By Dawit Wolde Giorgis
There cannot be stability and peace without justice. The objective of any national dialogue should be the transition to peace and stability and the only tool to get to this point is through justice. There must be justice and no impunity for those who have introduced an ideology of hate, responsible for the massacre of hundreds of thousands, and looted the country. Perpetrators of these crimes should be brought before criminal trials and, if found guilty, punished. Such trials and convictions (retribution) typically focus on prosecuting all those complicit in committing the said crimes while transitional and restorative justice focus on the victims’ needs, the root causes of the conflict, and the possibility of reintegrating the perpetrators into society and rehabilitating them. The concept of such justice is to prevent the crimes from happening again, to punish offenders and to rehabilitate some and educate people on the wisdom of peaceful co-existence.
The ultimate objectives include: promoting the value of legality or the rule of law, and bringing about closure. If victims and criminals agree, they can initiate a dialogue to find the whole truth and begin reconciliation. But to create a country at peace with itself and move forward in unity and harmony, justice must precede every other option. There cannot be a country without the rule of law. No citizen can be forced to love and to reconcile. These are personal choices. But the rule of law protects people from being harmed by those who don’t believe in love forgiveness and reconciliation.
“Forgiveness is an internal process where you work through the hurt, gain an understanding of what happened, rebuild a sense of safety, and let go of the grudge (more on how to forgive here. The offending party is not necessarily a part of this process.”1
On the other hand, reconciliation is an interpersonal process where dialogue with the offender about what happened, exchanging stories, expressing the hurt, listening to the remorse, and beginning to reestablish trust. It is a much more complicated process that includes but moves beyond forgiveness. ‘Forgiveness is solo, reconciliation is a joint venture.’ As Said Smedes once noted: “It takes one person to forgive, it takes two people to be reunited.”
You can forgive someone who is dead. Or someone you never see anymore. Or someone who has no intention of apologizing. So apologies aren’t necessary, but when available, they do help.”2
People are ruled by law and not by people’s wishes. The concept of a legitimate rule of law rests on the idea of a community governing itself under the law. In countries under conflict and striving and wishing for major political changes, like Ethiopia where a legitimate rule of law is not fully developed, the state has no legitimacy to make the necessary changes because it is part and parcel of the problem. Though states have a duty to prosecute human rights violations, if they are not able or willing to do so, the task of convening and overseeing a national dialogue and the task of ensuring the primacy of universal human rights should be handed over to neutral entities complemented by international law: the ICC being one.
“An International Criminal Court (the ICC ) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute” (2002)
Examples of countries that went through this include: Rwanda, DRC, former Yugoslavia, Sudan, Kenya, Liberia, andMyanmar.
Notably, the gold standard for how a divided society with a violent past might work through its past and present and move forward was set 25 years ago by South Africa’s Truth and Reconciliation Commission and then in Rwanda and Liberia, inspiring other similar efforts around the world. These countries have learned over time that working through a complicated past takes time.However, they opened a way to talk about the individual and systemic wrongs committed in their respective countries.
The South African Truth and Reconciliation Commission (TRC) was a result of a process and what can be called a gradual democratization or negotiated settlement. Previous leaders played roles in guaranteeing a peaceful transition, in which case retributive justice may be waived to ensure future peace and stability. However, since justice and reparation was lacking the experiment did not get the desired result.
South African Truth and Reconciliation, according to my opinion and those of many others who had the opportunity to live there and considerable segment of the population believe it was not effective enough to bring peace and reconcile the population. South Africa remains to be the most unequal country in the world and also one of the most crime infested countries where anger and resentment has reached a dangerous level. But the population has full rights of freedom of expression and has affirmed its right to demonstrate write and complin in many forms and the government listens but it has been unable to bring the desired change because of the entrenched inequalities, polices and attitudes that has successfully resisted the call for fundamental change for which the TRC was expected to build a road map., With no road map South Africa has become a fragile democracy which may explode any time unless dramatic changes take place. The TRC has achieved neither justice nor reconciliation. It failed to bring a proper balance between reconciliation and justice.
Winnie Mandela once said:
“Look at this Truth and Reconciliation charade. He should never have agreed to it.” Her anger was focused on Mandela. “What good does the truth do? How does it help anyone to know where and how their loved ones were killed or buried? That Bishop Tutu who turned it all into a religious circus.”3
But as I said above it had a good start and I believe all other countries including South Africa have learnt their lessons and recognize the need to correct through “lessons learnt, ” as it seems it is doing. Peace and stability can only be found when the evil in the country is identified and corrected. No country trying to come out of an autocratic system through which hundreds of thousands have been massacred and brutalized can succeed without justice and reparation and then reconciliation.
For the perpetrators of the ideology of hate and those who looted Ethiopia, killed and tortured many, there should be no other recourse except the hand of justice, like Pol Pot of Cambodia, like the Nazis, like those who committed genocide in Rwanda, in Liberia and Sierra Leone and many others Justice precedes Reconciliation and forgiveness not only for retribution but to also enable people to truly put their past behind them and move forward.
Restorative justice is usually for smaller offenses and not for crimes against humanity or for the kinds of crimes committed on people, in the community or against groups exercising their rights of freedom of expression, by an evil-minded government or groups, with the clear intention of causing bodily harm, to ensure the submission of the masses to their will or to eliminate a particular group of people or ethnic group. The restorative justice system uses victims and offenders to dialogue and address the harm caused by a crime as well as victims’ experiences, interests and needs. This approach can be practiced using victim-offender mediation, or facilitated through face-to-face conferences that include victims, offenders, their families, friends, and other community members. Restorative justice can occur throughout the criminal justice process, from pre-arrest to post-sentence, and can take place in settings such as prisons and communities.
Judges may consider reducing some offenders’ sentences following restorative justice. It is not possible to bring to a person the organs he has lost, or to compensate a woman who has been violated in the most inhuman way, or a man who had a bottle hanging from his penis for days, a man tortured in other brutal manners. It is not imaginable to bring these two sides and create a condition that the victim would forgive the violator. It is a crime by itself to try to bring these two communities together without justice. Nothing can remove the scars, the pains, or the hate without justice. Any attempt to preach to people about forgiveness and reconciliation without justice will not be accepted and the hate that people will carry will one day explode and people will revert to their own way of implementing justice.
Restorative justice, in contrast to retributive justice, views crime as a violation concerning people and their relationships, rather than a violation of the law with the state being the victim. The aim of restorative justice is not to establish guilt and punish perpetrators of crimes, but to identify obligations as well as to meet the needs of everyone involved and promote healing.Furthermore, rather than viewing the process of justice as a dispute between offenders and state law – ‘which in most cases leads to a win-lose outcome’ – the process of restorative justice involves all stakeholders in a conflict – including the larger community – in identifying obligations and solutions, thus promoting dialogue and mutual agreement and contributing instead to ‘a win-win outcome ‘ Instead of punishing perpetrators by means such as fines, penalties or confinement, restorative justice seeks to reintegrate them into society. It recognizes that in order to heal, people need to be able to tell their stories and hear the stories of others. By using the tools of “mediation and dialogue”, it generates space for expressions of an official public remorse, and pardon, and aspires to address the underlying causes of conflict, as well as to help prevent future abuses.
It is emphasized that use of restorative justice as a substitute for criminal justice is wrong. There cannot be and should not be forgiveness without justice. Justice determines guilt or innocence not based on the words of criminals but through the due process of the law. Once justice is served, the process of how to move on, both as a country, as a community and as individuals can take over through transitional justice.
Transitional justice consists of both judicial and non-judicial mechanisms, including prosecutions, justice, reparations, truth-seeking, institutional reform, or a combination of similar efforts. Whatever combination is chosen, it must be done so in conformity with international legal standards and obligations.
“Transitional justice is a response to systematic or widespread violations of human rights. It seeks recognition for victims and promotion of possibilities for peace, reconciliation and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse. In some cases, these transformations happen suddenly; in others, they may take place over many decades.”3
The following paragraph is taken from the Guidance of the Secretary General United Nations Approach to Transitional Justice. 4
Transitional justice processes and mechanisms do not operate in a political vacuum, but are often designed and implemented in fragile post-conflict and transitional environments. The UN must be fully aware of the political context and the potential implications of transitional justice mechanisms. In line with the its Charter, the UN supports accountability, justice and reconciliation at all times. Peace and justice should be promoted as mutually reinforcing imperatives and the perception that they are at odds should be countered. The question for the UN is never whether to pursue accountability and justice, but rather when and how. The nature and timing of such measures should be framed first of all in the context of international legal obligations and taking due account of the national context and the views of the national stakeholders, particularly victims. In situations in which national conditions do not allow for or limit the effectiveness of transitional justice measures, the UN supports activities that encourage and lay the foundation for effective mechanisms and processes. These could include dialogue to assist national stakeholders to promote interest in and understanding of transitional justice measures. The UN cannot endorse provisions in peace agreements that preclude accountability for genocide, war crimes, crimes against humanity, and gross violations of human rights, and should seek to promote peace agreements that safeguard room for accountability and transitional justice measures in the postconflict and transitional periods.
A national dialogue is very much needed for Ethiopia to enable it to come out of this quagmire which can only lead to continued instability, loss of life, economic disaster, and the creation of war lords who would not be willing to give up their turf to any kind of political system that will take away their hold on their people, the land and the resources. The spillover effect and the possibility of direct or indirect foreign interference will be a nightmare for Ethiopia, the region and the continentand beyond.
It is believed that members of the National Dialogue Committee re knowledgeable people who don’t need my advice or lecture. This is, however, a plea to remind them how serious and urgent their task is and to emphasize that with the mandate that they have they will not be able to bring peace and stability in Ethiopia no matter how patriotic and committed they may be. The only path to peace and stability in Ethiopia is transitional justice as explained above. If they wish to make history and make historic contribution to peace and stability in a united Ethiopia they have to dismiss the mandate and manner in which they have been selected. They must realize that they are only a government branch, no better than the cabinet of the government. Without underestimating their sense of patriotism in accepting this selection. I request on behalf of millions who want to see Ethiopia along the path of sustainable peace, that they consider this approach and correct it, amend it and do what needs to be done.
Members of a National Dialogue should be independent individuals, not selected by a government, but mandated by a National Convention which represents citizens of all backgrounds. The National Convention will be independent, and the commissioners elected will coordinate the activities of the National Convention which will essentially have three major functions:
- The first part is the Constitutional Committee mandated to review the current constitution and come up with proposals. These proposals will be thoroughly discussed by the members of the National Conference and submitted to the people for referendum
- The second part is the establishment of Truth, Justice, Reparation and Reconciliation committee which will discuss the path towards reconciliation and pave the way to peaceful co-existence.
- The third part will be the establishment of a committee for an independent electoral board and the definition of is its mandate.
If the current members could suggest this approach to the government in a convincing manner, it would be a bold heroic act that could save Ethiopia from perpetual turmoil. The beginning of this approach and the resolve to implement it will bring great confidence to the people, although the process towards meaningful peaceful co-existence might be long and painstaking. The details of these proposals are many. Through the resources the members have at their disposal they will be able to work this out.
The most important step is the formation of an independent National Conference responsible only to the people and not the government. This would become the foundation that would lead our people towards sustainable peace and show to the world that, we Ethiopians, can resolve our problems without the intervention of third parties who come with their own agendas. I have no doubt, under the circumstances that exists, there is no other option except a bold selfless action by the members of this Committee. I have no doubt that the members would be able to convince the government if they are convinced themselves that this general approach is the only option we have to bring our people together.
Dawit Wolde Giorgis, studied law in Ethiopia and international law at Columbia University in New York and is a visiting scholar at Boston University, Africa Studies Center.
*For details read my most recent book: What A Life!