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DEVELOPMENT AND REME MBRANCE: THE USE OF TRANSITIONAL JUSTICE MECHANISMS IN TRANSF ORMING A STATE FROM CONFLICT BY JENNIFER LIEB A Thesis Submitted to the Division of Social Sciences New College of Florida in partial fulfillment of the re quirements for the degree Bachelor of Arts Under the sponsorship of Dr. Barbara Hicks Sarasota, Florida May, 2011
ii For Virginia Richardson A burst of lightning on a calm quiet day.
iii ACKNOWLEDGMENTS This project would not have bee n possible without the tremendous support of a few individuals... To my parents and brother, thank you for being supportive of all of my academic interests and allowing me to pave my own path. Thank you for teaching me at a young age to pursue my interes ts, believe in myself, and that hard work does pay off. To Virginia Richardson, to whom I have dedicated this thesis. Thank you for always having some tasty treat waiting for me every time I came home from college. You have always kept me on my toes and taught me that sometimes it is best to agree to disagree and let things go. May you R.I.P. with your middle finger up to the world. To Bekki Rudolph, for never being more than a phone call away, and always knowing just what to say through all 19 years o f our friendship. (I brought the giraffe to my thesis defense, so at least you were here in spirit...) To Dr. Barbara Hicks, for sponsoring this thesis. Thank you for pulling me by the ear and helping me through this tedious process. Working with you a nd completing this thesis makes me truly appreciate the New College spirit and relationship between professor and student. Words can not even express how grateful I am for your patience and dedication. To Growlers Pub, for helping me maintain my sanity, and being the best employer a stressed out thesis student could ask for! And many special thanks to... Dr. Nat Colletta Dr. Joseph Mink Jeanne Viviani The amazing RD staff Shaun McDonough, Jennifer Goodrich, Dania Permesly Philip Carrasco Anna Folkers T homas Wheat Lee Bloch Alberto Fenix Hunter Whaley Wii Fit Netflix Frank Ribera and Brandon Croft the best night shift Starbucks Baristas. Lucky Charms Cereal (the greatest all nighter snack). The delivery drivers from Sabor Latino, Uncle Wen's, and Patelli ni's Pizza.
iv DEVELOPMENT AND REME MBRANCE: THE USE OF TRANSITIONAL JUSTICE MECHANISMS IN TRANSF ORMING A STATE FROM CONFLICT Jennifer Lieb New College of Florida, 2011 ABSTRACT In the current global political climate, states emerging from conflict are expected to reform past abusive regimes and institutions and work towards implementing a more liberal form of government committed to defending the rights of citizens. Transitional justice mechanisms are meant to facilitate growth and development in this manner to establish the foundations for sustainable peace. A vast array of mechanisms can be employed, and it is often up to the state to decide which mechanisms will best fit its needs. This portfolio examines how and why post conflict states imple ment and institutionalize these mechanisms, as well as the vital role that transitional justice mechanisms and justice sensitive approaches to reform can play in the state building process. Additionally, this study identifies some of the necessary precon ditions for successful implementation of transitional justice mechanisms such as cooperation between domestic and international actors, domestic commitment to peacebuilding and state consolidation. This study emphasizes the importance of ho listic appro aches to transitional justice that do not view each mechanism as a stand alone project, but instead
v as a piece of the larger efforts to transform the state and society to a position of sustainable peace. Barbara Hicks Division of Social Sciences
vi Contents ACRONYMS ------------------------------------------------------------viii Chapter ONE INTRODUCTION --------------------------------------------1 TWO TRUTH AND JUSTICE IN SIERRA LEONE ------------10 Two Common Trans Justice Mechanisms -----------------11 Criminal Trials ----------------------------------------12 Truth Commissions -----------------------------------15 The Case of Sierra Leone -------------------------------------18 Sierra Leon e Truth and Reconciliation Commission 20 Special Court of Sierra Leone -----------------------24 Concerns of a Simultaneous Truth and Reconciliation Commission and Special court ----------------------27 Ex Combatants and Transitional Justice ----------29 Lessons Learned and Transferability --------------------------34 Conclusion --------------------------------------------40 THREE TRANSITIONAL JUSTICE AND SSR ---------------------43 Transitional Justice and SSR ----------------------------------46 Vetting --------------------------------------------51 Case overviews --------------------------------------------53 Afghanistan --------------------------------------------53 Burundi -------------------------------------------57 Democratic Republic of the Congo -----------------61 Timor Leste --------------------------------------------63 Main Findings From the Case Studies -----------------------66 Implementation of SSR Programs -------------------------69 Conclusion --------------------------------------------78 FOUR REPARATIONS PROGRAMS IN THE TRANSITIONAL JUSTICE FRAMEWORK ----------------------------------82 The Implementation of reparations as Recommended by Truth Commi ssions --------------------------------------------86 Case Overviews --------------------------------------------87 El Salvador --------------------------------------------87 South Africa --------------------------------------------95 M orocco --------------------------------------------102 Impact of Reparations Programs on Transitional Justice ----106
vii FIVE CONCLUSION --------------------------------------------109 Summary --------------------------------------------109 S hortcomings and Points of Further inquiry ----------------112 Conclusion --------------------------------------------118 REFERENCES -------------------------------------------------------------123
viii LIST OF ACRONYMS ANPF Afghanistan National Po lice Force AU African Union BCNCA Burundi National Council to Coordinate External Assistance BFDN Burundi National Defense Forces BNP Burundi National Police BSNR Burundi National Intelligence Services CDF Civil Defense Force (Sierra Leone) CSOs Civi l Society Organizations DDR Disarmament, Demobilization and Reintegration DRC Democratic Republic of the Congo ECOMOG Economic Community Of West African States EU European Union FARDC Armed Forces of the Democratic Republic of Congo FDTL Forcas de Arma das de Timor Leste (Civil defense force) FMLN Farabundo Marti Liberation Front ICJ International Court of Justice ICTJ International Center for Transitional Justice MCCDH Morocco Advisory Council on Human Rights MJRC Morocco Justice and Reconciliation Commission NGO Nongovernmental Organization NURA National Unity and Reconciliation Commission OAU Organization of African Unity PNTL Policia Nacional de Timor Leste PRIDE Post conflict Reintegration Initiative for Development and Empowerment RUF Revo lutionary United Front SATRC South Africa Truth and Reconciliation Commission SLA Sierra Leone Army SLCDF Sierra Leone Civil Defense Force SLSC Sierra Leone Special Court SLTRC Sierra Leone Truth and Reconciliation Commission SSR Security Sector Reform TLCAVR Timor Leste the Commission for Reception, Truth, and Reconciliation TLOPG Office of the Prosecutor General TLSCU Timor Leste Special Crimes Investigation Unit UN United Nations US United States USIP United States Institute of Peace WB World Bank WWII World War II
1 CHAPTER ONE INTRODUCTION Countries emerging from a history of human rights abuses or conflict are faced with many difficulties in addressing their turbulent past. Governments can take both judicial and non judicial approaches in their pursuit of political transition from violence and repression to societal stability, and the government and relevant parties within a country must decide (often with the help of the international community) what mechanisms best suit their needs and facilitate sustainable peace in all facets of society. A state attempting to re establish itself after such atrocities is often in a fragile condition, lacking many basic capacities, and thus in need of international support. Moreover, in the post World War II (post Nuremberg) environment of the 'third wave of democracy' (Huntington 1991), states are expected to hold past perpetrators accountable in some way or other, and often they experience pressure from the international community to do so. These pr essures can take the form of economic sanctions or not engaging in trade with the state, or refusal to provide aid if the state does not implement any mechanisms to ensure accountability. Because of the state's fragile condition and need for support, thes e pressures cannot easily be ignored.
2 Since there is no set formula for pursuing accountability and moving forward, countries often decide on a set of transitional justice mechanisms that support the goals and needs of the emerging state. Transitional justice mechanisms are institutional arrangements for settling accounts with a violent or authoritarian past and establishing a foundation for a new government and renewed society. Transitional justice is not like other kinds of justice in the strictly j udicial or punitive sense, but instead it refers to justice adapted to societies transforming themselves after a period of violence and human rights violations. A variety of mechanisms exist to facilitate the transition forward, including the use of truth commissions, war crimes tribunals, the granting of amnesty, policies to reform past abusive regimes, and providing reparation all with the end goal of securing stability and safeguarding human rights. A key feature of transitional justice mechanisms is that they are not strictly defined, and are meant to be adapted to best fit each case to which they are applied. Another special consideration for transitional justice mechanisms, is that t hey are usually created at a fragile point of political transitio n, often in a post conflict scenario. Thus, they often function in very turbulent environments that lack a clear understanding of the past, and power sharing dynamics in the country between various institutions and parties that may have previously been en gaged in conflict. In most cases, the mechanisms are sanctioned by the state and, in some cases, by the opposition forces via a peace accord, so it can be hard to identify the underlying motivations of the main actors in defining the operational limits of the mechanisms. When the leaders of a party
3 associated with the conflict and committing human rights abuses remains in power, and is engaged in the negotiating process, very rarely will they agree to terms and implementing mechanisms that could potential ly incriminate them, or strip them of power. So how does a state go about answering all the questions at hand in institutionalizing transitional justice mechanisms? How does a state decide who is to receive reparations, and the process for claiming and d istributing them? And are ex combatants to receive the same reparations as victims? How is amnesty to be granted if at all? What is the anticipated product and result of holding truth commissions? Who is the target of court actions? Will the death pen alty be on the table? The choices a state makes in terms of defining and establishing the operational conditions of these mechanisms affect all sectors of society. Some seemingly small decisions such as whether to hold court cases publicly or privately, and whether to have group or individual confessions, and the granting of amnesties and reparations, can actually be pivotal in shaping the future of the society and state. For these reasons, the studies in this thesis examine the deliberate choice of stat es emerging from conflict to employ transitional justice mechanisms and the effects of how each chose to institutionalize them. In addition to analyzing what factors play into these decisions, the studies ask how the application of various mechanisms and the interplay between mechanisms transform society and state capacity. The three papers are fairly similar in their focus and approach. The first paper looks at how Sierra Leone chose to implement a simultaneous truth commission and war
4 crimes tribunal what lessons they may have taken from previous truth commissions and what motivated their decision to simultaneously institutionalize the two mechanisms. The final two papers take a comparative approach looking at how different countries have institution alized a particular mechanism. The cases and their analysis are at the center of these two papers. In each paper, the countries were chosen with the purpose of examining similarities and dissimilarities with regards to the nature of conflict and implemen tation of mechanisms. The analyses will use some of the cases that have been most pivotal in defining transitional justice practices to date, in order to evaluate how these practices can best address the general needs of transitional justice settings, as well as identify precautions that must be considered. The goal in combining this set of studies is to understand how all of these mechanisms are institutionalized by the state to achieve certain ends. A key point of transitional justice mechanisms is tha t they are adapted to the state and situation in which they are used, thus they are applied in a very deliberate manner. Hence, I hope to identify how the parameters imposed upon each mechanism affect the functioning of the mechanisms, as well as how they may limit the findings or final product of the mechanism's operational period, and thus, how they affect the state as a whole. The first paper investigates how Sierra Leone simultaneously implemented a truth commission (Truth and Reconciliation Commissio n of Sierra Leone SLTRC and war crimes tribunal, the Special Court of Sierra Leone SLSC to respond to violations committed during the conflict. It outlines contributions and possible hurdles that truth
5 commissions and war crimes tribunals provide in t ransitioning countries. Complemented by an analysis of how the way a state institutionalizes each mechanism frames the way in which the two approaches reinforce or hinder the end objectives of the other. Sierra Leone was a ground breaking case where a tr uth commission and war crimes tribunal were simultaneously institutionalized to respond to violations committed during the conflict. The investigation looks at the societal concerns, the nature of the conflict and its resolution, and how the conflict and its outcome may have affected the way certain questions in defining each mechanism have been answered, including the decision to place more emphasis on one mechanism over another. The analysis for this paper focuses on how the state defined the two mechan isms, including the motivations behind the definition, and how the definition and limits imposed affected its application. The paper then investigates the relationship that existed between the truth commission and war crimes tribunals, including special m easures that were taken to reduce the degree to which the two mechanisms may restrict one another, as their objectives are not always in accordance. The paper also acknowledges what each mechanism brings to the table to help legitimize the state and how, in an ideal situation, they can be mutually beneficial to the state. For example, truth commissions require a lesser degree of state and government consolidation and functioning to become operational than do war crimes tribunals: since they have no power of prosecution, they can become operational well before war crimes tribunals. Further, t ruth commissions often function at both micro and macro levels. They seek to identify and interview those
6 who were victims, witnesses, and perpetrators of human right s abuses. Each group often has a different account of what happened. At a macro level such commissions are often mandated to assess underlying patterns, trends, causes of conflict (ideological or political justifications), and the magnitude of the violen ce, in order to recommend legal and institutional reforms to prevent conflict from rekindling. War crimes tribunals would be hard pressed to come by such conclusions with their limited scope of investigation The final reports of truth commissions can pr ovide (Kritz 1997, 14) of the suffering and plight of the people, an essential step in moving on (Hayner 1994). But truth commissions are not a sufficient substitute for war crimes tribunals. The use of domestic cou rts, in particular, can enhance the legitimacy and credibility of a fragile new government more than a truth commission by demonstrating its resolve to hold individuals accountable for their crimes and showing that this behavior will not be tolerated. Suc h credibility can win the new regime both domestic and international support. Furthermore, prosecutions can provide victims with a more concrete sense of justice and retribution a confirmation that their grievances have been acknowledged and addressed a nd can more easily be put to rest. War crimes tribunals can also serve to establish a new level of functionality and expectation in the society by creating an understanding that these actions will not be tolerated. Another essential function towards reco nciliation that criminal trials serve is to identify and prosecute the individuals perpetrating and leading the abuses, instead of attempting to lay blame on
7 entire ethnic, religious or political groups, which would do little but perpetuate the divisions b etween groups and likely fuel further violence and hatred (Schabas 1088 1090). Each mechanism fulfills different essential steps in the reconciliation process in its basic theoretical framework, and the way each state chooses to mold the institutionalizat ion of the mechanisms affects how significant and beneficial the steps are for society. The following two papers investigate how the implementation of other mechanisms play into the state building process in the post conflict environment. The second stud y examines the importance of reforming abusive security systems and governmental institutions in order to prevent recurrence of atrocities. Government agencies such as police and military forces and other security agencies, not just non state actors (i.e. rebel groups, private security forces), are often responsible for widespread, systemic human rights violations during conflict. This paper examines the process of reforming the security sector in a post conflict state. It looks at how reforming the secu rity sector with a transitional justice approach can contribute to the institutionalization of democratic norms. It is a generally accepted notion that for any sustainable peace to be established after a civil conflict, the security sector will have to be reformed at least to some degree to shift priorities from a state of active conflict to relative peace, and to help legitimize the security forces and new government. However, there is no standard for how these reforms should be implemented and what the focus of the security sector reform (SSR) should be, and many approaches have been tried. The
8 paper, first looks into the debate over the use of security sector reform SSR as a means of peace building and state building, with an emphasis on what impact se curity sector reform can have on the greater goals of transitional justice and democratization. The paper examines four cases Afghanistan, Burundi, the Democratic Republic of the Congo, and Timor Leste to better understand the process of structuring a nd implementing a security sector reform project. Each case presents a different approach to security sector reform, and they produced varied outcomes. The third paper looks into the use of reparations and restitution as transitional justice mechanisms to restore victims to the condition they would have enjoyed had no violations of their rights occurred. It examines the development and use of reparations in international law and practice over the last century in order to provide context for recommendat ions on how restitution can best address the needs of contemporary transitional justice settings. The analysis uses some of the cases that have been most pivotal in defining reparation and restitution practices to date. The issue of reparations has featu red prominently in many peace negotiations and political transitions since WWII. The return or granting of land and homes is viewed as a means of redressing past injustices. In the transitional justice framework, the aim of these programs is to serve as an inclusionary policy to help reintegrate victims, and in some cases, post combatants into society. In the post Cold war period, property restitution in particular has been a popular means of addressing and reintegrating internally displaced persons (IDP s) after conflict (Rohdri 2007, 1). The paper looks into
9 the use of reparations in a transitional justice framework in three countries emerging from conflict: El Salvador, South Africa and Morocco. The three papers can thus be understood as an examinat ion of the adaptability and malleability of transitional justice mechanisms in helping societies transform from mass human rights violations. The papers complement each other with their focus on efforts to stabilize and consolidate the government and soci ety of a state emerging from conflict. Each paper and the related cases show how complex and difficult of a task this often proves to be. While there are broad lessons to be learned from every attempt at implementing transitional justice mechanisms, each case provides a unique set of challenges to successful implementation and, for this reason, each case must be carefully planned. This portfolio examines many of the challenges experienced in the planning and institutionalization of transitional justice m echanisms and how they fit into the greater goals of peace building, and consolidation of the emerging state.
10 Chapter Two The Truth and Reconciliation Commission and Special Court of Sierra Leone Countries emerging from a history of human rights abu ses or conflict are faced with many difficulties in addressing their turbulent past. The government can take both judicial and non judicial approaches in their pursuit of political transition from violence and repression to societal stability, and the gov ernment and relevant parties within a country must decide (often with the help of the international community) what approach (or approaches) will best suit their needs, and facilitate growth and sustainable peace in all facets of society. In this paper I will present some of the difficult choices that governments are faced with in deciding how to pursue transitional justice in a post conflict situation: Will judicial or non judicial approaches be more effective? If judicial, how should a court system be established to best serve justice? Will a domestic or international court be better suited? Who should the courts pursue? Will criminal justice do enough to sufficiently facilitate reconciliation within society, or should additional options be explored? If there is a combination, how will institutions interact? And how will the
11 institutions work with society at large? Following this, I will explain the process that Sierra Leone has chosen to pursue transitional justice, challenges they have faced, the interplay between the truth commission and the special court. Sierra Leone was chosen as the primary case in this study, for its unique approach to transitional justice by simultaneously implementing a judicial and a non judicial investigatory institutio n. The government of Sierra Leone took great care in mediating international support and domestic interests and needs during the planning process. As a result, a strong sense of domestic support for and investment in the processes was widespread. Sierra Leone relied heavily on international expertise, seeking advice from the UN and the ICTJ which have previously contributed and aided with the with war crimes tribunals. W hile accepting this international support, the government of Sierra Leone took the necessary measures to defend national interests, and where possible incorporate and address concerns of civil society. During the planning process the government of Sierra Leone took great care in outlining the powers, and operational limits of each institution in order to limit overlap in investigations and reduce any conflicts of interest between the two bodies. As a result of this careful planning, Sierra Leone is genera lly viewed as a successful case for the simultaneous implementation of a truth commission, and domestic war crimes tribunal which is still operational. Two Common Transitional Justice Mechanisms Transitional justice mechanisms can be used to address man y past injustices associated
12 with conflict, and contribute to the peace building process. The following is a review of academic discourse on the use of criminal trials and truth commissions in post conflict states in order to recognize and address a histo ry of violence. Criminal trials In helping countries cope with past mass abuses, the process of criminal accountability can serve several functions. Prosecutions can provide victims with a sense of justice and retribution a confirmation that their g rievances have been addressed and can more easily be put to rest. They can also serve to establish a new level of functionality and expectation within the society by creating an understanding that aggressors and those who attempt to abuse the rights of ot hers will be held accountable. Another important function towards reconciliation that criminal trials serve is to identify and prosecute the individuals behind and leading the abuses, instead of attempting to lay blame to entire ethnic, religious or polit ical groups, which would do little but perpetuate the divisions between groups and likely fuel further violence and hatred (Schabas 2004, 1088 1090). Criminal trials can take many different forms. The two main forms of them are international and domesti c courts (Kritz 1997, 3). So the question stands: When trials are undertaken are they better conducted by an international tribunal or by the domestic courts of the country concerned? The simplest answer is that it depends upon the situation. Internatio nal tribunals are better suited to convey a clear message that the international community will not overlook or tolerate such atrocities (Kritz 1997, 3).
13 Thus, they further the development and enforcement of international criminal norms and discourage fut ure mass abuses of the sort. International courts are often UN sanctioned and thus can pull from many different resources for staffing, funding, etc. and can often handle cases of much greater magnitude. For this reason, international tribunals have a greater chance of obtaining physical custody and extradition of perpetrators that have fled the country that the crimes were committed in. Also, because the tribunals and much of the staffing are further removed from the conflict, they are often viewed as operating more on the basis of impartiality and the rule of the law than retribution (Kritz 1997, 3). In localized conflicts, such as civil wars, a major problem that often arises with international tribunals is that the process of justice is not easily accessible or visible to the victims of the abuses. It is the people directly affected by the conflict, more than the rest of the world, who need to see the tribunal at work. They need to be assured that they have not been forgotten, and that the interna tional community is dedicated to the establishment of justice and accountability for the crimes committed. In the end, the weaker the connection between the international operation and the local population, the more likely conflict is to re ignite as a re sult of the locals dismissing the work of the courts as not doing enough, and being too distant from the actual concerns in the country (Kritz 1997, 3 4). On the other side of the spectrum there is the prosecution of war crimes before domestic courts, whi ch has its own set of benefits for the affected. For starters, domestic courts tend to engage in very high profile proceedings that are very accessible to, and
14 receive much attention from the local population. For this reasons they are more sensitive to more immediate symboli c force because verdicts would be rendered by courts familiar to the local community" (Preliminary Report of the Independent Commission of Experts Establis hed in Accordance with Security Council Resolution 935, 1994, 31) The use of domestic courts can also help enhance the legitimacy and credibility of, and thus gain domestic and international support for, a fragile new government by demonstrating its reso lve to hold individuals accountable for their crimes and showing that this behavior will not be tolerated (especially if the courts are successful in implementing rulings). Which is often an element that the government and officiating bodies try and empha size. However, in post conflict states resources are often limited, and corruption in the government (including the judicial system) often runs deep. For this reason, many scholars warn against rushing into an entirely domestic system of trials, instead favoring a court system that allows for some international involvement and support to maintain stability in the state as the courts are set up and while trials are under way. Allowing some international involvement in domestic court systems and trials, es pecially those targeted at addressing war crimes, has the potential to help enhance the legitimacy of the court, and provide a set of outside eyes to ensure that the trials are held in a fair manner. While criminal courts can provide effective means of pr osecuting those most responsible for mass atrocities, they often lack the ability to adequately facilitate the reconciliation process for the society as a whole. As effective as they can be, the courts
15 are still unable to hear out and investigate all comp laints filed by victims, much less try all of the accused. Attempting this would be impractical on the international level it would be flat out impossible, and at the domestic level such an attempt would be politically destabilizing, socially disruptive and logistically and economically infeasible (Kritz 1997, 7 8). It is shortcomings of the courts such as this that leave a void for other institutions, such as truth commissions, to fill in order to complete the process of transitional justice and help the society move on from such a horrendous past. Truth Commissions Truth commissions vary greatly in mandate, scope and process, and it is difficult to define such diverse processes under one conceptual framework. However, most investigations and anal ysis seem to rely upon or work from Priscilla Hayner's definition of truth commissions as official, temporary bodies established to investigate a pattern of violations over a period of time that conclude with a final report and recommendations for reforms (Hayner 2006, 295). Broadly speaking, truth commissions attempt to uncover the truth behind histories of mass human rights violations. Their role is to find the truth among all the differing accounts and confusion and to document and acknowledge the tr agedies that have occurred as a step towards healing wounds (Hayner 1994, 597). From this basic framework, truth commissions are shaped by a myriad of factors within a state. They are usually officially sanctioned by the state and in some cases, by the o pposition forces, via a peace accord, or by an international nongovernmental organization (NGO) such as the United Nation (UN) (Olsen et al 2010,
16 34). They are generally created at a point of political transition, either from war to peace or from authorit arian rule to democracy or some other liberal form of government (Olsen et al 2010). Thus t ruth commissions often function in very turbulent environments that lack clear definition; definition of the past, and who has been and is now in control. The co mmissions are largely limited and shaped by the types of truth they are mandated to pursue and identify. Within each truth, and for the larger picture they must function at both micro and macro levels, their depth of analysis and operational terms are oft en limited by political compromises that must be made between the significant actors within a state. For example many leaders who were behind the violence and abuses who maintain positions of power try to impose conditions that limit the scope of the comm ission and their ability to investigate the past in order to protect oneself. In Guatemala, this could be seen with the condition that witnesses could not name individual perpetrators when reporting any incident of violence (Parlevliet 1998, 4). In South Africa, another method of self interest employed by ruling elites can be seen with the application of a blanket amnesty for all crimes committed during the time of conflict under the apartheid regime (Chapman and Ball 2001). Despite these restrictions, tr uth commissions are mandated to provide a complete picture of the conflict and driving forces behind it. In doing so, at the micro level truth commissions seek to identify and interview individuals who were victims, witnesses and perpetrators of human rig hts abuses. Each often has a different account of what happened. Victims and witnesses come forward and contribute to truth commissions with an understanding of the pursuit of truth as an efforts to document and thus validate their
17 memories of these even ts. Perpetrators come forward for a myriad of reasons, in some cases incentives such as amnesty were offered to perpetrators who divulged information related to the conflict. In other cases perpetrators came forward to engage in the therapeutic practice of truth telling. While all of these accounts are necessary to the investigative process, the sum of private experiences alone does not fully reveal the truth. Truth commissions must also assess patterns, trends, locations, and the magnitude of the viole nce. At this macro level of investigation and reporting, they must try to understand the underlying causes of conflict and identify the ideological or political justifications used to legitimize the abuses (Hayner 1994). With this information commissions often recommend legal and institutional reforms that should be taken to prevent conflict from rekindling, conclusions that courts would be hard pressed to come by from their limited focus on individual cases and perpetrators. Given the magnitude of such a task, and given that truth commissions often have limited resources and are mandated to operate in a restricted timeframe their ability investigate all potential cases or events is infeasible, so they must be selective in their approach and in choosing w hat to emphasize and focus on. Often choosing representative or significant cases, which some fear can lead to an oversimplification of the analysis, or that it may distort the original analysis. Truth commissions are also often established with additio nal agendas, such as overcoming stigmas, stereotypes and prejudices, facilitating reconciliation depending on what their officiating body places emphasis upon (Minow 1998). And while they do not have the power to prosecute, many have recommended that pros ecutions take place, and
18 some commissions have gone so far as to share their archives with prosecuting authorities (Hayes 2006, 296), whereas other commissions have been denied the ability to even record and report specific name and case details (Chapman a nd Ball 2001). Each truth commission must be rooted in the realities and possibilities of its particular situation. While international actors can play a major role in assisting with various processes and structuring, truth commission process must reflec t national sometimes controversial history. Operating within the confines outlined in the mandate, truth commissions must aim to best understand and report the origins an d nature of past conflict and the factors that allowed abuses to take place, and to do so in a manner that is both supportive of victims and inclusive of a wide range of perspectives within the state. The Case of Sierra Leone In 1991, Foday Sankoh, a S ierra Leonean politician, with the support of Charles Taylor in neighboring Liberia, formed the Revolutionary United Front (RUF) and initiated a decade long civil war. The RUF was created to challenge the corrupt one party system that had been in place si nce 1978 in Sierra Leone (Lord 2000). Another central cause of the war was deep rooted corruption, lack of accountability, and greed that reduced most of the people to a state of poverty, which provided "ripe breeding grounds for opportunists who unleashe d a wave of violence that...[swept] through the country" (PERI, 1). The RUF kidnapped children to serve as its core fighting force, and
19 often forced the children to take drugs and attack their own villages so that they would abandon connections to their f amily and home and would have to look to the RUF for support and protection (Keen, 76). The standing Sierra Leone Army (SLA) was poorly trained and unable to contain advances from the RUF. The SLA was also not the most sound and just of military forces; SLA soldiers were (also) guilty of kidnapping women and pillaging towns they were supposed to be protecting (Lord 2000). It was found that many soldiers would frequently move between the RUF and SLA, siding with which ever force appeared to have the upper hand (Lord 2000; PERI, 1). A third armed force appeared in Sierra Leone the Civil Defense Force (SLCDF) also known as the Kamajors. The CDF started as a series of independent community based protection groups, but morphed into yet another roving militia that threatened civilians (Lord 2000). Military coups and elections resulted in a change in government leadership five times during the war (PERI, 1). In 1998, and again in 1999, A Nigerian led West African intervention force, the Economic Community of West African States Monitoring Group (ECOMOG), battled the RUF for control of Freetown (PERI, 1). Later, in mid 1999, the UN brokered the Lom Peace Accord between the warring parties. A large number of players were present for the negotiations including "the Sierra Leonean populace and government ; the [RUF]; regional and international organizations (such as Economic Community Of West African States ( ECOWAS), Organization of African Unity (OAU), the UN and the Commonwealth); and the governments of Nigeria Guinea, Liberia Burkina Faso, Libya, Togo, the US and the UK" (Lord 2000).
20 In the agreement rebel leaders were promised positions in the government. The peace accord also mandated the establishment of a Truth and Reconciliation Commission (SLTRC) (Pea ce Agreement, signed 7 July 1999). UN peacekeepers arrived in Sierra Leone, but RUF forces took many of them hostage and forced their withdrawal from rebel held territory. The fighting continued, and, in 2000, British forces intervened to end the conflic t, and capture Sankoh. British troops remained in Sierra Leone until 2002, when the war was declared over, and helped to retrain the SLA and disarm over 45,000 rebel forces. In 2002, the country held peaceful elections, and the United Nations agreed to p rovide support for a war crimes tribunal to be established in Sierra Leone (PERI; Lord 2000). Sierra Leone Truth and Reconciliation Commission The SLTRC was established "to create an impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed promote healing and r econciliation and to prevent repetition of the violations and abuses In 1999, the Revolutionary United Front/Armed Forces Revolutionary Council and the current government of Sierra Leone agreed to include provision for a t ruth and reconciliation commission in the Lom Peace Acreement. Established to look at violations of international law and human rights during the war in order to determine
21 their context and causes. In 2000, Parliament passed the Truth and Reconciliation Commission Act, a law to establish the SLTRC and specified how the SLTRC was to be structured and how it would operate. The SLTRC was established as an independent body in an effort to ensure the objectivity of the investigators and final report. It was composed of four Sierra Leonean, and three international commissioners. Some scholars believe that this approach allowed 2001, 220; also expressed in Schabas 2004). The goal of the SLTRC was not to punish searching and acknowledgment of acts by mes Allen, et al. 2003, 5). The final report of the Truth and Reconciliation Commission was unbelievably thorough and presented some insightful findings, and useful recommendations. Such as the Commission determined that the central cause of the war was corruption and nepotism that deprived the nation of its dignity and reduced most people nleashed a SLTRC; Vol 2: Ch 2). colonial (Schabas 2004, 1085). However, the report did not dismiss or shift blame from the role that the
22 Revolutionary United Front played in the conflict, especially since it was the RUF that had launched the war in 1991. The Commission seemed to acknowledge that most of the conflict. The report also pointed out that the SLA, and pro government CDF, committed many human rights violations (often on the same level of those committed by the RUF). This finding was in line with the investigations and findings of the Court as well. Accordingly, leaders of both the RUF and CDF have been indicted and arrested by the Special Court (ICTJ Sierra Leone). Because the government is bound to obey any recommendations made in the report is full of far reaching suggestions often centered on major issues related to human rights. Many of the recommenda significant economic consequences, and therefore conceived in such a way as to be not invoke cost implications to get o ut of their obligations. as well as the immediate dismissal of all outstanding death sentences. Both the UN Human Rights Committee and the African Commission on Human and P have condemned the abusive use of capital punishment in Sierra Leone, which has generally been used by the government as a means of intimidating political opponents which was used throughout the war. The Commission also called for the immed iate
23 Prison. With respect to children, the Commission noted the suffering that they endured during the war, called for the prohibition of all forms of corporal punishment of children, and laid out recommendations for a program to reintegrate child soldiers back into society. The report also recognized that there is much overlap between two classifications of children in Sierra Leone brutal children, and brutalized childr en. In Sierra Leone children were made the backbone of the combatant forces (Schabas 2004; PRIDE and ICTJ 2002, 11). Their immaturity and general lack of knowledge made them particularly vulnerable to manipulation by the adult leaders of different groups The children were often kidnapped and forced to fight in the war, with little, if any, say in the difference between the two groups of children laid not with their personal characteristics or psyche, but instead in whether or not they were forced to take up arms. The Commission made recommendations that reintegration efforts conside r programs for quality in them, and reform is unlikely (Totten 2009; ICTJ 2006; PRIDE and ICTJ 2002, 11). Interestingly enough, the use of child soldiers in S ierra Leone was not new or unique to this conflict (Schabas 2004). military leaders of both the RUF and the pro government militias had begun their military careers as children soldiers themselves. They had been recruited to British
24 colonial forces in the 1950s, when they were in their teens. And it was actually the during the civil war to describe combat units of children as young as 10 (Schabas 2004, 1087). By no means did this excuse the use of children in combat, but simply provides some insight into its origins in the area. And contributed to the macro level truths the Commission investigated to better understand the conflict. The recommendation section for the report of the Sierra Leonean Truth and Reconciliation Commission was much more in depth than that of many other truth commissions thus far. Unlike with the conflict in South Africa or Guatemala, there was no d The South African Truth Commission did not have to clarify that apartheid and racis m should be eradicated, and that they were damaging to society. This notion was already soundly accepted as a norm. Thus the Sierra Leonean Truth Commission, in its recommendations, attempted to map the way to broad political and institutional reforms to facilitate social transition, prevent future conflicts, and stabilize the country. Special Court of Sierra Leone In 2000, President Kabbah wrote a letter to the UN Secretary General requesting assistance in prosecuting those who committed crimes aga inst humanity during the civil war. national law did not contain any provisions for the prosecution of war crimes or crimes
25 against humanity; moreover without support the gov ernment could not afford to finance a thorough prosecution of the crimes committed (ICTJ 2006, 13). In August 2000, the Security Council supported the creation of a court to try persons who bore the greatest responsibility for serious violations of intern ational humanitarian law and the laws of Sierra Leone, and mandated the Secretary General to negotiate an agreement with the government of Sierra Leone to this effect (U.N. Doc. S/RES/2000/1315). Debate over the structure and composition of the court rag ed on, and it was not until January 2002, that the UN and the government of Sierra Leone reached a formal agreement on the court. In April 2002, the Special Court Agreement Act (2002) was adopted to facilitate the operation of the Court and recognize Sier commitments under the agreement with the United Nations. Unlike the tribunals for Rwanda and Yugoslavia, the Special Court in Sierra Leone was established on the basis of an agreement between the UN and the government of Sierra Leone, it was no t sanctioned by the UN Security Council though 1 The hope was that structuring the program in this manner would result in a more efficient and cost effective model for the achievement of justice than the ad hoc UN tribunals. The court was to be based in the country, and would be a new kind of hybrid arrangement consisting of both international and Sierra Leonean components (Olonisakin 2008, 118 119). The Special Court is of mixed composition, with seven international judges and 1 The Security Council Resolution 1315 was not a mandate for the creation of the court, but instead a voicing of support and coo peration in the establishment of a war crimes tribunal in Sierra Leone. In the end, planning of the court was to be left to the government of Sierra Leone. At the time the resolution was made the government of Sierra Leone had already expressed a desire to create a war crimes tribunal.
26 four Sierra Leonean judge s, charged with applying both international criminal law provisions (crimes against humanity, violations of Article 3 of the Geneva Conventions, etc) and violations of Sierra Leonean domestic law. Trials are to take place in Sierra Leone, except for in ex ceptional cases that may threaten stability or cause uprising if held in Sierra Leone, in which case they will be taken to the Hague and await trial there such as with the case with Charles Taylor, the former president of Liberia, and major backer of the RUF and AFRC (Schabas 2004, 1085). Trials before the Court did not begin until June 2004 well after the operational There was some overlap in 2003, when the Court was holding investigations, indictments, arrests and preliminary judicial proceedings. Establishing the Court as a combination of international and domestic law, allowed the Court to get around the amnesty clause in the Lom Peace Agreement, which Government of Sierra Leone shall also grant absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in Peace Agreeme nt, signed 7 July 1999 Article XI: 2). While joint jurisdiction provided the court a way around this clause, it also presented a challenge to the establishment of the court because by domestic law, it was illegal to prosecute anyone for war crimes in Sie rra Leone. In the end the clause failed to protect people from responsibility under international law for their crimes (James Allen, et al. 2003, 30). To date, thirteen people in Sierra Leone have been indicted for war crimes, crimes
27 against humanity and other violations of international humanitarian law, of those thirteen, eight have been convicted (ICTJ Sierra Leone 2011). Concerns of a Simultaneous Truth and Reconciliation Commission and Special Court n to ensure that the Special Court for Sierra Leone and the Truth and Reconciliation Commission will operate in a complementary and mutually supportive manner, fully respectful of their distinct but neous establishment of the Truth and Reconciliation Commission and a Special Court in Sierra Leone to address massive human rights violations during the civil war gave rise to a number of concerns, but for the most part, the two institutions have managed t o operate concurrently sans problems. The SLSC and the SLTRC each fulfill different but compatible roles in ensuring accountability in Sierra Leone. A very limited number of perpetrators deemed most responsible for human rights violations are being trie d in the Special Court. And few So the Commission serves as the main forum for victims and others to share their experiences and have them documented in an official manner which contributes to The SLTRC was pivotal in making positive recommendations for political, legal, administrative and social reform, thereby reducing the chance of repeated offenses
28 likelihood of a return to violence by showing that such actions will not be tolerated (Wierda, et al. 2002, 2). Efforts w ere made by the government of Sierra Leone and NGOs operating in the country to inform the population of the complex relationship between the two institutions, in hopes of stimulating interest and participation in the processes. One such effort could be s ICTJ and national government which informed citizens of the objectives and purpose of each mechanism.. Although, the Special Court and SLTRC are entirely different institutions, they a re related in the sense that they both are operating to bring a just and sustainable peace to Sierra Leone. (James Allen, et al. 2003, 37). relationship was carefully planned out to avoid overlap. There was much concern about informa tion sharing between the SLTRC and Court, especially among ex combatants who were afraid of being prosecuted by the Court for statements they make to the SLTRC. Prior to any cases being held by the Special Court, a statement was released by both instituti ons addressing this concern: The SLTRC has stated that it will not give the Special Court any information. [And] the Prosecutor of the Special Court has said very clearly that even if he has the power to get information from the SLTRC, he will not reques very important for all Sierra Leoneans to feel comfortable giving information to the SLTRC without fearing prosecution (James Allen, et al. 2003, 39).
29 Information sharing between the two institutions was probably the greatest fear of having the two operate simultaneously, and it turned out not to be a major problem as each institution recognized the objectives of the other. One of the few ways this fear could be seen as a problem, was that some ex combatants, especial ly those of a high rank, refused to participate in the SLTRC fearing that the information provided would be used against them (PRIDE and ICTJ 2002, 11). Ex Combatants and Transitional Justice Some special considerations and concerns related to ex combatan ts, and their relationship to the SLTRC and SLSC have already been discussed, but given their strong presence as a group in Sierra Leone I felt their unique relationship to each institution warranted further investigation. Ex combatants' engagement with t he Truth and Reconciliation Commission and Special Court is necessary for the success of both institutions. Additionally, the institutions can provide benefits to the ex combatants combatan ts need the Truth and Reconciliation Commission and the Special Court to help them make sense of 2). While both the institutions and ex combatants stand to gain much from the other, the relationship between the two is very delicate. The fear of indictment under the Special Court kept many ex combatants from participating in the process, even if they supported the underlying objectives of the regimes 2 Special measures wer e taken to help them understand the goals and operations of each institution to quell these fears ( James Allen, 2 See the survey findings in PRIDE and ICTJ 2002, as described below.
30 et al. 2003, 39) Ex combatants have a rare insight as to the nature of the conflict what started the conflict, how soldiers were recruited, how the conflict was fought and perpetuated, etc. This knowledge is essential for the truth commission to be able to produce an accurate report documenting the conflict. Such insights are also vital to the Special Court as evidence to identify and indict those most responsible for the conflict. A study conducted by the Post conflict Reintegration Initiative for Development and Empowerment (PRIDE) in partnership with ICTJ revealed that many ex combatants (and not just those who were children as previously discussed) also perceived themselves as having been forced to join under fear of violence, and subjected to the influence of forcibly administered drugs CTJ 2002, 11). When viewed in this context, their insights are even more valuable to the SLTRC as they provide the perspective of both ex combatant and victim. So how did the ex combatants perceive these institutions? The study done by PRIDE and the ICT J, showed surprisingly high ex combatant support for both institutions. PRIDE conducted two interviews with ex combatants in four communities with large ex combatant populations in Sierra Leone. The first interview they did without providing any informat ion on the institutions to the ex combatants, so it was based on what the people had learned about these institutions through channels such as the government, mass media, and interactions. Then they put the ex combatants through educational workshops that explained the mandates of both institutions, their legal rights,
31 what each institution is trying to accomplish, etc. Then they repeated the survey. After combatants suppor With 60% saying that they were willing to speak before the TRC after the workshops, a 20% increase from before (PRIDE and ICTJ 2002, 5). Support for the special court rose from 59% before the w orkshops, to 79% after (PRIDE and ICTJ 2002, 5). The survey found that ex the TRC because they believe the TRC could help facilitate the reintegration process into their former communities. The five most common reasons provided for wanting to and ICTJ 2002, 15) and the Tru th and Reconciliation Commission could provide a forum for addressing this desire, and provide an opportunity for their apology to be officially documented. The two main reasons they were skeptical or unwilling to testify before the SLTRC was the belief th at it would be too painful to speak of the past. And the fear that the SLTRC may share information to the Special Court for prosecutions despite assertions that this would not occur. The survey found that in general, ex combatants were less supportive of the
32 Special Court than of the TRC. Which makes sense given the prosecutorial powers of the Court. However support for the SLSC did increase as ex combatants were better at prior to the information session nearly a third of the ex combatants expected the SCSL to try all perpetrators (PRIDE and ICTJ 2002, 16). Once informed that the Court was only mandated to indict those most responsible for the conflict, m ost ex combatan ts cited that they wanted to see their commanders brought to justice. However, under current situations, they were unwilling to testify (PRIDE and ICTJ 2002, 16). In this context current situation refers to the status that many ex combatants are in the economic independence from commanders and have deeply ingrained fears of disobeying more likely to testify if witness protection would be provided, and if furthe r reintegration and job creation programs would be directed towards them so that they would no longer rely on ties to their former commanders (PRIDE and ICTJ 2002, 17). repor t recognized the ties that many ex combatants had with the factions they served with further reintegration programs for ex n (Patel, et. al. 2009, 21). Building on this conception of reintegration, the SLTRC report emphasized the importance of reintegration into local communities, providing r ecommendations to the civil society at large, instead of just policy makers. In the Final
33 report the SLTRC stated that communities are to act with compassion in accepting ex combatants, and to engage in traditional activities to facilitate reintegration i nto their former communities for victims and perpetrators (SLTRC Final Report Vol 2, Ch 3). Follow through on these recommendations and concerns have been made, most notably in the form of job programs targeted at ex combatants. However, oddly enough, a p erceived increase in authentic reintegration occurred with the ending of reintegration policies that provided reparations to ex combatants. Patel, et. al. speculate that this could be a result of leveling the playing field between victims and ex combatant s by dispelling thoughts that ex have ruined us are being given the chance to become better persons financially, academically and skills d from such programs (Patel, et. al. 2009, 150). With the end of reparations to ex combatants, they were now subjected to the same daily struggles as victims of the conflict. A collective identity could be formed now on the basis of similar community con cerns. This is not to say that reintegration programs are not of value to ex combatants or the state at large, or to dismiss the recommendations of the Commission. If anything it highlights many of the d labeling people as victims and combatants, for many combatants were victims, and at times many victims were forced to fight for their lives. The Commission made very few recommendations targeted specifically at reintegration for ex combatants, but inste ad recommended policy changes, and programs for consolidation of the state and civil society as a whole, at both community and national levels.
34 Lessons Learned and Transferability So why did the simultaneous creation and operation of the two institutio ns work relatively well? The strong presence and acceptance of international influence played a major role in their success. The government of Sierra Leone welcomed the knowledge and experience that international actors could provide. Great care was als o taken in planning the Truth and Reconciliation Commission, and the Special Court. Sierra Leone looked to the United Nations for monetary support, professional staff, expertise, and general guidance. The international community was able to provide resou rces that both institutions otherwise would have been without. More importantly, the scope of the two institutions and the limits on their operations were clearly defined. Additionally, a fair amount of research had already been done on previous truth co mmissions and war crimes tribunals. As a result, the government was able to analyze previous institutions with consideration for what was seen as most important in Sierra Leone. For example, unlike in South Africa or Guatemala, there was no major regime overthrow, or underlying religious ideology, so measures taken in South Africa and Guatemala to incorporate or address these sentiments were not relevant. In planning, they were able to model the institutions on previously tested models, and shape them to fit the context of Sierra Leone. This could be seen with the use of domestic and international professional staff in both the SLTRC and the Special Court.
35 The SLTRC, in particular, reflected some lessons learned from past truth commissions. The Commiss ion was provided a preparatory period for administrative matters and planning so that these would not detract from its official operational period. This was a problem present in the South African Truth Commission, as much of their operational period was s pent working out the logistics of how and where to hold each commission hearing. Another comparison can be drawn between how the Sierra Leone, and the South African Truth Commissions addressed amnesty. In Sierra Leone, blanket amnesty was applied to all combatants for crimes committed during the time of war. Whereas, in South Africa amnesty was used as an incentive for ex combatants to come forward and provide accounts of politically motivated war crimes. The result was that many ex combatants in Sierra Leone chose not to contribute to the SLTRC since they had no incentive to do so, and feared the possibility of information sharing. But this was not entirely a deal breaker for the SLTRC. The SLTRC did not focus solely on personal accounts of conflict, for it is not clear that any victim or perpetrator can provide eyewitness could provide an e ntirely objective account of the conflict, nor could they offer a comprehensive narrative of the war and its broader context. The SLTRC seemed to recognize this as only 4% of the statements taken by the Commission were that of public testimony. Furthermo re, the SLTRC was also given almost full investigatory powers, including the power of subpoena and search and seizure encompassing even government offices and official records. This careful planning was not done only by the
36 TRC, but also by the Special Co urt. Both institutions sought to minimize overlap in their proceedings and reporting, and to avoid restricting the goals of the other. The Special Court of Sierra Leone, also considered past institutional models and political structures. Unlike with Rwa nda and the former Yugoslavia, the Special Court was mandated to take place in Sierra Leone. The previous two cases were seen as too turbulent to be handled in the country without risking destabilizing the emerging government. There was also little trust from the international community at large that the domestic government in Rwanda or Yugoslavia had the capacity to hold a fair trial. In Sierra Leone, a compromise was found between the domestic courts and international courts creating a hybrid court to address war crimes. Another circumstance that allowed these institutions to function relatively successfully was the involvement of domestic actors government, civil society, NGOs, etc so that there was a sense of ownership and investment of the people in each institution. While there was a strong international presence, there was even more national involvement. Public opinion of the institutions was often evaluated and monitored through polls in both their planning and operational periods. So could the se circumstances exist elsewhere? I believe they could. If the conditions are right, and the government and civil society are open to the idea of international involvement, without letting international forces dominate the proceedings. In states such as Guatemala, where an oppressive regime is still in power after a war, I do not think a similar truth commission or special court could be set up and operationalized. In the truth commission Guatemala did have, victims were not allowed to cite specifics of
37 abuses suffered, such as who specifically was committing or ordering the abuses. The state, including all relevant, major actors, must be invested in the peace process and in reconciliation for there to be any hope of an objective truth commission and fa ir trials. I believe this serves as a necessary condition for a truth commission or tribunal to be positioned in such a way that they can contribute to the reform process. If domestic support and commitment to transitional justice goals are not present, and the institutions that previously fueled the conflict remain in place, the peace building capacities of both institutions are limited. There has yet to be another case of a truth commission and court system simultaneously being institutionalized to the extent that they were in Sierra Leone. However, a similar approach to reconciliation and increasing accountability was implemented in Timor Leste, or East Timor. In Timor Leste the Commission for Reception, Truth, and Reconciliation (TLCAVR) and a UN pro secutorial body, the Special Crimes Investigation Unit (TLSCU), and later the Office of the Prosecutor General (TLOPG) were institutionalized (Totten 2009, 11). In both cases, domestic support for transitional justice mechanisms, and the implementation of a truth commission were high. In Sierra Leone there was also a high level of support for a court system, whereas in Timor Leste, the state was not necessarily in favor of institutionalizing a court for prosecuting war criminals, however civil society sup ported the notion (Totten 2009, 32). For the successful institutionalization of either mechanism, domestic support and cooperation is necessary. As is domestic commitment and investment in the processes, as such domestic populations must understand why t he
38 institutions are being implemented, and what their purpose in the state is. Without a strong level of support the institutions would be hard pressed to be fully operational, and the long term effects of their processes are unlikely to be experienced. For example, if a truth commission does not have domestic support, and is not understood, people are unlikely to come before it and provide testimony. And if the government is not committed to, and feel as though it has a stake in the commission it is unl ikely to follow through on any recommendations made by the commission. This risks associated with not having domestic support from the state and society can be seen in Timor Leste with the TLSCU (internationally led and staffed body) and the Office of the Prosecutor General (domestic body). In Sierra Leone, and Timor Leste there was considerable international engagement in the peace process and implementation process. Both countries welcomed international expertise and support in establishing a truth com mission, most notably from the ICTJ and UN. Each country also considered past truth commissions, and certain aspects that were or were not successful when planning and structuring their own. For example, both model, using amnesty as an incentive to participate, but did implement certain community development and reintegration measures, and blanket amnesties. In Sierra Leone more so than Timor Leste, the government maintained a considerable amount of oversight, and had the final say in the decision making process. In Sierra Leone, the Special Court was essentially a domestic court with international support, whereas in Timor Leste the court system initially established to investigate crimes committed during con flict was almost entirely an
39 internationally run institution. Following the establishment of the SCU, the Office of the Prosecutor General was established to prosecute war criminals and mass human rights violations. As previously noted, these prosecutori al bodies did not experience widespread support, and thus their operations have been limited. The LOPG has been widely criticized for not cooperating with, or following through on recommendations made by the TLSCU as to who to indict. It has also been cr iticized for doing little in the case files with recommendations for indictments to prosecutors since late 2008, but as of February 2010, the prosecutor general had not iss Leste 2010, 20). These two approaches are relatively new to the pursuit of transitional justice in a post conflict state. Sierra Leone proves to be a bit more promising in its commitment to justice in all of its meani ngs judicial and non judicial. While Timor Leste provides a prime example of the complications that can be faced in mediating international and domestic interests. The conditions necessary for simultaneous implementation seem to be strong domestic supp ort for both institutions, commitment to the transitional justice process, consideration for past attempts, and careful intentional planning that mediates domestic interests, and international standards of best practice. Additionally, the dissemination of information about the institutions and their mandates and objectives is necessary for civil society to understand them, and form valid opinions on them. The possibility for these conditions to be present in other states emerging from conflict exists, and a similar implementation process could be utilized. If a state is considering such an
40 approach, the best model so far is Sierra Leone. As such, consultations with members of the government of Sierra Leone, and relevant international actors should be pur sued so as to learn from the complications faced in Sierra Leone and be aware of any special considerations. Conclusion Ultimately, the pursuit of transitional justice is a very complicated process that requires much careful thought and planning to bes t fit the situation and help the society move on; there is no set formula for pursuing transitional justice that universally works. Countries should not be afraid to do something different and new with their approach. The post conflict transitional proce ss for any country is not going to be easy. It will require work and the cooperation of all parties involved and support of the people if sustainable peace is to be achieved. In Sierra Leone, both the Truth and Reconciliation Commission and Special Cour t have made significant and independent contributions to reconciliation and justice for the people of Sierra Leone. The combination of the two separate institutions has proved to be a very effective model for Sierra Leone. With its fewer constraints, the SLTRC was able to move in quickly, begin hearing testimonies of victims and perpetrators, and gather data well before the Court begun its work. over, and it has released its report along with recommendations, th e Court remains, reassuring society that they are still actively pursuing justice. While many of the recommendations of the SLTRC have not been fully implemented, policy changes can be
41 seen in the country showing progress. Such as the creation of a Human Rights Commission, a UN mission in Sierra Leone, and civil society groups meant to oversee the implementation of the Truth Commission recommendations (ICTJ Sierra Leone). Judge Claude Jorda, President of the International Criminal Tribunal of Yugoslavia (ICTY) in an address to the UN General Assembly referred to a Truth and Reconciliation I think their assessment serves as an accurate description of the relationship between judicial and non judicial approaches that Sierra Leone took and of the importance of each. To not address the issue and hold perpe The relationship between ex combatants and the Truth and Reconciliation Commission and the Special Court of Sierra Leone was a fairly delicate one. As it is important to hold ex combatants accountable, it also must be kept in mind that many of them were victims as well. With the Special Court many were very reluctant to contribute any information for fear of prosecution or their life. Whereas the Truth Commission provided a means for them to confess what they had done and be held accountable without further exacerbating the division between them and society by allowing others to see that they were victims of the conflict as well Ex combatants, like the rest of society, want reconciliation and sustainable peace more than anything, so that life can go on and they can return to their former homes without fear for their lives. In a country that has been so entrenched in
42 civil conf lict for a decade, ex combatants make up a substantial group that must be given special attention to help transition into a life without fighting, and facilitate reconciliation. This will not be a short process. Help for them will be necessary far beyond what the SLTRC or Court can provide, but the efforts of both institutions have laid the foundation for a society to rebuild itself. While there is no set framework for transitional justice, Sierra Leone provides a promising case in the direction of simu ltaneously implementing both judicial and non judicial practices, so as to address a large number of concerns quickly and at both micro and macro levels. Re building the society is far beyond the capacity and charge of the Truth and Reconciliation Commiss helped to start this process, by increasing accountability and confidence in the government, generating an understanding that human rights abuses will not be tolerated, providing accurate information on the conflict as a whole through which they have suffered, and establishing that consolidation of civil society is necessary for sustainable peace. From here it is up to the government, NGOs, and civil society to further the process of reconciliation an d development. All we want now is Ex RUF rank and file from Freetown (PRIDE, ICTJ 2002, 14)
43 Chapter Three Transitio nal Justice and Security Sector Reform This paper provides an in depth look at the process of reforming the security sector in a post conflict state. In particular, I am interested in how reforming the security sector with a transitional justice appro ach can contribute to the institutionalization of democratic norms. It is a generally accepted notion that for any sustainable peace to be established after a civil conflict, the security sector will have to be reformed at least to some degree to shift pr iorities from a state of active conflict to relative peace, and to help legitimize the security forces and new government. However, there is no standard for how these reforms should be implemented and what the focus of the security sector reform (SSR) sho uld be, and many approaches have been tried. This investigation, first looks into the debate over the use of SSR as a means of peace building and state building, with emphasis on what impact security sector reform can have on the greater goals of transiti onal justice and democratization. The second section of the paper breaks down the process of structuring and implementing a security sector reform project. In doing so it examines four cases: Afghanistan, Burundi, the Democratic Republic of the Congo, an d Timor Leste. Each case presents a different approach to security sector reform and produced varied outcomes.
44 Implementing a security sector reform in a post conflict state requires careful planning and consideration for many potential hindrances, often related to the fragility of the emerging state. The emerging government is often still in the process of establishing its foundation, legitimacy, and control, so planning and implementing an SSR program is no simple task. Many state institutions are als o in their early days and are not fully operational, which can further complicate the SSR process, as resources are spread thin across the state. In some instances the state is still controlled by a past oppressive regime or corrupt leaders who have their own agenda and are not concerned with the welfare of the country at large. In post conflict states, political transition is often the result of conflict resolution and the process of mediating competition, facilitating bargaining, and finding compromise between warring groups (Welsh 1994, 380 381). Since the conditions of peace accords are entirely case dependent and vary greatly, each country can embark on commonalities, c ontext based factors will affect each case uniquely, especially differences in the nature of the conflict and differences in historical development. Many theorists have analyzed factors that seem to have a significant role in motivating or influencing tra nsition, but there is no particular series of factors that guarantees a successful regime change. efforts. A lack of organization and capacities of the central gover nment is often present in a post conflict environment. The central government typically does not have complete
45 control over the territory, and state institutions are often weak and corrupt, and they generally do not have a favorable track record of good g overnance practices to ensure the safety of the population. Power sharing among the major groups in the state, and between the political elites and civil society can help to lessen past hostilities and distrust among groups. Many theorists believe that p ower sharing is essential in all transitioning countries, and especially in countries emerging from conflict that exploited ethnic differences During peace negotiations mechanisms for power sharing among the conflicting parties are often discussed and i ncluded in any resulting agreements (Maphai 1996, 70). However, power sharing mechanisms are not necessarily meant to be long term arrangements; instead they often help to set the stage for long term consolidation of the country by creating a foundation f or peaceable negotiations among relevant competing groups in a country. Power sharing allows for representation of competing groups in the creation and foundation of a new unified state. Assuming all parties are cooperative enough to peacefully engage in negotiations and the groups are committed to the reform process, employing this consociational approach at the outset can foster hope for a democratic future (Maphai 1996). However, including all relevant groups, particularly those who were actively engag ed in the conflict can complicate the reform process. When leaders of armed groups believed responsible for human rights abuses continue to hold positions of power within the country in a post conflict environment through elections, political appointment, or peace accords, they often prioritize their own agenda separate from the interests of a group as a whole to ensure their own position of power and safety. This can
46 be seen in the cases of Afghanistan, Burundi, and the DRC where personal interest of pol itical elites interfered with the greater reform agenda. This power sharing approach is not limited to the political realm. It is also common for peace accords to outline power sharing measures in military matters, often with little or no consideration o f past crimes. In such cases, many of the former combatants are incorporated into the national army or police force and are provided minimal, if any, professional training, leaving them unprepared to fulfill the requirements of their positions. With a la ck of training, armed forces are more likely to revert to inhumane tactics previously common during the war. Further adding to this problem, during the transition period, security agents are rarely held accountable for their actions, and are not subject t o democratic oversight (Davis 2009). Ongoing violence between state security agents and non state actors, and the threat of a return to fighting, are serious challenges to SSR in all four countries being looked at in this study, and in almost any post con flict environment. This culture of impunity has gone relatively unchecked to varying degrees in each case, which can fuel widespread distrust and seriously undermine efforts to increase accountability and legitimacy of the government and security sector. Transitional Justice and SSR When a post conflict state commits to transitional justice goals of democratization and sustainable peace and accepts the aid of international donors, the state is expected to implement certain reforms to address past abuses and establish a government and society
47 committed to preventing a return to conflict. One common element in a transitional justice reform agenda is reform of the security sector. There has been much study of SSR attempts in post conflict states, and rece ntly there has been a push to incorporate such reform agendas as a piece of the larger transitional justice efforts. The premise is that SSR efforts contribute to and may benefit from a holistic transitional justice approach. In this context, s ecurity se ctor reform should aim for the establishment of effective governance, oversight, and accountability in the security system; improved efficiency of security and justice needs; development of local leadership and ownership of reform processes; and sustainabi lity of justice and security service delivery (ICTJ outline of SSR; Davis 2009; Samuels 2006). Generally, the main objective of security sector reform is to contribute to the democratization process through strengthening good governance, and the rule of l aw and structuring the government and security forces to best ensure the protection of human rights. Transitional justice processes aim to deal with the legacy of systematic and massive human rights abuse. In particular they are designed to recognize and acknowledge victims, assign responsibility for crimes, and contribute to peacebuilding and democratization. Transitional justice is not in itself a special form of justice, but a set of approaches that seek to bring about justice in often chaotic post co nflict conditions during an attempt to transition to democracy, peace and stability. A key element of transitional justice is placing the victim at the center: ensuring that the victims of oppression are recognized as such, are empowered as fully rights b earing citizens, and have their dignity restored to them (Barnes 2001, 99).
48 Different transitional justice approaches share the same goal, are interrelated, and should be designed to mutually reinforce one another. For example, recognizing that it would be impossible to prosecute all those guilty of human rights violations during conflict, prosecutions will tend to focus only on those most responsible, such as the organizers of crime. Unlike courts of law, truth seeking measures do not have the authority to impose sanctions on perpetrators. But truth is in essence a part of justice. By investigating and publicizing events that took place, truth seeking contributes to generating a common historical narrative, key for establishing trust among groups and b etween citizens and the state, but truth seeking must not replace or prevent future prosecutions to sanction individuals. Thus, the different processes should reinforce and not replace each other; a holistic approach is likely to be most successful in meeting the justice needs of the population. For example, a truth seeking investigation can provide information that is invaluable when beginning the task of vetting security forces and government agents. A justice sensitive approach to SSR places emph asis on four feature of reform: civic empowerment, integrity, legitimacy (accountability), and coherence (Patel, et. al. 2009, 278; Davis 2009, 24). The relationship between security sector reform and transitional justice aims are best understood by focus ing on the future oriented objectives of justice. While transitional justice takes a focus on addressing past abuses, it intends to do so by increasing accountability in emerging institutions to prevent such violations from reoccurring. The information t hat comes forward with transitional justice processes outside of the strictly SSR framework (truth commissions, criminal trials, etc), are vital in
49 answering some necessary questions for conducting successful SSR, most notably with regards to highlighting abusive regimes, that most necessitate reform. Donor groups, and national governments tend to favor effectiveness of the security sector, over accountability when setting the reform agenda. However for reforms to be meaningful, and contribute to transiti onal justice, increasing accountability and trust in security forces must be at the center of the programs. This is where the transitional justice practice of looking back and addressing past injustices proves useful. (Patel, et. al. 2009, 277). The past must be understood, and recognized in order to prevent future violations (Hanggi 2004). A key component to taking an approach to SSR that is justice sensitive is that it must not be a stand alone project, but rather should be an integral part of the broader transitional justice efforts trying to establish effective and accountable public institutions. Justice sensitive SSR is an important component of transitional just ice, particularly where security agents have committed and continue to commit human rights violations. It seeks to reform abusive public institutions in the security system by addressing the past record of the institution and holding individual perpetrato rs to account, rather than ignoring past abuse. It aims to make the institutions accountable to the population and with regards to marginalized and vulnerable po pulations) and the security of communities. Reforming abusive institutions so that they are accountable to and trusted by the population transforms not only the institutions, but also the people, who become
50 rights bearing citizens rather than victims of s tate oppression. In order to implement these goals and facilitate reform, a the aforementioned four pillars of justice sensitive SSR should be at the center of the reform program: Building the integrity of the security system by establishing multiple, ov erlapping mechanisms and processes for accountability, ensuring its compliance with the rule of law, establishing standards and codes of conduct. Holding the institutions as well as individuals accountable for past abuse helps to improve their integrity, legitimacy, and effectiveness as public institutions. Strengthening legitimacy, or civic trust in the security system. Efforts to do this may include verbal or symbolic measures (such as memorials, apologies, and changing insignia) that show a commitment to overcoming the legacy of abuse, and serve as an endorsement of democratic norms and values. Legitimacy is also strengthened by showing that they are responsive to the security needs of the public and earn the trust of the population by treating all citi zens fairly and addressing their security concerns effectively. Coherence in this context refers to cooperation between various transitional justice mechanisms and SSR programming. Both in terms of building the capacities and integrity of the security sec tor, but also how SSR relates to the other transitional justice processes such as truth seeking, and criminal courts. Empowering citizens through means such as public information campaigns, and justice needs, an d training civil society organizations (CSOs) to monitor the security system and allow
51 citizens' participation in the security system. A key aspect of the justice sensitive approach is to transform v ictims of state repression or conflict related violence and other marginalized or vulnerable groups into full rights bearing citizens (ICTJ, Accessed 02/08/2011; Also discussed in Patel, et. al. 2004, and Davis 2009). Vetting Vetting is a key element in a justice sensitive approach to SSR which, when combined with other SSR programs, is designed to improve the accountability, functioning and oversight of public institutions, and it can contribute to building both the aimed at screening public employees or candidates for public employment to determine if ights abusers across the board (not just from one group engaged in conflict, but all of them) increases the integrity of institutions by establishing that no one is above the law and showing that past abuses will not be overlooked. A major function of the vetting process is that it develops a procedures for disciplinary action in institutions and provides external oversight mechanisms to help change the nature of previously abusive institutions and therefore prevent recurrence of abuse. Given that in many conflict situations, the state security forces, as well as nonstate security factions are responsible for carrying out mass human rights violations, a justice sensitive approach to SSR which
52 incorporates vetting measures must focus on establishing account ability as a part of reform. Vetting is a measure that, if conducted properly, should contribute to building the integrity of a security institution, increasing public trust in and empowering citizens. It should also increase the effectiveness of the ins titution. For example, if women do not report incidents of rape because they fear being raped again by officers at the police station, rapes will go unreported and there can be no investigation, regardless of the technical capacities of the police to inve stigate the crime. The reputation of the police as human rights abusers therefore directly undermines their capacity to do their job. Thus, removing known abusers from the police, and establishing and adhering to clear disciplinary mechanisms for all off icers, demonstrates that human rights abuses will not be tolerated in the institution and any perpetrators will be held accountable. Such measures, in turn, should contribute to increasing public trust in the police, which is necessary for its proper func tioning. Vetting is also targeted at addressing and removing corruption from within security forces and government. A lack of clear command and control of the security forces can permit and mask a network of illegal organized crime. This can be seen i n Afghanistan and the DRC with black markets for natural resource extraction and drugs often controlled by the security sector or other armed groups. As long as these informal, powerful and highly lucrative structures continue to exist, they will present a major obstacle to unity of command and control, and to democratic oversight. Vetting can therefore contribute to the culture of accountability necessary for
53 democratization and reform of the government and security sector to a stable functioning state. The process of designing a vetting program is quite extensive and must take into consideration a range of factors, including how to make decisions on the institutions and positions to be vetted (which must take into account questions of feasibility and lo gistical matters); the criteria for screening for misconduct; the sanctions for those who are vetted (i.e. those who fail to meet the necessary standards); the structure and procedures; the scope of the process; its timing and duration; its justification; and its coherence with other institutional reform and transitional justice measures (Greiff 2007, 528). Case Overviews The following is a summary and introduction to each of the states being considered in this study. The cases were chosen for their sim ilarities and dissimilarities in the application of SSR measures, and the resulting effects reforms (or lack thereof), had on the state. In each state reforms have been implemented to varying degrees and have experienced mixed feedback from civil society and related institutions. Afghanistan In Afghanistan, political choices made early in the state building process have led to many of the current governance and rule of law issues in the country (Ayub et al. 2009, 6). International involvement in the Midd le East drastically increased following the terrorist attacks on September 11, 2001, and the US invasion of Iraq. SSR efforts in
54 Afghanistan were conceptualized with a rather comprehensive approach. Reform programs were to address five pillars of the sta te: military, police, justice, counter narcotics, and disarmament, demobilization and reintegration (DDR) (Sherman 2009; le of] democratic governance, justice sensitive approach to reform, there was no national body to oversee or arbitrate all of the actors contributing to reform. As a re sult many of the donor groups operating in Afghanistan prioritized these five pillars and goals differently and, in some cases, focused only on one or two pillars with no consideration for the others. This could be seen with US engagement in Afghanistan US initiatives in capacities to combat terrorism. Instead of trying to build a strong national army to assist in these efforts, the US led coalition relied heavily on fa ctional militias, often with questionable practices, and with leaders who were even more questionable, to combat the Taliban (Kuovo and Wareham 2009). This choice undermined other reform efforts to increase the capacities of the national army, police, and justice system. It also provided weapons and training to the leaders of such militias, thus raising their socio political standing, and essentially promoting them to positions of great influence in the state. So not only did this approach undermine othe r areas of the security sector, it also entirely undermined the emerging political structures. The President was left no choice but to include the leaders of these militias in the political process and provide them political
55 seats of power. Given many of any efforts to implement programs that would investigate their past and jeopardize their current position of power (such as with vetting). Another criticism of this particular form of US involve ment, was that the national government, and other relevant institutions were not consulted in the planning process. Wilder points out that a primary concern in Afghanistan with SSR was the implementation of a DDR program, and instead of disarming factiona l militias, the US came in and was selectively arming them. The US enabled many of these factional stitutions that are legitimate, operational, and able to ensure the safety of the Afghan people today. International involvement has also been marked by a lack of coordination between political and development assistance as well as "the differing priorit ies of international actors the UN, WB, and various donor countries operating in the result of minimal communication among actors, and the lack of an oversight bod y was the National Police Force (ANPF). Both The US and the EU were leading projects to reform the ANPF, however there was little communication between the two groups, and no standards were set for the training. As a result, the National Police Force was very disjointed, and the officers lacked a common training background, and standard of practice. The government of Afghanistan has taken measures to address this with the creation of the International Police Coordination Board. With this, Afghanistan ha s taken
56 on the responsibility of overseeing all relevant training activities, and setting the agenda for police reforms. There is still a large amount of international support provided in reforming the police force, however, now there is a uniform trainin g program for all police to go through, and an oversight body to ensure that certain standards are upheld throughout the process (Wilder 2007; Kuovo and Wareham 2009). Many scholars believe that Afghanistan could greatly benefit from regional cooperation and support for implementing security sector reforms. While most international actors are interested in establishing peace in the state immediately, neighboring countries are often interested in fostering long term sustainable peace in the state. Among o neighbors have similar interests in maintaining long term stability, not just in Afghanistan, but throughout the region. Additionally, many other countries in the region share a similar p olitical and cultural ideologies, and as such can provide a more specialized, and context sensitive form of assistance. Cooperation with regional security institutions also has the potential to facilitate partnerships and agreements in other sectors of th e state political, economic, etc (Sherman 2009; Ayub, et. al. 2009). step in the right direction. However for meaningful reform to be possible, the widespread corruption in the government and military, both the national army, and unofficial or private militias must be addressed without compromise. So long as corrupt, abusive leaders remain in positions of power in Afghanistan, it will be impossible for a state led reform of the security sector to occur. As personal interests of the political elites and said
57 leaders will interfere with any meaningful reforms. Burundi devoted to its defense and se curity institutions (CIGI: Burundi 2010, 2). One particular section is devoted to outlining the authority of each security institution: the National maintaining the count managing and utilizing Burundi 2010, 2). Burundi has created many institutions and organizations to monitor and ensure that security forces are functioning properly, but in essence, this approach has spread the power and burden of responsibility even further from the actual security forces, and reduced the already limited resources available to the security forces. While in theory the creation of oversight bodies is a step in the right direction, in this case it seem s to be a step backwards. In many cases the agencies that are being established, are being established in place of a previous institution meant to do the same thing that failed as a result of lack of resources and funding, leaving the new institutions lit tle hope of success. 3 3 internal oversight. Their performance to date as pa undermined by a lack of resources that it can be said to have never properly functioned at all. That body
58 The Burundi SSR efforts have also been criticized for the amount of government control over all efforts, and the amount of lip service paid to making it seem as though there is transparency and diversity in its institutions, when rea lly the power falls within the hands of a few political elites. For example, the president created a National Security policy, defense and security strategy, and law an to report annually to the president and gove rnment bodies. The National Security Council has the potential to be a beneficial institution for the progress of SSR efforts; however, the president assigned himself chair of the council and appointed many state officials in the security sector to the co uncil as well. The council is meant to serve as an advisory body to the president and government, yet it is largely composed of the state head of state, even thou gh as chair of the council the president is the last person to Burundi 2010, 3). In many ways, the president and his ruling party (his supporters) run every face t of the security sector with their own best interest in mind, with little care being taken for the public at large. Officers who are known to support the opposition are was re placed in February 2009 by the current Inspectorate General of Public Security (IGPS). The mission of this new body includes independent oversight, control and investigation of all the activities conducted under the auspices of the Ministry of Public Secu rity as well as the documentation of complaints against the police and denunciations of individual officers from both citizens and police officers themselves. The IGPS remains somewhat ineffective in fulfilling its mandate, however, due to a paucity of hum an and financial resources as well as the fact that the legal texts governing its mandate,
59 often relieved of duty and sometimes imprisoned. Recently there has been an increase in NGOs (both domestic and international), through periodic research based on opinion surveys designed to analyze civilian undi, 7). Many of these organizations are also known to keep record of abuses and violent acts committed by security forces, and investigating corruption and embezzlement within the security sector. Pressure from such organizations and the media has led lip service to the people. However, some branches, most notably the national police force, are caving to the se pressures and beginning to make a concerted effort to cooperate with civil society groups and engage in critical discussions of their work (CIGI: Burundi, 7). Whether the president will allow any of the suggested reforms has yet to be seen. Another cri ticism of SSR attempts in Burundi concerns the lack of an independent judicial branch, which is called for in its constitution. The judicial system is said to be riddled with corruption; membership in the ruling party is a condition for recruitment and a ppointment and the payment of bribes serves as a barrier to entry (OAG 2009). The judicial system is structured so that the executive has supreme power over all of judges, 4 leaving judges indebted to the executive branch and discouraging any independent r ulings that may differ from the opinions of the president out of fear of retribution. Unions of lawyers and magistrates have tried to take root but often are restricted from 4 (CIGI: Burundi 2010, 8). (Also discussed in OAG 2009.)
60 doing so due to repression and intimidation from the ministry (OAG 2009; CIGI: Bu rundi 2010). Attempts at SSR in Burundi have been very divided and in essence compartmentalized. The president has shown a lack of commitment to transitional justice goals, and instead has simply paid lip service to them by using traditional SSR programs DDR, reparations, and vetting to his own advantage rather than to reform a corrupt system. Essentially he has used them as mechanisms to further oppress opposing parties. While there has been a fair amount of international involvement in SSR efforts in Burundi, it has generally been controlled by the government, and most initiatives are short sighted and again compartmentalized to limit communication between the groups. In some sense the president attempted to put blinders on the international donors o perating in the country so that they could not see the larger picture by limiting the support they could provide to a particular sector. However, with the increase in civil society groups and independent media reporting on the operations of the security s ector, the international community has begun to put more pressure on the president for a widespread holistic approach to reform. In response, the government created the National Security Council and the National Council to Coordinate External Assistance ( BCNCA) (Mora 2007, 7). The latter is mandated to coordinate and oversee all foreign SSR efforts i n Burundi have been bogged down by widespread corruption in the government and related institutions, and a lack of political will to implement reforms and
61 lateral peacekeeping ope rations and to avoid creating the perception that selection decisions are The Democratic Republic of the Congo (DRC) The Democratic Republic of the Congo serves as a modern example of failed SSR re form. The DRC has experienced off and on widespread conflict since 1998. There has been a high level of international involvement to help the DRC through the peace process and political transition, but in the DRC all efforts have failed to establish a le gitimate security system. The DRC lacks a strong institutional framework and government to initiate any SSR projects. The state is in a constant state of flux. Peace negotiations in al government to However, fighting in the east continued and the government does not have control over the full territory of the country. A major challenge to any reform eff orts is that the DRC lacks any strong institutional framework upon which to build the projects. The DRC has also not been able to establish a democratic system, as power remains very concentrated in the presidency. This complicates the process of politic al negotiation and long term planning across different sectors of the government. Additionally, security forces and the justice system in the DRC are often criticized for being deeply corrupt, and they have a history of being unable to protect the people from rebel forces, so much so that many citizens
62 have come to fear the security forces (Boshoff, et al. 2010, 3). In 2008, conflict broke out between the Armed Forces of the Democratic Republic of Congo (FARDC) and rebel forces. As the FARDC was attacked they retreated out of fear and "systematically looted, pillaged, raped and otherwise abused citizens in the process" (Davis 2009). Essentially, they were attacking the very citizens they were supposed to be protecting from such atrocities. Many SSR proje cts led by international donors have been very limited in terms of operational time and geographical scope. Several of the projects have been focused on specific or technical projects in singular communities to help them mobilize and protect themselves, w hile large scale reform of the security sector is largely unaddressed (Kuovo and Davis 2009, 464). No accountability measures have been put into place to hold the FARDC soldiers responsible for the atrocities they committed and continue to commit. Kuovo no oversight of the security services by Parliament. There have [also] been numerous date no flare up and little progress has been made in the SSR efforts, or towards establishing a democratic system of government. Many scholars believe that for there to ever be successful SSR in the DRC, the entire government and security forces (military and police) will have to go through the vetting process, and be held accountable for any past abuses committed. Without taking these measures, peace in the DRC is un likely as the rebel parties and government will continue to butt heads over past grievances (Davis
63 2009; Boshoff, et al. 2010; Kuovo and Davis 2009). Timor Leste In 2000, the UN and other international agencies intervened and provided support to Timor Le ste in its fight for independence from Indonesia. The UN helped establish a national police force, the Policia Nacional de Timor Leste (PNTL), which served as a major channel for international agencies to provide support and assistance for peacekeeping mi ssions. Meanwhile, the Forces de Armadas de Timor Leste (FDTL), a civil defense force that was also fighting for independence, received significantly less international support. This imbalance led to tensions between the two groups, despite their common goals. In 2002, Timor Leste was granted independence from Indonesia, but tensions between the two groups continued to brew. In 2006, there was a breakdown internal di spute within the army over alleged discrimination and unfair treatment, but quickly took on a larger character and intertwined with a range of other grievances and sup port had been flowing into Timor Leste, so the international community was quick to respond and was able to restore a degree of order to the country "with the help of an international military contingent" (Bassin, et al., 2009). While it was international forces that helped to restore peace to Timor Leste, many scholars attribute this breakdown to the abundance of international involvement without coordination among the actors, and the lack of any overseeing body to head the SSR reform agenda (Bassin, et a l., 2009; CIGI
64 Timor Leste 2011). Following this breakdown, real progress was made with reforms, as the national police and army began cooperating on missions. Presidential and parliamentary elections were held in 2007, in a relatively peaceful environmen t. Following the elections the Timorese government began to play a much larger role in SSR implementation and oversight. Despite assassination attempts on the President and Prime Minister in 2008 by rebels (most of them ex police and army forces), the co mparative peace was a welcomed change and is often seen as a sign of success for SSR reform. Following the assassination attempts, there was a lengthy court trial, which the president was largely criticized for interfering with by announcing that he plann ed to pardon all those involved in the assassination attempts before a verdict was reached. The president is also largely criticized for a long list of other pardons and general political interference with the justice system. While there is much work to b e done in strengthening the justice system and respect for rule of law, many SSR strides have been made in Timor Leste. The national army and police force have shown promise in their abilities to protect public interest, and have been able to make forward progress in operating as mutually supportive institutions. As for the justice system, in 2009 the Timor Leste penal code was endorsed, and while replaced by governme nt drafted civil codes based on Portuguese law (CIA World Factbook: Timor Leste, accessed 03/24/2011). While the president did undermine the judicial system by offering politically motivated pardons, civil society, senior officials of
65 the judicial system, and even many members of the security sector did not idly sit by pardons and his interferences with the justice system. Some scholars interpret this as a showing of res pect for, and faith in, the judicial system on behalf of the people. Accountability is a key component of SSR, and many believe it necessary for the legitimacy of the security forces to be ensured. Meanwhile, Timor Leste is taking a atmosphere of uncertain accountability. The Center for International Governance represent worst practic e for security sector development; however, President Ramos these academic jargon Leste 2011, 19 20). The future of SSR in Timor Leste is uncertain and will largely depend on decisions made leading up to and following the 2012 presidential elections. However, the progress that has been made and civil society support for continued reform, including accountability mechanisms to fight impunity, seem promising. The future of SSR particularly with regards to the judicial system (and political intervention in it) is likely to be a hot topic of debate in the upcoming 2012 elec tions.
66 Main Findings from the Case Studies The case studies chosen examine four different countries in which reform of the security system is at different stages. Each case study shows different elements and prioritizations within its SSR program. T his section attempts to draw out common findings and recommendations for security sector reform planners, which may contribute to more effective SSR programming in countries emerging from conflict. Reforming the security system is an important and essenti al part of state building. The practice of state building includes implementing anti corruption measures, institution building, and employing local governance measures. Meaningful SSR is not possible where a culture of impunity prevails. SSR efforts shou ld operate in conjunction with other transitional justice projects in order to ensure sustainable improvements and stability in the state. This comprehensive approach can also help to encourage national governments and reform efforts to abide by internat ional standards of best practice, especially with regards to human rights, and the rule of law. Kritz points out that "It is essential at the outset [of reforms] to distinguish between the rule of law and simply rule by law" (2007, 401). 'Rule by law' im plies that all aspects of law remain under the influence of tyranny and abusive regimes "simply [providing] yet one more vehicle by which government can wield and abuse its...power" (Kritz 2007, 401). Whereas, rule of law "establishes principles that cons train the power of the government, and oblige it to conduct itself according to a series of prescribed and publicly known rules" (Kritz 2007, 401 402) and when upheld, even establishes
67 mechanisms to hold the government accountable for any violations. Many scholars are of similar opinion. Barnes adds that "Without institutions to enforce the rule of law, political actors will ignore the public interest in favor of their private goals" (Barnes 2001, 92). She notes further that, post conflict reconstruction must attend to the culture in which it will operate especially with regards to the interests and incentives for political actors and civil society to cooperate (Barnes 2001, 99 100). In order to address the needs of the state effectively, it is advisable for a state to pursue a comprehensive approach to security sector reform where each institution within the security system is seen as a part of a web that must be reformed as a whole unit. This approach is preferable and generally more effective in the l ong term than reforming each institution without consideration for the others, or broader transitional justice goals (Davis 2009; Ayub, et al 2009; Barnes 2001). In all four cases, most notably in Burundi and the DRC, the states at some point or other hav e failed to take this comprehensive approach to security sector reforms. As a result, reforms have not been successfully implemented. For prosecutions to be successful, the institutions of the formal justice system (courts, lawyers, judges, trial system) must be established and legitimized. At the most basic level, there must be state agents, such as legislators, capable of developing effective laws and policies for there to be laws to enforce. Ayub, et al., highlight that renewed emphasis needs to be gi ven to ensure merit based appointments, adequate and appropriate pay grades, vetting of corrupt political elites, and monitoring the reform process for reforms to be successfully and wholly implemented (Ayub, et al. 2009, 11). Some special
68 considerations must also be taken into account while doing this. Kuovo and Davis' analysis of the SSR efforts in Afghanistan and the DRC notes that additional projects on witness protection; legal assistance; projects to allow women to participate in trials by ensuring the well being of their families in their absence; court monitors to ensure international standards are met; and persistent follow up to ensure execution of judgments, particularly of reparation payments to victims, are all necessary for ensuring the succe ss of the justice system (2009, 6). And for domestic prosecutions to even occur, and with the resources to investigate crime, hold suspects and enforce law. M any other scholars also point out the importance of training security forces how to respond to and address specific types of crime, such as hate crimes and gender based violence. Measures such as this are necessary for equipping the security forces with t he skills and mindset necessary to meet its obligations to protect the population and their rights, and, in turn, to ensure citizen's trust in the security forces. People must feel safe and confident in their ability to report crime to security forces wit hout risking their own personal well being as a result of reporting, perhaps because of their gender, tribal alliances, ethnicity, or who the offender is (Ayub, et al. 2009, 11; Myrtinnen 2009, 35; Davis 2009, 12 13). Civilian oversight is essential for s ustainable reform (Davis 2009; Barnes 2001; Kritz 2007). "Abusive institutions are not reformed in a vacuum; their place within society and relationship with the population are transformed" (Davis 2009, 15). A key element of justice sensitive SSR is to empower the population and build civic trust in
69 institutions. In Burundi, Timor Leste, and the DRC, the authors thought that priority should be given to engaging the population as a whole in the reform processes in order for these to be sustainable and fo r the people of the country to truly be supportive of the reforms and emerging institutions (Mora 2008; ICTJ 2009; Davis 2009 DRC). Support can also be fostered through increasing transparency with oversight by civil society institutions and by ensuring a ccess to information, through having court records open to the public, creating legal requirements to report conflicts of interest, and raising public awareness of the judicial process (Barnes 2001). Local communities should be consulted early to determi ne their specific security concerns and needs are, so that reform efforts can be prioritized appropriately. Such consultations allow for a broad definition of security, which for some communities may include economic and social security issues. Commonuti y specific consultation would have been particularly beneficial in Afghanistan and the DRC with regards to illegal mining and drug trafficking which are more prevalent in some communities than others (Ayub, et al 2009). Implementation of SSR Programs Al l of the case studies demonstrate that SSR is highly context specific. There is no one right way, and while donors and international actors should learn from previous experience, they cannot cut and paste solutions, guidelines or strategies that worked in one country to another. While SSR programs must be clearly designed and budgeted,
70 program designs must include some wiggle room to allow the people working in the field and facilitating these changes the flexibility they need to adjust to changing circums tances. In an ideal state, the national government would be best suited and capable of coordinating and setting the reform agenda, but as previously discussed, governments emerging from conflict often lack the capacities necessary to single handedly under take such a major task. Thus international support is often welcomed and needed to implement reforms. International actors can offer expertise in the field of SSR and provide resources otherwise unavailable to the country. However, safeguards need to be in place to regulate international involvement and input and provide comprehensive oversight. Inevitably it should be up to the local government to decide which police, military, and judicial systems they would like to build, and what reforms should be i mplemented. They may need international help to understand various systems and approaches, but in the end the choice should come down to the government and related institutions so that there is a sense of ownership and commitment to the reforms. Hence, domestic and international factors must be mediated in order for a reform agenda to be agreed upon. A lack common military, police, or judicial doctrines with certain organizations or donor countries can lead to problems with donor support. This can be s een in the cases of the Afghanistan and the DRC where policy conditions were applied to receiving aid from countries and institutions, such as the US or UN, that countered local beliefs and systems. Both parties had to compromise and make certain concessi ons in order to proceed in the reform process (Davis 2009). Mediating these domestic and international actors can prove to be quite a
71 challenge, and communication between relevant groups is often minimal at best. Communication between donor groups and r eform agencies should be required to ensure that all are mutually supportive and to increase efficiency. When possible, the government should take on the responsibility of overseeing the reform process as a whole to ensure a holistic approach to reforms a nd to increase communication among various actors. However, as can be seen with Burundi, government oversight is not always a good thing. The president essentially gave himself ultimate control over the reform agenda and related agencies by placing loyal supporters in charge of each. When communication fails among donor groups, the government, and civil society groups the reform process can be severely hindered. Instances of this can be seen in each country evaluated, for example, in Afghanistan with co ntinuing disparities between US and European efforts at reforming the national police. Each agency has taken a different approach to reforming and training the police, which has complicated the process for each and led to a disjointed police force. The e stablishment of the International Police Coordination Board is a step in the right direction of domestic ownership, and oversight of the program. The board continues to seek advice from international donors and to value their input; however, it is impleme nting a uniform standard of training for all police to overcome this divide and ensure a certain standard for the entire force (Wilder 2007; Kuovo and Wareham 2009). While the SSR process must be locally owned, international input should not be ignored. In addition to the expertise and resources external actors can provide, they have the ability to maintain a third party status and observe the government and push for
72 reform at all levels to combat corruption. Especially in instances where the country has l imited resources and is committed to an agreeable SSR reform agenda, international change in a country. When it comes to issues such as corruption and abusive pra ctices, this potential particularly rings true; international donors should require the government to comply with international law and generally accepted standards of good governance for aid to continue. A major weak point in all four countries evaluated was accountability mechanisms. International organizations providing assistance should have been hard pressed to increase accountability in the state. Of the four countries being considered, three ranked in the bottom 10% in the corruption index of Tran 2009 Annual Report (DRC 162; Burundi 168; Afghanistan 179), and Timor Leste did not fare much better coming in at 146 out of 180 (TI 2009, 49). The need for accountability should not be compromised for the sake of expediency or sh ort term political stability. Timor Leste serves as a precautionary example: had international donors been more insistent on increasing accountability in the state and security system in Timor early years of independence, then impunity may never h ave become so deep rooted in the state and conflict may not have re emerged in 2006 (ICTJ 2009). Mediating the domestic and international actors is a delicate balancing act. Both sides must be invested in the project, and create a system of checks and ba lances so that each can monitor and question the progress and objectives of the other. One way of minimizing some difference of opinion between donors and the domestic government is for regional partnerships to be pursued as an alternative to
73 relying on di stant donors for assistance with security sector reforms. It is generally accepted that countries are often affected by the reforms attempted in neighboring countries and the threat of a return to violence, thus it is safe to assume that it is in their be st interest for the reforms to go smoothly, and for their neighbors to have a legitimate, functioning security force. Some continents and areas have official regional oversight groups such as the European Union (EU), or the African Union (AU) which stand to ensure regional security which includes stability of member states. Burundi and the DRC are both members of the African Union and have received varying degrees of support from the AU. Most notably, the AU has played an active role in negotiating the p eace the AU has created a special task force ican battalion to assume the DDR later DDR efforts on behalf of the AU had been stalled (Powell 2007, 12). Despi te this failure, or perhaps due to it Powell further asserted that: Regional and international actors need to be willing to constructively challenge problematic practices on the part of the military, the police and other government institutions in Burundi. The African Union, for example, could theoretically now be better positioned to take on this role as it resumes an important position in assisting with the implementation of the ceasefire agreement with the FNL. As an African institution with a history of involvement in Burundi, the AU could constructively engage the Burundian government (Powell 2007, 12). Many scholars agree with this sentiment and believe that partnerships with
74 regional organization such as this provide an opportunity to open up dial ogue for constructive criticism, and create long term security relationships with neighboring countries that could lend support. Some scholars point to Afghanistan as a country in an ideal position to gain from entering a partnership with such a regional group. Increased linkages between the Afghan and other South Asian security institutions could prove beneficial as their context is more relevant to Afghanistan both culturally and politically, than most of the European or North American institutions that are operating in the state and leading reform efforts at the moment (Kuovo and Wareham 2009). This could also prove to be advantageous to reform efforts by allowing for more compromise in setting the reform agenda, and creating long lasting regional ties Another problem that can arise with international support is to implement lots of short sighted projects with a limited time frame. Generally speaking, international donors are primarily interested in establishing a security sector, but not necessaril y sustaining it. Wilder points out that in many cases they even undermine rule of law considerations by failing to create a system of checks and balances in the state and create internal accountability mechanisms (Wilder 2007, 62). Many authors propose t hat regional partnerships could also help to minimize the negative impacts that may be associated with short term projects. While international donors are interested in stabilizing and implementing reforms in the short term, regional security institutions are interested in sustainable, long term peace. After foreign troops leave the country, each country will still be held accountable by its neighbors and will be dealing with them on a day to day basis and share similar regional security concerns. Hence, it makes sense to
75 seek regional ties and input when setting a reform agenda. Another important element of reform that can easily be overlooked is the training of new security forces. Training helps to ensure a standard of performance, and to ensure that all forces know what is expected of them, and how to perform their jobs. Mediating international and domestic influence in the training of new security forces can be difficult. And it is essential to make sure that all relevant actors are on the same pa ge and committed to upholding standards of best practice. Members of the security services, both domestic and international, should be briefed on the central goals of transitional justice, specifically with regards to upholding human rights and women's ri ghts and establishing a culture of tolerance. Training or at least education should be provided to all relevant actors on the complexities of reintegration processes and special concerns for former combatants, displaced persons, marginalized groups, and w omen and children most affected by conflict. Security forces, both military and police, should be trained according to international standards of best practice. Of course, some concessions must be made at the outset due to lack of capacities and the natu re of being in a state of transition. But training should not be undertaken with the notion that it is a one time initiative, it should be revisited as new issues arise, as capacities increase, and as changes occur in the state so as to strengthen the rep utation and abilities of the security sector. In many cases international actors have aided in the training security forces, and in many respects this has been beneficial. However, the presence and focus on training at the hands of international actors i s often short sighted and looks only to equip the
76 security forces with the basic skill set necessary to perform their job. One approach that was tried in Afghanistan looked to mediate the goals of international and domestic actors. Police and military fo rces trained under previous the regime were used in conjunction with international actors to serve as mentors to, and to train the new security forces. One of the main benefits which resulted from this approach was the showing of faith in the people of Af ghanistan on behalf of the international community. It also proved to be beneficial to have the experience of the former domestic security forces, as they provided lots of insight to the inner workings of the country such as the culture, territory, and issues most commonly faced throughout the country (Wilder 2007). Training of security forces should also emphasize the importance of protecting matter their gender, r ace, or political affiliations. Often in a state of widespread, violent conflict, issues such as gender sensitivity and fair representation throughout all sectors of government are entirely overlooked. Hence, special consideration for marginalized and op pressed groups must be taken to ensure that their rights are protected by the security sector in the new state. In reforming the security sector, care should also be taken to ensure that all groups (ethnic; socio economic; political) be included, or at le ast be provided the opportunity to participate in the security forces. This is particularly important in situations where conflict occurred along such lines, so that the new government can show that they have moved on from abuses of the past regime, and p ast conflict, and want to foster a unified state. This simple step can go a long way in terms of reducing hostilities between parties and civil society groups, which in turn can reduce
77 the likelihood of regressing to a state of conflict. Gender sensitivi ty in the context of transitional justice and security sector reform is especially important because in times of conflict and reconstruction women are often one of the most oppressed and abused populations within a state (Burt 2011; Valasek 2008). During times of intense civil conflict, women are often kidnapped, raped, and murdered. They also suffer by having their surroundings and family destroyed and torn apart from them. Many adult males and children are kidnapped and forced to fight, or killed in fe ar that they will join opposition forces, leaving the women alone, without shelter and with little protection from invading forces. Provisions for assisting women and children affected by violence are often lacking as are provisions to protect them after the conflict has ended. Security forces often fail to provide basic security from gender based violence, and even worse, in each country instances of gender based violence committed by the security forces have been reported, and with minimal oversight and accountability they all too often go unpunished. Another issue often experienced in post conflict environments is women not being provided equal opportunity to join the ranks in the security sector. Stigmas against n present and many states fail to provide equal opportunities of employment for women. A similar issue can arise along ethnic or cultural lines as well, especially when conflict occurred along these lines. As was the case in Timor Leste where citizens were sometimes not allowed to join security forces based on their patronage 5 or association 5 Patronage in this context is not meant to simply refer to familial ties, but also clans, gangs, former militia groups, political groups, religious groups, and social organizations.
78 with a particular party. Efforts to amend such gender or socio political marginalization include provisions for maintaining a certain ratio (at either a national o r local level) of active security forces from each relevant group in the country, such as a ratio of male to female officers. In some cases it has been observed that victims of crime who feel they have been targeted based on their ethnicity, gender or pol itical association are less likely to report the crime if there is no officer that shares a similar personal identification to receive and input the report (Valasek 6 10). This was commonly reported in Burundi with regards to women who were victims of sex ual harassment or abuse. In a survey women reported that they were significantly less likely to report the crime if there were was no women in the police force they could report it to. This was associated with a fear of stigmatization, and fear of being subjected to further abuse by male forces. The women also cited that having women serve in the police force gave them a sense empowerment that their voice would be heard and respected (Myrttinen 2009, 35 37). Conclusion Based on these observations, it is clear that for peace to be found and state building to proceed and be sustained, the security sector must undergo reform at all levels. In post conflict states, SSR is necessary to prevent the re occurrence of violence and ensure citizens rights and sa (Valasek 2008, 18). The state and all related institutions must be held accountable for both their past and current actions. For this to be
79 accomplished rule of law must be established and enforced. Without rule of law and a properly trained national security force it is impossible for an emerging government to ensure the stability of the country and protect its citizens rights. Reforming the security sector can hel p to consolidate often divided post conflict states, and is a necessary step for any government wishing to democratize. The act of vetting is necessary in order to ensure that those most responsible for past abuses are no longer in power, and thus cannot continue to support the systems that fueled the conflict. The risk associated with not implementing a vetting program can be seen in the DRC and Burundi, where a comprehensive vetting of the government and security forces has yet to take place. The DRC h as continued to regress into conflict no matter how many peace accords are written and signed, this pattern is likely to continue until the perpetrators of abuses, and those most responsible for the violence are removed from positions of power and held acc ountable. Until then there will be a severe distrust from both sides (government and rebel), and conflict will be quick to reignite. Afghanistan has also yet to undertake any vetting program, and there is not much hope for implementing one so long as lea ders of the fractioned militias hold political office, and exercise control (largely through fear tactics with the threat of violence if their authority or legitimacy is called into question). International actors can provide meaningful insights into the state building and reform process, but there must be a mediating and limiting force within a state to appropriately channel these resources. Without a force such as the government to do this, the abundance and diversity of information and resources being thrown into a country can
80 be overwhelming, and even contradictory in some cases. The goals of the state in transition must be asserted, and respected by international actors for their support to be truly meaningful and useful in the long run. However, at the same time, donor countries must exercise their best judgment as to when to engage, and to what regimes they will support. Supporting regimes that continue to hold office through illegitimate means, and maintain a system based on corruption and patron age ties does little good for ensuring justice sensitive security sector reform objectives as outlined by the ICTJ and UN. While compromise is necessary for any program to be implemented, international donors should hold their ground on certain issues suc h as the need for accountability measures at all levels of the state, and provisions for the protection of human rights for all citizens, and the political willingness and commitment to implementing a justice sensitive approach to reforms. Security sector reform must be implemented with a collective, long term agenda. Small projects that are short sighted and address issues without consideration for other sectors of security sector reform and state building can be damaging to the state, and complicate the process as a whole. Taking this approach is similar to treating a symptom of a disease, without any consideration for how that treatment may affect the underlying disease. The approach taken in Timor Leste of placing the government in charge of the SSR agenda as a whole, and serving as the guiding channel for international involvement to be directed through has proven to be beneficial in achieving the state building goals. This approach also provides Timor Leste ownership of the reforms, and the power t o shape them as they see fit to the country. Allowing a state at least some control in the
81 reform process is necessary if any degree of success is expected, and permitting a state to take control of the reform efforts further increases the likelihood that the reforms will be implemented and maintained by the state. However providing a country complete control of the agenda, without comprehensive third party oversight can be more damaging to reform efforts than helpful, as was the case in Burundi. Each of the four cases presented provide different insights and lessons learned in the reform process. It is important to note that all of these states are still in varying degrees of the reform process. None of the states have completed their security sector r eform goals to date, and at least with the case of the DRC, current efforts (at least comprehensive nationwide efforts) have been almost entirely abandoned as conflict continues throughout the country, and the government struggles to maintain control, and has returned to the negotiation table to yet again try to bring an end to the conflict. Afghanistan is in a similar state. While their government does exercise some power, and political institutions have been created laying the framework for a democratic system corruption still runs deep in the system, and efforts for further reform are undermined by the leaders of fractioned militias who do not wish to give up their physical strength and a legitimate political system. In all of these states rebel forces still have a foothold in the country, and pose a constant threat to any state building or SSR reform efforts. Which is why so much care must be taken in this process to show the legitima cy and accountability of the emerging government, and to discredit the rebel forces and show that attacks on the people's rights will not be tolerated by the hands of the government security forces or rebel forces.
82 Chapter Four Reparations Programs in the Transitional Justice Framework The question of transitional justice has continued to exercise the minds of world leaders in contemporary times as individuals and groups become increasingly aware of their rights. Awareness of these rights helps the m understand situations where they feel their rights and personal well being have been violated and makes them aware of channels to address said injustices. Many countries have experienced long running conflicts between groups, sometimes simply a struggle for power, and others based on ideological or ethnic differences. Conflict, of any nature, often leaves sections of the population victimized. They cause disruptions in the daily lives of citizens as a result of widespread violence, oppressive regimes, stagnation of economic growth, and destruction of infrastructure for communities. In conflicts with a clear winner and loser it is often easy to oversimplify the categorization of people as either villains (those most responsible for mass atrocities and o ppressing another party or an oppressive regime) or victims (those who were oppressed and were forced to fight for their life and rights or innocent citizens affected by conflict). Even the categorization of groups as winners (the group that made the most significant political gains) and losers (party that has conceded
83 power) can be a broad generalization. When a time of peace comes, possibly through a change of government or agreement between the conflicting parties, sections of the society soon discover that their living conditions have been made worse by the conflict. Widespread conflict has a tendency to worsen or lessen the quality of life that citizens enjoy and this often becomes ever clearer to victims as an end to violence is reached, as citizens have time to be concerned with matters other than simply defending their own and their family's personal safety. The differences in the quality of life before, during, and after conflict are often alarming. To address this disparity, and as a measure of instilling confidence in the victims, those in power often come up with measures that are aimed at restoring the victims to a condition they would have enjoyed had their rights not been violated (this is the hope behind reparations, but most programs do no t make such ambitious claims). Here is where the concept of reparations comes in. This paper will examine the development of reparative justice in international law and evaluate the success of such justice in bringing peace in post conflict situations. El Salvador, South Africa, and Morocco will be used as cases to help in the understanding of how reparative justice programs can contribute to or inhibit peace and stability in a state. Reparations as a principle of law has been in existence for centuries. It is defined Arrianza 2004, 76). International law stipulates that as far as possible, reparations must be effective enough to obliterate the effects of t he illegality committed and re establish the situation that would have existed had no violation of rights occurred
84 (ICJ, 1986). Reparations are meant to have an impact on individual victims, as well as entire communities and societies affected by shifting focus to restorative justice even as retributive options may or may not be pursued. Where mass conflict and violations of human rights have occurred, reparation programs are implemented to aid in the rebuilding of society by emphasizing respect for margin alized persons, and to acknowledge and respond to the multitude of crimes committed. Reparative justice as advanced by the International Center for Transitional Justice (ICTJ) acknowledges that victims are rights holders with an entitlement to direct redre ss. Reparations programs are established to address the causes as well as consequences of violations of individual or community rights in both material and symbolic ways. The reparations to individual victims, groups of victims, civil society, and policy makers at both the national and international level. Although the concept of state to state post conflict reparations is not strange in international law, the concept of repa rations to redress violations committed against individuals and communities in a state is relatively new. This practice emerged with the post WWII Nuremberg trials and evolved into the standards common today by the efforts of victims in post authoritarian countries such as Chile and Argentina at the end of dictatorships based on military rule (ICTJ, 2010). Reparations programs are as diverse as the spread of violations as well as the needs of the victims whose conditions they attempt to remedy. Generally reparations programs can be classified as providing concrete goods and services, or symbolic measures. Reparations can be provided in the form of material
85 benefits including cash payments, pensions to be issued over time, discounted or free social servi ces such as scholarships, specialized health programs, housing and sustainable means of earning a living (ICTJ, 2010). Additionally reparations can be provided in a more symbolic way, such as with national monuments and the creation of a national day of r emembrance. Because there are so many channels through which a state can choose to provide reparations, there is no standard or expected way of implementing a reparations program. Iit is entirely up to the state and ruling party to prioritize the needs a nd wants of society and the ruling party. The United Nations (UN), which often works closely with the ICTJ, made a proposal for the classification of reparations as combining compensation, rehabilitation, satisfaction, restitution as well as guarantees tha t the violations will never be repeated. The demand for reparations is great in post dictatorial regimes and post conflict societies as a means of promoting healing. Although the contexts may be different, similar challenges are experienced in the attemp t to institute reparative measures. These include lack of sufficient political support, inadequate funding, issues with victim identification, how to facilitate participation in the program, and simply how to address the multitude of victims and the wide range of the violations committed against them. Other challenges include paying attention to gender, class, and other groups that may have been marginalized as a result of the conflict and may be otherwise left out of the reparations processes. Another c hallenge often faced is how to incorporate a reparations program into the larger
86 Reparative Justice Program endeavors to address these challenges via research, advocacy, exper t and technical assistance, and customized support and capacity building. The Reparative Justice Program of the ICTJ provides assistance to reparations related policy making and litigation, supporting and building of the capacity of groups of victims and civil society at the local level, and the development of knowledge and capacity on reparations. It also helps in the exploration of the challenges that reparations programs face (ICTJ, 2010). The Implementation of Reparations as Recommended by Truth Comm issions Countries seeking to achieve transitional justice are faced with a number of challenges. Broadly speaking, these challenges range from political and economic to social factors. Usually, truth commissions are one of the first mechanisms to be im plemented, and their findings help to pave the way for recommendations to the government to implement additional transitional justice programs. These recommendations often have far reaching implications that require total commitment from the government in order for successful implementation to occur. In order to understand how these factors can affect a government's decision on how to follow through on the reparation program recommendations made by the truth commissions three case studies representing var ying degrees of implementation and success will be examined; El Salvador, South Africa and Morocco.
87 Case Overviews The following section investigates reparation programs implemented in three different states emerging from conflict El Salvador, South A frica, and Morocco. These cases were selected in order to examine the multitude of factors that influence the planning and implementation of reparations in a post conflict, transitional justice framework. Each state displayed varying degrees of commitmen t to the reparations program, and in some cases, to the transitional justice framework as a whole. The influence of the international community on each state, and the degree to which the international community was involved in the process bore great weigh t in terms of how the state itself perceived its responsibilities in the reform process. El Salvador El Salvador offers a complex relationship between the twin processes of peacemaking and democratization. This relationship in turn had a bearing on the nature, limitations and scope of the transitional justice processes. The transitional justice and disarmament, demobilization and reintegration (DDR) initiatives had a close connection with the implementation of the peace accord timetable. For progress t o be made in the DDR, there was a need for the implementation of reforms in the political realm, which involved measures related to transitional justice. El Salvador was ravaged by a long drawn out civil war lasting over twelve years. In its wake, almo st 80,000 people were left dead. After a series of efforts aimed at
88 securing a ceasefire and a return to normalcy, the government of El Salvador and rebel groups who came together as the Farabundo Marti Liberation Front (FMLN) signed a peace agreement in 1992. A ceasefire was in place, but its longevity depended largely on the ability for the rebel forces to band together and form a political party. Negotiations for peace consequently revolved around demilitarization of unofficial armed forces, and democ ratization of the society, including the incorporation of the former guerrilla forces into the legal political system. A number of agreements were made between 1990 and 1992 in order to ensure progress on these commitments giving rise to a number of peace accords. Broadly, measures set forth in order to help with the realization of peace included the elimination of repressive state instruments such as the rogue militias, reform and vetting of the armed forces, establishment of a new National Civilian Poli ce force, judicial and constitutional reforms, and carrying out a reform of the electoral system. This last measure included giving the FMLN legal recognition as a political party. The Peace Accords set out a time frame for reintegrating former guerrill a forces into civilian structures with institutional reforms that the government needed to undertake in order to facilitate the process (ICTJ 2010). Simultaneously implementing reforms in the government and rebel forces led to some challenges. The FMLN r efused to demobilize and dismantle its entire military structure without a simultaneous realization of all the other measures contained in the peace accord; especially those that were fundamental to ensuring security for its members together with their ful l incorporation into the mainstream political system.
89 The total number of demobilized forces on both sides was 40,000, broken down into 15,009 and 22,600 for the FMLN and the Armed Forces of El Salvador respectively (ICTJ 2010). Though the disarmament a nd demobilization processes were largely successful, some of the reintegration efforts were a bit less successful. Political reintegration of the FMLN was pretty successful, but the reintegration of combatants (from both sides), as well as victims were no tably unsuccessful. Failure to take the needs of former child and female combatants, as well as other marginalized groups, into account contributed to many of the issues with reintegration. DDR efforts in El Salvador were able to facilitate some addition al stability in the country, but the process as a whole was not entirely successful (ICTJ, 2010: para 13). While DDR is not considered to be a transitional justice mechanism, in this particular case it set the stage and contributed to many of the complic ations faced in implementing transitional justice mechanisms in El Salvador. Additionally, it complemented the transitional justice goals outlined by the state, namely to incorporate rebel forces into the political framework. The Commission on the Truth for El Salvador was made operational in July 1992 and ran for eight months. Its formation was mandated in the peace accords signed between the government and the FMLN, and the commission was tasked to investigate serious acts of violations that occurred f rom the 1980s through the signing of the peace accord, including the nature and widespread effects of the conflict. Based on these findings, the truth commission was to provide an accurate record of the conflict, and to make recommendations as to ways of promoting national healing and reconciliation, which included provisions for a reparations program (USIP 2010).
90 After collecting evidence, the commission came up with a number of findings. Over 22,000 complaints were made to the Commission; about 60% wer e related to extrajudicial killings, and 25% were in reference to the disappearance of people (USIP 2010). From the evidence collected, the Commission concluded that 85% of the violations were perpetrated by state agents and were mainly concentrated in the rural areas, while only 5% of the violations were linked to FMLN (USIP 2010). The Commission made a number of far reaching recommendations, which were legally binding, based on these findings. The report recommended "measures to facilitate national reconciliation, including recommendations of material and moral reparations" (Greiff 2006). It recommended the dismissal of army officers as well civil servants who were found culpable. These officers would be barred from holding any public office, throu gh a process such as vetting. There was also a recommendation calling for radical legal and judicial reform to eliminate forced confessions, together with a reform of the security and other institutional apparatuses. The Commission refrained from recomme was largely compromised and could not do any meaningful work in its current state. Another recommendation of the Commission was to establish a body representative of the vari ous groups in society to oversee the implementation of these recommendations (Kritz and Mandela 1995). Despite being focused on security sector reforms (SSR), the recommendations made by the truth commission also seem to serve a reparative function in soc iety in this context. Removing abusive persons from office can take on a symbolic meaning for society
91 It is at the implementation stage that challenges began emerging. The civilian government as well as the armed forces were not supportive of the repor t and its findings, and they complicated efforts to establish any follow up organization. This was largely because many of the culprits deemed most responsible in the report remained in power. Hence, judicial reforms proposed by the Commission were not i mplemented (Greiff 2006). With regards to prosecutions, a few days after the release of the report the legislature enacted an amnesty law that covered civil war related crimes. The law was used as a political tool to protect state actors who were identi fied as committing mass atrocities in the report. Some token human rights trials have been conducted on the basis of evidence collected by the Commission, but convictions are rarely made (Burnett 2008). The government found it easy to flout the recommend ations because there were no social, political, or civil society groups applying pressure or demanding full implementation of the report. Even the FLMN, which should have pushed for full implementation, found its hands tied because it had been recommended that its top leadership should not hold positions in government (Greiff 2006, 160). As far as reparations are concerned, "the report included recommendations designed to provide reparations to victims of political violence" (Greif 2006, 458). The gover nment is yet to establish a fund that would facilitate payment of reparations to the been no moves to implement a reparations program by either the government or the forme r FMLN forces. The former FMLN combatants did not give the issue any priority,
92 as they were satisfied by their new found political positions. What mattered to them was the process of military and political reform and their subsequent transformation into a formidable political party. In a sense, this could also be seen as a reparative measure for the FMLN. The FMLN was provided power in the form of political recognition instead of monetary remuneration. During the negotiations between the government and FMLN, issues of reparations were never given serious attention (Greiff 2006, 157 158). The negotiations were mainly centered on power sharing between the rebels and former government with little regard for the victims. Without political representation, t he farmer whose land was destroyed, or the children forced to take arms, or the women who suffered at the hands of combatants had little voice in the negotiations. Civil society groups had trouble forming to fight for their rights or to push any agenda th rough legislation to better their situation and demand reparation. If the FMLN or government were to provide reparations, there was a possibility that it would be interpreted as a way of admitting wrongdoing and that they had committed atrocities. They f eared that the potential backlash it may cause would lead them to be subjected to prosecution. The human rights organizations together with the FMLN were more interested in finding out the truth rather than seeking justice for the victims of human rights violations (Greiff 2006, 158). Given the large number of victims, paying out large monetary reparations to all victims was not economically viable. The Commission acknowledged this in their report, and gave the government a sort of reprieve by recognizin g that the government had serious financial constraints preventing it from paying reparations to all the victims of
93 human rights violations (Hayner 2002, 177; Greiff 2006). To address this lack of funding, the Commission recommended that 1% of all foreign assistance go towards providing reparations. However, this recommendation was never accepted or implemented by the government and little was done to provide reparations to victims. Some scholars also point to a lack of follow through on the part of the international community, including the United Nations for not requiring the government to institutionalize the 1% condition when providing aid to El Salvador, or even to push for the implementation of state based reparations as recommended by the commissio n (Greiff 2006, 160). As moral reparation, the report recommended the creation of a national monument in San Salvador recognizing all of the victims of the conflict identified in the report. It also recommended the establishment of a national holiday in r emembrance of the victims and "as an expression of national reconciliation" (Greiff 2006, 463). Well over ten years have passed since the signing of the peace accords and almost none of the Truth Commission's recommendations were implemented (ICTJ 2010). Greiff posits that this failure to implement the recommendations of the report is rooted in three factors. The first was that the recommendations in the report were not the result of negotiations between relevant parties in the state (Greiff 2006; ICTJ 20 10). The Commission and investigations were run by three foreigners appointed by the United Nations. The signatory parties of the Peace Accords had no representation in producing the report, and thus had no real investment in seeing out its recommendatio ns. Which brings us to the second factor: the lack of political will or investment to comply with the
94 recommendations. Since there was no representation of domestic interests, there was also no political force in El Salvador willing to champion the repar ations programs proposed. There was no military or political power to be gained as a result of supporting a reparation program. If anything, choosing to support a reparations program could be damaging to one's political career. Since many government for ces, as well as FMLN forces, were identified as perpetrators in the reports, they did not support following through on any of the report's recommendations fearing that such action could be interpreted as an admission that they were in the wrong. Also, imp lementing some of the recommendations might imply that all recommendations of the report should be followed through on, including recommendations for the prosecution and removal of past perpetrators from political and military rank. There were also few ci vil society organizations fighting for victims' rights and many of the NGOs operating in El Salvador "were relatively passive actors and had little influence on the post Truth Commission process" (Greiff 2006). The heavy dependence on the international com munity also provided an out for domestic actors to not take ownership of, or commit to the proposed reparation program. The third factor that Greiff proposes as inhibiting the implementation of a reparations program was the far reaching nature of the reco mmendations presented in the report. The Commission's recommendations for a reparations program were far beyond anything that the government of El Salvador could meet. Furthermore, by placing funding responsibility on the international community, the Com mission was relying on the notion that the international community would want to provide funding for a reparations
95 program. One reason why the international community may not have supported funding the reparations program was because many in the internati onal community "considered reparations a fundamental responsibility of the State" (Greiff 2006), and further believed that a state's investment in and contribution to a reparations program provides a greater reparative value in and of itself (Greiff 2006). South Africa For decades, South Africans suffered under the racially divided apartheid system of government. Those in power tended to be white and of European descent and were supportive of the apartheid system. This system was known for oppressing bl ack natives by subjecting them to mass violations of human rights, war crimes, and forced sub par living conditions. Most freedom fighters, such as Nelson Mandela, were imprisoned, killed or forced into exile (Bell, Dumisa and Dumisa, 2003). Meanwhile, p ressure continued piling up on the racist regime to give freedom to the Africans and desist from subjecting them to acts of human rights violations. These pressures were coming from inside the country and from international actors. Eventually these press ures culminated and led to the release of Nelson Mandela, as well as some other political prisoners, and opened the door to widespread socio political reform. Following reform Nelson Mandela was elected president in 1994 and began efforts to unify the cou ntry with policies such as the National Unity and Reconciliation Act (NURA 1995) which mandated the creation of the Truth and Reconciliation Commission (SATRC) (Freeman and Hayner 2003). The Truth and Reconciliation Commission was established after the ab olition of apartheid to
96 look into the issues of repression to which the blacks had been subjected during the apartheid regime. Its main purpose was to provide accurate documentation of the human rights violations that occurred and the political mechanisms that fueled the conflict, as well as to provide restorative justice to the victims of repression. The National Unity and Reconciliation Act was created to foster a culture of tolerance in South Africa and to move on from past injustices. The act and r esulting SATRC were created with great care for the specific context and needs of South Africa and its people. Both documents recognized the important role that religion and community based initiatives could play in helping the people reconcile with the p ast. The documents were also sensitive to the needs of both blacks and whites remaining in South Africa. For example, the SATRC was given the ability to grant amnesties to anyone who disclosed all relevant information relating to politically motivated vi olence, this power was given to the SATRC to serve as an incentive for war criminals to come forward and participate in the SATRC hearings. Witnesses to the SATRC were identified as those who had gone through gross human rights violations. The commission invited them to give evidence of their experiences either in public or private hearings. Those who had perpetrated these violations were also given the opportunity to present their testimonies and request for amnesty from criminal as well as civil prosec utions in cases of politically motivated violence. Many players saw the SATRC as a vital component in the transition from the oppressive apartheid regime ideally to a state of democracy in South Africa. Though the commission encountered many challenges, it is still regarded to have been relatively
97 successful in overthrowing the oppressive regime and providing reparative measures to the people of South Africa (Boraine 2001, 106). The commission was also mandated to make recommendations to the South Afric an government as to additional mechanisms that should be employed to foster a state based on democratic norms and to facilitate rehabilitation in the country, and it was to compile a comprehensive report on their findings and recommendations with the view to deterring any future human rights violations (Ross 2002, 61). The SATRC held a number of hearings and conducted over 20,000 interviews with victims of human rights violations. It also processed close to 5,000 applications for amnesty. The primary findi ng of the TRC was that the apartheid regime was responsible for the predominant portion of the gross human rights violations during the apartheid era. These violations occurred in collusion with law enforcement and security agencies. Among other things, the state was accused of planning, undertaking, condoning, and covering up unlawful acts committed by its agencies. These acts included extra judicial killings of opponents in and outside South Africa and the holding of political prisoners without reason. The state also colluded with other political groupings in the state, such as the Inkatha Freedom Party to violate the human rights of opponents. The state was also held responsible for murder, torture, and abductions (Boraine 2001; Villa Vicencio and Ve rwoerd 2000). The SATRC had a long list of recommendations on the way forward for South Africa. The list included a recommendation for the institutionalization of a reparations program to compensate victims of human rights violations. The Reparations Tr ust Fund
98 was to be established and managed by a board of trustees drawn from the government, civil society and local and international business organizations. Ideally the trust would facilitate the raising of funds, auditing and budgeting victim support, and exercising general financial controls and accounting. Funding for the trust would be drawn from a once off wealth tax imposed on wealthy South African industrial and business players and the beneficiaries of the apartheid system. This stipulation ess entially forced supporters of and beneficiaries of the apartheid regime to contribute monetary aid to the reparations trust fund to be redistributed to victims (Greiff 2006). This idea was proposed with the hope that a system of this nature would help bri ng the two classes together, and show that both groups were ready to move forward as a unified country by having the former supporters of the oppressive regime directly providing support for reparative measures (Greiff 2006). It was also recommended that the government take deliberate measures to transform South Africa from a society ruled by xenophobia, racism, and other forms of intolerance to a democratic state. Ministers and heads of other agencies whose activities directly relate to victims of human rights violations should make regular reporting on their activities, and the Department of Education particularly was asked to give preferential treatment to students whose academic careers were disrupted by apartheid related activities. Other recommenda tions included efforts aimed at remembering the past and those who suffered and were killed during the time of the apartheid. For example, the SATRC recommended the formation of a task force to look into issues related to disappearances and exhumations, h olding a conference to promote healing and
99 in remembrance of the fallen heroes, and getting a public apology from the former heads of state on behalf of those who perpetrated human rights violations. en fully realized because of several factors. The success of reparative measures required unwavering follow up by the government. The government has, however, often skirted around implementing many of the recommendations made by the SATRC. In some ways, the reparative measures actually provided by the government in South Africa reinforced the pre existing divisions between socio political parties rather than unified them. Many victims of abuses under the apartheid regime feel as though they have been de nied justice. After the release of the SATRC report, the victims expected to be granted some form of reparative justice as, indeed, they had been promised. All the while, the government readily granted amnesty to the perpetrators of human rights violatio ns (when politically motivated), which did little to provide victims any concrete sense of justice. Additionally, there has been no follow up on the beneficiaries of the apartheid regime to make their contribution to the reparations trust fund, and the go vernment has done nothing to ensure contributions (Richard 2001, 27). Even worse, many of the beneficiaries of apartheid remain in positions of power in the current government, or have close relationships to individuals in the government. Following up on their contributions could potentially ruin the mutual relationship leading officials enjoy, and be detrimental to the government and stability. Business and industrial players have incorporated politicians and government officials into their businesses, making it nearly impossible for the government to follow up on the wealth tax that should have been imposed on
100 businesses that formerly supported apartheid, without the current government itself suffering. Even more detrimental to the implementation of de mocratic norms and hope for reparations to victims, some government officials have attempted to dismiss the SATRC entirely by claiming that the victims who appeared before the SATRC were impostors, opportunists and unrepresentative of society at large (Mof okeng and Hamber 2011, 59). It seems odd that the government, which requested victims to appear and testify before the SATRC, would turn around and call them unrepresentative opportunists. However, lack of follow through on this issue simply highlights t he corruption that continues to exist and perpetuates apartheid era disparities in the country. Because major companies who previously supported apartheid remain an influential force in South African politics and major donors to the country, there is litt le motivation for change. Since the report of the truth commission was published, South Africa has done little to provide reparations to the victims of mass human rights violations. The lack of participation of three groups essential to the success of th e reparations program in South Africa namely the government, perpetrators of human rights violations and beneficiaries of the apartheid regime has resulted in a distrust toward these groups on the part of those who identify as victims. These three gro ups failed to adequately meet their obligations and thus impeded the implementation of a reparations program. Some victims have expressed a sentiment that the real beneficiaries of the SATRC process were the perpetrators of the human rights violations, wh o received amnesty for their violations, while the victims came out with little more than recognition
101 of the abuses that occurred (Doxtadre and Salazer 2008, 82). The reparations provided to victims in South Africa was minimal. The body charged with re searching and further planning a reparations program following the SATRC was criticized for its lack of transparency in how decisions were to be made, lack of fairness in the selection of victims, and the amount of time it took to produce results. Civil s ociety felt as though they played no role in the reparations process, and thus did not perceive the minimal monetary remuneration they were provided by the government (if lucky enough to be selected as a qualifying victim) as a measure to facilitate healin g, forgiveness, and reconciliation (Crawford Pinnerup 2000). While the government was able to provide some reparations to victims, it had the capacities necessary to implement a much larger scale reparation program but neglected to do so. The government chose to keep the support of, and in essence protect, the corporations and institutions that previously funded the apartheid regime, instead of prioritizing the rights of all citizens and attempting to rid the government of past abusive institutions. Furt hermore, in wanting to appease these corporations and wealthy state actors, the government chose to ignore many recommendations even for symbolic reparative measures such as creating a national holiday in remembrance of the conflict, or providing community specific reparations in the form of establishing institutions such as schools, hospitals, and other public welfare offices in communities most damaged under apartheid rule. Because of these decisions there still remains a large socio economic divide in South Africa. The SATRC's Final Report stated that "without adequate reparation and rehabilitation measures, there can be no healing and reconciliation" (Final Report, 175).
102 Without a concerted attempt at a reparations program, the government loses face with the victims, and its legitimacy and commitment to change can easily be called into question, which leaves the door open to future uprisings as victims feel distanced and isolated from the ruling elites and political processes. For social justice to be realized in South Africa, the government must implement a reparation program, preferably one that incorporates monetary and symbolic measures. Furthermore, the government must be wholly invested in the process to show the people of South Africa that it has recognized and addressed the injustices of the past and are committed to preventing recurrence of such abuses. Morocco Morocco's struggle for independence from France in 1956 spawned regional revolts and the emergence of two major political parties (Maghraoul 2002). Following independence Sultan Mohammed V became king, and in an attempt to subdue any opposition he subjected the people of Morocco to strict and unjust rule of law. His reign however was short lived and he was succeeded by his son Hass an II in 1961. Hassan was known for employing a slightly more accommodating style of repression using a system based on harsh punishments and handsome rewards. His prowess as a dictator lay in his ability to "co opt members of various parties, squelch di ssent, crush enemies, and still be regarded by many as a beloved monarch" (Campbell 2003, 39). During the family's reign a number of conflicts over leadership occurred. Hassan II, like his father, feared being challenged by opposing parties and the threa t of being dethroned. To quell this fear, Hassan sought out any groups he perceived as a potential threat to the monarchy such as
103 Marxists, trade unions, intellectuals, and in some cases subjected them to harsh punishments based solely on rumored politica l affiliation (Slyomovicks 2005, 21; Canpbell 2003). Under Hassan's rule there were widespread violations of human rights in Morocco. Violations included forced disappearances, torture, arbitrary detentions, sexual violence, and forced exile. Following Hassan's 38 year reign, his son Mohammed VI took the throne. Faced with allegations of mass human rights violations committed under his father's rule, King Mohammed VI called for the establishment of the Justice and Reconciliation Commission (MJRC) to inv estigate past crimes. The MJRC, was established in January of 2004 by King Mohammed VI and was charged with the responsibility of inquiring into allegations of gross human rights violations that took place from independence in 1956 through 1999. The comm objective was driven by the desire to ensure that the human rights of the Moroccans are protected and promoted at all times. The Commission had the mandate of investigating, researching, evaluating, arbitrating, and making recommendations and pro posals for reform. The Commission held hearings and gathered testimonies from a variety of interested parties, such as the victims of the violations and their families or other representatives, public officials, and nongovernmental organizations. The Co mmission also examined documents in archives. At the end of the exercise, the Commission was able to establish violations that were committed by both state and non state actors. Following the investigation and a series of hearings and testimonies, a numb er of recommendations were made. One of the most important recommendations was a
104 demand for reparations to be provided to victims of serious human rights violations. This step was crucial if justice for the victims was to be seen to have taken place. Com munal reparations were also recommended for regions and communities that had suffered collective human rights violations. There was a need to adopt and support socio economic and cultural development programs in regions and cities that bore the brunt of m ost of these violations. The Commission also recommended that some of the perpetrators be given indemnity for their violations if they confessed and were repentant. Those victims who had suffered serious physical injuries that required more medical atten tion were to be given medical treatment, while those with psychological problems were to be taken for rehabilitation. A process of social reintegration was also proposed as a way of making the victims and perpetrators change their view of each other. Unre solved or persistent legal issues over some of the violations were to be dealt with speedily and conclusively. Administrative, legal, and judicial reforms were also to be carried out in order to bring back the faith of the people in their own institutions Broad based recommendations included the consolidation of measures that guaranteed respect for human rights, adopting and implementing integrated national strategies that inhibit impunity, and consolidating state laws while reforming the justice, secur ity, and legislative systems and revamping criminal policy. Another recommendation that could be credited with the success of the rest of the policies called for the institutionalization of a follow up mechanism to ensure successful implementation. The c ommission felt it was prudent to establish mechanisms that would ensure the decisions regarding indemnity and modalities of granting both individual and
105 communal reparations and other actions were adhered to (MJRC 2006, 92). arations program is credited to the active follow up by government and civil society. Its communal reparations program provided a valuable lesson in dealing with collective reparations. The government pursued a development dimension that sought to addres s the economic and social needs of the target communities. At the symbolic level, all former detention camps were converted into memorials, social, cultural, and economic centers as a way of wiping out the bitter memories of the past. The government ident ified eleven regions and communities that suffered greatly from collective violations or isolation because of accommodating discrete detention camps and gave them assistance in reparations. These regions and communities included Khenifra, Al Hoceima, Zago ra, Figuig and Hay Mohammadi (Touahri, 2008). The Advisory Council on Human Rights (MCCDH) that was set up by King Hassan II dealt with issues of individual reparations. It distributed individual reparations to all the victims to near perfection. As of 2009, more than 9,000 individual victims had received reparations amounting to $85 million. The government has shown political willingness by having some ministries sign agreements with the MCCDH to provide vocational training and medical care to the vict ims and their families. The Ministry of Employment and Vocational Training has pledged to cooperate with MCCDH in providing vocational training to individuals and communities affected (Touahri, 2008). The involvement of both local and national actors has 2009).
106 The Impact of Reparations Programs on Transitional Justice Transitional justice aims at achieving certain objectives for a state emerging from conflict and encompasses all groups in the country including, bu t not limited to the government, the victims of human rights violations, and the perpetrators of these violations. The mechanisms used to address past violations and support these groups are often recommended by a truth commission charged with investigati ng the conflict (Steiner 1997, 15). The victims of human rights violations and marginalized groups often wish to see their perpetrators brought to justice. While justice in the form of prosecution can provide ease of mind and hope for a brighter future fo r victims, this form of justice does not directly provide any physical benefit for the victims to better their current situation. The South African TRC recommended combining elements of reparative and prosecutorial justice. The SATRC proposed a system th at would require beneficiaries of the apartheid regime to contribute to the Reparations Trust Fund. This approach would have been groundbreaking in the field of transitional justice if it had been successfully implemented, or implemented at all. Providin g reparations to victims can also serve to restore victims' confidence in the government. When the government provides reparations, it can be interpreted as a way of communicating that the government is committed to preserving the rights of the people, and addressing the state's prior failures to protect the citizens when their rights
107 were being violated (Laplante and Theidon 2007). The victims can develop a sense that the government is finally treating their condition as having arisen from its moral, ethi cal, and legal failure. Paying reparations is a sign of commitment by the government that it is ready to move on from past abuses. When it is done on interim basis as the victims await prosecutions, it would help forestall the possibility of relapsing in to revenge attack, violence, mass action and defiance against the authorities. Once the victims discover that something, however small or symbolic, is being done about their condition, they are likely to at least dismiss some of their anger and frustratio n as they feel they are at least being paid attention to (Laplante and Theidon 2007). Evaluating reparations in the context of transitional justice proved to be an interesting task, for each transitional justice mechanisms is intended to serve a reparati ve function in society, be it concrete or indirect. Despite this, many states choose to institutionalize a program strictly committed to providing reparations to the people affected by conflict. This decision is essential for the state to show that it is taking responsibility for past abuses and is committed to redressing them. While all mechanisms do provide reparative value to the state, having a program that is strictly meant to focus on reparations ensures certain needs of the people will be addresse d. If a state can recognize and take advantage of this realization, and structure its reparations program to best focus on the sectors of society that are not necessarily addressed by other mechanisms (if SSR efforts include measure to reintegrate former combatants, reparations programs to do the same would not be necessary). Thus, allowing the
108 benefits associated with the implementation of transitional justice mechanisms to be felt by all, or at least more sectors of society. Civil conflict often leaves the socio political landscape of a state in disarray, creating many rifts between different sectors of society. Many states choose to implement an array of transitional justice mechanisms to address the disparities present in the country, and to help cre ate a stable government committed to defending the human rights of its people. The suffering experienced by the people in times of conflict cannot be put to rest until the victims feel that their voice has been heard and justice has been served to those r esponsible the mass violations. Although justice is often thought of in terms of criminal prosecutions of the culprits, reparations, if well handled and implemented, could prove just as effective. The Truth Commissions evaluated in this paper recommended reparations programs, but success in implementing such programs depended on the commitment of those in power. Whereas El Salvador was the worst case, South Africa simply failed to follow through on the process of implementation, leading to failure by the t wo countries. Where there was commitment from the government in the Moroccan context, successful implementation has led to the cooling of tensions as the victims feel that something has been done about the violations they were subjected to. In this manner reparations programs fit into the transitional justice framework by providing another way of recognizing of past abuses, and showing a commitment to change. However, to achieve such ends the government must be committed to following through on its commi tments, and carefully planning their implementation in order to avoid further marginalizing any groups, or deepening any social cleavages that may be on the mend.
109 Chapter Five Conclusion This portfolio began with an overview of the use of transitio nal justice mechanisms and why they should be studied in relation to post conflict development. While the introduction provided a short description of each individual paper included in this portfolio, and justifications as to why they belong together, thi s concluding paper will serve the opposite purpose. I will briefly revisit and summarize the content of each paper and their main arguments, drawing lessons for the design and implementation of transitional justice mechanisms from comparing and combining their findings. This conclusion will also consider what could have been done differently in this study, and highlight some points of further inquiry and how these studies may be built upon or considered with a new approach. Summary The first paper look s into the simultaneous implementation of the Truth and Reconciliation Commission of Sierra Leone and the Special Court of Sierra Leone. Both
110 mechanisms are seen as being generally beneficial to the state and society at large. This paper focused specific ally on Sierra Leone because it is the only post conflict state to date to institutionalize both a truth commission and war crimes tribunal controlled domestically. A few comparisons are drawn to Timor Leste in the transferability of assumptions section. However these comparisons are used primarily to highlight the necessary preconditions for institutionalizing a truth commission and war crimes tribunal. Sierra Leone was significantly more successful in implementing both institutions simultaneously b ecause there was a high degree of support at both the governmental and civil society levels for the implementation of both judicial and non judicial mechanisms. Civil society and the government were and still are pursuing those most responsible for the co nflict. Another factor that comes into play is the nature of the conflict in Sierra Leone and Timor Leste. Sierra Leone was emerging from a widespread civil war, whereas Timor Leste was emerging from a war for independence. The resulting peace accords, and priorities of the state and society emerging from each type of conflict is likely to be very different. The second study looks into the application of security sector reforms and its relationship to the institutionalization of democratic norms in a po st conflict state. This study focuses on the cases of Afghanistan, Burundi, the Democratic Republic of the Congo, and Timor Leste. Each case presents a different approach and a different set of priorities in implementing security sector reforms. Some ap proaches have proven to be more successful than others. One element that has proven to be necessary in the implementation process is domestic support for and commitment to the reform process,
111 and eradicating corruption. Without this commitment, reform is unlikely to be successful or really accomplish anything. If a state is not determined to address the past abuses and correct the institutions that allowed them to occur, meaningful reform is unlikely. This study attempts to draw out common findings and recommendations for security sector reform planners, which may contribute to more effective SSR programming in countries emerging from conflict. For SSR projects to have a positive impact on the greater transitional justice goals and the implementation of democratic norms, the projects should be long term and be implemented at every level of the state. Valasek points out that in post conflict states, SSR is necessary to prevent the re occurrence of violence and ensure turn is necessary to initiate reconstruction and (Valasek 2008, 18). The security sector must undergo reform so that the state can enforce rule of law, and maintain a sense of accountability and show that abuses will not be tolera ted. Meaningful SSR and transitions are not possible where a culture of impunity prevails. The final paper focuses on how reparations programs fit into the larger transitional justice framework. Reparations programs are as diverse as the multitude of vi olations as well as the needs of the victims to whose conditions they attempt to respond. Generally, reparations programs can be classified as providing concrete goods and services or symbolic measures. Reparations can be provided in the form of material benefits including cash payments, pensions to be issued over time, discounted or free social services such as scholarships, specialized health care programs, housing, and sustainable means of earning a living. The study focuses on the reparations program s implemented
112 in El Salvador, Morocco, and South Africa. While each transitional justice mechanisms is intended to serve a reparative function in society, be it concrete or indirect, many states choose to implement a program with a primary objective of pr oviding reparations to the people affected by conflict. Doing so ensures that the needs, or at least some needs, of the state and society are being carefully considered and addressed. Reparations programs are often used as a way of recognizing and addres sing past abuses, and provide benefits to individuals affected by conflict in order to help them recover from the injustices suffered, and return to a status of life experienced before conflict. The state as a whole often experiences benefits associated w ith providing individual reparations, such as increased trust and faith in the government, reduced tensions, and economic and social growth. Points of Further Inquiry With the first paper, maintaining a singular focus on Sierra Leone's simultaneous imp lementation of a truth commission and special court provided an attractive research question, but by no means is simultaneous implementation the only option. Limiting the scope of this study to one case and process of implementation makes it difficult to make broad or general claims about how the two may be implemented. While the paper was structured in this way in order to answer the questions of what conditions allowed simultaneous institutionalization to occur in Sierra Leone, this approach had a way o f limiting itself.
113 The choice to include Timor Leste in the final section of this paper also threw a bit of a wrench in the analysis. Deciding how to incorporate it for comparison proved to be more difficult than I originally expected. The nature of the conflict greatly differed from that of Sierra Leone, as were the terms in the peace negotiations and the emerging government. Where Sierra Leone was emerging from a civil conflict in which all relevant parties were present in the peace negotiations, Timo r Leste was emerging from a war for independence from Indonesia where the negotiations were conducted among the government of Indonesia, an unofficial ruling party in Timor Leste, and international mediators. It seems as though the differing conditions in each emerging state held great influence on the state's priorities, and transitional justice goals. I thought that the Timor Leste case was worth mentioning for the reason that there was a war crimes tribunal in place at the same time as a truth commissio n. However, the government has been notorious for continuously blocking any efforts of the international investigative body to bring cases to court. Additionally, the international unit does not have the right to indict any criminals, merely to investiga te cases and present evidence to the general prosecutor (a domestic office). A further investigation and comparison of these two cases would greatly add to this study. Another condition that I cannot seem to pin down, is the role of civil society. Ther e was strong international involvement during the peace process and planning stages in both states. In Timor Leste, there were already grassroots organizations and civil society organizations rooted in the state at the time of independence. In Sierra Leo ne, civil society groups were very limited at the time of the peace negotiations. I do not
114 know if it is because of this lack of civil society groups that such emphasis was put on educating the public in Sierra Leone about the functions and objectives of each institution. As a result of these educational efforts, civil society as a whole was engaged in, committed to and generally interested in the functioning of the mechanisms. However, in Timor Leste a state familiar with reform agendas and with civil s ociety organizations already present, information campaigns were very limited, and civil society as a whole seemed pretty apathetic to the process. Information about the court system in Timor Leste is often very double sided. There are just as many docum ents boasting rule of law in Timor Leste that attempt to overlook, or rather downplay the fact that they are not actively pursuing war criminals, and instead focus on their enforcement of current domestic law, as there are criticizing the court system. To incorporate a full analysis and comparison of Timor Leste in the first paper would necessitate an analysis far beyond the confines of this singular paper in the portfolio. However, I would like to revisit this to better understand why Timor Leste has purs ued some manners of transitional justice so actively, yet has championed others only in name and not in practice. Again though, that was outside of the scope of investigation for this thesis. An issue encountered in the second paper was quite the opposit e. Instead of limiting the study to a single case, I took a comparative approach looking at Afghanistan, Burundi, the Democratic Republic of the Congo, and Timor Leste. With this approach it was hard to maintain a balanced analysis, paying equal attentio n to each case. The variations in each case also made it difficult to establish any standard or parallel analysis or comparison between the cases. Hence, this paper developed in a more organic manner
115 including a review of the academic discourse on securi ty sector reform, a summary of the nature of conflict in each country, and then an evaluation of many noteworthy components of each country's application in order to make recommendations to future planners of SSR reform. The findings of this study can bes t be described as an overview of some significant lessons learned from past reform efforts, and the effects, either positive or negative, that reforms can have on a state. Due to the nature of the conflict, Timor Leste, again, proves to be a a particularl y interesting case. Where each other case in this study truly necessitated reform of abusive security forces, in Timor Leste the security sector of the new state had to be developed. Instead of answering questions of how to go through the vetting process planners were attempting to structure a military force from groups of freedom fighters. One of the main difficulties I encountered with the final paper was considering all of the definitions of reparations relevant to transitional justice. It was not u ntil this paper was finished and I looked back over the entire portfolio that I realized the centrality of reparations, and how broad and all encompassing their importance is. At this point I became very interested in the ways in which each transitional j ustice mechanism can be viewed as providing reparative value. Particularly interesting was how mechanisms that do not provide concrete goods to the people can still serve a value to the state and society as a whole. To best understand the many layers of the indirect costs and benefits associated with the institutionalization of transitional justice mechanisms research would have to be conducted of both quantifiable and qualitative data. Surveys could be used to gauge how citizens were affected by each in stitution's operations, and their general
116 perception of each mechanism. Since surveys and statistics are hard pressed to paint a complete picture, especially in turbulent post conflict environments where conducting an unbiased survey may be difficult, a c omplimentary qualitative examination of, say, policy changes in a state can help develop a more comprehensive understanding of the effects, both direct and indirect, of each mechanism on a state. I kept the focus of the paper on the effects of institution s entirely designed to address reparative needs of a state as structured by the government. I was unable to obtain as much documentation as I originally hoped to explain the motivation behind how a state chooses to implement a reparations program. Since both liquid assets (money, property, food, etc.) and symbolic gestures of good faith (policy changes, memorials, national holidays, political representation, etc.) are provided, it was quite difficult to establish an approach to measure or make claims of t he efficacy of reparations programs as a whole. Instead, I structured my question to look at how reparations programs contribute to transitional justice, only to realize that in essence all transitional justice mechanisms serve reparative values to the st ate and society. While working on the ex combatant section of the paper on Sierra Leone, I developed another question worth further investigation. How can reparations be best suited to provide comprehensive benefits to the state as a whole? Or to put it another way, is it possible for reparations to be provided equally throughout a state without causing or contributing to any social cleavages? In Sierra Leone, many communities felt that reintegration of ex combatants was more efficient and organic once t he reparations provided specifically to ex combatants ended. Reparations are meant to identify
117 marginalized groups and provide benefits to them to redress past injustices, but how can the reparations be provide in a way that does not single them out? Ano ther student who wrote on the reintegration of former combatants in Northern Uganda, found that the ex combatants were often placed back in their former communities and provided some basic goods a mattresses, food, small remuneration, etc. Instead of fa milies and communities welcoming back their parents, children, siblings, and neighbors, they sometimes excluded them, and took the reparations meant for the former combatants. The people of the community did not have a shared experience of the conflict wi th the combatants, and did not see it fair that these former soldiers were given reparations, while they, the victims of the ex combatants, were given none. The members of the community had to take on the responsibilities of those who forced to fight duri ng the war while they (the members of the community) suffered through the war, but received nothing for it. One proposed approach is to establish reparations not just for individuals, but also for the communities to which the individuals are returning in order to maintain a degree of balance. Another issue that can be seen with both the SSR and reparations paper is selection bias. I chose the cases based on their similarities and dissimilarities in an attempt to attain a broader understanding of the imple mentation of each mechanism. However, with the qualitative approach I chose to take in these two papers obtaining a truly random sample would be impossible, as such, selection bias was inevitable. I did my best to keep this in mind when choosing cases. Another main considerations in the selection process included the availability of relevant and academic information. It would be interesting to take a broadly cross national approach, and perform a statistical
118 analysis to better understand why states choo se to invest in transitional justice mechanisms, and attempt to and identify some conditions that influence the degree to which states implement the mechanisms. Conclusion The three papers selected for this portfolio all investigate the role of transiti onal justice mechanism in transforming states from conflict. They did this by examining the ways in which states choose to implement the various mechanisms. It became ever clearer that the mechanisms follow a general order of implementation, and that the re is a pattern of interaction between them. Truth commissions tend to be the first mechanism implemented and set the stage for other mechanisms to be institutionalized. For example, the framework for each of the reparations programs studied was recommen ded by the negotiation process, and they are positioned ideally to make recommendations to an emerging government as to sectors of society that need attention and what i nstitutions may be best suited to fulfill their needs. Many of the mechanisms have overlapping goals and objectives. At the root of all transitional justice mechanisms is a desire to foster growth, development, and the foundations for sustainable peace in a state. Since transitional justice mechanisms share this objective, it is not uncommon for there to be overlap between the mechanisms. For example, reparations programs and security sector reform efforts often overlap with
119 regards to former combatants and providing assistance for reintegration. However, states often fail to set a comprehensive reform agenda that takes advantage of this potential; in some instances the planning was so compartmentalized that mechanisms were left at odds with each other. More than anything else, this portfolio serves as an exploration into the effects of various transitional justice mechanisms as applied in post conflict sates. It evaluates the multitude of challenges faced in implementation and some of the factors that p rove to be most detrimental to successful institutionalization and functioning. The behavior of a state is hard to predict, especially in post conflict environments where the government is just getting its footing. It is hard to foresee how a state will take to transitional justice mechanisms, particularly to what degree they will implement the mechanisms and commit to them in the long term. When successful implementation occurs, the mechanisms help consolidate the state and society, and they contribute to the broad acceptance of democratic norms and the creation of institutions committed to sustainable peace and good governance practices. The mechanisms help ease the efforts of state building and maintaining stability in the long term. The question ar ises, of what if any preconditions are necessary for transitional justice mechanisms to be properly suited for a state. Not all states choose to implement truth commissions after emerging from conflict. The nature of the conflict and peace process hold g reat weight when conflict is statewide large programs such as transitional justice projects are likely to be pursued to help the state as a whole reconcile and implement reforms. When conflict remains at more sub national levels the use of
120 transitional ju stice mechanisms, at least in the traditional sense is less likely. When conflict has been statewide, the push for peace and an end to conflict is also widespread, and deep rooted in the state and society. However, when conflict is localized to specific regions of a state, the desire for reform is generally limited to that region instead of the whole state. Additionally, for transitional justice mechanisms to be implemented there must be an end to armed conflict, as well as some sort of government or orga nizational structure emerging with the end of conflict which can oversee the implementation of the mechanisms and generally enforce rule of law. International actors and organizations should make a point of it to support the emerging government and assist with professional capacity building in order to build the integrity of the new state. Efforts should be taken not to undermine the emerging government, as was done in Afghanistan with the US' heavy reliance on old patronage networks and factioned militia s. Balancing political interests and justice can prove to be quite the challenge in the post conflict setting. In states where beneficiaries and victims of former regimes share power measures should be taken to reduce the likelihood of politicians seeking revenge through policies and the like. Measures to do so can take the form of establishing civil society oversight groups, or generally third party oversight groups in order to maintain a system of checks and balances between the various sectors of socie ty. Some approaches to the transitional justice framework have proven to be more successful than others. A key component in any reform process is that all relevant actors must communicate and be flexible with one another at all stages of implementation.
121 Reform efforts often suffered in cases where a multitude of international and domestic actors were operating in a state and communication among them was limited. This could be seen in Afghanistan with regards to SSR programs, and in El Salvador in almost all areas of transitional justice programming. Another necessary condition for successful implementation is state commitment to reforms. This seems obvious. However, things are not always as they seem when first evaluating states. Additionally, all grou ps in the state must be considered in this evaluation. Even if an emerging government in a state is supportive of reform efforts, this is not a guarantee that reforms will be implemented. The complex nature of post conflict states and power sharing dynam ics between legitimate political and civil society groups, and rogue militias can be a major hurdle to reform efforts. This problem could be seen to varying degrees in almost all the cases studies. Whether it was imposing limits on truth commissions, or blocking any efforts at vetting security forces, or not providing reparations, each case investigated in this study experienced the blocking of the reform process by some group operating in the state. The web of transitional justice mechanisms and their ob jectives and processes in post conflict settings is unbelievably complex. This has only become clearer with the completion of this portfolio thesis. Each time I felt as though I had answered a question posed, three more questions of equal, if not greater complexity arose. To move forward, a state must first address the past and show that violence and mass human rights abuses that were previously the norm will no longer be tolerated. The whole web must be considered in understanding the past and moving forward. Transitional justice
12 2 mechanisms are one of the primary channels through which states do this, and they are used to establish the foundation for a consolidated state committed to justice and human rights. While transitional justice mechanisms are often focused on addressing abuses of the past, the driving force behind these mechanisms is to prevent future conflict. Varying degrees of success have been experienced with the implementation of each mechanisms in each state, but they are generally str uctured and planned with the intention of contributing to consolidation and growth. However, it is up to the government to follow through on, and commit to this plan and end goal.
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