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Transitional Justice

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By Eoin
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Transitional Justice

Introduction

‘How a society deals with its past has a major determining influence on whether that society will achieve long-term peace and stability’ (Sarkin, 2001).  Discuss, paying attention to the models of justice in post-conflict Rwanda and South Africa.

Sarkin asserts approaches to dealing with past injustices determine whether transitional democracies realize long-term peace and stability1. Stability is consistent with positive peace: the absence of physical and structural violence alongside equal rights and civil trust2. This essay assesses progress towards these normative outcomes with reference to transitional justice in post-genocide Rwanda and post-apartheid South Africa.

Reconciliation is a mediating prerequisite of short-term (truth and justice) and long-term (peace and stability) justice mechanism objectives34. Chapman claims the short-term negative impacts of truth on reconciliation are outweighed by its longer-term necessity for nation-building5. Elon highlights friction between truth, justice and peace, contending that ‘a little forgetfulness might be in order’6 but, to Sarkin, post-genocide reprisal killings occurred ‘because the tragedy remains unresolved in terms of truth, justice and reconciliation’7; he stresses the negative impact of ‘collective amnesia’8. Mihai adds that institutions of democracy and law are discredited if legacies of human rights violations are not confronted. Further, trust and stability are undermined by moral hatreds; reproduced when victims’ demands for justice recognition are not acknowledged9. This, argues Kiss, ‘produces the cycles of distrust, hatred, and violence we have witnessed in…the Balkans, Rwanda, and the Middle East.’10 Demonstrating the limited empirical evidence to support the presumed merits of transitional justice, Skaar argues that universally-applicable justice models are a fallacy, alongside Betts in stressing contextual specificity1112.

Consequently, this essay first addresses contextualization in formulations of justice models, then focuses on models adopted in Rwanda and South Africa. Overarching justice typologies are dichotomized as retributive and restorative. Retributive focuses on legal punishment. Restorative, through truth commissions, reparations and amnesties, is social justice: ‘concerned with restoring broken relationships.’13 Rwanda and South Africa reflect differing priorities which streamline existing disputes, highlighting inadequacy in absolute models. Academic trends suggest ability to implement the stabilizing tenets of ‘truth, justice and reconciliation’ can only be achieved by balancing both models14. The examples engage emergent emphases on victim reparations and informal, locally-administered justice initiatives15. Innovations and deficiencies are hereby identified through synthesized critiques of progress towards short and long-term goals. Through Honig’s ‘remainders’, I argue that dealing with the past is essential to breaking cycles of violence, victimization and bitterness; mishandling these legacies reinforces pre-existing fractures. Critical assessments are balanced by recognizing contributions to more innovative conceptualizations of justice models, which must sensitively acknowledge local circumstances. By exposing the inherent risks of dealing with the past future legacy-based initiatives towards peace and stability can be better informed.

Sarkin’s Transition Typologies

Sarkin identifies three transition typologies: reform, compromise, overthrow. Correlating with capacity constraints exemplified by justice contexts in Chile (‘ingeniously’16 restrictive), South Africa, and Rwanda respectively17, they determine mandates and resources for addressing past injustices. Within reform or compromise, the past retains influence, as perpetrators wield ‘military, judicial, and economic power.’18 In Chile and South Africa, outgoing parties negotiated privileged terms of transition19. Senior security personnel precluded significant retributive action by the incoming African National Congress (ANC), promising to make ‘a peaceful election totally impossible.’20 Chilean and South African perpetrators were thereby able to demand amnesties. After an overthrow transition, however, there are, Sarkin asserts, ‘no significant political constraints.’21

Yet inherent, near-universal limitations are imposed more generally by transition; scarcity of resources and under-staffed legal personnel examples amidst a litany of competing priorities for transitional governments seeking cohesion from instability22 23 24. These are compressed by time constraints, as ‘with the injustices of men…the longer they remain unrepaired, the greater become the obstacles to repairing them.’25 Moreover, time introduces complicated counterfactuals to calculations of retribution and reparation26, necessitating precise delineations of justice time-frames.

Both cases defied pre-existing conceptual rigidities and pursued innovative, expeditious resolutions of past injustices. In 2006, Elster described our present third phase in transitional justice evolution is demarcated by the decline in ‘spontaneous justice’ and increase in transnational learning27. Earlier Truth Commissions implemented in Argentina (1983-84) and Chile (90-91) necessarily compromised justice. Binding truth to conditionality of amnesty, South Africa’s Truth and Reconciliation Commission (TRC) represented unprecedented ambition in its evolved conception of truth as the mechanism for justice28. The second aspect of Elster’s third phase is the international community’s increased role in upholding of justice and deterrence. However, ‘full development may well be blocked […] transitional justice is sure to exist in a tension between domestic and international forces.’29 Elster limits discussion of Rwanda to a suggestion that the International Criminal Tribunals for Rwanda (ICTR) will assist in developing a transnational legal framework30. Rather, Rwanda encompasses this contestation between domestic and international jurisdiction. It has overcome evident resource limitations3132 in determination to try all suspected genocidaires.

Innovations

South Africa

The South African TRC was structurally unique in two significant ways. Unlike most Truth Commissions, South Africa’s model development was expressly democratic; the process was informed by those affected but pre-empted accusations of impartiality by acknowledging ANC culpability in human rights violations, subjecting themselves to the same procedures as pro-apartheid perpetrators. Representatives of the independent commission were publically-nominated and the process, endorsed by Parliamentary Act, emphasised transparency. Hearings were public. Secondly, determination to provide legal accountability, against the ‘crass impunity’ and ‘partial justice’ which affected victim support for the blanket-amnesty Chilean and Argentinean commissions, resulted in conditionality of amnesty33: ‘judicial stick and TRC carrot’34. Amnesty was individualised; perpetrators of gross violations were invited to apply within a 16-month window, exchanging full disclosure for criminal and civil court reprieve dependent on the qualifying criteria of political motivation. Personal motives were ineligible. This time-window forced the hand of prospective applicants; 7,116 applied, among whom 1,973 received a hearing and were confronted by their victims before the Commission. 1,167 amnesties were granted35.

While recognizing its imposed limitations, the TRC’s Final Report supports restorative justice in explicit contrast to retribution, expressing the former’s superior facilitation of authoritative, inclusive truths. These extinguish lingering debate and restore the dignity of victims by officially acknowledging their ‘unknown narratives of apartheid’36. Kiss highlights the superiority of truths obtained through commission over trial, citing General Malan’s expansive TRC admissions relative to his earlier criminal trial, and potential chain-of-command accountability. For Kiss, ‘more dangerous, perhaps, than ignored injustices are distortions and disinformation’37. Crucially, the TRC could erode pre-existing stereotypes which, uninterrupted, would sustain social fractures. This was achieved through four categorizations of truth, balancing legalistic objectivity with more contextual, participatory and personal forms, towards reconciling ‘an acceptable truth…made and owned by the people.’38 Desmond Tutu’s reflections on contextualizing and understanding violence39 through new forms of truth are supported by Baumann’s assertion that divided societies must acknowledge the moral legitimacy of the ‘other’s’ violence in order to break from the past and fully address the dehumanizing effects of past injustices40. As evidenced by the Final Report’s exhaustive recommendations, the TRC’s accountability sought to explain culpability within broader frameworks of applicability and appease victim demands for justice through social transformation41.

Hayner argues that Truth Commissions attained popularity because of their superior ability to develop truth, peaceful reconciliation and human rights culture42. However, concrete linkages to justice had to be established. South Africa publicized perpetrators to an unprecedented degree, as well as investigating institutional accountability. Truth is an essential starting-point; it accurately distinguishes innocence from guilt, further combatting distrust by ‘breaking cycles of violence and oppression that characterize profoundly unjust societies.’43 Cognisant, however, of displaced criminal justice, a crucial component was the Reparation and Rehab Committee, which assisted social justice, healing and reconciliation through reparatory grants.[44] Efficacy and victim support are therefore contingent on fulfilling legal measures, reparations, and developmental reforms.

Rwanda

In the immediate aftermath of the genocide, the ICTR established jurisdiction over ‘high-level genocidaires’44 who committed crimes in 1994. Scorned by the national government (RPF) it has thusfar concluded 52 trials45. Nationally, Rwanda’s 1996 genocide law rejected earlier consideration of South Africa’s model, feeling reconciliation should wait for justice46. Retributive justice is considered instrumental in deterring future violence and fostering respect for human rights and rule of law. Catharsis derives from appeasing  victims’ desires for, and legal rights to, criminal justice47. Efforts towards indicting all 100,000 detainees (750,000 were eventually charged48) incarcerated for suspected association with the genocide4950 were undermined by resource limitations and a judiciary devastated by death and exile. By 2001 5,300 trials were concluded; prison overcrowding and resource drains prefaced the introduction of the recently-concluded gacaca courts for non-capital crimes ranging from looting to murder. Early optimism51 was predicated on (and, in some cases52, sustained by) four core features.

Firstly, Tim Clark supports its efficiency in ‘delivering accountability for hundreds of thousands of génocidaires and acquitting tens of thousands of falsely accused suspects’53. Secondly, post-genocide Rwanda suffered mutual fear; the Tutsi minority feared democracy camouflaged genocide planning, while the Hutu majority feared justice pursued impartial vengeance (not helped by retaliatory killings) and consolidation of Tutsi power54. Gacaca courts thus suggested necessary awareness of truth and reconciliation55, embedding ‘strong restorative elements’ within a retributive framework. Gacaca was modelled on a traditional, pre-colonial system of informal community justice emphasizing public restoration and reparation. Rwanda’s state-sanctioned narrative concludes that ethnic fractures were a colonial ‘invention’56. A pre-colonial justice model elicits broader appeal than positivistic judicial structures57 disproportionately populated by the Tutsi through Hutu dispersal and perceived as colonial implants. As Kiss demonstrated with reference to TRC discourses of ‘forgiveness’ and ‘ubuntu’58, here Betts suggests that expiation and reconciliation relies on ritualistic and culturally-specific dimensions59. Gacaca constituted a symbolic reconciliatory platform stressing collective commonalities.

Thirdly, mass-participatory crimes necessitate mass-participatory reconciliation. To ‘fulfil the normative criteria of stability and social integration, it [justice] must be reoriented towards the community level’60. In October 2001, 254,000 ‘honourable’, lay locals were elected to oversee trials. Defendants were denied professional legal representation but could call witnesses; no formal evidence was required. Perpetrators were tried before the community where their alleged crimes were committed and, serving as witnesses and jurors, community attendance was compulsory. Empowered to deliver life sentences, perpetrators providing full confessions, apologies and implicating accomplices could nevertheless halve their sentences through outright reductions and community work61. As an open forum, the process contributes theoretically to ‘political and personal reconciliation…people are given the opportunity to confront their attackers, tell their stories and express pent-up emotions all in a secure environment.’62 Similar to Kenya’s customary law, Gacaca was legitimized through a privileged re-invention of tradition which differed markedly in its contemporary form; ‘highly regulated, national and involuntary’63, and ‘distinctly punitive’64. Indeed, limitations and superficialities have re-constituted social fractures threatening progress towards peace and stability in Rwanda and South Africa.

Critiques

Justice

A common theme in transitional justice is subversion of due process65. All nationally-administered models (Hungary excepted) adapted existing rules of law to accommodate transitional prerogatives66. Some South African victims filed a lawsuit asserting their ‘rights to seek judicial redress had been unconstitutionally violated’67. Victim support waned with TRC considered legally empty. Political will shifted towards the emergent problem of ‘disaffected black youth’68: ex-combatants and children deprived of social and educational opportunities. Suppressed by security and judicial structures akin to pre-apartheid incarnations, legalistic inadequacies failed to institute new norms of ‘human rights thinking’69. Van der Merwe’s suggestion that victims’ views were misrepresented, and their rights compromised, in formulating post-apartheid justice mechanisms70 further explains the discrediting of South African justice.

Defending gacaca from human rights critiques, Clark criticises ‘legal rigidity’71; fulfilling Rwanda’s retributive ambition, gacaca was a necessary innovation, he argues. However, its judicial powers should have acknowledged intrinsic limitations. Upholding life sentences when denying suspects legal representation and where standards of evidence are not exacting, is illegal, unjust, and fails to distinguish the present state as rights-conscious. Often, confessions were dismissed and life sentences applied72 based on subjective facts open to manipulation; instances of ‘disappearance, murder, bribery and intimidation’73 quickly surfaced. Further, judges were not competent to accurately assess complex legal cases. Conseillers juridiques assisted the lay judiciary but, owing to Tutsi monopoly, would institute ethnically-bounded understandings74. President Kagame himself acknowledges that every Rwandan was in some form affected by the genocide75. Their impartiality is therefore contingent on stringent legal norms. Yet the ‘honour’ of judges was monitored by the state76 and outcomes hereby normalized according to officially-promulgated narratives. The inadequacy of evidence reflects an attitude that ‘we don’t need truth, we know who did what’77. This linkage between victor’s truth and justice alerts us to Foucault’s regimes of truth, where states regulate the parameters of admissible truth78.

Truth

South Africa’s TRC has not succeeded in delivering authoritative truth. Underrepresentation of female and illiterate ‘truths’ reflects exclusion; indeed, the mandate, limited to gross physical rights violations, excluded structural violence79, and fixated on political motive80. Further, between 1990 and 1994 the Commission documents 5,695 murders but authorities estimate 14,00081. Victims were not always forthcoming and time constraints increasingly limited the rigour of hearings82.  As in Rwanda, some found the truth and reconciliation process traumatic rather than cathartic. Significantly, in both cases, ‘tactical storytelling’83 distorted the testimony of victim and perpetrator around plea-bargaining and reparation claims, leading to false guilt or limited testimony. Powerful groups, organizations and ethnic cliques collectively negotiated or colluded in formulating acceptable truths8485. Individualized applications could be framed as aberrations, thereby limiting structural accountability and limiting wider, public acknowledgement of ‘little perpetrator’ guilt. TRC credibility was undermined by Desmond Tutu’s support for Winnie Mandela’s incomplete truth (the ANC was similarly well-served by amnesty), contributing to Afrikaner perceptions that they were subject to a ‘witch-hunt.’86

Nevertheless, in stark contrast to the ANC, the incumbent RPF have refused to acknowledge any accountability for a ‘large number of persons, including women and children, reported to have been killed from 1994 onwards.’87 Despite exhortation by the UN Human Rights Committee to investigate, Kagame, himself evading two international arrest warrants, including suspected Hutu genocide in DR Congo’88, dismisses violations as individual transgressions addressed by internal procedures89. Exclusionary truths objectively perpetuate ethnic divides through ‘victim’/‘perpetrator’ rigidity but ‘any attempts to hold an ethnic group (in this case, Hutus) collectively responsible for all crimes will only lead to future acts of collective retaliatory violence’. The exclusionary RPF narrative regulates global, national and local justice implementations through which it is reciprocally legitimized and reinforced. This narrative is embedded at ingando solidarity education camps compulsory for students, genocide perpetrators and ex-combatants90. These enforce contestable causal relationships between colonists and stratification, and a genocide narrative which prevents Hutu victims from demanding universal justice alongside legislation denying political rivals access to elections under flimsy accusations of ‘genocide ideology’. Internationally, ‘genocide credit’ acquired through inaction guilt facilitates unconditional development loans and exclusion of RPF crimes in the ICTR91.

Remainders

Secure, open, and emic Chakravarti argues gacaca demonstrated unique potential for simultaneously embedding agonistic contestation and participatory reconciliation through mutual ‘understanding’ of the violence of ‘other’ and the divisiveness of ethnic categorizations. Hutu narratives emphasize engagement in civil war and their perceived subjugation by Tutsi pre-dating the colonial period. A mutual recognition of legitimate claims to ‘victim’, both through Hutu and RPF crimes, could assist reconciliation. However, judicial exclusion is upheld social-economically through forced relocations: ‘Rwanda’s history should have shown that an ethnicization of economic activities is something to be avoided if the country wants to evolve to a more peaceful future.’92 Recent developmental integration has not addressed imbalances. Rather, ‘stable’ depictions conceal a worsening in conditions for genocide survivors and the rural poor, retaining ‘the conditions of structural violence’93. South Africa’s ambitious yet flawed truths demonstrated reconciliatory value in eroding stereotypes. Former TRC member Yasmin Sooka, however, stresses the new inequalities and impunities which remained.94 Failure to provide proposed reparation payments dovetails with the immediate amnesty of perpetrators in sentiments of ‘double victimisation’95.

Bonnie Honig argues temporary political stability is secured through exclusionary structures which formulate legacies of unaddressed grievance, remainders. These mutate in conflict with the institutions of exclusion96.Warren Christopher, reducing Bosnia to ‘nothing but a matter of ancient hatred’,97 overlooks the fact that ‘ancient hatreds’ are sustained by analogistic retreats towards bounded historical narratives and divisive socio-economic connotations98. Their cyclical re-constitution could be addressed through agonistic models of individualized narrative to nuance ‘out-group’ understandings alongside developmental reform to erode rigid socio-economic generalisations. These reconciliatory mechanisms have been neglected in Rwanda and South Africa’s justice models. Consequently, remainders will mutate from the re-constitution of exclusionary institutions of truth and justice to undermine efforts towards peace and stability.

Conclusion

Of transitional democracies, only Spain adopted a ‘pact of forgetting’99. ‘Collective amnesia’ has re-emerged in acrimony and disunity, leading Baumann to conclude every society has to deal with its past.100 Legitimate victim claims for justice must be appeased through impartial, uncensored truths. These can erode conflict identities and promote trust through understanding. Perpetrators should be addressed according to individual violations, in tandem with wider social justice. South Africa made early strides towards narrative reconciliation, yet cycles of physical and structural violence must be halted by efficiently addressing the past, learning from it and enacting appropriate long-term reform; the building-blocks of reconciliation and stable peace. By inadequately doing so, both examples have re-constituted and re-embedded legacies of exclusion, their efforts undermined by political will and resource capacity. However, the examples provoke innovative conceptualizations of mechanisms bridging restorative and retributive justice. Engagement with the past must recognize contextual limitations and cultural specificities, developing reconciliation through community participation and developmental integration (social justice) while maintaining criminal justice through pragmatically-scaled ‘fair trials’. These represent the supposed contribution of the international community. Despite costing over US$1 billion they have not contributed positively to post-genocide Rwanda101. Too distant from the population to promote trust and reconciliation, international efforts are best directed towards capacity-building in affected societies; upholding accountability and deterrence by facilitating and monitoring impartial developmental and judicial structures effected at national and local level.102103

Bibliography

Books and Journals

Acuña, C. H. (2006) ‘Transitional Justice in Argentina and Chile: A Never-Ending Story?’ in J. Elster (Ed.) Retribution and Reparation in the Transition to Democracy, Cambridge and New York: Cambridge University Press, , pp. 206-238.

Baumann, M (2009) ‘Understanding the Other’s “Understanding” of Violence’, International Journal of Conflict and Violence, Vol. 3, No. 1, pp. 107 – 123.

Betts, A, (2005) ‘Should Approaches to Post-conflict Justice and Reconciliation be Determined Globally, Nationally or Locally?’, The European Journal of Development Research, Vol.17, No.4, pp. 735 – 752.

Boraine, A (2006) ‘Truth and Reconciliation Commission in South Africa. Amnesty: The Price of Peace’, in J. Elster (Ed.) Retribution and Reparation in the Transition to Democracy, Cambridge and New York: Cambridge University Press, pp. 299-316.

Chakravarti, S (2012) ‘The Case of Gacaca:  A Flawed Project and the Hope for Transitional Justice’, Conflict, Memory, and Reconciliation: Bridging past, present, and future,10th-13th January 2012, Kigali.

Chapman, A.R. (2008) ‘The TRC’s Approach to Promoting Reconciliation in the Human Rights Violations Hearings’, in  A. R. Chapman and H. van der Merwe (Eds.) Truth and Reconciliation in South Africa: Did the TRC Deliver?, Philadelphia: University of Pennsylvania Press, pp. 45-65.

Corey A. and Joireman S. (2004) ‘Retributive Justice: The Gacaca Courts in Rwanda’, African Affairs, Vol. 103, No. 410, pp. 73-89.

Cowen, T. (2006) ‘How Far Back Should We Go? Why Restitution Should Be Small?’ in J. Elster (Ed.) Retribution and Reparation in the Transition to Democracy, Cambridge and New York: Cambridge University Press, pp. 17-32.

Elster, J. (2006) Retribution and Reparation in the Transition to Democracy, Cambridge and New York: Cambridge University Press.

Hayner, Priscilla B. (1994) ‘Fifteen Truth Commissions–1974 to 1994: A Comparative Study’, Human Rights Quarterly Vol. 16, No. 4, pp. 597-655

Kagame, P (2008) ‘Preface – President Paul Kagame’, in Clark P. and Kaufman Z. (Eds.) After Genocide: Transitional Justice, Post-conflict Reconstruction and Reconciliation in Rwanda and Beyond, London: Hurst, pp. xxi-xxvii.

Kiss, E. (2000) ‘Moral Ambition: Within and Beyond Political Constraints’, in R. Rotberg and D. Thompson (Eds) Truth v. Justice: the morality of Truth Commissions, Princeton University Press, Princeton, pp. 68-98.

Melvin, J (2012), ‘Beyond the Veneer of Reconciliation: human rights and democracy in Rwanda’, Commonwealth Advisory Bureau, March 2012, pp. 1-8.

Mihai, M (2010) ‘Transitional Justice and the Quest for Democracy: Towards a Political Theory of Democratic Transformations’, Unpublished Philosophy Thesis, University of Toronto.

Rettig, M (2008) ‘Gacaca: Truth, Justice, and Reconciliation in Postconflict Rwanda?’, African Studies Review, Volume 51, Number 3, pp. 25-50.

Roberts, D (2008) ‘Post-conflict Statebuilding and State Legitimacy: From Negative to Positive Peace?’, Development and Change, vol. 39, no. 4, pp. 537–555.

Rolston, B and Scraton, P (2005) ‘In the Full Glare of English Politics: Ireland, Inquiries and the British State’, British Journal of Criminology, Vol. 45, pp. 547-564.

Rydgren, J (2007) ‘The Power of the Past: A Contribution to a Cognitive Sociology of Ethnic Conflict’, Sociological Theory, Vol. 25, Issue 3, pp. 225–244.

Sarkin J. (2001) ‘The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with the Genocide’, Journal of African Law, Vol. 45, No. 2, pp. 143-172.

Sarkin, J (2008) ‘An Evaluation of the South African Amnesty Process’, in A. R. Chapman and H. van der Merwe (Eds.) Truth and Reconciliation in South Africa: Did the TRC Deliver? Philadelphia: University of Pennsylvania Press, pp. 93-115.

Skaar, E (2011) ‘Understanding the Impact of Transitional Justice on Peace and Democracy’, paper prepared for 6th General Conference of European Consortium of Political Research, 25th-27th August 2011, Reykjavik.

Stanley E. (2001) ‘Evaluating the Truth and Reconciliation Commission’, Journal of Modern African Studies, Vol. 39, No.3, pp. 525-546.

van der Merwe, H (2008) ‘What Survivors Say About Justice: An Analysis of the TRC Victim Hearings’, in A. R. Chapman and H. van der Merwe (eds.) Truth and Reconciliation in South Africa: Did the TRC Deliver?, Philadelphia: University of Pennsylvania Press, pp. 23-44.

Websites

Africa Portal, ‘Challenges of Transitional Justice in Rwanda’, Backgrounders, No. 18 (Jan 2012) Accessed at: http://dspace.cigilibrary.org/jspui/bitstream/123456789/32530/1/Backgrounder%20No.%2018.pdf?1

BBC News, ‘South Africa Truth Row Resolved’, 29 January 2003. Accessed at: http://news.bbc.co.uk/2/hi/africa/2705237.stm

Clark, P (2012) ‘The Legacy of Rwanda’s Gacaca Courts’, Think Africa Press, 23 March. Accessed at: http://thinkafricapress.com/rwanda/kagame-stay-or-go

International Criminal Tribunal for Rwanda, Status of Cases. Available online (last accessed 19th April 2012): http://www.unictr.org/Cases/tabid/204/Default.aspx

UN Human Rights Committee (2009) cited in Ruth Wedgwood, ‘Paul Kagame and Rwanda’s Faux Democracy’, The New Republic, August 5th 2010. Accessed at: http://www.tnr.com/blog/foreign-policy/76786/rwanda-kagame-faux-democracy

Human Rights Watch, ‘Justice’ Compromised’. Accessed at: http://www.hrw.org/de/node/99177/section/2

Sooka, Y (2006) ‘Dealing with the past and transitional justice: building peace through accountability’, International Review of the Red Cross, Vol.88, No. 862 (2006), pp. 311-325. Accessed at: http://www.icrc.org/eng/assets/files/other/irrc_862_sooka.pdf

  1. Jeremy Sarkin, ‘The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with the Genocide’, Journal of African Law, Vol. 45, No. 2 (2001), pg. 143. ↩︎

  2. David Roberts, ‘Post-conflict Statebuilding and State Legitimacy: From Negative to Positive Peace?’, Development and Change, vol. 39, no. 4 (2008), pp. 537–555. ↩︎

  3. Sarkin, ‘The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with the Genocide’, pg. 143. ↩︎

  4. Elin Skaar, ‘Understanding the Impact of Transitional Justice on Peace and Democracy’, paper prepared for 6th General Conference of European Consortium of Political Research, 25th-27th August 2011, Reykjavik, pp. 3-7. ↩︎

  5. Audrey R. Chapman, ‘The TRC’s Approach to Promoting Reconciliation in the Human Rights Violations Hearings’, in  A. R. Chapman and Hugo van der Merwe (Eds.), Truth and Reconciliation in South Africa: Did the TRC Deliver? (Pennsylvania, 2008), pg. 45. ↩︎

  6. Elizabeth Kiss, ‘Moral Ambition: Within and Beyond Political Constraints’, in R. Rotberg and D. Thompson (Eds) Truth v. Justice: the morality of Truth Commissions, (Princeton: 2000), pg. 71. ↩︎

  7. Sarkin, ‘The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with the Genocide’, pg. 143. ↩︎

  8. Ibid, pg. 144. ↩︎

  9. Mihaela Mihai, ‘Transitional Justice and the Quest for Democracy: Towards a Political Theory of Democratic Transformations’, Unpublished PHD Thesis, University of Toronto (2010), pp. 11-42. ↩︎

  10. Kiss, ‘Moral Ambition: Within and Beyond Political Constraints’, in R. Rotberg and D. Thompson (eds.) Truth v. Justice: the morality of Truth Commissions (Princeton, 2000), pg. 72. ↩︎

  11. Skaar, ‘Understanding the Impact of Transitional Justice on Peace and Democracy’, pg. ↩︎

  12. Alexander Betts, ‘Should Approaches to Post-conflict Justice and Reconciliation be Determined Globally, Nationally or Locally?’, The European Journal of Development Research, Vol.17, No.4 (2005), pp. 735 – 752. ↩︎

  13. Kiss, ‘Moral Ambition: Within and Beyond Political Constraints’, pg. 69. ↩︎

  14. Sarkin, ‘The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with the Genocide’, pg. 154. (See also Clark: 2004; Betts: 2007; Skaar: 2011) ↩︎

  15. Skaar, ‘Understanding the Impact of Transitional Justice on Peace and Democracy’, pg. 5. ↩︎

  16. Jon Elster, Retribution and Reparation in the Transition to Democracy,(New York, 2006), pg. 10. ↩︎

  17. Sarkin, ‘The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with the Genocide’, pp. 145-146. ↩︎

  18. Kiss, ‘Moral Ambition: Within and Beyond Political Constraints’, pg. 70 ↩︎

  19. Carlos H. Acuña., ‘Transitional Justice in Argentina and Chile: A Never-Ending Story?’ in Elster (Ed.) Retribution and Reparation in the Transition to Democracy, pp. 206-238. ↩︎

  20. Alex Boraine, ‘Truth and Reconciliation Commission in South Africa. Amnesty: The Price of Peace’, in Elster (Ed.), Retribution and Reparation in the Transition to Democracy, pg. 302. ↩︎

  21. Sarkin, ‘The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with the Genocide’, pg. 146. ↩︎

  22. Elster, Retribution and Reparation in the Transition to Democracy, pg. 10. ↩︎

  23. Kiss, ‘Moral Ambition: Within and Beyond Political Constraints’, pg. 70. ↩︎

  24. Sarkin, ‘The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with the Genocide’, pg. 147. ↩︎

  25. John Stuart Mill (1987) cited in Elster, Retribution and Reparation in the Transition to Democracy, pg. 11. ↩︎

  26. Tyler Cowen, ‘How Far Back Should We Go? Why Restitution Should Be Small?’ in Elster (Ed.) Retribution and Reparation in the Transition to Democracy, pp. 17-32. ↩︎

  27. Elster, Retribution and Reparation in the Transition to Democracy, pp. 325-326. ↩︎

  28. Elizabeth Stanley, ‘Evaluating the Truth and Reconciliation Commission’, Journal of Modern African Studies, Vol. 39, No.3 (2001), pg. 525. ↩︎

  29. Elster, Retribution and Reparation in the Transition to Democracy, pp. 326. ↩︎

  30. Ibid, pg. 325. ↩︎

  31. Boraine, ‘Truth and Reconciliation Commission in South Africa. Amnesty: The Price of Peace’, pg. 306. ↩︎

  32. ↩︎

  33. Boraine, ‘Truth and Reconciliation Commission in South Africa. Amnesty: The Price of Peace’, pp. 299-316. ↩︎

  34. Boraine, ‘Truth and Reconciliation Commission in South Africa. Amnesty: The Price of Peace’, pg. 308. ↩︎

  35. Jeremy Sarkin, ‘An Evaluation of the South African Amnesty Process’, in A. R. Chapman and H. van der Merwe (Eds.), Truth and Reconciliation in South Africa: Did the TRC Deliver?, pg. 94. ↩︎

  36. Stanley, ‘Evaluating the Truth and Reconciliation Commission’, pg. 529. ↩︎

  37. Kiss, ‘Moral Ambition: Within and Beyond Political Constraints’, pg. 70. ↩︎

  38. Stanley, ‘Evaluating the Truth and Reconciliation Commission’, pg. 528. ↩︎

  39. Kiss, ‘Moral Ambition: Within and Beyond Political Constraints’, pg. 74. ↩︎

  40. Marcel M. Baumann, ‘Understanding the Other’s “Understanding” of Violence’, International Journal of Conflict and Violence, Vol. 3 No. 1 (2009), pp. 107 –123. ↩︎

  41. Hugo van der Merwe, ‘What Survivors Say About Justice: An Analysis of the TRC Victim Hearings’, in Chapman and van der Merwe (Eds.), Truth and Reconciliation in South Africa: Did the TRC Deliver? Pp. 31-43. ↩︎

  42. Priscilla B. Hayner, ‘Fifteen Truth Commissions–1974 to 1994: A Comparative Study’, Human Rights Quarterly Vol. 16, No. 4 (1994), pp. 597-655 ↩︎

  43. Kiss, ‘Moral Ambition: Within and Beyond Political Constraints’, pg. 72. ↩︎

  44. Alexander Betts, ‘Should Approaches to Post-conflict Justice and Reconciliation be Determined Globally, Nationally or Locally?’, The European Journal of Development Research, Vol.17, No.4, pg. 738. ↩︎

  45. International Criminal Tribunal for Rwanda, Status of Cases. Available online (last accessed 19th April 2012):http://www.unictr.org/Cases/tabid/204/Default.aspx ↩︎

  46. Sarkin, ‘The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with the Genocide’, pg. 154. ↩︎

  47. Betts, ‘Should Approaches to Post-conflict Justice and Reconciliation be Determined Globally, Nationally or Locally?’, pg. 744. ↩︎

  48. Sonali Chakravarti, ‘The Case of Gacaca:  A Flawed Project and the Hope for Transitional Justice’, Conflict, Memory, and Reconciliation: Bridging past, present, and future,10th-13th January 2012, Kigali, pg. 3. ↩︎

  49. Sarkin, ‘The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with the Genocide’, pg. 149. ↩︎

  50. Betts, ‘Should Approaches to Post-conflict Justice and Reconciliation be Determined Globally, Nationally or Locally?’, pg. 738. ↩︎

  51. Chakravarti,  ‘The Case of Gacaca:  A Flawed Project and the Hope for Transitional Justice’, pg. 2. ↩︎

  52. Phil Clark, ‘The Legacy of Rwanda’s Gacaca Courts’, Think Africa Press, 23 March 2012. Accessed at: http://thinkafricapress.com/rwanda/kagame-stay-or-go ↩︎

  53. Ibid. ↩︎

  54. Mahmoud Mamdani in Sarkin, ‘The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with the Genocide’, pg. 149. ↩︎

  55. Chakravarti, ‘The Case of Gacaca:  A Flawed Project and the Hope for Transitional Justice’, pp. 1-31. ↩︎

  56. Allison Corey and Sandra F. Joireman ‘Retributive Justice: The Gacaca Courts in Rwanda’, African Affairs, Vol. 103, No. 410 (2004), pp. 73-89. ↩︎

  57. Betts, ‘Should Approaches to Post-conflict Justice and Reconciliation be Determined Globally, Nationally or Locally?’, pp. 735-752. ↩︎

  58. Kiss, ‘Moral Ambition: Within and Beyond Political Constraints’, pp. 81-90. ↩︎

  59. Betts, ‘Should Approaches to Post-conflict Justice and Reconciliation be Determined Globally, Nationally or Locally?’, pg. 747-748. ↩︎

  60. Betts, ‘Should Approaches to Post-conflict Justice and Reconciliation be Determined Globally, Nationally or Locally?’, pg. 749. ↩︎

  61. Max Rettig, ‘Gacaca: Truth, Justice, and Reconciliation in Postconflict Rwanda?’, African Studies Review, Volume 51, Number 3 (2008) pg. 31. ↩︎

  62. Corey and Joireman, ‘Retributive Justice: The Gacaca Courts in Rwanda’, pg. 84. ↩︎

  63. Ibid, pg. 82. ↩︎

  64. Max Rettig, ‘Gacaca: Truth, Justice, and Reconciliation in Postconflict Rwanda?’, African Studies Review, Volume 51, Number 3(2008), pg. 31. ↩︎

  65. Kiss, ‘Moral Ambition: Within and Beyond Political Constraints’, pg. 75. ↩︎

  66. Elster, Retribution and Reparation in the Transition to Democracy,  pp.8-12. ↩︎

  67. Kiss, ‘Moral Ambition: Within and Beyond Political Constraints’, pg. 68. ↩︎

  68. Stanley, ‘Evaluating the Truth and Reconciliation Commission’, pg. 533-535. ↩︎

  69. Sarkin, J ‘An Evaluation of the South African Amnesty Process’, in Chapman and van der Merwe (Eds.) Truth and Reconciliation in South Africa: Did the TRC Deliver?, pg. 115. ↩︎

  70. Hugo van der Merwe ‘What Survivors Say About Justice: An Analysis of the TRC Victim Hearings’, in Chapman and van der Merwe (eds.) Truth and Reconciliation in South Africa: Did the TRC Deliver?, pg. 44. ↩︎

  71. Phil Clark, ‘The Legacy of Rwanda’s Gacaca Courts’, Think Africa Press, 23 March 2012. Accessed at: http://thinkafricapress.com/rwanda/kagame-stay-or-go ↩︎

  72. Max Rettig, ‘Gacaca: Truth, Justice, and Reconciliation in Postconflict Rwanda?’, pg. 31. ↩︎

  73. Corey and Joireman, ‘Retributive Justice: The Gacaca Courts in Rwanda’, pg. 85. ↩︎

  74. Sarkin, ‘The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with the Genocide’, pg. 164. ↩︎

  75. Paul Kagame, ‘Preface – President Paul Kagame’, in Clark P. and Kaufman Z. (Eds.), After Genocide: Transitional Justice, Post-conflict Reconstruction and Reconciliation in Rwanda and Beyond, (London: 2008), pg. xxi. ↩︎

  76. Sarkin, ‘The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with the Genocide’, pg. 164. ↩︎

  77. Charles Murigande, former Rwandan Minister of Transport cited in Ibid, pg. 154. ↩︎

  78. Bill Rolston and Phil Scraton, ‘In the Full Glare of English Politics: Ireland, Inquiries and the British State’, British Journal of Criminology, Vol. 45 (2005), pg. 1-5. ↩︎

  79. Elster, Retribution and Reparation in the Transition to Democracy, pg. 8. ↩︎

  80. Sarkin, ‘An Evaluation of the South African Amnesty Process’, pp. 93-115. ↩︎

  81. Stanley, ‘Evaluating the Truth and Reconciliation Commission’, pg. 527. ↩︎

  82. Sarkin, ‘An Evaluation of the South African Amnesty Process’, pp. 94-96. ↩︎

  83. Ibid. ↩︎

  84. BBC News, ‘South Africa Truth Row Resolved’, 29 January 2003. Accessed at: http://news.bbc.co.uk/2/hi/africa/2705237.stm ↩︎

  85. Stanley, ‘Evaluating the Truth and Reconciliation Commission’, pg. 531. ↩︎

  86. Ibid, pp. 532-541. ↩︎

  87. UN Human Rights Committee (2009) cited in Ruth Wedgwood, ‘Paul Kagame and Rwanda’s Faux Democracy’, The New Republic, August 5th 2010. Accessed at: http://www.tnr.com/blog/foreign-policy/76786/rwanda-kagame-faux-democracy ↩︎

  88. BBC News, ‘UN report says DR Congo killings ‘may be genocide’, 1 October 2010, http://www.bbc.co.uk/news/world-africa-11450093 ↩︎

  89. Kagame, ‘Preface – President Paul Kagame’, pg. xxiii. ↩︎

  90. Chakravarti, ‘The Case of Gacaca:  A Flawed Project and the Hope for Transitional Justice’, pg. 5. ↩︎

  91. Jennifer Melvin, ‘Beyond the Veneer of Reconciliation: human rights and democracy in Rwanda’, Commonwealth Advisory Bureau, March 2012, pp. 3-6. ↩︎

  92. S. van Hoyweghen (1999) cited in Sarkin, ‘The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with the Genocide’, pg. 152. ↩︎

  93. Melvin, ‘Beyond the Veneer of Reconciliation: human rights and democracy in Rwanda’, pg.6. ↩︎

  94. Yasmin Sooka, ‘Dealing with the past and transitional justice: building peace through accountability’, International Review of the Red Cross, Vol.88, No. 862 (2006), pg 324. ↩︎

  95. Stanley, ‘Evaluating the Truth and Reconciliation Commission’, pp. 539. ↩︎

  96. Chakravarti, ‘The Case of Gacaca:  A Flawed Project and the Hope for Transitional Justice’, pp. 7-12. ↩︎

  97. Jens Rydgren, ‘The Power of the Past: A Contribution to a Cognitive Sociology of Ethnic Conflict’, Sociological Theory, Vol. 25, Issue 3 (2007), pp. 239. ↩︎

  98. Ibid, pp. 230-29. ↩︎

  99. Elster, Retribution and Reparation in the Transition to Democracy, pg. 3 ↩︎

  100. Baumann, ‘Understanding the Other’s “Understanding” of Violence’, International Journal of Conflict and Violence, Vol. 3 No. 1 (2009), pg. 110. ↩︎

  101. Clark, ‘The Legacy of Rwanda’s Gacaca Courts’. Accessed at: http://thinkafricapress.com/rwanda/kagame-stay-or-go ↩︎

  102. Africa Portal, ‘Challenges of Transitional Justice in Rwanda’, Backgrounders, No. 18 (Jan 2012) Accessed at: http://dspace.cigilibrary.org/jspui/bitstream/123456789/32530/1/Backgrounder%20No.%2018.pdf?1 ↩︎

  103. Betts, ‘Should Approaches to Post-conflict Justice and Reconciliation be Determined Globally, Nationally or Locally?’, pp. 735-752. ↩︎

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