Amnesty After Atrocity?

Healing Nations After Genocide and War Crimes

Helena Cobban

• Publisher: Routledge
• Year: 2015
• eBook ISBN: 9781317263692
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

"A compelling read." Richard J. Goldstone, former Chief Prosecutor of the UN tribunals for the former Yugoslavia and Rwanda "A very important contribution." Princeton N. Lyman, Council on Foreign Relations "A powerful reminder that dealing with the legacy of wartime atrocities is not simply a matter of bringing perpetrators to justice. It also means overcoming the divisions within the society and healing the victims." Marina Ottaway, Senior Associate, Democracy and Rule of Law Project, Carnegie Endowment for International Peace In Amnesty after Atrocity? veteran journalist Helena Cobban examines the effectiveness of different ways of dealing with the aftermath of genocide and violence committed during intergroup conflicts. She traveled to Rwanda, Mozambique, and South Africa to assess the various ways those nations tried to come to grips with their violent past: from war crimes trials to truth commissions to outright amnesties for perpetrators. She discovered that in terms of both moving forward and satisfying the needs of survivors, war crimes trials are not the most effective path. This book provides historical context and includes interviews with a cross-section of people: community leaders, victims, policymakers, teachers, rights activists, and even some former abusers. These first-person accounts create a rich, readable text, and Cobban's overall conclusions will surprise many readers in the West.

1
Atrocities, Conflicts, and Peacemaking

In a bland, Scandinavian-style courtroom in a conference center in the middle of Africa, a scared farm-woman from Rwanda answers questions put to her by a black-robed attorney. It is 1997. The attorney works for Clément Kayishema, the man accused of having orchestrated the killing of many members of her family. Kayishema also sits in the courtroom, off to the left from where Agnès sits answering the attorney’s questions. The whole space is a bustle of black attorneys’ robes and strange languages.

Agnès had come to this courtroom in Arusha, Tanzania, just a few days before, traveling by plane for the first time in her life. “I was so anxious to see the powerful Kayishema in handcuffs! You would never understand how much power this man used to have in our community,” she recalled much later. Back in 1994, Kayishema had been the prefect (governor) of the western Rwanda province of Kibuye. Agnès and many other survivors of the genocide that occurred in Rwanda that year held him responsible for what had befallen them and their families.

One sunny morning in 1997, Agnès was awakened by the sound of an SUV coming up the hilly path to her home. She guessed rightly that the people in it were members of the prosecution team at the Arusha-based International Criminal Tribunal for Rwanda (ICTR). But she was surprised to learn that this would be the very day on which these court officials would whisk her off to the Rwandan capital and put her on a plane to go to Arusha to testify. She had only a few minutes to prepare for the trip. She recalled:¹

I didn’t have time to gather any clothes or other personal items. I only had time to take a quick shower. In Arusha, the other witnesses I came with and I all spent two days without clean clothes. I didn’t even have clean underwear! The officials there appeared not to care at all. It was not until the third day that they brought us some clothing.

It wasn’t only the clothing. We were generally given the kind of reception that tells you something like “Thanks for coming here, we need your testimony and now you can quickly leave.” Two of the men I had traveled with, who had also come to testify, started crying and cursing. I knew both of them, especially Karoli whose wife was killed at the church where I had taken refuge. “Let’s be calm and focus on the fight against Kayishema,” we finally agreed.

We spent several days in Arusha before going to court to testify. The moment I entered the court, I couldn’t believe that the moment I had waited for was finally only a few minutes away. But I quickly noticed something that I hadn’t thought about: there wasn’t going to be anyone from Kibuye other than Kayishema in the courtroom, listening to what I was saying—they were all strangers.

I started answering questions from the prosecutor. He was nice to me. But I couldn’t stop thinking that the man questioning me and the judges listening most likely didn’t understand what genocide is. They would never understand it since they were not there. No matter how much, and how, I explained it to them.

Once it came to Kayishema’s lawyer’s turn to question me, he was deliberately working on humiliating me and injuring my feelings. He asked me questions like “How come you survived if Tutsis were being killed?”—as if the fact that I was alive meant that my testimony on the massacres of Tutsis was false.

Agnès comes from a country that uses the civil-law system. There, the questioning of witnesses is generally done by the judges and is much less adversarial than in the Anglo-American (common-law) system, so the experience of hostile cross-examination she had at the Arusha court came as a shock to her.²

Other aspects of her experience at the court upset her considerably, too:

Kayishema was sitting about ten meters away from me on the left side of the courtroom, in the row behind his attorney. There he was, smartly dressed in an expensive suit. He also appeared very healthy. It never occurred to me that a detainee would look like that. He looked the same! Nothing had changed from when I had last seen him.

Then came one of my worst experiences of the entire trip. As I answered questions from his defense lawyer, Kayishema tapped his mouth with his hand exactly the same way the interahamwe [the militias who carried out the genocide] did while making a special clicking noise that they made whenever they flushed Tutsis out from a hiding place.

My blood suddenly ran cold. I could see the militias again. I could see blood.

Although this event had occurred some years ago, in recalling it Agnès covered her face with her hand as though blocking from sight the scary part of a horror movie. She said that Kayishema continued to do the same thing each time she looked in the direction of where he was sitting.

After the morning break, I told the prosecutor about it but it seemed he didn’t understand what I told him.

It appeared to me that Kayishema and his defense team ruled that courtroom. The defense asked me all kinds of irrelevant questions with rare intervention from the judges. When Kayishema wasn’t tapping his mouth with his hand, he looked at me as if he was wondering how come I had survived him and his henchmen.

Still, I was contented to be finally telling what he did. But I kept imagining, “How I wish this trial was taking place in Kibuye!” How I wish I had testified in front of the people of Kibuye whom he wronged, and not an audience made up of only foreigners. I felt like walking up to his chair, grabbing him, and bringing him with me to Rwanda.

Dealing with the Aftermath of Atrocity

The court in which this survivor of Rwanda’s early 1994 genocide appeared was established in November 1994 at a meeting of the UN Security Council in midtown Manhattan. Thirteen of the Council’s fourteen members, including all five of the veto-wielding “Permanent Members,” supported the resolution that created ICTR. Outside the Security Council’s famous circular chamber, leaders and activists in the worldwide human rights movement were delighted. They saw the court’s establishment as helping to mitigate the “guilt” of the United Nations for having failed to do anything effective to stop the Rwandan genocide while it was still under way.³ Rights activists from around the world also saw ICTR’s creation as one more hopeful step toward building a world in which many of the pious, rights-related resolutions adopted by the United Nations over preceding decades could finally start to be enforced. ICTR was created just eighteen months after the United Nations had established its first ad hoc criminal tribunal, “ICTY,” the court dealing with atrocities in former Yugoslavia. In the years after 1994, the work of these two tribunals added great momentum to the worldwide campaign for the creation of a permanent International Criminal Court (ICC), which came into existence in June 2002.⁴

At the same time that ICTR was starting its work in late 1994, two other African nations were also struggling to deal with the legacies of recent, atrocious political violence; and the approaches they used as they faced this task were very different from the prosecutorial, criminal-justice approach that the United Nations used in response to the genocide in Rwanda. Most crucially, these two other countries—South Africa and Mozambique—were each offering a version of amnesty to those who had committed acts of politically motivated violence against their fellow citizens. In South Africa, this amnesty was offered through the country’s much-hailed Truth and Reconciliation Commission (TRC), which gave it to all those perpetrators of past, politically motivated violence who could convince the TRC that they had provided a full and truthful record of all the political violence in which they had participated, or of which they had knowledge. What were on offer in South Africa, therefore, were individual and very conditional amnesties: amnesty in return for truth-telling.

In Mozambique, the type of amnesty the government gave to all who had committed inhumane acts during the atrocious civil war that ended in 1992 was very different. It was a blanket amnesty that covered all the numerous misdeeds committed by Mozambicans against their compatriots during the fifteen-year civil war. Those misdeeds included many of the worst kinds of violations associated with civil wars around the world: mass killings, mutilations, the impressment of children as soldiers and sex-slaves, the use of mass starvation as a political weapon, large-scale forced relocations of persons, and so on and on. But in 1992, in a single sweeping act that was unanimously supported by the country’s parliament and endorsed by nearly all of its people, a veil of silence and intentional forgetting was formally laid over all those deeds.

Mozambicans, who live in one of the world’s very poorest countries, then turned their attentions to trying to build a new future for their nation. The era of violence, they firmly told each other and interested outsiders, was now definitely past. And the UN position on this? The Mozambique peace agreement had been concluded in October 1992, just four months before the United Nations established its first ad hoc court (the one for former Yugoslavia), so there was still no precedent for the world body to oppose, or even express disapproval of, the country’s amnesty. Indeed, the United Nations provided essential financial and logistic support for the Mozambique amnesty by funding stipends and retraining programs to help 90,000 former combatants there to reintegrate into civilian life. Many of those who received these UN stipends were undoubtedly the very same people who had committed the war-time atrocities. But no one ever made any attempt to screen former perpetrators out of the UN-run demobilization programs.

International rights organizations based in rich Western countries had worked hard and effectively in the years preceding the South African and Mozambican settlements to uncover, document, and publicize all they could of the atrocities committed in those countries. And when each of these countries adopted a political settlement that involved widespread amnesties for perpetrators of past misdeeds, the rights organizations expressed their displeasure very vocally. Allowing amnesties for people who had perpetrated such atrocities would, they argued, merely perpetuate the climate of “impunity” that in too many parts of the world allowed malefactors to get off scot-free and thus prepared the ground for further commission of atrocities.

These are issues of deadly seriousness. Over the past century, scores of millions of people in different places around the world have been killed, maimed, or scarred for life in acts of atrocious political violence. Very often, that violence has been spearheaded, organized, or at least condoned by the very national leaders that should—under one increasingly widespread understanding of the term “national sovereignty”—bear the primary responsibility for protecting their citizens’ well-being. Too often throughout centuries past, these abusive leaders did indeed enjoy a seeming impunity from any meaningful reckoning: This impunity was upheld, on the one hand, by a version of realpolitik that often cowed critics from inside and outside the countries in question, discouraging them from confronting the malefactors openly about their misdeeds, and, on the other hand—at the international level—by adherence to a long-held interpretation of the concept of sovereignty that left every national-level ruler quite free to treat his own “subjects” exactly as he pleased.

Throughout the latter decades of the twentieth century, international rights activists—many of them inspired by, and seeking to replicate, the achievements of the 1945–1946 Nuremberg Tribunal in Europe—urged that the first order of business in postatrocity situations should be to launch criminal prosecutions against as many as possible of at least the higher-level suspects accused of responsibility for those acts—and also, to disallow any provision of amnesties to such persons. But now, a dozen years after the settlements in Mozambique, Rwanda, and South Africa, it is possible to re-examine that approach to the challenge of dealing with the legacies of past atrocities. Specifically, it is possible to compare the effectiveness of the prosecutions-based approach, as used in the case of postgenocide Rwanda, with that of the very different approaches used in South Africa and Mozambique. This book represents a first attempt at doing this. It also explores a number of key subquestions:

• Has the prosecutorial approach, as used in Rwanda,⁵ actually contributed to healing the wounds of the past—especially, and crucially, by preventing the re-eruption of iterations of the earlier forms of violence? Or has it instead perpetuated and exacerbated past differences among human groups?
• How, indeed, should we start to list the broader social and political goals at which criminal prosecutions or any other approach to dealing with the legacies of atrocious political violence should aim?
• How should we weigh the differing values of these goals, if it becomes clear that trade-offs are necessary among them?
• How may we start to compare the effectiveness of these different approaches in meeting the listed goals?
• Who should it be that makes these judgments regarding the expected effectiveness of the different kinds of policy approach, and the resulting decisions regarding which particular policy or mix of policies to adopt? Most important, should these decisions be taken at the national, the international, or some other level?

It is very important to emphasize here that the kinds of atrocities with which this book—as well as the entire emerging body of “international atrocities law”—is concerned are acts that are committed in conditions of deep-seated political conflict, and not in circumstances of broad political agreement and social peace. It is true that individual psychopaths, or small groups of psychopaths, can exist and perpetrate grisly acts of torture or mass murder in any kind of society, even the most settled ones. But a situation in which such psychopathic or sociopathic behavior becomes widespread and deeply ingrained is always one of serious political conflict, whether the atrocities in question are committed by an entrenched dictatorial regime facing (or merely fearing) political challenges to its power, or by government operatives, poorly trained militiamen, or insurgent forces in a situation of outright civil war. If, therefore, the members of the affected communities are to gain assurance that the atrocities will be definitively stopped, then the political dissonances underlying their perpetration will always also need to be understood, addressed, and rectified.

The “who decides?” question mentioned above also needs underlining. It was particularly salient in the case of Rwanda. I noted earlier that when the UN Security Council voted on the resolution that established ICTR, only thirteen of the Council’s fourteen members voted “aye.” The fourteenth member was Rwanda itself, whose postgenocide government happened to be one of the nine UN members holding a rotating seat and a full vote in the Council that year. Rwanda’s ambassador at the United Nations, Manzi Bakuramutsa, did not merely abstain from voting on the resolution in question; he voted against it. In the discussion that preceded the voting he gave several reasons for his opposition. They included the facts that the resolution mandated that ICTR be established outside Rwanda, that it not be empowered to impose capital punishment, and that in addition to trying cases of alleged genocide it should try cases of alleged war crimes and crimes against humanity. (These latter kinds of charges—unlike that of genocide—were ones that could credibly also be brought against individuals allied with the postgenocide Rwandan government itself.)

But the rest of the Council’s members were determined to go ahead. So they simply overruled the Rwandan government’s reservations and went ahead and established the court, regardless.

South Africa

In late April 1994—just as the thirteen-week-long frenzy of genocidal killing inside Rwanda was reaching its height—South Africa’s 40 million people were joyfully taking part in the first one-person-one-vote election ever held in their country.

The violence inflicted prior to that historic occasion on the 88 percent of South Africa’s citizens who were not “White” had been different in many respects to that suffered by Rwanda’s Tutsis during the genocide. South Africa’s Blacks, Coloureds, Indians, and other non-Whites had suffered for four centuries from intense colonial violence that involved mass killings, dispossession, enslavement, ethnic cleansing, and many other forms of serious, “classic” colonial rights abuse.⁶ More recently, they had been oppressed by more than four decades of the more “modern,” systematized form o...

Table of contents

• Cover Page
• Half-Title Page
• Amnesty After Atrocity?
• Title Page
• Copyright Page
• Table of Contents
• List of Acronyms
• Preface
• 1 Atrocities, Conflicts, and Peacemaking
• 2 Rwanda: Court Processes After Mass Violence
• 3 South Africa: Amnesties, Truth-Seeking— and Reconciliation?
• 4 Mozambique: Heal and Rebuild
• 5 Comparing Postconflict Justice in Rwanda, South Africa, and Mozambique
• 6 Restoring Peacemaking, Revaluing History
• Notes
• Name Index
• Subject Index