IMPUNITY, TRUTH, JUSTICE & RECONCILIATION
Beyond Impunity, by Geneviève JACQUES, Geneva, WCC 2004
Introduction to the 2nd edition by Guillermo Kerber
The issues of impunity, truth, memory, justice, forgiveness and reconciliation have continued to play important roles in the international debate over post-conflict situations, since the first edition of this book appeared in 2000. This book by Geneviève Jacques, in its three editions (English, French and Spanish) has become an important and widely used tool for reflection and action among Christians, churches, groups, communities and organizations in such different context as Peru, Sierra Leone, East Timor, Democratic Republic of Congo and Lebanon, among others. This brief introduction to the new English edition of the book is intended to show some of the developments in recent years.
In the last four years new challenges have appeared, especially following September 11, 2001 and its immediate aftermath. The events of that time brought a new age in international relations at the dawn of a new century. The terrorist attacks to the US, followed by the war against Afghanistan, the war in Iraq in 2003 and the terrorist attack in Madrid in March 2004, indicate a new international framework and a new pattern.
In this scenario, a major step in international law was made with the ratification of the International Criminal Court (ICC) by the necessary 60 states in April 2002 and its entry into force in July 2002. Crimes under the jurisdiction of the ICC such as genocide, crimes against humanity and war crimes1 are core concerns of this book.
Churches in different parts of the world and the World Council of Churches (WCC) had specifically been advocating for the ICC. Two different advocacy groups have become priorities for churches and religious organizations in this work: the Faith and Ethics Caucus for the ICC (FECICC), in which the WCC is a founder member and which has been an important actor in regard to the United States given the particular role that the US has played in relationship to the ICC2, and the recently created Centre for Justice and Reconciliation (CJR) based in The Hague, with its strong commitment to working toward reconciliation with victims of cases brought to the ICC3.
Besides the establishment of the ICC, other developments have occurred since this book was first published. At the UN level, the 2003 UN Commission on Human rights resolution on Impunity requested the United Nations “to commission an independent study… on best practices, including recommendations, to assist States in strengthening their domestic capacity to combat all aspects of impunity”4.
The process of preparation of this study, in which the WCC together with other NGOs participated, concluded with a report prepared by Prof. Diane Orentlicher5. This report, on the one hand, reaffirms the importance of the so-called Joinet Report and principles from 19976, stating that “the principles have already had a profound impact on efforts to combat impunity”. On the other hand, it records different ways of implementation of the set of principles Joinet proposed, in an amazing collection of jurisprudence and actions taken in different countries. Joinet grouped his set of 42 principles in three major sections which summarize, according to his perspective, victims’ legal rights:
I. The victims’ right to know;
II. The victims’ right to justice;
III. The victims’ right to reparations.
These three sections guided Prof. Orentlicher’s report as well.
Despite the difficulties in adoption of the Joinet principles by the UN Commission on Human Rights and the General Assembly in the last seven years, the report also shows that major steps have been taken in different parts of the world and may be seen as “best practices to combat impunity”. Geneviève Jacques’ reflections on the Joinet report and the relationships between international standards, criminal law and the ethical dimension of justice provide vital insights into these dynamics.7
Another instrument which Geneviève Jacques has clearly identified has continued to expand as a powerful tool in addressing impunity and seeking reconciliation. Truth Commissions, now Truth and Reconciliation Commissions (TRCs), almost a brand name, have spread and adapted to different contexts in the last four years. Three dimensions have become essential to such commissions in countries such as Peru, Sierra Leone or East Timor: truth seeking, reconciliation building and a series of recommendations to grant the pursuit of lasting peace with justice8. In the process TRCs have become not so much an alternative but a complement to criminal justice, the work of the TRC and the Special Court in Sierra Leone being an important case in point.9
The theoretical background of TRCs, restorative justice, has also been expanding in the period, shifting from the success of the implementation of a range of practices at the community level (especially in relation to juvenile justice and family issues) to the national level, in relationship to gross human rights violations10. The questions of reconciliation and forgiveness, inherent to Restorative Justice methodologies, also has profound implications for post-conflict situations.11
One of the achievements of this book is that it intimately relates impunity, truth, justice and reconciliation, a prerequisite for any holistic approach to the complex outcomes of violent conflict situations. And as Geneviève Jacques states, her intention was to “describe some of the challenges, facing Christians and churches in this area, rather than offering solutions “12. Christians and churches have continued to face these challenges and to struggle for peace with justice in this period. Their involvement in most TRCs and their strong support of the establishment of the ICC are clear examples of these commitments. The launch of the Decade to Overcome Violence. Churches Seeking Reconciliation and Peace, in 2001, highlighted even more strongly the need in this area for a prophetic role to be played by the churches. The World Council of Churches has continued to support, encourage and train Christians, churches and peace-builders in different environments. In the last four years, the inter-religious dimension has also become central to this work. In the present time, with new challenges and instruments, Geneviève Jacques’ book is more important than ever for the churches and the world.
1 Cf. Article 5 of the Rome Statute. A full version of the Rome statute can be seen at: http://www.un.org/law/icc/statute/romefra.htm , while the Court’s website is: http://www.icc-cpi.int
2 As an expression of its unilateral behaviour regarding international standards, the United States of America, under the Bush administration, withdrew from the ICC in May 2002, which former US President Bill Clinton had signed in December 2000. Besides its rejection, the US has developed a full-scale multi-pronged campaign against the ICC, claiming that the ICC may initiate politically-motivated prosecutions against US nationals, through the Bilateral Immunity Agreements (BIAs) and the American Servicemembers’ Protection Act (ASPA). As of August 15, 2004, 37 states parties of the ICC have signed these agreements with the US. Geneviève Jacques had already stated the rejection of the ICC by the US government in the paragraphs on the ICC (Cf. Infra p. 41-43)
3 See the FECICC website at: http://www.amicc.org/faith.html and the CJR’s 2003 Expert’s meeting report at: http://www.amicc.org/docs/ReportexpmeetingCJRSept2003.pdf
4 Commission on Human Rights Resolution 2003/72 § 16.
5 Presented to the UN Commission on Human Rights under the following reference: E/CN.4/2004/88.
6 See the whole report Question of the impunity of the perpetrators of human rights violations (civil and political). Revised final report by Mr. Joinet. E/CN.4/Sub.w/1997/20/Rev.1.
7 See infra specially p. 7ff; 34 ff.
8 See for instance East Timor’s TRC’s mandate:
“1. Truth Seeking: The Commission will seek the truth regarding human rights violations in East Timor within the context of the political conflicts between 25 April 1974 and 25 October 1999. The Commission will establish a truth-telling mechanism for victims and perpetrators to describe, acknowledge, and record human rights abuses of the past.
2. Community Reconciliation: The Commission will facilitate community reconciliation by dealing with past cases of lesser crimes such as looting, burning and minor assault. In each case, a panel comprised of a Regional Commissioner and local community leaders will mediate between victims and perpetrators to reach agreement on an act of reconciliation to be carried out by the perpetrator.
3. Recommendations to Government: The Commission will report on its findings and make recommendations to the government for further action on reconciliation and the promotion of human rights.”
9 See for instance WIERDA,M., HAYNER,P. AND VAN ZYL,P. Exploring the relationship between the Special Court and the Truth and Reconciliation Commission of Sierra Leone, International Center for Transitional Justice, June 2002. http://www.ictj.org/downloads/TRCSpecialCourt.pdf
10 As an effort to reflect on these practices in relation to TRCs see KERBER, G., Overcoming violence and pursuing justice. An introduction to Restorative Justice procedures, The Ecumenical Review, April 2003.
11 See for instance the 2003 International IDEA handbook on Reconciliation after violent conflict http://www.idea.int/conflict/reconciliation/index.cfm
12 Cf. Infra p. 54.