Crime and Punishment
by Wayne Ellwood
New Internationalist magazine,
Recent decades have witnessed horrible
atrocities. But a new system of international justice is slowly
rising from the carnage, A look at global efforts to confront
The long arm of the law is one of those
familiar sayings that must be ringing with particular clarity
in the ears of Désiré Munyameza. After all, when
he fled Rwanda five years ago, who would have thought that his
past would catch up with him in the French-speaking city of Montreal,
10,000 miles from his central African homeland?
But catch up with him it did.
In October this year the 39-year-old Munyameza
became the first person to be arrested under Canada's five-year-old
war crimes legislation. The Hutu exile has been charged for his
alleged part in the murder of nearly a million members of the
Tutsi ethnic minority in 1994, during a 100-day killing spree
by machete-wielding Hutu gangs in the hills of Rwanda. After six
years of investigation, the Royal Canadian Mounted Police charged
Munyameza with two counts of genocide, two counts of crimes against
humanity and three counts of war crimes.
Louise Arbour, UN Human Rights Commissioner
and ex-chief prosecutor of the UN Tribunal on Former Yugoslavia,
applauded the arrest as a part of 'a long, recent but solid line
of accountability'. Rwandan human rights activists around the
world joined her. And they were right to do so.
Genocide, 'ethnic cleansing' and mass
murder have been depressingly familiar aspects of human history.
But, as the arrest of Désiré Munyameza shows, there
are glimmers of hope and reasons for optimism. The move by Ottawa
is the latest signal that the international community is gradually
building a global legal system to demand accountability from perpetrators
of mass human rights violations - those who murder and mutilate
The UN-mandated International Criminal
Tribunals in former Yugoslavia (ICTY) and Rwanda (ICTR), along
with 'hybrid' court models in Sierra Leone and East Timor, have
established new means of bringing gross human rights violators
The International Criminal Court (ICC)
is the most ambitious example of this tremendous shift in the
international mood (see 'Challenging Impunity, p20).
Alongside this are many other paths to
what is called 'transitional justice' - the myriad ways that societies
torn apart by ethnic strife, civil war and brutal dictatorships
can seek truth, justice, healing and reconciliation.
'There are no easy answers or neat definitions
of transitional justice,' notes Alex Boraine, the former vice-chair
of the South African Truth and Reconciliation Commission (TRC).
Prosecution, truth-telling, reconciliation, reparations, institutional
reform, memorials and official apologies are all important. But
they must be held 'in tension to one another' and 'informed by
the political space of the transition itself.'
The concept of transitional justice didn't
exist in 1944 when the émigré Polish jurist Raphael
Lemkin coined the term 'genocide' (from the Greek genos, race
or tribe, and cide, killing). Lemkin was working in a very different
political space: the end of the Second World War and the emerging
truth of Nazi Germany's murderous spree through the heart of Europe.
But he was also struck by the 1915 mass murder of the Armenian
minority in Ottoman Turkey. Up to a million Armenians were killed
in this early attempt at 'ethnic cleansing'. It was, in the words
of an observer at the time, 'a massacre that changes the meaning
Lemkin's work led to the adoption of the
UN Genocide Convention in December 1948. The Convention defines
as genocide the intent to destroy 'in whole or in part' a population
defined by race, nationality, religion of ethnicity. Under pressure
from the Soviet Union, where Stalin's 'Great Terror' had just
ended, the definition purposely excluded groups defined by their
political interests or class background. Despite this legal hair-splitting,
there is a growing consensus today that genocide covers a whole
range of horrendous crimes, including the deliberate targeting
of political or class enemies.
But before the Genocide Convention came
the post-war trials of German and Japanese war criminals in Nuremberg
and Tokyo. The Nuremberg Tribunal was organized in 1946 by the
four main Allies (Britain, France, the US and the USSR). It has
sometimes been dismissed as 'victors' justice' because the crimes
of the winners, from the fire-bombing of Dresden to the use of
atomic weapons on Hiroshima and Nagasaki, were not examined. Nuremberg
did have its flaws - defendants had no right to appeal and verdicts
were reached quickly. But it was the first attempt to call to
account the perpetrators of murder on an industrial scale. In
the aftermath of the Hitler's death camps and the Holocaust -
the systematic extermination of Europe's Jews - it was important
that the guilty be held accountable.
After Nuremberg efforts to build a system
of international justice were shunted aside by Cold War rivalries
and the global arms race. It wasn't until the fall of the Soviet
empire and the horrors of former Yugoslavia and Rwanda hit home
that the international community began to look again at how to
deal with grave human rights violations like genocide and 'ethnic
Of course there was genocide before this,
and before Nazi Germany - even if the term had not yet been coined.
In Mexico, the Aztec population fell from 12 million to a million,
less than a century after the Spanish conquest in 1519. In North
America disease, forced relocation and murder wiped out 90 per
cent of the native population by the beginning of the 20th century.
Meanwhile, in the Congo the Belgians under King Leopold ran a
brutal system of forced harvesting of rubber from the jungle -
nearly 10 million Congolese died between 1885 and 1920. Well before
the Lord's Resistance Army in northern Uganda was amputating arms
and legs, the Belgians were hacking off hands for failing to meet
rubber quotas.' In 1965 the Suharto %regime in Indonesia murdered
half a million suspected 'communists' in Java and Bali while Western
governments turned a blind eye.
And then there was Cambodia: Year Zero,
the 'killing fields' and Pol Pot. The Khmer Rouge (KR) seized
power in Cambodia 30 years ago, attempting to build a fundamentalist
communist state in o less than five years. Nearly two million
- people, a third of the population, . died from starvation, disease,
forced labour and execution - the largest per-capita genocide
of the century. Class enemies were purged. Cities re evacuated,
schools did families torn apart. To this day, no senior leader
of the Khmer Rouge has been brought to trial to answer for these
Cambodian history text books barely mention the 'killing fields'
and according to the country's leading NGO, the Documentation
Centre for Cambodia (DCCAM): 'Just a generation after the genocide,
many young Cambodians can't believe their parents endured such
hardships under the KR.
After years of self-interested political
battles, Cambodia's culture of impunity may be about to change.
The 'Extraordinary Chambers' Tribunal agreed to by both the Government
and the UN last April is a 'hybrid' model - based in the capital,
Phnom Penh, with three Cambodian and two international judges.
Both the Rwandan Tribunal in Arusha, Tanzania,
and the former Yugoslavia Tribunal in The Hague, have been criticized
for being too distant from where the atrocities took place. DC-CAM
Director Youk Chhang argues that the trials need to take place
locally to have real meaning for Cambodians. 'It is important
to involve our people. We can learn lessons and affirm our trust
that Cambodians are capable; people must participate in the process."
The Cambodia Tribunal is likely to try
only a handful of top Khmer Rouge leaders and it will deal only
with the period from 1975 to 1979, when Pol Pot was in power.
Without this restricted mandate, it's
doubtful any deal could have been reached. Cambodia is a case
study of how Western political interests continue to set the agenda
for international justice. Whether it's the Russians in Chechnya,
the Chinese in Tibet or the illegal US invasion of Iraq, the world's
most powerful states are able to fend off accountability for their
own human rights infractions.
China, Thailand, the US, Britain, the
UN and ASEAN (Association of Southeast Asian Nations) all played
key roles in either laying the groundwork for the Khmer Rouge
or in supporting Pol Pot long after he was driven from power by
Vietnamese forces in 1979.
US Secretary of State Henry Kissinger
supervised the carpet bombing of Cambodia in the early 1970s which
killed more than half-a-million civilians and paved the way for
the Khmer Rouge victory two years later. Margaret Thatcher, Jimmy
Carter and Ronald Reagan all supported the regime after it was
driven from power. And China supplied Pol Pot with weapons throughout
the 1980s. Because of this the genocide was buried for nearly
20 years. The Khmer Rouge survived until 1992,
Western and Chinese complicity is the
key reason it's taken so long to reach agreement on bringing the
Khmer Rouge to justice - and why the timeframe of the Tribunal
is so narrow.
Nonetheless, it is an important step for
the country in coming to terms with its past. Cambodian scholar
Craig Etcheson argues that the Tribunal, even with its limitations,
is essential for reconciliation and national reconstruction.
'Though it will not solve the problem
of impunity in its entirety, bringing the leadership of the KR
to justice before a fair and impartial court of law is the most
reasonable way to begin putting the demons of Cambodia's tortured
modern history to rest and to teach Cambodia's children that there
is a better way."
Criminal trials of the world's worst human
rights abusers are absolutely essential. They signal that impunity
is being replaced by accountability. They can give victims a sense
of security. And they are a clear warning to those who might contemplate
abuses in the future.
But alone they are not enough - for the
simple reason that it would be impossible to put the tens of thousands
of accused in Rwanda or Serbia on trial. For example, the UN Special
Court for Sierra Leone will try just 25 of the country's worst
offenders - the 'big birds' as they're called - from all sides
of that devastating 11-year civil war.
Cost is another factor. Running these
complex, international tribunals, with hundreds of staff, is phenomenally
expensive. The Rwandan tribunal has been in session for nearly
a decade with barely a dozen convictions, each of which has cost
more than $60 million, The ICTY budget alone is more than $200
'million a year. Hybrid models like Sierra Leone, TimorLeste and
Cambodia are meant to be leaner and cheaper. The budget for the
Cambodian Tribunal has been set at $56 million, a fraction of
the cost of the others.
Prosecution is important to re-establish
the rule of law. But for societies recovering from massive trauma,
it is equally important to tackle the notion of truth itself.
Truth commissions are one way of doing
this. They attempt to analyze both the abuses themselves and the
political, social and economic structures that allowed them to
take place. They are not designed to replace judicial accountability,
but to complement it. More than that, a truth commission can provide
a means for sick societies to heal themselves - a space for victims
to be heard and for perpetrators to come forward.
Commenting on his experience in South
Africa, Alex Boraine stresses that truth-telling can be both cathartic
'A sick society needs healing; one of
the ways to bring that about in a land of contested truth is to
establish a common memory. A memory of those who have perpetrated
the deeds and never acknowledged them; a memory of those who suffered
and were silenced; and a memory of those who stood alongside and
said it never happened.
'It must be forensic truth, of course.
We want to know what happened, the why, when and where. But the
stories of the victims, the breaking of the silence, the returning
to people of their human dignity is critical. New truth emerges
when people talk honestly and openly with one another, which is
why the truth can never be found in isolation."
The truth itself is sometimes unclear,
even to the victims of violence. Memory confuses and language
fails, Jeanette Ayinkamiye, a 23-year-old seamstress, lost her
mother, her father and seven brothers during the Rwandan genocide.
When interviewed by French journalist Jean Hatzfeld she said:
'We forget the details, confuse the dates, mix up the attacks,
make mistakes... Over time we still have very precise lists of
memories; they become more and more truthful, but we hardly know
anymore how to order them in the right way.
According to psychologist Pumla Gobodo-Madikizela,
the accounts of 'truth' given by victims and survivors are not
about facts. They are about the impact of facts and 'the continuing
trauma on their lives created by past violence' .'0
No-one accepts that truth-telling is an
automatic ticket to reconciliation. Indeed, in the short term
reconciliation may be unrealistic. Other factors may be just as
important: an end to the threat of future violence; reparations
for the victims; symbolic acts of public apology or memorials.
Or, simply, the healing hands of time.
Even if forgiveness is possible, it does
not mean forgetting. The pursuit of ex-Chilean dictator Augusto
Pinochet by the Spanish courts, though ultimately unsuccessful,
was applauded by human rights activists around the world. It also
had an important spillover effect, spurring national courts in
Argentina, Belgium and elsewhere to bring charges against alleged
human rights offenders. The recent arrest of Désiré
Munyameza in Canada is part of this growing international desire
to confront impunity. Arguably, it might never have happened if
the Chilean dictator's crimes had been erased from the memory
of those who suffered under his regime.
Memory of the past has the power to heal
- but only if it is confronted honestly and openly. Indeed, it
is impossible for a nation or a people to forget a past scarred
by murder and injustice. It will sooner or later come back to
haunt. The legacy of slavery and racism haunts the US, where only
last June the
Senate issued a belated official apology
for its failure to enact an anti-lynching law. (Both Mississippi
senators refused to support the statement.) During the trial of
Nazi war criminal Klaus Barbie in the 1990s the French were awakened
to the anti-Semitism of the Vichy regime and the inflated myth
of a national French résistance to Nazi Germany. Both China
and Korea are still demanding that the Japanese apologize for
war crimes committed during the Japanese occupation of the 1930s
The truth may not lead automatically to
justice. But without it there is no hope. It is not possible for
a society to build a democratic future on a rotting foundation
of denied or forgotten history. People and nations need to acknowledge
their murderous pasts for justice to be done.
To paraphrase a couple of other familiar
sayings: the truth can set you free; but unless we confront our
history, we may be condemned to repeat it. *
Truth Commissions page