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Reconciliation after Atrocity : Transitional Justice in Africa By Kristen Collins A Thesis NEW COLLEGE OF FLORI DA IN PARTIAL FULFILLME NT OF THE REQUIREMEN TS FOR THE DEGREE BACHELOR OF ARTS UNDER THE SPONSORSHI P OF DR. BARBARA HICKS SARAS OTA, FLORIDA APRIL 2011
ii Table of Contents Acknowledgments --------------------------------------------------------------------iv List of Tables and Maps ---------------------------------------------------------------v Acronym List -----------------------------------------------------------------------v i Abstract ------------------------------------------------------------------------------------vii i Introduction -------------------------------------------------------------------------1 Chapter 1: The South African Truth and Reconciliation Commissions and D emocrati z a tion -----------------------------------------------------------------------9 Historical Background ------------------------------------------------------12 Democratization Process --------------------------------------------------1 4 Establishment of the Truth and R econciliation Commissions ----1 6 Truth and Reconciliation Commissions --------------------------------21 Amnesty and Investigations -------------------------------------------24 Compensation of Victims ------------------------------------------------2 7 After the Truth Commissions -------------------------------------------35 Chapter 2: The Int ernational Criminal Tribunal and National Reconciliation ------40 Historical Background ------------------------------------------------------43 International Intervention ------------------------------------------------46 Controversie s over International Involv ement ----------------------50 At Odds: The Rwandan Government an d the ICTR ------------------52 Location and Punishment ------------------------------------------------56 Lack of Funding and Lack of Capacity ---------------------------------59 Nationalized and Local Courts --------------------------------------------61 Bringing it all Together -----------------------------------------------------63 Chapter 3: with t he International Criminal Court --66 The ICC Negotiating Sovereignty and Justice -------------------------69 Deciding Whether to Join the ICC ---------------------------------------71 Methods ----------------------------------------------------------------------85
iii Empirical Results -----------------------------------------------------------89 Interpretation -------------------------------------------------------------105 What it Means ------------------------------------------------------------109 Chapter 4: Conclusion ---------------------------------------------------------------------------1 12 Democracy and International Intervention ------------------------11 3 Regime Transition and Suc cess or Failure of Transitional Justice ----------------------------------------------------117 Peace through Justice ------------------------------------------------------121 What was Learned -------------------------------------------------------122 Bibliography ------------------------------------------------------------------------124
iv Acknowledgements T he process of writing a thesis has been the most challenging academic tasks I have completed thus far. First and foremost I would like to acknowledge Professor Ba rb a ra Hicks for the many hours and support she gave me throughout the year. Without her strong dedication as a professor and as a teacher I might not have been able to complete the thesis. She pushed me academically more than I have ever been pushed before. Also, I would like to thank my parents for being my biggest supp orters. Without their constant reassurance, love, and emotional support I may not have made it all four years at New College. They are and always will be my biggest cheerleaders I would like to acknowledge my brother Ryan for challenging me to be th e best I can be in every a spect of my life. Furthermore, I would like to thank my friends for keeping me sane and giving me different perspectives throughout my four years here. Lastly, I would like to recognize Sydney for his ability to keep me in check, even in the final days of the writing process. The times when I was about to call it quits, he would give me the reassurance I needed to continue.
v List of Maps and Tables Map 3.1 African States by Membership in the ICC -------------------------100 Table 3.1 Hypotheses and S ignificance --------------------------------------106
vi Acronym List ANC --------------------------------------------------African National Co n gress CPA ----------------------------------------Comprehensive Peace Agre e ment CPPCG --------------United Nations Convention on the Prevention and Punis h ment of the Crime of Genocide DRC ---------------------------------------The Democratic Republic of Co n go GNU -------------------------------------------Governance of National Un i ty HRV --------------------------------Committee on Human Rights Violations ICC ------------------------------------------------International Criminal Court ICTR ----------------------The International Criminal Tribuna l in Rwa n da ICTY --------------------The International Criminal Tribunal in Yugosl a via IDASA -------------------------The Institute for Democracy in South Africa IFP -------------------------------------------------------Inkatha Freedom Party LRA -----------------------------------------------------r my MRND -----------National Revolutionary Movement for Develo p ment NGO ---------------------------------------Non Governmental Organiz a tion NP ------------------------------------------------------------The National Pa r ty RPA ----------------------------------------------------Rwandan Patriotic A r my RPF ----------------------------------------------------Rwandan Patriotic Front
vii RTLMC ----------------------------Radio Tel e vision Libre de Mille Coll i nes SIRPI --------The Stockholm International Research for Peace Inst i tute SPLA ------------------------------------------Sudan Peoples Liberation Army TRC ----------The South African Truth and Reconciliation Commi s sion UDHR -------------------------------Universal Declaration of Human Rights UN ------------------------------------------------------------------United Nations UNOMSA -------------United Nations Observer Mission in South Afr i ca
viii Reconciliation after Atrocity: Transitional Justice in Africa Kristen Collins New College of Florida, 2011 Abstract many democratic and post conflict transitioning countries. During times of conflict and transition from authoritarian rule, many serious crimes are left unpunished. Transitiona l justice mechanisms are then often set up to end impunity and promote reconciliation. This thesis examines three transitional justice mechanisms in Africa. The first is the South African Truth and Reconciliation C ommission to investigate crimes under apar theid, which is seen as a rather su c cessful case of transitional justice. The second, the International Criminal Tribunal in Rwanda, seeks to punish leaders of the 1994 Rwandan Genocide, but has been consi d ered inadequate. The third study examines the Intern an ship with Africa. All current cases in the ICC concern crimes committed in Africa; yet, o n ly 31 of the 54 states in Africa have signed the Rome Statute governing the ICC. Nine possible explanations are tested for why countries have or have not signed the statute. The three cases provide insight into the effectiveness of different transitional justice mechanisms. Dr. Barbara Hicks Division of Social Sciences
1 Introduction W ithout a proper engagement with the past and the institutionalization of remembrance, societies are condemned to repeat, reenact, and relive the horror. Forgetting is not a good strategy for societies transiting to a minimally decent condition. (Bhargava 2 000, 54) Africa is one of the most conflict ridden continents in the world, the home to some of the largest civil conflicts and genocides in history. I n 1997 2006, 14 major armed conflicts were recorded in Africa (Harbom and Wallensteen 2006, 80). With co nfl ict, the likelihood of serious crimes and major hum an rights violations increases. Widespread criminality and destruction of particular groups through genocide in turn, create long term negative effects for the state and citizens. Unfortunately, many countries in Africa do not have the capacity and infrastructure to prosecute and punish those responsible for such horrible crimes. If those violations are not addressed fairly, there can be grave consequences and civil unrest. Unpunished and unaccounted for crimes continue if there is no mechanism to stop them from happening again. The government then cannot fulfill basic functions such a s protecting citizens and creating a rule of law, and victims never receive closure o r compensation, which can leave de ep divides in society. Accountability for crimes is the first step in bringing justice to vict ims and creating a precedent to deter others from committing similar crimes The same problems can arise if war crimes go unpunished. Unlike civil conflict and d omestic crimes, which have not really been prosecuted or punished on the
2 international level until recently, prosecution of war crimes is seen throughout history. Evidence of punishment for war crimes exists as far back in history as in ancient Greece ; in more modern history, the N remberg Trials prosecute d leaders of the Nazi regime and those responsible for the Holocaust. Punishment for crimes is nece s sary not just to bring justice to criminals, but also to help deter others from committing crimes. Int ernational war crimes have been dealt with through the international co mm unity. Domestic crimes, on the other hand, ideally should be dealt with on a national level. Unfortunately, with civil unrest and lack of governmental structure and stability in many cases, it has been impossible for many countries to deal with domestic perpetrators. In order for those crimes to be punished and to help countries transition into a more peaceful era, both new governments and the international community have focused on se tting up special mechanisms of transitional justice There is not one single approach to transitional justice. The relatively new nature of the field means that it is not always clear what transitional justice mechanism will be most effective. The current mechanisms used are still not perfected and are being tested on countries that have no alternative. With the emergence of globalization and the widespread use of the internet that makes exchange of knowledge and ideas faster than ever before, the world is becoming more transnational in the sense that countries are more concerned and connected internationally. Where once involvement of the international community in domestic matters would be considered unnecessary and unacceptable, international intervention and legal norms are more widely accepted in the globalizing world. More acceptance of
3 such norms allows for institutions like the I nternational C riminal C ourt (ICC) to exist and for international engagement in transitional justice mechanisms. Consensus o n the necessity for accountability is clear, but how to approach accountability in a suitable way for a country is debated. The N remberg Trials set the precedent for transitional justice today when the three major wartime powers the United Kingdom, The U nited States, and the Soviet Union agreed on how to punish the criminals (France joined the tribunal later) Countries around the world recognized the need for punishment of the criminals in order to move on from an atrocity. In the modern era, the N rem berg trials are seen as the beginning of transitional justice and as setting the stage for future mechanisms. However, transitional justice does not have to occur only after a war. Sometimes such mechanisms are set up during or after a regime change, as in South Africa a t the end of apartheid. This portfolio examines three transitional justice mechanisms dealing strictly with African Cases. The first case analyzes the South African Truth and Reconciliation Commission (TRC) after the transition away from ap artheid to a more democratically run system. Truth commissions attempt to uncover the truth about previous atrocities; in the case of South Africa, the focus was the truth about the crimes that took place under the apartheid regime. Commissions are general ly considered to be a successful mechanism for reconciling individuals and healing society as a whole. Accountability for actions occurs outside of the courts by exposing the wrongdoings of the perpetrators. By acknowledging and exposing the crimes and the criminals, a truth commission condemns the violence in hopes of moving on to a more peaceful future. The South
4 African TRC was convened and supported by the newly democratic National Party regime. The TRC is mostly thought to have been successful in expos ing the crimes and the criminals behind them (Gibson and Caldeira 2003, 24). However, it was not entirely successful. One of the biggest controversies over the TRC was the use of amnesty in the process. A m nesty was only given to 849 out of over seven thous and applications, and there were strict guidelines as to who would be allowed to receive amnesty (Gibson 2002, 542). The other controversy of the TRC concerns the reparations given to victims after the co m t fully follow through with the guidelines the TRC set forth for how to compensate the victims from the previous regime. In current South Africa racism is still prevalent in society and political crimes still exist. Nonetheless, the TR C was a fairly successful case of a transitional justice mechanism even with these issues and the resilient racism. generally considered to be a successful form of transitional ju stice. Undoubtedly, the TRC had weaknesses but overall it achieved the goal of recognizing previous atrocities and acknowledging the need to reconcile them. Out of the three types of mechanisms studied in the portfolio, the TRC is the only transitional jus tice mechanism that has been completed. The International Criminal Tribunal in Rwanda (ICTR) is still finishing work, and the ICC is still actively hearing cases because it is a permanent institution. Also unlike the other two cases, the TRC was carried ou t through domestic m eans. The TRC had support from the international community but was not governed by it in the same
5 way as the ICTR and the ICC, both of which have been established and actualized through international means. The second c ase study examin es the work of the International Criminal Tribunal in Rwanda (ICTR) following the 1994 Rwandan genocide. The ICTR was modeled after the International Criminal Tribunal in Yugoslavia (ICTY), which is considered somewhat successful. Unlike the TRC, the ICTR was formed under the constraints of the international community. The General Assembly of the UN was hopeful that the ICTR would produce similar outcomes to the ICTY. Unfortunately, that is not the case. As opposed to the TRC, which was a generally well acc epted mechanism of transitional justice, and the I C C, where the success has yet to be determined, the ICTR is generally not considered to be an effective form of reconciliation and transitional justice. The second chapter examines why the ICTR has not been as successful in deterr ing violence and creating national reconciliation. In particular, the role of the international from the experience of the South African TRC. The I CTR did not help the Rwandan government democratize more fully or help alleviate some of the divisions in the country. I f a n y t h i n g the ICTR created more chaos within the political structure of the country with the arguments and debate over prop er punishment and over responsibility of local courts. The ICTR can be considered a transitional justice mechanism because trials are the most basic form of punishment for criminals. Punishment through a court system is seen in most countries with a rule o f law; however, relinquishing to the international
6 community authority over the national courts is a new and controversial practice. The Rwandan government had no choice but to comply with international law, because the ICTR had jurisdiction over national and local courts. The prospect of an international court having jurisdiction over a national court was the precursor to the rules of the ICC. The establishment and failings of the ICTR were also taken into consideration with the establishment of the ICC. Th e third chapter considers the ICC and its relationship with Africa. Trials are the most emblematic form of transitional justice, using the rule of law to bring accountability to criminals. In order for the ICC to exercise jurisdiction over a state, a st ate must become a member of the Assembly of States Parties of the ICC. Although cooperation from states is a necessity for the ICC to prosecute criminals, the ICC is a strictly international institution in that it is not under any national authority. The I relationship with Africa is examined because every single case curren t ly being trie d in the court comes from Africa. As opposed to the TRC and the ICTR, the ICC is not only used in one country. The lack of capacity by domestic systems to punish crimin als of horrendous crimes, mostly from conflict, has created a need for international tribunals. Of all continents in the world, Af rica has the largest number of States P arties to the Rome Statute of the ICC, the treaty that created the ICC as a permanent i nstitution and gave it the power to exercise jurisdiction over persons for the most serious crimes of international concern. Jurisdiction and functioning of the court is governed by the Statute, and the countries that have si gned the Statute and become a S tate P arty are obligated to comply with the demands of the court.
7 Even with the high amount of support for the ICC from African countries, not all African nations have signed the Rome Statute to become a S tate P arty. As of January 2011, only 31 out of the 54 countries in Africa were S tates P arties of the ICC. This paper examines several possible explanations for why countries have not signed the Rome Statute by checking for correlations between those factors and the decision to sign or not sign. The ICC is used in the portfolio project because it is the only fully international court system in the world, 1 and court systems are the standard for punishing criminals in democratic countries, especially in western democracies. Unlike other transitional justice me chanisms, the ICC holds every country that is a State P arty to the same standard and obligates them to uphold the demands of the court. In other transitional justice mech a nisms, the standards of justice are individualized by case. Applying a court system structure to countries that are trying to punish even though it may not have the means to do so domestically. The compliance of most African countries with the ICC exempl if ies the desire of most African countries for an international court system. The effectiveness of the ICC in bringing accountability is still to be determined, but the desire to have such a body is certainly there. The three studie s present different appro aches to transitional justice wi th different goals and outcomes; they are all in essence experimental. The field of transitional justice is a new field without a complete success story to tell. These three cases provide notably different approaches to tran sitional justice but also different 1 The Court of Justice of the European U nion and the European Court of H uman Rights are also supranational courts, but jurisdiction is restricted to Europe. The International Court of Justice, an organ of the UN, settles legal disputes among states and offers advisory opinions to UN agencies.
8 levels of efficacy. The TRC is complete and was successful in reconciling the past, but was unsuccessful in alleviating racial tensions and really transforming society. The ICTR remains incomplete; whether or not reco nci liation is being achieved is questionable being deliberated and hopefully they will one day be considered successful. However, the pace at which the ICC is working is s low, and the positive effects of bringing accountability to perpetrators will not be seen for some time. By looking at three different examples of how transitional justice has been pursued in post conflict countries in Africa, we can see what was wrong wi th previous attempts and possible changes to improve them for future endeavors. Hopefully, as we learn over more attempts at reconciling the past through such mechanisms there will one day be way s not only to truly reconcile the past and bring accountability to perpetrators through the help of international intervention but also to deter such crimes
9 Chapter 1: The South Africa n Truth and Reconciliation Commissions a nd Democratization Introduction The transition period from a conflicted society to peace ca n be a difficult time, not only for the citizens, but for the government as well. Especially in countries coming out of intra state conflict, the tensions among citizens and government officials can be deeply rooted and complex. During the process of a dem ocratic and post conflict transition, a government must answer fundamental questions in order to reach a consolidated democracy and these questions Some of the questions an interim and new government must ask include how the government will be run the ty pe of party system, who and what parties will have what powers, and how the rule of law will be implemented Throughout academic literature democracy is generally accepted to be the most conducive regime type for peace. In order to democratize in ways that promote peace the country has to deal with its past. Although issues of justice are addressed by regimes worldwide, those dealing with transitions from an autocratic rule to a democratic one are faced with the challenge of past injustices. Transitions from authoritarian to democratic rule are characterized by a high degree of uncertainty. In many cases e lites contend for power influence, and control over the democratic values and policy making procedures. In a trocities
10 committed during the previous r egime cannot simply be let go or forgotten while pursuing a peaceful democracy. One of the biggest issues in democratic transitions has been how and when to deal with gross human rights violations committed by the outgoing authoritarian regime. Sometimes, current actors agree not to open these issues immediately following a transition, they get addressed later. In some countries and certain situations, the government may choose to not address previous atrocities. By not addressing issues, reconciliation may never happen. In South Africa the incoming government wanted to address previous atrocities committed by the previous regime The intensity of the human rights issue depends on several factors, including the scope and nature of the abuses, who the target ed victims were, and how well their interests are represented organizationally. More important than the absolute numbers of victims is the type of response that those violations provoke. Human rights violations tend to mobilize different sectors of society with strong conflicting interests to which the demands may have a significant impact on political stability, the process of democrati zation, and national reconciliation. The prefe rences of the outgoing regime, the public, and t he democratic government will vary because of conflicted interests (Skaar 1999, 1111). There are four possible ways to deal with previous crimes under an old regime. The new regime ca n have trials, grant amn esty, d elay, or d o nothing. The most problematic appro a ch would be to do nothing. Delaying a response or doing nothing takes the risk of never dealing with the past. Some regimes cho o se this option, but
11 without addressing previous grievances, national reco nciliation is difficult De laying the process only prolong s national reconciliatio n, and doing nothing is acting a s if the past never happened. Covering up the past does not help anyone, and open s the door to possible back stepping into a repressive regim e. South Africa chose to grant amnesty to so me people who had committed crimes prior to the peace negotiations This solution works well in some respects, but also can have many problems and leave some citizens unsatisfied with the results and what is thou ght to be lack of justice in the new system. South Africa is attempt ing to reconcile the past throug h particular amnesty conditions made possible through the help o f the Truth and Reconciliation Commission (TRC). Considering the failures of several transit ional justice mechanisms t he Truth and Reconciliation Commission (TRC) in South Africa is generally thought to be one of the most successful cases of transformations with its transition from apartheid to democracy (Gibson 2003, 24) The reason it i s consi dered success ful is because of the major contribution the TRC made to the democratization process in South Africa and the estab lishment of a court system disassociated from the apartheid regime. The TRC was an integral part of democratization because it he lped establish some key foundations of democracy including the development of the rule of law. Furthermore it provided legitimacy to the new regime by break ing ties with past and i ncreas ing South Africa diplomatic ties with the international community If the TRC had not been implemented in South Africa, the potential for successful democratization would have been doubtful However, it is important to recognize that South Africa is not a fully consolidated democracy and the TRC was not flawless In fac t, the use of amnesty and issues with
12 reparations could actually be detrimental to the democratization process. The democratic ideals laid out in the transition period and in the TRC have not fully penetrated society. Part of this failure comes from shortc omings in implementing the transition from apart heid to a new and more democratic system. Historical Background R acial segregation and political repression under the ap artheid regime remains one of the most deb ated and discussed topics in transitional justice literature However, it was not just the l egal segregation that made apartheid such a controversial case ; political disenfranchisement and repression by the state w ith countless violations of human rights norms were also extensive The majority of the crimes committed under the apartheid regime happened between 1948 and 1990 Human rights violations by the regime included: depriv ing millions of South Africans of citi zenry and arresting and imprisoning millions and prohibiting movement throughout the state with the use of these papers People were forcibly relocated in order to achieve territorial and residential segrega tion. Citizens were opposing apartheid Detained peoples were interrogated and put in solitary confinement, which was acceptable under the law. The entire population of S outh Africa was classified a l ong racial lines and divided Laws prohibited social mixing, sexual relations, and marriage between two different groups. P eople
13 citizens were given inferior education, health care, social welfare benefits, and housing. The officers of the apartheid regime many times acted outside the law but were not p r o secuted or charged w ith anything. T here was even tacit support from the leaders for the police force to act outside of the law ( Hamber 1999 ) Detainees were physically and mentally tortured by security law enforcement while auth orities stood by and remained silent but allowed for the unsupervised interrogation and solitary confinement for months and sometimes years at a time. It was not unusual for political activis ts to disappear after an arrest. Some political activists such as Steve Biko and Mathew Goniwe were killed under the authority of commanders by members of the security forces (Dugard 1997, 271). In the last years of ap artheid many people linked to the African National Congress (ANC) were killed because of these ties and the threat they posed to the National Party (NP) In these cases the common crim es of murder, homicide, a ssault, and kidnapping all applied and could be pinned upon the apartheid regime. Given that the crimes were supported by the authorities and leaders, the prosecutions for these crimes were never going to happen. T he crimes and the injustices of the apartheid regime were known throughout the world In 1948 the year the National Party (NP), the party responsible for a partheid, came int o power this was the same year in which the Universal Declaration of Human Rights (UDHR) was adopted. At this time, only four African states were members of the United Nations (UN). South Africa was one of those four countries. South Africa involvement in the UN implied adherence to and implement ation of the UDHR
14 guidel ines into their domestic agenda. O bviously this never happened. In response to the continuation of apartheid and the international community (including the UN and major players in the international realm such as the Unites States) taking n otice of the abuses in South Africa the UN General Assembly of 1963 condemned a partheid as criminal The classifi cation was extended beyond criminality and was labeled as a type of crime against humanity and violence in International Law by the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid By the end of the racist regime i n 1990, eighty nine states had ratified the agreement (Dugard 1997, 271). Democratization Process By 1990, the formal start of the negotiating process that eventually led to the end of the apartheid regime, c losed door discussions between the ANC and NP were already underway. Although the government people holding discussions with the ANC as being traitors or disloyal, it is clear that negotiations were in fact negotiations already happening prior to the public acknowledgeme nt of the cooperation (Bouckaert 2000, 243). Many fa ctors contributed to t he NP to start peace negotiations with the ANC. The timing was crucial, the negotiation started around t he same time the Soviet Union collapsed The end of the Cold War brought about a new era for South Africa and the regime continued to lose its already weak support from western powers Left with little and becoming more isolated from the western world, South Africa succumbed to the pressures of external power and t he ANC and N P ent er ed into negotiations.
15 The time period between 1990 and 1994 was tumultuous with different events and shifts in power on a daily basis. The ANC was not always ahead of the game and assured power. They had a lot of opposition from different political gro ups such as the Inkatha Freedom Party (IFP). The tensions between the ANC and the IFP erupted into an all out war in Kwazulu Natal and the townships surrounding Johannesburg. Much of the violence during this time was linked back to the N P During the trans ition, NP trained and discredit the ANC ( Bouckaert 2000, 246 ) The ANC wanted a quick change of power and preferred to leave guidelines vague so that the decisions would be made by the future democratically elec ted government in which it would likely be the majority power. T he NP tried to c ontrol the democratization process by including a large number of often overlapping pro government p arties at the negotiation table. The NP knew t hat by adding more groups to the negotiation process it would secure their representation in the government. Ultimately, the NP would settle for nothing less than a p ower sharing form of governance. When the 1993 interim constitution was constructed it s et up a directly elected National Assembly and an indirectly elected Senate. The interim constitution was distinguished by Governance of National U nity (GNU), meaning that any political party that received at least 20 percent of votes would be entitled to a deputy presidency (Maphai 1996, 68). The first year following the fi rst fully democratic elections in April 1 994, the power sharing that coincides with the GNU process was working relatively well. However, in 1996 the NP dropped out of the GNU leaving th e ANC to run a
16 dominant party system. The problem with such dominant party reg imes is that they disperse power, more readiness to question the very legitimacy of opposition, and a stronger tendency to abuse state patr onage than does a ruling party in a system where the reins of government change hands periodically (Giliomee 1998, 128) ominant party regime s become more concerned with ensuring a win in elections than ensuring the ins titutional and legal safeguards nec essary for an honest c onsolidated democracy (Giliomee 1998, 128 ). The government, like any transitioning country, was a under a great deal of stress and the slightest issue could have potentially derailed the country from the democratization goal Altho ug h, the government did have some external in volvement e.g. through the United Nations Observer Mi ssion in South Africa (UNOMSA) direct intervention into politics did not happen. The UNOMSA intended to observe and en sure peace without intervening. The same c an be said for the TRC, there was not much international interference. South Africa was stable enough to impl ement democratic ideals on its own. Although South Africa wanted the backing of western countries (especially with finances) they wanted to show t he world that they could in fact take care of their own country without direct intervention into domestic politics Establishment of the Truth and Reconciliation Commissions The place where international in volvement was needed and accepted to help with t he democratization process was with the establishment of the Truth and Reconciliation Commissions (TRC). ac quired substantial trust and diplomacy from all parties in the power sharing process. Judges
17 were even p art of the drafting and certifying of the constitution (Widener 2001, 73 ) I nvolving judges in the constitution building process it could help stabilize a potentially volatile situation Also, the trust from the several parties in the judiciary allowed fo r the actors to ensure that the draft constitution conformed to the principles that peace negotiators had wanted. The establishment of the rule of law in a transition is one of the most fundamental elements to a new democracy. South Africa took many of th e proper steps to establish the rule of law and ensure t hat it would not falter due to a weak infrastructure and post conflict issues like dealing with the past Not to say that the system was flawless, but at least strong enough to deal with the workload. Stability is essential when developing transitional justice programs like a truth commission. South Africa was capable and stable enough to carry out the TRC on its own. Unfortunately, most countries where transitional justice programs are being implement ed are not as stable as South Africa was. If a transitioning country is fairly stable it will require less international intervention. The outcome of a program is largely contingent upon the stability and democratic consolidation of the country while imple menting a project South Africa already established a judicial process prior to the TRC. While there was a need to assure the abolition of apartheid laws and extend the rule of law to everyone there was minimally a foundation to work upon Breaking away f rom the past is easier than developing a democratic constitution. Although South Africa was one of the first countries to use a TRC model they wanted to make it different from other truth commissions. In 1994 two major con ferences in Cape Town were spon sored by the Institute for Democracy in South Africa
18 (IDASA) and its Justice in Transition Project. D elegates from Chile, Argentina, and eastern and central Europe shared their countries struggles over the question of how to treat former enemies and oppre ssors with representatives f rom South Africa (Graybill 2002, 2). The TRC was different from other truth commissions in that those are mostly ordered and shaped by executive decree whereas the TRC was formed by the representative parliaments. The TRC was t hus formed by more democratic processes than other truth commissions The elections and democratic values that the TRC embedded into their process were necessary to legitimize the democratic transition and show the desire to truly democratize Prior to the development of the TRC, amnesty had already been agreed upon in the interim constitution, the procedure of how amnesty was granted was another question. The particularized amnesty that the TRC's founding statute prescribed not only serves reconciliation, but also justice (Dyzenhaus 1999, 311) It was not until July 19, 1995 that the Promotion of National Unity and Reconciliation Act was signed by President Nelson Mandela (Graybill 2002, 3) The Promotion of National Unity and Reconciliation Act was the fir st example of a democratic ally elected truth commission. However, some critics argue that the process of signing the TRC bill shows more political compromise than the actu al will of the people (Graybill 2002, 3). N ot surprising ly, South Africa ch ose to use the TRC to deal with grievances against the previous apartheid regime. The NP was still very much involved in the political realm during the transition, sharing power in the GNU South Africa is one of the first countri es in the world that have used truth commissions in a way where they
19 encouraged public debate and input on the goals and makeup and procedures of the truth commissions. Because South Africa had an elite initiated transition, t he NP, the outgoing and responsible regime, was in a position to d ictate the terms of its departure from power by insisting on amnesty laws (Skaar 1999, 1117 ) Following a moderate approach to transitional justice those countries using commissions do not believe that a country has a moral or legal duty to hold trials. I nstead they emphasize the duty to hold the authoritarian regime accountable and to restore the dignity of victims and survivors (Olsen, Payne and Reiter 2010, 22) Due to the complexity of the transition and large negotiations that took place in the develo pment of the tr uth commissions it provide d a middle ground between full trials and blanket amnesties Especially with the large number of compromises and concessions made by both the ANC and the NP a truth commissions wa s the most appropriate fit. The e ntire notion of amnesty in the TRC was largely an outcome of compromises between the ANC and the NP during the transition period from 1990 1993. The public exposure and condemnation of the perpetrators is one of the ways in which commissions allow justice without the costly expense of a trial. Trials are notoriously expensive and the wide reach of apartheid abuses, a less co stly option w as ideal. Advocates of truth commissions argue that the commission acknowledges condemn s and deter s violence more effec tively than trials, and they do so without jeopardizing democracy and the rule of law ( Rigby 2001, 8 ) In such a politically fragile state, if South Africa had chosen trials or blanket amnesty, there would have undoubtedly been backlash and a disruption t o the democratization process South
20 Africa had already built up a rule of law, even though it needed to be extended to all citizens; more interference by the international community would have undermined the success and established work of the judicial sy stem. The TRC allowed the international community to help, but ultimately the decisions made were up to the South African government. After the TRC was agreed upon, only fifteen months after the first democratically run elections, the search for commissio ners started almost immediately. The legislation calle d for seventeen commissioners, t o include men and women of high character who were highly regarde d in the community. T he process of selection came from nominees being suggested by NGO s, churches, and pa rties and interviewed in public by a selection panel w ith the president and cabinet choosing from a short list (Graybill 2002, 3) T he process of choosing the commissioners came from the desire to show transparency and democratic values without internation al intervention. Although, t he commissioners were ultimately chosen by Nelson Mandela himself Mandela l a ter revealed that h e had not personally favored all the commissioners but had appointed them in the interest of national unity (Wing 2000, 256; Graybil l 2002, 4) The goals of the TRC that were spelled out in the Promotion of National Unity and Reconciliation Act were to took place in and came through the conflicts of the past; to restore to victims their human and civil dignity by letting them tell their stories and recommending how they could be assisted; and to consider granting amnesty to those perpetrators who carried out their abuses for political reasons and who gave full acc ountings of their actions to the commission ( Graybill 2002, 6)
21 In order to achieve these goals three committees were set up: the C ommittee on Human Rights Violations (HRV), the Committee on Amnesty, and the Reparations and Rehabilitation Committee. Ini tially fifteen of the seventeen commissioners along with three judges were split up between the HRV and the Reparati on and Rehabilitation Committee. The HRV worked closely with the victims of the crimes in order to determine whether human rights violatio ns had actually been committed. The Committee on Amnesty did not work with the HRV or Reparations committee. In fact they were independent from th e other groups. Initially, the Amnesty C ommittee was comprised of five members, but due to the heavy workload, that number was increased to thirteen then nineteen. I n 1996, the focus of the TRC was on the work of the HRV committee, but with the increasing number of amnesty applications, the focus of the TRC moved away from the victims to the perpetrators. The Re parations and Rehabilitatio n Committee was responsib le for deciding how each victim should be compensated and made its recommendations to the government When the recommendations on reparations were finalized they were sent to the South African government to be voted on by the President and Parliament. Once the President and Parliament agreed upon the recommendations, the was responsible for carrying out the proposals to the victims Truth and Reconciliation Commissions The TRC c ame to its conclusion in 2003, but we are still learning from it and applying it to c urrent conflicts and transitioning regimes (Nagy 2004, 638) The South
22 African model displays a very interesting and for the most part a considerably successful case of truth commissions Neverthe less, it was not perfect. Although no bl anket amnesty was given to perpetrators, m any people in South Africa and across the globe found the practice of granting amnesty at all to be too lenient and it failed to provide true justice to the victims. As John Borneman learned through his study of t he failure to seek retributive justice leads to cycles of violence and counte r 2002, 58). Amnesty may seem to be the direct opposite of justice for many people, especially victims of those who were granted amne sty. Amnesty is not widely accepted to be the best solution at times to subdue conflict and com e to a peaceful resolution. A mnesty cannot be considered without some sort of justice as well. Justice still needs to be served. Justice does not necessarily nee d to be in the form of an execution or prison time, but granting amnesty can provide unrequited expectati ons of justice. In the case of South Africa, the ANC allowed amnesty to achieve peace and to secure a majority of power within the government (Gibson 2 002, 541 ). In order to have the majority power, the ANC could not prosecute the NP for their crimes. The NP still had some authority and by compromising on Amnesty, the ANC gained power. Although this opened the door to a much needed change in government and peace, how could the rulers of apartheid atrocities go without any punishment whatso ever? Herein is where the issue lies. People want peace, but at what costs? By gra nting amnesty to people who have committed such grave crimes, it seems as if their dep lorable deeds go excused. To many it is an unfair policy, but it can also be a necessity in providing more leverage with
23 perpetrators for negotiations to provide a more stable and conflict free future. It may also avoid the dangers of injustice through ven geance or rushed procedures. In order to understand the different attitudes towards amnesty it is important to understand the reasoning behind it. Justice would need to be served at some level or some point in time or social unrest may rise again. The in terim constitution in South Africa recognized the necessity of dealing with past issues before they could fully move on to a consolidated democracy : a need for reparation but not retaliation, a need for u buntu but not victimization (Leebaw 2003, 25) Ubuntu means a type of humanness or the expression that people are people through other people (Gibson 2002, 543) Ubuntu takes the idea of a more restorative approach to criminals than a retributive one. I mplementing Ubuntu ideals into the rhetoric into the interim constitution was not a surprising addition; they coincide with the willingness of citizens to forgive and move on South Africa is also a predominantly Christian country, and the forgiveness that i s so highly emphasized in the re li gion extends to the daily life. Christian discourse i s one of the major reasons and explanations for South African citizens accepting amnesty and desiring forgiveness ( Wilson 2000, 78) The ANC, N P, and judges from the previous regime work ed together on the interim constitution relies on the tools of mediation and dialogue to generate spaces for expressions of approbation, remorse, and pardon, and aspires to address the underlying causes of conflict Leebaw 2003, 28). Coming to terms with past was written int o the constitution for a reason: people needed justice for what th ey had
24 been subject to under apartheid rule and the past needs to be recognized as unacceptable Even though citizens were gener ally accepting of amnesty laws, the c itizens still require justice to be served. In order for the amnesty to be accepted responsibility needs to be assigned and recognized and it requires an under standing that retribution is not an option and must be give n in one way or another. Amnesty and Investigations Many theorists are compl etely skeptical of granting amnest y to criminals, especially leaders of previous regimes where criminality was widespread. The founders of the TRC wanted c ompensation for the se emingly unfair amnesty and in order to do that amnesty would need to be coupled with restrictions and conditions. People responsible for crimes would still need to face some sort of punishment Amnesty was not just handed out to any citizen who had commi tted a crime under aparthei d. There were stipulations that only certain people could be granted it. Dan Markel refers to this specific type of amnesty a grant of immunity from criminal and civil liability that is given only after a process of individualized encounter between perpetrator and state, where the perpetrator discloses fully his actions and admits responsibility for, and und erstanding of, what he has done (Markel 1999, 341). H aving applicants apply fo r amnesty shows that they take full responsibility for their actions, and by acknowledging that th ey have done something wrong it would in some respects show some level of remorse However, even with public acknowledgment of misdoings, there was no requir ement of a written apology in South Africa In fact, remorse for the action was not
25 considere d at all in the investigations. The parliament of the new order granted the TRC the authority to give amnesty to those motivated by political objectives alone. App licants that committed crimes under personal malice, ill will, or spite wer e not The amnesty wa s ultimately trying to decide if the act c ope of his or her duties and within t he scope of his or her express 2002, 63). G ranting amnesty to tho se who were following orders, was a break away from the precedent s et by N remberg Trials for transitional justice. Even if those criminals had merely been f ollowing orders they were not eligible for amnesty. The TRC broke away from that tradition and exempting those who had been following orders from prosecution. The ar gument behind this was that the people who were merely following orders did not have a say in their own actions. They were being obligated to follow orders through a duty not through personal malice. Not surprisingly, few senior officials, including politi cians and generals who were ultimately responsible for the crimes, applied for amnesty (Graybill 2002, 66) Moreover, many were still active in politics and would have to disclose details of their wrongs To ensure the legitimacy of the decisions for amnes ty, the TRC did checks into the motivatio ns behind the criminal behavior, mostly through victim statements. The checks and investigations that went into the amnesty process were crucial to the process of the commissions, but were also crucial for the South African government. Through the investigation, the truths about previous crimes were becoming clearer.
26 During apartheid, m any tim es the extent of the crimes was kept secret Also, the investigations process was disassociated from the South African govern ment in order to minimize corruption. Investigations into grants of amnesty provided a great example of investigations and how the process is done for a newly founded democracy. While determining whether or not an applicant would be considered the commit tee looked into the motivations behind the a cts. They wanted to know whether the behavior was committed in the execution of an order, issued by an organization, institut ion, a liberation movement or body of which the person who committed the act was a member, an agent or a supporter (Gibson 2002, 541). To contribute to the legitimacy and fairness of granting amnesty, there were strict guidelines as to who received it. T he TRC received approximately seven thousand applications to be granted amnesty (Nagy 2004, 638) However, as of November 2000, only 849 of those applications had been granted the amnesty (Gibson 2002, 542) Many onlookers from different nations and insti tutions sa w it as unacceptable to give amnesty to someone who had committed any crimes against humanity, regardless of the political or lack of political motivation. The most common reason for the applicants to be denied was what the TRC deemed there w as n o political motivation behind the act for which people sought amnesty S ome of the people, however, who were grant ed the amnesty were people involved in highly public cases (Gibson 2002, 542) Public opinion and international attention could have swayed th e decision on such cases. Regardless of those specific cases, the majority of the people who applied for the amnesty did not
27 receive it. O ver 20 ,000 victim statements from actual victim s and their families were submitted to the TRC during this time (Gibson 2002, 542) These statements also played a significant role in whether or not people were granted amnesty. They provided some of the background and the evidence for the motivations of the crimes that took place during apartheid. Compensation of Victims Even though the majority of the applications for amnesty were not granted, and there were strict guidelines on who would be eligible there was still controversy over whether or not people should b e granted it This controversy goes back to the justice fo r the victims what they want for the crimes that were committed against them, and how they felt towards people being granted amnesty. Distributive justice deals with the compensation that the victim or the family will receive for crimes that we re committed against them. The TRC designed their amnesty program to include what they thought as appropriate compensation for the victims. Indeed, they too thought it was a necessary component of granting amnesty. However, the TRC did not take the respons ibility of implementing the compensation. One of the reasons people were so against granting amnesty was because it would prohibit victims from obtaining reparations for the crime committed against them. Granting people amnesty takes away the victim s abil ity to file a civil lawsuit against the perpetrator, and thus the right to compensation (Markel 1999, 441) The TRC noted this issue and the necessity of giving retrib utions to the victim. The TRC's Final Report recognize d s essential to ( Gibson 2002, 542). Although they acknowledged the need for it,
28 they did not have the means to give all the compensation to the victims. The TRC gave recommendations to the South African government as to what the victims should receive i n reparations for their losses or their hardship (Markel 1999, 44) The problem with the TRC passing off the responsibility of reparations to the Sou th African government was that the TRC was more suitable than the government in carrying out the reparati ons. The TRC was more familiar with all the circumstances surrounding the vict ims and because there was a reparations commission, it seems like the TRC would have been responsible for carrying out the entirety of the compensations to victims. In the Promo tion of National Unity and Reconciliation Act, it is written that the TRC is only responsible for the recommendations to the government, not with the end result One of the ultimate goals of the TRC was to create reconciliation, and it seems counter produc tive to the process of resolution to pass the responsibility of reparations to another body. The problem s urrounding the reparations is an issue with the mandate of the TRC, not necessarily the commission or government. Unfortunately, the South African gov ernment has been subject to much criticism over this. It has failed to meet the recommendations of the TRC. In c ontrast to the TRC's suggestions on how to deal with the issue of reparations, the South Af rican government had over a five year delay in even a nnouncing a reparations policy (Nagy 2004, 646) Negative attitudes toward the amne sty policy in South Africa stem from the lack of follow through on the South African g overnment s end in compensating the victims. However, it was not just the citizens who were upset by the failure. T he T RC also expressed its disap pointment in the South African g overnment. In a follow up report
29 suffering of those found by the commission to be victims would be a particula r kind of cruelty (Nagy 2 004, 646). In order for the amnesty to be effective, the victims needed to be compensated. The truth and reconciliation process would be deemed as more just if both the justice and the grant of amnesty were dealt with appropriately and in a timely manner. For amnesty to be effective at least t wo groups need to be appeased By granting the amnesty the perpetrators group was taken care of, but the victims group was not. The TRC would be deemed as much more successful if it had taken on the responsibility of compensating victims as well. as established by the National Unity Act in 1995 was the source of funding used to compensate victims by the government and could h ave easily been used by the TRC In the Reparations Rehabilitation Polic y, the Act by Parliament establishes: T he Committee on Reparation and Rehabilitation must recommend to the President ways of assisting victims. It is the President and Parliament, and not this Committee, who will decide what to do and how to do it. The re commendations from the Committee will be in the Final Report sent to requires the President and the Ministers of Justice and Finance to assista nce will be paid from this Fund. (Reparation and Rehabilitation Policy 1995) The Reparations and Rehabilitation Policy has two stages in the process. The first was the interim reparations which were reparation made prior to th e government introduc ing the Final Reparation Measures. Interim Reparation is meant for people in urgent need of compensation because of the gross human rights violations they suffered The second is the Final Reparation Measure. The Final Reparation Measure is meant to compen sate victims after the recommendations have passed through the government.
30 Alongside the process of reparations eligibility of victims for reparations was also included in the Act. In order to be considered to receive reparations, the victim must have ma statement. Reparati on was given only to those formally declared victims by the Commission. The Commission decides i f someone is a victim by looking at all the information they have on th e gross human rights violation suffere d by that person. T he relatives and dependants of victims also qual ified for reparation s in certain circumstances (Reparation and Rehabilitation Policy 1995). Ultimately, the recommendations agreed upon by the governme nt were to include: 1 ) o nce off individual grants of R30,000 to victims ; 2 ) p rograms and projects to ensure formal records of history, and erecting symbols and monuments that exalt the freedom struggle ; 3 ) m edical and othe r forms of social assistance ; and 4 ) r eha bilitation As of 2010, 15,956 of the 16,837 victims approved for reparations have received the once off individual grant totaling R479 m 2010, 4). The Com missi on completed the majority of it s wor k on July 31, 1998, with only on going a mnesty hearings remaining at that point (TRC: The Facts 1998). Twelve years r repar a tions. The delay in people receiving compensation is the biggest problem with the reparations. Future truth commission efforts should include actual reparations of victims, n ot merely recommendations as to what a group should do. Or in the recommendations
31 they should ensure that the government is capable of administering the reparations. One of the biggest issues why the South African government did not follow the recommendations from the TRC was due to a lack of finances. The recommendations far exceeded their b udget allocated to the reparations funds In the transitioning period for a country, the ability to act independently is very important. However, the way the victims were dealt with after the commissions, left many feeling that the process was unjust. T he delay in reparations is extremely problematic and detrimental to a newly established democratic regime. I f victims are feeling that perpetrators have been let free, but yet they have received nothing in return, there is a likely chance that the country could fall back into civil unrest. The distrust and lack of support coming from the victims could gain support from others and turn into conflict and then more likelihood for a change in governance once again. Distributive justice is important in underst anding the grievances of many victims, but restorative justice is also an important aspect to the TRC's amnesty pr ogram. M any South Africans look at punishment in a more humane way viewing all people as connected to one another; in this view, related to t he ubuntu thought, a mistake one person makes is not only a part of the individualized human, but is connected to people and human kind in genera l A component to the restorative justice is the issuance of an apology. A significant literature shows the pos itive effects of an apology in the forgiveness and reconciliation process ( Allan, Allan, Kaminer, and Stein 2006, 87 ) Even though apologies are generally seen as a positive thing, the TRC did not include this step in its amnesty policy. It feared that an apology would not be seen as sincere or regretful
32 and may produce counterproduc tive repercussions to the peace building process. Also, the TRC made it very clear that it was not responsible as to whether or not the victims would forgive the perpetrators, and it made a clear distinction between granting amnesty and forgiveness (Markel, 1999, 403) Even with that distinction, however, the two are very closely related and hard to separate. It would have been very easy for the TRC to include a written apology as part of its amnesty program e specially since part of the background that was needed for the applicants to be granted amnesty in the first place was substantial evidence that the perpetrator s regretted their actions. I t was detrimental for the TRC to no t include an apology in the require ments. Future endeavors of countries in est ablishing truth commissions should consider written apologies to t he victims as a necessity. For something that should be easy to acquire, th e re is no reason to not obtain it fro m the people who we re grant ed a mnesty. Procedural justice is another import ant component of justice for victims of those who were granted amnesty by the TRC in South Africa. Procedural justice refers to victims sharing their stories with others, specific ally, their testimony in co urt. A llowing the victims to recount the atrocities to which they were subject ed, starts the heali ng process Recounting atrocities also contributes to learning and deterrence of such act s The TRC received over 20,000 victim sta tements, proving the willingness of the victims to speak out against their perpetrators. Not only wa s it beneficial to talk openly about the injustices of which one has been a victim but this process was also an outlet for people to see what happened to t heir loved ones and family members. The TRC receives high praise for help ing people uncover the mysteries of what has happened to families
33 and friends (Gibson 2005, 348) Like the other forms of justice this one wa s not perfect as well. Not all victims ha d the opportunity to relate their stories. Whether it be location, fear, or even the lack of trust that their testimony would amoun t to anything productive, many victims that never received the procedural justice that some did. This shortcoming could poten tially lead the victim to feel further isolation and ill feelings towards the success of the TRC program. If victim s did not gain social recognition for their losses, they may even lo se their right s to compensation because of the requirements for reparatio ns in the Act Another important aspect that needs to be considered while granting amnesty is the role of retributive justice. Retributive justice refers to a reaction to a bro ken rule or law by people that are disassociated from the actual crime. People do not have to be a victim of a crime to recognize the need for punishment, and this is exactly the thought from which retributive justice stems from. Historically, people must pay the punishment for their crime. What people deem as a proper punishment, h owever, is where things can become complicated. For some, amnesty takes away punishment of the perpetrator altogether For others though, the p rocess of even trying to obtain amnesty through the TRC was punishment enough because of the conditions and proc edure of being granted amnesty T o be granted amnesty at all one must have applied to the TRC. By applying to such a program, the perpetrator recognized that he or she had committed a crime and publicly acknowledged making a mistake and committing such atr ocities that included human rights violations. In the eyes of some, t o even come forth to admit being part of such crimes during the apartheid era was in itself punishment enough. To confess to
34 criminal behavior would ostracize you from society because of the stigma and racial prejudice that went along with the crimes (Gibson 2002, 544) Pu nishment often extended beyond merely a confession and the social stigm a that went along with the admission of the crime. Many of the perpetrators had to pay very high f ines as retribution for their behavior. Others were condemned by t heir friends and families, thus socially isolated (Tomaselli, Eke, and Davison 1997, 292 ) There are very mixed feelings about the punishment of the perpetrators during the apartheid time. N onetheless, if the victims saw the people who were granted amnesty as paying some sort of penalty, monetarily or socially, victims would most likely deem the TRC program the goal of developing a just society if it undermines the social cohesion that legal institutions depend upon others see it as the only necessary solution ( Leebaw 2003, 29). Obviously there are issues with both solutions and neither one nor the other encompasses the needs for both sides to feel satisfied enough to work towards a mutual peaceful agreement. Amnesty is a very touchy topic for people who are directly involved in the conflict or atrocities for which the perpetrator is being granted amnest y. The benefits of granting amnesty to a select group of people are obvious. To some, amnesty helps in the healing process and allows for victims to forgive people, and move on to a more peaceful future. Fear of prosecution is a deterrent for many people a nd soldiers to not apologize for their atrocities and grave crimes. With the hopes of being granted amnesty, more people publicly acknowledged their mistakes. The entire process of the TRC is like accepting an
35 apology in order to work collaboratively for a better future. From the other side it is understandable why victims or disassociated individuals would be upset for the seeming lack of justice. Amnesty is inherently seen to be u njust Luckily, even with people being granted amnesty there are other ways for the victims to receive justice through distributive, restorative, retributive, and procedural justice. If the Parliament had not required the TRC to subvert its tas k of compensating the victims to the South African government, the TRC would have probab ly been seen as a more successful venture. Even though on paper it was not the responsibility of the TRC to compensate the victims, the overall sentiments on the TRC's effectiveness would have been higher if they too would have been in charge of that as we ll. The South African government did not necessarily have the means to deal with the reparations. For future ventures of the TRC, they should recognize the necessity of not only granting amnesty to perpetrators, but also with compensating victims. After t he Truth Commissions T wa s to create solidarity and a collective identity with shared interests so that grievances and crimes wil l not happen again. Also, reconciliation fo r post conflict societies is a necessary component to the d emocratization process. Without shared interests and collective hopes to become a democracy, a democracy will never be fully consolidated. In order to achieve democracy there needs to be more tha n just elections, representation of different political parti es, and a judicial process The interests in civil society need to correspond with democratic ideals. If the reconciliation process never happens, or is not successful, the interests among civil society will be
36 fragmented and unable to consolidate. Dissent and plurality are necessary components to healthy democracy (Nagy 2002, 327). Nonethe less, deep hatred and lac k of trust in the government is different from dissent and plurality. In order for a healthy democracy to ensue there needs to be solidarity on m oral principles. Unfortunately, many South African citizens continue to live with a presence o f criminal police forces, the persistence of racism and social inequality, and the emotional tax of living in the same neighborhood with perpetrators The impact of citizens living their daily life with the constant reminders and presence of criminals from the apartheid regime undoubtedly hurt s the democratization process especially when they feel the process has not addressed the issue of justice adequately Th e legacy the South African government is trying to move away from is a difficult one. The government is attempting to recover from a violent segregated past to build national unity. As part of its transition, South Africa has embraced a democratic framewo rk under which a diverse range of people can be integrated. The South African Constitution contains a Bill of Rights that entrenches civil liberties, socio economic provisions to guarantee the enjoyment of rights, basic principles of human dignity and the protection of cultural, l inguistic and ethnic pluralism. T he constitutiona l f ramework protects diversity and dissent, while drawing South Africans together under a unitary agenda It also indicates that, in contrast to the past, the defens e and promotion of solidarity do es not legitimate all forms of public or state action. Unfortunately t he re has been continued use of torture in the South African criminal system (Nagy 2002, 330) The continuation of such human rights violations suggests that the habit of violating
37 human rights in the n ame of the public good or in the name of law and order, has survived apartheid. Inhumane torture when under the watch of security officials was one of the crimes that was so heatedly fought against and looked down upo n by th e international community and the opposition during apartheid. The fact that it is still happening today shows that the legacy holds sway and reveals that a democratic political culture has not yet penetrated society. The roots and the democratic agenda co rresponding with human rights norms are present but they are not necessarily being put into action. An additional possible example of backsliding into conflict can be seen with the high amount of violence in South Africa. Fifteen years after the first full y democratic elections, r eports continue of clear signs of the police shooting civilians who were not harming anyone (Fihlani 2 009) Although the South African government has vehemently denied any association with the police shootings, trigger happy polic e officers bring a sense of dj vu for some citizens who lived during the apartheid regime. Police officials say this is a response to the rise in violence Ho wever, a violent post conflict society is precisely the danger Borneman warned about when disc ussing amnesty. T he South African government continues to deny any involvement in police shooting and recognizes the need to subdue violence. Clearly the government intends to continue on its path to democratization even with some setbacks Unfortunately, continued violence and violations of rights by state officials show weakness i n achieving the overarching goal of T RC The reconciliation needed to truly transform society will require some moral transformation. The presen ce of a democratic
38 framework alon e is insufficient. The TRC's obvious commitment to democracy is undermined by its discourses on healing and forgiveness They unintentionally and comparatively moderate ly mimic the past by imposing all encompassing, thick narratives of national unity on th e victims of apartheid. T he process of building solidarity and national unity must ensure that the oppressed become subjects in the new history, and not the objects of any particular discourse on reconciliation. The process and the autonomy of the TRC to promote healing and forgiveness compromise d the founding of plura listic democracy because they were attempt to build solidarity through narratives that place inordinate pressure upon victims to transform themselves morally and psychologically In contrast, the democratic approach to reconciliation does not seek these sorts of transformations at the interpersonal level (Nagy 2002, 338). The South African government relied on the TRC to resolve the task of reconciliation. However, due to a lack of infrastruc ture and solidarity t he reconciliation process did not achieve the reconciliation and unity nee ded for the democratic process The TRC undoubtedly laid foundations for the newly democratic country. However, without further action by the South African gove rnment, both the democracy and reconciliation will be superficial and fragile. There will need to be a deepening of democratic, human rights and morality values in society. The apartheid regime used democratic processes such as elections and parliamentar its rule of law and governance. Obviously, it did not uphold democratic norms Unfortunately the past casts a shadow over South Africa, and the government must struggle to assure that processes such as elections are indeed
39 leg itimate. With human rights violations still happening and the prevalence of corruption within the government, South Africa still has a very long road ahead T he road to democratization is long especially because the reconciliation from the TRC is still inc omplete. The TRC undoubtedly uncovered the past, laid fundamental values and implemented procedural necessities f or a truly democratic transition. H owever, because of the prevalence of violence and lack of reparations granted to victims, the South Africa n government still faces fundamental challenges Although there is still a lon g road ahead, the TRC represented a necessary and progressive step in the process
40 Chapter 2: The I nternational C riminal T ribunal in R wanda and National Reconciliation Intro duction When is international intervention into a conflict necessary, what makes a situation so desperate that it requires intervention? It is one of the biggest questions states ask when making a decision to intervene. In certain cases, countries are fac ed with a moral obligation to intervene. Self interested states will sometimes put their preferences aside and recognize that intervention is necessary for world order to ensue. Once the majority of the genocide massacres had subsided in Rwanda, the intern ational community recognized that intervention was essential to help Rwandans rebuild. When discussion began on how to approach helping to stabilize and restructure the country, the International Tribunal in Yugoslavia (ICTY) had been established only 18 m onths prior to the formation of the ICTR and was considered to be working fairly well (Mose 2005, 920). The conflict that required international involvement in Yugoslavia was different because the war in Yugoslavia became an international conflict among di fferent states once secession had occurred. This nature of the conflict in Yugoslavia provided more reason to hold international trials. The Rwandan Genocide was an ethnically fueled civil war. Since 1994 the repercussions of the crisis have affected count ries bordering Rwanda; an exodus of refugees and rebel groups have created conflicts in surrounding
41 countries and have changed the civil conflict into somewhat of an interstate one. However, at the time of the conflict it was solely civil, and, the UN had to decide whether international intervention through a Tribunal would be the best solution. In order for a tribunal to be fully effective it needed to hold criminals accountable for their actions during the genocide create reconciliation with victims, help Rwanda out of its conflicted time, stabilize the country and ultimately create peace. The decision for the UN to intervene with the International Criminal Tribunal in Rwanda (ICTR) was made by the Security Council fairly rapidly after the recognition t hat genocide was taking place. After the violence of the genocide, Rwanda was in desperate need of help. The national court system was completely backed up with criminals awaiting trial, and the traditional Gacaca court systems were not being used and did not hold trials until 2002 (Longman 2009, 304). To help expedite and relieve some of the pressure on the Rwandan government, the ad hoc International Criminal Tribunal in Rwanda (ICTR) was set up in November 1994 under Resolution 955. The ICTR was establ ished to put on trial the criminals of the Rwandan Genocide who had committed the worst crimes between January 1, 199 4 and December 31, 1994 As recognized in the mandate, the wider goals of the tribunal were to create national reconciliation and sustainable peace throughout the region (ICTR website, General Information). The ICTR was also mandated to prosecute persons responsible for international legal violations outside of Rwandan territory. The Tribunal consists of three organs: the Chambers a nd the Appeals Chamber; the Office of the Prosecutor, in charge of investigations and prosecutions; and the Registry, responsible for providing overall
42 judicial and administrative support to the Chambers and the Prosecutor. Like the ICTY, the judges of the chambers are all elected through the Security Council. In resolution 977, the Security Council mandated th at th e tribunal be held in Arusha Tanzania. In accordance with the Statute, all States must cooperate fully with the international tribunal and take an y measures under their domestic law to enforce the Statute. In several articles of the Statute, there is reference to how similar the ICTR is to the ICTY. The UN used the ICTY as an example for the ICTR in hopes it would create the same accountability an d aid. However, the ICTR has proven to be one of the poorest examples of international involvement in a post conflict society. Many political debates on the ICTR surround its relationship with the Rwandan government; as well as some general organization al questions to how effective the tribunal truly is. Given the scope and magnitude of the atrocities committed in Rwanda and the procedural, bureaucratic, and budgetary obstacles involved in developing an effective tribunal, the ICTR illustrates the need f legal standpoint, the ICTR did great things in developing stronger international legal nor ms and ope ning the doors to the permanent court system of the International Criminal Court (ICC) in The Hague. However, Rwandan citizens were unconcerned with and justice for the victims and accused (Nash 2007, 63).
43 Historical Background In order to fully understand the political debates on the ICTR, one must understand the conflict and the circumstances that made it necessary for international intervention to take pl ace at all. The 1994 Rwandan Genocide was a politically and ethnically motivated mass killing of about 800,000 Tutsi people and moderate Hutus in a hundred day period, from the time of the assassination of Juvenal Habyarimana on April 6 1994 until mid July (Baines 2003, 479). In assessing the violence, it is important to recognize that the conflict did not start from an overnight aggression. Although the ethnic tensions between the groups remained fairly calm throughout the 1970s and 1980s, conflict betwee n the Hutus and the Tutsis can be traced back through Rwandan contemporary history (Caplan 2000, 129). An example of the historical conflict can be seen in 1957 with the publication of the Hutu Manifesto by the Hutu Emancipation Movement (Newbury 1998a, 12 ). The Hutu Manifesto outlined some of the foundations to the negative nature of the relationship between the Hutu and the Tutsi. However, it was by no means the start of the animosity between the groups. The Hutu Manifesto was a political document that cr iticized the minority Tutsis because they held the majority of power within the government under the Belgium regime. The Hutus animosity was fueled by the The Hutu Manifesto alongside the jealousy over land and power set the premise to the future civil war and genocide that took place in 1994. Powered by the jealousy and the Hutu Manifesto in 1959 a Hutu militia overthrew the monarchy and led a government that persecuted the Tutsi people, many
44 of whom were forced to fl ee the country. Once again, in 1973 when Juvenal Habyarimana came into power he continued the persecution of Tutsi people. In his time in office, President Habyarimana formed the National Revolutionary Movement for Development (MRND), whose goals were to c reate peace and unity of the government. During the time of MRND, the constitution was restructured and President Habyrimana created a one party government. It was not until 1990 that President Habyrimana announced his intention to reform the government in to a multi party system. Since the 1960s the government had been continually oppressing Tutsi. The History of violence reinforced the distinction and tension between the groups. Although there was relative peace in the 1970s and 1980s, the conflict betwe en the Hutu and the Tutsi had thus created animosity and warfare prior to the civil war and genocide in the 1990s. An important aspect of the hostility between the groups that is often overlooked is that both Hutu and Tutsi perpetuated the bitterness and v iolence. Many times the Tutsi are victimized because of the active hunt against them during the genocide, when the truth is the hatred was deeply rooted on both sides. An example of the unstable conditions is evident in the civil war prior to the genocide. An additional tension created prior to the onset of the genocide was the Arusha Accords, signed in 1993, which was designed to end the three year civil war. The Accords stripped the powers of the president and gave them to the transitional government at t he time. The Accords also consolidated many the Tutsi Rwandan Patriotic Front (RPF) gains that it seemed proof to Hutu, that once again the Tutsi were to be the winners (Des Forges 1995, 46).
45 The impetus to the genocide took place when a plane carrying Rwa ndan president Juvenal Habyarimana, and Burundian president Cyprien Ntaryamira, was shot down over Kigali, Rwanda. The Hutu immediately blamed the Tut si RPF for the incident, and moderate Hutu indiscriminately, and killing whatever Tutsi and moderate Hutu people they found. Although a recent amendment to the constitution refers to the 1994 Hut u (Rwanda Gives Ex Leaders Immunity 2008). Investigations of who was actually responsible for shooting down the plane have been heavily debated. A French judge did investigations into the plane crash and found President Paul Kagame responsible for ordering the attack against the plane (Doyle 2007). Mr. Kagame has vehemently denied the charge and blames the plane crash on Hutu extremists, giving Hutu a pretext to carry investigation in to the crash and found no link with President Kagame. although a specific event caused the onset of the genocide, the mass murders spread quickly and were state sponsored (Kra in 1997, 332). In the Hutu dominated government, hardliners labeled all Tutsi as enemies of the state (Newbury 1998a, 7). The most common explanation for the genocide was political elites wanting to maintain power in the time following the civil war and u nder pressure for a multi party system (Uvin 2001, 79). To reach the extent of the genocide, the violence and ethnic cleansing must be instigated, organized, and legitimized by the state (Uvin 2001, 80).
46 The Hutu led government perpetuated and approved t he mass killings of the Tutsi during the genocide. The difference between the Rwandan Genocide and other massacres in Rwanda was that the slaughtering happened by neighbors as well as elites (Uvin 2001, 84). It was a top down massacre of people that mobili zed others to kill from prejudice or fear. Due to the high number of deaths immediately following the plane crash, some theorists suggest that the Hutu people were waiting for an event to escalate emotions enough to create an environment that would perpetu ate mass killings of the Tutsi people (Newbury 1998b, 80 81). International Intervention As many as 500,000 Tutsi and moderate Hutu were killed in the first month following the plane crash (Kuperman 2000, 101). To get a broader picture of the large scale nature of these events, in May, June, and July some estimates calculated that more than half of the Rwandan population of 7.5 million people were either killed or displaced (Newbury 1998b, 80). The statistics and the nature of the conflict make the term g enocide appropriate. However, the definition of genocide is highly controversial. Even with the ethnic cleansing, it was not an easy step for the UN Security Council to define the violent incidents as genocide. The legal obligations and complications that come with the definition made many people reluctant to apply the term to the conflict. The Clinton Administration even sent a memo to officials forbidding the use of the word n 925 on June 8, 1994, that the Security Council explicitly acknowledged that genocide had occurred (S/RES/925/3388). Due to the relatively underdeveloped and many times
47 ambiguous nature of international law, dealing with accountability on an international level complicates the terminology further. At the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), defining acts as genocide makes them a crime under international law. The international community responds to v iolations of international criminal law in five ways: 1) doing nothing; 2) granting amnesty; 3) creating a truth commission; 4) domestic prosecutions; 5) international tribunals or trials (Yacoubian 2003, 135). Article VI of the Genocide Convention states, Persons charged with genocide shall be tried by a competent tribunal of the state in the territory in which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall acc epted its jurisdiction. (A/RES/3/260) With the definition in place and guidelines as to how to approach genocide in International Law outlined, it was no surprise that an international ad hoc tribunal was established. Through the guidelines set forth in the genocide convention, the international community had a duty to respond to the call for aid from Rwanda. However, Rwanda is considered to be a tiny state in a region with little strategic value (Kuperman 2000, 101). Besides compelling adherence to Inter national Law, self interested actors did not have much reason to intervene. At the onset of the genocide in April 1994, the international community did little to prevent or stop the killing in onal community has not contribute to the end of the genocide.
48 In addition to lack of strategic value to encourage intervention, knowledge on what was actually happening in Rwanda at the time of the genocide was usually wrong. The death tolls on how many people were being killed were grossly underestimated by most news sources (Kuperman 2000, 102). Due to the lack of interest prior to the genocide, countries like the Unit ed States did not have any reporters in Rwanda to accurately depict the magnitude of the events. When reports came out at certain points they pointed to a decrease in violence, in actuality the conflict was getting worse. An example of the lack of accurate response. President Clinton did not have the resources to acknowledge the genocide was taking place in Rwanda until April 20, two weeks into the violence (Kuperman 2000, 103). Intervention ultimately was de termined by a responsibility of the countries in the UN Security Council to follow through on the mandate set forth in the genocide convention. Although the UN's involvement during the time the genocide was taking place is controversial, and it has been we ak in supporting and aiding the Tutsi victims, in November 1994 the UN set up the ad hoc tribunal. The UN chose the retributive route in administering justice in Rwanda. Retributive justice uses punishment as a way to define acts as evil (Nash 2007, 63). I f the UN had opted to do restorative justice, more focus would have been on national reconciliation as opposed to punishment, as seen with the South African Truth and Reconciliation Commission (TRC). Unlike the ICTR, the TRC was developed by the South Afri can government with less decision making from the international community, although the latter still exercised oversight. A reconciliation
49 approach to justice focuses more on the victims and societal healing (Nash 2007, 64). With such a method, amnesty and impunity are common. The Rwandan government did not want to consider amnesty in the justice process; in turn it took a more retributive approach. A retributive form of justice does not allow for societal healing as well as restorative approaches do, which can be considered one of the major flaws of the ICTR. The biggest contribution to the final decision to implement an ad hoc tribunal was the success of the ICTY. Although the two conflicts had different crimes to punish and the ICTY was dealing with a mo re stable country, the UN wanted both to have similar successful qualities. From an international legal perspective, it was imperative to do so because the UN wanted to establish clear and consistent legal norms. The Statute says: The appeals chamber of th e ICTY will also serve as the appeals chamber for cases brought before the ICTR. Moreover, to encourage consistency in investigations and prosecutorial strategy Article 15 specifies that the chief prosecutor of the ICTY will also serve as the chief prosecu tor of the ICTR. (S/RES/3453/955) of International legal norms. The N remberg Trials, the ICTY, and the ICTR are the predecessors to the International Criminal Court (ICC). The ICTY and ICTR were responsible for establishing procedures and creating a foundation and legitimacy of international law and the International Criminal Court (ICC). The ICTR was formed not just to bring accountability to criminals. The develo pment of the tribunal was seen as a way to create sustainable peace. Stigmatizing delinquent leaders under international indictment not only undermines the criminals in
50 the state, but internationally as well. Furthermore, it sets norms that criminals will be tried on the international level and will hopefully deter others from committing similar or equal crimes in the future (Hathway and Koh 2005, 341). Controversies over International Involvement he genocide was had intervened sooner. Some theorists argue that intervention could have helped immensely, while others say that it ultimately would have made no difference (Kuperman 2000, 107 108). UN intervention was controversial not just because of its sanctioned French intervention in late June 1994 to help alleviate conflict. Many were skepti c of French mediation because the intervention was supposed to be aimed at saving the lives of the Tutsi people, and France had supported the Hutu led government. genocidaire s to flee Tutsi and RPF capture (Peskin 2008, 156). France was ultimately responsible for allowing criminals of the genocide to escape capture, but because the The majority of influence in est ablishing the ICTR was external. If more decisions were internally made, the effectiveness of the tribunal would be different and possibly more successful. The external decision making in the ICTR created tensions between Rwanda and the UN. An example of an issue with the ICTR mandate was that initially the Security Council sought to have trials that would only prosecute genocide acts that
51 fell between the dates April 6, 1994 (the day of the plane crash) and December 31, 1994. The Rwandan government propo sed extending the time span which criminals were being prosecuted for starting on October 1, 1990, and ending it earlier on July 1994 because of the severity and the problems prior to the plane crash and the RPF deeds after the genocide (Peskin 2008, 162). The time span which the Rwandan government wished to have was backed by investigations, even by some of the UN's own reports. The reason for the attempt at extending the time was because the acts of genocide were not isolated to the time span created. The historical tensions between the groups created northern elite, disgruntled politicians, and military officers, recruited between 30,000 and 50,000 unemployed and displaced b oys to join Interahamwe (Baines 2003, 484). Interahamwe of the dominant political party that formed the basis of the military groups that carried out the genocide (Baines 2003, 484). The g roup was formed based on notions from the Hutu men that their land would be taken away because of 1993 Arusha Accords (Baines 2003, 484). Ultimately, due to the capacity and the desire to expedite the process of the criminal proceedings, the Security Coun cil rejected the proposal by the Rwandan government. Instead the Security Council extended the mandate to include crimes starting from January 1, 1994 through the end of the year in December 31, 1994 (Peskin 2008, 162). Following the genocide, the Rwandan prisons were overflowing with suspects. It is understandable why the Security Council wanted to limit the time span;
52 the tribunal was having difficulties with the duration initially mandated. However, for many Rwandan citizens, not allowing criminal procee dings for those ethnic crimes that took place prior to 1994, seemed to discount one of the desired outcomes of the tribunal domestic and national reconciliation. For national reconciliation to truly work, cooperation between the institution and the country is a necessity. The discrepancy over the dates to prosecute criminals in the ICTR is one of many of the tensions that have come between the ICTR and the Rwandan Government. At Odds: The Rwandan Government and the ICTR From the establishment of the ICTR the threat of non compliance by the Rwandan Government with the Tribunal was a constant fear. In the end, Rwanda voted against the ICTR statute. The initial rejection of Resolution 955 by Rwanda set the foundation for the contentious relationship between the government and tribunal. When Rwandan officials asked for the help from the Security Council it seems that the government was actually asking for help in apprehending the genocidaires instead of forming a tribunal. One of the more general issues with such international legal institutions is that they seemingly impede on the sovereignty of a nation. The very existence of the UN court implied that the Rwandan Judiciary was incapable of reaching just verdicts, and seemed to dismiss in advance any trials that Rwanda might hold as beneath international standards. (Peskin 2008, 158) The quote exemplifies many of the ill feelings that the Rwandan government had against the tribunal. The government saw prosecuting its own criminals in the national court sy
53 care of its own citizens. Unfortunately, the reality of the situation required international intervention to take place. Also, once the crime was defined as genocide, the UN was obligated to put criminals on trial. The international community had failed to implement a transitional government to help democratize the country further. Moreover, the transitional government was also involved with the killings of the genocide, a nd failed to democratize the country any more than had the previous regime. Without a functioning democracy and court system, Rwanda could not have properly prosecuted individuals from the genocide on its own. International jurisdiction is a last resort, t he horrible reality of the genocide made it necessary for global authority over crimes to occur. It is understandable that a newly established government would want to prove itself worthy after years of persecution. However, the forces that made up the ne w Rwandan government did come to the UN for help during the time of the genocide, and establishing the ICTR was the path that the Security Council deemed most appropriate. The Rwandan government did in fact recognize that international intervention was nec essary in the aftermath of the disaster. However, it did not want to have international law imposed on the country and have no voice in the process. After the tribunal had already been established, Rwanda's deputy foreign minister said that Rwanda still wanted the tribunal; it just would have liked to set it up and structure it according to its own rules and procedures (Peskin 2008, 159). The call for help. In such a cas e the UN had a few options including a possible Truth
54 would have been counterproductive to reconciliation. The Rwandan government prefers harsher retributive justice appr oaches as opposed to restorative justice because of a desire to punish perpetrators. A major reason for such harsh punishment goes back to the power within government, the Tutsi led government wanted Hutu genocidaires to pay for the crimes committed agains t them. Also, the Tutsi desired a harsher punishment because of the acute nature of the crimes committed during the genocide. Due to party system, the Tutsi government did not have representation from Hutus to prevent retribution. allowing international jurisdiction over national law and criminal justice takes away Rwandan control over domestic matters. Prosecution of criminals has historically been reser ved for domestic governments, not the international community. The ICTR does not have any accountability to Rwanda and, although it is attempting to achieve reconciliation, the tensions between the Rwandan government and the UN have proven to be detrimenta l to achieving this ultimate goal. The ICTR is no doubt an experimental procedure, and some of the flaws of the system are being worked out in other international legal institutions such as the ICC. The discontent of the Rwandan government over the ICTR was evident in its constant threat of non compliance. Following the acquittal of the former Radio Telvision Libre de Mille Collines (RTLMC) radio station, in November 1999 a judgment that was later reversed, Kigali suspended its ties with the ICTR (Vokes 2 002, 2). The Rwandan
55 government has used its discontent to its advantage; it knew that because of its threat not to cooperate it had more bargaining power when negotiating with the UN. Once the Rwandan government suspended its ties with the ICTR, it used i ts bargaining power to overturn the acquittal of the notorious owners of the radio station. The daunting risk of non compliance from the Rwandan government was a problem not just for the UN. Actors such as the United States and Britain have intervened on the ICTR with ending its relationship. The same economic and political retributive threats that the United States used against Yugoslavia when it was threatening non compliance could no t be used to the same extent in Rwanda. The threats against Rwanda had to be more subtle, because the Rwandan government was already dissatisfied with the tribunal. Non cooperation from Rwanda has proved to be extremely detrimental to the peace making proc ess. Another controversy between the ICTR and the Rwandan government is the possibility that some members of the Rwandan government could face indictment for crimes committed during the genocide (Vokes 2002, 2). Many people in the Rwandan government are former members of the Rwandan Patriotic Army (RPA), the armed violence in 1994 (Vokes 2002, 2). The ICTR does not want to seem like it is only prosecuting Hutu, becaus e crimes were committed by both ethnic groups. Just because the Tutsi were the primary victim and now head the government, they are not exempt from prosecution. Evidence has suggested that the Tutsi led government was blocking
56 investigations into the crime s committed by the RPF against Hutu citizens during the genocide and since 1994. The RPF has silenced, arrested, exiled, or marginalized Hutu opponents, accusing them of being genocidaires The Tutsi run government is portraying a cohesive hegemonic state, and anyone who is even questioning these thoughts has been marginalized. The RPF has not only targeted Hutu opponents either; it also politically marginalized the Tutsi survivors. All in all, it is not just tensions between Rwand a and the UN that have halted the reconciliation process. Many of the problems are from the corruption and instability of the Rwandan government. The Rwandan government is also to blame for not taking the appropriate measures in creating an environment co nducive to reconstruction and rebuilding. One of major problems for Rwandan citizens is economic instability and the widespread poverty. With no help from the government or from the UN to improve these conditions, the citizens are becoming more removed fro m the ICTR. An international tribunal is one of the costliest Transitional Justice mechanisms. Many feel that the wealth needed to support the ICTR could have been better used to provide aid to the country and develop a better infrastructure. Location and Punishment One of the most fundamental problems with the ICTR is the location. The ICTR trials are located outside of Rwanda in Arusha, Tanzania. The UN thought it would be best to hold the tribunal outside of the cramped Rwandan territory. The location of the tribunal is extremely problematic in terms of national reconciliation. The majority of the victims of the genocide have no way or means to witness the trial. With the Gacaca
57 Court system and national court system, the victims minimally are capable o f being able to witness the perpetrators receive punishment, even if it was not as strict as the victims would have wanted. The ICTR was set up in order to help Rwanda, and when the trials are not even being held in the country of the victims and the crimi nals, what country is the tribunal really helping. that justice was being done, the criminal justice system ought ideally to operate within sight and hearing of the victims outside of Rwanda, but UN decided to hold them outside the country for a reason. In the aftermath of the genocide the civil and judicial institutions were completely destroyed and the majority of the higher level genocidaires fled the country. If the ICTR had decided to stay in Rwanda they faced major threats to security with fears of attacks and reprisals (Jallow 2007, 4). It would have been nearly impossible for the Rwandan government to conduct inve stigations and trials within the country in the immediate aftermath of the genocide. Some may argue the impartiality and security of having the trials elsewhere assures a more favorable outcome. Nonetheless, most victims and Rwandan people do not have the access to travel to see the trials in a different country. Holding the trials outside of the native nation is counter productive to the retributive justice. Another way in which the ICTR and the domestic court systems had discrepancies was in the punishm ent of criminals. The UN statute prohibits the use of death penalty in its punishment of victims. The abolition of capital punishment is seen with the trials in
58 all of the international criminal court systems, including the ICTY and the ICC. In the domesti c court systems, the death penalty is widely used and accepted. For the Rwandans, the national court system is only prosecuting lower level criminals and, if it is giving the death penalty to those prisoners, the higher level convicts also deserve the deat h penalty. The UN does not concur. The discrepancy over the use of capital punishment creates a huge inconsistency between the crime that was committed and an receive from the ICTR is a life sentence in prison. The Rwandans see the dissonance between the crime and punishment as allowing the most severe of the genocidaires to be left unpunished. Such thought is counterproductive to the reconciliation goals. On the other hand, the UN sees that if it allowed the tribunal to dispense capital punishment to the criminals, it would only inflame the Hutu and the Tutsi conflict and ultimately undermine the reconciliation. The UN's insistence upon not allowing the deat h penalty is not specific to Rwanda. The evolution of Humanitarian Law sinc e the N remberg and Tokyo trials has most national governments is to abolish the death penalty bec ause of a protection of Council see capital punishment as an antiquated and barbaric punishment. Although two of the permanent members of the Council, the United States and China, still use the death penalty, the Security Council did not change its stance on the issue at all. The Rwandan government is still practicing capital punishment within its own borders, and
59 the contradiction undoubtedly has left many Rwandan citizens and victims feeling wronged. The UN and the Rwandan government are both not backing down on the Surprisingly, even with the strong tension over punishment, the Rwand an government has not backed out of the tribunal, which shows that the government is minimally willing to work with the international community to achieve peace, even though it still wants to maintain sovereignty and its own criminal justice policies. Lac k of Funding and Lack of Capacity A study of the needs and preferences of the people living in post conflict, post genocide societies shows that economic and social stabilization is their absolute main priority. In June 2000, an opinion survey showed tha t economic hardship was the social problem that most people 81.9 percent of them identified economic hardship as their main concern (Cobban 2007, 60). The poll is not surprising, especially since the tribunal and the Gacaca and national court systems have proved to be a very costly task. The global cost of creating and continuing the court at the end of 2004 was estimated to be around 1 billion US dollars (Cobban 2007, 60). On a case to case basis the trials in the ICTR cost an estimated US $43,500,000 (Cob ban 2007, 60), an extremely high cost compared to the Gacaca Court system where each individual trial is estimated to cost US $540 (Cobban 2007, 60). The costliness of the tribunal is not sitting well with the Rwandan citizens. The foreign aid and investme nt that is being poured into the ICTR would likely be better spent on aid to help stabilize the economy, rebuilding for the citizens, and reparation. Which the ICTR does not have any mechanisms to grant victims
60 reparation packages (Mitchell 2003, 29). Inst ead, some NGO and other organizations have taken up the task of granting reparations to victims of the genocide. Many theorists of International Law cite lack of capacity and lack of ability to properly prosecute criminals as the most fundamental reasons for a country to experience intervention by an international court system. Understandably, the domestic court system was in shambles following the genocide, which was one of the many reasons for the necessity of the ICTR. One scholar estimates that the num ber of perpetrators of the genocide ranges from 175,000 to 210,000 people (Waldorf 2006, 33). The large number of criminals comes from the high level of participation by all citizens during the genocide. Rwandans had too many people already in prisons to p ut on trial that it could not possibly put all genocidaires on trial as well. Moreover, the high level genocidaires had almost all fled the country once the RPF took office. The domestic trials and for true reconciliation Delays in prosecution also hindered healing and reconciliation. The breakdown of the legal system persisted well beyond the conflict. The majo rity of the judges and prosecutors had been killed during the genocide, were part of the killings, or sought refuge in another country (Peskin 2008, 157). Due to all these issues, ICTR did not have its first trial until January of 1997 and the domestic cou rt system did not hold its first trial until December 1996. Although the Rwandan government wanted to use the national court system, many people did not think that the Rwandan courts could hold trials on their own. The
61 local court system proved to be mor e efficient, but not necessarily effective in the trial process. In early 2001, it was estimated that the domestic court system tried over 5,310 cases, where the tribunal only completed 9 cases (Peskin 2008, 157). Prior to the introduction of the local Gac aca courts, it would have taken the Rwandan government over 150 years to prosecute all the criminals awaiting trial (Graybill 2004, 8). One of the flaws and time consumption problems embedded in the ICTR is its rying to achieve national reconciliation and justice, but is doing it on a case to case basis. Unlike the prosecutions in the ICTR, a Truth Commissions approach attempts to expedite the process of looking into cases on an individual level by granting amnes ty to those who admit responsibility. Granting amnesty and impunity cuts the time and money necessary to achieve the widespread reconciliation. However, amnesties are controversial, especially when victims receive little or no compensation or assistance. T hey are particularly controversial if granted to those seen as most responsible for the crimes. The propensity for the ICTR to move at such a slow rate is yet again another concern of Rwandans. Even with the slow pace and extreme costs of the ICTR, the Rwa ndan government recognized that, when it came to without help from the international community. Nationalized and Local Courts Article VII of the Statute outlines the p rimacy of the ICTR over the national courts of all States (S/RES/3453/955). One of the ways in which the Rwandan people used their discontent to form their own system was with the establishment of the local
62 Gacaca courts in 2001 (Graybill 2004, 8). With al l the tensions and lack of cohesion between the Rwandan government and the ICTR, the establishment of a domestic court system to coincide with the ICTR was necessary in order to bring reconciliation. Legal pluralism can be the most accurate term to describ e the way these two systems worked together. The ICTR has power and primacy over the domestic court systems, but at any time it wants to defer to the national courts it can. The ability to defer cases exemplifies the necessity of the cooperation between th e Rwandan government and the tribunal. An interesting component to the Rwandan court system is the local Gacaca courts in addition to the nationalized courts. The Gacaca courts were launched nationwide on January 15, 2005. In the first three months of ope ration, the Gacaca courts tried 1568 persons and issued 1451 judgments (Waldorf 2006, 55). From the slow moving pace of the ICTR, the increase in trials is substantial. However, because of the rapid pace of verdicts and the lack of lawyers in the trials, a rguments have been made that the trials themselves are not very thorough. Moreover, the trials that done first already had confessions, which increased the efficiency as well, even if the confessions may not have been questioned or challenged in any way. O ther issues with the Gacaca courts include the lack of reparations paid to victims on both the Hutu and the Tutsi side; the courts do not offer any accountability for Hutu victims of the RPF. One of the most disheartening elements of the Gacaca courts is t hat they do not provide a sufficient trial or agenda to address female victims of sexual violence (Waldorf 2006, 55).
63 Although the Gacaca courts are definitely expediting the process of trying criminals under a court system, they have not alleviated al l timing issues. Some significant issues remain and still need to be dealt with. One of the more hopeful aspects of the localized court system is its traditional purpose. The Rwandan people have had a Gacaca court system for a substantial amount of time; i ts original purpose was to settle family disputes and local disputes in a village. Introducing a traditional Rwandan system into the national system, gives the Rwandan people a more familiar justice system. Even with the problems, the Gacaca courts are pro viding a step towards better national reconciliation. The reintroduction of the Gacaca courts is a way to give power back to Rwanda from the International bodies, and to pursue criminal justice by domestic means. Bringing it all Together A substantial a mount of time, energy, and finance have been dedicated to the ICTR. As seen here, there are several issues with the ICTR, especially with discrepancies between the Rwandan government and the UN Security Council. The tensions between the institution and gov ernment are exacerbated by the circumstances of the genocide and ethnic tension within the country. The newly established Rwandan government has a lot of work to do to achieve stability and it is using the international institutions as mechanism to help ac hieve those goals. However, the UN and the Rwandan government had different agendas and approaches to what a successful ICTR would encompass. The accomplish its goals cer tain standards needed to be met. Finding the right balance
64 between the international community and the nation is a hard thing to accomplish. Unfortunately, the ICTR has not necessarily accomplished that government asked for help, it ju st did no t think the help would come in the form of a criminal tribunal with international standards. The ICTR has been successful in developing standards in a body of rules, procedures, definitions, and precedents designed to ensure that the individuals responsible for massive violations of human rights and humanitarian law are held accountable, regardless of their position or title (Dougherty 2004, 311). The individuals are not being put on trial against a local court; they are being judged and prosecute d in front of the entire world. Even if the punishment falls short of what the Rwandan people had in mind, the criminals will have to live the rest of their lives stigmatized as having committed the crime of crimes genocide. Living with stigmatization is i tself strong punishment. Nonetheless, the stigmatization of a large number of Hutu as genocidaires can be counter productive to reconciliation and could prove to perpetuate ethnic tension. The relationship between the Rwandan government and the UN is not great, b ut the mere presence of the UN in Rwanda could be beneficial and possibly open doors to a more democratic agenda. Unfortunately, the ultimate goal of national reconciliation has not been met. With the stronger development of local and national court syst ems, there is hope that reconciliation will eventually happen. Like with the long process of the ICTR tribunals, it will take time. It is not just the ICTR that is complicating reconciliation. The economic, social, and political situation of Rwanda is ulti mately delaying healing in the country. The
65 UN was required to intervene once it distinguished the conflict as genocide. In some ways, because of the failure to intervene during the slaughter, the UN feels obligated to follow through with the ICTR. For th e future of transitional justice mechanisms, the domestic situation should be taken into account more fully. If a country is not democratic, maybe an international tribunal that creates tensions will not be the best solution. Also, if an ethnic cleansing w ere to happen again, maybe the emphasis should be put on types of punishment that move toward reconciliation and include reparations for victims. The UN had a difficult task in undertaking the ICTR, but, through the mistakes made in Rwanda the internationa l community will learn to make better decisions and put more thought into implementing future transitional justice mechanisms.
66 Criminal Court Introduction One of the biggest issues that p ost conflict societies face is dealing with the past and creating accountability for major human rights violations and horrendous crimes that took place during th e conflict. However, many times justice is overlooked in order to achieve peace. If justice is never served from previous atrocities, a society may be stunted from coming to terms with the past and may even fall back into conflict. Some inkelman 1994, 141). If Kant is correct, no crimes should go unpunished and unaccounted for. For some, justice must be served regardless of the means. It is an extreme stance to have, but at the same time, bringing criminals to justice is a basic form of l aying laws and rules in a newly transitioned society. Without definitions of laws and creating a mechanism of accountability for criminals, a government is not performing its duties of governance. Punishment for criminal behavior dates back to antiquity. S pecifically, international crimes such as war crimes were punished as far back as Ancient Greece, probably even earlier (Schabas 2001, 1). Even with the knowledge that justice is essential to rebuilding, many countries do not
67 have the capacity to administe r justice and hold criminals accountable for their actions. Lack of accountability for war crimes and human rights violations is prevalent throughout the world, but can be seen most frequently in Africa, which has the highest number of civil conflicts in t he world. One solution for the lack of capacity that many African nations face has been to turn to the International Criminal Court (ICC). On July 17, 1998, 120 states of the international community adopted the Rome Statute, the legal basis for establish ing the permanent International Criminal Court. Many African nations have looked to the ICC for assistance in upholding standards of justice. The Rome Statute entered into force on July 1, 2002 after ratification by 60 countries. The International Criminal Court, governed by the Rome Statute, is the first permanent, treaty based, international criminal court established to help end impunity for some of the most serious crimes and concerns in the international community (ICC website, About the Court). The co untries that have ratified the Rome Statute and implemented the conditions into domestic agenda of the country are referred to as a nation of The Assembly of States Parties. The International Criminal Court aims to prosecute criminals who have committed cr imes of genocide, crimes against humanity, and war crimes. The ICC sees its role as a tried under their domestic judicial systems, whether from lack of capacity or simply lack of attempt by the national government to try the perpetrators. If nothing is being done by the state system, the ICC can exercise its jurisdiction over those individuals. The need for an international legal body is long overdue, and there is no possi ble way for the ICC
68 to try all individuals who have committed those crimes the ICC is mandated to prosecute. Due to the lack of ability to prosecute all criminals, the ICC aims to indict criminal leaders and criminal masterminds. The court does not have un iversal jurisdiction and can only exercise jurisdiction under certain conditions. The first or a state accepting the jurisdiction of the Court. A State Party of the ICC is a country that has either ratified the Rome Statute. Many countries have signed the Rome Statute but not ratified the treaty. For the ICC to have jurisdiction in a nation, the country must be a State Party of the ICC. Signing merely gives a commitm ent to ratify the treaty in the future. The second circumstance is that the crime must have taken place on the territory of a State Party or a state otherwise accepting the jurisdiction of the Court. Third, the United Nations Security Council must have ref erred the situation to the Prosecutor, regardless of the nationality of the accused or the location of the crime. Two of the three conditions that must exist for intervention by the ICC are contingent upon whether or not the criminal in question is from a State Party nation of the ICC. For the ICC to fulfill the goal and agenda for ending impunity, it needs more countries to sign the Rome Statute and become state parties. The more countries that become a State Party the less difficult it will be to prosecu te criminals, and the closer the ICC will be to ending impunity and creating an international culture of accountability. When looking at the ICC it is important to recognize the role Africa has had in its formation. Because of the large number of civil co nflicts and human rights violations taking place in Africa, the ICC has focused primarily on cases from the continent.
69 Interestingly enough, even with all the open cases in the ICC stemming from Africa, 23 of 54 African states have yet to sign the Rome Sta tute. Many of these countries are in Northern Africa, as all but six Sub Saharan African states have signed the Rome Statute since 1998 (Lauterbach 2009, 85). The ICC: Negotiating Sovereignty and Justice There is no question that the development of a pe rmanent international court system has been controversial. Some of the issues scholars have discussed are questions of sovereignty and what subjecting such important decisions to international judgment means for the domestic court system and the governance of the country in question. The increasing authority of international institutions such as the ICC is a scary thought for many scholars and national leaders because it is taking authority away from the national government and giving it external powers. So me believe that agreeing to the ICC is relinquishing sovereignty and the privilege of the state to prosecute criminals on its own. The ICC has the ability to make legally binding decisions on issues formerly under national control. Due to the legally bindi ng nature of the Rome Statute, many states fear losing sovereignty to the ICC by granting such a strong international in international legal terms, which means there is a higher cost to sovereignty because there is little room to amend or contest the decisions of the ICC. The U.S. has probably one of the strongest positions against the ICC on the grounds of cost to sovereignty (Edlin 2006, 4). Every country is undoubt edly concerned with its sovereignty, but not all countries see their sovereignty in the same way. Pride in
70 the domestic court system could render countries against the international legal body. A country as powerful as the U.S. does not see any reason for a U.S. citizen to be tried outside the U.S.. The U.S. has a fully functioning domestic court system. Signing on to the Rome Statute and allowing external jurisdiction could be read by other nations as a sign of weakness for the national judicial system (Ni ll 1999, 79). Inherently, the ICC is based on international law, and, as David Nill points out international law is gradually moving away from a state centric approach to one that is based on human rights and morals (1999, 72). The gradual movement away f rom state centered attitudes is why the sovereignty cost is not as important as it once was in the international community and gives more nations incentive to sign the Rome Statute. It is still, however, one of the biggest explanations for why countries ha ve not signed the Rome Statute. The cost to sovereignty debate concerns whose responsibility it is to prosecute criminals of genocide, human rights violations, and war crimes. Is the international community responsible for administering punishment, or is it the domestic international community (the United States, India, and China to name a few) have not only refused to sign the treaty, but blatantly tried to hinder the process, the success of the ICC seemed unlikely. More recently under the Obama administration, U.S. policy towards the ICC has loosened up a great deal. Signs of support are even coming from the Department of State. On November 18 26, 2010 a U.S. delegation attende d the Eighth refuses to sign the treaty even with the strong U.S. position in the United Nations (UN).
71 The relationship between the UN and the U.S. is odd, consider ing the UN has the ability to bring cases to the ICC, they work closely with one another but do not share support for the ICC. The relationship between the U.S. and the United Kingdom (UK) is also interesting because the U.S. and the UK have a very close r elationship and the UK was one of the first countries to ratify the Rome Statute. A possible explanation for the different relationship the U.S. and the UK have with the ICC deals with the relationship of each country to the UN and the EU. An example of th e authority given to international institutions is seen with the EU and the ICC. All members of the European Union (EU) have signed the Rome Statute (Cooper, Hawkins, Jacoby, and Nielson 2008, 501).The EU being has been such a proponent of the ICC that on April 10, 2006 the EU ICC Co operation and Assistance Agreement was signed. The agreement requires cooperation between the ICC and the EU, mostly in the form of sharing classified information and financially supporting the ICC. EU member states are the bi ggest financial contributors to the ICC. The number of countries refusing to sign the treaty indicates the strong opposition to the International Court. At the same time, Africa has been the focal point he countries in Africa are also supportive of a permanent court system on an international level. Even with general support of the ICC, the question remains, why have countries in Africa not signed the Rome Statute? Deciding Whether to Join the ICC The explanations for why countries have or have not signed the Rome Statute are complex. I propose nine separate hypotheses to help explain why countries have signed
72 or have not signed the Rome Statute. They can be classified based on whether the hypothesis lo oks at internal (within the state) or external (outside the state) influences and variables. Both internal and external factors are essential components that must be taken into consideration when solidifying a policy towards the ICC. In most cases, multipl complex explanations is to identify individual factors that seem to correlate with the positive or negative decisions. the state affects history of violence and conflict, especially in the aftermath of colonialism. Following the Berlin Conference of 1884 1885, African countries were for med as European settlements. The dissatisfaction and anger over colonization is seen particularly in the wars and resistance movements against colonialism (Nkiwane 2001, 281). The states eventually formed from colonial legacies often face a lack of coheren ce in boundaries and populations, as well as underdevelopment. Moreover, the favoritism that colonial powers exhibited to particular ethnic groups has created long lasting tensions within nations. A well known example of tensions that started during coloni alism and elevated into genocide in the 1990s was in Rwanda between the Hutu and Tutsi ethnic groups. In 1945, there were only four African member states of the UN, as most countries did not gain independence from colonial rule until the 1960s. In 1948 t he Universal Declaration of Human Rights (UDHR) came into existence and, surprisingly, one of the countries that took part in the foundation of UDHR was the Republic of South Africa. The
73 arty came into power, bringing a p artheid and legalized racial segregation to the forefront. Like many countries in Africa, South Africa was a British colony and the racial segregation from the National Party came from the colonial powers. Apartheid did not come to an end until the 1990s, and South Africa is now considered to be a more democratically run state than it was during the apartheid regime. To reconcile past conflict stemming from the wrong doing of apartheid, South Africa set up a Truth and Reconciliation Commission (TRC). Curren tly, the country is a one and does not follow the typical pattern of a history of repression by the state. Most countries that have a history of violence are less lik ely to join in international agreements and arrangements, especially a treaty that will hold previous government elites accountable for their actions. Sudan provides an example of a country with a history of violence and repression that chose to not sign actively engaged in conflict and human rights abuses. Sudan has been in a civil war for over forty Liberation Army (SPLA) are still in conflict even after the signing a Comprehensive Peace Agreement (CPA) in 2005.While South Sudan has since voted for independence, flash points of conflict remain. Many events in the course of the conflict could fall under the charge of the ICC. A likely reason why Sudan has not signed on to the Rome Statute is that lead Prosecutor of the ICC Luis Moreno Ocampo has sent out an arrest warrant for
74 Sud anese President Omar Hassan al Bashir. Moreno Ocampo is trying to indict Bashir with crimes of genocide, crimes against humanity, and war crimes, for his actions in the conflict with Darfur; all are punishable under the Rome Statute (Peskin 2009, 658). So uth Africa and Sudan present two different examples of current governance in Africa, a positive example for ratification of the ICC and a negative example. Both countries have a history of repression from the state, but both have different outcomes becaus e of current governance and the paths taken in the 1990s. Countries facing a repressive regime will fall between these poles of South Africa and Sudan. Another reason that could possibly explain why a country would be reluctant to sign the Rome Statute ma y be due to its history. My first internal hypothesis considers whether the country has a history of violence and repression by the state. Internal Hypothesis 1 : History of violence and repression by the state. The greater the history of violence and hig her repression from state, the less likely the government will be to sign the Rome Statute. Most scholars in the Transitional Justice field see the ICC as a transitional justice mechanism. The International Center for Transitional Justice (ICTJ) fully sup ports the ICC and its work by co hosting conferences and participating in the Review Conference of the ICC Rome Statute that was held in Kampala, Uganda on May 30 June 11, 2010 (ICTJ, Criminal Justice, The International Criminal Court). The current missi on of the ICC is not to prosecute or try criminals from countries with a fully consolidated democracy. Countries that have reached a fully consolidated democracy will not need to use the ICC because they will be capable of trying citizens and perpetrators successfully under their own domestic court system. The three crimes the ICC seeks to punish and prevent are
75 genocide, crimes against humanity, and war crimes. These atrocities occur primarily in ch for Peace Institute (SIRPI) claimed that Africa is the most conflict ridden region in the world and the only region in Civil conflict can have many roots economic i nequality, religious and ethnic divisions, power struggles, and a weak political structure to deal with grievances only worsens the violence. Many factors contribute to the mass civil violence in Africa, and much of the violence has historical linkages. Economics also undoubtedly play a major role in the continuance of civil conflict in Africa. Intrastate war in Africa is largely initiated by rebel and such organizat ions require substantial financial resources both to meet their payrolls groups is not uniformly positive or negative in a normative sense, in that sometimes the rebel group s are fighting against an oppressive regime. Regardless of the reason for rebel groups, they always will create political instability and an unsafe environment for civilians. The political instability is seen not only in the government structures but also in gets in a conflict the more chance there is for the national army to commit crimes that can also be prosecuted under the ICC. The majority of the trials that are being held in The Hague deal with leaders of rebel factions from civil conflict, e.g. the trials over the
76 prosecute crimes in civil conflicts, states may be more reluctant to sign the Rome Statute if involved in internal conflict. My second internal hypothesis deals with whether or not the African country is involved in an inter group conflict. Internal Hypothesis 2 : Inter group or intrastate conflict in state. The higher the amount of inter group conflict in the state, the less likely the state will be to sign Rome Statute. One of the most important conditions embedded in the Rome S tatute deals with willing to prosecute criminals under its domestic regime and has the capabilities to do so, the ICC will not take the case to The Hague. If a nation do es not have the means to prosecute criminals due to a weak infrastructure and fragile rule of law, there would be more need for the ICC in that country. If a nation is unwilling to prosecute an individual under its system, the country is most likely not in congruence with the ideas and goals behind the ICC. In that case, it will probably not sign the Rome Statute. Since democracy is considered to be the most successful form of governance for maintaining human rights standards, most stable democratic countri es would prosecute criminals under their domestic system. However, many states transitioning to democracy do not have the judicial capacity for such prosecutions. The Democratic Republic of Congo (DRC), by no means a democracy, is implementing steps to bec ome a functioning democracy and establishing rule of law. However, due to economic and political unrest and perpetual armed conflict it still faces a serious lack of state capacity. The DRC has signed on to the Rome Statute and is willing to let the ICC ex ert jurisdiction over its citizens.
77 The effectiveness of the domestic rule of law and judicial system influences a that, once a country signs the treaty, the country m ust incorporate its cooperation with ensure that there are procedures available under their national law for all of the forms 006, 500). Signing the Rome Statute requires the national law making system to accept the international law into domestic law; yet, this requirement does not ensure either democracy or legal capacity to enforce the law. Countries with the basic foundation for rule of law and judicial systems but weaknesses in both, like the DRC, would benefit the most from signing the ICC, because the ICC could help develop the domestic judicial system. My third hypothesis deals with the effectiveness and the rule of law in a country. Internal Hypothesis 3 : Rule of Law and autonomy of the judiciary. The more established and functioning the domestic court system is the less likely the state will be to sign the Rome Statute. When a country signs the Rome Statute, its leaders are opening themselves up to prosecution by the international community. Although the ICC does not specifically seek out crimes of corruption, States Parties are open to the jurisdiction of the court which someday could be expanded to corruption. The Nige rian government estimated that over 140 billion dollars have been lost to the continent since the 1960s due to corruption (Lauterbach 2009, 88). Little has been done to battle the pervasive corruption throughout Africa, and recently there has even been maj or back tracking in the fight against fraud. Unfortunately many leaders of organizations actively trying to bring
78 accountability and eradicate exploitation become embattled or are killed (Dugger 2009, A1). In the late 1980s and early 1990s, public protest s against the economic crisis primarily stemmed from fraud of government officials. The protests that took place in this time period led to regime changes in many countries throughout Africa. Student groups and trade unions joined opposition forces, causin g strikes and work stoppages, accommodation of groups while also repressing them (Lauterbach 2009, 91). re gime in the DRC. A corrupt dictator who, like the Belgian colonialists, stole money earned from the resource rich nation, Mobutu was notorious for his fraud and earned civil conflict and is attempting to democratize, but it still faces issues of corruption. Transparency International is attempting to bring suit to the leaders of Gabon, the Congo Republic, and Equatorial Guinea by forcing the French government to investig ate how the leaders of these countries and their families acquired tens of millions of dollars in assets (Dugger 2009, A1). The problem with the high amount of corruption in most African states is an indication of the authoritarian rule many states have fa ced at one point or another in the past 50 years. The violence associated with authoritarianism and the change of regime in the late 1980s and early 1990s is the type of act punishable under the ICC. Fear of being indicted under the ICC due to the repressi on that enabled corruption is a very real threat. My fourth hypothesis deals with the amount of corruption in the nation.
79 Internal Hypothesis 4 : Corruption in domestic government. The more the corruption in the government, the less likely it will be to s ign the Rome Statute Understanding the political structure of a nation is important because it not only international community. Following the protests in the late 1980s and the early 1990s, freedoms and higher standards of living (Lauterbach 2009, 91). However, the majority of countries in Africa have yet to reach a fully consolidated democracy. They are still stuck the installation of a usually fragile democracy, African transitions have landed in a range outcomes include anarchy, military oligarchy, and liberalized autocracy, but usually not a fully established democracy. The political liberalization necessary for a country to democratize opens doors to political dissent, loosening laws on civil society, a nd prompting splits within the government, all of which create the possibility of violence in a violence prone society (Lauterbach 2009, 90). The fragile situations, politically and economically, in which many African countries find themselves make it muc h more difficult for them to democratize. The more democratic policies that are implemented into law and attempts by the government to democratize, the more beneficial it would be to sign the Rome Statute. The Rome Statute has democratic values embedded in its conditions and laws. International norms correspond more with democratic ideals than with authoritarian ideals. By signing on to the treaty, a country will implement legislation that can help
80 democratize the judicial system. Signing will also show a country more willing to cooperate in international agreements and maintain a culture of accountability. The more cooperative a government is, the more likely it will want to fulfill a democratic agenda. Joining the Rome Statute will show a liberalizing go enhance domestic and international reputation and to institutionalize conflict management mechanisms and other political reforms suggested by democratization (Lauterbach 2009, 91). My fifth internal hypothesis deals with the type of re gime and attempts to democratize. Internal Hypothesis 5 : Type of regime. If the government is authoritarian, it will be less likely to sign the Rome Statute. Regional relationships play a pivotal role in policy making. Undoubtedly, diffusion of ideas has a very strong impact on neighboring countries. The political movements seen across borders will resonate with citizens and could plant the seed of change next door. Ideas are not the only thing that proximity can influence. The amount of violence and confl ict in neighboring states has an impact on a country. Housing refugees from a nearby conflict can have a negative impact on the economy and can create social and political tensions within a country. For example, Chad has many external refugees from its nei ghbors in Sudan. The refugees have strained the economy and created a more poverty stricken environment for the citizens of Chad. With more refugees, the civilians of Chad are required to share the already few resources. The negative impact the economic s ituation has had on the country in turn has led to tensions between Chad and Sudan.
81 Furthermore, the government structure of neighboring countries can play a very important role in foreign policy. Neighbors with similar regimes and perspective find it eas ier to cooperate in trade. If a country is trying to establish a democracy, it would be to its advantage for their neighboring countries to share a democratic agenda. Having neighbors with a similar agenda is not just important for economic purposes such a s trading, but also for security purposes. If a country pushes a neighboring country to democratize, when the country itself is trying to legitimize its democracy, it is improving their status in the international community. Seemingly, whether or not a ne ighboring become part of the Assembly of States Parties in the ICC. My sixth external hypothesis deals with the neighborhood effect. External Hypothesis 6 : Neighborhood effect. If the surrounding countries have signed the Rome Statute, the country will be more likely to sign as well. Although civil conflict is more prevalent throughout Africa, interstate conflict is also a problem. In many situations, the conflict start s as intrastate violence, but can spread to surrounding countries and become an interstate conflict. An example of civil conflict turning into interstate conflict is seen with the rising tensions between Chad and Sudan. The civil conflict in Sudan has pour one of the biggest conflicts in all of Africa and has not remained a civil conflict. The ICC has a warrant out for President Al spillover of that confli ct has already led to skirmishes across Sudanese borders. The people in the Southern region have been fighting for their independence from Sudan for
82 years and it was finally granted with a referendum in 2011. The warrant from the ICC for crimes that Al Bas hir committed in Darfur can be seen as a precedent for crimes in South Sudan, which will soon be outside his rule. The ICC does not base its prosecutions on whether the conflict is inter or intrastate; rather it is looking to prosecute crimes of genocide, war crimes, and crimes against humanity; essentially it cares about the type and degree of violence. However, even if the ICC is not considering whether the violence occurs in intra or interstate es problems with surrounding countries, the chances are that the violence in the conflict meets the criteria for prosecution within the ICC. The more widespread a conflict is, the greater the risk of genocide, crimes against humanity, and war crimes. Also, if the conflict is more widespread, more people are affected by the violence, and accountability for those crimes will be needed more so than in conflicts where not as many people are affected. In other words, interstate conflict would seemingly have more characteristics of the types of crimes that the ICC attempts to prosecute External Hypothesis 7: International Tension. If a country is involved in an interstate conflict or is likely to be involved in external conflict in the future it will be less like ly to sign the Rome Statute. A more well known area of debate surrounding the ICC comes from the refusal of the United States to sign the Rome Statute. The problem with the United States not signing on to the Statute does not merely affect the relationshi p that the ICC will have with the United States; it also could be a determining factor for African countries decision to sign. An example of the implications of the United States issue with signing
83 on to the ICC is seen with its threat to veto any referra l of a case fo r the situation in Darfur (Sriram 20 0 8 2). Without support of the United States, the ICC loses some of its legitimacy, which can prolong the processes of arresting and prosecuting the criminals under the international court. The diffusion o f ideas and the undermining effect on the ICC of power from a global hegemon could explain why some of the African countries have not agreed to ratify the treaty. Many scholars tend to believe that without support from the United States the ICC is destined to fail. The reason is that the U.S. has enormous capacity to exert influence all over the world and particularly in Africa. The U.S. also has the ability to obtain information better than any other country in the world, and the resources the U.S. could u se to help the ICC would be tremendous (Marinakis 2009, 144). The p ower and presence the U.S. has i n other countries makes it understandable why some believe that U.S. involvement in the ICC is so imperative to its future. Nevertheless, the ICC has continu ed its mandate even without the U.S. signing the Rome Statute. Relations between the U.S. and the ICC have improved significantly under the Obama Outcome of the Recently have reset the default on the U.S. relationship with the court from hostility to positive Rapp, 2010). This recent positive relationship will prove to be a involvement in the international court system as well.
84 The U.S. does not stand alone in its ambivale nce to signing the Rome Statute. Other influential countries like China have abstained from signing. The lack of involvement by international powers begs the question of fairness within the ICC. Major countries not signing the treaty sends the message that allies do not need the help of the ICC and do not need to subject themselves to the ICC, leaving the court to focus on smaller and weaker countries. The current case load consists only of African countries, and, if the patter n continues, political elites within African countries may become reluctant to sign the treaty or may withdraw from the ICC in fear that they too could be the next case of the ICC (Sriram 20 0 8, 2 ). My eighth external hypothesis deals with salience of the U .S. External Hypothesis 8 : Salience of the US. The closer relationship with the US, the less likely a state will be to sign Rome Statute. Another international factor concerns financial institutions and the power they have over countries who have received loans from them, while a strong relationship with the U.S. would seem to deter a country from becoming a State Party, the opposite effect could be predicted for states dependent on loans from international financial institutions. The International Moneta ry Fund (IMF) and the World Bank have bailed out and disbursed loan money to almost every country in Africa, even if the loans are small. The international financial institutions, like many international institutions, have strong democratic foundations and agendas in mind. For example, the World Bank imposes preconditions for loans that pressure African governments to open their markets and political systems in hopes of securing not only international legitimacy, but also domestic
85 stability (Lauterbach 200 9, 91).The IMF and the World Bank have very specific regulations on how a country can use the loan money. Stipulations for loan money are included in order to facilitate and encourage democratic transition and consolidation, although democratization does n ot always happen. My ninth and final external External Hypothesis 9 : Relationship with the IMF and World Bank. The more money the country is receiving from the IMF and World Bank the more likely they would be to sign the Rome Statute. Methods To test the nine hypotheses, non parametric, one way statistical analyses were used to determine whether there were correlations between each independent variable and the dependen t variable of signing the Rome Statute. The statistical analysis software used to perform the Mann Whitney U test for each hypothesis was SAS. The dependent variable was whether the country had or had not signed the Rome Statute as of August 2010. To quant signing the Rome Statute. I ran that data against ordinal independent variables to prove or disprove correlations between the explanatory variables and the dependent variable. Wit h the data I found using the correlation test, I compiled eta square d statistics. Eta square d results are not a function of sample size and therefore make the individual studies more comparable. The Mann Whitney U test was used for all the tests because o f the ordinal nature of the data. The variables used were independent from each other and the responses are ordinal and continuous. This rank sum procedure was used to test the null
86 hypothesis. It works by ranking all the data, then separating it by its d ependent variable group, which are countries that have signed the Rome Statute and countries that have not signed the Rome Statute. It then sums the ranks for the countries that have signed the Rome Statute and for the countries that have not signed the Ro me Statute, then tests to see if the sums of the groups a re significantly different. The test assumed an identically shaped and scaled distribution for each group, except for any difference in medians. The Mann Whitney U procedur e measured the tendencies within the two different groups by ranking and comparing them to the median value and then compared the tendencies across the two groups The non parametric, one way rank sum test utilized in the Mann Whitney U procedure provided the best test for the nat ure of the data and was the most effective way to test for significant correlations. To test the strength of the relationship between the variables I calculated the eta squared. Eta squared is an estimator of variance in the dependent variable explained by the independent variable Typically, the eta squared overestimates the variance explained in the population, so the larger the sample size the smaller the bias. Due to the fairly high number of countries used, the bias in the calculation was small. Th e eta square d is probably one of the most important statistical analyses performed because it showed how powerful the relationship between the variable s was, and whether the statistical significance that was found or not found held any weight. The data us ed for this procedure came from a few sources, the majority of the data came from the Mo Ibrahim Foundation 2010 data. The Mo Ibrahim Foundation was established to stimulate debate on governance across sub Saharan Africa and around
87 the world; provide crite ria for which citizens can hold their government accountable; recognize achievement in African leadership; and provide a practical way by which African leaders can build positive legacies after office. The Ibrahim Index aims to capture the quality of gover nance through the eyes of the citizens. It measures how well the government delivers economic, social, and political goods and services to citizens and non state actors. By producing the Ibrahim Index, the foundation seeks to raise awareness for groups tha t want to change the many examples of poor governance in Africa. The Index indicators are grouped into four main categories: safety and rule of law; participation and human rights; sustainable economic opportunity; and human development (Mo Ibrahim Foundat ion Methodology, 2010). Many indicators used in the data compilation had missing data, especially for periods during 2000 2009, due to a lack of capacity to find information. To resolve the issue, indicators and missing values were estimated from the most recent data collected (Mo Ibrahim Foundation Methodology, 2010). The Ibrahim Index is a composite of polls utilizing data from 23 external institutions. Following the gathering of the raw data on all ange the raw data on to a common scale. Fundamentally, the Min Max method involves re scaling the raw data values to a scale of 0 100, for every indicator, for every country, and for every year. This is done using the formula: [xt Min(X)]/[Max (X) Min (X)]*100 Where xt is the raw value for that indicator of a country in year t, and the Min(X) and Max (X) are the minimum and maximum values for that indicator over the whole period and for all countries. The final result was subtracted from 100 where neces sary, so that a higher number always indicated a better performance. (Mo Ibrahim Foundation Methodology, 2010)
88 For my sixth external hypothesis using neighborhood effect as an explanatory variable, I used data provided by the CIA World Factbook. I looked at the length of borders surrounding all 54 countries and how many countries surrounded each state. I then separated the length of borders into two categories, one for countries that have signed the Rome Statute and another for countries that have not si gned the Rome Statute. I chose to not use the number of surrounding countries in Africa that have or have not signed the ICC, because some countries only meet at a point or share a very small border. I added the lengths of shared borders for countries that have or have not signed the Rome Statute and used that summation of shared border countries in my data analysis as an independent variable. For my seventh hypothesis on interstate conflict I used data from the Mo Ibrahim Foundation that quantified Inter national Tensions into whether a country was involved in external conflict or had a likelihood of going into an interstate conflict. Countries that were involved in a conflict outside of their own borders scored the highest. For the eighth hypothesis exam ining salience of the U.S. as an explanatory variable, I used the amount of aid given to each country in Africa. The data used came Aid by Major Recipient Country: 2000 to recent data they had for each country. For the ninth hypothesis examining the international financial institution the IMF as an explanatory variable, I used data from Nations Encyclopedia that calculated the current account balance as the percent of GDP. Not all data is from 2010, but it is the
89 most current for each country. The current account balance is the sum of net exports of goods, services, net income, and net current transfers and is taken from the In ternational Monetary Fund, Balance of Payments Statistics Yearbook and data files, and World Bank and OECD GDP (taken from Nations Encyclopedia ). Empirical Results Internal Hypothesis 1 : History of violence and repre ssion by the state. The greater the h istory of violence and higher repression from state, the less likely the government will be to sign the Rome Statute. For the first explanatory variable I used the Mann Whitney U correlation to analyze data from the Mo Ibrahim index on Domestic Political Persecution. I chose to use the Domestic Political Persecution as an explanatory variable because it shows how the country ranks with respect to utilizing political persecution as a means for the political party to maintain power or oppress citizens. The score was based on a 0 100 scale, where a score of 100 means the country is not repressive and 0 means the country is Here are the results for hypothesis 1: Wilcoxon Scores (Rank Sums) for Variable Domestic Political Persecution Classified by Variable RS RS N Sum of Scores Mean S core 0 22 499.0 22.682 1 31 932.0 30.065 Chi Square 2.9633 DF 1 P Value 0.0852 (eta squared) = 4% Statistical significance is defined by the probability commonly referred to as the P Value. The conventional criterion for significance is seen by a P Valu e of .05 or 5%.
90 However, .1 is also a benchmark for significance. Although the P Value for this data is over the standard .05 criterion for significance, it remains under the less rigorous benchmark of .10 and therefore approaches significance, which sugge sts there is a relationship between the two variables. The null hypothesis is rejected. The null hypothesis for any hypothesis states that the variables are independent of one another and have no relationship. For my first hypothesis, the null hypothesis i s that there is no relationship between the extent of domestic political persecution in a country and whether or not the country has signed the Rome Statute. not signed the Ro me Statute) it is clear that they on average score less on the index. Although the difference between the means for countries that have signed and countries that have not is only approximately eight points, it is significant. A possible explanation for onl y an eight point difference in means could be due to certain countries like Sao Tome and Principe that scored a 100 on the index but have not signed. Sao Tome and Principe is an anomaly to the countries in the index. Countries with abnormal data skew the r esults. Interestingly enough, Sao Tome and Principe was the only country in Africa to score a 100 on the index. Overall, countries that scored better on the index generally are members of the Assembly of States Parties of the ICC, showing there is a correl ation between domestic political persecution and whether or not the state has signed the Rome Statute. The eta squared at 4% shows that there is a small weight between the variables. It is not insignificant, but not as high as I thought it would be for thi s hypothesis.
91 A possible explanation for the correlation between the variables is because countries that are states parties can be prosecuted under the ICC for some forms of n why the state has not signed Internal Hypothesis 2 : Inter group or intrastate conflict in state. The higher the amount of inter group conflict in the state, the less likely the state will be to sign Rome Statute. For my second hypothesis I also used dat a from the Mo Ibrahim Index, this time 2009, measuring the amount of civil conflict in a country from 0 100, where 100 signifies no civil conflict and 0 signifies heavy worst civil conflict. The index is from the Economic Intelligent Unit (EIU) and commissioned data. The number given to each country is assessed through the level of domestic armed conflict in a country that takes into account internal conflict and civil war or the likelihood that a conflict will start in the near future. The data excludes cross border conflict. I ran a Mann Whitney U test using the Domestic Armed Conflict as an explanatory or independent variable aga inst the Rome Statute Variable. Here are the results for hypothesis 2: Wilco xon Scores (Rank Sums) for Variable Domestic Armed Conflict Classified by Variable RS RS N Sum of S cores Mean Score 0 22 556.50 25.2964 1 31 874.50 28.2096 Chi Square 0.4906 DF 1 P Value 0.4837 1% The null hypothesis for hypothesis 2 states that there is no correlation between the Domestic Armed Conflict variable and whether the country has or has not signed the
92 Rome Statute. The P Value = .48, indicates that there is no statistical signif icance between the two variables and the null hypothesis is retained. It seems that the results show a pattern that proves at least some level of the hypothesis: countries that have signed the Rome Statute are less likely to be involved in Domestic Armed C onflict. Although the mean difference between the countries that have signed the Rome Statute and the states that have not signed is fairly small with only about 3 points difference in means, there is still a difference. Even with no statistical significan ce, the data shows a pattern. The eta squared result of 1% is not surprising, considering the variables did not show any statistical significance. The statistical results show the weight between the variables is small and insignificant. A possible expla nation for why the variables are not correlated or opposite of what I imagined is most likely the high amount of civil conflict in countries from both categories and the inconsistency of scores. There are countries in each list that skew the data and make the means similar. However, when you look separately at the countries that are States Parties and countries that are not, there is evidence to show that my hypothesis is still correct even without statistical significance. Only three countries out of the twenty two countries that did not sign the Rome Statute do not have any civil conflict. In contrast, to eleven countries out of the thirty one countries that do not have any civil conflict have signed the Rome Statute. Meaning 13.6 % of the countries that have not signed the Rome Statute do not have any domestic armed conflict, a fairly small percentage compared to 35.5% of countries that have signed the Rome Statute. Even without the statistical significance to back my hypothesis, the data alone shows a
93 pa ttern. Countries that have signed the Rome Statute do not have as much civil conflict as those that have not. Internal Hypothesis 3 : Rule of Law and autonomy of the judiciary. The more established and functioning the domestic court system is the less like ly the state will be to sign the Rome Statute. For the third hypothesis I again examined data from the Mo Ibrahim index, this from the Bertelsmann Transformation Ind ex (BTI). The data is based on the extent of judiciary independence in the country, referring to how much courts can interpret and review norms and pursue their own reasoning free from the influence of rulers or powerful groups. The index measures how diff erentiated the legal system is from other sectors of the government and groups and the overall functioning of the judicial system. The data comes from 2008/2009, and is ranked from 0 100. The ranks are ordered with 0 indicating the lack of all judicial ind ependence and a legal system, and 100 indicating the best and a high amount of judicial independence. I used this data as an explanatory variable against the Rome Statute variable. Here are the results for hypothesis 3: Wilcoxon Scores (Rank Sums) for Var iable Judicial Independence Classified by Variable RS RS N Sum of Scores Mean Score 0 17 247.50 14.559 1 26 698.50 26.865 Chi Square 10.1790 DF 1 P Value 0.0014 =22% The null hypothesis for the third hypothesis is that there is no relationship between the judicial independence of a country and whether the country has signed the Rome Statute or not. The P Value for this statistical test is .001, which is under the .05
94 criterion and actually achieves a more rigorous standard, meaning there is statistical significance. With statistical significance the null hypothesis is rejected, indicating that there is in fact a relationship between the amount of judicial independ ence in the domestic court system and whether or not the country has signed the Rome Statute. However, just because the null hypothesis is rejected does not necessarily make the hypothesis true. In actuality the data shows that my hypothesis is incorrect as well. The inverse of my hypothesis is proved correct with the data analysis. The correlation test shows that the more independence a judicial system has, the more likely the country will be to sign the Rome Statute. Out of the seventeen countries that have not signed the Rome statute the mean value is 14.6. The mean value for the twenty two countries that signed the Rome Statute is 26.9, a difference of 12.3 between the two groups. The higher mean score of the countries that have signed the Rome Statute shows that my hypothesis is incorrect. However, it shows that countries with a better functioning domestic court system are more likely to sign onto the international court system. The eta squared is 22% for this hypothesis, proving there is both a strong correlation between the two variables, and a heavy weight of explanatory power. The explanation for why countries with a better domestic court system would be more likely to sign the Rome Statute as opposed to not signing may seem irrational. However, a fter taking into consideration the countries that have signed the Rome Statute it is not completely surprising. The domestic court system is better functioning in these countries and with the superior legal systems; the government of the state may
95 have mor e faith in the judicial process, and may see value or merit in having an international court system. Internal Hypothesis 4 : Corruption in domestic government. The more the corruption in the government, the less likely it will be to sign the Rome Statute For the fourth hypothesis I once again used data from the Mo Ibrahim Index. The was ranked from 0 100, where 0 presents poor transparency and high corruption and 100 repres ent the opposite. The data was compiled from the African Development Banks (AfDB), the International Bank for Reconstruction and Development, The World Bank, Country Performance Assessment (CPA) from AfDB, and International Development Association resource allocation index (IRAI) from the World Bank (Mo Ibrahim 2010 Data Set). The data assesses the extent to which executives and elites can be held responsible and account for the use of resources and for administrative decisions. Transparency is measured thr ough the level of transparency in the decision making process, public audit institutions, access to information, and public and media scrutiny. I used this variable as an explanatory variable for why a country has or ha s not signed the Rome Statute. Here are the results for hypothesis 4: Wilcoxon Scores (Rank Sums) for Variable Transparency and Corruption Classified by Variable RS RS N Sum of Scores Mean Score 0 22 478.50 21.750 1 31 952.50 30.726 Chi Square 4.4070 DF 1 P Value 0.0358
96 The null hypothesis is rejected for my fourth hypothesis because there is statistical significance between the two variables. The P Value is .036, which is below t he .05 criterion, showing that there is indeed statistical correlation between signing the Rome Statute and transparency and corruption within a state. My hypothesis is proven correct in that countries with more corruption are less likely to sign the Rome Statute. The countries that have signed the Rome Statute have less corrupt governance and are more transparent. This relationship can even be seen with the differences in the mean values between those that have signed and those countries that have not sig ned the Rome Statute. The mean score for countries that have not signed is 21.8, for countries that have signed the mean score is 30.7, demonstrating that countries that have signed the Rome Statute are more likely to have a higher or better score for tran sparency and lack of corruption within the state. The eta squared is 7%, indicating that there is a strong relationship. An explanation for the correlation is simple: due to the structure of the ICC, a more corrupt government could possibly come under pro secution from the ICC. A more transparent government will be less corrupt because there are more checks and more eyes watching the executive branches to ensure honesty. Honest officials have less to hide from the jurisdiction of the ICC. Internal Hypothesi s 5: Type of regime. If the government is authoritarian, it will be less likely to sign the Rome Statute For the fifth hypothesis, the data used comes from the Mo Ibrahim Index using the variable ranked from 0 10, where 0 2 signify autocratic rule, and 3 10 are more democratic, with 10 being full democracy. The data comes from
97 measures through how well the democratically elected rulers have the power to govern (Mo Ibrahim 2010 Data Set). The elected powers that are assessed in the measurement are those of the president or head of government in parliamentary system. The countries that did not have democratic elections or fulfill minimum democratic requirements (such as an election) are designated scores of 0 to 2. The countries that have a score of 0 2 are autocratic and even, if they have minimal democratic features, they are in no way a consolidated democracy. I used a Mann Whitney U test to ass ess whether there is a correlation between the Effective Power to Govern and the Rome Statute. Here are the results for hypothesis 5: Wilcoxon Scores (Rank Sums) for Variable Effective Power to Govern Classified by Variable RS RS N Sum of Scores Mean S core 0 17 211.50 12.441 1 26 734.50 28.250 Chi Square 16.9088 DF 1 Pr > Chi Square <.0001 The null hypothesis is clearly rejected with a P value less than .0 001. Showing there is statistical significance between the two sets of data and a strong correlation between the two variables. The eta squared shows how powerful explanatory weight is between the two with a 39 %. Every country that is not a State P arty of the ICC, except Mozambique with a score of 8 and Angola with a score of 3, is not democratic. Only four countries that have signed the Rome Statute scored either a 1 or a 2. Although there are the few exceptions, all other countries follow the pattern of m ore democratic ideals, more likely to sign the Rome Statute.
98 This is probably one of the most important factors and correlations in the set of hypotheses. Most of the hypotheses could also be considered ways to measure how well a democracy is functioning. For example, the correlation found between judicial independe nce and whether a country is a State P arty of the ICC is not surprising considering how important a judicial system is in a democracy. Judicial independence is closely tied to rule of law; rule of law is a basic indicator of how democratic a country is. The better the rule of law and judicial independence is, the more democratic qualities a country will have. The ICC is an institution of democratic values by nature. Countries that are more democ ratic in Africa will undoubtedly be more supportive of such an institution, although this is not necessarily the case worldwide. External Hypothesis 6 : Neighborhood effect. If the surrounding countries have signed the Rome Statute, the country will be mor e likely to sign as well. For the sixth external hypothesis, I measured the influence neighboring African used length of shared borders as a factor. Other largel y influential factors such as trade and cultural influence were not used in this analysis. The data used for this hypothesis came from the CIA World Factbook. I added the total length of the border of each country in Africa and divided the lengths of the b order into two separate categories. The first category is African countries that have signed the Rome Statute and the second is African countries that have not signed the Rome Statute. I then turned the length of each category into a percentage of the enti re border length. With the calculated percentages, I then ran a Mann Whitney U non parametric procedure to determine
99 Rome Statute. Here are my results for hypothesis 6: Wilcoxon Scores (Rank Sums) for Variable Ratified Rome Statute Percentage Classified by Variable RS RS N Sum of Scores Mean Score 0 21 448.0 21.333 1 27 728.0 26.963 Chi Square 1.9210 DF 1 P Value 0.1657 The null hypothesis stating that there is no correlation between the percent of shared borders between countries that have signed the Rome Statute is retained because of the P value of .166, showing there is no correlation between the two variables For this correlation, I am attempting to show that countries with a higher percentage of shared borders of countries that have signed the Rome Statute will be more likely to sign the Rome Statute as well. The eta squared of 2% shows there is some weight between the variables but not much. However, these results may be due to the nature of the data and the issues with operationalizing the data for this hypothesis. The data does not take into account anything besides length of shared borders. When looking at a map with countries that have or have not signed the Rome Statute (see map 3.1), it is clear there are regions that are more accepting of the ICC. For example, most Sub Saharan countries have in fact signed the Rome Statute. Most northern African coun tries have not signed the Rome Statute. Even with the patterns, like most of the hypotheses, there are anomalies to the patterns. For example Angola is completely
100 Map 3.1 Africa n States by Membership in the International Criminal Court Key Shaded co untries States Parties of the ICC White countries non signatories of the ICC surrounded by countries that are States Parties of the ICC. However, Angola is not a member of the ICC. Djibouti is an opposite case study. Every African country surrounding Dji bouti is not a member of the ICC; however, Djibouti is a State Party of the ICC. These anomalies show that this hypothesis cannot be applied to every country and region in Africa. Rather, it is a pattern that most countries follow.
101 External Hypothesis 7: International Tension. If a country is involved in an interstate conflict or is likely to be involved in external conflict in the future it will be less likely to sign the Rome Statute For the seventh hypothesis, I used data from the Mo Ibrahim index that operationalizes the tensions each African country has with other countries in the world. The data comes from the Economist Intelligence Unit (EIU). It measures the potential threat each African country faces for interstate conflict and sanctions on a 0 10 0 scale, where 100 indicates good international relationships. As with other variables, I used a Mann Whitney U non Parametric procedure to determine whether the hypothesis is valid or not. Here are the results for hypothesis 7: Wilcoxon Scores (Rank Sums) for Variable International Tension Classified by Variable RS RS N Sum of Scores Mean S core 0 22 545.50 24.795 1 31 885.50 28.564 Chi Square 0.8278 DF 1 P Value 0.3629 The null hypothesis for hypothesis seven is retained, as there is virtually no correlation between international tensions and whether or not a country has signed the Rome Statute. The P value is very high at .4, indicating no significance. Also, the eta squared value of .3% confirms that the relationship between the variables is weak and does not hold much weight. Some countries that score very low on international tensions (i.e., have h igh instances of conflict) have still signed the Rome Statute and some peaceful ones have not. It is surprising to see such results, considering that the ICC is capable of settling international disputes. However, the mean scores of countries that have sig ned and have
102 not signed the Rome Statute are different. Countries that have signed the Rome Statute, have a higher mean score of International Tensions, meaning those countries with less international tension are more likely to sign the Rome Statute. None theless, the pattern is not strong enough to show a solid correlation. Since, the majority of conflict and who have committed some of the worst crimes in the world ac countable for those actions, the lack of a correlation with interstate conflict may be accurate. The ICC so far has only prosecuted cases out of Africa and those cases occurred in mostly civil conflict. If one uses previous cases of the ICC as an indicator for future cases, the prosecutor is mostly looking at nature of violence, and whether conflicts are civil or interstate does not play as significant a role in the operation of the ICC. Also, if a prosecution brought to the court actors in a transborder co nflict, both countries involved would need to be States Parties in order for the ICC to exercise jurisdiction. External Hypothesis 8 : Salience of the US. The closer relationship with the US, the less likely a state will be to sign Rome Statute. To operat ionalize external hypothesis 8, I used data from the U.S. Census Bureau, shown in milli ons of dollars. The thought behind choosing foreign aid was that it would exemplify the relationship that the United States has with each country in Africa. The more aid the U.S. provides to the country, the more influence the U.S. will have on domestic po litics. The fact that the U.S. has not joined the ICC might then influence states dependent on it to take the same position. Due to the nature of the data, I again
103 used a Mann Whitney U non parametric test to assess this hypothesis. Here are my results for hypothesis 8: Wilcoxon Scores (Rank Sums) for U.S. Aid Classified by Variable RS RS N Sum of Scores Mean S core 0 22 520.50 23.659 1 31 910.50 29.371 C hi Square 1.7605 DF 1 P value 0.1846 After running the correlation, the null hypothesis is retained due to the P value =.19, which does not meet he criterion to show significance between the explanatory variable and Rome Statute variable. There is no statistical significance, and the extremely low eta squared 2% confirms the lack of relationship and weight of the explanatory variable. The results are a little surprising, especially considering United States objections to the ICC at the time the data was recorded. However, just becaus e this correlation is not significant does not mean there is not any truth behind the hypothesis. The three countries with the highest amount of financial and military aid from the United States in 2005 are Rwanda, Egypt, and Ethiopia, all Northern Afric an countries that have not signed the Rome Statute. Egypt received 1563.2 million dollars; Rwanda received 1263.6 million dollars, and Ethiopia received 693.5 million dollars. The fourth highest amount of aid amount went to Kenya with 244 million dollars, a country that is a State Party of the ICC. For the countries that are members of the ICC, Kenya had the highest amount of aid from the U.S. There is a 1319.2 million dollar difference between the amounts of aid given to the two highest paid countries in e ach category. Also, even with a lesser number of countries that have not signed the Rome Statute, the sum of all
104 aid from the U.S. to countries that have not signed the Rome Statute is 4071.7 million dollars, while the higher number of countries that have signed the Rome Statute only received a total of 1914 million dollars in aid from the U.S.. Although there is no statistical significance, the distribution of aid seems to have a clear pattern. Why is the United States giving on average more aid money to countries that have not signed the Rome Statute? Here we would have to weigh this factor against others both in determining aid from the U.S. and determining decisions about the ICC. External Hypothesis 9: Relationship with the IMF and World Bank. The more money the country is receiving from the IMF and World Bank the more likely they would be to sign the Rome Statute. The data I used for my final hypothesis comes from the most recent current account balance from the International Monetary Fund (IMF) repo rted in the Balance of Payments Statistics Yearbook and data files, and the World Bank and OECD GDP. Due to the nature of the data, and as with all the other explanatory variables, I used a Mann Whitney U non parametric procedure to distinguish whether the re is any significance between the current account balance and the Rome Statute variable. Here are the results for hypothesis 9: Wilcoxon Scores (Rank Sums) for Variable IMF Loans Classified by Variable RS RS N Sum of Scores Mean Score 0 22 630.50 28.659 1 30 747.50 24.917 Chi Square 0.7741 DF 1 P Value 0.3790 .5% The null hypothesis is retained saying there is no relationship between the account balance and whether or no t the country has signed the Rome Statute. The eta
105 squared is extremely low at only .5% confirming the lack of a relationship between the two variables. The reason for the lack of relationship is not at all surprising considering how much aid and loan mo ney IMF and the World Bank have given to every country in Africa. Although the IMF and the WB have conditions for the loans they give, there is no stipulation involving the ICC, as there is with the EU. Also, the stipulations are the same regardless of how much aid is given, so the amount of aid does not influence involvement in the ICC. Interpretation From the statistical tests that were done on the nine hypotheses it is clear that the internal hypotheses held more weight and significance than the exte rnal variables (see table 3. 1 ). Three out of the five internal hypotheses showed strong significance, and one was approaching significance. The three hypotheses that show significance indicate a strong relationship between the explanatory value and the Rom e Statute variable. Unlike the internal hypotheses, all four external hypotheses did not show statistical significance falling under the .05 criterion. However, as I explained in the results a significant lack of correlation does not necessarily mean there is no relationship; a number of operational and methodological issues could have affected the results. Based solely on my statistical analysis, though, internal factors are more influential in rty of the ICC.
106 Table 3.1 Hypotheses and Significance Hypothesis P Value Significance Hypothesis 1: Repression by the state 0.0852 Approaching Significance Hypothesis 2: Intrastate conflict 0.4837 No Significance Hypothesis 3: Domestic judiciary 0.0 014 Significance Hypothesis 4: Corruption 0.0358 Significance Hypothesis 5: Regime Type <0.001 Significance Hypothesis 6: Neighborhood effect 0.166 No Significance Hypothesis 7: International tensions 0.362 No Significance Hypothesis 8: Salience of th e U.S. 0.1846 No Significance Hypothesis 9: Financial institutions 0.3790 No Significance Since each correlation was run individually we cannot determine the actual weight of each factor relative to the others or to untested factors. Also, correlations do not determine which way causal arrows may flow. Still, these results suggest relationships we might want to study in greater depth. The internal factors that appear to have the most weight in explaining whether a country has or has not signed the Rome S tatute are also democratic values and can be considered to be indicative of how democratic a country is. How well a country scored in democratic governance was the biggest indicator of the likelihood for a country to sign the Rome Statute. The other intern al hypotheses could be considered measurements for how well a democracy is functioning. Countries that score poorly on history of violence and repression in the state, the first variable tested, are lacking democratic governance. A multiparty system is a fundamental democratic goal. The ability for parties to compete without repression is a basic defining factor of democratic governance. If political repression exists to a
107 great extent, it is clear a country is not very democratic. This hypothesis was oper ationalized by using political repression indexes. Although there was not strong significance to prove that political repression could be a determining factor in whether a country agrees to sign the international court system, the analysis showed some sign ificance. I believe the significance of this correlation might be explained by how democratic the country is. The second hypothesis dealing with civil conflict did not show any significance. While on its own civil conflicts might influence a decision on the ICC in various ways, it is not a direct indicator of how democratic a country is. However, conflict can occur in democratizing states, especially poor ones. Hypotheses three and four, the domestic judicial system and corruption are also related to dem ocratic conditions. The better the internal court structure and rule of law a country has the more consolidated a democracy will be. Without a rule of law, a democracy cannot exist. Additionally, corruption can completely negate democratic progress in a co untry. Transparency within a government is essential to a democracy and it requires some of the institutional checks characteristic of a democracy. A democracy is meant to represent the desires of the citizens. Without transparency citizens are not able to ensure their wishes are being carried out by the government. It is not surprising at all that hypotheses three and four show strong significance. Hypothesis five, the type of regime a country had was by far the strongest explanatory variable for why a cou ntry signed or did not sign the Rome Statute. Autocratic regimes could open themselves to prosecution. Countries ratifying the ICC are showing the world they want to have accountability for actions and want to
108 progress into a democratic society. Autocratic countries want to maintain power without interference; most likely, if a country signs the Rome Statute it is trying to move toward a more democratic regime. I was surprised by the lack of significance in the external variables. Even with democratic cond itions assumed in loan money from international financial institutions, the influence of these institutions does not seem to influence or alter decisions of countries to join the ICC. The neighborhood effect did not show statistical significance for count ries that have signed the Rome Statute, but the data used, does not take into account many important factors and only takes into account geography. Data that would include cultural, economic, migration, and historical factors would give a more accurate des cription and definition for neighborhood effect. The most important external hypothesis, even without statistical significance comes from salience of the U.S. It is clear that the United States is giving more aid to countries that have not signed the Rome Statute, although we do not know whether that is an explanation for either aid patterns or a country decision to join the ICC. The data collected for hypothesis nine came before the changed attitude of the United States toward the ICC. Surely, the U.S. is not only giving aid to countries that have not signed the Rome Statute, but it is interesting that the amount of aid they are giving to those countries increased substantially. Unfortunately, the data and analysis cannot be applied to all countries in A frica or the world. Africa is a unique continent in the establishment of the ICC. The cases investigated are all coming from Africa and Africa has more states parties than any other
109 continent. Even with such unique characteristics, all countries do not fal l into a specific pattern. The domestic situation of a country has proved to be the best indication of policy towards the ICC, but even so it is not a uniform pattern. There are anomalies in every pattern. Furthermore, Africa is unique in that the countr ies in Africa are changing and the data found for each country was not consistent. In some data sets, Western Sahara was considered a country; in others it was not. Somalia is another example where data was incomplete. I used 54 countries in Africa in my d ata and analysis because it is the most widely accepted number of countries in Africa; however, there are many other territories and islands that are not necessarily countries. The data used came from multiple sources, mostly from the Mo Ibrahim index, an d because of the ordinal nature of the data I collected I only used the Mann Whitney U test in my results. If the data was more complete the analysis would be more accurate; however, I doubt it would change the results completely. What it Means The compr ehensive study on Africa and the ICC was meant to explain or present possible patterns for why countries in Africa have or have not signed the Rome Statute. I believe I was successful in showing possible patterns that countries with a more democratic agend a are more likely to sign the Rome Statute. Regional explanation shows more accurate patterns than a generalized African pattern. For example, most northern African states have not signed, most sub Saharan African countries have signed, and many western an d southern African countries have signed as well, but not all. The
110 patterns are not fully consistent across regions. However, some of the regional variations, like in Northern Africa, are not surprising because of the nature of governance. Most Northern Af rican countries are considered to be more Arab states than African states and have autocratic or authoritarian regimes. Although the study only considers African countries, the patterns can be applied to other continents as well. The patterns of develo ping countries with a more democratic agenda being more likely to sign the Rome Statute can be studied outside of Africa. The same can be said for regional patterns. Countries in a region where more are likely to accept the jurisdiction of the ICC will be more likely to sign as well. As this study on Africa showed, there will always be anomalies. Just because a country has a more democratic agenda or exemplifies other qualities that would seem to make them a State Party of the ICC, it does not necessarily mean they will sign the Rome Statute. Accountability for actions and justice to victims are extremely important in transitioning societies. In a world where international law and legal structures are gaining precedence, the International Criminal Court i s becoming one of the most important international institutions. There are undoubtedly issues with such an institution, but in a globalizing world such a system is needed to uphold justice when justice is not being served. Understanding patterns for why co untries in Africa have or have not signed the Rome Statute will help those who wish to create conditions that encourage states to join. The more countries that sign the treaty, the more countries can contribute to accountability for human rights violations
111 understandable. Punishing criminals that have committed genocide or othe r major human rights violations is necessary where a domestic court or government has failed to do so. The more countries in the world that become States Parties of the ICC, the more effective the ICC will be in creating accountability and upholding basic human rights. If my analyses of patterns are correct, more democratic values will need to be implem ented into autocratic systems, and weak democracies will need to become more consolidated if Africa wants to end i mpunity and create accountability through either domestic or international judicial systems.
112 Chapter 4: Conclusion Many questions arise when implementing a transitional justice program in a country. The questions asked usually deal with the type of crime committed, the capacity of the domestic government, the type of transition the country is going through and elationship with the international community Ultimately, the success of a transitional justice mechanism is not solely based on the approach used. Factors besides the type of transitional justice apparatus are typically more important indicators of the ul timate success of the program. Also, a major feature that is sometimes overlooked in the implementation of programs is the preference and transitional justice mechanisms, but of the country where the program is implemented. How the international community assesses a mechanism will not always be congruent with an internal valuation of the program. From an international perspe ctive, a mechanism can be considered successful if it brings the development of certain norms or international cooperation. The victims however, want justice and usually some form of reparations. The three studies presented here examine how different tran sitional justice mechanisms are established
113 and how they affect the countries in which they are implemented. Sometimes justice will be more important than reparations sometimes reparations will be more important, and sometimes the priority will be to find a way to move on without threatening stability. The three studies are similar in that they examine transitional justice mechanisms. However, they are dissimilar in that each offers a unique angle that ultimately cannot provide a generalized conclusion or experience to all transitional justice mechanisms. Even the evaluation of the ICC in Africa cannot provide definite answers for why countries have chosen to sign the Rome Statute, because ultimately there are too many factors that can dissuade or push a co untry to sign the treaty. Democracy and International Intervention One of the themes that can be seen across all three studies is the importance of how democratic the African country was during the implementation of the transitional justice appara tus. Furthermore, all touched on how the international community has influenced the democratic transitions that occurred starting in the 1990s. Most studies of comparative politics use the nation state as the primary unit of analysis. Even with complex set s of international influence, domestic factors ultimately prove to be the most fundamental and important elements shaping governance. Still, explanations of the domestic political dynamics require reference to influences emanating from external factors (Br atton and van de Walle 1997, 27). The widespread wave of transitions in Africa had both positive and negative examples of regime transitions. South Africa proved to be a more successful case of regime transition, where Rwanda experienced a blocked transiti on where democratic foundations were never implemented before the
114 conflict and are still being built now In order for a change in government to occur in most of these cases, a few domestic conditions were crucial, creating a widespread desire for transfor mation of governance and generally protests by civilians to challenge the ruling authoritarian governments. One of the defining elements of international involvement prior to the period of democratization attempts in Africa, was the relationship of the su perpowers with the continent. The Soviet Union and the United States used African states to their advantage. The superpowers of the bi polar world suppor ted authoritarian regimes, if they proved to be beneficial. After the collapse of the Soviet Union, Afr relationship with the U.S. and Russia deteriorated greatly. During the same time period, the revolutions in Eastern and Central Europe starting in 1989 sparked interest for a change in governance around Africa. Some scholars attribute the main driving force behind democratization in Africa as coming from external influence. Political change through diffusion of ideas is one of the most well known themes of outside influence. In terms of the revolutions in Africa, it could possibly explain w hy the majority of political change happened from 1990 onward. The timing of the revolutions implies shared responses to an external stimulus of change. The collapse of communism and the end of superpower rivalries undoubtedly constituted one of many facto rs that both changed the conditions on the ground (e.g. through loss of aid) and changed the perspective of Africans regarding their governments. However, if external influence were the main determinant for revolution and change, it would mean the outcome s across the African continent would be the
115 same. Instead, the transitions across Africa in the 1990s were divergent. The dissimilar paths taken imply that external factors were not the only stimulus and certainly not determining constraints in molding the transitions. As seen with the transitional justice mechanisms it was not just ex ternal factors that made a transitional justice program effective. Domestic governments and political processes mediated the impact of external influence, and the cooperative relationship between international and domestic actors also proves to be fundamental to the success of a transitional justice program. It is no surprise that international factors help mold transitions to democracy. However, domestic factors remain most importan t in a democratic outcome (Bratton and van de Walle 1997, 220). The international community can only help to a point. During a transition, there will be a time when it is the national government and the ansition to the full extent of democratization. In some cases, like Rwanda, the transition to democracy was blocked by the major powers within the government (Bratton and van de Walle 1997, 120). The major powers did not want to lose control and ultimately started genocide. In the post genocide efforts to establish democratic rule, the international community attempted to aid the country by establishing the ICTR. The constraints of instability and lack of democratic values by the Rwandan government have hin dered the progress of the ICTR in creating accountability and reconciliation. Even in a world where international legal norms and intervention are becoming more widely accepted, international involvement in a domestic government may not
116 always be the best like Rwanda, though if the international community had failed to intervene in the aftermath of the genocide as they did during the genocide the consequences would have been e ven more problematic. T here is consensus that intervention in Rwanda was necessary. Sometimes in catastrophic situations, international intervention is needed, regardless of wheth er it strengthens democracy. International actors are not going to intervene under the premise of establishing democracy H owever, if a country has a more democratic agenda, the transitional justice mechanism used will mostly likely be more successful. I n Rwanda, the international community intervened first and foremost because of the genocide and lack of capacity of the government. Through the mandate set forth in the Geneva Convention, the ICTR was obligated to aid in bringing justice to criminals. The structure of the ICTR inherently supports the rule of law necessary for democracy, and, although it was not explicitly developed for democratic purposes, the tribunal is trying to fulfill a democratic agenda in Rwanda. Even the formation of the local Gacac a courts encourages Rwandan people to voice their concerns openly. T he Gacaca courts resolution process as opposed to violence (Wierzynski 2004, 1934). The Gacaca process demonstrates th e potential for democratic debate without the eruption of violence. The discussion of international influence during democratic transitions is relevant because of the roles of the international community and democracy in
117 implementing transitional justice m echanisms. From all of the studies in the portfolio, the more successful cases of transitional justice mechanisms have proved to have a democratic agenda. South Africa was transitioning out of an authoritarian regime and attempting to democratize. The tra nsitional justice mechanism used was decided in hopes of assigning responsibility for long term persecution and moving on from the past to become a functioning democracy. The situation in Rwanda was not based on the need to transition into a democracy, al though Rwanda could certainly use help in democratizing. The i n ternational community was attempting to use rule of law to aid in the aftermath of the genocide and ensuing conflict. The primary focus was stability and accountability of leaders of the ge noci de. While the government holds elections, President Kagame has blocked potential threats to his rule and the expression of many grievances; thus his regime falls short of a democracy. The Rwandan government is not the only body that has failed to meet expe ctations following the genocide; the ICTR has also been a disappointment. With respect to the ICC, countries that are most likely to see benefit from joining the international court are those countries that have a more democratic agenda. Although transitio nal justice mechanisms are meant to help countries regardless of the regime type, they are clearly designed to help countries willing to establish the rule of law and democratize with the assistance of the international community. Regime Transition and S uccess or Failure of Transitional Justice The success of the transitional justice mechanism is largely determined by the condition of the country prior to the implementation of the program. The TRC
118 succeeded in large part because of the stability of the go vernment. As Bratton and Van de Walle discuss, the South African transition is exceptional and is distinctly non African (Bratton and van de Walle 1997, 257). Although South Africa was coming out of a violence prone government and experienced racial segreg ation, the type of conflict and the overall st a bility of South Africa allowed for a peaceful and successful TRC. Even so the delay of the government in follow ing through on reparations has weakened the potential impact of the TRC for assuring justice. Unl ike South Africa, Rwanda experienced a neo patrimonial re gime where tensions we re exacerbated by the presence of subnational ethnic identities. Also, the atmosphere of the Rwanda government prior to the implementation of the ICTR was chaotic. Some argue th at the onset of the civil war was intensified due to a desire to have a multi party system and make attempts to democratize. In reality the Rwandan government was not trying to democratize, and following the genocide, the country was in shambles. Another factor working against Rwanda is its lack of wealth. Resources are important for building institutions, effective judicial processes, and reparations. Reparations are essential to successful transitional justice mechanisms. The ICTR did not have a reparati ons program, and the TRC was not responsible for administering them in South Africa The South African government did not have the economic stability to dispense the reparations on time, whereas the Rwandan government did not have the money for reparations and was not required to give reparations to victims. An improvement of the ICC from the ICTR is the inclusion of reparations to victims. Most successful democratic transitions have a peaceful pro democracy agenda; once again
119 Rwanda never had this. Withou t sufficient funding and democratic foundations the ICTR was pre conditioned to fail; in its bid to bring justice and move Rwanda beyond the divisive leg a cy of the conflict. Countries that are using the ICC as a means to administer justice need to suppo rt the rule of law and accountability The procedure of the ICC is to hold trials outside of the country involved. The distance of the trials from the country and international funding for the ICC allow nations with less wealth to achieve accountability. T he strongest correlation found between any of the explanatory variables and the proclivity to sign the Rome Statute was for the variables measuring how democratic a country is. A condition to signing the Rome Statute is including jurisdiction of the ICC o ver some forms of the domestic judicial system. Justice and rule of law are some of the most basic forms of democratic governance. Although South Africa is a questionable democracy by most standards, it provides a positive example of a transition. South A international community was beneficial not just for the democratization of the country but also for the TRC. The TRC was not explicitly run by international actors, but they undoubtedly influenced and helped build the TRC. Mem bers of the TRC also studied and visited several Latin American countries that had used Truth Commissions to get a better idea of how to implement the TRC (Pankhurst 1999, 239). In turn it was considerably successful. The ICTR was run by the international community; without deep connections in the national system, the international tribunal could not serve as a building block for Rwandan justice system. Its external actors and norms were also
120 distan t from Rwandans own legal processes and sense of justice. In the ICC, the internal hypothesis that proved to have greatest statistical significance maintained that the more democratic a country is in Africa, the more likely it will be to sign the Rome Statute. The reason for this correlation is because of the dem ocratic values embedded in international institutions The countries using those tribunals and the ICC as transitional justice mechanisms must have faith in the rule of law and trials that function the way legal systems do in democratic countries, in order for the justice to bring peace. Another major factor in the success of the transitional justice mechanisms is the crimes that are being tried. The Rwandan genocide is one of the worst atrocities the world has ever seen, one of the darkest moments in the history of mankind. It also occurred in a short period of ti me. The crimes committed under a partheid were not as condensed in time and horrifying as the crimes of the genocide, and they were deeply entwined in a long standing governmental system. Although amnesty is a highly controversial topic, the use of it in the TRC is more acceptable than if it were used in the ICTR. The ICTR is trying only leaders, and responsibility has to incur punis h ment to serve the needs of justice I n fact, one of the biggest te nsions between the ICTR and the Rwandan government has been over capital punishment. Given the magnitude of the crimes committed, the lack of a viable democracy, and a contentious relationship between the Rwandan government and the UN, the ICTR was assigne d an almost impossible task. The willingness of South Africa to move on and democratize, and the fact that the ultimate authority of the TRC was domestic as opposed to international,
121 made the TRC more legitimate in the e yes o f the citizens than is the ICTR It also allowed the TRC to serve more effectively as a building block for the new South Africa. Peace through Justice An additional element that is covered through all three papers is the assumption that justice will create peace. The ultimate goal of transitional justice is bringing accountability to perpetrators. The type of accountability is dependent upon the situation. In post typically answered through political negotiations an d compromise (Pankhurst 1999, 241). The international community has intervened after political and human rights emergencies more to promote justice than to promote reconciliation (Pankhurst 1999, 254). The a s sumption of these actors is that justice will br ing reconciliation. However, justice is not a sure route to sustainable peace. Reconciliation requires forgiveness and the establis h ment of conditions for long term peace, which should be the ultimate goal of post conflict countries. In South Africa pub lic acknowledgement of the crime was the route chosen to bring accountability. It was more successful for many reasons, but a major reason was hearings were held in such a way that made th ose on trial speak as is if they were admitting guilt and trying to obtain reconciliation. In many respects, the success of the acknowledgment of accountability was through the Christian like forgiveness embedded into the TRC. There has b een a lot of scrutiny over the inclusion of Christian ideal s, but it seemingly worked. The ICTR trials were not held for the people to forgive; they were
122 meant to punish and prosecute perpetrators. Forgiveness has been delegated to the Gacaca courts, whose functioning and outcomes raise another set of issues. The emphasis on justice as opposed to reconciliation in the ICTR is largely due to the influence of the international community. However, the circumstances were so different from that of South Africa, that a truth commission in Rwanda may have created a worse problem than a tribunal. Nonetheless, while peace may need to be built on a foundation of justice, justice does not necessarily bring peace, and the ICTR is an example of that disjuncture. What Wa s Learned Transitional justice through international intervention or influence from transnational actors is still a very new subject in comparative politics and international affairs It is becoming more widely used and accepted because of the changing na ture of the world. However, its more widespread use does not necessarily mean that it will work in any given situation. Before the international community intervenes through a transitional justice program, there needs to be an evaluation of the domestic si tuation, both politically and socially. Without a democratic agenda, involvement from international actors through a worldwide institution may become a difficult and in effective task. If a country is dealing with horrific crimes like genocide, maybe there should be equal emphasis on reconciliation as well as justice. The domestic situation and the crimes being accounted for are the most important elements guiding the implementation of a program.
123 When evaluating the transitional justice mechanisms reviewed in the studies here, it is important to remember the lens that is being used in the assessment. Not only am I looking at the programs critically, but I am also gauging their success in retrospect. It is always easier to see the faults in a program after t hey have already occurred. The TRC, the ICTR, and ICC are all experimental. Especially in the case of Rwanda, it is easy to point out the flaws in the program, but, at the time it was faced with the task of creating accountability after the genocide, was t here evidence to suggest that the ICTR would not be successful? We learn from the mistakes of the past, and the ICTR did not have many exa mples to learn from. The N rembe rg Trials and the ICTY gave the ICTR some guidance, but the cond i ocide and the resource constraints presented new challenges. The TRC made extensive efforts to learn from mistakes made by truth commissions in other continents, and adapted them to the conditions of South Africa, which, one can argue contributed to its su ccess. The ultimate goal of any of these mechanisms is sustainable peace. Although the TRC is considered to be a success, there were still issues with it; no mechanism is perfect. I am hopeful that the more we learn from attempts at acquiring peace throug h a transitional justice mechanism the more successful those mechanisms will be, and Africa as well as the rest of the world will experience peace.
124 Bibliography < ht tp://www.icc cpi.int/menus/icc/ about%20the%20court/about%20the%20court?lan=en GB> Allan, A., M. M. Allan, D. Kaminer, and D. J. Stein. Beh avioral Sciences & the Law 24 (1): 87 102. Third World Quarterly 24 (3) (Jun.): pp. 479 493. Criminal Court: The Human Rights Law Review 6:3 . Pu b lished by Oxford University Press. In Truth v. Justice: The Morality of Truth Commissions edited by R. I. Rotberg and D. Th ompson. Princeton, NJ: Princeton University Press. Racial Democracy. Words Over War: Mediation and Arbitration to Prevent 260. Bratton, Michael, and N icolas Van de Walle. 1997. Democratic Experiments in Africa: Regime Transitions in Comparative Perspective Cambridge Univ Pr. International Panel of Eminent Personalities Sriram, Chandra Lekha. 20 Annual Convention of the International Studies Association. CIA World Factbook : Africa. https://www.cia.gov/library/publicatio ns/the world factbook/region/region_afr.html of Conflict Resolution 46 (1): 13.
125 I nternational Institutions: Bringing System Structure Back In Studies Review 10 (3): 501 24. 9, 2009. Human Rights: The World Affairs Blog Network
126 The Journal of Conflict Resolution 46 (1, Understan ding Civil War) (Feb.): pp. 111 130. The Journal of Politics 65 (1) (Feb.): pp. 1 30 Gibson, James L. 2 Inter national Political Science Review / Revue Internationale De Science Politique 26 (4) (Oct.): pp. 341 361. of American Journal of Political Science 46 (3) (Jul.): 540 56. Journal of Democracy 9 (4): 128 42. Graybill, Lyn. 2002. Truth and Reconciliation in So uth Africa Lynne Rienner Publishers, Inc. Boulder Colorado. Hamber, Brandon. 1999. Have No Doubt it is Fear in the Land": An Exploration of the Continuing Cycles of Violence in South Africa. Centre for the Study of Violence and Reconciliation Harbom, Journal of Peace Research 43 (5) (Sep.): pp. 617 631 Hathaway, Oona A., and Harold H. Koh. 2005. Foundations of International Law and Politics Foundation Pr. In ternational Center for Transitional Justice Criminal Justice. The International Criminal Court. < http://ictj.org/en/tj/781.html> t the University of Lund in Stora Salen, Lund, on 31 Sponsored Mass Murder: The Onset and Severity of The Journal of Conflict Resolution 41 (3) (Jun.): pp. 331 360.
127 Koh, Harold H. and Stephen Rap Washington DC. June 15, 2010. Foreign Affairs 79 (1) (Jan. Feb.): pp. 94 118. Lauter Eyes ICC 5 no1 2008/2009. Polity 36 (1) (Oct. ): 23 51. Peace Review 21 (3): 304 12. sharing 7 (1): 67 81. y of Retributivism in The University of Toronto Law Journal 389 445. Issue: A Comparison between the ICTR and the ICC on the Rights of the Victims Case Western Reserve University School of Law International War Crimes Research Lab. Fall 2003. http://law.case.edu/War Crimes Research Por tal/memoranda/WitnessRights.pdf Mo Ibrahim Foundation: About Mo Ibrahim Foundation http://www.moibrahimfoundation.org/en Mo Ibrahim Foundation 2010. Ibrahim Index of African Governance. Published October 11th, 2010.
128 Commission South Africa: Thick and Thin Canadian Journal of Political Science / Revue Canadienne De Science Politique 35 (2) (Jun .): pp. 323 346. Genocidal Rwanda: Fostering Africana: A Journal of Ideas on Africa and the African Diaspora : 61. Nations Encyclopedia. http://www.nationsenc yclopedia.com/WorldStats/ADI bop current account balance.html). Africa Today 45 (1) (Jan. Mar.): pp. 7 24. ew 41 (1) (Apr.): pp. 73 97. Criminal Court 14 : 119. International Political Science Review 22 (3): 279. Olsen, Tricia, Leigh Payne and Andrew Reiter. 2010. Transitional Justice in Balance: Comparing Processes, Weighing Efficacy United States Institute of Peace Press. Washington D.C. O the Journal of Peace Research Vol 41, #3 (Sage Publications, May 2004, 321 336), 321 Emergencies: Conce Third World Quarterly 20 (1, Complex Political Emergencies) (Feb.): pp. 239 256 Pursuit of Accountability in Uganda and S Human Rights Quarterly 31 (3): 655 91. Peskin, Victor. 2008. International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation Cambridge Univ Pr. The Department of Justice and Constitutional Development. Republic of South Africa
129 Report of the Reparation and Rehabilitation Committee. 1998. Volume 6, Section 2, Ch. 1. Rigby, A. 2001. Justice and Reconciliation: After the Violence Lynne Rienner Publishers. Rwanda G ives Ex Leaders Immunity. 2008. BBC News, July 17, 2008. < http://news.bbc.co.uk/2/hi/africa/7511094.stm > Schabas, William. 2001. An Introduction to the International Criminal Court Cambridge University Press. Third World Quarterly 20 (6) (Dec.): pp. 1109 1128. Table 1259. U.S. Foreign Economic and Military Aid by Major Recipient Country: 2000 to 2006 U.S. Census. < http://www.census.gov/compendia/statab/2009/tables/09s1259.pdf > The International Criminal Tribunal for Rwanda. About ICTR, General Information http://www.unictr.org/AboutICTR/GeneralInformation/tabid/101/Default.aspx Tomaselli, K., M. Eke, and P. Davison. 1997. Transcending Prison as a Metaphor of Apartheid. Visual Anthropology 9 (3): 285 30 United Nations, General Assembly (19 49 ). Convention on the Prevention and Punishment of the Crime of Genocide 9 December. A/RES/3/260. United Nations, Security Council. Resolution 955 (1994) Adopted by the Security Council at its 3454th Meeting, on 8 November 1994. S/RES/3453/955. United Nations, Security Council. Resolution 925 (1994) Adopted by the Security Council at its 3388th Meeting, on 8 June 1994. S/RES/925/3388. 3 (3) (Autumn): pp. 75 99. Vokes, Rich Anthropology Today 18 (5) (Oct.): pp. 1 2. Temple Law Rev 79 : 1 1387.
130 Welkowitz, Joan and Robert B Ewen and Jacob Cohen. 2000. Introductory Statistics for the Behavioral Sciences Fifth Edition. 2000 Harcourt Brace and Company. Orlando Fl. Conflict Transitions: A Social Scientist's Perspective on The American Journal of International Law. 95 (1) (Jan.): pp. 64 75. NYUL Rev. 79 : 1934 nge in Post Apartheid South Africa Current Anthropology 41 (1): 75 98 Proceedings of the Annual Meeting (American Society of I nternational Law). 94 (April 5 8): pp. 254 259. Tribunals for Rwanda and the Former Yugoslavia: Implications for Criminology World Affair s 165 (3) (Winter ): pp. 133 141.