ICTJ in the News

September 13, 2003

Boraine: The Apologies of Mesic and Marovic Are Just the Beginning

Jutarnji List

By Orlanda Obad

If we compare the process of reconciliation with a marathon, this week's apologies by the Presidents of Serbia and Montenegro and Croatia should be viewed as the starting line. At least that's how it's interpreted by Alexander Boraine, president of the International Center for Transitional Justice (ICTJ), an international organization headquartered in New York that focuses on various aspects of reconciliation in transitional societies. "An apology is, in any case, a very powerful weapon, but apologies must always be followed by concrete actions," says Boraine, a law professor at New York University and a former member of the South Africa Truth and Reconciliation Commission.

Concrete actions, as defined by Boraine, are, in reality, a series of strategies that within the last ten years have been grouped together under the rubric of "transitional justice." The main goal of these strategies is reconciliation or the recovery of relations disrupted by conflict, and a rejection of the national saying "it was, therefore, it's done." To the contrary, one of the fundamental presumptions about turning to the future, as stated in documents from the transitional justice field, is exactly a confrontation with the past.

As articulated in one of the ICTJ's programs, there at least five approaches at the core of the reconciliation process that are geared toward resolving cases of human rights violations and have so far proven successful:

1. Prosecutions/trials;
2. Establishing the facts and seeking the truth;
3. Reparations;
4. Disclosing "collective memory;" and
5. Institutional reform.

Contrary to expectations, prosecutions don't carry the greatest weight, even though they possess the highest institutional power to achieve justice. As is so clearly shown by activities at The Hague, the problem is that because of realistic limitations, these long and expensive processes cannot punish all perpetrators. In addition, problems of inadequate evidence, inadequate witness protection, and weak and corrupt judicial systems jeopardize the carrying out of effective and uncompromised prosecutions in many countries. Aside from the acknowledgement of victims and punishment of perpetrators, trials must instill the trust of citizens in government institutions. Precisely because they strengthen the local prosecutory power and clearly show the direction of political and social change in communities in transition, preference is given to national trials, along the lines of those that took place in Greece in the 1970s after the reestablishment of democracy. At the same time, the biggest drawback of international trials-like those being conducted at The Hague-is their geographic and cultural distance from the places where the crimes were committed. Because of this distance, it is generally perceived that international trials have a lesser impact on reforming government institutions. The newest prosecutory model is the so-called "hybrid tribunal," which was first created in Sierra Leone, in which both domestic and international judges simultaneously apply both domestic and international law.

A very important strategy is geared towards the pursuit of the "truth." This is seen as especially meaningful in regions like the former Yugoslavia, where-from Vukovar to Srebrenica-different versions of "what happened" and "who is to blame" exist. Here, it is certainly not enough for foreign experts to establish the facts, but it is also imperative to rehabilitate our own historical mainstream, that is, a minimal consensus to be included in history textbooks that future generations will study. Special significance is given to "truth commissions," which must comprise individuals considered to be impartial. The goal of truth commissions-more than 25 of which have been set up around the world-is to establish the facts on paper about the misuse and violations of human rights in a specific period. The work of truth commissions is, by law, concluded with a report containing both conclusions and recommendations.

One of the most well known commissions is the South Africa Truth and Reconciliation Commission, which, from 1995 to 2001, investigated the nature, causes, and consequences of gross violations of human rights during apartheid. One of the most distinctive aspects of the Commission's work and one of the most innovative characteristics of its whole process is the amnesty provision. In exchange for a complete revelation of facts about "politically motivated" crimes, perpetrators can apply for amnesty from prosecution for the crimes they committed. Because the hearings were public, perpetrators were confronted with public hearings even in cases in which they were spared from prosecution.

Thanks to the amnesty provision, the Commission collected a lot of information, not only from victims, but also from perpetrators. In the course of the process, more than 7000 individuals sought amnesty, but by 2001, only 1160 people were actually granted it. The final report, handed over to President Nelson Mandela in 1998, established that a majority of the crimes were committed by the former regime and its security forces, but also that the "independence movements" violated human rights. These movements do not carry the same amount of blame as the former government because it was concluded that the largest responsibility rested on those who held the most power and that apartheid is a crime against humanity.

The question of reparations is one of the most problematic strategies on the road to reconciliation. There are two basic types of reparations: 1) material reparations, which, in addition to monetary compensation, can include health or educational benefits; and 2) symbolic reparations, including official apologies, memorial centers, or the proclamation of a national holiday. Material reparations are, without doubt, problematic for several practical reasons: if, for example, the number of those individuals who receive compensation is too large, the amount to which an individual claims a right will be unprecedented. On the other hand, if the number of individuals receiving compensation is too small, many who deserve compensation will be left out. A separate dilemma is whether reparations must be allocated to individuals for the harms they suffered, or to whole groups. Without doubt, the most comprehensive program for material compensation was applied by Germany to the case of holocaust victims. From 1951, when the program was started, to the present day, victims were paid more than $60 billion. The German finance ministry estimates that the amount will increase by an additional $20 billion by the year 2030. In total, more than 500,000 individuals in 70 countries received some form of compensation.

Finally, it is thought that reconciliation is impossible without the reform of institutions that allowed human rights violations to happen, or those which were directly involved in committing those violations. Such changes include the removal of those who were involved in committing these crimes from public office; the creation of new institutions for the protection of human rights; the restructuring of institutions involved in the crimes; and various other constitutional and legal changes.