Genocide and Accountability: Three Public Lectures by Simone Veil, Geoffrey Nice and Alex Boraine

Genocide and Accountability

Genocide and Accountability

Three Public Lectures by Simone Veil Geoffrey Nice Alex Boraine

Edited by Nanci Adler

Vossiuspers UvA is an imprint of Amsterdam University Press. This edition is established under the auspices of the University of Amsterdam. Center for Holocaust and Genocide Studies (University of Amsterdam, Royal Netherlands Academy of Arts and Sciences)

Cover design René Staelenberg, Amsterdam Lay-out JAPES, Amsterdam ISBN 90 5629 364 8 NUR 824/828 © Vossiuspers UvA, Amsterdam, 2004 All rights reserved. Without limiting the rights under copyright reserved above, no part of this book may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise) without the written permission of both the copyright owner and the author of the book.

Table of Contents Introduction Simone Veil The Shoah in the Netherlands and in History

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Geoffrey Nice The Reality of the Modern War Crimes Trial

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Alex Boraine Retributive Justice and Restorative Justice: Contradictory or Complimentary?

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Introduction In her opening statements at the inaugural ceremony of the Center for Holocaust and Genocide Studies, Simone Veil, survivor of Auschwitz and Bergen-Belsen, and now president of the Fondation pour la Mémoire de la Shoah, asserts that the “Shoah was not supposed to leave a single witness, nor be a part of History”. Nevertheless these pages in history have been recorded, and told and retold by survivors and others. Knowledge of the facts led to acknowledgement, and Auschwitz became synonymous with absolute evil. In the aftermath of the Nuremberg Trials, the UN Convention on the Prevention and Punishment of the Crime of Genocide was approved. The words ‘never again’ came into universal usage. The words did not translate into deeds; they did not stand for prevention, as is generally known. There remain many lessons to be learned by continued and intensive study of the Shoah, and material is still being gathered. The newly opened archives in Eastern Europe and the former Soviet Union will offer insight into the operation of the death camps. They will also surely raise new questions on the functioning of the Nazi (and Soviet) terror mechanism, since Jews were sometimes simply massacred in public view, rather than behind barbed wire or closed doors. Among the key issues addressed so poignantly by Simone Veil are not only how the Holocaust could come about and gain support, and how one act led to another, but how mankind could possibly come to the ‘Final Solution’. Madame Veil implores historians and others to treat the Holocaust as a unique phenomenon, because “the history of the Shoah suffices unto itself”. As we recoil from the enormity and savagery of the Shoah, we are forced to acknowledge that it was not only committed by demons, but by many ordinary people. Under some circumstances, their inhumane behavior is all too human. One constraint on inhumane behavior is to increase the risk, a remedy that may be provided by the legal system. Geoffrey Nice, Principal Trial Attorney of the Office of the Prosecutor of the International Tribunal for the former Yugoslavia (ICTY), grappled with some of these issues on a daily basis as he stood across from Slobodan Milošević, once president of the Federal Republic of Yugoslavia, now prisoner in a United Nations detention unit in Scheveningen, the Netherlands.

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Nice seeks to understand how genocide could come about in the former Yugoslavia. He reflects on the dark forces that can transform ordinary citizens into murderers in the ‘space of a few days’, and offers chilling examples. Thus, even as Nice advocates prosecuting the leaders of repression, he recognizes what Hannah Arendt described as ‘the banality of evil’, the otherwise casual behavior that permits ordinary men to become mass murderers. Nice actively pursues an understanding of the mechanisms – such as ideology and propaganda – which joined together to lead people to kill one another. Geoffrey Nice concludes that the ‘never again’ optimism has proven an illusion, and recommends a more pessimistic or perhaps realistic view of mankind which ensures that “the process is in place to restrain – so far as can be done – a recurring pattern of human behavior”. He hopes that the ‘unmasking by law’ of perpetrators of grave criminal acts will serve as a deterrent. In the aftermath of grave human rights violations, retributive justice is one way of dealing with what happened. So, too, is restorative justice, which includes the use of truth commissions. Alex Boraine, president of the International Center for Transitional Justice and former vice-chairman of the South African Truth and Reconciliation Commission, argues in favor of the latter approach. He contends that restorative justice overcomes the inequity of retributive justice, as exemplified by the Nuremberg Trials, in which only a handful of the thousands of perpetrators of the Shoah were convicted. Alex Boraine notes that a focus on prosecution, furthermore, does not necessarily achieve reconciliation in the countries where the crimes were committed. In his view, punitive measures alone perpetuate a culture narrowly focused on crime and punishment, but do not do enough to consolidate a culture of human rights in countries suffering from the effects of state-sponsored repression. He maintains that the victims and victimized society would benefit from the resolution that truth telling can offer. Boraine recommends a ‘holistic approach’ that includes accountability (punishing those who have violated the law), truth recovery, reconciliation, institutional reform, and reparations. The recently established Center for Holocaust and Genocide Studies, which is funded by the Dutch government and the University of Amsterdam, is actively involved in public debate, and in the research and dissemination of material

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related to the facts, causes, and consequences of the Holocaust, genocide, and other forms of mass political violence. The study of mass terror and victimization includes looking at how these atrocities are processed by the individual, public, and state, as well as their aftermath and legacy. The purview of transitional justice encompasses the historic and therapeutic processes of ‘coming to terms with the past’ with the goal of proposing strategies for dealing with the present and future. By including transitional justice in its program, the Center for Holocaust and Genocide Studies not only takes part in analysis, but through continuous and sometimes comparative evaluation, hopes to contribute to the remedy as well. Madame Veil and Mr. Nice delivered the speeches published herein at the opening ceremony of the Center on September 8, 2003. Dr. Boraine’s speech of March 19, 2004 constituted part of our public lecture series. It is our privilege on the first anniversary of the CHGS to present the lectures of three such distinguished speakers in this volume. Nanci Adler, Johannes Houwink ten Cate August 15, 2004

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Simone Veil The Shoah in the Netherlands and in History It is with great emotion that I speak here today, in Amsterdam, at the inauguration of the Center for Holocaust and Genocide Studies. As a former deportee in Auschwitz and then Bergen-Belsen, I cannot help but think of those women and men I met, deportees themselves from your country, with whom I formed friendly ties; that was in 1944. Few among them survived. Out of a Jewish population that counted 140,000 according to the racial criteria of the Nazis – half of which lived in Amsterdam – 105,000 were deported to Nazi camps, around 5,000 came back.1 The missions you have taken upon yourselves in this Center are to perpetuate their memory, and to understand and teach the history. The Fondation pour la Mémoire de la Shoah, over which I preside, also hopes to develop such fundamental missions. This is the reason why you have invited me; I am honored by this invitation and I thank you for it. The decision to create your Center for study and research is part and parcel of a project undertaken by the Task Force for International Cooperation on Holocaust Education, Remembrance, and Research, founded in Stockholm in the year 2000. After only three years, its international dimension led to significant progress, and contributed to better understanding of those tragic events, which go far beyond the extermination of European Jewish communities, and represent a real fracture in the history of mankind. In my opinion, it is important to remember your close collaboration with the Royal Netherlands Academy of Arts and Sciences, which I think not only reflects a strong commitment of academic institutions, but also of the national collective conscience, already symbolized, of course, by the Anne Frank House and the Anne Frank Foundation. Last but not least, how could one be surprised by your commitment when we refer to the strong traditions of your country? It is a land of freedom and welcome that for centuries, especially Amsterdam – the birthplace of Spinoza – gave refuge to those who were persecuted or chased for their religious beliefs or opinions. In the past, French Protestants, trying to preserve their faith, also

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found a safe haven here. Freedom of thought was well established, and Amsterdam was a place where a flourishing and fully assimilated Jewish community was able to settle and grow after fleeing the Spanish and Portuguese Inquisitions.

I. The Shoah in the Netherlands It is the descendants of this assimilated Jewish community who perished during the Holocaust. The land of welcome became, like the rest of Europe, a land of adversity. How was the deportation of so many Dutch Jews possible? As explained by historian Raul Hilberg, Dutch Jews were, even more than French, Belgian or Danes, particularly vulnerable to the Nazi’s criminal machinations. Not only did the geography provide few places to hide, but Dutch Jews also had to contend with the relentless determination of the Nazis, and the strong complicity of the police, banks, and local authorities. 1940 marked the beginning of the process of pauperization and humiliation that only slightly preceded the persecution of individuals. The Nazis started to organize the ‘aryanization’ of Dutch Jewish businesses using a model similar to the one they had already used in the Reich: the registration, liquidation, and confiscation of Jewish property which was later handed over to provisional administrators. In January 1941, segregation and the creation of lists of names were premonitory signs of the massacre that was to take place. A kind of ghetto was created in Amsterdam, even if only for a short while. Some months after, identity papers had to be stamped with the letter ‘J’, and in April-May 1942, Jews were ordered to wear the yellow star, putting the final touch on the identification process of Dutch Jewry. A curfew was imposed, they were forbidden to use public transportation without special authorisation, to use a telephone or enter the house of a gentile. The first deportations from Amsterdam began as early as 1941. Hundreds of men were sent to the camp of Mauthausen, to work in stone quarries. They were murdered there. In the summer of 1942, the pace of deportations picked up when the Germans insisted that forty-thousand Jews be deported. Prior to this increase of internees, the Nazis enlarged the major transit camp of Westerbork.2 Westerbork, near the town of Assen, represented the last stage before the death

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camps of occupied Poland, as the historian Jacob Boas recounts. Westerbork already had many attributes of a concentration camp: mud, overcrowded barracks, barbed wire, railroad tracks linked to the main lines, deplorable hygienic conditions, endemic disease. Like the camp of Malines in Belgium, Fossoli di Carpi in Italy, Berg in Norway or Drancy in France, Westerbork was the indispensable link in the Nazi great criminal system, the antechamber to the extermination camps. Beginning in 1942, as everywhere in Europe, the convoys of deportees followed one another in quick succession from the Netherlands as they did all over Europe. The last great round-ups occurred in the spring and summer of 1943. In order not to leave any chance for a Jew to survive, and to avoid a slow-down in the pace of deportations, the Jewish quarter of Amsterdam was carefully combed. However, as I mentioned earlier, 5,000 people, out of 100,000, survived, which was a dramatically low percentage compared to France and Belgium, where respectively seventy-five and almost fifty percent survived.4 One reason is that, of the 105,000 Jews who were deported from the Netherlands, 60,000 were sent to Auschwitz, where a few healthy young men and women – selected in a few seconds and sent to work in the camp – had a very tiny chance to live, whereas 34,300 were sent to Sobibor, and killed upon arrival. These frightening statistics, this process of destruction as monstrous as it was carefully mapped-out, mask the reality of human suffering. How can we fathom the anguish of those who were led to the gas chambers? What were their last moments like? We have numerous stories of mothers with their children that enable us to perceive the terrible agony of the Dutch Jews. As early as 1942, Anne Frank, in her world-famous Diary, displays an intuition and a perspicacity that is astonishing for an adolescent. With a vivid awareness of the fate that awaited her and her family, she actually wrote on October 9, 1942, with the hope, nonetheless, of escaping it: Little by little, many of our Jewish friends are arrested, by the Gestapo. […] They are transported in cattle cars to Westerbork, the big camp for the Jews, in Drente. Westerbork must be a nightmare; hundreds and hundreds of people are obliged to wash themselves in just one room, and there are no toilets. People sleep scattered all over the place, pell-mell. […] It’s impossi-

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ble to escape. […] If this is taking place in Holland, what must be happening in the faraway and barbarous regions to which Westerbork is just an antechamber? We know very well that these poor people will be massacred. The British radio talks about gas chambers.5 In much the same way, the diary that Etty Hillesum, kept between 1941 and 1943, gives us vital information about Jewish life in Amsterdam and then in the Westerbork camp. Her last postcard, thrown from the train that carried her towards Poland, describes their deportation: “I’m sitting on my knapsack in the middle of a packed freight car. Papa, Mamma and Mischa are several cars away. […] We left the camp singing, father and mother very calm and brave, Mischa, too. We shall be travelling for three days.”6 Nevertheless, if some escaped this tragic fate, most of them owe it to the people who showed them solidarity. Some of the churches multiplied their efforts towards the deported; resistance networks forged identity papers and hid Jews; but friends, neighbors and even anonymous individuals, risking their lives, also hid thousands of Jews in convents, orphanages, or in their homes. Inspired by their own kindness and sense of justice, they simply did not accept the tragic fate of the Jews. Chance was on Edith Velmans’ side when she was living in The Hague, at the age of fourteen. In a book published recently, Edith’s Book, she tells about the three years she spent hiding her true name, living with a Protestant family, and in the shadows, watching her family disappear. Aunt Tine, the woman who hid Edith Velmans, was awarded the title of ‘Righteous Gentile’ by Yad Vashem in 1983.7 These testimonies are absolutely essential.

II. The Shoah in History However, today, the era of witnesses is coming to an end. The majority of survivors have died. Soon, our generation, which was not meant to survive, will pass away. The time will also come when those who interviewed us in person will, in turn, pass away. Books will then be the sole repositories for our memories. But knowledge about the Shoah cannot, must not, be limited only to testimonies of those victims who survived, nor to the testimonies of those who perpetrated crimes against them. Now that the witnesses are passing away,

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the historian has a responsibility, more than ever before, to shed light on certain aspects of these events not yet analyzed. The Shoah was not supposed to leave a single witness, nor be part of history. The purpose of the ‘Final Solution’ as it was formulated at the Wannsee Conference was to eradicate an entire people from world history and the memory of mankind. Everything was conceived, thought out, organized so as to leave no trace of what had happened. The Nazi death machine was supposed to not only make the Jews as an entire people disappear, but also to extinguish the evidence that showed they had been put to death. The existence of the gas chambers was kept like a state secret and all sorts of euphemisms were used to dissimulate the enormity of this crime from the rest of the world. Reichsführer-ss Heinrich Himmler himself said that the extermination of the Jews by Germany was a page of history that must never be written. Yet, six million Jews were massacred; this page of history was written and it must not be erased. What can we expect from history and from historians when the oral accounts, and the emotion provoked by contact with the witnesses is no longer possible? Much has been said since the first work by Raul Hilberg that, for a long time, attracted the attention only of those directly involved.8 In the Western world since that time, historians have made progress. Even the general public is informed. History books, textbooks, documentaries, university colloquia, exhibitions, certain outstanding films like Shoah by Claude Lanzmann and, more recently, a different type of film, The Pianist, by Roman Polanski, deal with anti-Semitic persecution without omitting a single detail. These works help deepen our understanding of this monstrous event, unique in the history of humanity: the programmed murder, on an industrial scale, of an entire people – men, women and children without distinction. Today, the world knows that this occurred and how it occurred. One might even be under the impression that historians know everything there is to know about this tragic period. Yet, has everything really been said? Have all the archives been thoroughly examined? Have all the questions been asked and have all the answers been given? In my opinion, the answer is no. With the collapse of Soviet Communism and the Eastern European countries’ rediscovery of their past, new roads have been opened to historians.

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New archives have come to light in Russia that concern the Shoah in general and especially, how the death camps were operated in occupied Poland, and how they were liberated by the Red Army. But the archives released in Russia and Eastern Europe also inform us about the history of these particular nations. More than ninety percent of the Jews from Poland, the Baltic countries, Ukraine and Belarus were put to death in the gas chambers or even massacred in the open air by special troops. The rare survivors were unable to fight the silence about these deaths that was imposed by the Communist regimes in power. Historians from these countries were unable to work in satisfactory conditions. That is why the extent of the pillaging, the application of anti-Jewish legislation, the creation of ghettos, the timetable for deportations, the improvised or planned killings, and also the activities of local resistance groups and networks that saved people, are not as well-known in Eastern Europe and Russia as they are in Western Europe. After many years of indifference to these subjects, or ignorance of their existence, historians and the younger generation in these countries are just beginning to perceive the reality and the vast extent of the Shoah, and to become interested. On the other hand, in our countries, thanks to the work of historians, our knowledge of genocide has been greatly enlarged. What kind of knowledge can historians still hope to enrich by their studies? To some extent, they have already stated that which was the most obvious and most immediate: the facts themselves – the concrete facts, the simple, brutal facts – the desire to humiliate and degrade, the organization, the planning, and the methods used to kill massively. Yet even these facts themselves would have little meaning if we were to ignore the racist ideology that motivated the genocide, the widespread support that it found, the sources and spokesmen for it all over Europe. There are so many paths yet to explore before we understand how, in the twentieth century, a nation of philosophers, of musicians and poets could not only conceive of the ‘Final Solution’, but also put it to work so efficiently, with the complicity of so many European countries! Once we have understood how events took place, how one act led to another, from discrimination and segregation to deportation and extermination, human understanding continues to stumble over one essential fact: how did mankind come to this? Why were the Nazis and their collaborators so fanatic,

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so inhuman, so pitiless in their anti-Semitism, sparing neither women, nor children, nor elderly people? In studying the history of the Shoah, we have to make the link between the ideological discourse and concrete criminal practices. ‘Why’, but also ‘how’? How did the Shoah gradually come about? Was it inevitable? Was there room for improvisation or was it carefully planned from beginning to end? Did it come from Nazi madness and hatred or must we go back even further to understand it? It is my opinion that historical study of the Shoah, as with any event that has profoundly marked the life of mankind, must delve deeply into the past. So the contemporary historical debate must situate the events of the Second World War in an overall view, which takes into consideration facts, but also their causes, however distant they may be. Naturally, the primary cause is anti-Semitism. In ancient times, the hostility of pagans towards the Jews stemmed from their monotheism; as for Christians, they were unable to pardon the Jews for refusing Christ’s message and remaining faithful to Judaism. Discrimination and persecution continued throughout the Middle Ages. Since most professions were forbidden to them, Jews were forced to limit themselves to trade and banking. What is more, the tradition of studying the sacred texts allowed them to play an important role in the intellectual life of their time. Adding to this ostracism, were cruel myths that accused Jews of ritual murders, of sacrilegious profanation, of poisoning wells. Then, near the end of the Age of Enlightenment, a small hope glimmered: the philosophy of human rights, incarnated by the French Revolution, led progressively to the emancipation of the Jews, and that is how Jews of France acquired French citizenship. However, this movement did not stop anti-Semitism from flowering. It developed in Russia and Poland, where there were many Jews, and in France, where there were few – and they believed themselves to be assimilated into the community. As the historian Philippe Burrin comments: “In Germany, the Dreyfus Affair would not have taken place, but a Jew would never have risen to the ranks of the Chiefs of Staff.”9 To bring us up to a more recent period, diverse factors were necessary to enable anti-Semitism in Germany to develop into this desire for total extermination, something unimaginable until this time. On the one hand, PanGermanism, tied to what was called the ‘German question’, strove to group

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together in the same nation-state all Germans living beyond its borders, and provoked a violent rejection of all non-German elements of society. On the other hand, in a German society that was not entirely secular, the idea of a Christian nation was dominant; in this way, the ‘Völkisch’ movement – a precursor of Nazism – defined itself, as in a mirror image, in relationship to the Jews. Last of all, the defeat of 1918 – unacceptable to the German people who believed in victory till the bitter end, the terrible conditions imposed upon Germany at the Treaty of Versailles, and finally, the economic crisis, were all factors that aggravated this anti-Semitism even further. One can interpret the Shoah as the convulsive end product of a discourse full of hatred, born with paganism in ancient times, which became radicalized in Germany for reasons relating to this country’s history. Yet, if we go back to the nineteenth century, or even to the First Crusade, already marked by pogroms, do we not run the risk of eradicating the singularity of the event, of making the Shoah merely a magnified extension of the anti-Semitism that has existed from time immemorial, simply one of the vicissitudes of history? It is, in fact, a unique occurrence, endowed with its own logic, enclosed in its absolute specificity. Let us not lose sight of the fact that Nazi anti-Semitism was above all racial and aimed at total extermination. This well explains the metaphysical and moral questioning that these facts have provoked, and which incited the statement that, “the destruction of the Jews of Europe and the gypsies represents a great breach in the history of humanity”. In fact, Auschwitz has become the reference for total evil and the Shoah has become a paradigm, providing abundant concepts and moral criteria. Furthermore, if we go too far back in time, we cannot designate those who are truly guilty. However, this problem does not necessarily stem from a widening of the historical perspective, for the question of mitigating responsibility is intrinsic to the study of the Shoah. The well-thought out murder of an entire people on an entire continent needed the support of various authorities: governments, police forces, businesses, administrations and personnel. To give an example, Raul Hilberg estimates in the several tens of thousands the number of people that participated directly or indirectly in bringing about the Shoah.10 The films of Claude Lanzmann illustrate clearly how responsibility was given to many people and artfully diluted so that no one individual really felt himself to be guilty.

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So where should the historian stop his investigation? When studying the way in which the Shoah was implemented, should we accord equal importance to the dignitaries of the Third Reich, to the regional Gauleiters, to the administrative planners, to the officials working for the railroad who were ordered to transport the deported persons to the place where they were put to death, to the chemists and engineers who furnished the Zyklon B gas, to the kapos in the extermination camps? Although it is true that the ‘executers’ of the Shoah were anonymous bureaucrats, impersonal gears in a well-oiled death machine, the reality of the extermination demonstrates that it was also quite often perpetrated consciously. In Eastern Europe, certain killings were organized haphazardly, with whatever fell into the hands of the local population, and other massacres in the ghettos and villages were modelled after pagan festivals, carnivals of derision and of death. There were Nazis who were glad to kill. The historian must also take into account this monstrously ceremonial and ritualised aspect of the Shoah. I do not presume to provide the answers to all these questions. Historians know now, and will know how to do so, far better than I. I simply wish to show that the recently uncovered archives, and the new problems that historians are debating, promise research of great interest and great value for the future. Work is in progress in many locations. In research centers here in Amsterdam and in Paris, in Israel and the United States, historians still have a lot to accomplish, notably in the domain of comparative research, calling on other scientific disciplines. There is no way to measure just how important the work that they do is, and how important it is to disseminate these findings. Spreading knowledge allows us to combat ignorance and indifference, on the one hand, and on the other, concern for clear-thinking and teaching help us to discern the specificity of the event, and to fight against the current tendency to make the Shoah a commonplace event. Information and knowledge can help prevent people from making those unfortunate amalgams that so often obscure the comprehension of things in their proper context and the appreciation of their true worth. Allow me to spend a few more moments on those dangerous amalgams that deny any uniqueness to the events known as the Shoah. We did not have

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to wait long after the end of the Second World War to find the name of Auschwitz associated with that of Hiroshima, a maneuver that aimed at placing the Allies and the Nazis on equal footing. I remember photos published in a well-known magazine, where victims of the 1944 bombing of Dresden were shown on the same page as wheelbarrows piled high with cadavers at Bergen-Belsen when the camp was liberated. Then, it was the massacre committed by the Lebanese militia fighters at the camp of Sabra and Chatila, qualified by Leonid Brezhnev as ‘genocide’, and presented as the unique responsibility of the Israelis. This inversion of the truth was and continues to be unbearable. Today, just as yesterday, this routine amalgam causes great harm. It makes me say that the primary danger is not forgetting, nor the negation of what happened, but in fact, making the Shoah into some commonplace occurrence, no more important than any other. For these comparisons are far from being neutral. If everyone is guilty, why stigmatize some people rather than others? Everyone is a victim, everyone is guilty. As a result, no one truly is guilty. The upshot of the matter is that the idea prevails that all tragedies are of equal importance.

III. The Shoah and Human Rights Ladies and gentlemen, I stand before you and I formally demand that the specific uniqueness of the Shoah never be denied, diluted, swamped in a mass of irrelevant details, or recuperated for nefarious purposes, in short, made into an ordinary occurrence. Of course, this affirmation of the singular aspect of the Shoah does not make us deaf to the suffering of other victims, nor blind to the violations of human rights. It is in this way that, for many decades, with all the means and the influence that I can muster, I have been fully committed to the fight for the dignity and the inalienable rights of each individual. I believe that I have served this cause with success, obtaining concrete results, especially as a government minister and as President of the European Parliament. I have intervened in numerous countries, whatever the nature of their regime might be, to defend populations whose basic rights had been denied. And today, I still consider it my duty to be engaged in these other battles. Yet, can we put all attacks on human rights on the same plane, whatever their gravity and whatever the context might be? Can we approach the planned ex-

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termination of millions of human beings, based only on their ethnic and religious identity, in the same way as we approach a fratricidal war, as cruel and murderous as it may be? Territorial claims, independence, the desire to assure one’s personal safety, and each man’s conception of his rights are all a source of violence, of repeated, lasting and murderous violence. But as long as the conflict remains this type of combat, we can still hope that some day negotiation will be substituted for confrontation, because at the heart of the matter, the stakes remain political. The idea that history is nothing other than a lethal combat between different human races is the explicit base of the Nazi ideology. As in Cambodia or Rwanda, this leads to genocide. Now, in these times of moral relativism, the Shoah often serves as a moral compass: it is an absolute, it is absolute evil. Without a doubt, this is why it is constantly being referred to in all situations, with the risk of attenuating its importance. It is not because the Shoah remains the symbol of absolute despair that all sorts of interpretations, all kinds of amalgams are permitted. It is not because the shadow of deported Jews and gypsies continually hovers over us that every violation of human rights causing death must be considered a new Auschwitz. The history of the Shoah suffices unto itself. At least forty years went by before we could speak about our experiences in the camps, almost two generations. When we came back from deportation, in 1945, we were not welcomed back as we had imagined we would be. We experienced indifference, sometimes scorn. No one understood what we had been through. Perhaps we made people feel uncomfortable? The experience that we had to transmit had simply no relationship to what an ordinary person could imagine. People did not want to know and Jews did not interest anyone. One has only to look at the total indifference that greeted the publication of Primo Levi’s If this is a Man in 1946. Perhaps, this wilful ignorance and this retreat from the facts were necessary. Today, things have changed. Still, historical research on the Shoah must be relentlessly pursued, historical facts must be passed on to the younger generations, but remembrance of the event must also be commemorated, memory must be preserved, suffering felt. That is why I salute the creation in Amsterdam of your Center for Holocaust and Genocide Studies with which, I am

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convinced, French historians will be sure to be working on joint projects. I would like to express my best wishes to this new institution for all possible success in its endeavors. The heritage of the Shoah belongs to all of us. I would like to express my most heartfelt wishes that the memory of the Shoah be not merely an ingredient of a good conscience, but that it continues to inspire respect for human dignity and fundamental values. Ladies and gentlemen, I would like to close my comments by once again evoking the memory of Anne Frank. In hiding with the rest of her family from 1942 to 1944, she was arrested with all the other clandestine tenants of The Annex on August 4, 1944. Deported to Auschwitz, she died of exhaustion or from typhus in Bergen-Belsen in March 1945, several weeks before the Liberation. I associate her destiny with that of my mother whose tragic journey was quite similar. I speak of Anne Frank because it is thanks to her Diary that the Shoah and the fate of the Jews have become known to the entire world. I imagine that if she had lived, it is she that would be here, and it is she who would be addressing you today.

Notes 1.

G. Hirschfeld, in W. Benz (Ed.), Dimension des Völkermord: die Zahl der jüdischen Opfer des National-Sozialismus (München: Oldenbourg, 1991), pp. 162-163. nd 2. Raul Hilberg, The Destruction of the European Jews, vol. II, 2 edition (New York: Holmes and Meier, 1985), pp. 570-597. 3. Jacob Boas, Boulevard des Misères: het verhaal van doorgangscamp Westerbork (Amsterdam: Nijgh & Van Ditmar, 1988). rd 4. Hilberg, vol. III, 3 edition (New Haven: Yale University Press, 2003), p. 1128. 5. Les journaux d’Anne Frank (Paris: Calmann-Lévy, 1986), p. 312. 6. Etty Hillesum, An Interrupted Life and Letters from Westerbork (New York: Metropolitan Books, Henry Holt and Company, 1996), p. 360. 7. Edith Velmans, Edith’s Book (London: Viking, 1998). 8. See endnote 1. 9. Philippe Burrin, Hitler et les juifs: genèse d’un genocide (Paris: Editions du Seuil, 1989). rd 10. Hilberg, vol. III, 3 edition, p. 1061: “the machinery of destruction was the organized community in one of its special roles.”

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Geoffrey Nice The Reality of the Modern War Crimes Trial I. The Crimes of the Ordinary Crook Goran Jelesić Allow me to begin this short address with something from the first trial charging genocide that reached a conclusion in the Yugoslavia War Crimes Tribu1 nal. I refer you to the map of the former Yugoslavia, and particularly to Bosnia (opposite page). The shaded parts to the north are vulnerable to Serb domination. Likewise the shaded parts to the east, which are connected with Serbia itself. You will see, I hope, that to bring those lands together, it would be necessary to take the small town of Brčko. Without it, there could be no continuation of Serb-dominated territory. Brčko was taken by force in May 1992. The bridges that connected Bosnia to Croatia across the river Sava (below) were blown up. And Muslims, those who had not already escaped in fear, were rounded-up. The prominent ones were particularly targeted.

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A few days earlier, in the nearby town of Bijeljina, a man called Goran Jelisić had been recruited. He was a small-time crook waiting to serve, I believe, an eighteen-month sentence for something like credit card or cheque fraud. He was given a police uniform and he was given a scorpion pistol – a deadly weapon, and something of a fashion accessory at that time. Days later he was in Brčko. Prisoners in a police station were handed over to Jelisić after they had been interviewed. He is depicted here (see photo section), on a small street, a hundred meters or so from the police station. We see a pizza house on the right, and the river at the end; an ordinary street in Brčko, a town famous before the wars for its annual cultural festival. We see Jelisić and on either side of him two men. One is shot and then we see Jelisić shooting the other. We see the bodies lying ahead of those who had already been killed. The task is finished. The men are both dead. We move on to the next part of the story. A few days later, at a warehouse by the banks of the river – now a detention facility for Muslims – Jelisić was apparently, if not in charge, in a position of great authority. One of his activities was to select men from the warehouse – sometimes four at the time, sometimes according to lists he had been given, and sometimes at his own whim. He would take them from the warehouse and make them line up outside the door. Just outside the warehouse was a grate in the roadway. One person was selected. He would have to lay his head on the grate, and his brains would be blown out. The other three would carry him to the waiting truck. They would return. From their number, one would be chosen and similarly dispatched. Maybe one of the other two would also die. Some of this evidence came from a man who volunteered to go on this exercise of roulette, because the agony of waiting inside was worse than the agony of putting yourself on this line. I believe he survived two or three such experiences. The bodies of those shot outside the police station and the warehouse were disposed of in many mass graves, the sites of which had to be selected. Machinery for digging them had to be organized and the labor for working with the machinery had to be retained. In one such picture of a mass grave, we can see the Red Cross sign on the white truck that brought these bodies – regularly – to this grave. (see photos)

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II. Crimes Committed in a Climate Created for Political Reasons This is the reality of the modern war crimes trial we have to prosecute. Uniquely, in this case we have photographs. What happened here was repeated many, many times, and by many people who have never been identified and brought to trial. The trials are, of course, absorbing for the lawyers who work on them. But there is one particular reason that they are so absorbing, to which I shall return later. Before I do so, we should note that these unique pictures show only one accused. They do not reveal anything of the people who instructed him, or of the people above them who organised these dreadful events. Those people for the most part remain unidentified. War criminals, just like any other criminals, leave no traces when they can avoid doing so. They hide their tracks; they lie and they deceive. So far only this man has been brought to account for these crimes committed in Brčko. But a deeper look at the photograph leads to questions about those two men on either side of Jelisić. Until hours, or at the most a day or so earlier, they had led normal lives in homes with families, gardens and pets, until this point at which they can be seen stumbling, without a sign of fight, to the certain death that they could see coming because they could see the bodies that lie ahead. Let us now turn to the accused. He, too, until but a few days before, had led a comparatively normal life. He was interviewed after arrest by investigators. He talked a lot. He claimed that he had no interest in politics. He had no attitude against Muslims and no history of violence. He had been just a credit card cheat. Now he glorified in the name of the ‘Serbian Adolf’, and bragged about the number of people he had killed before his morning coffee. All of these men had been changed completely from what they were to what they became in what would appear to be the space of a few days. They had been subjected to enormous forces that operated in the former Yugoslavia, just as similar forces have operated in tragedies of a similar kind throughout the centuries. And if there is one particularly intriguing aspect of the work of those of us who have to prosecute these cases, it is considering how all these forces – brought about by some series of events – come to do what they do. We hear stories on a daily basis from small town victims of small town perpetrators, maybe even friends, who have been turned by the force of such events

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into serial and savage killers. I have no doubt that the explanation of how these forces come into being is not one that simply requires a lawyers’ approach, but rather a multidisciplinary one. These crimes that we deal with are different from domestic crimes. In domestic crimes we assume that a society with clear rules has been transgressed violently by those who offend. We do not get too involved in the psychological or sociological reasons for what has occurred. It suits us to say that they have only limited significance, usually in sentencing. But in war crimes trials, missing out what allows citizen to act violently against neighbor or friend is really not permissible. We have to look at the political and at the social context in order to understand. We have to recognize that political elites create ideologies that either lead to or permit these crimes of genocide or genocidal type. We have to recognize that the forces of which I speak can lead to people committing crimes at a local level, apparently for reasons different – or separate – from the goals of the leaders who generate the environment in which these crimes are committed. And they commit crimes because, for example, they think they want the house next door. But in fact their crimes have been committed in a climate specifically created to allow these terrible forces to reign, for different, wider, political purposes.

III. A Personal Note Of course this question is not only about others. There is always a question about what can happen not just to others but – were the circumstances to exist – also to ourselves. Brought up shortly after the second World War, like many of those involved in these cases, I was educated in an environment – certainly as far as England was concerned – that on reflection seems to have been artificially peaceful. Let us recall what and how we have learned about the Holocaust. It was the most critical event in recent history, but it had to be overlooked as we learned to believe that peace was natural and that war was an aberration – despite all the evidence to the contrary. The Holocaust entered our consciousness much later, through books and through films. And when I became a lawyer there were no courses devoted to war crimes or anything of the kind.

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Perhaps if this was, at least in England, a period of almost artificial peace, it reflected the hope that man is essentially peaceable. This belief, of course, makes it less possible for the person holding that belief – or hope – to understand or to accept what could be the power of propaganda, or propaganda linked with other events, on him or her. It makes it difficult to accept how such things can release the dark potential that lies within all of us, despite all the twentieth-century evidence to the contrary. Of course for an Englishman – and I say this lest it should ever be thought that I was excluding the English – it would be quite wrong to overlook such potential. I come from the country which I believe, in the early thirteenth century, to have been the first Christian society to expel and kill its Jews in the pogroms of York. It is also the country in which the deaths that followed Cromwell’s Civil War matched what we see in modern war crimes. It is a country where, to take a slightly different example, in the nineteenth century many thousands of Scots were forcibly expelled from the Scottish Highlands in the famous, or infamous, ‘Clearances’. Each of these events, depending on how you were now to define genocide, arguably merits that description. So I was, and indeed am, as many others at the Yugoslav Tribunal, an ordinary lawyer brought in the middle of a career to this sort of work. We are ordinary lawyers with no special expertise. We may be subject to a temptation in lawyers to think they can work things out for themselves unaided, certainly unaided by sciences as ‘soft’ as sociology. But in these crimes particularly, where we find ourselves in these trials trying the top leaders, we have to be able to establish how it is that those dark forces, of which I spoke, came into being. And more important perhaps, we have to prove that the leaders who we are prosecuting, knew or must have known the potential of what they were doing as they unleashed those forces. It seems to me that this institute, this Center, and others like it that do the same work, may have an important part to play in the developing world of international criminal courts and of war crimes trials. Such institutions can potentially contribute in two distinct ways: first, by being able to provide evidence for judges on how it is that A leads to B, and how it is that policy X and propaganda Y came together to lead to the citizens killing one another. It may be possible to save the judges and the lawyers from having to guess.2 And second, by educating widely it can ensure that knowledge of all these historical

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and more current events will deny alleged offenders in the future the opportunity even to suggest the argument that they did not know the consequences of what they were doing.

IV. The Necessity of Prosecution It may be that the legal framework for dealing with war crimes trials, including genocidal trials, is at the moment a work in progress. It may be that the ICTY and ICTR (International Criminal Tribunal for Rwanda) are very much innovators, gathering material that will be of value in determination of the trials themselves, but will also be of enormous value to institutes such as this when it becomes available. And now let us turn briefly to the future. Our court and, of course, the permanent International Criminal Court now established in The Hague have narrow duties. I agree entirely with the director of the Netherlands Institute for War Documentation, Prof. dr. J.C.H. Blom, who distinguished between what lawyers do and what historians do. Our duty as lawyers or judges is to act within the statutes and the rules given to us by political masters and to ensure that verdicts are returned – verdicts that will stand the test of time. We should not stray beyond our proper function. Prosecutors can do no more than attempt to bring to account under rules some of the worst offenders. Judges, as they sensibly say, are not to attempt to write definitive histories, but to return verdicts within the rules, other wider issues being, of course, for others. (There is always a temptation to enter another’s field – it is dangerous perhaps for us to do so.) Of course we might have uninformed views on the nature of man, on whether violence is natural and simply a sensible ultimate technique for the resolution of conflict. Or we might think that there is reality in the spirit lying behind those memorials that are regularly and properly erected in respect of crimes of genocide, memorials that plead and pray that ‘this may never happen again’. By expressing this hope we encourage ourselves to live with false optimism. My approach – perhaps informed by the work I now do – is that as long as the ‘never again’ optimism is shown not to have worked, it may be safer to work on a more pessimistic view of ourselves and our fellow men, and to ensure that the process is in place to restrain – so far as can be done – a recurring pattern of human behavior.

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The ‘never again’ memorials are of course useful, but what we need more is to introduce the legal mechanism and create the legal institutions relevant to prosecute these crimes promptly. Our duties at this tribunal and at others include the development of the law, particularly the law on genocide.3 The word genocide has been claimed both by lawyers and by the victims of grave crimes. All three principal ethnic groups of the former Yugoslavia claim to have suffered or been threatened with genocide by at least one of the other groups.4 At memorials for terrible crimes committed against a limited number of people the word genocide may appear, although an indictment charging offences in respect of those crimes might never include the word. In the ICTY genocide has been charged in several indictments and already returned as a verdict once.5 It is our responsibility to develop the law to ensure that this word is adequately defined. The definition should remove certain events from the realm of crimes or trials of genocide without in any sense undervaluing or undercutting the way in which non-lawyers use and rely on that word. It is our duty to do all this work quietly, professionally, and without hope for personal publicity (which is by and large bad for lawyers) in order to create the certainty of professional response to war crimes where they occur. The International Criminal Court will rise, one hopes, to the position where its potential to impose penalties disinterestedly on aggressors, or even on those who might feel justified in making pre-emptive strikes against wrongful aggressors, may deter violence in both. So I hope we may move to a landscape where children will not be brought up with unrealistic expectations of an innocent world. I hope that it will be a world where adults on the verge of committing the gravest criminal acts will not be allowed to act unrestrained by believing that the world will not understand – or see through – what they are doing. Such people may press on regardless. But they must do so with the knowledge that they will face grave sanctions if and when they are unmasked by law. A law in this area must be supported by learning and research, and to make sure that the education on these matters enters the schools, universities and research institutions. I wish the newly established Center well. It has important work to do.

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Notes 1. 2.

3.

4. 5.

Prosecutor v. Jelesic, Trial Chamber, Judgement, 14 December 1999, IT-95-10-T; Appeals Chamber Judgement, 5 July 2001. The CHGS genocide-studies expert, Dr. Ton Zwaan, wrote a report on the aetiology of genocide in 2003 for the Office of the Prosecutor of the ICTY. He subsequently served as expert witness no. 288 in the Prosecutor v. Milosevic, 20-21 January 2004. A later motion by the defendant to have the genocide charges dropped was dismissed. See, ‘Decision on Motion for Judgement of Acquittal in the Milosevic case’, 16 June 2004, www.un.org/icty, CT/PIS/858e. See Martin Mennecke and Eric Markusen, “The International Criminal Tribunal for the Former Yugoslavia and the Crime of Genocide,” in Steven L.B. Jensen, ed., Genocide: Cases, Comparisons and Contemporary Debates (Copenhagen: The Danish Center for Holocaust and Genocide Studies, 2003), pp. 293-359. See Ton Zwaan, “On the Aetiology and Genesis of Genocide and other Mass Crimes Targeting Specific Groups,” November 2003. See Prosecutor v. Krstic, Trial Chamber 2, 2 August 2001, IT-98-33; “Appeals Chamber Judgement in the Case ‘The Prosecutor v. Radislav Krstic’”, 19 April 2004, www.un.org/icty, CC/P.I.S./839e.

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Alexander Boraine Retributive Justice and Restorative Justice: Contradictory or Complimentary? I. The Legacy of Human Rights Abuses While repressive regimes vary widely, countries in transition have a number of similarities. These include: a shift from totalitarianism to a form of democracy, a legacy of oppression and serious human rights violations, a fragile government and precarious unity, a commitment to the attainment of a culture of human rights and respect for the rule of law, and a determination to render it impossible for past violations to be repeated. A host of daunting questions confronts the newly emerging democracies, including South Africa. Among these are the following: • How should past violations of human rights be dealt with, and what measures are desirable and possible in particular contexts? • How do new democracies deal with leaders and other individuals responsible for disappearances, death squads and psychological and physical torture? Where must the line be drawn between those who gave the orders and those who carried them out, or both? • How do new democracies deal with the fact that some perpetrators may remain part of the new government or security forces, or hold important positions in public life? A related question is whether this holds the new democracy at risk, and whether there is any alternative. There are moral, psychological, and political arguments for taking a nation’s past seriously. The moral imperative can be summed up in the commandment from the Jewish tradition: “to remember is the secret of redemption”. The psychological argument has been advanced in particular by a school represented by Alexander and Margarete Mitscherlich, who assert that it is as bad for nations as it is for individual people to suppress the memory of evil or mournful experience. And finally, the political argument is succinctly cap-

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tured in George Santayana’s famous statement that “Those who forget the past are doomed to repeat it”. There is, however, another side to this, which has been highlighted by Professor Bruce Ackerman of Yale Law School, among others. He has strongly criticized those who “squander moral capital in an ineffective effort to right past wrongs – creating martyrs and fostering political alienation rather than contributing to a genuine sense of vindication”.1 Indeed, he continues, “moral capital is better spent on educating the population in the limits of the law rather than engaging in a quixotic quest after the mirage of corrective justice”.2 In The File, Timothy Garton Ash has similarly stated that there is a defensible position, which calls for moving on into the new future and not allowing the past to destroy or inhibit the new democracy.3 At the crossroads of these positions is the insightful argument of historian Ernest Renan who maintains that, “every nation is a community both of shared memory and shared forgetting”. He adds, “and I would even say historical error is an essential factor in the history of a nation”.4 Historically, the advocates of forgetting are many and impressive. They range from Cicero in 44 B.C., demanding only two days after Caesar’s murder that the memory of past discord be consigned to eternal oblivion, to Winston Churchill in his Zurich speech two-thousand years later recalling Gladstone’s appeal for a ‘blessed act of oblivion’ between former enemies. Some of the leadership of the new South Africa believed that serious accounting for the past was not only right and moral, but also prudent in terms of developing a stable and peaceful future. Our argument was essentially that ignoring the past would perpetuate myth and error, and build a future based on lies and half-truths.5 By lapsing into amnesia, the danger arises of leaving people in constant victimhood, instead of enabling them to become survivors who move forward with their lives. Victims have the right to know at whose hands they and their loved ones suffered. To delay and/or suppress the truth makes it difficult, if not impossible, to uphold the rule of law and develop a culture of human rights. Moreover, countries are often haunted by their past. Two of the more prominent examples of this are Germany in the 1950s and Switzerland much more recently. A conscious act of memory frees us from being paralyzed by the past.

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II. Punitive Response to Human Rights Violations The Nuremberg Trials The Nuremberg Trials constitute a watershed moment in international justice. The Trials, which lasted from 1945 to 1949, were conducted by the victorious Allies following the crimes committed by Nazi Germany directly preceding and during the Second World War. Nineteen Nazi leaders were convicted of crimes against humanity, among other charges; ten were executed by hanging. More than fifty years later, discussion still rages on the merits of the Nuremberg Trials. When it is borne in mind that the British Foreign Office and Winston Churchill himself, together with Stalin, proposed lining the Nazi leaders up against the wall and shooting them without trial as late as 1944, it is to the credit of Justice Jackson and others that trials were actually held. The Trials were often referred to as ‘victors’ justice’, in part because of the controversial prosecution of ‘aggression’ but also because many critics, and some legal experts, believe that due process was not observed. Obviously, many Germans viewed the Trials simply as revenge by the Allies for the Holocaust and other war crimes committed by Hitler and his Nazi Party. The Tokyo Trials were equally contentious and they were followed by trials held by many of the European countries, which had been overrun and occupied by the Nazis during the Second World War. Despite these reservations, there can be no denial that the Trials represented the first concerted action by the international community to deal in a systematic manner with what Nino described as ‘radical evil’.6 When one bears in mind the thousands and thousands of people who must have been involved in the atrocities in light of the nineteen Nazi leaders convicted in Nuremberg, it illustrates the limitations of law and the built-in, ad hoc amnesty for those who were never brought before the court. This points to the serious problem of selectivity, which is the only way to assign individual responsibility for mass atrocities, but also means that many of those responsible will escape prosecution. This process of selectivity diminishes the sense that perpetrators have all been called to account for their actions, and it tarnishes the hallmark of fairness that should characterize prosecutions and the upholding of rule of law.

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Tribunals: The International Criminal Tribunals for the former Yugoslavia and Rwanda In 1992, the Security Council of the United Nations adopted Resolution 780, which established the appointment of a Commission of Experts to investigate violations of international humanitarian law in the former Yugoslavia. This very important step led, ultimately, to the appointment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague. This was forty years after Nuremberg, but quite clearly influenced by the Nuremberg Trials. Following the 1994 genocide in Rwanda, which, in a brief period of three months, saw approximately 800,000 people slaughtered, the Security Council established the International Criminal Tribunal for Rwanda (ICTR). Despite severe challenges and delays in both tribunals, the Hague Tribunal in particular has nevertheless succeeded in bringing several leading culprits to trial. The indictment against Slobodan Milošević was the first ever to be brought against a sitting head of state. And, over half a century after the ratification of the Geneva convention on the Prevention and Punishment of the Crime of Genocide, the Appeals Chamber of the ICTY unanimously found that “genocide was committed in Srebrenica in 1995”, and sentenced Radislav Krstić to 35 years for aiding and abetting genocide.7 As of August 2002, 25 investigations still needed to be brought to the indictment stage, but could potentially result in an additional one hundred Accused by the end of 2004. The UN Tribunals can be credited with many successes, and I want to refer to some of these. They have brought significant advances to humanitarian law, especially in the following three respects: first, the illogical and politically motivated distinction between the protection of civilians in civil war as opposed to international armed conflict has been narrowed almost to the point of extinction, as evidenced by the judgements of the ICTY in Tadić and other cases; secondly, the appropriate recognition has been achieved of gender-related crimes, and especially systematic mass rape, as an instrument of war including, in some cases, genocide; thirdly, there has been an ending of the denials that war crimes, including genocide, were committed both in the Balkans and in Rwanda. This was not the position prior to the trials. In this respect the tribunals have served a purpose similar to that of the Truth and Reconcilia-

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tion Commission. Further, those successes were the main cause of the movement to the Rome Conference resulting in the establishment of the International Criminal Court. It should also not be forgotten that the Tribunals have effectively ended the situation of impunity for war criminals. In many ways, the Yugoslavia Tribunal has failed to reach its original goals. As of July 2003, 91 indictees had appeared before the ICTY, but only 37 had been tried. There are to date eighteen fugitives with public arrest warrants against them, including Ratko Mladić and Radovan Karadzić, the military and political leaders of the Serb Republic respectively, in addition to an unknown number of fugitives under sealed indictments. One of the most serious drawbacks of ad hoc tribunals, certainly in the cases of the Hague and Rwanda, is the length of time a trial takes. Dusko Tadić was the subject of the ICTY’s first trial. The case only lasted 75 days, but from the moment he was in the custody of the Tribunal, April 24, 1995 to the final appellate decision on January 26, 2000, almost five years had lapsed. Furthermore, the Tribunal, with its major focus on prosecution, has not been able to achieve any meaningful reconciliation in the former Yugoslavia. Perhaps it was asking too much of the Court to attempt this, but it certainly was part of its mandate. The International Criminal Tribunal for Rwanda suffered even more reversals and difficulties. The ICTR is based in Arusha, Tanzania, although its investigative base is in Kigali, Rwanda. Nine years after its creation and more than five years since the first trial in 1997, the ICTR has handed down eleven judgments, including one acquittal as of June 2003. The ictr has detained at least sixty indictees, yet some of the masterminds of the genocide, whether indicted by the ICTR or not, are said to be walking free. The International Crisis Group described the performance of the ICTR as ‘lamentable’, noting that between July 1999 and October 2000, the ICTR only heard one ‘substantial case’, Ignace Bagilishema, the former mayor of the village of Mabanza. Reports of mismanagement, corruption, and alleged irregularities in ICTR’s operations led to reform efforts that have gradually increased ICTR’s capacity and effectiveness. Nevertheless, bearing in mind that the annual budget is approximately $90 million, the limited achievements of the Rwanda Tribunal are extraordinary. The point is that while the idea of an international tribunal is a noble one, its ability to fulfill its mandate is almost impossible to carry out and one has to

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question whether the amount of money and resources that have been made available to these two Tribunals was warranted, considering the contribution they have made to accountability in the broadest sense of that term. The Tribunal’s mandate to contribute to reconciliation in Rwanda was made even more difficult by the government’s arrest and detention of more than 120,000 people, most of whom languished in jail for many years without trial. It is not surprising that the government has finally decided to release a large number of these detainees. It is also not surprising that the government has decided to move away from the formal courts and establish an indigenous system of justice known as ‘Gacaca’. (This word is derived from the Kinyarwanda word meaning a patch of grass, usually under a tree where people used to meet to discuss or settle disputes within communities.) Achieving justice through prosecutions is not as easy as it would seem. The International Criminal Court These ad hoc tribunals will be phased out and in their place will be the newly established International Criminal Court. The International Criminal Court (ICC) is a treaty-created body whose powers are derived from the consent of the state parties. This means that whilst it is a Court, its findings are binding only on those who have ratified the treaty. The fact that the United States, China, and Russia have not ratified the treaty presents a significant and serious handicap to the work of the Court. The Court’s jurisdiction applies only to criminal conduct that occurs after the statute’s entry into effect on 1 July 2002. It is hoped that because this is not an ad hoc body, but a permanent body, that it will be able to conduct its affairs and make its decisions not on selectivity, but on a clearly defined program. It is also hoped that the Court, with its eighteen judges, will not make the same mistake of spending an inordinate amount of time on a single case nor incur vast expenditure. The Court can only act when states are either unwilling or unable to deal with human rights violations that have taken place in that state; the first task of the Court is to encourage and enable those countries to conduct their own programs of justice. The Security Council has the right to refer certain matters to the Court, but because several powerful permanent members have yet to ratify the treaty, they may use this right sparingly.

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Thus, even though we have advanced to the setting of a permanent International Court, there are still shortcomings and it is impossible to deal with the true intent of justice by court procedures alone. The aim of transitional justice is surely wider than punishing the guilty. It is the establishment of a just society, which means establishing and consolidating democratic institutions. National courts will continue to play a major role in dealing with excesses in their own countries, but many of these countries do not have adequate legal systems in which to deal fairly, impartially, and efficiently with matters that deserve to be brought to trial. It would make far more sense, therefore, for additional revenue and human resources to be placed at the disposal of these legal systems, thus enabling national courts to prosecute their own crimes rather than to leave it to an international court.

III. The Limits of Law As noted above, it is impossible to prosecute all offenders, which introduces selectivity. This in turn undermines the idea of individual criminal responsibility, so fundamental to our understanding of the rule of law. Other problems also abound. Trials are often lengthy and very costly, and international tribunals are subject to political pressure. Moreover, their almost exclusive focus on the perpetrators is to the detriment of victims. An additional complicating factor is that national legal systems are often in disarray. And finally, punishment cannot be the last word, because of so many of the aforementioned issues that remain unresolved.

IV. A Holistic Approach Accountability The rule of law and the fair, even administration of justice deserve our greatest respect. No society can claim to be free or democratic without strict adherence to the rule of law. Dictators and authoritarian regimes abandon the rule of law at the first opportunity and resort to brazen power politics leading to all manner of excesses. It is of central importance, therefore, that those who violate the law are punished. But there are limits to law and we need to em-

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brace a notion of justice that is wider, deeper, and richer than retributive justice. It is not only impossible to prosecute all offenders, but an over-zealous focus on punishment can make securing sustainable peace and stability more difficult. Further, to achieve a just society, more than punishment is required. Documenting the truth about the past, restoring dignity to victims, and embarking on the process of reconciliation are vital elements of a just society. Equally important is the need to begin transforming institutions; institutional structures must not impede the commitment to consolidating democracy and establishing a culture of human rights. It follows that approaches to societies in transition will be multi-faceted and will incorporate the need for consultation to realize the goal of a just society. Truth Recovery One of the non-judicial mechanisms that has gained great prominence over the last ten years is the truth and reconciliation commission. It was first used in Latin America but has since spread to many other parts of the world. There have been approximately 27 such commissions, with varying degrees of success. Currently, there are at least four commissions underway, namely, Morocco, Sierra Leone, East Timor and Ghana. Several others are in the offing, including the Democratic Republic of Congo, Liberia and Iraq. The truth commission, as indicated by its title, is concerned first and foremost with the recovery of truth. Through truth-telling, the commission attempts to document and analyze the structures and methods used in carrying out illegal repression, taking into account the political, economic and social context in which these violations occurred. In some ways, it is unfortunate that the word ‘truth’ is used. Beyond its Orwellian overtones, many critics rightly feel that it is impossible for all the truth to ever be known. Antjie Krog, a South African poet and writer, tells of her own difficulty with the word ‘truth’: The word truth makes me uncomfortable. The word truth still trips the tongue. I hesitate at the word…. I’m not used to using it. Even when I type it, it ends up as either ‘turth’ or ‘trth’. I’ve never bedded

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that word in a poem. I prefer the word ‘lie’. The moment the lie raises its head, I smell blood because it is there…where the truth is closest.8 Reconciliation A number of commissions have talked not only about truth, but also about reconciliation. If the word ‘truth’ conjures up problems for many people, so does the word ‘reconciliation’. It has religious connotations, especially in the Christian faith, and there are many who would prefer that the word and the concept of reconciliation not be used in commissions, which are seeking to recover the truth and focus on victims. At its best, reconciliation involves commitment and sacrifice; at its worst, it is an excuse for passivity, for siding with the powerful against the weak and dispossessed. Religion, in many instances, has given a bad name to reconciliation, because its representatives have often joined forces with those who exploited and impoverished entire populations, instead of being in solidarity with the oppressed. When reconciliation calls for mere forgetting or for concealing, then it is spurious. In Argentina, the concept of reconciliation is regarded with deep skepticism. In that country, the Roman Catholic Church, in large measure, supported the military junta, and the perpetrators of human rights violations were always the first to call for reconciliation. The same is true of Rwanda, where religious groups and priests and nuns participated in the massacre of the Tutsis. In this context, talk about reconciliation is highly suspect and can be viewed as a call for amnesia. Unless the call for reconciliation is accompanied by acknowledgment of the past and the acceptance of responsibility, it will be dismissed as cheap rhetoric. Perhaps one of the ways in which to achieve at least a measure of reconciliation in a deeply divided society is to create a common memory that can be acknowledged by those who created and implemented the unjust system, those who fought against it, and the many more who were in the middle and claimed not to know what was happening in their country. The theologian H. Richard Niebuhr put it succinctly: Where common memory is lacking, where men and women do not share the same past, there can be no real community and where community is to be formed, common memory

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must be created. The measure of our distance from each other in our nations and our groups can be taken by noting the divergence, the separateness and the lack of sympathy in our social memories. Conversely, the measure of our unity is the extent of our common memory.9 The process of reconciliation can begin at different points in the transition of a country from a totalitarian state to a new form of democracy. For some, it begins at the negotiation table; for others, when perpetrators are indicted and prosecuted. The release of political prisoners or the acceptance of a new constitution that guarantees fundamental freedoms may facilitate the beginning of reconciliation. For others, it is when free and open elections are held in which all citizens can participate. There are many starting points, but it is never a one-step process. The process is ongoing, especially in countries where oppression has been deep and lasting. If reconciliation is to succeed, it must have an impact on the life chances of ordinary people. In my view, reconciliation, both as a process and a means of seeking an often-elusive peace, must be understood through the lens of transitional justice. Reconciliation stands a better chance and is better understood if victims believe that their grievances are being addressed and that their cry is being heard, that the silence is being broken. Reconciliation can begin when perpetrators are held to account, when truth is sought openly and fearlessly, when institutional reform commences, and when the need for reparation(s) is acknowledged and acted upon. The response by former victims to these initiatives can increase the potential for greater stability and increase the chances for sustainable peace. The process of reconciliation has often been hindered by the silence or the denial of political leaders concerning their own responsibility and the failure of the state. On the other hand, however, when leaders are prepared to speak honestly and generously about their own involvement or, at least, the involvement of their government or the previous government, then the door is open for the possibility of some reconciliation amongst citizens. President Aylwyn of Chile highlights what I believe is the irreducible minimum for reconciliation to have a chance, and that is commitment to truth and justice. When he received the Report of the Chilean Truth and Reconciliation Commission, he emphasized the following point:

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This leaves the excruciating problem of human rights violations and other violent crime(s), which have caused so many victims and so much suffering in the past. They are an open wound in our national soul that cannot be ignored; nor can it heal through mere forgetfulness. To close our eyes and pretend none of this ever happened would be to maintain at the core of our society a source of pain, division, hatred and violence. Only the disclosure of the truth and the search for justice can create the moral climate in which reconciliation and peace will flourish.10 Institutional Reform For truth and reconciliation to flourish, serious and focused attention must be given, not only to individuals, but also to institutions. Institutional reform should be at the very heart of a transformation. The truth commission is an ideal model for holding together both retrospective truth and prospective needs. Unfortunately, most truth commissions have chosen to focus, almost entirely, on individual hearings. This is important and critical, but if commissions were to hold institutional hearings, it would enable them to call to account those institutions directly responsible for the breakdown of the state and the repressive measures, which were imposed on citizens of that state. In at least one commission, an opportunity was created for spokespersons from the military, the police, the security forces, politicians, faith communities, legal representatives, the media and labor to give an account of their role in the past and – importantly – how they saw their role in the future. In other words, it is simply not enough to be merely concerned about the past. We must deal with it, but we must not dwell in it. We deal with the past for the sake of the future. On a recent visit to Serbia, it was quite clear that one of the major problems preventing that country from moving out from its very dark and ominous past into a brighter democracy is that the institutions remained almost exactly the same. The same policemen were controlling the police forces; the same generals were controlling the army. And this was true of the major institutions. As I moved from one group of leaders to another, it was clear that unless and until institutions are radically restructured, there will be little opportunity for growth, for development and for peace in Serbia. This is not only

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true of Serbia, but it is true of the former Yugoslavia as a whole. It is true of all states that have failed and are in transition. In deeply divided societies where mistrust and fear still reign, there must be bridge building and a commitment, not only to criminal justice, but also to economic justice. For that to be a reality, institutions, as well as individuals, have to change. Reparations Reparations, too, have a long history, but until now have not received sufficient systematic attention. The individual reparations issued by the Federal Republic of Germany were a watershed moment in the history of reparations. Until 1952, reparations were solely an inter-state affair – payments by the losing state to the victorious one, as in the Versailles Treaty. Reparations to victims of the Holocaust were the first instance of a massive nationally sponsored reparations program to individuals who had suffered gross abuses of their human rights. It is worth emphasizing that from the standpoint of the victims, the reparations program occupies a special place in a transition to democracy. Reparations are, for them, the most tangible manifestation of the efforts of the state to remedy the harms they have suffered. Criminal justice – even if it were completely successful, both in terms of the number of perpetrators accused (far from being the case in any transition) and in terms of results (which are always affected by the availability of evidence, and by the persistent weaknesses of judicial systems) – is, in the end, a struggle against perpetrators rather than an effort on behalf of victims. From truth-telling, victims will obtain significant benefits that may include a sense of closure derived from knowing the fate of loved ones, and a sense of satisfaction from the official acknowledgment of that fate. But, in the absence of other positive and tangible manifestations, truth, by itself, can easily be considered to be an empty gesture, as cheap and inconsequential talk. Finally, institutional reform will always be a long-term project, which affects the lives of the victims only indirectly. Reparations play an important role for victims and are one of the few efforts undertaken directly on their behalf. However, a freestanding reparations program, unconnected to other transitional justice processes, is also more likely to fail, despite its direct efforts for victims. The provision of repara-

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tions, without the documentation and acknowledgment of truth, can be interpreted as insincere – the payment of ‘blood money’. In many ways, the dilemmas and challenges in reparations are a microcosm of the overall challenges of transitional justice. How does one balance competing and legitimate interests in redressing the harms of victims and ensuring the democratic stability of the state? Similar to other areas of transitional justice, such as truth-telling or institutional reform, simple judicial decisions cannot provide the comprehensive solutions demanded by such interests. Rather, solutions must be found in the exercise of judgment and creative combination of legal, political, social, and economic approaches. Indeed, the success of reparations programs, and transitional justice strategies in general, depends on the ability to form broad political coalitions. Victims, by virtue of their resilience and strength, in coalitions that demonstrate the resolve and solidarity of society as a whole can become, in Kahlil Gibran’s words, “a voice that causes the heavens to tremble”.

V. Conclusion There are enormous difficulties in pursuing justice in a normal situation, but when one attempts to do this in countries undergoing transition, the problems are intensified. There is a need to balance two imperatives. On the one hand, there is the need to return to the rule of law and the prosecution of offenders. On the other hand, there is a need for rebuilding societies and embarking on the process of reconciliation. In helping to make states work, it is important, therefore, to balance accountability with the shoring up of fragile emerging democracies. The overall aim should be to ensure a sustainable peace, which will encourage and make possible social and economic development. The answer is surely not either/or. Once it is agreed that there must be the balancing of imperatives, then it is surely both/and. In other words, we should deal with the past and not dwell in it, but the measures that are taken have to be informed by the nature of each transition and the political space for accountability. For example, when the bombing stopped in Afghanistan, some advocated the immediate introduction of trials and prosecutions. However, it was clear that the major problem confronting Afghanistan was not, in the first instance, accountability, but security, the return of the refugees, food for

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those who were in danger of starving, and a measure of good governance so that law and order could be introduced and maintained. The same is true of Iraq. Whilst it is desirable to prosecute those who committed human rights violations during Saddam Hussein’s dictatorship, the first imperative was to stop the looting, to return to some measure of law and order, and to enable Iraqi leaders and people to begin taking part in future decision making, which will restore some semblance of stability and peaceful co-existence. It is only then that we can consider the options, judicial and non-judicial, which will meet the urgent needs of a state in conflict with occupying forces and a history of brutality and division.

Notes 1.

Bruce Ackerman, We the People: Transformations (Cambridge, MA: Harvard University Press, 1991). 2. Ibid. 3. Timothy Garton Ash, The File: A Personal History (New York: Random House, 1997). 4. Ibid. 5. See Alex Boraine, A Country Unmasked: Inside South Africa’s Truth and Reconciliation Commission (Oxford: Oxford University Press, 2000). 6. Carlos Santiago Nino, Radical Evil on Trial (New Haven and London: Yale University Press, 1996). 7. See Press Release, Appeals Chamber Judgement in the Case The Prosecutor v. Radislav Krstic, 19 April 2004. 8. Antjie Krog, Country of My Skull (New York: Crown Publishers, 1999), p. 36. 9. H. Richard Niebuhr, The Story of Our Life, quoted in Joel Rosenthal, “Making Peace: Dilemmas of Reconciliation,” Carnegie Council on Educational and International Affairs, Lecture #4, 2004. 10. See Claudio E. Durán, “‘El Londonazo’, Struggling Against Institutional Amnesia in Post-Pinochet Chile,” Information Services Latin America, 11 December 1998.

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