Round three, Saturday, April 7, 1:45 – 2:45

Helena Cobban

(Sumary Notes by Elizabeth DuVerlie)

Brief history: Post-WWII era, there was the Universal Declaration of Human Rights and the Nuremberg Court—the first int’l military tribunal, the first time any body had held individuals responsible for human rights abuses who were not part of their own culture/country.

Helena gave an historical overview of seeking to set up an international court, despite logjams in the Security Council. Two special courts were set up on an ad-hoc basis. The first one started in 1993 and still continues: ICTY, Intl Criminal Tribunal for Yugoslavia (former Yugoslavia). Then in 1994, ICTR, Intl Criminal Tribunal for Rwanda. The Clinton administration was willing to deploy squads of prosecutors but was not willing to send troops to prevent the war—the infatuation with prosecutors being "unique to US culture."

In 1998, the first permanent court came into being: the International Criminal Court. It will become permanent when 60 countries ratify, and so far 29 countries have. Helena is currently researching the validity or usefulness of an ICC. One drawback is that it overrides any other approach a country might have, e.g., a TRC (Truth and Reconciliation Commission). In South Africa the TRC laid the basis for considerable inter-group healing.

The three courts above all represent the concept of "justice." Yet what is one’s starting point for a claim for justice? Ancient history? The 1948 Declaration of Human Rights? And who legislates for these courts? This is unexamined, to date. Nuremberg was the victors’ court. For the recent (’90s) ones, it’s Security Council member states who legislate, and many individual citizens in various countries do not feel adequately represented by their states.

The TRC did draw out a great deal of truth. In a criminal trial, the incentives are for a defendant to hide or minimize what he/she has done. There is "justice" vs "truth," and then there is also the important value of "peace," and too few people in the human rights community give much attention to that, because they are focused on justice. What about a right to peaceful development? How could we promote that? It doesn’t appear in the "litany of human rights." States are always wary of giving up their right to wage war! Mostly, people just go for a realpolitik approach.

Returning to critique of criminal justice approach to incidents of mass political violence:

1. It infantilizes victims by interposing the court between them and the perpetrator. (The mythic context; the Perry Mason image. Victims have no deciding power.)

2. Manichean philosophy; the state is always right and the perpetrator always wrong. (Example of Dutch children in the 50s being taught that "the Germans are bad, therefore we are good.") Then there is the Quaker approach of finding that of God in every person, since putting people in polarized, opposite boxes is not a way to build peace.

( Helena referred the group to a book by Phyllis Hainer: The Unspeakable Truth, "a wonderful book.")

Helena referred to the great sadness she and others see in people, not only because of the losses and the horrors they have endured, but because of the lack of opportunities for healing. The criminal process does not provide nearly as much opportunity for healing as other approaches could.

Over the next several months, she will be comparing Rwanda and South Africa. The Rwanda situation remains more of a Manichean approach than the truth commission approach. She will also look at the approach in Mozambique: undertaking traditional healing rituals. It is very different from the traditional Western "getting-at-the-truth" model. She would like to look at such traditions in all societies, all of which are getting crowded out by the criminal court systems worldwide.

See 85^th Psalm: "Mercy and truth are met together…."

Q&R (Questions—or comments—and responses)

Q. Instances in South Africa. where surviving family members felt they got no help having lost their breadwinner, no therapy, no land reparation, or other help.

R. Yes, it was an imperfect process.

         Q. What about vengeance?

A. In African societies, the needed response is healing. The need for "Justice," often implying vengeance, is more Western. You need to be concerned about both the victim and the perpetrator, and healing for both.

         Q. One variation, considered in Bosnia: a TRC but no amnesty. An attempt to get one
          coherent story. But this would be a victims’ accounting and not a perpetrator’s confession. It             needs the broad relationship of commitment and caring. ________ of Sudan, now at the UN,             brings awareness of this, but the UN is completely dedicated to the criminal justice system,             overrunning traditional, restorative approaches like a Tsunami!