DIALOGUES-Second Critical Studies Conference-Transitional Justice

Abstract

Nature, dynamics and root causes of violence in conflict have changed in Africa since the 1990s. Conflict scenarios have become increasingly complex, no longer pitting against one another identifiable standing armies answering a clear chain of command, but often involving riff-raff military outfits knitted together and torn apart in a merry-go-round of coalitions. Intra-state conflict in failing or failed states has become the deadliest variant of violence, particularly in sub-Saharan Africa, affecting combatants and civilians indiscriminately and destroying the socio-economic fabric of whole regions. Protection of civilians is not to be had from casualty averse outside forces shoved aside by armies on the attack, like in Bosnia- Herzegovina, or badly hurt and humiliated by militia groups, like in Somalia. The traditional pillars of UN peacekeeping—consent, neutrality, impartiality and the limitation of the use of force to self-defense—proved hollow and gave way under the weight of the genocide in Rwanda (1994) and the massacres of Srebrenica and Zepa in Bosnia (1995). The blue flag, hoisted to give hope for peace, was left fluttering in disgrace.
The unthinkable happened in Rwanda in spite of the legal framework provided in the Genocide Convention (1948). The failure of the international community to stop the genocide in Rwanda gave cause to a rethink of strategies to prevent human rights violations of a massive scale. There is emerging consensus that states have a “responsibility to protect”. Thinking of sovereignty as a responsibility implies that the state and its agents are responsible for and accountable to their citizens. At the same time, the international community at large has a duty to protect people who are put or left in harm’s way by their state. After the 1994 genocide, the remnants of the Hutu dominated Rwandan army, defeated by now Rwandan President Kagame, fled to the mineral rich Eastern parts of the Congo. Estimated at 6,000-10,000 personnel, they are exerting effective control, and run a parallel administration over, significant portions of the provinces of North and South Kivu. The civilian population in the affected areas suffers from extortion, indiscriminate killings and gender violence at the hands of the rebels. Massacres are perpetrated on a regular basis to intimidate the population and humiliate the Congolese armed forces who are shown to be unable to stop the well trained and equipped militia outfits. With UN peacekeeping forces lacking the troops and the mandate, a military solution is not in sight. International human rights groups insist that elements of the militias implicated in war crimes be prosecuted before domestic or international courts. But the local population fears that such a course of action will only entrench the militias in their positions rather than inducing them to give up arms and return to Rwanda.
New democracies emerging from periods of massive and systematic violations of human rights are often unable, for a combination of practical and political reasons, to prosecute all those responsible for human rights abuses. The justice system is often overwhelmed with the task of handling an onslaught of criminal cases. It is also the case that political crimes committed by highly skilled and well connected operatives are difficult to prosecute. In such scenarios, the United Nations has responded by creating “ad hoc” international tribunals for war crimes and other atrocities in the former Yugoslavia and Rwanda. In addition, “mixed” international-national courts have been set up in East Timor and Sierra Leone. While ad hoc tribunals are proving invaluable in bringing to justice war criminals who might not otherwise be punished, they are limited in reach and scope, costly, slow to produce results and susceptible to allegations of being politically motivated. The International Criminal Court (ICC) has been called into being to ensure that genocide, war crimes and crimes against humanity will be prosecuted if and when prosecution at the domestic level is not feasible due to a lack of capability and/or political will. But the ICC has also been accused of imposing First World values and notions of justice on Third World countries; undermining national sovereignty and proving blind to damage being done to peace efforts at the local level.
The militants of the Lord Resistance Army (LRA), under the leadership of Joseph Kony, have been fighting for some twenty years “to install the Ten Commandments” in Uganda, wreaking havoc among the local population of Northern Uganda and leaving death and destruction in their wake. The government of Uganda referred the situation of the LRA to the prosecutor of the ICC, who, in turn, issued an indictment against Kony on evidence of mass murder, rape, mutilation and abduction, particularly of women and children. The indictment, applauded by some as a “litmus test” of “global justice”, was strongly opposed by local peace groups who fear that the civil war would be prolonged if the LRA was pushed into a corner rather than lured into a ceasefire by being awarded a peace dividend. The indictment also ran counter to the cosmology of the Acholi people in Northern Uganda who believe that once traditional authorities have handed the “sticks of making fire” to a warrior—as some claim has happened with Kony—they have to be solemnly retrieved for lasting peace to prevail. It is impossible to imagine how such a symbolic act could be executed if Kony were to be arrested, shipped to Europe and locked up in the high-security tract of a detention facility in The Hague. The juxtaposition of global justice and local cosmology adds to the complexity of post-conflict scenarios where life is cheap, peace is a commodity for barter and prosecution is no panacea.
Proponents of transitional justice schemes argue that ways of dealing with the past must not become narrowly focused on attempts to prosecute. Rather, more expansive and creative strategies should be considered and employed in order to address the rights of victims and the needs of society as a whole. Truth and reconciliation commissions may play a crucial role in forging reconciliation, fostering mutual understanding and providing assistance to victims. Critics, however, claim that the logic of tell-and-forgive does not work as deterrence to future human rights violations and, instead of healing wounds, may further alienate the victims’ families from the society at large. Moreover, truth and reconciliation schemes are unhelpful to promote more comprehensive forms of justice, such as the redistribution of resources and reversal of discrimination patterns. Referring to social inequalities in South Africa, one researcher qualified the finding that half of the households in that country are living below the poverty line as “interesting and important, but not very helpful” in devising a policy; however, knowing further that the proportions of black and white households without access to electricity are 63 and 0.2 percent, respectively, reveals a reality about which, so the author, “one can begin to think very creatively”. Structural violence begs for structural reform. If rectifying the wrongs in society requires greater access to justice what then is the message of substituting legal remedies for truth telling exercises?
Another layer of justice is woven into the fabric of development cooperation and debt forgiveness. Conflict resolution and prevention in Africa will not be feasible without a sound economic and social recovery. Most of sub-Saharan Africa is too poor to achieve robust economic growth with any combination of privatization and market liberalization strategies prescribed by the Washington Consensus. On present trends, by 2030 the share of people living on under one dollar a day will halve in South and East Asia from today’s 60 percent while it will rise in Africa from 30 percent to 55 percent. What is needed for tropical Africa to be able to achieve the UN Millennium Development Goals is for foreign donors to provide a “big push” in public investment. But will it be possible to garner support from Northern countries for long-term capacity-building strategies in the “heart of darkness”?

Bibliography

Akhavan, Payam, The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the International Criminal Court, American Journal of International Law, Volume 99, No. 2 (April 2005), pp. 403-421

Finnstroem, Sverker, Wars of the Past and War in the Present: The Lord Resistance Movement / Army in Uganda, Africa (Journal of the International African Institute), Volume 76, No. 2 (2006), pp. 200-219

International Commission on Intervention and State Sovereignty (chaired by Gareth Evans and Mohamed Sahnoun), The Responsibility to Protect (Ottawa: International Development Research Center, 2001)

Kirsch, Philippe, Holmes, John T. and Johnson, Mora, International Tribunals and Courts, in David M. Malone (ed.), The UN Security Council: From the Cold War to the 21st Century Boulder and London: Lynne Rienner Publishers, 2004), pp. 281-294

Mc Greal, Chris, Search for peace in Africa throws world court into crisis, The Guardian Weekly, January 12-18, 2007, p. 1

Melvern, Linda, A People Betrayed: The Role of the West in Rwanda’s Genocide (London and New York: Zed Books, 2000)

Pahuja, Sundhya, The Postcoloniality of International Law, Harvard International Law Journal, Volume 46, No.2 (summer 2005), pp. 459-469

Slaughter, Anne-Marie, The Real New World Order, Foreign Affairs, Volume 76, No. 5 (Sept./Oct. 1997), pp. 183-197
Traub, James, The Congo Case, The New York Times Magazine, July 3, 2005

Tull, Denis M. and Mehler, Andreas: The Hidden Costs of Power-Sharing: Reproducing Insurgent Violence in Africa, African Affairs (The Journal of the Royal African Society), Volume 104, No. 416 (July 2005), pp. 375-398
Wilson, Francis, South Africa: Poverty Under Duress, in Else Øyen, S.M. Miller and Syed Abdus Samad (eds.), Poverty: A Global Review (Jaipur and New Delhi: Rawat Publications, 2003)

Wolters, Stephanie, Continuing Instability in the Kivus: Testing the Democratic Republic of Congo’s Transition to the Limit, Paper Series of the Institute for Security Studies (South Africa), paper No. 94 (October 2004)

Bionote 

Patrick Hoenig is currently visiting professor at the Academy of Third World Studies, Jamia Millia Islamia, New Delhi.  Previously, he served as a Political Affairs Officer in the UN Mission of the Congo and in the Security Council Affairs Division at UN Headquarters.  Prior to that he was a consultant to the International Refugee Program of the New York based Lawyers Committee for Human Rights.  He studied law in Cologne, Paris and New York and holds a Ph.D. from Cologne University and an LL.M degree from Columbia University School of Law.  His research interests include peace and security, human rights law and international dispute settlement.

Abstract

The inequity has very different forms & shapes in any given society. Anthropologically speaking, inequity has diverse socio-cultural politico-economic shapes. This paper will try to analyze the underlying gender, socio-cultural & politico-economic determinants of disparities, & social injustices with special focus on the poor outcomes of health status.
Pakistan is a multi-cultural territory in South Asia, in which different ethnic groups live in their own life styles. The state of Pakistani society is deplorable in terms of poverty indicators, women’s empowerment & status & human rights violations.
The concept of Equity has widely been recognized in the global & national community development agendas. The social definitions research framework of health is now put into practice for addressing the poor health outcomes between countries, regions & disadvantaged communities. In the same way, AKU Equity Team applied the concept of “Equity in Health” by conducting participatory research at two field sties, one rural & urban in Sindh. In the equity Analysis phase, male & female groups of the villages identified disparities & inequities in Health. On the basis of health disparities of the villages/blocks, Equity Team organized a Priority Setting Workshops, in which, communities identified major priorities of area.
The Equity work at two sites aimed to explore & identify the multifaceted disparities & inequities at different social-cultural, politico-economic & gender levels. Besides, after identifying the underlying health disparities by communities, these were to be addressed in the Annual Development District Plans. In the second phase, advocacy meetings at community level were organized so as to address the development priorities of the area.
The study showed purposeful results in terms of identifying health disparities & priorities from community’s point of view. During Equity Analysis phase, community groups voiced their first-hand experiences about the disparities embedded in the health system, inequitable distribution of resources, social mobility, health seeking behavior, delayed treatment, poverty & gender biases.
This paper will highlight the approach of equity analysis by communities which is usually a neglected research area at macro policy & planning level in Pakistan.

Bionote

Rafique did his Masters in Anthropology from Quaid-i-Azam University, Islamabad. As part of my M.Sc anthropology research work, he conducted an ethnographic study on socially marginalized Folk Musician Community of Umerkot, Sindh. After having my Masters he joined Community Development sector and continued my career as a Participatory Development Researcher. He has been involved in the community development activities and initiatives and poverty issues at gross root level. In addition, he has been involved in writing up articles on the socio-economic problems of Sindh in Sindhi regional daily newspapers. Currently, he is working as Research Associate at The Aga Khan University, Karachi, Pakistan. The interest areas of research include Equity and Social Justice in Health, Women’s Empowerment, Community Development and Participatory Research, Displacement Issues and Indigenous Rights.