Famous Czechoslovakian writer and harsh critic of totalitarian regime in his country after the Second World War, Milan Kundera once said that struggle for human rights is struggle for humanity, set against abuse of governmental power, that it is a struggle for remembrance and against oblivion.1 In this paper firstly, I will reflect on transitional justice, what it represents, its core principles and secondly, how it is connected to building and obtaining honest reconciliation in post-conflict region.
According to Mark Freeman2, transitional justice is focused on “challenges of the transitional societies- whether they are transitioning from war to peace or from authoritarian to democratic society- how they cope with the heritage of mass violation of human rights.”3 Even though their roots can be found in Nurnberg trials it is portrayed as becoming relevant law doctrine in post cold War period. In 1988. Velasquez- Rodriguez vs. Honduras ruling laid basis for the field in which transitional justice started to operate and draw its main principles. This ruling, which was confirmed later by the European Court for Human Right and various UN documents, had established five basic obligations for every country in the world. These obligations are: taking steps in preventing human right violation and conducting an investigation in cases if the violation had occurred, identifying the victims and perpetrators of those crimes, determining adequate penalties for those responsible and providing reparations for victims. Basically, these obligations are implemented through four main mechanisms: criminal prosecution for the most horrific crimes- genocide, crimes against humanity and war crimes, “truth commissions”, reparations for the victims and “vetting” programs.
Given that criminal prosecution of generals, paramilitary and military officials, specifically those who had committed crimes against other ethnic groups in civil wars, is very hard to conduct in their own country, usually due to lack of political willingness and consciousness; almost all of the courts were established in some neutral third country dealing with specific countries and regions like Ruanda, Former Yugoslavia, Sierra Leone, East Timor; also because some of the courts began their work while the conflict was still going on- International Court Tribunal For Former Yugoslavia in Hague was established in 1993/4. Still sooner or later in case of FRY, every new country formed their own special court and Office of war crimes prosecutor.
Truth commissions are temporary, usually state-funded non legal mechanisms of transitional justice. Main focus is on the victims and their suffering, what they have been through which can have great social and psychological effect on the whole public. They are founded in order to investigate and to report on massive human right violations told by their victims and their families. First successful truth commission was held in Argentine in 1983. It was founded by Raul Alfonsin, Argentinean newly elected president, who immediately distanced himself from military junta and Peron’s populist party. The head of commission was famous Argentinean writer Ernesto Sabato, in less than one year they presented to the public National Commission report: they have discovered around 350 concentration camps with political dissidents, members of armed guerilla but also a lot of civilians -priests, lawyers, professors etc. Also, South African truth and reconciliation commission is well known for its public, nationally broadcasted hearings that were important bearers of national catharsis.
Reparations as a mechanism of transitional justice represent extrajudicial methods indented at repairing financial and moral consequences of war. That compensation often includes material support to victims and their families followed by privileged or special access to public or private services like social security, healthcare, pensions etc. Beside financial support there is symbolic reparation which can be more efficient and more needed such as memorial centers that are honoring the victims and are a constant reminder of committed crimes.
The last mechanism according to Mark Freeman is “vetting “program; it aims at educating, accomplishing sensitization and training of public workers in post totalitarian regimes in order for them to become from instrument of oppression to instruments of integrity and honorable public administration.
In order for us to have a brighter future we must build morally responsible present. It is important to recognize transitional justice as a set of principles but also as an action plan, a strategy. That action plan is consisted of these merits4: Truth, Justice, Reparations, Democracy, Rule of Law, Economic growth and prosperity, Peace and finally Reconciliation.
In 1988. at the conference marking 40 years of signing Universal Declaration Of Human Rights Mary Burton, activist and patroness of Human Rights League remembered an Uruguayan priest who was telling a story about a women in Uruguay whose child had been abducted probably by governmental forces. She said : “Father, I am ready to forgive, but I need to know to whom and what I am forgiving”5 Without finding out the truth, what had happened, who had done it, the injustice that was done to victims and their families will only get bigger, it should be our duty to demand the truth . The next step would be finding and persecuting those responsible for crimes. This is also essential and closely connected to latter. If we all know what had happened but do nothing to find and persecute those who are responsible, we are continuing with oppression, in some way committing crimes ourselves. Symbolic reparations- memorial centers, commemorations, public apology to victims by highest ranking politicians- can help face us with the past and with the things that were done in our names, but more importantly it can show to the victims that we feel their pain, that it is important to remember our crimes so as not to repeat them ever again. Self evidently, Democracy, Rule of Law, Peace and Economic Development are institutional and political framework and foundation for these steps to happen. Or as Albie Sachs had said: “The true reparation that we seek is directly tied with constitution, voting, dignity, land, employment and education. If we are provided with it, and if during this period we see decent step forward to creating a nation and truly respecting common human dignity in this country, I think that the pressure directed to persecution, punishing and truth commissions will decrease.”6
There is a saying here:” One cannot build the house starting with the roof”. We can’t expect to move forward as a community, if we are not cooperating with our neighbors. We can’t productively cooperate with them if there are misunderstandings, if we don’t know or don’t want to know the whole truth about crimes, if one side sees another as aggressor who didn’t persecute, who had done nothing to repair the damage caused by its war criminals, If there is no free speech in our community, no free elections, no rule of law, if there is no social or economic security and progress. Whatever the circumstances, after we had blamed our politicians for terrible choices and political moves, we must not forget to ask ourselves- where were we when that happened? Who had chosen those politicians? So in that way people who had supported those who made terrible choices and did almost nothing to stop it, have responsibility to acknowledge it, and we as a future generation, who grew up in that horrific times have responsibility to know the truth and to say ‘never again’. We can’t impose reconciliation upon victims, we can’t demand it from them, we must only work our way, according to this “action plan” for achieving transitional justice as a universal merit for dealing and repairing the damages caused by wars and massive human rights violations.
Bibliography:
1. Alex Boraine, Janet Levy, Ronel Scheffer:“Dealing with the past-Truth and reconciliation in South Africa” Samizdat FreeB92, 1999;
2. Mark Freeman: What is Transitional Justice?, Journal for Transitional Justice, Humanitarian Law Center, 2007;
