Different Approaches to Conflict Resolution
The way nations come to terms with their past has serious implications for the future course of that country. As a wave of democratization swept over the world in the early 1990s with the collapse of the Soviet Union, the new national leaders of countries in Eastern Europe and sub-Saharan Africa had to create a new collective memory. At question was how important was the past to the future of the country. There were three options to choose from; peace, trial or lustration. Countries that chose peace, like South Africa, believed in a system of restorative justice, where perpetrators of atrocities came forward and confessed to the crimes they committed. Countries that chose justice, like Chile, put war criminals and their like on trial for their crimes. Lustration, a process that bars high ranking from the former regime from sitting in government, was unique to Eastern Europe, with Poland and Germany pursuing that policy.
When the leaders of post-apartheid South Africa met in 1994 to chart out the future course of the country, they chose a tone of forgiveness and reconciliation. Otherwise, the country would be condemned to living in the shadow of its past forever. Heralded at the time as “the most ambitious and organized attempt to deal with crimes of a past regime through a concept of truth,” the South Africa Truth and Reconciliation Commission was a forum for people who committed crimes during apartheid confess to them without the risk of punishment.
In the commission’s report, it clarified what form justice was going to take through the duration of its work. “Certainly, amnesty cannot be viewed as justice if we think of justice only as retributive and punitive in nature. We believe, however, that there is another kind of justice — a restorative justice which is concerned not so much with punishment as with correcting imbalances, restoring broken relationships — with healing, harmony and reconciliation,” it said.
The commission reasoned that its way of dealing with the past “helps to restore the dignity of victims and afford perpetrators the opportunity to come to terms with their own past.” Forgiveness was given precedence over justice for the greater good and the reconciliatory approach was adopted. The process allowed South Africa to move beyond its apartheid past and usher in a new era as the “Rainbow Nation” that celebrated the diversity of its races.
But the commission was not necessarily the best way to deal with the crimes of the past. Elizabeth Stanley, a professor at the Victoria University of Wellington, has written extensively on the aftermath of the commission’s work. “What we can see is that the timetables for closure or forgiveness operate quite differently at personal and political levels,” she said. “Countries emerging from repression often want ‘closure’ overnight but, for victims, it often takes years if it happens at all.”
She may have a point. Take Magnus Malan, head of the Civil Cooperation Bureau, a white South African death squad. When it was founded, Malan said, “I sincerely regret civilian casualties, but unfortunately this is part of the ugly reality of war.” It was a way to exonerate himself when civilians were killed as a result of his squad’s operations. Malan was tried but eventually acquitted on all charges brought against him, as was the case with nearly all convictions brought forth by the commission. The trial threatened to undo the work of the commission, and Mandela had to ask South Africans to respect the ruling, despite widespread opposition to it. But to Mandela’s credit, the commission ensured the future of the economically productive white South African minority remained in the country. The same did not take place in neighbouring Zimbabwe, when national liberation commander Robert Mugabe defeated the Rhodesian military and effectively chased the white population after the country, decimating its economy in the process.
James L. Gibson, a professor of political science at Washington University in St. Louis, came to the same conclusion in his study, “Overcoming Apartheid.” In it, he said that the Truth and Reconciliation Commission is seen as successful because “South Africa appears to have made a successful, relatively peaceful, and
quite unexpected transition from the apartheid dictatorship to a reasonably democratic and stable regime.” But Gibson noticed that many South Africans thought the commission brought up too much of what was previously unknown information into the public view, embittering the population more than healing it.
Chile, unlike South Africa, pursued justice for the victims of the Pinochet regime. “Consider Chile,” Stanley says, pointing out that Chile’s decision to allow victims to continue to bring legal action for violations of human rights decades later — a system she says is better suited to the timetables of countries emerging from dictatorship. “Twenty-five years after the end of the Pinochet regime, the government and non-governmental organizations continue with programs to progress dealing with the past,” she said. “It’s a slow process, and victims will work at different paces from each other. Even now, some victims are just coming forward to relate their torture from 40 years ago, for the first time.”
Rwanda also followed the path towards justice and set up the International Criminal Tribunal for Rwanda to indict, try and convict those responsible for the genocide of 1994. So far, 29 people have been convicted in those proceedings. The language used in the commission is markedly differing in tone and objective. The International Criminal Tribunal for Rwanda’s wording says it was “established for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law…It may also deal with the prosecution of Rwandan citizens responsible for genocide and other such violations.” Nevertheless, there have been accusations that the tribunal has exacted a form of “victor’s justice” by almost exclusively going after Hutus, as the government of Paul Kagame is Tutsi and known to give preference to its own ethnic group.
Lustration was a method used to reinforce democratic rule in post-Cold War Eastern Europe following the collapse of the Berlin Wall. Built on the mistakes learned from the lax enforcement of de-Nazification in Germany following 1945, lustration was a feature of post-1989 Poland and Germany. As popular uprisings brought about the collapse of Soviet bloc regimes, the new, democratically elected elites also had to come to a decision over what was to be done with the thousands of civil servants, bureaucrats, informants and officers who ran the communist government administration. Samuel Huntington, who articulated the clash of civilizations theory, outlined a set of factors that would determine the post-communist system in Eastern Europe. “If the last leaders of the non-democratic regime had to be ousted, then there would be a desire for retribution,” according to a paper by the Sussex European Institute, as they were in East Germany, Czechoslovakia and Romania.
In Romania in particular, the overthrow of the Ceausescu regime was particularly violent and ended with the former dictator being killed, along with 1,100 other Romanians as the communist government collapsed. Retribution was immediate there. The Germans sought and won the right to extradite and try Erich Honecker and other members of the East German leadership for crimes they committed in the decades prior. But the entirety of the leadership was already too old to really satisfy any desire for justice. Honecker, for instance, successfully petitioned the Berlin Constitutional Court to suspend his hearing given his frailty and died shortly thereafter, not having been convicted on any charges. But the Germans did attempt to seek out justice for the crimes committed by the East German leadership.
Other countries, such as Poland and the Baltic states, pursued a policy of lustration, described by M. Cherif Bassiouni, a professor emeritus ad DePaul University, as a “purging process whereby individuals who supported or participated in violations committed by a prior regime may be removed from their positions and barred from positions of authority”. The transition to democracy in Poland was initiated when the communist government agreed to Solidarity’s demand that restrictions on political participation gradually be eliminated. Huntington predicted, “if they gave up peacefully following revolts or initiated reform themselves…then persecution would be eschewed.”
Initially, Solidarity did try to make the communists atone for the past. In August 1989, the union, then holding nearly all seats in the federal legislature, wanted to force an inquiry into the political murders that took place under communism. Leszek Moczulski, leader of a small nationalist party in the Polish parliament proposed that Wojciech Jaruzelski, Communist Party leader turned first president of Poland, be tried, but not jailed, for crimes committed during his tenure. That principle was followed up by the Lustration Act of 1997 requiring members of the former communist government to give a signed statement confirming their relationship to the secret police during communist rule. The affidavits were verified by the Commissioner of Public Interest, and following the South African model, let off those who had given honest statements. The only consequence was public condemnation of their past role in the communist government. People who had lied about their past in the statements were subject to legal consequences. Even then, the lustration process was fraught with problem. In 2007, a bill was passed that increased the scope of lustration that cast a far larger net on society than the previous parameters. After a bitter national and international debate, many of the key provisions of the expanded scope were considered unconstitutional as it had been nearly 20 years since the end of communism. Democratic rule had sufficient time to secure its future in countries like Poland.
It is interesting to find that since 1970, justice achieved through forms of amnesty have made up more than half of transitional justice mechanisms, rather than lustration or legal proceedings. The study, put out by the Journal of Peace Research, also noted that Europe led the way in implementing lustration, while truth commissions were common across Latin America, Africa and Asia. While the study didn’t claim one form of justice to be superior to another, it did reveal the reality about the differing notions of justice across the world.