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ISSUES IN TRANSITIONAL JUSTICE: ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATIONS ARTICLES BY JOHN RYAN JOHN@LAWDRAGON.COM

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2 RWANDA’S LONG ROAD TO JUSTICE In the nearly 20 years since the Rwandan genocide, domestic and international justice efforts have struggled to balance the demands for remembrance, criminal accountability and

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moving on.

(Originally published October 2013)

18 LAST STOP BELGRADE With the International Criminal Tribunal for Yugoslavia winding down, it has fallen to the national courts to hold war criminals accountable for the atrocities of the 1990s. Serbia’s experience shows that prosecuting the crimes in resistant domestic settings takes both courage and patience.

(Originally published October 2012)

36 APARTHEID’S LEGAL LEGACY

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South Africa’s successful hosting of the World Cup seemed to render apartheid’s evils a distant memory. But for victims of the era’s human rights violations, the pain remains fresh – and they still want the government to prosecute the offenders.

(Originally published March 2011)

COVER PHOTO BY JOHN RYAN

INTRODUCTION

AWDRAGON LAUNCHED IN 2005 WITH THE GOAL OF COVERING THE MOST INTERESTING LEGAL MATTERS AND THE LAWYERS WORKING ON THEM. For the most part, this coverage has focused on U.S. lawyers handling high-dollar-value cases and deals for paying clients, but public interest and pro bono work has always been part of the mix. When thinking about access-to-justice issues globally, our interest carried us to post-conflict societies where a range of actors have attempted to hold perpetrators of massive human rights violations accountable.

The range of potential topics with the burgeoning field of transitional justice was of course vast. Our articles have focused on specific legal issues within some of the most highprofile post-conflict settings in recent decades: South Africa, the former Yugoslavia and Rwanda. These articles are based on original reporting from field research in each country and region along with in-depth reviews and analyses of the existing research found in academic literature, advocacy efforts and journalistic accounts.

One common thread here is that the articles address transitions from roughly the same period, the mid1990s. That new controversies and legal complexities continue to the present day undoubtedly carries lessons about the resilience of demands for justice as well as the challenges of implementing justice mechanisms that satisfy the different constituencies in any post-conflict setting.

Beyond that, we hope that these three articles also address some of the core issues of transitional and international justice that are grounds for additional coverage: The extent to which quasi-judicial efforts like truth commissions, as in South Africa, satisfy moral imperatives or a nation’s obligations under domestic or international legal standards; the difficulties faced in resistant settings, such as Serbia, when attempting war crimes prosecutions to complement the work of an international tribunal, and what insights this might contribute to notions of “complementarity” in the age of the International Criminal Court; and, in Rwanda, the tensions created between layers of accountability mechanisms when pursued aggressively and simultaneously by the state and the international community.

We hope you’ll join us in exploring these important chapters in international justice. They illustrate the importance of the role of law for us all.

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RWANDA’S LONG ROAD TO JUSTICE

BY JOHN RYAN

IN THE NEARLY 20 YEARS SINCE THE RWANDAN GENOCIDE, DOMESTIC AND INTERNATIONAL JUSTICE EFFORTS HAVE STRUGGLED TO BALANCE THE DEMANDS FOR REMEMBRANCE, CRIMINAL ACCOUNTABILITY AND MOVING ON.

LEFT: CONCRETE COVERS THE MASS GRAVES OF APPROXIMATELY 250,000 RWANDANS AT THE KIGALI GENOCIDE MEMORIAL CENTER. PHOTO BY: JOHN RYAN

I. REMEMBRANCE THE SKY IS OVERCAST, WITH A CHANCE OF RAIN, as the celebration begins on Easter Sunday outside the church located about a quarter mile off the main road in Nyamata, a small town due south of the capital of Rwanda, Kigali, by a 50-minute bus ride. Drummers bang relentlessly as churchgoers exit under the scaffolding attached to the building and mingle outside. A nun smiles when asked for the location of the genocide memorial, pointing down the dirt road to a red brick building behind white metal gates.

There, a slight woman waits at the entrance of the former Catholic Church to give a tour to the only two visitors. She speaks in Kinyarwanda, with a few English words thrown in. Thousands of Rwandans came here in April 1994 to seek refuge from the genocide, but they were all killed when government and militia forces broke in – one of many scenes of mass slaughter and rape over a 100-day period in which the Hutu-dominated government and its followers sought to stamp out the Tutsi population, as well as those perceived to be moderates or sympathizers among the Hutus. The goal was to bring a permanent conclusion to the civil war against the Rwandan Patriot Front, or RPF, the mostly-Tutsi rebel group led by Paul Kagame, Rwanda’s current president, whose forces ended the genocide by early July and assumed some control over what was left of the devastated country.

Clothes of the victims are stacked on the pews, and bullet and grenade holes mark the surrounding walls. The guide points to the altar, where the weapons of the genocide lay; she makes a gentle slashing movement with her arm as she points out the machete. Outside, behind the church, a path leads to a set of stairs that descend into a catacomb with a narrow passageway running between thousands of bones and skulls, as well as dozens of coffins, stacked on wooden shelves. Many of the coffins measure just a few feet or so long. The guide makes the slashing movement again, this time with the explanation: “Babies, babies.”

A 15-minute ride by a moped taxi leads to a more rural area, Ntarama, with another church memorial where about 5,000 Rwandans had also sought protection from the genocide. Here, clothing hangs from the walls and rafters, while bones and personal items from the victims can be found at the ends of the building. A short distance uphill is a smaller structure. Inside, the guide, a somber woman who speaks in English, points to dark blood stains on the wall. She says that the children were killed here by being thrown and smashed against the wall.

The slaughter of children illustrates the horrors of the genocide and its enduring effect on the nation. This idea receives special treatment at the nation’s largest genocide memorial, the Kigali Genocide Memorial Center, an impressive site with a museum and research center as well L AW D R A G O N

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as gardens and mass graves of more than 250,000 victims.

(The government estimates the ultimate death toll from the genocide at more than one million; academic works and advocacy reports more commonly estimate between 800,000 and 1 million.) The museum’s “Children’s Hall” presents pictures of murdered children with descriptions of their life goals and personality traits along with the manner of their death: “hacked by a machete,” “burnt alive,” “a grenade thrown in the shower,” “shot in the head,” “stabbed in eyes and head,” “tortured to death,” “smashed against a wall.”

Karengera Ildephonse, who works at Rwanda’s National Commission for the Fight Against Genocide, said the graphic nature of the memorials was important to refute those who deny or minimize the genocide.

“That is complete proof – the coffins of the children, the bones and clothes – of what happened,” Ildephonse, who is the commission’s Director of Memory and Prevention of Genocide, explained in an interview. “It’s not just talk, it is physical proof.”

He added that the process of memorializing is important for educational purposes, particularly for young Rwandans.

Ildephonse gave an interview at the commission’s offices in Kigali on April 8, 2013, the day after Rwanda commemorated the 19th anniversary of the genocide as part of its annual week of mourning, which includes commemoration events in Kigali and in villages around the country. April 7, 1994, is remembered as the first full day of the genocide.

On April 6 of that year, Rwanda’s longtime Hutu president, Juvénal Habyarimana, was killed when his plane was shot down over Kigali, ending a tenuous peace between his government and the RPF; government forces and the Hutu militia known as the interahamwe started implementing the genocide within hours.

In 2013, Jean de Dieu Mucyo, the commission’s executive secretary, had criticized young people for their lack of interest in genocide memorial activities. In his televised speech to the nation on April 7, Kagame called for schools to teach the nation’s difficult history so that the youngest survivors and those born after the events better understood the genocide’s causes. That day, Kagame attended a memorial service at the Kigali Genocide Memorial and later participated in the “Walk to Remember,” an event organized by the commission and youth groups. The walk began at Rwanda’s National Parliament after all attendees had passed through an airport-like security screening and ended at Amahoro Stadium, the site of the nighttime memorial service. Most of the participants in the walk were Rwandans who appeared to be under the age of 30, with a scattering of Westerners who stood out by wearing sandals and shorts.

“This country belongs to them,” Ildephonse said of the Rwandan youth. “The country’s unity has to come from them. We encourage them to learn, to know why genocide SPECIAL ISSUE

happened, to prevent it from happening again, to fight the ideology of genocide.”

Memorials may seem a relatively uncontroversial way to acknowledge and redress past human rights abuses compared to judicial or quasi-judicial means such as prosecutions, truth commissions, reparation programs or reforms of public institutions – all of which have come to be grouped together as the common set of “transitional justice” mechanisms that post-conflict societies consider adopting.

But they can be fraught with their own sets of complexities.

Both Rwandans and foreign workers in the country say that the memorial week brings an added weight and tension to the country, and it is not uncommon to hear people say that they prefer to travel during this time. Regardless of the time of year, outsiders are advised not to bring up the genocide or to ask about ethnic affiliations in conversations with Rwandans, which can sometimes complicate what would otherwise be normal questions about a person’s family life and history. (The U.S. government lists the present ethnic breakdown as 84 percent Hutu, 15 percent Tutsi and 1 percent Twa in a densely packed population of about 12 million.)

The goal of Kagame’s Rwanda is to leave ethnic divisions in the past and embrace the concept that “We are all Rwandans,” but ethnicity is wrapped up in the memorializing. The genocide memorial campaign is officially referred to as “The Genocide Against the Tutsi,” which to some observers contributes to an environment that does not fairly account for Hutu suffering.

Ildephonse said, however, that the commemoration’s title is merely meant to be factual.

“Some Hutus did not kill and helped and protected Tutsis, and in fact some Tutsi assisted in the genocide, but the Hutus were not targeted as Hutus, but as sympathizers of the Tutsi,” he said.

The government has acknowledged that innocent Hutus were killed during the civil war, which began in 1990 when RPF forces attacked Habyarimana’s regime, and in reprisal killings by RPF forces during and In 2000, Rwanda after the genocide. However, the govPresident Paul ernment is strongly opposed to any Kagame (left) language or description of events that and South Africa appears to equate Hutu and Tutsi President Thabo crimes within a civil war context, or Mbeki visited the that could be at all interpreted as genocide memosupporting the contention that “a rial in Murambi. double genocide” occurred — which PHOTO BY: MARCO LONGARI/AFP/GETTY IMAGES/NEWSCOM

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the government views as a dangerous component of the denialism within the broader threat of genocidal ideology.

Beginning with its new constitution in 2003 and in legislation since, Rwanda has outlawed ethnic “divisionism,” minimizing or negating the genocide and, in a 2008 law, the propounding of a broadly defined “genocidal ideology.”

The focus on genocidal ideology is not surprising, nor are attempts to regulate hate speech. In the years leading up to the genocide, newspapers and radio stations successfully distributed “Hutu Power” propaganda – such as the Hutu Ten Commandments, which dictated that Hutu associa-

tions with Tutsis were traitorous – that helped convince Rwandans to kill their neighbors and made the extent of the 1994 genocide possible.

But critics contend that the Kagame regime has used provisions against genocidal ideology to quell legitimate free speech and political opposition in ways that violate international rights standards. Hundreds have been prosecuted under the laws, creating an environment not conducive to discussing RPF crimes or in general criticizing the Kagame government, including any perceived favoritism of Tutsis in Rwanda’s post-genocide rebuilding. The Parliament has reportedly passed a revised version of the 2008 genocide ideology law to clarify the elements of the crime and the requirement of intent; it also reduces prison sentences. As of this writing, the law was awaiting Kagame’s signature.

Among the best-known genocide ideology cases involved Victoire Ingabire, an opposition leader who attempted to oppose Kagame in the 2010 presidential election. She was arrested after a speech at the Kigali Genocide Memorial in

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which she called for official remembrances of Hutu victims and punishments for their killers; she was also charged with providing support to a Hutu militia group operating in the region. Rwanda’s High Court found her guilty of genocide denial and conspiracy charges, and it handed her an eight-year prison sentence that she is now appealing

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cited a culture of blind allegiance to leadership as a cause of widespread Hutu participation in the genocide, it is unfairly resistant to criticism of its own policies.

Kagame nevertheless continues to receive praise around the world for his stewardship of Rwanda’s rebuilding and economic growth, even if relationships with allies like the

THAT IS COMPLETE PROOF — THE COFFINS OF THE CHILDREN, THE BONES AND CLOTHES – OF WHAT HAPPENED. IT’S NOT JUST TALK, IT IS PHYSICAL PROOF.” —KARENGERA ILDEPHONSE, NATIONAL COMMISSION FOR THE FIGHT AGAINST GENOCIDE.

before the Supreme Court. (Rather famously, authorities also arrested Ingabire’s controversial American attorney, Peter Erlinder, though Rwanda freed him for medical reasons and he is now at the William Mitchell College of Law in St. Paul, Minn.) Kagame ended up winning that election with 93 percent of the vote; his second and last term under the constitution ends in 2017.

The opposing sides of the Kagame debate have been well established for some time: He is described favorably as a strong leader presiding over an unlikely success story, and unfavorably as an authoritarian leader of a repressive surveillance state. The U.S. State Department’s Human Rights Report for Rwanda is replete with reports of arrests or harassment of political figures, journalists and human rights activists who have been critical of the regime, and murders and attempted murders of political opponents have gone unsolved. Kagame’s government has long had a contentious relationship with major international human rights groups, which have authored a range of critical reports and contended that would-be domestic activists have been scared into silence or into moving abroad.

Human Rights Watch, a regular critic of the Kagame regime, claimed in a 2013 report that the Rwandan League for the Promotion and Defense of Human Rights – referred to in the report as the last independent human rights group in the country – had been taken over by government supporters through a questionable board election. The report said the event was part of a larger pattern of efforts to silence civil society organizations through intimidation and infiltration.

Critics like to point out that, while the government has

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United States have soured somewhat over the conflict in the Democratic Republic of the Congo, or DRC. In addition to its concern over genocidal ideology at home, Rwanda has long pursued Hutu extremists who fled the country during the RPF’s victorious campaign in 1994 and continued to wage attacks from the outside. In 2012, the U.S. cut military aid on the belief that the Rwandan military was violating an arms embargo by providing direct support to the M23 rebel group, a mostly-Tutsi army in the eastern part of the country that opposes the DRC government and the Democratic Forces for the Liberation of Rwanda, or FDLR, the Hutu militia in the area that has many former Rwandan genocidaires.

Sanctions will also apply for the coming year now that the U.S. State Department has put Rwanda on the list of nations that recruit or support the recruitment of child soldiers, a tactic employed by the M23. Rwandan officials have repeatedly denied providing support to the rebels.

In 2013, the theme of genocide memorial activities – seen on signs hanging throughout Kigali’s remarkably clean and orderly streets – was “Striving for Self-Reliance.” Ildephonse said the idea was to encourage survivors to remember the past but also to “live positively,” to have a goal in life and not always wait for help “that might not be there.” He added with a smile that it was an apt theme for the nation as a whole, as current events had suggested that Rwanda will not always be able to “rely on outside aid.” Even as Rwanda remains dependent on this aid, the government often takes a defiant tone towards critics from nations that failed to live up to their obligations under the Genocide Convention to intervene in the bloodshed of

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1994. The cowardice and inaction that left Rwandans to die and the RPF to deal with the consequences is a fixture of the memorializing.

While the memorial events occupy a dominant space each April, they are not the primary means by which Rwanda and the international community have attempted to account for and document the genocide; that instead has belonged to a set of prosecutorial processes. In 1994, with Rwanda in ruins, the United Nations Security Council established the International Criminal Tribunal for Rwanda, or ICTR, based in Arusha, Tanzania, to prosecute the most senior leaders responsible for the genocide. As Rwanda rebuilt its legal system, the domestic courts also began prosecuting genocide suspects – eventually thousands of them – who did not rise to the leadership level of those pursued by the ICTR. Facing an immense backlog of genocide cases, Rwanda then established a third system based loosely on the traditional dispute resolution process known as gacaca, which involves village-based trials conducted without the participation of lawyers or formally trained judges.

Ingabire’s comments highlight one of the controversies associated with all three tiers of genocide justice: None of them have prosecuted RPF crimes against Hutus. The Rwandan government has preferred to prosecute these crimes in the military courts, a process that critics contend has failed to account for the full extent of the army’s crimes.

Though it was the last system launched, with pilot phases beginning in 2002, the gacaca system became the dominant player in the post-genocide justice scheme, particularly as it relates to the lives of everyday Rwandans.

These local trials discussing the crimes of the genocide became a part of the weekly life of virtually all Rwandans as survivors and perpetrators sought to rebuild their lives, often side by side. Regardless of the many criticisms levied at it, the gacaca system – which concluded in 2012 with an astounding two million genocide-related cases processed, according to the government’s numbers – has earned its place as the most far-reaching accountability effort ever implemented for mass atrocities.

terahamwe militia. Most villages would have survivors (in some places, very few) and perpetrators who had not yet been arrested. Many of those imprisoned were never prosecuted, as brutal prison conditions led to about 11,000 detainees dying while awaiting trial, according to a 2002 Amnesty International report.

Rwanda received international assistance to begin rebuilding its court system and adding to its depleted roster of legal professionals. The national courts began hearing genocide cases in specialized chambers in 1996, often grouping together many defendants into a single case. According to the government’s numbers, the courts had prosecuted more than 8,300 suspects by the end of 2002 for genocide and other crimes against humanity – a significant number given the limitations of the justice system but not one that made a serious dent in the pending caseload. (International observers praised efforts to process the cases of detainees but also expressed concern about the fairness and overall quality of the trials.) The ICTR, with a focus on senior-level suspects, has completed cases against 75 individuals as of October 2013; it had only issued judgments against a halfdozen or so suspects in its first four years.

As has been recounted in many works, Pasteur Bizimungu, a Hutu member of the RPF who became president after the genocide, held weekly meetings between May 1998 and April 1999 to discuss issues related to Rwanda’s rebuilding efforts, including what to do with alleged genocidaires and the possibility of appropriating gacaca to process their cases. (Kagame was vice president at the time.) Though it varied in form in different periods and regions throughout Rwanda’s long history, traditional gacaca is most commonly described as community meetings or informal trials presided over by village elders who resolved simple matters like property, family and inter-family disputes with an eye towards maintaining harmony. Gacaca, which in Kinyarwanda makes reference to the word grass, was not used for complex criminal cases.

One of the attendees of the 1998-1999 meetings was Augustin Nkusi, a judge who would go on to serve as the Director of the Legal Unit of the National Service of Gacaca Courts, a position he held until 2006. He is now a prosecutor with Rwanda’s National Public Prosecuting Authority, or NPPA, and he gave interviews at his Kigali office over a few evenings in early April 2013.

By the late 1990s, much positive coverage had accompanied South Africa’s decision to document apartheid-era crimes through a Truth and Reconciliation Commission, which gave amnesty to participants who provided a full accounting of their crimes. However, Nkusi said that Rwandan authorities did not seriously consider a truth commission or other qualified-amnesty approach out of a belief that punitive measures were needed to eradicate “the culture of impunity” that had contributed to the events of 1994. No

II. LOCAL JUSTICE RWANDA FACED TOUGH CHOICES WHEN IT CAME to dealing with crimes related to the genocide. The justice system was essentially nonexistent given the destruction of the public infrastructure and the number of legal professionals who fled the country or were killed. In taking control of the country, the RPF imprisoned more than 120,000 suspects in a prison system designed for about a quarter of that. That number was expected to rise given that the genocide was carried out by masses of ordinary citizens who supplemented the work of government forces and the in-

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punishment had met prior massacres of Tutsi, beginning in 1959, in the first wave of Hutu-Tutsi violence that preceded Rwanda’s 1962 independence and occurred intermittently after. (Belgium, which had controlled Rwanda since the end of World War I, exacerbated tensions between the groups by issuing ethnic identity cards and implementing policies favoring Tutsi, before shifting gears towards the end of its reign and supporting a Hutu-dominated government and society.) In fact, Nkusi said the concern was that traditional gacaca would be offensive to survivors as too lenient.

Phil Clark, a political scientist at the School of Oriental and African Studies, University of London, describes in his book on gacaca – subtitled “Justice Without Lawyers” – the serious divisions between policymakers in the late 1990s over how to best process the cases. Tharcisse Karugarama, who until recently served as Rwanda’s Justice Minister, told Clark that his early proposal for a gacaca-like system resulted in “so much condemnation” that he “nearly went into exile.”

Over the next few years, however, authorities settled on a modified gacaca system – one that was more punitive than the traditional model – as an acceptable solution that could work through the backlog of cases, mete out punishment to combat impunity and establish the truth about the crimes in a way that might promote reconciliation. Nkusi said it made sense for community members to play a key role in sorting through the crimes of the genocide. Given the intimacy of the violence on a village-by-village basis, local residents L AW D R A G O N

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would be in the best position to give damning or exculpatory evidence about their neighbors. It would also prove that Rwandans could handle their own problems, even in remarkably difficult circumstances.

These sentiments are expressed in the preamble of the first Gacaca Law of 2001, which Parliament amended several times after initial pilot phases. Initially, each “cell,” the lowest administrative level in Rwanda, elected 19 judges for a total of about 250,000 gacaca judges nationwide. (The judges were called “inyangamugayo,” the Kinyarwanda word for respected elder, though they could be men and women as young as 21 if held in high esteem in their communities.) That number shrank to nine judges per bench by 2005 as gacaca began its national implementation across approximately 12,000 cells and “sectors” – higher administrative levels that processed the more serious cases – and courts of appeal. The required number of judges-per-bench was reduced again to seven as officials sought to process cases more quickly.

The pre-trial phase of information gathering and suspect identification took place in each cell, a process that dramatically increased the total number of suspects.

Rwandan law has three categories of genocide suspects according to the severity of their alleged offenses. Category one includes planners and inciters of the genocide, civic leaders who encouraged the genocide and perpetrators of sexual violence; category two includes murderers and those who committed serious assaults; and category three covers property offenses. Officials initially intended gacaca courts to process only cases from categories two and three, leaving the more serious category-one crimes with the regular domestic courts and the ICTR. However, the backlog of cases remained so severe that an amendment to the gacaca law in 2008 transferred many category-one cases to the gacaca courts, except for those of the highest-level accused planners.

By then, Rwanda had also undergone a series of judicial reforms and restructurings designed to modernize the justice system, but gacaca remained a separate system that handled its own appeals.

Gacaca judges did not have formal legal backgrounds but received a lim- Villagers listen to ited amount of training after election judges at gacaca by their communities. The role of proceedings phothe president of each court was to tographed in Zivu.

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PHOTO BY: RICCARDO GANGALE/AFRICA 24 MEDIA/NEWSCOM

guide the discussion among community members, officially demic works, advocacy reports and journalistic accounts that referred to as the “general assembly,” which consisted of all have examined gacaca, many of which draw on interviews residents over the age of 18. At trial, defendants could call with participants. witnesses on their behalf but did not have the assistance An obvious concern from a human rights perspective was of defense attorneys. All assembly members were encour- the lack of traditional due process rights for suspects, who aged to give testimony about the crimes in question; in had limited time to prepare their cases and did not have fact, gacaca law provided for the punishment of individuals the benefit of a lawyer. (In its final report on gacaca, the who withheld information. Trials could proceed quickly or government said that defendants were not technically barred unfold over multiple weekly hearings; the panel of judges from hiring lawyers and listed some of the rare cases in then discussed the evidence and gave their judgments. (Ga- which suspects had counsel.) Critics contend that potential caca proceedings can be seen in filmmaker Anne Aghion’s defense witnesses remained silent out of a concern their acclaimed documentary film “My Neighbor My Killer.”) statements would be interpreted as denying or minimizThe gacaca system’s sentencing structure allowed judges ing the genocide, or would subject them to condemnation to impose life sentences for the most serious offenses. By within the community and even false reprisal accusations. pleading guilty, however, defendants could receive signifi- The use of lay judges could also be problematic, given their cantly shorter sentences, half of which could be spent do- lack of experience in sorting through competing evidence in ing community service. Nkusi said that the more lenient cases, and reports emerged of survivors making false claims sentencing scheme, which led to a vast number of guilty either to settle personal scores or gain property. pleas, facilitated the revelation of truth about the crimes A number of academics see an even more sinister element and reduced the burden on the prison system. in gacaca that is inseparable from the system’s exclusion of A few years ago, Nkusi took a leave of absence from the crimes committed by RPF forces – a type of one-sided or NPPA to pursue a master’s of laws in criminal justice at the “victor’s” justice that prevents reconciliation and undermines University of Cape Town, in South Africa. He is now hoping the government’s stated commitment to accountability. These to publish a book based on his 2011 thesis, which sought critics see a significant degree of coercion and intimidation to determine whether gacaca constituted “retributive” or by the government during gacaca, undermining a truly open “restorative” justice. In the field of transitional justice, retribu- and free exchange of testimony. One such critic, Timothy tive justice generally refers to mechanisms that prioritize Longman, a professor of political science at Boston Unipunishment and deterrence while restorative approaches versity, views gacaca not as a system of grass-roots popular focus more on victim healing and reconciliation. By mea- justice but as a top-down, heavy-handed means by which suring gacaca’s characteristics against these contemporary the government implies “collective guilt on all Hutu.” The justice concepts, Nkusi concluded that the system was more government’s calculation of nearly 2 million cases processed retributive than restorative, by a 57 to 43 percent margin. – even if the majority of the cases involved the less-serious Nkusi said that the restorative elements were largely suc- property crimes in category three – might contribute to an cessful. Testimony by confessors allowed survivors to learn impression of collective guilt, though by sheer volume the how their family members were killed, to locate the remains system also had hundreds of thousands of acquittals and for proper burials and develop a sense of closure. As for successful appeals. (Some outside researchers doubt that reconciliation, he rejected the notion that weekly meetings the total number of cases was quite as high as the governto discuss genocide crimes would increase tensions in com- ment’s final tabulation of 1,958,634.) munities where survivors and perpetrators lived together.

Survivors had their own concerns, perhaps chief among He said that the genocide was already followed by years them the retraumatization associated with public discussions of suspicion in which survivors assumed that all Hutus in of horrific crimes (though judges could hear some evidence in their neighborhood were killers. private, such as for rape cases). There were also complaints “Gacaca courts were able to distinguish between who is that testimony provided by defendants was often incomplete, guilty and who is not,” he said. “You could not reconcile even by those who claimed to fully confess, and that apolowith this type of suspicion.” gies were not sincere. Survivor witnesses, often Tutsis in the The government considers the gacaca system, which for- minority living near those who killed their family members, mally closed in the summer of 2012, a major success. And also faced intimidation, harassment and even death. The initially, outside of Rwanda, much excitement accompanied Rwandan government reported an increase in murders of the idea of local populations and survivors taking control genocide survivors and witnesses in the first few years after over justice processes in a way that was culturally relevant; the national implementation of gacaca; the establishment of transitional justice advocates are often weary of one-size- a victim and witness support unit in 2006, and new security fits-all approaches to accountability that can interpreted as measures, seemed to help. However, observers continued overly formal or “Western” in nature. Over time, however, to note instances of intimidation by powerful Hutus, with a number of competing viewpoints have emerged in aca- reports that some wealthier suspects were able to bribe SPECIAL ISSUE

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GACACA COURTS WERE ABLE TO DISTINGUISH BETWEEN WHO IS GUILTY AND WHO IS NOT. YOU COULD NOT RECONCILE WITH THIS TYPE OF SUSPICION.” —AUGUSTIN NKUSI, FORMER DIRECTOR OF THE LEGAL UNIT OF THE NATIONAL SERVICE OF GACACA COURTS.

either judges or potential witnesses into silence.

Survivors and some human rights advocates also saw problems with the perceived leniency of the system, which became more so over time to keep gacaca from adding to prison overcrowding. From gacaca’s earliest days, it often made sense for detainees to confess to certain crimes – whether or not they committed them – to gain freedom from horrible prison conditions, which led to false confessions. As documented in Clark’s “Justice Without Lawyers” book, tens of thousands of the earliest detainees were freed and sent to civic reeducation camps known as ingando before being sent back to their communities for gacaca to weigh their confessions. Most suspects who had been incarcerated were not sent back to prison if found guilty by a gacaca court. After amendments to the system in 2007, even convicts who had not previously served time would be given community service combined with a suspended sentence; the community service was done first and, if performed satisfactorily, the prison portion would be commuted.

These critical viewpoints, when viewed collectively, cast doubt on gacaca’s contribution to the goals of truth, justice and reconciliation. The Rwandan government was quick to perceive bias in some of the research, particularly the 2011 Human Rights Watch report, “Justice Compromised,” claiming that it focused on cases and problems that were not representative of the system as a whole. As a practical matter, of course, Rwanda had few good options once the government decided on a course of criminal accountability for all crimes committed as part of the genocide. The country would never have enough qualified judges, prosecutors and defense lawyers to process the cases, a fact that critics also acknowledged. In discussing gacaca research, government employees tend to refer to Clark’s work, which has taken a more favorable, if still mixed, view of gacaca.

Clark traveled to many villages throughout Rwanda from 2003 to 2012, often sleeping in the homes of gacaca participants or in a tent nearby. In an interview, he said that the most severe criticisms of gacaca tend to be rooted in the human-rights, legalistic perspective that emphasizes L AW D R A G O N

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formal judicial procedures, including an adherence to international due process standards. He does not believe this is the best approach to assessing a “hybrid” system like gacaca, which blends modern and traditional elements and has a range of “pragmatic” and “profound” objectives for society. He is far from alone in saying that gacaca generally succeeded in the pragmatic goal of processing genocide cases and decreasing the prison population.

He also believes that gacaca trials did a “pretty good job” of establishing the truth of genocide crimes. Clark, too, saw some coercion in the government’s efforts to ensure widespread participation, but in his observations the general assemblies often operated as an effective “check and balance” during the hearings.

“Many of the actors doing the speaking as well as those listening observed the crimes first hand,” Clark explained. “If someone stood up and said something that was categorically untrue, more often than not the general assembly would pounce on that.”

On the whole, Clark felt that communities were successful at locating bodies and uncovering other details about the crimes in a manner that likely would not have happened in formal justice systems. To him this reveals the “revolutionary” potential of a system like gacaca for documenting mass crimes when compared to more adversarial legal proceedings, where a defendant and his lawyer will attempt to narrow liability.

However, another longtime and prominent gacaca researcher, Bert Ingelaere, places a greater emphasis on gacaca’s own adversarial characteristics as it processed the more serious, non-property-related offenses.

“Most of the people on trial denied the allegations, and then it became a more typical prosecution, where it was ‘me against you,’ and ‘my word against your word,’” Ingelaere, an anthropologist at the University of Antwerp, in Belgium, said in an interview.

He believes these confrontational dynamics limited gacaca’s success in the production of truth and the promotion of reconciliation. The system operated more like traditional gacaca in the property cases, where the perpetrator and SPECIAL ISSUE

victim could agree on a form of restitution. This was a more prosecuting RPF soldiers well before the gacaca even began. natural fit for gacaca, and Ingelaere said that it might have This is not disputed by critics, who instead contend that the been better to leave the more serious cases outside of the dozens of arrests and prosecutions of RPF soldiers have system. He added that one potential lesson for the field not sufficiently accounted for the number of Hutu civilians of transitional justice is to be cautious of hybrid systems killed during and after the genocide, estimated by human burdened with multiple and at times contradictory goals; a rights workers to be in the tens of thousands. set of complementary institutions might work better.

After a second interview at Nkusi’s NPPA offices, he proBoth Ingelaere and Clark observed variability in how the vided me with a copy of his thesis. We then went to his home, gacaca system operated over the years across Rwanda’s where Nkusi introduced his wife and children over juice many villages, though Clark sees this as a more defining and television, and he talked fondly about his past trips characteristic. In his view, even a centralized regime could to the U.S. to give presentations on Rwanda’s transitional not fully monitor, much less control, the vast number of justice efforts. hearings taking place each week, particularly in areas far On our way, Nkusi had the driver stop at a nearby field from Kigali. In the later stages of gacaca, Clark observed that is the former site of the presidential palace of Juvénal hearings in which RPF crimes were discussed. Though the Habyarimana, where his plane crashed on April 6, 1994, judges did not record what was said or launch investiga- killing him along with the president of Burundi, an ally, tions into the crimes, Clark found it remarkable that certain and several others. Wreckage from the plane remains in insulated communities had “carved out the space” to at least the field and was somewhat visible from our car; Nkusi talk about these issues. suggested coming back during the day to get a better look.

This variability, however, also applies to the system’s Controversy has lingered over whether the assassinacontribution to peace and reconciliation. Clark said that tion was orchestrated by the RPF or by Hutu extremists the success of gacaca proceedings often depended on the who feared Habyarimana would adhere to the 1993 Arujudges’ ability to manage the challenging discussions, as well sha Accords, which had established a peace between the as the amount of divisiveness and tension that existed in Habyarimana regime and Kagame’s forces. The assassinathe community before gacaca arrived. Clark observed com- tion is commonly viewed as a catalyst for the main genomunities where gacaca seemed to offer a possible “avenue cidal campaign of killing and raping, but not its cause, as for reconciliation” and others where it “magnified tensions” the genocide was well-planned in advance; its execution and “made things worse,” undermining reconciliation in began with alarming efficiency by government and militia often traumatic and sometimes even violent hearings. leaders, and then regular citizens, soon after the plane crash.

Among all the competing viewpoints, Clark said that sur- In the aftermath of the genocide, the U.N. Security Counvivors and perpetrators tend to share one sentiment about cil decided that a specialized international tribunal would gacaca – relief that it’s finally over. provide the best venue to prosecute the masterminds of Recent transitional justice scholarship has tended to em- the campaign. phasize the limitations of justice mechanisms when it comes to reconciliation, a process that is dependent on so many factors and can often take a generation or two. Interestingly, Kagame himself has acknowledged the population’s widespread dislike of gacaca as well as the likelihood that any contribution to reconciliation will be seen more in the long term. In a 2009 New Yorker article that served as ON FEB. 11, 2013, HUNDREDS OF RWANDANS a follow-up of sorts to his book about the genocide, “We protested outside the building of the International Criminal Wish to Inform You That Tomorrow We Will be Killed with Tribunal for Rwanda, the ICTR, in Kigali. Though it has Our Families,” Philip Gourevitch reported that survivors he operated in Arusha, Tanzania, since 1995, the tribunal also spoke with did not have favorable views of participating in has an office in the Remera section of the capital, gacaca. Kagame responded that that was how it should be, not far from Amahoro National Stadium, where the city that both victims and perpetrators should not be happy with would hold its 19th annual genocide memorial in a few gacaca – an admittedly painful process that is “something months’ time. to build on.”

The protest, organized by Ibuka, an umbrella organization The leadership of Rwanda is inflexible on the matter of for genocide survivor groups, came in response to the Feb. RPF crimes, however, insisting they should not be grouped 4 acquittals of two cabinet members of the interim governwith genocide cases but instead handled by military courts ment, formed after the Habyarimana assassination, which responsible for prosecuting soldier misconduct and war carried out the genocide and ruled Rwanda until RPF forces crimes. In his thesis, Nkusi dismissed the criticism of ga- took control of the country in July 1994. One defendant, caca as one-sided, noting that military courts had started Justin Mugenzi, was the trade minister for the government,

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and the other, Prosper Mugiraneza, was the minister for civil service. In 2011, a three-judge ICTR trial chamber had convicted Mugenzi and Mugiraneza of conspiracy to commit genocide and public incitement of genocide, and sentenced each to 30 years in prison.

Ibuka’s president, Jean Pierre Dusingizemungu, reportedly called the decision by the five-judge appeals chamber to reverse the lower court and acquit Mugenzi and Mugiraneza “a nail in the coffin of the victims of the genocide.”

The head of the NPPA, prosecutor general Martin Ngoga, who oversees genocide cases in Rwanda’s High Court, also publicly questioned the ruling, which he said would call into question the legacy of the ICTR by exonerating leaders of the genocidal regime.

Debates over the ICTR’s achievements and shortcomings have never been in short supply, and they are sure to continue now that the tribunal’s case work is mostly done.

As a structural matter, the U.N. Security Council created the Mechanism for International Criminal Tribunals, or MICT, with a more streamlined staff that has started carrying out the remaining functions of both the ICTR and the International Criminal Tribunal for the Former Yugoslavia, the ICTY, at The Hague. (The Security Council established the ICTY in 1993 to prosecute crimes from the wars that followed the dissolution of Yugoslavia.) The ICTY and the ICTR have always shared the same appeals chamber, which is based in The Hague, and they shared the same chief prosecutor until 2003. That position was also based in The Hague, leading some Rwandans to feel that the ICTR received short shrift.

The MICT is part of the tribunals’ “completion strategy,” and its work will overlap with the two tribunals as they wind down their operations. At the urging of the Security Council, both the ICTY and the ICTR have set timetables for finishing their work and taken steps to refer more cases to the domestic justice systems. Even high-level suspects already indicted by the tribunals can be passed on to national courts, though tribunal judges have to sign off on transfers. The ICTR did not begin transferring indicted cases to Rwanda until 2012, when prosecutors finally convinced the judges – who had rejected earlier transfer attempts – that defendants could receive a fair trial in the domestic system.

The ICTR has referred the cases of eight defendants to Rwanda; two of them are in custody in Kigali, while six remain fugitives. The ICTR branch of MICT will retain jurisdiction over three additional “top-priority” fugitives alleged to have played high leadership roles in the genocide; they will stand trial in Arusha if caught. Earlier, in 2007, the ICTR referred two cases to France involving indictees who had found their way there. Several jurisdictions around the world, most in Europe, have prosecuted transplanted Rwandan genocide suspects not indicted by the ICTR. L AW D R A G O N

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Of the 75 individuals prosecuted by the ICTR, 47 have been convicted, 12 acquitted and 16 have appeals pending. Six of the 12 acquitted were cabinet members of the former government, a source of great frustration in Rwanda.

Still, ICTR spokesperson Roland Amoussouga, who also holds the title of senior legal advisor and the chief of the tribunal’s external relations and strategic planning, defended the outcome of the Mugenzi and Mugiraneza case.

“Acquittal is a normal part of the process, part of the due process a defendant receives,” Amoussouga said in an interview. “This is not a kangaroo court that can just rely on the court of public opinion to convict people.”

He said he understood “the feelings and emotions of the laymen and the victims” but not the comments of Rwandan officials, whom he suggested may not have read the decision before speaking out.

“They should not be engaged in public shouting matches against the credibility of our judges,” he said.

In this case, the appeals chamber found that the trial court erred in using the available circumstantial evidence to conclude that Mugenzi and Mugiraneza had the required mens rea, or mental state, to support a conviction for conspiracy to commit genocide. The incitement allegations against the defendants stemmed from their presence at an April 19, 1994, speech by Théodore Sindikubwabo, the interim president, at a ceremony in Butare, intended to promote the killing of Tutsis. The appeals chamber found that the evidence did not prove that Mugenzi and Mugiraneza knew of the content of the speech before attending, which for the judges created doubt about the defendants’ own genocidal intent. (Like many suspects, Sindikubwabo fled to Zaire, now DRC, during the RPF advance; he died there without being charged by the ICTR.) Amoussouga said that the same appeals system has confirmed 95 percent of trial chamber decisions with guilty verdicts. Indeed, among the achievements most commonly ascribed to the ICTR is the establishment of an impressive, if incomplete, legal and historical record of the genocide, often through groundbreaking cases. The head of the interim government, Jean Kambanda, received a life sentence – the maximum under the ICTR statute – in 1998 after pleading guilty to genocide charges, the first-ever genocide conviction of a head of state. Also in 1998, the ICTR handed down the first-ever genocide judgment by an international court in the case against Jean-Paul Akayesu, the “bourgmestre” or mayor of Taba, who also received a life sentence. In addition to being the first case to interpret the 1948 Genocide Convention, the Akayesu case defined the crime of rape in international law and held that it could be a crime of genocide.

Over the tribunal’s history, prosecutors have succeeded in targeting various levels of the genocidal campaign. Several cases have been thematically grouped by categories of defendants, with a focus either on the military, the civilian SPECIAL ISSUE

members of the former government or the media. In one 2003 case, the court convicted Jean-Bosco Barayagwiza and Ferdinand Nahimana for their role in the incitement broadcasts by the infamous Radio Télévision Libre des Mille Collines, or RTLM, and Hassan Ngeze for his publication of the anti-Tutsi Kangura newspaper. The tribunal has also convicted priests for their roles in massacres.

As the first courts of their kind since the post-World War II Nuremberg and Tokyo tribunals, the ICTR and ICTY are often credited with building on and refining their predecessors’ achievements in jurisprudence related to elements of the international crimes, individual criminal responsibility and command responsibility for offenses committed by subordinates. Supporters of the tribunals, and even critics, see them as pioneering institutions that contributed to the establishment of the International Criminal Court, located at The Hague. Unlike the tribunals, which are ad hoc institutions created by the Security Council, the ICC is a permanent court established by a treaty and run by its member states.

Though Rwandan officials have regularly called into question the quality of international justice, they have PHOTO BY: RICKY GARE/EPA/NEWSCOM

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also acknowledged its benefits. The convictions of dozens of genocide suspects by an international court outside of Rwanda’s borders, and outside the control of the government, is a powerful counter to denialism or any suggestions that the commonly accepted narrative of genocide is RPF propaganda.

Nevertheless, dissatisfaction with the Mugenzi and Mugiraneza acquittals have contributed to scrutiny within Rwanda of the appeals chamber’s presiding judge, Theodor Meron, an American who is the president of the ICTY and who was also appointed to head the MICT structure. Meron was ICTR chief prosecuthe presiding judge in a 2009 tor Hassan Jallow appellate decision that reversed (left) meets with the ICTR’s conviction of Protais President Paul Zigiranyirazo, a businessman Kagame in 2003. convicted of organizing a massaJallow has had a cre of Tutsis. He also was on the smoother relationappellate panel that, in 2011, reship with Rwandan duced the sentences of three conofficials than his victed genocidaires, including predecessor. former defense ministry chief of

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staff Théoneste Bagosora, who is considered a leading mastermind of the genocide.

The recent ICTR acquittals received little attention in the U.S., or much elsewhere outside of Rwanda, unlike the recent acquittals of high-level ICTY defendants from Serbia and Croatia – for which Meron has received intense criticism. Because the tribunals share the same appeals chamber, Rwandan officials have also watched these ICTY events with interest.

Critics contend that the Meron-led court has raised the bar on the standard needed to convict command-level defendants as part of a “joint criminal enterprise” and for the acts of their subordinates. In freeing a Serb general earlier in 2013, the appeals chamber found that he did not specifically direct the crimes of his subordinates; previously, less explicit aiding and abetting theories had sufficed for conviction. The lesser standard is important for prosecutors given that commanders are often unlikely to explicitly order criminal acts. The heightened standard contributed to an ICTY trial chamber decision in May 2013 that acquitted two senior Serb security officials.

On June 6, Frederik Harhoff, a Danish judge at the ICTY, wrote an angry letter to dozens of friends and associates that criticized Meron’s role in allegedly pressuring judges to

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acquit defendants, and he suggested that Meron was reacting to pressure from American and Israeli officials to protect military leaders from the reach of international justice. The controversy erupted publicly with the leak of the letter to the media.

The New York Times reported that a “mini-rebellion” was brewing within The Hague against Meron, a Polandborn Holocaust survivor who emigrated to the U.S. from Israel in 1978, though ICTY judges later reelected him to another two-year term as tribunal president.

In Kigali, the letter fueled resentment over the recent ICTR acquittals, and the National Commission for the Fight Against Genocide demanded that Meron step down. Amoussouga said he had no specific comment on the controversy. He said generally that tribunal judges “are fully independent, have the highest integrity and professionalism, and are not biased at all, guided only by the evidence before them.”

Tension has accompanied the ICTRRwanda relationship from the outset.

In the aftermath of the genocide, with its infrastructure destroyed, Rwanda asked the Security Council to establish an international tribunal as the council had the year before for the former Yugoslavia. Rwanda – at the time a temporary member of the Security Council – ended up being the only nation to vote against the November 1994 resolution establishing the ICTR. Rwandan officials were upset at the likelihood the tribunal would be established outside its borders (the decision to locate it in Arusha was made in 1995), as well as the fact that the tribunal would not impose the death penalty – a measure of justice Rwanda felt survivors deserved. Officials were also concerned about the court’s jurisdiction covering genocide and “other serious violations of international humanitarian law” for the entirety of 1994, which meant that non-genocidal reprisal crimes

by RPF forces were, at least legally, The second susfair game. (Rwanda also wanted the jurisdiction to extend back to the start pect transferred to Rwanda’s High of the civil war in 1990.)

The Security Council also en- Court by the dowed the ICTR, as it had the ICTY, ICTR, Bernard with “primacy,” meaning it could Munyagishari, take any case it wanted within its arrived in Kigali mandate, which became a problem on July 24, 2013.

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PHOTO BY: STEPHANIE AGLIETTI/AFP/GETTY IMAGES/NEWSCOM

almost immediately. In 1996, both the ICTR and Rwanda wanted control over Bagosora – the accused mastermind from the defense ministry – who had been arrested in Cameroon. South African jurist Richard Goldstone, the first chief prosecutor of both the ICTY and the ICTR, insisted on Bagosora’s transfer to Arusha. But he relented that same year after Rwanda threatened noncooperation with the tribunal in the case of a suspect arrested in India, Froduald Karamira, an ethnic Tutsi who became a leading Hutu extremist political figure.

The respective fates of Bagosora and Karamira highlight the differences between the two systems. The trial of Bagosora and his co-defendants at the ICTR did not start until 2002; it lasted until 2007 over hundreds of trial days. The trial chamber issued its guilty verdicts in December 2008, and the appeals process lasted another three years, with the chamber eventually reducing Bagosora’s sentence from life to 35 years at the end of 2011. In contrast, a Rwandan court convicted and sentenced Karamira after a three-day trial in 1997; he was executed as part of a larger public execution of convicted genocidaires the next year.

The length of ICTR proceedings (like the ICTY’s) is at least partially explained by the complexity and novelty of the cases, the need for translation in documents and court proceedings, witness travel and protection, and a commitment to the due-process rights of defendants. In addition, the tribunals do not have enforcement powers, such as a police force, and instead must rely on the Security Council mandate that all nations cooperate by arresting and transferring suspects and other evidence. This has been a challenge for both tribunals as they have sought help from often-reluctant nations.

However, even supporters have criticized the ICTR’s bureaucratic inefficiencies and expense (it has cost more than $1.5 billion) as well as its high-profile blunders. The tribunal discovered in 2001 that some of the defense investigators at the ICTR were actually Hutu genocide suspects; two of them ended up facing charges at the tribunal. Another embarrassment came in a 2001 case, when trial judges laughed during a difficult cross-examination of a Tutsi rape victim. Though the judges’ behavior was explained as an exasperated reaction to the defense attorney’s aggressiveness, survivor groups, including Ibuka, protested and announced they would suspend the cooperation of their members as witnesses.

With its distant location, the ICTR has also struggled to explain its relevance to Rwandans. In 2000, with funding from the European Commission, the tribunal started an outreach campaign. However laudable in their own right, these outreach efforts, like those of the ICTY in the nations of the former Yugoslavia, have never been funded sufficiently to make a dramatic domestic impact. The ICTR set up an information center in Kigali that has case data, a library of international law books and computer terminals SPECIAL ISSUE

for research; press conferences and other events also have been held there. (In my April 2013 visit, ten or so college students were using the center.) The tribunal later established smaller information centers near courthouses in other provinces. To the anger of Rwandan officials, however, the vast archives of the ICTR’s work will be kept at the Arusha branch of MICT, a decision made not by tribunal staff but by the Security Council.

As a general rule, of course, Rwanda wanted cases against high-level Hutus to succeed, and both the domestic and international systems have shared an interest in cooperation over the past two decades. But this cooperative relationship has been strained at times, a topic explored in many works, including Victor Peskin’s book, “International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation.” Rwanda had tremendous leverage with the evidence and survivor witnesses under its control at home; cases would stumble without domestic cooperation. In Peskin’s telling, Goldstone’s capitulation on Karamira’s transfer to Rwanda emboldened officials to use threats of noncooperation in the future. In 1999, Rwanda hampered investigations in the country after the appeals chamber decided to acquit Barayagwiza, the hate propagandist from the RTLM, in response to prosecutors missing the deadline for the first pretrial hearing. Carla Del Ponte, who became the chief prosecutor in 1999, succeeded in persuading the appeals chamber to reconsider its ruling, and Barayagwiza was eventually tried and convicted.

In June 2002, the government blocked Tutsi survivor witnesses from traveling to Arusha to testify in pending cases, ostensibly to implement new procedures related to the travel of witnesses. As explained in Peskin’s detailed account, however, the move was also widely seen as a reaction to Del Ponte’s ongoing investigations of RPF forces. In her own memoirs, titled “Madame Prosecutor,” Del Ponte contends that the Rwandan government was willing to compromise cases against high-level Hutus in order to thwart the RPF probe. (Witness travel resumed after Del Ponte took her complaint to the Security Council.)

In her account, Del Ponte says that Kagame was initially receptive to her plans to bring a limited number of cases for RPF crimes, including an initial focus on the massacre of Catholic clergy and other civilians in June 1994. Eventually, however, Kagame changed his tone and became firm in his position that military prosecutors would handle RPF crimes. In one heated meeting, Del Ponte writes, Kagame told her that she was “destroying Rwanda” and that cases against the RPF would lead people to “believe there were two genocides.” She also believed that the extent of RPF crimes might point to the culpability of senior officers, including Kagame.

The U.N. and Western powers that supported the court, perhaps most notably the U.S. and Great Britain, could have

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pressured Rwanda to cooperate with RPF investigations, trial was “properly conducted” and that he saw “no reason as it had with nations of the former Yugoslavia concerning to exercise the primacy of the ICTR.” He also denied that their own nationals. As many observers have pointed out, threats of noncooperation had blocked RPF investigations. however, guilt over the failure to stop the genocide and He noted that, in 2007, the government had given him the the disastrous handling of refugee camps in its aftermath details of 42 RPF soldiers prosecuted domestically.

– which allowed Hutu extremists to regroup and rearm in The main concern of critics is that the tribunal will be seen the camps and continue attacks – muted would-be critics as an instrument of “victor’s justice” and thus fail to build and gave the RPF something of a free pass when it came more convincingly on the achievements of the Nuremberg to international criminal accountability. Kagame and the and Tokyo tribunals, which were set up and run by Allied RPF had also earned many admirers for defeating the powers and only prosecuted Axis war crimes. Even those genocidal forces and taking steps to rebuild the nation, all who understand Rwanda’s refusal to vigorously prosecute against great odds.

RPF crimes domestically tend to struggle at finding an Del Ponte herself received pressure from Western officials, acceptable explanation for an international institution including from the U.S. State Department, who wanted her designed to be impartial. Del Ponte said that the failure to relinquish RPF cases to domestic prosecutors but with to live up to the tribunal’s mandate to prosecute all sides the right to resume her own if Rwanda’s efforts were “not of the conflict – as the ICTY was doing, and by now has genuine.” Del Ponte remained insistent on pursuing the done – would undermine reconciliation in Rwanda and cases, and it likely cost her her job – or at least half of it. the legitimacy of the court.

Rwanda and other governments lobbied for her removal, The position of Jallow, her successor, is that the ICTR’s with the ultimate result being the creation of separate chief cooperation with Rwanda on domestic RPF cases counters the prosecutors for the ICTY and the ICTR; Del Ponte was reap- “victor’s justice” argument, particularly since the genocide pointed to the ICTY, though she says she offered to move is “the main crime base” of the tribunal’s mandate. In his to Arusha for the ICTR. The 2003 Security Council resolu- letter to Human Rights Watch, Jallow said that domestic tion that formalized aspects of the tribunals’ completion prosecutions could “have a potentially greater impact on strategy also established the separate prosecutorial posts. national reconciliation.”

Del Ponte considered it a victory that the same resolution In some ways, his position is strengthened not only by called on all states, including Rwanda, to cooperate on the demands of the completion strategy but also by trends all ICTR matters, including investigations of RPF forces. in international criminal law that have placed a greater But cases against the RPF never materialized at the ICTR. emphasis on the role of domestic institutions. Instead of Hassan Jallow, a lawyer and judge from Gambia, took over having primacy, the ICC is a “court of last resort” intended as the ICTR’s chief prosecutor in 2003 and has enjoyed a to take cases only if nations that would otherwise have jusmoother relationship with his domestic counterparts. He risdiction are unwilling or unable to prosecute. The belief continued to investigate RPF crimes but chose instead to is that it is often better for victims and the promotion of refer the investigations to domestic prosecutors. Rwanda’s rule-of-law principles and other judicial capacity building if military court ended up prosecuting the case of the mur- nations handle their own cases in the aftermath of conflict. dered clergymen, which concluded with two convictions Amoussouga declined to weigh in substantively on and two acquittals in 2008. In a 2009 letter to Human whether the lack of RPF cases would weaken the legacy Rights Watch, which had criticized the case, Jallow said the of the tribunal, preferring to “leave that to the historians.”

"

ACQUITTAL IS A NORMAL PART OF THE PROCESS, PART OF THE DUE PROCESS A DEFENDANT RECEIVES. THIS IS NOT A KANGAROO COURT THAT CAN JUST RELY ON THE COURT OF PUBLIC OPINION TO CONVICT PEOPLE.” — ROLAND AMOUSSOUGA, ICTR SPOKESPERSON

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But he said that the tribunal has taken steps to ensure in Rwanda by keeping genocide suspects in its own courts, a positive legacy in Rwanda. Over the years, the ICTR and also for the slow movement of the two ICTR cases – has provided training and assistance to Rwandan judges, still pending – that the tribunal transferred there in 2007. prosecutors and other lawyers, as well as to lay people While many observers remain skeptical, ICTR prosecuinvolved in witness protection, all of which has increased tors can reassert control of transferred tribunal cases if the level of confidence the international community has in they are not satisfied with the performance of the domesthe domestic system’s ability to handle genocide cases. In tic system. Monitors from the tribunal have attended all addition to building the capacity of the legal system and its proceedings in Uwinkindi’s case. In early stages, proprofessionals, Rwanda’s desire for case transfers enticed it ceedings addressed defense requests for additional funds to implement judicial reforms, including the abolishment from the government – which is paying for the defense of the death penalty for genocide and all other cases.

– for preparatory investigative work. (Proceedings were Amoussouga considers these reforms among the ICTR’s set to resume in October 2013.) In July 2013, the ICTR most important achievements. And they now assume a transferred to Rwanda its last pretrial detainee, Bernard great importance. With the ICTR winding down and with Munyagishari, a political leader accused of training the gacaca over, Rwanda’s High Court has taken center stage interahamwe militia, among other criminal acts. The six in the prosecution of genocide suspects. remaining cases approved for transfer by the ICTR are In 2007, Rwanda passed a Transfer Law to meet the those involving fugitives, with cases of another three requirements of ICTR’s “Rule 11 bis,” which allows for the fugitives remaining under the jurisdiction of the ICTR transfer of cases if the trial chamber is satisfied that the branch of MICT. defendants will receive a fair trial in the new jurisdiction The hunt for fugitives is a joint effort by MICT, the Rwanand that the death penalty will not be applied. Though the dan prosecutor’s Genocide Fugitives Tracking Unit and Transfer Law spelled out new witness-protection measures INTERPOL. The War Crimes Rewards Program, under and fair-trial principles, ICTR trial and appeals chambers the U.S. State Department, provides awards of up to $5 rejected Jallow’s first five transfer requests out of a belief million for information leading to the capture of ICTR that suspects still could not get a fair trial in Rwanda. A fugitives and other war crimes suspects. (The last two key issue was the anticipated inability of defense teams to high-level ICTY indictees were captured in 2011.) An INsecure the participation of witnesses, who feared repri- TERPOL press release from April 2013 reported that 240 sal violence and also the possibility that they could face Rwandan genocide suspects are wanted for arrest or adcharges for genocide negation or ideology, or prosecu- ditional investigation. The NPPA has assisted with some tions in the gacaca courts. In response, Rwanda made ad- cases in foreign courts by holding proceedings in Kigali ditional reforms, including the creation of a new witness for Rwandan witnesses and relaying testimony through protection unit within the judiciary and expanded proce- videoconferencing. However, the agency has made clear dures for non-residents to testify from outside of Rwanda. its expectation that, post-Uwinkindi, future cases should Amendments also clarified the immunity granted to wit- be transferred to Rwanda. Uwinkindi's trial should shed nesses testifying at trial and guaranteed that detention con- light on how many genocide cases domestic prosecutors ditions would meet international standards – including a and the High Court can handle at one time. ban on solitary confinement.

By one analysis, a lack of enforcement powers and the In 2011, a trial chamber approved the transfer to Rwan- reliance on state cooperation have constituted the most obvida’s High Court of Jean-Bosco Uwinkindi, a Pentecostal ous hindrance to the functioning of international tribunals, pastor facing genocide charges for a number of atrocities and one that has also plagued the fledgling ICC. Rwanda’s committed around the area of his church in Kayenzi; the concern over the continuing threat of genocidal ideology appeals chamber upheld the decision in 2012. Uwinkindi’s is based in part on the vast number of genocide suspects team persisted that he would not get a fair trial in Rwanda, still free around the world. Yet the arrest and transfer of but judges were satisfied with the steps Rwanda has taken high-level genocidaires may also be one of the ICTR’s most to improve the environment for genocide defendants. So, clear-cut achievements. According to the ICTR, 27 different apparently, were other jurisdictions, such as Canada and national jurisdictions, with help from INTERPOL, have Norway, which extradited genocide suspects to Rwanda played a role in the apprehension of 83 tribunal fugitives. after the Uwinkindi appeals decision. (The U.S. already However haphazard and protracted the effort, it is one that had decided to deport genocide suspects after prosecut- would not have existed without the tribunal at its center, ing them for immigration violations and did so in 2011 particularly in the early years after the genocide. This is with a Rwandan native arrested in the Chicago area.) A one area upon which ICTR proponents and Rwandan ofLondon court is scheduled to hold a hearing in March 2014 ficials tend to agree. to determine if five detained genocide suspects will be “These people would have gotten away with murder, with extradited to Rwanda. France has provoked resentment genocide, if the ICTR did not exist,” Amoussouga said. ■ SPECIAL ISSUE

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`L Stop

ast

Belgrade B Y J O H N RYA N

Wit h t he International Criminal

Tribunal for Yugoslavia w i n d i n g d own, it ha s fa llen t o t he nat io nal co urt s t o ho ld w ar criminals acco unt ab le f o r t h e

atrocities of the 1990s . S erbia’s ex perience sho w s th at prosecuting these crimes in resistant domestic settings takes both courage and patience.

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Radovan Karadzic, one of the most notorious accused war criminals to stand trial since the Nuremberg and Tokyo tribunals, cross-examined prosecution witness Milorad Davidovic, a former chief inspector for the Yugoslav Federal Secretariat of Internal Affairs.

The spectators’ gallery in the trial chamber of the International Criminal Tribunal for the Former Yugoslavia, or ICTY, separated from the courtroom by a thick pane of glass, was mostly empty. A few handfuls of students and other onlookers were monitored by a pair of security guards, who

would occasionally peer over the shoulders of note-takers to make sure they were not drawing any pictures of the proceedings. (This is a matter of policy; Davidovic is not a protected witness and was testifying in open court.)

The setting was serene, even sleepy, compared to the International Criminal Court located across town in The Hague. The ICC’s main gallery and public spaces were so packed with groups of visitors during the last week of June 2011 that public affairs staffers had to carefully coordinate groups of tours to avoid traffic jams within the building.

To both its critics and supporters, the ICC is the culmination of an international justice movement that began with Nuremberg and continued with the ICTY, intended to provide a forum for credibly prosecuting the worst violations of international humanitarian law. The United Nations Security Council established the ICTY in 1993 as a L AW D R A G O N

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temporary or “ad hoc” tribunal limited to prosecuting crimes from the wars that followed the dissolution of the former Yugoslavia. The ICC has a broader mandate: It is an autonomous, permanent tribunal established by treaty and run by its member nations, with jurisdiction beginning in July 2002 – when the treaty entered into force. Since then, the ICC has initiated proceedings for crimes committed in several of the worst conflicts of the past decade, including those in Uganda, Darfur and Democratic Republic of Congo.

As Davidovic sat in the witness chair at the ICTY, judges at the ICC were preparing to issue arrest warrants for Muammar Gaddafi, his son and an intelligence official over the conflict then unfolding in Libya. The excitement was palpable over the court taking on another high-profile conflict; the ICC was the place to be, even if delays and other problems with cases continued to cast doubt on the court's effectiveness.

By contrast, the ICTY was – and remains – in the midst of its slow winddown, with most of the cases completed or on appeal. Davidovic was one of about 200 witnesses called by the prosecution in the nearly two-year-long presentation of its case against Karadzic, whose defense is ongoing. Still, for anyone who donned a headset and sat patiently through the simultaneous translations, the exchange between Karadzic and Davidovic had its share of drama. And the stakes remain high: The ICTY’s cases, together with domestic justice efforts in the former Yugoslavia, will either bolster or undermine claims over the value of criminal justice responses to gross human rights violations, and may signal whether the ICC has a realistic goal of meeting its goal to end impunity.

PARTNERS: Karadzic served as President of The offices of the Republika Srpska, the self-deVladimir Vukcevic clared Serb entity within Bosnia(right), Serbia's Herzegovina, in the early to midwar crimes pros1990s. He is accused of genocide, ecutor, and Serge war crimes and crimes against huBrammertz, the manity for his alleged role in the chief prosecutor removal of Muslims and Croats at the ICTY, have from areas in Bosnia claimed by cooperated on war the Serbs. Prosecutors contend that crimes investigahe played a leadership role in the tions since 2003. massacre in Srebrenica of 7,000 to SPECIAL ISSUE

PHOTO BY: ANDREJ ISAKOVIC/AFP/GETTY IMAGES/NEWSCOM

8,000 Muslim men and boys in July 1995 (determined by out the 1990s. In 1999, Slobodan Milosevic, the president the ICTY to be an act of genocide in an earlier case), as well of the Federal Republic of Yugoslavia and before that the as the siege of Sarajevo that lasted from 1992 to 1995 – con- president of Serbia, became the first sitting head of state to sidered two of Europe’s worst atrocities since World War II. be charged with war crimes. He eventually stood trial for Indicted in 1995, Karadzic was in hiding until his 2008 war crimes, crimes against humanity and genocide over his arrest. He initially boycotted his trial but later decided plans to establish Serb dominance in the region; he died in to represent himself. Trained as a psychiatrist, Karadzic 2006 during the course of the proceedings. Serbs have genquickly caught on to his role as defense lawyer. One of the erally detested the ICTY, which is viewed as biased against two professional lawyers helping him with the case, the their people, and the results of the cases are not trusted.

American Peter Robinson, has praised his performance.

Convicted Serb war criminals and the high-level remaining Davidovic came to testify about coordination between defendants, such as Karadzic, are still viewed as heroes by Serb civilians and military and paramilitary forces in much of the population. (In a 2012 opinion poll, only 23 forcibly removing Muslims from Republika Srpska. How- percent of Serb citizens believed that Karadzic was guilty.) ever confident about what he knew, Davidovic tapped The ICTY has had other limitations. The number of war his leg furiously as Karadzic repeatedly attempted to crimes suspects from the conflicts totals in the thousands, tear into his credibility by asking him about allega- with some estimates in excess of 10,000 individuals. The tions of fraud and other financial wrongdoing. Davi- ICTY ended up indicting 161 suspects, eventually developdovic denied having a criminal record, and said that offi- ing a focus on senior or command-level defendants. That cials in Republika Srpska had been trying to cast him in meant that the vast majority of suspects from the wars “a negative light” as a result of his testimony at ear- would not be prosecuted. In 2003, the ICTY adopted a lier ICTY cases. He said he would face a fresh round of “completion strategy” that has the domestic courts of the “consequences” for his present testimony. former Yugoslav republics – principally, Bosnia-Herzegov“I came here to tell the truth,” Davidovic shot back at ina, Croatia and Serbia – taking back a significant amount Karadzic – “painful” truths. “Mr. Karadzic, I am a Serb, a of responsibility for war crimes cases. The ICTY still has member of the Serb people – my father, my mother, my wife “primacy” under the tribunal’s statute, meaning it can as– and I do not allow you to impute things of this nature to me.” sume jurisdiction over any case it wants from the wars, but Far away, in Serbia, it remained unclear if the ICTY’s the hope was that the domestic courts could prosecute a attempts at establishing the hardest truths of the wars significant number of lower-level and mid-level offenders were ever going to have the type of impact desired by to fill justice gaps left by the tribunal. tribunal proponents. Much of the fighting took place after As part of this effort, Serbia, in 2003, established a Croatia, in 1991, and Bosnia-Herzegovina, in 1992, seceded new War Crimes Chamber, based in Belgrade, within its from the Socialist Federal Republic of Yugoslavia, with national court system. The chamber is a purely domestic Serbia in control of the Yugoslav Army and police that institution, outside the control of the ICTY or any other were aligned with various Serb paramilitary and de- international agency, which are limited to monitoring and fense units in the region. (Serbia and another re- providing assistance when needed. In addition to filling public, Montenegro, formed a new Federal Republic justice gaps, supporters of the new court hoped it would of Yugoslavia in 1992; they became a looser union of states build skills and restore trust in the judiciary. A chamber in 2003, and Montenegro became independent in 2006.) run by Serbs might also be viewed as more legitimate by The 1995 Dayton Accords concluded the war, though the population and, therefore, do a better job than the ICTY the ICTY later assumed jurisdiction of crimes at convincing people about the extent of atrocities commitcommitted during the Kosovo war between 1998 and ted by Serbs. This type of acceptance is often seen as a pre1999, when Albanians in that region fought cursor to reconciliation or at least improved trust between for independence from Yugoslavia. (After the ethnic groups in the region. war, the U.N. assumed administration of Kosovo, which As scholars and human rights activists have come to reclater declared its independence – not recognized by ognize in the past few decades, few goals associated with Serbia – in 2008.) Approximately 140,000 people died post-conflict justice efforts are easily attainable, and expecduring the conflicts, with about four million displaced; tations are increasingly tempered for particularly challengrape and other forms of torture were common. ing settings like Serbia – where the legacy of Milosevic’s All sides committed crimes during the wars, which is re- paranoid brand of nationalism has been powerful. Prosecuflected in the range of defendants prosecuted by the ICTY. tors in Serbia’s Office of the War Crimes Prosecutor, tasked Nevertheless, the position of the tribunal – and the interna- with prosecuting cases before the domestic War Crimes tional community generally – is that Serb forces, including Chamber, have faced threats for prosecuting their own the Yugoslav Army and police, as well as Serb defense units citizens at home, as have the chamber’s judges and human and paramilitaries, committed the most atrocities through- rights advocates in the country for supporting the cases.

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Vladimir Vukcevic has been the chief war crimes prosecutor in Serbia since the National Assembly elected him to the new post in 2003. Beginning in 2006, Vukcevic, a former deputy state prosecutor, also coordinated Serbia’s “action team” for the arrests of the final fugitives from The Hague. The failure to arrest Karadzic and another highprofile defendant, Ratko Mladic, the Serb military leader in Bosnia during the war, had long been an embarrassment for both the Serbian government and the ICTY, as well as a source of tension between domestic officials and European leaders. The ICTY has mostly been dependent on governments of the former Yugoslavia to arrest and turn over suspects, and the European Union conditioned Serbia’s candidacy for EU membership on compliance to these obligations. In 2011, Serb security services arrested both Mladic and the last ICTY fugitive indictee, Goran Hadzic, a Serb leader in Croatia during the war, and transferred them to the tribunal. In February 2012, then-President Boris Tadic presented Vukcevic and the action team with an honor on Serbia’s day of statehood in recognition of their work.

In the domestic War Crimes Chamber, Vukcevic and his team of eight deputies have also notched some impressive trial victories, with final convictions of 58 individuals for a total of 668 years in prison as of late 2012. Most of the cases have targeted Serbs despite long-held concerns that national courts in the region might be unable to prosecute their ethnic majorities. The office has received praise from a range of international observers, including officials from the ICTY, the European Union and the U.S. But the office has also faced criticism at home for a dearth of cases against higherlevel army and police officials who have political influence in Serbia; most of the defendants have been lower-level offenders or members of paramilitary and territorial defense units outside the formal state apparatus. Investigations have also been complicated by allegations that the witness protection unit for war crimes cases, housed within the police forces, has been pressuring witnesses not to testify.

Perhaps the harshest critic of the office is Natasa Kandic, who is among the most renowned human rights advocates in Europe and the founder of the Humanitarian Law Center, a nongovernmental organization in Belgrade. Kandic has said that the prosecutor's office lacks the political will to prosecute higher-ranking officials. Vukcevic's office has publicly disputed this notion, contending that it resists political pressures and will bring cases against any individuals “regardless of their respective positions” if it can do so based on the evidence.

“The very fact that a number of Serbs have been convicted for war crimes against non-Serbs, that the Serbian judiciary and the state have taken a stand behind the victims in these cases and sent the perpetrators to prison, that is very important for reconciliation,” Ivan Jovanovic, the Belgrade-based war crimes monitor at the Organization for Security and Cooperation in Europe, or OSCE, said in L AW D R A G O N

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an interview. “But certainly there will be many people who deserve to be prosecuted for what they did during the wars who will pass away in their own beds, surrounded by their family members, without spending a single day in prison.

And that is not a good thing.”

The mixed results and ongoing challenges in Serbia undoubtedly offer lessons for future accountability efforts in turbulent post-conflict domestic settings, particularly for efforts that may benefit from complementary relationships between international and domestic tribunals – as the ICTY and the former Yugoslav republics have attempted. Such scenarios are particularly relevant in the age of the ICC. Despite its jurisdiction over recent conflicts, the ICC is a self-described “court of last resort,” with national courts obligated to try their own cases whenever possible. Just what those lessons are remains a matter of debate, both within Serbia and internationally among organizations that have a stake in promoting prosecutions for serious human rights violations.

The uncertainty of Serbia’s commitment to confronting its past may have intensified with the May 2012 election to the presidency of Tomislav Nikolic, the leader of the Serbian Progressive Party who defeated Tadic, an official widely seen as pro-Western and generally praised for prioritizing cooperation with the ICTY. Tadic had taken other steps to recognize Serb war crimes by attending ceremonies at the sites of Srebrenica and Vukovar, the site of another massacre, in Croatia. Nikolic, in contrast, was once a high-ranking member of the ultranationalist Serbian Radical Party, whose former leader, Vojislav Seselj, is also on trial at The Hague for alleged wartime crimes. Though he has softened his nationalism in recent years and favors EU integration, Nikolic immediately caused concern after his election by stating that the Srebrenica massacre did not amount to genocide. Milosevic’s former spokesman, Ivica Dacic, is now Serbia’s Prime Minister.

With all suspects finally in custody, the ICTY estimates that all trials and appeals will finish by 2016. In an interview, Vukcevic declined to estimate how long the domestic system will need to fulfill its mandate, though he did not think it would take decades, as some observers have thought.

"What matters most ... is the political willingness – or the readiness of society – that a consensus be reached over this issue," Vukcevic said. "I believe that, by having the ICTY indictees transferred to The Hague, we have demonstrated as a society our readiness for catharsis."

THE SREBRENICA-POTOCARI MEMORIAL AND

Cemetery, in Potocari, Bosnia-Herzegovina, is a good place for visitors new to the region to begin to understand some of the unresolved facets and lingering resentments of the wars. The memorial, with significant donations from the U.S. and other foreign governments, opened in 2003 at the site of the U.N. base in Potocari, where Muslims had unSPECIAL ISSUE

successfully sought refuge. (In 2005, Bosnian police found two bombs at the site just days before a ceremony on the 10-year anniversary of the Srebrenica massacre.) The long stretches of graves are occasionally interrupted by open ditches, ready for new burials. By the middle of 2012, fewer than six thousand of the 7,000 to 8,000 people massacred were buried here; remains in mass graves are difficult to identify, a source of ongoing torment to the families of those killed.

A detailed explanation of the identification process is offered at the Sarajevo office of the International Commission on Missing Persons, which collects blood samples from relatives of the victims with the hopes of matching the DNA to collected bone samples. The International Committee for the Red Cross estimates that more than 13,000 people remain missing from the wars in Croatia, Bosnia-Herzegovina and Kosovo, in addition to those killed and victimized by displacement, torture and other forms of abuse.

How to address such massive crimes? Trials were not the obvious solution as Yugoslavia was being torn apart by war. Any momentum created by Nuremberg and Tokyo tribunals was halted by the divisions of the Cold War, which prevented the international community from agreeing on a new international criminal tribunal. But the field of transitional justice – the use of justice mechanisms in transitioning societies to address crimes from a period of war or oppression – started to solidify in 1980s and 1990s. A number of books, including Kathryn Sikkink’s “The Justice Cascade,” identify the factors involved, including the strengthening of the global human rights movement and the transitions to democracy in Latin American and Eastern European nations. Trials, truth commissions, lustration and reparation polices became increasingly common in post-conflict settings; memorials and local reconciliation rituals or programs also joined the mix of “justice” tools.

The end of the Cold War was a key factor in the U.N.’s ability to form international criminal tribunals for situations in which domestic courts were too unstable to credibly handle their own cases. (The ICTY was nevertheless an unlikely institution and struggled in its early years to become a credible court; as has been documented in several accounts, the Western powers behind the court were themselves somewhat ambivalent about their support, mostly out of a concern for the delicate political balance required PHOTO BY: EPA/NEWSCOM

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to achieve and then sustain THE ACTIVIST: peace in the region.) In addition The Humanitarian Law to the ICTY, the U.N. created Center's Natasa Kanthe International Criminal Tridic has earned praise bunal for Rwanda, for the 1994 for securing the pargenocide, and has played a role ticipation of witnesses in establishing so-called hybrid at war crimes trials ad hoc tribunals – staffed by a but has butted heads mix of international and domeswith prosecutors over tic professionals – to prosecute the targets of certain crimes from conflicts in places investigations. like Sierra Leone, Cambodia and East Timor.

The foundational theory of the field is that societies that do not account for past human rights violations are more likely to experience future turmoil and a reoccurrence of crimes, whereas transitional justice strategies can help promote democratization, victim and survivor healing, deterrence of future crimes, an accurate historical documentation of past crimes, and reconciliation, or at least a greater chance of stability in a nation or region. The varying theoretical claims are not always backed by clear empirical evidence, but few advocates or academics support a total-amnesty approach without any attempt to document or address past crimes. What is more hotly contested is which justice mechanisms work best in particular settings. While it has become more common in recent years to view the mechanisms as complementary, debates continue over the value of “truth” versus “justice,” which often pits truth commissions against the more punitive trial approach.

Both critics and supporters of trials have relied on the ICTY to back their positions. By one assessment, the tribunal has run credible proceedings that have established important legal records of some of the worst atrocities, as well as new precedents in international criminal law. Though often criticized as a token gesture by Western nations unwilling to stop the bloodshed by intervening militarily, the tribunal’s achievements allowed proponents to successfully push for the creation of a permanent ICC. But the high costs and glacial movement of the tribunal’s cases, along with its

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inability to gain trust in resistant settings like Serbia or to measurably a n d c e m et er y promote reconciliation (at times, i n S re b renic a it has seemed to do the opposite), P o t o c a r i ho no rs raised concerns. Critics have used t h e v i c t i ms of t he these shortcomings to argue that 1 9 9 5 m a s sa c re. international tribunals are not only R e m a i n s a re st ill divisive but a waste of resources that b e i n g i d e nt ified could be spent better elsewhere in a n d b u r i e d. fledgling societies.

More practically, the short comings also contributed to the U.N. Security Council and the ICTY developing the 2003 completion strategy that placed an increased responsibility on the national courts.

The completion strategy also reflected a belief that the passage of time had stabilized national governments of the former Yugoslavia to the point where they could begin to handle their own war crimes cases. (In fact, some war crimes trials had taken place in national courts in the region, though the credibility of the proceedings were of regular concern to human rights groups.)

The situation in Serbia was nevertheless harrowing in 2003. Milosevic was ousted in 2000 by the Democratic Opposition of Serbia, a tenuous alliance between the nationalism of Vojislav Kostunica, who became president, and the more moderate and pro-West factions led by Zoran Dindic, who became prime minister. Dindic operated behind Kostunica’s back to orchestrate Milosevic’s arrest and transfer to the ICTY in 2001. In March 2003, an organized crime group assassinated Dindic in an operation reportedly called “Stop The Hague.” The tragedy not only intensified crackdowns on organized crime, which had flourished under Milosevic, but it also created increased momentum for a War Crimes Chamber. Significant domestic support already existed for the establishment of a new chamber for organized crime cases. International pressure from Europe and the U.S. along with the expectation of ICTY case transfers allowed the creation of the Belgrade War Crimes Chamber to be “folded into” the same process, according to OSCE’s Jovanovic; both new chambers were created in 2003. Jovanovic also said there was a genuine desire on the part of some Serb prosecutors and judges as well as other members of the government to prove that Serbia could handle its own war crimes cases.

Vukcevic said he accepted the job because he felt it was important and honorable work.

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"We prosecute people whose hands are stained with blood and who brought shame on our country," he said. "Our children do not deserve to be left with such a heavy burden on their shoulders, and that is ... a strong motive behind one’s decision to take on a duty like this."

A successful completion strategy would also require credible domestic prosecutions in the other republics. In Bosnia-Herzegovina, where the war had inflicted tremendous damage to physical and administrative infrastructures, the new domestic chamber required more formal international participation, even though there was a stronger demand for war crimes cases in that country. The U.N. Office of the High Representative for Bosnia-Herzegovina and the ICTY established a specialized war crimes chamber in Sarajevo that began operations in 2005. Though part of the domestic justice system, the court was set up as something of a hybrid with the participation of international judges and prosecutors who have been phased out of the operations over time. Like Serbia, Croatia’s war crimes cases have taken place without international participation, most of them in various local courts around the country, though reforms in recent years were designed to funnel the cases to specialized chambers.

All of these domestic efforts have received their share of mixed reviews over the years. The dedicated chambers in Bosnia-Herzegovina and Serbia have been generally viewed as meeting international legal standards for war crimes prosecutions. The cases in Croatia, with so many tried in dispersed local courts, have received the most criticism for perceived biases in predominantly targeting the country’s Serbs, many of whom have been convicted on weak evidence and in absentia. The process has become more professionalized as the prosecutor’s office has focused on

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PHOTO BY: JOHN RYAN

more substantiated cases, including those against Croats, past – a complete military victory or a toppling of a govaccording to the OSCE. (The U.N. Mission to Kosovo, and ernment – or where incoming and outgoing regimes reach more recently the European Rule of Law Mission in Kosovo, some agreement about how to address past crimes. This have been responsible for war crimes cases there; an OSCE was not the case after the end of the Milosevic era in Serreport in 2010 found a systematic failure to process war bia, which has witnessed a constant push and pull between crimes cases adequately.) nationalist and reformist political forces without any agreeThough staffed only with Serbs, international assistance ment on how to forge a full reckoning of the wars and the has played an important part in the establishment and op- complicated history that preceded them. erations of the domestic system. ICTY staff, the OSCE and A KEY EVENT ON THE ROAD TO WAR WAS the U.S. government have provided training to Serb prosthe 1980 death of Josip Broz Tito, the longtime leader of the ecutors, judges and related personnel. The OSCE and an Socialist Federal Republic of Yugoslavia who had held its outside team of experts retained by the organization prosix republics together since World War II. As recounted vided assistance in drafting the 2003 war crimes legislain many written works, including Gary Bass’ popular book tion, and the OSCE began monitoring all of the cases from about war crimes trials, “Stay the Hand of Vengeance,” Tito the outset. The U.S. Marshals helped the Interior Ministry, suppressed many of the ethnic divisions simmering from which includes the police forces, establish a witness protecthat war, which included massacres of Serbs by the Croatian tion unit to protect and if necessary relocate witnesses. The fascists who supported the Axis powers, as well as reprisal chamber also has a victim and witness support unit, which attacks by the victors.

His death led to a resurgence of coordinates logistical matters for witnesses and victims atnationalism and ethnic suspicions in the decentralized republic. tending proceedings.

The void also made citizens of the republics more susceptible In Jovanovic’s view, some of the biggest challenges in to attaching themselves to strong-willed nationalist leaders 2003 resulted from the lack of experience in “highly comlike Milosevic and Croatia’s Franco Tudjman, according to plex criminal cases with cross-border dimensions” that Kemal Kurspahic, whose book “Prime Time Crime: Balkan would require the participation of reluctant witnesses and Media in War and Peace” documents Milosevic’s alarming the incorporation of evidence and rulings generated by the ICTY – all procedurally new in Serbia. By and large, the control over the public mindset. Kurspahic writes that technical assistance and hard work by domestic actors has Milosevic first used the media to help maneuver his rise to succeeded. Despite criticism over a lack of cases against the power, then kept near-total control throughout his reign highest-level remaining offenders, prosecutors and judges over the state media and other private news outlets, which have demonstrated their ability to process complex and un- were run by ardent supporters or intimidated from straying from the nationalist line; the state-owned TV channel was popular war crimes cases.

“Ten or 15 years ago, the idea that Serb judges and pros- known as “Slobovision.” The endlessly promoted narrative ecutors would be conducting credible cases against Serbs was that of Serbia as the long-suffering victim that needed in Belgrade for crimes committed during the wars was un- to defend itself against surrounding existential threats from thinkable,” said Mark Ellis, the executive director of the Muslims in Kosovo and Bosnia, and Croats. (The narrative International Bar Association, an expert hired by the OSCE easily drowned out some of the courageous work of to evaluate the domestic environment in 2003 and assist independent outlets.)

Drawing comparisons to Nazi Germany, one scholar, Newith the drafting of the legislation. “I think in that historinad Dimitrijevic, describes the Milosevic government as “a cal context, you have to see it as a success.”

Ellis said he saw a critical mass of political will to get populist criminal regime” characterized not by repression but the chamber off the ground in 2003, noting that Serbian popular support. Sabrina Ramet, who has published a number officials agreed to a number of important revisions to the of academic works on Serbia, writes that Serbia suffers from proposed legislation before it reached the National Assem- “a denial syndrome” that when coupled with nationalist sentibly. Still, Ellis, like many observers, recognized a strong ments creates “a powerful concoction in which the society is “culture of impunity” in Serbia, and he knew that support able to escape into a mythic reality in which people (in this of the cases would not be widespread throughout the state case, the Serbs) are portrayed as simultaneously heroic and victimized.” Outsiders more casually familiar with Serbia’s machinery and the public.

Indeed, training and the efforts by justice advocates – in- complicated history, including visiting journalists, might best cluding prosecutors, judges and victims’ representatives avoid making such weighty assessments while at least grasp– can only do so much in a setting that is extremely resis- ing the obvious – that the carryover of nationalist sentiments tant to accountability mechanisms. One relatively uncon- was going to cause serious headaches for the ICTY. Similarly, troversial theory in the area of transitional justice is that Serbia, which is 83 percent Serb with small minorities of Alprosecutions and other justice mechanisms are more likely banians and Bosniaks, was never going to have a groundswell to take hold in societies that have a clean break with the of popular support for domestic war crimes trials.

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Of course, resistance within the government is the more Relations between Serbia and Croatia also took a problematic factor in pursuing war crimes cases. Milos- negative turn in 2011 when Croatia’s parliament – in reevic’s fall did not bring a lustration or vetting policy – as sponse to an indictment of Croat defendants forwarded seen, for example, in Eastern Europe after the dissolu- on to Croatian prosecutors by Vukcevic’s office – passed tion of the Soviet bloc – that would have removed some of a law purporting to invalidate all laws in Serbia that the corrupt and criminal elements from the govern- deal with the prosecution of Croatian citizens from the war. ment and mitigated the disastrous effects of his legacy. (Croatia’s prosecutor did not support the act and continued to Many people in the army and the police have a vested inter- cooperate with Vukcevic’s team.) est in blocking cases.

Yet Serbia’s war crimes prosecution office has had "Obstruction is often inherent in these cases," Vukcevic some advantages, including the transfer of evidence said. "There are people within the police and military ranks from cases that the ICTY had already completed or who are still holding important positions in these institu- initiated, giving Vukcevic’s team a head start in some dotions and who – directly or indirectly – were involved in mestic cases. The office also had evidentiary assistance war crimes. They will do anything in order to evade crimi- from Kandic and the Humanitarian Law Center, which has nal prosecution." been widely praised for locating witnesses in victim populaOne commonly cited problem, which Ellis had warned tions and securing their participation at trials. (In Serbia’s against in 2003, was the placement of the new war crimes legal system, civil society organizations can represent vicinvestigations unit within the police forces, which means tims in the trials and can file private criminal complaints in the unit is often investigating its own colleagues and has matters where the government has not acted.) been viewed as traitorous. Human rights groups have ques“They understood my explanation that they should fight tioned the unit’s initiative on occasion. According to one of for justice by directly participating in the trials, by testifyits reports, the Humanitarian Law Center in 2006 success- ing in court, because that means their testimony will live fully lobbied for the removal of the head of the war crimes forever in the record,” Kandic explained in an interview. investigations unit by contending there was evidence to “Nobody can manipulate their testimony. Every word from suggest that he bears some responsibility for crimes com- their testimony will be there forever. They understood why mitted during the Kosovo war. that’s important.”

War crimes cases are almost always extremely compliThe international assistance has also been ongocated, regardless of the jurisdiction or the preceding con- ing, in Serbia and elsewhere in the region. It culminated flict, often as a result of evidentiary challenges created by in recent years with the War Crimes Justice Project, a a lack of paper trails or other documentation of criminal four-million-Euro effort funded by the European Union intent. This leads to a reliance on witnesses who, whether and run collaboratively by the OSCE, the ICTY and the they are victims or “insiders” with knowledge of crimi- U.N.’s Interregional Crime and Justice Research Instinal acts, will likely be reluctant to testify. In the former tute. According to the OSCE's website, the project proYugoslavia, witnesses are scattered throughout the region, vided training to 800 legal professionals in the region often outside the jurisdiction of the cases to which they and produced curriculum materials on international are relevant. criminal law and ICTY caselaw that are tailored to each The OSCE has worked to facilitate cooperation between the nation’s justice system. Part of the funding was used to different domestic prosecution offices for war crimes. Coop- translate tens of thousands of pages of ICTY trial eration has been most effective between Serbia and Croatia, transcripts and appellate decisions into local languages which entered into an agreement in 2006 over the exchange for use by national prosecutors and judges. The project of evidence and cases to work around each country’s barring also funded additional staff positions in the national chamof extradition of their nationals. Serbia and Bosnia-Herzegov- bers and prosecutor offices. ina have not reached a similar pact. Leaders of the three counPerhaps more important is what this assistance has reptries have also failed to iron out an agreement that would have resented over the years – clear support of the domestic each government focus on prosecuting its own citizens. This is system by the European Union and the United States. Nadesirable because the issuing of arrest warrants by one coun- tionalistic politicians and media outlets have been vocal in try for another country’s citizens has been controversial and their criticism of figures like Vukcevic and Kandic, but the often criticized as politically motivated. In one well-known importance of economic aid and the prospect of EU memexample, a court in London in 2010 refused Serbia’s request bership have prevented these hostile forces from shutting for the extradition of Ejup Ganic, a former member of the Bos- the domestic system down. nian presidency, for his alleged responsibility for war crimes Vukcevic said the biggest threat came in 2004, when against the Yugoslav army. In 2011, an Austrian court refused the justice minister and other members of the government an extradition request for former Bosnia-Herzegovina Gen- wanted to get rid of the war crimes and organized crimes eral Jovan Divjak, also wanted by Serbia authorities. chambers and move their cases into the regular courts.

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He said EU support was instrumental. mated 700 to 900 Bosniaks in Zvornik, Republika Srpska, "There have been pressures and threats, both from those in 1992; and the massacre of about 50 ethnic Albanians in who were in power in the early days of this office and from the Kosovo town of Suva Reka in 1999, among many other informal right-wing extremist groups," Vukcevic said. "At crimes. Prosecutors also have brought cases for some of no point, however, has any such pressure or threat seri- the horrors inflicted on Serb forces and civilians, including ously hampered our efforts to prosecute war crimes." a number of crimes committed by the Kosovo Liberation Vukcevic said that he has sensed "real danger Army between 1998 and 1999. In the summer of 2012, the for my colleagues and myself in several situations so far," “Gnjilane Group” retrial against a large group of former KLA but that prosecutors do not let this interfere with the victims' members over the massacre of Serbs in Gnjilane, Kosovo, right to justice. He added that his team has "complete faith resulted in 11 convictions and six acquittals. (According to in the state authorities which are responsible for our safety." a report of an incident by the prosecutor’s office, the lead defendant made an ominous threat to the deputy prosecuBY SOME MEASURES, THE WAR CRIMES tor during closing arguments: “I shall take my revenge on Chamber has served as an effective complement to the you for what you are doing; should I fail to do so, my chilICTY. As of October 2012, the ICTY has convicted and sen- dren will; in case they are not able to do it, then my grandtenced 64 individuals of a total 161 indictees, with 13 ac- children certainly will.“) quittals and ongoing proceedings for another 35; the rest of The case totals become somewhat less impressive with a the cases have been transferred to national courts or been withdrawn. The domestic system has indicted 146 individuals. In addition to its 58 final convictions and 10 acquittals, the domestic chamber has handed down another 39 convictions and nine acquittals that are on appeal, ac– V L A D I M I R V UCK E V I C cording to information provided by the prosecutor's office. Nine cases are at trial, and many more cases are in investiga- closer look at who has been prosecuted and convicted, howtive stages. As a civil law country, Serbia’s cases are decided ever. The more senior-level officials in the police and army by three-judge panels, not jurors. Investigative judges also left within the chamber’s jurisdiction – those who did not played a key role in guiding investigations in the pre-trial rise to the level to face ICTY prosecution – have tended to period, until 2012, when procedural reforms removed them escape indictment. Prosecutors have successfully targeted from the process to make it more prosecutor-driven and ef- commanders of Serb paramilitary and territorial defense ficient. (Vukcevic said the changes already have shown some units operating during the wars – forces that worked with "positive effects ... in terms of improved efficiency.") but were not formally part of the Federal Republic of YuIt took several years for the final judgments to accumu- goslavia. For example, the cases involving the Vukovar and late in any significant number as a result of the Supreme Zvornik massacres involved the prosecutions of Serbs who Court’s regular overturning of convictions and ordering were quite powerful during the wars in Croatia and Bosnia, of retrials. Many saw political motivations in these rul- but these individuals did not enjoy the same political clout ings. The Supreme Court, left over from the Milosevic era, as members of the army and police in Serbia in the years was not involved in the creation of the War Crimes Cham- after the war. ber, and it seemed reluctant to sign off on controversial The failure to make similar gains up the chains of comcases. In 2010, a number of laws went into effect that re- mand in the police and army ranks has been cited by interstructured Serbia’s judiciary and created a new network of national groups that have monitored domestic efforts, such courts. As part of the many changes, appeals from the War as the International Center for Transitional Justice and Crimes Chamber, now held in the Belgrade Higher Court, Human Rights Watch, as well as local groups such as the go to the Appellate Court in Belgrade. Jovanovic said that Humanitarian Law Center, the Belgrade Center for Human the judges handling war crimes appeals are among the best Rights and the Helsinki Committee for Human Rights in in the nation.

Serbia. (Most observers have also given praise for achieveSubstantively speaking, the cases have tackled crimes re- ments in other areas.) lated to several of the worst war crimes committed by Serbs Vladimir Petrovic, an academic who was an analyst in in the 1990s, including the 1995 Srebrenica genocide; the the war crimes prosecutor’s office when first interviewed 1991 execution of about 200 Croat prisoners of war and ci- for this article, described the problem as “the vacancy in vilians near Vukovar, in Croatia; the massacre of an esti- the middle.” Though the ICTY started with some relatively

“We prosecute people whose hands are stained with blood and who brought s h a m e o n o u r c o u n t r y. "

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low-level offenders, it eventually developed a top-down strategy. Serbia’s War Crimes Chamber, in contrast, could take a bottom-up approach – starting with the lowest-level offenders and moving up to the mid-level commanders outside the ICTY’s range of cases.

“The hope was that we would meet somewhere in the middle,” Petrovic said. If this convergence fails to take place, he added, it will create a significant hole in the legal record established by the cases.

A debate remains over the severity of this shortcoming, as well as its causes. Competing views over these issues have created tension between Vukcevic’s office and Kandic’s Humanitarian Law Center – two institutions ostensibly on the same side of war crimes issues, led by two individuals whose public statements about the importance of accountability efforts often echo each other. (After a 20year tenure, Kandic stepped down as the center's executive director in late 2012; she remains on the board.)

Kandic believes that the indictments and some of the chamber’s rulings show an intention to minimize the responsibility of the state of Serbia, and to focus blame instead on individual bad apples at the lower level. One of the goals of war crimes trials is to establish individual criminal responsibility for atrocities, something Kandic readily acknowledges. (One theory in the field of transitional justice is that individualizing crimes can help prevent victim populations from holding grudges against entire groups of people.) Still, she contends that indictments that more aggressively move up the chain of command and better establish the context of the crimes would place a more appropriate emphasis on state institutions. This would be more consistent with the record established by the ICTY – that much of the Serb wartime leadership engaged in a joint-criminal enterprise during the conflict.

Greater state responsibility might also support legal theories of liability that Serbia owes reparations to victims of the wars. Bosnia-Herzegovina sued Serbia before the International Court of Justice for alleged violations of the Genocide Convention. In a 2007 ruling, the ICJ held that the Srebrenica massacre amounted to genocide but that Serbia was not directly responsible for the acts carried out by the forces in the area, the Republika Srpska army. The court did hold that Serbia violated the convention by failing to stop the killings and failing to turn over key suspects. (Among the controversies of the case, the court did not require Serbia to turn over documents that might have shed more light on the alleged participation of Yugoslavia’s leadership.)

Vukcevic's office has contended that Kandic, who is trained as a sociologist and not a lawyer, is incorrect in her assessments of its performance, and that cases have only been limited by the evidence available. For example, in the Lovas case against former army officials, among other defendants, for the killing of 70 civilians in Lovas, Croatia, in L AW D R A G O N

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1991, Kandic criticized the indictment for not targeting any army generals. Vukcevic issued a public response that “the indictment included all individuals for whom it was possible to find evidence of involvement” and that “there was no evidence of [higher-ranking army officers] having any knowledge of the events in Lovas either before or during" the commission of the crimes.

In responding to questions for this article, Vukcevic said that most of the higher-ranking officials have already been indicted by the ICTY. He said his team operates by the principles of "independence, resistance to all sorts of pressures (political ones in particular), and the equality of treatment for all irrespective of their ethnic backgrounds, religious beliefs or positions in the political and command structures." He added that his office is in the early stages of potential cases against “individuals who occupied high positions in the state system” during the wars.

The Belgrade Center for Human Rights, which had been led by another of the region’s most respected activists, Vojin Dimitrijevic, who died Oct. 5, 2012, at the age of 81, does not believe that the prosecutor’s office “is avoiding the prosecution of the topmost army and police officers,” according to a 2012 report.

The organization instead blames obstructive forces within the government and the challenges posed by regional cooperation, with so many witnesses outside Serbia’s border.

The report noted a number of complications, including that a “considerable number of the Army of Serbia current command staff” fought during the Kosovo war, and that former Milosevic spokesman Dacic (now Prime Minister) had a prominent role in the government as a deputy prime minister.

One of the most high-profile and controversial of the early cases before the War Crimes Chamber was brought in 2005, after the Humanitarian Law Center acquired a tape of the notorious Scorpions paramilitary unit executing six Muslims during the time of the Srebrenica massacres in July 1995. The killings took place in Trnovo, Republika Srpska, where the unit had taken their captives. The Humanitarian Law Center made the tape available to the ICTY, which showed it at the Milosevic trial, and to the media, whose broadcasting of the footage was seen as an important first step in getting citizens to begin to accept that Serbs had committed grave war crimes. The tape also resulted in Serb police arresting the perpetrators who were visible as members of the Scorpions unit; five were indicted, including the commander, Slobodan Medic. Human rights advocates criticized the indictment for describing the Scorpions as a paramilitary unit operating under the Republic of Srpska Krajina’s Army, as opposed to the state security services, and for characterizing the conflict itself as a “civil war” within Bosnia-Herzegovina. Kandic, as the representative of the victims at trial, said that the deputy prosecutor objected to her questioning witnesses about inSPECIAL ISSUE

“The very fact that a number of Serbs have been convicted for war crimes against non-Serbs, that the Serbian judiciary and the state have taken a stand behind the victims in these cases…that is very important for reconciliation.”

– I VAN J O VAN O V I C

stitutional responsibility.

In 2007, the chamber sentenced Medic and another defendant to 20 years, the maximum for war crimes against civilians under Serbia’s criminal code, but gave more lenient sentences of 13 and five years for two of the younger defendants; a fifth defendant was acquitted. In reading the judgment from the bench, Judge Gordana BozilovicPetrvoic said that there was no evidence indicating that the victims were from Srebrenica. The ruling infuriated human rights groups and victims’ family members, who saw a blatant attempt to separate Serbia from the events in Srebrenica. Vukcevic publicly criticized this determination, arguing that “the Chamber erred in giving faith to the defendants’ statements, rather than to those offered by the victims’ families.” He appealed the two lower sentences and the acquittal, but to no avail. (In 2008, the Supreme Court, then still reviewing chamber cases before the restructuring of the judiciary, merely reduced one sentence from 20 to 15 years and ordered a retrial for another defendant.) Kandic said the Scorpions trial was a wasted opportunity, and one that signaled that the domestic war crimes system would be more political than professional in its operations.

Vukcevic said that he did not think "the court ruling outweighed the good effects of the convictions."

The OSCE’s Jovanovic said he “partly shares the view” that some cases appear to shield the state from responsibility for crimes committed in Croatia and, in particular, Bosnia. However, he cautioned that there may not always be an abundance of evidence that directly links the state to some of the events in the Bosnian war.

“I don’t think the prosecution is attempting to, or that it can, protect the state from responsibility in Kosovo, where there already are convictions of police officers, even if at the lower level of the police,” he added.

The Kosovo cases have been mired in controversy, which is understandable given the immense tension there. More than 80 countries, including the U.S., have recognized Kosovo’s declaration of independence.

Serbia is adamant in its opposition. Serbs view the Kosovo region as an integral part of the nation’s history and are concerned about the status of the Serb minority population there.

Vukcevic’s office targeted a powerful figure, Radoslav Mitrovic, the commander of the 37th Battalion of the Special SPECIAL ISSUE

Police Unit, in the Suva Reka case, over the killing of 50 civilians in Kosovo in March 1999. Forty-eight of the victims were members of the same extended Muslim family.

In announcing the case against seven defendants in 2006, Bruno Vekaric, a deputy prosecutor who also serves as an office spokesman, said that the massacred civilians included “four babies, 10 children, a pregnant woman and a 100-year-old woman.” The trial stretched over three years and included the participation of more than 100 witnesses.

In April 2009, the War Crimes Chamber convicted just four of the defendants (yielding sentences of 68 years in prison), and acquitted three, including Mitrovic. The prosecution had argued at trial that Mitrovic had effective control over the police forces during the operation, and prosecutors presented corroborating witnesses who worked at the Suva Reka Police Department at the time. A Humanitarian Law Center review of the case contended that “the court protected [Mitrovic], by laying the blame and the command responsibility on the local chief of police.”

A legal technicality may have contributed to the chamber’s ruling, revealing yet another challenge facing the domestic system. The criminal code that Serbia inherited from the Federal Republic of Yugoslavia was generally well-equipped to prosecute war crimes and crimes against humanity, but it had not incorporated certain provisions of the ICTY statute, including a broader definition of “command responsibility” that attaches criminal responsibility to commanders who knew of illegal conduct and failed to stop or punish it. The 2003 law establishing the War Crimes Chamber did not include the ICTY’s command responsibility provisions out of a concern that retroactive application to crimes of the 1990s would not be constitutional. Prosecutors can still use existing provisions related to aiding and abetting theories to target commanders, but Jovanovic said the Suva Reka case might suggest the limitations of doing so.

Subsequent investigations in Kosovo have called into question the credibility of the U.S.-trained witness protection unit, which was praised during the early years of its operations. In March 2009, prosecutors initiated a new case against members of the 37th Battalion of the Special Police Unit, including Mitrovic, after the Humanitarian Law Center filed a criminal complaint against 16 of the members. Four were arrested at the request of the prosecu-

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tor’s office; Mitrovic was already in custody for the pending Suva Reka case. The center’s complaint was based on insider witnesses from the police force in Leskovac, who

then became protected witnesses for the prosecution’s case; two of them were relocated from Leskovac. However, the witnesses claimed that the unit charged with their protection actually harassed them, pressured them to discontinue their cooperation and asked for information about other potential witnesses. According to a Humanitarian Law Center report, one witness claimed that unit members “cut off his electricity from time to time, [raided] his apartment at any time of day … have asked him if he has engaged in sexual intercourse with Natasa Kandic, and [said] that it is better to withdraw his statement.”

The protected witnesses departed the case, which subsequently stalled. (The suspects were also released.)

Jovanovic said that the controversy is complicated by the possibility that, as prosecutors and members of the unit have contended, a few of the insider witnesses made inappropriate demands for their testimony. Nevertheless, he said it appears clear that the witness protection unit pressured the witnesses not to testify. This is an alarming problem for war crimes cases, which often require insider witnesses, and it has led to recommendations by European Union officials and other observers that the unit be removed from the police forces of the Interior Ministry and placed inside the Justice Ministry. The witness protection problem and other L AW D R A G O N

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obstructive forces led the Belgrade Center for Human Rights to conclude that “the Serbia authorities are not prepared to confront the past and prosecute those most responsible for the grave crimes” from the wars.

The prosecutor’s office has reportedly acknowledged problems with the unit, though when asked about the scandal for this article Vukcevic said his office has confidence in the witness protection services.

"Most certainly, the situation is often complicated and quite difficult at times," he added. "Still, a fact that should not be overlooked is that the effectiveness of such a protective mechanism also depends on the witnesses themselves, i.e. on their proper understanding of what their own rights and duties are within the program."

Kandic said that the unit has not behaved inappropriately towards victim or other witnesses, who can testify safely even if they are ultimately angered by the judgments. Petrovic, the former analyst from the prosecutor's office, added that the unit has performed well in some cases, but it varies by the individuals involved with each assignment: “If it’s done by normal people, it’s good; if not, it can be a problem.”

Tensions between the prosecutor's office and Kandic have continued to escalate. The Humanitarian Law Center’s March 2011 report on the witness protection problems also alleged that the deputy war crimes prosecutor on the case, Dragoljub Stankovic, THE PR O TE S TS : did not behave professionally and A rres ts an d advised witnesses not to testify. trans fer s o f Kandic also appeared on the B92 ra- high-leve l IC TY dio station that month and said her fugitive s, su ch as organization had information from Ratko M lad ic, th e sources who claimed that the release former Bo sn ian of Mitrovic and the other suspects S erb m ilitar y involved the paying of a bribe to the leader, h ave b e e n prosecutor’s office. Though she did met w ith p ro te sts not name the alleged beneficiary, by those wh o Stankovic was described as such view th e accu se d in the center's report, and he filed as w ar h e ro e s.

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PHOTO BY: LESKOVSEK MATEJ/SIPA/NEWSCOM

a defamation case against Kandic. The prosecutor’s office also issued an angry rebuttal and defense of Stankovic, noting that his security had been threatened for his work on several controversial war crimes cases and contending that he was not involved in the decision to release the suspects.

Kandic had been sued before for her public comments on war crimes cases, and would be again. A 2012 Humanitarian Law Center report claimed that Lieutenant General Ljubisa Dikovic – whom Tadic appointed in December 2011 to head the Serbian army – was responsible for war crimes in Kosovo. Vukcevic claimed that no evidence supported the allegations, and Dikovic promptly sued Kandic for her comments, which she has continued to defend.

Kandic and the prosecutor's office have traded criticisms through reports and public statements. In November 2011, the prosecutor's office issued a detailed 15-page report to challenge three of the Humanitarian Law Center’s recent reports, calling Kandic “amateurish,” “ignorant” of the case files and incompetent as a victims’ representative. (A change to the procedure code prevents non-lawyers from representing victims in the proceedings, which blocked Kandic from directly participating in the trials, leaving that role to lawyers at the Humanitarian Law Center.) The report said that “she remains invariably committed to her own interest to obtain proofs that our state is responsible for all crimes in Croatia, Bosnia-Herzegovina and in Kosovo, rather than individual perpetrators against whom proceedings are conducted.”

Though the office has in the past acknowledged her crucial role in securing the participation of witnesses – the Humanitarian Law Center counted more than 70 who had testified at its invitation and assistance by the end of 2011 – Kandic believes that the office has changed its tone towards her for her heightened criticism in recent years, including what she sees as selective indictments as well as politically motivated arrests (or issuing of arrest warrants) for non-Serbs.

Vukcevic said his office has a good relationship with the human rights community and included Kandic's organization in the mix.

"Regardless of some disagreements, which are mainly of a strategic nature, we appreciate the assistance of the Humanitarian Law Center in the collection of evidence and access to war crimes witnesses," he said. "We continue to perceive them as our partners and a positive force."

In any event, there are significant payoffs for all stakeholders, not least of all the victims, as revealed in the Lovas case involving the killing of 70 Croatian civilians in 1991.

In June 2012, the trial chamber sentenced 14 defendants, including members of the Yugoslav army and the territorial defense unit in the area, to a total of 128 years in prison.

The verdict followed 182 days in trial, including the testimony of 194 witnesses.

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“Serbia’s judicial authorities have sent a clear message of respect to the victims, and apologies for all their suffering in those unfortunate years,“ Vekaric, the deputy prosecutor and spokesperson, said after the verdict. “It is essential to make it clear that the victims will not be forgotten and that the perpetrators of such and similar crimes will be adequately punished.”

Though critical of the indictment for not targeting generals, Kandic was extremely pleased with the course of the trial and the verdicts.

“I am happy because the families and the local authorities who came from Lovas are happy,” she said. “It is important that they are satisfied with the trial and the work of the presiding judge, who did an excellent job.”

Meanwhile, Vukcevic’s team has remained in the news for several pending investigations. Prosecutors are reportedly considering a case against wartime media figures who, under some theory, may bear responsibility for inciting violence during the conflicts. The office also has opened cases against the individuals from the support networks that allowed The Hague fugitives to remain at large for so long.

(Serge Brammertz, the chief prosecutor at the ICTY, had repeatedly urged for such a case.)

Another of the high-profile pending investigations focuses on whether Albanians in the KLA harvested organs from Serbs captured during the war for trafficking, which Albania and Kosovo have denied. Of particular concern to the U.S. State Department and the Embassy in Belgrade is the criminal case against two former Serb police officers for allegedly murdering three American brothers – Agron, Ylli and Mehmet Bytyqi – who reportedly had traveled to Kosovo to assist pro-independence forces. In May 2012, the War Crimes Chamber acquitted the defendants, and Vukcevic’s announced it would appeal.

GIVEN ITS HEADLINE-GRABBING CASELOAD,

the ICC regime might not appear to the casual observer to favor domestic prosecutions. Under Article 17 of the governing Rome Statute, however, the ICC can only exercise jurisdiction if national courts are “unwilling or unable genuinely” to prosecute crimes falling under the statute. The principle is known as “complementarity,” the exact meaning and implementation of which is the subject of much debate and analysis among scholars and advocates who follow the court. But most agree that domestic courts should handle their own cases if doing so is possible. States that ratify the treaty (121 have as of October 2012) are required to incorporate ICC crimes into their domestic legislation.

The ICTY has continued to assert its primacy over its pending cases, such as those of the most recently arrested high-level fugitives. Nevertheless, some of the reasoning behind the push for domestic participation in the former Yugoslavia was based on complementarity principles – namely, that domestic cases are closer to those most af-

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fected by the proceedings and can restore trust and develop skills in national justice systems. Writing in 2009 about the ICTY’s completion strategy, then-President of the ICTY Fausto Pocar said that “primacy” and “complementarity” were actually “two sides of the same coin” – the ICTY had assumed jurisdiction over cases because of the inability of national courts to do so, and now the tribunal could send cases back to their rightful jurisdictions. (This puts a somewhat positive spin on the motivations behind completion strategy, which was also hastened by concerns about the costs of international tribunals.)

Seen this way, the mix of international and domestic

mestic system enjoys greater legitimacy in Serbia than the ICTY. Granted, the bar was extremely low: In results from the 2009 poll, 78 percent of Serbs had a very negative or mostly negative view of the ICTY (while majorities of Albanian and Bosniak citizens in Serbia had positive views).

The domestic system has not necessarily received glowing reviews. In the surveys, only about a third of the respondents believed that the prosecutor’s office had the courage to prosecute high-ranking state officials, and a quarter or less have believed that prosecutors and judges act independently of pressure from state authorities and the public.

Still, only 8 percent from the 2009 survey believed

“ Tr i a l s d e a l w i t h f a c t s a n d t h e t e s t i mony of witnesses. This is better than a climate without trials.”

– N ATA S A K A ND I C cases that have emerged in response to war crimes in the former Yugoslavia may suggest tandem responses to future atrocities falling under the jurisdiction of the Rome Statute.

The ICC may need to exercise jurisdiction in particularly unstable situations, but both the court and international community at large will expect domestic courts to begin processing cases as soon as possible. For those who favor prosecutions after conflicts, this may be crucial to fill justice gaps left by international tribunals, as the ICC has tended to target only a handful or so of high-level suspects in its early cases. The experience of the former Yugoslavia is also likely relevant to accountability efforts that do not involve any international cases, but where domestic courts need significant international assistance. In a 2011 presentation, David Tolbert, the president of the International Center for Transitional Justice, said that the future of international justice would rely on “nationally-based courts which utilize the support and expertise of international experts,” with a focus on capacity building.

Serbia’s experience provides an opportunity to evaluate such relationships between international and domestic institutions. The domestic system has clearly performed well under certain principles of complementarity. Most sources agree that the war crimes effort has strengthened Serbia’s justice system. Jovanovic said that the skills associated with complex cross-border war crimes cases have been put to use in other criminal matters. The cases have begun to fill justice gaps by prosecuting individuals untouched by the ICTY, however much that effort remains a work in process. Vukcevic said the improvement of the "national justice system is an undeniable fact."

Public opinion polls conducted by the OSCE and partnering organizations in recent years also show that the doL AW D R A G O N

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that the point of the domestic system is to “place guilt of wartime sufferings on the Serbs.” That report concluded that, when finding Serbs guilty, respondents believed that “the court reached the decision solely on basis of evidence and hence accept what has been determined,” though the percentage holding that opinion dipped from 57 to 50 percent between the 2009 and 2011 polls.

The sizeable acceptance of case results involving Serbs would seem to constitute a notable achievement.

Yet transitional justice efforts are intended to contribute to more transformative goals related to the long-term health of a society or region. The most cherished goal, reconciliation, is also the most fraught with complexity: It can mean individual victim-to-perpetrator forgiveness or improved trust and peaceful co-existence between previously combative ethnic groups or political parties, among other interpretations. In interviews at The Hague and in the former Yugoslavia, the most common theme to emerge regarding transitional justice was that the processes of reconciliation can last decades or longer, and still may never reach satisfying conclusions for the wartime generation. The anticipated benefits of “reconciliation” were tossed around rather easily during the early years of the ICTY, burdening the institution with enormous expectations that led to disappointment among its supporters and constituencies.

Skeptics of punitive approaches do not limit their criticisms to the ICTY or international tribunals generally.

Indeed, many lament the emerging consensus over an interpretation of complementarity that requires ICC states to prosecute offenders at home, when truth commissions and other locally developed mechanisms might be more constructive while also satisfying the ICC’s desire to end SPECIAL ISSUE

impunity. A widely shared view is that truth commissions will almost always have a better chance at establishing the historical causes and full range of crimes and victim experiences of any given conflict or period of oppression; trials are necessarily narrow by focusing on individuals, however well the crimes are contextualized.

Serbia has yet to benefit from such a truth initiative.

Kostunica, with questionable motivations, attempted to form a truth commission in 2001 whose composition was not considered credible and the process died before implementation. An impressive effort composed of many organizations is underway throughout the entire former Yugoslavia to push for a regional truth commission, known as RECOM. Advocates of the process want RECOM to include the participation of victims, civil society organizations and all of the governments of nations that were party to the conflicts. Though doubts remain about the chances of securing formal support from the governments, Croatian President Ivo Josipovic has been public in his support of the initiative and suggested his counterparts also look into possible means of implementation.

It is often unclear what trials can accomplish on their own. At times, trial proponents in the field of transitional justice have scaled back expectations in recent years, in no small part due to the mixed performance of the ad hoc tribunals. They have the luxury of falling back on a legalistic premise – that the prosecution of many cases should not be viewed as an option but as required by international law, given that the Genocide Convention, the Torture Convention and “grave breaches” provision of the Geneva Conventions require states to prosecute or extradite offenders. (A more controversial argument is that customary international law now requires nations to prosecute gross human rights violations.) Still, there remains a belief that war crimes cases, when well conducted, can help promote the rule of law, protect and elevate the rights of victims, remove dangerous criminals from the streets and establish a credible legal record of atrocities. Such a legal record can at least contribute to an accurate understanding of past crimes that is shared among different ethnic groups.

That last development would surely be transformative in Serbia, as elsewhere in the region, but it has yet to materialize. Serbs may accept the results of individual domestic cases, but not the truth about the broader patterns of atrocities. In the 2011 OSCE public opinion poll, 69 percent of those interviewed believed that Serbs suffered the most during the wars. The respondents believed that Croats, Albanians and Bosniaks (in that order) committed the most crimes during the wars, with Serbs committing the fewest. In addition, 52 percent either did not know what happened in Srebrenica, thought the crimes were made up or that there were casualties in battle but no executions; only 15 percent believed the truth of what actually SPECIAL ISSUE

happened, that more than 7,000 Bosniaks were executed.

From those measures, neither the ICTY nor the domestic War Crimes Chamber appear to have contributed to a shared, accurate understanding of the events of the wars.

At least part of the explanation for the ICTY’s failure in this area is presented in Jelena Subotic’s highly regarded book, “Hijacked Justice,” which offers a negative assessment of transitional justice efforts in the former Yugoslavia.

Her chief contention with Serbia is that the use of conditionality – the lure of economic aid and EU membership to secure cooperation with the ICTY, specifically, the arrests of suspects – turned war crimes accountability into a “business transition” that avoided any true national reckoning of the past. Subotic recounts how the post-Milosevic Kostunica government orchestrated a series of “voluntary surrenders” that had ICTY indictees transferred amidst praises for their patriotism and sacrifice – without mentioning the nature of the alleged crimes or the victims. The prospect of EU membership clearly contributed to the May 2008 election of Boris Tadic’s Democratic Party, which created a more favorable environment for war crimes accountability efforts. Subotic nevertheless contends that the EU and Serbia’s numbers-based approach to compliance limited the positive effects that a more genuine transitional justice strategy might have had on Serbian society and governmental institutions.

The prevailing wisdom also places blame on the ICTY itself for failing to invest enough resources into outreach activities to explain its mission and the composition of the cases, in effect allowing its message to become “hijacked” by nationalist politicians. In fact, the ICTY has arranged a number of impressive outreach activities throughout the region, but these efforts are seen as too little, too late. The domestic system has received praise for its public information efforts and proactive relationship with the media. In surveys of journalists in Serbia, Vukcevic and his deputy Vekaric have been named the “most communicative state officials.” However, there is limited media or public interest in the cases. In the OSCE polls, very few Serbs could identify any specific cases that have occurred in the domestic chamber. (Most observers agree that televising chamber proceedings would help.)

Nevertheless, Vukcevic believes that the domestic cases have been contributing to reconciliation.

“In my view, the greatest paradox lies in the fact that cases against individual perpetrators do more for the process of reconciliation than those against top-level indictees,” he explained. “Namely, it is generally easier for people to identify themselves with the victim when they hear that he or she was killed, raped or tortured by a concrete individual.

Cases against the highest government officials are complicated and remote from ordinary people."

In addition, the legal records of both the ICTY and Serbia’s War Crimes Chamber – the most tangible outcomes under their control – continue to grow. How that record is

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used may be largely out of the courts’ control, but its development is consistent with any number of worthwhile transitional justice goals. A more critical interpretation of the domestic cases might question whether their cumulative effect would unduly minimize state complicity. But even Kandic does not qualify her support for the existence of the system itself.

“Trials are very important, even the bad ones, because they establish the facts, and the facts are different than the judgments and the verdicts,” she said. “In 10 years, we might have more professional institutions, and we might have historians who will take all the facts established by the trials and start to discuss them. Trials deal with facts and the testimony of witnesses. This is better than a climate without trials.”

TIME

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sure. Bringing war crimes cases in Serbia, he said, does not come with a political payoff, unlike organized crimes cases, which are widely believed to threaten the state.

“It will very much depend on the personal ability, persistence, courage and determination of the investigators and prosecutors to produce some serious results, to take some personal risk and to make some unpopular moves,” he said.

If anything, the experience of Serbia and the former Yugoslavia generally suggests that a long-term commitment from both domestic and international institutions will likely be required develop a credible and constructive war crimes system in particularly resistant settings. That might be the most obvious lesson for justice advocates who interpret complementarity as mandating post-conflict trials in the image of the ICC. The International Bar Association’s Ellis, who is working on a book about complementarity, said that the lingering question in the ICC regime is who exactly will provide this training and assistance, given that the court itself has said it will not have the resources to do so.

“That is the gap in the paradigm of the Rome Statute,” Ellis said.

Serbia’s experience similarly suggests that fairly assessing societal outcomes will require a great deal of patience.

It is probably unrealistic to have expected public opinion about the wars to have changed dramatically by now, given the powerful historical forces at play and the relative recency of Milosevic’s rule. Despite limited public engagement with the domestic cases, interviews with a range of stakeholders suggest that the cases have made it more common to talk about war crimes in Serbia. Stakeholders also suggest that a more realistic initial goal might be an increased acceptance among Serbs of some of the basic truths about the wars, rather than a shared understanding about the patterns of atrocities among different ethnic groups.

For example, Petrovic sees “a social consensus” developing in Serbia about the fact that many crimes were committed during the wars, and that something should be done in response.

“The term ‘war crimes’ used to be oxymoronic here,” Petrovic said. “People used to think, ‘If you’re waging war, nothing you do is a crime because it’s war.’ It sounds crazy.

But the idea that something in war is not lawful is new here.”

Vukcevic similarly believes that the domestic cases, benefiting from greater legitimacy and a closer connection to the people, have contributed to a growing realization that criminal charges against Serbs result from "horrible crimes" and not from political motivations – the most frequent criticism of the ICTY. "Afforded personal insight into the case proceedings, people will soon realize that the accused are not heroes but infamous criminals," Vukcevic said. "Once aware of that, people will easily come to terms with the fact that crimes were not committed only by people of other nationalities, but also by their compatriots – in this particular case, people of Serbian nationality." ■

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with war crimes trials. On the one hand, evidence disappears, witnesses die and memories fade, all of which can thwart or complicate cases. But the passage of time can also reduce the influence of obstructive forces, who themselves may die or at least retire – what Petrovic refers to as “lustration by biology.” This may make certain cases less politically challenging, and it clearly contributed to the weakening of fugitive support networks for ICTY indictees like Mladic.

At the same time, Mladic’s arrest and extradition was met with protests in Serbia with accusations of treason against the Tadic government. The protests were reportedly less intense than those in reaction to Karadzic’s arrest and transfer, but they nevertheless reveal how difficult it may be to prosecute any popular, highranking officials domestically. The OSCE polls also showed increases between 2009 and 2011 in the number of respondents who believe that Serbia should not cooperate with the ICTY, and in those who do not believe the domestic cases are contributing to reconciliation. The 2011 U.S. State Department human rights report for Serbia noted that judges and prosecutors for war crimes cases (as well as those for organized crime cases) continue to receive death threats, and that some personnel require full-time police protection.

At this early stage, it is unclear what effect, if any, the new Nikolic regime will have on the operations of the domestic war crimes system. Nikolic’s Serbian Progressive Party supports EU integration, and so it also supported Mladic’s arrest and extradition as necessary to fulfill Serbia’s obligations. Dissatisfaction with state corruption and the poor economy are the most common explanations for his victory. The news website Balkan Insight reported that ICTY chief prosecutor Brammertz had a positive meeting with Prime Minister Dacic about continued cooperation on war crimes cases.

Yet Jovanovic nevertheless worries that the passage of time could weaken the resolve to zealously pursue the most controversial cases, especially as the EU, largely satisfied with Serbia’s performance, scales back oversight and presSPECIAL ISSUE

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Apartheid’s Legal Legacy South Africa’s successful hosting of the World Cup seemed to render apartheid’s evils a distant memory.

But for victims of the era’s human rights violations, the pain remains fresh – and they still want the government to prosecute the offenders.

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he excitement over the World Cup was hard to miss when traveling around South Africa in late May and early June of 2010. Billboards and radio campaigns pumped Bafana Bafana, the Zulu term for “the boys,” which was the rallying cry and nickname for the national squad that qualified for the tournament as host team. Outdoor craft markets, street vendors and indoor malls all carried a colorful array of official FIFA and counterfeit soccer gear. Taxi drivers, among the most important resources for visitors, were eager for the anticipated business of ticketholders. Taking a more historic view, the South African government touted the Cup – the first-ever hosted in Africa – as a symbol of national pride and proof to the world of the nation’s competence, as well as its successful transition from apartheid.

South Africa is often thought of as a miracle nation for the relative peace and calm it has enjoyed since the first full democratic elections in 1994 brought closure to more than four decades of enforced legal segregation along racial lines. That year, Nelson Mandela and the party of the liberation movement, the African National Congress (ANC), replaced the long-ruling National Party and its leader, F.W. de Klerk, after a protracted period of civil war and political negotiations. The election was followed by the establishment of South Africa’s Truth and Reconciliation Commission, the TRC, which beginning in 1996 held public hearings to document the gross human rights violations of the apartheid era. In one version of this miracle story, the World Cup serves as another symbolic milestone in the successful building of a “Rainbow Nation,” the term of national unity used by TRC chair Archbishop Desmond Tutu and other leaders.

For many victims of apartheid’s crimes, however, this version is just that – a story – and one that does not resolve the era’s complex legal legacy. Many victims and their families are still waiting for the government to prosecute people responsible for the torture, murders, disappearances, detentions, kidnappings and other violence that characterized the apartheid regime’s brutal oppression. And others want justice for the victims of violent acts committed by the liberation movement as it fought to overthrow the apartheid state.

“This dream of the miracle nation is a myth,” Tshepo Madlingozi, an advocate for victims, said in an interview in May 2010.

“The victims have not moved on.”

Madlingozi was in his office at the University of Pretoria, a boisterous, sprawling campus where he taught courses in law and human rights while serving as the national advocacy coordinator for the Khulumani Support Group, a membership

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organization of 58,000 victims of apartheid-era human-rights violations. At the time, the World Cup was less than two weeks away. Madlingozi described the government’s investment of billions of dollars in preparations as an insult to victims who have not received justice, either in the form of criminal trials or sufficient reparations. He cautioned against describing apartheid crimes as “old.”

“These are continuing violations when people are disappeared and the cases are not resolved,” Madlingozi said.

The TRC, however important to the nation’s transition, was never meant to replace prosecutions. The commission could only grant criminal and civil amnesty to perpetrators who provided a full accounting of their politically motivated crimes. The reality is that most people suspected of committing crimes on behalf of the apartheid regime – including government officials and members of the army, police and security forces, particularly those in senior positions – did not participate in the TRC. When completing its work, the TRC referred 300 cases to South Africa’s National Prosecuting Authority, the NPA, for possible prosecution. But these cases, aside from a few exceptions, have not moved forward since the TRC published its final reports in 2003.

The “why” is rooted in a complex mix of legal, social and political factors. The NPA has intermittently cited the challenges of prosecuting decades-old cases, and some South Africans worry that controversial trials could enflame racial tensions.

Nevertheless, at first glance, an outside observer might assume that members of the ANC, which has essentially governed South Africa as a one-party system since 1994, would want to prosecute their former oppressors. But the ANC committed its own share of human rights violations through armed campaigns that claimed the lives of innocent civilians. This

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The festivities of the 2010 World Cup contrasted w i t h t h e p o v e r t y t h at re m a i n s i n S o u t h A f r i ca – a l e g a c y o f a p a r t h e i d ’s b r u t al o p p re s s i o n .

means that an aggressive prosecution policy for apartheidera crimes might end up targeting not only former apartheid actors but also high-level members of the ANC. The result is a peculiar dynamic in which former apartheid actors and anti-apartheid forces from the past conflict share an interest in avoiding prosecutions.

Howard Varney, an attorney with the Cape Town office of the International Center for Transitional Justice, which has advocated for prosecutions, said he was hesitant to speculate about the political factors at play. However, he added that “the longer the NPA drags its feet,” the more obvious it becomes that “legal or technical complications” are not the primary reasons for a lackluster prosecution policy.

“There appear to be forces at play that simply don’t want these cases to see the light of day, and the way things are going they won’t see the light of day,” Varney said.

Three interest groups, including Khulumani Support Group, the International Center for Transitional Justice and the Centre for the Study of Violence and Reconciliation, joined with individual victims and their families to sue the NPA over its failure to prosecute apartheid-era crimes. Specifically, the groups challenged the NPA’s proposed policy allowing it to reach non-prosecution agreements with perpetrators in exchange for information that could bring closure to unresolved crimes – and thus help finish some of what is often referred to as the TRC’s “unfinished business.” Despite a favorable court outcome in 2008, including a ruling that invalidated the proposed policy and held that the NPA had a duty to investi-

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gate and prosecute cases when it had sufficient evidence, the ultimate decision to move forward with specific prosecutions remains with the agency – which is why victims’ advocates expect a continuation of the de facto amnesty enjoyed by past human-rights offenders.

Mthunzi Mhaga, a spokesperson for the NPA, provided limited responses to written questions submitted by email, explaining that it is “not the policy of the NPA to comment on ongoing investigations.” Mhaga said only that “cases arising from the conflicts of the past have been referred to the South African Police Force for investigation,” and that the NPA “will decide in respect of each matter whether or not a prosecution should be instituted.”

As time drags on, evidence gets old or disappears and witnesses die, making such cases more difficult – in some situations, impossible – and leaving many victims and their families stuck in apartheid’s tragic past.

“Everyday for the victims, the past is present,” Madlingozi said.

ON A LIST OF PROBLEMS FACING SOUTH AFRICA, the controversy over TRC-related prosecutions may not rank very high. Though regarded as its continent’s strongest economic power, South Africa has an unemployment rate of 25 percent, which climbs to 35 percent when including people who have stopped looking for work. The nation’s income gap between rich and poor has been among the very highest in the world, and about half of its citizens live below the poverty line. The ANC’s economic policies, most notably Black Economic Empowerment, a program aimed at improving the business ownership and employment opportunities for the long-impoverished black majority, are often criticized as having only created relatively small black upper and middle

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classes without bringing the type of broad socio-economic Wagener acknowledged that a non-prosecution policy violates reforms that most Africans had expected after the transition. the legal rights of victims. But he said this infringement is the (It is nevertheless not uncommon in South Africa to hear steep and tragic price that must be paid for the sake of the whites refer to ANC policies as reverse discrimination that country’s future. The only fair and honest way to pursue cases, is causing a brain drain of educated whites.) he said, would be to aggressively pursue all former leaders of South Africa suffers the apartheid regime as well not only from an intracas the liberation movement. table poverty rooted in the “I can tell you our country apartheid system but also an will not survive that,” WaHIV/AIDS epidemic, with gener said. approximately 18 percent Victims’ advocates have of all adults between the more confidence in the naages of 15 and 49 infected, tion’s ability to withstand conand an HIV prevalence rate troversial cases. Madlingozi even higher among pregnant said it was fair to question women. The country has high whether pursuing prosecurates of violent crime and low tions was a good use of public conviction rates for serious resources. But he stressed offenses. While it’s hard to that the importance of doing overstate the importance of so goes far beyond abstract apartheid’s collapse, the daylegal principles. In addition to-day lives of many South to violating the rights of vicAfricans have not much imtims, a failure to prosecute proved since the transition. will “perpetuate a culture In this context, Madlingozi of impunity” that has very was not alone in his criticism practical effects on society, of World Cup preparations: he said. South Africa suffers Many community leaders and not only from violent crime interest groups wrestling but also a political corrupwith South Africa’s myriad tion that has not often faced socio-economic problems criminal prosecution. viewed the construction of “[An ANC] party member new stadiums as offensive will say, ‘Why should they and wasteful. prosecute me for corruption But these conditions might Tshepo Madlingozi and his organization, Khulumani when they didn’t prosecute also create a questionable S u p p o r t G rou p , h av e p u s h e d f o r n e w p ro s e cu t i o n s people for something as seo f ap a r t h e i d - e r a h u m an r i g h t s v i o l at i o n s . environment for prosecutrious as crimes against huing apartheid-era crimes that manity during apartheid?'’’ are 20 years or more old. Should the government focus public Madlingozi said. “Then other members of society will say, resources on past crimes when the present has so many pressing ‘Why should I obey the law when the government can break concerns? Pursuing justice for victims is an important legal the law without consequence?’” and moral principle, but is doing so practical or constructive South Africa is not alone in such dilemmas. Whether prosecutin an emerging country? ing past crimes is an essential step in a nation’s post-conflict Jan Wagener, an attorney in Pretoria who has represented transformation – or a major hindrance to such efforts – is apartheid security forces before the TRC and in criminal pro- a question that faces most nations hoping to emerge from a ceedings, said he was less concerned about the financial costs difficult period in which rule-of-law principles were abused. It of prosecutions than their broader effects on South African is one of the core debates within the field of transitional justice, society as it attempts to move on from its past. which involves the use of justice mechanisms in post-conflict “We are in a democracy that is very fragile,” Wagener said. situations to address serious human rights violations from a “We have a peace that is very fragile. Prosecutions will put us period of armed conflict or oppression. Most organizations right back where we were with racial and political divisions. involved in human rights issues, ranging from advocacy groups I don’t say forget the past, or forget the plight of victims, but to the United Nations, typically encourage nations emerglet’s close the book on the past regarding prosecutions.” ing from conflicts to employ transitional-justice mechanisms

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to account for wrongdoing and foster a rule-of-law culture. of combatants during conflicts, requires parties to prosecute (Varney’s group, the New York-based International Center for or extradite offenders, and the Convention Against Torture Transitional Justice, or ICTJ, is among the most prominent and the Convention Against Genocide impose similar legal groups that promote accountability measures around the globe.) responsibilities. The use of amnesties in many post-conflict “Justice” in this area of human rights scholarship and advocacy settings has undoubtedly run afoul of these principles. is defined broadly, allowing But the end of the Cold for a range of mechanisms War and the growth of the to be considered: They can global human rights moveinclude formal prosecutions ment have contributed to an as well as truth commissions, increased use of prosecutions reparations for victims, proto account for gross human grams for purging political rights violations, which has parties or officials from govhelped shape the analysis of ernments, the use of tradiSouth Africa’s handling of tional reconciliation rituals crimes from the apartheid (most relevant in remote vilera. The United Nations Selages less connected to formal curity Council established court systems) and even the the International Criminal building of museums and meTribunal for Former Yugomorials. As result, a failure to slavia (ICTY) in 1993 and prosecute wrongdoers is not the similarly structured always equated with a failure ICTR (for Rwanda’s genoto provide or promote justice; cide) in 1994. The ICTY and some mechanisms may be ICTR have been followed by more appropriate than otha handful of hybrid domesticers depending on a particular international tribunals – set nation’s history, culture or up in places such as Cambolevel of stability. dia, Sierra Leone and East As is often pointed out in Timor – which are based in the academic and advocacy nations affected by conflicts literature, prosecutions have and staffed by a mix of local not been very common in and international professionpost-conflict settings since als. In addition to these ad the start of the Cold War. hoc tribunals, the internaScholars therefore view the Archbishop Desmond Tutu saw the TRC as a superior tional community, through lack of criminal cases in v e h i c l e f o r t r u t h - se e ki n g b u t al s o v o i ce d s u p p o r t the 1998 Rome Statute treaty, f o r p ro s e c u t i o n s o f n o n - p ar t i ci p an t s .

South Africa as less surpriscreated a permanent Internaing in the broader context of tional Criminal Court (ICC) transitional or international justice. Amnesties – and not that became operational in 2002 and now has a handful of formal criminal proceedings – have accompanied the end cases and investigations. The result has been an emerging of most modern conflicts, whether they were international consensus among legal experts that both treaty and customary or internal in nature. Though the Allied nations established international law require states to punish a core set of crimes, the Nuremberg and Tokyo tribunals to prosecute Axis-power including war crimes, crimes against humanity and genocide. war crimes and aggression after World War II, a prosecutoSouth Africa’s transition in the mid-1990s took place at the rial approach did not take hold in the decades that followed. outset of this trend, which has not been without controversy.

The researcher Louise Mallinder, in Amnesty, Human Rights Stakeholders in ongoing or recently concluded conflicts often and Political Transitions, catalogs 500 amnesties since the contend that criminal cases – whether brought in an interend of World War II in various conflicts around the globe. national tribunal or domestic court – are backwards-looking, Mallinder’s work is one of many to discuss the tension be- disruptive to fragile political and social relationships and thus tween the broad use of amnesties and the legal obligations a poor use of valuable resources that could be spent elsewhere. of nations who are party to international treaties relevant to In this sense, skeptics of prosecutions in South Africa have international humanitarian law. The “grave breaches” provi- echoed arguments made against the UN’s ad hoc tribunals or sion of the Geneva Conventions, which regulate the conduct the ICC’s cases in Uganda and Sudan. They question why a

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pursuit for justice should ever compromise peace or humanitarian efforts. These critics tend to favor justice mechanisms commonly seen as “restorative” – such as truth commissions, reparations and other less punitive measures – over the more retributive trial-justice approach.

Of course, unlike many situations that required a UN tribunal or, more recently, ICC involvement, South Africa was (and remains) stable enough to forge and execute its own transitional justice strategy. There is little doubt that many

provided “full disclosure” of politically motivated crimes to the commission could be granted amnesty. Those who did not would risk criminal prosecution.

Nevertheless, many victims were upset that amnesty would be used at all. The political group Azanian People’s Organisation (AZAPO) and the families of victims, including Steve Biko, an anti-apartheid activist and much-admired founder of the Black Consciousness Movement who was tortured to death in police custody in 1977, filed a lawsuit to invalidate the act’s amnesty provision on the basis that it violated their constitutional rights to the courts. The Constitutional Court (South Africa’s highest) rejected the case in 1996, but did so with great sympathy to the victims and their claims. In the much-analyzed AZAPO ruling, Justice Mahomed DP portrayed the TRC’s limitation on the victims’ constitutional rights – TSHEPO MADLINGOZI as necessary for the “historic bridge” needed to complete a difficult transition, and as a tool necessary members of the ANC had always hoped for Nuremberg-style to uncover the truth that would benefit the greatest number prosecutions of the apartheid regime, whenever it was finally of apartheid-era victims. toppled. The world had condemned apartheid’s systematic use of illegal detentions, torture, murders and other forms of THE TRC MOVED FORWARD IN 1996 AND, AT violence as crimes against humanity, and some of the military’s least at first, so did some high-level prosecutions of suspects operations outside of South Africa likely constituted war crimes. who were already caught up in investigations. An aggressive The regime, however, was not completely overthrown; in- prosecutor in the Transvaal region, Jan D’Oliveira, headed a stead, Mandela and de Klerk negotiated a complex political large investigation into the notorious Vlakplaas death squad settlement that incorporated the interests of the ANC and unit. He successfully prosecuted, among others, former squad the outgoing National Party. The NP would never agree to commander Eugene de Kock, who in 1996 was sentenced to a comprehensive prosecutorial dissection of apartheid’s more than 200 years in prison. De Kock later cooperated with evils, and it was clear that the new government would need prosecutors and implicated colleagues from the security forces. much of the existing administrative structure to avoid a col- A number of these colleagues later applied for amnesty with lapse of services. There was an obvious danger in purging TRC, which showed the positive effect that criminal cases could and criminalizing the well-armed police and security forces. have on the TRC process – especially given that participation The negotiated result was an addendum to the 1993 Interim from apartheid actors was slow in coming. Under the TRC Constitution that called for an amnesty for political crimes of legislation, any defendant implicated in a criminal or civil the apartheid era, which was consistent with indemnity laws case could apply for amnesty before a Sept. 30, 1997, deadline. that had been passed in the years leading up to the transition.

The opposite effect, however, followed the failed case However, the addendum also empowered the forthcoming against former Defense Minister Magnus Malan, who along Parliament to legislatively construct “the mechanisms, criteria with other defense personnel was accused of orchestrating and procedures, including tribunals, if any, through which the 1987 massacre of 13 people active in the anti-apartheid such amnesty will be dealt with.” group United Democratic Front. In 1996, the judge presidIn 1995, the new ANC-controlled Parliament passed the ing over the case, Justice JH Hugo, acquitted Malan and the Promotion of National Unity and Reconciliation Act, which other defendants of all charges. Critics blamed the result on created the TRC in the hopes of establishing “as complete a a lackluster performance by prosecutors and possible judipicture as possible of the nature, causes and extent” of the cial bias. According to a critique of the case co-authored by gross human-rights violations during the apartheid era. The the ICTJ’s Varney in 1997 for the South African Journal of South African process was innovative and, at least initially, Criminal Justice, people in the military – who were watchhighly lauded for incorporating a prosecutorial threat. Most ing the trial to see if they should apply to the TRC’s amnesty truth commissions that had come before, including high- committee – now “had less incentive to do so.” profile examples in Latin American countries, had come with As it turned out, the TRC hearings would prove to be draeither legal or de facto “blanket” amnesties for perpetrators. matic and memorable mostly because of the testimony of the South Africa, by contrast, established a conditional amnesty victims, not because a great many perpetrators stepped forward that set up a truth-for-amnesty exchange – participants who to express remorse or provide new information about their

“Forget the foot soldiers. International law is clear. They must go as high as the evidence goes.”

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crimes. The Malan case also raised the question of whether cases after the failure of the Malan case. According to his the mostly white prosecutorial and judicial ranks left over from book, the government centralized TRC-related cases within apartheid had much interest in pursuing these cases. Varney, a newly structured NPA unit but refused to support the new who at the time served on the civilian board overseeing the unit’s efforts. Bubenzer, who interviewed former and present investigative unit responsible for the case, and his co-author, NPA attorneys, writes: “Whereas the D’Oliveira Unit [which Jeremy Sarkin, observed that the result “strengthened the successfully prosecuted de Kock] had been well-staffed and opinion of many South Africans that the existing system of well-equipped, the resources allotted to post-TRC prosecucriminal justice is deeply flawed because of its heritage as an tions after 1998 were absolutely minimal.” apartheid institution.”

The biggest pending case at the time that eventually The TRC presented its first reached conclusion targeted five volumes in 1998 after takDr. Wouten Basson, who ran ing verbal or written testimony the military’s biological and from about 22,000 victims and chemical weapons program. witnesses. The reports cataHe was acquitted in 2002 of loged a large number of gross many charges, including 229 human rights violations, most murders, after a 30-month of which were committed by trial. As with Malan, interthe apartheid regime. (Many pretations of the case were were also committed by the divided along racial lines, Inkatha Freedom Party, or IFP, and the outcome seemed to a party of Zulu nationalists signify the futility of crimithat worked with the apartnal prosecutions. Archbishop heid state to commit violence Tutu even commented in his against the ANC and its allies.)

“Chairperson’s Forward” to The commission concluded the final TRC volumes in that apartheid was a crime 2003 that the Basson case against humanity and that the showed “how inadequate ANC and the Pan Africanist the criminal justice system Congress, or PAC, which had can be in exposing the full split from the ANC in the late truth” and “how unsuccessful 1950s, were “internationally prosecutions lead to bitterrecognized liberation moveness and frustration within ments” engaged in a just the community.” In his view, struggle. The report added, the TRC was a superior vehicle however, that the armed wings for truth-seeking even though of the parties used certain un“by and large, the white comjust means that constituted munity did not take advantage gross human rights violations. of the … process.”

The final two volumes of the However inconvenient TRC report were eventually criminal cases might be, oppublished in 2003, after the National hero Nelson Mandela called for prosecutions posing them publicly would TRC’s amnesty committee had “ w i t h i n a f i x e d t i m e f r am e ” i n 1 9 9 9 af t e r t h e put the ANC in an awkward p u b l i c at i o n o f t h e i n i t i al T RC re p o r t s. finished reviewing amnesty apposition. The liberation plications. In total, the commovement and its supportmittee granted amnesty to about 15 percent of the roughly 7,100 ers around the world had always contended apartheid was a applicants, most of whom were from anti-apartheid forces. crime against humanity, a conclusion supported by the TRC. Though Mandela in 1999 called for prosecutions to take In addition, South Africa had in 1996 adopted one of the place “within a fixed timeframe” for those who did not seek most progressive and human-rights oriented constitutions or were not granted amnesty through the TRC, these prosecu- in the world, and one that explicitly recognized customary tions did not materialize. Ole Bubenzer, the German author international law. Victims have thus felt well-grounded in of Post-TRC Prosecutions in South Africa, provides a de- contending that international and domestic law required the tailed account of the administrative changes and delays that NPA to prosecute apartheid-era cases. (These positions were characterized the government’s handling of apartheid-era eventually strengthened as a result of the Basson case, which

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the NPA had appealed after losing. In 2005, the Constitutional Court held that apartheid practices constituted both crimes against humanity and war crimes, and that the state was obligated under international law to punish the offenses. Though some charges were reinstated against Basson as result of the appeal, the NPA decided not to retry him, apparently fearing that doing so might constitute double jeopardy.)

In Varney’s view, there should have been an “umbilical cord” between truth-seeking and criminal justice, with the prosecutorial threat serving as the “stick” to entice perpetrators into participating with the TRC. Instead, the NPA held off developing a strategy for apartheid cases until the amnesty committee finished its work, which included the referral of 300 cases for possible prosecution.

In April 2003, three weeks after the publication of the final two TRC volumes, Mandela’s successor, President Thabo Mbeki, gave a speech to Parliament in which he addressed the tension between amnesties and prosecutions. He said that the government could not design another amnesty process because doing so would suspend the “constitutional rights of those who were at the receiving end of gross human rights violations.” He said control of the issue rested with the head of the NPA, who could identify individuals willing to “divulge information” and “enter into arrangements that are standard in the normal execution of justice.” Mbeki appeared to be indicating his preference for plea deals, which would result in lenient sentences and fewer trials – and thus create a middle way that recognized the human-rights concerns of victims without heated and lengthy court proceedings.

In 2005, the NPA announced such a policy in the form of amendments to the Criminal Procedure Act. The policy gave suspects a chance to avoid prosecution by providing a written statement that fully disclosed their politically motivated crimes. In addition to weighing the nature of the disclosure before deciding whether to prosecute, the NPA was to consider whether a prosecution “may contribute, facilitate or undermine our national project of nation-building through transformation,” and whether it may traumatize “victims and conflicts in areas where reconciliation has taken place.” The NPA was required to consult with victims before making its decisions, and these decisions had to be made public. However, unlike the TRC process, the review of evidence was to be done in private, and the NPA was not required to publish the information or testimony given by the offenders.

Victims’ groups were outraged and sued the NPA director and several government officials over the policy in 2007 in the case Nkadimeng and others v. The National Director of Public Prosecutions. The plaintiffs included Khulumani Support Group, the International Center for Transitional Justice and the Centre for the Study of Violence and Reconciliation, as well as the widows of the “Craddock Four” (four libera-

tion activists murdered in 1985), and the sister of Nokuthula Aurelia Simelane, who disappeared after an abduction by the state security forces in 1983. The plaintiffs described the new policy as a repeat of the TRC’s amnesty process that unfairly extended an “effective indemnity” to those who had refused to participate in the TRC. They alleged that the new policy violated international law and domestic constitutional rights to life, dignity and equal protection under the law.

In response, the NPA contended that there was no extension of indemnity because the victims could still bring private prosecutions, which is allowed under South African law, as well as civil cases against the alleged perpetrators. This was a dubious argument given that victims could not realistically afford the costs to investigate such complicated cases. In his December 2008 ruling, Judge MF Legodi of the South Africa

“I don’t say forget the past, or forget the plight of the victims, but let’s close the book on the past regarding prosecutions.”

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– ATTORNEY JAN WAGENER High Court in Pretoria agreed with victims that the new guidelines were “a copy or duplication” of those in the TRC and that the NPA had a duty to investigate and prosecute cases when “there is sufficient evidence.” Legodi concluded that the policy was contrary to the NPA’s “constitutional obligation to ensure that those who are alleged to have committed offences are prosecuted.” He said that the policy was not only unconstitutional but also “a recipe for conflict and absurdity.”

The case was a success, but the legal relief was limited to an invalidation of the policy amendments; prosecutorial discretion remained with the agency. The result has been more inaction by the NPA. Since the TRC finished its work in 2003, the NPA has only reached a resolution in a few cases involving apartheid-era political crimes. The one major case that led to a plea deal targeted Adriaan Vlok, a former Minister of Law and Order, and Johan van der Merwe, a former police commander, as well as three lowerlevel officers involved in the 1989 attempted assassination of Frank Chikane, a UDF member and former head of the South African Council of Churches (they had attempted to kill Chikane by poisoning his underwear). In 2007, Vlok and van der Merwe received 10-year sentences for the assassination attempt, with the remaining defendants receiving five years each. All of the sentences were suspended. Criticism came from multiple sides: Those in the pro-prosecution camp felt that the sentences were much too lenient, especially for Vlok, given that he did not provide information to implicate more

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colleagues or superiors, while Afrikaner groups contended that the failure to bring similarly high-profile cases against ANC leaders was unfair. As with earlier attempts, the Vlok case revealed the political challenges of resolving apartheidera cases in the courts.

Wagener, who defended Vlok and van der Merwe, said he supported the NPA’s attempted policy amendments, which would have induced clients such as his to come forward and provide valuable information without fearing prison sentences.

(The plea deal for his clients, who were charged and set for trial before pleading guilty, was not reached under the NPA’s proposed plan.) Wagner believes that the successful legal challenge by victims’ groups will result in less “unfinished business” being solved through the participation of perpetrators.

“I think we missed a very good opportunity,” he said.

REALISTICALLY, THE NPA DOES NOT HAVE THE resources to prosecute a wide number of apartheid-era cases.

The best-case scenario for victims is a smaller number of symbolic prosecutions of crimes that are typical of the worst human rights offenses. While old cases bring evidentiary challenges in any justice system, advocates believe there is sufficient evidence to move forward in several high-profile cases. One is the matter at issue in the Nkadimeng suit – the disappearance and torture of Simelane, who is presumed dead – a crime for which the TRC rejected amnesty applications by the white policemen involved. Lawyers have continued to press the NPA to pursue this case. However, Varney said the agency told him that the original investigator’s docket has been lost.

Madlingozi believes that excuses over a lack of prosecutorial resources or evidentiary difficulties are “red herrings,” and that the issue boils down to politics. He said the ANC is fearful of apartheid-era cases because they have the power to contradict two powerful “meta-narratives.” One is the narrative of the “Rainbow Nation” that has miraculously moved on from its turbulent past. The other is the narrative of the liberation movement. If the NPA winds up prosecuting ANC members for their human-rights violations, he said, it could “destroy the myth of the pure liberators.” His organization supports “symbolic and meaningful cases that target those with greatest responsibility,” regardless of political affiliation – which he said is the approach consistent with South Africa’s obligations under international law.

“There can’t be scapegoating or the shifting of responsibility,” Madlingozi said. “Forget the foot soldiers. International law is clear. They must go as high as the evidence goes.”

Not surprisingly, the ANC, which in 1980 declared that it would abide by the Geneva Conventions (a rare move for a non-state entity), has always been sensitive to criticism that some of its anti-apartheid campaigns violated international law. Though it set the TRC process in motion, the ANC unsuccessfully sued to block the publication of its reports after learning the group would be cited for gross human rights

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violations, which according to the commission included the killing of suspected dissidents within its own ranks, the use of landmines and other terroristic violence that claimed civilian lives. Party members were outraged that they could somehow be placed on the same footing as the apartheid regime. They contended that they had taken steps to minimize civilian deaths and that some ANC supporters had committed violence in acts not planned by party leadership.

Nevertheless, sympathetic observers have suggested that any NPA unit devoted to TRC-related cases should focus most of its efforts on former actors of the apartheid regime – not the ANC – given that the majority of gross violations were committed by the state. In addition, tens of thousands of anti-apartheid activists were already prosecuted and imprisoned (or detained without trial) in South Africa for their activities before the transition. Under this theory, a focus on apartheid government crimes would bring a corrective balance.

Of course, members of the former security forces disagree.

In Wagener’s view, there are three options: prosecute everyone on both sides, going up the chain of command; prosecute nobody; or prosecute select cases. Unlike Madlingozi, Wagener believes the first approach would tear the country apart. The last option, he said, is unfair because it violates the fundamental concept of equality before the law and is akin to drawing names out of a hat. He concludes that the best course is the second option – prosecute no one – however unfair it may be to the victims.

Even a single case against former apartheid actors is likely to bring retaliation and embarrassment for the ANC. News stories have reported that Wagener’s clients among the former security forces have compiled dossiers against senior ANC members, including Mbeki and current President Jacob Zuma, for alleged human rights violations, which they plan to use if the NPA only brings cases against former apartheid actors. The strategy would be to turn over the dossiers to the NPA and then launch a private prosecution if the agency does not file cases.

“I can’t speak on behalf of my clients, but I would think they would not sit back and let a totally one-sided process develop,” Wagener said. “Common sense tells me that would be a quite normal response.”

Given this possibility, it is likely that victims’ groups will have a hard time getting the NPA to move forward with any cases. Advocates have not threatened their own private prosecutions (as of March 2011), which would be expensive. One strategy that has been discussed is attempting to force the NPA’s hand on a case-by-case basis. With the amendments already invalidated, the relatives of victims of a specific apartheid-era crime could file a suit against the NPA claiming that sufficient evidence existed for the violation and ask the court to order the agency to bring a criminal case. Absent this approach, the Nkadimeng victory may be largely symbolic.

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Victims’ advocates have nevertheless succeeded in pursuing additional litigation involving the government’s handling of apartheid-era crimes. The same plaintiffs’ groups – Khulumani Support Group, the International Center for Transitional Justice and the Centre for the Study of Violence and Reconciliation – along with other members of civil society challenged a pardons process that President Mbeki established in 2007 for individuals who had already been prosecuted and convicted for political crimes related to the apartheid conflict. The new “special dispensation” system covered the apartheid era as well as the first five years of the transition, through May 1999, which witnessed some horrific violent acts, and was open to individuals who did not apply for amnesty with the TRC. A reference group composed of representatives from each political party was established to review pardon applications and make recommendations to the president.

Victims’ groups sued because the system did not allow for their participation, despite the fact that Mbeki had said that the process would be guided by the principles of the TRC – which itself was based heavily on victim participation. The Constitutional Court ruled unanimously in February 2010 in favor of the plaintiffs on the grounds that the president must hear from victims before deciding whether a crime was eligible for pardon.

In October 2010, the government released the names of 149 people recommended for pardon, which included Vlok and van der Merwe from the attempted Chikane assassination but otherwise mostly included individuals convicted of offenses after 1994. As 2010 was drawing to a close, the various advocacy groups (together calling themselves the South African Coalition for Transitional Justice) were busy assisting victims and other interested parties in making submissions to the government over the proposed pardons.

WHATEVER PROSECUTION POLICY THE NPA adopts, most victims will never get their day in court – there are simply too many of them. This is true in South Africa as in most post-conflict states, which is one reason why human rights advocates and scholars have come to suggest a “package” or multifaceted approach to transitional justice, one that incorporates punitive and restorative mechanisms: Trials can uncover important truths, show a commitment to legal principles and hopefully punish some of the most serious offenders, but truth commissions help establish a more comprehensive account of systemic wrongdoing, and reparations along with broader economic reforms provide a more practical benefit by improving the day-to-day lives of survivors.

How has South Africa fared in these restorative goals? The TRC may very well be the most famous transitional-justice effort in history; it is the subject of many popular accounts as well as an incalculable number of scholarly articles and books. By and large, the TRC is viewed favorably around the

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world, but more criticism has emerged about whether it has succeeded in two of its primary goals – promoting reconciliation and producing a satisfying and accurate truth about the apartheid era. These are complicated and emotional topics about which a visitor to South Africa would rightfully feel hesitant to draw conclusions. As Wagener said, the topic is less conducive to a straightforward journalistic interview than to an open-ended conversation over several hours, “preferably with two or three good bottles of wine.”

Nevertheless, it appears as though the TRC may have been more satisfying for people outside South Africa marveling at the “miracle nation” and its resilient citizens’ apparent capacity for forgiveness than for the actual victims themselves. Aside from the amnesty provision, which was upsetting at the outset, Madlingozi said many victims felt forced to forgive despite the fact that most perpetrators did not apply for amnesty or express remorse. The lack of participation from offenders also meant that most victims or their relatives did not learn important new details of the crimes. Madlingozi added that the TRC’s definition of “victim” was overly technical and legalistic – someone who suffered a gross human rights violation and made a statement about it, which totaled about 20,000 people, a fraction of apartheid’s actual victims. These were the only people entitled to reparation payments of 30,000 RAND (worth about $4,250 in today’s currency), which were made in 2004 in addition to smaller interim payments made earlier to those most in need. Khulumani Support Group’s membership of victims of gross human rights violations alone exceeds 58,000, and of course the number of South Africans victimized by apartheid’s oppression includes many more millions.

Indeed, one of the most common critiques of the TRC is its treatment of the apartheid system as a whole. Under the legislation that created it, the commission was limited to investigating conduct that was illegal under apartheid – gross human rights violations such as murders, disappearances, torture – not the apartheid structure itself, in which segregation, forced land removals, job discrimination and other tools of oppression were legal. The 2008 book Truth and Reconciliation in South Africa: Did the TRC Deliver?, draws some negative conclusions about this limitation. The book’s editors, Hugo van der Merwe and Audrey Chapman, conclude in the final chapter that the focus on individual crimes led the TRC to focus on the conduct of foot soldiers tasked with carrying out the actual violence rather than senior leaders and planners (few of whom were subpoenaed to appear before the TRC) or the civilian white minority who benefited from apartheid’s discrimination. In their view, by focusing on specific acts and perpetrators without going up the chain of command, the TRC failed to achieve “an unequivocal indictment of the apartheid system” as a means of socio-economic oppression. This likely provided a weaker foundation for future efforts to hold senior figures accountable and to interpret reparations more broadly

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as the need to redistribute wealth on a greater scale.

In fairness, the TRC’s recommendations on reparations were somewhat broader – more generous payments and community-based programs funded in part by a corporate tax – than what the government chose to implement. Also, the TRC did hold hearings and issue a report, Volume 4, dedicated to the role that key societal institutions played in apartheid, including the business sector. But the sad fact remains that most victims of apartheid continue to struggle in their day-to-

present government led by Zuma, however, has come out in support of the case. Madlingozi said his organization is motivated less by economic damages than by the principle of holding corporations accountable for supporting apartheid.

It is difficult to assess whether a more satisfying truth commission or reparations policy (or other economic reforms) would have lessened the demand for prosecutions. This is a tricky analysis in South Africa as in any post-conflict setting.

Some victims will want criminal accountability regardless of the restorative mechanisms employed; some will refuse to relive their experiences in court regardless of the alternative truthseeking mechanisms available.

The preference varies not only by nation and community but from person to person. And advocacy groups will continue to debate whether criminal trials threaten reconciliation or whether they are a crucial step to building a stable society based on the rule of law.

But the tension between truthseeking and criminal accountability is heightened in South Africa because the TRC was structured around the conditional amnesty approach that traded immunity for truth. By law, amnesty could not be granted to those who did A m e r i c a n a t t o r n e y M i c h a e l H a u s f e l d i s re p re s e n t i n g a p a r t h e i d - e r a not participate. Some critics thus v i c t i m s i n N e w Yo r k f e d e r a l c o u r t a g a i n s t c o r p o r a t i o n s t h a t a l l e g e d l y see the government’s failure to assisted the apartheid state. prosecute non-participants as a day lives while the beneficiaries of apartheid continue to lead serious threat to the legacy of the TRC. This is why suplives of comfort. Madlingozi said these shortcomings are not porters of prosecutions have come to include individuals too surprising given that the entire transitional framework who believed in the commission’s perceived superiority over of the mid-1990s, which included the TRC, was a negotiated criminal trials in accounting for the past, including Tutu, who bargain among political elites who have fared well in the new noted in a 2004 interview that the TRC received its praise South Africa. worldwide “precisely because it avoided a blanket amnesty.”

“The result is that there has been political reconciliation, The additional consequences of a non-prosecution policy but no social reconciliation,” he said. are hard to predict. Many observers have echoed Madlingozi For its part, Khulumani Support Group is also seeking by suggesting that South Africa’s culture of violent crime some measure of justice outside of South Africa. The group and political corruption are somehow related to a lack of a has pushed a lawsuit by victims and their relatives against criminal accountability for apartheid-era crimes. Madlingozi defendant corporations, including General Motors, Ford, also put forth a more tragic impact on the psychology of the Daimler, IBM and Rheinmettall, in U.S. federal court in citizenry: That those who were treated as less than human New York for allegedly providing the tools and means that during apartheid will continue to feel that the state does not allowed the apartheid regime to carry out is its many forms value their lives and the lives of their missing or dead family of oppression. In that case, Khulumani v. Barclays National members. And what will later generations of whites conclude Bank, which remains pending, Khulumani is represented by about apartheid if there is a dearth of high-profile cases on Michael Hausfeld, a prominent antitrust and human-rights the books for the system’s many crimes against humanity? litigator based in Washington, DC. Mbeki, who instituted the “Maybe people will eventually start to think, ‘You know, 2004 reparation payments, was very critical of the suit. The maybe apartheid really wasn’t that bad.’” ■

PHOTO BY: HUGH WILLIAMS

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ABOUT THE AUTHOR

JOHN RYAN

JOHN IS A CO-FOUNDER AND THE NEW YORKBASED EDITOR-IN-CHIEF OF LAWDRAGON, where he oversees all online and magazine content. He is an award-winning journalist with fifteen years of experience in print, new media and film covering complex matters related to the U.S. justice system and global human rights issues. Previously, he was a reporter at the Los Angeles Daily Journal, where he was a three-time L.A. Press Club “Print Journalist of the Year” Finalist and twice won the award for “Best Magazine Feature,” among other distinctions. While running Lawdragon he designed his own M.A. program in human rights studies and transitional justice at New York University’s Gallatin school, where his field research in post-conflict societies became the basis for the articles in this publication.

ABOUT LAWDRAGON Lawdragon is a fast-growing new media company that offers free legal news and features as well as a searchable database of legal professionals that includes online profiles of attorneys and firms. Since 2005, Lawdragon has released its annual “Lawdragon 500 Leading Lawyers in America” guide, the most elite distinction in the profession, which is featured in an annual print magazine. Lawdragon’s website provides daily news and weekly features, including the “Lawyer Limelight,” a popular Q&A series with prominent lawyers from around the nation. In 2014, Lawdragon launched "the law schools project" to provide better information on legal education for consumers.

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