by Karabo Rajuili, South Africa

It’s the third week of classes, and second week of tribunal site visits. On the back of visits to the International Court for the former Yugoslavia (ICTY), and the Special Court for Sierra Leone (SCSL), yesterday, visiting the Special Court for Lebanon (SCL) presented us with the opportunity to critically compare the different tribunals and the evolving character, and complexities of international justice. Although there are similarities, what is evident is that each case, and therefore tribunal, is unique, yet also builds upon experience and jurisprudence of preceding international tribunals.

Throughout the day, multi-national staff from the various divisions at the SCL gave their candid appraisals of the opportunities and limitations of the court. A number of features which make the SCL unique were discussed and explored, one being the controversial ‘trial in absentia’ provision and another being participation of victims in the SCL, which is an issue of crucial importance and a first for an international tribunal. This process is intended to grant victims the right to participate in the trial and to be represented by counsel. It has been argued that ‘victims are more likely to experience satisfaction with the criminal justice system if they perceive that their voice has been heard‘. The court received 73 applications from victims of the 14 February 2005 bomb attack, which killed popular ex-Prime Minister Rafik Hariri and 22 other people, 58 which have been approved.

However, as the frank discussions of the day would reveal, there are limitations and unresolved questions. Victims cannot directly seek compensation through the Tribunal; rather this process is deferred to national courts which could be a lengthy and cumbersome process. Furthermore, the three legal representatives are assigned will represent the 58 victims, rather than the
victims themselves having choice in representation. The provision also highlights the complexities of trying to strike a balance between common law system (no status for victims) and civil law (full rights to participate), resulting in a compromise position, where the voice of the victim in an adversarial system still sits uneasily.

Is the process without its flaws? No. However, it does raise important questions of what it is to seek justice for those who have suffered most, amidst procedural imperfections and difficult compromises. For the SCL, the test of whether victim participation is a useful innovation will only be fully realised at the conclusion of the STL’s current mandate, the insights of which should serve those of us involved in field, with greater understanding not only of the development of jurisprudence, but more importantly how best to give victims a voice in international justice mechanisms.

by Saskia Nauenberg, United States of America

The story of Sierra Leone’s rebel leader Issa Sesay left many of us conflicted: Was it fair? What sentence should he have received? Does the Special Court of Sierra Leone positively contribute to peace-building efforts in Sierra Leone? Will it help deter future crimes around the world? While lawyers make arguments one-way or the other, opinions are polarized both in Sierra Leone and the international community; many wonder if a single moral answer is within reach. So I present this dilemma to you in the blogger community by sharing a sample of some of the issues our symposium is addressing. These questions emerged on Monday after watching the film “War Don Don” and meeting with prosecutor Brenda Hollis. Issa Sesay was recruited to the RUF rebel movement as a teenager. He was not one of the main conspirators behind the conflict (Charles Taylor or Foday Sankoh). As the film described, he was enlisted under false pretenses and hopeless circumstances. Once a part of the RUF, he argued he would have been shot and killed if he tried to leave. Associates explained he was a good fighter, and rose in the ranks. Eventually he became a battlefield commander. The prosecution at the Special Court argued that under his orders and authority, violence raged throughout Sierra Leone. Mass atrocities were committed: thousands suffered the amputation of one or more limbs, tens of thousands were murdered, women and girls were raped, captured, and taken as sex slaves, and child soldiers were abducted. My description can’t adequately convey the horrors of the civil war. However, the defense claimed that Issa wasn’t linked to all these crimes. They contended that Issa’s convictions were based on crimes that had occurred by different people in different areas. As a commander, what responsibility does Issa bear?

In 2000, Foday Sankoh and 400 RUF soldiers were captured and arrested. 29-year- old Issa was elected as the interim leader by West African presidents. In this new role, Issa went against the will of the RUF and its other leaders, to end the Sierra Leone conflict and disarm the rebel movement. He worked with UN commander Daniel Opande, who later said he was “like a son”. Issa helped end the war without assuring his own amnesty, and was later picked up by the Special Court and tried for war crimes. However the film explained “a lot of people [in Sierra Leone] see Issa as a savior”. A radio program, covering the Special Court posed the question: “what kind of message does this send to other warlords?” Issa participated in peace, and got the longest sentence from the court: 52 years. The issue is further complicated when we consider how widespread the responsibility for violence was. In order to convict Issa Sesay and other leaders of the conflict, former soldiers were paid to give testimony. These individuals had committed their own atrocities, but were not held accountable due to the court’s limited mandate.

Instead they were given generous compensation for their witness testimony and sometimes relocated to first world countries. Should these war criminals be able to profit from the circumstances? The United Nations and the government of Sierra Leone spent more than $200 million on the Special Court. Meanwhile, the film concluded with statistics showing that Sierra Leone is the third poorest country in the world. After 11 years of war many people want food, clean water, health care, schools, and basic employment. International funding is complex, and money donated for one thing can’t just be used for another, but it’s important to bear in mind that millions of dollars were spent on a court that sentenced 9 people (13 were indicted but 3 died). This makes each case ever more important. Did the Special Court for Sierra Leone bring justice? What kind of justice? And justice for whom?

While I can’t answer all these questions, I believe it’s important to provoke this type of debate. One thing is for sure: IPSI participants who go on to be leaders in the field of post- conflict transitions will be challenged to reconsider and redefine what we mean when we talk about “justice”.

by Rosemary Grey, Australia

The highlight of Monday’s visit to the Special Court for Sierra Leone (SCSL) was an insightful address by Brenda Hollis, Chief Prosecutor of SCSL. In a comment that reflected the influence of restorative justice principles on international criminal law, Madame Hollis named the victims in Sierra Leone as the primary stakeholders of the Court. It was fitting, therefore, that she prefaced her remarks on the successes of the Court by saying that ultimately, it is the victims’ opinions that matter the most.

But from her perspective, the Court could be deemed a success because it has fulfilled its mandate to investigate and prosecute those who bore the greatest responsibility for the crimes committed in the conflict in Sierra Leone. In doing so, it made salient contributions to the jurisprudence in the areas of sexual violence, forced marriage, the recruitment and use of child soldiers, and attacks on peacekeepers. Prosecutor Hollis also praised the Court’s outreach program for managing the victims’ expectations and ensuring that they felt connected to the work of the Court, notwithstanding its relocation to The Hague for the Taylor trial.

The Prosecutor’s approach to evaluating the SCSL’s success by reference to its mandate echoed the words of Professor Dov Jacobs, who on the first day of this symposium suggested that institutions should be judged according to their function – a court should not be judged on its value as a truth commission; a truth commission should not be judged on its adherence to fair trial standards.

This lesson about judging institutions on the basis of their function will serve us well in our work as critical participants in the transitional justice process. However, as potential architects of that process, we should go beyond asking “what is the mandate of this institution?” and also consider what the institutions’ mandate should be, mindful of the context in which it operates.

Did the situation in Sierra Leone call for a court with a mandate to try those most responsible for the crimes? Did the situation in South Africa call for a court with a mandate to try those responsible for the violence of apartheid alongside the truth commission What other mandates should be given to institutions in response to a particular conflict? These questions are difficult, perhaps unanswerable, but they are worth reflecting on as we design our framework for approaching transitional justice in future conflicts.

by Tina Svalina, Bosnia and Herzegovina

Once the dynamic duo, Ambassador Jacques Paul Klein and Bill Stuebner hit the  stage, they were unstoppable. Although, the situations addressed were not in any  way comical, both speakers incorporated some dark humor to draw us deeper into the conversation and at a couple points also allowed for a peek into the  incomprehensible Balkan psyche.

Amb. Klein has served as a Transitional Administrator in Eastern  Slavonia, Baranja and Western Sirmium with the rank of Under-Secretary General, as well as Principal Deputy High Representative for Bosnia and Herzegovina, and  most recently as Special Representative and Coordinator of United Nations  operations in Liberia from 2003 – 2005. Bill Stuebner worked as the special advisor for the Office of the Prosecutor at the International War Crimes Criminal Tribunal for the former Yugoslavia, for OSCE, and as the Executive Director of the Alliance  for the International Conflict Prevention and Resolution. Their combined experience  allowed for a comprehensive analysis of UN missions and international war crimes  tribunals, and touched on truth and reconciliation commissions. Amb. Klein’s  presentation on his mission in Liberia shed light on the complexity within UN  missions, a complexity which was mirrored by the many cultures present in his  battalion. He discussed the challenges of achieving disarmament, establishing rule  of law, a judiciary and and restoring state authority, as steps to a successful  mission. Furthermore, he asked “is the justice you get, the justice you really  want?” We have found that justice is not the same for everyone. In many conflicts  it is hard to distinguish who’s justice it is we are looking for. Are we there to  restore the lives of the victims, to gain peace of mind because we initially turned  our heads pretending not to see or implemented ineffective half measures to make  it look like we were doing something?

Both speakers highlighted that it is often difficult to draw a clear line between  victim and aggressor. As in the case of the former Yugoslavia, where war crimes  and crimes against humanity were committed by all sides. The ICTY mandate  was to prosecute those who were most responsible. Stuebner explained that the first case, Tadić, was a low hanging fruit that was picked for the sole purpose of showing the international community that something was being done and put ICTY on the map. Again the question arises, whose justice is it? That of the international community, that of the victim, or that which we see in our heads as compensation enough for survivors of tragedies such as Srebrenica?

by Ruth Murambadoro, Zimbabwe

Although Liberia is a founding member of the United Nations and African Union (former Organization for African Union), it has not been spared from the risk of  destabilizing global peace and security. Its capacity to invest in global peace and security were eroded in 1980 through a military coup which overthrew the American-Liberian leadership henceforth igniting a long trail of political and economic instability. The country has suffered from two successive civil wars resulting to deaths of over 250 000 civilians and hundreds of thousands displaced.

Though a peace deal was signed in 2003 shifting the political atmosphere to democratic ruling and consequently the successful election of the first black female head of state in Africa President Ellen Johnson Sirleaf in 2005 and re-election in 2011, the country still has a long way to go to ensure that 85% of its population currently living below the international poverty line attains a sustainable livelihood. Ambassador Jacques Paul Klein was privileged to serve as Special Representative and Coordinator of United Nations Operations in Liberia from 2003-2005.

During his term of service he facilitated the post-conflict transitions and gathered a lot experience on conflict management. Among the many lessens he gained is that external facilitation should never take for granted all the dynamics of a conflict (i.e internal and external). He went  further to mention that one must live next door to someone for a great amount of time in order to develop a deep sense of how pathological hatred develops among societies. The worst mistake of any intervention procedure is importing ideas to another state because they are mainly good at delivering a short-term solution to the dispute whereas a homegrown approach although it takes longer to bring the desired results, it gives the locals more room to resolve their problems using familiar mechanisms. Therefore any conflict management mechanism should be flexible and acknowledge that conflict is inevitable in any real society because humans do not always share the same interests.

by Maria Morell, Argentina

As days go by, we are going deeper and deeper into the analysis of concrete case studies of post conflict transitions. After reviewing the Argentina transition and the unstopping seek for justice and the “right for truth”, and the South Africa’s reconciliation process in which the truth telling process conducted through the Truth and Reconciliation Commission served a crucial role in the healing of the wounds of past, during the past two days, two lecturers joined the Symposium to illustrate us in the transition in the Former Yugoslavia and Liberia: William Stuebner, Former Special Advisor to the Prosecutor of the ICTY, and Ambassador Jacques Paul Klein, Special Representative of the Secretary General to Bosnia and Herzegovina, and Coordinator of UN Operations in Liberia.

Ambassador Klein introduced the practical examples of how complex a setting a peacebuilding mission is. There is virtually no one aspect of a society that remained unaffected by the struggles of war. Security and stability, justice and reconciliation, governance, protection of the population, economic recovery, governance and state building, all have to be achieved. During yesterday’s session there was a single aspect that grabbed my attention: it took months after the settlement of the UN Mission in Slavonia to re-establish a local “stamp” and bring the post office to function again. The example of just setting up a stamp represented for me in this context made me reflect upon what the word “statebuilding” means. The multidisciplinary group of young professionals that we are, has donated vivid contributions to all the discussions. Some of us coming from law will extremely defend justice, others will focus more on the reconciliation. Together we are influencing each other to understand that one aspect should not exclude another, and that there will be many challenges, infinite challenges, from facilitating the re-creation of social bounds, to respecting the individuality of every victim; from undergoing the reconstruction of the mayor political institutions, to facilitate the rebuilding of neighbor’s trust; from the reconstruction of roads, buildings to a simple piece of paper as a “stamp”.

Focusing on his own experience as part of the visionary group of leaders that made possible the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY), Stuebner, led fruitful briefings and debates. In that process, as he mentioned, he had the opportunity to meet the one of the formers prosecutors of the Nuremberg Tribunals, which he described as an amazing experience. In the creation of the ICTY, for the first time after the Nuremberg and Tokyo trials, the international community joined effort in 1993 to prosecute war criminals. I admire these men and women presented to us these past few days, as well as my fellow participants, working tirelessly to achieve their ideals for peace and justice.

by Colina Cole, United States of America

The Hague Symposium cohort visited the International Criminal Tribunal for the former Yugoslavia (ITCY), which was established to prosecute high ranking officials for war crimes in the former Yugoslavia that occurred from 1991 an onwards. After indicting 161 persons, the ICTY’s final criminal proceedings for Ratko Mladic, Goran Hadzic and Radovan Karadzic are tentatively scheduled to conclude by December 2014. The Hague Symposium participants raised questions regarding the legitimacy of the international criminal courts and their ability to impose their legal statute over sovereign nations. More importantly, what has the international community learned from this transitional justice mechanism? Participants grappled with the need for international interventions on behalf of citizens as it relates to human right abuses by governments; yet the group was cautiously optimistic about the ICTY’s effectiveness as it relates to post-conflict transitions.

The Balkans remains ethnically and religiously divided. The national wounds from past grievances are present, and the outbreak of another war remains a likely possibility. The continuous tension between peace and justice is in the forefronts of everyone’s mind. Conflict resolution becomes conflict management. Facing the harsh reality that coexistence is a long tenuous process that is sometimes only achieved after massive killings is a difficult adjustment. Where do we go from here? “People don’t fight over facts; they fight over what they believe,” stated William Stuebner as he began today’s discussion regarding The Former Yugoslavia. Stuebner’s presentation was followed by Ambassador Klein who engaged us in a provocative discussion about the Balkans war. The purpose of the ICTY was to establish the facts and remove all means of denial from the perpetrators of genocide from this war. No longer will people be able to hide behind “government orders” as an excuse for atrocities and grave violations of human rights abuses. The students from The Hague Symposium are determined — it is back to the drawing board. We recognize that there is no perfect solution, but the desire to help human begins find a more peaceful way to live together remains paramount.

Should tribunal courts like the ICTY continue to be erected? And do these tribunals truly serve justice? Debates over the United Nations security statue, international humanitarian law, primacy law, and impunity laws quickly ensured. There are obvious deficiencies within international institutions, but not obvious solutions about how to bridge the divide. Was the ICTY helpful with providing justice for the victims? And, in what areas did it fail?

The learning curve is steep, and the complexities of this conflict require more engaging discussions like the ones we are having today while gaining a deeper understanding of justice, retribution, reparations, reconciliation, communal healing and national building.

by Melani Van Der Merwe, South Africa

The second week of The Hague Symposium has been amazing yet emotionally taxing and gripping…eye opening! Through the stories and pearls of wisdom shared by some of the world’s experts in post conflict justice and reconciliation efforts, we saw and felt what it must have been like to go through the processes of coming to terms with the effects of conflict. We were left imagining the pain of these broken societies that so desperately needed peace. This experience, in my mind, had two effects: Firstly, it brought us closer to our goal of holistically conceptualizing the processes involved in aiding the (re) development of peace in a society that needs it so urgently. Secondly it complicated the process as we gained a new understanding of the complexities and uniqueness of each case.

On Wednesday the conversation that was started on Tuesday afternoon on the subject of the South African case was continued by Mr Charles Villa-Vicencio. He used one Zulu word in his lecture that perfectly captures the compromise that happened in South African society and consequently led to the relatively successful transition from Apartheid.  In essence this is a focus on the greater good of society as opposed to what is good for the individual. It embodies most of what is meant by human rights as it suggests that an individual is human, only because of the existence of the human race. It looks past colour, religion, ethnicity, and only sees one big human race. Mr Villa-Vicencio made it clear that there is no such thing as a “copy and paste” model for transition, and that the timing for South Africa’s transition was perfect. However if there are three things that the world can learn from South Africa, this would be the following: that you don’t have to love your neighbour to live in peace; with great risk comes great reward and that compromise is the name of the game when it comes to transitional justice.UBUNTU

by Jesse Delbridge, South Africa

A difficult combination to achieve simultaneously is integration and self-determination,  especially considering that precious little economic integration has taken place since the  fall of the old regime. Whilst the transitional process gets the gold medal and is praised as  the world’s most successful, many outside observers who assume that South Africa has achieved this coveted status of “reconciled” would be shocked to find a society that is still very much segregated, albeit not officially or legally. A South African’s socio-economic position today, in the majority of cases, has its routes in the racial institutions of the old regime. The separation of wealth is now systemic and this is something that can’t be  remedied by forgiving, telling the truth or reforming institutions. As we are briefed by Charles Villa-Vicencio (Former National Director of Research for the South African TRC), I find myself imagining how the South African model could be applied in an ideal situation. Everything comes down to the framework, to the model. But if we  have learnt anything thus far, it is that each conflict requires a unique, tailor-made set of  approaches to address the multitude of problems a post conflict region will inevitably face. A well chosen metaphor by our  speaker considering the immense diversity of the country is the “Kaleidoscope”, since the divide is not as clear cut as ‘black’ or ‘white’  as some might think. I can’t help but scrutinize every detail, every bit of coloured glass, trying to figure out  what it was that, at some undefined point eventually allowed everything to “click into place”. The  Constitution recognizes 11 official languages, there are more than a dozen tribal groups each with a unique linguistic and cultural heritage, a history of immigration  from all over Europe, the decedents of indentured labourers from India and Dutch colonies in South-East Asia and significant  Jewish, Muslim and Hindu minorities. South African politicians don’t hesitate to capitalise  on this incredibly rich diversity either; Unity In Diversity was chosen as the country’s new  motto for a good reason. With such a multitude of groups, ethnic and otherwise, finally  sharing one nation, it is now more important than ever to emphasize a rhetoric of  coexistence coupled with the recognition of each group’s right to maintain their unique  identity.

One of our colleagues yesterday posed the question “how do we convince those in power that  it was in their interests to relinquish that power?” The role of the white corporate elite and  the owners of big business at the time of the transition is one that must not be ignored. In  light of the increasing global economic sanctions, these business leaders realized that  their economic interests were now also under threat. How could they survive the transition whilst still ensuring their interests were safe? The answer came in the form of Black  Economic Empowerment (BEE), an incredibly contentious issue that has been debated at length. It should be noted that I am examining one facet of an incredibly complex and controversial economic policy, and my views should not be taken for granted. A look at some of the Economist articles will leave you far more informed than this post. In short,  businesses are rated according to their percentage of black ownership. A higher rating means tax benefits, government funding and subsidies, among others. By selling large  share packages to a few, well connected leaders after the struggle, a company could  easily become “50% black owned”, empowering few and resulting in the new “black elites”  discussed yesterday. Top level integration is thus far easier than fairly and evenly  distributing ownership among a broader population base, those who still find themselves in  cycles of violence and poverty thanks to the success of Apartheid’s oppressive policies.

Additionally, the figures reveal that whilst there are a significant number of non-white South Africans holding non-executive positions (36%), only 4% are CEOs and 2% are CFOs.  Neither a real economic power shift or a shift in decision making power has occurred. A great lesson in PR, if nothing else. In 1994 Archbishop Tutu articulated this perfectly in saying that the new government “had stopped the gravy train only long enough to get on” and 18 years later this sentiment is  even more relevant. Whilst our institutions no longer embody the principles of Apartheid, the separation has arguably become a privatized one. Legally everyone has the right to  integrated schooling, healthcare and housing, regardless of race. Yet, those with the  financial capability can pay for private security to keep trouble makers out of their gated communities, can ensure their children go to private schools which show little racial  integration and can pay for privileged access to excellent healthcare, beyond the reach of  most of the population. As one of our previous speakers Jan Pronk fittingly remarked, the lifestyles of those in power are not negotiable.

I am eternally grateful to those individuals, including Mr. Villa-Vicencio, who in some way  contributed to the transitional process and made it their personal goal to ensure that an all out war was avoided. But forgiveness is not going to last forever and those feelings of  resentment and desires for change are going to return if our society still looks the same way it did before 1994. Whilst we have come a long way since the days of racial oppression and segregation, it is important to remember that a kaleidoscope is as fragile as it is beautiful, and can descend into chaos at the slightest fracture.

by Jenny Cook, United States of America

Yesterday we were privileged to hear from not one but two world leaders in transitional justice. It was a great crossroad between two very important subjects: justice and truth. Juan Mendez spoke in great depth about both and their connections and distinctions between each other. In his concluding remarks, he said that the shadow of the past casted a shadow on the future of the Argentine population. After many trials and a truth commission, reparations and reform they are in the process of finding both justice and truth, healing their wounds, and becoming a prosperous country.

When Charles Villa-Vicencio entered the room, with an illuminating and captivating presence, he opened the discussion of our second case study, South Africa. He spoke honestly about the past and we felt the love for his country and his people. He started with a story about his young grandson that is patiently awaiting his new baby sister and goes with his mother to get an ultrasound. He tells his Opa, Charles, that he has to see her in the screen so that when she comes he will know who she is. Mr. Villa- Vicencio uses this as an analogy for South Africa. He says, you must look into the womb or the history of what happened in order to understand the present and know where you are going in the future.

Peacemakers should try to keep this key point in mind; that we have to go back to the womb, back to the beginning, look into the history of the conflict before we can start looking at the present and future. We have to know the history before we can know what processes and mechanisms are needed to achieve truth and justice, leading to a peaceful society.