INCORE 2002
Government Strategies on Victims
in Post-Conflict Societies
by
Gráinne Kelly and Mari Fitzduff
UNU/INCORE
University of Ulster/United Nations University
2002
Government Strategies on Victims in Post-Conflict Societies
Government Strategies on Victims
in Post-Conflict Societies
Introduction.
This remit of this research project, was two fold a) to give a brief overview of victims’
strategies adopted by governments in post-conflict societies and b) the creation of an
international bibliography on victims’ work. The report does not purport to be
extensive or comprehensive, yet it will hopefully provide the reader with the general
trends and policies in relation to victims of conflict in a range of settings.
Six countries were chosen in order to illustrate a range of policies, structures,
processes and/or programmes that have been implemented, as well as a broad range of
conflict and post-conflict experiences. The countries chosen therefore were
Guatemala, Chile, South Africa, Cambodia, Mozambique and Rwanda. The timing
since violence primarily ended in these countries ranged from 7 years in the case of
Rwanda, to 30 years in the case of Cambodia.
The second aspect of this research was the creation of an international bibliography of
work with victims, which will usefully illustrate the current state of play in the field,
both at a theoretical and practical level. The collection of materials related to victims
issues uncovered has led the researcher to conclude that much writing on this issue
had been country specific and leans itself either toward studies of truth commissions
and other related tribunals or to very psychologically based studies of the impact of
trauma on survivors. Therefore, this bibliography cannot be seen to be a
comprehensive guide to all the writings on work with victims written in the English
language, but does however provide a vast resource for anyone wishing to access
studies and analyses of the various and varied processes which are undertaken to deal
with conflict-related violence and death.
Research Findings:
a) The countries studied e.g. Cambodia, Chile, Guatemala, Mozambique, Rwanda,
and South Africa, varied enormously in the time they had taken to begin the
process of addressing the past atrocities of a conflict, and the needs of victims.
b)
Mechanisms for dealing with the legacy of the past were varied e.g.
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Truth and reconciliation commissions, and variants thereof.
Investigations into the exact nature of the patterns and scale of the violence that
had occurred.
Reparation money for victims for e.g. education schemes, medical care,
pensions, exemptions from mandatory military service, psychological
counselling, vocational training, special legal status, care for orphans of the
conflict.
The setting up of trauma centres and community self-help counselling
programmes.
Supporting local conflict resolution processes.
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2
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The development of ‘memory sites’ such as public monuments, memorials, and
parks that commemorate and seek to place into the public record the memory of
those whose lives have been lost through the violence.
National holidays to commemorate the victims.
c)
In none of the surveyed countries did it appear that victims were wholly satisfied
with the way in which issues of past violence were addressed. In few cases was
adequate support being provided to victims of the conflict and a severe lack of
funding from many government has resulted in the burden of psychological
support being offered to those affected by the conflict being placed on
international agencies and the voluntary sector. In many cases financial support
intended for the victims either went missing, or was delayed indefinitely.
d)
What was discovered was a much stronger emphasis on prosecution of those
perpetrators of the violence rather than on other forms of assistance for the
survivors. However, in some cases, the sheer scale of the killings meant that
only a few symbolic perpetrators, at senior level, were brought to trial, and many
thousands of others escaped conviction. Often these perpetrators live among the
survivors of the genocide and violence they had inflicted.
e)
In every country studied, the balance between truth, justice, and reconciliation
processes remained problematic. Impunity remained a major problem in many
countries, with few people having been charged for past atrocities. Fears of
political instability, and the possibility of detrimentally affecting the prospects
of reconciliation, were frequently cited as reasons for failing to seek justice for
past violence.
f)
Current leadership in some countries prevented moves to address issues of past
violence, as many of those suspected of such violence were involved in current
administrations.
g)
The powers of truth commissions, and other governmental projects directed at
dealing with the past varied from country to country in terms of objectives,
methodologies, legislation, etc. Often these variances have been due to of
current reigning political expediencies.
h)
While truth commissions do go some way to dealing with the legacy of the
conflict, they rarely satisfy the need for acknowledgement and accountability on
the part of victims and survivors.
i)
The report indicated that dealing with the needs of victims of wars and conflicts
often takes decades.
3
CAMBODIA
Introduction
The impact of the Khmer Rouge years on the citizens of Cambodia are still being felt
daily – from the unexploded landmines still littered in the ground to the untreated
trauma of those who were subject to torture at the hands of the KR troops. Although
the physical psychological effects have been recognised by recent governments, the
resources to deal with these issues adequately have not been forthcoming and a
reluctance to prosecute all those guilty of instigating and perpetrating human rights
violations had lead to a culture of immunity and a cynicism of the effectiveness of the
justice system amongst many.
Background to the Conflict
Cambodia is located in the southwestern section of the Indo-Chinese Peninsula in
South East Asia. It is bound by Thailand to the northwest and west, Laos to the north
and northeast, Vietnam to the east and southeast and the Gulf of Thailand to the south.
The principal ethnic majority are the Khmer who account for around 94% of the
population while 3% are Chinese and 2.3% are Cham-Malays. The remainder are a
combination of small ethnic minorities such as Thai, Lao, Kola and Vietnamese.
Having been a part of French Indochina (which included Vietnam and Laos) since the
late 19th century, Cambodia gained independence in 1953, resulting in Prince
Norodom Sihanouk becoming Head of State of Cambodia for the greater part of the
following number of decades. Although not directly involved, the Vietnam War of
the last 1960s and early 1970s had a huge impact on Cambodia, as it did the entire
South-East Asian region. Although, in theory Prince Norodom Sihanouk kept the
country out of the war, he himself was overthrown in a related, US backed right wing
military coup in 1970. He quickly joined forces with the leader of the indigenous
communist Khmer Rouge known as ‘Pol Pot’ and in 1975 they overthrew the Prime
Minister Lon Nol. Sihanouk was returned as head of state. Having assisted Sihanouk,
Pol Pot then quickly overthrew him and began a new regime, renaming the country
Democratic Kampuchea.
During the next four years, the Khmer Rouge attempted to create a peasant agrarian
society, inspired by Mao’s communist China. This was achieved with devastating
consequences for the population. Townspeople were forced back to work on the land
as part of a collectivised agricultural system, many thousands not surviving the
journey; religious practice was outlawed, schools, government offices and courts were
closed and the educated classes were systematically murdered by the KR or were
driven from the country and into exile.
At the end of 1978, the Khmer Rouge reign of terror ended with the invasion of
Vietnamese forces, the KR were forced into exile in Thailand and continued to wage
war against the Vietnamese backed, socially oriented regime of the newly renamed
Peoples Republic of Kampuchea (PRK). Throughout the 1980s, Cambodia found
itself isolated economically and politically and received no humanitarian or
4
development assistance from the United Nations. In 1989 the Vietnamese troops
withdrew from Cambodia as support from the USSR diminished.
Political Settlement
In 1987, a series of complex negotiations began involving the main protagonists to the
on going conflict. These talks lasted until 1991and involved nineteen countries, the
UN and the four main factions in conflict. They eventually led to the signing by the
four Khmer factions (who acted as full participants to the agreement) 19 countries and
the UN Secretary-General, of the Agreements on a Comprehensive Political
Settlement of the Cambodian Conflict in October of that year.1 This settlement aimed
at putting to an end over a decade of war and isolation by making provisions for a
ceasefire, UN supervision, demobilisation and disarmament and laying the
foundations for a new peaceful beginning for Cambodia and its people. Soon
afterwards the UN Security Council authorised the establishment of a peacekeeping
mission to oversee the implementation of the Agreements, known as UNTAC (United
Nations Transitional Authority in Cambodia). Under the terms of the agreement, the
Khmer Rouge were invited to participate in a provisional government of national
unity, pending U.N.-supervised elections. They quickly pulled out of the peace
process and returned to guerrilla warfare, funded by the proceeds of smuggled timber
and gems.
The peace accord which paved the way for the setting up of a government of
‘National Reconciliation’ in Cambodia emphasised the need for cooperation between
all the parties in terms of political and social stability. However, it sidestepped any
reference to the crimes of the Khmer Rouge (instead, it merely called on the
signatories not to 'repeat the policies and practices of the past') and did not explicitly
set out how to provide assistance to those who had suffered as a result of the conflict.
In practical terms, there were references to creating the environment in which
refugees and displaced persons would be able to return to their country (Article 19
and 20) and prisoners of war and civilian internees would be released. (Article 21 and
22).
The agreement did not give UNTAC the powers to instigate trials against Khmer
Rouge leaders or to strip them of their power or influence. However, it did provide
for the development and implementation of human rights education, general human
rights oversight during the transitional period and ‘the investigation of human rights
complaints, and, where appropriate, corrective action.’
Post-Settlement
The challenges facing the new leaders of Cambodia post Paris Accord were great.
Cambodia was isolated politically and economically from the rest of the world and the
population has suffered two decades of war, poverty and social disruption. In May
1993, under the control of UNTAC, national elections were held and a new coalition
1
For full text on the Paris Accords, see Accord – Issue 5/November 1988 – Safeguarding Peace:
Cambodia’s Constitutional Challenge www.c-r.org/cr
5
government of ‘National Reconciliation’ was formed between Hun Sen (of the
Cambodian People’s Party (CPP) and formerly of the Khmer Rouge) and Prince
Ranariddh’s (son of Sihanouk and a former ally of the Khmer Rouge) FUNCINPEC
Party.
Although there were great hopes and expectations of a new era of economic and
political responsibility for Cambodia, the following years proved difficult for the
country. The unwritten power sharing arrangement made between the CPP and
FUNCINPEC proved particularly difficult and in July 1997, Prince Ranariddh was
overthrown by Hun Sen, who has become a ‘more traditional and intolerant leader’2
than was anticipated. Ranariddh was forced into exile whilst the supporters of both
factions continued to fight amongst themselves. At the end of the year, government
forces attacked the pro-Ranariddh supporters but international pressure forced Hun
Sen to agree to a ceasefire on condition that Ranariddh be tried in his absence (for
illegal weapon importation) and then granted an amnesty.
In March 1998 Prince Ranariddh returned to Phnom Penh, hoping that ‘a fair and
credible’ election would take place in the summer, in which he would take part.
Fighting nevertheless continued in the north. In November 1998, a coalition
government was formed by the Cambodian People's Party (CPP) and the National
United Front for an Independent, Neutral, Peaceful and Cooperative Cambodia
(FUNCINPEC), headed by CPP Prime Minister Hun Sen.
Impact of the Conflict
Exact figures of the number of Cambodians who died between April 1975 and
January 1979 is not known, but it is estimated that it was as many as 1.5 million died
(around 20% of the entire population) as a result of malnutrition, overwork and
disease and at least 200,000 others were executed without trial. The educated group of
teachers, managers, doctors, nurses and other skilled professionals were almost
entirely wiped out. The results of decades of unrest in Cambodia have resulted in an
estimated 158,000 disabled persons (of whom 45,000 are land mine amputees),
200,000 impoverished youth and war orphans and 600,000 widows.
Prosecution of the Khmer Rouge
In January 1994, the newly formed Cambodian National Assembly passed legislation
proscribing the Khmer Rouge and began the task of assimilating ex-Khmer Rouge
forces into the government army. This law stated that only during the period of six
months after the law was approved could the defected Khmer Rouge be pardoned and
no further. It also states that for the Khmer Rouge leaders there would be no pardon
at all. The Khmer Rouge who do not defect in the period as mentioned above would
be imprisoned for 20-30 years, or serve life imprisonment by the same law. It does
not appear, however, as if this law has been followed and many of those who did not
defect during this period have been prosecuted for their crimes. For those who could
2
Accord – Issue 5/November 1988 – Safeguarding Peace: Cambodia’s Constitutional Challenge, P18
www.c-r.org/cr
6
or would not be assimilated, the government spoke of prosecuting leaders of the KR,
but not as strenuously as might have been envisaged by the international community.
It appeared that Hun Sen did not wish to engage in ‘disruptive legal proceedings’
against the KR, at the risk of putting political stability in jeopardy. The government
therefore, attempted to entice senior leaders of the KR to defect to the government
side in return for amnesty from prosecution. This resulted in troops under the leaders
control following them to the government side, but also caused a major internal rift
within the remaining KR troops and led to Son Sen (the former Khmer Rouge Deputy
Prime Minister) and his family being killed by Pol Pot in April 1997. During the
same year, Pol Pot himself was sentenced to life imprisonment following a show trial
on the instigation of the KR and was detained at a KR army base where he died,
supposedly from natural causes in April 1998. In February 1999 the Cambodian
government announced the incorporation of the last remaining Khmer Rouge soldiers
in the national army.
War Crimes Tribunal
On April 11, 1997, the U.N. Commission on Human Rights adopted a resolution
(1997/49), which requested 'the Secretary General, through his Special
Representative, to examine any request for assistance in responding to past serious
violations of Cambodian and international law.' On June 21, 1997, the two prime
ministers of Cambodia (First Prime Minister Norodom Ranariddh and Second Prime
Minister Hun Sen) responded to the Commission resolution by requesting the
assistance of the United Nations and international community in bringing to justice
those persons responsible for the genocide and crimes against humanity during rule
Khmer Rouge rule from 17 April 1975 to 7 January 1979, stating in a letter to the
Secretary General that "Cambodia does not have the resources or expertise to conduct
this very important procedure." In July 1998, the UN Secretary General created the
Group of Experts to assess the feasibility of bringing Khmer Rouge leaders to justice
and in February 1999, they produce a report recommending the formation of a special
international tribunal to bring to justice those suspected of responsibility for gross
human rights violations during the period of Khmer Rouge rule.
The Cambodian authorities rejected the report and stated their intention to hold trials
in Cambodia under domestic law, although there were concerns about standards of
fairness and judicial independence. Prime Minister Hun Sen wrote to the UN
Secretary-General reiterating that any trial would take place in Cambodia in an
existing court, but adding that the participation of foreign judges and prosecutors
would be invited, to uphold standards for fairness, and that a law to allow for this
would be drafted and presented to the National Assembly. Prime Minister Hun Sen
ordered the rearrest of hundreds of people released by the courts previously. In
August 1999, the UN and Cambodian officials meet but fail to reach an agreement on
how to set up a genocide tribunal for Khmer Rouge leaders. The head of the UN team
stated says that if the Cambodian government does not meet conditions that the UN
believes necessary for a tribunal, “The UN will simply cease to follow this process.”
The two sides agree to meet again in September. While attending the 54th UN
General Assembly, Hun Sen deliverd a document to UN Secretary General Kofi
Annan outlining three options for UN involvement in a Khmer Rouge tribunal: 1)
7
provide a legal team and participate in a tribunal conducted in Cambodia's existing
courts; 2) provide a legal team which would not participate in the tribunal; 3)
withdraw completely from the proposed tribunal. In November 1999, the government
stated that a UN tribunal was unnecessary as the government was committed to
bringing the Khmer Rouge to justice domestically.3
After more than two years of negotiations, Cambodia and the United Nations
tentatively reached agreement in July 2000 to establish a national tribunal with
international participation to bring former Khmer Rouge leaders to justice. As a
compromise to a fully international tribunal, the U.N. agreed that the tribunal would
be located in Cambodia, as a three-tiered special chamber within the Cambodian court
system, consisting of a majority of Cambodian judges and a minority of foreign
judges. All judges were to be appointed by the Cambodian Supreme Council of
Magistracy (SCM), which is dominated by the ruling Cambodian People's Party
(CPP), although the U.N. secretary-general was to put forward a list of foreign jurists
as nominees for consideration by the SCM.4 The temporal jurisdiction of the tribunal
-- that is, the time period for which violations of the law could be prosecuted -- would
be from April 17, 1975 to January 7, 1979. The penalties are imprisonment from five
years to life. The Cambodian constitution bans the death penalty.
Financing for the tribunal would come mainly from a trust fund established by the
U.N. General Assembly. This is a long and laborious task and it can take up to two
years between a decision being passed by the UN Security Council and the
establishment of the Tribunal (based on the experience in Rwanda and former
Yugoslavia). The next step is for the Cambodian National Assembly and Senate to
debate and presumably pass the draft law on the tribunal, based on the formula agreed
by the government and the United Nations. However, several key sources in
Cambodia have suggested that the parliament may make significant changes to the
agreement in the course of debate. Some of these changes could be unacceptable to
the United Nations and drive the whole issue back to the bargaining table, or perhaps
kill the deal altogether.
Impact of Landmines
As a dramatic legacy of the Vietnam War, border fighting between Cambodia and
Vietnam and the civil war, there are an estimated 8 million landmines still in
Cambodia. Most of these landmine victims are civilians, including many women and
children, who accidentally trigger off buried mines whilst they are farming, herding
animals, gathering firewood, harvesting rice or going about their daily business.
According to the Cambodian Mine Action Center (CMAC), one of every 236 people
is an amputee due, in large measure to the presence of these mines.
The CMAC and the Mine Clearance Training Unit (MCTU) were founded by
UNTAC in April 1992 with a mandate to research and identify the locations of
minefields nationwide and to train thousands of Cambodians to detect and destroy
landmines. The MCTU was absorbed into CMAC in July 1993, making CMAC the
central coordinating body for all landmine-related Activities in Cambodia, including
3
4
Amnesty International – Annual Report 2000
Human Rights Watch, Annual Report 2000
8
demining, public awareness, and landmine control initiatives. Prior to UNTAC's
withdrawal in November 1993, CMAC was reconstituted as an official organ of the
Royal Cambodian Government. Funding for the CMAC is managed by a trust fund of
international donations.
Most support for landmine survivors is provided by non-government organization.
The government provides a small pension to soldiers who become landmine victims.
The pension ranges from 30,000 - 180,000 riels per month (approximately US$ 8 47). It is often months late or diverted to another person and never paid to the victim
or the family.5
The Cambodian government has developed a health plan for the treatment of
landmines victims with operational districts, which consist of referral hospitals and
health centres. These health centres are planned to be within ten kilometres or two
hours walk of the population they serve. Surgical facilities are now available at the
provincial level for landmine injuries, however, much of this provision is aided by
NGOs such as Medicins Sans Frontieres. Ongoing health services are needed for
recurring wounds from the surfacing of shrapnel and other causes. In many areas,
poverty of both the health care staff and of the patients is the problem, not the lack of
facilities. Five international non-governmental organisations have taken responsibility
for the production and distribution of prosthetics in Cambodia.
Psychological Support
When Dr. Richard F. Mollica and James Lavelle, founders of the Harvard Program in
Refugee Trauma, conducted the first large-scale epidemiologic study of mass violence
on Cambodian civilians in 1990, they uncovered a staggering mental health crisis at
Site 2, a Thai camp that held more than 150,000 refugees. The average respondent
had experienced 16 traumatic events, from lack of food and forced labor to the murder
of a family member, torture and rape. One in 10 expressed suicidal feelings. Fifty-five
percent met Western standards for major depression.6
A severe lack of funding and resources has resulted in little government support for
psychological treatment. The primary-care physicians trained by the Harvard clinic,
with the intention of treating people suffering from mental illness have discovered
that the Ministry of Health does not have the financial capacity to build clinics, let
alone supply psychotropic drugs.
In Summary:
ß
The full extent of the atrocities which were carried out during this period were
only to emerge in the years and decades which followed, and the human cost of
this experiment are still being felt to this day.
5
see Landmine Monitor Report 2000 – Towards a Mine Free World http://www.hrw.org/reports/2000/landmines/
6
Healing the haunted: Harvard program tries to treat traumatized Cambodian's deep psychological
wounds Christopher Cox Friday, April 28, 2000, CNN
9
ß
Impunity remains a major problem in Cambodia with few senior members of the
Khmer Rouge having been charged or convicted of crimes against humanity and
others having been granted amnesties from prosecution.
ß
The impact of the War Crimes Tribunal in Cambodia will not become clear until
it begins its work in earnest and begins to pass down judgements in the
perpetrators.
ß
A severe lack of funding from the government has resulted in the burden of
psychological support being offered to those affected by the conflict being
placed on international agencies and the voluntary sector.
ß
The presence of landmines continues to create new victims each day as people
are injured and die as a result of their planting during the Khmer Rouge years
over twenty years previously.
10
CHILE
Introduction
The Pinochet years of 1973 to 1990 resulted in thousands of arrests, tortures and
executions of those perceived to be enemies of the regime. With the much delayed
prosecution of Pinochet now imminent, international attention has again been focused
on the enduring legacy of those years on the victims of torture and those that were
bereaved. Efforts to deal with the legacy of that regime by subsequent governments
have shown that the country is now ready to deal, with at least some aspects of the
past and implement new policies for change.
Background to the Conflict
Situated south of Peru and west of Bolivia and Argentina, Chile fills a narrow 1,800mile (2,897 km) strip between the Andes and the Pacific. Chile was originally under
the control of the Incas in the north and the nomadic Araucanos in the south. The
country came under the influence of Spanish colonial rule as early as 1541, becoming
part of the Viceroyalty of Peru and later having its own government. Independence
was eventually gained in 1818 and a parliamentary style, relatively stable democracy
was established, although favouring the ruling landowning oligarchy to a great extent.
Bernardo O'Higgins, son of an Irish immigrant and former viceroy of Peru, became
supreme director of the new Chilean republic and oversaw the beginning of rapid
agricultural development and the advancement of mining, industry and commerce.
The 1890s saw a brief but bloody civil war in the country and the first half of the
twentieth century proved politically turbulent as the country swung between right and
left leaderships with parliamentary dictatorships with no government gaining
sufficient popular support to secure large-scale reform.
Development of the country was uneven with urbanisation taking huge leaps, leading
to underdeveloped rural life and urban poverty. In the 1960s, social reforms were
initiated by the Christian Democrats, who successfully tackled issues of education,
health, housing and social services, all of which threatened the conservative elite's
privileges and also offended the radical left. Politics in Chile became increasingly
militant and divergent, leading to victory for the Marxist Allende's coalition of
Socialists, Communists and extremists in 1970. Allende quickly established relations
with Cuba and the People's Republic of China and introduced extensive economic
reforms in the Marxist tradition. He initiated the redistribution of private wealth and
land and the nationalisation of banks, mineral resources and private, and particularly
American, enterprises. Opposition to his programme was strong from the start and
intensified as the country experienced severe economic problems and later chaos.
Using jets to attack the presidential palace, a four-man junta headed by commanderin-chief of the Chilean Armed Forces and National Police Augusto Pinochet Ugarte,
seized power in a bloody coup on 11 September 1973. Thousands of Allende’s
supporters were murdered and Allende himself reportedly committed suicide.
Pinochet assumed the office of President and quickly gained control of the country,
purging the country of perceived opposition by expelling or assassination. He
11
suspended Parliament, banned political activity, imposed censorship and broke
relations with Cuba. His economic policies brought a measure of economic stability
and relative prosperity to the country.
In 1981, Pinochet was inaugurated for an 8-year term as president. There were largescale protests against the government in 1983, followed by a wave of bombings in
major cities. Having relaxed the stage of siege, rising opposition combined with
economic decline led Pinochet to reimpose it in November 1984. After an
unsuccessful attempt on Pinochet's life in September 1986, he launched new
repressive measures. In 1988, the state of emergency was finally lifted and Chileans
were offered a referendum of whether Pinochet’s term, due to to finish in March 1989
should be extended to 1997. Voters rejected Pinochet by a majority of 7% and in
January 1990 he stepped down following the election of December 1989. Christian
Democrat, Patricio Aylwin was inaugurated as the new president having beaten
Pinochet's candidate, Hernan Buchi. Power was peacefully transferred and
democratic processes returned to Chile. Pinochet announced his intention to remain
the commander-in-chief of the armed forces until 1997.
In December 1993 Eduardo Frei Ruiz-Tagle won the presidential election and began a
new process by which the Chilean people could deal with the past under Pinochet’s
rule. This work was severely hampered by the resistance of the military, of which
Pinochet was still commander in chief. In March 1998, Pinochet did retire as army
commander in chief. In January 2000 the socialist Ricardo Lagos won the presidency
of Chile.
Impact of the Conflict
From 1973 until 1990, serious human rights violations were inflicted on many
Chileans deemed to be enemies or threats to the military regime. Thousands were
arrested, executed, tortured, or exiled, while still others languished in prison or simply
disappeared. Although no accurate count exists, according to some reports, around
4,000 Chileans were executed, died as a result of torture, or simply ’disappeared’. An
estimated 80% of the deaths committed by state agents occurred between 1973 and
1978. In addition, an estimated 40,000 were tortured. Some were tortured in order to
intimidate and frighten them, some for information and others in order to drive them
into exile. Those particularly targeted included members of left wing parties, unions,
students and civil servants of Allende’s socialist government.
Chilean Truth Commission
In 1990 President Patricio Alywin Alócar established the Comision Nacional de
Verdad y Reconciliacion, the Commission for Truth and Reconciliation, to deal with
human rights violations during the years of the military government. The role of the
commission was to gather evidence that could make it possible to identify the fate or
whereabouts of those that “disappeared”, and investigate cases of extra judicial
executions and deaths resulting from torture. The commission documented more than
3,000 disappearances during the Pinochet years. However, the panel did not
document instances of torture, unless they resulted in the death of the victim.
12
Although narrow in scope, the commission was praised for the work which it
achieved. President Aylwin publicly released the 1,800-page Rettig report in
February 1990, and made a formal apology to the victims and their families on behalf
of the State, and asked the army to acknowledge its role in the violence. Pinochet’s
presence as commander in chief of the Chilean army until 1998 has been quoted as
one reason for the exclusion of torture from the report, given the uneasy relationship
between politics and the military in the newly democratic Chile and the high instances
of torture by military personnel.
Several of the recommendations in the report have been implemented, including the
establishment of a "National Corporation for Reparation and Reconciliation" to follow
up the commission's work and to oversee reparations to victims. In February 1992, the
successor to the 1990 Commission, the Corporaction de Reparacion y Reconciliacion,
The Corporation for Reparation and Reconciliation, was set up which would continue
the work on unresolved cases and receive and investigate new cases. It would also
administer reparations to the victims as identified by the Commission on Truth and
Reconciliation and by the Corporation itself. Neither of these two bodies has any
formal legal powers, however, they did pass on information on cases they had
examined to the courts for judicial investigation. According to Amnesty
International7 the combined findings of the two bodies brought the number of
“disappearances” to 1,102 and extra judicial executions and deaths under torture to
2,095, making a total of 3,197 cases that were officially recognised by the Chilean
State. Again, cases of torture not resulting in death were not investigated.
Reparations
The commission envisaged three aspects to reparations: the disclosure of the truth and
the "end of secrecy," the recognition of the victims' dignity and the pain suffered by
their relatives, and measures to improve the quality of their lives. A new law enacted
provides for a "reparation pension", which is a monthly allowance for the benefit of
relatives of the victims, including the surviving spouse, the mother and children under
25 years or handicapped children of any age. Other items of compensation are
medical and education benefits. The pension is distributed by giving 40 percent to the
surviving spouse, 30 percent to the decedent's mother (or father in the mother's
absence), 15 percent to the mother or father of the natural children of the victim, and
15 percent to each child of the victim under the age of 25 and to disabled children of
any age. Each beneficiary is also entitled to collect a one-time annuity equivalent to
twelve monthly pensions, which is not considered taxable income. These reparations
only cover deaths as a result of the regime and not other gross human rights violations
not resulting in death.
The children of victims are entitled to special educational benefits until the age of 35.
The law provides that children studying in secondary schools, universities,
professional institutes or technical institutes shall receive scholarships to pay for
registration and tuition fees, plus a monthly allowance to cover living expenses.
Finally, the law exempts children of victims from mandatory military service.
7
Amnesty International Report, AMR 22/13/99 Chile: A Human Rights Review based on the
International Covenant on Civil and Political Rights
13
The Prosecution of Pinochet
Under the Chilean constitution, Pinochet, as a senator-for-life, enjoyed full immunity
from criminal proceedings within the country. No attempts to charge him with any
crimes were initiated in Chile since he stepped down from power in March 1990. In
addition, in April 1978 the military government, lead by Pinochet, introduced the
Amnesty Law by Decree Law 2.191, preventing the prosecution of individuals
implicated in certain criminal acts committed between 11 September 1973 and 10
March 1978. This law has also hindered possible prosecution of violators of human
rights for many years in Chile.
In October 1998, whilst in Britain undergoing medical treatment, Pinochet was
arrested and detained following a ruling in a Spanish court who requested his
extradition to Spain to face charges connected to the disappearance and torture of
Spanish citizens during his Presidency. Pinochet’s British lawyers won a habeus
corpus appeal in the High Court which held that he was immune from legal process in
the United Kingdom. However, on appeal, the House of Lords Judicial Committee
reversed this decision, concluding that sovereign immunity did not extend to crimes
against humanity. Following some legal wrangling involving suggestions of bias, a
third panel of Law Lords pronounced his arrest to be lawful and consistent with
Britain’s obligations under the UN Convention against Torture. However, Pinochet
could only be extradited on charges of torture committed after December 8, 1988
which the UK ratified the Convention against Torture. 8 In effect, the majority of the
charges were eliminated, yet he was no entitled to state immunity on torture charges.
In April 1999, the British Home Secretary approved the extradition proceedings.
Pinochet remained under house arrest. The Chilean government under Frei also
opposed the extradition order to Spain on the basis that any trial should take place in
Chile, a position which was not popular amongst many of Pinochet’s torture victims.
In December 1999, President Frei publicly asserted that Chile retained the right to
determine Pinochet's liability on human rights violations. In January 2000, on winning
the Presidency, Ricardo Lagos made it clear that the prosecution of Pinochet was not
one of his main concerns. Ultimately, in March 2000, the British courts denied his
extradition to Spain on the basis that he was too ill to stand trial and awarded him
legal costs. Pinochet returned to Chile. In June 2000, The Chilean Supreme Court,
voting 14 to 6 in favour, stripped Pinochet of his immunity from prosecution making
it likely that he will stand trial for his alleged involvement in the torture and deaths of
thousands who opposed his military regime.
Prosecution of Violators of Human Rights
It has been suggested that fears of political instability have repeatedly hindered efforts
by the present and previously Chilean governments to deal with issues of the past and
prosecution of those perpetrators. According to the US Department of State, ‘Efforts
to bring abusers to justice in cases dating back to the early years of the military
8
Human Rights Watch, World Report 2000
14
government are limited by the conflicting demands for justice and for national
reconciliation.’9
In August 1995 President Frei introduced legislation that would reopen and accelerate
investigations into all pending cases of people who "disappeared" during the Pinochet
years. By November compromise agreements were reached, which stated that cases
would be reopened only if plaintiffs could submit new evidence; that cases already
under military jurisdiction would remain so; and that judges would be allowed to
close cases even if the victims' fate remained undetermined.
Civilian and military courts have used the Amnesty Law of 1978, passed during the
Pinochet regime, to block human rights violations cases. In January 2000, the New
York Times reported10 ‘To this day no torturer has been investigated, no torturer has
been tried, no compensation has been paid. Too many military officers were involved
for the new civilian government to pursue the issue without threatening the stability of
a still-incomplete transition to civilian rule.’
Talks between human rights lawyers and senior Chilean military officers have been
initiated, however, aimed at uncovering information about “disappeared” of the
Pinochet years. These meetings were initiated by the government in an attempt to
facilitate national reconciliation, however, they did not have the support of the
organisation which represents many of the families of the disappeared.
Psychological Support
In 1991, the government established a small unit within the Ministry of Health
entitled the ‘Program for the Integral Repair of Health and Human Rights’ in order to
treat torture victims, relatives of the disappeared and former political prisoners. The
programme includes general medical care, social services, psychological counselling,
and other services free of charge. The victims' parents, children or siblings are eligible
to receive this assistance. From 1991 to 1998, 31,102 people received at least some
attention, but over time the programme appears to have got into difficulties and
several administrators have resigned in frustration. In January 2000 it was reported
that of the programmes original team of 14, only a nurse and social worker remain in
the team. Financial assistance from private and public agencies that help torture
victims have recently been limited purportedly due, in part, to a lack of matching
funds from the government departments.
The recent events surrounding the arrest of Pinochet have reportedly lead to hundreds,
if not thousands of people requesting the services of psychologists and
psychotherapist in order to deal with the effects of torture inflicted upon them under
the Pinochet regime.11
Non-Governmental Organisations
9
United States Department of State: Chilean Country Report on Human Rights Practices for 1997
Pinochet Case Reviving Voices of the Tortured, by Clifford Krauss Antiago, January 3 2000, The New
York Times
11
ibid
10
15
The non-governmental sector relating to victims and human rights issues appears to
be very active in Chile, with organisations such as the Association for Relatives of the
Disappeared, Association of Relatives of Politically Executed Persons, Center for
Mental Health and Human Rights, Chilean Human Rights Commission and the
Foundation for the Protection of Children Injured by States of Exception.
Memorials
Beginning in the early 1990s, the government erected a number of historical markers,
called sitios de memoria or memory sites, to remember those who had suffered and
died under the military's rule. These memory sites are public monuments, memorials,
and parks that commemorate and seek to place into the public record the memory of
the thousands of people who were disappeared, killed, and tortured during the
Pinochet years. The most important of these sites is Villa Grimaldi, an old villa on
the edge of Chile's capital city of Santiago, which the military transformed into a
major torture centre from 1974 to 1978. About 5,000 prisoners passed through Villa
Grimaldi, and it is known that 240 of them were killed or disappeared. In 1995, Villa
Grimaldi was commemorated as "Peace Park”.
There are other monuments in the Santiago General Cemetery, including "The
Memorial for the Disappeared", a high, long marble wall that stands at the entrance to
the Santiago General Cemetery, the city's most important graveyard. It bears the
names of the more than three thousand people disappeared or murdered in Chile after
the military coup. But rather than simply listing names like the Vietnam Memorial in
Washington, D.C., the Memorial for the Disappeared contains crypts in the wall.
When new bodies are uncovered, or identified as a part of ongoing forensic work in
the unmarked graves that are constantly being uncovered throughout Chile, those
remains are brought to the wall crypts and the name moves from "disappeared" to
"deceased."12
Summary
ß
Many unresolved issues remain in Chile with regard to victims issues, including
the non-prosecution of Pinochet and his followers for many years, leading to
much anger and frustration both within the country and amongst the Chilean
diaspora.
ß
Pinochet’s temporary detention in Britain did attract huge attention and raised
awareness of the unresolved human rights abuses which were undertaken under
his regime.
ß
Efforts have been made to address victims issues in a number of ways, including
the setting up of a Truth Commission, delivering reparations and creating
memorials to the dead. However, many of these initiatives have gone a shorter
distance that was hoped and envisaged and not all of the recommendations made
by the Commission have been fully implemented.
12
Information taken from Holding the Junta Accountable: Chile's "Sitios de Memoria" and the History of
Torture, Disappearance, and Death, Radical History Review, 79 (2001) 123-139
http://muse.jhu.edu/demo/rhr/79.1meade.html
16
GUATEMALA
Introduction
A poor country by Western standards, Guatemala has faced the impact of US backed
military dictatorships and counter-insurgency and guerrilla attempts against them
since the 1950s. Large-scale massacres, disappearances and scorched earth policies
have left a long legacy of pain and trauma for the present administration to deal with.
Attempts to deal with the past have come both from government and nongovernmental and church sources but all have faced challenges and criticisms and
calls for further transparency and accountability are commonly heard.
Background to the Conflict
Guatemala is the largest of the Central American countries, with a total population of
10.6 million. The country's highly unequal distributions of income, infrastructure, and
land contribute to low levels of health, education, and access to food. These
conditions, combined with slow economic growth, result in a very high level of
poverty, affecting around 80% of the population.
Guatemala gained independence after many years of Spanish colonial rule in 1821
and the country was subsequently ruled by a long succession of dictators. In 1899, the
United Fruit Company was formed as a merger between the Boston Fruit Company
and the Central American railway company, owned by a US entrepreneur, heralding
the beginning of long term involvement of the United States in Guatemala’s affairs.
In 1904, the UFC was awarded a 99-year lease to the country’s main railway linking
Guatemala City with their only Caribbean sided port. The company acquired many
hundreds of thousands of banana plantations and over following were given the full
support of successive military dictatorships within the country.
The first free elections were held in Guatemala in the 1940s with the office of
President acting as Head of State. In 1950 Jacabo Arbenz Guzmán was elected
President and began his term of office with a challenging programme of agrarian
reform which aimed to redistribute uncultivated land to the landless. The UFC, as the
country’s largest landowner, were obviously threatened by this policy, as only 15% of
their 550,000 acres was presently under cultivation. The government expropriated
400,000 acres, offering them a price in government bonds bases on the UFC’s own
official figures for the land, which they had grossly underestimated for their own tax
purposes. The UFC looked to their allies, the US administration, to act against the
Guatemalan government and a coup was instigated by the CIA in an effort to replace
the democratic system with a new dictatorship in which they could exert their
influence. This move was justified by the US government as a necessary step to
counteract the alleged communist tendencies of the Guatemalan regime. Arbenz was
overthrown and leadership transferred to a disaffected Guatemalan colonel Carlos
Castillo Armas.
17
Armas immediately reversed the agrarian reforms instigated by Arbenz and drove the
peasants back of the newly acquired land. What followed was a succession of
conservative military dictatorships which were heavily influenced and controlled by
private sector interests. A number of rebel groups during the late 1950s attempted to
overthrow these influences without success, however, in 1962 a new movement was
formed from the remnants of past attempts entitled the Revolutionary Armed Forces
(FAR). The FAR comprised of students, left wing activists and army dissidents, and
hoping to repeat Castro’s success in Cuba, they instigated a number of small-scale
insurgences in rural areas. By the end of the 1960s they were all but wiped out by the
army with the assistance of US support.
The 1970s saw a renewal of activity, however, and the guerrilla movement continued
to develop with a number of insurgent forces emerging, including the Guerrilla Army
of the Poor (EGP) and the Revolutionary Organization of the People in Arms
(ORPA). FAR itself was revived in the 1970s and in 1982, these rebel movements
formed an alliance called the Guatemalan National Revolutionary Unity (URNG).
Other non-violent groups also began to emerge during this time in support of the
Mayan (indigenous) people and peasant workers, such as the Christian group – the
Committee for Campesino Unity (CUC).
Despite this growing resistance to the Guatemalan leadership, the attacks on both the
Mayan peasantry and left-wing liberals continued, with tens of thousands being
tortured, murdered or disappeared completely during the 1970s. Counter-insurgency
forces under Colonel Carlos Arana Osorio were trained by American Green Berets
and the US administration supplied substantial financial aid for military intent.
Osorio’s tactics against the guerrillas provided so successful that the army elected him
President and the numbers of ‘disappeared’ continued to rise rapidly during his years
in office. The late 1970s and early 1980s saw a concerted effort aimed at
depopulating Mayan areas were the guerrillas were known to be operating. Entire
populations were deemed legitimate targets with an estimated 100,000 civilians either
killed or ‘disappeared’ in 1981-83 alone. Tens of thousands fled the country,
becoming refugees in neighbouring Mexico. The guerrilla movement was unable to
halt this offensive against the peasants, itself being badly armed and having the forests
from which they attacked systemically removed by the military.
By the mid 1980s, the large-scale massacres had ended as the army gained increasing
control over the countryside as a result of large-scale recruitment of local peasants
into militia gangs and so-called Civil Defence Patrols. Following a coup in October
1983, the current president General Romeo Lucas García was replaced with General
Oscar who introduced a new pacification plan entitled the ‘Plan of Assistance to the
Areas of Conflict’. This plan involved building new villages, promoting literacy and
use of the Spanish language, offering food for work, and improving sanitation. The
introduction of human rights and democratic reforms lead to US aid being reinstated
for the country. Although greatly reduced, the numbers of those killed or
‘disappeared’ still did not diminish completely and many thousands were still
unaccounted for and young people classed as orphans.
In 1984, a non-governmental organization called the Mutual Support Group (GAM)
was formed by relatives of the ‘disappeared’ but it remained deeply unpopular in
government circles and two of the group’s leaders were murdered, one body having
18
been found with his tongue ripped out. Members of the 22 indigenous groups in
Guatemala make up the majority of those ‘disappeared’ in Guatemala. The worst
years of violence were between 1981 and 1983 when the Guatemalan army carried out
a counter-insurgency campaign of massacres. Mass graves were created to dispose of
the bodies. In late 1985, new elections were held, leading to the replacement of
Mejía Víctories with Vinicio Cerezo Arévalo, from the Christian Democratic party.
However, before handing over power, President Mejía proclaimed a comprehensive
amnesty for ‘all people implicated in political crimes and related common crimes
during the period from 23 March 1982 to 14 January 1986. This amnesty covered the
death squads but not the Communist rebels, and was thus incomplete. It appeared that
Cerezo, during his four years in power, was unable to take full control of the military
who continued to attack the guerrillas, who now numbered around 2,000.
In 1987, following a series of meetings between heads of states of Central America
including Cerezo, the ‘Esquipulas II’ Accord, known as The Procedure for the
Establishment of a Firm and Lasting Peace in Central America was signed in
Guatemala City. This Accord included a number of measures to promote national
reconciliation, democratization, free elections, assistance for refugees and an end to
hostilities. In Guatemala the National Reconciliation Commission (CNR) was formed
and guerrilla groups such as the URNG began talks with government representatives,
put progress was slow. Many non-governmental organisations were formed or
strengthened during this time and the Catholic church was very outspoken in its
support for dialogue to move the peace process forward. In 1992, Rigoberta Manchu
won the Nobel Peace Prize for her work in defending the rights of the Guatemalan
indigenous peoples, increasing international attention on the situation in the country.
Peace Agreement
In 1994, UN-mediated peace talks began between the government and rebel forces
and the Agreement on a Timetable for the Search of a Firm and Lasting Peace in
Guatemala was signed.13 During 1994, three other substantial accords were signed,
including agreements on human rights, refugees and The Commission to Clarify Past
Human Rights Violations and Acts of Violence that have Caused the Guatemalan
Population to Suffer. During 1995 and 1996 a further eight agreements were signed
including The Law of National Reconciliation which contained provisions for
recognising the reparation rights of victims and exemption from criminal
responsibility for cases of forced ‘disappearance’, torture and genocide.14 This series
of accords culminated, on the 29th of December 1996, in the signing The Agreement
on a Firm and Lasting Peace which triggered the implementation of all the previous
agreements which had been drawn up during the previous years of negotiation.
According to Patrick Brogan ‘The rebels had won a great deal in the negotiations,
including extensive reforms of the constitution and justice system and other civil
rights. In exchange, they conceded sweeping amnesty for all crimes committed since
1954. Human rights advocates protested bitterly that at the least there should be a
13
For the full text of the Accords see http://www.incore.ulst.ac.uk/cds/agreements/latin.html
For more information on all the Agreements signed during these years, see Negotiating Rights: The
Guatemalan Peace Process: Accord, Conciliation Resources, 1997
14
19
powerful Truth Commission, like the ones in El Salvador, South Africa and Uganda,
but they were turned down. Instead, the Guatemalan Truth Commission would
investigate past abuses, but it was not allowed to name those responsible, let alone
punish them.’15
On the second anniversary of the signing of the peace accords, President Arzu asked
pardon of the Guatemalan people for abuses committed by the state during the armed
conflict.
Impact of the Conflict
The worst violations of human rights were committed from 1981-1983 when tens of
thousands of Guatemalans were murdered in scorched earth campaigns targeted
mainly at Mayan villagers. While there are no reliable figures on how many people
died in this war, current estimates suggest around 150,000. In addition, 50,000 people
'disappeared' during the conflict, over 400 villages were completely destroyed, at least
100,000 became refugees in neighbouring Mexico, and a further million were forcibly
displaced within the country.
Investigations of Disappearances
During the period of the conflict before 1996 a number of programmes aimed at
addressing the deaths and disappearances of thousands of Guatemalans were initiated
from various sectors. In the 1980s, the Catholic Church set up a human rights office
in order to investigate and document abuses by the state. In June 1994, an NGO of
relatives of Guatemala’s disappeared was formed, entitled the Mutual Support Group
(GAM). They gained much public support for their appeals and their call for a
commission to investigate the thousands of cases of ‘disappearances’ as a result of the
conflict. In 1985, the government, under General Mejia Victores, created a
commission to investigate the claims of disappearances. According to Wilson16, ‘The
Commission comprised a well-known conservative Catholic bishop, a member of the
military and an official of the Justice Ministry. After a period of inactivity - which
involved no actual interviews with victim's families - it dissolved itself, making no
formal report and stating it could not locate any of the hundreds of disappeared of
whom it had been notified. In a similar vein, the Supreme Court appointed an
'Executorial Judge' in 1986 to look into all writs of habeus corpus. When GAM filed
1,367 such writs, however, the new civilian president, Vinicio Cerezo Arévalo,
refused all further meetings with the organisation and cancelled plans for a new
presidential commission on the disappeared.’ When the URNG became involved in
peace talks during the late 1980s, they, along with many human rights organisations,
began to lobby for the setting up of a Truth Commission, which has already been
instigated in Argentina.
15
Brogan, P World Conflicts, (1999) Scarecrow Press, P496
Wilson R. ”Violent Truths: The Politics of Memory in Guatemala, Accord, Conciliation Resources,
1997
16
20
The Recovery of the Historical Memory Project (REHMI)
In April 1995, the Human Rights Office of the Archbishop of Guatemala began a
Project entitled The Recovery of the Historical Memory (REHMI) to investigate
human rights violations perpetrated against the civilian population. The project was
initially set up to provide material for the future CEH, however its underlying
mandate was to discover the truth and investigate those responsible. The whole
project, which would also investigate the patterns of violence during the war and the
compilation of a list of names of the victims, took three years. It also managed to
identify more than 300 mass graves across the country. On the 24th of April 1998, a
report entitled, Guatemala: Never Again was published as a result of the 5,180
testimonies gathered and 55,021 victims documented. Two days later, the project
General Co-ordinator, Monsignor Juan Gerardi was murdered. The findings of the
REHMI project were submitted to the Historical Clarification Commission for
investigation.17
Commission for Historical Clarification (CEH)
In June 1994, the agreement which established the Commission for the Historical
Clarification of the Violations of Human Rights and Acts of Violence which have
Caused Suffering to the Guatemalan Population was signed. Alongside investigating
human rights violations and acts of violence during the conflict, the UN-supported
Commission for Historical Clarification (CEH) was also mandated to make
recommendations aimed at supporting the peace process and national harmony, by
preserving the memory of the victims, promoting a culture of mutual respect and
human rights protection and strengthening the democratic process.
From the outset this agreement was criticised for its severe limitations and the
majority of human rights and other civic organisations in Guatemala were
disappointed and angry with the scope of this proposed Commission. Wilson
highlights five major flaws in the CEH. Firstly, stipulation that only abuses 'linked to
the armed conflict' should be investigated and thus rules out others such as journalists
and US citizens; secondly, the Commission would operate for only six months with a
possibility of extending its lifespan to a year, a very short period to investigate
violations over a 36-year period. Thirdly, the results of Commission investigations
were to be published in a report which would 'make objective judgements about
events during the period under consideration' – the issue of interpreting 'objectivity'
would be particularly difficult to achieve. Fourthly, popular sector groups were
angered by the lack of legal teeth for the Commission with the CEH having no powers
of search, seizure or subpoena.
Finally, the Accord stated that the work,
recommendations and report of the Commission 'will not individualise responsibility,
nor have any legal implications.' In effect, no one would be named in the final report
and information obtained by Commission investigators could not be employed in later
prosecutions.
17
For more information on REHMI see Should We Remember? Recovering Historical Memory in Guatemala by
Roberto Cabrera in Past Imperfect: Dealing with the Past in Northern Ireland and Societies in Transition Edited by
Brandon Hamber (INCORE, 1998) http://www.incore.ulst.ac.uk/home/publication/research/dwtp/index.html
21
The CEH began work in August 1997 with three Commissioners heading the
organization and an operating budget of $9.5 million, funded by the Guatemalan
government ($0.8 million) and international donors, including the U.S. ($1.5 million),
Norway ($1.34 million), Netherlands ($1.1 million), Sweden ($0.99 million) Denmark
($0.85 million), and Japan ($0.75 million). The Commission was separated into two
divisions - one to investigate violations during the war and the other to write a history.
The investigative staff, both Guatemalan and international, collected testimonies,
documenting over 42,000 victims of human rights violations and reviewed existing
information gathered by the REMHI Project and the Mutual Support Group (GAM).
The Guatemalan military provided extremely limited support to the Truth
Commission's work, claiming that documents on military operations had been
routinely destroyed and that other records had not been kept. Truth Commission
coordinator Christian Tomuschat complained on a number of occasions about the lack
of cooperation from the armed forces.
In February 1999, the Commission issued their findings. The full report entitled
‘Guatemala: Memory of Silence’ was over 3,500 pages, with a shorter (50-75 pages)
summary and recommendations available in English and Spanish. Within the report
they attributed 93% of the violence to the state, carried out by the army or by stateconnected civil patrols and death squads, whilst the URNG accounted for 3%. The
remaining 4% could not be attributed clearly to either side. The report declared that
during the height of the war, the violence was so strongly directed against indigenous
peoples that it could only be called genocide. Two days after the report was released,
leadership of the demobilized URNG guerrilla forces issued an official apology.
The report proposed a number of steps to be taken by the Guatemalan government,
including
ÿ Reform of the judiciary and security apparatus
ÿ The establishment of a special commission to investigate and take appropriate
measures concerning the conduct of the military during the armed conflict
ÿ The payment of reparations to the victims
ÿ The creation of an exhumation programme by the government
ÿ the creation of a national holiday to honour the war's 200,000 victims
While the Arzu government did reiterate an apology it had previously made,
following the truth commission's report, they did not issue any promise of reform. In a
full-page newspaper advertisement, the government claimed to be doing enough
already to address the issues raised by the commission. The government, whilst
accepting some of the recommendations, stated its refusal to implement two of the
commission's key recommendations: to create a commission to investigate and
sanction army officers involved in human rights abuses during the war, and to create a
commission to oversee all of the truth commission's recommendations.
Compensation and Reparations
In April 1999 a programme worth $2.6 million was approved by the legislature which
aimed to reimburse the families of civil war victims over a five year period. In
February 2000, it was reported that the money never got to the people it was intended
for. According to the U.N. Mission to Guatemala, some of the money was filtered to
22
''pilot programs'' designed to help get Indian communities back on their feet. The
governmental arm in charge of distributing the money could not account for the rest
of the money, according to the UN.18
In August 2000, the Guatemalan government accepted state responsibility for two
specific massacres and 16 individual executions and “disappearances” which occurred
during the conflict and agreed that the State would pay compensation to the relatives.
In September, Raul Molina Mejia19 reported that “Negotiations have begun between
the government, through the Presidential Commission on Human Rights
(COPREDEH), and relatives of the victims to determine the ways and amounts of
compensation, but human rights organizations and relatives of victims have made it
very clear that compensation is not enough and other forms of reparation must be
devised, including prosecution of those responsible for the crimes.” In November
2000, the Guatemalan government signed an agreement with the Inter-American
Commission on Human Rights (IACHR) admitting institutional responsibility for
human rights violations during the country’s civil war and promised to compensate
the victims. According to Claudio Grossman, President of the Organization of
American States’ IACHR, the Guatemalan government is obligated to investigate and
punish those responsible for these crimes. President Alfonso Portillo signed the
agreement declaring state responsibility for human rights violations in ten of the more
than 130 Guatemalan cases investigated by the IACHR. He promised to begin
negotiations with the victims or their families to obtain a friendly reparations
settlement. Part of the agreement obligates the State to continue the investigation into
those responsible for the violations, as well as update the IACHR every three months
on the progress of negotiations in each case and the legal proceedings.
Summary
ß
The Truth Commission and the work of the REHMI did go some way to dealing
with the legacy of the conflict. However, with few of the recommendations of
the Commission having been implemented to date, the country has a long way to
go to satisfy the requests for acknowledgement and accountability from the
victims and survivors.
ß
Although money has been allocated for reparations to the victims of the conflict,
it is not clear that it has reached those in need in any great measure.
ß
Impunity in Guatemala remains a significant obstacle in dealing with issues of
the past.
18
see article - One year after its release, Guatemalan "truth commission" report falls on deaf ears
http://www.unb.ca/web/bruns/9900/issue21/intnews/guatemala.html
19
Raúl Molina Mejía, former President of the National University San Carlos de Guatemala and Visiting
Scholar at Columbia University’s Institute of Latin American Studies.
23
MOZAMBIQUE
Introduction
Mozambique was at war continually from its independence in the mid-1970s until a
peace agreement was signed in 1992. A United Nations military and humanitarian
mission was sent to Mozambique to oversee the peace process in November 1994 and
the country has subsequently made great strides in consolidating the peace in the
country and developing and rebuilding all forms of infrastructure. The country has
been devastated by a series of droughts and floods and a significant percentage of the
population is living with the AIDS virus. With a population of 18 million, 51% of
which are under the age of 18, Mozambique has a large number of dependents to put a
strain on an already desperately poor economy. As a result of the day-to-day realities
in Mozambique, dealing with past atrocities does not appear to have been giving the
same priority as other post-conflict countries.
Background to the Conflict
In 1497, the Portuguese explorer Vasco da Gama was the first European to reach
Mozambique where they set up trading posts. By the 1760s slavery was the most
profitable trade and over a million slaves were sold to the sugar plantations in Brazil
and Cuba, and to north America. Mozambique became a Portuguese colony at the
Berlin Conference in 1884, and the colonisers rented land to British and French
companies, who in turn set up plantations growing cash crops such as cotton, and tea.
The colonial rulers raised income through heavy taxes and a brutal forced labour
system. After 1928, Portugal itself was ruled by António Oliveira Salazar’s fascist
regime which imposed strict controls over much of the country’s social and economic
life. Salazar's imperialist aims included the total control of Portugal’s colonies by
Lisbon and the exploitation of those colonies resources for the benefit of Portuguese
capitalists.
Rather than developing Mozambique, the Portuguese continued to simply rent out the
available resources, including human labour to its neighbouring countries, particularly
South Africa and Rhodesia. The rise in the growth of cash crops, which Salazar
encouraged, accompanied a drastic drop in food production, leading to widespread
famine in the 1940s and 1950s. The Portuguese made no pretence of social
investment in Mozambique, particularly in the area of schools or hospitals, unless
they were to serve the privileged classes. In 1960, Portuguese soldiers opened fire on
demonstrators protesting peacefully about tax rates and 600 people were killed.
The independence movement was born when a new African leadership emerged from
a cross section of the population to channel discontent against the colonial power. In
l962 Mozambican representatives from exiled political groups met and formed the
Mozambique Liberation Front, or FRELIMO (Frente de Libertação de Moçambique),
24
with Eduardo Mondlane as its president. FRELIMO sought to completely liberate the
country from Portuguese governance and launched a guerrilla-type military campaign
for independence from colonial rule. Portugal reacted with vigour and enormous
military strength and both sides won important victories and setbacks during the
following decade.
The war lasted over ten years, effectively ending in 1974 when the fascist regime in
Portugal was overthrown and the independent People’s Republic of Mozambique was
proclaimed on 25 June 1975 with Mr. Samora Machel, FRELIMOs leader as its first
president. The new leaders found the country was in ruins, however. Over 90 per
cent of Portuguese settlers left, taking everything they could. The country lacked
skilled professionals and infrastructure and its economy plummeted. FRELIMO
turned to the Communist governments of the Soviet Union and East Germany for help
and set about rebuilding health and education services with little experience or
resources.
Almost immediately the country was plunged into civil war, with FRELIMO fighting
against the Mozambique National Resistance (RENAMO), which was backed by
South Africa and Rhodesia (Zimbabwe). REMANO’s aim was the wholesale
destruction of Mozambique's social and communications infrastructure and the
eventual overthrow of the government. Tensions between Mozambique and Rhodesia
and South Africa grew as both countries sought to destabilise Mozambique for
harbouring bases of their respective independence movements. The result was a
devastating war in which many thousands of civilians were injured and killed.
Schools, health-centres, railways, and roads were destroyed compounded by the fact
that the country suffered periods of severe drought and food shortages.
The early 1980s saw a major escalation of RENAMO's activities from rear bases in
South Africa and Malawi. It was during this period that RENAMO acquired its
reputation for characteristic brutality - gruesome and gratuitous acts of violence mutilations, public executions, massacres, and sexual violence - instilled terror in the
local population. By the early 1980s Mozambique was nearly bankrupt and the
drought and famine of 1983 completely destabilised the country. RENAMO attacked
relief trucks and burned grain stores. FRELIMO gradually yielded to the pressure and
began opening up to the west, which responded with infusions of food. In November
1986, following the sudden death of President Machel, Frelimo appointed Joaquim
Chissano, the former minister of foreign affairs, president. A number of attempts to
come to agreement were initiated during the late 1980s and early 1990s, but all ended
in a return to violence without delay.
Peace Agreement
Eventually, with the country brought to its knees, a peace agreement was signed in
1992 by the leaders of both FRELIMO and RENAMO. This brought an orderly end
to the war, provided for a general cease-fire which would come into force
immediately after ratification of the treaty by the assembly of the republic, the
disarmament of RENAMO soldiers, the integration of both armies and the holding of
successful multi-party elections.
25
The General Peace Agreement20 was signed on the 4 th of October 1992 in Rome, and
deals with issues such as formation of political parties, ceasefires, electoral
procedures, formation of a new defence force and demobilisation. The introduction to
the Agreement states that The President of the Republic of Mozambique and the
President of Renamo undertake to do everything within their power for the
achievement of genuine national reconciliation. However, there is no overt reference
to how the signing parties would deal with the issue of victims of the conflict. Indeed
the only paragraph which refers to the needs of those affected by the conflict states in
Protocol VII that ‘The parties decide to request the Italian Government to convene a
conference of donor countries and organisations to finance the electoral process,
emergency programmes and programmes for the reintegration of displaced persons,
refugees and demobilised soldiers.’
Post-Settlement
The United Nations sent a large military and humanitarian mission entitled the United
Nations Operation in Mozambique (UNOMOZ) in 1992 to oversee the peace process
and the national election which were eventually held in November 1994. These
elections resulted in the selection of the head of FRELIMO, Joaquim Chissano, to the
presidency and UNUMOZ was phased out and acknowledged as being a very
successful mission. Chissano later won a second term in December 1999. RENAMO
accepted the peace accord and organised itself into a political party capable of
contesting the national elections and prepared to function as an opposition afterwards,
which they have proven to be.
In terms of the maintenance of peace, the country has remains remarkably stable
following the settlement, however, it has had to contend with a series of natural
disasters which have hindered the country’s recovery and development. In February
and March 2000, the country suffered from devastating rains and floods, which have
further compounded the daunting economic challenges that it faces.
Impact of the Conflict
By the time the peace agreement was signed, Mozambique was the poorest country in
the world, being the most dependent on overseas aid, which made up 80 per cent of its
foreign exchange flows. The social infrastructure has been devastated in numerous
ways.
Between 1974 and 1992, an estimated one million people had lost their lives through
violence, hunger and disease. An estimated six million Mozambicans were displaced 4.3 million internally and 1.7 million as refugees across into neighbouring Malawi,
South Africa, Swaziland, the United Republic of Tanzania, Zambia and Zimbabwe.
Schools and hospitals were burned out and industry was left in ruins. Long after peace
returned to Mozambique, the number of war casualties continued to grow. Civilians,
especially women and children, were the main victims of landmines that had been
20
For the full text of this agreement see http://www.incore.ulst.ac.uk/cds/agreements/africa.html
26
buried throughout the country. These have claimed over 10,000 lives and wounded
many more.
Many of those who lived through the long civil war suffered a variety of war related
trauma, including the forced removal from their homes, witnessed horrific killings or
mutilations of family or friends, women were the victims of widespread rape and
sexual abuse. The war specifically targeted children. Many of the 7 million children
under age 14 and 1,650,000 under 19 witnessed atrocities or were forced to commit
them, causing widespread psychological trauma. Children were often kidnapped and
forced into the service of the rebel armies. The war left many children orphaned
leaving its own scars and ensuring them as an easy target for rebels to recruit very
young people into their ranks.
Since the signing of the Peace Agreement, many of the estimated 1.7 million refugees
returned to the country voluntarily under the auspices of the UNHCR. In May 1995
UNHCR reported that the vast majority had returned to Mozambique from six
southern African countries.
Prosecution of Perpetrators
Accountability for human rights abuses inflicted during the civil war are discussed
and debated in the country’s media, yet both FRELIMO, RENAMO and many church
and traditional religion groups appear to advocate impunity, arguing that this made
possible healing and reconciliation at the local level through healing ceremonies and
other rituals. Both FRELIMO and RENAMO have skeletons in their own closets and
are, according to reports, resigned to forgetting the past and have accepted the present
situation in which attempts to deal with the past are deferred.
Impact of Landmines
Some land mines date from the independence war of the 1960s and 1970s, although
most were planted by RENAMO or government forces between about 1977 and 1992.
Neither side kept any record of the mines they planted and so estimates of how many
are still present in the land of Mozambique is unclear. Until 1995, the most widely
cited number of landmines in Mozambique had been the 1992 UN estimate of more
than two million. However, in 1994 the HALO Trust estimated that the actual number
of landmines was likely to be significantly lower, and in June 1995 the UN announced
a revised figure of one million. Some NGOs argue that the UN estimates are still
highly exaggerated and should be lower.
In turn, no true indication of landmine casualties for all provinces exists, and there are
wide variances reported. Estimates suggest that around 10,000 people have become
landmine victims since the signing of the peace accord and between 40 to 50 new
deaths or casualties occur per month. According to Human Rights Watch landmines
constitute one of the most immediate obstacles to postwar redevelopment, and hinder
delivery of relief aid, resettlement, and agricultural and commercial reconstruction. A
limited number of mines have continued to be planted since the peace accord, by both
government and RENAMO forces.
27
It is stated that the Mozambican government is engaged and committed to the issues
of humanitarian demining. In October 1995 President Chissano announced that
Mozambique was prepared to head an international campaign against antipersonnel
mines, but little concrete action was taken for the next year and one-half as the
Mozambican military wanted to retain the option of using landmines. In February
1997, Mozambique hosted the Fourth International NGO Conference on Landmines
where Mozambique's foreign minister announced an immediate ban on the use,
production, import and export of antipersonnel mines. However, destruction of
Mozambique's stockpile was not addressed.21
In 1995, the government created a National Mine Clearance Commission, later called
the National Demining Institute, to coordinate mine action activities, to oversee mine
awareness, mine clearance, mine assessment and survey, and victim assistance
programmes. The government is funding CND salaries with assistance from the
UNDP. Much of the demining efforts and programmes in support of mine awareness
and education since the early 1990s have been initiated and conducted by a variety of
NGOs and by the UNOMOZ and later the United Nations Accelerated Demining
Program (UN/ADP). The recent spade of devastating floods in Mozambique have
added an additional problem to the many facing the Mozambican people. The level of
rain and flooding has meant that many buried mines have not been exposed, mines
have shifted from their old positions and have ended up in areas previously considered
clear and safe and many sections which has been marked for clearance have been
swept away or destroyed.
Health and Psychological Services
During almost thirty years of armed conflict, 36% of Mozambique's health facilities
were destroyed. As a result, the health service in Mozambique is still underdeveloped
and poorly funded and a high fatality rate among mine casualties still exists. UNICEF
has reported that nearly 60 percent of all victims die before they can receive
appropriate first aid as many facilities are often inaccessible because of lack of
available transport. It is estimated that more than 25 percent of all households were
affected by landmines, and more women than in any other country surveyed were
victims.22 The focus of assistance is placed on physical rehabilitation
- on fitting
amputees with prosthetic devices - and little financial and technical resources are
available for systematic physical therapy. The government relies heavily upon NGOs
to meet its rehabilitative needs.
Programmes for the disabled, including landmine survivors, continue to develop in the
eleven provinces of Mozambique. While many local and international NGOs are
involved in trying to integrate the disabled into mainstream society, many new
programmes have not been implemented because of a lack of funding and programme
support.
21
Source: Human Rights Watch World Report 1998
22
Community Information Epidemiological Technologies (CIET) International survey, 1996
28
The government run a number of other schemes to deal with some of the legacies of
the conflict. One scheme, entitled the Home Visit project and launched in February
1995, is run under the auspices of the Ministry of Social Welfare and aims to assist in
the integration of former child soldiers and other children orphaned, displaced, injured
or traumatized by war into civilian life. The programme steers children towards
appropriate assistance which may take the form of medical treatment, counselling,
schooling or vocational training. This programme has been supported financially by
UNICEF.
Two main associations addressing social and psychological issues of people with
disabilities in Mozambique. The Association of Disabled People of Mozambique
(ADEMO) was established in 1989 and strives to build public awareness and confront
cultural and public resistance to social, educational and economic integration of the
disabled, including landmine survivors, into mainstream society and the Mozambican
Association of Military Disabled (ADEMIMO), established in 1992, works with
former soldiers who were disabled during Mozambique's civil war. The goal is to reintegrate the soldiers into civilian life by helping them recover from war trauma and
gain acceptance in their communities.
Compensation and Reparations
An initial search for reparation initiatives in Mozambique did not uncover many
schemes to compensate those for losses inflicted as a result of the conflict. However,
ex-military personnel with disabilities have special legal status and are entitled to a
small state pension, though they often experience difficulties and delays in receiving
it. The rest of the disabled population does not receive state pensions and there is
minimal assistance for amputees. There are both local and international organizations
lobbying the Mozambican government to provide services to landmine victims, with
some organizations focusing specifically on veterans and military personnel. 23
Summary
ß
Mozambique remains an alarmingly poor country with approximately 80 percent
of the population employed in agriculture, mostly on a subsistence level, and
approximately 75 percent of the population living well below the poverty line.
ß
Building a peaceful society in Mozambique appears to have proceeded relatively
well since the signing of the peace accords. Whether this peace can be sustained
will rest, to some extent, on how the country deals with the legacy of the conflict
and provides for future generations.
ß
There has been little effort to deal with the human rights atrocities,
disappearances and deaths inflicted during the conflict to date.
ß
The economy, which has shown steady improvement in recent years, appears to
be the Government's main priority.
23
Much of this information on assistance for landmine victims is taken from the Landmine Survivors
Network Database – www.lsndatabase.com
29
ß
The government considered the international agencies as essential partners in the
task of rehabilitating and rebuilding the country, not the least because they
provided funding.
ß
Although the Mozambican government has initiated some projects it appears
that most of them our overseas funded.
30
RWANDA
Introduction
The scale of the devastation from the conflict in Rwanda, a small and previously little
known country, is unimaginable to many with an estimated 800,000 dead within the
space of 100 days. It is therefore unsurprising that the efforts to rebuild the country
since the 1994 genocide will have to be long term and long reaching and that the
efforts so far will have to be developed and expanded as more refugees return to the
country.
Background to the Conflict
Rwanda is the most densely populated nation in Africa. Very poor, it ranked 168 out
of 174 in the Human Development Index according to the United Nations Human
Development Report for 2000. The adult literacy rate is 40 percent and life
expectancy is a mere 42 for men and 45 for women.
Prior to the genocide of 1994 the population of Rwanda was approximately 7.15
million and was one of the most densely populated countries in sub-Saharan Africa.
They also had an estimated two million living as refugees in neighbouring countries.
Rwanda is made up of three groups known collectively as the Banyarwanda people.
Although sharing the same culture, Bantu language and linguistics, living in mixed
ethnic areas and inter-marrying, these Banyarwanda people have long been divided
into three distinct groupings, the Hutu, the Tutsi and the much smaller grouping of the
Twa.
Traditionally seem has having distinct physical features from each other, the physical
differentiation between these three groupings would later be mistakenly used in
pseudo-scientific terms, as one method of identifying Tutsi and Hutu and thus
determining who lived and died. In pre-colonial times what actually separated Tutsi
and Hutu in the past was primarily a matter of occupation and wealth. By the late
nineteenth century Rwanda was beginning to take on the form of modern state, with
the king as head of state, yet with political and social control becoming more and
more centred in the hands of the Tutsi group. The Germans claimed Rwanda and
Burundi as part of German East Africa from 1890 after the Congress of Berlin.
However, their administrative control was light and they were easily manipulated by
the existing chiefs. As a result the powers of the Tutsi chiefs continued to increase to
the detriment of the Hutu majority.
Belgian troops occupied Rwanda in 1916 and following World War One RuandaUrundi was assigned to Belgium as part of the League of Nations mandate, later to
become a Belgian ‘Trustee Territory’ after the creation of the United Nations in 1945.
Unlike the Germans, the Belgians invested considerable time and effort in the
development and control of their colony and it was during the colonial period that a
cash economy was established. They successfully pursued a policy of divide and rule,
consolidating the power of the Tutsi monarchy and an administration containing
31
predominantly Tutsi civil servants. People classified as Tutsi were systematically
favoured in the education system to which the Hutu were largely denied.
In 1959, civil war erupted between the Tutsi and the Hutu, and thousands of Tutsis
were forced into exile. In a reversal of support, the Belgian government sent in troops
who put a quick end to Tutsi rule in Rwanda and the country was declared a republic
in January of 1961. A UN-supervised referendum in September 1961, led to the
adoption of a republican constitution under Hutu leadership and marked the
continuing polarisation of the two ethnic groups. The trusteeship status was formally
terminated and Kayibanda became President of independent Rwanda on 1 July 1962.
Notions of development and political socialism were disregarded by Kayibanda and as
time went on Rwanda became, to all intent and purposes, a corrupt one-party state.
Institutionalized discrimination of Tutsis was extensive and occasional violent attacks
by the Tutsi led to vicious retaliation. The most critical voices to be heard of the
Kayibanda regime appeared to be coming from outside of the country. It is estimated
that before 1962 there were already around 120,000 Rwandese refugees in other
countries. Although impossible to gauge accurately the number who left between
1962 and 1990, mostly to the neighbouring countries it appears the number was at
least half a million. As many as 200,000 Rwandans (overwhelmingly Tutsi) settled in
Uganda.
In December 1963 an invasion of Rwandan exiles in Uganda, attempting to carry out
a coup, was easily defeated. The government proclaimed a state of emergency,
rounding up and shooting Tutsi leaders suspected of complicity with the guerrilla
attackers. By early 1964 Hutu reprisals led to the deaths of thousands of Tutsis and
drove tens of thousands into exile in neighbouring countries. Throughout the 1960s
the situation in the country remained tense as the Tutsi continued their attacks leading
to brutal and wholesale reprisals against Tutsi within Rwanda.
A bloodless military coup, led by Juvénal Habyarimana, took place in 1973, placing
him in the position of President. The new government pledged to put an end to tribal
hostility, yet the Hutu control of power and Tutsi scapegoating continued. A new
constitution was introduced in 1978 and elections held in 1981. During the 1980s
Rwanda's economy deteriorated sharply and in October 1990 the rebel Rwandan
Patriotic Front (RPF), make up of Tutsi troops who had become refugees during the
1960s and 1973, invaded from Uganda, plunging the country into civil war. The
Presidents monolithic grip on power was loosening. Negotiations between the
government and the RPF began in 1992 in Arusha, Tanzania and between September
1992 and January 1993 the preliminary discussions dealt with power-sharing
arrangements. An agreement was reached under which a Hutu dominated transitional
assembly was to be set up until elections were held. After more fighting and a new
ceasefire being reinstated, another round of negotiations took place leading to the
signing of the Arusha Peace Accords. 24 This agreement called for the formation of a
broad-based transitional government, including members of the RPF, by the end of
1993. Extremist Hutu leaders refused to share power, however, and the transitional
government was not installed.
24
For the full text of the Arusha Accords, see http://www.incore.ulst.ac.uk/cds/agreements/africa.html
32
On October 1993, the UN Assistance Mission to Rwanda (UNAMIR) was created
under Resolution 872 with a mandate which included monitoring the ceasefire, the
establishment of an expanded demilitarised zone and demobilisation procedure,
general responsibility for security, and the repatriation of refugees; clearing of mines
and co-ordinating humanitarian assistance; and investigating non-compliance with the
agreement to integrate the armed forces and an investigation into human rights abuses.
The UN committed themselves to providing 2,500 Blue Helmets to Rwanda by the
end of March 1994. UNAMIR’s mandate would end following national elections and
the installation of a new government in Rwanda, which they estimated would be
established between October 1995 and December 1995. On 10 December 1993 the
government and the RPF issued a joint declaration reaffirming their commitment to
the provisions of the Arusha Peace Agreement and to the setting up on a broad-based
transitional government and Transitional National Assembly (TNA) before 31
December 1993. The signing of the Accords did not have the desired effect and
violence continued as the Rwandese polarised even further both between ethnic
groups and intra-party between moderate and more extremist.
On 6th of April President Habyarimana of Rwanda and President Cyprien Ntaryamira
of Burundi were returning from Das-es-Salaam, Tanzania having attended meetings
regarding the implementation of the power-sharing agreements of the Arusha
Accords, when their plane was shot down as it approached Kigali airport. All on
board were killed. Rwanda's presidential guard, which opposed the sharing of power,
was generally held responsible. A number of moderate Hutu politicians, including the
acting prime minister, were killed on April 7, and in the months that followed the
army, the presidential guard, and extremist Hutu militias killed hundreds of thousands
of civilians, most of them Tutsi. The massacres, were highly systematic, as they
moved rapidly from area to area working their way down the list of ‘enemies’ to their
regime. A substantial proportion of those who were massacred died as a result of lowtechnology weaponry especially machetes, clubs studded with nails, knives and spears,
making it a highly personal and intimate form of killing. The Tutsi dominated RPF
resumed its military campaign and hundreds of thousands of Rwandans—both Hutu
and Tutsi—fled to neighbouring countries. By late July 1994, when the RPF
announced a cease-fire and declared victory, it was estimated that there were more
than two million refugees.
The refugee camps, particularly in Zaire (now the Democratic Republic of Congo DRC) were enormous and a whole new set of problems was created within them –
including control by the militia, the spreading of disease and hostility with the host
countries. In 1996, the Tanzanian government forced over half a million refugees
back to Rwanda. In eastern Zaire, the remaining refugees fled the camps in late 1996
when fighting broke out between two Zairean factions. Tens of thousands of refugees
died during the return home, many of disease and exhaustion. By 1997, Hutu
extremists were launching almost daily attacks into Rwanda from across the DRC
border. The Rwandan government moved hundreds of thousands of people in northwestern Rwanda into supervised camps and in late 1998, ordered them to move to
officially designated villages, against the traditional rural social structures of Rwanda.
Most of these villages did not have essential services such as water or schools, yet
people who resisted the relocation were fined or imprisoned.
33
In early 1999, the Rwandan government organised the first elections since the
genocide, dealing with local level power. Under the 1994 Arusha Accords, the
government in power had a five-year mandate and in mid-1999, Rwandan's leaders
decided that the current government would remain in power for at least another four
years. A new constitution is currently being drafted for Rwanda and should be
completed before the upcoming parliamentary and presidential elections.
Impact of the Conflict
In one hundred days, an estimated 800,000 people - most of them Tutsi and moderate
Hutu - were slaughtered. Entire families and villages were wiped out and many
people were left without parents, children, brothers, sisters, extended families or
neighbours. All social classes were targeted for slaughter including doctors, nurses,
church leaders and politicians.
The impact of the conflict on the surviving Rwandan population is, obviously,
devastating and few of the six million survivors of the genocide have not been
touched. In a survey conducted by the Harvard School of Public Health Refugee
Trauma Program/ University of Rwanda in 1995, 97% of survivors interviewed had
lost a close relative. For those that survived, they now endure the loss of, often,
multiple family members and friends and memories of the acts of brutality which they
witnessed first hand or were perpetrated against them. Homes were destroyed and
many fled the homes in fear of their lives and became either internally displaced or
refugees in neighbouring countries. Not surprisingly, many of the survivors display
the signs of suffering from post traumatic stress and chronic traumatic grief.25 A
recent report26 states that mental disorders, including epilepsy and PTSD have
increased greatly in the country since the 1994.
Males were particularly targeted for slaughter, leaving a population in Rwanda of
70% female. It is currently estimated that 34 percent of Rwandan households are
being headed by genocide widows and wives of detained genocide suspects.27
Females were not spared however, and rapes and sexual violence were used on a
massive scale as a weapon. To add to the devastation, it has recently been uncovered
that a deliberate goal of spreading the AIDS virus and other STDs was used by the
perpetrators to prolong the suffering even further. Many of those who contracted the
disease are now faced with the prospect of their children losing their only surviving
parent to the disease. A large number of women became pregnant as a result of rape
during the genocide. Pregnancies and childbirth among extremely young girls who
were raped have also posed health problems for these mothers.
An estimated 300,000 children are being raised without parental care or assistance,
many of them members of the estimated 60,000 to 85,000 child-headed households in
Rwanda. These are children who are living on their own, in groups or families, the
vast majority of whom lost their parents in the genocide or due to illness when they
25
For more information on the psychological impact of the genocide see article After Genocide in Rwanda: Social
and Psychological Consequences, Athanase Hagengimana, M.D.
(Harvard School of Public Health Refugee Trauma Program/ University of Rwanda), Institute for the Study of
Genocide, Association of Genocide Scholars at www.isg-ags.org/index.html
26
Mental Disorder Cases Increasing in Rwanda, Pan African News Agency, April 22, 2001
27
Widows Head 34 Percent Of Rwandan Households, Pan African News Agency, April 17,2001
34
were living in refugee camps. Three-quarters of these households are headed by girls.
An estimated 3,000 to 3,500 children as also living on the streets of the big towns and
cities, like the capital Kigali. Many of these children are also orphans who lost their
parents in the genocide or from diseases in the refugee camps and a number of them
have parents in jail as a result of their participation in the killings. In 1995, the
government put into place a policy to sensitise Rwandan families to take on these
orphaned children. As a result, about 80 % of the identified orphan children were
taken in by foster families. However, problems have emerged within a number of
these foster families with the children having been mistreated and abused by their new
family. More than 70,000 Rwandans are now living with disabilities from the
country's war and genocide, accidents, or childhood problems, according to an official
study conducted by the Rwandan Social Affairs Ministry. This represents a doubling
in physical disabilities since the 1994 genocide.
The country also still houses many who perpetrated these acts on others and they too
carry the legacy of what they did during that frenzied time. According to Rwandan
government figures and the UN High Commissioner for Human Rights, there are
currently about 120,000 people being held in 18 central prisons and over 200 in local
and police jails. The vast majority of them is being detained on suspicion of active
participation in the genocide. Many more have not been prosecuted for any crimes
and live amongst the survivors of the genocide.
International Criminal Tribunal for Rwanda
In response to the genocide of 1994, the UN Security Council, acting under Chapter
VII of the United Nations Charter, set up a war crimes tribunal known as the
International Criminal Tribunal for Rwanda in Arusha, Tanzania in November 1994.28
The aim of the tribunal is the prosecution of persons responsible for genocide and
other serious violations of international humanitarian law between 1 January 1994
and 31 December 1994 and, according to the Security Council, the Tribunal is also
designed to contribute to the process of national reconciliation in Rwanda and to the
maintenance of peace in the Great Lakes Region.
The Tribunal consists of three organs: the Chambers and the Appeals Chamber; the
Office of the Prosecutor, in charge of investigations and prosecutions; and the
Registry, responsible for providing overall judicial and administrative support to the
Chambers and the Prosecutor. The three Trial Chambers and the Appeals Chamber are
composed of judges elected by the General Assembly from a list submitted by the
Security Council. They are initially selected from a list of nominees submitted by
Member States of the United Nations. The General Assembly of the United Nations
allocated a total budget of US$79,753,900 and 810 posts for the year 2000.
The Tribunal did get off to a very slow start, due in part to a severe shortage of
qualified personnel and a lack of international monetary support. The Tribunal has
come up against a huge number of complaints of incompetence and corruption since
its establishment and a number of judges have resigned in frustration at the alleged
28
see www.ictr.org for up to date information on the Tribunal
35
inefficiency of the Tribunal. Following a scathing internal UN review, the procedures
of the Tribunal were improved and new staff members brought in.
The ICTR's has indicted or arrested most members of the interim government that
planned the genocide in 1994. To date, the ICTR has secured the arrest of over 40
individuals including the former Prime Minister and several other members of the
interim Government of Rwanda during the genocide as well as senior military leaders
and high ranking government officials. In 1998, the Tribunal convicted its first
suspect, a former Mayor who was found guilty of nine counts of genocide, crimes
against humanity and war crimes. It was the first time an international court
convicted someone on genocide charges, and the first time an international court
found the crime of rape to be an act of genocide. A very small number of genocide
suspects have been tried and sentenced by the Arusha tribunal thus far. The
maximum sentence the tribunal can pass is life imprisonment. Wishing to keep the
incarceration of those found guilty within the continent of Africa, the ICTR signed an
agreement in February 1999 with the Republic of Mali to provide prison facilities for
the enforcement of the Tribunal’s sentences. A similar agreement was signed with
Benin in August 1999 and negotiations with other countries are underway.
The statute of the International Criminal Tribunal for Rwanda does not contain
provisions concerning compensation for victims of the genocide or their families.
Government Assistance to Victims and Survivors
Initially Rwandan society regarded the issue of trauma as low priority. Many of those
who were trained psychologists, psychotherapists or other mental health professionals
had either been killed or had fled the country during the conflict. Even if the
authorities had wanted to address the problem, the infrastructure will take a long time
to rebuild.
In June 1995, the government, through the Ministry for Health and with the assistance
of UNICEF, established a Trauma Recovery Programme in order to deal with the
huge numbers of survivors of the genocide who were suffering the effects. The
founding of the National Trauma Centre at Kigali is the major part of this programme
which provides psychosocial and trauma recovery interventions. Given the sheer scale
of the problem, the centre decided to train counsellors and assign them to different
parts of the country in order to inform the people about trauma and post-traumatic
stress disorder, to help people recognise the symptoms and to give them the tools to
help themselves.29
With a lack of funds, individual therapy is not an option they can provide, although
the centre estimates that 4 to 10 percent of Rwandans are so traumatised that they
require this type of treatment. Financial and personnel support from both the
international community and the Rwandan government remains a problem for the
centre.
29
For a summary of the UNICEF evaluation of the Trauma Recovery Programme see Tackling New Evaluation
Challenges: Rwanda Trauma Recovery Programme, Previews, April 1998, Vol 2. No1
36
The government has recently stated its intentions to appoint an MP to represent the
disabled population of Rwanda in Parliament.
Reform of the Justice System
The situation within the prisons is also a huge human rights issue for the country.
Most of the prisoners are being held in unbearable conditions, even by African
standards. Poor infrastructure, facilities and overcrowding are the norm in most
prisons. Since 1994, many people have been held without a single charge being
brought against them. Rwanda's judicial system is overwhelmed by the number of
genocide suspects with many lawyers, prosecutors and judges being were killed
during the genocide or who died in the exodus. Some 125,000 people are currently
held in Rwandan jails, of whom 115,000 are accused of genocide and crimes against
humanity. Over 4,000 children are in detention in prisons subjected to the same
vagaries as adult detainees.
Rwanda, which runs a trial system separated from the ICTR, has so far tried and
sentenced about 3,000 suspects. More than 500 people were sentenced to death and
over 20 of the convicts were publicly executed. The genocide suspects are
categorised according to the crimes they are accused of. The categorisation was meant
to ease pressure on the criminal justice system but not much has been achieved in this
regard. In category one are the planners, organisers, instigators, supervisors and
leaders' of the genocide. In April 2001, a newly published list of suspects contained
2,898 names. Those in categories 2-4 are accused of involvement in slightly less
serious crimes. Category Two consists of "persons whose criminal acts or whose acts
of criminal participation place them among the perpetrators, conspirators or
accomplices of intentional homicide or of serious attacks" which caused death or were
intended to cause death. Category Three is of those who allegedly committed or were
accomplice to serious attacks, without the intention of causing death to victims, while
Category Four is of people suspected of "having committed offences against assets".30
The categorisation is based on the Genocide Law of Rwanda and covers the period
from October 1, 1990 to December 31, 1994. To date, thousands of suspects have not
been apprehended, in particular several suspects under category one - the planners,
organisers, instigators, supervisors and leaders of the genocide.
Revival of Gacaca
A pre-colonial system of justice called the gacaca has recently been revived in
Rwanda in order to deal with the enormous justice problems within the country. It
was clear that the present tribunals and systems of justice could not cope with the
huge numbers of people incarcerated for acts of violence and some new provisions
would have to be made. The ancient system of gacaca is a local conflict-resolution
process in which the perpetrator and victim go before a group of elders, there is an
acknowledgment of the harm done, and a determination on the punishment of the
perpetrator and compensation for the victim is decided. In deciding penalties, the
judges will take into account time already served; those who confess will benefit from
30
Rwanda Plans Impressive Logistics For New Court System, Hirondelle News Agency (Arusha), April 30, 2001
37
a reduced sentence; convicts will also be allowed to perform community service as
part of their sentence; those convicted of crimes against property will be expected to
pay restitution for the damage they caused; those who do not have the means to pay
restitution and will perform community service.
There are plans to create some 11,000 grassroots courts with between 250,000 and
300,000 elected judges when it launches the gacaca project. It is proposed that, when
all the legislation necessary to enact the scheme are passed, the training of judges will
begin and the courts should begin their work by the end of September 2001. Gacaca
courts will be responsible for trying suspects classed in Categories Two, Three and
Four.
Truth Commission
The Rwandan government has made some steps to investigate the possibility of
instigating a Truth Commission in Rwanda. In September 1996, a delegation from the
South African Truth and Reconciliation Commission visited the country in order to
provide the government with more information on their work and to assist them in
formulating a reparation policy to deal with the victims of the genocide. A
government delegation from Rwanda's ongoing war crimes tribunal in turn visited
South Africa in January 1997 to discuss possible areas of cooperation between the
Rwandan tribunal and the Truth and Reconciliation Commission (TRC).
Establishment of Other Commissions
The Rwandan government has established two new Commissions which aim to assist
the post-conflict situation. Firstly, the National Human Rights Commission
(Commission nationale des droits de l'homme, CNDH) was constituted in law in May
1999. The Commission has a strong mandate which ensures its independence. The
CNDH has a wide remit including training in various human rights areas and
investigation of violations of human rights man rights areas. The CNDH is now
receiving petitions on a wide range of issues; these petitions have come from relatives
of people arbitrarily detained or who have allegedly disappeared, asylum-seekers and
persons involved in property disputes.
Secondly, and in recognition of the need for reconciliation in Rwanda, the
government has instigated the establishment of the National Unity and Reconciliation
Commission (Commission pour l'unité nationale et la réconciliation, CUNR) with a
primary aim of removing the divisiveness of ethnicity from Rwandan life. The
Commission has initiated a nationwide process of consultation to give people at all
levels of society the opportunity to speak their minds about what reconciliation
requires. Forums are being held for a host of groups and speakers have emphasized
the need to deal not only with Hutu-Tutsi tensions but also economic conditions and
other societal divisions, such as that between Tutsis who were survivors and those
who returned from other countries.
38
Memorials
The first week of April is officially designated each year as a period where the victims
of the genocide can be mourned. A new public memorial site in which the remains of
tens of thousands of people will be reburied in a mass grave has been identified by the
government. This reburial programme in a site in the capital, Kigali, is part of a
nationwide programme to give genocide victims their last rites, identified remains
over to families or by burying anonymous victims together at memorial sites spread
across the country. The partial remains of an estimated 200-thousand people in Kigali
alone were exhumed and reburied in newly-constructed tombs in 2000 in the planned
national memorial site, which is topped with a large cross.
Reparations
Calls for reparations to be paid to Rwanda from the actors in the international
community for their roles before, during and since the genocide have become
increasingly common in recent years. A report commissioned by the Organisation for
African Unity (OAU) and prepared by a seven-member International Panel of
Eminent Personalities, entitled Rwanda: The Preventable Genocide,31 calls for the
establishment of a commission to determine a formula for reparations and to identify
which countries should be obligated to pay. The funds paid, as reparations, should be
devoted to urgently needed infrastructure developments and social service
improvements on behalf of all Rwandans, according to the report. In response, the
Rwandan President Paul Kagame called on the OAU to follow up the
recommendation on reparations in July 2000 since they had commissioned the report.
Summary
31
ß
The Rwandan case poses special problems because of the large number of
citizens that actually participated in the genocide and the level of destruction and
trauma which the conflict had on the victims.
ß
The International Criminal Tribunal for Rwanda has tried only a handful of
high-profile accused thus far and gives the impression that the international
community is more interested in symbolic action against war crimes than in real
justice for the majority of victims of the conflict in Rwanda.
ß
There has been some investigation made into the possibility of a South African
style Truth Commission for Rwanda but it appears to be in the very early stages
of development, and at this stage it is uncertain whether or not it will develop.
for the full text of the report, see www.oau-oua.org/Document/ipep/ipep.htm
39
SOUTH AFRICA
Introduction
One of the most closely examined examples of how a country deals with its past,
South Africa instigated a Truth and Reconciliation Commission to investigate human
rights violations during the apartheid years. South Africa has a well developed
government strategy in relation to victims issues, and although not without its critics,
it has achieved much over the past number of years and has learned many important
lessons which may be of value in other countries dealing with post-settlement issues.
This study focuses specifically on the TRC, given its centrality to the whole issue of
government initiatives on victims.
Background to the Conflict
Khoisan tribes of nomadic hunters, gatherers and pastoralists lived in southern Africa
for tens of thousands of years, later being joined by Bantu pastoral tribes. Europeans
first arrived in Southern Africa in the 15th century when the Portuguese reached the
Cape of Good Hope, however, its was not until the Dutch arrived in 1652, seeing the
potential of exploiting the location of the Cape as a strategic outpost on the route to
empires in the East, that European settlements were formed. The Dutch East India
Company (VOC) was established as a supply point for Dutch merchant ships and in
subsequent decades, French Huguenots and Germans also settled in the Cape. The
colonial need for labour led to the Dutch importing slaves from other areas of Africa
and the East Indies. Dutch-speaking livestock farmers known as “trekboers” or
simply “boers,” migrated north and east from their base in Cape Town to establish
frontier zones along the coast and in the interior of South Africa. This movement
caused many violent collisions with the Bantu tribes and later with the Khoisan, these
groups being decimated by diseases such as small pox which were introduced by the
European immigrants.
The 19th century saw the continual growth in the slave population and also the
strengthening of resistance of the Khoisan and Bantu to the colonial expansion.
Intermittent conflict between these groupings continued for over a hundred years. At
the beginning of the same century the British replaced the Dutch as the dominant
European power in the region. At the end of the Napoleonic wars in 1814 Britain
took possession of Cape Colony and proceeded to anglicise the government. With
the freeing of slaves in 1833, around 12,000 Afrikaners made the “great trek” north
and east into African tribal territory, where they established the republics of the
Transvaal and the Orange Free State. The British created a colony in eastern Cape by
bringing in their own settlers to act as a buffer against the Xhosa chiefdoms and later
British settlers were to be found in Natal. Relations between the Boers and the British
were not good, occasionally leading of armed conflict.
South Africa was transformed by the discovery of diamonds and gold within the Boer
republics between the 1860s and 1880s. In 1871 the Kimberley diamond mine was
founded along the Orange and Vaal rivers in which would become the richest
diamond mine in the world. Gold was discovered by the Europeans around the
40
Transvaal in the early 1870s, and later in an area called the Witwatersrand. The
discovery of minerals caused an influx of European immigration and investment and
many blacks to the area to work in the mines.
Having moved to the north-east to escape British control, the Boers did not want to be
dominated by them again, leading to the Anglo-Boer Wars of 1880-81 and 18991902. Although often seem as a ‘white man’s war’ this conflict affected all inhabitants
of the region, including the African population, as both sides used blacks extensively
as labour, and at least 10,000 Africans fought for the British. British forces prevailed
in the conflict, and the republics, were incorporated into the British Empire. In May
1910, the two republics of the Orange Free State and Transvaal and the British
colonies of the Cape and Natal formed the Union of South Africa, a self-governing
dominion of the British Empire. The Union’s constitution kept all political power in
the hands of whites (predominantly Afrikaner) and the Africans were forced to give
back much of the land they had retaken from the Boers during the during the war
years. Many racist laws were introduced.
From 1910 until 1948, power in South Africa was shared uneasily between white
British and Afrikaner political parties. In 1914, the National Party (NP) was formed,
becoming the main Afrikaner party. In 1912 a body emerged called the South African
Native, later the African National Congress (ANC). Its goals were the elimination of
restrictions based on colour and the enfranchisement of and parliamentary
representation for blacks. However, government continued to pass laws limiting the
rights and freedoms of blacks. In 1948 the National Party came to victory in all-white
elections and drew up legislation designed to completely institutionalise white
domination and racial separation known as “apartheid” (separateness). The National
Party did not invent segregation, as elements of it had already existed. It did,
however, actively encourage and create an apartheid ideology which created a
seemingly permanent white political majority from a white minority.
Blacks did not have the right to vote and in 1951, the Bantu Authorities Act
established the creation of ‘homelands’ as a basis for ethnic government in African
reserves which enforced total segregation so that nearly every town was carved into
separate ‘group areas’, sorting people by racial categories as shown in their identity
books and entered in a national register. In theory these ‘homelands’ were
independent countries with their own governments and were created so that when
blacks entered the white designated South Africa, the government could say that they
were foreign guests with no political rights. From 1976 to 1981, four of these
homelands were created, denationalising nine million South Africans. A total ban on
inter-racial marriages was imposed and “whites only” jobs were sanctioned. In 1950,
the Population Registration Act required that all South Africans be racially classified
into one of three categories: white, black (African), or colored (of mixed decent). The
coloured category included major subgroups of Indians and Asians. Classification into
these categories was based on appearance, social acceptance, and descent.
The ANC arose as a result of these initiatives passed by the Afrikaner National Party.
Beginning peacefully, the turned to the use of violence when it became obvious to
them that the whites were not listening to their demands. The organisation went
underground and turned to direct action through strike action, community boycotts
and public pass-burnings. A split led to the formation of the more radical Pan African
41
Congress (PAC) who began a campaign of terror. Both organisations appeared to
have little impact on the security of the apartheid state, even with growing
international support and awareness. In 1955, the ANC convened a mass meeting
called the Congress of People where the ‘Freedom Charter’ was adopted, which
asserted that “South Africa belongs to all who live in it, black or white, and no
Government can justly claim authority unless it is based on the will of the people.”
The government broke up the meeting and arrested 156.
In 1953, the Public Safety Act and the Criminal Law Amendment Act were passed,
allowing the government to declare stringent states of emergency and increased
penalties such as fines, imprisonment and whippings, for protesting against or
supporting the repeal of a law. In 1960, following a protest in Sharpeville in which a
large group of blacks refused to carry their passes; the government declared a state of
emergency. The emergency lasted for 156 days, and 69 people were killed by police
and 187 people injured. Thousands of workers then went on strike, and in Cape Town
30,000 Africans marched in a peaceful protest. The government mobilized the army,
outlawed the ANC and the PAC, and arrested more than 11,000 people under
emergency regulations. In the 1960’s many of the leaders of the ANC were arrested
and imprisoned on charges of treason, including ANC leader Nelson Mandela.
Following Sharpville, the ANC and PAC went underground and fought the system
through guerrilla warfare and sabotage. In May 1961, South Africa declared itself a
republic and withdrew from the Commonwealth, due in part to international protests
against apartheid.
The oil-linked worldwide inflation of the 1970s had a huge impact on the living cost
of the black South African workers, including the miners who took to organising
illegal strikes to obtain wage increases. In 1976, a student revolt in Soweto against
the segregated and imbalanced education system spread like wildfire throughout the
country. A new ‘Black Consciousness’ movement, led by Steve Biko encouraged
Africans to stand up for their rights and viewed the struggle for human rights largely
in terms of colour rather than class. Organizations associated with the Black
Consciousness movement were banned in October 1977, and many of the individuals
involved were jailed or forced into exile. Biko’s arrest and killing in police custody
created a fresh outburst of public anger. Apartheid imposed a very heavy burden on
all non-whites. Indians, Coloureds, and especially Africans suffered from widespread
poverty, malnutrition, and disease.
During the 1980’s, with increasing international pressure being exerted on the white
South African government, both the UN and the Commonwealth demanded that
economic and political sanctions be placed on the regime unless a new political
democracy was initiated to include the whole population and not the minority at
present. This international campaign of sanctions and non-importation of South
African goods, affected the country very significantly. Strikes and boycotts, acts of
civil disobedience and sabotage disrupted the day to day running of the country and
its economy. The government was forced to make some concessions, causing a split
with the radical right wing factions wanting to maintain the strict apartheid.
In 1984, a new constitution was effected in which ‘coloureds’ and Asians were
granted a limited role in the national government and control over their own affairs in
certain areas. Blacks remained disenfranchised, whilst the whites ultimately held all
42
power. The ANC continued to built up a position of strength far greater
internationally than within South Africa.
Peace Agreement
Secret discussions between members of the National Party and Mandela began in
1986 and in late 1989 President F.W. de Klerk announced the unbanning of the ANC,
the PAC, and all other anti-apartheid groups and initiated a series of reforms to
effectively dismantle apartheid. In February 1990, de Klerk unconditionally released
Nelson Mandela, after 27 years of imprisonment. Racist laws were annulled and
peace with the ANC was established. In 1991 de Klerk called a referendum on
whether the nation wanted to continue towards true democracy and 70% voted in
favour. In 1991, the Group Areas Act, Land Acts, and the Population Registration
Act, some of the most odious apartheid legislation, were abolished. In the same year,
all the political parties of South African, black and white, began a series of meetings
in order to hammer out a transitional constitution, which was promulgated into law in
December 1993. The National Peace Accord and the Interim Constitution provided a
solid basis for a new democracy to take shape in South Africa.32
In April 1994, South African held its first democratic elections and Nelson Mandela
was elected as president of the Government of National Unity (GNU). The parties
originally comprising the GNU - the ANC, the NP, and the Inkatha Freedom Party
(IFP) - shared executive power until June 1996 when the NP withdrew from the GNU
to become part of the opposition. A new constitution entered into force in early 1997,
guaranteeing basic human rights for all of South Africa’s people was drawn up and
the country began a new chapter of reform under the leadership of Mandela and the
ANC for a five year term. Social issues such as unemployment, housing and crime
were focused on and South Africa was reintroduced into the global economy by
implementing a market-driven economic plan (GEAR) including the establishment of
the Truth and Reconciliation Commission, whose primary purpose is to investigate
abuses committed during the apartheid regime.
In June 1999, Nelson Mandela retired and Thabo Mbeki was elected President of
South Africa.
Truth and Reconciliation Commission
The South African Truth and Reconciliation Commission was formed as a result of
four years of negotiations and compromises between the South African government
and the various liberation movements. One of the compromises made which broke
the deadlock which had occurred during the negotiations was the insertion into the
Interim Constitution, enacted in 1994, providing for an amnesty to be granted to those
accused of politically motivated gross violations of human rights. The mechanisms for
implementing this amnesty were left undecided.
32
For the full text of the National Peace Accord and the 1994 Interim South African Constitution see
http://www.incore.ulst.ac.uk/cds/agreements/africa.html.
43
Following the formation of the Government for National Unity in 1994 the
practicalities of how to instigate this amnesty process was debated. The ANC,
amongst others, suggested the structure of a truth commission leading to the
enactment of the Promotion of National Unity and Reconciliation Act (also known as
the TRC Act)33, which provided for the setting up of the Truth and Reconciliation
Commission. The ANC had previously set up its own internal commissions of
inquiry to examine allegations that gross violations of human rights had occurred
within ANC camps.34
The central tenet of the Commission and the granting of amnesties rested on the
accused giving full disclosure of the event or events to which they were connected
and fulfilling a strict set of criteria as set out by the Commission. Participation in the
Commission takes away the individual victims' normal rights to pursue justice
through the normal court procedures and to achieve satisfaction and, possibly,
compensation through the criminal justice system. The perimeters of the TRC were
between the dates of the 1 March 1960 and 10 May 1994 and were based on a
definition of gross violations of human rights to include killing, abduction, torture or
severe ill treatment of any person; or any attempt, conspiracy, incitement, instigation,
command or procurement to commit an act referred to above. Acts committed both
within and outside of South Africa would be considered and these acts must have
been based on a political motivation.
17 commissioners were appointed by the President, Nelson Mandela, following a
public selection process and, under the Chair of Archbishop Desmond Tutu, were
divided amongst the three created subcommittees
ß the Human Rights Violations (HRV) Committee
ß the Amnesty Committee
ß the Reparations and Rehabilitations (R&R) Committee.
The Commission was empowered to set up an investigative unit to examine
allegations arising from the work of the Committees as listed below. This unit had
wide powers of search and seizure, and was able to hold hearings in secret to obtain
more information. A witness protection programme was also established for witnesses
whose lives may have been in danger as a result of their participation.
The TRC were specifically asked to deal with the following:
(a) analysing and describing the "causes, nature and extent" of gross violations of
human fights that occurred between 1 March 1960 and 10 May 1994, including
the identification of the individuals and organisations responsible for such
violations
(b) making recommendations to the President on measures to prevent future
violations of human rights
(c) the restoration of the human and civil dignity of victims of gross human fights
violations through testimony and recommendations to the President concerning
reparations for victims
33
For the full text of this Act and associated amendments and bills see www.truth.org.za/legal/index.htm
Commission of Enquiry into Complaints by Former African National Congress Prisoners and Detainees ('The
Skeweyiya Commission') - Report of the Commission of Enquiry into Complaints by Former African National
Congress Prisoners and Detainees October 1992
34
44
(d) granting amnesty to persons who made full disclosure of relevant facts relating to
acts associated with a political objective.
Human Rights Violations Committee
This committee was targeted specifically at victims and its responsibilities included:
completing victim findings, appeals and reviews; the production of a popular version
of the TRC final report; the production of a victims' volume; a report on
disappearances and future exhumations, and looking at possible prosecutions.
This committee was the first to hold hearings, in order to focus attention on the
victims, rather than the perpetrators and victims were heard from all sections of the
population. The findings of the Committee were detailed in the final report of the
TRC.
Amnesty Committee
In contrast to the Reparation and Rehabilitation Committee, which could only make
recommendations, the Amnesty Committee was given powers of implementation,
thereby granting perpetrators who met the criteria immediate freedom from criminal
and civil liability. The Committee was, not surprisingly, more controversial than the
others and came under public scrutiny and criticism. The Committee consists mainly
of judges and lawyers, whose task it is to consider each application for amnesty and
make a decision.
Reparations and Rehabilitation Committee
The task of the Reparations and Rehabilitation Committee was to develop a policy for
awarding reparations and rehabilitation to victims. Section 42 of the Promotion of
National Unity and Reconciliation Act provided for the establishment by the
President, in consultation with the Ministers of Justice and Finance, of a President's
Fund from which all money payable to victims would be disbursed. In accordance
with the TRC’s recommendations, a Presidents Fund was established to co-ordinate
and provide for reparations payments which would accrue its funds from international
donors, the national budget and the interest earned from these savings.
The bulk of the TRC’s work, including the victims’ hearings, took place between
December 1994 and October 1998. Around sixty investigators were employed by the
TRC to handle examine over 35,000 violations reported by approximately 22,000
victims who gave testimony to the commission. As a result of the Commission,
hundreds of perpetrators who applied for amnesty and fulfilled the criteria were free
from potential prosecution of had their jail sentences revoked.
45
TRC Report
In October 1998, the Commissioners presented the majority of the work in a
substantial report, running to 3,500 pages to the then President Mandela.35 The
Report is in five volumes, each with a particular focus. Volume 1 (The Commission)
deals with The Commission and provides the basis and rationale for the work and
details working methodology, Volume 2 (Repression and Resistance) describes the
role of perpetrators in a story of repression and resistance, Volume 3 (Regional
Profiles) tells the story of victims in a series of regional profiles, Volume 4
(Institutional and Special Hearings) explores the background to apartheid, reporting
on The Commission's Institutional and Special Hearings and Volume 5 (Findings and
Recommendations) contains the Findings and Recommendations of The Commission.
The Amnesty Committee continued to operate until late 2000 and once the Amnesty
Committee finishes its work, an additional volume will report on the work of that
Committee, based on amnesty hearings conducted and findings made and will also
include summaries of the statements of those people the Commission found to have
suffered gross violations of human rights.
The TRC was not without its fair share of critics, not only amongst the political
sphere, but also within civil society who have felt that they have had to pick up the
pieces of issues raised but not fully dealt with by the Commission.
Payment of Reparations to Victims
Based on the findings of the Human Rights Violations and Amnesty Committees, the
Reparations and Rehabilitations (R&R) Committee were mandated to develop policies
on how best to assist those recognised as victims and make recommendations on
offering reparations to victims for the damages they had suffered as a result of the
past. These recommendations for reparations could take the form of compensation, ex
gratia payment, restitution, rehabilitation or recognition, as detailed in the TRC Act.
Aside from the testimonies gathered from victims, the R&R Committee also sought
information and opinion from church groups, non-governmental organisations,
academic bodies and looked to other domestic and international examples of Truth
commissions.
The TRC did offer recommendations on reparations within its final report released in
October 1998 and the responsibility for implementation of these recommendations
then passed to the President and Parliament of South Africa, if they see fit. In terms
of international law, the South African government has signed and ratified a number
of international treaties that advocate the payment of compensation to victims of
human rights violations and the TRC have taken the view that this now obligates the
government to grant victims just and suitable compensation for their suffering.
The TRC set out five main areas of reparations allocation. The first two focused on
individual ‘victims’ as decided upon by the Commission and their families and
dependents – those being urgent interim financial reparations for assistance calculated
35
To view the executive summary of the report and find details on how to order the whole report, see
http://www.truth.org.za/report/index.htm
46
on a sliding scale and individual reparations grants calculated according to extent of
suffering. The other three policies considered communities in a more general sense
and focused on symbolic reparation (which would include erection of memorials,
national days of remembrance, granting of death certificates etc); community
rehabilitation programmes (which would include community based healing project,
resettlement of displaced peoples, building of local treatment centres) and institutional
reform of administrative, legal and institutional steps to ensure that past human rights
violations do not reoccur. In effect, the TRC was not only recommending financial
reparations, but also reparations which would act symbolically and would impact on
communities and institutions.
In accordance with the TRC’s recommendations, the government has provided for
Urgent Interim Reparations (UIR), which has largely been fulfilled. As of October
2000, over 12,000 victims have received payments. Combined, this accounts for
about 10% of the funds allocated. The TRC recommends a payment of R21,700 p.a.
(based on the average household income) for six years to about 22,000 victims. If this
occurred the financial obligation would be R477, 4 million p.a. or R2, 864bn over six
years.36
Summary
ß
The apartheid system in South Africa lead to a very complex conflict in which
the use of significant violence was used by state and non-state forces alike.
ß
The establishment of the TRC was heralded as a vital way of dealing with
abuses of the past and moving forward into a new future for South Africa.
ß
The workings of the TRC have been criticised from a number of sectors, as has
been the lack of real participation from white South Africans in the process.
ß
The issue of payment of reparations to victims of gross violations of human
rights has been a contentious issue to date in South Africa.
36
Financing a Reparations Scheme for Victims of Political Violence , Brandon Hamber & Kamilla Rasmussen
in Hamber, B. & Mofokeng, T. (eds). (2000). From Rhetoric to Responsibility. Johannesburg: Centre for the
Study of Violence and Reconciliation
47
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