“Reconciliation” does not, as far as I know, have one fixed and clear meaning, so for the purpose of this article I offer the following definitions. One kind of reconciliation can involve wide-ranging public efforts to restore order, facilitate dialogue, reestablish trust, and mend the broken social links to make society functional again, “as it was before the war” (which, of course, in most cases is neither possible nor desirable). Examples could be supporting a public dialogue in the media between the adversarial parties; resetting the public narrative of the conflict; reopening schools and workplaces; encouraging people to cooperate and work together again; rebuilding homes, hospitals, factories, religious centers, government quarters, radio stations, and other structures; and mending infrastructure such as roads, bridges, harbors, and airports.
Reconciliation, however, can also be more specific, involving perpetrators and victims directly in a dialogue or mediation, typically one guided by a neutral mediator whose task is to allow the parties to meet face to face and exchange views without rage or revenge. Most victims of war crimes and human rights abuses feel a strong and urgent need to have their suffering and pain exposed to the outside world, and many also want an opportunity to direct their anger at the perpetrator. This second need, which requires some form of direct communication between perpetrator and victim, is a difficult and extremely dynamic scenario that can easily get out of control. The two parties need to be able to reach each other in circumstances where power, domination, and fear have been defused or at least reduced, which is not easily accomplished in the wake of horrendous crimes such as systematic rape, sexual violence, enforced slavery and prostitution, murder, torture, deportation, persecution, and ethnic cleansing.
Such reconciliation practices have happened in South Africa and Latin America, where Truth and Reconciliation Commissions (TRCs) have succeeded in facilitating encounters between perpetrators and victims, in private or in public. These have brought to the table crucial admissions, facts, leniency, and closure – elements that are hardly possible in the context of an international criminal trial. By either definition, reconciliation is a comprehensive, time-consuming, sensitive, and costly exercise.
“Healing,” in contrast, is the therapeutic, restorative personal work that engages the victims, individually or collectively, in a process designed to overcome or at least to soothe the mental wounds – the anger, the fear, the sorrow, and the shame – that came out of the atrocities. The perpetrator’s genuine expression of remorse and the victim’s extending some sort of tolerance or mercy in response are certainly useful elements of any healing process, but healing does not necessarily depend on having the perpetrator on board as part of the process; it is in many or most cases an internal development for the victim to liberate the troubled soul inside. Healing efforts often include the perpetrator’s account of what happened on the ground and why, which in itself can be greatly alleviating or relieving for victims who long to understand the conditions under which they were tortured or their loved ones killed; that, again, can bring closure in the surviving victim’s mind. But healing, too, is an extremely complex matter.
“Criminal justice” is something much more specific and factual. Under international humanitarian law, it has long been an accepted rule that perpetrators of serious crimes committed against protected persons or targets in or typically related to armed conflicts must be brought to justice. Looking deeper into this precept and the reasons for punishment, we come across the usual criminological motivations embedded in the realm of prosecution and punishment – in other words, restitution (justice for victims); retribution (a nicer word for revenge); prevention (general or particular deterrence); restoration (reestablishment of lost rights or property); rehabilitation (re-integrating the perpetrator into society); and reprobation (public shaming of the perpetrator). These motives for administration of punishment are, as many criminal lawyers say, applicable for “ordinary” criminals who committed their crimes for personal or economic reasons and who can – perhaps – be led back to a socially acceptable track.
But that is rarely the case with war criminals, most of whom are elderly, well-educated men (and occasionally women) in powerful positions such as ministers, politicians, business leaders, or high-ranking officers who took action for ideological and political, rather than personal or financial, reasons and were driven by a sense of patriotic or nationalistic duty. These individuals are less inclined to be affected by any of the motives we adduce as legitimate reasons to punish. Criminal justice is simply about establishing criminal legal responsibility (guilt) for deliberate violations of the law and administering punitive sanctions against the perpetrators.
International criminal tribunals and courts
The International Criminal Tribunal for the former Yugoslavia (ICTY) was a unique United Nations court of law that dealt with war crimes committed during the conflicts in the Balkans in the 1990s, years that saw bitter and violent fighting between and among friends, neighbors, and even family members in the State once known as the Socialist Federal Republic of Yugoslavia. The six republics of the former Yugoslavia were Bosnia & Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia. After the economic and political crisis of the late 1980s following the collapse of the Soviet Union and the rise of nationalism among former Soviet republics, Slovenia quickly managed to wrest itself free of Serbia’s dominance, but the remaining five constituent Yugoslav republics were caught up in an armed conflict with Serbia, refusing to submit to Serbian rule in a “Greater Serbia” and subsequently also between Croatia and Bosnia, all of which led to fierce fighting throughout the former Yugoslavia. In 1993, the UN Security Council agreed to establish – and pay for – a truly international criminal tribunal to prosecute persons responsible for genocide, crimes against humanity, and war crimes committed on the territory of the former Yugoslavia. This was the first such tribunal after Nuremberg and Tokyo.
During its mandate, which lasted from 1993 to 2017, the ICTY changed the landscape of international humanitarian law, gave victims opportunities to describe the horrors they witnessed and experienced, and proved that those suspected of bearing the greatest responsibility for atrocities committed during armed conflicts could be called to account.
It was only with the establishment of two UN criminal tribunals, for the territories of the former Yugoslavia (ICTY) and for Rwanda (ICTR), that the world finally saw international criminal tribunals with criminal jurisdiction over individuals directly based in international law i.e. the UN Security Council Resolutions 827 (1993) for Yugoslavia and 995 (1994) for Rwanda. Both statutes listed genocide, crimes against humanity, and war crimes as crimes falling within the tribunals’ jurisdiction.
Since then, we have seen the establishment of the permanent International Criminal Court (ICC, 2000) in The Hague, which has now been ratified by 123 states – but not by major powers such as the United States, China, or Russia – and later the special interim international criminal tribunals for Sierra Leone (STSL, 2002), Cambodia (ECCC, 2003), and Lebanon (STL, 2006), all of which were established (and paid for) according to ordinary international treaties between neighboring or affiliated countries (thus not by the UN Security Council).
The crimes and individual criminal responsibility
When people involved in international law speak of the international crimes under international humanitarian law, we usually mean genocide, crimes against humanity, war crimes, and most recently aggression.
These international crimes are drawn up in international treaties in which states have agreed to criminalize and prosecute those offenses in their domestic criminal law. States have also agreed to extend their criminal jurisdiction beyond their territory to enable states’ parties to prosecute every perpetrator of those felonies regardless of where they were committed or by whom, provided only that the perpetrator is actually present on its territory. A war crime or an act of terror or torture committed by, say, a French citizen in the Republic of Mali against a British national can therefore be tried by a United States court if the French perpetrator shows up and is arrested on American soil. That is the essence of universal jurisdiction, the purpose of which is to ensure that these crimes might never remain unpunished.
For someone to be held individually responsible for a crime, including an international crime, the court must be convinced, based on the evidence and beyond reasonable doubt, that the accused has in fact carried out (or assisted in carrying out) the factual elements of the crime with the necessary mental intent to commit the crime. Otherwise, the court must acquit.
In practice, however, perpetrators of international crimes have remained largely unpunished, partly because it is difficult in many cases to find and secure the necessary evidence and getting it admitted in court, and partly because in the immediate aftermath of a devastating armed conflict, states are reluctant to risk reigniting the conflict by launching criminal investigations against those most responsible for the atrocities.
The effects of impunity
Impunity means protection from criminal prosecution of acts which otherwise would be punishable in a criminal court. Impunity is known in various forms such as amnesty, which is the collective relief from prosecution of certain crimes committed in the course of an armed conflict or public uprising; pardon, which is given individually to one or more perpetrators due to particular circumstances of the crime; or immunity, which is either offered individually to an offender in return for disclosure of certain crucial information, or generally as diplomatic immunity against prosecution for unlawful acts committed on mission abroad, by nationals in privileged positions as representatives of their state in international relations such as members of a royal family, heads of state, cabinet members, ambassadors, special envoys, high-ranking military officers, or high representatives of an international governmental organization.
These exemptions from punishment, all of which come under the general heading of impunity, have extensive and far-reaching impact.
Impunity in the form of general amnesties or pardon tends to undermine the public trust in the international legal system. Criminalizing certain acts in international conventions is usually the result of difficult negotiations over many years, so for victims, political and military leaders, heads of non-government organizations, and members of the general public who have watched these difficult international negotiations, it is often confounding to find that they were all in vain.
Impunity is particularly devastating for victims who carry the pain of having been tortured, raped, or beaten, or seeing their loved ones be killed or endure such treatment – and then seeing the perpetrators walk away. The essence of their misery, in my experience as a judge, is not so much their rage over the pain, grief, and humiliation as the fact that their suffering is being ignored, overlooked, forgotten, and never acknowledged by the outside world. They sit back with an urgent need to tell their story and have their suffering recognized. For many victims, in other words, the world’s silence, ignorance, and lack of interest in their fate are often worse than the original pain itself.
These two aspects are the main incentives behind the creation of international criminal tribunals to prosecute the perpetrators directly under international law - rather than waiting for the political and security conditions in national jurisdictions to allow (if ever) for prosecution of these crimes in a post-conflict context. Nation states are often limited, in funding, resources, and even desire, to prosecute those responsible for serious war crimes and crimes against humanity committed on their own soil. With independent funds and allegiance only to the truth, not to factions, an international forum is well poised to administer justice.
International criminal justice and reconciliation
What these tribunals can do, first of all, is place criminal legal responsibility on individual perpetrators and establish guilt or innocence based on facts and evidence at trial. These outcomes are important elements of any reconciliation process because they provide a definitive identification of the perpetrators and a final determination of the facts, leaving no doubt about who perpetrated the deeds – and how, when, and where. As many witnesses at the ICTY explained, just having a forum to tell their story to the world is another important step in reconciliation.
As important as this may appear, however, international criminal tribunals have definite limitations. Once the proceedings have been completed and the judges have rendered their judgment, the judges are on to their next case. The verdict is either guilty or not guilty, and that is the end of it. Criminal trials, in other words, are incapable of providing room for addressing the many subsequent and underlying aspects of the complex relationship between a perpetrator, the victims, and society in general. Issues such as reconciliation and healing, subsequent therapy or reparation to the victims, the costs of restoring law and order, or engagement in transitional justice are none of the criminal tribunal’s concerns.
Reconciliation and healing in practice
From my time as a judge at the UN International Criminal Tribunal for the former Yugoslavia, however, I vividly remember one example of reconciliation recounted by a witness during cross-examination.
In a small mountainous village in Bosnia, Bosnian Serbs lived on one side of a creek and Bosniaks on the other. The two sides had fought during the war, and the small bridge over the creek had been blown up, making it difficult for people to come together after the fighting ended. The deadlock was no doubt disturbing for both sides until suddenly one morning, an old woman on the Bosnian side had had enough. She found a board, laid it down, crossed the creek, walked up to one of the Serbian houses, knocked on the door, and exclaimed: “I’m going to town in half an hour. Can I bring you anything?” That, the witness said, was a genuine example of reconciliation.
In another instance, we attempted to help arrange the kind of dynamic, difficult, face-to-face dialogue that, when successful, can bring about some reconciliation and perhaps healing. One of the accused, a commander of a military platoon, had been charged with the massacre of several dozen men in a small village. During the pre-trial phase of his case, he had expressed genuine remorse about the acts he was responsible for and wanted to plead guilty, a plea that we were ready to accept. In an attempt to try to break down the barriers between criminal justice and reconciliation, we planned to arrange for meetings between the accused and some of the surviving victims, after he had been convicted and sentenced by the trial chamber. The plan was to have a group of therapists and trauma experts work with the victims and the detainee for several months before the confrontation, to ensure that everybody understood and willingly accepted the purpose and conditions of the exercise. The confrontation would be safest away from the crime site, and we reserved a week for the entire exercise, with three encounters on Monday, Wednesday, and Friday, to allow time for both sides to digest the outcome of each session. Our idea was to give the accused an opportunity to express his remorse and apologize directly to the victims and, more important, answer their many questions about the details and facts of the massacre, including how and why the operation was planned and carried out, how the victims acted before they were executed, and exactly where it happened. In return, the victims would have an opportunity not only to express their anger and despair directly to the perpetrator but also perhaps to extend some kind of lenience that might allow them to begin to move past the wrongdoing. The accused’s plan to plead guilty, however, was somehow revealed, and his family members were threatened with violence if he went ahead with his plea. Most unfortunately, what could have been an innovative and outstanding combination of criminal justice and reconciliation had to be called off.
International criminal trials are governed by strict criminal legal procedures. Every trial is based on an indictment with criminal charges prepared by the Office of the Prosecutor after criminal investigations in the field and collection of forensic evidence, including interviews with victims and witnesses, examination of crime sites, excavation of mass graves, seizure of documents, fragments, photos, recordings, and other evidence. The defendants, to be sure, have adversarial rights to produce exculpatory evidence and to cross-examine the prosecution’s witnesses in order to counter the charges, but criminal proceedings, by their very nature, are always guilt-driven, strictly formal, involuntary, confrontational, and one-sided, leaving no room for dialogue and no change of legal frame – unless the accused pleads guilty. Once the trial begins, the prosecutor and the accused are both strictly confined in their roles to argue or refute the issue of guilt in the judicial theater of justice. Reconciliation and healing measures, on the other hand, are constructive, informal, voluntary, dialogue-driven, cooperative, and mutually inclusive.
Reconciliation might be possible if there is some degree of openness between the offender and the victim; the truth about what really happened is normally better obtained in the context of a dialogue rather than in a confrontational judicial process. But criminal justice also has the potential to support the reconciliation process by establishing facts and placing individual criminal responsibility, recognizing the victims’ suffering and pain, and boosting public trust in the law.