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Amnesty After Atrocity? - Helena Cobban


We present Chapter 6, “Restoring Peacemaking, Revaluing History,” from Helena Cobban’s important, and deeply moving, new book, Amnesty after Atrocity?, in which this veteran journalist and blogger “examines the effectiveness of different ways of dealing with the aftermath of genocide and violence committed during deep 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 these societies forward and satisfying the needs of survivors, war crimes trials are not the most effective path. . . .” [Ed.]



Restoring Peacemaking

In the first half of the 1990s the three countries studied in the present work all made significant attempts to escape from grave intergroup conflict. Mozambique did so with the General Peace Agreement of October 1992; South Africa, with the holding of the democratic elections of April 1994; and Rwanda, at the time of the RPF’s victory over its adversaries in July 1994. The twenty-one-month period spanning those events was significant in international politics because it saw the establishment of the first international criminal court since the International Military Tribunals for Germany and Japan had completed their work, 45 years earlier. The Security Council’s creation of the International Criminal Tribunal for Yugoslavia (ICTY) in May 1993 was the significant first achievement of a campaign maintained by influential, Western-based human rights advocacy groups around an agenda that stressed what American legal scholar Diane Orentlicher has called the “duty to prosecute” the perpetrators of atrocities.1 As noted previously, when the Security Council established ICTR in November 1994, it built directly onto the institutional and jurisprudential framework already established at ICTY.

Orentlicher, British attorney Geoffrey Robertson, and other legal thinkers working in prosperous and settled Western countries have contested the notion that offering amnesties during peace negotiations may bring something of value to men and women seeking to escape from a climate of atrocity. These scholars have argued that the risk that such amnesties will foster a “climate of impunity” and thus allow the continued commission of atrocities, or their resumption after a brief hiatus, is so great that no peace that is won through the granting of amnesties can be considered valuable—or, indeed, secure.

The evidence presented in this book challenges those arguments. In particular, the experiences of South Africa and Mozambique in the dozen years after their conflict termination events of the early 1990s show clearly that an amnesty-reliant peace agreement does not always foster (or more accurately, prolong) a “climate of impunity.” On the contrary, such a peace agreement can, if well crafted, mark a clear turning point between the conflict-riven and impunity-plagued climate of the past and a new, much more peaceable social climate in which human rights that have long been trampled on can finally start to be ensured and the basic norms of the rule of law—including the end of impunity for all persons, however powerful—can start to be respected. It is worth noting very forcefully here that in situations of classic warfare or other grave intergroup conflict, none of the human rights of civilians in the territories affected, including rights as basic as those to life or the physical integrity of persons, can ever be ensured. Indeed, in conflict zones the entire panoply of human rights articulated in the Universal Declaration on Human Rights and its two attendant Covenants are under constant assault. This simple truth about warfare and other forms of grave conflict seems to have escaped the attention of too many Western-based rights activists in recent years.

Meanwhile, the experience of Rwanda since 1994 stands in stark contrast to those of Mozambique and South Africa. It indicates that pursuing a rigorously interpreted “duty to prosecute” can all too easily perpetuate deep-seated social and political cleavages, keeping in place a situation in which fundamental human rights continue to be denied and threatened on a massive scale.

Traveling in Mozambique in 2001 and 2003 I heard over and over, from people in all ranks of society, expressions of great satisfaction with the peace agreement their political leaders had concluded in 1992, and horror at the thought that anything might happen in the country to reignite the violence and turmoil of the war years. To them, the post-1992 peace most evidently was its own dividend; and though their country was still plagued with many problems—including many stemming from its generations-long impoverishment—I found no Mozambicans who thought that their situation had been at all better during the war. They all seemed to highly value the fact that the continuing disagreements between their politicians could now be mediated through parliamentary mechanisms rather than through armed conflict (though I did hear from some Mozambicans the same kind of criticisms of the pretensions and alleged corruptibility of their politicians that one hears from citizens in many other democracies). The concept of the rule of law seemed to be broadly respected and generally implemented in Mozambique. One example: In November 2000 a noted journalist, Carlos Cardoso, was murdered while researching a story about fraud at a state-run bank; but in 2003 two businessmen and a former manager of the bank were convicted of having contracted the killing, along with three other men for having carried it out; all received lengthy prison terms.2 The major problem that groups such as Amnesty International and Penal Reform International noted with respect to rights observance in Mozambique in the early years of the new century had to do much more with the general impoverishment of society, and the accompanying lack in government institutions such as prisons of even the most basic tools or amenities needed to do an acceptable job, than with the existence of a “climate of impunity” or the absence of the rule of law.

Visiting South Africa, also in 2001 and 2003, I found a similarly palpable (though slightly less universal) sense of relief that the long-running conflict over political equality within the country had finally been resolved at the political level in 1993–1994—though in South Africa, too, many other important parts of the human rights agenda, particularly in the economic sphere, still needed considerable attention. In South Africa, more evidently than in Mozambique, there had been some citizens who in the period after their “transition event” of the early 1990s felt they had lost out under its terms. These were primarily members of the White community who, even if not perpetrators of the atrocious violence on which the apartheid system had been built, had nevertheless been well-rewarded beneficiaries of the system. After 1994, the country’s White citizens retained the economic and educational capital they had accrued over preceding generations, but from then on they lost access to all the special, preferential benefits they had hitherto enjoyed simply by virtue of their racial classification. Indeed, after 1994 they found themselves exposed to demands for “affirmative action” rectifications in several spheres of national life. But very few of even those Whites who felt disgruntled with the post-1994 order ever seriously proposed restoring the blatant inequalities of the past and thus risking a re-ignition of the violence of the apartheid years. A far more common reaction of disgruntled Whites was to (re)emigrate to other countries where they hoped not to be exposed to the same demands for affirmative action that they faced in South Africa.3 Most White South Africans, meanwhile, continued to do fine (some even experienced new opportunities for prosperity in their newly democratic country), although, like all the country’s citizens, they were affected by the post-democratization crime wave and a small number of White South Africans found themselves experiencing a level of poverty previously unknown in their community for a couple of generations. (During the same period, a much larger proportion of the country’s non-White citizens continued to find themselves trapped in the same deep, structural poverty and crime-ridden communities in which their forebears had lived for several generations past.)

In South Africa, as in Mozambique, a number of important rights protection issues evidently remained to be worked on ten years after the transition. These issues had particularly to do with ensuring the basic economic and social rights of all citizens, but also with preventing police brutality. Human Rights Watch reported with respect to South Africa that “[f]rom April 2003 to March 2004 . . . a statutory oversight body received reports of 383 deaths in police custody.”4 Meanwhile, as noted in Chapter 5 (Table 5.3), the records kept by Freedom House (FH) showed that in South Africa, as in Mozambique, the aggregated ratings of the country’s political rights and civil liberties had registered a significant improvement between 1994 and 2006: by a total of six points (out of a possible seven) in the case of South Africa, and by four points (out of a possible nine) in Mozambique. In Rwanda, meanwhile, the FH ratings showed no change at all between 1994 and 2006. They remained mired near the bottom of the FH charts and earned the organization’s summary judgment that the country was still “not free.”

When I visited Rwanda in 2002, the Rwandans whom I met were unanimous in expressing relief that their country was no longer living in the horrific maelstrom of violence that had beset it in 1994. But many Rwandans still seemed extremely fearful—either of a recurrence of violence broadly similar to that which erupted in 1994, or of the eruption of some other form of atrocity-laden mayhem.5 Meanwhile, inasmuch as President Kagame had significantly consolidated the RPF’s hold over all of the country’s institutions, the norms of the rule of law were not even on their way to being respected. In early 2005, Human Rights Watch noted:

In 2004, the RPF further reinforced its control by attacking civil society organizations, churches, and schools for supposedly disseminating “genocidal ideology.” Authorities arrested dozens of persons accused of this crime.

Judicial authorities carried out a sham trial of a former president and seven others, but few other trials. Tens of thousands of persons remained jailed on accusations of genocide, some of them detained more than ten years. .  .  .

In the course of reforming the judicial system, authorities obliged judges and judicial personnel, more than five hundred of them, to resign. Fewer than one hundred were reappointed to positions in the new system. During [2004] nearly half the 106 mayors were also obliged to resign.6

With Kagame’s RPF still able to manipulate, undermine, and control all the country’s national institutions at will, the climate of impunity reigned supreme.

In short, an insistence on prosecutions, such as was actively pursued for a number of years in post-genocide Rwanda but had been consciously eschewed by both South Africa and Mozambique, seemed not to have helped Rwanda to escape from impunity and establish a general respect for the rule of law. On the contrary, the two countries that had used amnesties ended up with many more significant improvements in their assurance of and general respect for the rule of law!7 Clearly the paradigm posited by Orentlicher, Robertson, and others, whereby allowing amnesties necessarily leads to fostering a climate of impunity and thus to a failure to establish the rule of law, needs considerable reexamination. I submit that what is wrong with this model is that it is fundamentally apolitical. Specifically, by focusing on such purely technical legal aspects of these situations as a “duty to prosecute,” it neglects the broader political context within which decisions to prosecute or not to prosecute are always taken; and this broader context is particularly crucial in countries experiencing the kinds of grave intergroup conflict in which, in the modern age, a very high proportion of atrocities—including all those described and discussed in this book—have actually been committed. Above all, it ignores the need for an intentional and successful politics of peacemaking.


Negotiations Versus the Temptations of Victory

In the late 1990s, after the generally acknowledged success of South Africa’s amnesty-reliant TRC had posed a first significant challenge to those who advocated the “duty to prosecute,” there were many earnest discussions among (primarily) liberals and rights activists in Western-cultured countries over how the possibly competing interests of “truth” and “justice” could somehow be reconciled.8 (Justice, in this context, was nearly always understood to denote only the narrow procedural issue of the pursuit of criminal prosecutions rather than anything broader such as, for example, distributive justice or the assurance of fundamental human rights and liberties.) What nearly all of those discussions failed to pay much heed to, however, were the interests of “peace”—that is, the interests of both peacemaking and longer-term peace-building—in situations of atrocity-wracked intergroup conflict. Indeed, the present work has amply illustrated the fact that the commission of all the kinds of atrocities that are recognized in current international law (war crimes, crimes against humanity, and genocide) always takes place in circumstances of deeply rooted and violent intergroup conflict, whether at the international or intrastate level. Any strategy, therefore, that seeks to put in place a situation in which women and men can have credible assurance that atrocities will no longer be committed should be based on successful strategies for ending the desire of the parties to these conflicts to continue to pursue them through violent means. This requires success both in peacemaking and in longer-term peace-building. By peacemaking I mean a policy that seeks explicitly to resolve the deep political differences that lie at the root of the conflict in question and puts in place a sustainable and fundamentally egalitarian political order in which those political differences that will inevitably remain, or will emerge over time, can be resolved through nonviolent, noncoercive means. By peace-building I mean a set of policies in different spheres that aim at transforming public attitudes and social and economic relationships in ways that will sustain the noncoercive, post-conflict political order.

In both Mozambique and South Africa, the requirements of peacemaking were identified, clarified, negotiated, and then agreed upon during the course of the four-year peace talks that brought about those countries’ signal “conflict termination events”: in Mozambique, the October 1992 conclusion of the General Peace Agreement (GPA), and in South Africa, the holding of the April 1994 elections. Beyond peacemaking, each of those negotiations also gave the leaders of the conflicting parties a good opportunity to address many key items in the longer-term peace-building agenda. Crucially, it gave the negotiators themselves—who were high-ranking representatives of the contending parties—the opportunity to experience for themselves and then model for (and explain to) their respective home constituencies the kinds of transformations in attitudes toward “the other” that could help to reframe the relationships among the relevant social groups on a much more respectful and constructive basis. It also, equally crucially, allowed the negotiators and the leaders and broader social movements to whom they reported the time they needed to work through the two processes of (1) envisioning how a new social-political order based on political equality might be fashioned in practice and (2) understanding what kinds of accommodations their own party would need to make if it wanted to allow such an order to be built. In the process of these negotiations, therefore, not only were the fundamental political terms of conflict termination agreed upon, but considerable work was also done in preparing the social and psychological ground for the cooperative (or at least non-antagonistic) relationships of the post-conflict era.

The parties did not reach agreement on absolutely everything in the course of these pre-transition negotiations. For example, in South Africa, they agreed to defer until later the fashioning of the full, final version of the country’s democratic Constitution (as well as the exact procedure whereby the promised amnesties for apartheid-era rights abusers would be granted). They also agreed to defer resolution of some of the thorniest issues having to do with the long-standing claims of non-Whites to land and other resources that had been expropriated from them over the preceding centuries. But in South Africa, as in Mozambique, in the course of the pre-transition negotiations each of the conflicting parties certainly did give up a lot of its previous claims, arguments, and strong social and political predispositions—in the interests of allowing the peace process to succeed. In a real sense, therefore, we might say now (though it may not have felt like that to many of the stakeholders at the time) that the South Africans and Mozambicans ended up being relatively lucky that the conflicts that had burdened their countries for so long were not resolved through the outright victory of one side over the other, since it was precisely the years-long period of negotiations that allowed the parties to these conflicts to work together to craft a shared vision of a form of egalitarian citizenship with which both (or all) of the previously contending parties felt they could live throughout the decades to come.

The people of Rwanda were not so “lucky.” From this point of view, the outright military victory that the RPF won in July 1994 could even be seen as something of a burden for their country, since any party that wins such a victory faces the huge temptation of thereafter being able to impose a vindictive form of “victors’ justice” on its former foes; and the RPF was no exception to that rule. It takes a high degree of political vision, self-discipline, and basic self-confidence to intentionally stand aside from pursuing such a policy. The widely varying records of the victorious Allies at the close of the two World Wars of the twentieth century are instructive in this regard. After World War I, the Allies imposed a harshly punitive settlement on the defeated Germans—and the outcome of that, in Europe, was the emergence of Nazism from the bosom of the humiliated and embittered German citizenry. Then, less than thirty years later, Allied statesmen for whom the whole record of the Treaty of Versailles and its tragic consequences was still a vivid object lesson took a markedly different path. Instead of seeking once again to impose broad punishment on all the German people, the leaders of the Western Allies (if not their counterparts in Moscow) pursued a policy that aimed broadly at rehabilitating Germany while radically refashioning it as a country committed to the norms of tolerance and democracy. It was in that broader political context of strategic restraint toward Germany that the Allies organized the Nuremberg Trials, which were an exercise designed, in the words of Chief Prosecutor Robert Jackson, to “stay” the hand of vengeance much more than to extend it.

It has been noted at various points throughout this book how strongly those who made some of the crucial decisions described herein—particularly those involved with ICTR and, in a different way, those in South Africa’s TRC—tended to look to the record of the Nuremberg Trials as providing the key, groundbreaking precedent whose work (or key aspects of it) they were seeking to emulate and build on. The record of those trials has stood as an icon for many Western liberals and human rights activists since 1945, and especially since the end of the Cold War in 1991. However, the aspect of the Nuremberg Trials that most of these people have focused on has been their proactive “breaking of new ground” in the practice and jurisprudence of international criminal law—that is, by using a fairly narrow, technical legal lens through which to view them rather than by locating them within the broader political approach to the governance of occupied Germany of which they were a part, which (as noted above) was an approach marked primarily by strategic self-restraint. Historian Bradley F. Smith has provided a clear description of how, during the key weeks in the late summer and fall of 1944 when the Roosevelt administration was trying to decide how to govern Germany after the increasingly imminent victory in Europe, Secretary of the Treasury Henry Morgenthau, Jr.—who favored an extremely punitive policy toward Germany—lost the battle of influence to Secretary of War Henry Stimson, whose basic approach was one of self-restraint aimed at the later rebuilding of Germany along democratic lines.9

As secretary of war, Stimson had direct governmental responsibility for the administration of all foreign territories over which the U.S. forces came to exercise military occupation; and after Roosevelt’s death in April 1945 he continued to exercise that responsibility under President Harry S Truman. It was lawyers working in Stimson’s War Department who drew up the London Charter for the Nuremberg Trials. Stimson picked the two American judges on the court (Francis Biddle and John Parker) as well as its chief prosecutor (Jackson). And the US military, which reported to Truman through Stimson, then made all the administrative arrangements for the court’s work. Writing in 1977, historian Smith concluded his detailed description of the court’s achievements by focusing not on the “groundbreaking” advances in international jurisprudence that it achieved but on the “caution” and “moderation” that marked the work of its judges.10

The geopolitical context within which the Nuremburg court was operating cannot be stressed too heavily. Because of the devastation that all the U.S. European allies had suffered during the war, Washington was clearly the commanding actor in determining the policies of the first few years of the occupation of Germany. Moreover, in Europe—unlike in East Asia—the victorious Allies never had to negotiate a surrender from their defeated foes, since the national command authorities in Germany collapsed nearly completely under the weight of the Allies’ final advance. As a result, Stimson and the administration he represented were in a position to enact victors’ justice in the portions of Germany they controlled in just about any way they chose.11 And as noted above, the way they chose to deal with their defeated foes was marked at the broad political level, as well as in the specifics of the work of the Nuremberg judges, by “caution” and “moderation.”

In Rwanda, forty-nine years later, the victorious party in the war there also won an outright military victory over its foes that involved no formal surrender and no element at all of negotiation. Like Presidents Roosevelt and Truman, President Kagame was in a position to enact almost any form of victors’ justice that he might choose in the country that came under his undiluted control. He and his well-disciplined RPF forces evidently chose not to engage in wide orgies of retributive killings inside Rwanda. But they showed far less restraint in neighboring DRC. Meanwhile, inside Rwanda, Kagame—cheered on by the Western liberals with their cries about the “duty” to prosecute—put in place a prosecutorial and mass detentions policy that was far less restrained and less forward-looking than the policies that Stimson’s War Department had pursued in Germany a half-century earlier. Indeed, Kagame’s policies of broad collective punishment of the Rwandan Hutus seemed to have much more in common with the Allies’ approach to the conquered community after World War I than with that pursued by Henry Stimson’s War Department in and after 1945.



Prosecutions, Opportunity Costs, and Peace-building

How does the issue of launching (or refraining from launching) criminal prosecutions of alleged perpetrators of atrocities affect the processes of peacemaking and peace-building? It can do so in a number of ways. First, the offering of amnesties is often, as in Mozambique or South Africa, the only way that a negotiated transition out of a deep-seated conflict can be effected. This price is often—in many countries around the world today as in Abraham Lincoln’s United States—seen as one that is worth paying in the broader interests of conflict termination. Second, at a wider level, amnesties can frequently be part of a process of broadening political inclusion. The language of criminalization (bandidos armados, etc.) is most often the language of political exclusion; and the policies that flow from implementing such language tend to be policies of political exclusion, divisiveness, and polarization, rather than of inclusion. By deliberately foreswearing both the language and practice of political exclusion, amnesties can make a huge contribution to the interests of long-term peace-building.

It is true that there may be some circumstances in which using the language of criminalization might perhaps help “prod” reluctant parties toward a political settlement. For example, did the UN stigmatization of South Africa’s practice of apartheid as “a crime against humanity” help persuade the country’s White rulers to reach the judgment they eventually made that they needed to enter serious negotiations with their non-White countrymen? Or, did it make them feel they were being “forced into a corner” and thus lead them to stiffen their resistance to democratization? In 2005–2006, will the ICC’s pursuit of cases in Darfur or Northern Uganda help persuade the parties to these conflicts to negotiate?12 Much more research is needed on such essentially political/ diplomatic issues. However, any explicit use of criminalizing language in a situation of potential conflict-ending negotiations should surely be extremely judicious, in order to avoid stiffening the resistance of the targeted parties against the idea of entering or continuing in the negotiations. Care should also always be taken to apply such language and any attendant threats in a politically quite even-handed way, in order to strengthen long-term support for the norms of the rule of law.

One final, very important point with regard to the decision to use or to foreswear the option of criminal prosecutions in post-atrocity situations: Everyone needs to be aware that undertaking criminal prosecutions, if it is to be done in a legalistically and more broadly politically credible way, is an incredibly expensive project, and that there are very high opportunity costs to doing this. These costs affect not just finances but the peace-building agenda itself.

Based on the figures given in Chapter 5, the “per-case” processing cost for adopting various different kinds of policy toward suspected or actual former perpetrators of violence can be roughly calculated as shown in Table 6.1. This listing reveals the stunning disparity of per-case costs between those incurred by ICTR and those incurred by all the other programs mentioned. Nor was it just the per-case cost at ICTR that seemed wildly disproportionate; the global cost of establishing and running the court—over $1.1 billion by the end of 2005—was a sum that, had it been differently used, could have made a substantial difference to the long-term economic and social well-being of Rwanda or any of a number of other very vulnerable, very low-income countries. For example, the entire amount of overseas aid invested in Rwanda’s 8.8 million people in 2003 was $331.6 million, and the amount invested in Burundi’s 3.7 million people was $224.2 million. How much more stabilization and how much less human misery might the citizens of Rwanda and Burundi have known if ICTR’s budgets for the preceding years had been spent, instead, on supporting economic and social stabilization programs in one or both of those countries? But the very high financial opportunity costs involved in, in effect, taking $1.1 billion out of the available international aid budget and pouring it into sustaining an extremely high-cost and low-efficiency war crimes court in Arusha have seldom been mentioned in all the flood of articles in Western publications about the court’s “jurisprudential breakthroughs.”13

Meanwhile, study after study of the needs and preferences of people living in postconflict, post-atrocity societies show that economic and social stabilization has been their main priority. In Rwanda, an opinion survey conducted in June 2000 indicated that 81.9 percent of respondents identified “Poverty/economic hardships” as a major social problem. (The next most frequently named problem was specified by only 20.8 percent of respondents. It was “insecurity.”)14 Eric Stover and Harvey M. Weinstein summarized the results of the detailed survey research they organized in Rwanda, Bosnia, and Croatia in 2000–2002 by noting: “Our informants told us that jobs, food, adequate and secure housing, good schooling for their children, and peace and security were their major priorities.”15 My own respondents in Rwanda, South Africa, and Mozambique all stressed the absolute centrality of economic stabilization to the success of the post-conflict peace-building project.

In this regard, too, there is a strong resonance with the record of peace-building efforts in twentieth-century Europe. The post–World War I settlement there, pursued under the general rubric of “punishing” Germany for its role in the just-finished war, intentionally kept Germany trapped in deep poverty for a number of years, thereby inadvertently contributing to the rise of Nazism. By contrast, the years after 1945 in West Germany (but not East Germany) saw a large-scale infusion of U.S. aid and investment under the Marshall Plan, and then the establishment by France and West Germany of the European Coal and Steel Community, which formed the core of the later European Union. Both those steps helped to rebuild Germany as a stable economic powerhouse, and by the late 1950s a reemergence of war between those two centuries-long antagonists, France and Germany, had come to seem unimaginable. It still does.16

Meanwhile, it is clear in the early years of the third millennium that a high proportion of the atrocities still being committed in different parts of the world are occurring in the context of conflicts being pursued in some of the world’s most deeply impoverished nations. In many of those countries, including those referred to in cavalier fashion as “failed states,” there is an apparent vicious circle at work in which grave conflict wrecks the social and physical infrastructure needed to sustain livelihoods, and the dashing of the expectations of many people—especially young people—that they might be able to find a sustainable livelihood in the civilian world then continues to fuel the conflict and all its attendant lawlessness and violence.

Given, then, the absolute centrality of economic stabilization to post-conflict peace-building, it seems clear that we cannot neglect the opportunity costs incurred at the financial level by the pursuit of a very expensive project like that of launching extensive programs of criminal prosecutions. There are other, more purely political, opportunity costs at stake, too. The chapters in the present work that describe the post-conflict period in Rwanda show clearly that the pursuit—by both ICTR and the Rwandan government—of criminal justice proceedings had a strong effect in keeping the Tutsi-Hutu cleavage alive and wide, and thus in perpetuating political tensions within the country (and in the DRC). Was this a function solely of the “one-sided” nature of all these proceedings? Probably not. The Nuremberg trials, after all, had been extremely one-sided—but in their case the tightly limited number of those charged, and the fact that the trials were embedded in a broader project of the social and political rehabilitation of Germany, mitigated, and eventually overrode, any longer-term effect they might have had on fueling anti-Allied feeling among Germans.

In addition, more recently, we have seen the contrasting example of a court where “multisided” prosecutions have been undertaken in a (problematically) post-conflict context. This is ICTY, whose caseload has included prosecutions against Serbs, Croats, and Bosniaks. But even there, the “multisided” nature of the caseload has apparently not enabled the court to make any significant contribution to intergroup reconciliation in former Yugoslavia. Reporting on a late-2003 visit to Serbia, Croatia, and Bosnia, the veteran Balkan affairs analyst Tim Judah wrote, “In Serbia, Croatia, and Bosnia . . . I met virtually no one who believed that the tribunal was helping to reconcile people.”17 Harvey Weinstein and his colleagues, who researched attitudes among Croats, Bosniaks, and Serbs in three different locations in 2000 and 2001, found that only among the Bosniaks did the level of “acceptance” of ICTY run any higher than the midpoint.18 Assessing the effects that both the ad hoc tribunals—ICTY and ICTR—as well as Rwanda’s national-level pursuit of both regular prosecutions and gacaca courts had on national reconciliation in the countries concerned, Weinstein and his colleague Eric Stover concluded that “our studies suggest that there is no direct link between criminal trials (international, national, and local/traditional) and reconciliation, although it is possible this could change over time. In fact, we found criminal trials—and especially those of local perpetrators—often divided multiethnic communities by causing further suspicion and fear. Survivors rarely, if ever, connected retributive justice with reconciliation.”19 The aspiration that the Security Council had expressed when it established ICTR (and ICTY) a decade earlier—that these courts would somehow “contribute to national reconciliation”—was sorely disappointed.



Notions of Accountability and Punishment


In addition to challenging many widely held Western assumptions about the value of criminal trials in the aftermath of atrocity, the records of South Africa and (especially) Mozambique challenge some deeply held Western notions about the “accountability” of individual persons for all their actions, under all circumstances. By and large, the worldview that dominates the thinking of nearly all Westerners holds that under nearly all circumstances individuals are able to make considered, autonomous choices about all their actions, and that they can and should be held accountable on a strictly individual basis for those actions. These assumptions undergird the view that prescribes criminal prosecutions as the best policy response to the commission of atrocities, as well as that underlying the work of most post-atrocity truth commissions. Although this worldview is specifically Western in its origin, having its roots in the ontology of philosophers of the Western Enlightenment such as Thomas Hobbes and John Locke, many Westerners claim that these assumptions about the strict accountability of individuals somehow represent universal truths about the human condition and are therefore seamlessly applicable to all the peoples of the world. When faced with evidence of, or reports about, the commission of violent acts, advocates of this view often place their greatest stress not on trying to comfort the bereaved, succor the injured, or repair broken relationships but, rather, on trying to determine—and preferably on a strictly individualized basis—exactly how the responsibility for the commission of the acts should most appropriately be divided among the alleged suspects and, then, how to hold these individuals strictly accountable for their actions.

In any event, the form of accountability demanded of even a convicted génocidaire within a criminal justice proceeding is, in a number of respects, very thin and formulaic. For example, at no point throughout a criminal proceeding are defendants, even if convicted, required to do any of the following:


1.  give any acknowledgment of the factual truth of the findings the court has made on the matter, including on their own role in the commission of the criminal acts in question;

2.  give any acknowledgment of their personal responsibility for having committed those crimes;

3.  express any attitude of repugnance or repudiation toward such acts in general;

4.  express any recognition that those of their own acts for which they were found guilty (or any other acts) caused real harm to other members of society;

5.  express any remorse or regret for having undertaken those acts and inflicted those harms;

6.  ask for the forgiveness of the victims or society in general for their role in committing those acts;

7.  offer to undertake some form of reparative action, or

8.  promise not to undertake any similar actions, or any other actions that harm others, in the future.

Thus, like any other convicted criminal, even a convicted génocidaire can emerge from an entire criminal proceeding while still denying the factual basis of the court’s findings, while expressing a general attitude that says that—whether he committed the crimes in question or not—there is nothing wrong with such actions, and indeed while still also exhibiting an attitude of strong disdain to the court, to the political order that it represents, and to all the victims of his act. (At ICTY, Slobodan Milosevic’s performance exhibited all these traits. Saddam Hussein also exhibited many of them during his trial in post-invasion Baghdad.) It is true that during the sentencing phase of a criminal proceeding a public expression of attitudes of disdain may cost the convicted criminal dearly, while expressions of remorse about his action and of a desire to repair the harms he has caused may (or may not) help somewhat in mitigating the severity of his sentence. True, too, that the maneuver of “plea bargaining” as used in U.S. courts requires that the defendant admit to his or her guilt for having committed some of the crimes as charged, while also admitting that these actions were in fact criminally illegal. But participation in any form of plea-bargaining arrangement remains quite optional, as does the voicing of any attitudes of contrition or remorse in the sentencing phase. The broader fact remains that the criminal’s attitude toward such facts as are revealed during the criminal proceeding, or toward the people he has harmed through his actions, is not central in any way to the technical “success” of the trial’s conduct. Indeed, real moral engagement with the perpetrators of violent acts is just about as peripheral to the main concern of a criminal proceeding as is the rehabilitation of their victims.

Nonetheless, many in the Western-based rights movement continue to judge that criminal proceedings are the best way of holding perpetrators of atrocities “accountable.” The kind of accountability they seek is, perhaps, a more abstract form of accountability: an accountability to the broad sweep of the historical record, such as was achieved (if only imperfectly) at Nuremberg, rather than an accountability to the existing members of the society in which the perpetrators live, to the institutions of this society (including, centrally, its criminal courts), and to the victims of their past acts.

Or perhaps what these rights activists are really pursuing is the punishment of perpetrators that is attendant on their being found guilty. However, even in this regard, the form of accountability can seem very thin. International criminal courts have become notably more focused on due process and more squeamish about punishment since the days of Nuremberg. There, after a single joint trial that involved twenty-two defendants and lasted just over ten months, twelve of the defendants were sentenced to death, and their hangings were carried out (in, reportedly, a fairly inhumane way) just a few weeks after their sentencing.20 At ICTY and ICTR, the death penalty is no longer on the books. It can seem a little bizarre to imagine the judges at these courts sitting around during the sentencing phase to determine whether for each convicted person’s particular combination of proven crimes of mass murder, rape, or mutilation under the rubrics of war crimes, crimes against humanity, and genocide he deserves to spend five years in jail, twenty-five years, thirty-five years, or life. Here, too, the form of accountability being won—if the accountability of these individuals in the form of punishments appropriate to their crimes is what is sought—can seem thin, formulaic, and generally unsatisfactory.

And what, anyway, is the goal of all these punishments? Western thought traditionally distinguishes between theories of punishment that hold that to mete out punishment is somehow to give the perpetrators what they “deserve” and those that seek more concrete and utilitarian social goods. Regarding the matter of “deserving,” South African government minister Rejoice Mabudhafasi was surely voicing the thoughts of many other people when she said of the apartheid system’s abusers and torturers, “We can never do anything to them as bad as what they did to us. It’s not in our nature. God will deal with them. We leave that to Him.” I heard a very similar sentiment expressed by the evangelical social program head Michel Kayetaba, in Rwanda.

If it is impossible, then, for mere mortals to give to former abusers the treatment that they “deserve” to have, then what more down-to-earth social goals might punishment seek to attain? One might be the deterring of other would-be abusers. But in the circumstances of social breakdown and massive political violence in which most atrocities occur, it is hard to imagine that the rational calculations so vital to the successful operation of any deterrence strategy could reliably be expected to occur; and anyway, the existence of the UN ad hoc tribunals for over a decade and of the ICC since 2002 seems to have done precious little, if anything, to deter the continued commission of atrocities in various places around the world. Another social goal that might plausibly be attainable through punishment would be the incapacitation of the criminals and their networks.21 This is, without doubt, an extremely valuable goal, one that is essential to the rehabilitation of any violence-torn society. However, as we learned from Mozambique and South Africa, the winning of convictions in a criminal court is not the only (and quite frequently, not even the best) way to bring about this end. Especially in the aftermath of grave intergroup conflict, an emphasis on rebuilding society on a sustainable basis of political equality while working proactively to reintegrate into society all those caught up in the earlier violence, whether as perpetrators or victims (or both), can indeed “drain the swamp” of political conflict within which the commission of atrocities previously festered; and the commission of atrocities has often throughout history been ended in precisely that way. As Abraham Lincoln famously said following the atrocity-laden Civil War inside the United States, “The best way to destroy an enemy is to make him a friend.”

In today’s world, the best way to incapacitate a network of génocidaires or war criminals may well still be to turn them—if not into “friends”—then at least into recognized and valued partners in the creation and maintenance of the emerging political order. That was what happened in South Africa with the Nationalist Party leadership and the leaders of their apartheid-era security forces; and in Mozambique, with the military and political leadership of Renamo. In both those cases, integration into the political leadership of the new, post-atrocity order incapacitated the formerly existing and highly organized and violent networks of atrocity perpetrators far more effectively than a prosecutorial “victory” over them in a courtroom could ever have done.

Regarding the TRC, while it did not—by design—hand out any punishments to the perpetrators who came before it, it was nonetheless firmly based on the notion that individuals could and should be held strictly accountable for all their actions. Indeed, the form of accountability that the TRC required of perpetrators of atrocities was at one level significantly thicker than that required by a criminal court, since it required that amnesty applicants satisfy the Amnesty Committee that they had “told the whole truth” about their own roles (as well as those of others) with regard to the commission of grave human rights violations. That requirement corresponded, roughly, with requiring applicants to carry out the first two of the eight kinds of possible “personal accountability” tasks listed above. But even at the TRC, none of the third through eighth tasks on that list were ever required from former perpetrators, despite all the public pleadings of Archbishop Tutu, other commissioners, and other TRC staff members that accused wrongdoers such as Winnie Mandela or the NP leaders at least express some remorse or contrition for their actions. At the TRC, a truculent, quite non-repentant former perpetrator could completely satisfy the demands of the Commission and win a total amnesty simply by telling “the truth” about all of her or his own actions, without having to express in public any attitude at all toward the moral quality of the facts she or he had thus related or toward the individuals harmed by those acts. However, the availability of amnesties at the TRC meant that if accountability is to be equated with punishment, then the accountability demanded by the TRC was notably thinner that that demanded by a criminal court.22



Accountability, Individualism, and Manichaeism


Despite its ability to grant amnesties for past misdeeds, the TRC, like nearly all criminal courts, continued to base most of its work on the notion of the strict accountability of individual persons. However, in addition, it quite consciously set out to emulate the approach the Nuremberg court had used when it tried to pinpoint the role that “leading institutions of society” had also played in sustaining the broad climate of violence within which the individual acts of atrocious violence were committed. At Nuremberg, the twenty-two defendants were chosen specifically to “represent” certain leading sectors of Nazi society rather than according to the prosecutors’ prior ranking of their supposed degrees of culpability as individuals. In addition, the Pentagon lawyers who designed the Nuremberg charge sheet specifically inserted “criminal organizations” charges into the charge sheet with the goal of later being able to use convictions on those charges as the basis for the broad, and quite non-individualized, application of administrative sanctions against former members of the organizations named. At the TRC, the “institutional” hearings were held with the more purely heuristic goal of being able to demonstrate the role that broad social sectors had played in undergirding the apartheid system, rather than with the goal of proscribing any particular organizations (and the work of its centrally important Amnesty Committee was organized entirely on the basis of the cases of the individual amnesty applicants, and of a strict assumption of the accountability of individuals for all their actions). At the TRC, in addition, the view of victims as having been harmed mainly as individuals rather than as members of a much more broadly oppressed group also prevailedthough, as we have seen, this view was widely criticized within the wider South African society, including by many members of the new, ANC-led political elite.

To most of the people I talked to in Mozambique—and to some of my interlocutors in Rwanda and in the Black communities of South Africa—the whole notion of the strict accountability of individuals for actions undertaken during a time of atrocious mass violence made little sense at all. (Nor, in their view, did the idea that during or after such violence, society could be strictly divided into discrete groups like perpetrators, victims, and bystanders.) In the Mozambican provincial town of Belavista, the whole group of seven civil society leaders with whom I talked in 2003 completely dismissed the notion that people who had committed violent acts during a war could, or should, be punished for those actions. That group included, notably, two men on the staff of a nationwide human rights organization. “In civil wars, terrible things happen” was the general view expressed by these men.

I heard exactly the same sentiments expressed by just about all the Mozambicans I interviewed. In 2003, I talked with Afiado Zunguza, the executive director of the church-related organization Justapaz, about Martha Minow’s list of the eight “meta-tasks” that a society recovering from recent mass violence needs to address. Zunguza subjected the second of these goals (“Obtain the facts in an account as full as possible in order to meet victims’ need to know, to build a record for history, and to ensure minimal accountability and visibility of perpetrators”) to a particularly strong critique. He said that in traditional Mozambican society the reaction of respected elders to this would be to say: “Pointing fingers won’t help. Perpetrators are a part of us. We believe they didn’t want to go to war. They are our sons, and we want them back. To accuse them would mean that they would continue to be bandits.”

In Rwanda a year earlier, Attorney General Gerald Gahima mused openly about whether, in times of mass violence, the “normal” rules about the strict accountability of individual persons for their actions could be held to apply. As recounted in Chapter 2 of the present book, Gahima told me how hard he had found it to make judgments about the actual responsibility of one individual (a priest) for a sequence of actions undertaken during the harsh and coercion-pervaded circumstances of the genocide. At a conference in New York in 2005, Gahima—who by then had resigned from Rwandan government service—gave additional examples of such dilemmas. One involved the challenge of determining the criminal responsibility of a Hutu woman who during the genocide had “denounced” her beloved Tutsi husband and children to the génocidaires in her neighborhood—who happened to be her own brothers. Gahima’s reaction to the many cases of this nature with which he had wrestled as attorney general: He concluded that what was really needed was to work much harder on preventing the outbreak or recurrence of the kind of mass violence within which such wrenching dilemmas would always be found.

This phenomenonwhereby in the midst of extremely grave, anti-humane violence, moral truths that in normal times seem easily discernible can suddenly become quite indecipherableis not a new one. Primo Levi’s The Drowned and the Saved is a sustained reflection on the experiences Levi had suffered during his time in Auschwitz as a youth. He wrote a whole chapter there on the moral “Gray Zone” in Auschwitz that was inhabited not only by the “trusty” Jewish and Ukrainian sub-officials who kept much of the order within the Nazi extermination camps through their own exercise of extreme violence and terror, but by just about all the other prisoners in the Lager (the camp system) as well. Levi wrote:

Before discussing separately the motives that impelled some prisoners to collaborate to some extent with the Lager authorities . . . it is necessary to declare the imprudence of issuing hasty moral judgments on such human cases. Certainly, the greatest responsibility lies with the system, the very structure of the totalitarian state; the concurrent guilt on the part of individual big and small collaborators (never likable, never transparent!) is always difficult to evaluate. It is a judgment that we would like to entrust only to those who found themselves in similar circumstances and had the opportunity to test for themselves what it means to act in a state of coercion. . . . The condition of the offended does not exclude culpability, which is often objectively serious, but I know of no human tribunal to which one could delegate the judgment.23

The moral truths that Levi was expressing there were, first, that during any situation of very grave intergroup violence, many people who commit atrocious acts do so because of coercion or because of extreme mental stresses and fears caused by the maelstrom of violence all around them; and, second, that many people who are the immediate victims of atrocious acts—perhaps even fatally so—are not in fact themselves perfectly “innocent.”24 Most survivors of the atrocious violence in Mozambique, and probably elsewhere, would agree heartily with those judgments. But for its part, the Western-originated legal system finds such moral cloudiness very unsatisfactory and hard, if not impossible, to deal with.

Rama Mani, in her fine work Beyond Retribution: Seeking Justice in the Shadows of War, urged policymakers at all levels who are assessing the challenges societies face as they try to escape from grave violence to move beyond the simple, dyadic division of people caught up in atrocious violence into quite separate and discrete groups of “victims” and “perpetrators” and to consider instead that all these men and women are in fact “survivors” of the violence:

[A]n exclusive focus on individual accountability, and on the individual identification of perpetrators and victims, is not helpful . . . as it denies both the guilt and the victimization of the vast majority of society [in situations of grave violence]. Moreover, it ignores what all citizens in society share in common: that they are all survivors, whatever their past role, and that they now have a common stake in building a future together.

[Martha] Minow observed the need to define the entire society as one of victims. While this is an advance as it acknowledges the real impact of conflict on an entire society rather than a targeted few, to do so would only entrench the notion of victimhood, and concomitant helplessness. Rather, it is more useful to recognize that in such circumstances, to emerge alive, regardless of one’s role and affiliation during conflict, is to be a survivor. More useful than Minow’s notion of collective victimhood is a redefinition of the entire society as survivors. . . .

Adopting this common identification that embraces all members of society may render more feasible the task of (re-)building a new political community that overcomes divisiveness between perceived perpetrators and victims.25

Mani based these conclusions on a consideration of justice issues in a large number of countries that in the post–Cold War era were struggling to escape from grave intergroup conflict. My study here has focused on only three countries, but in more historical and anthropological detail than Mani used. Based on all the evidence I have collected and considered in the present book, I believe she was quite right to advocate this move of considering all members of societies struggling to emerge from war and conflict as “survivors” rather than as “perpetrators” or “victims.” (She was equally right in stressing the urgent need to address issues of distributive justice in the aftermath of conflict, if a strong basis is to be provided for a stable and sustainable postwar order.)

In the national discourse of Mozambique, there has been almost no reference to either the “perpetrators” or the “victims” of the country’s civil war–era atrocities. Instead, all those who came into close contact with the violence are referred to in that discourse simply as the affetados or affetadas (“those affected by it”). This might be a nice term to adopt more broadly in the global discourse except that it carries some of the more passive connotation that Mani—rightly, in my view—rejects with regard to Minow’s suggested broader use of the term “victim.” Indeed, Mani stresses the fact that the term “survivor” carries with it the sense of a person who has lived through something, and surmounted obstacles while doing so.

Already, in some crevices of Western culture, there is a recognition that engagement in acts of grave violence as a perpetrator can also, in itself, be damaging to the perpetrating individual, and that perpetrators should therefore often be considered along with the immediate victims of their acts to be traumatized survivors of that climate of violence who may need some healing, rather than simply as “perpetrators” who should be judged and held strictly accountable for each and every act of violence that they have committed. For example, this view is widely held in the Western medical community, which has largely embraced the view that their own countries’ warriors who return from wars in which they may well have perpetrated acts of grave violence as well as seen their own comrades suffer from violent acts are very frequently in need of psychosocial healing to help them escape from what has been described, medically, as “post-traumatic stress disorder” and, before that, “neurasthenia” or “shell shock.” There is also, among the former combatants themselves, a broad recognition that the general moral and existential climate in the midst of warfare is very different from that in settled civilian society. However, the kind of allowances that many Western rights activists have been prepared to make for their own compatriots and friends who may have been involved in armed conflicts elsewhere have too rarely been extended in an equally generous way to former combatants from other, far more impoverished and war-damaged lands.



Remorse, Culture, Memory, and Peace-building


In the earlier chapters on Rwanda and South Africa, I made a number of mentions of the contribution that expressions of remorse from perpetrators of atrocious acts can make to the process of rebuilding interpersonal (and possibly also intergroup) ties in the aftermath of atrocity-laden conflict. In Chapter 3 I wrote that one of the most important things going on at South Africa’s TRC was that “Blacks (and other non-Whites) sought to use it to initiate a prolonged national conversation in which they confronted the architects and implementers of the apartheid system—who were predominantly Afrikaners—with the facts about what apartheid had done to them over the decades, reproached them on that account, and invited them to respond with some meaningful expression of remorse.”

The TRC, as we have seen, strove to give a significantly weightier role than is given in most criminal proceedings to the victims/survivors of the former violence; and many of the victims used their time in this public space not just to retell the stories of their grief and suffering but also to add their own reproaches to those being voiced by the commissioners toward the perpetrators of the earlier violence. On a number of occasions, too, the victims added their voices to the appeals the commissioners made to the perpetrators to express remorse and thus, in essence, to “rejoin the human family.”

TRC staff psychologist Pumla Gobodo-Madikizela has written with great wisdom about the contribution that remorse and its credible public expression can make to bringing about social healing:

When perpetrators feel remorse, they are recognizing something they failed to see when they violated the victim, which is that the victims feel and bleed just like others with whom they, the perpetrators, identify. Remorse therefore transforms the image of victim as object to victim as human. . . . 26

When perpetrators express remorse, when they finally acknowledge that they can see what they previously could not see, or did not want to, they are revalidating the victim’s pain—in a sense, giving his or her humanity back. Empowered and revalidated, many victims at this point find it natural to extend and deepen the healing process by going a step further: turning round and conferring forgiveness on their torturer.27

Some of the stories of the personal interactions among former antagonists that occurred as a result of the TRC’s giving so much voice to the survivors of violence were very moving indeed. Gobodo-Madikizela wrote at length about the personal journey undertaken by Eugene de Kock, a noted organizer and perpetrator of apartheid-era atrocities, after one of his appearances at the TRC’s Human Rights Violation Committee. He had testified there about his role in organizing the killing of three Black policemen on the grounds that they knew too much about the security forces’ earlier involvement in many, very atrocious “dirty tricks.” After that appearance, de Kock asked to meet the widows of the three murdered officers—and two of the women acceded to his request. Gobodo-Madikizela met with these two, Pearl Faku and Doreen Mgoduka, shortly after their meeting with de Kock and described their reactions to their encounter with the man who had killed their husbands:

“I was profoundly touched by him,” Mrs. Faku said. . . . Both women felt that de Kock had communicated to them something he felt deeply and had acknowledged their pain. [Mrs. Faku said,] “I couldn’t control my tears. I could hear him, but I was overwhelmed by emotion, and I was just nodding, as a way of saying yes, I forgive you. I hope that when he sees our tears, he knows that they are not only tears for our husbands, but tears for him as well. . . . I would like to hold him by the hand, and show him that there is a future, and that he can still change.”28

When one party expresses a reproach to another party, the reproacher is urging the reproachee to undergo precisely this kind of change of view, to “recognize something they failed to see when they violated the victim”that is, to rethink the moral content of the act he had previously committed. At the TRC, these reproaches were being launched both between individual persons and at a broader societal level, in that the TRC as a whole, and the newly emerging democratic society in whose name it spoke, was inviting members of “the community from which the worst perpetrators had sprung”—that is, the White community, and especially the Afrikaner wing of it—to completely rethink their former view of their non-White compatriots. At this level, the TRC can be seen as part of the broad post-1994 effort to re-educate or re-socialize the country’s Whites. Inasmuch as Nuremberg in its day, or ICTR or the national-level efforts in Rwanda more recently, all had a heuristic goal, they too were aiming at a similar re-education of members of the formerly perpetrating communities. In the case of Nuremberg, that re-educative effort was largely successful over time—but not immediately. Historians of modern Germany note that it was not until the early 1960s—some seventeen or eighteen years after 1945—that most Germans were ready even to start critically examining their country’s actions in the Nazi era.29 In the case of the post-conflict efforts in both South Africa and Rwanda, it is probably still too early yet to tell how successful these two re-educative efforts have been, though for now the project seems to have been markedly less successful in Rwanda than in South Africa.

This “reproach-rethinking-remorse” paradigm of attempting social healing seems roughly parallel to the “accusation-confession” paradigm that is familiar in Western culture from a combination of the general popular understanding of Western criminal law (“accusation”) and the general understanding of Christian religion (“confession”). However, launching a reproach against another person is significantly different from launching an accusation against him. A reproach, to be effective, is always best offered in a spirit of friendship and concern for the well-being of the person reproached. By contrast, it is hard to voice an accusation against someone in anything approaching a spirit of friendship, and the situation is even more polarizing when it is the institutions of a state launching the accusation (or “criminal charge”) against him.

Expressing remorse for one’s past actions is also significantly different—and, as suggested above, morally much “thicker”—than merely confessing to having committed them. Indeed, if remorse is sincerely experienced, and not merely expressed in a superficial way, it should naturally lead to a desire to repair what has been harmed, as much as possible, and thus to the provision of some form of material or symbolic reparation. In the accusation-confession model, meanwhile, whether or not there has been a confession, the accusation against a perpetrator will, if proven in a criminal court, necessarily lead to a punishment. (The analogue of that in the religious system of at least the Catholic portion of the West is that a confession of sins to a priest will lead to the imposition of some symbolic form of penalty such as saying a certain number of “Hail Mary’s.”)

We have, then, at least two broad paradigms for how peoples and cultures have thought that social healing can be effected in the aftermath of acts of interpersonal violence: the reproach-rethinking-remorse-reparation (RRRR) paradigm and the accusation-(optional) confession-punishment (ACP) paradigm. The evidence presented in this book strongly indicates that the RRRR paradigm, which was the one most broadly followed in the post-conflict years in South Africa, was considerably more successful in building a sustainably peaceful post-conflict order than the ACP paradigm, which has been pursued in a number of different ways in and for Rwanda.

For their part, the Mozambicans pursued an entirely different paradigm. Both the RRRR paradigm and the ACP paradigm rely on explicitly verbalized forms of interaction. But in Mozambique, as noted in Chapter 4, the kinds of healing rituals practiced and sustained by the country’s traditional healers over the generations have all been strongly performative rather than verbal—this, in line with the Mozambicans’ broadly held belief that, as described by Alcinda Honwana (who is also cited in Chapter 1), “[r]ecounting and remembering the traumatic experience would be like opening a door for the harmful spirits to penetrate the communities.”30 Mozambicans are, indeed, far from the only people in the world who have such a large regard for the generative power of the spoken word or other representations of things. The phenomenon of retraumatization of former victims of violence when, for example, they are required to testify verbally in a court proceeding about what happened to them is well known throughout the world. For that matter, the entire global industry of pornography would collapse if representations—including verbal representations—of things did not have such generative power.

In another publication, Honwana has written that the objective of the kind of post-conflict cleansing ceremonies held in traditional Mozambican culture “is not to ignore past trauma, but to acknowledge it symbolically before firmly locking it away and facing the future.”31 Her colleague João Paulo Borges Coelho has contrasted these nonverbal traditional ways of enacting and marking the transition from military to civilian life with the noticeably different rituals of transition that Frelimo used back in the early days of national independence, to try to reintegrate into national society those thousands of Mozambicans who had worked with the former colonial regime. On that earlier occasion, Coelho wrote, Frelimo insisted that as a condition for reintegration into post-independence society the former “collaborators” should publicly reveal their whole records of service for the Portuguese. “However, the effect of coming clean was often humiliation. ‘Collaborators’ were persecuted for their past and saw their careers and attempts to rebuild their lives blocked. As a result, many fled the country, with some subsequently offering their services when Renamo was formed by the Rhodesians in 1977.” Coelho noted that in 1992, by contrast, the General Peace Agreement “avoided a ‘winner-takes-all’ scenario. . . .  A fortunate combination of local circumstances also ensured that the principle of ‘purification’ adopted by Frelimo following the colonial war would be replaced by a more conciliatory stance towards Renamo.”32 Frelimo, like the Allies in Europe in 1945, seemed to be showing that it had learned from its past errors of judgment.

The fortunate combination of circumstances cited by Coelho had indeed been achieved, at both the national and international levels. Frelimo, as noted above, was forced to end its conflict with Renamo through negotiations rather than through an outright victory. The Mozambican people already had a strong cultural preference for using well-respected and generally successful performative rituals to mark the ends of conflicts. And finally, in 1992 there was still no general expectation—much less any requirement—in the international community that all major perpetrators of atrocious violence should be held “accountable” in a criminal court for their actions. Taken together, these circumstances led to the nearly nationwide use and broad public acceptance of performative rather than verbalized ways of reintegrating the national society. As a result, in Mozambique there was no systematic attempt at all to compile a complete “historical” record of who exactly had done what to whom, and how, in the long, dark years of the civil war.

Patricia Hayner visited Mozambique in late 1996 to research Mozambicans’ attitudes toward the idea of establishing a truth-telling mechanism. She summed up what she heard from her interlocutors there in these terms: “No, we do not want to reenter into this morass of conflict, hatred, and pain. We want to focus on the future. For now, the past is too much part of the present for us to examine its details. For now, we prefer silence over confrontation, over renewed pain. While we cannot forget, we would like to pretend that we can.”33

When I was in Mozambique in 2001 and 2003, the same kind of views still seemed overwhelmingly dominant. In addition, by then it appeared that many of the people I talked to really had forgotten many of the details of what had happened during the civil war. Thus, while in 2003 and 2004 thousands of survivors of the Rwandan genocide were still continually being pressed by officials at ICTR and in Rwanda’s own justice system to remember and recount the most intricate details of who had committed precisely what gruesome act against whom back in 1994, in several conversations I had in Mozambique in that period a Mozambican colleague would fail to recall even fairly large and significant facts like which side—Renamo or Frelimo—a particular friend or colleague might have fought on during the civil war. It was not that the Mozambicans had altogether forgotten about the violence of the war years. Rather, they had chosen and carefully framed exactly what it was about the war that they wanted to remember and discuss. They remembered mainly, as Zunguza told me, the many ways in which the civil war had been a disaster for the whole national community, rather than the details of what had happened during it to individuals within the community.

These culturally based attitudes toward explicit and detailed representations of past traumas had a big effect on whether and how leaders and citizens of these three countries chose, in the years after their respective conflict termination attempts, to memorialize the victims of the conflicts. In Mozambique, the country’s political leaders decided not to establish any public memorials to the dead of the civil war years, though there were many public memorials to those who had died in the liberation war that preceded it. In Mozambique, too, there seemed to be no, or almost no, attempts by nongovernmental bodies to establish public memorials to the civil war’s victims. (It is hard to decide whether the carefully tended mass graves in Chiboene should be considered public memorials.)

In South Africa, many of the country’s Black citizens and members of the new ANC political leadership had a complex reaction to suggestions from White liberals that it would be a good idea to erect memorials to the sufferings of the non-White communities under apartheid. In Johannesburg, a vast and expensive “Apartheid Museum” built by White developers as part of an obligation to the City Council stood almost completely empty the day I visited it in 2003. However, the Hector Pieterson Museum in Soweto, the District Six Museum in Cape Town, and the Robben Island memorial near Cape Town are all sites that memorialize the same era; and when I visited them in 2003 they all seemed to have considerably greater support from South Africans than the grandiosely overdesigned Apartheid Museum. But still, eight and nine years after democratization, most of the country’s citizens seemed to be placing much more emphasis on the continuing campaign to rename places with non-European names, to change national curricula, and to implement other parts of their broad cultural transformation agenda than they did on establishing memorials to specific aspects of the recent past.

In Rwanda, meanwhile, the government continued its policy of establishing and maintaining numerous very high-profile sites around the country to memorialize the human suffering of the genocide (but not that inflicted through the RPF’s own war crimes). Most of these memorials centered on displays of skeletal parts or other human remains that were publicly presented in ways that some Rwandans and non-Rwandans found very disturbing—not least because to many Rwandans these displays flagrantly violated their norms of how the mortal remains of loved ones should be treated.

The contribution that memorials like these make to long-term peace-building can be problematic and hard to gauge. In many places around the world they have greatly facilitated public understanding of the suffering caused by atrocity and war. But elsewhere—for example, in Northern Ireland, Saddam Hussein’s Iraq, and Franco’s Spain—the building of grandiose memorials and the enactment of regular commemorative rituals have done more to perpetuate divisiveness and conflict than to help ease them. Certainly the heuristic content of any memorial to victims of past violence should always be open to interrogation. At the Robben Island memorial, and in the District Six Museum and the Hector Pieterson Museum, the “message” about the suffering and evil of the apartheid system has been intelligently complemented by other messages about the value of a cultural diversity that includes White people, and about the contributions that a number of White people made to the struggle against apartheid. The genocide memorial museum that I visited in Kigali was still unfinished and its eventual heuristic content still unclear; but I found the careful arrangements it presented of hundreds of skulls, other human bones, and small personal possessions recovered from the dead to be starkly shocking.



Peace-building as a Process over Time


Peace-building is a process that takes place over time and requires a continuing commitment to the principles of political fairness, socioeconomic justice, and nonviolent resolution of conflicts that undergird it. Obviously, not all the tasks of building a stable long-term peace can be accomplished in one fell swoop. It might seem as though that came close to being the case in Mozambique, with the conclusion of the GPA in 1992. But even there (as noted above), much of the basis for successful peace-building had been established through the four-year period of negotiation that preceded that event, and many very important parts of the peace-building agenda remained to be implemented throughout the three to five years that followed October 1992. In South Africa, too, though the holding of the landmark democratic election of 1994 marked a clearly identifiable transition out of conflict and into a new era, the years after 1994 saw the country’s people continuing to wrestle with many extremely important peace-building tasks in the economic, political, and cultural spheres. In both those countries, the busy years that immediately followed the main conflict termination “event” evidently formed a crucial period of incubation for the infant peace agreement; and it is hardly surprising that, for example, many influential people in the new South Africa said they were “too busy” attending to the forward-looking tasks of national governance to pay much attention to the workings of the TRC. In Mozambique, meanwhile, since there was no project at all that sought to untangle the complex issues of the accountability of individuals for the atrocities of the past, the leaders and members of the society could use the post–October 1992 incubation period to focus even more determinedly on the urgent tasks of the present and future.

In Rwanda, the RPF’s battlefield victory of July 1994 constituted a clear conflict termination opportunity for the victors, and the RPF did thereafter try to bring an end to their long-running conflict with the large “Hutu Power” networks. But they did so on their own determinedly punitive terms. It was quite understandable from a psychological perspective that representatives of a demographic minority like the Tutsis, who were emerging from a period of their own extreme traumatization, would have a strong inclination to act punitively toward the demographic majority in order to gain some assurance of their own survival as a group. In post–World War II Europe, after all, the three Allied governments whose people had suffered the worst from the crimes of the Nazi years all originally sought to inflict harshly retributive policies on the conquered Germans, at all levels. It was perhaps only the relative distance and insulation of the American people from the privations of the pre-1945 years that allowed Washington to conceive of, and push hard for, the policy of relative restraint that was ultimately (though not immediately) also adopted within occupied Germany by France and Britain. Meanwhile, it was the massive U.S. material superiority over all the other Allies in 1944–1945 that allowed Washington’s (specifically, Stimson’s) views on how to deal with the former Nazis to prevail. In Rwanda in 1994, by contrast, the punitive inclinations of the regime so recently instituted by those who claimed to represent the former victims were considerably strengthened by the pressures that came from outside, since much of the “international community” was strongly urging the RPF government to institute a system of strict accountability for all those suspected of participation in the genocide. (To his immense credit, Archbishop Tutu was one of the few outsiders who made a big effort to go to Rwanda to urge a policy of restraint and relative generosity. But when he arrived there, in 1995, the RPF rulers were not ready to hear his message.)

In any event, Rwanda’s post-genocide government failed to take the best advantage it could of the conflict termination opportunity it had access to in the summer of 1994. The RPF’s conflict with the Hutu Power networks was never definitively terminated. The conflict was tamped down (or repressed) to a considerable extent within Rwanda itself; but at the same time, from 1996 on, it was largely displaced to the much more extensive areas of eastern DRC, where it took on much more lethal and damaging forms. It is hard to gauge the degree to which the continued pursuit of criminal prosecutions—by both the RPF government and the United Nations—contributed to the perpetuation of intergroup hatreds and suspicions in those years. But the fact of those prosecutions and of the Kigali government’s associated campaigns of widespread detentions and “re-education camps” undoubtedly did have such an effect, and it was probably all the larger since in both ICTR and the Rwandan courts the prosecutorial strategy was, and was seen as, so markedly one-sided.34 But beyond the fact of that one-sidedness, individual Rwandans, more or less continuously after July 1994 and even a decade or more after the end of the genocide, were still being forced by ICTR and by the regular and gacaca courts inside Rwanda to continually revisit, retell, remember, and revisit the events of the genocide in great detail. This continued to have a very bad effect on intergroup relations in communities throughout the country.

In South Africa, the truth-establishment exercise of the TRC was, as noted in Chapter 5, substantially completed in August 2002, eight years after the country’s main conflict termination event. (Government prosecutors continued to pursue just a handful of cases after that; and some nongovernmental groups continued to pursue civil cases against their former oppressors, primarily through the U.S. courts.) For Rwandans, ICTR promised that its work would continue until 2008 or 2010—that is, fourteen or sixteen years after the end of the genocide. At the national level, Rwandan officials estimated that the gacaca courts, which were their main “truth establishment” exercise and which did not even start work until 2005, would wrap up their efforts within three to five years—or even, according to one official—ten years. That is, Rwanda’s national-level efforts at “truth establishment,” which had already run continuously since 1994, could end up continuing throughout a twenty-one-year period following the end of the genocide!

Societies exiting from periods of grave and atrocity-laden intergroup conflict are very vulnerable indeed. This circumstance has at least two implications on policy. First, it means that developments of any kind that tend to stunt the process of peace-building can be particularly damaging in those early years and that those damages, once inflicted, may take further years (or even generations) to repair. Second, it means that such societies are extremely vulnerable in those years to influences from external forces, especially those that are politically stronger or much better resourced than they are; so aid donors and other outsiders need to be very aware of their capacity for inflicting unintended harm on these societies.

If we look at the process of repair and building (or rebuilding) of healthy societies in the aftermath of conflict as an organic process that has its own rhythms and takes place over a number of years, we should be led, as well-meaning outsiders, to adopt a much more humble pose of focusing on supporting that process of social repair rather than rushing in with our own prescriptions of what else might need to be done. For example, Martha Minow’s listed meta-task “Establish a clear historical record of the harms that have been done” may seem like an urgent priority to many Westerners in such circumstances—as it was (or more precisely, as it became over time) for many Jewish survivors of the Holocaust in Europe and for survivors of repressive regimes in Chile or Argentina. But other groups throughout the world, including in Western society, have not placed such a high temporal (and financial) priority on this task. Such groups include, for example, the Roma (Gypsy) survivors of the Holocaust and the Spanish survivors of the Francoist era that lasted until the late 1970s. Regarding Roma views on seeking public memorialization of the 500,000 of their people who were killed in the Holocaust, historian Isabel Fonseca has written, “The Second World War and its traumas are certainly within memory; but there is no tradition of commemoration, or even of discussion. Some thought that such talk might actually be dangerous: “Why give them ideas?” a young Hungarian Rom asked, fifty years after the event.”35 Regarding the attitudes of Spaniards to the civil war of the 1930s and to the long decades of Francoist repression that followed, Andrew Rigby has written that, once democracy started to reemerge in the late 1970s, “[a]ll those parties and groupings that sought to see Spain transformed into a political democracy agreed on a pact to forget the most painful elements of the past and engage in a form of selective amnesia.”36

Of course, matters are not really quite so clear-cut as that, since the views of survivor communities can also shift significantly over time, in a dynamic process propelled by the debates that take place inside them over this issue. Many Jewish survivors of the Holocaust were, for some decades after 1945, reticent about talking about their experiences under Nazi rule: They had a lot of personal healing and rehabilitation to do before they felt confident enough to take on that task. (And as previously noted, most Germans did not seem ready to grapple with the moral challenges of the Holocaust until the 1960s. In 1945, and for several years after that, their main imperatives were bare human survival, the absorption of 8 million ethnic German refugees from the East, and the rebuilding of national institutions shattered by twelve years of Nazism and war.) Similarly, it was not until the early 2000s that some—but not all—descendants of the Spanish Republicans finally started to feel that the time had come to seek their own answers about what had happened to their forebears. In all these cases, the desire to discover and establish a detailed historical record of past harms is deferred, or suppressed, or reemerges according to a rhythm that seems largely internal to the community concerned.37

It is almost certainly much harder, ten or twenty or a hundred years after the event, to go back and recreate a satisfactorily full historical record of past harms done. On the other hand, for many societies emerging from periods of atrocious conflict, the survival of the national or sub-national community may itself still be felt to be at stake, and members of that community may be quite justified in judging that ensuring the survival of their community by avoiding the re-eruption of violence and trauma should take priority over the establishment of a painstakingly full historical record. (This is probably true of the still very hard-pressed Roma.) World history is, tragically, far too full of the—necessarily sketchy—records of national groups of different sizes in North America, Africa, and elsewhere that have, indeed, completely ceased to exist.



Revaluing the Role of Religion


The physical damage suffered by communities struggling to emerge from grave conflict, and by the women and men who make up these communities, is often horrendous in its nature and extent. But the damage inflicted on the conceptual worlds of these individuals is also often enormous. Many of the key institutions of these societies, including educational and religious institutions and even families, may have betrayed the trust that people placed in them. Since these institutions are important bearers and transmitters of spiritual and conceptual meaning in people’s lives, the entire conceptual universe in which the survivors live may lie as shattered as the physical infrastructure around them. A large number of survivors may have lost their capacity to trust their fellow men or women. The religious faith of many—the faith that had previously given meaning, rhythm, and purpose to their lives—may lie in tatters. Communities emerging from atrocious conflict have many needs in the psychosocial realm, including in the spiritual portion of that realm.

Indeed, in many of these societies the disciplinary boundaries that in Western society establish separate zones of responsibility for “law,” “medicine,” “politics,” or “religion” have no meaning. Religion, with its associated arts of healing, law, and governance, may have a much larger and determinative role in these people’s lives than it does in many Western nations. When the institutions of religion themselves become infected with violence, as happened to many of the churches in 1994 Rwanda, the damage to the believers’ conceptual and spiritual worlds is correspondingly grave. By contrast, when the institutions of religion retain their integrity and their capacity to provide healing and regenerative services to the people—as happened in Mozambique throughout the lengthy civil war—they can help the people to withstand even the most terrifying assaults on their lives and their communities, and to emerge from this violence with their psychosocial and spiritual well-being remarkably intact.

In South Africa, the various institutions of the Christian religion played a distinctive and complex role in the centuries-long struggle for human equality. The colonial project of the Afrikaners, and its associated expropriation of most of the best land in the region, had been motivated to a great degree by their own view of themselves as furthering a Bible-based “redemption” of the land of South Africa for their own version of Protestant Christianity. Along the way, the Afrikaners and the country’s English-speaking White settlers also converted many of the country’s indigenous and mixed-race people to various forms of Protestant Christianity, very often using incentives or even coercion. Then, during the twentieth century, some of the country’s non-White thinkers and leaders started to take the teachings of the Christian Bible about human equality quite seriously—in part, as a means of buttressing the reproach and the claims they voiced against their country’s colonial rulers. And these rulers were, crucially, people who proclaimed the same holy scriptures. (In Mozambique and elsewhere in colonial Africa, many Black nationalist leaders similarly used Bible teachings to buttress their claims against professedly “Christian” colonial powers.) In the struggle of South Africa’s people for human equality, the teachings of Christianity, Islam, Hinduism, and the country’s remaining indigenous traditions all made distinctive contributions; and the institutions maintained by these religions certainly helped buttress the survival of the beleaguered non-White communities. The support that European and North American churches gave to their struggling coreligionists in South Africa was often—as in Rejoice Mabudhafasi’s case—very direct. And when, finally, the leading institutions of the Afrikaner community did start to rethink their view of the ontological status of their non-White compatriots and to move toward accepting one-person-one-vote elections, stirrings of conscience among some Afrikaner church leaders contributed somewhat to this rethinking (though the “re-education” of many of these church leaders still seemed worryingly incomplete even some years after 1994). Then, as we have seen, when the TRC enacted its nationwide dramas of reproach in 1995–1998, the symbolisms of Christianity played a prominent role in helping to frame those dramas.

Because of the extreme and multifaceted vulnerabilities experienced by societies trying to escape from atrocious violence, religion—meaning religious ideas, understandings, and experiences, as well as the institutions that embody and transmit them—has an almost unique capacity to help or hinder the process of peace-building. In Rwanda, the tainting of most of the country’s existing religious institutions on account of the complicity of many of their leaders with the genocidal networks left the country’s people after July 1994 particularly bereft—and also particularly vulnerable to ideas of all sorts coming from outside. Those ideas included notions about a rigid and highly individualized version of accountability, and the need for extensive prosecutions and detentions. Few and far between in post-genocide Rwanda (as in post–Nazi Germany) were church leaders, or leaders of other religions, who during the era of mass violence stood up and enacted any kind of a personal witness against it and thereby retained their credibility as moral leaders in the post-violence era—though in both situations, small numbers of such people did indeed exist. In Rwanda, given the deep moral collapse of the Catholic church and many of the Protestant denominations during the genocide, prophetic, values-based religious leadership took some time to reemerge after July 1994. But by the time I visited the country in 2002 it did seem to be reemerging within some of the country’s Protestant (and Muslim) institutions.

Most rights activists and liberal governments in the West pay little heed to the role that religious concepts and religious institutions can play in helping societies as well as individuals to reconstitute themselves in the aftermath of atrocious violence. Many rights activists in the West are concerned about keeping religious institutions out of intervention in the politics of their own countries. Many live lives in which the role of personal religious belief and affiliation is minimal or absent, so they have a poor understanding of the value of such affiliation to others of their fellow humans and correspondingly little curiosity about the religious and cosmological beliefs of others. For their part, liberal governments and the officials who staff them are generally (and quite understandably) wary of becoming involved with religion-based institutions at home or abroad, and intergovernmental bodies like the UN agencies have almost no capacity at all to address and harness the potential of such institutions. Yet throughout the present study, we have seen the strongly positive role that religious ideas, practices, and institutions played in helping individuals and communities to survive during periods of mass atrocity, and then to recover and rebuild their societies once the atrocities ended. We saw how religious beliefs and institutions helped sustain Rejoice Mabudhafasi in South Africa, Agnès in Rwanda, and Evaristu Wanela in Mozambique throughout their days of trial and sorrow. We saw how religious concepts and institutions helped make and build the peace in Mozambique; how they informed the work of the TRC in South Africa; and how in recent years they have started to put some Rwandans back on a path toward personal recovery and socioeconomic reconstruction. Yes, it is true that religious ideas have often—everywhere around the world, including in these three countries—been harnessed to divisive, heinous, and violent ends. But still, they are extremely powerful ideas that speak to the core of what many people believe makes them human. To ignore the role that religions and their understandings of the world can play in helping societies recover from atrocious conflict is therefore to make a dangerous mistake. And when religions do play that role, they also necessarily speak to core issues of justice.


Lessons from Mozambique


Given the remarkable success of Mozambique’s transition out of the atrocious violence of its civil war years, it is important to pull together here the main lessons of how the country’s people and leaders actually achieved that transition. It is true that several aspects of what the Mozambicans did seemed to be highly dependent on the healing-focused nature of their culture and belief system and on the high degree of popular “buy-in” enjoyed by these beliefs within the national community. But still, similar or parallel kinds of cultural resources that can support successful escapes from the climate of violence do still exist in many other cultures around the world. So if we can clearly identify what it was in Mozambican culture that supported the Mozambicans’ successful transition from war to peace, then perhaps we can all be more aware that these kinds of belief systems are indeed cultural resources of continuing value and, therefore, that it is worth trying to identify similar kinds of cultural resources in other places around the world and working to preserve and strengthen them rather than allowing them to be drowned in a rising global tide of Western-style prosecutorialism.38

As best I understand it, what enabled the Mozambican model of conflict-transcendence to work in the post-1992 years were the following six aspects of what the country’s people and leaders did. First, during the pre-GPA negotiations and during the crucial transition period of 1992–1994, Mozambicans made a strong commitment to giving the demands of the future priority over any desire to reexamine the past. Cardinal Dos Santos recalled that during the negotiations, his prime message was “We can’t solve anything if you speak about the reasons you are fighting. You need to just try to find the way to get peace. You want to speak about the way to find a meeting of the minds, not speak about the differences.” Sant’ Egidio’s Andrea Riccardi described in very similar terms the approach he used as he facilitated the peace talks. It was fortunate that these moral leaders were able to find resonance in this from the political leaders of both Frelimo and Renamo—a factor that allowed the negotiations to progress toward success. Their emphasis on the need to prioritize the future over the past also resonated with the broad masses of the country’s people.

Second, the rituals used at all levels, from the national to the personal, all signaled the existence of a clear temporal and existential transition from war to peace. Several people have noted that the much-publicized handshake between Chissano and Dhlakama in October 1992 was the key transformational act at the national level. And at the local and personal levels, the reintegrative ceremonies undertaken by nearly everyone who had come into direct contact with the war’s violence made the experience of that transition out of the era of war and into the era of peace very present in people’s lives. Thereafter, it was on the basis of people’s clear and direct experience of the fact of this transition that the argument that “there was one set of rules for those times of war, and another completely different set for the present time of peace” could be sustained. The near-universal acceptance of this argument was essential for the postwar implantation of the norms of the rule of law.

Third, like the “peace accord” between the apartheid regime and the ANC in South Africa, the GPA centrally included an agreement on establishing an egalitarian and fundamentally democratic political system from then on out—and, moreover, this system took root and proved sustainable.

Fourth, no attempt at all was made to draw distinctions among those who had had close encounters with the violence of the civil war. All were viewed alike as simply affetados, and they were generally not further identified as “victims” or “perpetrators.” In addition, because of the need to sustain the strength of the ontological break between the time of violence and the time of peace and normalcy, any attempts to revisit or reexamine the violence of the war years in detail were viewed with great trepidation, and generally rejected. There remained a lively concern about the risks of re-traumatization and bringing the violent gestalt of the past back to life.

Fifth, because no Mozambican participants in the war’s violence were ever publicly identified as “perpetrators,” there was no need to adopt any special programs to deal with them. Like everybody else who had been “affected” by the wartime violence, they were expected by society, now that the war was over, to participate responsibly in the building of the new peaceful order. The same expectation was expressed toward those who had been “victims” of the violence. For example, Carolyn Nordstrom described a ritual for a woman previously used as a sex slave in which the woman was reminded through the symbolism of the ritual that she, too, now had the responsibility to let go of the hurt of the past and not to pass it on to others. This seems a mature and constructive way to address people victimized by earlier violence. Certainly it avoids infantilizing these individuals by conveying to them and others that they need not take any responsibility for their behavior going forward.

Sixth, during the community-level rituals of reintegration of the affetados, all the cultural resources of the society were brought to bear in the attempt to make this reintegration successful. These resources included the relationships of survivors of violence with the spirits of the ancestors, the sacred home, and the extended family and broader community. They also, crucially, included the economic resources of the local (and global) community, building on the view that the best way to ensure the long-term rehabilitation of war-scarred individuals is to make sure they have the best chance possible to attain a decent livelihood, a stable family life, and a supportive, regenerative community.


Peace-building and Atrocity Prevention in the Twenty-First Century


The 1990s were a period in which the United States and its Western allies enjoyed unrivaled power in international affairs. Important participants in the political elites in those countries sought, usually from the best of motives, to use Western power in the world to further the implementation of their own views regarding the best way to bring an end to the commission of atrocities and the impunity of high-placed perpetrators, and to expand to all portions of the globe respect for the basic principles of the rule of law. The views of most of these people had been strongly influenced by a slightly mythologized, deeply depoliticized, and often aridly legal-technical view of what had been accomplished during the Nuremberg Trials of 1945–1946. For many Westerners the Nuremberg Trials had come to stand as a foundational beacon in the campaign to end respect for the much-chafed-against norm of the sovereign immunity of national leaders, and to put even the highest officials of various countries’ governments on notice that they, too, could be held responsible for atrocities carried out by subordinates acting under their command. The establishment of ICTY in 1993 and ICTR in 1994 was seen as building directly on the legal and political precedents of Nuremberg. And the momentum gained by the pro–war crimes court movement then led to the establishment of the permanent International Criminal Court (ICC) in 2002.

The research presented in this book, however, suggests that a different, much more political and more deeply historical view of the nature of atrocities as events in human affairs can be more useful than a simple, unidimensional reliance on prosecutorialism in suggesting ways to bring the commission of atrocities to an end, and to start to instill the rule of law (and, therefore, the ending of impunity) in places where the rule of law has hitherto been most flagrantly disregarded. The differing trajectories that Rwanda, South Africa, and Mozambique followed in the dozen years after their key conflict termination events/opportunities of the early 1990s have shown that the provision of amnesties did indeed allow atrocity-laden conflicts in the latter two countries to be ended on a stable and sustainable basis, and the rule of law to be considerably strengthened in both places, while a reliance on prosecutions in Rwanda failed to bring about respect for the rule of law there.

A focus on the politics of conflict termination, such as is strongly advocated here, requires close attention to the politics of both peacemaking and peace-building. I have suggested above that antagonists who are able to achieve peacemaking through negotiation can get a good head start, through that negotiating process, on some of the basics of longer-term peace-building, too—though even those antagonists who succeed in negotiating a peace are by no means guaranteed success in the peace-building task. Meanwhile, the record of the victorious (Western) Allies at the end of World War II shows that even those parties that achieve a formal “peace” through outright military victory can succeed at the subsequent tasks of long-term peace-building—provided they pay enough attention to the planning and implementation of the vital post-conflict phase and that they adopt a wise and restrained approach to governance.39

In my conversations about building a sustainable, post-atrocity political order in Rwanda, South Africa, and Mozambique, people from those countries spoke again and again about the need to have their still-pressing economic needs met, and a stable, reliable socioeconomic order built (or rebuilt) if their societies were to avoid falling back into additional rounds of atrocity-laden war. In Rama Mani’s fine study of postwar justice issues, she gave as much weight to the need for distributive (i.e., economic) justice in postwar situations as to the need for legal justice (i.e., restoring the rule of law) and rectificatory justice.40 And Roland Paris, in his study on building peace after civil conflict, identified the adoption of conflict-reducing economic policies as one of the six key tasks to be addressed in any successful peace-building effort.41 Indeed, many or most members of societies reeling from recent conflict, when asked to define the kind of justice they would most like to see, speak about burning matters of economic justice before they say anything about seeking prosecutions, trials, or punishments of wrongdoers. In this sense, perhaps, the concept of “justice” that is held by many people living in Western societies that enjoy a high degree of economic well- being has become stunted, shorn of some of the richer dimensions of justice that are still held by communities living on the brink. For most members of those latter communities, the idea that “justice” could be equated with the technical feat of conducting an orderly criminal trial would seem strange indeed. Yet that, for many in the rich West, is the first remedy they think of when confronted with unsettling facts about the perpetration of atrocities.

In this regard as in so many others, any consideration of peace-building immediately brings us to the important political question of who it should be who makes the key decisions for societies as they start to emerge from periods of grave conflict. Should it be the fourteen members of the Security Council, sitting in their offices in New York City? Should it be a consortium of nations that, egged on by rights activists from Western countries with blessedly little recent experience of war, have created a permanent International Criminal Court that may act to proscribe or limit the offering of amnesties even when amnesties could help to secure a much-needed peace agreement? Or should it be the community leaders, political leaders, and negotiators from the war-plagued communities themselves? My own strong preference is to give by far the greatest voice in making such decisions to those who have the greatest stake in their outcome—those who will have most of the responsibility for implementing them on the ground and whose families will be living for generations to come with the consequences, whatever they might be. If well-wishers in the international community seek to influence these decisions and the climate in which they are made, they can probably have the most impact for the good if they lay strong and continuous stress on the need to end conflicts, most preferably through negotiations, and on the basis of sustainable political equality, the strengthening of democratic institutions, and due attention to tasks of socioeconomic construction, rather than by laying down strict and quite a-contextual prohibitions from outside on the offering of amnesties in the context of peace negotiations.

Finally, I want to come back to the list that Martha Minow compiled (and that I introduced in Chapter 1) of meta-tasks that members of societies emerging from periods of mass violence urgently need to address. After my many discussions with colleagues in Mozambique, South Africa, Rwanda, and elsewhere, and my reflections on these experiences as outlined above, I now offer my own modified list of meta-tasks for such societies, grouped into two ranks by their urgency as follows:

Top rank (all of equal urgency):

1.  Establish rigorous mechanisms to guard against any relapse into conflict and violence.

2.  Actively promote reconciliation across all intergroup divisions.

3.  Build an equality-based domestic democratic order that allows for nonviolent resolution of internal differences and that respects and enforces human rights.

4.  Restore the moral systems appropriate to an era of peace.

5.  Reintegrate former combatants from all the previously fighting parties into the new society.

6.  Start restoring and upgrading the community’s physical and institutional infrastructure.

7.  Start righting the distributional injustices of the past.

Second rank (of somewhat less urgency):

8.  Promote psychological healing for all those affected by the violence and the atrocities, restoring dignity to them. (The top-rank tasks, if addressed, will do much to achieve this psychological healing; but it will probably need continuing attention.)

9.  Establish such records of the facts as are needed to meet victims’ needs (death certificates, identification of burial sites, etc.) and to start to build a record for history.


Several of these goals are mentioned by Minow in her listing. The most stark difference is over what each of us advocates with regard to former “offenders.” Whereas Minow advocates the “punishment, exclusion, shaming, and diminishment” of offenders, the evidence strongly indicates to me—and I hope to my readers, as well—that a well-crafted policy of amnestying, reconciliation, and reintegration of offenders will serve the long-term interests of many of these very vulnerable societies very much better.

As they consider this issue in the future, decision-makers and rights advocates throughout the world would do well to keep in mind the relatively well-known story of how amnesties enabled a breathtakingly successful political transformation within South Africa—and also, the stories of Raúl Domingos, Hermínio Morais, and their beloved homeland, Mozambique. I started this book with some very poignant testimonies from victim/survivors of atrocities such as Agnès, Nomonde Calata, and Rejoice Mabudhafasi, and I hope those stories and others like them will stay with readers. But as we look to the challenges of making and building sturdy peace agreements in troubled lands, the possibilities for the real transformation of perpetrators should also, certainly, be kept in mind.

During the Mozambican civil war Domingos, Morais, and the networks of individuals they commanded organized and perpetrated some of the worst kinds of atrocities human society has ever known. But after the war Domingos—formerly Renamo’s chief of staff—moved on to become a parliamentarian, business executive, and social thinker. Morais, the former head of Renamo’s Special Forces, became a key leader and organizer of the country’s new united military, and then entered law school. These two men, the people they had commanded, and the people against whom they had fought for fifteen long years all worked together to rescue their country from the abuses and intense suffering of the war. They succeeded in that, and they also did an admirable job of starting to build a new social and political order based on the rule of law. As the world community faces the many “justice” challenges of the twenty-first century, that record needs to be remembered and celebrated. Indeed, perhaps all of us could learn much of value from our friends in Mozambique.

*Table 6.1 Cost Comparisons Among Cases [back to text]
Each case completed at ICTR $42,300,000
Each amnesty application at TRC $4,290
Each case in Rwanda’s gacaca courts (projected) $581
Mozambique: each former fighter demobilized/reintegrated $1,075
South Africa: each former fighter demobilized/reintegrated $1,066

Source: Compiled by author from data presented in Chapter 5. (Amnesty after Atrocity? by Helena Cobban)

All other notes are to be found in the published book


End Cap


Amnesty After Atrocity?©Paradigm Publishers, 2006

Published with kind permission of Paradigm Publishers, from whom this book is available.

Just World News’ by Helena Cobban




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