Post-Conflict Rebuilding and International Law

Ray Murphy

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9780754629573
• eBook ISBN: 9781351909679
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This volume presents the research analysis of a range of scholars and experts on post conflict peacebuilding and international law from a variety of perspectives and missions. The selected essays show that peacebuilding, like the concept of peacekeeping, is not specifically provided for in the UN Charter. They also demonstrate that the record of peacebuilding, like that of peacekeeping, is varied and while both concepts are intrinsically linked, neither lends itself to precise definition. The essays consider the historical approaches to peacebuilding such as the role played by the UN in the Congo in the early 1960s and the work of the United States and its allies in rebuilding Germany and Japan in the aftermath of World War II. Finally, essays consider the major challenge for contemporary peacebuilding operations to make international administrations accountable and to ensure the involvement of the international community in helping rebuild communities and prevent the resurgence of violence.

Part I

Africa

[1]

TRANSITIONAL JUSTICE: A FUTURE TRUTH COMMISSION FOR ZIMBABWE?

MAX DU PLESSIS^* AND JOLYON FORD^**

* Max du Plessis is a Associate Professor at the Faculty of Law at the University of KwaZulu-Natal, Durban; Senior Research Associate, Institute for Security Studies, Pretoria; Advocate & Associate Member of the Durban Bar.

** Centre for International Governance & Justice, Australian National University.

Abstract An eventual sustained democratic transition process in Zimbabwe may include a ‘truth and reconciliation’ commission. The need for—and possible form of—any such institution is situated in a number of discussions: the balance of principle and pragmatism that peace deals sometimes require; comparative experiences in other societies and the promise and limits of institutional modelling; the dynamic between global expectations or prescriptions and ground-level exigencies; the interface of international criminal law and institutions with national-level justice processes; the content of the State’s international legal duty to afford a remedy. In considering the extent of an international normative framework limiting the justice options of transitional States, a certain margin of appreciation may be appropriate or necessary to enable a society to reconcile with its violent past on its own terms.

I. INTRODUCTION

What lessons about formally accounting for past systematic and widespread human rights abuses can Zimbabweans learn from other societies that have undergone political transition? If there is a sociological and political case for a deliberative national process of remembering, dwelling, telling, uncovering, admitting, accusing, apologising, what international legal considerations attend these questions or affect the forms that such processes might conceivably take? In 2008, and expressly in an endeavour to avoid the internationalization of criminal justice issues in a future Zimbabwe, the main opposition party have said that their transitional justice policy, if in government, would meet ‘international standards’.¹ As part of the September 2008 agreement intended to break the political deadlock that followed the March 2008 elections, the parties have agreed to ‘give consideration to the setting up of a mechanism to properly advise on what measures might be necessary and practicable to achieve national healing, cohesion and unity in respect of victims of pre- and post independence political conflicts.’² While its subject-matter relates to an evolving political context, this article is an attempt to stand back and consider the extent and content of international legal standards against which to assess any future victim-related truth, peace or justice mechanism that may be created as part of Zimbabwe’s ongoing political settlement process.

One purpose of this article is to consider the extent to which an international legal framework not only forms a backdrop to national choices on justice and reconciliation, but may shape and even constrain the institutional and procedural options available. In the context of decades of violence and impunity in Zimbabwe, and in anticipation of an eventual democratization of political life there, we reflect on a variety of comparative transitional justice experiences such as those of Argentina, Cambodia, Chile, El Salvador, Guatemala, South Africa, Sierra Leone and Timor-Leste. Three main avenues are now used to formally address injustices relating to past violence: criminal trials (sometimes wholly or partly internationalized), truth-for-amnesty commissions, and a hybrid strategy entailing both conditional amnesties and selective prosecutions. A survey of the variety of mandates and procedures adopted and practices followed in various States reveals that notwithstanding the growth of a body of ‘best practices’ and guidelines, transitional justice choices remain eclectic. Within certain limits mandated by respect for universal norms, we argue that this is not only inevitable but may (with some caution) be preferable. There are limits to the appropriateness of foreign institutional formulae for pursuing locally legitimate and relevant justice and reconciliation. Provided the State’s duty to afford an effective remedy is fulfilled, international peace-building institutions (and international law itself) currently does—and ought to—extend a margin of appreciation to transitional societies, where appropriate, to find their own ways to reconcile with the past as part of building a sustainable future peace. Comparative experience is thus simultaneously of significance and of limited utility in the design and conduct of any future institution in Zimbabwe. International legal principles certainly inform issues and available choices, but aside from the issue of purported national amnesty for international crimes, provide less by way of mandatory parameters than might be expected in relation to the content of the state’s duty to afford a remedy for human rights abuse.

In the first part of this article (sections II to IV below) we consider debates on the utility, rationale and justification of establishing ‘truth and reconciliation’ bodies. While certain precautions are noted, these generic considerations and the particular context of Zimbabwe suggest, in our view, that such a body may be one viable or commendable component of any transitional justice strategy in that country. The second part of the article (sections V to VIII below) considers the legal framework possibly affecting national transitional justice strategies. Consideration is given to comparative experiences in terms of the mandate and procedures of truth commissions, and in particular the options available in terms of amnesties from prosecution. What will become clear is that the complexity and idiosyncrasy of these issues and the range of legitimate (but often incompatible) considerations, described in the first part, is a primary explanation for the lack of evolution of a detailed, prescriptive normative framework at the international level. Those interested in promoting international transitional justice solutions are prone to asserting the existence and certainty of international standards on the forms of transitional justice despite the variety of practices followed around the world, and despite the risk that global expectations might distort local exigencies for peace and reconciliation.

Before proceeding it ought to be emphasised that a range of difficult questions will undoubtedly arise for Zimbabweans as they grapple with transition away from the crisis and the 2008 horse-trading towards a new future. These reveal that social discourse on ‘justice’ involves, but is not always reducible to, legal or doctrinal issues.³ In any interim phase, how will negotiations on ‘transitional justice’ persuade the powerful and prosecutable that it is safe to cooperate? How do we balance the need for restorative justice with solemn principles pointing to criminal trials and retributive justice? To what extent should society be looking back rather than concentrating its energies on the future? How far back does ‘the past’ really go? What is the status in law of pardons and amnesties given in the past? What would be required for future national amnesties to have international legal validity and afford immunity from prosecution? What is the place of international criminal justice mechanisms where a national process is in place? What is the relevance, utility or propriety of calls for international prosecutions? How would such a process deal—if at all—with any process on land claims between communities, or with wrongs that have a predominantly economic dimension: at least in relation to remedial measures? Can many of the intra-communal acts of violence be separated from an enquiry into questions of landholding and title? If there is ‘no peace without justice’, who can or should decide on justice? Is there a role for outsiders and, if not, who in Zimbabwe would have the moral authority to guide any process? With an economy in freefall, what priority of resources and national attention should a backward-looking process have, and what room to manoeuvre does international law allow a State in such situations?

The list of questions alone indicates the complexity of the debate. We modestly engage with these and other questions, placing our discussion of what might be drawn from comparative experiences within a wider approach which privileges seeking to solve problems according to local needs rather than becoming wedded to particular forms of institution. We consider whether local solutions nevertheless take place within the context of some degree of emerging consensus discernible on international minimum standards on truth commissions, amnesties and concurrent criminal prosecutions. It is important to comment at this stage that we do not necessarily subscribe, in reviewing options for approaches to dealing with the past, to the view that there is a need to choose starkly between ‘peace’ and ‘justice’.⁴ While there are certainly tensions between the two concepts, and often the price of peace is to accept that justice might need to be stayed against important stakeholders in the peace,⁵ there is a recognized need now to move beyond a simplistic dichotomy that presents these two ideals as mutually inconsistent objectives where there has been conflict. Some aggrieved parties will not be able to contemplate peace without justice being seen to be done. These deep and real feelings cannot be denied simply on the basis that academic scholarship has moved beyond any simple dichotomy. Nevertheless, it is often an abdication of the duty to seek imaginative, tailored solutions to simply assert that justice and peace are incompatible objectives in most transitional settings: ‘to place prosecutorial justice and the attainment of peace into opposed, abstract categories comes at the expense of an informed analysis of where tensions do, and do not, exist on the ground.’⁶

II. THE CONTEXT: POLITICAL VIOLENCE AND HUMAN RIGHTS ABUSE IN ZIMBABWE

The suggestion that a truth commission may be an important instrument for Zimbabweans in their transition from autocracy proceeds from two premises: first, that the human rights abuses that have occurred in Zimbabwe’s modern history have been widespread, persistent, serious, systemic and systematic, and attended by a pattern of amnesty and lack of remedial action; secondly, that a truth commission would be a valuable and acceptable ingredient in addressing the violations and injustice and permitting a sustainable national peace. The second premise is the topic of the next section.

In relation to the first premise, human rights abuses perpetrated, encouraged or tolerated in particular by the State and its agents since at least February 2000, and which continued to worsen through 2008, have constituted constitutional, criminal and civil wrongs in Zimbabwean law and have in any event created pain, loss, grief, distrust, uncertainty, suspicion, grievance, anger and dislocation. The period has been marked by the consistency and level of State intimidation and brutality, involving widespread victimization; the partly covert nature of direct State abuses and indirect action at State instigation; the large number of low-level perpetrators especially among the youth militias; secrecy and denial on the part of the regime; a culture of impunity reinforced by pardons and general amnesties over many years; and the lack of remedial options. These factors all suggest the need for a formal national justice mechanism accompanying (and partly enabling) any future political transition to legitimate government. These abusive practices have been fairly well chronicled (although part of the point is that much is, of course, not known or presently knowable) and are only summarized here in order to properly situate our discussion. While formal denials, secrecy and the difficulty of cataloguing cases prevents a full assessment, a number of credible sources have reported that Zimbabwe’s Government has been directly or indirectly responsible for murder, disappearances, rape, torture, beatings and other humiliating inhumane or degrading treatment, arbitrary detentions, denial of due process rights, group punishment including use of food as a political weapon, selective non-distribution of famine relief, mass displacement and forced removal, and other human rights abuses falling within well recognized ‘categories’ in international law.⁷

From the available reports it is possible to identify three groupings of widespread violations since 2000. First, beginning shortly before the parliamentary elections of June 2000, and in response to both the rising popularity of the opposition Movement for Democratic Change (MDC) and to the ZANU-PF Government’s defeat in the February 2000 constitutional referendum, Zimbabweans have witnessed nearly a decade of direct abuses on the part of the security services, as well sometimes less subtle abuses by ZANU-PF supporters and youths, with State facilitation, encouragement or instigation. Impunity has marked both sources of violence and intimidation, which have peaked in and around elections including the most recent (March and June) 2008 elections. The State and the party have been indistinguishable in Zim...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I AFRICA
• PART II EUROPE
• PART III LEGAL FRAMEWORKS AND THE RULE OF LAW
• PART IV CONTEMPORARY CHALLENGES
• Name Index