**

This debate aims to gather the ongoing discussions about the limits and possibilities of international justice ahead of the Review Conference of the Rome Statute scheduled for June 2010 . The essays in this collection include views from scholars analyzing the clarity of different provisions of the Rome Statute, practitioners interrogating the contribution of prosecutions to stability and its balance with local reconciliation efforts, and activists advocating for more support for transitional justice measures in general and the International Criminal Court (ICC) in particular.

Professor Larry May, a scholar who has written widely on war crimes, launches the discussion by highlighting fundamental aspects of the Rome Statute that are still in need of clarification. He points out that it remains unclear whether the two elements of war crimes – systematicity and widespreadness – have the same requirement in terms of “state or organizational policy”. Responding to the recent request for further information to demonstrate state policy by the judges of the Pre- Trial Chamber (PTC) in the Kenyan case, May suggests that systematicity may need more evidence of state policy more widespreadness.  He explains:

It might be that the State policy requirement of crimes against humanity that is associated with widespreadness is considerably easier to meet than that for systematicity. If there is police involvement or the involvement of various politicians, this might be sufficient in and of itself to establish the weak State involvement associated with widespread attacks, whereas such involvement by police or politicians would have to be linked to a specific policy of the State to satisfy the more stringent State involvement associated with systematic attacks.  Yet, the Pre-Trial Chamber II Decision seems not to accept the weaker State policy requirement since it appears that evidence supporting this has already been offered by the Prosecutor and acknowledged but rejected as insufficient.

In discussing the issues likely to pre-occupy the PTC judges as they decide how to respond to the Prosecutor’s proprio motu request in Kenya, Lionel Nichols adds a different perspective to this discussion on the state policy requirement for war crimes. In his view, the state policy requirement is linked with the identities of alleged perpetrators. This, he suggests, may be why the judges requested from the Prosecutor a list of alleged perpetrators. He also highlights other issues of concern to PTC judges, including admissibility (whether the truth commission and ongoing discussions about a special tribunal can be seen as constituting complementarity, and whether there is sufficient gravity), and the interests of justice (whether ICC investigations would destabilize the country). Similar to May, he sees the Kenyan case as one that will help illuminate critical sections of the Rome Statute.

Okechukwu Oko’s essay is less concerned with the contribution of ICC cases to the development of international law. Rather, his focus is on the broader contribution of prosecutions – of which the ICC is the most visible form – to what he calls “social equilibrium”. His essay expresses concern about the limits of prosecutions: if root causes of human rights violations include ethnic distrust and economic marginalization of communities, prosecutions do not address these issues. Violence in Africa is “considerably different,” he argues. Violence does not result from “deviant behavior of citizens but from…ethnic distrust…The traditional criminal process fails to address the broad range of ways in which situational cultural pressures exacerbate violence.” He concludes that, with this core difference between Africa and elsewhere, “concerns for accountability offer no license for the international community to arrogate to itself the right to determine what is best for Africa.”

Comfort Ero disagrees with this “African exceptionalism” that Oko outlines. In a critical analysis of the responses of African leaders to calls for accountability, she criticizes their view that Africa has its “own brand of justice that espouses reconciliation over sanctions or punishment.” This is inaccurate, she argues. “It is … discriminatory to claim that African victims do not deserve to seek criminal accountability for serious international crimes with standing equal to that of other victims of grave abuse.” Ero further characterizes the relationship between the ICC and African states as “awkward” and one that must be disaggregated rather than presented as monolithic.  The overall tension she sees is between the need to prevent future Rwandas and the fact that such preventive measures seem to originate externally to African states. In this context, the upcoming ICC Review Conference provides an opportunity to address these tensions.

Valentina Torricelli also sees the review conference as an opportunity for Africa to re-engage with the ICC. In her view, suggestions such as giving the African Court of Justice and Human Rights jurisdiction over international crimes would result in a “huge cost to the African Union, distract the African Court from an effective pursuit of its mandate , and duplicate the work of the ICC”. Instead, she urges Africa to rediscover its earlier enthusiasm for the Court and actively support it. She further warns against other efforts to seek alternative avenues to the Rome system:

The Rome Statute is not perfect. It represents a delicate compromise, balancing many unrelated articles and provisions. However, at this early stage in the ICC’s history, any attempt to make substantive changes would be very risky and could destabilize the architecture designed in Rome. We should therefore reject the recent submission by South Africa on behalf of the AU to amend Article 16 of the Rome Statute in order to allow the UN General Assembly to defer cases for one year when the Security Council had failed to take such decision within a specified deadline. Any proposal of this nature sense must be opposed as it would allow the General Assembly to stand in the way of international justice.

Instead, she suggests, African states should embark on constructive engagements such as using the Review Conference as an opportunity to conduct consultations towards a regional mechanism for extradition and mutual legal assistance for international crimes.

Emmanuel Saffa Abdulai echoes Torricelli that African states should support the ICC, in the spirit of the Constitutive Act of the African Union. He sees African leaders as having reneged on their promises to combat impunity, and in the case of Sudan, “leaders refer to ‘negotiations’ merely to buy themselves time…they hope the ICC net will be broken, and they will thwart its wide sweep that might catch them when they suppress their own people and govern outside the dictates of the rule of law.” If the strongest opposition of African leaders to the ICC is a thinly veiled opposition to the role of the Security Council in international justice, he urges these states to focus on the Ezulwini Consensus, which called for a more representative expansion of the Security Council.  This recommendation that African states focus on Security Council reform starts to touch a problem that will hopefully be addressed in future essays: that the anti-ICC mobilization, to the extent there is one, may be a result of a displaced frustration about the unreformed state of institutions of global governance.[1]

Less optimistic about all these international processes is Andrew Iliff, who addresses the tension between  international justice and local justice through the exploration of a grassroots reconciliation program in Zimbabwe. In a context where the prosecution of Mugabe and other senior officials responsible for human rights violations may not be possible, what are actors to do: hold out for the promise of a perfect justice, or engage in processes to encourage co-existence? His view supports the latter: “transitional justice advocates should bracket international crimes until more propitious circumstances prevail”. Through describing the work of community initiative called ‘Tree of Life’, he suggests that transitional justice advocates should reorient their focus away from state-led processes to other localized measures, lest opportunities for healing be missed.

These essays constitute the beginning of a vibrant debate over the coming months. This forum will welcome multi-disciplinary perspectives that seek to draw attention to opportunities and challenges in addressing human rights violations in Africa, including contributions that may  seek to question whether it is useful at all to single out Africa in this discussion of international justice. We invite you to contribute or comment in accordance to the following guidelines:

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( For a PDF file of this essay, please click here)

Zimbabwe’s acute need for justice and reconciliation highlights a longstanding tension in transitional justice practice. The need for transitional justice processes in Zimbabwe has been clear since at least 2003, when Zimbabwean civil society articulated an ambitious set of transitional justice objectives in the Johannesburg Symposium.[1] Yet nearly seven years later, this agenda remains in limbo, stranded by the failure to find a political solution that might loosen the grip of perpetrators on the reins of power.

Practitioners and theorists assume that transitional justice cannot proceed until the individuals most responsible for rights violations cease control of crucial state functions, including the police, military and judiciary. This assumption has the ring of common sense – you cannot expect the chief of police to cooperate in his own arrest and prosecution.

Yet this singular focus by international observers on international crimes and concomitant national or international accountability can be to the detriment of more modest, local strategies that focus on community level reconciliation, dialogue and accountability. This essay outlines emerging grassroots reconciliation strategies in Zimbabwe, which suggest that in situations of ongoing violations in which international criminal accountability for gross violations remains out of reach, transitional justice advocates should bracket international crimes until more propitious circumstances prevail. In the meantime, advocates should promote non-state, locally developed programs to promote community healing and reconciliation, which in turn lower the stakes of future political contests.

Background: The Zimbabwean Crisis

The contemporary Zimbabwean crisis is broadly characterized by a violent campaign to retain political power on the part of the Zimbabwe African National Union (Patriotic Front) (ZANU [PF]). While the immediate crisis comes in the face of widespread popular dissatisfaction with thirty years of repressive single party rule, economic collapse, and a potent electoral challenge from the Movement for Democratic Change (MDC), the roots of the crisis, however, can be traced back to the liberation struggle of the 1970s and still further back. Since 2000, widespread political violence has marked each election; following parliamentary elections in 2005, the government launched the Murambatsvina campaign of evictions that affected 700,000 people.

In September 2008, ZANU (PF) and the MDC signed the Global Political Agreement (GPA), giving birth to a Government of National Unity (GNU) that nominally shared power between the parties. Nonetheless, the record of the GNU to date indicates that ZANU (PF) has retained power in the all-important areas of security and law enforcement, making a bare minimum of concessions to the MDC.

In this context there are serious obstacles to many transitional justice objectives. For example, there will be no prosecutions of ZANU (PF)-affiliated perpetrators of political crimes as long as both the senior police leadership and the Attorney General owe their allegiance to that same party. Similar concerns are raised about truth-telling, reparations or lustration. In a climate of ongoing political violence, participants in any such process must fear reprisals, and there is concern that powerful perpetrators may dig their heels in or even instigate further violence in an effort to retain the protections and privileges of power.

But doing nothing – optimistically awaiting a successful political settlement – is indefensible in light of the ongoing violence and deepening trauma. Southern African Development Community (SADC) leaders have shown no stomach for enforcing political reforms in the country, making only token gestures at relaxing President Mugabe’s iron grip on power. Political violence abated somewhat in 2009 following the GPA, but it could quickly return to epidemic levels, particularly when elections are called – probably in 2011, though Mugabe may call a snap election sooner. There have been reports that ZANU (PF) youth militias have been redeployed in rural Zimbabwe to influence the outcome of the constitutional review process and the election.[2] Meanwhile, the GNU has emboldened some MDC supporters to exact revenge against their erstwhile abusers.[3] One third of Zimbabweans have experienced politically motivated threats or intimidation and 12% have experienced politically motivated assault.[4] Unaddressed, the mental health consequences of this trauma worsen over time.[5] Waiting for political parties to take the lead in reconciliation is unrealistic.

The persistence of the Zimbabwean conflict in the face of the weak political settlement presents severe obstacles to transitional justice programs. However, the urgent need for transitional justice is underscored by the extent of trauma among Zimbabwean civilians, and the potential for the perpetuation of this trauma through revenge crimes, the increased political polarization of youth, and the entrenchment of violent political engagement as a norm.

Transitional Justice During Conflict

Faced with this tension, and despite little public action by international NGOs, Zimbabweans have sought novel paths to reconciliation. Both civil society and the compromised state are shaping transitional justice concepts. The GNU has created the Organ on National Healing, Reconciliation and Integration,[6] although to date it has maintained a low profile while undertaking a series of consultative meetings with traditional and civic leaders. Its prospects of becoming a powerful advocate for transitional justice, however, are hampered by its location within the office of the President, its limited budget and extremely cautious work, and the recent promotion of ZANU (PF) Minister John Nkomo from the Organ to the office of the Vice President. If Zimbabweans invest their hopes for justice in a body that remains co-opted by ZANU (PF), they may become frustrated and disenchanted with the entire transitional justice project.

Grassroots Transitional Justice

With little prospect of centralized state support for effective justice or reconciliation initiatives, Zimbabweans have seized on decentralized modes of transitional justice. A diverse array of civic, church, traditional, business and community bodies have taken advantage of the slight easing of the security and political environment afforded by the GNU to begin reconciliation programs, adopting a politically neutral community-based approach.

The grassroots programs, strikingly similar in structure, have modest goals. They eschew attempts at reparation or punishment in favor of restoring a modicum of tolerance and dialogue in divided communities. The programs provide a forum for participants to speak out in small groups of their peers about their experience of trauma, including political violence. Critically, these organizations engage both perpetrators and victims, recognizing the complex intermingling of roles in which militia members may have been beaten and intimidated into attacking others and ZANU (PF) supporters may have been the victims of revenge crimes. Many Zimbabweans have experiences of abuse dating from the liberation and Gukurahundi periods.[7] Political operatives from outside the community are often the instigators of political violence that leaves communities fragmented long after they themselves leave.

MDC Minister Sekai Holland of the Organ on National Healing has begun advocating community-based reconciliation programs mediated by traditional leaders, citing a cultural model dubbed kusvitisana fodya, under which perpetrators and victims would discuss and resolve their grievances before sharing tobacco in a sign of their reconciliation. This model is problematic, as many traditional leaders are viewed as compromised by their complicity in political violence. Given their historical stature, however, traditional leaders are a necessary component of the reconciliation process.

Tree of Life

The work of the Tree of Life (ToL) organization illustrates the potential for innovative community-based reconciliation processes tailored to the Zimbabwe crisis. ToL began conducting workshops with Zimbabwean victims of political violence in South Africa in 2003, and has since conducted workshops across Zimbabwe, focusing on hotspots of political conflict in both urban and rural areas. ToL workshops take place over two to three days, consisting of a series of circles (dare in Shona) that are organized around the analogy between individuals in a community and trees in a forest. Participants discuss their roots (ancestry), trunk (childhood), leaves (important features) and fruit (family and future plans), and explore the benefits of diversity and collective action.

Working with one facilitator to four participants, the dare agrees at the outset on rules of conduct, including the use of a “talking piece.”[8] Participants, who are typically selected by community bodies rather than ToL and may include both perpetrators and survivors, share meals and where possible share accommodations. The workshop includes discussion contrasting hierarchical and cooperative forms of power and, crucially, a “trauma circle” in which participants are invited to describe their experiences. Contributions often include a wide range of experiences including familial traumas and historical grievances as well as political violence, reducing the political stakes of the workshop. ToL has successfully maintained a neutral political position in the eyes of ZANU (PF) by framing its work as “community healing and empowerment,” disavowing any justice agenda. Indeed, in some districts, government District Health Officers have endorsed ToL workshops.

ToL provides effective and cost-efficient means of beginning the process of community reconciliation. ToL has leveraged its minimal staff, extending its range by forming a broad network of partner organizations that run the gamut from religious to business associations. ToL trains members of these partner organizations to conduct workshops alongside ToL facilitators, increasing ToL’s reach and legitimacy within communities, and allowing organizations to adapt ToL strategies to fit their constituencies. Facilitated by Zimbabwean survivors of political violence, ToL workshops do not require clinically trained counselors, and reach more survivors than individual counseling. The workshops outcomes deserve further documentation, but research to date indicates their efficacy in reducing self-reported levels of trauma, and participants frequently describe a renewal of community ties and trust attributed to ToL.[9] At the close of a workshop I observed, attended mostly by ZANU (PF) members on the site of a prior militia base, participants alluded to their complicity in earlier violence and foreswore future participation. Other workshops have included direct exchanges between perpetrators and survivors, acknowledging the harm done to the community.

Conclusion

The grassroots approach epitomized by ToL has manifest limitations, and cannot accomplish the full range of transitional justice goals, most importantly individual accountability for violations. Such community-based approaches must at some point be supplemented by some combination of prosecutions, reparations and other accountability strategies backed by a rights-observing successor regime. But in the absence of the necessary political transition, the unavailability of centralized justice processes should not preclude grassroots reconciliation initiatives. The emerging Zimbabwean experience indicates that such initiatives can be successful, and this success may in turn contribute to community solidarity, reducing the scope for future violence instigated by outsiders during elections and other moments of political contestation.

The preceding discussion also highlights a deficiency in much contemporary transitional justice debate, which views the functions of the centralized state as the sine qua non of transitional justice processes. International NGOs are still influenced by the paradigmatic model of the South African Truth and Reconciliation Commission and its institutional cousins, and therefore seek to collaborate with successor governments and national-level civic organizations to establish high-profile national-level processes, sometimes at the expense of smaller, grassroots initiatives. Transitional justice practitioners should reexamine their priorities, particularly in protracted “complex emergencies” akin to the Zimbabwean crisis, where a political solution may come too late for many survivors.

A renewed focus on grassroots initiatives will allow for greater engagement by victims and survivors in transitional justice, increasing its integrity and local legitimacy. The reconciliation initiatives described above may only be the very beginning of a successful transitional justice program, but they substantially increase the ability of survivors to set the agenda for subsequent centralized processes, if eventually established.

*Andrew Iliff is pursuing a joint degree in law and African Studies at Yale University. He has worked on transitional justice in the southern African region with Human Rights Watch, the International Center for Transitional Justice, Idasa and the Research and Advocacy Unit (Zimbabwe).

( For a PDF file of this essay, please click here)

[2] http://www.timesonline.co.uk/tol/news/world/africa/article6896171.ece; http://allafrica.com/stories/200907201640.html.

[3] Institute for War and Peace Reporting, MDC Supporters Take Revenge, 25 February 2009, ZCR No. 182, available at: http://www.unhcr.org/refworld/docid/49a79dff1a.html [accessed 7 February 2010].

[4] Freedom House/MPOI, “Public Attitudes Towards Transition in Zimbabwe,” 11 December 2009.

[5] “Acute versus Chronic effects of Organised Violence and Torture: Comparing the Victims in Contemporary Zimbabwe with the Survivors of the Liberation War,” Harare: Research and Advocacy Unit (RAU), February 2010.

[6] Article 7.1.c of the Global Political Agreement provides: “The Parties hereby agree that the new Government shall give consideration to the setting up of a mechanism to properly advise on what measures might be necessary and practicable to achieve national healing, cohesion and unity in respect of victims of pre and post independence political conflicts”.

[7] “Gukurahundi” refers to a period of military repression in the Matabeleland region during the 1980s.

[8] A “talking piece” is an object held by the current speaker in a circle, requiring that other participants listen without interruption until the object is replaced by the speaker in the centre of the circle.

[9] On follow-up, one third of participants had reduced self-reported trauma levels to below clinical levels; see “The Tree of Life: a community approach to empowering and healing survivors of torture in Zimbabwe,” Tony Reeler et al, Torture, vol. 19 no. 3, 2009. See also “A Research Note on the Effectiveness of the Tree of Life: Report prepared for the Tree of Life by Tony Reeler, Research and Advocacy Unit,” Harare: Research and Advocacy Unit, 2009.