consistent with repression against other dissidents, Sahrawis of all walks of life were subject to detention, torture, and disappearance simply on the suspicion that they did not support Moroccan domination. This included “elderly people and children, disappeared because of their family links with little known or suspected opponents to Moroccan government policy in Western Sahara.”23 Despite a un-sponsored cease-fire in 1991, the Western Sahara has continued to experience violence and human rights abuses. It also remains a very delicate topic of conversation. The political atmosphere around the Western Sahara crisis has made dealing with crimes there especially problematic. Considered a high security threat, access to the region is strictly controlled, rendering investigations into abuses there difficult. Characteristics of Human Rights Violations Morocco’s “years of the gun” were characterized by a wide variety of abuses. This included thousands of violations that ranged from arbitrary detention and torture to extrajudicial execution and forced disappearances. Of these, the most common abuses included: unwarranted arrests (often by plainclothes police in unmarked cars); prolonged detention in unspecified locations without formal charges, access to a lawyer, or family contact; and torture and illtreatment, including punching, kicking, electrical shocks, burning cigarettes into the body, strangulation, starvation, hanging on poles, and rape. Survivors of torture in these prisons have written autobiographical accounts of being held captive in dark and cramped cells deep within secret detention facilities. Where Abuses Took Place The use of secret detention facilities was widespread in Morocco. Some of these were prisons or forts, some were buildings in the middle of tourist routes or downtown spots, while still others were secluded villas, farms, or private homes. Most were not cited on any

23144_GB.book Page 58 Monday, February 9, 2009 11:46 AM

58

Veerle Opgenhaffen and Mark Freeman

official list of prisons in the Ministry of the Interior’s registry of official detention centres. The most notorious secret prisons included: •

•

•

•

•

•

Tazmamert: A secret prison, near Er-rachidia’s main road, specifically built for those implicated in the coup attempts of 1971–72. A total of fifty-eight officers were sentenced to anywhere from three years to life here. The aim of this prison appears to have been the “slow death of its inmates.”24 Agdz: An ancient fort at the centre of a small town in southern Morocco, used primarily to hold Sahrawis from 1977 to 1983. Qal’at M’gouna: A detention centre in the valley of Wadi Dades, a popular tourist haunt. It was built to hold Sahrawi and Moroccan prisoners who, in many cases, would later be forcibly disappeared. Dar Mokri: The most notorious of eleven private villas in Rabat, where political prisoners were sent after being detained at detention centres. Derb Moula Cherif: A secret detention centre in Casablanca. It was mostly used for political prisoners, secret trials, and torture. Kenitra Central Prison: Along the Atlantic coast, a prison for political prisoners.25

In terms of regional breakdown, the majority of demands for compensation over the past several years have come out of Laayoune in the Western Sahara and the region of Lhamra, followed by Meknes, Casablanca, and Rabat/Salé. While state violence was fairly ubiquitous, these regions appear to represent concentrated clusters of intense repression.

the 1990s: reforms, reappearances, and human rights The Beginning of the End The most widespread and systematic human rights violations seem to have abated towards the late 1980s and early 1990s.26 The decrease was likely due, in part, to the end of the Cold War, which led to an easing up of repression in many countries around the world.27 But there were many other events that contributed to the change.

23144_GB.book Page 59 Monday, February 9, 2009 11:46 AM

Transitional Justice in Morocco

59

For example, in September 1990, the influential book Notre Ami le Roi was published in Paris, revealing explosive details about the secret world of human rights violations in Morocco since the 1950s.28 That same year, Amnesty International published a report detailing abuses in Tazmamart,29 the secret prison whose existence the king had consistently denied.30 In response to these and other developments, the king released approximately 95 percent of the country’s remaining political prisoners between 1991 and 1994. The reappearance of hundreds of political prisoners31 helped to shatter the silence around claims of abuse and provided a rare public glimpse into the world of secret detention centres.32 It also fed the hopes of families still waiting for answers about their loved ones – answers many felt could only be obtained through an open and official investigation. The King’s Human Rights Council: ccdh In 1990, ever sensitive about his image, King Hassan II took the important step of establishing the Human Rights Advisory Council (Conseil Consultatif des Droits de l’Homme [ccdh]). The council was tasked with advising the king on “all matters concerning human rights.”33 In the council’s inaugural speech, King Hassan II hinted at the need for truth and reconciliation.34 Yet in the same speech, the King made it clear that he would not tolerate certain criticisms of the state or his person.35 The establishment of the ccdh represented the first formal step with regard to facing previous and ongoing human rights violations. The council’s first priorities were to recommend institutional reforms, particularly in regard to the Criminal Procedure Code provisions dealing with garde à vue detention periods and the legal number of days that suspects could be held without access to lawyers or family members.36 Other reforms followed, including limiting the terms of all police custody procedures, legislating the right to counsel, and creating a functional bail system.37 Despite these and other notable legislative advances, the ccdh failed to directly address cases of abuse from the “years of the gun.” In 1998, the king asked the ccdh to “examine the so-called pending files in order to clear them once and for all” in the hope of resolving the issue of the disappeared in a definitive manner.38 The ccdh did so but only dealt with a very limited list of prisoners and

23144_GB.book Page 60 Monday, February 9, 2009 11:46 AM

60

Veerle Opgenhaffen and Mark Freeman

missing persons, who were characterized as either “repentants” or “disappeared.”39 As to the number of cases of disappeared persons, the council concluded that there were only 112.40 The cases were divided into three categories: fifty-six people were declared dead; twelve were declared alive and living abroad or in unspecified places in Morocco; and forty-four were declared to have “unknown fates.” These conclusions were sharply criticized by local and international human rights organizations, all of which had documented much higher numbers. Not a single Sahrawi case made it onto the list and no details were given about any of the people “declared dead.” That being said, the council framed its findings as a first step in its investigation and asked the king to allow the formation of a committee “to look closely and examine more deeply the aforementioned cases,” to publish the findings of that committee, and to issue death certificates to families.41 The council also requested the king to consider establishing a reparations committee: [We ask] that all those concerned or their inheritors benefit from the appropriate compensation following your Hassanian tradition that protects and helps the dignity of your subjects. Then a special arbitration committee should be formed dealing with the amounts of compensation for those who deserve them.42 This request would help form the basis for the next significant phase in Morocco’s confrontation of past abuse by the Independent Arbitration Panel, as discussed below. A Human Rights Culture Grows Simultaneous with the burgeoning activity of the ccdh, several other actors began to gel and gain prominence as voices in the national dialogue about human rights. Two important human rights organizations, the Moroccan Association for Human Rights (amdh) and the Moroccan Organization for Human Rights (omdh), were established to focus on domestic issues rather than on external ones like the Palestinian crisis.43 In addition, external organizations like Amnesty International and two Paris-based Moroccan rights groups added voice and vigilance to the struggle for accountability.44 In 1993, a human rights ministry was created and helped reform the Constitution in 1996 to incorporate international human rights

23144_GB.book Page 61 Monday, February 9, 2009 11:46 AM

Transitional Justice in Morocco

61

standards. Also, several steps were taken in the political arena to reflect a more multipartisan approach, folding former “enemies” of the state into representative governance.45 The Independent Arbitration Panel In April 1999, the ccdh made a formal recommendation to the king to establish a body to compensate victims of certain categories of past human rights violations. The king approved this request just two weeks before his death in July of the same year. His son, Mohammed VI, assumed the throne at the end of the month. In his first national speech, the young king began by acknowledging state responsibility for disappearances.46 Seeking to portray a “kinder, gentler monarchy,” he made several swift moves to mark a break with the repressive elements of the past.47 He also appointed the members of the so-called Independent Arbitration Panel to determine different levels of compensation for cases of arbitrary detention and enforced disappearances that occurred between 1956 and 1999. Operating under the auspices of the ccdh, the panel comprised three magistrates from the Supreme Court, four members of the ccdh, one representative of the Ministry of the Interior, and one representative of the Ministry of Justice. Despite the relative significance of this step, the initial tone set by the ccdh suggested a less than victim-centred attitude towards the work at hand. At the panel’s inception, its members apparently asked the king “to shed forgiveness on all those who were fool enough to commit, help, or participate in a crime and threatened the security of the State, and whatever may have resulted in the concerned authorities’ reactions or auxiliaries in order to protect the country.”48 The Panel started its work on 1 September 1999 and established a deadline for applicants of 31 December of that same year. This tight deadline was immediately, but unsuccessfully, criticized. When the deadline arrived, the panel had received a total of 5,127 applications. Several thousand applications arrived after the deadline and were, accordingly, excluded from consideration. The Panel worked for approximately four years. In the end, more than eight thousand people testified at 196 general hearings and nearly four hundred individual hearings. All hearings were conducted in private. In total, the panel rendered 5,488 judgments. Of these, 3,681 were successful, 889 were rejected, and 833 were

23144_GB.book Page 62 Monday, February 9, 2009 11:46 AM

62

Veerle Opgenhaffen and Mark Freeman

unresolved and remitted for future consideration due, among other things, to insufficient evidence.49 The Panel awarded a total of nearly 90 million Euros.50 The lowest award was approximately five hundred Euros and the highest approximately 250,000 Euros. In some respects, this represented a remarkable advance. The operation of the panel was premised on an implicit state acknowledgment of responsibility – not an insignificant thing for a constitutional monarchy situated in the Arab world. In addition, substantial and much-needed compensation was provided to a significant number of victims and families. At the same time, there were many legitimate criticisms. First, many criticized the divergences in individual awards and the related lack of explanation about the methodology applied by the panel. What is known is that a key factor in assessing individual awards was a person’s income at the time the violation began (and, as the case may be, the duration and/or final result of the violation).51 This criterion made it inevitable that victims who were high-income earners received much larger awards of compensation than did those who were not, even when the actual violations were, in factual and moral terms, equivalent. A second criticism of the panel focused on the exclusion from its mandate of other important categories of human rights violations, such as extra-judicial executions.52 Yet another criticism related to the narrow understanding of reparations used by the panel, which was almost exclusively conceived in monetary terms. Victims, families, and their advocates had urged a reparations package that would also include the issuance of death certificates, the return of bodily remains for proper burial, mental and physical health assistance, and an official acknowledgment from the government.53 Another criticism of the panel concerned the application deadline, which resulted in over six thousand applications being excluded from consideration, purely on the basis of their date of submission. A final criticism concerned the panel’s lack of transparency and lack of investigation. None of its work was conducted in the public spotlight and no investigation was made or reported on individual or institutional responsibilities for past violations. Despite these legitimate critiques, Morocco’s Independent Arbitration Panel constituted an important regional precedent in the area of reparation for state-sponsored human rights violations. Just as important, its successes and shortcomings paved the way for the next stage in Morocco’s confrontation of its legacy of abuse.

23144_GB.book Page 63 Monday, February 9, 2009 11:46 AM

Transitional Justice in Morocco

63

The Moroccan Forum for Truth and Justice: “No to forgetting, yes to truth!”54 As soon as the Arbitration Panel started its work in 1999, a group of former political prisoners and human rights activists joined forces to make their concerns and demands heard. At a conference in Casablanca in October 1999, they established a new ngo called the Moroccan Forum for Truth and Justice (Forum Vérité et Justice [fvj]). A thirteen-member executive committee was formed with former political prisoner Driss Benzekri at the helm. During the brief duration of the panel’s mandate, the fvj campaigned relentlessly for an independent truth commission and a broader working definition of reparations. By June 2000, the fvj had drafted a standard form for all victims and families to use to document details of repression and had also organized several commemoration activities.55 In addition, together with other local ngos like the amdh and the omdh, the fvj organized truth caravans (caravanes de vérité) to former detention centres, where they conducted and recorded testimonial sessions akin to truth commission public hearings. In short, this vigilant and well-organized voice of civil society made it difficult to claim that the Arbitration Panel had managed the enormous task of “turning the page once and for all.”

t owa r d s a t r u t h c o m m i s s i o n The King Listens In April 2001, the king made some fundamental changes to the structure of the ccdh in response to growing criticism of its narrow mandate and composition. Crucially, he aimed at reducing the body’s dependence on government ministries. By royal decree, the king decreased the number of seats reserved for political parties and unions, making way for greater participation by non-governmental associations.56 He also changed the voting structure to enhance the efficacy of its decision-making powers and appointed Driss Benzekri (founding member of omdh and president of the fvj) as its secretary general. In November 2001, several human rights organizations organized a symposium in Rabat to discuss the feasibility of creating a truth commission for Morocco. At the symposium, the omdh, amdh,

23144_GB.book Page 64 Monday, February 9, 2009 11:46 AM

64

Veerle Opgenhaffen and Mark Freeman

and the fvj elaborated a formal proposal to the king to create what would later become, in a modified form, the ier.57 The newly configured ccdh was openly receptive to the symposium’s recommendations. In late 2003, it completed a formal submission to the king, which emphasized the need to “deepen the democratic transition” and “turn the page of the past once and for all” through the establishment of a truth commission. His majesty approved the recommendation on 6 November 2003 and ceremoniously inaugurated the commission on 7 January 2004 in Agadir. On that occasion, the king delivered a speech that made extensive reference to the ier as being a mechanism “adopted to uncover the truth” and calling it a “truth and fairness body.”58 This was an important emphasis given that the commission did not have the word “truth” in its title.59 Finally, on 10 April 2004 a legal text defining the functions and parameters of the commission’s work was issued as a formal dahir, thus expressing the king’s full support for the endeavour.60

t h e ier i s b o r n : a f r a m e w o r k f o r a c t i o n Composition The ier is composed of a president and sixteen members, each of whom was chosen and appointed by the king upon the recommendation of the ccdh. Nine are members of the ccdh, including the president. Several of the commissioners are former political prisoners and torture survivors, including the president.61 The ier has only one female commissioner, although the ier staff was comprised of many women in key positions. At the height of its activities, the ier employed close to 200 staff working in various capacities. Mandate: Truth, Reparations, and Prevention The period of January to April 2004 was the ier’s preparatory phase when, among other things, the ier focused on drafting its mandate. The mandate, which would later be adopted by royal decree, was based on the original ccdh recommendation as well as on studies of other truth commission mandates and experiences. Although no specific time frame for the ier’s operation was enshrined in the mandate, the commission aimed to take one year to complete its work (12 April 2004 – 12 April 2005).62 Consistent with the

23144_GB.book Page 65 Monday, February 9, 2009 11:46 AM

Transitional Justice in Morocco

65

original ccdh recommendation, the ier’s mandate tasked it with investigating violations committed during the period, starting with independence in 1956 and ending with the date of the inception of the Arbitration Panel in 1999.63 In the government’s words: The creation of the Equity and Reconciliation Commission seeks to close definitively the file of human rights abuses committed in the past. It is tasked with making just reparations to achieve the rehabilitation of victims, and their social reintegration, while conducting investigations to clarify cases of disappearance. The commission is working to seek the truth on enforced disappearances, arbitrary detentions, and the pursuit of a judicial treatment of human rights violations. It must respond to the demands of families, emphasizing the need to repair the harm suffered, which should not be limited to paying compensation but should also include rehabilitation, both in an individual and collective sense, of the victims. In the case of persons who are determined to have died, the commission will seek to find where the bodies are buried and to establish the responsibilities of different state bodies.64 The commission’s mandate comprises twenty-seven articles organized into six distinct parts: general provisions, powers, operational structure, administration and financial issues, communication and information, and final provisions. The commission’s primary objectives are specified in article 9. These are, in broad terms, to establish the truth about past violations, to provide reparation to victims and families, and to recommend measures aimed to prevent future abuses. These objectives are partly intended to redress criticisms that had been made against the Arbitration Panel. For example, rather than adopting a narrow view of reparations, article 9 of the ier’s mandate recognizes reparations as comprising “the medical and psychological re-adaptation, social integration, the settlement of administrative, legal, and professional problems, and the restitution of property.”65 Article 17 of the mandate also confers to the ier the power to deal with unresolved or untreated cases of the former panel.66 Concerning the objectives of truth and prevention, the mandate requires the commission to situate past violations in their historical contexts and contrast them against the values of human rights and democracy.67 While its mandate prohibits naming specific individuals, the ier is required to determine “the

23144_GB.book Page 66 Monday, February 9, 2009 11:46 AM

66

Veerle Opgenhaffen and Mark Freeman

responsibilities of the state organisms or any other party.”68 The ier is also charged with clarifying specific incidents through the gathering of forensic and factual evidence about particular cases that remain unresolved. In addition, the commission is mandated to elaborate “proposals of measures to preserve memory and guarantee the non-repetition of the violations.”69 Subject Matter Jurisdiction Article 5 of the ier’s mandate charges the commission with the task of identifying and analyzing “grave human rights violations … [that were] widespread and systematic.” The violations under investigation are, however, limited to the same two on which the Arbitration Panel focused – namely, enforced disappearances and cases of arbitrary detention. Nevertheless, the ier has stated that the interpretation of its mandate would be as broad as possible. Moreover, the mandate defines both enforced disappearance and arbitrary detention as complex violations that involve multiple levels of transgression against the rights to life, liberty, and legal protection. As the commission is given the freedom to establish what constitutes “the nature and amplitude of the violations,” there is discretion to include other serious violations.70 Personal Jurisdiction The ier’s work is meant to focus on violations committed by state agents or people acting on behalf of the state in various capacities. The mandate explicitly defines the crimes of enforced disappearance and arbitrary detention as systematic manifestations of the government’s brutality against its people rather than as incidents of “individual excess.”71 This is a useful starting point for identifying chains of command, broad patterns of abuse, and the possible complicity of judicial or other branches not implicated as direct agents. Territorial Jurisdiction The ier is mandated to investigate violations committed anywhere on the territory of Morocco, including the contested area of the Western Sahara. Territorial jurisdiction can also extend to work outside the country, which is important given how many people were forced

23144_GB.book Page 67 Monday, February 9, 2009 11:46 AM

Transitional Justice in Morocco

67

into exile. Expatriates living in Holland and France, among others, have been encouraged to submit information to the ier. Investigative Powers The ier lacks powers of investigation such as a subpoena power or a power of search and seizure. However, public officials are under strict obligation to cooperate with all attempts to gather information since the ier’s mandate comes directly from the king by way of a royal decree. The Commission’s Working Groups The ier is organized into three main working groups, each representing a pillar of the mandate.72 These groups are required to report periodically to the plenary, where all major policy decisions are taken. The groups are organized as follows: The Reparations Working Group is tasked with “completing the work of the previous arbitration board on reparations for moral and material damages suffered by victims of enforced disappearances and arbitrary detentions and their heirs, on the basis of the same arbitral procedures and principles of justice and equity. It must also ensure reparations for other kinds of damages suffered by the victims of forced disappearance and arbitrary detentions.”73 The Investigations Working Group is tasked with “conducting investigations on cases of enforced disappearance that haven’t yet been clarified and gathering all information and declarations about past serious violations.”74 The Research Working Group is tasked with “undertaking the necessary research and studies to fulfill the mission of the ier and to gather and analyze the information, data, and conclusions of the different working groups in the perspective of the writing of the final report.”75 The ier later established two ad hoc committees, both of which were composed of members of the three working groups: The Public Hearings Committee was formed in July 2004, once ier members had made a formal decision to hold public hearings. The committee was responsible for devising general operating principles and procedures for public hearings, arranging logistics, and working with the media.

23144_GB.book Page 68 Monday, February 9, 2009 11:46 AM

68

Veerle Opgenhaffen and Mark Freeman

The Final Report Committee was formed in September 2004 to anticipate preparatory work on the final report to be presented to the king and possibly made public. According to the ier’s mandate, the report should be a comprehensive official publication of the commission’s findings, along with recommendations for future activities.

t h e ier at w o r k Resolving Cases and Creating an Archive On 12 January 2004, prior to the promulgation of the ier’s mandate, the commission announced it would be accepting applications for compensation from victims for a period of one month. By 12 February, the office in Rabat had received over thirteen thousand submissions, which it added to the thousands of unexamined dossiers of the Arbitration Panel. The one-month deadline was not enforced for cases of disappearances that remained unresolved. One of the ier’s first tasks was to review and organize these approximately twenty thousand cases. The reparations working group hired over one hundred temporary staff and graduate students to assist in the process. It designed a sophisticated system to capture and analyze the information contained in the case files and also provided immediate medical treatment to those in urgent need. In the spring of 2005, the reparations working group presented a comprehensive analysis and proposal to the ier plenary, including individual, collective, material, and symbolic forms of reparation. The ier plans to consult widely with Moroccan society at large before finalizing this plan, which will then be included in its final report to the king. In the area of investigation, members of the ier met with thousands of families of victims to take their statements. It also conducted in-depth investigations into many complex or unresolved cases. In so doing, members of the investigations working group travelled at regular intervals, covering over thirty different districts throughout the country to conduct interviews.76 The information it obtained was forwarded to the other ier working groups and will be directly integrated into the findings section of the final report. The ier’s research working group complemented the investigations working group by examining the broader set of factors that contributed to violations. The group sometimes pursued its mission in a public and interactive manner by holding public fora around

23144_GB.book Page 69 Monday, February 9, 2009 11:46 AM

Transitional Justice in Morocco

69

the country, including ones on prison literature, state violence, and concepts of truth and reconciliation. These fora were meant to enhance “an active thinking mode, to set up projects and action plans with a view to reinforce the rule of law and guarantee the nonrecurrence of such violations.”77 Public Hearings The commission’s most visible work was the public hearings it organized for victims. The ier’s mandate omits mention of such hearings, but the commissioners interpreted the mandate’s charge to “develop and promote a culture of dialogue” as a justification to hold public hearings.78 Commission members sought to craft the most appropriate and functional format for public hearings, based on both the Moroccan context and previous experiences globally. On its website, the ier affirms an intention to help “rehabilitate the victims by giving them voice and letting them share their suffering with the nation.” Commissioners envisioned the hearings as education and sensitization tools that could give dignity back to victims and contribute to a national vigilance against future abuse.79 The ier held a total of seven sessions, mostly in regions known for relatively high volumes of repression during the relevant time period. The first two were held in Rabat, and these were followed by hearings in Figuig, Rachidia, Khenifra, Marrakech, and El Hoceima. A final session, planned for Laayoun in the Western Sahara, was postponed due to “security issues.”80 All hearings were held in public auditoriums and meeting halls. They were widely attended, in some cases by the king’s senior advisers, government ministers, opposition party leaders, diplomats, international press, and representatives from the country’s major human rights ngos. Hearings were initially broadcast live on Moroccan television and radio, with extracts beamed throughout the Middle East by Al-Jazeera.81 Typically, the format was to have testifying victims sitting on stage directly facing the audience, flanked in silent solidarity by about thirty other victims and ier commissioners. Each witness was given around twenty minutes to speak. By design, no commissioners asked questions of the witnesses during or after their testimonies. Anyone called to testify was asked to refrain from invoking the name of individuals alleged to be responsible for the violations in question.82 This issue provoked significant controversy and criticism.83

23144_GB.book Page 70 Monday, February 9, 2009 11:46 AM

70

Veerle Opgenhaffen and Mark Freeman

The public hearings generally operated in a solemn and victimcentred fashion, and included prior and follow-up emotional and psychological support for those who testified. A wide variety of regions, violation types, and historical periods were represented in order to create as representative a picture as possible of the different episodes of mass abuse. Individuals were, in fact, selected to testify on the basis of specific criteria: gender balance, regional representation (based on historical events, type of violations, and location of detention centres), clarity and significance of the specific story, psychological strength of the particular victim, and diversity of stories (in order to avoid repetition).84 Such criteria were essential, since less than 1 percent of the total pool of identified victims would have the opportunity to publicly testify before the ier. The hearings were widely viewed within Morocco and the broader region, and received far more media attention than did other aspects of the commission’s work. Despite a few disruptive incidents,85 the hearings appear to have been well received in their own locales and to have provoked an outpouring of emotion and public debate.86 Other ier Activities Throughout its operation, the ier conducted a variety of additional activities. For example, it organized meetings between victims and prominent representatives of governments, ngos, and issue groups, ranging from the International Rehabilitation Council for Torture Victims87 to foreign officials and ngos looking to create their own truth-seeking mechanisms.88 The commission also conducted a modest publicity and outreach campaign, and co-organized two workshops on transitional justice for human rights activists from across the region. On gender, the ier worked with both national and international ngos to ensure attention to women’s issues and perspectives in all of its work. Work around this subject informed the research strategy, public hearings, reparation policy, and final report of the ier.

c r i t i c i s m s , h o p e s , a n d r e c o m m e n dat i o n s Key Criticisms The ier has been the subject of public criticisms on a number of fronts. Until it held its first public hearings, criticisms focused on the

23144_GB.book Page 71 Monday, February 9, 2009 11:46 AM

Transitional Justice in Morocco

71

lack of interaction and rapport it had with the broad public. There were also concerns about politicians’ lack of engagement in the truth commission process. Members of government and Parliament will, of course, play a key role in the implementation of the ier’s ultimate recommendations, and therefore their engagement is essential. Lack of decentralization was another noted problem with the ier. Throughout its operation the commission only had one permanent office, located in Rabat.89 The commission’s inability to compel testimony from those who might be responsible for, or have information about, past abuses was another source of concern. Although the ier’s mandate requires all parties to cooperate with the commission, there is little leverage to elicit information and evidence from implicated parties.90 The lack of “daylight” between the ccdh and the ier was yet another subject of criticism. The fact that the ier president and half of the other commissioners retained their positions with the ccdh during the ier’s period of operation limited the commission’s appearance of independence. Probably the greatest weakness of the ier, however, was its relationship with the country’s main human rights ngos. Shortly after the king’s appointment of the commission members, in a public interview ier president Driss Benzekri made remarks that leading ngos found deeply offensive. This set off a negative dynamic that tainted future relations with the ier. Leading Moroccan ngos did, nevertheless, establish a truth commission monitoring committee. They also prepared a detailed “shadow” report containing recommendations on political and legal reforms that they deemed necessary in order to consolidate democracy, human rights, and the rule of law in Morocco. Other concerns about the ier relate to the broader political context of its creation. The general issue of impunity remains a point of contention. The Moroccan government appears to be backsliding in the area of civil liberties and human rights since 9/11 and the 2003 Casablanca bombings.91 Although the government has taken steps to criminalize torture under domestic law, there are fresh reports of forced confessions, torture, and violations of garde à vue laws being committed in the country’s own “war on terrorism.”92 In addition, concerns about freedom of the press have followed a crackdown on several journalists, like Ali Mrabet, who was forced to serve jail time and is forbidden to write for the next twelve years.93 In addition, the Western Sahara remains an area marred by violence and a

23144_GB.book Page 72 Monday, February 9, 2009 11:46 AM

72

Veerle Opgenhaffen and Mark Freeman

virtual media blackout. Recent reports indicate significant abuses against civilians and suspected rebels – both by the Moroccan military and by the Polisario.94 Positive Signs Despite the above concerns and criticisms, the fact is that the ier represents the most comprehensive investigation to date of the “Hassanian” era of violations in Morocco. In its work, the commission has managed to quietly compile a massive archive of information on victims, violations, and even perpetrators. Its files are well organized according to date, region, crime, and torturers’ names, supplying not only a rich historical account but also substantial material evidence for future criminal or disciplinary proceedings. In addition, the commission has endeavoured to create a broad definition of possible remedies for the victims, which range from monetary awards to economic, social, and institutional remedies.95 The commission’s use of high-quality researchers, interviewers, investigators, archivists, psychiatrists, and medical staff is a promising sign for the quality of the final report that is yet to come. The Road Ahead The Moroccan experience in the area of truth and reparation is best viewed as part of a long and gradual process of reckoning with a violent and, until recently, hidden past. Building on the experiences of the ccdh and the Arbitration Panel, the ier is only the latest chapter in this process. As we have noted, however, Morocco still has a long road to travel in building the “culture of human rights” or “national reconciliation” that the king proclaims as national objectives.96 At the same time, Morocco deserves significant credit for taking bold, if controversial, actions towards dealing with its legacy of mass abuse. One of the most important legacies of the ier process could be its impact in the region. The precedent set by the ier could have a positive ripple effect across the Arab world. Civil society groups and government officials in Algeria, Lebanon, Bahrain, and other states have been watching the Moroccan experience closely, while considering options for dealing with their own troubled legacies. The general international reception and publicity around the ier will thus stand to bear heavily on similar movements just beginning to take shape.

23144_GB.book Page 73 Monday, February 9, 2009 11:46 AM

Transitional Justice in Morocco

73

At a domestic level, one conceivable scenario is for the commission’s work to lead to a greater openness and willingness to face the past, ideally matched by renewed efforts to address both past and ongoing abuses through trials and institutional reforms. In this context, the final months of the commission’s work are crucial. ier president Driss Benzekri has expressed the hope that Morocco is entering into a “new paradigm … that involves political debate centering on political and constitutional reforms.”97 Whether this hope can be realized, however, will greatly depend on the follow-up efforts of both Moroccan civil society and the international community in the aftermath of the commission’s work. What is certain is that the story of Morocco’s confrontation of its legacy of mass abuse has not yet reached its final chapter.

epilogue, august 2008 It is not only a matter of sharing knowledge and re-appropriating the past, but also a matter of making common standards and rules of living emerge into the present and into the contradictory debate, in addition to building a future together. Driss Benzekri98

Although the ier officially concluded its two-year mandate and was formally dissolved on 30 November 2005, it is still too early to draw definitive conclusions regarding the long-term impact of its work. Some of the most challenging work associated with any truth-seeking experience, in fact, comes long after the mandate itself has expired and the final report has been filed. The extent to which recommendations are adopted by public authorities and institutions – thus translating them from mere suggestions into durable reforms – is a critical metric for assessing the commission’s legacy. But that is a process that takes many years. Nonetheless, a preliminary discussion of some of the ier’s achievements – along with its shortcomings and remaining challenges – is possible at this stage. This brief epilogue shares some key observations on the ier – based mainly on the recommendations and follow-up to the final report – to take stock of where the ier’s work stands today. Shortly after the ier formally presented its final report to King Mohammed VI on 6 January 2006, the king publicly released it (in Arabic).99 The king made a formal commitment to implementing its recommendations and designated the ccdh as the official body in

23144_GB.book Page 74 Monday, February 9, 2009 11:46 AM

74

Veerle Opgenhaffen and Mark Freeman

charge of follow-up, monitoring, and coordination of all of the report’s recommendations. Among other things, the final report was able to sketch a relatively comprehensive portrait of the types of violations and abuses committed and to resolve the fates of many of the victims, both individually and by region and type. It noted the general responsibility of state actors and some additional parties for abuses committed during the “years of the gun” and made clear that the crimes committed by these actors included disappearances, arbitrary detention, torture, and excessive use of lethal force. The final report also published details about every case the commission was able to resolve with regard to the manner in which the victim(s) had been violated, including details on those who had been killed by firing squads, those who had died in custody/detention, and those who had been killed during riots. It was, however, unable to resolve all of the cases it faced, and it drew criticism for its failure to resolve three of Morocco’s most famous dissident disappearances cases: those of Al-mehdi ben Barka, Omar Benjelloun, and El-Hussein Almanouzi, all of whom disappeared under suspicious circumstances that were widely alleged to have involved help from French and American agents.100 The ier was also unable to adequately investigate or resolve most cases originating out of the widely contested Western Sahara region, where a high percentage of original applications had originated. This drew some criticism from human rights groups and others who felt that political sensitivities, rather than security risks, kept the ier investigators out of the region entirely. One of the most impressive results of the ier’s work and final report came in the form of its extensive plans for individual and communal reparations, based on its investigations of some 17,032 applications. According to the ccdh, the ier’s provisions for reparations have been particularly effective in scope and implementation, indicating that declarations of intent are being backed up by a real commitment on the part of the government. By mid-2007, some us$85 million had been distributed to 15,976 individuals (seven individuals apparently accepted symbolic reparations in lieu of financial compensation). In accordance with the final report’s recommendations, the ccdh has also signed an agreement with the ministries of finance and health and the National Social Security Fund to provide medical care to the victims and their families (approximately forty thousand people) at the state’s expense. In addition, it has set up “social reintegration” programs for nearly 1,400 individuals needing

23144_GB.book Page 75 Monday, February 9, 2009 11:46 AM

Transitional Justice in Morocco

75

vocational training or other administrative assistance aimed at restoring their capacity to be fully functioning members of society after having suffered such grave violations. One of the most important innovations of the ier was to ensure that individual compensation payments would be made accessible to the victims in a way that matched the needs of largely rural populations. Specifically, the ccdh arranged for people to be able to receive and cash their compensation awards through their local post offices. With regard to communal reparations, eleven of the regions surveyed by the ier that were found to have suffered disproportionately from repression and marginalization and/or were places where secret detention centres were known to have been located were singled out for special reparations packages, including development funds and the memorialization of some former sites.101 The government also took care to establish an institutional mechanism to manage the implementation of communal reparation programs and to keep both national and local players involved in the process.102 In addition, the ccdh has moved forward with consultations on the reconversion of many former detention centres into sustainable sites for memorialization and community economic development. The final report recommended that Morocco’s prime minister issue a public apology for past abuses in order to acknowledge state responsibility for them, and it outlined concrete steps that both the Moroccan government and civil society could take to ensure the promise of “never again,” including recommendations for measures and reforms aimed at strengthening the rule of law and increasing judicial oversight of the security services. The recommended apology has yet to be made, but there are many who criticized the recommendation itself, arguing that the apology should come from the king himself. Besides the concrete recommendations and actions that have already been acted upon, some of the ier’s work offers other possibilities for future actions in the realm of transitional justice. The results of the ier’s investigations, for example, are stored in an extensive and impressively organized database that contains myriad specifics about alleged perpetrators of the violations. Since one of the primary critiques of Moroccan human rights defenders is the lack of prosecutions for past violations, the extent of this archive holds some potential for future prosecutions and vetting efforts.

23144_GB.book Page 76 Monday, February 9, 2009 11:46 AM

76

Veerle Opgenhaffen and Mark Freeman

It is noteworthy that Morocco’s truth-seeking experience appears to have had some impact on attitudes towards transitional justice in the broader region, with ngos and sometimes government representatives from Algeria, Mauritania, and Bahrain, among others, being in close communication with ccdh members and other Moroccans regarding options for transitional justice in their own countries. Within Morocco itself, some have said that the experience generated a sense of pride and empowerment, while also affirming a commitment to human rights standards in a country in which those rights had been routinely violated for decades. This attention to the rights of the general population is likely to be one of the longer term impacts – albeit one of the hardest to chart – of the ier. At the same time, Morocco still faces deserved criticism about its handling of the “war on terror,” which many see as a return to the same old politically oppressive tactics under a new rationale. Though it remains too early to tell what impact, if any, judicial and police reforms will have in this regard, it will be important to monitor developments in legislation and security practices in Morocco. With these opportunities and concerns in mind, the ccdh will need to maintain dialogue with the general public about its ongoing work in monitoring and following up on the ier’s recommendations. Like the ier itself, the ccdh has faced criticism for its lack of effective communication with the press as well as for some difficult interactions with the rest of Morocco’s ngo and civil society community. Finally, it is worth mentioning the very sad passing of Driss Benzikri in May 2007. Beyond his tireless work as a human rights defender and subsequently as ier president, he was also the key figure during the months following the submission of the ier’s final report, when he was appointed as the new ccdh president. Unfortunately, the long illness that preceded his death resulted in some lost momentum with regard to the implementation of the ier’s recommendations, but things are again back on track. This temporary loss of momentum before and after his death is more a testament to his overwhelming energy and commitment than it is to a lack of effort on the part of his colleagues. Nonetheless, it had a discernible impact. Fortunately, many international and national actors, including the ccdh, are dedicated to consolidating the positive legacy of Benzikri and many others in relation to the cause of democracy and human rights in Morocco. Although it will take many years to fully evaluate the impact of the ier on Moroccan society, there is no doubt that it marked one of the most

23144_GB.book Page 77 Monday, February 9, 2009 11:46 AM

Transitional Justice in Morocco

77

profound attempts by the country to reckon with the ghosts of its recent past and to set it on a new and better political and social path.

notes

1

2

3

4

5

6 7 8 9

This chapter was written in September 2005 and draws from a report of the International Center for Transitional Justice published by the authors in October 2005. The epilogue to this chapter was added in August 2008. Veerle Opgenhaffen is program director at the International Center for Human Rights and Global Justice at nyu School of Law. Mark Freeman is director of international affairs at the International Center for Transitional Justice. The authors wish to acknowledge preliminary research and writing done by Federico Borello and editorial comments provided by Hanny Megally. The authors also wish to recognize the support of the International Center for Transitional Justice. One of the first to testify at the public hearings in Rabat, December 2004. His father was “disappeared” in 1958 after leading an anti-government revolt. See “Morocco Confronts Past Rights Abuses,” Al-Jazeera.net, at , viewed 22 December 2004. Patricia J. Campbell, “Morocco in Transition: Overcoming the Democratic and Human Rights Legacy of King Hassan II,” African Studies Quarterly 7 1 (2003), available at , September 2005. Ibid., “Morocco in Transition,” 51. The author dubs this style of rule “Hassanian democracy” because it had all the signs of being a functional and robust democracy but was really an autocratic and medieval system of highly concentrated power. This is not to imply homogeneity throughout the Middle East and North Africa but, rather, to suggest the domino effect that these initiatives sometimes have. Campbell, “Morocco in Transition,” 38. Other traditions, such as that of Morocco’s once-large Jewish community, are also present but much less apparent. Campbell, “Morocco in Transition,” 39. Technically, the “years of the gun” started in 1969, but the entire era of abuses can be understood as having its roots in the first days of postcolonialism. See Pierre Vermeren, Histoire du Maroc Depuis L’indépendance (Paris: La Découverte, 2002).

23144_GB.book Page 78 Monday, February 9, 2009 11:46 AM

78

Veerle Opgenhaffen and Mark Freeman

10 These were the Istiqlal Party (conservative nationalist) and the Union National des Forces Populaire (a leftist off-shoot of Istiqlal). See Abdeslam M. Maghraoui, “Democratization in the Arab World: Depoliticization in Morocco” Journal of Democracy, 13, 4 (2002). 11 Makhzen is a term used to describe the complex “political and administrative structure that forms the basis for power in Morocco, which includes submission, rituals, and traditional ceremonies.” See Ignacio Ramonet, “Morocco: The Point of Change,” Le Monde Diplomatique, July 2000, http://mondediplo.com/2000/07/01ramonet, viewed September 2008. 12 The region was marred by ongoing repression for decades at any sign of rebellion. Mass demonstrations and riots continued to occur well into the 1980s in protest of ongoing abuses. 13 It has been said that Hassan II “used modern institutions to preserve medieval political authority.” See Abdeslam Maghraoui, “Political Authority in Crisis,” Middle East Report 218 (Spring 2001): 12. 14 Campbell, “Morocco in Transition,” 39. 15 “By 1973 all the constituent elements for widespread abuse were in place: the criminalization of political opinion, arrest without warrant, detention without reason, unlimited extensions of time spent in garde a vue or preventative detention, the creation of secret prisons, and the institutionalization of torture.” Susan Slyomovics, The Performance of Human Rights in Morocco (University of Pennsylvania Press: Philadelphia, 2005), 21. 16 For a detailed background on this case see: Bernard Violet, L’Affaire Ben Barka (Paris: Fayard Press, 1991). 17 The mass trial of the so-called “Group of 71” is an oft-cited example of a sham trial. See “Hidou Abdallah Calls for Reassuring Moroccans That Human Rights Violations Will Not Occur Again,” Arabic News On-line, December 12, 2004, available from , viewed 9 September 2008. 18 The most notorious case concerned the wife and six children of 1971 coup leader Colonel Oufkir, who was said to have committed suicide just after the failed coup. His family spent eighteen years in a secret prison. One of his daughters, Fatima Oufkir, has since written a book about the ordeal. See Fatima Oufkir, Dans les Jardins du Roi (Lafon Press: Paris, 2000). 19 According to Amnesty International, more than nine hundred people were disappeared in Morocco between the mid-1960s and early 1990s, a vast majority of them from the Western Sahara. The last known large wave of Sahrawi disappearances took place in 1987. The area continues to be plagued by allegations of torture and abuse.

23144_GB.book Page 79 Monday, February 9, 2009 11:46 AM

Transitional Justice in Morocco

79

20 Battles between the Sahrawis and Spanish troops started just after the Berlin Conference of 1884. The phosphate discovery of the 1950s made the region one of the richest high-grade deposits in the world and greatly increased its value as a colony. For a useful historical timeline see , viewed 9 September 2008. 21 Ibid. Mauritania signed a peace treaty with the Polisario front in 1979 and withdrew from the territory. Morocco then annexed the entire region of what is now called the Western Sahara. The Polisario front fought back, proclaiming an independent Sahrawi Arab Democratic Republic (sadr). 22 Ibid. 23 Amnesty International, “Turning the Page: Achievements and Obstacles” (London: Amnesty International, 1999). 24 “The Disappeared in Morocco,” in Amnesty International Reports (London: Amnesty International, 1993). 25 Ibid., According to Amnesty International’s interviews with survivors, numerous other centres exist(ed) in extremely remote areas of Er-rachidia, Ourzazate, and Agadir, among others. For example, Oued Ounil in Ourzazate was accessible only by helicopter. 26 This is not to suggest that they stopped completely or that they haven’t become a problem again. In fact, much has been written in the past few years about a renewed era of abuses since 9/11 and the Casablanca bombings of 16 May 2003. See, for example,, “Morocco: Human Rights at the Crossroads,” Human Rights Watch Reports, 21 October 2004, available at , viewed 9 September 2008. 27 See Campbell, “Morocco in Transition”; or Vermeren, Histoire du Maroc Depuis L’indépendance. 28 The book is banned in Morocco. See Gilles Perault, Notre Ami le Roi (Paris: Folio Actuel, 1990). 29 The 1990 report was entitled “Morocco: ‘Disappearances’ of People of Western Saharan Origin” (Amnesty International Reports, 1990, ai Index mde 29/17/90). This was followed by: “Morocco: A Pattern of Political Imprisonment, ‘Disappearances,’ and Torture” (Amnesty International Reports, 1991, ai Index: mde 29/01/91). “These prisons are not on any list held in the prison administration division of the Ministry of Interior” (the Moroccan government’s response to the un Human Rights Committee’s questions on the whereabouts of Tazmamart, 1991). See Amnesty International, “The ‘Disappeared’ in Morocco,” Amnesty International, April 1993, available at , viewed 9 September 2008.

23144_GB.book Page 80 Monday, February 9, 2009 11:46 AM

80

Veerle Opgenhaffen and Mark Freeman

30 In response to Amnesty International’s allegations, Hassan II stated publicly that “if 1% of the human rights violations suggested by Amnesty were true” he “wouldn’t get a wink of sleep.” See “Human Rights at the Crossroads: The Structural and Political Limitations Within which the ier Operates,” Human Rights Watch, 16.6(E). 31 This was not the first time prisoners reappeared, as 1976 and 1983 had witnessed two organized releases of student prisoners. However, this was the largest group of releases, comprising approximately three hundred Sahrawis and thirty Moroccans. 32 It is worth noting, however, that freedom came at a cost for most of the reappeared. They faced constant harassment, questioning, and restricted freedom of movement because the security apparatus feared they would reveal too much truth. See Slyomovics, The Performance of Human Rights in Morocco. 33 Dahir No. 1.90.12, issued April 1990, art. 1. 34 “I urgently ask you, members of this council, and appeal to your integrity and sense of civic responsibility for help to bring fairness where a wrong has been done and for help so that we can together succeed in raising this country to the level of civilized countries and states of the rule of law. I finally ask you to judge in all serenity whether, in such or such a case, human rights have been violated. In the affirmative, you will cry out the truth. In the negative, you will not hesitate to state that human rights have not been violated, that there was a lie, false testimony, or fabrication.” Speech of King Hassan II, 8 May 1990. See Human Rights Advisory Council, ccdh: Ten Years in the Service of Human Rights (Rabat: Al Maarif Al Jadida, 2000). 35 “All Moroccans are tired of hearing that there are people imprisoned for political reasons in Morocco … should we some day read that a Moroccan has stated that such and such a region is not part of Moroccan territory, I should consider this a heresy and he could not be tried within the framework of the law, so that neither the status of a detainee nor a political prisoner could apply to this case.” Ibid. 36 Much abuse stemmed from these garde à vue laws, which put Moroccan police in the position of serving both as “investigator and judge presuming the crime while imagining the eventuality of criminal charges.” Suspects could be legally detained for a maximum of four days before being charged. This was changed to six days in 1962, but for those accused of being “threats to the state” this could be doubled to twelve days. There was also an obligation to inform families right away, but this was rarely implemented in practice. See “The Disappeared in Morocco” (London:

23144_GB.book Page 81 Monday, February 9, 2009 11:46 AM

Transitional Justice in Morocco

37 38 39

40

41 42 43

44

45

46 47

48 49 50

81

Amnesty International, April 1993), available from , viewed September 2005. Human Rights Advisory Council, ccdh, 59–61. Ibid., 113–28. Ibid., 114. “Your faithful servants … request from your majesty (that you consider) forgiving those who repent and regret and giving them a chance to prove themselves in the future, that You grant pardon to the following prisoners.” “Turning the Page: Achievements and Obstacles,” Amnesty International, 4 August 1999, available at , viewed September 2005. ccdh report, 119–20. Ibid., 122–3. The amdh and omdh were founded in 1979 and 1988, respectively, but did not gain momentum or national attention until the early 1990s. See Campbell, “Morocco in Transition,” 45. The Paris groups were the Committee for the Struggle against the Repression and the Association for the Defense of Human Rights in Morocco. See , viewed September 2005. For example, the appointment of the left-leaning human rights defender Youssufi as prime minister in 1997 and the state-sanctioned campaign called the Mouvement de Contestation. See Campbell, “Morocco in Transition.” Text of speech available at , viewed September 2005. For example, he fired Driss Basri, former minister of the interior, whose name had become synonymous with repression and corruption over the many decades he had worked for King Hassan II. Basri’s firing seems to have followed Mehammed El Battiui’s filing a case against him for “crimes against humanity: in Brussels (under the brief universal jurisdiction law there). In fact, many of these shifts seem to have been partially inspired by what has been dubbed “the Pinochet effect” after extensive coverage in the Moroccan press of the former dictator’s possible extradition to Spain. See Susan Slyomovics, “A Truth Commission for Morocco,” Middle East Report 218 (Spring 2001): 18–21. See also Maghraouni, “Political Authority in Crisis.” See Human Rights Advisory Council, ccdh. See ccdh website, , viewed September 2005. See “Morocco: Human Rights at the Crossroads.”

23144_GB.book Page 82 Monday, February 9, 2009 11:46 AM

82

Veerle Opgenhaffen and Mark Freeman

51 Details of the panel’s methodology were explained by former panel member Abdelaziz Benzakour at a conference organized by local and international ngos in March 2004. Copy of speech on file with the ictj. 52 “Morocco: Human Rights at the Crossroads.” The panel did, however, take a liberal interpretation of forced disappearance by considering it to include cases of persons forcibly exiled from Morocco. 53 The importance of these death certificates cannot be understated, in both psychological and economic terms. Many of the victims were women whose husbands, sons, or fathers had been disappeared, a fact that created severe complications for women who were attempting to claim inheritance, divorce, or benefits from the state. 54 From the slogan displayed on banners at the first press conference organized by the Forum for Truth and Justice. The full slogan read “No to forgetting, no to a spirit of revenge, yes to truth, yes to steps that restore justice and permit the page to be truly turned.” Campbell, “Morocco in Transition,” 76. 55 For example, the fvj memorialized the National Day of the Disappeared as October 29 with a press conference featuring testimonials and a mass demonstration in front of the Parliament building. It also started some memorialization work in museums and schools. See Slyomovics, “A Truth Commission for Morocco.” 56 See the full text of the Dahir at ccdh: , viewed September 2005. 57 For the full text see omdh site see , viewed September 2005. 58 In his speech, the king stated that he was establishing the ier to “conclude the process of shelving a thorny issue once and for all.” 59 See also the ier’s website, which states clearly that the commission is “a national commission for truth, equity, and reconciliation” (“le fondement de l’approche de L’ier définie par le souverain comme une commission nationale pour la vérité, l’équité, et la réconciliation”), available at , viewed September 2005. 60 Dahir no. 1.04.42 of 19 Safar 1425 (10 April 2004). See , viewed September 2005. The ier is, in fact, the first truth commission established by a monarch. 61 For a full list of names and a short bio on all the commissioners, see the ier website: , viewed September 2005. 62 The commission’s mandate has since been extended until 30 November 2005. 63 Article 8.

23144_GB.book Page 83 Monday, February 9, 2009 11:46 AM

Transitional Justice in Morocco

83

64 From Morocco’s Report on Compliance with the International Covenant on Civil and Political Rights, excerpted in “Morocco: Human Rights at a Crossroads.” 65 Dahir no. 1.04.42 66 In fact, the Moroccan commission is the first truth commission to have the power of directly granting reparation as opposed to simply recommending it. 67 Article 9, paragraph 1. 68 Article 9, paragraph 3. 69 Ibid. 70 Article 9, paragraph 1. 71 Ibid. 72 7 January 2004. 73 Article 17. 74 Article 16. 75 Article 18. 76 For example, they addressed the question of whether to exhume the bodies of people summarily executed, particularly if they had been buried in unmarked graves. Exhumations not only provide crucial evidence but also may allow families the closure they need through proper burial of their loved ones. In discussing options with families, the commission aimed to be both participatory and sensitive to various cultural and personal preferences. 77 “Rights Body Holds Parallel Dialogue Sessions to Public Hearings,” Arabic News On-line, 12 February 2005, available at , viewed September 2005. 78 Dahir, article 9, paragraph 7. The formal announcement of this decision is available at , viewed September 2005. 79 Dahir, article 9, paragraph 1. 80 The region has recently experienced renewed violence and is under a fairly severe crackdown by the Moroccan security forces. 81 According to ier staff, they decided not to use live broadcasting after the first two hearings as a precautionary measure against unplanned outbursts. The other hearings were widely shown on television but at a delayed pace. 82 ier president Driss Benzekri has stressed that the commission does not want to “repair one injustice with another” and that any victim has the right to follow up with judicial action in the future. See “Victims of Human Rights Breaches Not to Cite Names at Public Hearings,” Maghreb Arab Presse, 8 December 2004, available at , viewed September 2005.

23144_GB.book Page 84 Monday, February 9, 2009 11:46 AM

84

Veerle Opgenhaffen and Mark Freeman

83 As a reaction to the ier’s approach, the amdh organized “alternative hearings” at which victims could name perpetrators. Implicated persons were, however, not given a right of reply – a right that the ier said would need to be respected if witnesses at its public hearings were allowed to make individual accusations. The amdh has also published extensive lists of torturers and other perpetrators, some of whom are still in office. See the web site of the amdh. “Témoignages en Toute Liberté pour la Vérité,” 12 February 2005, available at , viewed September 2005. See also “Public Hearings Point out ‘Polisario’ Human Rights Violations,” Arabic News On-line, 28 April 2005, available from , viewed September 2005. 84 The criteria are posted on the commission’s website: . 85 For example, hearings in Al Hoceima in May 2005 were disrupted by a group of young men chanting “Today, today, not tomorrow! We demand the executioners be tried.” The commission allowed the protest to continue to its natural conclusion, whereupon the hearings began. See Scheherezade Faramarzi, “Allowing Truth, Not Punishment,” Washington Times On-line, 18 May 2005, available from . 86 “Moroccan newspapers report the profound emotional impact on the viewing public.” Susan Slyomovics, “Morocco’s Justice and Reconciliation Commission,” Tharwa Project, 4 April 2005, available at . See also “Emotional Moments at Morocco’s Rights Commission Hearings,” Khalleej Times, 4 February 2005. 87 “irct Praises Morocco’s Efforts to Rehabilitate Victims of Torture,” Arabic News On-line, 9 May 2005, available at , viewed September 2008. 88 For security reasons, these remain confidential for the time being. 89 The commission briefly established an office in the Western Sahara, but its role was limited to statement-taking. 90 For a critique, see “Human Rights at the Crossroads.” 91 “Morocco: Country Reports on Human Rights Practices-2004,” the Bureau of Democracy, Human Rights, and Labor, 28 February 2005, available at , viewed September 2008. 92 “fidh Report: Morocco-Human Rights Abuses in the Fight against Terrorism,” International Mission of Investigation, International Federation for Human Rights 379, 2 (2004): 1–22.

23144_GB.book Page 85 Monday, February 9, 2009 11:46 AM

Transitional Justice in Morocco

85

93 “Morocco: King Pardons Jailed Journalists,” Committee to Protect Journalists, 7 January 2004, available at , viewed September 2008. 94 “Morocco/Western Sahara- 2004,” (Amnesty International, December 2004), available at , viewed September 2008. 95 “La réparation par l’indemnisation matérielle, la réhabilitation et la réinsertion sociale et toutes autres modalités sur la base des investigations menées en vue de l’établissement de la vérité.” Available at ier website, . 96 From his January 2004 speech in which he announced the establishment of the ier. 97 “Driss Benzekri: New Era of Abuses Should Come Within Court Authority,” Morocco Times, 1 June 2005. 98 ier website: , viewed July 2008. 99 The report has yet to be made available in full translation into French or English and has not been widely circulated or made available to the general public. 100 Conference report, “Examining Transitional Justice in Morocco in the Light of the Experience of the Equity and Reconciliation Commission,” forthcoming publication of the Centre for the Study of Human Rights and Democracy (Morocco) and the International Center for Transitional Justice. 101 , viewed July 2008. 102 , viewed July 2008.

23144_GB.book Page 86 Monday, February 9, 2009 11:46 AM

6 Traditional Justice and Legal Pluralism in Transitional Context: The Case of Rwanda’s Gacaca Courts ROSEMARY NAGY

Even as post-conflict justice and accountability become increasingly standardized, one of the key lessons coming out of international involvement is, as the un secretary-general acknowledges, the “need to eschew one-size-fits-all formulas and the importation of foreign models.”1 Research from South Africa, Sierra Leone, Mozambique, and Rwanda, among other countries, has shown that internationalized conceptions of truth, justice, and reconciliation may differ quite significantly from local means of dealing with the past through revenge or forgetting.2 We have also seen an increasing turn towards traditional mechanisms of justice and reconciliation that are based on customary law. This includes the incorporation of local leaders and rituals in Sierra Leone and East Timor’s truth commissions, the use of gacaca courts in postgenocide Rwanda, and a call by Acholi leaders in Northern Uganda to use mato oput and other traditional cleansing ceremonies rather than the International Criminal Court (icc). As the un secretary-general writes in his report on transitional justice, “due regard must be given to indigenous and informal traditions for administering justice or settling disputes,” and this must be done “in conformity with both international standards and local tradition.”3 How to achieve this so that transitional justice is effective and legitimate, locally forged and consonant with the respect owed to all human beings, is a growing and pressing challenge in the field of transitional justice. In this chapter, using the case of Rwanda’s gacaca courts for illustration and analysis, I investigate a significant tension involved in this challenge. Traditional mechanisms based on customary law

23144_GB.book Page 87 Monday, February 9, 2009 11:46 AM

Traditional Justice and Legal Pluralism in Transitional Context

87

arise as a challenge or supplement to internationalized norms of transitional justice and, at the same time, must reckon with them as forces of procedural and normative standardization. This presents a situation of legal pluralism, which may be defined as two or more legal orders within the same social field.4 How ought and do these legal orders interact? How should scholars and practitioners of transitional justice approach the challenge presented above; that is, how should they mediate the tension between the local and the global? I draw upon the study of legal pluralism as an important resource for thinking about the interaction between an internationalized transitional justice based on universal human rights and locally based traditional mechanisms based on customary law. In particular, I argue for a pluralistic rather than a polarizing response to this challenge, and one that is attuned to issues of legality and power. Transitional justice for Rwanda’s genocide occurs at three different levels: the International Criminal Tribunal for Rwanda (ictr), formal criminal trials at the national level, and locally based gacaca courts. Gacaca, with over 12,000 courts throughout the country, is the main venue dedicated to postgenocide justice and reconciliation.5 Gacaca courts were established in 2001 by the Rwandan government largely in response to two major failings of “Western” criminal justice. First, the time-consuming strictures of due process meant that an estimated one hundred years would be needed to complete all prosecutions.6 There was an overwhelming need to process approximately 120,000 suspects who had been languishing for years in prisons whose conditions were themselves a violation of human rights. Through the prosecution of all génocidaires, the Rwandan government wanted to combat the culture of impunity that it believes to be a root cause of the genocide. The relatively informal procedures of gacaca, as well as the sheer number of gacaca courts, were intended to speed up the pace of postgenocide justice. Second, in contrast to the remote nature of formal criminal trials, especially at the ictr, the Rwandan government sought to provide a culturally legitimate forum that would enable ordinary Rwandans to deal with genocidal violence. Through the face-to-face participation of all community members in gacaca, the government sought to establish truth, justice, and reconciliation on the basis of Rwandan custom. Much of the international debate on gacaca revolves around gacaca’s inequality of arms and procedural irregularities, even as it is

23144_GB.book Page 88 Monday, February 9, 2009 11:46 AM

88

Rosemary Nagy

widely recognized that “Western” standards in formal criminal trials did not work. I wish to problematize the typical framing of this debate as traditional indigenous justice versus modern Western justice. There are good reasons, particularly in a postcolonial context, for tradition-based approaches to transitional justice. For one thing, they can respond to the shortcomings of one-size-fits-all solutions that fail to take local contexts into account. Yet, I argue, a romanticized endorsement of “authentic tradition” risks hypostatizing and homogenizing African people and values such that “universal” remains an exclusive, Westernized category. I propose that Santos’s idea of “interlegality” – a negotiated and crafted hybridization between legal orders – allows for a pluralistic, contextualized implementation of universal standards. In examining sophisticated defences of gacaca’s interlegality, however, I caution that a simple focus on the legality of traditional mechanisms will not suffice. While traditional mechanisms based on customary law may be more contextually appropriate, they are nonetheless like any other legal system. That is, they are the reflection of prevailing constellations of power. The issue of power, evident in all legal-political systems, is especially raw in a postconflict setting. In Rwanda, an estimated 500,000 to 800,000 Tutsi and “moderate” Hutu were killed by ethnic Hutu in the 1994 genocide, and at least 50,000 women were raped. In addition, an estimated 25,000 to 45,000 Hutu were killed by the Rwandan Patriotic Front (rpf) in its efforts to win the civil war and halt the genocide and in revenge attacks.7 The genocide devastated Rwanda’s socioeconomic, judicial, and political infrastructure. High levels of poverty have exacerbated the tremendous challenges of truth, justice, and reconciliation in a polarized and traumatized society. The 2003 Constitution entrenches the policy of “antidivisionism,” which holds that there is no such thing as Hutu, Tutsi, or Twa – only Rwandans.8 Yet this policy eclipses meaningful categories for individuals, making it difficult (indeed, criminal) for people to discuss the divisions underlying the genocide or, importantly, the politics of national reconstruction. Postgenocide justice and reconciliation occur against the backdrop of the growing authoritarianism of the current rpf government. Governmental abuses include electoral irregularities, the “Tutsification” of the judiciary and government, censorship, and the elimination of political opponents through harassment, charges of “divisionism,” imprisonment, banning, or killing. These abuses have

23144_GB.book Page 89 Monday, February 9, 2009 11:46 AM

Traditional Justice and Legal Pluralism in Transitional Context

89

been largely tolerated by the international donor community, in part due to the “genocide credit” accumulated as a result of the un’s shameful conduct during the genocide.9

legal pluralism and (post)colonialism A few words on legal pluralism – something that is little studied in the transitional context – are necessary before proceeding. A comprehensive discussion of the rich, varied, and often contested use of the term is beyond my scope. However, we can distinguish, following Merry, between “classic” legal pluralism, which is rooted in anthropological and historical studies of the relationship between colonizer and colonized, and the “new” legal pluralism, which comprises socio-legal analyses of the “complex and interactive ordering between official and unofficial forms of ordering” in all societies.10 All legal pluralists to some degree question or displace the centrality of the state as the source of legitimate law and normative order. In its deepest sense, legal pluralism comprises non-state forces of social regulation that function as law in contradistinction to “lawyer’s law.” This includes, for example, religious and personal law or popular customary courts. In its weaker sense, legal pluralism within a state may include policies of multiculturalism, the recognition of indigenous rights, or the codification of customary law, all of which produce internal contradictions and differential logics of regulation.11 Under conditions of globalization, legal pluralism also refers to the multiplicity of state, infrastate, transnational, and international legal orders – for our purposes especially, the transnational development of human rights law and its interpenetration with municipal legal orders. The study of legal pluralism thus spans colonialism and globalization, focusing on the relationship between subordinate and dominant groups, whether colonizer and colonized; ethnic, cultural, and other minority groups; or the global North and global South.12 An assessment of traditional mechanisms of transitional justice first needs to understand the origins of “tradition” and, moreover, how “tradition” functions in a postcolonial context. Under colonial indirect rule in Africa, modern civil law was administered on the basis of race to white citizens while customary law was administered on the basis of ethnicity to Native subjects. The civilizing intent behind the Victorian “repugnance clause”13 held that indigenous peoples

23144_GB.book Page 90 Monday, February 9, 2009 11:46 AM

90

Rosemary Nagy

should retain their customary laws so long as they did not offend natural justice and morality. Despite early British administrative efforts to protect from abuse the women and slaves who brought their cases to the customary courts, this was soon overtaken by concerns for order and social control.14 Colonial bifurcated rule, rather than being an expression of tolerance and multicultural diversity, became a system of divide-and-rule. “Custom” came to encompass rules and regulations “arising from a newly expanding market economy,” and “previously autonomous social domains like the household, age sets, and gender associations” fell under the scope of chiefly power, now backed by colonial institutions.15 As Banda writes, “For the indigenous men involved in the process of interpretation of the customary law, it was a question of an oppressed group using their limited leverage to gain for themselves more rights and privileges.”16 The fluidity of cultural practices ossified into “traditions” that entrenched collaborative relations of power between indigenous elites, their European colonizers, and the ethnically stratified masses over whom they ruled. The patchwork of customary legal systems thus served to consolidate and reinforce chiefly power in the wider context of alien domination.17 In the case of Rwanda, which was colonized by Germany in 1897 and officially transferred to Belgium in 1919, the distinction between Hutu and Tutsi became entrenched. Following the so-called Hamitic18 thesis, the Belgians thought Tutsis were a Hamitic or Semitic people who originated from northern Africa. They believed the Batutsi to be morally superior because of their stereotypical Caucasoid appearance, in contrast to the Negroid Bahutu. The Batutsi were placed in positions of power and economic privilege, ruling indirectly through the mwami (king) and his chiefs, whereas Hutus were deemed fit only for manual labour and secondary citizenship. With the Hutu social revolution in 1959 and independence in 1962, however, the relations of domination switched. Local Tutsi rulers were ousted, and there was a wave of violent attacks on Tutsis and subsequent exile of many Tutsis to neighbouring countries. Thirty years later, these refugees formed the basis of the rpf, whose goal of armed return to Rwanda helped trigger the panic and extremism that underlay the genocide.19 During the genocide, killers used the ethnic identity cards originally issued by colonial rulers to identify their victims. Rwanda presents an extreme but not unique example of the destructive legacy of colonial indirect rule. Accordingly, general aspects of the postcolonial implications of legal pluralism inform my analysis

23144_GB.book Page 91 Monday, February 9, 2009 11:46 AM

Traditional Justice and Legal Pluralism in Transitional Context

91

of gacaca. For my purposes, the salient implications have to do with the legitimacy of customary law today. Most postcolonial states have moved towards a unified system or some form of dual codification with a bill of rights. Customary practices continue in areas of marriage, family, inheritance, and property. Especially where customary law is state sanctioned, it may represent part of the movement away from colonial rule, signifying an African way of doing things.20 But given the historical background, we ought to be critical, as Mamdani argues, of how often customary law is reproduced as authentic tradition and how indigeneity in the postcolonial African state becomes “a test” for justice and entitlements.21 Moreover, as feminists in particular argue, many customs are radically inegalitarian. At the same time, however, we need also to be wary when (international) criticism of customary practices is grounded in the global discourse of human rights, as is often the case. Like the repugnance clause of the past, human rights can function as the new standard of “civilization” based on Western power and practices; in the postcolonial era, argues Merry, culture replaces race as a subtle differentiator.22 Mutua further asserts that the human rights corpus is positioned as “saviour” to the “savagery” of non-Western culture for a prototypically nonwhite, passive victim.23 In raising these arguments, I do not wish to evoke the overly simplistic debate between universalism and cultural relativism.24 Under conditions of globalization, few if any cultures are truly isolated. Human rights ideas are “inside” every culture, as evidenced, for example, by the development of regional human rights instruments and local struggles for human rights. Rather, the theme pursued here is how to negotiate between the local and the global in shaping a response to specifically localized crimes that offend all of humanity. I argue below that international response to gacaca in its planning and pilot phases, rather than taking a pluralistic approach, created a deeply problematic polarization between Westernized human rights and authentic tradition. First, however, I briefly discuss the rationale and operation of gacaca courts.

rationale and operation o f c o n t e m p o r a ry g a c a c a c o u r t s The rationale for establishing gacaca is perhaps best understood against the foil of what has not worked (and this juxtaposition does help to explain the polarization in international responses to

23144_GB.book Page 92 Monday, February 9, 2009 11:46 AM

92

Rosemary Nagy

gacaca). Formal criminal trials at the international and national courts have suffered immense difficulties in terms of capacity and legitimacy. Although the ictr has achieved some important symbolic results, such as the first conviction of rape as a crime of genocide, its primary function is largely viewed as the “reaffirmation of the international community’s own morality.”25 The Rwandan government, which had a seat on the un Security Council in 1995, voted against the ictr despite originally requesting international assistance. The rpf’s grievances with the ictr included splitting the Office of the Prosecutor and appeals chambers with the icty, locating the tribunal in Arusha rather than in Rwanda, and not including the death penalty for leaders of the genocide. In its early years, the ictr was plagued with charges of corruption, political infighting, and incompetence. It has also been deeply criticized for its tremendous expenditure (total us$1 billion by the end of 2007)26 and slow progress (twenty-nine convictions and five acquittals).27 The ictr’s failed attempt to investigate rpf soldiers for war crimes also damages its legitimacy (the rpf government was angered by the tribunal’s “divisionism” and Hutus resent one-sided justice).28 Even if the pace of justice were faster, the ictr has had limited impact on the lives of ordinary Rwandans. This is because, due to its inaccessible location, lack of outreach, and failure for years to operate in Kinyarwanda, many Rwandans are unaware of the tribunal’s existence. For those who do follow the ictr (and outreach has improved), there have been serious discrepancies between Rwandan and international justice. People may recognize that the ictr has ensured accountability for top génocidaires who might otherwise never have gone trial. But they also see that the worst perpetrators live in luxury while lower-level perpetrators live in squalid Rwandan prisons. And genocide leaders convicted at the ictr do not receive the death penalty, whereas “footsoldiers” convicted in Rwanda were subject to execution.29 Moreover, as Alvarez points out, international trials of genocide leaders “tell us next to nothing about those most directly involved in the killings or about their individual victims … And they will not tell anyone how the average Rwandan, not in a position of authority, was co-opted into mass slaughter.”30 That being said, domestic criminal trials have been similarly remote to ordinary citizens, particularly those residing outside Kigali and the provincial capitals in which the formal courts are located.31 In an impoverished and under-educated nation, daily concerns with

23144_GB.book Page 93 Monday, February 9, 2009 11:46 AM

Traditional Justice and Legal Pluralism in Transitional Context

93

survival far outweigh keeping up with the complexities of a judicial process. The limited role for victims and affected communities results in frustration and alienation. Many Hutus also see domestic trials as an exercise of partial, or victors’, justice because of the lack of judicial independence and the exclusion of rpf crimes. In terms of institutional capacity, although the national courts operate much more quickly than the ictr, they still are not fast enough. Furthermore, domestic trials have been heavily criticized by the international community for failing standards of due process, even after extensive reforms in 2002 that virtually shut the system down for two years.32 Thus it is not surprising that the Rwandan government rebuffed “classic” legal standards in the (mistaken) expectation that the entire gacaca process would be completed in three to five years. The motivation for gacaca was not just expedient capacity but also the desire to establish tradition-based processes at the community level in order to involve ordinary Rwandans, especially rural ones, in truth, justice, and reconciliation.33 With gacaca, the entire community, or General Assembly, gathers for hearings, which are presided over by nine inyangamugayo. These judges are elected by the community on the basis of their integrity and receive some training prior to their work.34 The gacaca hearings are divided into investigative and judgment phases. In between the two phases, judges categorize the accused on the basis of confessions or accusations. “Category One” ringleaders and those responsible for sexual torture or rape continue to be sent to the formal courts. (Current amendments propose moving rape trials to gacaca courts, where they will be held in camera.)35 The gacaca courts deal with génocidaires in Category Two and Category Three – murderers, torturers, ordinary killers, attackers, accomplices, and those who committed offences against property.36 There is also a system of appeals. Like the two other judicial forums, gacaca is not for the prosecution of rpf soldiers; a form of “victors’ justice,” it is designed for génocidaires only. Information-gathering in gacaca was at first a “completely dejudicialized process” that relied upon citizens to come forward with evidence or accounts that denounced perpetrators and identified victims. However, the National Service of Gacaca Jurisdictions now relies on local administrators to assist the judges in the collection of information, meaning that “truth” is largely predetermined and is

23144_GB.book Page 94 Monday, February 9, 2009 11:46 AM

94

Rosemary Nagy

only validated by gacaca assemblies.37 Nonetheless, during the hearings any interested person may speak in defence of or against an accused person or ask questions. After the inyangamugayo reach judgment, the sentencing of convicted perpetrators follows guidelines set by Parliament. These range from life imprisonment for well-known murderers or torturers to civil reparation for those found guilty of property offences. Those convicted of genocide or crimes against humanity may also lose certain civil rights. Significantly, however, valid confessions, guilt pleas, repentance, and apologies result in reduced sentences or the commutation of sentences to community service.38 As Ingalaere notes, two cornerstones of the gacaca legislation were the decentralization of justice and the principles of confession and plea-bargaining.39 Both were intended to hasten the search for truth and accountability. As it turns out, however, gacaca has facilitated a huge increase in accusations, meaning that the number of suspects has ballooned. This has necessitated the addition of some three thousand gacaca courts, increased frequency of meetings, and pressure on judges to speed up the proceedings.40 The twin principles of truth and accountability are also intended to enforce national unity. According to the National Service of Gacaca Jurisdictions: The Gacaca Courts system will allow the population of the same Cell, the same Sector to work together in order to judge those who have participated in the genocide, identify the victims and rehabilitate the innocents. The Gacaca Courts system will thus become the basis of collaboration and unity, mainly because when the truth will be known, there will be no more suspicion, the author will be punished, justice will be done to the victim and to the innocent prisoner who will be reintegrated in the Rwandan society.41 In sum, gacaca, far more than international or national trials, aims to resonate with ordinary Rwandans because it involves the entire community in face-to-face interaction and draws on Rwandan customs. Indeed, surveys in the pilot phases of gacaca indicated high levels of popular support.42 However, subsequent qualitative fieldwork is revealing a somewhat different picture. Sensitization campaigns and mandatory attendance are needed to enforce the mass

23144_GB.book Page 95 Monday, February 9, 2009 11:46 AM

Traditional Justice and Legal Pluralism in Transitional Context

95

participatory image of gacaca. Many Tutsi survivors are afraid to participate for fear of reprisals, and, indeed, incidents of harassment, violence, and murder have been documented.43 Many Hutu wonder if gacaca is a form of genocide against them because, overall, the reconciliation strategies of the Rwandan government depict all Tutsis as victims (Hutu victims of the genocide and civil war are not recognized in the same way), and all Hutu men are subject to suspicion and surveillance by the state.44 This is reinforced by false accusations in gacaca courts and the prohibition against trying rpf crimes. Furthermore, Thomson argues, far from achieving reconciliation through truth and forgiveness, much of the interaction between ordinary Rwandans “constitute[s] ways of coping, rather than coexisting.” Rwandan culture is fairly closed and private, and few Rwandans have experience speaking in public. This leaves participants, both accused and accusers, highly vulnerable. Thomson observes that “ordinary Rwandans work covertly to disguise their actions and speech both in private with other Rwandans and with the formal requirements of the institutions and practices of national unity.”45 Buckley-Zistel similarly depicts this coping strategy as “chosen amnesia,” a deliberate inability to recall the social divisions that started the genocide so as to “avoid antagonisms and be able to live peacefully.”46 Rwandans may grudgingly obey the government’s call for forgiveness, but this does not come “from the heart.”47 The overall sense among people is that they have little choice but to “pretend peace.”48 This is due to government control of the social and political spheres as well as to the pragmatics of living in proximity with one another. Thus, the overall picture is of a top-down strategy of national reconciliation. Furthermore, it is a strategy that functions to consolidate rpf power. This occurs in several ways. First, as Waldorf documents, “elements within the rpf appear to be using gacaca to either sideline or control Hutu elites who had been reintegrated into the government’s ranks.” The gacaca courts in several instances have functioned as a rubber stamp to the government’s genocide accusations against the prime minister, minister of defence, a major general, a provincial governor, and several parliamentarians.49 Second, the rpf elite, comprised mainly of anglophone Tutsi returnees, have a troubled and unequal relationship with the francophone Tutsi survivor community, which feels politically marginalized by

23144_GB.book Page 96 Monday, February 9, 2009 11:46 AM

96

Rosemary Nagy

the government. Gacaca for many Tutsi survivors represents a traumatizing and fearful process that results in the liberation of génocidaires. On top of this, the government has failed to provide reparation despite legal provisions for a victims’ fund in the 1996 genocide and 2001 gacaca laws.50 Third, as a form of victors’ justice, gacaca facilitates impunity for rpf crimes and fails to recognize Hutu survivors of the civil war. Fourth, as noted, the gacaca process is generating many new accusations – against almost half of all Hutu men – through the naming of accomplices (which is required for reduced sentence) and broad definitions of génocidaires that include property offenders, accomplices without intent, and bystanders.51 Although the government plans to narrow the definition of Category One and says it will not incarcerate new suspects, Waldorf argues that some elements within the rpf may be more interested in gacaca to inculpate a large swathe of Hutu men than in actually seeing them brought to trial; mass accusations would alone exert a degree of social control over the Hutu majority, while further promoting a notion of collective Hutu guilt. In addition, genocide accusations might be used to disenfranchise a sizable proportion of eligible Hutu voters.52 Despite gacaca’s role in the consolidation of state power at the elite and ordinary levels, there is some autonomy within local social fields. This is because the Rwandan government faces a problem that is frequently remarked upon in studies of legal pluralism: how to effect social transformation through the clumsy instrument of law (or whether this is even possible). There are some forms of local resistance to gacaca, such as the “nationwide phenomena” of showing up late53 and outright refusal to participate or to testify.54 Moreover, the insecurities generated by gacaca forecast its longterm inability to achieve the goals of truth, justice, and reconciliation. If Rwandans continue simply to pretend peace, then gacaca will have been for naught. And the transformative potential of gacaca should not be discounted. Its very contradictions – that “it obstructs that which it facilitates at the same time”55 – tease out the possibility of truth, justice, and reconciliation. And it is this possibility, as against the limits of formal trials, that is seen as the lesser of two bad options for dealing with the past.56 In the following

23144_GB.book Page 97 Monday, February 9, 2009 11:46 AM

Traditional Justice and Legal Pluralism in Transitional Context

97

section I examine how initial responses to gacaca’s potential established a polarizing rather than a pluralizing debate.

international response to gacaca In turning to gacaca, the Rwandan government wished to demonstrate that “Rwandan society has the capacity to settle its own problems through a system of justice based on the Rwandan custom.”57 Fairly immediate responses in the planning and pilot phases of gacaca fell between two poles. The first was strenuous concern voiced by human rights advocates such as Amnesty International that gacaca fell far below international standards of due process and failed sufficiently to protect victims.58 The main due process concerns include the inequality of arms between defence and prosecution, poor training of judges or their involvement in the genocide, and the use of hearsay or circumstantial evidence. The second pole of response, emerging in journalistic and academic commentary, was a fairly romanticized endorsement of gacaca as African restorative justice that was better suited to what had happened than was Western retributive justice.59 These two responses reinforced one another: defenders warned that pressuring gacaca to move towards “Western” standards of legal process and documentation would only return Rwanda to the status quo, which had proven unworkable.60 The attraction of gacaca was its rootedness in indigenous culture, accompanied by a general concern for democratization and authenticity to which its grassroots nature appealed.61 On the one hand, as Chakravarty argues, the human rights critique refuses to allow a plurality of functioning human rights models because it is focuses on “universal standards and legal rules, overlooking local processes, knowledge and relationships.”62 While there are serious and legitimate concerns about the operation of gacaca, it is the rigidity of the human rights critique that draws disapproval. This is because it forces a single standard in the name of universalism. Meyerstein, drawing on Robert Cover, discerns a “jurispathic impulse” in the absolutism of the human rights critique, referring to the repressive nature of centralized law when it encounters resistance or alternatives.63 Pointing to the colonial history of categorizing Africans and appropriating custom through law “in order to ‘civilize’ them through symbolic and physical forms of violence,” she notes that it is “hard to resist drawing

23144_GB.book Page 98 Monday, February 9, 2009 11:46 AM

98

Rosemary Nagy

parallels” to the postcolonial construction of gacaca as deficient or lacking from Western standards.64 And, as Drumbl asks: is the fact that gacaca deviates from globalized constructions of the rule of law indicative of the failure or dangerousness of [gacaca]? What is the more important goal: conforming to often abstract notions of the rule of law or, rather, developing institutions most likely to promote peace and justice in a manner compatible with local histories and values?65 Yet, on the other hand, early defences of gacaca against the universalizing critique concluded too easily that gacaca represented a culturally appropriate and therefore legitimate form of transitional justice. One feature of this defence involved endorsing gacaca as traditional African restorative justice in contradistinction to Western retributive justice. But this tended towards a fairly Orientalist attraction. For instance, some defences of gacaca pointed to South Africa’s Truth and Reconciliation Commission (trc) and its reliance upon forgiveness and ubuntu (“common humanity”) as evidence of African values of restorative justice.66 This not only simplistically lumps Rwandans and South Africans together but also ignores that revenge-based beatings that took place in local courts during the time of the trc and the fact that these, rather than talk of forgiveness, produced community reconciliation.67 In other words, “African” justice may be just as punitive as “Western” justice. Rwanda’s decision to proceed with maximum accountability and the death penalty rather than with amnesty and a truth commission shows that retribution and punishment are not the sole preserve of the West. Furthermore, the growing restorative justice (counter-)tradition in the West also goes against any attempts to split justice into Western and non-Western halves.68 All this complicates presumptions of what may or may not be culturally appropriate or legitimate. Another misleading feature of the romanticized response is its reliance on the purported authenticity of gacaca. While not much is known about the “old” gacaca, it was not intended for murder, let alone genocide. Traditionally, gacaca was a method of local conflict resolution whereby respected male elders adjudicated disputes over property, inheritance, personal injury, and marital relations.69 While the mwami (king) was the ultimate arbiter, disputes would

23144_GB.book Page 99 Monday, February 9, 2009 11:46 AM

Traditional Justice and Legal Pluralism in Transitional Context

99

first be heard “on the grass” (common translation of gacaca) by his local guardians of tradition. The primary aim of gacaca was to restore harmony and social order in the community; a subsidiary aim was punishment of the perpetrator or compensation through a gift. Under colonial indirect rule, gacaca remained in use for localized disputes, but its legitimacy waned as the king and his chiefs gradually lost authority. After independence, gacaca was absorbed into the modern state: it was used for the resolution of disputes at the lowest communal level; however, if need be, cases would be forwarded to the formal court. Rather than operating spontaneously, gacaca was given fixed procedures and meeting times by local authorities. However, the traditional conciliatory element of gacaca remained, and many decisions did not conform to written law.70 Some authors state that, by the late 1990s, gacaca was “largely moribund,” while others report that gacaca forums emerged spontaneously after the genocide in order to deal with looting and other property offences, but not the killings.71 The genocide gacaca courts depart significantly from the customary forum – not least in their subject matter jurisdiction. Another significant departure is found in the heavy involvement of the state in gacaca’s implementation and administration. Only restitution for property offences is determined on a customary basis, that is, by the local judges; all other sentences are set by formal law. And only when an amicable restitution settlement is reached can the conciliatory spirit of traditional gacaca be detected.72 Otherwise, as Ingalaere reports, a prosecutorial logic predominates gacaca and “the element of reconciliation between families (and individuals) is no longer at the centre of the institution or is even not present.”73 Certain features of postgenocide Rwanda also belie the traditional notions of community to which contemporary gacaca appeals. The rpf’s villagization policy has radically altered the traditional life of hillside farms. The return of refugees and exiles makes changing urban neighbourhoods volatile, allowing witnesses and perpetrators to hide in anonymity. And roving bands of Interahamwe committed crimes outside their local gacaca jurisdictions, making community-based courts rather beside the point. Given the extent to which contemporary gacaca explicitly departs from its original functions and procedures, it is necessary to raise the possibility, as does Uvin, that the appellation “gacaca” is there “just to lend a sense of history and legitimacy, an invention of tradition.”74

23144_GB.book Page 100 Monday, February 9, 2009 11:46 AM

100

Rosemary Nagy

Hence, it is especially important to determine the time period to which “indigenous culture” refers – something the romanticized theme of response fails to do. Part of the Rwandan government’s reconciliation policy is to insist that divisions between Tutsis and Hutus were solely the result of colonial rule; in precolonial times, it asserts, everyone lived in harmony. This position is advanced against the Hutu extremist claim that Tutsis invaded Rwanda and subjugated the “native” Hutu and Twa. Scholarly debate over precolonial Rwanda remains unsettled, but the answer probably lies somewhere in between – pre-existing identities were hardened under colonial rule.75 Insofar as the rpf says gacaca is based on precolonial tradition,76 this may serve to reinforce what is a fairly repressive government strategy of reconciliation that refuses to address the lingering ethnic divisions and identities that actuate people’s lived experiences of the genocide and its aftermath. Or, from Hutu perceptions of history, references to the precolonial past may seem like a return to Tutsi lordship and Hutu servitude – a perception reinforced by the contemporary Tutsification of the Rwandan state.77 This is not to say that there is nothing customary or indigenous in contemporary gacaca; the courts are indeed inspired by a Rwandan tradition. The point, rather, is that “tradition” is in continual evolution, as the study of legal pluralism shows generally. And the use of gacaca, like the appropriation of tradition in other situations, has been constructed for purposes of social control and engineering. In short, to anchor the solution to the failings of “Western” justice in the uncritical exhortation of tradition is to risk portraying “the African” (South African, Rwandan – it doesn’t matter) as ahistorical and unchanging. Culture is neither static nor impermeable. To suggest otherwise is to veer towards the very pitfall that cultural sensitivity wishes to avoid. The fetishization of tradition, rather than contextualizing the universal, constructs “the African” as other, as outside modernity. The end effect is to set “the African” apart from the West in an oppositional reference that buttresses the West’s perception of itself as the standard-bearer of modern civilization.78 By cornering gacaca as a traditional African solution, it is implied that Rwandans have no need of or interest in “Western” human rights. The colonizing undertones of the romanticized response, in other words, preclude the possibility of a postcolonial legality. The romanticized assessment of gacaca does not adequately respond to the universalizing discourse of human rights; in fact, it reinforces the

23144_GB.book Page 101 Monday, February 9, 2009 11:46 AM

Traditional Justice and Legal Pluralism in Transitional Context

101

absolutist presumption that there is only one standard for human rights. The challenge, then, is not determining which human rights to “abandon” but figuring out how to transcend the either/or choice. In the following section, I examine the possibility of a pluralistic legality that lies between different normative-legal sites. I caution, however, that analyses of traditional justice must pay attention not only to legality but also to power.

( i n t e r ) l e g a l i t y a n d p ow e r Most legal pluralists understand the relationship between different legal sites to be an interdependent ordering of “semi-autonomous social fields.”79 This means that state law is both internally and externally interpenetrated with non-governmental or intergovernmental forces that generate their own obligatory norms.80 State law may depend on non-state social fields for its implementation; law may be ignored, adapted, or resisted. Interactions between state law and indigenous customary and/or suprastate law are seen as dynamic and heterogeneous. Law and legal discourses function as the site and the medium of ongoing interpretation and negotiation between and within different legal orders. Legal pluralism, in other words, need not involve a top-down order as actuated by the universalizing human rights critique but a porous one characterized by “interlegality.” Santos explains interlegality as the interpenetration, mixing, and superimposition of different legal spaces and interpretive viewpoints.81 With interlegality, there are universals, not least of which is the recognition of concepts such as rights, fairness, and sanction.82 But their content is indeterminate, negotiated between actors who are simultaneously constrained and affecting. The notion of interlegality, I suggest, permits a way past the dichotomization of Western/African, modern/traditional, without completely eclipsing these distinctions. The point is to recognize these as distinctions without succumbing to dangerous constructions of otherness, and to uphold universal ideals without arrogation. This requires a certain degree of indeterminacy: a pluralistic approach that avoids imposing one-size-fits-all solutions without falling into simplistic assumptions that indigeneity is an automatic basis of legitimacy. The challenge is to locate that which lies inbetween the two poles of response. It is the indeterminate and ongoing negotiation between these positions that might successfully

23144_GB.book Page 102 Monday, February 9, 2009 11:46 AM

102

Rosemary Nagy

characterize an interlegal approach to transitional justice. My use of “in-between” follows Fitzpatrick and Darian-Smith, who note that the postcolonial person is located in-between, belonging but not of the West. This is because constructions of Western identity depend on the exclusion of backward peoples; yet, in order to consolidate Western arrogation of the universal, the “other” must also be included. Postcolonialism, rather than resolving this ambivalent belonging by locating human rights in the West, “holds apart” what a universalizing discourse would oppressively unite.83 With this holding apart, I suggest, the ideal of human rights allows for flexibility, contestation, and contextualization. This is in contrast to predetermined imperatives, which end up suppressing or alienating the very particularity that was supposed to be brought under the scope of universal humanity. Interlegality captures the indeterminacy and in-betweenness of negotiation, adaptation, mutuality, and antagonism across plural legal and normative orders. We can already see interlegality at work in the ongoing relations between the Rwandan government and the international community. For instance, just as the international community is learning to bend away from one-size-fits-all solutions, so too is the Rwandan government adjusting gacaca through the critical support of ngos such as Prison Reform International and Avocats San Frontières.84 Moreover, in the context of transitional justice, we also know that legality is always in flux, striving to negotiate conditions of profound socio-political rupture. Globalized constructions tend to treat the rule of law conventionally; that is, as stable, continuous and prospective. But as Teitel shows in her comparative analysis of Eastern Europe, Latin America, and South Africa, the rule of law in transitional settings instigates a normative shift rather than maintaining stability.85 The rule of law under these conditions is always messy, a compromise, shaped by context, and in transition itself. To be sure, Rwanda is neither liberal nor liberalizing,86 and international law should provide legal continuity and normative resources in these and similar circumstances. But international law should be understood as part of the transitional framework specified by Teitel and not as absolute, messianic authority.87 In other words, interlegality is characterized by a practice of giveand-take between international standards and local practices. As Longman says with respect to gacaca, “we must seriously contemplate the possibility that there is more than one acceptable way to

23144_GB.book Page 103 Monday, February 9, 2009 11:46 AM

Traditional Justice and Legal Pluralism in Transitional Context

103

do this.”88 Gacaca, he argues, incorporates alternative interpretations of human rights that, in principle, provide basic safeguards and a “less culturally bound notion of what constitutes a fair trial than that used by the critics of gacaca.”89 Among his reasons: The inyangamugayo may lack the legal competence of trained judges, but they possess “contextual competence” and receive technical assistance from the National Jurisdiction of Gacaca Courts. The accused may be denied access to legal counsel, but the role of professionals is less extensive in gacaca than in regular courts. And while defendants should be given further assistance in gathering evidence and tracking witnesses, this would not require lawyers. In short: “there does not appear to be anything inherent to the gacaca process that is prima facie inconsistent with the respect of human rights principles.”90 Similarly, Meyerstein identifies gacaca as a “particularized form” of transitional justice that “is attentive to the needs of postcolonial society in the developing world.”91 Gacaca is ambivalently located along “an axis of legality that at once panders to and resists” the internationalized belief that transitional justice “can only occur through a formal trial in the context of international criminal justice.”92 Like the absolutist model, it insists upon maximum accountability through a judicial process (rather than a political process such as executions). But it sheds “the strictures of Nuremberg justice” and is instead immersed in the social sphere through mass participation and an underlying commitment that postgenocide justice includes development – something from which formal justice takes far too many resources.93 Gacaca for Meyerstein is “a truly hybrid postcolonial cultural form” that shows how the projection of the idea of human rights into national borders is “by no means unidirectional nor necessarily similar in different locales.”94 I highlight Longman’s and Meyerstein’s analyses here because they move well beyond the romanticized response to provide recent and fairly sophisticated defences of the interlegality (not their term) between gacaca’s customary roots and international legal standards. They defend gacaca as a contextually appropriate, pragmatic implementation of human rights – something Merry describes as the remaking of global human rights in the “vernacular.”95 By depicting gacaca’s customary roots as both conforming to universal standards and challenging these standards, they capture the distinction between African justice and Westernized justice without dangerously

23144_GB.book Page 104 Monday, February 9, 2009 11:46 AM

104

Rosemary Nagy

polarizing the two. But their approaches remain incomplete due to the limited treatment of the relationship between law and power.96 For instance, although Longman is well aware of the potential of gacaca to function as an instrument of social control, he conceptually separates law from politics by saying that there is nothing “prima facie inconsistent” in gacaca with human rights. Logistical and political concerns impede the promise of gacaca, and these, he implies, are avoidable or rectifiable. Subsequently, he underplays the ways in which gacaca law (and the constitutional clause on antidivisionism) functions to consolidate government power and to shield rpf soldiers from accountability. Meyerstein, in contrast, does not shy away from exposing the power dynamics embedded in law: “It may be that the myth of neutral law is simply more powerful in the West, and the gacaca present a situation where the myth’s masking over of power is laid bare, and we find this uncomfortable to look at.”97 In this passage, Meyerstein importantly acknowledges the interpenetration of law and power that marks all legal systems, thus improving on Longman’s account. She is correct to say that recalibrating gacaca’s equality of arms is not a panacea to the “deep-seated animosities” of a postconflict society, where collectivized guilt seems a natural response to collective violence.98 But her scrutiny of law and power stops short. It is largely one-sided, preoccupied with the “countercritique” that gacaca generates against the civilizing discourse of human rights. Meyerstein is mainly concerned to defend the hybridized legality of “gacaca as gacaca” – a term that connotes a standalone assessment, in isolation from politics. For instance, although Meyerstein accedes that the rpf may be attempting to reinforce its power through gacaca, she largely discusses the lack of rpf prosecution as a problem of impunity that affects Hutus’ views on gacaca “and their willingness to participate in it.”99 In other words, she narrows on the legal and procedural consequences of victor’s justice without sufficiently attending to its broader implications vis-à-vis everyday power within Rwanda. This is regrettable given that the predominant stance within the Rwandan government and the lawyers and ngos who assist and implement gacaca is that “we only apply the law.”100 Such narrow legalism may facilitate interaction with a government that the international community wishes to avoid further alienating, but it also produces blindspots to the dynamics of power embedded in gacaca.

23144_GB.book Page 105 Monday, February 9, 2009 11:46 AM

Traditional Justice and Legal Pluralism in Transitional Context

105

To be clear, neither Longman nor Meyerstein are unaware of the potential for gacaca to operate as an instrument of social control. But insofar as both respond to the international debate on gacaca’s legality or lack thereof, their defences are blinkered and shaped by this narrow legalism.101 The study of legal pluralism, in contrast, offers an analytic framework that is attuned to dynamics of power because it by definition moves beyond “lawyer’s law” to examine the social and political forces that direct norms and behaviour. To borrow (somewhat loosely) from Santos’s use of maps as a metaphor for law, analyses of interlegality should move between the different interpretive standpoints generated by the different scales and perspectives within a social field.102 Each scale of analysis, whether small-scale from the international plane or large-scale from the local plane, emphasizes different phenomena. As in the tradition of mapmaking, a fixed point is projected as the central concern around which the meaning of the social space is organized. It is thus important to superimpose the different scales and projections against one another and to take into account their complex and multidirectional interactions. Multiple directions of analysis are necessary because law operates at once as an instrument of transformation and as a mode of power and resistance – and it does so from multiple sites. To specify for the Rwandan case study, in centralizing the flaws of international human rights law as a discourse of power, as Meyerstein does, gacaca becomes thematized as a site of resistance and one that offers hope for dealing with the genocide. But the larger-scale exposure of the local power dynamics embedded in gacaca solicits a rather different reading – one in which gacaca is also plagued by fear, insecurity, and silence. In other words, the analysis needs to be rounded out. At the very least, this should entail a critical assessment of the power of the Rwandan government to shape the course of one-sided justice – a power that has gone largely unchecked, if not abetted, by the international community.103 The risk otherwise is to embark on a path of transitional justice that is indifferent to the continuance of the kinds of structural violence that precipitated the 1994 genocide. Today, the impunity of rpf soldiers for war crimes is one of the biggest obstacles to reconciliation in Rwanda because if creates a “moral hierarchy of right and wrong, pain and suffering.”104 Rather than treating all Rwandans as victims of genocide and civil war, gacaca enhances the social cleavages that it ostensibly seeks to eradicate.105 It

23144_GB.book Page 106 Monday, February 9, 2009 11:46 AM

106

Rosemary Nagy

permits Hutu extremists to inflate the extent of rpa abuses and thereby to argue it was a “double-genocide.”106 By shutting a large portion of the population out of the process of airing their grievances, gacaca fails to grapple with the complexity of Rwanda’s cycles of violence. Attacks on genocide survivors and genocide memorials may be disturbing predictors that a renewal of violence simmers just below the surface of Rwandan society.107 In short, the contextual sensitivity upon which support for gacaca appears to rest cannot be abstracted from the socio-political dynamics of power either across or within normative-legal orders. Because interlegality is porous and multidirectional, we should be able to envision a critical acceptance of gacaca’s alternative while also challenging the rpf’s growing authoritarianism. Select prosecution of rpa war crimes at the international level could be part of this strategy. Although these trials might suffer a lack of legitimacy similar to that suffered by their predecessors, neither Rwandans nor the international community can afford a repetition of past indifference: for in the 1990s, the international community blindly painted a rosy picture of Rwanda’s development despite the growing violence of the politics of exclusion on the ground.108 With respect to gacaca itself, there is not much time left to make further adjustments. But it would be foolish to presume that completion of the process will mean reconciliation has been achieved. What will be needed is a continuation of transitional justice projects that are more inclusive of all Rwandans.109 Moreover, these projects should carry on the spirit of interlegality – and this will likely involve, as does gacaca, uncertainties and even contradictions.110 But this is inevitable as transitional justice moves away from one-size-fits-all solutions. The challenge will be to draw out the strengths of an indeterminate, pluralistic approach to transitional justice: a constant process of adaptation and negotiation that embraces local values and protects human rights, and that engages issues of legality and power across multiple sites.

conclusion The case of Rwanda’s gacaca courts raises important questions and lessons that can be applied to the use of traditional justice mechanisms in other transitional societies. I have in this chapter raised the study of legal pluralism as an important resource for thinking about

23144_GB.book Page 107 Monday, February 9, 2009 11:46 AM

Traditional Justice and Legal Pluralism in Transitional Context

107

the interaction between an internationalized transitional justice and locally based mechanisms based on customary law and traditional values. I have argued that the negotiation and adaptation between local and global should be characterized by a degree of indeterminacy such that universal standards are contextualized and contested. A further point raised in the analysis is that power – within and between multiple socio-legal sites – is an inherent feature of interlegality and needs to be accounted for in the pluralization of transitional justice. Attention and assessment must extend beyond the mere mechanics of legality to include an interrogation of “tradition,” including who speaks for and benefits from the appropriation of tradition; how agents and subjects of transitional justice understand or portray the relationship between “traditional” and “Western” values; and how law itself functions to consolidate power relations even as it pursues justice and reconciliation.

notes

1

2

3 4 5

Rosemary Nagy is currently assistant professor in gender equality and social justice at Nipissing University. United Nations Secretary-General, Report on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (2004), available at , viewed 8 September 2008. Richard A. Wilson, “Reconciliation and Revenge in Post-Apartheid South Africa: Rethinking Legal Pluralism and Human Rights,” Current Anthropology 41, 1 (2000): 75–87; Rosalind Shaw, Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone (Washington: United States Institute of Peace: 2005), , viewed 9 September 2008; Helena Cobban, Amnesty after Atrocity? Healing Nations after Genocide and War Crimes (Boulder, co: Paradigm, 2007); Susanne Buckley-Zistel, “Remembering to Forget: Chosen Amnesia as a Strategy for Local Coexistence in Post-genocide Rwanda,” Africa: The Journal of the International African Institute 76, 2 (2006): 131–50. unsg, Report on Rule of Law and Transitional Justice, 12. Emphasis added. Sally Engle Merry, “Legal Pluralism,” Law and Society Review 22, 5 (1988): 869–96, at 870. Rwanda also has the National Unity and Reconciliation Commission, which runs ingando (solidarity, or re-education, camps) as one of its major

23144_GB.book Page 108 Monday, February 9, 2009 11:46 AM

108

6

7

8 9

10 11

12 13

14

15 16 17 18

Rosemary Nagy

activities. Other post-genocide policies include imidugudu, or villagization, which relocates people from their hillside farms to newly created villages. National Service of Gacaca Jurisdictions, “Overview: Historical Background” at , viewed 9 September 2008. Alison Des Forges, Leave None to Tell the Story: Genocide in Rwanda (New York: Human Rights Watch, 1999), 15–16, available at , viewed 9 September 2008. Article 33 states, “Propagation of ethnic, regional, racial or discrimination or any other form of division is punishable by law.” Filip Reyntjens, “Post-1994 Politics in Rwanda: Problematising ‘Liberation’ and ‘Democratisation,’” Third World Quarterly 27, 6 (2006): 1103– 17; Filip Reyntjens, “Rwanda, Ten Years On: From Genocide to Dictatorship,” African Affairs 103 (2004): 177–210. Ibid., 873. William Twinning, Globalisation and Legal Theory (Evanston, il: Northwestern University Press, 2001), 225–6; Boaventura de Sousa Santos, Toward a New Legal Common Sense (London: Butterworths, 2002), 95. See Anne Griffiths, “Legal Pluralism,” in An Introduction to Law and Social Theory, ed. R. Bonakar and M. Travers, 289–310 (Oxford: Hart, 2002) for a discussion of deep and weak legal pluralism. Merry, “Legal Pluralism,” 872. The French, Belgians, and Portuguese had similar requirements. See Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton, nj. Princeton University Press, 1996), 115. See Sally Engle Merry, “From Law and Colonialism to Law and Globalization,” Law and Social Inquiry 28, 2 (2003): 569–90, 574. She largely follows Martin Chanock, Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge: Cambridge University Press, 1985). Mamdani, Citizen and Subject, 122, 110. Fareda Banda, “Global Standards: Local Values,” International Journal of Law, Policy and the Family 17 (2003): 1–27, at 8. Mamdani, Citizen and Subject, 110ff. “Hamitic” refers to Ham, the dark son of Noah, who was banished from the ark. Thus, the Tutsis, as dark Europeans, were both of humanity (unlike the Hutu) and also excluded from humanity. See M. Mamdani, When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda (Princeton, nj: Princeton University Press, 2001).

23144_GB.book Page 109 Monday, February 9, 2009 11:46 AM

Traditional Justice and Legal Pluralism in Transitional Context

109

19 See Scott Straus, The Order of Genocide: Race, Power and War in Rwanda (Ithica, ny: Cornell University Press, 2006). Straus persuasively argues that ethnic hatred is not the cause of the genocide. 20 See Leila Chirayath, Caroline Sage, and Michael Woolcock, 2005, “Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems,” 8 at , viewed 9 March 2008. 21 Mahmood Mamdani, “Beyond Settler and Native as Political Identities: Overcoming the Political Legacy of Colonialism,” Compartive Studies in History and Society 43 (2001): 651–64, at 657. 22 Merry, “From Law and Colonialism to Law and Globalization,” esp. 570– 1; 578–83. 23 Makau Mutua, “Savages, Victims and Saviors: The Metaphor of Human Rights,” Harvard International Law Journal 42 (2001): 201–42. See also Orford’s discussion of Spivak’s critique of white women saving brown women from brown men. Anne Orford, “Feminism, Imperialism and the Mission of International Law,” Nordic Journal of International Law 71 (2002): 275–96, at 286. 24 For a persuasive dismissal of this stale debate, see Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago: University of Chicago Press, 2006). 25 Peter Uvin and Charles Mironko, “Western and Local Approaches to Justice in Rwanda,” Global Governance 9, 2 (2003): 219–31, at 220. 26 Hirondelle News Agency, “The Judges of the ictr Have Chosen the Law Instead of Diplomacy,” 22 May 2007, at , viewed 23 November 2007. 27 Stephanie Niewoudt, “Rwanda Tribunal under Pressure to Wind Up,” Institute for War and Peace Reporting, 22 January 2007, Global Policy Forum, at , viewed 23 November 2007. 28 Although past chief prosecutor Carla del Ponte did start investigations, the rpf government was able to bring the tribunal to a virtual standstill by refusing to cooperate with investigations and impeding the travel of witnesses. The ictr hence retracted and now provides the rpf with impunity. See irin, “Rwanda: Focus on the un Tribunal,” irinnews.org, 3 February, 2004. 29 However, due to international pressure, all but twenty-two executions were stayed, and the death penalty was abolished in 2007. 30 José E. Alvarez, “Crimes of State/Crimes of Hate: Lessons from Rwanda,” Yale Journal of International Law 24 (1999): 365, 400.

23144_GB.book Page 110 Monday, February 9, 2009 11:46 AM

110

Rosemary Nagy

31 See Uvin and Mironko, “Western and Local Approaches to Justice in Rwanda.” 32 For example, Amnesty International, “Appeal to the un Security Council to Ensure That the Mandate of the International Criminal Tribunal for the Rwanda Is Fulfilled,” 12 December 2006, at , viwed 9 February 2007. 33 Ingalaere says that initial proposals to use gacaca emphasized justice and accountability: notions of reconciliation and restorative justice only surfaced in the years that followed. See Bert Ingalaere, “The Gacaca Courts in Rwanda,” in Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences, ed. Luc Huyse and Marc Slater (Stockholm: International Institute for Democracy and Electoral Assistance, 2008), 37–8. 34 Originally, nineteen judges were to preside over gacaca; this number was scaled down due to the frequent inability to meet this requirement. 35 Lars Waldorf, “The Ever-changing Gacaca,” International Justice Tribune, 21 April 2008, 1. 36 There were originally four categories of crime. See Organic Law No. 08/96 of August 30, 1996 on the Organization of Prosecutions for Offences Constituting the Crime of Genocide or Crimes against Humanity Committed since October 1, 1990. Categories 3 and 4 consolidated in 2004. See Organic Law No. 16/2004 of 19/6/2004, on Establishing the Organisation, Competence, and Functioning of Gacaca Courts Charged with Prosecuting and Trying the Perpetrators of the Crime of Genocide and Other Crimes against Humanity, Committed between October 1, 1990 and December 31, 1994, Article 51. 37 Penal Reform International, Information-gathering during the National Phase (London: pri, 2006), 1. 38 See Organic Law No. 16/2004 of 19/6/2004, Articles 54–7, 72–5; Organic Law No. 10/2007 of March 1, 2007. 39 Ingalaere, “The Gacaca Courts in Rwanda,” 39. 40 Ibid., 43. 41 National Service of Gacaca Jurisdictions, “Overview: The Objectives,” at , viewed 9 September 2008. 42 For example, S. Gabisirege and S. Babalola, Perceptions about the Gacaca Law in Rwanda: Evidence from a Multi-method Study (Baltimore: Johns Hopkins University School of Public Health, Center for Communication Programs, 2001), ,

23144_GB.book Page 111 Monday, February 9, 2009 11:46 AM

Traditional Justice and Legal Pluralism in Transitional Context

43 44

45 46 47

48

49 50

51 52 53 54 55 56 57

111

viewed 9 September 2008; Timothy Longman, “Justice at the Grassroots? Gacaca Trials in Rwanda,” in Transitional Justice in the Twenty-first Century, ed. Naomi Roht-Arriaza and Javier Mariezcurrena, 206–28 (New York: Cambridge University Press, 2006). bbc, “Rwanda Return to Violence Warning,” 22 January 2007, at , viewed 9 September 2008. See Susan M. Thomson, “Insidious Power, Artful Practices: A Framework for Analysing Post-genocide Rwanda,” paper presented at cresp conference, Faces of Power, McGill University, Montreal, 2007. Ibid., 3, 17. Buckley-Zistel, “Remembering to Forget,” 134. Ibid., 163. See also Ingalaere, “The Case of Rwanda’s Gacaca Courts,” 49– 50, on how gacaca fails to reveal the truth of the “heart” of the other. This comprises “one of the most problematic aspects” of gacaca from the perspective of locals. Susanne Buckley-Zistel, “‘We are pretending peace’”: Local Memory and the Absence of Social Transformation and Reconciliation in Rwanda,” paper presented at conference, Rwandan Genocide and Transitional Justice: Commemorating the 10th Anniversary of the Genocide, Oxford University, 15 May 2004. Waldorf, “Mass Justice for Mass Atrocity”, 79. Survivors have also disagreed with the government over the public display of victims’ bones and other forms of commemoration. In 2000, the rpf installed a members of its central planning committee as president of ibuka, the main survivors’ organization. “Since then, ibuka has been largely supportive of government policies. During the 2003 parliamentary election campaigns, the rpf accused the Liberal Party of promoting ethnic ‘divisionism’ for it supposed advocacy on behalf of Tutsi genocide survivors” (Waldorf, “Mass Justice for Mass Atrocity,” 37–8). See also Eugenia Zorbas, “Reconciliation in Post-genocide Rwanda,” African Journal of Legal Studies 1 (2004): 29–52 on the intra-ethnic subtleties of the “Tutsification” of state power. Waldorf, “Mass Justice for Mass Atrocity,” 80. Ibid., 82. Arthur Molenaar, Gacaca: Grassroots Justice after the Genocide (Leiden: African Studies Centre, 2005), 96. Waldorf, “Mass Justice for Mass Atrocity”, 65, 69. Ingalaere, “The Case of Rwanda’s Gacaca Courts,” 53. Ibid., 47. National Service of Gacaca Jurisdictions, “Overview: Objectives,” at , viewed 9 March 2008.

23144_GB.book Page 112 Monday, February 9, 2009 11:46 AM

112

Rosemary Nagy

58 For example, Amnesty International, Gacaca: A Question of Justice (2002), at , viewed 9 September 2008; Kenneth Roth and Alison Des Forges, “Justice or Therapy?” Boston Review 27, (2002): 3–4; Human Rights Watch, Struggling to Survive: Barriers to Justice for Rape Victims in Rwanda (2004), at , viewed 9 September 2008. 59 For example, Helena Cobban, “The Legacies of Collective Violence: The Rwandan Genocide and the Limits of Law,” Boston Review 27, 2 (2002), at , viewed 9 September 2008; Alana Erin Tiemessen, “After Arusha: Gacaca Justice in Post-Genocide Rwanda,” African Studies Quarterly 8, 1 (2004): 57–76; Maya Goldstein-Bolocan, “Rwandan Gacaca: An Experiment in Transitional Justice,” Journal of Dispute Resolution (2004): 355; Erin Daly, “Between Punitive and Reconstructive Justice: The Gacaca Courts in Rwanda,” New York University Journal of International Law and Politics 34, 2 (2002): 355–96. 60 Tiemessen, “After Arusha”; Mark A. Drumbl, “Law and Atrocity: Settling Accounts in Rwanda,” Ohio Northern University Law Review 31 (2005): 41; Uvin and Mironko, “Western and Local Approaches to Justice in Rwanda”; Ariel Meyerstein, “Between Law and Culture: Rwanda’s Gacaca and Postcolonial Legality,” Law and Social Inquiry 32, 2 (2007): 467–508. 61 For example, Aneta Wierzynska, “Consolidating Democracy through Transitional Justice: Rwanda’s Gacaca Courts,” New York University Law Review 79 (2004): 1934. See also the critical discussion in Barbara Oomen, “Donor-Driven Justice and Its Discontents: the Case of Rwanda,” Development and Change 36, 5 (2005): 887–910, 903. 62 Anuradha Chakravarty, “Gacaca Courts in Rwanda: Explaining Divisions within the Human Rights Community,” Yale Journal of International Affairs 1, 2 (2006): 132–45, 143. 63 Meyerstein, “Between Law and Culture,” 497. 64 Ibid., 498. 65 Drumbl, “Law and Atrocity,” 58. 66 For example, Goldstein-Bolocan, “Rwandan Gacaca”; Daly, “Between Punitive and Reconstructive Justice.” Both promote South African amnesty for Rwanda. 67 Wilson, “Reconciliation and Revenge in Post-Apartheid South Africa.” 68 I note the influence of Aboriginal justice in this field. However, Zehr’s seminal work also comes out of the Mennonite tradition (Howard Zehr, Changing Lenses: A New Focus on Crime and Justice (Waterloo, on:

23144_GB.book Page 113 Monday, February 9, 2009 11:46 AM

Traditional Justice and Legal Pluralism in Transitional Context

113

Scottsdale Press, 1990)). Restorative justice advocates call for its application to a wide range of crime, including corporate crime, family law, and civil disputes. 69 Much of this discussion draws on Ingalaere, “The Gacaca Courts in Rwanda,” 33–4. Ingalaere claims that gacaca in precolonial times might have been used for murder but that this was rare. I have not found any other reference to this possibility in the literature. 70 See Filip Reyntjens, “Le gacaca ou la justice du gazon au Rwanda,” Politique Africaine Decembre (1990): 31–41. See also Ingalaere, “The Gacaca Courts in Rwanda.” 71 Lars Waldorf, “Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice,” Temple Law Review 79, 1 (2006): 1–87, 26; Ingalaere, “The Gacaca Courts in Rwanda,” 35–6; Peter E. Harrell, Rwanda’s Gamble: Gacaca and a New Model of Transitional Justice (Lincoln, ne: Writers Club Press, 2003), 67–8. 72 Ingalaere, “The Gacaca Courts in Rwanda,” 44. 73 Ibid. 74 Peter Uvin, The Introduction of a Modernized Gacaca for Judging Suspects of Participation in the Genocide and the Massacres of 1994 in Rwanda, discussion paper prepared for the Belgian Secretary of State for Development Cooperation, 2000, at , 7 (viewed 9 September 2008). 75 Peter Uvin, Aiding Violence: The Development Enterprise in Rwanda (West Hartford, ct: Kumarian Press, 1998), chap. 1. 76 See the Government of Rwanda’s “History of a People” at , viewed 19 December 2007. 77 Ingalaere, “The Case of Rwanda’s Gacaca Courts,” 55. 78 See Peter Fitzpatrick and Eve Darian-Smith, “Laws of the Postcolonial: An Insistent Introduction,” in Laws of the Postcolonial, ed. Eve Darian-Smith and Peter Fitzpatrick (Ann Arbour: University of Michigan Press, 2002), 7. 79 Sally Falk Moore, “Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study,” Law and Society Review 7, 4 (1973): 719–46, 721. Note that Moore does not explicitly position herself as a legal pluralist. 80 Sally Falk Moore, “Certainties Undone: Fifty Turbulent Years of Legal Anthropology, 1949–1999,” Royal Anthropology Institute 7 (2001): 95–116, 107. 81 Santos, Toward a New Legal Common Sense, 437. 82 Klaus Gunther, “Legal Pluralism and the Universal Code of Legality: Globalisation as a Problem of Legal Theory,” paper presented at nyu Law

23144_GB.book Page 114 Monday, February 9, 2009 11:46 AM

114

83 84 85 86

87

88

89 90 91 92 93 94 95 96

97 98 99 100 101

102 103

Rosemary Nagy

School, 2003, p. 13. Available at , viewed 1 July 2005. Fitzpatrick and Darian-Smith, “Laws of the Postcolonial,” 2–3, 10. See Chakravarty, “Gacaca Courts in Rwanda”; Meyerstein, “Between Law and Culture.”. Ruti G. Teitel, Transitional Justice (New York: Oxford University Press, 2000), chaps 1 and 7. Waldorf, “Mass Justice for Mass Atrocity,” makes this point. Hence, Teitel’s argument for transitional rule of law does not entirely fit this context. Here I depart from Teitel, who considers international law to be “continuous and enduring” (20). We can quite literally see the messy, ad hoc nature of international law in that the icty/r has had to be fairly creative in constructing rules of evidence, redesigning appeals processes, and so forth. We also see it in the ongoing invention of hybrid tribunals following perceived failures of the international criminal tribunals. Longman, “Justice at the grassroots? Gacaca trials in Rwanda,” 219. He also points to the European Court of Human Rights’ notion of the “margin of appreciation,” which recognizes the possibility of alternative interpretations of human rights. Ibid., 223. Ibid., 219. Meyerstein, “Between law and Culture,” 492. Ibid., 495. Ibid. Ibid., 501. Merry, Human Rights and Gender Violence. Some of this discussion draws from Susan Thomson and Rosemary Nagy, “Power, Justice and Reconciliation in Rwanda,” paper presented at conference, Postgenocide Rwanda: Achievements and Challenges, University of California, Sacramento, 1–2 November 2007. Meyerstein, “Between Law and Culture,” 492. Ibid. Ibid., 486. Ingalaere, “The Case of Rwanda’s Gacaca Courts,” 53. See Thomson and Nagy, “Power, Justice and Reconciliation in Rwanda.” In this paper, we ascribe the tendency towards legalism to the international transitional justice corpus as a whole, not just in the case of Rwanda. Santos, Toward a New Legal Common Sense, chap. 8. See Eugenia Zorbas, “’Keep out of our affairs:’ How the Post-Genocide Government in Rwanda Manages Relations with Donors,” paper

23144_GB.book Page 115 Monday, February 9, 2009 11:46 AM

Traditional Justice and Legal Pluralism in Transitional Context

104 105 106

107

108 109 110

115

presented at Annual International Studies Association Convention, Chicago, 28 February to 3 March, 2007; Reyntjens, “Post-1994 Politics in Rwanda.” Ingalaere, “The Case of Rwanda’s Gacaca Courts,” 56. Ibid. See Nigel Eltringham, Accounting for Horror: Post-Genocide Debates in Rwanda (London, uk: Pluto Press, 2004), 145; Ingalaere, “The Case of Rwanda’s Gacaca Courts,” 56. See George Kagame, “Rwanda: Musoni Says Grenade Attack Not Linked to Genocide Ideology,” The New Times (Kigali), 13 April 2008, at , viewed 24 April 2008. Uvin, Aiding Violence. Ingalaere, “The Case of Rwanda’s Gacaca Courts,” 58. See ibid., 53. The author would like to thank Melissa Williams for comments on an earlier version of this paper.

23144_GB.book Page 116 Monday, February 9, 2009 11:46 AM

7 Truth and the Challenge of Reconciliation in Guatemala ANITA ISAACS

The Guatemalan economic elite and military offer their recipe for how to deal with the country’s wartime past. Sitting in offices in Guatemala City, they advocate forgiving, forgetting, and focusing instead on the pressing challenges of peace: democracy and development. “If we keep looking back there will be no future. We need to wipe the slate clean, and sit down together as Guatemalans to figure out how we can move forward,” one landowner explains.1 A former minister of defence adds, “we need to forgive so that we can work together. Unless you forgive there can be no reconciliation. You’ll always hold a grudge. You need to find that place in your heart where both peace and forgiveness are born.”2 Conversations held an hour and a half away from the capital with widows, orphans, and bereaved mothers strike an altogether different chord. Survivors in Santo Tomas relate atrocities endured or witnessed during the worst period of Guatemala’s thirty-six-year armed internal conflict, the early 1980s – an era they refer to simply as la violencia. Each time one speaks, the others listen – quietly, respectfully, and so attentively that it seems as if stories told dozens of times before are being related for the first time. Every time we meet, Maria describes the events of one July day in 1982. “It was three o’clock in the afternoon, when they came to take him away. He was just getting ready to eat. My daughter called him, ‘Daddy it’s time to eat.’ ‘Go ahead, my child, I am just going to wash my hands.’ When they knocked on the door, they said they just wanted to talk to my husband. He didn’t get a chance to eat, he didn’t have his dinner. It was three in the afternoon, he didn’t get to eat.” Felipa responds to whatever I ask by recalling her son’s last words as he was taken from his bed by the army in the middle of the night in April

23144_GB.book Page 117 Monday, February 9, 2009 11:46 AM

Truth and the Challenge of Reconciliation in Guatemala

117

1981: “‘Mami this is the last time that I will speak to you, the last time that I will kiss you, look at me one last time because I will never see you again, because they are going to kill me.’” And Carmen wants to make sure we all know that she continues to abide by her husband’s last wishes, uttered as “the soldiers grabbed him. They kicked him and that’s how he said goodbye to me … the only thing he asked was that no other man take his place, because ‘he won’t love my children.’”3 Forgetting and forgiving are not choices that survivors, whether in Santo Tomas or in other war-torn communities scattered throughout Guatemala’s western highlands, feel free to make. What happened to Maria “feels like a thorn inside you, it always hurts and you can never remove it … that same thorn it makes you always remember everything.” Another describes the feeling a little differently: “I just can’t, I can’t forget anything that happened, it’s in my eyes, it’s in my head, it’s in my ears. It’s awful, but it’s also the only way I can remember him.”4 And pointing to her heart, a third woman maintains, “There is no forgiveness here. What are they thinking about? I just don’t get it. How can I forgive an army that assassinated us, a state that massacred and razed our communities? They will first have to consider what they did.”5 Transitional justice scholars mostly agree that it is neither feasible nor desirable to do what those most implicated in, and sometimes most divorced from, wartime atrocities would wish. The slate cannot be wiped clean, and forgiveness, however welcome, must not be demanded. At the same time, most also caution against too much memory and too much legal accountability, concerned lest either preclude the reconciliation deemed necessary to sustain peace and deepen democracy. Over the past two decades some two dozen countries emerging from civil war and repressive dictatorship have experimented with investigatory, or truth, commissions as a mechanism to reckon with past wrongs. By striking the right kind of balance between historical memory and accountability, advocates claim that truth fosters political and social reconciliation or reconstruction. Truth initiatives are often also championed because of their therapeutic benefits: they permit survivors to come to terms with past traumas in ways that could be described as internally conciliatory. Guatemala figures among those countries that opted for the investigatory approach as a means of confronting mass atrocities committed during the country’s armed conflict. The country witnessed two

23144_GB.book Page 118 Monday, February 9, 2009 11:46 AM

118

Anita Isaacs

truth commission efforts. One, the Commission for Historical Clarification (Comisión para el Esclarecimiento Histórico [ceh]), was officially un-sponsored and peace-accord mandated. The other, a precursor to the ceh, was undertaken by the Guatemalan Archdiocese. The Archdiocesan project for the Recovery of Historical Memory (Recuperación de la Memoria Histórica [remhi]) released Guatemala Never Again in April 1998. Drawing in part on research conducted for remhi, the ceh released its twelve-volume Memory of Silence almost a year later, in February 1999.6 Both projects shared the objective of uncovering the truth about the conflict in order to prevent history from repeating itself. Although their emphases were different, they also both hoped that their work would foster political, social, and individual reconstruction. Largely a reflection of the religious inspiration behind remhi, the Archdiocesan project was explicitly dedicated to the task of promoting reconciliation at the individual and communal levels. Though more focused on producing a comprehensive social scientific study on the origins, causes, and consequences of Guatemala’s conflict, ceh architects nonetheless also hoped that their findings would inspire reconciliation.7 The two reports reached similar conclusions, especially when it came to apportioning blame for the estimated 200,000 deaths and disappearances. According to the ceh, the state and its security forces were responsible for 93 percent of the violations committed and for 626 massacres; the guerrillas for 3 percent and for thirtytwo mass killings. Both commissions also took up the issue of genocide. remhi raised its spectre, while the ceh found the army guilty of genocide against its Maya population based on its analysis of military strategy in four regions of the country. The political events that followed the publication of the two truth commission reports suggest that their impact was more polarizing than conciliatory. The response to remhi was swift and unequivocal. Two days after presiding over the release of Guatemala: Never Again, Bishop Juan Gerardi was brutally murdered. If more subtle, the political polarization triggered by the ceh was no less significant. Several thousand Guatemalans lined the streets and crowded into the stadium to greet the release of a report that wildly surpassed popular expectations of an official whitewash. By contrast, Memory of Silence was coolly received by the government in office at the time. The president did not personally accept the report, its historical veracity was

23144_GB.book Page 119 Monday, February 9, 2009 11:46 AM

Truth and the Challenge of Reconciliation in Guatemala

119

immediately challenged, and the administration played down the need to take specific steps to implement ceh recommendations. In national elections held just nine months later, voters elected the Guatemalan Republican Front (Frente Republicano Guatemalteco [frg]), a party founded and led by General Efrain Rios Montt, a central architect of the policy described as genocidal in the ceh report. Not surprisingly perhaps, the frg’s tenure was marked by a resurgence of violence reminiscent of wartime Guatemala. Forensic anthropologists, along with human rights and indigenous activists, were its principal targets – in almost every case individuals and groups who sought either to uncover more truth or to bring perpetrators to justice. And former civil defence patrollers have reorganized, mobilizing to pressure the frg to fulfill its electoral promise of compensation for wartime service to the state. Social reconciliation has been equally elusive. Rural Guatemala remains as divided as ever. Those responsible for wartime abuses, whether newly mobilized civil defence patrollers, retired military commissioners, or members of disbanded guerilla forces, often live next door to victim survivors of these atrocities. It is not just that the old power structures remain but that fear of retribution for past acts of violence prompts perpetrators to harass and threaten neighbours who persist in searching for the remains of disappeared and murdered family members. This chapter explores the contested claim that truth commissions permit internal, individual reconciliation, focusing on the capacity of such initiatives to help survivors overcome fear and silence, to gain understanding, and to retrieve dignity. The contributions of truth to reconciliation are significant and undeniable. Yet the intention here is not to revisit these but, rather, to draw upon the experience of Guatemalan survivors to highlight the therapeutic limitations of truth, to underscore the dilemmas inherent in relying too heavily on truth commissions as the (only) means to confront a brutal wartime past, and to reflect on the complex nature of the relationship between individual healing and social and political reconciliation, whether at the communal level or the national level.

t ru t h , t r au m a , a n d h e a l i ng Survivors of mass violence experience a range of symptoms, including intense fear and hyper vigilance; vivid reliving of experiences;

23144_GB.book Page 120 Monday, February 9, 2009 11:46 AM

120

Anita Isaacs

nightmares or sleeplessness; feelings of hopelessness, helplessness, and vulnerability; as well as withdrawal, depression, and substance abuse.8 Although these symptoms are often associated with posttraumatic stress disorder, most analysts who work with this population tend to describe victim-survivors as suffering from extreme traumatic stress.9 They pointedly note that the trauma itself often persists, especially when survivors continue to live in communities where violence or its threat remains real and acute.10 Furthermore, in societies where murder and disappearances were routine and continue to occur today, it is society that is “disordered,” and the individual response – whether silence, mistrust, fear, and/or dissociation – is eminently sensible. This point is more than semantic and the distinction more than diagnostic. It also has implications for effective treatment. While individual suffering must be addressed, an effective response must also alter the prevailing social and political order. Those who champion truth commissions stress the considerable psychic benefit they provide survivors of mass violence. They offer victims a platform from which to tell their story, in their own words. They are at the centre of a process in which they are listened to, heard, and affirmed. As a result, they break a “conspiracy of silence” and cut through a web of lies, denials, and deceit. In recovering their voice, survivors also overcome their sense of “isolation, loneliness and mistrust,” and they “defeat their fear.”11 They also retrieve their human dignity. The recovery of speech permits victims to see themselves either anew or for the first time as individuals with human rights and agency. While truth commissions restore the survivors’ right to speak, survivors’ testimonials come to constitute a historical record designed to shape their country’s political future in ways that promise both to prevent a recurrence of mass violence and to repair harms suffered.12 The truth-finding dimension that accompanies and results from the telling has also been portrayed as empowering, dignifying, and healing. It is seen as facilitating a process of “cognitive recovery.” By coming to understand how and why things happened the way they did, traumatized survivors are relieved of the confusion and often profound sense of guilt they feel. Survivors often believe that, had they somehow acted differently, their abuse could have been prevented. Because truth commissions help them develop a clearer picture of what transpired and how, they can begin to direct blame away from themselves and onto those who truly bear responsibility.

23144_GB.book Page 121 Monday, February 9, 2009 11:46 AM

Truth and the Challenge of Reconciliation in Guatemala

121

The perspective gained is empowering, “having been helpless, doesn’t mean you are a helpless person.”13 Finally, scholarship on truth commissions emphasizes how they simultaneously foster political and social reconciliation. It is not just the uncovering of truth that affords a mechanism to repair harms: commission findings also lay the foundation for moral, material, and institutional reparations. Justified and permitted by truth, reparations do as much as if not more than the truth process itself to restore both human dignity and human rights to victims of violence. Reparations can be symbolic, consisting, for instance, in official acknowledgment and apologies for wrongs committed or in the erection of memorials to commemorate and remember those who suffered. They may also entail material compensation and medical assistance for survivors, and they might involve programs of reform, designed to alter the prevailing political, social, and economic power structures.14

t h e g u at e m a l a e x p e r i e n c e Scholars and activists who worked in Guatemala’s western highlands during the years of armed conflict depict everyday life in terms that evoke a routinization of terror and that portray survivors as suffering from extreme traumatic stress.15 They also confirm how manifestations of trauma – silence, isolation, and withdrawal – provided a means of self-protection against possible harm. “If, for instance, you saw something, you would say you didn’t, if they burned a neighbour’s house, you would say, how could I know who did it, because I couldn’t see, I couldn’t leave my house?” one catechist remarks. He adds, “It was better to just say nothing because you didn’t know who you were talking to, you didn’t know was with who, they could be with the army, or sympathize with the guerrillas or maybe neither, and so, with time, silence became transformed into a survival mechanism for communities. It actually gave strength to individuals, it became their feeling.”16 That same silence continued to constitute a barrier to communication in the years following the signing of peace accords and as I began to develop ties to rural communities. Many victims remained too frightened and too mistrustful to talk about what happened, particularly during my initial visits to a community. Some gained confidence over time, while others never spoke. Speechlessness was

23144_GB.book Page 122 Monday, February 9, 2009 11:46 AM

122

Anita Isaacs

explained by neighbours in terms that recalled its use during the conflict: “you never know what could happen if you tell, the problems could return.” Survivors who related their stories did so in ways that conveyed intense sadness, isolation, and depression. They spoke, often through tears, of the enormous sadness they felt, and they complained of its physical symptoms – frayed nerves, headaches, eye aches, and heartaches. Felipa, for instance, told me: “My head hurts, my eyes too, because of so much crying, because of sadness. My heart hurts because of my sadness, because they killed him, my son, that’s why we are so sad.” Carmen remembered what it was like raising her children on her own, after her husband’s abduction: “it was so hard, you didn’t even want to fix food, or even know whether there was food to eat, you forgot about eating, and the children, you didn’t even know or think about whether they ate.” And Maria observed: “I am so sad, it happened so long ago, but my head still hurts, my eyes aren’t right, my feelings aren’t right, everything bothers me … I have cried for so many years that I can feel the rains before they come. But there is no one to help us, no one comes, no one comes to ask, ‘how are you in Santo Tomas?’” Survivors also expressed their helplessness – even powerlessness – along with feelings of resignation, confusion, and anger. A saber is a Guatemalan expression, borrowed from the K’iche Kin wil na. There is a touch of irony to it as it is an expression loosely and alternatively translated as “who knows?” or “I’ll believe it when I see it.” A saber, along with por qué? are terms that punctuated my conversations with survivors. Sometimes, when recalling a chain of events leading up to the disappearances and deaths of relatives, they would pause mid-sentence to ask: “por qué?” On other occasions they might reach a point when there was no more they would tell. Voices choking, they would bow their head and breathe in deeply. Half-smiling through tears, they might eventually look up, sigh, and deliver a chilling “a saber.”

breaking the silence By providing an initial opportunity for Guatemalan victims to overcome their fear and mistrust by talking about what happened, both remhi and the ceh claimed to contribute to psychological healing. “In the short term,” one of remhi’s architects explained, “we

23144_GB.book Page 123 Monday, February 9, 2009 11:46 AM

Truth and the Challenge of Reconciliation in Guatemala

123

succeeded in breaking the silence. This is a traumatized society, because it has kept so many things inside, it has not been able to express itself openly. So, you could say that recovering the right of speech is the first act of justice for thousands of people … There is so much trauma, so much fear. A valve needed to be opened so that people would speak. It was liberating.”17 The ceh collected roughly eight thousand testimonies, remhi some 5,500. To the extent that these numbers are indicative, they confirm the desire so many people felt to testify before a commission. Witnesses described the long lines that formed outside ceh offices in many parts of the country as victims waited for hours on end for a chance to tell their story. Several who gave their testimonies highlight how important the experience was, echoing what survivors elsewhere expressed after appearing before their country’s truth commissions. If South Africans spoke of “coughing it out,”18 Guatemalans refer to the “need to get out what was stuck inside.” Having noted this need, one K’iche woman also observed: “It was a relief to tell, because what I was telling was not a lie, but what I had lived. It was my pain, and it made me feel better.”19 Other Guatemalan survivors, however, felt considerably less relief, contradicting the Truth and Reconciliation Commission (trc) claim that “revealing is healing.”20 One widow explained, “It made me remember everything, and even though I was able to get it all out at that moment, it was only for a moment, then I had a terrible headache afterwards because I was thinking about it again.” Her brother was more adamant: “It was just horrible to have to tell about what happened years ago.”21 And many more Guatemalans never put their truth commission to the therapeutic test. They either decided against testifying or were denied the opportunity to do so. Who testifies and what they tell Significantly, many who gave testimony to either truth commission, but especially to the ceh, were not telling their story for the first time. The ceh collaborated with ngos, principally survivor groups and indigenous rights organizations with ties to rural communities hard hit by the conflict. That partnership facilitated the collection of testimonies, especially given pressing time and budget constraints. Local ngo representatives mobilized and briefed survivors

23144_GB.book Page 124 Monday, February 9, 2009 11:46 AM

124

Anita Isaacs

in advance of the ceh’s arrival in town. Those most responsive to appeals to testify thus tended to have some connection to these organizations. As a result, they were often survivors who had a prior tradition of coming together and talking – like the women of Santo Tomas. Struck by their attentive listening to each other’s stories, on one occasion I asked the women if they had heard a story that I was being told for the first time. “Ah no,” they answered immediately, a little surprised by my question, “we know each others’ stories, we already know them all.” As in the case of Santo Tomas, therefore, those who testified had already often broken their silence and had developed sufficient trust in a few, select neighbours to tell what had happened to them. They were frequently also activists who struggled to conquer their fears earlier, when deciding to organize. Many of these seasoned veterans were quite clear that they were testifying to help make sure that “this not happen again to our children” and that the “rest of Guatemala and the world know what happened here.” Indeed, they harboured little if any hope of relieving their pain but were, instead, acting, despite their suffering, out of a sense of moral responsibility. Those who told, moreover, rarely told everything. A few agreed with a woman who recalled: “They gave me all the time I wanted, they told me you are free to tell everything, if you want to cry, if you want to say everything that happened, go ahead. They gave me that freedom, that space, and I told them everything.” More typically, however, witnesses noted how difficult it was to relate their stories. In part the emotional pain of the memories themselves interfered, in part it was the sheer difficulty of “blurting it all out when you just have a moment.” Asked to recall traumatic memories, Guatemalan survivors also speak of remembering in fragments and of the frustration they feel when, long after the interview has ended, they recall more that they would have wanted to say.22 Still others hinted at problems with the structure of the interview. Liliana, for instance, observed: “What I lived through was not just for one month, or two months but for years, but we had to speak in groups, and there wasn’t much time, barely an hour, so there were things you didn’t tell and others you organized, you made a list in your head of the things that needed to be told first.” Others came ready to tell but describe being rendered speechless once inside, when faced with ladino or foreign testimony takers who did not speak a Mayan language. Estela, for instance, explained:

23144_GB.book Page 125 Monday, February 9, 2009 11:46 AM

Truth and the Challenge of Reconciliation in Guatemala

125

“When I got there I really doubted a lot. They told me the people’s names, but I didn’t know them, I didn’t know where they were from, they weren’t our people, those who attended to us. Maybe if they had been, then, maybe I would have had more trust.” You know, she added, “it’s just not the same thing to tell in your own words, in your own language.” Estela also observed: “The person who interviewed me was a man, and so there were things you didn’t tell.” What you told thus also depended on the particular abuses you had endured. Significantly, Guatemala’s truth commissions gathered relatively little evidence of sexual violations, despite the frequency of their occurrence. Witnesses to often public acts of rape did speak about them, but the actual victims of such abuse hardly ever did. In my repeated conversations with hundreds of female survivors, only a handful of women mentioned being raped. On several occasions, women got to the point of telling, then abruptly interrupted themselves. Mostly though, victims of sexual abuse were so ashamed of what had happened to them that they only spoke about it in whispers and, even then, only to older Mayan women. Estela thus did not describe having been violated by a young soldier, and Liliana left having been gang raped out of her story. Those who don’t tell and why It is important to note that many victims were never given the opportunity to tell. However impressive a number, eight thousand testimonies represent but a fraction of survivors of a conflict that claimed an estimated 200,000 lives. Limited time and resources prevented the collection of more testimonies, especially in the case of the ceh, which barely had eight months to conduct research in which individual stories figured as part of a larger investigatory project. Nonetheless, some were also given less opportunity to tell than others. Survivors in many communities that witnessed brutal atrocities never got a chance to speak to a truth commission. Either they had no contact with a ceh partner ngo or they were bypassed, tainted by a wartime association with the army.23 San Fernando, a town nestled in the hills above Lake Atitlan, is one such case. Occupied by the army in retaliation for a guerrilla ambush of a military patrol on the road leading down into town, the citizens of San Fernando endured years of forced military recruitment, heavy service in

23144_GB.book Page 126 Monday, February 9, 2009 11:46 AM

126

Anita Isaacs

self defence patrols, and the disappearances and deaths of family members. Yet viewed as perpetrators, its survivors were not sought out by the ceh. Testifying would thus have meant travelling down a rugged hillside and across the lake to Santiago de Atitlan, a town that was visited by the ceh and that has acquired fame for its heroic resistance to military repression. This was too arduous and expensive a journey for the elderly, impoverished victim-survivors of San Fernando. As a result, however, Martin kept it all “stuck inside” until November 2004, when he finally took advantage of my coming to town to tell both his father and me what had happened during his 1982 abduction and abuse by military recruiters.24 His grandmother never told about the disappearance of her son, whose return the frail woman still anticipates some twenty-three years later.25 Some survivors who could have given testimony deliberately chose not to. Even for some members of the National Widows Association it was too painful to talk about what happened – to anyone. As one woman put it, “It hurts too much, I am sick, I am always so tense, all this remembering, it just makes you sick.” Others felt they hadn’t earned the right to tell: “I just lost my father, I can hardly remember him, while these women have lost husbands and sons.” Most often, however, fear is the inhibiting factor. That silencing fear surfaced in meetings with survivors in Santo Tomas. One Sunday afternoon, after Maria and Carmen told of their husbands’ disappearances and Felipa of her son’s, another widow joined the conversation. Rather than tell her personal story, she launched into a description of how the former mayor collaborated with the army: “He would walk around with the soldiers, showing houses, pointing out from which house so and so was to be taken …” Suddenly, she switched from a halting Spanish into her native Kak’chiquel. A heated conversation in Kak’chiquel ensued, until, eventually, a widow interceded: “You see she still crosses his path on the way to church every Sunday. She is also afraid to have said what she said because it could get out, people could say that we told someone from the United States about the mayor. People are afraid to talk because we might not all have the same way of thinking and the same heart, so things could get out.” While she continued to attend our meetings, that woman never spoke up again. If, among women who belonged to the same organization and met frequently to share stories, such fear persisted five years after the signing of peace accords, it is hardly surprising that many survivors resisted speaking to remhi or to the ceh several years earlier. remhi

23144_GB.book Page 127 Monday, February 9, 2009 11:46 AM

Truth and the Challenge of Reconciliation in Guatemala

127

began its work before peace became official, the ceh soon after. Peace may have been in the air, but the political climate on the ground was much as before – one of intimidation, silence, and fear. The former mayor continued to live in Santo Tomas. His presence alone served as a sharp reminder of what had happened and raised the spectre of renewed violence should wartime violations be exposed. The presence of local activists, catechists, and outsiders as truth commission partners was not necessarily reassuring. ngo collaboration in the case of the ceh, and that of local parish members in the case of remhi, may have inspired trust among survivors who identified with one of these groups. But for those within these same communities who did not, it had the opposite effect. Some feared a return to violence. “The human rights people come and ask, they leave, we remain. They don’t stay around to monitor things, so people don’t dare tell,” one orphan explained. Others were more openly hostile and suspicious of the motives behind the commission’s work. According to a victims assocation representative: “They would tell us, ‘It’s you again?’ when they saw us coming. Then they would say, ‘Isn’t it enough that you already came and screwed us over once’ and ‘where are you now? Where are your commanders now? Here you come to get information out of us … You just want to take advantage of our suffering.’”

k n ow i n g Truth initiatives are deemed to assist healing not just by the telling opportunities they provide but also by what they reveal in turn. Knowledge and understanding typically contribute to emotional repair by relieving survivors of the confusion and guilt they may feel. Yet the Guatemalan case suggests that the therapeutic benefits of “truth finding” are not necessarily any more clear cut than are those fostered by “truth telling.” It also asks whether truth commissions are the only, or the most appropriate, vehicle with which to achieve the peace of mind assumed to accompany knowing.26 Survivor guilt In Guatemala, as in other post-civil war settings, survivors seek to understand more than the origins, nature, dynamic, and consequences of the conflict. Actually, they may attach the greatest importance to understanding their part in the violence. Those who

23144_GB.book Page 128 Monday, February 9, 2009 11:46 AM

128

Anita Isaacs

survive often feel guilty that they managed to escape death and that they did not better protect murdered relatives and friends. That guilt is often amplified by the ways in which local conflicts became absorbed into the broader political struggle. For reasons that Guatemala’s survivors tend to describe as envidia, or jealousy, disputes over girlfriends, chickens, or land regularly took a violent turn. It became convenient to resolve those conflicts by enlisting the assistance of a soldier or a guerrilla fighter. By redefining the person with whom one was having a quarrel as a political adversary one could elicit his or her elimination. The lasting guilt about having so acted is extremely difficult to bear. Francisco was seven months old when his father was kidnapped, tortured, and murdered by the army, along with nine others. They were buried in a common ditch, which was dug by the victims themselves before they were sprayed with bullets. His mother was shot in the back while fleeing and died of her wounds some three months later. The orphaned Francisco was raised by his maternal grandmother and his uncles, half brothers of his father’s who showed him the hillside spot where his father lay buried. Intent on reburying his father in a proper grave, Francisco eventually undertook a laborious procedure to exhume his father’s remains. Several months later, Francisco’s eldest uncle became gravely ill, lapsing in and out of a coma for several days but insisting on his need to speak with Francisco. The now twenty-one-year-old Francisco went to his uncle’s bedside, where he received his confession. Jealous of the better land Francisco’s grandfather had left to Francisco’s, the uncles betrayed their half brother. When the military came to town to round up the guerrillas, the real guerrillas in town – Francisco’s uncles – instead denounced Francisco’s father and several others who had no connection to the insurgency. The dying uncle asked for forgiveness, which Francisco granted him. Relieved of his sins – or his guilt – the uncle died on the spot, with Francisco still standing by his side. Survivors are troubled by guilt in another respect. They have been told that those who perished were “bad” – meaning they aligned themselves with the wrong side, typically the guerrillas but also the army. For their own peace of mind, however, it is important for these survivors to know that that their relatives were decent and innocent. Antonia, a Santo Tomas widow, described her husband’s abduction one night in November 1981. He was never seen again. She cried for a moment at his memory but then brightened: “You

23144_GB.book Page 129 Monday, February 9, 2009 11:46 AM

Truth and the Challenge of Reconciliation in Guatemala

129

know, just this past week my son said ‘I met an old man in la Libertad who asked me who I was.’ I answered that ‘I am from a family in Santo Tomas.’ ‘Ay, but who is your father?’ he asked. ‘I told him who my father is.’ ‘Ah really! he is a very good man,’ that old man told me. ‘And Mami,’ my son said, ‘that makes me feel really good, that he told me that my father is very good.’ And, I, well, I too also feel so much more at peace now.” The Challenge of Dissemination Both truth commissions endeavoured to provide knowledge conducive to alleviating survivor guilt. While the ceh sought to do this indirectly, through its interpretation of the causes, consequences, and trajectory of the conflict, remhi assumed this as a central objective and fundamental achievement of its work. As remhi’s coordinator explained, the project helped survivors understand that “they were merely actors in a play, assigned roles, and acting under the direction of larger forces that they did not control.” Nevertheless, some of the same constraints that limited the effectiveness of truth telling also precluded either commission from providing healing knowledge. For starters, neither the ceh nor remhi solicited the numbers of testimonials that could have facilitated widespread cognitive recovery. Yet arguably, because the same story of envidia was played out on so many stages throughout the country, subsequent outreach and dissemination projects might have enabled the truth commissions to transmit understanding even to survivors whose stories are not featured in the reports. The political polarization ceh findings generated virtually guaranteed that dissemination efforts stalled immediately. Report conclusions and recommendations have now been translated into five Mayan languages, the sum total of ceh outreach work to date. But even in translation few survivors will have access to Memory of Silence. While commended by scholars, its social scientific rigour militates against its accessibility to most Guatemalans. Even literate survivors would find it extremely difficult to follow the dense argument laid out in its pages. remhi’s follow-up phase was postponed following the murder of Bishop Gerardi, when Church efforts became focused instead on bringing his assassins to justice. Recently, however, Church volunteers have embarked on pilot dissemination efforts. They are taking

23144_GB.book Page 130 Monday, February 9, 2009 11:46 AM

130

Anita Isaacs

remhi back to the field, convening survivors to participate in discussions about the report, with the explicit aim of using “truth” to foster reconciliation, both individual and communal. Emboldened by the passage of time and by seeing their neighbours’ stories in print, victims and perpetrators in a number of villages appear increasingly willing to participate in these initiatives. Not only are communities tentatively engaging in a collective revisiting of la violencia, but individual survivors are also asking to have their voices added to what could eventually become an expanded written document.27 Alternative Mechanisms It is not obvious that a formal, or formalistic, truth commission is required to secure the kind of understanding needed to relieve guilt or to clear up survivor confusion. Alternative mechanisms of truth telling may provide as much knowledge and relief as might an official, or quasi-official, commission. For starters, neither Francisco’s dying uncle nor Antonia found internal peace through participation in remhi; rather, it was a deathbed confession and a chance encounter on the road from Santo Tomas to La Libertad that provided the release these individuals sought. Additionally, growing parental interest in having children know and understand what happened has prompted remhi volunteers to initiate a new truth-telling methodology. Local animators are training parents to give and to receive testimony, transforming homes into mini-truth commission sites, where elder relatives talk openly about the past, relating their stories to an extended family and responding to specific questions children might have.28 There are other mechanisms still through which survivors address their need to tell of wartime experiences. Several communities have engaged in unofficial truth-telling exercises that adopt the testimonial method, while others have resorted to artistic representations of la violencia through theatre, painting, and song. La Merced is a former sugar estate about an hour outside of the colonial capital, Antigua, now settled by return refugees from distant northwestern Huehuetenango who spent almost fourteen years in exile in Chiapas, Mexico. While few have heard of either the ceh or remhi, they are committed to recording their experience as survivors of a massacre and as refugees. “It is important for our children,” Adela

23144_GB.book Page 131 Monday, February 9, 2009 11:46 AM

Truth and the Challenge of Reconciliation in Guatemala

131

explains, “because you can tell and tell but one day you die and then you can no longer go on telling.” Adela has contributed to recording her story of survival, flight, exile, and return. She has given her testimony to a Spanish ngo and participated alongside fellow refugees in providing the children of La Merced with a detailed description of her community’s wartime experiences. The children, most of whom were born in exile, have given expression to these stories, painting a series of scenes in the form of a bright mural that graces the entire wall of a communal building located in the centre of La Merced. Arguably, however, exhumations are the most critically significant forms of truth telling and truth finding. As one forensic anthropologist explains: Within the community itself there has often been great silence. Until the very day of the exhumation, or the day of the reburial, many people have not taken the time to talk amongst themselves about what happened at that time. Never before had there been a space to talk about what happened. So simply, someone killed you? You are a guerrilla, you are bad. Until such time as you join the army, you are singled out. These differences, or this indifference gets shattered when we can say: “Ah, it’s true, look what really happened; they killed your husband, the woman is not lying, it is not that she is making herself into a victim.” Basically the truth gets known thanks to irrefutable material evidence. The discovery of victims’ remains thus provides survivors with a tangible truth – one that they actively seek and that others can no longer deny. As such, it is arguable that an exhumation can sever the conspiracy of silence and lies more effectively than can eight thousand testimonials.29 Exhumations also permit ritual forms of remembrance, which afford survivors emotional relief. The need to provide one’s family members with a proper burial is integral to Mayan culture. Many survivors are confused about where disappeared relatives are and feel guilty for not having found them and reburied their remains. Those who manage to successfully exhume their relatives often speak of being at peace with the knowledge that family members are now resting in a proper cemetery where they can visit them,

23144_GB.book Page 132 Monday, February 9, 2009 11:46 AM

132

Anita Isaacs

light candles and incense, and bring them flowers. As one woman expressed it, “Thank God they are doing these exhumations. We want to find our relatives for one last time, we want to bury our – well, even just the bones – no one regrets the moment when we find our families.” By contrast, those whose relatives remain disappeared suffer, frantically searching and unable to mourn their loss.30 As one woman implored, “Where is my son? Is he somewhere thrown in the mud, tossed in a ditch, lying up in the mountain? Maybe he got eaten by animals, maybe they burned him, maybe that’s why I can’t reach him in my dreams? Or maybe they put him so his mouth faces down and I can’t speak to him in my dreams? I can’t bear this. He was my only son, all I ask is to find some remains.” Another described similar feelings on the eve of an exhumation in his village. “Others will find, and I can’t retrieve anything. The only thing I think about is that I too would like to see my father’s skeleton. It hurts me so much. I have a brother-in-law who tells me that he thinks that those people who bring flowers to the cemetery are suffering, sitting there, because of the heat. But I still think they are bringing a symbol, a flower. And I don’t even know where they killed him. That’s hard. I always carry it within me. It hurts a lot. How one would wish to stop this hurt.”31 Finally, knowledge does not always bring relief. Francisco’s uncle’s confession may have assuaged the guilt provoked by his betrayal, permitting him to die in peace. But the knowledge he passed on became his nephew’s torment. The affection Francisco felt for those who raised him turned into hatred and a desire for revenge so intense that he felt compelled to leave his village and even his country, in the process abandoning his own young family: “If I don’t, I might take justice into my own hands, and then, well, it would never end.” What Francisco’s uncle did is neither unique nor even extreme; rather, it is characteristic of a conflict in which survivors were, as we have noted, performing roles assigned by forces that escaped their control.” All the same, it complicates thinking about the implications of relieving survivor guilt through understanding. At a minimum it underscores how emotional distress can be passed from one survivor to another through knowledge. Significantly, when asked whether his uncle might have done something to lessen the impact of his confession, Francisco responds, “Yes, he could have not told me.”

23144_GB.book Page 133 Monday, February 9, 2009 11:46 AM

Truth and the Challenge of Reconciliation in Guatemala

133

r e s to r i n g d i g n i t y At the moment when they came, they didn’t feel anything, they acted as if they were killing a stray dog in the street, that’s what they did to people. I didn’t know before, but then when they exhumed them, I saw how they killed them. Their fingers were missing, their wrists were cut off, their arms were tied behind their backs, they had been hacked by machetes, they had bullet holes through their foreheads.32 Guatemalan survivors describe scenes like these repeatedly. They also talk of forced military and guerrilla recruitment and tell of guerrillas fleeing hamlets in the wake of an army advance, abandoning villagers to marauding soldiers who engage in an orgy of destruction. They taunt, torture, maim, kidnap and kill, destroy crops and livestock, torch houses, and raze entire communities. The material and human losses are deeply traumatizing for survivors of massacres, as is the degrading manner in which the violence is inflicted. The challenge of restoring human dignity is thus critical, both to those who were direct witnesses of the violence as well as to succeeding generations who were too young to remember but who learn through the exhumations they observe or, like the children of La Merced, through the stories told to them. Truth Commissions as Dignifying Spaces Truth commission sceptics stress the limited benefit of a single therapeutic intervention. People appear before a truth commission only once, whereas the “talking cure” requires sustained treatment of trauma survivors over a period of months, usually years. Not surprisingly, those who testified spoke of the sadness and physical symptoms, often headaches, they felt afterwards. Speaking about what happened just once can be less cathartic than retraumatizing: without follow-up treatment, wounds continue to fester. Psychologists and others who conduct fieldwork with survivors of violence also attest to the need survivors have to keep on telling. Survivors say: “I have kept it inside for so long. But now that I am speaking, I am never going to stop.”33 Maria, Felipa, Carmen, and Antonia anticipated each of my visits to Santo Tomas, which they took as an opportunity to narrate their story again. They usually

23144_GB.book Page 134 Monday, February 9, 2009 11:46 AM

134

Anita Isaacs

told it with the same close attention to dates and detail, and they spoke with the same sense of urgency and of despair. And when we said goodbye they always asked whether I would return to Santo Tomas on another Sunday afternoon, as had become our custom. A social worker in her native Quiche also describes the process through which her organization, Utz’Kaslemal, encourages deeply traumatized survivors to talk: You do this on the basis of culture. We use colours and the four cardinal points as an entry point. They need to develop confidence in order to talk about their trauma, their stories – actually, just to talk about how they feel. They talk if they want, we just want to help them retrieve their self-esteem. Sometimes when we come to do workshops, they go into shock, they don’t speak, they cry, and that tells us they need more time, more confidence, a lot – a whole lot of respect and a great deal of affection to show them that they are not alone. We don’t force them to talk, but gradually, over time, they mostly do. I remember one case of a woman who never participated. Once we invited her to speak, and she said, “Well, maybe another time.” You know, I just went back to her community and I realized that now she participates more than anyone else.34 Utz’Kaslemal’s culturally sensitive and patient approach stands in stark contrast to the environment truth commissions provide. The limitations to telling only once are compounded by the harried atmosphere in which stories get told and by the perceived lack of empathy on the part of interviewers. As Estela reminds us, testimony takers were not “our people”; rather, they were often ladino or foreign, often male, and typically Spanish speakers to whom the people had only just been introduced. In addition, few were professional therapists trained either to listen or to handle the impact of hearing the testimonies.35 A ceh statement taker volunteered: “We had anthropologists, local members of the community, Mayans. This helped, but there is a way of receiving testimonies that requires sensibility. In many cases we did this superficially and even offensively. You might get up, because you were in a hurry, while the person was talking – while he was trying to reconstruct and was suffering. At issue was our capacity to listen, to demonstrate empathy.”36 A survivor who gave testimony recalled asking to clarify a

23144_GB.book Page 135 Monday, February 9, 2009 11:46 AM

Truth and the Challenge of Reconciliation in Guatemala

135

detail that he neglected to mention earlier on. Apparently, the statement taker responded by telling him not to bother: they were pressed for time. At another stage, overcome by emotion, the same witness broke down sobbing. The statement taker fidgeted nervously, seemingly moved, then reacted by saying: “Don’t worry, there is no need to cry, I have heard many worse stories. Let’s just keep going.”37 A Mayan widow who translated from K’iche into Spanish for the ceh struggled to articulate what she understood to be a key impediment to the establishment of a relationship of trust between statement giver and taker. Unable to find the right words, she resorted to an anecdote: “There were three of us in the room, two foreign ceh workers and me, there to collect the testimonies. But no one would speak. At one point the victims told me in K’iche, ‘If those other women leave the room, we’ll tell you.’ I realized that they didn’t feel right with them, it wasn’t comfortable – they were wearing jeans and lots of makeup, their hair was all fixed up. They just couldn’t speak to these women, they couldn’t trust them, they didn’t seem as though they cared.” Survivor mistrust seems to have been further exacerbated, therefore, by the ways in which the ceh – if only through its composition – reproduced a racism deeply embedded in Guatemalan society, which had historically denied Guatemala’s Mayans their dignity and which, as Mayans see it, was given its most recent expression in the genocidal conflict. Truth and Repair Dignification requires more than a space in which to narrate your story. What happens as a result of truth telling and truth finding also determines how much healing can occur. Those who study truth commissions recognize the need for knowledge accompanied by acknowledgment, both moral and material. In Guatemala as elsewhere, truth commission authors typically conclude by issuing a set of recommendations designed to repair harms outlined in the body of their report. The Guatemalan truth commissions failed to secure either official acknowledgment or to enact the reparations called for in Guatemala Never Again or Memory of Silence. Although the guerrilla leadership issued an official public apology, and the army a far more muted one (accompanied by denial), the Guatemalan state has

23144_GB.book Page 136 Monday, February 9, 2009 11:46 AM

136

Anita Isaacs

yet to assume responsibility for harms committed by security forces acting on its behest; instead, the murder of Gerardi, the election of Rios Montt’s frg, and a subsequent campaign of intimidation greeted the release of the truth commission reports. It took until July 2004, more than five years after publication of the ceh, for the government to oversee the establishment of an official commission mandated to formulate a program of reparations. That commission promptly became bogged down in a dispute with the current government over whether a genocide occurred. This lack of acknowledgment certainly hinders efforts to dignify Guatemala’s survivors.38 Ultimately, though, official acknowledgment may be less significant than other forms of recognition. It is unclear that any formal apology from the guerrilla and military command or the national political leadership would in itself be especially meaningful for most Guatemalan victims. A majority live in remote rural areas. Sadly and typically, what happens in the capital, or among the country’s elites, might as well be occurring in another country. For these individuals, the kind of acknowledgment provided to Antonia’s surviving son is restorative. Her husband’s name and his dignity, and with it her own, were retrieved by a chance encounter with someone from a neighbouring town who happened to remember him. By the same token, an apology from the former mayor, who still lives among the women of Santo Tomas, would carry more weight than would any formal acknowledgment of wrongs committed issued either by a former general or by the president of the republic. The distinction is not simply due to distance and political ignorance. While the lie Francisco lived was lived by many others, an equal number of survivors know who to blame for the murder and disappearance of family members. They recognize that orders may have come from above and that townsfolk may have been manipulated. But they also frequently insist that neighbours, friends, and relatives are guilty, implicated in the crimes whether as informants or as executioners. These are choices they need not have made. Survivors often whisper, “I know who did it, and he still lives here,” their voices conveying as much rage as fear. Others are more outspoken and definitive, insisting that all those implicated must “assume their responsibility.” “Unless they do,” one woman explains, “I will never find any peace.”39

23144_GB.book Page 137 Monday, February 9, 2009 11:46 AM

Truth and the Challenge of Reconciliation in Guatemala

137

Symbolic forms of acknowledgment can take other forms, as demonstrated by the experience of Adela, the refugee now living in La Merced. The testimony she gave to the Spanish ngo has been transcribed and compiled alongside other similar stories. Stapled together and bound, a Xeroxed copy of the collection has been given to the community. Giggling shyly, Adela recalls: “When my children saw it, they said ‘Mami you’re in the book – there are six whole pages of you.’ And I said to myself, boy do I talk a lot!” Adela’s obvious pleasure in relating this lay partly in having told her story. More important, it came from having seen the result. Its six-page weightiness spoke to Adela’s own worthiness. Truth commissions, therefore, can bypass formal apologies and official acknowledgment, providing alternative forms of recognition. This is confirmed by the reception remhi’s dissemination program has received. If the initiative is successful, however, it will not be merely because it is perceived as “quasi-official.” For survivors who were treated no better than animals, it is meaningful that someone cares enough to listen to them, to record and transcribe their experiences, and to return what they narrated. Finally, if truth commissions overestimate the importance of official apologies, they underestimate the significance of material reparations. Many who gave their testimonies to remhi or the ceh wanted more than an opportunity to tell their story or to hear someone say they were sorry. “Widows would come to the ceh with a list of everything they had lost,” a statement taker recalled, “it included very simple things, like a huipil, the things they used in the kitchen, each of their animals.” The National Reparations Commission is encountering a similar phenomenon today as their members travel the country, meeting with local communities to explain program objectives and to solicit survivor input. One representative tells of a March 2005 meeting held in a remote highland community. An accompanying documentary filmmaker asked whether one or two survivors might be willing to give testimony as background footage for a discussion of reparations. His request delayed the proceedings for an entire day. While only a handful of villagers had testified before the ceh, every one of the three hundred survivors in attendance insisted on telling her or his story. The passage of time may explain the enthusiastic reception the filmmaker’s request received. Yet it was no accident that those listening were also individuals connected to the National Reparations Commission.

23144_GB.book Page 138 Monday, February 9, 2009 11:46 AM

138

Anita Isaacs

Many Guatemalan survivors connect truth with dignity and repair. Liliana, the survivor of gang rape whose husband disappeared, explains that her decision to testify before the ceh was something she did willingly for others who should know what happened in her hamlet. Liliana adds, however, that reparations are what she and her community really need. She even has a clear understanding of how to repair harms. She suggests those responsible could build a school in Chinique and offer children scholarships bearing the names of fathers or grandfathers who died and disappeared. As Liliana’s proposal indicates, reparations can be simultaneously symbolic and material. They can serve to acknowledge the truth while dignifying both the victims who died and those who survived.

s u m m a ry a n d c o n c l u s i o n s Guatemala’s truth commissions made a difference in the lives of many. They validated survivor suffering, offered them an opportunity to tell the world their story, and permitted them to leave a written record for their children. The degree to which they helped them heal, however, is less clear. Those who testified couldn’t tell everything because there was too much to say and insufficient time to remember, and also because they were too frightened or ashamed. Just as significantly, most were not given a hearing. To some extent the problem was one of reach, a function of time and resource constraints and too many victim-survivors. But the obstacles were, in fact, far greater. Many did not give testimony because they were not considered victims.40 Others who fit within the category of victim remained too mistrustful to participate fully in the process. Sadly, then, both remhi and the ceh were partly hamstrung by the very obstacles they sought to confront. Designed to help victims heal by breaking their silence, conquering their fear, and building renewed trust, these truth commissions instead appear to have stood in the way of the telling required to facilitate the envisioned process of emotional recovery. That truth commissions facilitate conciliatory knowledge is a more complex claim than is sometimes assumed. Depending on the targeted audience, formal truth commissions may not be the only or the most effective means of recording what happened. Undoubtedly, the social scientific analysis provided by the ceh offered some Guatemalans irrefutable documentation of a bleak and brutal period in

23144_GB.book Page 139 Monday, February 9, 2009 11:46 AM

Truth and the Challenge of Reconciliation in Guatemala

139

their country’s history. Yet Memory of Silence may carry far less meaning for the country’s Mayan survivors. They, and their children, may benefit more by recording their histories of suffering and survival in culturally appropriate ways. Furthermore, cognitive recovery involves more than telling or discovering the truth. It also requires a sustained opportunity to process what is told and what is learned. In the case of the ceh and, until recently, remhi that opportunity has been denied by the absence of follow through. That being said, the knowledge survivors often seek is not necessarily the kind of knowledge that truth commissions can provide. Guatemala’s survivors may understand the dynamic of la violencia as well as anyone, but they require assistance in locating their relatives’ remains. By enabling survivors to lay their family members to rest according to Mayan spiritual practices, as well as by providing convincing proof of atrocities endured, an exhumation process may thus do more than a truth commission to help those traumatized by the violence find peace of mind. Finally, the Guatemalan experience reveals that telling the truth and learning the truth do not necessarily follow neatly from one another; in fact, at times they may be in tension with one another. Precisely because of the ways in which civil conflicts involve violent betrayals and secrets, getting it off their chest can provide relief for some, while learning that same truth can prove emotionally devastating for others. Truth commissions also find it harder in practice than in theory to dignify survivors. Time constraints, further hindered by inadequately trained staff and the insufficient presence of indigenous statement takers, meant that those who testified before the ceh (especially) were often not accorded the kind of affirming listening that dignification through telling seems to require; rather, the truth commission structure at times reminded witnesses of a Guatemala that had historically degraded them. Guatemala’s truth commissions faced an additional hurdle – namely, that posed by acknowledgment. To some degree this may be indicative of a misplaced emphasis on generating official expressions of remorse and responsibility, whereas the majority of rural victim-survivors may derive more emotional benefit from acknowledgment issued by local perpetrators. That being said, truth commissions failed to secure the more tangible forms of repair, which, as Liliana persuasively suggests, might have contributed more to

23144_GB.book Page 140 Monday, February 9, 2009 11:46 AM

140

Anita Isaacs

the dignity and empowerment of survivors than truth or formal apologies. Guatemala’s truth commissions could find the army guilty of genocide. They could raise the prospect of prosecution and recommend extensive reparations, but they could not make either happen. Indeed, they could not even make their findings stick, as evidenced by the ongoing battle over whether or not to acknowledge genocide when formulating a reparations program. These shortcomings pave the way for four general conclusions regarding the relationship between truth and healing. The first calls for a set of policy prescriptions, several of which have been suggested by others. In order to help victims heal, truth commissions need to do better and need to do more. They must interview more survivors, afford them the opportunity to talk for longer, and train staff to better respond to the emotional suffering they encounter. Alternatively, perhaps, they need to acknowledge that telling once is retraumatizing, as is the discovery of a truth long denied. In structuring a truth commission, therefore, provisions must be made to provide sustained psychological treatment. Additionally, those involved in the work of truth commissions should make sure that they not only recommend but devise a means to return the testimonies – at a minimum to communities in which these were solicited. In this way, they are not just taking away once more but are also giving back in ways that survivors see as dignifying and that may contribute to processing discovered truths. Second, Guatemala’s experience suggests that truth commission advocates may overestimate the importance of establishing official truth-telling initiatives. A great many survivors do need to tell what happened in order to begin to process their traumas. Yet those who testified before the truth commission were usually not relating their story for the first time, while many who chose not to give testimony had nonetheless already spoken about what happened to them. They had done so in informal settings, in an ongoing manner, and with individuals in whom they may have had more trust. The same may hold for symbolic forms of acknowledgment. These may be especially meaningful when they come not from on high but from those who committed the crimes and from those who knew the victims personally. Third, the timing of truth commissions is off. Typically, investigatory commissions are conceived as the foundational step in a general process of recovery, reconstruction, and reconciliation. Yet this

23144_GB.book Page 141 Monday, February 9, 2009 11:46 AM

Truth and the Challenge of Reconciliation in Guatemala

141

is the same kind of misperception that tends to regard survivors as suffering from post-traumatic stress disorder. If truth commissions are to help survivors heal, then those in power must be willing to reform a disordered polity or society that continues to traumatize victims. Indeed, these reforms need to be pursued either simultaneously or, perhaps, even before a truth commission begins its work. For truth to be told and to be heard, the political and social climate must be one in which the rule of law is felt to prevail, in which fear and mistrust do not preclude telling, and in which the discovery of truth does not lead to a search for revenge by the only means available: taking justice into one’s own hands. More than political will is at issue: so, too, are competing notions of reconciliation. When asked about its prospects, Guatemalan human rights and indigenous activists turn the question around, inquiring instead, “How can a country reconcile if it has never been ‘conciled’ in the first place?” For them, reconciliation cannot occur without first altering the historical structures of power within which the victims of the thirty-six-year armed conflict are comprised of the same individuals/groups who have always been excluded. Truth can serve as an impetus for reconciliation – individual, social, and political – to the extent that it dignifies victim-survivors. The key, however, lies in enabling dignified survivors to exercise their newly discovered rights and agency, becoming powerful social and political actors in their own right. The catch, however, is that this is a vision noticeably at odds with the kind of reconciliation foreseen when opting for truth as the mechanism through which to confront the past. That framework also imagines social and political reconciliation as accompanying individual healing – multiple outcomes of truth. But it posits a notion of social reconciliation grounded in forgiveness and of political reconciliation anchored in securing a fragile transition. According to this scenario, victims must exercise restraint, limiting their demands and sacrificing their new-found rights. They must reconcile themselves to truth as justice, forsaking legal accountability and social or economic reconstruction. In essence, the success of reconciliation hinges on survivors agreeing to do what Maria, Liliana, Fermina, and so many others insist they cannot: accept an elite recipe that mixes forgetfulness and forgiveness, privileging stability and continuity rather than a potentially polarizing pursuit of conciliation as a step towards reconciliation.

23144_GB.book Page 142 Monday, February 9, 2009 11:46 AM

142

Anita Isaacs

notes

1 2 3 4 5 6

7

8

Anita Isaacs is associate professor of political science at Haverford College and is Benjamin R. Collins Professor of Social Science. Author interview, March 2003. Author interview, July 2000. Author interviews, January 2002. Author interview, July 2003. Author interview, 1998. remhi was partly intended to provide data that could be used by the Commission for Historical Clarification and partly to compensate for what many feared would be a highly circumscribed inquiry by the ceh. the American Association for the Advancement of Science sponsored a third investigation into wartime violence upon which the ceh also drew. See Patrick Ball, Paul Kobrak, and Herbert F. Spirer, State Violence in Guatemala, 1960–1996: A Quantitative Reflection, available at http:// shr.aaas.org/guatemala/ciidh/qr/english/, viewed 26 August 2008. There is a considerable literature assessing the Guatemalan truth commissions, especially the ceh. See, for instance, Ruth M. Gidley, Cynthia Kee, and Reggie Norton, Guatemala: Thinking about the Unthinkable (London: Association of Artists for Guatemala, 1999); Greg Grandin, “Chronicles of a Guatemalan Genocide Foretold,” Nepantla: Views from the South 1, 2 (2000): 391–412; Christian Tomuschat, “Clarification Commission in Guatemala,” Human Rights Quarterly 23, 2 (2001): 233–58; Paul Seils, “Reconciliation in Guatemala: The Role of Intelligent Justice,” Race and Class 44, 1 (2002): 33–59; Joanna Quinn and Mark Freeman, “Lessons Learned: Practical Lessons Gleaned from Inside the Truth Commissions of Guatemala and South Africa,” Human Rights Quarterly 25 (2003): 1117– 49; Richard Wilson, “Violent Truths: The Politics of Memory in Guatemala,” Accord, available at , viewed 15 November 2003; Audrey Chapman and Patrick Ball, “The Truth of Truth Commissions: Comparative Lessons from Haiti, South Africa and Guatemala,” Human Rights Quarterly 23 (2001): 1–43; Rachel Sieder, “War, Peace and the Politics of Memory in Guatemala,” in Burying the Past: Making Peace and Doing Justice After Civil Conflict, ed. Nigel Biggar, 209–34 (Washington: Georgetown University press, 2003); and unops, Las Operaciones de la Comision para el Esclarecimento Historico en Guatemala (Guatemala City: unops, n.d.). See, for instance, Dori Laub and Nanette C. Auerhahn, “Knowing and Not Knowing Massive Psychic Trauma: Forms of Traumatic Memory,”

23144_GB.book Page 143 Monday, February 9, 2009 11:46 AM

Truth and the Challenge of Reconciliation in Guatemala

9 10

11

12

143

International Journal of Psychoanalysis 74 (1993): 287–302; Dan Bar-On, Legacy of Silence: Encounters with Children of the Third Reich (Cambridge, ma: Harvard University Press, 1989) Judith Herman, Trauma and Recovery (New York: Basic Books, 1992) 121, most explicitly refers to post-traumatic stress disorder. Yael Danieli, “Preliminary Reflections from a Psychological Perspective,” in Transitional Justice: How Emerging Democracies Reckon with Former Regimes, ed. Neil Kritz, 572–82 (Washington: United States Institute of Peace Press, 1995), speaks of a conspiracy of silence. On this point also consult I. Martin Baro, Writings for a Liberation Psychology: Ignacio Martin-Baro, (Cambridge, ma: Harvard University Press, 1994); M. Brinton Lykes, “Possible Contributions of a Psychology of Liberation: Whither Health and Human Rights?” in The Health Psychology Reader, ed. David F. Marks, 356–7 (London: Sage Publications); David Becker, “The Deficiency of the Concept of Posttraumatic Stress Disorder When Dealing with Victims of Human Rights Violations,” and Elizabeth Lira Kornfeld, “The Development of Treatment Approaches for Victims of Human Rights Violations in Chile,” both in Beyond Trauma: Cultural and Societal Dynamics, ed. Rolf J. Kleber, Charles R. Figley, and Berthold P.R. Gersons, 99–110, 115–32 (New York: Plenum Press, 1995); Marcelo M. Suarez–Orozco and Antonius C.G.M. Robben, “Interdisciplinary Perspectives on Violence and Trauma,” in Cultures under Seige: Collective Violence and Trauma, ed. Antonius C.G.M. Robben and Marcelo M. Suarez-Orozco, 1–41 (New York: Cambridge University Press, 2000); and the collection of articles in ecap, Psicologia Social y Violencia, (Guatemala: Siglo Veintiuno, 2003). Finally, on passing on to future generations, see Martin S. Bergman and Milton E. Jucovy, Generations of the Holocaust (New York: Basic Books, 1982); and Ilany Kogan, “‘Enactment’ in the Lives and Treatment of Holocaust Survivors’ Offspring,” Psychoanalytic Quarterly 72 (2002): 251–72. See Danieli, “Preliminary Reflections from a Psychological Perspective”; Roberto Cabrera, “Should We Remember? Recovering Historical Memory in Guatemala,” in Past Imperfect: Dealing with the Past in Northern Ireland and Societies in Transition, ed. Brandon Hamber, 25–30 (Derry/Londonderry, Northern Ireland: incore, 1998); Carlos Beristain, “Verdad Justicia y Reconciliacion,” available at , viewed 10 July 2005. See the above and Jean Bethke Elshtain, “Politics and Forgiveness,” in Biggar, Burying the Past, 50. See also Inger Agger and Soren Buus Jensen, Trauma and Healing under State Terrorism (London: Zed Books, 1996), 108 on the development of the testimonial method in Chile; and Stevan W.

23144_GB.book Page 144 Monday, February 9, 2009 11:46 AM

144

13

14

15

16 17 18 19 20

Anita Isaacs

Weine, When History Is a Nightmare: Lives and Memories of Ethnic Cleansing in Bosnia-Herzegovina, (New Brunswick, nj: Rutgers University Press), 152–74 for a general discussion of testimonials and of the Bosnian experience. Hamber, “Do Sleeping Dogs”; Danieli, “Preliminary Reflections from a Psychological Perspective,” 573–5; See also Ervin Staub and Laurie Anne Pearlman, “Healing, Reconciliation and Forgiving after Genocide and Other Collective Violence,” in Forgiveness and Reconciliation, ed. Raymond G. Helmick and Rodney L. Petersen (Radnor, pa: Temple Foundation Press, 2001), 205–6. Trudy Govier, “What Is Acknowledgment and Why Is It Important?” in Dilemmas of Reconciliation: Cases and Concepts, ed. Carol A.L. Prager and Trudy Govier, 65–89 (Waterloo, on: Wilfrid Laurier University Press, 2003); Danieli, “Preliminary Reflections from a Psychological Perspective”; Brandon Hamber, “Repairing the Irreparable: Dealing with Double Binds of Making Reparations for Crimes of the Past,” Ethnicity and Health 5, 3–4 (2000): 215–26, available at , viewed 12 January 2005; Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston: Beacon Press, 1998), esp. pp. 91–147; John Torpey, ed., Politics and the Past: On Repairing Historical Injustices (Lanham, md: Rowan and Littlefield, 2003). See Equipo de Antropologia Forense de Guatemala, Las Masacres en Rabinal (Guatemala City: eafg, 1995), esp. 327–33; Linda Green, Fear as a Way of Life: Mayan Widows in Rural Guatemala (New York: Columbia University Press, 1999); Victoria Sanford, Buried Secrets: Truth and Human Rights in Guatemala (New York: Palgrave Macmillan, 2003); Daniel Wilkinson, Silence on the Mountain: Stories of Terror, Betrayal and Forgetting in Guatemala (New York: Houghton Mifflin, 2002); and Judith Zur, Violent Memories: Mayan War Widows in Guatemala (Boulder, co: Westview Press, 1998) Author interview with remhi volunteer, Guatemala City, July 2004. Author interview with Edgar Gutierrez, 1999: and Cynthia Kee, “Thinking about the Unthinkable,” in Gidley, Kee, and Norton, Guatemala, 14–15. Quoted in Priscilla Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York: Routledge, 2001), 139. Author interview 2002. See, for instance, Brandon Hamber, “Does the Truth Heal?” in Biggar, Burying the Past, 155–74; Hayner, Unspeakable Truths, 133–53; Seils, “Reconciliation in Guatemala”; and Eric Stover, “Witnesses and the

23144_GB.book Page 145 Monday, February 9, 2009 11:46 AM

Truth and the Challenge of Reconciliation in Guatemala

21 22

23 24 25 26

27 28 29

30 31 32 33 34 35

145

Promise of Justice in The Hague,” in My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, 104–20 (New York: Cambridge University Press, 2004). Author interview, Department of Chimaltenango, February 2003. For a succinct discussion of this, see, inter alia, Michael Humphrey, “From Terror to Trauma: Commissioning Truth for National Reconciliation,” Social Identities 6, 1 (2000): 11. See also Mary Tijattas, “Psychoanalysis, Public Reason and Reconstruction in the ‘New’ South Africa,” American Imago 55, 1 (1998): 51–76; Sven Ake Christianson and Torun Lindholm, “The Fate of Traumatic Memories in Childhood and Adulthood,” Development and Psychopathology 10 (1998): 761–80; Gordon H. Bower and Heidi Sivers, “Cognitive Impact of Traumatic Events,” Development and Psychopathology, 10 (1998): 625–53. This argument about bias is made more broadly in Chapman and Ball, “The Truth about Truth Commissions.” Author interviews conducted in Santa Clara, San Fernando, November 2003 and July 2004. Only 8 percent of remhi witnesses were perpetrators of abuses, whether guerrillas, pacs, or members of the army. This point is also made in John Borneman, “Reconciliation after Ethnic Cleansing: Listening, Retribution, Affiliation,” Public Culture 14, 2 (2002): 289. Author interview with remhi volunteers, July 2004. Ibid., Guatemala City, July 2004. Guatemala’s forensic anthropologists have produced their own mini-truth commission reports on the basis of evidence collected during exhumations. See, for instance, Equipo de Antropologia Forense de Guatemala, Las masacres en Rabinal (Guatemala City: eafg, 1995). See, for instance, George Hagman, “Mourning: A Review and Reconsideration,” International Journal of Psychoanalysis 76 (1995): 909–25. Author interview, Chimaltenango, February 2002. Author interview, Nebaj, March 2002. Author interview, Chimaltenango, June 2004. Author interview, Utz’Kaslemal, Santa Cruz del Quiche, July 2004. On the importance of trained listeners, see Borneman, “Reconciliation after Ethnic Cleansing”; Humphrey, “From Terror to Trauma”; and Hayner, Unspeakable Truths. Also on the role of psychotherapists, see Stevan M. Weine, When History Is a Nightmare: Lives and Memories of Ethnic Cleansing in Bosnia-Herzegovina (New Brunswick, nj: Rutgers University Press, 1999), 169–74.

23144_GB.book Page 146 Monday, February 9, 2009 11:46 AM

146

Anita Isaacs

36 Author interview with Alessandro Pretti, Guatemala City, July 2004. 37 Author interview, Guatemala City, July 2003. 38 The relationship between dignity and acknowledgment is addressed in Salman Akhtar, “Forgiveness: Origins, Dynamics, Psychopathology, and Technical Relevance,” Psychoanalytic Quarterly 71 (2000): 181. 39 Author interviews, July 2004 and April 2005. 40 For a discussion of these categories with respect to South Africa, see Tristan Anne Borer, “A Taxonomy of Victims and Perpetrators: Human Rights and Reconciliation in South Africa,” Human Rights Quarterly 25 (2003): 1088–116. Research for this article was conducted with a grant from the United States Institute of Peace.

23144_GB.book Page 147 Monday, February 9, 2009 11:46 AM

8 Contact and Culture: Mechanisms of Reconciliation in Schools in Northern Ireland and Israel CAITLIN DONNELLY JOANNE HUGHES

b ac k g ro u n d Mixed religion/cultural schools in Northern Ireland and Israel were first established in the 1980s to address the problems of poor intergroup relations in both jurisdictions. Underpinned by ideas associated with the “contact hypothesis,” the schools were explicitly designed to welcome groups from diverse cultural and religious traditions with the intention of instilling greater communal tolerance and respect. While they have generally attracted much positive publicity, the qualitative processes through which the schools seek to improve relations have not been widely discussed, and questions remain as to the contribution that they can make to generating intergroup reconciliation. Focusing on the processes for building better community relations, this chapter aims to compare how these “integrated” schools in Northern Ireland and Israel foster reconciliation between divided groups. We begin by briefly tracing the background of mixed religion education in Northern Ireland and Israel. We then present our conceptual framework, which is informed by Allport’s theory of contact.1 We explain the qualitative methods in the third section and then present and analyze the comparative data in sections 4 and 5. We conclude with an analysis of the variations in practice across the four schools. We argue that existing social and cultural norms in the schools can both positively and negatively influence the reconciliation process.

23144_GB.book Page 148 Monday, February 9, 2009 11:46 AM

148

Caitlin Donnelly and Joanne Hughes

mixed religion schools in northern i r e l a n d a n d i s r a e l : b ac k g ro u n d The first integrated school in Northern Ireland was established in 1981 by the campaign group All Children Together. Although ten independent integrated schools had been established by 1989, it was not until after the Education Reform (Northern Ireland) Order 1989 that integrated education became a distinct school “sector.” This legislation provided for the establishment of two new categories of integrated school. The title Controlled Integrated (ci) was to be conferred on existing Protestant or Roman Catholic schools, where a majority of parents opted to transform the school to integrated status, while those schools that were specifically established as integrated institutions were to be referred to as Grant Maintained Integrated (gmi). In awarding funding, the Department of Education further established a range of criteria that both categories of school are required to meet if they are to qualify for full financial support. The complement of pupils in integrated schools must reflect roughly equal proportions of Protestants and Catholics: the ratio for gmi schools must not fall below 70:30 (40 percent Protestants, 40 percent Catholics, and 20 percent “other”), and new schools must show that they will attract enough pupils to ensure that they are viable. For schools to meet the conditions to transform to integrated status at least 10 percent of pupils from the minority religion and culture must be enrolled at the point of transformation, and the Department of Education expects this figure to increase over time to the point where there is an overall balance (with regard to pupil enrolments) of at least 70:30 within a period of ten years. The different paths to integration taken by controlled and gmi schools are also reflected in the constitution of the boards of governors in each of the school types. In the ci schools the Protestant and Catholic churches and the Education and Library Board have the right to nominate governors, but in the new gmi schools these groups have no right of representation. However in both types of school the Northern Ireland Council for Integrated Education stipulate that the complement of governors and staff should (as far as is possible) be religiously balanced. In December 2008 there are sixtyone integrated schools in Northern Ireland. Forty-one are primaries and twenty are post-primary. These are comprised of twenty ci and forty-one gmi schools.

23144_GB.book Page 149 Monday, February 9, 2009 11:46 AM

Contact and Culture

149

Although still in its infancy, the bilingual/binational network of schools in Israel is broadly comparable to the integrated school sector in Northern Ireland. Like their Northern Ireland counterparts, they aim to build equality and to nurture identity through imparting knowledge of culture and tradition; however, the more explicit emphasis on co-existence rather than on integration remains a distinguishing feature. The first bilingual/bicultural school, Neve Shalom/ Wahat al Salam, was opened in Israel in 1984. Situated in a Jewish Arab village equidistant from Tel Aviv and Jerusalem the school educates children from three months to twelve years and enrols approximately three hundred pupils. It operated independently until 1992, when the kindergarten first received state support. This support was extended to the main school in 1993. By 1997, the primary school was accorded the status of “experimental school,” thereby receiving recognition of its potential as a model for improving intergroup relations. From the beginning of the 2000–01 school year, the status of the school was changed to that of an official, extra-regional school, which accords it full state recognition and ensures that it will be completely funded by the educational authorities. The other four schools were established by the Hand in Hand Center for Jewish-Arab Education in Israel. In 1998, one elementary school was opened in Jerusalem and another in the Galilee Region of northern Israel. With additional schools opened in Jaffa and Wadi Ara, there are now over eight hundred pupils enrolled in all four schools from kindergarten to ninth grade.2 All of the bilingual schools are recognized as state schools by the Israeli Ministry of Education and teach the standard Israeli curriculum, which is delivered in both Hebrew and Arabic. The special focus placed on equal treatment in the schools means that building partnerships and fostering mutual understanding between Jews and Arabs is a key objective.3 Like their counterparts in Northern Ireland, parents in Israel are also involved in both the establishment and the running of the schools; however, in Israel, greater prominence appears to be given to the training and support of children and their families as they seek to encourage better intergroup relations.4 Thus, despite slight distinctions in emphases, the schools in Northern Ireland and Israel are similarly based on the assumption that contact between divided groups within an educational setting can lead to better intergroup relations. Yet, as is argued below, empirical research has consistently raised questions about the efficacy of the contact hypothesis with regard to promoting intergroup reconciliation.

23144_GB.book Page 150 Monday, February 9, 2009 11:46 AM

150

Caitlin Donnelly and Joanne Hughes

t h e c o n ta c t h y p o t h e s i s The idea that integrated contexts provide the best means of generating reconciliation between divided groups was first posited in the 1940s and is based largely on what has since become known as the “contact hypothesis.” Derived from theories of intergroup relations, contact theory assumes that tension and hostility between conflicting groups will be reduced when these groups are brought into systematic contact with each other: The basic concept is that more contact between individuals belonging to antagonistic social groups tends to undermine the negative stereotypes they have of each other and to reduce their mutual antipathies, thus improving inter-group relations … in short more contact means less ethnic or cultural conflict, other things being equal.5 It is the simplicity of the contact hypothesis combined with its ideological basis that makes it an attractive policy option for governments seeking to find solutions to difficult and protracted ethnic conflicts. This has certainly been the case in Northern Ireland, where there has been a sustained attempt since the 1980s to address cultural dissonance through contact-based initiatives.6 Yet this approach to community relations has also been criticized for being overly simplistic and superficial because, although it deals readily with the symptoms of conflict, it is less adept at dealing with the underlying reasons for conflict. When all attention is directed towards overcoming the physical separation induced by conflict, the psychological divisions that can sustain cultural difference and division can be conveniently left unchallenged.7 However, early proponents of contact theory never proposed that simple “body mixing” is sufficient to reduce prejudice. The classic version of the hypothesis posited by Allport has always emphasized that contact must have “acquaintance potential,”8 meaning that relationships must move beyond mere “sightseeing” and have the capacity to develop into meaningful friendships where participants have the opportunity to take the perspective of the “out group” in general. Further conditions include the need for divided groups to perceive themselves as having equal status within the contact situation and the need for groups to work interdependently towards

23144_GB.book Page 151 Monday, February 9, 2009 11:46 AM

Contact and Culture

151

shared goals within a contact situation that has institutional support. More recent developments in contact theory have also emphasized the need for cultural saliency in intergroup encounters as a key moderator of the contact experience. Thus ethnic relations will improve when clear and explicit reference is made to the nature and extent of cultural difference as opposed to emphasising only what groups have in common.9 But even if these conditions are met, the contact hypothesis still attracts criticism, much of which tends to focus on the methodological basis for making claims about improved intergroup relations and the lack of attention to the “process” of contact. For example, Nesdale and Todd have suggested that existing research often lacks external validity as the researchers have experimentally manipulated the group membership of subjects instead of using members of existing social groups.10 Thus the actual contact has lacked realism and has usually been brief. Other related criticisms stem from the applicability of contact conditions in different social, cultural, and organizational contexts. For example, Ray, in his study of racial attitudes, argues that, although the contact hypothesis has found most support among American and Canadian researchers, there is an “inverse contact hypothesis” that finds its supporters chiefly in Britain, Australia, and South Africa. American researchers have found that the more contact whites have with blacks, the less likely one is to be prejudiced; but in Britain, evidence suggests quite the reverse: that is, the more contact whites have with blacks, the more prejudiced white people become.11 This is interesting and draws attention to two important issues: first, contact may not always result in improved relations, indeed it may exacerbate tensions; second, the success of the contact-based initiatives may be culturally located. These issues are of particular relevance to mixed-faith schools in both Israel and Northern Ireland. First, they emphasize that the schools must ensure that certain conditions are in place if contact is not to result in greater psychological division; second, they raise questions about the influence of the local culture on the contact process in schools: will the social culture dictate the efficacy of the contact process in the schools? This is a useful question, especially when one considers the apparently disparate cultural practices in Northern Ireland and Israel. For example, if the rules of social engagement are considered to be an indicator of cultural orientation,

23144_GB.book Page 152 Monday, February 9, 2009 11:46 AM

152

Caitlin Donnelly and Joanne Hughes

then important national variations emerge that could have implications for the contact process in different cultural contexts. Israelis, for example are so well known for their open and honest patterns of dialogue that a special term, doogri, is used to capture a conversational style that is “unadorned by the complications of diplomacy and can infect most human interactions.”12 Israelis prefer to communicate in a way that is direct – very direct. Furthermore, Israelis often view indirectness as difficult to read and unnecessarily polite and prefer it when people just clearly say what they think (even if it is informing you that your thighs are fat!). Another aspect of Israeli communication is its tendency to be very expressive. Israelis do value greatly the open expression of opinions. Unlike the English who tend to keep their emotions reserved and often avoid sharing an opinion that would create conflict, Israelis generally enjoy a good discussion.13 The preference for clarity and certainty in social exchange is far removed from the discretion practised in Northern Ireland, where nuance and subtle complexity is intrinsic to social interaction. This penchant for conversational equivocation has been well documented but is perhaps best captured by the poet Seamus Heaney, who recognizes not only the reticence of the people but also the latent bitterness and hostility that can lend substance to the blatant sectarianism that is endemic to the social order: Religion’s never mentioned here of course … The famous Northern reticence the tight gag of place … where to be saved you only must save face. And whatever you say, say nothing … subtle discrimination by addresses with hardly an exception to the rule … O land of password, handgrip, wink and nod, of open minds as open as a trap. Where tongues lie coiled as under flames lie wicks.14 While the communication practices in Israel and Northern Ireland are indicative of quite distinct social and cultural norms, it remains unclear whether these national cultural characteristics are manifest at the institutional level. Existing research does, however, emphasize the potential for schools and other organizations to exhibit and endorse key elements of the national culture. Brown, for example, acknowledges the national culture as a key source of organizational

23144_GB.book Page 153 Monday, February 9, 2009 11:46 AM

Contact and Culture

153

culture.15 Similarly, Hofstede argues that national cultural differences are often reflected in solutions to organization problems insofar as different national cultures embrace different ways of structuring organizations and different patterns of employee motivation.16 This is further endorsed by the work of He Chuan Sun,17 who asserts that school culture is inseparable from and embedded in the wider national culture. Notwithstanding the idea that schools have multiple and competing cultures, these arguments give rise to some interesting issues around the extent to which schools in different cultural contexts respond to the contact process. It is with this question that the current research is concerned.

methods The data were derived from both primary and secondary sources. The School Prospectus and the School Development Plans (or variants of these in each school type) were the main sources of documentary evidence. Four primary schools were selected to take part in the study. One ci school and one gmi school in Northern Ireland (hereafter referred to as School C and School G, respectively) and two schools in Israel (hereafter referred to as School S and School E). A total of thirty semi-structured (taped) interviews were conducted, each lasting 1.5 to 2.5 hours. While the specific issues discussed varied between participants all interviews ranged across a series of common themes related to perceptions of the school ethos and the process of building better intergroup relations. Interviews were supplemented with staff-room observation, which offered an insight into teacher actions and interactions in real life situations.

t h e data There was a general consensus both within and across the four schools about how to establish an ethos of tolerance and respect for diversity. Although not always explicitly employing the language of contact theory, the teachers and parents across all of the schools agreed that the ethos of a “mixed” school was intrinsically linked to the presence of three key factors. These included maintaining religious balance in pupil enrolments and teacher/governor appointments, taking time out of formal teaching to discuss issues that were

23144_GB.book Page 154 Monday, February 9, 2009 11:46 AM

154

Caitlin Donnelly and Joanne Hughes

important to pupils, and commemorating national days and symbols. Broadly, these conditions correlate to the conditions for effective contact as set out by Allport. Securing religious balance in enrolments and appointments suggests a commitment to equal status between the groups present; setting time aside for informal discussion during “circle time” similarly not only creates an opportunity for friendship to deepen between pupils from different cultural backgrounds but also enhances an understanding of the similarities and differences between the groups. Ceremonies, rites, and rituals were also considered important as it was in these acts of public celebration that participants recognized an opportunity for pupils to learn to understand and tolerate political and cultural difference. Yet the process of developing tolerance and respect for diversity was more complicated than it first appeared.

t h e c o n ta c t p r o c e s s Balance In all four schools the term “balance” was employed as the key descriptor for the school ethos. However, both attaining and maintaining a balanced enrolment was proving to be a difficult task for both Northern Ireland schools and for School E in Israel. In School G, for example, even the process of monitoring the ratio of Protestants to Catholics was a challenge, mainly because parents were unwilling to publicly define themselves in terms of either a “Catholic” or a “Protestant” identity. As the head pointed out: We can’t get people to commit … [When people are asked to state their cultural or religious background] we get loads of “other” responses … Or “none” and that is worrying because so many people in Northern Ireland are from a cultural or religious background and that is what they should be identifying with for the purposes of these schools. This view was further endorsed in the interviews with parents who showed a discernible reluctance to disclose their cultural or religious identity: We don’t need labels … that is the problem here … I have real difficulty with the terms “Protestant” and “Catholic” … the

23144_GB.book Page 155 Monday, February 9, 2009 11:46 AM

Contact and Culture

155

sooner that we can forget about these in Northern Ireland the better … we are really all the same in my book … labels divide. (Parent, School G) To deal with the problem, the acting-head teacher admitted that he was forced to guess the religious backgrounds of pupils while always making sure that he submitted a “breakdown” of the school’s religious balance to the de that at least met its basic criteria of 70:30. Although parents in School C were less inhibited in revealing their identity than were parents in School G, the statistics conceal some interesting issues. Somewhat unexpectedly for schools in the controlled integrated sector, this school had a problem attracting Protestants.18 This was mainly due to recent demographic shifts, which had resulted in many Protestants moving out of the school’s catchment area. To ensure that it was officially meeting the criteria outlined by the de, the head teacher had decided to classify all children from mixed marriages as “other” (even though he knew that many of these children were practising Catholics). He stated that the actual proportion of Catholics attending the school was, in fact, much higher than what was reflected in the statistical return he provided to the de: “I have to ensure that we remain up and running as a school and if that means re-categorizing people I will have to do that.” The issue was further complicated when the backgrounds of the teaching staff were considered. Here the situation pertaining to the pupils was reversed in that, of the six full-time teaching staff, five were Protestant and one was Catholic (another Catholic teacher was employed on a part-time basis to teach Catholic religion). The commitment to maintaining a balance among staff clearly invoked a number of practical difficulties as it depended on staff leaving and being replaced with Catholics. School E also experienced problems in maintaining a balanced enrolment. This was mainly because the school was viewed differently by the Arab and Jewish communities in Israel. For Arab parents, school choice was restricted as there were few well-regarded Arab schools in the country. The bilingual school thus offered important educational opportunities for their children that may otherwise have been denied. Arab children would therefore be exposed to their own language and culture while simultaneously learning the national Israeli language and culture, which some Arabs regard as essential for success within the state of Israel: As one Arab parent commented:

23144_GB.book Page 156 Monday, February 9, 2009 11:46 AM

156

Caitlin Donnelly and Joanne Hughes

I want my child to learn Hebrew because that is likely to enhance their chances of success within the state of Israel. I know some might find this difficult to understand but that is the reality of the situation. (Parent, School E) Conversely, the strong network of “effective” Jewish schools in Israel meant that Jews had less compulsion to look beyond their own school system for a good education. This meant that the school had trouble attracting Jewish children. Recognizing that any imbalance in the ratio of Jews to Arabs would deeply compromise the school’s ethos, the co-principals had developed a variety of marketing strategies in order to promote the school within the Jewish community, and this seems to have paid off: We have 50/50 balance which we insist on but in the past it was difficult to get the Jewish children because they have better alternatives … but this year it is almost the same … We tried to market the schools to the Jewish community. For Arab parents this is a good school we have a high quality education here it is two teachers in a small classroom and this why they like it … And this year we have a lot of parents on the waiting list – on the Jewish waiting list and the Arab waiting list … It was surprising and encouraging for us. (Principal, School E) So, although School E had encountered similar problems to School C in achieving a balanced enrolment, its response to the problem seemed to underline some interesting variations between the schools in the two jurisdictions. In Northern Ireland, the overriding focus in both schools was clearly on meeting de targets on pupil balance, and this dictated the most of the activity in the school. For example, the principals’ key concern was that their schools not be penalized for failing to meet the balance criteria set by the de.19 Much less importance appeared to be attached to the effect that a pupil (or, indeed, a staff) imbalance may have on the process of constructing and maintaining the integrated ethos. In Israel a quite different set of assumptions prevailed. Here there was general agreement that any imbalance in pupil enrolment needed urgent attention not just because it undermined the school’s formal commitment to a 50/50 balance but mainly because it would adversely affect its mission to build equality among Arabs and Jews. As such,

23144_GB.book Page 157 Monday, February 9, 2009 11:46 AM

Contact and Culture

157

considerable efforts had been invested (with clear indications of success) to attract Jewish children. Thus, compared to Northern, Ireland it might be said that Israel had adopted a more processoriented and proactive approach to ensuring equal numbers of pupils within the school

l a n g uage a n d b a l a n c e i n i s r a e l In Israel, the management of linguistic diversity created an additional set of equality issues that wasn’t present in either of the schools in Northern Ireland.20 The bilingual focus of the schools means that a key concern is to educate children in both Arabic and Hebrew. The instruction in different languages is not just a mechanism for ensuring linguistic proficiency; it also has strong cultural and social overtones. Language is recognized in the schools both as a marker of identity and as a social and cultural resource that may be used by groups and nations to include or exclude access to social, cultural, or economic resources.21 Thus the focus on bilingualism is an important means of according equal linguistic and cultural status to the groups represented. In School E, two teachers, each fluent in one of these languages, are assigned to co-teach each class. Nothing is translated and the teachers act as role models for their particular culture, often using body language to assist in the teaching process. The dual-teacher approach is interesting as it requires the teachers not only to teach together but also to work closely together in planning the lesson – a process that teachers welcomed as they believed the level of interaction required assisted them in overcoming their prejudices and fears (interview data). In School S, classes were taught by individual teachers in their own language, although children were taught religion and maths separately. In an attempt to overcome the general perception of Arab subjugation in Israeli society both schools had devised a policy to encourage the use of Arabic in and outside the classrooms. While this provided further evidence of the proactive approach adopted by the Israeli schools to developing the school ethos, this policy was nonetheless proving difficult to implement: We have to understand and be sensitive to the [Arabic] culture. The Jewish teachers are trying to learn the Arabic language and it

23144_GB.book Page 158 Monday, February 9, 2009 11:46 AM

158

Caitlin Donnelly and Joanne Hughes

is hard for them. Because the Jews go home and they don’t hear the other language [Arabic], but the Arab boy goes home and can understand the tv as it is in Hebrew, and then he can speak to his family in Arabic. It is difficult … In school too it is difficult so we just speak in English outside of the classroom as that means that no one can claim that they have the power … Yet that is not good. It is unfair to all of us as we aren’t challenging. (Head teacher School S) In School E there was also a tendency to speak English outside of formal lessons, and teachers were becoming frustrated that the language policy was not working. There were also potential repercussions, not least of which was that the imbalance of power and status accorded each identity, which is what lies at the root of the Israeli conflict, is left unchallenged and is perhaps subtly reinforced within the school context. Furthermore, the inclination to speak English perhaps signals a reluctance to openly address an issue that has the potential to create further conflict. Yet, in spite of teacher frustration at its inconsistent implementation, Bekerman has suggested that positive action policies with regard to the use of Arabic were, nonetheless, important if only for publicly legitimizing Arab identity and symbols as well as for allowing parents to be confident that they had made the right decision in sending their children to the school – a decision they might otherwise have found difficult to defend to family and friends.22

c i rc l e t i m e “Circle Time” was practised in all four schools. This refers to a period of time set aside in the school week in which teachers asked pupils to sit in a circle and talk about issues of interest to them. Although not its specific intention, teachers considered Circle Time to be a useful opportunity to encourage reconciliation between the divided groups. They stated, for example, that this type of “discussion forum” created opportunities to debate issues relevant to the conflict. The ways in which teachers dealt with these issues, however, varied across the four schools. In Northern Ireland (with one exception) all of the teachers were either nervous of such discussion or did not see it as important in the integrated school context.

23144_GB.book Page 159 Monday, February 9, 2009 11:46 AM

Contact and Culture

159

Alternatively, in Israel, with two exceptions (one teacher from each school), teachers tended to describe these discussions as cathartic and as a natural part of the process of breaking down political and cultural boundaries. The following quotations capture something of the gap between the perspectives of teachers in the two countries: Our 4th Graders might not understand everything but they tell their stories and we tell them our stories and the teachers talk together and then we go into the classrooms and talk to the children … I think that the teachers have a big role so they talk about it personally and then they allow the children to tell their own stories too … At the end of one Circle Time session all the girls came and started hugging the teacher and saying that we would find a solution … It means that if they can talk about it in Circle Time then they can go out after 6th Grade and into the communities and talk about their experiences here …they can really understand what motivates the other group. (Teacher, School S) In Circle Time, we have really good discussions … We talk maybe about things like Rangers and Celtic [Scottish football teams associated with the Protestant and Catholic communities, respectively] every now and then and I don’t mind about that I let them talk about it … I would say we all like different things and I would say I like Manchester United [English football team] and in that way the conversation is changed and, you know, then there isn’t any talk about religion. (Teacher, School C) Two quite distinct approaches to Circle Time had thus evolved. Focused mainly on telling personal stories about the conflict, the Israeli teachers used this time to encourage pupils (and teachers) to exchange stories about how they, personally, were and are affected by the violence. This type of discussion was endorsed by teachers in the belief that it would encourage pupils to not only develop an understanding of others but also, through activities like role-play and the exchange of personal views and information, create empathy with the social and cultural injustices experienced by the other group. This is something that has been recognized by Kenworthy et al. as likely to have a number of positive consequences for intergroup relations, not least because it allows individuals to feel part

23144_GB.book Page 160 Monday, February 9, 2009 11:46 AM

160

Caitlin Donnelly and Joanne Hughes

of a “shared humanity.”23 Empathy is also likely to inspire individuals to address problems experienced by the person for whom empathy is felt.24 Thus, encouraging groups to become emotionally engaged can reduce feelings of anxiety and prejudice. In contrast, the main concern of teachers in the two Northern Ireland schools was to avoid such emotional or empathetic conversations. Discussions with pupils were deliberately and carefully managed to ensure that they didn’t stray into controversial or politically contentious areas for fear that this could cause ill-feeling or a “breakdown in relations” (Governor, School C). The general consensus was that tolerance and understanding should be encouraged through the presentation of information that might elicit opposing views; however, any discussions had to be handled carefully to ensure that they did not cause intergroup friction. Thus, the emotional engagement with conflict-related issues practised in both Israeli schools was largely absent in Northern Ireland. Yet there were dissenters to the school culture in both countries. In School G, the only remaining “founder teacher”25 expressed her growing disillusionment with the culture of evading controversial issues, arguing that, in essence, the school was not fully discharging its responsibility because it was failing to create an environment that encouraged mutual understanding and cultural awareness. Her central concern was that recently appointed teachers were notably less motivated to engage with mediation work than were teachers who were employed when the school was first established: The early days were wonderful … We were like pioneers and we (the teachers) worked hard to ensure that we improved relations between the Protestant and Catholic children … Now the teachers come in and it is just a job … They know they can get a permanent job here and promotion and they just don’t understand what the integrated ethos is all about and you know they are resentful of me when I try to make them see what we should be doing is making children aware. (Founder teacher, School G) The principal in School C expressed similar reservations. Here there was a growing divide between the teachers and governors, who believed that the school was fulfilling its objectives, and the principal and the Catholic teacher, who believed that more could be

23144_GB.book Page 161 Monday, February 9, 2009 11:46 AM

Contact and Culture

161

done to improve Protestant and Catholic perceptions of each other. Working relations between the principal and other staff had become increasingly strained since he had asked that teachers and governors place a greater priority on building tolerance and respect: There is a lack of real thinking here about the integrated ethos of the school. I mean they [Protestants and Catholics] don’t learn about one another, they just learn the basic curriculum together in the same classroom. The teachers certainly don’t see the need to do anything more. I have tried to address that with the teachers but I feel they don’t understand and I am feeling marginalized and it has been really stressful … Maybe it is me … I have been made to feel I am wrong or maybe it is the lack of training for the teachers. (Principal, School C) Having articulated his unease to staff and governors about the school’s approach to improving community relations, the principal at School C had found his views (and himself) increasingly sidelined by most of the other teachers and governors. Although teachers had attended one mediation training workshop, they had since refused to cooperate with community relations training on the basis that it was unnecessary.26 Interestingly, quite the reverse situation pertained in Israel. As already stated, the consensus among parents and teachers was that the school should openly address and discuss issues of difference and of similarity in an effort to promote understanding and tolerance. We found only one teacher (employed in School S) who fundamentally disagreed with this approach. Her method of developing tolerance and respect among the children correlated strongly with many of those we interviewed in Northern Ireland, where no explicit effort was made to discuss divisive issues: I teach my way … nothing from the conflict shows up in my classes. I am choosing specially stories about difference but I never talk about the differences in Palestinians and Jewish … never, never … This is a school. It won’t help to talk about it. My son is in the army and I don’t want to fight about his job with the others … It is a very heavy situation and I don’t think that it should be spoken about in the classroom. (Teacher, School S)

23144_GB.book Page 162 Monday, February 9, 2009 11:46 AM

162

Caitlin Donnelly and Joanne Hughes

While this teacher’s primary motive was to develop better interpersonal relations between Jews and Arabs, other teachers were concerned that her approach neglected to address some of the more fundamental issues that divide groups. Indeed, one of her colleagues drew attention to the inconsistency between the display of political symbols on her car (which could cause offence to Arabs) and her unwillingness to discuss and explain her political allegiances to the children: The teacher in question might not discuss politics but there is a sticker on her car of the Israeli army unit and all the children see it. And so I think that if you don’t want to be political then don’t display this or else explain it. The various approaches to Circle Time again stress participants’ different perspectives in each of the countries. The open and emotional discussion of conflict-related issues, a key priority in Israel, stands in direct contrast to the detached and aloof response of teachers in the Northern Ireland schools. The approach to Circle Time also illustrates some of the underlying challenges facing mixed-faith or integrated schools. The importance of establishing a coherent value system, for example, appears to be a key factor in determining the success of the schools, yet this is particularly difficult to establish when there is a discernible reluctance on the part of teachers to openly discuss and agree about the school’s role and purpose. The effects of this rather inhibited atmosphere, identified in the Northern Ireland schools, were further emphasized as participants reflected on the practice of celebrating cultural and political identity.

p u b l i c ly c e l e b r at i n g c u lt u r a l i d e n t i t y In both jurisdictions, important issues around the “norming” and “shaping” of values were revealed as research participants discussed the decisions that were made with respect to the outward expression of cultural identity. In the attempts to give prominence to cultural events in the Northern Ireland schools, it was apparent that both the type of event that was celebrated and the way in which the celebrations took place was subject to a subtle filtering process that seemed to reflect the cultural preferences of the most vociferous and influential staff members. The comments of one of the teachers and

23144_GB.book Page 163 Monday, February 9, 2009 11:46 AM

Contact and Culture

163

one of the parents suggested that there were very definite, though implicit, rules that dictated how individuals expressed their culture in the school. Below, one teacher considered how the achievements of a Gaelic football team (which mainly holds cultural and sporting significance for the Catholic community) were discussed in the school: It’s difficult to be open and relaxed about difference here like when Armagh won the Sam Maguire Cup – of course we were all delighted … well some of us were delighted anyway … Now the Sam Maguire was going around the various schools and we got the offer of it coming here and both the principal and myself thought it would be a good idea … a super idea … It was such an honour, but unfortunately some of the staff stood up and said no that this was against everything that they stood for and it did not come … On the Protestant side it [cultural expression] is weak too … I mean there is no reason why people can’t see sashes and can’t understand why people do what they do … all sorts of symbols should be here … You should not have people coming in here and being nothing … that is such a narrow path to follow and it’s not what integration is about. (Teacher, School G) However, another teacher from the Protestant tradition saw things quite differently: I don’t know what it would be like here if we were to introduce Gaelic football or celebrated that … We are very neutral and we don’t like things reflecting one side or the other … Our sports are very neutral, like we do hockey and football because that is what the kids want. (Teacher, School G) These comments raise some interesting issues around the presentation of neutrality in mixed-faith/cultural schools. In Northern Ireland, sports such as hockey and football are not generally perceived by the Catholic community as “neutral,” as this teacher implies, but, rather, are often regarded as having associations with Protestant culture. As the teacher’s conception of neutrality appears to have been arrived at without reference to other cultural groups (who might disagree with her beliefs), she remains ignorant of the fact that others may not share her definition of “neutral.” Neglecting to talk about controversial issues, therefore, has important ramifications in schools

23144_GB.book Page 164 Monday, February 9, 2009 11:46 AM

164

Caitlin Donnelly and Joanne Hughes

that are seeking to improve community relations. This is because school policies and decisions will inevitably be framed according to “the dominant perspective,” which is never challenged because the type of discussion that allows all school members to express their feelings and thoughts on the issue is not accorded legitimacy within the school culture. In School C there was a similar emphasis on creating a “neutral” atmosphere, and there was also a nervousness around the discussion of which symbols to display or which sporting achievements to celebrate. The easiest option, according to one of the governors, was to abolish all symbols in the school: Flags and emblems divide and mark territory and categorize so it is easier if we are not categorized … if we are all just seen as the same … so we, for example, have banned Celtic and Rangers shirts because it could stir trouble. Yet, while the elimination of symbols dealt with blatant sectarianism, the issue of cultural and political expression was far from resolved. Recently, for instance, it had become common for the older pupils to wear Celtic and Rangers football shirts under school uniforms (interview, principal, School C). At the time of research, the teachers and governors had agreed that they would ignore this behaviour. Although this response is understandable it may have the potential to fuel sectarian tendencies: pupils remain convinced that cultural symbols are displayed only as an act of defiance, intimidation, or prejudice and are never afforded the opportunity of understanding the real cultural significance of such artefacts. The pupils’ actions also suggest the need for a more proactive approach on the part of teachers, who may require training in the ways that cultural symbols are used and interpreted by each community in Northern Ireland. According recognition to cultural identity also proved difficult in Israel, particularly in School S, where the celebration of Independence Day/El Naqbe Day had prompted much debate among staff. Independence Day is a celebration of the renewal of the Jewish state in Israel in 1948, but for Arabs this date is referred to as El Naqbe Day, meaning “the disaster,” and marks the day that Arabs lost their land. In School S, the day had traditionally been marked by a discussion of family history; children were encouraged to write their family history and bring it to school, where a class mosaic

23144_GB.book Page 165 Monday, February 9, 2009 11:46 AM

Contact and Culture

165

would be created. Yet, as in Northern Ireland, there are often powerful factors that serve to complicate these types of public celebration. One of the Jewish parents reflected on the process of celebrating Independence Day in School S: Up until about two years ago we didn’t think … We just took Independence Day as the day that we discussed people’s need for independence We would talk about Jewish independence and the Palestinians losing their land, but, recently the Arabs have said, “Why are we adapting to the Hebrew calendar?” and we thought that this opened up an opportunity to talk about people’s need for independence … These discussions have made us think about how we, as Jews, can’t define Arabic culture according to Jewish rules. So we have begun to plan separate days for El Naqbe according to the Arabic culture. School E had already constructed such a model, in which the dates corresponding to the events of the Commemoration and Independence Day in the Jewish calendar and El Naqbe in the Arab calendar were celebrated in separate ceremonies on these particular remembrance dates. According to the Arab parents and teachers, the celebration of El Naqbe marked real progress in the school, not least because, in the institutions of Israel, the Arab minority have had to learn not to openly celebrate their national identity. Thus, even the idea of according legitimacy to the political values of the Arabic community marks a significant milestone. In many ways the experiences of the Israeli teachers in School S resonate with the experiences of the teachers in School G and School C, at least insofar as there was an assumed tendency to accord priority to one cultural perspective and to enshrine it in school policy as though it were the “only proper” way of doing things. Yet the response to the question of celebrating events in Israel further emphasized the disparity in practice between the schools. Rather than feeling restrained about addressing their concerns with Jewish colleague’s the Arab teachers and parents had arrived in School E with an expectation that their identity would be accorded respect and, during meetings with parents and staff, had asked openly for greater expression to be accorded to their national identity. While some of the Jews in School E had found Arabic political expression difficult to accept, the process of according equal status to the

23144_GB.book Page 166 Monday, February 9, 2009 11:46 AM

166

Caitlin Donnelly and Joanne Hughes

different celebrations and the cultural emphasis on open discussion forced them to reflect on their own views and misunderstandings of the Arab culture and to be more willing to empathize with the nationalistic expression of Arab identity.27 In essence, the school had provided a context that allowed individuals the space to reflect on and challenge their own conceptions of what was “normal,” which, in turn, allowed them to try to accept the right of each group to free cultural and political expression. Culture and contact: a symbiotic relationship? So far, the evidence presented has shown that the most striking variations in practice between the four schools were those between the schools in Israel and Northern Ireland. This lends some support to the idea posited earlier that different cultural contexts and orientations can influence the contact process. In keeping with the open and direct communication style, or doogri, which was identified as a defining facet of communication in Israel, both Israeli schools accorded considerable emphasis to frank and forthright patterns of discourse. In practice, this meant that the purpose of the school was clearly identified, and the measures taken to develop this purpose were clearly communicated and mutually understood. This seemed to facilitate an organizational culture that was “process oriented” as teachers and parents appeared to have reflected on the school’s vision and to agree on the best processes for developing more meaningful relationships between Jews and Arabs: We have a teacher meeting each week and we sit together to talk about how we are going to do things. And we have the Arabs sitting together saying what they are going to do each day and then the Jews sit together and say what they are going to do and then we all come together with the principals and talk about it … there is a lot of preparation before the classes and this raises our awareness … and allows us to plan. (Arab teacher, Neve Shalom) We have decided that this school is not to be a “melting-pot” of different cultures. We meet together, not only the teachers, but with the parents too to discuss how we should create a school that develops the different identities. (Co-principal, Jerusalem school)

23144_GB.book Page 167 Monday, February 9, 2009 11:46 AM

Contact and Culture

167

Various mechanisms were put in place to assist the schools to create better relations. For example, in School E, ongoing conflict resolution training was provided in the evenings and teachers received extra funding to attend this. There was also an emphasis on parental training and guidance, as parents in both schools were encouraged to attend workshops and meetings at least once per term so that they too could become conversant in the principles of contact and the goals and objectives of the school. Interviews with staff indicated that they frequently reflected upon and evaluated their approach to improving relations between Arabs and Jews. This inclination towards open discussion and critical reflection of the school’s mission stood in sharp contrast to the rather cautious practices that we observed in both of the Northern Ireland schools. The national cultural tendency towards reserve and reticence identified by Harris (1986) and Heaney (1975) appeared to define and permeate relationships in the schools, and there were implications for the schools’ ethos. For example, open discussion and debate about what the school should seek to achieve (in community relations terms) – a key priority in Israel – was not echoed in either of the Northern Ireland schools. When asked why the integrated ethos was not referred to in School C’s prospectus the principal explained: I haven’t really thought about it [the integrated ethos] and maybe that is where we are at the moment in terms of our understanding of it … I haven’t as much control over it as I would like. They [the teachers] see their priority as delivering the curriculum – the three Rs [reading, writing, and arithmetic] rather than rights and responsibilities. I tried to push the integrated ethos but I got knocked back … there is not really a whole-school approach to it … It is an individual class or teacher approach to it and they say that it is working well so don’t fix it … the kids come to school and they can play together and work together from 9:00 am to 3:00 pm so why fix it? The transformation route to educational integration inevitably presents ci schools with complex issues that can be difficult to address. These issues are primarily rooted in the problem of imposing “integrated status” on an existing segregated culture in which most of the teachers are drawn from one community and in which some are opposed to the transformation process. This is an enormous

23144_GB.book Page 168 Monday, February 9, 2009 11:46 AM

168

Caitlin Donnelly and Joanne Hughes

challenge that is unlikely to be met in the short term and that requires further research. However, the evidence from School G suggests that a school’s transforming status offers only a partial explanation as to why the integrated ethos might be underplayed in the Northern Ireland schools. Here, a strategic attempt at building better relations between the communities was not accorded high priority status by the majority of staff, parents, or governors. While one of the teachers had taken specific measures to engender greater understanding between the groups in her classroom, there was no consensus among staff or governors on how to further develop the school’s integrated ethos. The lack of focus had caused some disillusionment: I am discouraged by a lot of it … If I could get back into the Catholic School Sector then I would go … I wish the school was confident enough to have symbols and all for everybody to learn … but we have to be bland … The management [of the school] told us we had to be bland and that means not promoting anyone’s identity … keeping it all hidden … I do not think that is right … We don’t discuss what we do … I try and educate the children about other identities and things but I don’t know if what I do in my classroom is right or wrong … We don’t get direction … It is just not a priority to deal with the integrated thing … we used to have a lot of trust to talk about how to go about things but that has gone now. (Teacher, School G) In the Northern Ireland schools, the development of good intergroup relations was not regarded as a strategic issue or as a process issue but, rather, was treated as a matter of structure and procedure. Thus, the general assumption was that relations would naturally improve as long as the school enrolled and employed roughly equal numbers of Catholics and Protestants and formally declared itself integrated. Beyond an official commitment to integrated education, the teachers, parents, or governors had not discussed or collectively agreed upon a definition of integrated education. There had also been no agreement on the practical processes that should be taken to instil the values of tolerance and respect. While there are a variety of factors to explain the lack of strategic purpose, the deepseated fear among staff and governors of engaging with each other (or with pupils) on subjects that may lead to confrontation or engender disagreement seemed to have an effect. This not only

23144_GB.book Page 169 Monday, February 9, 2009 11:46 AM

Contact and Culture

169

encouraged teachers to avoid discussions about the conflict with pupils but also, perhaps more fundamentally, it lulled school members into a false sense of security: as controversial issues weren’t raised, there was little overt tension, leading participants to become complacent. Harmonious relationships were frequently used as evidence of the school’s success in building tolerance and mutual respect. Therefore, any discussion on how the school could better manage the process of improving relations was largely believed to be unnecessary.

conclusion This chapter explored the process of building intergroup contact in schools in order to encourage reconciliation between divided communities. The case studies drawn from Israel and Northern Ireland provided a unique insight into the factors that may impede or facilitate reconciliation in different cultural contexts. The data show that the contact process is not value-free or objective but, rather, is determined by the prevailing cultural conditions in each context or school. While there is no attempt to generalize, the evidence indicates that the school cultures reflected elements of the local culture in which they were located. Hence the rather direct patterns of dialogue – a key cultural trait in Israel – were also important and defining features in the schools in Israel. Group differences were explicit and upfront, and there was a clear emphasis on communicating, clarifying, and refining school goals. Considerable emphasis was placed on creating and reflecting on the processes that may further encourage reconciliation between Jews and Arabs. Equally, the reticence and reserve that was recognized as a cultural characteristic in Northern Ireland seemed to feed into a school environment in which parents, staff, and governors operated on the basis of implicit and assumed goals rather than on the basis of explicitly stated and shared objectives. Despite the widespread assumption that a collective definition of integrated education existed, when probed, participants revealed that a wide variety of competing interpretations prevailed. While individuals may have officially expressed a commitment to the objectives of integrated education, often what they were committed to departed significantly either from the official rhetoric of integrated education or from their colleagues’ interpretation of an integrated school. Yet because

23144_GB.book Page 170 Monday, February 9, 2009 11:46 AM

170

Caitlin Donnelly and Joanne Hughes

differences were never discussed, relations were defined by ambiguity and were often underpinned by latent tension. Yet it would be unwise to attribute approaches to the contact process solely to national variations in culture. Other separate but related factors also appeared to play a part in shaping behaviour and attitudes in the schools. One of the most significant emerging from the research is the distinct policy environments in which the schools operated. As a region of the United Kingdom, the Northern Ireland education system is recognized as one that has been strongly exposed to the principles of the “new public management.” The emphasis on performance measurement and marketization, which is endemic to this New Right philosophy, has an important influence on schools. It is widely documented, for example, that the approach to public management reform in the uk has been characterized by increased control and compliance with targets,28 and these themes seemed to assert themselves in the Northern Ireland schools. This was particularly evident when it became apparent that the schools tended to focus on the aspects of school activity that they knew the government would measure. That there is no clear evaluation or measurement scheme for appraising the extent to which the schools meet their community relations objectives means that this aspect of school life is relegated as schools are increasingly determined to meet the targets for which they are held accountable. While the Israeli public sector has also been restructured since the 1990s, the experience of reform here has been quite different from that in the uk. According to Itzhak, Rosenbloom, and Yaroni,29 Israel has not witnessed attempts to slavishly emulate private-sector practices in seeking to improve the public administration. Indeed, Geva-May (1999) sees the developments in the public administration in Israel as an example of how the transformation of public sectors in Western democracies from rigid, hierarchical bureaucratic forms of public administration to flexible, marketized forms of public management is not changing all national administrations in the same way.30 This is particularly true with respect to public-sector accountability. According to Geva-May, the practice of measuring public-sector performance (to ensure accountability) in Northern Ireland is not accorded the same high priority in Israel. The stress on incremental change and designing reforms to suit existing political and administrative cultures has produced an environment in which effective performance is defined from within the organization rather

23144_GB.book Page 171 Monday, February 9, 2009 11:46 AM

Contact and Culture

171

than by external agencies. Hence the Israeli schools appear to have more autonomy, opportunity, and incentive to define their own goals. This seemed important for the construction and development of the school ethos, not least because the schools had the latitude to focus on the processes of improving intergroup relations rather than placing all attention on the tangible demonstration of good performance. Hence, the standards and results orientation in the Northern Ireland schools, coupled with a strong “avoidance ethos,” left little room for participants to develop empathy with out-group members or to understand the uniqueness and differentiation among outgroup members. In other words, the factors that Kenworthy et al. (2004) cite as critical for improving intergroup relations appeared to be difficult to construct within the culture of the schools. In conclusion, then, this chapter shows how culture and policy can interact to influence the process and outcome of the contact hypothesis in mixed-faith schools. With further qualitative comparative research, the relationship between culture and the contact hypothesis should become clearer, thus providing opportunities for those installing contact programes to ensure that the process yields positive consequences.

notes Caitlin Donnelly is a lecturer in the School of Education, Queen’s University, Belfast. She has published in the area of school ethos, school governance, and integrated education in Northern Ireland. Joanne Hughes is a professor of education in the School of Education, Queen’s University, Belfast. Her research interests and publications are in the field of education and community relations policy in Northern Ireland. This chapter draws on arguments articulated in a previous paper presented in Comparative Education 42 (4). 1 F. Allport, The Nature of Prejudice Reading (ma: Addison–Wesley, 1954). 2 Third bilingual school opens its doors. See , viewed 19 September 2008. 3 Z. Bekerman and G. Horenczyk, “Arab-Jewish Bilingual Coeducation in Israel: A Long-term Approach to Inter-group Conflict Resolution,” Journal of Social Issues 60, 2 (2004): 389–404.

23144_GB.book Page 172 Monday, February 9, 2009 11:46 AM

172

Caitlin Donnelly and Joanne Hughes

4 D. Ben-Tal, “Israeli Bilingual School Bridges the Gap between ‘Shalom’ and ‘Salaam,’” article available at , viewed October 2004. 5 H.D. Forbes, “Ethnic Conflict and the Contact Hypothesis,” in The Psychology of Ethnic and Cultural conflict looking through American and Global Chaos, ed. Yueh Ting-Lee, Clark McCauley, Fathali Moghaddam and Stephen Worchel (Westport ct: Greenwood Publishing Group), 70. 6 J. Hughes, “Resolving Community Relations Problems in Northern Ireland: An Intra-community Approach,” Research in Social Movements, Conflict and Change (2003): 257–82. 7 P. Connolly with R. Maginn, Sectarianism, Children and Community Relations in Northern Ireland (Coleraine: Centre for the Study of Conflict, University of Ulster, 1999). 8 F. Allport, The Nature of Prejudice Reading (ma: Addison–Wesley, 1954). 9 D. Bramel, “The Strange Career of the Contact Hypothesis,” in The Psychology of Ethnic and Cultural conflict looking through American and Global Chaos, ed. Yueh Ting-Lee, Clark McCauley, Fathali Moghaddam and Stephen Worchel,50–67 (Westport ct: Greenwood Publishing Group, 2003). 10 D. Nesdale and P. Todd, “Effect of Contact on Intercultural Acceptance: A Field Study,” International Journal of Intercultural Relations 24, 3 (2000): 341–60. 11 J. Ray. “Racial Attitudes and the Contact Hypothesis,” Journal of Social Psychology 119, 3 (1983): 3–10. 12 Tami Lancut Leibovitz International Centre for image communication and etiquette, available at , viewed December 2004 13 Aviv Ben Zeev, “Understanding Culture Part Two: Israeli Communication Style and Boundaries,” available at , viewed June 2005. 14 S. Heaney, North (London: Faber and Faber, 1975). 15 A. Brown, Organisational Culture (London: F.T. Pitman, 1998). 16 G. Hofstede, “People Whose Ideas Influence Organisational Work,” article online, available at , viewed December 2004. 17 Sun, He-chuan (2003) “National Contexts and Effective School Improvement: An Exploratory Study in Eight European Countries, available at http://irs.ub.rug.nl/ppn/256205043>, viewed September 2008.

23144_GB.book Page 173 Monday, February 9, 2009 11:46 AM

Contact and Culture

173

18 As most controlled integrated schools were originally de facto Protestant schools they tend to enroll a higher proportion of Protestant pupils (see Alison Montgomery, Grace Fraser, Claire McGlynn, Alan Smith, and Anthony Gallagher. 2003. Integrated Schools in Northern Ireland: Integration in Practice Coleraine, Northern Ireland: University of Ulster, unesco Centre, 2003) 19 It is, however, not clear whether or how the de sanctions schools that do not meet the basic balance criteria (see Montgomery et al. Integrated Schools in Northern Ireland). 20 Although the Irish language can cause tension in Northern Ireland, issues around its use did not arise during the research. 21 Bekerman and Horenczyk, “Arab-Jewish Bilingual Coeducation in Israel.” 22 Ibid. 23 Jared B. Kenworthy, Rhiannon N. Turner, Miles Hewstone, Alberto Voci Italy (2004) “Inter-group Contact: When Does It Work and Why?” article on-line, available at , viewed October 2005. 24 C.D. Batson, S. Early, and G. Salvarani, “Perspective Taking: Imagining How Another Feels versus Imagining How You Would Feel,” Personality and Social Psychology Bulletin 23, 2 (1997): 751–8. 25 This teacher was among the first to be appointed to the school. 26 The onus is on integrated schools themselves to choose to allocate time and funding for teacher training: there is no statutory obligation on teachers to avail themselves of training, and there is often no explicit incentive for them to do. Thus, if teachers do not recognize the importance of community relations training (as in this study), they are unlikely to avail themselves of the opportunities provided by the Northern Ireland Council for Integrated Education or other mediation agencies. 27 Bekerman and Horenczyk, “Arab-Jewish Bilingual Coeducation in Israel.” 28 See C. Pollitt and G. Bouckaert, Public Management Reform: A Comparative Analysis (Oxford: Oxford University Press, 2000); and O. Hughes, Public Management and Administration, 3rd ed. (New York: Palgrave, 2003). 29 See G. Itzhak, D. Rosenbloom, and A. Yaroni, “Creating New Public Management Reforms Lessons from Israel” Administration and Society 30, 4 (1998): 393–420. 30 I. Geva-May, “Reinventing Government: The Israeli Exception – The Case of Political Cultures and Public Policy Making,” International Management Journal 2, 1 (1999): 112–26.

23144_GB.book Page 174 Monday, February 9, 2009 11:46 AM

9 What of Reconciliation? Traditional Mechanisms of Acknowledegment in Uganda JOANNA R. QUINN

i n t ro du c t i o n In any context of social and political transition after a period of mass atrocity, the steps a society takes to deal with the aftermath of such abuses are important. As distinct from the physical infrastructure, including the rebuilding of roads, schools, and hospitals, for example, the psycho-social and socio-political needs of those within the society are paramount. The social infrastructure, which might include the justice system, civil society, and participation in the political system, for example, is often also in disrepair. In most cases, the finite financial resources of the society enable it to tackle either the physical or the social. The trade-off in selecting one over the other can have obvious consequences. Yet engaging in the repair of the social infrastructure can have many and significant benefits. And societal acknowledgement appears to play a central role in this process. Postcolonial Uganda provides an interesting case within which to explore this type of social repair. The population of the country was subjected to a series of horrifying human rights atrocities at the hands of brutal leaders, including Milton Obote, Idi Amin, and others during the period immediately following Uganda’s declaration of independence and for much of the next twenty-five years. In 1986, Yoweri Museveni was elected president and called a halt to these vicious crimes. Among his efforts in this regard was the establishment of a truth commission, the Commission of Inquiry into Violations of Human Rights, which operated from 1986 to 1994. However, the commission was beset by many and significant obstacles, including

23144_GB.book Page 175 Monday, February 9, 2009 11:46 AM

What of Reconciliation?

175

an extreme shortage of funding and a paucity of political will. In the end, the social and political outcome of the Ugandan truth commission was negligible. Building on an existing study of acknowledgement and the Ugandan truth commission, this chapter looks at the possibility of using traditional practices instead of an externally imposed body like the truth commission to effect a process of societal reconciliation and acknowledgement. Ugandan society is rich with traditional practices, symbols, rites, and ceremonies, many of which are explored below and all of which could prove useful in restoring and rebuilding society. The possibilities associated with the use of such informal traditional mechanisms of acknowledgement are varied but promising. So, too, are the number of impediments associated with the potential use of traditional mechanisms. These are explored in the chapter that follows.

b ac k g ro u n d a n d c u r r e n t u g a n da n c o n f l i c t In October 1962, Uganda declared independence from Britain. Its first president, Milton Obote, held office from 1962 to 1971. Life under Obote and his successors turned out to be very different than it had been under the British. From 1962 until 1986, Uganda underwent a series of coups, culminating in a great concentration of power in the hands of the head of state. Obote’s first term in power was characterized by significant numbers of riots and armed attacks. As it turned out, Obote’s term in office merely foreshadowed the violence that would ensue in only a few short years. In 1969, the political system underwent tremendous change when Obote banned all political parties other than his own in order to prolong the state of emergency that had been declared in 1966. Obote’s term in office, however, soon drew to an abrupt halt. In 1971, General Idi Amin Dada overthrew Obote, suspended the Constitution, and ruled under a provisional government structure until 1979. To sustain his authority, Amin, who came to be known as “the butcher,” carried out a reign of terror, systematically and brutally murdering and torturing those he considered to be standing in his way. In 1972, Amin expelled the more than seventy thousand ethnic Asians living in Uganda and confiscated their property. Violence was rampant during this period, and the military and paramilitary mechanisms of the state conducted brutal campaigns of

23144_GB.book Page 176 Monday, February 9, 2009 11:46 AM

176

Joanna R. Quinn

torture. “The butcher’s” lasting legacy is one of heinous torture and brutal killings. It is estimated that approximately 500,000 Ugandans were killed by Amin and his supporters. Amin was defeated in 1979 with the assistance of Tanzanian intervention. Interim governments were appointed in 1979 and 1980. From 1980 to 1985, Obote returned to power. The country was once again beleaguered by rampant human rights abuses, this time far worse than anything it had experienced during his first term in office. The paramilitary apparatus of the state again began its practice of routinely violating human rights by means of rape, torture, murder, looting, and destruction of property. The scale of repression and abuse was roughly the same as it had been under Amin. The only difference for many Ugandans was that their former leader (Amin) had been supplanted by another (Obote), who came to office with a heightened and reinvigorated fury. It is now estimated that between 320,000 and 500,000 people were killed during Obote’s second term in office. Obote was overthrown in July 1985. Yoweri Museveni, leader of the coup that overthrew Obote, came to power in January 1986, abolishing all political parties except the National Resistance Movement (nrm) that had made his victory possible. Conditions began to improve in Uganda after Museveni took power. The human rights abuses have abated somewhat, and Ugandans now enjoy a relative degree of freedom unknown to them under the three postindependence regimes of Obote and Amin. But not everyone supports Museveni. There have been more than twenty insurgencies since the nrm came to power in 1986.1 One of the most deadly and longest-lasting has been the twenty-two-year rebellion of the Lord’s Resistance Army (lra) in the Acholi subregion of Northern Uganda.2 The lra, which takes its name from an expressed desire to live by the Ten Commandments, is fighting against Museveni’s control of the north. It is widely estimated that thirty thousand children from that region have been abducted by the rebels,3 the boys to act as soldiers, the girls to be used as sex slaves and as carriers of supplies. More than 1.8 million people from the region have been forced to flee their homes and currently live in several internally displaced persons (idps) camps throughout the region.4 Fighting and abduction continue, although throughout late 2004 and early 2005 various cease-fires have been declared and negotiations are ongoing, even though similar initiatives, including the Peace Stadium Accord (1988), the Addis Ababa Accord (1990), and earlier

23144_GB.book Page 177 Monday, February 9, 2009 11:46 AM

What of Reconciliation?

177

peace talks (1994), failed.5 In 2000, the government enacted the Amnesty Act. By January 2005, the Amnesty Commission had received 14,695 applications for amnesty.6 The International Criminal Court began investigating possible war crimes committed in the war between the lra and government forces in July 2004. It is uncertain how far such investigations will go, as Acholi leaders are calling for a halt to proceedings, while the government is pressing for indictments.7 Still, the government allocated only $164,239 Canadian, which represents a scant 0.01 percent of the national budget, to reconstruction efforts in Northern Uganda in the 2004–05 budget.8 Another area of instability within Uganda is Karamoja, a large geographic area located in the northeast of the country. The Karamojong live separately from the rest of Uganda in a traditional and highly stratified society centred around cattle, which figure prominently in all aspects of life, including bride price, status, and religious and ceremonial practice.9 Traditionally, cattle raiding was carried out with spears, but in modern times the Karamojong have adopted the use of automatic weapons, variously stolen from or supplied by the government in Kampala and other allies, including the Sudan People’s Liberation Army and others in Somalia and Kenya: “The current government of President Yoweri Museveni allowed the Karamojong to retain their arms in order to protect themselves from external raids by the Turkana and Pokot in neighbouring Kenya.”10 But the Karamojong have begun to raid farther afield. The Department for Karamoja Affairs “was set up to address the special social, economic and security needs of the area and its neighbourhood.”11 In 2000, it was estimated that the Karamojong people possessed between 100,000 and 150,000 weapons.12 In December 2000, the government passed the Disarmament Act, offering iron sheets and ox-ploughs in exchange for weapons. The program was initially resisted by the Karamojong, and in the end fewer than ten thousand guns were ever recovered.13 In 2004, the government continued to pursue policies of development, including agriculture, employment, and education in Karamoja, along with reconciliation.14 Yet, Museveni maintained a hard line on the issue: “This is the last warning to those fools. We are preparing a last dose for Kony and those holding illegal guns in Karamoja. We want peace everywhere.”15 Still, budget allocations for Karamoja amounted to $87,075, which represents just 0.00015 percent of the total national budget.16

23144_GB.book Page 178 Monday, February 9, 2009 11:46 AM

178

Joanna R. Quinn

These are just two of the conflicts that have played out and continue in the country. Ugandans are still living with the legacy of the one million people who were killed between 1962 and 1986, and real rebuilding has never truly begun. The Ministry of State for Luweero Triangle, for example, is only just now attending to rebuilding the houses and schools destroyed between 1980 and 1985. Uganda itself is a country much in need of healing, both physically and socially. It is one of the states in the world most badly affected by hiv/aids. ngos have been forced to assume much of the encumbrance of the provision and contribution of support17 as the state itself has failed to provide much of what is needed due, in part, to its inability to afford financial assistance.18 And, although its government boasts of the country as a “forged union of many peoples … [who] live and work together as one people, all proud to be Ugandans, while each cherishes their history and traditions,”19 the reality is far different.

a c k n ow l e d e g m e n t a n d i t s r e l at i o n s h i p t o r e c o n c i l i at i o n Getting past that reality is very difficult. In countries like Uganda, where chronic conflict has been ongoing for long periods of time, the rebuilding of the society, both physically and socially, is an especially difficult task. And, although there seem to be no shortage of donors ready and willing to provide funds to repair the physical infrastructure in its many forms, and to address the outward signs of poverty and destitution, the repair of the social infrastructure is often overlooked. Reckoning with past injustices, however, is an important step in the process of acknowledgement and forgiveness, leading to the rebuilding of a viable democracy, a restructured judicial system, and strengthened networks of civic engagement, all of which may lead, ultimately, to increased levels of social trust. And these are particularly important in overcoming the causes of conflict within divided transitional societies. As I have written elsewhere, there is a strong and causal relationship between acknowledgement and forgiveness, social trust, democracy, and reconciliation. Acknowledging the events of the past and one’s complicity in them is particularly important. My theory of acknowledgement presupposes that acknowledgement is necessarily a multifaceted process, comprised of separate and distinct acts to be undertaken by individuals within a given society.20 I have

23144_GB.book Page 179 Monday, February 9, 2009 11:46 AM

What of Reconciliation?

179

identified several of the components of acknowledgement, all of which are important in moving beyond acknowledgement to strengthen those aspects of civil society that are necessary in order for it to function as a cohesive whole. It is my hypothesis that acknowledgement is the one stage through which any successful process of societal recovery must pass. In order for any society to begin to move forward, it must come to terms with its past. By this, I mean that people must be called to account for past events. In facing the details of history, past events can be revisited, evidence uncovered, people and institutions potentially held accountable, and a rationale of deterrence made possible.21 Some, however, believe that such details should instead be left well enough alone.22 And, while it is true that history tends to alter memory, leading to questions of accuracy23 and credibility,24 both individuals and societies appear, in many cases, to benefit from talking about those events that have taken place. It is in the open discussion of these atrocities, in the revealing of the criminal actions of the perpetrator, that the victim can begin to take control of her circumstances. By implication, a society filled with powerless individual victims comprises a suffering, struggling whole. If wrongs are never discussed, the dregs of past atrocities are simply left to fester under the surface of that society. Similarly, the expression of emotion, although terribly difficult in many cases, is a healthy response. A simple accounting of the stages of grieving25 – denial/isolation, anger, bargaining, depression, and acceptance – reveals that individuals must go through a wide range of emotions before they are able to move beyond the overwhelming feelings of loss experienced in traumatic situations. The theory cited here was developed around the grieving process of “ordinary” individuals, who deal with many of the same feelings as do those people in societies recovering from an extended period of atrocity:26 feelings of loss, lack of self-worth/self-respect,27 and helplessness.28 Often, however, victims and their families are forced to carry on with the tasks of everyday living without benefit of having reflected upon the past. These people may consciously remember nothing of past events,29 and the daily trauma they continue to experience may simply become normalized.30 Or else a conscious decision is made to reject the truth surrounding the past, as witnessed in denial and revisionism,31 and this denial becomes internalized as a means of coping, in much the same manner as occurs with those who normalize events. Not until

23144_GB.book Page 180 Monday, February 9, 2009 11:46 AM

180

Joanna R. Quinn

the facts are recognized and people have come to terms with the events of the past can the society begin to grieve its losses. The combination of coming to terms with the past and one’s emotional response to it hinges upon memory and the remembering of past events. Past recollections form a critical component of the acknowledgement process. Individual memories, in fact, appear to become situated “within the larger narrative of the community,”32 forming a cultural33 or social34 collective memory. In this way, remembering by individuals contributes to the creation of a selfportrait of the larger society. Others, however, disagree, citing the recollection of past events as divisive35 and as having the capacity to jeopardize the future of the society.36 Nonetheless, memory has long been recognized as a fundamental element of the building of stronger societies.37 This mental act of remembering is often complemented by its physical manifestation: memorialization and commemoration of specific events or people. In many societies, monuments and memorials are erected to honour both victims and survivors. These are sometimes hospitals or schools named after war heroes or former leaders, or they are actual memorial markers raised in tribute (such as the Vietnam War Memorial or the military cemeteries of the British Imperial War Graves Commission). In other instances, days of remembrance are held to bring to mind past events. Israel, for example, observes Yom Hashoa in memory of those lost in the Holocaust. The physicality of memory serves as an indication of social acknowledgement, bearing in mind the inclination of statespeople to revise events to suit the victor. Once acknowledgement, in its many forms and guises, has taken place, the barriers to forgiveness are significantly reduced. And genuine forgiveness, the setting free or dismissal of the debt of the perpetrator, can then transpire. This is not to suggest that, with forgiveness, hurts magically disappear or that the victim will necessarily be able to forget the offence; rather, through the process of forgiving, the victim is granted some measure of grace and comfort.38 The benefit of forgiveness, then, has much less to do with the perpetrator than it does with the victim, and it is of potentially more benefit to the person engaged in forgiveness than to other people. This is because the carrying of grudges and outright discrimination and bitterness that come with resentment and unforgiveness

23144_GB.book Page 181 Monday, February 9, 2009 11:46 AM

What of Reconciliation?

181

are the stuff that keeps acknowledgement from taking hold and truth-telling from having any meaningful impact. And this setting free enables the victim to start again to pursue relationships of camaraderie and friendship. Moreover, through the establishment of such interaction, the victim is able to establish bonds of trust and begins to participate in various social interactions and organizations.39 For it appears that, in societies devastated by mass atrocity, the ability to trust is one of the parts of civil society that is most badly damaged. Without trust, there is apt to be distrust or worse. People inevitably stop believing their neighbours, stop accepting the word of their superiors, and stop participating in the stuff of civil society.40 They become afraid and suspicious, and they begin to keep to themselves, eschewing community projects. Trust, that sentiment that informs interactions between and among individuals, has been identified as a “functional prerequisite for [even] the possibility of a society.”41 With little difficulty, it may be ascribed equally to various groups.42 Furthermore, trust has also been identified as an essential element in the development of networks of civic engagement43 and in the creation of strong political structures.44 It is also fundamental to the sustainable cooperation that must exist in order for any kind of restoration of relationships or acknowledgement of past events – that is, reconciliation – to occur. A society’s ability to begin to trust, and the connection of such interpersonal trust with the laying of the foundations of democratic participation, the strengthening of civic institutions, and the reestablishment of social relationships, then, can have significant implications for that society’s transition from being divided and dysfunctional to being cohesive and functional. Acknowledgement, in and of itself, is not an end point, as are strengthened civic institutions, for example. Nor is it, in and of itself, able to bring about some kind of meaningful change. Rather, it forms a necessary but not sufficient condition for outcomes such as democratization, judicial reform, and reconciliation, along with social trust, to be realized. Ultimately, the effect of the progression of acknowledgement, as outlined above, is to make possible both the act and the process of forgiveness.45 And forgiveness itself, through acknowledgement, makes possible the creation of the bonds of social capital and social trust that foster those democratic goals sought by transitional societies.

23144_GB.book Page 182 Monday, February 9, 2009 11:46 AM

182

Joanna R. Quinn

What, then, of this thing called reconciliation? In past writing and teaching, I have been reluctant to address the issue of reconciliation for a couple of reasons: first, even with the innumerable articles and books available on the subject, the definition of reconciliation has proven illusive, and I have never understood completely just what “reconciliation” was supposed to be; second, especially in light of the South African Truth and Reconciliation Commission (among others) and its emphasis on reconciliation, I have become sceptical of any government’s ability to quite literally mandate this kind of difficult interpersonal process and to expect real and successful outcomes. While the state can make right the conditions to support and encourage this kind of healing, it simply cannot do more. I have come to see the use of the term “reconciliation” as something of a catch-all, an old expression appropriated simply for the sake of modern convenience without the trappings of its original meaning. It seems to me, first, that any notion of biblical connection or significance, which formed my original basis of understanding and perhaps my later confusion regarding this term, has been removed from its very essence. As de Gruchy, points out, in Christian terms, reconciliation is meant to “express the sum total of what Christians believe about God’s saving work in Jesus Christ … and is interchangeable with ‘salvation,’ ‘redemption,’ or ‘atonement’… [It also describes] God’s redemptive activity in its different aspects.”46 Clearly, this is not what is meant by the current secular usage of the term. Dwyer has offered a definition of reconciliation that focuses, instead, on the interpersonal understandings of those in conflict with each other. Reconciliation, she says, involves “bringing apparently incompatible descriptions of events into narrative equilibrium.”47 Yet this “narrative incorporation”48 does not address those physical aspects of reconciliation mentioned above. So this definition, too, falls short. Another conception of reconciliation comes from its applied use. Waliggo has delineated a typology of reconciliation that includes four categories: (1) fully Christian reconciliation conducted using signs, symbols, prayers, and rituals of the church; (2) fully African traditional reconciliation, “done by those supposed to do it, with all the signs, symbols, actions, and rituals that go with it in each cultural area”; (3) Christian-African tradition, a blend of the first two; and (4) fully secular, modern, professional reconciliation such as

23144_GB.book Page 183 Monday, February 9, 2009 11:46 AM

What of Reconciliation?

183

that carried out by the myriad of truth commissions.49 Even this does not fully address the use of the term. Reconciliation is articulated very differently in a variety of circumstances. Those who use it seem to be aiming broadly at the same goal. But, especially because it appears that the restoration and rebuilding programs being written about and attempted in Uganda and elsewhere are premised on and seem to hinge on this behemoth (i.e., the term “reconciliation”), no one seems yet to have articulated or satisfactorily understood that its definition is critical. In Uganda, for example, the people with whom I spoke use the term to mean a variety of things, including: the actual resolution of conflict, or bringing the war to an end; building a lasting peace; reintegrating rebel soldiers and child abductees; amnesty; reconstruction of the physical property damaged in the conflict; compensation; and repaired relationships. Clearly, these are disparate in both outcome and meaning. It seems that what they do have in common is their quest to capture those bonds of social capital and social trust mentioned above. This thing at which they are aiming, which might more appropriately be called social cohesion, is intertwined with the notion of social capital: “Social capital forms a subset of the notion of social cohesion. Social cohesion refers to two broader intertwined features of society: (1) the absence of latent conflict … and (2) the presence of strong social bonds – measured by levels of trust and norms of reciprocity, the abundance of associations that bridge social divisions (civic society), and the presence of institutions of conflict management, e.g., responsive democracy, an independent judiciary, and an independent media.”50 Social cohesion is the “key intervening variable between social capital and violent conflict.”51 It is, effectively, reconciliation. This being the case, I find myself better able to cope with the use of the term “reconciliation” and all that it implies. This is not to suggest that reconciliation will be easily attainable; rather, recent studies have pointed to the extreme difficulty that Ugandans and others who have lived through prolonged conflict will encounter. Moser and Holland found that declining social capital leads to a climate of fear that directly impedes citizens’ ability to participate and cooperate.52 And Colletta and Cullen have described the detrimental effect of violent conflict: “This damage to a nation’s social capital – the norms, values and social relations that bond communities

23144_GB.book Page 184 Monday, February 9, 2009 11:46 AM

184

Joanna R. Quinn

together, as well as the bridges between communal groups (civil society) and the state – impedes the ability of either communal groups or the state to recover after hostilities cease.”53 Nonetheless, agencies have begun to recognize this and to plan for it: “Development needs to nurture and transform social capital in order to create and maintain the mechanisms and institutions necessary for strengthening social cohesion, managing diversity, preventing violent conflict, and sustaining peace and reconciliation.”54 With this in mind, programs that are being developed should, then, allow countries like Uganda to begin to finally get past their own reality.

u g a n da’ s t r u t h c o m m i s s i o n As part of an earlier study, in order to test the kinds of assumptions that I had made about acknowledgement, I looked at the Commission of Inquiry into Violations of Human Rights (civhr), which was appointed in 1986 and finished its work in 1994. In setting about rebuilding the shattered nation in 1986, Museveni outlined a ten-point program in which he emphasized democracy, security, national unity, independence, restoring and rehabilitating social services, ending corruption and misuse of power, dealing with the plight of displaced people, pan-African cooperation, and pursuing a mixed economy as the basic tenets of his philosophy.55 In pursuit of these goals, Museveni established, among other institutions, a truth commission to address the wrongs that had been perpetrated. The role of the civhr was to inquire into “the causes and circumstances” surrounding mass murders, arbitrary arrests, the role of law enforcement agents and the state security agencies, and discrimination that occurred between 1962 and January 1986, when Museveni and the nrm assumed power. It was also meant to suggest ways of preventing such abuses from recurring.56 The civhr was also expected to determine the role of various state institutions in both perpetrating and hiding gross human rights violations, and the government promised that its results and findings would be treated seriously. In seeking to understand this process much more clearly, I spent nearly three months in Uganda in the summer of 2001. While there, I carried out archival research and conducted a series of open-ended interviews with members of the Ugandan elite that focused specifically upon the Ugandan experience of coming to terms with its past,

23144_GB.book Page 185 Monday, February 9, 2009 11:46 AM

What of Reconciliation?

185

and which looked for evidence of acknowledgement and the social trust that might be expected to result from the process. I spoke with truth commissioners, government and opposition officials, members of the ngo community, and representatives of civil society. In the end, I was able to interview nearly forty people. To date, this represents the only study that has ever been undertaken of the Ugandan civhr. But, like so many institutions implemented by regimes facing deficits in virtually all areas, the path of the civhr was not easy. The commission faced a number of significant impediments throughout its difficult existence. Although it had been scheduled to complete its work within a couple of years, it did not actually finish until eight years later – in 1994. Despite the best efforts of those who saw the work of the commissions through to their final conclusion, ultimately the civhr faced political and practical limitations that would prove to be its undoing. One of the biggest institutional constraints that beleaguered the civhr was adequate funding. The government, which appointed the commission, was neither willing nor able to contribute the monies required to employ staff, acquire office space, or conduct investigations. As a result, the civhr was chronically short of staff. Even the basics, such as stationery, were in short supply. And the printing of the commission’s findings was significantly delayed until money could be found. In the end, it was the international donor community, both governmental and ngo, that came to the rescue. It was only after several large infusions of cash, along with supplies and expertise, were dispatched that the work was able to continue. Similarly, the overall capacity of the civhr was extremely limited. The commissioners themselves had left professional, prominent, and often well-paying jobs, and had set aside family and other social obligations in order to carry out the work of the commission. Moreover, their work was not easy. They faced significant opposition both from those inside and from those outside the very governments that had appointed them, which often translated into death threats and the disappearance of key evidence. Other agencies that should have been able to provide support were themselves in disarray and were unable to provide the institutional safeguards that are necessary to ensure the success of such commissions. And the public at large, which had for so long been disenfranchised, seemed reluctant to talk about what had happened and sensed that their participation in the work of the commissions could lead to renewed retribution.

23144_GB.book Page 186 Monday, February 9, 2009 11:46 AM

186

Joanna R. Quinn

Time itself proved to be an insurmountable difficulty. Particularly when the abuses under consideration were sometimes more than twenty years old, details had become blurry and evidence that might once have existed in support of the testimony given had disappeared. And the various delays faced by the commission contributed substantially to this. Additionally, a lack of political will and commitment to the commission’s mandate severely limited its success. The civhr quickly realized that the government, under whose auspices it had, in fact, been created, had merely been paying lip service to the idea of a commission. And it found it extremely difficult to investigate the former political elites; indeed, it was mostly unable to do so.57 Ultimately, the civhr’s legacy is small. The majority of Ugandans appear to be unaware of the commission and its work. And those who do know of it are critical of its findings, which they see as inherently biased towards the nrm. It seems that there has been little, if any, acknowledgement, either with regard to influencing the outcome of the commission or with regard to the subsequent rebuilding undertaken in its wake. In fact, many see the civhr as a bureaucratic panacea that turned out to be almost universally unsuccessful for a variety of reasons, including those listed above. The modest and still-growing civil society indicates that some acknowledgement had taken place. But democracy was not firmly entrenched, and Museveni shows no sign of allowing it to take hold. As a result, growth of civil society in the country remains stunted. It seems that the civhr was unable to effect real and lasting political stability, let alone foster social trust and social capital.

c u s t o m a ry m e c h a n i s m s o f a c k n ow l e d e g m e n t Yet many of those to whom I spoke in Uganda in 2001 suggested that some form of acknowledgement had, in fact, taken place. Although there was no evidence of the cultivation of acknowledgement through the formal mechanism of the civhr, it seemed likely that some of the traditional and informal practices that are carried out within the country might be capable of producing social acknowledgement. It also appears that, even without the formal structure of the civhr, some communities might have been acknowledging the events of the past and coming to terms with them. I thought an

23144_GB.book Page 187 Monday, February 9, 2009 11:46 AM

What of Reconciliation?

187

exploration of traditional acknowledgement in Uganda could provide much needed insight into one of the reasons that truth commissions and other institutions often called upon in the rebuilding process are not effective. In October and November of 2004, I returned to Uganda for a period of six weeks to study first-hand these informal mechanisms of acknowledgement, both in areas where traditional acknowledgement has been reported and those in which it has not. I interviewed more than forty-five people, mostly society’s elites and leaders, about such alternative mechanisms of acknowledgement. These people included leaders of the communities involved, officials of the Roman Catholic Church and Africa Inland Church, the Uganda Human Rights Commission, and various secretaries of state and other government officials as well as national and international aid workers, missionaries, and other support organizations, including Africa Inland Mission and World Vision. I also spoke directly to some of the beneficiaries of such acknowledgement: people who have been received back into their communities and their families. Certainly, this kind of traditional acknowledgement has been used widely in other societies. Notable examples of traditional acknowledgement found in North America include Aboriginal healing circles, such as the one established in Hollow Water, Manitoba,58 and other community justice fora, including the traditional elders court in Attawapiskat, Ontario,59 and the Sandy Lake, Ontario, community court,60 all of which are supported by special programming provided by the Royal Canadian Mounted Police61 and other federal agencies. The Navajo Tribal Courts in the United States hear civil cases that are decided upon by a panel of elected adjudicators according to Navajo common law.62 Traditional justice is not used only in North America. In New Zealand, Family Group Conferences, based on traditional Maori principles, including teaching, settlement, and community restoration, have been available in the place of Western-based sentencing since 1989.63 And, in the Highlands of Papua New Guinea, village courts adjudicate according to customary law.64 Many of these mechanisms also exist in various African countries: “Each community or society has its own set form of restitution … for various offences, both legal and moral.”65 In response to the long-running conflict in Angola, many idps there have turned to conselho, traditional psychological healing based on “the general

23144_GB.book Page 188 Monday, February 9, 2009 11:46 AM

188

Joanna R. Quinn

encouragement given to people to abandon the thoughts and memories of war and losses.”66 In both Angola and Mozambique, holistic purification and cleansing rituals, attended by the family and broader community, are carried out in welcoming ex-combatant child soldiers back into the community.67 A variety of traditional conflict resolution mechanisms are used by the Pokot, Turkana, Samburu, and Marakwet tribes of western Kenya.68 In Sierra Leone, group ceremonies are held to “cool the heart[s]” of child ex-combatants upon their return to their home communities.69 Inkundla in South Africa comprises a series of traditional small claims courts.70 And Rwanda still utilizes its tradition of gacaca, a form of traditional dispute resolution mediated by chiefs and tribal elders, most recently revamped, formalized, and used to deal with crimes of genocide.71 Many of these same kinds of traditional mechanisms operate in Uganda. Article 129 of the 1995 Constitution provides for Local Council (lc) Courts72 to operate at the sub-county, parish, and village levels.73 Under the subsequent Children Statute, 1996, these courts have the authority to mandate any number of things, including reconciliation, compensation, restitution, and apology.74 And within many of the fifty-six different ethnic groups across Uganda, traditional acknowledgement customs and ceremonies are practised. Among the Karamojong, the akiriket councils of elders adjudicate disputes according to traditional custom,75 which includes cultural teaching and ritual cleansing ceremonies.76 The Acholi carry out ceremonies of mato oput (drinking the bitter herb), and nyouo tong gweno (a welcome ceremony in which an egg is stepped on on top of an opobo twig) in welcoming ex-combatant child soldiers home after they have been decommissioned.77 The Baganda use the traditional Kitewuliza, a juridical process with a strong element of reconciliation, to bring about justice.78 The Lugbara, in the northwest of the country, maintain a system of elder mediation in family, clan, and interclan conflict.79 And, in 1985, an intertribal reconciliation ceremony, gomo tong (the bending of spears), was held to signify that “from that time there would be no war or fighting between Acholi and Madi, Kakwa, Lugbara or Alur of West Nile.”80 In other areas of the country, however, these institutions are no longer so vibrant. Among the Sabiny tribe in the northeast there is no longer a council of elders, although the clan system is still very

23144_GB.book Page 189 Monday, February 9, 2009 11:46 AM

What of Reconciliation?

189

active: “These ceremonies are not widely practiced now – the cows are no longer there. But the clan system of punishment is still strong. It is still the role of the clan to make sure that the perpetrator faces repercussions.”81 Indeed, the Bakiga, a tribe from the southwest of the country, used to regularly consult the abakuru b’emiryango (council of heads of lineages), which would adjudicate cases of dispute or wrongdoing, although this is no longer done.82 Even in areas where these ceremonies and rites are no longer regularly practised, however, there remains a common understanding of the meanings and symbolism behind them: “The situation is complicated because of diversity of ethnicity but there is some commonality. The shedding of blood, for example, is a common element throughout all districts in Uganda; it cuts across all groups.”83 In other cases, eating and drinking together, the shaking of hands, and the exchange of gifts can all symbolize the restoration of peace, as can the slaughter of animals, the exchange of dried coffee berries, intermarriage, and blood relationships.84 Although some argue differently,85 my interviewees stated that the younger generation maintains a healthy respect for traditional institutions: Under Obote I, Obote II, that was the climax of leaving out those traditional things, because people had to find their own way to survive. Those who are there, some do remember, but many more who have gone to Kenya do remember more those traditional methods. My dad, in particular, has some memory of what happened with traditions, and my grandma also – she is in her eighties, I think. The new generation does not belong anywhere. They are neither new nor old. But everyone respects these traditions.86 However, “the traditional values, cultural knowledge and social institutions of everyday life are threatened.”87 And the social meanings of the ceremonies that are still practised appear, in some cases, to be shifting88 as people move farther away from their gemeinschaft communities. This is especially true in regions where large numbers of people have been forced out of their homes and into idp camps.89 As another Sabiny interviewee put it: “Circumcision is the main ceremony for our people. People are taught how to behave. Teachings are taught before and after the ceremony. You are becoming an adult. So the ceremonies are a period of education for

23144_GB.book Page 190 Monday, February 9, 2009 11:46 AM

190

Joanna R. Quinn

a people to teach about how to raise children and live in harmony and how to behave in society. But now many are not cut, so we do not know. Maybe they should leave out cutting and still have these teachings.” The same growing lack of cultural education holds true for custom and ceremony among the Karamojong90 and also among the Acholi.91 Yet, even institutions no longer in common use provide strong examples of social structures that might still be used to maintain order and to bring some relief to those struggling in postconflict communities: It would be wrong to imagine that everything traditional has been changed or forgotten so much that no traces of it are to be found. If anything, the changes are generally on the surface, affecting the material side of life, and only beginning to reach the deeper levels of the thinking pattern, language content, mental images, emotions, beliefs and response in situations of need. Traditional concepts still form the essential background of many African peoples, though obviously this differs from individual to individual and from place to place. I believe … that the majority of our people with little or no formal education still hold on to their traditional corpus of beliefs.92 These kinds of ceremonies “help us deepen our experience of events, cope with them, humanize them.”93 And reconciliation continues to be an “essential and final part of peaceful settlement of conflict.”94 Altogether, these ceremonies have many things in common. The most prominent is their community-based restorative approach to justice and punishment: these communities “view a wrongdoing as a misbehaviour which requires teaching or an illness which requires healing.”95 They “emphasiz[e] restoration to harmony with others and the community.”96 Krog describes the process as follows: If you have harmed my child, it is because something has gone wrong with you to such an extent that you could do that. That which has gone wrong for you is now harming my life. It means I cannot be the kind of human being I want to be because you are no longer human. So it is in my interest – my interest – as the victim, to get you and assist you to get your humanity back so that I can become human again … This is a fundamentally different

23144_GB.book Page 191 Monday, February 9, 2009 11:46 AM

What of Reconciliation?

191

way of looking at a community and looking at what to do with evil. African traditional religion has no such thing as Satan. The biggest evil is to live in complete disregard from others.97 Therefore, “the Community exercises responsibility of being part and parcel of the clan because whatever happens to the individual happens to the clan, and whatever happens to the clan happens to the individual.”98 And so, it seems that these kinds of institutions ought to be fostered and encouraged. Waliggo calls for a system based on African traditional values and institutions: “No society can build a civilization on borrowed values. In order for Africa to have a real civilization for peace, tolerance, world understanding and democracy, human rights, authentic integral liberation and development, Africa must look at its own heritage, and basing on its best values in that heritage, build the real and permanent culture and civilization of peace and peaceful resolution of conflicts.”99 Many others advocated the careful use of both Western and traditional methods. Still others offered the following: “People feel that Western methods are more sophisticated so traditional methods are not being used”;100 “Maybe the Western method on its own, or the traditional method on its own, will suffice. Or maybe we need a blend”;101 “We should maybe look back at what went wrong, and how people used to solve issues and use traditional roots to inform current policies.”102

impediments to the su ccess o f t r a d i t i o n a l a c k n ow l e d g e m e n t Many different people and groups have begun to call for the implementation of a national program of reconciliation. A conference on this issue was held in Gulu in December 2004; those gathered clearly addressed the issue of national reconciliation.103 Several other conferences have also been held around this theme.104 These include regions other than Acholi, where the conflict continues – although calls for such a program are perhaps strongest there.105 Other regions, however, as mentioned above, have not yet recovered from the abuses suffered at various times from 1962 to the present. These, too, are calling for reconciliation both within and between particular regions. Various individual agencies I met with

23144_GB.book Page 192 Monday, February 9, 2009 11:46 AM

192

Joanna R. Quinn

reported discussing or carrying out mediation and reconciliation between Sabiny and Karamojong;106 Baganda and Teso, Bukiga, and Acholi;107 Iteso and Karamojong;108 Banyoro and Baganda;109 and Langi and Acholi.110 And a good number of these are interested in the inclusion of traditional acknowledgement as a main focus. Actors and Stakeholders There are many actors and stakeholders involved in this effort, for a variety of reasons. The international community, through international ngos (ingos) and other agencies, including the Danish International Development Agency, Save the Children Uganda, World Vision, United Nations Development Program, World Bank, and Northern Uganda Peace Initiative (funded by us Agency for International Development, usaid) are spearheading this push. The international community has been involved in Uganda for a number of years and continues to provide food and development assistance, as well as support to governance and democracy programming, and is increasingly focusing on reconciliation. Between these agencies and the international diplomatic community in Uganda, support for such a program of acknowledgement is high. And these agencies indicate that they are becoming increasingly willing to pressure Museveni into choosing to build a sustainable democracy111 through a process of acknowledgement.112 The Ugandan government, or at least parts of the Ugandan government, has also been pushing for a process of reconciliation and acknowledgement. The creation of the Undersecretariat for Pacification and Development within the Office of the Prime Minister signals the government’s commitment to assist those communities who have struggled or who continue to struggle with conflict. Part of its mandate is postconflict resolution, in the north and elsewhere. The ministries of state within the unit include the Ministry of State for Luweero Triangle, the Ministry of State of Karamoja, and the Ministry of State for Northern Uganda Reconstruction. As well, the minister for internal affairs is again working with Betty Bigombe, the government’s chief lra negotiator, trying to put together a peace agreement in the north. The government has also expressed support for traditional and cultural leaders113 and cultural institutions,114 which some see as leading the way for the establishment of traditional reconciliation. The

23144_GB.book Page 193 Monday, February 9, 2009 11:46 AM

What of Reconciliation?

193

government’s reasons for supporting this kind of programming appear to be twofold: embracing such policies buys it popularity with the public and it allows it to continue to deny wrongdoing in any conflict, past or present. Some within government openly support this type of acknowledgement, as do a number of “opposition” mps. As well, arm’s-length government-funded agencies, including the Amnesty Commission and the Uganda Human Rights Commission, continue to push for acknowledgement. They are, however, censored and threatened with the roll-back of funding.115 A majority of civil society, too, seems to favour acknowledgement. Certainly, at a formal level, ngos and cbos (communitybased organizations) are working towards acknowledgement: “Lots of voices are being heard about how to solve the Northern Uganda conflict, for example, because civil society started to do it. The grassroots/normal people said, ‘Let’s talk.’”116 Agencies mentioned above, including the Mission for National Reconciliation, Ker Kwaro Acholi (Traditional Acholi Leaders), the Gulu District Reconciliation and Peace Team, and denominational and religious bodies such as the Uganda Joint Christian Council and the Justice and Peace Commission of the Roman Catholic Church, have mobilized to bring about acknowledgement. Academics and research centres, too, including the Centre for Basic Research and the Refugee Law Project, are beginning to formulate policy outlines and have begun to talk seriously about putting in place a program of acknowledgement. And individual citizens and citizens’ groups are also talking about such a goal: “But whereas civil society is trying, we are not yet convinced that government has taken it as a priority.”117 For civil society, the reason for pursuing acknowledgement is simple: people are tired of living in a stunted civic environment, haunted by or still plagued by up to forty years of war. Potential Impediments The convergence of all of these groups on this one issue gives acknowledgement and reconciliation programming broad appeal. And the implementation of a national body to coordinate the efforts at acknowledgement and reconciliation seems likely. Several people with whom I spoke seemed quite keen to explore this process. As one put it:

23144_GB.book Page 194 Monday, February 9, 2009 11:46 AM

194

Joanna R. Quinn

The peace process in Uganda could start from below. Anything that can come from above will be questioned by the people. Anything from below can have a better chance. A commission should be there to guide and eventually receive recommendations from each different district. The moment you begin working it from below, it can grow bigger and work. It will be hard to coordinate, but we have had things like the Human Rights Commission. And it would be an expensive exercise to coordinate 50+ centres, but in a situation like Uganda, uniqueness must be borne in mind. We must try to avoid situations where people are talking about things from above going down.118 In the west, in Fort Portal and Kasese, the Justice and Peace Commission of the Uganda Catholic Secretariat has already begun to put this into practice: “Community reconciliation groups/teams of 45 members were formed, and reconciliation ceremonies have been held. They have turned most traditions into modern-day practices. A manual has been developed to help each diocese to sort out what peace means in each district, which will be published in 2005. What we wanted was for them to figure it out according to their understanding and using their own means, not asking for resources from elsewhere, just using their own resources.”119 Indeed, the kind of institution envisioned might look to the South African Truth and Reconciliation Commission for its strong regional offices, each connected to a central body located in Kampala. In a country like Uganda, with no fewer than fifty-six different ethnic groups, this could effectively mean the establishment of fifty-six different offices, one to handle the needs of each ethnic group – one for the Bakiga, one for the Baganda, one for the Banyankole, and so on. Thus, each office could focus on a particular group and attempt to meet its particular needs. But there are a number of issues concerning the development of a program of acknowledgement, and there are problems that will have to be overcome if such a process is to go ahead. Four of these are discussed below. The first problem with building a national program of acknowledgement is that different regions are at different stages of conflict and postconflict resolution. The war in the north is still going on. However, for other groups, there has been no physical violence for

23144_GB.book Page 195 Monday, February 9, 2009 11:46 AM

What of Reconciliation?

195

fifteen, twenty, or even twenty-five years or more. The areas targeted by Obote II, for example, like Luweero Triangle in central Uganda (mentioned above), have not seen violence since 1984. As a result, the needs of these groups vary substantially. The transitional justice literature, along with a recent report by the United Nations secretarygeneral,120 supports Finnstrom’s presupposition that reconciliation must be preceded by peace talks that bring the conflict to an end.121 Indeed, the Justice and Peace Commission of Uganda clearly states that “peace goes with justice, but justice must come first, then peace next. Reconciliation must be part of this.”122 Even once the war in the north has ended, a national program of acknowledgement would have to address these varied needs. It seems likely that the devolution of real powers to the regional level would be useful. The second problem is the great ethnic diversity that exists. As has been mentioned, many of the different ethnic groups in Uganda, although they do share some commonalities, are extremely different in almost every other way. For this reason, if implemented, a national institution to coordinate acknowledgement would face a variety of difficulties. The Commission of Inquiry into Violations of Human Rights faced this problem, although the ethnic composition of its commissioners went some distance to address it, and a similar composition could likely be worked out. Language itself provides a barrier because, although English is Uganda’s national language, it is widely spoken only in Kampala and among elites (even though its use is expanding). But even more problematic, the traditions and practices of one group do not necessarily translate into those of another. For example, killing cattle in Karamoja has deep significance but would be meaningless in other areas. Any national reconciliation program is going to have to take these differences into account, many of which could be solved, first, by focusing on common rites and symbols, and, second, by allowing the different ethnically based groups to work out their own programs and understandings. A third problem, of course, is the fact that some of these kinds of institutions and ceremonies have begun to disappear. The fear is that there may be no link between these traditions and the present day. The literature tells us that culture and its institutions are dynamic and subject to regular change,123 and evidence shows us that many of these traditional systems have, indeed, been rearranged.124 Yet it is likely that these traditional institutions may be “useful tools

23144_GB.book Page 196 Monday, February 9, 2009 11:46 AM

196

Joanna R. Quinn

in re-building communities – something that requires collective acceptance of certain social hierarchies … and making explicit certain norms. It should be added that the ceremonies and ritual behaviours that emerge to do this are by no means always old ones that are taken ‘off the peg,’ but rather ideas about old models are often used to help shape new ones.”125 “These practices, far from being dislocated in a past that no longer exists, have always continued to be situated socially. They are called upon and performed to address present concerns. Of course, like any culturally informed practice, with time they shift in meaning and appearance.”126 It appears, then, that many of them may be dusted off, refined, and pressed back into service. The fourth problem is one that I have alluded to at several points above: the potential difficulty of finding enough sustained support for such an exercise to be carried out to completion. It is clear, when looking at the experience of the Commission of Inquiry into Violations of Human Rights, that a lack of government support was enough to derail the process. At this point, indications of support from government are few and far between. From quasi-governmental agencies, they are much more positive. Certainly, ingos and the international diplomatic community in Kampala support the process, and many of them spoke openly to me about forcing Museveni to go along with the process. That, coupled with the strong levels of support and efforts already put into practice, suggests that a national program of acknowledgement and reconciliation could meet with some success. Despite such problems, there are strong indications of support for this kind of program of acknowledgement in Uganda. And many of the above questions are merely logistical: they will be worked out by stakeholders in the negotiations leading to the implementation of such a process. It remains to be seen whether and how the kinds of traditional practices that have so far been used only on a small scale in local communities will be incorporated into a national program of acknowledgement. And, if they are, how the various difficulties of such a program will be accommodated.

conclusions The devastation of the social infrastructure of a country is but one manifestation of the horrors of mass atrocity. Yet, its repair is one of

23144_GB.book Page 197 Monday, February 9, 2009 11:46 AM

What of Reconciliation?

197

the most important parts of rebuilding such societies. It appears that acknowledgement – the process of coming to terms with the past, dealing with emotional response, memory, and remembering – forms a necessary building block in the repair of the social infrastructure. It is an important factor in the creation of the bonds of social capital and social trust that foster the democratic goals sought by transitional societies. Once past activities have been acknowledged, individuals and their communities can begin to form relationships with their neighbours and to participate in the social activities and civic structures of society, finally defeating the deep-rooted conflicts that have served to paralyse it. And, ultimately, this social interaction represents the much sought after outcome of reconciliation. All of this is especially applicable in Uganda, a country that has seen the murder of more than one million people since Independence in 1962. Its social and political development is stunted. Perhaps worse, many regions of the country continue to experience insecurity and conflict. Attempting to reckon, therefore, with the country’s traumatic past seems an essential undertaking. Various stakeholders and actors both inside and outside the country will play a role in how this process unfolds. Yet, many remain convinced that utilizing traditional practices from Uganda’s rich ethnic and cultural heritage is what will provide the best foundation for the reestablishment of acknowledgement, reconciliation, and a healthy, rebuilt society.

notes Joanna R. Quinn is assistant professor in the Department of Political Science and co-director of the Nationalism and Ethnic Conflict Research Group at The University of Western Ontario. 1 These include rebellions by Action Restore Peace, the Allied Democratic Forces, the Apac rebellion, the Citizen Army for Multiparty Politics, Force Obote Back, the Former Uganda National Army, the Holy Spirit Movement, the Lord’s Army, the Lord’s Resistance Army, the National Federal Army, the National Union for the Liberation of Uganda, the Ninth October Movement, the People’s Redemption Army, the Uganda Christian Democratic Army, the Uganda Federal Democratic Front, the Uganda Freedom Movement, the Ugandan National Democratic Army, the Uganda National Federal Army, the Ugandan National Liberation Front, the Ugandan National Rescue Fronts I

23144_GB.book Page 198 Monday, February 9, 2009 11:46 AM

198

2

3

4 5 6 7

8 9 10

Joanna R. Quinn

and II, the Ugandan People’s Army, the Ugandan People’s Democratic Army, the Uganda Salvation Army, and the West Nile Bank Front. Compiled from Lucy Hovil and Zachary Lomo, Working Paper 11: Behind the Violence – Causes, Consequences and the Search for Solutions to the War in Northern Uganda, (Kampala: Refugee Law Project, February 2004), 4; and Hovil and Lomo, Working Paper 15: Whose Justice? Perceptions of Uganda’s Amnesty Act 2000 – The Potential for Conflict Resolution and Long-Term Reconciliation (Kampala: Refugee Law Project, February 2005), 6. The lra is led by Joseph Kony, whose campaign follows that of the Holy Spirit Movement, led by a woman called Alice Lakwena, who claims to have received visions from God that told her to carry out vicious attacks. In 1986, Lakwena claimed to have up to 18,000 soldiers, although others estimate the number at 7,000 to 10,000. Lakwena is now in exile in Kenya. See Tim Allen, War and Justice in Northern Uganda: An Assessment of the International Criminal Court’s Intervention (London: Crisis States Research Centre, Development Studies Institute, London School of Economics, February 2005), 14; and Heike Behrend, Alice Lakwena and the Holy Spirits (Oxford: James Currey, 1999), 67. Tim Allen points out that, due to insufficient monitoring, “the scale of abduction is a matter of speculation.” See Allen, War and Justice in Northern Uganda, iii. Author interview with Geresome Latim, Secretary to the Paramount Chief of Acholi, 22 November 2004, Gulu, Uganda. huripec, Listen to the People: Peace and Reconciliation in Northern Uganda (Kampala: huripec, 3 May 2004), 92–3. Amnesty Commission internal statistics, cited in Hovil and Lomo, Working Paper 15, 7. “Uganda: icc Could Suspend Northern Investigations – Spokesman,” Reuters AlertNet, 18 April 2005, available at , viewed 28 April 2005. Confidential author interview with Office of the Prime Minister official, 30 October 2004, Kampala, Uganda. Bruno Novelli, Aspects of Karimojong Ethnosociology (Verona: Museum Combonianum no.44, 1988), 83. “Uganda: Focus on Growing Tension in Karamoja,” irinnews.org, 22 March 2000, available at , viewed 28 April 2005.

23144_GB.book Page 199 Monday, February 9, 2009 11:46 AM

What of Reconciliation?

199

11 Government of Uganda, “Presidential and Foreign Affairs Committee Report on the Ministerial Policy Statement and Budget Estimates for the Financial Year 2003/04,” available at , viewed 1 June 2004. 12 Ibid. 13 Karamoja Data Centre, “The Disarmament Process in Karamoja,” available at , viewed 28 April 2008. 14 Author interview with Alex Okello, Under-Secretary of Pacification and Development, 4 November 2004, Kampala, Uganda. 15 “Uganda’s Museveni Vows to Punish Corrupt Troops,” Reuters AlertNet, 4 April 2005, available at , viewed 28 April 2005. 16 Confidential author interview with Office of the Prime Minister official, 30 October 2004, Kampala, Uganda. 17 Holger Bernt Hansen and Michael Twaddle, eds., Developing Uganda: Between Decay and Development (Oxford: James Currey, 1998), 15. 18 Susan Dicklich, “Indigenous ngos and political participation,” in Developing Uganda, ed. Holger Bernt Hansen and Michael Twaddle (Oxford: James Currey, 1998), 145. 19 “Uganda Arts and Culture,” National Information Centre, , viewed 11 September 1999. 20 I believe it to be possible for individual acts or sentiments, particularly of trust and memory, to be extrapolated to the collective. In other words, those acts that might normally be ascribed to an individual might often be attributed to groups of people, keeping in mind that groups are “logically distinct” from their members. See Trudy Govier, Social Trust and Human Communities (Montreal: McGill-Queen’s University Press, 1997), 206. 21 Diane F. Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,” in Transitional Justice: How Emerging Democracies Reckon with Former Regimes, vol. 1, ed. Neil J. Kritz (Washington, dc: United States Institute of Peace Press, 1995), 406–7. 22 Theodor W. Adorno, “What Does Coming to Terms with the Past Mean?” in Bitburg in Moral and Political Perspective, ed. Geoffrey Hartman, 114– 16 (Bloomington: Indiana University Press, 1986). 23 Maurice Mandelbaum, The Problem of Historical Knowledge (New York: Liveright Publishing Corporation, 1938), chaps 1 and 6. 24 Lawrence Langer, Admitting the Holocaust: Collected Essays (New York: Oxford University Press, 1995), 37–8.

23144_GB.book Page 200 Monday, February 9, 2009 11:46 AM

200

Joanna R. Quinn

25 Elisabeth Kübler-Ross, On Death and Dying (Don Mills: Maxwell Macmillan, 1969), 34–105. 26 There is no question that trauma and grief are, indeed, related and that trauma can complicate the grieving process. See Cynthia Blomquist, “Comfort for the Grieving Child,” in Healing the Children of War, ed. Phyllis Kilbourn, 58–61 (Monrovia, ca: marc Publications, 1997). 27 Jeffrie G. Murphy, “Retributive Hatred: An Essay on Criminal Liability and the Emotions,” in Liability and Responsibility: Essays in Law and Morals, ed. R.G. Frey and Christopher W. Morris (New York: Cambridge University Press, 1991), 360. 28 Trudy Govier, “Revenge, Forgiveness and the Unforgivable,” unpublished manuscript, Calgary (2001), 24. 29 Hillel Klein and Ilany Kogan, “Some Observations on Denial and Avoidance in Jewish Holocaust and Post-Holocaust Experience,” in Denial: A Clarification of Concepts and Research, ed. E.L. Edelstein, Donald L. Nathanson, and Andrew M. Stone, 299–304 (New York: Plenum Press, 1989). 30 Rafael Moses, “Denial in Political Process,” in Edelstein, Nathanson, and Stone, Denial, 291–5. 31 Pierre Vidal-Naquet, Assassins of Memory: Essays on the Denial of the Holocaust, trans. Jeffrey Mehlman (New York: Cambridge University Press, 1992), 20; and Trudy Govier, “What Is Acknowledgement and Why Is It Important?” unpublished manuscript, Calgary (2000), 11. 32 Mark Osiel, Mass Atrocity, Collective Memory, and the Law (New Brunswick, us: Transaction Publishers, 1997), 258. 33 Marita Sturken, Tangled Memories: The Vietnam War, the aids Epidemic, and the Politics of Remembering (Berkeley: University of California Press, 1997), 2. 34 Paul Connerton, How Societies Remember (New York: Cambridge University Press, 1989), 1–3. 35 Paula K. Speck, “The Trial of the Argentine Juntas,” University of Miami Inter-American Law Review 18 (1987): 491–533; Osiel, Mass Atrocity, 14. 36 Langer, Admitting the Holocaust, 38. 37 Carina Perelli, “Memoria de Sangre: Fear, Hope, and Disenchantment in Argentina,” in Remapping Memory: The Politices of TimeSpace, ed. Jonathan Boyarin (Minneapolis: University of Minnesota Press, 1994), 39, 49–50, cited in Osiel, Mass Atrocity, 14; Dietrich Bonhoeffer, in Geiko Müller-Fahrenholz, The Art of Forgiveness: Theological Reflections on Healing and Reconciliation (Geneva: wcc Publications, 1997), 43. 38 Richard Foster, Finding the Heart’s True Home (London: Hodder and Stoughten, 2000), 199–200.

23144_GB.book Page 201 Monday, February 9, 2009 11:46 AM

What of Reconciliation?

201

39 Müller-Fahrenholz, The Art of Forgiveness, 36. 40 Gabriel Almond and Sidney Verba, The Civic Culture (Princeton: Princeton University Press, 1963), chap. 10. 41 David J. Lewis and Andrew Weigert, “Trust as a Social Reality,” Social Force 63 (1985): 968. 42 Govier and Verwoerd warn against four inferences: the fallacy of composition, in which an individual’s characteristics may be ascribed to the entire group; the fallacy of division, in which an individual’s characteristics may be inferred from the characteristics of the entire group; hypostatization, whereby the nature, or “ontology,” of the group is seen as different from that of its members; and atomization, whereby the individual is understood only within the context of her group affiliation. See Trudy Govier and Wilhelm Verwoerd, “Trust and the Problem of National Reconciliation,” unpublished manuscript, Calgary (2000), 13–14. 43 Robert Putnam, Making Democracy Work (Princeton: Princeton University Press, 1993), 163–85. 44 Benjamin Barber, Strong Democracy: Participatory Politics for a New Age (Berkeley: University of California Press, 1984), chap. 6. See also Almond and Verba, Civic Culture, 264–5. 45 Schumm draws a distinction between the aphiemi, or “letting go” act of forgiveness performed by God, and the “process,” or struggle, that humans often undergo in attempting to do the same. See Dale Henry Schumm, “Forgiveness in the Healing Process,” in Healing the Children of War, ed. Phyllis Kilbourn (Monrovia, ca: marc Publications, 1997), 274–5. 46 John W. de Gruchy, Reconciliation: Restoring Justice (Minneapolis: Fortress Press, 2002), 45. 47 Susan Dwyer, “Reconciliation for Realists,” Ethics and International Affairs 13 (1999): 89. 48 Ibid., 91. 49 John Mary Waliggo, “Reconciliation as a Means of Resolving Conflict and Restoring Relations,” paper presented at amecea Pastoral Institute, Eldoret, Kenya, 6 June 2003, author’s collection, 1–2. 50 Lisa F. Berkman and Ichiro Kawachi, eds., Social Epidemiology (New York: Oxford University Press, 2000), 175. 51 Nat J. Colletta and Michelle L. Cullen, Violent Conflict and the Transformation of Social Capital (Washington: The World Bank, 2000), 13. See also Amartya Sen, Development as Freedom (New York: Knopf, 1999). 52 Caroline Moser and Jeremy Holland, Urban Poverty and Violence in Jamaica: Latin America and Caribbean Studies Series (Washington, dc: World Bank, 1997).

23144_GB.book Page 202 Monday, February 9, 2009 11:46 AM

202

Joanna R. Quinn

53 Colletta and Cullen, Violent Conflict and the Transformation of Social Capital, 4. 54 Ibid., 123. 55 Museveni, Sowing the Mustard Seed, 217. 56 The Republic of Uganda, “Legal Notice No. 5 of 1986: The Commission of Inquiry Act,” in The Report of the Commission of Inquiry into Violations of Human Rights (Kampala: uppc, 1994) 3–4. 57 These limitations are discussed in greater detail in Joanna R. Quinn, “Constraints: The Un-Doing of the Ugandan Truth Commission,” Human Rights Quarterly 26, 2 (2004): 401–27; and in Joanna R. Quinn, “The Politics of Acknowledgement: Truth Commissions in Uganda and Haiti” (PhD diss., McMaster University, 2003). 58 An excellent description of Hollow Water’s Community Holistic Healing Circle is found in Rupert Ross, Returning to the Teachings (Toronto: Penguin, 1996), 29–50. 59 The Attawapiskat traditional justice pilot project ran from 1991 to 1994, and the traditional court of justice has been sitting ever since. See Bryan Phelan, “Provincial Court Barred from Attawapiskat,” Wawatay News vol. 21, no. 10, 19 May 1994, available at , viewed 30 April 2005. 60 Ross, Returning to the Teachings, 223. 61 “Community Justice Forums,” rcmp Aboriginal Policing, available at , viewed 30 April 2005. 62 Philmer Bluehouse and James Zion, “The Navajo Justice and Peace Ceremony,” Mediation Quarterly 10, 4 (1993): 328. 63 Teresa Olsen, Gabrielle M. Maxwell, and Allison Morris, “Maori and Youth Justice in New Zealand,” in Popular Justice and Community Regeneration, ed. K. Hazlehurst, 89–102 (London: Praeger, 1995). 64 Sarah Garap, “The Struggles of Women and Girls in Simbu Province,” Development Bulletin 50 (October 1999): 48. 65 John S. Mbiti, African Religions and Philosophy (Kampala: East African Educational Publishers, 2002 [1969]), 211. 66 Carola Eyber and Alastair Ager, “Conselho: Psychological Healing in Displaced Communities in Angola,” Lancet 360 (14 September 2002): 871. 67 Alcinda Honwana, “Children of War: Understanding War and War Cleansing in Mozambique and Angola,” in Civilians in War, ed. Simon Chesterman, 1137–40 (Boulder: Lynne Rienner, 2001); and Carolyn Nordstrom, A Different Kind of War Story (Philadelphia: University of Pennsylvania Press, 1997), 142–52.

23144_GB.book Page 203 Monday, February 9, 2009 11:46 AM

What of Reconciliation?

203

68 Ruto Pkalya, Mohamud Adan, Isabella Masinde, Indigenous Democracy: Traditional Conflict Resolution Mechanisms, ed. Betty Rabar and Martin Karimi (Kenya: Intermediate Technology Development Group – Eastern Africa, January 2004). 69 Rosalind Shaw, Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone (United States Institute of Peace, Special Report 130, February 2005), 9 70 Gacaca, Inkundla: Traditional Systems of Justice Being Looked at in the us as “Restorative Justice” (Herndon, va: Marek Publications, 2001), available at , viewed 22 July 2002. 71 See, for example, Peter E. Harrell, Rwanda’s Gamble: Gacaca and a New Model of Transitional Justice (New York: Writers Club Press, 2003). 72 The lc Courts were formerly known as Resistance Council Courts and “were first introduced in Luweero in 1983 during the struggle for liberation. In 1987 they were legally recognized throughout the country.” See John Mary Waliggo, “The Human Right to Peace for Every Person and Every Society,” paper presented at a public dialogue organized by the Faculty of Arts, Makerere University, in conjunction with the Uganda Human Rights Commission and norad, Kampala, Uganda, 4 December 2003, author’s collection, 7. 73 “Uganda: Constitution, Government and Legislation,” available at , viewed 30 April 2005. 74 Government of Uganda, The Children’s Statute, 1996. 75 Bruno Novelli, Karimojong Traditional Religion (Kampala: Comboni Missionaries, 1999), 169–72, 333–40. 76 Author interview with Peter Lokeris, Minister of State for Karamoja, 18 November 2004, Kampala, Uganda. 77 For an excellent description of mato oput, see Sverker Finnstrom, Living with Bad Surroundings: War and Existential Uncertainty in Acholiland in Northern Uganda (Uppsala: Acta Universitatis Upsaliensis, Uppsala Studies in Cultural Anthropology no. 35, 2003), 297–9. 78 Waliggo, “The Human Right to Peace,” 7. See also Waliggo, “On Kitewuliza in Buganda, 3 May 2005,” author’s collection, 1. 79 Joseph Ndrua, “A Christian Study of the African Concept of Authority and the Administration of Justice among the Lugbari of North Western Uganda” (ma thesis, Catholic Higher Institute of Eastern Africa, 1988), 42–56. 80 Finnstrom, Living with Bad Surroundings, 299. 81 Confidential author interview with Sabiny man studying at Makerere University, 7 November 2004, Kampala, Uganda.

23144_GB.book Page 204 Monday, February 9, 2009 11:46 AM

204

Joanna R. Quinn

82 Paul Ngologoza, Kigezi and Its People (Kampala: Fountain Publishers, 1998) 20–2. 83 Dixon Kamukama, Professor of Development Studies and History, 15 November 2004, Kampala, Uganda. 84 Waliggo, “Reconciliation as a Means of Resolving Conflict,” 2. See also author interview with Sister Specioza Kabahoma, Justice and Peace Commission, 10 November 2004, Nsambya, Uganda. 85 Allen reports that a study funded by the Belgian government revealed that young people no longer automatically respect their elders. See Allen, War and Justice in Northern Uganda, 76. 86 Confidential author interview with Sabiny man studying at Makerere University, 7 November 2004, Kampala, Uganda. 87 Finnstrom, Living with Bad Surroundings, 201. 88 Ibid., 298. 89 Ibid., 201. 90 Novelli, Karimojong Traditional Religion, 201–25. 91 Finnstrom, Living with Bad Surroundings, 76, 219. See also E.E. Evans Pritchard, Witchcraft, Oracles and Magic among the Azande (Oxford: Clarendon Press, 1937), 154. 92 Mbiti, African Religions and Philosophy, xi. 93 Aylward Shorter, African Culture (Nairobi: Paulines Publications Africa, 1998), 61. 94 Waliggo, “The Human Right to Respect,” 9. 95 Ross, Returning to the Teachings, 5. 96 Bluehouse and Zion, “The Navajo Justice and Peace Ceremony,” 25. 97 Philip Coulter’s interview with Antjie Krog, in “Walk to Freedom,” radio segment, Ideas, Canadian Broadcasting Corporation, 2004. 98 Ndrua, “A Christian Study of the Lugbari,” 42. 99 Waliggo, “The Human Right to Peace,” 9. 100 Author interview with Rose Othieno, Centre for Conflict Resolution, 5 November 2004, Kampala, Uganda. 101 Confidential author interview with ngo official, 1 November 2004, Kampala, Uganda. 102 Confidential author interview with Sabiny man studying at Makerere University, 7 November 2004, Kampala, Uganda. 103 “Conference Report” (Gulu: Reconciliation: The Way Forward, conference organized by Ministry of Internal Affairs, cultural leaders of the Acholi Sub-Region, religious leaders of the Acholi Sub-Region, and Northern Uganda Peace Initiative, 9–10 December 2004), author’s collection, 21–2. 104 For example, the Centre for Basic Research and the Institute for Historical Justice and Reconciliation (Salzburg) held a conference entitled

23144_GB.book Page 205 Monday, February 9, 2009 11:46 AM

What of Reconciliation?

105

106

107 108 109 110 111

112 113

114 115 116 117 118 119

205

“Historical Memories of Cooperation, Conflict, and Reconciliation in Uganda,” in Jinja, Uganda, 8–9 July 2004. And the conference entitled “Youth Partnership for Peace and Reconciliation Conference: Reconciliation – Rising up against the Challenge” was organized by Northern Uganda Peace Initiative in Gulu, Uganda, 14–16 March, 2005. The Acholi case is an example of unclear understanding of reconciliation as people are calling for a gamut of repairs, including ending the war, amnesty, and rehabilitation. Several of the ngo agencies with whom I spoke in Uganda share this concern, asking, “Who is asking for reconciliation? Do they understand what they are asking for?” Confidential author interview with ngo official, 1 November 2004, Kampala, Uganda. Author interview with Wilson Waswa, Association of Evangelicals in Africa Commission on Relief and Development, 18 November 2004, Kampala, Uganda. Author interview with Jonnes Bakimi and Jonan Kasango, Mission for National Reconciliation, 19 November 2004, Kampala, Uganda. Author interview with Rose Othieno, Centre for Conflict Resolution, 5 November 2004, Kampala, Uganda. Author interview with Simon Rutabajuuka, Centre for Basic Research, 27 October 2004, Kampala, Uganda. Author interview with Cecilia Ogwal, Member of Parliament for Lira Municipality, 20 November 2004, Kampala, Uganda. “U.K. Aid Cut Pressures Uganda,” bbc News, available at , viewed 1 May 2005. Confidential author interview with ngo official, 11 November 2004, Kampala, Uganda. Government of Uganda, “Government White Paper on (1) The Report of the Commission of Inquiry (Constitutional Review) and (2) Government Proposals Not Addressed by the Report of the Commission of Inquiry (Constitutional Review),” September 2004, 11. Ibid., 84–5. Ibid., 59–62. Author interview with Rose Othieno, Centre for Conflict Resolution, 5 November 2004, Kampala, Uganda. Author interview with Stephen Kisembo, Uganda Joint Christian Council, 11 November 2004, Kampala, Uganda. Author interview with Dixon Kamukama, 15 November 2004, Kampala, Uganda. Author interview with Sister Specioza Kabahoma, Justice and Peace Commission, 10 November 2004, Nsambya, Uganda.

23144_GB.book Page 206 Monday, February 9, 2009 11:46 AM

206

Joanna R. Quinn

120 United Nations Secretary General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 23 August 2004, S/2004/616. 121 Finnstrom, Living with Bad Surroundings, 302. 122 Author interview with Sister Specioza Kabahoma, Justice and Peace Commission, 10 November 2004, Nsambya, Uganda. 123 Shorter, African Culture, 23, 29. 124 Allen, War and Justice in Northern Uganda, 77. 125 Ibid., 84. 126 Finnstrom, Living with Bad Surroundings, 299.

23144_GB.book Page 207 Monday, February 9, 2009 11:46 AM

10 A Survey of Reconciliation Processes in Bosnia and Herzegovina: the Gap Between People and Politics VALERY PERRY

i n t ro du c t i o n More than ten years after the signing of the peace agreement that ended the three-and-one-half-year war in Bosnia and Herzegovina (bih), this timespan provides an opportunity for reflection on the peace and state-building processes initiated in the first years of postwar reconstruction and on the work still needed in the future. Considering the extent of destruction in the country (half the population of 4 million people displaced, over 100,000 people killed, massive physical damage, near economic collapse) in the wake of the wars of Yugoslav succession, a great deal has been accomplished in that time. Property was returned to prewar owners and occupants, multiple rounds of general and municipal elections were organized, and the basic institutions of government were established or re-established in the postwar state. The number of international military peacekeepers ensuring the security and stability of the country was gradually reduced from sixty thousand in 1996 to a few thousand in 2008. Houses have been reconstructed or rebuilt, with flyovers of the country revealing roofs on the majority of buildings, in stark opposition to the shelled-out holes of the past. There are fewer international organization vehicles on the streets and more new cars driven by their bih owners. The first kilometres of modern highways have been poured, and temporary military bridges have been replaced with permanent structures. The number of adventure tourists and student back-packers has steadily increased, as has the amount of space dedicated to bih tourism in

23144_GB.book Page 208 Monday, February 9, 2009 11:46 AM

208

Valery Perry

travel guides. Perhaps most important, in June 2008 bih signed a Stabilization and Association Agreement (saa) – the first real step towards membership in the European Union. And, in July 2008, the arrest of indicted war criminal Radovan Karadžic´ provided hope that justice in the wake of the war might be possible. However, while there have been many visible signs of progress, particularly to people who have been in the region for part or all of this postwar period, has that much really changed in Bosnia and Herzegovina? Have the underlying tensions that led to the war been eradicated or at least brought under control within a system of conflict management mechanisms and structures? Has the combination of confidence and security among people throughout bih made another war over power, territory, or identity impossible? Have the necessary institutions of democratic government – not to mention a pluralist, heterogeneous democracy – been established and institutionalized? Is the future of the country truly secure? Has reconciliation begun to take root and establish itself on an irreversible course? The answers to all of these questions are a combination of yes, no, and maybe; in short, it is still too soon to tell. While there are – and, in fact, must be – close ties between the peace process, institution building, democratization processes, and reconciliation, none of these aspects of postwar reconstruction has yet taken root in such a way as to enable one to say that bih’s future can be definitively guaranteed. Politics is still perceived as the problem – not as part of a solution. “Reconciliation” is a word rarely mentioned in good faith in political discourse, and politics is a hurdle to be overcome by those truly working for peace. While idealists may find this disheartening, and post-Dayton sceptics may find this validating, realists will likely appreciate the slow and evolving nature of the process and understand the need for both cautious optimism and continuing determination. The survey provided in this chapter reviews a number of the disparate ongoing reconciliation processes in bih in the years since the war ended. To demonstrate the many different activities and areas of activity, as well as the interconnected systemic relationships among these tracks, this review is built around a framework based on the model of multi-track diplomacy. This approach, developed by Louise Diamond and John McDonald, founders of the Washington, dc-based Institute for Multi-Track Diplomacy (imtd), approaches the issue of diplomacy through nine tracks, acknowledging that successful diplomatic

23144_GB.book Page 209 Monday, February 9, 2009 11:46 AM

A Survey of Reconciliation Processes

209

efforts necessitate a systemic approach encompassing many levels of society.1 Reconciliation is similarly necessary at multiple and complementary levels, so such a holistic framework is analytically useful. This survey is divided into two main sections: (1) a review of several different non-governmental, non-track one processes, followed by (2) comments on reconciliation through official track one processes in order to highlight the gaps and disparities caused by lingering political roadblocks. This review is, of necessity, selective, highlighting examples representative of broader ongoing efforts and challenges. Following this survey, some reflections on the overall success of reconciliation in post-Dayton bih are offered, both in order to shed light on the extent to which reconciliation has “gained traction” and in order to suggest some changes that are needed if these seeds are truly to take root.

b r i e f s u m m a ry o f p o s t- day t o n b i h The state of bih was established in the aftermath of the wars of Yugoslav succession, which devastated the region in the 1990s. After a brief eleven-day conflict in Slovenia in 1991 and a longer war in Croatia, war in bih raged for three and one-half years, from the spring of 1992 until the internationally brokered peace agreement signed in December 1995.2 Generally speaking, the war was fought along political ethno-national lines among the Bosniaks (Muslims), the Bosnian Croats (Roman Catholics), and Bosnian Serbs (Orthodox Christians) as political and military leaders fought for an independent bih, the creation of “ethnically pure” mini-states, or annexation to neighbouring Croatia or then rump-Yugoslavia. It is estimated that over 100,000 people were killed in the fighting in bih and that half of the population of approximately 4 million were displaced from their homes through campaigns of ethnic cleansing.3 While the borders of internationally recognized, modern-day, independent bih roughly resemble the shape of the country as a kingdom in the twelfth century, the peace deal that dictated its structure was new. The Dayton Peace Agreement (dpa) designed bih to be one state, with two entities and three constituent peoples. bih’s governing structure and internal boundaries were formalized in the peace accords and were based on political imperatives and wartime front lines rather than administrative logic. They consisted of a gerrymandered mélange of state, entity, cantonal, and municipal levels of government

23144_GB.book Page 210 Monday, February 9, 2009 11:46 AM

210

Valery Perry

crafted to appease the varying national factions and to ensure agreement at the Dayton peace talks. The state of bih created at Dayton was intentionally weak, with limited scope and mandate, minimal resources, and often merely symbolic structures. Power-sharing guarantees, including minimum representation, ethnic quotas, and national veto options, are embedded throughout government structures. The state presidency of bih consists of a tripartite presidency in which one member must be a Bosniak, one a Croat, and one a Serb, with the members directly elected in each entity.4 However, the state has, with rare exception, been virtually non-existent in terms of structures and competencies; the real political (and financial) power has been held at lower levels. bih consists of two highly autonomous entities, which have held the real decision-making and operational power. The Federation of Bosnia and Herzegovina (fbih), often referred to as the “Muslim-Croat Federation,” was initially created during the war in 1994 and comprises 51 percent of the territory of bih. The Republika Srpska (rs), also a political construct forged in the recent war and formally recognized in the dpa, comprises 49 percent of the territory of bih. The names of the entities indicate their ethnic orientation, and while a decision in 2002 by the bih state Constitutional Court mandated that each constituent people must be allowed to enjoy the same rights throughout the country, the implementation of this decision has been uneven and slow. The entities are structured in very different ways, with the rs highly centralized and the fbih highly decentralized, with powers devolved to ten cantons. Five of these cantons have large Bosniak majorities,5 three have large Croat majorities, and two are very mixed;6 the cantonal breakdown in the Federation reflects the demographic changes and political balances that emerged during the 1993–94 war between the Bosniaks and Croats.7 In addition to this cumbersome system, bih is broken down into approximately 140 municipalities, and there is one special administrative district in Brcko (in northeast bih), which is held in condominium by both entities but is in fact controlled by neither, as a special (primarily American-led) international administration has played the primary governance and supervisory role in the district. It has long been evident that this system is duplicative, inefficient, expensive, and ineffective. However, as long as its fundamental terms were enshrined in Dayton, change has been possible only through the agreement of all of the parties (a near impossibility considering the political ^

23144_GB.book Page 211 Monday, February 9, 2009 11:46 AM

A Survey of Reconciliation Processes

211

implications of constitutional change) or through international community diktat. This convoluted constitutional and political arrangement might better be referred to as a compromise than as a structure.8 It reflects the serious political obstacles to reform and reconciliation in the country as well as the environment within which reconciliation efforts must proceed.

n o n - g ov e r n m e n ta l r e c o n c i l i at i o n : p r o g r e s s a n d o b s ta c l e s This section reviews a variety of non-governmental reconciliation efforts that ideally should complement or supplement similar political reconciliation efforts. It is loosely based on the noted imtd multi-track framework to provide structure and to emphasize the many different spheres of life that have experienced progress or met with obstacles. Unfortunately, while these represent the nongovernmental efforts, it will become clear that they are not necessarily all non-political. Professional Conflict Resolution Efforts Certain parts of the world have become intellectual Petri dishes for researchers and students of conflict resolution due both to the highprofile nature of the conflict and the various peace process attempts. Northern Ireland, Cyprus, and the Middle East are often cited in the literature, with every aspect of the conflict scrutinized and analyzed and possible resolution options hypothesized. PostDayton bih can be added to this list of academic destinations. Particularly as the post-Cold War era has ushered in new fields of research and practice focused on vague yet idealistic goals such as “democracy building,” “state-building,” and “human rights promotion,” the number of people engaged in relevant practice and research has steadily increased. Specialists in electoral systems, women’s participation, civil society outreach, truth and reconciliation commissions, and institution building come into postconflict areas armed with tools such as proportional representation electoral systems, human rights ombudsmen offices, public administration reform kits, mediation and arbitration specialists, and other mechanisms aimed at resolving conflicts or disagreement through peaceful means. This real-time, real-world experience is often

23144_GB.book Page 212 Monday, February 9, 2009 11:46 AM

212

Valery Perry

documented by observers (including think tanks such as the International Crisis Group or individual researchers) and/or by the practitioners themselves (e.g., scholar/practitioners such as Larry Diamond or Thomas Carothers have contributed both to the field and the literature). These efforts share a common thread: they are attempts to put into place mechanisms, systems, and structures for decision making and conflict resolution that will replace the often violent methods that led to the conflict in the first place. bih has experienced a similar influx of professional “conflict resolutionaries” at both high political and grassroots levels, working or volunteering as policy makers, reformers, technical advisors, advocates, activists, consultants, or researchers. As bih was one of the first and largest post-Cold War peacebuilding efforts to be attempted by the international community (to be followed by efforts in places such as Kosovo, East Timor, Afghanistan, and Iraq), the country has both contributed to and benefited from the emerging body of knowledge. Three efforts in particular are touched upon below for their direct support of the establishment of formal conflict resolution mechanisms in postwar bih: the effort to establish an “international mediator,” the ongoing effort to set up a truth and reconciliation commission, and the tricountry regional effort to document wartime events. Dr Christian Schwarz-Schilling, a German official who was involved in mediation efforts in the region during the war (and who would later serve as High Representative of bih in 2006 and 2007),9 was appointed as the international mediator in bih after having served in such a capacity in each of the entities.10 The establishment of mediation (and also arbitration) bodies was, in part, a reflection of the fact that the end of the war was inconclusive for all parties: there were still scores to be settled, and the establishment of these bodies was an attempt to provide a non-violent mechanism for resolution.11 During his tenure, the international mediator participated in almost two hundred mediation events in bih, with a focus on the establishment and functioning of inclusive institutions of local government assemblies at the municipality and cantonal levels, return and return-related issues, and multiethnic policing. The results of this mediation were mixed and are difficult to separate from other factors, such as the role of the high representative in implementing the civilian aspects of the dpa, the broader property return effort, and the consolidation and slow normalization of postwar politics.

23144_GB.book Page 213 Monday, February 9, 2009 11:46 AM

A Survey of Reconciliation Processes

213

Perhaps in part due to the fact that the international mediator worked in the immediate postwar years, when tensions were still high and wartime struggles still unresolved, his role often seemed to be one of helping to divide the political pie (albeit peacefully) rather than of building bridges – demonstrating yet again the extent to which politicians have continued to fight the war by political means.12 The political nature of the mediator’s role in contentious postwar political issues made truly neutral mediation difficult, and the process in which he was involved has been described as more akin to forced arbitration than to consultative mediation. The limitations of the position of mediator in the postwar environment were evident to Schwarz-Schilling himself. Towards the end of his tenure, he made statements asserting that the constitutional and administrative structures of bih must change if the country is to enter the European Union (eu) – an opinion shared by many bih observers but strengthened based on his experience in mediating local-level governance and political disputes. It is fair to say that, while this effort appeared to be one of “professional conflict resolution” as it was built on commonly accepted conflict resolution approaches, a case can be made that this was actually another “track one” political effort, though with a different name. It is difficult to measure the success of this body independently of other postwar factors, and an independent evaluation would be a welcome addition to the literature on mediation in such circumstances. A second effort that can be viewed as a professional conflict resolution initiative is the ongoing, though frequently stalled, effort to establish a truth and reconciliation commission in bih. In 1997 the United States Institute of Peace, together with the Council of Europe, held consultations in Strasbourg to lay the groundwork for a process through which the truth about the events of the war could be discussed. This effort evolved into the National Coordinating Committee for the Establishment of a Truth and Reconciliation Commission in bih and the Association of Citizens – Truth and Reconciliation, which has been working under the stewardship of Jakob Finci (the leader of bih’s Jewish community and a natural “fourth side” often called upon to facilitate such cross-party dialogues) since a subsequent conference in January 2000 brought together a group of civil society leaders from throughout the country. A conference in May 2001, entitled “An Idea Whose Time Has Come: Truth and Reconciliation Commission in Bosnia and Herzegovina,” was another step in

23144_GB.book Page 214 Monday, February 9, 2009 11:46 AM

214

Valery Perry

this process; however, while Bosnian Serb political and religious representatives were on the speakers’ list, they did not in fact attend, and this effort did not gain the momentum needed to ensure support. The association sought to move forward under the framework of a law establishing the commission; however, as the most basic legislation regulating mundane issues often fails to pass through the necessary parliamentary channels, such politically sensitive legislation never became a priority of the Parliament. Other problems confronted advocates of this approach as well. Victims’ associations rejected the plan in autumn 2003 on the grounds that they had not been included in the law-drafting process; this reluctance was likely also fostered by nationalist and division-minded politicians who were only interested in “reconciliation” to the extent to which it could demonstrate the extent of the suffering of “their people.” While initially not supported by the International Criminal Tribunal for the former Yugoslavia (icty) – the formal international mechanism established to try war crimes and to support the process of retributive justice – on the grounds that such an effort could overlap or potentially infringe upon the judicial procedures under way at the court’s various levels, as pressure mounts on it to wrap up its work it has increasingly shown its support for domestic mechanisms for justice. There is also an effort, ongoing in 2008, to set up a regional commission for establishing the facts about the war crimes in the former Yugoslavia, an effort supported by ngos in Zagreb, Sarajevo, and Belgrade, though some observers have strong doubts about the potential for the success of this endeavour.13 There is still a long way to go in terms of determining the principles and structure, not to mention solidifying genuine buy-in among the country’s leaders – a crucial piece of the puzzle that has been missing since the beginning. A third and related effort that provides reason for optimism is the cooperation among three regional organizations dedicated to learning the truth about the war and its aftermath: Sarajevo’s Research and Documentation Centre, Zagreb’s Centre for Research and Documentation, and Belgrade’s Humanitarian Law Centre. These three bodies are compiling a database (entitled “Documenta”) to capture the histories of victims and the stories of survivors.14 This effort, based on the belief that information and historical truth are crucial in supporting restorative justice processes, reflects reforms in terms of basic human rights mechanisms and civil society that have occurred in the region as a whole over the past ten years as well as a

23144_GB.book Page 215 Monday, February 9, 2009 11:46 AM

A Survey of Reconciliation Processes

215

willingness to examine issues of shared responsibility. If carried through, such initiatives could provide a valuable service by simply collecting the stories of victims and thus allowing for broader understanding in the future. Reconciliation among Private Citizens It is unfortunate that the three-sided vision of bih that allowed the war to begin and linger has in many ways been reified through the Dayton Agreement. bih was the most heterogeneous republic in the former Yugoslavia, and it had a large segment of the population that could be considered mixed, or “Yugoslav.”15 The intermingling that occurred over time – particularly in the cities of bih – led to a situation in which many people claim parents or some relative of different nationality. However, the Dayton Agreement and bih’s state constitutions, together with the entity and lower-level constitutions, all enshrine the notion that bih is a country comprised of three “constituent peoples” (plus the vaguely stated and continually marginalized category of “others”). There is no room in the current political structure for a “fourth voice” or “fourth side” to emerge.16 However, in spite of this hostile political environment, individuals have often overcome these narrow labels and managed to make very personal choices that may lay the groundwork for reconciliation in years to come. One unique aspect of the Dayton Agreement is Annex 7 (Agreement on Refugees and Displaced Persons), which guarantees bih’s displaced persons and refugees the right to return to their prewar homes. This right has been exercised and is most immediately visible through an organized and internationally supervised process through which property could be reclaimed by the prewar owners and occupants. Over 90 percent of properties have been returned to claimants.17 Critics will be quick to point out that just because someone reclaims her or his property does not mean that they have decided to return to their prewar home; indeed, many people have reclaimed property simply to resell it and to continue on with their lives elsewhere in bih or in another country. The postwar reality is that, in a country built according to equations of narrow identities at best and ethnic cleansing at worst, demographics and population settlements have been a tool for achieving political ends during peacetime. While Bosniak leaders encouraged people to “go home”

23144_GB.book Page 216 Monday, February 9, 2009 11:46 AM

216

Valery Perry

in order to reverse the effects of ethnic cleansing (setting up a movement called povratak, which means “return”), leaders in the rs in the years after the war encouraged people to “stay put” in order to solidify the demographic gains of the war (using the word ostanak, which means “stay,” to describe this counter-effort). This political effort has – together with the passage of time- had an impact on the numbers of returnees as a hostile and obstructionist return climate is hardly welcoming to refugees and victims of war.18 However, when people have been allowed to make the choice, there have been successes. Return to Central Bosnia Canton has been moderately successful, with particular progress since 1999. Brcko District, while unique due to its political situation, has also experienced the return of a significant part of the Bosniak population that had been completely expelled during the war. These are small victories that chronicle private choices, but they at least provide a framework for a more multiethnic future and demonstrate the personal motivations in postwar bih rather than just the political drives. Two interesting publishing efforts by two prominent women provide additional examples of person-to-person reconciliation. Svetlana Broz, granddaughter of former Yugoslav leader Josip Tito, has published a volume called Good People in an Evil Time, highlighting examples of people helping people during the worst moments of the war – Croats helping Serbs, Serbs helping Bosniaks, Bosniaks helping Croats.19 The hardcopy compilation is complemented by an online forum offering space for dialogue in order to demonstrate that, even when terrible atrocities are committed by politicians, warlords, and average people in times of war, there is still space for good. A collection of twenty-six women’s experiences of hope and reconciliation was similarly compiled in a volume entitled This Was Not Our War: Bosnian Women Reclaiming the Peace.20 Speaking to people in bih one often hears similar stories of moral courage that occurred during or after the war, and these efforts, and many others like them, demonstrate that, at the personal level of private citizens, steps have been taken to create an environment in which reconciliation is possible. ^

research and education There are many good and bad examples of how research, training, and education have been used as tools for progress or segregation.

23144_GB.book Page 217 Monday, February 9, 2009 11:46 AM

A Survey of Reconciliation Processes

217

Education has been used as a tool to promote division rather than integration since the onset of the war,21 and only in the past several years has there been the political space to begin to discuss issues such as segregated schools, politically charged textbooks and symbols, and divisive curricula. Key political stumbling blocks remain: the government failed for years to adopt higher education legislation at the state level (doing so finally in 2007), and over fifty “two schools under one roof” (schools in which children are literally segregated according to their nationality while occupying space in the same building) continue to operate. In fact, since 2006, segregation (or its equally disturbing counter-part – forced assimilation) has been on the rise. However, as continuing tensions between China and Japan over the teaching of the Second World War illustrate, education and history are contentious issues, and such changes take time to develop. Positive signs, however, can be found. For example, Brcko District demonstrates that children can study together in integrated schools.22 Further, an effort to develop new history textbooks has been ongoing for several years through the work of the Organization for Security and Cooperation in Europe and the George Eckert Institute, enabling incremental progress that, in the long term will, contribute much in this extremely delicate area. Research on post-Dayton bih has played a large role in the growing industry of think tanks and policy centres focusing on issues related to postconflict reconstruction, the democratization processes, and transition societies. The International Crisis Group (icg) built its early reputation on its political reporting and monitoring of bih’s post-Dayton experience and the Balkans generally. Other organizations, like the European Stability Initiative, have developed specifically in response to the crises of rebuilding in the Balkans region, seeking to influence policy makers through academic work and discussion fora, and offering a counter-point to the icg. The Scholars’ Initiative has tried to bring together historians from throughout the region to jointly develop histories of the recent years. It is a reconciliation-minded effort in that it is seeking to develop a shared narrative.23 These efforts have been useful in creating a space for dialogue, but the jury is still out as to the histories and policies that will be written in a generation, after more time has passed to allow for reflection and stabilization. ^

23144_GB.book Page 218 Monday, February 9, 2009 11:46 AM

218

Valery Perry

Activism and Funding bih was besieged by trainers and civil society activists while the fires were still burning in the wake of the signing of the Dayton Agreement. Earnest aid and development organizations came in to teach “democracy” and “human rights” to anyone who would listen. Perhaps due to the guilt felt by many in the West at watching a war unfold on the borders of Europe, the resources available for reconstruction have been significant, coming from foreign ministries, development agencies, and private philanthropic organizations (such as George Soros’s Open Society Initiative). However, as is typical in conflict zones, much of this aid came in quickly after the peace agreement, when emergency help poured into the country; once the country was ready for more difficult (yet equally necessary) reconciliation-oriented activities, much of the attention (and resources) had already shifted elsewhere. It is fortunate that some organizations have remained in the country for years, establishing a basis for true future development. ngos such as the Centre for Non-Violent Action have brought citizens together in meetings and activities to seek to plant the seeds of peacebuilding.24 Their activities include cross-border dialogue initiatives and efforts aimed at bringing together demobilized soldiers from the various sides in the war. The Norway-based Nansen Dialogue Centre has worked in cities across bih to encourage civil society participation in debates on women’s issues, youth issues, and local governance issues. Victims’ associations have provided an outlet for emotions and activism but have played conflicting roles in terms of broader socio-political reconciliation (as noted above). Hundreds of other smaller ngo initiatives have come and gone, with various focus and effect, in the past decade – a “mini-industry” that agencies such as the International Council of Voluntary Agencies have tracked through their networking and civil society monitoring efforts. While activist organizations have sprouted up like mushrooms, their ability to effect change in legislation and policy remains unfortunately limited as the natural link that should exist between bodies of government and the citizens remains tenuous. Lobbying as understood in the Western sense is non-existent, though there have been some steps forward, such as the adoption of freedom of information legislation, that will increase transparency and accountability. One

23144_GB.book Page 219 Monday, February 9, 2009 11:46 AM

A Survey of Reconciliation Processes

219

recent tangible activist victory vis-à-vis the government, in an effort to increase the accountability between the municipal executive and a community’s citizens, was the successful 2004 movement to amend the election law to allow for mayors to be directly elected. This initiative was driven by the Centre for Civic Initiatives, a very wellregarded ngo with a pedigree heavily steeped in usaid and National Democratic Institute practices and experience.25 (However, while the reform initiative was successful, the extent to which directly elected mayors are substantially more accountable to their electorate has not yet been established. Further, in 2008, this reform was nearly reversed in the Republika Srpska, with clear political motivations.) The results of the 2006 general elections brought more of the same, as nationalist parties with exclusive, mono-ethnic agendas won handily. More of the same is expected in municipal elections in 2008. While citizens continue to be tired of politics and often quite disengaged and disillusioned (as evidenced by low voter turnout rates), the development of the links between government and the governed is one that must be forged over time in any transition country.26 Religion While the war in bih was not a religious war, religion certainly played a part as a tool around which to mobilize people according to populist nationalist agendas.27 In the post-Communist era in the former Yugoslavia, religion and politics have been closely intertwined, with many former Communist Party apparatchiks suddenly keen to display their religious credentials.28 In the postwar era as well, rather than being a channel of peace, religion has at times reflected the political situation in the country. However, in spite of the tendency to mobilize religion for political ends, there have been some glimmers of hope, mostly at the grassroots levels, that could point to a more positive future role of religion in bih society. The purpose of the Inter-Religious Council is to bring together the leaders of bih’s four main religious communities – Roman Catholic, Jewish, Islamic, and Orthodox – to foster top-down dialogue and reconciliation based on a common understanding of shared religious norms.29 While this body made some progress (e.g., drafting the Law on Freedom of Religion and the Legal Position of Religious Communities and Churches in Bosnia and Herzegovina, supporting radio shows on religious issues, and raising attention to

23144_GB.book Page 220 Monday, February 9, 2009 11:46 AM

220

Valery Perry

women’s issues), its leadership has not always been willing to internalize the principles of reconciliation embraced by its respective religions. Religious leaders continue to maintain close ties to the nationalist parties and to focus solely on their specific congregations. There is hope that, as bih’s political parties democratize, leaders will normalize their relations with their religious counterparts and allow for a less politicized faith-based dialogue. However, until then the link between religion and narrow conservative politics is likely to remain strong. There is some room for cautious optimism. There is an effort to introduce a course in bih school to teach children about all four of bih’s traditional faiths – a course called Culture of Religions. In 2000, an English organization called the Soul of Europe began working on an effort aimed at rebuilding the destroyed Ferhadija mosque in Banja Luka. This was to be the symbolic basis for a reconciliation process in the region and the country more broadly.30 Led by an Anglican minister, the effort seeks to bridge faith between Christians and Muslims in bih for the benefit not only of the country but also of a world struggling to appreciate the changing dynamics of the two faiths. While a noble effort, this initiative has been continually hamstrung by all sides. rs politicians are not keen to be seen as supporting such an effort. Even Islamic officials (strongly backed by and supportive of the sda, the main Bosniak nationalist party) have themselves at times contributed to stalling. This is because the rebuilding of the Ferhadija mosque – and, even more, any successful civil society effort around it – would represent a gain in reconciliation but a loss in the political capital that comes from having an ongoing, visible, and powerful grievance. Although slow, such an initiative, if embraced in good faith by civil society and politicians alike, could contribute to reconciliation. Public Opinion/Communication The media helped to stoke the war in the former Yugoslavia as, in the late 1980s and early 1990s, its new-found freedom quickly enabled irresponsible nationalist-driven broadcasts to dominate both print and broadcast journalism. In the postwar period there is still a long way to go before the media in bih can be considered truly free and objective as there are close ties between news outlets and nationalist parties, separate media sources for each separate people in

23144_GB.book Page 221 Monday, February 9, 2009 11:46 AM

A Survey of Reconciliation Processes

221

bih, and a weak tradition of democratic journalism. There have been recent signs of an improvement in this area. Zeljko Kopanja, the Bosnian Serb editor of the newspaper Nezavine Novene (distributed state-wide and based in Banja Luka), lost his legs in a car bomb in 1999. The bomb was believed to have been set by hardline Serbs who were opposed to his investigation into Serb atrocities against Bosniaks during the war. Kopanja was interviewed on the topic of the 2005 influx of indicted war criminals going to the Hague: “Those who labeled me as a traitor and a spy today believe in my concept of life … They have become the biggest supporters of Nezavisne Novine.”31 This shift reflects a maturation of both politics and the media – and the intersection of the two. A media project merits particular attention as a sign that the media is beginning to mature, to depoliticize, and to allow space for reconciliation. The Videoletters Project,32 initiated by two Dutch journalists with experience in the region, aimed to foster reconciliation among individuals by linking neighbours and friends who were separated, or simply lost touch, during the war. Through videotaped “letters,” people throughout the region could reconnect, send out a message, see a familiar face on tv, or simply find out if someone is still alive. This simple yet elegant approach to building personal bridges would not have been possible in the years immediately after the war as the fact that broadcasters in these countries have all agreed to air these videos is a considerable step forward – something that would not have been possible without the gradual liberalization of media. Together with an increased interest – particularly among youth – in alternative media and online fora, there is a chance that the political stranglehold on media in bih could be weakened in the medium to long term. Business Business and the economy can play a dual role in reconciliation by building practical economic ties among communities in order to foster relationships and by improving personal economic situations and expanding the “economic pie” so as to improve people’s standards of living. In conversations with people in bih, and also in regular public opinion polls, the economy and the need for jobs is often cited as the average citizen’s most important priority. People often say that a greater level of economic security would make it

23144_GB.book Page 222 Monday, February 9, 2009 11:46 AM

222

Valery Perry

more difficult for politicians to manipulate voters. Progress made in terms of European Union membership is seen nearly wholly in terms of potential economic benefits. One example of an improvement in business relations is the increasing cooperation of bih tourism agencies in promoting an image of the country abroad. Prior to cooperative efforts, which began in 2001, the fbih and the rs each had its own tourism promotion strategies, which were clearly nationalist in their orientation. For example, at times, maps distributed by one entity’s agencies would exclude the other entities, barely recognizing the existence of bih as a state. In 2003, the bih Agency for Tourism was established, and relevant laws were changed to enable more effective coordination in order to promote tourism in bih. bih advertisements on cnn entice tourists to “enjoy Bosnia and Herzegovina.” Cross-entity efforts supported by the country’s regional development agencies are similarly seeking to break down these internal administrative and political barriers. These are positive signs of progress that were non-existent years ago but that are becoming matter of fact today. Of necessity, this summary can offer only highlights of the many ongoing efforts aimed at bringing peace and stability to bih. However, as is seen below, the political environment has not kept pace with many of these “lower-level” advances. One must wonder how much more quickly bih might have progressed if its leaders had actually wanted the support and assistance poured into the country after Dayton; and had actually wanted an improved political environment. Unfortunately, many of these efforts have been a constant uphill struggle, and after a short period of progress, since 2006 rhetoric has, in many ways, become worse.

“ o f f i c i a l” g ov e r n m e n ta l “ t r a c k o n e ” r e c o n c i l i at i o n Critics of the post-Dayton record will point to the depressing political record of the country over the past decade: the continued electoral successes of nationalist parties; the segregated political structures at the municipal, cantonal, and entity levels; and the blocking of legislation at all levels in the name of a “vital national interest.” With regard to postwar development, stability,

23144_GB.book Page 223 Monday, February 9, 2009 11:46 AM

A Survey of Reconciliation Processes

223

and reconciliation, politics remains the main stumbling block in bih. While there have been signs of slow progress, such as the establishment of a state-level Ministry of Defence and constitutional changes mandating the equality of all people throughout the country, it can be fairly said that these reforms have come about as a result of international pressure in the form of sticks (imposition of laws, etc.) and “conditionality carrots” (the prospect of membership in the eu or nato’s Partnership for Peace). Political healing has been slow or non-existent as politicians continue to fight the war through peaceful means. There have been some tentative steps forward in terms of regional high politics, for example, in terms of slow statements of apology. In 2003 Croatian president Stipe Mesic´ apologized for all of the evils caused during the war, and in December 2004 Serbian president Boris Tadic´ apologized “in his own name” for crimes committed “in the name of the Serbian people” during the war, calling for apologies from all parties.33 Tadic´ was careful to note that crimes were committed not by the Serbian people as a whole but, rather, by certain individuals, and his call for apologies on the part of all parties was rejected by those who viewed this as an attempt to play the “allsides-were-equally-guilty” card. Eric Gordy points out a key issue, noting that German chancellor Willy Brandt apologized, as a leader and as a statesman, in the name of Germany for the atrocities of the Second World War: “Government officials often have the opportunity to announce changes in policy, but only occasionally do they have the privilege of announcing changes in consciousness.”34 No regional leaders have sought such a change in consciousness in the Balkans. While a minor step forward, these statements have stopped short of opening the floodgates of reform and reconciliation. These flimsy apologies are related to the fact that there is no leader in bih who can claim to truly speak for all of its citizens. There is no moral leader with a vision of what a heterogeneous bih could look like. There is no leader offering an olive branch to “the other.” Instead, politicians continue to make comments that suggest that they would be willing to return to war to protect their professed ethnocentric ideals. Politicians and parties focus on their ethnically pure constituencies without trying to cross lines. In fact, they often wilfully seek to fan the flames of ongoing conflict. While one would hope for a change in rhetoric as years pass, the speeches

23144_GB.book Page 224 Monday, February 9, 2009 11:46 AM

224

Valery Perry

seem to be simply dusted off and reread. For example, at the time of the 2005 conference, which served as the basis for this publication, then Bosnian Serb prime minister Pero Bukejlovic´ stated in March that the suffering of Serbs in Sarajevo during the war was perhaps greater than the suffering of Bosniaks at the massacre in Srebrenica in July 1995.35 In April 2005, there was an orchestrated incident in which groups of conscripts from the rs, about to be the first cohort of soldiers to pledge their allegiance not to an entity but to the state of bih, defied the pledge by yelling “Republika Srpska!” and then booing during the state anthem – an act of defiance captured by the media.36 Politics have been equally – if not more – ugly since the 2006 elections. Bosniak leader Haris Silajdzic´, after playing a key role in the downfall of constitutional reform efforts in 2006, continues to call upon the wartime suffering of the Bosniaks in his Quixotic efforts to remove the political construct of the Republika Srpska from bih life. At the same time, Serb leader Milorad Dodik (the yin to Silajdzic´’s yang), in subtle (or not so subtle) ways, drops comments concerning the right of the Republika Srpska to a referendum on independence whenever he needs a political boost. Over a decade after the peace, votes are won according to ethnic lines, and the game of politics is played accordingly. These issues are related to the fact that there is still no consensus among bih’s politicians that bih should exist as a normal, independent democratic state. There is no understanding of the concept of a loyal opposition – that a party may not be in power but can still support a political process aimed at improving people’s lives while at the same time promoting its own platforms. bih is still in many ways a “pre-democracy.” Politicians will say one thing in a press conference and then do the opposite without fear of accountability through potential citizen retribution at the ballot box. Political parties perceive (unfortunately, until now, rightly so) that they have more to gain by drafting their own plans and legislation aimed at their specific constituencies than by sincerely seeking to develop an approach that will include all citizens. There are different reasons for this. The Bosniaks (and the main Bosniak nationalist parties, the sda and the sbih) often use the fact that Bosniaks did suffer inordinately during the war and its ethnic cleansing campaign (most notoriously in Srebrenica) to frame the issue only according to their suffering, viewing any attempts to note the suffering of others as an effort to equate wartime evils in a “tit-for-tat” fashion.

23144_GB.book Page 225 Monday, February 9, 2009 11:46 AM

A Survey of Reconciliation Processes

225

The Serbs (through Dodik’s Alliance of Independent Social Democrats [snsd] and the Srpska Demokratska Stranka [sds]) have played up the notion that they have been unfairly targeted as the sole “bad guys” in a war that was more complex than was portrayed in the media. The Croats – who are themselves politically divided (between Hrvatska demokratska zajednica [hdz] and hdz 1990) – as the smallest group in bih, are willing to compromise and to accept state-level approaches when it suits them politically, though they can often demonstrate support for a policy knowing full well that their Bosniak or Serb colleagues will never accept it. In short, the lack of a vibrant non-nationalist political life based on citizenship and civic life in bih has made it difficult for any of the non-governmental reconciliation processes to take root, deepen, and spread.

put ti ng t he puzzl e toget he r Many of the peacebuilding approaches that have been discussed, particularly the formal “political” mechanisms of conflict resolution, were established in response to the weaknesses of the Dayton Peace Agreement – a document that ended a war but that did not offer a strong framework for building a peace. Wars often end when one side achieves a decisive victory and is able to assert its aims over the other side; in bih, the war ended with the signing of the dpa and the insertion of sixty thousand nato peacekeepers to oversee peace implementation and to deter further violence. A “cold peace” ensued, but one may question whether the underlying tensions – most notably a fear of living as a national minority in a state controlled by an opposing national majority – that led to the outbreak of war have been resolved. Until this fear is resolved, among citizens and politicians alike, reconciliation will be incomplete. bih could simply remain a frozen conflict in Europe. There are a wide variety of systemic and structural reforms that would help to improve the situation in bih, with electoral reform, constitutional reform, and basic democratic consolidation leading the list. For the purpose of this survey, three broad, overarching factors are highlighted to help explain the reconciliation gap between people and politics. First is the complete lack of non-nationalist visionary leadership in bih. In the years immediately following the dpa, those same parties and individuals who had been responsible

23144_GB.book Page 226 Monday, February 9, 2009 11:46 AM

226

Valery Perry

for the war continued to hold power. This is true both in bih specifically and in the region in general as the wartime leader of Croatia, Franjo Tudman left the formal political scene upon his death in December 1999; Serbian leader Slobodan Miloševic´ was in the middle of his war crimes trial at the Hague when he died in custody in 2006; and Alija Izetbegovic´, the third of the three regional signatories to the agreement, died in October 2003. Even after the departure of these three dominant political personalities, ethno-nationally oriented parties have more or less remained in power, benefiting from the populist, nationalist politics of fear as well as from a divisive electoral system and a constitutional structure that minimizes the chances of any cross-nationality voting. The dynamics and impact of human agency in any political process should not be underestimated. How might the world be different if a leader like Nelson Mandela or Vàclav Havel had emerged in Yugoslavia in the late 1980s rather than Slobodan Miloševic´? Would South Africa’s post-apartheid reconciliation have been so relatively smooth in the absence of Mandela’s moral leadership and vision for peaceful change and reconciliation? The city of Tuzla has often been viewed as a leader in terms of moderation, progress, and reform in bih, and it is not coincidental that the city has boasted non-nationalist leadership since the war.37 However, Bešlagi c´ was a welcome exception. According to journalist Duško Doder: “Leaders in former Yugoslavia are provincial warlords steeped in blood who masquerade as politicians, narrow-minded men filled with hate who – to borrow Mandela’s description of them – think ‘through their blood, not through their brains.’ With such men still in power, Bosnia remains a great, unfinished drama.”38 The result of this gap in leadership is an environment in which all parties have defined politics as a zero-sum game. A gain for one people or party is viewed as a loss for another, and this fear, forged in the run-up and execution of the war, has, in the peace, been reified by political structures that mandate tight and limiting representation quotas that make politics an exercise in tit-for-tat horse-trading. Compromise is viewed as loss, and long-term possibilities are sacrificed for short-term gains. There is hope that this lack of shared and overarching goals can be addressed through the pre-eminent goal of eventual membership in the eu – the illunderstood “holy grail” of all states in southeast Europe. Whether

23144_GB.book Page 227 Monday, February 9, 2009 11:46 AM

A Survey of Reconciliation Processes

227

this substantial carrot will force parties to some degree of compromise remains to be seen.39 Second, much of society remains dangerously politicized: a result of both the war and the post-Communist transition processes still under way in the slowly democratizing state. The non-governmental reconciliation initiatives reviewed above are not necessarily always non-governmental as politics pervades religion and the media and influences many other parts of society. Civil society is still very weak and has been unable to begin to effectively and consistently shape and determine the political agenda. People don’t trust politicians, nor do they trust or believe in their ability to change the political system, and this has resulted in a state-wide political malaise. This makes it difficult to make the connection between the grassroots successes and the top-level failures, and it allows political cleavages to seep into what should be non-governmental initiatives. A third complicating factor in bih is the role of external politics on the country’s internal evolutionary processes. Both bih citizens and international interveners have bowed to external events and factors. The notion that the southeast European region must all resolve their problems (the unilateral declaration of independence by Kosovo, Serbia’s efforts to enter to the eu, Macedonia’s political challenges vis-à-vis Greece and nato membership, etc.) en masse in order for real progress to occur has some merit: regional problems stem from the dissolution of the formerly sovereign state of Yugoslavia, and many issues and challenges are shared. However, this situation also creates an environment of uncertainty that is not conducive to a reconciliation-focused dialogue, and it convinces citizens that change and reform is out of their control.

concluding thoughts A reader unfamiliar with bih might find this article to be hopelessly pessimistic. There is room, however, for patient optimism. The level of challenges facing this country is daunting, and it would be a struggle for the most established and economically stable countries. But there has been progress. Ten years ago anyone suggesting that there would be a state-level Ministry of Defence would have been laughed at. The debate on the need for constitutional reform has been unsuccessful but peaceful. While violence related to organized crime occurs with alarming regularity, political assassinations and

23144_GB.book Page 228 Monday, February 9, 2009 11:46 AM

228

Valery Perry

interethnic violence are nearly non-existent (a big difference when one considers the violence that has occurred in Kosovo). Significant riots or civil disturbances are rare. People want change, but they have at least been peaceful (some would say apathetic) while waiting for it. Public opinion polls consistently demonstrate that people are interested in their economic well-being more than they are in issues of nation or political dominance.40 Having experienced three and a half years of war, people prefer this cold peace. Yet a true peace awaits such time as the average, moderate citizens in the country become sufficiently disillusioned with the political paralysis and rhetoric, and demand change, saying “enough!” to corruption, political brinksmanship, and stagnant or declining standards of living. bih’s citizens need to recognize that they can change the game of zero-sum politics into one in which citizens’ needs are paramount, identity is a personal choice, and there is space for the multiple levels of reconciliation to intersect and mutually strengthen one another. Only then will true change and a secure future be possible for bih and the region.

notes

1

2 3

4

5

Valery Perry is the deputy director of the Education Department of the Organization for Security and Cooperation in Europe (osce) Mission to Bosnia and Herzegovina, based in Sarajevo. All views expressed are her own. The nine tracks are government, professional conflict resolution, business, private citizen, research, training and education, activism, religious, funding, and public opinion/communications. See the Institute for Multi-Track Diplomacy website at www.imtd.org (viewed 10 August 2008) for more information. The agreement is generally referred to as the Dayton Peace Agreement (dpa), though its formal title is the General Framework Agreement for Peace. For information on confirmed war dead, please see the website of the Research and Documentation Center, at , viewed 10 August 2008. Constitution of Bosnia and Herzegovina, Article 5. It should be noted that, because the state presidency is elected through the entities, bih does not have a single election in which all citizens participate and vote on the same slate of candidates. Una Sana/Bihac´, Tuzla Podrinje, Zenica Doboj, Gorazde, and Sarajevo.

23144_GB.book Page 229 Monday, February 9, 2009 11:46 AM

A Survey of Reconciliation Processes

229

6 Posavina, West Herzegovina, and Livno. 7 Central Bosnia and Neretva. 8 For a very thorough review of the impact of this structure on the political process in bih, see the Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative, adopted by the Venice Commission (European Commission for Democracy through Law), 11–12 March 2005. 9 Annex 10 of the dpa created the position of High Representative. See (viewed 1 August 2008) for more information on this international administration body. 10 See (viewed 10 January 2005) for more information on this body, including a 2004 final report. 11 A special arrangement requiring arbitration to determine the status of Brcko is another example of the practice of “putting off” contentious issues at Dayton in the interest of achieving peace as a minimum. 12 “International Mediator Says Bosnia’s Constitutional Structure Must Change,” Radio Free Europe-Radio Liberty Newsline, 23 September 2004, , viewed 10 January 2008. 13 Conor Gaffney and Aida Alic´, “First Regional Truth Commission Runs into Doubts,” Balkan Insight, 5 August 2008. 14 Beth Kampschror, “Documenta Project Aims to Deal with the Past,” Southeast European Times, 10 January 2005. See also the website of the Sarajevo-based Research and Documentation Centre at , viewed 25 January 2008. 15 The 1991 census indicated a population that was 43.7 percent Muslim, 31.4 percent Serb, and 17.3 percent Croat. In 1981, approximately 8 percent of people declared themselves as Yugoslav, while in 1991 approximately 5.5 percent chose this identification. 16 See Joshua N. Weiss, B., Blancke, B. Wulff, R.J. Wolfe, M. Young, and C.I. Shin, When Spider Webs Unite: Five Case Studies of the Third Side in Action (Cambridge, ma: pon Books, 2002). 17 For detailed statistics on the property return process, see the website for the bih office of unhcr at , viewed 1 August 2008. 18 Accurate statistics on return are difficult to estimate as there has not been a census in bih since 1991; the very debate on when to hold a census is politically charged. For more information on return and efforts to reverse ethnic cleansing, see, for example, Ó Tuathail and C. Dahlman, “The Effort to Reverse Ethnic Cleansing in BosniaHerzegovina: The Limits of Returns,” Eurasian Geography and Economics 45, 6 (2004): 429–53. ^

23144_GB.book Page 230 Monday, February 9, 2009 11:46 AM

230

Valery Perry

19 See (viewed 15 August 2008) for more information. 20 Swanee Hunt, This Was Not Our War: Bosnian Women Reclaiming the Peace (Duke University Press, 2004). 21 For a review of the issues surrounding education reform in bih, see Valery Perry, Reading, Writing and Reconciliation: Educational Reform in Bosnia and Herzegovina, ecmi Working Paper no. 18, September 2003, available at , viewed 1 August 2008; and Pilvi Torsti’s “Divergent Stories, Convergent Attitudes: Study on the Presence of History, History Textbooks, and the Thinking of Youth in Post-War Bosnia and Herzegovina,” December 2003, available at , viewed 1 August 2008. 22 Lessons for Education Reform from Brcko, osce Mission to Bosnia and Herzegovina, 2007, available at , viewed 10 August 2008. 23 See , viewed 1 August 2008. 24 See , viewed 1 August 2008. 25 For more information on the Centre for Civic Initiatives, see , viewed 1 August 2008. 26 In April 2006, while on a visit to Croatia, several Croatian citizens and international organization representatives commented on the relative weakness of civil society in places such as Zadar and Split, noting that this weakness could be due to the lack of intensive activities by outside organizations in these areas. They pointed to Vukovar as an example of part of the country that had experienced a large international presence (through the un Transitional Administration in Eastern Slavonia from 1996 to 1998) and that also had a stronger civil society framework than did other parts. 27 See, for example, Michael Sells, The Bridge Betrayed: Religion and Genocide in Bosnia (Los Angeles: University of California Press, 1998) for an overview of the use of religion in the recent wars. 28 In a personal conversation, a woman from Sarajevo (of mixed background) noted that, while before the war in order to be a manager or director one had to be in a party and not go to a church or mosque, since 1991 in order to rise to such positions one must be in a party and go to church or mosque. 29 The effort has been strongly supported by the World Conference on Religion and Peace. ^

23144_GB.book Page 231 Monday, February 9, 2009 11:46 AM

A Survey of Reconciliation Processes

231

30 Almost all non-Serbs were forced out of Banja Luka during the war. In 1993, as a part of the campaign of ethnic cleansing, Banja Luka’s sixteen mosques were destroyed. They were dynamited and often bulldozed so that no signs of rubble or even foundations remained. 31 Nicholas Wood, “Balkans Yield Suspects as Nationalism Wanes.” International Herald Tribune, 26 April 2005. , viewed 1 April 2008. 32 See , viewed 1 August 2006. 33 “Serbia: Apology Time,” Eric Gordy, Transitions Online, 10 December 2004. 34 Ibid. 35 BBC Monitoring European, 25 March 2005. Note: approximately eight thousand men and boys were executed and buried in mass graves in Srebrenica, and the main alleged perpetrator, Ratko Mladic´, continues to evade justice at the Hague. In Sarajevo, over ten thousand people (of all nationalities) were killed during the siege. 36 The Associated Press, 16 April 2005. Additionally, it was reported that several people attending the swearing-in ceremony did so while wearing T-shirts with the pictures of indicted war criminals Radovan Karadžic´ and Ratko Mladic´ – clearly not a sign of reconciliation! rferl Newsline, 19 April 2005. 37 “Tuzla, the Third Side and the Bosnian War,” in Weiss, When Spider Webs Unite, 92–112. See also , viewed 12 August 2008. 38 Duško Doder, “Reflections on a Schizophrenic Peace,” in After the Peace: Resistance and Reconciliation, ed. Robert L. Rothstein (Boulder, co: Lynne Rienner Publishers, 1999), 169. 39 The International Commission on the Balkans (April 2005) released a report arguing that European integration of the region as a whole is the only recipe for real stability and security. See The Balkans in Europe’s Future at , viewed 15 September 2006. 40 See, for example, the quarterly Early Warning System polls organized through the United Nations Development Programme at , viewed 10 August 2008.

23144_GB.book Page 232 Monday, February 9, 2009 11:46 AM

11 Tensions Between Human Rights and the Politics of Reconciliation: a South African Case Study STEPHANUS F . DU TOIT

an abiding tension Transitional justice seeks to manage a complex and delicate relationship between sensitive, yet essentially public concerns. This balancing act in the heart of the transitional justice agenda has been described differently: as the accommodation of justice and peace, of human rights and reconciliation, of victims’ rights and perpetrator demands or of legal processes and extrajudicial truth-seeking mechanisms. Times of transition therefore demand fine judgment, but also, given the public nature of the task, a shrewd communication strategy. Political parties as well as civic groups in transitional societies are ceased by this agenda for years beyond the actual transfer of power. The Truth and Reconciliation Commission (trc)1 was tasked to manage these tensions immediately after South Africa’s political transition. The aim of this chapter is to explore how this agenda was taken up in the post-trc era. The focus is on a variety of political parties and movements and a selection of their statements, speeches and debates related to the tension-filled relationship, inherent in most transitional justice agendas, between justice and reconciliation.2 The trc was furthermore set up, quite deliberately, as a public exercise. Victim hearings operated in tandem with the amnesty hearings – and did so self-consciously under the full glare of public media. Unsurprisingly, this combination of the highly sensitive nature of these matters, together with the deliberately public way in which they were handled, led to intense debates – both within the Commission and publicly. Central to these debates was the question of

23144_GB.book Page 233 Monday, February 9, 2009 11:46 AM

Human Rights and the Politics of Reconciliation

233

how to ensure that the trc “balancing act” did not compromise victims’ rights in unacceptable ways, while at the same time keeping perpetrators “onboard.” Yet, ultimately it was important to the Commission that victims, not perpetrators, had to shape, ascribe meaning to, and justify the choice for truth, amnesty, and reconciliation above judicial justice. They had to support the call for an end to violence and for measures to move forward. Their testimonies needed to set the tone for, make an impact on, and remind a broad church of South Africans of the public consensus about why perpetrators would go unpunished. The result was the widespread recognition in South Africa of the complementary validity of these goals – justice and reconciliation – allowing for the one to provide the parameters for the legitimate use of the other. This strategy turned out to be politically expedient: reconciliation without justice would have been unsustainable. It would have sought harmony without the effective promotion of more equitable relations. On the other hand, justice without reconciliation would have run the risk of endless cycles of recrimination and punishment, allowing the past to limit future possibilities. Furthermore, onesided emphasis on justice (or human rights) at the expense of reconciliatory measures would have meant a likely diminishing of the types of truth victims require in order to move on. The question is to what extent political groupings that have inhabited South Africa’s political landscape after the trc have taken notice of these lessons in articulating ongoing challenges in relation to the deeply sensitive yet public need for a balance between justice and reconciliation. The Post-TRC Context The trc and its nuanced “double agenda” were always meant to symbolize a new nation and its future priorities. Although the trc was meant to deal with the past, it would do so in a way that would set parameters for future politics. Although the current South African political landscape is no longer defined by simple lines of past conflict, demands for justice and reconciliation in relation to the apartheid-era conflict continue to influence public concerns in seemingly competing ways. At the same time, a range of “new” conflicts, not least those in relation to economic competition, continue to emerge, reminding South Africans how delicately balanced

23144_GB.book Page 234 Monday, February 9, 2009 11:46 AM

234

Stephanus Du Toit

the original social and political compact was, and how delicate its newly democratic institutions still are. Within a context of profound social and economic change, South African politics are changing too. On the governing party side, the battle for the future direction of the African National Congress (anc) has intensified since the landmark conference at Polokwane in December 2007, when Jacob Zuma defeated Thabo Mbeki for the party’s presidency. Since then, fissures in the tripartite coalition between the anc, the South African Communist Party, and the Confederation of South African Trade Unions have become increasingly visible, with a powerful leftist lobby organizing around Zuma, campaigning for more regulation of the economy and radical land reform plans, in contrast to those in favour of a growth-based development model. Echoing these sentiments from the grassroots, communities with names such as Diepsloot, Khutsong, and Phomolong have become symbolic of an increasing social protest voicing impatience with the perceived lack of service delivery to the poor.3 On the other end of the political spectrum, the National Party died a peaceful death in the arms of its former enemy, the anc. Despite the fact that many ex-np politicians accepted prominent jobs in the anc, white and many “coloured” voters have not followed and are increasingly apathetic. Vocal minorities in both these groups are claiming to be victims of “reversed racism” under the guise of affirmative action and transformation. Political participation rates are at an all-time low. In what follows I provide a set of “snapshots” of political and civic discourses in which well-known politicians and civic leaders set out their understanding of the relationship between justice and reconciliation, or in different terms, human rights and reconciliation. These typologies correspond to what Max Weber calls an “ideal type,” constructed from a deliberate selection of elements from reality that form a logically precise and coherent whole but that, as such, are not to be found in reality. The various individual elements do exist, however, and together they delineate what is best described as an artificially constructed “type.” In Weber’s words, typologies of this nature do not refer to “any empirical average type”4 but, rather, enable comparative study of broad social phenomena. Applied to our discussion, this approach has two advantages: first, it unmasks political opportunism. It provides a more representative and systematic insight into how concepts are used rather than

23144_GB.book Page 235 Monday, February 9, 2009 11:46 AM

Human Rights and the Politics of Reconciliation

235

relying on one or two expedient quotations. Second, it enables us to develop the basis for comparative analysis between respective positions. Different parties present different “rights” as fundamental to their support for the legitimacy and future of the negotiated settlement. This provides interesting insights into the way they conceive and communicate the balance between justice and reconciliation. These “snapshots,” or “typologies,” are constructed from speeches given by prominent politicians, civic leaders and civic groups between March 2004 and March 2005 when this research was conducted. In the case of the Democratic Alliance (da), I focus on speeches by Tony Leon; for those concerned with minority and cultural rights, on expresident F.W. De Klerk; for the African Christian Democratic Party (acdp), on Kenneth Meshoe and Steve Swart; for the African National Congress (anc), on former president Thabo Mbeki; and for social movements on the left, on the Land Access Movement, the Landless Peoples Movement, and the Treatment Action Campaign.

five types of human rights Typology 1: Tony Leon and “The Right to Be Judged on Merit Alone” After decades of racial oppression, the obvious triumph of the South African Constitution lies in its affirmation of fundamental human rights, including the equality of every citizen before the law, non-racialism and non-sexism, universal adult suffrage, dignity, freedom and security of person, and a right to life. In addition, every South African has a right to privacy, freedom of religion, and freedom of expression, assembly, demonstration, and association. Tony Leon was leader of the official opposition, the da, until May 2006, when Helen Zille took over and decisively shaped the dominant discourse of the party of issues of justice and reconciliation. The party, under Leon, had a majority white and coloured following that collected 12.37 percent of the vote in the 2004 general elections. To Tony Leon, individual rights are not only constitutionally granted but also “inalienable” and “natural.” Each human being is fundamentally equal by virtue of his or her humanity. He explains: “The rights of the constitution were not granted by the political majority, but resided ‘in each of us as a natural and fundamental part of who we are as human beings and as citizens.’”5

23144_GB.book Page 236 Monday, February 9, 2009 11:46 AM

236

Stephanus Du Toit

Given South Africa’s history, it is of special significance that these inalienable human rights hold “a colour-blind promise.” Human rights make it possible to transcend the racism and sexism that defined our past and that should not be allowed to define our future “in contrast to what the anc often tells us.”6 The latter qualification is motivated, among other factors, by government-driven transformation programs that continue to pose explicitly racial targets.7 To Leon, anc-led transformation initiatives therefore compromise the most fundamental human right – that of equality. Equality, to Leon, means being judged on merit alone – namely, by those indicators most directly relevant to the purpose of the competition. Race should never be accepted as the dominant criterion: “From my earliest days,” Leon stated in 2004, “I learnt that only merit and not colour should count. And so above all, I would like to see a South Africa in which no one could play the race card because race just wouldn’t matter. But let us be frank, it is not yet so.”8 If voted into power, the da’s empowerment policies would differ from those of government: In employment, procurement and ownership, race must be considered alongside other factors, but it cannot become the deciding factor. When race becomes all-important, we end up in a maze of definitions worthy of the apartheid era … Above all there must be no group in the country that feels it is regarded as “collectively guilty” for the past. In the South Africa I dream of there will be no room for such notions. We will be happy to treat each other equally, without quoting our sometimes unhappy history against one another … We have to draw a line and say in the new South Africa we’re all equal, we all have the same rights. The real test of human rights in a democratic South Africa, now and in the future, is whether our nation can avoid repeating the mistakes of the past.9 To Leon, reconciliation, on the other hand, is the “drawing of a line” beyond which the realization of a “non-racial” dream becomes possible. During President Mandela’s time in office Leon believes this line was drawn and respected. Reconciliation became policy. However, under the “race politics” of President Mbeki, Leon sees reconciliation slipping away. Racial politics have, in fact,

23144_GB.book Page 237 Monday, February 9, 2009 11:46 AM

Human Rights and the Politics of Reconciliation

237

become so prevalent that minorities are feeling increasingly insecure and excluded. So, according to Leon: There are many reasons why so many South Africans, myself included, are nostalgic for the days when Nelson Mandela was President. He held out to us a vision of racial reconciliation. Turning our backs on the narrow nationalism, white or black, which had tried to impose the interests of one group over all the others. Mandela’s vision of racial reconciliation has been lost. [But] President Thabo Mbeki supports dictators, not human rights.10 Leon’s vision of a reconciled society corresponds to that of a classic liberal society. It assumes the individual as the unique priority: “The first difference between the anc and the da, then, is that the da believes the individual is the basic unit of society, while the dominant part of the anc believes it is the racial group.”11 In contrast to the da, Leon describes the anc’s vision of reconciliation as “illiberal” – demonstrated in policies derived from, and reacting to, broader social realities (collectivist notions) than what a sole focus on the rights of individuals would allow: “South Africa appears to be moving to what Fareed Zakaria called an ‘illiberal democracy.’ The da way … rests not on the collectivist notion of ‘the people’ or the ‘African majority,’ but on the liberal notion of the individual who enjoys a unique view of the world and whose independence must be nurtured and cherished.”12 Yet, if Leon is worried by some of the anc’s policies, he is horrified by its reaction to the human rights crisis in Zimbabwe. Zimbabwe is a clear proof to Leon that, to President Mbeki, “human rights are not fundamental. They are flexible, depending on the political interests and allegiances of the anc.”13 By contrast, if the da were in power, “we would restore human rights to its rightful place at the top of South Africa’s international priorities … In Zimbabwe we will speak out loudly and forcefully in favour of human rights and democracy. We will implement a Road Map to democracy … which is enforced by smart sanctions against the Mugabe regime.” For Leon, naturally endowed human rights provide the justification for the most basic constitutional right – individual freedom from all forms of majoritarianism, racebased policies, or assumptions of collective guilt for the past.14 Leon’s views have been criticized, not least by former president Mbeki. Consider the following statement made in March 2005:

23144_GB.book Page 238 Monday, February 9, 2009 11:46 AM

238

Stephanus Du Toit

The right wing in our country argues for a fundamentalist individualism and a doctrine of meritocracy. These positions were originally propagated principally by British philosophers, who correctly supported evolution from feudalism to capitalism. Applied to our situation with our specific history of the systemic and conscious disempowerment of the black majority, the superimposition of the neo-conservative/neo-liberal doctrines of fundamentalist individualism and meritocracy on what we have to do, cannot but ensure the protection of the privileged and exclusive “wealth and lifestyle” that white South Africans attained as a result of 350 years of colonialism and apartheid.15 Leon’s non-racial meritocratic approach to rights can be challenged, not least within the context of South Africa’s transitional politics. An emphasis on individual rights is obviously central to the South African Constitution, but to juxtapose individual justice with social transformation in the way that Leon does seems to provide a too narrow base for meaningful socio-economic redress. For Leon to claim that “race must be considered alongside other factors, but it cannot become the deciding factor,” may be correct in principle, but in practice this approach may well underestimate the measure to which a race-obsessed past continues to affect present politics. To say that “we will be happy to treat each other equally, without quoting our sometimes unhappy history against one another” is to play into the hands of those who advocate forgetting the past. A purely nonracial meritocratic interpretation of the Bill of Rights together with reconciliation understood as “a line under the past” does not do justice to the victim-centred and historically sensitive approach to managing the tensions between justice and reconciliation developed by the trc. Policies to redress past injustice are therefore deemed unjust because they do not correspond to criteria for individual justice and merit. It seems inadequate to frame justice so simply in terms of individual rights within a society in which group identity remains such an accurate predictor of social, political, and economic positioning. Typology 2: F.W. De Klerk and Right to Spheres of Influence Group rights are claimed to different ends in South Africa: to articulate and assert the aspirations of the poor and marginalized but also to articulate the fears and cultural objectives of minority cultures – most vocally, the Afrikaans community. The Constitution

23144_GB.book Page 239 Monday, February 9, 2009 11:46 AM

Human Rights and the Politics of Reconciliation

239

does recognize cultural rights. The debate, however, is about what this means to a minority, such as the Afrikaners, who, through past power, ensured the predominance of their language and culture in a range of national institutions such as courts, universities, schools, and hospitals. As transformation efforts challenge minority supremacy in these institutions, prominent political figures in the Afrikaner community, such as F.W. De Klerk, resort to human rights discourses to claim cultural self-determination. When F.W. De Klerk walked out of the Government of National Unity in June 1996, he left the National Party in the hands of Marthinus van Schalkwyk, who, in a bid to shed its past image, relaunched the party as the “New” National Party. Yet, after a succession of unsuccessful alliances, the New National Party was so weakened (it gained a mere 1.65 percent of the vote in the previous elections) that it eventually merged with its once arch-enemy, the anc. Van Schalkwyk’s actions, now as minister of environmental affairs, did not carry the approval of De Klerk, who continues to bemoan the demise of a political home for Afrikaners. The National Party entered negotiations in 1990 with precisely these minority rights as a projected outcome. Nelson Mandela describes these aims as “a system of power-sharing based on group rights, which would preserve a modified form of minority power in South Africa. [De Klerk] was decidedly opposed to majority rule, or ‘simple majoritarianism’ as he sometimes called it, because that would end white domination in a single stroke … I described it to Mr De Klerk as apartheid in disguise, a ‘loser-takes-all’ system.”16 After the talks broke down in the wake of the Boipatong massacre in 1992, a Record of Understanding was signed between De Klerk and Mandela on 26 September 1992 outlining the conditions for resuming negotiations. It is in this agreement that the anc’s insistence on liberal constitutionalism – favouring individual rights above group rights – began to have dominion over ideas of power sharing and “group rights” put forward by the np. Thirteen years later, on 28 February 2005, F.W. De Klerk made a speech at the Cape Town Press Club. Coaxed in affirmation of the new order (“this is not the time for negativism and despondency”) and admitting that, for “the great majority of white South Africans life continues to be pleasant,” De Klerk nonetheless revisits an old theme: Ten years later it is becoming increasingly apparent that my concerns regarding the future of our minorities were all too well

23144_GB.book Page 240 Monday, February 9, 2009 11:46 AM

240

Stephanus Du Toit

founded … The reality now is that whites – I believe members of other [racial] minorities as well – feel increasingly disempowered … The anc’s idea is that in a perfectly non-racial society all institutions in the public and private sectors should reflect the ethnic composition of society at all levels. Accordingly, the owners, the boards, top management, middle management and employees of all companies and organizations should ideally be 76% black, 12% white, 9% coloured and 3% Indian … [This] means that minorities would be subject to the control of the majority in every area of their lives – in their jobs, in their schools, in their universities and in their sports. In effect, the concept of across the board representivity is irreconcilable with the constitutional principle of cultural diversity. The right to freedom of association means that there is nothing intrinsically wrong if cultural groups tend to associate with their own kind and flock together in particular neighbourhoods – as they do indeed all over the world.17 And flock together they do. Research conducted by the Institute for Justice and Reconciliation for its project, The Reconciliation Barometer, indicates that, by far, the most interaction between races occurs in the working environment. At the social level most South Africans are not integrating, and of all the race groups, the white minority shows the least inclination to integrate. The “wish” to communicate with members from another race is also lowest among whites (13 percent), compared to black (29 percent), Indian (34 percent) and coloured (60 percent). From the data it is also clear that over 90 percent of richer South Africans (overwhelmingly white) are against mixed marriages or mixed neighbourhoods.18 These findings point to one of the enduring impediments to reconciliation. Politically disenfranchised white communities are privatizing virtually every aspect of their lives, and, although they are prepared to coexist peacefully and to cooperate in the workplace, social mixing, by and large, remains unrealized. De Klerk defends this situation not only as natural but also as a constitutional right – the right of free association: The debate must not be seen as an attempt by white South Africans to cling to the privileges of the past – which is the general response from blacks as soon as whites start to talk about transformation. At the same time it should be clearly understood that property

23144_GB.book Page 241 Monday, February 9, 2009 11:46 AM

Human Rights and the Politics of Reconciliation

241

rights are not a privilege; the right to maintain cultural diversity is not a privilege; the right to educate our children in the cultural milieu of our choice is not a privilege; the right to freedom from racial discrimination is not a privilege. These are all fundamental rights that are guaranteed by our constitution. The essence of the debate will be the manner in which they can be balanced with the rights to equality and decent conditions of life that are also enshrined in our constitution. The stakes involved are very high.19 De Klerk advocates an approach to transformation that recognizes the right of institutions, communities, and associations to reflect particular interests and identities. He reminds us that the Constitution identifies eleven official languages in its founding provisions, and he exhorts the state to “take practical and positive measures to elevate the status and advance the use of these [indigenous] languages.” It also asserts the right to use language and to participate in the cultural life of choice. Furthermore, persons belonging to cultural, religious, or linguistic communities may not be denied the right to enjoy their culture, practise their religion, and use their language; or to form, join, and maintain cultural, religious, and linguistic associations. De Klerk’s view is often repeated in Afrikaner debates. Leopold Scholtz, the deputy editor of the Afrikaans daily Die Burger, the biggest selling newspaper in the Western Cape and the mouthpiece for Afrikaner interests, writes: In an ethnically divided country like South Africa, there is general consensus that some things should not be interfered with unless there is very, very good reason for doing so. Mandela realized this when he was prepared to lose some popularity within his own party by protecting the Springbok as a symbol for the whites, and for the Afrikaners in particular. Mbeki is not showing the same wisdom. True, the Pretoria decision [to rename the city “Tswane”] was not taken by him, but he is seemingly not lifting a finger to stop it. Don’t let the 1994 agreement fall apart. The agreement meant that we were able to avoid a destructive civil war.20 Minorities, especially those who mourn the loss of illegitimate power, seem to be demanding – as a non-negotiable and fundamental human right – structural vestiges of identity in which they can assert

23144_GB.book Page 242 Monday, February 9, 2009 11:46 AM

242

Stephanus Du Toit

their own identities. To a government concerned to promote transformation, these demands smack of neo-apartheid parochialism – especially in the light of the failure of white political leadership during the transitional process to openly acknowledge responsibility for apartheid. There is a sense that the outstretched hand of Mr Mandela went unreciprocated. On the other hand, there is also a sense among Afrikaners that the shrinking of their symbolic universe is presenting a crisis. To De Klerk, and those of like mind, the Constitution is premised on the right of freedom of association. Freedom of association implies the right of minority groups to build homogenous institutions, communities, and associations not reflective of national demographics and not subject to majority control. Violation of this right could threaten South Africa’s peace deal. President Mbeki recently responded as follows to the resurgence of minority right claims: “It is sad and unfortunate that opinion-makers such as F.W. De Klerk, Tim du Plessis and Leopold Scholtz seem to be completely blind to the imperative to address the equitable empowerment of all South Africans, bearing in mind the debilitating burden of our racist past.”21 To Mbeki, De Klerk advocates minority rights when the need for empowerment is in fact the more important priority since it involves the majority of the population. Consequently, De Klerk is accused of not reading the provisions for minority rights in the framework in which the Constitution presents them, namely: “to promote and develop peace, friendship, humanity, tolerance and national unity among cultural, religious and linguistic communities, on the basis of equality, non-discrimination and free association [and to] recognise the injustices of our past … to heal the divisions of the past.” For Mbeki, De Klerk’s appeal to minority rights, on behalf of a threatened and disempowered Afrikaner minority, represents little more than a desperate scramble for power and identity, providing a distraction from the central task of democratic South Africa – the uplifting and empowerment of the disadvantaged majority. This argument reaches to the obvious Achilles heel of those who claim that the Afrikaners are suffering from a systematic abuse of minority rights in the new South Africa; namely, that any curtailing of their rights is for the benefit of people who not only suffered far greater injustices over a far longer period but who

23144_GB.book Page 243 Monday, February 9, 2009 11:46 AM

Human Rights and the Politics of Reconciliation

243

also suffered these violations at Afrikaner hands in the name of Afrikaner nationalism. Victimhood is deeply embedded in the apartheid-generated Afrikaner identity. Stories of identity built around events such as the devastation of the South African war against Britain between 1899 and 1902, in which twenty-seven thousand women and children died in concentration camps, have created a strong and abiding sense of victimhood. Sacrifices required by the new regime are consequently often, and ironically, interpreted within the historical grand narrative of victimhood. De Klerk’s argument operates within a metanarrative in which the interests of one group may be allowed to overshadow those of other groups due to historic privilege, where group rights may in fact serve to entrench inequality and separation. De Klerk’s interpretation of human rights as the right to freedom of association walks into the same conceptual snare as does that of Leon’s uncritical individualism (albeit from the opposite direction) – divorcing human rights and justice claims from concerns articulated within the metaphor of reconciliation. Whereas Leon’s paradigm does not allow adequate analysis of the implications of social and historic realities, De Klerk’s notion of group rights tends not to fully recognize the individual rights of the poor majority to redress for historical injustice. Both positions finally operate without due regard to the lingering after-effects of the history of apartheid. Typology 3: Reverend Kenneth Meshoe and the Right to a Moral Society With a showing in the last general election of only 1.6 percent, the African Christian Democratic Party may not be a realistic candidate to assume government in the foreseeable future. Yet, its arguments, based in moral conservatism and religiosity reminiscent of the conservative Republican base in the so-called “Deep South” in the United States, represents an agenda with considerable public appeal in South Africa. In 2004, the Human Sciences Research Council of South Africa conducted a national survey to “map” social attitudes. The research looked at five thousand adult South Africans. According to the results, the vast majority of citizens oppose abortion and 78 percent

23144_GB.book Page 244 Monday, February 9, 2009 11:46 AM

244

Stephanus Du Toit

reject same-sex adult sexual relationships.22 Another recent poll shows that 79 percent of South Africans indicate that they belong to some form of Christian denomination.23 Reverend Kenneth Meshoe is therefore probably not exaggerating when he says: “Most South Africans who know that miracles don’t just happen, but believe that there is a miracle-worker, are grateful to God for the peaceful transition to democracy in 1994.” “The truth is,” Meshoe continues, that God of heaven had intervened, peace prevailed and we were all relieved and grateful … Ten years of democracy have brought with them both good and bad. South Africans have received a mixed bag of services, dignity, respect, arrogance, rebellion and selfishness. Our people may be free to exercise their right to vote, but many do not know how to balance their rights with responsibility. Our government has made laws that have helped to promote equality for all, and also laws that have undermined the laws of God. The government has succeeded in many of their endeavours, while failing dismally in others.24 Meshoe elaborates further: “We strongly believe that we can only successfully build a nation by building its families. Nation-builders take the family seriously. That is why the acdp believes not only in the rights of individuals, but also in the rights of families.”25 The acdp is prepared to acknowledge human rights, but only insofar as they coincide with one particular brand of Christian morality. To Meshoe, secular constitutions run the risk of propagating a “mixed bag” of rights, some godly and some “ungodly.” One way to circumvent this problem is for political forces to openly acknowledge “their dependence on God.” In this respect, in the eyes of the acdp, the American Constitution provides a better solution than the French Constitution. Steve Swart, mp for the acdp, explains: The French Declaration of the Rights of Man placed rights in the strong arm of the state. Rights were given by the state and could just as easily be taken away. The bloody French revolution followed. Contrasted with this is the American Declaration of Independence of 1776 that states “all men are endowed by their Creator with certain inalienable Rights.” What secular humanists call rights, such as homosexual rights, lesbian rights, prostitute

23144_GB.book Page 245 Monday, February 9, 2009 11:46 AM

Human Rights and the Politics of Reconciliation

245

rights, abortion rights, the acdp consistently calls wrongs. How can we have a moral regeneration in a climate of moral relativism? Today, the battle to build South Africa is not physical, but moral.26 To the acdp, Christian moral dictates provide non-negotiable rights. God-given rights are imprescriptable and trump secular provisions. The constitutional right to equality of gay people, for example, is trumped on the basis of moral dictates based on a “higher authority” of Holy Scripture. Legislation seeking, for example, to promote the equal rights of gay and lesbian groups is a retrogressive violation of human rights. Another such example is the violation of the right to life of unborn babies: “Sister Charles is a woman of courage and conviction. She has refused to perform abortions because of her Christian belief in the sanctity of life. Consequently she has been discriminated against, but has taken her case to the Equality court. In this way she upholds not only her constitutional right to freedom of conscience and belief, but also the rights of unborn children and those of other pro-life personnel.”27 This point is made more contentiously elsewhere: “Rapists and murderers have constitutional protection and the right to life, but these innocent unborn babies have no rights whatsoever.”28 Government rejects the acdp’s stance that South Africa’s Constitution should reflect Christian values. According to former president Mbeki, this would reintroduce religious bigotry into our politics, entrench inequality … and block national unity and reconciliation … As we all worked on our constitution … we were fully aware of the damage caused to all our people by the injection of Christian fundamentalism into our country’s politics. The apartheid system has justified the oppression of the majority through a crude distortion and vulgarization of the Holy Scriptures … the new South African must be built on the principle that God created all human beings in his image … Accordingly the new multi-ethnic, multicultural and multi-faith non-racial and non-sexist South Africa had to be a secular state. 29 By contrast, Meshoe claims that the South African transition was a miracle and human rights a gift from God. The fact that the South

23144_GB.book Page 246 Monday, February 9, 2009 11:46 AM

246

Stephanus Du Toit

African Constitution does not acknowledge this, he believes, opened the door for influences other than “God’s Word” to determine what are recognized as rights and what are not. The result is a mixed bag of “Godly rights” and “evil wrongs” parading as rights. Moral rights, as understood by the acdp, are at variance with the natural rights of the Constitution. The latter are possessed by each person qua his or her humanity; the former only apply to those who live in accordance with the Christian faith. This bifurcated notion of rights fails the reconciliatory tone of inclusion set by the trc. The trc’s own overt religiosity (for which it was both lauded and criticized) carried a different message – of more continuity between faith and culture, and between human dignity and universal human rights. Christian faith, for Archbishop Tutu, was a motivating factor in the dispensation of universal political forgiveness and inclusion, not, as is the case in acdp rhetoric, the basis for derogating certain categories of basic rights on the basis of moral choices specific to one particular faith. At the same time, we need to recognize that theological notions of repentance and forgiveness did, at times, complicate the quest for political reconciliation. It is therefore important to emphasize that the notion of reconciliation as encounter and dialogue across all social lines formed the essence of its focus, despite its overtly Christian symbolism. Typology 4: Thabo Mbeki and the African Right to Dignity Given that he was leader of the party that attracted 69.69 percent of the vote in the 2004 general election, that had credentials as a liberation movement, that presided over a vast transformation process, and that, despite its weaknesses, continued to enjoy international confidence, Mbeki’s views on the nature of the relationship between reconciliation and justice, while he was in power, shaped post-trc politics like those of no other political leader. Whereas all three previous typologies tended, in varying degrees, to deny the importance of history in their human rights hermeneutics, Thabo Mbeki’s typology views human rights as having an irrevocably social and historical context. In South Africa, that context is the liberation politics of postcolonial Africa. Human rights are not abstract, ahistorical laws but, rather, principles over which people have fought, suffered, and died during the struggle against

23144_GB.book Page 247 Monday, February 9, 2009 11:46 AM

Human Rights and the Politics of Reconciliation

247

colonialism, apartheid, and ongoing poverty. Human rights have an intimate connection with memory. The past provides directives for the interpretation and implementation of human rights, rescuing us from ahistorical denialism. Said Thabo Mbeki: On March 21st we will celebrate our Human Rights Day. We deliberately chose this day as our Human Right Day to honour the people who were massacred at Sharpeville on March 21, 1960 … This was a struggle to end white minority rule and racial discrimination, to replace them with a non-racial and non-sexist democracy. It was not a struggle to replace white domination with black domination, precisely because the very core of the liberation struggle was to end racism in all its forms.30 Mbeki sees the anc as a natural vehicle for the rights tradition in South Africa – one with historical legitimacy. He justifies this claim by reference to anc documents regarding human rights as early as 1943. The other parties are “late-comers”: Throughout its history, our movement upheld and defended this position without wavering. For instance, it was incorporated in the historic 1943 document, The Africans’ Claims,31 which preceded the un Declaration on Human Rights. It was proudly proclaimed in the 1955 Freedom Charter, which boldly stated that “South Africa belongs to all who live in it, black and white”; that “All national groups shall have equal rights”; that “All should be equal before the law”; and that “All shall enjoy equal human rights.”32 This historical perspective, together with the way it is reflected in the Constitution,33 provides justification for transformation programs designed to redress past injustice and to restore the human rights of all: “In reality, the social transformation programmes we are implementing are not only consistent with our constitution, but are prescribed by the same constitution … To respect and promote the letter and spirit of our constitution, one of the things we have to do, is to respond seriously to the requirement stated by the constitutional preamble to ‘recognize the injustices of our past.’” Mbeki sees transformation as his government’s historical duty. Therefore, allegations of race bias infuriate him:

23144_GB.book Page 248 Monday, February 9, 2009 11:46 AM

248

Stephanus Du Toit

[Afrikaner leaders] seem totally blind to the basic requirement that to protect the rights and privileges of the Afrikaners in particular and the whites in general, they need to be champions of the rights of all other South African race, linguistic, cultural and religious communities, including the rights and obligations contained in the Equality clause. It seems that they do not understand that what would cause “the 1994 agreement to fall apart” and lay the basis for a new “destructive civil war” would be our failure practically to respond to the imperative prescribed in the constitutional Preamble, to “recognize the injustices of our past.”34 Mbeki’s conception of rights cannot be understood apart from this determination to “engage the world from an African perspective.” Nowhere has this become clearer than in the debate surrounding human rights abuse in Zimbabwe over the past five years. In a 2003 letter entitled “We Will Resist the Upside-Down View of Africa,’ Mbeki reacts to criticism of his reluctance to back Zimbabwe’s continued suspension from the Commonwealth by quoting the Kenyan writer Ngugi wa Thiongo’s Decolonising the Mind: “[Imperialism] has turned reality upside down: the abnormal is viewed as normal and the normal is viewed as abnormal. Africa actually enriches Europe: but Africa is made to believe that it needs Europe to rescue it from poverty.” “In this way,” Mbeki continues, those who fought for a democratic Zimbabwe, with thousands paying the supreme price during the struggle, and forgave their oppressors and torturers in a spirit of national reconciliation, have been turned into repugnant enemies of democracy. Those who, in the interest of their “kith and kin” did what they could to deny the people of Zimbabwe their liberty, for as long as they could have become the eminent defenders of the democratic rights of the people of Zimbabwe.35 He then turns specifically to human rights advocates: In time, and in the interest of “kith and kin,” the core of the challenge facing the people of Zimbabwe … has disappeared from public view. Its place has been taken by the issue of human rights … It is clear that some within Zimbabwe and elsewhere in the world, including our own country, “treat human rights as a tool”

23144_GB.book Page 249 Monday, February 9, 2009 11:46 AM

Human Rights and the Politics of Reconciliation

249

for overthrowing the government of Zimbabwe and rebuilding Zimbabwe as they wish. In modern parlance, this is called regime change.36 Mbeki regularly expresses his support for the human rights of all people. He is fond of quoting the constitutional assertion that “South Africa belongs to all who live in it.” His political agenda, however, is to help Africa to “awaken” and to develop into a continent with dignity and self-esteem. Africa’s time has come. Africa’s right to dignity, so maligned over centuries, is therefore not negotiable. According to the president, minorities, especially apartheid beneficiaries, need to throw their lot in with this agenda, show solidarity with the transformation process, and stop complaining about reverse racism. Those who do not – who perpetuate insulting stereotypes of Africans, who insinuate that Africans “can’t keep it in their pants or keep their legs crossed” and are therefore prone to contracting hiv/aids through sexual immortality, who portray hiv/ aids as a “black problem,” or who complain about Zimbabwe simply because white people were among the victims but who fail to take any notice of Zambia, Rwanda, Sierra Leone, the dcr, or Swaziland – those are “so-called” human rights advocates who can barely conceal their unreconstructed racism and for whom the president cannot conceal his contempt. To Mbeki, human rights are concrete expressions of the right of all to a dignified life. They are sacred because they are concrete outcomes of a history of struggle, with enormous sacrifices for the dignity, equality, and freedom for all people – particularly for those who, historically, were denied their humanity. Human rights are vulgarized when they are claimed without due regard to this history. The priority to restore the dignity of the African continent and its people overrides other considerations. It is Mbeki’s point of no compromise. It is a struggle for human rights in all its forms, but, above that, it is a struggle for African dignity and for self-respect. Individual human rights do play an important role in the worldview of an African Renaissance. His ideal Africa would not oppress individuals, and yet, Africa’s liberation will not come without a struggle against racist forces that, throughout history, have proven themselves to be against, or indifferent towards, the liberation of Africa. It is Mbeki’s lack of decisive reaction to human rights abuses in Zimbabwe and the crisis of hiv/aids that may well illustrate the

23144_GB.book Page 250 Monday, February 9, 2009 11:46 AM

250

Stephanus Du Toit

danger of a utilitarian vision focused on the greater good, for the sake of which certain rights may be sacrificed. Archbishop Tutu articulates a common criticism of Mbeki’s stance when he claims: I am at a loss to understand the reasoning for a lifting of the suspension of Zimbabwe … Human rights are human rights and they are of universal validity or they are nothing. There are no peculiarly African human rights. What has been reported as happening in Zimbabwe is totally reprehensible and we ought to say so, regretting that it should have been necessary to condemn erstwhile comrades.38 Mbeki’s argument with Tutu and others over Zimbabwe is consistent with the argument that developed between him and the trc on the eve of the publication of the final report. Mbeki criticized the trc for its perceived equation of human rights violations committed by liberation forces with those commited by the state. Resorting to the “just war” theory, Mbeki claimed that “one of the central matters at issue was and remains the erroneous determination of various actions of our liberation movements as gross violations of human rights … The net effect of these findings is to delegitimise or criminalise a significant part of the struggle of our people for liberation and to detract from the commitment made in our Constitution to honour those who suffered for justice and freedom in our land.’38 Alex Boraine, deputychairperson of the trc, responded by pointing out that the major thrust of the trc report was indeed to condemn apartheid, acknowledging that at the heart of the conflict stood, in the words of the report, “an illegal, oppressive and inhuman system imposed on the majority of South Africans without their consent.”39 However, the trc report also stated that “not all acts of war could be regarded as morally or legally legitimate even where the cause was just.”40 Mbeki’s historical approach to the interpretation of human rights violations therefore reveals an important shortcoming: that of consistent application across political and social divides – and the tendency to overlook violations committed in the name of African liberation. Typology 5: Social Movements and the Right to a Life Free from Poverty – Now! South Africa remains one of the most unequal societies in the world, second only to Brazil.41 When Tony Leon accuses the government of

23144_GB.book Page 251 Monday, February 9, 2009 11:46 AM

Human Rights and the Politics of Reconciliation

251

squandering the talents of minorities, “social movements” accuse the government of not doing enough to realize the talents of the majority of South Africans.42 Two of the most visible social movements challenging the government from the left are the hiv/aids activist group Treatment Action Campaign (tac)43 and the Landless People’s Movement (lpm).44 Zachie Acmat, activist and leader of tac, describes the different rights claims involved in the fight for better health care: tac showed that, whether in a court case in Pretoria on the streets of Sao Paulo or Calcutta or New York – this was a battle to stop a holocaust against the poor. Drug companies regard intellectual property rights as God given rights. Despite being an atheist I ask, did God not give life before he gave us intellectual property rights? This is the simple message that condenses all the inequalities of rich and poor, developed and undeveloped countries, men and women, into the ravages of the single epidemic.45 Many ordinary South Africans feel that democracy has brought few tangible advantages. In 2001, the lpm called on the government to scrap the property rights clause in the Constitution and to replace it with an “obligations” clause on land ownership in order to make land that it underutilized, that was unused or unproductive, or that was owned by absentee landlords available for reform, thus turning land reform into a “Presidential Project.” The Land Access Movement of South Africa,46 an affiliate of the National Land Committee, together with the lpm,47 claims to represent rural communities from Gauteng, North-West, Mpumalanga, and Limpopo. On Human Rights Day in 2003, it issued the following declaration: We are saddened to announce that South Africa’s 19 million poor and landless rural people will not be celebrating Human Rights Day on March 21st, as this has become a day for the privileged few of our country to celebrate the rights which are not enjoyed by the majority of our people, while millions continue to suffer from landlessness, poverty and human rights abuses. Millions of poor and landless people are still waiting for their land to be returned to them, and millions more are suffering abuse and evictions from white-owned farms where they have lived and worked for generations. Almost nine years have now passed since the end

23144_GB.book Page 252 Monday, February 9, 2009 11:46 AM

252

Stephanus Du Toit

of apartheid, and less than 2% of the country’s land has been restored or redistributed from white to black, leaving 60,000 white farmers still controlling about 85% of our country, while the black majority is forced to eke out a living on the remaining 15% of land or toil under slave-like working conditions on the farms that belong to their ancestors, but which are still the “property” of white farmers.48 To these groups, increasingly restless, increasingly vocal, and increasingly likely to, in some form or other, develop into a political opposition to the left of the anc, the most basic human right is social and economic equality. Without equal opportunities, there can be no individual or collective freedom and certainly no dignity. Thus, if the constitutional vision of political, social, and economic equality is not realized within a reasonable time frame, it can only lose legitimacy as South Africa’s moral guide. As a result, in the eyes of these activists, civil disobedience, rolling mass action, and destabilization of the country would become inevitable. Zackie Achmat captures the spirit of many in the social movements who seek ways, some legal and others illegal, to further the inalienable rights of the poorest of the poor to a minimally decent life – a demand they view as non-negotiable and sd grounded in an inalienable right: The new generation popular democratic struggle … will seek to mobilize township residents, women, youth, students and workers in building mass democratic organizations. It will mobilize against tardy civil servants who oblige citizens to resort to class action suits to secure pensions and social grants to which they have inalienable rights. It will mobilize against the fraud and corruption, which undermines the morality and values of the new society that must be built and denies services and opportunities to those most in need. It will mobilize against any attempt to degrade the goal of broad based black economic empowerment to the creation of a few score multi-millionaires instead of the economic empowerment of the masses of our people. It will mobilize to ensure that the African renaissance is not limited to a renaissance of the already rich and powerful and new elites but is a renaissance foremost of Fanon’s wretched of this earth.49

23144_GB.book Page 253 Monday, February 9, 2009 11:46 AM

Human Rights and the Politics of Reconciliation

253

It is true, generally, that social movements have displayed constraint, seeking legal recourse rather than encouraging civil disobedience or violent insurrection. In this way major court cases have been won and important precedents set. There seems to be enough support in the legal system, for the time being at least, to persuade social movements that the legal route is realistic. The legitimacy of the quest of social movements to realize socio-economic rights and poverty alleviation is beyond dispute. Without improved achievement in this area, South Africa will remain vulnerable to sporadic violence, political opportunism, and weak institutional reform. Moreover, trc recommendations for extensive symbolic, material, and communal reparations to victims remain unfulfilled and, thus, so does the task of the Commission. The debate in South Africa is no longer about “what” but “how.” Social movements propose an agenda of radical redistribution at the cost of individual property and other rights. Branded by President Mbeki as the “ultra-left,” these groups remain an important component of the debate about how to structure the relationship between justice and reconciliation in South Africa. The critical question is whether the agenda that prioritizes social rights at the cost of individual rights to the extent that these quotations suggest will eventually produce the society that these movements envisage, or whether the erosion of individual rights to property – should this in any way become reality – may, in fact, have a detrimental longterm impact on reconstruction and development.

conclusion Societies seeking an avenue from entrenched conflict and oppression to democracy and human rights have a difficult road to travel. This is true not only of the first few hesitant steps but also of the long and winding road to social and economic reconstruction, where the legacy of the past is finally overcome. There is considerable consensus that human rights provide indispensable markers on this road(to be followed) as well as goals (to be realized). This discussion attempts to show how, after eleven years of politics of reconciliation and justice, appeals to the Constitution and its Bill of Human Rights are common currency among all political players. There is no political movement of any significance in the country that does not frame its objectives, concerns, and demands in terms of human rights.

23144_GB.book Page 254 Monday, February 9, 2009 11:46 AM

254

Stephanus Du Toit

This “popularity” of human rights may reflect cause for optimism as well as caution. On the positive side, the wide appeal of human rights is indicative of the success of inclusive, reconciliatory politics first incorporating and then influencing potential agitators and threatened minorities; on the cautionary side, as this analysis also shows, competing human rights discourses harbour radically different notions of what human rights are and how they should function. Tony Leon, Kennethe Meshoe, Thabo Mbeki, F.W. De Klerk, and the Landless People’s Movement disagree deeply when they make human rights claims. Human rights claims also add significant gravity to what otherwise would be less loaded political demands, and their infringement is often taken as sufficient grounds for challenging the total legitimacy of a political dispensation. The fact is that today these different understandings of human rights operate side by side, heightening tensions between parties who, for different reasons, believe their human rights are at risk. What is the way forward? Clearly, the acceptance of human rights within South African politics presents a step forward. Each typology presented above contains some truth. Each typology also harbours inherent dangers – dangers closely related to those nonnegotiable rights prioritized in each position. Each typology’s point of “no–compromise” is also the point at which the discourse that supports it becomes parochial and one-sided. Each typology’s unique strength (presenting the interests of a specific constituency) is at the same time also its weakness (excluding the interests of another constituency). Few could argue with Tony Leon about the importance of individual merit. Yet, this interpretation of human rights appears unfair when, in situations of gross inequality, it discounts historical and social realities in favour of a simplified meritocracy. Similarly, F.W. De Klerk’s emphasis on minority rights is indeed justifiable in terms of the Constitution. Yet, when applied without due regard for the need of empowerment of the majority, as well as the need for integration between traditional adversaries, this discourse only succeeds in entrenching inequality and promoting isolation between groups who are supposed to be reconciling – and all in the name of human rights. The need that the acdp points out – for a moral framework to provide substance and content to human rights – is indeed widely recognized. Few would argue against a regeneration of the social

23144_GB.book Page 255 Monday, February 9, 2009 11:46 AM

Human Rights and the Politics of Reconciliation

255

fabric of society – much of which was decimated by apartheid. Yet, moral regeneration is clearly not the prerogative of one faith or faith community. Essential to the vision of moral regeneration is the integrative moment of reconciling conflicting groups within a single body politic and economic. The Christian Right in South Africa, despite its widespread, informal appeal, has not been able to deliver such a vision. The anc’s focus on the liberation of the African continent from slavery, apartheid, and colonialism is hard to criticize. This is, after all, the central concern of the social contract upon which the South African democracy was founded. Yet, its failure to subject itself to the same human rights standards that it claims to work and fight for, detracts from its long-term legitimacy and the realization of its objectives. Many observers would agree with social movements on the left that political rights without socio-economic rights mean very little. They would also agree that change at this level has been excruciatingly slow. Impatience is understandable. Yet, these leftist discourses run into trouble when they call for extralegal or illegal measures to attain legal goals. Illegal means to constitutional ends undermines the integrity of the dispensation that is sought. The more arduous route of due legal process, specifically in a legal, democratic state with a legitimate government, offers more lasting and thorough change. Moreover, majoritarian emancipation has always to be balanced with individual and minority rights. South Africans are learning that when this balance is lost or threatened, emancipation can, in fact, become oppressive. Human rights claims in transitional societies therefore need to balance concerns for the self and the other. In a sense, they also need these different paradigms of human rights to coexist and shape one another. To this end, they need guidelines for application, a responsible hermeneutical framework. In South Africa this framework has a name: it is called “reconciliation.” With the contestation over and ambivalence about what human rights means for the practice of reconstruction, reconciliation provides an interpretative framework for a more inclusive implementation of human and/or constitutional rights. The trc reminds us, as indeed does the preamble of the South African Constitution, that reconciliation favours dialogue above unilateralism. Reconciliation emphasizes the importance of local

23144_GB.book Page 256 Monday, February 9, 2009 11:46 AM

256

Stephanus Du Toit

solutions, describing itself as indigenously South African, as a home-grown strategy rooted culturally in ubuntu and toenadering, as South African politics by and for the South African people. At the same time, reconciliation processes cannot flaunt international norms and rules. Reconciliation is inherently pragmatic, development-minded, and anticipates the future, yet it it acknowledges and memorializes past suffering. As it seeks future solutions, it also searches for ways to strengthen common memory. Reconciliation seeks to include all groups in one socially cohesive political and economic community. At the same time, the rights of the defenceless, the victims, and the poor need to be repaired, defended, and extended as a matter of priority. It is against these ongoing challenges that South Africans will continue to measure their politicians and civic leaders. The task is for the various interpretations detailed above of a human rightsbased or just society, to be allowed to co-exist in creative and constructive engagement. The ethos of political reconciliation allowed for such space to exist during South Africa’s political transition and ought to keep this space, fifteen years later, from closing down. Reconciliatory dialogue is about more than exercising the right to freedom of speech: it is about the quality of political discourse as the country seeks to preserve a fragile unity in search of social justice for all.

notes Dr Du Toit is executive director at the Cape Town-based Institute for Justice and Reconciliation and research Associate at the University of Stellenbosch. 1 The trc was by no means a perfect exposition of this relationship, and subsequent study, both domestic and international, has produced important criticism that needs to be taken into account for future efforts. Yet, the commission did perform an adequate job, given its mandate and its constraints. It has in fact affected public perception and helped to lay a first building block for a common memory. As a result of the highly public victim-hearings, it has reduced the possibility of a revisionist denial or the downplaying of past political suffering. It also created a shared point of reference and debate for discourses with almost nothing in common. Today, ten years later, it is this legacy of the trc, more than any other, that

23144_GB.book Page 257 Monday, February 9, 2009 11:46 AM

Human Rights and the Politics of Reconciliation

2

3

4 5

6

7

257

continues to affect the South African body politic. Whereas the unfinished business of amnesty has largely faded into insignificance, the legacy of public acknowledgment (imperfect as it was) continues to shape political discourse. For a more detailed account of this type of human rights hermeneutics, see Mieke Holkeboer, “Rethinking the Universal in Universal Human Rights: A Hermeneutical Approach: (PhD diss., University of Chicago, 2003). Compounding the scenario of deepening poverty in the face of ostentatious wealth are the twin social scourges of hiv/aids and violent anti-social behaviour, including organized and domestic crimes. The implosion of South Africa’s neighbour and main regional trading partner, Zimbabwe, to levels of political anarchy and economic meltdown reminiscent of apartheid South Africa has not helped either. Max Weber, The Protestant Ethic and the Spirit of Capitalism (New York: Charles Scribner’s Sons, 1958), 200. Tony Leon, “Some Human Rights in Retreat,” speech delivered at Tygerberg Street People Assessment Centre, 22 March 2005, available at , viewed 6 April 2005. Tony Leon, “Leon Blasts anc on Minorities,” News 24.com, 21 March 2005, available at , viewed 6 April 2005. An Institute for Justice and Reconciliation publication, Taking Power in the Economy: Gains and Directions, critically assesses progress in four areas: unemployment, poverty, inequality, and education. As may be expected, the findings present a mixed scorecard: • The ta shows that, despite the fact that a million new jobs had been created since 1994, the number of jobseekers have also exploded, mainly as a result of rising rural deprivation and a steep incline in women work seekers. • These conditions have contributed to more poor people in 2001 in South Africa than in 1996. • The ta shows that economic growth has been slow but steady, while inflation steadied downward, but bee (Black economic empowerment) is not yet an anti-poverty strategy. • Education has delivered relatively disappointing results with regard to producing a better-educated workforce with more mathematically skilled members. For more information, see Susan Brown and Alta Fölscher, Taking Power in the Economy: Gains and Directions (Cape Town: Institute for Justice and Reconciliation, 2004).

23144_GB.book Page 258 Monday, February 9, 2009 11:46 AM

258

Stephanus Du Toit

8 Tony Leon, ‘We Must Make All Our Dreams Come True,’ Statement issued on 23 March 2004, available at , viewed 6 April 2005. 9 Tony Leon, “Leon Blasts anc on Minorities.” 10 Tony Leon, “We Must Make All Our Dreams Come True.” 11 Tony Leon, ‘The da’s Vision: An Open, Opportunity Society,’ 16 June 2004, available at , viewed 6 April 2005. 12 Tony Leon, ‘Deconstructing the anc’s Agenda,’ 10 June 2004, available at , viewed 6 April 2005. See also Tony Leon, “The Need to Preserve Judicial Independence: A Warning,’ speech delivered at the Oliver D. Schreiner School of Law, University of Witwatersrand, 11 March 2003, available at , viewed 6 April 2005. 13 Tony Leon, “We Have Rights on Paper But Not in Practice,” statement issued on 21 March 2004, available at , viewed 6 April 2005. 14 Leon explains minority rights not as different types of rights, such as socially or culturally determined rights, but, rather, as individual rights of those persons who happen to be members of minority groups. Despite the increasing frequency of reference to minority rights in Leon’s speeches, individual rights remain his ideological focus. See Tony Leon, ‘Human Rights Mean Nothing if the Rights of Minorities Are Ignored,” 21 March 2005, available at , viewed 6 April 2005. 15 “A vitoria e certa! – The Sociology of Public Discourse in Democratic South Africa/Part X,’ anc Today, 5/11, 18 March 2005, available at , viewed 6 April 2005. 16 Nelson Mandela, Long Walk to Freedom (London: Abacus, 1994), 691–4. 17 F.W. De Klerk, “The Role of Minorities in the New South Africa,” speech delivered to the Cape Town Press Club, 28 February 2005, available at , viewed 22 April 2005. 18 For more information, see , viewed 22 April 2005. 19 F.W. de Klerk, “Economic and Social Transformation: The Challenge of the Second Decade of the New South Africa,’ speech to the Foreign Correspondents Association, Johannesburg, 15 March 2004, available at , viewed 22 April 2005. Leopold Scholtz,”Die 1994-ooreenkoms dreig nou om uit te rafel,” Die Burger, 11 March 2005. Thabo Mbeki, “Human Rights, Black Aspirations and White Fears,’ anc Today, 5/11, 18 March 2005, available at , viewed 6 June 2005. Anonymous, “South Africans Disapprove of Homosexuals, Abortion,” Afrol, 21 October 2004, available at , viewed 6 June 2005. This data, extracted from the 2004 Markinor’s M-Bus Survey, is based on a nationally representative collected sample. Kenneth Meshoe, “Reply to the State of the Nation,” 17 February 2005, available at , viewed 6 June 2005. Meshoe, “Reply to the State of the Nation.” Steve Swart, “Human Rights as a Pillar for Nation Building,” parliamentary speech, 19 March 2003, available at , viewed 6 June 2005. Kenneth Meshoe, “Achievements of African Women,’ 10 November 2004, available at , viewed 6 June 2005. Kenneth Meshoe, “Africans Must Stop Blaming Colonialism,” 25 May 2005, available at , viewed 6 June 2005. Thabo Mbeki, “Our Constitution Reflects the Values of the People,” Letter from the President, 12 March 2004 at , viewed 26 April 2005. Mbeki, “Human Rights, Black Aspirations and White Fears.” Adopted five years before the un’s Declaration of Human Rights, the lesser-known Africans’s Claims was a response to the Atlantic Charter, which announced a new world order emerging from the Second World War. This document contained a bill of rights asserting political as well as social and economic rights. Mbeki, “Human Rights, Black Aspirations and White Fears.” Clause 9 states: “To promote the achievement of equality, legislative and other measures to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination, may be taken.” Mbeki, “Human Rights, Black Aspirations and White Fears.”

23144_GB.book Page 260 Monday, February 9, 2009 11:46 AM

260

Stephanus Du Toit

35 Thabo Mbeki, “We Will Resist the Upside-Down View of Africa,’ anc Today 3/49, 12 December 2003, available at , viewed 5 May 2005. 36 Ibid. 37 Peter Fabricius, “Tutu Slams sa Stance on Zimbabwe,” Pretoria News, 16 December 2003, available at , viewed 5 May 2005. 38 Hansard, 5 February to 26 March 1999, columns 47–9. 39 Alex Boraine, A Country Unmasked: Inside South Africa’s Truth and Reconciliation Commission (Oxford: Oxford University Press, 2000), 321. 40 Truth and Reconciliation Commission of South Africa Report, vol. 1 (Capetown: juta and Co., 1998), 67–9. 41 The level of inequality is confirmed by the Gini coefficient. A Gini coefficient of one indicates perfect income inequality, while a Gini coefficient of zero indicates perfect equality. The South Africa Human Development Report 2003 notes that in 1995 the Gini coefficient for South Africa was 0.596, rising to 0.635 in 2002. See , viewed 10 May 2005. 42 While blacks occupy an increasing share of management positions and are most likely to be promoted, on average they are also the most likely to lose their jobs. Among skilled professionals, African women have lost significant ground since 2000 (see Brown and Fölscher, Taking Power in the Economy, 2). In addition, only 10 percent of the top managers in the country are black, while 51 percent are white males. Currently, 90.99 percent of engineers in South Africa are white and 4.77 percent are black. Despite positive economic performance, more South Africans have sunk into poverty between 1996 and 2001, unambiguously increasing socio-economic inequality in South Africa. This trend, Brown and Fölscher claim, needs to be balanced against massive increases in access to services by the poor, particularly the poorest of the poor – although, as data show, lack of income often prevents people from taking full advantage of improved access (see Brown and Fölscher, Taking Power in the Economy, 72). 43 tac was launched on 10 December 1998, International Human Rights Day. Its main objective is to campaign for greater access to hiv treatment for all South Africans by raising public awareness and understanding about issues surrounding the availability, affordability, and use of treatments. 44 The lpm is a national movement of landless people in South Africa formed on 24 July 2001, following a meeting between emerging regional and provincial landless people’s organizations.

23144_GB.book Page 261 Monday, February 9, 2009 11:46 AM

Human Rights and the Politics of Reconciliation

261

45 Zackie Achmat, “Remarks to the aids in Context International Conference on hiv/aids.” University of the Witwatersrand, 7 April 2001. 46 The Land Access Movement of South Africa is a community-based organization made up of rural people in the former Transvaal who were dispossessed of their land by apartheid, who are landless, and who do not have any land rights (i.e., farm workers, labour tenants, etc.). Therefore, the movement’s primary objective is to assist these people in their efforts to return to their land. It also attempts to gain access to and secure land rights for those who were disadvantaged through the land reform process. For further information see , viewed 10 May 2005. 47 The Landless People’s Charter was adopted by more than three thousand landless delegates from communities across South Africa at a “landless people’s assembly” held in Durban on 30 August 2001. Further amendments were made following the meeting of landless rural women in Kimberley in October 2001. Available at , viewed 10 May 2005. 48 “Human Rights Day Celebrations a Mirage for the Landless,” 18 March 2003, available at , viewed 10 May 2005. 49 Zackie Achmat, “Notes for a Work in Progress: Youth and the Challenges of Freedom – Celebrating the Memory of Ashley Kriel,’ speech delivered at the Institute for Justice and Reconciliation, Ashley Kriel Memorial Lecture, University of Western Cape, 12 August 2004, available at , viewed 10 May 2005.

select bibliography Anderson, Ken, and Richard Anderson. “Limitations of the Liberal-Legal Model of International Human Rights: Six Lessons from El Salvador.” Telos 64 (Summer 1985): 91–104. Berman, Russell, A. “Rights and Writing in South Africa.” Telos 75 (Spring 1988): 161–72. Cranston, Maurice. “Human Rights, Real and Supposed.” In Political Theory and the Rights of Man, ed. D.D. Raphael. London: MacMillan, 1964. Desai, Ashwin. “We Are the Poors.” In Community Struggles in PostApartheid South Africa. New York: Monthly Review Press, 2002. Du Toit, André. “The Moral Foundations of the South African trc: Truth as Acknowledgment and Justice as Recognition.” In Truth v. Justice:

23144_GB.book Page 262 Monday, February 9, 2009 11:46 AM

262

Stephanus Du Toit

The Morality of Truth Commissions, ed. Robert I. Rotberg and Dennis Thompson, pp. 122–41. Princeton: Princeton University Press, 2000. – “Understanding Rights Discourses and Ideological Conflicts in South Africa.” In Essays on Law and Social Practise in South Africa, ed. H. Corder, 237–65. Cape Town: Juta, 1988. Dworkin, Ronald. Taking Rights Seriously. Harvard: Harvard University Press, 1978. Holkeboer, Mieke. “Rethinking the Universal in Universal Human Rights: A Hermeneutical Approach.” PhD diss., University of Chicago, 2003. Ignatieff, Michael. Human Rights as Politics and Idolatry. Princeton: Princeton University Press, 2001. Lederach, John Paul. Preparing for Peace: Conflict Transformation across Cultures. New York: Syracuse University Press, 1995. Mutua, Makau. Human Rights: A Political and Cultural Critique. Philadelphia: University of Pennsylvania Press, 2002. Rigby, Andrew. Justice and Reconciliation: After the Violence. London: Boulder, 2001. Shriver, Donald W. An Ethic for Enemies: Forgiveness in Politics. Oxford: Oxford University Press, 1995. Sparks, Alistair. Beyond the Miracle: Inside the New South Africa. Johannesburg: Jonathan Ball Publishers, 2003. Villa-Vicencio, Charles. “Reconciliation as Political Necessity.” Unpublished, 2005. – “Whither South Africa? Constitutionalism and Law-making.” Emory Law Journal 40 (Winter 1991): 141–57. Villa-Vicencio, Charles, and Erik Doxtader, eds. Pieces of the Puzzle: Keywords on Reconciliation and Transitional Justice. Cape Town: Institute for Justice and Reconciliation, 2004. Villa-Vicencio, Charles, and Wilhelm Verwoerd. Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa. Cape Town: University of Cape Town Press, 2000. Waldron, Jeremy, ed. “Nonsense upon Stilts”: Bentham, Burke and Marx on the Rights of Man. New York: Methuen and Co., 1987. Weber, Max. The Protestant Ethic and the Spirit of Capitalism. New York: Charles Scribner’s Sons, 1958. Wilson, Richard A. The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State. Cambridge: Cambridge University Press, 2001.

23144_GB.book Page 263 Monday, February 9, 2009 11:46 AM

12 Interethnic Reconciliation in Lebanon After the Civil War SAMAR EL - MASRI

Lebanon has always been a unique country in the Middle East, not only because its geographical location allowed it to become the gate between the West and the East but also because of its ethnic mosaic. Its ethnic composition has varied from one period to another, but today it is estimated that 70 percent of the Lebanese are Muslims, including Shiites, Sunnis, Druze, Isma’ilites, Alawites, and Nusayri and that 30 percent are Christians, including Maronites, Protestants, Greek Orthodox, Greek Catholic, Armenian Catholic, and Armenian Orthodox among others.1 What made Lebanon politically unique, after the country’s declaration of independence in 1943, if not before, was the ability of its inhabitants to coexist in accordance with a power-sharing arrangement (the National Pact) that divided the offices of government among the leaders of the major ethnic groups. This elite arrangement, however, concealed boiling ethnic tensions beneath the surface, which found their way out explosively in 1975, when a civil war broke out, only to end fourteen years later with yet another power-sharing agreement, the Ta’if Accord of 1989. The aim of this chapter is to investigate whether the Tai’if Accord, and the post-1989 governments, were successful in easing interethnic tension and in reinforcing reconciliation. The key question is whether the relative stability of Lebanon since the Ta’if Accord is genuine and whether a future civil war may very well be around the corner.

r e c o n c i l i at i o n i n t h e o ry In recent decades, ethnic conflicts and their resolution have been the subject of extensive theoretical debate due to the mounting number

23144_GB.book Page 264 Monday, February 9, 2009 11:46 AM

264

Samar El-Masri

of civil wars and their intractability. Two approaches to reconciliation stand out. The first may be termed the consociational approach, as theorized in the writing of Arend Lijphart and the many authors influenced by Lijphart.2 In essence, consociationalists believe in the management of ethnic conflict through elite power sharing, based on proportional representation and group autonomy. Their case for the management (rather than the elimination) of ethnic divisions is that such divisions tend to be so long-lasting as to be practically permanent, as is the role of elites in ethnic conflict. Hence, both of these factors must be taken into account in arranging peace settlements. By implication, for any agreement to succeed, the leaders of all the major parties to a conflict should be given something that would make the peace option worthwhile. The second approach to reconciliation may be termed the social transformation approach.3 The frequent failure of consociational peace accords in maintaining stability in deeply divided societies led theorists of this school to reject the consociational model, citing its institutional rigidity and its reinforcement of ethnic divisions, and to proffer an alternative. What is needed, they argue, is not an “institutional fix” – no matter of what kind4 – but a “bottom up” approach that would not merely manage the conflict but would instead resolve it by facilitating the growth of a strong interethnic civil society free from elite manipulation. The following section is dedicated to explaining this social transformation approach to reconciliation in further detail. “Civil society” – defined in this study as the area between the state and the society, where individuals come together voluntarily to compose various kinds of independent organizations, which can range widely from social and economic to ideological and political – is not a new concept.5 Alexis de Tocqueville hailed civil society as a basic cornerstone of democracy because it controls and restrains state power and stands as the major guarantee against the “tyranny of the majority” and the schemes of the rulers.6 In the following century, liberals like Robert Putnam and Ernest Gellner built on this idea, arguing that civil society not only reinforces democracy but also establishes sustainable peace. According to Putnam, civil society has major “internal” effects on its members since it creates habits of cooperation, solidarity, public spiritedness, and trust – which he calls “social capital” – that are necessary for maintaining a stable democracy.7 Gellner explains a similar idea from a different

23144_GB.book Page 265 Monday, February 9, 2009 11:46 AM

Interethnic Reconciliation in Lebanon

265

perspective, when he emphasizes the interconnectedness of civil society and stable democracy by starting his analysis with what he calls “the modular man” – the basic bloc of any civil society – who can freely join and leave any association he likes, without being bound by the state or by his ethnic identity. He explains that it is this specific condition that would eventually reinforce stability as it creates overlapping ties between members of society, who would no longer see themselves as members of a certain ethnic group but, rather, as individuals who act according to their own self-interest within a unified country.8 But many disagree with the classical liberals not only because they obviously did not see civil societies except in Western countries but also because they missed the fact that the existence of civil societies per se may not always lead to stability.9 It all depends on the kind of civil societies at hand. Ashutosh Varshney, for one, uses his fieldwork in the two Indian cities of Alligarh and Calicut to demonstrate that the different types of civil societies in these cities directly influenced the character of the Hindu-Muslim relationship in them, leading to conflict in Alligarh but not in Calicut. The reason, he explains, is the presence of an interethnic civil society in the latter, which created “a considerable reservoir of social trust” among the groups, making it easier for criminals to be brought to justice, for the media to investigate and neutralize demagogic rumours, and, above all, for the politicians to maintain peace since the risk of engaging in political fragmentation remained too high.10 Although Varshney’s analysis makes sense, one cannot but wonder about the numerous widespread cases of multiethnic countries that do not have such civil societies: Are they doomed to destruction? Are they destined to always remain hostage to their elites and their ethnic groups? The social transformationists do not think so as they believe in the artificiality – in contrast to the innateness – of ethnic identities.11 In their view, civil society organizations (csos)12 should be understood in the context of the general society, from which they extract their members. Thus, the beliefs and behaviours that are characteristic of a society at large will also be reflected in the character of its civil society. So, if the individuals are ethnically driven, intolerant, and confrontational, this, in turn, will lead to an exclusive intra-ethnic civil society. But, according to the social transformationists, these characteristics can be changed and this process of socialization based on selective information and the creation of prejudiced perceptions

23144_GB.book Page 266 Monday, February 9, 2009 11:46 AM

266

Samar El-Masri

can be reversed through the establishment of reconciliation workshops based on open and sincere interethnic dialogue,13 the promotion of a unified history book that would encourage national rather than ethnic sentiments, and the establishment of truth commissions, among other techniques. The extent of this above process of reversal and social transformation, which would eventually lead to sustainable peace, is not something that the social transformationists agree on. Some, like Rupert Taylor, advocate a total break from the past and the construction of a new national identity.14 Others, like the Walachs, talk about transforming a portion of ethnic identity, perhaps by expanding it to include a national identity as well.15 In all cases, the supporters of the social transformation approach want to see a change in the character of the civil society itself because leaving things as they are will only increase internal pressure that, sooner or later, will explode. The social transformation approach gives a logical explanation of how long-term peace can be maintained. Indeed, no multiethnic society is immune from would-be civil wars as long as its social groups hate, doubt, and dehumanize one another. Something should be done to treat these social ills and to nurture reconciliation and a spirit of overarching national identity in the hearts of the people. However, I do not necessarily believe that a total social transformation that aims at eradicating the ethnic identity of the population is either feasible or necessary in order to reach the above goals. What is needed, instead, is a show of respect for the ethnic uniqueness of the groups in question16 and, at the same time, a readiness to implant tolerance and understanding and to strengthen the national identity. However, the basic weakness of the social transformation approach to reconciliation remains its inability to explain how such a process starts and how it can succeed if a civil war is still ongoing or if major ethnic elites have not given their blessing to a new order. Despite the establishment of numerous workshops on debate and reconciliation for the youth of the Palestinians and the Israelis or the Turkish Cypriots and the Greek Cypriots, for example, they have not been successful in bringing these conflicts and impasses to an end. I believe that the power sharing and the social transformation approaches to reconciliation – despite their apparent contradiction – can be made harmonious and should be applied together in order to achieve long-term peace. Elite reconciliation, mostly in accordance

23144_GB.book Page 267 Monday, February 9, 2009 11:46 AM

Interethnic Reconciliation in Lebanon

267

with a power-sharing agreement, remains a necessary first step if such a social transformation process is to begin in the first place, and this process must also be accompanied by postwar institutions that would treat all the major ethnic groups justly. In Lebanon, power sharing, despite its past failure in maintaining stability, was revisited after the civil war because of its appeal – a process that has often been described by the consociationalists. This chapter, however, does not deal with how and why this agreement was formed but, rather, with the ability of the Ta’if agreement and the postwar governments to deal with the social ills that were ignored in the past as well as with the role that Lebanese civil society has played in this equation. Lebanon’s Reconciliation Process After the Civil War Civil society in Lebanon has been relatively “modular,” in that its members have been free to join csos, which, in turn, have been more or less able to maintain their independence from the state. However, the real problem is not the presence or absence of such a civil society but, rather, its very nature and its relation to politics. Lebanese csos are not a modern phenomenon. Their roots can be traced back to the nineteenth century, when they appeared in the form of educational and cultural societies (Jam’iyat).17 They were later encouraged by the 1909 Ottoman legislation, which did not require those who established the csos to offer the authorities anything more than ilm wa khabar (knowledge of their establishment) before the initiation of their activities.18 Such a development continued during the period of French rule (1919–43) because of the individual freedoms and rights provided for by the 1926 Constitution,19 the use of new forms of communications (telegraph, telephone, train, etc.),20 and the formalization of such organizations.21 However, during the pre-independence period, the development of Lebanese civil society was not accompanied, on the social level, by the diffusion of ethnic tension. Distrust and stereotypes took a deep hold of the Lebanese religious communities, fuelled by the religious and the political ethnic elites and the backing of the various European powers,22 leading to civil strife between Mount Lebanon’s Maronites and Druze in the 1830s and the 1850s.23 The horrors of the First World War and the Great Famine of 1915–18 widened the ethnic gap further as the ethnic communities felt

23144_GB.book Page 268 Monday, February 9, 2009 11:46 AM

268

Samar El-Masri

betrayed by their counterparts, who did not help them in their darkest hour.24 This division was translated into different political aspirations, with the Christians opting more than ever for an independent state that would protect them from their Muslim surroundings, and with the Muslims struggling to unite in a Greater Syria. For this reason, the French-designed le Grand Liban represented a step forward to the Lebanese Christians but not to the Lebanese Muslims, who decided not only to boycott the system until the 1930s but also to organize in clubs, interest groups, associations, and parties to counter the Maronite influence and, later, to compete for governmental services and posts.25 In 1943, and for the first time in their history, the Lebanese themselves had a say in their own political destiny when the major ethnic leaders of the Christian and the Muslim communities, specifically Bishara el-Khoury and Riyadh el-Solh, formed the National Pact. The pact was an oral agreement that, among other things, distributed political power proportionally among the ethnic groups in accordance with their demographic composition, thus giving the seat of the presidency to the Maronites, that of the prime minister to the Sunnis, and that of the speaker of the house to the Shiites. However, the agreement remained elite-based and artificial, failing to provide for any mechanism that would instigate and encourage reconciliation on the lower levels of society. In fact, the ethnic divide increased in the decades that followed, despite the economic boom that the country witnessed, because of the unequal distribution of economic rewards found specifically in the trade and tourism business – usually Christian sectors26 – over agriculture and industry, the two sectors that fed the Shiites. This does not mean, however, that the civil society in Lebanon was hampered. On the contrary, the democracy and the freedom that the Lebanese were experiencing,27 as the proliferation of Lebanese press institutions shows, for example, in contrast to their authoritarian neighbours, made the country a perfect spot for political exiles from the Arab world and an ideal stage for debate. As a result, the Lebanese network of civil society organizations was extended to include politically active ideological clubs and student clubs as well.28 But this did not have the effect that the liberals or the social transformationists expected as it did not contribute to stability and elite control but, rather, to more division. For, at a time when the government was not able to deal with the mounting

23144_GB.book Page 269 Monday, February 9, 2009 11:46 AM

Interethnic Reconciliation in Lebanon

269

economic problems or to satisfy the demands of most of the Lebanese – specifically the Shiites – various marches and strikes were organized by student bodies for different purposes: some in the name of Arabism and others in the name of Lebanese independence and sovereignty. In 1975, the country collapsed.29 The civil war had a tremendous effect on Lebanon, not only because of its physical horrors but because of its impact on the psyche of the Lebanese. A field study conducted by Lina Kreidie and Kristen Renwick Monroe on a few Lebanese individuals who actively participated in the war discovered that these fighters did not consider their counterparts from the other group as fellow Lebanese, or even as fellow human beings, but, rather, as animals, “morally corrupt” and unworthy of living.30 But this feeling was not exclusive to fighters. Most of the Lebanese from all ethnic groups shared such stereotypes – although to a lesser extent than the actual fighters. Their doubts and their fears became worse when they had to face the violence committed by the groups within their own enclave as well: for if cousins and brothers could commit such atrocities against each other, imagine what a distant individual and a declared enemy would do in such circumstances. In the words of Samir Khalaf: The routinization of violence, chaos, and fear only compounded the frayed fabrics of the social order. It drew seemingly nonviolent groups into the vortex of bellicose conflict and sowed a legacy of hate and bitterness. It is in this fundamental sense that Lebanon’s pluralism, radicalization of its communities, and consequent collective violence have become pathological and uncivil. Rather than being a source of enrichment, variety, and cultural diversity, the modicum of pluralism the country once enjoyed is now generating large residues of paranoia, hostility, and differential bonding.31 One might think that in this case of “war of all against all,” the development of Lebanon’s civil society would face a deadly blow, but the opposite happened. A large number of csos flourished not to put an end to the conflict but, rather, to reinforce the status quo. The division of Lebanon into a Christian enclave and a Muslim enclave, the breakdown of the Lebanese state, and its eventual inability to provide its citizens with their basic demands, led each militia to encourage the formation of csos that would do that job. The

23144_GB.book Page 270 Monday, February 9, 2009 11:46 AM

270

Samar El-Masri

result was the emergence of a more or less compartmental civil society in Lebanon, with each compartment practising the same tasks but serving different masters.32 This does not mean, however, that all Lebanese csos became intra-ethnic and militia-run. For example, the Confederation Generale des Travailleurs Libanais (cgtl), an umbrella organization comprised of numerous federations of professional syndicates, organized various strikes towards the end of the 1980s not to protect their specific economic interests but, rather, to call for peace and unity.33 However, these efforts were not enough to put a stop to the war or to pressure the leaders to compromise. The civil war ended in 1990 with the signing of the Ta’if Accord,34 and the Lebanese civil society continued on the path of development, growing in number to reach between four thousand to fifteen thousand csos – depending on the criteria used to determine the number35 – and varying from religious charitable welfare institutions and confessional csos to local (specific town), national (e.g., trade unions), and international (e.g., Green Peace) csos.36 But has this proliferation mirrored, finally, such a development in the Lebanese civil society that it would lead to the outcome described by the social transformationists? In December 2003, I conducted fifteen interviews, ten of which were with heads of several apparently interethnic csos in various fields, to study the membership of these organizations, their relation to the state, and the respondent’s own perception of postwar interethnic relations. The objective was not only to examine the “modularity” of the organization in question and its level of independence from the state but also to investigate whether such voluntary activities have contributed to interethnic reconciliation after the war. As table 12.1 demonstrates, on the first set of questions targeting the number and the composition of the members, the majority of the respondents witnessed an increase in the membership of their organization, which they claimed was open to everyone regardless of his/her sect. Only one respondent, who heads one of the federations that constitute the cgtl,37 declared that the number of members dropped sharply after the war, blaming it mainly on emigration, which is claiming tens of thousands of young Lebanese every year.38 Regarding the second set of questions, relating to the csogovernment relationship, the respondents had different views. Each cso has the right to apply to the government for a certain amount

23144_GB.book Page 271 Monday, February 9, 2009 11:46 AM

Interethnic Reconciliation in Lebanon

271

Table 12.1 Responses of heads of CSOs to the three sets of questions Worse than war period

No change from war period

Better than war period

Total

Number of the csos active members

1

–

9

10

Observance of modularity

–

–

10

10

State interference

2

8

–

10

Interethnic relations

8

2

–

10

of money to purchase equipment, such as computers. If they do not get such assistance, this may be because they failed to make an adequate case – or there may be other reasons. But what is important here is to determine whether the government has imposed any political conditions on these organizations in return for its financial assistance. Two of the respondents admitted openly that the state does just that. One, the head of an environmental ngo, claimed that, at one time, the government requested the postponement of the organization’s election because, according to the government, this came at a time of “internal unrest”: but they went through with the election anyway. According to another respondent, this intervention has been fiercer in the cgtl. Unlike the case before the war, the government played a direct and a more active role in the organization “not only by imposing new unions and federations that were ceremonial with no real membership, to affect its elections, but by breaking up big federations into smaller ones for no legitimate reason but to weaken the organization from the inside.”39 In fact, it is no secret that the government did try to increase its control over civil society in the mid-1990s, when it issued Decree 5734, amending the 1909 Ottoman rule on associations to add various preconditions before the establishment of new csos. These preconditions vary from obliging every cso to have a bylaw, a statement indicating from where its funds are coming, an election every two years, and, most important, the provision of personal identification and police papers. That has ultimately allowed the government to give licences to whomever it pleases, withholding from others and even refusing sometimes to accept their applications in the first place. Despite this change in governmental policy,

23144_GB.book Page 272 Monday, February 9, 2009 11:46 AM

272

Samar El-Masri

one cannot ignore the fact that eight of the respondents reported no such interference in their affairs. It appears that the Lebanese csos in general seem to enjoy a considerable level of independence and autonomy. It is only when these organizations start to pose direct problems for the government, like openly and actively objecting to its policies, that the latter intervenes in order to safeguard its policies and to protect its image. But did this interethnic and relatively autonomous civil society play a role in the process of reconciliation? Have this modularity and interethnicity led to stability, as Varshney specifically expected? It appears that many csos are trying to help in the reconciliation process. Two of the heads of the civil society organizations that I interviewed, for example, have joined forces with other cso officers in various parts of Lebanon to encourage national dialogue and interethnic reconciliation. They are doing this, among other ways, by sponsoring common trips for Christian and Muslims students, common dinners for teachers from all sects, and by encouraging students of different schools to interact. This builds on an earlier 1989 initiative, when 240 ngos trained under and collaborated with unicef in the project “Education for Peace” to teach children about peace and to make adults more aware of their behaviour towards other people.40 However, this project was not extended because, as Ali El-Zein, a unicef program officer in Lebanon, explained: “unicef cannot do the job of the government which should have adopted this project itself afterwards. This is in addition to the fear that the unicef’s continuation of the program would jeopardize its neutrality which had allowed it access to all Lebanese areas during the war regardless of who was in control.”41 But these efforts do not seem to make a difference in the overall process. In response to the third set of questions, each one of my respondents agreed that interethnic relations since the war are as bad as they were during the war, if not worse. A recurrent response was: “things are obviously better than during the war, since there is no killing anymore, but everything else remained the same.” This failure on the part of the csos may be because of a lack of continuity, or, as Hassan Hammoud believes, because they have mostly been “sponsored by outside forces like the European Union – and thus not internally generated – or because they were scattered.”43 But, even if these efforts were continuous, and even if no such problems face the work of such csos, success is not guaranteed. Many of the strategies and

23144_GB.book Page 273 Monday, February 9, 2009 11:46 AM

Interethnic Reconciliation in Lebanon

273

the mechanisms that the social transformationists believe in – and which I agree with – to reverse this old trend of interethnic doubt, stereotypes, and fear, are dependent on the policies of the government itself. For how can a shared national identity grow in the hearts of the youth in the absence of a governmentally sponsored unified history book that would abstain from dehumanizing any of the internal groups, while emphasizing the characteristics and events that make the Lebanese proud of their heritage and nationality? And how can one ever hope for sustainable peace if the government practises policies that are viewed by at least one group as unjust and ethnically driven, even when a national dialogue or a social reconciliation process is under way? But was reconciliation systematically promoted in Lebanon after the war? Did the Ta’if Accord give priority to the process of reconciliation and social transformation? And what kind of policy did the postwar governments practise on this front? This is elaborated in the following section. It seems that reconciliation in Lebanon before 1975 was the prerogative of the elites in that, after every internal crisis, the priority went to rebuilding bridges between the ethnic elites through the establishment of a power-sharing arrangement that only specified how power should be distributed among them. As explained earlier, the 1943 National Pact, for example, reconciled the differences between the Lebanese elites without attempting to address the roots of the problem that were at the heart of the Lebanese clash in the first place – namely, interethnic stereotypes and suspicions. The Ta’if Accord tried to avoid the weaknesses of its predecessors by prescribing various treatments for the social ills that the Lebanese faced, starting with the problems directly produced by the war. However, the theory was one thing and the practice was something else. After a civil war, peace and stability cannot be successfully rebuilt in the absence of a reasonably strong government, the weakening of the militias, and the confiscation of their arms. This is exactly what the Ta’if Accord stated. It clearly called for the disbanding of all Lebanese and non-Lebanese militias, and the surrendering of their weapons within a period of six months after the Lebanese Parliament’s ratification of the accord. However, what happened was a “solution” for the militias rather than their dissolution because, in addition to the priority given to them to enrol in and fill some twenty thousand jobs in the army,43 the government gave the militias – except for Hizbollah – the choice to submit their arms to the

23144_GB.book Page 274 Monday, February 9, 2009 11:46 AM

274

Samar El-Masri

Lebanese Army, sell them, or send them back to their original source. Although one might understand the reasoning behind embracing former militiamen in order to prevent them from returning to fighting, this strategy does have dangerous implications for the social reconciliation process as it enhances the fears of the various ethnic groups. Many people, including the minister of the interior,44 argued that most militias kept a portion of their arms with the intention of using them in future conflicts. Hizbollah’s effective resistance against the 2006 Israeli attack on Lebanon strengthened its case temporarily, but, in the aftermath, when faced with a devastating toll of death and destruction, there was much blame directed at Hizbollah for provoking the attack. Since then, a growing number of leaders have called for the disarmament of Hizbollah, or at least for some kind of coordination, cooperation, and even cooptation of Hizbollah into the Lebanese state. However, the questions that many Lebanese ask themselves today are: How and why would Hizbollah give up its military strength voluntarily? And what would happen if it refused to do so upon the government’s request? A hint was given to them when, in May 2008, Hizbollah staged an uprising in objection to the government’s decisions to investigate Hizbollah’s phone network and to transfer an airport security chief with an alleged link to Hizbollah from his present position. The result was not only the killing and injuring of many civilians but also a sharper divide between the Lebanese, specifically between the Shiites – who mostly back Hizbollah – and the Sunnis. In addition to the problem of the militias, the 1975–89 civil war was responsible for the displacement of hundreds of thousands of people who were previously living in heterogeneous areas. In fact, before the war, it was reported that 44 percent of the 1,330 villages and townships of Lebanon included inhabitants of more than one sect.45 But the civil war changed all that when it led to the homogenization of such areas, adding not only to the financial problems from which the victims of this trend suffered but also to their psychological problems. As many sociologists and psychologists argue, displacement and living in mono-ethnic neighbourhoods increase doubts and fear several times over. This is the case not only because the individual in question will tend to blame the entire opposing ethnic group for his/ her misfortune but also because lack of contact will most probably lead him/her to lose the ability to sympathize with and tolerate others.46 This is especially the case because the common areas, such as

23144_GB.book Page 275 Monday, February 9, 2009 11:46 AM

Interethnic Reconciliation in Lebanon

275

downtown Beirut, which was once the centre of commercial and social life and a meeting point for people from all ethnicities and walks of life, was destroyed and divided, separating Muslim West Beirut from Christian East Beirut for many years. After the war, consecutive Lebanese governments gave the issues of the displaced and reconstruction special attention. In 1992, the Ministry of the Displaced was established to help speed up the return of the displaced by giving certain amounts of money, for example, to the people who left their houses so that they might be able to reconstruct them. But whether for political or economic reasons, the “program of return” did not go as fast as had been hoped. According to a 1997 United Nations Development Programme report, about 450,000 persons were displaced as of 1995,47 and 300,000 remain displaced today, especially from the south and Mount Lebanon. As for the process of reconstruction, today downtown Beirut is mostly rebuilt; it is filled with coffee shops and restaurants, and its streets are packed with people from all sects and from all over the country and the world. This is a positive development, and it points to the importance of re-establishing the common public spaces that help to foster informal interethnic contact. However, this is not enough to reach the social transformation that the transformationists hope for – not even when all the common areas (not only Beirut) are rebuilt, not even if all the houses in the old heterogeneous areas are reconstructed, and not even if every single person who was displaced during the war is given some kind of compensation for his/her losses. The doubts that the ethnic groups have about each other will continue to nourish their fears. For this reason, many, for example, will continue to ask themselves about the utility of moving back to heterogeneous neighbourhoods that are filled with individuals from other ethnic groups who might at some time in the future kill their families and destroy their property. And many others, even if they do not harbour such fears, will remain more loyal to their ethnic group than to their country. The framers of the Ta’if Accord acknowledged the seriousness of the problem, as is evident in the accord’s call for “political deconfessionalism” and the reinforcement of the “Lebanese identity” versus ethnic belonging. On this front, postwar Lebanese governments have done little. In 1992, the government did issue new identity cards that omitted the “religious affiliation” of the holder. But this remained a trivial step, to say the least, because in violently divided

23144_GB.book Page 276 Monday, February 9, 2009 11:46 AM

276

Samar El-Masri

societies – like Lebanon or Northern Ireland, for example – not only can any citizen guess the affiliation of another just by hearing his/her name but also distrust and stereotypes are so strong that nothing short of a political socialization movement (among other things) will do to achieve the goal of intercommunal reconciliation. The Ta’if Accord also called for the revision and the development of the school “curricula in a manner which strengthens national cohesiveness and fusion and spiritual and cultural openness, and to unify the textbook in the history and civil education courses.” This was proposed at a time when religious studies and history lessons were given to students in a manner that enriched rather than weakened religious belonging. From 1943, history and religious studies were taught in public schools by teachers appointed by religious authorities to give lessons to students who were, in turn, segregated in separate classrooms according to their sect. After the civil war, the government decided to abolish this practice – only to reinstate it in 1999 under pressure from the religious authorities.48 In the meantime, the government appointed a committee of experts to revise the school curriculum in all of its fields. Unfortunately, the one area that needed the most revision because of its direct influence on the process of political socialization and interethnic reconciliation – that is, the issuance of new unified history textbooks – took a decade to come to pass. And when these textbooks were finally published, a fierce debate erupted over the content of some of them. And when this happened, the government decided to delete the dispute passages from the textbooks rather than to resolve the issue being contended.49 The post-Ta’if administration of justice has also been problematic. Only a few years after the end of the civil war, and despite the passing of an amnesty law that pardoned all “political” crimes that were committed prior to its enactment in 1991, one of the Maronite militia leaders was put on trial. In 1994, Samir Geagea, the leader of the Lebanese Forces, one of the major Christian parties, was accused of planting a bomb in a Maronite Church in 1994, killing ten people.50 This might not have been a problem if further charges had not been filed against him for atrocities allegedly committed before 1991. Geagea, who was cleared of the bombing charges, was sentenced to multiple life sentences for the assassination of Prime Minister Rashid Karami in 1987, the murder of a Lebanese Forces official in 1989, and the assassination of Dany Chamoun, the son of

23144_GB.book Page 277 Monday, February 9, 2009 11:46 AM

Interethnic Reconciliation in Lebanon

277

former president Kamil Chamoun, and his family in 1990.51 In 2005, Geagea was pardoned by the Lebanese parliament, after serving eleven years in solitary confinement. The faith of the Christians in a fair “national” government diminished greatly over the following years because of what they regarded as the continuing application of selective justice52 and preferential policies that specifically victimize them. In 2002, for example, the government filed charges against the two Christian-led television outlets, namely Murr Television and the Lebanese Broadcasting Corporation International, accusing them of damaging the country's ties with Syria and inciting sectarian strife. Both companies claimed that similar coverage was provided by other stations, but the government initiated no similar action against them.53 Perhaps one of the most frustrating governmental policies for the Christians and one of the most serious violations of the Ta’if Accord – in their opinion – has been the inability of consecutive postwar governments to bring about a complete Syrian withdrawal from Lebanon. The Ta’if Accord, which spoke eloquently about the special relationship with Syria on all fronts, promised Syrian military withdrawal from Lebanon within two years after the ratification of the accord, under conditions specified by the Syrian and the Lebanese governments. More than a decade later, the Lebanese Parliament suspended this provision because of alleged “necessary conditions,” which required the Syrian troops to remain, and accepted a series of bilateral treaties in all fields.54 These treaties, which most Muslims consider crucial for stability and the rebuilding process, have been publicly criticized by the Christians, including the Maronite Patriarch himself, who complained that “a treaty between unequal partners means that one will dominate the other.”55 In effect, these agreements legalize Lebanese dependence on Syria, which, according to most Christians, treats Lebanon as an extension of its territory, interfering freely in decisions of the Lebanese government, which is itself made up of mainly pro-Syrian officials. The Syrian intervention in Lebanese affairs for more than thirty years56 – and, more specifically, its continuation into the post-Ta’if era – extended the circle of objectors to include more than just the Christians. Towards the end of 2004, an alliance between most of the Christian groups and Walid Jumblat, who had previously been considered a close Syrian ally, changed his strategy, objecting to the extension of pro-Syrian President Lahoud’s term and openly criticizing

23144_GB.book Page 278 Monday, February 9, 2009 11:46 AM

278

Samar El-Masri

Syria and its “puppet” government in Beirut.57 This Christian-Druze alliance was further extended when the coalition that had been backing former prime minister Hariri joined in after Hariri’s assassination on 14 February 2005. In fact, the car bomb that killed Hariri did much more than that. For the first time in decades, Christians and Muslims alike stood hand in hand to mourn his death, each praying in his or her own way over his grave in downtown Beirut. What was more impressive was that his death created a gateway for csos such as student clubs to affect the political scene directly through the organization of strikes and demonstrations all over the country. However, and although this civil society activity took place under the Lebanese flag and in the name of national unity, it does not seem to have contributed to peace and stability or to the reinforcement of a unifying Lebanese nationalism. A few weeks after Hariri’s assassination, Hizbollah and its pro-Syrian allies, including many csos, started a series of demonstrations to show the international community that the continuous demonstrations held in Sahat al-Horiya (Freedom Square) near Hariri’s grave did not represent all of Lebanon. Specifically, they rejected the opposition’s open criticism of Syria and the Lebanese government and its accusation that Syria and its Lebanese allies ordered or facilitated Hariri’s assassination. Today, the pro- and antiSyrian movements have become the leading conflicting groups in Lebanon, with Hizbollah and its pro-Syrian allies joining forces as the March 8th group (named after the date of their demonstration) and the pro-Hariri, anti-Syrian leaders joining forces as the March 14th group (named after the date of their counter-demonstration). Simply put, in this sensitive period, csos did have an important role to play in Lebanon’s political life. However, they did not act as a separate, independent entity that served to check and control the elites of the political system. On the contrary, their activities were very much manipulated, directed, and backed by the elites themselves, each for the sake of promoting its own agenda and safeguarding its own position in power. True, one cannot deny the fact that Hariri’s assassination led to major changes in the country, including the withdrawal of the Syrian forces from Lebanon in May 2005, the resignation of the pro-Syrian government, the return from exile of major Christian leaders (including Aoun and Gemayel), and Geagea’s release from prison. This is in addition to the massive victory of the March 14th coalition in 2005 parliamentary elections and the formation of a coalition government

23144_GB.book Page 279 Monday, February 9, 2009 11:46 AM

Interethnic Reconciliation in Lebanon

279

made up of all the major parties. But again, these changes did not have any major positive influence on the social level or on the process of interethnic reconciliation. Soon after the formation of the coalition, the Shiite ministers resigned from the government and Hizbollah and its allies staged a sit-in in downtown Beirut to protest the government decision to endorse an international tribunal to investigate the Hariri assassination. This led to near total political paralysis, with a government whose constitutionality was questioned by a considerable part of the population since a major ethnic group – the Shiites – were not represented, a parliament so deadlocked that it failed even to convene, and a president whose term of office had expired. This political paralysis was accompanied by intense and aggressive propaganda campaigns that were run by the opposing groups and that translated into widespread interethnic skirmishes, leading to a Hizbollah-staged armed uprising in May 2008. However, this uprising, which witnessed various bloody clashes in Beirut and northern Lebanon between the Sunnis and the Shiites (and, in the mountains, between the Druze and the Shiites) came as no surprise. As this chapter has shown, the process of interethnic reconciliation in Lebanon after the civil war has been barely progressing, to say the least. The consecutive postwar Lebanese governments have not seriously addressed the social ills that the civil war left behind nor have they implemented many of the Ta’if Accord provisions in this area. What is worse, these governments have failed either to gain the confidence of the Lebanese or to build trust in a national unified state that would protect them from harm, bring them justice, and treat them as Lebanese citizens rather than as members of this or that sect. For these reasons, and contrary to the beliefs of the social transformationists and the classic civil-society liberals, the presence of an interethnic and more-or-less independent civil society did not – and is not likely to – prevent civil wars. Even when many csos talked and contributed directly to the process of interethnic reconciliation, there was no major change in the overall social or political scenes. Heterogeneity and modularity alone do not guarantee tolerance, especially when the member in question goes back to the same old ethnically charged atmosphere at the end of the day. Today, the events that occurred in Lebanon in the past few years have taken the country back to square one in the process of interethnic reconciliation. Despite the fact that both groups keep insisting that their fight is not religious but political (as both coalitions

23144_GB.book Page 280 Monday, February 9, 2009 11:46 AM

280

Samar El-Masri

involve leaders from all ethnic groups),58 the aggressive, intolerant, and heavily divisive propaganda that each group is spreading against the other has resulted in a boiling social atmosphere. The recent bloody clashes seen in Lebanon and the brutality and the gruesomeness of the fighting in many parts of the country showed more than ever the extent of the problem in Lebanon and the urgent necessity for dialogue not only between leaders but also between Lebanese citizens. After all, it is only when a tolerant society materializes that we can talk about a civil society, with the positive effects that the old liberals, like Tocqueville, stressed and hoped to see.

notes Samar El-Masri is an assistant professor at Prince Sultan University in Riyadh, Saudi Arabia, and is also a research fellow of the Nationalism and Ethnic Conflict Research Group at the University of Western Ontario, London, Canada. 1 The Lebanese demographic makeup changed dramatically throughout the years, for while the Maronite Christians composed the majority of the Lebanese in 1932, their number dropped soon afterwards. Although most studies agree that the Shiites today make up the largest of the ethnic groups, there has been no official census to ascertain their number. For a current estimate of the percentage of each major group, see “Lebanon,” The cia Factbook, 2002 available at , viewed 2002. 2 Arend Lijphart, “Consociation: The Model and Its Application in Divided Societies,” in Political Cooperation in Divided Societies, ed. Desmond Rea, 166–85 (Dublin: Gill and Macmillan, 1982); Arend Lijphart, Power-Sharing in South Africa (Berkeley: Institute of International Studies University of California, 1985), 6; Arend Lijphart, Democracy in Plural Societies (New Haven and London: Yale University Press, 1977), 25–47; Eric A. Nordlinger, Conflict Regulation in Divided Societies (Cambridge, ma: Center for International Affairs, Harvard University, 1972), 23. See also, Brendan O’Leary, “Debating Consociational Politics: Normative and Explanatory Arguments,” in From Power Sharing to Democracy: Post-Conflict Institutions in Ethnically Divided Societies, ed. Sid Noel, 3–43 (Montreal and Kingston, McGill-Queen’s University Press, 2005). 3 Although the term “social transformation” (or even of “transformation”) is not clearly defined in the literature on ethnic conflict, there are certain

23144_GB.book Page 281 Monday, February 9, 2009 11:46 AM

Interethnic Reconciliation in Lebanon

4

5

6 7

8 9

10

281

concepts that can be taken as typical of the approach. See Rupert Taylor, “Northern Ireland: Consociation or Social Transformation?” in Northern Ireland and the Divided World, ed. John McGarry (Oxford, uk: Oxford University Press, 2001), 47 Supporters of power sharing are not unanimous on the kind of institutions they prescribe for divided societies. Some recommend institutions that are semi- or ethnically blind, emphasizing electoral laws to reinforce interethnic reconciliation. Others take ethnic division as a given and call for powersharing institutions that mirror ethnic diversity. For a discussion of integrative versus consociational approaches to power sharing, see Timothy Sisk, Power Sharing and International Mediation in Ethnic Conflicts (Washington, dc: United States Institute of Peace, 1996), 27–45. The term “civil society” is variously defined. The above definition draws on definitions contained in Antony Black, “Concepts of Civil Society in Pre-Modern Europe,” in Civil Society: History and Possibilities, ed. Sudipta Kaviraj and Sunil Khilnani (New York: Cambridge University Press, 2001), 33; Goran Ahrne, “Civil Society and Uncivil Organizations,” in Real Civil Societies: Dilemmas of Institutionalization, ed. Jeffrey C. Alexander, 84–91 (Thousand Oaks, ca: Sage Publications, 1998), 84–91. Alexis de Tocqueville, Democracy in America, vol. 1 (London: Colonial Press, 1900), 193–4. Robert Putnam, Robert Leonardi, and Raffaella Y. Nanetti, Making Democracy Work: Civic Traditions in Modern Italy (Princeton, nj: Princeton University Press, 1993), 89–90. Ernest Gellner, Conditions of Liberty: Civil Society and Its Rivals (Toronto: Penguin Books of Canada, 1994), 100. For more information, see Thomas Gold, “Basis for Civil Society in Reform China,” in Reconstructing Twentieth-Century China: State Control, Civil Society, and National Identity, ed. Kjeld Erik Brodsgaard and David Strand (Oxford and New York: Clarendon Press, 1998), 165. Sheri Berman, “Civil Society and Political Institutionalization,” in Beyond Tocqueville: Civil Society and the Social Capital Debate in Comparative Perspective, ed. Bob Edwards, Michael W. Foley, and Mario Diani (Hanover, nh: University Press of New England, Tufts University, 2001), 37. The Indian cases are not the only proof in this context. Timothy Longman uses the case of Rwanda to reach a similar conclusion. He explains that the ethnic violence that took place between the Hutus and the Tutsis during the 1990s had roots in the very structure of the civil society, which remained intolerant, weak, and intra-ethnic, prompting the elites to appeal to the people’s regional and ethnic identities, and allowing political crimes to go

23144_GB.book Page 282 Monday, February 9, 2009 11:46 AM

282

11

12

13

14 15

16

17

18 19

20

Samar El-Masri

unpunished. See Timothy Longman, “State, Civil Society, and Genocide in Rwanda,” in State, Conflict, and Democracy in Africa, ed. Richard Joseph, 345–9 (Boulder, co: L. Rienner, 1999). Carmen Dumitriu-Seuleanu, “The Media Social Constructions in Interethnic Communication in Romania,” in Ethnic Conflicts and Civil Society, ed. Andreas Klinke, Ortwin Renn, and Jean-Paul Lehners (Aldershot, uk: Ashgate Publishing Ltd., 1997), 198; Frank Wright, “Asymmetry in CrossCommunity Meetings,” in New Perspectives on the Northern Ireland Conflict, ed. Adrian Guelke (Aldershot: Avebury, 1994), 144. Examples of csos range from trade unions and environmental groups to women’s social and political clubs. The only criterion is that these groups be independent from the state. When these and similar efforts are exerted by outside actors like ngos or un agencies, then they become part of what has been increasingly called “Track II Diplomacy.” Taylor, “Northern Ireland,” 36–52. John Wallach and Michael Wallach, The Enemy Has a Face: The Seeds of Peace Experience (Washington, dc: United States Institute of Peace, 2000), 110–12. After all, many of these ethnic groups have fought intense civil wars to defend their existence and their special ethnic characteristics. It is very likely that they would approach any process that seeks to transform their ethnic identity with doubt, to say the least. This happened mostly as a reaction to the influx of the religious missionaries who were active in establishing schools across the country and the fear of the Muslims, specifically, of the effects of such a development on their culture. See Elizabeth Thompson, Colonial Citizens: Republican Rights, Paternal Privilege, and Gender in French Syria and Lebanon (New York: Columbia University Press, 2000), 91; Jon Bennett, “Lebanon: The Lebanese ngo Forum and the Reconstruction of Civil Society 1989–93,” in Meeting Needs: ngo Coordination in Practice, ed. Jon Bennett (London: Earthscan Publications Limited, 1995), 122. The Ottomans were interested in criminalizing secret societies only. See Thompson, Colonial Citizens, 91. The French announced the establishment of “le Grand Liban” in 1920, giving Lebanon its present borders, and then designed its Constitution in 1926. The Constitution provided for the individual rights and freedoms that are necessary to establish such organizations in the first place. Such new means made it easier for cso members to communicate and reach a bigger audience, and, by the 1940s, more than six hundred organizations were registered throughout Lebanon. See Thompson, Colonial Citizens, 100.

23144_GB.book Page 283 Monday, February 9, 2009 11:46 AM

Interethnic Reconciliation in Lebanon

283

21 The French legislation that required csos to have a statement of goals, a list of members, and records of fees paid helped to transform them from family-like gatherings into more formal ones. Of course, industrialization played a role in that as well when workers became more aware of their rights and decided to form unions in order to achieve their common goals. See Thompson, Colonial Citizens, 101. 22 The ethnic composition of Lebanon offered the Europeans a perfect opportunity to indirectly interfere in Turkish affairs by allowing each nation to back a separate ethnic group (e.g., the French backed the Maronites, the British the Druze, etc.). 23 Up until the First World War, present Lebanon was divided into various districts, with Mount Lebanon given some kind of autonomy guaranteed by European powers, while the rest of the territory was under the direct control of the Ottomans. Mount Lebanon was mostly composed of Maronites and Druze. 24 Thompson, Colonial Citizens, 15. 25 Ibid., 55. 26 Theodore Hanf, Coexistence in Wartime Lebanon, (London: The Center of Lebanese Studies in association with I.B. Tauris and co. Ltd., 1993), 98. 27 Salibi, “Lebanon under Fuad Chehab: 1958–1964,” Middle East Studies 2, 3 (1966): 214–15. 28 Bennett, “Lebanon,” 123; Hanf, Coexistence in Wartime Lebanon, 206–7. 29 Of course, like any civil war, the Lebanese Civil War has various internal and external reasons; this chapter is only concerned with social ones. 30 Lina Kreidie and Kristen Renwick Monroe, “The Psychological Dimension of Ethnic Conflict: How Identity Constrained Choice and Worked to Turn Ordinary People into Perpetrators of Ethnic Violence during the Lebanese Civil War,” ucla Centre, 2001, available at , viewed April 2004. 31 Khalaf, Civil and Uncivil Violence in Lebanon, 233. 32 Marwan Kraidy, “Television and Civic Discourse in Postwar Lebanon,” In Civic Discourse and Digital Age Communications in the Middle East, ed. Lep A. Gher and Hussein Y Amin (Stamford, ct: Ablex Publishing Corporation, 2000), 7. 33 Hanf, Coexistence in Wartime Lebanon, 640. 34 The Ta’if Accord reaffirmed the old confessional distribution of power, but it transferred the old privileges of the president (who was a representative of Lebanese unity and a mediator between its groups) to the Council of Ministers led by the Sunni prime minister, while at the same time extending the term of the Shiite Speaker of the House from two years to four, giving him more independence and elevating him to the position of a real partner

23144_GB.book Page 284 Monday, February 9, 2009 11:46 AM

284

35

36 37

38

39

40 41 42

43 44

Samar El-Masri

in the political process. In addition, the accord raised the number of parliamentary seats from ninety-nine to 128, changing the ratio of seat distribution from 6:5 in favour of the Christians to 5:5. For more information about the Ta’if Accord, see Document of the Lebanese National Conciliation [Wathiqat al Wifaq al Watani al Lubnani] (Beirut: The Lebanese Parliament, Republic of Lebanon, 1990.) If school clubs are included in the count, for example, the number may even exceed fifteen thousand. See Lamia El-Moubayed Bissat, “The Role Of Civil Society in Rural Community Development: Two Case Studies from Lebanon,” paper submitted in a Joint escwa-World Bank Capacity Building Workshop on Rural Development in the Middle East, Beirut, June 2002. Bennett, “Lebanon,” 123. For more information on the cgtl, see Sami Atallah, “Business Associations and the State: Achievements and Constraints,” Institute of Development Studies, 1998, available at , viewed 2004. According to Salim Nasr, it is estimated that a yearly average of fifty thousand people left in the early postwar period (1991–94) and that tens of thousands continued to emigrate in the second half of the 1990s. See Salim Nasr, “The New Social Map,” Lebanon in Limbo, ed. Theodor Hanf and Nawaf Salam (Baden-Baden, Germany: Nomos Verlagsgesellschaft, 2003), 147. A finding that is confirmed by many studies on the subject, specifically Sami Baroudi, “Business Associations and the Representation of Business Interests in Post-War Lebanon: The Case of the Association of Lebanese Industrialists,” Middle Eastern Studies 36, 3 (2000): 23–51; Sami Baroudi, “Economic Conflict in Postwar Lebanon: State-Labor Relations between 1992 and 1997,” Middle East Journal 52, 4 (1998): 531–50; Atallah, “Business Association and the State.” “War Relief for Children,” unicef, May 2004, available at , viewed May 2004. El Zein explained the reasons in an interview with the author. Hammoud is a professor of sociology at the Lebanese American University, and he was cited, with his permission, in an interview conducted by the author in Beirut, December 2003. Albert Mansour, Counter-Attack on Ta’if, 143. Mr. Suleiman Franjieh, the minister of the interior, announced in one of his speeches that Walid Junblat, for example, still has stocks of arms in his castle in Mokhtara. His announcement was aired on lbci news on 18 February 2005.

23144_GB.book Page 285 Monday, February 9, 2009 11:46 AM

Interethnic Reconciliation in Lebanon

285

45 Nasr, “The New Social Map,” 149. 46 Khalaf, Civil and Uncivil Violence in Lebanon, 60. 47 “Lebanon.” Global idp Project, 2003, available at , viewed 2003. 48 Munir Baashshur, “The Deepening Cleavage in the Educational System,” in Lebanon in Limbo, ed. Theodor Hanf and Nawaf Salam (Baden-Baden, Germany: Nomos Verlagsgesellschaft, 2003), 160. 49 Baashshur, “The Deepening Cleavage in the Educational System,” 166–7. 50 For more details, see Johnson, All Honourable Men, 240. 51 “Samir Geagea,” Lebanese Forces, 2003, available at , viewed 2003. 52 At one of his trials, Geagea himself asked why the government did not touch “those who had killed the Lebanese president Rene Moawad in November 1989, the Lebanese mufti [Sunni archbishop] sheikh Hasan Khalid in May 1989, and the Druze leader Kamal Jumblat in 1977.” See Johnson, All Honourable Men, 240. 53 See “Lebanese tv Station Charged,” bbc, 9 August 2002, available at , viewed 2003. 54 Kail C. Ellis, “Lebanon,” 5–7. 55 Hanf, Coexistence in Wartime Lebanon, 618. 56 Under internal and international pressure, the Syrians finally withdrew from Lebanon in April 2005. 57 This objection became stronger and more confident after the issuance of Security Council Resolution 1559, which asks all “foreign” forces to withdraw from Lebanon, and an assassination attempt on one of Jumblat’s close friends, Marwan Hmedi. 58 The 14th of March group was made up of most Sunni leaders, including Saad Hariri, the son of late prime minister Rafiq Hariri, the influential Druze leader Walid Jumblat, and most Christian leaders; the 8th of March group was made up of the Shiite Hizbollah and Amal, and a few Druze and Christian leaders, including Aoun (who left the 14th of March coalition later on to join in with the other coalition).

23144_GB.book Page 286 Monday, February 9, 2009 11:46 AM

13 Beyond Coexistence: Towards a Working Definition of Reconciliation BRANDON HAMBER GRÁINNE KELLY

introduction1 Reconciliation has multiple meanings, which can vary from context to context. There is also often confusion relating to the application of the term to the relationship between two individuals and to a broader political context of conflict involving groups. At the same time, a detailed yet universal understanding of what reconciliation means is not available. This has prompted the comment that it is “as old as the hills and at the same time in a preinfancy stage.”2 In the last two decades, however, the term has become increasingly used in the political arena. It has moved from the seminary and the academy into public policy. However, in this shift the meaning of reconciliation theoretically and practically has become contested and at times confused. Given the different perspectives of the term “reconciliation” (some of these are outlined below), this chapter tries to develop some conceptual clarity with regard to the term and, in turn, to investigate whether such clarity can have a positive impact on practice. The chapter is based on a study we carried out in Northern Ireland, which focused on how reconciliation is conceptualized and implemented at the political and community levels. We begin by outlining some of the different views on the term “reconciliation.” Thereafter, we present some of the findings of the study as well as the definition developed during it. To conclude, some of the implications for the international debate on reconciliation are extracted from

23144_GB.book Page 287 Monday, February 9, 2009 11:46 AM

Beyond Coexistence

287

our study findings. These focus particularly on what a reconciliation process entails, its dangers, and, specifically, how the concept relates to other processes (such as coexistence).

reconciliation: a contested term In political negotiations, certainly in the glut of “peace processes” since 1990, reconciliation is routinely, if often loosely, used to imply a setting aside of past animosities and the possibility of former enemies working together in the future. It is a commonplace in political rhetoric. Exactly what this means in practice is seldom clear. Broadly, however, it implies “developing a mutual conciliatory accommodation between antagonistic or formerly antagonistic persons or groups,”3 and at the core “is the preparedness of people to anticipate a shared future.”4 In addition, a range of community projects in countries coming out of conflict, such as dialogue initiatives, often set reconciliation as one of their goals. Much of this has emerged through individual and interpersonal processes, from which programs to deal with intergroup conflicts are derived, but this has yet to be fully understood or harnessed to reach predictable outcomes.5 Significantly, these processes aim a bit deeper than mutual adjustment, seeking resolution or transformation of relationships between individuals and groups. That said, as a concept, particularly in the political arena, reconciliation has struggled to shake off its religious connotations. From a Christian perspective, reconciliation is not something that can be earned: “It is seen as a gift from God, which can be accepted but is not deserved. However, reconciliation with God always also involves reconciliation with one’s neighbour. There are a number of steps that take place in the reconciliation process: confession, repentance, restitution, and forgiveness. The focus in traditional Christian religion is very much on the covenant between God and the individual.”6 It is particularly the focus on forgiveness that has caused some practitioners to question the association between politics and religion. This seems to be prompted by the view, whether correct or not, that when reconciliation is closely tied to religion it can become subsumed into a desire for forgiveness or a desire to move on too quickly – undermining, for example, the anger or desire for justice of victims of violence.

23144_GB.book Page 288 Monday, February 9, 2009 11:46 AM

288

Brandon Hamber and Gráinne Kelly

Another objection is that forgiveness in the personal sense does not necessarily require “the involvement or even the knowledge of those who committed the perceived wrong.”7 Many victims of politically motivated violence find this difficult to contemplate. This issue also concerns human rights activists who see truth and justice as critical to any attempts to deal with the past; some argue that reconciliation flows directly from justice. For example, Antonio Cassese, first president of the International Criminal Tribunal for the former Yugoslavia, has written that “when the Court metes out to the perpetrator his just deserts, then the victims’ calls for retribution are met; by dint of dispensation of justice, victims are prepared to be reconciled with their erstwhile tormentors, because they know that the latter have now paid for their crimes; a fully reliable record is established of atrocities so that future generations can remember and be made fully cognizant of what happened.”8 This is not to say that even those coming from a perspective informed by religion might not agree with the need for formal justice or truth as a prerequisite of reconciliation. Reconciliation advocates are quick to point out that when reconciliation is coupled with calls for forgetting or concealing it is spurious.9 Even those who see forgiveness as linked with reconciliation in some way generally argue that what is “required is not to forget but to forgive the past and thus be in a position to move forward together.”10 Those coming primarily from a human rights perspective argue that reconciliation is not a religious concept or a matter of forgiving.11 It is more expansive, about transforming relationships damaged through conflict – a complex and difficult process – and not cheap rhetoric. A further debate in the literature concerns the relative merit of the concept of coexistence. Those who prefer it to reconciliation would argue that this is a more realistic goal in societies in conflict. Those advocating coexistence “seek to establish a baseline for human relations and a climate in which such disagreements might be peacefully discussed and resolved; coexistence is both a means to an end and an end in itself.”12 Some academics distinguish degrees of coexistence: the height of ambition would be “integrated societies in which members of different ethnic, racial or religious groups live in harmony with one another,” while a minimalist approach would ask “only that members of such groups live together without killing each other.”13 But there are those who see reconciliation as necessary and inevitably more profound. Halpern and Weinstein argue that empathy is

23144_GB.book Page 289 Monday, February 9, 2009 11:46 AM

Beyond Coexistence

289

critical to reconciliation, noting that “coexistence without empathy is superficial and fragile,” adding: “Just below the surface is mistrust, resentment, and even hatred.”14 Coexistence, though, might be a first step. Huyse argues that there are three stages to reconciliation: replacing fear by nonviolent coexistence, building confidence and trust, and moving towards empathy.15 The final stage, according to Huyse, needs to be accompanied by building democracy and a new socioeconomic order.16 For him, empathy does not imply forgiveness or absolute harmony and does not exclude feelings of anger. Others turn this debate on its head. Enright argues that reconciliation is the act of two people coming together following separation, but forgiveness, on the other hand, is more moral in nature and starts as a private act.17 He contends that “one may forgive and not reconcile, but one never truly reconciles without some form of forgiving taking place.”18 This view highlights the distinction between thinking about reconciliation in the private sphere and thinking about it in more collective terms. As for the political realm, it tends more towards to the position of Huyse; that is, reconciliation does not imply seeking the Holy Grail of forgiveness as a prerequisite but is a more subtle and complex process.19 Forgiveness can be too easily exploited to hide the truth about the past, and goals within the political arena tend to be more modest generally – trying to attain coexistence before considering the more profound process of reconciliation. According to Huyse, different instruments are needed to develop this broad reconciliation: truthtelling, reparations, restorative justice, and processes to promote healing.20 This approach fits recent developments in “transitional justice,” where the concept of reconciliation is increasingly present. Here reconciliation finds itself in the midst of pragmatic political debates about political compromise and the degree of justice possible in countries coming out of conflict. In the last decade, reconciliation has increasingly become tied more broadly into postconflict processes. Concepts such as dealing with the past, uncovering the truth, delivering justice, and granting reparations to victims have all entered the reconciliation debate. The influence can be seen in truth commissions, in which reconciliation has become central. In the past, truth commissions were largely seen as investigative mechanisms to generate a definitive account of a conflict, but now their goals are perceived to be wider.21 It has become routine to consider how truth-recovery mechanisms can

23144_GB.book Page 290 Monday, February 9, 2009 11:46 AM

290

Brandon Hamber and Gráinne Kelly

contribute to reconciliation. This prompted Hayner to write that “the possibility of holding public hearings, advancing societal and individual healing, and taking part in or promoting a process of reconciliation (however defined) has opened wide the question of means, independent of the final end reached.”22 Thorough exploration of how the concept of reconciliation is used in transitional justice is beyond the scope of this chapter,23 but suffice to say the term has evolved from the individual to the political and policy arenas over the last two decades. Furthermore, we can see that reconciliation, as well as the processes it might imply, has multiple meanings and understandings attached to it. Broadly, there seems to be a tension between those who see reconciliation as a “soft” concept that can leave the door open for impunity and those that see it as a more challenging and profound social process. Our study, presented below, sheds some light on the value and place of these different perspectives in a society coming out of conflict.

understandings of reconciliation in northern ireland In January 2003, we embarked on a research project on “community reconciliation” in Northern Ireland.24 The term “reconciliation” is not well developed in the region and no agreed definition exists, despite increasingly common usage. The study explored how reconciliation is conceptualized and implemented, politically and at the grassroots, in different areas.25 Three researchers26 conducted interviews with fifty-eight individuals from local councils, political parties, and community groups. Issues explored included: views and opinions on reconciliation, how it related to one’s work and voluntary activities, relevant policies, practices and structures, relationships between and within sectors, and who was deemed to hold ultimate responsibility for building reconciliation.27 To ensure a profound discussion of the theme of reconciliation during our research, and specifically in interviews, it was important for us to have a clear sense of our parameters. Given the complicated history of terminology in Northern Ireland,28 we felt it would be grossly unfair to probe respondents on what they thought reconciliation was without us doing some work on the term ourselves. To stimulate discussion and to try to frame the reconciliation debate, we therefore presented interviewees with a definition of reconciliation

23144_GB.book Page 291 Monday, February 9, 2009 11:46 AM

Beyond Coexistence

291

that we felt was applicable to societies emerging from conflict. This provided a focus for discussion, helped identify the different and relevant elements, and gave respondents an opportunity to debate different views and to explore the possibility of a conceptual approach to reconciliation that was practically applicable to aspects of their work or experience. It gave us the opportunity to test our hypotheses against the expertise of those working on the ground in our casestudy areas.

a definition of reconciliation In developing our definition of reconciliation, we first reviewed a range of existing definitions. While all those we explored were extremely useful and informative, many were wordy and complex and often quite inaccessible. We were motivated by a desire to present a set of simple, yet comprehensive, elements inherent to a good definition of reconciliation. In devising our own working definition, we began by identifying what we felt were the main elements and then set out to incorporate elements identified from other sources. We explored definitions from dictionaries, handbooks, academic journals, and books written by practitioners of reconciliation. We duly acknowledge a number of texts that helped shape our definition.29 The result is the working definition below, which is, by its nature, incomplete. We were comfortable with this imperfection, which we viewed as a useful – possibly provocative – tool to stimulate further discussion rather than as a definitive statement that had to be defended. We see reconciliation starting from the premise that to build peace relationships requires attention. Thus, we defined reconciliation as the process of addressing conflictual and fractured relationships, and this includes a range of activities. It is a voluntary act that cannot be imposed.30 A reconciliation process generally involves five interwoven and related strands: 1 Developing a shared vision of an interdependent and fair society. The development of a vision of a shared future requires the involvement of the whole society, at all levels. Although individuals may have different opinions or political beliefs, the articulation of a common vision of an interdependent, just, equitable, open, and diverse society is a critical part of any reconciliation process.

23144_GB.book Page 292 Monday, February 9, 2009 11:46 AM

292

Brandon Hamber and Gráinne Kelly

2 Acknowledging and dealing with the past. The hurt, losses, truths, and suffering of the past need to be acknowledged, with mechanisms providing for justice, healing, restitution or reparation, and restoration (including apologies, if necessary, and steps aimed at redress). To build reconciliation, individuals and institutions need to acknowledge their own role in the conflicts of the past, accepting and learning from it in a constructive way so as to guarantee non-repetition. 3 Building positive relationships. Relationships must be built or renewed following violent conflict, and this involves addressing issues of trust, prejudice, and intolerance. This results in accepting commonalities and differences, and in embracing and engaging with those who are different from us. 4 Significant cultural and attitudinal change. Changes in how people relate to, and their attitudes towards, one another are also key. The culture of suspicion, fear, mistrust, and violence is broken down, and opportunities and space are opened up that enable people to hear and be heard. A culture of respect for human rights and human difference is developed, creating a context in which each citizen becomes an active participant in society and feels a sense of belonging. 5 Substantial social, economic, and political change. The social, economic, and political structures that gave rise to conflict and estrangement are identified, reconstructed or addressed, and transformed. Although we did not explore these formally in the research, three additional points are important to add because they influenced our thinking. First, a reconciliation process always contains paradoxes and even contradictions. It is neither neat nor easy and can, in itself, seem incongruous. Lederach talks about the paradoxes implicit within a reconciliation process: First, in an overall sense, reconciliation promotes an encounter between the open expression of the painful past, on the one hand, and the search for the articulation of a long-term, interdependent future, on the other hand. Second, reconciliation provides a place for truth and mercy to meet, where concerns for exposing what has happened and for letting go in favour of renewed relationship

23144_GB.book Page 293 Monday, February 9, 2009 11:46 AM

Beyond Coexistence

293

are validated and embraced. Third, reconciliation recognises the need to give time and place to both justice and peace, where redressing the wrong is held together with the envisioning of a common, connected future.31 Thus, reconciliation entails trying to address these complex paradoxes. As Lederach notes, aspects of the process stand in tension with one another – such as the articulation of a long-term, interdependent future, on the one hand, and the need for justice, on the other. Reconciliation is the process of trying to address these complex paradoxes. Thus we were aware that the strands of our working definition could themselves create tensions in the same vein: reconciliation requires dealing with the past but, at the same time, participating in developing a shared vision. Reconciliation is both a backward and a forward-looking process. Second, we cannot escape the fact that reconciliation is a morally loaded concept and that different people bring their own ideological bias. An individual’s understanding of reconciliation is generally informed by her or his basic beliefs about the world. Different ideologies of reconciliation can be identified.32 A religious ideology often emphasizes the rediscovery of a new individual and social conscience through moral reflection, repentance, confession, and rebirth. A human rights approach might stress regulating social interaction through the rule of law and preventing the recurrence of certain violations. And an intercommunal understanding might focus on bridging divides between different cultures and identities. Thus, we need to be aware that individuals will interpret differently the dimensions of reconciliation. Trying to reconcile different ideological positions – say, with regard to what attitudes need to change – is precisely what the reconciliation endeavour is about. Third, although our definition of reconciliation is expansive, we delineate the process of reconciliation from peacebuilding. We see peacebuilding, as distinct from peacemaking, as a process or series of processes that seek to establish peace and to prevent violence from continuing or re-emerging by addressing the root causes and the consequences of conflict. This can involve building institutions, community development, socio-economic development, social reconstruction, reconciliation, empowerment, mechanisms to address the past, and the development of effective governance. Different peacebuilding strategies will apply at the individual, community,

23144_GB.book Page 294 Monday, February 9, 2009 11:46 AM

294

Brandon Hamber and Gráinne Kelly

and political levels. Reconciliation, first and foremost, is a component of peacebuilding. We understand, however, that addressing relationships specifically, and to some degree achieving limited reconciliation, is necessary with regard to achieving any aspect of the peacebuilding process. Thus reconciliation is implicit in all peacebuilding processes. However, in discussing our definition in various fora some confusion between the concepts has remained. This is partly because any strategy for peacebuilding will inevitably involve some focus on relationships (as mentioned above), whether undertaking work that focuses on building institutions or a joint reconstruction project. So there is inevitably some overlap. In part, too, the confusion is caused by the breadth of the way we approach reconciliation. Some have asked: if you say reconciliation involves, for example, substantial economic and political change, then are you not conflating peacebuilding processes (such as those targeted at social reconstruction) with your concept of reconciliation? This confusion is resolved if one thinks about the strands we outline as the issues that need to be addressed in any process of dealing with relationships following conflict. Addressing damaged relationships is the essence of reconciliation, and our strands comprise the types of task that need to be undertaken. There can be an added confusion because reconciliation seems to imply that there was some relationship in the first place (conciliation) that has broken down. In societies in conflict there is often no relationship in the first place. Thus, we use the concept of (re)building relationships, implying building non-existent relationships and rebuilding those that have broken down. We frame our working definition from the perspective of thinking about addressing relationships in the broadest political sense; hence, the claims that reconciliation needs a joint vision and political or economic change. These should be understood in the wider context of thinking about relationships at a social level. Suppose, for the sake of simplicity, we present this as though there were only two individuals involved. To address a broken or perhaps even non-existent relationship between them: (1) they would have to share some common vision or understanding of the future – otherwise why bother to try to mend the relationship in the first place? – so their common reasons for wanting to have a relationship would have to be explored; (2) the hurts caused in the past

23144_GB.book Page 295 Monday, February 9, 2009 11:46 AM

Beyond Coexistence

295

would need to be acknowledged (this could include an apology or at least the recognition that actions undertaken by one or both parties had had an impact on the other, causing pain or suffering); (3) steps would need to be taken to (re)build their relationship, such as dialogue or engaging in joint activities; (4) work would need to be undertaken to address differences in attitude resulting from the conflict (this could include participants telling their version of events, attempts to reduce prejudice, or dialogues to humanize “the other”); and (5) if they were to have a relationship of any kind, there would need to be parity between them in social and economic terms, so measures would need to be taken to maximize this. Reconciliation, for us, is the process of addressing these five strands. It is not solely about the outcome of doing so (say, a mended relationship) because the social, interpersonal, and political context is continually changing. This is by definition complex and incomplete, and paradoxes and ambivalences will remain. For instance, having acknowledged one has hurt someone, it may be difficult ever to share with them a completely common view of the future or to reconcile all attitudes. And for a range of reasons, it may not be possible for individuals grappling with a broken down relationship ever to be absolutely equal, socially or economically, and this can cause continual ruptures and contradictions in the process of rebuilding. Reconciliation is thus, by nature, conflictual and dynamic.

c o n c e p t ua l i z i n g r e c o n c i l i at i o n at a local level It is not possible in a chapter of this length to report on all our findings, so we have chosen to focus on two aspects; namely, how individuals defined and conceptualized reconciliation and how they react to the working definition outlined above.33 Some findings are presented below in a summarized form. In terms of how individuals conceptualized reconciliation we found that interviewees were open to a discussion of reconciliation and, in general terms, were willing to explore how it related to them and fitted with their work. While complex ideas about reconciliation were aired, most interviewees were fairly vague on the details of what it might entail or how it might be pursued. Bracketing together the responses, the following themes emerged as to what reconciliation might primarily be about:

23144_GB.book Page 296 Monday, February 9, 2009 11:46 AM

296 •

• • • • • • •

Brandon Hamber and Gráinne Kelly

addressing relationships between former enemies and those estranged due to conflict; engaging in confidence and trust-building measures; rehumanizing and getting to know the “other”; recognizing that harm had been done to another; showing remorse about this; providing explanations as to why it had happened; finding ways to heal old wounds; and seeking means of accommodation, partnership, and respect for difference, and recognizing mutual dependence.

There was a distinct lack of clarity among interviewees as to what, specifically, reconciliation meant. Most tended to view this as an obstacle to intercommunal processes, policies, and practices to address the legacy of the conflict. The lack of clarity was also contradictory on some levels – given that some interviewees were involved in work funded under the reconciliation banner. This did not mean that some did not have their own understanding of the term, but a shared understanding was certainly not evident. Few could articulate a vision of what a reconciled society would look like. Several respondents seemed to hold the view that it would be more tolerant, with less segregation and greater social ease and freedom from fear. Most were fairly pessimistic about achieving this in the short term. The respondents appeared to have difficulty relating reconciliation, as a concept, to their practice. It was not a term they used in their daily work or that they felt particularly comfortable in using to describe what they did. Of those directly engaged in self-described peacebuilding activities, most appeared more comfortable with “community relations,” “good relations,” or “community cohesion.”34 No interviewee advocated replacing these with reconciliation, although many seemed comfortable using them interchangeably. Interestingly, we found that reconciliation seemed to imply a much deeper process, for which some felt the communities with which they worked were not prepared. This was one reason why they did not use the term (we expand on this point below). We also found that views of reconciliation were influenced by ideological stance. Some interviewees, mostly clergy and unionist politicians, made theological references. For others, however, reconciliation as a concept stimulated a negative or cynical reaction; it was dismissed as being theological and therefore not relevant. Little reference was made to “forgiveness,”

23144_GB.book Page 297 Monday, February 9, 2009 11:46 AM

Beyond Coexistence

297

which was often highlighted in theological literature as an important element. It did not feature highly as a prerequisite of reconciliation, even for those from a religious background. With a few exceptions, the interviewees spoke about reconciliation in the abstract, making no reference to any changes required of themselves. Funding from the European Union Special Support Programme for Peace and Reconciliation35 also heavily influenced perceptions. Reconciliation as a concept was largely viewed through the prism of the eu program – despite few being clear as to what a European definition of reconciliation might be. Most felt that the funding bodies provided little direction in this regard.36 This is best captured by one respondent, who, when asked, “What is reconciliation?” said: “It’s what you have to put down on a form to get the money. It is funder-speak and it doesn’t mean much to people.” Few respondents made reference to reconciliation as anything other than a “two traditions” (Roman Catholic and Protestant) issue. A more holistic understanding of the need to address relationships across society – including in areas little affected by the “Troubles” or relationships between groups and the Irish and British states – did not come across strongly. The role of members of ethnic minorities in reconciliation initiatives is also an absence that needs to be addressed. Having engaged each interviewee in a general discussion of reconciliation, we then presented – so as not to overwhelm them with detail – a short version of our working definition (it included a brief introductory statement and the headings of the five strands). We did so with some apprehension, having no way of knowing how they would react or if they would constructively engage with it. Reaction to the definition was, however, overwhelmingly positive and brought the discussion to a different level. Several respondents were surprised by its complexity, admitting that they had not thought the concept through in such detail. The impression we formed was that interviewees had seen reconciliation as very abstract and were pleasantly surprised to see it broken down into possible steps or components. One councillor reflected: “It deals much more widely with it than I would have done.” But some also suggested that the definition was only helpful as a “lens” through which to consider reconciliation. Some interviewees questioned whether there were earlier steps to take before being in a position to tackle the issues proposed. One

23144_GB.book Page 298 Monday, February 9, 2009 11:46 AM

298

Brandon Hamber and Gráinne Kelly

saw dealing with anger as a prerequisite: “I think there’s a lot of anger that needs to be dealt with before we can move on.” Another felt confidence-building work was necessary before any other element could be seriously addressed. Another felt there was work to do in getting people simply to recognize that reconciliation was important – and that they needed, and had a responsibility, to be involved. This respondent noted: “The definition starts too far down the road: why would anyone want to address the past if they feel their community provides everything they need? … The pyramid of sectarianism shows us that we’re all involved. But how do you convince me that I’m involved, that I need to be part of this? So there’s an earlier stage of helping people to see this as a need … this is a responsibility.” These points link with the earlier comments of some respondents who were afraid to introduce the concept to those with whom they worked in case they were not ready for it. This also fits with the idea that reconciliation is still largely seen as a Catholic-Protestant issue, implicating those directly affected by or involved in violence. A more holistic understanding of the need to address relationships across society – including areas that have remained largely unaffected – and between citizens and the state was not very evident. We were interested in what interviewees felt were the crucial aspects of the definition as well as in any aspects they felt were controversial, unnecessary, or overemphasized. We were also interested in which elements they would prioritize and how they would be ranked. Needless to say, respondents differed. Some suggested all features were of equal importance and interlinked – that they would have to happen at the same time and be given equal emphasis. Others found it difficult to state a preference and felt that it would depend on the individual or community concerned and their particular experiences of the conflict. A typical response here was: “I agree with the five main areas, but it depends on where you are looking at this from and who you are. How you have been affected by the conflict will depend on the way you answer this. If you are from a victims’ group you may be most interested in the justice aspects … The definition will have different resonances depending on who is looking at it.” But most respondents expressed opinions as to which aspects they would prioritize and the order in which these steps could logically be taken. Few spent any time commenting upon or contradicting the assertion about a shared vision, although some interviewees were more pessimistic about the possibility of a

23144_GB.book Page 299 Monday, February 9, 2009 11:46 AM

Beyond Coexistence

299

common view of the future. There was some divergence among the case studies. Several respondents in Ballymena felt there should be a major emphasis on developing a shared vision, yet this did not feature highly in Omagh or Armagh. One possible explanation is that Armagh and Omagh appear to be more mixed communities and there may be a greater sense of commonality. But this is speculative. On the whole, acknowledging and dealing with the past was, by a large margin, the aspect that respondents gave most emphasis. We had thought many would read this element as being specifically about a truth commission, something about which many in Northern Ireland have mixed feelings. But we found that dealing with the past was not only viewed as requiring particular consideration but also, according to many, as something that had to be the first step in any reconciliation process. This was the case for councillors from all political parties and for most of those working in the voluntary sector. One interviewee, from a victims’ group, emphasized that this was the most important issue for his members, though he suggested that the word “effectively” be added to the statement. Few of our interviewees, however, specified what “dealing with the past” would involve, and they were vague on the detail. Some made reference to judicial inquiries, while others referred to simple acknowledgment and storytelling. Surprisingly, given the focus on dealing with the past, there was little emphasis on the idea of a truth commission.37 Few interviewees referred to it as a specific “tool.” So while most respondents definitely saw value in dealing with the past, they did not know how to deal with it effectively. Some seemed to fear anything too structured or challenging. But there was an implied view that reconciliation had to go deeper than dealing with current relationships and that it had to address the past. Most respondents made some reference to building positive relationships as being an important aspect, but this was the focus of little discussion. Perhaps they felt it self-evident, given that most of those interviewed were involved in community relations work. Notably, this aspect of the definition was given most attention by the Ballymena interviewees, with some prioritizing it above all others. This might suggest that, in this area, groups and councillors are still at the initial stages of building relationships and reaching out. The responses on attitudinal change were particularly interesting as they reflected an understanding of the term that differed from what we had intended.

23144_GB.book Page 300 Monday, February 9, 2009 11:46 AM

300

Brandon Hamber and Gráinne Kelly

While some interviewees agreed that significant cultural and attitudinal change was important in a process of reconciliation, others were uncertain about its implications. We were envisaging that changes were required in how people related to, and their attitudes towards, one another – that reconciliation required breaking down cultures of suspicion, fear, mistrust, and violence and building a culture of human rights, tolerance, and mutual respect. But some interviewees perceived the statement as implying that people would have to change their own “cultural traditions” in order for reconciliation to take place. This appeared particularly true of those from a Protestant background, who asserted that culture was intrinsic to communities and not something that should be changed. A community development worker with rural Protestant groups noted: “Protestant people have a real fear of losing their identity and want no part in changes in their culture. They will not take part in any reconciliation initiatives which aim to make them lose part of their own identity.” On socio-economic and political change, the vast majority of respondents felt that this already enjoyed a disproportionate emphasis in the Northern Ireland peace process, to the detriment of relationship-building and to addressing the legacy of the past. One victims’ group worker said: “I would say that, at present, ‘acknowledging and dealing with the past’ and ‘building positive relationships’ are being overlooked and that there is a focus on this idea of ‘substantial social, economic and political change.’” Another did not see the value, noting: “substantial social and economic change – I wouldn’t see that as essential. I don’t immediately see why there is a need for economic change for reconciliation to take place. People’s lives shouldn’t depend on what politicians do, but politicians do need to be involved in reconciliation. They need to see that their political opponents’ aspirations need to be considered.” But, there were a few dissenters, both from the voluntary sector and from councillors who placed high priority on social and economic change.

implications for the wider reconciliation debate We would argue that the lack of conceptual clarity, and the difficulty our respondents had in trying to find or make a concept such as reconciliation useful at the local level, is not confined to those we interviewed but, rather, is symptomatic of the peacebuilding,

23144_GB.book Page 301 Monday, February 9, 2009 11:46 AM

Beyond Coexistence

301

conflict resolution, and transitional justice field the world over. Some important steps have been taken towards a practical definition of reconciliation,38 and we set out to build on this, refining the concept. The purpose of this research was not, however, to come up with a final definition of reconciliation (although we hope our definition at least provides some direction) but to explore how people were themselves working with the term and how it resonated for them. Developing a conceptual approach to reconciliation that informs practice, and vice versa, should not be restricted by any program or model (ours included), and clearly further debate on the meaning of reconciliation is needed in and about Northern Ireland and elsewhere. This is important not only in terms of practice but also because there are many misperceptions of the term and concerns about how it is used. The same can be said with regard to the debate about dealing with the past in and around Northern Ireland, which our interviewees felt was the next major component of the reconciliation agenda. Much work remains to unpack what this really means in the Northern Ireland context. We did not find much endorsement for a truth commission at this stage, but this probably reflects a deeper concern about how this process will be used rather than a dismissal of the need to address the past. In addition, we found that, in some areas, where little peacebuilding work has been done, the process of building relationships still needs to be undertaken before wider processes that address a contested past take place. In these areas, our research suggests, it would be a mistake to jump prematurely into the debate on dealing with the past before some of the more basic relationship-building work between communities has taken place. This implies that, in Northern Ireland and elsewhere, we need to recognize geographical differences in how to approach reconciliation in different localities, depending on their experience of violence and their demography. In this sense, our research emphasizes, as does other research,39 that understanding and addressing localized dynamics is an important part of the reconciliation process. The local context can result in different parts of the reconciliation process needing to be emphasized, and this is where we believe our definition can be helpful; that is, it can disaggregate the reconciliation process. For example, the surprisingly limited focus on the need for economic change in our research in Northern Ireland reflects wider

23144_GB.book Page 302 Monday, February 9, 2009 11:46 AM

302

Brandon Hamber and Gráinne Kelly

debates about the peace II program in and around Northern Ireland – namely, that it overemphasized economic reconstruction at the expense of dealing with relationships and attitudes between communities. This also reinforces the finding that reconciliation is understood largely through the prism of the eu and that the term has become synonymous with the peace program, which, under peace II, had a strong socio-economic focus. On the whole, most interviewees seemed to support this view. In South Africa, by contrast, the reconciliation agenda has been criticized for overly focusing on relationships and ignoring the socio-economic context.40 It appears the opposite is true in Northern Ireland. This suggests that different societies have different priorities. That said, most practitioners would probably stick to the view that relationships and the rehumanization of the other41 are critical in postconflict situations and that mechanisms need to be put in place to address them as well as the socio-economic reality. These can operate at the individual level (say between victim and perpetrator) or between groups (say through dialogue), but the degree to which such work affects the entire society is difficult to gauge. This perspective seems to be a more bottom-up view of reconciliation. Some remain convinced that national processes of acknowledgment (such as a truth commission) can unlock the possibilities of reconciliation not only for individuals but also for nations.42 This seems to be about starting (at least to a degree) with more top-down processes that can ripple through the society. Questions remain, however, as to whether a society can be reconciled en masse. Some are sceptical, noting it is problematic to consider societies as having unitary psyches that can be affected by specific macro processes.43 Those evaluating the impact of the South African Truth and Reconciliation Commission have also argued that, despite political transformation, relations between political opponents at a community level, coupled with the lack of truth, maintain volatile local conflicts.44 Our research suggests that national reconciliation does not automatically transform communities, but that does not mean the value of national processes (which also include reparations strategies for victims or even trials) should be underestimated. They can help to create conditions conducive to better relationships, to create a common vision for the future, and to build social, intergroup, and individual reconciliation over the long term. Needless to say, both top-down and bottom-up processes are necessary.

23144_GB.book Page 303 Monday, February 9, 2009 11:46 AM

Beyond Coexistence

303

In the Northern Ireland context, however, we also found that there is nervousness regarding promoting reconciliation and that the process is not adequately understood or supported in the political arena. We found, at the community level, that local politicians were blamed for continuing to play sectarian and polarizing politics, for undermining attempts to build relationships, change attitudes, or assist in finding a common vision. This, our interviewees told us, was because politicians are “rewarded” through segregation, both politically and geographically; that is, they get the votes of specific communities if they continue to paint others as separate and different. Some respondents also noted that the media were particularly unconstructive, focusing as they did on areas of disagreement rather than on commonalities. We were encouraged by the finding that reconciliation is a concept to which individuals are attracted and are interested in operationalizing despite these difficulties; however, as we expected, we also found that few use the term to describe their work. The term is not really used locally (it is used extensively in the funding program), and practitioners preferred to use the terms “community relations,” “good relations,” or “community cohesion.” Part of this is about the assumed meanings attached to the concept of reconciliation. For example, because the term was first written about in Northern Ireland (and elsewhere) from a religious perspective, it has acquired strong theological connotations. Whether correct or not, there seems to be a view that a religious usage suggests that reconciliation comes cheaply – that it might be associated with forced forgiveness or imply forgiveness without truth or justice first prevailing. This is not necessarily the perspective of those writing from a religious perspective,45 but it is how the term is seen by many. Reconciliation is also often seen as a “soft” concept rather than as a “hard” one, and it is a term that can be used negatively at a political level, making many weary of it. Internationally, at the political level, it is fairly easy to find examples of drives towards reconciliation being exploited by politicians to hide the truth about the past. There is a danger that political leadership can use terms such as reconciliation to foster what Ignatieff calls “false reconciliation,” whereby they “indulge in the illusion that they had put the past behind them,” with the party responsible for injustice trying to impose a forgive-and-forget mentality.46 Some victims, for example, who testified to the South African Truth and Reconciliation Commission complained of “false

23144_GB.book Page 304 Monday, February 9, 2009 11:46 AM

304

Brandon Hamber and Gráinne Kelly

reconciliation” and felt forced to reconcile or expected to forgive the perpetrators.47 More recently, the Algerian government’s Charter for Peace and National Reconciliation has been criticized for potentially entrenching impunity, denying the rights and needs of victims, and impeding the reconstruction.48 Although some of those we interviewed had these sorts of fears, what was interesting was that, on deeper reflection, they also had the opposite concern of “false reconciliation”: they feared a reconciliation process that might be too deep. One of the major findings of our research is that reconciliation is seen as a challenging and sometimes threatening process. Respondents at times chose not to use the term in their daily work because they feared it would scare people off. In some cases this might have been associated with its perceived religious overtones, but in others it was because reconciliation was understood as “coming together” and thus as involving some process of social and political transformation. Respondents essentially chose terms such as “good relations” because they had more of a coexistence feel to them than did the term “reconciliation.” Contrary to this, though, most respondents seemed instinctively to have an understanding of reconciliation as more than a form of limited coexistence. In fact, some would argue that coexistence has been the dominant model for the majority of those in Northern Ireland (mainly among the middle class) not directly affected by the conflict and that this has led to a “separate development” that has perpetuated division. The minimalist notion of reaching a state where “members of such groups live together without killing each other”49 might be a first step (as many of our respondents also indicated), but our research challenges the view that coexistence is enough. Although suspicious of the process of reconciliation in Northern Ireland and concerned about what its implications might be (and whether the depth it implied was possible), the respondents with whom we spoke appeared intuitively to know that, in a society emerging from bitter conflict, what was needed was a process that involved more than simply building a society in which individuals can exist side by side. That said, the respondents were under no illusion that this was an easy process, and they knew it would be threatening to those used to living apart and in conflict, particularly in the absence of a conducive social and political environment. Overall, and we imagine this is true for many societies emerging from conflict, in Northern Ireland there seems anxiety around the idea that genuine reconciliation will mean

23144_GB.book Page 305 Monday, February 9, 2009 11:46 AM

Beyond Coexistence

305

compromise, or at least the rehumanization of old enemies. Of course, this is what it does mean, and our research suggests that this is one reason why our respondents reacted cautiously to the term. This left us asking: does some of the opposition to the concept of reconciliation, notwithstanding realistic concerns about the potential political abuse of the term as outlined above, come from its perceived “softness”? Or, more important, is it its inevitable “hardness” that groups in conflict fear? Giving up the familiar parameters of how one understands the “other” implies a threat to one’s long-held identity as well as to conceptualizations of the conflict as a clear, black-and-white contest between “good guys” and “bad guys.” Reconciliation implies a muddying of the waters. Our research points to some readiness – for example, in the cautious support for exploring how to deal with the past – to engage in breaking down myopic understandings of the determinants of the conflict in Northern Ireland. But the reaction to the term, the fact that community workers are reluctant to use it, and the lack of political support for embedding reconciliation practice locally certainly suggest that much remains to be done to create the conditions conducive to a deep reconciliation process.

notes Dr Brandon Hamber is director of the International Conflict Research Institute (incore), a United Nations research centre for the study of conflict at the University of Ulster, Northern Ireland. Gráinne Kelly is policy and practice coordinator at incore. 1 This chapter is based on a larger piece of research: Brandon Hamber and Grainne Kelly, A Place for Reconciliation? Conflict and Locality in Northern Ireland (Belfast: Democratic Dialogue, 2005). The chapter includes extracts from this work and was originally presented at a conference entitled Reconciliation, held by the Nationalism and Ethnic Conflict Research Centre, University of Western Ontario, 14–15 May 2005. 2 John Paul Lederach, “Five Qualities of Practice in Support of Reconciliation Processes,” in Forgiveness and Reconciliation: Religion, Public Policy and Conflict Transformation, ed. Raymond G. Helmick and R.L. Petersen, 193–204 (Radnor: Templeton Foundation Press, 2002). 3 Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York: Routledge, 2001).

23144_GB.book Page 306 Monday, February 9, 2009 11:46 AM

306

Brandon Hamber and Gráinne Kelly

4 Andrew Rigby, Justice and Reconciliation: After the Violence (London: Lynne Rienner, 2001). 5 Lederach, “Five Qualities of Practice.” 6 Alex Boraine, A Country Unmasked: South Africa’s Truth and Reconciliation Commission (New York: Oxford University Press, 2000). 7 Rigby, Justice and Reconciliation. 8 Harvey Weinstein and E. Stover, “Introduction: Conflict, Justice and Reclamation,” in My Neighbour, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, ed. Harvey Weinstein and E. Stover, 1–26 (Cambridge: Cambridge University Press, 2004). 9 Boraine, A Country Unmasked. 10 Rigby, Justice and Reconciliation. 11 David Bloomfield, “The Context of Reconciliation,” in Reconciliation after Violent Conflict: A Handbook, ed. David Bloomfield, Teresa Barnes, and Luc Huyse, 10–18 (Stockholm, Sweden: International Institute for Democracy and Electoral Assistance, 2003). 12 Coexistence Initiative, , viewed 14 March 2005. 13 Aneelah Afzali and Laura Colleton, “Constructing Coexistence: A Survey of Coexistence Projects in Areas of Ethnic Conflict,” in Imagine Coexistence: Restoring Humanity after Violent Ethnic Conflict, ed. Antonia Chayes and Martha L. Minow, 3–20 (San Francisco: pon Books/JosseyBass, 2003). 14 Jodi Halpern and Harvey Weinstein, “Rehumanizing the Other: Empathy and Reconciliation,” Human Rights Quarterly 26 (2004): 561–83. 15 Luc Huyse, “The Process of Reconciliation,” in Reconciliation after Violent Conflict: A Handbook, ed. David Bloomfield, Teresa Barnes, and Luc Huyse, 19–33 (Stockholm, Sweden: International Institute for Democracy and Electoral Assistance, 2003). 16 Ibid. 17 Robert Enright, Forgiveness Is a Choice: A Step-by-step Process for Resolving Anger and Restoring Hope (Washington, dc: American Psychological Association, 2001). 18 Ibid. 19 Huyse, “The Process of Reconciliation.” 20 Ibid. 21 Hayner, Unspeakable Truths. 22 Ibid. 23 B. Hamber, “‘Ere their story die’: Truth, Justice and Reconciliation in South Africa,” Race and Class 44, 1 (2002): 61–79.

23144_GB.book Page 307 Monday, February 9, 2009 11:46 AM

Beyond Coexistence

307

24 The study was carried out under the auspices of Democratic Dialogue, a think tank based in Belfast, Northern Ireland, and was supported by the Northern Ireland Community Relations Council, which awarded us a research grant under the Peace II Measure 2.1 program to undertake this study. 25 We chose three local authorities as case studies: Armagh City and District Council, Omagh District Council, and Ballymena Borough Council. A semi-structured interview formed the main part of the research. 26 We are indebted to Dr Gareth Higgins and Tony MacAulay, who undertook the field research in Armagh and Ballymena, respectively. Gráinne Kelly undertook the field research in the Omagh District area. 27 Themes from the interviews were extracted, categorized, and interpreted by the project team within the context of the international and domestic literature on reconciliation. More details on the methodology of the study can be found in Hamber and Kelly, A Place for Reconciliation. 28 Language has always been fraught with controversy on the island of Ireland. It has been used as an indicator of perceived political and/or religious affiliations. It has resulted in an escalation of tensions and a breakdown of already fragile relationships. The language of “peace” has not escaped the minefield of contested terminology, in which the connotations of certain words and phrases within different communities, and their popularity and appropriateness, wax and wane over time. The search for an agreed or acceptable language is important in resolving any conflict. Phrases such as “community relations,” “reconciliation,” “peacebuilding,” and, more recently, “good relations” and “community cohesion” have all been used to describe attempts to address the divisions in and around Northern Ireland. It is often difficult to track their entry into the lexicon or to be sure about distinctions others may make between them. 29 adm/cpa, Reconciliation Report: Southern Border Counties in Ireland (Monaghan: adm/cpa Programme for Peace and Reconciliation, 2003); Hizkias Assefa, “Reconciliation,” in Peacebuilding: A Field Guide, ed. L. Reychler and T. Paffenholz, 366–42 (Colorado: Reinner Publishers, 2001); David Bloomfield, Teresa Barnes, and Luc Huyse, eds., Reconciliation after Violent Conflict: A Handbook (Stockholm, Sweden: International Institute for Democracy and Electoral Assistance, 2003); B. Hamber and H. van der Merwe, “What Is This Thing Called Reconciliation?” Reconciliation in Review 1, 1 (1998): 3–6; Lederach, “Five Qualities of Practice”; J.P. Lederach, Building Peace: Sustainable Reconciliation in Divided Societies (Washington, dc: United States Institute of Peace Press, 1997); Norman Porter, The Elusive Quest: Reconciliation in Northern Ireland (Belfast: Blackstaff Press, 2003); Andrew Rigby, Justice and Reconciliation: After the Violence

23144_GB.book Page 308 Monday, February 9, 2009 11:46 AM

308

30 31 32

33

34

35

36

Brandon Hamber and Gráinne Kelly

(London: Lynne Rienner, 2001); David Stevens, The Land of Unlikeness: Explorations into Reconciliation (Dublin: Columba Press, 2004); Hugo van der Merwe, The Truth and Reconciliation Commission and Community Reconciliation: An Analysis of Competing Strategies and Conceptualizations (Fairfax, va: George Mason University, 1999). Bloomfield, Barnes, and Huyse, Reconciliation after Violent Conflict. Lederach, Building Peace. Hamber, “‘Ere their story die’”; Hamber and van der Merwe, “What Is This Thing Called Reconciliation”; van der Merwe, The Truth and Reconciliation Commission and Community Reconciliation: An Analysis of Competing Strategies and Conceptualizations (Fairfax, va: George Mason University, 1999). For the detailed report on all the findings, see Hamber and Kelly, A Place for Reconciliation. The report is also available online at , 27 February 2005. This is not surprising as there is a complex debate in Northern Ireland about what is termed “community relations” work; that is, broadly addressing the relationships between Catholic and Protestant communities. There have been various government initiatives to develop this type of work and they have had varying degrees of success. There are also various critiques of “community relations” work. We outline a history of the term and these arguments in Hamber and Kelly, A Place for Reconciliation. This program has had three main phases, known as peace I (1995–2000) and peace II (2000–06) and peace III (2007–12). These are unique eufunded programs, covering the six counties of Northern Ireland and the six counties of the republic around the border (Cavan, Donegal, Leitrim, Louth, Monaghan, and Sligo). peace I was introduced by the European Commission in 1995 and supported more than thirteen thousand projects in Northern Ireland, focusing on job creation, social inclusion, urban and rural regeneration, and cross-border cooperation, all aimed at building peace and fostering reconciliation. Approximately €536 million was made available. A new five-year peace program (peace II) was belatedly introduced in 2000. Approximately €500 million was allocated, of which €400 million was to be spent in Northern Ireland (the remainder in the border counties), supplemented by government contributions. The program was worth over €707 million (larger than initial allocations) and was designed to address the legacy of the “Troubles.” It specifically aimed to encourage “progress towards a peaceful and stable society and to promote reconciliation.” The research which is at the heart of this paper was funded under the peace II program. There have been a number of reports in Northern Ireland that have criticized the lack of clarity concerning reconciliation and how you measure it.

23144_GB.book Page 309 Monday, February 9, 2009 11:46 AM

Beyond Coexistence

309

See Coopers and Lybrand, Mid-term Evaluation of the Programme for Peace and Reconciliation (Belfast: Department of Finance and Personnel, 1997); B. Harvey, Review of the Peace II Programme (York: The Joseph Rowntree Charitable Trust, 2003); Northern Ireland Voluntary Trust, Taking Risks for Peace: A Midterm Review by an Intermediary Funding Body of the eu Peace Process (Belfast: Northern Ireland Voluntary Trust, 1997). Interestingly, in the extension of the peace II program (peace II+) attempts have been made to tighten the focus on reconciliation. The working definition presented in this chapter has been used for this purpose. 37 The question of whether Northern Ireland should have a truth commission is beyond the scope of this chapter. There is currently much debate on this issue. See Christine Bell, “Dealing with the Past in Northern Ireland,” Fordham International Law Journal 26, 4 (2003): 1095–147; Eolas Project, Consultation Paper on Truth and Justice: A Discussion Document (Belfast: Eolas Project c/o Relatives for Justice, 2003); Brandon Hamber, “Rights and Reasons: Challenges for Truth Recovery in South Africa and Northern Ireland,” Fordham International Law Journal 26, 4 (2003): 1074–94; Brandon Hamber, ed., Past Imperfect: Dealing with the Past in Northern Ireland and Societies in Transition (Derry/Londonderry: University of Ulster and incore, 1998); Brandon Hamber, Dorte Kulle, and Robin Wilson, Future Policies for the Past (Belfast: Democratic Dialogue, 2001); Healing Through Remembering, Report of the Healing through Remembering Project (Belfast: Healing Through Remembering, 2002); Angela Hegarty, “The Government of Memory: Public Inquiries and the Limits of Justice in Northern Ireland,” Fordham International Law Journal 26, 4 (2003): 1048–192; Angela Hegarty, “Truth, Law and Official Denial: The Case of Bloody Sunday,” Criminal Law Forum 15 (2004): 119–246, House of Commons, “Ways of Dealing with Northern Ireland’s Past: Interim Report – Victims and Survivors. Tenth Report of Session 2004–2005 (London: House of Commons: Northern Ireland Affairs Committee, 2005); Fionnuala Ní Aoláin, “Truth Telling Accountability and the Right to Life in Northern Ireland Issue,” European Human Rights Law Review 5 (2002): 572–90; niacro and Victim Support Northern Ireland, All Truth Is Bitter: A Report of the Visit of Doctor Alex Boraine (Belfast: niacro and Victim Support Northern Ireland, 1999); Bill Rolston, “Assembling the Jigsaw: Truth, Justice and Transition in the North of Ireland,” Race and Class 44, 1 (2002): 87–105; Bill Rolston, Turning the Page without Closing the Book: The Right to Truth in the Irish Context (Dublin: Irish Reporter Publications, 1996). 38 Bloomfield, Barnes, and Huyse, eds., Reconciliation after Violent Conflict: A Handbook.

23144_GB.book Page 310 Monday, February 9, 2009 11:46 AM

310

Brandon Hamber and Gráinne Kelly

39 H. Van der Merwe, “National and Community Reconciliation: Competing Agendas in the South African Truth and Reconciliation Commission,” in Burying the Past: Making Peace and Doing Justice after Civil Conflict, ed. Nigel Biggar, 85–105 (Washington, dc: Georgetown University Press, 2001); Hugo van der Merwe, “National Narratives versus Local Truths: The Truth and Reconciliation Commission’s Engagement with Duduza,” in Commissioning the Past: Understanding South Africa’s Truth and Reconciliation Commission, ed. Deborah Posel and Graeme Simpson, 204–19 (Johannesburg: Witwatersrand University Press, 2002)., 40 Hamber, “‘Ere their story die.’”; Van der Merwe, “National and Community Reconciliation”; H. van der Merwe, P. Dewhirst, and B. Hamber, “Non-governmental Organisations and the Truth and Reconciliation Commission: An Impact Assessment,” Politikon 26, 1 (1999): 55–79. 41 Halpern and Weinstein, “Rehumanizing the Other.” 42 Boraine, A Country Unmasked. 43 B. Hamber and R. Wilson, “Symbolic Closure through Memory, Reparation and Revenge in Post-conflict Societies,” Journal of Human Rights 1, 1 (2002): 35–53. 44 van der Merwe, “National Narratives versus Local Truths.” 45 Reconciliation advocates coming from a religious perspective are quick to point out that, when reconciliation is coupled with calls for forgetting or concealing, it is spurious. See Boraine, A Country Unmasked. Even those who see forgiveness as in some way linked with reconciliation generally argue that what is “required is not to forget but to forgive the past and thus be in a position to move forward together.” See Rigby, Justice and Reconciliation. 46 Michael Ignatieff, “Articles of Faith,” Index on Censorship 5, 96 (1996): 110–22. 47 B. Hamber, T. Maepa, T Mofokeng, and H. van der Merwe, H., Survivors’ Perceptions of the Truth and Reconciliation Commission and Suggestions for the Final Report. Submission to the Truth and Reconciliation Commission (Johannesburg: Centre for the Study of Violence and Reconciliation, 1998). 48 Algerian Charter Risks Reinforcing Impunity and Undermining Reconciliation, Press Statement by the International Centre for Transitional Justice, 26 September 2005. Available at . 49 Afzali and Colleton, “Constructing Coexistence.”

23144_GB.book Page 311 Monday, February 9, 2009 11:46 AM

Index

accountability, 38, 60, 86, 92, 94, 98, 103, 104, 117, 141, 218 acknowledgement, 8, 23, 29, 30, 33, 24, 36–49, 75, 135, 136, 137, 139, 140, 174–5, 178–9, 180, 181, 186–7, 193, 197, 292, 296, 299, 302; definition, 36, 181; modes of, 37–8, 302 alternative mechanisms, 130–1. See also traditional mechanisms Angola, 187–8 apology, 17, 29, 31, 75, 135–6, 188, 223, 224, 295. See also repentence Benzekri, Driss, 63, 71, 73, 76 Bonhoeffer, Dietrich, 29 Bosnia and Herzegovina, 10, 44, 207–28. See also icty ceremony, 154, 189–90 co-existence, 12, 149, 288–9, 298, 304 compensation, 20, 31, 54, 58, 60, 61, 62, 65, 68, 74, 75, 99, 119, 121, 183, 275. See also restitution contact hypothesis, 10, 147, 150–3

context, 11, 38, 48, 69, 88, 106, 166, 169, 292, 301–2 culture, 10, 11, 12, 13, 39, 54, 69, 72, 89, 91, 97, 100, 132, 134, 149, 151, 152, 162, 170–1, 189, 195, 239, 241, 292, 300; culture of impunity, 87; cultural sensitivity, 87 denial, 22, 23, 42, 37, 43–4, 26, 53, 135, 179 Dayton Agreement, 10, 215 East Timor, 86 education reform, 3, 11, 147, 216, 217, 220, 276 exhumation, 83, 131, 132, 139 forgetting, 28, 29, 63, 86, 116, 117, 122–3, 179, 187–8, 238, 288, 303. See also memory forgiveness, 4, 7, 8, 9, 10, 17, 18– 25, 28, 29, 31, 34, 47, 62, 95, 98, 116, 117, 180, 181, 246, 287–90, 297 Guatemala, 116–41; Comisión para el Esclarecimiento Histórico, 9,

23144_GB.book Page 312 Monday, February 9, 2009 11:46 AM

312

Index

118, 119, 123, 129–30, 135, 137; Recuperación de la Memoria Histórico, 118, 129, 130, 132, 139 historical record, 8, 9, 29, 120, 217 human rights, 11, 42, 53, 54, 87, 89, 91, 97, 100–1, 102, 103, 104, 106, 120, 211, 214, 218, 233, 234, 236, 237, 241, 243, 253–4, 287, 288, 292, 300 integrated schools, 148–9, 151 integration, 64, 148, 149, 163, 167, 217, 240, 254 International Criminal Court (icc), 3, 86, 177 International Criminal Tribunal for the Former Yugoslavia (icty), 3, 92, 214, 288 International Criminal Tribunal for Rwanda (ictr), 3, 9, 87, 92 Israel, 10, 147, 151–2, 180 justice, 3, 5, 6, 9, 13, 26, 33, 67, 103, 104, 119, 123, 129, 214, 233, 238, 243, 265, 276–7, 289, 292 Kenya, 188 King Hassan ii, 53, 55, 56, 59 Lebanon, 11, 72 media, 27, 67, 70, 72, 183, 227, 233, 265, 303 memory, 4, 29, 30, 32, 66 mixed religion schools. See integrated schools Morocco, 9, 53–77; Conseil Consultatif des Droits de l’Homme, 59, 60, 71, 76; Independent

Arbitration Panel, 60–3, 65; Instance Équité et Réconciliation, 53, 64–77 Mozambique, 86, 188 narrative, 42, 44, 180, 182, 217, 243 Northern Ireland, 10, 11, 13, 27, 44, 151–2; Legislative Assembly, 32 Papua New Guinea, 187 peacebuilding, 4, 10, 34, 212, 218, 225, 293–4, 300–1 peacemaking, 26, 293 poverty, 88, 178, 247 rapprochement, 12 reconciliation, 29, 34, 36, 72, 88, 93, 95, 100, 107, 117, 119, 121, 147, 150, 169, 175, 178, 181, 182, 191, 192, 197, 208, 209, 211, 214, 218, 220, 222, 225, 233–4, 238, 246, 264–6, 273, 279, 288, 302, 305; definition, 4, 5, 12, 141, 181–3, 236–7, 264, 286–90, 291, 295, 297, 301; levels, 5, 31, 149, 209, 222–5, 266, 272, 289, 295; nature, 5, 34, 95, 119, 141, 197, 208, 222 reconstruction, 2, 6, 88, 117, 118, 140, 142, 183, 152, 255, 275, 292, 293–4 repentance, 7, 8, 9, 29, 31, 34, 246, 287 Report of the Secretary General on the Rule of Law and Transitional Justice in Conflict and PostConflict Societies, 13, 86, 87 restitution, 31, 43, 65, 99, 188, 287, 292. See also compensation

23144_GB.book Page 313 Monday, February 9, 2009 11:46 AM

Index

restoration, 12, 17, 20, 25, 31, 47, 181, 183, 188, 191, 214, 292 restorative justice, 31, 97, 98, 214, 290 revisionism, 179 righteousness, 8, 19, 22, 24, 25, 43 Rwanda, 86–107, 188. See also ictr Schwarz-Schilling, Christian, 212, 213 Sierra Leone, 44, 86, 188 social capital, 183–4, 264 social cohesion, 5, 7, 10, 183–4, 243 South Africa, 11, 31, 32, 37, 44, 188, 226; Truth and Reconciliation Commission, 4–5, 31–2, 86, 98, 194 testimony, 23, 71, 80, 123, 124, 126, 130, 138, 139, 140, 233 traditional mechanisms, 3, 10, 86– 7, 89, 91, 175, 186–91; abakuru b’emiryango, 189; akiriket (see also Uganda), 188; conselho (see also Angola), 187; customary law, 86; gacaca (see also Rwanda), 86–107, 188; gomo tong (see also Uganda), 188; Inkundla (see also South Africa), 188; kitewuliza (see also Uganda), 188; legal pluralism, 89–91; mato oput (see also Uganda), 86, 188; nyoyo tong gweno (see also Uganda), 188. See also alternative mechanisms transformation, 3, 4, 8, 10, 11, 32, 97, 105, 148, 167, 240–1, 247, 265–6, 287, 292, 302, 304

313

transitional justice, 3, 4, 5, 12, 49, 53, 76, 86, 87, 89, 98, 102, 106, 117, 174, 219, 232, 289–90, 301 trust, 5, 10, 19, 24, 25, 34, 40, 44, 46, 48, 49, 50, 127, 135, 138, 140, 178, 181, 289 truth, 4, 7, 10, 32, 33, 34, 88, 93, 94, 117, 119–21, 135, 140–1, 179, 213, 215, 288, 289, 292; truth-telling, 34, 123–7, 130, 140, 181, 290; unofficial truthtelling, 130–1, 140 truth commission, 6, 48, 98, 117, 119, 120–1, 133–5, 137, 138, 139, 140, 175, 184–6, 211, 213, 232, 266, 289, 299; Guatemala (Comisión para el Esclarecimiento Histórico), 9, 118, 119, 123, 129– 30, 135, 137; Guatemala (Recuperación de la Memoria Histórico), 118, 129, 130, 132, 139; Morocco (Instance Équité et Réconciliation), 53, 64–77; South Africa (Truth and Reconciliation Commission), 4–5, 31–2, 86, 98, 194; Uganda (Commission of Inquiry into Violations of Human Rights), 10, 184–6, 196 Tutu, Desmond, 31–2 ubuntu, 98, 256 Uganda, 10, 174–97; Amnesty Commission, 177; Lord’s Resistance Army, 176. See also traditional mechanisms; truth commission, Commission of Inquiry into Violations of Human Rights vindication, 40–2, 48, 50