How can traditional justice mechanisms and processes be applied in the context of large-scale human rights abuses and mass killings? The International IDEA report Traditional Justice and Reconciliation after Violent Conflict – Learning from African Experiences, just released in French, presents the findings of a major comparative study of the role played by traditional mechanisms in dealing with the legacy of violent conflict across the continent.
Prompted by the Rwandan experiment with using gacaca, a ‘modernized’ approach to an indigenous form of dispute settlement developed and applied in the aftermath of the 1994 genocide, international attention to the potential role of traditional mechanisms in reconciliation and transitional justice strategies has increased. However, to date there have been few if any systematic attempts to analyse and assess the role and impact of traditional mechanisms in post-conflict settings.
The International IDEA report aims to address this gap by examining the role played by traditional justice mechanisms in dealing with the legacy of violent conflict in five African countries – Rwanda, Mozambique, Uganda, Sierra Leone, and Burundi. (An additional study of Liberia is also available.) The case studies are used as the basis for outlining conclusions and options for future policy in the related areas of post-conflict reconstruction, democracy building and development.
“Traditional justice is not an alternative to international humanitarian law, but it can provide a very important additional resource for the promotion of peace and justice throughout the African Continent,” said International IDEA’s Secretary-General Vidar Helgesen at the launch of the English edition of the report last year.
A key issue addressed in the report relates to the strengths and weaknesses of differing approaches to the pursuit of justice in the aftermath of conflict. On the one hand there is the classical-legal retributive approach, focusing on the identification and punishment of individual criminal offenders. In terms of international justice this approach is exemplified in the operations of the International Criminal Court (ICC) established under the 1998 Rome Statute that has so far been ratified by 110 countries. In March this year for example, the ICC confirmed the indictment it issued in July 2008 against Sudan’s sitting President Al-Bashir on charges of bearing individual criminal responsibility both for ‘crimes against humanity’ and war crimes committed in Darfur since 2003.
On the other hand there are approaches underpinned by ideas of ‘restorative justice’. Here the focus is on victims as well as perpetrators, healing and rehabilitation rather than straight punishment and – within communities directly affected by conflict – the social imperative of (re)establishing functioning inter-communal relations. The IDEA report finds that in addition to being highly participatory, the approach to justice underpinning tradition-based mechanisms is usually restorative, emphasizing how relationships within communities that have been badly damaged by conflict can be repaired, and offenders reintegrated into society.
At the same time the IDEA report does not attempt to romanticize or otherwise overplay the role of traditional justice mechanisms (TJMs) in addressing a legacy of conflict. The concluding section for example, highlights some important weaknesses of TJMs evidenced in the country case studies considered. Weaknesses identified include the fact that traditional structures are all too often dominated by elderly male elites, thereby excluding youth, women and broader sections of the population. In addition, TJMs are typically designed and intended to deal with relatively small numbers of individual offences, not the mass crimes and large-scale violence that all too often characterize contemporary conflicts around the African continent.
Why did International IDEA produce a report on this subject?
“IDEA emphasises the importance of democracy being home-grown and rooted in the institutions, culture, values and norms of a country – ultimately, that’s what makes it sustainable.” says IDEA’s Mark Salter, one of the report’s editors. “What we are looking at in the report is a particular aspect of this broader agenda, namely its post-conflict justice related dimension. Specifically, we are suggesting that tradition-based institutions have an important role to play in overall approaches to delivering justice in many post-conflict societies. In broader terms this finding underlines the potentially critical role of tradition-based institutions and processes in the design and implementation of sustainable and effective democracy building processes.”
Whose justice?
However, the broader underlying question remains: whose justice are we dealing with, and in what way?
In the case of Sudan for example, while few would seriously question President Al-Bashir’s alleged role in atrocities committed in Darfur, there none the less appear to be a growing number of voices – particularly from within Africa – questioning if the ICC is the right instrument for promoting justice or pursuing accountability in the context of a country that has only recently emerged from a bloody and protracted civil war.
“In Sudan we are seeing an implicit questioning of the traditional western punitive approach to justice written large on the international stage, and at the same time a search for alternative approaches,” says Salter. “In this context I think what our report is trying to do is simply to suggest that it’s worth looking more closely at the role that indigenous mechanisms and practices may have to play in the pursuit of peace and justice.”
The ICC has been criticized both for what is perceived by some as its partiality – why are only African conflicts dealt with to date, what about Middle East and Iraq? – and with respect to its legitimacy. Should an international court be empowered to pass judgement on issues that fundamentally pertain to the legal jurisdiction of sovereign national governments?
Addressing this issue at the launch of the English edition of the IDEA report, Ms Fatou Bensouda, ICC Deputy Prosecutor of the ICC, stated: “The ICC functions differently from national criminal courts in a number of important respects: the most important of these is that it is complementary to national criminal jurisdictions. In other words, the Court can only intervene where the relevant national system has been unwilling or unable to investigate or prosecute . . . the primary responsibility to investigate and prosecute lies with states.”
French edition
As well as recently publishing a French version of the report, International IDEA has also reprinted the English edition. “What’s been very striking is the high level of demand for and interest in this report, which is something for which I don’t think any of us was prepared. What I think this reflects is a genuine and growing international interest in the role of indigenous local mechanisms of justice in peacebuilding contexts,” says Salter. Reasons for producing a French edition are twofold. First, two of the country case studies covered in the report – Burundi and Rwanda – lie broadly within the Francophone region of Africa. Second there are a number of other Francophone African countries – Ivory Coast and the DRC for example – currently undergoing post-conflict transition processes, the need to develop appropriate transitional justice and reconciliation measures included. The hope is that the IDEA report will provide a useful tool for those working on these issues in these and other post-conflict francophone African contexts
A number of launch activities are currently in prospect for the French edition. First, the report is due to be presented mid-December in Bujumbura in the context of a meeting of the Burundian Assemblée Nationale to consider a new national transitional justice strategy. Second, within the framework of the current IDEA-African Union (AU) Joint Action Plan for democracy, there are plans to organize a consultation on the report’s key findings and recommendations.
“The AU have asked us to jointly organize an activity that will serve to disseminate the findings of the report to AU staff working in different post-conflict contexts around the continent,” notes Salter.
Third, a regional West African launch of the report is planned for early 2010, most probably in Senegal.
To place an order or to download the new publication (free of charge) visit: www.idea.int/publications
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