Human Security For All: A Tribute to Sergio Vieira de Mello

Justice and Reconciliation:The Contribution of War Crimes Tribunals and Truth and Reconciliation Commissions

Justice and Reconciliation: The Contribution of War Crimes Tribunals and Truth and Reconciliation Commissions David Owen Justice is the outcome of individual decisions. It does not exist in the abstract; it stems from the interpretation of laws. Justice is also one of the four cardinal virtues, along with prudence, temperance, and fortitude. Virtues that cover a person’s worth or merit cannot be absolute. They are of necessity qualified. Yet the quest for absolute or pure justice persists . There are qualities besides mercy which season justice and one of these is the ability to relate justice to reconciliation. The theme—of how justice relates to reconciliation and reconciliation to justice in the pursuit of peace—was a topic on which Sergio Vieira de Mello often spoke and upon which he frequently acted. On 24 September 2002, as High Commissioner for Human Rights, he said: I would also like us to be equipped and ready to assist societies emerging from conflict to build democratic, representative, participatory and accountable institutions, to heal their wounds, to work on reconciliation and to ensure a credible process of accountability for the serious crimes and violations committed during conflict. I know all too well from our work in Kosovo and East Timor how onerous this task is, but I also know how vital and worthy of your support it is. Frequently, a conflict has its origins in patterns of discrimination. We need to address these basic root-causes through advancing the principle of equality. We need to strengthen our work on this bedrock of justice that is at the core of all human rights. cahill.qxp 10/1/2004 1:36 PM Page 190 The start of the twenty-first century is a good time to reassess our attitudes and actions toward bringing war criminals to justice and upholding the rule of law where there has been conflict. We need to reassert that to reconcile is part of the practice of peacemaking and peacebuilding and that to devise techniques, develop mechanisms, and to help bring estranged persons or parties together is the essence of reconciliation . Upholding the rule of law by the pursuit of justice is, nevertheless , also a mechanism for reconciliation. The skill is to achieve a wise balance. History is full of balancing acts between justice and reconciliation. The Act of Indemnity and Oblivion in the aftermath of the 1642–51 English Civil War “halted all process of revenge or retribution.” Only those who actually signed Charles I’s death warrant or had been involved in his execution, plus a few others, were exempted from the provision of the Act.1 President Abraham Lincoln, on 8 December 1863, offered pardon and amnesty to all persons who took an oath of allegiance to the United States, its laws and proclamations concerning slavery, exempting only Confederate officials and high ranking officers.2 The Nuremberg Military War Crimes Tribunal was brought to an end by a decision of the occupying powers in 1948 not to pursue further war crime investigations and trials on people in the occupied zone. In Africa there have been very important acts of reconciliation. After the guerilla war in what was Rhodesia, Robert Mugabe, as Prime Minister, in 1980, surprised many by his readiness to reconcile. It has been a tragedy that after such an optimistic start for independence, President Mugabe’s overall record will be one of destroying Zimbabwe ’s peace and prosperity. In Southwest Africa, the transition of Namibia under President Sam Nujoma in the 1990s was also characterized by reconciliation. In South Africa under President Mandela, it was decided that a commission should be established for Truth and Reconciliation, which provided a structured mechanism for amnesties and victim support. This has proved its worth and though there have been a number of other countries with similar successful experiences with such commissions, it is the South African experience which is likely to set the pattern for the future. JUSTICE AND RECONCILIATION 191 cahill.qxp 10/1/2004 1:36 PM Page 191 YUGOSLAVIA AND THE CREATION OF THE ICFY The London Session which created the International Conference on the Former Yugoslavia (ICFY) on 27 August 1992 published a summary of its conclusions3 that stated that the Co-Chairmen, Cyrus Vance and myself, had “undertaken to carry forward a study of the creation of an international criminal court.” There was at the time some disagreement on this issue between countries...