Two Paradigms of Justice: Criminal vs Survivor Justice in Africa

Christopher Zambakari. Contemporary Justice Review. Volume 22, Issue 2. June 2019.

African countries continue to experience civil wars and other low-level violent conflicts. An issue relating to the intractable nature of postcolonial violence and how it should be resolved, is what is the potential for advancing contemporary peace processes and negotiated agreements through the notion of survivor justice? Two paradigms of justice have emerged in Africa in response to mass violence: criminal justice based on the example of the Nuremberg trials; and survivor justice based on political reform and exemplified by the cases of South Africa and Sudan. These two paradigms of justice are compared, with the context undergirding the debate and assumptions of each explored, and how this related to the issues of building peace in Africa. The guiding question is whether civil wars can be ended in courts. I argue that where a decisive military victory is untenable, survivor justice, that is political reform combined with judicial reconciliation, is the best way to resolve Africa’s conflicts. The example of South Africa’s political settlement and the reconciliation process in Rwanda offer examples of solutions for conflict transition to peace. Criminal justice processes—absent a decisive military victory—can act to delay and prevent peace and resolution.

Introduction

Although most African countries achieved independence in the 1950s and 1960s, violence continues to exact a terrible toll on human lives in Africa in the postcolonial period. While the overall number of wars has decreased, civil wars and civil strife continue to destabilize African countries, unravel societies and forcefully displace millions of people. The cost of armed violence to African countries between 1990 and 2007 is estimated to have amounted to $300 billion, with those countries experiencing conflict suffering on average from at least a 15% decrease in Gross Domestic Product (GDP) (IANSA, Oxfam, & Saferworld, p. 3).

The question of how to end mass violence has preoccupied national, regional and international organizations alike. The question of how to treat mass violence in civil war contexts is particularly pertinent within the African context. Studies show that while inter-state violence has decreased (World Bank), intra-state violence continues to cost human lives, displacing millions from their homes (IDMC & NRC). Modern violence has ceased to be a confrontation between states and increasingly is violence within the state-civil wars. How do we end civil wars on the continent? When a military victory is not possible, what alternatives are available for negotiating durable peace and, in order for this to happen, what considerations have to be made of the possibilities for securing postconflict justice?

Two paradigms have emerged for providing a justice-based resolution to violence, one shown in Europe in the aftermath of World War II and the other epitomized by South Africa’s transition after the end of apartheid. This leads to the question as to whether civil war-type violence be treated as criminal violence or as political violence, a question that is asked in the wider context of the accompanying rise of human rights organizations and calls for the individualization of criminal violence. Can, in short, civil wars be ended in criminal courts? Is this prioritization of individual accountability in violence an appropriate method to deal with accountability for mass violence? These questions have been articulated most vigorously by the African scholar of government, Mahmood Mamdani (Mahmood Mamdani; Mahmood).

In this paper, I set to investigate two dominant paradigms of justice, one cosmopolitan and rooted in the aftermath of World War II and the other arising out of the African context, inspired by South Africa’s (see ‘The paradigm of justice and its pitfalls’ in Leys & Mamdani, pp. 17-25). I plan to compare these two paradigms of justice, criminal and survivor, and illuminate the context underlying the debate and the assumptions of each, and the results for building peace in Africa. A paradigm of justice can be understood as a collective understanding or consensus around a given problem and also indicates how that problem should be resolved. To borrow from Thomas Kuhn, a paradigm constitutes a reigning body of theories and approaches to solving problems in a given area of inquiry (see Ch. 2 of Kuhn). These two approaches differ in the prescriptions they offer for the future, the treatment of perpetrators/victims and survivors/beneficiaries, and both paradigms aim to achieve different ends.

I will introduce and develop the conceptual framework of survivor justice and briefly critique the universalization of the human rights discourse around justice, followed by a discussion of survivor justice in peace agreements within context of mass violence, using the case of Rwanda and how it has implemented survivor justice in dealing with the aftermath of the genocide of 1994 through indigenous institutions known as Gacaca. I will ask the following questions to structure the debate: are there differences between the two methods of resolving conflicts inspired by the two paradigms (criminal vs. survivor) and what does each imply for the future of conflict resolution and peace?

I will present an alternative form of justice rooted in the African context, by arguing that the conditions that enable criminal justice to be effective are absent in most African conflicts. I will draw relevant lessons for peace-building on the continent and conclude by asking: what are the implications of an uncritical reliance on a cosmopolitan concept of justice for peace in Africa?

Liberal Justice and Cosmopolitan Discourse on Human Rights

The abstraction of an answer out of context, stripped of history and politics, is not new in international affairs. The history of human rights movements is replete with exclusions. The dominant discourse often only includes the voice of ruling powers, while excluding those subjugated. The drafting of the Universal Declaration of Human Rights is a modern example of this exclusion of all other values except those valued in the west. In 1947, the Saudi Delegation argued in its objection to the committee drafting the Declaration of Human Rights that only one form of rights was explicitly acknowledged: western liberalism and its values were dominant and all other values were excluded. It claimed that the committee had ‘taken into consideration only the standards recognized by Western civilization’ (cited in Pagden, pp. 171-172). The Saudi delegation also noted that the drafting committee was not charged ‘to proclaim the superiority of one civilization over all others or to establish uniform standards for all the countries of the world’ (Pagden). It should be noted that most of Africa was still under colonial occupation at the time. Today’s discourse on human rights and the concept of justice is biased towards western liberal values and conceptualizations of justice. This has detrimental consequences for peace in collective societies where there are alternative conflict resolution mechanisms, alternative concepts of justice and multiple mechanisms for dealing with conflicts.

The liberal tradition that informs the discourse on human rights and the pursuit of justice is not without its critics (Morgan & Roland). Michael Ignatieff argues that modern ‘human rights’ are based on a narrow western tradition, which is largely French, British and American (Gutmann & Ignatieff, pp. 58-95). Roland Bleiker writes that the construction of ‘common sense’ in the liberal tradition has emerged stronger in the period following World War II. According to Bleiker:

Numerous peacekeeping and peace-building interventions around the world, from Bosnia to East Timor and Iraq, are shaped by strong liberal policy preferences. These preferences have been advanced with such a strong realist sense of righteousness that they are no longer recognised as a rather particular-and inherently subjective-approach to solving conflict (p. 6).

Issa Shivji, making a similar case in regard to Africa, noted that, ‘we hardly interrogate the very basic premises of the liberal democratic model in its historical, social-economic context.’ Anthony Pagden notes that ‘”rights” are cultural artefacts masquerading as universal, immutable values. For whatever else they may be, rights are the creation of a specific legal tradition—that of ancient Rome’ (Pagden, p. 172). Pagden writes that ‘if we wish to assert any belief in the universal we have to begin by declaring our willingness to assume, and to defend, at least some of the values of a highly specific way of life’ (p. 173). He notes that the genesis of human rights and natural rights, which later gave birth to international law and global justice, needs to be understood as part of the liberal tradition of rights that goes back to the Greeks and Romans. The liberal tradition is intricately connected to a history of European imperial expansion which later gave birth to liberal peace. Pagden argues that the tradition out of which we get our modern-day human rights convention excluded many other traditions (African, Asian and various indigenous traditions around world) and calls for a cautious embrace of today commonly accepted discourse on rights. The current uncritical embrace of these liberal traditions without understanding the legacy from which they arise leads to more problems. It is from this western liberal tradition that comes much of the discourse on human rights and justice—in particular criminal justice.

Nuremberg Model: Criminal Justice

The illuminating context for criminal justice after war was the Nuremberg Trials after World War II (Mahmood Mamdani). The end of World War II divided the Allied Powers in regard to how to address the fate of defeated powers. One group—exemplified at times by Winston Churchill (British Prime Minister) and Henry Morgenthau (US Secretary of the Treasury under Roosevelt), as well as the Soviet Union—demanded tough measures to be applied to Germany and others who orchestrated the violence of World War II. Although Churchill changed his views over the course of the war, he initially argued that the leading Nazis had given up their right to due process before the law. Morgenthau separately advocated for the deindustrialization of Germany so that the country would never be able to arm itself again.

The second group was led by Henry Stimson (US War Secretary under Roosevelt) and Robert Jackson (US Supreme Court Justice), who argued for a judicial process for those accused of war crimes. It was clear though that without due process of the law undergirding the trial, it would have been both illegal and illegitimate, and its credibility destroyed. Jackson noted, ‘you must put no man on trial under forms of a judicial proceeding if you are not willing to see him freed if not proven guilty … the world yields no respect for courts that are organised merely to convict’ (Jackson, p. 293).

Just as the differences between Churchill, Morgenthau, Stimson and Jackson made a big difference in the lives of those who had to live with the consequences of their ideas, the forms of justice that have been uncritically embraced by human rights establishments has had profound consequences for countries seeking to find a way forward after violence.

The Trials at Nuremberg were based on a number of assumptions and realities born from the War that are absent in most African context. The precondition for the trials was the Allied decisive military victory over Nazi Germany. Second, there was a clear separation between where the winners, losers, victims and survivors were going to live: they weren’t going to have to live together, with Israel created for survivors of the Holocaust. Finally, at Nuremberg, only the losing forces were tried, with the Allies appointed both the judges and prosecutors. Significant omissions from the trial were the acts that Allied forces themselves had committed during the war, including such atrocities as the firebombing of Tokyo, the bombing and destruction of the City of Dresden which killed and injured thousands of Germans (Mahmood Mamdani), or the dropping of two atomic bombs on the Japanese cities of Hiroshima and Nagasaki as necessary to ending the war.

One example is the case of the British bombing of German cities. For Winston Churchill it was: ‘All the same, it would be a mistake to cast aside our original thought…that the severe, ruthless bombing of Germany on an ever-increasing scale will not only cripple her war effort…but will create conditions intolerable to the mass of the German population’ (p. 783). The decisive moment came in July of 1942 when Churchill observed that:

In the days when we were fighting alone, we answered the question: “How are you going to win the war?” by saying: “We will shatter Germany by bombing.” Since then the enormous injuries inflicted on the German Army and manpower by the Russians, and the accession of the manpower and munitions of the United States, have rendered other possibilities open. (p. 783)

However, the raids and terror bombings did not stop but continued through the spring of 1945 (On terror bombing of German Cities in World War II see Biddle, Biddle, & Ikenberry; Garrett; Webster).

In an extended correspondence with the Under Secretary of State, Air Ministry, Sir Arthur Street, Air Marshal Arthur Harris, who led the British Royal Air Force Bomber Command in World War Two, earning him the nickname ‘Bomber Harris’ noted in October 1943 that the aim of the Bomber Command was:

…the destruction of German cities, the killing of German workers and the disruption of civilised community life through-out Germany.[…] It should be emphasized that the destruction of houses, public utilities, transport and lives; the creation of a refugee problem on an unprecedented scale; and the breakdown of morale both at home and at the battle fronts by fear of extended and intensified bombing are accepted and intended aims of our bombing policy. They are not by-products of attempts to hit factories. (cited in Biddle, p. 179)

Norbert Ehrenfreund argues that most agreed that the British policy of terror bombing of civilian areas killed some 300,000 and seriously injured another 780,000 German civilians (Ehrenfreund, p. 59). According to Michael Walzer, one of the world’s foremost political thinkers, the greater number of German civilians killed during the terror bombings were killed without moral or military reasons. It was only after the complete destruction of Dresden in the Spring of 1945 that Churchill began reconsidering his position. On March 28, Churchill wrote a memorandum to Sir Charles Portal, Chief of the Air Staff, noting that ‘bombing German cities simply for the sake of increasing the terror, should be reviewed ‘ (cited in Webster, p. 112 [v. III]). On the firebombing of Dresden on 13-15 February 1945, Churchill wrote that ‘the destruction of Dresden remains a serious query against the conduct of Allied bombing’ (p. 112 [v. III]). By the time Churchill changed his mind about the bombing raids, the war was practically over. The Historical Commission on the Aerial Bombing of Dresden between 13th and 15 February 1945 published its report in 2010 on behalf of the City of Dresden assessing the estimates of fatalities which range between 20,000 and 500,000, and in some cases even up to one million fatalities. The Commission concluded that the air raids caused up to 25,000 deaths (City of Dresden).

According to Mamdani, the Allies carried the ‘most far-reaching ethnic cleansing in the history of Europe, not only redrawing political boundaries but moving millions across state boundaries’ (Mahmood Mamdani, pp. 33-34) yet no trials were held for these crimes. Selective justice was also seen, with the trials or sentences of some of those indicted on war crimes commuted or shortened in response to the emergence of the Cold War. The trial and sentencing of Alfred Krupp is an illustration of this. Nuremberg-style justice is a victor’s justice. Mamdani notes that by the First World War the Krupps were ‘Europe’s leading manufacturers and suppliers of guns and munitions.’ During the Second World War, the family was managing:

138 concentration camps across Europe. The family used slave labour to build and man their factories and arm Germany: they were allowed to select workers from concentration camp inmates and prisoners of war and to requisition factories in occupied countries. In 1948 Krupp was charged with crimes against humanity and sentenced to 12 years in prison. Two and a half years later he was released and his assets restored in an American-led amnesty. (Mahmood Mamdani, pp. 33-34)

The lessons of Nuremberg have been taken out of context and instead what is left is a one-dimensional, criminal prosecution stripped of its history and individual context, being applied to all other violent situations without asking the right questions. Today, the organization that is said to consider the verdicts for crimes against humanity, genocide, war crimes and the crime of aggression, are the International Criminal Court (ICC), whose only accountability is to the Security Council of the United Nations. The majority of the ICC’s cases (ICC) are all in Africa, covering 21 cases from eight situations.

This model of a court-driven process is said to be the only viable way to render justice after violence. However, when this model is applied to contexts where conflict is ongoing, where there is lack of decisive military victory—as is often the case in civil wars—it does not produce peace, but rather entrenches positions and incentives for the warring factions to fight until there is a clear winner, or at the least no clear loser. The fear of prosecution for those still wielding power leads to intransigence and perpetuates the suffering of those caught in the crosshair of warring factions.

Those pushing hard for crimes to be settled inside the courtroom or who demand criminal prosecution in the cases of ongoing conflict ignore the fact that what they are championing excludes other traditions with different histories and different origins. The consequences of this failure play out in conflicts, especially in Africa, by unnecessarily prolonging conflicts, entrenching political positions and making negotiated settlements even more problematic.

Peace and Survivor Justice

The emergence of peace studies and the field of transitional justice, both as interdisciplinary academic fields, has allowed scholars to provide greater insight into what causes wars and how to resolve the problem of mass violence. When it comes to transitional justice, there has been resistance for reality to catch up with the empirical evidence of what leads to negotiated settlements, what factors lead to the resolution of civil wars, and what factors deliver sustainable peace in the long term.

The notion of survivor justice arises in response to a dilemma of conflicts in pluralistic, divided societies, when examining the question of how to end ongoing violence (enabling a cessation of hostilities), securing peace, and laying the foundation for justice and reconciliation. In Africa, Mamdani has argued that we need to distinguish between different forms of justice in order to create a space where conflict resolution can take place. Mamdani proposes survivor justice, which takes as a starting point the survivors of conflict and prioritizes reform over prosecution (Mahmood Mamdani). It challenges the belief that reform can only come through the court. This articulation is increasingly gaining support in places where conflict is intractable and victory untenable through military means. According to Mamdani, ‘if one insists on distinguishing right from wrong, the other seeks to reconcile different rights. In a situation where there is no winner and thus no possibility of victors’ justice, survivors’ justice may indeed be the only form of justice possible’ (Mahmood Mamdani, p. 22).

Victor’s justice, which is represented according to Mamdani by the Nuremberg trials, is premised on certain liberal assumptions, namely a decisive military victory over an adversary and separation between victims and perpetrators. In another article, Mamdani puts survivor justice in context and explains why it paved the way for South Africa’s transition in the 1990s. Mamdani writes that:

If South Africa is a model for solving intractable conflicts, it is an argument for moving from the best to the second-best alternative. That second-best alternative was political reform. The quest for reform, for an alternative short of victory, led to the realization that if you threaten to put the leadership from either side in the dock they will have no interest in reform. This change in perspective led to a shift, away from criminalizing or demonizing the other side to treating it as a political adversary. (p. 67)

In cases where victims, survivors, beneficiaries and former perpetrators must live side-by-side, there is a need to rethink the model of criminal justice and instead shift the discussion towards survivor justice. Survivor justice—which Mamdani associates with postapartheid transition—combines impunity with political reform (political settlement) and judicial reconciliation (TRC).

Today, one finds two competing conceptualizations of justice that are championed by various actors in the international community. On the one hand are human rights organizations who advocate the prosecution of perpetrators of violence (Amnesty International; Human Rights Watch). For many of these organizations, criminal justice is an indispensable key to peace. On the other side are scholars and policy-makers who want a pragmatic approach to ending violence. The challenge for many countries in Africa is how to end the violence in order to create the space where issues of justice and reconciliation can be discussed and negotiated. In South Africa, for example, it was only after the formation of the Convention for a Democratic South Africa (CODESA) I and II, followed by the negotiated settlement at Kempton Park and the decriminalization of the African National Congress (ANC) that the path to peace and ultimately transition was opened (Asmal, Asmal, & Roberts; Mahmood; Mamdani; Viljoen & Venter). Without first reaching a political settlement it would have been difficult for South Africa to transition to a democracy.

The question that many plural societies in Africa face is how to end violence (end of hostilities), hold perpetrators accountable (justice), and achieve peace (conflict transformation). In a situation where one needs those in power to reach a settlement, demanding criminal justice is tantamount to demanding the impossible when a military victory is untenable. This is where survivor justice is useful as an alternative or a second-best solution to an intractable conflict. Survivor justice does not advocate for blind impunity and blank amnesty. It distinguishes between forms of justice by prioritizing the living over the dead, proposing a combination of impunity combined with reform, and sequences the process of transitional justice (Jok; Kriesberg; United Nations Security Council). This sequence of processes was well summarized by Jok Madut Jok, the executive director of the Sudd Institute, who advocated for a sequential approach to the ongoing peace process in South Sudan in order to avoid ‘the temptation to rush for a bad peace that returns the country to war in no time versus the prolonged peace process that risks the loss of more human life’ (p. 11). At the core of survivor, justice is not a trade of peace for justice but an exchange of ‘amnesty for the willingness to reform’ (Mahmood Mamdani, p. 66).

How would survivor justice work in the intractable conflicts in Africa? In a sense, survivor justice delays criminal proceedings in order to give negotiated settlements a chance. This often begins with a negotiated cease fire, followed by a political settlement, and then issues of transitional justice are built into the process or sequenced on a separate track from the negotiated agreement amongst the conflict parties. Jok summarizes this thus:

a sequential peace process, beginning with an enforceable cessation of hostilities, followed by a negotiated settlement, even if that settlement is between the elite, and an insistence by the mediators on a strong political and financial commitment from the parties to a program of post-war reconstruction, institutional reform, especially a strong security sector reform, justice, accountability for war crimes, national dialogue, healing and reconciliation. (p. 11)

Survivor Justice and Negotiated Peace Agreements

In the literature on violence and negotiated settlements, there is a lively debate on why some conflicts are successfully negotiated and others remain intractable and insoluble, why negotiators fail in one context and succeed elsewhere. There is increasing evidence that the process and content of agreements play a crucial role in settling disputes as well as the different forms of justice during negotiations. There is a relationship between negotiations (content and process) and the durability of negotiated peace agreements (Druckman & Albin; Zartman & Kremeniuk). Two forms of justice are particularly relevant to survivor justice: procedural and distributive.

Druckkman and Albin (Druckman & Albin) note that justice can complicate the peace process when various competing forms and principles of justice are championed by the conflict parties (Druckman & Albin, p. 10). Zartman and Kremeniuk, in their studies of conflicts from the Thirty Years’ War to the Napoleonic Wars and many wars in the twentieth and twenty-first centuries, found that various conceptualizations of justice led to different outcomes in conflicts. They call these forms ‘forward-looking’ and ‘backward-looking’ principles of justice (Zartman & Kremeniuk). The first is preoccupied with the future and the second with the past. What Zartman and Kremeniuk found is Mamdani’s distinction between survivor justice and criminal justice.

When Druckman and Albin analyzed 16 peace agreements, they found that ‘agreements with equal treatment and/or equal shares were associated with highly forward-looking outcomes and high durability, and equal measures with a more backward-looking outcome and poorer durability’ (Druckman & Albin, p. 109). In other words, agreements that were forward-looking, based on survivor justice principles, led to positive outcomes and high levels of durability. These findings have support in the African context. South Africa, Mozambique and Sudan all had negotiated settlements that were based on the principles of survivor justice (Zambakari). In the context where criminal justice has been invoked, in other conflicts in Sudan, Uganda and elsewhere in Africa, the results have mostly have been the prolongation of violence (Mahmood Mamdani; Zambakari). This partly explains the decision of the negotiators in South Africa, Mozambique and in Sudan to subordinate criminal justice in order to prioritize survivor justice. Successful agreements that are durable depend on two issues in relation to justice: procedural justice (that is, the fair representation of stakeholders or inclusivity) and the degree to which issues are addressed during negotiations (Hayner).

Given the evidence that different conceptualizations of justice have differing effects on negotiated peace agreements, the question that arises is whether the human rights organizations have been wrong in promoting criminal prosecution within the process of ongoing peace talks, or whether the position of continental organizations such as the African Union, which defer indefinitely the publication of reports of inquiry into violence on the continent in order to prioritize peace talks, is more effective? The answer is that both groups are right to an extent. Victims need to know that perpetrators will be (or are) held to account under the law. This needs to be negotiated alongside the pressing need to allow peace talks to deliver peace through a negotiated settlement.

How does one find a middle ground between these two different positions? It is the sequencing of transitional and peace processes by prioritizing different forms of justice at different stages. This continues through an enforceable cessation of hostilities, a negotiated settlement (whether it is inclusive or only between elites), commitment from all conflict parties to reform (South Africa’s example), security sector reform (key in the case of South Sudan), and the formation of transitional justice mechanisms (e.g. truth commissions, national dialogues, healing and reconciliation mechanisms). The timing and sequence of these processes is key. The exception to a negotiated settlement and sequenced processes is the case of a decisive military victory, but in the cases where there is no decisive military victory, negotiated settlements and survivor justice offer the best alternative to ending violence and enabling a durable peace.

Survivor Justice in South Africa

The debate on South Africa’s move from apartheid to a democracy has drawn comparisons with the Holocaust (Asmal et al.). But is the comparison of the Holocaust appropriate in the African context, where conflicts are often ongoing and lack decisive military victory? Is there an alternative? South Africa represents a paradigmatic case of conflict resolution. For decades, the apartheid regime instituted a system of political, legal and social discrimination, inflicting what are now considered to be crimes against humanity upon the people of South Africa. For decades, there was an active armed movement to topple the apartheid regime. The costs of the violence included mass atrocities committed by the security sector against populations, an instituted system of reservation where natives were hoarded away, systemic inequality, poverty and the death of thousands of South Africans. In the late 1980s, both warring parties—the ruling National Party (NP) and the African National Congress (ANC)—realized that decisive military victory was not attainable in the near future. The parties convened a meeting, which came to be known as the Convention for a Democratic South Africa (CODESA) (Nelson Mandela Centre of Memory).

Despite the atrocities committed by the apartheid regime in South Africa, nobody stood trial for these crimes. The CODESA reached a political compromise at Kempton Park, which led to South Africa’s transition in 1994. Central to the agreement was that the wealth accumulated under apartheid was not to be touched and that no one would be held accountable for crimes under apartheid. All parties agreed to political reform and the transfer of power back to the majority.

Jodi Halpern and Harvey M. Weinstein noted the existing deficit in literature about post-conflict reconciliation, commenting that ‘relatively little attention has been paid to the fact that these people (in post-conflict situations-emphasis added) now must learn to live together on a daily basis—in shops, the market, schools, playgrounds, concerts, and coffeehouses’ (Halpern & Weinstein, p. 563). Truth and reconciliation do not end with the confession of crimes or the offering of forgiveness. Confessions and forgiveness are not stand-alone acts. Rather, they are processes and require time. The authors make the case for ‘rehumanizing the other’ (Halpern & Weinstein). Without seeing the humanity in the other, reconciliation will only be cosmetic. Mamdani makes the case that the CODESA recognized that without de-criminalizing the other (the adversary), it would have been difficult to reach an agreement that ushered in a new South Africa. To forge a common future, the leaders in South Africa parted way with Nuremberg-style court trials. The Truth and Reconciliation Commission’s (TRC) report concluded that the price imposed by pursuing criminal justice and holding all perpetrators accountable outweighed the benefits. South Africa, it stated:

…simply could not afford the resources in time, money and personnel that we would have had to invest in such an operation. Judging from what happened in the De Kock and so-called Malan trials, the route of trials would have stretched an already hard-pressed judicial system beyond reasonable limits. It would also have been counterproductive to devote years to hearing about events that, by their nature, arouse very strong feelings. It would have rocked the boat massively and for too long. (Truth and Reconciliation Commission (TRC))

The trade-off was criminal prosecution for political reform. The South African example was later repeated in Mozambique where an estimated one million Mozambicans perished during the civil war, and later in Sudan where two-and-half million-people lost their lives (The U.S. Department of State; UNMIS). The violence in Mozambique was resolved through a political settlement similar to the Comprehensive Peace Agreement (CPA) in Sudan, which combined impunity with political reform. In each of these cases, criminal prosecution was traded for impunity combined with political reform. By distinguishing between differing forms of justice, we are able to chart a way forward without sacrificing peace in the pursuit of an elusive dream. The most important distinction is the one between justice as a criminal act and political justice. This separates violence that is a stand-alone act from violence that is part of a cycle with a history, agency and that is often issue-driven. This difference in return is between a person who commits a crime and a system of violence that cannot be reformed without first addressing the structural issues fueling the violence.

Mamdani notes that South Africa’s great achievement was that it prioritized political reform and legal reconciliation. All of these processes were for the most part internally driven (Mahmood Mamdani). For scholars like Mamdani, the political process itself is key. It must be democratized before any attempt to hold those still in powers accountable can be initiated. Without this preliminary step, those in power have no incentive for reform which leads them to stand trial. In Africa, the outcome is usually that the leaders cling to power and wait to crush the opposition through force. In context of ongoing violent conflicts, the suspension of criminal prosecution creates room for political reform, which can then lead to social reform.

Apartheid constituted a crime against humanity. It was more than a criminal act. It was a system of violence that required that the institutions that enabled it—the political, legal and social apparatuses—had to be completely dismantled before a peaceful settlement could be created and made durable. Holding a few people accountable without reforming the system would not have brought peace to South Africa.

The Limits of South Africa’s Transition

Sampie Terreblanche, the former economic advisor to the old apartheid regime in South Africa and a twenty-one-year member of the Afrikaner Broederbond (AB), a South African secret society made up of Afrikaans-speaking Protestant, white men. He published A History of Inequality in South Africa, 1652-2002 (2002) tracing the history of unequal power relations, colonialism, segregation, apartheid and inequalities in six successive systemic periods since 1652. His analysis focuses on unequal power structures in apartheid and postapartheid South African society and how this has impacted society. He shows that unequal power relations produce an unequal socioeconomic outcomes. As Mamdani showed, the achievement of social and economic justice remains unfinished in South Africa (Mahmood Mamdani). Both scholars show that historical discrimination and unequal power relations is rooted in South Africa’s colonial history, power politics and economic structures (Mahmood Mamdani; Terreblanche). While the transition to an inclusive democracy, transferred political power to the majority, ‘old forms of inequality have been perpetuated, and some entrenched more deeply than ever before,’ (Terreblanche, p. xv) and the institutional legacy of colonialism that was put in place, even before the transition in 1990, has effectively kept existing patterns of inequality and injustices in place.

South Africa’s transition was not without its shortcomings. Whereas the transition in South Africa was a landmark case in Africa, it had its flaws as it focused on the ‘relationship between perpetrators and victims’ (Mahmood Mamdani) instead of focusing on the relationship between beneficiaries and victims. The first of these flaws was a very narrow focus on activists and political elites (victims) as well as perpetrators (state-agents). The second was that it excluded the vast majority of victims, those most affected by the crimes of apartheid (i.e. the wider society).

Apartheid was a political, legal and social phenomenon that targeted entire groups of people rather than individuals alone. Under the apartheid regime, an estimated ‘3.5 million people were forcibly removed from their communities’ (Mahmood Mamdani, p. 39) between 1960 and 1982. The TRC’s greatest failure was its inability to shape the debate in a postapartheid South Africa by focusing on society and social justice. Instead, it focused narrowly on the relationship between perpetrators and victim whiles sacrificing the societal perspective in the process. Although aspects of that system were reformed, South Africa shows both the strengths and weaknesses of reform in a postapartheid era. Without addressing the social legacy of apartheid, South Africa will continue to be plagued by gross social injustices left behind precisely because apartheid targeted groups of individuals. For reform to be durable it has to address the predicament of groups that apartheid dispossessed—the larger society itself. The next section presents a case study to illustrate a contemporary implementation of survivor justice principles that uses a hybrid model based on indigenous institutions in Rwanda.

Gacaca: Survivor Justice in Rwanda

Survivor justice by itself—without reform and other complementary transitional mechanisms—cannot lead to durable peace. In his study of Rwanda’s Gacaca Courts that was set up to prosecute the perpetrators of the 1994 Rwandan genocide (2016), Bert Ingelaere notes that colonialism had a decisive impact on Rwandan society as a whole and impacted the structure of the gacaca. Colonialism introduced many elements of Western-style legal system while the ‘gacaca tradition kept its function as a customary conflict-resolution mechanism at the local level’ (Ingelaere). The co-option of this key transitional justice mechanism was most ‘visible through the introduction of written law and a so-called Western court system imposed over the “traditional” institutions,’ (p. 20) with the gacaca hierarchically inferior to the new Western-style legal system.” In the postindependent Rwandan society, the gacaca was transformed to function both as a semitraditional or semiadministrative body” (p. 20).

In order to deal with the aftermath of the Rwanda genocide, the government pursued a three-pronged approached that combined various forms of justice (criminal and survivor) by forming three sets of institutions: the International Criminal Tribunal for Rwanda, the national court system, and the Gacaca courts. The Gacaca courts are an indigenous justice mechanism where the involvement of lawyers is prohibited and reconciliation is the driving principle (Clark, p. 1). According to Bert Ingelaere, while it is a common knowledge that Gacaca means ‘justice on the grass,’ the name is derived from the word umucaca, ‘the Kinyarwandan word referring to a plant so soft to sit on that people preferred to gather on it’ (p. 19). While there are some continuity with the traditional form of the Gacaca, the modern Gacaca is in the truest sense an ‘invented tradition’ (p. 18). In this paper, I use the Gacaca model of rendering justice to denote a form of restorative justice (Tiemessen, p. 58) based on survivor justice principles and to contrast it to the Arusha and Nuremberg Tribunals that represent criminal justice principle. Following the South African model, the Gacaca courts issue short sentences when a person is repentant and seeks reconciliation with the community. These courts have processed one million cases over 10 years at a cost of US$40 million and are the centerpiece of Rwanda’s justice and reconciliation process. It is now seen as the way forward due to its ability to reform former perpetrators, reintroduce them into society at very low cost, especially compared to a traditional, western court system, such as the Arusha Tribunal (ICTR) with a total of 69 trials for a total cost of US$1 billion (Clark, p. 7). Countries that have prioritized reconciliation over criminal justice have had to balance justice, truth, peace and security. Rwanda shows that criminal justice can be complementary to other forms of justice when it is sequenced over time and embedded in indigenous institutions.

Conclusion

My main argument in this article was that (1) apartheid, one of the twentieth century’s crimes against humanity, was not defeated in the court of law, and that (2) the example of South Africa’s political settlement offers a better example for African countries where no decisive military victory is possible and where violence that has a constituency with real issues/grievances is ongoing. I presented the case of postgenocide Rwanda where a grave crime against humanity was committed and yet survivor justice has become the indispensable tool that has enabled Rwandan society to work through the legacy of the genocide and make substantial progress. The main conclusion from this study is that courts cannot solve problems that are political in nature: civil wars, absent a decisive military victory, cannot be ended in the court of law.

In this article, I have presented and discussed criminal justice (the Nuremberg model), survivor justice (the South Africa/Rwanda models), and made the case of survivor justice, its underlining assumptions and the context that gave rise to its usages in the African context (South Africa, Rwanda, Mozambique and Sudan) in advancing contemporary peace processes and negotiated agreements. I argued that survivor justice should be seen as a second-best alternative to decisive military victory. Many conflicts in Africa are internal, civil war-type-conflicts, where attempts to achieve victory is untenable. The United Nations has recognized that the ‘majority of perpetrators of serious violations of human rights and international humanitarian law will never be tried, whether internationally or domestically’ (United Nations Security Council, p. 15). This realization has contributed to making the case for survivor justice as a way of facilitating the settlements of ongoing conflicts and reconciliation in the aftermath of violence. These approaches represent a trade-off between impunity and structural reform, but it should be noted that survivor justice is not confined to Africa. Mamdani showed that it can be seen in practice ‘from post-Franco Spain, to Latin American transition to civilian rule and electoral democracy’ (Mahmood Mamdani).

The future of durable peace in Africa and other contexts where violence is ongoing, and a negotiated settlement is difficult to reach rests on a flexible mechanism that combines political reform with judicial reconciliation, built on a hybrid foundation of local institutions and regional/international best practices to complement domestic institutions. Justice that avoids a zero-sum logic stands a better chance in the search of durable peace in divided societies where decisive military victory is untenable.

Courts cannot solve problems that are political in nature. This single fact is ignored in popular human rights discourse. By learning selective lessons from World War II, human rights advocates of criminal justice are silent on alternatives to resolving political conflicts by presenting Nuremberg as the only way forward. Even when the preconditions that enabled Nuremberg are absent, advocates and activists continue to peddle an inappropriate theory of justice to conflicts in Africa. Nuremberg style trials are incompatible with the African context today: to hold perpetrators accountable requires that they be defeated and apprehended first.

Courts do not make laws; they only interpret the letter of the law. Lawmaking, deciding what is right or wrong in law, is the domain of politics. In a court of law, one is innocent or guilty, right or wrong, a winner or a loser. In most civil war situations, politics are always present. In divided societies, violence is usually a part of a cycle, driven by issues and politics. The situations in African countries cannot be solved by deploying heavily cosmopolitan frameworks, developed in the west for different purposes, in the hope of solving African problems. To do so requires that we seek solutions from within the parameter of the problem. If the problem is internal to African societies, then the solution must be sought inside of Africa.

Rather than finding concrete answers, this study raised several questions: These questions could stimulate further research on justice. (1) What are the ethical problems of combining impunity with reform and is that a viable option? (2) Should political expediency overrule moral imperatives? (3) What is the place of perpetrators/beneficiaries in society after mass violence? (4) What is peace? Should it be understood simply as the absence of war? (5) What is the place of social justice and social democracy within the parameter laid out by the two paradigms of justice?