Transitional Justice in Comparative Perspective: Preconditions for Success (Memory Politics and Transitional Justice) 3030349160, 9783030349165

Table of contents :
Acknowledgements
About the Book/Conference
Contents
Notes on Contributors
List of Figures
List of Tables
Chapter 1: Changing the Context: Can Conditions Be Created That Are More Conducive to Transitional Justice Success?
What Is Transitional Justice?
Transitional Justice Mechanisms
Context, Conditions, and Challenges
Methodology
Authors
Chapters
Bibliography
Chapter 2: Tractionless Transitional Justice in Uganda: The Potential for Thin Sympathetic Interventions as Ameliorating Factor
Thin Sympathetic Engagement
Ameliorating Factors
History of Conflict and Division in Uganda
Transitional Justice Efforts in Uganda
Nascent Thin Sympathy in Uganda
Conclusions
Bibliography
Interviews by Author
Chapter 3: The Role of Democratic Uncertainty in the Interplay Between Transitional Justice and Democratisation
Uncertainty in the Democratisation Literature
Differing Interpretations of Uncertainty
Flaws in Existing Interpretations
Rehabilitating Democratic Uncertainty
Democratic Uncertainty as an Ameliorating Factor
Conclusion
Bibliography
Chapter 4: The Importance of Modifying the Context Before Introducing Amnesty and Prosecutions: The Case of Lebanon
Lebanon and Transitional Justice After the Civil War
Lebanon: Challenging Context and Necessary Ameliorating Factors
The Importance of a Balanced Law as an Ameliorating Factor
The Importance of Reforming The National Courts
Conclusion
Bibliography
Chapter 5: Victims of Language: Language as a Pre-condition of Transitional Justice in Colombia’s Peace Agreement
Introduction
Data and Methodology
The Mentions of Victims During the Negotiations
The Victims’ Moment
The Language of the Comprehensive System of Transitional Justice
Expanding the Description of “Victims”
Conclusions
Bibliography
Chapter 6: Transitional Justice in the Wake of Resource Wars
DR Congo
Sierra Leone
Truths and Economies
Disarmament, Microcredit and Truth-Telling
Conclusion
Bibliography
Chapter 7: “Some Reasons Are Obvious, Some Are Not.” The Gambian Experience with Transitional Justice
Background: When Jammeh Lost His Marbles
Conditions for Justice in the Gambia
A ‘Clean’ Transition
The “Right” People in Place
Commitment to and Appetite for Justice
Victims Beyond the Gambia
A Convenient “Bad Guy”
Challenges and Conditions
Judicial (In)Capacity
Intersection with Other Priorities
Sequencing Justice and Accountability
“Show Me the Money”
From Truth to Justice? Gambia’s Truth, Reconciliation and Reparations Commission
Conclusion—Preparing the Ground
Bibliography
Interviews and Consultations by the Author
Chapter 8: Institutional Trustworthiness, Transformative Judicial Education and Transitional Justice: A Palestinian Experience
Trust, Distrust, Institutional Trustworthiness and Transitional Justice
The Importance of Judicial Institutional Trustworthiness in Transitional Justice
The Future Is Built on Remnants of the Past: Judicial Education as an Ameliorating Factor
Building Institutional Trustworthiness Through Judicial Education: The Karamah/Palestine Model
Karamah’s Pedagogy: Dignity as Threshold Concept
Dignity as Integrity: Shared Political Values
Dignity as Benevolence: Professional Identity
Sustainability of Judicial Education
Conclusion
Bibliography
Interviews by Houda Rouhana (Karamah staff member)
Chapter 9: Moving Forward: The Possibilities That Obtain from Ameliorating the Context to Create Conditions for Success
Ameliorating Factors
Attitudinal Change
Changing Hearts and Minds
Democratic Uncertainty
Institutional Change
The Language Used in Peace Agreements and the Law Itself
Judicial Education and Reform
Economic Dimensions: Assets, Income, Trade
Moving Forward
Bibliography
Index

Citation preview

MEMORY POLITICS AND TRANSITIONAL JUSTICE

Transitional Justice in Comparative Perspective Preconditions for Success Edited by Samar El-Masri Tammy Lambert · Joanna R. Quinn

Memory Politics and Transitional Justice Series Editors Jasna Dragovic-Soso Goldsmiths University of London London, UK Jelena Subotic Georgia State University Atlanta, GA, USA Tsveta Petrova Columbia University New York, NY, USA

The interdisciplinary fields of Memory Studies and Transitional Justice have largely developed in parallel to one another despite both focusing on efforts of societies to confront and (re-)appropriate their past. While scholars working on memory have come mostly from historical, literary, sociological, or anthropological traditions, transitional justice has attracted primarily scholarship from political science and the law. This series bridges this divide: it promotes work that combines a deep understanding of the contexts that have allowed for injustice to occur with an analysis of how legacies of such injustice in political and historical memory influence contemporary projects of redress, acknowledgment, or new cycles of denial. The titles in the series are of interest not only to academics and students but also practitioners in the related fields. The Memory Politics and Transitional Justice series promotes critical dialogue among different theoretical and methodological approaches and among scholarship on different regions. The editors welcome submissions from a variety of disciplines – including political science, history, sociology, anthropology, and cultural studies  – that confront critical questions at the intersection of memory politics and transitional justice in national, comparative, and global perspective. Memory Politics and Transitional Justice Book Series (Palgrave) Co-editors: Jasna Dragovic-Soso (Goldsmiths, University of London), Jelena Subotic (Georgia State University), Tsveta Petrova (Columbia University) Editorial Board: Paige Arthur, New York University Center on International Cooperation Alejandro Baer, University of Minnesota Orli Fridman, Singidunum University Belgrade Carol Gluck, Columbia University Katherine Hite, Vassar College Alexander Karn, Colgate University Jan Kubik, Rutgers University and School of Slavonic and East European Studies, University College London Bronwyn Leebaw, University of California, Riverside Jan-Werner Mueller, Princeton University Jeffrey Olick, University of Virginia Kathy Powers, University of New Mexico Joanna R. Quinn, Western University Jeremy Sarkin, University of South Africa Leslie Vinjamuri, School of Oriental and African Studies, University of London Sarah Wagner, George Washington University

More information about this series at http://www.palgrave.com/gp/series/14807

Samar El-Masri  •  Tammy Lambert Joanna R. Quinn Editors

Transitional Justice in Comparative Perspective Preconditions for Success

Editors Samar El-Masri The University of Western Ontario London, ON, Canada

Tammy Lambert The University of Western Ontario London, ON, Canada

Dalhousie University Halifax, NS, Canada Joanna R. Quinn The University of Western Ontario London, ON, Canada

Memory Politics and Transitional Justice ISBN 978-3-030-34916-5    ISBN 978-3-030-34917-2 (eBook) https://doi.org/10.1007/978-3-030-34917-2 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: © Joanna R. Quinn This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

This volume is dedicated to our friend and colleague Chandra Lekha Sriram, who passed away in the middle of this project. Her work informed so much of the field. She is missed.

Acknowledgements

Funding for the “pre-conditions” project was awarded by an Insight Grant from the Social Sciences and Humanities Council of Canada, by the Office of the Dean of the Faculty of Social Science at The University of Western Ontario, and by the Royal Society of Canada through the College Member Projects Fund.

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About the Book/Conference

The genesis for this collection of papers was a conference held in May 2018, and organised by the Centre for Transitional Justice and PostConflict Reconstruction at The University of Western Ontario. Participants were invited to consider whether and how certain kinds of activities and institutions could be put in place that would somehow undergird or shore up the transitional justice activities that are ultimately convoked at a later stage. The premise was that front-ending transitional justice processes with elements that somehow “cement” the transitional justice work will ultimately make it more successful, and it is critical to understand the role that ameliorating factors can play in such processes. The papers in this volume speak directly to that theme, and work together to advance our understanding of how transitional justice could work better.

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Contents

1 Changing the Context: Can Conditions Be Created That Are More Conducive to Transitional Justice Success?  1 Samar El-Masri, Tammy Lambert, and Joanna R. Quinn 2 Tractionless Transitional Justice in Uganda: The Potential for Thin Sympathetic Interventions as Ameliorating Factor 19 Joanna R. Quinn 3 The Role of Democratic Uncertainty in the Interplay Between Transitional Justice and Democratisation 49 Peter A. Ferguson 4 The Importance of Modifying the Context Before Introducing Amnesty and Prosecutions: The Case of Lebanon 73 Samar El-Masri 5 Victims of Language: Language as a Pre-­condition of Transitional Justice in Colombia’s Peace Agreement 97 Juan-Luis Suárez and Yadira Lizama-Mué 6 Transitional Justice in the Wake of Resource Wars129 Jim Freedman

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CONTENTS

7 “Some Reasons Are Obvious, Some Are Not.” The Gambian Experience with Transitional Justice149 Mark Kersten 8 Institutional Trustworthiness, Transformative Judicial Education and Transitional Justice: A Palestinian Experience185 Reem Bahdi and Mudar Kassis 9 Moving Forward: The Possibilities That Obtain from Ameliorating the Context to Create Conditions for Success217 Samar El-Masri, Tammy Lambert, and Joanna R. Quinn Index229

Notes on Contributors

Reem Bahdi  is an associate professor at the Faculty of Law, University of Windsor. Her research focuses on access to justice in Canada, especially as it relates to Arab and Muslim communities, and on access to justice and development in Palestine. She created and directed, along with Dr Mudar Kassis of Birzeit University (Palestine), the Karamah judicial education initiative. She has taught courses about access to justice, human dignity, torts, torture and national security, legal theory, and Arabs, Muslims and the law. Samar  El-Masri  is an adjunct professor in the Centre for Transitional Justice and Post-Conflict Reconstruction at The University of Western Ontario and in the Department of Graduate Studies at Dalhousie University. Her research has focused on the legality of prosecutions by the ICC in Darfur and by the Special Court for Lebanon in the case of Rafic Al Hariri’s assassination. She has also written on the appropriate legal routes that should be taken to prosecute ISIS for their sexual slavery of the Yazidis. Peter A. Ferguson  recently retired as a professor in the Department of Political Science at The University of Western Ontario. He undertook graduate training at Texas A&M University and was awarded a PhD from the University of British Columbia. Peter’s research concentrates on democratisation, in particular the failure of democratic regimes. As the Director of the Leadership and Democracy Lab (democracylab.uwo.ca), he continues to explore the ways business may mitigate political risks when operating abroad. xiii

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NOTES ON CONTRIBUTORS

Jim Freedman  taught development studies at The University of Western Ontario for 25 years before committing himself full time to his international consulting firm. The firm has worked extensively to devise economic remedies for inter- and intra-state conflict. He is the author or co-author of ten monographs, books, and edited volumes that include academic inquiries, non-fiction and historical fiction. His most recent book, published last year, is A Conviction in Question, the First Trial at the International Criminal Court. Mudar Kassis  is Associate Professor of Philosophy and Cultural Studies and Director of the Muwatin Institute for Democracy and Human Rights at Birzeit University in Palestine. Mudar does research in epistemology, law and society, social and political philosophy, democracy, and human rights. He founded and directed, with Professor Reem Bahdi, the Karamah judicial education initiative. Mark Kersten  is Deputy Director of the Wayamo Foundation and Fellow at the Munk School of Global Affairs at the University of Toronto. He is the founder of the blog Justice in Conflict and author of the book, Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace (OUP 2016).  He holds a PhD and an MSc in International Relations from the London School of Economics and a BA (Hons) in History from the University of Guelph. Tammy Lambert  is a PhD candidate in Political Science and Transitional Justice and Post-Conflict Reconstruction at The University of Western Ontario. Her research interests include commissions of inquiries and truth commissions, particularly the intersection between transitional justice and credibility in transitional societies. Yadira Lizama-Mué  is a PhD candidate in the Hispanic Studies Program at The University of Western Ontario and a research assistant at CulturePlex Lab. Her research interests are focused primarily on data science, artificial intelligence, network analysis, and statistical models to solve practical problems of Transitional Justice and Post-Conflict Reconstruction. She is a software engineer who graduated from the Universidad de las Ciencias Informáticas in Havana, Cuba, with ten years of experience in Digital Innovation and Digital Humanities.

  NOTES ON CONTRIBUTORS 

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Joanna R. Quinn  is Associate Professor of Political Science and Director of the Centre for Transitional Justice and Post-Conflict Reconstruction at The University of Western Ontario. Dr Quinn’s research considers the role of acknowledgement in overcoming the effects of conflict and abuse. She has written widely on the role of acknowledgement in truth commissions and in customary law in Uganda, Haiti, Canada, Fiji, Solomon Islands, and Canada. She was inducted to the College of New Scholars, Artists and Scientists of the Royal Society of Canada in 2015. Juan-Luis Suárez  is Director of the CulturePlex Lab at The University of Western Ontario, Canada, an interdisciplinary lab focused on digital innovation and cultural networks. He is the author of several books on Humanism and the Baroque, and the (co)author of over 80 articles on cultural analytics, digital humanities, network, among other themes. He holds a PhD in Philosophy from Salamanca, a PhD in Hispanic Literature from McGill, and an MBA from IE Business School.

List of Figures

Fig. 2.1 Fig. 5.1 Fig. 5.2 Fig. 5.3

Sympathy-empathy continuum, with thin sympathy highlighted 23 Number of publications per year 102 Number of occurrences of “victim(s)” in documents over the years 107 Most frequent words per section in the Comprehensive System of Truth, Justice, Reparations and Non-repetition113

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List of Tables

Table 3.1 Table 5.1 Table 5.2

Two views of the consequences of democratic uncertainty Number of documents published during the negotiations Documents with the most occurrences of “victim(s)”

62 101 107

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CHAPTER 1

Changing the Context: Can Conditions Be Created That Are More Conducive to Transitional Justice Success? Samar El-Masri, Tammy Lambert, and Joanna R. Quinn

The field of transitional justice has emerged as a complex response to post-­ conflict societies that are working to redress past injustices using a range of mechanisms, such as trials, truth commissions, and reparations. Despite normative and moral justifications for transitional justice, the literature tells us that many of the transitional justice measures that are put in place in the period following conflict and repression fall well short of their intended purpose.1 Societies that are in the waning stages of conflict and 1  David Mendeloff, “Truth-Seeking, Truth-Telling and Post-Conflict Peacebuilding: Curb the Enthusiasm?” International Studies Review 6, no. 3 (2004), 355–380; Simon Robins, “Towards Victim-Centred Transitional Justice: Understanding the Needs of Families of the

S. El-Masri (*) The University of Western Ontario, London, ON, Canada Dalhousie University, Halifax, NS, Canada T. Lambert • J. R. Quinn The University of Western Ontario, London, ON, Canada e-mail: [email protected]; [email protected] © The Author(s) 2020 S. El-Masri et al. (eds.), Transitional Justice in Comparative Perspective, Memory Politics and Transitional Justice, https://doi.org/10.1007/978-3-030-34917-2_1

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abuse often share a set of characteristics such as instability, division, institutional weakness, and distrust. The impact, of course, is that “moving forward”—or just moving, at all—is difficult and the outcomes of any kind of activity are uncertain, at best. This book explores whether any given context could be effectively changed to produce conditions that could be more conducive for transitional justice to succeed. This suggests that the dynamism of the stage preceding transitional justice be given more consideration. Indeed, the argument is that efforts to change the underlying context before transitional justice practices are established may increase the success of transitional justice itself. The transitional justice scholarship has recognised that context matters.2 While the early literature sought to demonstrate similarities across cases,3 the ensuing literature has clearly demonstrated that each case has its own particularities and that these are important in how transitional justice is carried out in each case. Elements like the distribution of power,4 ­cultural Disappeared in Postconflict Nepal,” International Journal of Transitional Justice 5, no. 1 (2011), 75–98; Jamie Rebecca Rowen, “‘We Don’t Believe in Transitional Justice’: Peace and the Politics of Legal Ideas in Colombia,” Law & Social Inquiry 42, no. 3 (2017), 622–647; Oskar Thoms, James Ron, and Roland Paris, “State-Level Effects of Transitional Justice: What Do We Know?” International Journal of Transitional Justice 4, no. 3 (2010), 329–354; Eric Wiebelhaus-Brahm, “Uncovering the Truth: Examining Truth Commission Success and Impact.” International Studies Perspective 8 (2007), 16–35. 2  See, for example, Laurel Fletcher and Harvey Weinstein with Jamie Rowen, “Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective,” Human Rights Quarterly 31, no. 1 (2009), 163–220; Martha Minow, Between Vengeance and Forgiveness (Boston: Beacon Press, 1998), 4; and Roger Duthie and Paul Seils, Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies (New York: International Center for Transitional Justice, 2017). Context has also been seen to matter in adjacent areas of study including, for example, security sector reform; see Nat J.  Colletta and Robert Muggah, “Context matters: interim stabilisation and second generation approaches to security promotion,” Conflict, Security & Development 9, no. 4 (2009), 425–453. 3  See, for example, Neil J. Kritz, “The Dilemmas of Transitional Justice,” in Transitional Justice: How Emerging Democracies Reckon with Former Regimes (Washington, DC: United States Institute of Peace, 1995); Jon Elster, Retribution and Reparation in the Transition to Democracy (Cambridge: Cambridge University Press, 2006). 4  Gonzalez Enriquez, Alexandra Barahona de Brito, and Aguilar Fernández, The Politics of Memory: Transitional Justice in Democratizing Societies (Oxford: Oxford University Press, 2001), 11. See also Leslie Vinjamuri and Jack Snyder, “Law and Politics in Transitional Justice,” Annual Review of Political Science 18, no. 1: 322; Mark Ensalaco, “Truth Commissions for Chile and El Salvador: A Report and Assessment,” Human Rights Quarterly 16, no. 4 (1994), 656–675; and Margaret Popkin and Naomi Roht-Arriaza, “Truth as

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applicability,5 political will,6 or institutional capacity,7 for example, have been shown to be variable across cases, and arguments are frequently made that their relative absence or presence has aided in the failure or success of the transitional justice that is ultimately established.

What Is Transitional Justice? Transitional justice is defined as “the range of judicial and non-judicial mechanisms dealing with a legacy of large-scale abuses of human rights and/or violations of international humanitarian law.”8 At its heart, transitional justice is about helping individuals and communities come to terms with a past that has involved authoritarianism, repression, civil war, or large-scale human rights abuses and atrocity. It has several goals. First is to “satisfy people’s needs both to know what happened and to establish a clear break with the past.”9 Second is to somehow institutionalise revenge and deter future wrongdoing.10 And third is to “remember” and “rectify” historical injustice.11 Justice: Investigatory Commissions in Latin America,” Law & Social Inquiry 20, no. 1 (1995), 79–116. 5  See, for example, Laurel E. Fletcher, Harvey M. Weinstein, and Jamie Rowen, “Context, Timing and Dynamics of Transitional Justice: A Historical Perspective,” Human Rights Quarterly 31, no. 1 (2009), 153–220; Gearoid Millar, “Between Western Theory and Local Practice: Cultural Impediments to Truth-Telling in Sierra Leone,” Conflict Resolution Quarterly 29, no. 2 (2011), 177–199; Rosalind Shaw, “Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone,” Special Report 130 (Washington, DC: United States Institutive of Peace, February 2005), 1–12; Rosalind Shaw, Lars Waldorf, and Pierre Hazan (eds.), Localizing Transitional Justice: Interventions and Priorities after Mass Violence (Stanford: Stanford University Press, 2010). 6  See, for example, Joanna R. Quinn, The Politics of Acknowledgement: Truth Commissions in Uganda and Haiti (Vancouver: UBC Press, 2010); and Phuong N.  Pham, Niamh Gibbons, and Patrick Vinck, “A framework for assessing political will in transitional justice contexts,” The International Journal of Human Rights 23, no. 6 (2019), 993–1009. 7  Kieran McEvoy, “Beyond Legalism: Towards a Thicker Understanding of Transitional Justice,” Journal of Law and Society 34, no. 4 (Dec. 2007), 411–440; and Roger Duthie, “Toward a Development-sensitive Approach to Transitional Justice,” International Journal of Transitional Justice 2, no. 3 (2008), 292–309. 8  Rachel Kerr and Eirin Mobekk, Peace and Justice (Malden, MA: Polity Press, 2007), 3. 9  Martha Minow, Between Vengeance and Forgiveness (Boston: Beacon Press, 1998), 3. 10  Trudy Govier “Chapter 1: Revenge and Retribution,” in Forgiveness and Revenge (New York: Routledge, 2002), 1–22. 11  Elster, Retribution and Reparation in the Transition to Democracy, 319–325.

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Transitional Justice Mechanisms There is by now a fairly standard set of transitional justice mechanisms that are routinely employed after conflict. The mechanisms that are used may include trials, truth commissions, amnesties, reparations (both material and symbolic), lustration, and informal/local/traditional practices—or a combination of these. Each is outlined below. Trials are a standard means of dealing with the perpetrators of crimes, of fighting impunity, and of promoting accountability. Trials have occurred at the national level, such as the case of Samir Geagea in Lebanon explored by El-Masri in Chap. 4, or others including the trials of the so-called NIA 9  in The Gambia explored by Kersten in Chap. 7. Sometimes, national trials work in a hybrid arrangement with the international system, which provides any number of supports including funding or technical assistance, as was the case with the Special Court for Sierra Leone (2002–2013), or the Extraordinary Chambers in the Courts of Cambodia (2003–present). Trials have also taken place at the international level alone, through the ad hoc tribunals established after the atrocities that occurred in the Former Yugoslavia and in Rwanda, respectively, through the International Criminal Tribunal for the Former Yugoslavia (1993–2017) and the International Criminal Tribunal for Rwanda (1995–present), modelled in part on the international tribunals that took place after the Second World War, the International Military Tribunal (1945–1946) in Germany and the International Military Tribunal for the Far East (1945–1948) in Japan. A permanent court, the International Criminal Court, was established in 2002 to hear cases that arise when states are either unwilling or unable to prosecute.12 Truth commissions are another means of coming to terms with the past. Truth commissions are bodies established to look at widespread human rights violations that took place during a specified period of time, on a temporary basis, by the state, often in conjunction with opposition forces and/or the involvement of the international community. Although the first truth commission was established in Uganda in 1974,13 truth commissions became significantly more mainstream in the years following the end of the Cold War.14 Clustered largely in Latin America and Africa  The Rome Statute of the International Criminal Court (1998), art. 17.  See Richard Carver, “Called to Account: How African Governments Investigate Human Rights Violations,” African Affairs 89, no. 356 (1990), 391–415. 14  See Priscilla Hayner, Unspeakable Truths, 2nd ed. (New York: Routledge, 2011). 12 13

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to start, truth commissions were seen as a way to gather information about past atrocity from a large number of people without getting bogged down in the formal requirements of the legal system; as a bonus, they were considered to cost far less and to deal with a much wider array of crimes. Truth commissions have been established in more than 40 countries, including Sierra Leone and the Democratic Republic of the Congo, as outlined by Freedman in Chap. 6, and in The Gambia, as detailed by Kersten in Chap. 7. Amnesties are another response to the restrictions of formal court processes and the complications that arise from punishment and sentencing, particularly in situations where the perpetrators are still visible in society and may still wield considerable power and influence. As Jeffery notes, “amnesties are instruments of politics.”15 By granting immunity from prosecution for perpetrators of past atrocity, it is understood that societies can move past what Minow calls “impediments to justice.”16 Amnesties are sometimes granted to those who are seen as having been most responsible, as with the amnesty passed by the Lebanese Parliament in 1991, as discussed by El-Masri in Chap. 4. In other cases, as in Uganda, amnesties have been granted to the rank-and-file members.17 In still other cases, as in South Africa, amnesty is granted in exchange for other information.18 In other cases, states award reparations as a remedy for the harm that has been suffered. These may be either material or symbolic; material reparations may take the form of restitution or compensation, while symbolic reparations may be given in the form of an apology. Roht-Arriaza notes that “states are obliged to provide remedies for violations, both as a matter of treaty law and as part of the general rules of state responsibility. Starting in 1989, the U.N. Human Rights Commission and its Sub-Commission … outline[d] restitution, rehabilitation, compensation and satisfaction as

15  Renée Jeffery, Amnesties, Accountability, and Human Rights (Philadelphia: University of Pennsylvania Press, 2014), 21. 16  Minow, Between Vengeance and Forgiveness, 16. 17  Lucy Hovil and Zachary 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, Feb. 2005). 18  Audrey R. Chapman and Hugo van der Merwe, eds., Truth and Reconciliation in South Africa: Did the TRC Deliver? (Philadelphia: University of Pennsylvania, 2008).

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interlinked but distinct obligations on states.”19 Minow, however, notes the “inevitable shortfall” of financial compensation but argues that “the return to a symbolic dimension seems crucial.”20 Reparations have been provided in a number of different cases, including to Indigenous people living in Canada who suffered significant physical and sexual abuse in state-mandated residential schools.21 Reparation can also be made by means of an apology. Apologies for past actions have been made by states in a number of cases, including an apology made by the government of Germany in 2004 for the genocide of the Herero people in what is now Namibia by the German army between 1904 and 1908.22 Lustration is another means that is often used to deal with the past. It involves the vetting of public officials, often resulting in “the mass disqualification of those associated with the abuses under the prior regime.”23 By purging those who may have been responsible from their influential jobs in the public sector, whether as public servants who approved materials used in genocide or as teachers who sought to inculcate students with an abhorrent ideology, it is hoped that the transitional government will also be able to eradicate the ideas and actions that led to the atrocity. Losing their jobs also punishes those who are deemed to be responsible. Lustration has been most famously utilised across Eastern Europe following the end of the Cold War, in places like the Czech Republic, Hungary, and Poland.24 The last category of mechanisms is sometimes called informal or local or traditional justice but comprises a series of customary practices carried out, as McEvoy and McGregor have argued, “below the gaze of formal

19  Naomi Roht-Arriaza, “Reparations Decisions and Dilemmas,” Hastings International and Comparative Law Review 27 (2003–2004), 157. 20  Minow, Between Vengeance and Forgiveness, 103. 21  United Nations Human Rights Council, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya: Addendum: The situation of indigenous peoples in Canada, United Nations General Assembly, 2014, A/HRC/27/52/Add.2, http://www.ohchr.org/ Documents/Issues/IPeoples/SR/A.HRC.27.52.Add.2-MissionCanada_AUV.pdf. 22  Rhoda E.  Howard-Hassmann, Reparations to Africa (Philadelphia: University of Pennsylvania Press, 2008), 100–102. 23  Eric Brahm, “Lustration,” Beyond Intractability (June 2004), https://www.beyondintractability.org/essay/lustration. 24  David Roman, Lustration and Transitional Justice: Personnel Systems in the Czech Republic, Hungary, and Poland (Philadelphia: University of Pennsylvania Press, 2011).

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institutions.”25 Borrows has defined such practices as those that are “developed through repetitive patterns of social interaction that are accepted as binding on those who participate in them.”26 As such, these practices rarely take the same shape or behave in the same ways in any two situations. Informal/local/traditional justice is normally instigated at the community level in places where state institutions are unwilling or unable to address the past, or where people find themselves unable to trust those institutions to do what they think should be done. Waldorf has argued that they have “greater legitimacy and capacity than devastated formal systems, and they promise local ownership, access, and efficiency.”27 They have continued to be used in many parts of Africa, Latin America, the South Pacific, Southeast Asia, Central Asia, and the Middle East, as well as in settler-colonial states like Australia, Canada, New Zealand, Northern Ireland, and the United States. Traditional justice was famously utilised in northern Uganda at the height of the conflict between the Lord’s Resistance Army and the Government of Uganda, initiated by a concerned group of local religious and cultural leaders who wanted to bring the conflict to an end and to meet the needs of their communities.28 The Secretary-General has been clear that the mixing of various approaches and strategies will ensure a successful transitional justice process.29 For example, in Sierra Leone, a Truth and Reconciliation Commission was undertaken simultaneously with the Special Court for Sierra Leone. In many Latin American countries like Chile and Argentina, transitional justice has unfolded sequentially through a series of different trials, truth commissions, and amnesties, among other processes. Significant research has been undertaken to demonstrate the interaction effects between the application of different practices of transitional

25  Kieran McEvoy and Lorna McGregor, eds., Transitional Justice from Below: Grassroots Activism and the Struggle for Change (Portland, OR: Hart Publishing, 2008), 2. 26  John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010), 51. 27  Lars Waldorf, “Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice,” Temple Law Review 79, no. 1 (2006), 3–4. 28  Joanna R. Quinn, “Comparing Formal and Informal Mechanisms in Uganda,” in Trials and Tribulations of International Prosecution, eds. Henry (Chip) Carey and Stacey Mitchell (Lanham, MD: Rowman and Littlefield, 2015), 239–254. 29  United Nations Secretary-General, Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict situations, 2011, S/2011/634.

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j­ ustice.30 The sequencing of mechanisms within one context has also been of significant interest.31

Context, Conditions, and Challenges The conditions that engender transitional justice as a response are frequently characterised by weak institutions, violence, and competing priorities making justice difficult to pursue. The challenges of these conditions are acknowledged in the transitional justice literature.32 The challenge for transitional justice is how mechanisms can work as intended in these contexts. The Secretary-General, for example, outlines a number of measures that can support the operation of transitional justice mechanisms including the establishment of the rule of law through strong justice institutions; respect for human rights; “inclusiveness of marginalised populations”; “properly resourced, planned, and managed” initiatives; and the “involvement of national actors”.33 These measures speak to the necessity of paying attention to how the context may be amended or adjusted to better support transitional justice mechanisms for success. How these measures are established though has not yet received sufficient attention. If that preexisting context is not amended prior to the establishment of transitional justice processes, transitional justice is less likely to work ­effectively— 30  See, for example, Tricia D.  Olsen, Leigh A.  Payne, Andrew G.  Reiter, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy (Washington, DC: USIP Press, 2010); and Hun Joon Kim and Kathryn Sikkink, “How Do Human Rights Prosecutions Improve Human Rights after Transition?” Interdisciplinary Journal of Human Rights Law 7, no. 1(2013), 69–90. 31  Laurel Fletcher and Harvey Weinstein with Jamie Rowen, “Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective,” Human Rights Quarterly 31, no. 1 (2009), 163–220. 32  For example: On judicial capacity and the “justice gap” see David Gray, “An ExcuseCentered Approach to Transitional Justice,” Fordham Law Review 74, no. 5 (April 2006), 2621–2694. Tricia D.  Olsen, Leigh A.  Payne, Andrew G.  Reiter, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy (Washington, DC: USIP Press, 2010), 15. On continued violence, see: Paul Gready and Simon Robins, “From Transitional to Transformative Justice: A New Agenda for Practice,” The International Journal of Transitional Justice 8 (2014), 348; Thomas Obel Hansen, “Transitional Justice: Toward a Differentiated Theory,” Oregon Review of International Law 13, no. 1 (2011), 1–53. See also Lydia Kemunto Bosire, “Overpromised, Underdelivered: Transitional Justice in SubSaharan Africa,” SUR: International Journal on Human Rights 5 (2006), 71–108. 33  United Nations Secretary-General, Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict situations.

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no matter how many of the conditions laid out by the Secretary-General and others are met. This volume explores a number of factors that are more conducive to meeting those conditions for success. In almost every instance, following the end of a civil war or the fall of a repressive regime, the impulse on the part of governments, donors, scholars, and practitioners is to immediately implement some process of transitional justice. Mechanisms are sometimes implemented regardless of the conditions that exist, and it is these conditions that are the focus of this volume. In making the case that the contexts can be conditioned to provide transitional justice mechanisms a stronger foothold, it is acknowledged that the transformation anticipated from transitional justice cannot be expected to precede it. Yet, adjusting elements of the context and transitional justice processes may strengthen these outcomes. A number of things could be done to make those mechanisms work better. This volume suggests that the post-conflict or post-authoritarian context can be ameliorated to create the conditions that will produce more robust and “sticky” transitional justice. In the chapters that follow, the authors suggest a number of different ways that context can be improved. These changes are ameliorating factors. There are two pathways by which these changes can be made, although both have the potential to inform and reshape the broader social ethos of a society, making it more conducive to transitional justice. First, at an attitudinal level, things like building a thin sympathetic response or building democratic certainty work to change the broader social ethos such that individuals and communities are more receptive to the transitional justice efforts that are eventually undertaken. Second, efforts can be undertaken at the institutional level through actions, programmes, and policies that are more directly related to the components of transitional justice. This category includes components like judicial education, legislative reform, or institutional reforms that will change the way people access justice. Our argument suggests that through these pathways, the post-war/post-authoritarian context itself could be changed to make it more receptive to transitional justice. This does not mean that other pathways are less important, or that all ameliorating factors can be categorised and itemised under a specific pathway. In fact, some aim to make a change at both levels simultaneously. For example, the deliberate use of language in peace agreements may call for institutional reform but also emphasise social reconciliation and transformation through emphasising the rights of victims, changing a school

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c­urriculum, or removing religious identification from an identification card, for example. It is also important to caution against any inclination to believe that if modified conditions are not in place, transitional justice processes will not “work.” Engaging with context might suggest that transitional justice is only accessible to those societies that are “ready” for it. This is not the case. Instead, this volume suggests that transitional justice is likely to work better if it is carried out after contextual adjustments are made. It is equally important that this volume not be read in a determinative frame. The intent of an investigation into an amelioration of context is not to prescribe or determine universal factors in design. Rather, the intent is to consider more seriously how these earlier conditions affect transitional justice outputs. The focus on earlier conditions correlates to the concept of sequencing in transitional justice.34 An exploration into efforts to alter existing conditions may help architects of transitional justice determine the timing or the sequencing of transitional justice processes in light of potential ameliorating factors. The order in which transitional justice mechanisms are implemented may be adjusted based on existing conditions. For example, sequencing decisions have been identified as a means to mitigate the apparent contradictions between amnesties and prosecutions35 but also between accountability models and power-sharing agreements.36 Sequencing is also implicated in decisions about the order in which transitional justice is attempted in light of other transitional considerations. Thus, sequencing matters for both the tangible, institutional changes like judicial education or microcredit schemes and the attitudinal changes like the development of thin sympathy or democratic certainty—since both offer the possibility of making transitional justice efforts more successful.

34  Laurel Fletcher and Harvey Weinstein with Jamie Rowen, “Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective,” Human Rights Quarterly 31, no. 1 (2009), 170. 35  See Tricia Olsen, Leigh Payne, Andrew G. Reiter, and Eric Wiebelhaus-Brahm, “When Truth Commissions Improve Human Rights,” International Journal of Transitional Justice 4, no. 3 (2010), 127–152. 36  In some instances transitional justice mechanisms may be  prioritised over peace agreements to limit spoilers and ensure a smoother transition, but in other times prioritising agreements may be necessary. Stef Vandeginste and Chandra Lekha Sriram, “Power Sharing and Transitional Justice: A Clash of Paradigms?” Global Governance 17, no. 4 (2011), 498–501.

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Methodology The cases of Colombia, the Democratic Republic of the Congo, The Gambia, Lebanon, Palestine, and Uganda were selected for this volume because they have all experienced a period of oppression, atrocity, or human rights violations. In many cases, peace agreements were negotiated (i.e. Colombia, the Democratic Republic of the Congo, Lebanon, Palestine, and Uganda) or the ouster of a dictator (i.e. The Gambia). In many of these cases, some form of transitional justice has followed. Two further factors were also considered in this selection. First, the case studies are located in different regions in the world (Africa, the Middle East, and South America) which allows us to reach a more general observation about the challenges that face transitional justice and whether there are specific mechanisms or institutions that may help jump-start transitional justice efforts. Second, the violence in each case was of different intensity: The Gambia, for example, did not experience a full-fledged civil war like Uganda, yet the horrors of Jammeh’s rule were so intense as to require a transitional justice mechanism, namely a truth commission, to deal with human rights violations that resulted. This book is composed of individual country case studies. The variety of cases presented here allows for a broad investigation into different contexts and the application of different measures to cement transitional justice processes. The aim is to extract common observations reached by our various authors for the purpose of reaching a more comprehensive perspective.

Authors The contributors to this volume are all scholars of transitional justice and post-conflict reconstruction, writ broadly. They come from the fields of Anthropology, Hispanic Studies, Law, and Political Science—a constellation that is hardly unique in the field. These are scholars with considerable depth in their respective cases: Quinn, for example, has been working on questions related to transitional justice in Uganda for 20  years, and El-Masri in Lebanon and Bahdi in Palestine over roughly the same period. Suárez and Kersten are newer, in some ways, to their respective cases of Colombia and The Gambia, yet they bring with them experience that has been shaped by their engagement in other cases and with other methodologies. Ferguson and Freedman have the benefit of having worked on a

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number of cases, both in small-N and large-N studies, on bigger questions pitched at a different level of inquiry. Collectively, this engagement affords the authors a wide scope with which to understand the implications of what they have witnessed in each case. A number of them, though, are also working on what has come to be called “applied scholarship.” Boyer defined this as the responsible application of knowledge to consequential problems.37 Freedman, for example, has worked on a number of applied policy projects and has served on two Expert Panels advising the Security Council on measures to restore stability to Iraq and to the Democratic Republic of the Congo. In Kersten’s work with the nonprofit Wayamo, he works to strengthen the rule of law and to promote international criminal justice. Bahdi works directly with programmes that increase access to justice in Palestine through Karamah, The Project on Judicial Independence and Human Dignity, through continuing judicial education and directed civil society engagement. This volume reflects their direct engagement and incorporates the particularly valuable lessons that these scholars bring with them from the field.

Chapters This volume lays out a series of arguments about the kinds of efforts that could be undertaken to better shape the context in a post-conflict/post-­ authoritarian environment to make transitional justice more successful. The book begins with two propositions about changes that could be made that will influence the social ethos in a given situation. The second part of the book lays out a series of institutional changes that could be undertaken in post-conflict/post-authoritarian societies prior to any transitional justice process. In the second chapter, Quinn argues that undertaking a process of basic education about the past will make the population more receptive to the transitional justice process. She makes the argument that the population can be “primed” before people can begin to engage in that process. Her chapter considers the thin sympathetic hypothesis through the case of Uganda. Chapter 3 considers the importance of democratic certainty, and its corollary, democratic uncertainty, in boosting the public’s trust in things 37  Ernest L. Boyer, Scholarship Reconsidered: Priorities of the Professoriate (San Francisco: Jossey-Bass Publishers, 1990), 21.

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like state institutions. Ferguson argues that solidifying the institutions that undergird transitional justice processes can increase the viability of transitional justice by changing people’s perceptions. Ultimately, this also shifts the broader social ethos, making it more conducive to trust in institutions. In Chap. 4, El-Masri explores some of the contextual challenges that were left untreated, ultimately causing the derailment of the transitional justice process in Lebanon. She argues that amnesty laws could ameliorate the existing context if they are balanced and that judicial reform, anti-­ corruption laws, judicial education and training, and sharing of judicial expertise, among other efforts, should be introduced to develop and safeguard the independence and impartiality of the national courts before prosecutions begin. Chapter 5 provides a detailed examination of the process surrounding the 2016 peace agreement that was signed in Colombia to bring an end to the Revolutionary Armed Forces of Colombia (FARC) conflict there. Through a sophisticated analysis using natural language processing techniques, Suárez and Lizama-Mué consider the language that was used in the discussion of “victims” during the negotiations that took place from 2012 to 2016, prior to the eventual signing of the peace agreement. Their analysis demonstrates that consciously changing the dialogue and negotiations leading up to the peace agreement by deliberately including or excluding certain terms will critically shape the peace agreement itself and also the transitional justice that follows. Freedman suggests in Chap. 6 that linking disarmament, demobilisation, and reintegration programmes with microcredit schemes could be another way to effectively improve post-conflict/post-authoritarian conditions to give transitional justice a better chance at success. Through the cases of the Democratic Republic of the Congo and of Sierra Leone, Freedman considers the transitional justice measures that have already been attempted and demonstrates that replacing the economic attractiveness of conflict with other economic opportunities could be useful to lure combatants out of conflict and into a secure life in a post-conflict context. In Chap. 7, Kersten considers the limits that have been placed on transitional justice in The Gambia by a stultified context that remained unchanged even after the transition took place. Kersten suggests a number of institutional changes, including judicial education and capacity, as well as access to justice, and the involvement of victims outside of The Gambia’s borders that hold promise in making future transitional justice efforts more effective.

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In Chap. 8, Bahdi and Kassis argue for the importance of judicial education in building judicial capacity as a way to set the stage for transitional justice. Bahdi and Kassis present a fascinating case study of a Palestinian initiative, “Karamah,” that focused on transformative judicial education programming as a way to enhance judicial trustworthiness by focusing on shared values, the judiciary’s commitment to serving the Palestinian people, and enhancing the judiciary’s ability to live up to its commitment. The Karamah project provides a useful example of a concrete measure that could be carried out to change the context to make it more amenable to transitional justice efforts. In the concluding chapter, El-Masri, Lambert, and Quinn explore some of the ameliorating factors that can be pursued at the attitudinal and institutional levels before the launch of transitional justice mechanisms. They unpack the importance of things like building democratic certainty and adopting thin sympathetic engagements to change the hearts and minds of people. They also discuss how various institutional fixes, like judicial reform and education, reconstructing trade, linking microcredit schemes to disarmament, and repatriating the assets of previous regimes may strengthen transitional justice processes. This chapter offers a consideration of how these and similar activities and programmes can somehow “cement” transitional justice processes to making them more successful.

Bibliography Borrows, John. Canada’s Indigenous Constitution. Toronto: University of Toronto Press, 2010. Boyer, Ernest L. Scholarship Reconsidered: Priorities of the Professoriate. San Francisco: Jossey-Bass Publishers, 1990. Brahm, Eric. “Lustration.” Beyond Intractability. June 2004. https://www. beyondintractability.org/essay/lustration. Carver, Richard. “Called to Account: How African Governments Investigate Human Rights Violations.” African Affairs 89, no. 356 (1990): 391–415. Chapman, Audrey R. and Hugo van der Merwe. Eds. Truth and Reconciliation in South Africa Did the TRC Deliver? Philadelphia: University of Pennsylvania, 2008. Colletta, Nat J. and Robert Muggah. “Context matters: interim stabilisation and second generation approaches to security promotion.” Conflict, Security & Development 9, no. 4 (2009): 425–453. Duthie, Roger. “Toward a Development-sensitive Approach to Transitional Justice.” International Journal of Transitional Justice 2, no. 3 (2008): 292–309.

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Duthie, Roger and Paul Seils. Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies. New York: International Center for Transitional Justice, 2017. Elster, Jon. Retribution and Reparation in the Transition to Democracy. Cambridge: Cambridge University Press, 2006. Ensalaco, Mark. “Truth Commissions for Chile and El Salvador: A Report and Assessment.” Human Rights Quarterly 16, no. 4 (1994): 656–675. Fletcher, Laurel, and Harvey Weinstein with Jamie Rowen. “Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective.” Human Rights Quarterly 31, no. 1 (2009): 163–220. Gonzalez Enriquez, Carmen, Alexandra Barahona de Brito, and Paloma Aguilar Fernández. The Politics of Memory: Transitional Justice in Democratizing Societies. Oxford: Oxford University Press, 2001. Gray, David. “An Excuse-Centered Approach to Transitional Justice.” Fordham Law Review 74, no. 5 (April 2006): 2621–2694. Gready, Paul and Simon Robins. “From Transitional to Transformative Justice: A New Agenda for Practice.” The International Journal of Transitional Justice 8 (2014): 339–361. Hansen, Thomas Obel. “Transitional Justice: Toward a Differentiated Theory.” Oregon Review of International Law 13, no. 1 (2011): 1–53. Hayner, Priscilla. Unspeakable Truths. 2nd ed. New York: Routledge, 2011. Hovil, Lucy and Zachary 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, Feb. 2005. Howard-Hassmann, Rhoda E. Reparations to Africa. Philadelphia: University of Pennsylvania Press, 2008. Jeffrey, Renée. Amnesties, Accountability, and Human Rights. Philadelphia: University of Pennsylvania Press, 2014. Kemunto Bosire, Lydia. “Overpromised, Underdelivered: Transitional Justice in Sub-Saharan Africa.” SUR: International Journal on Human Rights 5 (2006): 1–40. Kerr, Rachel and Eirin Mobekk. Peace and Justice. Malden, MA: Polity Press, 2007. Kim, Hun Joon and Kathryn Sikkink. “How Do Human Rights Prosecutions Improve Human Rights after Transition?” Interdisciplinary Journal of Human Rights Law 7, no. 1 (2013): 69–90. Kritz, Neil J. Ed. “The Dilemmas of Transitional Justice.” In Transitional Justice: How Emerging Democracies Reckon with Former Regimes. Washington, DC: United States Institute of Peace, 1995. McEvoy, Kieran. “Beyond Legalism: Towards a Thicker Understanding of Transitional Justice.” Journal of Law and Society 34, no. 4 (Dec. 2007): 411–440.

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McEvoy, Kieran and Lorna McGregor. Eds. Transitional Justice from Below: Grassroots Activism and the Struggle for Change. Portland, OR: Hart Publishing, 2008. Mendeloff, David. “Truth-Seeking, Truth-Telling and Post-Conflict Peacebuilding: Curb the Enthusiasm?” International Studies Review 6, no. 3 (2004): 355–380. Millar, Gearoid. “Between Western Theory and Local Practice: Cultural Impediments to Truth-Telling in Sierra Leone.” Conflict Resolution Quarterly 29, no. 2 (2011): 177–199. Minow, Martha. Between Vengeance and Forgiveness. Boston: Beacon Press, 1998. Olsen, Tricia D., Leigh A. Payne, and Andrew G. Reiter. Transitional Justice in Balance: Comparing Processes, Weighing Efficacy. Washington, DC: USIP Press, 2010. Olsen, Tricia, Leigh Payne, Andrew G.  Reiter, and Eric Wiebelhaus-Brahm. “When Truth Commissions Improve Human Rights.” International Journal of Transitional Justice 4, no. 3 (2010):127–152. Pham, Phuong N., Niamh Gibbons, and Patrick Vinck. “A framework for assessing political will in transitional justice contexts.” The International Journal of Human Rights 23, no. 6 (2019): 993–1009. Popkin, Margaret and Naomi Roht-Arriaza. “Truth as Justice: Investigatory Commissions in Latin America.” Law & Social Inquiry 20, no. 1 (1995): 79–116. Quinn, Joanna R. “Comparing Formal and Informal Mechanisms in Uganda.” In Trials and Tribulations of International Prosecution, edited by Henry (Chip) Carey and Stacey Mitchell. Lanham, MD: Rowman and Littlefield, 2015. Quinn, Joanna R. The Politics of Acknowledgement: Truth Commissions in Uganda and Haiti. Vancouver: UBC Press, 2010. Robins, Simon. “Towards Victim-Centred Transitional Justice: Understanding the Needs of Families of the Disappeared in Postconflict Nepal.” International Journal of Transitional Justice 5, no. 1 (2011): 75–98. Roht-Arriaza, Naomi. “Reparations Decisions and Dilemmas.” Hastings International and Comparative Law Review 27 (2003–2004): 157–219. Roman, David. Lustration and Transitional Justice: Personnel Systems in the Czech Republic, Hungary, and Poland. Philadelphia: University of Pennsylvania Press, 2011. The Rome Statute of the International Criminal Court (1998). Rowen, Jamie Rebecca. “‘We Don’t Believe in Transitional Justice’: Peace and the Politics of Legal Ideas in Colombia.” Law & Social Inquiry 42, no. 3 (2017): 622–647. Shaw, Rosalind. “Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone.” Special Report 130. Washington: United States Institutive of Peace, February 2005.

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Shaw, Rosalind, Lars Waldorf, and Pierre Hazan. Eds. Localizing Transitional Justice: Interventions and Priorities after Mass Violence. Stanford: Stanford University Press, 2010. Thoms, Oskar, James Ron, and Roland Paris. “State-Level Effects of Transitional Justice: What Do We Know?” International Journal of Transitional Justice 4, no. 3 (2010): 329–354. United Nations Human Rights Council, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya: Addendum: The situation of indigenous peoples in Canada. 2014. A/HRC/27/52/Add.2. http://www.ohchr. org/Documents/Issues/IPeoples/SR/A.HRC.27.52.Add.2MissionCanada_AUV.pdf. United Nations Secretary-General. Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice. March 2010. United Nations Secretary-General. Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict situations. 2011. S/2011/634. Vandeginste, Stef and Chandra Lekha Sriram. “Power Sharing and Transitional Justice: A Clash of Paradigms?” Global Governance 17, no. 4 (2011): 498–501. Vinjamuri, Leslie and Jack Snyder. “Law and Politics in Transitional Justice.” Annual Review of Political Science 18, no. 1: 303–327. Waldorf, Lars. “Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice.” Temple Law Review 79, no. 1 (2006): 1–87. Wiebelhaus-Brahm, Eric. “Uncovering the Truth: Examining Truth Commission Success and Impact,” International Studies Perspective 8 (2007): 16–35.

CHAPTER 2

Tractionless Transitional Justice in Uganda: The Potential for Thin Sympathetic Interventions as Ameliorating Factor Joanna R. Quinn

After conflict in multi-ethnic, divided societies, people often turn inward to their primary kin groups—what Tönnies calls the Gemeinschaft kinship community.1 They feel safer and more comfortable with people who look and sound like they do and consciously seek out mono-ethnic situations and arrangements. As a result, they stop interacting with people outside of those primary kin groups, whether at the market or at the movie theatre. This chapter advances a new theoretical construct about how to address that kind of division, based on nearly 20 years of study and fieldwork of the case of Uganda: thin sympathy. George and Bennett note that this  This is distinct from the Gesellschaft society, which Tönnies argued has fewer primary ties of kinship, and an erosion of philosophical and social values. See Ferdinand Tönnies, Community and Society (New York: Harper and Row, 1957); see also Max Weber, Economy and Society, Part II, eds. Guenther Roth and Claus Wittich (New York: Bedminster Press, 1968), 313. 1

J. R. Quinn (*) The University of Western Ontario, London, ON, Canada e-mail: [email protected] © The Author(s) 2020 S. El-Masri et al. (eds.), Transitional Justice in Comparative Perspective, Memory Politics and Transitional Justice, https://doi.org/10.1007/978-3-030-34917-2_2

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kind of ground-level work can “generate new variables or hypotheses on the basis of sequences of events observed inductively in case studies.”2 The thin sympathetic hypothesis asserts that if people are provided with ways to know and understand what has taken place outside of those kin-based groups, they will come to appreciate the experiences of the others and will not, at the very least, stand in the way of making sure that those people get the help they need. This can have two specific impacts: First, when transitional justice efforts are discussed, the larger society will not block their establishment, since they will at least understand why they are needed. Second, society itself will be more receptive to the transitional justice processes that are established, because of the attitudinal change that results from increased cognition about what has taken place. Thin sympathy is one of a number of ameliorating factors that can tip the scales to support the success of transitional justice mechanisms and processes. The theory-building I present in this chapter is augmented by interviews I have conducted over almost 20  years. I have spent more than 27 months in Uganda over a series of 12 fieldwork trips, talking to more than 440 people in a series of qualitative interviews with policymakers and participants and observers of transitional justice processes to understand the impact of the policy decisions that have been made, on fieldwork trips between 2001 and 2017, although I began to consider Uganda in significant detail as far back as 1998. The chapter itself relies in particular on data I collected on field trips to Uganda in 2014, 2015, and 2016, and 2017 to extend the thin sympathetic theoretical model. In a few cases, it also reaches back to the interviews I conducted for earlier studies, where relevant.

Thin Sympathetic Engagement After conflict and division, the literature spells out a number of things that must be done in the name of social repair. One of these is acknowledgement, which plays a critical role in the social rebuilding process after conflict.3 Govier notes that acknowledgement entails “spelling out facts, publicly stating facts … a kind of avowal or marking out of what we know” about the past.4 Individuals and whole societies must acknowledge the 2  Alexander L. George and Andrew Bennett, Case Studies and Theory Development in the Social Sciences (Cambridge, MA: Belfer Center Studies in International Security, 2004), 7. 3  Joanna R. Quinn, The Politics of Acknowledgement: Truth Commissions in Uganda and Haiti (Vancouver: UBC Press, 2010), 15–33. 4  Trudy Govier, “What Is Acknowledgement and Why Is It Important?” in Dilemmas of Reconciliation: Cases and Concepts, eds. Carol A.L.  Prager and Trudy Govier (Waterloo:

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past before any of the other acts of social rebuilding, like social cohesion and reconciliation, can take place.5 “There is a strong and causal relationship between acknowledgement … and reconciliation.”6 Unless a person is directly impacted by a particular event, though, that person is unlikely ever to acknowledge what has taken place. Victims certainly acknowledge the past, since they are forced to live with the indignities of their suffering. And it is clear that the majority of perpetrators do not want to acknowledge the role they played in the past, and often fail to do so, although they know the intimate details of their role in that past. But in a multi-ethnic society like Uganda, for example, where there are 65 different ethno-cultural groups and perhaps only two or three of those are involved directly in the conflict, that leaves a significant portion of the population out of the traditional victim–perpetrator dichotomy. Building thin sympathy is especially helpful in engaging “everyone else” in the society, beyond victim and perpetrator groups—which is often the only focus of formal transitional justice efforts. Developing a broader consensus about what has taken place, beyond victim and perpetrator groups, and connecting the rest of the country in “knowing” about the past will ultimately provide the conditions that make transitional justice work better. I had always expected that acknowledgement would somehow automatically take place and have long been puzzled about why it does not. Like Kevin Costner’s character in the movie The Field of Dreams I assumed that “if we build it, they will come.”7 That is, I thought if a mechanism like a truth commission was convoked, people would want to participate, and Wilfrid Laurier University Press, 2003), 70–71; see also Pumla Gobodo-Madikizela, “Acting Out and Working Through Traumatic Memory: Confronting the Past in the South African Context,” in Hurting Memories and Beneficial Forgetting: Posttraumatic Stress Disorders, eds. Michael Linden and Krzysztof Rutkowski, 217–226 (London: Elsevier, 2013); Alex Boraine, “Transitional Justice,” Journal of International Affairs 60, no. 1 (2006), 22. 5  Trudy Govier, “Acknowledgement and Forced Confession,” [typewritten manuscript] (Calgary, AB, author’s collection: 1999). On social cohesion, see Alexandre Marc, Alys Willman, Ghazia Aslam, Michelle Rebosio, with Kanishka Balsuriya, Societal Dynamics and Fragility: Engaging Societies in Responding to Fragile Situations, New Frontiers of Social Policy 74272 (Washington, DC: The World Bank, 2013). 6  Joanna R. Quinn, “What of Reconciliation? Traditional Mechanisms of Acknowledgement in Uganda,” in Reconciliation(s), ed. Joanna R. Quinn (McGill-Queen’s University Press, 2009), 178. 7  Phil Alden Robinson, dir., and Brian E. Frankish, Charles Gordon, Lawrence Gordon, and Lloyd Levin, prod., Field of Dreams, 107 min. (Santa Monica, CA: Gordon Company, 1989).

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they would willingly acknowledge what had taken place and their role in it. But that is rarely the case. “People in Uganda don’t exactly understand what happened in other communities,”8 said a faith-based policymaker who has been engaged in issues of peace and conflict at the national level throughout her career. This was confirmed by an NGO Forum representative who told me that “people don’t understand that their suffering is the same as what happened to others.”9 Another faith-based NGO (non-­ governmental organisation) analyst explained to me that “We don’t have a common history. So historical victimhood still affects us.”10 Another put it much more starkly: the popular sentiment, she said, is “‘Let them suffer as we have also suffered.’”11 One universal feature of all of this is a lack of awareness about what took place. Particularly in deeply-divided societies, there is no common basis for understanding. And since acknowledgement is a necessary but not sufficient condition for the rest of the social rebuilding process, unless acknowledgement begins, the balance of social repair is in jeopardy.12 Before acknowledgement can happen, though, a kind of basic understanding needs to be developed so that “thicker” kinds of understanding and even deeper forms of compassion can begin. Feeling what the other is feeling, what is sometimes called “emotional empathy,”13 the “act of feeling what you believe other people feel—experiencing what they experience,”14 calls for much more emotional and moral commitment than a simple understanding of facts or the “capacity to understand … that you are in pain without necessarily experiencing any of it myself.”15 The key intervening variable is the process by which individuals and societies can acquire a basic knowledge of what took place. I have called this thin sympathy, and I see it as the mechanism that can “flip the switch” to 8  Sister Specioza Kabahoma, Superior General, Sisters of Theresa, interview by author, 28 May 2015, Namugongo, Uganda. 9  Festus Kahigwa, Programme Officer, Capacity Development, Uganda National NGO Forum, interview by author, 29 May 2015, Kansanga, Uganda. 10  Godfrey Onentho Otwi, CARITAS, interview by author, 26 May 2015, Kampala, Uganda. 11  Sheila Muwanga, Foundation for Human Rights Initiative, interview by author, 20 May 2015, Kampala, Uganda. 12  Quinn, The Politics of Acknowledgement, 15–33. 13  Paul Bloom, Against Empathy: The Case for Rational Compassion (New York: Harper Collins, 2016), 17. 14  Bloom, Against Empathy, 3. 15  Bloom, Against Empathy, 36.

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Fig. 2.1  Sympathy-empathy continuum, with thin sympathy highlighted

produce the awareness and recognition that are required for thin sympathy to take place. It is important to emphasise that the use of the term sympathy here does not refer to the more popular, colloquial meaning, “to feel sorry for,” but instead refers to understanding, awareness, recognition, or appreciation. Sympathy itself is defined as “acquiring detailed knowledge about the way [the ‘other’] lives.”16 It is an “other-oriented,” response and entails the basic “comprehension of another’s emotional state or condition.”17 Sympathy was first specified by Adam Smith in 175918; over the ensuing years, however, the literature has grown rapidly to include any of a range of responses. The terms sympathy and empathy are often used interchangeably, although incorrectly: sympathy is purely cognitive; empathy is affective.19 The thin sympathetic hypothesis conceives of sympathy and empathy as being at two ends of a continuum (see Fig. 2.1). Sympathy is further divided into two categories, which I have called “thin sympathy” and “thick sympathy”—with direct reference to the depth of cognitive engagement that is required for each. At the thinnest end of the spectrum, thin sympathy 16  Nir Eisikovits, Sympathizing with the Enemy: Reconciliation, Transitional Justice, Negotiation (Dordrecht, The Netherlands/St. Louis, MO: Republic of Letters Publishing, 2010), 60. 17  Sandra H.  Losoya and Nancy Eisenberg, “Chapter Two: Affective Empathy,” in Interpersonal Sensitivity: The LEA series in personality and clinical psychology, eds. Judith A. Hall and Frank J. Bernieri (Mahwah, NJ: Lawrence Eribaum Associates Publishers, 2001), 23, 22. 18  Adam Smith, The Theory of Moral Sentiments (London: A. Millar, A. Kincaid, and J. Bell, 1759; reprint New York: Digireads, 2010). 19  Jean Decety and Philip L. Jackson, “The Functional Architecture of Human Empathy,” Behavioral and Cognitive Neuroscience Reviews 3, no. 2 (2004), 73.

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requires only a simple understanding of what has happened to the other, and a basic understanding of both his humanity and his needs.20 That is, the individual must become aware of the situation that has befallen the survivor and/or her family and/or the wider community, even if only implicitly.21 At the opposite end of the continuum is empathy. In the middle is what I have called thick sympathy: “entering into or sharing the feelings or interests of another.”22 Empathy is a far denser concept than sympathy. It refers to “a state of emotional arousal” that propagates shared affect, the experience of feeling or emotion.23 Scholars including LaCapra24 and Gobodo-Madikizela25 argue that empathy influences how a person comes to terms with another’s experience26 and is required to deal fully with past events.27 It is understood as a “full-blown curiosity and emotional openness towards another.”28 Decety and Jackson describe it as “sharing that person’s emotional state.”29 But empathy is a much more encompassing response than I think can be reasonably expected in still-divided societies. And it does not seem 20  Joanna R.  Quinn, “Failure to Launch: The Consequences of Prematurely Conceived Transitional Justice,” a paper presented at the European Consortium for Political Research, Montreal: 27 Aug. 2015. 21  Govier, “What is Acknowledgement,” footnote 11. 22  “Sympathy,” Merriam-Webster On-Line Dictionary; available from http://www.merriam-webster.com/dictionary/sympathy; accessed 13 Feb. 2016. 23  Losoya and Eisenberg, 23, 22. 24  See Dominick LaCapra, History in Transit: Experience, Identity, Critical Theory (Ithaca: Cornell University Press, 2004); Dominick LaCapra, Representing the Holocaust: History, Theory, Trauma (Ithaca: Cornell University Press, 1994); Dominick LaCapra, Writing History, Writing Trauma (Baltimore: Johns Hopkins University Press, 2000). 25  Gobodo-Madikizela, “Acting Out”; and Pumla Gobodo-Madikizela, “Reconciliation and Mutual Recognition After Mass Trauma,” keynote address presented at “Peace from the Ground-Up: Post Conflict Socialization, Religion and Reconciliation in Africa,” Monkey Valley Conference Centre, Cape Town, South Africa, 6 June 2013. 26   Gobodo-Madikizela, “Reconciliation and Mutual Recognition,” and Herbert G. Fingarette, “Self-Deception Needs No Explaining.” The Philosophical Quarterly 48, no. 192 (July 1998), 289–301. 27  Russell Daye, Political Forgiveness (Maryknoll, NY: Orbis Books, 2004); LaCapra, History in Transit; Paulette Regan, Unsettling the Settler Within: Indian Residential Schools, Truth Telling, and Reconciliation in Canada (Vancouver: University of British Columbia Press, 2010); Gobodo-Madikizela, “Acting Out and Working Through Traumatic Memory.” 28  Jodi Halpern and Harvey M.  Weinstein, “Rehumanizing the Other: Empathy and Reconciliation,” Human Rights Quarterly 36, no. 3 (Aug. 2004), 570. 29  Decety and Jackson, “The Functional Architecture of Human Empathy,” 73.

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possible, or even desirable, to expect the development of empathy ­throughout the population.30 But it might be possible to develop a thin sympathetic understanding—the thinnest, most basic, cognitive response. I argue that thin sympathy is enough to facilitate a person’s engagement with what has happened to the other, at least enough for that person to understand why that person might be in need of transitional justice.31 Hoggan and Conner note that “it is impossible to understand the problems, let alone create solutions, without deeply hearing what people are saying.”32 Indeed, Granovetter famously argued the importance of weak ties: “Whatever is diffused can reach a larger number of people and traverse a greater social distance, when passed through weak ties rather than strong.”33 That simplest awareness can be adequate for the social rebuilding process to proceed. This kind of knowledge can be transmitted in a number of different ways. It could include, for example, the implementation and teaching of a curriculum that explicitly includes not only what happened but the consequences of those actions.34 It could likewise include the creation and 30  Although I think he is incorrect in his characterisation, I note that Gopin discusses what he calls “the destructive aspects of empathy.” Gopin claims empathy can be “debilitating.” Gopin does admit that not all empathy is destructive, only what he calls “misdirected empathy.” See Mark Gopin, “Compassionate Reason: The Most Important Cultural and Religious Capacity for a Peaceful Future,” in Confronting Religious Violence: A Counternarrative, eds. Richard A. Burridge and Jonathan Sacks with Megan Warner, 147–165 (Waco, Texas: Baylor University Press, 2018), 160–162. See also Paul Bloom, Against Empathy: The Case for Rational Compassion (New York: HarperCollins, 2016). 31  Joanna R.  Quinn, “Cultivating Sympathy and Reconciliation: The Importance of Sympathetic Response in the Uptake of Transitional Justice,” in The limits of settler colonial reconciliation: Non-Indigenous people and the responsibility to engage, eds. Tom Clark, Ravi de Costa, Sarah Maddison (New York: Springer, 2016), 119–135. 32  James Hoggan with Grania Litwin and Roger Conner, “The Advocacy Trap,” in I’m Right and You’re an Idiot: The toxic state of public discourse and how to clean it up (Gabriola Island, BC: New Society Publishers, 2016), 15. 33  Mark S. Granovetter, “The Strength of Weak Ties,” American Journal of Sociology 73, no. 6 (1973), 1366. 34   See, for example, Sarah Maddison and Angélique Stastny, “Silence or Deafness? Education and the Non-Indigenous Responsibility to Engage,” in The limits of settler colonial reconciliation: Non-Indigenous people and the responsibility to engage, eds. Tom Clark, Ravi de Costa, Sarah Maddison (New York: Springer, 2016), 231–247; and Elisabeth King, From Classrooms to Conflict in Rwanda (New York: Cambridge University Press, 2013). In both instances, the authors caution against an unadulterated reliance on education, which can have unintended consequences, including reinforcing division and tension. Chapman, further, notes that incorporating findings from truth commissions, for example, into school

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­ issemination of film projects that depict stories of the past and why they d are important.35 These kinds of sensitisation activities can “breed such goodwill that it can, over time, translate into better relations”36—to improve the existing conditions so as to provide the best possible environment in which transitional justice can operate. These are factors that change the context to make it more conducive to transitional justice, each of which contributes to the building of thin sympathy. The success of acknowledging past events through conventional transitional justice mechanisms seems to depend on whether communities have even a basic understanding (thin sympathy) of the experiences and circumstances of survivors, both at the community and national level. The truth commissions in Uganda and Haiti, for example, failed in large part because bystanders and outsiders to the respective processes were unable to make the kinds of connections that were needed to comprehend the enormity of the suffering of victims in order to support such processes at even a very basic level.37 Understanding how and why these processes have failed is of great potential use to policymakers, as well as to the international legal community. If the thin sympathetic hypothesis is correct, it seems likely that resources, including funding and expertise, could be directed at fostering thin sympathy, so as to encourage acknowledgement in communities dealing with past abuse. Since evidence shows that acknowledgement processes can play a strong role in the process of social reconstruction after conflict,38 these processes could substantially strengthen the social infrastructure of conflict-affected areas of Uganda and elsewhere.

curriculum is not often done. See Audrey R. Chapman, “Truth Finding in the Transitional Justice Process,” in Assessing the Impact of Transitional Justice: Challenges for Empirical Research, eds. Hugo Van der Merwe, Victoria Baxter, and Audrey R. Chapman (Washington: United States Institute of Peace Press, 2009), 111. 35  One example of this is an effort carried out by the Cambodian NGO, DC-Cam, which produced a film project that recounted what took place under the Khmer Rouge. That film was shown widely throughout Cambodia and Cambodians engaged in dialogue about what the film portrayed. See Louis Bickford, “Unofficial Truth Projects,” Human Rights Quarterly 29, no. 4 (2007), 1023. 36  John Lenczowski, “Cultural Diplomacy, Political Influence, and Integrated Strategy,” in Strategic Influence, Public Diplomacy, Counterpropaganda and Political Warfare (Washington, DC: Institute of World Politics, 2008), 89. 37  Joanna R. Quinn, The Politics of Acknowledgement: Truth Commissions in Uganda and Haiti (Vancouver: University of British Columbia Press, 2010). 38  Quinn, The Politics of Acknowledgement.

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The benefit of thin sympathy accrues to the individual, through personal and interpersonal development and understanding. But its value goes far beyond the individual, to the greater society. The transformative potential of thin sympathy lies in its ability to evince a change in the wider community, making plain the need for a process that will allow it to come to terms with its past.

Ameliorating Factors In the introductory chapter to this volume, El-Masri, Lambert, and Quinn identify that ameliorating factors are those “factors that can be used to support or enhance” the processes of transitional justice.39 These are intervening activities that act to change the pre-existing conditions to the extent that transitional justice has a chance to take hold. They are analogous to applying fertiliser to the soil before planting a seedling, or to making sure to water the newly planted seedling afterwards; on their own, transitional justice processes could work—but they will work better if efforts are made to amend the conditions in which they will operate. Thin sympathetic engagement is one of those amendments that can “support and enhance” transitional justice before it is implemented.40 It acts to prepare the population by bridging the divides between estranged groups within multi-ethnic societies. It does so by promoting basic truths and knowledge among these groups and dispelling false notions about what has taken place. Having this fundamental understanding in place before a transitional justice process is begun is necessary so that communities will have an awareness of what took place and the consequences of those events. Thin sympathy could even prove helpful after a transitional justice process is initiated, since it could be useful in continuing to reinforce the acquisition of knowledge. All of this is particularly important in a place like Uganda. As detailed below, a series of intersecting conflicts has been ongoing there since prior to independence in 1962, under different leaders, in different decades, and affecting different groups within the Ugandan population. Nearly all 39   Samar El-Masri, Tammy Lambert, and Joanna R.  Quinn, “Creating the Right Conditions: The Role of Ameliorating Factors and Pre-existing Conditions in Transitional Justice,” in Transitional Justice in Comparative Perspective: Preconditions for Success, eds. Samar El-Masri, Tammy Lambert, and Joanna R. Quinn (New York: Palgrave, 2019), 2. 40  El-Masri, Lambert, and Quinn, “Creating the Right Conditions,” 2.

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of the ethno-cultural groups throughout the country have been affected in one conflict or another. On top of the violence perpetrated against the people of Uganda, there has been a campaign of division that has served to keep ethno-cultural groups estranged from one another, and distrust has been fomented between them. Even though Museveni was seen by many as a “darling of the west,”41 “the post-1986 period has seen enormous instability.”42 There has never been any real transition.

History of Conflict and Division in Uganda Beginning in 1894, what is now Uganda was ceded to the British in a series of agreements between the existing indigenous kingdoms and chieftaincies, each with its own ruler and independent leadership, over a 20-year period.43 But the colonial rule and its “divide and conquer” policy have left an indelible mark.44 There was never any real plan for cohesion, nor efforts to bring these disparate kingdoms and chieftaincies together in a systematic way, and as a result, those divisions mean that today Ugandans still identify with their subnational groups, as Karimojong, or Acholi, or Baganda, and not as Ugandan. Sabiiti argues that this results from “the failure to socialize the different ethno-racial groups into accepting each other as citizens of one country with a common destiny.”45 Throughout

41  Alicia Decker, “Beyond the State in Rural Uganda,” The International Journal of African Historical Studies 43, no. 1 (2010), 187. Among other initiatives, Museveni announced the creation of his “Ten-Point Programme,” which included promises of democracy and national unity, none of which have never materialised. Yoweri Kaguta Museveni, “Ten-Point Programme of the National Resistance Movement,” in Sowing the Mustard Seed, ed. Yoweri Kaguta Museveni (London: Macmillan, 1997), 217. 42  Aili Mari Tripp, Museveni’s Uganda: Paradoxes of Power in a Hybrid Regime (Boulder: Lynne Rienner, 2010), 36. 43   Dirk Berg-Schlosser and Rainer Siegler, Political Stability and Development: A Comparative Analysis of Kenya, Tanzania and Uganda (Boulder: Lynne Rienner Publishers, 1990), 97. 44  Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Kampala: Fountain Publishers, 1996); see also Compendium of Conflicts in Uganda: Findings of the National Reconciliation and Transitional Justice Audit (Kampala: Refugee Law Project, 2014), 15. 45  Mutengesa Sabiiti, “From Pearl to Pariah: The Origin, Unfolding and Termination of State-Inspired Genocidal Persecution in Uganda, 1980–1985,” SSRN, 21 Dec. 2006, n.p.

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the colonial period, Ugandan politics were deeply divided by race, tribalism, and class.46 In 1962 Uganda became independent from the British. Shifting allegiances throughout the post-colonial period played out in a series of coups. The first President, Milton Obote (1962–1971), ruled during a period characterised by significant numbers of riots and armed attacks.47 Obote was overthrown by General Idi Amin Dada, in January 1971. Amin came to be known as “the butcher”: He carried out a reign of terror, systematically murdering and torturing those he considered to stand in his way.48 Between 300,00049 and 500,00050 were killed between 1971 and 1979, when Amin was defeated. Interim governments were appointed in 1979 and 1980, and then Obote returned to power for a second term. It is estimated that between 300,00051 and 320,00052 people were killed by forces loyal to Obote, in retaliation. Obote was overthrown in July 1985 by Ugandan military forces. Yoweri Museveni and the National Resistance Army seized power in January 1986.53 They had been fighting against the regimes of Amin and Obote, as well as other transitional regimes, since 1971.54 Museveni has faced considerable opposition from many of the 65 different ethno-cultural groups in Uganda in a series of more than 44 armed insurgencies,55 including the conflict in northern Uganda against the 46  Mahmood Mamdani, Politics and Class Formation in Uganda (Kampala: Fountain Publishers, 1999), 228–229. 47  Berg-Schlosser and Siegler, Political Stability and Development, 196. 48  Nancy G. Wright, “Uganda: History From 1971,” Encyclopedia of Africa South of the Sahara, ed. John Middleton (New York: Charles Scribner’s Sons, 1996), 306. 49  Philip Briggs, Uganda (Old Saybrook, CT: The Globe Pequot Press, 1998), 23. 50  Museveni, Sowing the Mustard Seed, 41. 51  Uganda (Brooklyn: Interlink Books, 1998) 53; Thomas P. Ofcansky, Uganda: Tarnished Pearl of Africa (Boulder: Westview Press, 1996), 55. 52  Ofcansky, Uganda, 55. 53  For a much more complete account of Uganda’s history from 1971, see Berg-Schlosser and Siegler, Political Stability and Development, 97–132. 54  Museveni, Sowing the Mustard Seed, 33, 46–173. 55  The Compendium of Conflicts in Uganda lists 125 conflicts, 44 of which have taken place since 1986. See Compendium of Conflicts in Uganda: Findings of the National Reconciliation and Transitional Justice Audit (Kampala: Refugee Law Project, 2014). See also 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, Feb. 2004), 4; and Lucy Hovil and Zachary 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, Feb. 2005), 6.

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Lord’s Resistance Army (LRA), which decimated the region.56 Between 30,000 and 45,000 children were abducted by the LRA.57 At the height of the conflict, more than 80% of the population was internally displaced within the region.58 The scope and scale of conflict throughout Uganda has been immense. Including the LRA conflict, it is estimated that three million people have been killed, tens of thousands gravely injured, and tens of thousands more abducted and forcibly conscripted. As a result, Uganda has been left devastated by more than five decades of intense struggle and brutality, vestiges of which continue to occur at the time of writing. Besides the physical violence, political and cultural division has been formalised through a series of reforms that have mandated what is called “districtisation,” a form of decentralisation59 promoted by international agencies like the World Bank.60 Decentralisation has been carried out at a 56  UN Office for the Coordination of Humanitarian Affairs, “Uganda: War-ravaged north rues Museveni win,” IRINnews.org (1 March 2006); available from www.irinnews.org/ print.asp?ReportID=51960; accessed 10 March 2006. 57  Tim Allen points out that “the scale of abduction is a matter of speculation” due to insufficient monitoring. See Tim Allen, War and Justice in Northern Uganda: An Assessment of the International Criminal Court’s Intervention [independent report] (February 2005), iii. The exact number of total abductees in the LRA conflict is unknown. Pham, Vinck, and Stover estimate that “the LRA abducted 54,000 to 75,000 people, including 25,000 to 38,000 children, into their ranks between 1986 and 2006.” Phong N. Pham, Patrick Vinck, and Eric Stover, “The Lord’s Resistance Army and Forced Conscription in Northern Uganda,” Human Rights Quarterly 30, no. 2 (May 2008), 404. Forced conscription has been reported in many of the conflicts that have taken place since 1962, into both Government of Uganda and rebel ranks. Dennis Pain, The Bending of Spears: Producing Consensus for Peace and Development in Northern Uganda (London: International Alert, 1997), 29. 58  Geresome Latim, Secretary to the Paramount Chief of Acholi, interview by author, 22 November 2004, Gulu town, Uganda; see also World Vision, Pawns of Politics: Children, Conflict and Peace in Northern Uganda (Kampala: World Vision, 2004), 4. 59  Ronald Buye and Immaculate K.  Namukasa, “Decentralization and Education in Uganda,” Canadian and International Education 36, no. 1 (June 2007), 93. 60  “Political Decentralization,” Decentralization & Subnational Regional Economics, World Bank [website]; available from http://www1.worldbank.org/publicsector/decentralization/political.htm; accessed 29 January 2017. Uganda complied with the World Bank’s insistence on service delivery at the district level with the passing of the Local Government Act in 1992. Many I spoke to traced the current problems of division to the World Bank policy directive on decentralisation. See Chris Dolan, Director, Refugee Law Project, interview by author, 10 August 2016, Kampala, Uganda; Lyandro Komakech, MP, Gulu District Municipality, interview by author, 11 August 2016, Kampala, Uganda. Many

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rapid rate61 and has had increasingly dangerous consequences. Since 1962, for example, at the time of independence, the number of districts in Uganda has risen from 39 to 12162—and is projected to increase to 135 in 2019.63 Many districts, and especially larger ones, historically contained several different ethno-cultural groups, and people in those districts lived and worked side-by-side with people from different groups. Today, however, almost all the new districts contain just one ethno-cultural group.64 One person I interviewed told me that “because of settlement patterns in Uganda, almost every tribe can be confined to a district or two.”65 Many are critical of Museveni for separating the population into ever-smaller districts: “He is carving constituencies along ethnic lines.”66 As a result, people live and work in more and more isolation from people from other ethno-cultural groups. That partition has had far-reaching impacts. Because people have no way of knowing how the “other” lives, and because of the societal ruptures caused by the conflict, people know very little at all about each other and mistrust and suspicion have become commonplace. One national youth leader told me that “The biggest problem we have in Uganda is a also note that there are problems inherent in the decentralisation approach; see Remy Prud’homme, On the dangers of decentralization, Policy, Research Working Paper WPS 1252 (Washington, DC: World Bank, 1994); available from http://documents.worldbank.org/ curated/en/218141468739288067/On-the-dangers-of-decentralization; accessed 11 August 2017. 61  Buye and Namukasa, “Decentralization and Education in Uganda,” 93. 62  The Republic of Uganda, Ministry of Local Government Fact Sheet (1 July 2017); available from molg.go.ug/sites/default/files/MoLG%20-%20%20Fact%20Sheet.pdf; accessed 13 May 2019. 63  RTI International in partnership with CBM International, The Carter Center, Fred Hollows. Foundation, Helen Keller International, IMA World Health, Light for the World, Sightsavers, and World Vision, “ENVISION FY17 PY6 Uganda Work Plan,” [report online]; available from https://www.ntdenvision.org/sites/default/files/docs/uganda_fy17_ py6_envision_wp-external_final.pdf; accessed 13 May 2019. 64  The capital, Kampala, is an outlier in this regard. People are ethnically and culturally mixed in Kampala. “In Kampala, we are very conscious of each other’s cultures.” Rachel Odoi-Musoke, Senior Technical Advisor, Justice Law and Order Sector, interview by author, 3 August 2016, Kampala, Uganda. 65  Stephen Oola, Amani Institute Uganda, interview by author, 8 August 2016, Kampala, Uganda. 66  Joshua Kitakule, Secretary General, Inter-Religious Council of Uganda, interview by author, 27 July 2016, Kampala, Uganda.

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lack of exposure. If you grow up in [one district], you grow up thinking that all of Uganda is like you. The decentralised government system has really brought this on. You do all your schooling and get a job in your own region without ever stepping out. This makes you look at Uganda in a narrow way.”67 A Ugandan political scientist I interviewed told me ­something similar: “If you don’t move from your place you just have a stereotype of what is happening on the other side.”68 “People have not met anyone from the other side, so they just assume,”69 one peace activist told me. Transitional justice specialists, too, told me that they are now tracking the problem: “We generalise about ethnicity. People have started looking at themselves in cocoons.”70 Segregation of this sort breeds division.71 It “generates political polarization … and ultimately inhibits cooperation.”72 Putnam notes that “for various reasons—but above all, contention over limited resources—diversity fosters out-group distrust and in-group solidarity.”73 It is “associated 67  Shaft Nasser Mukwaya, Executive Secretary, National Youth Council, interview by author, 29 July 2016, Ntinda, Uganda. 68  Dr Juma Okuku, Senior Lecturer, Department of Political Science, Makerere University, interview by author, 3 August 2016, Kampala, Uganda. This was echoed by Rachel OdoiMusoke: “It’s not so much culture, but stereotypes and biases.” Rachel Odoi-Musoke, Senior Technical Advisor, Justice Law and Order Sector, interview by author, 3 August 2016, Kampala, Uganda. Ashanut Okille and Juma Okuku also referred to stereotypes. Ashanut Okille, Akijul, interview by author, 2 August 2016, Kampala, Uganda. Juma Okuku, Senior Lecturer, Department of Political Science, Makerere University, interview by author, 3 August 2016. 69  Rose Othieno, Executive Director, CECORE, interview by author, 28 July 2016, Kampala, Uganda. 70  Sarah Kihika Kasande, International Center for Transitional Justice, interview by author, 10 August 2016, Kampala, Uganda. Reference to “cocooning” was also made by Louis Okello, the Project Manager for Peace Architecture for Conflict Transformation Framework at the UNDP, interview by author, 12 August 2016, Kampala, Uganda. All comments are made in Okello’s personal capacity. Reference to “cocoons” was also made by Samson Asiimwe, Donor Governance Facility, interview by author, 5 August 2016, Kampala, Uganda. Another said, “Ethnicity has been institutionalized. They might spend all their time in their small nook, but they have no exposure elsewhere.” Justice James Ogoola, Chairman, Uganda Elders’ Forum, interview by author, 10 August 2016, Kampala, Uganda. 71  Jessica Trounstine, Segregation by Design: Local Politics and Inequality in American Cities (New York: Cambridge University Press, 2018), 144. 72  Trounstine, Segregation by Design, 38. 73  Robert D. Putnam, “E Pluribus Unum: Diversity and Community in the Twenty-First Century: The 2006 Johan Skytte Prize Lecture,” Scandinavian Political Studies 30, no. 2 (2007), 142. See also H.M. Blalock Jr., Toward a Theory of Minority-group Relations (New

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with a high degree of racial intolerance, resentment, and competition across all racial groups.”74 As Putnam writes, segregation breeds fear: “inhabitants tend to withdraw from collective life, to distrust their neighbors, regardless of the color of their skin, to withdraw even from close friends, to expect the worst from their community and its leaders …. Diversity, at least in the short run, seems to bring out the turtle in all of us.”75

Transitional Justice Efforts in Uganda Transitional justice has been employed in a number of different ways in Uganda since 1986.76 They have been implemented by the international community, the national government, and subnational groups. And all of them, as the title of this chapter suggests, have largely failed to gain any traction. Almost immediately upon seizing the capital in 1986, Museveni established a truth commission, the Commission of Inquiry into Violation of York: John Wiley and Sons, 1967); M.W.  Giles and A.  Evans, “The Power Approach to Intergroup Hostility,” Journal of Conflict Resolution 30 (1986), 469–485; L.  Quillian, “Prejudice as a Response to Perceived Group Threat: Population Composition and Antiimmigrant and Racial Prejudice in Europe,” American Sociological Review 60 (1995), 586–611; L. Quillian, “Group Threat and Regional Change in Attitudes Towards African Americans,” American Journal of Sociology 102 (1996), 816–860; M.B.  Brewer and R.J.  Brown, “Intergroup Relations,” in Handbook of Social Psychology, 4th ed., eds. D.T. Gilbert, S.T. Fiske, G. Lindzey (New York: Oxford University Press, 1998); M. Taylor, “Local Racial/Ethnic Proportions and White Attitudes: Numbers Count,” American Sociological Review 63 (1998), 512–535; L.D.  Bobo, “Prejudice as Group Position: Microfoundations of a Sociological Approach to Racism and Race Relations,” Journal of Social Issues 55 (1999), 445–472; and L.D. Bobo and M. Tuan, Prejudice in Politics: Group Position, Public Opinion and the Wisconsin Treaty Rights Dispute (Cambridge, MA: Harvard University Press, 2006). 74  Trounstine, Segregation by Design, 144. 75  Putnam, “E Pluribus Unum,” 150–151. 76  A much-earlier truth commission was established by Idi Amin in 1974, at the urging of the international community, to look into the many thousands of disappearances that he, himself, had effected. The commission was a charade, and the abuses continued until his overthrow in 1979. See Richard Carver, “Called to Account: How African Governments Investigate Human Rights Violations,” African Affairs 89, no. 356 (1990), 391–415; see also Joanna R. Quinn, “Commission of Inquiry into Disappearances of People in Uganda: Transitional Justice Institutions and Organizations,” in Encyclopedia of Transitional Justice, eds. Nadya Nedelsky and Lavinia Stan, vol. 1 (New York: Cambridge University Press, 2012), 61–64.

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Human Rights, to look into the crimes of his predecessors, whom he saw as enemies, since independence in 1962. The commission finished its work after eight years and ultimately faced insurmountable problems including a lack of political will, capacity issues, and a lack of funding.77 As a result, its impact was negligible. In 2000, the government agreed to an Amnesty Act, which had been proposed by the people of northern Uganda as the violence there escalated. It “was conceived as a tool for ending conflict … a significant step towards ending the conflict in the north and working towards a process of national reconciliation.”78 But it, too, was beset by problems; amnesties were slow in being granted, and by 2008 only just over 22,000 former combatants had received amnesty, although most had never received the monetary resettlement packages that were meant to accompany the amnesty certificates. There was also some question about the government’s support for the amnesty, as it waffled on the question over the following decade.79 The International Criminal Court (ICC) unsealed arrest warrants for Joseph Kony and the other four top leaders of the LRA in 2004. They were charged with more than 2200 killings and 3200 abductions in over 820 attacks. More than 15 years later, at the time of writing, Kony remains at large, three others are alleged to have died, and only former child soldier, Dominic Ongwen, is being tried for his role in the conflict. What has not been much discussed is the deal Museveni made with the then-­ Prosecutor in exchange for referring what was assumed to be an open-­ and-­shut situation: that Museveni and his allies would not be tried for their equally brutal role in the situation in northern Uganda.80

77  Joanna R. Quinn, “Constraints: The Un-Doing of the Ugandan Truth Commission,” Human Rights Quarterly, 26, no. 2 (May 2004), 401–427. 78  Lucy Hovil and Zachary 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, Feb. 2005), 6. 79  Joanna R. Quinn, “Chicken and Egg? Sequencing in Transitional Justice: The Case of Uganda,” International Journal of Peace Studies, 14, no. 2 (Autumn/Winter 2009), 35–53. 80  Museveni officially referred the situation to the ICC in December 2003. It has been commonly assumed that Museveni approached the Court first. Information has surfaced that the Chief Prosecutor actually approached Museveni to ask him to refer the situation, and that he struck a deal to preclude any prosecution of Museveni. See Nicholas Waddell and Phil Clark, eds., Courting Conflict? Justice, Peace and the ICC in Africa (London: Royal African Society, March 2008), 43.

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Customary practices, known colloquially as traditional justice, have been used as a way of dealing with the consequences of conflict, and particularly in northern Uganda. In particular, the Acholi utilised two now-­ famous ceremonies to welcome ex-combatant child soldiers back into their communities as they came out of the bush: mato oput (drinking the bitter herb), and nyono tong gweno (a welcome ceremony in which an egg is stepped on over an opobo twig).81 The Acholi resorted to the use of such ceremonies at a scale never before attempted because no help or support was forthcoming from the Museveni government.82 They were never properly resourced, and nor were they adequate for the LRA context.83 A national transitional justice policy has been in development since 2008. At that time, which coincided with the height of the conflict in northern Uganda, a coalition called the National Transitional Justice Working Group, under the auspices of the Justice Law and Order Sector,84 took action. Those documents and the push for a national transitional justice strategy “stalled out,”85 and the policy has not yet been implemented at the time of writing.86

81  For an excellent description of mato oput, see Sverker Finnström, 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), 297–299. 82  Joanna R. Quinn, “The impact of internal conflict on customary institutions and law: the case of Uganda,” Journal of African Law, 58, no. 1 (March 2015), 220–236. 83  Joanna R. Quinn, “Tradition?! Traditional cultural institutions on Customary Practices in Uganda,” Africa Spectrum 49, no. 3 (November 2014), 29–54. 84  “The sector comprises of: Ministry of Justice and Constitutional Affairs (MOJCA); Ministry of Internal Affairs (MIA); The Judiciary; Uganda Police Force (UPF); Uganda Prison Service (UPS); Directorate of Public Prosecutions (DPP); Judicial Service Commission (JSC); The Ministry of Local Government (Local Council Courts); The Ministry of Gender, Labor and Social Development (Probation and Juvenile Justice); The Uganda Law Reform Commission (ULRC); The Uganda Human Rights Commission (UHRC); The Law Development Centre (LDC); The Tax Appeals Tribunal (TAT); The Uganda Law Society (ULS); Centre for Arbitration and Dispute Resolution (CADER) and The Uganda Registration Services Bureau (URSB).” From “Our History,” JLOS: Justice for All [website]; available from http://www.jlos.go.ug/index.php/about-jlos/our-history; accessed 25 July 2017. 85  Justice Law and Order Sector official, interview by author, 11 May 2015, Kampala, Uganda. 86  Lyandro Komakech, MP, Gulu Municipality, interview by author, 26 June 2017, Kampala, Uganda.

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The story of the national transitional justice policy corresponds to the lack of success of many of the transitional justice initiatives described here. While there was great excitement about the possibility they offered, none has particularly succeeded. And in the absence of a practicable set of solutions, the people of Uganda who have been deeply affected by conflict remain “stuck” in the consequences of the conflict. By the same token, those who were not deeply affected by the conflict in northern Uganda were likely to have been affected by one of the earlier conflicts, and neither have their needs been met.

Nascent Thin Sympathy in Uganda And yet, in the same way as the people of northern Uganda took matters into their own hands when no help from the government was forthcoming in the LRA conflict, Ugandans have also been practising self-help in the form of thin sympathetic engagement. Although the examples are small in number, it is clear that some portions of Ugandan society are dissatisfied with the division and subsequent estrangement that has taken place between ethno-cultural groups. These individuals and groups have actively been engaged in promoting understanding, awareness, recognition, or appreciation of those other groups. I have documented several of these. It is important to understand both the role that these initiatives can play and that the sentiment behind them is clearly the promotion of an understanding or awareness of “the other.” Professor Oswald Ndoleriire, for example, together with a consortium of people from two neighbouring, mono-ethnic districts that have experienced escalating conflict with each other over the past few years, began to publish a bi-cultural, bi-lingual newspaper called Wamanya (roughly translated in English as “Have you known?”) in 2015. The newspaper is deliberately written half in the Runyoro language and half in the Rutooro language, and likewise half and half about the activities within each of the two kingdoms, Bunyoro and Tooro. It was established “to educate the people in their own vernacular” about what is going on in their local areas to demonstrate to the people that they are carrying out the same kinds of activities and living very similar lives to the people in the neighbouring district—and to familiarise them with one another.87 87  Prof. Oswald Ndoleriire, Director of the Confucius Institute, Makerere University, interview by author, 26 June 2017.

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Another example of thin sympathetic engagement is of the efforts of a group of Lugbara women in north-western Uganda, who suffered in a conflict between the West Nile Bank Front and the Uganda People’s Defence Force. Upon their return from the war in 2002, the decommissioned rebel soldiers received a sum of money yet gave their wives nothing; many ultimately rejected their wives completely and failed to provide for their families, not paying things like school fees for their children, and so on. In places like Uganda, that form of rejection leaves women, particularly, in a vulnerable position since there is no man who will protect her, physically and socially. The rejected women came to be known as “water widows,” a reference to a Biblical story in which a woman is left with nothing and is relegated to carrying water.88 The women have since received training on “self-importance,” peacebuilding, and reconciliation and have become community peace activists and community support mechanisms.89 “They are [now] important mediators on land conflicts, and even do prison visits.”90 The women now travel across Uganda, talking about their own experiences, speaking with other ethno-cultural groups who have been the victims of conflict, and doing inter-religious, inter-tribal and cross-border mediation to help rebuild societies after conflict. In another example, a leading Ugandan multi-faith coalition, the Inter-­ Religious Council of Uganda (IRCU),91 has worked actively to develop a specialised framework to build capacity among religious leaders in reconciliation, and to build dialogue between different faith communities.92 In 2010, the members of the IRCU formed the Inter-Religious Institute for Peace to prevent and transform conflicts, carry out interfaith and inter-­ religious dialogue, research and document conflicts and peace processes,  1 Kings 17:10.  Lina Zedriga, Regional Associates for Community Initiatives, interview by author, 7 July 2014, Kampala, Uganda. 90  Lina Zedriga, Regional Associates for Community Initiatives, interview by author, 7 July 2014, Kampala, Uganda. 91  The IRCU is made up of five of the largest religious communities in Uganda: Church of Uganda, Roman Catholic Church, Uganda Orthodox Church, Uganda Muslim Supreme Council, the Seventh Day Adventist Church, and churches from within the evangelical community, which have joined as “honorary members.” Godfrey Onentho Otwi, Inter-Religious Council of Uganda, interview by author, 7 July 2014, Kampala, Uganda. 92  Godfrey Onentho Otwi, Inter-Religious Council of Uganda, interview by author, 7 July 2014, Kampala, Uganda. 88 89

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and carry out dialogue and consensus-building to resolve the building-­ blocks of conflict.93 In a different case, Ugandans have played an important role in mediating cross-border conflict between Karamojong cattle rustlers and the neighbouring Iteso district. The Karamojong, who had killed a number of Iteso people in the neighbouring district and then fled to South Sudan surrendered, confessed that they were “killers of humans” and wrote letters of apology and went from home to home to apologise. Since that time, they have begun working for peace in their home communities. “They now call themselves peace ambassadors.”94 In another, a bicycle ride was organised in 2014 from the capital, Kampala, to northern Uganda. The group was to ride to Gulu, which had been the epicentre of the LRA conflict. The idea behind the ride was that the group would pass through different districts and would have the opportunity to meet up with people whom they did not know and would not otherwise have a chance to meet—but to work together to raise awareness for the people of northern Uganda, and at the same time to demonstrate that all of the people who participated had a lot in common.95 All of these examples are grassroots, ground-level activities that have taken place more or less spontaneously. They have not involved the state. They reveal that Ugandans, to quote the Eurythmics, are “doin’ it for themselves” when no official help is provided to them—and when the state fails to act. They demonstrate that at least some people are hungry for this kind of thin sympathetic engagement and eager to shed the restrictions imposed by the rigid districtisation that Museveni has imposed, to get to know their neighbours and to promote a kind of modus vivendi—a way of living that will allow strangers to coexist peacefully. This kind of thin sympathetic engagement could be carried out in a more formalised kind of way, rather than as one-off initiatives by isolated individuals. And if not by the state, they could certainly be carried out by a coalition of NGOs supported by the international community—as was the National Transitional Justice Working Group, for example. The tools of this kind of “cultural diplomacy” include the arts, exhibitions, exchanges, 93  Inter-Religious Council of Uganda, “Inter-Religious Institute for Peace (IRIP),” [pamphlet] (Kampala: IRCU, n.d.), 3. 94  John Fischer Tumuwesigye, CECORE, interview by author, 4 July 2017, Kampala, Uganda. 95  David Dronyi, interview by author, 14 May 2015, Kampala, Uganda.

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education programmes, literature, language teaching, broadcasting, gifts, listening and according respect, the promotion of ideas, the promotion of social policy and history, and religious diplomacy.96 Each of these may be built into strategies and “thematic programming designed … for ­long-­term effect.”97 These kinds of tools, for example, education programmes or radio broadcasts, could be created to promote at the very least a cross-­ cultural dialogue and understanding, which I call thin sympathy. The British Department for International Development, for example, supported a radio station based in Gulu, the epicentre of the LRA conflict, called MEGA FM. Its role was to provide what has been called “entertainment education” by helping to resolve the LRA conflict: “the process of purposely designing and implementing a medial message to both entertain and educate, in order to increase audience members’ knowledge about an educational issue, shift social norms, and change covert behavior,”98 so that “behaviors consistent with [one’s] beliefs can be subtly activated.”99 Indeed, “such campaigns are especially popular in post-conflict countries where governmental agencies and civil society are often unreliable vehicles for promoting social or political change.”100 One of its most effective programmes was a phone-in show called Dwog Paco (“come back home” in the Acholi language), which was tailored to speak directly to the LRA fighters. It featured formerly abducted ex-combatants who had escaped from the LRA conflict, talking about their escape routes, their experiences, and why coming home was important. From December 2003 and November 2004, more than 1200 combatants left the conflict as a result

96  John Lenczowski, “Cultural Diplomacy, Political Influence, and Integrated Strategy,” in Strategic Influence, Public Diplomacy, Counterpropaganda and Political Warfare (Washington, DC: Institute of World Politics, 2008), 82–87. 97  Carnes Lord, “What ‘Strategic’ Public Diplomacy Is,” in Strategic Influence: Public Diplomacy, Counterpropaganda, and Political Warfare, ed. J. Michael Waller (Washington, DC: Institute of World Politics, 2008), 53. 98  Arvind Singhal and Everett M. Rogers, “Chapter One: The Status of EntertainmentEducation Worldwide,” in Entertainment-Education and Social Change: History, Research, and Practice, eds. Arvind Singhal, Michael J. Cody, Everett M. Rogers, and Miguel Sabido (Mahwah, NJ: Lawrence Erlbaum, 2004), 5. 99  Elizabeth Levy Paluck, “Reducing Intergroup Prejudice and Conflict Using the Media: A Field Experiment in Rwanda,” Journal of Personality and Psychology 96, no. 3 (2009), 576. 100  Elizabeth Levy Paluck and Donald P.  Green, “Deference, Dissent, and Dispute Resolution: An Experimental Intervention Using Mass Media to Change Norms and Behavior in Rwanda,” American Political Science Review 103, no. 4 (2009), 624.

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of these broadcasts.101 The programme increased cognition about what was happening for rebel combatants in the bush; they had become estranged from their families and communities and feared hostility and retribution if they were to return home, because of the gravity of the crimes they had committed, whether voluntarily or involuntarily, while serving in the LRA. This thin sympathy made it acceptable for them to come home and rejoin those communities. Marsden et al. note that “insufficient recognition has been granted to the role that ideas of public diplomacy play in shaping collective and individual self-understandings.”102 Indeed, the implementation of thin sympathetic initiatives through the acquisition of knowledge can have at least four important effects: First, cutting “across group lines … is critical to promoting tolerance and interethnic relations.”103 Second, “a convergence across groups in society is essential for reducing fragility,”104 since “societies that experience convergence across groups have strong incentives to manage internal conflicts and power competitions.”105 Third, it can “mitigate the existence of any … lack of respect for [other] cultures and sensibilities.” Fourth, it can “disabuse … perceptions or at least lessen their intensity.”106 And all of this could work to ameliorate the pre-existing context in Uganda. By building a basic understanding between individuals and groups, the relative isolation and lack of exposure experienced by everyday Ugandans will be broken down. The pervasiveness of stereotypes assigned out of ignorance will be lessened. And Ugandans will begin to expand the narrow points of view that they now possess. As a result, an environment will be created in which Ugandans are more open to each other. “Individuals and groups [will be] connected in such a way that they feel it is better to collaborate than compete, and that they 101  Confidential interview with MEGA FM producer by author, 20 November 2004, Gulu, Uganda. 102  Magnus Marsden, Diana Ibañez-Tirado, and David Henig, “Everyday Diplomacy,” The Cambridge Journal of Anthropology 34, no. 2 (2016), 3. 103  Timothy D.  Sisk, “Preventing Deadly Conflict in Ethnically Fractured Societies: International Development Assistance for ‘Bridging’ Social Cohesion,” background paper for the UN/World Bank Flagship Study Preventing Violent Conflict (2017), 10. 104  Marc et al., Societal Dynamics and Fragility, 39. 105  Marc et al., Societal Dynamics and Fragility, 42. Marc et al. use the term convergence to describe something like thin sympathy. 106  Lenczowski, “Cultural Diplomacy,” 89.

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trust in the fundamentals of the overall social norms and networks that govern their behavior.”107 And the conditions that are necessary to make people open to the ideas of transitional justice, of obtaining “justice” for the victims of violence and harm, will exist. The impact of thin sympathy is broader than the interpersonal effect it can have on individuals. Thin sympathy has the potential to inform and reshape the way that societies think and feel, making it more open to the possibilities of transitional justice. This change can ultimately be the difference between implementing a transitional justice process and not, and between its eventual success and failure.

Conclusions Building tolerance and expanding points of view are necessary to break down the narrowness that results from the compartmentalisation of individual ethno-cultural groups in small administrative units—what in Uganda is called districtisation, and what have been called in other places “enclaves”—and a lack of exposure to the “other.” By fostering understanding, awareness, recognition, or appreciation through the acquisition of basic knowledge about that same “other,” thin sympathetic engagement can improve the conditions that exist between groups. And that knowledge can serve to make ripe the conditions for successful transitional justice. Much as history reveals that the deployment of transitional justice in Uganda has failed to gain any traction, Ugandans remain hopeful. Indeed, there are promising signs of the desire Ugandans have for thin sympathetic engagement, and some of them are detailed in this chapter. To be sure, these are small, isolated efforts that have been carried out without any support from the state. However, their use seems to demonstrate that efforts to build thin sympathy in individuals and communities could have a strong and positive impact on the perceptions that people have of each other. This is an area for future study. But one thing seems sure: Ameliorating the conditions in which transitional justice operates, it seems, could also be positively influenced by the building of thin sympathetic engagement. It seems likely that transitional justice will gain more traction as a result.

 Marc et al., Societal Dynamics and Fragility, 40.

107

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Bibliography Allen, Tim. War and Justice in Northern Uganda: An Assessment of the International Criminal Court’s Intervention. Independent Report. February 2005. Berg-Schlosser, Dirk and Rainer Siegler. Political Stability and Development: A Comparative Analysis of Kenya, Tanzania and Uganda. Boulder: Lynne Rienner Publishers, 1990. Bickford, Louis. “Unofficial Truth Projects.” Human Rights Quarterly 29, no. 4 (2007): 994–1035. Blalock H.M. Jr. Toward a Theory of Minority-group Relations. New York: John Wiley and Sons, 1967. Bloom, Paul. Against Empathy: The Case for Rational Compassion. New  York: Harper Collins, 2016. Bobo, L.D. “Prejudice as Group Position: Microfoundations of a Sociological Approach to Racism and Race Relations.” Journal of Social Issues 55 (1999): 445–472. Bobo, L.D. and M. Tuan. Prejudice in Politics: Group Position, Public Opinion and the Wisconsin Treaty Rights Dispute. Cambridge, MA: Harvard University Press, 2006. Boraine, Alex. “Transitional Justice.” Journal of International Affairs 60, no. 1 (2006): 17–27. Brewer, M.B. and R.J.  Brown. “Intergroup Relations.” In Handbook of Social Psychology. 4th ed. Eds. D.T. Gilbert, S.T. Fiske, G. Lindzey. New York: Oxford University Press, 1998. Briggs, Philip. Uganda. Old Saybrook, CT: The Globe Pequot Press, 1998. Buye, Ronald and Immaculate K. Namukasa. “Decentralization and Education in Uganda.” Canadian and International Education 36, no. 1 (June 2007): 93–116. Carver, Richard. “Called to Account: How African Governments Investigate Human Rights Violations.” African Affairs 89, no. 356 (1990): 391–415. Chapman, Audrey R. “Truth Finding in the Transitional Justice Process.” In Assessing the Impact of Transitional Justice: Challenges for Empirical Research, edited by Hugo Van der Merwe, Victoria Baxter, and Audrey R.  Chapman. Washington: United States Institute of Peace Press, 2009. Compendium of Conflicts in Uganda: Findings of the National Reconciliation and Transitional Justice Audit. Kampala: Refugee Law Project, 2014. Daye, Russell. Political Forgiveness. Maryknoll, NY: Orbis Books, 2004. Decety, Jean and Philip L.  Jackson. “The Functional Architecture of Human Empathy.” Behavioral and Cognitive Neuroscience Reviews 3, no. 2 (2004): 71–100. Decker, Alicia. “Beyond the State in Rural Uganda.” The International Journal of African Historical Studies 43, no. 1 (2010): 187–188.

2  TRACTIONLESS TRANSITIONAL JUSTICE IN UGANDA… 

43

Eisikovits, Nir. Sympathizing with the Enemy: Reconciliation, Transitional Justice, Negotiation. Dordrecht, The Netherlands/St. Louis, MO: Republic of Letters Publishing, 2010. El-Masri, Samar, Tammy Lambert, and Quinn, Joanna R. “Changing the context: Can conditions be created that are more conducive to transitional justice success?” In Transitional Justice in Comparative Perspective: Preconditions for Success, edited by Samar El-Masri, Tammy Lambert, and Joanna R.  Quinn. New York: Palgrave, 2019. Fingarette, Herbert G. “Self-Deception Needs No Explaining.” The Philosophical Quarterly 48, no. 192 (July 1998): 289–301. Finnström, Sverker. 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. George, Alexander L. and Andrew Bennett. Case Studies and Theory Development in the Social Sciences. Cambridge, MA: Belfer Center Studies in International Security, 2004. Giles, M.W. and A. Evans. “The Power Approach to Intergroup Hostility.” Journal of Conflict Resolution 30 (1986): 469–485. Gobodo-Madikizela, Pumla. “Acting Out and Working Through Traumatic Memory: Confronting the Past in the South African Context.” In Hurting Memories and Beneficial Forgetting: Posttraumatic Stress Disorders, edited by Michael Linden and Krzysztof Rutkowski, 217–226. London: Elsevier, 2013. Gobodo-Madikizela, Pumla. “Reconciliation and Mutual Recognition After Mass Trauma.” Keynote address presented at “Peace from the Ground-Up: Post Conflict Socialization, Religion and Reconciliation in Africa.” Monkey Valley Conference Centre, Cape Town, South Africa, 6 June 2013. Gopin, Mark. “Compassionate Reason: The Most Important Cultural and Religious Capacity for a Peaceful Future.” In Confronting Religious Violence: A Counternarrative. Eds. Richard A. Burridge and Jonathan Sacks with Megan Warner, 147–165. Waco, Texas: Baylor University Press, 2018. Govier, Trudy. “Acknowledgement and Forced Confession.” [Typewritten Manuscript.] Calgary, AB. Author’s collection: 1999. Govier, Trudy. “What is Acknowledgement and Why is it Important?” In Dilemmas of Reconciliation: Cases and Concepts, edited by Carol A.L. Prager and Trudy Govier. Waterloo: Wilfrid Laurier University Press, 2003. Granovetter, Mark S. “The Strength of Weak Ties.” American Journal of Sociology 73, no. 6 (1973): 1360–1380. Halpern, Jodi and Harvey M. Weinstein. “Rehumanizing the Other: Empathy and Reconciliation.” Human Rights Quarterly 36, no. 3 (Aug. 2004): 561–583. Helen Keller International Foundation, IMA World Health, Light for the World, Sightsavers, and World Vision. “ENVISION FY17 PY6 Uganda Work Plan.”

44 

J. R. QUINN

Report on-line. Available from https://www.ntdenvision.org/sites/default/files/ docs/uganda_fy17_py6_envision_wp-external_final.pdf. Accessed 13 May 2019. Hoggan, James with Grania Litwin and Roger Conner. “The Advocacy Trap.” In I’m Right and You’re an Idiot: The toxic state of public discourse and how to clean it up. Gabriola Island, BC: New Society Publishers, 2016. Hovil, Lucy 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, Feb. 2004. Hovil, Lucy and Zachary 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. “Incorporating Transitional Justice into lower secondary curriculum.” Refugee Law Project. Press Release. 2 September 2016. Inter-Religious Council of Uganda. “Inter-Religious Institute for Peace (IRIP).” Pamphlet. Kampala: IRCU, n.d. King, Elisabeth. From Classrooms to Conflict in Rwanda. New York: Cambridge University Press, 2013. LaCapra, Dominick. History in Transit: Experience, Identity, Critical Theory. Ithaca: Cornell University Press, 2004. LaCapra, Dominick. Representing the Holocaust: History, Theory, Trauma. Ithaca: Cornell University Press, 1994. LaCapra, Dominick. Writing History, Writing Trauma. Baltimore: Johns Hopkins University Press, 2000. Lenczowski, John. “Cultural Diplomacy, Political Influence, and Integrated Strategy.” In Strategic Influence, Public Diplomacy, Counterpropaganda and Political Warfare. Washington, DC: Institute of World Politics, 2008. Lord, Carnes. “What ‘Strategic’ Public Diplomacy Is.” In Strategic Influence: Public Diplomacy, Counterpropaganda, and Political Warfare, edited by J. Michael Waller. Washington, DC: Institute of World Politics, 2008. Losoya, Sandra H. and Nancy Eisenberg. “Chapter Two: Affective Empathy.” In Interpersonal Sensitivity: The LEA series in personality and clinical psychology, edited by Judith A. Hall and Frank J. Bernieri. Mahwah, NJ: Lawrence Eribaum Associates Publishers, 2001. Maddison, Sarah, and Angélique Stastny. “Silence or Deafness? Education and the Non-Indigenous Responsibility to Engage.” In The limits of settler colonial reconciliation: Non-Indigenous people and the responsibility to engage, edited by Tom Clark, Ravi de Costa, Sarah Maddison, 231–247. New York: Springer, 2016. Mamdani, Mahmood. Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism. Kampala: Fountain Publishers, 1996. Mamdani, Mahmood. Politics and Class Formation in Uganda. Kampala: Fountain Publishers, 1999.

2  TRACTIONLESS TRANSITIONAL JUSTICE IN UGANDA… 

45

Marc, Alexandre, Alys Willman, Ghazia Aslam, Michelle Rebosio, with Kanishka Balsuriya. Societal Dynamics and Fragility: Engaging Societies in Responding to Fragile Situations. New Frontiers of Social Policy 74272. Washington, DC: The World Bank, 2013. Marsden, Magnus, Diana Ibañez-Tirado, and David Henig. “Everyday Diplomacy.” The Cambridge Journal of Anthropology 34, no. 2 (2016): 2–22. Museveni, Yoweri Kaguta. “Ten-Point Programme of the National Resistance Movement.” In Sowing the Mustard Seed, edited by, Yoweri Kaguta Museveni. London: Macmillan, 1997. Ofcansky, Thomas P. Uganda: Tarnished Pearl of Africa. Boulder: Westview Press, 1996. “Our History.” JLOS: Justice for All. Website. Available from http://www.jlos. go.ug/index.php/about-jlos/our-history. Accessed 25 July 2017. Pain, Dennis. The Bending of Spears: Producing consensus for peace and development in Northern Uganda. London: International Alert, 1997. Paluck, Elizabeth Levy. “Reducing Intergroup Prejudice and Conflict Using the Media: A Field Experiment in Rwanda.” Journal of Personality and Psychology 96, no. 3 (2009): 574–587. Paluck, Elizabeth Levy and Donald P. Green. “Deference, Dissent, and Dispute Resolution: An Experimental Intervention Using Mass Media to Change Norms and Behavior in Rwanda.” American Political Science Review 103, no. 4 (2009): 622–644. Phong N. Pham, Patrick Vinck, and Eric Stover, “The Lord’s Resistance Army and Forced Conscription in Northern Uganda.” Human Rights Quarterly 30, no. 2 (May 2008): 404–411. “Political Decentralization.” Decentralization & Subnational Regional Economics. World Bank. Website. Available from http://www1.worldbank.org/publicsector/decentralization/political.htm. Accessed 29 January 2017. Prud’homme, Remy. On the dangers of decentralization, Policy, Research Working Paper WPS 1252. Washington, DC: World Bank, 1994. Available from http:// documents.worldbank.org/curated/en/218141468739288067/On-thedangers-of-decentralization. Accessed 11 August 2017. Putnam, Robert D. “E Pluribus Unum: Diversity and Community in the Twenty-­ First Century: The 2006 Johan Skytte Prize Lecture.” Scandinavian Political Studies 30, no. 2 (2007): 137–174. Quillian, L. “Group Threat and Regional Change in Attitudes Towards African Americans.” American Journal of Sociology 102 (1996): 816–860. Quillian, L. “Prejudice as a Response to Perceived Group Threat: Population Composition and Anti-immigrant and Racial Prejudice in Europe.” American Sociological Review 60 (1995): 586–611

46 

J. R. QUINN

Quinn, Joanna R. “Chicken and Egg? Sequencing in Transitional Justice: The Case of Uganda.” International Journal of Peace Studies 14, no. 2 (Autumn/ Winter 2009): 35–53. Quinn, Joanna R. “Commission of Inquiry into Disappearances of People in Uganda: Transitional Justice Institutions and Organizations.” In Encyclopedia of Transitional Justice, edited by Nadya Nedelsky and Lavinia Stan, 61–64. Vol. 1. New York: Cambridge University Press, 2012. Quinn, Joanna R. “Constraints: The Un-Doing of the Ugandan Truth Commission.” Human Rights Quarterly 26, no. 2 (May 2004): 401–427. Quinn, Joanna R. “Cultivating Sympathy and Reconciliation: The Importance of Sympathetic Response in the Uptake of Transitional Justice.” In The limits of settler colonial reconciliation: Non-Indigenous people and the responsibility to engage, edited by Tom Clark, Ravi de Costa, Sarah Maddison, 119–135. New York: Springer, 2016. Quinn, Joanna R. “Failure to Launch: The Consequences of Prematurely Conceived Transitional Justice.” A paper presented at the European Consortium for Political Research, Montreal: 27 Aug. 2015. Quinn, Joanna R. “The impact of internal conflict on customary institutions and law: the case of Uganda.” Journal of African Law, 58, no. 1 (March 2015): 220–236. Quinn, Joanna R. The Politics of Acknowledgement: Truth Commissions in Uganda and Haiti. Vancouver: UBC Press, 2010. Quinn, Joanna R. “Tradition?! Traditional cultural institutions on Customary Practices in Uganda.” Africa Spectrum 49, no. 3 (November 2014): 29–54. Quinn, Joanna R. “What of Reconciliation? Traditional Mechanisms of Acknowledgement in Uganda.” In Reconciliation(s), edited by Joanna R. Quinn. McGill-Queen’s University Press, 2009. Regan, Paulette. Unsettling the Settler Within: Indian Residential Schools, Truth Telling, and Reconciliation in Canada. Vancouver: University of British Columbia Press, 2010. Robinson, Phil Alden. Dir. Brian E. Frankish, Charles Gordon, Lawrence Gordon, and Lloyd Levin. Prod. Field of Dreams. 107 min. Santa Monica, CA: Gordon Company, 1989. RTI International in partnership with CBM International, The Carter Center, Fred Hollows. Sabiiti, Mutengesa. “From Pearl to Pariah: The Origin, Unfolding and Termination of State-Inspired Genocidal Persecution in Uganda, 1980–1985.” SSRN. 21 December 2006. Singhal, Arvind and Everett M.  Rogers. “Chapter One: The Status of Entertainment-Education Worldwide.” In Entertainment-Education and Social Change: History, Research, and Practice, edited by Arvind Singhal,

2  TRACTIONLESS TRANSITIONAL JUSTICE IN UGANDA… 

47

Michael J.  Cody, Everett M.  Rogers, and Miguel Sabido. Mahwah, NJ: Lawrence Erlbaum, 2004. Sisk, Timothy D. “Preventing Deadly Conflict in Ethnically Fractured Societies: International Development Assistance for ‘Bridging’ Social Cohesion.” Background paper for the UN/World Bank Flagship Study Preventing Violent Conflict, 2017. Smith, Adam. The Theory of Moral Sentiments. London: A. Millar, A. Kincaid, and J. Bell, 1759. Reprint New York: Digireads, 2010. “Sympathy.” Merriam-Webster On-Line Dictionary. Available from http://www. merriam-webster.com/dictionary/sympathy. Accessed 13 February 2016. Taylor, M. “Local Racial/Ethnic Proportions and White Attitudes: Numbers Count.” American Sociological Review 63 (1998): 512–535. The Republic of Uganda. Ministry of Local Government Fact Sheet. 1 July 2017. Available from molg.go.ug/sites/default/files/MoLG%20-%20%20Fact%20 Sheet.pdf. Accessed 13 May 2019. Tönnies, Ferdinand. Community and Society. New York: Harper and Row, 1957. Tripp, Aili Mari. Museveni’s Uganda: Paradoxes of Power in a Hybrid Regime. Boulder: Lynne Rienner, 2010. Trounstine, Jessica. Segregation by Design: Local Politics and Inequality in American Cities. New York: Cambridge University Press, 2018. Uganda. Brooklyn: Interlink Books, 1998. UN Office for the Coordination of Humanitarian Affairs, “Uganda: War-ravaged north rues Museveni win.” IRINnews.org. 1 March 2006. Available from www.irinnews.org/print.asp?ReportID=51960. Accessed 10 March 2006. Waddell, Nicholas and Phil Clark. Eds. Courting Conflict? Justice, Peace and the ICC in Africa. London: Royal African Society, March 2008. Weber, Max. Economy and Society. Part II. Eds. Guenther Roth and Claus Wittich. New York: Bedminster Press, 1968. World Vision. Pawns of Politics: Children, Conflict and Peace in Northern Uganda. Kampala: World Vision, 2004. Wright, Nancy G. “Uganda: History from 1971.” Encyclopedia of Africa South of the Sahara. Ed. John Middleton. New York: Charles Scribner’s Sons, 1996.

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by

Author

Asiimwe, Samson. Donor Governance Facility. 5 August 2016. Kampala, Uganda. Dolan, Chris. Director, Refugee Law Project. 10 August 2016, Kampala, Uganda. Dronyi, David. 14 May 2015. Kampala, Uganda. Justice Law and Order Sector Official. 11 May 2015. Kampala, Uganda. Kabahoma, Sister Specioza. Superior General, Sisters of Theresa. 28 May 2015. Namugongo, Uganda.

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Kahigwa, Festus. Programme Officer, Capacity Development, Uganda National NGO Forum. 29 May 2015. Kansanga, Uganda. Kihika Kasande, Sarah. International Center for Transitional Justice. 10 August 2016. Kampala, Uganda. Kitakule, Joshua. Secretary General, Inter-Religious Council of Uganda. 27 July 2016. Kampala, Uganda. Komakech, Lyandro. MP, Gulu District Municipality. 11 August 2016. Kampala, Uganda. Komakech, Lyandro. MP, Gulu Municipality. 26 June 2017. Kampala, Uganda. Latim, Geresome. Secretary to the Paramount Chief of Acholi. 22 Nov. 2004, Gulu town, Uganda. MEGA FM Producer. 20 November 2004, Gulu, Uganda. Mukwaya, Shaft Nasser. Executive Secretary, National Youth Council. 29 July 2016, Ntinda, Uganda. Muwanga, Sheila. Foundation for Human Rights Initiative. 20 May 2015. Kampala, Uganda. Ndoleriire, Prof. Oswald. Director of the Confucius Institute, Makerere University. 26 June 2017. Odoi-Musoke, Rachel. Senior Technical Advisor, Justice Law and Order Sector. 3 August 2016. Kampala, Uganda. Ogoola, Justice James. Chairman, Uganda Elders’ Forum. 10 August 2016. Kampala, Uganda. Okello, Louis. Project Manager for Peace Architecture for Conflict Transformation Framework at the UNDP. 12 August 2016. Kampala, Uganda. Okille, Ashanut. Akijul. 2 August 2016. Kampala, Uganda. Okuku, Dr. Juma. Senior Lecturer, Department of Political Science, Makerere University. 3 August 2016. Kampala, Uganda. Onentho Otwi, Godfrey. CARITAS. 26 May 2015. Kampala, Uganda. Onentho Otwi, Godfrey. Inter-Religious Council of Uganda. 7 July 2014. Kampala, Uganda. Oola, Stephen. Amani Institute Uganda. 8 August 2016. Kampala, Uganda. Othieno, Rose. Executive Director, CECORE. 28 July 2016. Kampala, Uganda. Tumuwesigye, John Fischer. CECORE. 4 July 2017. Kampala, Uganda. Zedriga, Lina. Regional Associates for Community Initiatives. 7 July 2014. Kampala, Uganda.

CHAPTER 3

The Role of Democratic Uncertainty in the Interplay Between Transitional Justice and Democratisation Peter A. Ferguson

This chapter examines the idea of democratic uncertainty as a possible ameliorating factor in understanding the potential for a mutually reinforcing relationship between successful transitional justice (TJ) and enduring democratic transitions. Democratic uncertainty is a notion that has been employed for a long time in the democratisation literature. In this chapter, democratic uncertainty is understood as the extent to which, when considering the future, actors perceive they have the opportunity to legally recruit supporters and the ability to convert that support into political representation. The basic idea is that in a democracy, actors are not indifferent to regime type. When evaluating their support, they do not simply compare the goods they currently receive to the goods they might expect under a nondemocratic regime. Rather, when they evaluate the goods they receive under a democratic regime, they modify this total to account for democratic uncertainty—the possibility of future government changes through democratic means.

P. A. Ferguson (*) The University of Western Ontario, London, ON, Canada © The Author(s) 2020 S. El-Masri et al. (eds.), Transitional Justice in Comparative Perspective, Memory Politics and Transitional Justice, https://doi.org/10.1007/978-3-030-34917-2_3

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This is important because post-conflict societies often pursue transitional justice activities at the same time they are in the midst of regime transitions. The existing conditions faced in such circumstances challenge the potential for success of both ventures. It is interesting that the transitional justice and democratisation literatures have treated such conditions in almost an opposite manner. This book draws attention to the idea that the transitional justice literature has largely talked around or ignored the existing context, taking the position that understanding and responding to such conditions is essential to successfully implementing transitional justice processes. The democratisation literature, on the other hand, has largely come to be dominated by such concerns. Issues such as economic development and performance, institutional configuration, civil–military relations, and international constraints have taken on an almost determinative role in understanding the success and endurance of democratic transitions. The difficulty with this later position is that it cannot explain why some transitions succeed in the face of poor contextual conditions while others fail in the face of more conducive ones. The long-standing relationship between the democratisation and transitional justice literatures provides the foundation for this chapter. The search for the preconditions to democracy began in earnest following the end of World War II.  While the search for an economic development threshold necessary to trigger democratic transitions never bore fruit, the research that undermined this connection pointed to the importance of moving beyond structural concerns and examining actor choice and decision-­making. The resulting “transitions” literature spurred not only efforts to understand why and how such transitions take place and endure or fail but also efforts to understand the relationship between human rights and the dynamics of regime transitions.1 While many in the democratisation literature were concerned that attempting to settle past accounts could trigger instability, scholars like Neil Kritz called for an examination of how emerging democracies should reckon with their former regimes.2 This chapter reformulates the idea of democratic uncertainty to point out the potential for a mutually reinforcing relationship between successful transitional justice and enduring democratic transitions. Given that the “transition” in transitional justice suggests some form of regime change, it  Paige Arthur, “How ‘Transitions’ Reshaped Human Rights: A Conceptual History of Transitional Justice,” Human Rights Quarterly 31, no. 2 (2009), 324. 2  Neil J.  Kritz, “The Dilemmas of Transitional Justice,” in Transitional Justice: How Emerging Democracies Reckon with Former Regimes, (ed.) Neil J. Kritz (Washington, DC: United States Institute of Peace, 1995), xix–xxx. 1

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is critical to understand the role that democratic uncertainty may play in determining the durability of a feedback loop between transitional justice and democratic transition. It has been suggested that transitional justice may aid democratic transitions by, among other things, boosting the public’s trust in state institutions. Likewise, progressing through a democratic transition may increase the possibility of success for transitional justice by, for example, solidifying the institutions undergirding the transitional justice process. Many, if not all, of the preexisting conditions that challenge the potential of transitional justice are the same ones long pointed to as impediments to a successful democratic transition. So, examining the manner in which democratic uncertainty may help to address such conditions holds the possibility of explaining how both processes may successfully confront these various challenges. This chapter utilises a very basic rational choice account that incorporates the notion of democratic uncertainty into the analysis of democratic reversal as a means of connecting the structural/contextual conditions and process/actor decision approaches found in the existing research on democratisation. The current literature largely focuses on cross-national, cross-time attempts to understand political and economic structural influences on regime change. While that research provides us with important insights, it reveals only a portion of the overall picture. This chapter addresses such concerns by recognising the need to further incorporate an understanding of the choices actors make when faced with such structural constraints. There is widespread agreement in the democratisation literature that democratic uncertainty is theoretically important. However, little effort is made to incorporate it into our formal and empirical research. Also, the theoretical foundation of the idea has come under fire. These attacks are largely based on the conceptual confusion surrounding democratic uncertainty. This chapter addresses these problems by narrowing the application of the idea to a sense that a democratic regime creates the opportunity to legally recruit supporters and to periodically convert that support into representation. A rational choice account based on this interpretation is then introduced which allows us to explicitly consider the importance of the concept of democratic uncertainty on the issue of democratic transitions and transitional justice. This rational choice account forms the theoretical foundation for explaining how democratic uncertainty serves as a mediating influence between the context that forms the structural stimuli that may trigger democratic reversal and the decision-making process and choices actors

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make in considering whether to support a democratic reversal. In order to understand when a democratic reversal takes place, we must move beyond the basic structural approach which assumes actors make decisions based on the payoffs they currently receive. These payoffs are the foundation of the so-called structural approaches and may, for example, be monetary (research examining the role of economic development and growth), corporate (research examining the role of the military), externally based (research examining the role of international influences), and/or political (research examining the structure of political institutions). The rational choice account advanced in this chapter takes the position that, in a democracy, actors do not make decisions based simply on what they currently receive. Rather, the perception of the level of democratic uncertainty affects the level of goods necessary for actors to continue supporting the present regime. When actors perceive a high level of democratic uncertainty, they should be more willing to tolerate a set of benefits that is lower than their most preferred outcome. This is because they see the potential for future change. Here, the role of transitional justice becomes salient. Arthur argues that one of the two normative aims of transitional justice is shoring up fragile democracies, in particular, because democratic values are positively influenced by “promoting confidence in the new political arrangements.”3 In turn, efforts on the part of new democratic actors to establish and strengthen these political institutions have the effect of addressing some of the precondition barriers that may impede the success of transitional justice measures. On the other hand, at low levels of democratic uncertainty, actors may require a higher set of goods because their possibility for changing that level of goods via recruitment and elections is not as promising. In order for an actor to weigh the comparative benefit of democracy and authoritarianism, it is also necessary for them to examine the benefits of authoritarianism. As such, an actor will consider the payoff received for winning a reversal game in light of the risk of failure and cost of losing a reversal fight. As such, an actor will support a democratic reversal when the payoffs they receive, as modified by their perception of the level of democratic uncertainty, under a democratic regime are lower than the payoff they expect to receive, as modified by risk of failure and the cost of losing a reversal fight, under a new, nondemocratic regime.

3

 Arthur, “How ‘Transitions’ Reshaped Human Rights,” 355.

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Uncertainty in the Democratisation Literature Research on democratisation has accepted the importance of the notion of uncertainty. O’Donnell and Schmitter first introduced us to the importance of incorporating the notion into democratisation research by pointing out there is a “high degree of uncertainty and indeterminacy which surrounds those who participate in a transition.”4 They correctly brought attention to the problem of determinism in the existing transition literature. Rather than an inevitable march from the breakdown of authoritarian regimes to consolidated democracies, they pointed out that authoritarian breakdowns triggered periods of uncertainty, which might result in a wide variety of regimes, both democratic and undemocratic.5 Around the same time, Przeworski advanced an argument regarding uncertainty that is particular to democracy.6 Rather than concentrating on the uncertainty O’Donnell and Schmitter claimed to be associated with all transition processes, he claimed that the institutions of democracy create a unique form of uncertainty, pointing out that “Democracy is an act of subjecting all interests to competition, of institutionalizing uncertainty. The decisive step toward democracy is the devolution of power from a group of people to a set of rules.”7 These rules require some form of voting on important issues. Przeworski suggests that democratic actors may know what is possible, as well as what is likely, due to such votes, but they do not know, with certainty, what actually will happen. While the research in this chapter draws heavily on the notion of democratic uncertainty as just described by Przeworski, it should be noted that subsequently he took the position that the issues around economic development are the critical ones to understanding democratic endurance and that democratic

4  Guillermo A. O’Donnell, Philippe C. Schmitter, and Laurence Whitehead, “Introducing Uncertainty,” in Transitions from Authoritarian Rule: Prospects for Democracy, (eds.) Guillermo A. O’Donnell, Philippe C. Schmitter, and Laurence Whitehead (Baltimore: Johns Hopkins University Press, 1986), 66. 5  Please note, I use the term authoritarian as a proxy to describe all nondemocratic regimes. 6  Adam Przeworski, “Some Problems in the Study of the Transition to Democracy,” in Transitions from Authoritarian Rule: Prospects for Democracy, (eds.) Guillermo A. O’Donnell, Philippe C. Schmitter, and Laurence Whitehead (Baltimore: Johns Hopkins University Press, 1986); see also Adam Przeworski, Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America (Cambridge; New York: Cambridge University Press, 1991). 7  O’Donnell, Schmitter, and Whitehead, “Introducing Uncertainty,” 14.

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­ ncertainty is “neither sufficient nor necessary for democracy to survive.”8 u This chapter builds on his original conception as a means to disagree with his subsequent change of heart. These conceptions of uncertainty hold an important place in the democratic transitions literature. A transition begins when “the relative certainty of authoritarian continuity” is undermined.9 In many of these cases, while actors would most often prefer a regime where they write (and enforce) all the rules, they end up supporting democracy. Because they are uncertain about their relative power, the intention of others, and their chances of gaining control of the country through nondemocratic means, they subject themselves to the uncertainty of democratic elections. While hoping for victory, they accept the possibility of defeat because they know their core political rights and freedoms will be constitutionally protected regardless of the election results (at least more protected than under a nondemocratic regime). However, once confronted with defeat, why accept it and continue to participate in democracy? In this circumstance, actors that continue to support democracy understand that the outcomes of future elections remain uncertain, so rather than undertake a risky effort to overthrow the existing regime, they instead turn their attention to fighting the next election. Likewise, the democratic consolidation literature heavily incorporates the notion of uncertainty. The process of achieving consolidation is all about the effort to eliminate the uncertainty surrounding the endurance of the democratic rules. For Linz, a democracy is consolidated when “none of the major political actors, parties, or organized interests, forces, or institutions consider that there is any alternative to democratic processes to gain power.”10 The most basic test of consolidation is that the rules of democracy become so certain that it becomes “the only game in town.”11 While a great deal of debate continues to surround the measurement of consolidation, there is widespread acceptance of the

8  Adam Przeworski, “Democracy as Equilibrium,” Public Choice 123, no. 3–4 (2005), 267; see also Adam Przeworski, “Self-Enforcing Democracy,” in The Oxford Handbook of Political Economy, (eds.) Barry R. Weingast and Donald Wittman (Oxford: Oxford University Press, 2006), 320. 9  Andreas Schedler, “Taking Uncertainty Seriously: The Blurred Boundaries of Democratic Transition and Consolidation,” Democratization 8, no. 4 (2001), 2. 10  Juan J. Linz, “Transitions to Democracy,” Washington Quarterly 13, no. 3 (1990), 158. 11  Ibid.

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conceptual link to the elimination of uncertainty regarding the rules of the democratic game. Unfortunately, the important role uncertainty plays in theories of democratisation has not translated to its incorporation into the research on democratisation. Schedler points out that “scholars tend to set aside issues of uncertainty the moment they turn to concrete empirical research.”12 While it is very common to conceptualise uncertainty as a defining feature of the various aspects of democratisation, when attention turns to the empirical side of research, it does not play a role.13 Of course the difficulties of operationalisation and measurement must be considered when evaluating this critique. Such is not the case, however, for rational choice and game theoretic approaches. Again, while heavily relying on uncertainty on the theoretical side, it plays no part in the actual rational choice accounts or games. One can possibly intuit elements of uncertainty in the preference structures of actors, but explicit treatments in the existing literature are lacking. One aim of this chapter is to lay the foundation for overcoming these shortcomings. A large part of the problem lies in the conceptualisation of uncertainty. It is used in so many different ways by so many different people that the core importance of the notion has become obscure. To overcome this, I propose stripping uncertainty back to its conceptual roots and then demonstrating how it can be incorporated into a basic rational choice account of democratic reversal. The purpose of this is to facilitate an understanding of the ways this new conception aids our comprehension of both democratisation and transitional justice. On the one hand, transitional justice may bolster democratic uncertainty and thus increase the chances for a successful conclusion to the democratic transition. On the other hand, the mechanics of increasing democratic uncertainty (strengthening institutions such as the courts) are largely aimed at reducing some of the most important precondition barriers that stand in the way of successful transitional justice outcomes.

 Schedler, “Taking Uncertainty Seriously,” 2.  Schedler, “Taking Uncertainty Seriously,” 5.

12 13

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Differing Interpretations of Uncertainty To understand the best way to incorporate uncertainty into both formal and empirical efforts, we must first explore its various interpretations in the literature. While the term uncertainty has been used to describe and/ or modify everything from power to preferences to actors to time (and much more), the two foundational uses in the democratisation literature regard regimes and institutions. On the one hand, there are the issues of regime selection and endurance. On the other are the institutional implications of both elections and public policy making. The influence of uncertainty on regimes concerns both selection and durability. O’Donnell and Schmitter “introduced uncertainty” into the democratisation literature by pointing out in the very first sentence of their concluding volume that they were dealing “with transitions from certain authoritarian regimes toward an uncertain something else.”14 That “something,” they argue, could include numerous forms of democratic or authoritarian rule. The reason for the uncertainty regarding regime outcome, for them, is a recognition of “the high degree of indeterminacy embedded in situations where unexpected events, insufficient information, hurried and audacious choices, confusion about motives and interests, plasticity, and even indefinition of political identities, as well as the talents of specific individuals, are frequently decisive in determining the outcome.”15 Their purpose is not to introduce a theory of uncertainty (in fact, they explicitly point out they have no such theory) but rather to demonstrate that the breakdown of an authoritarian regime thrusts the country and all the relevant actors into a situation fraught with uncertainty and to remind us that the ultimate outcome of this period, what regime we end up with, is also highly uncertain. This point has become accepted wisdom in the democratisation literature. Schedler subsequently attempts to push this conceptualisation of uncertainty further, in an effort to address the common distinction between democratic transition and democratic consolidation.16 While the breakdown of an authoritarian regime triggers uncertainty regarding whether democratic rules will be put into place, he contends the consolidation period brings into question the uncertainty regarding the  O’Donnell, Schmitter, and Whitehead, “Introducing Uncertainty,” 3.  Ibid., 5. 16  Schedler, “Taking Uncertainty Seriously.” 14 15

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endurance, and ultimately permanence, of such rules.17 Thus, the commonly identified endpoint of the transition is much more easily identified: a relatively free and fair election. Schedler, however, correctly points out that it is quite possible for a transition to end prior to the foundational election. There are any number of cases—for example, Nigeria in 1978— where it is clear that a transition has succeeded even before the actual vote takes place (owing to the establishment of electoral institutions as well as the military’s decision not to run or endorse candidates in the election). We should also consider that it might be quite common that the transition does not actually end with the foundational election. If actors are jockeying for position (and power), they may well view an election as nothing more than a means of clarifying their relative position in the game. In that case, it seems difficult to conclude that the uncertainty regarding the establishment of the rules of democracy has been eliminated (or even substantially reduced). Indeed, the ongoing concern regarding quasi- or electoral-­democracies and their backsliding seems to illustrate this point. The endpoint regarding the elimination of uncertainty surrounding the consolidation process is much more daunting. Schedler’s depiction of democratisation scholars tearing their hair out over this issue is quite apt. Indeed, O’Donnell, amongst others, suggests that the endeavour is pointless and should be abandoned.18 Given a research emphasis on democratic reversal, I am quite sympathetic to the notion that we should quit tying ourselves in knots trying to distinguish consolidation from endurance. Rather we should disaggregate the former into usable pieces and study the causes of the latter. Schedler’s position is that we should reconceptualise democratic transition and consolidation as continuous rather than dichotomous concepts.19 For the purposes of this chapter, there is no need to resolve this issue, as the point remains that the notion of uncertainty extends well beyond simply establishing democracy to include issues of both consolidation and endurance. However, it is important to note that the idea of transition seems to be employed differently in the democratisation and transitional justice literatures. By and large, the former refers everything leading up to the initial election as the transition and everything following the election as the consolidation phase. On the other  Schedler, “Taking Uncertainty Seriously,” 4.  Guillermo O’Donnell, “Illusions and Conceptual Flaws,” Journal of Democracy 7, no. 4 (1996), 160–168. 19  Schedler, “Taking Uncertainty Seriously,” 18. 17 18

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hand, the transitional justice literature seems to reference both phases under the umbrella term of transition. Despite just advocating a position more in line with the transitional justice approach, the importance of the difference for this chapter is really to make the reader aware of the different uses. A second approach to the concept of uncertainty in the democratisation literature involves the notion of the uncertainty of democracy. Here, we are concerned with Przeworski’s idea that democracy is a system where outcomes are uncertain.20 Rather than addressing the uncertainty regarding regime outcome, whether it be regime type or endurance, the issue is evaluation of uncertainty inherent to democratic regimes. Przeworski lays the foundation for this position: Uncertainty can mean that actors do not know what can happen, that they know what is possible but not what is likely, or that they know what is possible and likely but not what will happen. Democracy is uncertain only in the last sense. Actors know what is possible, since the possible outcomes are entailed by the institutional framework; they know what is likely to happen, because the probability of particular outcomes is determined jointly by institutional framework and the resources that the different political forces bring to the competition. What they do not know is which particular outcome will occur. They know what winning or losing can mean to them, and they know how likely they are to win or lose, but they do not know if they will lose or win. Hence, democracy is a system of rule open-endedness, or organized uncertainty.21

Building on this conception, Alexander argues that over the prior decade, two distinct lines of theorising have evolved regarding the procedural definition of democracy.22 The first argues that democracy uniquely “institutionalises uncertainty” over outcomes. The second argues that the “rule of law” associated with democracy is quite different from the rule of men associated with authoritarianism. For Alexander, the importance of these approaches is the argument that the procedural differences between democracy and authoritarianism have substantive consequences. He claims that these approaches “culminate in mutually incompatible ­characterisations

 Przeworski, Democracy and the Market, 12.  Ibid. 22  Gerard Alexander, “Institutionalized Uncertainty, the Rule of Law, and the Sources of Democratic Stability,” Comparative Political Studies 35, no. 10 (2002), 1145–1170. 20 21

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of outcomes under democracy and authoritarian rule.”23 The institutionalised uncertainty advocates claim that there is greater uncertainty over outcomes in a democracy (than under authoritarianism) because the results of contested democratic decisions are not known ahead of time. The rule of law proponents claim that democracy provides greater certainty because there is a more abbreviated range of outcomes in a democracy. In evaluating this seeming contradiction, Alexander finds that predictability and risk vary widely across both authoritarian and democratic regimes.24 Hence, he concludes that actors should shift regime preferences given varying circumstances rather than preferring democracy due to unique certainty/uncertainty benefits.

Flaws in Existing Interpretations In order to more fully integrate the concept of uncertainty into the democratisation literature, it is necessary to critically evaluate the various interpretations that currently exist among scholars. The critique advanced in this chapter will concentrate on three areas. First, the decision to label the phenomena in question as “uncertainty” has resulted in a great deal of conceptual confusion as well as a proliferation of its use as people explore its interpretations across a wide variety of other academic disciplines. Second, while concerns about ultimate regime outcomes and endurance are important, they detract from the theoretical importance of democratic uncertainty. Finally, the argument that the procedural differences associated with democratic uncertainty result in unique policy outcomes has theoretically overburdened the concept and allowed opponents to undermine its viability in the literature. Ultimately, resolving this confusion explains how the idea of democratic uncertainty addresses the existing context in a manner that explains the mutually reinforcing relationship between democratisation and transitional justice. While the faculty club critiques that social scientists are frustrated hard scientists and that political scientists seem to be frustrated economists make for good lunchtime banter, a kernel of truth can be seen in political scientists’ penchant for importing terms from other disciplines and applying them as labels on seemingly similar phenomena found in our research. This is definitely the case regarding the use of uncertainty as a label for  Ibid., 1147.  Ibid., 1153.

23 24

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ideas in the democratisation literature. While uncertainty has specific, well-defined meanings in economics and a variety of hard science disciplines, in political science (particularly among democratisation scholars) it is used as a synonym for a wide variety of terms including risk, lack of information, ignorance, probability, and ambiguity, amongst others. The particular problem that arises from this loose application of terminology is apparent with the notion of democratic uncertainty. It has been used to describe a lack of information about regime outcome, risks associated with regime endurance, subjecting leaders to periodic elections whose results are not known in advance, and institutional rules that allow for a variety of public policy outcomes. The difficulty is that when one attempts to understand or defend one conception of this uncertainty, one confronts arguments that are irrelevant to the question at hand yet are brought to bear because they carry the same label. Towards this end, this chapter seeks to isolate one particular form of democratic uncertainty, electoral uncertainty, and argue evaluations of this, along with the viability of a set of core political rights, is what actors evaluate when attempting to decide the relative benefits they receive from a democratic regime. Notwithstanding the importance of the contribution O’Donnell and Schmitter made towards our understanding about the deterministic tendencies found in the early democratic transitions literature, my position is that the notion that authoritarian breakdowns do not result in certain transitions to democracy is not relevant to actors’ evaluations of the benefits they receive under democratic regimes. This notion of uncertainty does not lay a theoretical framework for understating the process of democratisation. Rather it is the recognition of a factual situation that some had attempted to ignore: the breakdown of an authoritarian regime may result in a wide variety of democratic and nondemocratic regimes. As such, this form of uncertainty, by definition, underlies all transition cases. Likewise, the desire to extend democratic uncertainty into the realm of policy outcomes undermines the theoretical viability of the notion. Alexander’s sweeping critique of the theoretical importance of democratic uncertainty fundamentally relies on an argument based around the issue of policy outcomes.25 He contends that the institutionalised uncertainty and rule of law approaches produce opposite predictions regarding the effects that regime type has on the levels of certainty and uncertainty of  Ibid.

25

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policy outputs. From his perspective, this seeming contradiction is resolved by the finding that levels of certainty and uncertainty regarding policy outputs vary both within and between regimes. Based on this, he concludes that the notion of democratic uncertainty is irrelevant; instead, we should focus on “case specific facts, not generic regime attributes …. As a result, actors cannot form expectations over outcomes on the basis of generic regime attributes.”26 The difficulty with this attack on the theoretical viability of democratic uncertainty is that it relies on an analysis of only one of the potential implications of this notion: policy outputs. If, for the sake of argument, we grant the idea that certainty regarding policy outputs is independent of regime type, the question becomes is there anything left in the concept that may cause actors to support democratic regimes? I contend that the original benefits of democratic uncertainty remain. Actors accept democracy because they know that governments are subject to periodic elections. They accept defeat because institutionalised periodic elections allow for the opportunity to fight for control at some point in the near future and the guarantee of core political rights affords them the opportunity to gather support necessary to increase the possibility that fight may succeed.

Rehabilitating Democratic Uncertainty The idea behind the notion of democratic uncertainty remains as theoretically important as ever. The root of the problem in the current literature is the term itself has been conceptually overstretched and the implications of the arguments surrounding the term have been pushed too far. To remedy this, a more limited conception and set of outcomes that currently exists in the literature is advanced. For the purpose of evaluating the level of support actors attach to democratic regimes, democratic uncertainty is understood as the extent to which, when considering the future, actors perceive they have the opportunity to legally recruit supporters and the opportunity to convert support into representation. One outcome of this form of democratic uncertainty is actors are able to envision acceptance of losses they experience while operating under a democratic regime. This version of the concept helps us answer the central questions why actors with other more preferred options accept democracy, as well as why they accept

 Ibid., 1162.

26

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defeats under democracy. Additionally, this more limited version avoids the existing critiques that threaten its conceptual future. The ideas of a legal ability to recruit followers and an opportunity to convert followers into representation borrow from the core of the rule of law and institutionalised uncertainty viewpoints. Actors can perceive the ability to recruit based on a limited set of constitutionally entrenched core political rights (rule of law). They can perceive the opportunity for representation based on constitutionally entrenched periodic elections (institutionalised uncertainty). While Alexander views these as “mirror images of one and other,” it seems rather that he has created a false dichotomy for argumentative convenience.27 In Dahl’s Polyarchy there is a recognition that contestation must be supported by some limited set of rights.28 It is difficult to envision the possibility of relatively free and fair elections without some form of protected political rights. Likewise, it is difficult to imagine a set of core political rights existing that do not give rise to some form of democratic election. Conceptually they are not mirror images but central elements of the core mural. Alexander is able to present these approaches in opposition is due to the implications for certainty on policy outcomes. The rule of law decreases policy uncertainty because it limits the scope of policies considered in a democracy. The institutionalised uncertainty increases policy uncertainty because one can never be assured of the outcomes of votes (see Table 3.1). He then argues these approaches are flawed because it is not possible for certainty to both increase and decrease. He further points to cases of democracies that have high and low levels of uncertainty. The problem with this analysis is that is it quite possible for a system to have elements that both increase and decrease uncertainty. They are not mutually exclusive. It seems quite reasonable to imagine a democratic regime that reduces uncertainty by limiting some policy options (those based on Table 3.1  Two views of the consequences of democratic uncertainty

Institutionalised Uncertainty rule of law

Democracy

Non-democracy

Increases uncertainty Decreases uncertainty

Decreases uncertainty Increases uncertainty

 Ibid., 1146.   Robert Alan Dahl, Ian Shapiro, and Grant Reeher, Polyarchy: Participation and Opposition (New Haven: Yale University Press, 1971). 27 28

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violations of core political rights) while at the same time increasing uncertainty by subjecting the remaining policies to democratic rules (voting of some form). The same is true for authoritarian regimes: they may increase uncertainty by having no policies that are constitutionally taken off the table while at the same time decreasing uncertainty because the policy selected from among that wide range of choices will be decided by a single actor (or group). The dichotomy presented by Alexander is false because the certainty (and uncertainty) he discusses takes place in different times and space in a regime. Rather than engage in a discussion regarding the relative levels of certainty and uncertainty found in democratic and authoritarian regimes (an eminently possible discussion), the purposes of the arguments in this chapter are more directly served by evaluating whether democratic uncertainty retains a substantive benefit if one agrees there are no systemic policy implications of such uncertainty. Alexander argues: Democracy’s discretionary powers are definitionally required to operate through some set of decision rules and may not be used to violate core rights and periodic elections. But these prove to be relatively modest constraints, and outside of them, binding policies generated democratically are formally permitted to take on essentially any value whatsoever.29

So, if the level of uncertainty varies both within and between regime types, does this necessarily mean the notion of democratic uncertainty holds no importance for actors? The answer is found in Alexander’s own argument: the “relatively modest constraints.” Here he is referring to constitutionally protected political rights as well as the idea of ongoing, periodic elections. While these constraints may not hold systemic public policy implications and they certainly are not sufficient to guarantee democratic consolidation, they do provide a unique benefit to actors evaluating democracy: they make potential losses palatable by providing the basis of the possibility of future wins. As previously mentioned, it is unfortunate this has come to be labelled as democratic uncertainty. These “modest constraints” should provide a higher level of certainty to actors that are uncertain about their evaluation of democratic regimes. Actors should assign some level of probability to 29  Alexander, “Institutionalized Uncertainty, the Rule of Law, and Sources of Democratic Stability,” 1158.

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the idea that even if they lose a democratic fight, their core rights are protected and there will be another election. They can thus continue to recruit followers and attempt to convert that support to increased representation in the future. Under an authoritarian regime, you may have some core political rights but the guarantee of their continued existence in the event you lose is much lower than under a democracy. Likewise, leadership fluctuates under authoritarianism but such fluctuation is not institutionalised, making it difficult for actors to allow it to enter into their evaluations of relative systemic benefits. As such, these “modest constraints” (core constitution rights and periodic elections) remain important regardless of their effect on policy outputs under either regime type.

Democratic Uncertainty as an Ameliorating Factor Allow me to suggest a very basic rational choice account for how any actor might approach a decision as to whether to support a democratic regime or to support an effort to change to an authoritarian regime. For our purposes, it is easier to consider a regime that has successfully concluded at least one generally free and fair election (recalling that the democratisation literature would refer to this regime as having  completed a democratic transition and being in the consolidation phase, while the transitional justice literature would consider this to be a transitional regime). When thinking about their support for the existing regime, it seems obvious an actor would first consider the payoff she is currently receiving in the status quo. These payoffs are largely determined by circumstances or the context within the country (e.g., economic), what both literatures may refer to in part as preexisting conditions. Under a stable authoritarian regime, this may be the only factor necessary for one to arrive at a decision regarding regime support. However, under a democratic regime, it seems that an actor would also consider the prospects for change in the near future due to elections. She will thus also consider both the probability of her side winning and losing the next election as well as the payoffs she would receive for winning and losing. Given our theoretical explanation of democratic uncertainty, this actor will go one step further; she will consider the benefits (and costs) of democratic uncertainty. These benefits are not adequately captured by the probability of winning the next election because while you may be fairly certain you will lose the next electoral round, you will still assign a benefit to the idea that you retain the opportunity to continue to try and gather

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s­upporters and to translate them into representation in future elections. On the other hand, even if you are fairly certain you will win the next round, you cannot simply calculate this probability alone because that would be an indication you believed you would continue to win all future rounds. Rather, a basic understanding of the democratic rules would dictate that actors would discount the possibility of always winning by accounting for democratic uncertainty. Thus, while an actor may not receive an acceptable level of payoffs given the current (or immediate future) distribution of power under a democratic regime, they may continue to support democracy because of some expectation of the probability of a future win. In order for an actor to weigh the comparative benefit of democracy and authoritarianism, especially during a transitional/consolidation period, it is also necessary for her to examine the benefits of authoritarianism. The actor will consider the payoff she receives for winning under authoritarianism as well as the payoff for losing. However, looking at the win/loss set does not provide a sufficient picture of the benefits of authoritarianism. First, history is replete with stories of failed coup attempts, meaning she must consider the probability of achieving a successful transition to authoritarianism as well as the payoff (such as jail time or death) she receives if the coup fails. Second, any attempt to break a democratic regime down will incur costs. Such costs could be reflected in casualties amongst supporters, ongoing payments to co-conspirators, lost opportunities due to damage caused by fighting (e.g., infrastructure damage), and punitive actions of the international community (to name a few examples). Third, if we assume actors consider the possibilities of winning and losing future rounds of democratic competitions, it seems only reasonable for them to consider an analogous possibility for authoritarianism. Even if she assumes a successful transition to authoritarianism, she has to also consider the possibility of maintaining or losing future control. The main benefit of this approach to analysing regime support is to demonstrate that the level of support for a democratic regime is not necessarily directly related to the level of payoffs one currently receives. The context, alone, is not enough for actors to make such judgments. The perception of the level of democratic uncertainty affects the level of goods necessary for actors to continue supporting the present regime. When actors perceive a high level of democratic uncertainty, they should be more willing to tolerate a set of benefits that is lower than their most preferred outcome. This is because they see the potential for future change. At low

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levels of democratic uncertainty however, they require a higher set of goods because their possibility for changing that level of goods via recruitment and elections is not as promising. Likewise, a similar relation holds true when examining an actor’s tolerance for risk related to a reversal move. Here, a high level of democratic uncertainty is seen to decrease one’s tolerance for the risks associated with regime change. Given the possibility of favourable change in the future under democracy, actors would likely consider the costs associated with such change (mainly time) to be more tolerable than the costs associated with a reversal move. These considerations are important because they begin to allow us to understand why actors in identical structural situations (contextual conditions that are economic, institutional, etc.) may hold different views on whether to support the existing democratic regime. Thus, in circumstances where democratic uncertainty exists, actors are not indifferent to regime type. The rational choice account advanced here also does a superior job of explaining an actor’s calculation of the benefits of supporting democratic reversal. First, it allows actors to incorporate a consideration of risk. This overcomes the problem of assuming that if actors support a reversal they are certain to receive the payoff for ruling the nondemocratic regime. Given that attempts to overthrow a regime can fail, it seems prudent to allow actors to consider their probability for success. This also allows us to explicitly incorporate the military into the game. As mentioned, the military is often left out of formal approaches to reversal.30 Such accounts usually cannot account for a veto-type player in a standard two-player game. This does not fit with the reality on the ground in most countries where the support of the military is crucial for a successful reversal. In addition, this rational choice account explicitly considers the costs of a reversal move. Rather than ignoring such costs or assuming they are subsumed in the reversal payoff, this approach allows for an explicit accounting for costs through the payoff received for a failed reversal. Actors understand failure may result in punishment such as jail or death, so it seems sensible to include it in their payoff calculation. Further, we include the costs of the fight. It is unreasonable to assume that the share of goods will remain the same and only the distribution of those goods will change following a regime change. There are a variety of costs involved in a regime change. One set of costs would include things such as the 30  Youssef Cohen, Radicals, Reformers, and Reactionaries: The Prisoners’ Dilemma and the Collapse of Democracy in Latin America (Chicago: University of Chicago Press, 1994).

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destruction of infrastructure and the loss of lives (and supporters). Another would include costs associated with sanctions brought to bear by countries or (international) organisations in an attempt to reverse the regime change or express their opposition to such an event. Finally, the payoffs required to gain the support necessary (e.g. from the military) to achieve a successful regime change can be included here. This avoids the assumption that the winner would simply gain total control of the new regime’s resources. All of these costs help us achieve a much clearer picture of the perceived benefits of supporting a regime change. They also take us a good deal further in understanding how actors compare the benefits of different regimes. Rather than simply examining what portion of goods they receive under democracy and then comparing that to what would happen if they were in charge of everything, the rational choice account proposed here helps us uncover a more nuanced understanding of an actor’s decision-­ making process. It should help increase our understanding of why regime change may not occur even when the benefits they receive under a democratic regime may be much lower than the commonly understood benefits of a new regime. This approach may also serve to explain how actors in a potential reversal game are sometimes able to overcome the incentive to defect. Such situations are most commonly framed as a Prisoner’s Dilemma where the incentive for mutual defection results in lower payoffs than if both sides chose to cooperate.31 The most basic means for overcoming such incentives are iteration or the creation of enforceable agreements.32 In terms of iteration, Colomer argues transition games do not normally involve iteration because they are truly single-shot situations. For him, democratic openings in authoritarian regimes are once-in-a-generation-type events. Reversal games, on the other hand, take place in an iterated environment. Players that choose to cooperate continue to play the democracy game but will be faced on numerous occasions (think common structural approach triggering-events or cumulative effects of context-specific conditions) with the decision to continue to the game or defect. The rational choice account advanced in this chapter helps to explain the benefits of such iterations by incorporating the notion of democratic uncertainty into actors’

 See, for example, ibid.   Josep Maria Colomer, Strategic Transitions: Game Theory and Democratization (Baltimore, MD: Johns Hopkins University Press, 1971), 48–53. 31 32

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calculations. This is a distinct advantage over existing rational choice accounts that most commonly treat these situations as single-shot games. The rational choice account introduced in this chapter also helps explain the existence of second mechanism for overcoming the incentive to defect: enforceable agreements. Here the idea is that threats of sanctions and the costs associated with such sanctions (by international organisations, individual countries, or groups of countries) may provide a means of enforcing agreements to cooperate. If such threats are credible and are costly enough, they may deter defection in situations where examining payoffs alone might lead one to assume actors will defect. In addition to helping to provide a more complete picture of democratic reversal, this rational choice account should also be useful in explaining democratic backsliding. This occurs in countries that have experienced at least one generally free and fair election (with some core level of political rights) where the actors currently in control of government attempt to undermine, to varying degrees, the democratic rules of the game, without making an outright move to subvert the democratic regime. This is the problem the democratisation literature refers to as backsliding (or stalled transitions) in countries that have not yet consolidated and appear to be experiencing negative momentum from consolidation. The textbook example of this issue is seen in the Latin American literature’s treatment of autogolpe cases. For the rational choice account to be of use in examining potential backsliding cases, we assume that actors considering their payoffs would presume that winning under authoritarianism would provide a larger payoff than winning under democracy because the distributional demands of outside actors are more easily dealt with under authoritarianism (easier to use force, fewer rights, and freedoms) than they are under democracy. Likewise, they would assume that the downside protections they receive under democracy would be greater than what one would expect to receive on the losing side in an authoritarian system (because of a core set of rights). Given these assumptions, when would actors attempt a backslide move? Here we are only talking about actors currently in the winning position in a democracy. Such actors have to consider the probability of success, as well as the potential costs, of a backslide move. The motivation for an actor to backslide is thus to move the payoff they receive under democracy closer to the payoff they would receive under authoritarianism. Actors will be deterred from such a move if the probability of success is low and/or if the potential costs are high. There will be no backsliding if the costs of

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such a move exceed the expected increase in the winning payoff (as compared to the present). Likewise, actors must compare the probability of a successful backslide with the effects it will have on their probability of winning the next election. Presumably, in addition to being motivated by the potential to increase their winning payoff, they are also motivated by a desire to increase the probability they will win the next election. However, while manipulating the rules may provide you with the technical means of increasing this probability, it also runs the risk of alienating the support underlying the current margin of victory.

Conclusion The explicit inclusion of democratic uncertainty into the decision-making of actors in transition settings has the advantage of more clearly articulating the reasons behind choices such actors make during the democratisation process. Specifically, it offers the potential for a better understanding of why actors may continue to support such a transition or may remove support for the democratic regimes. In addition, the effort to make explicit the role of democratic uncertainty should aid in our understanding of the potentially mutually reinforcing relationship between democratisation and transitional justice. This book sets out to explicitly examine the influence that ameliorating factors may have on transitional justice. The structure of society, in the form of legal and political institutions, is an important example. The distribution of power between supporters of the old and new regimes, in particular the military, is also included. This chapter argues that such conditions affect not just the potential for success of transitional justice but also support for and stability of the transitional democratic regime. The question then becomes what can be done to address poor contextual conditions. Throughout the rest of this volume, a variety of ameliorating factors are examined—mechanisms or strategies for overcoming these potential barriers. These amelioration efforts not only boost the chances for success of transitional justice but also increase the chances the transitional regime may survive and flourish. This chapter argues the mechanism for understanding why is democratic uncertainty. The reason for this is the argument that people are NOT indifferent to regime type. Whether acknowledged or not, many who work in the areas of both transitional justice as well as democratisation hold a normative belief in the value of democracy. Rather than ignore this assumption, I

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argue that democratic uncertainty helps us understand why it is important and why it should be included in our analyses. If people were indifferent to the type regime in which they live, support for a given regime would be a strict net benefit calculation—can I get more out of a new, nondemocratic regime that I receive under the current one? But we know that democracy sometimes survives, and even thrives, under very poor (preexisting) conditions. Likewise, democracy can falter where people seem relatively well-off. This chapter challenges this kind of simple (economic) calculation by drawing on the potential strength underlying democracy— by articulating the pro-democracy assumption. At its core, the strength is to allow for change. To allow wars to be fought with ballots not bullets. But then we know all democracies are not the same, particularly in transitional settings. So the framework proposed in this chapter allows for the level of this democratic uncertainty to vary and for the perception of this variance to affect how one calculates their regime support. How then do we get to the mutually reinforcing relationship between transitional justice and democratisation? From one perspective, broader efforts to bolster democratic uncertainty in transitional settings will aid transitional justice initiatives. Initiatives for institutional reform in the judiciary and electoral realms, anti-corruption drives, and actions to assert civilian control over the military are examples that affect democratic uncertainty. They are also preconditions that negatively influence the potential for success of transitional justice. Thus, increasing democratic uncertainty also improves the potential for transitional justice. It is worth noting that if democratic uncertainty can vary, so can efforts to ameliorate the context that challenges transitional justice. So, future research in this area should focus on the variance in effectiveness of such efforts, not simply whether or not they exist. The other side of the reinforcing relationship coin is that transitional justice initiatives clearly influence people’s perceptions regarding democratic uncertainty. The human rights abuses of past regimes are highly salient, maybe even more so than the short-term fluctuations in issues such as standard of living. As such, successful transitional justice should bolster such perceptions. If past powerful actors can be brought to justice, surely that is an indication that there is a possibility to change the system through democratic electoral mechanisms. On the other hand, if transitional justice initiatives flounder or fail, this would seem to be a highly salient example of how democratic uncertainty is low—bad and powerful actors from the past cannot be reined in through the new mechanisms of democracy.

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Therefore, an understanding of democratic uncertainty helps us understand the mutually reinforcing relationship between transitional justice and democratisation.

Bibliography Alexander, Gerard. “Institutionalized Uncertainty, the Rule of Law, and the Sources of Democratic Stability.” Comparative Political Studies 35, no. 10 (2002): 1145–1170. Arthur, Paige. “How ‘Transitions’ Reshaped Human Rights: A Conceptual History of Transitional Justice.” Human Rights Quarterly 31, no. 2 (2009): 321–367. Cohen, Youssef. Radicals, Reformers, and Reactionaries: The Prisoner’s Dilemma and the Collapse of Democracy in Latin America. Chicago: University of Chicago Press, 1994. Colomer, Josep Maria. Strategic Transitions: Game Theory and Democratization. Baltimore, MD: Johns Hopkins University Press, 2000. Dahl, Robert Alan, Ian Shapiro, and Grant Reeher. Polyarchy: Participation and Opposition. New Haven: Yale University Press, 1971. El-Masri, Samar, Tammy Lambert, and Joanna R.  Quinn, Introduction, 2020 (This book). Kritz, Neil J. “The Dilemmas of Transitional Justice.” In Transitional Justice: How Emerging Democracies Reckon with Former Regimes, edited by Neil J.  Kritz. Washington, DC: United States Institute of Peace, 1995. Linz, Juan J. “Transitions to Democracy.” Washington Quarterly 13, no. 3 (1990): 143–164. O’Donnell, Guillermo. “Illusions and Conceptual Flaws.” Journal of Democracy 7, no. 4 (1996): 160–168. O’Donnell, Guillermo A., Philippe C.  Schmitter, and Laurence Whitehead. “Introducing Uncertainty.” In Transitions from Authoritarian Rule: Prospects for Democracy, edited by Guillermo A. O’Donnell, Philippe C. Schmitter, and Laurence Whitehead. Baltimore: Johns Hopkins University Press, 1986. Przeworski, Adam. Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America. Cambridge; New  York: Cambridge University Press, 1991. Przeworski, Adam. “Some Problems in the Study of the Transition to Democracy.” In Transitions from Authoritarian Rule: Comparative Perspectives, edited by Guillermo O’Donnell, Philippe C.  Schmitter, and Laurence Whitehead. Baltimore: The Johns Hopkins University Press, 1986. Przeworski, Adam. “Democracy as an Equilibrium,” Public Choice 123, no. 3–4 (2005): 253–273.

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Przeworski, Adam. “Self-Enforcing Democracy.” In The Oxford Handbook of Political Economy, edited by Barry R. Weingast and Donald Wittman. Oxford: Oxford University Press, 2006. Schedler, Andreas. “Taking Uncertainty Seriously: The Blurred Boundaries of Democratic Transition and Consolidation.” Democratization 8, no. 4 (2001): 1–22.

CHAPTER 4

The Importance of Modifying the Context Before Introducing Amnesty and Prosecutions: The Case of Lebanon Samar El-Masri

The Lebanese Civil War ended almost thirty years ago, yet the Lebanese have not come to terms with the past. Justice has not been given to the victims of the war, divisions have persisted, and the rule of law and democratic institutions have remained weak,1 with declining scores on political rights and civil liberties.2 Although many contextual conditions may have contributed to this outcome, and various broad and targeted ameliorating factors may have to be introduced to improve the context, this chapter makes two arguments. First, it explains how a balanced amnesty law may 1  The report gives Lebanon a 4.71/10 in 2017 on democratic governance. See The Economist Intelligence Unit, “The Economist Intelligence Unit’s Democracy Index,” The Economist, 2017, accessed 2018, https://infographics.economist.com/2018/DemocracyIndex/. 2  See “Freedom in the World 2018: Democracy in Crisis,” Freedom House, accessed November 2018, https://freedomhouse.org/report/freedom-world/freedom-world-2018.

S. El-Masri (*) The University of Western Ontario, London, ON, Canada Dalhousie University, Halifax, NS, Canada © The Author(s) 2020 S. El-Masri et al. (eds.), Transitional Justice in Comparative Perspective, Memory Politics and Transitional Justice, https://doi.org/10.1007/978-3-030-34917-2_4

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ameliorate the existing context, contributing to a successful process. Second, it argues that subsequent prosecutions may lead to the reinforcement of the rule of law, accountability, and deterrence, if targeted actions are done to improve and safeguard the independence and impartiality of the national courts, at an earlier stage.

Lebanon and Transitional Justice After the Civil War Since its creation by the French in 1920, Lebanon has been a “patchwork of minorities”3 with eighteen recognised religious groups: five Muslim, twelve Christian, and one Jewish.4 The history of their relationship has been turbulent. By 1975, the country—along with its army—was divided between the predominantly Christian right, led by the Lebanese Front, and the predominantly Muslim left, headed by the Lebanese National Movement.5 The political confrontation led to an all-out war, leaving 2.7% of the population killed, 4% wounded, 30% displaced, and numerous victims of gross violations of human rights from killing and enforced disappearance to rape and torture.6 It took fifteen years to end the violence with the 1989 Ta’if Agreement (also known as the Ta’if Accord or the Document of National Accord).7 The Ta’if Agreement dealt with three main areas of contention between the Lebanese—namely, political reform, sovereignty, and the Syrian 3  Edward Azar, The Management of Protracted Conflicts (Brookfield, Vermont: Dartmouth Pub Co, 1990), 41. 4  Imad Salamey and Rhys Payne, “Parliamentary Consociationalism in Lebanon: Equal Citizenry vs. Quoted Confessionalism,” The Journal of Legislative Studies 14, no. 4 (Dec 2008), 453. 5  As the war progressed, other parties joined the coalitions. On the Christian side, there was Gemayel’s Phalange party, Geagea’s the Lebanese forces (LF), Chamoun’s Free Nationalists. On the other side, were Jumblat’s Progressive Socialist Party (PSP), the Shiite Amal party, the Syrian Social National Party, and so on. See Paul A.  Jureidini and R.D. Mclaurin, “Lebanon after the War of 1982” in The Emergence of a New Lebanon, ed. Edward Azar (Connecticut: Praeger Publishers, 1984), 12. 6  “Failing to Deal with the Past: What Cost to Lebanon,” International Center for Transitional Justice, January 2014, accessed January 2014; https://www.ictj.org/sites/ default/files/ICTJ-Lebanon-Impunity-Report-2014.pdf. 7  Although the official title of the agreement is spelled “Taif,” all references within the agreement are spelled “Ta’if” and I have opted to spell it this way throughout this chapter for consistency.

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­ resence in Lebanon. It called for the withdrawal of the Syrian army from p Lebanon, upheld the consociational status quo (but changed the privileges attached to the state’s top seats), and changed the composition of the Parliament to better reflect the demographic reality. The Ta’if Agreement also called for various measures to reach its objectives of strengthening the rule of law and democratic institutions, as well as consolidating peace and reconciliation. It proclaimed the abolition of political sectarianism as a national objective that should be achieved through a phased plan. It stipulated that a good start would be to hire public servants, based on capability and skill rather than religious affiliation—in all sectors except for the top-level positions that should be equally shared between Christians and Muslims. In addition, the agreement provided for “extracting the mention of sect and denomination on the identity card,”8 especially when numerous victims lost their lives on checkpoints during the war as a result of belonging to the “wrong” sect. The Ta’if Agreement also called for revising and developing the school curricula “in a manner that strengthens national belonging, fusion, spiritual and cultural openness, and that unifies textbooks on the subjects of history and national education.”9 As for addressing the war’s past abuses through “judicial” or “non-­ judicial” measures, the Ta’if Agreement was largely silent, despite its call for disbanding all Lebanese and non-Lebanese militias and enlisting their fighters in the Lebanese Army. It was the amnesty law, passed by the Lebanese Parliament in 1991, that clearly told us how the Lebanese leaders chose to deal with the abuses of the civil wars. The amnesty law and the subsequent prosecutions in the mid-1990s will be discussed later. Since the end of the Civil War, Lebanon has lived in “cosmetic peace.”10 The 1990s witnessed the continuance of the Israeli occupation of the south, and direct Syrian domination over politics, bolstered with its wide military presence, which lasted until 2000 and 2005, respectively. There was no real effort to strike a true partnership between the Lebanese elites or reinforce reconciliation efforts among the citizens. There was also a 8  The Taif Agreement (1989) (United Nations Permanent Missions), accessed April 2018, https://www.un.int/lebanon/sites/www.un.int/files/Lebanon/the_taif_agreement_english_version_.pdf; sec. G(b). 9  Ibid., sec. F. 10  Samar El-Masri, “Cases in Power Sharing and Social Transformation,” (Ph.D. diss.) (London, Canada: The University of Western Ontario, 2004), 43.

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growing feeling of intimidation and repression, especially among the Christian opposition. Then, in 2005 things appeared to be changing. On 14 February 2005, the former Prime Minister, Rafic Al-Hariri, was assassinated in downtown Beirut, and with that a new chapter in Lebanon has unfolded. The assassination angered thousands of Lebanese, who descended to downtown Beirut to voice their anger against the pro-Syrian government, and demanding the withdrawal of the Syrian Army and finding the truth about what led to the murder. Soon afterwards, a “counter” demonstration of a comparable number made their own sit-in, in a neighbouring square, in support of the government and Syria. This social division mirrored the new political alliances or coalitions that emerged soon afterwards highlighting the new cleavage in Lebanese society—the Shia/ Sunni divide—despite the apparent multi-religious composition of the coalitions. The first was the 14th of March Coalition,11 which mainly involved Hariri’s Future Movement, the Walid Jumblat’s Druze Progressive Socialist Party, Amin Gemayel’s Phalange Party, and the Christian Lebanese Forces of Samir Geagea—who was serving life sentences for warrelated political assassinations and was released after the Syrian withdrawal from Lebanon. The second was the 8th of March Coalition, which was led primarily by the Shi’a duo, Hezbollah and Amal, and later joined by Michael Aoun’s Free Patriotic Movement (FPM). These coalitions did not perceive Hariri’s assassination in the same light or agree on the best course of action to follow. It was the 14th of March Coalition, however, that insisted—apart from the military Syrian withdrawal and the resignation of the pro-Syrian president and government— on the establishment of an international tribunal to try the accused in the Hariri murder. Thus, after winning a simple majority in the parliament, their government accepted the Security Council’s presidential statement that considered the assassination a “terrorist act,” and issued two requests to the Security Council: one asking for the establishment of an investigation commission and another to establish a court of international character.12 Both requests were accepted, eventually leading to the establishment of the Special Tribunal for Lebanon (2009 to date) under Chapter VII of

 The coalitions were named after the dates of their biggest public rallies in Beirut.  Samar El-Masri, “The Hariri Tribunal: Politics and International Law,” Middle East Policy 15, no. 3 (2008), 80–92. 11 12

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the United Nations Charter, after the failure of the Lebanese parliament to ratify the bilateral agreement.13

Lebanon: Challenging Context and Necessary Ameliorating Factors In the 1990s—a stage coinciding with the application of the Ta’if Agreement—academics embarked on a major debate about the best way for societies to deal with past human rights abuses.14 In this context, important questions were asked: Does holding perpetrators accountable outweigh the need for calm? Can a functioning bureaucracy be formed after lustration, when there may be few remaining competent administrators? Is justice understood as allocating individual responsibility a prelude to peace, or should forgiveness be the more appropriate path?15 The “justice” advocates, especially the United Nations and leading non-­ governmental organisations, emphasise the prosecution of international crimes as moral and legal duty to deter the recurrence of those crimes, honour the victims’ right to seek justice, restore the rule of law, and reinforce peace through individualising guilt in criminal leaders.16 However, a group of scholars took a different position—one that was also adopted by a number of states—prioritising the attainment of peace before justice.17 Amnesty, rather than prosecution, was then promoted as a valuable transitional justice mechanism.18 Prosecutions, they argue, may not only

13  United Nations Security Council, “Resolution 1644,” S/RES/1664(2006) (New York: United Nations Security Council, 2006). 14  Kenneth A. Rodman, “Peace Versus Justice,” Encyclopedia of Global Justice (Dordrecht: Springer, 2011), 824–827. 15  Nir Eisikovits, “Peace Versus Justice in Transitional Settings,” Quinnipiac Law Review 32 no. 3 (2014), 221–236; see also Bronwyn Anne Leebaw, “The Irreconcilable Goals of Transitional Justice,” Human Rights Quarterly 30, no. 1 (Feb 2008), 97. 16  For more clarification on this trend, see Charles P. Thrumbull IV, “Giving Amnesties a Second Chance,” Berkeley Journal of International Law 25 no. 2 (2007), 284–345. 17  This was seen, for example, when the ICC issued an arrest warrant against Omar Al Bashir of Sudan. The African Union feared that this may intensify the conflict and that efforts by the international community should focus on peace and resolving the Darfur conflict before justice. See Mary Kimani, “Pursuit of Justice of Western Plot,” Africa Renewal, accessed May 2019, https://www.un.org/africarenewal/magazine/october-2009/ pursuit-justice-or-western-plot. 18  Thrumbull, “Giving Amnesties a Second Chance,” 306–314.

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threaten negotiations and push warring factions back to conflict,19 but may also complicate the situation further by issuing lenient sentences, plea bargaining, and acquittals for the lack of evidence, by excluding external actors from prosecution, and by fuelling reprisal killings.20 This chapter does not seek to itemise the pros and cons of the above arguments, but simply points to the importance of the stage that precedes the launch of the transitional justice mechanism of choice. Think of this stage as the solid base that transitional justice is built on; if it is shaky or simply not there, the whole process may collapse, or proceed in a negative unintended direction. Looking at this stage in the Lebanese case helps us understand the importance of introducing ameliorating factors to modify a context that may “spoil” the transitional justice process, or shore it up by introducing mechanisms to bolster this process. I argue that although many leaders in transitional countries and some scholars may prefer amnesties to other transitional justice mechanisms, as it may be more conducive to “peace,” this may not always be the case. Of course, a non-­discriminatory application of the law is key, but if the law itself is flawed and unbalanced, the transitional justice process will be negatively affected. This is discussed next, before talking about other ameliorating factors that may reinforce prosecutions and the transitional justice process in general. The Importance of a Balanced Law as an Ameliorating Factor The Lebanese Amnesty Law No. 84/91 (26 August 1991), which covers all political and wartime crimes prior to 28 March 1991, is compatible with the times. As Teitel explains, the 1990s marked the beginning of the second phase of transitional justice evolution that moved towards adopting “a broader amnesty policy with the aim of reconciliation,” and a move towards hearings and confessional testimonials.21 According to Rodman, even the dominant approach towards peacemaking by the UN was to strike a broad consensus behind a negotiated settlement, which often included leaders with blood on their hands. This is accompanied by the deployment of peacekeeping missions as a confidence-building measure between the warring parties—examples include Namibia, Mozambique, Haiti, and El  Rodman, “Peace Versus Justice,” 824–827.  Leebaw, “The Irreconcilable Goals of Transitional Justice,” 110–114. 21  Ruti G. Teitel, “Transitional Justice Genealogy,” Harvard Human Rights Journal 16, no. 1 (Jan 2003), 83. 19 20

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Salvador.22 The same pattern was seen in transitions from dictatorship or repressive rule to democracy, as the success of the process often depended on the cooperation of leaders associated with past abuses, even when this was accompanied by non-retributive truth-seeking forms of transitional justice, like South Africa’s Truth and Reconciliation Commission. Various scholars point to the appropriateness of amnesties as a tool when countries are either ill equipped to prosecute criminals and/or have more pressing economic problems to deal with, making the societal demand for accountability less visible.23 An amnesty is especially an option when the line between victims and perpetrators is blurred, and when predecessor regimes still maintain strong influence, thus increasing the chances of spoilers to meddle in the peace process if prosecution was put on the table.24 This may contribute to stability and peace by transforming amnesty into a tool in the hands of mediators to lure warring elites into the negotiation table, and by facilitating reconstruction, as the government may then focus on maintaining law and order, rebuilding, and carrying on with its reforms. The decision makers in Lebanon deemed an amnesty appropriate to ensure a prolonged cessation of fighting. In their view, it was needed to maximise the ability of the Ta’if Agreement to move the country into a more stable environment, without threats of prosecution, especially when no political solution was possible without the cooperation and the acceptance of the main leaders in Lebanon, most of whom were responsible for human rights abuses and violations during the war. In other words, while amnesty may not achieve some of the objectives of transitional justice as described in this volume, specifically accountability or establishing the rule of law, it can be looked at as a useful tool to reinforce stability and peace. It was hoped that the passage of the amnesty law would provide the Lebanese leaders with a clean slate, and the Lebanese with a new chance to live in peace without division. But amnesty can be much more than that. A balanced amnesty law may help address two problems resulting from a civil war  or the fall of a repressive regime: the cloak of secrecy that shrouds the abuses of the past 22  Bringing those leaders to justice would require a military solution that the UN was not keen to provide. Rodman, “Peace Versus Justice,” 826–827. 23  Thrumbull, “Giving Amnesties a Second Chance,” 285. See also Tricia D. Olsen, Leigh A. Payne, and Andrew G. Reiter, “The Justice Balance: When Transitional Justice Improves Human Rights and Democracy,” Human Rights Quarterly 32, no. 4 (Nov 2010), 991–996. 24  Thrumbull, “Giving Amnesties a Second Chance,” 285.

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and/or militarisation. It should not be a free pass for people with blood on their hands, but an incentive. It should be done in exchange for demilitarisation and demobilisation, and for finding the truth about what happened during the time of atrocity. For this reason, an amnesty law can become an ameliorating factor if it is balanced and applied without discrimination. It follows that some sort of accountability measures should accompany the general pardon of the warring leaders. Four elements of the law are specifically important in this context: excluding jus cogens crimes from the amnesty; including measures to restrict or undermine militias; including measures to bring some sort of justice to the victims; and avoiding language that makes these pardons final. First, the law must exclude jus cogens crimes (i.e. war crimes, crimes against humanity, and genocide) from a general pardon. As Jose Zalaquett explains, “international law imposes certain limits to the discretion states have on dealing with human rights abuses.”25 Although some are still up for debate, other limits are clear, stemming from the obligation of states to respect international customs and jus cogens norms. As Cherif Bassiouni explains, in these cases, states have an obligation to extradite or prosecute the perpetrators, waive immunities, and the “obedience to superior orders” defence, and exclude them from statutes of limitations or excuse them based on a “state of emergency.”26 The Lebanese Amnesty Law was deeply flawed on this front, as it exempted all international crimes from prosecution, but included less severe ones to be tried by the Justice Council. According to Article 3 of the Lebanese Amnesty Law, crimes against external state security, crimes sent to courts before the law had come into force, fraud and bankruptcy, forgery of foreign or domestic currency and its sale, forgery of official documents, and crimes relating to the theft of antiquities were all prosecutable.27 Article 3.3 went further to exclude political 25   Jose Zalaquett, “Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints,” in Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Vol. 1, ed. Neil J. Kritz (Washington DC: United States Institute of Peace, 1995), 14–15. 26  Since the 1990s, the jurisprudence of the international courts confirmed that trend in the Prosecutor V.  Furundžija (ICTY Trial Chamber) and in invalidating an amnesty law granted by the Lomé Agreement of the Special Court for Sierra Leone. See Juan Carlos Portilla, “Amnesty: Evolving 21st Century Constraints under International law,” The Fletcher Forum of World Affairs 38, no. 1 (Winter 2014), 178. 27  “Lebanon: Human Rights Developments and Violations,” Amnesty International, 1997, accessed February 2019; https://www.amnesty.org/download/Documents/164000/ mde180191997en.pdf.

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crimes from amnesties, creating an awkward categorisation of crimes, perpetrators, and victims. It signals that assassinating political and religious figures and/or foreign diplomats carried more gravity than international crimes,28 and that influential, often rich, victims deserved justice but not ordinary citizens.29 Second, a balanced law should include measures to restrict or undermine militias. Geoff Dancy studied the disaggregated data sets of all amnesties after civil wars since 1946 and found that they are the most effective when they are passed or are embedded in peace agreements, not only because warring leaders consider that a signal of commitment, but also because it facilitates the process of disarmament and demobilisation.30 Typically, warring leaders will hesitate to dispose of or hand over their weapons if prosecutions hang over their heads. In Lebanon, the amnesty law did not address this issue, but the Ta’if Agreement that was ratified a few months before did. The agreement called for disbanding all Lebanese and non-Lebanese militias, and the delivery of the militias’ weapons within a period of six months after the ratification of the agreement. But during that time, it became apparent that some “50,000 militia fighters from all denominations had ‘vanished’” with a considerable number of the armaments sold abroad, kept, or hidden in remote areas.31 In this case, the negotiations that preceded the adoption of the amnesty law could have been used as an opportunity to fine-tune the demilitarisation process in exchange for clemency. The result of not addressing and supervising this process appropriately is felt strongly today. Many people, including government officials, argue that most militias kept or hid some of their arms

28  Marieke Wierda, Habib Nassar, and Lynn Maalouf, “Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon,” Journal of International Criminal Justice 5 (2007), accessed 2019, https://academic.oup.com/jicj/ article/5/5/1065/2188968#33833736. 29  Harmen Van der Wilt, “The Legacy of the Special Tribunal for Lebanon,” in The Special Tribunal for Lebanon: Law and Practice, eds. Amal Alamuddin, Nidal Nabil Jurdi, and David Tolbert (Oxford: Oxford University Press, 2014), 279. 30  Geoff Dancy, “Deals with the Devil? Conflict Amnesties, Civil War and Sustainable Peace,” International Organization 72, no. 2 (Spring 2018), 387–421. 31  See Samar El-Masri, “Inter-ethnic Reconciliation in Lebanon after the Civil War,” in Reconciliation(s), Transitional Justice in Postconflict Societies, ed. Joanna R. Quinn (Montreal: McGill-Queen’s University Press, 2009), 274. See also Dima de Clerck, “Ex-militia Fighters in Post-war Lebanon,” Accord Series no. 24 (2012); accessed June 2019; https://www.c-r. org/downloads/Accord24_ExMilitiaFighters.pdf.

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with the intention of using them in future conflicts.32 In addition, Hezbollah, which was originally excepted from this provision under the pretext that it was a “resistance movement” against Israel, eventually morphed into a considerable force with the ability to destroy its internal opponents and hijack Lebanese sovereignty through taking alone the decision of peace or war with Israel. Third, for amnesties to be balanced, the amnesty must be granted in exchange for truth, through including the establishment of a truth-­seeking body or commissions of inquiry. As Mallinder explains, the main goal of these bodies is to investigate the crimes allegedly committed by amnesty-­ seeking individuals, ensure that the crimes alleged are included in the terms of the amnesty law, and ultimately construct a credible body of information about the events that happened during the war, such as the fate of the disappeared.33 In this regard, both the Ta’if Agreement and the 1991 amnesty law represent a missed opportunity.34 Amnesty International notes that the fate of “more than 17,000 people, including 14,000 Lebanese nationals, who ‘disappeared’ during the civil war”35 is still not known. Fourth, amnesties should not be extended on an unlimited basis, that is, prosecutions should be revisited in cases of recidivism, or even postponed to a later time. After studying dozens of cases between 1970 and 2007, Olsen et  al. deduce that trials and amnesties can be made compatible through sequencing, by delaying justice and advocating for it after a better state of the economy and strengthened democratic and judicial institutions take hold.36 At the very least, amnesties should be revoked if the pardoned persons re-commit the crime. Here, a very credible question may be posed about the applicability of this element of an amnesty law, if the re-offender in question holds a position of power whether in the government or outside of it. There is no simple answer. But at a bare m ­ inimum, one can argue that the  Ibid.  Louise Mallinder, “Can Amnesties and International Justice be Reconciled?” The International Journal of Transitional Justice 1, no. 2 (Aug 2007), 208–230. 34  “Failing to Deal with the past: What Cost to Lebanon,” International Center for Transitional Justice, accessed January 2014; https://www.ictj.org/sites/default/files/ ICTJ-Lebanon-Impunity-Report-2014.pdf. 35  “Human Rights Development and Violations,” Amnesty International, 1 Oct 1997, http://www.refworld.org/docid/3ae6a9bb0.html. 36  Uruguay and Argentina, for example, both overturned their amnesty laws as a result of social pressure and civil society activism. See Olsen et al., “The Justice Balance,” 991–996. 32 33

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application or the non-application of this provision should be observed without discrimination on all the parties concerned. In other words, selectively applying this provision risks undermining the transitional justice process, threatening the peace process, and reinforcing divisions. This is an important lesson from the Lebanese experience. Samir Geagea—a vocal opponent of the post-Ta’if government and the Syrian regime—was the only leader to face prosecution for crimes committed during the war, after he was accused of the bombing of the Saidaat al Najaat Church in 1994. Before the conclusion of the investigation, his militia was banned and four additional war-related charges were laid against him; he was found guilty of all four but cleared of the original charge. The process was clearly selective,37 not only because no proper investigation or similar indictment was made in the cases of Kamal Jumblatt (assassinated in 1977), Bashir Gemayel (assassinated in 1982),38 and Hassan Khaled (assassinated in 1989), but also because the crimes of which he was accused were not investigated by the Justice Council until years later, when Geagea was arrested.39 Finally, it was not only the head  The criticism of this law and its selective implementation was also voiced by another group of Lebanese, namely the families of former members of the South Lebanon Army (SLA)—a militia that was in charge of the Khiyam Detention Centre and the “security zone” established following the Israeli 1978 invasion of Lebanon, and that continued until the Israeli withdrawal in 2000. A November 2011 parliamentary law recognised the right of these families living in Israel and abroad to return home, but insisted that SLA members who collaborated with Israel would still have to face trial. This decision angered the group, as they felt that they were not granted the same concessions as other factions in the war, especially when the stigma of “collaborators” still hangs over their heads. See “Lebanon: Human Rights Development and Violation,” Amnesty International, 1997, https://www.amnesty. org/download/Documents/164000/mde180191997en.pdf. 38  It is true that after Gemayel’s assassination, Habib Shartouni, a member of the Syrian Social Nationalist party was apprehended by LF, confessed, handed over to the Lebanese authorities, and served few years in prison until his escape in 1990, but Nabil Alam, the mastermind of the operation, vanished. Both were reportedly living in Syria—at least for a period of time—and should have been handed over to the Lebanese authorities after the war, if amnesty laws are to be applied fairly. This did not happen. It was only in 2017 that the Justice Council sentenced them both to death in absentia. See Bassem Mroue, “Lebanon issues Death Sentences in 1982 killing of president,” Fox News, accessed 20 October 2017, https:// www.foxnews.com/world/lebanon-issues-death-sentences-in-1982-killing-of-president. 39  The case of Dany Chamoun was referred to the Justice Council in 1990 but was only investigated four years later. See “Lebanon: Samir Gea’gea’ and Jirjis al-Khoury: Torture and Unfair Trial,” Amnesty International, accessed November 2004, https://www.amnesty. org/download/Documents/100000/mde180032004en.pdf. 37

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of the Lebanese Forces (Geagea) that was prosecuted and silenced, but other regime opponents and their supporters as well.40 Ultimately, as Amnesty International’s report explains: What separates certain warlords (who are pursued by justice) from others (who have become the guarantors of the rule of law) is not so much the nature of their crimes as their respective positions in a postwar system, which, without admitting it, distinguishes between winners and losers.41

The Lebanese experience teaches us through its failure the importance of the missing elements in the amnesty law that could have made—if present—a positive ameliorating difference in the transitional justice process, specifically in the areas of peace and reconciliation. Having a flawed amnesty law that included all international crimes but excluded political ones, that was not accompanied by any measures to at least unearth what happened to the thousands of people that went missing during the war, and that was not used to consolidate the demilitarisation and demobilisation process was detrimental to the transitional justice process. This was especially the case when the recidivism provision was utilised as a political tool to reward allies and punish foes in the implementation stage. The Importance of Reforming The National Courts National courts have a central role to play if prosecution is the transitional justice mechanism selected in a certain case. Even if international courts are also used, these courts usually have only a limited jurisdiction and mandate, with their prosecutions restricted to those who are most responsible for the crimes, and then only after national courts fail to prosecute (the complementarity principle). What is more important is that unlike 40  Very similar treatment was also directed against the supporters of General Michael Aoun, who was living in exile in France since his military defeat by the Syrians in 1990. A Human Rights Watch reported that a 1992 distribution of leaflets in support of Aoun and critical of President Hirawi and Syria not only led to the arbitrary arrest and detention of scores of civilians but to the referral of the case to the military court, which sentenced most to years in prison. In Hikmat et  al., the case before the military court all defendants were civilians. Women detainees have also reported ill treatment and rape while in detention but the court did not look into her allegations and passed a judgement based on her confession. See also “Lebanon,” Human Rights Watch 1994, https://www.hrw.org/reports/1994/WR94/ Middle-08.htm#P460_235890. 41  “Lebanon: Human Rights Development and Violation,” Amnesty International.

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international courts, national courts are permanent, tasked with upholding the rule of law “by conferring impersonality, legitimacy, and to some extent stability on the political structure of the nation state.”42 They are also needed to ensure that accountability and deterrence are sustainable, and that peace is safeguarded by taking revenge or retribution from the hands of people and elites.43 For this reason, national courts, even when they are not specifically involved in the transitional justice process, are of great importance as well. As Bahdi and Kassis point out in this volume, this is an area that has received insufficient attention by transitional justice scholars and practitioners, despite its major impact on the transitional justice process and the stages that follow it. Efforts should be taken to ensure that the independence and the impartiality of these courts are developed and safeguarded. The impartiality and independence of the courts are interconnected but they do not refer to the same thing.44 As Vicki Jackson explains, impartial judges should have attitudinal features or willingness to decide against the government and hearing cases away from favouritism and corruption, they should be competent with appropriate knowledge and training in law, and constitutionally protected from improper influence.45 As for judicial independence, Amann explains: It refers chiefly to institutional design; that is to what has been called “structural independence,” from other governmental entities, to “freedom from interference.” It encompasses matters such as judges’ financial and job security.46

42  Muna B. Ndulo and Roger Duthie, “The Role of Judicial Reform in Development and Transitional Justice,” International Centre for Transitional Justice, July 2009, accessed June 2019; https://www.ictj.org/sites/default/files/ICTJ-Development-JudicialReformResearchBrief-2009-English.pdf. 43  Ibid. 44  “International principles on the Independence and Accountability of Judges, Lawyers and Prosecutors,” International Commission of Jurists 2007, http://www.refworld.org/ pdfid/4a7837af2.pdf. 45  Vicki C.  Jackson, “Judicial Independence: Structure, Context, Attitude,” in Judicial Independence in Transition, ed. Anja Seibert-Fohr (London: Springer, 2012), 20–21. 46  Diane Marie Amann, “Impartiality Deficit and International Criminal Judging,” in Atrocities and International Accountability: Beyond Transitional Justice, eds. Edel Hughes, William A.  Schabas and Ramesh Thukur (Japan: United Nations University Press, 2007), 220.

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The Special Rapporteur on the independence of judges and lawyers states that the principle of the separation of powers “is the bedrock upon which the requirements of judicial independence and impartiality are founded.”47 It is in this context that judicial institutions can truly pose a check to the government, and contribute to legitimacy and the rule of law.48 It is also the case that when judicial independence exists the chances of adopting a meaningful transitional justice increases. In theory, the right of fair trial and equality before the law is enshrined in dozens of regional and international treaties ratified by Lebanon.49 The constitution also emphasises the principle of separation of powers and judiciary independence.50 This independence should be practised by judges and litigators at all levels of the court system, whether it is ordinary,51 religious, or specialised (e.g. military courts, Judicial Council, High Judicial Council (HJC), the Constitutional Council, State Council Bureau among others). The practice tells a different story, however, as the judiciary after the Civil War continued to be subordinated to the executive branch, compromised by consociational sectarian Lebanese customs, and plagued by the corruption of a considerable number of its judges. This reinforced the already poor public perception of the national courts and compromised their ability to bring true justice to the victims. One of the major problems of the Lebanese judiciary is its subordination to the executive, which is responsible for its budgeting and appointments.52 Thus, the Council of Ministers refers cases to the Justice Council, 47  “International principles on the Independence and Accountability of Judges, Lawyers and Prosecutors,” International Commission of Jurists 2007, http://www.refworld.org/ pdfid/4a7837af2.pdf. 48  Ryan Salzman and Adam Ramsey, “Judging the Judiciary: Understanding Public Confidence in Latin American Courts,” Latin America: Politics and Society 55, no. 1 (Feb 2013), 74. 49  These range from the 2004 Arab Charter on Human rights to the International Covenant on Civil and Political Rights, and the International Covenant on Social, Economic and Cultural rights reaching the Convention on the Elimination of all Forms of Racial Discrimination and the Convention on the Elimination of all Forms of Discrimination Against Women, among others. 50  Government of Lebanon, The Lebanese Constitution (1926), sec. E, Preamble. 51  Ordinary courts have general jurisdiction over civil and criminal cases. Lebanon also has religious courts that decide on cases of personal status. Each religious confession has its own court. 52   United Nations Human Rights Committee, “UN Human Rights Committee: Concluding Observations: Lebanon,” Refworld, 5 May 1997, http://www.refworld.org/ docid/3ae6b03214.html.

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and appoints its members,53 as well as the judges to certain first rank positions, and eight out of the ten members of the High Judicial Council (HJC).54 The HJC is central to the Lebanese justice system because it is tasked with ensuring judiciary independence, and managing judicial affairs, including preparing the list of judicial appointments, permutations, and delegations—pending the approval of the Minister of Justice. This transformed it into a “Trojan horse that allows the political and sectarian regime to infiltrate the judiciary,”55 and it is especially problematic that no appointments can really take effect without the signatures of the President, Prime Minister, and the Minister of Justice.56 The effectiveness of the court is additionally undermined when one throws the consociational political system and the country’s religious makeup into the mix. Thus, in addition to the establishment of a religious court for every sect,57 with no government oversight, proportionality also has to be observed in the judicial branch. This opens the door widely to the practice of clientelism, which is pervasive. Sectarian leaders—hiding behind “the interest of their sect” reasoning—demand their share of the judiciary, often lobbying “for the appointment of judges close to them for important duties, without properly taking into account their respective capabilities and skills.”58 In 2002, for example, it was Judge Nasri Lahoud, the brother of the President of the Republic, who was appointed as President of the HJC. Of course, other parties would not have endorsed such an appointment if they did not get a share of the patronage pie as well.59 53  “Lebanon: Human Rights Development and Violation,” Amnesty International, 1997, https://www.amnesty.org/download/Documents/164000/mde180191997en.pdf. 54  Maya W. Mansour and Carlos Y. Daoud, “Lebanon: the Independence and Impartiality of the Judiciary,” Euro-Mediterranean Human Rights Network, Feb 2010, https://euromedrights.org/wp-content/uploads/2018/03/LEBANON-The-Independence-andImpartiality-of-the-Judiciary-EN.pdf. 55  Nizar Saghieh, “The Reform of Judiciaries in the Wake of the Arab Spring-Lebanon,” The Reform of Judiciaries in the Wake of the Arab Spring (Copenhagen: Euro-Mediterranean Human Rights Network, 2011); 85. 56  This is problematic because the President is a Maronite and the Prime Minister is a Sunni, and it is often the case that their interests are not aligned, stopping appointments until the person in question gets what he wants. 57  Lebanon has more than 15 personal status laws. 58  Mansour et al., “Lebanon: the Independence and Impartiality of the Judiciary.” 59  In fact, disagreements over appointments often arise leading to the paralysis of the system. This was the case between 2006 and 2008, when 100 young graduate judges of the

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But the independency of the national courts should go hand in hand with their impartiality. In Lebanon, courts are often presided over by judges that are corrupt and influenced by politicians or influential figures. Many accept bribes at any stage of judicial proceedings to delay or accelerate cases, decide in a case in favour of the highest bidder, or confirm/ reverse a decision.60 “Wasta” or the practice of resorting to a “connection,” usually from a politician, to sway the judge’s decision in a certain way, is also common. All of this hindered the ability of the national courts to play a meaningful role not only during the transitional period after the Civil War, but also in the decades that followed. Reports from UN agencies and human rights NGOs accuse the Lebanese courts of disregarding the international standard of fair trial, and engaging in unlawful, arbitrary, and extended detention without due trial.61 They criticise the courts for undertaking unfair trials of political prisoners, improper judicial investigation of torture while in custody. They also point to the expansion of the number of offences carrying the death penalty in 1994, and the carrying out of dozens of executions.62 These practices were performed by the military courts, as evidenced by the seven minutes per person trials of 2700 former South Lebanon Army members,63 after the Israeli withdrawal from Lebanon in 2000 that resulted in sentences ranging from several weeks in prison to the death sentence. The structural problems that have plagued the judiciary in Lebanon, its politicisation, and the inability to restrict and punish corruption have not only damaged public confidence, and reinforced the elite’s grip over their groups, but also contributed to the communal division in the country. In short, legitimacy of the Lebanese national courts has been weak and even Institute of Judicial Studies were unable to get appointed to the judiciary that is already understaffed, underpaid, and overworked. “Judicial Appointments to Hariri, LF sidelined by FPM,” The Daily Star, accessed 6 October 2017, https://www.pressreader.com/lebanon/ the-daily-star-lebanon/20171006/281526521264893. 60  Mansour et al., “Lebanon: the Independence and Impartiality of the Judiciary.” 61   United Nations Human Rights Committee, “UN Human Rights Committee: Concluding Observations: Lebanon,” Refworld, 5 May 1997, http://www.refworld.org/ docid/3ae6b03214.html. 62  “Lebanon: Human Rights Development and Violation,” Amnesty International. 63  Immigration and Refugee Board of Canada, “Lebanon and Israel: Treatment of Lebanese who cooperated with Israel during its occupation of Lebanon, including those who stayed in Lebanon after the withdrawal of Israeli troops and those who sought refuge in Israel and obtained Israeli citizenship (2000–2012),” Refworld, 20 April 2012, http://www. refworld.org/docid/505992c62.html.

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lacking. As Wenzel et al. explain, ­“legitimacy derived from public support is particularly important to judicial institutions, because possessed of ‘neither the purse nor the sword’ … they have limited powers.”64 The Lebanese doubt the ability of the courts to resolve conflicts between individuals of rival groups fairly and without political interference. Violent clashes between rival groups are often dealt with by the leaders of the parties themselves, who then decide whether to involve and cooperate with the police and the courts or not. For example, the 2008 clashes resulting from Hezbollah’s takeover of Beirut that left scores of people dead on both sides of the conflict, ended with a political compromise, without investigation and without prosecuting anyone. This is also seen in the way disputes are settled between rival groups within the same sect. After the 2018 Lebanese election, a clash between two rival Druze parties, Jumblat’s PSP and Talal Arslan’s Lebanese Democratic Party, left one PSP member dead. A similar scenario unfolded in June 2019, when this time two aids to the Refugee Affairs Minister Saleh al-­Gharib—an Arslan ally—were shot by Jumblat supporters. In each case, the first step was not police arrests and court appearances, but the issuance of ultimatums, political tensions, followed by political negotiations that were successful in diffusing the situation at the expense of the victim.65 The national courts are not trusted to prosecute in cases of political murders and assassinations either, as they are not seen as a neutral body that can dispense justice, but as another piece in the grand political chess game. Rather, a considerable number of followers and supporters seek divine redemption instead, transforming the political leader from a political-­patron to patron-saint.66 This is evident in their pictures, flags, and banners of support that line their neighbourhoods, and even in public displays of faith as icons, figurines, and religious symbols, reinforcing “inward solidarity and outward displays of unity and purpose.”67 This practice is repeated in almost all the major Lebanese sects, both during 64  James P. Wenzel, Shaun Bowler, and David J. Lanoue, “The Sources of Public Confidence in State Courts,” American Politics Research 31, no. 2 (1 March 2003), 192. 65  The victim was buried and the perpetrator remains at large. For more information about the incident see Asharq Al-Awsat, “Attempts to contain Druze Strike after Escape of Man Accused of Choueifat Crime,” accessed 11 May 2018, https://aawsat.com/english/home/ article/1265181/attempts-contain-druze-strife-after-escape-man-accused-choueifat-crime. 66  Are John Knudsen, “Death of a Statesman—Birth of a Martyr: Martyrdom and Memorials in Post-Civil War Lebanon,” Anthropology of the Middle East 11, no. 2 (2016), 2. 67  Ibid.

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and after the Civil War.68 For these reasons, introducing forms of ameliorating reforms remain an urgent need.69 The Lebanese Ministry of Justice did introduce some reform initiatives. Salary increases were passed, and an attempt to reinforce accountability was made by disqualifying some judges and revitalising the Disciplinary Council. But these came with their own set of problems and challenges, as they were not accompanied with other judicial reform programmes. It also gave the executive branch more power, and the upper moral ground, since it was the one “purging” corruption. As a result, many judges feared disqualification and resorted to political protection seeking immunity.70 Various international initiatives have been launched targeting judicial reform in Lebanon, as well. The UNDP, the European Union, and some individual countries, like France and Italy, have launched several judicial reform initiatives aiming at modernising the judiciary (e.g. “Modernising of the Lebanese Justice” Project), and providing automation, training and access to justice.71 Despite the importance of all of these aspects, one’s first priority should be to bolster judicial independence, as that seems to be one of the major problems facing the courts in Lebanon. That would require pursuing a challenging effort to consolidate the laws that inform the relation between the executive and the judiciary branch to ensure the judiciary’s independence and freedom from political interference. Reform should target the judicial appointments process to help build up the legitimacy of the courts. Said Benarbia, the director of the MENA (Middle East and North Africa) branch of the International Commission of Jurists, explains that judicial appointments, for example, even when 68  The Maronites witnessed the assassination of Bashir Gemayel of the Phalangist party and later his nephew, Pierre (twenty-four years apart), the Druze were horrified by the assassination of their prominent leader Kamal Jumblat of the PSP; and the Shi’a—specifically Amal— still wonder about the fate of Imam Mousa Al Sadr who disappeared in Libya since 1978. As for Hezbollah, every year the party holds a Martyr’s Day rally to commemorate their fallen soldiers and fighters. 69  Muna Ndulo and Roger Duthie, “The Role of Judicial Reform in Development and transitional Justice,” International Center for Transitional Justice, July 2009, https://issat. dcaf.ch/download/2296/19964/The%20Role%20of%20Judicial%20Reform%20in%20 Development%20and%20Transitional%20Justice%20ICTJ%20(2009).pdf. 70  Nizar Saghieh, “The Reform of Judiciaries in the Wake of the Arab Spring-Lebanon,” The Reform of Judiciaries in the Wake of the Arab Spring (Copenhagen: Euro-Mediterranean Human Rights Network, 2011), https://www.refworld.org/pdfid/515009ac2.pdf: 84–89. 71  See “Action Fiche for Lebanon,” European Commission, 2011, accessed 2019; https:// ec.europa.eu/neighbourhood-enlargement/sites/near/files/aap_liban_2011_ad1.pdf.

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proportional representation is observed, have to follow a transparent procedure based on objective criteria that include “legal qualifications, skills, experience and integrity.”72 And various reports urge that the majority of judges be elected by their peers rather than by the Minister of Justice.73 Legitimacy should also be reinforced by observing a gender balance, especially in a transitional justice context.74 Vetting and screening procedures, accompanied by measures to dismiss past abusers from public institutions, should be launched as well.75 However, laws need to be consolidated so as to limit or “rescind” the role of the minister in conducting disciplinary investigations of judges as this may be used as a tool of pressure for political ends. At the same time, these laws should clearly define what constitutes misconduct or a disciplinary offence—while emphasising the right of accused judges to a fair trial and appeal, as Article 95 of the Code of Judicial Organization makes HJC’s decisions to disqualify judges final.76 But reforming national courts can also be pursued at the attitudinal level. In this context, initiatives, programmes, and projects that support civil society organisations may have a positive impact in improving the independence and impartiality of the courts. They play this role through participating and offering their valuable insights in roundtables and discussion panels, which think of legal and judicial reforms that make a difference in practice.77 They are also instrumental in launching campaigns to raise awareness and in monitoring the work of the national courts and calling out corruption and cronyism, especially in the age of social media. Finally, reports tell us that various civil society organisations, including judges’

 Ibid.   “The Lebanese State Council and Administrative Courts: A Briefing Paper,” International Commission of Jurists; October 2018, https://www.icj.org/wp-content/ uploads/2018/10/Lebanon-Memo-re-Court-Reform-Advocacy-Analysis-Brief-2018ENG.pdf. 74  See Ndulo and Duthie, “The Role of Judicial Reform in Development and Transitional Justice;” as well as the reports from the International Commission of Jurists. 75  Ndulo and Duthie, “The Role of Judicial Reform in Development and Transitional Justice.” 76  Ibid. See also Nizar Saghieh, “The Reform of Judiciaries in the Wake of the Arab Spring-Lebanon.” 77  Gamal Eid, “The Reform of Judiciaries in the Wake of Arab Spring-Egypt,” The Reform of Judiciaries in the Wake of the Arab Spring (Copenhagen: Euro-Mediterranean Human Rights Network, 2011); https://www.refworld.org/pdfid/515009ac2.pdf, 18–27. 72 73

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clubs and bar associations, have been active in various countries, including Lebanon, to protest injustice. These civil society organisations should be supported and included in any national debate regarding judicial reform. Many bodies have already recognised that. For example, in 2011, a project was launched in line with the EU–Lebanon Action Plan (AP) under the European Neighbourhood Policy.78 Part of its contribution did go towards supporting judicial institutions, like the High Judicial Council, through drafting legislative and administrative proposals to consolidate its independence, and developing objective criteria to select, transfer, and promote judges, for example. Also, the project supported the Judicial Training Institute through developing a curricula or a training action plan and training members of the justice system. But this project also recognised the importance of changing the hearts and minds of people by launching a “national participative debate” that includes not only the members of the justice system, the legislative, and executive power but also the civil society, which they also supported.79

Conclusion This chapter seeks to shine some light on the importance of some contextual conditions that hindered the transitional justice process in Lebanon, and then search for ameliorating factors to modify them. The Lebanese Amnesty Law did not sooth internal tensions or reinforce peace, not only because of its skewed and selective application, but also because of the flaws in the law itself. An amnesty law may ameliorate the underlying context if it includes measures to restrict or undermine the militias; bring some sort of justice to the victims; and avoids language that makes these pardons final. The case of Lebanon also suggests that if prosecutions are undertaken without introducing various programmes, reforms, and activities to improve and safeguard the independence and the impartiality of the national courts, the process will lead to more division without reinforcing 78  This programme promised 5 million Euros in donation to judicial reform. “Action Fiche for Lebanon,” European Commission, 2011, accessed 2019; https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/aap_liban_2011_ad1.pdf. 79  This programme promised 5 million Euros in donation to judicial reform. See “Action Fiche for Lebanon.”

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­ eterrence and accountability. In this context, judicial reform should not d only seek to modernise the courts, fight corruption, and provide training to the judges, but also aim to strengthen judicial institutions by supporting efforts to amend the laws that inform the relationship between the executive and the judicial branch. Judicial reform should also focus on enhancing objectivity, transparency, and gender equality in the appointment process—which should be done by peers rather than the Minister of Justice—while at the same time facilitate the dismissal of past abusers from public institutions.80 Reform may also be done at the attitudinal level by raising awareness about the impact that judicial dependency and partiality has on the system and on people’s lives, and supporting civil society organisations that monitor the actions of the national courts. However, I end this chapter with a note of caution; these initiatives are of limited effectiveness when political instability and ethnic tension remain in Lebanon. The situation needs not only a total overhaul of the system itself, but also the social transformation of the Lebanese.

Bibliography “Action Fiche for Lebanon.” European Commission. 2011. https://ec.europa.eu/ neighbourhood-enlargement/sites/near/files/aap_liban_2011_ad1.pdf. Amann, Diane Marie. “Impartiality Deficit and International Criminal Judging.” In Atrocities and International Accountability: Beyond Transitional Justice, edited by Edel Hughes, William A. Schabas and Ramesh Thukur. Japan: United Nations University Press, 2007. Asharq Al-Awsat. “Attempts to contain Druze Strike after Escape of Man Accused of Choueifat Crime.” https://aawsat.com/english/home/article/1265181/ attempts-contain-druze-strife-after-escape-man-accused-choueifat-crime. Azar, Edward. The Management of Protracted Conflicts. Vermont: Dartmouth, 1990. Dancy, Geoff. “Deals with the Devil? Conflict Amnesties, Civil War and Sustainable Peace.” International Organization 72, no. 2 (Spring 2018): 387–421. de Clerck, Dima. “Ex-militia Fighters in Post-war Lebanon.” Accord Series. No. 24 (2012). https://www.c-r.org/downloads/Accord24_ExMilitiaFighters.pdf. Eid, Gamal. “The Reform of Judiciaries in the Wake of Arab Spring-Egypt.” The Reform of Judiciaries in the Wake of the Arab Spring. Copenhagen: Euro-­ Mediterranean Human Rights Network, 2011.

80  Ndulo and Duthie, “The Role of Judicial Reform in Development and Transitional Justice.”

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Eisikovits, Nir. “Peace Versus Justice in Transitional Settings.” Quinnipiac Law Review 32, no. 3 (2014): 221–236. El-Masri, Samar. “Inter-ethnic Reconciliation in Lebanon after the Civil War.” In Reconciliation(s): Transitional Justice in Postconflict Societies, edited by Joanna R. Quinn. Montreal: McGill-Queen’s University Press, 2009, 263–285. El-Masri, Samar. “The Hariri Tribunal: Politics and International Law.” Middle East Policy 15, no. 3 (2008): 82–92. El-Masri, Samar. Cases in Power Sharing and Social Transformation. Ph.D. dissertation, London, Canada: The University of Western Ontario, 2004. “Failing to Deal with the past: What Cost to Lebanon.” International Center for Transitional Justice. January 2014. https://www.ictj.org/sites/default/files/ ICTJ-Lebanon-Impunity-Report-2014.pdf. Fletcher, Laurel, and Harvey Weinstein with Jamie Rowen. “Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective,” Human Rights Quarterly 31, no. 1 (2009): 163–220. “Freedom in the World 2018: Democracy in Crisis.” Freedom House. 2018. https://freedomhouse.org/report/freedom-world/freedom-world-2018. Government of Lebanon. Amnesty Law (1991). Government of Lebanon. The Lebanese Constitution (1926). Immigration and Refugee Board of Canada. “Lebanon and Israel: Treatment of Lebanese who cooperated with Israel during its occupation of Lebanon, including those who stayed in Lebanon after the withdrawal of Israeli troops and those who sought refuge in Israel and obtained Israeli citizenship (2000–2012).” Refworld. 20 April 2012. http://www.refworld.org/docid/505992c62.html. “International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors.” International Commission of Jurists. 2007. http:// www.refworld.org/pdfid/4a7837af2.pdf. Jackson, Vicki C. “Judicial Independence: Structure, Context, Attitude.” In Judicial Independence in Transition, edited by Anja Seibert-Fohr. London: Springer, 2012. “Judicial Appointments to Hariri, LF sidelined by FPM.” The Daily Star. https:// www.pressreader.com/lebanon/the-daily-star-lebanon/20171006/ 281526521264893. Jureidini, Paul A. and R.D. Mclaurin. “Lebanon after the War of 1982.” In The Emergence of a New Lebanon, edited by Edward Azar. Connecticut: Praeger Publishers, 1984. Kimani, Mary. “Pursuit of Justice of Western Plot.” Africa Renewal. https:// www.un.org/africarenewal/magazine/october-2009/pursuit-justice-orwestern-plot. Knudsen, Are John. “Death of a Statesman—Birth of a Martyr: Martyrdom and Memorials in Post-Civil War Lebanon.” Anthropology of the Middle East 11, no. 2 (2016): 1–17.

4  THE IMPORTANCE OF MODIFYING THE CONTEXT… 

95

“Lebanon: Human Rights Development and Violation.” Amnesty International. 1997. https://www.amnesty.org/download/Documents/164000/mde180 191997en.pdf. “Lebanon: Human Rights Development and Violations.” Amnesty International. 1 October 1997. http://www.refworld.org/docid/3ae6a9bb0.html. “Lebanon.” Human Rights Watch. 1994. https://www.hrw.org/reports/1994/ WR94/Middle-08.htm#P460_235890. “Lebanon: Samir Gea’gea’ and Jirjis al-Khoury: Torture and Unfair Trial.” Amnesty International. November 2004. https://www.amnesty.org/download/Documents/100000/mde180032004en.pdf. Leebaw, Bronwyn Anne. “The Irreconcilable Goals of Transitional Justice.” Human Rights Quarterly 30, no. 1 (February 2008): 95–118. Leidner, Bernhard, Emanuele Castano, Erica Zaiser, and Roger Giner-Sorolla. “Ingroup Glorification, Moral Disengagement, and justice in the Context of Collective Violence.” Personality and Social Psychology Bulletin 36, no. 8 (2010): 1115–1129. Mallinder, Louise. “Can Amnesties and International Justice be Reconciled?” The International Journal of Transitional Justice 1, no. 2 (August 2007): 208–230. Mansour, Maya W. and Carlos Y.  Daoud. “Lebanon: The Independence and Impartiality of the Judiciary.” Euro-Mediterranean Human Rights Network. February 2010. https://euromedrights.org/wp-content/uploads/2018/03/ LEBANON-The-Independence-and-Impartiality-of-the-Judiciary-EN.pdf. Mroue, Bassem. “Lebanon issues Death Sentences in 1982 killing of president.” Fox News. https://www.foxnews.com/world/lebanon-issues-death-sentencesin-1982-killing-of-president. Ndulo, Muna and Roger Duthie. “The Role of Judicial Reform in Development and Transitional Justice.” International Center for Transitional Justice. July 2009.https://issat.dcaf.ch/download/2296/19964/The%20Role%20of%20 Judicial%20Reform%20in%20Development%20and%20Transitional%20 Justice%20ICTJ%20(2009).pdf. Olsen, Tricia D., Leigh A. Payne, and Andrew G. Reiter. “The Justice Balance: When Transitional Justice Improves Human Rights and Democracy.” Human Rights Quarterly 32, no. 4 (November 2010): 980–1007. Portilla, Juan Carlos. “Amnesty: Evolving 21st Century Constraints Under International law.” The Fletcher Forum of World Affairs 38, no. 1 (Winter 2014): 169–194. Rodman, Kenneth A. “Peace Versus Justice.” In Encyclopedia of Global Justice, edited by D.K. Chatterjee. Dordrecht: Springer, 2011. Saghieh, Nizar. “The Reform of Judiciaries in the Wake of the Arab Spring-­ Lebanon.” The Reform of Judiciaries in the Wake of the Arab Spring. Copenhagen: Euro-Mediterranean Human Rights Network, 2011.

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Salamey, Imad and Rhys Payne. “Parliamentary Consociationalism in Lebanon: Equal citizenry vs. Quoted Confessionalism.” The Journal of Legislative Studies 14, no. 4 (December 2008): 451–473. Salzman, Ryan and Adam Ramsey. “Judging the Judiciary: Understanding Public Confidence in Latin American Courts.” Latin America: Politics and Society 55, no. 1 (February 2013): 73–95. The Taif Agreement (1989). United Nations Permanent Missions. https://www. un.int/lebanon/sites/www.un.int/files/Lebanon/the_taif_agreement_english_version_.pdf. Teitel, Ruti G. “Transitional Justice Genealogy.” Harvard Human Rights Journal 16, no. 1 (January 2003): 69–94. The Economist Intelligence Unit. “The Economist Intelligence Unit’s Democracy Index.” The Economist, 2018, https://infographics.economist.com/2018/ DemocracyIndex/. “The Lebanese State Council and Administrative Courts: A Briefing Paper.” International Commission of Jurists. October 2018. https://www.icj.org/wpcontent/uploads/2018/10/Lebanon-Memo-re-Court-Reform-AdvocacyAnalysis-Brief-2018-ENG.pdf. Thrumbull IV, Charles P. “Giving Amnesties a Second Chance.” Berkeley Journal of International Law 25, no. 2 (2007): 284–345. United Nations Human Rights Committee. UN Human Rights Committee Concluding Observations: Lebanon. Refworld. 5 May 1997. http://www.refworld.org/docid/3ae6b03214.html. United Nations Secretary-General. Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice. March 2010. United Nations Security Council. “Resolution 1644.” S/RES/1664(2006). New York: United Nations Security Council, 2006. Van der Wilt, Harmen. “The Legacy of the Special Tribunal for Lebanon.” In The Special Tribunal for Lebanon: Law and Practice, edited by Amal Alamuddin, Nidal Nabil Jurdi and David Tolbert. Oxford: Oxford University Press, 2014. Wenzel, James P; Shaun Bowler, and David J Lanoue. “The Sources of Public Confidence in State Courts.” American Politics Research 31, no. 2 (March 1, 2003): 191–211. Wierda, Marieke, Habib Nassar, and Lynn Maalouf. “Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon,” Journal of International Criminal Justice 5 (2007): 1065–1081. Worrall, James, Simon Mabon, and Gordon Clubb. Hezbollah from Islamic Resistance to Government. California: Praeger, 2016. Zalaquett, Jose. “Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints.” In Transitional Justice: How Emerging Democracies Reckon with Former Regimes. Vol. 1. Edited by Neil J. Kritz. Washington DC: United States Institute of Peace Studies, 1995.

CHAPTER 5

Victims of Language: Language as a Pre-­condition of Transitional Justice in Colombia’s Peace Agreement Juan-Luis Suárez and Yadira Lizama-Mué

Introduction “Victims” were addressed as one of the six themes that the negotiators of Colombia’s Government and the Colombian Revolutionary Armed Forces (FARC) included in the General Agreement to End the Conflict and Build a Stable and Lasting Peace (General Agreement), which was signed in Havana on 26 August 2012, after several months of negotiations between the parties.1 This agreement established a framework and an agenda that would guide the negotiations of peace to end over fifty years of internal 1  The other themes of the negotiations were: Integral Rural Development; Political Participation; End of the Conflict; Illicit Drugs; and Implementation, Verification and Ratification. See Negotiation Table, Acuerdo General para la terminación del conflicto y la construcción de una paz estable y duradera [General Agreement to End the Conflict and Build a Stable and Lasting Peace] Havana, 2012, https://bit.ly/2RrhIwj.

J.-L. Suárez (*) • Y. Lizama-Mué The CulturePlex Lab, The University of Western Ontario, London, ON, Canada e-mail: [email protected]; [email protected] © The Author(s) 2020 S. El-Masri et al. (eds.), Transitional Justice in Comparative Perspective, Memory Politics and Transitional Justice, https://doi.org/10.1007/978-3-030-34917-2_5

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armed conflict. The very short General Agreement, which resulted from secret “exploratory conversations,” did not explicitly mention the term “transitional justice,” although its stated goal, “to compensate the victims [was] at the center of the agreement.”2 It also listed two subthemes that organised this part of the ensuing negotiations: victims’ human rights and truth.3 In the Final Agreement signed in 2016, “victims” are included in section five. This section creates a very innovative and comprehensive System of Truth, Justice, Reparation and Non-Repetition, in what can be described as a true attempt to delineate the mechanisms that would make the sections of the agreement that deal with “transitional justice” a cornerstone of a successful peace process. Thus, the Final Agreement aims at establishing the ameliorating conditions that would guarantee a “stable and long-­ lasting peace” beyond the military end of the conflict by combining two formal transitional justice processes: judicial mechanisms to oversee great violations of human rights and international humanitarian law, and extrajudicial mechanisms to shed light on “what happened,” to search for the disappeared and to compensate the victims. This chapter will not delve into these processes, but focuses instead on the specific language used to talk about victims during the peace negotiations in Havana, and in the Final Agreement. The objective is to determine whether the goals established in the General Agreement of 2012 around the victims of the conflict are reflected during the conversations and clearly included in the final peace agreement. The present research is part of a broader project of Peace Innovation developed at Cultureplex Lab that looks into how artificial intelligence, statistical computing and digital methods in general can support and assist transitional justice and peace-building processes. Taking the case study of Colombia, this project responds to the challenge of building a stable and long-lasting culture of peace in the country—an intention clearly expressed throughout the negotiations period and in the Final Agreement—by analysing, in this particular research, the role of language in peace processes. 2  Although there is a policy consensus “that victims should be included in transitional justice processes” the broadness of definitions and the lack of precision in the used language leaves a wide space for political interpretations about what this inclusion means and how it will be interpreted. See Astrid Jamar, Victims Inclusion and Transitional Justice: Attending to the Exclusivity of Inclusion Politics: PA-X Report: Transitional Justice Series (Edinburgh: The University of Edinburgh, 2018), 2. 3  Negotiation Table, General Agreement, 3.

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We argue that language itself—the very tool that makes the peace conversations possible—is a key improving factor in any peace process. The effectiveness and quality of the peace achieved depends to a large extent on the accuracy of the language used in both negotiating and ultimately formulating the agreements. The reason is not only that language is the foundation that makes the conversations possible and substantiates the future resolution of conflicts by political means, but that the life of the agreement after its ratification will entirely depend on the ability of the language used to continue to be relevant, accurate and clear about the type of peace the parties have agreed to support. In Colombia, this desire is reflected in the very title of the General Agreement and the Final Agreements; they state that to be true and effective, peace needs to be “stable and long-lasting.” Victims are supposed to be at the centre of this goal. Accurate language in peace agreements is an ameliorating factor that can support many of the pre-conditions of transitional justice processes described in the introduction of this volume. We consider it is a transversal component that, if used properly, can legally set the grounds to foster pre-­ conditions of transitional justice needed to achieve the desired state of peace. In the specific case of the inclusion of victims, that has been framed as a global transitional justice priority to further legitimise institutional efforts, language should describe what is being promoted at a high policy level, what is provided for in peace processes and how both policy provisions and peace agreement commitments get translated into practice for the benefit of the victims and the overall peace. Accurate language in peace documents is an ameliorating factor that directly affects the stability of peace in the post-agreement period. The Arabs and the Israelis, for example, have a different understanding of the famous UN resolution 242, approved by the Security Council after the Six Day War in 1967. The provision of the resolution expresses the: establishment of just and lasting peace in the Middle East should include the application of both the following principles: • withdrawal of Israeli armed forces from territories occupied in recent conflict; • termination of all claims or states of belligerency and respect for … territorial integrity … of every State in the area and their right to live in peace within secure and recognized boundaries.4  UN Security Council, UN Resolution 242, (1967). https://undocs.org/S/RES/242(1967).

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The Israelis claimed that they should not withdraw from all the territories that they occupied as the English version talked about “territories occupied,” while the Arabs claimed that this is not true as the preamble and the French translation, which together with the English version is an official UN version of the document, talks about “Retrait de forces armees israeliennes des territories” (with emphasis on “the,” which was not present in the English version). That is why it was possible to raise the question as to whether Israel was actually asked to withdraw from all the territories occupied in the recent conflict, or to withdraw from some, but not all, territories. Finally Israel did not withdraw its pre-Six Day War borders and Arabs countries still argue about the issue. This example shows how a prior agreement about the meaning and interpretation of the language used in transitional justice processes is a key for a successful and effective implementation of its contents. This is even more important today, a moment in which digital tools and data technologies are being used globally to disrupt the trust in language and truth as pre-conditions of any conflict resolution, regardless of the scale of the conflict and the political regime in which the conflict erupts. In societies such as Colombia’s embarked in a process of transitional justice, an agreement about what language will be used and how it will be used will prove key to achieve the long-lasting peace the parties aspired to when starting the negotiations.

Data and Methodology The Negotiation Table in Havana created a website to publish the documents issued by the delegations, inform the public about the progress being made during the negotiations, publicise the drafts of the provisional agreements and collect the proposals to be included in the conversations submitted by the public. After the end of the negotiations, the Office of the High Commissioner for Peace of the Colombian Government published a website to host all the documents that had made up the original website of the Negotiation Table.5 The language and documents analysed for this article were recovered from the documentation published on the original website of the Negotiation Table. These 137 documents, published between 2012 and  The documents can be found at https://goo.gl/Ji9y4s. The original website was removed from www.mesadeconversaciones.com.co, which is currently offline. 5

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Table 5.1  Number of documents published during the negotiations Category

Sub-category

Final agreement Historical Commission of the Conflict and its Victims General documents

Final agreement Relatorías Reports Reports Draft of joint agreements Joint media reeleases

Total

Number of documents 1 2 10 4 13 107 137

2016, are organised in three categories (Table  5.1): first, General Documents that include the drafts of joint agreements, reports and the media releases of the Negotiation Table; second, Historical Commission of the Conflict and Its Victims, that includes reports and relatorías (curated summaries of the reports) written by academics to explain the causes of the armed conflict; and third, the Final Agreement. The year that ended the conflict, 2016, was the most prolific in terms of the volume of publications.6 The Negotiation Table published fifty-five documents in 2016, thirty in 2015, twenty in 2014, twenty-five in 2013 and just seven from September to December 2012 (Fig.  5.1). The date that the parties announced the protocols for a definite ceasefire and laying down arms, 5 August 2016, was the day with the most number of publications. The data was processed with Python,7 a generic and modern computing language, widely used for text analytics. Python is enriched with computing libraries like Scikit Learn8 for machine learning applications and

6  In February 2015, the ten reports and two relatorías of the Historical Commission of the Conflict and its Victims were published together as a book. See Comisión Histórica del Conflicto y sus Víctimas, Contribución al entendimiento del conflicto armado en Colombia [Contribution to the understanding of the armed conflict in Colombia] (Bogotá: Ediciones Desde Abajo, 2016). 7  Python Software Foundation, Python. Accessed December 26, 2017. https://www. python.org/. 8  Fabian Pedregosa et al., “Scikit-Learn: Machine Learning in Python,” Journal of Machine Learning Research 12 (2011): 2825−2830, http://www.jmlr.org/papers/v12/pedregosa11a.html.

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Number of documents

40 30 20 10 0

2012

2013

2014

2015

2016

Fig. 5.1  Number of publications per year

SciPy9 for mathematical analysis. Both were used in this study. We filtered out from the total corpus, common Spanish words like prepositions, articles, demonstrative pronouns, among others; repeated headings and footers were also removed. By doing this, we eliminated the so-called stop-words and just used for the analysis the most relevant categories of words from a semantic point view. Using natural language processing techniques and Python libraries, specifically NLTK,10 we analysed the text of the documents classified in Table 5.1, searching for keywords that help us to describe the discourse of peace and paying special attention to the term “victim(s).” In addition, we performed a close reading of all the relevant documents released by the Negotiation Table including the Final Agreement, and press conferences reports released on important dates during the period. The result is a combination of methods of language and discourse analysis that seeks to determine what the language of the Final Agreement between the Colombian government and the FARC really says about the victims of the conflict, including positive outcomes and certain shortfalls.

9  Eric Jones et al., SciPy: Open Source Scientific Tools for Python. Accessed December 26, 2017. https://www.scipy.org. 10  Steven Bird, Ewan Klein and Edward Loper, Natural Language Processing with Python (California: O’Reilly Media, 2009), http://www.nltk.org/book/.

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The Mentions of Victims During the Negotiations The public phase of the dialogue between the Government of Colombia and the FARC took place in Havana from 4 September 2012 to 24 August 2016. The victory of the “No” side in the plebiscite, held on 2 October 2016 to approve the peace agreement, forced the negotiating parties to return to Havana and correct the original agreement. The Final Agreement was signed on 24 November 2016 and ratified by the House of Representatives and the Senate on 30 November 2016, officially ending the negotiations process. Although the conversations were secret, and the minutes of the negotiations have not been made public, both parties were prudent in what they chose to publish and when they chose to do so. They were forthcoming with the public about where the dialogue stood at several junctures in the process. The number of joint media releases issued throughout the more than four years of negotiations and the immediate publication about the agenda after the preliminary joint agreements were made is the best evidence of the parties’ will to keep the public informed. Three factors contributed to the healthy balance between transparency and privacy that made the process ironclad. First, the agenda for the negotiations had been clearly delineated in the General Agreement,11 signed in 26 August 2012 in Havana by Sergio Jaramillo and Frank Pearl, as representatives of the government and Mauricio Jaramillo, Ricardo Téllez, and Andrés París as representatives of the FARC.12 Second, the procedure mandated that there would be no movement on other issues until the previous issues on the list had been agreed upon. And third, the government put in place a safety mechanism based on the principle that “nothing is agreed upon until everything has been agreed upon.”13 This also brought a very slow pace to the public phase of the negotiations in Havana. Both parties stated, during the negotiations and in the Final Agreement, that “redress for victims is at the core of the agreement between the  Negotiation Table, General Agreement, 1.  Also, Marco León Calarcá, Hermes Aguilar and Sandra Ramírez signed on behalf of the FARC. As witnesses, Carlos Fernández de Cossío and Abel García signed from Cuba; Dag Halvor Nylander and Vegar. S.  Brynildsen from Norway; and Enrique Santos C., Álvaro Alejandro Eder, Jaime F.  Avendaño, Lucía Jaramillo Ayerbe and Elena Ambrosi from Colombia. 13  This is the principle ten of the “Working Rules of the Negotiation Table” included in the General Agreement. 11 12

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National Government and the FARC-EP.”14 The Declaration of Principles,15 that precedes the description of the mechanisms that make up the Joint Agreement on Victims,16 also reflects “this commitment to the victims” that had been “the canvass of these conversations to make sure that the integral satisfaction of their rights to the truth, justice, reparations and non-repetition” was the cornerstone of the Final Agreement.17 Since the transitional justice approach foregrounds the significance of victim-centred processes,18 it is legitimate to investigate the agreement and question whether the language on victims contained in the documents of the negotiations held in Havana and in the Final Agreement account for this focus on the victims. Since there are some critiques of transitional justice that argue that “victims are (to varying degrees) instrumentalized in the pursuit of larger political and social goals,”19 and in politics there used to be a gap between rhetoric and reality20 that has also been identified in the experiences of victims of transitional justice,21 it is important to understand to what extent the language of peace negotiation and the resulting agreement in Colombia reflect what the parties claim it to say. In quantitative terms, the term “victims,” and its semantic network of concepts, makes up a very small portion of the language used in Havana. It only became preeminent at very specific moments during the negotiations. The rest of the time victims are absent. The most frequent words used in all the official documents published by the Negotiation Table refer to general issues such as “agreement” (2234 times), “national” (2214), 14  Negotiation Table, Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace, trans. British Council in Colombia (Bogota: Office of the High Peace Commissioner, 2016), 132, https://goo.gl/RDsEPe. 15  Negotiation Table, Comunicado Conjunto June 7, 2014 [Media Release], Havana. https://goo.gl/jFcc3o. 16  Negotiation Table, Borrador Conjunto Acuerdo sobre las Víctimas del Conflicto [Joint Agreement on Victims of the Conflict], Havana, 2015. https://goo.gl/KCrpP6. 17  The Media Release of 7 June 2014 exactly repeats: “redress for victims is at the core of the agreement.” See Negotiation Table, Comunicado Conjunto June 7, 2014, 1. 18  Vasuki Nesiah, Transitional Justice Practice: Looking Back, Moving Forward, (Amsterdam: Impunity Watch, 2016), 24. 19   Kieran McEvoy and Kirsten McConnachie, “Victimology in transitional justice: Victimhood, innocence and hierarchy,” European Journal of Criminology 9, no. 5 (2012): 527–538. 20  Mark Thompson, Enough Said: What’s Gone Wrong with the Language of Politics? (New York: St. Martin’s Press, 2016), 92. 21  Kieran McEvoy and Kirsten McConnachie, “Victimology in transitional justice,” 528.

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“conflict” (1619), “government” (1586), “FARC-EP” (1374), “politics” (1365), “Colombia” (1337) or “peace” (1317). “Victim(s)” appears only sixteenth most frequently (833) and it makes for 0.14 percent of the total words used in the published documents. This percentage rises to 0.61 percent when the context is only the preliminary agreement on victims on the negotiation agenda. In fact, the semantic role of the victims in the documents of the negotiations is very limited. The moments at which “victims” become semantically relevant are few, but very significant, namely, in the text of the Joint Agreement on Victims and in the Final Agreement. However, this apparent significance is diminished when the language on victims is scrutinised within the context of the preliminary Joint Agreement. Then, the term moves to the background and gives way to legal and political agreements that it was hoped would make both the culprits and the truth emerge. In fact, despite the strong philosophical and doctrinal intent on the part of the signatories to “do” justice for victims, the victims are directly made present only in the margins of that provisional agreement (in the sections on truth and reparations), indirectly in the main section of the Joint Agreement on Victims (in the section on justice) and almost absent in the section on non-­repetition.22 In addition, the analysis of the language of this part of the agreement shows that for the victims to exist, both as mentioned entities and subjects of civic rights, it was previously necessary to explicitly redefine the “conflict” as an “armed conflict.” This redefinition lasted only for a short period. It was used by the government before the negotiations started, by some of the historians writing for the Historical Commission, and a few times in the Joint Agreement on Victims. Most of the time, the documents from the Negotiation Table referred to the situation simply as “the conflict,” without qualifiers. The linguistic and civic existence of victims also required establishing a system of justice that acknowledges the criminals as morally equal to their victims.

The Victims’ Moment The agreement about the victims was the fifth theme to be dealt with by the parties in Havana. The rest of the negotiations were devoted to the logistical and military aspects of demobilising the FARC combatants and 22  Truth, Reparations and Non-Repetition use 10,595 words in total whereas the Justice section uses 45 percent of the Joint Agreement on Victims of the Conflict.

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handing over the weapons. During the period of negotiations, the conversations around victims marked a turning point in the rejection of the agreement by part of the public opinion and the opposition against President Juan Manuel Santos in Colombia. The reason was that it included the component of transitional justice, something that many Colombians do not believe in, given the multitude of divergent meanings that the concept adopts in practice and the variety of political actors who appropriate the idea for different purposes.23 In chronological terms, it also took up a considerable amount of time to get an agreement around the victims. The previous theme in the agenda (illicit drugs) had been finalised and published on 16 May 2014. The participation of the Historical Commission—whose report was not published until February 2015, nine months after the conversations around the end of the conflict (third theme) had ended—the presence of several groups of victims in Havana and the delicate theme of justice created a considerable delay so that the Joint Agreement on Victims was made public on 15 December 2015.24 In total, eighteen months had passed since the FARC and the government had concluded the previous theme. The term “victim” barely appeared in the first three preliminary agreements about rural reform, illicit drugs and political participation signed by the Colombian government and the FARC prior to starting the discussion about victims. In spite of claims about the centrality of victims in the peace process, the language of the first 22 months of negotiation did not pay attention to the victims.25 The same pattern occurred in the joint press releases issued by the Negotiation Table in 2012 and 2013. In those, the word “victim(s)” does not emerge in the list of the 20-most used words. This changed in the Joint Media Releases of 2014 and 2015, in which “victim(s)” along with “conflict” become the two most used terms by the parties. In 2016, the last year of negotiations, the language of peace reverted and “victims” disappeared from the list of most used words in the documents prepared for the media. 23  Jamie Rebecca Rowen, “‘We Don’t Believe in Transitional Justice’: Peace and the Politics of Legal Ideas in Colombia,” Law & Social Inquiry 42, no. 3 (2017): 622–647. 24  The Joint Agreement of the Bilateral and Definitive Ceasefire and Cessation of Hostilities and the Laying down of Arms was released in 23 June 2016. 25  The word “victim(s)” appears 360 times in all documents published before the date of publication of the Joint Agreement on Victims of the Conflict in 15 December 2015.

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Fig. 5.2  Number of occurrences of “victim(s)” in documents over the years Table 5.2  Documents with the most occurrences of “victim(s)” Date

Title

24 November 2016 15 December 2015 15 December 2015 7 June 2014 5 August 2014 17 October 2015 24 August 2016 17 July 2014 17 August 2014

Final agreement Joint agreement on victims Joint media release Joint media release Joint media release Joint media release Joint media release Joint media release Joint media release

Frequency 230 172 34 32 23 16 10 10 6

When all the documents published by the Negotiation Table are considered, victims emerge clearly in two distinct moments of the negotiations: on and around 15 December 2015, when the Joint Draft about the Victims of the Conflict and the accompanying media release (number 64) were issued; and on 24 November 2016, when the second version of the Final Agreement was published (Fig. 5.2). Even so, “victim(s)” make up just a 3.3 percent of the language around peace published in Havana.26 A detailed analysis (Table 5.2) reveals that, beyond the above-­mentioned texts, the documents containing the most references to the victims of the Colombian conflict are joint media releases published during the negotiation  We don’t consider stop-words in this counting.

26

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of the point on victims during 2014 and 2015, plus ten occurrences in the joint media releases announcing the end of the negotiations in August 2016. The Joint Agreement on the Victims is entitled “Comprehensive System of Truth, Justice, Reparations and Non-Repetition,” and beyond the inverted commas, adds the following  text: “including the Special Jurisdiction for Peace; and Commitment on Human Rights.” The huge linguistic, political, and legal challenge of this part of the agreement is clear as soon as the reader gets to the first paragraph and finds a complex text in which the authors express the desire to make the victims the centre of the solution and compensate them for their suffering. This was stated by the High Commissioner for Peace Sergio Jaramillo in his address to the Senate titled “El tiempo de las Víctimas.”27 In this text, the Commissioner outlined the philosophical principles that became part of the agreement about the victims and that had been agreed upon by the parties in the Joint Media Release of 7 June 2014. For instance, the statement: “Redress for victims is at the core of the agreement between the National Government and the FARC-EP” stated in the declaration to the Senate is exactly the first sentence of the Joint Agreement on the Victims. Also, Sergio Jaramillo included other principles such as: “the recognition of the victims; the acknowledgment of responsibility; the satisfaction of the rights of the victims; the participation of the victims; the clarification of the truth; the reparation of the victims; the protection and security guarantees; the guarantees of non-repetition; the principle of reconciliation; rights approach.” The complexity of the declaration reflects the political undercurrents that were already present during the discussions around the first Colombian Law of Justice and Peace, Law 975, in 2005, and still resonated throughout the negotiation between the government and the FARC. For Rowen, the presence of the components of truth, justice and reparations is proof of the malleability of the idea and, although in theory carries a holistic conception of justice, in practice it meant a rejection of transitional justice as it only served as a slogan that, under transitional justice, would undermine the victims’ rights.28 This contradiction was also evident in 2016 and 2017 as the political consequences for the country of the comprehensive system accorded in Havana was evident along the turbulent road for

27  Sergio Jaramillo, El tiempo de las víctimas [The moment of victims], (Bogotá: Oficina del Alto Comisionado para la Paz, 2014), http://www.altocomisionadoparalapaz.gov.co/ Prensa/Discursos/Documents/el_tiempo_de_las_victimas.pdf. 28  Rowen, “‘We Don’t Believe in Transitional Justice’,” 624.

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approval in the National Congress.29 As Sergio Jaramillo, then the High Commissioner for Peace of the Colombian government, said at the end of his Senate address of 9 June 2014, “this is the moment of the victims, this is the moment of peace.”30 This is also clearly stated in the preamble of this part of the agreement. It included, according to the initial paragraph, two main issues: human rights of the victims and truth—although “truth” is followed by a very complex definition that states the following: 31 with the aim of drafting a content that will satisfy the claims of those who have been affected by the long conflict. Now, in the pursuit of a political solution, through these new accords and important de-escalation measures and agreements, we have taken a major step forward towards building a stable and lasting peace and bringing an end to a war that has torn the country apart for more than half a century.

The sentence is complex because it includes indirectly a definition of victim that puts it in relation to the conflict. In this, the parties follow the definition contained in Article 3 of Law 1448 (2011)32 that states that victims are: 33 those persons that, individually or collectively had suffered a damage by events taking place from 1 January 1985 onwards, as a consequence of infractions against International Humanitarian Law or grave and manifest violations of international norms of Human Rights, occurred on the occasion of the internal armed conflict.

Victims, here, are “those who have been affected by the long conflict” and have entitlement to claims or actually express those claims, since the compensation starts an administrative process that may legally be initiated only  The problems experienced in November and December 2017 to pass the law that would enact the part of the agreement that gives the victims of the conflict the right to have 16 seats in the Congress of the Republic (See Tribunal Administrativo de Cundinamarca, No. 250002341000201701993-00, 2017, https://goo.gl/94LHHq) are the proof of the gap between the intentions expressed in these types of agreements and the landing in national legislation. The failure to enact clauses of the agreement such as this would confirm the idea that victims of armed conflicts feel in many cases exploited by transitional justice mechanisms that may end up scarifying victims’ priorities. See Vasuki Nesiah, Transitional Justice Practice, 25. 30  Sergio Jaramillo, El tiempo de las víctimas, 5. 31  Negotiation Table, Borrador Conjunto Víctimas, 1. 32  Published in the Diario Oficial 48096 in 10 June 2011. 33  The text in italics as it appears in the text of the Law indicates that that section has been declared “exequible” by the Constitutional Court (Ruling C-280, 2013). 29

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by someone with such a claim. This is the basis for the victims’ reparations section of the agreement. The references to their human rights and to the truth make up the dimensions of non-repetition and truth, respectively. That is, the initial definition of what constitutes a victim that opens the Joint Agreement on Victims refers to three of the four components of that agreement—truth, reparations and non-repetition—and leaves untouched the crucial and longer section of it: justice. The definition of victim in Law 1448 (2011) also establishes in its fifth paragraph that this definition may never be interpreted as an acknowledgement of the political character of the terrorist or illegal groups that caused the damage. The language used around victims or the lack of it limits the access of victims to justice. The term “conflict” is also explicitly defined for the first time throughout the negotiations and it is described as a long confrontation, which might have an opportunity for a political solution through these agreements. Thus, this convoluted first paragraph contains the three dimensions of the conflict that the government and the FARC were trying to end. The political side of the solution here refers to the themes of discussion in the Agenda (integral rural development; political participation; the end of the conflict; illicit drugs; victims; implementation, verification and endorsement). The confrontation addresses the violent dimension of the conflict that will be finished through the mechanisms described as they relate to the end of the conflict, and to the agreement’s implementation, verification and endorsement contained in the Final Agreement and could only hope to be sustained if the political side is implemented and integrated into the new social, economic and political structure of Colombia. The repetition of the formula about the building of a stable and lasting peace serves as a colophon that tightly closes the linguistic and political loop started by the negotiations.34 The connection between the conflict and the victims was clearly established in the mandate that the negotiating parties had given the Historical Commission: to find out “what happened throughout the conflict, including the multiple causes, origins and effects thereof, is fundamental to the realization of the rights of victims.”35 If the Commission focused more on the causes of the conflict than on the victims, in the Joint Agreement on the Victims this link between the conflict and its victims gets stronger, thanks to the clarification around the meanings of both “conflict” and “victims.” 34  The problem is that the language used to express it does not coincide with the chronological and political order of the negotiations and this contributes to the confusion about the peace process. 35  Comisión Histórica del Conflicto y sus Víctimas, 2.

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In the Joint Agreement on Victims, “conflict” (178 times) and “victims” (168) are the two unigrams most used throughout the document. These are closely followed by “rights” (162), “peace” (134) and “justice” (120),36 in a clear indication of the semantic context in which these terms are placed, especially when compared to the limited role they play in the rest of documents issued by the Negotiation Table. Here the conflict is not an isolated and empty term repeated many times in several moments, but a key concept that appears 32 times, specifically as “armed conflict.” The context is established by the most frequent words found in sentences in which “conflict” appears, such as “victims” (60), “reparation” (42), “rights” (40), “repetition” (32) and “persons” (31). It is also evident in the top two bigrams in those sentences: “national government” (18) and “human rights” (18). Looking around the sentences containing “victims,” the most used terms are “conflict” (60), “rights” (58), “reparation” (50), “repetition” (33), “justice” (30) and “recognition” (27); while the most frequent bigrams are, again, “human rights” (23) and “national government” (18), followed by “comprehensive system” (12) and “integral reparation” (10).

The Language of the Comprehensive System of Transitional Justice In the section of the Colombian peace process that deals with victims, the language describing victims and their projection into the future results in a complex system that embraces the idea of “comprehensiveness” to cover all those aspects. “Comprehensiveness” here refers to the whole point on victims and its application to the level of satisfaction of the victims’ rights (“integral satisfaction”)37 and to the level of reparation of the victims (“integral reparation”).38 This system contains four elements that are also described as rights of the victims: truth, justice, reparation and non-­ repetition. It emerges from the application of a set of ten principles, ethical, philosophical, operational and legal, expressed in the Declaration of Principles of 7 June 2014 and repeated in the Comprehensive System of Truth, Justice, Reparations and Non-Repetition.39 36  Following these, we found: “commission” (108), “reparation” (106) and “acknowledgement” (100). 37  Negotiation Table, Borrador Conjunto Víctimas, 3. 38  Ibid., 50. 39  Ibid., 1.

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The holistic approach40 contained in the Comprehensive System precludes any formal hierarchy that would bind its four rights and pillars in a specific set of dependencies. Rather, they are complementary. Some of them are judicial in nature, like the Special Justice for Peace (JEP),41 whereas others are extrajudicial (Truth), the mechanism to implement reparations is administrative and the right to non-repetition implies the ongoing action of the state and the changing of the socioeconomic conditions that gave rise to the conflict in the first place. However, the text is clear that they are interconnected through the conditions and incentives to access any special justice treatment, as these are dependent on the victims having access to the truth and on the culprits acknowledging their responsibilities. To emphasise this point, the text explicitly states that “the fulfilling of these conditions will be verified by the Special Jurisdiction for Peace.” In the end, justice is the cornerstone of the agreement42 and it is in the justice component where victims are less present, opening up the possibility that this “perpetrator-oriented”43 element of the agreement would result in a revictimisation of the victims if there is a lack of coordination and/or resources to fully and simultaneously deploy the other three mechanisms. In the first component—Truth44—the term “victim(s)” appears 33 times (Fig. 5.3) and it is the third most used word after “commission” (89) and “conflict” (53) and before “persons” (28). In this section of the agreement, “victims” is often surrounded in the same sentences by unigrams like “commission” (14), “conflict” (13), “rights” (11) and “organisations” (11) and bigrams like “human rights” (5), “disappeared persons” (4) and “national government” (3). In the Truth section, the negotiators adopted two approaches that contributed to the fluidity of the concept of victim: territoriality and gender.45 For the first, the text states in its guiding criteria for the two mechanisms  Vasuki Nesiah, Transitional Justice Practice, 27.  In Spanish, Justicia Especial para la Paz. 42  Justice contains 12,799 words, Truth 5674, Reparations 3855 and Non-Repetition 1066. 43  Luc Huyse, “Victims,” in Reconciliation After Violent Conflict. A Handbook, ed. David Bloomfield, Teresa Barnes and Luc Huyse (Stockholm: International Institute for Democracy and Electoral Assistance, 2003), 61. 44  This includes the Commission of Truth and the Search Unit of Missing People. 45  This seems to respond to a long-standing problem for women in Colombia’s rural history, who traditionally have had very limited agency and citizenship. See Donny Meertens and Margarita Zambrano, “Citizenship Deferred: The Politics of Victimhood, Land Restitution and Gender Justice in the Colombian (Post?) Conflict,” International Journal of Transitional Justice 4, no. 2 (2010): 6–200. 40 41

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Fig. 5.3  Most frequent words per section in the Comprehensive System of Truth, Justice, Reparations and Non-repetition

of the component of truth that, although the truth commission would be a national entity, it was required to take a territorial-based approach in order to achieve a better understanding of the regional dynamics of the conflict and the diversity and particularities of the territories affected, aimed at promoting the truth-building process and contributing to the guarantees of non-repetition in the various territories. The territorial-­ based approach also takes consideration the people and populations that were forcefully displaced from their territories.46 For the second approach, the truth commission was to adopt a methodology that would integrate differential and gender approaches in each step of its work.47 The list of all possible affected people resulting from the implementation of these approaches expands, even more, the previous level of detail of the concept of victim. This is not only because of the  Negotiation Table, Borrador Conjunto Víctimas, 10.  This perspective was integrated in Law 1448. See Sanne Weber: “From Victims to Mothers to Citizens: Gender-Just Transformative Reparations and the Need for Public and Private Transitions,” International Journal of Transitional Justice 0 (2017): 2. 46 47

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multifaceted dimensions of the differentiation and gender, but because the drive towards inclusivity is resolved again by means of a long list that included48 women, boys and girls, teenagers, youth, old adults, persons with disabilities, indigenous peoples, communities of peasants, Afro-­ Colombian, black, palenque and raizals populations, the LGBTI population, exiled and displaced populations, defenders of human rights, unionists, journalists, farmers, cattle farmers, merchants and entrepreneurs. The list ends with “among others.”49 As Astrid Jamar has pointed out: “Efforts to include victims are often based on ‘status equality’ identifiers such as gender, age, ethnicity or membership of another group. However, in practice these identities overlap and connect with political positions, and providing for group inclusion without awareness of the political complexity of allegiance and alliances can crystallize or reinforce existing power imbalances that inclusion efforts seek to address.”50 In the section on Justice, “victims” do not make the list of the twenty most frequently used words, although the word itself occurs 31 times, but in a large text of 12,799 words. Quantity is important because referring to something or someone without naming them is very difficult in linguistic terms and requires a mastery of language that is more prone to appear in literary texts than in legal ones. Unless a special and refined linguistic style has been coined from the beginning of the documentation, the most likely outcome is that when something is not mentioned it is the case that it is not being talked about. Here, the victims appear as part of the goals of the Special Jurisdiction for Peace, which include the goal of satisfying the victims’ rights to justice and the enacting of their rights as the central axis of the Comprehensive System, the consideration of the seriousness of the damages caused by the transgressions of International Humanitarian Law and the violations of human rights occurred during the conflict. From that point, the Special Jurisdiction for Peace deals mainly with organisational and procedural matters for the functioning of the tribunals. Although the prosecution is meant to give justice to victims, victims are left in the background and language is taken over by the culprits, their crimes and their 48  With masculine and feminine forms for all words that accept those gendered forms in Spanish. 49  On page 10, when explaining the guiding criteria and after clarifying the territorial criterion, the list of people included in the differential and gender approach is condensed into the following categories: sex orientation, gender, age, ethnic group, disability and vulnerable populations, with a special attention to women. 50  See Astrid Jamar, Victims Inclusion and Transitional Justice, 1.

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possible punishments in this part of the transitional justice system, maybe due to the passive role played by victims at this stage of the legal proceedings.51 Only in number 52, on the Peace Court, is there a clarification that concerns the victims and makes them active in the legal proceedings. This section states that in the case of a sentence that goes against the fundamental rights of a victim “with direct and legitimate interest,”52 the victim will be able to seek court protection by appealing the decision to the Appeals Section of the court. This is the only section in which victims are considered able to make legal arguments or to directly participate in the process.53 It seems that, at this point, the justice component of this comprehensive system enacts the mirror principle by which the “victims’ needs were increasingly framed as being capable of being met only in inverse proportion to the extent to which offenders’ needs were recognized,”54 something that does not happen in the truth component of the system, which is precisely organised around the victims’ needs to know. Only in the case of the Colombian system of transitional justice, the mirror returns an empty image of the victims due to the imprecision to define them, who, in relation to the perpetrators, are only found in the section concerning truth, and in relation to the state in the reparations and non-repetition components. In the reparations component, the victims go back to centre stage and the document is organised around a types of acts that are meant to contribute in diverse forms to reconciliation through reparation.55 They range from early acts of recognition of collective responsibility, with important religious and symbolic components, to concrete actions contributing to 51  The section on the “List of Sanctions” includes two elements that revolve directly around the victims’ rights. First, a statement saying that the list has been created taking into account the commitments about reparations of the victims and guarantees of non-repetition. And second, in cases of participation (already carried out) in the removal of unexploded mines and explosives, these activities will be considered as part of the sanction if the activity has repaired the victims or has had a repairing impact. Negotiation Table, Borrador Conjunto Víctimas, 45. 52  Ibid., 36. 53  A principle of active participation that is considered key to really implement the alleged role of the victims as protagonists in transitional justice, as opposed to the simplest role of being the centre of the peace agreement between the government and the guerrillas. 54  Kieran McEvoy and Kirsten McConnachie, “Victimology in Transitional Justice,” 530–532. 55  Pamina Firchow, “Do Reparations Repair Relationships? Setting the Stage for Reconciliation in Colombia,” International Journal of Transitional Justice 11, no. 2 (2017): 316.

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reparation and to the collective reparation in the end of the conflict, which include specific government plans for development in the territories. It is difficult to ascertain whether this language will help solve what Firchow has called the “nomothetic approach to reparations in Colombia, which requires that each problem be attended to by a different law.”56 To this level, the question is whether the semantics around the integral quality of the system about victims contain the germs for the development of on-­ the-­ground mechanisms that will combat the nomothetic approach and the open-ended definition of victims contained in the agreement. Finally, the language of reparations focuses on psychosocial rehabilitation, including for victims of sexual violence, the return of displaced and exiled persons, and the restitution of lands. The language of reparations in the agreement seems to take into account the approach: suggesting that transformative reparations should also encourage women’s active participation, both throughout the reparation process (internal representations) and in society (external representation), through enhancing equity and promoting women’s access to economic resources.57

However, the lack of details in this section of the agreement makes it difficult to predict that its implementation would avoid the obstacles encountered in the ground by similar principles of the Victims Law.58 Likewise, the paucity of details obscures the understanding of how the agreement would activate the necessary mechanisms to measure peace at the local level59 and across all the dimensions of victimhood contained in it. The last section deals with the creation of institutional mechanisms to guarantee the participation of the victims and their organisations in the implementation of the policy of attention and reparations to victims going forward.60 In total, the term “victims” appears 54 times in this rather short part of the document.  Ibid., 333.  Sanne Weber, “From victims and mothers to citizens: Gender-just transformative reparations and the need for public and private transitions,” 90. 58  Ibid., 91. 59  Pamina Firchow, “Do Reparations Repair Relationships?” 318. 60  Referring to interviews conducted in 2010, Rowen states that the “idea of recognition reflects beliefs about what transition in Colombia would entail: not only would the state recognize the existence of an armed conflict, but also victims would have a national platform to voice their experience and, ideally, to participate in policy decisions that affect them. The (Truth) Commission would not contribute to a transition, but would be a product of it. This 56 57

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The component on Guarantees of Non-Repetition distils a philosophical tone that summarises the ideas and principles that structure the rest of the document. It does not include explicit actions or plans but delves into the reasons behind the design of the Comprehensive System for victims. It also collects some of the desires that should inform the political action of the government in the future and sought to characterise the new political climate of coexistence in the country once the conflict has ended. This includes the protection of the human rights of the populations and groups most affected by the conflict, the obligation of the government to guarantee the protection of individuals and political parties, and prevent events like the massacres suffered by members of the Unión Patriótica,61 the fight against impunity and the elimination of criminal organisations. “Victims” almost disappear to a total of three occurrences.

Expanding the Description of “Victims” All the most used terms in the Joint Agreement on Victims are conceptual pillars of the Comprehensive System designed by the parties, of which transitional justice or JEP makes up the core. This connection among the conflict, the victims and the justice component of the agreement is made evident in one of the most important paragraphs of this document as it details the concept of victim advanced in the first paragraph of the preamble: The armed conflict, that has multiple causes, has caused the people unparalleled suffering and harm in our history. There are millions of Colombians (colombianos and colombianas) who are victims of forced displacement, there are some hundred thousand deaths, scores of thousands of disappeared people of all types and a wide array of collective groups and populations affected across the territory, including communities of peasants, indigenous, AfroColombian, black, palenques, raizals and rom, political parties, social movements and unions, guilds, among others. Not to mention other less visible but not less painful forms of victimization, such as sexual violence, psychological consequences, or the simple coexistence with fear.62 ideal of a Truth Commission, in turn, affects their understanding of transitional justice in Colombia. A real transition would be a society in which victims have a public platform, such as a Truth Commission, to voice their suffering.” See Rowen, 637. 61  The Patriotic Union is a left-wing Colombian political party founded in 1985 as part of a legal political proposal of several guerrilla groups, including the Movement for Self-Defense of Workers and two demobilised fronts, Simón Bolívar and Antonio Nariño, of the FARC. 62  Negotiation Table, Borrador Conunto Víctimas, 3.

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The paragraph expands the official definitions of victim63 that, based on the notion of “personhood,” are included in international legal documents. It integrates elements for an extended definition of victims of armed conflicts at the end of the second decade of the twenty-first century in legal, political, cultural, military and humanitarian terms, stating that “no victim is only a victim, but also an actor with many identities, roles and resources.”64 This type of definition includes the gender lenses: both men and women. It also covers both individuals and collectives that are clearly self-identified as such in either cultural or legal terms: communities of peasants, indigenous, Afro-Colombian, black, palenques,65 raizals66 and rom,67 political parties, social movements and unions, guilds. It comprises a typology of damages suffered by the victims—forced displacement, killings, disappearances—and it also contains other types of violence and its consequences as recognised by the International Criminal Court,68 including sexual violence, psychological damages and fear. This expanded description seems like an attempt to surpass the limitations of Law 1448 (2011) and integrate the complex reality of victimhood in Colombia,69 preparing the ground for a more attuned set of mechanisms that would  Luc Huyse, “Victims,” 57.  Ibid., 56. 65  The palenquera community is made up of the descendants of the enslaved who, through acts of resistance and freedom, took refuge in the territories of the North Coast of Colombia since the fifteenth century called palenques. There are four recognised palenques: San Basilio de Palenque (Mahates—Bolívar), San José de Uré (Córdoba), Jacobo Pérez Escobar (Magdalena) and La Libertad (Sucre). 66  It refers to the native population of the Islands of San Andres, Providencia and Santa Catalina descendants of the union between Europeans (mainly English, Spanish and Dutch) and African slaves. They are distinguished by their culture, language (Creole), religious beliefs and historical past similar to the Antillean peoples such as Jamaica and Haiti. Given its cultural specificity it has been the subject of policies, airplanes and socio-cultural programmes differentiated from other black communities of the Colombian continent. 67  Rom is an ethnic group in Colombia mainly located in the departments of Atlántico, Bolívar, Norte de Santander, Santander, Valle del Cauca, Nariño and Bogota. 68  The Elements of Crimes are reproduced from the Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3–10 September 2002 (United Nations publication, Sales No. E.03.V.2 and corrigendum), part II.B. The Elements of Crimes adopted at the 2010 Review Conference are replicated from the Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala, from 31 May to 11 June 2010 (International Criminal Court publication, RC/11). 69  This is the term used by Rowen to criticise the language and content of Law 1448, 2011 in relation to the victims. See Rowen, “‘We Don’t Believe in Transitional Justice’,” 642. 63 64

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achieve justice for all types of victims of the Colombian conflict. At the same time, it also clearly reflects the difficulties expressed by several scholars to provide a satisfactory definition and a comprehensive categorisation of victims in processes of transitional justice.70 These ambitious goals are the result of victims’ participation in the negotiations in Havana, one of the outstanding elements of Colombia’s peace process and the resulting system of transitional justice. And it might be the diversity of the voices listened to by the government and the FARC during the negotiations that led to the adoption of a definition that left some aspects open. These include the number of victims, estimated to be in the millions, although the Single Registry of Victims offers very specific numbers based on administrative requirements.71 It also includes the great variety of groups and affected populations, whose list ends with the expression “among others,” and the use of instances of other forms of violence, as in, “such as, such as” instead of a rigorous set of criteria or a closed list when referring to other forms of victimisation. It is not a closed or strict definition, but an adaptable and adjustable statement that tries to step around the classification of victims in categories.72 The description of victims agreed upon in Havana also tries to reflect as much as possible the multiple dimensions and gravity of the suffering of victims in the Colombian armed conflict. As a result, the open-ended description of victims falls into the instability or liquidity between the semantically limited language of peace in the Havana conversations and the complex reality this language tries to capture. The more the language of the agreement attempted to touch upon the issues that limit the victims to space, time and diversity,73 the more difficult the effort became. It is as though the victims, the human beings, as well as the words that define them, became fluid in the whirl of unstable elements of the list. The reader is left to imagine the rest, both the unspeakable dimensions of victimhood, 70  Mijke de Waardt, “Naming the Victims: The Semantics of Victimhood,” International Journal of Transitional Justice, 10 (2016): 432–433. 71  There are 8,250,270 victims of the armed conflict registered according to the Unique Victims Registry. Accessed 6 December, 2018. https://rni.unidadvictimas.gov.co/RUV. 72  Huyse classifies victims along three “broad distinctions”: individual-collective, directindirect and first-second generation victims whereas Nesiah highlights the complexities surrounding the establishment of formulas for victim-centred processes of transitional justice. See Luc Huyse, “Victims,” 54; Vasuki Nesiah, Transitional Justice Practice, 26. 73  The Comprehensive System explicitly declares that has “an equity-based and genderbased approach.” Negotiation Table, Borrador Conjunto Víctimas, 5.

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and all other possible types of victims not contained in this list.74 The writers of the agreement on victims struggled on the one hand to avoid the exclusion and the discouragement of collective action that de Waardt has identified for the case of Peru as side effects of “external semantic victim categorization.”75 On the other hand, the same difficulties appeared when the drafters attempted to capture the plurality attached to the diversity of violence suffered by human beings in the long Colombian conflict. By doing that, they drove the language of peace and victimhood off the cliff of the unlimited. The list, according to Umberto Eco, becomes a tool to stir the world, to put into practice Thesaurus’ invitation to accumulate properties so that new relations among things that are normally far away from each other emerge, or, in any case, to put into question those that are accepted by common sense.76 The distance between the sought-after effects of this type of list, which is an invitation to explore plurality and reorganise relations, and the semantic consequences it actually produces is made clear in Foucault’s assertion that those lists create certain monstrosities by reducing to nothing the space for common encounters.77 Victims are closer, but they cannot coexist in the same space. The second feature of the description of victims in the peace negotiations in Colombia is its reliance on a victims’ identity perspective. This approach is the result of the deployment of the principle of diversity78 assumed at a conceptual level by the negotiating teams and channelled through the participation of groups of victims in several audiences throughout the negotiations.79 Beyond the dilution of diversity into the unlimited elements of the list, the notion of victim sought after by both 74  Umberto Eco has explored the unspeakable character of certain lists that play with that rhetorical topos. See Umberto Eco, The Infinity of Lists (London: MacLehose, 2012), 49. 75  Mike de Waardt, “Naming the Victims,” 444. 76  Eco, The Infinity of Lists, 327. 77  Eco, The Infinity of Lists, 395. 78  That is, through the gender politics described by Catherine O’Rourke in terms of “state liability for private harms,” “the militarization of everyday life,” “acute public regulation of women’s private reproductive lives” and the “public political manipulation of women’s organizing.” See Catherine O’Rourke, “Feminist scholarship in transitional justice: a de-politicising impulse?” Women’s Studies International Forum 51 (2015): 122. 79  Patricia Lundy and Mark Govern, “Whose Justice? Rethinking Transitional Justice from the Bottom Up,” Journal of Law and Society 35, no. 2 (2008): 279–283.

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negotiators and victims falls short of its goal because of the use of what Brubaker and Cooper have called “the prevailing constructivist stance of identity—the attempt to ‘soften’ the term, to acquit it of the charge of ‘essentialism’ by stipulating that identities are constructed, fluid and multiple.”80 Indeed, it is this constructivist approach to identity81 that ends up filling up and almost taking over the description of victim. The result is a proliferation of multiplicities that preclude the political potential82 in Colombia’s social, cultural, and ethnic diversity and fail to take shape in the terms of description of the justice component of the Final Agreement.83 As Angel-Botero has explained for the case of peasants when considered as a group category, transitional justice reiterates the differences previously created by the implementation of notions of multiculturalism in this sphere, which resulted in rendering the peasant unreadable by state-sponsored programmes and policies.84

80  Rogers Brubaker and Fredrick Cooper, “Beyond ‘identity’,” Theory and Society 29, no. 1 (2000): 1–47. 81  Rarna Kapur denounced that as well intentioned as it was, the attempt to integrate cultural diversity into a gender analysis resulted in more “cultural essentialism and the construction of other as backward and uncivilized,” especially when approach through the lenses of violence, which is the perspective taken in transitional justice mechanisms. See Rarna Kapur, “The Tragedy of Victimization Rhetoric: Resurrecting the ‘Native’ Subject in International/PostColonial Feminist Legal Politics,” Harvard Human Rights Journal 15, no. 1 (2002): 18. 82  It is not clear how the action path argued for by Paul Gready and Simon Robins in order to widen and deepen the “conceptualization of the role that civil society plays in transitional justice processes” by advancing the concept and role of a new civil society in transitional justice and replacing the latter with the concept of “justice in transition” would be more effective in a country whose state struggles to effectively reach large parts of the territory and to provide some of the basic public services characteristic of socio-liberal states. The manipulation of the debate around the “gender ideology” allegedly hidden in the agreement and the negative result in the plebiscite are proof of both the political manipulation of the notion of victims and the practical difficulties to articulate principles of diversity that are socially acceptable and legally useful in a post-conflict Colombia. See Paul Gready and Simon Robins, “Rethinking Civil Society and Transitional Justice: Lessons from Social Movements and ‘New’ Civil Society,” The International Journal of Human Rights 21 (2017): 956. 83  It is important to acknowledge that the selection process of the members of the multiple organisms of the transitional justice system has been guided by principles of equity, diversity and inclusion. 84  Carolina Angel-Botero, “Reproduciendo diferencia: la negociación de identidades ciudadanas en el marco de la justicia transicional,” Revista de Estudios Sociales 59 (2017): 46.

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The list of victims contained in this description comprises who the victims are, but also who will be considered victims in the future, in the case that some of the open clauses of the text become active at some point.85 The gravity and moral weight of the atrocities described in this fluid definition are resisted by the liquidity of the words needed to capture them.86 Victims are considered fluid in two respects, what results in an ambiguous language that makes it difficult to effectively implement the system. First, their number and composition are open and can be extended if the conditions for their belonging change. That is, the concept of victim in the Colombian agreement assumes that the condition it represents is not necessarily binary and, therefore, it cannot be captured as a set of positive or negative components. Victimhood fails to be defined when the definition is based on dialectical antagonisms87 that condemn victims to stay forever in an emotional and social state of victimhood. The signals of victimisation occupy a wide and somehow continuing spectrum, and these need to be expressed through a more nuanced and complex language. Second, those signs undergo a process that connects them with time at an essential level and makes it necessary to protect their condition in the future. The difficult relationship between victims, time, and language has been recognised at the level of the individuals’ self-perception88—as “the term victim defines them in terms of their past.”89 But what about their condition of victims in the future, once the ideal state of a “stable and long-lasting peace” has been achieve. Are victims considered ex-victims once transitional justice has been served? Should transitional justice conceptually consider several steps to facilitate the transition of victims to a new condition as ex-victims similar to the condition performed by ex-­combatants?90 If deployed efficiently, that is, if the peace 85  Daniel Ruiz Serna has argued that the Law of Victims (Law 1448, 2011) could be interpreted as acknowledging the territory itself as a victim of the conflict and therefore making it a subject of rights. This would align the concept of territory better with indigenous ontologies via the extension of the traditional notion of victimhood. See Daniel Ruiz Serna, “El territorio como víctima. Ontología política y leyes de víctimas para comunidades indígenas y negras en Colombia,” Revista Colombiana de Antropología 53, no. 2 (2017): 88. 86  Zygmunt Bauman, Liquid Modernity (Cambridge: Polity Press, 2003), 18. 87  Mike de Waardt, “Naming the Victims,” 446. 88  Luc Huyse, “Victims,” 60. 89  Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War, (Cambridge: Polity Press, 2002). 90  “That is, it is a passage of sorts between two states of affairs that seek to address past abuses while preparing for a future of peace, stability, and the rule of law shaped by human

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agreement is successfully implemented, would this transition end up with the restoration of the victims’ dignity and their own estimation as integrated citizens91 and full members of their communities? Only, then victims will become past-victims92 and peace might become a reality, individually and collectively.93

Conclusions Analysing the language on victims in Colombia’s peace agreement is key to understanding whether the numerous statements of the negotiating parties about the centrality of the victims in the agreement were actually reflected in the intricacies of such complex political and legal document. At stake is whether language can become an ameliorating factor that would buttress the TJ process and promote permanent peace. rights. Thus, any gains made through processes of transitional justice should not end with such processes, but should be used as a base by the transitional governments upon which to build, reinforce, and grow, in order to ultimately reach the desired model of society and governance.” Samar El-Masri, Tammy Lambert & Joanna Quinn, “Changing the context: can conditions be created that are more conducive to transitional justice success?” in this volume. 91  The testimony collected by Mike de Waardt from some Peru’s victims reinforces the duality between victimhood and citizenship that characterises the practical measures of that country’s transitional justice system. See Mike de Waardt, “Naming the Victims,” 433. In the complex problem of making the victims the protagonists in transitional justice, Juan E. Méndez has argued the importance of a human rights perspective in demanding “affirmative measures to ensure that victims, survivors and their families would now be recognized as first-class citizens with specific rights and entitlements.” See Juan E. Méndez, “Victims as Protagonists in Transitional Justice,” International Journal of Transitional Justice 10, no. 1 (2016): 1–5. 92  It is the triple dimension of the mechanism of recognition/acknowledgement—of the victims as such—the voluntary recognition of responsibilities by those who participated in the conflict and of the society as a whole of this legacy of violations and infractions that substantiates the definition of victim here. Specifically, the first dimension of recognition talks of “victims as citizens (ciudadanos y ciudadanas) whose rights were infringed and as political subjects who are vital for the transformation of the country.” Negotiation Table, Borrador Conjunto Víctims, 8. 93  Although the language in the peace agreement gets closer to articulate this transition, the well noted fact that only a minority of victims get the benefits of transitional justice due to lack of resources will likely preclude a satisfactory implementation of those principles. Loyo Cabezudo has made an overall positive evaluation of the Comprehensive System of Transitional Justice included in the Final Agreement, although this author has also pointed out what she considers loopholes in the articulation of the relations between the Justice and Truth components. See Loyo Cabezudo, “La justicia transicional en Colombia: ¿Un instrumento para erradicar la impunidad?,” Anuario Iberoamericano de Derecho Internacional Penal, 5 (2017): 38–39.

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The analysis of the documents published by the Negotiation Table shows that the victims play a salient linguistic role only in very specific moments of the negotiations and are, at least linguistically, mostly absent when the parties talk about issues other than the item on victims. Even on the question of victims, the results are mixed. On the one hand, the victims emerge into the language only when the word “conflict” is used to describe the situation in Colombia over the last fifty years. In the case of the Historical Commission, the analysis of the causes of the conflict assumed the ideological or disciplinary lenses of the authors, leaving aside, for the most part, the study of the victims. On the other hand, the conflict and the victims are inextricably linked because a third element, the culprits, need both of those elements to enter the solution of the problem through the Special Jurisdiction for Peace. In this respect, one wonders if the victims are just an excuse needed to salvage other parts of the agreements, in particular, the requirements of special justice systems that are typical of transitional justice. The necessity of creating systems of transitional justice that compensate the victims and allow for the reintegration of perpetrators into society and that return both victims and victimisers to the condition of citizens is generally agreed to be worthwhile. However, if the goals and promises inserted in the Comprehensive System designed in Colombia are not fulfilled during its implementation, then the revictimisation of the victims would only serve to legitimate an agreement that some scholars have described as a pact between elites.94 Therefore, the victims would not reap any of the benefits that should flow to the components of truth, reparations, non-repetition and political participation. Such perversion of the transitional justice system’s integrity and of the Final Agreement’s goals would result in a new violation of the victims’ rights, in this case by the state, as one of the results of the accord is the elimination of the FARC as a political actor outside the boundaries of the state.95 The victims would not be able to make the transition into citizenship. In the “Comprehensive System of Truth, Justice, Reparations and Non-Repetition,” the parties struggle to propose a stable definition of victim and language serves as the malleable conduit for a very fluid concept of victim that integrates many of the ideas coined by postcolonial and 94  León, Juanita, “‘Los acuerdos de La Habana básicamente son un acuerdo de élites’: Luis Jorge Garay,” La Silla Vacía, 14 April 2016, https://lasillavacia.com/historia/ los-acuerdos-de-la-habana-b-sicamente-son-un-acuerdo-de-lites-luis-jorge-garay-55462. 95  The preeminence of the national government—and the role as principal actor among the institutions of the state—as the main political actor after the conflict is made evident by its position as the most used term throughout all the documents and the Final Agreement.

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feminist cultural theories. The more fluid the concept, the better the chances of adopting a description that serves the goal of recognising diversity in the forms of citizenship. This seems to have been the decision of the parties after listening to the victims. It is in this section of the documents that the victims play a key role in pushing the boundaries of the concept of citizen and become the main subject to test if all branches of the Colombian state would have the willingness and ability to deliver on the plans and mechanisms that make concrete the victims’ recovery of their rights. Finally, we recommend that in future negotiations, the parties test the content of the documents they publish to make sure that their public declarations and the principles that inspire the negotiations are really reflected in the language choices they make. Given the complexity and duration of the negotiations and the length and number of the documents, natural language processing and artificial intelligence techniques would offer a cheap and efficient manner to automatically read the documents and test the linguistic assumptions of the negotiators. By doing this, the parties will make sure that the assumed pre-conditions they have established to guarantee the success of the proposed transitional justice system will, in effect, be directly derived from the language they use. At the end of the day, the language of the agreement is the only thing left after the conflict ends and peace becomes the natural way of society moving forward. The alternative is to make the victims also victims of language.

Bibliography Angel-Botero, Carolina. “Reproduciendo diferencia: la negociación de identidades ciudadanas en el marco de la justicia transicional.” Revista de Estudios Sociales 59 (2017): 44–55. Bird, Steven, Ewan Klein, and Edward Loper. Natural Language Processing with Python. California: O’Reilly Media, 2009. http://www.nltk.org/book/. Brubaker, Rogers and Fredrick Cooper. “Beyond ‘identity’.” Theory and Society 29, no. 1 (2000): 1–47. Comisión Histórica del Conflicto y sus Víctimas. Contribución al entendimiento del conflicto armado en Colombia [Contribution to the understanding of the armed conflict in Colombia]. Bogotá: Ediciones Desde Abajo, 2016. de Waardt, Mijke. “Naming the Victims: The Semantics of Victimhood.” International Journal of Transitional Justice 10 (2016): 432–433. Firchow, Pamina. “Do Reparations Repair Relationships? Setting the Stage for Reconciliation in Colombia.” International Journal of Transitional Justice 11, no. 2 (2017): 315–318.

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Gready, Paul and Simon Robins. “Rethinking Civil Society and Transitional Justice: Lessons from Social Movements and ‘New’ Civil Society.” The International Journal of Human Rights 21 (2017): 956–975. https://doi.org /10.1080/13642987.2017.1313237. Huyse, Luc. “Victims,” in Reconciliation After Violent Conflict. A Handbook, edited by David Bloomfield, Teresa Barnes and Luc Huyse. Stockholm: International Institute for Democracy and Electoral Assistance, 2003. Jamar, Astrid. Victims Inclusion and Transitional Justice: Attending to the Exclusivity of Inclusion Politics: PA-X Report: Transitional Justice Series. Edinburgh: The University of Edinburgh, 2018. Jaramillo, Sergio. El tiempo de las víctimas [The moment of victims]. Bogotá: Oficina del Alto Comisionado para la Paz, 2014. http://www.altocomisionadoparalapaz.gov.co/Prensa/Discursos/Documents/el_tiempo_de_las_ victimas.pdf. Jones, Eric, et al. SciPy: Open Source Scientific Tools for Python. Accessed December 26, 2017. https://www.scipy.org. Kapur, Rarna. “The Tragedy of Victimization Rhetoric: Resurrecting the ‘Native’ Subject in International/Post-Colonial Feminist Legal Politics.” Harvard Human Rights Journal 15, no. 1 (2002): 1–37. León, Juanita. “‘Los acuerdos de La Habana básicamente son un acuerdo de élites’: Luis Jorge Garay.” La Silla Vacía. April 14, 2016. https://lasillavacia. com/historia/los-acuerdos-de-la-habana-b-sicamente-son-un-acuerdo-delites-luis-jorge-garay-55462. Loyo Cabezudo. “La justicia transicional en Colombia: ¿Un instrumento para erradicar la impunidad?” Anuario Iberoamericano de Derecho Internacional Penal 5 (2017): 32–61. Lundy, Patricia and Mark Govern. “Whose Justice? Rethinking Transitional Justice from the Bottom Up.” Journal of Law and Society 35, no. 2 (2008): 279–283. Mani, Rama. Beyond Retribution: Seeking Justice in the Shadows of War. Cambridge: Polity Press, 2002. McEvoy, Kieran and Kirstent McConnachie. “Victimology in transitional justice: Victimhood, innocence and hierarchy.” European Journal of Criminology 9, no. 5 (2012): 527–538. Meertens, Donny and Margarita Zambrano. “Citizenship Deferred: The Politics of Victimhood, Land Restitution and Gender Justice in the Colombian (Post?) Conflict.” International Journal of Transitional Justice 4, no. 2 (2010): 6–200. Méndez, Juan E. “Victims as Protagonists in Transitional Justice.” International Journal of Transitional Justice 10, no. 1 (2016): 1–5. Negotiation Table. Acuerdo General para la terminación del conflicto y la construcción de una paz estable y duradera [General Agreement to End the Conflict and Build a Stable and Lasting Peace] Havana, 2012. https://bit.ly/2RrhIwj.

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Negotiation Table. Comunicado Conjunto June 7, 2014. Havana. https://goo. gl/jFcc3o. Negotiation Table. Borrador Conjunto Acuerdo sobre las Víctimas del Conflicto [Joint Agreement on Victims of the Conflict]. Havana, 2015. https://goo. gl/KCrpP6. Negotiation Table. Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace. Translated by British Council in Colombia. Bogota: Office of the High Peace Commissioner, 2016. https://goo.gl/RDsEPe. Nesiah, Vasuki. Transitional Justice Practice: Looking Back, Moving Forward. Amsterdam: Impunity Watch, 2016. O’Rourke, Catherine. “Feminist scholarship in transitional justice: a de-­politicising impulse?” Women’s Studies International Forum 51 (2015): 118–127. Pedregosa, Fabian et al. “Scikit-Learn: Machine Learning in Python.” Journal of Machine Learning Research 12 (2011): 2825−2830. http://www.jmlr.org/ papers/v12/pedregosa11a.html. Pehar, Drazen. “Use of Ambiguities in Peace Agreements.” In Language and Diplomacy, edited by Jovan Kurbalija and Hannah Slavik. 163–200. Malta: DiploProjects, 2001. Python Software Foundation, Python. Accessed December 26, 2017. https:// www.python.org/. Rowen, Jamie Rebecca. “‘We Don’t Believe in Transitional Justice’: Peace and the Politics of Legal Ideas in Colombia.” Law & Social Inquiry 42, no. 3 (2017): 622–647. Ruiz Serna, Daniel. “El territorio como víctima. Ontología política y leyes de víctimas para comunidades indígenas y negras en Colombia.” Revista Colombiana de Antropología 53, no. 2 (2017): 85–113. Thompson, Mark. Enough Said: What’s Gone Wrong with the Language of Politics? New York: St. Martin’s Press, 2016. Tribunal Administrativo de Cundinamarca. No. 250002341000201701993-00, 2017. https://goo.gl/94LHHq. UN Security Council. UN Resolution 242. 1967. https://undocs.org/S/ RES/242(1967). Weber, Sanne. “From Victims to Mothers to Citizens: Gender-Just Transformative Reparations and the Need for Public and Private Transitions.” International Journal of Transitional Justice 0 (2017): 88–107.

CHAPTER 6

Transitional Justice in the Wake of Resource Wars Jim Freedman

The conventional wisdom that wars occur when a perceived injustice evokes a violent response has undergone a significant change in the last three decades, and this change requires now a broadening of the notion of war. Conflicts nowadays may not have much to do with justice or injustice, political grievance or protecting a patrimony and yet they are still wars. This broadening of the notion is significant for how we think about conflict. It is also significant for how brokers, reconcilers and truth commissions think about peace and peace-making. It has been said that war is too serious a matter to be driven by something as crass as money since this was for criminals and hardly the concern of soldiers whose job was more noble. But there is now little choice but to rethink this and accept that wars may well be as much about material gain as right and wrong. Wars between sovereign countries have diminished following the end of the Cold War. In their place, wars have arisen between interest groups and ethnicities and regions within single countries; these are smaller and more local, and lacking the resources of world powers, J. Freedman (*) The University of Western Ontario, London, ON, Canada e-mail: [email protected] © The Author(s) 2020 S. El-Masri et al. (eds.), Transitional Justice in Comparative Perspective, Memory Politics and Transitional Justice, https://doi.org/10.1007/978-3-030-34917-2_6

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they need to finance themselves. This chapter refers to intra-state conflict when it speaks of contemporary conflicts. This financing is far easier1 than previously, now that trade networks linking the sale of resources to the purchase of arms allow smaller groups ready access to resources. And while the assets they seize may initially be a means to an end—financing the conflict—it may not be long before seizing assets becomes an end in itself. These wars may well begin with a concern for righting wrongs. But after some time, the wrongs become less important than maintaining the money-making activities and the trading networks that give soldiers a job and, in addition, give them relief from the poverty that many of them would otherwise suffer.2 This is not noble nor does it have any redeeming features. But it is war, a new form of war and one that, for all intents and purposes, kills and maims and under-develops participants just like the older ones. The difference is the economic activities that keep them going. The phrase, “greed and grievance” has become the leitmotif of a burgeoning literature on this subject, the changing character of contemporary armed conflict.3 This literature is now the lens through which this changing pattern of armed conflict is described. Commentators, researchers and analysts now recognise a rough distinction between two kinds of wars: (1) those that feed on grievances or on rallying a population around an ethnicity, a cause or political issue, and (2) those that feed on greed or as Paul Collier artfully wrote, on “doing well out of war.”4 Wars motivated by injustices or intensely felt convictions have been ones where combatants have acted with honour and taken upon themselves the risk of winning for a just cause. Newer wars are, by contrast, opportunistic, fought for financial gain, and it matters little whether combatants and 1  In a moment of remarkable candour during the early days of his march across the Congo to depose Mobutu in 1996, Laurent Kabila told a reporter that all he needed for a civil war was 10,000 men and a SAT phone. The SAT phone was to raise money from transnational mineral companies by selling off future rights to profits from mineral deposits. See Michael Ross, Booty Futures: Africa’s Civil Wars and the Futures Market for Natural Resources, July 24, 2002, http://www.allacademic.com/meta/p65343_index.html. 2  Mats Berdal and David Keen, “Violence and Economic Agendas in Civil Wars: Some Policy Implications” Millennium: Journal of International Studies, 26, no. 3 (1997), 795–818. 3  Mats Berdal and David Malone, Greed and Grievance: Economic Agendas in Civil Wars. (Boulder, CO: Lynne Rienner, 2000); Paul Collier and Anke Hoeffler, Greed and Grievance in Civil War (Washington: World Bank Policy Research Working Paper 2355, 2002). 4  Paul Collier, “Doing Well out of War: An Economic Perspective,” in Greed and Grievance: Economic Agendas in Civil Wars, eds. Mats Berdal and David Malone (Boulder: Lynne Rienner Publishers, 2000), 91.

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victims are trained combatants or people who happen to be in the way of the loot; the loot is an end in itself and the means are of minor consequence. The kind of preexisting condition—in this case wars of greed or wars of grievance—has profoundly different consequences for bringing conflicts to an end. Formal transitional justice (TJ) processes are a product of the same historical events that have wrought significant changes in warfare. Truth commissions, for example, have sought novel peacemaking strategies just as economists have described the emergence of different motivations for conflict. And yet, ironically, they have not informed each other. Economists have not said much to transitional justice advocates about pertinent areas of focus, and transitional justice practitioners have heeded very little the consequences of new understandings of warfare. This matters, especially, as transitional justice architects devise a plan that will appeal to the leaders of the warring parties while minimising the impact of those who attempt to stand in the way. As the following cases of the Democratic Republic of the Congo (DR Congo) and Sierra Leone show, open discussions between opposing groups on making amends have little effect if the war is less about political wrongs and more about greed. In neither of the cases were there any of the favourable preconditions that might have made transitional justice exercises more likely to produce real peace dividends. The exercises started from scratch. The burden fell inevitably on creating ameliorating factors, on developing strategies to improve the chances for bringing protagonists to the table. Efforts were indeed made. However, it is not their success that informs this chapter but rather their lack of success—far more dramatic in the DR Congo than in Sierra Leone. This lack of success helps identify what ameliorating factors might have been relevant, what pieces in the logic of peace-making might have made a difference had they been there. One factor in particular appears to be conspicuously missing and it is an inducement customised for combatants who have been fighting over economic resources. These cases demonstrate that some special features must be present where conflicts have an important economic dimension. In fact, where conflicts have morphed into selling valuable commodities there may in fact be little to talk about if competition over resources and economic gain are not part of the conversation. It is important therefore for transitional justice architects to add some important elements to their tool kit, namely remedies for aggression caused by greed. Transitional

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justice processes are likely to do a lot better if they come armed with some of the international remedies which have emerged to address these particular features of the new wars.

DR Congo Extreme though it is, the case of the DR Congo illustrates the perils of formal transitional justice processes applied to the new wars. Hostilities in the DR Congo began when Rwanda and Uganda combined forces and marched across the country to depose the long-ruling despot Mobutu Sese Seko. The combined forces installed a new ruler, Laurent “Le Pere” Kabila, with promises of government reform. Rwanda wanted Kabila to serve their interests and when it became clear he would not, Rwanda and Uganda marched into Kinshasa two years later to teach him a lesson. But Kabila stood firm. He invited forces from Zimbabwe, Angola and Namibia to come to defend him against the Rwandan and Ugandan forces who, undeterred, held their ground; in the end, the result was what became known as Africa’s World War5 with Kabila and his allies and their local proxies on one side and Rwanda and Uganda with their local proxies on the other. The conflict may have begun initially as a political one but this was short-lived. By 1998, Rwanda and Uganda had staked out large portions of the DR Congo that they claimed to control where they seized anything of value and used it to finance the war effort.6 The armies of Zimbabwe, Namibia and Angola, and allies of Kabila did the same. For a brief while in 1998 and 1999 it was a free-for-all struggle among these various armies, including the national Congolese armed forces, for minerals, gems and other valuable assets. The ceasefire agreement signed in Lusaka at the end of 1999 was symbolic at best. Fighting and looting increased between 1999 and 2002 and by the end of 2002, pockets of conflict could be found throughout the country, sometimes between national armies or their local proxies, sometimes involving foreign armies and local defence groups, and sometimes 5  Gerard Prunier, Africa’s World War, Congo, the Rwandan Genocide and the Making of a Continental Catastrophe (Oxford: Oxford University Press, 2009). 6  A case was filed with the International Court of Justice by the Democratic Republic of the Congo in 1999 seeking reparations for armed actions by Uganda, Rwanda and Burundi on the territory of the Democratic Republic of the Uganda. In 2005, the Court ordered Uganda to pay reparations. The cases against Rwanda and Burundi were ruled out of the Court’s jurisdiction. No reparations have yet been paid.

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between foreign or local armies and citizens. The human cost was staggering. By the end of 2003, the International Rescue Committee estimated as many as five million persons had died as a result of the conflict and its consequences. It was not until December 2002 that another agreement, the Global and Inclusive Agreement on Transition was signed. This agreement brought together eight different protagonists. One was the DR Congo government itself; five were political groups, most of whom were recently constituted political parties that served as covers for the interests of foreign or local militias; there was a local self-defence rebel group and finally a consortium of civil society organisations. This group of eight became known as the Inter-Congolese Dialogue, and one of the things this group of eight agreed to do was implement a truth and reconciliation commission. The core composition of the Truth and Reconciliation Commission included representatives of these eight bodies. The Commission then added thirteen others, but these were not “official” and were never more than peripheral to the proceedings. The reality was that the conflict was ongoing, and among the eight core participants, seven were warring factions involved in the conflict. Instead of constituting an impartial body, the Commission was a microcosm of the conflict that the Commission purported to neutralise.7 There had been the idle hope that including members from strong civil society groups would bring a detached perspective, but in fact, the reverse happened. Civil society members fell prey to the stronger warring factions represented on the Commission undermining the effect of civil society altogether. The Commission lost its purpose. In the end, the Commission “gave up on truth seeking and instead focused on conflict-prevention and conflict-­mediation activities. As a result, whether by necessity or by choice, the Truth and Reconciliation Commission worked in support of elections. Its complaint-based investigatory functions were abandoned.”8 And once the elections were held, the mandate of the Commission was over, since it 7   Ngoma-Binda and Maitre Nuabda Vuidi, “Justice Transitionelle en R.D.  Congo: L’experience de la Commission Verité et Reconciliation,” Congo-Afrique (Paris: L’Harmattan, 2008). 8  Final Report of the Truth and Reconciliation Commission (Kinshasa: Government of the Democratic Republic of Congo, February 2007), 51; and Elena Naughton, “Democratic Republic of the Congo: Case Study,” Can Truth Commissions Strengthen Peace Processes? (New York: International Center for Transitional Justice and the Kofi Annan Foundation, June 2014), 54.

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was to be part of a “transition period.” Once an election was completed— as it was in October 2006—the transition was concluded and with it, the functions of the Truth and Reconciliation Commission. Since the Commission only began its inquiries in July 2004 and since it concluded in 2006, there was very little time for the Commission to conduct a serious investigation even had it been inclined. But that was not the main reason for the failure. The warring factions had no real interest in ceasing hostilities. By 1999 none of them were particularly interested in the political issues, or what policies would be adopted or what sort of indemnities might be arranged. No one was interested in discussing these issues or airing disagreements on such matters because they were not all that pertinent to the real reason for the persistence of the conflict. They were interested in seizing as much of DR Congo’s resource wealth as possible before the world took serious notice of the scandal that the wars had become and before the shame of what was happening led international bodies to take action to stop it. Eventually, there were serious investigations9 into the seizures of minerals, gems and timber, and these resulted in sanctions imposed in the intervention of foreign stabilisation forces and international judicial proceedings against some of the warlords. The peace-making contribution of the Truth and Reconciliation Commission amounted to very little, if at all.

Sierra Leone The conflict that engulfed Sierra Leone between 1992 and 2000 began very much as the DR Congo conflict began with an effort to overturn a predatory government. In the case of the DR Congo, it was foreign armies that marched in and overturned the government; in Sierra Leone, it was a loose association of disgruntled students, disenfranchised peasants and political elites who had been alienated from the ruling All People’s Congress political party. The students had begun to organise in 1985 and mobilised citizens who came to realise that President Joseph Momoh was, as one study described him, treating “Sierra Leone as his personal fiefdom and felt that he was at liberty to act as if its finances were at his own 9  Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of Congo S/2002/1146 (New York: United Nations Security Council, 16 October 2002).

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disposal no matter what contrary advice was tendered.”10 Over the next seven years, the student-led opposition grew from a protest to a movement to an armed rebellion.11 Public services ceased. Public health workers were no longer paid and clinics were closed. Teachers were no longer paid. There were no instructional materials for schools. Students left school and took their grievances into the streets. The economy was declining as the ruling politicians siphoned earnings away and, most conspicuously, as these same political strongmen funnelled export earnings from diamond sales into their own accounts while public funds declined. As the student movement, the Revolutionary United Front, moved towards an armed rebellion, a new leader, Foday Sankoh, assumed control in 1992 and it was then that the movement was transformed from a vehicle for social protest to an armed movement with support from Liberia. It was also then that the movement focused less on political opposition and more on controlling increasingly large portions of the diamond trade. For the next seven years, both the All People’s Congress and the Revolutionary United Front sustained themselves and their competing claims to power by commandeering what they could of the diamond trade. It was a full-blown humanitarian crisis. Children were recruited for military operations and for work in the diamond fields, civilians were slaughtered while the two opposing groups continued to accumulate wealth from the sale of gemstones. As the atrocities became an international scandal and pressure mounted, the two protagonists—Foday Sankoh of the Revolutionary United Front opposition and President Ahmad Tejan Kabbah of the government—were brought to the table in Lomé, Togo, to sign a peace agreement. This was in mid-1999. The Lomé Peace Agreement laid out the framework for a number of peace-making initiatives including a Truth and Reconciliation Committee. Like the DR Congo, the protagonists in Sierra Leone who signed the Lomé Peace Agreement had little intention of actually ceasing their economic activities. By the mid-1990s, the protagonists had become economic competitors in the diamond fields, and if there was any remnant of 10  Report of the National Commission for Unity and Reconciliation (Freetown: Government Printers, 1996), 8. 11  Jimmy D. Kandeh, “The Criminalization of the RUF Insurgency in Sierra Leone,” in Rethinking the Economics of War: The Intersection of Need, Creed and Greed, eds. Cynthia J. Arnson and I.W. Zartman, (Baltimore: Johns Hopkins University Press, 2005).

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the political issues that had previously sparked student protest, these were buried under the atrocities of the mercenaries who had left politics behind to deal in diamonds. Less than a year after the signing of the Lomé Peace Agreement, the terms of the ceasefire were violated and the accord collapsed. Aggression by the two competing mercenary groups would have continued except for an international intervention that forced its way between the protagonists, arrested Foday Sankoh, the leader of the opposition group and made it increasingly difficult to work the diamond fields.12 It is important to note that it is this use of international force, the removal of one of the protagonists and reduced access by the protagonists to the diamond trade that made it possible to implement the provisions of the peace accord, including the Truth and Reconciliation Commission. Ideally, the Commission would have brought about a measure of reconciliation once hostilities ceased in 1999, following the peace accords. The opportunity was there. But it accomplished little. Hostilities erupted once more driven by the economy of the conflict. It was only later, after hostilities and the diamond trade were forcibly contained, that the Truth and Reconciliation Commission was able to do its work. By the time it was implemented, much of the difficult peace-making had taken place. In addition, parallel with the Commission, a hybrid court, the Special Court for Sierra Leone, began to investigate the worst of the war’s crimes, seized the perpetrators and brought them to trial. The Commission was therefore perceived to be of only modest importance and rightly so as its functions were largely symbolic. Funding was hard to come by. There were disputes about the composition of the Commission. The newly elected government cared little about its work. The Commission was established by an act of parliament in 2000 but with recruitment and other difficulties and only modest government support, the work did not start fully until 2002 and a report was produced in 2004.13 In the end, its role in peace-making in Sierra Leone was mainly after the fact: large numbers of accounts were heard, trauma was duly recorded, the shame of the two sides was exhibited, some person-to-person reconciliation did take place and some of the victims’ pain was assuaged. 12  Elena Naughton, “Sierra Leone: Case Study,” Can Truth Commissions Strengthen Processes? (New York: Kofi Annan Foundation and the International Centre for Transitional Justice, June 2014). 13  International Crisis Group, Sierra Leone’s Truth and Reconciliation Commission: A Fresh Start? (Brussels: International Crisis Group, 20 December 2002).

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If the objectives of formal transitional justice include reinforcing reconciliation and peace, both commissions had limited success—although the transitional justice process in Sierra Leone was more successful than that of the Congo.14 But in the end, it played a minor role in reducing conflict, if it played any role at all, and as such it raises the same questions as does the DR Congo case: what can be done for Truth and Reconciliation Commissions to make them more relevant to ending civil wars?

Truths and Economies In spite of their difficulties and their modest results over the past twenty-­ five years, truth commissions remain an important feature of the post-­ conflict landscape. When very little else has much of a chance of success or of being adopted, there is always a truth commission to propose. They have been established, either by law or decree or by peace agreements over the past twenty-five years, covering North Africa, Sub-Saharan Africa, Latin America, Europe and East and Southeast Asia. A mechanism with this broad reach and mandate needs a strong tool kit, one that is stronger than what the record shows them to have been so far. It is all very well to undertake an appeasement exercise by creating a common ground for protagonists. But in order to make this kind of dialogue work, a truth commission must have a firm understanding of the dynamics of the conflict at issue, and without an appreciation of war’s economic dimension, the main task of “establishing the facts of past violations with rigor and impartiality”15 will probably not occur. In their early stages, the economic factors may be less prominent but in their later stages, as protracted conflicts force armies and rebels to find ways of supporting themselves, the economic dimension is likely to become more prominent. This is something transitional justice processes very much need to know.

14  Some of its successes have been documented by Rosalind Shaw. But this success was limited in many ways, not the least of which is that it did little to restore social cohesion broken by the wars over the diamond. Rosalind Shaw, “Memory Frictions: Localizing the Truth and Reconciliation in Sierra Leone,” The International Journal of Transitional Justice 1, no. 2 (2007), 183–207. 15  Eduardo Gonzalez, “Set to Fail? Assessing Tendencies in Truth Commissions Created After Violent Conflict,” Can Truth Commissions Strengthen Peace Processes? (New York: International Transitional Justice Centre and the Kofi Annan Foundation, June 2014), 1.

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The characteristics of this economic dimension may vary greatly. A credible inquiry may have to consider the effects of plunder or theft or piracy or quasi-legal exploitation; legitimate enterprises may also be involved. Commissions will need to consider remedies for illegal trade including regulatory strategies and other mechanisms for controlling international financial transactions. They will have to consider existing ethical standards and legal directives for responsible corporate governance. Nor is this all. Since non-state armed groups typically finance their aggressions as a way out of poverty, commissions will have to consider the extent of poverty and feasible pro-poor growth responses. These are issues that truth commissions rarely consider even though they are invaluable for strengthening a commission’s capacity to understand why protagonists are in conflict and what areas for dialogue and negotiation might serve to mitigate this. An awareness of these issues is essential for what is proposed here: a marriage of transitional justice practice and the theory of war economies. It may not be an easy union at first because it has to be for real, not show. That means that participants must open their consciences at the same time that they open dossiers documenting theft and plunder. While recounting their sufferings from mutual aggressions in order to lay bare the atrocities each has experienced, they must also lay bare the more devious ways that have been used for bleeding resources in order to pay for the instruments that murdered each other’s families. It will be difficult to find compassionate, commiserating ways to bring these to the table. There will be foreign bank accounts where funds have been deposited. There will be arms dealers and the contracts struck with them. There will be private firms, some of them with reputations to keep confidential, who facilitated sales and purchases and these will have to be brought forward. All along the supply chain of blood commodities, there will be players who turned a blind eye to the consequences of their complicity and they will have to be named. There may be amnesties for individuals who participate in the commissions, but there will also have to be treaties and standards applied and international legal institutions brought in for giving weight and perhaps even undertaking proceedings against some of the actors. The value of truth commissions has often been taken for granted. Testimonies are accumulated and recorded, and reports are submitted, and presumably, from these extended exercises in constructive confrontation and confession, some understandings have emerged. But as positive, as they are assumed to be, on closer inspection they accomplish rather

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little and certainly not much in the way of achieving enduring peace. Quite a few essays have called attention to this fact: that truth commissions may have the best of intentions, but when they are closely examined, they show little success in long-term reconciliation. These may call attention to their inherent weaknesses16 or argue that confidence “in the ability of Truth Commissions and trials to contribute toward restorative, retributive, expressive and utilitarian goals is misplaced.”17 They may claim that the “impact of truth-telling mechanisms in the short term consolidation of peace is almost certainly negligible, if not irrelevant.”18 These observations are compelling. It is clear that while truth commissions have an appeal in principle, their results have so far been limited in practice. The challenge now is to determine where are the weaknesses and what can be done about them.

Disarmament, Microcredit and Truth-Telling Let us now consider what preexisting conditions need to be in place to improve the likelihood of transitional justice processes having greater impact than they have at present. Some important preconditions are well known. The experience in Kenya has shown it is best to avoid covering too many issues as this makes participants sceptical from the beginning. The experience in Burundi has shown that a transitional justice exercise may never get off the ground if there is a chance that key figures will run the risk of being prosecuted. It is best to keep these costs of participation to a minimum. But it is even more important to build in ameliorating factors that would maximise the chances of transitional justice success. The purpose here is not to encumber the transitional justice processes further, which are in any event burdened enough, but rather to link participation in the transitional justice exercise with economic incentives that can yield tangible benefits and at the same time, address the root causes of the conflict. These fall into two categories, one directed at the warring factions’ need for livelihood and the other on reforming the trade in conflict commodities. 16  Onur Bakiner, “Truth Commission Impact: An Assessment of How Commissions Influence Politics and Society,” The International Journal of Transitional Justice 8, no. 1 (2014), 30. 17  Matiangai V.S. Sirleaf, “Beyond Truth & Punishment in Transitional Justice,” Virginia Journal of International Law 54 (2014), 223. 18  David Mendeloff, “Truth-Seeking, Truth-Telling and Post-conflict Peace-Building: Curb the Enthusiasm?” International Studies Review 6, no. 3 (2004), 356.

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The first category has been supported by international organisations though not necessarily in direct association with truth commissions. It links disarmament with support to small and medium enterprise and then connects this disarmament-cum-enterprise promotion with participation in the truth-telling exercise. The rationale is that this will make the selected formal transitional justice process more economically attractive to the leaders and the members of the warring factions. In a large number of instances, participation in hostilities is attractive because of the protection an army affords and, in particular, the income it provides. There is always something to gain: food, clothing, drugs and cash, but there is also the entrepreneurial possibility associated with carrying a gun, that is, looting. Looting can be the seizure of minerals, gems, rare animal parts, tropical hardwood, the contents of granaries, the contents of households, livestock and human trafficking. These assets are not easily relinquished. If relinquishing them becomes a condition of participation, then that would be a disincentive to participation in a peace effort. Participation in a transitional justice exercise can be linked to the relinquishing of a weapon but at the same time to the provision of a small grant or loan that would allow participants to replace the gain from a gun with an otherwise profitable activity. This closes a logical circle. Whatever state or non-state armed groups fight for, and this can be diverse, they are almost always fighting against low income. A very small proportion of those who participate in an insurgency for the long term in emerging or stagnating economies do so strictly for political reasons; they do so instead to hold off the constraints of surviving in resource-poor households. There have been large numbers of disarmament, demobilisation and reintegration programmes that have married disarmament with microcredit. But none, as far as this author is aware, have linked microcredit with disarmament and these two, in turn, with participation in a reconciliation exercise. It is important to realise that truth-telling, confessions or hearing a public apology—however, comforting they may be—are modest incentives at best. A more substantive and pragmatic incentive is the promise that participation allows the replacement of living by the gun with living from an investment in a small business. As long as escape from poverty remains one of the principal motivations for engaging in violence, a soldier will have every reason to continue. A soldier may well be inclined to stop, however, when a solution to household poverty is joined with the promise that the violence he/she inflicts and suffers is open for discussion and reconciliation.

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The causes of war cannot easily be reduced to a “root cause.” But it is possible to say something about what keeps them going once they have started, that is, what correlates statistically with the presence of an ongoing and persistent conflict. Paul Collier’s research finds only weak associations between political grievances and the presence of war, but it does confirm strong associations between war and the following three economic factors: (1) persistent low income, especially at the initial stages of war, (2) slow economic growth and (3) dependence on primary commodity exports. In sum, civil war is more likely to be found in a country where there is widespread poverty and where the prospects are slim for emerging from its constraints; and interestingly, it is also likely to be found in countries where income depends on valuable primary products, that is, commodities which, if accessed, could yield ample revenue for protagonists to engage in a lengthy conflict.19 The transitional justice literature has occasionally acknowledged these pre-eminent economic factors as causes of war’s persistence and potentially the more likely avenues for engineering war’s conclusion. One illustrative article proposes “that truth commissions expand their mandates to analyze violations of not only civil and political rights but also economic, social and cultural rights.”20 And yet, these academic assertions, nobly written, come with little practical guidance. Given Collier’s observations, the interventions with a chance to work are relatively straightforward: local infrastructure, food for work, social protection schemes and the like. Any of them might do. But when linking “ameliorating factors,” with transitional justice processes, the initiatives have to be simple, free of government oversight or interference and manageable locally. Microcredit is the obvious candidate, not only because it explicitly fills the economic gap created by giving up a gun but also because it is easily managed by the participants. Microcredit schemes have their detractors; there are concerns that microcredit schemes give away money that may never be paid back; or that they lure beneficiaries into even more serious debt. But experience shows advantages clearly outstrip the disadvantages. The small credit that participants receive gives those who go to 19  Paul Collier, The Bottom Billion, Why the Poorest Countries Are Failing and What Can Be Done About It (Oxford: Oxford University Press, 2007), 32. 20  Lisa J. Laplante, “Transitional Justice and Peace Building: Diagnosing and Addressing the Socioeconomic Roots of Violence Through a Human Rights Framework,” The International Journal of Transitional Justice 2, no. 3 (2008), 333.

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war, along with their families, a real alternative to plundering for a livelihood. They give those who may or may not participate in truth c­ ommissions an incentive other than the psychological appeasement of hearing and confessing. They link the exercise directly to the real reasons for aggression, something that, because it is hardly very respectable, may be difficult to acknowledge. And finally they give the exercise a real opportunity for durable peace-making. A second category is somewhat different. The aim here is to alter the trade in conflict commodities so that the trade provides real returns to the local economy rather than feeding conflict and crime. This involves managing supply chains for valuable commodities that in times of peace brings in income but in war can be used to maintain violence. Achieving this, even to a modest degree, introduces an ameliorating factor that contributes to the success of a formal transitional justice process. The number of trade regulation strategies that contribute to a clean supply chain is growing these days; they include such mechanisms as the Kimberley Process “chain of warranties” to keep the trade in diamonds from fuelling conflict. There are mineral certification systems that keep resource exploitation and the mineral trade from provoking conflict and human rights abuses; there are sanctions and United Nations support for conscripting the private sector in cleaning up cross-border trade. The idea of responsible supply chain management, while apparently diverse and complex, is really simple in its essence; it is to monitor supply chains of high-value commodities in order to keep harmful exploitation of resources and its human consequences to a minimum. When and where it works, it levels the playing field in conflict areas so that ethical producers with ethical principles can compete with criminalised ones. The Kimberley Process, for all its inadequacies, continues to function. The Rwandan government maintains a certification scheme, which purports to warrant that none of the minerals it exports have anything to do with conflict. The most effective certification scheme these days is the one next door in the Eastern Democratic Republic of the Congo organised by the International Tin Research Institute, which certifies that minerals coming out of volatile areas are conflict-free.21 There are others of smaller

21  Jim Freedman, “Tackling the Tin Wars in DR Congo,” Mineral Economics, 24, no. 1 (2011), 45–53.

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scale. The OECD’s Guidelines for Multinational Enterprises22 first drafted in 1976 and revised a half-dozen times is doing more than before to set standards for producers, processors and manufacturers dealing in commodities from volatile areas; it has been the first of many different operating standards for private sector actors operating in fragile and volatile areas, and its growing importance has led the OECD to develop the Due Diligence Guidelines for Responsible Mineral Supply Chains.23 In the process the OECD has assumed the responsibility for annually convening advocates, businesses, international organisations, consultants and donors to discuss ways of strengthening supply chain mechanisms for conflict commodities.24 These OECD efforts have been given a boost by a section in the United States’ Dodd–Frank legislation,25 passed under Obama’s administration requiring US companies to demonstrate that none of its commodities are being used to fuel conflict. There are, in addition, advocacy organisations such as Global Witness,26 which researches supply chains that provoke human abuse. And finally, there are United Nations sanctions on individuals, countries or regional organisations to enforce compliance with these soft law initiatives.27 This armada of advocates and mechanisms for managing supply chains in conflict areas has become a platform out of which an ethical international regulatory body for trade may someday emerge. This may take time. For the moment they are ideal companion initiatives for transitional justice processes. Even when fighters have exchanged arms for an opportunity to build a small enterprise, and when participants have laid bare their grievances, this has only a local reach. There are still international traders who  Guidelines for Multinational Enterprises, http://www.oecd.org/daf/inv/mne/ 48004323.pdf. 23  Due Diligence Guidelines for Responsible Mineral Supply Chains, http://www.oecd.org/ daf/inv/mne/OECD-Due-Diligence-Guidance-Minerals-Edition3.pdf. 24  The OECD hosts the Responsible Mineral Supply Chains Conference held in Paris yearly. 25  The Dodd–Frank Wall Street Reform and Consumer Protection Act, passed by the US Congress in July 2010, includes a provision—Section 1502—requiring US companies not to purchase minerals from rebel groups engaged in conflict in the Democratic Republic of the Congo. 26  See, for example, Global Witness. Blood Timber: How Europe Helped Fund War in the Central African Republic (London and Washington: Global Witness, July 2015). 27   David M.  Malone and Jake Sherman, “Economic Factors in Civil Wars: Policy Considerations,” in Cynthia J.  Arnson and I.  William Zartman, eds., Rethinking the Economics of War: The Intersection of Need, Creed, and Greed (Baltimore: The Johns Hopkins University Press, 2005). 22

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care very little about local efforts at demobilisation and peace-making; a truth commission’s alliance with supply chain management extends peace-­ making efforts beyond the local. If, as a matter of principle, participants are urged to deal only with reputable buyers, they will benefit in the long run; if they support, however modestly, a system that impedes marketing of conflict commodities, this will be in the interests of the international market to deal in conflict-free commodities. Some will claim this is not feasible. A responsible supply chain mechanism can do nothing with illegal drugs, for example. The same goes for gemstones that can easily be hidden. Furthermore certification regimes need an infrastructure of guidelines, inspections and enforcement and this is something that may be well beyond the scope of truth commissions. But it is worth considering because doing truth-telling and supply chain management in tandem strengthens both and when this is the case, it enhances the value of investing in them, and not only for international organisations but more importantly for private sector actors whose stake in this may be considerable. Investment in a process that supports transitional justice along with commodity certification will serve a corporation’s social responsibility obligations as well as its bottom line, a unique and potentially attractive combination.

Conclusion A decade ago, transitional justice researchers began expressing concern about the field’s neglect of economic matters. One author spoke of “the invisibility of the economic”28; another was concerned that as long as economic issues remain marginal to transitional justice deliberations, the likelihood of failing to keep conflict from returning was sure to be high.29 There was reason to be concerned. More than half of all conflicts emerge from conflicts that existed previously30 and there is good reason to believe this was because peace processes neglected the economic character of conflicts’ persistence. The door is now open for further consideration of the economic features of war and the obligation this now poses on truth 28  Zinaida Miller, “In Search of the Economic in Transitional Justice,” International Journal of Transitional Justice 2, no. 3 (2008), 272. 29  Laplante, “Transitional Justice and Peace Building,” 333. 30  Paul Collier. The Bottom Billion, Why the Poorest Countries Are Failing and What Can Be Done About It (Oxford: Oxford University Press, 2007), 34.

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commissions to recognise economic constraints to reconciliation and the value of removing them. One of the curious features of addressing the economic dilemmas of countries that fall into conflict is that high-sounding principles and ideas are easier to come by than things that work. This is a dilemma for policy development in struggling economies and fragile states generally. Good intentions and fashionable ideas are development practitioners’ stock in trade with the result that far more attention is given to what has institutional appeal at the time than what will accomplish a needed result. Poverty reduction provides an example. Proposed initiatives may range widely from macroeconomic reform to better training for government personnel, to school feeding programmes, to support for women’s market gardening groups and even to small-scale agriculture infrastructure. Each of these may be justified because it fits in with a given donor’s theoretical programme of poverty reduction. None of them, however, may be the optimal approach to poverty reduction. Development programming would benefit greatly from greater collaboration and discipline. There is similarly a need to sharpen transitional justice’s approach. This essay has sought to do this by suggesting how to make transitional justice processes more pertinent to addressing persistent aggression and, at the same time, how to link reconciliation efforts with activities that simultaneously address the drivers of aggression and move towards removing them.

Bibliography Bakiner, Onur. “Truth Commission Impact: An Assessment of How Commissions Influence Politics and Society.” The International Journal of Transitional Justice 8, no. 1 (2014): 6–30. Berdal, Mats and David Malone. Greed and Grievance: Economic Agendas in Civil Wars. Boulder, CO: Lynne Rienner, 2000. Collier, Paul. The Bottom Billion, Why the Poorest Countries Are Failing and What Can Be Done About It. Oxford: Oxford University Press, 2007. Collier, Paul and Anke Hoeffler. Greed and Grievance in Civil War. Washington: World Bank Policy Research Working Paper 2355, 2002. Collier, Paul. “Doing Well out of War: An Economic Perspective.” In Greed and Grievance: Economic Agendas in Civil Wars, edited by Mats Berdal and David Malone, 91–111, Boulder: Lynne Rienner Publishers, 2000. Final Report of the Truth and Reconciliation Commission. Kinshasa: Government of the Democratic Republic of Congo, February 2007.

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Freedman, Jim. “Tackling the Tin Wars in DR Congo.” Mineral Economics 24, no. 1 (2011): 45–53. Global Witness. Blood Timber: How Europe Helped Fund War in the Central African Republic. London and Washington: Global Witness, July 2015. Gonzalez, Eduardo. “Set to Fail? Assessing Tendencies in Truth Commissions Created After Violent Conflict.” Can Truth Commissions Strengthen Peace Processes? New  York: International Transitional Justice Centre and the Kofi Annan Foundation, June 2014. International Crisis Group. Sierra Leone’s Truth and Reconciliation Commission: A Fresh Start? Brussels: International Crisis Group, 20 December 2002. Kandeh, Jimmy D. “The Criminalization of the RUF Insurgency in Sierra Leone.” In Rethinking the Economics of War: The Intersection of Need, Creed and Greed, edited by Cynthia J.  Arnson and I.  W. Zartman. Baltimore: Johns Hopkins University Press, 2005. Laplante, Lisa J. “Transitional Justice and Peace Building: Diagnosing and Addressing the Socioeconomic Roots of Violence Through a Human Rights Framework.” The International Journal of Transitional Justice 2, no. 3 (2008): 331–355. Ngoma-Binda, D. and Maitre Nuabda Vuidi. “Justice Transitionelle en R.D. Congo: L’experience de la Commission Verité et Reconiliation,” Congo-­ Afrique 321 (2007). Malone, David M. and Jake Sherman. “Economic Factors in Civil Wars: Policy Considerations.” In Rethinking the Economics of War: The Intersection of Need, Creed, and Greed, edited by Cynthia J.  Arnson and I.  William Zartman. Baltimore: The Johns Hopkins University Press, 2005. Mendeloff, David. “Truth-Seeking, Truth-Telling and Post-conflict Peace-­ Building: Curb the Enthusiasm?” International Studies Review 6, no. 3 (2004): 355–380. Miller, Zinaida. “In Search of the Economic in Transitional Justice.” International Journal of Transitional Justice 2, no. 3 (2008): 266–291. Naughton, Elena. “Democratic Republic of the Congo: Case Study.” Can Truth Commissions Strengthen Peace Processes? New  York: International Centre for Transitional Justice and the Kofi Annan Foundation, June 2014a. Naughton, Elena. “Sierra Leone: Case Study.” Can Truth Commissions Strengthen Processes? New York: Kofi Annan Foundation and the International Centre for Transitional Justice, June 2014b. Organisation for Economic Co-operation and Development. Guidelines for Multinational Enterprises. Organisation for Economic Co-operation and Development. Due Diligence Guidelines for Responsible Mineral Supply Chains. http://www.oecd.org/ daf/inv/mne/OECD-Due-Diligence-Guidance-Minerals-Edition3.pdf.

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Prunier, Gerard. Africa’s World War, Congo, the Rwandan Genocide and the Making of a Continental Catastrophe. Oxford: Oxford University Press, 2009. Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of Congo. New York: United Nations Security Council S/2002/1146, 16 October 2002. Report of the National Commission for Unity and Reconciliation. Freetown: Government Printers, 1996. Shaw, Rosalind. “Memory Frictions: Localizing the Truth and Reconciliation in Sierra Leone.” The International Journal of Transitional Justice 1, no. 2 (2007): 183–207. Sirleaf, Matiangai V.S. “Beyond Truth & Punishment in Transitional Justice.” Virginia Journal of International Law 54, no. 2 (Spring 2014): 223–294.

CHAPTER 7

“Some Reasons Are Obvious, Some Are Not.” The Gambian Experience with Transitional Justice Mark Kersten

Not all transitional contexts are born equal. They share unique characteristics that determine their nature, duration, and resilience. It is commonplace to hear scholars issue the reminder that we need to be “context-sensitive”, and therefore, appreciate the specific conditions underlying a transition as well as how these particularities intersect with efforts to achieve transitional justice. As some contexts are in a “better” place to achieve a sustainable transition from violence and/or autocracy, so too are some contexts more amenable to a programme of transitional justice than others. While they rarely receive as much attention due to the sense of urgency surrounding the need to pursue transitional justice

M. Kersten (*) Wayamo Foundation, Berlin, Germany University of Toronto, Toronto, ON, Canada © The Author(s) 2020 S. El-Masri et al. (eds.), Transitional Justice in Comparative Perspective, Memory Politics and Transitional Justice, https://doi.org/10.1007/978-3-030-34917-2_7

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whenever the opportunity arises (and often as soon as possible), some contexts may experience “ripe moments” for transitional justice.1 The focus of this chapter is on the underlying conditions and ameliorating factors that influence transitional justice efforts in a rather unheralded and under-explored case: The Gambia. It offers an analysis of issues which underpin the country’s transition from the autocratic rule of former President Yahya Jammeh towards democratic governance, and which have shaped the course of transitional justice that The Gambia has pursued. This paper examines a number of ameliorating factors as well as ongoing issues and challenges facing The Gambia, in order to help explain why the country has chosen the particular path of transitional justice that it has. The chapter proceeds as follows: the next section provides an overview of the events that led to the demise of the Jammeh regime. It is followed by an exploration of the context and a number of ameliorating factors in The Gambia which have determined the approach to transitional justice taken by the country. The new Gambian government has focused on sequencing justice mechanisms, as explained in the third section of this chapter. To date, the country has implemented two primary justice and accountability mechanisms: a commission to identify Jammeh’s assets for potential repatriation and a truth commission, the Truth, Reconciliation and Reparations Commission (TRRC). Each is described and examined in detail. The chapter concludes with some remarks on the challenging road ahead and the prospects for continued justice and accountability efforts in the country.

Background: When Jammeh Lost His Marbles2 Had it not been for the tidal wave of scrutiny and interest that met the election of Donald Trump, perhaps events in The Gambia between late 2016 and early 2017 would have captured a much larger section of the global public’s imagination. The events were, in one word, remarkable. In the span of a few months, an autocrat who had ruled for twenty-two years was defeated in polls, accepted the result, reneged, and then went into exile following  For an analysis of “ripe moments,” see, for example, I. William Zartman, “Ripeness: The Hurting Stalemate and Beyond,” in International Conflict Management after the Cold War, eds. Paul C. Stern and Daniel Druckman, (US: National Academy Press, 2000), 225–250. 2  For a brief explanation on The Gambia’s use of a marble-based voting system, see “Voting with marbles in The Gambia,” BBC, November 30, 2016, https://www.bbc.com/news/ av/world-africa-38164870/gambia-election-voters-use-marbles-to-choose-president; see also Peter Fabricius, “Jammeh loses his marbles,” Institute for Security Studies, December 7, 2016, https://issafrica.org/iss-today/jammeh-loses-his-marbles. 1

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concerted regional action and negotiated a peaceful transfer of power to a man who had virtually no political experience and had, at one point, been a security guard in a British department store. This ­section provides an overview of this remarkable turn of events and The Gambia’s transition. Yahya Jammeh came to power in 1994, at the age of thirty, following a bloodless coup. While his rule was initially thought to be temporary, he nevertheless remained in power and consolidated control over the country over the succeeding two decades. His time as Gambian President was defined by autocratic governance, large-scale corruption that left institutions rubber-stamping his decisions and bankrolling his lavish lifestyle, regular suppression of political opposition through the use of arbitrary arrest, torture, and enforced disappearances as well as periodic atrocities, including the 2000 killing of fourteen students and the murder of forty-­ four Ghanaian migrants. Jammeh was also widely perceived as being dangerously eccentric, having declared in 2007 that he had a “cure for AIDS” and subsequently forcing the patients to take his ineffectual “cure.” His antics resulted in the deaths of many patients who might otherwise have received appropriate treatment for the virus.3 The worst excesses of his rule were perpetrated by a specialised unit controlled by Jammeh and known as the “Junglers,” who were responsible, among other alleged crimes, for the killing and disappearance of migrants and political opposition figures. Their arrest, torture, murder, and disappearance of one activist, Solo Sandeng, galvanised opposition to Jammeh’s rule and precipitated the Gambian despot’s subsequent defeat in the 2016 presidential elections.4 Political change in the country came quickly and unexpectedly. On 1 December 2016, Gambians voted in the country’s presidential elections. Jammeh was opposed by Adama Barrow, a candidate who had been chosen by a coalition of seven opposition parties, and Mama Kandeh, a long-­ standing opposition figure in The Gambia. Barrow was a political novice, never having held office in The Gambia. He had spent time in the United Kingdom as a security guard at Argos, a British department store, before 3  See Rukmini Callimachi, “‘I can cure Aids, and I will’,” The Guardian, February 21, 2007, https://www.theguardian.com/world/2007/feb/21/aids; A civil suit has now been launched by survivors of the programme against Jammeh. See also Saikou Jammeh and Ruth Maclean, “Survivors of Yahya Jammeh’s bogus Aids cure sue former Gambian leader,” The Guardian, June 1, 2018, https://www.theguardian.com/global-development/2018/ jun/01/survivors-yahya-jammehs-bogus-aids-cure-sue-former-gambian-leader. 4  Ibid.; see also AFP, “Gambia makes more arrests over death of activist Solo Sandeng in 2016,” AfricaNews, March 27, 2018, https://www.africanews.com/2018/03/27/ another-gambian-senior-intelligence-official-arrested-in-connection-with-an//.

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returning to The Gambia to run a real estate business.5 There remains some debate as to why he was chosen as the opposition coalition candidate. Some believe that it was because he was the only person acceptable to all seven opposition parties in the coalition. A more macabre rumour heard by this author is that, if the Jammeh regime clamped down on the opposition with repressive or violent measures, it was more acceptable to the coalition leaders for Barrow to “take the fall.”6 If there is any truth to this rumour, they could not have been more mistaken. In a shocking result, Barrow won 43.3% of the vote to Jammeh’s 39.6%. In an even more astounding development, Jammeh accepted defeat and congratulated Barrow on his victory, saying that he would retire to a farm in his hometown of Kanilai, where he would “eat what I grow and grow what I eat.”7 The unlikelihood of Jammeh’s decision is hard to overstate. In 2011, Jammeh had infamously declared that he would rule for “one billion years” if “Allah willed it.”8 Reports published just days before the election had suggested that diplomats, African and Western alike, saw the country “in freefall.”9 The head of The Gambia’s electoral commission, Alieu Momar Njie, declared that “[i]t’s really unique that someone who has been ruling this country for so long has accepted defeat.”10 While Gambians rushed to the streets to celebrate the end of Jammeh’s rule and the impending transition, just days after accepting his defeat, Jammeh reversed course and rejected the election results, citing “abnormalities.”11 In response, many youths took to the streets, their t-shirts and Twitter accounts exclaiming “#GambiaHasDecided” in a nod to the impact of social media on the election and on spreading awareness of the unprecedented situation facing the country.  See “Gambia’s Jammeh loses to Adama Barrow in shock election result,” BBC, December 2, 2016, https://www.bbc.com/news/world-africa-38183906. 6  Consultation in The Gambia conducted as part of a consultation mission in 2017 with the Wayamo Foundation and the Africa Group for Justice and Accountability. 7  See Ruth Maclean, “The Gambia’s new rulers vow to prosecute outgoing president,” The Guardian, December 7, 2016 https://www.theguardian.com/world/2016/dec/07/ the-gambias-new-rulers-vow-to-prosecute-outgoing-president. 8  See “Gambia’s Yahya Jammeh ready for ‘billion-year’ rule,” BBC, December 12, 2011, https://www.bbc.com/news/world-africa-16148458. 9  See “The Crack in Gambia’s Smile,” BBC, October 21, 2016, https://www.bbc.com/ news/world-africa-37716674. 10  Gambia’s Jammeh loses to Adama Barrow in shock election result,” BBC, 2 December 2016, https://www.bbc.com/news/world-africa-38183906. 11  “Gambia leader Yahya Jammeh rejects election result,” BBC, December 10, 2016, https://www.bbc.com/news/world-africa-38271480. 5

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Jammeh’s about-face came days after Fatoumata Jallow-Tambajang, an opposition figure loyal to Barrow and who later become his Vice President, declared that Jammeh could not leave the country and had to be prosecuted for crimes committed during his regime: He can’t leave. If he leaves, he’s going to escape us. We are stopping him from leaving. We are negotiating. He said he wants to go to Kanilai. Any day he tells us he wants to go abroad, then we say no. It’s the presidential prerogative … He will be prosecuted. I’m saying a year but it could be less than that. This is my personal opinion—it might have taken three months because we really want to really work fast. We don’t trust him. The longer we leave him, the more possibilities he has to leave the country, to escape from the country and to even do an insurgency. He is capable.12

Many suggested that Jammeh’s volte-face and refusal to retire was therefore a result of his fear of being prosecuted.13 Insisting that a new election had to be called, Jammeh sent troops loyal to him to surround the elections commission, had the Gambian parliament vote to extend his term by three months, and requested the intervention of the Supreme Court, which was, in turn, incapable of hearing Jammeh’s case because he had fired the majority of its judges without replacing them. In response to the turmoil in the country, West African leaders, including Nigerian President Muhammadu Buhari, Liberian President Ellen Johnson Sirleaf, Sierra Leone President Ernest Bai Koroma, and Ghanaian President John Mahama, travelled to The Gambia in an attempt to negotiate his transition from power.14 Barrow, meanwhile, fled to Senegal, which borders The Gambia on three sides (all except for its western access to the Atlantic Ocean), where he was inaugurated as the internationally recognised President of The Gambia on 19 January 2017, in the Gambian embassy in Dakar. As his inauguration was underway, military forces under ECOWAS authority, drawn from West African states including Senegal and Nigeria, amassed on the Gambian border, threatening to enforce the transfer of power in the country while simultaneously seeking the UN  Maclean, “The Gambia’s new rulers vow to prosecute outgoing president.”  Ibid. 14  Colin Freeman, “West African leaders arrive in Gambia to convince Yahya Jammeh to step down, as soldiers ‘take over election building’,” Telegraph, December 13, 2016, https://www.telegraph.co.uk/news/2016/12/13/west-african-leaders-arrive-gambiaconvince-yahya-jammeh-step/. 12 13

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Security Council approval for any military intervention. Senegalese troops did eventually enter the country. A reported 45,000 Gambians fled, ­fearing an outbreak of violence.15 Notably, the Gambian army refused to become involved, with its Chief of Staff declaring, “This is a political dispute. I am not going to involve my soldiers in a stupid fight. I love my men!”16 Facing pressure from numerous directions, Jammeh finally decided to step down and accepted an offer of exile from the government of Equatorial Guinea. On the night of 22 January 2017, Jammeh arrived at Banjul International Airport. Reports that Jammeh had used the previous weeks to withdraw money from The Gambia’s Central Bank,17 as well as suggestions by some Western diplomats that he had, in fact, been preparing to retire at least one year before the 2016 elections, suggest that Jammeh’s recalcitrance to leave power had more to do with consolidating his considerable wealth than fear of prosecution.18 As he arrived at the airport, his cargo plane, and at least one other, was packed with luxury cars, other valuables, and a reported $11 million from state coffers. Dressed, as he so often was, in immaculate white robes, and with a brief wave from the aeroplane doors to a scattering of supporters on the tarmac, Jammeh departed the country. Such was the weight of his plane, perhaps due to the amount of gold on board, that it struggled to take off. But, accompanied by Equatorial Guinea President Teodoro Obiang Nguema Mbasogo, Jammeh departed the country he had ruled over for the past two decades. Jammeh continues to reside in Equatorial Guinea, where he has been given a plot of land to farm by Obiang. Photos have circulated of Jammeh and Obiang overlooking rows of cabbages in Obiang’s hometown of Mongomo. Despite opposition protestations in the country and declarations that “We already have one dictator as a president. We don’t need another!” along with calls for Jammeh to be prosecuted for the alleged 15  Dionne Searcey and Jaime Yaya Barry, “Yahya Jammeh Agrees to Step Down, as 45,000 Flee Amid Gambia Standoff,” New York Times, January 20, 2017, https://www.nytimes. com/2017/01/20/world/africa/gambia-jammeh-president-barrow.html?module=inline. 16  “Gambia crisis: Barrow sworn in in Senegal as Jammeh stays put,” BBC, January 19, 2017, https://www.bbc.com/news/world-africa-38675741. 17  Dionne Searcey and Jaime Yaya Barry, “As Gambia’s Yahya Jammeh Entered Exile, Plane Stuffed With Riches Followed,” New York Times, January 23, 2017, https://www.nytimes. com/2017/01/23/world/africa/yahya-jammeh-gambia-exile.html. 18  Senior Western diplomat, consultation by author, 1 November 2017, Banjul, The Gambia.

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crimes he committed as President of The Gambia, there is no indication that his situation is precarious. Obiang has stated that he will continue to protect Jammeh, and the two were seen singing and dancing at a New Year’s celebration in 2018.19 Given the above, it may not be immediately clear that The Gambia represents fertile ground for transitional justice efforts. Almost immediately, however, the incoming government devoted itself to designing accountability mechanisms appropriate to the country’s transition. These efforts reflect the particular ameliorating factors and conditions that characterise the post-Jammeh Gambia.

Conditions for Justice in the Gambia In some respects, The Gambia represents a particularly fruitful context in which to implement transitional justice. But it also shares some common features of the transitional contexts, which could complicate efforts intended to implement the transitional justice measures. This section considers a number of key factors that lend themselves to the implementation of effective transitional justice and a number of issues that may complicate such efforts. Together, they help explain why the country has taken the path of justice and accountability that it has. A ‘Clean’ Transition Once Jammeh left for Equatorial Guinea, The Gambia’s transition from his autocratic rule to democratic governance under the presidency of Adama Barrow was both peaceful and relatively clear-cut. In light of the length of time Jammeh was in power, his wealth, his willingness to use oppressive and violent measures against opposition forces, and his apparent reluctance to surrender power, this outcome was far from guaranteed. However, despite prevalent fears, there was no significant loss of life or violence from the moment that Jammeh lost the presidential election to the time that he left for exile. The transition was demanded in the streets of the country and negotiated peacefully through the mediation of regional leaders in the region. While military force was threatened by neighbouring 19  “Jammeh, Nguema dance as Olomide sings at Equatorial Guinea bash,” AfricaNews, January 3, 2019, https://www.africanews.com/2019/01/03/jammeh-nguema-dance-asolomide-sings-at-equatorial-guinea-bash/.

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states and some troops did enter the country, wholesale use of force was not ultimately required and the military refused to attack civilians agitating against Jammeh. At the same time, while the country experienced a series of atrocities during Jammeh’s rule, as well as human rights violations and political repression, the level of violence in the country was less than in many transitional contexts. As Colin Freeman put it, “Jammeh is seen as a relatively minor thug by global standards.”20 The Gambia under Jammeh was generally known to be safe, with a healthy tourist industry and a regime that was unwilling to tolerate violent behaviour or criminality. The country has never experienced a civil war or similar large-scale violence. Accordingly, the criminality and repression that will have to be adjudicated by transitional justice mechanisms will arguably be more “manageable” than in other places. The “Right” People in Place It is not uncommon for transitional states to have powerful figureheads or charismatic leaders who are central to the pursuit of post-conflict/post-­ authoritarian transitional and criminal justice. Rwanda’s Paul Kagame and South Africa’s Nelson Mandela, for example, fit into these categories; each state’s experience with transitional justice is synonymous with its leadership. While Gambian President Barrow does not enjoy the same authority or charisma, he has positioned long-standing advocates of justice and accountability in key and senior positions in the government and judiciary. This policy is exemplified by the presence of Gambian Chief Justice Hassan Bubacar Jallow, former Chief Prosecutor of the International Tribunal for Rwanda (ICTR), and Justice Minister Abubacarr Tambadou, Jallow’s former special assistant at the ICTR. It is worthwhile noting here that it is fairly rare for employees of United Nations organisations, such as the ICTR, to “return.” Levels of remuneration and other benefits available at the “international” level often disincentivise a return to the domestic level (and lead to “brain drain” in the first instance). Notably, while Jallow and Tambadou’s background and expertise are in international criminal law, The Gambia has embraced a broader transitional justice platform. 20  Colin Freeman, “Good Life in a Palace in Equatorial Guinea,” Foreign Policy, April 3, 2017, https://foreignpolicy.com/2017/04/03/gambias-ousted-dictator-is-living-the-goodlife-in-a-palace-in-equatorial-guinea/.

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Commitment to and Appetite for Justice This brings us to a condition: the country has both an appetite for justice, as demonstrated by the public response to the convocation of a truth commission in the country, pressure from civil society to achieve criminal accountability as well as reconciliation, and a government that has publicly invested in accountability measures. The government has committed itself to transitional justice efforts as a priority. This was made clear by the central importance it paid to reversing Jammeh’s decision to withdraw the country from the International Criminal Court, something it did following Barrow’s ascension to power. Moreover, according to the country’s National Development Plan (2018–2021), “Restoring good governance, rebuilding, and restoring public confidence in key institutions, upholding human rights and strengthening access to justice, in the context of transitional justice are urgent priorities.”21 Additionally, within the first year of assuming office, President Barrow released at least 296 prisoners, including two individuals who would subsequently become the country’s Finance and Foreign Affairs Ministers.22 Victims Beyond the Gambia Atrocities allegedly committed under Jammeh were not limited to those perpetrated against Gambians. In 2005, members of Jammeh National Intelligence Agency, or “Junglers,” detained fifty-six migrants, largely from Ghana, who had become stranded on the coast. As Reed Brody describes it, “The worst massacre under Yahya Jammeh was actually a massacre of foreigners. Fifty-six West Africans, including 44 Ghanaians who were trying to get to Europe, were mistaken for mercenaries, were arrested and were all killed, except for one.” That lone survivor was Martin Kyere, a shoe vendor who has worked with human rights organisations (including Human Rights Watch and Trial International) to spread information of his story and the need for accountability since the end of Jammeh’s rule. Specifically, they have been 21  See “National Development Plan (2018-2021),” The Gambia Times, available at: http://www.thegambiatimes.com/wp-content/uploads/2018/02/1.-The-GambiaNational-Development-Plan-2018-2021-Full-Version.pdf. 22  United States Department of State, “The Gambia 2017 Human Rights Report,” U.S.  Department of State, 2017, https://www.state.gov/documents/organization/277247.pdf.

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putting pressure on the Government of Ghana to support the prosecution of Jammeh for crimes committed against Ghanaian citizens. Accra has been receptive to the cause.23 This has led to agitation to bring Jammeh to justice, potentially outside The Gambia, in Ghana or somewhere else in the region. Given Jammeh’s continued influence on the country, some have even suggested that Ghana would be a more “ideal” location for his trial.24 Groups such as Human Rights Watch have led a concerted campaign to investigate the murders, while Kyere’s story has achieved global attention.25 As a result, the campaign to bring Jammeh to justice has taken on an international flavour, in a way seldom seen in many transitional states. It has fostered solidarity between Ghanaian and Gambian civil society and put pressure on the governments of both states to investigate and prosecute Jammeh’s alleged crimes. This is crucial, as observers have stressed that Obiang is unlikely to extradite Jammeh to face trial (in The Gambia or elsewhere) without regional support for such an outcome.26 A Convenient “Bad Guy” As explored below, the Gambian judiciary does not currently have the expertise or capacity to put senior perpetrators like Jammeh or Ousman Sonko (the former interior minister currently in detention in Switzerland on charges of crimes against humanity) on trial. There are also some concerns about the effects that such a trial might have on the country’s stability, particularly among sections of the population still loyal to Jammeh.27 Even so, the Gambian officials have kept up the pretence that they remain interested in bringing Jammeh-era perpetrators to account. Barrow has stated that he is “more than willing” to discuss Jammeh’s return 23   Ghana Web, “Ghana Government Studying Yahya Jammeh’s Case—Information Ministry,” May 28 2018, https://www.ghanaweb.com/GhanaHomePage/NewsArchive/ Ghana-government-studying-Yahya-Jammeh-s-case-Information-Ministry-655375. 24  Ghana Web, “Call made for Jammeh’s extradition and trial,” May 22, 2019, https:// www.ghanaweb.com/GhanaHomePage/NewsArchive/Call-made-for-Jammeh-sextradition-and-trial-748469. 25  See, for example, BBC, “Ghanaian shoe seller vows to bring Yahya Jammeh to justice,” 18 May 18, 2018, https://www.bbc.com/news/world-africa-44122843; Human Rights Watch, “Gambia: Ex-President Tied to 2005 Murders of Ghanaian and Nigerian Migrants,” https://www.hrw.org/news/2018/05/16/gambia-ex-president-tied-2005-murdersghanaian-and-nigerian-migrants. 26  See Freeman, “Good Life in a Palace in Equatorial Guinea.” 27  See comments by Alex Vines in Freeman, “Good Life in a Palace in Equatorial Guinea.”

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“because as a country we believe in justice and rule of law.”28 Obiang, however, has stated that he will not extradite Jammeh to The Gambia: I believe that the stance of protecting former heads of state is a correct one. I hail [President of Guinea and African Union President] Alpha Condé who told me he will not accept any demand for Yahya Jammeh’s extradition. Even I will not accept it. We are in full agreement that Yahya Jammeh must be protected. He must be respected as a former African leader. Because this is a guarantee for other African leaders that they will not be harassed after they leave power.29

This is not an inconvenient arrangement for The Gambia. It permits the country to continue pressing for justice and accountability, even when it is not possible for the government to deliver it. If someone must be blamed, it can be Obiang, who is seen as sheltering Jammeh from justice, or perhaps ECOWAS or the African Union. Recordings of Jammeh speaking with collaborators regarding a potential political return to the Gambia from Equatorial Guinea, as well as widely circulated footage posted in early 2019 depicting the two leaders dancing at a New Year’s Eve party, lend further credence to the idea that it is Obiang’s indifference to justice and his obstinacy in the face of Gambia’s democracy transition—and not the country’s level of capacity or preparedness—that stymie efforts to hold Jammeh to account. Finally, it should be noted that, should The Gambia build the capacity required to prosecute Jammeh, then Obiang’s position may turn into a challenge rather than an ameliorating factor for the country’s transition.

Challenges and Conditions Judicial (In)Capacity Following twenty-two years of Jammeh rule, the lack of institutional capacity and trust in public institutions in The Gambia is unsurprising. In particular, the country’s judicial system lacks the capacity or resources to

28  Ruth Maclean, “Equatorial Guinea says it will protect former Gambian leader,” The Guardian, January 27, 2018, https://www.theguardian.com/world/2018/jan/27/ equatorial-guinea-says-it-will-protect-yahya-jammeh-former-gambian-leader. 29  Ibid.

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conduct complex criminal justice proceedings pertaining to international crimes. As one Gambian put it in an open letter to the Justice Minister: I know resources are limited and you have a lot on your plate from the investigations of the economic crimes and the human right abuses of the previous regime under Yahya Jammeh. Adding salt to injury, the ministry has been operating under a 22-year dictatorship, where the ineptness and lack of qualified prosecutors are evident all over the place.30

As of late 2017, the average age of staff in the Ministry of Justice was twenty-four.31 Young Gambian lawyers, it would appear, saw little prospect in advancing their careers in the public sector. According to senior staff in the Ministry, this was due to young legal officers and lawyers viewing the judiciary as little more than a “rubber stamp” for the Jammeh family.32 Under such conditions, staff often viewed opportunities in the private sector as more favourable than those in the public sector. Capacity-related concerns are also prevalent in other law enforcement services, including the police, which has the primary responsibility to investigate allegations of crimes committed in the country but which was neglected in favour of the NIA under Jammeh. The country has no forensic expertise to investigate crimes (though Justice Rapid Response has provided its assistance in a number of cases).33 This is particularly problematic, given that many of the crimes—especially enforced disappearances—will require such expertise. Following the transition, authorities failed to secure evidence in a police-station detention cell that had doubled as a torture chamber. Police potentially implicated in crimes managed to paint over the walls before evidence could be preserved. In addition, the records of Jammeh’s National Intelligence Agency have yet to be secured, raising

30  See Makam Sowe, “GAMBIA: An Open Letter To The Attorney General And Ministry Of Justice,” Freedom Newspaper, April 13, 2019, https://www.freedomnewspaper. c o m / 2 0 1 9 / 0 4 / 1 3 / g a m b i a - a n - o p e n - l e t t e r- t o - t h e - a t t o r n e y - g e n e r a l - a n d ministry-of-justice/. 31  See Mark Kersten, “Mission Report of the AGJA-Wayamo Delegation to The Gambia, Meeting Expectations on the Road to Justice: Achieving Accountability in The Gambia,” Wayamo Foundation, May 2018, https://www.wayamo.com/wp-content/ uploads/2018/05/2018-TheGambia-Report-Wayamo.pdf. 32  Ibid. 33  Justice Rapid Response, “From Fear to Freedom: The Search for Justice in The Gambia,” November 1, 2018, http://www.justicerapidresponse.org/from-fear-to-freedom-gambia/.

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concerns that evidence will be destroyed or tampered with.34 This also points to another issue: the continuing freedom of police officers, members of the security forces, and officials who were responsible for crimes under the Jammeh regime. Their presence is compounded by the fact that the country may not have the resources to detain, investigate, and prosecute them in accordance to the rule of law and due process rights. Still, and understandably, a group of civil society organisations and Jammeh-era victims demand that “the Government suspend alleged perpetrators within the security forces identified by victims as having taken part [in] torture,” and “put in place a small unit, of capable and vetted police officers, to start objective and independent investigations.”35 At the same time, there are concerns that the ongoing trial of the so-­ called NIA 9 (after the National Intelligence Agency of which they formed part) for the torture, disappearance, and murder of opposition activist Solo Sandeng, might be undermined by inexperienced judicial officers and hasty measures, including the initial rush to detain them, possibly prior to sufficient evidence being collected and arrest warrants being issued (not an uncommon phenomenon in The Gambia).36 As of writing, the trial continues but has experienced numerous setbacks, including unprepared and even absent state counsel at some hearings.37 Notably, Jammeh is not the only senior figure from the former regime outside the country. Following his arrest in January 2017 in Switzerland, former Interior Minister Ousman Sonko was subsequently charged with crimes against humanity. There was some discussion that he might be prosecuted in The Gambia. However, the country did not challenge the case, nor has it requested that Sonko be extradited, indicating a degree of appreciation and understanding within the Justice Ministry of its own capacity-related limitations. 34  “Press Release from The Gambia Center for Victims of Human Rights Violations, GANEKED and The Solo Sandeng Foundation,” The Point, December 3, 2018, www.thepoint.gm/africa/gambia/article/press-release-of-aneked. 35  Ibid. 36  This point was made by numerous diplomats and senior political officials during consultations in The Gambia conducted by the author and Africa Group for Justice and Accountability colleagues. Consultation with diplomats and senior political officials by author, and Africa Group for Justice and Accountability, Banjul, The Gambia, 1–3 November 2017. 37  See, for example, Yankuba Jallow, “Trial of NIA 8 Suffers Setback,” Foroyaa, April 25, 2018, http://foroyaa.gm/trial-of-nia-8-suffers-setback/.

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Access to justice in communities is also low, and there has been a recognition that more needs to be done in order to boost access to justice and law enforcement beyond the region immediately surrounding the capital, Banjul. The Inspector General of the Police is dedicated to the task of vastly increasing the number of police stations in the rural Gambia. In addition, and as one report highlights, “[t]he government intends to establish more courthouses and ensure that judges and magistrates can work full time in rural areas, where justice is often difficult to administer and access.”38 Such capacity-building measures will take time, and it will take even longer to foster trust in public institutions among Gambians. However, enhancing and entrenching capacity—for the investigation and prosecution of domestic as well as international crimes—will be essential to determine the course of transitional justice efforts in The Gambia. In short, The Gambia shares with many other transitional contexts a weak judiciary and institutions that need bolstering and strengthening through training and education, employing capable staff willing to devote their career to the public service, and training investigators, prosecutors, and judges in the adjudication of human rights and international crimes cases. Before this has been achieved, it is difficult to imagine that the country will be able to adjudicate complex cases related to international crimes successfully and fairly. Intersection with Other Priorities According to President Barrow, his government “inherited an extremely challenging legacy manifested in a broken economy, gross abuse and plunder of our meager state resources, social regression, poor and dilapidated infrastructure, and wide-ranging societal challenges, among the most urgent of which is the frustrations and lack of opportunities for our young people.”39 As a result of corruption, the misappropriation of state funds and assets to enrich Jammeh as well as the economic situation confronting the country, The Gambia faces a number of development-related challenges. The country post-Jammeh has experienced an energy crisis, with energy provisions and black-out levels at times worse than they were under

38  Lesley Connolly, “Sustaining Peace in the ‘New Gambia’,” Accord, 2018, available at https://www.accord.org.za/conflict-trends/sustaining-peace-in-the-new-gambia/. 39  See The Gambia, “National Development Plan (2018–2021)”.

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Jammeh.40 The country also struggles with significant levels of general and youth unemployment and high levels of poverty, particularly in rural areas.41 For this reason, during the Jammeh era, many Gambians migrated. According to the International Organization for Migration, despite the country’s relatively small population of 2 million people, “the pursuit for socioeconomic advancement—especially among the youth—has driven many to undertake irregular migration with the aim of reaching Europe. Over 8498 Gambians arrived in Europe in 2017.”42 Although thousands have now voluntarily returned, and the government has sought to provide them with reintegration assistance, many Gambians continue to migrate, perhaps illustrative of a lack of trust that new socioeconomic opportunities will arise as a consequence of the new government coming to power.43 These development challenges are important, not only in the context of post-authoritarian development but also for transitional justice efforts, precisely because they are, at least in part, tied to the greed of Jammeh and his regime. As Ayenat Marsie has observed, “in a country whose poverty was deepened by Jammeh’s avarice, who hasn’t suffered financial loss by his hand?”44 Against this backdrop, it is evident that transitional justice must compete against other everyday needs and prerogatives. The Ministry of Justice has had to take a firm stance and strongly advocate that justice and accountability measures should be prioritised. It is evident that such ­measures are popular with a significant subset of the population, but proponents 40  See APA News, “Gambia: New target set to tackle intractable energy crisis,” October 24 2017, http://apanews.net/en/pays/gambie/news/gambia-new-target-to-end-protractedenergy-crisis. 41  See, for example, World Bank, “The Gambia: An Assessment of Poverty,” accessed April 25, 2019, http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPOVERTY/ EXTPA/0,,contentMDK:20204377~menuPK:435735~pagePK:148956~piPK:216618~th eSitePK:430367~isCURL:Y~isCURL:Y~isCURL:Y~isCURL:Y~isCURL:Y,00.html. 42  See: “The Gambia,” International Organization for Migration, accessed April 1, 2019, https://www.iom.int/countries/gambia. 43  International Organization for Migration, “Over 3,500 Returned Migrants; 2,000 Receive Reintegration Assistance in The Gambia,” February 15, 2019, https://reliefweb. int/repor t/gambia/over-3500-returned-migrants-2000-receive-reintegrationassistance-gambia. 44  Ayenat Mersie, “Truth First, Reconciliation Later,” Foreign Policy, January 11, 2019, https://foreignpolicy.com/2019/01/11/truth-first-reconciliation-later-gambia-jammehtrrc-truth-reconciliation-transitional-justice/.

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of transitional justice should not assume that Gambians are more interested in hearing the testimony of past wrongdoings than being able to preserve and refrigerate their food, power their homes, or find meaningful employment. As with many transitional contexts, justice and accountability efforts need to be negotiated against calls to focus on other development and socioeconomic priorities. These challenges as well as the ameliorating factors observed above, do not represent an exhaustive survey of the conditions underpinning and influencing transitional justice efforts in The Gambia. Taken together, however, they have led The Gambia to embrace a sequencing approach to post-Jammeh justice, focusing on means to repatriate Jammeh’s assets and establish a factual narrative of his time in power and the abuses committed by his regime.

Sequencing Justice and Accountability The Gambia has opted for a sequential approach to justice and accountability. This reflects and is a logical consequence of, the conditions examined above. Typically, sequencing is understood to pertain to the dual goals of pursuing peace and criminal justice. Sequencing emanates from the view that, while “peace and justice” cannot be pursued simultaneously, as doing so would risk undermining both, neither can it be accepted— morally or politically—that peace should entirely trump justice and be built upon impunity for international crimes or human rights violations.45 The answer, for those who espouse this argument, is that peace (typically defined as stability or order) must therefore come first, and justice may then follow, in a sequential approach that fosters both aims.46 Insofar as there have been some concerns about potential violence emanating from communities that benefited from Jammeh’s patronage as well as the status of the country’s security sector, this sequencing argument could be seen as underpinning The Gambia’s approach to transitional justice. At the same time, a focus on a sequentialist approach was likely ­bolstered by events preceding Jammeh’s departure to Equatorial Guinea. 45  See, for example, Moses Okello, “The False Polarisation of Peace and Justice in Uganda,” Expert Paper Workshop 2—Justice in Situations of Ongoing Conflict, International Center for Transitional Justice (2007). 46  See Jack Snyder and Leslie Vinjamuri, “Trials and Errors—Principle and Pragmatism in Strategies of International Justice,” International Security 28 no. 3 (Winter 2003/04), 5–44.

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Specifically, and as described above, in the midst of sensitive negotiations regarding the country’s transition and Barrow’s accession to the presidency, senior opposition figure and Barrow ally, Jallow-Tambajang, publicly exclaimed that Jammeh should be prosecuted for his crimes in The Gambia. Whether or not this declaration did in fact influence Jammeh’s (temporary) decision to dig his heels in and stay in power, it was widely believed to have done so, and so likely affected views on the wisdom of rushing to prosecute him. It is far more plausible, however, that the country is sequencing its approach to justice and accountability because it has little choice in the matter: it does not have the capacity to achieve all forms of justice at once. It has thus prioritised the work of a commission looking into Jammeh’s assets as well as that of the TRRC over prosecutions of senior perpetrators from the regime. Many say that these processes must feed into subsequent prosecutions, viewing the TRRC as a means, not just to “buy time” for the country, but as a “first step,” and a means to gather evidence and build cases for trials down the road.47 Rather than sequencing peace and justice, The Gambia can therefore be better understood as sequencing some forms of justice with others. This approach acts as a potential ameliorating factor to the overall programme of justice and accountability pursued by The Gambia. This apparently genuine desire to sequence justice may explain why, in contrast to many other situations, there seems to be much more significant buy-in from the international human rights community, which has avoided criticism of the country for sequencing transitional justice. While calling for Jammeh to be held to account, groups such as Human Rights Watch have not pressured the Barrow government to pursue the former leader’s repatriation and prosecution in The Gambia. This cautious approach stems, at least partially, from listening to the views of victims and survivors. Reed Brody recounts how he asked a group of victims of Jammeh-era repression whether they wanted to see Jammeh prosecuted. All said they did. He then asked them if they wanted to see Jammeh prosecuted in The Gambia now. None said that they would!48 This indicates 47  See, for example, Africa News, “Investigating Jammeh’s reign of terror: Gambia commission kicks off,” January 8, 2019, https://www.africanews.com/2019/01/08/investigating-jammeh-s-reign-of-terror-gambia-commission-kicks-off//; Trial International, “Is The Gambia ready to confront its past?,” January 21, 2019, https://trialinternational.org/ latest-post/is-the-gambia-ready-to-confront-its-past/. 48  Comments by Brody made at the Wayamo Conference in Accra, Ghana, March 2019.

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that perhaps some international human rights organisations, even those that generally insist on criminal prosecution, are more sensitive to the political context in The Gambia. As the first stage of its sequencing of justice mechanisms, The Gambia has consecrated two primary accountability mechanisms in the wake of Jammeh’s departure: a commission to investigate Jammeh’s assets and the Truth, Reconciliation and Reparations Commission. The following sections explore each in turn.

“Show Me the Money” As noted above, rumours abound that the aircraft which carried Jammeh had trouble taking off from Banjul International Airport, due to the amount of gold present in its cargo. Photographs from the day of Jammeh’s departure show numerous luxury vehicles being loaded onto aircraft departing with the former Gambian leader. Notably, some sources believe that Jammeh’s hesitation to depart from The Gambia had little to do with any attempt to retain power and believe that he in fact wanted to retire at least a year before the transition.49 Again, this suggests that Jammeh may have stalled, in order to shore up his assets and wealth before departing for Equatorial Guinea. Unsurprisingly, then, following Jammeh’s departure, the Gambian authorities almost immediately set up a commission into the illegal seizure of property and assets in the country during his rule. In March 2019, a Commission of Inquiry—called the Janneh Commission after its head, Surahata Janneh—reported that it had identified at least US$362 million stolen during Jammeh’s rule. The Commission observed that these assets included 281 properties within The Gambia as well as a residence in America.50 In response to the report, Justice Minister Tambadou stated that “[t]his is a staggering amount of money that could have had significant impact on the lives of the ordinary people of this country. Instead, it was money used to satisfy the pretentious and delusional lifestyle of an egotistic megalomaniac, acts that were both unconscionable and criminal.” 49  Senior Western diplomat, The Gambia, consultation by author, 1 November 2017, Banjul, The Gambia. 50  “Gambia’s ex-President Yahya Jammeh ‘stole at least $362m’,” Al Jazeera, March 29, 2019, https://www.aljazeera.com/news/2019/03/gambia-president-yahya-jammeh-stole362m-190329181812901.html.

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The Commission’s report coincided with published findings of the Organized Crime and Corruption Reporting Project (OCCRP) which, in a report entitled “The Great Gambia Heist,” found that “Jammeh and his associates plundered nearly US$1 billion of timber resources and Gambia’s public funds.” The OCCRP report, based on confidential documents, largely from 2011 to 2016, also seeks to “[reconstruct] a detailed version of Jammeh’s private economy by mapping relationships between the people, government entities, and local and foreign businesses in the president’s orbit.”51 The links between identifying and, where possible, recovering and repatriating assets for states experiencing political transition and implementing a programme of transitional justice remain under-explored. In the case of The Gambia, however, it could have at least four important functions. First, the focus on what amounts to high-level corruption at the expense of the Gambian citizens could potentially convince some recalcitrant segments of the population—particularly those who remain supportive of Jammeh and were the beneficiaries of his patronage—that Jammeh’s regime was criminal and corrupt. Second, efficient recovery of assets could make it more difficult for Jammeh to return to power. Simply put, he will have fewer assets to sell or use in any “comeback attempt.” This is particularly important, given evidence that he has spoken with supporters about a possible return to The Gambia.52 Third, accumulating assets and funds, a process which has already begun with the sale of aircraft and luxury cars left by Jammeh in The Gambia, could help reduce potential tensions among competing prerogatives. As shown, accounting for the past is only one of the many challenges that the country currently faces. Regular power outages, an undiversified economy, youth unemployment, lagging infrastructure, poverty, etc., all require significant investment, which has to come from somewhere. Converting Jammeh’s assets into funding for these and other needs could help foster a sense that the accountability efforts pursued via the recovery and sale of assets enumerated by the Commission of Inquiry are directly useful for bettering the everyday lives of Gambians. Doing so 51  See Organized Crime and Corruption Reporting Project, “The Great Gambia Heist,” 2019, https://www.occrp.org/en/greatgambiaheist/. 52  “Gambian govt condemns ex-president’s ‘shocking’ return pledge,” News24, July 19, 2018, https://www.news24.com/Africa/News/gambian-govt-condemns-ex-presidentsshocking-return-pledge-20180719.

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would potentially decrease any sense of competition surrounding the various needs and priorities of the country. Fourth and finally, the funds could help to fund Gambian transitional justice efforts, therefore, acting as an ameliorating factor for justice and accountability measures in the country. Transitional justice is not a cheap endeavour, particularly when it comes to criminal prosecution and the provision of reparations. There would be some poetic irony in a dictator’s funds being used to achieve accountability for his own crimes, providing that reparations could be granted by the Truth, Reconciliation and Reparations Commission. This is particularly salient, given the economic situation facing the country and the government’s all too likely inability to compensate victims and survivors fully for their losses. It would also directly tie Jammeh’s illegally accumulated wealth to repairing and restoring the lives of his regime’s victims.

From Truth to Justice? Gambia’s Truth, Reconciliation and Reparations Commission Establishing the Truth, Reconciliation and Reparations Commission was a priority of the Barrow government even before coming to power. Following the new government’s rise to power, the Minister of Justice led a team which held consultations with international experts and groups, including the International Centre for Transitional Justice, the Wayamo Foundation, the Africa Group for Justice and Accountability, the UN, and Amnesty International, on drafting the terms of the TRRC.53 During this time, the government also held numerous consultations with communities across The Gambia. The consultations took place in the face of criticisms that the process was too slow and that the country should focus on criminal justice efforts.54 In addition to community consultations, the team travelled to South Africa and Sierra Leone to learn from experiences relating to their truth commissions. The Truth, Reconciliation and Reparations Commission Act was passed by the National Assembly in late 2017 and the TRRC was formally 53  Kebbya Jeffang, “Justice Minister Explains Membership Terms for TRRC,” Foroyaa, October 10, 2017, http://foroyaa.gm/justice-minister-explains-membership-termsfor-trrc/. 54  See Al Jazeera, “Will Gambia’s truth commission bring Jammeh to justice?” The Stream, January 14, 2019, http://stream.aljazeera.com/story/201901142200-0025771.

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launched on 15 October 2018. It is made up of eleven commissioners who come from a diversity of backgrounds and regions. According to the TRRC, the Commission will work “to investigate and establish a historical record of the nature, causes and extent of violations and abuses of human rights committed during the period July 1994 to January 2017 and to consider the granting of reparations to such victims and for connected matters.”55 More specifically, the TRRC lists its goals as: 1. Strengthening the rule of law and building truth between citizens and the state. 2. Justice and reparations for victims of the crimes committed by the former regime. 3. Increased inclusion of women, children, and marginalised groups in public life and strengthening of their rights and access to justice. 4. Promoting a peaceful and reconciled society that values diversity. 5. Creation of new and meaningful roles for citizens to participate in public life. 6. Ensuring dictatorship never happens again by shedding light on and overcoming the legacies of authoritarianism within state institutions and civic life.56 The TRRC website further speaks to the interest of the Commission to be sensitive and protect victims of the Jammeh regime, especially those most vulnerable to stigma, re-traumatisation, and reprisal: The TRRC will do everything possible to ensure safe and supportive spaces are available for the full participation of all citizens, with special emphasis on the importance of the active participation of victims in our planning and operations. The Commission will take special measures to ensure the safety, anonymity and confidentiality of informants, especially when children are involved.57

55  See Truth, Reconciliation and Reparation Commission Bill, (2017), available at https:// www.thegambiatimes.com/wp-content/uploads/2018/02/TRRC-Bill-Final-Draft.pdf. 56   Truth, Reconciliation and Reparation Commission, “Understanding the TRRC,” accessed April 12, 2019), http://www.trrc.gm/understanding-the-trrc/. 57  Truth, Reconciliation and Reparation Commission, “Victims and Survivors,” http:// www.trrc.gm/victim-centred-trrc/.

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Of particular note, every available precaution will be taken to ensure the safety and wellbeing of survivors of sexual abuse and gender-based violence, and other vulnerable groups. This includes survivors of Jammeh’s forced HIV treatments, who risk stigmatisation should their experiences be made public in unsupportive forums.58 The TRRC has been granted a two-year mandate to complete its work, though this may be extended by presidential decree. The Commission has the power to recommend the granting of amnesty “upon application by a person making full disclosures of their involvement in human rights violations or abuses and expressing remorse for their acts or conduct.”59 While the TRRC Act prohibits the granting of amnesties for crimes against humanity,60 there remains confusion over the amnesty provisions and whether the granting of amnesty means that those who receive one can be granted full protection from prosecution or whether the amnesty may be used as a means to offer reduced sentences (or both). The TRRC’s Executive Secretary is Dr Baba Galleh Jallow, a former journalist who spent seventeen years in exile in the US.  Its Deputy Executive Secretary is Musu Bakoto Sawo, a survivor of female genital mutilation and a social justice activist. The Lead Counsel of the TRRC is Essa Faal, who previously worked as a defence counsel as well as an investigator at the International Criminal Court (ICC). Jallow has committed the TRRC to focusing not only on exposing the truth of human rights violations committed by the members of the Jammeh regime, but also on what he sees as the root causes that created the permissive conditions for a twenty-two-year-long dictatorship in The Gambia. Asked why the country needs a TRRC, he explained that: Some reasons are obvious, some are not. It is obvious that there were lots of human rights violations; we had a very oppressive system. We have a lot of victims; there have been enforced disappearances, torture, and the murder of political opponents. To achieve justice, we must find out the truth about the human rights violations. The not-so-obvious, but equally important, reason is the fact that there are certain systemic and cultural factors that 58  Truth, Reconciliation and Reparation Commission, “Welcome to the TRRC,” accessed April 12, 2019, http://www.trrc.gm. 59  See TRRC Bill (2017). 60  This effectively prohibits the granting of amnesty for any and all core international crimes committed in The Gambia, as the country did not experience war crimes or genocide under the Jammeh regime.

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enabled the dictatorship that need to be brought out into the open and discussed, so that we don’t have recurrences. If we prosecute people but we don’t address the systematic cultural causes of the dictatorship, we are likely to slide back into dictatorship at some point. The political culture needs to be transformed to avoid recurrence. That’s the less obvious reason.61

The TRRC began hearing testimony in January 2019. The level of the witnesses participating at hearings and the testimony received in the first months of the TRRC have been impressive. In the first stage of the TRRC, focusing on Jammeh’s coup and the initial period of his subsequent rule, nineteen individuals “were adversely mentioned as perpetrators of and/or accessory to gross human rights violations committed during the coup and the early aftermath.”62 The testimony of some (including perpetrators) has been powerful. Journalist Mustapha K.  Darboe, for example, recounts the testimony of Demba Nije, Jammeh’s Chief of Staff during and following the coup: Njie broke into tears before the nine commissioners and looked down on the table. He was a lieutenant in the army before the July 1994 coup. The coup had brought him into the State House as both Chief of Staff and Commander of the State Guard battalion but he couldn’t forget that day. “I heard Yahya Jammeh say ‘kill all the ring leaders’ and that I did not forget. I realized that they had arrested some people and they were going to kill them,” said Njie, crying, “This was the first time I heard an instruction to kill.”63

Testimony heard at the TRRC will likely also cause waves beyond The Gambia. Current ICC Prosecutor Fatou Bensouda, a Gambian national who was Justice Minister and Attorney-General under Jammeh between 1998 and 2000, was named in the testimony of former school headmaster, 61  “A Conversation on Truth and Reconciliation in The Gambia,” International Center for Transitional Justice, September 9, 2018, https://www.ictj.org/news/conversationtruth-and-reconciliation-gambia. 62  The Point and Aneked, “Truth, Reconciliation and Reparations Commission (TRRC) Digest,” Edition 1, accessed April 23, 2019, https://docs.wixstatic.com/ugd/54059b_49 da4c5374ef4b64903a1ff0ff2a2f97.pdf?index=true. 63  Mustapha K. Darboe, “Evidence at Gambia’s Truth Commission Gets Closer to Former Ruler,” Justice Info, March 1, 2019, https://www.justiceinfo.net/en/truthcommissions/40461-evidence-at-gambia-s-truth-commision-gets-closer-to-former-ruler. html.

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Batch Samba Jallow. He claimed that Bensouda had falsely accused him with treason following Jammeh’s coup.64 Jallow testified before the TRRC saying that the charges were baseless and that he was subsequently tortured in prison. The allegations against him were later dropped.65 While the TRRC is in its infancy, it has already demonstrated that it has “teeth” and that it is prepared to act in support of victims by issuing reparations without waiting for the conclusion of its mandate. In March 2019, two former senior figures in the regime—former Minister of Local Government and Land, Yankuba Toura, and former speaker of Gambia’s National Assembly, Fatoumatta Jahumpa Ceesay—were indicted for allegedly attempting to intimidate a key witness prior to his testimony before the TRRC.66 Arrest warrants have also been issued by the Ministry of Justice for two individuals who came before the TRRC but were deemed to be untruthful in their testimony. In response to the “outrageously dishonest” testimony of one alleged perpetrator, military officer John C.B. Mendy, the Ministry requested his arrest and stated that “any attempts to deliberately conceal the truth in the face of overwhelming evidence will be regarded as an attempt to undermine the integrity of the process, and an unwillingness to co-operate and assist in the reconciliation process, and will therefore bear serious consequences.”67 While welcomed by some, such arrests have also led to some confusion as to what the immediate powers of the TRRC are, whether it can itself request the prosecution of perpetrators (and what powers under the TRRC Act it has to do so) as well as calls for greater transparency in the way that the Commission exercises its authority.68 Notably, it took the Justice Ministry two weeks to clarify that it, and not

64  Kerr Fatou, “TRRC: Fatou Bensouda charged me treason, says witness,” January 28, 2019, http://www.kerr-fatou.com/trrc-fatou-bensouda-charged-me-treason-sayswitness/. 65  The Point and Aneked, “Truth, Reconciliation and Reparations Commission (TRRC) Digest.” 66  See Mustapha K. Darboe, “Gambia’s Truth Commission Shows it has Teeth,” Justice Info, March 6, 2019, https://www.justiceinfo.net/en/truth-commissions/40497-gambias-truth-commission-shows-it-has-teeth.html. 67  See “Justice Ministry orders arrest of TRRC witness, recommends sacking,” The Point April 3, 2019, http://thepoint.gm/africa/gambia/article/justice-ministry-orders-arrestof-trrc-witness-recommends-sacking. 68  Nana-Jo Ndow, Founder and Executive Director of the ANEKED, conversation with author, 9 April 2019, Toronto, Canada.

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the TRRC, had requested the arrest warrants.69 But the episode suggests the need for more clarity and transparency on the decision-making of the TRRC and how it interacts with other bodies, such as the Justice Ministry and police. In addition—and seemingly unique among truth commissions—the TRRC has granted reparations to victims just a few months into its mandate. Typically, reparations are granted following the final report and issuance of recommendations by a truth commission. Indeed, some scholars persuasively argue that allowing a truth commission to grant reparations itself can lead to warped incentives and unmanageable expectations.70 As Priscilla Hayner writes, “[i]deally, given the amount of time and personnel that are necessary to corroborate and administer claims, and because the reparations programme should be open to those who do not testify to the truth commission, the implementation of a reparations program should not be done by a truth commission itself … The possibility of money following from testimony could provide an incentive for people to give false statements.”71 An overlooked advantage of such a system, however, is that the Commission can grant reparations to victims as and when the need arises. According to Executive Secretary Jallow: The decision of the Reparations Committee is brought to the Commission and, when it is approved, the payment is done. Whereas other truth commissions recommend, we are empowered to grant reparations without even consulting anyone … If someone is facing a medical condition, should we say ‘let’s wait before the end of the process to take the person to a doctor’? That does not make sense … As the hearing starts, and the reparations committee and the Commission meet, they will determine other forms of reparation that will be paid out. We are not waiting till the end of the process. We are helping the victims as the process unfolds.72 69  Marie Bojang, “Ministry of Justice Ordered Arrest Of Witnesses- Faal,” The Voice, April 23, 2019, https://www.voicegambia.com/2019/04/23/ministry-of-justice-orderedarrest-of-witnesses-faal/. 70  For an analysis on truth commissions and reparations, see Priscilla Hayner, Unspeakable Truths—Transitional Justice and the Challenge of Truth Commissions, (Routledge, 2002), 163–181. 71  Ibid., 180. 72  Mustapha K. Darboe, “Gambia: When Reparations Can’t Wait,” Justice Info, February 7, 2019, https://www.justiceinfo.net/en/truth-commissions/40232-gambia-when-reparations-can-t-wait.html.

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In order to administer such reparations, the Reparations Committee of the TRRC set up a medical board to offer funding for treatment to victims of Jammeh-era abuses. These include students injured in the April 2000 Student Massacre as well as demonstrators abused and tortured after the 16 April 2016 demonstrations which, in part, led to popular disenchantment with the regime. The TRRC is also using the modest funds available to help finance the education of children of victims.73 How the issuance of such reparations will affect the TRRC and how this policy may influence victims’ incentive to participate in the work of the Commission remains to be seen, but it certainly appears to be meaningful to victims and well received by those survivors that have received the Commission’s attention and have had access to reparations. Following the conclusion of its mandate, the TRRC is expected to grant symbolic, collective, and individual reparations, though questions remain as to where the necessary funds will come from. The Commission will also have to confront a number of other challenges, many of which have been readily acknowledged by the TRRC staff. Two particularly significant challenges pertain to dealing with perpetrator-­ victims74 and with the chronology of the Jammeh regime.75 It is not uncommon for conflict-affected states to be confronted with victims who are also perpetrators of atrocities. A classic example is the child soldier who is both the victim of a crime, including conscription and the use of various forms of harm to dissuade him or her from defecting, and a perpetrator of crimes, often against his or her own communities.76 The Gambia, however, has perpetrator-victims, individuals who perpetrated crimes as members of the Jammeh regime but who were, for various reasons including their expression of political dissent, dismissed from positions of power and subsequently became victims of abuses by the regime which they had formerly served.

 Ibid.  Typically, they are termed “victim-perpetrators”. However, in The Gambia, it is more appropriate to call them “perpetrator-victims” to reflect the chronology of their experience. 75  See Laura Angela Bagnetto, “A Deeper Look at Gambia’s Truth, Reconciliation and Reparations Commission,” Radio France Internationale, January 11, 2019, http://en.rfi.fr/ africa/20190111-behind-scenes-look-gambia-s-new-truth-reconciliation-and-reparationscommission. 76  Mark Drumbl, Reimagining Child Soldiers in International Law and Policy, (Oxford: Oxford University Press, 2012). 73 74

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One instance of this is Sana Sabally, who served Jammeh as a co-­ conspirator and as what reports call the role of the junta’s “former number 2.”77 In what one observer has called a “historical moment” that “no one had ever imagined” would happen and which brought the country to “a halt,” Sabally testified to the TRRC on 24 April 2019. 78 He informed the Commission that he was responsible for the torture and murder of eleven military officers on Jammeh’s orders, following a failed coup in November 1994. Sabally also explained how, on numerous occasions, his officers had shot and tortured citizens for the simple reason that they had been slow to get out of the way of his military convoy. Sabally expressed remorse for his role in these crimes, even addressing a victim of one of the shootings, Alo Bah, and apologising to her in front of cameras. Following Jammeh’s coup, Sabally had taken the position that the military government should step down after six months. As a result, he was arrested in January 1995. Consequently, Sabally the perpetrator becomes Sabally the victim. He told the TRRC that he had been waterboarded, raped, and brutally tortured in prison. Sabally insisted that he had forgiven the perpetrators of these crimes, stating that he was “not bitter but better” after his incarceration.79 Following his release from prison in 2005, Sabally trained to be a doctor and now practices in Senegal, with a specialisation in treating trauma, services he offered his victims should they want them. Judging by responses on social media, Sabally’s testimony met with mixed reactions. Notably, however, Matty Sallah, the spouse of one of the soldiers tortured and killed under Sabally’s command in 1994, said that she had forgiven him “for his honesty and truthfulness for the crime he committed.”80 Whether Sabally’s candid testimony and contrition are sufficient reasons to grant him amnesty for his crimes remains to be seen. Sabally’s appearance before the TRRC is indicative of how the Commission plans to confront such individuals as both victims and perpetrators. According to Executive Secretary Jallow, “We do have those kinds of people—people who were perpetrators or part of the alleged p ­ erpetrators 77  See Mustapha K. Darboe, “TRRC in Gambia: Sanna Sabally’s Extraordinary Moment of Truth,” Justice Info, April 26, 2019, https://www.justiceinfo.net/en/truthcommissions/41246-trrc-gambia-sanna-sabally-extraordinary-moment-of-truth.html. 78  Sabally’s testimony to the TRRC can be viewed at QTV Gambia, “TRRC DAY 49 Pt1 25.04.19,” April 25, 2019, https://www.youtube.com/watch?v=cIpIAg4gwgU&feature=y outu.be. 79  See Darboe, TRRC in Gambia, (2019). 80  Ibid.

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before, and then fell out with the regime, and then became victims … We’ll treat you as a victim, if that’s how you came to us, and then we’ll also consider you as a perpetrator. We are not discounting those scenarios.” It remains unclear, however, precisely how the TRRC will be able to address victim-perpetrators, especially with regard to the potential issuance of reparations and amnesty. Could, for example, a perpetrator be granted reparations for his/her suffering as a victim as well as be prosecuted for his/her crimes? Such questions loom over the TRRC’s work. It is also noteworthy that the TRRC has decided to address Jammeh-­ era abuses chronologically, beginning in 1994 with the Jammeh’s coup and its immediate aftermath. On the face of it, this is sensible. However, it may be problematic, given that some victims and survivors of the first years of the TRRC, particularly victims of highly stigmatised crimes such as rape or other forms of sexual violence, may not trust the Commission sufficiently to come forward and testify before it. As Laura Angela Bagneto asks, “What happens if victims in 1994 are too afraid to speak now, but perhaps could be persuaded at a later date?”81 According to Executive Secretary Jammeh, victims who only come forward later in the TRRC’s mandate will be welcomed on a case-by-case basis. This places significant pressure on the TRRC to foment trust in relevant communities, particularly given that the Commission is already well into its two-year lifespan. Many challenges remain, but the TRRC has received accolades from outside observers. Reed Brody asserts that the Commission “continues to impress me every day. It has been set up after a very inter-active consultation. It is like a soap opera … It is both building the case, the record for a prosecution, and creating additional political will, so that down the road, we can imagine the government will seek to bring Yahya Jammeh back.”82 Expectations of the TRRC among Gambians are also high: After twenty-two years of dictatorship, Gambians should remember that out of suffering, healing is possible … Gambians can reconcile and rebuild our great country with this ethos and empathy … The ball is in our court … 81  Laura Angela Bagnetto, “A Deeper Look at Gambia’s Truth, Reconciliation and Reparations Commission,” Radio France Internationale, January 11, 2019, http://en.rfi.fr/ africa/20190111-behind-scenes-look-gambia-s-new-truth-reconciliation-and-reparationscommission. 82  Reed Brody, interview by author, 22 March 2019, Accra, Ghana.

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[The] TRRC will be a tremendous opportunity to accept the darkness of our collective history and to proceed, without delay, with reconciliation and rebuilding our relationships as one Gambian peoples. Let’s not let it slip away. We can have a great nation with when we reconcile and [have] forgiveness [sic].83

The TRRC, as well as the Janneh Commission, are ultimately a reflection of the conditions underpinning The Gambia’s transition. The TRRC, in particular, is a novel and sophisticated experiment in transitional justice, illustrative of the commitment of the government, not only to contribute to justice in The Gambia but also to contribute to the theory and application transitional justice more broadly.84 It is intended to be the first step in the sequencing of justice in the country, a means to build a record and establish who should be subsequently prosecuted and for what crimes. Whether it can accomplish this during its two-year mandate and whether, after its work has been completed, the country will in fact have the capacity to prosecute Jammeh-era perpetrators is unclear. And there is always the question of money. While the extent of the harm committed under Jammeh may be less than in other transitional contexts, it is substantial, and reparations will be costly. So too will any subsequent trials, and it remains to be seen whether and how The Gambia will use repatriated assets or other sources to propel its transitional justice programme forward—and how doing so will interact and intersect with other state priorities and goals.

Conclusion—Preparing the Ground It bears repeating that this chapter does not pretend to be an exhaustive account of the factors that underpin and influence The Gambia’s approach to transitional justice. There are many others, including the rights and capacities of the press, foreign investment and development programming, international pressure, constitutional reform, and political machinations among parties now freely vying for influence. Still, it is clear that the 83  Alagi Yorro Jallow, “Gambia: Truth, Reconciliation, Justice and Forgiveness,” Freedom Newspaper, April 25, 2019, https://www.freedomnewspaper.com/2019/04/25/ gambia-truth-reconciliation-justice-and-forgiveness/. 84  This point was made by the Minister of Justice during consultation by author, 2 November 2017, Banjul, The Gambia.

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ameliorating factors and pre-existing conditions discussed above have informed the shape of the path to transitional justice that the country has taken. It is important to stress that the country’s approach to transitional justice represents something of a social contract with the Gambian people: it is not just a promise to establish a factual narrative of the Jammeh era and/or the truth of certain abuses and human rights violations, or to identify Jammeh’s assets; it is an effort to establish a record of evidence that will subsequently feed directly into the prosecution of perpetrators who have not received amnesty from the Commission. Civil society organisations and victims associations, including the Gambian Centre for Victims of Human Rights Violations, have regularly reiterated their expectation that criminal justice—and not just truth—will be achieved and that the government will invest in it: “For us victims, the truth is not enough! Separating the promotion of reconciliation from the promotion of justice simply undermines both. We expect the same willingness to build the capacity of the judicial system and the state prosecutor and find adequate funding and expert support for it.”85 A number of issues will determine the ultimate effectiveness of The Gambia’s experiment with transitional justice. In the coming months, additional institutions will be created, which will have a role in justice and accountability efforts in the country. A Human Rights Commission and a Constitutional Review Commission are in the midst of being set up. However, as the TRRC Deputy Executive Secretary Sawo says, “These groups are just being established, so everyone is still working in isolation … Our partnership is quite essential. If we can devise a strategy for the different mechanisms to come together on these issues, this will also help inform the TRRC’s work.”86 Indeed, it will be critical for such institutions to find effective means to communicate and co-ordinate efforts, rather than compete, duplicate efforts, and potentially confuse both victims and survivors as well as the wider population as to which institution is responsible for what. But the most pertinent challenge facing The Gambia with regard to justice and accountability relates to building the capacity to investigate 85  “Press Release from The Gambia Center for Victims of Human Rights Violations, ANEKED and The Solo Sandeng Foundation,” The Point, December 3, 2018, www.thepoint.gm/africa/gambia/article/press-release-of-aneked. 86  See International Center for Transitional Justice. “A Conversation on Truth and Reconciliation in The Gambia,” September 9, 2018, https://www.ictj.org/news/ conversation-truth-and-reconciliation-gambia.

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and prosecute alleged human rights violations and crimes against humanity committed by the Jammeh regime effectively. As noted above, many expect that the country will prosecute such individuals, including those that continue to hold positions of power and influence. Indeed, the government’s National Strategy Document for Transitional Justice in The Gambia (2017–2021) speaks to the possibility of “setting up of a special court to handle prosecutions of individuals identified to have committed human rights violations in order to prevent backlogging in the already recovering and saturated court system.”87 But such trials are complex and require specific expertise which, for obvious reasons, was not developed under Jammeh. The need to enhance the country’s capacity to conduct such prosecutions—which will have to include the training of investigators, prosecutors, and judges—may determine both the pace of transitional justice efforts and the buy-in of those segments of the population that expect criminal prosecutions of perpetrators. They will depend on the existing conditions and ameliorating factors fostered in the coming months and years and whether, in the words of the editors of this volume, they lead to “something ‘stickier’ that will produce more traction” for transitional justice efforts.88 As it stands, the TRRC will have to finish its work within two years and the expectation will be that the evidence it has collected will be used in trials. Will the country be ready by then? That is perhaps the biggest challenge facing the nation and its decision to sequence justice. It is a tall order. The government of The Gambia has made an impressive if imperfect start but part of the deal with Gambian citizens is eventual criminal justice. The clock, as it were, is ticking.

Bibliography AFP. “Gambia makes more arrests over death of activist Solo Sandeng in 2016,” AfricaNews, March 27, 2018, https://www.africanews.com/2018/03/27/ another-gambian-senior-intelligence-of ficial-arrested-in-connectionwith-an//. Africa News. “Investigating Jammeh’s reign of terror: Gambia commission kicks off,” January 8, 2019, https://www.africanews.com/2019/01/08/investigatingjammeh-s-reign-of-terror-gambia-commission-kicks-off//. 87  Government of The Gambia, “National Strategy Document for Transitional Justice in The Gambia, 2017–2021,” December 2018, copy on file with author. 88  El-Masri, Lambert and Quinn,  “Changing the Context: Can Conditions Be Created That Are More Conducive to Transitional Justice Success?”

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AfricaNews. “Jammeh, Nguema dance as Olomide sings at Equatorial Guinea bash,” January 3, 2019, https://www.africanews.com/2019/01/03/jammehnguema-dance-as-olomide-sings-at-equatorial-guinea-bash/. Al Jazeera. “Gambia’s ex-President Yahya Jammeh ‘stole at least $362m’,” March 29, 2019a, https://www.aljazeera.com/news/2019/03/gambia-presidentyahya-jammeh-stole-362m-190329181812901.html. Al Jazeera. “Will Gambia’s truth commission bring Jammeh to justice?”, The Stream, January 14, 2019b, http://stream.aljazeera.com/story/ 201901142200-0025771. APA News. “Gambia: New target set to tackle intractable energy crisis,” October 24 2017, http://apanews.net/en/pays/gambie/news/gambia-new-targetto-end-protracted-energy-crisis. Bagnetto, Laura Angela. “A Deeper Look at Gambia’s Truth, Reconciliation and Reparations Commission,” Radio France Internationale, January 11, 2019, http://en.rfi.fr/africa/20190111-behind-scenes-look-gambia-s-new-truthreconciliation-and-reparations-commission. BBC. “Gambia crisis: Barrow sworn in in Senegal as Jammeh stays put,” January 19, 2017, https://www.bbc.com/news/world-africa-38675741. BBC. “Gambia leader Yahya Jammeh rejects election result,” December 10, 2016a, https://www.bbc.com/news/world-africa-38271480. BBC. “Gambia’s Jammeh loses to Adama Barrow in shock election result,” December 2, 2016b, https://www.bbc.com/news/world-africa-38183906. BBC. “Gambia’s Yahya Jammeh ready for ‘billion-year’ rule,” December 12, 2011, https://www.bbc.com/news/world-africa-16148458. BBC. “Ghanaian shoe seller vows to bring Yahya Jammeh to justice,” 18 May 18, 2018, https://www.bbc.com/news/world-africa-44122843. BBC. “The Crack in Gambia’s Smile,” October 21, 2016c, https://www.bbc. com/news/world-africa-37716674. BBC. “Voting with marbles in The Gambia,” November 30, 2016d, https:// www.bbc.com/news/av/world-africa-38164870/gambia-election-votersuse-marbles-to-choose-president. Bojang, Marie. “Ministry of Justice Ordered Arrest Of Witnesses- Faal,” The Voice, April 23, 2019, https://www.voicegambia.com/2019/04/23/ministry-ofjustice-ordered-arrest-of-witnesses-faal/. Callimachi, Rukmini “‘I can cure Aids, and I will’,” The Guardian, February 21, 2007, https://www.theguardian.com/world/2007/feb/21/aids. Connolly, Lesley. “Sustaining Peace in the ‘New Gambia’,” Accord, 2018, available at https://www.accord.org.za/conflict-trends/sustaining-peace-in-thenew-gambia/. Darboe, Mustapha K. “Evidence at Gambia’s Truth Commission Gets Closer to Former Ruler,” Justice Info, March 1, 2019a, https://www.justiceinfo.net/ en/truth-commissions/40461-evidence-at-gambia-s-truth-commision-getscloser-to-former-ruler.html.

7  “SOME REASONS ARE OBVIOUS, SOME ARE NOT.” THE GAMBIAN… 

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Darboe, Mustapha K. “Gambia: When Reparations Can’t Wait,” Justice Info, February 7, 2019b, https://www.justiceinfo.net/en/truth-commissions/40232gambia-when-reparations-can-t-wait.html. Darboe, Mustapha K. “Gambia’s Truth Commission Shows it has Teeth,” Justice Info, March 6, 2019c, https://www.justiceinfo.net/en/truthcommissions/40497-gambia-s-truth-commission-shows-it-has-teeth.html. Darboe, Mustapha K. “TRRC in Gambia: Sanna Sabally’s Extraordinary Moment of Truth,” Justice Info, April 26, 2019d, https://www.justiceinfo.net/en/ truth-commissions/41246-trrc-gambia-sanna-sabally-extraordinary-momentof-truth.html. Searcey, Dionne and Jaime Yaya Barry. “Yahya Jammeh Agrees to Step Down, as 45,000 Flee Amid Gambia Standoff,” New York Times, January 20, 2017a, https://www.nytimes.com/2017/01/20/world/africa/gambia-jammehpresident-barrow.html?module=inline. Drumbl, Mark. Reimagining Child Soldiers in International Law and Policy, (UK Oxford University Press, 2012). Fabricius, Peter. “Jammeh loses his marbles,” Institute for Security Studies, December 7, 2016, https://issafrica.org/iss-today/jammeh-loses-his-marbles. Freeman, Colin. “Good Life in a Palace in Equatorial Guinea,” Foreign Policy, April 3, 2017, https://foreignpolicy.com/2017/04/03/gambias-ousteddictator-is-living-the-good-life-in-a-palace-in-equatorial-guinea/. Freeman, Colin. “West African leaders arrive in Gambia to convince Yahya Jammeh to step down, as soldiers ‘take over election building’,” Telegraph, December 13, 2016, https://www.telegraph.co.uk/news/2016/12/13/ west-african-leaders-arrive-gambia-convince-yahya-jammeh-step/. “Gambian govt condemns ex-president’s ‘shocking’ return pledge,” News24. July 19, 2018, https://www.news24.com/Africa/News/gambian-govt-condemnsex-presidents-shocking-return-pledge-20180719. Ghana Web. “Call made for Jammeh’s extradition and trial,” May 22, 2019, h t t p s : / / w w w. g h a n a w e b . c o m / G h a n a H o m e P a g e / N e w s A r c h i v e / Call-made-for-Jammeh-s-extradition-and-trial-748469. Ghana Web. “Ghana Government Studying Yahya Jammeh’s Case—Information Ministry,” May 28 2018, https://www.ghanaweb.com/GhanaHomePage/ NewsArchive/Ghana-gover nment-studying-Yahya-Jammeh-s-caseInformation-Ministry-655375. Government of The Gambia. Truth, Reconciliation and Reparation Commission Bill. (2017), available at https://www.thegambiatimes.com/wp-content/ uploads/2018/02/TRRC-Bill-Final-Draft.pdf. Government of The Gambia. “National Strategy Document for Transitional Justice in The Gambia, 2017–2021,” December 2018.

182 

M. KERSTEN

Hayner, Priscilla Unspeakable Truths—Transitional Justice and the Challenge of Truth Commissions, (Routledge, 2002), 163–181. Human Rights Watch. “Gambia: Ex-President Tied to 2005 Murders of Ghanaian and Nigerian Migrants,” https://www.hrw.org/news/2018/05/16/ gambia-ex-president-tied-2005-murders-ghanaian-and-nigerian-migrants. International Center for Transitional Justice. “A Conversation on Truth and Reconciliation in The Gambia,” September 9, 2018, https://www.ictj.org/ news/conversation-truth-and-reconciliation-gambia. International Organization for Migration. “Over 3,500 Returned Migrants; 2,000 Receive Reintegration Assistance in The Gambia,” February 15, 2019, https:// reliefweb.int/report/gambia/over-3500-returned-migrants-2000-receivereintegration-assistance-gambia. Jallow, Alagi Yorro. “Gambia: Truth, Reconciliation, Justice and Forgiveness,” Freedom Newspaper, April 25, 2019, https://www.freedomnewspaper. com/2019/04/25/gambia-truth-reconciliation-justice-and-forgiveness/. Jallow, Yankuba. “Trial of NIA 8 Suffers Setback,” Foroyaa, April 25 2018, http:// foroyaa.gm/trial-of-nia-8-suffers-setback/. Jammeh, Saikou and Ruth Maclean. “Survivors of Yahya Jammeh’s bogus Aids cure sue former Gambian leader,” The Guardian, June 1, 2018, https://www. theguardian.com/global-development/2018/jun/01/survivors-yahya-jammehsbogus-aids-cure-sue-former-gambian-leader. Jeffang, Kebbya. “Justice Minister Explains Membership Terms for TRRC,” Foroyaa, October 10, 2017, http://foroyaa.gm/justice-minister-explainsmembership-terms-for-trrc/. “Justice Ministry orders arrest of TRRC witness, recommends sacking,” The Point. April 3, 2019, http://thepoint.gm/africa/gambia/article/justice-ministryorders-arrest-of-trrc-witness-recommends-sacking. Justice Rapid Response. “From Fear to Freedom: The Search for Justice in The Gambia,” November 1, 2018, http://www.justicerapidresponse.org/fromfear-to-freedom-gambia/. Maclean, Ruth. “Equatorial Guinea says it will protect former Gambian leader,” The Guardian, January 27, 2018, https://www.theguardian.com/ world/2018/jan/27/equatorial-guinea-says-it-will-protectyahya-jammeh-former-gambian-leader. Maclean, Ruth. “The Gambia’s new rulers vow to prosecute outgoing president,” The Guardian, December 7, 2016 https://www.theguardian.com/ world/2016/dec/07/the-gambias-new-r ulers-vow-to-pr osecuteoutgoing-president. Mersie, Ayenat. “Truth First, Reconciliation Later,” Foreign Policy, January 11, 2019, https://foreignpolicy.com/2019/01/11/truth-first-reconciliationlater-gambia-jammeh-trrc-truth-reconciliation-transitional-justice/.

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Okello, Moses. “The False Polarisation of Peace and Justice in Uganda,” Expert Paper Workshop 2—Justice in Situations of Ongoing Conflict, International Center for Transitional Justice (2007). Organized Crime and Corruption Reporting Project. “The Great Gambia Heist,” 2019, https://www.occrp.org/en/greatgambiaheist/. “Press Release from The Gambia Center for Victims of Human Rights Violations, ANEKED and The Solo Sandeng Foundation,” The Point, December 3, 2018, www.thepoint.gm/africa/gambia/article/press-release-of-aneked. QTV Gambia. “TRRC DAY 49 Pt1 25.04.19,” April 25, 2019, https://www. youtube.com/watch?v=cIpIAg4gwgU&feature=youtu.be. Searcey, Dionne and Jaime Yaya Barry. “As Gambia’s Yahya Jammeh Entered Exile, Plane Stuffed With Riches Followed,” New York Times, January 23, 2017b, https://www.nytimes.com/2017/01/23/world/africa/yahya-jammeh-gambia-exile.html. Snyder, Jack and Leslie Vinjamuri. Trials and Errors—Principle and Pragmatism in Strategies of International Justice, International Security, 28 no. 3 (Winter 2003/04): 5–44. Sowe, Makam. “GAMBIA: An Open Letter To The Attorney General And Ministry Of Justice,” Freedom Newspaper, April 13, 2019, https://www. freedomnewspaper.com/2019/04/13/gambia-an-open-letter-to-the-attorneygeneral-and-ministry-of-justice/. The Gambia. International Organization for Migration, accessed April 1, 2019, https://www.iom.int/countries/gambia. The Gambia. “National Development Plan (2018–2021),” available at: http:// www.thegambiatimes.com/wp-content/uploads/2018/02/1.-The-GambiaNational-Development-Plan-2018-2021-Full-Version.pdf. The Point and Aneked. “Truth, Reconciliation and Reparations Commission (TRRC) Digest,” Edition 1, accessed April 23, 2019, https://docs.wixstatic. com/ugd/54059b_49da4c5374ef4b64903a1ff0ff2a2f97.pdf?index=true. Trial International. “Is The Gambia ready to confront its past?” January 21, 2019, https://trialinternational.org/latest-post/is-the-gambia-ready-toconfront-its-past/. “TRRC: Fatou Bensouda charged me treason, says witness,” Kerr Fatou. January 28, 2019, http://www.kerr-fatou.com/trrc-fatou-bensouda-charged-me-treasonsays-witness/. Truth, Reconciliation and Reparation Commission. “Understanding the TRRC,” accessed April 12, 2019a), http://www.trrc.gm/understanding-the-trrc/. Truth, Reconciliation and Reparation Commission. “Welcome to the TRRC,” accessed April 12, 2019b, http://www.trrc.gm. United States Department of State. “The Gambia 2017 Human Rights Report,” 2017, https://www.state.gov/documents/organization/277247.pdf.

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World Bank. “The Gambia: An Assessment of Poverty,” accessed April 25, 2019, http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/ EXTPOVERTY/EXTPA/0,,contentMDK:20204377~menuPK:435735~pag ePK:148956~piPK:216618~theSitePK:430367~isCURL:Y~isCURL:Y~isCU RL:Y~isCURL:Y~isCURL:Y,00.html. Zartman, I.  William. “Ripeness: The Hurting Stalemate and Beyond,” in International Conflict Management after the Cold War, edited by Paul C. Stern and Daniel Druckman, (US: National Academy Press, 2000), 225–250.

Interviews

and

Consultations

by the

Author

Brody, Reed. Interview by author. 22 March 2019. Accra, Ghana. Consultation with diplomats and senior political officials by author, and Africa Group for Justice and Accountability. 1–3 November 2017. Banjul, The Gambia. Ministry of Justice. Consultation by author. 2 November 2017. Banjul, The Gambia. Ndow, Nana-Jo. Founder and Executive Director of the ANEKED. Conversation with author. 9 April 2019. Toronto, Canada. Senior Western diplomat. Consultation by author. 1 November 2017. Banjul, The Gambia.

CHAPTER 8

Institutional Trustworthiness, Transformative Judicial Education and Transitional Justice: A Palestinian Experience Reem Bahdi and Mudar Kassis

Domestic courts can help create conditions to enhance transitional justice strategies following periods of sustained violence. But these same courts are often untrustworthy, either because they are institutionally weak or because they have been deeply implicated in the abuses of the past. Before they can take on the material and symbolic tasks required of them, previously untrustworthy judicial institutions must demonstrate their trustworthiness. Unsurprisingly, judicial reform has taken on an increasingly important place in transitional justice theory and practice.1 But transitional 1   Chandra L.  Sriram, Olga Martin-Ortega, and Joanna Herman, Evaluating and Comparing Strategies of Peacebuilding and Transitional Justice, JAD-PbP Working Paper

R. Bahdi (*) Faculty of Law, University of Windsor, Windsor, ON, Canada e-mail: [email protected] M. Kassis Birzeit University, Birzeit, Palestine e-mail: [email protected] © The Author(s) 2020 S. El-Masri et al. (eds.), Transitional Justice in Comparative Perspective, Memory Politics and Transitional Justice, https://doi.org/10.1007/978-3-030-34917-2_8

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justice theorists and practitioners do not often engage with judicial education as part of judicial reform theorising or programming. The modelling and delivery of judicial education programmes have been largely left to the development and rule of law experts. Using Palestine as its case study, this chapter posits that judicial trustworthiness represents an important condition for transitional justice to take hold and that judicial education can nurture judicial trustworthiness. Judicial education thus constitutes an ameliorating factor of the type outlined by El-Masri, Lambert and Quinn in the introduction to this volume. We begin by briefly distinguishing among trust, distrust and trustworthiness and explain the importance of judicial institutional trustworthiness. We then turn to judicial education as an ameliorating factor. Laying out the elements of a judicial education model designed around the concept of human dignity that we developed in the Palestinian context, we explain why this model of judicial education was particularly suited to nurturing judicial institutional trustworthiness. Our analysis draws on our own experiences developing and delivering judicial education programming focused on human dignity in Palestine between 2005 and 2012; 26 interviews with Palestinian judges who participated in our judicial education programme, and interdisciplinary scholarship from pedagogy, access to justice, trust/distrust/trustworthiness and transitional justice. Although we argue that judicial education can nurture judicial trustworthiness, we end with a note of caution. The Palestinian experience reinforces that judicial education can ameliorate efforts to nurture trustworthy national courts, but, contrary to the assumptions that are often made by development experts, education is necessary but not sufficient to foster institutional or political change. Ultimately, the Palestinian experience points to the inadequacies of pursuing rule of law programming, judicial reform and judicial education in the absence of transitional justice.

Series No. 1 (May 2009), 1–62, https://www.researchgate.net/profile/Olga_MartinOrtega/publication/228914875_Evaluating_and_comparing_strategies_of_peacebuilding_ and_transitional_justice/links/5728930008ae0acc4f493336/Evaluating-and-comparingstrategies-of-peacebuilding-and-transitional-justice.pdf.

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Trust, Distrust, Institutional Trustworthiness and Transitional Justice Societies function on trust; it has been linked to political stability, economic development and the rule of law. Widely studied, trust has been defined as “a psychological state comprising of the intention to accept vulnerability based on positive expectations of the intentions or behavior of another.”2 Economic growth requires some measure of interpersonal trust.3 Good governance has been described in terms of trust.4 Political stability correlates with trust in part because people who trust their government and its institutions are more likely to comply with official directives.5 Higher degrees of trust in government also discourage “spoiler” networks that threaten change and dilute positive social capital.6 Governments, public institutions, civil society and interpersonal relations are all objects of trust.7 Trust is so important to some accounts of peace and stability that Pablo de Greiff has defined reconciliation as “the condition under which citizens can trust one another as citizens again (or anew).”8 Distrust defines dysfunctional or unreconciled societies.9 Distrust is declarative and constitutive of political conflict, social divisions and economic instability. A diminished “willingness to coordinate action with others,” a consequence of unwillingness to trust, has been linked to 2  Denise M. Rousseau et al., “Not So Different After All: A Cross-Discipline View of Trust,” Academy of Management Review 23 (1998): 395. 3  Sjoerd Beugelsdijk, Henri L.F. de Groot, and Anton B.T.M. van Schaik, “Trust and Economic Growth: A Robustness Analysis,” Oxford Economic Papers 56, no. 1 (2004). 4  Margaret Levi, “A State of Trust” in Trust and Governance, ed. Valerie Braithwaite and Margaret Levi (New York: The Russell Sage Foundation, 2003), 77–101. 5  Tom R. Tyler and Huo J. Yuen, Trust in the Law: Encouraging Public Cooperation with the Police and Courts, (New York: The Russell Sage Foundation, 2002). 6  Pablo de Greiff, “Transitional Justice and Development” in International Development: Ideas, Experience, and Prospects, ed. Bruce Currie-Alder et al. (New York: Oxford University Press, 2014), 943. 7  Cynthia M.  Horne, “Trust and Transitional Justice” in Encyclopedia of Transitional Justice, ed. Lavinia Stan and Nadya Nedelsky (New York: Cambridge University Press, 2012), 1–13. 8  Pablo de Greiff, “Theorizing Transitional Justice,” Nomos: American Society for Political and Legal Philosophy 51 (2012), 50. 9  Suzanne McMurphy, “Trust, Distrust, and Trustworthiness in Argumentation: Virtues and Fallacies,” (paper presented at the Ontario Society for the Study of Argumentation Conference, Windsor, May, 2013), https://pdfs.semanticscholar.org/ffdd/8dd29f4a20ad4 eb4410dbffcb4451c414990.pdf.

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poverty.10 In cases of unreconciled societies marked by massive human rights abuses, those who benefit from such abuses seek to preserve the status quo precisely by feeding distrust between individuals and groups.11 Dictators, for example, sow distrust between people to “disarticulate possible sources of organised opposition.”12 Significantly, distrust is not simply the absence of trust, nor is distrust trust’s mirror opposite. Distrust has its own dynamics and consequences. Unlike trust, distrust can be generalised.13 The implication is that generalised distrust of government can readily mean that particular institutions within the government are also distrusted based on an overall assessment of government performance and not necessarily on the particular performance of the specific institution. Moreover, measures of particularised institutional distrust can signal the existence of generalised distrust of government. Distrust is also more durable than trust. While trust can wax and wane, accumulated grievances over time produce generalised distrust that is difficult to displace; “disaffection may occur not because of what each succeeding set of authorities is supposed to have done but simply because they are perceived to be authorities—and authorities are no longer thought worthy of trust.”14 While the relationship between distrust and action is dependent on a number of variables including factors like levels of alienation from a particular regime, the efficacy of past actions against the regime and the distrustors’ view of their own abilities, it is clear that distrust, once entrenched, is extremely difficult to overcome.15 It can inspire a range of responses from uncooperative, spoiler behaviour to the severing of relationships.16 At its best, distrust can inspire much-needed reforms.17 In all circumstances,  de Greiff, “Transitional Justice and Development,” 417.   Cynthia M.  Horne, “Lustration, Transitional Justice, and Social Trust in PostCommunist Countries: Repairing or Wresting the Ties that Bind?” Europe-Asia Studies 66, no. 2 (2014), 225. 12  de Greiff, “Transitional Justice and Development,” 417. 13  Cynthia M.  Horne, Building Trust and Democracy: Transitional Justice in PostCommunist Countries (Oxford: Oxford University Press, 2017), 28. 14  David Easton, “A Re-Assessment of the Concept of Political Support,” British Journal of Political Science 5, no. 4 (1975), 449. 15  Margaret Levi and Laura Stoker, “Political Trust and Trustworthiness,” Annual Review of Political Science 3, no. 1 (2000), 488. 16  Levi, Political Trust and Trustworthiness, 476. 17  Karen S. Cook, Russell Hardin, and Margaret Levi, Cooperation Without Trust? (New York: The Russell Sage Foundation, 2005), 2. 10 11

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however, distrust generates instability; those who govern clearly wish to avoid becoming distrusted and aim to maintain citizens’ trust. Whether people trust or distrust is a function of their “political lives, not their personalities or even their social characteristics.”18 People’s political lives are played out through institutions. In both reconciled and unreconciled societies, institutions mediate trust between citizens and governments and among citizens. “Institutions are the humanly devised constraints that structure political, economic and social interaction.”19 They discourage some actions and enable others. They distribute opportunities, resources and power across society. In unreconciled societies, institutions distribute resources and power unfairly and unevenly. Trust in institutions and institutional trustworthiness are not synonymous. Trust is a condition of the trustee; trustworthiness refers to the features of the institution that merit trust. At the same time, trust in institutions and institutional trustworthiness form a positive feedback loop. Trustworthy institutions are well placed to garner broad trust and cooperation which, in turn, can be marshalled into actions that shield trustworthy institutions from inappropriate interferences that threaten their trustworthiness.20 What makes institutions trustworthy? Or, put differently, what are the attributes of trustworthy institutions? Various theories have been advanced. Trust scholars have identified three attributes of institutional trustworthiness that help keep the concept analytically and functionally distinct from trust, even as institutional trustworthiness is conceptually and practically related to trust. “Integrity” describes the requirement that the institution operates on shared values and principles as those whose trust it is seeking. These shared values can be expressed in a multitude of ways. In the case of legal institutions, for example, they can be expressed through judicial decision-making, speeches of leaders and sources of law, including but not limited to constitutions. The key question is whether “the trustee adheres to a set of principles that the trustor finds acceptable.”21 “Benevolence” indicates whether the institution assumes a “positive orientation” towards the trustor.22 Does  Levi, Political Trust and Trustworthiness, 481.  Douglass C. North, “Institutions,” The Journal of Economic Perspectives 5, no. 1 (1991), 97. 20  Clause Offe, “How Can We Trust Our Fellow Citizens?” in Democracy and Trust, ed. Mark Warren (Cambridge: Cambridge University Press, 1999), 70–71. 21  Roger C. Mayer, James H. Davis, and F. David Schoorman, “An Integrative Model of Organizational Trust,” in Academy of Management Review 20, no. 3 (1995), 719. 22  Mayer, “An Integrative Model of Organizational Trust,” 719. 18 19

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the institution care about and act to protect the interests of those whose trust it is seeking? While integrity and benevolence are related in the sense that they can both be subsumed under the question of whether the institution and its imagined trustors share normative commitments, “ability” describes a “group of skills, competencies, and characteristics that enable a party to have influence within some specific domain.”23 Ability addresses the institution’s competence or ability to deliver on normative commitments. All three factors must exist for a trustor to deem an institution trustworthy. A trustee that is reliable or, alternatively, has ability or the capacity to influence results may not be trustworthy if they do not share the same goals, principles or interests as the trustor.24 Similarly, a trustee with proven abilities and known integrity may not be trustworthy because it has not demonstrated a particular attachment to the trustor.25 Scholars tend to agree that popular trust, institutional trustworthiness and transitional justice co-exist in mutually reinforcing but not necessarily linear relationships.26 In times of transition, institutions aim for re-­ distribution of power, opportunities and resources. In the process, they make decisions for people that will alter their lives and define the systems that will shape the collective future. Societies need to believe in the goals, values and processes that the institutions offer so that they support the changes that institutions represent. When power relations are being changed and redistributed, individuals are asked to take risks in support of the change. This is not a fully rational process partly because the variables and consequences are unknown. In such circumstances, trust proves crucial. Trust means that individuals agree to make themselves vulnerable to institutional decision-making. Marking the relationship between institutional trustworthiness and successful transitions, de Greiff has noted that “the most that transitional justice can do is give reasons to individuals to trust institutions.”27 Institutional trustworthiness is particularised. “Trust in one political institution is not necessarily generalised across other political institutions.”28 The fact that people trust a particular public institution does not mean that they trust government as a whole. Partly for this reason, transitional  Mayer, “An Integrative Model of Organizational Trust,” 717.  Stephen Wright, “Trust and Trustworthiness,” Philosophia 38, no. 3 (2010), 623. 25  Mayer, “An Integrative Model of Organizational Trust,” 718–719. 26  Horne, “Trust and Transitional Justice,” 26. 27  de Greiff, “Theorizing Transitional Justice,” 51. 28  Horne, “Building Trust and Democracy,” 27. 23 24

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justice theorists insist that transitional justice strategies cannot be traded off against each other; experience has demonstrated that the trustworthiness in all institutions must be cultivated as part of a holistic approach to transitional justice.29 The next section of this paper turns to the role of standing national courts in transitional justice praxis. It outlines four ways in which judicial trustworthiness, when present, might support successful transitions and help bolster transitional justice efforts.

The Importance of Judicial Institutional Trustworthiness in Transitional Justice While there is a risk of extending its definition beyond recognition, transitional justice extends beyond redressing past wrongs.30 It also recognises the importance of restoring relationships or creating new relationships based on a commitment to the equality dignity and worth of all peoples. It thus engages not only questions about providing victims remedy for past abuses but also equally important questions about how to prevent abuse in the future while simultaneously converting victims into citizens. Successful transitional justice practices help societies draw a line between a violent past and a more promising future by demonstrating the currency of desired norms31 and ensuring that coveted norms have “continued relevance across time.”32 What exactly is the relationship between transitional justice and the construction or reconstruction of coveted norms, especially the rule of law? Transitional justice scholars and practitioners have tended to focus on the ways in which transitional justice measures such as prosecutions, reparations and truth-telling help restore faith in the rule of law.33 But ­transitional justice scholars and practitioners have paid insufficient attention to the inverse question, namely, how can reforms of standing national courts that are not specifically involved in the adjudication of past human rights abuses support transitional justice? And, in particular, on what basis  de Greiff, “Theorizing Transitional Justice,” 38–39.  Joanna R. Quinn, “Whither The “Transition” of Transitional Justice,” Interdisciplinary Journal of Human Rights 8, no. 1 (2014–2015), 66. 31  de Greiff, “Theorizing Transitional Justice,” 38–39. 32  de Greiff, “Theorizing Transitional Justice,” 55. 33  Padraig McAuliffe, “Transitional Justice’s Impact on Rule of Law: Symbol or Substance?” in Research Handbook on Transitional Justice, ed. Cheryl Lawther, Luke Moffet, Dov Jacobs (Cheltenham: Edward Elgar Publishing, 2017), 77. 29 30

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might trustworthy national courts support transitional justice processes and augment their chances of taking hold? Pablo de Greiff’s holistic, value-based understanding of the meaning and function of transitional justice offers a fruitful lens through which to examine the role of national courts in helping nurture the pre-existing conditions for transitional justice. De Greiff argues that transitional justice measures will always be imperfect but their basic function is to demonstrate the currency of fundamental norms. [measures] that are weak in relation to the immensity of the task that they face are more likely to be interpreted as justice initiatives if they help ground a reasonable perception that their coordinated implementation is a multi-­ pronged effort to restore or establish anew the force of fundamental norms.34

Transitional justice turns victims into citizens by giving them “moral standing as individual human beings.”35 De Greiff’s normative theory of transitional justice provides a useful backdrop against which to consider the role of trustworthy national courts in transitional justice spaces. Trustworthy courts help set the normative conditions for successful transitions by connecting the promises of change inherent in the transitional moment itself with the longer-term promise of a new and different future. National courts play a key role in supporting transitional justice processes because they are a primary justice institution with the mandate and capacity to demonstrate the currency of fundamental norms in a sustained way. Through their decision-making, judges can help affirm that fundamental norms such as dignity, human rights, democracy, justice, fairness, equality and freedom have become institutionalised. They help set the normative conditions for successful transitions, promise non-­recurrence of past violence and affirm that the fundamental norms have become internalised in three ways. First, national courts remain after the reparations have been made, the truth-telling exercises completed and the ­prosecutions advanced. National courts can help demonstrate to those abused in the past that fundamental norms pursued through transitional justice mechanisms will remain current the day after these transitional justice mechanisms have run their course. Second, national court decisions speak to the everyday, adjudicating the stuff of daily existence such as  de Greiff, “Theorizing Transitional Justice,” 38–39.  de Greiff, “Theorizing Transitional Justice,” 41.

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labour and employment, family law, contracts, human rights, landlordtenant, taxation, banking and corporate regulations. These courts help ensure that fundamental norms run deep, proliferate beyond special courts and will be available in the adjudication of the multiplicity of issues that impact people’s lives. Finally, precisely because they are involved in day-today adjudication, national courts may directly engage more people living in transitional justice sites than special transitional justice processes. In this way, national courts can help ensure that fundamental norms have a broad impact, lending credence to the message that the future will look different than the past for more people. Trustworthy courts, thus, assume material and symbolic importance in drawing a line between the violent past and a promising future. Their decisions can give people hope that the laws and processes that relegated them to second citizen status, defiled their dignity and produced the human rights abuses have been relegated to the past. Through their decision-­ making, judges sitting in the national courts can help people believe that the new political order will respect their status “as rights bearers and citizens.”36 As polities seek to move away from an unjust and unfair past, judicial decision-making through ordinary courts can help demonstrate that state power is exercised for the collective benefit and not to entrench, rationalise or mask elite interests. Their importance extends beyond those whose claims they are adjudicating. Judicial decision-making touches not only on the hopes and fears of those who stand before them but resonates with all those who have lived with the uncertainty and pain of an unjust and unfair world. Moreover, trustworthy courts can help create socio-legal conditions for successful transitions by demonstrating the benefits of living in a society devoted to the rule of law and, ultimately, contributing to a culture of peace. When courts demonstrate themselves to be trustworthy, people are more inclined to use them to resolve disputes and also more inclined to accept their decision-making even if they disagree with the result.37 National courts shape citizen-to-citizen interactions. If individuals do not trust and hence refuse to use justice institutions to help settle disputes or claim their rights, societies can unravel as the consequences of institutional distrust cascade across society. The reluctance of individuals to use institutions to resolve problems has collective impacts.  de Greiff, “Transitional Justice and Development,” 23.  Tyler and Huo, “Trust in the Law”.

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In the context of distrust, violence and non-compliance can cascade. Individuals facing violence or non-compliance behaviour may resort in kind. If courts cannot or do not address these negative behaviours, those who witness or are impacted by them may question the state’s ability to keep them safe or treat them fairly. They may themselves then adopt non-­ compliance behaviours. Other individuals, faced with violence or injustices, may simply opt out of the system. They may not pursue their rights. Eventually, unresolved rights claims may fester or spiral into larger societal problems. For example, where laws against workplace harassment do not exist or are not enforced, already vulnerable groups can be socially marginalised and economically disempowered. The willingness of individuals to use institutions to resolve problems has collective impacts. Racialised individuals, for example, may not pursue discrimination claims because they do not trust the impartiality of courts and tribunals. Reluctance to use available institutions to correct injustices, in turn, deprives society of its collective ability to deter further discrimination through education, reparations or rehabilitation of wrong-doers. Wrong-doers then may act with impunity and a cycle of greater wrong-doing may be spawned which in turn generates greater distrust in government institutions and greater social divides. In extreme cases, social divides produce revolts. In the most extreme cases, revolts escalate in a broader social, political and economic breakdown. Trustworthy courts thus help create a culture of peace, demonstrate the benefits of a system built on the rule of law and ultimately create the socio-legal conditions for transitional justice. In addition to helping set the normative and socio-legal conditions for transitional justice measures, trustworthy courts can help create the political conditions for successful transitional justice strategies by acting as a mechanism to ensure the credibility of political actors. Successful transitions require trustworthy political leaders and institutions. Traditional transitional justice processes such as prosecutions, truth-telling and reparations must balance multiple political interests.38 Even the best-devised and implemented traditional justice procedures face significant barriers.39 Given the extent of human rights abuses, not everyone can be prosecuted. Where does one credibly draw the line? Whose pain matters ? In the same 38  Patricia Lundy and Mark McGovern, “Whose Justice? Rethinking Transitional Justice from the Bottom Up” Journal of Law and Society 35, no. 2 (May 2008), 270. 39  Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (New York: Cambridge University Press, 2004), 84.

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vein, truth-telling has to end somewhere at some point. That truth-telling can only ever be partial may spawn resentment rather than reconciliation. Reparations, for their part, are often symbolic gestures that cannot fully compensate for victims’ suffering. Where does one draw the line between symbolic gesture and insult? The answers to these questions are often made by political leaders and the extent to which people see these decisions as justice advancing turns in part on the extent to which people trust the political leaders who make them. Trustworthy courts shore up the trustworthiness of government leaders and institutions by helping shape the government-to-citizen relations. This is not because particularised trust in the judiciary is generalised across government, but because of the unique role that justice institutions play in government and governance. In societies where governments have abused their power and citizens have been treated unfairly, a trustworthy judiciary can help ensure that no one is above the law and that governments are accountable to the law. If individuals trust justice institutions and believe that their claims will be addressed fairly and efficiently, they are more likely to consent to broader institutional demands and regulations, including those relating to transitional justice, even if they do not necessarily agree with them.40 Trust in government can also be cultivated out of the conviction that judicial oversight ensures that the leviathan has been chained.41 Government commitments, including transitional justice commitments, can thus be seen as credible commitments.42 Finally, trustworthy courts help set the conditions for transitional justice because judges from the national courts might participate in transitional justice procedures and might help shape public attitudes towards these procedures. Teitel has observed that “supra-national rights institutions stand…aloof from the domestic politics of transitional justice.”43 But, they do not always stand apart. National and transnational processes sometimes overlap and domestic politics can shape the efficacy of supra-­ national processes. Domestic judges may, for example, be called upon to participate in prosecuting offenders before international bodies. Palestinian public servants, including judges, have prepared case files with the  Levi and Stoker, “Political Trust and Trustworthiness,” 491.  Cook, Hardin, and Levi, “Cooperation Without Trust,” 153. 42  Levi and Stoker, “Political Trust and Trustworthiness,” 491. 43  Ruti Teitel, “Transitional Justice and Judicial Activism—A Right to Accountability?” Cornell International Law Journal 48 (Winter 2015), 389. 40 41

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International Criminal Court, and were mandated with investigating possible breaches of international law by Hamas during the firing of locally made rockets into Israel by militias in Gaza. Holding Hamas accountable in international fora has proven controversial from a Palestinian perspective because it points to a double standard within the international community. Hamas had been designated a terrorist organisation by Western states which, as a result, imposed crippling sanctions on the people of Gaza.44 At the same time, Israel has yet to be held to account by the international community.45 Trustworthy judges who participate in international processes can help lend credibility to these international transitional justice processes in the eyes of local actors notwithstanding the fact that the international systems as a whole may appear biased.

The Future Is Built on Remnants of the Past: Judicial Education as an Ameliorating Factor Before national courts are harnessed to transitional justice efforts, they may themselves require reform to build their trustworthiness. National courts are often deeply implicated in massive human rights abuses. They may have helped rationalise the structural inequality that gave rise to the need for transitional justice in the first place. South African judges, for example, were the pillars of the apartheid regime. Or, national courts may have proven themselves unable to restrain executive or legislative power. Before the Palestinian Authority, Palestinian judges were appointed by Israel. They were formally part of the Israeli administrative scheme that governed Palestinians but lacked jurisdiction to oversee Israeli conduct and decision-making. The challenge, of course, is how to transform courts from systems of oppression into institutions of justice. Lustration, vetting and legislative reform, including constitutional drafting, are often advanced as the primary judicial reform vehicles in transitional justice sites. But, lustration and vetting can be controversial and have been altogether rejected in some

44  Norman G.  Finkelstein, Gaza: An Inquest Into Martyrdom (Oakland: University of California Press, 2018), 12. 45  Michael S. Lynk, “Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967,” UN A/73/45717 (October 22, 2018), https://www.ohchr.org/en/hrbodies/sp/countriesmandates/ps/pages/srpalestine.aspx.

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transitional justice sites.46 Even where they are adopted, lustration and vetting cannot, on their own, produce trustworthy institutions.47 Neither can legislative reforms, including constitutional reforms. Even if institutions are “re-peopled” and laws are reformed, courts may still not be ready to dispense justice or offer fair and equal decision-making. To understand the limits of lustration, vetting and legislative reforms, it is imperative to examine the nature of legal decision-making. Judges in any jurisdiction, transitional, democratic or oppressive, have to interpret words. Words, by their very nature, are indeterminate and must be interpreted. Law does not define itself. Even in the absence of constitutions and legislative reforms and even outside constitutional challenges, judges choose whether or not to engage and affirm fundamental norms when making decisions from the bench.48 They may face external pressures to produce a given result. Regardless, it is not always the words on the page that prevail. Justice is a product of judicial interpretation of texts and evidence. David Dyzenhaus argues that transitional justice problems represent nothing more than the “dramatic manifestations of problems faced by all stable societies.”49 Leaving aside the question of whether or not this statement is true relative to transitional justice as a field of inquiry and practice, it holds true relative to judges’ interpretive tasks. Though legal texts and precedents may constrain their decision-­making, judges still hold significant interpretive power. They choose which facts are material facts, what constitutes evidence, which interpretations to give to written texts, including constitutions, and which inferences to draw from facts. In addition to written texts, institutional forms, political contexts and legal cultures matter to the ways in which laws are interpreted and applied. Institutional cultures “permit, shape and foster good judgement and thereby support the identification of plausible ways of judging situations and feasible proposals for action are required if law and r­ egulation are to work well.”50 Judicial cultures help define the direction of legal  Horne, “Lustration, Transitional Justice,” 233.  Horne, Building Trust and Democracy. 48  Reem Bahdi, “Truth and Method in the Domestic Application of International Human Rights Law,” Canadian Journal of Law and Jurisprudence (2002), 255–279. 49  David Dyzenhaus, “Judicial Independence, Transitional Justice and the Rule of Law,” Otago Law Review 10 (2003), 347. 50  Onora O’Neill, “Accountable Institutions, Trustworthy Cultures,” Second Annual T.M.C.  Asser Lecture in The Hague (December 2016) https://www.asser.nl/about-theinstitute/asser-today/accountable-institutions-trustworthy-cultures/. 46 47

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rules. Consider, for example, the fact that the Syrian constitution under the Assad regime was arguably one of the most progressive constitutions in the world. The main problem lay not in the text but in its interpretation by the judiciary and its enforcement by the government.51 On the other hand, judges do not always need explicit texts to render rights-respecting decisions. In one of its first decisions during the transition away from legal apartheid, South Africa’s constitutional court used purposive interpretation to declare the death penalty unconstitutional even though the constitution itself did not specifically prohibit the death penalty and even though public opinion appeared to favour it.52 In jurisdictions around the world, not just transitional ones, human rights abuses are sometimes perpetrated because discriminatory legal cultures outlast discriminatory laws. Judges may work in a culture that presumes without justification that some groups share certain negative traits. Judges, in other words, harbour stereotypes about people. These stereotypes can be explicit or implicit. Judges who harbour stereotypes can be found in jurisdictions around the world, not just oppressive or transitional ones. For example, record numbers of indigenous children were removed from their homes and communities during “the Sixties Scoop” in Canada.53 Injustices continue to be inflicted on Aboriginal peoples in Canada as a result of enduring stereotypes and biases.54 In transitional sites, notwithstanding lustration, vetting and legislative reforms, some judges may not be fully committed to change. They may continue to harbour some form of bias that structurally disadvantages some groups and presupposes an ontological hierarchy between groups. Changing the identity of judges may bring some new perspective to the bench on some issues or constructed identities, while leaving others ­unaddressed. Inequality is not uni-dimensional. Appointing Black judges in post-apartheid South Africa, for example, did not address other structural inequalities such as gender or class. Even if newly appointed judges are committed to eradicating a range of biases from the law, they may not 51  Reem Bahdi, “Background Report on Women’s Access to Justice in the Middle East,” (Cairo: International Development Research Centre (IDRC)Women’s Rights and Citizenship (WRC) Program and the Middle East Regional Office (MERO), 2007), 43. 52  S v. Makwanyane and Another, South African Constitutional Court, June 6, 1995. 53  Truth and Reconciliation Commission of Canada, What We Have Learned (Ottawa: Truth and Reconciliation Commission of Canada, 2015), 40. 54  Melanie A. Morrison et al., “Old-fashioned and Modern Prejudice Toward Aboriginals in Canada” in The Psychology of Modern Prejudice, ed. Melanie A.  Morrison and Todd G. Morrison (Hauppauge, NY: Nova Science Publishers, Inc. 2008).

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have the professional skills or experience to help negate structural inequalities.55 They may, for example, lack the knowledge, experience or skills with a range of interpretive techniques that might be needed to address undesirable legal precedents and overcome past traditions, especially where legislative reforms are inadequate. In such circumstances, judicial education serves as an ameliorating factor that can help build institutional trustworthiness by changing legal cultures. Judicial education can be developed and implemented to maximise the chances that transitional justice measures, once implemented, may succeed. But, judicial education must be designed and delivered specifically to nurture institutional trustworthiness bearing in mind institutional history and the transitional context. The next section draws on the authors’ experiences developing a model for judicial education in Palestine to briefly describe what became known as “the Karamah model.” Developed jointly by a team that included the University of Windsor in Canada, Birzeit University in Palestine, senior Canadian judges and members of the Palestinian judiciary with financial support from the Government of Canada, the Karamah experience suggests that judicial trustworthiness can be nurtured even within the most complex political and institutional circumstances. At the same time, the Karamah model may not be appropriate for all contexts. Palestine represents a unique transitional site. Transition in this context involves ending the Israeli occupation of Palestinian land, people and resources. Transitional justice sites usually involve a move from one regime to another with the result that the old regime is defunct. In the Palestinian context, however, the transition involves the devolution of power and control over Palestinian land and lives from Israel, an occupying state, to a Palestinian Authority. Unlike many other transition sites, Israel remains in control of important aspects of Palestinian lives. This situation created opportunities and challenges for judicial education programming. On the one hand, judicial education was grounded in the deep-reaching and long-standing Palestinian desire for liberation from occupation. On the other hand, judicial education programming had to contend with ongoing Israeli occupation alongside the Palestinian Authority’s own institutional and political shortcomings.56 55  Cathi Albertyn and Elsje Bonthuys, “A Transformative Constitution and a Representative Judiciary” in Gender and the Judiciary in Africa: From Obscurity to Parity? ed. Gretchen Bauer and Josephine Dawuni, (Routledge: New York, 2016), 49–68. 56  Reem Bahdi and Mudar Kassis, “Decolonization, Dignity and Development Aid: A Judicial Education Experience in Palestine,” Third World Quarterly 37 (2016), 2010–2027.

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Building Institutional Trustworthiness Through Judicial Education: The Karamah/Palestine Model Developed between 2005 and 2010 at a time when the possibilities of peace and a Palestinian state, though dwindling, remained viable, Karamah adopted a value-based model of judicial education. While the precise contours of the Karamah model were developed over several years through trial and error, the Karamah team chose dignity as its overarching theme from the start. We reasoned that dignity would have resonance for members of the Palestinian judiciary since they, like other Palestinians, had endured the hardships and humiliations of Israeli occupation. In the context of peaceand state-building efforts, dignity stood as an antidote to humiliation. Karamah’s model of judicial education thus aimed to demonstrate the currency of dignity as a fundamental norm for Palestine. It presumed that justice was both an internal and external goal of Palestinian liberation. As the model developed, the Karamah team came to understand more deeply the ways in which the dignity concept could serve as a basis for transformative judicial education programming that would enhance judicial trustworthiness by highlighting the judiciary’s commitment to shared values, giving the judiciary a platform from which to express their commitment to serving the Palestinian people and enhancing the judiciary’s ability to live up to its commitments. In retrospect, we have also come to better understand that the Karamah team would have benefited significantly from transitional justice practices and principles. Since we were learning by doing, we did not always have the vocabulary to succinctly articulate our model. We now realise that we were developing a judicial education model to enhance institutional trustworthiness. Our inability to fully recognise this rather simple and perhaps even obvious framework while we were in the midst of the Karamah programme can be traced to our disciplinary shortcomings. It can also be traced to the fact that the rule of law and transitional justice initiatives remain generally isolated from each other.57 Moreover, transitional justice was never really part of the political discourse in Israel-Palestine and transitional justice processes and principles were conspicuously absent from peace-building and state-­ building in Palestine-Israel.58  Padraig McAuliffe, “Symbol or Substance?” 77.  Brendan Ciarán Browne, “Transitional Justice and The Case of Palestine” in Research Handbook on Transitional Justice, ed. Cheryl Lawther, Luke Moffett and Dov Jacobs (Cheltenham, UK and Northampton, MA, USA, 2017), 488–507. 57 58

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To the extent that transitional justice has concerned itself with judicial reform and education, transitional justice programming often shares a problematique with the rule of law programming. Both presume that change comes as a result of knowledge acquisition. Transitional justice scholars and practitioners have taken a relatively recent interest in judicial reform, typically under the rubric of “guarantees of non-recurrence,” but they tend to focus on technical training and knowledge acquisition. Even those who recognise that change is often a function of how judges see their role in society slip into a discussion of knowledge acquisition. It is sometimes presumed, for example, that training in international human rights law will result in judges adopting a new vision of the judicial office.59 Despite the established centrality of trust and trustworthiness to transitional justice, insufficient attention has been paid to these constructs in modelling judicial education as a transitional undertaking. Similarly, judicial education undertaken within the framework of the rule of law programming, particularly those programmes transported from reconciled societies, tends to treat judicial education as a capacitybuilding exercise which requires experts to provide technical training such as training in laws and statutory interpretation to judges who are deemed to hold insufficient knowledge about law and legal practice. Some programmes also address judicial attitudes towards vulnerable groups under the title “social context” education. The goal is usually to provide judges with new information and insights into the perspectives of individuals whose experiences are different from their own.60 This enhanced ­understanding will produce different judicial decisions. These programmes thus focus on enhancing judicial competence and presume that individual judges and, eventually, whole institutions will change as they gather new information. Judicial education programming in Palestine proved no exception. Most programmes focused on enhancing judicial competence in areas such as human rights or courtroom management. Competence remained an important aspect of Karamah’s model. As a legal principle, dignity gave 59  Rhodri Williams, “Judges as Peacebuilders: How Justice Sector Reform Can Support Prevention in Transitional Settings” International Legal Assistance Consortium (2018) h t t p : / / w w w. i l a c n e t . o r g / w p - c o n t e n t / u p l o a d s / 2 0 1 8 / 0 4 / I L A C - J u d g e s - a s Peacebuilders-11.44.54.pdf. 60  See, for example: Livingston Armytage, “Educating Judges—Where to From Here?” Journal of Dispute Resolution 25, no. 1 (2015), 1–7.

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judges a distinctly legal framework through which they could respond to the problems that they were asked to adjudicate on a day-to-day basis. Participating judges examined questions like: what circumstances give rise to dignity considerations and why? Where can the dignity principle be found in Palestinian law? Is comparative or international law relevant? If so, how? Having access to legal research and resources at both Birzeit University and Windsor Law, the Karamah team was well positioned to provide judges with research about human dignity. Indeed, Karamah institutionalised by research into its judicial education model by introducing the concept of judicial clerks to Palestine. Lawyers and legal researchers from Birzeit University were assigned to judicial educations to provide them with research and analysis upon request. The researchers wrote memos about dignity in judicial decision-making in comparative law for example. Canadian judges acted as judicial advisors and discussed issues such as interpretive techniques with their Palestinian colleagues. Building competence through education remained a central pillar of Karamah because competence represented the ability dimension of institutional trustworthiness. Without the ability to incorporate dignity into their decision-­making based on sound legal principles and techniques, participating judges would not have been able to demonstrate their trustworthiness. But, Karamah’s model went beyond competence. Human dignity was both an input and output of the Karamah model, which committed to treating the judges with dignity as well as supporting judges to make decisions in light of human dignity.

Karamah’s Pedagogy: Dignity as Threshold Concept In order to ask judges to think about the meaning of dignity to their work, the Karamah team had to ensure that it respected the dignity of the participating Palestinian judges. In particular, the Karamah model aimed to ensure that judicial education was both institutionally and pedagogically sound. To remain institutionally sound, Karamah’s model sought to respect the Palestinian judiciary’s institutional independence even though some of the funding came from a foreign government, the government of Canada. Accordingly, Karamah emphasised the development and delivery of judicial education by Palestinian judges for Palestinian judges. There were no foreign trainers. Instead, Palestinian judges engaged with their Canadian counterparts as professional colleagues participating in transnational judicial dialogues. The Palestinian judges were not provided with educational materials that might have been adapted from other contexts

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for use in Palestine. Instead, members of the Palestinian bench developed their own materials for themselves and their colleagues. They defined their educational priorities based on their professional experience and consultations with their colleagues. They created their own educational materials, tools and resources with the support of Karamah. Moreover, Karamah did not pick the judges with whom to work. Instead, sitting judges applied to the Palestinian High Judicial Council to become judicial educators. Once selected by the Council, judges worked in teams that included law professors, philosophers, pedagogues and legal researchers. The teams developed judicial education materials and supported the judges who delivered their own judicial education seminars for their colleagues. The teamwork model encouraged reflective practice and transformative learning. As part of the process of developing their own materials, the judges embarked on a process of inquiry and self-reflection that in turn perpetuated a learning threshold that cannot be replicated by models that presented judges with ready-made materials to study. Karamah consciously engaged adult education principles for transformative learning. Transformative learning is not an add-on. It is the essence of adult education. With this premise in mind, it becomes clear that the goal of adult education is implied by the nature of adult learning and communication: to help the individual become a more autonomous thinker by learning to negotiate his or her own values, meanings, and purposes rather than to uncritically act on those of others.61

One of the most senior Palestinian judges observed that developing their own materials gave Palestinian judges the opportunity for reflective practice. We had the time to comprehend and internalise things throughout the process. We were only asked one question—what is the link between the material developed and human dignity? We started to discuss those issues within the group and we found all the answers in the law itself. Everything in the training material can be discussed from a dignity perspective. This is a change of approach.62 61  Jack Mezirow, “Transformative Learning: Theory to Practice,” in Transformative Learning: Insights From Practice, ed. Patricia Cranton (San Francisco, California: JosseyBass, 1997), 11. 62  Judge No. 3, Interview with Karamah Staff, Ramallah, January 2013.

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Ultimately, the prevailing consumerist approach, which regards judges as the consumers of the final product rather than leaders in the agency of production, was avoided. Within the Karamah framework, dignity was understood as a threshold concept and not simply a legal principle that could be researched and applied in a strictly technical way. Threshold concepts transform the way individuals see and analyse the world around them by occasioning ontological and epistemological or conceptual shifts. Threshold concepts involve shifts in identity relative to a given role as well as an expanded or different approach to a given discipline.63 They can be difficult to grasp but, once grasped, threshold concepts fundamentally alter the way learners see the world. They are “troublesome” because they challenge orthodoxy or custom, but, once adopted, threshold concepts prove difficult to “unlearn” in part because they allow the integration of knowledge, realities and subjectivity into a more coherent system of being and doing.64 As a threshold concept, dignity gave participating judges a lens through which they could think about their relationship with the Palestinian people. When the judges spoke about dignity, they spoke about legal rules, texts, sources, precedents and doctrines. But, the judges spoke about dignity more holistically. In addition to regarding dignity as a legal principle, the judges also saw dignity as a concept that helped them define and articulate their role in society, their responsibilities in the context of political transition and their personal and political reasons for pursuing political transition. In short, the dignity concept gave participating judges the ­language with which to express their shared values with the Palestinian people and it gave them the professional tools to be able to demonstrate their benevolence.

Dignity as Integrity: Shared Political Values By identifying themselves as “the address for human dignity,” Palestinian judges affirmed that they shared deep political values with Palestinian society. Dignity has deep political resonance and broad intelligibility across Palestinian society. It has long encapsulated popular Palestinian political objectives; a life of dignity stood as an alternative to the humiliations and oppression of living under Israeli occupation. Israeli occupation had delegated the Palestinian  Ray Land, Jan H.  F. Meyer, and Caroline Baillie, “Editor’s Preface,” in Threshold Concepts and Transformational Learning (Rotterdam: Sense Publishers, 2010), ii. 64  Land, Meyer and Baillie, “Editor’s Preface,” v. 63

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people and their interests to a lesser status than the people and interests of Israel. Living under occupation, the Palestinian people had endured decades of inequality, oppression, injustices and rights violations. In response, Palestinians have routinely invoked the language of dignity to articulate their desire for freedom, equality and self-­determination. For example, dignity was invoked during the first intifada to describe “the contempt and arrogance” with which Israeli soldiers and officials treated Palestinians; it “seemed to be deliberately intended to humiliate them and undermine their dignity as human beings.”65 Similarly, dignity is also referenced in the Palestinian Declaration of Independence, which declares that the Palestinian state will protect the dignity of all within its jurisdiction. The State of Palestine shall be for Palestinians, wherever they may be, therein to develop their national and cultural identity and therein to enjoy full equality of rights. Their religious and political beliefs and human dignity shall therein be safeguarded under a democratic parliamentary system based on freedom of opinion and the freedom to form parties, on the heed of the majority for minority rights and the respect of minorities for majority decisions, on social justice and equality, and on non-discrimination in civil rights on ground of race, religion or colour or as between men and women, under a Constitution ensuring the rule of law and an independent judiciary and on the basis of true fidelity to the age-old spiritual and cultural heritage of Palestine with respect to mutual tolerance, coexistence and magnanimity among religions (emphasis added).66

Further, when in 1993, Israel and the Palestine Liberation Organization (PLO) entered into an agreement that is known as the Declaration of Principles (DOP), they publicly declared a mutual commitment to a formal peace process based on the promise of dignity. The two sides agreed to “recognize their mutual and legitimate political rights, and strive to live in peaceful coexistence and mutual dignity and security and achieve a just, lasting and comprehensive peace settlement and historic reconciliation.”67  The Committee on the Exercise of the Inalienable Rights of the Palestinian People, The Origins and Evolution of the Palestine Problem: 1917–1988, PART IV 1984–1988. (UNISPAL, 1990) https://unispal.un.org/DPA/DPR/unispal.nsf/0/57C45A3DD0D46B09802564 740045CC0A. 66  Palestinian Declaration of Independence (1988) Annex III to UN Document A/43/827 S/20278 1988 https://unispal.un.org/DPA/DPR/unispal.nsf/0/6EB54A389E2DA6C6 852560DE0070E392. 67  Declaration of Principles on Interim Self-Government Arrangements (September 13, 1993), doi: 10.1177/0967010694025001014. 65

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In addition to appealing to the Palestinian yearning for freedom from occupation, the dignity concept also held broader appeal based on its status as an international and regional norm. The concept was not new in international law and discourses. Adopted by the United Nations in 1948, the Universal Declaration of Human Rights, for example, declared that “all human beings are born free and equal in dignity and in rights” and dignity became widely recognised as a core international principle.68 As the Karamah team refined its judicial education model through learning by doing, the dignity concept was gaining increasing traction in comparative constitutional law.69 Dignity was also being increasingly invoked as part of reformist political platforms across the Middle East and culminated as a slogan across the Middle East as people rose up against their dictators demanding “bread, freedom, dignity.” “The Arab Spring,” as it was then known, erupted in the middle of the Karamah project. These revolts helped lend credibility and urgency to Palestinian demands for dignity.70 Karamah created a platform for the judiciary to join a broad spectrum of Palestinian society to discuss and affirm their common desire for ­dignity.71 A number of discrete dialogue events were held with various individuals and institutions involved in delivering justice. The Minister of Justice, for example, adopted dignity as a principle that would guide the Palestinian Reform and Development Plan.72 Civil society organisations referenced dignity in their advocacy and outreach. Lawyers held workshops to develop constitutional arguments based on dignity. A manual was prepared to support them.73 The Palestinian media was also introduced to the notion of dignity. Several workshops allowed the members of the media opportunities to reflect on techniques for covering judicial decisions

68  United Nations, The Universal Declaration of Human Rights (1948), https://www. un.org/en/universal-declaration-human-rights/. 69  Christopher McCrudden, “Human Dignity and Judicial Interpretation of Human Rights,” European Journal of Human Rights 19, no. 4 (2008), 655–724. 70  Asaad Alsaleh, Voices of the Arab Spring: Personal Stories from the Arab Revolutions (New York: Columbia University Press, 2015). 71  Kim Inkaster, Report of the End of Project Summative Evaluation of The Judicial Independence and Human Dignity Project in Palestine (Karamah) (Just Governance Group, 2013), 74. 72  Inkaster, Report of the End of Project, 74. 73  Sawsan Zahar and Hassan Jabareen, “Training Manual: Human Dignity in Judicial Practice, Theoretical and Case Studies,” (Ramallah: Jerusalem Legal Aid and Counselling Centre & Karamah, December, 2013).

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while respecting the independence of the judiciary.74 By speaking the language of dignity and demonstrating their commitment to delivering dignity to the Palestinian people through their judgements, the judiciary advanced judicial institutional trustworthiness by demonstrating their shared values with Palestinian society.

Dignity as Benevolence: Professional Identity The possibility of a Palestinian state, the creation of a Palestinian Authority and the development of a national Palestinian judiciary represented the possibility that institutionalised power would, for a change, be exercised in the interest of the Palestinian people rather than against them.75 Dignity offered the judges a lens through which they could explore and define their professional identities relative to long-standing national aspirations for freedom, equality, security and self-determination at the same time that they grappled with whether and how to invoke dignity as a legal principle to help resolve the concrete problems that faced them in their courtrooms. When they made a decision in a particular case, participating judges remained mindful that they were participating in the rejecting of occupation and the re-making of Palestine itself. One senior judge, for example, emphasised that Israeli occupation gave the Palestinian judiciary particular motivation to respect and protect the dignity of the Palestinian people. Building judicial capacity is part of building our state and we are honoured to be chosen for this mission. It is our duty to bring to our society strong and merciful judges, judges who are able to protect the dignity of Palestinian citizens. The Palestinian people have suffered significantly and their dignity has been abused continuously by an occupier that treats the Palestinian people as if they have no dignity and ignores or abuses Palestinian rights without mercy. In this context, we as judges should be the address for human dignity, through our practice at court and through our efforts in building the capacity of new judges. We should remember that we are the servant of the people, not their master. This is how Palestine should be, and this is how the Palestinian judiciary should be.76  Inkaster, Report of the End of Project, 74.  Bahdi and Kassis, “Decolonization, Dignity and Development Aid”. 76  Bahdi and Kassis, “Decolonization, Dignity and Development Aid”. 74 75

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One judge provided a particularly profound example which illustrates that changed judicial decision-making is not a technical exercise of learning legal rules but, more profoundly, an exercise in expressing national aspirations by modelling, in de Greiff’s words, “the force of fundamental norms.”77 Karamah encouraged me to think about my role as a judge in the way I manage the court session. I give witnesses enough space and time to provide their witness statement and to answer the questions. Last week, there was a court session regarding extending a detention. After hearing the lawyer, the person started to shout and he was very nervous. I was not obliged to listen. But I decided to hear him and provided him with water so that he could calm down and speak slowly. After listening to him, I decided to view the investigation file and review how evidence was obtained before issuing my decision. During the … program, we discussed the importance of listening to other opinions and perspectives. This has had a positive impact on my role as a judge.78

Judges also moved from a retribution model to a rehabilitation approach. Referencing the fact that the Palestinian Authority had indicated its consent to be bound by international laws, including The Convention on the Rights of the Child, the judges looked to the best interest of the child principle as an interpretive aid. This gave them the opportunity to adopt rehabilitation as the primary principle governing sentencing in the cases they decided. Because they were mandated with developing judicial education curricula for the rest of the judiciary, participating Karamah judges also reinforced the best interest of the child principle in the juvenile justice education materials that they developed for their colleagues. One judge explained the impact of the rehabilitation approach on judicial decision-making. When we issue a decision in a juvenile case, my colleagues and I now try to take into consideration that there are not sufficient rehabilitation centres appropriate for young offenders, so sometimes, in minor cases, the juvenile is released. Usually I would write in my judgment that I want to give him the opportunity to come back to normal life outside prison.  de Greiff, “Theorizing Transitional Justice,” 38–39.  Judge No. 2, Interview with Karamah Staff, Ramallah, January 2013.

77 78

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For example, I recently heard a case of a juvenile who was involved in drugs. I realised that imprisoning him would bring him to the criminal circle. In fact, his father was at the same prison, he was imprisoned for the same case, so I decided to send the juvenile home where he would have a chance at rehabilitation. Sometimes when I recite my decision at court, I recite it with much pain, because I know that the offender is often a victim too.79

Judges emphasised that their willingness to treat people with dignity had normative and instrumental justifications. It not only recognised the value and worth of the individual being judged but also helped produce better social and political relations. As one judge put it, Looking at the human side of a case and looking at rehabilitation rather than punishment when dealing with juveniles helps enhance justice. When the juvenile himself recognises that the aim of the decision is rehabilitation and not punishment for the sake of punishment, he will start to look at things differently himself. He will start to appreciate the value of human dignity and justice in society.80

Reiterating the importance of looking at the “human side” of cases, another judge emphasised that changes came when judges began to envision their role differently. He and his colleagues began to see themselves as transitional actors. They understood their power as part of the promise of a new Palestinian future and they expressed their determination to work for the betterment of Palestine and Palestinians.

Sustainability of Judicial Education Even in the complicated Palestinian context, judges adopted the dignity principle to advance the wellbeing of the Palestinian people.81 Karamah was internally and externally evaluated over several months in early 2013. The evaluations included interviews with 23 of 36 sitting judges who participated in the Palestinian intensive training programme along with the Director of the Palestinian Judicial Institute and former Chairs of the High Judicial Council’s Judicial Education Department. The evaluations  Judge No. 1, Interview with Karamah Staff, Ramallah, January 2013.  Bahdi and Kassis, “Decolonization, Dignity and Development Aid”. 81  Inkaster, Report of the End of Project, 74. 79 80

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confirmed that judicial education designed around dignity can help transform judicial decision-making. But the Karamah experience also reinforced that judicial education programming alone cannot substitute for transitional justice measures. While donors have provided significant funding for Palestinian judicial education and other Palestinian reforms since the Declaration of Principles was signed approximately 20 years ago, donors have failed to insist on a holistic transitional justice programme to help end one of the most intractable conflicts in modern history. Increases in donor funding to Palestinians have coincided with growing despair in Palestine. 82 Rather than apply transitional justice theories and practice to Israel and Palestine, donors have instead maintained that the parties negotiate the terms of peace. Ultimately, peace and reform efforts have broken down and the foundation of the Palestinian judiciary has shown significant cracks.83 The ability of the judiciary to deliver justice remains compromised by Israeli occupation and internal interferences from the Palestinian Authority which has recently restructured the courts to favour executive interferences and political control. The colonial condition has become further entrenched in Palestine and Palestinians seem further away from a life of dignity now than when the Declaration of Principles was first negotiated. Gaza, for example, has been declared uninhabitable.84 Against this context, it sometimes seems futile, if not absurd, to reflect on a model of judicial education that has not been fully sustained and that was forged in more promising times. However, the history of transitional justice has shown that experience remains instructive.85 If the international community eventually comes to see the wisdom of insisting on fulsome 82  Jeremy Wildeman, Donor Aid Effectiveness and Do No Harm in the Occupied Palestinian Territory: An Oral and Documentary Analysis of Western Donor Perceptions of Development and Peacebuilding in their Palestinian Aid Programming, 2010–2016, (Aid Watch Palestine, 2018). 83  Al-Haq, “Transparency in Action: The Unlawful Path to Lifting Parliamentary Immunity and Undermining the Independence of the Judiciary” (December 21 2016) http://www. alhaq.org/advocacy/topics/palestinian-violations/1091-transparency-in-action-theunlawful-path-to-lifting-parliamentary-immunity-and-undermining-the-independence-ofthe-judiciary. 84  United Nations, “United Nations Country Team in the Occupied Palestinian. Gaza Ten Years Later July 2017,” https://unsco.unmissions.org/sites/default/files/gaza_10_years_ later_-_11_july_2017.pdf. 85  John Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge: Cambridge University Press, 2004), 1.

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transitional justice for Israel and Palestine, or, if the parties somehow come to this conclusion on their own, future efforts may benefit from reflections on past experiences. Even if transitional justice is not pursued in Israel and Palestine, the sharing of past experiences remains important. Those legal scholars, educators, activists, reformers and/or allies who participate in state-building, peace processes or reform efforts more generally eventually, willingly or not, become historians who bear the responsibility of chronicling those possibilities that were transformed into opportunities and those that were lost to oblivion. This chronicling itself constitutes a form of accountability.

Conclusion Trustworthy domestic courts can help create the pre-existing conditions to enhance transitional justice strategies that address past human rights abuses and nurture reconciliation following periods of sustained violence. Trustworthy courts help set the normative conditions for successful transitions; they can affirm that fundamental norms such as dignity, human rights, democracy, justice, fairness, equality and freedom have become institutionalised. Their decisions can give people hope that the laws and processes that relegated them to second citizen status, defiled their dignity and produced the human rights abuses have been relegated to the past. Through their decision-making, judges sitting in national courts can help people believe that the new political order will respect their status “as rights bearers and citizens.”86 Trustworthy courts can help create socio-­ legal conditions for successful transitions by demonstrating the benefits of living in a society devoted to the rule of law. Before they can take on the role demanded of them in transitional spaces, national judiciaries often require reform to demonstrate their trustworthiness. The Karamah model of judicial education developed in the Palestinian context can ameliorate judicial institutional trustworthiness. Designed around the concept of human dignity, Karamah gave Palestinian judges a platform through which they invoked dignity as a legal principle, a statement of shared political values and an aspect of their professional identity. In the process, they nurtured the trustworthiness of Palestinian judicial institutions and demonstrated that carefully crafted judicial education can ameliorate institutional trustworthiness. But the  de Greiff, “Transitional Justice and Development,” 23.

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Palestinian experience also suggests that judicial reform and judicial education must be undertaken as part of a holistic transitional justice programme. Judicial reform and judicial education cannot substitute for transitional justice.

Bibliography Al-Haq. “Transparency in Action: The Unlawful Path to Lifting Parliamentary Immunity and Undermining the Independence of the Judiciary.” December 21 2016. http://www.alhaq.org/advocacy/topics/palestinian-violations/1091transparency-in-action-the-unlawful-path-to-lifting-parliamentary-immunityand-undermining-the-independence-of-the-judiciary. Albertyn, Cathi and Elsje Bonthuys. “A Transformative Constitution and a Representative Judiciary.” In Gender and the Judiciary in Africa: From Obscurity to Parity? edited by Gretchen Bauer and Josephine Dawuni. New York: Routledge, 2016. Alsaleh, Asaad. Voices of the Arab Spring: Personal Stories from the Arab Revolutions. New York: Columbia University Press, 2015. Armytage, Livingston. “Educating Judges—Where to From Here?” Journal of Dispute Resolution 25, no. 1 (2015): 1–7. Bahdi, Reem. “Truth and Method in the Domestic Application of International Human Rights Law.” Canadian Journal of Law and Jurisprudence (2002): 255–279. Bahdi, Reem. Background Report on Women’s Access to Justice in the Middle East. Cairo: International Development Research Centre (IDRC)Women’s Rights and Citizenship (WRC) Program and the Middle East Regional Office (MERO). 2007. Bahdi, Reem and Mudar Kassis. “Decolonization, Dignity and Development Aid: A Judicial Education Experience in Palestine.” Third World Quarterly 37 (2016): 2010–2027. Beugelsdijk, Sjoerd, Henri L.F. de Groot, and Anton B.T.M. van Schaik. “Trust and Economic Growth: A Robustness Analysis.” Oxford Economic Papers 56, no. 1 (2004). 118–134. Browne, Brendan Ciarán. “Transitional Justice and The Case of Palestine.” In Research Handbook on Transitional Justice, edited by Cheryl Lawther, Luke Moffett and Dov Jacobs. Cheltenham, UK and Northampton, MA, USA: Edward Elgar Publishing, 2017. The Committee on the Exercise of the Inalienable Rights of the Palestinian People. The Origins and Evolution of the Palestine Problem: 1917–1988. PART IV 1984–1988. (UNISPAL, 1990). Accessed December 21, 2018, https://unispal.un.org/DPA/DPR/unispal.nsf/0/57C45A3DD0D46B0980254740045 CC0A. June 30.

8  INSTITUTIONAL TRUSTWORTHINESS, TRANSFORMATIVE JUDICIAL… 

213

Cook, Karen S., Russell Hardin, and Margaret Levi. Cooperation Without Trust? New York: The Russell Sage Foundation, 2005. de Greiff, Pablo. “Transitional Justice and Development.” In International Development: Ideas, Experience, and Prospects, edited by Bruce Currie-Alder, Ravi Kanbur, David M. Malone, and Rohinton Medhora. New York: Oxford University Press, 2014. de Greiff, Pablo. “Theorizing Transitional Justice.” Nomos: American Society for Political and Legal Philosophy 51 (2012): 31–77. “Declaration of Principles on Interim Self-Government Arrangements.” Security Dialogue 25, no. 1 (March 1994):119–123. Dyzenhaus, David. “Judicial Independence, Transitional Justice and the Rule of Law.” Otago Law Review 10 (2003): 345–372. Easton, David. “A Re-Assessment of the Concept of Political Support.” British Journal of Political Science 5, no. 4 (1975): 435–457. Elster, John. Closing the Books: Transitional Justice in Historical Perspective. New York: Cambridge University Press, 2004. Finkelstein, Norman G. Gaza: An Inquest Into Martyrdom. Oakland: University of California Press, 2018. Horne, Cynthia M. Building Trust and Democracy: Transitional Justice in Post-­ Communist Countries. Oxford: Oxford University Press, 2017. Horne, Cynthia M. “Lustration, Transitional Justice, and Social Trust in Post-­ Communist Countries: Repairing or Wresting the Ties that Bind?” Europe-Asia Studies 66, no. 2 (2014): 225–254. Horne, Cynthia. “Trust and Transitional Justice.” In Encyclopedia of Transitional Justice, edited by Lavinia Stan and Nadya Nedelsky. New  York: Cambridge University Press, 2012. 1–13. https://www.academia.edu/38628876/ Trust_and_Transitional_Justice. Inkaster, Kim. Report of the End of Project Summative Evaluation of The Judicial Independence and Human Dignity Project in Palestine (Karamah). Just Governance Group, 2013. Land, Ray, Jan H. F. Meyer, and Caroline Baillie. “Editor’s Preface.” In Threshold Concepts And Transformational Learning, edited by Ray Land, Jan H.F. Meyer and Caroline Baillie. Rotterdam: Sense Publishers, 2010. Levi, Margaret. “A State of Trust.” In Trust and Governance, edited by Valerie Braithwaite and Margaret Levi. New York: The Russell Sage Foundation, 2003. Levi, Margaret, and Laura Stoker. “Political Trust and Trustworthiness.” Annual Review of Political Science 3 no. 1 (2000): 475–507. Lundy, Patricia and Mark McGovern. “Whose Justice? Rethinking Transitional Justice from the Bottom Up” Journal of Law and Society 35 no. 2 (9 May 2008): 265–292.

214 

R. BAHDI AND M. KASSIS

Lynk, Michael S. “Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967” (October 22, 2018) UNA/73/45717 https://www.ohchr.org/en/hrbodies/sp/countriesmandates/ps/pages/srpalestine.asx. Mayer, Roger C.  James H.  Davis, and F.  David Schoorman. “An Integrative Model of Organizational Trust.” Academy of Management Review 20, no. 3 (1995): 709–734. McAuliffe, Padraig. “Transitional Justice’s Impact on Rule of Law: Symbol or Substance?” In Research Handbook on Transitional Justice, edited by Cheryl Lawther, Luke Moffet, and Dov Jacobs. Cheltenham: Edward Elgar Publishing, 2017. McMurphy, Suzanne. “Trust, Distrust, and Trustworthiness in Argumentation: Virtues and Fallacies.” Paper presented at the Ontario Society for the Study of Argumentation Conference. Windsor, Canada. May, 2013. https://pdfs. semanticscholar.org/ffdd/8dd29f4a20ad4eb4410dbffcb4451c414990.pdf. McCrudden, Christopher. “Human Dignity and Judicial Interpretation of Human Rights.” European Journal of Human Rights 19, no. 4 (2008): 655–724. Mezirow, Jack. “Transformative Learning: Theory to Practice.” In Transformative Learning: Insights From Practice, edited by Patricia Cranton. San Francisco, California: Jossey-Bass, 1997. Morrison, Melanie A, Todd G. Morrison, Rebecca L. Harriman and Lisa M. Jewell. “Old-fashioned and Modern Prejudice Toward Aboriginals in Canada.” In The Psychology of Modern Prejudice, edited by Melanie A.  Morrison and Todd G. Morrison. Hauppauge, NY: Nova Science Publishers, Inc. 2008. North, Douglass C. “Institutions.” The Journal of Economic Perspectives 5, no. 1 (1991): 97–112. Offe, Clause. “How Can We Trust Our Fellow Citizens?” In Democracy and Trust, edited by Mark Warren. Cambridge: Cambridge University Press, 1999. O’Neill, Onara. “Accountable Institutions, Trustworthy Cultures.” Second Annual T.M.C.  Asser Lecture in The Hague (December 2016). https:// www.asser.nl/about-the-institute/asser-today/accountable-institutionstrustworthy-cultures/. Palestinian Declaration of Independence (1988) Annex III to UN Document A/43/827 S/202781988. https://unispal.un.org/DPA/DPR/unispal.nsf/0 /6EB54A389E2DA6C6852560DE000E392. Quinn, Joanna R. “Whither The “Transition” of Transitional Justice.” Interdisciplinary Journal of Human Rights 8, no. 1 (2014–2015): 63–80. Rouhana, Houda. 2013. “Interview with Palestinian Judges Participating in Karamah.” Ramallah. Rousseau, Denise M., Sim B. Sitkin, Ronald S. Burt, and Colin Camerer. “Not So Different After All: A Cross-Discipline View of Trust.” Academy of Management Review 23, no. 2 (1998): 393–404.

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S v. Makwanyane and Another, South African Constitutional Court. June 6, 1995. Sriram, Chandra L., Olga Martin-Ortega, and Joanna Herman. Evaluating and Comparing Strategies of Peacebuilding and Transitional Justice. JAD-PbP Working Paper Series No. 1 (May 2009): 1–62. Accessed https://www.researchgate.net/ publication/228914875_Evaluating_and_comparing_strategies_of_peacebuilding_and_transitional_justice. Teitel, Ruti. “Transitional Justice and Judicial Activism— A Right to Accountability?” Cornell International Law Journal 48 (Winter 2015): 385–422. Truth and Reconciliation Commission of Canada. What We Have Learned. Ottawa: Truth and Reconciliation Commission of Canada, 2015. Tyler, Tom R., and Huo J Yuen, Trust in the Law: Encouraging Public Cooperation with the Police and Courts. New York: The Russell Sage Foundation, 2002. United Nations. The Universal Declaration of Human Rights. 1948. Accessed https://www.un.org/en/universal-declaration-human-rights/. United Nations. “United Nations Country Team in the Occupied Palestinian. Gaza Ten Years Later July 2017,” https://unsco.unmissions.org/sites/ default/files/gaza_10_years_later_-_11_july_2017.pdf. Wildeman, Jeremy. Donor Aid Effectiveness and Do No Harm in the Occupied Palestinian Territory: An Oral and Documentary Analysis of Western Donor Perceptions of Development and Peacebuilding in their Palestinian Aid Programming, 2010–2016. (Aid Watch Palestine, 2018). http://www.alhaq. org/advocacy/topics/palestinian-violations/1091-transparency-in-actionthe-unlawful-path-to-lifting-parliamentary-immunity-and-undermining-theindependence-of-the-judiciary. Williams, Rhodri. “Judges as Peacebuilders: How Justice Sector Reform Can Support Prevention in Transitional Settings.” International Legal Assistance Consortium (2018). http://www.ilacnet.org/wp-content/uploads/2018/04/ ILAC-Judges-as-Peacebuilders-11.44.54.pdf. Zahar, Sawsan and Hassan Jabareen. Training Manual: Human Dignity in Judicial Practice. Theoretical and Case Studies Ramallah: Jerusalem Legal Aid and Human Rights Center & Karamah, December, 2013.

Interviews

by

Houda Rouhana (Karamah staff

member)

Judge No. 1. Interview with Karamah Staff. Ramallah. January 2013. Judge No. 2. Interview with Karamah Staff. Ramallah. January 2013. Judge No. 3. Interview with Karamah Staff. Ramallah. January 2013.

CHAPTER 9

Moving Forward: The Possibilities That Obtain from Ameliorating the Context to Create Conditions for Success Samar El-Masri, Tammy Lambert, and Joanna R. Quinn

Any transitional justice approach taken after conflict or atrocity ought to not only take into account the specificities of the case at hand but also recognise the importance of the stage that precedes the launch of any formal transitional justice process. This initial stage is important for two reasons: First, it is important to examine the existing transitional context, since that context can impact the process, positively or negatively. Indeed, the argument advanced in this volume is that context matters in a way that the field of transitional justice has not especially dealt with to

S. El-Masri (*) The University of Western Ontario, London, ON, Canada Dalhousie University, Halifax, NS, Canada T. Lambert • J. R. Quinn The University of Western Ontario, London, ON, Canada e-mail: [email protected]; [email protected] © The Author(s) 2020 S. El-Masri et al. (eds.), Transitional Justice in Comparative Perspective, Memory Politics and Transitional Justice, https://doi.org/10.1007/978-3-030-34917-2_9

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this point: the possibility of engaging with and changing the pre-existing context may enable transitional justice mechanisms to be more effective than they otherwise might. While transitional justice success or failure cannot be attributed to context alone, context has been recognised as a significant factor in the transitional justice operation. However, if the context can be ameliorated, the structure and collective spirit of the society are also likely to change, supporting transitional justice to work even better. For that to happen, work needs to be done to transform both the attitudes and beliefs of the population, as well as the existing institutions, well before transitional justice is ever implemented. This volume explores the conditions that are conducive to more successful transitional justice and efforts to ameliorate those conditions. As such, questions of sequencing are very much at the heart of the argument that is advanced. First, each of the chapters seeks to identify those factors that can modify, jump-start, or reinforce conditions for success. Second, each of the ameliorating factors that are identified seems likely to vary from one case to another and from one condition to the next. This highlights questions about what type of mechanism might be implemented and at what point any particular mechanism should be established in particular cases. For example, if prosecutions are preferred as a transitional justice tool, then how could they be preceded by legal reform, judicial reform, and education in places where national courts are partial, dependent, and untrustworthy? If truth commissions become the tool of choice then how could thin sympathy, as a basis of recognition, be created or jump-started at an earlier stage? And, what conditions of democratic uncertainty could be created so as to nurture trust in the truth commission as an institution, and so on? Each chapter in this volume considers different forms and mechanisms of transitional justice. Each also highlights the significance of conditions and factors that are seen as potentially “game-changing” for transitional justice success in a given country. In some cases, the authors reach their findings by exploring the success of a certain initiative, like that of the Karamah project outlined by Bahdi and Kassis in the case of Palestine. Others extract lessons from a failed case. As Freedman explains in Chap. 6, the “lack of success helps identify what ameliorating factors might have been relevant, what pieces in the logic of peace-making might have made a difference had they been there.” It is based on these findings that this volume suggests that there are things that can be done before any such process is begun, both to change the “hearts and minds” of the population and to change the institutions themselves. These ameliorating efforts may both make the population more receptive to the

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transitional justice process and produce more optimal institutional conditions that will improve the operation of those processes. There is no magic formula that works in every context, and the different cases that are explored in this volume by no means tell the entire story, nor do they represent all of the important conditions that should be taken into account before moving forward. Still, the authors suggest that particular factors seem to make—or could have made—a difference in the various cases presented here. Each of these is explored further below.

Ameliorating Factors As the previous section illustrated, some contexts may facilitate and increase the chances of transitional justice success. But others present a major hurdle. If transitional justice processes are launched without first working to change the challenges of context that exists post-conflict or repression, the transitional justice process itself may be jeopardised. While there may, in fact, be many ways that such pre-existing conditions can be improved, this volume pinpoints some specific ameliorating factors: sequencing, judicial education and reform, the language used in peace agreements and the law, disarmament and microcredits, and other economic dimensions, democratic uncertainty and the development of democratic institutions, and the changing of hearts and minds. This kind of change can take place at two interrelated levels: at the attitudinal level, such changes may make it possible to make over the values and social codes that are prevalent within a society, taking away many of the beliefs that stand as impediments to any real process of transformation. At the institutional level, these changes may put in place a series of modifications to enhance the capacity of a particular system, and reform the policies or structures that hamper or block successful transitional justice. Taken together, these ameliorating efforts have the potential to radically shift the possibilities for success.

Attitudinal Change Changing Hearts and Minds The state of social engagement is affected differently depending on the intensity and the longevity of a civil war as well as the level and the target of repression committed by a regime. In other words, the level of distrust, hatred, and dehumanisation in a violent conflict like the Palestinian-Israeli

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one is expected to be higher than that in Cyprus, for example.1 By the same token, the social division may not be prevalent in a regime that represses all opposition, in contrast to one that targets a specific sect or minority. Each case needs a specific kind of treatment. Quinn warns that truth commissions and other mechanisms of transitional justice are much less likely to deliver justice to victims, and bolster reconciliation and peace, if they are not preceded by the implementation of various strategies and projects to create and grow thin sympathy. She argues that conditions can be ameliorated by educating the population about the past, to build a level of understanding about what has taken place so that there is a common basis of at least basic facts about the past. The Colombian referendum on the peace agreement, discussed by Suárez and Lizama-Mué in Chap. 5, provides a sound example of why peace agreements—and by extension also transitional justice processes—can veer off course if that basic understanding does not first exist. In that case, people from unaffected regions of the country scuttled the peace process that meant so much to those who had been affected simply because they failed to appreciate what the conflict had done in those regions. Quinn argues that this kind of understanding can be brought about through everyday activities, or through coordinated programming including local film festivals, community-level memory dialogues, curriculum development, regional and national lectures and roundtables, a national conflict-­mapping exercise, cross-cultural prayer meetings or cultural celebrations among others. El-Masri talks about the attitudinal part of judicial reform, by focusing on the importance of introducing initiatives that support efforts to raise awareness about the necessity of judicial independence and impartiality. She also highlights the importance of the work that civil society organisations do to monitor the judicial process, and the need to support their efforts. Democratic Uncertainty States that have experienced failed democratic initiatives are often referred to in the democratisation literature as “failed” or “fragile” states. But the successful development of democracy is an ameliorating factor that may deeply impact the transitional justice process. The belief in the state of a country’s democracy is important for two reasons: first, liberal democratic values tend 1  International Crisis Group, “Can Gas Save Cyprus? The Long-Term Cost of Frozen Conflicts,” accessed 8 August 2019; https://www.crisisgroup.org/europe-central-asia/ western-europemediterranean/cyprus/can-gas-save-cyprus-long-term-cost-frozen-conflicts.

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to reflect a commitment to liberty, freedom, and human rights, and often beget social goods like the provision of justice to victims, facilitating an exit from authoritarianism, and the shoring up of fragile democracies.2 Arthur argues that these very “understandings were crucial to structuring the initial conceptual boundaries of the field” of transitional justice.3 Second, democratic regime transitions affect the “substantive ‘thickness’”4 of transitional justice institutions as well as other institutions of the state, which is an important predictor of the kind of recognition of these kinds of rights and justice. In Chap. 3, Ferguson argues that democratic uncertainty can act to facilitate a society’s understanding of the potential for a mutually reinforcing relationship between successful transitional justice and enduring democratic transitions. That is, when transitions to democracy themselves are successful, there is a corresponding effect that strengthens the efficacy and the impact of the transitional justice process, along with economic development and performance, institutional configuration, civil-military relations, and international constraints. Ferguson notes that while democratisation and transitional justice face the same kinds of impediments, successful democratic transitions both increase trust in the institutions of the state and strengthen those same institutions. This effect is demonstrated throughout this volume. Bahdi and Kassis, El-Masri, Freedman, and Kersten demonstrate, for example, that the absence of trust in state institutions undermines and erodes public trust in the broader justice process. This is important, because, as Ferguson demonstrates, the public’s perception of the level of democratic uncertainty is directly proportional to their expectations and tolerance for the new regime and the transitional justice processes they promulgate.

Institutional Change The Language Used in Peace Agreements and the Law Itself Peace agreements or treaties often accompany transitions. The way these agreements are drafted and applied matters. For this reason, the process of drafting peace agreements and decisions about their composition can be 2  Paige Arthur, “How ‘Transitions’ Re-shaped Human Rights: A Conceptual History of Transitional Justice,” Human Rights Quarterly 31, no. 2 (2009), 355. 3  Arthur, “How ‘Transitions’ Re-shaped Human Rights,” 326. 4  Jack Donnelly, Universal Human Rights in Theory and Practice, 2nd ed. (Ithaca: Cornell University Press, 2003), 47.

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seen as ameliorating factors to the transitional justice process as well. Influencing elements might include, for example, considerations of language, a fair compromise, necessary reforms, or the specification of certain transitional justice mechanisms. Suárez and Lizama-Mué outline the clear importance of how peace agreements are drafted on the transitional justice process. In particular, they argue that the particular choice of language and the labelling of specific aspects are crucial for the success of the agreement in its implementation. For example, they argue that “the language of victims” was specifically used in Colombia’s Peace Agreement, and explore the role of artificial intelligence as a tool to monitor the language of peace agreements in general. Further, the drafting of the laws or the statutes that shape the formal tools of transitional justice is of critical importance. After all, these very laws determine the mandate, jurisdiction, and objectives of transitional justice mechanisms. Amnesties are no exception. In keeping with the literature on amnesties exemplified by Mallinder and Freedman,5 for example, El-Masri points out that amnesties can still be useful in the context of transitional justice, but that special attention should be given to the laws that shape their method and procedure. The amnesty law can act as an ameliorating factor if it is balanced—that is, if a general pardon is accompanied by some sort of accountability measure. With regards to amnesties, the law should exclude jus cogens crimes, include measures to demilitarise the warring factions, allow for prosecutions in cases of recidivism, and finally incorporate measures to bring some sort of justice to the victims. Judicial Education and Reform Judicial education and reform are central ameliorating factors that can come before the transitional justice process. Counter to some of the transitional justice literature that argues that transitional justice processes themselves strengthen the judicial process,6 this volume argues that while 5  Mark Freeman, Necessary Evils: Amnesties and the Search for Justice (Cambridge: Cambridge University Press, 2009); and Louise Mallinder, Amnesties and Inclusive Political Settlements, PA-X Report: Transitional Justice Series (Edinburgh: Global Justice Academy, University of Edinburgh, 2018). 6  See, for example, Muna B. Ndulo and Roger Duthie, Research Brief: The Role of Judicial Reform in Development and Transitional Justice, Research Unit (New York: International Center for Transitional Justice, July 2009).

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it may be true that they reinforce such institutions, it is critical that the judicial system and people’s access to it to be improved before transitional justice mechanisms are established. In this regard, it is necessary to modify, restructure, equip, safeguard, and rebuild national courts that will then undertake the important job of prosecuting offenders, reinforcing the rule of law, re-establishing confidence in the government, and boosting public trust. Kersten points out that as long as judicial incapacity is prevalent in The Gambia, complex cases that involve international crimes are unlikely to be appropriately prosecuted. Thus, various ameliorating factors such as “training courses, the employment of capable staff willing to dedicate careers to the public service, and the training of investigators, prosecutors, and judges” are needed to address this problem. El-Masri makes a similar argument about Lebanon: the dependence and the partiality of the national courts, as well as their deep politicisation and selective adjudication, bolstered the role of the elite in the communities and rendered the judicial process irrelevant in many cases. In this case, El-Masri thinks that legislative reform may also be in order, since the judicial reforms that are needed in this case require a change in the laws that determine the relationship between the executive and the judiciary branch as well as those that enhance the judges’ job security, increase their salaries, and ramp up penalisation for corruption. Bahdi and Kassis also advise transitional justice practitioners not to only focus on how prosecutions, reparations, and truth commissions restore faith in the rule of law, but to go beyond that and ask how reforming national courts and building their trustworthiness support transitional justice. Although they acknowledge that lustration, vetting, and legislative reform may have a positive impact in some cases, they are not sufficient to dispense justice or provide fair trials free from discrimination. For this reason, judicial education, specifically education that fosters institutional trustworthiness, is identified as a key ameliorating factor by Bahdi and Kassis. But transitional justice practitioners should be careful here not to standardise these programmes and instead search for themes that may exert the most influence in the case at hand. The judicial education model that was developed by a non-governmental Palestinian-Canadian effort used Karamah (dignity in Arabic) as the central theme. According to Bahdi and Kassis, the model was successful to an extent because it brought together political, professional and pedagogical components that resonated with members of the Palestinian judiciary.

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Economic Dimensions: Assets, Income, Trade The economic situation of ex-combatants in each transitional context is different and, as such, requires a tailored economic response to address the challenges each case faces and help boost the economy. Yet if work to remediate the economic situation of those who have a few other economic prospects outside of the conflict economy is carefully undertaken before a transitional justice process is begun, it is likely to face fewer obstacles and meet with greater success. Various mechanisms and strategies can be undertaken in this regard. Kersten calls for attention to be paid to an under-explored subject, the recovering and repatriating the assets of previous regimes. He argues that the repatriating of assets could have an ameliorating effect on the process for four reasons: this endeavour could provide further evidence to those who still support the previous regime that it was corrupt and criminal; it could make it harder for leaders of the previous regime to return; it could bolster people’s confidence in this transitional justice process if the funds from the liquidation of assets are invested in projects that improve daily lives; and finally, liquidating these assets could provide funds to finance eventual transitional justice efforts themselves. Prosecutions are expensive; so are reparations. Thus, these funds may be used to compensate victims and tie the “illegally accumulated wealth directly to repairing and restoring the lives of his regime’s victims,” according to Kersten in Chap. 7. Freedman is similarly concerned with wars that are fuelled by greed and conflict over resources. He specifically focuses on two categories as important ameliorating factors: first, on individuals engaged with the warring factions and their need for an alternative livelihood; and second, trade in conflict commodities. The first category is crucial since it seeks to demobilise fighters by creating for them a viable source of livelihood as an ­alternative to the economic benefits that come from joining a militia. After all, a relapse into violence is likely to remain a real threat if fighters join the warring groups to escape poverty and consider the war itself as a reliable source of income whether through benefits, salaries, or looting.7 However, Freedman proposes combining disarmament with micro-credit schemes and making the prospective approval of micro-credit financing conditional upon the applicant’s participation in truth commissions, providing an 7  See, for example, Fernando Coronil and Julie Sikurski, eds., States of Violence (Ann Arbor: University of Michigan Press, 2006).

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attractive economic incentive for leaders and members of their militia to participate. As Freedman argues in Chap. 6, in this case, “participation in a transitional justice exercise can be linked to the relinquishing of a weapon but at the same time to the provision of a small grant or loan that would allow participants to replace the gain from a gun with an otherwise profitable activity.” The second is restructuring trade. It is reasonable to assume that for sustainable peace to be achieved in areas where conflicts are fuelled by trading resources, any step could be taken to alter the very nature of trade, Freedman argues in Chap. 6, so that it “provides real returns to the local economy rather than feeding conflict and crime.” For this to take place, Freedman talks about various schemes to manage clean supply chains for valuable commodities, using the Kimberly Process “chain of warranties,” to Organisation for Economic Co-operation and Development (OECD) mechanisms as a template. But he advises transitional justice architects and practitioners to consolidate alliances between truth commissions, for example, and international traders, arguing that this will reinforce the new arrangements by encouraging the latter to deal only with clean rather than blood commodities.

Moving Forward This volume is intended to provide ideas for specialists and students of transitional justice as well as architects and the practitioners in field. It is specifically focused on the period that precedes the formal launch of any transitional justice process. Although there may be a long list of contextual factors that can impact transitional justice, this volume’s focus is on specifying some of the factors that may “jump-start,” enhance or facilitate the transitional justice process itself. This approach is by no means intended to dissuade the uptake of a transitional justice process. One can imagine a government or donor reading this as the sequential application of ameliorating factors followed by transitional justice as an either/or proposition. They are not. Rather, this volume takes as a starting point that transitional justice is necessary. The development and implementation of ameliorating factors ahead of time can effectively make transitional justice processes work better. This may produce more durable results. It may also reduce the pressures placed on the transitional justice enterprise, since the ameliorating conditions can then take on part of the load that is often placed on transitional justice processes themselves.

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This pre-emptive evaluative approach to transitional justice may be of benefit to transitional justice architects on other fronts as well. A focus on the context may propel those that are involved in the transitional justice process to choose one formal transitional justice tool over another, as they recognise the conditions that may be more favourable to one over another. Or, it may be recommended that more than one mode of justice be selected, whether in tandem or in sequence, depending on the context. What works in one transitional situation may not work in another, and therefore, understanding the specific context that may impact the process in situ may provide transitional justice architects with a better idea of how to address those conditions to make whatever approach is ultimately adopted work better. A number of elements were not addressed in this volume and others warrant further attention. The first is identifying a wider range of pre-­ existing conditions that may impact the process. These are likely to differ from one case to another. Further study is needed to explore and understand both what these are and how they function, along with how they impact transitional justice. Second, this volume seeks to begin a discussion about the role that ameliorating factors can play in making transitional justice processes work better, by improving those contextual conditions that have beset the country during war or repression. Identifying factors that might help address specific challenges to transitional justice processes, debating the pros and cons of these factors, and searching for ones that work better would be a welcomed contribution to this field, and a topic for future research. Third, how transitional justice mechanisms might be adapted to situations in light of conditions and ameliorating factors warrants further ­attention. Though the focus of this volume has been on the management of conditions, there may be means by which formal transitional justice mechanisms themselves can be adjusted to certain conditions. Further investigation is needed to better understand the potential of this iterative relationship with transitional justice mechanisms. At its heart, this volume is optimistic about the prospects of transitional justice to make real and lasting change. The focus of each of the chapters, while on conditions and situations that might seem too intractable and therefore inhospitable to transitional justice, indicates that both small, incremental changes and big ideas are needed to make a difference. Our focus on ameliorating those pre-conditions seeks to point the way to that future success.

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Bibliography Arthur, Paige “How ‘Transitions’ Reshaped Human Rights: A Conceptual History of Transitional Justice.” Human Rights Quarterly 31, no. 2 (2009): 321–367. Coronil, Fernando and Julie Sikurski. Eds. States of Violence. Ann Arbor: University of Michigan Press, 2006. Donnelly, Jack. Universal Human Rights in Theory and Practice. 2nd ed. Ithaca: Cornell University Press, 2003. Freeman, Mark. Necessary Evils: Amnesties and the Search for Justice. Cambridge: Cambridge University Press. International Crisis Group. “Can Gas Save Cyprus? The Long-Term Cost of Frozen Conflicts,” accessed 8 August 2019; https://www.crisisgroup.org/ europe-central-asia/western-europemediterranean/cyprus/can-gas-save-cypruslong-term-cost-frozen-conflicts. Mallinder, Louise. Amnesties and Inclusive Political Settlements. PA-X Report: Transitional Justice Series. Edinburgh: Global Justice Academy, University of Edinburgh, 2018. Ndulo, Muna B. and Roger Duthie. Research Brief: The Role of Judicial Reform in Development and Transitional Justice. Research Unit. New York: International Center for Transitional Justice, July 2009.

Index1

A Accountability, 4, 10, 74, 79, 80, 85, 90, 93, 150, 155–157, 159, 163–168, 178, 211, 222 Acknowledgement, 20–22, 26, 108, 110, 123n92 African Union, 77n17, 159 Ameliorating factor, 9, 10, 14, 19–41, 49, 64–69, 73, 77–92, 99, 123, 131, 139, 141, 142, 150, 155, 159, 164, 165, 168, 178, 179, 186, 196–199, 218–220, 222–226 definition, 14, 20, 27–28, 69, 99, 131, 150, 218, 224, 226 Amnesty, 4, 5, 7, 10, 13, 34, 73–93, 138, 170, 170n60, 175, 176, 178, 222 Apology, 5, 6, 38, 140 Atrocity crimes, 6, 80, 158, 161, 170, 170n60, 179, 222

B Barrow, President Adama (The Gambia), 151–153, 155–158, 162, 165, 168 C Civil society civil society organisations (CSOs), 91–93, 133, 161, 178, 206, 220 non-governmental organisations (NGOs), 22, 38, 77, 88 Colombia Comprehensive System of Truth, Justice, Reparations and Non-Recurrence, 98, 108, 111, 113, 124 Final Agreement, 98, 99, 101–105, 107, 110, 121, 123n93, 124, 124n95

 Note: Page numbers followed by ‘n’ refer to notes.

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Colombia (cont.) General Agreement, 98, 99, 103, 103n13 General Documents, 101 Government of Colombia, 97, 103 Historical Commission of the Conflict and Its Victims, 101, 101n6 (see also Historical Commission) Joint Agreement on Victims, 104–106, 108, 110, 111, 117 Revolutionary Armed Forces of Colombia—People’s Army (FARC/FARC-EP) or Fuerzas Armadas Revolucionarias de Colombia, 13, 97, 102–106, 108, 110, 117n61, 119, 124 Conflict, 1, 4, 7, 13, 19–22, 26–40, 77n17, 78, 82, 89, 98–102, 105–107, 109–114, 109n29, 116–120, 116n60, 119n71, 122n85, 123n92, 124, 125, 129–134, 136–139, 141–145, 143n25, 187, 210, 217, 219, 220, 224, 225 See also Coup; War; Warfare Context, 1–14, 26, 35, 40, 50, 51, 59, 64, 65, 70, 73–93, 105, 111, 149, 150, 155–157, 162–164, 166, 177, 186, 194, 197, 199, 200, 202, 204, 207, 209–211, 217–226 Coup, 29, 65, 151, 171, 172, 175, 176 Courts, 4, 5, 13, 34n80, 55, 74, 76, 80, 80n26, 84–93, 84n40, 115, 132n6, 136, 176, 179, 185, 186, 191–198, 207–211, 218, 223 See also International Criminal Court (ICC); National courts; Nuremberg Tribunal

democratic institutions, 73, 75, 219 democratic uncertainty, 12, 49–71, 220–221 democratisation, 49–71, 220, 221 Democratic Republic of Congo (DR Congo, Congo) Global and Inclusive Agreement on Transition, 133 Government of Democratic Republic of Congo, 5, 11–13, 131–135, 132n6, 137 Truth and Reconciliation Commission, 7, 79, 133, 134, 136, 137 Development, 10, 25, 27, 35, 50, 52, 53, 110, 116, 145, 152, 163, 164, 177, 186, 187, 202, 207, 219–221, 225 Dignity, 123, 186, 191–193, 200–211, 223 Disarmament, 14, 81, 139–144, 224 Disarmament, demobilisation and reintegration (DDR), 13, 19–41, 140 E Education, 9, 10, 12–14, 25n34, 39, 75, 162, 174, 185–212, 218, 219, 222–223 judicial education, 9, 10, 12–14, 185–212, 219, 222–223 Elections, 52, 54, 56, 57, 60–66, 68, 69, 89, 121n83, 133, 134, 150–155 Elites, 75, 79, 85, 88, 124, 134, 193, 223 leaders, 75, 79, 89 Empathy, 23–25, 25n30, 176

D Democracy democratic governance, 73n1, 150, 155

F FARC, see Revolutionary Armed Forces of Colombia—People’s Army

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G The Gambia Barrow, President Adama, 151–153, 155–158, 162, 165, 168 Government of The Gambia, 179 Jammeh, President Yahya, 11, 150–161, 163–172, 170n60, 174–179 Sabally, Sana, 175 Truth, Reconciliation and Reparations Commission (TRRC), 150, 165, 166, 168–179, 175n78 Greed financial resources, 130, 131, 163, 224 money, 163 Grievance, 129–131, 135, 141, 143, 188

International Criminal Tribunal for Rwanda (ICTR), 4, 156 International Criminal Tribunal for the Former Yugoslavia (ICTY), 4 International Military Tribunal at Nuremberg, 4

H Haiti, 26, 78, 118n66 Historical Commission, 105, 106, 110, 124 Human rights, 3, 4, 8, 11, 50, 70, 74, 77, 79, 80, 88, 98, 109–112, 114, 117, 122n90, 123n91, 142, 156, 157, 160, 162, 164–166, 169–171, 178, 179, 188, 191–194, 196, 198, 201, 211, 221

K Karamah experience, the, 199, 210 Kimberley Process Kimberley Process certification scheme, 142

I Institutional reform, 9, 70 International Centre for Transitional Justice (ICTJ), 168 International crimes atrocity crimes, 6, 80, 158, 161, 170, 170n60, 179, 222 jus cogens crimes (see Atrocity crimes) International Criminal Court (ICC), 4, 34, 34n80, 77n17, 118, 157, 170, 171, 196

J Jammeh, President Yahya (The Gambia), 11, 150–172, 170n60, 174–179 Judicial capacity, 14, 207 judicial incapacity, 223 Judicial reform, 13, 14, 90–93, 92n78, 92n79, 185, 186, 196, 201, 212, 218, 220, 223

L Lebanon Al-Hariri, Rafic, assassination of, 76 8th of March Coalition, 76 14th of March Coalition, 76 Hezbollah, 76, 82, 89, 90n68 Ta’if Agreement/National Reconciliation Accord/ Document of National Accord, 74, 75, 77, 79, 81, 82 Legislative reform, 9, 196–199, 223 Lord’s Resistance Army (LRA), 7, 30, 30n57, 34–36, 38–40 Lustration, 4, 6, 77, 196–198, 223

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M Micro-credit financing, 224 Museveni, President Yoweri (Uganda), 28, 28n41, 29, 31, 33–35, 34n80, 38 N National consultation, 168 National courts effect of impartiality, 13, 74, 85, 88, 91, 92 effect of independence, 13, 74, 85–87, 90–92 judicial independence, 86 Natural language processing, 13, 102, 125 Non-governmental organisations (NGOs), 22 See also Civil society, civil society organisations (CSOs) Norms, 39, 41, 80, 109, 191–193, 197, 200, 206, 208, 211 Nuremberg Tribunal, 4 See also International Military Tribunal at Nuremberg O Offenders, 115, 195, 208, 209, 223 Organisation for Economic Co-operation and Development (OECD), 143, 225 P Palestine, 11, 12, 186, 199–203, 205, 207, 209–211, 218 Karamah process, 14, 199–202, 211, 218 (see also Karamah experience, the)

Peace, 9, 10n36, 11, 13, 22, 32, 37, 38, 75, 77–79, 77n17, 81–85, 92, 97–125, 129, 131, 135–137, 139, 140, 142, 144, 164, 165, 187, 193, 194, 200, 205, 210, 211, 219–222, 225 Peace agreement Comprehensive System of Truth, Justice, Reparations and Non-Recurrence—Colombia, 98, 108, 111, 113, 124 Final Agreement—Colombia, 98, 99, 101–105, 107, 110, 121, 123n93, 124, 124n95 General Agreement—Colombia, 97–99, 103, 103n13 General Documents—Colombia, 101 Global and Inclusive Agreement on Transition—DR Congo, 133 Joint Agreement on Victims— Colombia, 104–106, 108, 110, 111, 117 Lomé Peace Agreement—Sierra Leone, 135, 136 Ta’if Agreement/National Reconciliation Accord/ Document of National Accord)– Lebanon, 74, 75, 77, 79, 81, 82 Perpetrators, 4, 5, 21, 77, 79–81, 89n65, 115, 124, 136, 158, 161, 165, 171, 172, 174–179 See also Offenders; Re-offenders Prosecution, 5, 10, 13, 34n80, 73–93, 114, 154, 158, 162, 165, 166, 168, 170, 172, 176, 178, 179, 191, 192, 194, 218, 222–224 R Recidivism, 82, 84, 222 Recognition, 23, 36, 40, 41, 56, 60, 62, 108, 111, 115, 123n92, 162, 191, 218, 221

 INDEX 

Reconciliation, 9, 21, 34, 37, 75, 78, 84, 108, 115, 133, 136, 137, 139, 140, 145, 157, 172, 177, 178, 187, 195, 205, 211, 220 Re-offenders, 82 Reparation, 1, 4–6, 104, 105, 108, 110–112, 115, 115n51, 116, 124, 132n6, 168, 169, 172–174, 173n70, 176, 177, 191, 192, 194, 195, 223, 224 Repatriation, 150, 165 Revolutionary Armed Forces of Colombia—People’s Army (FARC/FARC-EP) or Fuerzas Armadas Revolucionarias de Colombia, 13, 97, 102–106, 108, 110, 117n61, 119, 124 Rule of law, 8, 12, 58–60, 62, 73–75, 77, 79, 84–86, 122n90, 159, 161, 169, 186, 187, 191, 193, 194, 200, 201, 205, 211, 223 Rwanda, 4, 132, 132n6, 156 See also International Criminal Tribunal for Rwanda (ICTR) S Sequencing, 8, 10, 82, 150, 164–166, 177, 218, 219 Sierra Leone Lomé Peace Agreement, 135, 136 Special Court for Sierra Leone, 4, 7, 136 Social cohesion, 21, 137n14 South Africa, 5, 79, 156, 168, 198 Sympathy empathy, 23, 24 sympathetic engagement, 14, 20–27, 36–38, 41 thick sympathy, 23, 24 thin sympathy, 9, 10, 12, 14, 19–41, 218, 220

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T Trials courts, 4, 7, 13, 80n26, 86, 88, 136 judicial capacity, 14, 207 prosecution, 5, 13, 73–93, 154, 158, 165, 170, 172, 176, 178, 179, 191, 194, 222, 223 Trust, 7, 12, 13, 41, 51, 100, 153, 159, 162, 163, 176, 186–191, 193–195, 201, 218, 221, 223 trustworthiness, 14, 185–212, 223 Truth commission commission of Inquiry into Violation of Human Rights—Uganda, 34 Truth and Reconciliation Commission—Democratic Republic of Congo, 133, 134 Truth and Reconciliation Commission—Sierra Leone, 7, 136, 137 Truth, Reconciliation and Reparations Commission—The Gambia, 150, 165, 166, 168–179 Truth-telling, 139–144, 191, 192, 194, 195 U Uganda Commission of Inquiry into Violation of Human Rights, 33–34 Kony, Joseph, 34 Lord’s Resistance Army, 7, 30, 30n57, 34–36, 38–40 Museveni, President Yoweri, 28, 29, 31, 33–35, 34n80, 38 United Nations Secretary-General, 7–9 Security Council, 12, 76, 99, 154

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INDEX

V Values, 14, 19n1, 27, 52, 63, 69, 132, 138, 144, 145, 169, 189, 190, 200–204, 209, 219, 220 political values, 204–207, 211 Vetting, 6, 91, 196–198, 223 Victims, 9, 21, 73, 97–125, 131, 157–158, 191, 220

W War, 3, 9, 11, 37, 70, 73–77, 79–84, 83n37, 83n38, 109, 129–145, 130n1, 156, 170n60, 219, 224, 226 Warfare, 131 World Bank, 30, 30n60